有關陳子來的事宜

HCB 8632/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 8632 OF 2006

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J U D G M E N T

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Introduction

1.  By summons dated 12 September 2016 (“Summons”), Mr Chan Chi Loi (“Debtor”) applied under s 33(1)(a) of the Bankruptcy Ordinance, Cap 6 (“Ordinance”) to annul the Bankruptcy Order (“BO”) granted against him on 13 July 2007 by Chu J (as she then was).  According to the Summons, the purported ground of the application was that there was no legal basis to make the BO.  In the Summons, the Debtor also sought damages from the creditor for what was said to be the malicious and illegal petition presented against him.

2.  The BO granted by Chu J was after a contested trial in June 2007.  As summarised in her judgment dated 13 July 2007 at [39], Chu J rejected all the grounds on which the Debtor opposed the Petition.  Instead, Chu J was satisfied of the debts stated in the Petition and that the Debtor appeared to be unable to pay his debts.  Hence, the granting of the BO by Chu J.

3.  Afterwards, the Debtor’s appeal to the Court of Appeal under CACV 227/2007 was dismissed on 17 January 2008.  His application for leave to appeal to the CFA was dismissed in April 2008 by the Court of Appeal and in October 2008 by the CFA.

Further procedural history

4.  The Summons is already the 3^rd application by the Debtor under s 33(1)(a).

5.  The Debtor’s 1^st application under s 33(1)(a) was made by summons on 29 January 2009.  It was dismissed by Chu J on 23 February 2009. 

6.  As summarised in the Reasons for Decision of Chu J dated 2 March 2009, the Debtor raised altogether 3 grounds in support of the annulment application.  The 1^st two grounds revolved around the question of security which the Petitioner was said to have wrongly failed to mention in the statutory demand.  These two grounds had previously been rejected by Chu J and by the Court of Appeal and the Debtor was thus res judicata.  The 3^rd ground related to costs.  Chu J rejected this ground as well.  Chu J therefore found no merits in any of the Debtor’s grounds in support and thus dismissed the 1^st annulment application.

7.  Afterwards, the Debtor sought to appeal against Chu J’s annulment decision out of time.  It was dismissed by Chu J on 9 April 2009.  The Debtor further appealed to the Court of Appeal in CACV 101/2009.  The further appeal was also dismissed on 23 October 2009.  The Debtor then applied for leave to appeal to the CFA.  The leave application was dismissed by the Court of Appeal and by the CFA on 15 and 27 January 2010 respectively.

8.  The Debtor made his 2^nd application under s 33(1)(a) by summons dated 24 January 2014.  His 2^nd application was dismissed by Master Au‑Yeung on 14 July 2014 after a contested hearing in which both the Debtor and the Petitioner were represented by Counsel. 

9.  On that occasion, the Debtor apparently argued that the BO ought not to have been made because he was clearly solvent at the time the BO was made: see Master Au‑Yeung’s Reasons for Decision dated 22 July 2014 at [1].  For reasons fully set out in the Master’s Reasons for Decision, the Debtor’s argument was rejected and the 2^nd annulment application was dismissed accordingly.

10.  The Debtor’s subsequent appeal against Master Au‑Yeung’s decision was dismissed by the Court of Appeal on 12 June 2015 in CACV 164/2014.  His application for leave to appeal to CFA was dismissed by the Court of Appeal on 25 August 2015 and by the CFA on 18 April 2016.

Deliberation

11.  As this court said earlier, the Summons is already the Debtor’s 3^rd annulment application which came only months after the CFA had dismissed his application for leave to appeal regarding the 2^nd annulment application.

