Leung So Hung Siem v. Carson Wen

HCB 4036/2018

[2020] HKCFI 1079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 4036 OF 2018

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J U D G M E N T

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Introduction

1.This is my judgment on the bankruptcy petition and my decision on the petitioner’s summons dated 9 January 2020 for leave to amend the petition and the four summonses issued by the debtor, Ms Leung So Hung Siem (“Ms Leung”), dated 9 and 31 December 2019 and 7 and 28 May 2020 respectively.

2.The petition is based on judgment debts arising from four costs orders.  The first three costs orders are the subject matter of a statutory demand dated 2 May 2018.  The fourth is the subject matter of another statutory demand dated 11 May 2018.  Both statutory demands have been personally served on Ms Leung.

Background to the costs orders

3.The costs orders have arisen as follows.  Ms Leung is the sole plaintiff in HCA 121/2017, an action that she instituted against the petitioner as the 1^st defendant and five others as the 2^nd to 6^th defendants for HK$2.5 billion said to be an outstanding fee for introducing certain investors and for rendering services to the defendants (“the Action”).

4.The first costs order arose in this way.  On 8 May 2017, upon the application of the petitioner and the 5^th defendant in the Action, Master Hui ordered Ms Leung to give discovery and to provide further and better particulars of her statement of claim.  The Master also ordered Ms Leung to pay costs summarily assessed in the sum of $20,000 to the petitioner and the 5^th defendant forthwith.  Ms Leung had paid $10,500 under this costs order on 26 June 2017, but the balance of $9,500 remains unpaid.  Her appeal against Master Hui’s decision was dismissed by Deputy Judge Kent Yee on 21 December 2017.  (According to Ms Leung, she has very recently in June 2020 filed an application for leave to appeal out of time against the decision of Deputy Judge Kent Yee.)

5.The second and third costs order arose in this way.  On 17 November 2017, on the application of the petitioner and the 2^nd and 4^th to 6^th defendants in the Action, Master Hui ordered Ms Leung to provide further and better particulars of the particulars served pursuant to the earlier order of 8 May 2017, and also ordered her to pay costs assessed in the sum of $37,000.  On 29 March 2018, on Ms Leung’s appeal, Deputy Judge Keith Yeung SC dismissed the appeal as far as the 1^st defendant (the petitioner herein) and the 4^th and 5^th defendants were concerned, but the judge considered that the 2^nd and 6^th defendants were not legal entities and had no capacity to join in the application for particulars, and reduced the Master’s costs order to the amount of $22,200 payable to the petitioner and the 4^th and 5^th defendants.  The Deputy Judge also ordered Ms Leung to pay the costs of the appeal to the petitioner and the 4^th and 5^th defendants, summarily assessed in the sum of $45,000.  (Ms Leung subsequently applied for leave to appeal to the Court of Appeal out of time.  Her application was dismissed by K Yeung J on 19 September 2019,[1] and again by the Court of Appeal on 24 December 2019.[2])

6.On 2 May 2018, the petitioner issued a statutory demand based on the above debts of $9,500, $22,200 and $45,000 together with interest up to that date, in the aggregate sum of $77,646.34 (“the First Statutory Demand”).

7.The fourth costs order arose in this way.  On 26 April 2018, on the application of the 1^st, 4^th and 5^th defendants in the Action, Master Lui struck out the amended writ and the amended statement of claim in the Action and ordered costs against Ms Leung assessed in the sum of $88,250.  (Ms Leung subsequently appealed against the decision out of time.  On 6 September 2018, Mr Recorder Houghton SC dismissed the appeal.[3]  Her further appeal was struck out by the Court of Appeal on 23 January 2019 on the ground that the Recorder’s decision was an interlocutory one and Ms Leung had not obtained leave to appeal against it.[4])

8.On 11 May 2018, the petitioner issued a statutory demand in respect of Master Lui’s costs order for $88,250 together with interest up to that date, in the aggregate sum of $88,540.14 (“the Second Statutory Demand”).

