RE: CHOY BING WING

HCB 12343/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO. 12343 OF 2009

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RE:  CHOY BING WING

EX PARTE:     DIRECTOR OF HOUSING DEPARTMENT OF
                        THE GOVERNMENT OF THE HONG KONG
                        SPECIAL ADMINISTRATIVE REGION

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D E C I S I O N

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Introduction

1.  This is the debtor’s appeal against the master’s order dated 11 November 2009.  By that order, the master adjourned the petitioner’s application for leave to withdraw the petition with costs against the debtor, so that full arguments can be advanced at the adjourned hearing.  The matters in dispute before the master are summarized in para. 4 to 7 below.

2.  Apart from the above, the transcript of that hearing shows the master also opined that there were scandalous remarks in the debtor’s affirmation dated 3 November 2009.  For that reason, he:-

(a)     struck out the scandalous parts of that affirmation;

(b)    referred the matter to the Department of Justice (“DOJ”) for investigation.  The petitioner thinks that the proposed investigation concerns a suspected contempt of court on the debtor’s part (see sub-para. (iii) of the fourth paragraph, JSM’s letter dated 2 December 2009).

Background

3.  The background leading to this appeal can be summarized as follows.

4.  The petition for the debtor’s bankruptcy was commenced on 15 September 2009.  It is based on a judgment debt the principal sum of which was $45,896.50.

5.  The debtor disputed his liability for the debt, but ultimately on 16 October 2009, he sent to the petitioner a cheque in the sum of $52,439.98 (being the said debt together with interest thereon).

6.  The petitioner took the view the cheque had no conditions attached, and presented it for payment (see JSM’s letter dated 27 October 2009).  The debtor contends the said cheque was a conditional payment.

7.  Further, in an affidavit dated 10 November 2009, the petitioner sought leave to withdraw the petition by reason the debt had been paid.  He also sought costs of the petition against the debtor.  The statement of costs shows a total sum of about $160,000.  The debtor also opposed the applications.

The Application to Recuse

8.  On learning this appeal was scheduled to be heard by me, the debtor took out an application on 2 December 2009 for me to recuse.  The debtor’s affirmation dated 2 December 2009 alleges that I have “no respect of the law” and am “totally unfit and incompetent to handle [the appeal]”.

9.  No factual basis has been set out in that affirmation.  Judging from the contents of the correspondence exhibited to it, the debtor’s allegation is premised on earlier decisions where I held against him.  The debtor considered that the opponent’s lawyers lied in court and I knowingly assisted the fraud by granting relief in their favour.

10.  The debtor’s allegation totally lacks merit.  Merely because a court has held against a litigant is not a valid reason for concluding in the way the debtor did.  Apart from such common sense observation, his allegation does not deserve further elaboration.

11.  For the above reasons, the application to recuse was refused.

This Appeal

12.  At the hearing of the appeal on 7 December 2009, despite having been informed the application to recuse had been refused, the debtor insisted on repeating his allegation of dishonesty and the like.

13.  In view of the obvious difficulty the debtor had of controlling his emotion (and to focus on the appeal), I directed that he was at liberty to lodge with court and serve his written submissions within 3 days.  Subsequent to the hearing, the debtor sent a letter to court.  To avoid any possible misunderstanding, I directed my clerk to send a letter to him on the same day.  It was in the following terms:-

“I refer to the hearing this morning before Hon Chung J and your letter dated 7 December 2009.

2.  I am directed by Hon Chung J to refuse your application for transcript.

3.  You claimed the transcript would assist your intended appeal.  The reason for the refusal is that:-

(a)     The court has not [ … ] determined your appeal and therefore there is no further appeal to speak of at present.

(b)     Reasons for refusing your application for Hon Chung J to recuse will be handed down shortly.  Transcript for the hearing is unnecessary.

4.  As regards the directions given at the hearing.  I am directed by Hon Chung J to clarify what the court actually meant as follows:-

(a)     You are at liberty within 3 days of the hearing to lodge with court and serve written submissions in response to the petitioner’s submissions.  Specifically, those are contained in JSM’s letter dated 2 December 2009.

(b)      Your written submission should cover all matters raised in the said letter (except sub-paragraph (a) of the second-last paragraph thereof).  In view of the first paragraph of your letter, please note that your submission should not be limited to costs only”.

14.  The deadline for the debtor to lodge with court and serve his written response expired after 10 December 2009; none has been lodged with the court.

(a)     The Adjournment

15.  As stated above, the master adjourned the hearing before him to another date so that full arguments can be put forth by the parties.  He cannot be faulted for doing so.

16.  This is no merit in this part of the appeal.

(b)     Striking Out Parts of the Affirmation

17.  The master struck out the parts of the debtor’s affirmation dated 3 November 2009 which contain scandalous remarks against the Registrar of the High Court.

18.  Extremely abusive language has been used against the registrar.  In fact, abusive remarks have been made against other parties mentioned therein: the Director of Housing and the solicitors acting for him.

19.  The master is clearly correct in making the order.

(c)     Referring to DOJ

20.  As stated above, the master referred the matter set out in the above sub-heading to the DOJ.  There was a valid basis for him to do so.  It will be up to the DOJ to consider whether contempt of court proceedings should be instituted against the debtor.

21.  No valid complaint can be made against the master’s referral.

Conclusion

22.  The appeal is dismissed.

Costs Order

23.  The petitioner seeks costs of the application to recuse and the appeal.  He also seeks those costs to be summarily assessed:  see JSM’s letter dated 7 December 2009.

24.  The debtor was given 7 days to respond to the above in writing: see the Judiciary’s letter dated 8 December 2009.

25.  The deadline expired after 15 December 2009.  The debtor has not lodged with the court any response.

26.  Further, the Official Receiver submits that costs of the application to recuse and the appeal should follow the event, and that he should be entitled to his costs: see the letter dated 10 December 2009.  Those costs totalled $9,750. The debtor was given another 7 days to respond in writing to the Official Receiver’s said letter: see the Judiciary’s letter dated 11 December 2009.

27.  In JSM’s letter dated 11 December 2009, the petitioner asks the Official Receiver’s costs to be borne by the debtor.

28.  On 11 December 2009, the debtor wrote and alleged that the directions for written submissions regarding costs were “all against the law and clear sign of conspiracy”.  It can be inferred it is unlikely the debtor will make use of his right to be heard afforded by those directions (I note that his letter was written in response to the Judiciary’s letter dated 11 December 2009).

29.  Having considered the matter, the following costs orders are made:-

(a)     as between the petitioner and the debtor, the costs of the application to recuse and this appeal be paid by the debtor to the petitioner;

(b)    those costs are summarily assessed at $9,208.90 and $22,461.20 respectively;

(c)     the Official Receiver’s costs are also summarily assessed at $9,750;

(d)    those costs be paid by the debtor to the Official Receiver.