KU CHU KEUNG; Reported in: [2006] HKCLRT 171
有關顧主強的事宜; Reported in: [2007] 2 HKLRD 292; [2006] HKCLRT 155
[English Translation – 英譯本]
HCB 3394/2005
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
BANKRUPTCY PROCEEDINGS NO. 3394 OF 2005
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| IN THE MATTER OF Ku Chu Keung (顧主強) (a debtor)and
IN THE MATTER OF an ex parte application by DBS Bank (Hong Kong) Limited formerly t/a Dao Heng Bank Limited (a creditor) |
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Before: Deputy High Court Judge L.Chan in Court
Dates of Hearing: 25 January, 25 May, 29 May and 9 June 2006
Date of Judgment: 12 June 2006
Date of Written Judgment: 12 June 2006
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JUDGMENT
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1. The Respondent (“Mr Ku”) once owned a credit card issued by the Petitioner (“the Bank”). The Bank claimed that there were outstanding balances in Mr Ku’s credit card account, but this was denied by Mr Ku. The Bank therefore commenced proceedings against Mr Ku in the District Court (DCCJ 209/2003) for the recovery of the outstanding sums.
2. Mr Ku applied to the District Court for an order requiring the Bank to supply further and better particulars of 24 items in the Statement of Claim. On 17 June 2004, having heard the application, a Master of the District Court dismissed the application and ordered Mr Ku to immediately pay $24,300 being the Bank’s costs. Mr Ku failed to comply with the order.
3. The solicitor for the Bank said that he served a statutory demand on Mr Ku on 17 January 2005 outside the ground floor entrance to the District Court building, but Mr Ku still failed to pay any costs. On 5 May 2005, therefore, the Bank issued the present bankruptcy petition against Mr Ku.
Reasons for opposition
4. Mr Ku has put forward a number of reasons for opposing the petition. The first reason, which was raised in his affirmation dated 28 June 2005, is that the Bank has not served a statutory demand on him in accordance with Section 6A(1)(a) of the Bankruptcy Ordinance. The English version of Section 6A(1)(a) reads as follows:
6A. (1) For the purposes of section 6(2)(c), the debtor appears to be unable to pay a debt if, but only if, the debt is payable immediately and either ―
(a) the petitioning creditor to whom the debt is owed has served on the debtor a demand (known as ‘the statutory demand’) in the prescribed form requiring him to pay the debt or to secure or compound for it to the satisfaction of the creditor, at least 3 weeks have elapsed since the demand was served and the demand has been neither complied with nor set aside in accordance with the rules;
(The section also stipulates other conditions which, being irrelevant to the present case, will not be discussed here.)
5. Mr Ku said that he had no recollection of having received any statutory demand from any employee of the solicitors firm acting for the Bank at the ground floor entrance to the District Court building on 17 January 2005.
6. The second reason advanced by Mr Ku, as stated in his first supplemental affirmation dated 12 August 2005, is that he was not domiciled in Hong Kong during the 3 years preceding 5 May 2005 and hence did not fall within Section 4(1)(a) of the Bankruptcy Ordinance, and therefore the Bank could not present a bankruptcy petition against him pursuant to Section 3(1)(a) of the Ordinance.
7. Mr Ku said he had on 28 November 2001 surrendered the two properties that related to him ― Flat E, 2/F, Champagne Court, 16 Kimberley Road, Tsimshatsui, Kowloon and Flat A, 10/F, Austin Tower, 15A Austin Road, Tsimshatsui, Kowloon ― to the solicitors for Bank of China (Hong Kong) Limited. He further said he was forced to leave Hong Kong before 26 June 2001 or so and was not ordinarily resident in Hong Kong during the 3 years preceding 5 May 2005. He also claimed that he did not have a place of residence in Hong Kong and that he had ceased his business, namely Ku’s Fur Company Limited, before 4 May 2005. Therefore, he argued, Section 4(1)(c)(i) and (ii) of the Bankruptcy Ordinance did not apply to him.
8. The English version of Sections 3(1)(a), 4(1)(a) and (c) and 4(2) of the Ordinance reads as follows:
3. (1) A petition for a bankruptcy order to be made against a debtor may be presented to the court ―
(a) by one of the debtor’s creditors or jointly by more than one of them;
…
4. (1) A bankruptcy petition shall not be presented to the court under section 3(1)(a) or (b) unless the debtor ―
(a) is domiciled in Hong Kong;
(b) [irrelevant to these proceedings]; or
(c) at any time in the period of 3 years ending with that day ―
(i) has been ordinarily resident, or has had a place of residence, in Hong Kong; or
(ii) has carried on business in Hong Kong.
(2) The reference in subsection (1)(c) to a debtor carrying on business includes ―
(a) the carrying on of business by a firm or partnership of which the debtor is a member; and
(b) the carrying on of business by an agent or manager for the debtor or for such a firm or partnership.
9. The third reason is set out in a written submission that Mr Ku made under oath on 21 January 2006. Attached to the submission is a copy of a letter from Mr Ku to the solicitors for the Bank, in which he suggested paying off the debt by instalments. Mr Ku said that the Bank refused to accept Mr Ku’s suggestion for the reason that it was unsecured, and therefore, by virtue of Section 6D of the Bankruptcy Ordinance, this Court cannot now make a bankruptcy order against him.
10. The English version of the relevant provisions of Section 6D reads as follows:
6D. (1) The court shall not make a bankruptcy order on a creditor’s petition unless it is satisfied that the debt, or one of the debts, in respect of which the petition was presented is either ―
(a) a debt which, having been payable at the date of the petition or having since become payable, has been neither paid nor secured nor compounded for; or
(b) a debt which the debtor has no reasonable prospect of being able to pay when it falls due.
(3) The court may dismiss the petition if it is satisfied that the debtor is able to pay all his debts or is satisfied ―
(a) that the debtor has made an offer to secure or compound for a debt in respect of which the petition is presented;
(b) that the acceptance of that offer would have required the dismissal of the petition; and
(c) that the offer has been unreasonably refused,
and, in determining for the purposes of this subsection whether the debtor is able to pay all his debts, the court shall take into account his contingent and prospective liabilities.
11. Furthermore, in a Reply to the Fifth Affirmation of Wong Shing that he made on 27 August 2005, Mr Ku reiterated that he did not reside in Hong Kong and complained that the Bank had, without obtaining his consent, adduced a copy of his identity card as evidence that he was born in Hong Kong, and this, he said, contravened the Personal Data (Privacy) Ordinance (“the Privacy Ordinance”). He further said that the addresses that he submitted to the Companies Registry were the addresses of the properties owned by other directors which he submitted as correspondence addresses as required by law, and that those addresses were not his residential addresses. He also complained that the Bank failed to comply with the Privacy Ordinance by amending his correspondence address to a P.O. Box at the Shatin Central Post Office.
12. On 23 September 2005, Mr Ku made a Second Supplemental Affirmation, in which he expressed doubts about whether Wong Shing had been properly authorized by the Bank to be its representative and also reiterated his complaints against the Bank in connection with the Privacy Ordinance.
Service of the petition
13. Regarding service of the petition, Mr Ku has agreed that he received the petition on 2 June 2005 at the Hong Kong office of the solicitors for the Bank and that he signed a document acknowledging receipt of the petition.
Burden of proof
14. In respect of the matters raised by Mr Ku, I understand that the Bank bears the burden of proving the correctness of the grounds that it relies on.
Service of the statutory demand
15. On the first point, Mr Ku did not have any positive evidence to deny that the Bank handed him the statutory demand on 17 January 2005. He only raised doubts about the evidence produced by the Bank.
16. In this respect, the Bank called Mr Lam Wai Keung, a clerk who worked at the solicitors firm, to give evidence. In his affirmation and supplemental affirmation, Mr Lam stated that, on 22 July 2004, upon the instructions of his employer Messrs. Tai, Tang & Chong, he went to Room 807, 8/F, Harbour Centre Tower 1, 8 Hok Cheung Street, Hunghom with a view to serving a statutory demand on Mr Ku, but Mr Ku could not be found.
17. Mr Lam also stated that the solicitors firm dispatched a letter on 28 July 2004 to the aforesaid address for the attention of Mr Ku, informing him that a representative of the firm would visit that address again at 4 p.m. on 5 August 2004 to serve the statutory demand on him. On 9 August 2004, the solicitors firm dispatched another letter to the above address for the attention of Mr Ku, stating that on 5 August 2004 one Mr Camond Ku telephoned the firm and told one Mr Mak of the firm that Mr Ku would not be there to receive the statutory demand on 5 August 2004 because he was not in Hong Kong. Mr Camond Ku also said Mr Ku would telephone the firm on 7 August 2004, but this never happened. The letter therefore stated that a representative of the firm would visit the above address again at 4 p.m. on 16 August 2004 to serve the statutory demand on Mr Ku.
