RE NG SHIU FAN

CACV 298/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 298 OF 2008

(ON APPEAL FROM HCB NO. 1201 OF 1998)

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REASONS FOR DECISION

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Hon Tang VP (giving the reasons for decision of the Court):

1.  We granted leave to the applicant Mr Ng to appeal from our judgment because he is entitled to appeal as of right. 

2.  A bankruptcy order was made against the applicant on 23 December 1998 on his own petition made on 3 November 1998.  On 23 December 2002, Mr Ng was discharged from bankruptcy automatically pursuant to section 30A(1) of Cap. 6.

3.  The proceedings concern the entitlement to the benefits under the Subsidized Schools Provident Fund Rules, Cap. 279D.  These benefits totalled $1,285,785.35 as at 23 December 1998 (the date of the bankruptcy order), $1,970,506.02 as at 23 December 2002 (the date of discharge) and $2,459,804.39 as at 31 August 2005 (the date the applicant’s employment ended).

4.  The official receiver claimed that the benefits formed part of the applicant’s estate under sections 43 and 2 of the Bankruptcy Ordinance, Cap. 6 and had vested in the official receiver pursuant to section 58.

5.  Kwan J agreed and held that the official receiver was entitled to all the benefits which would otherwise be due to Mr Ng.

6.  On the basis of the decision in Ex parte James [1874] LR 9 Ch App 609, we differed from the learned judge and held that the applicant is entitled to the benefits attributable to his service and contribution after his discharge from bankruptcy.  We did not believe a “high-minded” person would have wished to retain the post discharge benefits, and therefore the official receiver should not wish to do so. 

7.  The result of our decision is that the official receiver is entitled to $1,970,506.02 of the benefits.  That being the case, China Field Ltd v Appeal Tribunal (Buildings) (No. 1) (2009) 12 HKCFAR 68 requires leave to appeal to be granted as of right.

8.  The official receiver applied for leave to cross appeal in the event leave is granted to the applicant.

9.  Since the applicant is entitled to leave to appeal as of right, we granted leave to cross appeal since the applicability or otherwise of the rule in Ex parte James may well be relevant to the consideration of the relevant provisions of the Bankruptcy Ordinance.

10.  The applicant was represented by leading counsel in the appeal.  He had been given legal aid for that purpose.   He was refused legal aid for this application.  However, he will apply for legal aid for the appeal to the Court of Final Appeal.  In case it might assist the Director of Legal Aid, we are of the view that this matter is eminently suitable for legal aid.