PUBLIC BANK (L) LTD. v. CHOI SUNG FUNG

HCB10397/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

IN BANKRUPTCY

NO. 10397 OF 2004

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D E C I S I O N

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1.       I have before me an application by the Debtor in these proceedings for a further adjournment of these bankruptcy proceedings in the light of an appeal which he has made to the Malaysian Court of Appeal against the refusal of the Judge in Chambers in Malaysia to allow his appeal against the Acting Registrar’s – which I understand to be the equivalent of the Master in Hong Kong – refusal to allow his application to set aside the default judgment against him in Malaysia on which this petition is based.

2.       The petition has been adjourned on a number of occasions in the light of the applications taken out by the Debtor in the Malaysian courts to set aside the default judgment in question.

3.       There was at first instance before the Acting Registrar also an application for a stay of execution.  I am given to understand that that application was unsuccessful.  The application for setting aside itself was also unsuccessful before the Acting Registrar, but a further adjournment of the hearing of this petition was granted, pending the hearing of an appeal against the Acting Registrar’s decision.

4.       The position now is that the Judge in Chambers in Malaysia has heard that appeal and has dismissed it.  The only evidence in support of the application for a further adjournment is the affirmation of the solicitor acting for the Debtor in these proceedings in which it is simply stated that an appeal has been lodged against the decision of the Judge in Chambers in Malaysia.  No date has been fixed, so far as I am aware, for the hearing of the appeal.

5.       The evidence filed in support of the Debtor’s application for an adjournment does not indicate what, if any, prospects of success the appeal that has been lodged may have.  There is no evidence, for example, of any advice from Malaysian lawyers who would be qualified to express a view as to the prospects of that appeal’s success.

6.       In those circumstances, I am unable to see any good ground for a further adjournment of this Petition. 

7.       Although it may have been thought that there were prospects of success in the initial application, the position has moved on since then, the application having been heard, and there having been an appeal to the Judge in Chambers.  The principles on which an appellate court, such as the Court of Appeal in Malaysia, acts may well be rather different from those adopted by the court sitting at first instance, or on a hearing (perhaps by way of rehearing)of an appeal against a Master’s decision.  In those circumstances, in the absence of any evidence that there are any good prospects of success on the appeal, it seems to me that I should proceed on the basis that the default judgment in Malaysia is a good one.

8.       Mr Damian Wong, appearing for the Debtor, has urged me to take into account the likely prejudice that the Debtor would suffer if a bankruptcy order were made against him.  With respect, it seems to me that the possibility, as Mr Wong acknowledged it was, that the default judgment would be set aside and that therefore there would be a possibility – putting it no higher – of the Debtor suffering prejudice does not seem to me to be a sufficient matter to counter the prejudice that the creditors are likely to suffer in the event of further delay.

9.       In the circumstances, it seems to me that the appropriate course to take would be to proceed with the hearing of the petition and make the usual bankruptcy order with costs, and I do so.