BANKRUPTCY ORDINANCE - CHAPTER 6 BANKRUPTCY ORDINANCE - LONG TITLE Long title VerDate:30/06/1997 BANKRUPTCY ORDINANCE* To amend the law relating to bankruptcy. [1 January 1932] (Originally 10 of 1931 (Cap 6, 1950 Ed.)) ___________________________________________________________________________ _______ Note: *This Ordinance was amended by the Bankruptcy (Amendment) Ordinance 2005 (18 of 2005). The transitional and savings provisions contained in s. 49 of that Amendment Ordinance are reproduced as follows: "49. Transitional and savings provisions (1) Notwithstanding anything contained in this Ordinance, the amendments effected under this Ordinance (except sections 12, 19 and 32) shall not apply to any case in which the bankruptcy petition was presented before the commencement date, and such case shall continue and be disposed of as if this Ordinance had not been enacted. (2) This section is in addition to and not in derogation of section 23 of the Interpretation and General Clauses Ordinance (Cap 1). (3) For the purpose of this section, #“commencement date” (生效日期) means the day appointed by the Secretary for Financial Services and the Treasury under section 1(2) of this Ordinance.". # Commencement date: 10 December 2007. BANKRUPTCY ORDINANCE - SECT 1 Short title VerDate:30/06/1997 PART I SHORT TITLE AND INTERPRETATION This Ordinance may be cited as the Bankruptcy Ordinance. BANKRUPTCY ORDINANCE - SECT 2 Interpretation VerDate:10/12/2007 In this Ordinance, unless the context otherwise requires- "affidavit" (誓章) includes statutory declaration, affirmation and attestation on honour; "bailiff" (執達主任) includes any officer charged with the execution of a writ or other process; "bankruptcy debt" (破產債項), in relation to a bankrupt, means- (a) any debt or liability to which he is subject at the commencement of the bankruptcy; and (b) any debt or liability to which he may become subject after the commencement of the bankruptcy (including after his discharge from bankruptcy) by reason of any obligation incurred before the commencement of the bankruptcy; (Added 76 of 1996 s. 2) "court" (法院、法庭) means the Court of First Instance sitting in its bankruptcy jurisdiction; (Amended 92 of 1975 s. 59; 25 of 1998 s. 2) "debt provable in bankruptcy" (破產案中可證債權、破產案中可證債項) or "provable debt" (可證債權、 可證債項) includes any debt or liability by this Ordinance made provable in bankruptcy; "goods" (貨品) includes all chattels personal; "nominee" (代名人) means the Official Receiver or some person who by reason of his experience and qualifications is, in the opinion of the court, a suitable person to perform the duties of the nominee specified in sections 20A, 20D, 20E and 20G; (Added 76 of 1996 s. 2) "oath" (誓言) includes affirmation, declaration and attestation on honour; "Official Receiver" (破產管理署署長) means the Official Receiver appointed under section 75; (Added 47 of 1984 s. 2) "ordinary resolution" (普通決議) means a resolution decided by a majority in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution; "prescribed" (訂明) means prescribed by general rules within the meaning of this Ordinance; "property" (財產) includes money, goods, things in action, land and every description of property, whether real or personal and whether situate in Hong Kong or elsewhere, also obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as above defined; (Amended 47 of 1984 s. 16) "proposal" (建議) means a proposal for a voluntary arrangement made to his creditors by a debtor; (Added 76 of 1996 s. 2) "provisional trustee" (暫行受託人), in relation to a bankrupt, means- (a) where no person is appointed as provisional trustee of the property of the bankrupt under section 12(1A), the Official Receiver; or (b) where any person is appointed as provisional trustee of the property of the bankrupt under section 12(1A), the person; (Added 18 of 2005 s. 2) "Registrar" (司法常務官) means the Registrar of the High Court, and any Senior Deputy Registrar, Deputy Registrar or Assistant Registrar of the High Court; (Replaced 47 of 1984 s. 2. Amended 25 of 1998 s. 2; 10 of 2005 s. 167) "resolution" (決議) means ordinary resolution; "secured creditor" (有抵押債權人) means a person holding a mortgage, charge or lien on the property of the debtor or any part thereof, as a security for a debt due to him from the debtor; "special resolution" (特別決議) means a resolution decided by a majority in number and three-fourths in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution; "trustee" (受託人) means, subject to section 58(1B), the trustee in bankruptcy of a bankrupt's estate; (Amended 76 of 1996 s. 72; 18 of 2005 s. 2) "voluntary arrangement" (自願安排) means a composition in satisfaction of a debtor's debts or a scheme of arrangement of a debtor's affairs. (Added 76 of 1996 s. 2) (Amended 76 of 1996 s. 2) [cf. 1914 c. 59 s. 167 U.K.] "affidavit" (誓章) "bailiff" (執達主任) "bankruptcy debt" (破產債項) "court" (法院、法庭) "debt provable in bankruptcy" (破產案中可證債權、破產案中可證債項) or "provable debt" (可證債權、 可證債項) "goods" (貨品) "nominee" (代名人) "oath" (誓言) "Official Receiver" (破產管理署署長) "ordinary resolution" (普通決議) "prescribed" (訂明) "property" (財產) "proposal" (建議) "provisional trustee" (暫行受託人) "Registrar" (司法常務官) "resolution" (決議) "secured creditor" (有抵押債權人) "special resolution" (特別決議) "trustee" (受託人) "voluntary arrangement" (自願安排) BANKRUPTCY ORDINANCE - SECT 2 Interpretation VerDate:08/07/2005 In this Ordinance, unless the context otherwise requires- "affidavit" (誓章) includes statutory declaration, affirmation and attestation on honour; "bailiff" (執達主任) includes any officer charged with the execution of a writ or other process; "bankruptcy debt" (破產債項), in relation to a bankrupt, means- (a) any debt or liability to which he is subject at the commencement of the bankruptcy; and (b) any debt or liability to which he may become subject after the commencement of the bankruptcy (including after his discharge from bankruptcy) by reason of any obligation incurred before the commencement of the bankruptcy; (Added 76 of 1996 s. 2) "court" (法院、法庭) means the Court of First Instance sitting in its bankruptcy jurisdiction; (Amended 92 of 1975 s. 59; 25 of 1998 s. 2) "debt provable in bankruptcy" (破產案中可證債權、破產案中可證債項) or "provable debt" (可證債權、 可證債項) includes any debt or liability by this Ordinance made provable in bankruptcy; "goods" (貨品) includes all chattels personal; "nominee" (代名人) means the Official Receiver or some person who by reason of his experience and qualifications is, in the opinion of the court, a suitable person to perform the duties of the nominee specified in sections 20A, 20D, 20E and 20G; (Added 76 of 1996 s. 2) "oath" (誓言) includes affirmation, declaration and attestation on honour; "Official Receiver" (破產管理署署長) means the Official Receiver appointed under section 75; (Added 47 of 1984 s. 2) "ordinary resolution" (普通決議) means a resolution decided by a majority in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution; "prescribed" (訂明) means prescribed by general rules within the meaning of this Ordinance; "property" (財產) includes money, goods, things in action, land and every description of property, whether real or personal and whether situate in Hong Kong or elsewhere, also obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as above defined; (Amended 47 of 1984 s. 16) "proposal" (建議) means a proposal for a voluntary arrangement made to his creditors by a debtor; (Added 76 of 1996 s. 2) "Registrar" (司法常務官) means the Registrar of the High Court, and any Senior Deputy Registrar, Deputy Registrar or Assistant Registrar of the High Court; (Replaced 47 of 1984 s. 2. Amended 25 of 1998 s. 2; 10 of 2005 s. 167) "resolution" (決議) means ordinary resolution; "secured creditor" (有抵押債權人) means a person holding a mortgage, charge or lien on the property of the debtor or any part thereof, as a security for a debt due to him from the debtor; "special resolution" (特別決議) means a resolution decided by a majority in number and three-fourths in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution; "trustee" (受託人) means the trustee in bankruptcy of a bankrupt's estate. (Amended 76 of 1996 s. 72) "voluntary arrangement" (自願安排) means a composition in satisfaction of a debtor's debts or a scheme of arrangement of a debtor's affairs. (Added 76 of 1996 s. 2) (Amended 76 of 1996 s. 2) [cf. 1914 c. 59 s. 167 U.K.] "affidavit" (誓章) "bailiff" (執達主任) "bankruptcy debt" (破產債項) "court" (法院、法庭) "debt provable in bankruptcy" (破產案中可證債權、破產案中可證債項) or "provable debt" (可證債權、 可證債項) "goods" (貨品) "nominee" (代名人) "oath" (誓言) "Official Receiver" (破產管理署署長) "ordinary resolution" (普通決議) "prescribed" (訂明) "property" (財產) "proposal" (建議) "Registrar" (司法常務官) "resolution" (決議) "secured creditor" (有抵押債權人) "special resolution" (特別決議) "trustee" (受託人) "voluntary arrangement" (自願安排) BANKRUPTCY ORDINANCE - SECT 2 Interpretation VerDate:01/04/1998 Adaptation amendments retroactively made - see 25 of 1998 s. 2 In this Ordinance, unless the context otherwise requires- "affidavit" (誓章) includes statutory declaration, affirmation and attestation on honour; "bailiff" (執達主任) includes any officer charged with the execution of a writ or other process; "bankruptcy debt" (破產債項), in relation to a bankrupt, means- (a) any debt or liability to which he is subject at the commencement of the bankruptcy; and (b) any debt or liability to which he may become subject after the commencement of the bankruptcy (including after his discharge from bankruptcy) by reason of any obligation incurred before the commencement of the bankruptcy; (Added 76 of 1996 s. 2) "court" (法院、法庭) means the Court of First Instance sitting in its bankruptcy jurisdiction; (Amended 92 of 1975 s. 59; 25 of 1998 s. 2) "debt provable in bankruptcy" (破產案中可證債權、破產案中可證債項) or "provable debt" (可證債權、 可證債項) includes any debt or liability by this Ordinance made provable in bankruptcy; "goods" (貨品) includes all chattels personal; "nominee" (代名人) means the Official Receiver or some person who by reason of his experience and qualifications is, in the opinion of the court, a suitable person to perform the duties of the nominee specified in sections 20A, 20D, 20E and 20G; (Added 76 of 1996 s. 2) "oath" (誓言) includes affirmation, declaration and attestation on honour; "Official Receiver" (破產管理署署長) means the Official Receiver appointed under section 75; (Added 47 of 1984 s. 2) "ordinary resolution" (普通決議) means a resolution decided by a majority in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution; "prescribed" (訂明) means prescribed by general rules within the meaning of this Ordinance; "property" (財產) includes money, goods, things in action, land and every description of property, whether real or personal and whether situate in Hong Kong or elsewhere, also obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as above defined; (Amended 47 of 1984 s. 16) "proposal" (建議) means a proposal for a voluntary arrangement made to his creditors by a debtor; (Added 76 of 1996 s. 2) "Registrar" (司法常務官) means the Registrar of the High Court, and any Deputy or Assistant Registrar of the High Court; (Replaced 47 of 1984 s. 2. Amended 25 of 1998 s. 2) "resolution" (決議) means ordinary resolution; "secured creditor" (有抵押債權人) means a person holding a mortgage, charge or lien on the property of the debtor or any part thereof, as a security for a debt due to him from the debtor; "special resolution" (特別決議) means a resolution decided by a majority in number and three-fourths in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution; "trustee" (受託人) means the trustee in bankruptcy of a bankrupt's estate. (Amended 76 of 1996 s. 72) "voluntary arrangement" (自願安排) means a composition in satisfaction of a debtor's debts or a scheme of arrangement of a debtor's affairs. (Added 76 of 1996 s. 2) (Amended 76 of 1996 s. 2) [cf. 1914 c. 59 s. 167 U.K.] "affidavit" (誓章) "bailiff" (執達主任) "bankruptcy debt" (破產債項) "court" (法院、法庭) "debt provable in bankruptcy" (破產案中可證債權、破產案中可證債項) or "provable debt" (可證債權、 可證債項) "goods" (貨品) "nominee" (代名人) "oath" (誓言) "Official Receiver" (破產管理署署長) "ordinary resolution" (普通決議) "prescribed" (訂明) "property" (財產) "proposal" (建議) "Registrar" (司法常務官) "resolution" (決議) "secured creditor" (有抵押債權人) "special resolution" (特別決議) "trustee" (受託人) "voluntary arrangement" (自願安排) BANKRUPTCY ORDINANCE - SECT 2 Interpretation VerDate:01/07/1997 Adaptation amendments retroactively made - see 25 of 1998 s. 2 In this Ordinance, unless the context other wise requires- "affidavit" (誓章) includes statutory declaration, affirmation and attestation on honour; "available act of bankruptcy" (可用的破產作為) means any act of bankruptcy available for a bankruptcy petition at the date of the presentation of the petition on which the receiving order is made; "bailiff" (執達主任) includes any officer charged with the execution of a writ or other process; "court" (法院、法庭) means the Court of First Instance sitting in its bankruptcy jurisdiction; (Amended 92 of 1975 s. 59; 25 of 1998 s. 2) "debt provable in bankruptcy" (破產案中可證債權、破產案中可證債項) or "provable debt" (可證債 權、可證債項) includes any debt or liability by this Ordinance made provable in bankruptcy; "goods" (貨品) includes all chattels personal; "oath" (誓言) includes affirmation, declaration and attestation on honour; "Official Receiver" (破產管理署署長) means the Official Receiver appointed under section 75; (Added 47 of 1984 s. 2) "ordinary resolution" (普通決議) means a resolution decided by a majority in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution; "prescribed" (訂明) means prescribed by general rules within the meaning of this Ordinance; "property" (財產) includes money, goods, things in action, land and every description of property, whether real or personal and whether situate in Hong Kong or elsewhere, also obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as above defined; (Amended 47 of 1984 s. 16) "Registrar" (司法常務官) means the Registrar of the High Court, and any Deputy or Assistant Registrar of the High Court; (Replaced 47 of 1984 s. 2. Amended 25 of 1998 s. 2) "resolution" (決議) means ordinary resolution; "secured creditor" (有抵押債權人) means a person holding a mortgage, charge or lien on the property of the debtor or any part thereof, as a security for a debt due to him from the debtor; "special resolution" (特別決議) means a resolution decided by a majority in number and three-fourths in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution; "trustee" (受託人) means the trustee in bankruptcy of a debtor's estate. [cf. 1914 c. 59 s. 167 U.K.] "affidavit" (誓章) "available act of bankruptcy" (可用的破產作為) "bailiff" (執達主任) "court" (法院、法庭) "debt provable in bankruptcy" (破產案中可證債權、破產案中可證債項) or "provable debt" (可證債權、 可證債項) "goods" (貨品) "oath" (誓言) "Official Receiver" (破產管理署署長) "ordinary resolution" (普通決議) "prescribed" (訂明) "property" (財產) "Registrar" (司法常務官) "resolution" (決議) "secured creditor" (有抵押債權人) "special resolution" (特別決議) "trustee" (受託人) BANKRUPTCY ORDINANCE - SECT 2 Interpretation VerDate:30/06/1997 In this Ordinance, unless the context other wise requires- "affidavit" (誓章) includes statutory declaration, affirmation and attestation on honour; "available act of bankruptcy" (可用的破產作為) means any act of bankruptcy available for a bankruptcy petition at the date of the presentation of the petition on which the receiving order is made; "bailiff" (執達主任) includes any officer charged with the execution of a writ or other process; "court" (法院、法庭) means the High Court sitting in its bankruptcy jurisdiction; (Amended 92 of 1975 s.59) "debt provable in bankruptcy" (破產案中可證債權、破產案中可證債項) or "provable debt" (可證債權、 可證債項) includes any debt or liability by this Ordinance made provable in bankruptcy; "goods" (貨品) includes all chattels personal; "oath" (誓言) includes affirmation, declaration and attestation on honour; "Official Receiver" (破產管理署署長) means the Official Receiver appointed under section 75; (Added 47 of 1984 s. 2) "ordinary resolution" (普通決議) means a resolution decided by a majority in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution; "prescribed" (訂明) means prescribed by general rules within the meaning of this Ordinance; "property" (財產) includes money, goods, things in action, land and every description of property, whether real or personal and whether situate in Hong Kong or elsewhere, also obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as above defined; (Amended 47 of 1984 s. 16) "Registrar" (司法常務官) means the Registrar of the Supreme Court, and any Deputy or Assistant Registrar of the Supreme Court; (Replaced 47 of 1984 s. 2) "resolution" (決議) means ordinary resolution; "secured creditor" (有抵押債權人) means a person holding a mortgage, charge or lien on the property of the debtor or any part thereof, as a security for a debt due to him from the debtor; "special resolution" (特別決議) means a resolution decided by a majority in number and three-fourths in value of the creditors present, personally or by proxy, at a meeting of creditors and voting on the resolution; "trustee" (受託人) means the trustee in bankruptcy of a debtor's estate. [cf. 1914 c. 59 s. 167 U.K.] "affidavit" (誓章) "available act of bankruptcy" (可用的破產作為) "bailiff" (執達主任) "court" (法院、法庭) "debt provable in bankruptcy" (破產案中可證債權、破產案中可證債項) or "provable debt" (可證債權、 可證債項) "goods" (貨品) "oath" (誓言) "Official Receiver" (破產管理署署長) "ordinary resolution" (普通決議) "prescribed" (訂明) "property" (財產) "Registrar" (司法常務官) "resolution" (決議) "secured creditor" (有抵押債權人) "special resolution" (特別決議) "trustee" (受託人) BANKRUPTCY ORDINANCE - SECT 3 Who may present a bankruptcy petition VerDate:01/04/1998 PART II PROCEEDINGS FROM BANKRUPTCY PETITION TO DISCHARGE (Replaced 76 of 1996 s. 3) (1) A petition for a bankruptcy order to be made against a debtor may be presented to the court- (a) by one of the debtor's creditors or jointly by more than one of them; (b) by the debtor himself; (c) by the nominee of, or any person (other than the debtor) who is for the time being bound by, a voluntary arrangement proposed by the debtor and approved by his creditors; or (d) where a criminal bankruptcy order has been made against the debtor, by the Official Petitioner. (2) Subject to the following provisions of this Part, the court may make a bankruptcy order on any such petition. (Replaced 76 of 1996 s. 4) BANKRUPTCY ORDINANCE - SECT 3 Acts of bankruptcy VerDate:30/06/1997 PART II PROCEEDINGS FROM ACT OF BANKRUPTCY TO DISCHARGE (1) A debtor commits an act of bankruptcy in each of the following cases- (a) if in Hong Kong or elsewhere he makes a conveyance or assignment of his property to a trustee or trustees for the benefit of his creditors generally; (b) if in Hong Kong or elsewhere he makes a fraudulent conveyance, gift, delivery or transfer of his property or of any part thereof; (c) if in Hong Kong or elsewhere he makes any conveyance or transfer of his property or any part thereof, or creates any charge thereon, which would be void as a fraudulent preference if he were adjudged bankrupt; (d) if with intent to defeat or delay his creditors he does any of the following things, namely, departs out of Hong Kong, or being out of Hong Kong remains out of Hong Kong, or departs from his dwelling-house or usual place of business, or otherwise absents himself, or begins to keep house, or removes his property or any part thereof beyond the jurisdiction of the court; (e) if execution against him has been levied by seizure of his goods under process in an action, or proceeding in the court, and the goods have been either sold or held by the bailiff for 21 days: Provided that, where an interpleader summons has been taken out in regard to the goods seized, the time elapsing between the date at which such summons is taken out and the date at which the proceedings on such summons are finally disposed of, settled or abandoned shall not be taken into account in calculating such period of 21 days; (f) if he files in the court a declaration of his inability to pay his debts or presents a bankruptcy petition against himself; (See Form 2) (g) if a creditor has obtained a final judgment or final order against him for any amount, and execution thereon not having been stayed, has served on him in Hong Kong or, by leave of the court, elsewhere, a bankruptcy notice under this Ordinance, and he does not, within 7 days after service of the notice, in case the service is effected in Hong Kong, and in case the service is effected elsewhere, then within the time limited in that behalf by the order giving leave to effect the service, either comply with the requirements of the notice or satisfy the court that he has a counter-claim set off or cross demand which equals or exceeds the amount of the judgment debt or sum ordered to be paid, and which he could not set up in the action in which the judgment was obtained or the proceedings in which the order was obtained: For the purposes of this paragraph and of section 4, any person who is for the time being entitled to enforce a final judgement or final order shall be deemed to be a creditor who has obtained a final judgment or final order; (h) if the debtor gives notice to any of his creditors that he has suspended or that he is about to suspend payment of his debts. (2) In this Ordinance, "a debtor" (債務人), unless the context otherwise requires, includes any person, whether a British subject or not, who at the time when any act of bankruptcy was done or suffered by him- (a) was personally present in Hong Kong; or (b) ordinarily resided or had a place of residence in Hong Kong; or (c) was carrying on business in Hong Kong, personally or by means of an agent or manager; or (d) was a member of a firm or partnership which carried on business in Hong Kong. (Amended 47 of 1984 s. 16) [cf. 1914 c. 59 s. 1 U.K.] "a debtor" (債務人) BANKRUPTCY ORDINANCE - SECT 4 Conditions to be satisfied in respect of debtor VerDate:01/04/1998 (1) A bankruptcy petition shall not be presented to the court under section 3(1)(a) or (b) unless the debtor- (a) is domiciled in Hong Kong; (b) is personally present in Hong Kong on the day on which the petition is presented; or (c) at any time in the period of 3 years ending with that day- (i) has been ordinarily resident, or has had a place of residence, in Hong Kong; or (ii) has carried on business in Hong Kong. (2) The reference in subsection (1)(c) to a debtor carrying on business includes- (a) the carrying on of business by a firm or partnership of which the debtor is a member; and (b) the carrying on of business by an agent or manager for the debtor or for such a firm or partnership. (Replaced 76 of 1996 s. 4) BANKRUPTCY ORDINANCE - SECT 4 Bankruptcy notices VerDate:30/06/1997 A bankruptcy notice under this Ordinance shall be issued to a judgement creditor, or creditor who has obtained a final order, by the Registrar on the filing of a request for that purpose, and shall be in the prescribed form, and shall require the debtor to pay the judgment debt or sum ordered to be paid in accordance with the terms of the judgment or order, or to secure or compound for it to the satisfaction of the creditor or the court, and shall state the consequences of non-compliance with the notice, and shall be served in the prescribed manner: (See Forms 4, 5) Provided that a bankruptcy notice- (a) may specify an agent to act on behalf of the creditor in respect of any payment or other thing required by the notice to be made to, or done to the satisfaction of, the creditor; (b) shall not be invalidated by reason only that the sum specified in the notice as the amount due exceeds the amount actually due, unless the debtor within the time allowed for payment gives notice to the creditor that he disputes the validity of the notice on the ground of such misstatement; but if the debtor does not give such notice, he shall be deemed to have complied with the bankruptcy notice if within the time allowed he takes such steps as would have constituted a compliance with the notice had the actual amount due been correctly specified therein. [cf. 1914 s. 59 s. 2 U.K.] BANKRUPTCY ORDINANCE - SECT 5 Other preliminary conditions VerDate:01/04/1998 (1) Where a bankruptcy petition relating to a debtor is presented by a person who is entitled to present a petition under 2 or more paragraphs of section 3(1), the petition is to be treated for the purposes of this Part as a petition under whichever of those paragraphs is specified in the petition. (2) A bankruptcy petition shall not be withdrawn without the leave of the court. (3) The court has a general power, if it appears to it appropriate to do so on the grounds that there has been a contravention of rules or for any other reason, to dismiss a bankruptcy petition or to stay such a petition and, where it stays such a petition, it may do so on such terms and conditions as it thinks fit. (4) Without prejudice to subsection (3), where a petition under section 3(1)(a), (b) or (c) in respect of a debtor is pending at a time when a criminal bankruptcy order is made against him, or is presented after such an order has been so made, the court may on the application of the Official Receiver dismiss the petition if it appears to it appropriate to do so. (Replaced 76 of 1996 s. 4) BANKRUPTCY ORDINANCE - SECT 5 Jurisdiction to make receiving order VerDate:30/06/1997 Receiving order and Official Receiver Subject to the conditions hereinafter specified, if a debtor commits an act of bankruptcy the court may, on a bankruptcy petition being presented either by a creditor or by the debtor, make an order, in this Ordinance called a receiving order, for the protection of the estate. (See Forms 25, 26) [cf. 1914 c.59 s.3 U.K.] BANKRUPTCY ORDINANCE - SECT 6 Grounds of creditor's petition VerDate:01/04/1998 (1) A creditor's petition must be in respect of one or more debts owed by the debtor, and the petitioning creditor or each of the petitioning creditors must be a person to whom the debt or (as the case may be) at least one of the debts is owed. (2) Subject to sections 6A to 6C, a creditor's petition may be presented to the court in respect of a debt or debts if, but only if, at the time the petition is presented- <* Note - Exp. X-Ref.: Sections 6A, 6B, 6C *> (a) the amount of the debt, or the aggregate amount of the debts, is equal to or exceeds $10000 or a prescribed amount; (b) the debt, or each of the debts, is for a liquidated sum payable to the petitioning creditor, or one or more of the petitioning creditors, either immediately or at some certain, future time, and is unsecured; (c) the debt, or each of the debts, is a debt which the debtor appears either to be unable to pay or to have no reasonable prospect of being able to pay; and (d) there is no outstanding application to set aside a statutory demand served under section 6A in respect of the debt or any of the debts. (3) A debt is not to be regarded for the purposes of subsection (2) as a debt for a liquidated sum by reason only that the amount of the debt is specified in a criminal bankruptcy order. (4) Notwithstanding subsection (2)(c) and (d), a creditor's petition may be presented if there are reasonable grounds for believing that the debtor intends to depart, or has departed, from Hong Kong and the debtor knows or ought reasonably to know that his departure would result in defeat or delay for his creditors, and this subsection applies irrespective of the reason for his departure. (5) The Financial Secretary may, by regulation, prescribe an amount greater than $10000 for the purposes of subsection (2)(a). (Replaced 76 of 1996 s. 4) BANKRUPTCY ORDINANCE - SECT 6 Conditions on which creditor may petition VerDate:30/06/1997 (1) Subject to the provisions of section 7, a creditor shall not be entitled to present a bankruptcy petition against a debtor unless- (See Form 10) (a) the debt owing by the debtor to the petitioning creditor, or if 2 or more creditors join in the petition, the aggregate amount of debts owing to the several petitioning creditors, amounts to more than $5000; and (Amended 65 of 1976 s. 2) (b) the debt is a liquidated sum, payable either immediately or at some certain future time; and (c) the act of bankruptcy on which the petition is grounded has occurred within 3 months before the presentation of the petition; and (d) the debtor is domiciled in Hong Kong, or within a year before the date of the presentation of the petition has ordinarily resided, or had a dwelling-house or place of business, in Hong Kong, or has carried on business in Hong Kong, personally or by means of an agent or manager, or is or within the said period has been a member of a firm or partnership of persons which has carried on business in Hong Kong by means of a partner or partners or an agent or manager. (Amended 47 of 1984 s.16) (2) If the petitioning creditor is a secured creditor, he must in his petition either state that he is willing to give up his security for the benefit of the creditors in the event of the debtor being adjudged bankrupt, or give an estimate of the value of his security. In the latter case he may be admitted as a petitioning creditor to the extent of the balance of the debt due to him after deducting the value so estimated in the same manner as if he were an unsecured creditor. [cf. 1914 c.59 s.4 U.K.] BANKRUPTCY ORDINANCE - SECT 6A Definition of "inability to pay", etc.; the statutory demand VerDate:01/04/1998 (1) For the purposes of section 6(2)(c), the debtor appears to be unable to pay a debt if, but only if, the debt is payable immediately and either- (a) the petitioning creditor to whom the debt is owed has served on the debtor a demand (known as "the statutory demand") in the prescribed form requiring him to pay the debt or to secure or compound for it to the satisfaction of the creditor, at least 3 weeks have elapsed since the demand was served and the demand has been neither complied with nor set aside in accordance with the rules; or (b) execution or other process issued in respect of the debt on a judgment or order of any court in favour of the petitioning creditor, or one or more of the petitioning creditors to whom the debt is owed, has been returned unsatisfied in whole or in part. (2) For the purposes of section 6(2)(c) the debtor appears to have no reasonable prospect of being able to pay a debt if, but only if, the debt is not immediately payable and- (a) the petitioning creditor to whom it is owed has served on the debtor a demand (also known as "the statutory demand") in the prescribed form requiring him to establish to the satisfaction of the creditor that there is a reasonable prospect that the debtor will be able to pay the debt when it falls due; (b) at least 3 weeks have elapsed since the demand was served; and (c) the demand has been neither complied with nor set aside in accordance with the rules. (Added 76 of 1996 s. 4) BANKRUPTCY ORDINANCE - SECT 6B Creditor with security VerDate:01/04/1998 (1) A debt which is the debt, or one of the debts, in respect of which a creditor's petition is presented need not be unsecured if either- (a) the petition contains a statement by the person having the right to enforce the security that he is willing, in the event of a bankruptcy order being made, to give up his security for the benefit of all the bankrupt's creditors; or (b) the petition is expressed not to be made in respect of the secured part of the debt and contains a statement by that person of the estimated value at the date of the petition of the security for the secured part of the debt. (2) In a case falling within subsection (1)(b) the secured and unsecured parts of the debt are to be treated for the purposes of sections 6 to 6C as separate debts. <* Note - Exp. X-Ref.: Sections 6, 6A, 6B, 6C *> (Added 76 of 1996 s. 4) BANKRUPTCY ORDINANCE - SECT 6C Expedited petition VerDate:01/04/1998 In the case of a creditor's petition presented wholly or partly in respect of a debt which is the subject of a statutory demand under section 6A, the petition may be presented before the end of the 3-week period there mentioned if there is a serious possibility that the debtor's property or the value of any of his property will be significantly diminished during that period and the petition contains a statement to that effect. (Added 76 of 1996 s. 4) BANKRUPTCY ORDINANCE - SECT 6D Proceedings on creditor's petition VerDate:01/04/1998 (1) The court shall not make a bankruptcy order on a creditor's petition unless it is satisfied that the debt, or one of the debts, in respect of which the petition was presented is either- (a) a debt which, having been payable at the date of the petition or having since become payable, has been neither paid nor secured nor compounded for; or (b) a debt which the debtor has no reasonable prospect of being able to pay when it falls due. (2) In a case in which the petition contains such a statement as is required by section 6C, the court shall not make a bankruptcy order until at least 3 weeks have elapsed since the service of any statutory demand under section 6A. (3) The court may dismiss the petition if it is satisfied that the debtor is able to pay all his debts or is satisfied- (a) that the debtor has made an offer to secure or compound for a debt in respect of which the petition is presented; (b) that the acceptance of that offer would have required the dismissal of the petition; and (c) that the offer has been unreasonably refused, and, in determining for the purposes of this subsection whether the debtor is able to pay all his debts, the court shall take into account his contingent and prospective liabilities. (4) In determining for the purposes of this section what constitutes a reasonable prospect that a debtor will be able to pay a debt when it falls due, it is to be assumed that the prospect given by the facts and other matters known to the creditor at the time he entered into the transaction resulting in the debt was a reasonable prospect. (5) Nothing in sections 6 to 6C or this section prejudices the power of the court, in accordance with the rules, to authorize a creditor's petition to be amended by the omission of any creditor or debt and to be proceeded with as if things done for the purposes of those sections had been done only by or in relation to the remaining creditors or debts. <* Note - Exp. X-Ref.: Sections 6, 6A, 6B, 6C *> (Added 76 of 1996 s. 4) BANKRUPTCY ORDINANCE - SECT 7 Liability of firm to have bankruptcy order made against it VerDate:01/04/1998 (1) The following provisions shall have effect in the case of a firm carrying on business in Hong Kong- (a) (Repealed 76 of 1996 s. 5) (b) it shall be sufficient that a bankruptcy order against the firm be made in the firm name, without mentioning the names of the partners, and such bankruptcy order shall affect the joint and separate property of all the partners; (Amended 76 of 1996 s. 5) (c) the right of a creditor to present a bankruptcy petition against the firm, and the jurisdiction of the court to make a bankruptcy order against the firm, shall not be affected by the fact, if it is so, that all or any of the partners of the firm are not resident or domiciled in Hong Kong. (Amended 76 of 1996 s. 5) (2) The provisions of this section shall, so far as the nature of the case will permit, apply to any person carrying on business in Hong Kong in a name or style other than his own name. (3) A creditor may present a petition for a bankruptcy order against a firm in the same way as he may present such a petition against a debtor provided that the conditions set out in sections 4(1)(c)(ii), 5, 6, 6A and 6B are met in respect of the firm. (Added 76 of 1996 s. 5) (Amended 47 of 1984 s. 16) BANKRUPTCY ORDINANCE - SECT 7 Liability of firm to have receiving order made against it VerDate:30/06/1997 (1) The following provisions shall have effect in the case of a firm carrying on business in Hong Kong- (a) a creditor of the firm shall be entitled to present a bankruptcy petition against the firm, and a receiving order may be made against the firm in respect of an act of bankruptcy committed in reference to the business of the firm by any partner of the firm or by any person having the control or management of the business of the firm. An act of bankruptcy shall be deemed to be committed in reference to the business of the firm in all cases in which the act relates to the property or creditors of the firm and would be an act of bankruptcy by such partner or person as aforesaid if it related to his property or creditors; (b) it shall be sufficient that a receiving order against the firm be made in the firm name, without mentioning the names of the partners, and such receiving order shall affect the joint and separate property of all the partners; (c) the right of a creditor to present a bankruptcy petition against the firm, and the jurisdiction of the court to make a receiving order or an adjudication of bankruptcy against the firm, shall not be affected by the fact, if it is so, that all or any of the partners of the firm are not British subjects or are not resident or domiciled in Hong Kong. (2) The provisions of this section shall, so far as the nature of the case will permit, apply to any person carrying on business in Hong Kong in a name or style other than his own name. (Amended 47 of 1984 s.16) BANKRUPTCY ORDINANCE - SECT 8 Powers of Official Receiver and duties of debtor on petition being filed VerDate:30/06/1997 (1) Immediately on the filing of any petition the Official Receiver may, in cases where he has reason to believe that any offence under this Ordinance or any fraud has been or is about to be perpetrated, by notice sent by messenger or by ordinary post, summon the debtor to attend before him to give such information as he requires, and may, either by himself or his agent authorized by him in writing, enter on any premises occupied by the debtor between the hours of 8 a.m. and 6 p.m. for the purpose of inspecting his property, stock in trade and books of account. (2) It shall be the duty of the debtor to furnish the Official Receiver with all such information as it is in the debtor's power to give or to obtain. (3) If the debtor fails without reasonable cause to attend on the Official Receiver as aforesaid or to furnish him with such information as aforesaid, or if the debtor obstructs the search of the premises or the production of any book or document required in connection therewith, or authorizes or permits any such obstruction, the debtor shall be liable on summary conviction to imprisonment for any term not exceeding 6 months, and every person who takes any part in any such obstruction, whether authorized or permitted by the debtor or not, shall be liable to the like penalty. BANKRUPTCY ORDINANCE - SECT 9 Creditor's petition and order thereon VerDate:01/04/1998 (1) A creditor's petition shall be verified by affidavit of the creditor or of some person on his behalf having knowledge of the facts, and shall be served in the prescribed manner. (Amended 39 of 1987 s. 2) (2) At the hearing the court shall require proof of the debt of the petitioning creditor and of the service of the petition, and, if satisfied with the proof, may make a bankruptcy order in pursuance of the petition. (Amended 76 of 1996 s. 6) (3) If the court is not satisfied with the proof of the petitioning creditor's debt or of the service of the petition, or is satisfied by the debtor that he is able to pay his debts or has a reasonable prospect of being able to pay them, or considers that for other sufficient cause no order ought to be made, the court may dismiss the petition. (Amended 45 of 1986 s.2; 76 of 1996 s. 6) (4) (Repealed 76 of 1996 s. 6) (5) Where the debtor appears on the petition and denies that he is indebted to the petitioner, or that he is indebted to such an amount as would justify the petitioner in presenting a petition against him, the court, on such security (if any) being given as the court may require for payment to the petitioner of any debt which may be established against him in due course of law, and of the costs of establishing the debt, may, instead of dismissing the petition, stay all proceedings on the petition for such time as may be required for trial of the question relating to the debt. (6) Where proceedings are stayed the court may, if by reason of the delay caused by the stay of proceedings or for any other cause it thinks just, make a bankruptcy order on the petition of some other creditor, and shall thereupon dismiss, on such terms as it thinks just, the petition in which proceedings have been stayed as aforesaid. (Amended 76 of 1996 s. 6) (7) (Repealed 76 of 1996 s. 6) [cf. 1914 c. 59 s. 5 U.K.] BANKRUPTCY ORDINANCE - SECT 9 Creditor's petition and order thereon VerDate:30/06/1997 (1) A creditor's petition shall be verified by affidavit of the creditor or of some person on his behalf having knowledge of the facts, and shall be served in the prescribed manner. (See Forms 10, 10A, 11, 12) (Amended 39 of 1987 s. 2) (2) At the hearing the court shall require proof of the debt of the petitioning creditor, of the service of the petition and of the act of bankruptcy, or if more than one act of bankruptcy is alleged in the petition, of some one of the alleged acts of bankruptcy, and if satisfied with the proof, may make a receiving order in pursuance of the petition. (3) If the court is not satisfied with the proof of the petitioning creditor's debt or of the act of bankruptcy or of the service of the petition, or is satisfied by the debtor that he is able to pay his debts, or considers that for other sufficient cause no order ought to be made, the court may dismiss the petition. (Amended 45 of 1986 s.2) (4) When the act of bankruptcy relied on is non-compliance with a bankruptcy notice to pay, secure or compound for a judgment debt or sum ordered to be paid, the court may, if it thinks fit, stay or dismiss the petition on the ground that an appeal is pending from the judgment or order. (5) Where the debtor appears on the petition and denies that he is indebted to the petitioner, or that he is indebted to such an amount as would justify the petitioner in presenting a petition against him, the court, on such security (if any) being given as the court may require for payment to the petitioner of any debt which may be established against him in due course of law, and of the costs of establishing the debt, may, instead of dismissing the petition, stay all proceedings on the petition for such time as may be required for trial of the question relating to the debt. (6) Where proceedings are stayed the court may, if by reason of the delay caused by the stay of proceedings or for any other cause it thinks just, make a receiving order on the petition of some other creditor, and shall thereupon dismiss, on such terms as it thinks just, the petition in which proceedings have been stayed as aforesaid. (7) A creditor's petition shall not after presentment be withdrawn without the leave of the court. [cf. 1914 c. 59 s. 5 U.K.] BANKRUPTCY ORDINANCE - SECT 10 Grounds of debtor's petition VerDate:01/04/1998 (1) A debtor's petition may be presented to the court only on the ground that the debtor is unable to pay his debts. (2) The petition shall be accompanied by a statement of the debtor's affairs containing- (a) such particulars of the debtor's creditors and of his debts and other liabilities and of his assets as may be prescribed; and (b) such other information as may be prescribed. (3) A debtor's petition may be presented whether or not the aggregate amount of indebtedness is equal to or exceeds the amount provided for a creditor's petition under section 6(2)(a). (Replaced 76 of 1996 s. 7) BANKRUPTCY ORDINANCE - SECT 10 Debtor's petition and order thereon VerDate:30/06/1997 (1) A debtor's petition shall allege that the debtor is unable to pay his debts, and the presentation thereof shall be deemed an act of bankruptcy without the previous filing by the debtor of any declaration of inability to pay his debts, and the court shall thereupon make a receiving order: (See Form 3) Provided that the court in its discretion may refuse the order if it considers that there is sufficient cause for no order to be made. (Replaced 45 of 1986 s. 3) In this subsection "sufficient cause" (充分因由) shall be deemed to include, inter alia, the non-attendance of the debtor, or in the case of a firm, of at least one of the partners thereof, on the hearing of the petition, the absence of any material book of account, or any fraud or misconduct not amounting to fraud by the debtor in relation to his affairs, or in the case of a firm or person carrying on business under a Chinese firm name, the non-production of the partnership book or of the receipt and money-payment chops used in connection with the business. (2) A debtor's petition shall not after presentment be withdrawn without the leave of the court. [cf. 1914 c. 59 s. 6 U.K.] "sufficient cause" (充分因由) BANKRUPTCY ORDINANCE - SECT 11 Appearance of Official Receiver on petition VerDate:01/04/1998 On the hearing of any creditor's or debtor's petition it shall be lawful for the Official Receiver to appear and to call, examine and cross-examine any witness and, if he so thinks fit, to support or oppose the making of a bankruptcy order. (Amended 76 of 1996 s. 73) BANKRUPTCY ORDINANCE - SECT 11 Appearance of Official Receiver on petition VerDate:30/06/1997 On the hearing of any creditor's or debtor's petition it shall be lawful for the Official Receiver to appear and to call, examine and cross-examine any witness and, if he so thinks fit, to support or oppose the making of a receiving order. BANKRUPTCY ORDINANCE - SECT 12 Effect of bankruptcy order VerDate:10/12/2007 (1) On the making of a bankruptcy order, the Official Receiver shall thereby become the provisional trustee of the property of the bankrupt, and thereafter, except as directed by this Ordinance, no creditor to whom the bankrupt is indebted in respect of any debt provable in bankruptcy shall have any remedy against the property or person of the bankrupt in respect of the debt, nor shall proceed with or commence any action or other legal proceedings, unless with the leave of the court and on such terms as the court may impose. (Amended 76 of 1996 ss. 8 and 72; 18 of 2005 s. 3) (1A) In the case of a debtor's petition, the Official Receiver as the provisional trustee may at any time appoint any person to act as the provisional trustee of the property of the bankrupt in his place if he considers that— (a) the value of the property of the bankrupt is unlikely to exceed $200000; and (b) the person has the qualifications prescribed in Schedule 3. (Added 18 of 2005 s. 3) (1B) The power of the Official Receiver to appoint a person as provisional trustee includes power to appoint 2 or more persons as joint provisional trustees; but such an appointment must make provision as to the circumstances in which the provisional trustees must act together and the circumstances in which one or more of them may act for the others. (Added 18 of 2005 s. 3) (1C) The Secretary for Financial Services and the Treasury may, by notice published in the Gazette, amend Schedule 3. (Added 18 of 2005 s. 3) (2) This section shall not affect the power of any secured creditor to realize or otherwise deal with his security. [cf. 1914 c. 59 s. 7 U.K.] BANKRUPTCY ORDINANCE - SECT 12 Effect of bankruptcy order VerDate:01/04/1998 (1) On the making of a bankruptcy order the Official Receiver shall be thereby constituted receiver of the property of the bankrupt, and thereafter, except as directed by this Ordinance, no creditor to whom the bankrupt is indebted in respect of any debt provable in bankruptcy shall have any remedy against the property or person of the bankrupt in respect of the debt, nor shall proceed with or commence any action or other legal proceedings, unless with the leave of the court and on such terms as the court may impose. (Amended 76 of 1996 ss. 8 and 72) (2) This section shall not affect the power of any secured creditor to realize or otherwise deal with his security. [cf. 1914 c. 59 s. 7 U.K.] BANKRUPTCY ORDINANCE - SECT 12 Effect of receiving order VerDate:30/06/1997 (1) On the making of a receiving order the Official Receiver shall be thereby constituted receiver of the property of the debtor, and thereafter, except as directed by this Ordinance, no creditor to whom the debtor is indebted in respect of any debt provable in bankruptcy shall have any remedy against the property or person of the debtor in respect of the debt, or shall commence any action or other legal proceedings, unless with the leave of the court and on such terms as the court may impose. (2) This section shall not affect the power of any secured creditor to realize or otherwise deal with his security. [cf. 1914 c.59 s.7 U.K.] BANKRUPTCY ORDINANCE - SECT 13 Power to appoint interim trustee VerDate:10/12/2007 The court may, if it is shown to be necessary for the protection of the estate, at any time after the presentation of a bankruptcy petition and before a bankruptcy order is made, appoint the Official Receiver to be interim trustee of the property of the debtor or of any part thereof, and direct him to take immediate possession thereof or of any part thereof. (Amended 76 of 1996 s. 9; 18 of 2005 s. 4) [cf. 1914 c. 59 s. 8 U.K.] BANKRUPTCY ORDINANCE - SECT 13 Power to appoint interim receiver VerDate:01/04/1998 The court may, if it is shown to be necessary for the protection of the estate, at any time after the presentation of a bankruptcy petition and before a bankruptcy order is made, appoint the Official Receiver to be interim receiver of the property of the debtor or of any part thereof, and direct him to take immediate possession thereof or of any part thereof. (Amended 76 of 1996 s. 9) [cf. 1914 c. 59 s. 8 U.K.] BANKRUPTCY ORDINANCE - SECT 13 Power to appoint interim receiver VerDate:30/06/1997 The court may, if it is shown to be necessary for the protection of the estate, at any time after the presentation of a bankruptcy petition and before a receiving order is made, appoint the Official Receiver to be interim receiver of the property of the debtor or of any part thereof, and direct him to take immediate possession thereof or of any part thereof. (See Form 13) [cf. 1914 c.59 s. 8 U.K.] BANKRUPTCY ORDINANCE - SECT 14 Power to stay pending proceedings VerDate:30/06/1997 (1) The court may at any time after the presentation of a bankruptcy petition either stay any action, execution or other legal process against the property or person of the debtor or allow it to continue on such terms as it may think just. (2) Where the court makes an order staying any action or proceedings or staying proceedings generally, the order may be served by sending a copy thereof, under the seal of the court, by post to the address for service of the plaintiff or other party prosecuting such proceeding or to the address of his solicitor. (3) Without prejudice to the provisions of subsection (1), if the court orders the release of any debtor who is under execution for a civil debt, it may impose such conditions as it thinks fit, and in particular it may require as a condition of such release that the debtor find security to attend in the subsequent bankruptcy proceedings and to abide by all orders of the court relating to the said proceedings. [cf. 1914 c. 59 s. 9 U.K.] BANKRUPTCY ORDINANCE - SECT 15 Power to appoint special manager VerDate:10/12/2007 (1) The court may, on the application of the Official Receiver or of any creditor or creditors, and if satisfied that the nature of the debtor's estate or business or the interests of the creditors generally require the appointment of a special manager of the estate or business other than the Official Receiver, appoint a manager thereof accordingly, who shall have such powers (including