Re Chin Kam Chiu

CACV 167/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 167 OF 2008

(ON APPEAL FROM HCB NO. 1043 OF 2006)

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Before: Hon Tang VP, Cheung JA and Yuen JA in Court

Date of Hearing: 25 September 2009

Date of Judgment: 9 October 2009

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J U D G M E N T

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Hon Tang VP (giving the judgment of the Court):

1.On 19 April 2006, Mr Chin Kam Chiu (“Mr Chin”) was adjudicated bankrupt in his absence.

2.He was then serving a term of imprisonment at Pik Uk Prison.

3.The petition, however, was served on Mr Chin by substituted service.  Substituted service was necessary because whilst in prison, Mr Chin had twice refused personal service of the petition.  Indeed, earlier, a statutory demand was served on him by substituted service.  Mr Chin had also twice refused personal service. 

4.On 12 June 2007, Messrs Kwan & Chow, solicitors, filed a notice to act for Mr Chin in the bankruptcy proceedings.  On 20 September 2007, Mr Chin applied to annul the bankruptcy order.  The application was heard and dismissed by Poon J on 8 April 2008.  His reasons for doing so were given on 18 April 2008. 

5.On 19 May 2008, Mr Chin applied for an extension of time to appeal against Poon J’s decision.  That was dismissed by Poon J on 27 May 2008 because the proposed appeal has no merit.  This is the appeal of Mr Chin against the order of Poon J dated 27 May 2008.

6.Mr Chin, now acting in person, has made two new allegations.  First, he alleged that he was advised by a welfare officer that a body order would be obtained by the petitioner to secure his attendance at the hearing of the bankruptcy petition.  Secondly, that at an earlier hearing which Mr Chin had attended, the petitioners’ solicitors had promised him that a body order would be obtained for his attendance at the hearing of the bankruptcy petition.  Both made in support of his allegation that otherwise he would have applied for a body order to attend the bankruptcy hearing. 

7.But these are new points which had not been raised before Poon J.  Had they been raised before Poon J they would have been investigated.  That being the case we cannot allow the new points to be taken.

8.In any event the petitioner had indeed tried to obtain a body order to secure Mr Chin’s attendance on 19 April 2006.  That was refused by Master Ho on the ground that it was up to Mr Chin to decide whether or not to attend.  However, Master Ho directed the petitioner’s solicitors (Messrs Deacons) to write to inform Mr Chin that he should apply to the court for a body order if he wished to attend.  By letter dated 10 April 2006 addressed to Mr Chin at Pik Uk Prison, Mr Chin was told that he should apply to the court for a body order as soon as possible if he wished to attend the hearing on 19 April 2006.  That letter was returned to Messrs Deacons by the Correctional Services Department accompanied by a letter stating that Mr Chin had refused to receive it.  Mr Chin has told us that at the time he was receiving a lot of letters from his “fans” and that is why he refused to accept delivery of the letter.  However, it is clear from the evidence produced that the envelope in which the letter of 10 April 2006 was sent bore the name of the solicitors in English and in Chinese “的近律師行”, so Mr Chin should have realized that it was not a letter from his “fans”.

9.For the above reasons and for those stated by Poon J in his reasons dated 18 April 2008, we have no doubt that Mr Chin’s proposed appeal has no reasonable prospect of success.  We therefore dismiss his appeal with costs.

10.The respondent has applied for costs to be summarily assessed.  Their Statement of Costs for Summary Assessment puts their costs at $239,000.  By letter which was received on 2 October 2009, Mr Chin submitted that no more than $90,000 should be awarded.  Mr Chin had earlier paid $150,000 into court as security for costs.  $90,000 is obviously too low.  Having regard to the straightforward nature of this appeal we make a lump sum assessment cost order in the sum of $160,000.

The Debtor, in person, present

Mr Russell Coleman, SC, instructed by Messrs Deacons, for the Petitioner