Proceedings relating to the statutory demands

9.On 23 May 2018, Ms Leung lodged an application to set aside the First Statutory Demand (HCSD 15/2018).  On 29 June 2018, Deputy Judge Leung dismissed her application with costs.[5]  On 21 June 2019, the Court of Appeal dismissed Ms Leung’s appeal from Deputy Judge Leung’s decision.[6]

10.On 28 May 2018, Ms Leung also made an application to set aside the Second Statutory Demand (HCSD 16/2018).  Her application was dismissed by Anthony Chan J on 20 November 2018.[7]  Her appeal was dismissed by the Court of Appeal on 19 December 2019.[8]

The petition proceedings

11.On 16 July 2018, the petition herein was presented based on the four costs orders referred to above and the First and Second Statutory Demands.  There were four hearings before the masters.[9]

12.On 5 June 2019, Ms Leung filed a “Notice of Intend to Dismiss the Petition” (sic) together with an affirmation dated 4 June 2019. 

13.The petition came before Au‑Yeung J on 12 August 2019.  Her ladyship adjourned it to a date to be fixed for argument, gave leave to Ms Leung to file and serve an affirmation in opposition within 7 days to incorporate the documents attached to her skeleton submissions lodged for the hearing of 12 August 2019 if those documents had not been exhibited to any prior affirmation, and directed that no further affirmation be filed without leave of the court.

14.On 16 August 2019, with the permission granted by Au‑Yeung J, Ms Leung filed her (2^nd) affirmation in opposition. 

15.The petition was set down for hearing before me on 7 January 2020.

16.On 9 December 2019, Ms Leung filed a summons with the title “Summons for adding new facts and new evidence a) b) c) and to be supported by affirmation on hearing dated Jan 7, 2020 at 10a.m.”.

17.On 16 December 2019, without leave of the court, Ms Leung filed a “Notice by Debtor of Intention to Oppose Petition” and her (3^rd) affirmation dated 16 December 2019 in support of her summons dated 9 December 2019.

18.On 31 December 2019, Ms Leung filed a further summons with the title of “2^nd Summons for adding new facts and new evidence and to be supported by affirmation on hearing dated Jan 7, 2020 at 10a.m.” and also, without leave of the court, her (4^th) affirmation made on the same date in support of that summons.

19.On 2 January 2020, this court also received Ms Leung’s written submissions intituled “Written Submission for Dismissing of Bankruptcy Petition due to Defendants’ ‘Fraud’ & ‘Perjury’ during legal process”.

20.On 6 January 2020, this court raised a question to the petitioner’s solicitors by letter copied to Ms Leung, concerning the fact that when the petition was presented, Ms Leung’s application to set aside the Second Statutory Demand had yet to be heard and determined, contrary to the statement in paragraph 7 of the petition that no application to set aside that demand was outstanding. 

21.At the hearing on 7 January 2020, Ms Wallis Chung, who appeared on behalf of the petitioner, opposed Ms Leung’s summonses and submitted that a bankruptcy order should be made.  Ms Leung appeared in person and made oral submissions in support of her summonses and in opposition to the petition.  As to paragraph 7 of the petition, Ms Chung handed in supplemental written submissions that morning, contending that the inaccuracy did not affect the validity of the bankruptcy proceedings.  In oral submissions, Ms Chung gave an explanation and undertook on behalf of the petitioner to file and serve an affirmation to put that explanation into writing.

22.In fairness to Ms Leung, I gave her permission to respond, by written submissions to be lodged within 21 days, to the petitioner’s supplemental submissions and the supplemental affirmation to be filed by the petitioner.

23.Also, at the hearing on 7 January 2020, Ms Leung sought to hand up a number of pages of documents being, according to her, a complete copy of the contract she relied upon for the claims in the Action and certain related emails.  There being no opposition from Ms Chung, I gave leave for Ms Leung to exhibit those pages to an affirmation to be filed within 21 days.

