Re Lee Yik Kwong

HCB 4043/2006

[2019] HKCFI 2912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 4043 OF 2006

________________

________________

____________

DECISION

____________

1.On 15 October 2019, the Court handed down its decision ordering that the property known as Flat C, 5^th Floor, Block 10, Beverly Villas, 16 La Salle Road, Kowloon (“the Property”) be sold under the Partition Ordinance (Cap 352). As the Court did not receive submissions from the parties on how much time the current occupants of the Property should be given to deliver vacant possession, I directed the parties to jointly propose agreed directions for the filing of written submissions to address the timing for the delivery of vacant possession.

2.Directions were subsequently agreed between the parties and written submissions have now been filed and considered by the Court.

3.The applicants submitted that the appropriate period for the delivery of vacant possession of the Property should be 60 days from the making of the order to deliver vacant possession.  The applicants emphasised that no evidence has been provided by the respondent or the current occupants of the Property to suggest that the period should be anything more than 60 days.

4.The respondent submitted that (1) there are special circumstances in this case, namely that Madam Fan (an occupant of the Property) is now 90 years of age and is suffering from dementia and other health problems, and (2) the Property should be vacated within one month after Madam Fan passes away.

5.At the trial, the respondent also sought to rely on Madam Fan’s old age and health condition to contend that there would be very great hardship on Madam Fan in the event that an order for sale of the Property was made.  However, given the paucity of evidence placed before the Court at the trial, I was not satisfied that a case of very great hardship on the part of Madam Fan had been established.  That conclusion was reached by this Court after making a value judgment having regard to the available evidence before it.

6.What is being sought by the respondent now is similar to the arrangement approved by the English court in Re Bremner (a bankrupt) [1999] BPIR 185.  In that case, the trustee in bankruptcy of Mr Bremner sought an order from the court to sell the family home and to terminate Mrs Bremner’s right of occupation in it by invoking section 33 of the Family Law Act 1996.  It was conceded that Mrs Bremner had no interest in the property other than a right of occupation.  By the time of the proceedings, Mr Bremner was terminally ill and his wife was caring for him in the family home.  Her health was also poor.  Mrs Bremner invited the court to approve an arrangement under which the sale of the family home would be postponed until three months after the death of her husband.  Jonathan Sumption QC,sitting as a deputy judge of the High Court, approved the arrangement on the basis that there were exceptional circumstances in the case.  

7.The evidence placed before the court in Re Bremner was summarised by his Lordship at p 186D–E as follows:

“ Mr Bremner is now 79 years old and in very bad health. I have a substantial body of medical evidence before me which establishes that he suffered a stroke in 1994 and may have suffered a further stroke later, and that he has suffered for some time from high blood pressure and hernia. More recently, he has been diagnosed as having an inoperable oesophageal cancer and his expectancy is reckoned in months, probably no more than 6 months. Mr Bremner is housebound. His wife, who is 74 years old, is his only carer. The medical evidence is that the stress associated with his eviction from his home would clearly reduce his life expectancy and would probably lead to a fatal stroke or heart attack.”

8.It was against, inter alia, such evidence that the learned Judge considered the circumstances to be exceptional and approved the arrangement under which the sale of the family home would be postponed until three months after Mr Bremner’s death.

9.In the present case, as mentioned in my Decision dated 15 October 2019, no medical evidence of Madam Fan of any kind was placed before the Court at the trial.  On the basis of the very limited evidence regarding the personal circumstances regarding Madam Fan before the Court, I am unable to conclude that there are exceptional circumstances to justify the order sought by the respondent. 

10.Having taken into account all the available evidence, I consider it appropriate to make an order that vacant possession of the Property should be delivered within 90 days.

11.I also make an order nisi that the applicants’ costs of and occasioned by the preparation of the written submissions be paid out of the estate of the Bankrupt.

Written submission by Mr Toby Brown, instructed by Gall, for the 1^st and 2^nd applicants

Written submission by Mr Simon Wong, instructed by Fongs, for the respondent