Re Lau Kwok Fai, Bernard

HCMP 2224/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2224 OF 2005

(On an intended appeal from Bankruptcy Proceedings No. 11144 Of 2004)

______________

RE: LAU KWOK FAI, BERNARD

EX PARTE: SECRETARY FOR JUSTICE, a Creditor

______________

Before: Hon Tang JA in Chambers

Date of Hearing: 28 October 2005

Date of Decision: 28 October 2005

_______________

D E C I S I O N

_______________ 

1.Unlike ordinary action in High Court, in bankruptcy proceedings time for appeal runs from the date of the bankruptcy order and not from the date of the sealed order.  Moreover, time for appeal is 21 days instead of 28 days.  This has been described by Master Levy in The Prudential Assurance Company Limited v Ho Edward, CACV 166/2003 at para. 20 as a “nasty time limit trap”.

2.After the bankruptcy order was made, the debtor enquired at the Resource Centre for Unrepresented Litigant at the High Court about the appeal procedure and period.  He was asked whether the appeal was in respect of a bankruptcy order and he told them that it was.  He was told that the time to appeal was 21 days from the order.  He took that to mean 21 days from the date of the sealed order and the conversation that he had with the staff there was in Cantonese which was repeated before me and the misunderstanding is understandable.  So that is the reason for the delay.

3.In such circumstances, I am of the view that the delay was inadvertent and excusable.  Mr Leu, counsel appearing for the petitioner, has submitted that an extension of time should nevertheless not be granted because the appeal has no merit.  I have to say that the appeal does not strike me as being particularly strong.  But I think, having regard to the importance of the bankruptcy order to the applicant, it is right that he should have his case properly considered by the Court of Appeal.  As I have said, the delay was inadvertent and excusable and I do not think the fact of such delay should result in the deprivation of his right to have the matter properly considered by the Court of Appeal.

4.This is not such a plainly unarguable case that I should refuse leave, so I would grant the order that the time to appeal extended to 4 p.m. on 28 October 2005.  Costs of the application be paid by the debtor to the petitioner in any event.

Mr Brian Leu, GC of the Department of Justice for the Petitioner (Respondent)

The Debtor (Applicant), in person, present