CO129-251 - Acting Governor Barker - 1891 [9-11] — Page 537

Sub. Enclosure to Encl. 20. O.

REPORT.

R

.C.O.

24057

24 RECO

Red 15 DEC 91

The Law Committee one of the Standing Committees of the Legislative Council of Hongkong up Bill entitled “ An Ordinance to amend the Law relating to Bankruptcy."

Your Committee have the honour to report as follows:--

535

1. This bill was read a second time in Council on the 8th December, 1890, and was referred to the above Committee for report on the 30th January last.

2. The delay in making this report has been due to various causes, but chiefly to changes in the constitution of the Committee and to the pressure of other work; and in consequence your Committee was not able to commence its sittings until the 25th June last and the consideration of the bill occupied your Committee till the end of August last. Your Committee held its final meeting to approve this Report on the 8th October, 1891.

3. Your Committee have annexed to this Report a printed copy of the Bill (which will also be circulated with this Report amongst the members of Council) showing in italics the amendments they have made and which they recommend for adoption.

4. The Bill itself was based on the Imperial Bankruptcy Act, 1883, and its principles and the changes in the law proposed to be introduced were so fully detailed on the 2ud reading that it is not deemed necessary to repeat them in this Report.

5. The following are the chief amendments which have been made:--

(1) In section 3 the definition of "property" has been enlarged so as to embrace every kind of property and to place it more on the lines of the English Act. Aud definitions of "Trusfee" and "Registrar" have been added.

(2) In section 4 (e) and (g) slight amendments have been effected, in one case by altering the section in accordance with the hoperial Amendment Act of 1890 and in the other to make the sub-section more definite.

(3) In section 6 the amount for which a creditor may present a bankruptcy petition is increased from $200 to $300 to make it correspond more ucarly to the English Act 1883 which states that the amount shall be $50 and similarly in sub-section 1 (c) the period of six months is changed to three.

(4) Under section 10 as originally drawn on the making of a receiving order creditors were in effect prohibited from continuing or commencing any action or taking out exccution except by leave of the Court for which they would apparently have to make special application: as now altered the section provides that on the making of a receiving order the Court is by the receiving order to direct whether any action, &c. is to be stayed and if stayed upon what terms, such terms including the requirement that the debtor is to find security for his appearance and obedience to all orders of the Court in the relation to his bankruptcy. In many cases under the old practico a debtor filed his petition and got protection from arrest almost as a matter of course. Having got protection he did nothing more and took no steps for the proper realization of his assets or the handing over of his property for the benefit of his creditors and his petition had really for its sole object personal immunity from arrest and was not a bond fide application. Your Committee think that the provision requiring security to be given for the debtor's due appearance as one of the terius of immunity from actions and arrest will have a wholesome effect in stopping fictitions bankruptcies and in securing the proper rendering of account and the discovery and handing over to the Trustee of the debtor's property.

(5) In section 24 the words "has absconded or have been inserted and similar words have been introduced into the Imperial Act of 1833 by the Imperial Amendment Act of 1890. (6) The next important amendment is in section 27.

The first amendment is by adding a sub-section which is now numbered (2) enabling the Court to call upon the Bankrupt to come up for discharge where he does not apply himself within a reasonable time and your Committee think this a very desirable amendment to incot cases where the Bankrupt has committed misdementours or other offences against the Bankruptcy Law and knowing he has done so is not be likely to come up of his own accord.

As originally drafted sub-section 2 now sub-section 3 required the Court to refuse to discharge the Bankrupt in all cases of misdemeanours under the Ordinance and in case of proof of certain facts to refuse to discharge or suspend the discharge or grant it on conditious.

The misdemeanours alluded to are those mentioned in section $2, but they are only punishable upon conviction before a Judge and jury, ¿e., in separate proceedings and not in the Bankruptcy pro- ceedings.