RE LEUNG TZE HANG DAVID

HCB 18073/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

IN BANKRUPTCY PROCEEDINGS

NO. 18073 OF 2002

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J U D G M E N T

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The facility to Pacific System Development Limited ("Pacific System") leading to the consent Judgment

1. New Regent Finance Management Limited ("New Regent") is a licensed money lender. Mr Dick Leung Wing Leung ("Mr Dick Leung") is one of its directors.

2. By a facility letter dated 11 September 1997, New Regent extended a loan of $9 million in favour of Pacific System. The loan was for a period of six months from 11 September 1997 with interest at 30% per annum. It was secured by a legal charge dated 22 December 1997 over Unit 42 on the Ground Floor of Hunghom Commercial Centre ("the Hunghom Unit"). The loan was extended on 20 April 1998 for a further six months from 11 March 1998 with interest at 36% per annum. It was secured in addition by a guarantee dated 20 April 1998 from Mr Leung Tze Hang David ("Mr David Leung"), the alleged debtor in these proceedings. Pacific System defaulted in payment of monthly interest of $270,000 due under this loan. New Regent instituted HCA No. 10575 of 1998 ("Action 10575") against both Pacific System and Mr David Leung on 26 June 1998. Mr Andrew Chan of Messrs Lau & Chan was the Solicitor acting for New Regent in Action 10575.

3. On 12 October 1999, Messrs Lau & Chan wrote to Messrs Denton Hall. They referred to Action 10575 and to a meeting with Mr David Leung on 24 September 1999 when they were informed that Pacific System and Mr David Leung would unconditionally consent to judgment to be entered against them and Messrs Denton Hall would be instructed to act for them in Action 10575. Messrs Lau & Chan asked Messrs Denton Hall for confirmation of their instructions to act. By letter dated 25 October 1999, Messrs Lau & Chan sent to Messrs Dental Hall the Re-Amended Writ in Action 10575 and a draft Consent Summons. The draft Consent Summons craved for two reliefs. It sought judgment in respect of the $9,000,000 loan and possession of the Hunghom Unit. This latter relief was deleted in the draft copy before me.

4. Pursuant to a Consent Summons filed on 7 December 1999, Master B Kwan ordered on 9 December 1999 that judgment be entered against Pacific System and Mr David Leung for $9,000,000 with interest at 36% per annum from 11 May 1998.

Payments by Mr David Leung

5. Mr David Leung made payments to New Regent after the Consent Order. Those payments may be divided into two groups.

(a) The first group consists of the following payments made before the service on 3 April 2002 of the statutory demand by New Regent as further described below. Mr David Leung contends that these payments were in respect of the various interest periods which he identified.

(b) The second group consists of the following payments made after the statutory demand

The re-structuring of AWT Holdings Company Limited ["AWT"] and its settlement with its creditors

6. AWT is an exempted company incorporated in Bermuda with limited liability. Its shares are listed on the Hong Kong Stock Exchange. In around late 1999, AWT was seeking to ride on the so-called dot.com boom and to engage in logistics business. It eventually changed its name to 401.com Ltd. in June 2000.

7. Mr David Leung was the Chairman of AWT between January 1996 to around mid-April 1999. He became thereafter its Managing Director.

8. AWT was heavily in debt in the second half of 1999. By announcements dated 22 October 1999, 1 November 1999 and 5 November 1999, AWT announced its settlement with International Bank of Asia Limited ("IBA"); SHC Finance Company Limited ("SHC") and Nanyang Commercial Bank Limited ("NCB") whereby each of IBA, SHC and NCB agreed to a standstill arrangement in consideration of AWT paying cash, issuing shares and convertible bonds to those creditors.

9. There were heavy tradings of AWT shares prior to the first of these announcements. 830,130,000 shares were traded on 8 October 1999 with closing price at $0.178. 441,040,000; 69,950,000 and 84,450,000 shares were traded on 22 October 1999 and 1 and 5 November 1999 with closing price at $0.149, $0.127 and $0.134 respectively.