24.On 9 January 2020, the petitioner filed an affirmation made by himself, as undertaken, and also issued a summons for leave to amend the petition in light of the erroneous statement about the Second Statutory Demand.  On 14 January 2020, the petitioner filed an affirmation of his solicitor Mr Leung Tat Kin Anthony, explaining further how the misstatement in paragraph 7 of the petition came about and asking for leave to amend.  The summons for leave to amend the petition was originally scheduled to be heard on 10 February 2020, but had to be adjourned because of special arrangements necessitated by the COVID‑19 outbreak.  Ms Leung objected to the disposal of that summons on paper.

25.On 13 March 2020, when the High Court Registry reopened, pursuant to the permission I gave her at the hearing on 7 January 2020, Ms Leung filed (i) a document with the title “Comments on paragraph 7 of the Petition being contrary (Cap 200 O.39) written by the petitioner creditor and effect and impact this may have on me under Court Orders dated Jan 6, 7, 2020 before the Hon Mr Justice G Lam”; (ii) a document with the title “Supplementary Submission for hearing on Jan 7, 2020 at 10:00 a.m.”; and (iii) an affirmation dated 13 March 2020 exhibiting the documents that she had sought to hand up at the hearing.

26.The petitioner’s summons to amend, which was initially re‑scheduled to 7 April 2020, had to be adjourned again due to public health considerations.

27.On 7 May 2020, Ms Leung issued a “Summons for adding new evidences/facts newly founded supported by affirmation of Leung So Hung Siem dated May 7, 2020” (sic) and filed a further affirmation of that date in support of that summons, which was the third summons she had issued for adducing further evidence.  Ms Leung’s summons was returnable on 2 June 2020.  Despite her objection, I directed that the petitioner’s summons for leave to amend the petition be fixed at the same time, as that course seemed to me to be conducive to the efficient administration of justice.

28.On 28 May 2020, Ms Leung lodged her written submissions for the hearing on 2 June 2020.  On the same date, she filed a “4^th Summons for adding new evidences/facts newly founded supported by affirmation of Leung So Hung Siem dated May 28, 2020” (sic), accompanied by her affirmation of the same date, with an exhibit of 537 pages described as “Attachments: New Evidence Hearing Bundles for June 2, 2020” whose contents are listed at pages 7 to 14 of her affirmation.

29.At the hearing, Ms Chung again appeared for the petitioner and Ms Leung appeared in person.  They addressed me on the petitioner’s amendment application and Ms Leung’s summons is to adduce further evidence.

Ms Leung’s application to adduce her 3^rd and 4^th affirmations (summonses of 9 and 31 December 2019)

30.The text of the summons of Ms Leung of 9 December 2019 is not fully intelligible.  It appears that Ms Leung complains that the affirmations and summons of the defendants in the Action were “false” and “fraudulent”.  By that summons:

(1)     Ms Leung seeks leave to adduce the affirmations and the respondent’s submissions submitted in her applications (HCSD 31/2019 and HCSD 32/2019) to set aside two subsequent statutory demands issued by the petitioner against her based on other costs orders;

(2)     Ms Leung also asks this court to “reverse the dismissal of my request” for the audio CD record of a number of hearings in various proceedings.

31.Ms Leung’s summons of 31 December 2019 seeks leave in effect to adduce and rely on the exhibits to her 4^th affirmation of the same date.  

32.As mentioned above, Ms Leung’s 3^rd and 4^th affirmations and the exhibits to them were filed without leave of the court on 16 and 31 December 2019 respectively.  At the hearing, I let Ms Leung refer to these affirmations on a provisional basis subject to this court’s ultimate decision on whether she should actually be permitted to rely on them for the purpose of opposing the petition.

33.Ms Leung’s 3^rd affirmation dated 16 December 2019 exhibited:

-     her two affirmations dated 31 October 2019 in HCSD 31/2019 and HCSD 32/2019 together with the exhibits thereto;

-     the written submissions, supplemental submissions and lists of authorities of the respondent (ie the petitioner herein) for the hearing of the applications in HCSD 31/2019 and HCSD 32/2019 on 22 October 2019;

-     letters from the court refusing Ms Leung’s requests for the audio record of various hearings in the Action, and in HCSD 40/2018, HCSD 7/2019, HCSD 31/2019 and HCSD 32/2019;

-     a judgment of the Commercial Court of the British Virgin Islands (“BVI”) dated 19 December 2018 in an action brought by two parties against, among others, the petitioner herein, to claim 22% of the shares in the Bank of Asia (BVI) Ltd.

