MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ORDINANCE - SCHEDULE 2 ENFORCEMENT, ETC. OF EXTERNAL CONFISCATION ORDERS

Hong Kong Ordinances

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MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS ORDINANCE - SCHEDULE 2

ENFORCEMENT, ETC. OF EXTERNAL CONFISCATION ORDERS

(Past version on 09/26/1997).

[sections 27, 28, 29,
30 & 35]

1. Interpretation

(1) In this Schedule, unless the context otherwise requires-
"interest" (權益), in relation to property, includes right;
"property" (財產) includes both movable and immovable property within the meaning of section 3 of the Interpretation and General Clauses Ordinance (Cap 1);
"Registrar" (司法常務官) means the Registrar of the High Court; (Amended 25 of 1998 s. 2)
"relevant asset" (有關資產) means-

(a) any land, within the meaning of section 2 of the High Court Ordinance (Cap 4), in Hong Kong; (Amended 25 of 1998 s. 2)

(b) any Government stock within the meaning of section 2 of that Ordinance;

(d) any stock, within the meaning of section 20A of that Ordinance, of any body incorporated outside Hong Kong or of any place outside Hong Kong, being stock registered in a register kept at any place within Hong Kong; or

(e) any units of any unit trust, within the meaning of section 20A of that Ordinance, in respect of which a register of the unit holders is kept at any place within Hong Kong.

(2) The expressions listed in the left hand column below are respectively defined or (as the case may be) fall to be construed in accordance with the provisions of this Schedule listed in the right hand column in relation to those expressions.

Expression	Relevant provision
Charging order (押記令) .......................................................................	Section 8(2)
Defendant (被告人) .............................................................................	Section 3
Gift caught by this Schedule (受本附表囿制的饋贈) ............................	Section 5(6)
Making a gift (作出饋贈) .....................................................................	Section 5(7)
Realisable property (可變現財產) .........................................................	Section 5(1)
Restraint order (限制令) .......................................................................	Section 7(1)
Value of gift, payment or reward (饋贈、付款或酬賞的價值) .............	Section 5(4)
Value of property (財產的價值) ...........................................................	Section 5(3)

(3) This Schedule applies to property whether it is situated in Hong Kong or elsewhere.
(4) References in this Schedule to property received in connection with an external serious offence include a reference to property received both in that connection and in some other connection, and whether received before or after the commencement of this Schedule and whether received in connection with an external serious offence committed by the recipient or some other person.
(5) Subsections (6) to (11) shall have effect for the interpretation of this Schedule.
(6) Property is held by any person if he holds any interest in it.
(7) References to property held by a person include a reference to property vested in his trustee in bankruptcy or in a liquidator.
(8) References to an interest held by a person beneficially in property include, where the property is vested in his trustee in bankruptcy or in a liquidator, a reference to an interest which would be held by him beneficially if the property were not so vested.
(9) Property is transferred by one person to another if the first person transfers or grants to the other any interest in the property.
(10) Proceedings are concluded in a place outside Hong Kong-

(a) when, disregarding any power of a court to grant leave to appeal out of time, there is no further possibility of an external confiscation order being made in the proceedings;

(b) on the satisfaction of an external confiscation order made in the proceedings (whether by the recovery of all property liable to be recovered, or the payment of any amount due, or otherwise).

(11) An order is subject to appeal until (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal on which the order could be varied or set aside.

2. Application

This Schedule shall not apply to an external confiscation order except an external confiscation order-

(a) the subject of a request under section 27 of this Ordinance; and

(b) in relation to which the Secretary for Justice has decided to act, for the place which made the request, under the provisions of this Schedule. (Amended L.N. 362 of 1997)

3. Defendants under external confiscation orders

A person (however described in the proceedings in the place outside Hong Kong concerned) against whom, or in relation to whose property, an external confiscation order has been, or may be, made is referred to in this Schedule as "the defendant" (被告人).

4. Interest on amounts to be recovered under
external confiscation orders

(1) Where a fixed amount is payable under an external confiscation order, that amount shall be treated as a judgment debt for the purposes of section 49 of the High Court Ordinance (Cap 4) and, for those purposes, the date on which the external confiscation order was registered under section 28 of this Ordinance shall be treated as the date of the judgment debt. (Amended 25 of 1998 s. 2)
(2) Where by virtue of subsection (1) any interest accrues on the amount payable under an external confiscation order, the defendant shall be liable to pay that interest and the amount of the interest shall for the purposes of enforcement be treated as part of the amount payable under the external confiscation order.

