由此
A A
HCB 11202/2004
B B
C
IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
COURT OF FIRST INSTANCE
E
BANKRUPTCY PROCEEDINGS NO. 11202 OF 2004 E
_________________________
F F
G Re: Mohammad Ameen G
H H
_________________________
I Coram : Master J. Ko in Court I
J
Date of Hearing : 20 April 2009 J
Date of Decision : 24 April 2009
K K
L
_______________ L
DECISION
M _______________ M
N N
1. On 19 November 2004, Mr Ameen petitioned for his own
O bankruptcy and a bankruptcy order was made on 18 January 2005. On 22 O
April 2005, Messrs Wong Ka Sek and Wong Ka Lam King were appointed
P P
trustees of his property.
Q Q
2. Under section 30A of the Bankruptcy Ordinance (Cap.6), a
R R
bankrupt is automatically discharged from bankruptcy upon the expiration of
S 4 years from the commencement of the bankruptcy, unless the court is S
satisfied on application that a valid objection based on one or more of the
T T
U U
V V
由此 - 2 -
A A
grounds set out in section 30A(4) has been made. If there is a valid objection,
B
the bankruptcy period may be extended for a maximum of 4 years. B
C C
3. This is the trustees’ application for an order that the bankruptcy
D period of the bankrupt should cease to run for a period not exceeding 4 years. D
The application is opposed by the bankrupt.
E E
F 4. In the absence of any objection, the bankrupt would have been F
discharged on 18 January 2009. When the application first came before the
G G
court on 16 January 2009, an interim order was made suspending the
H automatic discharge of the bankrupt pending the disposal of this application. H
I I
5. The bankrupt is absent at the hearing on 20 April 2009. By a
J written statement dated 24 March 2009, the bankrupt acknowledges receipt J
of the papers and informs the court that he is in the United Kingdom and
K K
elects not to attend the hearing.
L L
The application
M M
N 6. The trustees’ application is based on the following grounds: N
O O
(a) that the bankrupt has failed to co-operate in the administration
P of his estate (section 30A(4)(c)); P
Q Q
(b) that the conduct of the bankrupt in respect of the period after the
R commencement of his bankruptcy has been unsatisfactory R
(section 30A(4)(d)); and
S S
T T
U U
V V
由此 - 3 -
A A
(c) that the bankrupt has failed to prepare an annual report of his
B
earnings and acquisitions for the trustee (section 30A(4)(h)). B
C C
7. The facts in support of the application have been set out in an
D affirmation filed by the trustees. These can be summarized as follows: D
E E
(a) According to the statement of affairs filed by the bankrupt at the
F time of the petition, he was indebted to the extent of F
$1,834,253.40.
G G
H (b) After the making of the bankruptcy order, the bankrupt was H
interviewed by the representative of the Official Receiver on 20
I I
January 2005. The bankrupt claimed he had been unemployed
J since October 2002. He was given a booklet entitled “Simple J
Guide on Bankruptcy” setting out his duties and obligations as a
K K
bankrupt, and four blank “Annual Statement of Earnings and
L Property Acquired” forms for completion and return on each L
anniversary of the making of the bankruptcy order.
M M
N (c) On 13 July 2005, the bankrupt was further interviewed by the N
staff of the trustees. He claimed he had been working as a
O O
part-time interpreter for the Government since November 2004.
P P
(d) He was interviewed again on 29 August 2005 and his monthly
Q Q
income and expenses were assessed at $408 and $4,700
R respectively. R
S S
(e) The bankrupt has failed to submit income proof to the trustees
T T
since April 2007.
U U
V V
由此 - 4 -
A A
B
(f) The bankrupt has also failed to submit annual statement of his B
earnings and acquisitions to the trustees at each anniversary of
C C
his bankruptcy.
D D
(g) The trustees have attempted to contact the bankrupt but to no
E E
avail.
F F
(h) To date, the bankrupt has made no contribution to his
G G
bankruptcy estate. Without full information on the bankrupt’s
H income and expenditure, the trustees had been unable to H
ascertain the amount of contribution the bankrupt should have
I I
made to his estate.
J J
The opposition
K K
L 8. The bankrupt has put forward the following facts and arguments L
in his written statement to oppose the application:
M M
N (a) He did submit monthly statements to the trustees up to 2007. N
He did not submit further statement because there was no
O O
activity in his bank account.
