RE LO SHIU MUI

HCB 10596/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO. 10596 OF 2007

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J U D G M E N T

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1.  This was an application by Ms Lo Shiu Mui for the annulment of the bankruptcy order made against her on 26 March 2008 pursuant to section 33(1)(b) of the Bankruptcy Ordinance (Cap. 6).  Ms Lo previously made an unsuccessful application pursuant to section 30B of the Ordinance seeking an early discharge from her bankruptcy (see Re Lo Shiu Mui [2009] 4 HKLRD 713).

2.  The background to Ms Lo’s bankruptcy is set out in my judgment in respect of her earlier application, and can be summarised as follows:-

(1)     On 1 March 1995, Ms Lo granted an all monies legal charge and mortgage over a property owned by her to the Industrial & Commercial Bank of China (Asia) Ltd (“the Bank”), to secure the debts of a company called United China International Limited (“United China”), of which she was a director.  According to Ms Lo, United China was in fact owned and run by her then husband, and she was not involved in its management.

(2)     United China failed to repay its indebtedness to the Bank, resulting in the Bank commencing proceedings against United China and Ms Lo, in which the Bank obtained a judgment for a little over HK$7.6 million against both United China and Ms Lo in September 1999.  Ms Lo did not dispute her liability to the bank in those proceedings.

(3)     In October 2004, the Bank sold the mortgaged property for some HK$4.77 million, leaving an amount of HK$3 million odd outstanding under the judgment.

(4)     On 17 December 2007, the Bank presented a bankruptcy petition against Ms Lo, relying on the unpaid balance of the judgment debt, which, with accrued interest, then stood at a little over $3.8 million.

(5)     On 26 March 2008, Master Levy made a bankruptcy order against Ms Lo, who had not appeared in response to the petition.

(6)     Ms Lo says that she was unaware of the bankruptcy petition until shortly after the bankruptcy order was made.

(7)     On becoming aware of the bankruptcy order, Ms Lo contacted the Bank’s solicitors.  Thereafter, with the help of her employer Eversense International Limited (“Eversense”), a company of which she was a 50% shareholder and a former director, a settlement was reached with the Bank whereby the Bank agreed to accept HK$356,000 from Eversense in full discharge of her liability to the Bank, inclusive of its costs in connection with the bankruptcy proceedings.

3.  On 24 April 2008, The Bank’s solicitors wrote to the Official Receiver informing them of the settlement and enquiring whether the Official Receiver would have any objection to an intended application by Ms Lo for an annulment of her bankruptcy in the light of the settlement.  The Official Receiver’s response was that it was not possible to obtain an annulment on the basis of a settlement or accord and satisfaction where there had not been full payment of the bankrupt’s debts (Re Lo Cheuk Chiu (unreported, CFI, HCB 8036/2006, 25 January 2008).

4.  Ms Lo then decided to make an application for early discharge from her bankruptcy pursuant to section 30B of the Ordinance, rather than seek an annulment of her bankruptcy pursuant to section 33(1)(b).  Unfortunately, that application was unsuccessful, for the reasons explained in my judgment in relation to it.

5.  The present position is that the Bank has made it clear that it does not regard itself as a creditor of Ms Lo any longer, and has not sought to prove in her bankruptcy.  No other creditors have sought to prove in the bankruptcy, and none have appeared in respect of this application, which was duly advertised.

6.  Ms Lo’s present application is for an annulment of her bankruptcy pursuant to section 33(1)(b) of the Ordinance.  That section provides as follows:-

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

         …

(b)     to the extent required by the rules, the provable debts and the expenses of the bankruptcy have all, since the making of the order been either paid or secured to the satisfaction of the court.”

11.  The key question in the present case is whether the word “paid” appearing in section 33(1)(b) of the Ordinance should be construed as meaning fully paid, or whether where a debt has been settled without full payment of it, but in circumstances in which the debt is extinguished, it can properly be regarded as having been “paid”.

12.  In my view, it is necessary to have regard to the history of the development of the statutory provision in order to resolve this question.  Prior to its amendment in 1996, section 33(1) of the Bankruptcy Ordinance was (so far as material) in the following terms:-

“(1)   … where it is proved to the satisfaction of the court that the debts of the bankrupt are paid in full, the court may, on the application of any person interested, by order annul the adjudication.”

