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BANKRUPTCY ORDINANCE
BANKRUPTCY ORDINANCE
[cf. 1914 c. 59 s. 114 U. K.]
106. Power to dismiss petition against some respondents only
Where there are more respondents than one to a petition the court may
dismiss the petition as to one or more of them without prejudice to the
effect of the petition as against the other or others of them.
[cf. 1914 c. 59 s. 115 U. K.]
107. Actions by trustee and bankrupt's partners
Where a member of a partnership is adjudged bankrupt the court may
authorize the trustee to commence and prosecute any action in the names of
the trustee and of the bankrupt's partner; and any release by such partner
of the debt or demand to which the action relates shall be void; but
notice of the application for authority to commence the action shall be
given to him, and he may show cause against it, and on his application the
court may, if it thinks fit, direct that he shall receive his proper share
of the proceeds of the action, and if he does not claim any benefit
therefrom he shall be indemnified against costs in respect thereof as the
court directs.
[cf. 1914 c. 59 s. 117 U. K.]
108. Actions on joint contracts
Where a bankrupt is a contractor in respect of any contract jointly with
any person or persons, such person or persons may sue or be sued in
respect of the contract without the joinder of the bankrupt.
[cf. 1914 c. 59 s. 118 U. K.]
109. Proceedings in partnership name
Any 2 or more persons, being partners, or any person carrying on business
under a partnership name, may take proceedings or be proceeded against
under this Ordinance in the name of the firm, but in such case the court
may, on application by any person interested, order the names of the
persons who are partners in such firm or the name of such person to be
disclosed in such manner, and verified on oath or otherwise, as the court
may direct.
[cf. 1914 c. 59 s. 119 U. K.]
PART VII SUPPLEMENTAL PROVISIONS
Disobedience to order of court
110. Disobedience to order of court
Where default is made by a trustee, debtor or other person in obeying any
order or direction made or given by the court under this Ordinance, the
court may make an immediate order for the committal of such trustee,
debtor or other person for contempt of court: (See Forms 98, 101) Provided
that the power given by this section shall be deemed to be in addition to
and not in substitution for any other right, remedy or liability in
respect of such default. [cf. 1914 c. 59 s. 105 (5) U. K.]
Application of Ordinance
(Amended 33 of 1939; G. N. 840 of 1940 Supp. Schedule)
111. Exclusion of corporations, companies and limited partnerships
A receiving order shall not be made against any corporation, or against
any association or company registered under the Companies Ordinance (Cap.
32), or any enactment repealed by that Ordinance, or against any
partnership registered under the Limited Partnerships Ordinance (Cap. 37).
[cf. 1914 c. 59 s. 126 U. K.]
112. Administration in bankruptcy of estate of person dying insolvent
(1) Any creditor of a deceased debtor whose debt would have been
sufficient to support a bankruptcy petition against the debtor, had he
been alive, may present to the court a petition in the prescribed form
praying for an order for the administration in bankruptcy of the estate of
the deceased debtor, according to the law of bankruptcy. (See Form 134)
(2) The petition shall be served on the legal personal representative of
the deceased debtor or, if there is none in Hong Kong, on the Official
Administrator, and the court may in the prescribed manner, upon proof of
the petitioner's debt, unless the court is satisfied that there is a
reasonable probability that the estate will be sufficient for the payment
of the debts owing by the deceased, make an order for the administration
in bankruptcy of the deceased debtor's estate or may upon cause shown
dismiss the petition with or without costs. (Amended 47 of 1984 s. 16)
(3) A petition for administration in bankruptcy under this section shall
not be presented to the court after proceedings have been commenced under
the Rules of the Supreme Court (Cap. 4 sub. leg.) for the administration
of the deceased debtor's estate but the court may, when satisfied that the
estate is insufficient to pay its debts, make an order for the
administration in bankruptcy of the estate of the deceased debtor and the
like consequences shall ensue as under an administration order made on the
petition of a creditor.
(4) Upon an order being made for the administration in bankruptcy of a
deceased debtor's estate the property of the debtor shall vest in the
Official Receiver as trustee thereof and he shall forthwith proceed to
realize and distribute it in accordance with the provisions of this
Ordinance: (See Form 136)
Provided that the creditors shall have the same powers as to appointment
of trustees and committees of inspection as they have in other cases where
the estate of a debtor is being administered or dealt with in bankruptcy,
and the provisions of this Ordinance relating to trustees and committees
of inspection shall apply to trustees and committees of inspection
appointed under the power so conferred. If no committee of inspection is
appointed any act or thing or any direction or permission which might have
been done or given by a committee of inspection may be done or given by
the court.
(5) With the modifications hereinafter mentioned, all the provisions of
Part III (relating to the administration of the property of a bankrupt)
and, subject to any modification that may be made therein by general rules
under subsection (10) the following provisions, namely section 29 (which
relates to inquiries as to the debtor's conduct, dealings and property)
and section 86 (which relates to the costs of trustees, managers and other
persons) shall, so far as the same are applicable, apply to the case of an
administration order under this section in like manner as to an order of
adjudication under this Ordinance, and section 40 shall apply as if for
the reference to an order of adjudication there were substituted a
reference to an administration order under this section.
(6) In the administration of the property of the deceased debtor under an
order of administration the Official Receiver or trustee shall have regard
to any claim by the legal personal representative of the deceased debtor
to payment of the proper funeral and testamentary expenses incurred by him
in and about the debtor's estate, and such claims shall be deemed a
preferential debt under the order and shall, notwithstanding anything to
the contrary in the provisions of this Ordinance relating to the priority
of other debts, be payable in full out of the debtor's estate in priority
to all other debts.
(7) If on the administration of a deceased debtor's estate any surplus
remains in the hands of the Official Receiver or trustee, after payment in
full of all the debts due from the debtor together with the costs of the
administration and interest as provided by this Ordinance in case of
bankruptcy, such surplus shall be paid over to the legal personal
representative of the deceased debtor's estate, or failing such
representative, to the Official Administrator.
(8) Service on the legal personal representative of a deceased debtor or
on the Official Administrator of a petition under this section shall, in
the event of an order for administration being made thereon, be deemed to
be equivalent to notice of an act of bankruptcy, and after such service no
payment or transfer of property made by the legal personal representative
shall operate as a discharge to him as between himself and the Official
Receiver or trustee; save as aforesaid nothing in this section shall
invalidate any payment made or any act or thing done in good faith by the
legal personal representative before the date of the order for
administration.
(9) A petition for the administration of the estate of a deceased debtor
under this section may be presented by the legal personal representative
of the debtor or by the Official Administrator; and where a petition is so
presented by such a representative or by the Official Administrator this
section shall apply subject to such modifications as may be prescribed by
general rules made under subsection (10). (See Form 135)
(10) General rules for carrying into effect the provisions of this section
may be made in the same manner and to the like effect and extent as in
bankruptcy. [cf. 1914 c. 59 s. 130 U. K.]
112A. Application of Ordinance to small bankruptcies
(1) Subject to subsection (2), where a petition is presented by or against
a debtor and-
(a) the court receives proof to its satisfaction; or
(b) the Official Receiver reports to the court, that the property of the
debtor is not likely to exceed in value $200,000, the court may make an
order that the debtor's estate be administered in a summary manner, and
thereupon the provisions of this Ordinance shall apply subject to the
following modifications- (Amended 26 of 1985 s. 3)
(ia) the Official Receiver may dispense with the summoning of the first
meeting of creditors required under section 17, and instead apply to the
court for an order adjudging the debtor bankrupt; (Added 26 of 1985 s. 3)
(i) if the debtor is adjudged bankrupt the Official Receiver shall be the
trustee in the bankruptcy;
(ii) there shall be no committee of inspection, and the Official Receiver
may do all things which may be done by a trustee with the permission of a
committee of inspection;
(iii) such other modifications as may be prescribed with a view to saving
expense and simplifying procedure, but nothing in this section shall
permit the modification of the provisions of this Ordinance relating to
the examination or discharge of the debtor.
(2) The court may, upon the application of the Official Receiver, at any
time before the discharge of the debtor rescind an order made under
subsection (1) and thereupon the administration shall proceed as if the
order had not been made.
(Added 1 of 1976 s. 6)
[cf. 1914 c. 47 s. 129 U. K.]
General rules
113. Power to make general rules
The Chief Justice may, with the approval of the Legislative Council, make
rules providing for, generally, the carrying into effect the objects of
this Ordinance. [cf. 1914 c. 59 s. 132 (1) U. K.]
Fees and remuneration
114. Fees and remuneration
(1) The Chief Justice may, with the approval of the Legislative Council,
by order prescribe a scale of fees and percentages to be charged for or in
respect of proceedings under this Ordinance. (Amended 39 of 1987 s. 4)
(2) The court may remit the payment of any particular fee or fees due from
any debtor, or any part thereof, either absolutely or on such terms as it
may think fit.