5. Definition of principal terms used

(1) In this Schedule, "realisable property" (可變現財產) means, subject to subsection (2)-

(a) in relation to an external confiscation order-

(i) made in respect of specified property, the property which is specified in the order;

(ii) which may be made as the result of proceedings which have been, or are to be, instituted in a place outside Hong Kong, the property which may be specified in the order; and

(b) in any other case-

(i) any property held by the defendant;

(ii) any property held by a person to whom the defendant has directly or indirectly made a gift caught by this Schedule; and

(iii) any property that is subject to the effective control of the defendant.

(2) Property is not realisable property if-

(a) an order under section 102 or 103 of the Criminal Procedure Ordinance (Cap 221); or

(b) an order under section 38F or 56 of the Dangerous Drugs Ordinance (Cap 134),

is in force in respect of the property.
(3) Subject to the following subsections, for the purposes of this Schedule the value of property (other than cash) in relation to any person holding the property-

(a) where any other person holds an interest in the property, is-

(i) the market value of the first-mentioned person's beneficial interest in the property, less

(ii) the amount required to discharge any incumbrance (other than a charging order) on that interest; and

(b) in any other case, is its market value.

(4) Subject to subsection (7), references in this Schedule to the value at any time (referred to in subsection (5) as "the material time" (關鍵時間)) of a gift caught by this Schedule or of any payment or reward are references to-

(a) the value of the gift, payment or reward to the recipient when he received it adjusted to take account of subsequent changes in the value of money; or

(b) where subsection (5) applies, the value there mentioned,

whichever is the greater.
(5) Subject to subsection (7), if at the material time the recipient holds-

(a) the property which he received (not being cash); or

(b) property which, in whole or in part, directly or indirectly represents in his hands the property which he received,

the value referred to in subsection (4)(b) is the value to him at the material time of the property mentioned in paragraph (a) or, as the case may be, of the property mentioned in paragraph (b) so far as it so represents the property which he received, but disregarding in either case any charging order.
(6) A gift (including a gift made before the commencement of this Schedule) is caught by this Schedule if-

(a) it was made by the defendant at any time since the beginning of the period of 6 years ending when the proceedings were instituted against him; or

(b) it was made by the defendant at any time and was a gift of property-

(i) received by the defendant in connection with an external serious offence committed by him or another; or

(ii) which in whole or in part directly or indirectly represented in the defendant's hands property received by him in that connection.

(7) For the purposes of this Schedule-

(a) the circumstances in which the defendant is to be treated as making a gift include those where he transfers property to another person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration provided by the defendant; and

(b) in those circumstances, the preceding provisions of this section shall apply as if the defendant had made a gift of such share in the property as bears to the whole property the same proportion as the difference between the values referred to in paragraph (a) bears to the value of the consideration provided by the defendant.

(8) For the purposes of subsection (1)-

(a) property, or an interest in property, may be subject to the effective control of the defendant whether or not the defendant has-

(i) a legal or equitable estate or interest in the property; or

(ii) a right, power or privilege in connection with the property;

(b) without limiting the generality of any other provision of this Schedule, in determining-

(i) whether or not property, or an interest in property, is subject to the effective control of the defendant; or

(ii) whether or not there are reasonable grounds to believe that property, or an interest in property, is subject to the effective control of the defendant,

regard may be had to-

(A) shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property;

(B) a trust that has a relationship to the property; and

(C) family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in subparagraph (A) or trusts of the kind referred to in subparagraph (B), and other persons.

6. Cases in which restraint orders and charging
orders may be made

(1) The powers conferred on the Court of First Instance by sections 7(1) and 8(1) are exercisable where-

(a) proceedings have been instituted in a place outside Hong Kong;

(b) the proceedings have not been concluded; and

(c) either an external confiscation order has been made in the proceedings or it appears to the Court of First Instance that there are reasonable grounds for believing that an external confiscation order may be made in them.

