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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 19A (Repealed 76 of 1996 s. 13) VerDate:01/04/1998 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 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 22 (Repealed 76 of 1996 s. 13) VerDate:01/04/1998 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 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 25 (Repealed 76 of 1996 s. 16) VerDate:01/04/1998 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 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 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 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 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 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 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 31 (Repealed 76 of 1996 s. 22) VerDate:01/04/1998 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 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 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 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 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 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 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 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 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 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 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 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 47 (Repealed 76 of 1996 s. 34) VerDate:01/04/1998 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 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 49A (Repealed 76 of 1996 s. 36) VerDate:01/04/1998 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 unle