Cap. 20 - Bills of Sale Ordinance

To consolidate and amend the law for preventing frauds upon creditors by secret bills of sale of personal chattels. [12 July 1886](Format changes—E.R. 5 of 2021) 1. Short title This Ordinance may be cited as the Bills of Sale Ordinance.(Amended 5 of 1924 s. 6) 2. Interpretation In this Ordinance, unless the context otherwise requires— bill of sale (賣據) includes bills of sale, assignments, transfers, declarations of trust without transfer, inventories of goods with receipt thereto attached, or receipts for purchase moneys of goods, and other assurances of personal chattels, and also powers of attorney, authorities, or licences to take possession of personal chattels as security for any debt, and also any agreement, whether intended or not to be followed by the execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, is conferred, but does not include the following documents; that is to say, assignments for the benefit of the creditors of the person making or giving the same, marriage settlements, transfers or assignments of any ship or vessel or any share thereof, transfers of goods in the ordinary course of business of any trade or calling, bills of sale of goods in any place outside Hong Kong or at sea, bills of lading, India warrants, warehouse keepers’ certificates, warrants or orders for the delivery of goods, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented: Provided that— (Amended 23 of 1998 s. 2) (a) (Repealed 55 of 1967 s. 2) (b) an instrument charging or creating any security on or declaring trusts of imported goods given or executed at any time prior to their deposit in a warehouse, godown, factory or store, or to their being re-shipped for export, or delivered to a purchaser not being the person giving or executing such instrument, shall not be deemed a bill of sale, but nothing in this paragraph shall affect the operation of section 43 of the Bankruptcy Ordinance (Cap. 6), in respect of any goods comprised in any such instrument as is hereinbefore described, if such goods would but for this paragraph be goods within the meaning of that section; (Added 22 of 1914 ss. 2 & 3. Amended 5 of 1924 s. 20) [cf. 1890 c. 53 s. 2 U.K.; 1891 c. 35 s. 1 U.K.] personal chattels (非土地實產) means goods, furniture, and other articles capable of complete transfer by delivery, and (when separately assigned or charged) fixtures and growing crops, but does not include fixtures (except trade machinery as hereinafter defined) when assigned together with any interest in any land or building to which they are affixed, or growing crops when assigned together with any interest in the land on which they grow, or shares or interests in the stock, funds, or securities of any government or in the capital or property of incorporated or joint-stock companies, or choses in action, or any stock or produce upon any farm or lands which, by virtue of any covenant or agreement, ought not to be removed from any farm where the same are at the time of making or giving of such bill of sale. Personal chattels shall be deemed to be in the apparent possession of the person making or giving a bill of sale, so long as they remain or are in or upon any house, mill, warehouse, building, works, yard, land, or other premises occupied by him, or are used and enjoyed by him in any place whatsoever, notwithstanding that formal possession thereof may have been taken by or given to any other person;prescribed (訂明) means prescribed by rules made under the provisions of this Ordinance;Registrar (司法常務官) means the Registrar of the High Court. (Amended 50 of 1911; 62 of 1911 Schedule; 25 of 1998 s. 2)(Amended 50 of 1911 s. 4) [cf. 1878 c. 31 s. 4 U.K.] 3. Application of the Ordinance This Ordinance shall apply to every bill of sale (whether the same is absolute or subject or not subject to any trust), whereby the holder or grantee has power, either with or without notice and either immediately or at any future time, to seize or take possession of any personal chattels within Hong Kong comprised in or made subject to such bill of sale.(Amended 51 of 1911; 62 of 1911 Schedule; 33 of 1985 s. 2) [cf. 1878 c. 31 s. 3 U.K.] 4. Application of the Ordinance to trade machinery (1) Trade machinery shall, for the purposes of this Ordinance, be deemed to be personal chattels, and any mode of disposition of trade machinery by the owner thereof which would be a bill of sale as to any other personal chattels shall be deemed to be a bill of sale within the meaning of this Ordinance. (Amended 50 of 1911 s. 4)(2) For the purposes of this Ordinance, trade machinery (營業機器) means the machinery used in or attached to any factory or workshops—(a) exclusive of the fixed motive-powers, such as the water-wheels and steam engines, and the steam-boilers, donkey engines, and other fixed appurtenances of the said motive-powers; and(b) exclusive of the fixed power machinery, such as the shafts, wheels, drums, and their fixed appurtenances, which transmit the action of the motive-powers to the other machinery fixed and loose; and(c) exclusive of the pipes for steam, gas, and water in the factory or workshop.