12.  In Kam Hung Cheung v Bank of China (Hong Kong) Ltd [2009] 3 HKLRD 597 at [10] and [11], the Court of Appeal expressed the law in this way:

“10. The Debtor applied for annulment of the bankruptcy order pursuant to section 33(1)(a) of the Bankruptcy Ordinance (Cap 6 of the Laws of Hong Kong), which provides as follows:

(1) The court may annul a bankruptcy order if it at any time appears to the court that ―

(a) on any grounds existing at the time the order was made, the order ought not to have been made; or …

Legal principles

11.  In paragraphs 22 to 26 of her judgment, Chu J elucidated the legal principles pertaining to an application for annulment. Neither party has taken issue with those principles, which we will respectfully adopt:

22. The relevant decided cases show that, in considering whether to exercise the power under section 33(1)(a), the court should first look at whether there were any grounds on which a bankruptcy order ought not to have been made at the material time when it was made.  If the court does not think that such grounds existed, it cannot invoke section 33(1)(a) to annul the bankruptcy order.  If the court thinks that such grounds existed, it still has to consider whether it should exercise its discretion to annul the bankruptcy order: see Society of Lloyds v Waters [2001] BPIR 698, 704G–H, and also Artman v Artman [1996] BPIR 511, 513–514, and Askew v Peter Dominic Ltd [1997] BPIR 163, 164.”

13.  Further, the Court of Appeal in Re Chan Chi Loi unrep, CACV 164/2014, 12 June 2015 at [12] expressed the view that although s 33(1)(a) does not expressly limit the number of times a bankrupt can apply to annul a bankruptcy order, that does not mean he can make such applications incessantly and without restraint.  After the previous application had failed, a bankrupt could not apply for annulment under s 33(1)(a) again on the basis of the same facts or grounds or grounds based on the same facts which he could have raised but had failed to do so.  This is because such conduct would be falling foul of the res judicata principle and constitute an abuse of process of the court.

14.  According to the Debtor’s affirmation dated 12 September 2016, the basis of the application to annul and for damages is that the Petition was presented maliciously and contrary to the requirements under sections 6(2)(b), 6(2)(1)[sic] and 6A(1)(a) of the Ordinance, as well as r 44(5) of the Bankruptcy Rules, Cap 6A.  No particulars were provided in his affirmation to substantiate the grounds of the application.

15.  In the present case, after considering the Debtor’s said  affirmation, as well as his skeleton submissions, this court agrees with the observations of the Official Receiver in his report dated 17 October 2016 and the Petitioner’s skeleton submissions that the Debtor’s affirmation does not introduce any new facts or evidence and that the issues now raised by the Debtor have previously been raised and adjudicated upon by various courts before, ever since the contested bankruptcy petition heard by Chu J in 2007.

16.  In these circumstances, this court is of the firm view that the present annulment application does not satisfy the requirements of s 33(1)(a) and it also falls foul of the res judicata principle.  The application must therefore be dismissed.

17.  For completeness, this court also sees no legal or factual basis in holding the Petition was malicious or illegal.  Nor can it see any jurisdictional basis in awarding damages to the Debtor under the Ordinance. The claim for damages must also be dismissed. 

Disposition and costs order nisi

18.  In the circumstances, this court hereby dismisses the Debtor’s summons dated 12 September 2016.

19.  There will be an order nisi that costs be to the Petitioner and the Official Receiver, to be summarily assessed on paper and paid by the Debtor forthwith. As far as the Petitioner is concerned, his costs are on a nisi basis summarily assessed at HK$85,000.  As far as the Official Receiver is concerned, his costs are on a nisi basis summarily assessed at HK$22,000.

HCB 8632/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 8632 OF 2006

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REASON FOR DECISION

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The application

1.  This is the debtor’s application to annul the bankruptcy order made against him on 13 July 2007.  The debtor argued that the bankruptcy order ought not to have been made because he was clearly solvent at the time when the bankruptcy order was made.

2.  The debtor recognised that even if it could be established that the bankruptcy order ought not to have been made, the court still retains a discretion as to whether the bankruptcy order should be annulled.  It was argued that the discretion should be exercised in his favour because:

(a) There was a defect in the statutory demand;

(b) He has now repaid almost all the debt and he is able to satisfy the remaining debts;

(c) He was not legally represented in the Petition hearing.

Solvency of the Debtor

3.  The first issue is whether the bankruptcy order ought not to have been made by the court on 13 July 2007.  Unless the answer to this issue is “yes”, there is no need for the court to consider the other issues raised by the debtor.

