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BANKING ORDINANCE

BANKING ORDINANCE (4) Where- (a) the person referred to in subsection (1) (a) is a subsidiary or holding company of an authorized institution or a subsidiary of such holding company; (b) the holding company referred to in subsection (1) (b) (i) is an authorized institution or a holding company of an authorized institution; or (c) the holding company referred to in subsection (1) (c) is a holding company of an authorized institution, the Monetary Authority may, by notice in writing to the institution, and subject to such conditions as he may think proper to attach thereto in any particular case, specify that subsection (1) (a), (b) (i) or (c), as the case may be, shall not apply for the purpose of determining the financial exposure of that institution and, accordingly, subsection (1) (a), (b) (i) or (c), as the case may be, shall not apply.

(5) Where- (a) an authorized institution is financially exposed to a trustee in respect of 2 or more trusts; and (b) any person, company or combination thereof referred to in subsection (1) (a), (b), (c) or (d) is that trustee, the Monetary Authority may, by notice in writing to the institution, and subject to such conditions as he may think proper to attach thereto in any particular case, specify that the financial exposure of that institution to that person, company or combination thereof, as the case may be, may exceed an amount equivalent to 25% of the capital base of the institution by an amount not more than the amount specified in that notice and, accordingly, such financial exposure of that institution may exceed the first-mentioned amount by an amount not more than the amount specified in that notice.

(6) For the purposes of this section, the financial exposure of an authorized institution shall not include- (a) any financial exposure to other authorized institutions; (b) any financial exposure to the extent to which it is- (i) secured by- (A) a cash deposit; (B) a guarantee; (C) another undertaking which, in the opinion of the Monetary Authority, is similar to a guarantee; or (D) securities issued, or guaranteed, by the central government or the central bank of any Tier 1 country within the meaning of the Third Schedule; or (Added 67 of 1992 s. 6) (ii) covered by a letter of comfort, where such cash deposit, guarantee, other undertaking, securities or letter of comfort, as the case may be, is accepted by the Monetary Authority, and subject to such conditions as he may think proper to attach thereto, either generally or in any particular case; (Amended 67 of 1992 s. 6) (c) any financial exposure acquired by the purchase of bills of exchange or documents of title to goods where the holder of such bills or documents is entitled to payment outside Hong Kong for goods exported from Hong Kong; (d) any advances, loans and credit facilities made against any bills or documents referred to in paragraph (c); (e) any financial exposure to the Government; (f) any financial exposure to any other government, except a government which is, in the opinion of the Monetary Authority, one that should not be accepted for the purposes of this section; (g) any financial exposure to a bank incorporated outside Hong Kong which is not licensed under this Ordinance where any such bank is, in the opinion of the Monetary Authority, adequately supervised by a banking supervisory authority in its place of incorporation; (h) any share capital or debt securities held as security for facilities granted by the institution or, subject to subsection (7), acquired by it in the course of the satisfaction of debts due to it; (i) any financial exposure acquired under an underwriting or subunderwriting contract- (ii) where such financial exposure would, but for this subsection, be financial exposure under subsection (2) (b); (iii) for a period not exceeding 7 working days, or such further period as the Monetary Authority approves in writing, and subject to such conditions as he may think proper to attach thereto in any particular case; (j) any financial exposure acquired under an underwriting or subunderwriting contract where such financial exposure would, but for this subsection, be financial exposure under subsection (2) (c); (k) any indemnity given by the institution to a person to protect that person against any damages which may be incurred by the person as a result of the person registering a transfer of shares where- (i) the instrument by means of which the transfer has been effected, or purports to have been effected, has been provided, or purports to have been provided, by a subsidiary of the institution; (ii) the authenticating signature on the instrument has been imprinted on it by a machine used by the subsidiary to imprint that signature on such instruments; and (iii) that signature was unlawfully so imprinted on that instrument, or any financial guarantee given by the institution to that person in respect of any like indemnity given by that subsidiary to that person; (Amended 67 of 1992 s. 6) (l) any financial exposure to the extent to which it has been written off, or to which specific provision has been made for it, in the books of the institution. (Added 67 of 1992 s. 6) (7) All share capital and debt securities acquired by an authorized institution in the course of the satisfaction of debts due to it shall be disposed of at the earliest suitable opportunity, and in any event not later than 18 months after the acquisition thereof, or within such further period as the Monetary Authority approves in writing, and subject to such conditions as he may think proper to attach there to, in any particular case.

