RE LU YONGLIANG
- Citation
- [2022] HKCFI 1251
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of First Instance
- Decision
- 25 April 2022
- Posture
- Bankruptcy / Application for Non Commencement Order (decision)
- Case number
- HCB7182/2019
- Language
- English
More details
- Court
- Court of First Instance
- Decision
- 25 April 2022
- Posture
- Bankruptcy / Application for Non Commencement Order (decision)
- Case number
- HCB7182/2019
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
Given the bankrupt's deliberate non‑cooperation—failure to attend or make himself available despite multiple express requests and solicitors' inability to confirm transmission of those requests or the client's whereabouts—the court exercised its discretion and made the normal non‑commencement order.
Court disposition
Non-commencement order made
Orders
- Non-commencement order made (normal form)
- Attendance of the Official Receiver excused
02
Material facts
Parties
Joint and several trustees
Applicants / Trustees Counsel: Ms Iris Lee (Ronald Tong & Co)Lu Yongliang
Bankrupt Counsel: Mr Yan Kwok Wing (Chan, Wong & Yip)Official Receiver
Official Receiver03
Procedural history
Posture
Bankruptcy / Application for Non Commencement Order (decision)
04
Questions and positions
Legal issues
- 01
Whether a non-commencement order should be made where the bankrupt fails to attend or make himself available for interview
- 02
Whether the solicitors' failure to confirm passing on requests or to know the client's whereabouts permits an adverse inference of non-cooperation
- 03
Whether the Official Receiver's request was complied with and its effect on the trustees' application
Party arguments
- Applicant
- The trustees sought a non-commencement order because the bankrupt repeatedly failed to make himself available for interview despite written requests (letters dated 30 September 2021, 25 October 2021 and 15 November 2021) and despite the Official Receiver's involvement.
- Respondent
- The bankrupt opposed the application through counsel; his solicitors gave vague evidence about whether they passed on the trustees' request and could not identify the client's location beyond that he was not in Hong Kong.
05
Court’s reasoning
Legal principles
- 01
Bankruptcy Ordinance (Chapter 6)
Court may make a non-commencement order where a bankrupt refuses or fails to cooperate with trustees' inquiries and to attend interviews
- 02
This decision (Harris J, High Court, 25 April 2022)
Where solicitors cannot show they conveyed requests or secured client cooperation, the court may draw adverse inferences and exercise its discretion against the bankrupt
06
Ratio, limits and disposition
Ratio decidendi
Given the bankrupt's deliberate non‑cooperation—failure to attend or make himself available despite multiple express requests and solicitors' inability to confirm transmission of those requests or the client's whereabouts—the court exercised its discretion and made the normal non‑commencement order.
Obiter and limits
- Solicitors must ensure clear communication with clients; vague recollection that a message was passed on is insufficient.
- The court expressed the distinct impression that the client was attempting to avoid cooperating with the trustees.
Court disposition
Non-commencement order made
- Non-commencement order made (normal form)
- Attendance of the Official Receiver excused
Source and reliance status
Court of First Instance · 25 April 2022
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Judgment reading view
Judgment text
The complete available source text.
Court of First Instance
Judgment· 25 April 2022
HCB 7182/2019 [2022] HKCFI 1251
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE BANKRUPTCY PROCEEDINGS NO 7182 OF 2019 ____ IN THE MATTER OF the Bankruptcy Ordinance (Chapter 6) and IN THE MATTER OF Lu Yongliang ____ Before: Hon Harris J in Court Date of Hearing: 25 April 2022 Date of Decision: 25 April 2022 ____
D E C I S I O N ____ I have an application by the Trustees in this bankruptcy proceeding for a non-commencement order. The factual foundation for the application is that the bankrupt has not made himself available to attend an interview with the Trustees despite the Trustees explaining that this would be necessary (a letter dated 25 October 2021) a specific request to the bankrupt’s solicitors (a letter dated 15 November 2021) and an express request by the Official Receiver by a letter dated 30 September 2021. The position today is that the bankrupt has opposed the application through counsel. It is entirely unsatisfactory that despite an express request to the bankrupt’s solicitors in the letter dated 15 November 2021, the solicitors’ recollection of whether or not they passed on the request that they inform their client to contact the Trustees is vague. Also, it would appear that although they are in contact with their client they do not know where he is other than that he is not in Hong Kong. The distinct impression I have is that their client is trying to avoid cooperating and I will make the normal non-commencement order. (Jonathan Harris) Judge of the Court of First Instance High Court Ms Iris Lee, of Ronald Tong & Co, for the joint and several trustees Mr Yan Kwok Wing, instructed by Chan, Wong & Yip, for the Bankrupt Attendance of the Official Receiver was excused
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