2009年5月20日 星期三 15:05
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Extracted from the
LEGAL OPINION BY HERBERT SMITH
December 2008
Posting legal notices on Quamnet.com
Introduction
1.The relevant factual background is that:
1.1 Quamnet.com is registered as a newspaper in Hong Kong with the Television and Entertainment Licensing Authority under the Registration of Local Newspapers Ordinance (Cap 268).
1.2 Quamnet.com has an English language and a Chinese language website. Both of them are called ‘Quamnet.com’.
1.3 Quamnet.com has been approved by the Chief Secretary for Administration as a Chinese newspaper and an English newspaper for the publication of notices pursuant to Section 71A(3)(a) of the Companies Ordinance (Cap 32).
2. Quamnet.com offers its customers the ability to post notices on Quamnet.com under the Companies Ordinance (Cap 32), the Bankruptcy Ordinance (Cap 6), the Companies (Winding up) Rules (Cap32H) and the Bankruptcy Rules (Cap 6A) (together “the Rules and Ordinances”). A table of the relevant sections in the Rules and Ordinances is contained in the attached Schedule.
3. Legal opinions received have confirmed the following legal issues:
3.1 Quamnet.com is a “local newspaper” for the purposes of Sections 131(c) of the Bankruptcy Ordinance, Rules 78, 99A, 101 and 162(1) of the Bankruptcy Rules and Section 360E(2) of the Companies Ordinance;
3.2 Quamnet.com is a “daily newspaper” for the purposes of Rules 24(a) and 74(b) of the Companies (Winding up) Rules;
3.3 Quamnet.com is a newspaper that is “circulating (generally) in Hong Kong” for the purposes of Section 30A(5) of the Bankruptcy Ordinance, Rules 122M(4)(a) and (b) of the Bankruptcy Rules and Sections 99(1), 116C and 241(2) of the Companies Ordinance;
3.4 Posting of a notice on Quamnet.com constitutes an “advertisement” for the purposes of Rules 92(2)(b) and 101 of the Bankruptcy Rules, Sections 99(1), 116C and 241(2) of the Companies Ordinance and Rules 24(a), 74(b) and 93(1) of the Companies (Winding up) Rules;
3.5 Posting of a notice on Quamnet.com meets the requirement of “publishing” a notice for the purposes of Sections 30A(5) and 131(c) of the Bankruptcy Ordinance, Rules 122M(4)(a) and (b) and 162(1) of the Bankruptcy Rules and Sections 49M(2), 71A(3)(a) and 360E(2) of the Companies Ordinance;
3.6 Quamnet.com is an “English language newspaper” and a “Chinese language newspaper”, as the case may be, for the purposes of Sections 30A(5) and 131(c) of the Bankruptcy Ordinance, Rules 122M(4)(a) and (b) of the Bankruptcy Rules and Sections 49M(2), 71A(3)(a),161BA and 360E(2) of the Companies Ordinance;
3.7 A notice posted on Quamnet.com is “in writing” for the purposes of the Bankruptcy Ordinance and Bankruptcy Rules;
3.8 Quamnet.com has an “appropriate level of circulation” for the purpose of Section 116C of the Companies Ordinance;
3.9 Publication of a notice on Quamnet.com meets the requirement of being an “issue” of a newspaper or a series of “issues” of a newspaper of for the purposes of section 131(c) of the Bankruptcy Ordinance and Rules 122M(4)(a) and (b) of the Bankruptcy Rules;
3.10 The posting of a notice on Quamnet.com constitutes “giving public notice” of the date of a Company’s annual general meeting for the purpose of Section 161BA(5) of the Companies Ordinance; and
3.11 The posting of a notice on Quamnet.com meets the requirement for posting a notice under Rule 92(2)(b) of the Bankruptcy Rules.
SCHEDULE
OrdinanceCapHeadingSection and Posting Requirements
Bankruptcy Ordinance 6Discharge from bankruptcy 30A(5):

(5) Not less than 3 months before the end of the relevant period under this section the trustee shall,

(b) publish a notice in English and Chinese, respectively, in a English and a Chinese newspaper circulating in Hong Kong…

Top

Bankruptcy Ordinance 6 Undischarged bankrupt obtaining credit 131(c):

Any undischarged bankruptcy shall in each of the cases following be guilty of an offence – …

(c) if he engages in any trade of business under a name or names other than that or those under which he was adjudicated bankrupt without first publishing, once in the Gazette, and in 3 successive issues of 2 local newspapers one of which shall be Chinese, a notice containing the following particulars…

Top

Bankruptcy Rules 6A Advertisement 78:

Where a bankruptcy order is made the Official Receiver shall forthwith send notice thereof to the Gazette and to such local newspaper or newspapers as he may think fit.

Top

Bankruptcy Rules 6A Certificate of discharge 92(2)(b):

(2) The discharged bankrupt may require the trustee to give notice of the discharge:…

(b) in any newspaper in which the bankruptcy was advertised; or…

Top

Bankruptcy Rules 6A Four days clear notice to be given of meeting 99A:

… by giving not less than 4 clear days’ notice of the date, time and place thereof in the Gazette and in a local newspaper.

Top

Bankruptcy Rules 6A Notice of meeting to appoint trustee 101:

… shall forthwith gazette and advertise the same in one local newspaper if he considers such advertisement desirable…

Top

Bankruptcy Rules 6A Summoning of creditors' meeting 122 M(4)(a) and (b):

(4) In addition to sending notices under paragraph (2), the nominee shall have the notice published in:

(a) one issue of an English language newspaper; and

(b) one issue of a Chinese language newspaper,

circulated in Hong Kong and such publication shall constitute constructive notice to all creditors of the debtor.