(3) The amount of any fees prescribed under this section shall not be
limited by reference to the amount of administrative or other costs
incurred or likely to be incurred by the Official Receiver in proceedings
in bankruptcy or in any particular bankruptcy. (Added 39 of 1987 s. 4)
(4) Orders made under this section may authorize the court to fix any fee
or to vary the amount of any fee otherwise prescribed. (Added 39 of 1987
s. 4)
(5) No fee prescribed under this section shall be invalid by reason only
of the amount of that fee. (Added 39 of 1987 s. 4)
(6) Fees required to be paid under orders made under this section shall be
recoverable as a debt. (Added 39 of 1987 s. 4)
(7) Orders made under this section before the commencement of the
Bankruptcy (Amendment) Ordinance 1987 (39 of 1987) and in force
immediately before such commencement, shall have effect as from the
commencement of that Ordinance as if made under this section as amended by
that Ordinance. (Added 39 of 1987 s. 4)
[cf. 1914 c. 59 s. 133 (1) U. K.]
115. Disposal of Official Receiver's fees
All fees and commissions received by or payable to the Official Receiver
on the appointment of a trustee other than himself or for acting as
trustee, and any remuneration received by the Official Receiver as an
interim receiver or otherwise, shall be paid by such officer forthwith
into the general revenue. (Amended 47 of 1984 s. 13)
Evidence
116. Evidence of proceedings at meetings of creditors
(1) A minute of proceedings at a meeting of creditors under this
Ordinance, signed by a person describing himself as or appearing to be
chairman of the meeting, shall be received in evidence without further
proof.
(2) Until the contrary is proved every meeting of creditors in respect of
the proceedings whereof a minute has been so signed shall be deemed to
have been duly convened and held and all resolutions passed or proceedings
had thereat to have been duly passed or had.
[cf. 1914 c. 59 s. 138 U. K.]
117. Evidence of proceedings in bankruptcy
Any petition or copy of a petition in bankruptcy, any order or certificate
or copy of an order or certificate made by the court, any instrument or
copy of an instrument, affidavit or document made or used in the course of
any bankruptcy proceedings or other proceedings had under this Ordinance
shall, if it appears to be sealed with the seal of the court or purports
to be signed by the Registrar, or is certified as a true copy by the
Registrar, be receivable in evidence in all legal proceedings whatsoever.
[cf. 1914 c. 59 s. 139 U. K.]
118. Swearing of affidavits
Subject to general rules, any affidavit to be used in a bankruptcy court
may be sworn before any person authorized to administer oaths, or in the
case of a person who is out of Hong Kong, before a magistrate or justice
of the peace or other person qualified to administer oaths in the country
where he resides (he being certified to be a magistrate or justice of the
peace, or qualified as aforesaid, by a British minister or British consul
or by a notary public).
(Amended 47 of 1984 s. 16)
[cf. 1914 c. 59 s. 140 U. K.]
119. Death of debtor or witness
In the case of the death of the debtor or his wife, or of a witness whose
evidence has been received by the court in any proceeding under this
Ordinance, the deposition of the person so deceased, purporting to be
sealed with the seal of the court, or a copy thereof purporting to be so
sealed, shall be admitted as evidence of the matters therein deposed to.
[cf. 1914 c. 59 s. 141 U. K.]
120. Statements made to Official Receiver or trustee through an
interpreter Any statement made by a debtor or creditor in any bankruptcy
to the Official Receiver or trustee through an interpreter shall be deemed
to have been made to the Official Receiver or trustee as the case may be
respectively, and evidence thereof shall be receivable from the Official
Receiver or trustee, on it being proved either that the interpreter
employed was a sworn interpreter or that he held the substantive or acting
appointment of interpreter, or of clerk and interpreter, to the Official
Receiver.
121. Certificate of appointment of trustee
A certificate of the Official Receiver that a person has been appointed
trustee under this Ordinance shall be conclusive evidence of his
appointment.
[cf. 1914 c. 59 s. 143 U. K.]
Miscellaneous
122. Computation of time
(1) Where by this Ordinance any limited time from or after any date or
event is appointed or allowed for the doing of any act or the taking of
any proceeding, then in the computation of that limited time the same
shall be taken as exclusive of the day of that date or of the happening of
that event, and as commencing at the beginning of the next following day;
and the act or proceeding shall be done or taken at latest on the last day
of that limited time as so computed.
(2) Where the limited time so appointed or allowed is less than 6 days,
general holidays as defined by the Holidays Ordinance (Cap. 149) shall not
be reckoned in the computation of such time.
(3) Where the limited time so appointed or allowed expires on one of the
days in this section specified, the act or proceeding shall be considered
as done or taken in due time if it is done or taken on the next day
afterwards which is not one of the days in this section specified.
(4) The provisions of this section shall take effect notwithstanding
anything contained in sections 29, 30 and 31 of the Supreme Court
Ordinance (Cap. 4). (Amended 92 of 1975 s. 58)
[cf. 1914 c. 59 s. 145 U. K.]
123. Service of notices
All notices and other documents for the service of which no special mode
is directed may be sent by post to the last known address of the person to
be served therewith. [cf. 1914 c. 59 s. 146 U. K.]
124. Formal defect not to invalidate proceedings
(1) No proceeding in bankruptcy shall be invalidated by any formal defect
or by any irregularity unless the court is of opinion that substantial
injustice has been caused by the defect or irregularity and that the
injustice cannot be remedied by any order of the court.
(2) No defect or irregularity in the appointment or election of a
receiver, trustee or member of a committee of inspection shall vitiate any
act done by him in good faith. [cf. 1914 c. 59 s. 147 U. K.]
125. Exemption of documents from stamp duty
(1) Stamp duty shall not be payable in respect of-
(a) any assurance relating solely to immovable property or personal
property which is part of the estate of any bankrupt, and which, after the
execution of the assurance, either at law or in equity, is or remains the
estate of the bankrupt or of the trustee under the bankruptcy; or
(b) any other instrument relating solely to the property of any bankrupt.
(2) In this section "assurance" includes deed, conveyance, assignment and
surrender. (Replaced 31 of 1981 s. 65)
126. Acting of corporations, partners, etc.
For all or any of the purposes of this Ordinance a corporation may act by
any of its officers authorized in that behalf under the seal of the
corporation, a firm may act by any of its members and a lunatic may act by
his committee or curator bonis. [cf. 1914 c. 59 s. 149 U. K.]
127. Certain provisions to bind Crown
Save as provided in this Ordinance, the provisions of this Ordinance
relating to the remedies against the property of a debtor, the priorities
of debts, the effect of a composition or scheme of arrangement, and the
effect of a discharge, shall bind the Crown.
[cf. 1914 c. 59 s. 151 U. K.]
Unclaimed funds or dividends
128. Unclaimed and undistributed dividends or funds
(1) Where a trustee, other than the Official Receiver, under any
bankruptcy, composition or scheme, pursuant to this Ordinance has under
his control any unclaimed dividend which has remained unclaimed for more
than 6 months, or any money held in trust by the debtor for another
person, or where, after making a final dividend, he has in his hands or
under his control any unclaimed or undistributed money arising from the
property of the debtor, he shall forthwith pay it to the Official Receiver
who shall carry the same to an account to be termed the Bankruptcy Estate
Account. The Official Receiver's receipt for the money so paid shall be a
sufficient discharge to the trustee in respect thereof. (Amended 1 of 1976
s. 7; 47 of 1984 s. 14)
(1A) Where the Official Receiver is the trustee, and under any bankruptcy,
composition or scheme, pursuant to this Ordinance has under his control
any unclaimed dividend which has remained unclaimed for more than 6 months
or where after making a final dividend, he has in his hands or under his
control any unclaimed or undistributed money arising from the property of
the debtor, he shall forthwith transfer the same to the Bankruptcy Estates
Account. (Added 1 of 1976 s. 7)
(2) The trustee, whether he has obtained his release or not may be called
upon by the court to account for any unclaimed funds or dividends and any
failure to comply with the requisitions of the court in this behalf may be
dealt with as a contempt of court.
(3) Any person claiming to be entitled to any moneys paid into the
Bankruptcy Estate Account under this Ordinance may, within 5 years of the
date when the same was so paid in, apply to the Official Receiver for
payment to him of the same, and the Official Receiver, if satisfied that
the person claiming is entitled, shall make an order for the payment to
such person of the sum due. Any person dissatisfied with the decision of
the Official Receiver may appeal to the court. (Amended 33 of 1939; G. N.
840 of 1940 supp. Schedule; 1 of 1976 s. 7)
(4) After any money has remained unclaimed in the Bankruptcy Estates
Account for a period of 5 years the Official Receiver may transfer such
money to the general revenue of Hong Kong. (Replaced 1 of 1976 s. 7)
(5) Before transferring any money under subsection (4) the Official
Receiver may give such notice as he thinks necessary to such parties as he
may think fit. (Replaced 1 of 1976 s. 7)
[cf. 1914 c. 59 s. 153 (1) U. K.]