any of the powers of a receiver) as may be entrusted to him by the Official Receiver. (Amended 18 of 2005 s. 5) (2) The special manager shall give security and account in such manner as the court may direct. (3) The special manager shall receive such remuneration as may be fixed by the court. (Amended 76 of 1996 s. 10) (4) The term of office of the special manager shall last until— (a) in a case where a provisional trustee is appointed under section 12(1A), the appointment; or (b) in any other case, a trustee is appointed or constituted under section 17, 100D(1), 112(4) or 112A(1)(i) or paragraph 6 of Part II of Schedule 1. (Added 18 of 2005 s. 5) [cf. 1914 c. 59 s. 10 U.K.] BANKRUPTCY ORDINANCE - SECT 15 Power to appoint special manager VerDate:01/04/1998 (1) The court may, on the application of the Official Receiver or of any creditor or creditors, and if satisfied that the nature of the debtor's estate or business or the interests of the creditors generally require the appointment of a special manager of the estate or business other than the Official Receiver, appoint a manager thereof accordingly to act until a trustee is appointed, and with such powers (including any of the powers of a receiver) as may be entrusted to him by the Official Receiver. (2) The special manager shall give security and account in such manner as the court may direct. (3) The special manager shall receive such remuneration as may be fixed by the court. (Amended 76 of 1996 s. 10) [cf. 1914 c. 59 s. 10 U.K.] BANKRUPTCY ORDINANCE - SECT 15 Power to appoint special manager VerDate:30/06/1997 (1) The court may, on the application of the Official Receiver or of any creditor or creditors, and if satisfied that the nature of the debtor's estate or business or the interests of the creditors generally require the appointment of a special manager of the estate or business other than the Official Receiver, appoint a manager thereof accordingly to act until a trustee is appointed, and with such powers (including any of the powers of a receiver) as may be entrusted to him by the Official Receiver. (2) The special manager shall give security and account in such manner as the court may direct. (3) The special manager shall receive such remuneration as may be prescribed. [cf. 1914 c. 59 s. 10 U.K.] BANKRUPTCY ORDINANCE - SECT 16 Advertisement of bankruptcy order VerDate:01/04/1998 Notice of every bankruptcy order, stating the name, address and description of the debtor, the date of the order, and the date of the petition, shall be gazetted by the Official Receiver. (Amended 76 of 1996 s. 73) [cf. 1914 c. 59 s. 11 U.K.] BANKRUPTCY ORDINANCE - SECT 16 Advertisement of receiving order VerDate:30/06/1997 Notice of every receiving order, stating the name, address and description of the debtor, the date of the order, and the date of the petition, shall be gazetted by the Official Receiver. (See Form 27) [cf. 1914 c.59 s.11 U.K.] BANKRUPTCY ORDINANCE - SECT 17 Power to make appointment of trustees VerDate:01/04/1998 Proceedings consequent on order (1) The power to appoint some fit person as trustee (whether the first such trustee or a trustee appointed to fill any vacancy) is exercisable, except at a time when an order for the summary administration of the bankrupt's estate is in force, by a general meeting of the bankrupt's creditors. (2) Any power to appoint a person as trustee includes power to appoint 2 or more persons as joint trustees; but such an appointment must make provision as to the circumstances in which the trustees must act together and the circumstances in which one or more of them may act for the others. (3) The appointment of any person as trustee takes effect at the time specified in the creditors' resolution or the court order, as the case may be, appointing him. (4) This section is without prejudice to the provisions of this Ordinance under which the Official Receiver is, in certain circumstances, to be trustee. (Replaced 76 of 1996 s. 11) BANKRUPTCY ORDINANCE - SECT 17 First and other meetings of creditors VerDate:30/06/1997 Proceedings consequent on order (1) As soon as may be after the making of a receiving order against a debtor a general meeting of his creditors (in this Ordinance referred to as the first meeting of creditors) shall be held for the purpose of considering whether a proposal for a composition or scheme of arrangement shall be accepted, or whether it is expedient that the debtor shall be adjudged bankrupt, and generally as to the mode of dealing with the debtor's property. (See Forms 30, 31, 32, 39 45) (2) The Chief Justice may, with the approval of Legislative Council, make rules providing for the summoning of and proceedings at the first and other meetings of creditors. (Replaced 33 of 1939; G.N. 840 of 1940 Supp. Schedule) [cf. 1914 c.59 s.13 U.K.] BANKRUPTCY ORDINANCE - SECT 17A Summoning of meeting to appoint first trustee VerDate:10/12/2007 (1) Where a bankruptcy order has been made and no order for the summary administration of the bankrupt's estate has been made, it is the duty of the provisional trustee, as soon as practicable in the period of 12 weeks beginning with the day on which the order was made, to decide whether to summon a general meeting of the bankrupt's creditors for the purpose of appointing a trustee under section 17. (2) This section does not apply where a criminal bankruptcy order was made and it is subject to the provision made in section 17B(3). (3) Subject to section 17B, if the provisional trustee decides not to summon such a meeting, he shall, before the end of the period of 12 weeks referred to in subsection (1), give notice of his decision to the court and to every creditor of the bankrupt who is known to the provisional trustee or is identified in the bankrupt's statement of affairs. (4) On the date of the giving to the court of a notice under subsection (3) the provisional trustee is the trustee. (Added 76 of 1996 s. 11. Amended 18 of 2005 s. 6) BANKRUPTCY ORDINANCE - SECT 17A Summoning of meeting to appoint first trustee VerDate:01/04/1998 (1) Where a bankruptcy order has been made and no order for the summary administration of the bankrupt's estate has been made, it is the duty of the Official Receiver, as soon as practicable in the period of 12 weeks beginning with the day on which the order was made, to decide whether to summon a general meeting of the bankrupt's creditors for the purpose of appointing a trustee. (2) This section does not apply where a criminal bankruptcy order was made and it is subject to the provision made in section 17B(3). (3) Subject to section 17B, if the Official Receiver decides not to summon such a meeting, he shall, before the end of the period of 12 weeks referred to in subsection (1), give notice of his decision to the court and to every creditor of the bankrupt who is known to the Official Receiver or is identified in the bankrupt's statement of affairs. (4) On the date of the giving to the court of a notice under subsection (3) the Official Receiver is the trustee. (Added 76 of 1996 s. 11) BANKRUPTCY ORDINANCE - SECT 17B Power of creditors to requisition meeting VerDate:10/12/2007 (1) Where in the case of any bankruptcy, the provisional trustee has not yet summoned, or has decided not to summon, a general meeting of the bankrupt's creditors for the purpose of appointing a trustee under section 17, any creditor of the bankrupt may request the provisional trustee to summon such a meeting for that purpose. (2) If such a request appears to the provisional trustee to be made with the concurrence of not less than 1/4 in value of the bankrupt's creditors (including the creditor making the request), it is the duty of the provisional trustee to summon the requested meeting. (3) Where subsection (2) applies, the provisional trustee is required neither to reach a decision for the purposes of section 17A nor (if he has reached one) to serve any notice under section 17A(3). (Added 76 of 1996 s. 11. Amended 18 of 2005 s. 7) BANKRUPTCY ORDINANCE - SECT 17B Power of creditors to requisition meeting VerDate:01/04/1998 (1) Where in the case of any bankruptcy, the Official Receiver has not yet summoned, or has decided not to summon, a general meeting of the bankrupt's creditors for the purpose of appointing the trustee, any creditor of the bankrupt may request the Official Receiver to summon such a meeting for that purpose. (2) If such a request appears to the Official Receiver to be made with the concurrence of not less than 1/4 in value of the bankrupt's creditors (including the creditor making the request), it is the duty of the Official Receiver to summon the requested meeting. (3) Where subsection (2) applies, the Official Receiver is required neither to reach a decision for the purposes of section 17A nor (if he has reached one) to serve any notice under section 17A(3). (Added 76 of 1996 s. 11) BANKRUPTCY ORDINANCE - SECT 18 Statement of affairs VerDate:10/12/2007 (1) Where a bankruptcy order has been made otherwise than on a debtor's petition, the bankrupt shall submit a statement of his affairs, which shall be verified by affidavit, to the trustee not more than 21 days after the day the order was made. (2) The statement of affairs shall contain- (a) such particulars of the bankrupt's creditors and of his debts and other liabilities and of his assets as may be prescribed; and (b) such other information as may be prescribed. (3) The trustee may, if he thinks fit- (Amended 18 of 2005 s. 8) (a) release the bankrupt from his duty under subsection (1); or (b) extend the period specified in that subsection, and, where the trustee has refused to exercise a power conferred by this section, the court may, if it thinks fit, exercise it. (4) A bankrupt who, without reasonable excuse- (a) fails to comply with the obligation imposed by this section; or (b) submits a statement of affairs that does not comply with the prescribed requirements, is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject). (5) Any person stating himself to be a creditor of the bankrupt may, on payment of the prescribed fee, personally or by agent inspect the statement at all reasonable times and take any copy thereof or extract therefrom, but any person untruthfully so stating himself to be a creditor is guilty of a contempt of court and liable to be punished accordingly on the application of the trustee. (Replaced 76 of 1996 s. 12. Amended 18 of 2005 s. 8) BANKRUPTCY ORDINANCE - SECT 18 Statement of affairs VerDate:01/04/1998 (1) Where a bankruptcy order has been made otherwise than on a debtor's petition, the bankrupt shall submit a statement of his affairs, which shall be verified by affidavit, to the Official Receiver not more than 21 days after the day the order was made. (2) The statement of affairs shall contain- (a) such particulars of the bankrupt's creditors and of his debts and other liabilities and of his assets as may be prescribed; and (b) such other information as may be prescribed. (3) The Official Receiver may, if he thinks fit- (a) release the bankrupt from his duty under subsection (1); or (b) extend the period specified in that subsection, and, where the Official Receiver has refused to exercise a power conferred by this section, the court may, if it thinks fit, exercise it. (4) A bankrupt who, without reasonable excuse- (a) fails to comply with the obligation imposed by this section; or (b) submits a statement of affairs that does not comply with the prescribed requirements, is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject). (5) Any person stating himself to be a creditor of the bankrupt may, on payment of the prescribed fee, personally or by agent inspect the statement at all reasonable times and take any copy thereof or extract therefrom, but any person untruthfully so stating himself to be a creditor is guilty of a contempt of court and liable to be punished accordingly on the application of the trustee or Official Receiver. (Replaced 76 of 1996 s. 12) BANKRUPTCY ORDINANCE - SECT 18 Debtor's statement of affairs VerDate:30/06/1997 (1) Where a receiving order is made against a debtor, he shall, unless the court otherwise orders, make out and submit to the Official Receiver a statement of and in relation to his affairs in the prescribed form, verified by affidavit, and showing the particulars of the debtor's assets, debts and liabilities, wherever situate, the names, addresses and occupations of his creditors, whether in Hong Kong or elsewhere, the securities held by them respectively, the dates when the securities were respectively given, and such further or other information as may be prescribed or as the Official Receiver may require. Such statement shall also give details of all property held by him in a t'ong name or under any alias, or by his wife or any concubine of his, or by any person in trust for him or them, with full particulars as to the manner and date of its being acquired. (See Form 28) (Amended 65 of 1976 s.3; 47 of 1984 ss.3 & 16) (2) The statement shall be so submitted within the following times, namely- (a) if the order is made on the petition of the debtor, within 3 days from the date of the order; (b) if the order is made on the petition of a creditor, within 7 days from the date of the order, but the court may, in either case for special reasons, extend the time. (3) If the debtor fails without reasonable excuse to comply with the requirements of this section, he may be punished for a contempt of court and the court may, on the application of the Official Receiver or of any creditor, adjudge him bankrupt. (See Form 75) (4) Any person stating himself to be a creditor of the bankrupt may, on payment of the prescribed fee, personally or by agent inspect the statement at all reasonable times and take any copy thereof or extract therefrom, but any person untruthfully so stating himself to be a creditor shall be guilty of a contempt of court and shall be punishable accordingly on the application of the trustee or Official Receiver. [cf. 1914 c. 59 s. 14 U.K.] BANKRUPTCY ORDINANCE - SECT 19 Public examination of bankrupt VerDate:10/12/2007 Public examination of debtor (1) Where a bankruptcy order has been made, the Official Receiver or the trustee may at any time before the discharge of the bankrupt apply to the court for the public examination of the bankrupt. (Amended 18 of 2005 s. 9) (2) Unless the court otherwise orders, the trustee shall make an application under subsection (1) if notice requiring him to do so is given to him, in accordance with the rules, by one of the bankrupt's creditors with the concurrence of not less than 1/4 in value of such creditors (including the creditor giving notice). (Amended 18 of 2005 s. 9) (3) Where one of the bankrupt's creditors, without the requisite concurrence under subsection (2), so requests, the trustee shall make an application under subsection (1) but, notwithstanding subsection (4), the court may decline to direct that a public examination of the bankrupt be held. (Amended 18 of 2005 s. 9) (4) On an application under subsection (1), the court shall direct that a public examination of the bankrupt shall be held on a day appointed by the court; and the bankrupt shall attend on that day and be publicly examined as to his affairs, dealings and property. (4A) The trustee may, before or at any time after making an application under subsection (1), in writing request the creditor at whose instance the application is made to deposit with him within the specified time such sum or further sum as he considers necessary to pay his costs and expenses in holding the public examination. (Added 18 of 2005 s. 9) (4B) Notwithstanding anything in subsections (2) and (3), the trustee may refuse to make an application under subsection (1) or discontinue the public examination concerned if the creditor to whom a request is made under subsection (4A) fails to comply with the request. (Added 18 of 2005 s. 9) (5) The following may take part in the public examination of the bankrupt and may question him concerning his affairs, dealings and property and the causes of his failure- (a) the Official Receiver and, in the case of a debtor adjudged bankrupt on a petition under section 3(1)(d), the Official Petitioner; (b) the trustee; (Amended 18 of 2005 s. 9) (c) any person who has been appointed as special manager of the bankrupt's estate or business; (d) any creditor of the bankrupt who has tendered a proof in the bankruptcy. (6) The bankrupt may, but not at the expense of the estate, employ a solicitor with or without counsel, who may put to him such questions as the court may allow for the purpose of enabling him to explain or qualify any answer given by him, and may make representations on his behalf. (7) There shall be made in writing such record of the examination as the court thinks proper and the record shall be read over either to or by the bankrupt, signed by him, and verified by affidavit at a venue fixed by the court. (8) (Repealed 18 of 2005 s. 9) (9) It shall be the duty of a bankrupt examined under this section to answer all questions that the court may put or allow to be put to him. (10) Evidence given on oath under this section shall not be admissible in criminal proceedings other than for perjury by the person who gave it. (Replaced 76 of 1996 s. 13) BANKRUPTCY ORDINANCE - SECT 19 Public examination of bankrupt VerDate:01/04/1998 Public examination of debtor (1) Where a bankruptcy order has been made, the Official Receiver may at any time before the discharge of the bankrupt apply to the court for the public examination of the bankrupt. (2) Unless the court otherwise orders, the Official Receiver shall make an application under subsection (1) if notice requiring him to do so is given to him, in accordance with the rules, by one of the bankrupt's creditors with the concurrence of not less than 1/4 in value of such creditors (including the creditor giving notice). (3) Where one of the bankrupt's creditors, without the requisite concurrence under subsection (2), so requests, the Official Receiver shall make an application under subsection (1) but, notwithstanding subsection (4), the court may decline to direct that a public examination of the bankrupt be held. (4) On an application under subsection (1), the court shall direct that a public examination of the bankrupt shall be held on a day appointed by the court; and the bankrupt shall attend on that day and be publicly examined as to his affairs, dealings and property. (5) The following may take part in the public examination of the bankrupt and may question him concerning his affairs, dealings and property and the causes of his failure- (a) the Official Receiver and, in the case of a debtor adjudged bankrupt on a petition under section 3(1)(d), the Official Petitioner; (b) the trustee, if his appointment has taken effect; (c) any person who has been appointed as special manager of the bankrupt's estate or business; (d) any creditor of the bankrupt who has tendered a proof in the bankruptcy. (6) The bankrupt may, but not at the expense of the estate, employ a solicitor with or without counsel, who may put to him such questions as the court may allow for the purpose of enabling him to explain or qualify any answer given by him, and may make representations on his behalf. (7) There shall be made in writing such record of the examination as the court thinks proper and the record shall be read over either to or by the bankrupt, signed by him, and verified by affidavit at a venue fixed by the court. (8) Where the Official Receiver, after a public examination is held, is of the opinion that the application for the holding of the public examination was frivolous or vexatious, he may apply to the court for an order that the creditors who required the public examination to be held pay, on a pro rata basis based on value of debts, the costs incurred by the Official Receiver in holding it and the court may, if it agrees, assess the costs incurred and make an order for the pro rata payment of such costs. (9) It shall be the duty of a bankrupt examined under this section to answer all questions that the court may put or allow to be put to him. (10) Evidence given on oath under this section shall not be admissible in criminal proceedings other than for perjury by the person who gave it. (Replaced 76 of 1996 s. 13) BANKRUPTCY ORDINANCE - SECT 19 Public examination of debtor VerDate:30/06/1997 Public examination of debtor (1) Where the court makes a receiving order, it shall, save as in this Ordinance provided, hold a public sitting, on a day to be appointed by the court, for the examination of the debtor, and the debtor shall attend thereat and shall be examined as to his conduct, dealings and property. (See Forms 52 to 63) (2) The examination shall be held as soon as conveniently may be after the expiration of the time for the submission of the debtor's statement of affairs. (3) The court may adjourn the examination from time to time. (4) Any creditor who has tendered a proof, or his representative authorized in writing, may question the debtor concerning his affairs and the causes of his failure. (5) The Official Receiver shall take part in the examination of the debtor, and for the purpose thereof, if specially authorized by the court, may employ a solicitor with or without counsel. No solicitor or counsel shall be allowed to take part in the examination on behalf of the debtor. (6) If a trustee is appointed before the conclusion of the examination, he may take part therein. (7) The court may put such questions to the debtor as it may think expedient. (8) The debtor shall be examined upon oath and it shall be his duty to answer all such questions as the court may put or allow to be put to him. Such notes of the examination as the court thinks proper shall be taken down either in shorthand or longhand and they or a transcript thereof shall be read over either to or by the debtor and signed by him and may thereafter, save as in this Ordinance provided, be used in evidence against him; they shall also be open to the inspection of any creditor at all reasonable times upon payment of the prescribed fee. (9) When the court is of opinion that the affairs of the debtor have been sufficiently investigated, it shall by order declare that his examination is concluded, but such order shall not be made until after the day appointed for the first meeting of creditors. (10) Where the debtor is a lunatic or suffers from any such mental or physical affliction or disability as in the opinion of the court makes him unfit to attend his public examination, or is absent from Hong Kong, the court may make an order dispensing with such examination or directing that the debtor be examined on such terms, in such manner and at such place as to the court seems expedient. (Amended 47 of 1984 s.16) [cf. 1914 c. 59 s. 15 U.K.] BANKRUPTCY ORDINANCE - SECT 19A (Repealed 76 of 1996 s. 13) VerDate:01/04/1998 BANKRUPTCY ORDINANCE - SECT 19A Power of court to dispense with public examination of debtor on application of Official Receiver VerDate:30/06/1997 (1) Notwithstanding section 19 the court may, on the application of the Official Receiver, make an order dispensing with the public examination of the debtor. (2) Before making an application under subsection (1) the Official Receiver shall- (a) publish notice of his intention to make the application in the Gazette; and (b) give notice of his intention to make the application to every creditor who has tendered a proof. (3) Any creditor who has tendered a proof and wishes to oppose the making of an order under subsection (1) shall, within 21 days after the date of publication of a notice pursuant to subsection (2), give notice in writing to the Official Receiver of his intention to oppose the making of an order and may thereafter appear and oppose the making of an order. (4) Before making an order under subsection (1) the court shall consider a report of the Official Receiver made in the manner prescribed. (Added 1 of 1976 s.2) BANKRUPTCY ORDINANCE - SECT 20 Interim order VerDate:01/04/1998 Voluntary arrangements (1) In the circumstances specified in section 20A, the court may make an interim order under this section. (2) An interim order has the effect that, during the period for which it is in force- (a) no bankruptcy petition relating to the debtor may be presented or proceeded with; and (b) no other proceedings, no execution or other legal process and no distress may be commenced or continued against the debtor or his property except with the leave of the court. (Replaced 76 of 1996 s. 13) BANKRUPTCY ORDINANCE - SECT 20 Compositions and schemes of arrangement VerDate:30/06/1997 Compositions and schemes of arrangement (1) Where a debtor intends to make a proposal for a composition in satisfaction of his debts or a proposal for a scheme of arrangement of his affairs, he shall, within 4 days of submitting his statement of affairs or within such time thereafter as the Official Receiver may fix, lodge with the Official Receiver a proposal in writing, signed by him, embodying the terms of the composition or scheme which he is desirous of submitting for the consideration of his creditors and setting out particulars of any sureties or securities proposed. (2) In such case the Official Receiver shall hold a meeting of creditors before the public examination of the debtor is concluded, and send to each creditor before the meeting a copy of the debtor's proposal with a report thereon; and if at that meeting a majority in number and three-fourths in value of all the creditors who have proved resolve to accept the proposal, it shall be deemed to be duly accepted by the creditors, and when approved by the court shall be binding on all the creditors. (See Forms 64, 65, 66) (3) The debtor may at the meeting amend the terms of his proposal, if the amendment is in the opinion of the Official Receiver calculated to benefit the general body of creditors. (4) Any creditor who has proved his debt may assent to or dissent from the proposal by a letter addressed to the Official Receiver so as to be received by him not later than the day preceding the meeting, and any such assent or dissent shall have effect as if the creditor had been present and had voted at the meeting. (5) The debtor or the Official Receiver may, after the proposal is accepted by the creditors, apply to the court to approve it, and notice of the time appointed for hearing the application shall be given to each creditor who has proved. (See Form 68) (6) The application shall not be heard until after the public examination of the debtor has been concluded, or dispensed with under section 19A. Any creditor who has proved may be heard by the court in opposition to the application, notwithstanding that he may at a meeting of creditors have voted for the acceptance of the proposal. (Amended 1 of 1976 s.3) (7) For the purpose of approving a composition or scheme by joint debtors the court may, if it thinks fit and on the report of the Official Receiver that it is expedient so to do, dispense with the public examination of any of the joint debtors if they are or any one of them is prevented from attending the examination by illness or absence from Hong Kong but one at least of such joint debtors shall be publicly examined. (Amended 47 of 1984 s.16) (8) The court shall before approving the proposal hear a report of the Official Receiver as to the terms thereof and as to the conduct of the debtor, and any objections which may be made by or on behalf of any creditor. (9) If the court is of opinion that the terms of the proposal are not reasonable or are not calculated to benefit the general body of creditors, the court shall refuse to approve the proposal. (10) If any facts are proved on proof of which the court would be required either to refuse, suspend or attach conditions to the debtor's discharge were he adjudged bankrupt, the court shall refuse to approve the proposal unless it provides reasonable security for the payment of not less than 25 per cent on all the unsecured debts provable against the debtor's estate. (11) In any other case the court may either approve or refuse to approve the proposal. (12) If the court approves the proposal, the approval may be testified by the seal of the court being attached to the instrument containing the terms of the proposed composition or scheme, or by the terms being embodied in an order of the court. (See Form 70) (13) A composition or scheme accepted and approved in pursuance of this section shall be binding on all the creditors so far as relates to any debts due to them from the debtor and provable in bankruptcy. (14) A certificate of the Official Receiver that a composition or scheme has been duly accepted and approved shall, in the absence of fraud, be conclusive as to its validity. (15) The provisions of a composition or scheme under this section may be enforced by the court on application by any person interested, and any disobedience of an order of the court made on the application shall be deemed a contempt of court. (See Forms 72, 73, 98, 101) (16) If default is made in payment of any instalment due in pursuance of the composition or scheme, or if it appears to the court on satisfactory evidence that the composition or scheme cannot, in consequence of legal difficulties or for any sufficient cause, proceed without injustice or undue delay to the creditors or to the debtor, or that the approval of the court was obtained by fraud, the court may, if it thinks fit, on application by the Official Receiver or the trustee or by any creditor, adjudge the debtor bankrupt and annul the composition or scheme, but without prejudice to the validity of any sale, disposition or payment duly made or thing duly done under or in pursuance of the composition or scheme. Where a debtor is adjudged bankrupt under this subsection, any debt provable in other respects, which has been contracted before the adjudication, shall be provable in the bankruptcy. (17) If under or in pursuance of a composition or scheme a trustee is appointed to administer the debtor's property or manage his business or to distribute the composition, section 29 and Part V shall apply as if the trustee were a trustee in a bankruptcy and as if the terms "bankruptcy" (破 產、破產案), "bankrupt" (破產人) and "order of adjudication" (判決令) included respectively a composition or scheme of arrangement, a compounding or arranging debtor and an order approving the composition or scheme. (18) Part III shall, so far as the nature of the case and the terms of the composition or scheme admit, apply thereto, the same interpretation being given to the words "trustee", "bankruptcy", "bankrupt" and "order of adjudication", as in subsection (17). (19) No composition or scheme shall be approved by the court which does not provide for the payment in priority to other debts of all debts directed to be so paid in the distribution of the property of a bankrupt. (20) The acceptance by a creditor of a composition or scheme shall not release any person who under this Ordinance would not be released by an order of discharge if the debtor had been adjudged bankrupt. [cf. 1914 c. 59 s. 16 U.K.] "bankruptcy" (破產、破產案), "bankrupt" (破產人) and "order of adjudication" (判決令) BANKRUPTCY ORDINANCE - SECT 20A Application for interim order VerDate:01/04/1998 (1) Application to the court for an interim order may be made where the debtor intends to make a proposal. (2) The proposal must provide for a nominee to act in relation to the voluntary arrangement either as trustee or otherwise for the purpose of supervising its implementation. (3) The application may be made- (a) if the debtor is an undischarged bankrupt, by the debtor, the trustee or the Official Receiver; and (b) in any other case, by the debtor. (4) An application shall not be made by an undischarged bankrupt unless he has given notice of the proposal to- (a) the Official Receiver; and (b) the trustee, if any. (Added 76 of 1996 s. 13) BANKRUPTCY ORDINANCE - SECT 20B Effect of application VerDate:01/04/1998 (1) At any time when an application under section 20A for an interim order is pending the court may stay any action, execution or other legal process against the property or person of the debtor. (2) Any court in which proceedings are pending against a debtor may, on proof that an application under that section has been made in respect of that debtor, either stay the proceedings or allow them to continue on such terms as it thinks fit. (Added 76 of 1996 s. 13) BANKRUPTCY ORDINANCE - SECT 20C Cases in which interim order can be made VerDate:01/04/1998 (1) The court shall not make an interim order on an application under section 20A unless it is satisfied- (a) that the debtor intends to make a proposal; (b) that on the day of the making of the application the debtor was an undischarged bankrupt or was able to petition for his own bankruptcy; and (c) that no previous application has been made by the debtor for an interim order in the period of 12 months ending with that day. (2) The court may make an order if it thinks that it would be appropriate to do so for the purpose of facilitating the consideration and implementation of the debtor's proposal. (3) Where the debtor is an undischarged bankrupt, the interim order may contain provision as to the conduct of the bankruptcy, and the administration of the bankrupt's estate, during the period for which the order is in force. (4) Subject to subsections (5) and (6), the provision contained in an interim order by virtue of subsection (3) may include provision staying proceedings in the bankruptcy or modifying any provision of this Ordinance or the rules in their application to the debtor's bankruptcy. (5) An interim order shall not, in relation to a bankrupt, make provision relaxing or removing any of the requirements of this Ordinance or the rules, unless the court is satisfied that that provision is unlikely to result in any significant diminution in, or in the value of, the debtor's estate for the purposes of the bankruptcy. (6) Subject to sections 20A to 20L, an interim order made on an application under section 20A ceases to have effect at the end of the period of 14 days beginning with the day after the making of the order. <* Note - Exp. X-Ref.: Sections 20A, 20B, 20C, 20D, 20E, 20F, 20G, 20H, 20I, 20J, 20K, 20L *> (Added 76 of 1996 s. 13) BANKRUPTCY ORDINANCE - SECT 20D Nominee's report on debtor's proposal VerDate:01/04/1998 (1) Where an interim order has been made on an application under section 20A, the nominee shall, before the order ceases to have effect, submit a report to the court stating- (a) whether, in his opinion, a meeting of the debtor's creditors should be summoned to consider the debtor's proposal; and (b) if in his opinion such a meeting should be summoned, the date on which, and time and place at which, he proposes the meeting should be held. (2) For the purpose of enabling the nominee to prepare his report the debtor shall submit to the nominee- (a) a document setting out the terms of the voluntary arrangement which the debtor is proposing; and (b) a statement of his affairs containing- (i) such particulars of his creditors and of his debts and other liabilities and of his assets as may be prescribed; and (ii) such other information as may be prescribed. (3) The court may, on an application made by the debtor or the nominee in a case where the nominee has failed to submit the report required by this section, direct that the interim order shall continue, or (if it has ceased to have effect) be renewed, for such further period as the court may specify in the direction. (4) If the court is satisfied on receiving the nominee's report that a meeting of the debtor's creditors would be summoned to consider the debtor's proposal, the court shall direct that the period for which the interim order has effect shall be extended, for such further period as it may specify in the direction, for the purpose of enabling the debtor's proposal to be considered by his creditors. (5) The court may discharge the interim order if it is satisfied, on the application of the nominee- (a) that the debtor has failed to comply with his obligations under subsection (2); or (b) that for any other reason it would be inappropriate for a meeting of the debtor's creditors to be summoned to consider the debtor's proposal. (Added 76 of 1996 s. 13) BANKRUPTCY ORDINANCE - SECT 20E Summoning of creditors' meeting VerDate:01/04/1998 (1) Where it has been reported to the court under section 20D that a meeting of the debtor's creditors should be summoned, the nominee shall, unless the court otherwise directs, summon that meeting for the time, date and place proposed in his report. (2) The persons to be summoned to the meeting are every creditor of the debtor of whose claim and address the person summoning the meeting is aware. (3) For this purpose the creditors of a debtor who is an undischarged bankrupt include- (a) every person who is a creditor of the bankrupt in respect of a bankruptcy debt; and (b) every person who would be such a creditor if the bankruptcy had commenced on the day on which notice of the meeting is given. (Added 76 of 1996 s. 13) BANKRUPTCY ORDINANCE - SECT 20F Decisions of creditors' meeting VerDate:01/04/1998 (1) A creditors' meeting summoned under section 20E shall decide whether to approve the proposed voluntary arrangement. (2) The meeting may approve the proposed voluntary arrangement with modifications, but shall not do so unless the debtor consents to each modification. (3) The meeting shall not approve any proposal or modification which affects the right of a secured creditor of the debtor to enforce his security, except with the concurrence of the creditor concerned. (4) The meeting shall not approve any proposal or modification under which- (a) any debt of the debtor that is given priority under section 38 is to be paid otherwise than in priority to such of his debts as are not given such priority; or (b) a creditor of the debtor in respect of a debt that is given priority under section 38 is to be paid an amount that is less than he would be entitled to under the provisions of that section, except with the concurrence of the creditor concerned. (5) The meeting shall be conducted in accordance with the rules. (Added 76 of 1996 s. 13) BANKRUPTCY ORDINANCE - SECT 20G Report of decisions to court VerDate:01/04/1998 (1) After the conclusion in accordance with the rules of the meeting summoned under section 20E, the nominee shall report the result of the meeting to the court and, immediately after so reporting, shall give notice of the result of the meeting to such persons as may be prescribed. (2) If the report is that the meeting has declined (with or without modifications) to approve the debtor's proposal, the court may discharge any interim order which is in force in relation to the debtor. (Added 76 of 1996 s. 13) BANKRUPTCY ORDINANCE - SECT 20H Effect of approval VerDate:01/04/1998 (1) Where the meeting summoned under section 20E approves the proposed voluntary arrangement (with or without modifications)- (a) the approved arrangement- (i) takes effect as if made by the debtor at the meeting; and (ii) binds every person who in accordance with the rules had notice of, and was entitled to vote at, the meeting (whether or not he was present or represented at it) as if he were a party to the arrangement; and (b) any interim order in force in relation to the debtor immediately before the end of the period of 28 days beginning with the day on which the report with respect to the creditors' meeting was made to the court under section 20G ceases to have effect at the end of that period. (2) Subsection (1)(b) applies except to such extend as the court may direct for the purposes of any application under section 20J. (3) Where proceedings on a bankruptcy petition have been stayed by an interim order which ceases to have effect under subsection (1)(b), that petition is deemed, unless the court otherwise orders, to have been dismissed. (Added 76 of 1996 s. 13) BANKRUPTCY ORDINANCE - SECT 20I Effect where debtor an undischarged bankrupt VerDate:01/04/1998 (1) Where the creditors' meeting summoned under section 20E approves the proposed voluntary arrangement (with or without modifications) and the debtor is an undischarged bankrupt, the court may- (a) annul the bankruptcy order by which he was adjudged bankrupt; or (b) give such directions with respect to the conduct of the bankruptcy and the administration of the bankrupt's estate as it thinks appropriate for facilitating the implementation of the approved voluntary arrangement. (2) The court shall not annul a bankruptcy order under subsection (1)- (a) at any time before the end of the period of 28 days beginning with the day on which the report of the creditors' meeting was made to the court under section 20G; or (b) at any time when an application under section 20J, or an appeal in respect of such an application, is pending or at any time in the period within which such an appeal may be brought. (Added 76 of 1996 s. 13) BANKRUPTCY ORDINANCE - SECT 20J Challenge of meeting's decision VerDate:01/04/1998 (1) Subject to this section, an application to the court may be made, by any of the persons specified in subsection (2), on one or both of the following grounds- (a) that a voluntary arrangement approved by a creditors' meeting summoned under section 20E unfairly prejudices the interests of a creditor of the debtor; (b) that there has been some material irregularity at or in relation to such a meeting. (2) The persons who may apply under this section are- (a) the debtor; (b) a person entitled, in accordance with the rules, to vote at the creditors' meeting; (c) the nominee (or his replacement under section 20K(3)); and (d) if the debtor is an undischarged bankrupt, the trustee or the Official Receiver. (3) An application under this section shall not be made after the end of the period of 28 days beginning with the day on which the report of the creditors' meeting was made to the court under section 20G. (4) Where on an application under this section the court is satisfied as to either of the grounds mentioned in subsection (1), it may do one or both of the following- (a) revoke or suspend any approval given by the meeting; (b) give a direction to any person for the summoning of a further meeting of the debtor's creditors to consider any revised proposal he may make or, in a case falling within subsection (1)(b), to reconsider his original proposal. (5) Where at any time after giving a direction under subsection (4)(b) for the summoning of a meeting to consider a revised proposal the court is satisfied that the debtor does not intend to submit such a proposal, the court shall revoke the direction and revoke or suspend any approval given at the previous meeting. (6) Where the court gives a direction under subsection (4)(b), it may also give a direction continuing or, as the case may require, renewing, for such period as may be specified in the direction, the effect in relation to the debtor of any interim order. (7) In any case where the court, on an application made under this section with respect to a creditors' meeting, gives a direction under subsection (4)(b) or revokes or suspends an approval under subsection (4)(a) or (5), the court may give such supplemental directions as it thinks fit and, in particular, directions with respect to- (a) things done since the meeting under any voluntary arrangement approved by the meeting; and (b) such things done since the meeting as could not have been done if an interim order had been in force in relation to the debtor when they were done. (8) Except in pursuance of the preceding provisions of this section, an approval given at a creditors' meeting summoned under section 20E is not invalidated by any irregularity at or in relation to the meeting. (Added 76 of 1996 s. 13) BANKRUPTCY ORDINANCE - SECT 20K Implementation and supervision of approved voluntary arrangement VerDate:01/04/1998 (1) Where a voluntary arrangement approved by a creditors' meeting summoned under section 20E has taken effect and the debtor, any of his creditors or any other interested person is dissatisfied by any act, omission or decision of the nominee, he may apply to the court; and on such an application the court may- (a) confirm, reverse or modify any act or decision of the nominee; (b) give him directions; or (c) make such other order as it thinks fit. (2) The nominee may apply to the court for directions in relation to any particular matter arising under the voluntary arrangement. (3) The court may, whenever- (a) it is expedient to appoint a person to carry out the functions of the nominee; and (b) it is inexpedient, difficult or impracticable for an appointment to be made without the assistance of the court, make an order appointing a person who is experienced in insolvency matters, either in substitution for the existing nominee or to fill a vacancy. (Added 76 of 1996 s. 13) BANKRUPTCY ORDINANCE - SECT 20L Default in connection with voluntary arrangement VerDate:01/04/1998 (1) The court shall not make a bankruptcy order on a petition under section 3(1)(c) (nominee of, or person bound by, voluntary arrangement proposed and approved) unless it is satisfied- (a) that the debtor has failed to comply with his obligations under the voluntary arrangement; or (b) that information which was false or misleading in any material particular or which contained material omissions- (i) was contained in any statement of affairs or other document supplied by the debtor under sections 20 to 20K to any person; or <* Note - Exp. X-Ref.: Sections 20, 20A, 20B, 20C, 20D, 20E, 20F, 20G, 20H, 20I, 20J, 20K *> (ii) was otherwise made available by the debtor to his creditors at or in connection with a meeting summoned under those sections; or (c) that the debtor has failed to do all such things as may for the purposes of the voluntary arrangement have been reasonably required of him by the nominee of the arrangement. (2) Where a bankruptcy order is made on a petition under section 3(1)(c), any expenses properly incurred as expenses of the administration of the voluntary arrangement in question shall be a first charge on the bankrupt's estate. (Added 76 of 1996 s. 13) BANKRUPTCY ORDINANCE - SECT 21 (Repealed 76 of 1996 s. 13) VerDate:01/04/1998 BANKRUPTCY ORDINANCE - SECT 21 Effect of composition or scheme VerDate:30/06/1997 Notwithstanding the acceptance and approval of a composition or scheme, the composition or scheme shall not be binding on any creditor so far as regards a debt or liability from which under the provisions of this Ordinance the debtor would not be released by an order of discharge in bankruptcy, unless the creditor assents to the composition or scheme. [cf. 1914 c.59 s.17 U.K.] BANKRUPTCY ORDINANCE - SECT 22 (Repealed 76 of 1996 s. 13) VerDate:01/04/1998 BANKRUPTCY ORDINANCE - SECT 22 Adjudication of bankruptcy where composition not accepted or not approved VerDate:30/06/1997 Adjudication of bankruptcy (1) Where a receiving order is made against a debtor, then if the creditors at the first meeting or any adjournment thereof by ordinary resolution resolve that the debtor be adjudged bankrupt, or pass no resolution, or if the creditors do not meet, or if a composition or scheme is not approved in pursuance of this Ordinance within 14 days after the conclusion of the examination of the debtor or such further time as the court may allow, the court shall adjudge the debtor bankrupt; and thereupon the property of the bankrupt shall become divisible among his creditors and shall vest in a trustee. (2) Notice of every order adjudging a debtor bankrupt, stating the name, address and description of the bankrupt, the date of the adjudication and the name of the trustee, shall be gazetted and shall be advertised in at least 2 local newspapers, one of which shall be Chinese, or as may be prescribed, and the date of the order shall for the purposes of this Ordinance be the date of the adjudication. (See Form 27) (3) It shall be sufficient that an adjudication order against a firm be made in the firm name without mentioning the names of the partners, and such adjudication order shall affect the joint and separate property of all the partners. (See From 78) [cf. 1914 c. 59 s. 18 U.K.] BANKRUPTCY ORDINANCE - SECT 23 Provisions where person other than Official Receiver is appointed trustee VerDate:10/12/2007 (1) Where in a bankruptcy a person other than the Official Receiver is appointed trustee, that person- (a) shall not be capable of acting as trustee until he has notified his appointment to the Official Receiver and given security as provided in subsection (2)(a) to the satisfaction of the Official Receiver; (b) shall give the Official Receiver such information and such access to and facilities for inspecting the books and documents of the bankrupt, and generally such aid as may be requisite for enabling the Official Receiver to perform his duties under this Ordinance. (Amended 18 of 2005 s. 10) (2) In the case of a trustee other than the Official Receiver, the following provisions as to security shall have effect, namely- (a) the security shall be given to the Official Receiver in such manner as he may from time to time direct; (b) it shall not be necessary that security shall be given in each separate bankruptcy; but security may be given either specially in a particular bankruptcy, or generally, to be available for any bankruptcy in which the person giving security may be appointed, as trustee; (c) the Official Receiver shall fix the amount and nature of such security, and may from time to time, as he thinks fit, either increase or diminish the amount of special or general security which any person has given; (d) the cost of furnishing the required security by a trustee, including any premiums which he may pay to a guarantee society, shall be borne by him personally, and shall not be charged against the assets of the estate as an expense incurred in the bankruptcy. (Replaced 76 of 1996 s. 14) BANKRUPTCY ORDINANCE - SECT 23 Provisions where person other than Official Receiver is appointed trustee VerDate:01/04/1998 (1) Where in a bankruptcy a person other than the Official Receiver is appointed trustee, that person- (a) shall not be capable of acting as trustee until he has notified his appointment to the Official Receiver and given security as provided in subsection (2)(a) to the satisfaction of the Official Receiver; (b) shall give the Official Receiver such information and such access to and facilities for inspecting the books and documents of the bankrupt, and generally such aid as may be requisite for enabling that officer to perform his duties under this Ordinance. (2) In the case of a trustee other than the Official Receiver, the following provisions as to security shall have effect, namely- (a) the security shall be given to the Official Receiver in such manner as he may from time to time direct; (b) it shall not be necessary that security shall be given in each separate bankruptcy; but security may be given either specially in a particular bankruptcy, or generally, to be available for any bankruptcy in which the person giving security may be appointed, as trustee; (c) the Official Receiver shall fix the amount and nature of such security, and may from time to time, as he thinks fit, either increase or diminish the amount of special or general security which any person has given; (d) the cost of furnishing the required security by a trustee, including any premiums which he may pay to a guarantee society, shall be borne by