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[English Translation – 英譯本]
HCB 3394/2005
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
BANKRUPTCY PROCEEDINGS NO. 3394 OF 2005
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IN THE MATTER OF Ku Chu Keung (顧主強) (a debtor)
and
IN THE MATTER OF an ex parte application by DBS Bank (Hong Kong) Limited formerly t/a Dao Heng Bank Limited (a creditor)
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Before: Deputy High Court Judge L.Chan in Court
Dates of Hearing: 25 January, 25 May, 29 May and 9 June 2006
Date of Judgment: 12 June 2006
Date of Written Judgment: 12 June 2006
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JUDGMENT
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1. The Respondent (“Mr Ku”) once owned a credit card issued by the Petitioner (“the Bank”). The Bank claimed that there were outstanding balances in Mr Ku’s credit card account, but this was denied by Mr Ku. The Bank therefore commenced proceedings against Mr Ku in the District Court (DCCJ 209/2003) for the recovery of the outstanding sums.
2. Mr Ku applied to the District Court for an order requiring the Bank to supply further and better particulars of 24 items in the Statement of Claim. On 17 June 2004, having heard the application, a Master of the District Court dismissed the application and ordered Mr Ku to immediately pay $24,300 being the Bank’s costs. Mr Ku failed to comply with the order.
3. The solicitor for the Bank said that he served a statutory demand on Mr Ku on 17 January 2005 outside the ground floor entrance to the District Court building, but Mr Ku still failed to pay any costs. On 5 May 2005, therefore, the Bank issued the present bankruptcy petition against Mr Ku.
Reasons for opposition
4. Mr Ku has put forward a number of reasons for opposing the petition. The first reason, which was raised in his affirmation dated 28 June 2005, is that the Bank has not served a statutory demand on him in accordance with Section 6A(1)(a) of the Bankruptcy Ordinance. The English version of Section 6A(1)(a) reads as follows:
6A. (1) For the purposes of section 6(2)(c), the debtor appears to be unable to pay a debt if, but only if, the debt is payable immediately and either ―
(a) the petitioning creditor to whom the debt is owed has served on the debtor a demand (known as ‘the statutory demand’) in the prescribed form requiring him to pay the debt or to secure or compound for it to the satisfaction of the creditor, at least 3 weeks have elapsed since the demand was served and the demand has been neither complied with nor set aside in accordance with the rules;
(The section also stipulates other conditions which, being irrelevant to the present case, will not be discussed here.)
5. Mr Ku said that he had no recollection of having received any statutory demand from any employee of the solicitors firm acting for the Bank at the ground floor entrance to the District Court building on 17 January 2005.
6. The second reason advanced by Mr Ku, as stated in his first supplemental affirmation dated 12 August 2005, is that he was not domiciled in Hong Kong during the 3 years preceding 5 May 2005 and hence did not fall within Section 4(1)(a) of the Bankruptcy Ordinance, and therefore the Bank could not present a bankruptcy petition against him pursuant to Section 3(1)(a) of the Ordinance.
7. Mr Ku said he had on 28 November 2001 surrendered the two properties that related to him ― Flat E, 2/F, Champagne Court, 16 Kimberley Road, Tsimshatsui, Kowloon and Flat A, 10/F, Austin Tower, 15A Austin Road, Tsimshatsui, Kowloon ― to the solicitors for Bank of China (Hong Kong) Limited. He further said he was forced to leave Hong Kong before 26 June 2001 or so and was not ordinarily resident in Hong Kong during the 3 years preceding 5 May 2005. He also claimed that he did not have a place of residence in Hong Kong and that he had ceased his business, namely Ku’s Fur Company Limited, before 4 May 2005. Therefore, he argued, Section 4(1)(c)(i) and (ii) of the Bankruptcy Ordinance did not apply to him.
8. The English version of Sections 3(1)(a), 4(1)(a) and (c) and 4(2) of the Ordinance reads as follows:
3. (1) A petition for a bankruptcy order to be made against a debtor may be presented to the court ―
(a) by one of the debtor’s creditors or jointly by more than one of them;
…
4. (1) A bankruptcy petition shall not be presented to the court under section 3(1)(a) or (b) unless the debtor ―
(a) is domiciled in Hong Kong;
(b) [irrelevant to these proceedings]; or
(c) at any time in the period of 3 years ending with that day ―
(i) has been ordinarily resident, or has had a place of residence, in Hong Kong; or
(ii) has carried on business in Hong Kong.