128A. Deposit of surplus cash balances
(1) Whenever the cash balance standing to the credit of-
(a) the Bankruptcy Estates Account referred to in section 128; or
(b) any account operated by the Official Receiver under section 91, is in
excess of the amount which, in the opinion of the official Receiver, is
required for the time being to answer demands in respect of debtor's
estates, the Official Receiver may deposit the whole or any part of that
excess with a bank. (Amended 47 of 1984 s. 15)
(2) The Official Receiver shall on or after 31 March in each year transfer
to the general revenue any interest paid in respect of deposits under
subsection (1). (Added 65 of 1976 s. 5)
PART VIII BANKRUPTCY OFFENCES
129. Fraudulent debtors
(1) Any person who has been adjudged bankrupt or in respect of whose
estate a receiving order has been made shall in each of the cases
following be guilty of an offence-
(a) if he does not to the best of his knowledge and belief fully and truly
discover to the trustee all his property, real and personal, and how and
to whom and for what consideration and when he disposed of any part
thereof, except such part as has been disposed of in the ordinary way of
his trade (if any) or laid out in the ordinary expenses of his family,
unless he proves that he had no intent to defraud;
(b) if he does not deliver up to the trustee, or as he directs, all such
part of his movable or immovable property as is in his custody or under
his control and which he is required by law to deliver up, unless he
proves that he had no intent to defraud;
(c) if he does not deliver up to the trustee, or as he directs, all books,
documents, papers and writings in his custody or under his control
relating to his property or affairs, unless he proves that he had no
intent to defraud;
(d) if, after the presentation of a bankruptcy petition by or against him
or within 12 months next before such presentation, he conceals any part of
his property to the value of $50 or upwards or conceals any debt due to or
from him, unless he proves that he had no intent to defraud;
(e) if, after the presentation of a bankruptcy petition by or against him
or within 12 months next before such presentation, he fraudulently removes
any part of his property to the value of $50 or upwards;
(f) if he makes any material omission or misstatement in any statement
relating to his affairs, unless he proves that he had no intent to
defraud;
(g) if, knowing or having any reason to believe that a false debt has been
proved by any person under the bankruptcy, he fails for the period of a
month to inform the trustee thereof;
(h) if, after the presentation of a bankruptcy petition by or against him,
he prevents or is party or privy to preventing the production of any book,
document, paper or writing affecting or relating to his property or
affairs, unless he proves that he had no intent to conceal the state of
his affairs or to defeat the law;
(i) if, after the presentation of a bankruptcy petition by or against him
or within 12 months next before such presentation, he removes, conceals,
destroys, mutilates or falsifies or is privy to the removal, concealment,
destruction, mutilation or falsification of any book or document affecting
or relating to his property or affairs, unless he proves that he had no
intent to conceal the state of his affairs or to defeat the law;
(j) if, after the presentation of a bankruptcy petition by or against him
or within 12 months next before such presentation, he makes or is privy to
the making of any false entry in any book or document affecting or
relating to his property or affairs, unless he proves that he had no
intent to conceal the state of his affairs or to defeat the law;
(k) if, after the presentation of a bankruptcy petition by or against him
or within 12 months next before such presentation, he fraudulently parts
with, alters or makes any omission in, or is privy to the fraudulently
parting with, altering or making any omission in, any document affecting
or relating to his property or affairs;
(l) if, after the presentation of a bankruptcy petition by or against him
or at any meeting of his creditors within 12 months next before such
presentation, he attempts to account for any part of his property by
fictitious losses or expenses;
(m) - (n) (Repealed 21 of 1970 s. 35)
(o) if, within 12 months next before the presentation of a bankruptcy
petition by or against him or after the presentation of a bankruptcy
petition and before the making of a receiving order, he pawns, pledges or
disposes of any property which he has obtained on credit and has not paid
for, unless, in the case of a trader, such pawning, pledging or disposing
is in the ordinary way of his trade, and unless in any case he proves that
he had no intent to defraud;
(p) if he is guilty of any false representation or other fraud for the
purpose of obtaining the consent of his creditors or any of them to an
agreement with reference to his affairs or to his bankruptcy.
(Amended 33 of 1939; G. N. 840 of 1940 Supp. Schedule; 50 of 1991 s. 4)
(2) A person who has sent out of Hong Kong any property which he has
obtained on credit and has not paid for shall until the contrary is proved
be deemed to have disposed of the same otherwise than in the ordinary way
of his trade if, such property not having been paid or accounted for at
the date of the receiving order by the person to whom the same was sent,
such last-mentioned person does not pay or account for the same within a
reasonable time after being called upon to do so by the trustee or cannot
be found within a reasonable time. (Amended 47 of 1984 s. 16).
(3) In any prosecution under subsection (1) (i) the absence of any such
book or document as is referred to in the said paragraph shall be prima
facie evidence that such book or document was removed by the debtor
contrary to the provisions of the said paragraph or that he was privy to
its removal contrary to those provisions, and thereupon the onus shall be
upon the debtor to prove that he did not so remove such book or document
and that he was not privy to such removal. (Amended 33 of 1939; G. N. 840
of 1940 Supp. Schedule)
(4) In any prosecution under subsection (1) (i) the mutilation or
falsification of any such book or document as is referred to in the said
paragraph shall be prima facie evidence that such book or document was
mutilated or falsified by the debtor in contravention of the provisions of
the said paragraph or that he was privy to its mutilation or falsification
contrary to those provisions, and thereupon the onus shall be upon the
debtor to prove that he did not so mutilate or falsify the said book or
document and that he was not privy to such mutilation or falsification.
(Amended 33 of 1939; G. N. 840 of 1940 Supp. Schedule)
(5) Any person guilty of an offence in the cases mentioned in subsection
(1) (o) shall be liable on summary conviction to imprisonment for 1 year
or upon conviction on indictment to imprisonment for 5 years. (Amended 33
of 1939; G. N. 840 of 1940 Supp. Schedule; 50 of 1991 s. 4)
(6) For the purposes of this section, "trustee" includes the Official
Receiver, whether acting as Official Receiver or as a trustee.
[cf. 1914 c. 59 s. 154 U. K.; 1926 c. 7 s. 5 U. K.]
130. Certain offences by persons other than the debtor
(1) If any manager, accountant or book-keeper in the employment of the
debtor does any act which if committed by the debtor would be a
contravention of any of the provisions of section 129 (1) (i) or (j), or
is privy to any such act whether committed by the debtor or by any other
person, such manager, accountant or book-keeper shall be deemed to be
guilty of an offence. (Amended 33 of 1939; G. N. 840 of 1940 Supp.
Schedule; 50 of 1991 s. 4)
(2) Where any person pawns, pledges or disposes of any property in
circumstances which amount to an offence under section 129 (1) (o), every
person who takes in pawn or pledge or otherwise receives the property,
knowing it to be pawned, pledged or disposed of in such circumstances as
aforesaid, shall be guilty of an offence and shall be liable on summary
conviction to imprisonment for 1 year or upon conviction on indictment to
imprisonment for 5 years. (Amended 33 of 1939; G. N. 840 of 1940 Supp.
Schedule; 50 of 1991 s. 4)
[cf. 1926 c. 7 s. 5 (2) U. K.]
131. Undischarged bankrupt obtaining credit
Any undischarged bankrupt shall in each of the cases following be guilty
of an offence-
(a) if either alone or jointly with any other person he obtains credit to
the extent of $100 or upwards from any person without first informing that
person that he is an undischarged bankrupt; or
(b) if he engages in any trade or business under a name or names other
than that or those under which he was adjudicated bankrupt and in the
course of such trade or business obtains credit from any person without
first disclosing to such person the name or names under which he was
adjudicated bankrupt; or
(c) if he engages in any trade or business under a name or names other
than that or those under which he was adjudicated bankrupt without first
publishing, once in the Gazette, and in 3 successive issues of 2 local
newspapers one of which shall be Chinese, a notice containing the
following particulars-
(i) the name or names under which he was adjudicated bankrupt;
(ii) the last address at which he carried on any trade or business prior
to the adjudication;
(iii) the name or names under which he intends to carry on the trade or
business;
(iv) the nature of the trade or business which he intends to carry on; and
(v) the address or addresses at which he intends to carry it
on. (Amended 33 of 1939; G. N. 840 of 1940 Supp. Schedule; 20 of 1948 s.
4; 50 of 1991 s. 4) [cf. 1914 c. 59 s. 155 U. K.]
132. Frauds by bankrupts, etc.
Any person who has been adjudged bankrupt or in respect of whose estate a
receiving order has been made shall in each of the cases following be
guilty of an offence-
(a) (Repealed 21 of 1970 s. 35)
(b) if with intent to defraud his creditors or any of them he has made or
caused to be made any gift or transfer of or charge on his property; or
(c) if with intent to defraud his creditors he had concealed or removed
any part of his property since or within 2 months before the date of any
unsatisfied judgment or order for payment of money obtained against him;
or
(d) if with intent to defraud his creditors or any of them he has caused
or connived at the levying of any execution against his property.
[cf. 1926 c. 7 s. 6 U. K.]