him personally, and shall not be charged against the assets of the estate as an expense incurred in the bankruptcy. (Replaced 76 of 1996 s. 14) BANKRUPTCY ORDINANCE - SECT 23 Appointment of trustee VerDate:30/06/1997 (1) Where a debtor is adjudged bankrupt or the creditors have resolved that he be adjudged bankrupt, the creditors may by ordinary resolution appoint the Official Receiver or some other fit person, whether a creditor or not, to fill the office of trustee of the property of the bankrupt or they may resolve to leave his appointment to the committee of inspection hereinafter mentioned. A person shall be deemed not fit to act as trustee of the property of a bankrupt where he has been previously removed from the office of trustee of a bankrupt's property for misconduct or neglect of duty. (2) The person appointed shall, unless he is the Official Receiver, give such security as the court may direct or as may be prescribed, and the court, if satisfied with the security, shall certify under the hand of the Registrar that his appointment has been duly made, unless the appointment is disapproved by the court on the ground that it has not been made in good faith by a majority in value of the creditors voting, or that the person appointed is not fit to act as trustee, or that his connection with or relation to the bankrupt or his estate or any particular creditor makes it difficult for him to act with impartiality in the interests of the creditors generally. (3) The appointment of a trustee shall take effect as from the date of the certificate. (4) When a debtor is adjudged bankrupt after the first meeting of creditors has been held and a trustee has not been appointed prior to the adjudication, the Official Receiver shall forthwith summon a meeting of creditors for the purpose of appointing a trustee. If no trustee is then appointed by the creditors the court shall on the application of the Official Receiver appoint the Official Receiver or some other fit person to be trustee. [cf. 1914 c.59 s. 19 U.K.] BANKRUPTCY ORDINANCE - SECT 24 Creditors' committee VerDate:01/04/1998 (1) The creditors qualified to vote may at their first or any subsequent meeting, by resolution, appoint a creditors' committee to act with the trustee. (2)-(9) (Repealed 76 of 1996 s. 15) (10) If there be no creditors' committee any act or thing or any direction or permission by this Ordinance authorized or required to be done or given by the committee may be done or given by the court on the application of the trustee. (Amended 76 of 1996 s. 15) [cf. 1914 c. 59 s. 20 U.K.] BANKRUPTCY ORDINANCE - SECT 24 Committee of inspection VerDate:30/06/1997 (1) The creditors qualified to vote may at their first or any subsequent meeting, by resolution, appoint a committee of inspection for the purpose of superintending the administration of the bankrupt's property by the trustee. (2) The committee of inspection shall consist of 2 or more persons, possessing one or other of the following qualifications- (Amended 1 of 1976 s.4) (a) that of being a creditor or the holder of a general proxy or general power of attorney from a creditor: Provided that no creditor and no holder of a general proxy or general power of attorney from a creditor shall be qualified to act as a member of the committee of inspection until the creditor has proved his debt and the proof has been admitted; or (b) that of being a person to whom a creditor intends to give a general proxy or general power of attorney: Provided that no such person shall be qualified to act as a member of the committee of inspection until he holds such a proxy or power of attorney, and until the creditor has proved his debt and the proof has been admitted. (3) The committee of inspection shall meet at such times as they shall from time to time appoint, and failing such appointment, at least once a month, and the trustee or any member of the committee may also call a meeting of the committee as and when he thinks necessary. (4) The committee may act by a majority of their members present at a meeting, but shall not act unless a majority of the committee are present at the meeting. (5) Any member of the committee may resign his office by notice in writing signed by him and delivered to the trustee. (6) If a member of the committee becomes bankrupt, or compounds or arranges with his creditors, or is absent from 5 consecutive meetings of the committee, his office shall thereupon become vacant. (7) Any member of the committee may be removed by an ordinary resolution at any meeting of creditors of which 7 days' notice has been given stating the object of the meeting. (8) On a vacancy occurring in the office of a member of the committee the trustee shall forthwith summon a meeting of creditors for the purpose of filling the vacancy, and the meeting may by resolution appoint another creditor or other person eligible as above to fill the vacancy: (Amended 47 of 1984 s.4) Provided that if the trustee is of the opinion that it is unneces- sary for the vacancy to be filled he may apply to the court and the court may make an order that the vacancy shall not be filled, or shall not be filled except in such circumstances as may be specified in the order. (Added 47 of 1984 s.4) (9) The continuing members of the committee, provided there be not less than 2 such continuing members, may act notwithstanding any vacancy in their body. (Replaced 1 of 1976 s.4) (10) If there be no committee of inspection any act or thing or any direction or permission by this Ordinance authorized or required to be done or given by the committee may be done or given by the court on the application of the trustee. [cf. 1914 c.59 s.20 U.K.] BANKRUPTCY ORDINANCE - SECT 25 (Repealed 76 of 1996 s. 16) VerDate:01/04/1998 BANKRUPTCY ORDINANCE - SECT 25 Power to accept composition or scheme after adjudication VerDate:30/06/1997 (1) Where a debtor is adjudged bankrupt the creditors may, if they think fit, at any time after the adjudication, by a majority in number and three-fourths in value of all the creditors who have proved, resolve to accept a proposal for a composition in satisfaction of the debts due to them under the bankruptcy or for a scheme of arrangement of the bankrupt's affairs, and thereupon the same proceedings shall be taken and the same consequences shall ensue as in the case of a composition or scheme accepted before adjudication. (See Forms 31, 64, 65, 66) (2) If the court approves the composition or scheme it may make an order annulling the bankruptcy and vesting the property of the bankrupt in him or in such other person as the court may appoint, on such terms and subject to such conditions, if any, as the court may declare. (3) If default is made in payment of any instalment due in pursuance of the composition or scheme, or if it appears to the court that the composition or scheme cannot proceed without injustice or undue delay, or that the approval of the court was obtained by fraud, the court may, if it thinks fit, on application by any person interested, adjudge the debtor bankrupt and annul the composition or scheme, but without prejudice to the validity of any sale, disposition or payment duly made or thing duly done under or in pursuance of the composition or scheme. Where a debtor is adjudged bankrupt under this subsection, all debts, provable in other respects, which have been contracted before the date of such adjudication shall be provable in the bankruptcy. [cf. 1914 c.59 s.21 U.K.] BANKRUPTCY ORDINANCE - SECT 26 Duties of debtor as to discovery and realization of property VerDate:01/04/1998 Control over person and property of debtor (1) Every debtor against whom a bankruptcy order is made shall, unless prevented by sickness or other sufficient cause, attend the first meeting of his creditors, and shall submit to such examination and give such information as the meeting may require. (Amended 76 of 1996 s. 73) (2) He shall give such inventory of his property, such list of his creditors and debtors, and of the debts due to and from them respectively, submit to such examination in respect of his property or his creditors, attend such other meetings of his creditors, wait at such times on the Official Receiver, special manager or trustee, execute such powers of attorney, conveyances, deeds and instruments, and generally do all such acts and things in relation to his property and the distribution of the proceeds amongst his creditors, as may be reasonably required by the Official Receiver, special manager or trustee or may be provided by this Ordinance, or be prescribed or be directed by the court by any special order or orders made in reference to any particular case or made on the occasion of any special application by the Official Receiver, special manager, trustee or any creditor or person interested. (3) He shall aid to the utmost of his power in the realization of his property and the distribution of the proceeds among his creditors. (Amended 76 of 1996 s. 17) (4) If a bankrupt wilfully fails to perform the duties imposed on him by this section or to deliver up possession of any part of his property, which is divisible amongst his creditors under this Ordinance and which is for the time being in his possession or under his control, to the Official Receiver or to the trustee or to any person authorized by the court to take possession of it, he shall, in addition to any other punishment to which he may be subject, be guilty of a contempt of court and may be punished accordingly. (Amended 76 of 1996 s. 72) [cf. 1914 c. 59 s. 22 U.K.] BANKRUPTCY ORDINANCE - SECT 26 Duties of debtor as to discovery and realization of property VerDate:30/06/1997 Control over person and property of debtor (1) Every debtor against whom a receiving order is made shall, unless prevented by sickness or other sufficient cause, attend the first meeting of his creditors, and shall submit to such examination and give such information as the meeting may require. (2) He shall give such inventory of his property, such list of his creditors and debtors, and of the debts due to and from them respectively, submit to such examination in respect of his property or his creditors, attend such other meetings of his creditors, wait at such times on the Official Receiver, special manager or trustee, execute such powers of attorney, conveyances, deeds and instruments, and generally do all such acts and things in relation to his property and the distribution of the proceeds amongst his creditors, as may be reasonably required by the Official Receiver, special manager or trustee or may be provided by this Ordinance, or be prescribed or be directed by the court by any special order or orders made in reference to any particular case or made on the occasion of any special application by the Official Receiver, special manager, trustee or any creditor or person interested. (3) He shall, if adjudged bankrupt, aid to the utmost of his power in the realization of his property and the distribution of the proceeds among his creditors. (4) If a debtor wilfully fails to perform the duties imposed on him by this section or to deliver up possession of any part of his property, which is divisible amongst his creditors under this Ordinance and which is for the time being in his possession or under his control, to the Official Receiver or to the trustee or to any person authorized by the court to take possession of it, he shall, in addition to any other punishment to which he may be subject, be guilty of a contempt of court and may be punished accordingly. (See Forms 99, 102, 104) [cf. 1914 c.59 s.22 U.K.] BANKRUPTCY ORDINANCE - SECT 27 Arrest of debtor under certain circumstances VerDate:01/04/1998 (1) The court may, by warrant addressed to any person or persons named therein, cause a debtor to be arrested, and any books, papers, money and goods in his possession or under his control or relating to his affairs to be seized, and him and them to be safely kept as prescribed until such time as the court may order under the following circumstances- (a) if after presentation of a bankruptcy petition by or against him, it appears to the court that there is probable cause for believing that he has absconded, or is about to abscond, with a view of avoiding payment of a debt, or of avoiding service of a bankruptcy petition, or of avoiding appearance to any such petition, or of avoiding examination in respect of his affairs, or of otherwise avoiding, delaying or embarrassing proceedings in bankruptcy against him; (b) if, after presentation of a bankruptcy petition by or against him, it appears to the court that there is probable cause for believing that he is about to dispose of or remove his goods with a view to preventing or delaying possession being taken of them by the Official Receiver or trustee, or that there is probable ground for believing that he has concealed or is about to conceal or destroy any of his goods or any books, documents or writings which might be of use to his creditors in the course of his bankruptcy; (c) if, after service of a bankruptcy petition on him or after a bankruptcy order is made against him he removes any goods in his possession above the value of $50 without the leave of the Official Receiver or trustee; (Amended 37 of 1950 Schedule) (d) if without good cause shown he fails to attend any examination ordered by the court; (e) if there is probable cause for believing that he has committed an offence punishable under this Ordinance. (Amended 76 of 1996 s. 18) (2) No payment or composition made or security given after arrest made under this section shall be exempt from the provisions of this Ordinance relating to unfair preferences. (Amended 76 of 1996 ss. 18 and 73) [cf. 1914 c. 59 s. 23 U.K.] BANKRUPTCY ORDINANCE - SECT 27 Arrest of debtor under certain circumstances VerDate:30/06/1997 (1) The court may, by warrant addressed to any person or persons named therein, cause a debtor to be arrested, and any books, papers, money and goods in his possession or under his control or relating to his affairs to be seized, and him and them to be safely kept as prescribed until such time as the court may order under the following circumstances- (See Forms 109, 110) (a) if, after a bankruptcy notice has been issued under this Ordinance or after presentation of a bankruptcy petition by or against him, it appears to the court that there is probable cause for believing that he has absconded, or is about to abscond, with a view of avoiding payment of the debt in respect of which the bankruptcy notice was issued, or of avoiding service of a bankruptcy petition, or of avoiding appearance to any such petition, or of avoiding examination in respect of his affairs, or of otherwise avoiding, delaying or embarrassing proceedings in bankruptcy against him; (b) if, after presentation of a bankruptcy petition by or against him, it appears to the court that there is probable cause for believing that he is about to dispose of or remove his goods with a view to preventing or delaying possession being taken of them by the Official Receiver or trustee, or that there is probable ground for believing that he has concealed or is about to conceal or destroy any of his goods or any books, documents or writings which might be of use to his creditors in the course of his bankruptcy; (c) if, after service of a bankruptcy petition on him or after a receiving order is made against him he removes any goods in his possession above the value of $50 without the leave of the Official Receiver or trustee; (Amended 37 of 1950 Schedule) (d) if without good cause shown he fails to attend any examination ordered by the court; (e) if there is probable cause for believing that he has committed an offence punishable under this Ordinance: Provided that no arrest upon a bankruptcy notice shall be valid and protected unless the debtor before or at the time of his arrest is served with such bankruptcy notice. (2) No payment or composition made or security given after arrest made under this section shall be exempt from the provisions of this Ordinance relating to fraudulent preferences. [cf. 1914 c.59 s.23 U.K.] BANKRUPTCY ORDINANCE - SECT 28 Re-direction of debtor's telegrams and letters VerDate:01/04/1998 Where a bankruptcy order is made against a bankrupt the court, on the application of the Official Receiver or trustee, may from time to time order that for such time, not exceeding 3 months, as the court thinks fit telegrams and post letters and other postal packets, addressed to the bankrupt at any place or places mentioned in the order for re-direction, shall be re-directed, sent or delivered by the agent of the telegraph organization or the Post-master General, or the officers acting under them, to the Official Receiver or the trustee or otherwise as the court directs, and the same shall be done accordingly. (Amended 76 of 1996 ss. 72 and 73) [cf. 1914 c. 59 s. 24 U.K.] BANKRUPTCY ORDINANCE - SECT 28 Re-direction of debtor's telegrams and letters VerDate:30/06/1997 Where a receiving order is made against a debtor the court, on the application of the Official Receiver or trustee, may from time to time order that for such time, not exceeding 3 months, as the court thinks fit telegrams and post letters and other postal packets, addressed to the debtor at any place or places mentioned in the order for re-direction, shall be re-directed, sent or delivered by the agent of the telegraph organization or the Post-master General, or the officers acting under them, to the Official Receiver or the trustee or otherwise as the court directs, and the same shall be done accordingly. (See Form 111) [cf. 1914 c.59 s.24 U.K.] BANKRUPTCY ORDINANCE - SECT 29 Inquiry as to bankrupt's conduct, dealings and property VerDate:01/04/1998 (1) The court may, on the application of the Official Receiver or trustee, at any time after a bankruptcy order has been made against a bankrupt summon before it the bankrupt or his spouse, or any person known or suspected to have in his possession any of the estate or effects belonging to the bankrupt or supposed to be indebted to the bankrupt, or any person whom the court may deem capable of giving information respecting the bankrupt, his dealings or property, and the court may require any such person to produce any documents in his custody or power relating to the bankrupt, his dealings or property. (Amended 76 of 1996 ss. 71, 72 and 73) (1A) The court may require a person referred to in subsection (1), other than the bankrupt, to submit an affidavit to the court containing an account of his dealings with the bankrupt or to produce any documents in his possession or under his control relating to the bankrupt or the bankrupt's dealings, affairs or property. (Added 76 of 1996 s. 19) (2) If any person so summoned, after having been tendered a reasonable sum, refuses to come before the court at the time appointed, or refuses to produce any such document, having no lawful impediment made known to the court at the time of its sitting and allowed by it, the court may, by warrant, cause him to be apprehended and brought up for examination. (3) The court may, by itself or by a commissioner appointed for the purpose, examine on oath, either by word of mouth or by written interrogatories, any person so brought before it concerning the bankrupt, his dealings or property and any other matter the court considers relevant. (Amended 76 of 1996 ss. 19 and 72) (3A) It shall be the duty of a person examined under subsection (3) to answer all questions that the court may put or allow to be put to him. (Added 76 of 1996 s. 19) (3B) Evidence given on oath under this section shall not be admissible in criminal proceedings other than for perjury by the person who gave it. (Added 76 of 1996 s. 19) (4) If on the examination of any person it appears to the court that he is indebted to the bankrupt, the court may, on the application of the Official Receiver or trustee, order him to pay to the Official Receiver or trustee, at such time and in such manner as to the court seems expedient, the amount admitted or any part thereof, either in full discharge of the whole amount in question or not, as the court thinks fit, with or without costs of the examination. (Amended 76 of 1996 ss. 19 and 72) (5) If on the examination of any person it appears to the court that he has in his possession any property belonging to the bankrupt, the court may, on the application of the Official Receiver or trustee, order him to deliver to the Official Receiver or trustee such property or any part thereof, at such time and in such manner and on such terms as to the court may seem just. (Amended 76 of 1996 ss. 19 and 72) (6) The court may, if it thinks fit, order that any person who if in Hong Kong would be liable to be brought before it under this section shall be examined in any place out of Hong Kong by a commissioner appointed for the purpose. (Amended 47 of 1984 s. 16) (7) In the case of the death of the bankrupt or his spouse or of any other witness whose evidence has been duly taken 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 in all legal proceedings be admitted as evidence of the matters therein deposed to, saving all just exceptions. (Amended 76 of 1996 ss. 71 and 72) [cf. 1914 c. 59 s. 25 U.K.] BANKRUPTCY ORDINANCE - SECT 29 Inquiry as to debtor's conduct, dealings an property VerDate:30/06/1997 (1) The court may, on the application of the Official Receiver or trustee, at any time after a receiving order has been made against a debtor summon before it the debtor or his wife, or any person known or suspected to have in his possession any of the estate or effects belonging to the debtor or supposed to be indebted to the debtor, or any person whom the court may deem capable of giving information respecting the debtor, his dealings or property, and the court may require any such person to produce any documents in his custody or power relating to the debtor, his dealings or property. (See Form 112) (2) If any person so summoned, after having been tendered a reasonable sum, refuses to come before the court at the time appointed, or refuses to produce any such document, having no lawful impediment made known to the court at the time of its sitting and allowed by it, the court may, by warrant, cause him to be apprehended and brought up for examination. (See Form 115, 116) (3) The court may, by itself or by a commissioner appointed for the purpose, examine on oath, either by word of mouth or by written interrogatories, any person so brought before it concerning the debtor, his dealings or property. (4) If any person on examination before the court admits that he is indebted to the debtor, the court may, on the application of the Official Receiver or trustee, order him to pay to the Official Receiver or trustee, at such time and in such manner as to the court seems expedient, the amount admitted or any part thereof, either in full discharge of the whole amount in question or not, as the court thinks fit, with or without costs of the examination. (See Forms 113, 114) (5) If any person on examination before the court admits that he has in his possession any property belonging to the debtor, the court may, on the application of the Official Receiver or trustee, order him to deliver to the Official Receiver or trustee such property or any part thereof, at such time and in such manner and on such terms as to the court may seem just. (6) The court may, if it thinks fit, order that any person who if in Hong Kong would be liable to be brought before it under this section shall be examined in any place out of Hong Kong by a commissioner appointed for the purpose. (Amended 47 of 1984 s. 16) (7) In the case of the death of the debtor or his wife or of any other witness whose evidence has been duly taken 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 in all legal proceedings be admitted as evidence of the matters therein deposed to, saving all just exceptions. [cf. 1914 c. 59 s. 25 U.K.] BANKRUPTCY ORDINANCE - SECT 30 Commencement and continuance of bankruptcy VerDate:01/04/1998 The bankruptcy of a person against whom a bankruptcy order has been made- (a) commences with the day on which the order is made; and (b) continues until he is discharged under section 30A or 30B. (Replaced 76 of 1996 s. 20) BANKRUPTCY ORDINANCE - SECT 30 Discharge of bankrupt VerDate:30/06/1997 (1) A bankrupt may, at any time after being adjudged bankrupt, apply to the court for an order of discharge, and the court shall appoint a day for hearing the application, but the application shall not be heard until the public examination of the bankrupt is concluded, or dispensed with under section 19A. The application shall, except when the court in accordance with rules under this Ordinance otherwise directs, be heard in open court. (Amended 1 of 1976 s.5) (2) Where the bankrupt does not of his own accord, within such time as the court may deem reasonable, apply for his discharge, the court may, of its own motion or on the application of the Official Receiver or the trustee or any creditor who has proved, make an order calling upon the bankrupt to come up for his discharge on a day to be fixed by the court, and on due service of the order, if the bankrupt does not appear on the day fixed thereby, the court may make such order as it thinks fit, subject to the provisions of this section, and the debtor shall, in addition to any other punishment to which he may be subject, be guilty of a contempt of court and may be punished accordingly. (3) On the hearing of the application, or on the day on which the bankrupt has been ordered to come up for his discharge or any subsequent day, the court shall take into consideration a report of the Official Receiver as to the bankrupt's conduct and affairs (including a report as to the bankrupt's conduct during the proceedings under his bankruptcy) and may either grant or refuse any absolute order of discharge, or suspend the operation of the order for a specified time, or grant an order of discharge subject to any conditions with respect to any earnings or income which may afterwards become due to the bankrupt or with respect to his after acquired property: Provided that where the bankrupt has committed any indictable offence under this Ordinance or any other indictable offence connected with his bankruptcy, or where in any case any of the facts hereinafter mentioned are proved the court shall- (Amended 50 of 1991 s. 4) [cf. 1926 c. 7 s. 1(1)(a) U.K.] (a) refuse the discharge; or (b) suspend the discharge for such period as the court thinks proper; or [cf. 1926 c.7 s.1(1)(b) U.K.] (c) suspend the discharge until a dividend of not less than 50 per cent has been paid to the creditors; or (d) require the bankrupt as a condition of his discharge to consent to judgment being entered against him by the Official Receiver or trustee for any balance or part of any balance of the debts provable under the bankruptcy which is not satisfied at the date of the discharge, such balance or part of any balance of the debts to be paid out of the future earnings or after acquired property of the bankrupt in such manner and subject to such conditions as the court may direct; but execution shall not be issued on the judgment without leave of the court, which leave may be given on proof that the bankrupt has since his discharge acquired property or income available towards payment of his debts: Provided that, if at any time after the expiration of 2 years from the date of any order made under this section the bankrupt satisfies the court that there is no reasonable probability of his being in a position to comply with the terms of such order, the court may modify the terms of the order or of any substituted order in such manner and upon such conditions as it may think fit. (4) The facts hereinbefore referred to are- (a) that the bankrupt's assets are not of a value equal to 50 per cent of his unsecured liabilities, unless he satisfies the court that the fact that the assets are not of a value of 50 per cent of his unsecured liabilities has arisen from circumstances for which he cannot justly be held responsible; (b) that the bankrupt has omitted to keep such books of account as are usual and proper in the business carried on by him and as sufficiently disclose his business transactions and financial position within the 3 years immediately preceding his bankruptcy, or in the case of a firm carrying on business under a Chinese firm name, that a partnership book has not been kept, or that such books have not been available for the trustee during the bankruptcy proceedings, unless they have been accidentally lost or destroyed, the onus of proof of such accidental loss or destruction being on the bankrupt; (c) that the bankrupt has continued to trade after knowing himself to be insolvent; (d) that the bankrupt has contracted any debt provable in the bankruptcy without having at the time of contracting it any reasonable or probable ground of expectation (proof whereof shall lie on him) of being able to pay it; (e) that the bankrupt has failed to account satisfactorily for any loss of assets or for any deficiency of assets to meet his liabilities; (f) that the bankrupt has brought on or contributed to his bankruptcy by rash and hazardous speculations, or by unjustifiable extravagance in living, or by gambling, or by culpable neglect of his business affairs; (g) that the bankrupt has put any of his creditors to unnecessary expense by a frivolous or vexatious defence to any action properly brought against him; (h) that the bankrupt has brought on or contributed to his bankruptcy by incurring unjustifiable expense by bringing a frivolous or vexatious action; [cf. 1926 c.7 s.1(2) U.K.] (i) that the bankrupt has within 3 months preceding the date of the receiving order, when unable to pay his debts as they become due, given an undue preference to any of his creditors; (j) that the bankrupt has within 3 months preceding the date of the receiving order incurred liabilities with a view to making his assets equal to 50 per cent of his unsecured liabilities; (k) that the bankrupt has on any previous occasion, whether in Hong Kong or elsewhere, been adjudged bankrupt or made a composition or arrangement with his creditors; (Amended 47 of 1984 s.16) (l) that the bankrupt has been guilty of any fraud or fraudulent breach of trust. (5) The court may, on proof to its satisfaction of any of the facts mentioned in subsection (4)(b), (c), (d), (f), (g), (h), (i) or (l), summarily sentence the bankrupt to imprisonment for 1 year. (6) For the purposes of this section, bankrupt's assets shall be deemed of a value equal to 50 per cent of his unsecured liabilities when the court is satisfied that the property of the bankrupt has realized or is likely to realize, or with due care in realization might have realized, an amount equal to 50 per cent of his unsecured liabilities, and a report by the Official Receiver or the trustee shall be prima facie evidence of the amount of such liabilities. (7) For the purposes of this section, the report of the Official Receiver shall be prima facie evidence of the statements therein contained. (8) Notice of the appointment by the court of the day for hearing the application for discharge shall be published as the court may direct or as may be prescribed and shall be sent 14 days at least before the day so appointed to each creditor who has proved, and the court may hear the Official Receiver and the trustee and may also hear any creditor. At the hearing the court may put such questions to the debtor and receive such evidence as it may think fit. (9) The powers of suspending and of attaching conditions to a bankrupt's discharge may be exercised concurrently. (10) A discharged bankrupt shall, notwithstanding his discharge, give such assistance as the trustee may require in the realization and distribution of such of his property as is vested in the trustee, and if he fails to do so he shall be guilty of a contempt of court; and the court may also, if it thinks fit, revoke his discharge, but without prejudice to the validity of any sale, disposition or payment duly made or thing duly done subsequent to the discharge but before its revocation. (See Forms 81 to 90) [cf. 1914 c.59 s.26 U.K.] BANKRUPTCY ORDINANCE - SECT 30A Discharge from bankruptcy VerDate:01/04/1998 (1) Subject to this section, a bankrupt is discharged from bankruptcy by the expiration of the relevant period under this section. (2) The relevant period referred to in subsection (1) is as follows- (a) where a person has not previously been adjudged bankrupt, the period of 4 years; (b) where a person has been previously adjudged bankrupt, the period of 5 years, beginning with the commencement of the bankruptcy. (3) Where the court is satisfied on the application of the trustee or one of the bankrupt's creditors that a valid objection based on one or more of the grounds set out in subsection (4) has been made, the court may order that the relevant period under this section shall cease to run for such period, not exceeding, in the case of a person who- (a) has not previously been adjudged bankrupt, 4 years; or (b) has previously been adjudged bankrupt, 3 years, as may be specified in the order. (4) The grounds on which an objection can be made to the discharge of a bankrupt under this section are as follows- (a) in the case of a discharge to which subsection (2)(a) applies, that the bankrupt is likely within 5 years of the commencement of the bankruptcy to be able to make a significant contribution to his estate; (b) that the discharge of the bankrupt would prejudice the administration of his estate; (c) that the bankrupt has failed to co-operate in the administration of his estate; (d) that the conduct of the bankrupt, either in respect of the period before or the period after the commencement of the bankruptcy, has been unsatisfactory; (e) without limiting paragraph (c) or (d), that the bankrupt has departed from Hong Kong and has failed forthwith to return to Hong Kong following a request to do so from the Official Receiver or the trustee; (f) that the bankrupt has continued to trade after knowing himself to be insolvent; (g) that the bankrupt has committed an offence under section 129 or any of sections 131 to 136; <* Note - Exp. X-Ref.: Sections 131, 132, 133, 134, 135, 136 *> (h) that the bankrupt has failed to prepare an annual report of his earnings and acquisitions for the trustee. (5) Not less than 3 months before the end of the relevant period under this section, the trustee shall- (a) send a notice by ordinary mail to the last known address of each proving creditor; or (b) publish a notice in English and Chinese, respectively, in an English and a Chinese newspaper circulating in Hong Kong, advising the creditors that- (i) the bankrupt will, in the absence of an objection, be discharged; (ii) the trustee does or does not intend to object to the discharge and, where he does intend to do so, giving the grounds of the objection; (iii) each of them has a right to object to the discharge and giving the grounds on which an objection can be based and the procedure for making an objection. (6) Where the trustee or a creditor objects to the discharge of a bankrupt, he shall- (a) notify the court; and (b) in the case of a creditor, also notify the trustee, not less than 14 days before the end of the relevant period under this section, stating the grounds of his objection and applying for an order under subsection (3). (7) Where the court has suspended the running of the relevant period under subsection (3), the bankrupt may, at any time, apply to have the suspension lifted and the court may, having regard to the interests of all the parties, lift the suspension or shorten the period during which it will operate. (8) Where a bankrupt has been discharged, he shall, notwithstanding his discharge- (a) continue to give such information respecting his affairs; and (b) attend on the trustee at such times, and do such other things, as the trustee requires for the purpose of completing the administration of the estate, and if a discharged bankrupt does not comply with the requirements of this subsection, he shall be guilty of a contempt of court and may be punished accordingly on the application of the trustee. (9) Where the court grants a discharge under this section, it may, as a condition of granting the discharge, order the bankrupt to continue to make contributions to his estate in such amount and for such period as it considers appropriate but not exceeding a period of 8 years from the date the bankruptcy order was made. (10) Notwithstanding subsections (1) to (3), where a bankrupt- (a) has, before the commencement of the bankruptcy, left Hong Kong and has not returned to Hong Kong, the relevant period under subsection (1) shall not commence to run until such time as he returns to Hong Kong and notifies the trustee of his return; (b) after the commencement of his bankruptcy- (i) leaves Hong Kong without notifying the trustee of his itinerary and where he can be contacted; or (ii) fails to return to Hong Kong on a date or within a period specified by the trustee, the relevant period under subsection (1) shall not continue to run during the period he is absent from Hong Kong and until he notifies the trustee of his return. (11) This section is without prejudice to any power of the court to annul a bankruptcy order. (Added 76 of 1996 s. 20) BANKRUPTCY ORDINANCE - SECT 30B Early discharge of bankrupt VerDate:01/04/1998 (1) Notwithstanding that the relevant period under section 30A has not yet expired, a bankrupt who- (a) has not previously been adjudged bankrupt may, at any time; or (b) has been previously adjudged bankrupt may, not less than 3 years after the date of the bankruptcy order, apply to the court for an order discharging him from bankruptcy. (2) The court shall not make an order under this section if the bankrupt- (a) has previously entered into- (i) a composition or scheme of arrangement under this Ordinance, as it existed before the Bankruptcy (Amendment) Ordinance 1996 (76 of 1996) came into operation; or (ii) a voluntary arrangement; (b) has unsecured liabilities that exceed 150% of the income that the trustee determines was derived by the bankrupt during the year immediately before the date of the bankruptcy order; (c) has failed to disclose a beneficial interest in any property; (d) has failed to disclose any liability that existed at the date of the bankruptcy order; (e) has failed to disclose in his statement of affairs income that he expected in the 12 months following the filing of the statement; (f) has engaged, after the date of the bankruptcy order, in misleading conduct in relation to a person in respect of an amount or amounts exceeding $15000; (g) has after the date of the bankruptcy order continued to act as a director or taken part in the management of a company, except with the leave of the court, contrary to section 156 of the Companies Ordinance (Cap 32); (h) has failed or refused to give his passport or other travel document to the trustee when requested to do so; (i) has failed to co-operate with the trustee. (3) A bankrupt shall give notice to the trustee of an application under this section at least 28 days before the date of the hearing and the trustee shall advise each creditor of the application. (4) The trustee or a creditor may object to the discharge of the bankrupt on one or more of the grounds set out in section 30A(4) and the court may decline to make an order discharging the bankrupt if it is satisfied that the objection is valid. (5) Section 30A(8) and (9) applies to a discharge under this section. (Added 76 of 1996 s. 20) BANKRUPTCY ORDINANCE - SECT 30C Bankruptcy order made before sections 30 to 30B come into operation VerDate:01/04/1998 (1) Subject to subsection (2), sections 30 to 30B apply to a bankruptcy order made before those sections come into operation in respect of which no order to discharge the bankrupt has been made. <* Note - Exp. X-Ref.: Sections 30, 30A, 30B *> (2) Where a bankrupt- (a) has not previously been adjudged bankrupt and the bankruptcy order was made not less than 42 months; or (Amended 80 of 1997 s. 101) (b) has previously been adjudged bankrupt and the current bankruptcy order was made not less than 54 months, (Amended 80 of 1997 s. 101) before sections 30 to 30B came into operation, he shall be deemed to be discharged from bankruptcy 12 months after the day this section comes into operation unless, during that 12 month period, the trustee or a creditor files an objection on a ground set forth in section 30A(4)(a) to (h), in which case section 30A applies and the court shall deal with the matter as it sees fit. <* Note - Exp. X-Ref.: Sections 30, 30A, 30B *> (Added 76 of 1996 s. 20) BANKRUPTCY ORDINANCE - SECT 30D Order for production of documents by Commissioner of Inland Revenue VerDate:08/09/2004 (1) For the purposes of an examination under section 29, the court may, on the application of the trustee where the trustee is- (a) the Official Receiver; or (b) a certified public accountant as defined in the Professional Accountants Ordinance (Cap 50) or a solicitor, (Amended 23 of 2004 s. 56) order the Commissioner of Inland Revenue to produce to the court- (i) any return, account or accounts submitted (whether before or after the commencement of the bankruptcy) by the bankrupt to any inland revenue official; (ii) any assessment or determination made (whether before or after the commencement of the bankruptcy) in relation to the bankrupt by any inland revenue official; or (iii) any correspondence (whether before or after the commencement of the bankruptcy) between the bankrupt and any inland revenue official. (2) Notwithstanding any other Ordinance, the Commissioner of Inland Revenue shall, within 21 days of the order being made by the court- (a) produce the document in such form as is acceptable to the court; or (b) apply to the court for the discharge or variation of the order. (3) Where the court has made an order under subsection (1) for the purposes of any examination or proceedings, the court may, at any time after the document to which the order relates is produced to it, by order authorize the disclosure of the document, or of any part of its contents, to the trustee. (4) The trustee shall not disclose to any other person the contents of a document disclosed to him by order of the court under this section unless they are disclosed as part of an examination under section 29. (5) For the avoidance of doubt, no creditor or member of a creditors' committee is entitled to see the contents of a document disclosed to a trustee under this section. (Added 76 of 1996 s. 21) BANKRUPTCY ORDINANCE - SECT 30D Order for production of documents by Commissioner of Inland Revenue VerDate:01/04/1998 (1) For the purposes of an examination under section 29, the court may, on the application of the trustee where the trustee is- (a) the Official Receiver; or (b) a professional accountant as defined in the Professional Accountants Ordinance (Cap 50) or a solicitor, order the Commissioner of Inland Revenue to produce to the court- (i) any return, account or accounts submitted (whether before or after the commencement of the bankruptcy) by the bankrupt to any inland revenue official; (ii) any assessment or determination made (whether before or after the commencement of the bankruptcy) in relation to the bankrupt by any inland revenue official; or (iii) any correspondence (whether before or after the commencement of the bankruptcy) between the bankrupt and any inland revenue official. (2) Notwithstanding any other Ordinance, the Commissioner of Inland Revenue shall, within 21 days of the order being made by the court- (a) produce the document in such form as is acceptable to the court; or (b) apply to the court for the discharge or variation of the order. (3) Where the court has made an order under subsection (1) for the purposes of any examination or proceedings, the court may, at any time after the document to which the order relates is produced to it, by order authorize the disclosure of the document, or of any part of its contents, to the trustee. (4) The trustee shall not disclose to any other person the contents of a document disclosed to him by order of the court under this section unless they are disclosed as part of an examination under section 29. (5) For the avoidance of doubt, no creditor or member of a creditors' committee is entitled to see the contents of a document disclosed to a trustee under this section. (Added 76 of 1996 s. 21) BANKRUPTCY ORDINANCE - SECT 30E Supplies of gas, water, electricity, etc. VerDate:16/06/2000 (1) This section applies where on any day ("the relevant day")- (a) a bankruptcy order is made against a debtor; or (b) a voluntary arrangement proposed by a debtor is approved at a meeting summoned under section 20E, and in this section "the office-holder" (負責人) means the Official Receiver or the trustee, as the case may be, or, in the case of a voluntary arrangement, the nominee. (2) If a request falling within subsection (3) is made for the giving after the relevant day of any of the supplies mentioned in subsection (4), the supplier may make it a condition of the giving of the supply that the office-holder personally guarantees the payment of any charges in respect of the supply, but the supplier shall not, directly or indirectly, make it a condition of the giving of the supply that any outstanding charges in respect of a supply given to the debtor before the relevant day are paid. (3) A request falls within this subsection if it is made- (a) by or with the concurrence of the office-holder; and (b) for the purposes of any business which is or has been carried on by the debtor, by a firm or partnership of which the debtor is or was a member, or by an agent or manager for the debtor or for such a firm or partnership. (4) The supplies referred to in subsection (2) are- (a) a public supply of gas; (b) a public supply of electricity; (c) a supply of water under the Waterworks Ordinance (Cap 102); (d) a supply of telecommunications services by a public telecommunications operator licensed under the Telecommunications Ordinance (Cap 106). (Amended 36 of 2000 s. 28) (Added 76 of 1996 s. 21) "the office-holder" (負責人) BANKRUPTCY ORDINANCE - SECT 30E Supplies of gas, water, electricity, etc. VerDate:01/04/1998 (1) This section applies where on any day ("the relevant day")- (a) a bankruptcy order is made against a debtor; or (b) a voluntary arrangement proposed by a debtor is approved at a meeting summoned under section 20E, and in this section "the office-holder" (負責人) means the Official Receiver or the trustee, as the case may be, or, in the case of a voluntary arrangement, the nominee. (2) If a request falling within subsection (3) is made for the giving after the relevant day of any of the supplies mentioned in subsection (4), the supplier may make it a condition of the giving of the supply that the office-holder personally guarantees the payment of any charges in respect of the supply, but the supplier shall not, directly or indirectly, make it a condition of the giving of the supply that any outstanding charges in respect of a supply given to the debtor before the relevant day are paid. (3) A request falls within this subsection if it is made- (a) by or with the concurrence of the office-holder; and (b) for the purposes of any business which is or has been carried on by the debtor, by a firm or partnership of which the debtor is or was a member, or by an agent or manager for the debtor or for such a firm or partnership. (4) The supplies referred to in subsection (2) are- (a) a public supply of gas; (b) a public supply of electricity; (c) a supply of water under the Waterworks Ordinance (Cap 102); (d) a supply of telecommunication services by a public telecommunications operator licensed under the Telecommunication Ordinance (Cap 106). (Added 76 of 1996 s. 21) "the office-holder" (負責人) BANKRUPTCY ORDINANCE - SECT 31 (Repealed 76 of 1996 s. 22) VerDate:01/04/1998 BANKRUPTCY ORDINANCE - SECT 31 Fraudulent settlements VerDate:30/06/1997 In either of the following cases, that is to say- (a) in the case of a settlement made before and in consideration of marriage where the settlor is not at the time of making the settlement able to pay all his debts without the aid of the property comprised in the settlement; or (b) in the case of any covenant or contract made in consideration of marriage for the future settlement on or for the settlor's wife or children of any money or property wherein he had not at the date of his marriage any estate or interest (not being money or property of or in right of his wife), if the settlor is adjudged bankrupt or compounds or arranges with his creditors and it appears to the court that such settlement, covenant or contract was made in order to defeat or delay creditors, or was unjustifiable having regard to the state of the settlor's affairs at the time when it was made, the court may refuse or suspend an order of discharge or grant an order subject to conditions or refuse to approve a composition or arrangement, as the case may be, in like manner as in cases where the debtor has been guilty of fraud. (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule; 20 of 1948 s.4) [cf. 1914 c.59 s.27 U.K.] BANKRUPTCY ORDINANCE - SECT 32 Effect of order of discharge VerDate:01/04/1998 (1) An order of discharge shall not release the bankrupt- (a) (Repealed 76 of 1996 s. 23) (aa) from any liability to pay any amount under a confiscation order made under the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap 405) or under an external confiscation order registered under that Ordinance; or (Added 35 of 1989 s. 32. Amended L.N. 19 of 1991) (b) (Repealed 76 of 1996 s. 23) (2) Subject to subsections (1) and (3) to (8), where a bankrupt is discharged, the discharge releases him from all the bankruptcy debts, but has no effect- (a) on the functions (so far as they remain to be carried out) of the trustee and the operation of the provisions of this Ordinance for the purposes of carrying out those functions; or (b) on the liability of the discharged bankrupt to make continuing contributions to his estate pursuant to an order made under section 30A(9). (Replaced 76 of 1996 s. 23) (3) Discharge does not affect the right of any secured creditor of the bankrupt to enforce his security for the payment of a debt from which the bankrupt is released. (Replaced 76 of 1996 s. 23) (4) An order of discharge shall not release the bankrupt from any debt or liability incurred by means of any fraud or fraudulent breach of trust to which he was a party, or from any debt or liability whereof he has obtained forbearance by any fraud to which he was a party. (Replaced 76 of 1996 s. 23) (5) Discharge does not release the bankrupt from any liability in respect of a fine imposed for an offence or from any liability under a recognizance except, in the case of a penalty imposed for an offence under an enactment relating to the public revenue or of a recognizance, with the consent of the Financial Secretary. (Added 76 of 1996 s. 23) (6) Discharge does not, except to such extent and on such conditions as the court may direct, release the bankrupt from any bankruptcy debt which consists in a liability to pay damages for negligence, nuisance or breach of a statutory, contractual or other duty being damages in respect of personal injuries to any person. (Added 76 of 1996 s. 23) (7) Discharge does not release the bankrupt from such other bankruptcy debts, not being debts