Zhang Sabine Soi Fan v. The Official Receiver
Read the full judgment text of HCB 472/1989 on BabelCite. This HCB judgment was delivered on 31 March 1999.
1. This is a most unusual, if not bizarre, case. It arises out of the bankruptcy of Wan Soi Fan Sabina (溫瑞芬) ("the Bankrupt") who was adjudged bankrupt on 10 April 1991. At the heart of the present proceedings is the question whether one Madam Zhang Sabine (or Sabina) Soi Fan (溫瑞芬) ("Madam Zhang") is in fact the Bankrupt. The Chinese names of Madam Zhang and the Bankrupt are the same. The issue is solely one of identity.
Cited by 7 cases
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HCB000472/1989 HCB472/1989 Headnote Claim to diplomatic immunity - how established - Article 19 of the Basic Law HCB472/89 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE BANKRUPTCY PROCEEDING NO.472 OF 1989 ------------
------------- Coram : The Hon Mrs Justice Le Pichon in Chambers Dates of Hearing : 15 and 25 March 1999 Date of Handing Down of Decision : 31 March 1999 ------------------------ D E C I S I O N ------------------------ 1. This is a most unusual, if not bizarre, case. It arises out of the bankruptcy of Wan Soi Fan Sabina (溫瑞芬) ("the Bankrupt") who was adjudged bankrupt on 10 April 1991. At the heart of the present proceedings is the question whether one Madam Zhang Sabine (or Sabina) Soi Fan (溫瑞芬) ("Madam Zhang") is in fact the Bankrupt. The Chinese names of Madam Zhang and the Bankrupt are the same. The issue is solely one of identity. 2. Madam Zhang is the Defendant in, inter alia, HCA12863/98 ("the 1998 Action") brought by Chan Kam Cheong claiming the sum of $8.466 million. Messrs Sit, Fung, Kwong and Shum are the solicitors acting on behalf of Madam Zhang in that action. Madam Zhang also operates bank accounts including accounts held with Liu Chong Hing Bank Ltd in the name of Zhang Sabine Soi Fan and with the Sin Hua Bank Ltd in the name of Zhang Sabina Soi Fan. It is alleged in the 1998 Action that between 20 and 30 June 1998, Madam Zhang borrowed from Mr Chan a total of $8.466 million. 3. On 29 October 1998, the Official Receiver issued three summonses under section 29 of the Bankruptcy Ordinance for an order for production of documents against Madam Zhang's solicitors and the two banks. The application first came on for hearing on 9 November 1998. Shortly prior to that hearing, Madam Zhang's solicitor filed an affidavit opposing the application on the basis that her client Madam Zhang is not the Bankrupt. Madam Zhang herself also filed an affirmation to the effect, inter alia, that she had no knowledge of the bankruptcy proceedings, that she had never been served with any bankruptcy petition and had never used the name of "Wan Soi Fan Sabina". Madam Zhang further stated that she was born on 22 September 1951 which is different from the date of birth of the Bankrupt being 23 September 1962 and that she (Madam Zhang) was in the Congo (formerly Zaire) throughout the period from 1988 to 1992. The adjourned hearing took place on 23 November 1998 and in view of the conflicting evidence then before the court, I ordered that Madam Zhang attend for cross-examination for the resolution of the question of identity, namely, whether Madam Zhang is the Bankrupt. Madam Zhang was also ordered to produce copies of all travel and identification documents including her HKID card, if any, and the document evidencing her date of birth. Madam Zhang has never produced her HKID card despite the order and the fact that she maintains a residence at Barker Road and obviously spends time in Hong Kong. 4. The Official Receiver's application came on for hearing before Madam Justice Yuen on 22 February 1999. New solicitors appeared for Madam Zhang who informed the court that an application would be made to set aside my order of 23 November 1998 requiring Madam Zhang to attend for cross-examination. Pursuant to the order dated 22 February 1999, Madam Zhang filed an application on 1 March 1999 to set aside, review, rescind or vary the order made on 23 November 1998 and for the first time asserted a claim to diplomatic privilege and immunity. Madam Zhang's application came on for hearing on 15 March 1999 together with the Official Receiver's application. Diplomatic Immunity 5. The claim to diplomatic privilege is based on two grounds : first, that Madam Zhang is married to Dr Vunduawe-te-Pemako, who is the President of the Parliament of the Democratic Republic of Congo; second, that Madam Zhang is herself a Congolese national and the Charge de Missions Economique of the Government of the Democratic Republic of Congo. In evidence is a copy of Madam Zhang's diplomatic passport No.D0000726 issued by the Republic of Zaire, now Congo, in Kinshasa on 2 May 1996. It stated that Madam Zhang was born in "Canton, China". 6. There are also two attestations : the first dated 3 November 1998 was made by the Ambassador Extraordinary and Plenipotentiary of the Democratic Republic of Congo certifying that Madam Zhang, born in China on 22 September 1951, holder of diplomatic passport D°0000726, Congolese nationality,
