THE OFFICIAL RECEIVER v. POA KWOK HO ALEXANDER

CACV 269/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 269 OF 1998

(ON APPEAL FROM BANKRUPTCY PROCEEDINGS NO. 401 OF 1988)

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J U D G M E N T

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Liu, JA:

1. Mr Poa is a Bankrupt. These proceedings involved Mr Poa and the Official Receiver. Because of the recent change in legislation, the Official Receiver saw fit to seek a direction from Barnett, J. as to whether or not to advertise. In the Official Receiver's ex-parte application heard inter partes, it was made clear to the judge by the Official Receiver that he was content with a court direction merely on publishing a notice under s. 30A(5) and did not request the court to make any definite rulings on a great many issues canvassed before the court.

2. At the hearing before the judge, Mr Poa invited the judge to consider having him, the bankrupt declared automatically discharged after the end of twelve months, either on an earlier date of 1 April 1998 or at least on the latest, 1 April 1999. The invitation of Mr Poa was not favourably received by the judge who had good reasons to confine the issue between the Official Receiver and Mr Poa, on the former's ex parte application, within a narrow compass. The judge decided that the Official Receiver was entitled to advertise but for the further disclosures made in the submissions, Barnett, J., observed that it might not be undesirable for the Official Receiver to reconsider its intention to advertise. Mr Poa feels aggrieved by the determination of the judge and he appeals, raising personal grounds and grounds touching upon public interests.

3. Before the hearing of this appeal, on 29 October 1998, having reconsidered the situation apparently as a matter of courtesy to the observation made by the judge, the Official Receiver decided not to advertise Mr Poa's impending discharge or notify his creditors of the same fact. Mr Poa acknowledges the receipt of this letter of 29 October 1998 dispatched by the Official Receiver.

4. Speaking for myself, perhaps it would not be out of place here to refer to the doctrine of presumption of regularity - omnia praesumuntur rite esse acta. That much said is, in my view, sufficient to dispel whatever implications that may be read into the submissions of Mr Poa made either orally or in writing.

5. As I have said, many reasons have been advanced by Mr Poa in support of this appeal, but in the light of the letter of 29 October 1998 of the Official Receiver, it would seem that none of the orders sought by Mr Poa in his Notice of Appeal is a matter fit for consideration.

6. First of all, Mr Poa asks for the ruling of the judge to be set aside. The judge decided on the entitlement of the Official Receiver to give public notice pursuant to s. 30A(5). The Official Receiver has, on re-consideration of the affairs of and concerning Mr Poa, decided not to do so. Whether the judge's ruling on entitlement is right or wrong, a determination by this court would advance no interest of either of the parties to this appeal. Courts are not here to do academic exercises. Further consideration of that prayer in the Notice of Appeal would seem to be futile. The second order sought by Mr Poa is that he should be issued a Certificate of Discharge effective as from 1 April 1998. It is clear and has now been made reasonably clear to Mr Poa that unless a question is raised and decided on a proper initiating court process, there would be no substratum for this Court to entertain on appeal. Mr Poa did not himself make any application for a declaration that he was so entitled to be automatically discharged and, in effect, as an issue he sought to be ventilated before Barnett, J. it was not taken up by the judge who categorically confined the ex parte summons of the Official Receiver, heard, as I said, inter partes, within a very narrow ambit. So the second order sought by Mr Poa also falls away. Further, Mr Poa seeks costs of the ex parte application against Official Receiver. In dealing with the question of costs, the judge made no order. For an appeal against that part of the judge's order, leave would have to be obtained from the judge to prosecute a costs appeal. Mr Poa has made no application for leave. Also, no application has been made to this court for leave so to entertain his appeal on costs. Mr Pao cannot proceed with his case that the Official Receiver's ex parte application be dismissed with costs to him. Consequently, the proposed order to follow the success of the earlier three orders, by which Mr Poa seeks costs of this appeal cannot be well founded. In my view, the substantive appeal does not come close to being properly entertained by this court. There is also no substance in the last order asked of us by Mr Poa.