provable in his bankruptcy, as may be prescribed. (Added 76 of 1996 s. 23) (8) Discharge does not release any person other than the bankrupt from any liability (whether as partner or co-trustee of the bankrupt or otherwise) from which the bankrupt is released by the discharge, or from any liability as surety for the bankrupt or as a person in the nature of such a surety. (Added 76 of 1996 s. 23) [cf. 1914 c. 59 s. 28 U.K.] BANKRUPTCY ORDINANCE - SECT 32 Effect of order of discharge VerDate:30/06/1997 (1) An order of discharge shall not release the bankrupt- (a) from any debt on a recognizance nor from any debt with which the bankrupt may be chargeable at the suit of the Crown or of any person for any offence against a statute relating to any branch of the public revenue, or at the suit of any public officer on a bail bond entered into for the appearance of any person prosecuted for any such offence, and he shall not be discharged from such excepted debts unless the Financial Secretary certifies in writing his consent to his being discharged therefrom; or (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule) (aa) from any liability to pay any amount under a confiscation order made under the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405) or under an external confiscation order registered under that Ordinance; or (Added 35 of 1989 s. 32. Amended L.N. 19 of 1991) (b) from any debt or liability incurred by means of any fraud or fraudulent breach of trust to which he was a party, or from any debt or liability whereof he has obtained forbearance by any fraud to which he was a party. (2) An order of discharge shall release the bankrupt from all other debts provable in bankruptcy. (3) An order of discharge shall be conclusive evidence of the bankruptcy and of the validity of the proceedings therein, and in any proceedings that may be instituted against a bankrupt who has obtained an order of discharge in respect of any debt from which he is released by the order, the bankrupt may plead that the cause of action occurred before his discharge. (4) An order of discharge shall not release any person who at the date of the receiving order was a partner or co-trustee with the bankrupt or was jointly bound or had made any joint contract with him, or any person who was surety or in the nature of a surety for him. [cf. 1914 c. 59 s. 28 U.K.] BANKRUPTCY ORDINANCE - SECT 33 Court's power to annul bankruptcy order VerDate:01/04/1998 (1) The court may annul a bankruptcy order if it at any time appears to the court that- (a) on any grounds existing at the time the order was made, the order ought not to have been made; or (b) to the extent required by the rules, the provable debts and the expenses of the bankruptcy have all, since the making of the order, been either paid or secured to the satisfaction of the court. (2) The court may annul a bankruptcy order made against a debtor on a petition under section 3(1)(a), (b) or (c) if it at any time appears to the court, on an application by the Official Receiver- (a) that the petition was pending at a time when a criminal bankruptcy order was made against the debtor or was presented after such an order was so made; and (b) that no appeal is pending against the debtor's conviction of any offence by virtue of which the criminal bankruptcy order was made, and the court shall annul a bankruptcy order made on a petition under section 3(1)(d) if it at any time appears to the court that the criminal bankruptcy order on which the petition was based has been rescinded in consequence of an appeal. (3) The court may annul a bankruptcy order whether or not the bankrupt has been discharged from the bankruptcy. (4) Where the court annuls a bankruptcy order under this section or section 20I, any sale or other disposition of property, payment made or other thing duly done by or under the authority of the Official Receiver, a nominee or a trustee or by the court is valid, but if any of the bankrupt's estate is then vested in such a trustee, it shall vest in such person as the court may appoint or, in default of any such appointment, revert to the bankrupt on such terms (if any) as the court may direct, and the court may include in its order such supplemental provisions as may be authorized by the rules. (5) Where the court annuls a bankruptcy order under this section or section 20I, the court may make such order as it thinks fit respecting advertising or gazetting of the notice of the annulment and for the costs thereof. (6) Any interested person may apply for annulment of a bankruptcy order with leave of the court. (Replaced 76 of 1996 s. 24) BANKRUPTCY ORDINANCE - SECT 33 Power for court to annul adjudication in certain cases VerDate:30/06/1997 (1) Where in the opinion of the court a debtor ought not to have been adjudged bankrupt, or where it is proved to the satisfaction of the court that the debts of the bankrupt are paid in full, the court may, on the application of any person interested, by order annul the adjudication. (Amended 45 of 1986 s.4) (1A) The court may, on the application of the Official Receiver, by order- (a) rescind a receiving order made against a debtor; or (b) annul an adjudication of bankruptcy made against a bankrupt, if the court is 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 this Ordinance are not and will not be sufficient to pay a dividend of 15 per cent, and that it is desirable in all the circumstances of the case for such order to be made. (Added 45 of 1986 s.4) (2) Where an order is made under this section rescinding a receiving order or annulling an adjudication, all sales and dispositions of property and payments duly made, and all acts theretofore done, by the Official Receiver, trustee or other person acting under their authority, or by the court, shall be valid, but the property of the debtor, if he has been adjudged bankrupt, shall vest in such person as the court may appoint, or in default of any such appointment revert to the debtor for all his estate or interest therein on such terms and subject to such conditions, if any, as the court may declare by order. (Amended 45 of 1986 s.4) (3) Notice of the order rescinding a receiving order or annulling an adjudication shall be forthwith gazetted and shall be advertised in at least 2 local newspapers, one of which shall be Chinese, or as may be prescribed. (Amended 45 of 1986 s.4) (4) For the purposes of this section, any debt disputed by a debtor shall be considered as paid in full if the debtor enters into a bond, in such sum and with such sureties as the court approves, to pay the amount to be recovered in any proceeding for the recovery of or concerning the debt, with costs, and any debt due to a creditor who cannot be found or cannot be identified shall be considered as paid in full if paid into court. [cf. 1914 c.59 s.29 U.K.] BANKRUPTCY ORDINANCE - SECT 34 Description of debts provable in bankruptcy VerDate:01/04/1998 Adaptation amendments retroactively made - see 25 of 1998 s. 2 PART III ADMINISTRATION OF PROPERTY Proof of debts (1) Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, tort, promise or breach of trust shall not be provable in bankruptcy. (Amended 76 of 1996 s. 25) (2) Subject to section 42(5), a person having notice of a petition in bankruptcy shall not prove in bankruptcy for any debt or liability contracted by the bankrupt after the date of his so having notice. (Replaced 76 of 1996 s. 25) (3) Save as aforesaid, all debts and liabilities, present or future, certain or contingent, to which the bankrupt is subject at the date of the bankruptcy order, or to which he may become subject before his discharge by reason of any obligation incurred before the date of the bankruptcy order, including a liability to pay further damages as provided for in section 56A(2)(b) of the High Court Ordinance (Cap 4) (following an award of provisional damages), shall be deemed to be debts provable in bankruptcy. (Amended 40 of 1986 s. 5; 76 of 1996 ss. 72 and 73; 25 of 1998 s. 2) (3A) Notwithstanding subsection (3), a debt owing to the Government in respect of a fine or monetary penalty imposed under an Ordinance shall not be provable in bankruptcy. (Added 76 of 1996 s. 25) (3B) Where a debt provable in bankruptcy is payable in a currency other than Hong Kong dollars, the trustee or, in the case of a voluntary arrangement, the nominee or his replacement under section 20K(3), shall convert the amount of the debt from the foreign currency into Hong Kong dollars at the midpoint between the selling and buying telegraphic transfer rates of exchange quoted by The Hong Kong Association of Banks on the day the bankruptcy order is made or, where no such rates are quoted, at an exchange rate determined by the court. (Added 76 of 1996 s. 25) (3C) The trustee may pay a dividend in respect of a foreign currency claim either in Hong Kong dollars or in the foreign currency equivalent of Hong Kong dollars, and in the latter case he shall determine the foreign currency equivalent using the same conversion method as in subsection (3B) but as of the day of the payment of the dividend. (Added 76 of 1996 s. 25) (4) An estimate shall be made by the trustee of the value of any debt or liability provable as aforesaid which by reason of its being subject to any contingency or contingencies, or for any other reason, does not bear a certain value or, alternatively, the trustee may refer such debt or liability to the court for valuation in which case the court shall establish a value in accordance with subsection (7). (Amended 76 of 1996 s. 25) (5) Any person aggrieved by any estimate made by the trustee as aforesaid may appeal to the court. (6) (Repealed 76 of 1996 s. 25) (7) Where the trustee has referred the question of valuation to it under subsection (4), the court may direct the value to be assessed before the court itself without the intervention of a jury and may give all necessary directions for this purpose. (Amended 76 of 1996 s. 25) (7A) The trustee shall make a decision to- (a) accept; or (b) reject in whole or in part, a proof of debt within- (i) a period, prescribed by the rules, after the proof is filed with him; or (ii) such longer period as the court may on application allow, but this subsection does not apply if there is no reasonable prospect of a dividend being paid to the class of creditor to which the proof of debt relates. (Added 76 of 1996 s. 25) (8) For the purposes of this Ordinance, "liability" (債務) includes- (a) any compensation for work or labour done; (b) any obligation or possibility of an obligation to pay money or money's worth on the breach of any express or implied covenant, contract, agreement or undertaking, whether the breach does or does not occur, or is or is not likely to occur or capable of occurring, before the discharge of the bankrupt; (Amended 76 of 1996 s. 72) (c) generally, any express or implied engagement, agreement or undertaking to pay or capable of resulting in the payment of money or money's worth, whether the payment is, as respects amount, fixed or unliquidated, as respects time, present or future, certain or dependent on any one contingency or on 2 or more contingencies, or, as to mode of valuation, capable of being ascertained by fixed rules or as matter of opinion. [cf. 1914 c. 59 s. 30 U.K.] "liability" (債務) BANKRUPTCY ORDINANCE - SECT 34 Description of debts provable in bankruptcy VerDate:01/07/1997 Adaptation amendments retroactively made - see 25 of 1998 s. 2 PART III ADMINISTRATION OF PROPERTY (1) Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust shall not be provable in bankruptcy. (2) A person having notice of any act of bankruptcy available against the debtor shall not prove in bankruptcy for any debt or liability contracted by the debtor subsequently to the date of his so having notice. (Amended 13 of 1966 Schedule) (3) Save as aforesaid, all debts and liabilities, present or future, certain or contingent, to which the debtor is subject at the date of the receiving order, or to which he may become subject before his discharge by reason of any obligation incurred before the date of the receiving order, including a liability to pay further damages as provided for in section 56A(2)(b) of the High Court Ordinance (Cap 4) (following an award of provisional damages), shall be deemed to be debts provable in bankruptcy. (Amended 40 of 1986 s. 5; 25 of 1998 s. 2) (4) An estimate shall be made by the trustee of the value of any debt or liability provable as aforesaid which by reason of its being subject to any contingency or contingencies, or for any other reason, does not bear a certain value. (5) Any person aggrieved by any estimate made by the trustee as aforesaid may appeal to the court. (6) If in the opinion of the court the value of the debt or liability is incapable of being fairly estimated, the court may make an order to that effect, and thereupon the debt or liability shall, for the purposes of this Ordinance, be deemed to be a debt not provable in bankruptcy. (7) If in the opinion of the court the value of the debt or liability is capable of being fairly estimated, the court may direct the value to be assessed before the court itself without the intervention of a jury and may give all necessary directions for this purpose, and the amount of the value when assessed shall be deemed to be a debt provable in bankruptcy. (8) For the purposes of this Ordinance, "liability" includes- (a) any compensation for work or labour done; (b) any obligation or possibility of an obligation to pay money or money's worth on the breach of any express or implied covenant, contract, agreement or undertaking, whether the breach does or does not occur, or is or is not likely to occur or capable of occurring, before the discharge of the debtor; (c) generally, any express or implied engagement, agreement or undertaking to pay or capable of resulting in the payment of money or money's worth, whether the payment is, as respects amount, fixed or unliquidated, as respects time, present or future, certain or dependent on any one contingency or on 2 or more contingencies, or, as to mode of valuation, capable of being ascertained by fixed rules or as matter of opinion. [cf. 1914 c. 59 s. 30 U.K.] "liability" (債務) BANKRUPTCY ORDINANCE - SECT 34 Description of debts provable in bankruptcy VerDate:30/06/1997 PART III ADMINISTRATION OF PROPERTY (1) Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust shall not be provable in bankruptcy. (2) A person having notice of any act of bankruptcy available against the debtor shall not prove in bankruptcy for any debt or liability contracted by the debtor subsequently to the date of his so having notice. (Amended 13 of 1966 Schedule) (3) Save as aforesaid, all debts and liabilities, present or future, certain or contingent, to which the debtor is subject at the date of the receiving order, or to which he may become subject before his discharge by reason of any obligation incurred before the date of the receiving order, including a liability to pay further damages as provided for in section 56A(2)(b) of the Supreme Court Ordinance (Cap. 4) (following an award of provisional damages), shall be deemed to be debts provable in bankruptcy. (Amended 40 of 1986 s.5) (4) An estimate shall be made by the trustee of the value of any debt or liability provable as aforesaid which by reason of its being subject to any contingency or contingencies, or for any other reason, does not bear a certain value. (5) Any person aggrieved by any estimate made by the trustee as aforesaid may appeal to the court. (6) If in the opinion of the court the value of the debt or liability is incapable of being fairly estimated, the court may make an order to that effect, and thereupon the debt or liability shall, for the purposes of this Ordinance, be deemed to be a debt not provable in bankruptcy. (7) If in the opinion of the court the value of the debt or liability is capable of being fairly estimated, the court may direct the value to be assessed before the court itself without the intervention of a jury and may give all necessary directions for this purpose, and the amount of the value when assessed shall be deemed to be a debt provable in bankruptcy. (8) For the purposes of this Ordinance, "liability" (債務) includes- (a) any compensation for work or labour done; (b) any obligation or possibility of an obligation to pay money or money's worth on the breach of any express or implied covenant, contract, agreement or undertaking, whether the breach does or does not occur, or is or is not likely to occur or capable of occurring, before the discharge of the debtor; (c) generally, any express or implied engagement, agreement or undertaking to pay or capable of resulting in the payment of money or money's worth, whether the payment is, as respects amount, fixed or unliquidated, as respects time, present or future, certain or dependent on any one contingency or on 2 or more contingencies, or, as to mode of valuation, capable of being ascertained by fixed rules or as matter of opinion. [cf. 1914 c. 59 s. 30 U.K.] "liability" (債務) BANKRUPTCY ORDINANCE - SECT 35 Mutual credit and set-off VerDate:01/04/1998 Where there have been mutual credits, mutual debts or other mutual dealings between a bankrupt against whom a bankruptcy order is made under this Ordinance and any other person proving or claiming to prove a debt under the bankruptcy order, an account shall be taken of what is due from the one party to the other in respect of such mutual dealings and the sum due from the one party shall be set off against any sum due from the other party and the balance of the account, and no more, shall be claimed or paid on either side respectively; but a person shall not be entitled under this section to claim the benefit of any set-off against the property of a bankrupt in any case where he had, at the time of giving credit to the bankrupt, notice that the petition had been presented. (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule; 76 of 1996 ss. 26, 72 and 73) [cf. 1914 c. 59 s. 31 U.K.] BANKRUPTCY ORDINANCE - SECT 35 Mutual credit and set-off VerDate:30/06/1997 Where there have been mutual credits, mutual debts or other mutual dealings between a debtor against whom a receiving order is made under this Ordinance and any other person proving or claiming to prove a debt under the receiving order, an account shall be taken of what is due from the one party to the other in respect of such mutual dealings and the sum due from the one party shall be set off against any sum due from the other party and the balance of the account, and no more, shall be claimed or paid on either side respectively; but a person shall not be entitled under this section to claim the benefit of any set-off against the property of a debtor in any case where he had, at the time of giving credit to the debtor, notice of an act of bankruptcy committed by the debtor and available against him. (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule) [cf. 1914 c. 59 s. 31 U.K.] BANKRUPTCY ORDINANCE - SECT 36 Rules as to proof of debts VerDate:30/06/1997 The Chief Justice may, with the approval of the Legislative Council, make rules providing for the mode of proving debts, the right of proof by secured and other creditors, the admission and rejection of proofs, and other matters. (Replaced 33 of 1939; G.N. 840 of 1940 Supp. Schedule) [cf. 1914 c. 59 s. 32 U.K.] BANKRUPTCY ORDINANCE - SECT 37 Priority of costs and charges VerDate:10/12/2007 (1) The assets remaining after payment of the expenses properly incurred in preserving, getting in or realizing any of the assets of the bankrupt shall, subject to any order of the court, first be liable to the following payments, which shall be made in the following order of priority, namely- (Amended 18 of 2005 s. 11) (a) the fees, charges and percentages prescribed in the Bankruptcy (Fees and Percentages) Order (Cap 6 sub. leg. C) and payable to the Official Receiver, and costs, charges and expenses incurred or authorized by, the Official Receiver, whether acting as trustee or otherwise, including the costs of any person properly employed by him; (Replaced 18 of 2005 s. 11) (b) the taxed costs of the petition, including the taxed costs of any person appearing at the hearing of the petition whose costs are allowed by the court but excluding the interest on such costs; (Replaced 18 of 2005 s. 11) (c) the remuneration of, and fees, disbursements and expenses properly incurred by the special manager, if any; (Replaced 18 of 2005 s. 11) (d) the costs and expenses of any person who makes the bankrupt’s statement of affairs; (Replaced 18 of 2005 s. 11) (e) the taxed charges of any shorthand writer appointed to take any examination under this Ordinance, except expenses properly incurred in preserving, getting in or realizing the assets of the bankrupt; (Added 18 of 2005 s. 11) (f) the necessary disbursements of any trustee other than the Official Receiver, except expenses properly incurred in preserving, getting in or realizing the assets of the bankrupt; (Added 18 of 2005 s. 11) (g) the costs of any person properly employed by any trustee other than the Official Receiver; (Added 18 of 2005 s. 11) (h) the remuneration of any trustee other than the Official Receiver; and (Added 18 of 2005 s. 11) (i) the actual out-of-pocket expenses necessarily incurred by the creditors’ committee subject to the approval of the trustee. (Added 18 of 2005 s. 11) (2) Whenever the court is satisfied that property of a bankrupt in respect of whose estate a bankruptcy order has been made has been preserved for the benefit of the creditors by means of legal proceedings brought by a creditor against the bankrupt without notice of presentation of the petition, the court may in its discretion order the payment of the costs of such legal proceedings or any part of them (taxed as between party and party) out of the estate, with the same priority as to payment as is herein provided in respect of the taxed costs of the petitioner. (Amended 76 of 1996 s. 27) (3) For the purposes of subsection (1)(e), if the shorthand writer is appointed or authorized by the Official Receiver, the cost of the shorthand notes shall be regarded as an expense properly incurred in getting in or realizing the assets of the bankrupt. (Added 18 of 2005 s. 11) (Amended 76 of 1996 ss. 72 & 73) BANKRUPTCY ORDINANCE - SECT 37 Priority of costs and charges VerDate:01/04/1998 (1) The assets remaining after payment of the actual expenses incurred in realizing any of the assets of the bankrupt shall, subject to any order of the court, first be liable to the following payments, which shall be made in the following order of priority, namely- (a) the actual expenses incurred by the Official Receiver in protecting or attempting to protect the property or assets of the bankrupt or any part thereof and any expenses or outlay incurred by him or by his authority in carrying on the business of the bankrupt; (b) the fees, percentages and charges payable to, or costs, charges and expenses incurred or authorized by, the Official Receiver, whether acting as Official Receiver or trustee; (c) the remuneration of the special manager, if any; and (d) the taxed costs of the petitioner, so far as the same may not have been disallowed by the court. (2) Whenever the court is satisfied that property of a bankrupt in respect of whose estate a bankruptcy order has been made has been preserved for the benefit of the creditors by means of legal proceedings brought by a creditor against the bankrupt without notice of presentation of the petition, the court may in its discretion order the payment of the costs of such legal proceedings or any part of them (taxed as between party and party) out of the estate, with the same priority as to payment as is herein provided in respect of the taxed costs of the petitioner. (Amended 76 of 1996 s. 27) (Amended 76 of 1996 ss. 72 and 73) BANKRUPTCY ORDINANCE - SECT 37 Priority of costs and charges VerDate:30/06/1997 (1) The assets remaining after payment of the actual expenses incurred in realizing any of the assets of the debtor shall, subject to any order of the court, first be liable to the following payments, which shall be made in the following order of priority, namely- (a) the actual expenses incurred by the Official Receiver in protecting or attempting to protect the property or assets of the debtor or any part thereof and any expenses or outlay incurred by him or by his authority in carrying on the business of the debtor; (b) the fees, percentages and charges payable to, or costs, charges and expenses incurred or authorized by, the Official Receiver, whether acting as Official Receiver or trustee; (c) the remuneration of the special manager, if any; and (d) the taxed costs of the petitioner, so far as the same may not have been disallowed by the court. (2) Whenever the court is satisfied that property of a debtor in respect of whose estate a receiving order has been made has been preserved for the benefit of the creditors by means of legal proceedings brought by a creditor against the debtor without notice of any available act of bankruptcy committed by the debtor, the court may in its discretion order the payment of the costs of such legal proceedings or any part of them (taxed as between party and party) out of the estate, with the same priority as to payment as is herein provided in respect of the taxed costs of the petitioner. BANKRUPTCY ORDINANCE - SECT 38 Priority of debts VerDate:01/12/2000 Adaptation amendments retroactively made - see 18 of 2005 s. 12 (1) In the distribution of the property of a bankrupt there shall be paid in priority to all other debts- (a) (Repealed 47 of 1984 s. 5) (b) any- (i) payment from the Protection of Wages on Insolvency Fund under section 18 of the Protection of Wages on Insolvency Ordinance (Cap 380) to any clerk or servant in respect of wages or salary or both in respect of services rendered to the bankrupt if such payment was made during a period of 4 months before the date of the filing of the petition; and (Amended 48 of 1987 s. 8) (ii) wages and salary (including commission provided that the amount thereof is fixed or ascertainable at the relevant date) of any clerk or servant in respect of services rendered to the bankrupt during a period- (A) beginning 4 months next before the date of the filing of the petition and ending on the making of the bankruptcy order; or (Amended 76 of 1996 s. 73) (B) beginning 4 months next before the last day of service within the meaning of section 16(4) of the Protection of Wages on Insolvency Ordinance (Cap 380) of any clerk or servant who has made an application for an ex gratia payment under section 15(1) of that Ordinance, and ending on that last day of service, (Replaced 68 of 1996 s. 4) whichever is the earlier, not exceeding, together with any payment under sub-paragraph (i), $300; (Replaced 12 of 1985 s. 29(4). Amended 48 of 1987 s. 8) (c) any- (i) payment from the Protection of Wages on Insolvency Fund under section 18 of the Protection of Wages on Insolvency Ordinance (Cap 380) to any labourer or workman in respect of wages, whether payable for time or for piece work, in respect of services rendered to the bankrupt if such payment was made during a period of 4 months before the date of the filing of the petition; and (ii) wages of any labourer or workman, whether payable for time or for piece work, in respect of services rendered to the bankrupt during the period- (A) beginning 4 months next before the date of the filing of the petition and ending on the making of a bankruptcy order; or (Amended 76 of 1996 s. 73) (B) beginning 4 months next before the last day of service within the meaning of section 16(4) of the Protection of Wages on Insolvency Ordinance (Cap 380) of any labourer or workman who has made an application for an ex gratia payment under section 15(1) of that Ordinance, and ending on that last day of service, (Replaced 68 of 1996 s. 4) whichever is the earlier, not exceeding, together with any payment under sub-paragraph (i), $100; (Replaced 12 of 1985 s. 29(4). Amended 48 of 1987 s. 8) (ca) any severance payment payable to an employee under the Employment Ordinance (Cap 57), not exceeding in respect of each employee $6000; (Added 54 of 1974 s. 2) (caa) any long service payment payable to an employee under the Employment Ordinance (Cap 57), not exceeding in respect of each employee $8000; (Added 78 of 1985 s. 2) (cb) any amount due in respect of compensation or liability for compensation under the Employees' Compensation Ordinance (Cap 282) accrued before the date of the bankruptcy order and, where the compensation is a periodical payment, the amount due in respect thereof shall be taken to be the amount of the lump sum for which the periodical payment could, if redeemable, be redeemed on an application being made for that purpose under the Employees' Compensation Ordinance (Cap 282), but this paragraph shall not apply to any amount due in respect of compensation or liability for compensation where the bankrupt has entered into a contract with a person carrying on accident insurance business in Hong Kong in respect of his liability under the Employees' Compensation Ordinance (Cap 282) for personal injury by accident to the employee to whom the compensation or liability for compensation is due; (Added 5 of 1977 s. 2. Amended 47 of 1984 s. 16; 76 of 1996 s. 73) (cc) any wages in lieu of notice payable to an employee under the Employment Ordinance (Cap 57), not exceeding in respect of each employee one month's wages or $2000 whichever is the lesser; (Added 5 of 1977 s. 2) (cd) all accrued holiday remuneration becoming payable to any clerk, servant, workman or labourer (or in the case of his death to any other person in his right) on the termination of his employment before or as a consequence of the bankruptcy order; (Added 47 of 1984 s. 5. Amended 76 of 1996 s. 73) (ce) any payment from the Employees Compensation Assistance Fund under Part IV of the Employees Compensation Assistance Ordinance 1991 (54 of 1991) representing an amount due by the bankrupt in respect of compensation or liability for compensation under the Employees' Compensation Ordinance (Cap 282) accrued before the date of the bankruptcy order; (Added 54 of 1991 s. 47. Amended 76 of 1996 s. 73) (cf) any amount of unpaid contribution or any amount deemed to be unpaid contribution calculated in accordance with rules made under section 73(1)(n) of the Occupational Retirement Schemes Ordinance (Cap 426) which should have been paid by the bankrupt in accordance with the terms of an occupational retirement scheme within the meaning of that Ordinance before the commencement of the bankruptcy: Provided that where such amount exceeds $50000 in respect of an employee, 50% of such part of the amount that exceeds $50000 shall not be paid in priority to all other debts under this subsection; (Added 88 of 1992 s. 83) (cg) (without prejudice to any right or liability under a trust) any amount of salaries deducted by the bankrupt from his employees' salaries for the purpose of making contributions in respect of such employees to the funds of an occupational retirement scheme within the meaning of the Occupational Retirement Schemes Ordinance (Cap 426) which have not been paid into such funds; (Added 88 of 1992 s. 83) (ch) any amount of unpaid contribution under, or any amount of unpaid contribution calculated in accordance with, the Mandatory Provident Fund Schemes Ordinance (Cap 485) which should have been paid by the bankrupt in accordance with the provisions of that Ordinance before the commencement of the bankruptcy: Provided that where such amount exceeds $50000 in respect of an employee, 50% of such part of the amount that exceeds $50000 shall not be paid in priority to all other debts under this subsection; (Added 80 of 1995 s. 49) (ci) any amount deducted by the bankrupt from the relevant income of his relevant employees for the purpose of making contributions in respect of such relevant employees to the approved trustee of a registered scheme within the meaning of the Mandatory Provident Fund Schemes Ordinance (Cap 485) which have not been paid to that approved trustee; (Added 80 of 1995 s. 49) (cj) any sum and interest thereon payable to the Mandatory Provident Fund Schemes Authority under section 17(7) of the Mandatory Provident Fund Schemes Ordinance (Cap 485); (Added 80 of 1995 s. 49) (d) all statutory debts due from the bankrupt to the Crown at the date of the bankruptcy order and which became due and payable within 12 months next before that date. (Replaced 47 of 1984 s. 5. Amended 76 of 1996 s. 73) (2)-(2A) (Repealed 76 of 1996 s. 28) (2B) Where- (a) the date of the receiving order is on or after 1 April 1977; or (b) a bankruptcy order is made on or after the day the Bankruptcy (Amendment) Ordinance 1996 (76 of 1996) comes into operation, the sum of $8000 shall be deemed to be substituted in each case for the sums of $300 and $100 referred to in paragraphs (b) and (c) respectively, and for the sum of $6000 referred to in paragraph (ca), of subsection (1). (Added 5 of 1977 s. 2. Amended 76 of 1996 s. 28) (3) The debts specified in subsection (1)(b), (c), (ca), (caa), (cb), (cc), (cd), (ce), (cf), (cg), (ch), (ci) and (cj)- (Amended 47 of 1984 s. 5; 78 of 1985 s. 2; 54 of 1991 s. 47; 88 of 1992 s. 83; 80 of 1995 s. 49) (a) shall have priority over the debts specified in subsection (1)(d); (b) shall rank equally among themselves; and (c) shall be paid in full unless the property of the bankrupt is insufficient to meet them, in which case they shall abate in equal proportions among themselves. (Replaced 42 of 1970 s. 2. Amended 54 of 1974 s. 2; 5 of 1977 s. 2) (3A) (Repealed 47 of 1984 s. 5) (4) Subject to the provisions contained in section 37 and to the retention of such sums as may be necessary for the costs of administration or otherwise, the foregoing debts shall be discharged forthwith so far as the property of the debtor is sufficient to meet them. (5) In the event of a landlord or other person distraining or having distrained on any goods or effects of a bankrupt within 3 months next before the date of the bankruptcy order the debts to which priority is given by this section shall be a first charge on the goods or effects so distrained on or the proceeds of the sale thereof. (Amended 42 of 1970 s. 2; 76 of 1996 s. 73) (5A) Any money paid under a charge under subsection (5) shall be a debt due from the estate of the bankrupt to the landlord or other person distraining or having distrained, and such debt shall be discharged so far as the property of the bankrupt is sufficient to meet it after payment of the debts specified in subsection (1) but before payment of the other debts proved in the bankruptcy. (Added 42 of 1970 s. 2) (5B) Where any assets have been recovered under an indemnity for costs of litigation given by certain creditors, or have been protected or preserved by the payment of moneys or the giving of indemnity by creditors, or where expenses in relation to which a creditor has indemnified a trustee have been recovered, the court may, on the application of the Official Receiver or the trustee or any such creditor, make such order as it deems just with respect to the distribution of those assets and the amount of those expenses so recovered with a view to giving those creditors an advantage over others in consideration of the risk run by them in so doing. (Added 47 of 1984 s. 5) (5C) Any remuneration in respect of a period of holiday or of absence from work through sickness or other good cause shall be deemed to be wages in respect of services rendered to the bankrupt during that period. (Added 47 of 1984 s. 5) (6) This section shall apply in the case of a deceased person who dies insolvent as if he were a bankrupt and as if the date of his death were substituted for the date of the bankruptcy order. (Amended 76 of 1996 s. 73) (7) In the case of partners the joint estate shall be applicable in the first instance in payment of their joint debts and the separate estate of each partner shall be applicable in the first instance in payment of his separate debts. If there is a surplus of the separate estates, it shall be dealt with as part of the joint estate. If there is a surplus of the joint estate, it shall be dealt with as part of the respective separate estates in proportion to the right and interest of each partner in the joint estate. (See Rule 195) (8) Subject to the provisions of this Ordinance, all debts proved in the bankruptcy shall be paid pari passu. (9) If there is any surplus after payment of the foregoing debts, it shall be applied in payment of interest from the date of the bankruptcy order at the rate specified in section 71(3) on all debts proved in the bankruptcy. (Amended 76 of 1996 ss. 28 & 73) (10) In this section- "accrued holiday remuneration" (累算的假日薪酬) includes, in relation to any person, all sums which, by virtue either of his contract of employment or of any enactment (including any order made or direction given under any Ordinance), are payable on account of the remuneration which would, in the ordinary course, have become payable to him in respect of a period of holiday had his employment with the bankrupt continued until he became entitled to be allowed the holiday; "Employees Compensation Assistance Fund" (僱員補償援助基金) means the fund established by section 7 of the Employees Compensation Assistance Ordinance 1991 (54 of 1991); (Added 54 of 1991 s. 47) "Protection of Wages on Insolvency Fund" (破產欠薪保障基金) means the fund deemed to be established and continued in existence under section 6 of the Protection of Wages on Insolvency Ordinance (Cap 380); (Added 12 of 1985 s. 29(4)) "statutory debt" (法定債項) means a debt the liability for which and the amount of which are determined by or under any provision in any Ordinance; (Amended 18 of 2005 s. 12) "wages" (工資) includes, in relation to any person, any sum which, by virtue of his contract of employment, is payable to him as a Lunar New Year bonus, but does not include any accrued holiday remuneration. (Replaced 47 of 1984 s. 5) (11) The Bankruptcy (Amendment) Ordinance 1984 (47 of 1984) shall not apply in the case of a bankruptcy where the date of the receiving order occurred before the commencement* of that Ordinance, and, in such a case, the provisions relating to priority of debts which would have applied if that Ordinance had not been enacted shall be deemed to remain in full force. (Added 47 of 1984 s. 5) (12) The Fifth Schedule to the Protection of Wages on Insolvency Ordinance 1985 (12 of 1985) shall not apply in the case of a bankruptcy where the date of the filing of a petition occurred before the commencement of that Ordinance, and, in such case, the provisions relating to priority of debts which would have applied if that Ordinance has not been enacted shall deemed to remain in full force. (Added 12 of 1985 s. 29(4)) (13) Section 4(a) and (b) of the Protection of Wages on Insolvency (Amendment) Ordinance 1996 (68 of 1996) ("the amending Ordinance") shall not apply in the case of a bankruptcy to which an application under section 15(1) of the Protection of Wages on Insolvency Ordinance (Cap 380) relates where such application is made before the commencement of the amending Ordinance, and, in such case, the provisions relating to priority of debts which would have applied if the amending Ordinance had not been enacted shall be deemed to remain in full force. (Added 68 of 1996 s. 4) [cf. 1914 c. 59 s. 33 U.K.] ___________________________________________________________________________ ___ Note: * Commencement date: 31 August 1984. "accrued holiday remuneration" (累算的假日薪酬) "Employees Compensation Assistance Fund" (僱員補償援助基金) "Protection of Wages on Insolvency Fund" (破產欠薪保障基金) "statutory debt" (法定債項) "wages" (工資) BANKRUPTCY ORDINANCE - SECT 38 Priority of debts VerDate:01/04/1998 Adaptation amendments retroactively made - see 18 of 2005 s. 12 (1) In the distribution of the property of a bankrupt there shall be paid in priority to all other debts- (a) (Repealed 47 of 1984 s. 5) (b) any- (i) payment from the Protection of Wages on Insolvency Fund under section 18 of the Protection of Wages on Insolvency Ordinance (Cap 380) to any clerk or servant in respect of wages or salary or both in respect of services rendered to the bankrupt if such payment was made during a period of 4 months before the date of the filing of the petition; and (Amended 48 of 1987 s. 8) (ii) wages and salary (including commission provided that the amount thereof is fixed or ascertainable at the relevant date) of any clerk or servant in respect of services rendered to the bankrupt during a period- (A) beginning 4 months next before the date of the filing of the petition and ending on the making of the bankruptcy order; or (Amended 76 of 1996 s. 73) (B) beginning 4 months next before the last day of service within the meaning of section 16(4) of the Protection of Wages on Insolvency Ordinance (Cap 380) of any clerk or servant who has made an application for an ex gratia payment under section 15(1) of that Ordinance, and ending on that last day of service, (Replaced 68 of 1996 s. 4) whichever is the earlier, not exceeding, together with any payment under sub-paragraph (i), $300; (Replaced 12 of 1985 s. 29(4). Amended 48 of 1987 s. 8) (c) any- (i) payment from the Protection of Wages on Insolvency Fund under section 18 of the Protection of Wages on Insolvency Ordinance (Cap 380) to any labourer or workman in respect of wages, whether payable for time or for piece work, in respect of services rendered to the bankrupt if such payment was made during a period of 4 months before the date of the filing of the petition; and (ii) wages of any labourer or workman, whether payable for time or for piece work, in respect of services rendered to the bankrupt during the period- (A) beginning 4 months next before the date of the filing of the petition and ending on the making of a bankruptcy order; or (Amended 76 of 1996 s. 73) (B) beginning 4 months next before the last day of service within the meaning of section 16(4) of the Protection of Wages on Insolvency Ordinance (Cap 380) of any labourer or workman who has made an application for an ex gratia payment under section 15(1) of that Ordinance, and ending on that last day of service, (Replaced 68 of 1996 s. 4) whichever is the earlier, not exceeding, together with any payment under sub-paragraph (i), $100; (Replaced 12 of 1985 s. 29(4). Amended 48 of 1987 s. 8) (ca) any severance payment payable to an employee under the Employment Ordinance (Cap 57), not exceeding in respect of each employee $6000; (Added 54 of 1974 s. 2) (caa) any long service payment payable to an employee under the Employment Ordinance (Cap 57), not exceeding in respect of each employee $8000; (Added 78 of 1985 s. 2) (cb) any amount due in respect of compensation or liability for compensation under the Employees' Compensation Ordinance (Cap 282) accrued before the date of the bankruptcy order and, where the compensation is a periodical payment, the amount due in respect thereof shall be taken to be the amount of the lump sum for which the periodical payment could, if redeemable, be redeemed on an application being made for that purpose under the Employees' Compensation Ordinance (Cap 282), but this paragraph shall not apply to any amount due in respect of compensation or liability for compensation where the bankrupt has entered into a contract with a person carrying on accident insurance business in Hong Kong in respect of his liability under the Employees' Compensation Ordinance (Cap 282) for personal injury by accident to the employee to whom the compensation or liability for compensation is due; (Added 5 of 1977 s. 2. Amended 47 of 1984 s. 16; 76 of 1996 s. 73) (cc) any wages in lieu of notice payable to an employee under the Employment Ordinance (Cap 57), not exceeding in respect of each employee one month's wages or $2000 whichever is the lesser; (Added 5 of 1977 s. 2) (cd) all accrued holiday remuneration becoming payable to any clerk, servant, workman or labourer (or in the case of his death to any other person in his right) on the termination of his employment before or as a consequence of the bankruptcy order; (Added 47 of 1984 s. 5. Amended 76 of 1996 s. 73) (ce) any payment from the Employees Compensation Assistance Fund under Part IV of the Employees Compensation Assistance Ordinance 1991 (54 of 1991) representing an amount due by the bankrupt in respect of compensation or liability for compensation under the Employees' Compensation Ordinance (Cap 282) accrued before the date of the bankruptcy order; (Added 54 of 1991 s. 47. Amended 76 of 1996 s. 73) (cf) any amount of unpaid contribution or any amount deemed to be unpaid contribution calculated in accordance with rules made under section 73(1)(n) of the Occupational Retirement Schemes Ordinance (Cap 426) which should have been paid by the bankrupt in accordance with the terms of an occupational retirement scheme within the meaning of that Ordinance before the commencement of the bankruptcy: Provided that where such amount exceeds $50000 in respect of an employee, 50% of such part of the amount that exceeds $50000 shall not be paid in priority to all other debts under this subsection; (Added 88 of 1992 s. 83) (cg) (without prejudice to any right or liability under a trust) any amount of salaries deducted by the bankrupt from his employees' salaries for the purpose of making contributions in respect of such employees to the funds of an occupational retirement scheme within the meaning of the Occupational Retirement Schemes Ordinance (Cap 426) which have not been paid into such funds; (Added 88 of 1992 s. 83) (d) all statutory debts due from the bankrupt to the Crown at the date of the bankruptcy order and which became due and payable within 12 months next before that date. (Replaced 47 of 1984 s. 5. Amended 76 of 1996 s. 73) (2)-(2A) (Repealed 76 of 1996 s. 28) (2B) Where- (a) the date of the receiving order is on or after 1 April 1977; or (b) a bankruptcy order is made on or after the day the Bankruptcy (Amendment) Ordinance 1996 (76 of 1996) comes into operation, the sum of $8000 shall be deemed to be substituted in each case for the sums of $300 and $100 referred to in paragraphs (b) and (c) respectively, and for the sum of $6000 referred to in paragraph (ca), of subsection (1). (Added 5 of 1977 s. 2. Amended 76 of 1996 s. 28) (3) The debts specified in subsection (1)(b), (c), (ca), (caa), (cb), (cc), (cd), (ce), (cf) and (cg)- (Amended 47 of 1984 s. 5; 78 of 1985 s. 2; 54 of 1991 s. 47; 88 of 1992 s. 83) (a) shall have priority over the debts specified in subsection (1)(d); (b) shall rank equally among themselves; and (c) shall be paid in full unless the property of the bankrupt is insufficient to meet them, in which case they shall abate in equal proportions among themselves. (Replaced 42 of 1970 s. 2. Amended 54 of 1974 s. 2; 5 of 1977 s. 2) (3A) (Repealed 47 of 1984 s. 5) (4) Subject to the provisions contained in section 37 and to the retention of such sums as may be necessary for the costs of administration or otherwise, the foregoing debts shall be discharged forthwith so far as the property of the debtor is sufficient to meet them. (5) In the event of a landlord or other person distraining or having distrained on any goods or effects of a bankrupt within 3 months next before the date of the bankruptcy order the debts to which priority is given by this section shall be a first charge on the goods or effects so distrained on or the proceeds of the sale thereof. (Amended 42 of 1970 s. 2; 76 of 1996 s. 73) (5A) Any money paid under a charge under subsection (5) shall be a debt due from the estate of the bankrupt to the landlord or other person distraining or having distrained, and such debt shall be discharged so far as the property of the bankrupt is sufficient to meet it after payment of the debts specified in subsection (1) but before payment of the other debts proved in the bankruptcy. (Added 42 of 1970 s. 2) (5B) Where any assets have been recovered under an indemnity for costs of litigation given by certain creditors, or have been protected or preserved by the payment of moneys or the giving of indemnity by creditors, or where expenses in relation to which a creditor has indemnified a trustee have been recovered, the court may, on the application of the Official Receiver or the trustee or any such creditor, make such order as it deems just with respect to the distribution of those assets and the amount of those expenses so recovered with a view to giving those creditors an advantage over others in consideration of the risk run by them in so doing. (Added 47 of 1984 s. 5) (5C) Any remuneration in respect of a period of holiday or of absence from work through sickness or other good cause shall be deemed to be wages in respect of services rendered to the bankrupt during that period. (Added 47 of 1984 s. 5) (6) This section shall apply in the case of a deceased person who dies insolvent as if he were a bankrupt and as if the date of his death were substituted for the date of the bankruptcy order. (Amended 76 of 1996 s. 73) (7) In the case of partners the joint estate shall be applicable in the first instance in payment of their joint debts and the separate estate of each partner shall be applicable in the first instance in payment of his separate debts. If there is a surplus of the separate estates, it shall be dealt with as part of the joint estate. If there is a surplus of the joint estate, it shall be dealt with as part of the respective separate estates in proportion to the right and interest of each partner in the joint estate. (See Rule 195) (8) Subject to the provisions of this Ordinance, all debts proved in the bankruptcy shall be paid pari passu. (9) If there is any surplus after payment of the foregoing debts, it shall be applied in payment of interest from the date of the bankruptcy order at the rate specified in section 71(3) on all debts proved in the bankruptcy. (Amended 76 of 1996 ss. 28 & 73) (10) In this section- "accrued holiday remuneration" (累算的假日薪酬) includes, in relation to any person, all sums which, by virtue either of his contract of employment or of any enactment (including any order made or direction given under any Ordinance), are payable on account of the remuneration which would, in the ordinary course, have become payable to him in respect of a period of holiday had his employment with the bankrupt continued until he became entitled to be allowed the holiday; "Employees Compensation Assistance Fund" (僱員補償援助基金) means the fund established by section 7 of the Employees Compensation Assistance Ordinance 1991 (54 of 1991); (Added 54 of 1991 s. 47) "Protection of Wages on Insolvency Fund" (破產欠薪保障基金) means the fund deemed to be established and continued in existence under section 6 of the Protection of Wages on Insolvency Ordinance (Cap 380); (Added 12 of 1985 s. 29(4)) "statutory debt" (法定債項) means a debt the liability for which and the amount of which are determined by or under any provision in any Ordinance; (Amended 18 of 2005 s. 12) "wages" (工資) includes, in relation to any person, any sum which, by virtue of his contract of employment, is payable to him as a Lunar New Year bonus, but does not include any accrued holiday remuneration. (Replaced 47 of 1984 s. 5) (11) The Bankruptcy (Amendment) Ordinance 1984 (47 of 1984) shall not apply in the case of a bankruptcy where the date of the receiving order occurred before the commencement* of that