TNAG-0872-FCO40-1082-Legislation-for-employment-in-Hong-Kong-1979 — Page 40

A60

Ord. No. 21/79

BANKRUPTCY (AMENDMENT)

BANKRUPTCY (AMENDMENT)

Ord. No. 21/79

A61

(Cap. 221.)

PART II

APPLICATION OF THE ORDINANCE IN PROCEEDINGS BASED ON A

CRIMINAL BANKRUPTCY ORDER

Criminal bankruptcy petition

4. No criminal bankruptcy petition shall be presented by the person who under paragraph 2 is the debtor; and, in relation to such a petition presented by a creditor, section 6 shall have effect with the following modifications--

(a) subsections (1)(a) and (b) and (2) (conditions as to nature of

debt) shall not apply to a criminal bankruptcy debt; and (b) subsection (1)(d) (domicile of debtor) shall be omitted.

Receiving order

5. For the purposes of section 9(2) and (3) (matters to be proved before receiving order is made) the act of bankruptcy which a person is treated by this Schedule as having committed and any criminal bankruptcy debt shall be treated as conclusively proved by the production of a copy of the criminal bankruptcy order in question and the following pro- visions of that section shall not apply in relation to any such debt--

(a) so much of subsection (3) which provides that if the court is not satisfied that the assets for division among the unsecured creditors, after payment of all costs, charges and expenses, and the debts which are preferential under that Ordinance, will be sufficient to pay a dividend of 15 per cent, it may dismiss the petition;

(b) subsection (5);

(c) subsection (6).

Trustee of criminal bankrupt's property

6. Where a person is adjudged bankrupt in proceedings pursuant to a criminal bankruptcy petition the Official Receiver shall in the bank- ruptcy be the trustee of the property of the bankrupt and section 23 shall not apply in relation to any such proceedings.

Proof of criminal bankruptcy debt in bankruptcy proceedings

7. (1) For the purpose of proving a criminal bankruptcy debt in proceedings pursuant to a criminal bankruptcy petition, a copy of the criminal bankruptcy order specifying the amount deemed by virtue of paragraph 3 to be due as a debt shall, subject to paragraph 5, be treated as sufficient evidence of the debt unless it is shown by any party to the proceedings that the amount of the relevant loss or damage is greater or less than the amount specified in the order or that the loss or damage did not in fact result from any offence specified in the order; and if it is shown by any party to the proceedings that the amount of the relevant loss or damage is other than that specified in the order, paragraph 3 shall have effect as if that other amount had been specified in the order, but without prejudice to the validity of the order if the amount of the relevant loss is shown not to exceed $150,000 or such other amount as may be specified in an order made under section 84A(5) of the Criminal Procedure Ordinance.

(2) Nothing in this paragraph or paragraph 3 shall be taken as prejudicing the proof in proceedings pursuant to a criminal bankruptcy petition of debts other than criminal bankruptcy debts.

(3) Nothing in sub-paragraph (1) shall be construed as entitling any person to contend that the offence or offences specified in a criminal bankruptcy order were not committed by the person against whom the order was made.

Recovery of assets for benefit of criminal bankrupt's creditors

8. (1) Without prejudice to any other provision of this Ordinance, sub-paragraphs (2) to (5) shall apply, where a person is adjudged bankrupt in proceedings pursuant to a criminal bankruptcy petition, with respect to dispositions of property or any interest in property made by the bankrupt on or after the relevant date, either by way of gift or for an under-value.

In this sub-paragraph, "relevant date" means the date specified in the criminal bankruptcy order (in accordance with section 84A(3)(d) of the Criminal Procedure Ordinance) as the earliest date on which the (Cap. 221.) offence or, as the case may be, the earliest of the offences, was committed.

(2) On the application of the Official Receiver (in his capacity as trustee) the court may make orders requiring-

(a) the person taking under any such disposition; or

(b) subject to sub-paragraph (3), any other person who by virtue of any subsequent disposition acquired (whether or not from the person taking under the bankrupt's disposition) the whole or any part of the property or any interest therein,

to transfer the whole or any part of the property, or such interest as the order may specify, to the trustee, or to make such payments to the trustee as the court thinks just with a view to making available to the creditors the full value of the property or interest disposed of by the bankrupt (including any increase in its value since the disposition was made).

(3) No order shall be made by virtue of sub-paragraph (2)(b) against a person appearing to the court to have given full value for anything taken by him under a relevant disposition or to claim (directly or in- directly) through a person who gave full value.

(4) An order of the court under this paragraph requiring a person to transfer any property or interest may include such consequential directions for giving effect to the order, and be made on such terms (including in particular terms allowing the person to retain or recover consideration given by him for any relevant disposition) as the court thinks just in all the circumstances.

(5) In this paragraph, "disposition" includes any conveyance or assurance of property of any description.

Administration in bankruptcy of deceased offender's estate

9. (1) Where an order for administration is made under section 112 on a criminal bankruptcy administration petition, so much of sub- section (4) of that section as enables the creditors to appoint a trustee of the property of the debtor in place of the Official Receiver shall not apply.

(2) Paragraph 7 shall apply in relation to proof of criminal bank- ruptcy debts in proceedings pursuant to a criminal bankruptcy administra- tion petition as it applies in relation to proof of such debts in proceedings pursuant to a criminal bankruptcy petition.

Bankruptcy proceedings otherwise than by virtue of this Schedule

10. Where a criminal bankruptcy order has been made against any person and a bankruptcy petition has been presented in respect of him