LAY MAN YEE, MARY v. FRED LEE

CACV 262/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 262 OF 2008

(ON APPEAL FROM HCB NO. 13304 OF 2002)

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J U D G M E N T

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Hon Tang VP (giving the judgment of the Court):

1.  By a bankruptcy order dated 8 October 2002, Madam Lay, the appellant, was made bankrupt on her own petition.  In List B  (unsecured creditors) of her Statement of Affairs, she disclosed indebtedness of $ HK$2,714,480 to various banks and finance companies in respect of credit cards and loans.  In List D, she stated that her husband was unemployed and would apply for bankruptcy on the same day.  Her other dependants were her son and daughter as well as her mother and a brother who was suffering from disability.  In List G (Statement of Means), she stated that she had a monthly income of HK$51,860 and outgoing of $48,800.  She also owned a residential property which was subject to a mortgage and a second mortgage.

2.  Eventually, it was agreed that she should make a monthly contribution of HK$2,660 to her estate due to her bankruptcy with the 1^st payment to be made on or before 9 December 2002.  During the 4 years of her bankruptcy, she had made payments totalling about $122,000.

3.  Under section 30A of the Bankruptcy Ordinance, Cap. 6, her bankruptcy would be discharged by the expiration of 4 years beginning with the commencement of the bankruptcy on 8 October 2002.

4.  However, under section 30A(3):

“(3)  Where the court is satisfied on the application of the trustee or one of the bankrupt's creditors that a valid objection based on one or more of the grounds set out in subsection (4) has been made, the court may order that the relevant period under this section shall cease to run for such period, not exceeding, in the case of a person who-

(a)  has not previously been adjudged bankrupt, 4 years; …”

5.  By a summons dated 6 September 2006, the trustee applied:

“… for an order that the relevant period for the purposes of Section 30A of the Bankruptcy Ordinance (Chapter 6) shall cease to run for such period as This Honourable Court deems fit on one or some of the grounds as stated in Section 30A(4) of the Bankruptcy Ordinance (Chapter 6), details of which are set out in the Applicant’s affirmation …”

Essentially, the trustee relied on section 30A(4)(d) which provides as follows:

“(d)  that the conduct of the bankrupt, either in respect of the period before or the period after the commencement of the bankruptcy, has been unsatisfactory;”

6.  Kwan J by her judgment dated 8 August 2008, after a hearing on 30 July 2008, made an order such that effectively, the appellant did not obtain her discharge until 7 August 2008.

7.  On the same occasion, Kwan J dismissed the 3 summonses issued by the appellant dated 7 December 2006, 27 April 2007 and 12 October 2007 respectively. 

The appeal

8.  This is the appellant’s appeal from the order of Kwan J, extending her bankruptcy until 7 August 2008 as well as the dismissal of her 3 summonses.

9.  The appellant who acted in person below is represented by Ms. Margaret Ng in the appeal.  The trustee is represented by Mr Stanley M. W. Ng.  Both counsel have made their submissions in English, although the proceedings below were conducted in Chinese.

10.  In Kwan J’s judgment, she had dealt in detail with the trustee’s application under section 30A(3).  She had found proved 5 unsatisfactory conduct on the part of the appellant. 

11.  Ms Ng referred to them for convenience as follows:

“1.  Recent loan (近期借貸)

2.  Misrepresentation in borrowing (借貸誤導)

3.  Pre-bankruptcy Macau visits and gambling (破產前賭博)

4.  Post-bankruptcy Macau visits (破產後澳門之行)

5.  Non-notification of departure from Hong Kong (離港未有通知)

6.  Tax reserve and voluntary contribution (預留稅款及自願供款)”

12.  Before turning to deal with the alleged misconduct, we deal first with the complaint against the trustee in relation to his application.  Ms Ng has referred us to a number of decisions of the Court of First Instance and this court, where the trustee had also been the trustee, on issues relating to objection to automatic discharge on grounds of unsatisfactory conduct under section 30A(4)(d).  Ms Ng submitted that a feature of the trustee’s approach in the present case in common with these cases is to rely solely on documents provided in connection with the statement of affairs or other documents without investigation, and without considering all relevant circumstances in a “quasi-judicial” manner before issuing his objection against the bankrupt’s automatic discharge, barely a month before the date of the automatic discharge, resulting in the extension of the bankruptcy.  Ms Ng submitted that for these reasons the trustee’s application should be dismissed.