The second is a certificate issued on 25 February 1999 by the Charge D'Affaires at the Democratic Republic of Congo's Embassy in Beijing certifying that Madam Zhang,
Pursuant to the court's order made on 15 March 1999, Madam Zhang produced a marriage registration certificate issued on 23 March 1996 by the Embassy of the Republic of Zaire in the People's Republic of China at Beijing. In the marriage registration certificate, Dr Vunduawe-te-Pemako is described as "Principal Private Secretary to the President of the Republic". It is unclear whether he held that office at the date of the certificate which was issued in March 1996 or at the date of the marriage which was eight years earlier. In any event, it is to be noted that no evidence has been adduced to the effect that Dr Vunduawe-te-Pemako is "the President of the Parliament of the Democratic Republic of Congo" at the present time. 7. Leading counsel for Madam Zhang referred the court to article 19 of the Basic Law which reads :
He submitted that the question whether Madam Zhang is entitled to diplomatic privilege and immunity relates to "foreign affairs" and therefore governed by national laws rather than the laws of the Hong Kong Special Administration Region. It was also submitted that where a person claims immunity, it is incumbent on the court rather than the claimant to obtain the relevant certificate : the court has no discretion in the matter but is bound to apply to the Chief Executive as provided for in article 19. 8. The fact that a claimant has taken steps in the proceedings does not preclude him or her from asserting a claim to immunity at any stage. Article 19 thus offers considerable scope for filibustering proceedings by would-be claimants and the courts are powerless in this regard. In the present case, it was open to Madam Zhang to have taken the point as early as the first hearing in November 1998. Had she done so, no doubt the question of immunity would have long since been resolved. Instead, it was raised for the first time some four months after the application and after Madam Zhang and her solicitor had each filed two affirmations. 9. Faced with Madam Zhang's claim and the terms of article 19 of the Basic Law, the court had no option but to adjourn Madam Zhang's application pending a response to the court's request for a certificate pursuant to article 19 which was made the following day. Quite why Madam Zhang chose to make this claim so late in the day is a matter for speculation. If indeed the Official Receiver be correct that Madam Zhang is the Bankrupt, any finding of fact on the issue of identity would not assist in the administration of the Bankrupt's estate unless the determination were to be made prior to 1 April 1999, that being the date when under the provisions for automatic discharge in the amendments made to the Bankruptcy Ordinance in 1998, automatic discharge takes effect as regards bankruptcies that occurred more than 54 months prior to 1 April 1999. This deadline cannot be extended since the bankruptcy order was made in 1990. The Official Receiver therefore invited the court to reach a conclusion on the question of identity simply on the evidence before it. That of course is an option that is open to the court. 10. Be that as it may, the practical effect of a claim to diplomatic immunity is this : if Madam Zhang is indeed entitled to diplomatic immunity, the scope of such immunity is governed by the Regulations of the People's Republic of China Concerning Diplomatic Privileges and Immunities ("the Regulations") : see Article 18 and Annex III to the Basic Law. For present purposes, Article 14 of the Regulations is relevant and Madam Zhang would not be compellable as a witness. It would follow that that would constitute a valid reason for her not attending for cross-examination. 11. In this regard, it is to be noted that the order that Madam Zhang attend for cross-examination was made at the instigation of this court and not as a result of any request made by the Official Receiver. It appeared to the court on the evidence then before it on 23 November 1998 that cross-examination was a process that was likely to assist the court in arriving at the truth and was a course that would be in the interest of all concerned. 12. When Madam Zhang's application was adjourned on 15 March, leading counsel for Madam Zhang was informed that as regards the Official Receiver's application, the court was minded to accord Madam Zhang a further opportunity before determining the identity issue. The afternoon of 25 March would be set aside should Madam Zhang wish to avail herself of the opportunity of giving evidence and being cross-examined on a voluntary basis and wholly without prejudice to her claim to immunity. Leading counsel was also informed that should Madam Zhang decide to avail herself of that opportunity, the court would grant her leave to file a supplemental affirmation. On 23 March, Madam Zhang's solicitors wrote to inform the court that Madam Zhang would attend for cross-examination on a wholly voluntary basis and three additional affidavits were filed including one by Madam Zhang. 