CHAN KUENG UN ROY v. CHINA VEST II-A, LP AND OTHERS

CACV 154/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 154 OF 1999

(ON APPEAL FROM BANKRUPTCY PROCEEDINGS 16 OF 1999)

----------------------

----------------------

J U D G M E N T

----------------------

Godfrey, J.A. :

1. Mr. Chan Kueng Un, Roy has appealed to this court against an order made on 31 May 1999 by Le Pichon, J. By that order, Mr. Chan was adjudicated bankrupt. The judge's order was based on a judgment debt but Mr. Chan invited the judge to give him more time to organise his affairs, in particular, time to incorporate a joint venture company in Indonesia which would help him to satisfy some or all of his creditors. The judge refused to give time to Mr. Chan to do this. Accordingly, Mr. Chan has appealed to this court and we have his notice of appeal dated 10 June 1999 before us.

2. But the judgment creditors now come and object to the contents of the notice of appeal. They claim that the grounds of appeal are incontestably bad and accordingly ask this court to strike out the notice of appeal. That is the matter with which we have to deal today. Mr. Chan has not appeared before us, either by counsel or in person, but his elder sister is present and, without objection from the judgement creditors, we allowed her to address us on Mr. Chan's behalf. She has again urged us to give Mr. Chan more time to re-organise his affairs by the use of the joint venture company mentioned earlier in this judgment.

3. However, we cannot interfere with the exercise of the judge's discretion unless we are satisfied that she was plainly wrong to refuse Mr. Chan more time to organise his affairs. But it appears to me, as it appeared to the judge, that there is no reasonable prospect of any satisfaction for Mr. Chan's creditors if such time were given. There is simply no evidence before us on which we could act, even if we were minded to interfere with the judge's exercise of her discretion. We appreciate that Mr. Chan believes that if he is allowed to carry on his business as a going concern in Indonesia, notwithstanding the difficulties faced by that country at the moment, he will be able to reorganise his affairs, but that is not sufficient.

4. So, in my judgment, we have no option but to accede to this application to strike out the notice of appeal.

Rogers, J.A. :

5. I agree.

6. I would only add this.

7. Reading the judgment below, it is clear that the appellant was given an adequate opportunity by more than one adjournment to provide sufficient evidence as to his ability or the likelihood of payment of the debt. In my view, the judge below was faced with no alternative but to make the order which was made and I see no merits in the grounds of appeal.

Nazareth, V-P :

8. I also agree.

9. Not only is there plainly no reason to question the proper exercise of her discretion by the judge below but no less plainly it was exercised in the right way.

10. Accordingly the notice of appeal is struck out.

11. Having heard submissions upon that matter, we order that the petitioners are to have their costs of the application to strike out.