RE LEE YIK KWONG

HCB 4043/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPCTY PROCEEDINGS NO. 4043 OF 2006

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J U D G M E N T

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1.  I have before me a summons of Lee Yik Kwong who was made a bankrupt on 18 May 2007.  In his summons issued on 7 July 2007, the bankrupt seeks the following relief:

(1)	to annul the bankruptcy order;
(2)	to adjourn all applications in the bankruptcy proceedings until after the determination of his appeal from the judgment of HH Judge Ng on 14 May 2007 in DCCJ No. 1291 of 2005; and
(3)	to stay the bankruptcy order.

2.  The bankrupt has appeared today and made submissions to the court.  The Official Receiver made a report to the court dated 12 July 2007.

3.  I understand from the Official Receiver that the bankrupt has not submitted his statement of affairs up to present.

4.  In his supporting affirmation made on 7 June 2007, the bankrupt deposed that on 17 May 2007, he filed an application in the District Court to seek leave to appeal to the Court of Appeal against the said judgment of Judge Ng and his application would be heard on 11 July 2007.  He submitted that the bankruptcy order should not be made against him on 18 May 2007 before his application was heard on 11 July 2007.

5.  The bankrupt did not appear before Judge Ng on 11 July 2007 to argue his application nor did the Official Receiver.  The judge dismissed his application and reasons were handed down the following day.  She referred to sections 12(1) and 58(1) and (2) of the Bankruptcy Ordinance, Cap. 6, by which the bankrupt’s right in respect of his application for leave to appeal to the Court of Appeal has become vested in the Official Receiver as his trustee in bankruptcy.  It is up to his trustee in bankruptcy whether to avail himself of the right and proceed with the application.  As the Official Receiver was not before the judge, the bankrupt’s application fell to be dismissed.

6.  That being the position, the basis to annul the bankruptcy order, as put forward by the bankrupt in his supporting affirmation, is gone.

7.  I should mention further that the court was not provided with any information of what grounds, if any, are relied on by the bankrupt in support of his application for leave to appeal against the judgment of Judge Ng.

8.  I am therefore in no position to come to any view that his application is made bona fide with reasonably arguable grounds of appeal.  That also is the stance of Mr Cheng who appeared for the Official Receiver.  Besides, even if the bankrupt could satisfy the Official Receiver that he has any real prospects of success in his application or proposed appeal, the Official Receiver would still require sufficient indemnity for his costs before he gives consent to the bankrupt to proceed with any application for leave to appeal or any proposed appeal.  I note that to date, the only asset realised by the Official Receiver comprised a bank balance of about $50.

9.  I see no reason to annul the bankruptcy order in these circumstances.  I am also not minded to grant a general stay of the bankruptcy order without conditions, pending any further application for leave to appeal that the bankrupt might wish to bring, for the reasons given in my earlier decisions in Re Chow Shun Yung, HCB No. 5334 of 2004, 10 June 2005, paragraphs 20 to 24 and Re David C Buxbaum, HCB No. 7637 of 2004, 16 September 2005 paragraphs 14 to 16.

10.  The bankruptcy order has been advertised and gazetted on 1 June 2007, so publicity has already been given to the order before the present application was issued by the bankrupt.  I cannot discern any basis for granting a limited stay of the bankruptcy order.  In his own interest, the bankrupt should co-operate with the Official Receiver from now on and give a proper account of his assets and liabilities.

11.  I dismiss the bankrupt’s summons.

12.  I order the petitioner’s costs and the Official Receiver’s costs in this application to be paid out of the estate of the bankrupt.  For the Official Receiver’s costs, I assess the amount on a gross sum basis at $5,250.00.