JUDGMENT

Kang Hwee Gee J:

This is my oral judgment: (ex-tempore)

[1] This is an appeal against the decision of the Senior Assistant Registar in dismissing the bankrupt's application to be discharged from bankruptcy under s. 33(1) of the Bankruptcy Act 1967. Section 33(1) read as follows:

A bankrupt may at any time after being adjudged bankrupt apply to the court for an order of discharge, and the court shall appoint a day for hearing the application.

[2] The grounds relied upon by the bankrupt in making the application before the Senior Assistant Registrar are as follows:

1. RO and AO were made against the bankrupt on 27 August 1992 - some 14 years ago.

2. At the time the orders were made he was merely 33 years old.

3. The debt arose from a letter of guarantee in respect of the grant of credit facility in the supply of goods to his company of which he was a director.

4. At the time of executing this guarantee he was merely 27 years old.

5. By the time the meeting of creditors was convened by the Official Assignee, the total provable debt of the bankrupt came to approximately RM5,749,105.98.

6. The guarantee was executed by the bankrupt on the behest of his father who was at that time controlling the company which was granted the facility.

7. The sum of RM5,749,105.98 was in respect of all the guarantees he executed for the benefit of the company.

8. The bankrupt has just completed his studies in Engineering from a university in U.K.

9. The company suffered losses during the late 1980's economic downtown.

10. The bankrupt has 16 creditors but only four creditors came forward to oppose his application for discharge before the Senior Assistant Registrar. The total debt owed to the four creditors is approximately RM2.8 million.

11. Two third of the creditors, who were owed two third of the debt still remaining unpaid, did not oppose the application.

12. In the case of Re Mohana Sundari M. Subramaniam ex p United Prime Corporation Bhd [2004] 1 CLJ 624 per Zulkefli Ahmad Makinudin J at Held (1), (3) and (4):

[1] Section 33(1) of the Act allows a discharge from bankruptcy. The fact that there is such a provision in the Act shows that it is intended that a bankrupt has some form of relief. The Act also expressly lays down certain guidelines when considering the discharge application. These guidelines if viewed as a whole show that the Act was designed to meet two major conflicting concerns. On the one hand that it will be undesirable to let those who become bankrupt off the hook if they have brought about their bankruptcy by dishonest business dealings, rash and extravagance in living and if they have conducted their business affairs to the detriment of their creditors. On the other hand, it will be in the interests of society and commercial morality that people who have become a bankrupt through little fault of their own but by just being caught at the wrong turn of the economic cycle be given a second chance in life. Further, the new s. 33A of the Act allows a bankrupt to apply to the OA directly to obtain his discharge after only five years of being a bankrupt. This new section is designed and enacted by Parliament in furtherance of their original intention to afford a bankrupt some relief. (p 628 e-h)

[3] The OA's report certified that the JD was not guilty of any of the matters prohibited by the Act. Her conduct was exemplary and she gave fullest co-operation to the authorities administering her bankruptcy. By virtue of s. 33(8) of the Act, the OA's report was prima facie proof of the matters contained therein and this evidence had not been rebutted. (p 630 f)

[4] The JD was only 25 years old when she was asked by her father to sign the guarantees that resulted in her bankruptcy. Being only 25 years of age, her father must have influenced her into signing them. These extenuating circumstances had placed her in an unusually adverse position. She was not in control of the company her father had incorporated in which she and her sib