CINEVISION TOP CHOICE PRODUCTIONS LTD v. LUI YUI CHIU LOUIS

HCB 4571/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

IN BANKRUPTCY

NO. 4571 OF 2007

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D E C I S I O N

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1. This is a creditor’s bankruptcy petition presented by Cinevision Top Choice Productions Limited against Mr Louis Lui.  The petition is based on a judgment debt of slightly over HK$1 million.

2.  This is the sixth occasion on which this petition has been before the courts, having been before a Master on three occasions and before myself on 8 October, at which time the debtor did not appear on time and a bankruptcy order was in fact made in his absence.  The Debtor appeared later with an explanation for his failure to appear on time, and I accordingly rescinded the bankruptcy order to enable the matter to be dealt with the following week.

3. The following week the matter came back before Chu J, when she made it clear in no uncertain terms to the Debtor that should he wish to oppose the petition, whether on the basis of any dispute as to the underlying debt, as to which there did not appear to be any, or on the basis that he was in fact able to make payment or had funds with which to pay the debt, it having been apparently suggested by the Debtor that his funds were currently frozen and outside his control because of certain proceedings involving the ICAC, he should file an affirmation, exhibiting any supporting documentation that he could put forward, to establish his case.  Chu J also made it clear to the Debtor that no further adjournments would be granted.

4. However, the Debtor has not put forward any affirmation or documentation to make out his case.  He has said today that he has had some difficulties in obtaining documentation.  However, that does not seem to me to provide any explanation or excuse for his failure to file any affirmation at all to set out his position, notwithstanding that it had been made clear to him that he should do so if he wished to resist the making of a bankruptcy order against him.

5. Given that it was made very clear to the Debtor on the last occasion that this would be his final opportunity to put forward any evidence in opposition to the making of a bankruptcy order, and that he has still produced no evidence or documentation in support of his case, I think that the appropriate course would be to make the usual bankruptcy order with costs.

6. It should, I think, be borne in mind that a debtor is unable to pay his debts both when he has insufficient funds to pay them in the sense of having insufficient assets out of which to meet his liabilities and also where he is unable to pay them as and when they fall due.

7. It seems quite clear at this stage that the Debtor is unable to pay the debt that is undoubtedly due, and in the circumstances, I think that the appropriate course would be to make the bankruptcy order that is sought.