RE VINCENT KAY LO IP

cacv 229/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 229 of 2007

(on appeal from HCB NO. 1209 of 2000)

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REASONS FOR JUDGMENT

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Hon Rogers VP :

1.  I agree with the reasons for judgment of Le Pichon JA.

Hon Le Pichon JA :

2.  This was an appeal from an order made by Mr Recorder Ho SC on 10 July 2007 dismissing the bankrupt’s application to set aside the bankruptcy order made on 14 August 2000.  At the conclusion of the hearing the appeal was dismissed with costs assessed on a gross sum basis at $12,750 in favour of the Official Receiver.  The reasons for dismissing the appeal appear below.

Background

3.  On 13 January 2000, the petitioner obtained a judgment for damages for deceit in the sum of $1.5 million against the bankrupt.  A statutory demand was served on the bankrupt on 22 February 2000.

4.  The bankrupt filed a notice of appeal against the judgment.  Pending the appeal, the petitioner filed a bankruptcy petition.  Prior to the hearing of the bankruptcy petition, the appeal came on for hearing and on 18 July 2000, this court upheld the judge’s finding of liability to the petitioner but reduced the amount of damages from $1.5 million to $1,170,422.40.

5.  The petitioner’s solicitor filed an affirmation of continuing debt on 24 July 2000, deposing to the fact that the amount of damages had been reduced by this court and also deposing to the fact that the amount of damages found due remained outstanding as at the date of the affirmation.

6.  The petitioner took out a summons the following day to amend the bankruptcy petition relating to the order sought, substituting a “bankruptcy order” for a “receiving order”.  No amendment was sought regarding to the amount said to be owing in the petition and the statutory demand.  The bankrupt was represented at the amendment hearing on 31 July 2000 when the Registrar allowed the amendment and dispensed with service of the amended petition.

7.  The petition came before Chung J on 14 August 2000.  The bankrupt was also represented at this hearing.  The judge’s notes recorded that the bankrupt’s solicitor stated that he could not oppose the making of the bankruptcy order.  It would appear from the recording of the proceedings at which the bankruptcy order was made that the bankrupt’s solicitor indicated to the judge that the petition had previously been opposed only because of the then pending appeal.  In view of the outcome of the appeal, he was clearly not in a position to oppose the order sought.

8.  It is relevant to mention that subsequent to the bankruptcy order, the bankrupt applied for leave to use the official receiver’s name to appeal against it.  Although he succeeded before Kwan J, her order granting leave was set aside by this court on 23 February 2001 and the bankrupt’s application to the Court of Final Appeal for leave was dismissed on 24 April 2001.

9.  Since February 2004, the bankrupt has made no fewer than four applications to annul the bankruptcy order, the last of those being the decision below which forms the subject matter of the present appeal.

(1) Application dated 3 February 2004

10.  The bankrupt relied on section 33(1)(a) of the Bankruptcy Ordinance (“the Ordinance”) which reads as follows:

“	(1)		The court may annul a bankruptcy order if it at any time appears to the court that -
		(a)	on any grounds existing at the time the order was made, the order ought not to have been made; or …”

It was said that the order should not have been made because the petition was premised on a debt of $1.5 million which did not exist at the date the order.  Deputy Judge Poon (as he then was) dismissed the application on 29 March 2004.

(2) Application dated 23 August 2004

11.  The bankrupt sought to annul the order under section 33(1)(a) and (b) of the Ordinance.  As to subparagraph (b) which is premised on the payment or satisfaction of all the bankrupt’s provable debts expenses, it plainly had no application as the judgment of $1.17 million odd has never been satisfied.  Yam J dismissed the application on 16 September 2004.

(3) Application dated 1 February 2006

12.  Reliance was again put on section 33(1)(a) but as Chung J noted in his Reasons for Judgment dated 2 March 2006, no appeal had been lodged against the 2 earlier orders dismissing the earlier applications and the bankrupt was unable to put forth any valid reason in support of his third application.  The bankrupt apparently relied on the fact that he only discovered in February 2005 that the amended petition had not been served on him.  He also claimed that the registrar’s order of 31 July 2000 allowing the amendment had also not been served on him.  As noted earlier, the registrar had dispensed with service of the amended petition.  The judge dismissed the application.

13.  The bankrupt appealed the order of Chung J.  In his judgment dismissing the appeal (with which the other members of the court agreed) Rogers VP, after referring to the court of dispensing with service of the amended petition, made the following observations (at § 4):

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It dispensed with service for the very proper reason that the bankrupt was, at that stage, represented by solicitors and when the bankruptcy petition eventually came to be heard on 14 August 2000, the judge recorded that the solicitors said that they could not oppose the making of the Bankruptcy Order.”

(4) Application dated 18 June 2007

14.  This was the application heard by Mr Recorder Ho SC from whose decision (dismissing the application) the bankrupt has launched the present appeal.  Reliance was again put on section 33(1)(a).  The argument deployed was no different from that which had been rejected when the very first application was made in February 2004, namely, that both the statutory demand and the amended petition were defective having been founded on a judgment debt of $1.5 million and in view of the judgment of this court reducing the amount to $1.17 million, the bankruptcy order ought not to have been made on 14 August 2000 because the judgment debt of $1.5 million did not exist on that date.

Restricted application order (“RAO”)

15.  In dismissing the appeal from the third of the four applications made by the bankrupt to annul the bankruptcy order, Rogers VP intimated that if further applications were made to annul the bankruptcy order which in fact did happen, the judge might consider the making of an RAO.  Mr Recorder Ho SC who heard and dismissed the fourth application directed such a hearing.

16.  After hearing the RAO application on 10 October 2007, Poon J made the order on 22 October 2007 prohibiting the bankrupt from making any further applications to annul the bankruptcy order or similar applications to the Court of First Instance in HCB 1209/2000 without the leave of the ‘Designated Judge’.  That order had no application to this appeal.

This appeal

17.  From what can be discerned from the notice of appeal, apart from re-running the submissions made in the court below, the burden of the bankrupt’s complaint was that his right to appeal within 28 days from the judgment of this court given on 18 July 2000 was curtailed by the court hearing the bankruptcy petition on 14 August 2000 and dispensing with amendments which ought to have been made.  But, as noted in § 8 above, a bankrupt has no locus standi to appeal: that right is vested in his trustee in bankruptcy.

18.  At the hearing, as I understand it, the bankrupt sought to argue that two of his basic constitutional rights, namely, the freedom to travel and the right of access to the courts had been infringed as a result of the order of 31 July 2000 dispensing with service of the amended petition.  He suggested that he was out of Hong Kong at the time and had no knowledge of what had occurred on 31 July 2000 or of the substantive hearing of the petition on 14 August 2000.  But those are matters between him and his solicitors only.  They were on record representing the bankrupt and they were recorded as appearing at the two hearings in that capacity.  In my view, the appeal was devoid of merit and a complete waste of the court’s time.

Hon Stone J:

19.  I agree with the reasons for judgment of Le Pichon JA.