RE FANG SAU MEI ANGEL

HCB 1023/2023

[2023] HKCFI 1595

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 1023 OF 2023

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R E A S O N S    F O R    J U D G M E N T

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1.  At the hearing of the bankruptcy petition presented on 24 February 2023 by the petitioner, Bright Smart Futures & Commodities Company Limited (“Petitioner”), against the debtor, Ms Fang Sau Mei Angel (“Debtor”), I made the usual bankruptcy order against the Debtor. These are the reasons for my judgment.

2.  The Petitioner is a judgment creditor for a sum of HK$816,183.84 (“Debt”) pursuant to a final judgment dated 26 April 2022 in DCCJ 4954/2021.

3.  The Petition was served on the Debtor by way of substituted service pursuant to the order of Master Lai.

4.  The Debtor has not filed any notice to show cause against the Petition as required by rule 68 of the Bankruptcy Rules. Nor has she filed any affirmation in opposition to the Petition.

5.  By letter dated 10 April 2023 sent to the court, the Debtor purported to oppose the Petition on the following grounds:

(1) The Petitioner has not explained the basis of the Debtor’s liability under the transactions which had given rise to the Debt; and

(2) The Petitioner has failed to establish the jurisdictional requirements in section 4(1) of the Bankruptcy Ordinance (Cap. 6) (“BO”) .

6.  Where, as here, a debtor has failed to file any notice to show cause or any affirmation to set out the facts of the case he/she seeks to advance in opposition to a petition, there is no proper basis for the debtor to ask the court to consider the grounds raised by him/her through other means. Bankruptcy petition is a serious matter. If a debtor wishes to oppose a petition and seeks to challenge the facts stated in the petition, he/she is expected to file a notice to show cause and an affirmation in opposition well before the hearing. There is ample time for a debtor to file such notice and affirmation as there is usually a 2-months’ time gap between the date the petition is presented and the hearing before a Master. This is in addition to the time period between service of the statutory demand and presentation of the petition during which the debtor has the opportunity to consider the petitioning debt upon which the Petitioner relies.

7.  Nevertheless, for the reasons explained below, the 2 grounds raised by the Debtor in her letter dated 10 April 2023 are wholly devoid of merit.

8.  The Debt is based on a final judgment entered against the Debtor. The Petitioner does not have to explain the basis of the Debtor’s liability under the transactions which gave rise to the Debt. As submitted by Ms Esther Mak, counsel for the Petitioner, a judgment is conclusive as to the existence of the judgment debt, and the Bankruptcy Court will treat a judgment for a sum of money as prima facie evidence that the debtor is indebted to the judgment creditor for that sum (Re Tam Mei Kam, CACV 87/2012, 8 May 2013, §22).

9.  As to the second ground, Ms Mak submits it is the Petitioner’s case that the Debtor is domiciled in Hong Kong under s.4(1)(a) of the BO, which is supported by the following evidence:

(1) she holds a Hong Kong permanent identity card;

(2) she lived in an apartment at South Horizons from at least 2011-2016, as stated in the account opening forms dated 2011 and 2016 (both signed by the Debtor) for the opening of her securities account with the Petitioner. This is confirmed by the address proofs provided by the Debtor to the Petitioner in 2011 and 2016; and

(3) she has maintained bank accounts in Hong Kong.

10.  In her letter, the Debtor claims that she emigrated overseas in April 2017 and since then has not lived in or carried on business in Hong Kong. She produced the travel records obtained from the Immigration Department for the period from January 2015 to March 2023.

11.  Ms Mak submits that where the Debtor suggests that there has been a change of domicile, the burden shifts to her to prove, on a balance of probabilities, that she has abandoned her domicile of origin and acquired a domicile of choice elsewhere (Re Chow Kam Fai [2004] 1 HKLRD 161 at §§15-16). The principle may be summarised as follows:

(1) Change of domicile is not to be lightly inferred from casual language or even long period of residence. It has to be proved with perfect clearness and satisfaction of a fixed and settled purpose, a determination, a final and deliberate intention to change (Re Chow Kam Fai, §17).

(2) In order to prove that a debtor has changed his domicile, it is insufficient to show merely that he is ordinarily resident in the new alleged domicile. What must be shown is that such residence was imbued with an intention of staying in the new alleged domicile permanently or indefinitely (Re Cao Zhong [2021] HKCFI 3143, §55).

(3) There is a strong presumption in favour of continuation of domicile of origin (Re Cao Zhong, §54).

12.  Ms Mak submits that the Debtor has failed to discharge the burden of showing that she has abandoned Hong Kong as her domicile of origin and acquired a domicile of choice elsewhere having regard to the following matters:

(1) The claims in the Debtor’s letter are bare assertions, not verified by any affidavit;

(2) The immigration records produced by the Debtor only show that she had not been in Hong Kong since 2017, but even a long period of residence outside of Hong Kong does not suffice to show a change of domicile (§11(1) above);

(3) There is no suggestion, let alone evidence, that the Debtor intends to abandon her domicile of origin for good, and to stay in her new domicile permanently or indefinitely. To the contrary, the Debtor only states that she would not return to Hong Kong “in the short term”;

(4) In her letter to the Petitioner dated 13 December 2021, the Debtor stated that (a) she was physically outside Hong Kong and would not be able to return to Hong Kong in the short term; and (b) even after the pandemic, it would not be easy for her to find a job in Hong Kong (“本人現時仍然身在海外，加上疫情，相信短期內未能回港，縱使疫情過後，回港找尋工作也不容易”). The latter reference to find a job in Hong Kong shows that she did not intend to abandon her domicile of origin; and

(5) She has not adduced any evidence to show that she has definitely abandoned any connections in Hong Kong.

13.  I agree with Ms Mak’s submissions.  Even assuming the assertions stated in the Debtor’s letter to the court may be treated as evidence (which they are not), I do not think that such assertions go anywhere near to show that she has abandoned Hong Kong as her domicile of origin or that she acquired any new domicile outside Hong Kong.