10. AWT shares continued to be heavily traded in the first quarter of 2000 :

11. Win Eastern Limited ("Win Eastern") was another creditor of AWT. By an agreement dated 14 April 2000 between AWT, two of AWT's subsidiaries and Win Eastern, Win Easter agreed to accept the allotment of 198,874,639 AWT shares at an issue price of $0.022 per share in settlement of the liabilities of AWT and its subsidiaries amounting to $4,375,242.06 as at 29 February 2000. On or about 16 May 2000, Win Easter was allotted the 198,874,639 shares. On 29 June 2000, Win Eastern divided its holdings into two portions with the smaller portion amounting to 72,720,000 shares.

12. On 7 September 2000, 72,720,000 shares were transferred from the name of Win Eastern into the name of Golden Joy Limited ("Golden Joy"). According to the annual return of Golden Joy as at 20 January 2001, Chan Kam Hoi and Chan Kam Chu were its two directors. They were also the shareholders of Golden Joy until each of them transferred the one Golden Joy share registered in their respective names in favour of nominee companies on 31 March 2000.

Service of the statutory demand and payments thereafter

13. On 16 April 2002, Mr Dick Leung on behalf of New Regent served a statutory demand under section 6A(1)(a) of the Bankruptcy Ordinance (Cap. 6) on Mr David Leung demanding a total of $20,183,917.80 said to be made up of $9,000,000 by way of principal and $11,175,041.10 by way of interest from 11 May 1998 to 3 April 2002. Between 22 April 2002 and 14 November 2002, Mr David Leung paid New Regent the sums totaling $1,090,000 as summarized in paragraph 5(b) above.

14. Mr David Leung sent the payment of $700,000 to Messrs Kwok, Ng & Chan, Solicitors of New Regent, by letter dated 30 April 2002. It is important to note the contents of this letter where Mr David Leung said :

"I refer to your letter dated 27 April 2002 and the subsequent telephone conversation between Mr Dick Leung of New Regent and myself on 27 April 2002 and Monday 29 April 2002. Pursuant to the offer made by New Regent to me, I enclosed herewith a cashier's order in the sum of HK$700,000 ... payable to New Regent for your onward transmission to them and the captioned Statutory Demand is therefore deemed to be void and of no further effect.

As agreed, a monthly payment of HK$30,000 will also be made to them starting from April 2002 for a period of six months. After the completion of the restructuring of the company for which I am now working, I shall be in an improved financial position to propose a better repayment arrangement with New Regent."

Messrs Kwok, Ng & Chan replied to this letter on 2 May 2002. They said this :

"We refer to your letter dated 30 April 2002 enclosing a cashier's order drawn in our client's favour in the sum of HK$700,000.

We are instructed to put on record that our client has never offered or agreed anything through Mr Dick Leung or anybody as alleged. The said sum of HK$700,000.00 paid by you merely represents around 3.5% of your total indebtedness. It is unrealistic for you to expect that the Statutory Demand dated 3 April 2002 can be deemed to be void and of no effect by making payment of such an amount.

Our client has treated your payments of HK$30,000.00 and the said sum of HK$700,000.00 as partial satisfaction of your indebtedness. Nothing herein shall prejudice the validity of the Statutory Demand dated 3 April 2002 in any respect."

15. By letter dated 31 May 2002, Mr David Leung sent to New Regent $30,000 "for settlement of the outstanding principal due to you". He further stated that :

"As agreed, a monthly payment of HK$30,000 will be made to them up to September 2002. Afterwards, I shall be in an improved financial position to propose a better repayment arrangement with you."

This brought another refute from Messrs Kwok, Ng & Chan dated 17 June 2002. Messrs Kwok, Ng & Chan pointed out that "our client had never agreed anything with you in relation to your indebtedness. Your recent payment of HK$30,000.00 was merely a partial satisfaction of your indebtedness."

16. By letter dated 15 July 2002, Mr David Leung sent to New Regent a pay-in slip in respect of payment of $150,000 into New Regent's account. He said this in his 15 July 2002 letter :

"As discussed and agreed between us in a meeting on 10 July 2002, I enclose herewith a copy of pay-in slip dated 15 July 2002 for HK$150,000 paid to your company for part repayment of the outstanding loan due by Pacific System Development Limited and me to your company.

As mentioned in the aforesaid meeting, my proposed repayment plan that a monthly repayment of HK$30,000 will be made to your company from April 2002 to December 2002 in partial settlement of the outstanding principal due to your company. The payment for July 2002 shall be made to you by the end of this month.

