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BANKRUPTCY ORDINANCE

BANKRUPTCY ORDINANCE (Added 47 of 1984 s. 11) 80. Power to appoint joint or successive trustees (1) The creditors may, if they think fit, appoint more persons than one to the office of trustee and, when more persons than one are appointed, shall declare whether any act required or authorized to be done by the trustee is to be done by all or any one or more of such persons, but all such persons are in this Ordinance included under the term "trustee" and shall be joint tenants of the property of the bankrupt.

(2) The creditors may also appoint persons to act as trustees in succession in the event of one or more of the persons first named declining to accept the office of trustee or failing to give security, or of the appointment of any such person not being approved by the court.

[cf. 1914 c. 59 s. 77 U. K.] 81. Proceedings in case of vacancy in office of trustee (1) If a vacancy occurs in the office of a trustee the creditors in general meeting may appoint a person to fill the vacancy and thereupon the same proceedings shall be taken as in the case of a first appointment.

(2) The Official Receiver shall, on the requisition of any creditor, summon a meeting for the purpose of filling any such vacancy.

(3) If the creditors do not within 3 weeks after the occurrence of a vacancy appoint a person to fill the vacancy, the Official Receiver shall report the matter to the court, and the court may appoint a trustee.

(4) During any vacancy in the office of trustee the Official Receiver shall act as trustee.

[cf. 1914 c. 59 s. 78 U. K.] Control over trustee 82. Discretionary powers of trustee and control thereof (1) Subject to the provisions of this Ordinance, the trustee shall, in the administration of the property of the bankrupt and in the distribution thereof amongst his creditors, have regard to any directions that may be given by resolution of the creditors at any general meeting or by the committee of inspection, and any directions so given by the creditors at any general meeting shall, in case of conflict, be deemed to override any directions given by the committee of inspection.

(2) The trustee may from time to time summon general meetings of the creditors for the purpose of ascertaining their wishes, and it shall be his duty to summon meetings at such times as the creditors, by resolution, either at the meeting appointing the trustee or otherwise may direct, and it shall be lawful for any creditor, with the concurrence of one-fourth in value of the creditors (including himself), at any time to request the trustee or Official Receiver to call a meeting of the creditors, and the trustee or Official Receiver shall call such meeting accordingly within 14 days: Provided that the person at whose instance the meeting is summoned shall, if so required, deposit with the trustee or the Official Receiver, as the case may be, a sum sufficient to pay the costs of summoning the meeting, such sum to be repaid to him out of the estate if the court so directs.

(3) The trustee may apply to the court in manner prescribed for directions in relation to any particular matter arising under the bankruptcy. (See Forms 131, 132) (4) Subject to the provisions of this Ordinance the trustee shall use his discretion in the management of the estate and its distribution among the creditors. [cf. 1914 c. 59 s. 79 U. K.] 83. Appeal to court against trustee If the bankrupt or any of the creditors or any other person is aggrieved by any act or decision of the trustee, he may apply to the court, and the court may confirm, reverse or modify the act or decision complained of, and make such order in the premises as it thinks just.

[cf. 1914 c. 59 s. 80 U. K.] 84. Control of court over trustee (1) The court shall take cognizance of the conduct of trustees, and in the event of any trustee not faithfully performing his duties and duly observing all the requirements imposed on him by Ordinance, rules or otherwise with respect to the performance of his duties, or in the event of any complaint being made to the court by any creditor in regard thereto by notice duly served on the trustee at least 8 clear days before the date of hearing, the court shall inquire into the matter and take such action thereon as may be deemed expedient.

(2) The court may either of its own motion or on the application of the Official Receiver at any time require any trustee to answer any inquiry made by it or him in relation to any bankruptcy in which the trustee is engaged and may examine on oath the trustee or any other person concerning the bankruptcy.

(3) The court may also direct an investigation to be made of the books and vouchers of the trustee.