Top

Bankruptcy Rules 6A Notice of appointment 162(1):

(1) On his appointment, a trustee shall forthwith arrange for a notice of his appointment to be gazetted and, if he considers it advisable, he shall also arrange for it to be published in a local newspaper.

Top

Companies Ordinance 32 Publicity for proposed payment out of capital 49M(2):

(2) Within the week immediately following the date of the resolution the company shall also either cause a notice to the same effect as that required by subsection (1) to be published once in each of an English language newspaper and a Chinese language newspaper specified in the list issued for the purposes of section 71A …

Top

Companies Ordinance 32 Procedure for replacement of lost certificate 71A (3)(a):

(3) Subject to subsection (4), where an application is made to a company under this section for a new certificate, the company shall, if it intends to issue such certificate under this section, publish a notice in the specified form advertising its intention to do so, as follows –

(a) …the notice shall be published once in, respectively, an English language newspaper and a Chinese language newspaper specified in a list of newspapers issued for the purposes of this section by the Chief Secretary for Administration and published in the Gazette;

Top

Companies Ordinance 32 Power to close register f members and register of debenture holders99(1):

(1) A company may, on giving notice by advertisement in a newspaper circulating generally in Hong Kong, close for any time or times not exceeding in the whole 30 days in each year …

Top

Companies Ordinance 32 Resolutions requiring special notice 116 C:

Where by any provision hereafter contained in this Ordinance special notice is required of a resolution, the resolution shall not be effective unless notice of intention to move it has been given to the company not less than 28 days before the meeting at which it is moved, and the company shall give its members notice of any such resolution at the same time and in the same manner as if it gives notice of the meeting or, if that is not practicable, shall give them notice thereof, either by advertisement in a newspaper having an appropriate circulation or in any other mode allowed by the articles, not less than 21 days before the meeting: …

Top

Companies Ordinance 32 Further provisions relating to loans to officers, etc. of authorized financial institutions 161 BA(5):

(5) A company which is an authorized financial institution shall give public notice of the date of its annual general meeting in, respectively, an English language newspaper and a Chinese language newspaper specified in a list of newspapers issued for the purposes of section 71A by the Chief Secretary for Administration and published in the Gazette.

Top

Companies Ordinance 32 Meeting of creditors 241(2)

(2) The company shall cause notice of the meeting of the creditors to be advertised once in the Gazette and once at least in, respectively, an English language newspaper and a Chinese language newspaper circulating in Hong Kong.

Top

Companies Ordinance 32 Vesting and disposal of property of company struck 360 E(2):

(2) The Official Receiver shall with all due dispatch wind up the affairs of the company, and after realizing the said property and rights shall apply the sum so realized –

Next, in paying the creditors of the company who shall have proved their debts within such time as shall have been limited by him not being less than 1 month from the date of publication of notice thereof in the Gazette and 2 or more local newspapers of which at least 1 shall be a Chinese newspaper, according to their respective rankings and priorities as if the company had been a company being wound up by the court by virtue of a winding up order dated the day of its dissolution under section 360C.

Top

Companies (Winding up) Rules 32H Advertisement of petition 24(a):

Every petition shall be advertised 7 clear days or such longer time as the court may direct before the hearing, as follows –

(a) in the case of a company whose registered office or if there shall be no such office, then whose principal or last known principal place of business is or was situate within Hong Kong once in the Gazette, and once at least in 2 Hong Kong daily newspapers, or such other newspaper as the court directs;

Top

Companies (Winding up) Rules 32H Calls by liquidator 74(b):

The powers and duties of the court in relation to making calls upon contributories conferred by section 214 of the Ordinance shall and may be exercised, in a winding up by the court, by liquidator as an officer of the court subject to the proviso to section 226 of the Ordinance, and to the following regulations:-

(b) …Notice of the intended call and the intended meeting of the committee of inspection shall also be advertised once at least in a Hong Kong daily newspaper…

Top

Companies (Winding up) Rules 32H Notice to creditors to prove93(1):

Subject to the provisions of the Ordinance, and unless otherwise ordered by the court, the liquidator in any winding up may from time to time fix a certain day, which shall be not less than 14 days from the date of the notice, on or before which the creditors of the company are to prove their debts or claims, and to establish any title they may have to priority under section 265 of the Ordinance or to be excluded from the benefit of the distribution made next after that date and from the benefit of any previous distribution or as the case may be from objecting to such distribution, and the liquidator shall give notice in writing of the day so fixed by advertisement in such newspaper as he shall consider convenient…

Top

"This opinion is furnished by us solely for the benefit of Quam Data Services Limited in connection with the posting of legal notices on the websites operated by Quam Limited for the requirements in the relevant sections of the Rules and Ordinances contained in the attached Schedule.  It may not be copied, distributed, circulated, quoted, referred to, relied upon by or otherwise disseminated to any other entity or person at any time other than by us or with our prior written consent. 
No responsibility, duty of care or liability whatsoever (whether in tort, contract or otherwise including, but not limited to, negligence) is or will be accepted by us or any of our members, employees or consultants for any loss or damage arising from any lack of capacity or authority on the part of any person or entity that has engaged with the services of Quam Data Services Limited or otherwise posted any statutory notice on Quamnet.com.  Third parties wishing to post statutory notices on Quamnet.com should satisfy themselves with the legal requirements for the posting of such notices."
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