In addition, I shall arrange to make further payment to your company in the event of the sale of all or part of the securities issued by 401 Holdings Limited to me.

I trust my great endeavours in making repayment to you will meet with your satisfaction and look forward to your continuing support."

By letter dated 25 July 2002, Messrs Kwok, Ng & Chan pointed out that "... our client did not agree anything with you as alleged or at all. The sum of HK$150,000.00 will be treated as partial satisfaction of your total indebtedness."

Presentation of Petition and the Order of Deputy High Court Judge Muttrie dated 20 January 2004

17. New Regent presented the Bankruptcy Petition in these proceedings on 30 August 2002. Mr David Leung filed two Affidavits dated 28 March 2003 and 31 March 2003 to resist this Petition.

18. On 5 November 2003, New Regent applied under O.38 r.2 for the cross examination of Mr David Leung on his Affidavits. By order dated 20 January 2004, Deputy High Court Muttrie ordered Mr David Leung to attend for cross examination failing which his "affidavits shall not be used as evidence herein".

19. By notice dated 4 February 2004, the hearing of the Petition was fixed on 3 June 2004.

Application to adjourn and the course of the hearing before me

20. At the commencement of the hearing before me on 3 June 2004, Counsel for Mr David Leung applied to adjourn the hearing of the Petition on the ground that Mr David Leung had unstable blood pressure and acute chest discomfort on 2 June 2004 and he was admitted into Hong Kong Adventist Hospital that day under the care of Dr Monica Lee. Dr Paul Lam, a psychiatrist, was also engaged to advise on his mental state. For reasons stated in my ruling on 7 June 2004, I refused the application.

21. Mr David Leung appeared in person on 8 June 2004. Dr Paul Lam was in Court for most if not all the sessions. Bearing in mind the medical evidence before me, I kept Mr David Leung's conditions under close observations. Throughout the hearing, Mr David Leung was courteous to the Bench. He tried his best to assist me in the various clarifications which I sought. He adopted a wholly different attitude towards Mr Ng, solicitor acting for New Regent. Despite repeated reminders from the Bench, Mr David Leung was aggressive and hostile towards Mr Ng. He blamed Mr Ng for his advice leading to what he says is a change of heart on the part of New Regent. Mr David Leung was obviously under pressure in face of this Petition. I do not however detect any sign showing either physical or mental difficulty on his part over and above that normally experienced by a lay litigant in handling proceedings of this nature.

The case of Mr David Leung

22. Mr David Leung rests his case on the basis of three alleged "Settlement Agreements". The 1st Settlement Agreement was allegedly made in around October 1999 between Mr Andrew Chan acting on behalf of New Regent on the one part and Pacific System and Mr David Leung on the other part whereby it was agreed that :

(a) subject to the conditions below, Pacific System and Mr David Leung would consent to Judgment being entered in Action 10575 in the sum of HK$9 million plus interest, and with costs to New Regent on full indemnity basis;

(b) New Regent would not, however, enforce the Judgment to be entered against Pacific System and Mr David Leung;

(c) Mr David Leung would make monthly payment of interest in the sum of $90,000 from the date of Judgment until the Judgment is discharged and

(d) Mr David Leung would procure sale of AWT shares to New Regent by those AWT creditors who would be allotted AWT shares in the intended restructuring of AWT and who would like to sell them as soon as possible.

23. Mr David Leung said that in around February or March 2000, he informed Mr Andrew Chan acting on behalf of New Regent that a certain amount of AWT shares would soon be allotted to Win Eastern and he could arrange part of the AWT shares to be allotted to Win Eastern to be sold to New Regent pursuant to the 1st Settlement Agreement. He said as a result, the 2nd Settlement Agreement was "eventually agreed" between New Regent on the one part and Pacific System and he himself on the other part that :

(a) He would procure the sale of AWT shares from Win Eastern to New Regent at a price to be agreed between the two of them;

(b) the acquisition of the AWT shares by New Regent "could be in full and final settlement of the Judgment together with interest and costs";

(c) New Regent would resell the AWT shares within a reasonable time (which, in the circumstances, meant a few months), but should New Regent eventually resell the AWT shares at a loss, he would indemnity New Regent for the short fall and

(d) he would continue to pay interest for a reasonable period of time after New Regent's purchase of the AWT shares (which, in the circumstances, meant a few months) or up to the sale of the AWT shares by New Regent (whichever was the earlier).