(2) The reference in subsection (1)(c) to a debtor carrying on business includes ―
(a) the carrying on of business by a firm or partnership of which the debtor is a member; and
(b) the carrying on of business by an agent or manager for the debtor or for such a firm or partnership.
9. The third reason is set out in a written submission that Mr Ku made under oath on 21 January 2006. Attached to the submission is a copy of a letter from Mr Ku to the solicitors for the Bank, in which he suggested paying off the debt by instalments. Mr Ku said that the Bank refused to accept Mr Ku’s suggestion for the reason that it was unsecured, and therefore, by virtue of Section 6D of the Bankruptcy Ordinance, this Court cannot now make a bankruptcy order against him.
10. The English version of the relevant provisions of Section 6D reads as follows:
6D. (1) The court shall not make a bankruptcy order on a creditor’s petition unless it is satisfied that the debt, or one of the debts, in respect of which the petition was presented is either ―
(a) a debt which, having been payable at the date of the petition or having since become payable, has been neither paid nor secured nor compounded for; or
(b) a debt which the debtor has no reasonable prospect of being able to pay when it falls due.
(3) The court may dismiss the petition if it is satisfied that the debtor is able to pay all his debts or is satisfied ―
(a) that the debtor has made an offer to secure or compound for a debt in respect of which the petition is presented;
(b) that the acceptance of that offer would have required the dismissal of the petition; and
(c) that the offer has been unreasonably refused,
and, in determining for the purposes of this subsection whether the debtor is able to pay all his debts, the court shall take into account his contingent and prospective liabilities.
11. Furthermore, in a Reply to the Fifth Affirmation of Wong Shing that he made on 27 August 2005, Mr Ku reiterated that he did not reside in Hong Kong and complained that the Bank had, without obtaining his consent, adduced a copy of his identity card as evidence that he was born in Hong Kong, and this, he said, contravened the Personal Data (Privacy) Ordinance (“the Privacy Ordinance”). He further said that the addresses that he submitted to the Companies Registry were the addresses of the properties owned by other directors which he submitted as correspondence addresses as required by law, and that those addresses were not his residential addresses. He also complained that the Bank failed to comply with the Privacy Ordinance by amending his correspondence address to a P.O. Box at the Shatin Central Post Office.
12. On 23 September 2005, Mr Ku made a Second Supplemental Affirmation, in which he expressed doubts about whether Wong Shing had been properly authorized by the Bank to be its representative and also reiterated his complaints against the Bank in connection with the Privacy Ordinance.
Service of the petition
13. Regarding service of the petition, Mr Ku has agreed that he received the petition on 2 June 2005 at the Hong Kong office of the solicitors for the Bank and that he signed a document acknowledging receipt of the petition.
Burden of proof
14. In respect of the matters raised by Mr Ku, I understand that the Bank bears the burden of proving the correctness of the grounds that it relies on.
Service of the statutory demand
15. On the first point, Mr Ku did not have any positive evidence to deny that the Bank handed him the statutory demand on 17 January 2005. He only raised doubts about the evidence produced by the Bank.
16. In this respect, the Bank called Mr Lam Wai Keung, a clerk who worked at the solicitors firm, to give evidence. In his affirmation and supplemental affirmation, Mr Lam stated that, on 22 July 2004, upon the instructions of his employer Messrs. Tai, Tang & Chong, he went to Room 807, 8/F, Harbour Centre Tower 1, 8 Hok Cheung Street, Hunghom with a view to serving a statutory demand on Mr Ku, but Mr Ku could not be found.
17. Mr Lam also stated that the solicitors firm dispatched a letter on 28 July 2004 to the aforesaid address for the attention of Mr Ku, informing him that a representative of the firm would visit that address again at 4 p.m. on 5 August 2004 to serve the statutory demand on him. On 9 August 2004, the solicitors firm dispatched another letter to the above address for the attention of Mr Ku, stating that on 5 August 2004 one Mr Camond Ku telephoned the firm and told one Mr Mak of the firm that Mr Ku would not be there to receive the statutory demand on 5 August 2004 because he was not in Hong Kong. Mr Camond Ku also said Mr Ku would telephone the firm on 7 August 2004, but this never happened. The letter therefore stated that a representative of the firm would visit the above address again at 4 p.m. on 16 August 2004 to serve the statutory demand on Mr Ku.
18. At 4 p.m. on 16 August 2004, Mr Lam went to the above address again in order to serve the statutory demand on Mr Ku, but a male told Mr Lam that Mr Ku had left that address a long time ago.