34.Ms Leung’s 3^rd affirmation itself is not easy to comprehend.  It seems that she asserted, among other things, that the defendants in Action owed her in excess of $100 million for legal fees and $2.5 billion per year in introduction fees since 3 June 2015; that the documents sought by the defendants in the Action were already in their possession.

35.Ms Leung’s 4^th affirmation exhibited:

-     an investor presentation by Cheung Kong Property Holdings Ltd on 11 May 2015;

-     certain public announcements concerning CK Asset Holdings Ltd and Greater China Financial Holdings Ltd respectively;

-     certain public corporate information about Renrui Human Resources Technology Holdings Ltd;

-     the same judgment of the British Virgin Islands court as exhibited to her 3^rd affirmation.

36.Ms Leung’s 4^th affirmation itself is no more intelligible than the third.  In it she continued to assert that the defendants to the Action owed her legal fees in excess of $130 million and $2.5 billion per year in introduction fees.  She set out certain details about the documents exhibited but in my view failed to show that they had any intelligible meaning for these proceedings.

37.It seems to me that the new materials Ms Leung seeks to adduce by these two summonses are irrelevant.  HCSD 31/2019 is the application which Ms Leung made to try to set aside the statutory demand issued by the petitioner against her dated 17 July 2019 in respect of costs orders made against her in HCSD 15/2018, HCSD 16/2018, CACV 357/2018 and HCA 121/2017 respectively together with interest, in the total amount of $157,811.41.  HCSD 32/2019 is the application by which Ms Leung sought to set aside another statutory demand issued by the petitioner against her dated 17 July 2019 based on a costs order in HCSD 40/2018 together with interest, in the total sum of $50,133.56. Those proceedings are not relevant to the debts relied upon in the present petition.

38.As for the audio recordings of the various hearings in question, quite apart from the point that there is no jurisdiction for this court in these proceedings to “reverse” the previous decisions of the other judges and judicial officers to refuse Ms Leung’s requests, she has failed to satisfy this court that the recordings will be of any relevance for present purposes.

39.Accordingly, I refuse Ms Leung’s applications by her summonses of 9 and 31 December 2019 respectively, which are dismissed with costs to the petitioner (as an order nisi).

Ms Leung’s (3^rd) summons dated 7 May 2020 to adduce further evidence

40.By her summons dated 7 May 2020 Ms Leung seeks leave to adduce further evidence in these proceedings.  Her affirmation of the same date referred to 10 public announcements made by or in relation to various listed companies since March 2020. 

41.The argument on the petition was completed on 7 January 2020.  Subject only to the affirmation this court allowed Ms Leung to file to exhibit the documents she handed up and the supplemental submissions on paragraph 7 of the petition, both the evidence and the argument on the petition had been “closed”. It may be possible, in exceptional circumstances, for the court to reopen the argument and allow further evidence to be filed after a substantive hearing of a matter, but I do not see any such justification in the present case.  Ms Leung’s affirmation of 7 May 2020 asserts that her fees have been retained by various parties including listed companies and lawyers, and asserts that various orders were wrongly made against her in various sets of legal proceedings.  She again alleges that the defendants in the Action lied when they asserted that they did not have the information and answers they sought by way of particulars.  She also asserts that both Deputy Judge Keith Yeung SC and Mr Recorder Houghton SC perverted the course of justice by dismissing her appeals.  There is no basis for these outrageous allegations.  Nor are the public announcements of any relevance in these proceedings.  They plainly do not constitute sufficiently precise evidence to show that Ms Leung has substantial grounds to dispute the judgment debts on which the petition is based.

