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CACV 153/2005
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 153 OF 2005
(ON APPEAL FROM hcb 2084 nO. OF 2000)
_______________________
RE: CHAN WING HING, a bankrupt
EXPARTE: THE OFFICIAL RECEIVER AND TRUSTEE IN BANKRUPTCY OF CHAN WING HING, a bankrupt
________________________
CACV 154/2005
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 154 OF 2005
(ON APPEAL FROM hcb 2848 nO. OF 2000)
_______________________ RE: LIN HAI SAN, a bankrupt
EXPARTE: THE OFFICIAL RECEIVER AND TRUSTEE IN BANKRUPTCY OF LIN HAI SAN, a bankrupt
________________________
Before: Hon Yeung JA, Yuen JA and Waung J in Court
Date of Hearing: 7 September 2005
Date of Judgment: 16 January 2006
___________________
J U D G M E N T
____________________
Hon Yeung JA:
1. The issue involved in both appeals (CACV 153 and 154 of 2005) is identical and it turns on the proper interpretation of s 30A(10)(ii) of the Bankruptcy Ordinance (“the Ordinance”).
2. The respondents – Chan Wing Hing (Chan) in CACV 153 of 2005 and Lai Hai San (Lin) in CACV 154 of 2005, were both first-time bankrupts. They were in Hong Kong on 4 October 2000 and 1 November 2000 when the respective bankruptcy orders against them were made.
3. After attending two interviews on 23 October 2000 and 21 March 2001, Chan did not contact the Official Receiver (“the OR”) again despite having been given a booklet listing out his duties as a bankrupt.
4. Immigration records indicated that Chan had, since the making of the bankruptcy order, made frequent trips to the Mainland.
5. On most occasions, Chan was absent for less than 24 hours. On other occasions, he was away from Hong Kong for no more than a few days.
6. Chan left Hong Kong on 19 July 2004 and there was no record of his return. His wife said he was being detained in Shenzhen.
7. Lin only attended one interview with the OR on 7 May 2001 and failed to further contact the OR.
8. Lin gave his last known address in Swatow, on the Mainland. His immigration records also indicated that he made frequent trips to the Mainland since 1 November 2000.
9. Lin’s trips to the Mainland mostly lasted for less than 24 hours. There were occasions when Lin was away for a few days to a week and on two occasions, he was away for 22 days and 11 days respectively.
10. S 30A (1) and (2) of the Ordinance provide that a first-time bankrupt will be automatically discharged from bankruptcy after the expiration of 4 years from the commencement of his bankruptcy. The 4 years can be extended for a maximum period of another 4 years under s 30A(3) upon application by the trustee or any creditor on grounds set out in s 30A(4).
11. S 30A(10) of the Ordinance then provides:
“Notwithstanding subsection (1) to (3), where a bankrupt –
(a) has, before the commencement of the bankruptcy, left Hong Kong and has not returned to Hong Kong, the relevant period under subsection (1) shall not commence to run until such time as he returns to Hong Kong and notifies the trustee of his return;
(b) after the commencement of his bankruptcy –
(i) leaves Hong Kong without notifying the trustee of his itinerary and where he can be contacted; or
(ii) fails to return to Hong Kong on a date or within a period specified by the trustee,
the relevant period under subsection (1) shall not continue to run during the period he is absent from Hong Kong and until he notifies the trustee of his return.”
12. The OR has apparently adopted an “internal administrative decision” to treat the absence of at least 3 consecutive months from Hong Kong (but not less than that) as the threshold for triggering the operation of s 30A (10).
13. The OR applied under S 30A(3) of the Ordinance for an extension of the 4-year period so that the bankruptcy orders against Chan and Lin would not be automatically discharged. The grounds of objection relied on by the OR were those set out in s 30A(4)(d) and (h) respectively.
14. The summonses taken out by the OR were strangely worded. They sought orders to the effect that the relevant period under s 30A(1) and (2)(a) shall cease to run for such period as the court may think fit that the bankrupt shall be discharged on a date not later than eight years from the dates when the bankruptcy orders were made (Emphasis added). These words appear to track the language of s 30A(a) but their effect here is discussed below.
