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Report on Bankruptcy

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Report on Bankruptcy THE LAW REFORM COMMISSION OF HONG KONG REPORT ON BANKRUPTCY CONTENTS Chapter Page Introduction Terms of Reference Summary of Work Abbreviations THE BANKRUPTCY ORDINANCE (CAP 6) 1. Grounds for presenting a bankruptcy petition The present law Abolition of acts of bankruptcy Failure to comply with a statutory demand Unsatisfied execution of a judgment debt Absconding debtors Expediting the presentation of the petition Individual voluntary arrangements Recommendations 2. Jurisdiction of the court The present law Widening the jurisdiction Having assets in Hong Kong at the date of the bankruptcy order Benefit accruing Bankruptcy jurisdiction Recommendations 3. Minimum Debt The Present Law Individual employees Net minimum debt amount Debtor's petition Recommendations 4. Petitioner's Statutory Deposit The Present Law Reduction in the amount of the statutory deposit Summary procedure Adjustment of the statutory deposit Recommendations 5. Bankruptcy orders The Present Law Single bankruptcy order Consumer debtors Secured creditors Interim receiver Proceedings against a bankrupt Recommendations 6. Individual Voluntary Arrangements The present law Effect of recommendation for single bankruptcy order Insolvency practitioners The voluntary arrangement procedure Recommendations 7. Annulment of the Bankruptcy Order The present law Power of the court to annul a bankruptcy order Annulment after discharge Advertising and gazetting of annulment On the application of any person interested The 15 per cent rule Individual voluntary arrangements Recommendations 8. Meetings of Creditors The present law Discretion in the Official Receiver whether to hold a first meeting Meeting at the request of creditors Quorum Consolidation of provisions in the Bankruptcy Ordinance Recommendations 9. Creditors’ committee and the control and duties of the trustee The present law Creditors' committee Meetings only when necessary and agreed Representation by letter of authority Resolutions by post Control of the Official Receiver or trustee Powers of the trustee with or without the sanction of the committee Disagreements between the committee and the trustee The trustee's duties Recommendations 10. Statement of affairs The present law Time for submission of the statement of affairs Dispensing with the statement of affairs Extension of time for submission of the statement of affairs Contempt of court Form of statement of affairs Recommendations 11. Public Examination The present law Self incrimination Legal representation Public examination only when necessary Rights of creditors Confidentiality of the trustee's report Creditors to supply the Official Receiver with a list of questions Costs Perjury on examination The Northern Irish procedure Record of the Examination Minority view Recommendations 12. Private Examination The present law Self incrimination Extent of the examination Legal representation Solicitor - client privilege Examination of the bankrupt or the bankrupt's spouse dmission by the respondent of indebtedness to or possession of property belonging to the debtor Inter partes and ex parte applications for private examination Submission of affidavits and delivery of documents by the respondentInterrogatories Confidentiality of a trustee's report Payment of costs of the examination by a respondent Power of court to order an Inland Revenue Official to produce tax documents of the bankrupt Perjury on examination Recommendations 13. Bankrupt’ s property divisible among creditors The present law The $3,000 monetary limit The tools of a bankrupt's trade or business Proposal for a voluntary arrangement Business related bankruptcy Non-business related bankruptcy Domestic needs The family home Reputed ownership Property acquired by a bankrupt after bankruptcy Recommendations 14. Relation back of the trustee’ s title The present law Recommendations 15. Proof of debt The present law Foreign currencies Tort claims Fines and penalties Confiscation of assets Minority view Swearing of proofs of debt and false proofs of debt Admission of claims Recommendations 16. Declaration and distribution of dividends The present law Recommendations 17. Discharge The present law Automatic discharge Objection to and suspension of automatic discharge Length of time objections should subsist Subsequent bankruptcy Early discharge Transitional Recommendations 18. Statutory undertakings The present law Individual voluntary arrangements Recommendations 19. Interest on debts The present law Section 71(1) : The interest limitation rule Creditors who are not entitled to claim interest Section 71(2)(a) to (c) Guarantors Third party security Extortionate credit transactions Recommendations 20. Summary of recommendations Annexures Annexure 