13.  The old section 33(1) was identical to section 29(1) of the Bankruptcy Act 1914 in the United Kingdom, which in turn was identical to section 35 of the Bankruptcy Act 1883.  That provision was considered by the English Court of Appeal in Re Keet [1905] 2 KB 666.  In Re Keet, most of the bankrupt’s creditors who had proved in his bankruptcy executed a deed releasing him from liability to them, without any consideration having been provided.  The rest of his creditors were paid in full.  The bankrupt then applied for an annulment of his bankruptcy.  The Court of Appeal, reversing the court below, held that he was not entitled to an annulment, as there had been no payment “in full” of his debts within the meaning of section 35 of the 1883 Act.

14.  In that case, Vaughan Williams LJ said (at pp. 674 to 675):-

“… I think that in practice [the section] has always been construed as meaning that the condition of annulment is payment in full of all debts which have been admitted to proof, unless the proof has been expunged on the ground that it never ought to have been admitted.

…to construe the section in the way contended for on behalf of the bankrupt would undoubtedly open the door to arrangements with creditors under which the Court, in ignorance of the true facts, might in the exercise of its discretion … order annulment of a bankruptcy which the Court, if it had known the circumstances under which the releases were obtained, would have refused to annul.

… I think that the Court ought to read “debts” in s. 35 as meaning debts admitted to proof, because to hold “debts” to mean “provable debts” would make the payment in full by a bankrupt of debts for advances by relations and friends, who have not proved conditionally or otherwise, or in any way intervened in the bankruptcy, a condition precedent to the power of the Court to annul.”

15.  Stirling LJ had this to say (at p. 677):-

“The language of the Act, interpreted according to its natural meaning, appears to me to require a payment in full, a payment of money, something which in an action of law could, under the old practice, have been pleaded as a payment.  If these releases had been given in consideration of a small payment, in my judgement they would not have satisfied the requirements of the Act; and still less can releases given without any consideration at all.  … in the absence of special circumstances, it would not be a good exercise of discretion to make an order of annulment where, if the bankrupt were applying for his order of discharge, an order of discharge would not be granted.”

16.  It seems to me that two things are clear from that decision.  First, emphasis was placed on the reference in the section to payment “in full”.  Second, the court was concerned to avoid the possibility that a bankrupt might obtain by an annulment, a result which would be similar to that of a discharge from bankruptcy – something that was very difficult (and indeed, almost impossible) to obtain under the old bankruptcy regime.

17.  It is also, I think, relevant to note that the debts which were required to be discharged by payment in full were those which had been proved in the bankruptcy.

18.  The United Kingdom provisions in relation to bankruptcy were substantially amended by the Insolvency Act 1986.  The old provisions relating to annulment under section 29(1) of the Bankruptcy Act 1914 were replaced by Section 282(1) of the Insolvency Act, which is materially identical to the present section 33(1) of Hong Kong’s Bankruptcy Ordinance.

19.  The change was based on the Cork Report, prepared by the committee chaired by Sir Kenneth Cork to consider reforms to the United Kingdom bankruptcy regime.  That report proposed wide ranging reforms, including the introduction of provisions for the automatic discharge of bankrupts from bankruptcy after the lapse of a period of time, thus shifting the focus of the bankruptcy laws in favour of the rehabilitation of the debtor, to enable him to re-enter commercial life with a clean slate.  Paragraph 619 of the Cork Report, dealing with termination of bankruptcy proceedings, stated:-

“… Under our proposals, the Court will have power to terminate a [Bankruptcy Order] if the debtor can satisfy the Court of his having paid or his ability to pay his debts in full.  The court will possess a wide discretion to ensure that the interests of the creditors, commercial morality and public policy are each sufficiently safeguarded.”

