Secretary for Justice v. 華德剛

[English Translation - 英譯本]

CACV 368/2025, [2025] HKCA 1110

On appeal from [2025] HKCFI 1527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 368 OF 2025

(ON APPEAL FROM HCB NO 1174 OF 2023)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

Background

1.The Debtor was a director of Tak Wah (“Tak Wah”) Building Works Ltd. On 5 August 2022, Tak Wah filed a claim with the Small Claims Tribunal against the Commissioner of Inland Revenue (SCTC 22471/2022; the “Small Claims Proceedings”), pointing out that the Commissioner’s decision not to accept Tak Wah’s application for a business registration certificate by reason of its failure to make payments of business registration fees was unreasonable and was contrary to Section 7(3) of the Business Registration Ordinance (Cap. 310), and claiming loss of income in the sum of 75,000 dollars. In those proceedings, the Debtor acted for Tak Wah as its company director.

2.On 11 July 2023, the Debtor was adjudged bankrupt by the Court of First Instance in HCB 1174/2023 before the Court of First Instance of the High Court (the “Bankruptcy Proceedings”).

3.Section 480(1) of the Companies Ordinance (Cap. 622) provides as follows:

“A person who is an undischarged bankrupt must not act as director of, or directly or indirectly take part or be concerned in the management of, a company, except with the leave of the Court by which the person was adjudged bankrupt.”

4.On 12 December 2023, the Small Claims Tribunal dismissed Tak Wah’s claim.

5.Pursuant to Section 480(1) of the Companies Ordinance, given the Debtor was a bankrupt, he could no longer act for Tak Wah as its director to conduct any further proceedings with respect to the Small Claims Proceedings.

6.On 22 April 2024, the Debtor took out a summons in the Bankruptcy Proceedings, pursuant to Section 480(1) of the Companies Ordinance, applying for leave to act for Tak Wah as its director to appeal against the decision in the Small Claims Proceedings.

7.On 13 September 2024, after hearing, Deputy High Court Judge Jonathan Wong (“Judge Wong”) handed down a judgment ([2024] HKCFI 2232; the “13/9/2024 Decision”) refusing the Debtor’s application. The reasons for the decision given by Judge Wong are set out in paragraphs 3.7 to 3.9 of the Decision. In summary, Judge Wong considered that Section 28(1)(a) of the Small Claims Tribunal Ordinance (Cap. 338) provided that an appeal might only be brought on a ground of appeal involving a question of law alone, that the Small Claims Tribunal’s decision was correct, and that Tak Wah’s intended appeal had no prospect of success.

8.Order 59 rule 3(5) of the Rules of the High Court (Cap. 4A) provides that, with respect to an appeal brought to the Court of Appeal, a notice of appeal must be served on all parties to the proceedings in the court below who are directly affected by the appeal. Order 59 rule 4(1)(b) further provides that a notice of appeal, pertaining to a judgment, order or decision given or made in the matter of any bankruptcy, must be served within 28 days from the date of the judgment, order or decision.

9.On 19 November 2024, the Debtor applied to Judge Wong for an extension of time for an appeal against the 13/9/2024 Decision. After hearing, Judge Wong handed down a judgment on 15 April 2025 ([2025] HKCFI 1527; the “15/4/2025 Decision”) dismissing the Debtor’s application. Mainly, Judge Wong was of the view that the Debtor’s delay was substantial and not wholly excusable, and that his intended appeal had no real prospect of success: see paragraphs 2.1 to 2.8 of the decision for the details.

The present appeal

10.On 5 June 2025, the Debtor filed a notice of appeal for the present appeal. It was indicated in the notice of appeal that the appeal was brought against the 15/4/2025 Decision, but the relief sought was to allow the Debtor’s “appearance in all outstanding matters of SCTC 22471/2022 as a director all the way to the conclusion of the case, including any appeal.”

11.The grounds of appeal raised in the notice of appeal were as follows:

“Before being adjudged as a Debtor, there had been an ongoing action, SCTC 22471/2022, in which I represented the company as its director in court. However, as I had to resign as the director due to my bankruptcy, I am unable to represent the company in the outstanding action.

The application to the bankruptcy court for retaining the directorship is solely for the purpose of the appearance in the proceedings of SCTC 22471/22. However [Judge Wong] dismissed my application and handed down the 15/4/25 Decision. An appeal is therefore brought to the CA.”

12.The Debtor failed to serve a notice of appeal on the Petitioner in the Bankruptcy Proceedings (i.e. the Secretary for Justice) in accordance with Order 59 rule 3(5) of the Rules of the High Court.

13.On 10 June 2025, the Registrar of Civil Appeals directed the Debtor to give an explanation to the Court of Appeal not later than 30 June by what reasons his notice of appeal should not be dismissed. The bases on which the Registrar of Civil Appeals made the direction were: (i) Judge Wong had already refused to extend the time for lodging an appeal against the 13/9/2024 Decision; and (ii) the Court of Appeal was not vested with the bankruptcy jurisdiction of the Court of First Instance to extend the time for lodging an appeal.

14.On 16 June 2025, the Debtor filed a summons (the “16/6/2025 Summons”) and an affidavit in the present appeal, applying for an extension with regard to the submission of the sealed order of the 15/4/2025 Decision to the Court of Appeal.

15.On 17 June 2025, the Director of Legal Aid filed a notice in the present appeal, indicating that the Debtor was at the time applying for legal aid. Pursuant to Section 15(4) of the Legal Aid Ordinance (Cap. 91), the proceedings of the present appeal were stayed for 42 days. The Registrar of Civil Appeals therefore, on 19 June 2025, gave a direction (the “19/6/2025 Direction”) that the time for the Debtor to submit an explanation to the Court of Appeal (see paragraph 12 above) be extended to 10 August. Meanwhile, in the direction, the Debtor was reminded that, in the event of his failure to submit an explanation in time, his notice of appeal and the 16/6/2025 Summons would be dealt with by the Court of Appeal without further notice. On 20 June 2025, the court gave notice of the 19/6/2025 Direction to the Debtor by letter.