18. At 4 p.m. on 16 August 2004, Mr Lam went to the above address again in order to serve the statutory demand on Mr Ku, but a male told Mr Lam that Mr Ku had left that address a long time ago.
19. Subsequently, in the legal proceedings by the Bank against Mr Ku (i.e. DCCJ 2809/2003), an application was made that was fixed to be heard before the District Court at 9.30 a.m. on 17 January 2005. On the morning of that day Mr Lam accompanied Mr Pang, a solicitor of the firm, to the District Court building in Wanchai to wait for Mr Ku. Mr Ku did attend the hearing. After the hearing, Mr Pang walked out of the court and indicated to Mr Lam who Mr Ku was. Mr Ku was at that time together with his younger brother Mr Ku Chu Lik. Mr Lam followed Mr Ku to the ground floor of the court building via the elevator, and after they both walked out of the court building, Mr Lam approached Mr Ku from behind and called his name. Mr Ku turned round in response, whereupon Mr Lam handed the statutory demand to Mr Ku in person.
20. What Mr Lam said is in my view eminently reasonable. The statutory demand was ready to be served on 2 July 2004 but no one had been able to serve it on Mr Ku. The hearing on 17 January 2005 therefore presented a good opportunity to serve that document on him. I see nothing particularly unusual in the way in which Mr Lam served the statutory demand on Mr Ku. Mr Lam’s evidence was clear, direct and straightforward and he had no reason for not telling the truth. He also managed to identify Mr Ku and his younger brother in the court. I accept Mr Lam’s evidence as true.
21. On the contrary, I do not accept Mr Ku’s evidence. Before 17 January 2005, he was aware that Messrs. Tai, Tang & Chong would be serving a statutory demand on him, but he did not receive the document as requested. Being called outside the court building and then served by the caller with a statutory demand must, to Mr Ku, have been a sudden occurrence that was not easy to forget. At that time he should have known that the statutory demand would form the basis of the subsequent bankruptcy petition presented by the Bank against him. He should have had a clear recollection of the incident. When he said in the court that he had no recollection of the incident, he was simply lying without a blink of the eyes.
The question of domicile
22. On the second reason advanced by Mr Ku, namely the issue of domicile, I start the discussion by referring to Dicey and Morris on the Conflict of Laws, 13th Edition. Paragraph 6R-001 of this book states as follows:
Rule 4 (1) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home.
(2) A person may sometimes be domiciled in a country although he does not have his permanent home in it.
This paragraph means that, generally speaking, a person is domiciled in a place where he considers his permanent home to be.
23. The learned authors of the book provide the following explanation at paragraph 6-004:
Permanent home. The notion which lies at the root of the concept of domicile is that of permanent home. ‘By domicile we mean home, the permanent home; and if you do not understand your permanent home I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it (Whicker v. Home (1858) 7 HLC 124, 160).’ A person may be said to have his home in a country if he resides in it without any intention of at present moving from it permanently or for an indefinite period. But a person does not cease to have his home in a country merely because he is temporarily resident elsewhere; and a person who has formed the intention of leaving a country does not cease to have his home in it until he acts according to that intention.
This paragraph means that, if a person resides in a country and does not at present intend to move from it permanently, he can be said to have his home in that country. He will not cease to have his home in a country just because he temporarily resides in another country. Even if he intends to leave a country, he will continue to have his home in it until he acts according to that intention.
24. Then, at paragraph 6-005, the learned authors have this to say:
While the notion of permanent home can be explained largely in the light of commonsense principles, the same is certainly not true of domicile. Domicile is ‘an idea of law’ which diverges from the notion of permanent home in two principal respects. In the first place, the elements which are required for the acquisition of a domicile go beyond those required for the acquisition of a permanent home. In order to acquire a domicile of choice in a country a person must intend to reside in it permanently or indefinitely. A person who intends to reside in a country for ten years and no more does not acquire a domicile in it, although he has his home there during the ten years.
This paragraph means that “domicile” is a legal concept which is distinct from “permanent home”. First (and this is relevant to the present case), the requirements of domicile go beyond those of permanent home. A person who desires to acquire a domicile in a country must intend to reside in it permanently or indefinitely. If a person merely intends to reside in a country for 10 years, then even though he has his home there during that period, he cannot acquire a domicile in it.
25. Counsel for the Bank drew my attention to Mr Ku’s testimony that, when he was in Mainland China, he still regarded himself as a Hong Kong person and a Hong Kong businessman; and when asked whether he wished to return to Hong Kong, he said that he would like to return to Hong Kong because it was close to his heart, but then he did not have the ability to do so. This, Counsel submitted, shows that Mr Ku had all along hoped that he could reside in Hong Kong permanently or indefinitely.
26. Furthermore, Mr Ku said he now lives in Hebei, in a room provided to him free of charge by a friend of his. The annual rental value of the room is approximately RMB¥2,000. In these circumstances, he can only be said to be temporarily residing at his friend’s property.
27. Mr Ku admitted that he was born in 1962 in Hong Kong and that his parents were holders of Hong Kong identity cards. He received education in Hong Kong and carried on business in Hong Kong until 21 June 2000 when, faced with credit problems that prevented him from running business, he had no choice but to go to Mainland China to carry on business. On this basis, he is residing in Mainland China solely in order to make a livelihood and he does not wish to reside in Mainland China permanently.
28. At this juncture I will refer to an example from paragraph 6-010 of Dicey and Morris in order to illustrate the above legal principles.
1. D, who is domiciled in England, accepts employment in New Zealand under a contract of service by which he will be obliged to remain in New Zealand for ten years. He accordingly takes his family and belongings to New Zealand and sets up house there intending to return to England after the end of the ten years. Although his home is for the time being in New Zealand, he continues to be domiciled in England.
In this example, an Englishman accepts employment by a company in New Zealand and is therefore obliged to live there for 10 years. He therefore moves his family to New Zealand, but intending to return to England after 10 years. Although he has his home in New Zealand during the 10 years, he is still domiciled in England.
29. I also refer to paragraphs 6R-033 and 6-039 of Dicey and Morris, which state as follows:
Rule 10 ― Every independent person can acquire a domicile of choice by the combination of residence and intention of permanent or indefinite residence, but not otherwise.
Intention. The intention which is required for the acquisition of a domicile is the intention to reside permanently or for an unlimited time in a country. It must be a residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation.
These paragraphs mean that any independent person can acquire a domicile of a place by, and only by, residing there with the intention to reside there permanently or indefinitely.
30. Paragraph 6-44 contains some examples that illustrate this principle. Examples 5 and 6 are as follows:
5. D, whose domicile of origin is Scottish, goes as a trader to India. He intends ultimately to return to Scotland. He retains his Scottish domicile. (Jopp v. Wood (1865) 4 DJ & S 616)
6. D’s domicile of origin is in New Jersey. From 1850 to 1860 he works in Russia as a railway contractor. Between 1860 and 1893 he spends a substantial part of each year in England for the sake of his health. From 1893 until his death in 1897 he lives exclusively in England, in spite of his anti-British schemes and sentiments. He has not returned to the United States since his departure therefore in 1850. He retains his domicile of origin in New Jersey. (Winans v. Att.-Gen. [1904] AC 56)
31. In Example 5, a person of Scottish domicile goes to India as a trader. As he intends ultimately to return to Scotland, he retains his Scottish domicile.
32. In Example 6, a person has a domicile of origin in New Jersey. From 1850 to 1860 he works as a railway contractor in Russia. From 1860 to 1893 he spends a large part of each year in England for health reasons, and despite his anti-British sentiments, he lives in England from 1893 to 1897 when he passes away. Although he has never returned to the United States since his departure in 1850, he is still domiciled in New Jersey.
33. As to the meaning of intention, I refer to paragraphs 6R-053, 6-054 and 6-055 of Dicey and Morris, which state as follows:
Rule 12 ― Without prejudice to the generality of the foregoing Rule, in determining whether a person intends to reside permanently or indefinitely in a country the court may have regard to:
(1) the motive for which he has taken up residence there;
(2) the fact that the residence was not freely chosen;
(3) the fact that the residence was precarious.
In order that a person may acquire a domicile of choice it has been said that there must be ‘a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness’.
In the first type, a person is alleged to lack the animus manendi because he has some special motive for coming to, staying in, or leaving a country. One view is that the existence of such a motive negatives the necessary intention. This is true if the existence of the special motive leads to the conclusion that the residence was intended to cease upon the accomplishment of the purpose for which it was taken up.
These paragraphs mean that, in determining whether a person has the intention to reside permanently or indefinitely in a country, the court must have regard to the motive for which he has taken up residence there. To acquire a domicile in a country, a person must freely choose to reside there and must not reside there because he is prescribed or dictated by external factors such as the duties of office, the demands of creditors or the need to seek medical treatment. If a person has a special purpose for going to and staying in a country and he will leave that country once the purpose is achieved, then he lacks the intention to stay in that country as required by law and hence cannot acquire a domicile in that country.
