V CAPITAL LTD v. MARGARET CHIU

CACV 497/2021, [2024] HKCA 235

On Appeal From [2021] HKCFI 3133

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 497 OF 2021

(ON APPEAL FROM HCA NO 1431 OF 2017)

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JUDGMENT

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

1.  On 27 October 2021, Master Lai made an order that the Judgment Debtor, who had earlier been adjudged bankrupt on 22 April 2020, be imprisoned for the period of one month (“the Order”) for her wilful failure to make a full disclosure as required under Order 49B, rule 1A(2) of the Rules of the High Court, Cap 4A (“RHC”).

2.  On 8 December 2023, this Court gave its judgment (“the CA Judgment”) allowing the Judgment Debtor’s appeal against the Order, holding (inter alia) that a High Court Master has no jurisdiction, after a bankruptcy order has been made against a judgment debtor, to make an order for the imprisonment of the judgment debtor on the ground that he/she has wilfully failed to make a full disclosure as required under Order 49B, rule 1A(2) of the RHC, in the absence of leave to proceed granted by the court under s 12(1) of the Bankruptcy Ordinance, Cap 6.

3.  The basic facts of this case and the Court’s reasons for allowing the Judgment Debtor’s appeal are set out in the CA Judgment and will not be repeated here.

4.  By Notice of Motion dated 5 January 2024, the Judgment Creditor applies for leave to appeal the CA Judgment to the Court of Final Appeal.  In the Notice of Motion, the Judgment Creditor identifies the following two questions as being questions involved in the intended appeal which, by reason of their great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision:

“(1) Whether a High Court Master has the jurisdiction under Order 49B, r.1B(1)(c) of the Rules of the High Court, Cap. 4A to make an order for the imprisonment of a bankrupt judgment debtor on the ground that he has wilfully failed to make full disclosure as required under Order 49B, r.1A(2) of the Rules of the High Court, Cap. 4A, in the absence of leave to proceed granted by the court under s.12(1) of the Bankruptcy Ordinance, Cap. 6.

(2) If the answer to (1) is ‘no’, in what circumstances should the court give retrospective leave under s. 12(1) of the Bankruptcy Ordinance, Cap. 6.”

5.  Pursuant to paragraph 3 of Practice Direction 2.1, we determine the present application for leave to appeal on paper without an oral hearing.

6.  Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

7.  We have considered the parties’ respective submissions, which mainly relate to the merits of the intended appeal in respect of the two questions mentioned above.  We are satisfied that Question (1) is a question of great general or public importance which ought to be submitted to the Court of Final Appeal for its decision.  Having come to this view, it would not be appropriate for us examine the merits of the parties’ arguments, which will have to be fully ventilated before the Court of Final Appeal.

8.  Insofar as Question (2) is concerned, our decision not to grant retrospective leave to proceed under s12(1) of the Bankruptcy Ordinance was an exercise of discretion on the particular facts of the present case.  We explained why we refused to grant retrospective leave at [49]-[51] of the CA Judgment.  We do not consider that there is any proper basis for Question (2) to arise in this case.  In our view, Question (2) is not a question of great general or public importance involved in the intended appeal which ought to be submitted to the Court of Final Appeal for decision.  There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance in respect of Question (2).

9.  For the above reasons, we grant leave to appeal in respect of Question (1), but refuse to grant leave in respect of Question (2).

10.  The costs of the application for leave to appeal shall be in the cause of the appeal.