TRADING WITH THE ENEMY ORDINANCE

TRADING WITH THE ENEMY ORDINANCE

LAWS OF HONG KONG

TRADING WITH THE ENEMY ORDINANCE

CHAPTER 346





CHAPTER 346.

TRADING WITH THE ENEMY ORDINANCE.

ARRANGEMENT OF SECILIONS.

Section. page
1. Short title and commencement ... ... ... ... ... ... ... ... ... 2
2. Interpretation ... ... ... ... ... ... ... ... ... ... ... ... ... 2
3. Powers of the Governor ... ...

TRADING WITH THE ENEMY AND MATTERS RELATING THERETO

4........................Penalties for trading with the enemy ... ... ... ... ... ... ... 4
5........................inspection and supervision of businesses ... ... ... ... ... ... 5

6...............................Power to control and wind up certain businesses ... ... ... ... 6

7..........................................Transfer of negotiable instruments and choses in action by enemies 8

8........................Transfer and allotment of securities ... ... ... ... ... ... ... 9

9...................Purchase of enemy currency ... ... ... ... ... ... ... ... ... 9

PROPERTY OF ENEMIES AND ENEMY SU~S.

10...................................Collection of enemy debts and custody of enemy property ... ... 10

GENERAL AND SUPPLEMENTARY PROVISIONS.

11.....................False statements and obstruction ... ... ... ... ... ... ... ... 12

12................Offences by corporations ... ... ... ... ... ... ... ... ... ... 12

13. Saving................................. ... ... ... ... ... ... ... ... 12





CHAPTER 346.

WADING WITH THE ENEMY.

To impose penalties for trading with the enemy, to make provision as
respects the property of enemies and enemy subjects, and for
purposes connected with the matters aforesaid.

1. This Ordinance may be cited as the Trading with the Enemy
Ordinance and shall come into operation on a day to be appointed by
the Governor by Proclamation in the Gazette.

2. (1) In this Ordinance, unless the context otherwise requires

'company' has the same meaning as it has in section 2 of the
Companies Ordinance;

'controller' means a person appointed by the Governor as a controller
in accordance with the provisions of subsection (2) of section 6;

'Court' means the Supreme Court;

'Custodian' means the Custodian of Enemy Property appointed in
accordance with the provisions of section 10;

,,enemy' means

(a)any State, or Sovereign of any State, at war with Her Majesty;

(b) any individual resident in enemy territory;

(c)any person carrying on business in any place, if and so long as
the person is controlled by a person who, under this section, is
an enemy;

(d) any body of persons constituted or incorporated in, or
under the laws of. a State at war with Her Majesty;

(e)in respect of any business carried on in enemy territory, any
person carrying on that business; or

any person who is deemed to be an enemy by order of the
Governor under subsection (2) of section 3,

but does not include any individual by reason only that he is an
enemy subject:

,,enemy property' means any property for the time being belonging to
or held or managed on behalf of an enemy or an enemy subject;

* This 'Ordinance is not yet in force.





'enemy subject' means-
(a) an individual who. not being either a British subject or a
British protected person, possesses the nationality of a
State at war with Her Majesty; or

(b)a body of persons constituted or incorporated in, or under the
laws of, any such State.

enemy territory' means

(a)any area which is under the sovereignty of, or in the
occupation of, a Power with whom Her Majesty is at war, not
being an area in the occupation of Her Majesty or of a power
allied with Her Majesty., or

(b)any area to which the provisions of this Ordinance have been
applied by order of the Governor under subsection (1) of
section 3 while so applied;

'inspector' means a person authorized by the Governor as an inspector
in accordance with the provisions of subsection (1) of section 5;

'restriction order' means an order made by the Governor in accordance
with the provisions of paragraph (a) of subsection (1) of section 6;

supervisor means a person authorized by the Governor as a supervisor
in accordance with the provisions of subsection (2) of section 5;

'winding-up order' means an order made by the Governor in
accordance with the provisions of paragraph (b) of subsection (1)
of section 6.

(2) A certificate under the hand of the Colonial Secretary that any
area is or was under the sovereignty of, or in the occupation of any
Power, or as to the time at which any area became or ceased to be under
such sovereignty or in such occupation shall, for the purposes of any
proceedings under or arising out of this Ordinance, be conclusive
evidence of the facts stated in the certificate.