20.  In the United Kingdom, apart from the changes introduced by the Insolvency Act, subsidiary legislation in the form of the Insolvency Rules were also brought into effect.  Those rules included provisions bearing on applications for annulment under section 282(1)(b) of the Insolvency Act, such as rule 6.207, which required the trustee in bankruptcy to report on whether or not there were known creditors who had not proved, rule 6.209, which enabled the court to adjourn an application for annulment to enable the trustee to notify such creditors of the application and require them to lodge their proofs (if they intended to do so) within a stated period of time, or to advertise for proofs from unknown creditors, with a view to ensuring that any creditor who wished to prove in a bankruptcy was given an opportunity to do so, and rule 6.211, which continued to require full payment of all debts proved in the bankruptcy, and provided for the giving of security for disputed proofs, or proofs submitted by creditors who were no longer contactable.  Separately, there were provisions enabling proofs to be amended, withdrawn (by agreement between the creditor and the Official Receiver), or expunged.

21.  When Hong Kong came eventually to consider reforms to its own bankruptcy regime, these were based on a report of the Law Reform Commission in 1995, which largely recommended adoption of the amendments which had been made in the United Kingdom.  In its report, the Commission recommended the adoption of the amendments effected by section 282(1)(b) of the Insolvency Act 1986, in the following terms:-

“7.8   The Official Receiver also proposed the adoption of the provision under the Insolvency Act [i.e., section 282(1)(b)] that, if the bankruptcy debts and expenses have all, since the making of the order, been either paid or secured for to the satisfaction of the court, the court may annul the order.  This provision would change the emphasis under the Bankruptcy Ordinance as it would not longer be essential that the debts have been fully paid in case so long as the court is satisfied that the debts have been fully secured.  We recommend that it should be left to the discretion of the court to decide whether debts have been properly paid or secured for.”

22.  This resulted in the enactment of the new section 33(1) of the Bankruptcy Ordinance.  However, although that provision refers, in the opening words of subsection (1)(b) to “the extent provided by the rules”, no relevant rules have ever been introduced by way of subsidiary legislation.

23.  Against this background, what meaning is to be given to the word “paid” in section 33(1)(b)?  In Re Lo Cheuk Chiu, Deputy Judge To considered that “paid” in this context meant paid in full, regarding the inclusion of the words “in full” in the old legislation as mere surplusage, so that their omission in the current provision makes no difference.  In his view, if a debt was “paid”, it necessarily had to be paid in full.

24.  With respect, that does not seem to me to be the only meaning that can be given to the word “paid”.  In my view, while a debt would undoubtedly be regarded as having been “paid” if it is paid in cash in full, it is equally possible to regard a debt that has been discharged, whether by full or partial payment, or by the substitution of the payment obligation with a different obligation (for example to provide goods or services) as having been “paid”.  The dictionary definitions of “paid” include “to satisfy” or “to discharge an obligation” (see the definitions in the Shorter Oxford English Dictionary).  While a release unsupported by consideration would not, I think, amount to payment, a payment of a lesser sum in discharge of an debt amounting to an accord and satisfaction which has the effect of extinguishing the debt would, in my view, be aptly described as a situation in which the original debt has been “paid”, although perhaps not “in full”.

25.  Further, having regard to the different meanings of the word “paid” that I have identified, it does not seem to me that the inclusion of the words “in full” in the old version of the legislation should be regarded as mere surplusage.  It seems clear from the views expressed by the English Court of Appeal in Re Keet that the requirement of payment “in full” played an important part in the court’s reasoning.  From this, it follows that I would not regard the omission of those words from the current provision as being of no significance.  On the contrary, it seems to me that their omission is entirely consistent with the interpretation of the word “paid” having the wider meaning which I have mentioned.

26.  Further, the adoption of the wider interpretation of the word “paid” would also appear to accord with the recommendation of the Law Reform Commission that it should be left to the discretion of the court to decide whether a debt had been properly paid or secured for.

27.  Miss Man submitted that to construe the word “paid” in this way would be to read into the section words (such as “settled” or “discharged” or “satisfied”) that are not there.  However, given that the word “paid” is capable of connoting these meanings, it does not seem to me that this criticism is well-founded.  I would therefore, with respect, disagree with the conclusion reached by Deputy Judge To.

