HONG KONG LEGISLATIVE
COUNCIL
12 July 1989
香港立法局————————————一九八九年七月十二日
46
institution to represent the management, and given the general absence of liability on his part.
Mr. LI's second point is his wish to limit specifically the application of this law to transactions taking place in Hong Kong. Clause 25(1) clearly states that a person must enter into an arrangement before he can commit an offence. There is no need for the law to state that entering into an arrangement must take place in Hong Kong because there is a common law presumption that, in the absence of clear and compelling words, statutes will not be given extra-territorial effect. Laws in Hong Kong are all drafted on the basis of this presumption and there is no reason to depart from the principle in this case.
With the foregoing explanation and assurance, Sir, there is no need for bank employees to fear that they will be put into a difficult position by the proposed legislation. Nevertheless, in view of the continuing concern of the financial sector, I agree that this part of the legislation should be kept under review in the light of practical experience gained from its operation and that a report should be made to this Council in due course.
Turning to the points made by Mr. Peter WONG, I note his concern that the operation of restraint orders should not be allowed to hurt bona fide creditors. I can assure Mr. WONG that this is not the intention of the legislation. In the United Kingdom it has been accepted by the courts that restraint orders made under the Drug Trafficking Offences Act, the legislation corresponding to our own Bill, operate on similar principles to the legally well- known "Mareva" injunctions in civil law. Thus, in making a restraint order, the court will ensure that it does not operate oppressively against third party creditors in respect of a defendant's bona fide business and trade debts, living expenses, legal expenses and other similar expenses. Provision will be made in the Supreme Court rules for conditions and exceptions to be attached to restraint orders. The courts should thus ensure that bona fide creditors are not prejudiced.
Miss LAU has discussed in detail various issues relating to the Chinese text which have been examined by the sub-group on the Chinese text which she has chaired. I wish to express my gratitude to her and her sub-group for the amendments which have resulted from their painstaking work and from the skill in which they have matched the Chinese wording to the complexities of English
text.