4.  For the purpose of this application, the debtor has produced new evidence to show that at the time of the bankruptcy order, he had the ability to pay all his debts.  His counsel argued that: “Such evidence was not placed before the learned Judge in the petition hearing…  Had this fact been known to the Court, there was a good chance that the bankruptcy order would be refused.”  (paragraphs 16 and 17 of the Debtor’s skeleton arguments)

5.  It was also argued on behalf of the debtor that “in an annulment application, the court may consider grounds that the debtor did not raise but could have raised.  Further, the court may consider new evidence not adduced before the court when the bankruptcy order was made.”  (paragraph 6(a) of the debtor’s skeleton arguments)

6.  I accept what the debtor’s counsel asserted to be correct.  A bankrupt or debtor should be able to argue points which have not been made in the bankruptcy proceedings.  However, the difficulty of the debtor herein is not that the argument was not raised at the hearing of the bankruptcy petition in 2007.  His difficulty is that this is already his second application which is made pursuant to section 33(1)(a) of the Bankruptcy Ordinance. 

7.  The debtor made his first application for annulment in early 2009 which was dismissed by Chu J (as her Ladyship then was).  It is apparent that the debtor must be well aware back in as early as 2007 of the existence of the ground which he is now relying on when the petition itself was heard because the debtor stated in paragraphs 20 to 21 of his affirmation filed in support of this application that:

“During the [petition] hearing, I did not adduce sufficient evidence about my financial position. I only mentioned my interest in the Tung Chung flat and the $100,000 paid into Court as security for costs. I simply thought that the irregularity provided a complete answer to the petition. I did not think that whether or not I was able to repay the debts should be an issue. If I have been properly advised, I would have adduced evidence to show that I was able to repay the debts, in order to avoid the bankruptcy order…”

8.  It is therefore clear that the matters which are now relied on by the debtor were known to him well before he made his first annulment application.

9.  Further, as Mr Tsui for the petitioner pointed out, the debtor had relied on the assertion that he had the ability to pay his debts when he made the application for stay of execution of the bankruptcy order in August 2007. This may be seen in paragraph 9(1) of Chu J’s Judgment handed down on 10 September 2007 which stated that:

“綜合陳先生的誓章和陳詞，他的申請理由可歸納如下：

(1) 債權人持有的抵押品的價值超過他所欠的債項。此外，他持有的資產的價值，足以償付欠債權人的債項。因此法庭不應頒下破產令…”

10.  In my judgment, the argument which the debtor would like to rely on herein should clearly have been raised in the previous annulment application. However, the debtor did not raise it before Chu J in 2009.  Neither did he raise it when he appealed to the Court of Appeal and the Court of Final Appeal against Chu J’s decision not to extend time for him to appeal against her Ladyship’s Decision on the annulment application out of time.  According to the principle of res judicata, the debtor should not be allowed to raise this argument on his ability to pay in this application again, as it would amount to abuse of process of the court.

11.  The case authorities cited by the debtor’s counsel cannot assist him because in none of those cases was there any previous annulment application in respect of which the appeal process had been exhausted.

12.  Mr Wong for the debtor submitted that the wider sense of res judicata (also known as Henderson v Henderson abuse of process) should not apply to bankruptcy proceedings.  He went as far as to submit that even if this application is dismissed by reason of the debtor’s failure to produce adequate evidence in support of his case, he is entitled to make yet another annulment application so that the necessary evidence may be adduced.  With respect, this highlights the flaw in his submissions.  The creditor petitioner should not be vexed twice (not to say more times) by way of annulment applications.  In my view, section 33 of the Bankruptcy Ordinance has given the debtor a second chance to argue on the bankruptcy order, but that should be the only extra chance.  The section does not give the debtor any permission to make annulment applications over and over again.  In the circumstances of the present case, given that the debtor clearly knew about his ability to pay at the time when the first application for annulment was made, I am of the view that it amounts to abuse of process of the court for the debtor to make a second application for annulment herein, even though the debtor was acting in person previously. The public and private interest demand that there should be a finality in the matter.  I do not think the petitioner should be placed in a much worse position merely by reason of the fact that the person that he was dealing with was not legally represented.  This is unfair to the petitioner.  I agree that on occasions the court tends to be a little more lenient to those litigants who are acting in person, but that does not mean that the court should lean backwards to assist these litigants.  The prime consideration of the court is doing justice between the parties.