19. Subsequently, in the legal proceedings by the Bank against Mr Ku (i.e. DCCJ 2809/2003), an application was made that was fixed to be heard before the District Court at 9.30 a.m. on 17 January 2005. On the morning of that day Mr Lam accompanied Mr Pang, a solicitor of the firm, to the District Court building in Wanchai to wait for Mr Ku. Mr Ku did attend the hearing. After the hearing, Mr Pang walked out of the court and indicated to Mr Lam who Mr Ku was. Mr Ku was at that time together with his younger brother Mr Ku Chu Lik. Mr Lam followed Mr Ku to the ground floor of the court building via the elevator, and after they both walked out of the court building, Mr Lam approached Mr Ku from behind and called his name. Mr Ku turned round in response, whereupon Mr Lam handed the statutory demand to Mr Ku in person.
20. What Mr Lam said is in my view eminently reasonable. The statutory demand was ready to be served on 2 July 2004 but no one had been able to serve it on Mr Ku. The hearing on 17 January 2005 therefore presented a good opportunity to serve that document on him. I see nothing particularly unusual in the way in which Mr Lam served the statutory demand on Mr Ku. Mr Lam’s evidence was clear, direct and straightforward and he had no reason for not telling the truth. He also managed to identify Mr Ku and his younger brother in the court. I accept Mr Lam’s evidence as true.
21. On the contrary, I do not accept Mr Ku’s evidence. Before 17 January 2005, he was aware that Messrs. Tai, Tang & Chong would be serving a statutory demand on him, but he did not receive the document as requested. Being called outside the court building and then served by the caller with a statutory demand must, to Mr Ku, have been a sudden occurrence that was not easy to forget. At that time he should have known that the statutory demand would form the basis of the subsequent bankruptcy petition presented by the Bank against him. He should have had a clear recollection of the incident. When he said in the court that he had no recollection of the incident, he was simply lying without a blink of the eyes.
The question of domicile
22. On the second reason advanced by Mr Ku, namely the issue of domicile, I start the discussion by referring to Dicey and Morris on the Conflict of Laws, 13th Edition. Paragraph 6R-001 of this book states as follows:
Rule 4 (1) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home.
(2) A person may sometimes be domiciled in a country although he does not have his permanent home in it.
This paragraph means that, generally speaking, a person is domiciled in a place where he considers his permanent home to be.
23. The learned authors of the book provide the following explanation at paragraph 6-004:
Permanent home. The notion which lies at the root of the concept of domicile is that of permanent home. ‘By domicile we mean home, the permanent home; and if you do not understand your permanent home I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it (Whicker v. Home (1858) 7 HLC 124, 160).’ A person may be said to have his home in a country if he resides in it without any intention of at present moving from it permanently or for an indefinite period. But a person does not cease to have his home in a country merely because he is temporarily resident elsewhere; and a person who has formed the intention of leaving a country does not cease to have his home in it until he acts according to that intention.
This paragraph means that, if a person resides in a country and does not at present intend to move from it permanently, he can be said to have his home in that country. He will not cease to have his home in a country just because he temporarily resides in another country. Even if he intends to leave a country, he will continue to have his home in it until he acts according to that intention.
24. Then, at paragraph 6-005, the learned authors have this to say:
While the notion of permanent home can be explained largely in the light of commonsense principles, the same is certainly not true of domicile. Domicile is ‘an idea of law’ which diverges from the notion of permanent home in two principal respects. In the first place, the elements which are required for the acquisition of a domicile go beyond those required for the acquisition of a permanent home. In order to acquire a domicile of choice in a country a person must intend to reside in it permanently or indefinitely. A person who intends to reside in a country for ten years and no more does not acquire a domicile in it, although he has his home there during the ten years.
This paragraph means that “domicile” is a legal concept which is distinct from “permanent home”. First (and this is relevant to the present case), the requirements of domicile go beyond those of permanent home. A person who desires to acquire a domicile in a country must intend to reside in it permanently or indefinitely. If a person merely intends to reside in a country for 10 years, then even though he has his home there during that period, he cannot acquire a domicile in it.
25. Counsel for the Bank drew my attention to Mr Ku’s testimony that, when he was in Mainland China, he still regarded himself as a Hong Kong person and a Hong Kong businessman; and when asked whether he wished to return to Hong Kong, he said that he would like to return to Hong Kong because it was close to his heart, but then he did not have the ability to do so. This, Counsel submitted, shows that Mr Ku had all along hoped that he could reside in Hong Kong permanently or indefinitely.