[cf. 1914 c. 59 s. 81 U. K.] Remuneration and costs 85. Remuneration of trustee (1) Where the creditors appoint any person to be trustee of a debtor's estate, his remuneration (if any) shall be fixed by an ordinary resolution of the creditors, or, if the creditors so resolve, by the committee of inspection.

(2) Where the remuneration of the trustee is to be a commission upon the amount received by the trustee, then one part shall be payable on the amount realized by the trustee, after deducting any sums paid to secured creditors out of the proceeds of their securities, and the other part on the amount distributed in dividend.

(3) If one-fourth in number or value of the creditors apply to the Official Receiver or the Official Receiver is of the opinion that the remuneration of a trustee should be reviewed, the Official Receiver may apply to the court and thereupon the court may confirm, increase or reduce the remuneration of the trustee.

(4) The resolution or the committee of inspection, as the case may be, shall specify the expenses which the remuneration is to cover, and no liability shall attach to the bankrupt's estate, or to the creditors, in respect of any such expenses.

(5) Where a trustee acts without remuneration he shall be allowed out of the bankrupt's estate such proper expenses incurred by him in or about the proceedings of the bankruptcy as the court may approve.

(6) A trustee shall not under any circumstances whatever make any arrangement for or accept from the bankrupt, or any solicitor, auctioneer or any other person who may be employed about a bankruptcy, any gift, remuneration or pecuniary or other consideration or benefit whatever beyond his said remuneration payable out of the estate, nor shall he make any arrangement for giving up, or give up, any part of his remuneration, whether as receiver, manager or trustee, to the bankrupt or any solicitor or other person who may be employed about a bankruptcy.

(Replaced 26 of 1985 s. 2) 86. Allowance and taxation of costs (1) Where a trustee or manager receives remuneration for his services as such, no payment shall be allowed in his accounts in respect of the performance by any other person of the ordinary duties which are required by Ordinance or rules to be performed by himself.

(2) Where the trustee is a solicitor he may contract that the remuneration for his services as trustee shall include all professional services.

(3) All bills and charges of solicitors, managers, accountants, auctioneers, brokers and other persons, not being trustees, shall be taxed by the Registrar and no payments in respect thereof shall be allowed in the trustee's accounts without proof of such taxation having been made.

The Registrar shall satisfy himself before passing such bills and charges that the employment of such solicitors and other persons, in respect of the particular matters out of which such charges arise, has been duly sanctioned. The sanction must be obtained before the employment, except in cases of urgency, and in such cases it must be shown that no undue delay took place in obtaining the sanction.

(4) Every such person shall, on request by the trustee (which request the trustee shall make a sufficient time before declaring a dividend), deliver his bill of costs or charges to the Registrar for taxation, and if he fails to do so within 7 days after receipt of the request or such further time as the court on application may grant, the trustee shall declare and distribute the dividend without regard to any claim by him, and thereupon any such claim shall be forfeited as well against the trustee personally as against the estate.

[cf. 1914 c. 59 s. 83 U. K.] Receipts, payments, accounts, audit 87. Trustee to furnish list of creditors The trustee or Official Receiver shall, whenever required by any creditor so to do, furnish and transmit to him by post a list of the creditors showing the amount of the debt due to each creditor, and shall be entitled to charge for such list the sum of 25 cents per folio of 72 words.

[cf. 1914 c. 59 s. 84 U. K.] 88. Trustee to furnish statement of accounts It shall be lawful for any creditor, with the concurrence of one-fourth of the creditors (including himself), at any time to call upon the trustee or Official Receiver to furnish and transmit to the creditors a statement of the accounts up to the date of such notice, and the trustee shall upon receipt of such notice furnish and transmit such statement of the accounts: (See Form 150) Provided that the person at whose instance the accounts are furnished shall, if so required, deposit with the trustee or Official Receiver, as the case may be, a sum sufficient to pay the costs of furnishing and transmitting the accounts, which sum shall be repaid to him out of the estate if the court so directs.