3. (1) The Governor may direct by order that the provisions of this
Ordinance shall apply in relation to any area specified in the order as
they apply to enemy territory and the said provisions shall apply
accordingly.

(2) The Governor may direct by order that any person specified in
the order shall, for the purposes of this Ordinance, be deemed to be,
while so specified, an enemy.

(3) The Governor may declare, by order, that any notes or coins are
enemy currency for the purpose of section 9.

(4) Where any area ceases to be enemy territory as defined in
section 2, whether by reason of the occupation thereof by Her





Majesty or by a Power allied with Her Majesty or by reason of its
no longer being in the occupation of a Power with whom Her
Majesty is at war, or for any other reason, that area shall, for
the purposes of sections 6, 7, 8 and 10 and-,-s-ave as expressly
provided by any such order, for the purposes of any order made
under section 10, be treated as if, until such time as the Governor
may by order specify, there had been no such cessation.

(5) Any order made by the Governor under this section shall
be published in the Gazette.

TRADING WITH THE ENEMY AND MATTERS RELATING THERETO.

4. (1) Any person who trades with the enemy within the
meaning of this Ordinance shall be guilty of an offence of trading
with the enemy and shall be liable-
(a)on conviction, on indictment, to a fine of one hundred
thousand dollars and to imprisonment for seven years; or
(b)on summary conviction, to a fine of ten thousand dollars
and to imprisonment for six months,
and the Court before which he is convicted may order that any
goods or money in respect of which the offence has been com-
mitted shall be forfeited.

(2) For the purposes of this Ordinance a person shall be
deemed to have traded with the enemy if-
(a)he has had any commercial, financial or other intercourse
or dealings with, or for the benefit of, an enemy, and in
particular, but without prejudice, to the generality of the
foregoing provision, if he has-
(i) supplied any goods to or for the benefit of an
enemy, or obtained any goods from an enemy, or traded
in, or carried, any goods consigned to or from an enemy
or destined for or coming from enemy territory; or
(ii) paid or transmitted any money, negotiable instru-
ment or security for money to or for the benefit of an
enemy or to a place in enemy territory; or
(iii) performed any obligation to, or discharged any
obligation of, an enemy, whether the obligation was under-
taken before or after the coming into operation of this
Ordinance, or
(b)he has done anything which, under the following provi-
sions of this Ordinance, is to be treated as trading with
the enemy:

Provided that a person shall not be deemed to have traded
with the enemy by reason only that he has-
(i)done anything under an authority, given generally or
specially by, or by any person authorized in that behalf
by, the Governor; or





(ii)received payment from an enemy of a sum of money due
in respect of a transaction under which all obligations
on the part of the person receiving payment had already
been performed when the payment was received, and
had been performed at a time when the person from
whom the payment was received was not an enemy.

(3) Any reference to this section to an enemy shall be con-
strued as including a reference to a person acting on behalf of an
enemy.

(4) In any proceedings for an offence of trading with the
enemy, the fact that any document has been dispatched addressed
to a person in enemy territory shall. unless the contrary is proved.
be evidence, as against any person who was a party to the
dispatch of the document, that the person to whom the document
was dispatched was an enemy.

(5) A prosecution for an offence of trading with the enemy
shall not be instituted except by, or with the consent of, the
Attorney General:

Provided that this subsection shall not prevent the arrest, or
the issue or execution of a warrant for the arrest, of any person
in respect of such an offence, or the remanding, in custody or on
bail, of any person charged with such an offence, notwithstanding
that the necessary consent to the institution of a prosecution for
the offence has not been obtained.

5. (1) The Governor, if he thinks it expedient for securing
compliance with the provisions of section 4 so to do, may by order
in writing appoint an inspector, for the purpose of this section
and, by such order. authorize the inspector to inspect any books
or documents belonging to, or under the control of, a person
named in the order, and to require that person and any other
person to give such information in his possession with respect to
any business carried on by the named person as the inspector
may demand, and for the purposes aforesaid to enter on any
premises used for the purposes of that business.

(2) If, on a report made by an inspector in respect of any
business, it appears to the Governor that it is expedient, for
securing compliance with the provisions of section 4, that the
business should be subject to supervision, the Governor may
appoint a supervisor to supervise the business, with such powers as
the Governor may determine.

