RE CHAN SIK CHUNG LHAMSHIRMAN

HCB 8969/2016

[2020] HKCFI 1335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 8969 OF 2016

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D EC I S I O N

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1.  By a Decision dated 29 November 2019, DHCJ Simon Leung dismissed an application by the Bankrupt to reverse the decision of the Official Receiver refusing to (i) give him consent to proceed with legal proceedings in DCMP 3168/2013 in his capacity as the personal representative of his late father’s estate or (ii) assign to him the right of action in those proceedings. The judge made an order that the Bankrupt pay the Official Receiver’s costs of HK$41,000 within 14 days (the “Costs Order”).

2.  By a summons dated 30 December 2019 (the “Summons”), the Bankrupt applied to set aside (“撤銷”) the Costs Order.

3.  The hearing of the Summons was originally fixed for 11 February 2020 before G Lam J, who excused the Official Receiver from attendance. As a result of the General Adjournment Period necessitated by the COVID-19 pandemic, the hearing was vacated and the Summons came to be dealt with by me on paper.

Discussion

4.  In my view, the difficulty faced by the Bankrupt in this application is that the Costs Order was a final order of the Court.

5.  The Costs Order was not expressed to be an order nisi. On the contrary, it required the Bankrupt pay the Official Receiver’s costs within 14 days.[1]

6.  Nor is there any reason why the Costs Order should have been an order nisi. The Decision makes plain that Costs Order was made pursuant to a Statement of Costs lodged by the Official Receiver prior to the hearing. It is also clear that the Bankrupt had the opportunity to make (and did make) submissions at the hearing in relation to costs, albeit that his submissions were rejected as unjustified criticisms.

7.  In the circumstances, the Costs Order may only be revisited by this Court in the following circumstances:

(1)  if amendment is necessary to give effect to the Court’s manifest intention;

(2)  if there is a clerical error or accidental slip in the original order made by the Court, under the “slip rule” in O. 20 r. 11;

(3)  if the order provides for liberty to apply; or

(4)  if amendment is otherwise permitted by an applicable rule of Court.

See: Poon Ching Man v Lam Hoi Pun [2015] 3 HKLRD 57 at §13.

8.  The Court also has the power to reconsider its judgment and permit argument to be reopened where its order has not yet been perfected, but as Woo JA held in Sun Jianqiang v Trans-Island Limousine Service Ltd [2004] 1 HKC 533 at §23–29, this power must be exercised “judicially”; only where there are “strong reasons” and only in the “most exceptional circumstances”. The Court must balance the certainty and finality of judicial decisions against the need to do justice and saving the expenses of an appeal.

9.  The present case does not fall within the first three categories identified in Poon Ching Man. The Bankrupt does not seek to amend the Costs Order so to give effect to its underlying intention or to correct a clerical error. Nor is his application for the purpose of working out the Costs Order. Rather, he seeks to challenge the judge’s exercise of discretion in the first place.

10.  The present case does fall within the last category. Section 98(1) of the Bankruptcy Ordinance (Cap. 6), provides that “the court or the Registrar may review, rescind or vary any order made by it or him, as the case may be, under its or his bankruptcy jurisdiction”. Prima facie, the Court does have the power to revisit the Costs Order.

11.  However, I do not think it appropriate to exercise the power under section 98(1) to revisit the Costs Order. The relevant principles governing the Court’s exercise of its power under section 98 BO are as follows:

(1)  The Court’s power under section 98 is wide and “almost without limit”: Wing Lung Bank Ltd v Ho Shiu-sun [1986] HKLR 1134, 1140I (Clough J).

(2)  The Court must be cautious in exercising its discretion, and will normally involve the operation of exceptional circumstances, such as fresh and cogent evidence such as would, if unanswered, furnish grounds for reversing or varying the original order of that court: Zhang Sabine Soi Fan v The Official Receiver HCB 472/1989 (unrep, 21 May 1999).

(3)  The court should not review its order simply on the basis that the applicant wants to present essentially the same facts and the same arguments but more forcefully or attractively: Ross v HMRC [2012] EWHC 1054 (Ch) at §11-12 (Norris J) Papanicola v Humphreys [2005] 2 All ER 418 at §25-26, 34, (Laddie J).

12.  The Bankrupt’s main grounds for setting aside the Costs Order, namely (i) the Official Receiver’s alleged faults in preparing the hearing bundle and (ii) his impecuniosity, are essentially those which were run before DHCJ Simon Leung at the hearings on 24 October 2019 and 20 November 2019. These arguments were properly considered and dismissed to by the judge in his Decision. In my view, to allow the Bankrupt to reopen the issue (before a different judge, no less) is to give him a second bite of the cherry and would seriously undermine the finality of litigation. 

13.  Similarly, while it appears from the Court file that the Costs Order has yet to be drawn up and sealed, I decline to exercise the Court’s inherent power to reconsider the Costs Order. There are simply no exceptional circumstances or strong reasons which justify this course of action.

14.  For completeness, I would add that I see no merit in the Bankrupt’s grounds for setting aside the Costs Order.

Conclusion

15.  I dismiss the Summons. As the Official Receiver did not appear before me to oppose this Summons, I make no order as to costs.