13.  In Re Liu Man Hoo (a bankrupt) [2007] 5 HKC 346 where the same trustee made an application for a suspension order less than 1 month before the date of automatic discharge on grounds of pre-bankruptcy and post-bankruptcy unsatisfactory conduct, Lam J, after referring to the judgment of Kwan J in Fred Lee v Leung Chin Yeung and Ors [2007] 1 HKC 164 said at 352B:

“12.  I regret that based on what I was told at the hearing, the Trustee seems to have taken the stance that he was only concerned with presenting a case that falls within s 30A(4) and it is left to the court to decide whether the discretion should be exercised against the bankrupt.  That is clearly not the right approach.  I hope it is an oversight on the part of the Trustee since he should have been fully aware of Kwan J’s observations.  It is important for a trustee to appreciate that he is performing a public duty (Kwan J described it as ‘quasi-judicial’ obligation) and an application for suspension under s 30A(3) will necessarily entail costs to be incurred.  Apart from the grounds under s 30A(4), a trustee should consider all other relevant circumstances in the case to see whether there is at least an arguable case that the court should exercise its discretion against the bankrupt. 

13.  Further, a trustee should carry out the necessary investigation to inform himself of all relevant facts before he could make a responsible and proper decision on whether it is appropriate to object in the circumstances of the case in question.  I find it astonishing that in the present case, the Trustee had not even conducted any interview with Liu regarding his pre-bankruptcy conduct before he decided to raise an objection based on s 30A(4)(d).

14.  If necessary, the court could inquire into the conduct of a trustee under s 84 of the Bankruptcy Ordinance.”

14.  It is important to note Lam J was not saying that absent proper investigation the trustee’s application should be dismissed in limine.  We believe the correct approach to such complaint is as stated by Barma J in Re Law Pak Wai (a Bankrupt), unreported, HCB 10680/2002, dated 7 March 2008, ex parte, Fred Lee, trustee of the property of Law Pak Wai, where he said:

“23.  Although I would agree that manner of the Trustees’ pursuit of these applications is open to criticism, I do not think that it would be appropriate to dismiss the applications on this ground alone.  If the conduct of a bankrupt of which complaint is made in an application objecting to automatic discharge is so serious as to call for the exercise of the court’s discretion to suspend the automatic discharge to which he would otherwise be entitled, I do not think that it would be appropriate for the court to refuse to make such an order because of failings on the part of the applicant.  Applications of this nature are not in the nature of private litigation between ordinary parties – they involve the public interest as well.  Where a bankrupt’s failings are such as to call for an extension of the length of his bankruptcy, the public interest would not appear to be well-served by a dismissal of an application for suspension of automatic discharge because the court disapproves of some aspect of the applicant’s behaviour.  I would not, therefore accept that such failings as there have been on the part of the Trustees would, of themselves, justify the dismissal of the applications.”

15.  We turn to the alleged misconduct.

Recent loan misrepresentation

16.  The recent loan refers to the loan made less than 4 months before her application for bankruptcy.  On 15 March 2002, the bankrupt borrowed from HSBC the sum of $79,000 which was repayable monthly at $2,033.  As the learned judge pointed out, at that time, the appellant’s monthly income was $71,000, but the amount which she had to pay included the following:

1)  to secured creditors, namely a bank about $13,500, Hong Kong Government $3,294 on the second mortgage of her home;

2)  Credit card, minimum repayment, not less than $30,000;

3)  Payment of loans, not less than $48,000, including the loan of HSBC of $79,000;

17.  Such amounts exceeded $94,000 which far exceeded her monthly income.  Nor had they included her monthly family outgoings of $48,800.  It is quite clear that at the time she borrowed $79,000 she was not in a position to repay it.

18.  Moreover, the appellant admitted that she was extravagant (揮霍過度).  The learned judge rejected her evidence that because it was easy to borrow money that had paralyzed her sense of crisis (危機意識), and that she thought she was still able to afford the loan.