(3) Any person who, without reasonable cause, fails to pro-
duce for inspection, or furnish, to an inspector or a supervisor,
any document or information which he is duly requested by the
inspector or supervisor so to produce or furnish, shall be guilty
of an offence and shall be liable on summary conviction to a fine
of one thousand dollars and to imprisonment for six months.





(4) Any person who, with intent to evade the provisions of
this section, destroys, mutilates or defaces any book or other
document which an inspector or a supervisor is or may be
authorized under this section to inspect, shall be guilty of an
offence and shall be liable-

(a)on conviction, on indictment, to a fine of five thousand
dollars and to imprisonment for five years; or

(b)on summary conviction, to a fine of one thousand dollars
and to imprisonment for six months.

6. (1) Where any business is being carried on in the Colony
by, or on behalf of, or under the direction of, persons all or any
of whom are enemies or enemy subjects or appear to the Governor
to be associated with enemies, the Governor may, if he thinks it
expedient so to do, make-

(a)a restriction order prohibiting the carrying on of the
business either absolutely or except for such purposes
and subject to such conditions as may be specified in the
order; or

(b)a winding-up order requiring the business to be wound
up.

and the making of a restriction order as respects any business
shall not prejudice the power of the Governor, if he thinks it
expedient so to do, at any subsequent date to make a winding-up
order in respect of that business.

(2) Where an order under subsection (1) is made in respect
of any business, the Governor, by that order or by a subsequent
order, may appoint a controller to control and supervise the
carrying out of the order, and, in the case of a winding-up order.
to conduct the winding-up of the business, and may confer on
the controller any such powers in relation to the business as are
exercisable by a liquidator, in the voluntary winding-up of a
company, in relation to the company, including power in the name
of the person carrying on the business or in his own name, and
by deed or otherwise, to convey or transfer any property and power
to apply to the Court to determine any question arising in the
carrying out of the order, and may by the order confer on the
controller such powers as the Governor thinks necessary or con-
venient for the purpose of giving full effect to the order.

(3) Where a restriction order or a winding-up order is made
in respect of any business, the distribution of any assets of the
business which are distributed while the order is in force shall
be subject to the same rules as to preferential payment as are
applicable to the distribution of the assets of a company which is
being wound up, and the said assets of the business shall. so far
as they are available for discharging unsecured debts, be applied
in discharging unsecured debts due to creditors of the business





who are not enemies in priority to unsecured debts due to any other
creditors. and any balance, after providing for the discharge of all
liabilities of the business, shall be distributed among the persons
interested in the business in such manner as the Governor inay direct:

Provided that the provisions of this subsection -shall, in their
application to the distribution of any money or other property which
would, in accordance with those provisions, fall to be paid or
transferred to an enemy, whether as a creditor or otherwise, have effect
subject to the provisions of section 10 and of any order made under
that section.

(4) Where any business in respect of which a controller has been
appointed under this section has assets in enemy territory, the
controller, if in his opinion it is practicable so to do, shall cause an
estimate to be prepared

(a) of the value of those assets;

(b)of the amount of any liabilities of the business to creditors,
whether secured or unsecured, who are enemies.,

(c)of the amount of the claims of persons who are enemies to
participate. otherwise than as creditors of the business, in any
distribution of assets of the business made while an order
under subsection (1) is in force in respect of the business,

and, where such an estimate is made, the said liabilities and claims shall,
for the purposes of this section, be deemed to have been satisfied out
of the said assets of the business,in enemy territory. or to have been
satisfied thereout so far as those assets will go, and only the balance, if
any, shall rank for satisfaction out of the other assets of the business.

(5) Where an estimate has been prepared under subsection (4), a
certificate of the controller as to the value or amount of any Assets,
claims or liabilities to which the estimate relates shall be conclusive for
the purpose of determining the amount of the assets of the business
available for discharging the other liabilities of the business and for
distribution amongst other persons claiming to be interested in the
business:

Provided that nothing in this subsection shall affect the rights of
creditors of, and other persons interested in, the business against the
assets of the business in enemy territory.

