Legal update: Bankrupt’s contact details are not ‘confidential’, ‘private’ or ‘privileged’12Jan2021
A bankrupt’s solicitors can be required to handover to the trustees in bankruptcy the bankrupt contact information, full details of last known whereabouts, and client trust account ledger records, pursuant to section 29 of the Bankruptcy Ordinance.
The successful deployment of the trustees examination powers was seen in the recent decision handed down by The Honourable Justice G Lam in Re Han Catherine (Bankrupt) which confirms that a bankrupt’s contact information and last known whereabouts are reasonably required by trustees in bankruptcy to carry out their functions. Notably, such contact information includes a bankrupt’s instant messaging account details (e.g. WhatsApp / WeChat). The Court affirmed that a bankrupt’s client trust account ledger records should also be provided, as prima facie monies held by solicitors on account of a now bankrupt client forms part of the estate.
Under section 29 of the Bankruptcy Ordinance, the Official Receiver or the trustee can apply to the Court to request the bankrupt provide information or documents. It has long been recognised that the power conferred under this section is general, wide, unlimited and discretionary in nature. However, not all information or documents may be disclosed. The basic thresholds for the applicant to satisfy are:
- The information or documents must “relate to the bankrupt, his dealings or property”, but not whatever information the trustee desires.
- The provision of information or documents is reasonably required for the trustee to carry out his functions.
- The trustee must establish a prima facie case that the respondent is able to provide such information or documents.
The trustee has to satisfy all these requirements to obtain a Court order.
In Re Han Catherine, the Court considered whether the disclosure of information should be rejected on the basis such information was of ‘confidential’, ‘privileged’ (here legal professional privilege) or protected under the Personal Data (Privacy) Ordinance (“PDPO”).
The Court did not explore the meaning of confidentiality, but noted that while the contact details of the bankrupt may be confidential, a mere duty of confidentiality may be overridden by a court order for disclosure.
Further, contact information cannot be regarded as being made in connection with the provision of legal advice so it is not protected by legal professional privilege. The PDPO exempts the prohibition on the use of personal data for a new purpose if such data is (1) required by order of a Hong Kong Court; or (2) to be used in connection with any legal proceedings in Hong Kong.
A copy of the Court’s decision is available here: Yuen Tsz Chun Frank and Chan Hoi Yan Joint and Several Trustees of the Property of Han, Catherine (韓熙庭, Formerly Known As韓文虹), A Bankrupt v Ho Sing Wai (T/A Under the Firm Name AH Lawyers).
Ian De Witt / Troy Greig
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.