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 May 1967] L.N. 62 of 1967
(Format changes—E.R. 2 of 2023)
(Amended E.R. 2 of 2023)
This Ordinance may be cited as the Trading with the Enemy Ordinance (words omitted as spent—E.R. 2 of 2014).
[cf. 1939 c. 89 s. 17 U.K.]
In this Ordinance, unless the context otherwise requires—
company (公司) has the same meaning as it has in section 2(1) of the Companies Ordinance (Cap. 622); (Amended 28 of 2012 ss. 912 & 920) controller (控權人) means a person appointed by the Chief Executive as a controller in accordance with the provisions of section 6(2); (Amended 71 of 1999 s. 3; E.R. 2 of 2023) Court (法院、法庭) means the High Court; (Amended 25 of 1998 s. 2) Custodian (保管人) means the Custodian of Enemy Property appointed in accordance with the provisions of section 10; enemy (敵、敵人) means—(a)any State, or Sovereign of any State, at war with the People’s Republic of China;(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 the People’s Republic of China;(e)in respect of any business carried on in enemy territory, any person carrying on that business; or(f)any person who is deemed to be an enemy by order of the Chief Executive under section 3(2), (Amended E.R. 2 of 2023)but does not include any individual by reason only that he is an enemy subject; (Amended 71 of 1999 s. 3) enemy property (敵產) means any property for the time being belonging to or held or managed on behalf of an enemy or an enemy subject; enemy subject (敵人子民) means—(a)an individual who possesses the nationality of a State at war with the People’s Republic of China; or (Amended 80 of 1982 s. 2; 71 of 1999 s. 3)(b)a body of persons constituted or incorporated in, or under the laws of, any such State; enemy territory (敵人領地) means—(a)any area which is under the sovereignty of, or in the occupation of, a Power with whom the People’s Republic of China is at war, not being an area in the occupation of the People’s Republic of China or of a power allied with the People’s Republic of China; or(b)any area to which the provisions of this Ordinance have been applied by order of the Chief Executive under section 3(1) while so applied; (Amended 71 of 1999 s. 3; E.R. 2 of 2023) inspector (督察) means a person authorized by the Chief Executive as an inspector in accordance with the provisions of section 5(1); (Amended 71 of 1999 s. 3; E.R. 2 of 2023) restriction order (限制令) means an order made by the Chief Executive in accordance with the provisions of section 6(1)(a); (Amended 71 of 1999 s. 3; E.R. 2 of 2023) supervisor (監管人) means a person authorized by the Chief Executive as a supervisor in accordance with the provisions of section 5(2); (Amended 71 of 1999 s. 3; E.R. 2 of 2023) winding-up order (清盤令) means an order made by the Chief Executive in accordance with the provisions of section 6(1)(b). (Amended 71 of 1999 s. 3; E.R. 2 of 2023)A certificate under the hand of the Chief Secretary for Administration 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. (Amended L.N. 226 of 1976; L.N. 242 of 1994; L.N. 362 of 1997)
[cf. 1939 c. 89 ss. 2 & 15 U.K.]
The Chief Executive 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.
The Chief Executive 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.
The Chief Executive may declare, by order, that any notes or coins are enemy currency for the purpose of section 9.
Where any area ceases to be enemy territory as defined in section 2, whether by reason of the occupation thereof by the People’s Republic of China or by a Power allied with the People’s Republic of China or by reason of its no longer being in the occupation of a Power with whom the People’s Republic of China is at war, or for any other reason, that area shall, for the purposes of sections 6, 7, 8 and 10 and, save 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 Chief Executive may by order specify, there had been no such cessation.
Any order made by the Chief Executive under this section shall be published in the Gazette.
(Amended 71 of 1999 s. 3)
[cf. 1939 c. 89 ss. 2 & 15 U.K.]
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—
on conviction, on indictment, to a fine at level 6 and to imprisonment for seven years; or
on summary conviction, to a fine at level 3 and to imprisonment for six months, (Amended E.R. 2 of 2023)
and the Court before which he is convicted may order that any goods or money in respect of which the offence has been committed shall be forfeited.
For the purposes of this Ordinance a person shall be deemed to have traded with the enemy if—
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—
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
paid or transmitted any money, negotiable instrument, prescribed instrument within the meaning of section 137B of the Banking Ordinance (Cap. 155) or security for money to or for the benefit of an enemy or to a place in enemy territory; or (Amended 94 of 1993 s. 43)
performed any obligation to, or discharged any obligation of, an enemy, whether the obligation was undertaken before or after the coming into operation* of this Ordinance; or
he has done anything which, under the following provisions 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 Chief Executive; or (Amended 71 of 1999 s. 3) (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.
Any reference to this section to an enemy shall be construed as including a reference to a person acting on behalf of an enemy.
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.
A prosecution for an offence of trading with the enemy shall not be instituted except by, or with the consent of, the Secretary for Justice: (Amended L.N. 362 of 1997) 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.
[cf. 1939 c. 89 s. 1 U.K.]
