Re Choi Wing Cheong
Read the full judgment text of HCB 16148/2003 on BabelCite. This HCB judgment was delivered on 22 December 2004.
1. The Bankruptcy Order was made on 19 January 2004 in the absence of the debtor.
Cited by 4 cases
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HCB16148/2003 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE IN BANKRUPTCY PROCEEDINGS NO.16148 OF 2003 ______________________ BETWEEN
______________________ Before : Hon Tang J in Court Date of Hearing : 8 December 2004 Date of Reasons for Decision : 22 December 2004 ________________________________ REASONS FOR DECISION ________________________________ 1.The Bankruptcy Order was made on 19 January 2004 in the absence of the debtor. 2.On 21 February 2004, the debtor applied to set aside the Bankruptcy Order. 3.There have been four adjourned hearings of the application. 4.It was finally heard and dismissed by me on 8 December 2004. I now give my reasons for doing so. 5.The petition was based on a Statutory Demand dated 26 July 2003 which relied on the judgment of Master Bharwaney given against the debtor for HK$1,567,200 together with interest and costs in HCA4813/2003. 6.That judgment was also given in the absence of the debtor. On 24 November 2004, the debtor appealed against that judgment. That was heard on 6 December 2004 and dismissed. I was told for the technical reason that the debtor had been adjudicated bankrupt. 7.In the meantime, various actions had been taken under the judgment with a view to its enforcement. They included : order for the examination of the debtor as well as Charging Orders on shares in private companies owned by the debtor. I shall have more to say about the Charging Orders. 8.As for the examination of the debtor, the judgment creditor decided not to proceed further with it on 7 October 2003 after it was adjourned four times in the following circumstances :
9.I return to the bankruptcy proceedings. The Statutory Demand was dated 26 February 2003. The Petition was issued on 27 August 2003 and served on the debtor personally on 7 October 2003. 10.The Petition was first heard by the bankruptcy judge on 10 November 2003. The debtor was absent. He phoned the court clerk alleging that he has lost his Home Entry Permit in Shenzhen on 9 November 2003 and could not attend the hearing. The hearing was then adjourned to 24 November 2003. 11.On 22 November 2003, the debtor faxed a letter to the court asking for an adjournment for four weeks, on the ground that he needed to attend an identification parade in Shenzhen. 12.On 24 November 2003, the debtor was absent and the hearing was adjourned to 22 December 2003. 13.On 20 December 2003, the debtor faxed a letter to the court asking for an adjournment on the ground that he might be required as a prosecution witness in Shenzhen in connection with his lost of Home Entry Permit. 14.At the hearing on 22 December 2003, the debtor was absent and the hearing was adjourned to 19 January 2004. 15.On 17 January 2004, the debtor filed an affirmation in opposition to the Petition. 16.On 19 January 2004, the petition again came up for hearing before Deputy Judge Poon. The debtor was absent. However, he had called the court in the morning, saying that he had been robbed in Shenzhen and could not come to the court. A Bankruptcy Order against the judgment debtor was made with costs. 17.On 21 February 2004, the judgment debtor took out a Summons to set aside the Bankruptcy Order. This application also has a checkered history. It first came for hearing on 26 February 2004 before Deputy Judge Poon. The debtor appeared in person and told the court that he needed to instruct a lawyer to represent him. The matter was then adjourned to 6 April. There was a direction for the filing of affirmation by 11 March 2004. The learned deputy judge also ordered the judgment debtor to produce documents showing his entry and departure between Hong Kong and Shenzhen for the next hearing, and documentary proof on his lost of travelling documents. 18.No affirmation was filed on behalf of the judgment debtor on 11 March 2004 nor were solicitors instructed. 19.On 2 April 2004, a Notice to Act was filed on behalf of the debtor by Messrs Raymond Chan, Kenneth Yuen & Co. 20.An affirmation of the debtor was filed alleging new ground of opposition, namely that the debt was fully secured by the securities held by the judgment creditor and the Bankruptcy Order should be set aside. 21.The matter came before Deputy Judge Poon on 6 April. Directions were made for filing of Affidavits and for the Official Receiver’s Report and the matter was adjourned to 17 May 2004. 22.On 17 May 2004, the matter came before Chung J and it was adjourned to 19 July 2004 for the parties to file documents and affirmations. 23.On 13 July 2004, the debtor filed a Notice to Act in person. 24.On 19 July 2004, the matter came before Yam J. It was adjourned to 30 August 2004. The judgment debtor was ordered to file Statement of Affairs and Preliminary Examination Questionnaire and attend the office of the Official Receiver for preliminary interview within seven days and that the Official Receiver was ordered to file a further report within 14 days upon the completion of that. Various other directions were also given. 25.On 30 August 2004, at a call-over hearing, Sakhrani J after giving directions, adjourned the matter to a date to be fixed for argument before any judge with three hours reserved. The hearing was fixed to be heard on 8 December 2004. 26.On 8 December 2004, the debtor appeared in person. The plaintiff was represented by counsel. 27.In his careful and clear submission, the debtor relied on essentially four grounds in support of his application :
I will deal with these reasons in turn. Section 6B(1)(b) 28.Paragraph 5 of the petition is relevant :