(3) The machinery or effects excluded by this section from the definition of trade machinery shall not be deemed to be personal chattels within the meaning of this Ordinance.(4) For the purposes of this Ordinance, factory (工廠) or workshop (工場) means any premises on which any manual labour is exercised by way of trade, or for purposes of gain, in or incidental to the following purposes or any of them—(a) making any article or part of an article; or(b) altering, repairing, or finishing any article; or(c) adapting for sale any article. (Amended 51 of 1911; 62 of 1911 Schedule; 5 of 1924 Schedule) (Amended 19 of 1911) [cf. 1878 c. 31 s. 5 U.K.] 5. Certain instruments giving power of distress to be subject to the Ordinance Every attornment, instrument, or agreement, not being a mining lease, whereby a power of distress is given or agreed to be given by any person to any other person by way of security for any present, future, or contingent debt or advance, and whereby any rent is reserved or made payable as a mode of providing for the payment of interest on such debt or advance, or otherwise for the purpose of such security only, shall be deemed to be a bill of sale, within the meaning of this Ordinance, of any personal chattels which may be seized or taken under such power of distress:Provided that nothing in this section shall extend to any mortgage of any estate or interest in any land or tenement which the mortgagee, being in possession, has demised to the mortgagor as his tenant at a fair and reasonable rent.[cf. 1878 c. 31 s. 6 U.K.] 6. Fixtures or growing crops not deemed separately assigned when land passes No fixtures or growing crops shall be deemed, under this Ordinance, to be separately assigned or charged by reason only that they are assigned by separate words, or that power is given to sever them from the land or building to which they are affixed, or from the land on which they grow, without otherwise taking possession of or dealing with such land or building, or land, if by the same instrument any leasehold interest in the land or building to which such fixtures are affixed, or in the land on which such crops grow, is also conveyed or assigned to the same person.[cf. 1878 c. 31 s. 7 U.K.] 7. Avoidance of bill of sale unless attested and registered Every bill of sale shall be duly attested and shall be registered within 7 clear days after the execution thereof, or, if it is executed in any place out of Hong Kong, then within 7 clear days after the time at which it would, in the course of post, arrive in Hong Kong if posted immediately after the execution thereof, and shall truly set forth the consideration for which it was given; otherwise such bill of sale shall—(a) in the case of a bill of sale made or given by way of security for the payment of money, be void in respect of the chattels comprised therein; and(b) in the case of any other bill of sale, as against all trustees or assignees of the estate of the person whose chattels, or any of them, are comprised in such bill of sale under the law relating to bankruptcy or liquidation, or under any assignment for the benefit of the creditors of such person, and also as against all bailiffs and other persons seizing any chattels comprised in such bill of sale, in the execution of any process of any court authorizing the seizure of the chattels of the person by whom or of whose chattels such bill has been made, and also as against every person on whose behalf such process shall have been issued, be deemed fraudulent and void so far as regards the property in or right to possession of any chattels comprised in such bill of sale which, at or after the time of filing the petition for bankruptcy or liquidation, or of the execution of such assignment, or of executing such process, as the case may be, and after the expiration of such 7 clear days are in the possession or apparent possession of the person making such bill of sale, or of any person against whom the process has been issued under or in the execution of which such bill has been made or given, as the case may be.(Amended 55 of 1967 s. 3; 33 of 1985 s. 3) [cf. 1882 c. 43 s. 8 U.K.] 8. Avoidance of certain duplicate bills of sale Where a subsequent bill of sale is executed within or on the expiration of 7 days after the execution of a prior unregistered bill of sale, and comprises all or any part of the personal chattels comprised in such prior bill of sale, then, if such subsequent bill of sale is given as a security for the same debt as is secured by the prior bill of sale or for any part of such debt, it shall, to the extent to which it is a security for the same debt or part thereof and so far as respects the personal chattels or part thereof comprised in the prior bill, be absolutely void, unless it is proved, to the satisfaction of the court having cognizance of the case, that the subsequent bill of sale was bona fide given for the purpose of correcting some material error in the prior bill of sale, and not for the purpose of evading this Ordinance.