[cf. 1914 c. 59 s. 85 U. K.] 89. Annual statement of proceedings (1) Every trustee in a bankruptcy shall from time to time, as may be prescribed, and not less than once in every year during the continuance of the bankruptcy, transmit to the Official Receiver a statement showing the proceedings in the bankruptcy up to the date of the statement, containing the prescribed particulars and made out in the prescribed form.

(2) The Official Receiver shall cause the statements so transmitted to be examined, and shall call the trustee to account for any misfeasance, neglect or omission which may appear on the said statements or in his accounts or otherwise, and may apply to the court for an order that the trustee do make good any loss which the estate of the bankrupt may have sustained by the misfeasance, neglect or omission. [cf. 1914 c. 59 s. 87 U. K.] 90. Trustee not to pay into private account No trustee in a bankruptcy or under any composition or scheme of arrangement shall pay any sums received by him as trustee into his private banking account or use them otherwise than in the administration of the estate.

[cf. 1914 c. 59 s. 88 U. K.] 91. Payment of moneys into bank (1) The Official Receiver shall open in his name as Official Receiver an account at a bank approved by the Governor and shall pay to the credit thereof all sums received by him as such Official Receiver or as trustee, and every trustee in a bankruptcy, other than the Official Receiver, receiving money as such trustee shall open an account at such bank in the name of the debtor's estate and shall pay to the credit of such account all sums which may from time to time be received by him as such trustee: Provided that the Official Receiver may, on the application of the committee of inspection, authorize any other trustee to make his payments into and out of any other bank specified by the committee in such application, and those payments shall be made in the prescribed manner.

(Added 47 of 1984 s. 12) (2) If a trustee at any time retains for more than 10 days a sum exceeding $2,000, or such other amount as the Official Receiver in any particular case may authorize him to retain, then unless he explains the retention to the satisfaction of the Official Receiver, he shall pay interest on the amount so retained in excess at the rate of 20 per cent per annum, and shall have no claim to remuneration, and may be removed from his office by the Official Receiver and shall be liable to pay any expenses occasioned by reason of his default.

(Amended 47 of 1984 s. 12) [cf. 1914 c. 59 s. 89 (5) U. K.] (3) Any trustee paying money into his private banking account or using it otherwise than in the administration of the estate may without prejudice to any other liability be dismissed from office without remuneration and may be ordered by the court to make good all losses and expenses which the creditors may suffer in consequence of his conduct.

92. Record and account to be kept by trustee (1) The trustee shall keep a record in writing in which he shall enter a minute of all proceedings had and resolutions passed at any meeting of creditors or of the committee of inspection and a statement of all negotiations and proceedings necessary to give a correct view of the management of the bankrupt's property. Such record if in Chinese shall be supplemented by a correct English translation thereof and shall be produced for inspection to the Official Receiver at any time on demand.

(2) The trustee shall also keep an account, to be called the estate account, in the form of an ordinary debtor and creditor account, in which he shall enter from day to day all his receipts and payments as trustee.

(3) The trustee shall produce at every meeting of creditors and at every meeting of the committee of inspection the record and account above mentioned and also the pass-book of the estate's bank account, and such documents shall be open to the inspection of any creditor at all reasonable times.

93. Audit of trustee's accounts (1) Every trustee other than the Official Receiver shall, at such times as may be prescribed but not less than once in each year during his tenure of office, send to the Official Receiver an account of his receipts and payments as such trustee.

(2) The account shall be in a prescribed form, shall be made in duplicate and shall be verified by an affidavit in the prescribed form. (See Form 146) (Amended 13 of 1966 Schedule) (3) The trustee shall furnish the Official Receiver with such vouchers and information relating to the account as he requires, and the Official Receiver may at any time require the production of, and inspect, any books or accounts kept by the trustee. (Replaced 39 of 1987 s. 3) (3A) The Official Receiver may at any time cause the account to be audited. (Added 39 of 1987 s. 3) (4) When any such account has been audited (or, as the case may be, forthwith if the Official Receiver decides that the account need not be audited) one copy thereof shall be filed and kept by the Official Receiver, and the other copy shall be delivered to the court for filing, and each copy shall be open on payment of the prescribed fee to the inspection of any creditor or of the bankrupt or of any person interested.