(Amended 33 of 1939; G. N. 840 of 1940 Supp. Schedule; 20 of 1948 s. 4; 50
of 1991 s. 4) [cf. 1914 c. 59 s. 156 U. K.]
133. Bankrupt guilty of gambling, etc.
(1) Any person who has been adjudged bankrupt, or in respect of whose
estate a receiving order has been made, shall be guilty of an offence if,
having been engaged in any trade or business and having outstanding at the
date of the receiving order any debts contracted in the course and for the
purposes of such trade or business- (Amended 50 of 1991 s. 4)
(a) he has within 2 years prior to the presentation of the bankruptcy
petition materially contributed to or increased the extent of his
insolvency by gambling or by rash and hazardous speculations and such
gambling or speculations are unconnected with his trade or business; or
(b) he has between the date of the presentation of the petition and the
date of the receiving order lost any part of his estate by such gambling
or rash and hazardous speculations as aforesaid; or
(c) on being required by the Official Receiver at any time, or in the
course of his public examination by the court, to account for the loss of
any substantial part of his estate incurred within a period of a year next
preceding the date of the presentation of the bankruptcy petition or
between that date and the date of the receiving order, he fails to give a
satisfactory explanation of the manner in which such loss was incurred:
Provided that, in determining for the purposes of this section whether any
speculations were rash and hazardous, the financial position of the
accused person at the time when he entered into the speculations shall be
taken into consideration.
(2) A prosecution shall not be instituted against any person under this
section except by order of the court. (Amended 33 of 1939; G. N. 840 of
1940 Supp. Schedule) [cf. 1914 c. 59 s. 157 U. K.]
134. Bankrupt failing to keep proper accounts
(1) Any person who has been adjudged bankrupt or in respect of whose
estate a receiving order has been made shall be guilty of an offence if,
having been engaged in any trade or business during any period in the 2
years immediately preceding the date of the presentation of the bankruptcy
petition, he has not kept proper books of account throughout that period
and throughout any further period in which he was so engaged between the
date of the presentation of the petition and the date of the receiving
order, or has not preserved all books of account so kept; (Amended 50 of
1991 s. 4) Provided that a person who has not kept or has not preserved
such books of account shall not be convicted of an offence under this
section-
(a) if his unsecured liabilities at the date of the receiving order did
not exceed, in the case of a person who has not on any previous occasion
in Hong Kong or elsewhere been adjudged bankrupt or made a composition or
arrangement with his creditors, $5,000 or in any other case $1,000; or
(Amended 47 of 1984 s. 16)
(b) if he proves that in the circumstances in which he traded or carried
on business the omission was honest and excusable.
(2) A prosecution shall not be instituted against any person under this
section except by order of the court. (Amended 33 of 1939; G. N. 840 of
1940 Supp. Schedule)
(3) For the purposes of this section, a person shall be deemed not to have
kept proper books of account if he has not kept such books or accounts as
are necessary to exhibit or explain his transactions and financial
position in his trade or business, including a book or books containing
entries from day to day in sufficient detail of all cash received and cash
paid, and where the trade or business has involved dealings in goods,
statements of annual stock-takings, and (except in the case of goods sold
by way of retail trade to the actual consumer) accounts of all goods sold
and purchased showing the buyers and sellers thereof in sufficient detail
to enable the goods and the buyers and sellers thereof to be identified.
In the case of books or accounts kept in the Chinese language a person
shall, for the purposes of this section, be deemed not to have kept proper
books of account if he has not kept such books or accounts as may be
proved to be usual and necessary, for the purposes aforesaid, in the
particular trade or business carried on by the debtor.
[cf. 1914 c. 59 s. 158 U. K.; 1926 c. 7 s. 7 U. K.]
135. Bankrupt absconding with property
If any person who is adjudged bankrupt, or in respect of whose estate a
receiving order has been made, after the presentation of a bankruptcy
petition by or against him, or within 6 months before such presentation,
quits Hong Kong and takes with him, or attempts or makes preparation to
quit Hong Kong and take with him, any part of his property to the amount
of $100 or upwards, which ought by law to be divided amongst his
creditors, he shall (unless he proves that he had no intent to defraud) be
guilty of an offence.
(Amended 47 of 1984 s. 16; 50 of 1991 s. 4)
[cf. 1914 c. 59 s. 159 U. K.]
136. Debtor concealing himself to avoid service, etc.
If any person against whom a receiving order is made conceals himself or
absents himself from his usual or last known place of abode or business or
quits Hong Kong, with intent to avoid service of any process in bankruptcy
or to avoid examination in respect of his affairs or otherwise to defeat,
embarrass or delay any proceedings against him in bankruptcy, he shall be
guilty of an offence. A person who, after the presentation of a bankruptcy
petition by or against him or within 3 months next before such
presentation, conceals or absents himself as aforesaid or quits Hong Kong
shall until the contrary is proved be deemed to have concealed or absented
himself or quitted Hong Kong with such intent as is mentioned in this
section.
(Amended 47 of 1984 s. 16; 50 of 1991 s. 4)
137. (Repealed 21 of 1970 s. 35)
138. Order by court for prosecution on report of trustee
Where the Official Receiver or a trustee in a bankruptcy reports to the
court that in his opinion a debtor who has been adjudged bankrupt or in
respect of whose estate a receiving order has been made has been guilty of
any offence under this Ordinance, or where the court is satisfied upon the
representation of any creditor or member of the committee of inspection
that there is ground to believe that the debtor has been guilty of any
such offence, the court shall, if it appears to the court that there is a
reasonable probability that the debtor will be convicted and that the
circumstances are such as to render a prosecution desirable, order that
the debtor be prosecuted for such offence, but no such order shall be a
condition antecedent to any prosecution under this Ordinance.
(Amended 33 of 1939; G. N. 840 of 1940 Supp. Schedule)
[cf. 1914 c. 59 s. 161 U. K.; 1926 c. 7 s. 8 U. K.]
139. Criminal liability after discharge or composition
Where a debtor has been guilty of any criminal offence he shall not be
exempt from being proceeded against therefor by reason that he has
obtained his discharge or that a composition or scheme of arrangement has
been accepted or approved.
[cf. 1914 c. 59 s. 162 U. K.]
140. Trial and punishment of offences
(1) A person guilty of an offence under this Ordinance in respect of which
no special penalty is imposed by this Ordinance shall be guilty of an
offence triable either summarily or upon indictment, and shall be liable
to imprisonment for 2 years. (Amended 33 of 1939; G. N. 840 of 1940 Supp.
Schedule; 22 of 1950 s. 3; 50 of 1991 s. 4)
(2) Summary proceedings in respect of any such offence shall not be
instituted after 1 year from the first discovery thereof either by the
Official Receiver or by the trustee in the bankruptcy, or in the case of
proceedings instituted by a creditor, by the creditor, nor in any case
shall they be instituted after 3 years from the commission of the offence.
(3) In an indictment for an offence under this Ordinance it shall be
sufficient to set forth the substance of the offence charged in the words
of this Ordinance specifying the offence, or as near thereto as
circumstances admit, without alleging or setting forth any debt, act of
bankruptcy, trading, adjudication, or any proceedings in, or order,
warrant or document of, the court acting under this Ordinance. (Amended 33
of 1939; G. N. 840 of 1940 Supp. Schedule)
[cf. 1914 c. 59 s. 164 U. K.; 1926 c. 7 s. 10 U. K.]
141. Evidence as to frauds by agents
A statement or admission made by any person in any compulsory examination
or deposition before the court on the hearing of any matter in bankruptcy
shall not be admissible as evidence against that person or (unless they
married after the making of the statement or admission) against the wife
or husband of that person in any proceeding in respect of an offence under
the Theft Ordinance (Cap. 210).
(Amended 33 of 1939; G. N. 840 of 1940 Supp. Schedule; 21 of 1970 s. 35)
[cf. 1914 c. 59 s. 166 U. K.]
142. Summary prosecution
Any offence under this Ordinance may be dealt with summarily by a
magistrate. (Amended 23 of 1933 s. 2; 33 of 1939; G. N. 840 of 1940 Supp.
Schedule)
PART IX MISCELLANEOUS
143. Transitional
The Bankruptcy (Amendment) Ordinance 1986 (45 of 1986) shall apply in
relation to proceedings on a bankruptcy petition presented before the
commencement of that Ordinance as it applies in relation to proceedings on
a bankruptcy petition presented thereafter, save that sections 2 and 3 of
that Ordinance shall not apply in relation to any proceedings in which a
receiving order had been made before such commencement. (45 of 1986 s. 5
incorporated)
SCHEDULE I CRIMINAL BANKRUPTCY ORDERS [ss. 74A, 74B & 74C]
PART I GENERAL
1. Interpretation
In this Schedule-
"criminal bankruptcy debt" means a debt deemed to be due to any person by
virtue of paragraph 3.
2. Act of bankruptcy
Subject to the provisions of this Schedule, where a criminal bankruptcy
order is made against any person he shall be treated as a debtor who has
committed an act of bankruptcy on the date on which the order is made.
