Alan Chung Wah Tang And Others v Lee Siu Fong And Another

Judgment Date13 January 2020
Neutral Citation[2020] HKCFI 176
Citation[2020] 1 HKLRD 694
Judgement NumberHCB345/2001
Subject MatterBankruptcy Proceedings
CourtCourt of First Instance (Hong Kong)
HCB345H/2001 ALAN CHUNG WAH TANG AND OTHERS v. LEE SIU FONG AND ANOTHER

HCB 345/2001

[2020] HKCFI 176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 345 OF 2001

____________

RE: LEE SIU FUNG, SIEGFRIED
(A DISCHARGED BANKRUPT) (BANKRUPT)

BETWEEN
ALAN CHUNG WAH TANG Applicants
HOU CHUNG MAN
(JOINT AND SEVERAL TRUSTEES IN BANKRUPTCY OF THE PROPERTY OF THE BANKRUPT)

and

LEE SIU FONG 1st Respondent
LEELALERTSUPHAKUN WANEE 2nd Respondent

____________

Before: Hon G Lam J in Chambers
Dates of Written Submissions: 4, 11 and 18 December2019
Date of Decision: 13 January 2020

______________

D E C I S I O N

______________

1. This is an application by the two respondents (both sisters the Bankrupt, the “Sisters”) for stay of execution pending appeal against the judgment of this court dated 21 September 2017. By that judgment this court made an order under s 29 of the Bankruptcy Ordinance (Cap 6) for the private examination of the Sisters (including both oral examination and production of documents).

2. The circumstances of this application are unusual in that although the order for examination was made on 21 September 2017 and a notice of appeal was served on 19 October 2017 (CACV 236/2017), the Sisters failed to procure that their appeal be set down for hearing and to take out an application for stay pending appeal until nearly two years later on 15 and 23 October 2019 respectively. Meanwhile, they have been in default of compliance with paragraph 2 of the order which requires the production of documents within 21 days of the date of the order and paragraph 4 of the order which requires an affidavit or affirmation to be made if they cannot provide the documents.

3. On 6 November 2019, when the parties by consent sought directions from this court for the application for stay to be dealt with on paper, the appeal had been fixed to be heard on 1 April 2020, whereas the Sisters were due to be orally examined on 24 March and 23 April 2020 respectively. Given the proximity of those dates, I suggested at that directions hearing that the parties might wish to consider whether a pragmatic way of resolving the matter by agreement could be found. In the end no agreement was reached, and while it might be tempting to say that since the appeal will be heard in less than 3 months’ time and so a stay would not impose a great deal of delay, ultimately the application falls to be determined on the basis of established principles under Order 59 rule 13 as set out in cases such as Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84.

4. In the context of the present case, under those principles, which underscore the rule that except otherwise directed, an appeal does not operate as a stay of execution (see Order 59 rule 13), it is necessary to see whether there are reasonable prospects of success of the appeal. If not, it is not necessary to consider whether without stay of execution, the appeal would be rendered nugatory: Lee Theatre Realty Ltd v Tong Wah Jor & Others (unrep, CACV 279/2009, 2 March 2010).

5. The decision being appealed was an exercise of the discretionary power of the court under s 29 of the Bankruptcy Ordinance (Cap 6) to order private examination for the purpose of enquiring into a bankrupt’s conduct, dealings and property: see, by analogy, The Joint & Several Liquidators of Kong Wah Holdings Ltd v Grande Holdings Ltd (2006) 9 HKCFAR 766, at §§4, 18, 28, 29, 31, 45. In relation to the equivalent statutory power in company liquidation, it has been said that the court has a “general” or “unfettered” discretion, although well‑established principles have been laid down in the cases over the years to guide the exercise of that power: Cloverbay Ltd (Joint Administrators) v Bank of Credit and Commerce International SA [1991] Ch 90, 99B, 105B‑D, 106E. On this basis it seems to me that the Court of Appeal will not lightly intervene on appeal except where this court has proceeded on wrong principles or the exercise of discretion has been plainly wrong.

6. Turning to the grounds of appeal, on Ground 1(i), it is difficult to see how imposing a monetary and temporal limit in favour of the Sisters could negative the conclusion that the Trustees had shown a reasonable requirement for the information. As to the question of oppressiveness, this has been addressed by this court on a balancing exercise, leading to the conclusion that the examination should be confined to transfers over HK$100,000 each (or equivalent) from 1996 onwards. Lee Siu Fong’s affirmation used at the hearing merely said that they would be in a greatly difficult position in retrieving documents and that memories faded. It does not seem to me that this ground shows any error in principle or that this court was plainly wrong in the exercise of discretion.

7. As to Ground 1(ii), it is not disputed that Lee Siu Fong had been used by the Bankrupt as a conduit in respect of the sum of $11m. There is no suggestion that this was a one‑off incident. The Insider Dealing Tribunal had found that the Bankrupt “was prepared to use his family members … to execute his dishonest schemes” including feathering a nest offshore to avoid creditors. The Trustees’ suspicions cannot be said to be unjustified.

8. Ground 1(iii) contends that this court should have imposed on the Trustees a requirement to show a “strong prima facie case” that the Sisters will be able to provide the information sought. Section 29 of the Ordinance refers to any person “the court may deem capable of giving information respecting the bankrupt, his...

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