19.  On such evidence, we are satisfied that the learned judge was entitled to regard the recent loan as a misconduct on her part. 

20.  Of course as the authorities show and the learned judge recognized a finding of misconduct would not necessarily result in the court exercising its discretion to suspend the running of the bankruptcy period.

Misrepresentation

21.  That is dealt with in paras. 37 to 46 of the judgment.  Ms Ng’s complaint is that no direct evidence from any representative of the financial institutions was produced, and that the trustee had made no attempt to investigate the matter with the appellant.  It may be that in some cases the absence of evidence from the financial institutions involved will lead to a finding that the alleged misconduct has not been made out.  Other times the court may nevertheless be in a position to find misconduct.  The matter must be looked at with common sense.  Here we are concerned with 2 application for loans, on 15 September 2000, and 21 November 2001 respectively.  By the time of the trustee’s summons (6 September 2006), one wonders whether it was realistic to expect any of the persons who was involved with the application forms to have any reliable recollection.  It is a counsel of perfection to suggest that the trustee should have made the enquiry within a reasonable time of the bankruptcy order.  One should have regard to the size of estate in order to determine what can reasonably be expected of a trustee.  It is true and we emphasize that in applying for an order under section 30A(3), the trustee is performing a public duty.  He owes the duty to the court to act fairly and competently.  Just as a section 30A(3) application “necessarily entail costs to be incurred”, so would investigation by the trustee.  The amount of investigation which one can reasonably expect the trustee to do will vary according to the resources reasonably available to the trustee. 

22.  The approach adopted by Kwan J in this case cannot be faulted.  She examined the evidence carefully before deciding whether on such evidence she could make the necessary finding.  In this case, for the reasons stated by her in the judgment, we have no doubt that she was right to be satisfied that the appellantwas guilty of misrepresentation. 

23.  The learned judge pointed out that in the appellant’s application for a personal loan of $200,000 dated 15 September 2000, repayable by 36 installments, the appellant signed the application form which included the declaration that the information supplied by her in the form “to be true and correct”.  On that form in relation to the enquiry whether she had obtained any loans from other finance company or bank the “no” box had been ticked.  On expenditure, the form disclosed 3 items of expenditure:

“Approximate general living expenses                                $3,000

Fixed monthly payments

(Hire purchase, education, etc)                                          $17,558

Monthly installment of this application                                  $7,956

Total expenditure                                                              $28,514”

24.  For her income:

“Basic Monthly Salary                                                     $47,970

Overtime Allowance / Other Income                                    $9,550

Total Income                                                                     $57,520”

25.  The learned judge said:

“39.  上述資料是不正確的，她沒有透露曾向兩間銀行借入款項。2000年8月25日，她從東亞銀行借入HK$80,000，這是一筆循環借貸。2000年7月11日，她從渣打銀行借入HK$30,000。這些借貸，不過是她向華人財務申請貸款前三個月內發生，她應該不會忘記。如果這兩宗借貸的還款也計算在開支內，她每月固定費用，便會超出HK$17,558。”

26.  The learned judge has rejected the bankrupt’s explanation.  The learned judge explained:

“40.  第二宗借貸，是向中信嘉華銀行申請一張Visa 信用咭。在2001年11月21日，她簽署一份申請表，確認她提供的資料真實及完整。其中一欄‘其他銀行及信用資料’，申請人需剔好有關空格，確認有沒有透支或其他貸款。雷女士剔了一些空格，表示她有支票戶口、儲蓄戶口、Visa 信用咭，及大來信用咭。她卻沒有剔這些空格 — 無抵押透支戶口、私人貸款、MasterCard信用咭、美國運通信用咭，和其他信用咭。

41.  申請表的資料，是不真實及不完整的。當時雷女士有八項私人貸款、四項循環或透支借貸，及持有六張MasterCard信用咭，和一張美國運通信用咭。

42.  關於華人財務的申請表，雷女士說不是她填寫的，職員只要求她提供一些財政文件，對方是根據她遞交的文件，替她填寫，自由選擇採用。她簽署時，表格也未完全填好。她聲稱沒有隱瞞財政狀況的必要，因為華人財務比她更希望達成交易。她否認表格其中‘曾否向銀行或財務公司借款’一欄，是她親手所剔。