(6) The Governor, on an application made by the controller
appointed under this section and after considering the application and
any objections which may be made by any person who appears to him
to be interested, may by order grant to the controller a release, and an
order of the Governor under this subsection shall discharge the
controller from all liability in respect of any act done or default made by
him in the exercise and performance of his powers and duties as
controller:





Provided that any such order may be revoked by the Governor on
proof that it was obtained by fraud or by suppression or concealment of
any material fact.

(7) Any person who contravenes, or fails to comply with, the
provisions of any order made under subsection (1) shall be guilty of an
offence of trading with the enemy.

(8) Where an order under subsection (1) has been made in respect
of a business carried on by an individual or by a company, no
bankruptcy petition or petition for sequestration or summary
sequestration against the individual, or petition for the windingup of the
company, shall be presented, or resolution for the winding-up of the
company passed, or steps for the enforcement of the rights of any
creditors of the individual or of the company shall be taken without the
consent of the Governor, but where the business is carried on by a
company the controller may present a petition for the winding-up of the
company by the Court, and the making of an order under this section
shall be a ground on which the company may be wound up by the Court.

(9) Where an order is made under this section appointing a
controller for any business, any remuneration of, and any costs, charges
and expenses incurred by, the controller, and any other costs, charges
and expenses incurred in connexion with the control and supervision of
the carrying out of the order. to such amount as may be certified by the
Governor, shall be defrayed out of the assets of the business. and, as
from the date of the certificate, shall be charged on those assets in
priority to any other charges thereon.

7. (1) No assignment of a chose in action made by or on behalf of an
enemy shall, except with the sanction of the Governor, be effective so as
to confer on any person any rights or remedies in respect of the chose in
action, and no transfer of a negotiable instrument by or on behalf of an
enemy, or subsequent transfer thereof, shall, except with the sanction of
the Governor, be effective so as to confer any rights or remedies against
any party to the instrument.

(2) The provisions of subsection (1) shall apply in relation to any
transfer of any coupon or other security transferable by delivery, not
being a negotiable instrument, as they apply in relation to an assignment
of a chose in action.

(3) Any person who by payment or otherwise purports to discharge
a any liability from which he is relieved by this section, knowing the
facts by virtue of which he is so relieved, shall be deemed to have
thereby traded with the enemy:

Provided that in any proceedings for an offence of rading with the
enemy which are taken by virtue of this subsection it shall be a
defence for the defendant to prove that at the time when he purported to
discharge the liability in question he had reason





able grounds for believing that the liability was enforceable against him
by order of a competent court, not being either a court having
jurisdiction in the Colony or a court having jurisdiction in enemy
territory, and would be enforced against him by such an order.

(4) Where a claim in respect of a negotiable instrument or chose in
action is made against any person who has reasonable cause to believe
that. if he satisfied the claim, he would be thereby committing an offence
of trading with the enemy, that person may pay into the Court any sum
which, but for the provisions of subsection (1), would be due in respect
of the claim, and thereupon that sum shall, subject to rules of court, be
dealt with according to any order of the Court, and the payment shall for
all purposes be a good discharge to that person.

(5) Nothing in this section shall apply to securities to which the
provisions of section 8 apply.

8. (1) if-

(a)any securities to which this section applies are transferred by
or on behalf of an enemy; or

(b)any such securities, being securities issued by a company,
are allotted or transferred to, or for the benefit of, an enemy
subject without the consent of the Governor,

then, except with the sanction of the Governor, the transferee or allottee
shall not, by virtue of the transfer or allotment, have any rights or
remedies in respect of the securities, and no company by whom the
securities were issued or are managed shall take any cognisance of, or
otherwise act upon, any such transfer except under the authority of the
Governor.

(2) No share warrants, stock certificates or bonds, being warrants,
certificates or bonds payable to bearer, shall be issued in respect of any
securities to which this section applies, being securities registered or
inscribed in the name of an enemy or of a person acting on behalf of, or
for the benefit of, an enemy.

(3) Any person who contravenes the provisions of this section
shall be guilty of an offence and shall be liable on summary conviction
to a fine of two thousand dollars and to imprisonment for six months..

(4) This section applies to annuities, stock, shares, bonds,
debentures or debenture stock registered or inscribed in any register,
branch register or other book kept in the Colony.

