Re: Chung Kwok Yiu Ringo ("The Bankrupt") and Ex Parte: The Official Receiver

HCB000739A/1996

HCB 739/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

IN BANKRUPTCY PROCEEDINGS NO. 739 OF 1996

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Coram: Hon Kwan J in Court

Date of Hearing: 17 July 2001

Date of Decision: 17 July 2001

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D E C I S I O N

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1.On 8 June 2001, I gave judgment in an appeal brought by the Bankrupt, Mr Chung Kwok Yiu Ringo, against an order of Master Lung made on 26 February 2001, in which the learned Master suspended the discharge of the bankruptcy order by 21/2 years pursuant to Section 30A(3) of the Bankruptcy Ordinance, Cap. 6. I have allowed the appeal by reducing the period of suspension to 2 years.

2.On 26 June 2001, I gave notice to the Bankrupt and the Official Receiver of the court's intention to review the order made on 8 June 2001 under section 98(1) of the Bankruptcy Ordinance, as I have entertained doubts whether the appeal from the Master's Order should not have been heard by the Court of the First Instance but by the Court of Appeal. The Bankrupt was notified by the court and the Official Receiver of today's hearing by letter and by telephone. As he was aware of the hearing today and has not attended or given reasons for his absence, this review has been conducted in his absence.

3.Section 98(2) of Cap. 6 provides as follows:

"Every order of the court or the Registrar shall be subject to appeal to the Court of Appeal."

The wording of this provision seems to be clear.

4.I have considered Order 58 rule 1(1) and rule 2 of the Rules of the High Court, I do not think they have altered the position for these reasons. Order 58 rule 1(1) provides that except as provided by inter alia rule 2, an appeal shall lie to a judge in chambers from any judgment order or decision of a master. Order 58 rule 2 lists out specific decisions of masters from which an appeal shall lie to the Court of Appeal and not a judge in chambers. Among such decisions is an order made on the hearing of a petition for bankruptcy. An order suspending discharge of a bankruptcy order is not among the decisions or orders specified in Order 58 rule 2.

5.Section 99(1) of the Bankruptcy Ordinance provides that the rules and practice of the High Court for the time being for regulating the ordinary civil procedure of the court shall, so far as the same may be applicable and not inconsistent with the provisions of the Bankruptcy Ordinance, be applied to bankruptcy proceedings. As there is clear provision contrary to Order 58 rule 1(1) and rule 2 in Section 98(2) of the Bankruptcy Ordinance, the provisions in the Rules of the High Court are not applicable in this instance. Hence, an appeal from the Master's order in this situation should lie to the Court of Appeal.

6.Under the jurisdiction conferred by Section 98(1) of the Bankruptcy Ordinance, I rescind the order made on 8 June 2001 and restore the order made by the Master on 26 February 2001. I should mention for completeness that the Bankrupt is now out of time in serving a Notice of appeal to the Court of Appeal. If he is minded to pursue his appeal, he should apply to a single judge of the Court of Appeal for an extension of time to appeal. I should add that his Notice of appeal to a judge in chambers was lodged on 1 March 2001 and was within time.

Representation:

Bankrupt : Mr Chung Kwok Yiu Ringo, absent

Ms Phyllis McKenna, of the Officer Receiver's Office