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2008

RE CHIN KAM CHIU

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Files (2)

67981-EN-2009-10-09

RE CHIN KAM CHIU

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CACV 167/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 167 OF 2008

(ON APPEAL FROM HCB NO. 1043 OF 2006)

----------------------

 Re : CHIN KAM CHIU(formerly known as CHUN KAM CHIU)
 Ex Parte : BANK OF CHINA (HONG KONG) LIMITED (the successor corporation to THE KWANGTUNG PROVINCIAL BANK)

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Before: Hon Tang VP, Cheung JA and Yuen JA in Court

Date of Hearing: 25 September 2009

Date of Judgment: 9 October 2009

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J U D G M E N T

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Hon Tang VP (giving the judgment of the Court):

1.  On 19 April 2006, Mr Chin Kam Chiu (“Mr Chin”) was adjudicated bankrupt in his absence.

2.  He was then serving a term of imprisonment at Pik Uk Prison.

3.  The petition, however, was served on Mr Chin by substituted service.  Substituted service was necessary because whilst in prison, Mr Chin had twice refused personal service of the petition.  Indeed, earlier, a statutory demand was served on him by substituted service.  Mr Chin had also twice refused personal service. 

4.  On 12 June 2007, Messrs Kwan & Chow, solicitors, filed a notice to act for Mr Chin in the bankruptcy proceedings.  On 20 September 2007, Mr Chin applied to annul the bankruptcy order.  The application was heard and dismissed by Poon J on 8 April 2008.  His reasons for doing so were given on 18 April 2008. 

5.  On 19 May 2008, Mr Chin applied for an extension of time to appeal against Poon J’s decision.  That was dismissed by Poon J on 27 May 2008 because the proposed appeal has no merit.  This is the appeal of Mr Chin against the order of Poon J dated 27 May 2008.

6.  Mr Chin, now acting in person, has made two new allegations.  First, he alleged that he was advised by a welfare officer that a body order would be obtained by the petitioner to secure his attendance at the hearing of the bankruptcy petition.  Secondly, that at an earlier hearing which Mr Chin had attended, the petitioners’ solicitors had promised him that a body order would be obtained for his attendance at the hearing of the bankruptcy petition.  Both made in support of his allegation that otherwise he would have applied for a body order to attend the bankruptcy hearing. 

7.  But these are new points which had not been raised before Poon J.  Had they been raised before Poon J they would have been investigated.  That being the case we cannot allow the new points to be taken.

8.  In any event the petitioner had indeed tried to obtain a body order to secure Mr Chin’s attendance on 19 April 2006.  That was refused by Master Ho on the ground that it was up to Mr Chin to decide whether or not to attend.  However, Master Ho directed the petitioner’s solicitors (Messrs Deacons) to write to inform Mr Chin that he should apply to the court for a body order if he wished to attend.  By letter dated 10 April 2006 addressed to Mr Chin at Pik Uk Prison, Mr Chin was told that he should apply to the court for a body order as soon as possible if he wished to attend the hearing on 19 April 2006.  That letter was returned to Messrs Deacons by the Correctional Services Department accompanied by a letter stating that Mr Chin had refused to receive it.  Mr Chin has told us that at the time he was receiving a lot of letters from his “fans” and that is why he refused to accept delivery of the letter.  However, it is clear from the evidence produced that the envelope in which the letter of 10 April 2006 was sent bore the name of the solicitors in English and in Chinese “的近律師行”, so Mr Chin should have realized that it was not a letter from his “fans”.

9.  For the above reasons and for those stated by Poon J in his reasons dated 18 April 2008, we have no doubt that Mr Chin’s proposed appeal has no reasonable prospect of success.  We therefore dismiss his appeal with costs.

10.  The respondent has applied for costs to be summarily assessed.  Their Statement of Costs for Summary Assessment puts their costs at $239,000.  By letter which was received on 2 October 2009, Mr Chin submitted that no more than $90,000 should be awarded.  Mr Chin had earlier paid $150,000 into court as security for costs.  $90,000 is obviously too low.  Having regard to the straightforward nature of this appeal we make a lump sum assessment cost order in the sum of $160,000.