15. The OR’s summonses gave rise to the preliminary issue (taken by the court on its own motion) as to whether s 30A(10)(b) of the Ordinance applied. If it did, the OR’s application was considered by the Master to be premature as, upon the absence of Chan and Lin from Hong Kong, the 4-year period under s 30A(2)(a) should be extended and would therefore not have expired four years after the bankruptcy orders were made. An extension of the four years under s 30A(3) would of course mean that Chan and Lin might not be discharged eight years after their bankruptcy orders were made.
16. The preliminary issue went before Master S Kwang on 3 February 2005 for argument. Chan and Lin were absent at the hearing.
17. Master Kwang disagreed with the OR’s suggestion that the true meaning of the words “leave Hong Kong” should be “to go away from Hong Kong permanently”.
18. Master Kwang concluded that a bankrupt, under s 30A(10)(b)(i) of the Ordinance, “is required to notify the trustee his itinerary and where he can be contacted if he intends to leave Hong Kong for whatever period; failing which, his period of bankruptcy will cease to run until the bankrupt physically returns to Hong Kong and notifies the trustee of his return”.
19. In the circumstances, Master Kwang concluded that the OR’s applications were premature as the four-year period under s 30A(2)(a) had not expired. Master Kwang therefore dismissed the OR’s applications.
20. It was against the decision of Master Kwang that the OR appealed. Chan appeared at the appeal and Lin remained absent.
21. In support of the appeal, the OR applied for and was granted leave to adduce further evidence to the effect that there was a very large number of undischarged bankrupts and therefore, the issue in question was likely to affect many people.
22. Mr Beresford, on behalf of the OR, primarily suggested that s 30A(10) “is not jurisdictional and is intended only to serve s 30A(4)(e) and (g) and is only directory”. Therefore, the trustee could waive his right under s 30A(10).
23. He further suggested that the maximum period of bankruptcy was eight years (i.e. the four years under ss 2 and the further four years under ss 3).
24. In the circumstances, irrespective of the true meaning of s 30A(10)(b), the Master should have made an appropriate declaration instead of dismissing the OR’s applications on the ground that they were premature.
25. Mr Beresford emphasized that an application under s 30A(6) to object to the automatic discharge of a bankrupt must be made before the expiration of the relevant period and not afterward. Hence every such application could be said to be “premature”.
26. In so far as Master Kwang held that the applications should be dismissed, it would have the effect of undermining the statutory objective of ensuring the rehabilitation of bankrupts through the right to an automatic discharge and render it uncertain with other consequential effect.
27. Mr Beresford argued that in the context of the Ordinance, s 30A(10)(b) was only engaged if by leaving Hong Kong, the bankrupt could not be contacted by the trustee within a reasonable time for the purpose of a request to return to Hong Kong and thus had no application to bankrupts who commuted between Hong Kong and the Mainland.
28. The dictionary meaning of the word “leave” was relied on and Mr Beresford suggested that the word could denote an element of permanency.
29. In any event, the word was at least ambiguous and therefore in construing s 30A(10)(b) of the Ordinance, the court should have regard to other sub-sections which suggested that s 30A(10)(b) was only engaged if, by leaving Hong Kong, the bankrupt could not be contacted by the trustee within a reasonable time for the purpose of a request to return to Hong Kong in order to comply with his obligations under the Ordinance.
30. Mr Beresford referred to the legislative history and contended that the main purpose of enacting s 30A(10) of the Ordinance was to penalize bankrupts who “abscond”, “flee” or “stay away from Hong Kong in order to avoid their obligations under the Ordinance”. Hence, it served no other purpose than as an aid to s 30A(4)(e) when departure from Hong Kong and a failure to return at the trustee’s request was used as a ground to extend the relevant period.
31. Mr Beresford suggested that a short trip away from Hong Kong, be it for work or for pleasure, did not constitute “leaving” Hong Kong and therefore s 30A(10) did not bite.
32. It was emphasized that habitual commuting between Hong Kong and the Mainland was a common occurrence for a lot of people living in Hong Kong, and was not evidence of absconding, fleeing or staying away from Hong Kong in order to avoid the obligations under the Ordinance.
33. Mr Beresford also suggested that requiring a bankrupt to notify the trustee of his itinerary every time he left Hong Kong would be inconsistent with the bankrupt’s fundamental rights under the Basic Law and the Hong Kong Bill of Rights of freedom to travel. He further suggested that an indiscriminate and indeterminate restriction was unnecessary to protect the rights of creditors where there was no objection to discharge, or alternatively the possible sanctions under s 30A(10) were disproportionate means of protecting the rights of such creditors.
