XCHRX Zhang Sabine Soi Fan v. The Official Receiver

HCB472/89

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDING NO.472 OF 1989

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Reasons Handed Down : 25 May 1999

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R E A S O N S

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1. On 31 March 1999, discovery orders were made against Messrs Sit Fung Kwong & Shum and the Liu Chong Hing Bank Limited based on the finding of fact by the court that Zhang Sabine Soi Fan ("the Applicant") and the person adjudged bankrupt ("the Bankrupt") on 14 March 1990 are one and the same person. On 21 May 1999, the Applicant applied for review pursuant to section 98(1) of the Bankruptcy Ordinance which provides as follows :

" (1) The court or the Registrar may review, rescind or vary any order made by it or him, as the case may be, under its or his bankruptcy jurisdiction."

The application was refused. The reasons appear below.

2. Counsel for the Applicant explained that the application was issued as a result of a meeting held at the Official Receiver's Office on 16 April 1999. Apparently on that occasion, the Applicant together with her legal advisers and a lady by the name of Wan Soi Fan ("Miss Wan") attended the meeting. Miss Wan claimed to be the Bankrupt. The Applicant therefore believed that the identity issue had been "rectified" and envisaged the hearing to be a formal one. The Applicant's understanding proved to be incorrect. The Official Receiver has filed evidence making it clear that far from resolving the matter, the appearance of both the Applicant and Miss Wan together at the Official Receiver's Office raised more questions than it answered. As far as the Official Receiver is concerned, the matter is still highly controversial : he is not prepared to accept that Miss Wan is the Bankrupt.

3. It should be mentioned that at that meeting, an appointment for fingerprint tests was made for 19 April 1999 and arrangements put in hand. However, Miss Wan failed to keep the appointment. The present summons was then taken out, a notice of appeal having been filed on 16 April 1999 which was within the time limit of 21 days for appeal under section 98(2).

4. In what circumstances would the court exercise its jurisdiction to review?

5. In the context of a similar English provision under the Insolvency Act, the law is stated to be as follows :

"In practice the courts are cautious in exercising the jurisdiction to review their own decisions, since the effect of so doing is to allow what may amount to a second application for the order or relief which is being sought, possibly beyond the time limited for making the original application. The cases in which the court will exercise its discretion to entertain such an application will therefore be somewhat rare, and will normally involve the operation of exceptional circumstances, such as fresh and cogent evidence such as would, if unanswered, furnish grounds for reversing or varying the original order of that court."

See Fletcher on the Law of Insolvency at 314. In Re A Debtor [1993] 2 All ER 991 Millet J (as he then was) observed that "the jurisdiction ought to be rarely exercised" (at 995B) and that "any fresh evidence must be cogent evidence... where credible, it obviously need not be incontrovertible..." (at 996I).

6. In the present case, there is simply no new evidence, much less any "cogent" evidence. For reasons best known to the Applicant and Miss Wan, the appointment for fingerprint tests was not kept. Nor has any fresh evidence been filed to explain the many matters that the court considered required explanation as set out in my judgment of 31 March 1999 and which ultimately led to the finding of fact made. In those circumstances, the only appropriate order to make on the summons was to dismiss it.

7. As the Applicant has filed a notice of appeal and her appeal is due to be heard at the end of June, she will have every opportunity to challenge the correctness of the orders made.