9. Any person who purchases any notes or coins which circulate in
any enemy territory or any other notes or coins which are for the time
being declared by an order of the Governor under subsection (3) of
section 3 to be enemy currency shall be guilty of an offence of trading
with the enemy.





PROPERTY OF ENEMIES AND ENEMY
SUBJECTS.

10. (1) With a view to preventing the payment of money to enemies
and of preserving enemy property in contemplation of arrangements to
be made at the conclusion of peace, the Governor may appoint a
Custodian of Enemy Property.

(2) The person for the time being holding the office of Custodian of
Enemy Property shall be a corporation sole under that name, and by that
name shall have perpetual succession with capacity to acquire, whether
as purchaser, mortgagee or otherwise, and hold in that name lands,
Government securities, shares in any public company, debentures,
stocks, funds, securities for money and real and personal property of
every description, to sue and be sued, to grant, sell, convey, assign,
surrender, exchange, partition, yield up, mortgage, demise, reconvey,
reassign, transfer or otherwise deal with and dispose of any property of
any nature whatsoever, to execute deeds, using an official seal, to enter
into engagements binding on himself and his successors in office and to
do all other acts necessary or expedient to be done in the execution of
the duties of his office.

(3) The Governor may by order-

(a)require the payment to the Custodian of money which would,
but for the existence of a state of war, be payable to or for the
benefit of a person who is an enemy, or which would, but for
the provisions of section 7 or 8, be payable to any other
person.,

(b) vest in the Custodian any enemy property;

(c)vest in the Custodian the right to transfer any enemy property
which has not been, and is not required by the order to be,
vested in the Custodian.,

(d)confer and impose on the Custodian and on any other person
such rights, powers, duties and liabilities as may be prescribed
as respects

(i) property Which has been, or is required to be, vested in
the Custodian by or under the order;

(ii) property of which the right of transfer has been, or is
required to be, so vested,

(iii) any other enemy property which has not been, and is
not required to be, so vested; or

(iv) money which has been, or is by the order required to
be, paid to the Custodian;

(e)require the payment of such fees as may be prescribed in the
order to the Custodian in respect of such matters as may be
prescribed and regulate the collection of and accounting for
such fees;

require any person to furnish to the Custodian such returns,
accounts and other information and to produce





such documents, as the Custodian considers necessary for
the discharge of his functions under the order,

and any such order may contain such incidental and supplementary
provisions as appears to the Governor to be necessary or expedient for
the purposes of the order.

(4) Where any requirement or direction with respect to any money
or property is addressed to any person by the Custodian and
accompanied by a certificate of the Custodian that the money or
property is money or property to which an order under this section
applies, the certificate shall be evidence of the facts stated therein, and
if that person complies with the requirement or direction. he shall not be
liable to any action or other legal proceeding by reason only of such
compliance.

(5) Where, in pursuanceof an order made under this
section-

(a) any money is paid to the Custodian;

(b)any property, or the right to transfer any property, is vested in
the Custodian; or

(c)a direction is given to any person by the Custodian in relation
to any property which appears to the Custodian to be
property to which the order applies,

neither the payment, vesting or direction nor any proceedings in
consequence thereof shall be invalidated or affected by reason only
that at a material time

(i)some person who was or might have been interested in the
money or property, and who was an enemy or an enemy
subject, had died or had ceased to be an enemy or an enemy
subject; or

(ii)some person who was so interested. and who was believed by
the Custodian to be an enemy or an enemy subject, was not
an enemy or an enemy subject.

(6) If any person pays any debt, or deals with any property to
which any order under this section applies. otherwise than in
accordance with the provisions of the order or in accordance with the
provisions of an order made under section 6, he shall be guilty of an
offence and shall be liable on summary conviction to a fine of two
thousand dollars and to imprisonment for six months, and the payment
or dealing shall be void.

(7) If any person, without reasonable cause, fails to produce or
furnish, in accordance with the requirements of an order under this
section, any document or information which he is required under the
order to produce or furnish, he shall be liable on summary conviction to
a fine of two hundred dollars for every day on which the default
continues.





(8) All fees received by the Custodian by virtue of an order under
this section shall be paid into the general revenue of the Colony.

GENERAL AND SUPPLEMENTARY
PROVISIONS.