(Amended 39 of 1987 s. 3) (4A) Notwithstanding the fact that unaudited copies of an account have already been filed, the Official Receiver may subsequently cause that account to be audited, and in that event a copy of the audited account shall be filed and kept by the Official Receiver, and a further copy shall be delivered to the court for filing, and each copy shall be open, upon payment of the prescribed fee, to the inspection of any creditor or of the bankrupt or of any person interested. (Added 39 of 1987 s. 3) (5) The court may if it so desires examine the trustee and, after hearing the explanation, if any, of the trustee, make such order as it may think just for compelling the trustee to make good any loss to the estate which may appear to the court to have been occasioned by any misfeasance, neglect or improper conduct or omission of the trustee. (Amended 39 of 1987 s. 3) [cf. 1914 c. 59 s. 92 U. K.] Vacation of office by trustee 94. Release of trustee (1) When the trustee has realized all the property of the bankrupt or so much thereof as can, in his opinion, be realized without needlessly protracting the trusteeship, and distributed a final dividend, if any, or has ceased to act by reason of a composition having been approved, or has resigned or has been removed from his office, he shall apply to the court for his release, and if all the requirements of the court with respect to accounts and with respect to any order of the court against the trustee have been fulfilled, the court may make an order for release accordingly.

(See Forms 137, 152, 153) (2) Where the release of a trustee is withheld the court may, on the application of any creditor or person interested, make such order as it thinks just, charging the trustee with the consequences of any act or default he may have done or made contrary to his duty.

(3) An order of the court releasing the trustee shall discharge him from all liability in respect of any act done or default made by him in the administration of the affairs of the bankrupt, or otherwise in relation to his conduct as trustee, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact.

(4) The provisions of subsections (1), (2) and (3) shall apply to the Official Receiver when he is or is acting as trustee, and when the Official Receiver has been released under this section or any previous similar enactment he shall continue to act as trustee for any subsequent purposes of the administration of the debtor's estate but no liability shall attach to him personally by reason of his so continuing in respect of any act done, default made or liability incurred before his release.

(5) Where the trustee has not previously resigned or been removed, his release shall operate as a removal of him from his office, and thereupon the Official Receiver shall be the trustee.

(6) Where on the release of a trustee the Official Receiver is or is acting as trustee, no liability shall attach to him personally in respect of any act done or default made or liability incurred by any prior trustee.

[cf. 1914 c. 59 s. 93 U. K.] 95. Office of trustee vacated by insolvency If a receiving order is made against a trustee he shall thereby vacate his office of trustee.

[cf. 1914 c. 59 s. 94 U. K.] 96. Removal of trustee (1) The creditors may by ordinary resolution, at a meeting specially called for that purpose of which 7 days' notice has been given, remove a trustee, other than the Official Receiver, appointed by them, and may at the same or any subsequent meeting appoint another person to fill the vacancy as provided in case of a vacancy in the office of trustee.

(2) If the court is of opinion- (a) that a trustee appointed by the creditors is guilty of misconduct or fails to perform his duties under this Ordinance; or (b) that his trusteeship is being needlessly protracted without any probable advantage to the creditors; or (c) that he is by reason of lunacy or continued sickness or absence incapable of performing his duties; or (d) that his connexion with or relation to the bankrupt or his estate or any particular creditor might make it difficult for him to act with impartiality in the interest of the creditors generally; or (e) that the interests of the creditors require it, the court may remove him from his office and appoint another person in his place.

[cf. 1914 c. 59 s. 95 U. K.] PART VI CONSTITUTION, PROCEDURE AND POWERS OF COURT Jurisdiction 97. General power of court (1) Subject to the provisions of this Ordinance, the court shall have full power to decide all questions of priorities and all other questions whatsoever, whether of law or fact, which may arise in any case of bankruptcy coming within the cognizance of the court or which the court may deem it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property in any such case.

