AU WAI KEUNG v. WONG KA SEK AND ANOTHER

HCB 1038/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

IN BANKRUPTCY PROCEEDINGS

NO 1038 OF 2013

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RE: AU WAI KEUNG (區偉強), the Bankrupt

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D E C I S I O N

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1.  This is the appeal of the bankrupt, Mr Au, under section 83 Bankruptcy Ordinance to reverse a decision of the trustees in bankruptcy with regard to their assessment of the bankrupt’s and his wife’s reasonable domestic needs.

2.  The bankrupt lives alone in Hong Kong, while his wife lives alone in Shenzhen. 

3.  Only two items of living expenses are under challenge by the bankrupt in this appeal:

(1) The trustees only allowed $3,000 for the bankrupt’s monthly food expenses.  The bankrupt seeks $1,000 more. 

(2) The trustees only allowed $3,000 for provisions to the bankrupt’s wife.  This $3,000 is meant to cover all the living expenses of the wife, including rent, food, transport and any other miscellaneous expenses.

4.  The law is that, when an appeal is brought under section 83, it would be inappropriate for the court to interfere with the decision of the trustees unless it is shown that the trustees’ decision is clearly wrong.  In  other words, unless the trustees’ decision is utterly unreasonable, the court would not interfere: see the decision of the DHCJ Jeremy Poon (as he then was) in Chung Kau (unreported) HCB 581/2003, 23 February 2004.

5.  Having considered all the evidence and submissions before me, my decision is this. 

6.  As far as the bankrupt’s monthly food expenses are concerned, I am not satisfied that the trustees are clearly wrong in refusing to increase the expenses from $3,000 to $4,000. 

7.  It must be borne in mind that the $3,000 are just for the bankrupt’s food expenses.   In addition, the trustees have assessed and allowed over $6,000 for the bankrupt’s rent, utilities, transport, miscellaneous and even mobile phone expenses.  While this court has considerable sympathy for Mr Au, as a bankrupt, he has to bear the consequences of his bankruptcy. 

8.  As far as provisions for the wife are concerned, the trustees’ original assessment and decision to allow only $3,000 a month was on the basis that the wife had a part‑time job.  But circumstances have changed.  Mr Au told this court that his wife is out of work now, and $3,000 are insufficient to cover all her living expenses.

9.  It is not challenged by the trustees that the wife is now out of work.  The trustees have also frankly and properly admitted to this court that they have not revised their assessment of the wife’s reasonable needs in light of this new circumstance. 

10.  I am therefore satisfied that the trustees’ decision not to increase the monthly provisions to the wife is clearly wrong and unreasonable, and to that extent I shall allow the bankrupt’s appeal. 

11.  I shall therefore vary the trustees’ decision and order the trustees to revise their assessment of the monthly provisions to the wife from $3,000 to $5,000 and I will make no order as to costs.