28.  Mr Chan also relies on the decision of the English Court of Appeal in Official Receiver v McKay as supporting the adoption of a wider approach to the meaning of the word “paid”.  In that case, a bankruptcy order was annulled under section 282(1)(b) of the Insolvency Act 1986 where the proof submitted by the only creditor was withdrawn by agreement between the trustee (in that case the Official Receiver) and the creditor concerned.  Mrs McKay (the bankrupt) appealed against the annulment on this basis, as she wished to contend that an annulment should have been granted under the other limb of section 282(1) – namely, subsection (1)(a), on the basis that the bankruptcy order against her should never have been made.

29.  In that case, the court of appeal held that it was appropriate to order the annulment of the bankruptcy under section 282(1)(b), as there was no longer a proof in Mrs McKay’s bankruptcy, the only proof having been withdrawn in accordance with the rules.  The court held that although rule 211 of the Insolvency Rules required payment in full of all proved debts, what was required was payment in full of all proved debts as the proofs stood at the time of the application for annulment, so that where a proof had been withdrawn, it need not be paid, and where it had been reduced by an amendment to it, all that was required was that the reduced amount should have been fully paid.

30.  While the case is not of direct application to the situation before me, given the absence in Hong Kong of rules equivalent to those in the Insolvency Rules, there are some observations by the English Court of Appeal which are, I think, of relevance for present purposes.  In particular, Lloyd LJ drew attention (at paragraph 38 of the judgment) to the point that the section could fairly be regarded in the light of the changed policy as to discharge, so that the approach in the older English cases, such as Re Keet, where the court’s concern to minimise the possibility that the formerly restrictive provisions in relation to discharge could be too easily avoided, was no longer appropriate in the light of the new approach.

31.  In the circumstances, it does seem to me that I should not follow the interpretation of section 33(1)(b) adopted by Deputy Judge To, but adopt instead the more liberal interpretation advocated by Mr Chan, particularly as there would seem to be little point in continuing with this bankruptcy, where there is a surplus of assets, and no creditor laying claim to them.

32.  Ms Man also suggested that in a situation such as the present, it would have been open to Ms Lo to have proposed an individual voluntary arrangement in respect of her debts, under which full information would have been provided to her creditors of her financial position.  With respect, I do not see that this would have been an approach that should have been taken.  The purpose of an individual voluntary arrangement is to enable a compromise to be adopted that is binding on all the creditors of the debtor, whether or not they individually agree to it, provided that the necessary proportion of the creditors (three quarters in value and a majority in number) agree.  It is designed to deal with a situation in which the debtor is unable to agree terms with all of the creditors individually.  Where a debtor has, as here, only a single creditor, with whom he is able to agree terms on which his debt to the creditor will be discharged, there is no reason to require him to go through the individual voluntary arrangement procedure – after all, with only a single creditor, his consent would be required in any event.  Moreover, in the present case, it is difficult to see how any such arrangement could be proposed, given that the petitioner has made it clear that it no longer regards itself as a creditor of Ms Lo, so that there would be no creditor to attend any meeting that might be convened for the purpose of considering such an arrangement if one were to be proposed.

33.  Ms Man also indicated that the Official Receiver was concerned as to whether or not the petitioner had entered into the compromise with adequate information as to Ms Lo’s financial position.  With respect, that is a matter for the petitioner to consider for itself.  In any event, the petitioner was legally represented, and would have had the benefit of its solicitors’ advice in relation to the settlement that was reached.  Those solicitors had also assisted Ms Lo to draw up her statement of affairs, and to approach the Official Receiver with a view to obtaining an annulment of her bankruptcy, and they would therefore have had available to them information concerning her financial position.

34.  I am therefore satisfied that it is open to me to grant the annulment sought, if it would otherwise be appropriate to exercise my discretion in favour of doing so.  For the reasons which I explained in paragraph 33 of my judgment dealing with Ms Lo’s application for early discharge, I am satisfied that it would be appropriate for me to exercise my discretion in her favour and grant the annulment sought.