[cf. 1878 c. 31 s. 9 U.K.] 9. Mode of registering bills of sale (1) A bill of sale shall be attested and registered under this Ordinance in the following manner—(a) in the case of—(i) a bill of sale made or given by way of security for the payment of money, the execution of the bill by the grantor shall be witnessed by one or more credible witnesses, not being a party or parties thereto; and(ii) any other bill of sale, the execution of the bill by the grantor shall be witnessed by a solicitor of the High Court if it is executed in Hong Kong or by a person authorized under the law of a place outside Hong Kong to administer oaths if it is executed in any place outside of Hong Kong, and the attestation shall state that before the execution of the bill the effect thereof has been explained to the grantor by the attesting solicitor or authorized person, as the case may be; (Replaced 55 of 1967 s. 4. Amended 25 of 1998 s. 2)(b) the bill, with every schedule or inventory thereto annexed or therein referred to, and also a true copy of the bill, and of every such schedule or inventory, and of every attestation of the execution of the bill, together with an affidavit of the time of the bill being made or given and of its due execution and attestation, and a description of the residence and occupation of the person making or giving the same (or, in case the same is made or given by any person under or in execution of any process, then a description of the residence and occupation of the person against whom such process issued), and of every attesting witness to the bill shall be presented to, and the said copy and affidavit shall be filed with, the Registrar within 7 clear days after the making or giving of the bill; and(c) if the bill is made or given subject to any defeasance, condition, or declaration of trust not contained in the body thereof, such defeasance, condition, or declaration shall be deemed to be part of the bill, and shall be written on the same paper or parchment therewith before the registration, and shall be truly set forth in the copy filed under this Ordinance therewith and as part thereof, otherwise the registration shall be void.(2) In case 2 or more bills of sale are given, comprising in whole or in part any of the same chattels, they shall have priority in the order of the date of their registration respectively as regards such chattels.(3) A transfer or assignment of a registered bill of sale need not be registered.[cf. 1878 c. 31 s. 10 U.K.; 1882 c. 43 s. 10 U.K.] 10. Renewal of registration (1) The registration of a bill of sale must be renewed once at least every 5 years, and if a period of 5 years elapses from the registration or renewed registration of a bill of sale without a renewal or further renewal, as the case may be, the registration shall become void. (Amended 51 of 1911; 62 of 1911 Schedule)(2) The renewal of a registration shall be effected by filing with the Registrar an affidavit stating the date of the bill of sale and of the last registration thereof, and the names, residences, and occupations of the parties thereto as stated therein, and that the bill of sale is still a subsisting security.(3) Every such affidavit may be in Form 1 in the Schedule. (Amended 50 of 1911 s. 4)(4) A renewal of registration shall not become necessary by reason only of a transfer or assignment of a bill of sale.[cf. 1878 c. 31 s. 11 U.K.] 11. Bill of sale to have schedule of property attached Every bill of sale shall have annexed thereto or written thereunder a schedule containing an inventory of the personal chattels comprised in the bill of sale; and such bill of sale, save as hereinafter mentioned, shall have effect only in respect of the personal chattels specifically described in the said schedule, and shall be void, except as against the grantor, in respect of any personal chattels not so specifically described.[cf. 1882 c. 43 s. 4 U.K.] 12. Bill of sale not to affect after acquired property Save as hereinafter mentioned, a bill of sale shall be void, except as against the grantor, in respect of any personal chattels specifically described in the schedule thereto of which the grantor was not the true owner at the time of the execution of the bill of sale.[cf. 1882 c. 43 s. 5 U.K.] 13. Exception as to certain things Nothing hereinbefore contained shall render a bill of sale void in respect of any of the following things—(a) any growing crops separately assigned or charged where such crops were actually growing at the time when the bill of sale was executed; and(b) any fixtures separately assigned or charged and any plant or trade machinery where such fixtures, plant, or trade machinery are or is used in, attached to, or brought upon any land, farm, factory, workshop, shop, house, warehouse, or other place in substitution for any of the like fixtures, plant, or trade machinery specifically described in the schedule to such bill of sale.