RE CHOI WING CHEONG
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HCB16148/2003
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
IN BANKRUPTCY PROCEEDINGS NO.16148 OF 2003
______________________
BETWEEN
| Re: CHOI WING CHEONG (蔡榮章) | (“the Debtor”) | |
| and | ||
| Ex-Parte: LEE YUE CHUEN (李雨川) | (“the Creditor”) |
______________________
Before : Hon Tang J in Court
Date of Hearing : 8 December 2004
Date of Reasons for Decision : 22 December 2004
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REASONS FOR DECISION
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1. The Bankruptcy Order was made on 19 January 2004 in the absence of the debtor.
2. On 21 February 2004, the debtor applied to set aside the Bankruptcy Order.
3. There have been four adjourned hearings of the application.
4. It was finally heard and dismissed by me on 8 December 2004. I now give my reasons for doing so.
5. The petition was based on a Statutory Demand dated 26 July 2003 which relied on the judgment of Master Bharwaney given against the debtor for HK$1,567,200 together with interest and costs in HCA4813/2003.
6. That judgment was also given in the absence of the debtor. On 24 November 2004, the debtor appealed against that judgment. That was heard on 6 December 2004 and dismissed. I was told for the technical reason that the debtor had been adjudicated bankrupt.
7. In the meantime, various actions had been taken under the judgment with a view to its enforcement. They included : order for the examination of the debtor as well as Charging Orders on shares in private companies owned by the debtor. I shall have more to say about the Charging Orders.
8. As for the examination of the debtor, the judgment creditor decided not to proceed further with it on 7 October 2003 after it was adjourned four times in the following circumstances :
(1)
27 March 2003
Judgment debtor was absent but his solicitors, Messrs Christine Koo & Ip, submitted a fax message from the debtor alleging that he had lost his Home Entry Permit in the Mainland on 26 March 2003 and therefore could not attend the hearing or provide documents as required by the Examination Order. The hearing was then adjourned to 27 May 2003.
(2)
27 May 2003
The debtor attended the hearing with his solicitors. The solicitors produced medical certificates and asked for an adjournment on the ground that the debtor was not physically fit for examination. Master J. Wong refused the application. However, the examination was adjourned because the debtor had failed to produce documents required by the Examination Order.
(3)
11 July 2003
Second adjourned oral examination hearing. The hearing was again adjourned because the debtor had failed to produce documents as required.
(4)
7 October 2003
Third adjourned oral examination hearing. The debtor had still failed to produce documents for examination.
9. I return to the bankruptcy proceedings. The Statutory Demand was dated 26 February 2003. The Petition was issued on 27 August 2003 and served on the debtor personally on 7 October 2003.
10. The Petition was first heard by the bankruptcy judge on 10 November 2003. The debtor was absent. He phoned the court clerk alleging that he has lost his Home Entry Permit in Shenzhen on 9 November 2003 and could not attend the hearing. The hearing was then adjourned to 24 November 2003.
11. On 22 November 2003, the debtor faxed a letter to the court asking for an adjournment for four weeks, on the ground that he needed to attend an identification parade in Shenzhen.
12. On 24 November 2003, the debtor was absent and the hearing was adjourned to 22 December 2003.
13. On 20 December 2003, the debtor faxed a letter to the court asking for an adjournment on the ground that he might be required as a prosecution witness in Shenzhen in connection with his lost of Home Entry Permit.
14. At the hearing on 22 December 2003, the debtor was absent and the hearing was adjourned to 19 January 2004.
15. On 17 January 2004, the debtor filed an affirmation in opposition to the Petition.
16. On 19 January 2004, the petition again came up for hearing before Deputy Judge Poon. The debtor was absent. However, he had called the court in the morning, saying that he had been robbed in Shenzhen and could not come to the court. A Bankruptcy Order against the judgment debtor was made with costs.
