Directors of Hong Kong companies operate in an environment of personal liability – a liability that is brought into sharp focus where companies face financial difficulties or even insolvency. This liability may take not only the form of criminal or civil liability but also the form of a director disqualification order, meaning an order to bar that director from being involved in the management of a company in the future.
对董事们而言，公司清盘可能是其以往不法行为报应不爽的审判日。如果无力偿债山雨欲来，有一些事项董事们应牢记在心，以免在无力偿债境况已不可避免时承担个人责任。
不公平优先权
有关不公平优先权的规定，可参见《公司（清盘及杂项条文）条例》第 266、266A 和 266B 条（第32章）(简称“条例)。下列情况均构成公司对某人给予不公平优先权：
- 此人为公司的债权人，或者是公司债务或负债的保证人或担保人；
- 因为诉讼，此人所处境地优于假如公司进行清算的情况；以及
- 公司有意让此人处于更优处境。请注意，如果对公司的合伙人给予不公平优先权，则对此意愿的推定将可以辩驳。
如果 (1) 在清盘即将启动之前的两年内对公司合伙人（如董事、影子董事或公司的其他高管），或是 (2) 在清盘启动之日前的六个月内对与公司无关联者给予不公平优先权，则构成不公平优先权的交易将作废，并可被法院命令搁置，从而将公司恢复到给予该不公平优先权之前的状态。
For directors, the winding up of a company could be judgment day when their past misdeeds come back to haunt them. If insolvency is on the horizon, there are various matters directors should bear in mind lest incurring personal liability if insolvency becomes inevitable.
Unfair Preference
The rules governing unfair preference are found under sections 266, 266A, and 266B of the Companies (Winding-Up and Miscellaneous Provisions Ordinance (Cap. 32) (the “Ordinance”). A company would be deemed to have given unfair preference to a person if:-
Introduction
Background
Another Hong Kong court decision has questioned whether the judgment in the leading case of Lasmos Limited v. Southwest Pacific Bauxite (HK) Limited [2018] HKCFI 426, may have gone too far when it suggested that an arbitration clause in an agreement should generally take precedence over a creditor's right to present a winding-up petition.
Land and buildings Ships and aircraft Other tangible assets Liens Retention of title Intangible assets Personal security Debentures Form of debentures Assets covered by debentures Trust receipts or letters of hypothecation
Receivership
Appointment of a receiver Receivers' powers Receivers' obligations Termination of the receivership
Deacons contacts
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Types of security
While every effort has been made to ensure the accuracy of the information contained in this booklet, it is only a summary and should not be relied upon as a substitute for detailed advice in individual cases.
Deacons 2020
Contents
Introduction Corporate insolvency
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Available procedures
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Liquidation
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Members' voluntary liquidation
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Creditors' voluntary liquidation
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Compulsory liquidation
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Which procedure?
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Receivership
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Scheme of arrangement3
During the COVID-19 crisis, many companies are facing unexpected financial distress, and taking steps to stabilise their business and bolster their finances.
Many directors will not have experienced these issues before, and should be aware of how their duties are impacted when the company is in financial distress.
This guide has been prepared on the basis of Hong Kong law principles. Many of the principles will also be applicable to other common law jurisdictions.
How are companies responding to the current crisis?
Directors of Hong Kong companies under cashflow pressure or financial distress should be aware that as their companies approach insolvency, their duties are increasingly owed to the creditors of their companies rather than to the shareholders of their companies. Pressure from suppliers and other creditors to make payments can place directors in a difficult position of incurring personal liability.