24. Mr David Leung said that in around April 2001, he negotiated with Mr Dick Leung regarding the payment of interest. He said that they agreed that monthly interest payment be reduced from $90,000 per month to $45,000 per month commencing from March 2001. He said he stopped paying after December 2001 as he had paid interest for more than a reasonable period as agreed under the 2nd Settlement Agreement.

25. Mr David Leung said he met Mr Dick Leung on 27 February 2002. He drew this Court's attention to a document bearing that date ("the February Note"). The February Note can be divided into four parts :

(a) The first part is in English which reads: "Cut down to $45,000 from $90,000 for six months only. Maximum eight months then back to $90,000".

(b) The second part is in Chinese which may be translated to read: "Outstanding instalments totalling five instalments. Originally $73,600 per instalment. Now $69,400 per instalment. Must pay up at least three instalments to the Chinese Bank Limited totalling $". The figures 45,000 and 30,000 can be found next to this second part.

(c) The third part is also in Chinese which may be translated to read: "401 shares 1,600,000 guarantee no loss in principal". A tick and the Chinese words meaning "cash" can be found against this part.

(d) The last part consists of a series of figures and various references to Chan and Tsoi.

26. Mr David Leung said that at this 27 February 2002 meeting Mr Dick Leung requested him to resume payment of monthly interest of $90,000 per month which he refused. Mr Dick Leung then explained to him that he had mortgaged his flat with The Chinese Bank Limited in order to raise fund for the purchase of 72,720,000 AWT shares from Great Eastern and Mr Dick Leung was in default under that loan. Mr David Leung said that they then discussed the indemnity which he gave under the 2nd Settlement Agreement. They concluded the 3rd Settlement Agreement whereby it was agreed that in lieu of the undertaking for indemnity given under the 2nd Settlement Agreement, Mr David Leung would pay New Regent $1,600,000 in respect of its shortfall. Mr David Leung said that he told New Regent that he could only afford to pay $30,000 per month but could pay more after sale of the AWT shares allotted to him.

The case of New Regent

27. In relation to the 1st Settlement Agreement, New Regent said that Pacific System and Mr David Leung had unconditionally consented to judgment in Action 10575. Mr Andrew Chan did not enter into any oral settlement agreement as alleged and there was no agreement to pay interest from the date of judgment in Action 10575. New Regent pointed out that the first three payments of $90,000 were made in March 2000.

28. New Regent drew this Court's attention to Mr David Leung's failure to give proper particulars in support of the 2nd alleged Settlement Agreement.

(a) According to Mr Dick Leung, Mr Dominic Kwok asked him in March 2000 to visit Mr David Leung at his office. He said Mr David Leung recognised at this meeting his liability to repay the $9,000,000 loan and interest. He said he pointed out to Mr David Leung that interest had been in arrears for a long time and Mr David Leung indicated he could only pay New Regent one-third of the interest on the loan at $90,000 per month to commence in January 2000.

(b) Mr Dick Leung said he had a meeting with Mr Dominic Kwok and Mr Andrew Chan in the Mandarin at around this time. Mr Dominic Kwok relayed Mr David Leung's message that there was an opportunity for investment of shares in AWT. Mr David Leung would guarantee Mr Dick Leung's investment in those shares. The profit would be shared equally between the two of them and Mr David Leung could then use his share of the profits to repay the $9,000,000 loan. Mr Andrew Chan confirmed what allegedly transpired at this meeting.

(c) Mr Dick Leung said he had a further meeting with Mr Dominic Kwok and Mr David Leung in a Portuguese Restaurant in Shun Tak Centre. He said he agreed to the proposal of Mr David Leung but he indicated the most he could spend was $1,600,000. Mr Dick Leung said he paid a total of $1,160,000 to Mr Andrew Chan's firm on 29 March 2000 for such purpose. Mr Dick Leung denied that the purchase from Win Eastern was at $0.044 per share as alleged by Mr David Leung. He further denied that Golden Joy was the nominee of New Regent.

