RE TAM MEI KAM

CAC V 87/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 87 OF 2012

(ON APPEAL FROM HCB NO. 3777 OF 2011)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  This is an application for leave to appeal to the Court of Final Appeal from our judgment given on 8 May 2013 dismissing Madam Tam’s appeal from a bankruptcy order made by Barma J (now Barma JA) on 25 April 2012.

2.  It is first argued by Madam Tam that an appeal lies as of right under s.22(1)(a) Hong Kong Court of Final Appeal Ordinance, Cap. 484 because it involved “the question of whether a Judgment debt of HK$2,243,938 leading to the making [of] a bankruptcy order is valid or not, and the bankruptcy order can only be overturned if and only if the said Judgment debt is set aside” and that “if the intended Appeal is successful, the Appellant has the immediate benefit of discharge of a purported Judgment debt of HK$2,243,938”.

3.  That argument ignores the fact that the appeal is from the bankruptcy order, not the judgment debt. An analogy can be made to an appeal from a winding-up order.  In Morgan Stanley Emerging Markets Inc v Legend International Resorts Ltd FAMV11/2007, 18.9.2007 (unrep) the Appeal Committee of the Court of Final Appeal held that there is no appeal as of right against a winding-up order simply because the underlying debt exceeded $1m.  Ribeiro PJ held (para. 11):

“the issue is whether a winding-up order should in law have been made on the footing that the Company was unable to pay its debts. ... A creditor who issues a winding-up petition is not suing on his debt. If the winding-up order is made, it does not constitute or lead to an order for repayment of the debt. Nor does it follow that the petitioner will recover any particular sum in the winding-up. A liquidated claim for the debt is not the subject-matter of the proceedings and its face value therefore provides no basis for an appeal as of right”.

4.  Madam Tam also sought leave to appeal under s.22(1)(b).  She argued that the following are questions of great general or public importance:

“(a) Whether there are settled criteria, guidelines or principles for deciding whether a piece of documentary evidence, by itself, is already self-explanatory and conclusive, where there are conflicting views in respect of the same?

(b) Whether a Judge could base on her own assessment of a piece of documentary evidence, without more, to found a critical conclusion? and

(c)   Whether a Judge is entitled to select between 2 scenarios (assuming the evidence can point to 2 equally viable scenarios e.g. perjury or no perjury) and without more, concludes that only one scenario is valid but not the other?”

5.  We do not consider that these are questions of great general or public importance or that they were engaged in our judgment.

6.  Madam Tam also argued that otherwise leave ought to be granted “because of miscarriage of justice since substantial and grave injustice has been done” to her, particulars being:

“(a) The note referred to in paragraph 21(1) of the CA Judgment (capable of establishing perjury in HCAP No.2/2004) was not dealt with by all Judges in HCAP No.2/2004, CACV No.200/2008, FACV No.11/2010 and HCB No.3777/2011; and the CA dealt with it for the first time in the present Appeal.

(b) The CA has now formed a view on the true effect of the said note as set out in paragraphs 31.2 and 31.3 of the CA Judgment:

(i) the note consists of what would appear to be different options available to the Deceased when considering how to distribute her assets, as opposed to definite instructions of the Deceased on how to actually distribute her assets contrary to the executed Will/Trust.

(ii) even the note shows the true intention and instructions of the Deceased on 31/10/2003, the same can be changed on 3/12/2003 when actually executing the Will/Trust.

(c) if the said view of CA in respect of the note is wrong, the present Appeal is bound to succeed:

(i) the Appellant would be victim of a fraudulent judgment obtained by perjury of Doris Lau in HCAP No.2/2004 by reason of the self-explanatory and conclusive note.

(ii) the Judgment Creditor herein would have contributed to the success of such a fraudulent judgment making the Appellant a victim, and could not be entitled to such service fees forming the Judgment debt in HCA No.2239/2009, in any event, in the eye of law and equity.

(iii) the continuation of a bankruptcy order against the Appellant for failing to pay services rendered in HCAP No.2/2004 but rendering her a victim of fraud, would be most unjust.

(iv) Justice cries for the quash of the bankruptcy order in such circumstances and the Appeal must be allowed.

(d) CA’s view on the note is unsupported by, let alone contrary to, evidence:

(i) The language of the note itself was unequivocal setting out the true intention and instructions of the Deceased;

(ii) There was a detailed typewritten note also of 31/10/2003 which was totally opposite to the note.

(iii) Between 31/10/2003 and 3/12/2003 it was claimed in evidence of Doris Lau and Sheila Ho that they were only proceeding to implement what had been reached on 31/10/2003.

(iv) There were 6 draft Wills consistent with the instructions set out in the note but inconsistent with the detailed typewritten note and the executed Will/Trust.

(v) There was only 1 final version of Will/Trust consistent with the purported contents of the detailed typewritten note but inconsistent with the note and the 6 earlier drafts.

(vi) Doris Lau’s explanation to (iv) & (v) above was inherently improbable and totally unbelievable, contrary to logic and common sense.

(vii) CA ought to have held that the note in self-explanatory and conclusive evidence of perjury of Doris Lau and allowed the Appeal.”

7.  We do not consider that any injustice or miscarriage of justice has been done and accordingly we would not grant leave to appeal on that ground either. 

8.  The application is accordingly dismissed.  There will be no order as to costs.