13.  For this reason alone, the debtor’s application should be dismissed.

14.  However, for the sake of completeness, I would also add this.  In my view, even if the new evidence was placed before Chu J (as her Ladyship then was), the result would have been the same.  In the Judgment, her Ladyship had this to say:

“ 33. 債務人引述上訴法庭法官張澤祐在處理上訴訟費保證金申請的判案書以支持他有能力償付債項。該判案書在2004 年1 月20 日作出，第3 段提及債務人在1998 年不獲續約後沒有再工作，但他收到約95 萬元的公積金以及備有儲蓄。他和妻子亦共同持有一個約值230 萬元的物業。張法官因而認為不可以說債務人是沒有經濟能力(impecunious)。

34. 張法官的判案書誠然反映了債務人在2004 年初的經濟狀況，但不能直接顯示他目前是否有能力全數償付呈請所涉的債項。

  35.     更重要的是《破產條例》第 6A(1)(a) 條訂明，如債權人向債務人送達《法定要求償債書》，而債務人在21 天內沒有遵從償債書的要求，亦沒有要求把償債書作廢，則該名債務人會被視為第 6(2)(c) 條所指屬看似無能力償付有關債項的。按第6A(1)(a) 條，本案的債務人明顯屬看似無能力償付破產呈請所述的債項。”

15.  It is therefore clear that Chu J, in any event, would have made the bankruptcy order against the debtor by relying on section 6A(1)(a) of the Bankruptcy Ordinance which her Ladyship was entirely entitled to do. 

16.  It is also factually incorrect for the debtor’s counsel to submit in paragraph 21 of his skeleton arguments that:

“It is submitted that having considered the evidence of D’s solvency, the Court ought to have dismissed the petition, or at least adjourned it to allow time for D to pay, given the fact that D was clearly able to repay his debts. It follows that, on the balance of probability, the bankruptcy order ought not to have been made.”

17.  With respect, counsel has failed to note that according to paragraph 12(6) of Chu J’s Judgment on the petition, one of the grounds of opposition raised by the debtor was that:

“債務人正就HCA540/2006案陳健强特委法官的判決進行上訴，上訴法庭已排期本年9 月12 日聆訊。債務人應可在有上訴結果後才考慮是否支付各項訟費令。”

18.  It can be seen that no matter whether the debtor had the ability to pay at the time of the bankruptcy order, the fact is that he refused to pay the petitioner in full at the material time.  As far as the costs in HCA 540/2006 were concerned, he would only consider whether he would pay when the result of the appeal was known.  With this clear attitude, whether there was any evidence on solvency in existence was neither here nor there in the present case. 

19.  I also disagree with the debtor’s submission that Chu J. ought to have adjourned the petition to a later date so that the debtor could consider whether he should pay when the result of his appeal was known.  This is contrary to the well-known principle adopted by the bankruptcy court that the petitioner may base a bankruptcy petition on a judgment even if an appeal against the said judgment is pending, unless a stay of execution of the judgment has been granted.

20.  In fact, this point has also been dealt with by Lam J (as his Lordship then was) when he delivered his judgment in the Court of Appeal on the debtor’s appeal against the bankruptcy order made by Chu J.  His Lordship had this to say:

“債務人似乎認為他提出要求相關債務在HCA540/2006的上訴處理完畢後才了結為一合理的要約，鑑於他聲稱他有足夠的資產支付該等債項，法庭不應判他破產。本庭認為在本案中債務人這論點不能成立，因為正如上述分析，債務人沒有任何事實或法理基礎延誤他償還該等債項的時間。而且，就他聲稱他有足夠資產償還債項，在原訟庭聆訊破產案件時，債務人並沒有提出確實及可信賴的證據來支持他的聲稱。”(at paragraph 38 of the Judgment dated 17 January 2008, reported as [2008] 2 HKLRD 444)

21.  It can be seen that the Court of Appeal’s decision is two-fold.  Firstly, it was held that the debtor had no basis to delay the time for payment. Secondly, in any event, he had not provided sufficient evidence in support of his ability to pay.