34. The legal meaning of such intention was discussed by the UK House of Lords on 30 June 2005 in the case of Mark v. Mark [2005] UKHL 42. Although the discussion focused on the lawfulness of residence, the above legal meaning also formed the basis of the discussion.
35. In Mr Ku’s eyes, Hong Kong is a place where he was born and brought up. He said that he was compelled by financial reasons to go to Mainland China to run business and to live there and that his present place of residence in the Mainland is provided free of charge by a friend of his. He regards himself as a Hong Kong person and Hong Kong businessman and hopes to return to Hong Kong for residence once his financial condition permits him to do so. In these circumstances and applying the aforesaid legal principles, I hold that Mr Ku is still domiciled in Hong Kong and not in Mainland China or Hebei.
36. Furthermore, as mentioned above, Mr Ku was born in Hong Kong in 1962 and his parents are holders of Hong Kong identity cards. He lived in Hong Kong and did not move to the Mainland until 26 June 2000. Therefore, his domicile of origin is in Hong Kong, and if he alleges that his domicile has changed from Hong Kong to the Mainland, he bears the burden of proving such a change.
37. In this connection, I refer to paragraphs 6R-017 and 6-018 of Dicey and Morris, which state as follows:
Rule 7 ― An existing domicile is presumed to continue until it is proved that a new domicile has been acquired.
There is a presumption that a person continues to be domiciled in the country in which he is domiciled; or, to put it differently, the burden of proving a change of domicile lies on those who assert it.
These paragraphs mean that the existing domicile of a person is deemed to continue until it is proved that he has acquired a new domicile; and he who asserts a change of domicile bears the burden of proving the truth of the assertion.
38. As Mr Ku says he is no longer domiciled in Hong Kong and is now domiciled in Mainland China, he bears the burden of proving such a change. I wish to point out specifically that this burden of proving a change of domicile is different from the burden of proof that the Bank bears ― as mentioned above, the burden upon the Bank is to prove the correctness of the grounds relied on to support its bankruptcy petition. Here, it is Mr Ku who asserts a change of his domicile, and it follows that he bears the burden of proving such a change.
39. Mr Ku only claimed in his oral testimony that he had abandoned his Hong Kong domicile during the 3 years preceding the date of filing of the petition (i.e. 5 May 2005). He did not provide any other evidence to support this claim. The record of telephone conversation that he produced in court on the last day of the hearing only serves to show that he was absent from Hong Kong for an extended period of time between March and April 2006. He has not produced evidence to show that he was not in Hong Kong during the 3 years preceding 5 May 2005, and such evidence may take the form of departure and entry records of the Immigration Department (see Guangdong Li Shui Fresh Fruits Wholesale Market Co. Ltd. (transliteration) v. Yip Lai Fong, HCA 2259/2003). Nevertheless, on the basis of the aforesaid legal principles, even if Mr Ku could show that he had continuously lived in the Mainland during the 3 years preceding 5 May 2005, it would not necessarily mean that he had abandoned his Hong Kong domicile or acquired a domicile in the Mainland or Hebei.
40. In the House of Lords case of Marchioness of Huntly and another v. Gaskell and others [1906] AC 56, the Earl of Halsbury said (at 66 to 67):
I myself think in my view of the law that it is expressed very well indeed by Lord Curriehill, approved and quoted by Lord President Ingils in the case of Steel v. Steel (1888) 15 R 896, ‘It is, I think,’ says the learned judge, ‘by no means an easy thing to establish that a man has lost his domicil of origin, for, as Lord Cranworth said in the case of Moorhouse v. Lord (1863) 10 HL C 272, “In order to acquire a new domicil, a man must intend Quatenus in illo exuere patriam,” and I venture to translate these words into English as meaning that he must to have a fixed intention or determination to strip himself of his nationality, or, in other words, to renounce his birthright in the place of his original domicil.’ The serious character of such a change is very well expounded by Lord Curriehill in the case of Donaldson v. Mclure (1857) 20 D 307. He says: ‘To abandon one domicil for another means something far more than a mere change of residence. It imports an intention not only to relinquish those peculiar rights, privileges and immunities which the law and constitution of the domicil confer on the denizens of the country in their domestic relations, in their business transactions, in their political and municipal status, and in the daily affairs of common life, but also the laws by which the succession to property is regulated after death. The abandonment or change of a domicil is therefore a proceeding of a very serious nature, and an intention to make such an abandonment requires to be proved by satisfactory evidence.’
This passage means that a person does not abandon his domicile simply by changing residence. Such an abandonment not only involves a relinquishment of the rights, privileges and immunities conferred by the constitution and law of the country of domicile on the citizens of that country in their business transactions, political and municipal status and daily affairs, but also involves a relinquishment of the law of succession of that country. An abandonment or change of domicile is, therefore, a very serious issue, and satisfactory evidence is needed to prove an intention to change a domicile.
41. In view of what Mr Ku said regarding his reasons for moving to the Mainland to live and carry on business, as well as his wish to return to Hong Kong for residence, I further hold that he has failed to prove that he has abandoned his Hong Kong domicile or acquired a domicile in the Mainland or Hebei.
42. The above findings on domicile are sufficient to support a bankruptcy order against Mr Ku. However, I have to consider three questions raised by Mr Ku in determining whether or not to make a bankruptcy order against him.
43. The first question is whether Mr Wong Shing, being a representative of the Bank and a witness, has been authorized by the Bank to conduct these proceedings on its behalf. I have heard Mr Wong’s evidence, which in my view is not open to doubt. I accept his evidence and hold that he is conducting these proceedings with authority of the Bank.
44. The second question concerns the use by the Bank of Mr Ku’s identity card as evidence that he was born in Hong Kong. Mr Ku contends that the Bank was acting contrary to the Privacy Ordinance. It is true that the Bank adduced a copy of Mr Ku’s identity card as proof of his place and date of birth. However, after Mr Ku admitted these facts in his testimony, the Bank never referred to his identity card again. In any event, pursuant to Section 58(1) and (2) of the Privacy Ordinance, the Bank, in a debt recovery action against Mr Ku, is entitled to use his identity card for proving the above facts.
45. The English version of Section 58(1) and (2) of the Privacy Ordinance reads as follows:
(1) Personal data held for the purpose of ―
…
(d) the prevention, preclusion or remedying (including punishment) of unlawful or seriously improper conduct, or dishonesty or malpractice, by persons;
(e) the prevention or preclusion of significant financial loss arising from ―
…
(ii) unlawful or seriously improper conduct, or dishonesty or malpractice, by persons;
…
are exempt from the provisions of data protection principle 6 and section 18(1)(b) where the application of those provisions to the data would be likely to ―
(i) prejudice any of the matters referred to in this subsection; or
(ii) directly or indirectly identify the person who is the source of the data.
(2) Personal data are exempt from the provisions of data protection principle 3 in any case in which ―
(a) the use of the data is for any of the purposes referred to in subsection (1) (and whether or not the data are held for any of those purposes); and
(b) the application of those provisions in relation to such use would be likely to prejudice any of the matters referred to in that subsection,
and in any proceedings against any person for a contravention of any of those provisions it shall be a defence to show that he had reasonable grounds for believing that failure to so use the data would have been likely to prejudice any of those matters.
Accordingly, Mr Ku’s complaint in this respect falls to be rejected.
46. The third question is based on Section 6D of the Bankruptcy Ordinance and the Bank’s refusal to accept Mr Ku’s proposal to pay off the debt by instalments. The Bank refused to accept the proposal because Mr Ku did not provide the Bank with security at the same time. Mr Ku submits that the Bank had not required any security from him when it issued him with a credit card in the first place, and it was therefore unreasonable for the Bank to reject his proposal on the basis of a lack of security. For this reason, Mr Ku opposes a bankruptcy order being made against him.
47. When the Bank issued Mr Ku with a credit card, the parties were not in hostility. Subsequently, when the Bank cancelled Mr Ku’s credit card account and commenced proceedings against him in the District Court, they were in hostility. In such a case, the Bank cannot be said to have acted unreasonably in rejecting an unsecured proposal to pay the debt by instalments. Mr Ku’s contention in this respect cannot be accepted.
48. In light of my judgment on Mr Ku’s domicile and given that none of Mr Ku’s three arguments are made out, I allow the Bank’s application on the grounds set out in the unamended petition and make a bankruptcy order against Mr Ku.
49. Although a bankruptcy order has now been made, I shall go on to consider the grounds for petition as set out in the amended petition. Mr Ku argues that these grounds cannot be established.
