Yeung Man v. New Winning Finance Company Ltd, (in Liquidation), A Creditor

CACV 239/2022, [2024] HKCA 697

On Appeal From [2022] HKCFI 1472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 239 OF 2022

(ON APPEAL FROM HCB NO 5026 OF 2021)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

1.On 18 May 2022, Anthony Chan J made a bankruptcy order (“the Order”) against the Debtor upon the petition of the Petitioning Creditor.

2.On 14 May 2024, this Court gave its judgment (“the CA Judgment”) dismissing the Debtor’s appeal against the Order with costs to the Petitioning Creditor.

3.The basic facts of this case and the Court’s reasons for dismissing the Debtor’s appeal are set out in the CA Judgment and will not be repeated here.

4.By Notice of Motion dated 11 June 2024, the Debtor applies for leave to appeal the CA Judgment to the Court of Final Appeal. 

5.Pursuant to paragraph 3 of Practice Direction 2.1, we determine the present application for leave to appeal on paper without an oral hearing.

6.Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

7.In the Notice of Motion, the Debtor contends that leave to appeal should be granted because the intended appeal involves questions of great general or public importance.  The Notice of Motion sets out various grounds on which it is argued that the Court of Appeal erred in the CA Judgment.  In particular, it is argued that:

(1)  The Court of Appeal erred in applying the relevant principles (namely, the Judge should not have conducted a “mini-trial” on affidavit evidence), and in its approach to the evidence (§2).

(2)  The Court of Appeal erred in adopting the approach of not interfering with the Court of First Instance’s decision subsequent to a mini-trial as the Court of First Instance failed to take into account the contents of the Notice and the Proof of Payment (§3).

(3)  The Court of Appeal failed to realise the serious conflicts and triable issues as to the documentary evidence (§4).

8.At §5 of the Notice of Motion, the Debtor poses the following question –

“In other words, where bona fide dispute had been raised and the trial judge once opined that further evidence would shed considerable light on the veracity of the defence, is the Court allowed to just ‘carefully scrutinize’ the affirmation evidence and make the bankruptcy order?”

9.It is apparent from the Debtor/Appellant’s Skeleton Submissions dated 24 June 2024 that the Debtor is seeking, impermissibly, to re-argue the appeal afresh in the present application for leave to appeal.  The matters raised under §§2, 3 and 4 of the Notice of Motion are essentially repetitions of the Debtor’s unsuccessful arguments before the Court of Appeal on Grounds 1, 3 and 6 of the Supplementary Notice of Appeal dated 4 October 2023.  We do not propose to repeat our views on those grounds, which have been set out in the CA Judgment, save to mention that we do not consider any of those grounds to have merits.  In any event, the arguments raised under §§2, 3 and 4 of the Notice of Motion are tied to the particular facts of the present case, and do not give rise to any question of great general or public importance.

10.The question posed at §5 of the Notice of Motion is premised on the assumption that the Debtor had successfully raised a bona fide dispute of the debt on substantial grounds.  The Judge came to the view that the Debtor had failed to do so, and we see no ground to interfere with the Judge’s view.  Also, the question as framed is not a question of any great general or public importance.

11.For the above reasons, the application for leave to appeal is refused and the Notice of Motion is dismissed, with costs to the Petitioning Creditor, to be summarily assessed.  We do not consider that there is any sufficient basis to order the Debtor to pay the Petitioning Creditor’s costs on an indemnity basis.  The Debtor shall have leave to file and serve a statement of objections (limited to 2 pages) to the Petitioning Creditor’s Statement of Costs for Summary Assessment dated 9 July 2024 within 14 days from the date of this Judgment.  Subject to such further directions as may be given, the Court will summarily assess the Petitioning Creditor’s costs without further notice to the parties. 

Mr Foster Yim and Ms Erica Xi, instructed by Edwin Yun & Co, for the Debtor (Appellant)

Ms Connie Lee, instructed by Michael Li & Co, for the Petitioning Creditor (Respondent)