RE WONG SIU FAI

HCB 5082/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO. HCB 5082 OF 2000

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D E C I S I O N

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1.  The Official Receiver objects to the automatic discharge of the bankruptcy of Mr. Wong Siu Fai.  The ground relied on is section 30A(4)(c) of the Bankruptcy Ordinance, namely, that Mr. Wong has failed to cooperate in the administration of his estate.  For 4 years he remained uncontactable.  His bank accounts were closed.  He should have knowledge of his indebtedness and his bankruptcy but made no attempt to settle his debts nor to inform creditors or the Official Receiver of his whereabouts.

2.  Mr. Wong was a frequent traveler departing from Hong Kong for short periods ranging from less than one to 3 days.  The present summons has been adjourned various times pending the decision of Re Chan Wing Hing and Re Lin Hai San and their appeals to the Court of Final Appeal on the issue under section 30A(10) (“the Issue”).  Below is a short chronology of events:

21.03.01	Bankruptcy Order.
17.02.05	Summons objecting to automatic discharge (“the Summons”).
16.03.05	Interim order suspending the automatic discharge.   Summons adjourned pending determination of the Issue.
20.03.05	Bankruptcy would have expired automatically on this day but for the Summons.
19.05.05	Summons adjourned pending determination of the Issue by CA.
02.03.06	Summons adjourned pending determination of the Issue by CFA.
20.07.06	Judgment of CFA.
24.10.06	Mr. Wong attended the OR’s Office without making any appointment.
23.11.06	Bankrupt appeared in Court disputing debt.  He was advised to seek independent legal advice, consider whether or not to apply for annulment of the bankruptcy order.  Official Receiver would conduct preliminary investigation.
27.12.06	Summons adjourned pending outcome of legal aid application.
17.01.07	Summons adjourned pending outcome of legal aid application.
21.02.07	Bankrupt absent at hearing.  Summons adjourned.
21.03.07	Summons adjourned pending outcome of legal aid application.
16.05.07	Master Kwang gave 3 weeks for Mr. Wong to apply for annulment of the bankruptcy order and to file an affirmation in opposition to the OR’s summons.
13.06.07	Mr. Wong absent; after hearing, he explained that he had forgotten to attend the hearing.
04.07.07	Bankrupt absent for foot injury.
01.08.07	Hearing before me.  Mr. Wong absent.

3.  When Mr Wong first turned up at the Official Receiver’s Office on 24 October 2006 (over 1½ years after the original date of discharge), he was interviewed.  He submitted his Statement of Affairs on 27 October 2006 disputing the debt.  He claimed he had lost his ID Card during 2001 and believed that it was used by other persons to incur the debt.  He had no document to prove his assertion.  Mr. Wong also submitted 5 late annual statements, claiming that he had been unemployed for years and all living expenses were provided by his family members.

4.  At the hearing on 23 November 2006, he alleged that he had lost his ID Card and denied owing any debt to the petitioning creditor.  He said he had reported the loss of the ID Card to the police because he was imprisoned.  Notwithstanding subsequent written enquiries from the Official Receiver, he did not cooperate to explain his alleged loss of ID card and the time of imprisonment.

5.  Upon checking with the Commissioner for Correctional Services, it was noted that Mr. Wong was imprisoned 7 times between December 1993 and November 2005, ranging between 1 and 4 months.

Analysis

6.  Since the bankrupt has never shown up for 4 years the Official Receiver has good grounds for taking out this application.  It is no excuse that a bankrupt has been imprisoned during the term of his bankruptcy.  The duty remains on him to keep in touch with the Official Receiver and not for the latter to find him out.  Prima facie, for a “no show” situation, I would have extended the bankruptcy for 4 years.

7.  However, reading the evidence as a whole, I cannot help having a feeling of unease.  The Official Receiver had made enquiries with the solicitors for the petitioning creditor (“the solicitors”) regarding the debt.  It transpired that the only debt which founded the bankruptcy was under a Caltex oil account.  The application form for that account was purportedly signed by Mr. Wong when he was in prison.  Mr. Wong claimed that he did not own any vehicle.  He had lost his ID Card 5 to 6 times during 1994 to 1997.  His report to the police was rejected but was instructed to apply for a new card from the Immigration Department.  Monthly statements showing transactions which culminated in the judgment debt were addressed to someone bearing the same name as Mr. Wong “c/o Lai Loy Property”.  There was no record of a business by the name of Lai Loy Property at the Business Registration Office.  The original payment method was by autopay through a Standard Chartered but the petitioning creditor never received auto payment.  The payment method was changed to payment by cheque/PPS as the transaction had become seriously overdue.  The petitioning creditor’s investigation in May 2007 showed that the account was an invalid account.

8.  Neither the Official Receiver nor the bankrupt has applied to set aside the bankruptcy.  Before me now is a bankruptcy order now known to have been made under dubious circumstances.  By the date of the hearing, the Summons had already been issued for about 2 years and 4 months.  Part of this delay (one year and 4 months from the supposed date of automatic discharge) was not caused by Mr. Wong.  The rest of about one year’s delay was caused by Mr. Wong’s conduct in vacillating between applying for annulment and not.

9.  An order extending the period of bankruptcy is a serious one.  In my view, any doubt should be resolved in favour of the bankrupt.  Taking all circumstances into account, I exercise my discretion not to suspend the running of the bankruptcy.  The bankrupt is discharged on 20 March 2005.