(2) Those powers are also exercisable where the Court of First Instance is satisfied that proceedings are to be instituted in a place outside Hong Kong and it appears to the court that an external confiscation order may be made in them.
(3) Where the Court of First Instance has made an order under section 7(1) or 8(2) by virtue of subsection (2), it shall discharge the order if the proposed proceedings are not instituted within such time as the Court of First Instance considers reasonable.

(Amended 25 of 1998 s. 2)

7. Restraint orders

(1) The Court of First Instance may by order (in this Schedule referred to as a "restraint order" (限制令)) prohibit any person from dealing with any realisable property, subject to such conditions and exceptions as may be specified in the order.
(2) A restraint order may apply to any realisable property, including property transferred to a person after the making of the order.
(3) This section shall not have effect in relation to any property for the time being subject to a charge under section 8.
(4) A restraint order-

(a) may be made only on an application by the Secretary for Justice or, in a case where an external confiscation order has been registered under section 28 of this Ordinance, by a receiver appointed under section 9 or the Secretary for Justice; (Amended L.N. 362 of 1997)

(b) may be made on an ex parte application to a judge in chambers; and

(c) may, notwithstanding anything in Order 11 of the Rules of the High Court (Cap 4 sub. leg.), provide for service on, or the provision of notice to, persons affected by the order in such manner as the Court of First Instance may direct.

(5) A restraint order-

(a) may be discharged or varied in relation to any property; and

(b) shall be discharged when the proceedings in relation to which the order was made are concluded.

(6) An application for the discharge or variation of a restraint order may be made by any person affected by it.
(7) Where the Court of First Instance has made a restraint order, the Court of First Instance may at any time appoint a receiver-

(a) to take possession of any realisable property; and

(b) in accordance with the directions of the Court of First Instance, to manage or otherwise deal with any property in respect of which he is appointed,

subject to such conditions and exceptions as may be specified by the Court of First Instance; and may require any person having possession of property in respect of which a receiver is appointed under this section to give possession of it to the receiver.
(8) Where the Court of First Instance has made a restraint order, an authorized officer may, for the purpose of preventing any realisable property being removed from Hong Kong, seize the property.
(9) Property seized under subsection (8) shall be dealt with in accordance with the directions of the Court of First Instance. (Amended 71 of 1999 s. 3)
(10) Where any property specified in a restraint order is immovable property the order shall, for the purposes of the Land Registration Ordinance (Cap 128)-

(a) be deemed to be an instrument affecting land; and

(b) be registrable as such in the Land Registry under that Ordinance in such manner as the Land Registrar thinks fit.

(11) An authorized officer may, by notice in writing served on a person who holds any realisable property the subject of a restraint order, require the person to deliver to the authorized officer, to the extent that it is practicable to do so, documents, or copies of documents, or any other information (in whatever form), in his possession or control which may assist the authorized officer to determine the value of the property. (Added 26 of 2002 s. 5)
(12) A person who receives a notice under subsection (11) shall, as soon as is practicable after receipt of the notice, comply with the notice to the extent that it is practicable to do so taking into account the nature of the realisable property the subject of the restraint order concerned. (Added 26 of 2002 s. 5)
(13) A disclosure made in order to comply with a requirement under subsection (11)-

(a) shall not be treated as a breach of any restriction upon the disclosure of information imposed by contract or by any enactment, rule of conduct or other provision;

(b) shall not render the person who made it liable in damages for any loss arising out of-

(i) the disclosure;

(ii) any act done or omitted to be done in relation to the property concerned in consequence of the disclosure. (Added 26 of 2002 s. 5)

(14) Any person who contravenes subsection (12) commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 1 year. (Added 26 of 2002 s. 5)
(15) A person who knowingly deals in any realisable property in contravention of a restraint order commits an offence. (Added 26 of 2002 s. 5)
(16) A person who commits an offence under subsection (15) is liable-

(a) on conviction upon indictment to a fine of $500000 or to the value of the realisable property the subject of the restraint order concerned which has been dealt with in contravention of that order, whichever is the greater, and to imprisonment for 5 years; or

(b) on summary conviction to a fine of $250000 and to imprisonment for 2 years. (Added 26 of 2002 s. 5)

(Amended 25 of 1998 s. 2)

8. Charging orders in respect of land, securities, etc.

(1) The Court of First Instance may make a charging order on realisable property for securing the payment to the Government-

(a) where a fixed amount is payable under an external confiscation order, of an amount not exceeding the amount so payable; and

(b) in any other case, of an amount equal to the value from time to time of the property charged.