26. Furthermore, Mr Ku said he now lives in Hebei, in a room provided to him free of charge by a friend of his. The annual rental value of the room is approximately RMB¥2,000. In these circumstances, he can only be said to be temporarily residing at his friend’s property.
27. Mr Ku admitted that he was born in 1962 in Hong Kong and that his parents were holders of Hong Kong identity cards. He received education in Hong Kong and carried on business in Hong Kong until 21 June 2000 when, faced with credit problems that prevented him from running business, he had no choice but to go to Mainland China to carry on business. On this basis, he is residing in Mainland China solely in order to make a livelihood and he does not wish to reside in Mainland China permanently.
28. At this juncture I will refer to an example from paragraph 6-010 of Dicey and Morris in order to illustrate the above legal principles.
1. D, who is domiciled in England, accepts employment in New Zealand under a contract of service by which he will be obliged to remain in New Zealand for ten years. He accordingly takes his family and belongings to New Zealand and sets up house there intending to return to England after the end of the ten years. Although his home is for the time being in New Zealand, he continues to be domiciled in England.
In this example, an Englishman accepts employment by a company in New Zealand and is therefore obliged to live there for 10 years. He therefore moves his family to New Zealand, but intending to return to England after 10 years. Although he has his home in New Zealand during the 10 years, he is still domiciled in England.
29. I also refer to paragraphs 6R-033 and 6-039 of Dicey and Morris, which state as follows:
Rule 10 ― Every independent person can acquire a domicile of choice by the combination of residence and intention of permanent or indefinite residence, but not otherwise.
Intention. The intention which is required for the acquisition of a domicile is the intention to reside permanently or for an unlimited time in a country. It must be a residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation.
These paragraphs mean that any independent person can acquire a domicile of a place by, and only by, residing there with the intention to reside there permanently or indefinitely.
30. Paragraph 6-44 contains some examples that illustrate this principle. Examples 5 and 6 are as follows:
5. D, whose domicile of origin is Scottish, goes as a trader to India. He intends ultimately to return to Scotland. He retains his Scottish domicile. (Jopp v. Wood (1865) 4 DJ & S 616)
6. D’s domicile of origin is in New Jersey. From 1850 to 1860 he works in Russia as a railway contractor. Between 1860 and 1893 he spends a substantial part of each year in England for the sake of his health. From 1893 until his death in 1897 he lives exclusively in England, in spite of his anti-British schemes and sentiments. He has not returned to the United States since his departure therefore in 1850. He retains his domicile of origin in New Jersey. (Winans v. Att.-Gen. [1904] AC 56)
31. In Example 5, a person of Scottish domicile goes to India as a trader. As he intends ultimately to return to Scotland, he retains his Scottish domicile.
32. In Example 6, a person has a domicile of origin in New Jersey. From 1850 to 1860 he works as a railway contractor in Russia. From 1860 to 1893 he spends a large part of each year in England for health reasons, and despite his anti-British sentiments, he lives in England from 1893 to 1897 when he passes away. Although he has never returned to the United States since his departure in 1850, he is still domiciled in New Jersey.
33. As to the meaning of intention, I refer to paragraphs 6R-053, 6-054 and 6-055 of Dicey and Morris, which state as follows:
Rule 12 ― Without prejudice to the generality of the foregoing Rule, in determining whether a person intends to reside permanently or indefinitely in a country the court may have regard to:
(1) the motive for which he has taken up residence there;
(2) the fact that the residence was not freely chosen;
(3) the fact that the residence was precarious.
In order that a person may acquire a domicile of choice it has been said that there must be ‘a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness’.
In the first type, a person is alleged to lack the animus manendi because he has some special motive for coming to, staying in, or leaving a country. One view is that the existence of such a motive negatives the necessary intention. This is true if the existence of the special motive leads to the conclusion that the residence was intended to cease upon the accomplishment of the purpose for which it was taken up.
These paragraphs mean that, in determining whether a person has the intention to reside permanently or indefinitely in a country, the court must have regard to the motive for which he has taken up residence there. To acquire a domicile in a country, a person must freely choose to reside there and must not reside there because he is prescribed or dictated by external factors such as the duties of office, the demands of creditors or the need to seek medical treatment. If a person has a special purpose for going to and staying in a country and he will leave that country once the purpose is achieved, then he lacks the intention to stay in that country as required by law and hence cannot acquire a domicile in that country.
34. The legal meaning of such intention was discussed by the UK House of Lords on 30 June 2005 in the case of Mark v. Mark [2005] UKHL 42. Although the discussion focused on the lawfulness of residence, the above legal meaning also formed the basis of the discussion.
