Re Kwok Yan Sang
Read the full judgment text of HCB 3562/2000 on BabelCite. This HCB judgment was delivered on 23 September 2002.
1. This is a bankruptcy petition taken out by the petitioner, American International Assurance Company, on 18 September 2000 against the debtor, Mr Kwok Yan Sang. On 24 September 2002, the hearing of the petition came before me. But the debtor was absent. He had previously faxed a letter dated 20 September 2002 to the petitioner's solicitors, seeking an adjournment on the ground that he had to attend hospital for medical examination on 22 September 2002. The application was opposed by Ms Mak, so
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HCB003562/2000 HCB3562/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE IN BANKRUPTCY PROCEEDING NO.3562 OF 2000 --------------------
-------------------- Coram: Deputy High Court Judge Poon in Court Date of Hearing: 23 September 2002 Date of Judgment: 23 September 2002 Date of Handing Down Reasons for Judgment: 30 September 2002 ------------------------------------------------------ REASONS FOR JUDGMENT ------------------------------------------------------ Introduction 1.This is a bankruptcy petition taken out by the petitioner, American International Assurance Company, on 18 September 2000 against the debtor, Mr Kwok Yan Sang. On 24 September 2002, the hearing of the petition came before me. But the debtor was absent. He had previously faxed a letter dated 20 September 2002 to the petitioner's solicitors, seeking an adjournment on the ground that he had to attend hospital for medical examination on 22 September 2002. The application was opposed by Ms Mak, solicitors for the petitioner. After hearing Ms Mak, I refused the application for adjournment. There was simply no medical evidence before me to support the application. And there was no explanation why the debtor could not attend court today after his alleged medical examination two days ago. In the event, the hearing proceeded. The petitioner called only one witness, namely, Mr Chung Tsz Chung, a senior account officer, to give evidence. 2.At the end of the hearing, I made a bankruptcy order with costs against the debtor. These are my reasons. The Petitioner's case 3.The petitioner's evidence can be summarized as follows. 4.The petitioner and the debtor entered into a Career Representative Senior Unit Manager's Contract dated 1 September 1997 ("the Contract") which was a contract for services whereby the debtor agreed to procure life insurance business in favour of the plaintiff. Some of the more pertinent clauses of the Contract read :
Mr Chung explained in his oral testimony that in short the financing costs referred to in clause 4 of the Schedule of Expense Allowance represented the deficit between the fixed amount paid to the debtor's down-line agent and the actual commission the agent earned for a particular month. 5.Pursuant to the Contract, the debtor recruited his brother Samuel Kwok Tin Loi as his down-line agent at the time when he joined the petitioner. On 1 December 1997, Samuel Kwok terminated his agency contract with the petitioner as a result of a fraud case. It is the petitioner's case that the debtor had thereby become liable for (1) the signing fees the petitioner paid to Samuel Kwok when he was recruited in the sum of HK$453,000 under clause 4 of the Contract; and (2) the financial costs of HK$105,746.16 under clause 4 of the Schedule of Expense Allowance. 6.The debtor signed a letter of undertaking dated 15 September 1998, acknowledging his liability for the said sum of HK$558,746.16 with interest, and agreed to repay the indebtedness by 96 equal monthly instalments. Subsequently, a total of HK$33,000 was paid by the debtor. As at 10 October 1999, the outstanding balance stood at HK$525,746.16. 7.Previously, the debtor had signed another letter of undertaking dated 28 October 1997 acknowledging to repay a personal loan of HK$51,000 advanced to him by the petitioner. The loan together with interest was to be repaid by 24 monthly equal instalments. As at 31 July 1999, the outstanding balance stood at HK$6,974.46. 8.According to Mr Chung, the debtor had not raised any objection after signing the two letters of undertaking. 9.It is the petitioner's case as explained by Mr Chung in his oral testimony that the debtor owed the petitioner a further sum of HK$206,087.13 as at 31 August 1999, consisting of (1) HK$195,450.78 incurred by him personally as the deficit between the commission he earned and the actual amount the petitioner paid to him in August 1999; and (2) HK$10,636.35 being the financing costs he was liable under clause 4 of the Schedule of Expenses Allowances. 10.The documents evidencing the aforesaid indebtednesses have been produced as evidence before me. The requisite statutory demand dated 12 January 2000 was served on the debtor personally on 6 March 2000. The debtor has not taken any step to set aside the statutory demand. Mr Chung filed an affirmation dated 23 September 2002 confirming that the total amount of HK$749,429.35 is still outstanding. The debtor's grounds of opposition 11.In his affirmation filed in these proceedings, the debtor sought to raise two main grounds of opposition :
12.As noted above, the debtor did not appear. Nor did his witnesses. There is therefore no evidence to support his opposition. Indeed, his first ground of opposition is clearly contradicted by the express provisions of the Contract. It is devoid of any merit. It seems that the defendant seeks to raise the defence of duress or undue influence under the second ground. But the allegations are not supported by evidence and I reject it accordingly. Indeed, the allegation raised by the defendant in his affirmations, even if were to be accepted, falls short of establishing any defence of duress or undue influence at all. He had, by conduct, further confirmed the letter of undertaking dated 15 September 1998 by making partial repayments thereunder. Conclusion 13.For the above reasons, I was satisfied that the debtor has been unable to repay the indebtedness as claimed. A bankruptcy order should be made against him with costs. And I so ordered.
Representation: Appearance : Ms Winnie Mak of Messrs Fairbairn Catley Low & Kong, for the Petitioner Debtor : Kwok Yan Sang, in person, absent Official Receiver : excused from attendance |