P P
He has exhibited copies of his bank statements to his written
Q Q
statement to confirm that there has indeed been no activity and
R that the current balance stands at $47.17 only. R
S S
(b) He did not submit annual statements of his earnings and
T T
acquisitions because the trustees had told him he did not have to
U U
V V
由此 - 5 -
A A
do so as his circumstances were such that there was nothing to
B
be put in the statements. He argues that if the trustees were so B
concerned about his annual statements, they would have written
C C
to him to demand for them.
D D
(c) He has moved to the United Kingdom and is currently staying
E E
with his children. He did not inform the trustees of his
F departure because he did not know if he would eventually settle F
in the United Kingdom.
G G
H (d) He challenges the trustees to state the frequency and nature of H
their attempts to contact him since April 2007. He says he has
I I
arranged for his mails sent to his former address in Hunghom to
J be forwarded to him and he remains contactable by email. J
K K
(e) He is unable to make any contribution to his bankruptcy estate.
L He has not been able to obtain employment and is supported by L
his children and state benefits in the United Kingdom.
M M
According to the bank statements enclosed in the written
N statement, the current balance of his bank account is only N
$47.17.
O O
P (f) His creditors have not objected to his automatic discharge. No P
benefit would be achieved for granting the trustees’ application.
Q Q
R Discussion R
S S
9. Mr. King Wong, one of the trustees, submits at the hearing that
T T
the complaint against the bankrupt is three-fold:
U U
V V
由此 - 6 -
A A
B
(a) failure to provide income proof; B
C C
(b) failure to submit annual statements; and
D D
(c) failure to inform the trustees of his departure from Hong Kong.
E E
F 10. In relation to the first and second complaints, the bankrupt has F
since provided to the trustees copies of his bank statements and an IR56C
G G
form detailing his income presumably as a part-time interpreter. The
H trustees are now satisfied with the new information and no further H
investigation is considered necessary.
I I
J 11. Mr. Wong clarifies at the hearing that the trustees did not have J
the bankrupt’s email address and had mostly attempted to contact him by
K K
telephone. The trustees might have also sent Chinese letters to the bankrupt
L but since the bankrupt may not read Chinese, the trustees will not rely on L
these letters as evidence against the bankrupt in this application.
M M
N 12. Mr. Wong denies that the trustees had told the bankrupt that he N
did not have to submit annual statements if he had nothing to report on. In
O O
any event, I find the bankrupt’s allegation most incredible. First, section
P 43A(6) of the Bankruptcy Ordinance provides that an undischarged bankrupt P
shall submit to the trustee on each anniversary of the making of the
Q Q
bankruptcy order against him, a statement of his earnings during the
R preceding year and details of any property he acquired during that period. R
The obligation is not prompted by the trustee’s demand or dependent on
S S
whether there is anything to report on. I find it very unlikely that a
T T
professional trustee (such as the trustees in this case) would have
U U
V V
由此 - 7 -
A A
misunderstood the requirement and misrepresented it to a bankrupt.
B
Secondly, the bankrupt’s case is inconsistent with the fact that he had been B
provided with a copy of “Simple Guide on Bankruptcy” detailing his duties
C C
and obligations as a bankrupt and four blank annual statements. The trustees
D have exhibited in their affirmation the bankrupt’s signed acknowledgment D
for the receipt of these documents. Thirdly, it is not true that the bankrupt
E E
had nothing to report on. The IR56C form recently provided by him shows
F that the bankrupt had received a modest income during the period between 1 F
April 2007 and 31 March 2008 and the bankrupt is obliged to report such
G G
income.
H H
13. It is clear from the evidence that the bankrupt failed to submit
I I
income proof and to notify his trustees of his departure from Hong Kong. He
J has failed to provide annual statements to the trustees. In my view, the J
bankrupt has failed to co-operate in the administration of his estate and his
K K
conduct in respect of the period after the commencement of his bankruptcy
L has been unsatisfactory. An objection based on section 30A(4)(c), (d) and (h) L
has been made out.
M M
N 14. The bankrupt has submitted that he has suffered humiliation and N
great hardship as a consequence of his bankruptcy. He has been in grave
O O
financial difficulties in terms of his income and has still not been able to
P re-establish himself. He remarks that he is an honest and genuine person but P
is still suffering from the mistakes he made in the past. He asks rhetorically
Q Q
what benefit will be achieved by granting the application.