22.  In other words, it was the decision of the Court of Appeal that even if there were adequate evidence to show the debtor’s ability to pay, his argument that he could delay payment until after the appeal of HCA 540/2006 was rejected. His argument that the bankruptcy order should not have been made was not accepted by the Court of Appeal.

23.  As a result, it is my view that the debtor’s application herein has to be dismissed anyway, no matter whether the principle of res judicata is applicable or not.

24.  Without disrespect to the industry of counsel, since I have dismissed the debtor’s annulment application, there is no need for me to, and I would not, deal with the debtor’s arguments on the exercise of discretion and consequential orders.

[submissions on costs]

Costs

25.  Costs should follow the event.  I therefore order that the debtor should pay the costs of the Official Receiver and the petitioner, with certificate for counsel.  This is a suitable case for such costs be summarily assessed pursuant to Order 62 rule 9A(1)(a).  I order that the debtor do pay the costs of the Official Receiver summarily assessed at $48,000 and costs of the petitioner summarily assessed at $120,000.  Payment should be made within 14 days.

HCB8632/2006

香港特別行政區

高等法院原訟法庭

民事司法管轄權

高院破產案件編號 2006 年第 8632 號

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判 決 書

1.  破產人在2009 年2 月3 日以傳票申請廢止破產令。本庭在2009 年2 月23 日拒絕申請，並在3 月2 日頒下判決理由書。

2.  2009 年3 月23 日破產人提出傳票，申請延期就2009 年2 月23 日的判決向上訴法庭提出上訴。

法律原則

3.  法庭在考慮是否行使酌情權延展提出上訴的期限時，一般會考慮以下事項：

(1)  延誤的長短；

(2)  造成延誤的原因；

(3)  擬提的上訴的成功機會；及

(4)  延期對訴訟其他各方所帶來的損害。

參考Hong Kong Civil Procedure 2009，vol. 1第 59/4/14 段。

延誤

4.  由於本訟案所涉的破產呈請是在2007 年12 月10 日前發出，因此向上訴法庭上訴的時限應是自作出有關之命令當日起計的21 天內。破產人擬上訴的判決是在2009 年2 月23 日作出，因此有關的上訴期限在2009 年3 月15 日屆滿。破產人在3 月17 日曾擬發出上訴通知書，其後在3 月23 日提出本申請。當中所涉的延誤不算嚴重。

5.  有鑑於他在誓章中所述事情，本席亦接受造成延誤是因為破產人對上訴期限有所誤會，以及以為要等待收到法庭印蓋命令後才可作出上訴。然而，本席必須指出，破產人指本席在2009 年2 月23 日聆訊中已同意他上訴的說法並不正確。破產人當時是詢問他可否就判決上訴，而本席僅告訴他在法律上他有權就判決上訴。本席並沒有同意或接受其上訴。

6.  此外，在聆訴時，車律師曾指出按《高等法院規則》第 59 號命令第 15 條規則，原訟法庭祇有在上訴期限未屆滿前才有權批准延展上訴期限的申請。然而按《破產條例》(香港法例第 6 章)第 100(4) 條，法庭有權在期限屆滿之前或之後，把有關的期限給予延展；而按該條例第 2 條的界定，「法庭」是指原訟法庭。此外，上訴法庭法官袁家寧在Re Li Sau Ying，HCMP2384/2007(判決日期：2007 年12 月11 日)案中，亦指出在破產法律程序中，有關逾期上訴的申請應由原訟法庭審理。