16.On 30 July 2025, the Director of Legal Aid filed a notice indicating that the Debtor’s application for legal aid had been refused. The Debtor to date has not submitted an explanation to the Court of Appeal in accordance with the 19/6/2025 Direction.

17.On 8 August 2025, the Debtor filed 4 documents in the present appeal, namely: (1) a notice of intended application for leave to appeal; (2) a notice of motion; (3) an affidavit; and (4) a statement of the grounds upon which leave to appeal is sought from the Court of Final Appeal (the “Statement of Grounds of Leave to Appeal”), applying to the Court of Final Appeal for leave to appeal against the 19/6/2025 Direction.

18.In the Statement of Grounds of Leave to Appeal, it was stated that: (i) the Debtor applied for retaining his directorship solely for the purpose of representing Tak Wah to deal with the Small Claims Proceedings all the way to the conclusion of the appeal, but not for operating or managing Tak Wah or holding directorships in any other companies, and he would resign immediately once the Small Claims Proceedings came to a conclusion; (ii) the Debtor disagreed with what was pointed out by Judge Wong that his grounds of appeal with respect to the Small Claims Proceedings failed to show the relevant prospect of success, and pointed out that the issue in the case (i.e., whether a dormant company still had to pay business registration fees) had not yet been tried; and (iii) since the Debtor applied for legal aid and that application was refused, he did not apply for leave to appeal to the Court of Final Appeal until August.

The reasons for this Court’s decision

19.This Court now deals with (1) whether the notice of appeal and the present appeal should be dismissed; (2) the 16/6/2025 Summons; and (3) the notice of motion, together.

(1)  The notice of appeal

20.It can be seen from the relief sought and the grounds of appeal in the notice of appeal that the Debtor’s appeal is in substance directed against Judge Wong’s decision of refusing him to act for Tak Wah as its director to conduct the proceedings in the Small Claims Proceedings, i.e., the 13/9/2024 Decision.

21.It is an undisputed fact that, when the notice of appeal was filed, the time for an appeal against the 13/9/2024 Decision had expired. Since Judge Wong refused to extend the time for an appeal, the Debtor was barred from making an appeal out of time. On this ground alone, the notice of appeal should be struck out.

22.Furthermore, Section 480(1) of the Companies Ordinance provides that an application made under the provision must be made to the Court of First Instance having exercised the bankruptcy jurisdiction. The 13/9/2024 Decision was therefore a decision made by the Court of First Instance exercising its bankruptcy jurisdiction. As shown in Poon Sin Mei Cindy v FWD Life Insurance Company (Bermuda) Limited (unreported) HCMP 1456/2016 (judgment dated 30 September 2016), the Court of Appeal is not vested with the jurisdiction and is unable to extend the time for an appeal against a decision made by the Court of First Instance having exercised the bankruptcy jurisdiction: see paragraphs 16 to 26 and paragraph 29 of the judgment for details. As a result, this Court is not vested with the jurisdiction to extend the time for lodging an appeal against the 13/9/2024 Decision.

23.Besides, by filing the notice of appeal without serving it on the Secretary for Justice, the Debtor was in breach of Order 59 rule 3(5) of the Rules of the High Court.

24.For the above reasons, the notice of appeal should be struck out, and the present appeal should be dismissed as well.

(2)  The 16/6/2025 Summons

25.In the circumstances that the appeal is dismissed, this Court does not have to deal with the 16/6/2025 Summons.

(3)  The notice of motion

26.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that an appeal shall lie to the Court of Final Appeal in the following circumstances:

“[…] at the discretion of the Court of Appeal or the Court, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court, 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 for decision; […]”

27.In neither the notice of motion nor the Statement of Grounds of Leave to Appeal did the Debtor set out any issues of great general or public importance.

28.Furthermore, as a direction given by the Registrar of Civil Appeals instead of a direction given by a justice of appeal of the Court of Appeal, the 19/6/2025 Direction is not among the matters that may be adjudged by way of an appeal to the Court of Final Appeal.

29.Besides, under the circumstances that the Director of Legal Aid informed the court of the application by the Debtor for legal aid, the proceedings of the present appeal were stayed for 42 days according to the statute. The Registrar of Civil Appeals, in view of this, extended the time accordingly for the Debtor to submit an explanation to the Court of Appeal. This was a proper and reasonable approach. There can be no criticism of the 19/6/2025 Direction.

30.As to the Statement of Grounds of Leave to Appeal, none of the representations made therein shows what errors are found in the 19/6/2025 Direction.

31.This Court is likewise not of the view that there are otherwise any reasons for the matter to be submitted to the Court of Final Appeal for decision.

32.For the above reasons, the notice of motion was not in line with the requirements of Section 22(1)(b), and should be dismissed.

(4)  Costs

33.Since the Petitioner did not make any representation in the present appeal with regard to the notice of appeal, the 16/6/2025 Summons and the notice of motion, this Court makes no order as to costs.

Orders

34.This Court makes the following orders:

(1)  The notice of appeal be struck out and the present appeal be dismissed.

(2)  There be no order as to the summons dated 16 June 2025.

(3)  The notice of motion be dismissed.

(4)  There be no order as to costs of the present appeal, the summons dated 16 June 2025 and the notice of motion.

The Department of Justice for the Petitioner.

The Debtor, unrepresented, appearing in person.

Translated by the Court Language Section of the Judiciary and vetted by Mr Richard K L Man, Barrister-at-law.