34. Mr Beresford submitted that if every transient departure from Hong Kong triggered the operation of s 30A(10)(b), many bankrupts would not be entitled to the automatic discharge despite the expiration of the four-year period and the legislative intent for the rehabilitation of co-operative bankrupts would be defeated.
35. In the circumstances, Mr Beresford submitted that the OR’s internal administrative decision to treat a bankrupt’s absence from Hong Kong of at least three consecutive months as the threshold for triggering the operation of s 30A(10)(b) should be endorsed.
36. I do not agree with the submission that s 30A(10) was intended only to serve s 30A(4)(e) and/or (g). S 30A(10)(b) bites if the bankrupt(i) leaves Hong Kong without notifying the trustee of his itinerary and where he can be contacted; or (ii) fails to return to Hong Kong on a date or within a period specified by the trustee.
37. There is no reason to regard s 30A(4)(e) as the primary obligation and s 30A(10)(b) as only ancillary to it.
38. Firstly, if a bankrupt fails to comply with s 30A(10)(b)(i) by informing the trustee of his itinerary and where he can be contacted, it is unlikely that the OR or the trustee could himself locate him so as to request the bankrupt’s immediate return under s 30A(4)(e). S 30A(10)(b)(i) must therefore be a stand-alone obligation, not pegged to s 30A(4)(e).
39. Secondly, s 30A(4)(e) deals with a situation where the bankrupt has departed from Hong Kong and has failed forthwith to return to Hong Kong following a request to do so by the OR or the trustee; whereas the failure to return under s 30A(10)(b) refers to a bankrupt who has notified the trustee of his itinerary and where he can be contacted, but fails to return on a date or within a period specified by the trustee.
40. The situations envisaged under s 30A(10)(b)(ii) and s 30A(4)(e) are (or at least, may be) different.
41. Under s 30A(10)(b), a bankrupt who leaves Hong Kong must notify the trustee. The trustee may there and then consider it necessary to prescribe a date or a period for the bankrupt to return. If the bankrupt fails to notify or fails to return, the sub-section bites.
42. On the other hand, upon being notified by the bankrupt of his leaving Hong Kong, the trustee may not at that time consider it necessary to prescribe a date or a period for the bankrupt to return.
43. If subsequent to the bankrupt’s departure, it becomes necessary for him to return, the OR or the trustee, with the information supplied by the bankrupt under s 30A(10), can request the bankrupt to return. If the bankrupt fails to return forthwith, s 30A(4)(e) bites.
44. As for s 30A (4)(g), I fail to see its relevance to the issue in question. Whist s 136 refers to the bankrupt’s “quitting” Hong Kong, it is a quitting with certain specified intent as opposed to a “departure” under s 30A(4)(e) and a “leaving” under s 30A(10)(b).
45. I do not agree with Mr Beresford’s argument that the maximum period of bankruptcy in any event is eight years. S 30A(2) stipulates a relevant period of four years and s 30A(3) permits the court to order such period to cease to run for a maximum period of four years.
46. However, s 30A(10) starts off with “Not withstanding subsections (1) to (3)” and clearly provides that the relevant period under s 30A(1) shall not continue to run during the period when the bankrupt is absent from Hong Kong and until he notifies the trustee of his return.
47. In the circumstances, the four-year period under s 30A(2) can be extended to an indeterminate period depending on the extent of the impact under s 30A(10). Such an approach is consistent with The Law Reform Commission of Hong Kong’s Report on Bankruptcy, paragraph 17.49.
48. “Leave” is a simple English word and has no other meaning than its ordinary signification of “going away from”. The OR’s initial suggestion that “leave” denotes a sense of permanency is to do violence to the language.
49. I accept, on the other hand, that the word does not by itself indicate the period during which a person is away from a place, it can therefore mean “going away temporarily or permanently or something in between”.
50. However, the use of the word “itinerary” negates any suggestion that “leaving Hong Kong” contains any element of permanence.
51. “Itinerary” – a travel plan, a proposed route – suggests “on the move” and has no signification of permanence, a suggestion that Mr Beresford seems to agree with.
52. In any event, “permanent” or “temporary” are not words susceptible to any precise delineation. It is questionable that the Legislature would have intended “leaving Hong Kong” to mean either “departing permanently” or “departing temporarily” and thereby created uncertainty and confusion.