35. In Mr Ku’s eyes, Hong Kong is a place where he was born and brought up. He said that he was compelled by financial reasons to go to Mainland China to run business and to live there and that his present place of residence in the Mainland is provided free of charge by a friend of his. He regards himself as a Hong Kong person and Hong Kong businessman and hopes to return to Hong Kong for residence once his financial condition permits him to do so. In these circumstances and applying the aforesaid legal principles, I hold that Mr Ku is still domiciled in Hong Kong and not in Mainland China or Hebei.
36. Furthermore, as mentioned above, Mr Ku was born in Hong Kong in 1962 and his parents are holders of Hong Kong identity cards. He lived in Hong Kong and did not move to the Mainland until 26 June 2000. Therefore, his domicile of origin is in Hong Kong, and if he alleges that his domicile has changed from Hong Kong to the Mainland, he bears the burden of proving such a change.
37. In this connection, I refer to paragraphs 6R-017 and 6-018 of Dicey and Morris, which state as follows:
Rule 7 ― An existing domicile is presumed to continue until it is proved that a new domicile has been acquired.
There is a presumption that a person continues to be domiciled in the country in which he is domiciled; or, to put it differently, the burden of proving a change of domicile lies on those who assert it.
These paragraphs mean that the existing domicile of a person is deemed to continue until it is proved that he has acquired a new domicile; and he who asserts a change of domicile bears the burden of proving the truth of the assertion.
38. As Mr Ku says he is no longer domiciled in Hong Kong and is now domiciled in Mainland China, he bears the burden of proving such a change. I wish to point out specifically that this burden of proving a change of domicile is different from the burden of proof that the Bank bears ― as mentioned above, the burden upon the Bank is to prove the correctness of the grounds relied on to support its bankruptcy petition. Here, it is Mr Ku who asserts a change of his domicile, and it follows that he bears the burden of proving such a change.
39. Mr Ku only claimed in his oral testimony that he had abandoned his Hong Kong domicile during the 3 years preceding the date of filing of the petition (i.e. 5 May 2005). He did not provide any other evidence to support this claim. The record of telephone conversation that he produced in court on the last day of the hearing only serves to show that he was absent from Hong Kong for an extended period of time between March and April 2006. He has not produced evidence to show that he was not in Hong Kong during the 3 years preceding 5 May 2005, and such evidence may take the form of departure and entry records of the Immigration Department (see Guangdong Li Shui Fresh Fruits Wholesale Market Co. Ltd. (transliteration) v. Yip Lai Fong, HCA 2259/2003). Nevertheless, on the basis of the aforesaid legal principles, even if Mr Ku could show that he had continuously lived in the Mainland during the 3 years preceding 5 May 2005, it would not necessarily mean that he had abandoned his Hong Kong domicile or acquired a domicile in the Mainland or Hebei.
40. In the House of Lords case of Marchioness of Huntly and another v. Gaskell and others [1906] AC 56, the Earl of Halsbury said (at 66 to 67):
I myself think in my view of the law that it is expressed very well indeed by Lord Curriehill, approved and quoted by Lord President Ingils in the case of Steel v. Steel (1888) 15 R 896, ‘It is, I think,’ says the learned judge, ‘by no means an easy thing to establish that a man has lost his domicil of origin, for, as Lord Cranworth said in the case of Moorhouse v. Lord (1863) 10 HL C 272, “In order to acquire a new domicil, a man must intend Quatenus in illo exuere patriam,” and I venture to translate these words into English as meaning that he must to have a fixed intention or determination to strip himself of his nationality, or, in other words, to renounce his birthright in the place of his original domicil.’ The serious character of such a change is very well expounded by Lord Curriehill in the case of Donaldson v. Mclure (1857) 20 D 307. He says: ‘To abandon one domicil for another means something far more than a mere change of residence. It imports an intention not only to relinquish those peculiar rights, privileges and immunities which the law and constitution of the domicil confer on the denizens of the country in their domestic relations, in their business transactions, in their political and municipal status, and in the daily affairs of common life, but also the laws by which the succession to property is regulated after death. The abandonment or change of a domicil is therefore a proceeding of a very serious nature, and an intention to make such an abandonment requires to be proved by satisfactory evidence.’
