Re Ho Suk Bing, Rita

CACV 205/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 205 OF 2009

(ON APPEAL FROM HCB NO. 6312 OF 2009)

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

Date of Hearing: 7 July 2010

Date of Handing Down of Judgment: 16 July 2010

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the Court):

1.This is an appeal brought against a bankruptcy order made by Master J Wong on 22 July 2010. The appellant Madam Ho Suk Bing Rita (“Madam Ho”), acted throughout in person, in the bankruptcy proceedings as well as the proceedings in the District Court (“DCCJ 2969/2005”) brought by her and her husband Law Man Tim (“Law”) against Hong Kong Property Services (Agency) Ltd (“HKP”), Ho Kin Shing Sam (“Ho”) and Pong Ip Keung (“the Purchaser”). All the documents filed by Madam Ho in court are in English.

2.Madam Ho and Law were the joint owners of a flat at The Regalia, 33 King’s Park Rise, Kowloon with a car parking space. Ho was an estate agent working for HKP. Through Ho and HKP, a provisional sale and purchase agreement was signed by the Purchaser and by Madam Ho and Law as the vendors on 1 October 2004. At that time, only the flat was stated in the agreement as the subject of the sale and purchase. On 2 October 2004, Ho added the car parking space in the agreement as part of the property to be sold. Madam Ho alleged this was done without the knowledge or consent of the vendors and with the intent to defraud them, so they brought DCCJ 2969/2005 claiming a declaration that the agreement as amended was unenforceable, an order that the Purchaser should vacate the registration of the amended agreement in the Land Registry, and damages against all three defendants.

3.After a five-day trial in June 2006, Deputy District Judge S T Poon (as he then was) dismissed the claim of the vendors on 23 August 2006. He held that the car parking space was added to the agreement on 2 October 2004 with the authority of the vendors and they were in breach of agreement. He gave judgment in favour of the Purchaser on the counterclaim for return of the deposit of $300,000 and ordered the vendors to pay the costs of the three defendants.

4.The vendors applied to the Deputy District Judge for leave to appeal his decision. This was refused on 4 October 2006. They then applied to a single judge of the Court of Appeal (Cheung JA) for leave to appeal, and as this was unsuccessful, they renewed their application to the Court of Appeal in December 2006. On 22 January 2007, the Court of Appeal (Tang VP and Yuen JA) refused leave to appeal in HCMP 2123/2006.

5.HKP and Ho proceeded with the taxation of their costs in their favour in DCCJ 2969/2005. An allocatur was issued on 12 June 2007 certifying that the taxed costs amounted to $486,228.

6.On 27 December 2007, the solicitors acting for HKP and Ho issued a statutory demand against Madam Ho demanding payment of $551,186.86, made up of the taxed costs and interest calculated up to 17 December 2007. The statutory demand was served on her personally on 7 April 2008. She did not apply to set aside the statutory demand.

7.On 5 May 2009, HKP and Ho presented a bankruptcy petition against Madam Ho, founded on the judgment debt in the statutory demand. The petition was verified by a joint affirmation made by a director of HKP and by Ho. The petition and the verifying affirmation were served on Madam Ho personally on 22 May 2009.

8.The petition first came before Master Ko on 8 July 2009. Madam Ho appeared in person. The petition was adjourned for two weeks for the petitioners to amend the petition to recite that a director of HKP was duly authorised under seal of the company to present the petition on its behalf.

9.The adjourned hearing on 22 July 2009 was before Master J Wong. Madam Ho did not appear but was represented by Law. The Master granted the application of the petitioners to amend the petition. It did not appear from the record kept by the Master there was any indication that the petition was opposed. No affidavit in opposition was filed by Madam Ho in the bankruptcy proceedings. The Master made a bankruptcy order on the petition.

10.Madam Ho filed a notice of appeal on 15 September 2009 against the bankruptcy order. She contended that the bankruptcy order should be set aside because the judgment in DCCJ 2969/2005 was wrong (notwithstanding she was refused leave to appeal by the Court of Appeal) and she should not be liable to pay the taxed costs of HKP and Ho. In her notice of appeal, she set out 15 grounds for her contention that the judgment was in error, alleging that the petitioning creditors and their witnesses gave false testimony and submitted false documents in DCCJ 2969/2005. In short, she disputed liability to pay the petitioning debt.