42.Accordingly, Ms Leung’s summons dated 7 May 2020 is dismissed with costs to the petitioner (as an order nisi).

Ms Leung’s (4^th) summons dated 28 May 2020 to adduce further evidence

43.By her 4^th summons dated 28 May 2020, Ms Leung seeks leave to adduce further evidence in opposition to the petition.  The new evidence is in the form of 537 pages of documents exhibited to her affirmation dated 28 May 2020.  An index is set out at pages 7 to 14 of the affirmation.

44.In the affirmation, Ms Leung mentioned the names of various individuals and companies and said that they were her former clients who were introduced by her to the petitioner.  Other than certain documents extracted from other proceedings, the exhibits mainly consist of information about these individuals and companies.

45.As mentioned above, the hearing of the petition had been concluded on 7 January 2020 subject to the specified outstanding matters.  It is in my view an abuse for Ms Leung repeatedly to try to put in further evidence in the way she has done after the hearing.  In any event, the materials in her affirmation of 28 May 2020 do not show any bona fide dispute of the petition debts or any genuine cross‑claim with substantial grounds.  They do not assist Ms Leung in opposing the bankruptcy petition.  Ms Leung’s 4^th summons is therefore also dismissed with costs to the petitioner (as an order nisi).

Petitioner’s summons for leave to amend petition

46.As mentioned above, the statement in paragraph 7 of the petition that there was no outstanding application to set aside the Second Statutory Demand is incorrect. 

47.In the 2^nd affirmation of the petitioner filed on 9 January 2020, he said he had a general impression that all outstanding applications to set aside statutory demands had been dismissed as he had been so informed in generic terms.  He failed to remember the exact details of all the proceedings and he did not ask for all the court papers to be placed before him before he signed the verifying affirmation.  In the 2^nd affirmation of Leung Tat Kin Anthony filed on 14 January 2020, Mr Leung said that he had entrusted the task of preparing the draft petition to a senior litigation clerk of his firm.  At the time of issuing the petition, Mr Leung only remembered that the application to set aside the First Statutory Demand had been dismissed and failed to realise that the one relating to the Second Statutory Demand was still pending.  Both the petitioner and Mr Leung said they were sorry for their oversight.

48.The proposed amendments to the petition consist of the deletion of the words “and no application to set it aside is outstanding” at the end of paragraph 7 which relates to the Second Statutory Demand, and the addition of a new paragraph 7A which reads:

“ The application to set aside the statutory demand dated 11 May 2018 under HCSD 16/2018 proceedings was still outstanding as of the date of the issue of the Creditor’s Petition. However, after the issue of the Creditor’s Petition, the said HCSD 16/2018 proceedings and all other legal proceedings in relation to the Debtor’s applications to set aside statutory demands dated 2 May 2018 and 11 May 2018 have been disposed of and dismissed by the Court against the Debtor with costs in favour of the Petitioning Creditor.”

49.At the hearing on 7 January 2020, Ms Chung on behalf of the petitioner expressly accepted that, since Ms Leung’s application to set aside the Second Statutory Demand was still outstanding as at the date of the petition, the words in paragraph 7 of the petition were incorrect, and that the petitioner could not rely on the Second Statutory Demand (and, therefore, the fourth costs order referred to above) as the basis for the petition in these proceedings.

50.That being the case, paragraphs 4 and 7 of the petition which concern the Second Statutory Demand are of little significance.  The proposed paragraph 7A which seeks to aver that after the petition was presented, the application to set aside the Second Statutory Demand was dismissed with costs, seems to me to be irrelevant.  For this reason I do not consider that this court should accede to the application for amendment, made unusually as it was after the substantive hearing of the petition, save to delete the mistaken phrase “and no application to set it aside is outstanding” at the end of paragraph 7.  The petitioner’s application for leave to amend is therefore allowed only to that limited extent.  There is no dispute that the costs of and occasioned by the application should be paid by the petitioner to Ms Leung and to the Official Receiver.  The Official Receiver’s costs of the application are to be deducted from the petitioner’s deposit.

