RE TSANG WAI SHAN

HCB 17/2022

[2022] HKCFI 2692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 17 OF 2022

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R E A S O N S  F O R  J U D G M E N T

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1.  At the hearing of the petition presented by the petitioner, Standard Chartered Bank (Hong Kong) Limited (“Petitioner”), on 3 January 2022, I made the usual bankruptcy order against the debtor, Ms Tsang Wai Shan (“Debtor”). These are the reasons for my judgment.

2.  The petition is based on a judgment debt obtained by the Petitioner in DCCJ 5691/2020 on 22 April 2021 wherein the Debtor was adjudged liable to pay (1) HK$340,443.21 together with interest thereon at judgment rate from the date of judgment and (2) HK$7,780 as fixed costs of the action (together “Debt”).

3.  By a statutory demand dated 27 April 2021 served on the Debtor by way of advertisement on 20 May 2021, the Debtor was required to pay HK$348,670.92 (being the Debt and interest from 22 April 2021 to 27 April 2021) within 21 days thereof. No payment was made by the Debtor.

4.  The petition was scheduled to be heard on 2 March 2022 but was adjourned to 12 April 2022 and 31 May 2022 to allow the Petitioner to effect service of the petition on the Debtor. The petition was served on the Debtor personally on 27 April 2022.

5.  At the hearing before Master J Wong on 31 May 2022, the Debtor appeared in person and did not dispute her liability to the Petitioner.  Her only objection was that she had a settlement proposal which she considered the Petitioner should have accepted. The hearing of the petition was adjourned to 6 June 2022 before a Bankruptcy Judge.

6.  On 2 June 2022, the Petitioner sought short adjournment of the hearing to enable the parties to negotiate a settlement agreement whereupon the petition was adjourned to 22 August 2022 and subsequently  to 29 August 2022 due to change in court’s diary.  Meanwhile, the parties reached a settlement agreement on 15 June 2022.

7.  Despite the settlement agreement, the Debtor has failed to pay any part of the outstanding indebtedness to the Petitioner and the Debt remains unpaid.

8.  As the Debtor has failed to comply with the statutory demand and has not repaid the Debt, by virtue of s.6A(1)(a) of the Bankruptcy Ordinance (Cap. 6), the Petitioner has discharged the onus of showing that the Debtor is unable to pay her debt, as required by s.6(2)(c) of the Bankruptcy Ordinance.

9.  The burden is on the Debtor to show that there is a bona fide dispute on substantial grounds in respect of the Debt by sufficiently precise evidence which is believable, and must establish that she has a defence of substance, not just a fair probability of one (Re Leung Cherng Jiunn [2016] 1 HKLRD 850, at §27, per Kwan JA (as she then was); Re Soetrisno Farida [2019] HKCFI 2756, at §11, per Ng J).

10.  The Debtor has not filed any notice to show cause or any affirmation to dispute the Debt. Despite being given the opportunity to negotiate and reached a settlement agreement with the Petitioner, the Debtor failed to make any payment to the Petitioner. Although the Debtor called the Court’s clerk shortly before the commencement of the hearing claiming that she is unable to attend the hearing as she needs to take care of 3 children, I do not think that this is a valid ground for adjourning or opposing the petition. As the Debtor is unable to pay the Debt, it is just and appropriate for the Court to make a bankruptcy order against her.