29. Mr Dick Leung said he was informed by Mr Dominic Kwok in around April 2001 that Mr David Leung could only pay at a reduced rate of $45,000 per month. Mr Dominic Kwok said that such reduced rate should be for six to eight months and thereafter payment would be reverted to $90,000 per month. From about November 2001, there was no payment even at the reduced rate of $45,000. He therefore met Mr David Leung on 27 February 2002 to chase Mr David Leung for payment.

(a) Mr Dick Leung said the first part of the February Note was a reference to what he was told by Mr Dominic Kwok in April 2001. He said Mr David Leung made no attempt to refute his breach of that agreement.

(b) As to the second part of the February Note, he said he explained his financial difficulties to Mr David Leung in order to press him to make payment. He denied telling Mr David Leung that he had mortgaged his flat with The Chinese Bank Limited.

(c) Mr Dick Leung explained that the third part of the February Note was his reminder to Mr David Leung in relation to Mr David Leung's guarantee of his investment in AWT shares. The reference to 1,600,000 was a reference to his previous intimation to David Leung that the maximum amount he could spend was $1,600,000.

The testimony of Mr David Leung before me

30. He said Mr Dominic Kwok was the mutual friend of Mr Dick Leung and Mr Andrew Chan. Mr Dominic Kwok asked him to go to the office of Mr Andrew Chan in October 1999. He thought he was going to meet Mr Dick Leung but was received by Mr Andrew Chan. He spent half an hour to an hour discussing with Mr Andrew Chan. He told Mr Andrew Chan that AWT was being re-organised and there was a good chance of success. He also told Mr Andrew Chan that he would not mind judgment being entered in Action 10575 but it must be on the basis that the judgment would not be enforced. He offered to get one lot of AWT shares for New Regent and further offered to pay $90,000 per month before getting those shares so as to show his sincerity. He would tell Mr Dick Leung once he managed to locate the AWT shares and there would not be any need for him to repay thereafter. Mr Andrew Chan allegedly said that he would talk to Mr Dick Leung and there should not be any problem. Mr David Leung cannot recall whether Mr Andrew Chan confirmed to him New Regent's acceptance. He said they were on the phone all the time. He said he asked Mr Andrew Chan whether he could act for him in Action 10575 but Mr Andrew Chan declined. Messrs Denton Hall acted for him on a gratuitous basis. He cannot recall whether he told Messrs Denton Hall of the existence of the 1st Settlement Agreement. He drew my attention to other Consent Orders which he and Pacific System were parties. He said they acceded to whatever order sought by the other side. He emphasized that New Regent took no step to enforce the judgment in Action 10575 till the lodging of the Petition in these proceedings.

31. He located Win Eastern in February/March 2000. Mr Dick Leung and Mr Dominic Kwok went up to his office. He cannot recall whether Mr Andrew Chan was also there. It was his first meeting with Mr Dick Leung. They were discussing one lot of shares but the size of that lot was not identified. AWT shares were then being traded at around $0.3 per share. He reckoned that a rise of 10 cents would be sufficient to discharge the judgment debt. He promised Mr Dick Leung that if the shares could not be sold within a reasonable time, he would shoulder the principal laid out for such purchase. Mr Dick Leung allegedly said that if that be sorted out the slate would be wiped clean. He was prepared to pay $90,000 per month as Win Eastern had to take time to transfer the AWT shares. He refuted the suggestion that the sums of $90,000 or $45,000 were payments of interest. He strongly denied that it was Mr Dick Leung who decided to make personal investment in AWT shares.

32. He maintained that the figure of 1,600,000 in the February Note represented the drop in price which he agreed to indemnity. He denied that figure was a reference to the anticipated outlay of Mr Dick Leung. He had no knowledge that the actual outlay of Mr Dick Leung was $1,160,000.

33. He said he made similar agreements with other creditors. The debts were discharged in return for shares in AWT. Most of his creditors made money from the AWT shares.

34. At the material time, his company had little staff left. Miss Remus Cheung was her assistant. They had to tackle demands from numerous creditors. Miss Remus Cheung adopted fairly standard wordings in her correspondence with the creditors.

The testimony of Mr Andrew Chan and Mr Dick Leung

35. New Regent called both Mr Andrew Chan and Mr Dick Leung. They adopted as their evidence in chief their Affidavits filed in these proceedings.