11. (1) Any person who, for the purpose of obtaining any authority
or sanction under this Ordinance, or in giving any information for the
purposes of this Ordinance or of any order made thereunder, knowingly
or recklessly makes a statementwhich is false in a material particular shall
be guilty of an offence and shall be liable on summary conviction to a
fine of two thousand dollars and to imprisonment for six months.

. (2 ) Any person who wilfully obstructs any other person in the
exercise of any powers conferred on him by or under this Ordinance
shall be guilty of an offence and shall be liable on summary conviction
to a fine of one thousand dollars.

12. (1) Where any ofrence under this Ordinance, committed by a
body corporate. is proved to have been committed with the consent or
connivance of, or to have been attributable to any neglect on the part of
any director, manager, secretary or other officer of the body corporate,
he, as well as the body corporate, shall be deemed to be guilty of that
offence, and shall be liable to be proceeded against and punished
accordingly.

(2) For the purposes of this Ordinance, a person shall be deemed to
be a director of a body corporate if he occupies in relation thereto the
position of a director, by whatever name called; and, for the purposes of
the provisions of this Ordinance relating to offences by bodies
corporate, a person shall be deemed to be a director of a body corporate
if he is a person in accordance with whose directions or instructions the
directors of that body act:

Provided that a person shall not, by reason only that the directors
of a body corporate act on advice given by him in a' professional
capacity, be taken to be a person in accordance with whose directions or
instructions those directors act.

13. Nothing in this Ordinance shall affect or be deemed to affect the
rights of Her Majesty the Queen, Her Heirs or Successors. or the rights
of any body politic or corporate or of. any other persons except such as
are mentioned in this Ordinance and those claiming by, from or under
them.
Originally 13 of 1957. Short title and commencement. [cf. 2 & 3 Geo. 6 c. 89, s. 17.] Interpretation. [cf. 2 & 3 Geo. 6 c. 89, ss. 2 and 15.] (Cap. 32.) Powers of the Governor. [cf. 2 & 3 Geo. 6 c. 89, ss. 2 and 15.] Penalties for trading with the enemy. [cf. 2 & 3 Geo. 6 c. 89, s. 1.] Inspection and supervision of businesses. [cf. 2 & 3 Geo. 6 c. 89, s. 3.] Power to control and wind up certain businesses. [cf. 2 & 3 Geo. 6 c. 89, s. 3A.] Transfer of negotiable instruments and choses in action by enemies. [cf. 2 & 3 Geo. 6 c. 89, s . 4.] Transfer and allotment of securities. [cf. 2 & 3 Geo. 6 c. 89, s . 5.] Purchase of enemy currency. [cf. 2 & 3 Geo. 6 c. 89, s . 6.] Collection of enemy debts and custody of enemy property. [cf. 2 & 3 Geo. 6 c. 89, s. 7.] False statements and obstruction. [cf. 2 & 3 Geo. 6 c. 89, s. 9.] Offences by corporations. [cf. 2 & 3 Geo. 6 c. 89, s. 10] Saving.

Originally 13 of 1957. Short title and commencement. [cf. 2 & 3 Geo. 6 c. 89, s. 17.] Interpretation. [cf. 2 & 3 Geo. 6 c. 89, ss. 2 and 15.] (Cap. 32.) Powers of the Governor. [cf. 2 & 3 Geo. 6 c. 89, ss. 2 and 15.] Penalties for trading with the enemy. [cf. 2 & 3 Geo. 6 c. 89, s. 1.] Inspection and supervision of businesses. [cf. 2 & 3 Geo. 6 c. 89, s. 3.] Power to control and wind up certain businesses. [cf. 2 & 3 Geo. 6 c. 89, s. 3A.] Transfer of negotiable instruments and choses in action by enemies. [cf. 2 & 3 Geo. 6 c. 89, s . 4.] Transfer and allotment of securities. [cf. 2 & 3 Geo. 6 c. 89, s . 5.] Purchase of enemy currency. [cf. 2 & 3 Geo. 6 c. 89, s . 6.] Collection of enemy debts and custody of enemy property. [cf. 2 & 3 Geo. 6 c. 89, s. 7.] False statements and obstruction. [cf. 2 & 3 Geo. 6 c. 89, s. 9.] Offences by corporations. [cf. 2 & 3 Geo. 6 c. 89, s. 10] Saving.

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