R R
15. A short answer to the bankrupt’s query is that his conduct has
S S
fallen short of what was required of him as a bankrupt. Without his
T T
co-operation and because of his failure to comply with his statutory duties,
U U
V V
由此 - 8 -
A A
the trustees had been unable to assess whether any contribution could have
B
been made by him. B
C C
16. The bankrupt has only recently amended his wrongs by
D providing the relevant information to his trustees. This is evidence of his D
belated co-operation in the administration of his estate. Based on the new
E E
information, the trustees have assessed that the bankrupt would not be
F required to make any contribution to his estate. The trustees have fairly F
conceded that, in those circumstances, the bankrupt’s failures have not
G G
materially prejudiced his creditors and thus may not be regarded as serious.
H H
17. I bear in mind the main objectives of our modern bankruptcy
I I
legislation, namely:
J J
(a) the rehabilitation of the bankrupt by allowing him to resume a
K K
normal life in society after his bankruptcy; and
L L
(b) the public interest in ensuring that the return of the bankrupt to
M M
the commercial world will not carry with it the unacceptable
N risk to persons likely to be engaged in commercial relations N
with him and that commercial morality is preserved.
O O
P 18. In my view, the society is not prepared to condone the P
bankrupt’s conduct in the circumstances of this case without any expression
Q Q
of disapproval. The bankrupt’s conduct is so unsatisfactory that, in the
R exercise of my discretion, I should suspend his automatic discharge albeit for R
a short period of time.
S S
T T
U U
V V
由此 - 9 -
A A
19. The trustees have advertised notice of their intention to object to
B
the bankrupt’s discharge in newspapers and have received no objection from B
the bankrupt’s creditors.
C C
D Conclusion D
E E
20. In all the circumstances of this case, I order that the relevant
F period shall cease to run for a period of 6 months from 17 January 2009. F
G G
H H
I I
J (J. Ko) J
Master of the High Court
K K
L L
Mr. Wong Ka Lam King, the trustees, appearing in person
M M
The bankrupt, acting in person, absent
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
由此
A A
HCB 11202/2004
B B
C
IN THE HIGH COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
COURT OF FIRST INSTANCE
E
BANKRUPTCY PROCEEDINGS NO. 11202 OF 2004 E
_________________________
F F
G Re: Mohammad Ameen G
H H
_________________________
I Coram : Master J. Ko in Court I
J
Date of Hearing : 20 April 2009 J
Date of Decision : 24 April 2009
K K
L
_______________ L
DECISION
M _______________ M
N N
1. On 19 November 2004, Mr Ameen petitioned for his own
O bankruptcy and a bankruptcy order was made on 18 January 2005. On 22 O
April 2005, Messrs Wong Ka Sek and Wong Ka Lam King were appointed
P P
trustees of his property.
Q Q
2. Under section 30A of the Bankruptcy Ordinance (Cap.6), a
R R
bankrupt is automatically discharged from bankruptcy upon the expiration of
S 4 years from the commencement of the bankruptcy, unless the court is S
satisfied on application that a valid objection based on one or more of the
T T
U U
V V
由此 - 2 -
A A
grounds set out in section 30A(4) has been made. If there is a valid objection,
B
the bankruptcy period may be extended for a maximum of 4 years. B
C C
3. This is the trustees’ application for an order that the bankruptcy
D period of the bankrupt should cease to run for a period not exceeding 4 years. D
The application is opposed by the bankrupt.
E E
F 4. In the absence of any objection, the bankrupt would have been F
discharged on 18 January 2009. When the application first came before the
G G
court on 16 January 2009, an interim order was made suspending the
H automatic discharge of the bankrupt pending the disposal of this application. H
I I
5. The bankrupt is absent at the hearing on 20 April 2009. By a
J written statement dated 24 March 2009, the bankrupt acknowledges receipt J
of the papers and informs the court that he is in the United Kingdom and
K K
elects not to attend the hearing.