36. Mr David Leung declined to cross examine either Mr Andrew Chan or Mr Dick Leung. He said that he had no wish to subject them to the unpleasant treatment which he himself experienced.

My analysis of the Agreements

37. Mr David Leung, AWT and their associated companies were heavily indebted at the final quarter of 1998. Their creditors were pressing with judgments being entered against them in regular frequency. AWT announced its standstill arrangements with IBA, SHC and NCB in late October and early November 1999. When Mr David Leung met Mr Andrew Chan on 24 September 1999, the negotiations for those arrangements must be at their final stage. Central to all the standstill arrangements was the allotment of new AWT shares to discharge part of the outstandings. Given the financial constraints, Mr David Leung would have little incentive to contest Action 10575. Bearing in mind the negotiations with IBA, SHC and NCB, it is also likely that he would have discussed with Mr Andrew Chan the manner of repayment tied to AWT shares. I am not, however, persuaded that there was any binding agreement in terms of the 1st Settlement Agreement as alleged. First, on Mr David Leung own evidence, there was no concluded agreement. He is uncertain whether Mr Andrew Chan did revert to him on New Regent's acceptance of his alleged offer. Secondly, the Consent Summons drafted by Messrs Lau & Chan contained a provision for vacant possession of the Hunghom Unit which was eventually deleted. This indicates that the parties must have negotiated further since September 1999. The 12 October 1999 letter from Messrs Lau & Chan to Messrs Denton Hall referred to a meeting with Mr David Leung on 24 September 1999. There is no evidence of any further meeting or discussion to support an agreement around October as asserted by Mr David Leung. Thirdly, the terms of the agreement alleged are uncertain. Mr David Leung referred to one lot of AWT without specifying the precise number of shares involved. Giving every allowance to the then market fever for .com shares, it is commercially unrealistic for New Regent as creditor to agree not to enforce the judgment in return for an undefined number of AWT shares.

38. In relation to the 2nd alleged Settlement Agreement, it should be noted that both sides are asserting the existence of an oral agreement. Neither agreement is recorded in any written document. This to a considerable extent weakens the criticism of New Regent that Mr David Leung has no written record to support his alleged agreements. The oral agreement alleged by each side entails an element of indemnity on the part of Mr David Leung. The difference is that on Mr David Leung's version, he was going to indemnity New Regent in return for New Regent's waiver of the judgment debt whilst on New Regent's version, the indemnity was in favour of Mr Dick Leung for his personal investment. I am not persuaded that there existed a 2nd Settlement Agreement as alleged. First, I accept New Regent's criticism that the case of Mr David Leung is wholly devoid of the usual particulars as to the date, time, place and persons present in concluding the alleged Settlement Agreement. Secondly, the terms of the 2nd alleged Settlement Agreement are again uncertain. I sought clarification from Mr David Leung as to the number of shares involved. He referred to one hand or one lot. Given the market sentiments, there must have been some negotiations between the parties as to the size of the portfolio for the purpose of discharging the outstanding indebtedness. Such evidence is singularly lacking.

39. In relation to the 3rd alleged Settlement Agreement, I find the February Note of limited assistance in resolving the conflict between the parties. It can be said in favour of New Regent that Mr Dick Leung would not have raised his personal difficulties as reflected in the second part of that Note had there been no personal indemnity in his favour. As against that, I find it strange that he should in the third part of this Note refer to his alleged prior intimation as to the limit of his investment as opposed to his actual exposure. On balance, I entertain serious reservations on the commercial reality of this agreement. New Regent was supposed to have laid out additional sum by way of principal to acquire the portfolio from Win Eastern. In so acquiring, New Regent was supposed to have waived its judgment debt and obtain in return an indemnity confined merely to its fresh exposure. I do not find that commercially realistic.

40. In relation to all three alleged Settlement Agreements, the exchanges between the parties summarized in paragraph 13 to 16 above are really fatal to Mr David Leung's case. I do not accept Mr David Leung's explanation that he simply signed on documents prepared by his assistant adopting standard terms. The letters from Mr David Leung were specific. They purported to refer to conversations and agreements with Mr Dick Leung. Given the statutory demand, he must have known that New Regent was asserting the continued validity of the judgment debt totaling $20,183,917.80. He made no effort whatsoever to refute that liability. Not once did he assert that his liability was confined to the sum of $1,600,000 as crystallized by the 3rd alleged Settlement Agreement.