Ordinary residence in Hong Kong
50. On the first limb regarding Section 4(1)(c)(i) of the Ordinance, namely the meaning of “ordinarily resident in Hong Kong”, I refer to paragraph 4.06 of the Butterworths Hong Kong Bankruptcy Law Handbook (2nd Edition), which states as follows:
In R v Barnett London Borough Council, ex p Shah [1983] 2 AC 309 at pp. 342 and 343, Lord Scarman held that the natural and ordinary meaning of the words ‘ordinarily resident’ had been authoritatively determined by the House of Lords in two tax cases in 1928, namely Levene v IRC [1928] AC 217 and IRC v Lysaght [1928] AC 234 to mean ‘that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration’, and the word ‘habitually’ connoted two characteristics of residence, namely that of residence adopted voluntarily and for settled purposes. Unless it can be shown that the statutory framework or the legal context in which the words are used required a different meaning, ‘ordinary residence’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration. See also Lau San Ching v Liu, Apollonia (1995) 5 HKPLR 23 at p. 31, per Cheung J.
It has been held that in determining whether a person is ‘ordinary resident’ in Hong Kong, the following guidelines were helpful: (i) whether a person is ordinary resident in Hong Kong is a question of fact and degree and must be determined in all the circumstances; (ii) a person can have ordinary residence in two countries at the same time; (iii) the residence must be voluntary and cannot be forced against the person’s free will; (iv) involuntariness may negative ordinary residence; and (v) temporary or occasional absences of long or short duration do not negative ordinary residence: See Lau San Ching v Liu, Apollonia (1995) 5 HKPLR 23 at p. 28, per Cheung J. See also Director of Immigration v Ng Shun Loi [1987] HKLR 798(CA); and Re Lee Ka Ming, a minor [1991] 1 HKLR 307.
The above passage means that a person is ordinarily resident in a place where he habitually and normally resides, apart from temporary or occasional absences of long or short duration. Unless a statute otherwise provides, “ordinary residence” refers to a person’s abode in a place which he has voluntarily adopted and for settled purposes as a regular part of his life for the time being, whether of short or long duration. Furthermore, as illustrated by a number of decided cases, whether a person is ordinarily resident in Hong Kong is a question of fact and degree, and in determining the question, the court must have regard to all the circumstances. A person can have ordinary residence in two countries at the same time, and the residence must be voluntary and not be against the person’s free will. Ordinary residence will not be affected by temporary or occasional absences of short or long duration.
51. In light of the above discussion, as Mr Ku said that he was compelled by financial reasons to move to the Mainland and that he wished to return to Hong Kong for residence, his absence from Hong Kong was forced against his will. Although he had allegedly left Hong Kong for a few years, such absence was temporary and not permanent. Therefore, he is still ordinarily resident in Hong Kong. Even if he may also be ordinarily resident in Hebei, there are still sufficient reasons for adjudging Mr Ku bankrupt under the first limb of Section 4(1)(c)(i).
Whether place of residence in Hong Kong
52. I now turn to the second limb of Section 4(1)(c)(i), namely whether Mr Ku has had a place of residence in Hong Kong. In this respect, I refer to paragraph 4.07 of the aforesaid Butterworths Handbook, which states as follows:
A person has a place of residence in Hong Kong if he has a ‘place of residence’, such as a house or lodging to which to return to: See R v St Leonard, Shoreditch, Inhabitants (1865) LR 1 QB 21; and R v Glossop Union (1866) LR 1 QB 227; and he occupies or has the intention to occupy the place as a place of residence: see Re Brauch (A debtor), ex p Britanic Securities & Investment Ltd [1978] Ch 316, [1978] 1 All ER 1004. However, it has been held that the occupation of a place solely for the purpose of the occupant’s work was not a place of residence. See Commissioner of Inland Revenue v Chow Hung Kong [1978] HKLR 475.
It is not necessary that occupation of a place of residence be for the whole of the three (3) year period before presentation of a bankruptcy petition, provided that the debtor has a place of residence at some time during the 3 years: see Re Hecquard [1890] 24 QBD 71 at p. 74, per Lord Esher MR, followed in Re Brauch (A debtor), ex p Britanic Securities & Investment Ltd (above). A person may have more than one place of residence at the same time: see Lavene v Inland Revenue Commissioner [1928] AC 217; also Herbert v Byrne [1964] 1 All ER 882, [1964] 1 WLR 519.
Whether a person is resident in a particular place and whether that residence is permanent are questions of fact and degree: see Hipperson v Electoral Registration Officer of the District of Newbury [1985] 1 QB 1060.
This passage means that, if a person has a house or lodging in Hong Kong to which he can return, and he occupies or intends to occupy the place as a place of residence, then he has a place of residence in Hong Kong. It is not necessary to show that he occupied the place for the whole of the 3 years preceding the presentation of the petition; it suffices that he had a place of residence at some time during the 3 years. Furthermore, a person may have more than one place of residence at the same time.
53. Mr Ku said that he stayed at his younger brother’s home in Tai Po when he returned to Hong Kong. This was a place to which Mr Ku could return and, although it might not be his home, it was still his place of residence in Hong Kong. I therefore hold that he has had a place of residence in Hong Kong, and he can be adjudged bankrupt under the second limb of Section 4(1)(c)(i).
Carrying on business in Hong Kong
54. The final ground of bankruptcy as appears in the amended petition is based on Section 4(1)(c)(ii) of the Bankruptcy Ordinance, namely that Mr Ku has carried on business in Hong Kong during the 3 years preceding the presentation of the petition,
55. Section 4(2)(a) of the Ordinance provides that “carrying on business” in this context includes the carrying on of business by a firm or partnership of which the debtor is a member. Paragraph 4.10 of the aforesaid Butterworths Handbook states that the term “firm” is broadly defined and includes a limited company.
56. Attached to the affirmation of Mr Wong Shing (the Bank’s representative) as documentary evidence are copies of certain annual returns filed by companies. The first annual return was filed by Ku’s Fur Company Limited with the Companies Registry on 31 May 2004. This return contains information on the company as at 12 May 2004 and was signed by Mr Ku in person on 12 May 2004. The return states that Mr Ku owned two of the three shares issued by the company and that the third share was owned by one Ku Kwan Chu. They were both directors of the company, and the address they submitted was that of the Austin Tower property which Mr Ku said he had surrendered to the Bank of China (Hong Kong) Limited on 28 November 2001. The address of the company’s registered office was stated to be the abovementioned address at Harbour Centre in Hunghom.
57. The second annual return also relates to this company but was signed by a secretarial company as the company secretary on 12 May 2005. The return contains information on the company as at 12 May 2005. In this return, the address of the company’s registered office was changed to the residential address in Tsing Yi of a younger brother of Mr Ku’s. However, apart from the date, signature and registered address, the information contained in this return, including the names and personal addresses of the two shareholders and directors, was the same as that contained in the first annual return.
58. The third document is not an annual return but an application by a body corporate for business registration which the company filed with the Business Registration Office on 17 May 1999. The application, which was signed by Mr Ku, stated that the business address was the abovementioned Harbour Centre address, and that Mr Ku’s residential address was the abovementioned Austin Tower address. The business address of the company was changed on 29 April 2005 to the residential address in Tsing Yi, but as at 20 August 2005 (the date of filing of Mr Wong’s affirmation), Mr Ku’s residential address remained as the one at Austin Tower.
59. The fourth document is an annual return filed by one Full Billion Trading Limited with the Companies Registry on 25 November 2004. It contains information on the company as at 15 October 2004. Mr Ku was stated as a director of this company, and the address of all the shareholders and directors was stated to be the abovementioned Austin Tower address. The company’s registered office was stated to be at the aforesaid residential address in Tsing Yi.
60. The fifth document is an annual return filed by one Grandwill Holdings Limited with the Companies Registry on 23 March 2004. It contains information on the company as at 4 March 2004. The company had issued 10,000 shares, 9,998 of which were held by a secretarial company and the remaining two shares by Ku Chu Wai and the aforesaid Full Billion Trading respectively. The return shows that Mr Ku was a director of this company; that the address of Ku Chu Wai was the abovementioned Austin Tower address; that the address of Full Billion Trading was the abovementioned Harbour Centre address; and that the company’s registered office, Mr Ku’s address and the addresses of all the other directors were all the same, namely the aforesaid residential address in Tsing Yi.
61. The sixth and final document is an annual return filed by Grandwill Holdings Limited with the Companies Registry on 13 April 2005. It contains information on the company as at 14 March 2005. Apart from the date, all information in this return was the same as that in the previous return.
62. Apart from the above documents, Mr Ku conceded in his testimony that, although he had been forced to leave Hong Kong before 26 June 2001, he had since then continued to pay the business registration fees for Ku’s Fur Company Limited and he is still doing so now.
63. On the basis of the above documents and Mr Ku’s testimony, I hold that Mr Ku did carry on business in Hong Kong through the abovenamed companies during the 3 years preceding 5 May 2005. This also provides a ground for adjudicating him bankrupt.