The Petition

51.There is, in my view, no defence to the petition based on the First Statutory Demand, whether or not the further evidence put forward by Ms Leung is admitted.  As can be seen above, Ms Leung’s challenges against the first three costs orders have failed and been eventually rejected by the Court of Appeal.  Her application to set aside the First Statutory Demand was dismissed, and her appeal from that dismissal has also been rejected by the Court of Appeal.

52.As stated by Ng J in Re Chan Hon Kwong (HCB 6548/2016, 27 April 2017), at §12:

“ Where the underlying debt is based on a judgment, the court hearing the bankruptcy petition will treat the judgment as prima facie evidence that the judgment debtor is indebted to the judgment creditor. In appropriate circumstances, the court may “go behind” the judgment — what is normally required is some “fraud”, “collusion” or “miscarriage of justice” which impinges on the validity of the judgment, the latter phrase being clearly capable of wide application according to the particular circumstances of the case: Dawodu v American Express Bank [2001] BPIR 983; Re Tam Mei Kam unrep; CACV 87/2012; 8 May 2013; Cheung, Yuen & Lam JJA.”

See also Re Wiemer, ex p Hang Seng Bank Ltd [2013] 2 HKLRD 1214, §12, per To J.

53.In my judgment Ms Leung has failed to show or substantiate any grounds upon which the three costs orders may be impugned. They were costs orders arising from, inter alia, a dispute about further and better particulars of Ms Leung’s statement of claim in the Action. Even if Ms Leung had merits in her substantive claim against the defendants in the Action, they were entitled to have the claim against them properly defined and particularised.  The 1^st, 2^nd, 4^th, 5^th and 6^th defendants had in an affirmation of Mr Leung Tat Kin Anthony made on 29 June 2017 in the Action stated that they did not know a number of details regarding Ms Leung’s allegations, and there is nothing to gainsay that.  They were entitled to require Ms Leung to specify the details of her case and the ambit of her claims even if they were privy to the transactions in question and had in their possession information about those transactions.  Any confidentiality surrounding the information relating to the investors she introduced to the defendants was not a valid excuse against providing particulars of discovery.  These matters have already been pointed out by the courts previously: see eg Decision of Deputy Judge Keith Yeung SC dated 29 March 2018 on an interlocutory appeal in the Action: [2018] HKCFI 685, at §§20-21.

54.Ms Leung also argued that because the documents of which discovery was sought were covered by the confidentiality clause in the agreement, a court order was needed to overcome the confidence attached, and costs should therefore not have been awarded against her.  Ms Leung also relies on clause 3(1) of the agreement to suggest that the expense of obtaining a court order requiring her to make disclosure despite the confidentiality clause should fall on the counterparty to the agreement, ie the defendants or some of them, and not on her.  I do not accept these arguments.  In any event, arguments such as these are to be addressed to the tribunal during the determination of costs, and, being nowhere near “fraud”, “collusion” or “miscarriage of justice”, they afford no valid ground for impugning the costs order in these bankruptcy proceedings.

55.Ms Leung also points to paragraph 10 of the BVI judgment she sought to adduce which referred to a Hong Kong company called Sancus Group Limited.  This does not affect the fact, however, that she had sought to sue “Sancus Group”, not “Sancus Group Limited”, as the 2^nd defendant in the Action.  In any event, so far as the petition debts were concerned, the court actually reduced the amount of the second costs order having regard to the fact that the 2^nd defendant was apparently not a legal entity.

56.As to Ms Leung’s alleged cross‑claim against the petitioner (amongst others) for unpaid introduction and legal fees, that is the subject of the Action, which, as stated above, has been struck out.  Ms Leung’s appeal against that decision has itself been struck out by the Court of Appeal.  The cross‑claim she now asserts in these proceedings is the same one which, as I understand it, essentially alleges that there was an agreement she would be paid certain “introduction fees” for introducing potential investors for a project promoted by the petitioner; and that she did introduce potential investors to the petitioner, but the petitioner has failed to pay her the agreed fees.