17. On 21 February 2004, the judgment debtor took out a Summons to set aside the Bankruptcy Order. This application also has a checkered history. It first came for hearing on 26 February 2004 before Deputy Judge Poon. The debtor appeared in person and told the court that he needed to instruct a lawyer to represent him. The matter was then adjourned to 6 April. There was a direction for the filing of affirmation by 11 March 2004. The learned deputy judge also ordered the judgment debtor to produce documents showing his entry and departure between Hong Kong and Shenzhen for the next hearing, and documentary proof on his lost of travelling documents.
18. No affirmation was filed on behalf of the judgment debtor on 11 March 2004 nor were solicitors instructed.
19. On 2 April 2004, a Notice to Act was filed on behalf of the debtor by Messrs Raymond Chan, Kenneth Yuen & Co.
20. An affirmation of the debtor was filed alleging new ground of opposition, namely that the debt was fully secured by the securities held by the judgment creditor and the Bankruptcy Order should be set aside.
21. The matter came before Deputy Judge Poon on 6 April. Directions were made for filing of Affidavits and for the Official Receiver’s Report and the matter was adjourned to 17 May 2004.
22. On 17 May 2004, the matter came before Chung J and it was adjourned to 19 July 2004 for the parties to file documents and affirmations.
23. On 13 July 2004, the debtor filed a Notice to Act in person.
24. On 19 July 2004, the matter came before Yam J. It was adjourned to 30 August 2004. The judgment debtor was ordered to file Statement of Affairs and Preliminary Examination Questionnaire and attend the office of the Official Receiver for preliminary interview within seven days and that the Official Receiver was ordered to file a further report within 14 days upon the completion of that. Various other directions were also given.
25. On 30 August 2004, at a call-over hearing, Sakhrani J after giving directions, adjourned the matter to a date to be fixed for argument before any judge with three hours reserved. The hearing was fixed to be heard on 8 December 2004.
26. On 8 December 2004, the debtor appeared in person. The plaintiff was represented by counsel.
27. In his careful and clear submission, the debtor relied on essentially four grounds in support of his application :
(1) The first ground relates to section 6B of the Bankruptcy Ordinance (“the Ordinance”), and the estimated value of the security under the charging orders provided under section 6B(1)(b). It provides : “A debt which is the debt, or one of the debts, in respect of which a creditor’s petition is presented need not be unsecured if either— (b) the petition is expressed not to be made in respect of the secured part of the debt and contains a statement by that person of the estimated value at the date of the petition of the security for the secured part of the debt.” (2) He was not indebted. Indeed, he has a counterclaim in the sum of $12.5 million. The debt is disputed on substantial grounds. (3) He had a plausible explanation for his absence on 19 January 2004. (4) Lastly, the petitioner’s debt only constituted 2% of his total indebtedness. He is trying to come to arrangement with his creditors. He intends to repay them.
I will deal with these reasons in turn.
Section 6B(1)(b)
28. Paragraph 5 of the petition is relevant :
“5. I hold security for payment of part of the above-mentioned sum by obtaining (1) a Charging Order Absolute made by Master J. Wong dated 12th May 2003 in the High Court Action against the Judgment Debtor’s interests of and in the shares of the companies as set out in Schedule One annexed hereto; and (2) a Charging Order Absolute made by Master Levy dated 9th July 2003 in the High Court Action against the Judgment Debtor’s interests of and in the asset specified in the Schedule Two annexed hereto. I estimate the aggregate value of such security be HK$500,000.00. This petition is not made in respect of the secured part of my debt.”
29. The shares referred to in Schedule One were shares in eight private companies. The petition was verified by the creditor’s affirmation of 27 August 2003.
30. The debtor’s complaint is that the estimate was wrong and/or not genuine. Accordingly, it was defective and for that reason the Bankruptcy Order ought to be annulled. He said, moreover, that paragraph 5 of the Petition has been contradicted by the second affirmation of the creditor which is dated 5 May 2004. The estimated value as stated in the petition was $500,000. But, according to the second affirmation, having regard to the absence of information, the petitioner was not in a position to provide an estimate which was really accurate. Moreover, subsequent information obtained by the Official Receiver showed that the security might have no value at all. For example, the petitioner said in his second affirmation :
“9. The Shares are of private companies to which I cannot ascertain the value of the same unless I have access to the update audited financial statements of the Companies. I obtained an Order for Examination against the Bankrupt in the High Court Action made by Master J. Wong dated 4th March 2003 and intended to ascertain the value of the Shares by the examination proceedings.