64. Finally, I order Mr Ku to pay costs of the Bank and the Official Receiver in these proceedings.
| (L. Chan) Deputy High Court Judge |
The debtor in person.
Mr Tsui Yee Lai (25 January 2006) and Mr Kenneth Lam (25 and 29 May and 9 June 2006), instructed by Tai, Tang & Chong, for the creditor.
Translated by Mr. Edmund Cham, Solicitor.
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HCB 3394/2005
香港特別行政區
高等法院原訟法庭
民事司法管轄權
高院破產案件編號2005年第3394號
______________________
有關顧主強(欠債人)的事宜
有關債權人星展銀行(香港)有限公司前經營道亨銀行有限公司的單方面申請
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主審法官：高等法院原訟法庭暫委法官陳江耀
審訊日期：2006年1月25日、5月25日、5月29日及6月9日
宣判日期：2006年6月12日
判案書日期：2006年6月12日
判案書
1. 答辯人(下稱顧先生)曾擁有呈請人(下稱銀行)發出的信用卡，銀行指顧先生的信用卡戶口有須繳的欠款，顧先生不同意。銀行於是在區域法院提出DCCJ 209/2003案，向顧先生追討。
2. 顧先生向區域法院申請要求銀行就狀書的內容提供24項更詳盡清楚的資料。區域法院聆案官在2004年6月17日聆聽了這個申請後把這申請撤銷，並命令顧先生即時向銀行繳付$24,300訴訟費，顧先生沒有根據這命令繳付任何訟費。
3. 銀行的代表律師說曾在2005年1月17日於區域法院大樓地下入口外送達了一份法定要求償債書 (Statutory Demand) (下稱「償債書」)予顧先生，但顧先生仍沒有向銀行繳付任何訟費。銀行於是在2005年5月5日向本院提出呈請，要求本院針對顧先生發出破產令。
反對的理由
4. 顧先生反對這申請，他提出幾項反對的理由。第一點理由是在2005年6月28日做的誓章提出的，就是銀行沒有根據《破產條例》6A(1)(a) 段送達一份償債書給他。該段的中英文版內容如下：
「 6A (1) 為施行第6(2)(c) 條，債務人僅在以下條件獲符合和當任何債項是須立即予以償付的情況下，方屬看似無能力償付該債項的 ─ (a) 提出呈請的債權人(即被拖欠該債項的債權人)已以訂明表格向債務人送達一份要求償債書(稱為“法定要求償債書”)，要求該債務人償付該債項或就該債項提供令該債權人滿意的抵押或作出令該債權人滿意的了結，而自送達該份要求償債書後至少已過了3星期，但該份要求償債書既沒有獲遵從，亦沒有按照規則予以作廢；」 “ 6A. (1) For the purposes of section 6(2)(c), the debtor appears to be unable to pay a debt if, but only if, the debt is payable immediately and either — (a) the petitioning creditor to whom the debt is owed has served on the debtor a demand (known as “the statutory demand”) in the prescribed form requiring him to pay the debt or to secure or compound for it to the satisfaction of the creditor, at least 3 weeks have elapsed since the demand was served and the demand has been neither complied with nor set aside in accordance with the rules;”
(條例中還有提及其他與本案無關的條件，本席不會就他們作出討論。)
5. 顧先生說他沒有印象曾在2005年1月17日在區域法院大樓地下入口外，接收過銀行的代表律師樓的職員派給他的償債書。
6. 顧先生的第二點理由是在2005年8月12日 做的補充誓章(一) 提出的，就是在2005年5月5日前三年，他並非以香港為其居籍，所以不屬於《破產條例》第4(1)(a) 段的範圍內，因此銀行不可以根據該條例第 (3)(1)(a) 段，向法庭申請針對他的破產令。
7. 顧先生說與他有關的兩個物業，即九龍尖沙咀金巴利道16號香檳大廈2樓E座和九龍尖沙咀柯士甸路15A柯士甸大廈10字樓A座，已於2001年11月28日交還了給中國銀行(香港)有限公司的代表律師。他更於大約2001年6月26日前已被逼離開香港，並於2005年5月5日前三年內通常不在香港居住。他在香港也沒有居住地方，他並在2005年5月4日前已結束了他的顧氏皮草公司的業務。所以《破產條例》第4(1)(c) 段的 (i) 和 (ii) 節對他也不適用。
8. 條例的第 (3)(1)(a) 段，4(1)(a) 和 (c) 段和4(2) 款的中英文版內容如下：
「 3. (1) 為針對任何債務人而作出任何破產令的呈請 ─ (a) 可由該債務人的債權人中的一人向法院提出或由該等債權人中多於一名的債權人共同向法院提出；」 “ 3. (1) A petition for a bankruptcy order to be made against a debtor may be presented to the court — (a) by one of the debtor’s creditors or jointly by more than one of them;” 「 4. (1) 除非債務人 ─ (a) 以香港為其居籍； (b) (與本案無關)；或 (c) 在以該日為終結的3年期間內的任何時間 ─ (i) 通常居住於香港或在香港有居住地方；或 (ii) 在香港經營業務， 否則任何人不得根據第3(1)(a) 或 (b) 條向法院提出任何破產呈請。 (2) 第 (1)(c) 款所提述的任何債務人經營業務之處，包括 ─ (a) 任何商號或合夥經營業務，而該債務人是該商號或合夥的成員；及 (b) 該債務人、該商號或該合夥的代理人或經理經營業務。」 “ 4. (1) A bankruptcy petition shall not be presented to the court under section 3(1)(a) or (b) unless the debtor — (a) is domiciled in Hong Kong; (b) (irrelevant to these proceedings); or (c) at any time in the period of 3 years ending with that day – (i) has been ordinarily resident, or has had a place of residence, in Hong Kong; or (ii) has carried on business in Hong Kong. (2) The reference in subsection (1)(c) to a debtor carrying on business includes — (a) the carrying on of business by a firm or partnership of which the debtor is a member; and (b) the carrying on of business by an agent or manager for the debtor or for such a firm or partnership.”
9. 他的第三項理由是在一份於2006年1月21日宣誓下作的書面陳詞內提出的，他在陳詞中呈遞了一封向銀行的代表律師建議分期還款的信的副本，因為銀行不接受這沒有抵押品作保證的分期還款建議，所以他認為根據《破產條例》6D條，本院不得對他作出破產令。
「 6D. (1) 凡有呈請就一筆債項，或某些債項中的一筆債項而提出，則除非法院信納該債項是一筆符合以下情況的債項，否則法院不得因應債權人的呈請而作出破產令 ─ (a) 該債項在該項呈請的日期已是須償付的或在此之後成為須償付的，但既沒有獲償付，亦沒有就其提供抵押或作出了結；或 (b) 該債項到期須償付時，債務人沒有合理的希望有能力償付。 (3) 如法院信納債務人有能力償付其全部債項或信納 ─ (a) 呈請是就某債項提出，而債務人已提出要約，以就該債項提供抵押或作出了結； (b) 假若該項要約獲接受則需要駁回該項呈請；及 (c) 該項要約已被無理地拒絕， 則法院可駁回該項呈請，此外，法院在為施行本款而裁定該債務人是否有能力償付其全部債項時，須考慮其或有的或預期的負債。」 “ 6D. (1) The court shall not make a bankruptcy order on a creditor’s petition unless it is satisfied that the debt, or one of the debts, in respect of which the petition was presented is either — (a) a debt which, having been payable at the date of the petition or having since become payable, has been neither paid nor secured nor compounded for; or (b) a debt which the debtor has no reasonable prospect of being able to pay when it falls due. (3) The court may dismiss the petition if it is satisfied that the debtor is able to pay all his debts or is satisfied- (a) that the debtor has made an offer to secure or compound for a debt in respect of which the petition is presented; (b) that the acceptance of that offer would have required the dismissal of the petition; and (c) that the offer has been unreasonably refused, and, in determining for the purposes of this subsection whether the debtor is able to pay all his debts, the court shall take into account his contingent and prospective liabilities.”