The Chief Executive, 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. (Amended 71 of 1999 s. 3)
If, on a report made by an inspector in respect of any business, it appears to the Chief Executive that it is expedient, for securing compliance with the provisions of section 4, that the business should be subject to supervision, the Chief Executive may appoint a supervisor to supervise the business, with such powers as the Chief Executive may determine. (Amended 71 of 1999 s. 3)
Any person who, without reasonable cause, fails to produce 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 at level 1 and to imprisonment for six months. (Amended E.R. 2 of 2023)
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—
on conviction, on indictment, to a fine at level 2 and to imprisonment for five years; or
on summary conviction, to a fine at level 1 and to imprisonment for six months. (Amended E.R. 2 of 2023)
[cf. 1939 c. 89 s. 3 U.K.]
Where any business is being carried on in Hong Kong 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 Chief Executive to be associated with enemies, the Chief Executive may, if he thinks it expedient so to do, make—
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
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 Chief Executive, if he thinks it expedient so to do, at any subsequent date to make a winding-up order in respect of that business.
Where an order under subsection (1) is made in respect of any business, the Chief Executive, 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 Chief Executive thinks necessary or convenient for the purpose of giving full effect to the order.
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 Chief Executive may 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.
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—
of the value of those assets;
of the amount of any liabilities of the business to creditors, whether secured or unsecured, who are enemies;
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.
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.
The Chief Executive, 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 Chief Executive 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 Chief Executive on proof that it was obtained by fraud or by suppression or concealment of any material fact.
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.
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 winding-up 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 Chief Executive, 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.
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 Chief Executive, 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.
(Amended 71 of 1999 s. 3)
[cf. 1939 c. 89 s. 3A U.K.]
No assignment of a chose in action made by or on behalf of an enemy shall, except with the sanction of the Chief Executive, 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 or prescribed instrument within the meaning of section 137B of the Banking Ordinance (Cap. 155) by or on behalf of an enemy, or subsequent transfer thereof, shall, except with the sanction of the Chief Executive, be effective so as to confer any rights or remedies against any party to the instrument. (Amended 94 of 1993 s. 44; 71 of 1999 s. 3)
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 or prescribed instrument within the meaning of section 137B of the Banking Ordinance (Cap. 155), as they apply in relation to an assignment of a chose in action. (Amended 94 of 1993 s. 44)
Any person who by payment or otherwise purports to discharge 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 trading 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 reasonable grounds for believing that the liability was enforceable against him by order of a competent court, not being either a court having jurisdiction in Hong Kong or a court having jurisdiction in enemy territory, and would be enforced against him by such an order. (Amended 71 of 1999 s. 3)
Where a claim in respect of a negotiable instrument or prescribed instrument within the meaning of section 137B of the Banking Ordinance (Cap. 155) 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. (Amended 94 of 1993 s. 44)
Nothing in this section shall apply to securities to which the provisions of section 8 apply.
[cf. 1939 c. 89 s. 4 U.K.]
If—
any securities to which this section applies are transferred by or on behalf of an enemy; or
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 Chief Executive,
then, except with the sanction of the Chief Executive, 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 Chief Executive. (Amended 71 of 1999 s. 3)
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.
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 at level 1 and to imprisonment for six months. (Amended E.R. 2 of 2023)
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 Hong Kong. (Amended 71 of 1999 s. 3)
[cf. 1939 c. 89 s. 5 U.K.]
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 Chief Executive under section 3(3) to be enemy currency shall be guilty of an offence of trading with the enemy.
(Amended 71 of 1999 s. 3; E.R. 2 of 2023)
[cf. 1939 c. 89 s. 6 U.K.]
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 Chief Executive may appoint a Custodian of Enemy Property. (Amended 71 of 1999 s. 3)
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.
The Chief Executive may by order—
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;
vest in the Custodian any enemy property;
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;
confer and impose on the Custodian and on any other person such rights, powers, duties and liabilities as may be prescribed as respects—
property which has been, or is required to be, vested in the Custodian by or under the order;
property of which the right of transfer has been, or is required to be, so vested;
any other enemy property which has not been, and is not required to be, so vested; or
money which has been, or is by the order required to be, paid to the Custodian;
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 Chief Executive to be necessary or expedient for the purposes of the order. (Amended 71 of 1999 s. 3)
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.
Where, in pursuance of an order made under this section—
any money is paid to the Custodian;
any property, or the right to transfer any property, is vested in the Custodian; or
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—
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
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.
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 at level 1 and to imprisonment for six months, and the payment or dealing shall be void. (Amended E.R. 2 of 2023)
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.
All fees received by the Custodian by virtue of an order under this section shall be paid into the general revenue of Hong Kong. (Amended 71 of 1999 s. 3)
[cf. 1939 c. 89 s. 7 U.K.]
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 statement which is false in a material particular shall be guilty of an offence and shall be liable on summary conviction to a fine at level 1 and to imprisonment for six months.
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 at level 1.
(Amended E.R. 2 of 2023)
[cf. 1939 c. 89 s. 9 U.K.]
Where any offence 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.
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.
[cf. 1939 c. 89 s. 10 U.K.]
Nothing in this Ordinance shall affect or be deemed to affect the rights of the Central Authorities or the Government of the Hong Kong Special Administrative Region under the Basic Law and other laws, 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.
(Amended 71 of 1999 s. 3)