RE ERTH BINUO

HCB 7447/2025

[2026] HKCFI 646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 7447 OF 2025

________________________

________________________

________________________

REASONS FOR JUDGMENT

________________________

1.  By petition presented on 26 September 2025 (“Petition”)  the petitioner, Industrial and Commercial Bank of China (Asia)  Limited (“Petitioner”), seeks a bankruptcy order against Ms Erth Binuo (“Debtor”)  on the ground that the Debtor has failed to comply with a statutory demand advertised and sent by post to her on 27 September 2024. After hearing the submissions of the parties, I dismissed the Petition and ordered the costs of and occasioned by the Petition including the Official Receiver’s costs be paid by the Petitioner. These are the reasons for my judgment.

2.  The Petitioner’s case, as pleaded in the Petition, is that the Debtor is domiciled in Hong Kong and was indebted to the Petitioner in the amount of RMB 411,890.36 as at 6 October 2023 (“Debt”).

3.  The Debt arose in this way. Upon the Debtor’s application, the Petitioner issued an ICBC Greater Bay Area UnionPay Dual Currency Diamond Card to the Debtor (“Card”)  under account number 625-[redacted]-2781 on 25 March 2019 (“Card Account”). In applying for and accepting the Card and the Card Account, the Debtor agreed to be bound by the terms of the Credit Card Cardholder Agreement in force from time to time (“Agreement”).  The Agreement provides inter alia as follows:

(1)  The Debtor shall pay the amount due before the payment due date, a finance charge on the outstanding amount, an “over limit” charge if the credit limit or cash advance is exceeded and other fees, charges and expenses at such rate and in such amount as the Petitioner may from time to time determine (clause 9.1(h), (j), (k), (l)  and (t));

(2)  Subject to clauses 11.3 and 11.4, the Petitioner’s record of the amount of any charge, howsoever incurred, shall in the absence of manifest error be final and binding upon the Debtor (clause 11.1); and

(3)  The Petitioner may at any time, with or without notice, terminate the Card and the Card Account without giving any reasons, whereupon the total sum due to the Petitioner shall become immediately due and payable (clauses 17.2-17.3).

4.  In breach of the Agreement and despite repeated demands, the Debtor failed to pay the outstanding amount due whereupon the Petitioner terminated the Card Account on 2 August 2023.  The Debt comprised unpaid principal of RMB 406,805.26 and finance charge of RMB 5,085.10 with interest accrue at 16.08% p.a. (subject to fluctuation)  from 7 October 2023.

5.  By a statutory demand dated 6 October 2023, the Debtor was required to pay the Debt within 21 days thereof (“SD”).  According to the Petitioner’s solicitors, they attempted to serve the SD on the Debtor by the following means:

(1)  The SD was delivered to a flat at Wing Loong Building, Castle Peak Road (“1^st Address”), a unit at Admiralty Centre, Harcourt Road (“2^nd Address”)  and a flat at Harbourside, Austin Road West (“3^rd Address”)  on 27 August 2024 and 20 September 2024.  On all occasions, the process server[1] was not able to locate the Debtor. 

(2)  On 11 September 2024, the server sent appointment letters by post to the 1^st to 3^rd Addresses and by email to the Debtor’s last known email address, requiring the Debtor to arrange a time for accepting service of the SD on 20 September 2024.  The letters sent to the 1^st and 3^rd Addresses were returned with a note stating that there was no such person.  There was no reply to the email.

(3)  On 28 August 2024 and 9 September 2025, the server called the last known mobile phone of the Debtor but there was no answer.

6.  The Petitioner believed that it had exhausted all the means in trying to locate the Debtor for the purpose of serving the SD on her personally, such that the SD “could only be effectively made by advertising the [SD] in an English newspaper widely circulated in Hong Kong as the Debtor filled in the Petitioner’s credit card application form in English and opted for English language on ATM service”[2].

7.  On 27 September 2024, the SD was advertised in China Daily and sent by post to the 1^st to 3^rd Addresses.  This was notwithstanding the Petitioner’s solicitors knew that the appointment letters sent to the 1^st and 3^rd Addresses had been returned. 

8.  The Petitioner and its solicitors “firmly believe that the Debtor was within the jurisdiction of Hong Kong when [the server] made attempts to effect service of the [SD] as aforesaid and at the time of the said advertisement of the [SD] (i.e. the 27^th day of September 2024), there is no evidence shown to the contrary”.  The grounds of the Petitioner’s belief are as follows:

(1)  The Debtor is a Hong Kong resident and is domiciled in Hong Kong;

(2)  Since commencement of the proceedings, the Petitioner has not received “any notification from the Debtor of her removal from Hong Kong”; and

(3)  When the server attempted to effect service of the SD through the means described in §5 above, “there was no information or evidence suggesting that the Debtor had left Hong Kong”[3].

