TANG HOI WAN, a bankrupt v. FRED LEE and CHOW WAI LAN, CHRISTINE trustees of the property of TANG HOI WAN, a bankrupt

HCB 2936/2020

[2021] HKCFI 1634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKCRUPTCY PROCEEDINGS NO 2936 OF 2020

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DECISION

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1.  This is the hearing of the bankrupt Ms Tang’s summons of 11 May 2021. She does not seek any order or direction. She says she would like to know how much monthly expenses that could be approved to her. She states that she is a single parent, and that living is hard.

2.  Ms Tang appeared in person.  Ms Jacqueline K K Chan appeared on behalf of the Trustee.

3.  Ms Chan points out that the Applicant has not specified the legal basis of her application.  But in context, she submits, and I agree, that the basis could only be section 83 of the Bankruptcy Ordinance, Cap 6 (the “Ordinance”).  Ms Tang is in effect seeking an order to vary or overturn the assessment which the Trustees have made in respect of her reasonable monthly expenses. 

4.  Section 83 of the Ordinance provides that:

“If the bankrupt or any of the creditors or any other person is aggrieved by any act or decision of the trustee, he may apply to the court, and the court may confirm, reverse or modify the act or decision complained of, and make such order in the premises as it thinks just.”

5.  In an application brought under section 83 of the Ordinance, it would be inappropriate and unjust for the court to interfere with the decision of the Trustee unless it is shown that the Trustee’s actual decision was perverse or clearly wrong, in that the decision was utterly unreasonable and absurd and that no reasonable Trustee would so act — see Re Chung Kan, unrep, HCB 581/2003, 23 February 2004, §13.

6.  Ms Tang has filed an affirmation in support.  She states that:

(a) her income is HK$16,400;

(b) her ex‑husband (divorced in 2016) has not contributed towards the maintenance of their daughter, and has not been in communication with her;

(c) apart from maintaining her daughter, she needs to care for her parents. Her parents, and brother have been underemployed; and

(d) she requests the Court to make a determination.

7.  Ms Tang has not named any figure which she says to be reasonable.

8.  Mr Fred Lee has filed an affirmation in opposition of the application.  He states, relevantly, that:

(a) Ms Tang lives in a public housing estate together with her parents, brother and her 17‑year‑old daughter;

(b) Her father and mother are respectively 58 and 57, and her brother 36;

(c) Ms Tang attended the Trustees’ office on 8 January 2021 for assessment of her contribution;

(d) Her total expenses were assessed at HK$12,252.  They were itemized and set out at §13 of Mr Lee’s affirmation;

(e) As explained by Mr Lee, the Trustees and Ms Tang agreed to make the following contribution to her estate:

(i) HK$20,000 (clarified in the course of the hearing as being prior outstanding contributions for October to December 2020 in the total sum of HK10,000, together with a sum of HK$10,000 Ms Tang received under the COVID‑19 Cash Payout Scheme) to be repaid by an initial instalment of HK$500 commencing from 30 January 2021;

(ii) a monthly contribution of HK$3,500 commencing from 30 January 2021;

(f) Ms Tang has signed in confirmation of the contribution of HK$3,500 per month;

(g) Ms Tang has failed to make any contribution as agreed;

(h) Ms Tang has also failed to surrender the double pay or bonus in the sum of HK$16,400 which she has received from her employer.

9.  Ms Tang subsequently on 8 February 2021 wrote to the Trustees. She suggested that the Trustees were forcing her parents to work, that her ex‑husband had not been providing for their daughter’s alimony, and that she did not have the money to make the contributions.

10.  In reply, the Trustee suggested that given the age of her parents and brother, they should be in employment.  They are not being forced to work.  But that if they choose not to work, they should not be entitled to further assistance from Ms Tang to the prejudice of her creditors.

11.  In respect of the ex‑husband’s failure to provide alimony for the daughter, Mr Lee says that it is for Ms Tang to take appropriate steps (including approaching the Legal Aid Department for assistance to take action) against him.  Ms Tang claims that she could not find him.  No evidence is before me on the steps she has taken to locate him, or any approach she might have made to the Legal Aid Department for assistance.

12.  On the facts of the present case, given the assessment which the Trustees have undertaken, while the allowed monthly expenses are indeed tight, I cannot say that the Trustees’ decisions are perverse, or that no reasonable Trustee could have made those decisions.

13.  On the evidence, I in any event cannot as requested by Ms Tang tell her how much monthly expenses that could be approved to her. 

14.  I dismiss the application.

15.  On costs, originally Ms Chan sought costs in the sum of about HK$10,000.  No statement of costs is however available.  I raised the concern that the total amount of indebtedness is not large.  In the end and having taken instructions, Ms Chan fairly informed the Court that the Trustees will leave the issue on costs to this Court. 

16.  On the facts of the case, I make no order as to costs.