擬提上訴的成功機會

7.  破產人在誓章中夾附了擬發出的上訴通知書，當中列舉了上訴所依據的理由。破產人主要稱其案件涉及特殊情況。所指的特殊情況是：

(1)  債權人持有抵押卻沒有遵從《破產規則》第 44(5) 條的規定，但法庭仍批准呈請和作出破產令；

(2)  破產呈請所涉債項中的24,000 元訟費，由於破產人當時已就此提出上訴，因此不能確定由誰人支付，不屬於《破產條例》第 6(2)(b) 條所指須立即或將來向債權人支付經算定的款項；及

(3)  債權人向破產人送達的是無抵押的「法定要求償債書」，而非可支持呈請的有抵押的「法定要求償債書」，故此債權人未能符合法例的規定，向破產人送達有效的「法定要求償債書」。

8.  就第 (1)和第 (3) 點而言，破產人在原訟法庭抗辯破產呈請和在上訴法庭上訴破產令時已有提出，但不為法庭接納：見本案2007 年7 月13 日判案書第 19至31 段，及上訴法庭在CACV227/2007案2008 年1 月17 日判案書第 20至36 段。破產人曾就上訴法庭的判決，申請向終審法院上訴的許可，但分別為上訴法庭和終審法院上訴委員會拒絕。是故，就這兩項論點而言，上訴法庭的判決是終局判決，對破產人具有約束力。

9.  至於破產人所指的第 (2) 點特殊情況，不容爭議的法律原則是：除非法庭另有命令外，上訴程序不會導致暫緩執行上訴所涉的判決，或使該判決失去效力。破產人在誓章中亦援引《高等法院規則》第 62 號命令第 4(2) 條規則。然而該規則並不會如破產人所指，導致原審法官的訟費令在等候上訴期間失去効力。

10.  基於上述分析和理由，破產人擬提的上訴並沒有成功機會。

總結

11.  有鑑於破產人擬提的上訴並沒有成功機會，本席認為不應行使酌情權力把上訴期限延展。本席因此拒絕破產人的傳票申請。

12.  因應一貫的民事訴訟常規，破產人須支付債權人因本申請所招致的訟費，有關的訟費將自破產人的資產中支付。

13.  就訟費的款額問題，債權人要求法庭以一整筆訟費令的形式處理，並提交了一份訟費單。連同出席聆訊的費用(以半小時計)，債權人共要求10,000 元的訟費(即共2½ 小時x 4,000 元)。經考慮本申請的性質和所涉文件及議題，本席認為適當的訟費是8,000 元(即2 小時x 4,000 元)。

命令

14.  本席就2009 年3 月23 日的傳票作出下列命令：

(1)  拒絕申請。

(2)  債權人因本申請所招致的訟費由破產人資產中支付；款額評定為8,000 元。

破產人：無律師代表，親自出庭。

債權人：由黃許律師行車偉恆律師代表出庭。

破產管理官：缺席。

HCB8632/2006

香港特別行政區

高等法院原訟法庭

民事司法管轄權

高院破產案件編號2006年第8632號

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判 決 理 由 書

1. 應債權人的申請，法庭在2007 年7月 13 日針對陳子來先生(「破產人」)頒下一項破產令(「破產令」)。破產人向上訴法庭提出上訴，案件編號是CACV227/2007。2008 年1 月17 日，上訴法庭駁回上訴。其後，上訴法庭和終審法院分別拒絕批予向終審法院提出上訴的許可。

2. 2009 年2 月3 日，破產人提出傳票，申請按《破產條例》第33(1)(a) 條廢止破產令。本席經聆訊後，拒絕申請，有關理由如後。

3. 破產人的申請主要是基於下列三點理由：

(1)     債權人就大部分破產呈請所涉債項持有抵押，但在《法定要求償債書》卻刻意錯誤聲稱債項是無抵押的，而且沒有遵守《破產規則》第45(5) 條的規定，就抵押物業定出價值。破產人指若果債權人當時提交了抵押物業的價值，清楚顯示價值是高於債項的總額，債權人便沒有足夠理由提出破產呈請。