43.  如果她的證供屬實，華人財務的職員，根本沒有向她詢問，就替她剔了沒有向銀行或財務公司借款，本席認為可能性不大。再者，沒有她本人提供資料，職員擅自替她填上$17,558作為每月固定費用，令人難以置信。本席也不接納她的證供，簽署時表格仍未填妥。即使申請表是職員代她填寫，簽署前她有責任確保，填報的資料均屬正確無訛。她是受過相當教育的專業人士，身為醫院病房經理多年，她應該清楚知道簽署借款申請表的責任。本席裁定，她所提供的不正確及不完整的資料，足以誤導華人財務，這是有意的，並非無心之失，也不是錯誤理解。

44.  至於向中信嘉華銀行申請信用咭，她聲稱表格填寫中途，職員已在催促，告訴她不需填寫所有資料，故此她留空了‘全年收入’這欄。她指稱對方是想盡快發信用咭給她，而所有在表格要求填報的已借貸資料，只是用來掩飾“濫貸求多做生意的意圖”。她辯稱在如此容易發咭的情況下，她毋需欺騙或隱瞞。

45.  本席也不接納她的證供，如前所述，她應該清楚知道申請信用咭時，填寫和簽署表格的責任。正如受託人指出，她剔了一些無關痛癢的空格，例如支票戶口、儲蓄戶口、Visa 信用咭等，卻遺漏了同一欄內的其他空格，例如私人貸款、無抵押透支戶口、MasterCard信用咭，和美國運通信用咭，本席認為她的指稱是說不通的。本席裁定，她所提供的資料，足以誤導中信嘉華銀行，這並非是無心之失或者是疏忽。

46.  誤導或企圖誤導信貸機構作出借貸，是不誠實的行為，較前一項令人不滿意的行為嚴重。本席認為不適宜運用酌情權，對這行為不作懲處。”

27.  With respect, the reasons are so cogent and convincing that it will be superfluous for any additional comment from us.

Pre-bankruptcy Macau visits and gambling

28.  This was dealt with by the learned judge in paras. 47 – 60 of the judgment. 

29.  The trustee relied on the records of her visits to Macau.  Ms Ng submitted that Kwan J should not have accepted such evidence as sufficient to constitute unsatisfactory conduct, and that frequent visits to Macau by themselves are legitimate activities unless extravagant spending or gambling was proved, and there was no evidence of either.

30.  The learned judge had had the benefit of the oral evidence of the bankrupt and Mr Leung, her brother-in-law.  Their evidence was to the effect that the purpose of her Macau visit was to help entertain Mr Leung’s PRC female business associates and had nothing to do with gambling. 

31.  Both the bankrupt and Mr Leung’s evidence had been rejected by the learned judge who had had the opportunity of hearing their evidence.  So the learned judge’s finding that the explanation was not true or not entirely true is a primary finding of fact.  We cannot interfere with such findings of fact unless we are satisfied on the facts that that learned judge’s conclusion on the facts are plainly wrong.  Ting Kwok Keung v Tam Dick Yuen and Ors [2002] 5 HKCFAR 336.  There is no basis upon which we can possibly come to that conclusion.

32.  1 year before her bankruptcy, the appellanthad left Hong Kong 81 times of which 70 times were to Macau.  Out of her 70 visits to Macau, she stayed for less than 24 hours in 34.  Moreover, in these 34 visits, she left Hong Kong in the afternoon near the evening, returning the next day before 9 am.  That after she had petitioned bankruptcy in July 2002, but before the making of the bankruptcy order in October, she went to Macau twice, once leaving Hong Kong for 24 hours, another occasion for 30 hours.

33.  Her credit card and bank material showed that between August 2001 and June 2002, 45 transactions totaling HK$273,837.40 took place in Macau, of which 1 was to pay a restaurant; to jewelry companies; and other 42 times were cash payments, 1 of which was in a casino.