(2) For the purposes of this Schedule, a charging order is an order made under this section imposing on any such realisable property as may be specified in the order a charge for securing the payment of money to the Government.
(3) A charging order-

(b) may be made on an ex parte application to a judge in chambers;

(d) may be made subject to such conditions as the Court of First Instance thinks fit and, without prejudice to the generality of this paragraph, such conditions as it thinks fit as to the time when the charge is to become effective.

(4) Subject to subsection (6), a charge may be imposed by a charging order only on-

(a) any interest in realisable property, being an interest held beneficially by the defendant or by a person to whom the defendant has directly or indirectly made a gift caught by this Schedule-

(i) in any relevant asset; or

(ii) under any trust; or

(b) any interest in realisable property held by a person as trustee of a trust if the interest is in such an asset or is an interest under another trust and a charge may by virtue of paragraph (a) be imposed by a charging order on the whole beneficial interest under the first-mentioned trust.

(5) In any case where a charge is imposed by a charging order on any interest in a relevant asset, the Court of First Instance may provide for the charge to extend to any interest, dividend or other distribution payable and any bonus issue in respect of the asset.
(6) The Court of First Instance may make an order discharging or varying the charging order and shall make an order discharging the charging order if the proceedings in the place outside Hong Kong are concluded or the amount payment of which is secured by the charge is paid into the Court of First Instance.
(7) An application for the discharge or variation of a charging order may be made by any person affected by it.
(8) Subject to the provisions of this Schedule, a charge imposed by a charging order shall have the like effect and shall be enforceable in the same manner as an equitable charge created by the person holding the beneficial interest or, as the case may be, the trustee, by writing under his hand.
(9) An authorized officer may, by notice in writing served on a person who holds any realisable property the subject of a charging order, require the person to deliver to the authorized officer, to the extent that it is practicable to do so, documents, or copies of documents, or any other information (in whatever form), in his possession or control which may assist the authorized officer to determine the value of the property. (Added 26 of 2002 s. 5)
(10) A person who receives a notice under subsection (9) shall, as soon as is practicable after receipt of the notice, comply with the notice to the extent that it is practicable to do so taking into account the nature of the realisable property the subject of the charging order concerned. (Added 26 of 2002 s. 5)
(11) A disclosure made in order to comply with a requirement under subsection (9)-

(a) shall not be treated as a breach of any restriction upon the disclosure of information imposed by contract or by any enactment, rule of conduct or other provision;

(b) shall not render the person who made it liable in damages for any loss arising out of-

(i) the disclosure;

(ii) any act done or omitted to be done in relation to the property concerned in consequence of the disclosure. (Added 26 of 2002 s. 5)

(12) Any person who contravenes subsection (10) commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 1 year. (Added 26 of 2002 s. 5)
(13) A person who knowingly deals in any realisable property in contravention of a charging order commits an offence. (Added 26 of 2002 s. 5)
(14) A person who commits an offence under subsection (13) is liable-

(a) on conviction upon indictment to a fine of $500000 or to the value of the realisable property the subject of the charging order concerned which has been dealt with in contravention of that order, whichever is the greater, and to imprisonment for 5 years; or

(b) on summary conviction to a fine of $250000 and to imprisonment for 2 years. (Added 26 of 2002 s. 5)

(Amended 25 of 1998 s. 2)

9. Realisation of property

(1) Where an external confiscation order has been registered under section 28 of this Ordinance, the Court of First Instance may, on an application by the Secretary for Justice, exercise the powers conferred by subsections (2) to (6). (Amended L.N. 362 of 1997)
(2) The Court of First Instance may appoint a receiver in respect of realisable property.
(3) The Court of First Instance may empower a receiver appointed under subsection (2), under section 7 or in pursuance of a charging order-

(a) to enforce any charge imposed under section 8 on realisable property or on any interest, dividend or other distribution payable and any bonus issue in respect of such property; and

(b) in relation to any realisable property other than property for the time being subject to a charge under section 8, to take possession of the property subject to such conditions or exceptions as may be specified by the Court of First Instance.