This passage means that a person does not abandon his domicile simply by changing residence. Such an abandonment not only involves a relinquishment of the rights, privileges and immunities conferred by the constitution and law of the country of domicile on the citizens of that country in their business transactions, political and municipal status and daily affairs, but also involves a relinquishment of the law of succession of that country. An abandonment or change of domicile is, therefore, a very serious issue, and satisfactory evidence is needed to prove an intention to change a domicile.
41. In view of what Mr Ku said regarding his reasons for moving to the Mainland to live and carry on business, as well as his wish to return to Hong Kong for residence, I further hold that he has failed to prove that he has abandoned his Hong Kong domicile or acquired a domicile in the Mainland or Hebei.
42. The above findings on domicile are sufficient to support a bankruptcy order against Mr Ku. However, I have to consider three questions raised by Mr Ku in determining whether or not to make a bankruptcy order against him.
43. The first question is whether Mr Wong Shing, being a representative of the Bank and a witness, has been authorized by the Bank to conduct these proceedings on its behalf. I have heard Mr Wong’s evidence, which in my view is not open to doubt. I accept his evidence and hold that he is conducting these proceedings with authority of the Bank.
44. The second question concerns the use by the Bank of Mr Ku’s identity card as evidence that he was born in Hong Kong. Mr Ku contends that the Bank was acting contrary to the Privacy Ordinance. It is true that the Bank adduced a copy of Mr Ku’s identity card as proof of his place and date of birth. However, after Mr Ku admitted these facts in his testimony, the Bank never referred to his identity card again. In any event, pursuant to Section 58(1) and (2) of the Privacy Ordinance, the Bank, in a debt recovery action against Mr Ku, is entitled to use his identity card for proving the above facts.
45. The English version of Section 58(1) and (2) of the Privacy Ordinance reads as follows:
(1) Personal data held for the purpose of ―
…
(d) the prevention, preclusion or remedying (including punishment) of unlawful or seriously improper conduct, or dishonesty or malpractice, by persons;
(e) the prevention or preclusion of significant financial loss arising from ―
…
(ii) unlawful or seriously improper conduct, or dishonesty or malpractice, by persons;
…
are exempt from the provisions of data protection principle 6 and section 18(1)(b) where the application of those provisions to the data would be likely to ―
(i) prejudice any of the matters referred to in this subsection; or
(ii) directly or indirectly identify the person who is the source of the data.
(2) Personal data are exempt from the provisions of data protection principle 3 in any case in which ―
(a) the use of the data is for any of the purposes referred to in subsection (1) (and whether or not the data are held for any of those purposes); and
(b) the application of those provisions in relation to such use would be likely to prejudice any of the matters referred to in that subsection,
and in any proceedings against any person for a contravention of any of those provisions it shall be a defence to show that he had reasonable grounds for believing that failure to so use the data would have been likely to prejudice any of those matters.
Accordingly, Mr Ku’s complaint in this respect falls to be rejected.
46. The third question is based on Section 6D of the Bankruptcy Ordinance and the Bank’s refusal to accept Mr Ku’s proposal to pay off the debt by instalments. The Bank refused to accept the proposal because Mr Ku did not provide the Bank with security at the same time. Mr Ku submits that the Bank had not required any security from him when it issued him with a credit card in the first place, and it was therefore unreasonable for the Bank to reject his proposal on the basis of a lack of security. For this reason, Mr Ku opposes a bankruptcy order being made against him.
47. When the Bank issued Mr Ku with a credit card, the parties were not in hostility. Subsequently, when the Bank cancelled Mr Ku’s credit card account and commenced proceedings against him in the District Court, they were in hostility. In such a case, the Bank cannot be said to have acted unreasonably in rejecting an unsecured proposal to pay the debt by instalments. Mr Ku’s contention in this respect cannot be accepted.
48. In light of my judgment on Mr Ku’s domicile and given that none of Mr Ku’s three arguments are made out, I allow the Bank’s application on the grounds set out in the unamended petition and make a bankruptcy order against Mr Ku.
49. Although a bankruptcy order has now been made, I shall go on to consider the grounds for petition as set out in the amended petition. Mr Ku argues that these grounds cannot be established.
Ordinary residence in Hong Kong
50. On the first limb regarding Section 4(1)(c)(i) of the Ordinance, namely the meaning of “ordinarily resident in Hong Kong”, I refer to paragraph 4.06 of the Butterworths Hong Kong Bankruptcy Law Handbook (2nd Edition), which states as follows:
In R v Barnett London Borough Council, ex p Shah [1983] 2 AC 309 at pp. 342 and 343, Lord Scarman held that the natural and ordinary meaning of the words ‘ordinarily resident’ had been authoritatively determined by the House of Lords in two tax cases in 1928, namely Levene v IRC [1928] AC 217 and IRC v Lysaght [1928] AC 234 to mean ‘that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration’, and the word ‘habitually’ connoted two characteristics of residence, namely that of residence adopted voluntarily and for settled purposes. Unless it can be shown that the statutory framework or the legal context in which the words are used required a different meaning, ‘ordinary residence’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration. See also Lau San Ching v Liu, Apollonia (1995) 5 HKPLR 23 at p. 31, per Cheung J.