13. At the commencement of the hearing on 25 March, leading counsel for Madam Zhang informed the court that in response to the application made by the Official Receiver by summons dated 29 October 1998, Madam Zhang without making any admission that she is the Bankrupt was prepared to supply the files in the 1998 Action to the Official Receiver. It was submitted that such disclosure would dispose of the summons as well as the order dated 23 November 1999. But the real issue is one of identity. Unless Madam Zhang is the Bankrupt, the documents would be useless in the hands of the Official Receiver who is seeking to carry out his statutory obligations. The real issue should not be allowed to be side-stepped by this seemingly disingenuous maneouvre; leading counsel's submission was accordingly rejected. Then upon taking further instructions, leading counsel informed the court that Madam Zhang had changed her mind and was not prepared to be cross-examined on a voluntary basis although she was present in court. Is Madam Zhang the Bankrupt? 14. Since Madam Zhang has seen fit to spurn the court's invitation to be cross-examined on a voluntary basis notwithstanding her actual presence in court, the fact that on 23 March, her solicitors had informed the court that Madam Zhang would be attending for cross-examination and had accordingly filed a 4th affirmation as well as two other affirmations directed at the identification issue, that issue will have to be determined without the benefit of cross-examination, but solely on the basis of the evidence adduced. Date of birth 15. Madam Zhang has produced a State Notary Certificate issued by the Beijing City Donzhan District State Notary Office certifying that "溫瑞芬" was born on 22 September 1951 in Beijing City. The copy of the Bankrupt's identity card in the possession of the Official Receiver shows the Bankrupt's date of birth as being 23 September 1962. However, it is evident from the Bankrupt's application for her identity card that there was no verification of her date of birth. In the circumstances, the fact that the Bankrupt and Madam Zhang appear to have different dates of birth is not a significant, let alone decisive, factor. Absence from Hong Kong from 1988 to 1992 16. The petition for bankruptcy was presented on 5 December 1989 and alleged that the Bankrupt had ordinarily resided in Hong Kong for a year immediately prior to the presentation of the petition, i.e. from 5 December 1988. It was also stated that the bankruptcy notice was personally served on the Bankrupt on 11 September 1989. Madam Zhang's case is that she could not conceivably be the Bankrupt because she was not in Hong Kong but remained in the Congo from 1988 to 1992. 17. Madam Zhang places reliance on the attestation dated 3 November 1998 where it is stated that "[f]rom 1988 to 1992, [Madam Zhang] was (sic) remained in Congo (ex Zaire)." That of course does not constitute evidence : it is an unsubstantiated assertion since the facts upon which such assertion is based are not disclosed. Then there is the certificate issued on 25 February 1999 by the Charge D'Affaires of the Democratic Republic of Congo where it is stated that Madam Zhang "has been living in Kinshasa since 1988". Again, this is mere assertion unsubstantiated by any evidence. Moreover, it is to be observed that unlike the attestation, no end date is referred to : on one reading, it appears to be saying that Madam Zhang has been living in Kinshasa from 1988 and continuing up until the date of the certificate (i.e. February 1999) which of course conflicts with the assertion made in the attestation. It is one thing to say that Madam Zhang is based in Kinshasa but quite another if it is meant to imply that she never left Kinshasa during a specific period of time i.e. 1988 to 1992 (or February 1999). 18. In my judgment, the evidence that between 1988 and 1992 Madam Zhang never left Kinshasa is ambiguous, insufficient and wholly unsatisfactory. It follows that I am unable to find that Madam Zhang was not in Hong Kong between 5 December 1988 and 5 December 1989. Sabina Enterprises Limited 19. After the date of the bankruptcy order, the Official Receiver made many attempts to interview the Bankrupt. There is a letter to the Official Receiver from the Bankrupt written in Chinese on 21 May 1990 to postpone one of the scheduled meetings. The notepaper used by the Bankrupt is that of a company known as "Sabina Enterprises Limited 瑞納企業有限公司" with an address at Rua de Praia Grande 27-29 3F/B Macau ("the Macau company"). 