53. In my view, the use of the word “absent” in s 30A(10)(b) also negates any suggestion of “absconding”, “fleeing” or “staying away from Hong Kong in order to avoid their obligations under the Ordinance”.
54. S 30A(10)(b), independently of s 30A(4), clearly has a purpose to serve as reflected in the plain meaning of the words used. The intention is to assist the OR or trustee in the administration of the estate, by making sure that he is able to locate the bankrupt, whose co-operation in the winding-up of his affairs is often needed.
55. Mr Beresford emphasizes that Master Kwang’s interpretation of s 30A(10)(b) would be inconsistent with the bankrupt’s right of freedom to travel.
56. Article 31 of the Basic Law states in part that Hong Kong residents shall have the freedom to travel and to enter or leave Hong Kong.
57. The freedom to travel is guaranteed under Article 12 of the International Covenant on Civil and Political Rights (“the ICCPR”), which applies in Hong Kong under Article 39 of the Basic Law:-
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.”
58. The freedom to travel is also guaranteed under Article 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383, which reproduces in identical terms Article 12 of the ICCPR, including the stipulated restrictions.
59. The fundamental rights and freedoms guaranteed under the Basic Law and the Bill of Rights must be jealously guarded and be given a purposive and generous meaning as observed by the Chief Justice in Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4:
“It is generally accepted that in interpretation of a constitution such as the Basic Law a purposive approach is to be applied… …the constitutional guarantees for the freedoms that lie at the heart of Hong Kong’s separate system. The courts should give a generous interpretation to the provisions in Chapter III that contain these constitutional guarantees in order to give to Hong Kong residents the full measure of fundamental rights and freedom so constitutionally guaranteed.”
60. However, the fundamental freedoms under the Basic Law and the Bill of Rights are not absolute. Article 39 of the Basic Law permits restrictions if they are prescribed by law; and if they do not contravene the terms of ICCPR.
61. Article 12 of ICCPR permits restrictions if they are provided by law and are necessary to protect…the rights and freedoms of others… Such restrictions are reproduced in Article 8 of the Bill of Rights.
62. The Privy Council and the Hong Kong courts have held that the word “necessary” in this test should be given its ordinary meaning and that no assistance is to be gained by substituting for “necessary” a phrase such as “pressing social need” (See Ming Pao Newspapers Ltd v AG [1996] AC 907, Wong Yeung Ng v Secretary for Justice [1999] 2 HKLRD 293.
63. The restrictions to the freedom of travel reflect the need to balance the fundamental rights of an individual against society’s interest as a whole.
64. The Preamble to the ICCPR contains inter alia: “Realizing that the individual, having the duties to other individuals and to the community to which he belong”. The courts must therefore recognize the need for a fair balance between the general interest of the community and the personal rights of the individual.
65. Under s 30A(10) of the Ordinance, a bankrupt who leaves Hong Kong without complying with the requisite conditions shall have the period of bankruptcy lengthened. Such provision is a clear restriction against the freedom to travel.
66. The question is whether such restriction, prescribed by law, is necessary to protect the rights and freedoms of others, having regard to the duties of the bankrupt to other individuals and the community to which he belongs.
67. A bankruptcy order will only be made against a person if he is unable to repay his debt in full or at all. In order to ensure that the bankrupt’s creditors will be adequately protected, the trustee and the OR are obliged under the Ordinance and the rules made therein to carry out various duties with regards to the bankrupt’s conduct and the management of his estate.
68. Such duties can only be properly carried out if the trustee and the OR know at least where to contact the bankrupt. The duties imposed on a bankrupt under s 30A(10) are not onerous at all. All he has to do is to notify the trustee of his itinerary and where he can be contacted when he leaves Hong Kong and his return. As Chan frankly admitted in the course of the appeal, those requirements were easy to comply with.
69. Ms Linda Chan, as amicus curiae, suggested that the operation of s 30A(10) could have a very harsh effect. She took, as an example, a bankrupt who left Hong Kong and returned the same day without notifying the trustee, in which event, until the bankrupt notified the trustee of his return, the relevant period under s 30A(2) would be suspended.
70. Ms Chan suggested that such possible dire consequence arising from the implementation of s 30A(10) indicated a lack of adequate and effective safeguards to ensure minimum impairment of the freedom to travel and therefore might negate the notion of necessity.
