Bankruptcy Ordinance (Cap. 30), section 137(1)(r) – Bankrupt continuing to trade after knowing himself to be insolvent – Distinction between to "trade" and to carry on business – Construction of statutes – Bankruptcy Ordinance, section 17(8) – Bankruptcy Rules 55 and 317 – Civil Procedure Ordinance, section 3 – Civil Procedure Rules, Order XVII, rule 5 – Admissibility of Note of a private examination, and of the Public Examination in Bankruptcy, of debtor in subsequent criminal proceeding – Section 141 proviso – Sentence of fine for bankruptcy offence.
Case summary
The appellant, who was engaged in the business of a transporter, appealed against convictions of two offences under the Bankruptcy Ordinance (Cap. 30), i.e., continuing to trade after knowing himself to be insolvent contrary to section 137(1 (r), and failing to keep proper books of account contrary to section 141(1).
Held (22nd May 1956):
In construing section 137(1)(r) of the Bankruptcy Ordinance, it is the wrong approach to consult authorities upon the meaning of the word “trade” in other statutes and other contexts without having first made a critical examination of the word in the Bankruptcy Ordinance itself. The first essential is to see what the Bankruptcy Ordinance itself says: “For the best and safest guide to all legislation is afforded by what the legislature itself said.” (Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan and others (1933) A.C. 378 (P.C.)).
A critical examination of the Bankruptcy Ordinance and of numerous authorities on other statutes showed that “trade” and “business” were not synonymous terms: “business” has a more extensive signification than “trade”, and a person who continues to carry on the business of a carrier or transporter does not thereby continue to trade within the meaning of paragraph (r) of section 137(1) of the Bankruptcy Ordinance. Appeal against the first conviction allowed.
(a) Record of a private examination of the appellant by a Bankruptcy Officer, proved to have been signed by the appellant; and (b) typed transcription of the shorth and notes, taken by an Official Shorthand Writer, of the public examination of the appellant, were admissible and rightly admitted in evidence in the criminal proceeding before the Magistrate.
It was for the accused to show that he was entitled to the benefit of the proviso to section 141 of the Bankruptcy Ordinance, and this he had not done.
If, after consideration of all the material circumstances, the Court considers that a fine would be a proper sentence for a bankruptcy offence, the Court has power to inflict a fine. Dictum of Nihill, C.J., in Mohamed Alan s/o Alam Din (23 K.L.R. Pt. I 34), not followed.
Cases referred to: Delany v. Delany 15 L.R. (Ir.) 67; Skinner v. Breach 96 L.J.K.B. 834; Brimelow v. Casson (1924) 1 Ch. 302; National Association of Local Government Officers v. Bolton Corporation (1943) A.C. 166; Harris v. Amery 13 L.T. (n.s.) 504 at pp. 505 and 506; Speak v. Powell (1873) L.R. 9 Exch. 25; Rolls v. Miller 21 Ch. Div. 71, 85; Doe v. Keeling 1 M. & S. 95, 100; M. & F. Frawley Ltd. v. VeriBest Manufacturing Co. (1953) 1 Q.B. 318; R. v. Tuttle 21 Cr. App. Rep. 85; Reg. v. Erdheim (1896) 2 Q.B. 260; Mohamed Hassan v. Reg. Cr. App. 104/55 E.A.C.A.; Kassamali Virji Madhvani v. Regina Cr. App. 25/1956.