20. At the hearing on 25 March when Madam Zhang declined to be cross-examined, resting on her claim to diplomatic immunity, the Official Receiver was given leave to file a further affidavit on the question of identity and Madam Zhang was accorded the opportunity to respond to the new evidence by filing an affirmation by 26 March. An affidavit was duly filed on behalf of the Official Receiver exhibiting company records obtained in Macau relating to the Macau company. This showed that the Macau company (Sabina Enterprises Limited (瑞納企業有限公司)) was established in Macau on 12 August 1988, its address being Rua de Praia Grande 27-29 3F/B Macau. It is to be observed that the address is identical to that shown in the letterhead used by the Bankrupt. 21. According to the official records, the Macau company had an issued capital of $100,000. The two shareholders were Wan Soi Peng holding $95,000 of the capital and "Wan Soi Fan" married with Leong Wai Hon. That the shareholder Wan Soi Fan is the Bankrupt is corroborated by the Bankrupt's application for an identity card : the application form dated 24 November 1987 shows the name of the Bankrupt's spouse to be one Leong Wan Hon. Both shareholders were appointed "managers". On 11 March 1992, the holding of $95,000 was divided into one of $90,000 and one of $5,000. As at that date, the capital of $100,000 was held as follows :
That there is a connection between the Bankrupt and the Macau company is clear beyond peradventure : the Bankrupt was and has since the incorporation of the Macau company been one of its shareholders and managers and since 11 March 1992 its sole manager. 22. Madam Zhang is President of the Sabina Group "瑞納集團". As such, she was interviewed by the Beijing Daily in April 1993. That is undisputed. The thrust of Madam Zhang's 5th affirmation is that she has nothing to do with the Macau company which is not part of the Sabina Group and that the Macau company has to be differentiated from Sabina Enterprises Limited, a company incorporated in Hong Kong in 1995 ("the Hong Kong company") which is part of the Sabina Group. 23. Madam Zhang's business card supplied to the plaintiff in the 1998 Action in 1998 shows that the "Sabina Group (瑞納集團)" included the following companies : Sabina Enterprises Limited (國生瑞納企業有限公司) (i.e. the Hong Kong company); Shui Lap Enterprises (Hong Kong) Ltd. (瑞納企業(香港)有限公司), Kolwezi Mining Industries Corporation Limited and Gemena Enterprise (Hong Kong) Company Limited. According to the annual returns dated 9 February 1998 and 3 November 1997 respectively of the Hong Kong company and of Shui Lap, Zhang Sabina Soi Fan (i.e. Madam Zhang) is a director of each of those companies, her address being at "Est. Cacilhas, 2F Bloco II, Edf, Ching Bic Kok, Macau". It is to be noted that the address of the shareholders of the Macau company i.e. the Bankrupt and Paul Chang a.k.a. Zhang Bauluo as at 1992 was also at "Estrada de Cacilhas". It is difficult to say if the same building is referred to. But what is extremely significant is the register of members of Shui Lap. This reveals that on 11 July 1997 Zhang Bauluo transferred his holding of 940 shares to Madam Zhang and both are shown as sharing a common address i.e. Est. Cacilhas, 2F, Bloco II, Edf, Ching Bic Kok, Macau. So whilst the Macau company and the Hong Kong company are different and separate companies, there is a common link which draws them together. At this juncture, it is necessary to examine more closely the role of Paul Chang a.k.a. Zhang Bauluo in all of this. As noted above, he and the Bankrupt were the only shareholders of the Macau company in 1992. 24. There is evidence that in August 1993 one of the Official Receiver's officers interviewed and dealt with one Paul Chang (張保羅) on the basis that he was the husband of the Bankrupt. There is unchallenged evidence that in early August 1993, Paul Chang met with the Official Receiver's representatives to discuss the terms and conditions for the discharge of the warrant of arrest against the Bankrupt, rescission of the receiving order and annulment of the adjudication order. The agreement apparently reached is reflected in a letter dated 13 August 1993 from the Official Receiver addressed to Paul Chang, Sabina Enterprises Limited, Est. Cacilhas 2F., Bloco II, Edf. Ching Bic Kok, Macau. Chang was then chairman of the board of the Sabina Group (瑞納集團) as appears from his calling card provided to the Official Receiver at the time (i.e. August 1993). This also shows that the Sabina Group (瑞納集團) of which Paul Chang was chairman had, as one of its subsidiaries, "Sabina Enterprises Ltd. (瑞納企業有限公司)" i.e. the Macau company. 