(2)     債權人在2006 年9 月20 日的《法定要求償債書》中宣稱債項是無抵押的，即是根據《破產條例》第6(2)(b) 條提出。然而，破產呈請卻稱債項是有抵押。是故，破產呈請並非源自2006 年9 月20 日的《法定要求償債書》，破產程序因而沒有起點，破產呈請亦是無效。破產人亦指債權人不可以在法律程序中改變引用的法例。

(3)     破產呈請所涉債項包括HCA540/2006案中原訟法庭特委法官陳健強在2006 年8 月2 日所頒令的訟費。破產人在CACV282/2006案中上訴該項訟費命令。破產人稱基於《高等法院規則》第62 號命令第4(2) 條規則，陳法官的訟費令已被廢止，故此債權人不能以該訟費令向他追討。

第 (1)、(2) 項申請理由

4. 破產人的首兩項理由都是環繞《法定要求償債書》錯誤陳述債權人對債項不持有抵押。破產人在抗辯破產呈請和針對破產令提出上訴時，均已提出《法定要求償債書》在這方面的錯誤，並以此作為反對和上訴破產令的理由。然而，破產人的論點並沒有為法庭所接納：見本案2007 年7 月13 日作出破產令的判案書第19至31 段，以及CACV227/2007案上訴法庭2008 年1 月17 日判案書第20至36 段。

5. 《破產條例》第33(1)(a) 條規定：

「(1)   如法院在任何時間覺得——

(a)    基於在作出破產令時存在的任何理由，該破產令本不應作出；

….

則法院可廢止該破產令。」

6. 基於有關《法定償債要求書》有錯這項論點在頒下破產令時和相關的上訴中已為法庭所拒絕，第33(1)(a) 條並不適用。

7. 再者，按既判事情，不可再爭辯 (res judicata) 的法律原則，破產人不能就同一事由和論題重複訴訟，亦不能藉此已判定的論題要求廢止破產令。

8. 破產人的首兩項理由不能成立。

第 (3) 項申請理由

9. 破產人第 (3) 項申請理由是建基於《高等法院規則》第62 號命令第4(2) 條規則。該規則如下訂明：

「(2)   在一宗上訴案件中，引致該宗上訴的法律程序的訟費，以及該宗上訴的訟費和與該宗上訴相關連的法律程序的訟費，可由聆訊該宗上訴的法庭處理；而如任何法律程序由任何其他法庭移交或轉移至原訟法庭，則整體法律程序的訟費，包括移交或轉移之前及之後的訟費，可(除命令作該移交或轉移的法庭另有命令外)由該等法律程序移交或轉移所至的法庭處理。」

10. 該規則祇是說明上訴法庭在處理上訴時可就上訴和下級法院的法律程序所涉的訟費作出命令。它並沒有如破產人所主張的效力，即廢止或擱置了HCA540/2006案中陳特委法官的訟費命令。

11. 至於上訴法庭在2008 年1 月17 日所作的暫准訟費令，它是按《高等法院規則》第42 條命令第5B(6) 條作出。該條例訂明：

「凡依據本條規則發表書面決定，法庭可在該書面決定中作出關於訟費的暫准命令，而除非有人提出申請更改該命令，否則該命令在決定宣告後14 天即成為絕對命令。」

12. 由於上訴案件中的訴訟各方都沒有要求更改該暫准訟費令，按上述規則的規定，該暫准令在作出後14 天便己成為絕對命令。

13. 而且，上訴法庭的暫准訟費令祇是針對上訴案中的訟費，對原訟法庭在HCA540/2006案中所作的訟費命令並無影響。

總結

14. 基於上述原因，破產人的傳票申請不能成立，本席因此拒絕申請，並頒令債權人因本申請所招致的訟費由破產人資產中支付，如就數額方面不能達成協議，可交法庭評估。

上訴法庭拒絕有關債務人申請延長上訴期限。請參閱CACV101/2009 日期: 2009年10月23日

HCB8632/2006

香港特別行政區

高等法院原訟法庭

民事司法管轄權

高院破產案件編號2006年第8632號

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