It has been held that in determining whether a person is ‘ordinary resident’ in Hong Kong, the following guidelines were helpful: (i) whether a person is ordinary resident in Hong Kong is a question of fact and degree and must be determined in all the circumstances; (ii) a person can have ordinary residence in two countries at the same time; (iii) the residence must be voluntary and cannot be forced against the person’s free will; (iv) involuntariness may negative ordinary residence; and (v) temporary or occasional absences of long or short duration do not negative ordinary residence: See Lau San Ching v Liu, Apollonia (1995) 5 HKPLR 23 at p. 28, per Cheung J. See also Director of Immigration v Ng Shun Loi [1987] HKLR 798(CA); and Re Lee Ka Ming, a minor [1991] 1 HKLR 307.
The above passage means that a person is ordinarily resident in a place where he habitually and normally resides, apart from temporary or occasional absences of long or short duration. Unless a statute otherwise provides, “ordinary residence” refers to a person’s abode in a place which he has voluntarily adopted and for settled purposes as a regular part of his life for the time being, whether of short or long duration. Furthermore, as illustrated by a number of decided cases, whether a person is ordinarily resident in Hong Kong is a question of fact and degree, and in determining the question, the court must have regard to all the circumstances. A person can have ordinary residence in two countries at the same time, and the residence must be voluntary and not be against the person’s free will. Ordinary residence will not be affected by temporary or occasional absences of short or long duration.
51. In light of the above discussion, as Mr Ku said that he was compelled by financial reasons to move to the Mainland and that he wished to return to Hong Kong for residence, his absence from Hong Kong was forced against his will. Although he had allegedly left Hong Kong for a few years, such absence was temporary and not permanent. Therefore, he is still ordinarily resident in Hong Kong. Even if he may also be ordinarily resident in Hebei, there are still sufficient reasons for adjudging Mr Ku bankrupt under the first limb of Section 4(1)(c)(i).
Whether place of residence in Hong Kong
52. I now turn to the second limb of Section 4(1)(c)(i), namely whether Mr Ku has had a place of residence in Hong Kong. In this respect, I refer to paragraph 4.07 of the aforesaid Butterworths Handbook, which states as follows:
A person has a place of residence in Hong Kong if he has a ‘place of residence’, such as a house or lodging to which to return to: See R v St Leonard, Shoreditch, Inhabitants (1865) LR 1 QB 21; and R v Glossop Union (1866) LR 1 QB 227; and he occupies or has the intention to occupy the place as a place of residence: see Re Brauch (A debtor), ex p Britanic Securities & Investment Ltd [1978] Ch 316, [1978] 1 All ER 1004. However, it has been held that the occupation of a place solely for the purpose of the occupant’s work was not a place of residence. See Commissioner of Inland Revenue v Chow Hung Kong [1978] HKLR 475.
It is not necessary that occupation of a place of residence be for the whole of the three (3) year period before presentation of a bankruptcy petition, provided that the debtor has a place of residence at some time during the 3 years: see Re Hecquard [1890] 24 QBD 71 at p. 74, per Lord Esher MR, followed in Re Brauch (A debtor), ex p Britanic Securities & Investment Ltd (above). A person may have more than one place of residence at the same time: see Lavene v Inland Revenue Commissioner [1928] AC 217; also Herbert v Byrne [1964] 1 All ER 882, [1964] 1 WLR 519.
Whether a person is resident in a particular place and whether that residence is permanent are questions of fact and degree: see Hipperson v Electoral Registration Officer of the District of Newbury [1985] 1 QB 1060.
This passage means that, if a person has a house or lodging in Hong Kong to which he can return, and he occupies or intends to occupy the place as a place of residence, then he has a place of residence in Hong Kong. It is not necessary to show that he occupied the place for the whole of the 3 years preceding the presentation of the petition; it suffices that he had a place of residence at some time during the 3 years. Furthermore, a person may have more than one place of residence at the same time.