(4) The Court of First Instance may order any person having possession of realisable property to give possession of it to any such receiver.
(5) The Court of First Instance may empower any such receiver to realise any realisable property in such manner as the Court of First Instance may direct.
(6) The Court of First Instance may order any person holding an interest in realisable property to make such payment to the receiver in respect of any beneficial interest held by the defendant or, as the case may be, the recipient of a gift caught by this Schedule as the Court of First Instance may direct and the Court of First Instance may, on the payment being made, by order transfer, grant or extinguish any interest in the property.
(7) Subsections (4) to (6) do not apply to property for the time being subject to a charge under section 8.
(8) The Court of First Instance shall not in respect of any property exercise the powers conferred by subsection (3)(a), (5) or (6) unless a reasonable opportunity has been given for persons holding any interest in the property to make representations to the Court of First Instance.

(Amended 25 of 1998 s. 2)

10. Application of proceeds of realisation and other sums

(1) Subject to subsection (2), the following sums in the hands of a receiver appointed under section 7 or 9 or pursuant to a charging order, that is-

(a) the proceeds of the enforcement of any charge imposed under section 8;

(b) the proceeds of the realisation, other than by the enforcement of such a charge, of any property under section 7 or 9; and

shall first be applied in payment of such expenses incurred by a person acting as an insolvency officer as are payable under section 14(2) and then shall, after such payments, if any, as the Court of First Instance may direct have been made out of those sums be paid to the Registrar and applied for the purposes specified in subsections (3) to (5) and in the order so specified. (Amended 25 of 1998 s. 2)
(2) Where a fixed amount is payable under the external confiscation order and, after that amount has been fully paid, any such sums remain in the hands of such a receiver, the receiver shall distribute those sums-

(a) among such of those who held property which has been realised under this Schedule; and

(b) in such proportions,

as the Court of First Instance may direct after giving a reasonable opportunity for such persons to make representations to the Court of First Instance. (Amended 25 of 1998 s. 2)
(3) Any sums paid to the Registrar under subsection (1) or otherwise in satisfaction of an external confiscation order shall be first applied to pay any expenses incurred by a person acting as an insolvency officer and payable under section 14(2) but not already paid under subsection (1).
(4) If the sum was paid to the Registrar by a receiver appointed under section 7 or 9 or pursuant to a charging order the Registrar shall next pay the receiver's remuneration and expenses.
(5) After making-

(a) any payment required by subsection (3); and

(b) in a case to which subsection (4) applies, any payment required by that subsection,

the Registrar shall reimburse any amount paid under section 15(2).
(6) Subject to subsections (7) and (8)-

(a) any balance in the hands of the Registrar after he has made all payments required by the foregoing subsections shall be deposited in an interest-bearing account;

(b) upon the expiration of 5 years beginning with the day on which such balance was so deposited, the Registrar shall arrange for such balance, together with any interest earned thereon, to be paid into the general revenue.

(7) On an application made by or on behalf of the government of a prescribed place before the expiration of the period referred to in subsection (6)(b) in respect of any balance referred to in that subsection, the Secretary for Justice may direct the Registrar to pay to that government such proportion of that balance as is specified in the direction and the Registrar shall, as soon as is reasonably practicable after the receipt of that direction- (Amended L.N. 362 of 1997)

(a) comply with the direction; and

(b) pay any remainder of that balance, together with any interest earned on that balance, into the general revenue.

(8) The Registrar shall not comply with subsection (6)(b) in respect of any balance referred to in that subsection (including any interest earned thereon) until any application referred to in subsection (7) made in respect of that balance has been determined, whether by a direction under subsection (7) or otherwise.
(9) Where an application under subsection (8) of the relevant section has not been determined before the relevant day, then this section shall, with all necessary modifications, apply to and in relation to the application as if the application were an application under subsection (7), and the other provisions of this Ordinance shall be construed accordingly.
(10) In this section-
"relevant day" (有關日期) means the day on which section 14 of Schedule 3 comes into operation;
"relevant Order" (有關命令) means the Drug Trafficking (Recovery of Proceeds) (Designated Countries and Territories) Order (Cap 405 sub. leg.) as in force immediately before the relevant day;
"relevant section" (有關條文) means section 13 of the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap 405) as applied under paragraph 3(2) of the relevant Order.