3. Creditors and criminal bankruptcy debts
A person specified in a criminal bankruptcy order as having suffered loss
or damage of any amount shall be treated for the purpose of any ensuing
proceedings pursuant to-
(a) a bankruptcy petition presented by virtue of paragraph 2; or
(b) a petition under section 112 (administration in bankruptcy of estate
of person dying insolvent) presented by virtue of this Schedule,
as a creditor for a debt of that amount provable in the bankruptcy of the
person against whom the order was made.
PART II APPLICATION OF THE ORDINANCE IN PROCEEDINGS BASED ON A CRIMINAL
BANKRUPTCY ORDER
4. Criminal bankruptcy petition
No criminal bankruptcy petition shall be presented by the person who under
paragraph 2 is the debtor; and, in relation to such a petition presented
by a creditor, section 6 shall have effect with the following
modifications-
(a) subsections (I) (a) and (b) and (2) (conditions as to nature of debt)
shall not apply to a criminal bankruptcy debt; and
(b) subsection (I) (d) (domicile of debtor) shall be omitted.
5. Receiving order
For the purposes of section 9 (2) and (3) (matters to be proved before
receiving order is made) the act of bankruptcy which a person is treated
by this Schedule as having committed and any criminal bankruptcy debt
shall be treated as conclusively proved by the production of a copy of the
criminal bankruptcy order in question and the following provisions of that
section shall not apply in relation to any such debt-
(a) so much of subsection (3) which provides that if the court is not
satisfied that the assets for division among the unsecured creditors,
after payment of all costs, charges and expenses, and the debts which are
preferential under that Ordinance, will be sufficient to pay a dividend of
15 per cent, it may dismiss the petition;
(b) subsection (5);
(c) subsection (6).
6. Trustee of criminal bankrupt's property
Where a person is adjudged bankrupt in proceedings pursuant to a criminal
bankruptcy petition the Official Receiver shall in the bankruptcy be the
trustee of the property of the bankrupt and section 23 shall not apply in
relation to any such proceedings.
7. Proof of criminal bankruptcy debt in bankruptcy proceedings
(1) For the purpose of proving a criminal bankruptcy debt in proceedings
pursuant to a criminal bankruptcy petition, a copy of the criminal
bankruptcy order specifying the amount deemed by virtue of paragraph 3 to
be due as a debt shall, subject to paragraph 5, be treated as sufficient
evidence of the debt unless it is shown by any party to the proceedings
that the amount of the relevant loss or damage is greater or less than the
amount specified in the order or that the loss or damage did not in fact
result from any offence specified in the order, and if it is shown by any
party to the proceedings that the amount of the relevant loss or damage is
other than that specified in the order, paragraph 3 shall have effect as
if that other amount had been specified in the order, but without
prejudice to the validity of the order if the amount of the relevant loss
is shown not to exceed $150,000 or such other amount as may be specified
in an order made under section 84A (5) of the Criminal Procedure Ordinance
(Cap. 221).
(2) Nothing in this paragraph or paragraph 3 shall be taken as prejudicing
the proof in proceedings pursuant to a criminal bankruptcy petition of
debts other than criminal bankruptcy debts.
(3) Nothing in sub-paragraph (1) shall be construed as entitling any
person to contend that the offence or offences specified in a criminal
bankruptcy order were not committed by the person against whom the order
was made.
8. Recovery of assets for benefit of criminal bankrupt's creditors
(1) Without prejudice to any other provision of this Ordinance, sub-
paragraph (2) to (5) shall apply, where a person is adjudged bankrupt in
proceedings pursuant to a criminal bankruptcy petition, with respect to
dispositions of property or any interest in property made by the bankrupt
on or after the relevant date, either by way of gift or for an under-
value.
In this sub-paragraph, "relevant date" means the date specified in the
criminal bankruptcy order (in accordance with section 84A (3) (d) of the
Criminal Procedure Ordinance (Cap. 221) as the earliest date on which the
offence or, as the case may be, the earliest of the offences, was
committed.
(2) On the application of the Official Receiver (in his capacity as
trustee) the court may make orders requiring-
(a) the person taking under any such disposition; or
(b) subject to sub-paragraph (3), any other person who by virtue of any
subsequent disposition acquired (whether or not from the person taking
under the bankrupt's disposition) the whole or any part of the property or
any interest therein, to transfer the whole or any part of the property,
or such interest as the order may specify, to the trustee, or to make such
payments to the trustee as the court thinks just with a view to making
available to the creditors the full value of the property or interest
disposed of by the bankrupt (including any increase in its value since the
disposition was made).
(3) No order shall be made by virtue of subparagraph (2) (b) against a
person appearing to the court to have given full value for anything taken
by him under a relevant disposition or to claim (directly or indirectly)
through a person who gave full value.
(4) An order of the court under this paragraph requiring a person to
transfer any property or interest may include such consequential
directions for giving effect to the order, and be made on such terms
(including in particular terms allowing the person to retain or recover
consideration given by him for any relevant disposition) as the court
thinks just in all the circumstances.
(5) In this paragraph, "disposition" includes any conveyance or assurance
of property of any description.
9. Administration in bankruptcy of deceased offender's estate
(1) Where an order for administration is made under section 112 on a
criminal bankruptcy administration petition, so much of subsection (4) of
that section as enables the creditors to appoint a trustee of the property
of the debtor in place of the Official Receiver shall not apply.
(2) Paragraph 7 shall apply in relation to proof of criminal bankruptcy
debts in proceedings pursuant to a criminal bankruptcy administration
petition as it applies in relation to proof of such debts in proceedings
pursuant to a criminal bankruptcy petition.
10. Bankruptcy proceedings otherwise than by virtue of this Schedule Where
a criminal bankruptcy order has been made against any person and a
bankruptcy petition has been presented in respect of him before the order
was made, or is presented in respect of him thereafter otherwise than by
virtue of paragraph 2, the court may, on the application of the Official
Petitioner, dismiss the petition, rescind any receiving order made in
pursuance thereof or, if that person has been adjudged bankrupt, annul the
adjudication on such terms, if any, as the court thinks fit.
11. Effect of appeal against conviction
(1) Subject to the provisions of this paragraph, the fact that an appeal
is pending against any conviction by virtue of which a criminal bankruptcy
order was made shall not preclude the taking of any proceedings by virtue
of this Schedule in consequence of the making of the order.
(2) Where a person is adjudged bankrupt in proceedings pursuant to a
criminal bankruptcy petition, no property shall be distributed by his
trustee in bankruptcy and no order shall be made by the court under
paragraph 8 so long as an appeal is pending against his conviction of any
offence by virtue of which the criminal bankruptcy order was made.
(Amended L. N. 65 of 1986)
(3) For the purposes of this paragraph an appeal against a conviction is
pending-
(a) in any case until the expiration of the time for giving notice of
appeal or applying for leave to appeal under section 83Q of the Criminal
Procedure Ordinance (Cap. 221) (disregarding any extension of time which
may be granted under subsection (3) of that section);
(b) if notice of appeal or of application for leave is given during that
period and during that period the appellant notifies the Official Receiver
thereof, until the determination of the appeal and thereafter for so long
as an appeal to the Privy Council is pending within the meaning of section
84B (5) of that Ordinance.
(4) Where in consequence of an appeal a criminal bankruptcy order is
rescinded-
(a) any bankruptcy petition based on the order shall lapse and any
receiving order or adjudication of bankruptcy made in consequence thereof
shall cease to have effect, but without prejudice to anything previously
done thereunder;
(b) where any such adjudication ceases to have effect, the property of the
person who was adjudicated bankrupt shall revert to him for all his estate
or interest therein; and
(c) the court may, on his application or on the application of the
Official Receiver, by order give such directions, if any, as appear to the
said court to be necessary or desirable in consequence of the provisions
of sub-paragraphs (a) and (b).
(5) Where in consequence of an appeal a criminal bankruptcy order is
amended by the deletion of any amount specified therein as the loss or
damage suffered by any person, paragraph 3 shall not thereafter apply to
that loss or damage but without prejudice to anything done before the
amendment takes effect. PART III FUNCTIONS OF OFFICIAL PETITIONER
12. Presentation of criminal bankruptcy petition by Official Petitioner
(1) The Official Petitioner may present a criminal bankruptcy petition,
and a receiving order may be made on that petition.
(2) Section 6, as modified by paragraph 4 of this Schedule, shall apply to
a criminal bankruptcy petition presented by the Official Petitioner as it
applies to a petition presented by a creditor, but the court may allow the
petition to be presented later than required by subsection (1) (c) of that
section.
(3) The following provisions-
(a) section 9 (2) (making of receiving order on creditor's petition);
(b) section 9 (3) (dismissal of petition); and
(c) section 9 (7) (withdrawal of creditor's petition),
shall apply in relation to a criminal bankruptcy petition presented by the
Official Petitioner as if any reference to the debt of the petitioning
creditor were a reference to any criminal bankruptcy debt within the
meaning of this Schedule; and paragraph 5 shall have effect in relation to
section 9 (2) and (3) as they apply by virtue of this paragraph.
