Official Receiver v. Wong Hon Kam

CACV 344/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 344 of 2007

(On Appeal from HCB 21847 of 2002)

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BETWEEN:

Before: Hon Yuen JA in Chambers (open to the public)

Dates of hearing: 5 March and 7 May 2009

Date of judgment: 7 May 2009

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JUDGMENT

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Hon. Yuen JA:

1.On 25 September 2007 Master Levy ordered the discharge of the bankrupt to be “backdated” to 13 July 2007 (i.e. declaring that the discharge be at a date earlier than the determination of the objection summons). 

2.The Official Receiver lodged the present appeal on the ground that the court had no power under s.30A Bankruptcy Ordinance Cap. 6 to backdate a discharge. 

3.Before the appeal was heard, this court (Rogers VP, Le Pichon JA and Stone J) held in Official Receiver, the trustee of the estate of Chan Kwok Keung, a bankrupt v Chan Kwok Keung, a bankrupt CACV 247/2007 and CACV 261/2007 that the court had no power to backdate a discharge.  The judgment was given on 17 October 2008 and the reasons handed down on 28 October 2008.   

4.The effect of that judgment was that Master Levy’s order was given without jurisdiction and this appeal should be allowed. 

5.However the Official Receiver decided to withdraw the appeal to save costs and his representative appeared before me on 5 March 2009 to apply for an order to that effect.  I did not accede to the application at that hearing because the effect of the judgment in Chan Kwok Keung meant that the bankrupt remained a bankrupt between the date of his purported discharge (13 July 2007) and his actual discharge (25 September 2007) and his status during that period may or may not have affected the bankrupt or his dealings with third parties.  Accordingly I adjourned the application to enable the Official Receiver to lodge a report to that effect.

6.The ensuing Report dated 19 March 2009 indicates that there were no matters or dealings during that period which may have been affected by the purported backdating.  Accordingly I would give leave to the Official Receiver to withdraw the appeal with no order as to costs.

Mr Harry Lo of the Official Receiver's Office, Applicant (Appellant)

Wong Hon Kam, the Bankrupt (Respondent) in person, absent