RE LEE CHICK CHOI

HCB 1128/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO. 1128 OF 2015

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J U D G M E N T

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1.  This petition is brought on the basis of a debt owed by the debtor at HK$130,353.

2.  The ground of opposition is that the debtor is proceeding against the petitioner for a sum of HK$143,548 in DCCJ 4962/2014. The debtor says in that claim that it is a claim for service fee, but in fact it is a claim for salary as the claim is calculated on the basis of his salary for a period which was after the termination of his employment with the petitioner, but during which his name was still on an import/export licence issued by the Customs and Excise Department to the petitioner. 

3.  This claim has been dismissed in Labour Tribunal claim LBTC 588/2011, which was with a caveat that the presiding officer did not consider that she had the jurisdiction to deal with it.  The dismissal was way of an alternative finding. 

4.  The debtor applied for leave to appeal against the decision of the tribunal, but the application was dismissed in HCLA 29/2011 by Mimmie Chan J on 6 June 2013.

5.  The debtor made the same claim in HCA 2045/2012 in the last paragraph at the bottom of page 2 of the Statement of Claim in that action.  It was struck out by DHCJ Kent Yee on 1 December 2014. 

6.  The petitioner then issued a statutory demand against the debtor and the debtor applied to set it aside in HCSD 38/2011.  The application to set aside was determined by Anthony Chan J in HCSD 38/2011.  The learned judge said in paras 16 and 17 of his decision as follows:

“16. On 22 December 2014 the applicant served another writ of summons under DCCJ 496/2014 on the respondent claiming against it for service fee in the sum of HK$143,548.

17. It appears from the decision that the service fee claim was ventilated before the tribunal. Despite the tribunal’s ruling that it fell outside its jurisdiction, the tribunal did consider the same in the event that it was wrong on a question of jurisdiction. The tribunal concluded that there was no merit in a service fee claim and dismissed it.”

7.  In the light of the dismissal and also the dismissal of the application for leave to appeal, Anthony Chan J also dismissed the application to set aside a statutory declaration. 

8.  This morning, the debtor repeats the same argument which I also find unmeritorious. 

9.  Mr Yu, counsel for the creditor further referred me to page 77 of the hearing bundle where there is a copy of an order of the Court of Appeal dated 10 April 2015 ordering the debtor to pay the petitioner another sum of legal costs fixed at HK$50,000 by way of a costs order nisi.  The time for an application to vary this order nisi was seven days from the date of the order.  That period has expired and the debtor has not applied to vary it. 

10.  Mr Yu submits that despite the claim in DCCJ 4962, the sum in the petition and also this HK$50,000 legal costs put together far exceeds the claim in DCCJ 4962/2014, hence there is no reason not to adjudge the debtor a bankrupt.  I agree with Mr Yu and I make the usual bankruptcy order with the usual order of costs. 

Addendum

11.  After I have given my verbal decision, Mr Yu has very rightly informed me that, in fact, there has been an application to vary the costs order nisi.  In the light of that, I revise my decision that my decision is not based on that costs order of the Court of Appeal, but bearing in mind the dismissal in the claim of the Labour Tribunal, the dismissal of the application for leave, the dismissal by DHCJ Kent Yee in the High Court Action and the dismissal of the application to set aside the statutory demand by Anthony Chan J, bearing in mind all these, I also dismiss the opposition by the debtor to this petition. 

12.  I therefore make the bankruptcy order with the usual order of costs.