13. Presentation of criminal bankruptcy administration petition by
Official Petitioner
(1) The Official Petitioner may present a petition under section 112 in
any case in which a creditor could do so by virtue of this Schedule, and
an order may be made under that section on that petition.
(2) Section 112 (2) shall have effect in relation to a petition presented
by the Official Petitioner as if the reference to the petitioner's debt
were a reference to any criminal bankruptcy debt within the meaning of
this Schedule.
14. Participation of Official Petitioner in proceedings brought by virtue
of this Schedule (whether by the Official Petitioner or by a creditor)
(1) In the case of proceedings pursuant to a criminal bankruptcy petition
or a criminal bankruptcy administration petition, the Official Petitioner
shall be entitled-
(a) to attend any meeting of creditors and, before the meeting, to receive
any notice or other document required to be sent before such a meeting to
any creditor;
(b) to be a member of any committee of inspection appointed under section
24, but not so as to count towards the number of members mentioned in
subsection (2) or (9), or be subject to removal under subsection (7), of
that section;
(c) to be a party to any such proceedings before the court.
(2) In the case of proceedings pursuant to-
(a) a criminal bankruptcy petition or a criminal bankruptcy administration
petition, the provisions of the Ordinance mentioned in sub-paragraph (3)
shall have effect as if any reference to a creditor, or to a creditor who
has proved or tendered a proof, included a reference to the Official
Petitioner; and
(b) a criminal bankruptcy administration petition, the expression " a
petition under this section" in section 112 (8) shall include a reference
to a petition by the Official Petitioner.
(3) The provisions referred to in sub-paragraph (2) are-
(a) section 15 (power to appoint special manager);
(b) section 18 (2) and (4) (debtor's statement of affairs);
(c) section 19 (4) and (8) (public examination of debtor);
(d) section 20 (5), (6) and (8) (compositions and schemes of arrangement);
(e) section 30 (2) and (8) (discharge of bankrupt);
(f) section 42 (relation back of trustee's title);
(g) section 78 (1) (e) (report to creditors of debtor's proposal);
(h) section 83 (appeal to court against act or decision of trustee).
(Schedule 1 added 21 of 1979 s. 3. Amended 39 of 1992 s. 6)
[cf. 1973 c. 62 Schedule 2 U. K.]
SCHEDULE 2 [ss. 75 & 76]
PART I
1. Assistant Official Receiver (Legal)
2. Assistant Official Receiver (Case Management)
3. Assistant Principal Solicitor
4. Senior Solicitor
5. Solicitor
PART II
1. Assistant Director of Accounting Services
2. Chief Insolvency Officer
3. Senior Insolvency Officer
4. Insolvency Officer
(Schedule 2 added 39 of 1992 s. 6)
discharge the trustee from all personal liability in respect of the
property disclaimed as from the date when the property vested in him, but
shall not, except so far as is necessary for the purpose of releasing the
bankrupt and his property and the trustee from liability, affect the
rights or liabilities of any other person.
(3) A trustee shall not be entitled to disclaim a lease without the leave
of the court, except in any cases which may be prescribed by general
rules, and the court may, before or on granting such leave, require such
notices to be given to persons interested, and impose such terms as a
condition of granting leave, and make such orders with respect to
fixtures, tenant's improvements and other matters arising out of the
tenancy, as the court thinks just.
(4) The trustee shall not be entitled to disclaim any property in
pursuance of this section in any case where an application in writing has
been made to the trustee by any person interested in the property
requiring him to decide whether he will disclaim or not and the trustee
has for a period of 28 days after the receipt of the application, or such
extended period as may be allowed by the court, declined or neglected to
give notice whether he disclaims the property or not; and in the case of a
contract, if the trustee after such application as aforesaid does not
within the said period or extended period disclaim the contract, he shall
be deemed to have adopted it.
(5) The court may, on the application of any person who is, as against the
trustee, entitled to the benefit or subject to the burden of a contract
made with the bankrupt, make an order rescinding the contract on such
terms as to payment by or to either party of damages for the non-
performance of the contract, or otherwise, as to the court may seem
equitable, and any damages payable under the order to any such person may
be proved by him as a debt under the bankruptcy.
(6) The court may, on application by any person claiming either to have
any interest in any disclaimed property or to be under any liability not
discharged by this Ordinance in respect of any disclaimed property, and on
hearing such persons as it thinks fit, make an order for the vesting of
the property in or delivery thereof to any person entitled thereto, or to
whom it may seem just that the same should be delivered by way of
compensation for such liability as aforesaid, or a trustee for him, and on
such terms as the court thinks just; and on any such vesting order being
made, the property comprised therein shall vest accordingly in the person
therein named in that behalf without any conveyance or assignment for the
purpose:
Provided that where the property disclaimed is of a leasehold nature the
court shall not make a vesting order in favour of any person claiming
under the bankrupt, whether as under-lessee or as a person entitled to a
mortgage except upon the terms of making that person-
(a) subject to the same liabilities and obligations as the bankrupt was
subject to under the lease in respect of the property at the date when the
bankruptcy petition was filed; or
(b) if the court thinks fit, subject only to the same liabilities and
obligations as if the lease had been assigned to that person at that date,
and in either event (if the case so requires) subject only to the same
liabilities and obligations as if the lease had comprised only the
property comprised in the vesting order; and any under-lessee or person
entitled to a mortgage who declines to accept a vesting order upon such
terms shall be excluded from all interest in and security upon the
property, and if there is no person claiming under the bankrupt who is
willing to accept an order upon such terms, the court shall have power to
vest the bankrupt's estate and interest in the property in any person
liable either personally or in a representative character and either alone
or jointly with the bankrupt to perform the lessee's covenants in the
lease, freed and discharged from all estates, incumbrances and interests
created therein by the bankrupt. (Amended 47 of 1984 s. 10)
(7) Where on the release, removal, resignation or death of a trustee in
bankruptcy the Official Receiver is acting as trustee, he may disclaim any
property which might be disclaimed by a trustee under the foregoing
provisions, notwithstanding that the time prescribed by this section for
such disclaimer has expired, but such power of disclaimer shall be
exercisable only within 12 months after the Official Receiver has become
trustee in the circumstances aforesaid or has become aware of the
existence of such property, whichever period may last expire.
(8) Any person injured by the operation of a disclaimer under this section
shall be deemed to be a creditor of the bankrupt to the extent of the
injury and may accordingly prove the same as a debt under the bankruptcy.
(See Forms 123 to 130)
[cf. 1914 c. 59 s. 54 U. K.]
60. Powers of trustee to deal with property
Subject to the provisions of this Ordinance and to any order of the court,
the trustee may do all or any of the following things-
(a) sell all or any part of the property of the bankrupt (including the
goodwill of the business, if any, and the book debts due or growing due to
the bankrupt), by public auction or private contract, with power to
transfer the whole thereof to any person or company, or to sell the same
in parcels, and any transfer of a business of a bankrupt by the Official
Receiver or trustee shall be deemed to be exempted from the provisions of
the Transfer of Businesses (Protection of Creditors) Ordinance (Cap. 49);
(b) give receipts for any money received by him, which receipts shall
effectually discharge the person paying the money from all responsibility
in respect of the application thereof;
(c) prove, rank, claim and draw a dividend in respect of any debt due to
the bankrupt;
(d) exercise any powers the capacity to exercise which is vested in the
trustee under this Ordinance and execute any powers of attorney, deeds and
other instruments for the purpose of carrying into effect the provisions
of this Ordinance. (Amended 33 of 1939; G. N. 840 of 1940 Supp. Schedule;
20 of 1948 s. 4) [cf. 1914 c. 59 s. 55 U. K.]
61. Powers exercisable by trustee with permission of committee of
inspection The trustee may, with the permission of the committee of
inspection, do all or any of the following things-
(a) carry on the business of the bankrupt so far as may be necessary for
the beneficial winding up of the same;
(b) bring, institute or defend any action or other legal proceeding
relating to the property of the bankrupt;
(c) employ a solicitor or other agent to take any proceedings or do any
business which may be sanctioned by the committee of inspection;
(d) accept as the consideration for the sale of any property of the
bankrupt a sum of money payable at a future time subject to such
stipulations as to security and otherwise as the committee think fit;
(e) mortgage or pledge any part of the property of the bankrupt for the
purpose of raising money for the payment of his debts;
(f) refer any dispute to arbitration, or compromise any debts, claims and
liabilities, whether present or future, certain or contingent, liquidated
or unliquidated, subsisting or supposed to subsist between the bankrupt
and any person who may have incurred any liability to the bankrupt, on the
receipt of such sums, payable at such times and generally on such terms as
may be agreed on;
(g) make such compromise or other arrangement as may be thought expedient
with creditors or persons claiming to be creditors in respect of any debts
provable under the bankruptcy;
(h) make such compromise or other arrangement as may be thought expedient
with respect to any claim arising out of or incidental to the property of
the bankrupt, made or capable of being made on the trustee by any person
or by the trustee on any person;
(i) divide in its existing form amongst the creditors, according to its
estimated value, any property which from its peculiar nature or other
special circumstances cannot be readily or advantageously sold.
