RE CHOW KAM FAI DAVID

RE CHOW KAM FAI DAVID

Order 38 r2(3) applies to Hong Kong bankruptcy proceedings; the Debtor, who asserts a change of domicile, bears the burden to prove it on the balance of probabilities; because the jurisdictional issues turn on the Debtor's subjective intention and there are disputed material facts and objective circumstances that go to credibility, the court must order the Debtor to attend for cross-examination; video-link was refused because the Debtor sought to avoid enforcement and arrest and no good reason justified departure from personal attendance; Debtor's affidavit is excluded unless leave granted if he defaults attendance.

Citation
RE CHOW KAM FAI DAVID
Parties
Petitioner (judgment Creditor): RAMBAS MARKETING CO., LLC; Debtor: CHOW KAM FAI, DAVID
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 September 2003
Case Number
HCB1364/2003
Procedural Posture
Bankruptcy Petition / Pre Hearing Interlocutory Application for Cross Examination Under Order 38 R2(3)
Outcome
Application granted in part: Debtor ordered to attend for cross-examination; application for video-link refused; Debtor's affidavit excluded if he does not attend without leave; costs awarded to Petitioner.
Legal Topics
Domicile, Jurisdiction, Cross Examination of Affidavit Deponent, Video Link Testimony, Order 38 R2(3), Bankruptcy Ordinance S4
Source Language
EN
Bankruptcy Civil Procedure Evidence Private International Law Enforcement Domicile Jurisdiction Cross Examination of Affidavit Deponent +3 more

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Parties

RAMBAS MARKETING CO., LLC

Petitioner (judgment Creditor)

CHOW KAM FAI, DAVID

Debtor

Procedural Posture

Bankruptcy Petition / Pre Hearing Interlocutory Application for Cross Examination Under Order 38 R2(3)

Legal Issues

  1. 1 Whether Court has power under Order 38 r2(3) to order attendance for cross-examination in bankruptcy proceedings
  2. 2 Whether Court should exercise discretion to order Debtor to attend for cross-examination
  3. 3 Whether cross-examination may be conducted via video link

Ratio Decidendi

Order 38 r2(3) applies to Hong Kong bankruptcy proceedings; the Debtor, who asserts a change of domicile, bears the burden to prove it on the balance of probabilities; because the jurisdictional issues turn on the Debtor's subjective intention and there are disputed material facts and objective circumstances that go to credibility, the court must order the Debtor to attend for cross-examination; video-link was refused because the Debtor sought to avoid enforcement and arrest and no good reason justified departure from personal attendance; Debtor's affidavit is excluded unless leave granted if he defaults attendance.

Court Disposition

Application granted in part: Debtor ordered to attend for cross-examination; application for video-link refused; Debtor's affidavit excluded if he does not attend without leave; costs awarded to Petitioner.

Orders

  • Debtor to attend the Court for cross-examination on his affidavit
  • If Debtor does not attend, his affidavit shall not be used as evidence without the leave of the Court