Ordinance, and, in such a case, the provisions relating to priority of debts which would have applied if that Ordinance had not been enacted shall be deemed to remain in full force. (Added 47 of 1984 s. 5) (12) The Fifth Schedule to the Protection of Wages on Insolvency Ordinance 1985 (12 of 1985) shall not apply in the case of a bankruptcy where the date of the filing of a petition occurred before the commencement of that Ordinance, and, in such case, the provisions relating to priority of debts which would have applied if that Ordinance has not been enacted shall deemed to remain in full force. (Added 12 of 1985 s. 29(4)) (13) Section 4(a) and (b) of the Protection of Wages on Insolvency (Amendment) Ordinance 1996 (68 of 1996) ("the amending Ordinance") shall not apply in the case of a bankruptcy to which an application under section 15(1) of the Protection of Wages on Insolvency Ordinance (Cap 380) relates where such application is made before the commencement of the amending Ordinance, and, in such case, the provisions relating to priority of debts which would have applied if the amending Ordinance had not been enacted shall be deemed to remain in full force. (Added 68 of 1996 s. 4) [cf. 1914 c. 59 s. 33 U.K.] ___________________________________________________________________________ ___ * Commencement date: 31 August 1984. "accrued holiday remuneration" (累算的假日薪酬) "Employees Compensation Assistance Fund" (僱員補償援助基金) "Protection of Wages on Insolvency Fund" (破產欠薪保障基金) "statutory debt" (法定債項) "wages" (工資) BANKRUPTCY ORDINANCE - SECT 38 Priority of debts VerDate:01/07/1997 Adaptation amendments retroactively made - see 18 of 2005 s. 12 (1) In the distribution of the property of a bankrupt there shall be paid in priority to all other debts- (a) (Repealed 47 of 1984 s. 5) (b) any- (i) payment from the Protection of Wages on Insolvency Fund under section 18 of the Protection of Wages on Insolvency Ordinance (Cap 380) to any clerk or servant in respect of wages or salary or both in respect of services rendered to the bankrupt if such payment was made during a period of 4 months before the date of the filing of the petition; and (Amended 48 of 1987 s. 8) (ii) wages and salary (including commission provided that the amount thereof is fixed or ascertainable at the relevant date) of any clerk or servant in respect of services rendered to the bankrupt during a period- (A) beginning 4 months next before the date of the filing of the petition and ending on the making of the receiving order; or (B) beginning 4 months next before the last day of service within the meaning of section 16(4) of the Protection of Wages on Insolvency Ordinance (Cap 380) of any clerk or servant who has made an application for an ex gratia payment under section 15(1) of that Ordinance, and ending on that last day of service, (Replaced 68 of 1996 s. 4) whichever is the earlier, not exceeding, together with any payment under sub-paragraph (i), $300; (Replaced 12 of 1985 s. 29(4). Amended 48 of 1987 s. 8) (c) any- (i) payment from the Protection of Wages on Insolvency Fund under section 18 of the Protection of Wages on Insolvency Ordinance (Cap 380) to any labourer or workman in respect of wages, whether payable for time or for piece work, in respect of services rendered to the bankrupt if such payment was made during a period of 4 months before the date of the filing of the petition; and (ii) wages of any labourer or workman, whether payable for time or for piece work, in respect of services rendered to the bankrupt during the period- (A) beginning 4 months next before the date of the filing of the petition and ending on the making of a receiving order; or (B) beginning 4 months next before the last day of service within the meaning of section 16(4) of the Protection of Wages on Insolvency Ordinance (Cap 380) of any labourer or workman who has made an application for an ex gratia payment under section 15(1) of that Ordinance, and ending on that last day of service, (Replaced 68 of 1996 s. 4) whichever is the earlier, not exceeding, together with any payment under sub-paragraph (i), $100; (Replaced 12 of 1985 s. 29(4). Amended 48 of 1987 s. 8) (ca) any severance payment payable to an employee under the Employment Ordinance (Cap 57), not exceeding in respect of each employee $6000; (Added 54 of 1974 s. 2) (caa) any long service payment payable to an employee under the Employment Ordinance (Cap 57), not exceeding in respect of each employee $8000; (Added 78 of 1985 s. 2) (cb) any amount due in respect of compensation or liability for compensation under the Employees' Compensation Ordinance (Cap 282) accrued before the date of the receiving order and, where the compensation is a periodical payment, the amount due in respect thereof shall be taken to be the amount of the lump sum for which the periodical payment could, if redeemable, be redeemed on an application being made for that purpose under the Employees' Compensation Ordinance (Cap 282), but this paragraph shall not apply to any amount due in respect of compensation or liability for compensation where the bankrupt has entered into a contract with a person carrying on accident insurance business in Hong Kong in respect of his liability under the Employees' Compensation Ordinance (Cap 282) for personal injury by accident to the employee to whom the compensation or liability for compensation is due; (Added 5 of 1977 s. 2. Amended 47 of 1984 s. 16) (cc) any wages in lieu of notice payable to an employee under the Employment Ordinance (Cap 57), not exceeding in respect of each employee one month's wages or $2000 whichever is the lesser; (Added 5 of 1977 s. 2) (cd) all accrued holiday remuneration becoming payable to any clerk, servant, workman or labourer (or in the case of his death to any other person in his right) on the termination of his employment before or as a consequence of the receiving order; (Added 47 of 1984 s. 5) (ce) any payment from the Employees Compensation Assistance Fund under Part IV of the Employees Compensation Assistance Ordinance 1991 (54 of 1991) representing an amount due by the bankrupt in respect of compensation or liability for compensation under the Employees' Compensation Ordinance (Cap 282) accrued before the date of the receiving order; (Added 54 of 1991 s. 47) (cf) any amount of unpaid contribution or any amount deemed to be unpaid contribution calculated in accordance with rules made under section 73(1)(n) of the Occupational Retirement Schemes Ordinance (Cap 426) which should have been paid by the bankrupt in accordance with the terms of an occupational retirement scheme within the meaning of that Ordinance before the commencement of the bankruptcy: Provided that where such amount exceeds $50000 in respect of an employee, 50% of such part of the amount that exceeds $50000 shall not be paid in priority to all other debts under this subsection; (Added 88 of 1992 s. 83) (cg) (without prejudice to any right or liability under a trust) any amount of salaries deducted by the bankrupt from his employees' salaries for the purpose of making contributions in respect of such employees to the funds of an occupational retirement scheme within the meaning of the Occupational Retirement Schemes Ordinance (Cap 426) which have not been paid into such funds; (Added 88 of 1992 s. 83) (d) all statutory debts due from the bankrupt to the Crown at the date of the receiving order and which became due and payable within 12 months next before that date. (Replaced 47 of 1984 s. 5) (2) Where the date of the receiving order is after 27 March 1953, but before 1 June 1970, the sum of $3000 shall be deemed to be substituted in each case for the sums of $300 and $100 referred to respectively in subsection (1)(b) and (c). (Added 8 of 1953 s.2. Amended 42 of 1970 s. 2) (2A) Where the date of the receiving order is on or after 1 June 1970, but before 1 April 1977, the sum of $6000 shall be deemed to be substituted in each case for the sums of $300 and $100 referred to in subsection (1)(b) and (c) respectively. (Added 42 of 1970 s. 2. Amended 5 of 1977 s. 2) (2B) Where the date of the receiving order is on or after 1 April 1977, the sum of $8000 shall be deemed to be substituted in each case for the sums of $300 and $100 referred to in paragraphs (b) and (c) respectively, and for the sum of $6000 referred to in paragraph (ca), of subsection (1). (Added 5 of 1977 s. 2) (3) The debts specified in subsection (1)(b), (c), (ca), (caa), (cb), (cc), (cd), (ce), (cf) and (cg)- (Amended 47 of 1984 s. 5; 78 of 1985 s. 2; 54 of 1991 s. 47; 88 of 1992 s. 83) (a) shall have priority over the debts specified in subsection (1)(d); (b) shall rank equally among themselves; and (c) shall be paid in full unless the property of the bankrupt is insufficient to meet them, in which case they shall abate in equal proportions among themselves. (Replaced 42 of 1970 s. 2. Amended 54 of 1974 s. 2; 5 of 1977 s. 2) (3A) (Repealed 47 of 1984 s. 5) (4) Subject to the provisions contained in section 37 and to the retention of such sums as may be necessary for the costs of administration or otherwise, the foregoing debts shall be discharged forthwith so far as the property of the debtor is sufficient to meet them. (5) In the event of a landlord or other person distraining or having distrained on any goods or effects of a bankrupt within 3 months next before the date of the receiving order the debts to which priority is given by this section shall be a first charge on the goods or effects so distrained on or the proceeds of the sale thereof. (Amended 42 of 1970 s. 2) (5A) Any money paid under a charge under subsection (5) shall be a debt due from the estate of the bankrupt to the landlord or other person distraining or having distrained, and such debt shall be discharged so far as the property of the bankrupt is sufficient to meet it after payment of the debts specified in subsection (1) but before payment of the other debts proved in the bankruptcy. (Added 42 of 1970 s. 2) (5B) Where any assets have been recovered under an indemnity for costs of litigation given by certain creditors, or have been protected or preserved by the payment of moneys or the giving of indemnity by creditors, or where expenses in relation to which a creditor has indemnified a trustee have been recovered, the court may, on the application of the Official Receiver or the trustee or any such creditor, make such order as it deems just with respect to the distribution of those assets and the amount of those expenses so recovered with a view to giving those creditors an advantage over others in consideration of the risk run by them in so doing. (Added 47 of 1984 s. 5) (5C) Any remuneration in respect of a period of holiday or of absence from work through sickness or other good cause shall be deemed to be wages in respect of services rendered to the bankrupt during that period. (Added 47 of 1984 s. 5) (6) This section shall apply in the case of a deceased person who dies insolvent as if he were a bankrupt and as if the date of his death were substituted for the date of the receiving order. (7) In the case of partners the joint estate shall be applicable in the first instance in payment of their joint debts and the separate estate of each partner shall be applicable in the first instance in payment of his separate debts. If there is a surplus of the separate estates, it shall be dealt with as part of the joint estate. If there is a surplus of the joint estate, it shall be dealt with as part of the respective separate estates in proportion to the right and interest of each partner in the joint estate. (See Rule 195) (8) Subject to the provisions of this Ordinance, all debts proved in the bankruptcy shall be paid pari passu. (9) If there is any surplus after payment of the foregoing debts, it shall be applied in payment of interest from the date of the receiving order at the rate of 8 per cent per annum on all debts proved in the bankruptcy. (10) In this section- "accrued holiday remuneration" (累算的假日薪酬) includes, in relation to any person, all sums which, by virtue either of his contract of employment or of any enactment (including any order made or direction given under any Ordinance), are payable on account of the remuneration which would, in the ordinary course, have become payable to him in respect of a period of holiday had his employment with the bankrupt continued until he became entitled to be allowed the holiday; "Employees Compensation Assistance Fund" (僱員補償援助基金) means the fund established by section 7 of the Employees Compensation Assistance Ordinance 1991 (54 of 1991); (Added 54 of 1991 s. 47) "Protection of Wages on Insolvency Fund" (破產欠薪保障基金) means the fund deemed to be established and continued in existence under section 6 of the Protection of Wages on Insolvency Ordinance (Cap 380); (Added 12 of 1985 s. 29(4)) "statutory debt" (法定債項) means a debt the liability for which and the amount of which are determined by or under any provision in any Ordinance; (Amended 18 of 2005 s. 12) "wages" (工資) includes, in relation to any person, any sum which, by virtue of his contract of employment, is payable to him as a Lunar New Year bonus, but does not include any accrued holiday remuneration. (Replaced 47 of 1984 s. 5) (11) The Bankruptcy (Amendment) Ordinance 1984 (47 of 1984) shall not apply in the case of a bankruptcy where the date of the receiving order occurred before the commencement* of that Ordinance, and, in such a case, the provisions relating to priority of debts which would have applied if that Ordinance had not been enacted shall be deemed to remain in full force. (* Commencement date : 31 August 1984.) (Added 47 of 1984 s. 5) (12) The Fifth Schedule to the Protection of Wages on Insolvency Ordinance 1985 (12 of 1985) shall not apply in the case of a bankruptcy where the date of the filing of a petition occurred before the commencement of that Ordinance, and, in such case, the provisions relating to priority of debts which would have applied if that Ordinance has not been enacted shall deemed to remain in full force. (Added 12 of 1985 s. 29(4)) (13) Section 4(a) and (b) of the Protection of Wages on Insolvency (Amendment) Ordinance 1996 (68 of 1996) ("the amending Ordinance") shall not apply in the case of a bankruptcy to which an application under section 15(1) of the Protection of Wages on Insolvency Ordinance (Cap 380) relates where such application is made before the commencement of the amending Ordinance, and, in such case, the provisions relating to priority of debts which would have applied if the amending Ordinance had not been enacted shall be deemed to remain in full force. (Added 68 of 1996 s. 4) [cf. 1914 c. 59 s. 33 U.K.] "accrued holiday remuneration" (累算的假日薪酬) "Employees Compensation Assistance Fund" (僱員補償援助基金) "Protection of Wages on Insolvency Fund" (破產欠薪保障基金) "statutory debt" (法定債項) "wages" (工資) BANKRUPTCY ORDINANCE - SECT 38 Priority of debts VerDate:30/06/1997 (1) In the distribution of the property of a bankrupt there shall be paid in priority to all other debts- (a) (Repealed 47 of 1984 s. 5) (b) any- (i) payment from the Protection of Wages on Insolvency Fund under section 18 of the Protection of Wages on Insolvency Ordinance (Cap 380) to any clerk or servant in respect of wages or salary or both in respect of services rendered to the bankrupt if such payment was made during a period of 4 months before the date of the filing of the petition; and (Amended 48 of 1987 s. 8) (ii) wages and salary (including commission provided that the amount thereof is fixed or ascertainable at the relevant date) of any clerk or servant in respect of services rendered to the bankrupt during a period- (A) beginning 4 months next before the date of the filing of the petition and ending on the making of the receiving order; or (B) beginning 4 months next before the last day of service within the meaning of section 16(4) of the Protection of Wages on Insolvency Ordinance (Cap 380) of any clerk or servant who has made an application for an ex gratia payment under section 15(1) of that Ordinance, and ending on that last day of service, (Replaced 68 of 1996 s. 4) whichever is the earlier, not exceeding, together with any payment under sub-paragraph (i), $300; (Replaced 12 of 1985 s. 29(4). Amended 48 of 1987 s. 8) (c) any- (i) payment from the Protection of Wages on Insolvency Fund under section 18 of the Protection of Wages on Insolvency Ordinance (Cap 380) to any labourer or workman in respect of wages, whether payable for time or for piece work, in respect of services rendered to the bankrupt if such payment was made during a period of 4 months before the date of the filing of the petition; and (ii) wages of any labourer or workman, whether payable for time or for piece work, in respect of services rendered to the bankrupt during the period- (A) beginning 4 months next before the date of the filing of the petition and ending on the making of a receiving order; or (B) beginning 4 months next before the last day of service within the meaning of section 16(4) of the Protection of Wages on Insolvency Ordinance (Cap 380) of any labourer or workman who has made an application for an ex gratia payment under section 15(1) of that Ordinance, and ending on that last day of service, (Replaced 68 of 1996 s. 4) whichever is the earlier, not exceeding, together with any payment under sub-paragraph (i), $100; (Replaced 12 of 1985 s. 29(4). Amended 48 of 1987 s. 8) (ca) any severance payment payable to an employee under the Employment Ordinance (Cap 57), not exceeding in respect of each employee $6000; (Added 54 of 1974 s. 2) (caa) any long service payment payable to an employee under the Employment Ordinance (Cap 57), not exceeding in respect of each employee $8000; (Added 78 of 1985 s. 2) (cb) any amount due in respect of compensation or liability for compensation under the Employees' Compensation Ordinance (Cap 282) accrued before the date of the receiving order and, where the compensation is a periodical payment, the amount due in respect thereof shall be taken to be the amount of the lump sum for which the periodical payment could, if redeemable, be redeemed on an application being made for that purpose under the Employees' Compensation Ordinance (Cap 282), but this paragraph shall not apply to any amount due in respect of compensation or liability for compensation where the bankrupt has entered into a contract with a person carrying on accident insurance business in Hong Kong in respect of his liability under the Employees' Compensation Ordinance (Cap 282) for personal injury by accident to the employee to whom the compensation or liability for compensation is due; (Added 5 of 1977 s. 2. Amended 47 of 1984 s. 16) (cc) any wages in lieu of notice payable to an employee under the Employment Ordinance (Cap 57), not exceeding in respect of each employee one month's wages or $2000 whichever is the lesser; (Added 5 of 1977 s. 2) (cd) all accrued holiday remuneration becoming payable to any clerk, servant, workman or labourer (or in the case of his death to any other person in his right) on the termination of his employment before or as a consequence of the receiving order; (Added 47 of 1984 s. 5) (ce) any payment from the Employees Compensation Assistance Fund under Part IV of the Employees Compensation Assistance Ordinance 1991 (54 of 1991) representing an amount due by the bankrupt in respect of compensation or liability for compensation under the Employees' Compensation Ordinance (Cap 282) accrued before the date of the receiving order; (Added 54 of 1991 s. 47) (cf) any amount of unpaid contribution or any amount deemed to be unpaid contribution calculated in accordance with rules made under section 73(1)(n) of the Occupational Retirement Schemes Ordinance (Cap 426) which should have been paid by the bankrupt in accordance with the terms of an occupational retirement scheme within the meaning of that Ordinance before the commencement of the bankruptcy: Provided that where such amount exceeds $50000 in respect of an employee, 50% of such part of the amount that exceeds $50000 shall not be paid in priority to all other debts under this subsection; (Added 88 of 1992 s. 83) (cg) (without prejudice to any right or liability under a trust) any amount of salaries deducted by the bankrupt from his employees' salaries for the purpose of making contributions in respect of such employees to the funds of an occupational retirement scheme within the meaning of the Occupational Retirement Schemes Ordinance (Cap 426) which have not been paid into such funds; (Added 88 of 1992 s. 83) (d) all statutory debts due from the bankrupt to the Crown at the date of the receiving order and which became due and payable within 12 months next before that date. (Replaced 47 of 1984 s. 5) (2) Where the date of the receiving order is after 27 March 1953, but before 1 June 1970, the sum of $3000 shall be deemed to be substituted in each case for the sums of $300 and $100 referred to respectively in subsection (1)(b) and (c). (Added 8 of 1953 s.2. Amended 42 of 1970 s. 2) (2A) Where the date of the receiving order is on or after 1 June 1970, but before 1 April 1977, the sum of $6000 shall be deemed to be substituted in each case for the sums of $300 and $100 referred to in subsection (1)(b) and (c) respectively. (Added 42 of 1970 s. 2. Amended 5 of 1977 s. 2) (2B) Where the date of the receiving order is on or after 1 April 1977, the sum of $8000 shall be deemed to be substituted in each case for the sums of $300 and $100 referred to in paragraphs (b) and (c) respectively, and for the sum of $6000 referred to in paragraph (ca), of subsection (1). (Added 5 of 1977 s. 2) (3) The debts specified in subsection (1)(b), (c), (ca), (caa), (cb), (cc), (cd), (ce), (cf) and (cg)- (Amended 47 of 1984 s. 5; 78 of 1985 s. 2; 54 of 1991 s. 47; 88 of 1992 s. 83) (a) shall have priority over the debts specified in subsection (1)(d); (b) shall rank equally among themselves; and (c) shall be paid in full unless the property of the bankrupt is insufficient to meet them, in which case they shall abate in equal proportions among themselves. (Replaced 42 of 1970 s. 2. Amended 54 of 1974 s. 2; 5 of 1977 s. 2) (3A) (Repealed 47 of 1984 s. 5) (4) Subject to the provisions contained in section 37 and to the retention of such sums as may be necessary for the costs of administration or otherwise, the foregoing debts shall be discharged forthwith so far as the property of the debtor is sufficient to meet them. (5) In the event of a landlord or other person distraining or having distrained on any goods or effects of a bankrupt within 3 months next before the date of the receiving order the debts to which priority is given by this section shall be a first charge on the goods or effects so distrained on or the proceeds of the sale thereof. (Amended 42 of 1970 s. 2) (5A) Any money paid under a charge under subsection (5) shall be a debt due from the estate of the bankrupt to the landlord or other person distraining or having distrained, and such debt shall be discharged so far as the property of the bankrupt is sufficient to meet it after payment of the debts specified in subsection (1) but before payment of the other debts proved in the bankruptcy. (Added 42 of 1970 s. 2) (5B) Where any assets have been recovered under an indemnity for costs of litigation given by certain creditors, or have been protected or preserved by the payment of moneys or the giving of indemnity by creditors, or where expenses in relation to which a creditor has indemnified a trustee have been recovered, the court may, on the application of the Official Receiver or the trustee or any such creditor, make such order as it deems just with respect to the distribution of those assets and the amount of those expenses so recovered with a view to giving those creditors an advantage over others in consideration of the risk run by them in so doing. (Added 47 of 1984 s. 5) (5C) Any remuneration in respect of a period of holiday or of absence from work through sickness or other good cause shall be deemed to be wages in respect of services rendered to the bankrupt during that period. (Added 47 of 1984 s. 5) (6) This section shall apply in the case of a deceased person who dies insolvent as if he were a bankrupt and as if the date of his death were substituted for the date of the receiving order. (7) In the case of partners the joint estate shall be applicable in the first instance in payment of their joint debts and the separate estate of each partner shall be applicable in the first instance in payment of his separate debts. If there is a surplus of the separate estates, it shall be dealt with as part of the joint estate. If there is a surplus of the joint estate, it shall be dealt with as part of the respective separate estates in proportion to the right and interest of each partner in the joint estate. (See Rule 195) (8) Subject to the provisions of this Ordinance, all debts proved in the bankruptcy shall be paid pari passu. (9) If there is any surplus after payment of the foregoing debts, it shall be applied in payment of interest from the date of the receiving order at the rate of 8 per cent per annum on all debts proved in the bankruptcy. (10) In this section- "accrued holiday remuneration" (累算的假日薪酬) includes, in relation to any person, all sums which, by virtue either of his contract of employment or of any enactment (including any order made or direction given under any Ordinance), are payable on account of the remuneration which would, in the ordinary course, have become payable to him in respect of a period of holiday had his employment with the bankrupt continued until he became entitled to be allowed the holiday; "Employees Compensation Assistance Fund" (僱員補償援助基金) means the fund established by section 7 of the Employees Compensation Assistance Ordinance 1991 (54 of 1991); (Added 54 of 1991 s. 47) "Protection of Wages on Insolvency Fund" (破產欠薪保障基金) means the fund deemed to be established and continued in existence under section 6 of the Protection of Wages on Insolvency Ordinance (Cap 380); (Added 12 of 1985 s. 29(4)) "statutory debt" (法定債項) means a debt the liability for which and the amount of which are determined by or under any provision in any Ordinance or imperial enactment; "wages" (工資) includes, in relation to any person, any sum which, by virtue of his contract of employment, is payable to him as a Lunar New Year bonus, but does not include any accrued holiday remuneration. (Replaced 47 of 1984 s. 5) (11) The Bankruptcy (Amendment) Ordinance 1984 (47 of 1984) shall not apply in the case of a bankruptcy where the date of the receiving order occurred before the commencement* of that Ordinance, and, in such a case, the provisions relating to priority of debts which would have applied if that Ordinance had not been enacted shall be deemed to remain in full force. (* Commencement date : 31 August 1984.) (Added 47 of 1984 s. 5) (12) The Fifth Schedule to the Protection of Wages on Insolvency Ordinance 1985 (12 of 1985) shall not apply in the case of a bankruptcy where the date of the filing of a petition occurred before the commencement of that Ordinance, and, in such case, the provisions relating to priority of debts which would have applied if that Ordinance has not been enacted shall deemed to remain in full force. (Added 12 of 1985 s. 29(4)) (13) Section 4(a) and (b) of the Protection of Wages on Insolvency (Amendment) Ordinance 1996 (68 of 1996) ("the amending Ordinance") shall not apply in the case of a bankruptcy to which an application under section 15(1) of the Protection of Wages on Insolvency Ordinance (Cap 380) relates where such application is made before the commencement of the amending Ordinance, and, in such case, the provisions relating to priority of debts which would have applied if the amending Ordinance had not been enacted shall be deemed to remain in full force. (Added 68 of 1996 s. 4) [cf. 1914 c. 59 s. 33 U.K.] "accrued holiday remuneration" (累算的假日薪酬) "Employees Compensation Assistance Fund" (僱員補償援助基金) "Protection of Wages on Insolvency Fund" (破產欠薪保障基金) "statutory debt" (法定債項) "wages" (工資) BANKRUPTCY ORDINANCE - SECT 39 Preferential claims in case of apprenticeship VerDate:30/06/1997 (1) Where at the time of the presentation of the bankruptcy petition any person is apprenticed or is a trainee solicitor to the bankrupt, the adjudication of bankruptcy shall, if either the bankrupt or the apprentice or trainee solicitor gives notice in writing to the trustee to that effect, be a complete discharge of the indenture of apprenticeship or trainee solicitor contract; and if any money has been paid by or on behalf of the apprentice or trainee solicitor to the bankrupt as a fee, the trustee may, on the application of the apprentice or trainee solicitor or of some person on his behalf, pay such sum as the trustee, subject to an appeal to the court, thinks reasonable, out of the bankrupt's property, to or for the use of the apprentice or trainee solicitor, regard being had to the amount paid by him or on his behalf and to the time during which he served with the bankrupt under the indenture or trainee solicitor contract before the commencement of the bankruptcy and to the other circumstances of the case. (2) Where it appears expedient to a trustee, he may, on the application of any apprentice or trainee solicitor to the bankrupt or any person acting on behalf of such apprentice or trainee solicitor, instead of acting under the provisions of subsection (1), transfer the indenture of apprenticeship or trainee solicitor contract to some other person. (Amended 70 of 1991 s. 14) [cf. 1914 c. 59 s. 34 U.K.] BANKRUPTCY ORDINANCE - SECT 40 Landlord's power of distress VerDate:30/06/1997 The Landlord or other person to whom any rent is due from the bankrupt may, subject to the provisions of Part III of the Landlord and Tenant (Consolidation) Ordinance (Cap 7), at any time either before or after the commencement of the bankruptcy, distrain upon the goods or effects of the bankrupt for the rent due to him from the bankrupt, with this limitation, that if such distress for rent be levied after the commencement of the bankruptcy, it shall be available only for 6 months' rent accrued due prior to the date of the order of adjudication and shall not be available for rent payable in respect of any period subsequent to the date when the distress was levied, but the landlord or other person to whom the rent may be due from the bankrupt may prove under the bankruptcy for the surplus due for which the distress may not have been available. [cf. 1914 c. 59 s. 35 U.K.] BANKRUPTCY ORDINANCE - SECT 41 Spouse's claim postponed VerDate:01/04/1998 A bankrupt's spouse shall not be entitled to claim any dividend as a creditor in respect of any money or other estate, lent or entrusted to the bankrupt until all claims of the other creditors of the bankrupt for valuable consideration in money or monies worth have been satisfied. (Replaced 76 of 1996 s. 29) BANKRUPTCY ORDINANCE - SECT 41 Postponement of husband's and wife's claims VerDate:30/06/1997 (1) Where a married woman has been adjudged bankrupt, her husband shall not be entitled to claim any dividend as a creditor in respect of any money or other estate lent or entrusted by him to her until all claims of the other creditors of his wife for valuable consideration in money or money's worth have been satisfied. (2) Where a debtor has been adjudged bankrupt, any money or other estate of his wife lent or entrusted by her to him shall be treated as assets of his estate, and the wife shall not be entitled to claim any dividend as a creditor in respect of any such money or other estate until all claims of the other creditors of the debtor for valuable consideration in money or money's worth have been satisfied. (3) In this section "married woman" (已婚女子) and "wife" (妻子) include "concubine" (妾侍). [cf. 1914 c. 59 s. 36 U.K.] "married woman" (已婚女子) and "wife" (妻子) "concubine" (妾侍) BANKRUPTCY ORDINANCE - SECT 42 Restrictions on dispositions of property VerDate:01/04/1998 Property available for payment of debts (1) Where a person is adjudged bankrupt, any disposition of property made by that person in the period to which this section applies is void except to the extent that it is or was made with the consent of the court, or is or was subsequently ratified by the court. (2) Subsection (1) applies to a payment (whether in cash or otherwise) as it applies to a disposition of property and, accordingly, where any payment is void by virtue of that subsection, the person paid shall hold the sum paid for the bankrupt as part of his estate. (3) This section applies to the period beginning with the day of the presentation of the petition for the bankruptcy order and ending with the vesting of the bankrupt's estate in a trustee. (4) This section does not give a remedy against any person- (a) in respect of any property or payment which he received before the commencement of the bankruptcy in good faith, for value and without notice that the petition had been presented; or (b) in respect of any interest in property which derives from an interest in property referred to in paragraph (a). (5) Where after the commencement of the bankruptcy the bankrupt has incurred a debt to any person by reason of the making of a payment which is void under this section, that debt is deemed for the purposes of this Ordinance to have been incurred before the commencement of the bankruptcy unless- (a) that person had notice of the bankruptcy before the debt was incurred; or (b) it is not reasonably practicable for the amount of the payment to be recovered from the person to whom it was made. (6) A disposition of property is void under this section notwithstanding that the property is not or, as the case may be, would not be comprised in the bankrupt's estate; but nothing in this section affects any disposition made by a person of property held by him on trust for any other person. (Replaced 76 of 1996 s. 30) BANKRUPTCY ORDINANCE - SECT 42 Relation back of trustee's title VerDate:30/06/1997 Property available for payment of debts The bankruptcy of a debtor, whether it takes place on the debtor's own petition or upon that of a creditor or creditors, shall be deemed to have relation back to, and to commence at, the time of the act of bankruptcy being committed on which a receiving order is made against him, or, if the bankrupt is proved to have committed more acts of bankruptcy than one, to have relation back to, and to commence at, the time of the first of the acts of bankruptcy proved to have been committed by the bankrupt within 3 months next preceding the date of the presentation of the bankruptcy petition, but no bankruptcy petition, receiving order or adjudication shall be rendered invalid by reason of any act of bankruptcy anterior to the debt of the petitioning creditor. [cf. 1914 c.59 s.37 U.K.] BANKRUPTCY ORDINANCE - SECT 43 Definition of bankrupt's estate VerDate:01/04/1998 (1) Subject to this section and sections 43A to 43E, a bankrupt's estate comprises- <* Note - Exp. X-Ref.: Sections 43A, 43B, 43C, 43D, 43E *> (a) all property belonging to or vested in the bankrupt at the commencement of the bankruptcy; and (b) any property which by virtue of any of the provisions of this Ordinance is comprised in that estate or is treated as falling within paragraph (a). (2) Subsection (1) does not apply to- (a) such tools, books, vehicles and other items of equipment as are necessary to the bankrupt for use personally by him in his employment, business or vocation; (b) such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the bankrupt and his family. (3) Subsection (1) does not apply to property held by the bankrupt on trust for any other person. (4) References in this Ordinance to property, in relation to a bankrupt, include references to any power exercisable by him over or in respect of property except in so far as the power is exercisable over or in respect of property not for the time being comprised in the bankrupt's estate and cannot be so exercised for the benefit of the bankrupt; and a power exercisable over or in respect of property is deemed to vest in the person entitled to exercise it at the time of the transaction or event by virtue of which it is exercisable by that person (whether or not it becomes so exercisable at that time). (5) For the purposes of any provision in this Ordinance, property comprised in a bankrupt's estate is so comprised subject to the rights of any person other than the bankrupt (whether as a secured creditor of the bankrupt or otherwise) in relation thereto, but disregarding- (a) any rights in relation to which a statement such as is required by section 6B(1)(a) was made in the petition on which the bankrupt was adjudged bankrupt; and (b) any rights which have been otherwise given up in accordance with the rules. (6) This section has effect subject to the provisions of any enactment not contained in this Ordinance under which any property is to be excluded from a bankrupt's estate. (Replaced 76 of 1996 s. 31) BANKRUPTCY ORDINANCE - SECT 43 Description of bankrupt's property divisible amongst creditors VerDate:30/06/1997 The property of the bankrupt divisible amongst his creditors, and in this Ordinance referred to as the property of the bankrupt, shall not comprise the following particulars- (a) property held by the bankrupt on trust for any other person; (b) the tools (if any) of his trade and the necessary wearing apparel and bedding of himself and his family dependent on and residing with him, to a value, inclusive of tools and apparel and bedding, not exceeding $3000 in the whole: (Amended 37 of 1950 Schedule; 65 of 1976 s.4) But it shall comprise the following particulars- (i) all such property as may belong to or be vested in the bankrupt at the commencement of the bankruptcy or may be acquired by or devolve on him before his discharge; (ii) the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy or before his discharge; (iii) all goods being at the commencement of the bankruptcy in the possession, order or disposition of the bankrupt, in his trade or business, by the consent and permission of the true owner, under such circumstances that he is the reputed owner thereof: Provided that things in action other than debts due or growing due to the bankrupt in the course of his trade or business shall not be deemed goods within the meaning of this section. (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule; 20 of 1948 s.4) [cf. 1914 c. 59 s. 38(1) U.K.] BANKRUPTCY ORDINANCE - SECT 43A After-acquired property VerDate:01/04/1998 (1) Subject to this section, the trustee may by notice in writing claim for the bankrupt's estate any property which has been acquired by, or has devolved upon, the bankrupt since the commencement of the bankruptcy. (2) A notice under this section shall not be served in respect of- (a) any property falling within section 43(2) or (3); or (b) any property which is acquired by, or devolves upon, the bankrupt after his discharge. (3) Subject to subsection (4), upon the service on the bankrupt of a notice under this section the property to which the notice relates shall vest in the trustee as part of the bankrupt's estate; and the trustee's title to that property has relation back to the time at which the property was acquired by, or devolved upon, the bankrupt. (4) Where, whether before or after service of a notice under this section- (a) a person acquires property in good faith, for value and without notice of the bankruptcy; or (b) a banker enters into a transaction in good faith and without such notice, the trustee is not in respect of that property or transaction entitled by virtue of this section to any remedy against that person or banker, or any person whose title to any property derives from that person or banker. (5) References in this section to property do not include any property which, as part of the bankrupt's income, may be the subject of an income payments order under section 43E. (6) For the purposes of this section, an undischarged bankrupt shall submit to the trustee on each anniversary of the making of the bankruptcy order against him, a statement of his earnings during the preceding year and details of any property he acquired during that period. (7) A bankrupt who fails or refuses to comply with subsection (6) is guilty of an offence and is liable to imprisonment for 6 months. (8) The court may refuse to discharge a bankrupt who has not complied with subsection (6). (Added 76 of 1996 s. 31) BANKRUPTCY ORDINANCE - SECT 43B Vesting in trustee of certain items of excess value VerDate:01/04/1998 (1) Where- (a) property is excluded by virtue of section 43(2) from the bankrupt's estate; and (b) it appears to the trustee that the realisable value of the whole or any part of that property exceeds the cost of a reasonable replacement for that property or that part of it, the trustee may by notice in writing claim that property or, as the case may be, that part of it for the bankrupt's estate. (2) Upon the service on the bankrupt of a notice under this section, the property to which the notice relates vests in the trustee as part of the bankrupt's estate; and, except against a purchaser in good faith, for value and without notice of the bankruptcy, the trustee's title to that property has relation back to the commencement of the bankruptcy. (3) The trustee shall apply funds comprised in the estate to the purchase by or on behalf of the bankrupt of a reasonable replacement for any property vested in the trustee under this section; and the duty imposed by this subsection has priority over the obligation of the trustee to distribute the estate. (4) For the purposes of this section, property is a reasonable replacement for other property if it is reasonably adequate for meeting the needs met by the other property. (Added 76 of 1996 s. 31) BANKRUPTCY ORDINANCE - SECT 43C Time-limit for notice under section 43A or 43B VerDate:01/04/1998 (1) Except with the leave of the court, a notice shall not be served- (a) under section 43A, after the end of the period of 42 days beginning with the day on which it first came to the knowledge of the trustee that the property in question had been acquired by, or had devolved upon, the bankrupt; (b) under section 43B, after the end of the period of 42 days beginning with the day on which the property in question first came to the knowledge of the trustee. (2) For the purposes of this section- (a) anything which comes to the knowledge of the trustee is deemed in relation to any successor of his as trustee to have come to the knowledge of the successor at the same time; and (b) anything which comes, otherwise than under paragraph (a), to the knowledge of a person before he is the trustee is deemed to come to his knowledge on his appointment taking effect or, in the case of the Official Receiver, on his becoming trustee. (Added 76 of 1996 s. 31) BANKRUPTCY ORDINANCE - SECT 43D Application by bankrupt or creditor to include or exclude items from the bankrupt's estate VerDate:01/04/1998 (1) Notwithstanding sections 43 to 43B- <* Note - Exp. X-Ref.: Sections 43, 43A, 43B *> (a) the bankrupt; or (b) one of the creditors, may apply to the trustee for the inclusion in or exclusion from the estate of a particular item and the trustee may grant the application or refuse it. (2) Where the bankrupt or any of the creditors objects to the trustee's decision under subsection (1), he may apply to the court and the court may affirm the trustee's decision or reverse it or attach conditions to the original decision. (Added 76 of 1996 s. 31) BANKRUPTCY ORDINANCE - SECT 43E Income payments orders VerDate:01/04/1998 (1) The court may, on the application of the trustee, make an order ("an income payments order") claiming for the bankrupt's estate so much of the income of the bankrupt during the period for which the order is in force as may be specified in the order. (2) The court shall not make an income payments order the effect of which would be to reduce the income of the bankrupt below what appears to the court to be necessary for meeting the reasonable domestic needs of the bankrupt and his family. (3) An income payments order shall, in respect of any payment of income to which it is to apply, either- (a) require the bankrupt to pay the trustee an amount equal to so much of that payment as is claimed by the order; or (b) require the person making the payment to pay so much of it as is so claimed to the trustee, instead of to the bankrupt. (4) Where the court makes an income payments order it may, if it thinks fit, discharge or vary any attachment of earnings order that is for the time being in force to secure payments by the bankrupt. (5) Sums received by the trustee under an income payments order form part of the bankrupt's estate. (6) For the purposes of this section the income of the bankrupt comprises every payment in the nature of income which is from time to time made to him or to which he from time to time becomes entitled, including any payment in respect of the carrying on of any business or in respect of any office or employment. (Added 76 of 1996 s. 31) BANKRUPTCY ORDINANCE - SECT 43F Continuing occupation of family home VerDate:01/04/1998 (1) Notwithstanding anything in this Ordinance, where a bankrupt normally resides in premises which comprise part of his estate, he shall be entitled to continue residing in such premises for a period of 6 months after the making of the bankruptcy order and the court may, on application before the expiry of the 6 month period, make an order extending the entitlement for a further period not exceeding 6 months. (2) Where the bankrupt makes an application for an extension, the court shall assume, unless the circumstances of the case are exceptional, that the interests of the bankrupt's creditors outweigh all other considerations. (Added 76 of 1996 s. 31) BANKRUPTCY ORDINANCE - SECT 44 Provisions as to second bankruptcy VerDate:01/04/1998 (1) Where a second or subsequent bankruptcy order is made against a bankrupt, or where an order is made for the administration in bankruptcy of the estate of a deceased bankrupt, then for the purposes of any proceedings consequent upon any such order the trustee in the last preceding bankruptcy shall be deemed to be a creditor in respect of any unsatisfied balance of the debts provable against the property of the bankrupt in that bankruptcy. (Amended 76 of 1996 s. 73) (2) In the event of a second or subsequent bankruptcy order being made against a bankrupt, or in the event of an order being made for the administration in bankruptcy of the estate of a deceased bankrupt, any property acquired by him since he was last adjudged bankrupt, which at the date when the subsequent petition was presented had not been distributed amongst the creditors in such last preceding bankruptcy, shall subject to any disposition thereof made by the Official Receiver or trustee in that bankruptcy, without knowledge of the presentation of the subsequent petition, and subject to the provisions of section 52, vest in the trustee in the subsequent bankruptcy or administration in bankruptcy as the case may be. (Amended 76 of 1996 ss. 32 and 73) (3) Where the trustee in any bankruptcy receives notice of a subsequent petition in bankruptcy against the bankrupt or after his decease of a petition for the administration of his estate in bankruptcy, the trustee shall hold any property then in his possession which has been acquired by the bankrupt since he was adjudged bankrupt until the subsequent petition has been disposed of, and if on the subsequent petition an order of adjudication or an order for the administration of the estate in bankruptcy is made, he shall transfer all such property or the proceeds thereof (after deducting his costs and expenses) to the trustee in the subsequent bankruptcy or administration in bankruptcy, as the case may be. [cf. 1926 c. 7 s. 3 U.K.] BANKRUPTCY ORDINANCE - SECT 44 Provisions as to second bankruptcy VerDate:30/06/1997 (1) Where a second or subsequent receiving order is made against a bankrupt, or where an order is made for the administration in bankruptcy of the estate of a deceased bankrupt, then for the purposes of any proceedings consequent upon any such order the trustee in the last preceding bankruptcy shall be deemed to be a creditor in respect of any unsatisfied balance of the debts provable against the property of the bankrupt in that bankruptcy. (2) In the event of a second or subsequent receiving order made against a bankrupt being followed by an order adjudging him bankrupt, or in the event of an order being made for the administration in bankruptcy of the estate of a deceased bankrupt, any property acquired by him since he was last adjudged bankrupt, which at the date when the subsequent petition was presented had not been distributed amongst the creditors in such last preceding bankruptcy, shall subject to any disposition thereof made by the Official Receiver or trustee in that bankruptcy, without knowledge of the presentation of the subsequent petition, and subject to the provisions of section 52, vest in the trustee in the subsequent bankruptcy or administration in bankruptcy as the case may be. (3) Where the trustee in any bankruptcy receives notice of a subsequent petition in bankruptcy against the bankrupt or after his decease of a petition for the administration of his estate in bankruptcy, the trustee shall hold any property then in his possession which has been acquired by the bankrupt since he was adjudged bankrupt until the subsequent petition has been disposed of, and if on the subsequent petition an order of adjudication or an order for the administration of the estate in bankruptcy is made, he shall transfer all such property or the proceeds thereof (after deducting his costs and expenses) to the trustee in the subsequent bankruptcy or administration in bankruptcy, as the case may be. [cf. 1926 c. 7 s. 3 U.K.] BANKRUPTCY ORDINANCE - SECT 45 Restriction of rights of creditor under execution or attachment VerDate:10/12/2007 Effect of bankruptcy on antecedent and other transactions (1) Where a creditor has issued execution against the property of a bankrupt or has attached any debt due to him, he shall not be entitled to retain the benefit of the execution or attachment against the trustee of the bankrupt unless he had completed the execution or attachment before the date of the bankruptcy order and before notice of the presentation of any bankruptcy petition by or against the bankrupt. (Amended 76 of 1996 ss. 33 and 73; 18 of 2005 s. 13) (2) For the purposes of this Ordinance- (a) an execution against goods is completed by seizure and sale or by the making of a charging order under section 20 of the High Court Ordinance (Cap 4); (Amended 25 of 1998 s. 2) (b) an attachment of a debt is completed by the receipt of the debt; and (c) an execution against land is completed by seizure, by the appointment of a receiver, or by the making of a charging order under the said section 20. (Replaced 52 of 1987 s. 44) (3) (Repealed 76 of 1996 s. 33) (4) The rights conferred by this section on the trustee in relation to executions against the property of the bankrupt and attachment of debts due to the bankrupt may be set aside by the court in favour of the creditor to such extent and subject to such terms as the court may think fit. (Added 47 of 1984 s. 6. Amended 76 of 1996 s. 33) [cf. 1914 c. 59 s. 40 U.K.] BANKRUPTCY ORDINANCE - SECT 45 Restriction of rights of creditor under execution or attachment VerDate:01/04/1998 