71. It may not be helpful to refer to extreme examples. However, it is important to bear in mind that the primary restriction on the freedom to travel is simply the need to inform the trustee of the itinerary, the place of contact and the return. The possible “harsh” effect only visits if the bankrupt fails to observe the primary restriction.
72. I am not persuaded that the impact of s 30A(10) is disproportionate to the need to protect the rights of other individuals in our community.
73. The words used in s 30A(10) are clear. There is a clear and legitimate purpose to serve. It should be given full effect.
74. In my view, Master Kwang was right in ruling that a bankrupt who wishes to leave Hong Kong for whatever period, must notify the trustee of his itinerary and where he can be contacted, otherwise the relevant period shall not continue to run.
75. Any other interpretation will lead to ambiguity and possibly unnecessary argument. The suggestion of any “unwanted consequences” arising out of such interpretation is also unfounded.
76. However, s 30A talks about years in so far the period of bankruptcy is concerned and the suspension of such period. It is doubtful if a period of less than one day is contemplated, a view shared by both Mr Beresford and Ms Chan.
77. In the circumstances, I am of the view that in determining the extension of the relevant period by reason of the bankrupt’s absence from Hong Kong, only a period exceeding a day should count. A period of less than a day should not trigger the operation of s 30A(10)(b).
78. I also agree with Mr Beresford’s suggestion that irrespective of the true meaning of s 30A(10)(b), the court is entitled to order the relevant period under s 30A(2) to be extended by reasons of the grounds set out in s 30A(4)(d) and (h).
79. Under s 30A(6), an objection to the discharge of a bankrupt shall be made not less than 14 days before the expiration of the relevant period.
80. The OR had certainly presented to the court a case, which on its face, justified the extension of the 4-year period under s 30A(2).
81. Although the use of the word “may” in s 30A(3) indicates a discretion, the discretion must be exercised judicially. In my view, the summary dismissal of the application by reason simply of the fact that the 4-year period had not expired was not a proper exercise of discretion.
82. In the circumstances, I would allow the appeal and set aside the order of Master Kwang. The case is remitted back to another master to determine the period of absence (i.e. the aggregate period of dates of absence exceeding a day) and then the extension of the relevant period under s 30A(2) should such extension be considered appropriate.
Hon Yuen JA:
83. I agree with the judgment of Yeung JA. I would only like to add the following views.
84. The new bankruptcy regime provides for automatic discharge from bankruptcy after a period of years (subject to extensions which I shall discuss later). "Automatic discharge", i.e. discharge upon the effluxion of that period of years, was obviously desirable from a rehabilitation point of view, but on the other hand there was the need to ensure that bankrupts would cooperate with the trustee during that period in the administration of his estate.
85. The threat of an extension to the bankruptcy period provides a powerful disincentive to a bankrupt who might otherwise be inclined to ignore the trustee’s attempts to obtain his cooperation.
86. Put in everyday language, there are 2 situations where the bankruptcy period is extended.
(1) The first is pursuant to a court order, on an application to extend made by a creditor or the trustee under s.30A(3), on grounds set out in s.30A(4).
(2) The second is where the bankrupt has failed to comply with the requirements in s.30A(10).
Situation (1)
87. In the case of situation (1), the onus lies on the creditor or trustee to prove that grounds exist to extend the period. And even when grounds are proven, the decision whether to extend remains at the discretion of the court. There is hence an element of uncertainty for the trustee or creditor, and these applications of course involve costs which a trustee may not wish to risk (or in the case of a creditor, further risk in addition to sums that the bankrupt owed him).
88. It is therefore likely that across a spectrum of degrees of lack of cooperation from bankrupts, it will only be in the most egregious cases that a trustee or creditor would risk additional costs in order to make an application to extend.
Situation (2)
89. However in dealing with the bankrupt’s estate, a trustee frequently needs his input, and to obtain his input in any situation, the first step is to have access to him. It was obviously with a view to ensuring that primary step is available to the trustee that the legislature enacted s.30A(10).
90. On a plain literal meaning of the words used, there can be no doubt that s.30A(10) operates separately and independently from situation (1) which I have earlier described. The subsection starts with the words "notwithstanding subsection (1) to (3)".