34.  The learned judge pointed out that the bankrupt denied that she went to Macau for gambling.  That not only she was not interested in gambling, she was afraid of gambling and did not wish to associate with gamblers.  The learned judge said:

“53.  雷女士和梁先生誓章的證供，都經不起盤問的考驗，兩人的證供有重要的矛盾。

54.  據梁先生說，他後來把澳門接待的工作，交給公司主管級的人員負責，不過仍需雷女士在場，因為國內的人訂酒店，沒有香港人那麼熟悉。雷女士在法庭也說，她往澳門是為了替這些旅客安排酒店。兩人庭上的證供，與雷女士誓章的證供不符，她原先的說法是，只需偶然代訂酒店。再者，如果她去澳門是為了安排酒店，她本人沒有留宿的必要。

55.  梁先生又說，2001至2002年間，不多過五次接待供應商和政府官員（這點雷女士不同意），他們的消費能力較高。他公司裏月入十萬元的，只是一小撮人，當文員的月入不過是四千元左右。有一名姓劉的供應商，曾向他借了HK$50,000至HK$100,000賭錢，他記得有一次雷女士也借了錢給這供應商，劉先生後來還給他人民幣80,000，他兌換了港幣還給雷女士。她的信用咭及銀行資料顯示的澳門交易，撇除一次餐館的消費，兩次首飾公司的開支，還有42項提款機提款，沒有一項八萬元的交易，如果這些提款，都是為了籌錢給那些賭徒或購物狂使用，確實的文件證據，便與梁先生上述證供出現嚴重分歧。

56.  雷女士則說梁先生記錯了，因為他有高血壓，影響了他的記憶，劉先生是好幾次向她借錢，並非如梁先生所說，是一次的借貸。梁先生還給她80,000元，是多除少補，有剩餘的撥入下次借貸給劉先生之用。她的證供，含混其詞，不足取信。她辯稱40多次的提款機提款，大部份是購物之用，只是少數用來籌錢賭博，這是難以置信的，如果是購物之用，她可以用信用咭支付給商店，毋需提取現金。她誓章說她提取現金的提款機，全都位於賭場之外，故此所有提款，與賭博全無直接關係，這是不正確的（紀錄顯示有一次提款是在賭場，雷女士後來作供承認），也和她庭上的證供有矛盾。

57.  梁先生作供，經他安排旅遊的人，通常星期五、六、日幾天往澳門，當被問及雷女士很多時候星期一至三往澳門，他回答說他不清楚她在其他日子去澳門的原因。

58.  雷女士誓章所稱，她在澳門的所有開支，包括交通食宿，都由梁先生負擔，這與梁先生法庭上的證供不符。梁先生的說法是，他只負擔她的交通費，沒有支付她住酒店的費用。他後來說他在澳門有物業，雷女士如需留宿，可以住在他的物業。雷女士又補充，她只是在有單身女客情況下，才會住酒店，與女客同住一室。這與她誓章有出入，她宣稱她樂意到澳門接待旅客，因為她喜歡住酒店，但據她庭上所說，她不是每次留宿，都可以住在酒店，即使有酒店住，也要與陌生人共住一室。

59.  雷女士的銀行帳戶紀錄，找不到梁先生聲稱歸還給她的金額，她解釋說因為她有其他開支，沒有把這些款項存進銀行；她同意她在提款機提款，支付的利息很高。本席不認為她說的全是實話。

60.  本席不排除雷女士去澳門，可能間中曾接待梁先生的朋友或員工，不過本席認為有很多時是為了賭博，尤其是34次近黃昏出發，翌日早上才回港趕及上班的緊迫及頻繁的旅程。本席不接納雷女士和梁先生的證供，裁定雷女士破產前，曾多次往澳門賭博，這是她欠債的一個原因，是令人不滿意的行為，應否懲處，當在下文考慮。”

35.  Ms Ng submitted that since gambling by a bankrupt is a criminal offence under the Bankruptcy Ordinance, it has to be proved beyond reasonable doubt.  This applies with particular force to her post bankruptcy conduct.  But, we are not concerned with criminal prosecution, the appropriate standard of proof is proof on a balance of probabilities.  Solicitor (24/07) v Law Society of Hong Kong [2008] 2 HKLRD 576.  As Bokhary PJ explained:

“116.  … The more serious the act or omission alleged, the more inherently improbable must it be regarded.  And the more inherently improbable it is regarded, the more compelling will be the evidence needed to prove it on a preponderance of probability. …”

36.  Although Kwan J had not excluded the possibility that:

“60.  本席不排除雷女士去澳門，可能間中曾接待梁先生的朋友或員工，不過本席認為有很多時是為了賭博，…”

Of course, the rejection of their explanation would not per se prove that she went to Macau to gamble.  However in the absence of some other credible explanation for her frequent visits to Macau, we are of the view that the learned judge was fully entitled to come to the conclusion that the appellant went there “有很多時是為了賭博”. 