(2) If in any proceeding in bankruptcy there arises any question of fact which either of the parties desires to be tried before a jury instead of by the court itself or which the court thinks ought to be tried by a jury, the court may, if it thinks fit, direct the trial to be had with a jury and the trial may be had accordingly. (See Form 133) [cf. 1914 c. 59 s.

105 U. K.] Review and appeals 98. Review and appeals in bankruptcy (1) The court or the Registrar may review, rescind or vary any order made by it or him, as the case may be, under its or his bankruptcy jurisdiction. (Replaced 78 of 1991 s. 2) (2) Every order of the court or the Registrar shall be subject to appeal to the Court of Appeal. The appeal shall be commenced within 21 days from the time when the decision appealed against is pronounced or made.

(Amended 92 of 1975 s. 59; 78 of 1991 s. 2) [cf. 1914 c. 59 s. 108 U. K.] Procedure 99. General rules of procedure (1) The rules and practice of the Supreme Court for the time being for regulating the ordinary civil procedure of the court shall, so far as the same may be applicable and not inconsistent with the provisions of this Ordinance, be applied to bankruptcy proceedings, and every order of the court made in connexion with bankruptcy proceedings may be enforced in the same way as a judgment of the court made in respect of any other civil proceedings may be enforced.

(2) The Registrar shall in cases of urgency have power to make interim orders and to hear and determine unopposed or ex parte applications and any order so made shall, subject to an appeal to the court, be deemed to be an order of the court.

(3) Subject to rules made under section 113 limiting the power conferred by this subsection, the Registrar sitting in open court shall have power to hear and determine- (a) unopposed bankruptcy petitions and to make receiving orders thereon; (b) applications to rescind receiving orders or to annul an adjudication; (c) applications to approve compositions or schemes of arrangement; and (d) applications for orders of discharge.

(Replaced 78 of 1991 s. 3) 99A. Jurisdiction of Registrar (1) Unless otherwise ordered by the court in a particular case, the Registrar may exercise and perform the powers and duties conferred or imposed upon the court by sections 19 and 29.

(2) The Registrar may, if he exercises the jurisdiction conferred on him by subsection (1) or section 99 (3) - (Amended 78 of 1991 s. 4) (a) refer any matter for the decision or direction of a judge; and (b) at any time adjourn an examination for further hearing before a judge.

(3) A judge may, if a matter is referred to him under subsection (2) (a), dispose of it himself or refer it back to the Registrar with such directions as he thinks fit.

(4) A judge may, if an examination is adjourned under subsection (2) (b) for further hearing before a judge- (a) continue the examination; (b) at any time direct that the examination be continued before the Registrar; and (c) make such other order and give such directions as he may consider proper.

(5) Any reference in this Ordinance to the court shall include a reference to the Registrar exercising the jurisdiction conferred on him by this section.

(6) Not with standing subsection (5), the Registrar, when exercising the jurisdiction conferred by this section, shall not have power to make an order for the committal of a person for contempt of court.

(7) In this section- "Registrar" means- (a) the Registrar of the Supreme Court; (b) any Deputy Registrar of the Supreme Court; and (c) any Assistant Registrar of the Supreme Court appointed by the Chief Justice for the purposes of this section. (Added 50 of 1970 s. 2) 100. Discretionary powers of court (1) Subject to the provisions of this Ordinance and to general rules, the costs of and incidental to any proceeding in court under this Ordinance shall be in the discretion of the court: Provided that, where any issue is tried by a jury, the costs shall follow the event unless, upon application made at the trial, for good cause shown, the judge before whom such issue is tried otherwise orders.

(2) The court may at any time adjourn any proceedings before it upon terms, if any, as it may think fit to impose.

(3) The court may at any time amend any written process or proceeding under this Ordinance upon such terms, if any, as it may think fit to impose.

(4) Where by this Ordinance or by general rules the time for doing any act or thing is limited, the court may extend the time either before or after the expiration thereof upon such terms, if any, as the court may think fit to impose.

