LEE CHICK CHOI v. BEST SPIRITS CO LTD

CACV 138/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 138 OF 2015

(ON APPEAL FROM HCB NO 1128 OF 2015)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1. This is an appeal against a bankruptcy order of 18 May 2015 made by L Chan J against the appellant. By a revised summons of 23 May 2016, the appellant sought to withdraw his application to fix a date for hearing of the appeal. According to his summons, the reason for so doing was to conduct out of court settlement negotiations. He also requested the summons to be heard in December 2016 as he would apply for legal aid “pending an outcome of investigation taken or to be taken by the Law Society of Hong Kong against Messrs Hobson & Ma”.

2. The summons is opposed.

3. The application is an interlocutory application and pursuant to Order 59 Rule 14A the court can direct the matter be determined on the basis of written submissions only. 

4. Having regard to the lack of complexity and the issues raised, this court considered that for the expeditious, fair and cost-effective disposal of the matter, it would be in line with the underlying objectives in Order 1A to direct this summons to be determined on paper without any oral hearing.  Directions were given on 26 May 2016 accordingly.

5. Notwithstanding the submissions, this court sees no reason why Lam VP should be recused from dealing with the summons.  The mere fact that Lam VP had been involved in refusing leave to appeal in another matter is not a ground for seeking recusal.

6. We have read the submissions of the parties.  In effect, the appellant is seeking to delay the listing of the appeal.  We agree with the submission of the solicitors for the respondent that this should not allowed on account of the appellant’s desire to conduct global settlement negotiation.  Though the appellant is appealing against the bankruptcy order, he is a bankrupt at present.  His estate is therefore vested in the trustee in bankruptcy and there is no suggestion that the trustee is minded to conduct any negotiations.  The respondent can therefore legitimately take the view that, as things stand, there is not much point in negotiating with him.

7. In any event, there is nothing to prevent the appellant to conduct whatever negotiations he wishes to conduct with the relevant parties between now (if not earlier) and the hearing of the appeal.

8. For obvious reasons, bankruptcy appeals should be processed promptly.  The trustee in bankruptcy needs to proceed with his works in relation to the affairs of a bankrupt.  There is a statutory period of 4 years for the discharge of the bankrupt.  By now, more than one year has lapsed since the making of the bankruptcy order.

9. There is thus no reason why the summons should be deferred to December 2016.

10. In the circumstances, we dismiss the summons and direct the appeal be referred to the Registrar of Civil Appeal to give further directions to facilitate the early listing of the appeal.  We also order the appellant to pay the costs of the respondent in respect of the summons.  Having regard to the works undertaken by solicitor for the respondent on the summons, we propose to fix such costs by way of gross sum assessment at $10,000.  If any party wishes to vary the amount of gross sum assessment, this can be done by writing to the court within 7 days.