1 :Adjudications and dividends declared Annexure 2 :General Bankruptcy Statistics INTRODUCTION Terms of reference 1. On 14th September 1990, under powers granted by the Governor-in-Council on 15 January 1980, the Attorney General and the Chief Justice referred the following topic to the Law Reform Commission: "(1) To review the law and practice relating to the insolvency of both individuals and bodies corporate in Hong Kong, and in particular- (a) the provisions of the Bankruptcy Ordinance, Chapter 6, in their application both to business and non- business debtors; and (b) the winding-up provisions of the Companies Ordinance, Chapter 32 taking into account existing and proposed legislation in other jurisdictions, and in particular the UK Insolvency Act 1986 and Chapter 11 of the U.S. Bankruptcy Code, and to consider what reforms are necessary or desirable. (2) To submit an early interim report on - (a) such changes in the Bankruptcy Ordinance as are considered to be required for simplifying bankruptcy procedures, and (b) any other aspects of insolvency law or practice which the Commission considers should be introduced in advance of the Commission's final report." 2. The Law Reform Commission appointed a sub-committee to examine this topic, chaired by Professor Edward L G Tyler, Professor and Head of Department of Professional Legal Education at the City University of Hong Kong and a former member of the Law Reform Commission. The other members of the sub-committee are: Mr Mark Bradley, Solicitor, Deacons Mr Graham Cheng OBE JP, Chairman, Taching Petroleum Co Ltd Mr Cheung Wood-lun, Secretary, Hong Kong & Kowloon Cement & Concrete Construction Trade Workers (resigned in February 1993) Mr Nicholas Etches, Accountant, KPMG Peat Marwick Mr Stefan Gannon, General Counsel to the Hong Kong Monetary Authority Mr David Hague, Accountant, Price Waterhouse (appointed in January 1993) Mr Robin Hearder JP, Official Receiver Ms Barbara Martin, Solicitor, Carey & Lui Mr Michael Page, Senior Manager, Hong Kong & Shanghai Banking Corporation Ltd Mr Winston Poon, Barrister Mr Ian Robinson, Accountant, Ernst & Young 3. The Secretary to the sub-committee was Jeremy Glen, Senior Solicitor in the Official Receiver's Office, who was seconded to the Law Reform Commission for the purposes of this report and who was responsible for the task of drafting the sub-committee report which forms the basis of this Commission report. We record here our appreciation of the immense amount of hard work devoted to this project by the members and secretary of the sub- committee. This report addresses part (2)(a) and certain aspects of part 2(b) of the terms of reference. The sub-committee is now working on some of the other aspects of the reference and the Commission expects to issue two further reports in due course before the reference is complete. Summary of work 4. The sub-committee held its first meeting on 12th November 1990 and met a total of 53 times in completing its report on bankruptcy. 5. The sub-committee concentrated on consideration of aspects of the Bankruptcy Ordinance which the Official Receiver had originally referred to as requiring amendment. In addition to the Official Receiver's proposals, the sub-committee received submissions on other aspects of the Bankruptcy Ordinance and some of these have been incorporated in this Report. 6. In August 1993, the sub-committee issued a Consultative Document1, setting out its initial proposals on bankruptcy. The submission period lasted for ten weeks to the 1 See paragraph 11 below. middle of October 1993 and the sub-committee received over seventy responses. Twenty of these were substantive with wide ranging comment on the topics addressed in the Consultative Document. It is fair to say that, while reservations were expressed about certain issues, the Consultative Document was generally welcomed. 7. The sub-committee’ s final report was considered by the Commission at four meetings, from December 1993 to March 1994. The final text of this Report was agreed in March 1995 after some outstanding issues were resolved. Where the conclusions in this final Commission report differ from those of the sub-committee, we have endeavoured to make this clear. 8. The Bankruptcy Ordinance (Cap 6) is almost entirely based on the Bankruptcy Act of 1914 in England and Wales. The Bankruptcy Act 1914 was replaced in 1986 by the Insolvency Act 19862 which was the result of a Report of the Review Committee on Insolvency Law and Practice, commonly referred to as "the Cork Report". 3 In 1988 the Law Reform Commission of Australia published a Report on its General Insolvency Inquiry, commonly referred to as "the Harmer Report". 4 The Harmer Report has led to some amendments having recently been made to bankruptcy law in Australia under the Bankruptcy Amendment
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