(5) Subject to general rules, the court may in any matter take the whole or any part of the evidence viva voce or by interrogatories or upon affidavit or, out of Hong Kong, by commission. (Amended 47 of 1984 s. 16) [cf. 1914 c. 59 s. 109 U. K.] 100A. Court may make a regulating order (1) Where it appears to the court on application being made by the Official Receiver or by any creditor at any time after the presentation of a bankruptcy petition, whether presented before or after the commencement of the Bankruptcy (Amendment) Ordinance 1965 (21 of 1965), that by reason of the large number of creditors or for any other reason the interest of the creditors so requires, it may, on or after the making of a receiving order, order that the bankruptcy proceedings shall be regulated specially by the court, and such order shall be known as a regulating order.

(2) A regulating order shall be published in such manner as the court may direct, and sections 100B to 100H inclusive shall apply to the bankruptcy proceedings where a regulating order has been made but not otherwise.

(3) Where a regulating order is made the Bankruptcy Rules (Cap. 6 sub.

leg.) shall apply mutatis mutandis to the Official Receiver, trustee and committee of inspection appointed or acting after the making of a regulating order, and to the conduct of any ballot or other proceedings ordered by the court under section 100B or 100F.

(4) Where any order made under sections 100B to 100G inclusive prescribes any procedure it shall be deemed to be in substitution for the procedure which would be required by this Ordinance but for the making of such order, and in particular where any such order prescribes a procedure for doing something which would otherwise be done at a meeting of creditors no such meeting shall be required to be held.

(Added 21 of 1965 s. 2) 100B. First meeting and composition (1) The court may on the application of the Official Receiver by order dispense with the summoning of the first meeting of creditors required under section 17.

(2) The court may order that the wishes of creditors be ascertained for the purpose of accepting or rejecting any composition in such manner as it may direct without the holding of meetings under section 20 or 25, and for such purpose may direct the manner in which any composition be communicated to such creditors.

(3) Without derogating from the generality of subsection (2) the court may direct the holding of a ballot and the use of voting letters.

(4) Notwithstanding anything in section 20 or 25, where a majority in number and three-fourths in value of all the creditors who have proved their debt, or who by virtue of section 100H are deemed for voting purposes to have proved a debt exceeding $100, agree to accept a composition, the composition shall be deemed to be duly accepted by the creditors, and when approved by the court shall be binding on all the creditors.

(5) For the purposes of this section and section 100C, "composition" means any proposal for a composition in satisfaction of the debts of the debtor or for any scheme of arrangement of the affairs of the debtor.

(Added 21 of 1965 s. 2) 100C. Adjudication (1) The court shall on application being made by the Official Receiver adjudge the debtor bankrupt unless- (a) within 1 month of the date of the receiving order the debtor submits a proposal under section 20 which- (i) in the opinion of the Official Receiver appears to be reasonable and calculated to benefit the general body of creditors; and (ii) is one which the court is not bound to refuse to approve; and (b) the court approves the composition.

(2) On the adjudication the property of the bankrupt shall become divisible among his creditors and shall vest in a trustee.

(3) The provisions of this section shall be in substitution for section 22 (1). (Added 21 of 1965 s. 2) 100D. Trustee (1) The court may on application being made by the Official Receiver by order appoint the Official Receiver or such other person recommended by him trustee of the property of the bankrupt, remove any trustee and fill any vacancy. Upon making any order for the appointment or removal of a trustee or for filling any vacancy the provisions of section 23 (1) and (4), 81 (1), (2) and (3) or 96 (1), as the case may be, shall cease to apply to the bankruptcy and any action taken under such provisions in respect of any appointment or removal of a trustee or filling of any vacancy shall cease to have effect.

(2) The court may by order give such directions to a trustee as it shall think fit. Such directions shall be deemed to be the directions of creditors for the purposes of section 82. Neither a trustee not the Official Receiver shall be required to summon any meetings of creditors save where the court so orders.

