Mr. MUIR MACKENZIE suggests the desirability of an enactment providing that "a debtor" in section of the Bankruptcy Ordinance, 1891, should mean that which, in the Appellant's argument in Cooke v. Vogeler it was contended it did mean, namely, a person who fulfilled the requirements of sub-section 1 (d.) of section 6 of the English Act of 1883, and that the meaning of "a debtor" should not, in the case of a foreigner carrying on business in the Colony, be confined to a person who is personally present in the jurisdiction when he does the act which by the Statute is made “an act of bankruptcy.”
Section 4 of Ordinance 2 of 1901 made the wording of section 6 (1.) (d.) of our local Bankruptcy Ordinance precisely similar to section 6 (1.) (d.) of the English Act.
Section 6 (1.) (d) in both the English Act and the Hong Kong Ordinance, therefore, now reads as follows:--
(d) The debtor is domiciled in the Colony or, within a year before the date of the petition, has ordinarily resided or had a dwelling house or place of business in the Colony,
The object of the present Ordinance is to make the further amendment pointed out by Mr. MUIR MACKENZIE as desirable.
There can be little doubt that Ordinance No. 2 of 1901, as supplemented by this Ordinance, effects a considerable improvement in our local law, having regard to the special circumstances of Hongkong.
The Lord CHANCELLOR in Cooke v. Vogeler stated:-
"I am by no means prepared to say that it might not be a reasonable thing to apply the English law of bankruptcy to a trader who, though himself personally abroad, exercised a trade through the instrumentality of an agent, and possessed assets in this country capable of being reached by bankruptcy administration."
It is satisfactory that, at present, the Bankruptcy Amendment Ordinance, 1901, has not been disallowed. It deals chiefly with Bankruptcy proceedings against firms, and Chinese firms in this Colony are very numerous and are constituted in a way peculiar to China, and legislation applicable to the special requirements of this Colony, though perhaps not suited to the business conditions obtaining in England and most of the other Colonies, is necessary here.
Although, in England, a firm cannot be adjudicated Bankrupt there is no reason why this should be so in Hong Kong. The chief practical effect here of such an adjudication is to render the joint and several property of all the partners, so far as it can be got at, available to pay debts, and for years previous to the local decision referred to (July, 1900) Chinese firms had been adjudicated Bankrupt without any special difficulty arising.
In practice, property in China, out of the jurisdiction, cannot be obtained by the trustee; and, as regards any alteration of status, a Chinaman out of the jurisdiction who does not come to Hongkong would probably care little for the adjudication and not be sensible of any change of status whatever.
The chief advantage is that the joint property of the firm in this Colony would be affected, and while it is often most difficult to ascertain who the partners really are and what property each may individually possess, it is much easier to ascertain whether certain property belongs to the firm (with its fancy name) or not.
W. Weigh Gordon
Attorney General.
DRAFT.
You Hay Kay
15618
The Secretary
to the Board of Trade
A.F.
29/9
9%6 Ord 9%6 of 1802
utay
A.G!, refert quicij.
102
Anod 1yaby
With ref to yr. letter
(B.771) of the 13th June last on the subject of the Bankruptcy Law Sanctioned
A H. Rong
of
by
the Sec C. to transmit
to you,
to be laid before the
Bd. of Trade, copy of an draft Ord/" to further amend the Bankruptcy Ord, 1891," which has been recently received from the Colony, together with the Attorney General's report.