Adaptation amendments retroactively made - see 25 of 1998 s. 2 Effect of bankruptcy on antecedent and other transactions (1) Where a creditor has issued execution against the property of a bankrupt or has attached any debt due to him, he shall not be entitled to retain the benefit of the execution or attachment against the trustee in bankruptcy of the bankrupt unless he had completed the execution or attachment before the date of the bankruptcy order and before notice of the presentation of any bankruptcy petition by or against the bankrupt. (Amended 76 of 1996 ss. 33 and 73) (2) For the purposes of this Ordinance- (a) an execution against goods is completed by seizure and sale or by the making of a charging order under section 20 of the High Court Ordinance (Cap 4); (Amended 25 of 1998 s. 2) (b) an attachment of a debt is completed by the receipt of the debt; and (c) an execution against land is completed by seizure, by the appointment of a receiver, or by the making of a charging order under the said section 20. (Replaced 52 of 1987 s. 44) (3) (Repealed 76 of 1996 s. 33) (4) The rights conferred by this section on the trustee in relation to executions against the property of the bankrupt and attachment of debts due to the bankrupt may be set aside by the court in favour of the creditor to such extent and subject to such terms as the court may think fit. (Added 47 of 1984 s. 6. Amended 76 of 1996 s. 33) [cf. 1914 c. 59 s. 40 U.K.] BANKRUPTCY ORDINANCE - SECT 45 Restriction of rights of creditor under execution or attachment VerDate:01/07/1997 Adaptation amendments retroactively made - see 25 of 1998 s. 2 Effect of bankruptcy on antecedent and other transactions (1) Where a creditor has issued execution against the property of a debtor or has attached any debt due to him, he shall not be entitled to retain the benefit of the execution or attachment against the trustee in bankruptcy of the debtor unless he had completed the execution or attachment before the date of the receiving order and before notice of the presentation of any bankruptcy petition by or against the debtor, or of the commission of any available act of bankruptcy by the debtor. (2) For the purposes of this Ordinance- (a) an execution against goods is completed by seizure and sale or by the making of a charging order under section 20 of the High Court Ordinance (Cap 4); (Amended 25 of 1998 s. 2) (b) an attachment of a debt is completed by the receipt of the debt; and (c) an execution against land is completed by seizure, by the appointment of a receiver, or by the making of a charging order under the said section 20. (Replaced 52 of 1987 s. 44) (3) An execution completed as aforesaid is not invalid by reason only of its being an act of bankruptcy, and a person who purchases the goods in good faith under a sale by the bailiff shall in all cases acquire a good title to them against the trustee in bankruptcy. (4) The rights conferred by this section on the trustee in relation to executions against the property of the debtor and attachment of debts due to the debtor may be set aside by the court in favour of the creditor to such extent and subject to such terms as the court may think fit. (Added 47 of 1984 s. 6) [cf. 1914 c. 59 s. 40 U.K.] BANKRUPTCY ORDINANCE - SECT 45 Restriction of rights of creditor under execution or attachment VerDate:30/06/1997 Effect of bankruptcy on antecedent and other transactions (1) Where a creditor has issued execution against the property of a debtor or has attached any debt due to him, he shall not be entitled to retain the benefit of the execution or attachment against the trustee in bankruptcy of the debtor unless he had completed the execution or attachment before the date of the receiving order and before notice of the presentation of any bankruptcy petition by or against the debtor, or of the commission of any available act of bankruptcy by the debtor. (2) For the purposes of this Ordinance- (a) an execution against goods is completed by seizure and sale or by the making of a charging order under section 20 of the Supreme Court Ordinance (Cap. 4); (b) an attachment of a debt is completed by the receipt of the debt; and (c) an execution against land is completed by seizure, by the appointment of a receiver, or by the making of a charging order under the said section 20. (Replaced 52 of 1987 s. 44) (3) An execution completed as aforesaid is not invalid by reason only of its being an act of bankruptcy, and a person who purchases the goods in good faith under a sale by the bailiff shall in all cases acquire a good title to them against the trustee in bankruptcy. (4) The rights conferred by this section on the trustee in relation to executions against the property of the debtor and attachment of debts due to the debtor may be set aside by the court in favour of the creditor to such extent and subject to such terms as the court may think fit. (Added 47 of 1984 s.6) [cf. 1914 c.59 s.40 U.K.] BANKRUPTCY ORDINANCE - SECT 46 Duties of bailiff as to goods taken in execution VerDate:10/12/2007 (1) Where any movable property or negotiable instruments or money of a debtor are taken in execution, and before the receipt or recovery by the judgment creditor of the full amount of the levy, notice is served on the bailiff that a bankruptcy order has been made against the debtor, the bailiff shall on request deliver the movable property, negotiable instruments or money, or any money received in satisfaction or part satisfaction of the execution, to the trustee, but the costs of the execution shall be a fist charge on the property so delivered and the trustee may sell the movable property or negotiable instruments, or an adequate part thereof, or apply the money, for the purpose of satisfying the charge. (Amended 76 of 1996 s. 73) (2) Where, under an execution in respect of a judgment for a sum exceeding $100, the property of a debtor is sold or money is paid in order to avoid sale, the bailiff shall deduct his costs of the execution from the proceeds of sale or the money paid and pay the balance into court, and if within 14 clear days of such sale or payment as aforesaid a bankruptcy petition is presented by or against the debtor, the said balance shall remain in court and if the debtor is adjudged bankrupt the balance shall be paid out to the trustee in the bankruptcy, who shall be entitled to retain the same as against the execution creditor, but otherwise it shall be dealt with as if no bankruptcy petition had been presented. (3) The rights conferred by this section on the trustee in relation to executions against any movable property or negotiable instruments or money of the debtor may be set aside by the court in favour of the creditor to such extent and subject to such terms as the court may think fit. (Added 47 of 1984 s. 7) (Amended 18 of 2005 s. 14) [cf. 1914 c. 59 s. 41(1) U.K.] BANKRUPTCY ORDINANCE - SECT 46 Duties of bailiff as to goods taken in execution VerDate:01/04/1998 (1) Where any movable property or negotiable instruments or money of a debtor are taken in execution, and before the receipt or recovery by the judgment creditor of the full amount of the levy, notice is served on the bailiff that a bankruptcy order has been made against the debtor, the bailiff shall on request deliver the movable property, negotiable instruments or money, or any money received in satisfaction or part satisfaction of the execution, to the Official Receiver, but the costs of the execution shall be a fist charge on the property so delivered and the Official Receiver or trustee may sell the movable property or negotiable instruments, or an adequate part thereof, or apply the money, for the purpose of satisfying the charge. (Amended 76 of 1996 s. 73) (2) Where, under an execution in respect of a judgment for a sum exceeding $100, the property of a debtor is sold or money is paid in order to avoid sale, the bailiff shall deduct his costs of the execution from the proceeds of sale or the money paid and pay the balance into court, and if within 14 clear days of such sale or payment as aforesaid a bankruptcy petition is presented by or against the debtor, the said balance shall remain in court and if the debtor is adjudged bankrupt the balance shall be paid out to the trustee in the bankruptcy, who shall be entitled to retain the same as against the execution creditor, but otherwise it shall be dealt with as if no bankruptcy petition had been presented. (3) The rights conferred by this section on the Official Receiver or trustee in relation to executions against any movable property or negotiable instruments or money of the debtor may be set aside by the court in favour of the creditor to such extent and subject to such terms as the court may think fit. (Added 47 of 1984 s. 7) [cf. 1914 c. 59 s. 41(1) U.K.] BANKRUPTCY ORDINANCE - SECT 46 Duties of bailiff as to goods taken in execution VerDate:30/06/1997 (1) Where any movable property or negotiable instruments or money of a debtor are taken in execution, and before the receipt or recovery by the judgment creditor of the full amount of the levy, notice is served on the bailiff that a receiving order has been made against the debtor, the bailiff shall on request deliver the movable property, negotiable instruments or money, or any money received in satisfaction or part satisfaction of the execution, to the Official Receiver, but the costs of the execution shall be a fist charge on the property so delivered and the Official Receiver or trustee may sell the movable property or negotiable instruments, or an adequate part thereof, or apply the money, for the purpose of satisfying the charge. (2) Where, under an execution in respect of a judgment for a sum exceeding $100, the property of a debtor is sold or money is paid in order to avoid sale, the bailiff shall deduct his costs of the execution from the proceeds of sale or the money paid and pay the balance into court, and if within 14 clear days of such sale or payment as aforesaid a bankruptcy petition is presented by or against the debtor, the said balance shall remain in court and if the debtor is adjudged bankrupt the balance shall be paid out to the trustee in the bankruptcy, who shall be entitled to retain the same as against the execution creditor, but otherwise it shall be dealt with as if no bankruptcy petition had been presented. (3) The rights conferred by this section on the Official Receiver or trustee in relation to executions against any movable property or negotiable instruments or money of the debtor may be set aside by the court in favour of the creditor to such extent and subject to such terms as the court may think fit. (Added 47 of 1984 s.7) [cf. 1914 c. 59 s. 41(1) U.K.] BANKRUPTCY ORDINANCE - SECT 47 (Repealed 76 of 1996 s. 34) VerDate:01/04/1998 BANKRUPTCY ORDINANCE - SECT 47 Avoidance of certain settlements VerDate:30/06/1997 (1) Any settlement of property, not being a settlement made before and in consideration of marriage, or made in favour of a purchaser or incumbrancer in good faith and for valuable consideration, or a settlement made on or for the wife or children of the settlor of property which has accrued to the settlor after marriage in right of his wife, shall, if the settlor becomes bankrupt within 2 years after the date of the settlement, be void against the trustee in the bankruptcy, and shall, if the settlor becomes bankrupt at any subsequent time within 10 years after the date of the settlement, be void against the trustee in the bankruptcy, unless the parties claiming under the settlement can prove that the settlor was at the time of making the settlement able to pay all his debts without the aid of the property comprised in the settlement and that the interest of the settlor in such property passed to the trustee of such settlement on the execution thereof. (2) Any covenant or contract made by any person (hereinafter called the settlor) in consideration of his or her marriage, either for the future payment of money for the benefit of the settlor's wife or husband or children or for the future settlement on or for the settlor's wife or husband or children of property, wherein the settlor had not at the date of the marriage any estate or interest, whether vested or contingent, in possession or remainder, and not being money or property in right of the settlor's wife or husband, shall if the settlor is adjudged bankrupt and the covenant or contract has not been executed at the date of the commencement of his bankruptcy, be void against the trustee in the bankruptcy except so far as it enables the persons entitled under the covenant or contract to claim for dividend in the settlor's bankruptcy under or in respect of the covenant or contract, but any such claim to dividend shall be postponed until all claims of the other creditors for valuable consideration in money or money's worth have been satisfied. (3) Any payment of money (not being payment of premiums on a policy of life assurance), or any transfer of property made by the settlor in pursuance of such a covenant or contract as aforesaid, shall be void against the trustee in the settlor's bankruptcy unless the persons to whom the payment or transfer was made prove- (a) that the payment or transfer was made more than 2 years before the date of the commencement of the bankruptcy; or (b) that at the date of the payment or transfer the settlor was able to pay all his debts without the aid of the money so paid or the property so transferred; or (c) that the payment or transfer was made in pursuance of a covenant or contract to pay or transfer money or property expected to come to the settlor from or on the death of a particular person named in the covenant or contract and was made within 3 months after the money or property came into the possession or under the control of the settlor; but, in the event of any such payment or transfer being declared void, the persons to whom it was made shall be entitled to claim for dividend under or in respect of the covenant or contract in like manner as if it had not been executed at the commencement of the bankruptcy. (4) For the purposes of this section, "settlement" (授產安排) includes any conveyance or transfer of property. [cf. 1914 c. 59 s. 42 U.K.] "settlement" (授產安排) BANKRUPTCY ORDINANCE - SECT 48 Avoidance of general assignments of book debts unless registered VerDate:01/04/1998 (1) Where a person engaged in any trade or business makes an assignment to any other person of his existing or future book debts or any class thereof and is subsequently adjudicated bankrupt, the assignment shall be void against the trustee as regards any book debts which have not been paid before the date of the bankruptcy order, unless the assignment has been registered with the Registrar in a register to be kept by him for that purpose: (Amended 76 of 1996 s. 35) Provided that nothing in this section shall have effect so as to render void any assignment of book debts due at the date of the assignment from specified debtors, or of debts growing due under specified contracts, or any assignment of book debts included in a transfer of a business made bona fide and for value, or in any assignment of assets for the benefit of creditors generally. (2) For the purposes of this section, "assignment" (轉讓) includes assignment by way of security and other charges on book debts. [cf. 1914 c. 59 s. 43 U.K.] "assignment" (轉讓) BANKRUPTCY ORDINANCE - SECT 48 Avoidance of general assignments of book debts unless registered VerDate:30/06/1997 (1) Where a person engaged in any trade or business makes an assignment to any other person of his existing or future book debts or any class thereof and is subsequently adjudicated bankrupt, the assignment shall be void against the trustee as regards any book debts which have not been paid at the commencement of the bankruptcy, unless the assignment has been registered with the Registrar in a register to be kept by him for that purpose: Provided that nothing in this section shall have effect so as to render void any assignment of book debts due at the date of the assignment from specified debtors, or of debts growing due under specified contracts, or any assignment of book debts included in a transfer of a business made bona fide and for value, or in any assignment of assets for the benefit of creditors generally. (2) For the purposes of this section, "assignment" (轉讓) includes assignment by way of security and other charges on book debts. [cf. 1914 c. 59 s. 43 U.K.] "assignment" (轉讓) BANKRUPTCY ORDINANCE - SECT 49 Transactions at an undervalue VerDate:01/04/1998 (1) Subject to this section and sections 51 and 51A, where a debtor is adjudged bankrupt and he has at a relevant time (defined in section 51) entered into a transaction with any person at an undervalue, the trustee may apply to the court for an order under this section. (2) The court shall, on such an application, make such order as it thinks fit for restoring the position to what it would have been if that debtor had not entered into that transaction. (3) For the purposes of this section and sections 51 and 51A, a debtor enters into a transaction with a person at an undervalue if- (a) he makes a gift to that person or he otherwise enters into a transaction with that person on terms that provide for him to receive no consideration; (b) he enters into a transaction with that person in consideration of marriage; or (c) he enters into a transaction with that person for a consideration the value of which, in money or money's worth, is significantly less than the value, in money or money's worth, of the consideration provided by the debtor. (Replaced 76 of 1996 s. 36) BANKRUPTCY ORDINANCE - SECT 49 Avoidance of preference in certain cases VerDate:30/06/1997 (1) Every conveyance or transfer of property, or charge thereon made, every payment made, every obligation incurred and every judicial proceeding taken or suffered by any person unable to pay his debts as they become due from his own money in favour of any creditor or of any person in trust for any creditor, with a view to giving such creditor, or any surety or guarantor for the debt due to such creditor, a preference over the other creditors, shall, if the person making, taking, paying or suffering the same is adjudged bankrupt on a bankruptcy petition presented within 6 months, or in relation to anything made, taken, paid or suffered before the commencement* of the Bankruptcy (Amendment) Ordinance 1984 (47 of 1984) 3 months, after the date of making, taking, paying or suffering the same, be deemed fraudulent and void as against the trustee in the bankruptcy. (*Commencement date - 31 August 1984) (Amended 47 of 1984 s.8) (2) This section shall not affect the rights of any person making title in good faith and for valuable consideration through or under a creditor of the bankrupt. [cf. 1914 c.59 s.44 U.K.] BANKRUPTCY ORDINANCE - SECT 49A (Repealed 76 of 1996 s. 36) VerDate:01/04/1998 BANKRUPTCY ORDINANCE - SECT 49A Liabilities and rights of certain fraudulently preferred persons VerDate:30/06/1997 (1) Where anything made or done after the commencement* of the Bankruptcy (Amendment) Ordinance 1984 (47 of 1984) is void under section 49 as a fraudulent preference of a person interested in property mortgaged or charged to secure the debt, then (without prejudice to any rights or liabilities arising apart from this provision) the person preferred shall be subject to the same liabilities, and shall have the same rights, as if he had undertaken to be personally liable as surety for the debt to the extent of the charge on the property or the value of his interest, whichever is the less. (*Commencement date - 31 August 1984) (2) The value of the said person's interest shall be determined as at the date of the transaction constituting the fraudulent preference, and shall be determined as if the interest were free of all incumbrances other than those to which the charge for the bankrupt's debt was then subject. (3) On any application made to the court with respect to any payment on the ground that the payment was a fraudulent preference of a surety or guarantor, the court shall have jurisdiction to determine any questions with respect to the payment arising between the person to whom payment was made and the surety or guarantor and to grant relief in respect thereof, notwithstanding that it is not necessary so to do in respect of the bankruptcy and for that purpose may give leave to bring in the surety or guarantor as a third party as in the case of an action for the recovery of the sum paid. (4) Subsection (3) shall apply, with the necessary modifications, in relation to transactions other than the payment of money as it applies in relation to payments. (Added 47 of 1984 s.9) BANKRUPTCY ORDINANCE - SECT 50 Unfair preferences VerDate:01/04/1998 (1) Subject to this section and sections 51 and 51A, where a debtor is adjudged bankrupt and he has at a relevant time (defined in section 51) given an unfair preference to any person, the trustee may apply to the court for an order under this section. (2) The court shall, on such an application, make such order as it thinks fit for restoring the position to what it would have been if that debtor had not given that unfair preference. (3) For the purposes of this section and sections 51 and 51A, a debtor gives an unfair preference to a person if- (a) that person is one of the debtor's creditors or a surety or guarantor for any of his debts or other liabilities; and (b) the debtor does anything or suffers anything to be done which (in either case) has the effect of putting that person into a position which, in the event of the debtor's bankruptcy, will be better than the position he would have been in if that thing had not been done. (4) The court shall not make an order under this section in respect of an unfair preference given to any person unless the debtor who gave the unfair preference was influenced in deciding to give it by a desire to produce in relation to that person the effect mentioned in subsection (3)(b). (5) A debtor who has given an unfair preference to a person who, at the time the unfair preference was given, was an associate of his (otherwise than by reason only of being his employee) is presumed, unless the contrary is shown, to have been influenced in deciding to give it by such a desire as is mentioned in subsection (4). (6) The fact that something has been done in pursuance of the order of a court does not, without more, prevent the doing or suffering of that thing from constituting the giving of an unfair preference. (Replaced 76 of 1996 s. 36) BANKRUPTCY ORDINANCE - SECT 50 Effects of lack of notice VerDate:30/06/1997 (1) Subject to the provisions of this Ordinance with respect to the effect of bankruptcy on an execution or attachment and with respect to the avoidance of certain settlements, assignments and preferences, nothing in this Ordinance shall invalidate, in the case of a bankruptcy- (a) any payment by the bankrupt to any of his creditors; (b) any payment or delivery to the bankrupt; (c) any conveyance or assignment by the bankrupt for valuable consideration; (d) any contract, dealing or transaction by or with the bankrupt for valuable consideration: Provided that both the following conditions are complied with, namely- (i) that the payment, delivery, conveyance, assignment, contract, dealing or transaction, as the case may be, takes place before the date of the receiving order; and (ii) that the person (other than the debtor) to, by or with whom the payment, delivery, conveyance, assignment, contract, dealing or transaction was made, executed or entered into has not at the time of the payment, delivery, conveyance, assignment, contract, dealing or transaction notice of any available act of bankruptcy committed by the bankrupt before that time. [cf. 1914 c. 59 s. 45 U.K.] (2) Where any money or property of a bankrupt has, on or after the date of the receiving order but before notice thereof has been gazetted in the prescribed manner, been paid or transferred by a person having possession of it to some other person, and the payment or transfer is under the provisions of this Ordinance void as against the trustee in the bankruptcy, then if the person by whom the payment or transfer was made proves that when it was made he had not had notice of the receiving order, any right of recovery which the trustee may have against him in respect of the money or property shall not be enforced by any legal proceedings except where and in so far as the court is satisfied that it is not reasonably practicable for the trustee to recover in respect of the money or property or of some part thereof from the person to whom it was paid or transferred. [cf. 1926 c.7 s.4 U.K.] BANKRUPTCY ORDINANCE - SECT 51 "Relevant time" under sections 49 and 50 VerDate:01/04/1998 (1) Subject to subsections (2) and (3), the time at which a debtor enters into a transaction at an undervalue or gives an unfair preference is a relevant time if the transaction is entered into or the unfair preference given- (a) in the case of a transaction at an undervalue, at a time in the period of 5 years ending with the day of the presentation of the bankruptcy petition on which the debtor is adjudged bankrupt; (b) in the case of an unfair preference which is not a transaction at an undervalue and is given to a person who is an associate of the debtor (otherwise than by reason only of being his employee), at a time in the period of 2 years ending with that day; and (c) in any other case of an unfair preference which is not a transaction at an undervalue, at a time in the period of 6 months ending with that day. (2) Where a debtor enters into a transaction at an undervalue or gives an unfair preference at a time mentioned in subsection (1)(a), (b) or (c) (not being, in the case of a transaction at an undervalue, a time less than 2 years before the end of the period mentioned in subsection (1)(a)), that time is not a relevant time for the purposes of sections 49 and 50 unless the debtor- (a) is insolvent at that time; or (b) becomes insolvent in consequence of the transaction or preference, but the requirements of this subsection are presumed to be satisfied, unless the contrary is shown, in relation to any transaction at an undervalue which is entered into by a debtor with a person who is an associate of his (otherwise than by reason only of being his employee). (3) For the purposes of subsection (2), a debtor is insolvent if- (a) he is unable to pay his debts as they fall due; or (b) the value of his assets is less than the amount of his liabilities, taking into account his contingent and prospective liabilities. (Replaced 76 of 1996 s. 36) BANKRUPTCY ORDINANCE - SECT 51 Validity of certain payments to bankrupt and assignee VerDate:30/06/1997 A payment of money or delivery of property to a person subsequently adjudged bankrupt or to a person claiming by assignment from him shall, notwithstanding anything in this Ordinance, be a good discharge to the person paying the money or delivering the property if the payment or delivery is made before the actual date on which the receiving order is made and without notice of the presentation of a bankruptcy petition, and is either pursuant to the ordinary course of business or otherwise bona fide. [cf. 1914 c.59 s.46 U.K.] BANKRUPTCY ORDINANCE - SECT 51A Orders under sections 49 and 50 VerDate:01/04/1998 (1) Without prejudice to the generality of section 49(2) or 50(2), an order under either of those sections with respect to a transaction or unfair preference entered into or given by a debtor who is subsequently adjudged bankrupt may (subject as follows)- (a) require any property transferred as part of the transaction, or in connection with the giving of the unfair preference, to be vested in the trustee as part of the estate; (b) require any property to be so vested if it represents in any person's hands the application either of the proceeds of sale of property so transferred or of money so transferred; (c) release or discharge (in whole or in part) any security given by the debtor; (d) require any person to pay, in respect of benefits received by him from the debtor, such sums to the trustee as the court may direct; (e) provide for any surety or guarantor whose obligations to any person were released or discharged (in whole or in part) under the transaction or by the giving of the unfair preference to be under such new or revived obligations to the person as the court thinks appropriate; (f) provide for security to be provided for the discharge of any obligation imposed by or arising under the order, for such an obligation to be charged on any property and for the security or charge to have the same priority as a security or charge released or discharged (in whole or in part) under the transaction or by the giving of the unfair preference; and (g) provide for the extent to which any person whose property is vested by the order in the trustee, or on whom obligations are imposed by the order, is to be able to prove in the bankruptcy for debts or other liabilities which arose from, or were released or discharged (in whole or in part) under or by, the transaction or the giving of the unfair preference. (2) An order under section 49 or 50 may affect the property of, or impose an obligation on, any person whether or not he is the person with whom the debtor in question entered into the transaction or, as the case may be, the person to whom the unfair preference was given; but such an order- (a) shall not prejudice any interest in property which was acquired from a person other than that debtor and was acquired in good faith and for value, or prejudice any interest deriving from such an interest; and (b) shall not require a person who received a benefit from the transaction or unfair preference in good faith and for value to pay a sum to the trustee, except where he was a party to the transaction or the payment is to be in respect of an unfair preference given to that person at a time when he was a creditor of that debtor. (3) Where a person has acquired an interest in property from a person other than the debtor in question, or has received a benefit from the transaction or unfair preference, and at the time of that acquisition or receipt- (a) he had notice of the relevant surrounding circumstances and of the relevant proceedings; or (b) he was an associate of either the debtor in question or the person with whom that debtor entered into the transaction or to whom that debtor gave the unfair preference, then, unless the contrary is shown, it shall be presumed for the purposes of subsection (2)(a) or (b) that the interest was acquired or the benefit was received otherwise than in good faith. (4) Any sums required to be paid to the trustee in accordance with an order under section 49 or 50 shall be comprised in the bankrupt's estate. (5) For the purposes of subsection (3)(a), the relevant surrounding circumstances are (as the case may require)- (a) the fact that the debtor in question entered into the transaction at an undervalue; or (b) the circumstances which amounted to the giving of the unfair preference by the debtor in question. (6) For the purposes of subsection (3)(a), a person has notice of the relevant proceedings if he has notice- (a) of the fact that the petition on which the debtor in question is adjudged bankrupt has been presented; or (b) of the fact that the debtor in question has been adjudged bankrupt. (Added 76 of 1996 s. 36) BANKRUPTCY ORDINANCE - SECT 51B Meaning of "associate" VerDate:01/04/1998 (1) For the purposes of sections 49 to 51A, any question whether a person is an associate of another person shall be determined in accordance with this section. <* Note - Exp. X-Ref.: Sections 49, 49A, 50, 51, 51A *> (2) A person is an associate of a debtor if that person is the debtor's spouse, or is a relative, or the spouse of a relative of the debtor or his spouse. (3) A person is an associate of a debtor with whom he is in partnership, and of the spouse or a relative of any debtor with whom he is in partnership. (4) A person is an associate of a debtor whom he employs or by whom he is employed and for this purpose, any director or other officer of a company shall be treated as employed by that company. (5) A person in his capacity as trustee of a trust is an associate of a debtor if the beneficiaries of the trust include, or the terms of the trust confer a power that may be exercised for the benefit of, that debtor or an associate of that debtor. (6) A company is an associate of a debtor if that debtor has control of it or if that debtor and persons who are his associates together have control of it. (7) For the purposes of this section, a person is a relative of a debtor if he is that debtor's brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant, treating- (a) any relationship of the half blood as a relationship of the whole blood and the step child or adopted child of any person as his child; and (b) an illegitimate child as the legitimate child of his mother and reputed father, and references in this section to a spouse shall include a former spouse. (8) For the purposes of this section, a debtor shall be taken to have control of a company if- (a) the directors of the company or of another company which has control of it (or any of them) are accustomed to act in accordance with his directions or instructions, but a debtor shall not be considered to have control of a company by reason only that the directors act on advice given by him in a professional capacity; or (b) he is entitled to exercise, or control the exercise of, 1/3 or more of the voting power at any general meeting of the company or of another company which has control of it, and where 2 or more persons together satisfy either of the above conditions, they shall be taken to have control of the company. (9) In this section, "company" (公司) includes any body corporate (whether incorporated in Hong Kong or elsewhere); and references to directors and other officers of a company and to voting power at any general meeting of a company shall have effect with any necessary modifications. (Added 76 of 1996 s. 36) "company" (公司) BANKRUPTCY ORDINANCE - SECT 52 Dealings with undischarged bankrupt VerDate:01/04/1998 (1) (Repealed 76 of 1996 s. 37) (2) Where any individual, company or firm has ascertained that a person having a deposit, whether a deposit in respect of capital or not, or a credit balance, with such individual, company or firm is an undischarged bankrupt, then it shall be the duty of such individual, company or firm forthwith to inform the Official Receiver and the trustee in the bankruptcy of the existence of the deposit or credit balance, and such individual, company or firm shall not make any payment out of or in respect of the deposit or credit balance except under an order of the court or in accordance with instructions from the Official Receiver or the trustee in the bankruptcy. (3) In case of any contravention of the provisions of subsection (2) the individual, or the directors and officers of the company, or the partners and manager of the firm, as the case may be, shall be liable on summary conviction to a fine of $1000 and to imprisonment for 6 months. [cf. 1914 c. 59 s. 47 U.K.] BANKRUPTCY ORDINANCE - SECT 52 Dealings with undischarged bankrupt VerDate:30/06/1997 (1) All transactions by a bankrupt with any person dealing with him bona fide and for value, in respect of property, whether leasehold or pure personality, acquired by the bankrupt after the adjudication, shall, if completed before any intervention by the trustee, be valid against the trustee, and any estate or interest in such property which by virtue of this Ordinance is vested in the trustee shall determine and pass in such manner and to such extent as may be required for giving effect to any such transaction. For the purposes of this subsection, the receipt of any money, security or negotiable instrument from or by the order or direction of a bankrupt by his banker, and any payment and any delivery of any security or negotiable instrument made to or by the order or direction of a bankrupt by his banker, shall be deemed to be a transaction by the bankrupt with such banker dealing with him for value. (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule) (2) Where any individual, company or firm has ascertained that a person having a deposit, whether a deposit in respect of capital or not, or a credit balance, with such individual, company or firm is an undischarged bankrupt, then it shall be the duty of such individual, company or firm forthwith to inform the Official Receiver and the trustee in the bankruptcy of the existence of the deposit or credit balance, and such individual, company or firm shall not make any payment out of or in respect of the deposit or credit balance except under an order of the court or in accordance with instructions from the Official Receiver or the trustee in the bankruptcy. (3) In case of any contravention of the provisions of subsection (2) the individual, or the directors and officers of the company, or the partners and manager of the firm, as the case may be, shall be liable on summary conviction to a fine of $1000 and to imprisonment for 6 months. [cf. 1914 c.59 s.47 U.K.] BANKRUPTCY ORDINANCE - SECT 53 Possession of property by trustee VerDate:30/06/1997 Realization of property (1) The trustee shall as soon as may be take possession of the deeds, books and documents of the bankrupt and all other parts of his property capable of manual delivery. (2) The trustee shall, in relation to and for the purpose of acquiring or retaining possession of the property of the bankrupt, be in the same position as if he were a receiver of the property appointed by the court, and the court may on his application enforce such acquisition or retention accordingly. (3) Where any part of the property of the bankrupt consists of stock, shares in ships, shares, or any other property transferable in the books of any company, office or person, the trustee may exercise the right to transfer the property to the same extent as the bankrupt might have exercised it if he had not become bankrupt. (4) Where any part of the property of the bankrupt consists of things in action, such things shall be deemed to have been duly assigned to the trustee. (5) Subject to the provisions of this Ordinance with respect to property acquired by a bankrupt after adjudication, any treasurer or other officer, or any banker, attorney, clerk, servant, comprador, employer or agent, of a bankrupt, shall pay and deliver to the trustee all money and securities in his possession or power, which he is not by law entitled to retain as against the bankrupt or the trustee. If he does not, he shall be guilty of a contempt of court and may be punished accordingly on the application of the trustee. [cf. 1914 c. 59 s. 48 U.K.] BANKRUPTCY ORDINANCE - SECT 54 Seizure of property of bankrupt VerDate:01/04/1998 Any person acting under warrant of the court may seize any part of the property of a bankrupt in the custody or possession of the bankrupt or of any other person, and with a view to such seizure may break open any house, building or room of the bankrupt where the bankrupt is supposed to be, or any building or receptacle of the bankrupt where any of his property is supposed to be; and where the court is satisfied that there is reason to believe that property of a bankrupt is concealed in a house or place not belonging to him, the court may if it thinks fit grant a search warrant to any constable or officer of the court, who may execute it according to its tenor. (Amended 76 of 1996 s. 38) [cf. 1914 c. 59 s. 49 U.K.] BANKRUPTCY ORDINANCE - SECT 54 Seizure of property of bankrupt VerDate:30/06/1997 Any person acting under warrant of the court may seize any part of the property of a bankrupt, or of a debtor against whom a receiving order has been made, in the custody or possession of the bankrupt or the debtor or of any other person, and with a view to such seizure may break open any house, building or room of the bankrupt or the debtor where the bankrupt or the debtor is supposed to be, or any building or receptacle of the bankrupt or the debtor where any of his property is supposed to be; and where the court is satisfied that there is reason to believe that property of a bankrupt, or of a debtor against whom a receiving order has been made, is concealed in a house or place not belonging to him, the court may if it thinks fit grant a search warrant to any constable or officer of the court, who may execute it according to its tenor. (See Form 108) [cf. 1914 c.59 s.49 U.K.] BANKRUPTCY ORDINANCE - SECT 55 Sale of property out of Hong Kong VerDate:30/06/1997 Where the bankrupt is possessed of any property out of Hong Kong, the trustee shall require him to join in selling the same for the benefit of the creditors and to sign all necessary authorities, powers, deeds and documents for the purpose, and if and so often as the bankrupt refuses to do so he may be punished for a contempt of court. (Amended 47 of 1984 s. 16) BANKRUPTCY ORDINANCE - SECT 56 (Repealed 76 of 1996 s. 39) VerDate:01/04/1998 BANKRUPTCY ORDINANCE - SECT 56 Appropriation of portion of pay, etc. to creditors VerDate:30/06/1997 (1) Where a bankrupt is an officer of the navy, army or air force, or an officer or clerk or otherwise employed or engaged in the civil service of the Crown, or where a bankrupt is in receipt of any pay or pension from the Government or is entitled to any allowance or compensation granted by the Government, the trustee shall receive for distribution among the creditors so much of the bankrupt's pay, salary, pension, allowance or compensation as the court, with the consent of the Governor, on the application of the trustee, may direct. (See Forms 118, 120) (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule) (2) Where a bankrupt is in receipt of a salary or income other than as aforesaid, the court, on the application of the trustee, may from time to time make such order as it thinks just for the payment of the salary or income or of any part thereof to the trustee, to be applied by him in such manner as the court may direct. (See Form 121) (3) Nothing in this section shall take away or abridge any power to dismiss a bankrupt or to declare the pay, pension, allowance, compensation, salary or income of any bankrupt to be forfeited. [cf. 1914 c.59 s.51 U.K.] BANKRUPTCY ORDINANCE - SECT 57 (Repealed) VerDate:30/06/1997 (Repealed 27 of 1971 s. 15) BANKRUPTCY ORDINANCE - SECT 58 Vesting and transfer of property VerDate:10/12/2007 (1) On the making of a bankruptcy order, the property of the bankrupt shall vest in the Official Receiver. (Replaced 18 of 2005 s. 15) (1A) On the appointment of a person other than the Official Receiver as provisional trustee, the property shall forthwith pass to and vest in the provisional trustee appointed. (Added 18 of 2005 s. 15) (1B) Save in sections 15(4), 17, 17A, 17B, 42(3), 58(2), 60, 79, 80, 81, 85, 85A, 96(1) and 112A, the provisional trustee shall, unless the context otherwise requires, be regarded as the trustee for the purposes of this Ordinance. (Added 18 of 2005 s. 15) (2) On the appointment of a trustee the property shall forthwith pass to and vest in the trustee appointed. (3) The property of the bankrupt shall pass from trustee to trustee, including under that term the Official Receiver when he fills the office of trustee, and shall vest in the trustee for the time being during his continuance in office, without any conveyance, assignment or transfer whatever. [cf. 1914 c. 59 s. 53 U.K.] BANKRUPTCY ORDINANCE - SECT 58 Vesting and transfer of property VerDate:30/06/1997 (1) Until a trustee is appointed the Official Receiver shall be the trustee for the purposes of this Ordinance, and immediately on a debtor being adjudged bankrupt the property of the bankrupt shall vest in the trustee. (2) On the appointment of a trustee the property shall forthwith pass to and vest in the trustee appointed. (3) The property of the bankrupt shall pass from trustee to trustee, including under that term the Official Receiver when he fills the office of trustee, and shall vest in the trustee for the time being during his continuance in office, without any conveyance, assignment or transfer whatever. [cf. 1914 c. 59 s. 53 U.K.] BANKRUPTCY ORDINANCE - SECT 59 Disclaimer of onerous property VerDate:10/12/2007 (1) Where any part of the property of the bankrupt consists of land of any tenure burdened with onerous covenants, of shares or stock in companies, of unprofitable contracts, or of any other property that is unsaleable, or not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act or to the payment of any sum of money, the trustee, notwithstanding that he has endeavoured to sell or has taken possession of the property or exercised any act of ownership in relation thereto, but subject to the provisions of this section, may, by writing signed by him, at any time within 12 months after the first appointment of a trustee or such extended period as may be allowed by the court, disclaim the property: Provided that, where any such property has not come to the knowledge of the trustee within 1 month after such appointment, he may disclaim such property at any time within 12 months after he has become aware thereof or such extended period as may be allowed by the court. (2) The disclaimer shall operate to determine, as from the date of disclaimer, the rights, interests and liabilities of the bankrupt and his property in or in respect of the property disclaimed, and shall also discharge the trustee from all personal liability in respect of the property disclaimed as from the date when the property vested in him, but shall not, except so far as is necessary for the purpose of releasing the bankrupt and his property and the trustee from liability, affect the rights or liabilities of any other person. (3) A trustee shall not be entitled to disclaim a lease without the leave of the court, except in any cases which may be prescribed by general rules, and the court may, before or on granting such leave, require such notices to be given to persons interested, and impose such terms as a condition of granting leave, and make such orders with respect to fixtures, tenant's improvements and other matters arising out of the tenancy, as the court thinks just. (4) The trustee shall not be entitled to disclaim any property in pursuance of this section in any case where an application in writing has been made to the trustee by any person interested in the property requiring him to decide whether he will disclaim or not and the trustee has for a period of 28 days after the receipt of the application, or such extended period as may be allowed by the court, declined or neglected to give notice whether he disclaims the property or not; and in the case of a contract, if the trustee after such application as aforesaid does not within the said period or extended period disclaim the contract, he shall be deemed to have adopted it. (5) The court may, on the application of any person who is, as against the trustee, entitled to the benefit or subject to the burden of a contract made with the bankrupt, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non-performance of the contract, or otherwise, as to the court may seem equitable, and any damages payable under the order to any such person may be proved by him as a debt under the bankruptcy. (6) The court may, on application by any person claiming either to have any interest in any disclaimed property or to be under any liability not discharged by this Ordinance in respect of any disclaimed property, and on hearing such persons as it thinks fit, make an order for the vesting of the property in or delivery thereof to any person entitled thereto, or to whom it may seem just that the same should be delivered by way of compensation for such liability as aforesaid, or a trustee for him, and on such terms as the court thinks just; and on any such vesting order being made, the property comprised therein shall vest accordingly in the person therein named in that behalf without any conveyance or assignment for the purpose: Provided that where the property disclaimed is of a leasehold nature the court shall not make a vesting order in favour of any person claiming under the bankrupt, whether as under-lessee or as a person entitled to a mortgage except upon the terms of making that person- (a) subject to the same liabilities and obligations as the bankrupt was subject to under the lease in respect of the property at the date when the bankruptcy petition was filed; or (b) if the court thinks fit, subject only to the same liabilities and obligations as if the lease had been assigned to that person at that date, and in either event (if the case so requires) subject only to the same liabilities and obligations as if the lease had comprised only the property comprised in the vesting order; and any under-lessee or person entitled to a mortgage who declines to accept a vesting order upon such terms shall be excluded from all interest in and security upon the property, and if there is no person claiming under the bankrupt who is willing to accept an order upon such terms, the court shall have power to vest the bankrupt's estate and interest in the property in any person liable either personally or in a representative character and either alone or jointly with the bankrupt to perform the lessee's covenants in the lease, freed and discharged from all estates, incumbrances and interests created therein by the bankrupt. (Amended 47 of 1984 s.10) (7) Where on the release, removal, resignation or death of a trustee the Official Receiver is acting as trustee, he may disclaim any property which might be disclaimed by a trustee under the foregoing provisions, notwithstanding that the time prescribed by this section for such disclaimer has expired, but such power of disclaimer shall be exercisable only within 12 months after the Official Receiver has become trustee in the circumstances aforesaid or has become aware of the existence of such property, whichever period may last expire. (Amended 18 of 2005 s. 16) (8) Any person injured by the operation of a disclaimer under this section shall be deemed to be a creditor of the bankrupt to the extent of the injury and may accordingly prove the same as a debt under the bankruptcy. [cf. 1914 c. 59 s. 54 U.K.] BANKRUPTCY ORDINANCE - SECT 59 Disclaimer of onerous property VerDate:30/06/1997 (1) Where any part of the property of the bankrupt consists of land of any tenure burdened with onerous covenants, of shares or stock in companies, of unprofitable contracts, or of any other property that is unsaleable, or not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act or to the payment of any sum of money, the trustee, notwithstanding that he has endeavoured to sell or has taken possession of the property or exercised any act of ownership in relation thereto, but subject to the provisions of this section, may, by writing signed by him, at any time within 12 months after the first appointment of a trustee or such extended period as may be allowed by the court, disclaim the property: Provided that, where any such property has not come to the knowledge of the trustee within 1 month after such appointment, he may disclaim such property at any time within 12 months after he has become aware thereof or such extended period as may be allowed by the court. (2) The disclaimer shall operate to determine, as from the date of disclaimer, the