(Added 21 of 1965 s. 2) 100E. Committee of inspection (1) The court may on application being made by the Official Receiver or trustee by order appoint such qualified persons as it thinks fit as a committee of inspection for the purpose of superintending the administration of the property of the bankrupt by the trustee, remove any member thereof and fill any vacancy therein.

(2) The continuing members of the committee, provided there be not less than 2 such continuing members, may act notwithstanding any vacancy in their body.

(3) Upon the making of any order for such appointment, removal or filling of a vacancy the provisions of section 24 (1), (7), (8) or (9), as the case may be, shall cease to apply to the bankruptcy and any action taken under such provisions in respect of any appointment of a committee of inspection, any removal of any member thereof or the filling of any vacancy therein shall cease to have effect.

(Added 21 of 1965 s. 2) 100F. Informing creditors and ascertaining their wishes The court may by order give such directions to the Official Receiver or trustee as it shall think fit for the purpose of keeping creditors informed of any matter relating to the bankruptcy and for ascertaining their wishes, and may require the Official Receiver or trustee to make such reports to the court as it may specify.

(Added 21 of 1965 s. 2) 100G. Creditors to give notice of intention to take part in public examination (1) The court may order that any creditor wishing to exercise his right to question the debtor on his public examination under section 19 (4) shall give notice in writing of such intention to the Official Receiver, and may direct that no creditor may exercise such right unless notice is received by the Official Receiver within such time as may be specified.

(2) For the purpose of this section the court may direct that notice of the public examination of a debtor shall be published in such manner as it may specify, and notice of such examination or of adjourned hearings thereof shall not be required to be sent to creditors individually.

(Added 21 of 1965 s. 2) 100H. Proof of debts in the case of banks (1) Where the bankrupt was carrying on the business of a bank, any creditor who is a depositor, whether on current, savings, deposit, fixed deposit or other account, shall, unless and until the Official Receiver by notice in writing requires him to make a formal proof of debt, be deemed to have proved his debt- (a) for voting purposes, for the net balance to his credit in the books of the bank on all his accounts taken together, at the date of the receiving order: Provided that if the said balance does not exceed $100 he shall not be deemed to have proved his debt for the purposes of sections 20 (2) and (4), 25 (1) and 100B (4); and (b) for dividend purposes, for the said balance plus or minus, as the case may be, the net amount of interest accrued due by or to the bank on the said accounts at the date of the receiving order.

(2) Any debt which is deemed to have been proved by virtue of subsection (1) shall be treated as if a proof thereof had been duly lodged in due time with the Official Receiver or trustee and had been admitted for voting and dividend purposes respectively for the said amounts stated in subsection (1).

(Added 21 of 1965 s. 2) 101. Consolidation of petitions Where 2 or more bankruptcy petitions are presented against the same debtor or against joint debtors the court may consolidate the proceedings or any of them on such terms as the court thinks fit.

[cf. 1914 c. 59 s. 110 U. K.] 102. Power to change carriage of proceedings Where the petitioner does not proceed with due diligence on his petition the court may either dismiss the petition or substitute as petitioner any other creditor to whom the debtor may be indebted in the amount required by this Ordinance in the place of the petitioning creditor.

[cf. 1914 c. 59 s. 111 U. K.] 103. Continuance of proceedings on death of debtor If a debtor by or against whom a bankruptcy petition has been presented dies, the proceedings in the matter shall, unless the court otherwise orders, be continued as if he were alive.

[cf. 1914 c. 59 S. 112 U. K.] 104. Power to stay proceedings The court may at any time, for sufficient reason, make an order staying the proceedings under a bankruptcy petition, either altogether or for a limited time, on such terms and subject to such conditions as the court may think just.

[cf. 1914 c. 59 s. 113 U. K.] 105. Power to present petition against one partner Any creditors whose debt is sufficient to entitle him to present a bankruptcy petition against all the partners of a firm may present a petition against any one or more partners of the firm without including the others.

[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)

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