29.The shares referred to in Schedule One were shares in eight private companies. The petition was verified by the creditor’s affirmation of 27 August 2003. 30.The debtor’s complaint is that the estimate was wrong and/or not genuine. Accordingly, it was defective and for that reason the Bankruptcy Order ought to be annulled. He said, moreover, that paragraph 5 of the Petition has been contradicted by the second affirmation of the creditor which is dated 5 May 2004. The estimated value as stated in the petition was $500,000. But, according to the second affirmation, having regard to the absence of information, the petitioner was not in a position to provide an estimate which was really accurate. Moreover, subsequent information obtained by the Official Receiver showed that the security might have no value at all. For example, the petitioner said in his second affirmation :
31.Mr Vincent Chun, counsel appearing on behalf of the petitioner, referred me to the judgment of Susan Kwan DJ (as she then was) in Re Choi Chi Kwun [2000] 3 HKC 503 at 507 :
32.There, she was dealing with a case where the submission made by the debtor was that had the true value had been stated the creditor would be fully secured. 33.Here I would not regard the best attempt that the petitioner had made in putting an estimate on the value of the security as an abuse of process. Nor a sufficiently serious non-compliance with section 6B as to warrant annulling the Bankruptcy Order. 34.Moreover, on the evidence before me, I am not satisfied that if the true value had been put on the security, the security would have exceeded the debt relied on. Indeed far from it. As appeared from the information available to me, it seems more likely than not that the security have negligible or no value. Debt disputed on substantial grounds 35.This is supported by the debtor’s letter dated 26 August 2004. As I understand it, the debtor relied on two agreements for the sale of purchase of shares, both dated 10 May 2002. They related to the sale and purchase of shares in Lucky Brave Limited and Luck Good Limited. Each of these companies, I understand, owned a residential property in Tai Po. The total purchase price was $28 million and they were 100% financed by the DBS Bank by loans of $18 million and overdraft facilities of $10 million. 36.According to the debtor, the loan the subject of the plaintiff’s judgment was made in connection with these transactions. The defendant said that the sales were at a gross overvalue and that he had been advised by HSBC in October 2002 that the value of the properties were only $18 million. These properties have since been sold by the DBS Bank on a forced sale in March 2004 for $17.5 million. His claim of $12.5 million is based on it. 37.However, as appeared from the sale and purchase agreement produced, the sale took the form of a sale of shares in Lucky Brave and Luck Good. Each of those companies had a paid up share capital of 10,000 shares. There were two purchasers : Well Source (Asia) Limited and the debtor. In such transaction, Well Source (Asia) Limited purchased 9,999 shares and the debtor purchased one share. So even if there was a sale at a overvalue and that there was a viable claim in respect of such sale, the debtor personally would only be entitled to 1/10,000 of such loss. So, if the loss were $12.5 million, his share would only be $125,000, far less than the judgment sum. 38.Moreover, I am not satisfied that the debt is disputed on substantial or indeed bona fide grounds. As seen above, the judgment was obtained on 27 January 2003. There was no attempt to challenge it until 24 November 2004. All I have is the mere say so of the debtor. I am not satisfied on the evidence before me that the debtor has a substantial defence or counterclaim. 39.This is certainly not a case where the debtor has made out a strong prima facie case that the underlying debt is substantially disputed (see : Re Luk Tsun Yim [2000] 1 HKC 774 at 777). Debtor’s explanation for non-appearance 40.I turn to consider whether he has a plausible explanation of the circumstances relating to his non-appearance at the hearing to result in a Bankruptcy Order. 41.This is what the debtor said in his affirmation of 21 February 2004 :
42.However, at the hearing on 8 December he seemed to suggest that on that occasion he had also lost his Re-entry Permit. Maybe I have misunderstood him. 43.Now the debtor has produced two documents purportedly from the 福田派出所 in order to support his allegation that he was unable to attend on 19 January because he was robbed on 19 January. These documents did not say that he had been robbed of his Re-entry Permit. The two documents in Chinese are reproduced below :
44.I am not satisfied that the debtor had been robbed, or that because of the robbery he could not return to Hong Kong. I do not believe that he had lost his Re-entry Permit. He did not mention it in his affirmation of 21 February 2004. Even if he had been robbed, I am not satisfied that he could not have returned to Hong Kong. No doubt as a good citizen he should assist the authorities in their investigation, but I cannot accept that he could not have returned to Hong Kong. 45.In all the circumstances, I am not satisfied that the debtor has a plausible explanation for his non-appearance. Petitioner’s debt was only 2% of his total liabilities 46.Lastly, the fourth reason relied upon by the debtor is that the petitioner’s debt only constituted 2% on his total liabilities. He is trying to come to terms with his other creditors. There is no evidence of that. In any event, in all the circumstances of this case, this is not a reason which could persuade me to annul the order. I have no doubt that the court’s discretionary power to annul a Bankruptcy Order must be exercised with great caution and should not be exercised except in special circumstances. 47.For the above reasons, at the conclusion of the hearing on 8 December, the application to set aside the Bankruptcy Order was dismissed with costs.
Debtor in person, present Mr Vincent Chun, instructed by Messrs W.K. To & Co., for the Creditor The Officer Receiver (Appearance Excused) Appeal dismissed: see CACV2/2005 dated 17 July 2007 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Other judgments that cite this case
Further hearings and rulings under HCB 16148/2003