37.  Ms Ng submitted that although there had been many visits, but the intervals between the visits show that she was not a compulsive gamble.  But the learned judge had not found the appellant to be a compulsive gambler.

Post-bankruptcy Macau trips

38.  The learned judge dealt with them in paras. 61 – 68.  Between October 2002 and February 2006, she had been to Macau 30 times.  She left Hong Kong in total 44 times.  During her trips to Macau, 12 of them was for less than 24 hours, in average of 16 hours.  3 of them she left near the evening, returning early the next morning.

39.  We will not deal with these trips separately. We are in full agreement with the learned judge.

Non-notification of departure from Hong Kong

40.  Section 30A(10)(b)(i) has been declared by the Court of Final Appeal to be unconstitutional and of no legal effect in Official Receiver & Trustee in Bankruptcy of Chan Wing Hing & Anor v Chan Wing Hing & Anor & Secretary for Justice (Intervener) [2006] 3 HKLRD 687.  The bankrupt relied on that judgment before Kwan J.  Section 30A(10)(b) provides:

“(10)  Notwithstanding subsections (1) to (3), where a bankrupt-

……

(b)  after the commencement of his bankruptcy-

(i)  leaves Hong Kong without notifying the trustee of his itinerary and where he can be contacted; or

(ii)  fails to return to Hong Kong on a date or within a period specified by the trustee, the relevant period under subsection (1) shall not continue to run during the period he is absent from Hong Kong and until he notifies the trustee of his return.”

41.  But as Kwan J has correctly pointed out, the Court of Final Appeal has struck down section 30A(10)(b)(i) because it unnecessarily restricted the freedom of movement which is guaranteed by the Basic Law, but that as the Chief Justice pointed out:

  “45.  … Depending on the facts in a particular case, the circumstances that may be relied on to establish the grounds of objection [b], [c] and [d] may include the bankrupt’s conduct in leaving Hong Kong without notifying the trustee of his itinerary and where he can be contacted.  The court has to determine whether the ground of objection is established and has a discretion to suspend the running of the relevant period up to the prescribed maximum period.”

42.  We see no basis to dispute the learned judge’s conclusion.

Essence of discretion

43.  The learned judge then went on to consider whether the bankruptcy period should be extended.  This is what she said:

“71.  雷女士和受託人，就反對解除破產，引述了多個案例。本席不擬一一敍述，況且個別破產人的情況，也不盡相同。上文如何界定令人不滿意的行為，及如何行使酌情權，本席都參考了有關案例確立的原則 (Re Tong Yuk Kin, HCB No. 22870 of 2002, 20 June 2007, Dep J. To, paras. 15 to 22; Re Liu Man Hoo [2007] 5 HKC 346, paras. 8 to 18, 65 to 68; Re Wong Hing Wah Michael, HCB No. 26018 of 2002, 12 October 2007, Barma J, paras. 14 to 20; Re Law Pak Wai, HCB No. 10680 of 2002, 7 March 2008, Barma J, para. 5; Fred Lee v. Lau Chi Kam [2008] 3 HKLRD 627 para. 10)。 

72.  綜觀雷女士上述幾項令人不滿意的行為，本席認為應該延長她的破產期。提供誤導的資料申請借貸，有欺騙成份，是嚴重的行為。如果單是破產前沉迷賭博，雖然行為令人不滿意，破產人如有悔改，法庭未嘗不可寬大處理。不過雷女士入稟破產後，和在破產期間，仍不時往澳門賭博，又刻意隱瞞受託人，應該受適當懲罰，本案的情況與雷女士依賴的案例有別 (Re Wong Chi Wai Sunmy, HCB No. 12941 of 2002, 28 September 2007, Master Levy; Fred Lee v. Lau Chi Kam, supra.; Re Li Yat Shing, HCB No. 4224 of 2003, 5 November 2007, Master Levy )。