11. 顧先生更在2005年8月27日做的(回應〈Fifth Affirmation of Wong Shing〉誓章)重申他並非定居香港，他更投訴銀行在未得他同意之前，私下使用了他的身分證副本作為呈堂證據，以指證他是在香港出生，他認為這是違反了《個人資料私隱條例》(下稱《私隱條例》)。他更說他向公司註冊處呈報的住址，只是依法登錄公司其他董事名下物業為通訊地址，這些地址並不是他的住址。他更投訴銀行沒有根據《私穩條例》把他的通訊地址改為沙田中央郵政局的某一個郵箱。
12. 在2005年9月23日再做了一份補充誓章(二)。他在這誓章中更質疑銀行的代表黃勝是否得到銀行的授權作為代表，又重申他就《私隱條例》所作的投訴。
送達呈請書
13. 至於送達呈請書這一點，雙方並無爭議，顧先生同意他曾於2005年6月2日在銀行的代表律師的香港辦公室接受了這份呈請書，並簽名作實。
舉證責任
14. 就顧先生提出的數點，本席明白銀行有舉證責任以證明銀行所依賴的理據是正確的。
送達法定要求償債書
15. 就著第一點，顧先生沒有任何正面的證據以否定銀行曾於2005年1月17日把償債書派給他，他只質疑銀行所提出的證據。
16. 銀行就這點傳召了律師樓的文員林偉強先生作證。林先生在他的誓章和補充誓章說，他按僱主戴鄧莊李律師行的指示，在2004年7月22日前往紅磡鶴翔街維港中心第一座8字樓807室，欲把償債書送達顧先生，但他找不到顧先生。
17. 林先生更說該律師行在2004年7月28日致函上址予顧先生，說會在2004年8月5日下午4時再到上址把上述償債書送給他。該律師行在2004年8月9日再致函上址予顧先生，說一位Mr Camond Ku在2004年8月5日以電話向該行的一位麥先生說，顧先生因不在香港，所以不會在當日應約收取償債書。Mr Camond Ku更說顧先生會在2004年8月7日致電律師行，但顧先生後來沒有這樣做。所以律師行在這信中說會在2004年8月16日下午4時再到上址派送償債書予顧先生。
18. 林先生於是在2004年8月16日下午4時再到上址派送償債書予顧先生，但有一位男士告訴他說顧先生已經離開了上址一段長時間。
19. 後來銀行在區域法院控告顧先生的DCCJ 2809/2003案有一項申請，要在2005年1月17日上午九時半於灣仔區域法院處理，林先生當天早上更跟隨該行的彭律師到灣仔區域法院等候顧先生。顧先生當天有出席聆訊，在聆訊完畢後，彭律師步出法庭，並向林先生指出誰是顧先生，顧先生當時與他弟弟顧主力先生一起，林先生於是跟隨顧先生乘電梯到樓下，並一同步出了法院大樓，林先生然後趨前喚出顧先生的名字，顧先生於是轉身回應，林先生便把償債書親手派給顧先生。
20. 本席覺得林先生所說合情合理，償債書在2004年7月2日已準備好，但一直未能直接派到顧先生手上，所以2005年1月17日的聆訊是派送這文件的好機會。林先生派送償債書的方法也沒有甚麼不尋常，本席覺得林先生的證供是直接了當，清楚率直，他也沒有任何理由說謊，他更能在庭上認出顧先生與他的弟弟，本席接受林先生所言屬實。
21. 反之，本席不接受顧先生的證供，他在2005年1月17日前已知道戴鄧莊李律師行要派送償債書給他，但他沒有應他們的要求去接收這文件。對他來說，在法院門外被人叫喚，然後叫喚他的人把這債書交給他，是很突然的事，是不容易忘記的事，而當時他應該知道這償債書會是銀行後來呈請要宣布他破產的理據，他對這事的印象應該很深刻，所以當他在庭上說他對這事沒有記憶，他實在是睜著眼睛說謊話。
居籍問題
22. 至於第二點理由居籍問題，本席首先參考國際司法的參考書Dicey and Morris on the Conflict of Laws第13版，這書的6R-001段說：
“ Rule 4 (1) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. (2) A person may sometimes be domiciled in a country although he does not have his permanent home in it.”
這段意思是，一般來說，一個人的居籍就是他認為他永久的家的所在。
“Permanent home. The notion which lies at the root of the concept of domicile is that of permanent home. “By domicile we mean home, the permanent home; and if you do not understand your permanent home I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it (Whicker v. Home (1858) 7 HLC 124, 160).” A person may be said to have his home in a country if he resides in it without any intention of at present removing from it permanently or for and indefinite period. But a person does not cease to have his home in a country merely because he is temporarily resident elsewhere; and a person who has formed the intention of leaving a country does not cease to have his home in it until he acts according to that intention.”
這段意思是說，若某人住在某一國家，而現時沒有任何意向要永久地遷離這國家，他的家便可算是在這國家。但要是他臨時性地居於別國，這不等於他在原本的國家已沒有家。就算某人有意向離開一個國家，他的家是會留在這國家，直至他把意向付諸行動。
“While the notion of permanent home can be explained largely in the light of commonsense principles, the same is certainly not true of domicile. Domicile is “an idea of law” which diverges from the notion of permanent home in two principal respects. In the first place, the elements which are required for the acquisition of a domicile go beyond those required for the acquisition of a permanent home. In order to acquire a domicile of choice in a country a person must intend to reside in it permanently or indefinitely. A person who intends to reside in a country for ten years and no more does not acquire a domicile in it, although he has his home there during the ten years.”
這段意思是說，居籍是一法律概念，與永久的家的意義有分別，第一點(即與本案有關的一點)就是居籍所須的條件，是超過永久的家的條件，若某人要獲取某國的居籍，他一定要想永久或無限期地居於該國。若某人只欲居於某國十年，那末他便不能得該國的居籍，雖然他的家有十年是在該國。
25. 代表銀行的大律師提醒本席，說顧先生在作證時曾說在內地時仍以香港人和港商自居，在被問及是否想返回香港，他說感情上是希望回港，但沒有這能力。由此可見顧先生根本期望能永久或無限期地定居香港。
26. 再者，據他說他現居於河北，但他是居於一個由朋友免費提供的房間，這房間每年的租值約為RMB¥2000，在這情況下，他只算是寄居於朋友的物業。
27. 他承認在1962年生於香港，他父母也是持有香港的身份證，他在香港接受教育和營商，直至2000年6月21日，才因他在香港有信貸困難，不能營商，而被逼轉往內地營商，根據他這說法，他現居內地只為生計，而並非希望永久居於內地。
28. 本席在此再引用Dicey and Morris第6-010段的一個例子，以闡明上述法律原則。
“ 1. D, who is domiciled in England, accepts employment in New Zealand under a contract of service by which he will be obliged to remain in New Zealand for ten years. He accordingly takes his family and belongings to New Zealand and sets up house there intending to return to England after the end of the ten years. Although his home is for the time being in New Zealand, he continues to be domiciled in England.”
這例子是說有一個英國人接受一間紐西蘭公司聘用，須於紐西蘭居住十年，所以他遷家往紐國，但他希望十年後能返回英國。雖然在這十年他的家是在紐國，但他的居籍仍是英國。
29. 在此本席更參考Dicey and Morris的6R-033和6-039段，
“Rule 10 ─ Every independent person can acquire a domicile of choice by the combination of residence and intention of permanent or indefinite residence, but not otherwise.”“Intention. The intention which is required for the acquisition of a domicile is the intention to reside permanently or for an unlimited time in a country. It must be a residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation.”
意思是說每一個獨立自主的人都可以用他的居住地方配合起他永久或無限期於該地居住的意向(但不可用其他方法)，而獲得該地的居籍。
30. 第6-44段更有一些例子闡明這原則，其中第5和6項例子說：
“ 5. D, whose domicile of origin is Scottish, goes as a trader to India. He intends ultimately to return to Scotland. He retains his Scottish domicile. (Jopp v. Wood (1865) 4 D. J. & S. 616) 6. D’s domicile of origin is in New Jersey. From 1850 to 1860 he works in Russia as a railway contractor. Between 1860 and 1893 he spends a substantial part of each year in England for the sake of his health. From 1893 until his death in 1897 he lives exclusively in England, in spite of his anti-British schemes and sentiments. He has not returned to the United States since his departure therefore in 1850. He retains his domicile of origin in New Jersey. (Winans v. Att.-Gen. [1904] A. C. 56)”
31. 第五個例子是說某人的原居籍為蘇格蘭，他以商人身分去了印度，但他的意向是最終返回蘇格蘭，所以他仍擁有蘇格蘭的居籍。
32. 第六個例子是說某人的居籍原為美國新澤西州，從1850至1860年他在俄羅斯從事鐵路工程工作。從1860至1893年他因健康理由每年有大部分時間都居於英格蘭，雖然他一直懷有反英格蘭的情緒，但從1893年直至他在1897年離世時，他並沒有離開過英格蘭，他打從1850年離開了美國後，便沒有再回去，但他仍擁有新澤西州的居籍。
33. 有關意向的意義，本席參考Dicey and Morris 6R-053、 6-054和6-055段：
“ Rule 12 ─ Without prejudice to the generality of the foregoing Rule, in determining whether a person intends to reside permanently or indefinitely in a country the court may have regard to: (1) the motive for which he has taken up residence there; (2) the fact that the residence was not freely chosen; (3) the fact that the residence was precarious.” “ In order that a person may acquire a domicile of choice it has been said that there must be “a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness. In the first type, a person is alleged to lack the animus manendi because he has some special motive for coming to, staying in, or leaving a country. One view is that the existence of such a motive negatives the necessary intention. This is true if the existence of the special motive leads to the conclusion that the residence was intended to cease upon the accomplishment of the purpose for which it was taken up.”
