HU YING v. WEI WEN

HCB 2027/2017 and
HCB 2108/2017
(Consolidated)
[2018] HKCFI 2064

HCB 2027/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 2027 OF 2017

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AND

HCB 2108/2017

BANKRUPTCY PROCEEDINGS NO 2108 OF 2017

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(Consolidated pursuant to the Order of the
Honourable Mr Justice Ng dated 5 March 2018)

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J U D G M E N T

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Introduction

1.   This is the hearing of two Bankruptcy Petitions against Hu Ying (“the Debtor”) ordered by the Court to be consolidated.

2.   In HCB 2027/2017 (“the 1^st Petition”), the Petitioner is Wei Wen (“Wen”) who caused a Statutory Demand dated 13 February 2017 (“the 1^st S/D”) to be served on the Debtor for the sum of HK$1,232,654.80 representing taxed costs and interest owing by the Debtor to him arising out of a case in the High Court under HCA 1907/2012 (“the Debt to Wen”).

3.   In HCB 2108/2017 (“the 2^ndPetition”), the Petitioner is a Hong Kong company by the name of Willwin Development (Asia) Co Ltd (“Willwin”) which caused a Statutory Demand also dated 13 February 2017 (“the 2^ndS/D”) to be served on the Debtor for the sum of HK$73,805.96 representing taxed costs and interest owing by the Debtor to it arising out of another case in the High Court under HCMP 2946/2014 (“the Debt to Willwin”).

4.   As at the date of the hearing, with the interest which had accrued, the Debt to Wen had increased to HK$1,355,179.38 and the Debt to Willwin had increased to HK$81,931.

5.   There is no dispute between the parties as to the question of service of the 1^st S/D and the 2^ndS/D.  The Debtor also admits that neither the Debt to Wen nor the Debt to Willwin has been satisfied in any way.

The application to set aside the 1^st S/D

6.   The Debtor made an application to set aside the 1^st S/D on the basis set out below.

7.   The Debtor relies on a Judgment in court proceedings on the Mainland in the Baoan People’s Court under Action No 1013 of 2013 (“the Baoan Court Judgment”) whereby the Baoan Court gave judgment in favour of one Wei Xing (“WX”), the husband of the Debtor and the younger brother of Wen, against a company on the Mainland known as Shenzhen Willwin Technology Co Ltd (“Willwin SZ”) in the sum of RMB 3,449,999.95.

8.   The Debtor alleged that Wen, being the legal representative/‌general manager/‌executive director/‌beneficial owner of Willwin SZ shouldbe personally liable to her husband WX for the judgment sum in the Baoan Court Judgment.

9.   On the abovementioned basis, the Debtor applied to the Court to set aside the 1^st S/D. That application was duly dismissed by Ng J by an Order dated 8 March 2017. In the letter of direction issued by order of the Judge, he said this:

“ In her affirmation in question, the Applicant only claims her husband has a set-off against the sum stated in the statutory demand.  There is no suggestion that the Applicant herself also has a set-off, against the same sum.”

The subsequent conduct and defence of the Debtor

10.   After the dismissal of the application of the Debtor to set asidethe 1^st S/D as referred to above, the Debtor purportedly entered into a Deed of Assignment dated 21 March 2017 with her husband WX whereby WX assigned the Judgment Debt of RMB 3,444,999.95 under the Baoan Court Judgment to the extent of RMB 1,500,000 to her.  On this basis, the Debtor asserts that she has a claim on part of the said Judgment Debt to the extent of RMB 1,500,000.

11.   In defence against the present proceedings, the Debtor further asserts that she has a cross-claim or set-off against Wen to the extent of RMB 1,500,000.

12.   In her Affirmation filed herein on 26 April 2018, the Debtor asserts as follows:

“ 29.   As Wen is the legal statutory representative, general manager and executive director, I verily believe that according to the law of the PRC Wen is actually also personally liable for the sums due owing under the Boan Court Judgment.”

13.   The Debtor’s assertion as set out in paragraph 11 above is the crux of her defence and her only defence in these proceedings.  Mr Pang, Counsel representing the Debtor, plainly admits that the said assertion in paragraph 29 of her Affirmation is not supported by any expert evidence on Mainland law and that the Debtor is not an expert on Mainland law.

14.   It is trite that, if a party wishes to rely on Mainland law in litigation in Hong Kong, any proposition based on Mainland law which he puts forward is actually a question of fact and, therefore, must be supported by legal expert opinion on Mainland law.

15.   In the circumstances, the only defence put forward by the Debtor falls to the ground and the Debtor has absolutely no defence to the two Petitions.

16.   The position is so crystal clear that I do not think that there is anyneed for me to deal with the allegations by the Debtor about not being able to take out from the Baoan Court the judgment sum of RMB3,444,999.95 admittedly paid into that Court by Willwin SZ in satisfaction of the Baoan Court Judgment and the other points raised by the Petitioners regarding a reverse set-off.

Conclusion

17.   In the result, I grant the Petitions by making a usual bankruptcy order against the Debtor with costs against the Debtor.