[cf. 1882 c. 43 s. 6 U.K.] 14. Limitation of causes of seizure Personal chattels assigned under any bill of sale made or given by way of security for the payment of money shall not be liable to be seized or taken possession of by the grantee for any other than the following causes— (Amended 55 of 1967 s. 5)(a) if the grantor makes default in payment of the sum or sums of money thereby secured at the time therein provided for payment or in the performance of any covenant or agreement contained in the bill of sale and necessary for maintaining the security; or(b) if the grantor becomes a bankrupt or suffers the said goods or any of them to be distrained for rent, rates, or taxes; or(c) if the grantor fraudulently either removes or suffers the said goods or any of them to be removed from the premises; or(d) if the grantor does not, without reasonable excuse, upon demand in writing by the grantee, produce to him his last receipts for rent, rates, and taxes; or(e) if execution has been levied against the goods of the grantor under any judgment at law:Provided that the grantor may, within 5 days from the seizure or taking possession of any chattels on account of any of the above-mentioned causes, apply to the court or judge who may, if satisfied that, by payment of money or otherwise, the said cause of seizure no longer exists, restrain the grantee from removing or selling the said chattels or may make such other order as may seem just. (Amended 50 of 1911; 51 of 1911; 62 of 1911 Schedule; 63 of 1911 Schedule)[cf. 1882 c. 43 s. 7 U.K.] 15. Form of bill of sale A bill of sale made or given by way of security for the payment of money by the grantor thereof shall be void unless made in accordance with Form 2 in the Schedule.(Amended 50 of 1911 s. 4) [cf. 1882 c. 43 s. 9 U.K.] 16. Avoidance of bill of sale under $150 Every bill of sale made or given by way of security for the payment of money in consideration of any sum under $150 shall be void.(Amended 55 of 1967 s. 6)[cf. 1882 c. 43 s. 12 U.K.] 17. Rule as to situation and sale of chattels All personal chattels seized or of which possession is taken under or by virtue of any bill of sale shall remain on the premises where they were so seized or so taken possession of, and shall not be removed or sold until after the expiration of 5 clear days from the day they were so seized or so taken possession of.(Amended 50 of 1911; 62 of 1911 Schedule) [cf. 1882 c. 43 s. 13 U.K.] 18. Bill of sale not to protect chattels against rates and taxes A bill of sale to which this Ordinance applies shall be no protection in respect of personal chattels included in such bill of sale which, but for such bill of sale, would have been liable to distress under a warrant or order for the recovery of rates and taxes.[cf. 1882 c. 43 s. 14 U.K.] 19. Form of register (1) The Registrar shall keep a book (in this Ordinance called the register) for the purposes of this Ordinance, and shall, on the filing of any bill of sale or copy under this Ordinance, enter therein, in Form 3 in the Schedule or in any other prescribed form, the name, residence, and occupation of the person by whom the bill was made or given, or, in case the same was made or given by any person under or in the execution of process, then the name, residence, and occupation of the person against whom such process was issued, and also the name of the person to whom or in whose favour the bill was given, and the other particulars shown in the said form or to be prescribed under this Ordinance, and shall number all such bills registered in each year consecutively, according to the respective dates of their registration. (Amended 50 of 1911 s. 4)(2) On the registration of any affidavit of renewal, the like entry shall be made, with the addition of the date and number of the last previous entry relating to the same bill, and the bill of sale or copy originally filed shall be thereupon marked with the number affixed to such affidavit of renewal.(3) The Registrar shall also keep an index of the names of the grantors of registered bills of sale with reference to entries in the register of the bills of sale given by each grantor. (Amended 50 of 1911; 62 of 1911 Schedule)(4) Such index shall be arranged in divisions corresponding with the letters of the alphabet, so that all grantors whose surnames begin with the same letter (and no others) shall be comprised in one division, but the arrangement within each such division need not be alphabetical. (Amended 50 of 1911; 62 of 1911 Schedule)[cf. 1878 c. 31 s. 12 U.K.] 20. Rectification of register A judge on being satisfied that the omission to register a bill of sale or an affidavit of renewal thereof within the time prescribed by this Ordinance, or the omission or mis-statement of the name, residence, or occupation of any person, was accidental or due to inadvertence, may order such omission or mis-statement to be rectified by the insertion in the register of the true name, residence, or occupation, or by extending the time for such registration, on such terms and conditions, if any, as to security, notice by advertisement or otherwise, or as to any other matter, as he thinks fit to direct.