Re Cheng Kan Yung

HCB 7482/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO. 7482 OF 2003

____________

RE:  CHENG KAN YUNG (鄭根容), the Debtor

____________

_____________

D E C I S I O N

_____________

1.This is an application by Mr Cheng Kan Yung (“Cheng”) pursuant to section 94(3) of the Bankruptcy Ordinance, Cap 6 (“Ordinance”) to revoke an order dated 18 September 2008 whereby the Joint and Several Trustees of the Bankruptcy (“Trustees”) were released from their trusteeship (“Order”).

2.I should mention that this application is also made purportedly pursuant to section 83 of the Ordinance, but I do not see the relevance of those provisions to this application.  Further, Cheng’s bankruptcy herein has been discharged in accordance with section 30A of the Ordinance on 27 May 2007.

3.It is right to say that there is a history of dispute between Cheng and, inter alia, the Trustees.  There are no less than 5 previous litigations concerning Cheng’s complaints arising from his bankruptcy against a number of parties.  Two of the actions involved one of Trustees as a defendant – DCCJ 4838/2007 and HCA 1164/2011.  Both actions had been struck out.

4.Cheng did not attend the hearing at which the Order was made. However, the Order was made after considering the written objections of his.

5.This application is opposed by both the Trustees and the Official Receiver (“OR”).  I regret to say that I am unable to see any merit in this application.

6.Firstly, I agree with the OR that it is an abuse of process to institute this application 5 years after the Order was made.   Such delay is detrimental to the proper administration of the bankruptcy in question and, on this ground alone, this application should be dismissed.

7.I do not believe that the delay has been properly explained by Cheng.  The document he produced at the hearing suggests that he was hospitalised on 5 occasions between 15 October 2008 and 3 February 2009. Some of the hospitalisations were of very short duration.  In respect of Cheng’s submission that his ignorance of the law explains the delay, I agree with Mr Lam, who appeared for the OR, that such explanation holds no water in light of the fact that Cheng had instituted 4 actions subsequent to the making of the Order – DCCJ 2127/2009, DCCJ 551/2010, HCA 1164/2011 and HCMP 2274/2012.  Those actions show that Cheng does not shy from making legal challenges to advance his complaints.

8.Secondly, I agree with both the Trustees and the OR that, contrary to the requirement of section 94(3), there is no proof that the Order was obtained by fraud or by suppression or concealment of any material fact.

9.I have considered the submissions made by Cheng as well as a document which purported to be an affirmation of his and was filed on 26 November 2013 (“Affirmation”).  I do not believe that a case has been made out to meet the requirement of section 94(3).  Fraud or suppression or concealment of material fact involves serious and intentional wrongdoing(s).  No such wrongdoing has been demonstrated.  As an illustration, there is a complaint by Cheng about a two-month delay to the release of his pension.  It is alleged that a Social Welfare Department report was provided by the OR’s Office to the Trustees on 17 September 2003.  However, the Trustees had falsely maintained that the report was only received in November 2013 (see pg 14 of the Affirmation).  I do not believe that the inconsistence in question gives rise to a case of fraud or suppression or concealment of material fact. Such inconsistence can be attributable to, eg, mismanagement. 

10.Thirdly, I also agree with both the Trustees and the OR that much, if not all, of Cheng’s complaints had been ventilated in previous proceedings.  It can be seen that the complaints in paras 1 to 11 of Cheng’s affirmation filed on 27 November 2013 under the heading “skeleton agreement” had been dealt with in HCA 1189/2007 – see the decision of Master Yuen dated 4 August 2008.  Paras 12 to 22 of the same were dealt with in DCCJ 4838/2007 – see the decisions of HHJ HC Wong dated 7 January 2008 and 29 April 2009.  In the premises, I hold that this application is an abuse of process in that the Trustees are being vexed by the unreasonable actions of Cheng and that the court’s resources are being misused by him – see Ko Hon Yue v Chiu Pik Yuk (2012) 15 HKCFAR 72 at 113–115.

11.For completeness, it appears to me that this application may have been launched to seek to get round a Restricted Proceedings Order made by the court in HCA 1164/2011 on 23 December 2011. However, it is unnecessary to deal with that issue.

12.In the premises, this application is dismissed with costs against Cheng in favour of both the Trustees and the OR.  Such costs are to be taxed if not agreed.

13.Last but not least, I am grateful to both Mr Lam and Ms Kwok, who appeared for the Trustees, for their assistance.

(Anthony Chan) Judge of the Court of First Instance High Court

The debtor appeared in person

Ms Ariel Kwok, of Gallant Y T Ho & Co, for the Trustees-in-Bankruptcy

Mr Maurice Lam, for the Official Receiver