意思是說法庭在考慮某人是否有意向永久或無限期地居於一個國家，須考慮他在該國居留的目的為何。若這人要獲得某國的居籍，他必須是自由地選擇該國為居住處，而並非被外在的如職務上的，或債權人的需求或治病的需要而規定或支配了要居住於該國。一個人若有特別目的而前往或居於某國家，而當他達成這目的後，便會離開這國家，那末他便沒有法律所須的停留於該國的意向，因而不能得到該國的居籍。
34. 英國上議院也曾在2005年6月30日在Mark v Mark [2005] UKHL 42一案中討論過這種意向在法律上的意義，雖然討論的焦點是在居住的合法性，但上議院的討論也是從這法律上的義意作出發點。
35. 香港對顧先生來說，是生於斯、長於斯的地方，他說他轉往內地營商和生活是被經濟理由所逼使，他現在於內地的居所也是由朋友免費提供，他更視自己為港人和港商，並希望將來有經濟條件可以返回香港長住，在這些情況和根據上述所討論的法律原則，本席裁定顧先生的居籍仍是在香港，而不是在內地或內地的河北省。
36. 再者，本席在上面也說過，顧先生是於1962年在本港出生，他父母也是持有香港的身份證，他是在香港生活至2000年6月26日才轉往內地，所以他原本的居籍應是香港，若他說他的居籍已轉到內地，他是有舉證責任以證明這轉變。
37. 在此，本席更參考Dicey and Morris 6R-017和6-018段：
“ Rule 7 ─ An existing domicile is presumed to continue until it is proved that a new domicile ha been acquired.” “ There is a presumption that a person continues to be domiciled in the country in which he is domiciled; or, to put is differently, the burden of proving a change of domicile lies on those who assert it.”
意思是說某人一貫存在的居籍是會被認為繼續存在，直至證明了他已獲得新的居籍為止，而誰宣稱某人的居籍已改變了，這宣稱者便舉證責任來證明所宣稱屬實。
38. 既然顧先生說他現在的居籍已不是在香港，而是在內地，他便有責任提供證據證明這說法，本席特別說明這改變居籍的舉證責任，有別於上文所指銀行要承擔的舉證責任，銀行的責任是要舉證以證明銀行所依賴的破產理由是正確的。在這裏，因為是顧先生說他的居籍已有改變，他就負有證明這改變的舉證責任。
39. 顧先生只是以本人的口頭證供說他在呈請書存檔日(即2005年5月5日)之前三年內已放棄了香港居籍，他沒有提出其他證據，他在審訊完結的前一天所提供的電話通話紀錄，只能證明他在2006年3至4月間長時期不在香港，但他沒有提供2005年5月5日前三年內不在香港的證據，這些證據其中的一種就是入境處的出入境紀錄(見廣東里水鮮果批發市場有限公司 v 葉麗芳HCA2259/2003)。不過，根據上述的法理原則，就算顧先生能證明他在2005年5月5日前三年內一直在內地生活，也不等於他已放棄了香港的居籍或已獲得了內地或內地河北省的居籍。
40. 英國上議院的Earl of Halsbury在Marchioness of Huntly and Another v Gaskell and others [1906] AC56一案的66至67頁說:
“ I myself think in my view of the law that it is expressed very well indeed by Lord Curriehill, approved and quoted by Lord President Ingils in the case of Steel v. Steel (1888) 15 R. 896 “It is, I think,” says the learned judge, “by no means an easy thing to establish that a man has lost his domicil of origin, for, as Lord Cranworth said in the case of Moorhouse v. Lord (1863) 10 H.L.C. 272, ‘In order to acquire a new domicil, a man must intend Quatenus in illo exuere patriam,’ and I venture to translate these words into English as meaning that he must to have a fixed intention or determination to strip himself of his nationality, or, in other words, to renounce his birthright in the place of his original domicil. The serious character of such a change is very well expounded by Lord Curriehill in the case of Donaldson v. Mclure (1857) 20 D. 307 ‘He says: ‘To abandon one domicil for another means something far more than a mere change of residence. It imports an intention not only to relinquish those peculiar rights, privileges and immunities which the law and constitution of the domicil confer on the denizens of the country in their domestic relations, in their business transactions, in their political and municipal status, and in the daily affairs of common life, but also the laws by which the succession to property is regulated after death. The abandonment or change of a domicil is therefore a proceedings of a very serious nature, and an intention to make such an abandonment requires to be proved by satisfactory evidence.”
這段判詞的意思是說一個人要放棄一個居籍，並非遷居那麼簡單，他不單止要放棄了原居籍的憲法和法律所賦予公民在國內的商業、政治、國內地位和日常生活各方面的權利、特權和豁免權，更放棄了該國的遺產法。所以，放棄或更改居籍是一個非常嚴重的問題，任何更改居籍的意向都需要以恰當的證據證實。
41. 基於顧先生所說的轉往內地生活和營商的理由，和他回港定居的願望，本席進一步裁定他未能證明已放棄了香港的居籍，或已獲取了內地或內地河北省的居籍。
42. 本席基於上述就居籍所作的裁定，已足以針對顧先生頒發破產令。但顧先生提出了三個問題，本席需要裁決了這些問題才可考慮是否頒發破產令。
43. 第一點是銀行的代表和證人黃勝先生，是否有銀行的授權可以代表銀行進行這訴訟。本席聽過黃先生的證據，覺得沒有任何可疑之處，本席接納黃先生的證據，並裁定他是在銀行授權下進行這訴訟的。
44. 第二點就是銀行引用了顧先生的身份證以證明他是在香港出生，他認為銀行是違反了《私隱條例》。銀行的確曾把顧先生的身份證副本呈堂以證明他的出生地點和日期，但當顧先生在口頭作供時承認了這些事實後，銀行已沒有再提及他的香港身份證。無論如何，根據《私隱條例》第58條 (1) 和 (2) 款，銀行在向顧先生追討欠債時，是可以引用他的香港身份證以證明上述事實的。
45. 《私隱條例》第58條 (1) 和 (2) 款的有關部分的中英文版如下：
「 (1) 為 ─ …… (d) 任何人所作的不合法或嚴重不當的行為、或不誠實的行為或舞弊行為的防止、排除或糾正(包括懲處)； (e) 防止或排除因 ─ …… (ii) 任何人所作的不合法或嚴重不當的行為、或不誠實的行為或舞弊行為，而引致的重大經濟損失； …… 而持有的個人資料，在以下情況下獲豁免而不受第6保障資料原則及第18(1)(b) 條的條文所管限 ─ (i) 該等條文適用於該等資料便相當可能會損害本款所提述的任何事宜；或 (ii) 該等條文適用於該等資料便相當可能會直接或間接識辨屬該等資料來源的人的身分。 (2) 凡 ─ (a) 個人資料是為第 (1) 款所提述的目的而使用(不論該等資料是否為該等目的而持有)；及 (b) 第3保障資料原則的條文就該等使用而適用便相當可能會損害該款所提述的任何事宜， 則該等資料獲豁免而不受第3保障資料原則的條文所管限，而在為任何人違反任何該等條文而針對他進行的法律程序中，如該人證明他當時有合理理由相信不如此使用該資料便相當可能會損害任何該等事宜，即為免責辯護。」
所以，顧先生所提出的這一點也是不可取的。
46. 至於第三點，就是顧先生根據《破產條例》第6D條和銀行拒絕他的分期付款建議而作的。銀行拒絕顧先生這分期付款的建議，是因為顧先生沒有同時向銀行提供抵押品作保證。顧先生說銀行在發出信用卡給他使用時，也沒有要求他提供任何抵押品作保證，所以銀行以這理由拒絕他的分期付款建議是不合理的，因此他認為法庭不應頒下破產令。
47. 當銀行發出信用卡給顧先生消費時，雙方的關係並不是對立的。但當銀行取消了顧先生的信用卡戶口，並在區域法院向他興訟時，雙方的關係已是對立。在此情況下，本席不可說銀行不接受沒有抵押品的分期付款是不合理，所以顧先生這一點也是不能成立的。
48. 基於上述就顧先生的居籍的裁決和顧先生的三個論點未能成立，本席現根據呈請書未修改時的理由，批准銀行的呈請，本席現針對顧先生頒發破產令。
49. 雖然破產令已頒發，但本席仍會討論呈請書經修訂後所提出的其他破產理由，顧先生說這些理由也不成立。
通常居於香港
50. 有關條例第4(1)(c)(i) 節的第一點，即通常居於香港的意思，本席參考Butterworths Hong Kong Bankruptcy Law Handbook (2nd Edition) 第4.06段:
“In R v Barnett London Borough Council, ex p Shah [1983] 2 AC 309 at pp 342 and 343, Lord Scarman held that the natural and ordinary meaning of the words “ordinarily resident” had been authoritatively determined by the House of Lords in two tax cases in 1928, namely Levene v IRC [1928] AC 217 and IRC v Lysaght [1928] AC 234 to mean ‘that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration’, and the word ‘habitually’ connoted two characteristics of residence, namely that of residence adopted voluntarily and for settled purposes. Unless it can be shown that the statutory framework or the legal context in which the words are used required a different meaning, “ordinary residence” refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration. See also Lau San Ching v Liu, Apollonia (1995) 5 HKPLR 23 at p 31, per Cheung J.