The permission given for the purposes of this section shall not be a
general permission to do all or any of the above-mentioned things but
shall only be a permission to do the particular thing or things for which
permission is sought in the specified case or cases.
(Amended 33 of 1939; G. N. 840 of 1940 Supp. Schedule; 20 of 1948 s. 4)
[cf. 1914 c. 59 s. 56 U. K.]
62. Power to allow bankrupt to manage property
The trustee, with the permission of the committee of inspection, may
appoint the bankrupt himself to superintend the management of the property
of the bankrupt or of any part thereof, or to carry on the trade (if any)
of the bankrupt for the benefit of his creditors, and in any other respect
to aid in administering the property, in such manner and on such terms as
the trustee may direct.
[cf. 1914 c. 59 s. 57 U. K.]
63. Allowance to bankrupt for maintenance or service
The trustee may from time to time, with the permission of the committee of
inspection, make such allowance as he may think just to the bankrupt out
of his property for the support of the bankrupt and his family, or in
consideration of his services if he is engaged in winding up his estate,
but any such allowance may be reduced by the court. [cf. 1914 c. 59 s. 58
U. K.]
64. Right of trustee to inspect goods pawned, etc.
Where any goods of a debtor against whom a receiving order has been made
are held by any person by way of pledge, pawn or other security, it shall
be lawful for the Official Receiver or trustee, after giving notice in
writing of his intention to do so, to inspect the goods, and where such
notice has been given, such person as aforesaid shall not be entitled to
realize his security until he has given the trustee a reasonable
opportunity of inspecting the goods and of exercising his right of
redemption if he thinks fit to do so.
[cf. 1914 c. 59 s. 59 U. K.]
65. Limitation of trustee's powers in relation to copyright
Where the property of a bankrupt comprises the copyright in any work or
any interest in such copyright and he is liable to pay to the author of
the work royalties or a share of the profits in respect thereof, the
trustee shall not be entitled to sell or authorize the sale of any copies
of the work, or to perform or authorize the performance of the work,
except on the terms of paying to the author such sums by way of royalty or
share of the profits as would have been payable by the bankrupt, nor shall
he, without the consent of the author or of the court, be entitled to
assign the right or transfer the interest or to grant any interest in the
right by licence, except upon terms which will secure to the author
payments by way of royalty or share of the profits at a rate not less than
that which the bankrupt was liable to pay.
[cf. 1914 c. 59 s. 60 U. K.]
66. Protection of Official Receiver and trustee from personal liability in
certain cases Where the Official Receiver or trustee has seized or
disposed of any goods, chattels, property or other effects in the
possession or on the premises or under the control of a debtor against
whom a receiving order has been made and it is thereafter made to appear
that the said goods, chattels, property or other effects were not at the
date of the receiving order the property of the debtor, the Official
Receiver or trustee shall not be personally liable for any loss or damage
arising from such seizure or disposal sustained by any person claiming
such property nor for the costs of any proceedings taken to establish a
claim thereto, unless the court is of opinion that the Official Receiver
or trustee has been guilty of mala fides or of gross negligence in respect
of the same.
[cf. 1914 c. 59 s. 61 U. K.]
Distribution of property
67. Declaration and distribution of dividends
(1) Subject to the retention of such sums as may be necessary for the
costs of administration, or otherwise, the trustee shall with all
convenient speed declare and distribute dividends amongst the creditors
who have proved their debts.
(2) The first dividend, if any, shall be declared and distributed within 4
months after the conclusion of the first meeting of creditors, unless the
trustee satisfies the court that there is sufficient reason for postponing
the declaration to a later date.
(3) Subsequent dividends shall, in the absence of sufficient reason to the
contrary, be declared and distributed at intervals of not more than 6
months.
(4) Before declaring a dividend, the trustee shall cause notice of his
intention to do so to be gazetted and shall also send reasonable notice
thereof to each creditor mentioned in the bankrupt's statement who has not
proved his debt.
(5) When the trustee has declared a dividend he shall cause to be gazetted
and shall send to each creditor who has proved a notice showing the amount
of the dividend and when and how it is payable.
(See Forms 138, 139, 141)
[cf. 1914 c. 59 s. 62 U. K.]
68. Joint and separate dividends
(1) Where one partner of a firm is adjudged bankrupt, a creditor to whom
the bankrupt is indebted jointly with the other partners of the firm, or
any of them, shall not receive any dividend out of the separate property
of the bankrupt until all the separate creditors have received the full
amount of their respective debts.
(2) Where joint and separate properties are being administered, dividends
of the joint and separate properties shall, unless otherwise directed by
the court on the application of any person interested, be declared
together and the expenses of and incidental to such dividends shall be
fairly apportioned by the trustee between the joint and separate
properties, regard being had to the work done for and the benefit received
by each property.
[cf. 1914 c. 59 s. 63 U. K.]
69. Provision for creditors residing at a distance, etc.
(1) In the calculation and distribution of a dividend the trustee shall
make provision for debts provable in bankruptcy appearing from the
bankrupt's statements, or otherwise, to be due to persons resident in
places so distant from Hong Kong that in the ordinary course of
communication they have not had sufficient time to tender their proofs or
to establish them if disputed, and also for debts provable in bankruptcy
the subject of claims not yet determined.
(Amended 47 of 1984 s. 16)
(2) He shall also make provision for any disputed proofs or claims, and
for the expenses necessary for the administration of the estate or
otherwise.
(3) Subject to the foregoing provisions, he shall distribute as dividend
all money in hand.
[cf. 1914 c. 59 s. 64 U. K.]
70. Right of creditor who has not proved debt before declaration of a
dividend Any creditor who has not proved his debt before the declaration
of any dividend or dividends shall be entitled to be paid out of any money
for the time being in the hands of the trustee any dividend or dividends
he may have failed to receive before that money is applied to the payment
of any future dividend or dividends, but he shall not be entitled to
disturb the distribution of any dividend declared before his debt was
proved by reason that he has not participated therein.
[cf. 1914 c. 59 s. 65 U. K.]
71. Interest on debts
(1) Where a debt has been proved and the debt includes interest or any
pecuniary consideration in lieu of interest, such interest or
consideration shall, for the purposes of dividend, be calculated at a rate
not exceeding 8 per cent per annum and be calculated only up to the date
of the receiving order, without prejudice to the right of a creditor to
receive out of the estate any higher rate of interest to which he may be
entitled after all the debts proved in the estate have been paid in full.
(2) In dealing with the proof of the debt the following rules shall be
observed-
(a) any account settled between the debtor and the creditor within 3 years
preceding the date of the receiving order may be examined, and if it
appears that the settlement of the account forms substantially one
transaction with any debt alleged to be due out of the debtor's estate
(whether in the form of renewal of a loan or capitalization of interest or
ascertainment of loans or otherwise), the account may be reopened and the
whole transaction treated as one;
(b) any payments made by the debtor to the creditor before the receiving
order, whether by way of bonus or otherwise, and any sums received by the
creditor before the receiving order from the realization of any security
for the debt shall, notwithstanding any agreement to the contrary, be
appropriated to principal and interest in the proportion that the
principal bears to the sum payable as interest at the agreed rate;
(c) where the debt due is secured and the security is realized after the
receiving order, or the value thereof is assessed in the proof, the amount
realized or assessed shall be appropriated to the satisfaction of
principal and interest in the proportion that the principal bears to the
sum payable as interest at the agreed rate. [cf. 1914 c. 59 s. 66 U. K.]
72. Final dividend
(1) When the trustee has realized all the property of the bankrupt, or so
much thereof as can be realized without needlessly protracting the
trusteeship, he shall declare a final dividend, but before so doing he
shall give notice in manner prescribed to the persons whose claims to be
creditors have been notified to him, but not established to his
satisfaction, that if they do not establish their claims to the
satisfaction of the court within a time limited by the notice, he will
proceed to make a final dividend without regard to their claims.
(2) After the expiration of the time so limited or if the court on
application by any such claimant grants him further time for establishing
his claim, then on the expiration of such further time, the property of
the bankrupt shall be divided among the creditors who have proved their
debts, without regard to the claims of any other persons. [cf. 1914 c. 59
s. 67 U. K.]
73. No action for dividend
No action for a dividend shall lie against the trustee, but if the trustee
refuses to pay any dividend the court may, if it thinks fit, order him to
pay it and also to pay out of his own money interest thereon for the time
that it is withheld and the costs of the application.
[cf. 1914 c. 59 s. 68 U. K.]
74. Right of bankrupt to surplus
The bankrupt shall be entitled to any surplus remaining after payment in
full of his creditors, with interest, as by this Ordinance provided, and
of the costs, charges and expenses of the proceedings under the bankruptcy
petition.
[cf. 1914 c. 59 s. 69 U. K.]