L L
The application
M M
N 6. The trustees’ application is based on the following grounds: N
O O
(a) that the bankrupt has failed to co-operate in the administration
P of his estate (section 30A(4)(c)); P
Q Q
(b) that the conduct of the bankrupt in respect of the period after the
R commencement of his bankruptcy has been unsatisfactory R
(section 30A(4)(d)); and
S S
T T
U U
V V
由此 - 3 -
A A
(c) that the bankrupt has failed to prepare an annual report of his
B
earnings and acquisitions for the trustee (section 30A(4)(h)). B
C C
7. The facts in support of the application have been set out in an
D affirmation filed by the trustees. These can be summarized as follows: D
E E
(a) According to the statement of affairs filed by the bankrupt at the
F time of the petition, he was indebted to the extent of F
$1,834,253.40.
G G
H (b) After the making of the bankruptcy order, the bankrupt was H
interviewed by the representative of the Official Receiver on 20
I I
January 2005. The bankrupt claimed he had been unemployed
J since October 2002. He was given a booklet entitled “Simple J
Guide on Bankruptcy” setting out his duties and obligations as a
K K
bankrupt, and four blank “Annual Statement of Earnings and
L Property Acquired” forms for completion and return on each L
anniversary of the making of the bankruptcy order.
M M
N (c) On 13 July 2005, the bankrupt was further interviewed by the N
staff of the trustees. He claimed he had been working as a
O O
part-time interpreter for the Government since November 2004.
P P
(d) He was interviewed again on 29 August 2005 and his monthly
Q Q
income and expenses were assessed at $408 and $4,700
R respectively. R
S S
(e) The bankrupt has failed to submit income proof to the trustees
T T
since April 2007.
U U
V V
由此 - 4 -
A A
B
(f) The bankrupt has also failed to submit annual statement of his B
earnings and acquisitions to the trustees at each anniversary of
C C
his bankruptcy.
D D
(g) The trustees have attempted to contact the bankrupt but to no
E E
avail.
F F
(h) To date, the bankrupt has made no contribution to his
G G
bankruptcy estate. Without full information on the bankrupt’s
H income and expenditure, the trustees had been unable to H
ascertain the amount of contribution the bankrupt should have
I I
made to his estate.
J J
The opposition
K K
L 8. The bankrupt has put forward the following facts and arguments L
in his written statement to oppose the application:
M M
N (a) He did submit monthly statements to the trustees up to 2007. N
He did not submit further statement because there was no
O O
activity in his bank account.
P P
He has exhibited copies of his bank statements to his written
Q Q
statement to confirm that there has indeed been no activity and
R that the current balance stands at $47.17 only. R
S S
(b) He did not submit annual statements of his earnings and
T T
acquisitions because the trustees had told him he did not have to
U U
V V
由此 - 5 -
A A
do so as his circumstances were such that there was nothing to
B
be put in the statements. He argues that if the trustees were so B
concerned about his annual statements, they would have written
C C
to him to demand for them.
D D
(c) He has moved to the United Kingdom and is currently staying
E E
with his children. He did not inform the trustees of his
F departure because he did not know if he would eventually settle F
in the United Kingdom.
G G
H (d) He challenges the trustees to state the frequency and nature of H
their attempts to contact him since April 2007. He says he has
I I
arranged for his mails sent to his former address in Hunghom to
J be forwarded to him and he remains contactable by email. J
K K
(e) He is unable to make any contribution to his bankruptcy estate.
L He has not been able to obtain employment and is supported by L
his children and state benefits in the United Kingdom.
M M
According to the bank statements enclosed in the written
N statement, the current balance of his bank account is only N
$47.17.
O O
P (f) His creditors have not objected to his automatic discharge. No P
benefit would be achieved for granting the trustees’ application.
Q Q
R Discussion R
S S
9. Mr. King Wong, one of the trustees, submits at the hearing that
T T
the complaint against the bankrupt is three-fold:
U U
V V
由此 - 6 -
A A
B
(a) failure to provide income proof; B
C C
(b) failure to submit annual statements; and
D D
(c) failure to inform the trustees of his departure from Hong Kong.
E E
F 10. In relation to the first and second complaints, the bankrupt has F
since provided to the trustees copies of his bank statements and an IR56C
G G
form detailing his income presumably as a part-time interpreter. The
H trustees are now satisfied with the new information and no further H
investigation is considered necessary.
I I
J 11. Mr. Wong clarifies at the hearing that the trustees did not have J
the bankrupt’s email address and had mostly attempted to contact him by
K K
telephone. The trustees might have also sent Chinese letters to the bankrupt
L but since the bankrupt may not read Chinese, the trustees will not rely on L
these letters as evidence against the bankrupt in this application.
