Re Tang Wai Yee Sylvia

HCB007351/2003

HCB 7351/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO. 7351 OF 2003

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Coram: Hon Kwan J in Court

Date of Hearing: 23 June 2003

Date of Judgment: 23 June 2003

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J U D G M E N T

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1.I have before me a bankruptcy petition presented against Tang Wai Yee Sylvia by two judgment creditors, He Shimeng and Lin Lina Fang. The petition is founded on two judgments obtained by the two petitioners in High Court Action No. 1261 of 2002, both entered on 21 May 2002. The debtor was the 2nd defendant in that action, the 1st defendant was a company known as Pacific Rise Enterprise Limited ("Pacific Rise").

2.By the judgment entered in favour of Mr He, it was adjudged that the 1st and 2nd defendants do pay him the respective sums of US$120,000 and the US$10,000 or the Hong Kong dollar equivalent at the time of payment with interest and costs. By the judgment entered in favour of Miss Lin, it was adjudged that the 1st and 2nd defendants do pay her the respective sums also of US$120,000 and US$10,000 or the Hong Kong dollar equivalent at the time of payment with interest and costs.

3.The judgments were entered against the defendants as no Notice of intention to defend was given by them in the High Court Action. Pacific Rise and the debtor took out an application to set aside the default judgment. This was heard by a Master who dismissed the application on 20 September 2002. They both appealed against the decision of the Master and the appeal was heard by Deputy Judge Fung on 29 January 2003. The appeal was dismissed as it was held that there is "no credible defence" and "no real prospect of success by the 1st and 2nd defendants".

4.After the default judgment was entered against the debtor on 21 May 2002, the petitioners had served a statutory demand on her personally on 26 June 2002. The debtor took out an application to set aside the statutory demand in HCSD No. 24 of 2002. Her application was heard by Deputy Judge To on 27 March 2003. The application was dismissed and the Judge gave leave to the petitioners to present the bankruptcy petition forthwith. The Judge was of the view that the debtor has utterly failed to discharge the burden there is a genuine triable issue.

5.The debtor then took out a summons for stay of execution of the order made by Deputy Judge To dismissing her application to set aside the statutory demand on the ground that she has filed a Notice of Appeal against the decision of Deputy Judge Fung on 5 March 2003 in CACV No. 53 of 2003. The application for stay of execution was dismissed by Deputy Judge To, who was of the view that the debtor has failed to show a reasonable prospect of success on appeal. The petition herein was presented on 17 April 2003 and served personally on the debtor on 5 May 2003.

6.Three grounds are relied upon by Mr Gary Tam in opposing the petition. Firstly, he submitted that the petition should be adjourned until after the debtor's appeal in CACV No. 53 of 2003 is heard. I have considered the Notice of appeal filed on behalf of the debtor as Deputy Judge To had done on 27 March 2003 and on 11 April 2003. Mr Tam submitted that the debtor has a meritorious ground of appeal, in that the guarantee clause in two agreements dated 8 January 1998 and 14 May 1998 did not constitute a valid personal guarantee. That would appear to be the only substantial ground relied on by the debtor in the appeal. I have no hesitation in agreeing with the judgments of Deputy Judge Fung and Deputy Judge To in this respect. In my view, the debtor has failed to establish she has a ground of appeal with reasonable prospects of success.

7.The next ground raised by Mr Tam on behalf of the debtor is that there is a defect in the bankruptcy petition in that it purported to be signed by Mr He before the notarial officer in Inner Mongolia but Mr He had not been identified by his passport or other identification documents in the notarial certificate. I do not think I need be concerned with this ground of objection, as there can be no possible objection to the validity of the petition presented by the 2nd judgment creditor, Miss Lin.

8.The third ground of objection relied on is that the petitioners have not stated in the petition the debtor's Hong Kong identity card number or passport number pursuant to rule 50(3) of the Bankruptcy Rules. Again, I fail to see any merit in this ground. The petitioning creditors do not have information of the identity card number or the passport number of the debtor. I accept their counsel's word that they cannot reasonably obtain this information.

9.For the above reasons, as no reasonable grounds of opposition have been put forward on behalf of the debtor, I make a bankruptcy petition against her. I order that the petitioners' costs are to be paid out of her assets.

Representation:

Mr Louie Chan, instructed by Messrs Ko & Chow, for the Petitioner

Mr Gary W Tam, of Messrs Gary K W Tam & Co., for the Debtor

Miss Sara Chung, for the Official Receiver