…
16. At the time of preparing the Bankruptcy Petition, I was advised by my Solicitors that I need to value the security and petitioned in respect of the unsecured debt. However, for the reasons aforesaid it was impossible for me to give an accurate estimation of the value of the Shares charged since I was denied access to any of the accounts of the Companies and other information in relation to the assets and liabilities of the Bankrupt. I am completely in the dark as to the assets and liabilities of the Companies.
…
20. Due to the non-disclosure of the Bankrupt and lack of response from BOC, I was put in an impossible position to give an accurate estimation of the value of the security under the Charging Order on Shares and the Charging Order on Land. I could only give a rough estimation of HK$500,000. If the value of the security is found to be greater than HK$500,000, I was prepared to treat the debt over HK$500,000 as unsecured debt and rank accordingly if there is any dividend payment at all.
…
29. It is not possible for me to give any accurate estimation of the value of the security held by me. Since the Bankrupt has in his custody, possession and control all material information relating to the valuation and since he is the applicant in the setting aside application, he is obliged to disclose all relevant information for the Court to determine his application. The Bankrupt should not be allowed to take advantage of his own willful non-disclosure to his benefits. Since the Bankrupt has failed to discharge his burden of proof, I humbly ask this Court to do justice to me and dismiss the Bankrupt’s application with costs on indemnity basis.”
31. Mr Vincent Chun, counsel appearing on behalf of the petitioner, referred me to the judgment of Susan Kwan DJ (as she then was) in Re Choi Chi Kwun [2000] 3 HKC 503 at 507 :
“In my view, the practice of the bankruptcy court which was derived from Re Button of not inquiring into the correctness of the petitioning creditor’s estimate provided that it was genuine should not be applied inflexibly having regard to the changes in bankruptcy legislation and in the light of the observations in Platts.”
32. There, she was dealing with a case where the submission made by the debtor was that had the true value had been stated the creditor would be fully secured.
33. Here I would not regard the best attempt that the petitioner had made in putting an estimate on the value of the security as an abuse of process. Nor a sufficiently serious non-compliance with section 6B as to warrant annulling the Bankruptcy Order.
34. Moreover, on the evidence before me, I am not satisfied that if the true value had been put on the security, the security would have exceeded the debt relied on. Indeed far from it. As appeared from the information available to me, it seems more likely than not that the security have negligible or no value.
Debt disputed on substantial grounds
35. This is supported by the debtor’s letter dated 26 August 2004. As I understand it, the debtor relied on two agreements for the sale of purchase of shares, both dated 10 May 2002. They related to the sale and purchase of shares in Lucky Brave Limited and Luck Good Limited. Each of these companies, I understand, owned a residential property in Tai Po. The total purchase price was $28 million and they were 100% financed by the DBS Bank by loans of $18 million and overdraft facilities of $10 million.
36. According to the debtor, the loan the subject of the plaintiff’s judgment was made in connection with these transactions. The defendant said that the sales were at a gross overvalue and that he had been advised by HSBC in October 2002 that the value of the properties were only $18 million. These properties have since been sold by the DBS Bank on a forced sale in March 2004 for $17.5 million. His claim of $12.5 million is based on it.
37. However, as appeared from the sale and purchase agreement produced, the sale took the form of a sale of shares in Lucky Brave and Luck Good. Each of those companies had a paid up share capital of 10,000 shares. There were two purchasers : Well Source (Asia) Limited and the debtor. In such transaction, Well Source (Asia) Limited purchased 9,999 shares and the debtor purchased one share. So even if there was a sale at a overvalue and that there was a viable claim in respect of such sale, the debtor personally would only be entitled to 1/10,000 of such loss. So, if the loss were $12.5 million, his share would only be $125,000, far less than the judgment sum.
