RE TAM SANG KWONG STEPHEN

HCB21785/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

IN BANKRUPTCY PROCEEDINGS NO.21785 OF 2003

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J U D G M E N T

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1. I have before me a petition by the petitioner, being a judgment creditor to the tune of something like $0.5 million and whose judgment has not been satisfied even after the statutory demand had been served that there should be an order made for an administration order in the usual way.

2. In addition to the judgment sum of half a million dollars of the petitioner there is another judgment sum of $1.5 million due to Mr Leung which has also not been satisfied.

3. I have before me quite a lot of affidavit material showing the state of affairs of the estate. It can be said that part of the estate consists of some shares owned by the deceased in two companies and that these companies in turn may have some realizable assets. But the question for me is simple and is pursuant to statute. The important part of the provision of the statute is of course, I believe, section 112(2) and (4). Section 112(2) which provides :

" The petition shall be served on the legal personal representative of the deceased debtor .... and the court may in the prescribed manner, upon proof of the petitioner's debt, unless the court is satisfied that there is a reasonable probability that the estate will be sufficient for the payment of the debts owing by the deceased, make an order for the administration in bankruptcy of the deceased debtor's estate or may upon cause shown dismiss the petition with or without costs."

So the statutory arrangement is clear, and that is to say, unless the court can be satisfied that there is reasonable probability that the estate will be sufficient for the payment of the debts owing by the decease, an order must be made.

4. It is admitted in paragraph 1 of the skeleton argument submission of the administratrixes of the estate of the deceased that the assets presently known to the administratrixes are not sufficient for payment in full of the known indebtedness of the estate of the deceased. Now that being the state of affairs, it seems to me that there is really no scope for argument for the court to do anything else.

5. My attention has been drawn to the judgment of Deputy Judge To in the case of Re Lam Ngai Fung Tony, Ex parte Chang Tin Duk Victor, HCB4641/2001 where, quoting a passage from the judgment in Re Philipp and Lion Far East Ltd, it is said at paragraph 13, at page 6 of the judgment that :

".... The test is whether [the debtor] can pay it out of cash or readily realisable assets in his hands."

And it is clear, applying that test that the estate cannot pay out of the cash or readily realisable assets in hands the amount due to the petitioner and to the judgment creditor.

6. It seems to me that this is a very clear and straightforward case where the administration order sought in the petition should be made. Therefore, I am satisfied that there is no question of an exercise of a discretion in favour of the estate, and it follows that the order sought must be made with costs nisi against the administratrixes.