35.  Finally, I would respectfully disagree with Deputy Judge To insofar as he suggested that commercial morality demands the refusal of an order of annulment in a case such as this, on the basis that the bankrupt has not paid the whole of her debt to the petitioner in full, and has no intention of doing so.  With great respect, it seems to me that to take such a view does not give sufficient regard to the encouragement that the law has always given to parties to settle their disputes wherever possible.  Where the parties have entered into a freely negotiated compromise, it seems to me that there is nothing commercially improper in respecting it.  In the present case, the petitioner has made it very clear that it does not regard the bankrupt as being indebted to it any longer, and does not intend to participate in her bankruptcy.  That being so, and there being no other creditors of the bankrupt (none have appeared despite the application having been appropriately advertised), commercial morality would, I think, be better served by permitting the bankrupt to obtain an annulment of her bankruptcy and returning to normal commercial life.

36.  Thus, for the reasons which I have given, I shall order that Ms Lo’s bankruptcy should be annulled pursuant to section 33(1)(b) of the Ordinance.  So far as the costs of the application are concerned, as it was, in my view, appropriate for the Official Receiver to have appeared on the application, and to do so by counsel, I shall make a costs order nisi that Ms Lo is to pay the Official Receiver his costs in relation to this application, such costs to be taxed on the party and party basis if not agreed.

HCB 10596/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCYPROCEEDINGS NO. 10596 OF 2007

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J U D G M E N T

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1.   This was an application by Ms Lo Shiu Mui, a bankrupt, seeking an early discharge from her bankruptcy pursuant to section 30B of the Bankruptcy Ordinance (Cap. 6).

2.   Ms Lo was made bankrupt on 26 March 2008, when Master Levy made a bankruptcy order against her. This was the first occasion on which she had been made bankrupt. The bankruptcy petition against her was presented by the Industrial & Commercial Bank of China (Asia) Ltd ( the Bank ) on 11 December 2007. It was based on the balance of a judgment debt which the bank had obtained against Ms Lo in earlier proceedings against her and a company called United China International Limited ( United China ). Those proceedings arose out of an all monies legal charge and mortgage ( the Mortgage ) which Ms Lo had granted to the Bank on 1 March 1995, over property which she owned, as security for the debts of United China, a company which she says was owned by her husband (from whom she is now separated). Ms Lo says that, although named as a director of United China, she was never involved in its management or its business.

3.   Ms Lo did not dispute her liability to the Bank under the Mortgage, and the Bank recovered judgment against her in a sum of slightly over HK$7.6 million in September 1999. Some years later, in October 2004, the Bank sold the mortgaged property for some HK$4.77 million, leaving a debt of about HK$3 million outstanding. By the time the bankruptcy petition was issued, the outstanding debt had risen to HK$3,814,244.54 as a result of accrued interest.

4.   Ms Lo appears to have been unaware of the bankruptcy petition against her. At any rate, she did not appear at the hearing when the bankruptcy order was made against her. She says that she became aware of it later the same day, when she was informed of it by the issuer of a credit card which she held.

5.   At the time of the bankruptcy order, Ms Lo was employed by a company called Eversense International Limited ( Eversense ), earning an annual income of HK$216,000 per month. She has worked for the same company since about 1996. It appears from corporate records of Eversense that she was until 17 March 2008 a director of that company, and that she was the registered owner of 50% of its issued shares (100,000 out of 200,000 shares).

6.   When she became aware of the bankruptcy order, Ms Lo contacted the solicitors acting for the Bank. With the assistance of Eversense, she reached an agreement with the Bank to accept HK$300,000, plus HK$56,000 in respect of the Bank s costs, from Eversense in order to discharge her liabilities to the Bank. Eversense paid these amounts to the Bank on 22 April 2008, and on the same date, the Bank s solicitors informed Ms Lo that on receipt of the payment, the Bank would not object to an application by Ms Lo seeking the annulment of her bankruptcy pursuant to section 33 of the Bankruptcy Ordinance.

7.   Thereafter, on 23 April 2008, Ms Lo filed a Statement of Affairs in her bankruptcy, and on 30 April 2008, she completed a Preliminary Examination Questionnaire.