57.As regards the Commission Agreement, Mr Recorder Houghton SC had this to say when dismissing Ms Leung’s appeal against the Master’s decision striking out her statement of claim in the Action; see [2018] HKCFI 1918 at paragraph 10:

“ When the evidence is considered the unsustainability of the pleaded claims becomes all the more apparent. The written agreement signed by the 1^st defendant (but nobody else) was signed for and on behalf of a company, not in his personal capacity. The 4^th defendant did not exist when it is alleged to have become a contracting party, and the 5^th defendant, who is the 1^st defendant’s assistant, is only alleged to have been peripherally involved.”

58.As for Ms Leung’s affirmation dated 13 March 2020, she was only given leave to exhibit certain documents by that supplementary affirmation.  The text of the affirmation other than that which identifies what is being exhibited should be disregarded.  The documents exhibited comprise two pages of index of a hearing bundle “B” in the Action (for a hearing on 26 April 2018) together with a copy of the Commission Agreement and several emails that formed pages 92 to 102 of that hearing bundle.  As pointed out by Mr Recorder Houghton SC, the Commission Agreement was signed by the petitioner on behalf of China AgriTrade Investment (BVI) Ltd.

59.As held by Linda Chan J in Re Tang Yau Sing [2020] HKCFI 877 at §§25‑26, the lack of mutuality in respect of Ms Leung’s claim, which allegedly arose under the contract with China AgriTrade Investment (BVI) Ltd, is an additional reason why it affords no defence to the debts due to the petitioner.

60.In these proceedings, Ms Leung has the onus of establishing that she has a cross‑claim against the petitioner that is genuine, serious and of substance, exceeding the amount of the petition debts: see eg Re Shang Lili (unrep, HCB 5329/2014, 25 January 2016), per Ng J at §25.  There must be supporting relevant details to demonstrate that the cross‑claim is based on substantial grounds.  In my view, Ms Leung has simply continued to assert that she has a claim for billions of dollars in unpaid fees, but has not been able to substantiate any valid claim against the petitioner.

61.Turning to the fourth costs order and the Second Statutory Demand, as accepted on behalf of the petitioner, they may not be relied upon because the petition was presented at a time when Ms Leung’s application to set aside that statutory demand was still pending hearing and determination.  In her supplemental submissions on paragraph 7 of the petition dated 13 March 2020, Ms Leung submits that the mistake in the petition was not just an oversight but another instance of perjury on the part of the petitioner.  Among other things, she asks for the petition to be dismissed and for “damage costs at HK$153,000,000 being legal costs compensation” based on ss 2 and 3 of the Misrepresentation Ordinance (Cap 284), ss 31, 32 and 39 of the Crimes Ordinance (Cap 200), and s 64 of the Evidence Ordinance (Cap 8).

62.I do not accept Ms Leung’s submissions.  I accept the petitioner’s and Mr Leung Tat Kin Anthony’s explanation that it was an oversight.  The mistake was a careless one, but there is no sufficient basis to think it was deliberate.  Given that the attempt to set aside the First Statutory Demand had failed, the petitioner was entitled to present the petition herein based on that demand and the first three costs orders.  There was no need for the petitioner deliberately to make a false statement in relation to the Second Statutory Demand and I am not persuaded that he did so.  There is no basis for Ms Leung to claim compensation as alleged in her submissions with reference to the Ordinances mentioned.  It is, however, a matter relevant to the costs of these proceedings and I take it into account in that context.

63.For the above reasons, there is in my judgment no defence to the petition as far as the First Statutory Demand and the three costs orders covered by it are concerned.  There will be a bankruptcy order against Ms Leung.  The petitioner may recover only half of his costs of the petition (and excluding the costs of the affirmations filed on 9 and 14 January 2020) out of the assets of the estate (as an order nisi). The Official Receiver’s costs are to be paid out of the petitioner’s deposit.

The Debtor was not represented and appeared in person

Ms Wallis Chung, instructed by Siao, Wen & Leung, for the Petitioner