In the very recent Judgment dated 28 February 2019 by Deputy High Court Judge Maurellet SC in Re Dai Guoliang  HKCFI 597 (“Re Dai Guoliang”), the Hong Kong Court considered how its discretion to make a bankruptcy order should be exercised with respect to a foreigner. The Judgment covers helpful analysis on the approach the Court ought to take, which is highly relevant to litigators in recovery strategy planning going forward.
In April 2018, Sino Pacific Global Multi-Strategy Fund (the “Petitioner”) filed a bankruptcy petition (the “Petition”) against a gentleman named Mr. Dai Guoliang (the “Debtor”) based on a guarantee executed by the Debtor in its favour. The debt in question was in excess of HK$10 million.
There is no dispute over the existence of the debt. The Debtor opposes the bankruptcy petition on jurisdictional grounds only, namely the Debtor asserted that none of the jurisdictional gateways have been established apart from the “Personal Presence Gateway” (defined below), and that the Court should as a matter of discretion dismiss or stay the petition by reason of the Debtor’s lack of sufficient connection with Hong Kong.
Section 4 of the Bankruptcy Ordinance (Cap. 6) provides that a bankruptcy petition shall not be presented to the court unless the debtor:
- is domiciled in Hong Kong (the “Domicile Gateway”);
- is personally present in Hong Kong on the day on which the petition is presented (the “Personal Presence Gateway”); or
- 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 (the “Ordinary Residence Gateway”); or
ii. has carried on business in Hong Kong (the “Business Gateway”).