Conclusion

41. For these reasons, I reject the case of Mr David Leung. I hold that New Regent is entitled to the relief sought in their Petition and I hereby make a Bankruptcy Order against Mr David Leung. I further order costs against Mr David Leung.

Representation:

From 8 June 2004

Mr Ng Man Kin of Messrs Kwok, Ng & Chan, for the Petitioner

Debtor appearing in person

HCB 18073/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

IN BANKRUPTCY PROCEEDINGS

NO. 18073 OF 2002

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REASONS FOR DECISION

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1.  In these bankruptcy proceedings, the petitioner and judgment creditor, New Regent Finance Ltd (“New Regent”) applied under Order 38, rule 2(3) of the Rules of the High Court, for an order requiring the judgment debtor, Mr Leung Tze Hang, David to attend for cross-examination on his 1^st and 2^nd affidavits filed herein on 28 March 2003 and 31 March 2003 respectively failing which the said affidavits shall not be used as evidence herein, and for costs. Having heard argument I made an order in terms of the summons. I now give my reasons for so doing.

2.  The background is as follows. On 11 September 1997, New Regent lent $9,000,000.00 to one Pacific System Development Ltd (“Pacific System”). Mr Leung gave a guarantee of the company’s debt. It was not paid. On 26 June 1998 New Regent instituted proceedings in High Court Action No. 10575 of 1998 against Pacific System as principal debtor and Mr Leung as guarantor. Both consented to judgment, which was entered against both of them on 14 January 2000 for an aggregate sum including capital and interest of $20,175,041.10. New Regent served on Mr Leung a statutory demand dated 3 April 2002 for the judgment debt, after which Mr Leung paid $940,000.00. The Petition was filed on 30 August 2002 and avers an outstanding debt of $19,235,041.10. A further payment of $150,000.00 was made on 4 September 2002.

3.  Mr Leung seeks to have the Petition dismissed. It is his case that following on three oral agreements made with New Regent he is no longer liable for the debt. He says that the first oral agreement was made with a Mr Andrew Chan, a solicitor action for New Regent, that Pacific System and he would consent to judgment; that the judgment would not be enforced; that he would pay interest at $90,000.00 per month until the judgment was discharged; and that he would procure the sale to New Regent of shares in a company, AWT Holdings Company Ltd, (“AWT”) of which he was chairman. AWT was to be restructured and the plan was to procure the sale of the shares by those AWT creditors who were to be allotted AWT shares in the resturcturing, and who intended to sell them as soon as possible. Subject to this agreement he made various payments of interest to New Regent up to December 2001.

4.  Then, according to Mr Leung, in early 2001 he entered into a second agreement with New Regent whereby he was to procure the sale of AWT shares by one Win Eastern Ltd to New Regent, at a price to be agreed between the two of them; the acquisition of such shares would be in full and final settlement of the judgment against him and Pacific Systems, with costs; New Regent would sell the shares within a reasonable time but if it sold at a loss he would indemnify it for the shortfall; and he could continue in the interim to pay interest on the judgment debt. Ultimately New Regent acquired the shares from Win Eastern; and so he was no longer liable for the judgment debt save for the residuary liability to pay interest and the indemnity given to New Regent.

5.  That indemnity, according to Mr Leung was the subject of a third oral agreement by which, in lieu of the indemnity, he was to pay New Regent $1.6 million. He says that $1,090,000.00 has been paid.

6.  Needless to say the solicitor Mr Chan and the director of New Regent, Mr Leung Wing Leung, have filed affirmations denying that there were any such agreements. It is pointed out that at the time of the judgment Mr Leung was represented by solicitors. Reliance is also placed on subsequent correspondence in which Mr leung refers to payment outstanding principal, and the like, and which is relied on as being inconsistent with his evidence of the agreements.

7.  By a letter dated 22 July 2003 the solicitors for New Regent suggested that witnesses for both parties attend court for cross-examination, including Mr Leung himself. His solicitors however refused, saying that the mere fact that cross-examination was required indicated that there was a serious dispute of facts which could not be resolved without a full trial.

