Butterworths Hong Kong Bankruptcy Law Handbook, 3rd Edition

In the five years which have lapsed since the previous edition of this Handbook, bankruptcy law in Hong Kong has become more and more important. Not only is there an increase in the number of bankruptcy cases that have received judicial consideration in various provisions of the Bankruptcy Ordinance, the concept of individual voluntary arrangement (IVA) is also widely used as a means of debt restructuring for individuals. This serves as a catalyst for the introduction of the Bankruptcy (Amendment) Bill 2004. The Bill was first introduced to the Legislative Council on 13 October 2004 and was passed on 6 July 2005. The Bankruptcy (Amendment) Ordinance 2005 has yet to come into effect, though it is expected that it will take effect in the foreseeable future. All the amendments in this Bankruptcy (Amendment) Ordinance 2005 have been included in this edition with indications.

The highlights of the Bankruptcy (Amendment) Ordinance 2005 include:

(a) empowering the Official Receiver to outsource bankruptcy cases to private sector insolvency practitioners in specified circumstances;

(b) providing for the powers and duties of a provisional trustee;

(c) following the introduction of the outsourcing regime, adjusting or further providing for the respective powers and duties of the Official Receiver and a trustee;

(d) amending the priority of payment of costs and charges out of a bankrupt’s estate as set out in s 37 of the Bankruptcy Ordinance (Cap 6) to bring the section in line with rule 179(1) of the Companies (Winding-up) Rules (Cap 32H);

(e) adopting ss 38, 75 and 91 of the Bankruptcy Ordinance (Cap 6) to bring them into conformity with the Basic Law and with the status of Hong Kong as a Special Administrative Region of the People's Republic of China; and

(f) updating certain outdated provisions and making other amendments related to or consequent upon the matters set out in paragraphs (a), (b) and (c).

Another development, though less sensational is the recent case, Chan Wing Hing & Another v Chan Wing Hing & Another & Secretary for Justice (Intervener) [2006] 3 HKLRD 687 (CFA), where it was held that that s 30(10)(b)(ii) of the Bankruptcy Ordinance was unconstitutional and contravened Article 31 of the Basic Law, which provides that Hong Kong residents… shall have freedom to travel and to enter or leave the Region. Bankruptcy law is a complex but practical area. It is felt that more and more bankruptcy cases will receive judicial consideration and this justifies a new edition incorporating all important cases both in Hong Kong and the United Kingdom.