38. Moreover, I am not satisfied that the debt is disputed on substantial or indeed bona fide grounds. As seen above, the judgment was obtained on 27 January 2003. There was no attempt to challenge it until 24 November 2004. All I have is the mere say so of the debtor. I am not satisfied on the evidence before me that the debtor has a substantial defence or counterclaim.
39. This is certainly not a case where the debtor has made out a strong prima facie case that the underlying debt is substantially disputed (see : Re Luk Tsun Yim [2000] 1 HKC 774 at 777).
Debtor’s explanation for non-appearance
40. I turn to consider whether he has a plausible explanation of the circumstances relating to his non-appearance at the hearing to result in a Bankruptcy Order.
41. This is what the debtor said in his affirmation of 21 February 2004 :
“由於在2004年1月19日清晨早上，從中國深圳黃崗口岸回港時，被乘坐電單車不法份子，搶去手提包，在深圳福田公安派出所協助錄取口供破案之用，令致本人被迫缺席高等法院上述案件之聆訊，本人雖然早已於2004年1月17日將反對破產之誓章交入法庭及交給對方代表律師，但因無法出庭抗辯，在沒有及時將深圳報案之依據交至法庭情況下，在沒有得到公平的審訊。”
42. However, at the hearing on 8 December he seemed to suggest that on that occasion he had also lost his Re-entry Permit. Maybe I have misunderstood him.
43. Now the debtor has produced two documents purportedly from the 福田派出所 in order to support his allegation that he was unable to attend on 19 January because he was robbed on 19 January. These documents did not say that he had been robbed of his Re-entry Permit. The two documents in Chinese are reproduced below :
“中國國家公安機構：深圳市公安局福田派出所發出二份証明。
第二份証明：
發出日期：2004年02月21日
簽發給：蔡榮章
因由：對深圳市公安局2004年01月19日發出案件編號作出情況屬實的証明依據
事由 ：案發人蔡榮章因此案發生突然 ，而于2004年01月19 日被迫缺席高等法院聆訊，在呈請人代表律師要求下，被潘兆初暫委大法官頌令破產。
負責人：羅家新
…
報警回执案號0001216
蔡榮章香港身份証持有人號 D004629(A)，於2004年1月19日早上約8時在回香港經黃崗 (深圳) 口岸附近被搶手提包，並於早上在深圳福田公安派出所協助破案，錄取口供，令致無法立即趕回香港，特此証明。
情況屬實 福田派出所
2004.2.21”
44. I am not satisfied that the debtor had been robbed, or that because of the robbery he could not return to Hong Kong. I do not believe that he had lost his Re-entry Permit. He did not mention it in his affirmation of 21 February 2004. Even if he had been robbed, I am not satisfied that he could not have returned to Hong Kong. No doubt as a good citizen he should assist the authorities in their investigation, but I cannot accept that he could not have returned to Hong Kong.
45. In all the circumstances, I am not satisfied that the debtor has a plausible explanation for his non-appearance.
Petitioner’s debt was only 2% of his total liabilities
46. Lastly, the fourth reason relied upon by the debtor is that the petitioner’s debt only constituted 2% on his total liabilities. He is trying to come to terms with his other creditors. There is no evidence of that. In any event, in all the circumstances of this case, this is not a reason which could persuade me to annul the order. I have no doubt that the court’s discretionary power to annul a Bankruptcy Order must be exercised with great caution and should not be exercised except in special circumstances.
47. For the above reasons, at the conclusion of the hearing on 8 December, the application to set aside the Bankruptcy Order was dismissed with costs.
| (Robert Tang) | |
| Judge of the Court of First Instance | |
| High Court |
Debtor in person, present
Mr Vincent Chun, instructed by Messrs W.K. To & Co., for the Creditor
The Officer Receiver (Appearance Excused)