9.  On 26 September 2025, the Petition was presented and Lee 1^st was filed. 

10.  On 2 October 2025, the Petitioner filed an affirmation verifying the Petition[4]. The Petition was served on the Debtor’s solicitors on 11 December 2025. 

11.  On 16 December 2025, the Debtor’s solicitors filed a notice to act and a notice of intention to oppose petition stating that she intends to dispute the Petition on the ground that there is a bona fide dispute on substantial ground.

12.  In her affirmation filed on 22 December 2025 (“Binuo 1^st), the Debtor set out the detailed grounds upon which she relies in opposing the Petition:

(1)  Lack of jurisdiction.  The Debtor was domiciled in Liaoning Province in Mainland China until 2005 when she moved to Australia to pursue her studies.  After she graduated in 2008, the Debtor domiciled in Sydney and obtained her Australian passport in 2013.  The last time she visited Hong Kong was  December 2020.  While she remains a director of Vellum Limited (“Vellum”), a Hong Kong company, the Hong Kong office has no physical presence or active business activities or operations of its own in the past 3 years and is run by 2 employees[5] (“Jurisdiction Ground”).

(2)  Defective service of the SD.  The Petitioner did not do all that was reasonable for the purpose of bringing the SD to the attention of the Debtor given that she has not been resident or domiciled in Hong Kong since December 2020, and the SD sent to the 1^st to 3^rd Addresses and the advertisement did not reach her and she was not aware of the SD.  The Petitioner could easily have identified her addresses in Australia given her association with the operation of 4 Australian companies which formed part of the Vellum group set up by her in 2020 and used those addresses to effect service of the SD on her[6] .

(3)  Dispute on substantial grounds.  The Card Account was terminated by the Petitioner in August 2023 and the Debtor was not able to access the same.  The last statement she could access for 2022 was the statement for August 2022 which showed a debit balance of RMB 69,147.66 and the next statement she could retrieve was August 2023 which showed the debit balance had increased to RMB 404,600.38.  She was unable to verify the amount and transactions leading to the increase in the debit balance from August 2022 to August 2023.  The Petitioner refused to provide the Agreement to the Debtor despite repeated requests.  The Petitioner cannot rely on clause 11.1 of the Agreement as the Debtor has been blocked from accessing the Card Account’s records and has not been able to verify the transactions[7]. Moreover, clause 16.1 and 17.3 of the Agreement imposes an obligation on the Petitioner to notify the Debtor in the case of any changes or termination of the Agreement, or accumulation of any interest and fees, none of which has been performed by the Petitioner.

13.  Section 4 of the Bankruptcy Ordinance (“BO”)  provides as follows:

“(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)  is personally present in Hong Kong on the day on which the petition is presented; 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.”

14.  It would usually be sufficient for a petitioner to set out the petitioning debt and the grounds on which the bankruptcy order is sought, as it is for the debtor to raise a challenge to the court’s jurisdiction under s.4 of the BO (Re Cao Zhong [2021] HKCFI 3143, §32(1)  [8]). Where a debtor has filed notice stating that he/she opposes a bankruptcy petition on jurisdiction ground, it is incumbent upon the petitioner to adduce cogent evidence to show that one or more of the jurisdictional gateways under s.4 of the BO is met.  There are 2 reasons for this:

(1)  A bankruptcy petition cannot be presented to the court unless one or more of the jurisdictional gateways set out in s.4(1)  of the BO is satisfied. 

(2)  Rule 70 of the Bankruptcy Rules (Cap. 6A)  imposes the burden on a creditor to prove, at the hearing of the petition, any matters which the debtor has given notice that he intends to dispute (Re Leung Cherng Jiunn, HCB 244/2014, 21 May 2015, §§26-27).

15.  In the Petition, the Petitioner claims that “the Debtor is domiciled in Hong Kong.”

16.  Mr Oliver Tse, counsel for the Debtor, refers to Re Gregory and Bottomley (Debtors) [2025] 5 HKLRD 816, where Recorder Eva Sit SC (§19)  summarized the principles in respect of a person’s domicile as follows:

“(1)  ‘Domicile’ is a legal concept distinct from ‘permanent home’. The requirements of domicile go beyond those of permanent home. A person who desires to acquire a domicile in a country or place must intend to reside in it permanently or indefinitely.

(2)  An independent person can acquire a domicile by, and only by, residing there with the intention to reside there permanently or indefinitely.

(3)  In determining whether a person has the intention to reside permanently or indefinitely in a place, the court must have regard to the motive for which he has taken up residence there.