73.  在運用酌情權時，本席已平衡了破產人、債權人，和社會公眾的利益，並照顧到《破產條例》給予破產人更新機會的原意。延長破產的期限，必須恰當地反映令人不滿意行為的嚴重性，使破產人知所警惕，不會濫用《破產條例》賦予的權利。當然，雷女士的個人及家庭狀況，破產期間她作出的自願供款（雖然未達到受託人的期望），這些因素也在考慮之列。

74.  雷女士的破產期，本應在2006年10月8日屆滿，由於聆案官的中期命令，而受託人的申請在接近兩年後才得到聆訊，她的破產期實際上已延長了22個月。本席認為22個月的延長，已非常足夠，不需要再延長她的破產期。

75.  本席批准受託人的申請，把雷女士的破產期，延長至2008年8月7日，破產令在2008年8月8日解除。”

44.  Ms Ng submitted that Kwan J was wrong to have said the appellant:

“72.   … 應該受適當懲罰 …”

(72.   … (She) should receive appropriate punishment …)

Ms Ng referred to the case of Fred Lee v Lau Chi Kam [2008] 3 HKLRD 627 where Cheung JA said at page 631:

“10.  ……

(4)  Even if the conduct is unsatisfactory the court still has a discretion in deciding whether to suspend the automatic discharge.

(5)  The discretion is to be exercised by considering two main objectives :

(1)  The rehabilitation of the bankrupt by allowing him to resume a normal life in society.

(2)  The public interest of ensuring that the return of the bankrupt to the commercial world will not carry with it the unacceptable risk to persons likely to be engaged in commercial relations with him and also that commercial morality is preserved.”

45.  In para. 72 of her judgment, Kwan J referred to Lau Chi Kam.  So Kwan J was fully aware of Lau Chi Kam.  The rehabilitation of the bankrupt is of course an important consideration.  The public interest that the return of the bankrupt to the commercial world would not carry with it an unacceptable risk is also an important consideration, as well as the preservation of commercial morality.  Findings of misconduct under section 30A(4) may properly result in adverse consequence to the bankrupt.  In a suitcase case misconduct should not go completely “unpunished”.

The appellant's summons

46.  Ms Ng concentrated on the appellant’s application under section 84 to enquire into the conduct of the trustee is concerned.  As Ms Ng recognized the court has wide discretionary powers.  She also referred to us to the fact that Lam J had raised this possibility in Re Liu Man Hoo (a bankrupt) in which Fred Lee was also the trustee.  She identified the bankrupt’s grievances as follows:

“(1)  the trustee's apparently single-minded concern with pressuring her to increase her contributions, and lack of concern for her justified expenditure most of which had been previously agreed by the trustee's representative;

(2)  his unreasonable and persistent pressure on her to withdraw her support for members of her family in order to apply the funds as contribution to her estate;

(3)  the unreasonable attitude of the trustee had caused her not only mental anguish but extra costs in that she was unable to pay her tax with the result of incurring a penalty of HK$15,422, which translated into more monthly repayment reinstalments;

(4)  the trustee's persistence in the language and manner of communication had increased the difficulty of communication, resulting in the breakdown of trust and proliferation of documents in court proceedings;

(5)  the trustee's failure to communicate at all with her in good time on his view of her ‘unsatisfactory conduct’ before filing his application to object to her automatic discharge and resulted in the de facto extension of her bankruptcy and further expenses and anguish.”

47.  She also submitted that the details disclosed in the present case raise public concern.  The learned judge dealt with the bankrupt’s complaint in paras. 76 – 95 of her judgment.  Of these complaints, it would appear that the only one of consequence left is that she had not ordered any enquiry under section 84.  But as Ms Ng had recognized it is within the wide discretion of Kwan J, we can see no basis upon which we can properly interfere with the learned judge’s exercise of the discretion.

48.  For the above reasons, we would dismiss the appeal and make an order nisi that the bankrupt pays the costs of the appeal to the trustee.  Such cost to be taxed if not agreed.