11.On 3 May 2010, she issued a summons in the appeal proceedings seeking two orders. Firstly, she asked for leave to adduce 6 documents as stated in the summons. Secondly, she sought an order against a bank requiring it to disclose the account balance of one Kwok Ka Yau (“Madam Kwok”) as at 1 October 2004. The summons was supported by her affirmation of the same date, in which she exhibited 17 documents, not just the 6 documents she sought leave to produce.

12.On 23 June 2010, she lodged the appeal bundles with her skeleton submissions of 10 pages. Save for the bankruptcy order, the appeal bundles did not include any of the documents filed by the petitioners in the bankruptcy proceedings. Instead, they contained the documents filed by the parties in DCCJ 2969/2005, being the pleadings, affirmations, witness statements, documentary exhibits, and the judgments of the Deputy District Judge and of the Court of Appeal in HCMP 2123/2006. To her skeleton submissions, she annexed 7 additional documents. She did not seek leave to produce these additional documents as evidence on appeal.

13.An unrepresented litigant must abide by the rules and procedures of the court like all other litigants.

14.Under rule 68 of the Bankruptcy Rules, where a debtor intends to show cause against a petition, he shall file a notice with the Official Receiver specifying the grounds on which he intends to show cause, and shall post to the petitioning creditor or to his solicitor a copy of the notice, in each case 3 days before the day on which the petition is to be heard.

15.No notice of intention to show cause against the petition was served by Madam Ho. And, as mentioned earlier, she did not file any affirmation in opposition in the bankruptcy proceedings either.

16.Rule 69 of the Bankruptcy Rules provides that if the debtor does not appear at the hearing, the court may on hearing the petitioning creditor and the Official Receiver make a bankruptcy order on such proof of the statements in the petition, which was what the Master did on 22 July 2009.

17.No valid explanation was furnished to the Court of Appeal why Madam Ho did not indicate her opposition to the petition or file evidence in opposition prior to the adjourned hearing on 22 July. She was properly served with all the papers in the bankruptcy proceedings two months earlier. She merely claimed she did not know the procedure and did not realise she could file evidence in opposition to the bankruptcy petition, notwithstanding she had been acting in person in various proceedings since June 2005.

18.If the debtor has a valid and substantial dispute in respect of the petitioning debt, it is incumbent on him to raise the dispute in the Court of First Instance, where the petition is heard. The Master will then adjourn the petition to a Judge and, depending on the nature of the dispute, the Judge may give directions for evidence to be filed on both sides before making a determination whether there is a bona fide dispute on substantial grounds such that no bankruptcy order should be made on the petition. And if the debtor is dissatisfied with the decision of the Judge, he may then appeal to the Court of Appeal.

19.Here, no dispute of the petitioning debt was raised in the Court of First Instance. Madam Ho chose to do this on appeal and file her evidence only in the Court of Appeal. The petitioning creditors have no opportunity of answering her evidence on affirmation if they so wish.

20.There is no good reason why she should be allowed to do so. That is sufficient to dispose of her appeal.

21.Even if the evidence she proposed to adduce were to be considered, there is no sufficient basis for this court to conclude that the judgment in DCCJ 2969/2005 was obtained by fraud, as contended by her, leaving aside the question whether it would be fair to the petitioning creditors to form a view on this without giving them opportunity to respond with evidence.

22.Madam Ho had exhausted her avenues of appealing the judgment in DCCJ 2969/2005.

23.After a five-day trial, the Deputy District Judge had decided to accept the evidence of the petitioning creditors, their witnesses and the Purchaser as truthful and declined to accept the evidence of Madam Ho and Law as unreliable. What Madam Ho now seeks to do, in her affirmation and submissions lodged in this appeal, is to cast doubt on the judge’s ruling by pointing to a number of matters which had since occurred to her and had not been canvassed at the trial. Under the principles in Ladd v. Marshall [1954] 1 WLR 1489, this is not permissible, quite apart from the relevance and merits of these new matters. We refuse leave to adduce evidence on this appeal. Her application for an order that a bank is to disclose the account balance of Madam Kwok is equally misconceived. The bank and Madam Kwok were not parties to the proceedings in DCCJ 2969/2005. As for the complaints made by Madam Ho to the Estate Agents Authority against Ho, one of which was found in April 2010 to be established, we fail to see how this should affect the validity of the judgment in the District Court.

24.We dismiss the appeal for the above reasons. We order Madam Ho to pay the costs of the petitioning creditors in this appeal, to be taxed if not agreed. 

The Debtor, Ho Suk Bing Rita, appearing in person

Mr. Desmond Leung, instructed by Messrs. Iu, Lai & Li, for the Petitioners

The Official Receiver, attendance excused