(4)  To acquire a domicile in a country or place, a person must freely choose to reside there and must not reside there because he is prescribed or dictated by external factors such as duties of office, the demands of creditors or the need to seek medical treatment.

(5)  If a person has a special purpose for going to and staying there and he will leave that place once the purpose is achieved, then he lacks the intention to stay in that place as required by law and hence cannot acquire a domicile in that place.

(6)  The intention of residence must be fixed and must be for the indefinite future. It is not enough that at any given point in time its length has not been determined.

(7)  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.

(8)  As abandonment or change of domicile is a very serious issue, satisfactory evidence is needed to prove an intention to change a domicile.

(9)  Further, a domicile of origin is distinguishable from a domicile of choice in 2 respects. Firstly, a domicile of original is more tenacious, in that it is more difficult to prove that a person has abandoned a domicile of origin than to prove that a person has abandoned a domicile of choice. Secondly, if a person leaves the country of the domicile of origin, intending never to return to it, he continues to be domiciled there until acquiring a domicile of choice in another country; but if a person leaves the country of his domicile of choice, intending never to return to it, the domicile of choice is immediately lost, and unless and until a new domicile of choice is acquired the domicile of origin revives.

(10)  Any circumstance which is evidence of a person’s residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice in that country.”

17.  The Debtor has adduced evidence with supporting documents to show that she had been domiciled in Sydney, Australia and the last time she set foot in Hong Kong was December 2020.   

18.  The fact that the Debtor’s nationality is Australia and she holds an Australian passport was stated in the application form when the Debtor applied for the Card and the Card Account and, therefore, must have been well known to the Petitioner. 

19.  The burden is on the Petitioner to prove that the Debtor has changed her domicile from Australia to Hong Kong by the time the Petition was presented. 

20.  However, having considered the Jurisdiction Ground raised by the Debtor for over 2 months (see §23 below)  and further elaborated in Binuo 1^st, the Petitioner has not been able to adduce any evidence to show that the Debtor is domiciled in Hong Kong as alleged in the Petition. 

21.  When this Court asks Mr Chris Fong, counsel for the Petitioner, as to how the Petitioner is going to prove that the Debtor has changed her domicile from Australia to Hong Kong, his only response is that the Petitioner requires more time to investigate the matter and seeks leave to file a reply affirmation within 42 days and an adjournment of the Petition. 

22.  The stance adopted by the Petitioner is unacceptable.  Bankruptcy petition is a serious matter as it affects the status of a person.   The Bankruptcy Court expects a petitioner to prosecute the petition with due dispatch.  Where, as here, the Debtor has raised the Jurisdiction Ground in correspondence and provided documents to show that she is not domiciled in Hong Kong, it is incumbent upon the Petitioner to consider whether there is a proper basis to continue to pursue the Petition. 

23.  In the present case, the Debtor raised the Jurisdiction Ground more than 2 months before the hearing:

(1)  By letter dated 6 November 2025, the Debtor through her solicitors put on record that the Debtor “is not domiciled in Hong Kong” as stated in §1 of the Petition; she has been domiciled in Sydney, Australia since 2021 and has not set foot in Hong Kong since 24 December 2020.  In the same letter, the Debtor requested for copies of the documents referred to in the Petition as well as copies of the bank statements of the Card Account. 

(2)  In their reply letter dated 14 November 2025, the Petitioner’s solicitors stated that “at no time since the issuance of the [Card] by [the Petitioner] to [the Debtor], did [the Debtor] inform [the Petitioner] of any change in her correspondence address.  Hence, [the Petitioner] does not accept that [the Debtor] is and was not domiciled in Hong Kong”.  They declined to provide any of the documents sought by the Debtor. 

(3)  In their letter dated 1 December 2025, the Debtor’s solicitors pointed out that whether the Debtor is domiciled in Hong Kong is to be determined by the facts, and the issue does not depend on whether the Debtor has informed the Petitioner of a change in correspondence address.  Copies of the Debtor’s past and present passport issued by Australia and flight ticket showing her departure from Hong Kong on 23 December 2020 were enclosed to the letter.  

24.  By 1 December 2025, the Petitioner was told in clear terms that the Debtor’s domicile had been in Australia and she left Hong Kong in December 2020.  If there is any evidence to show that the Debtor has changed her domicile from Australia to Hong Kong, one would expect the Petitioner to have adduced such evidence by the time the Petition is heard before this Court.  No such evidence has been adduced by the Petitioner.  

25.  As the Petitioner has failed to discharge the burden of proving that the Debtor is domiciled in Hong Kong, the Petition should be dismissed for want of jurisdiction. 

26.  It is unnecessary to deal with the other grounds raised by the Debtor in opposition to the Petition.