July 21, 2006

  • Mr Justice Ribeiro PJ  (dissenting):

    63. Pausing there, one might well ask why it is that the Official Receiver has brought these appeals and is seeking to raise an issue of unconstitutionality.  The Official Receiver's freedom to travel is, of course, not in issue.  Indeed, there is no party before the Court claiming that his or her freedom to travel has been infringed.  Two undischarged bankrupts are named as parties, but they did not appear at any hearing (...) There is accordingly a certain air of artificiality about this case, with the Court being invited to consider the operation of the impugned provision on a purely hypothetical basis.  It is also highly unusual to find a government agency, particularly one which played a major role in promoting the legislation in question, asserting that a provision of the resulting Ordinance is unconstitutional (...)

    89.  Non-compliance with the notification requirement does not prejudice any accrued right of the bankrupt to a discharge.  He does not enjoy such a right and does not suffer such a consequence.  Compliance with the notification requirement is one of the conditions to be met by the bankrupt in the process of acquiring that right, within a statutory scheme aimed at balancing the rights of the unpaid creditors against the financial rehabilitation of the bankrupt.

    Official Receiver (OR) v CHAN WING HING v Secretary Of Justice (SoJ) +
    OR v LIN HAI SAN v SoJ
    FACV Nos. 7 and 8 of 2006
    http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=53333&currpage=T