IP PUI LAM ARTHUR AND ANOTHER v. ALAN CHUNG WAH TANG AND OTHERS

IP PUI LAM ARTHUR AND ANOTHER v. ALAN CHUNG WAH TANG AND OTHERS

The court allowed the production order under section 29 because the trustees demonstrated that the documents were reasonably required for them to perform their functions and there was a prima facie case that the banks held relevant records; the court balanced the trustees' investigative needs against potential oppression and found disclosure proportionate; the court released the implied undertaking because reciprocal disclosure to the UK trustees would assist both insolvency administrations and serve the administration of justice in exceptional circumstances.

Citation
IP PUI LAM ARTHUR AND ANOTHER v. ALAN CHUNG WAH TANG AND OTHERS
Parties
Applicant (joint and Several Trustee in Bankruptcy): IP PUI LAM ARTHUR; Applicant (joint and Several Trustee in Bankruptcy): IP PUI SUM; 1st Respondent: HANG SENG BANK LIMITED; 2nd Respondent: THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED; 3rd Respondent: THE BANK OF EAST ASIA, LIMITED; 4th Respondent: STANDARD CHARTERED BANK (HONG KONG) LIMITED; 5th Respondent: DBS BANK (HONG KONG) LIMITED; 6th Respondent: WING LUNG BANK LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
30 June 2015
Case Number
HCB3819/2011
Procedural Posture
Bankruptcy Proceedings / Application for Production of Documents Under Section 29 and Application for Release of Implied Undertaking; Hearing and Reasons for Decision
Outcome
Application allowed in full
Legal Topics
Section 29 Bankruptcy Ordinance, Production of Bankers Books, Implied Undertaking and Its Release, Private Examination, Tracing Assets Via Nominees, Disclosure to Foreign Trustees
Source Language
EN
Bankruptcy Insolvency Civil Procedure Banking Law Trusts and Trustees Asset Tracing and Recovery Section 29 Bankruptcy Ordinance Production of Bankers Books +4 more

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Parties

IP PUI LAM ARTHUR

Applicant (joint and Several Trustee in Bankruptcy)

IP PUI SUM

Applicant (joint and Several Trustee in Bankruptcy)

HANG SENG BANK LIMITED

1st Respondent

THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED

2nd Respondent

THE BANK OF EAST ASIA, LIMITED

3rd Respondent

STANDARD CHARTERED BANK (HONG KONG) LIMITED

4th Respondent

DBS BANK (HONG KONG) LIMITED

5th Respondent

WING LUNG BANK LIMITED

6th Respondent

Procedural Posture

Bankruptcy Proceedings / Application for Production of Documents Under Section 29 and Application for Release of Implied Undertaking; Hearing and Reasons for Decision

Legal Issues

  1. 1 Whether the trustees established reasonable requirement and a prima facie case to order production under s29 of the Bankruptcy Ordinance
  2. 2 Whether the scope and period of disclosure demanded by the trustees was disproportionate or oppressive
  3. 3 Whether implied undertakings attached to documents obtained in the proceedings should be released to the UK trustees

Ratio Decidendi

The court allowed the production order under section 29 because the trustees demonstrated that the documents were reasonably required for them to perform their functions and there was a prima facie case that the banks held relevant records; the court balanced the trustees' investigative needs against potential oppression and found disclosure proportionate; the court released the implied undertaking because reciprocal disclosure to the UK trustees would assist both insolvency administrations and serve the administration of justice in exceptional circumstances.

Court Disposition

Application allowed in full

Orders

  • Production order granted against the six respondent banks for the documents and banking records specified in the schedule to the summons dated 3 October 2014
  • Production to include account records of specified persons (including Rubya Gafoor, Dr Michael Kuo, Abdul Gafoor, Cynthia Lai Gafoor, Lam Yim King, Kellie Chan and Wendy Yim) for the relevant period (principally 2005-2010) as set out in the judgment