rights, interests and liabilities of the bankrupt and his property in or in respect of the property disclaimed, and shall also discharge the trustee from all personal liability in respect of the property disclaimed as from the date when the property vested in him, but shall not, except so far as is necessary for the purpose of releasing the bankrupt and his property and the trustee from liability, affect the rights or liabilities of any other person. (3) A trustee shall not be entitled to disclaim a lease without the leave of the court, except in any cases which may be prescribed by general rules, and the court may, before or on granting such leave, require such notices to be given to persons interested, and impose such terms as a condition of granting leave, and make such orders with respect to fixtures, tenant's improvements and other matters arising out of the tenancy, as the court thinks just. (4) The trustee shall not be entitled to disclaim any property in pursuance of this section in any case where an application in writing has been made to the trustee by any person interested in the property requiring him to decide whether he will disclaim or not and the trustee has for a period of 28 days after the receipt of the application, or such extended period as may be allowed by the court, declined or neglected to give notice whether he disclaims the property or not; and in the case of a contract, if the trustee after such application as aforesaid does not within the said period or extended period disclaim the contract, he shall be deemed to have adopted it. (5) The court may, on the application of any person who is, as against the trustee, entitled to the benefit or subject to the burden of a contract made with the bankrupt, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non-performance of the contract, or otherwise, as to the court may seem equitable, and any damages payable under the order to any such person may be proved by him as a debt under the bankruptcy. (6) The court may, on application by any person claiming either to have any interest in any disclaimed property or to be under any liability not discharged by this Ordinance in respect of any disclaimed property, and on hearing such persons as it thinks fit, make an order for the vesting of the property in or delivery thereof to any person entitled thereto, or to whom it may seem just that the same should be delivered by way of compensation for such liability as aforesaid, or a trustee for him, and on such terms as the court thinks just; and on any such vesting order being made, the property comprised therein shall vest accordingly in the person therein named in that behalf without any conveyance or assignment for the purpose: Provided that where the property disclaimed is of a leasehold nature the court shall not make a vesting order in favour of any person claiming under the bankrupt, whether as under-lessee or as a person entitled to a mortgage except upon the terms of making that person- (a) subject to the same liabilities and obligations as the bankrupt was subject to under the lease in respect of the property at the date when the bankruptcy petition was filed; or (b) if the court thinks fit, subject only to the same liabilities and obligations as if the lease had been assigned to that person at that date, and in either event (if the case so requires) subject only to the same liabilities and obligations as if the lease had comprised only the property comprised in the vesting order; and any under-lessee or person entitled to a mortgage who declines to accept a vesting order upon such terms shall be excluded from all interest in and security upon the property, and if there is no person claiming under the bankrupt who is willing to accept an order upon such terms, the court shall have power to vest the bankrupt's estate and interest in the property in any person liable either personally or in a representative character and either alone or jointly with the bankrupt to perform the lessee's covenants in the lease, freed and discharged from all estates, incumbrances and interests created therein by the bankrupt. (Amended 47 of 1984 s.10) (7) Where on the release, removal, resignation or death of a trustee in bankruptcy the Official Receiver is acting as trustee, he may disclaim any property which might be disclaimed by a trustee under the foregoing provisions, notwithstanding that the time prescribed by this section for such disclaimer has expired, but such power of disclaimer shall be exercisable only within 12 months after the Official Receiver has become trustee in the circumstances aforesaid or has become aware of the existence of such property, whichever period may last expire. (8) Any person injured by the operation of a disclaimer under this section shall be deemed to be a creditor of the bankrupt to the extent of the injury and may accordingly prove the same as a debt under the bankruptcy. [cf. 1914 c. 59 s. 54 U.K.] BANKRUPTCY ORDINANCE - SECT 60 Powers of provisional trustee and trustee to deal with property of the bankrupt VerDate:10/12/2007 (1) Subject to the provisions of this Ordinance and to any order of the court, a trustee or the Official Receiver when acting as provisional trustee may do all or any of the following things- (Amended 18 of 2005 s. 17) (aa) take into his custody or under his control all the property to which the bankrupt is or appears to be entitled; (Added 18 of 2005 s. 17) (a) sell all or any part of the property of the bankrupt (including the goodwill of the business, if any, and the book debts due or growing due to the bankrupt), by public auction or private contract, with power to transfer the whole thereof to any person or company, or to sell the same in parcels, and any transfer of a business of a bankrupt by the trustee or the Official Receiver when acting as provisional trustee shall be deemed to be exempted from the provisions of the Transfer of Businesses (Protection of Creditors) Ordinance (Cap 49); (Amended 18 of 2005 s. 17) (b) give receipts for any money received by him, which receipts shall effectually discharge the person paying the money from all responsibility in respect of the application thereof; (c) prove, rank, claim and draw a dividend in respect of any debt due to the bankrupt; (d) exercise any powers the capacity to exercise which is vested in the trustee under this Ordinance and execute any powers of attorney, deeds and other instruments for the purpose of carrying into effect the provisions of this Ordinance; (e) subject to section 61, do all such other things as may be necessary for administering the estate and distributing its assets. (Added 76 of 1996 s. 40) (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule; 20 of 1948 s. 4) (2) Notwithstanding any other provisions of this Ordinance but subject to subsections (3) and (4), a provisional trustee other than the Official Receiver may do all or any of the following things- (a) take into his custody or under his control all the property to which the bankrupt is or appears to be entitled; (b) sell or dispose of perishable goods, or any property (other than derivatives, warrants, options, shares or choses in action) the estimated value of which is less than $100000 and is likely to significantly diminish if such property is not immediately sold or disposed of; (c) subject to section 61, do all such other things as may be necessary for protecting or preserving the bankrupt’s property; (d) exercise any power the capacity to exercise which is vested in the provisional trustee under this Ordinance and execute any powers of attorney, deeds and other instruments for the purpose of carrying into effect the provisions of this Ordinance; (e) subject to section 61, do all such other things as may be necessary for administering the estate pending the appointment of a trustee. (Added 18 of 2005 s. 17) (3) A provisional trustee other than the Official Receiver may also exercise a power under subsection (1) if the power is exercised under an order of the court or with the prior approval of the Official Receiver. (Added 18 of 2005 s. 17) (4) A provisional trustee other than the Official Receiver shall not sell or dispose of anything under subsection (2)(b) to a person who is an associate of the bankrupt, unless the sale or disposal is under an order of the court or with the prior approval of the Official Receiver. (Added 18 of 2005 s. 17) (5) For the purposes of subsection (4), any question whether a person is an associate of another person shall be determined in accordance with section 51B as if- (a) that section were applicable also for the purposes of such determination; and (b) references to the “debtor” in that section were references to the “bankrupt” in subsection (4). (Added 18 of 2005 s. 17) (6) The Official Receiver shall not be personally liable for any costs and charges incurred by any person as a result of any refusal to grant approval under subsection (3) or (4). (Added 18 of 2005 s. 17) [cf. 1914 c. 59 s. 55 U.K.] BANKRUPTCY ORDINANCE - SECT 60 Powers of trustee to deal with property VerDate:01/04/1998 Subject to the provisions of this Ordinance and to any order of the court, the trustee may do all or any of the following things- (a) sell all or any part of the property of the bankrupt (including the goodwill of the business, if any, and the book debts due or growing due to the bankrupt), by public auction or private contract, with power to transfer the whole thereof to any person or company, or to sell the same in parcels, and any transfer of a business of a bankrupt by the Official Receiver or trustee shall be deemed to be exempted from the provisions of the Transfer of Businesses (Protection of Creditors) Ordinance (Cap 49); (b) give receipts for any money received by him, which receipts shall effectually discharge the person paying the money from all responsibility in respect of the application thereof; (c) prove, rank, claim and draw a dividend in respect of any debt due to the bankrupt; (d) exercise any powers the capacity to exercise which is vested in the trustee under this Ordinance and execute any powers of attorney, deeds and other instruments for the purpose of carrying into effect the provisions of this Ordinance. (e) subject to section 61, do all such other things as may be necessary for administering the estate and distributing its assets. (Added 76 of 1996 s. 40) (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule; 20 of 1948 s. 4) [cf. 1914 c. 59 s. 55 U.K.] BANKRUPTCY ORDINANCE - SECT 60 Powers of trustee to deal with property VerDate:30/06/1997 Subject to the provisions of this Ordinance and to any order of the court, the trustee may do all or any of the following things- (a) sell all or any part of the property of the bankrupt (including the goodwill of the business, if any, and the book debts due or growing due to the bankrupt), by public auction or private contract, with power to transfer the whole thereof to any person or company, or to sell the same in parcels, and any transfer of a business of a bankrupt by the Official Receiver or trustee shall be deemed to be exempted from the provisions of the Transfer of Businesses (Protection of Creditors) Ordinance (Cap. 49); (b) give receipts for any money received by him, which receipts shall effectually discharge the person paying the money from all responsibility in respect of the application thereof; (c) prove, rank, claim and draw a dividend in respect of any debt due to the bankrupt; (d) exercise any powers the capacity to exercise which is vested in the trustee under this Ordinance and execute any powers of attorney, deeds and other instruments for the purpose of carrying into effect the provisions of this Ordinance. (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule; 20 of 1948 s.4) [cf. 1914 c.59 s.55 U.K.] BANKRUPTCY ORDINANCE - SECT 61 Powers exercisable by trustee with permission of creditors' committee VerDate:01/04/1998 The trustee may, with the permission of the creditors' committee, do all or any of the following things- (Amended 76 of 1996 s. 74) (a) carry on the business of the bankrupt so far as may be necessary for the beneficial winding up of the same or allow the bankrupt to restructure the business in accordance with conditions determined by the trustee where such restructuring is in the interests of the creditors and, for the purpose of such restructuring, the trustee may permit the debtor to retain any leasehold interest in property in which his business is situated; (Amended 76 of 1996 s. 41) (b) bring, institute or defend any action or other legal proceeding relating to the property of the bankrupt; (c) employ a solicitor or other agent to take any proceedings or do any business which may be sanctioned by the creditors' committee; (Amended 76 of 1996 s. 74) (d) accept as the consideration for the sale of any property of the bankrupt a sum of money payable at a future time subject to such stipulations as to security and otherwise as the committee think fit; (e) mortgage or pledge any part of the property of the bankrupt for the purpose of raising money for the payment of his debts; (f) refer any dispute to arbitration, or compromise any debts, claims and liabilities, whether present or future, certain or contingent, liquidated or unliquidated, subsisting or supposed to subsist between the bankrupt and any person who may have incurred any liability to the bankrupt, on the receipt of such sums, payable at such times and generally on such terms as may be agreed on; (g) make such compromise or other arrangement as may be thought expedient with creditors or persons claiming to be creditors in respect of any debts provable under the bankruptcy; (h) make such compromise or other arrangement as may be thought expedient with respect to any claim arising out of or incidental to the property of the bankrupt, made or capable of being made on the trustee by any person or by the trustee on any person; (i) divide in its existing form amongst the creditors, according to its estimated value, any property which from its peculiar nature or other special circumstances cannot be readily or advantageously sold; (j) where any right, option or other power forms part of the bankrupt's estate, make payments or incur liabilities for the purpose of obtaining any property which is the subject of the right, option or power; (Added 76 of 1996 s. 41) (k) if, after taking expert advice, he considers it to be in the interest of the estate to delay conversion of foreign currency into Hong Kong dollars, delay such conversion for the period he considers appropriate, and, where there is no committee, may do so with the concurrence of the court. (Added 76 of 1996 s. 41) The permission given for the purposes of this section shall not be general permission to do all or any of the above-mentioned things but shall only be a permission to do the particular thing or things for which permission is sought in the specified case or cases. (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule; 20 of 1948 s. 4) [cf. 1914 c. 59 s. 56 U.K.] BANKRUPTCY ORDINANCE - SECT 61 Powers exercisable by trustee with permission of committee of inspection VerDate:30/06/1997 The trustee may, with the permission of the committee of inspection, do all or any of the following things- (a) carry on the business of the bankrupt so far as may be necessary for the beneficial winding up of the same; (b) bring, institute or defend any action or other legal proceeding relating to the property of the bankrupt; (c) employ a solicitor or other agent to take any proceedings or do any business which may be sanctioned by the committee of inspection; (d) accept as the consideration for the sale of any property of the bankrupt a sum of money payable at a future time subject to such stipulations as to security and otherwise as the committee think fit; (e) mortgage or pledge any part of the property of the bankrupt for the purpose of raising money for the payment of his debts; (f) refer any dispute to arbitration, or compromise any debts, claims and liabilities, whether present or future, certain or contingent, liquidated or unliquidated, subsisting or supposed to subsist between the bankrupt and any person who may have incurred any liability to the bankrupt, on the receipt of such sums, payable at such times and generally on such terms as may be agreed on; (g) make such compromise or other arrangement as may be thought expedient with creditors or persons claiming to be creditors in respect of any debts provable under the bankruptcy; (h) make such compromise or other arrangement as may be thought expedient with respect to any claim arising out of or incidental to the property of the bankrupt, made or capable of being made on the trustee by any person or by the trustee on any person; (i) divide in its existing form amongst the creditors, according to its estimated value, any property which from its peculiar nature or other special circumstances cannot be readily or advantageously sold. (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule; 20 of 1948 s.4) The permission given for the purposes of this section shall not be general permission to do all or any of the above-mentioned things but shall only be a permission to do the particular thing or things for which permission is sought in the specified case or cases. [cf. 1914 c. 59 s. 56 U.K.] BANKRUPTCY ORDINANCE - SECT 61A Control of trustee by court VerDate:01/04/1998 The exercise by the trustee of the powers conferred by sections 60 and 61 shall be subject to the control of the court, and any creditor may apply to the court with respect to any exercise or proposed exercise of any of those powers. (Added 76 of 1996 s. 42) BANKRUPTCY ORDINANCE - SECT 62 Power to allow bankrupt to manage property VerDate:01/04/1998 The trustee, with the permission of the creditors' committee, may appoint the bankrupt himself to superintend the management of the property of the bankrupt or of any part thereof, or to carry on the trade (if any) of the bankrupt for the benefit of his creditors, and in any other respect to aid in administering the property, in such manner and on such terms as the trustee may direct. (Amended 76 of 1996 s. 74) [cf. 1914 c. 59 s. 57 U.K.] BANKRUPTCY ORDINANCE - SECT 62 Power to allow bankrupt to manage property VerDate:30/06/1997 The trustee, with the permission of the committee of inspection, may appoint the bankrupt himself to superintend the management of the property of the bankrupt or of any part thereof, or to carry on the trade (if any) of the bankrupt for the benefit of his creditors, and in any other respect to aid in administering the property, in such manner and on such terms as the trustee may direct. [cf. 1914 c.59 s.57 U.K.] BANKRUPTCY ORDINANCE - SECT 63 Allowance to bankrupt for maintenance or service VerDate:01/04/1998 The trustee may from time to time, with the permission of the creditors' committee, make such allowance as he may think just to the bankrupt out of his property for the support of the bankrupt and his family, or in consideration of his services if he is engaged in winding up his estate, but any such allowance may be reduced by the court. (Amended 76 of 1996 s. 74) [cf. 1914 c. 59 s. 58 U.K.] BANKRUPTCY ORDINANCE - SECT 63 Allowance to bankrupt for maintenance or service VerDate:30/06/1997 The trustee may from time to time, with the permission of the committee of inspection, make such allowance as he may think just to the bankrupt out of his property for the support of the bankrupt and his family, or in consideration of his services if he is engaged in winding up his estate, but any such allowance may be reduced by the court. [cf. 1914 c.59 s.58 U.K.] BANKRUPTCY ORDINANCE - SECT 64 Right of trustee to inspect goods pawned, etc. VerDate:10/12/2007 Where any goods of a debtor against whom a bankruptcy order has been made are held by any person by way of pledge, pawn or other security, it shall be lawful for the trustee, after giving notice in writing of his intention to do so, to inspect the goods, and where such notice has been given, such person as aforesaid shall not be entitled to realize his security until he has given the trustee a reasonable opportunity of inspecting the goods and of exercising his right of redemption if he thinks fit to do so. (Amended 76 of 1996 s. 73; 18 of 2005 s. 18) [cf. 1914 c. 59 s. 59 U.K.] BANKRUPTCY ORDINANCE - SECT 64 Right of trustee to inspect goods pawned, etc. VerDate:01/04/1998 Where any goods of a debtor against whom a bankruptcy order has been made are held by any person by way of pledge, pawn or other security, it shall be lawful for the Official Receiver or trustee, after giving notice in writing of his intention to do so, to inspect the goods, and where such notice has been given, such person as aforesaid shall not be entitled to realize his security until he has given the trustee a reasonable opportunity of inspecting the goods and of exercising his right of redemption if he thinks fit to do so. (Amended 76 of 1996 s. 73) [cf. 1914 c. 59 s. 59 U.K.] BANKRUPTCY ORDINANCE - SECT 64 Right of trustee to inspect goods pawned, etc. VerDate:30/06/1997 Where any goods of a debtor against whom a receiving order has been made are held by any person by way of pledge, pawn or other security, it shall be lawful for the Official Receiver or trustee, after giving notice in writing of his intention to do so, to inspect the goods, and where such notice has been given, such person as aforesaid shall not be entitled to realize his security until he has given the trustee a reasonable opportunity of inspecting the goods and of exercising his right of redemption if he thinks fit to do so. [cf. 1914 c.59 s.59 U.K.] BANKRUPTCY ORDINANCE - SECT 65 Limitation of trustee's powers in relation to copyright VerDate:30/06/1997 Where the property of a bankrupt comprises the copyright in any work or any interest in such copyright and he is liable to pay to the author of the work royalties or a share of the profits in respect thereof, the trustee shall not be entitled to sell or authorize the sale of any copies of the work, or to perform or authorize the performance of the work, except on the terms of paying to the author such sums by way of royalty or share of the profits as would have been payable by the bankrupt, nor shall he, without the consent of the author or of the court, be entitled to assign the right or transfer the interest or to grant any interest in the right by licence, except upon terms which will secure to the author payments by way of royalty or share of the profits at a rate not less than that which the bankrupt was liable to pay. [cf. 1914 c. 59 s. 60 U.K.] BANKRUPTCY ORDINANCE - SECT 66 Protection of Official Receiver and trustee from personal liability in certain cases VerDate:01/04/1998 Where the Official Receiver or trustee has seized or disposed of any goods, chattels, property or other effects in the possession or on the premises or under the control of a debtor against whom a bankruptcy order has been made and it is thereafter made to appear that the said goods, chattels, property or other effects were not at the date of the bankruptcy order the property of the debtor, the Official Receiver or trustee shall not be personally liable for any loss or damage arising from such seizure or disposal sustained by any person claiming such property nor for the costs of any proceedings taken to establish a claim thereto, unless the court is of opinion that the Official Receiver or trustee has been guilty of mala fides or of gross negligence in respect of the same. (Amended 76 of 1996 s. 73) [cf. 1914 c. 59 s. 61 U.K.] BANKRUPTCY ORDINANCE - SECT 66 Protection of Official Receiver and trustee from personal liability in certain cases VerDate:30/06/1997 Where the Official Receiver or trustee has seized or disposed of any goods, chattels, property or other effects in the possession or on the premises or under the control of a debtor against whom a receiving order has been made and it is thereafter made to appear that the said goods, chattels, property or other effects were not at the date of the receiving order the property of the debtor, the Official Receiver or trustee shall not be personally liable for any loss or damage arising from such seizure or disposal sustained by any person claiming such property nor for the costs of any proceedings taken to establish a claim thereto, unless the court is of opinion that the Official Receiver or trustee has been guilty of mala fides or of gross negligence in respect of the same. [cf. 1914 c.59 s.61 U.K.] BANKRUPTCY ORDINANCE - SECT 67 Declaration and distribution of dividends VerDate:01/04/1998 Distribution of property (1) Whenever the trustee has sufficient funds in hand for the purpose he shall, subject to the retention of such sums as may be necessary for the expenses of the bankruptcy, declare and distribute dividends among the creditors in respect of the bankruptcy debts which they have respectively proved. (Replaced 76 of 1996 s. 43) (2)-(3) (Repealed 76 of 1996 s. 43) (4) Before declaring a dividend, the trustee shall cause notice of his intention to do so to be gazetted and shall also send reasonable notice thereof to each creditor mentioned in the bankrupt's statement who has not proved his debt. (5) When the trustee has declared a dividend he shall cause to be gazetted and shall send to each creditor who has proved a notice showing the amount of the dividend and when and how it is payable. [cf. 1914 c. 59 s. 62 U.K.] BANKRUPTCY ORDINANCE - SECT 67 Declaration and distribution of dividends VerDate:30/06/1997 Distribution of property (1) Subject to the retention of such sums as may be necessary for the costs of administration, or otherwise, the trustee shall with all convenient speed declare and distribute dividends amongst the creditors who have proved their debts. (2) The first dividend, if any, shall be declared and distributed within 4 months after the conclusion of the first meeting of creditors, unless the trustee satisfies the court that there is sufficient reason for postponing the declaration to a later date. (3) Subsequent dividends shall, in the absence of sufficient reason to the contrary, be declared and distributed at intervals of not more than 6 months. (4) Before declaring a dividend, the trustee shall cause notice of his intention to do so to be gazetted and shall also send reasonable notice thereof to each creditor mentioned in the bankrupt's statement who has not proved his debt. (5) When the trustee has declared a dividend he shall cause to be gazetted and shall send to each creditor who has proved a notice showing the amount of the dividend and when and how it is payable. (See Forms 138, 139, 141) [cf. 1914 c.59 s.62 U.K.] BANKRUPTCY ORDINANCE - SECT 68 Joint and separate dividends VerDate:30/06/1997 (1) Where one partner of a firm is adjudged bankrupt, a creditor to whom the bankrupt is indebted jointly with the other partners of the firm, or any of them, shall not receive any dividend out of the separate property of the bankrupt until all the separate creditors have received the full amount of their respective debts. (2) Where joint and separate properties are being administered, dividends of the joint and separate properties shall, unless otherwise directed by the court on the application of any person interested, be declared together and the expenses of and incidental to such dividends shall be fairly apportioned by the trustee between the joint and separate properties, regard being had to the work done for and the benefit received by each property. [cf. 1914 c. 59 s. 63 U.K.] BANKRUPTCY ORDINANCE - SECT 69 Provision for creditors residing at a distance, etc. VerDate:30/06/1997 (1) In the calculation and distribution of a dividend the trustee shall make provision for debts provable in bankruptcy appearing from the bankrupt's statements, or otherwise, to be due to persons resident in places so distant from Hong Kong that in the ordinary course of communication they have not had sufficient time to tender their proofs or to establish them if disputed, and also for debts provable in bankruptcy the subject of claims not yet determined. (Amended 47 of 1984 s. 16) (2) He shall also make provision for any disputed proofs or claims, and for the expenses necessary for the administration of the estate or otherwise. (3) Subject to the foregoing provisions, he shall distribute as dividend all money in hand. [cf. 1914 c. 59 s. 64 U.K.] BANKRUPTCY ORDINANCE - SECT 70 Right of creditor who has not proved debt before declaration of a dividend VerDate:30/06/1997 Any creditor who has not proved his debt before the declaration of any dividend or dividends shall be entitled to be paid out of any money for the time being in the hands of the trustee any dividend or dividends he may have failed to receive before that money is applied to the payment of any future dividend or dividends, but he shall not be entitled to disturb the distribution of any dividend declared before his debt was proved by reason that he has not participated therein. [cf. 1914 c. 59 s. 65 U.K.] BANKRUPTCY ORDINANCE - SECT 71 Interest on debts VerDate:01/04/1998 (1) Where a bankruptcy debt bears interest, that interest is provable as part of the debt except in so far as it is payable in respect of any period after the commencement of the bankruptcy. (2) Any surplus remaining after the payment of debts that are proved in bankruptcy shall, before being applied for any other purpose, be applied in paying interest on those debts in respect of the periods during which they have been outstanding since the commencement of the bankruptcy; and interest on preferential debts ranks equally with interest on debts other than preferential debts. (3) The rate of interest payable under subsection (2) in respect of any debt is whichever is the greater of the following- (a) the rate specified under section 49 of the Supreme Court Ordinance (Cap 4) at the commencement of the bankruptcy; and (b) the rate applicable to that debt apart from the bankruptcy. (4) On any debt or sum certain, payable at a certain time or otherwise, whereon interest is not reserved or agreed for, and which is overdue at the date of the commencement of the bankruptcy, the creditor may prove for interest, at a rate not exceeding the rate specified under section 49 of the Supreme Court Ordinance (Cap 4), to that date from the time when the debt or sum has become payable, if the debt or sum is payable by virtue of a written instrument at a certain time, and if payable otherwise, then from the time when a demand in writing has been made, giving notice that interest will be claimed from the date of the demand until the time of payment. (Replaced 76 of 1996 s. 44) BANKRUPTCY ORDINANCE - SECT 71 Interest on debts VerDate:30/06/1997 (1) Where a debt has been proved and the debt includes interest or any pecuniary consideration in lieu of interest, such interest or consideration shall, for the purposes of dividend, be calculated at a rate not exceeding 8 per cent per annum and be calculated only up to the date of the receiving order, without prejudice to the right of a creditor to receive out of the estate any higher rate of interest to which he may be entitled after all the debts proved in the estate have been paid in full. (2) In dealing with the proof of the debt the following rules shall be observed- (a) any account settled between the debtor and the creditor within 3 years preceding the date of the receiving order may be examined, and if it appears that the settlement of the account forms substantially one transaction with any debt alleged to be due out of the debtor's estate (whether in the form of renewal of a loan or capitalization of interest or ascertainment of loans or otherwise), the account may be reopened and the whole transaction treated as one; (b) any payments made by the debtor to the creditor before the receiving order, whether by way of bonus or otherwise, and any sums received by the creditor before the receiving order from the realization of any security for the debt shall, notwithstanding any agreement to the contrary, be appropriated to principal and interest in the proportion that the principal bears to the sum payable as interest at the agreed rate; (c) where the debt due is secured and the security is realized after the receiving order, or the value thereof is assessed in the proof, the amount realized or assessed shall be appropriated to the satisfaction of principal and interest in the proportion that the principal bears to the sum payable as interest at the agreed rate. [cf. 1914 c. 59 s. 66 U.K.] BANKRUPTCY ORDINANCE - SECT 71A Extortionate credit transactions VerDate:01/04/1998 (1) This section applies where a person is adjudged bankrupt who is or has been a party to a transaction for, or involving, the provision to him of credit. (2) The court may, on the application of the trustee, make an order with respect to the transaction if the transaction is or was extortionate and was not entered into more than 3 years before the commencement of the bankruptcy. (3) For the purposes of this section a transaction is extortionate if, having regard to the risk accepted by the person providing the credit- (a) the terms of it are or were such as to require grossly exorbitant payments to be made (whether unconditionally or in certain contingencies) in respect of the provision of the credit; or (b) it otherwise grossly contravened ordinary principles of fair dealing, and it shall be presumed, unless the contrary is proved, that a transaction with respect to which an application is made under this section is or, as the case may be, was extortionate. (4) An order under this section with respect to any transaction may contain such one or more of the following as the court thinks fit- (a) provision setting aside the whole or part of any obligation created by the transaction; (b) provision otherwise varying the terms of the transaction or varying the terms on which any security for the purposes of the transaction is held; (c) provision requiring any person who is or was party to the transaction to pay to the trustee any sums paid to that person, by virtue of the transaction, by the bankrupt; (d) provision requiring any person to surrender to the trustee any property held by him as security for the purposes of the transaction; (e) provision directing accounts to be taken between any persons. (5) Any sums or property required to be paid or surrendered to the trustee in accordance with an order under this section shall be comprised in the bankrupt's estate. (Added 76 of 1996 s. 44) BANKRUPTCY ORDINANCE - SECT 72 Final dividend VerDate:30/06/1997 (1) When the trustee has realized all the property of the bankrupt, or so much thereof as can be realized without needlessly protracting the trusteeship, he shall declare a final dividend, but before so doing he shall give notice in manner prescribed to the persons whose claims to be creditors have been notified to him, but not established to his satisfaction, that if they do not establish their claims to the satisfaction of the court within a time limited by the notice, he will proceed to make a final dividend without regard to their claims. (2) After the expiration of the time so limited or if the court on application by any such claimant grants him further time for establishing his claim, then on the expiration of such further time, the property of the bankrupt shall be divided among the creditors who have proved their debts, without regard to the claims of any other persons. [cf. 1914 c. 59 s. 67 U.K.] BANKRUPTCY ORDINANCE - SECT 73 No action for dividend VerDate:30/06/1997 No action for a dividend shall lie against the trustee, but if the trustee refuses to pay any dividend the court may, if it thinks fit, order him to pay it and also to pay out of his own money interest thereon for the time that it is withheld and the costs of the application. [cf. 1914 c. 59 s. 68 U.K.] BANKRUPTCY ORDINANCE - SECT 74 Right of bankrupt to surplus VerDate:30/06/1997 The bankrupt shall be entitled to any surplus remaining after payment in full of his creditors, with interest, as by this Ordinance provided, and of the costs, charges and expenses of the proceedings under the bankruptcy petition. [cf. 1914 c. 59 s. 69 U.K.] BANKRUPTCY ORDINANCE - SECT 74A Interpretation VerDate:30/06/1997 PART IIIA CRIMINAL BANKRUPTCY Interpretation In this Part and in Schedule 1- "criminal bankruptcy administration petition" (刑事破產管理呈請) means a petition under section 112 presented by virtue of Schedule 1; "criminal bankruptcy order" (刑事破產令) means an order made under section 84A of the Criminal Procedure Ordinance (Cap 221); "criminal bankruptcy petition" (刑事破產呈請) means a bankruptcy petition presented by virtue of Schedule 1. (Amended 39 of 1992 s. 2) "criminal bankruptcy administration petition" (刑事破產管理呈請) "criminal bankruptcy order" (刑事破產令) "criminal bankruptcy petition" (刑事破產呈請) BANKRUPTCY ORDINANCE - SECT 74B Office and functions of Official Petitioner VerDate:01/07/1997 Official Petitioner (1) For the purposes of discharging, in relation to cases in which a criminal bankruptcy order is made, the functions mentioned in subsection (2), there shall be an officer known as the Official Petitioner; and the Secretary for Justice shall, by virtue of his office, be the Official Petitioner. (Amended L.N. 362 of 1997) (2) The functions of the Official Petitioner shall be- (a) to consider whether, in a case where a criminal bankruptcy order is made, it is in the public interest that he should himself present a criminal bankruptcy petition; (b) to present a criminal bankruptcy petition in any such case where he determines it is in the public interest for him to do so; (c) to make payments, in such cases as he may determine, towards expenses incurred by other persons in connection with proceedings pursuant to a criminal bankruptcy petition or a criminal bankruptcy administration petition; (d) to exercise, so far as he considers it to be in the public interest to do so, any of the powers conferred on him by Schedule 1. (Amended 39 of 1992 s. 2) (3) Neither the Official Petitioner nor any person acting under his authority shall be liable to any action or proceeding in respect of anything done or omitted in the discharge, or purported discharge, of the functions of the Official Petitioner under or by virtue of this Ordinance. (4) Any functions of the Official Petitioner under this Ordinance may be discharged on his behalf by any person acting with his authority. [cf. 1972 c. 71 s. 9 U.K.] BANKRUPTCY ORDINANCE - SECT 74B Office and functions of Official Petitioner VerDate:30/06/1997 Official Petitioner (1) For the purposes of discharging, in relation to cases in which a criminal bankruptcy order is made, the functions mentioned in subsection (2), there shall be an officer known as the Official Petitioner; and the Attorney General shall, by virtue of his office, be the Official Petitioner. (2) The functions of the Official Petitioner shall be- (a) to consider whether, in a case where a criminal bankruptcy order is made, it is in the public interest that he should himself present a criminal bankruptcy petition; (b) to present a criminal bankruptcy petition in any such case where he determines it is in the public interest for him to do so; (c) to make payments, in such cases as he may determine, towards expenses incurred by other persons in connection with proceedings pursuant to a criminal bankruptcy petition or a criminal bankruptcy administration petition; (d) to exercise, so far as he considers it to be in the public interest to do so, any of the powers conferred on him by Schedule 1. (Amended 39 of 1992 s. 2) (3) Neither the Official Petitioner nor any person acting under his authority shall be liable to any action or proceeding in respect of anything done or omitted in the discharge, or purported discharge, of the functions of the Official Petitioner under or by virtue of this Ordinance. (4) Any functions of the Official Petitioner under this Ordinance may be discharged on his behalf by any person acting with his authority. [cf. 1972 c. 71 s. 9 U.K.] BANKRUPTCY ORDINANCE - SECT 74C Effect of criminal bankruptcy order VerDate:30/06/1997 General Schedule 1 shall apply to give effect to the operation of this Ordinance in a case where a criminal bankruptcy order has been made and to supplement this Ordinance in relation to dispositions made by a person against whom such an order has been made. (Amended 39 of 1992 s. 2) (Part IIIA added 21 of 1979 s. 2) BANKRUPTCY ORDINANCE - SECT 75 Appointment of Official Receiver and other officers VerDate:28/03/2003 Adaptation amendments retroactively made - see 18 of 2005 s. 19 PART IV OFFICIAL RECEIVER (1) The Chief Executive may appoint an Official Receiver and such other officers to hold any of the offices specified in Schedule 2 as may be required to assist the Official Receiver in the performance of his duties. (Amended 18 of 2005 s. 19) (2) No person shall be appointed Official Receiver or to any of the offices specified in Part I of Schedule 2 unless on the date of such appointment he is qualified to practise as a legal practitioner in Hong Kong, the United Kingdom or in a jurisdiction listed in Schedule 2 to the Legal Officers Ordinance (Cap 87). (Amended 42 of 2000 s. 21) (3) The Official Receiver and the holder of an office specified in Part I of Schedule 2 shall be deemed to be legal officers for the purpose of the Legal Officers Ordinance (Cap 87) and shall have all rights conferred upon legal officers by that Ordinance. (4) The holder of an office specified in Schedule 2 may, subject to subsection (5) and any instructions of the Official Receiver, exercise the powers or perform the duties of the office of the Official Receiver. (5) The holder of an office specified in Part II of Schedule 2 shall not exercise any right conferred by subsection (3) on the holder of an office specified in Part I of Schedule 2. (6) The Official Receiver shall act under the general authority and direction of the Chief Executive and shall also be an officer of the court. (Amended 18 of 2005 s. 19) (7) The Chief Executive may, by order published in the Gazette, amend Schedule 2. (Amended 18 of 2005 s. 19) (Replaced 39 of 1992 s. 3) BANKRUPTCY ORDINANCE - SECT 75 Appointment of Official Receiver and other officers VerDate:01/07/1997 Adaptation amendments retroactively made - see 18 of 2005 s. 19 PART IV OFFICIAL RECEIVER (1) The Chief Executive may appoint an Official Receiver and such other officers to hold any of the offices specified in Schedule 2 as may be required to assist the Official Receiver in the performance of his duties. (Amended 18 of 2005 s. 19) (2) No person shall be appointed Official Receiver or to any of the offices specified in Part I of Schedule 2 unless on the date of such appointment he is qualified to practise as a legal practitioner in Hong Kong, the United Kingdom or in a jurisdiction listed in Schedule 1 to the Legal Practitioners Ordinance (Cap 159). (3) The Official Receiver and the holder of an office specified in Part I of Schedule 2 shall be deemed to be legal officers for the purpose of the Legal Officers Ordinance (Cap 87) and shall have all rights conferred upon legal officers by that Ordinance. (4) The holder of an office specified in Schedule 2 may, subject to subsection (5) and any instructions of the Official Receiver, exercise the powers or perform the duties of the office of the Official Receiver. (5) The holder of an office specified in Part II of Schedule 2 shall not exercise any right conferred by subsection (3) on the holder of an office specified in Part I of Schedule 2. (6) The Official Receiver shall act under the general authority and direction of the Chief Executive and shall also be an officer of the court. (Amended 18 of 2005 s. 19) (7) The Chief Executive may, by order published in the Gazette, amend Schedule 2. (Amended 18 of 2005 s. 19) (Replaced 39 of 1992 s. 3) BANKRUPTCY ORDINANCE - SECT 75 Appointment of Official Receiver and other officers VerDate:30/06/1997 PART IV OFFICIAL RECEIVER (1) The Governor may appoint an Official Receiver and such other officers to hold any of the offices specified in Schedule 2 as may be required to assist the Official Receiver in the performance of his duties. (2) No person shall be appointed Official Receiver or to any of the offices specified in Part I of Schedule 2 unless on the date of such appointment he is qualified to practise as a legal practitioner in Hong Kong, the United Kingdom or in a jurisdiction listed in Schedule 1 to the Legal Practitioners Ordinance (Cap 159). (3) The Official Receiver and the holder of an office specified in Part I of Schedule 2 shall be deemed to be legal officers for the purpose of the Legal Officers Ordinance (Cap 87) and shall have all rights conferred upon legal officers by that Ordinance. (4) The holder of an office specified in Schedule 2 may, subject to subsection (5) and any instructions of the Official Receiver, exercise the powers or perform the duties of the office of the Official Receiver. (5) The holder of an office specified in Part II of Schedule 2 shall not exercise any right conferred by subsection (3) on the holder of an office specified in Part I of Schedule 2. (6) The Official Receiver shall act under the general authority and direction of the Governor and shall also be an officer of the court. (7) The Governor may, by order published in the Gazette, amend Schedule 2. (Replaced 39 of 1992 s. 3) BANKRUPTCY ORDINANCE - SECT 76 Status of Official Receiver VerDate:30/06/1997 (1) The duties of the Official Receiver shall have relation both to the conduct of the debtor and to the administration of his estate. (2) The Official Receiver and the holder of an office specified in Schedule 2 may take any affidavit required by any Ordinance to be made before or produced or delivered to or filed with the Official Receiver or the holder of an office specified in Schedule 2 notwithstanding any Ordinance requiring the taking of such affidavit by or before any other person. (Replaced 39 of 1992 s. 4) (3) All provisions in this or any other Ordinance referring to the trustee in a bankruptcy shall, unless the context otherwise requires or the Ordinance otherwise provides, include the Official Receiver when acting as trustee. (4) The trustee shall supply the Official Receiver with such information, and give him such access to and facilities for inspecting the bankrupt's books and documents, and generally shall give him such aid, as may be requisite for enabling the Official Receiver to perform his duties under this Ordinance. [cf. 1914 c. 59 s. 72 U.K.] BANKRUPTCY ORDINANCE - SECT 76A Transitional provision VerDate:30/06/1997 (1) Any thing done before the commencement* of the Bankruptcy (Amendment) Ordinance 1992 (39 of 1992) by the Registrar General in the capacity of Official Receiver shall be regarded as having been done by the Official Receiver at the time when the thing was done. (2) Any document which contains a reference to the Registrar General in the capacity of Official Receiver shall have effect on and after the commencement* of the Bankruptcy (Amendment) Ordinance 1992 (39 of 1992) with the substitution for such reference of a reference to the Official Receiver. (3) In any legal proceedings pending on the commencement* of the Bankruptcy (Amendment) Ordinance 1992 (39 of 1992) to which the Registrar General in the capacity of Official Receiver is a party, the Official Receiver shall as from such commencement be substituted as a party thereto in lieu of the Registrar General and the proceedings shall continue as if the Official Receiver had always been that party. (4) In this section, "Registrar General" (註冊總署署長) means the Registrar General appointed under section 2(1) of the Registrar General (Establishment) Ordinance (Cap 100)+. (Added 39 of 1992 s. 5) ___________________________________________________________________ Note: * Commencement date: 1 June 1992. + The Registrar General (Establishment) Ordinance was repealed by s. 14 of the Registrar General (Establishment) (Transfer of Functions and Repeal) Ordinance (Cap 439). "Registrar General" (註冊總署署長) BANKRUPTCY ORDINANCE - SECT 77 Duties of Official Receiver as regards the bankrupt's conduct VerDate:10/12/2007 As regards the conduct of a bankrupt, it shall be the duty of the Official Receiver- (Amended 18 of 2005 s. 20) (a) to consider any report submitted to him under section 86A and take such action on the report as he considers appropriate; (Replaced 18 of 2005 s. 20) (b) (Repealed 18 of 2005 s. 20) (c) to take such part and give such assistance in relation to the prosecution of any bankrupt as the Secretary for Justice may direct. (Amended L.N. 362 of 1997; 18 of 2005 s. 20) (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule; 20 of 1948 s. 4; 76 of 1996 s. 72) [cf. 1914 c. 59 s. 73 U.K.] BANKRUPTCY ORDINANCE - SECT 77 Duties of Official Receiver as regards the bankrupt's conduct VerDate:01/04/1998 As regards the bankrupt, it shall be the duty of the Official Receiver- (a) to investigate the conduct of the bankrupt and to report to the court, stating whether there is reason to believe that the bankrupt has committed any act which constitutes an indictable offence under this Ordinance or which would justify the court in refusing, suspending or qualifying an order for his discharge; (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule; 50 of 1991 s. 4) (b) to conduct the public examination of the bankrupt; (c) to take such part and give such assistance in relation to the prosecution of any fraudulent bankrupt as the Secretary for Justice may direct. (Amended L.N. 362 of 1997) (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule; 20 of 1948 s. 4; 76 of 1996 s. 72) [cf. 1914 c. 59 s. 73 U.K.] BANKRUPTCY ORDINANCE - SECT 77 Duties of Official Receiver as regards the bankrupt's conduct VerDate:01/07/1997 As regards the debtor, it shall be the duty of the Official Receiver- (a) to investigate the conduct of the debtor and to report to the court, stating whether there is reason to believe that the debtor has committed any act which constitutes an indictable offence under this Ordinance or which would justify the court in refusing, suspending or qualifying an order for his discharge; (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule; 50 of 1991 s. 4) (b) to conduct the public examination of the debtor; (c) to take such part and give such assistance in relation to the prosecution of any fraudulent debtor as the Secretary for Justice may direct. (Amended L.N. 362 of 1997) (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule; 20 of 1948 s. 4) [cf. 1914 c. 59 s. 73 U.K.] BANKRUPTCY ORDINANCE - SECT 77 Duties of Official Receiver as regards the debtor's conduct VerDate:30/06/1997 As regards the debtor, it shall be the duty of the Official Receiver- (a) to investigate the conduct of the debtor and to report to the court, stating whether there is reason to believe that the debtor has committed any act which constitutes an indictable offence under this Ordinance or which would justify the court in refusing, suspending or qualifying an order for his discharge; (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule; 50 of 1991 s. 4) (b) to conduct the public examination of the debtor; (c) to take such part and give such assistance in relation to the prosecution of any fraudulent debtor as the Attorney General may direct. (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule; 20 of 1948 s. 4) [cf. 1914 c. 59 s. 73 