11. Exercise of powers by Court of First Instance or receiver

(1) The following subsections apply to the powers conferred on the Court of First Instance by sections 7 to 10, or on a receiver appointed under section 7 or 9 or pursuant to a charging order. <* Note - Exp. X-Ref.: Sections 7, 8, 9, 10 *> (Amended 25 of 1998 s. 2)
(2) Subject to subsections (3), (4), (5) and (6), the powers shall be exercised with a view to recovering property which is liable to be recovered under an external confiscation order registered under section 28 of this Ordinance or, as the case may be, with a view to making available for recovery property which may become liable to be recovered under an external confiscation order which may be made.
(3) In the case of realisable property held by a person to whom the defendant has directly or indirectly made a gift caught by this Schedule, the powers shall be exercised with a view to realising no more than the value for the time being of the gift.
(4) In the case of realisable property other than realisable property referred to in section 5(1)(a), the powers shall be exercised with a view to allowing any person other than the defendant or the recipient of any such gift to retain or recover the value of any property held by him.
(5) An order may be made or other action taken in respect of a debt owed by the Government.
(6) In exercising those powers, no account shall be taken of any obligations of the defendant or of the recipient of any such gift which conflict with the obligation to satisfy the external confiscation order.

12. Bankruptcy of defendant, etc.

(1) Where a person who holds realisable property is adjudged bankrupt-

(a) property for the time being subject to a restraint order made before the order adjudging him bankrupt; and

(b) any proceeds of property realised by virtue of section 7(7) or 9(5) or (6) for the time being in the hands of a receiver appointed under section 7 or 9,

are excluded from the property of the bankrupt for the purposes of the Bankruptcy Ordinance (Cap 6).
(2) Where a person has been adjudged bankrupt, the powers conferred on the Court of First Instance by sections 7 to 10 shall not be exercised in relation to- <* Note - Exp. X-Ref.: Sections 7, 8, 9, 10 *> (Amended 25 of 1998 s. 2)

(a) property for the time being comprised in the property of the bankrupt for the purposes of the Bankruptcy Ordinance (Cap 6); and

(b) property which is to be applied for the benefit of creditors of the bankrupt by virtue of a condition imposed under section 30(3) of the Bankruptcy Ordinance (Cap 6).

(3) Nothing in the Bankruptcy Ordinance (Cap 6) shall be taken as restricting, or enabling the restriction of, the exercise of the powers conferred on the Court of First Instance by sections 7 to 10. <* Note - Exp. X-Ref.: Sections 7, 8, 9, 10 *> (Amended 25 of 1998 s. 2)
(4) Subsection (2) does not affect the enforcement of a charging order-

(a) made before the order adjudging the person bankrupt; or

(b) on property which was subject to a restraint order when the order adjudging him bankrupt was made.

(5) Where, in the case of a debtor, an interim receiver stands appointed under section 13 of the Bankruptcy Ordinance (Cap 6) and any property of the debtor is subject to a restraint order, the powers conferred on the interim receiver by virtue of that Ordinance do not apply to property for the time being subject to the restraint order.
(6) Where a person is adjudged bankrupt and had directly or indirectly made a gift caught by this Schedule-

(a) a court shall not make an order under-

(i) section 31, 47 or 49 of the Bankruptcy Ordinance (Cap 6); or

(ii) section 60 of the Conveyancing and Property Ordinance (Cap 219),

in respect of the making of the gift at any time when property of the person to whom the gift was made is subject to a restraint order or charging order; and

(b) any order made under any of those sections after the discharge of the restraint order or charging order shall take into account any realisation under this Schedule of property held by the person to whom the gift was made.

(7) After the relevant day-

(a) subsection (2)(b) shall be read as if "30(3)" were omitted and "30A(9)" were substituted therefor;

(b) subsection (6)(a)(i) shall be read as if "31, 47 or 49" were omitted and "49 or 50" were substituted therefor.

(8) In this section, "relevant day" (有關日期) means the day on which section 87 of the Bankruptcy (Amendment) Ordinance 1996 (76 of 1996) comes into operation.