(Robert Tang)
Vice-President
(Peter Cheung)
Justice of Appeal
(Maria Yuen)
Justice of Appeal

The Debtor, in person, present

Mr Russell Coleman, SC, instructed by Messrs Deacons, for the Petitioner

62396-EN-2008-08-26

CHIN KAM CHIU v. BANK OF CHINA (HONG KONG) LTD

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CACV 167/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 167 OF 2008

(ON APPEAL FROM HCB nO. 1043 OF 2006)

_______________________

BETWEEN

 

 chin kam chiu
(formerly known as Chun Kam Chiu
秦錦釗)
Debtor
 and 
 bank of china (hong kong) Limited
(the successor corporation to THE KWANGTUNG PROVINCIAL BANK)
Petitioner

______________________

Before:  Hon Yeung JA in Chambers (Open to Public)

Date of Hearing:  19 August 2008

Date of Decision:  19 August 2008

Date of Handing Down Reasons for Decision: 26 August 2008

 

____________________________

reasons for decision

____________________________

 

1.  On 19 August 2008, I ordered the respondent, Chin Kam Chiu, who did not attend the hearing, to provide security for the applicant’s costs of the appeal. These are the reasons.

2.  On 18 November 2005, the applicant, Bank of China (HK) Ltd, served on the respondent a Statutory Demand for unpaid judgment debts of about $6.6 million and US$ 3.76 million, which was followed by a Bankruptcy Petition on 29 March 2006, served by way of substituted service.

3.  The respondent did not appear at the hearing of the petition and a bankruptcy order was made against him. The total proofs of debt against the respondent exceeded $2.2 billion. The respondent sought, unsuccessfully, to annul the bankruptcy order.

4.  The respondent’s attempt to appeal against the dismissal of his annulment application failed, partly because he was out of time. He then sought an extension of time to appeal.

5.  On 27 May 2008, Poon J dismissed the respondent’s application for an extension of time to appeal mainly due to a complete lack of merits.

6.  The respondent then appealed against Poon J’s order, leading to the present application by the applicant for security of costs of the appeal.

7.  The applicant contended that the respondent is impecunious by reason of the bankruptcy order and there is no reason not to order him to furnish security for costs of the appeal.

8.  Order 59 rule 10(5) gives the court the power to order security of costs against an appellant where there are special circumstances rendering it just to do so.

9.  The established categories of “special circumstances” include cases where the appellant, through insolvency or impecuniosity, will be unable to pay the costs of the appeal when the appeal fails, and where the respondent is likely to encounter undue delay or be put to undue expense in enforcing any costs order against the appellant.

10.  I have considered the applicant’s allegations as revealed in the affirmation filed in support of the application. I have also considered the respondent’s case as set out in a letter dated 18 August 2008 submitted by Miss Leung Wai Chun on behalf of the respondent.

11.  The impecuniosity of the respondent is not disputed as he had been declared a bankrupt. In my view, the respondent is unlikely to be able to pay the costs of the appeal when it fails and the applicant is likely to encounter undue delay or be put to undue expense in enforcing any costs order against the respondent.

12.  I have also considered the merits of the respondent’s proposed appeal. It is not necessary to form any definite view on the issue, but I am not satisfied that there is sufficient reason to exercise my discretion not to order him to furnish security for the applicant’s costs of the appeal.

13.  Having examined the applicant’s skeleton bill of costs, I am satisfied that a proper amount of the security for costs is $150,000. The issues involved in the proposed appeal are short and simple.

14.  I therefore made the following orders:

1.   The respondent is to furnish security for the applicant’s costs of the appeal in the sum of $150,000 by making cash payment into court within 28 days of the service of this order;

2.   Until the respondent provides the security for costs aforesaid, all proceedings in the appeal will be stayed;

3.   If the respondent fails to provide the security for costs within 28 days, the appeal shall be dismissed without further order with costs of the appeal to the applicant to be taxed if not agreed; and

4.   If the respondent complies with the order for security of costs, costs of this application to be in the cause of the appeal.

 (W Yeung)
Justice of Appeal
 

Debtor: In person.

Mr Russell Coleman, SC instructed by Messrs Deacons for the Petitioner.