7. In sum, none of the orders set out in Mr Poa's Notice of Appeal can be properly entertained or should be granted. Mr Pao does not even begin to stand this appeal on its feet. For all these reasons, I would dismiss it.

Leong, J.A.:

8. I agree. Mr. Poa's appeal is against the order made by Barnett, J. that the Official Receiver might, if he thought fit, advise creditors in the way as prescribed by section 30A(5) of the Bankruptcy Ordinance. The Official Receiver has since reconsidered the matter and decided not to take action. His decision was notified to Mr. Poa.

9. In his notice of appeal, Mr. Poa urged this court to set aside the order of Barnett, J. and substitute that order with a declaration that he was entitled to a certificate of discharge effective from 1st April 1998. Mr. Poa also asked for costs.

10. Speaking for myself, now that the Official Receiver has decided not to pursue the matter, the order of Barnett, J. would no longer have any practical effect and the appeal on this point has become academic.

11. As regards the order that he was entitled to a certificate of discharge, this was not an issue decided by Barnett, J. This is cannot be a matter for consideration by this court. I, too, would dismiss the appeal.

Nazareth V-P:

12. I agree with my Lords. I would like to add some words of my own. It seems that Mr Poa was really concerned with securing a certificate of an automatic discharge to which he felt he was entitled by April 1998. However, what the Official Receiver's immediate concern was with his own entitlement to issue the advertisement he proposed to publish. He sought directions as to his entitlement. He did not in the event seek a ruling on Mr Poa's entitlement to a certificate of automatic discharge, as it appeared to him, that the problems and doubts about that matter would become academic by April 1999. The judge found that there was no reason why the Official Receiver should not advertise if he thought fit to do so in accordance with s.30A(5) of the Bankruptcy Ordinance, but that he, the Official Receiver, might in the circumstances wish to reconsider the matter and allow the bankruptcy to come to an end automatically on 1 April 1999.

13. This left Mr Poa in the unhappy position that the question of his entitlement to an automatic discharge had not been resolved. He appealed to this Court. In material terms, what he seeks from this Court is an order that the said ruling be set aside and that an order be substituted to the effect that the respondent is entitled to a certificate of discharge with effect from 1 April 1998, and that the applicant's application be dismissed with costs.

14. I have to observe that no one actually asked the court below for such an order. The judge himself did not make a decision upon the entitlement to such an order much less make an order resolving that matter. So what this Court is invited to do is to determine and order for the first time what should have been properly applied for below, i.e. the question of the entitlement of Mr Poa to an automatic certificate of discharge. For us to do so now is to deal with a question that is in substance academic. It has not been decided upon by the court below and it appears from the Official Receiver's contentions that it may become totally academic in two months time. Clearly, this Court does not make declarations that were not asked for below nor in relation to academic points and the appeal should not be entertained or should be dismissed.

15. However, Mr Poa also submits that there are other reasons which bear upon the point and that the court should exercise its statutory and inherent powers to allow the true issue which, he says, is the question of his entitlement to an automatic discharge to be addressed and resolved. His grounds very shortly stated are these: that he is a litigant in person and should not be "bogged down" with procedural difficulties; that procedural requirements should not be strictly applied to litigants in person; that the Official Receiver in focusing upon the advertisement side-tracked the court thereby diverting the court from the central issue of automatic discharge; that as a bankrupt, he was severely constrained in pursuing legal proceedings; that the court should administer justice, and finally, should be more interventionist in protecting the rights of litigants in person.

16. I cannot see that any of these grounds entitle Mr Poa to raise a new matter of that sort before us. It should be raised before the Court of First Instance. There appear to be other options too that Mr Poa can resort to. Indeed, it appears that if he simply sits back for another few weeks, he will receive his certificate of discharge. However that may be, plainly Mr Poa as an appellant is not entitled to raise the matter of his entitlement to a certificate of discharge in this appeal.

17. As to the question decided below, i.e. the matter of the advertisement, that is now a dead letter, the Official Receiver having informed Mr Poa in writing that he was not pursuing the proposal to advertise.

18. The appeal is accordingly dismissed.