8.   Meanwhile, on 24 April 2008, the Bank s solicitors wrote to the Official Receiver informing them of the settlement that the Bank had reached with Ms Lo and Eversense, and enquired whether the Official Receiver would have any objection to the annulment application which Ms Lo intended in due course to make. On 6 May 2008, the Official Receiver indicated that in the light of the decision in Re Lo Cheuk Chiu (unreported), CFI, Deputy Judge A To, HCB 8036/2006, 25 January 2008, it did not appear that a compromise or accord and satisfaction would provide grounds for an annulment order under section 33(1)(b), as the court in that case had held that the court only had jurisdiction to annul a bankruptcy order if the debts and expenses in the bankruptcy had been either paid in full, or secured to the satisfaction of the court, to be paid in full after annulment.

9.   In the light of that response, Ms Lo appears to have decided against making an application for annulment of the bankruptcy order pursuant to section 33 of the Bankruptcy Ordinance. Instead, on 6 June 2008, she made this application, pursuant to section 30B.

10.   Since the making of the application, the Official Receiver has filed a number of reports, as he is required to do pursuant to Rule 91 of the Bankruptcy Rules, to apprise the court of the relevant information in relation to the bankruptcy that are specified in that rule, and any other matters which ought, in his opinion, to be brought to the court s attention.

11.   In the reports which he has filed, the Official Receiver has drawn the court s attention to a number of matters, including the level of Ms Lo s indebtedness at the time the bankruptcy petition was presented and the bankruptcy order made, the failure of Ms Lo to mention her 50% shareholding in Eversense in her Statement of Affairs or Preliminary Examination Questionnaire, and Ms Lo s apparent failure to answer accurately a number of questions in her Preliminary Examination Questionnaire. These related to directorships held by her in the five years preceding her bankruptcy (she had during this period been a director of four companies, but had referred to none of them in her responses), to her repayment of a debt of HK$500,000 to Eversense in the two years prior to her bankruptcy, and to her transfer of a share in a company called Besen International Limited to her son shortly before her bankruptcy.

12.   At the hearing, the Official Receiver appeared through counsel (Miss Man) to draw the court s attention to his concerns as to whether or not the court had jurisdiction to grant an early discharge in the circumstances of this case, and to bring the other matters referred to in the previous paragraph to the court s attention. Miss Man made it clear, however, that the Official Receiver did not object to the discharge of Ms Lo on any of the grounds set out in section 30A(4) of the Bankruptcy Ordinance.

13.   Section 30B of the Bankruptcy Ordinance provides:-

(1) Notwithstanding that the relevant period under section 30A has not yet expired, a bankrupt who C

(a) Has not been previously adjudged bankrupt may, at any time apply to the court for an order discharging his from bankruptcy.

(2) The court shall not make an order under this section if the bankrupt C

(a) Has previously entered into C

(i) A composition or scheme of arrangement under this Ordinance, as it existed before the Bankruptcy (Amendment) Ordinance 1996 (76 of 1996) came into operation; or

(ii) A voluntary arrangement;

(b) Has unsecured liabilities that exceed 150% of the income that the trustee determines was derived by the bankrupt during the year immediately before the date of the bankruptcy order;

(c) Has failed to disclose a beneficial interest in any property;

(d) Has failed to disclose any liability that existed at the date of the bankruptcy order;

(e) Has failed to disclose in his statement of affairs income that he expected in the 12 months following the filing of the statement;

(f) Has engaged, after the date of the bankruptcy order, in misleading conduct in relation to a person in respect of an amount or amounts exceeding $15,000;

(g) Has after the date of the bankruptcy order continued to act as a director or taken part in the management of a company, except with the leave of the court, contrary to section 156 of the Companies Ordinance (Cap. 32);

(h) Has failed or refused to give his passport or other travel document to the trustee when requested to do so; or

(i) Has failed to co-operate with the trustee.

14.   These provisions were based on Australian legislation C section 27 of the Bankruptcy Amendment Act 1991, which introduced new provisions relating to the early discharge of a bankrupt. The provisions of section 30(2) closely follow those of sections 149X to 149ZE of the Australian Bankruptcy Act, which were introduced by section 27 of the 1991 Amendment Act. As we shall see, however, they are not identical, and it is on the differences in wording between the Hong Kong and Australian provisions that Mr Chan, appearing for Ms Lo, has focussed.

