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Li Xiao Yi And Another v Alan Chung Wah Tang And Another

Judgment Cited authorities 1 Cited in 2 Precedent Map Related
Vincent
Judgment Date02 August 2018
Neutral Citation[2018] HKCFI 1811
Judgement NumberHCB345/2001
Citation[2018] 3 HKLRD 765
Year2018
Subject MatterBankruptcy Proceedings
CourtCourt of First Instance (Hong Kong)
HCB345F/2001 LI XIAO YI AND ANOTHER v. ALAN CHUNG WAH TANG AND ANOTHER

HCB 345/2001

[2018] HKCFI 1811

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)
BETWEEN
LI XIAO YI 1st Applicant
LELALERTSUPHAKUN SURASAK 2nd Applicant

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

____________

Before: Hon G Lam J in Chambers

Date of Hearing: 14 June 2018

Date of Further Written Submissions: 5 and 10 July 2018

Date of Decision: 2 August 2018

______________

D E C I S I O N

______________


1. I have before me a summons dated 14 May 2018 taken out by the two Applicants herein, as amended with leave on 14 June 2018.

2. One of the reliefs sought is that, insofar as necessary, leave be granted to the Applicants to appeal from my decision dated 30 April 2018 (“the Decision”) which dismissed the discovery applications made by the Applicants in support of their application for the removal of the trustees in bankruptcy in this matter, who are the Respondents herein.

3. Another relief, sought in the alternative, is that a direction be given that the Decision is one falling within Order 59 r 4(1)(b) of the Rules of the High Court (Cap 4A) and s 98(2) of the Bankruptcy Ordinance (Cap 6) in respect of which no leave to appeal is required. This proposed “direction” is odd because it does not fall within the type of direction that this court is empowered by Order 59 r 21(3) to give, and its juridical nature and status are in some doubt. It seems to me that if leave to appeal is as a matter of law not required, I should simply dismiss the application for leave to appeal on that basis, rather than give the direction sought.

4. On the question whether leave to appeal is required, I raised a number of matters at the hearing which the Applicants have since addressed by supplemental written submissions. Although the Official Receiver did not take part in the application, after the hearing I asked for her assistance on this question of law and I am grateful for the submissions made in response, signed by Ms Ophelia Lok (Acting Assistant Official Receiver), on behalf of the Official Receiver.

5. There is no direct authority on the point. The question has arisen because of the different legislative provisions found in the Bankruptcy Ordinance on the one hand and in the High Court Ordinance and the Rules of the High Court on the other. S 98(2) of the Bankruptcy Ordinance provides as follows:

“ Every order of the court or the Registrar shall be subject to appeal to the Court of Appeal. The notice of appeal shall be served within the time for appealing against an order made in the matter of any bankruptcy as specified in Order 59, rule 4(1)(b) of the Rules of the High Court (Cap. 4 sub. leg. A).”

6. Section 13(2) of the High Court Ordinance (Cap 4) provides:

“The civil jurisdiction of the Court of Appeal shall consist of—

(a) appeals from any judgment or order of the Court of First Instance in any civil cause or matter;

(b) appeals under section 63 of the District Court Ordinance (Cap. 336); and

(c) any other jurisdiction conferred on it by any law.”

7. Section 14(1) provides:

“Subject to subsection (3) and section 14AA, an appeal shall lie as of right to the Court of Appeal from every judgment or order of the Court of First Instance in any civil cause or matter.”

8. Section 14AA(1) provides as follows:

“ Except as provided by rules of court, no appeal lies to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted by the Court of First Instance or the Court of Appeal.”

9. When one turns to the rules of court, one finds that Order 59 r 4(1) provides as follows:

“ (1) Except as otherwise provided by these rules, a notice of appeal must be served under rule 3(5) within —

(a) in the case where leave to appeal to the Court of Appeal is required under section 14AA (not being a case to which sub‑paragraph (b) applies) or section 14(3)(e) or (f) of the Ordinance, 7 days after the date on which leave to appeal is granted;

(b) in the case of an appeal from a judgment, order or decision given or made in the matter of the winding up of a company, or in the matter of any bankruptcy, 28 days from the date of the judgment, order or decision; and

(c) in any other case, 28 days from the date of the judgment, order or decision concerned.”

10. Mr Justin Ho who appeared for the Applicants submitted that the meaning of the statutes and the rules taken together is that any order falling within s 98(2) may be appealed to the Court of Appeal as of right without leave. The Official Receiver also submitted that it is more likely that the legislative intention is not for s 14AA to apply to a judgment or order in bankruptcy proceedings, against which an appeal therefore remains as of right. Mr Tin who appeared for the Respondents submitted that leave is required, and drew to my attention two cases which I deal with in §20 below.

11. Having considered the submissions made to me, I agree with the Applicants and the Official Receiver that leave is not required. The reasons are as follows.

12. There is no dispute that the Decision is an interlocutory one. The Decision dismissed two discovery summonses taken out by the Applicants in the bankruptcy proceedings (HCB 345/2001) for the purposes of their application to remove the trustees in bankruptcy under s 96(2) of the Bankruptcy Ordinance also taken out in HCB 345/2001. The basis of the Decision was that the Applicants did not...

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2 cases
  • 有關李文標的事宜
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 22 de outubro de 2021
    ...第59號命令第4(1)(b) 條規則，上訴人必須在判決日期起計的28天內送達上訴通知書。見Re Lee Siu Fung Siegfried (No 2) [2018] 3 HKLRD 765一案，高等法院原訟法庭法官林雲浩（當時官階）在第11至22段的裁決。 5. 《高等法院規則》第59號命令第3(5) 分析 6. 李先生必須在判決日期起計的28天內（即2021年5月21日或之前）送達上訴通知書給呈請人及破產管理署署長，而無需向法庭申請上訴許可。故此，本傳票要求批出逾期上訴許可，在程...
  • Ip Pui Lam Arthur And Another v Alan Chung Wah Tang And Others
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 27 de agosto de 2019
    ...lodged a supplemental submission to draw to the Court’s attention the decision of Godfrey Lam J in Re Lee Siu Fung Siegfried (No 2) [2018] 3 HKLRD 765, where the learned Judge held that the order against which the appeal was brought was a dismissal of an application for discovery made by th......

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