(Amended 50 of 1911; 62 of 1911 Schedule) [cf. 1878 c. 31 s. 14 U.K.] 21. Entry of satisfaction Subject to and in accordance with any rules to be made under this Ordinance, the Registrar may order a memorandum of satisfaction to be written upon any registered copy of a bill of sale, on the prescribed evidence being given that the debt, if any, for which such bill of sale was made or given has been satisfied or discharged.(Amended 50 of 1911; 62 of 1911 Schedule) [cf. 1878 c. 31 s. 15 U.K.] 22. Right to have copies (1) Any person shall be entitled to have an office copy or extract of any registered bill of sale and affidavit of execution filed therewith, or copy thereof, and of any affidavit filed therewith, or registered affidavit of renewal, on paying for the same at the like rate as for office copies of judgments of the High Court. (Amended 25 of 1998 s. 2)(2) Any copy of a registered bill of sale, and affidavit purporting to be an office copy thereof, shall, in all courts and before all arbitrators or other persons, be admitted as prima facie evidence thereof and of the fact and date of registration as shown thereon.(3) Any person shall be entitled at all reasonable times to search the register on payment of a fee prescribed in the Bills of Sale (Fees) Regulations (Cap. 20 sub. leg. A), and shall be entitled at all reasonable times to inspect, examine, and make extracts from any and every registered bill of sale made or given by way of security for the payment of money, without being required to make a written application or to specify any particulars in reference thereto, on payment of a fee prescribed in the Bills of Sale (Fees) Regulations (Cap. 20 sub. leg. A): (Amended 33 of 1985 s. 4; E.R. 5 of 2021) Provided that the said extracts shall be limited to the dates of execution, registration, renewal of registration, and satisfaction, to the names, addresses and occupations of the parties, to the amount of the consideration, and to any further particulars prescribed by any rules made under this Ordinance. (Amended 50 of 1911; 62 of 1911 Schedule; 9 of 1950 Schedule; 55 of 1967 s. 7) [cf. 1882 c. 43 s. 16 U.K.][cf. 1878 c. 31 s. 16 U.K.] 23. Fees The Chief Executive in Council may by regulation provide for fees to be taken by the Registrar. (Replaced 9 of 1950 Schedule. Amended 23 of 1999 s. 3) 24. Making of rules Rules for the purposes of this Ordinance may be made by the like persons and in the like manner in which rules may be made under the High Court Ordinance (Cap. 4).(Amended 50 of 1911; 62 of 1911 Schedule; 20 of 1948 s. 4; 25 of 1998 s. 2)[cf. 1878 c. 31 s. 21 U.K.] 25. Time of registration When the time for registering a bill of sale expires on a Sunday or other day on which the offices of the High Court are closed, such registration shall be valid if made on the next following day on which the offices are open.(Amended 25 of 1998 s. 2)[cf. 1878 c. 31 s. 22 U.K.] 26. Exclusion of certain debentures Nothing in this Ordinance shall apply to any debentures issued by any mortgage, loan, or other incorporated company and secured upon the capital, stock, or goods, chattels, and effects of such company.[cf. 1882 c. 43 s. 17 U.K.] Schedule [s. 10]Form 1Affidavit of renewal I, A.B., of , do swear that a bill of sale, bearing date the day of , 19 , and made between [insert names and descriptions of the parties in the original bill of sale] and which said bill of sale [or and a copy of which said bill of sale, as the case may be] was registered on the day of , 19 , is still a subsisting security.Sworn, etc. _ Form 2[s. 15]Bill of sale This Indenture made the day of , 19 , between A.B., of of the one part and C.D., of of the other part, witnesseth that, in consideration of the sum of $ now paid to A.B. by C.D., the receipt of which sum the said A.B. hereby acknowledges [or whatever else the consideration may be], he, the said A.B. doth hereby assign unto C.D., his executors, administrators, and assigns, all and singular the several chattels and things specifically described in the schedule hereto annexed by way of security for the payment of the sum of $ and interest thereon at the rate of per cent per annum [or whatever else may be the rate]. And the said A.B. doth further agree and declare that he will duly pay to the said C.D. the principal sum aforesaid, together with the interest then due, by equal payments of $ on the day of , 19 , [or whatever else may be the stipulated time or times of payment]. And the said A.B. doth also agree with the said C.D. that he will [here insert term as to insurance, payment of rent, or otherwise, which the parties may agree to for the maintenance or defeasance of the security]: Provided always that the chattels hereby assigned shall not be liable to seizure or to be taken possession of by the said C.D. for any cause other than those specified in section 14 of the Bills of Sale Ordinance (Cap. 20).In witness, etc. Signed and sealed by the said A.B. in the presence of me, E.F.[add witness’s name, address, and description].Form 3[s. 19]Register Satis-factionentered Number By whom given (or againstwhom process issued) To whomgiven Nature of instrument Date Date ofregistration Date of registration of affidavit of renewal Name Residence Occupation