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2022 MarsdenLR 1794
COURT OF APPEAL PUTRAJAYA
QUEK SIEW ENG – Appellant
Versus
MALAYAN BANKING BERHAD – Respondent
[Civil Appeal No: S-03(IM)-46-08/2020]
A bankrupt must be formally charged and convicted of an offence for the court to consider discharge applications under specific provisions of the Insolvency Act.
Headnote:(A) Insolvency Act 1967 – Sections 16(1), 16(3), 33(1), and 33(4) – Discharge from bankruptcy – Appellant was adjudged bankrupt and applied for discharge; the application was dismissed by the Learned High Court Judge for not meeting conditions under s 33(4) due to alleged offences – Findings were erroneous as no conviction for offence was made against Appellant – Court held that the application should have been considered under s 33(3) instead – Noticeable that Appellant has complied with requirements stipulated under Act during bankruptcy – Appeal allowed, and discharge granted. (Paras 1, 6, 27, 41)
(B)
Principles of Appellate Review – Appellate courts will only interfere with findings made by trial courts if found to be plainly wrong or based on insufficient judicial appreciation of evidence. (Paras 9-10)
(C)
Statutory Reporting – The Director General of Insolvency’s report brings necessary factors but the Court is not bound by its findings. (Paras 6, 22)
Introduction
[1] This is an appeal against the whole of the decision of the Learned High Court Judge ("Learned Judge") on 4 August 2020 in dismissing the Appellant's/ Judgment Debtor's appeal against the decision of the Learned Senior Assistant Registrar ("Learned SAR"). The Learned SAR dismissed the application by the Appellant/Judgment Debtor for an Order of Discharge from Bankruptcy.
Background
[2] The Appellant/Judgment Debtor was adjudged a bankrupt on 24 June 2010. The Appellant/Judgment Debtor then applied for a discharge pursuant to s 33(1) of the Insolvency Act 1967 ("the Act") on 17 July 2019 before the Learned SAR.
[3] Upon hearing the parties, the Learned SAR dismissed the application of the Appellant /Judgment Debtor on 14 November 2019 and the Appellant / Judgment Debtor appealed to the Learned Judge on 18 November 2019.
[4] On 4 August 2020, the Learned Judge dismissed the Appellant/Judgment Debtor's appeal.
[5] The Appellant/Judgment Debtor, being dissatisfied with the decision of the Learned Judge, appealed to this Court.
Findings And Decision Of The High Court
[6] The Learned Judge dismissed the Appellant/Judgment Debtor's application for discharge and found inter alia as follows:
(a) That the Appellant/Judgment Debtor had committed an offence under s 16(3) of the Act as the Appellant/Judgment Debtor had failed to disclose his co-ownership of a piece of Land in Sandakan with title reference CL 075328273 measuring approximately 911.37 square metres (the "said Land"), in his Statement of Affairs filed with the department of the Director General of Insolvency ("DGI") which is in contravention of the mandatory requirement of s 16(1) of the Act which is punishable under s 16(3) of the same Act.
(b) That the Appellant/Judgment Debtor's present application should be premised on s 33 (4) of the Act and not on s 33(1) of the Act as the Appellant/Judgment Debtor had committed an offence under the Act and the dividend payable should not be less than 50% as stipulated. Based on the Statutory Report dated 13 August 2019 of the Director General of Insolvency ("DGI's Statutory Report"), the dividend payable did not reach the minimum of 50% as stipulated under s 33(4) of the same Act.
(c) Although the DGI's Statutory Report did not state that the Appellant/ Judgment Debtor has committed any offence under the said Act, this Court is not entirely bound by the findings made by the DGI in the DGI's Statutory Report as laid down in the case of Lok Kew v. Nam Fatt Marketing Sdn Bhd , .
The Appellant's Contentions
[7] Before us, the Appellant advanced 3 main issues as follows:
(a) That the Learned Judge's finding that the Appellant/Judgment Debtor's application for discharge should be premised under s 33(4) and not s 33(1) of the Act is erroneous;
(b) That the Learned Judge has failed to apply the correct principles in holding that the Appellant/Judgment Debtor had committed an offence under s 16(1) of the Act and in doing so, failed to take proper consideration of the DGI's Statutory Report; and
(c) As the Appellant/Judgment Debtor has not committed any bankruptcy offence, it would not be necessary to look into the whether the Appellant/ Judgment Debtor has satisfied the requirements under s 33(4) of the Act for an order of discharge. Thus, the Appellant/Judgment Debtor's application for discharge would naturally fall under s 33(3) of the Act. In fact, the Appellant/Judgment Debtor has satisfied the requirements laid down in s 33(3) of the Act and ought to be discharged as a bankrupt.
The Respondent's Contentions
[8] Before us, the Respondent/Judgment Creditor contended inter alia as follows:
(a) That the Learned Judge correctly decided that the Appellant/Judgment Debtor's application must be dealt with under s 33(4) of the Act due to various offences committed by the Appellant/Judgment Debtor;
(b) That once an application has been made under s 33(1) of the Act, the Court was only required to appoint a day for the hearing