91. The purpose of s.30A(10) is clear and legitimate - it is a means to ensure that bankrupts stay within the "radar" of the trustee, so that the trustee could if required obtain the bankrupt’s cooperation in the administration of his estate. I do not consider that the word "leaves" indicates that the subsection applies only when there is a permanent departure. The reference to an "itinerary" suggests that it would also apply to someone who is travelling.
92. The operation of s.30A(10)(b) is simple and lies completely within the hands of the bankrupt - for para. (i), he has only to notify the trustee of his itinerary and his place of contact; for para. (ii), he has only to return to Hong Kong on the specified date or period. These are not onerous duties.
93. For para. (i), notice may be given in any form (even orally). For a bankrupt who is a frequent and regular traveller, one notice may be given to apply until further notice.
94. For para. (ii), a trustee would not specify a date or period for a bankrupt to return to Hong Kong unless there was business that the trustee required the bankrupt to attend to (such as court proceedings involving his debtors). Trustees are required by law to act reasonably (s.84 Bankruptcy Ordinance). Any bankrupt aggrieved by an unreasonable act of the trustee (e.g. requiring the bankrupt to return on a date that the bankrupt cannot reasonably make) can appeal to the court, and the court may confirm, reverse or modify the trustee’s decision and make such order as it thinks just (s.83 Bankruptcy Ordinance).
95. The extreme example has been given of the bankrupt who leaves Hong Kong for a weekend (presumably without having given the trustee his itinerary and place of contact) but who fails to notify the trustee of his return for 1 year. It was suggested that in that case his bankruptcy period would still be extended for 1 year. Such extreme examples are unhelpful, and to be realistic, unlikely because if the bankrupt returned after the brief trip and maintained contact with the trustee, it would be unlikely that the trustee would ever get to know about the brief period of absence unless events made it necessary for him to check the bankrupt’s travel documents (and even then, the period of extension would just be the period between the bankrupt’s departure and the next contact he made with the trustee in Hong Kong). But even if the result postulated were to ensue, the bankrupt could only have himself to blame for having failed to take the simple step of telling the trustee about his trip and place of contact. (I would add that if he had told the trustee that he would be away for a certain period, say the weekend, it would not be necessary for him to notify the trustee of his return).
96. To place the responsibility of accessibility on the bankrupt, there is no discretion involved in the period of extension. The use of mandatory language in s.30A(10), especially when compared with the discretionary language in situation (1), makes it clear that the legislature intended that neither the OR nor the trustee (if a person other than the OR) nor the creditors nor the court has any discretion in the matter. Where there is no discretion, there can be no waiver on the part of the OR.
97. The irony of the situation is that s.30A(10) was obviously intended to assist the trustee in the administration of the estate by ensuring that he can access the bankrupt and obtain his assistance in Hong Kong when needed, and yet the OR’s complaint is of the administrative burden that he says s.30A(10)(b) poses on his office. The courts are aware of the substantial workload borne by the OR’s office as a result of the economic downturn in the past few years, but I have to say that I am surprised that the OR has imported his internal administrative decision of a threshold period of 3 months into the operation of s.30A(1)(b) without first making an application to the court for guidance (e.g. under rule 158 of the Bankruptcy Rules). If the operation of the law imposes an administrative burden which cannot be overcome, the proper course would be to invite the legislature to consider passing an amendment, but I am afraid I do not see how the clear words of the law can be modified by the use of an internal administrative device.
98. Finally I would add that I do not think that s.30A(10)(i) would be applicable to a bankrupt who leaves Hong Kong but returns on the same day. The period of bankruptcy is from one date to another date a number of years hence. Where a bankrupt leaves Hong Kong but returns on the same day (meaning the same calendar date), he leaves Hong Kong for only a fraction of a day, and there is nothing in the Ordinance that operates to extend the bankruptcy period for a fraction of a day.
Waung J:
99. I agree with the judgment of Yeung JA and I concur in the views of Yuen JA.
(Wally Yeung)
Justice of Appeal |
(Maria Yuen)
Justice of Appeal |
(William Waung)
Judge of the Court of First Instance |
Mr Roger Beresford for the Official Receiver
Respondent in CACV 153/2005: Chan Wing Hing, in person
Respondent in CACV 154/2005: Lin Hai San, in person (absent)
Ms Linda Chan as amicus curiae
Appeal by the Official Receiver to the Court of Final Appeal. Appeal allowed. Please refer to FACV7/2006 dated 20 July 2006.
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