8.  It is argued for Mr Leung by Mr Rimsky Yuen, SC that the Bankruptcy Court is not and should not be used as a debt-collecting court. So a petition should be dismissed where there is substantial and bona fide evidence as to whether the alleged debt exists. Once the court is satisfied that there is a substantial and bona fide dispute it should not go into details and seek to resolve the dispute since that should be done by way of an ordinary High Court action. In this case the is a substantial and bona fide dispute appears on the face of the affirmation evidence. The court can decide the petition on that evidence wihtout the need for cross-examination.

9.  The principles governing the court’s discretion under Order 38, rule 2(3) to permit cross-examination on evidence were considered by Fuad JA in Wendy Wenta Seng Yuen v Philip Pak-yiu Yuen [1984] HKLR 431 (CA) at 436:

“As regard affidavits in general, there will be cases where the interests of justice dictate that a deponent should be subject to cross-examination. For example, where the motives of directors in exercising their powers is in issue, as in Re Smith and Fawcett [1942] 1 Ch 304. In other cases, in my judgment, the true rule must be that the court has an unfettered discretion to permit cross-examination on an affidavit but the applicant is not entitled to this right as of course. He has to establish that in all the circumstances of the case there is a good and sufficient reason for the application. He will not find this difficult where the evidence on the affidavits will result in what I might call a final order. He will find it more difficult in interlocutory matters, perhaps, for, as the judge below had in mind, great delay and expense might be entailed. It seems to me that what is essential for the applicant to show is that the proposed cross-examination might be productive of a useful result at the stage that the application is made. If no reason can be suggested for supposing that the cross-examination will then be helpful, the application will be refused in the discretion of the court, indeed, in certain circumstances it might be regarded as oppressive and, as such, an abuse of the process of the court.”

10.  Mr Lawrence Ng, for New Regent, relies in particular on the fact that the hearing of the Petition will result in a final order. He argues that the deponent should be cross-examined if his evidence is for good reasons not acceptable to the other side. He relies on dicta of To DJ in Chow Kam Fai David, Exp. Rambas Marketing Co, LLC, HCB1364/2003, unreported.

11.  It seems to me that the matter is quite simple and does not need close consideration of the authorities cited. In any event where the question is one of discretion, precedents are illustrative of how the discretion has been exercised but often do not give any direct assistance.

12.  By section 6 of the Bankruptcy Ordinance, Cap.6, the grounds of the Petition must be that (inter alia) the debt is for a liquidated sum payable to the petitioning creditior, immediately or at some certain, future time, and is unsecured and the debt is one which the debtor appears either to be unable to pay or to have no reasonable prospect of being able to pay. So the Petitioning creditor has to prove the debt. By sectin 6D, the court shall not make a bankruptcy order unless it is satisfied that the debt is one which having been payable at the date of the petition or later, has been neither paid nor secured nor compounded for.

13.  Here the dispute is whether the debt, the existence of which is not denied, was paid or compounded for, and therefore not payable at the date of the Petition. While the onus is on the creditor to prove the debt, it seems to me that where the debtor agrees that the debt was payable at some time but says that he has paid it the evidential burden must shift to him. Otherwise, any debtor could have a petition dismissed by simply swearing that he had already paid the debt, without further inquiry. So I think the matte goes further than simply that the debtor should be able to get the petition dismissed by simply showing that there is a substantial and bona fide dispute as its existence; in this case, the dispute is as to whether he has paid it and that must be for him to establish.

14.  Even if it were simply a matter of showing that there is substantial and bona fide dispute as to the existence of the debt, that in itself is in question here. The court will have to decide whether the dispute is bona fide or whether the allegations of collateral agreements are, like so many such allegations, yet another fairy-tale told by a debtor attempting to escape liability for a debt the existence of which he cannot deny. In this connection the authors of the Hong Kong Civil Procedure 2004 at paragraph 38/2/5 cite Re Smith and Fawcett, referrred to in the judgment of Fuad JA above, as authority for the proposition that where there is a question as to motive or good faith of the deponent, the court ought not to be asked to act without cross-examination.

15.  Either way, the court’s decision on the Petition cannot, in my view, be reached on affidavit evidence alone. It can only be reached after the court has heard cross-examination on that evidence to decide whether or not it is genuine and bona fide. I was therefore satisfied that there were good and sufficient reasons for the application before me and made the order accordingly.