RE:  YUEN OI YEE LISA (袁靄儀) v EX PARTE:  LAM KIT SEONG MIRANDA

CACV 242/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 242 OF 2008

(ON APPEAL FROM HCB NO. 8954 OF 2007)

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Before: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 24 September 2008

Date of Judgment: 24 September 2008

 

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J U D G M E N T

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Hon Rogers VP:

1.  This is an appeal by Lisa Yuen who has been made bankrupt.  It is an appeal from a decision of Poon J.  The application before the judge below appears to have been an appeal from a decision of the Official Receiver who refused to continue with an action which Miss Yuen has brought against a third party.

2.  The judge has simply refused the application and I have no doubt he did so for very good reasons.  If the Official Receiver is to continue an action on behalf of a bankrupt, there are a number of factors which the Official Receiver has to take into account.  First of all is the strength of the case and, secondly, is the funding of the case, and it is not simply his own funding of the case but it is the difficulty that if the case should not succeed that costs would be payable to the other side.  There are at least three very important considerations which the Official Receiver must bear in mind before taking a decision.

3.  That is when the matter came before the judge really for a direction that the Official Receive should continue.  The judge was placed in an almost impossible position where he could not take those decisions on behalf of the Official Receiver and, therefore, it is not surprising that, in a very concise way, the judge has refused the application.  I have to say it is by no means the first application that came before the judge and, no doubt, he felt that too many applications were being made before him.

4.  It is from that that this appeal is brought.  I am not entirely certain that, given the orders that this court has made about appeals to this court, that this appeal should have been brought.  But, nevertheless, it has been brought and we listened to Miss Yuen and I have tried to explain what has gone on before.

5.  Miss Yuen appears to be concerned that she cannot make headway in discharging herself from bankruptcy.  That would be a pity.  If she was in a position, as she says she is, to pay off the judgment debt and discharge her liabilities in respect of the bankruptcy, it would be in everybody’s interests if her bankruptcy came to an end as soon as possible and I would urge those who are responsible for the conduct of the bankruptcy to see their way to facilitating a discharge if that is, indeed, feasible.  At this stage, I can say no more about it than that.

6.  That said, I am afraid that this appeal has to be dismissed and I trust that I have given sufficient explanation as to what has gone on so far for anybody to appreciate it.

Hon Le Pichon JA:

7.  I agree.

(Discussion re application for leave to apply to Court of Final Appeal)

8.  We also make an order that leave to appeal to the Court of Final Appeal is refused.

The Appellant, in person

The Official Receiver (attendance excused)