M M
N 12. Mr. Wong denies that the trustees had told the bankrupt that he N
did not have to submit annual statements if he had nothing to report on. In
O O
any event, I find the bankrupt’s allegation most incredible. First, section
P 43A(6) of the Bankruptcy Ordinance provides that an undischarged bankrupt P
shall submit to the trustee on each anniversary of the making of the
Q Q
bankruptcy order against him, a statement of his earnings during the
R preceding year and details of any property he acquired during that period. R
The obligation is not prompted by the trustee’s demand or dependent on
S S
whether there is anything to report on. I find it very unlikely that a
T T
professional trustee (such as the trustees in this case) would have
U U
V V
由此 - 7 -
A A
misunderstood the requirement and misrepresented it to a bankrupt.
B
Secondly, the bankrupt’s case is inconsistent with the fact that he had been B
provided with a copy of “Simple Guide on Bankruptcy” detailing his duties
C C
and obligations as a bankrupt and four blank annual statements. The trustees
D have exhibited in their affirmation the bankrupt’s signed acknowledgment D
for the receipt of these documents. Thirdly, it is not true that the bankrupt
E E
had nothing to report on. The IR56C form recently provided by him shows
F that the bankrupt had received a modest income during the period between 1 F
April 2007 and 31 March 2008 and the bankrupt is obliged to report such
G G
income.
H H
13. It is clear from the evidence that the bankrupt failed to submit
I I
income proof and to notify his trustees of his departure from Hong Kong. He
J has failed to provide annual statements to the trustees. In my view, the J
bankrupt has failed to co-operate in the administration of his estate and his
K K
conduct in respect of the period after the commencement of his bankruptcy
L has been unsatisfactory. An objection based on section 30A(4)(c), (d) and (h) L
has been made out.
M M
N 14. The bankrupt has submitted that he has suffered humiliation and N
great hardship as a consequence of his bankruptcy. He has been in grave
O O
financial difficulties in terms of his income and has still not been able to
P re-establish himself. He remarks that he is an honest and genuine person but P
is still suffering from the mistakes he made in the past. He asks rhetorically
Q Q
what benefit will be achieved by granting the application.
R R
15. A short answer to the bankrupt’s query is that his conduct has
S S
fallen short of what was required of him as a bankrupt. Without his
T T
co-operation and because of his failure to comply with his statutory duties,
U U
V V
由此 - 8 -
A A
the trustees had been unable to assess whether any contribution could have
B
been made by him. B
C C
16. The bankrupt has only recently amended his wrongs by
D providing the relevant information to his trustees. This is evidence of his D
belated co-operation in the administration of his estate. Based on the new
E E
information, the trustees have assessed that the bankrupt would not be
F required to make any contribution to his estate. The trustees have fairly F
conceded that, in those circumstances, the bankrupt’s failures have not
G G
materially prejudiced his creditors and thus may not be regarded as serious.
H H
17. I bear in mind the main objectives of our modern bankruptcy
I I
legislation, namely:
J J
(a) the rehabilitation of the bankrupt by allowing him to resume a
K K
normal life in society after his bankruptcy; and
L L
(b) the public interest in ensuring that the return of the bankrupt to
M M
the commercial world will not carry with it the unacceptable
N risk to persons likely to be engaged in commercial relations N
with him and that commercial morality is preserved.
O O
P 18. In my view, the society is not prepared to condone the P
bankrupt’s conduct in the circumstances of this case without any expression
Q Q
of disapproval. The bankrupt’s conduct is so unsatisfactory that, in the
R exercise of my discretion, I should suspend his automatic discharge albeit for R
a short period of time.
S S
T T
U U
V V
由此 - 9 -
A A
19. The trustees have advertised notice of their intention to object to
B
the bankrupt’s discharge in newspapers and have received no objection from B
the bankrupt’s creditors.
C C
D Conclusion D
E E
20. In all the circumstances of this case, I order that the relevant
F period shall cease to run for a period of 6 months from 17 January 2009. F
G G
H H
I I
J (J. Ko) J
Master of the High Court
K K
L L
Mr. Wong Ka Lam King, the trustees, appearing in person
M M
The bankrupt, acting in person, absent
N N
O O
P P
Q Q
R R
S S
T T
U U
V V