53. Mr Ku said that he stayed at his younger brother’s home in Tai Po when he returned to Hong Kong. This was a place to which Mr Ku could return and, although it might not be his home, it was still his place of residence in Hong Kong. I therefore hold that he has had a place of residence in Hong Kong, and he can be adjudged bankrupt under the second limb of Section 4(1)(c)(i).
Carrying on business in Hong Kong
54. The final ground of bankruptcy as appears in the amended petition is based on Section 4(1)(c)(ii) of the Bankruptcy Ordinance, namely that Mr Ku has carried on business in Hong Kong during the 3 years preceding the presentation of the petition,
55. Section 4(2)(a) of the Ordinance provides that “carrying on business” in this context includes the carrying on of business by a firm or partnership of which the debtor is a member. Paragraph 4.10 of the aforesaid Butterworths Handbook states that the term “firm” is broadly defined and includes a limited company.
56. Attached to the affirmation of Mr Wong Shing (the Bank’s representative) as documentary evidence are copies of certain annual returns filed by companies. The first annual return was filed by Ku’s Fur Company Limited with the Companies Registry on 31 May 2004. This return contains information on the company as at 12 May 2004 and was signed by Mr Ku in person on 12 May 2004. The return states that Mr Ku owned two of the three shares issued by the company and that the third share was owned by one Ku Kwan Chu. They were both directors of the company, and the address they submitted was that of the Austin Tower property which Mr Ku said he had surrendered to the Bank of China (Hong Kong) Limited on 28 November 2001. The address of the company’s registered office was stated to be the abovementioned address at Harbour Centre in Hunghom.
57. The second annual return also relates to this company but was signed by a secretarial company as the company secretary on 12 May 2005. The return contains information on the company as at 12 May 2005. In this return, the address of the company’s registered office was changed to the residential address in Tsing Yi of a younger brother of Mr Ku’s. However, apart from the date, signature and registered address, the information contained in this return, including the names and personal addresses of the two shareholders and directors, was the same as that contained in the first annual return.
58. The third document is not an annual return but an application by a body corporate for business registration which the company filed with the Business Registration Office on 17 May 1999. The application, which was signed by Mr Ku, stated that the business address was the abovementioned Harbour Centre address, and that Mr Ku’s residential address was the abovementioned Austin Tower address. The business address of the company was changed on 29 April 2005 to the residential address in Tsing Yi, but as at 20 August 2005 (the date of filing of Mr Wong’s affirmation), Mr Ku’s residential address remained as the one at Austin Tower.
59. The fourth document is an annual return filed by one Full Billion Trading Limited with the Companies Registry on 25 November 2004. It contains information on the company as at 15 October 2004. Mr Ku was stated as a director of this company, and the address of all the shareholders and directors was stated to be the abovementioned Austin Tower address. The company’s registered office was stated to be at the aforesaid residential address in Tsing Yi.
60. The fifth document is an annual return filed by one Grandwill Holdings Limited with the Companies Registry on 23 March 2004. It contains information on the company as at 4 March 2004. The company had issued 10,000 shares, 9,998 of which were held by a secretarial company and the remaining two shares by Ku Chu Wai and the aforesaid Full Billion Trading respectively. The return shows that Mr Ku was a director of this company; that the address of Ku Chu Wai was the abovementioned Austin Tower address; that the address of Full Billion Trading was the abovementioned Harbour Centre address; and that the company’s registered office, Mr Ku’s address and the addresses of all the other directors were all the same, namely the aforesaid residential address in Tsing Yi.
61. The sixth and final document is an annual return filed by Grandwill Holdings Limited with the Companies Registry on 13 April 2005. It contains information on the company as at 14 March 2005. Apart from the date, all information in this return was the same as that in the previous return.
62. Apart from the above documents, Mr Ku conceded in his testimony that, although he had been forced to leave Hong Kong before 26 June 2001, he had since then continued to pay the business registration fees for Ku’s Fur Company Limited and he is still doing so now.
63. On the basis of the above documents and Mr Ku’s testimony, I hold that Mr Ku did carry on business in Hong Kong through the abovenamed companies during the 3 years preceding 5 May 2005. This also provides a ground for adjudicating him bankrupt.
64. Finally, I order Mr Ku to pay costs of the Bank and the Official Receiver in these proceedings.
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(L. Chan)
Deputy High Court Judge
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The debtor in person.
Mr Tsui Yee Lai (25 January 2006) and Mr Kenneth Lam (25 and 29 May and 9 June 2006), instructed by Tai, Tang & Chong, for the creditor.
Translated by Mr. Edmund Cham, Solicitor.
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