15.   For present purposes, the relevant parts of section 30B(2) are paragraphs (b) and (c).

16.   So far as section 30B(2)(b) is concerned, the Official Receiver submits that as Ms Lo s debts at the time of her bankruptcy were in excess of HK$3.8 million, they exceeded by well over 150% the income derived by her in the year preceding the making of the order (which was HK$216,000), so that this subsection deprives the court of jurisdiction to make the order sought.

17.   Mr Chan, however, submits that the wording of section 30B(2)(b) directs the court s attention not to the situation as at the time when the bankruptcy order was made, but as at the time of the application for annulment. He places reliance on the fact that the Hong Kong legislation is phrased in the present tense, referring, as it does to the situation where the bankrupt has unsecured debts that exceed 150% of his or her income in the relevant period before the bankruptcy order (my emphasis).

18.   By contrast, section 149Y(1) of the Australian Bankruptcy Act, which is the corresponding provision to section 30B(2)(b) provides that a bankrupt is disqualified from early discharge if the bankrupt s unsecured liabilities exceeded 150% of the income that the trustee determines to have been derived by the bankrupt during the year immediately before the date of the bankruptcy (again, my emphasis).

19.   Mr Chan submitted that whereas the Australian legislation, by the use of the past tense, appeared to make it clear that the relevant time at which the unsecured liabilities were to be ascertained was at some point earlier than the application for early discharge, and thus, logically, at the time when the bankruptcy order was made, the position under section 30B(2)(b) was different, being phrased in the present tense, so as to require consideration of the position at the time the application was made and heard.

20.   Against this, Miss Man submitted that the legislative history of section 30B did not disclose any conscious decision on the part of the legislature to depart from the approach adopted in the Australian legislation. She drew my attention to the Law Reform Commission s Report on Bankruptcy (May 1995) from paragraph 17.62 of which it would appear that its proposals in this respect (which were eventually enacted as section 30B) were intended to be based on the Australian legislation.

21.   She submitted further, that all of the Australian authorities on the interpretation of the Australian legislation were consistent with the view that the relevant point in time at which the unsecured liabilities should be ascertained was when the bankruptcy order was made. However, it seems to me that this is a conclusion that is necessitated by the terms of the Australian legislation, speaking, as it does, in the past tense, and the authorities are thus of little assistance in considering how the Hong Kong legislation should be interpreted.

22.   Miss Man also submitted that the construction proposed by the Official Receiver was more consonant with the rationale of the provision, which was, she suggested, to prevent a bankrupt who had recklessly incurred credit, but who had been able to reach a compromise with his creditors, from seeking an early discharge. However, it seems to me that it is not in every case where a bankrupt has incurred debts that exceed his income to the extent stated that it can be said that he has recklessly incurred credit C in this case, I do not think it possible to say that Ms Lo had necessarily, or even probably, acted recklessly C at the time at which she gave the Mortgage in favour of the Bank, the value of the property might have adequately covered the facility granted to United China, and her liability to the Bank may well have arisen (in part at least) as a result of a subsequent fall in the value of the property mortgaged.

23.   On balance, I am of the view that it is not possible to ignore the difference in the wording of section 30B(2)(b) as compared to section 149Y(1) in the Australian legislation. While it may not have been intended to alter the effect of the provision, it remains necessary to construe the provision as it stands, and the use of the different tense does, in my view, alter the meaning of the provision so as to suggest as a matter of language that the relevant time at which to consider the relationship between the debtor s liabilities and his income in the relevant period is as at the time of the discharge application.

24.   The effect in the present case is that as a result of the accord and satisfaction between Eversense, Ms Lo and the Bank, the liability of Ms Lo to the Bank was extinguished prior to the making of this application, with the consequence that Ms Lo has now no unsecured debts, so that the unsecured debts which she presently has do not exceed 150% of her income in the relevant period, so that the court s jurisdiction to grant an early discharge is not ousted on this basis.

25.   This, however, is not the end of the matter. The Official Receiver also submits that the court s jurisdiction is excluded by the operation of section 30B(2)(c), since Ms Lo had, in her Statement of Affairs, failed to disclose her beneficial interest in the 50% shareholding in Eversense.

26.   Ms Lo admits that she had failed to disclose this in her Statement of Affairs, and Preliminary Examination Questionnaire, but says that this was simply an oversight on her part, being an inadvertent slip.