It has been held that in determining whether a person is ‘ordinary resident’ in Hong Kong, the following guidelines were helpful: (i) whether a person is ordinary resident in Hong Kong is a question of fact and degree and must be determined in all the circumstances; (ii) a person can have ordinary residence in two countries at the same time; (iii) the residence must be voluntary and cannot be forced against the person’s free will; (iv) involuntariness may negative ordinary residence; and (v) temporary or occasional absences of long or short duration do not negative ordinary residences: See Lau San Ching v Liu, Apollonia(1995) 5 HKPLR 23 at p 28, per Cheung J. See also Director of Immigration v Ng Shun Loi[1987] HKLR 798(CA); and Re Lee Ka Ming, a minor [1991] 1 HKLR 307.”
這段意思是說，一個人通常居住的地方是他除了一時或非經常的長期或短暫的離開之外，慣常或正常居住的地方，除非法例特別另定意義，通常居住的地方是指某一個人自願選擇作為當時正常生活定居的地方，無論居期的長短。而且，有很多案例說明，在裁定一個人是否通常居住在香港時，法庭要把這問題從事實和程度的角度處理，而一定要考慮到所有的背景因素。再者，一個人可同時在兩個國家通常地居住，而且居住一定要是自願，而並非被逼。就算某人一時或非經常地長期或短暫地離開這地方，也不會影響他是在這地通常居住的。
51. 基於上述的討論和因為顧先生說只因經濟理由而被逼在內地生活，而他也望回港定居，所以只是被逼離開香港，雖然他說他已離港數年，但這也仍是一時，而非永久的，所以他仍是在香港通常居住。雖然他可能同時也是在內地河北省通常居住，所以本席也可根據破條例第4(1)(c)(i) 節的第一點裁定他破產。
是否在香港有居住地方
52. 下一個新論點就是在條例第4(1)(c)(i) 節的第二點，即顧先生是否在香港有居住地方。本席參考上述Butterworths參考書第4.07段:
“ A person has a place of residence in Hong Kong if he has a ‘place of residence’, such as a house or lodging to which to return to: See R v St Leonard, Shoreditch, Inhabitants(1865)LR 1 QB 21; and R v Glossop Union (1866) LR 1 QB 227; and he occupies or has the intention to occupy the place as a place of residence: see Re Brauch(A debtor)ex p Britanic Securities & Investment Ltd [1978] Ch 316, [1978] 1 All ER 1004. However, it has been held that the occupation of a place solely for the purpose of the occupant’s work was not a place of residence. See Commissioner of Inland Revenue v Chow Hung Kong [1978] HKLR 475. It is not necessary that occupation of a place of residence be for the whole of the three (3)year period before presentation of a bankruptcy petition, provided that the debtor has a place of residence at some time during the 3 years: see Re Hecquard [1890] 24 QBD 71 at p 74, per Lord Esher MR, followed in Re Brauch(A debtor)ex p Britanic Securities & Investment Ltd(above). A person may have more than one place of residence at the same time: see Lavene v Inland Revenue Commissioner [1928] AC 217; also Herbert v Byrne [1964] 1 All ER 882, [1964] 1 WLR 519. Whether a person is resident in a particular place and whether that residence is permanent are questions of fact and degree: see Hipperson v Electoral Registration Officer of the District of Newbury [1985] 1 QB 1060.”
意思是說若某人在香港有屋宇或寄宿處可供他返回，而他佔用或有意向佔用這地方作為他的住處，他在香港便有居住地方，但他無須在呈請書存檔日之前三年在香港都有居住地方，只需要在這三年內某些時間有居住地方便可。再者，一個人在同一時間可以擁有超過一個的居住地方。
53. 顧先生說他回港時是寄居於他的弟弟在大埔的家，既然他弟弟的家是他在港可以返回的地方，雖然這未必可以算是他的家，但這也是他在香港的居住地方，所以本席裁定顧先生在香港是有居住地方的。所以根據條例第4(1)(c)(i) 節的第二點，本席也會裁定顧先生破產。
曾在香港經營業務
54. 銀行在修訂過的最後一個破產理由是根據《破產條例》第4(1)(c)(ii) 節提出的，即是說顧先生在呈請書存檔前三年內曾在香港經營業務。
55. 根據條例第4(2)(a) 段，經營業務的方式包括以商號或合夥經營，而債務人是商號或合夥的成員。上述參Butterworths考書第4.10 段指出商號的含義很廣，包括有限公司。
56. 銀行的代表黃勝先生在誓章中呈遞了一些公司周年申報表作為文件證據。第一份申報表是一間顧氏皮草有限公司(Ku’s Fur Company Limited) 在2004年5月31日存檔於公司註冊署的，這份申報表所載有關該公司的資料是截至2004年5月12日為止，這申報表是由顧先生在2004年5月12日親身簽署，報稱顧先生擁有該公司已發行的3股份其中2股，擁有餘下一股的叫顧君主。他兩人都是公司董事，他兩人報稱的地址更是顧先生說已在2001年11月28日交還了給中國銀行(香港)有限公司的柯士甸大廈物業，而公司的註冊辦事處地址則是上述紅磡維港中心的地址。
57. 第二份申報表也是這公司的，但是由一間秘書公司作為該公司秘書在2005年5月12日簽署的，所載資料截至2005年5月12日止。在這報表中，公司的註冊辦事處已改為顧先生一位弟弟在青衣的住宅地址，但除了日期、簽署和公司的註署辦事處有變外，其餘所有資料，包括兩位股東和董事的私人地址，都和上一份申報表完全相同。
58. 第三份文件不是公司的申報表，而是該公司在1999年5月17日向商業登記署存檔的法人團體的商業登記申請書。這申請書是由顧先生簽署，報稱的營業地址是上述的紅磡維港中心地址，而顧先生本人的住址則是上述柯士甸大廈的物業。該公司的業務地址在2005年4月29日改到青衣島的住宅地址，但顧先生的住址則直至2005年8月20日(即黃先生的誓章存檔之日)還是沒有被改變，仍是在柯士甸大廈。
59. 第四份是一間滿億貿易有限公司(Full Billion Trading Limited) 在2004年11月25日存檔於公司註冊署的，所載資料是截至2004年10月15日止。據這申報表的資料，顧先生是這公司的董事，但所有公司股東和董事的地址都是上述的柯士甸大廈物業，不過該公司的註冊辦事處則是上述青衣島的住宅。
60. 第五份文件是一間君裕集團有限公司(Grandwill Holdings Limited) 於2004年3月23日存檔於公司註冊處的周年申報表，資料截至2004年3月4日，該公司發行了10000股，其中9998股由一間秘書公司所持，餘下兩股由顧主偉和上述Full Billion Trading各持1股。顧先生是這公司的一位董事，顧主偉報稱的地址是上述柯士甸大廈的物業，Full Billion Trading的地址則是上述紅磡維港中心的地址，但這公司的註冊地址、顧先生的地址和公司其他董事的地址都報稱在上述青衣島的住宅。
61. 最後一份文件是Grandwill Holdings Limited在2005年4月13日存檔於公司註冊署的周年申報表，資料的截止日期是2005年3月14日。不過除了日期不同外，其他所有資料都沒有改變。
62. 除上述文件外，顧先生在口頭作證時更承認，雖然他在2001年6月26日前已被逼離開了香港，但他仍然有每年為Ku’s Fur Company Limited繳交商業登記牌費，直至現在。
63. 根據上述的文件和顧先生的口頭證供，本席裁定顧先生在2005年5月5日前三年內確有在港透過上述幾間公司經營業務，所以也會根據這理由來裁定他破產。
64. 最後，本席命令顧先生支付銀行和破產管理署就這宗訴訟而耗用的訟費。
| (陳江耀) 高等法院原訟法庭暫委法官 |
欠債人：無律師代表
債權人：戴鄧莊李律師行轉聘徐爾勵大律師(2006年1月25日)
林嘉仁大律師 (2006年5月25日、29日及6月9日) 代表
Jurisdiction to Grant Bankruptcy Orders 