25. Madam Zhang did not deny the allegation which was made in paragraph 5(2) of Lee Kwan Wai's affidavit filed on behalf of the Official Receiver on 30 October 1998 to the effect that Paul Chang was the Bankrupt's husband. Although Madam Zhang appeared to have misunderstood the allegations made in paragraph 5(3) of Miss Lee's affidavit relating to the identity of the person to whom the identity card and Portuguese passport of the Bankrupt was shown, Madam Zhang nevertheless "contacted Mr Paul Chang" about them. See paragraph 7 of her affirmation filed on 7 November 1998. It is not disclosed how or why she came to know Paul Chang or what relationship they had but it is evident that Madam Zhang knows Paul Chang and indeed spoke to him in November 1998 after the Official Receiver had taken out the present application. Paul Chang a.k.a. Zhang Bauluo is thus inextricably linked not only to the Bankrupt but also to Madam Zhang. 26. The annual returns already referred to as well as annual returns dated 30 March 1998 and 27 June 1998 for Kolwezi and Gemena respectively are of companies that form part of the Sabina Group of which Madam Zhang is President. Together with the official records of the Macau company, they show that :
These facts raise matters that cry out for an explanation. Yet, Madam Zhang chose to remain silent by raising a claim to diplomatic immunity, no doubt to shield herself from potentially embarrassing questions. 27. Quite apart from these matters, Madam Zhang has not come forward with any explanation as to how, why and when she came to use the surname "Zhang". If as she alleges she is married to Dr Vunduawe-te-Pemako, one would have expected her to be known as Mme Vunduawe-te-Pemako. Alternatively, it would not have been surprising if she had retained her maiden name -Wan Soi Fan Sabine or Sabina. But to use the surname "Zhang" is quite another matter for which no explanation has been proffered. 28. The business cards of Paul Chang a.k.a. Zhang Bauluo and Madam Zhang are very similar in appearance; even the logo "SEL" appearing on each is identical, consisting as it does of the initials of Sabina Enterprises Limited. Both relate to the Sabina Group at different stages of its existence, viz. 1993 and 1998. Despite Madam Zhang's efforts to distance herself from the Macau company and thus the Bankrupt, they are unavailing. Paul Chang a.k.a. Zhang Bauluo provides the necessary link between the Macau company and the Hong Kong company and between the Bankrupt and Madam Zhang. Alleged differences in physical appearance 29. Madam Zhang sought to make a point of differences in physical appearance between herself and the Bankrupt. Suffice to say that judging purely from the photographs, one could not reasonably conclude that Madam Zhang and the Bankrupt cannot be one and the same person. It is therefore not a line of inquiry that can usefully be pursued. The person claiming to be the Bankrupt ("the Claimant") 30. On 26 March, a number of affirmations were filed by or on behalf of Madam Zhang which disclosed a wholly unexpected 'defence' : the Bankrupt had been run to ground. Quite coincidentally it would appear, almost immediately after Madam Zhang refused to be cross-examined, the attempts of her friend Mr Chun Kam Chiu to locate the Bankrupt allegedly bore fruit. Mr Chun is apparently well-connected in the PRC and was able to call upon the Public Security Bureau of Guangdong to assist in locating the Bankrupt. Mr Lee, its section chief, allegedly located the Bankrupt in the afternoon of 25 March at the China Huang Pu Copper Factory in Guangzhou. Conveniently, Mr Chun had a friend Mr Chong Shan Keung who happened to be in Guangzhou at that time and was willing to assist. He was to escort the Claimant back to Hong Kong to clarify matters if she were willing to do so. Instead, the Claimant made a declaration to the following effect :
When contacted by the Official Receiver's office on 29 March, the Claimant was uncooperative and evasive and declined to answer questions on the telephone, insisting that the caller travel to Guangzhou to interview her. 31. Whilst the sudden appearance of the Claimant can only be described as 'dramatic', the timing and circumstances would suggest that there was more at work than serendipity. Be that as it may, it is a total mystery why Madam Zhang did not prevail upon Paul Chang a.k.a. Zhang Bauluo to whom she spoke in November 1998 to give evidence. No one could have been better placed to provide the answer to the question whether Madam Zhang is the Bankrupt. It is reasonable to infer from the fact that he was not asked to give evidence by Madam Zhang that his evidence would not assist her case and that inference leads inexorably to the conclusion that she is the Bankrupt. Finding of fact 32. In my judgment, the evidence that Madam Zhang and the Bankrupt are one and the same person is little short of overwhelming. I have no hesitation in finding that Madam Zhang is the Bankrupt. I therefore make an order in terms of the summons.
Representation: Mr Robert Tang, SC and Mr B.K. Ho, inst'd by M/s Liu, Chan & Lam, for the Applicant Miss Teresa Liu representing the Respondent Messrs Sit, Fung, Kwong & Shum Ms Phyllis McKenna for the Official Receiver |
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