13. Winding up of company holding realisable property

(1) Where realisable property is held by a company and an order for the winding up of the company has been made or a resolution has been passed by the company for the voluntary winding up, the functions of the liquidator (or any provisional liquidator) shall not be exercisable in relation to-

(a) property for the time being subject to a restraint order made before the relevant time; and

(b) any proceeds of property realised by virtue of section 7(7) or 9(5) or (6) for the time being in the hands of a receiver appointed under section 7 or 9.

(2) Where, in the case of a company, such an order has been made or such a resolution has been passed, the powers conferred on the Court of First Instance by sections 7 to 10 shall not be exercised in relation to any realisable property held by the company in relation to which the functions of the liquidator are exercisable- <* Note - Exp. X-Ref.: Sections 7, 8, 9, 10 *>

(a) so as to inhibit him from exercising those functions for the purpose of distributing any property held by the company to the company's creditors; or

(b) so as to prevent the payment out of any property of expenses (including the remuneration of the liquidator or any provisional liquidator) properly incurred in the winding up in respect of the property.

(3) Nothing in the Companies Ordinance (Cap 32) shall be taken as restricting, or enabling the restriction of, the exercise of the powers conferred on the Court of First Instance by sections 7 to 10. <* Note - Exp. X-Ref.: Sections 7, 8, 9, 10 *>
(4) Subsection (3) shall apply to any proceedings relating to an appeal, further appeal or review against any exercise of the powers referred to in that subsection as if the court hearing the appeal, further appeal or review, as the case may be, were the Court of First Instance.
(5) Subsection (2) does not affect the enforcement of a charging order made before the relevant time or on property which was subject to a restraint order at the relevant time.
(6) In this section-
"company" (公司) means any company which may be wound up under the Companies Ordinance (Cap 32);
"the relevant time" (有關時間) means-

(a) where no order for the winding up of the company has been made, the time of the passing of the resolution for voluntary winding up;

(b) where such an order has been made and, before the presentation of the petition for the winding up of the company by the Court of First Instance, such a resolution had been passed by the company, the time of the passing of the resolution; and

(Amended 25 of 1998 s. 2)

14. Insolvency officers dealing with property subject
to restraint order

(1) Without prejudice to the generality of any provision contained in the Bankruptcy Ordinance (Cap 6), the Companies Ordinance (Cap 32) or any other Ordinance, where-

(a) any insolvency officer seizes or disposes of any property in relation to which his functions are not exercisable because it is for the time being subject to a restraint order; and

(b) at the time of the seizure or disposal he believes, and has reasonable grounds for believing, that he is entitled (whether in pursuance of an order of a court or otherwise) to seize or dispose of that property,

he shall not be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as the loss or damage is caused by his negligence; and the insolvency officer shall have a lien on the property, or the proceeds of its sale, for such of his expenses as were incurred in connection with the liquidation, bankruptcy or other proceedings in relation to which the seizure or disposal purported to take place and for so much of his remuneration as may reasonably be assigned for his acting in connection with those proceedings.
(2) Any insolvency officer who incurs expenses-

(a) in respect of such property as is mentioned in subsection (1)(a) and in so doing does not know and has no reasonable grounds to believe that the property is for the time being subject to a restraint order; or

(b) other than in respect of such property as is so mentioned, being expenses which, but for the effect of a restraint order, might have been met by taking possession of and realising the property,

shall be entitled (whether or not he has seized or disposed of that property so as to have a lien under that subsection) to payment of those expenses under section 10(1).
(3) In this section "insolvency officer" (債務處理人) means-

(a) the Official Receiver; or

(b) any person acting as-

(i) a receiver, interim receiver, special manager or trustee appointed under the Bankruptcy Ordinance (Cap 6); or

(ii) a liquidator, provisional liquidator or special manager appointed under the Companies Ordinance (Cap 32).

15. Receivers: supplementary provisions

(1) Where a receiver appointed under section 7 or 9 or pursuant to a charging order takes any action-

(a) in relation to property which is not realisable property, being action which he would be entitled to take if it were such property;

(b) believing, and having reasonable grounds for believing, that he is entitled to take that action in relation to that property,

he shall not be liable to any person in respect of any loss or damage resulting from his action except in so far as the loss or damage is caused by his negligence.
(2) Any amount due in respect of the remuneration and expenses of a receiver so appointed shall, if no sum is available to be applied in payment of it under section 10(4), be paid by the person on whose application the receiver was appointed.

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