U.K.] BANKRUPTCY ORDINANCE - SECT 78 Duties of Official Receiver as to bankrupt's estate VerDate:10/12/2007 (1) As regards the estate of a bankrupt, it shall be the duty of the Official Receiver- (Amended 76 of 1996 s. 72) (a) to act as interim trustee if so appointed by the court; (Replaced 18 of 2005 s. 21) (b)-(e) (Repealed 18 of 2005 s. 21) (f) to advertise the bankruptcy order; (Amended 76 of 1996 ss. 72 and 73) (g) to act as trustee during any vacancy in the office of trustee. (h) (Repealed 18 of 2005 s. 21) (2) For the purpose of his duties as interim trustee, the Official Receiver shall have the same powers as if he were a receiver appointed by the court, but shall, as far as practicable, consult the wishes of the creditors with respect to the management of the bankrupt's property, and may for that purpose, if he thinks it advisable, summon meetings of the persons claiming to be creditors, and shall not, unless the court otherwise orders, incur any expense beyond such as is requisite for the protection of the bankrupt's property or the disposing of perishable goods. (Amended 76 of 1996 s. 72) (3) (Repealed 18 of 2005 s. 21) (Amended 18 of 2005 s. 21) [cf. 1914 c. 59 s. 74 U.K.] BANKRUPTCY ORDINANCE - SECT 78 Duties of Official Receiver as to bankrupt's estate VerDate:01/04/1998 (1) As regards the estate of a bankrupt, it shall be the duty of the Official Receiver- (Amended 76 of 1996 s. 72) (a) pending the appointment of a trustee, to act as interim receiver of the bankrupt's estate, and where a special manager is not appointed, as manager thereof; (Amended 76 of 1996 s. 72) (b) to raise money in any case where in the interests of the creditors it appears necessary so to do; (c) to preside at the first meeting of creditors if it is summoned; (Replaced 76 of 1996 s. 45) (d) to issue forms of proxy for use at the meetings of creditors; (e) to report to the creditors as to any proposal which the bankrupt may have made with respect to the mode of liquidating his affairs; (Amended 76 of 1996 s. 72) (f) to advertise the bankruptcy order, the date of the creditors' first meeting and of the bankrupt's public examination, and such other matters as it may be necessary to advertise; (Amended 76 of 1996 ss. 72 and 73) (g) to act as trustee during any vacancy in the office of trustee; (h) to assist the bankrupt in preparing his statement of affairs in case the bankrupt has no solicitor acting for him and is unable properly to prepare it himself, and for this purpose he may employ at the expense of the estate any person or persons to assist in its preparation. (Amended 76 of 1996 s. 72) (2) For the purpose of his duties as interim receiver or manager the Official Receiver shall have the same powers as if he were a receiver and manager appointed by the court, but shall, as far as practicable, consult the wishes of the creditors with respect to the management of the bankrupt's property, and may for that purpose, if he thinks it advisable, summon meetings of the persons claiming to be creditors, and shall not, unless the court otherwise orders, incur any expense beyond such as is requisite for the protection of the bankrupt's property or the disposing of perishable goods. (Amended 76 of 1996 s. 72) (3) The Official Receiver shall account to the court and pay over all moneys and deal with all securities in such manner as the court from time to time directs. [cf. 1914 c. 59 s. 74 U.K.] BANKRUPTCY ORDINANCE - SECT 78 Duties of Official Receiver as to debtor's estate VerDate:30/06/1997 (1) As regards the estate of a debtor, it shall be the duty of the Official Receiver- (a) pending the appointment of a trustee, to act as interim receiver of the debtor's estate, and where a special manager is not appointed, as manager thereof; (b) to raise money in any case where in the interests of the creditors it appears necessary so to do; (c) to summon and preside at the first meeting of creditors; (d) to issue forms of proxy for use at the meetings of creditors; (See Forms 50, 51) (e) to report to the creditors as to any proposal which the debtor may have made with respect to the mode of liquidating his affairs; (f) to advertise the receiving order, the date of the creditors' first meeting and of the debtor's public examination, and such other matters as it may be necessary to advertise; (See Form 27) (g) to act as trustee during any vacancy in the office of trustee; (h) to assist the debtor in preparing his statement of affairs in case the debtor has no solicitor acting for him and is unable properly to prepare it himself, and for this purpose he may employ at the expense of the estate any person or persons to assist in its preparation. (2) For the purpose of his duties as interim receiver or manager the Official Receiver shall have the same powers as if he were a receiver and manager appointed by the court, but shall, as far as practicable, consult the wishes of the creditors with respect to the management of the debtor's property, and may for that purpose, if he thinks it advisable, summon meetings of the persons claiming to be creditors, and shall not, unless the court otherwise orders, incur any expense beyond such as is requisite for the protection of the debtor's property or the disposing of perishable goods. (3) The Official Receiver shall account to the court and pay over all moneys and deal with all securities in such manner as the court from time to time directs. [cf. 1914 c.59 s.74 U.K.] BANKRUPTCY ORDINANCE - SECT 79 Official name of trustee and provisional trustee VerDate:10/12/2007 PART V TRUSTEES AND PROVISIONAL TRUSTEES (Replaced 18 of 2005 s. 22) Official name (1) The official name of a provisional trustee shall be “the provisional trustee of the property of a bankrupt” (inserting the name of the bankrupt). (2) The official name of a trustee shall be “the trustee of the property of a bankrupt” (inserting the name of the bankrupt). (3) By his official name, a provisional trustee or trustee may do all acts that are required or authorized to be done by him in the execution of his office. (Replaced 18 of 2005 s. 23) BANKRUPTCY ORDINANCE - SECT 79 Official name of trustee VerDate:30/06/1997 PART V TRUSTEES IN BANKRUPTCY Official name The official name of a trustee in bankruptcy shall be " the trustee of the property of a bankrupt" (inserting the name of the bankrupt), and by that name the trustee may hold property of every description, make contracts, sue and be sued, enter into any engagements binding on himself and his successors in office, and do all other acts necessary or expedient to be done in the execution of his office. [cf. 1914 c. 59 s. 76 U.K.] BANKRUPTCY ORDINANCE - SECT 79A Disqualification for appointment as trustee VerDate:30/06/1997 Appointment No person being an undischarged bankrupt and no body corporate shall be qualified for appointment to the office of trustee, and- (a) any appointment made in contravention of this section shall be void; and (b) where any such person or any body corporate acts as trustee, such person or body corporate shall be liable to a fine of $5000. (Added 47 of 1984 s. 11) BANKRUPTCY ORDINANCE - SECT 79B Corrupt inducement affecting appointment as trustee VerDate:30/06/1997 Any person who gives or agrees or offers to give to any creditor of a debtor or bankrupt any valuable consideration with a view to securing his own appointment or nomination, or to securing or preventing the appointment or nomination of some person other than himself, as the trustee shall be liable to a fine of $5000. (Added 47 of 1984 s. 11) BANKRUPTCY ORDINANCE - SECT 80 Power to appoint joint or successive trustees and provisional trustees VerDate:10/12/2007 (1) When 2 or more persons are appointed as provisional trustees, the appointment shall state whether any act required or authorized to be done by a provisional 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 “provisional trustee”, and shall be joint tenants of the property of the bankrupt. (Replaced 18 of 2005 s. 24) (1A) When 2 or more persons are appointed as trustees, the appointment shall state whether any act required or authorized to be done by a 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. (Added 18 of 2005 s. 24) (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.] BANKRUPTCY ORDINANCE - SECT 80 Power to appoint joint or successive trustees VerDate:30/06/1997 (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 "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.] BANKRUPTCY ORDINANCE - SECT 81 Proceedings in case of vacancy in office of trustee VerDate:30/06/1997 (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 the 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.] BANKRUPTCY ORDINANCE - SECT 81A Vacancy in office of provisional trustee VerDate:10/12/2007 (1) If a vacancy occurs in the office of a provisional trustee, the Official Receiver shall— (a) in a case where the Official Receiver considers that the value of the property of the bankrupt is unlikely to exceed $200000, either appoint another person to fill the vacancy or act as the provisional trustee; or (b) in any other case, act as the provisional trustee. (2) The power of the Official Receiver to appoint another person to fill a vacancy may be exercised without a creditors’ meeting, and it includes power to appoint 2 or more persons as joint provisional trustees; but such an appointment must make provision as to the circumstances in which the provisional trustees must act together and the circumstances in which one or more of them may act for the others. (Added 18 of 2005 s. 25) BANKRUPTCY ORDINANCE - SECT 82 Discretionary powers of trustee and control thereof VerDate:10/12/2007 Control over trustee (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 creditors' committee, 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 creditors' committee. (Amended 76 of 1996 s. 74) (2) The trustee may from time to time summon general meeting 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 to call a meeting of the creditors, and the trustee 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 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. (Amended 18 of 2005 s. 26) (3) The trustee may apply to the court in manner prescribed for directions in relation to any particular matter arising under the bankruptcy. (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.] BANKRUPTCY ORDINANCE - SECT 82 Discretionary powers of trustee and control thereof VerDate:01/04/1998 Control over trustee (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 creditors' committee, 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 creditors' committee. (Amended 76 of 1996 s. 74) (2) The trustee may from time to time summon general meeting 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. (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.] BANKRUPTCY ORDINANCE - SECT 82 Discretionary powers of trustee and control thereof VerDate:30/06/1997 Control over trustee (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 meeting 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.] BANKRUPTCY ORDINANCE - SECT 83 Appeal to court against trustee VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 84 Control of court over trustee VerDate:01/04/1998 (1) The court shall take cognizance of the conduct of trustees, who shall act in a fiduciary capacity and deal with property under their control honestly, in good faith, with proper skill and competence and in a reasonable manner, 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, the Official Receiver, the bankrupt or any other person 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. (Amended 76 of 1996 s. 46) (1A) Without limiting the generality of the duties imposed on a trustee by subsection (1), in realizing the assets of a bankrupt's estate it shall be the duty of a trustee to take all reasonable care to realize the best price reasonably obtainable in the circumstances. (Added 76 of 1996 s. 46) (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. (4) Where on an application under this section the court is satisfied- (a) that the trustee has misapplied or retained, or become accountable for, any money or other property comprised in the bankrupt's estate; or (b) that a bankrupt's estate has suffered any loss in consequence of any misfeasance or breach of fiduciary or other duty by a trustee in the carrying out of his functions, the court may order the trustee, for the benefit of the estate, to repay, restore or account for money or other property (together with interest at such rate as the court thinks just) or, as the case may require, to pay such sum by way of compensation in respect of the misfeasance or breach of fiduciary or other duty as the court thinks just, and liability under this section is without prejudice to any liability arising apart from this section. (Added 76 of 1996 s. 46) [cf. 1914 c. 59 s. 81 U.K.] BANKRUPTCY ORDINANCE - SECT 84 Control of court over trustee VerDate:30/06/1997 (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.] BANKRUPTCY ORDINANCE - SECT 85 Remuneration of trustee VerDate:01/04/1998 Remuneration and costs (1) Where the creditors appoint any person to be trustee of a bankrupt's estate, his remuneration (if any) shall be fixed by an ordinary resolution of the creditors, or, if the creditors so resolve, by the creditors' committee. (Amended 76 of 1996 ss. 72 and 74) (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 creditors' committee, 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. (Amended 76 of 1996 s. 74) (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) BANKRUPTCY ORDINANCE - SECT 85 Remuneration of trustee VerDate:30/06/1997 Remuneration and costs (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) BANKRUPTCY ORDINANCE - SECT 85A Remuneration of provisional trustee and the first trustee constituted under section 112A VerDate:10/12/2007 (1) The remuneration of the following persons shall be fixed by the Official Receiver in accordance with a scale of fees or on such other basis as the Official Receiver may from time to time approve in writing— (a) a provisional trustee other than the Official Receiver; (b) in a case where section 112A applies and the first trustee constituted under subsection (1)(i) of that section is not the Official Receiver, that first trustee. (2) 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 the provisional trustee or first trustee referred to in subsection (1) should be reviewed, the Official Receiver may apply to the court and thereupon the court may confirm, increase or reduce such remuneration. (3) Where the provisional trustee or first trustee referred to in subsection (1) has not received any remuneration, the court may, on application, order the payment out of the bankrupt’s estate to him of such amount as the court considers sufficient to reimburse him for any necessary disbursements incurred by him in the course of the administration of the estate. Such application may be made by the trustee or the Official Receiver. (4) The provisional trustee or first trustee referred to in subsection (1) 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 in relation to the bankruptcy, any gift, remuneration or pecuniary or other consideration or benefit whatever to be made or payable to him beyond his said remuneration payable out of the estate, and he shall not 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, auctioneer or any other person who may be employed in relation to the bankruptcy. (Added 18 of 2005 s. 27) BANKRUPTCY ORDINANCE - SECT 86 Allowance and taxation of costs VerDate:30/06/1997 (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.] BANKRUPTCY ORDINANCE - SECT 86A Duties of trustee as regards the bankrupt's conduct VerDate:10/12/2007 Duties of trustee as regards the bankrupt’s conduct and estate (Added 18 of 2005 s. 28) (1) It shall be the duty of the trustee— (a) to investigate the conduct of the bankrupt; and (b) to report to the court on any conduct that justifies the court in refusing, suspending or qualifying an order for the bankrupt's discharge. (2) In the case of a trustee other than the Official Receiver, it shall also be the duty of the trustee— (a) to investigate the conduct of the bankrupt and to immediately report to the Official Receiver when there is reason to believe that the bankrupt has committed an act that constitutes an offence under this Ordinance; and (b) to take such part and give such assistance in relation to the prosecution of the bankrupt as the Secretary for Justice or the Official Receiver may direct. (Added 18 of 2005 s. 28) BANKRUPTCY ORDINANCE - SECT 86B Duties of trustee as regards the bankrupt's estate VerDate:10/12/2007 (1) As regards the estate of a bankrupt, it shall be the duty of the trustee— (a) to raise money in any case where in the interests of the creditors it appears necessary so to do; (b) to preside at the first meeting of creditors if it is summoned; (c) to issue forms of proxy for use at the meetings of creditors; (d) to report to the creditors as to any proposal which the bankrupt may have made with respect to the mode of liquidating his affairs; (e) to advertise the date of the first meeting of creditors and of the bankrupt's public examination, and such other matters as it may be necessary to advertise; (f) to assist the bankrupt in preparing his statement of affairs in case the bankrupt has no solicitor acting for him and is unable properly to prepare it himself, and for this purpose to employ at the expense of the estate any person or persons to assist in its preparation. (2) The trustee shall account to the court and pay over all moneys and deal with all securities in such manner as the court from time to time directs. (Added 18 of 2005 s. 28) BANKRUPTCY ORDINANCE - SECT 87 Trustee to provide list of creditors VerDate:10/12/2007 Receipts, payments, accounts, audit The trustee shall, whenever required by any creditor so to do, provide the creditor with a list of the creditors showing the amount of the debt due to each creditor, and the creditor requiring such list shall pay a fee at the prescribed rate. (Amended 76 of 1996 s. 47; 18 of 2005 s. 29) [cf. 1914 c. 59 s. 84 U.K.] BANKRUPTCY ORDINANCE - SECT 87 Trustee to furnish list of creditors VerDate:01/04/1998 Receipts, payments, accounts, audit 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 the creditor requiring such list shall pay a fee at the prescribed rate. (Amended 76 of 1996 s. 47) [cf. 1914 c. 59 s. 84 U.K.] BANKRUPTCY ORDINANCE - SECT 87 Trustee to furnish list of creditors VerDate:30/06/1997 Receipts, payments, accounts, audit 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.] BANKRUPTCY ORDINANCE - SECT 88 Trustee to provide statement of accounts VerDate:10/12/2007 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 to provide the creditors with a statement of the accounts up to the date of such notice, and the trustee shall upon receipt of such notice provide the statement of the accounts: Provided that the person at whose instance the accounts are provided shall, if so required, deposit with the trustee a sum sufficient to pay the costs of providing the accounts, which sum shall be repaid to him out of the estate if the court so directs. (Amended 18 of 2005 s. 30) [cf. 1914 c. 59 s. 85 U.K.] BANKRUPTCY ORDINANCE - SECT 88 Trustee to furnish statement of accounts VerDate:30/06/1997 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: 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.] BANKRUPTCY ORDINANCE - SECT 89 Annual statement of proceedings VerDate:10/12/2007 (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, provide the Official Receiver with 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 provided 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. (Amended 18 of 2005 s. 31) [cf. 1914 c. 59 s. 87 U.K.] BANKRUPTCY ORDINANCE - SECT 89 Annual statement of proceedings VerDate:30/06/1997 (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.] BANKRUPTCY ORDINANCE - SECT 90 Trustee not to pay into private account VerDate:01/04/1998 No trustee in a bankruptcy or nominee under a voluntary 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. (Amended 76 of 1996 s. 48) [cf. 1914 c. 59 s. 88 U.K.] BANKRUPTCY ORDINANCE - SECT 90 Trustee not to pay into private account VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 91 Payment of moneys into bank VerDate:01/04/1998 Adaptation amendments retroactively made - see 18 of 2005 s. 32 (1) The Official Receiver shall open in his name as Official Receiver an account at a bank approved by the Chief Executive 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 bankrupt'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: (Amended 47 of 1984 s. 12; 76 of 1996 s. 72; 18 of 2005 s. 32) Provided that the Official Receiver may, on the application of the creditors' committee, 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. Amended 76 of 1996 s. 74) (2) If a trustee at any time retains for more than 10 days a sum exceeding $2000, 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. BANKRUPTCY ORDINANCE - SECT 91 Payment of moneys into bank VerDate:01/07/1997 Adaptation amendments retroactively made - see 18 of 2005 s. 32 (1) The Official Receiver shall open in his name as Official Receiver an account at a bank approved by the Chief Executive 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: (Amended 18 of 2005 s. 32) 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 $2000, 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. BANKRUPTCY ORDINANCE - SECT 91 Payment of moneys into bank VerDate:30/06/1997 (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 $2000, 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. BANKRUPTCY ORDINANCE - SECT 92 Record and account to be kept by trustee VerDate:10/12/2007 (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 creditors' committee and a statement of all negotiations and proceedings necessary to give a correct view of the management of the bankrupt's property. Such record shall be produced for inspection to the Official Receiver at any time on demand. (Amended 18 of 2005 s. 33) (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 creditors' committee 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. (Amended 76 of 1996 s. 74) BANKRUPTCY ORDINANCE - SECT 92 Record and account to be kept by trustee VerDate:01/04/1998 (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 creditors' committee 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 creditors' committee 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. (Amended 76 of 1996 s. 74) BANKRUPTCY ORDINANCE - SECT 92 Record and account to be kept by trustee VerDate:30/06/1997 (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. BANKRUPTCY ORDINANCE - SECT 93 Audit of trustee's accounts VerDate:10/12/2007 (1) A trustee other than the Official Receiver shall keep an account of his receipts and payments as such trustee. (Replaced 18 of 2005 s. 34) (1A) The Official Receiver may at any time require the trustee to provide him with the account, and the trustee shall comply with the requirement within the specified time. (Added 18 of 2005 s. 34) (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. (Amended 13 of 1966 Schedule) (3) The trustee shall provide 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. Amended 18 of 2005 s. 34) (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.] BANKRUPTCY ORDINANCE - SECT 93 Audit of trustee's accounts VerDate:30/06/1997 (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. (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.] BANKRUPTCY ORDINANCE - SECT 94 Release of trustee VerDate:01/04/1998 Vacation of office by 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 voluntary arrangement 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. (Amended 76 of 1996 s. 49) (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 bankrupt'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. (Amended 76 of 1996 s. 72) (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.] BANKRUPTCY ORDINANCE - SECT 94 Release of trustee VerDate:30/06/1997 Vacation of office by 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.] BANKRUPTCY ORDINANCE - SECT 95 Office of trustee vacated by insolvency VerDate:01/04/1998 If a bankruptcy order is made against a trustee he shall thereby vacate his office of trustee. (Amended 76 of 1996 s. 73) [cf. 1914 c. 59 s. 94 U.K.] BANKRUPTCY ORDINANCE - SECT 95 Office of trustee vacated by insolvency VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 96 Removal of trustee VerDate:10/12/2007 (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, other than the Official Receiver, is guilty of misconduct or fails to perform his duties under this Ordinance; or (Amended 18 of 2005 s. 35) (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 connection 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.] BANKRUPTCY ORDINANCE - SECT 96 Removal of trustee VerDate:30/06/1997 (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 connection 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.] BANKRUPTCY ORDINANCE - SECT 97 General power of court VerDate:01/04/1998 PART VI CONSTITUTION, PROCEDURE AND POWERS OF COURT Jurisdiction (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) (Repealed 76 of 1996 s. 50) [cf. 1914 c. 59 s. 105 U.K.] BANKRUPTCY ORDINANCE - SECT 97 General power of court VerDate:30/06/1997 PART VI CONSTITUTION, PROCEDURE AND POWERS OF COURT Jurisdiction (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.] BANKRUPTCY ORDINANCE - SECT 98 Review and appeals in bankruptcy VerDate:10/12/2007 Review and appeals (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 notice of appeal shall be served within the time for appealing against an order made in the matter of any bankruptcy as specified in Order 59, rule 4(1)(b) of the Rules of the High Court (Cap 4 sub. leg. A). (Amended 92 of 1975 s. 59; 78 of 1991 s. 2; 18 of 2005 s. 36) [cf. 1914 c. 59 s. 108 U.K.] BANKRUPTCY ORDINANCE - SECT 98 Review and appeals in bankruptcy VerDate:30/06/1997 Review and appeals (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.] BANKRUPTCY ORDINANCE - SECT 99 General rules of procedure VerDate:10/12/2007 Procedure (1) The rules and practice of the High 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 connection 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. (Amended 25 of 1998 s. 2) (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 bankruptcy orders thereon; (Amended 37 of 1998 s. 2) (b) applications to annul bankruptcy orders; (Amended 37 of 1998 s. 2; 18 of 2005 s. 37) (c) applications for an interim order in respect of a voluntary arrangement; and (Replaced 37 of 1998 s. 2) (d) applications for discharge from bankruptcy. (Replaced 78 of 1991 s. 3. Amended 18 of 2005 s. 37) BANKRUPTCY ORDINANCE - SECT 99 General rules of procedure VerDate:20/11/1998 Procedure (1) The rules and practice of the High 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 connection 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. (Amended 25 of 1998 s. 2) (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 bankruptcy orders thereon; (Amended 37 of 1998 s. 2) (b) applications to annual adjudications; (Amended 37 of 1998 s. 2) (c) applications for an interim order in respect of a voluntary arrangement; and (Replaced 37 of 1998 s. 2) (d) applications for orders of discharge. (Replaced 78 of 1991 s. 3) BANKRUPTCY ORDINANCE - SECT 99 General rules of procedure VerDate:01/07/1997 Amendments retroactively made - see 25 of 1998 s. 2 Procedure (1) The rules and practice of the High 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 connection 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. (Amended 25 of 1998 s. 2) (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) BANKRUPTCY ORDINANCE - SECT 99 General rules of procedure VerDate:30/06/1997 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 connection 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) BANKRUPTCY ORDINANCE - SECT 99A Jurisdiction of Registrar VerDate:08/07/2005 (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) Notwithstanding 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" (司法常務官) means- (a) the Registrar of the High Court; (aa) any Senior Deputy Registrar of the High Court; (Added 10 of 2005 s. 168) (b) any Deputy Registrar of the High Court; and (c) any Assistant Registrar of the High Court appointed by the Chief Justice for the purposes of this section. (Amended 25 of 1998 s. 2) (Added 50 of 1970 s. 2) "Registrar" (司法常務官) BANKRUPTCY ORDINANCE - SECT 99A Jurisdiction of Registrar VerDate:01/07/1997 Adaptation amendments retroactively made - see 25 of 1998 s. 2 (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) Notwithstanding 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" (司法常務官) means- (a) the Registrar of the High Court; (b) any Deputy Registrar of the High Court; and (c) any Assistant Registrar of the High Court appointed by the Chief Justice for the purposes of this section. (Amended 25 of 1998 s. 2) (Added 50 of 1970 s. 2) "Registrar" (司法常務官) BANKRUPTCY ORDINANCE - SECT 99A Jurisdiction of Registrar VerDate:30/06/1997 (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) Notwithstanding 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" (司法常務官) 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) "Registrar" (司法常務官) BANKRUPTCY ORDINANCE - SECT 100 Discretionary powers of court VerDate:01/04/1998 (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. (Amended 76 of 1996 s. 51) (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.] BANKRUPTCY ORDINANCE - SECT 100 Discretionary powers of court VerDate:30/06/1997 (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.] BANKRUPTCY ORDINANCE - SECT 100A Court may make a regulating order VerDate:10/12/2007 (1) Where it appears to the court on application being made by the Official Receiver, the trustee or any creditor at any time after the presentation of a bankruptcy petition, 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 bankruptcy order, order that the bankruptcy proceedings shall be regulated specially by the court, and such order shall be known as a regulating order. (Amended 76 of 1996 s. 73; 18 of 2005 s. 38) (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. <* Note - Exp. X-Ref.: Sections 100B, 100C, 100D, 100E, 100F, 100G, 100H *> (3) Where a regulating order is made the Bankruptcy Rules (Cap 6 sub. leg. A) shall apply mutatis mutandis to the Official Receiver, trustee and creditors' committee 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. (Amended 76 of 1996 s. 74) (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. <* Note - Exp. X-Ref.: Sections 100B, 100C, 100D, 100E, 100F, 100G *> (Added 21 of 1965 s. 2) BANKRUPTCY ORDINANCE - SECT 100A Court may make a regulating order VerDate:01/04/1998 (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 bankruptcy order, order that the bankruptcy proceedings shall be regulated specially by the court, and such order shall be known as a regulating order. (Amended 76 of 1996 s. 73) (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. <* Note - Exp. X-Ref.: Sections 100B, 100C, 100D, 100E, 100F, 100G, 100H *> (3) Where a regulating order is made the Bankruptcy Rules (Cap 6 sub. leg. A) shall apply mutatis mutandis to the Official Receiver, trustee and creditors' committee 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. (Amended 76 of 1996 s. 74) (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. <* Note - Exp. X-Ref.: Sections 100B, 100C, 100D, 100E, 100F, 100G *> (Added 21 of 1965 s. 2) BANKRUPTCY ORDINANCE - SECT 100A Court may make a regulating order VerDate:30/06/1997 (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. <*Note - Exp. X-Ref: Sections 100B, 100C, 100D, 100E, 100F, 100G, 100H*> (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. <*Note - Exp. X-Ref: Sections 100B, 100C, 100D, 100E, 100F, 100G*> (Added 21 of 1965 s.2) BANKRUPTCY ORDINANCE - SECT 100B First meeting and composition VerDate:01/04/1998 (1) (Repealed 76 of 1996 s. 52) (2) The court may order that the wishes of creditors be ascertained for the purpose of accepting or rejecting any proposal in such manner as it may direct without the holding of meetings under section 20E, and for such purpose may direct the manner in which any proposal be communicated to such creditors. (Amended 76 of 1996 s. 52) (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 sections 20 to 20K, 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 proposal, the proposal shall be deemed to be duly accepted by the creditors, and when approved by the court shall be binding on all the creditors. <* Note - Exp. X-Ref.: Sections 20, 20A, 20B, 20C, 20D, 20E, 20F, 20G, 20H, 20I, 20J, 20K *> (Amended 76 of 1996 s. 52) (5) (Repealed 76 of 1996 s. 52) (Added 21 of 1965 s. 2) BANKRUPTCY ORDINANCE - SECT 100B First meeting and composition VerDate:30/06/1997 (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" (債務重整協議) 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) "composition" (債務重整協議) BANKRUPTCY ORDINANCE - SECT 100C (Repealed 76 of 1996 s. 53) VerDate:01/04/1998 BANKRUPTCY ORDINANCE - SECT 100C Adjudication VerDate:30/06/1997 (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) BANKRUPTCY ORDINANCE - SECT 100D Appointment and removal of trustee after the making of regulating order VerDate:10/12/2007 (1) The court may, on application being made by the Official Receiver or the trustee appointed or acting before the making of the regulating order under section 100A, by order appoint the person who makes the application or any other person recommended by him as trustee of the property of the bankrupt under the regulating order. (Replaced 18 of 2005 s. 39) (1A) The court may, on application being made by the Official Receiver, by order remove any trustee appointed under subsection (1) and fill any vacancy. (Added 18 of 2005 s. 39) (1B) On the making of an order under subsection (1) or (1A), section 81(1), (2) and (3) or 96(1) shall cease to apply to the bankruptcy and any action taken under such provisions before the making of the regulating order in respect of the appointment or removal of a trustee or filling of any vacancy shall cease to have effect. (Added 18 of 2005 s. 39) (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 nor the Official Receiver shall be required to summon any meetings of creditors save where the court so orders. (Added 21 of 1965 s. 2) BANKRUPTCY ORDINANCE - SECT 100D Trustee VerDate:01/04/1998 (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 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. (Amended 76 of 1996 s. 54) (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 nor the Official Receiver shall be required to summon any meetings of creditors save where the court so orders. (Added 21 of 1965 s. 2) BANKRUPTCY ORDINANCE - SECT 100D Trustee VerDate:30/06/1997 (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 nor the Official Receiver shall be required to summon any meetings of creditors save where the court so orders. (Added 21 of 1965 s.2) BANKRUPTCY ORDINANCE - SECT 100E Creditors' committee VerDate:01/04/1998 (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 creditors' committee 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. (Amended 76 of 1996 s. 74) (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) and any applicable rules related thereto shall cease to apply to the bankruptcy and any action taken under such provisions in respect of any appointment of a creditors' committee, any removal of any member thereof or the filling of any vacancy therein shall cease to have effect. (Amended 76 of 1996 ss. 55 & 74) (Added 21 of 1965 s. 2) BANKRUPTCY ORDINANCE - SECT 100E Committee of inspection VerDate:30/06/1997 (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) BANKRUPTCY ORDINANCE - SECT 100F Informing creditors and ascertaining their wishes VerDate:30/06/1997 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) BANKRUPTCY ORDINANCE - SECT 100G Creditors to give notice of intention to take part in public examination VerDate:10/12/2007 (1) The court may order that any creditor wishing to exercise his right to question the bankrupt on his public examination under section 19(5) shall give notice in writing of such intention to- (Amended 18 of 2005 s. 40) (a) in a case where the Official Receiver is the applicant for the public examination, the Official Receiver; or (b) in a case where the trustee is the applicant for the public examination, the trustee. (Amended 76 of 1996 s. 56; 18 of 2005 s. 40) (1A) The court may also direct that no creditor may exercise his right to question the bankrupt on his public examination under section 19(5) unless the notice under subsection (1) is received by the Official Receiver or the trustee, as the case may be, within such time as may be specified by the court. (Added 18 of 2005 s. 40) (2) For the purpose of this section the court may direct that notice of the public examination of a bankrupt 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. Amended 76 of 1996 s. 72) BANKRUPTCY ORDINANCE - SECT 100G Creditors to give notice of intention to take part in public examination VerDate:01/04/1998 (1) The court may order that any creditor wishing to exercise his right to question the bankrupt on his public examination under section 19(5) 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. (Amended 76 of 1996 s. 56) (2) For the purpose of this section the court may direct that notice of the public examination of a bankrupt 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. Amended 76 of 1996 s. 72) BANKRUPTCY ORDINANCE - SECT 100G Creditors to give notice of intention to take part in public examination VerDate:30/06/1997 (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) BANKRUPTCY ORDINANCE - SECT 100H Proof of debts in the case of banks VerDate:10/12/2007 (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 or trustee by notice in writing requires him to make a formal proof of debt, be deemed to have proved his debt- (Amended 18 of 2005 s. 41) (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 bankruptcy order: (Amended 76 of 1996 s. 73) 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 to 20K and 100B(4); and <* Note - Exp. X-Ref.: Sections 20, 20A, 20B, 20C, 20D, 20E, 20F, 20G, 20H, 20I, 20J, 20K *> (Amended 76 of 1996 s. 57) (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 bankruptcy order. (Amended 76 of 1996 s. 73) (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) BANKRUPTCY ORDINANCE - SECT 100H Proof of debts in the case of banks VerDate:01/04/1998 (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 bankruptcy order: (Amended 76 of 1996 s. 73) 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 to 20K and 100B(4); and <* Note - Exp. X-Ref.: Sections 20, 20A, 20B, 20C, 20D, 20E, 20F, 20G, 20H, 20I, 20J, 20K *> (Amended 76 of 1996 s. 57) (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 bankruptcy order. (Amended 76 of 1996 s. 73) (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) BANKRUPTCY ORDINANCE - SECT 100H Proof of debts in the case of banks VerDate:30/06/1997 (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) BANKRUPTCY ORDINANCE - SECT 101 Consolidation of petitions VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 102 Power to change carriage of proceedings VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 103 Continuance of proceedings on death of debtor VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 104 Power to stay proceedings VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 105 Power to present petition against one partner VerDate:01/04/1998 Any creditor 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. (Amended 76 of 1996 s. 58) [cf. 1914 c. 59 s. 114 U.K.] BANKRUPTCY ORDINANCE - SECT 105 Power to present petition against one partner VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 106 Power to dismiss petition against some respondents only VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 107 Actions by trustee and bankrupt's partners VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 108 Actions on joint contracts VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 109 Proceedings in partnership name VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 110 Disobedience to order of court VerDate:01/04/1998 PART VII SUPPLEMENTAL PROVISIONS Disobedience to order of court Where default is made by a trustee, bankrupt 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, bankrupt or other person for contempt of court: 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. (Amended 76 of 1996 s. 72) [cf. 1914 c. 59 s. 105(5) U.K.] BANKRUPTCY ORDINANCE - SECT 110 Disobedience to order of court VerDate:30/06/1997 PART VII SUPPLEMENTAL PROVISIONS 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.] BANKRUPTCY ORDINANCE - SECT 111 Exclusion of corporations, companies and limited partnerships VerDate:01/04/1998 Application of Ordinance (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule) A bankruptcy 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). (Amended 76 of 1996 s. 73) [cf. 1914 c. 59 s. 126 U.K.] BANKRUPTCY ORDINANCE - SECT 111 Exclusion of corporations, companies and limited partnerships VerDate:30/06/1997 Application of Ordinance (Amended 33 of 1939; G.N. 840 of 1940 Supp. Schedule) 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.] BANKRUPTCY ORDINANCE - SECT 112 Administration in bankruptcy of estate of person dying insolvent VerDate:01/04/1998 Adaptation amendments retroactively made - see 25 of 1998 s. 2 (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. (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 High 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. (Amended 25 of 1998 s. 2) (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: Provided that the creditors shall have the same powers as to appointment of trustees and creditors' committees 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 creditors' committees shall apply to trustees and creditors' committees appointed under the power so conferred. If no creditors' committee is appointed any act or thing or any direction or permission which might have been done or given by a creditors' committee may be done or given by the court. (Amended 76 of 1996 s. 74) (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) (Repealed 76 of 1996 s. 59) (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). (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.] BANKRUPTCY ORDINANCE - SECT 112 Administration in bankruptcy of estate of person dying insolvent VerDate:01/07/1997 Adaptation amendments retroactively made - see 25 of 1998 s. 2 (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 High 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. (Amended 25 of 1998 s. 2) (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: 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. (See Form 136) (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.] BANKRUPTCY ORDINANCE - SECT 112 Administration in bankruptcy of estate of person dying insolvent VerDate:30/06/1997 (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: 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. (See Form 136) (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.] BANKRUPTCY ORDINANCE - SECT 112A Application of Ordinance to small bankruptcies VerDate:10/12/2007 (1) Subject to subsection (2), where a bankruptcy order is made against a debtor and- (Amended 76 of 1996 s. 60) (a) the court receives proof to its satisfaction; or (b) the provisional trustee reports to the court, that the property of the debtor is not likely to exceed in value $200000, 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 first meeting of creditors shall be dispensed with; (Replaced 76 of 1996 s. 60) (i) the provisional trustee shall be the trustee in the bankruptcy; (Amended 76 of 1996 s. 60) (ii) there shall be no creditors' committee, and the trustee may do all things which may be done by a trustee with the permission of a creditors' committee; (Amended 76 of 1996 s. 74) (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 bankrupt. (Amended 76 of 1996 s. 72) (2) The court may, upon the application of the trustee, at any time before the discharge of the bankrupt rescind an order made under subsection (1) and thereupon the administration shall proceed as if the order had not been made. (Amended 76 of 1996 s. 72) (Added 1 of 1976 s. 6. Amended 18 of 2005 s. 42) [cf. 1914 c. 47 s. 129 U.K.] BANKRUPTCY ORDINANCE - SECT 112A Application of Ordinance to small bankruptcies VerDate:01/04/1998 (1) Subject to subsection (2), where a bankruptcy order is made against a debtor and- (Amended 76 of 1996 s. 60) (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 $200000, 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 first meeting of creditors shall be dispensed with; (Replaced 76 of 1996 s. 60) (i) the Official Receiver shall be the trustee in the bankruptcy; (Amended 76 of 1996 s. 60) (ii) there shall be no creditors' committee, and the Official Receiver may do all things which may be done by a trustee with the permission of a creditors' committee; (Amended 76 of 1996 s. 74) (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 bankrupt. (Amended 76 of 1996 s. 72) (2) The court may, upon the application of the Official Receiver, at any time before the discharge of the bankrupt rescind an order made under subsection (1) and thereupon the administration shall proceed as if the order had not been made. (Amended 76 of 1996 s. 72) (Added 1 of 1976 s. 6) [cf. 1914 c. 47 s. 129 U.K.] BANKRUPTCY ORDINANCE - SECT 112A Application of Ordinance to small bankruptcies VerDate:30/06/1997 (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 $200000, 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.] BANKRUPTCY ORDINANCE - SECT 113 Power to make general rules VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 114 Fees and remuneration VerDate:01/04/1998 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 bankrupt, or any part thereof, either absolutely or on such terms as it may think fit. (Amended 76 of 1996 s. 72) (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.] BANKRUPTCY ORDINANCE - SECT 114 Fees and remuneration VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 115 Disposal of Official Receiver's fees VerDate:10/12/2007 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 trustee or otherwise, shall be paid by such officer forthwith into the general revenue. (Amended 47 of 1984 s. 13; 18 of 2005 s. 43) BANKRUPTCY ORDINANCE - SECT 115 Disposal of Official Receiver's fees VerDate:30/06/1997 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) BANKRUPTCY ORDINANCE - SECT 116 Evidence of proceedings at meetings of creditors VerDate:30/06/1997 Evidence (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.] BANKRUPTCY ORDINANCE - SECT 117 Evidence of proceedings in bankruptcy VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 118 Swearing of affidavits VerDate:01/07/1997 Adaptation amendments retroactively made - see 25 of 1998 s. 2 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 person qualified to administer oaths in the country where he resides. (Amended 47 of 1984 s. 16; 25 of 1998 s. 2) [cf. 1914 c. 59 s. 140 U.K.] BANKRUPTCY ORDINANCE - SECT 118 Swearing of affidavits VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 119 Death of debtor or witness VerDate:01/04/1998 In the case of the death of the bankrupt or his spouse, 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. (Amended 76 of 1996 ss. 71 & 72) [cf. 1914 c. 59 s. 141 U.K.] BANKRUPTCY ORDINANCE - SECT 119 Death of debtor or witness VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 120 Statements made to Official Receiver or trustee through an interpreter VerDate:01/04/1998 Any statement made by a bankrupt 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. (Amended 76 of 1996 s. 72) BANKRUPTCY ORDINANCE - SECT 120 Statements made to Official Receiver or trustee through an interpreter VerDate:30/06/1997 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. BANKRUPTCY ORDINANCE - SECT 121 Certificate of appointment of trustee VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 122 Computation of time VerDate:18/09/1998 Miscellaneous (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 General Holidays Ordinance (Cap 149) shall not be reckoned in the computation of such time. (Amended 35 of 1998 s. 5) (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 High Court Ordinance (Cap 4). (Amended 92 of 1975 s. 58; 25 of 1998 s. 2) [cf. 1914 c. 59 s. 145 U.K.] BANKRUPTCY ORDINANCE - SECT 122 Computation of time VerDate:01/07/1997 Amendments retroactively made - see 25 of 1998 s. 2 Miscellaneous (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 High Court Ordinance (Cap 4). (Amended 92 of 1975 s.58; 25 of 1998 s. 2) [cf. 1914 c.59 s.145 U.K.] BANKRUPTCY ORDINANCE - SECT 122 Computation of time VerDate:30/06/1997 Miscellaneous (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.] BANKRUPTCY ORDINANCE - SECT 123 Service of notices VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 124 Formal defect not to invalidate proceedings VerDate:10/12/2007 (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 trustee or member of a creditors' committee shall vitiate any act done by him in good faith. (Amended 76 of 1996 s. 74; 18 of 2005 s. 44) [cf. 1914 c. 59 s. 147 U.K.] BANKRUPTCY ORDINANCE - SECT 124 Formal defect not to invalidate proceedings VerDate:01/04/1998 (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 creditors' committee shall vitiate any act done by him in good faith. (Amended 76 of 1996 s. 74) [cf. 1914 c. 59 s. 147 U.K.] BANKRUPTCY ORDINANCE - SECT 124 Formal defect not to invalidate proceedings VerDate:30/06/1997 (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.] BANKRUPTCY ORDINANCE - SECT 125 Exemption of documents from stamp duty VerDate:30/06/1997 (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" (轉易書) includes deed, conveyance, assignment and surrender. (Replaced 31 of 1981 s. 65) "assurance" (轉易書) BANKRUPTCY ORDINANCE - SECT 126 Acting of corporations, partners, etc. VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 127 Certain provisions to bind Crown VerDate:01/04/1998 Save as provided in this Ordinance, the provisions of this Ordinance relating to the remedies against the property of a bankrupt, the priorities of debts, the effect of a voluntary arrangement, and the effect of a discharge, shall bind the Crown. (Amended 76 of 1996 ss. 61 & 72) [cf. 1914 c. 59 s. 151 U.K.] BANKRUPTCY ORDINANCE - SECT 127 Certain provisions to bind Crown VerDate:30/06/1997 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.] BANKRUPTCY ORDINANCE - SECT 128 Unclaimed and undistributed dividends or funds VerDate:01/04/1998 Unclaimed funds or dividends (1) Where- (a) a trustee, other than the Official Receiver, under any bankruptcy; or (b) a nominee under any voluntary arrangement, 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 bankrupt 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 bankrupt, 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; 76 of 1996 ss. 62 and 72) (1A) Where the Official Receiver is the trustee under any bankruptcy or the nominee under any voluntary arrangement, and, pursuant to this Ordinance has under his control any unclaimed dividend which