RE LAU KIT FUNG

RE LAU KIT FUNG

Even if Section 134(2) should be interpreted to prevail over Section 138 as the specific provision, Section 134(2) is void for being inconsistent with the separation of powers under Articles 63, 80 and 85 of the Basic Law; consequently the application for an order to prosecute was dismissed.

Citation
RE LAU KIT FUNG
Parties
Debtor: LAU KIT FUNG; Applicant: The Official Receiver; Judge: Hon Lam J
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
8 July 2005
Case Number
HCB10764/2003
Procedural Posture
Bankruptcy / Ex Parte Application for Prosecution Under Section 134(1) of the Bankruptcy Ordinance
Outcome
Application dismissed
Legal Topics
Separation of Powers, Prosecution Authorization, Statutory Interpretation, Section 134 Bankruptcy Ordinance, Section 138 Bankruptcy Ordinance
Source Language
EN
Constitutional Law Bankruptcy Law Criminal Procedure Separation of Powers Prosecution Authorization Statutory Interpretation Section 134 Bankruptcy Ordinance Section 138 Bankruptcy Ordinance

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Parties

LAU KIT FUNG

Debtor

The Official Receiver

Applicant

Hon Lam J

Judge

Procedural Posture

Bankruptcy / Ex Parte Application for Prosecution Under Section 134(1) of the Bankruptcy Ordinance

Legal Issues

  1. 1 Whether Section 134(2) requires a court order before a prosecution may be instituted under Section 134(1)
  2. 2 Whether Section 134(2) conflicts with Section 138 of the Bankruptcy Ordinance and, if so, which provision prevails
  3. 3 Whether Section 134(2) is constitutionally valid in light of the separation of powers under the Basic Law (Articles 63, 80, 85)

Ratio Decidendi

Even if Section 134(2) should be interpreted to prevail over Section 138 as the specific provision, Section 134(2) is void for being inconsistent with the separation of powers under Articles 63, 80 and 85 of the Basic Law; consequently the application for an order to prosecute was dismissed.

Court Disposition

Application dismissed

Orders

  • Application by the Official Receiver dismissed