27.   Miss Man submits that this does not assist Ms Lo, since section 30B(2)(c) is in straightforward terms. The only question for the court s consideration is whether or not there has been a failure to disclose a beneficial interest in any property, and (submits Miss Man) there clearly has been, whatever the reason for it may be.

28.   Again, Mr Chan suggests that the difference in the wording of section 30B(2)(c) as compared to the Australian legislation on which it is based, should lead the court to conclude that section 30B(2)(c) is not engaged. The equivalent Australian provision (section 149Z(1) of the Australian Bankruptcy Act) provides that a bankrupt is disqualified from early discharge if the bankrupt has at any time failed, whether intentionally or not, to disclose to the trustee the bankrupt s beneficial interest in any property.

29.   Mr Chan submits that the omission of the words at any time and whether intentionally or not indicate that section 30B(2)(c) is to be construed less strictly than section 149Z(1) in the Australian legislation would have fallen to be construed, and that to do otherwise would involve reading back into the section the words that have been omitted from it.

30.   Miss Man, however, submits that given that the legislative history does not disclose any intention to depart from the Australian approach, there is no basis for interpreting section 30B(2)(c) any differently, so as to impose a less stringent test on a bankrupt seeking an early discharge under that provision. She submits that unlike the position in relation to section 30B(2)(b), the difference in wording does not call for a different conclusion, since the natural construction of section 30B(2)(c) is apt to cover any failure to disclose a beneficial interest in any property, whatever the reasons for the failure. She also submits that on analysis, it is the interpretation proposed by Mr Chan that requires the reading into the provision of words that are not there, in that the adoption of his proposed interpretation would require the reading in of words such as other than through inadvertence so as to qualify the nature of the failure to disclose that would trigger the section.

31.   Although I was initially attracted to Mr Chan s interpretation of section 30B(2)(c), I am satisfied that Miss Man s arguments are well-founded. It seems to me that giving the words of the subsection in their natural meaning, they do lead to the conclusion for which the Official Receiver contends. Had it been possible to demonstrate from the legislative history that the difference in wording was the result of a decision to depart from the approach of the Australian legislation, the position might have been different, but there is nothing in the legislative history to suggest that this was the case. In these circumstances, I do not think that it is possible to read into the subsection some exception or limitation based on inadvertence of the failure to make disclosure of the asset in question.

32.   It follows that as Ms Lo has failed to disclose a beneficial interest in property, namely the shares held by her in Eversense, she is not entitled to seek her early discharge from bankruptcy pursuant to section 30B. Although Mr Chan submitted that this was contrary to the spirit of the provision, I do not think that it necessarily is C as was observed by the Chief Justice in Re Chan Wing Hing (2006) 9 HKCFAR 545, at paragraph 17 of his judgment, the possibility of early discharge is, as a result of the restrictions imposed by section 30B(2), in practice only available in a very limited number of cases. Unfortunately for Ms Lo, this is not, in my judgment, one of them.

33.   As I have noted, the Official Receiver also drew the court s attention to a number of other respects in which Ms Lo had failed to fully or accurately supply information requested by him in the Preliminary Examination Questionnaire. However, the Official Receiver did not, at the end of the day, submit that such failures should necessarily prevent the court from exercising its discretion in Ms Lo s favour, in the event that the court considered that it was not prevented by section 30B(2)(b) or (c) from granting an order of early discharge. For my part, had I been satisfied that section 30B(2)(c) did not apply in this case, I would, notwithstanding those matters, have been inclined to exercise my discretion in favour of granting the early discharge sought, having regard to the fact that Ms Lo had but one debt, which was incurred in circumstances which do not suggest any rashness or recklessness on her part, which has resulted in Ms Lo losing the mortgaged property, and the balance of which has been settled on terms acceptable to the petitioner, leaving Ms Lo with assets collected by the Official Receiver and no debts to which they should be applied.

34.   However, for the reasons which I have explained, I have concluded that I must, applying section 30B(2)(c), dismiss this application, leaving Ms Lo to receive her automatic discharge in due course, and make an order nisi that the Official Receiver s costs of the application be paid out of Ms Lo s estate in Bankruptcy.