PART IIIA CRIMINAL BANKRUPTCY
Interpretation
74A. Interpretation
In this Part and in Schedule 1-
"criminal bankruptcy administration petition" means a petition under
section 112 presented by virtue of Schedule 1;
"criminal bankruptcy order" means an order made under section 84A of the
Criminal Procedure Ordinance (Cap. 221);
"criminal bankruptcy petition" means a bankruptcy petition presented by
virtue of Schedule 1.
(Amended 39 of 1992 s. 2)
Official Petitioner
74B. Office and functions of Official Petitioner
(1) For the purposes of discharging, in relation to cases in which a
criminal bankruptcy order is made, the functions mentioned in subsection
(2), there shall be an officer known as the Official Petitioner; and the
Attorney General shall, by virtue of his office, be the Official
Petitioner.
(2) The functions of the Official Petitioner shall be-
(a) to consider whether, in a case where a criminal bankruptcy order is
made, it is in the public interest that he should himself present a
criminal bankruptcy petition;
(b) to present a criminal bankruptcy petition in any such case where he
determines it is in the public interest for him to do so;
(c) to make payments, in such cases as he may determine, towards expenses
incurred by other persons in connexion with proceedings pursuant to a
criminal bankruptcy petition or a criminal bankruptcy administration
petition;
(d) to exercise, so far as he considers it to be in the public interest to
do so, any of the powers conferred on him by Schedule 1. (Amended 39 of
1992 s. 2)
(3) Neither the Official Petitioner nor any person acting under his
authority shall be liable to any action or proceeding in respect of
anything done or omitted in the discharge, or purported discharge, of the
functions of the Official Petitioner under or by virtue of this Ordinance.
(4) Any functions of the Official Petitioner under this Ordinance may be
discharged on his behalf by any person acting with his authority.
[cf. 1972 c. 71 s. 9 U. K.]
General
74C. Effect of criminal bankruptcy order
Schedule 1 shall apply to give effect to the operation of this Ordinance
in a case where a criminal bankruptcy order has been made and to
supplement this Ordinance in relation to dispositions made by a person
against whom such an order has been made. (Amended 39 of 1992 s. 2)
(Part IIIA added 21 of 1979 s. 2)
PART IV OFFICIAL RECEIVER
75. Appointment of Official Receiver and other officers
(1) The Governor may appoint an Official Receiver and such other officers
to hold any of the offices specified in Schedule 2 as may be required to
assist the Official Receiver in the performance of his duties.
(2) No person shall be appointed Official Receiver or to any of the
offices specified in Part I of Schedule 2 unless on the date of such
appointment he is qualified to practise as a legal practitioner in Hong
Kong, the United Kingdom or in a jurisdiction listed in Schedule 1 to the
Legal Practitioners Ordinance (Cap. 159).
(3) The Official Receiver and the holder of an office specified in Part I
of Schedule 2 shall be deemed to be legal officers for the purpose of the
Legal Officers Ordinance (Cap. 87) and shall have all rights conferred
upon legal officers by that Ordinance.
(4) The holder of an office specified in Schedule 2 may, subject to
subsection (5) and any instructions of the Official Receiver, exercise the
powers or perform the duties of the office of the Official Receiver.
(5) The holder of an office specified in Part II of Schedule 2 shall not
exercise any right conferred by subsection (3) on the holder of an office
specified in Part I of Schedule 2.
(6) The Official Receiver shall act under the general authority and
direction of the Governor and shall also be an officer of the court.
(7) The Governor may, by order published in the Gazette, amend Schedule 2.
(Replaced 39 of 1992 s. 3)
76. Status of Official Receiver
(1) The duties of the Official Receiver shall have relation both to the
conduct of the debtor and to the administration of his estate.
(2) The Official Receiver and the holder of an office specified in
Schedule 2 may take any affidavit required by any Ordinance to be made
before or produced or delivered to or filed with the Official Receiver or
the holder of an office specified in Schedule 2 notwithstanding any
Ordinance requiring the taking of such affidavit by or before any other
person.
(Replaced 39 of 1992 s. 4)
(3) All provisions in this or any other Ordinance referring to the trustee
in a bankruptcy shall, unless the context otherwise requires or the
Ordinance otherwise provides, include the Official Receiver when acting as
trustee.
(4) The trustee shall supply the Official Receiver with such information,
and give him such access to and facilities for inspecting the bankrupt's
books and documents, and generally shall give him such aid, as may be
requisite for enabling the Official Receiver to perform his duties under
this Ordinance.
[cf. 1914 c. 59 s. 72. U. K.]
76A. Transitional provision
(1) Any thing done before the commencement of the Bankruptcy (Amendment)
Ordinance 1992 (39 of 1992) by the Registrar General in the capacity of
Official Receiver shall be regarded as having been done by the Official
Receiver at the time when the thing was done.
(2) Any document which contains a reference to the Registrar General in
the capacity of Official Receiver shall have effect on and after the
commencement of the Bankruptcy (Amendment) Ordinance 1992 (39 of 1992)
with the substitution for such reference of a reference to the Official
Receiver.
(3) In any legal proceedings pending on the commencement of the Bankruptcy
(Amendment) Ordinance 1992 (39 of 1992) to which the Registrar General in
the capacity of Official Receiver is a party, the Official Receiver shall
as from such commencement be substituted as a party thereto in lieu of the
Registrar General and the proceedings shall continue as if the Official
Receiver had always been that party.
(4) It this section, "Registrar General" means the Registrar General
appointed under section 2 (1) of the Registrar General (Establishment)
Ordinance (Cap. 100). (Added 39 of 1990
s. 5)
77. Duties of Official Receiver as regards the debtor's conduct
As regards the debtor, it shall be the duty of the Official Receiver-
(a) to investigate the conduct of the debtor and to report to the court,
stating whether there is reason to believe that the debtor has committed
any act which constitutes an indictable offence under this Ordinance or
which would justify the court in refusing, suspending or qualifying an
order for his discharge; (Amended 33 of 1939; G. N. 840 of 1940 Supp.
Schedule; 50 of 1991 s. 4)
(b) to conduct the public examination of the debtor;
(c) to take such part and give such assistance in relation to the
prosecution of any fraudulent debtor as the Attorney General may direct.
(Amended 33 of 1939; G. N. 840 of 1940 Supp. Schedule; 20 of 1948 s. 4)
[cf. 1914 c. 59 s. 73 U. K.]
78. Duties of Official Receiver as to debtor's estate
(1) As regards the estate of a debtor, it shall be the duty of the
Official Receiver-
(a) pending the appointment of a trustee, to act as interim receiver of
the debtor's estate, and where a special manager is not appointed, as
manager thereof;
(b) to raise money in any case where in the interests of the creditors it
appears necessary so to do;
(c) to summon and preside at the first meeting of creditors;
(d) to issue forms of proxy for use at the meetings of creditors; (See
Forms 50, 51)
(e) to report to the creditors as to any proposal which the debtor may
have made with respect to the mode of liquidating his affairs;
(f) to advertise the receiving order, the date of the creditors' first
meeting and of the debtor's public examination, and such other matters as
it may be necessary to advertise; (See Form 27)
(g) to act as trustee during any vacancy in the office of trustee;
(h) to assist the debtor in preparing his statement of affairs in case the
debtor has no solicitor acting for him and is unable properly to prepare
it himself, and for this purpose he may employ at the expense of the
estate any person or persons to assist in its preparation.
(2) For the purpose of his duties as interim receiver or manager the
Official Receiver shall have the same powers as if he were a receiver and
manager appointed by the court, but shall, as far as practicable, consult
the wishes of the creditors with respect to the management of the debtor's
property, and may for that purpose, if he thinks it advisable, summon
meetings of the persons claiming to be creditors, and shall not, unless
the court otherwise orders, incur any expense beyond such as is requisite
for the protection of the debtor's property or the disposing of perishable
goods.
(3) The Official Receiver shall account to the court and pay over all
moneys and deal with all securities in such manner as the court from time
to time directs. [cf. 1914 c. 59 s. 74 U. K.]
PART V TRUSTEES IN BANKRUPTCY
Official name
79. Official name of trustee
The official name of a trustee in bankruptcy shall be "the trustee of the
property of a bankrupt" (inserting the name of the bankrupt), and by that
name the trustee may hold property of every description, make contracts,
sue and be sued, enter into any engagements binding on himself and his
successors in office, and do all other acts necessary or expedient to be
done in the execution of his office.
[cf. 1914 c. 59 s. 76 U. K.]
Appointment
79A. Disqualification for appointment as trustee
No person being an undischarged bankrupt and no body corporate shall be
qualified for appointment to the office of trustee, and-
(a) any appointment made in contravention of this section shall be void;
and
(b) where any such person or any body corporate acts as trustee, such
person or body corporate shall be liable to a fine of $5,000.
(Added 47 of 1984 s. 11)
79B. Corrupt inducement affecting appointment as trustee
Any person who gives or agrees or offers to give to any creditor of a
debtor or bankrupt any valuable consideration with a view to securing his
own appointment or nomination, or to securing or preventing the
appointment or nomination of some person other than himself, as the
trustee shall be liable to a fine of $5,000.
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