(8) For the purposes of this section- (a) the expression "person" includes any partnership, any public body and any body of persons, corporate or unincorporate; (b) the expression "debt securities" shall mean debt securities as defined in paragraph 1 of the Third Schedule; (c) advances, loans, credit facilities, guarantees or liabilities shall be deemed to be granted to and to be outstanding in relation to any person liable or contingently liable thereon whether as principal debtor, guarantor, or otherwise: Provided that the reference in this paragraph to a guarantor shall not include a person (not being an authorized institution) who guarantees the obligations of another under- (i) a hire purchase agreement, that is to say an agreement for the bailment of goods under which the bailee may buy the goods, or under which the property in the goods will or may pass to the bailee; or (ii) a conditional sale agreement, that is to say an agreement for the sale of goods under which the purchase price or part of it is payable by instalments. and the property in the goods is to remain in the seller (notwithstanding that the buyer is to be in possession of the goods) until such conditions as to payment of instalments or otherwise as may be specified in the agreement are fulfilled; and (d) a partnership of which an authorized institution is a member shall be deemed to be a subsidiary of that institution.

(9) Every director and every manager of an authorized institution which contravenes subsection (1) commits an offence and is liable- (a) on conviction upon indictment to a fine of $ 200,000 and to imprisonment for 2 years and, in the case of a continuing offence, to a further fine of $ 10,000 for every day during which the offence continues; or (b) on summary conviction to a fine of $ 50,000 and to imprisonment for 6 months and, in the case of a continuing offence, to a further fine of $ 5,000 for every day during which the offence continues.

(Replaced 95 of 1991 s. 27. Amended 82 of 1992 s. 25) 82. Monetary Authority may publish guidelines on business practices of authorized institutions (1) Without prejudice to section 7 (3) or to the other provisions of this Part, the Monetary Authority may, after consultation with the Financial Secretary, by notice in the Gazette from time to time publish for the guidance of authorized institutions, guidelines, not inconsistent with this Ordinance, specifying business practices which should not be engaged in by authorized institutions because, in his opinion, such business practices will or may cause the soundness of the financial position of authorized institutions to be dependent upon the soundness of the financial position of a single party. (Amended 82 of 1992 s. 25) (2) For the purposes of subsection (1), guidelines given in a notice under that subsection- (a) may be expressed to apply to all authorized institutions or to a class of authorized institutions specified in the notice; and (b) may specify what constitutes a single party for the purposes of any such guidelines and, without prejudice to the generality of that power, any class or description of persons or business may constitute such a single party.

(3) Where an authorized institution engages in business practices specified in a notice under subsection (1), the Governor in Council, the Financial Secretary or the Monetary Authority, as the case may be, may, where he is of the opinion that the case is of sufficient importance to justify him so doing, exercise any of his powers under Part V, VI or X in respect of the institution. (Amended 82 of 1992 s. 25) 83. Limitation on advances to directors, etc. of bank (1) Subject to subsection (4A), an authorized institution incorporated in Hong Kong shall not provide any facility specified in subsection (3) to or on behalf of any person or body specified in subsection (4) if the aggregate amount of such facilities for the time being provided by the institution to or on behalf of any one or more such persons or bodies would thereby exceed 10% of the capital base of the institution. (Replaced 95 of 1991 s. 28) (2) Subject to subsections (1) and (4A), an authorized institution incorporated in Hong Kong shall not provide any facility specified in subsection (3) to or on behalf of any person, being an individual, specified in subsection (4) (a), (b), (c), (d), (e) or (f) if the aggregate amount of such facilities for the time being provided by the institution to or on behalf of- (a) one or more such persons, would thereby exceed 5% of the capital base of the institution; (b) that person, would thereby exceed $ 1,000,000. (Replaced 95 of 1991 s. 28) (3) Subject to subsection (3A), for the purposes of subsections (1) and (2), the following facilities are specified- (Amended 67 of 1992 s. 7) (a) the granting, or permitting to be outstanding, of unsecured advances, unsecured loans or unsecured credit facilities including unsecured letters of credit; (Amended 95 of 1991 s. 28) (b) the giving of unsecured financial guarantees; and (c) the incurring of any other unsecured liability.

(3A) Subsection (3) shall not include any facility to the extent to which it has been written off, or to which specific provision has been made for it, in the books of the authorized institution concerned. (Added 67 of 1992 s. 7) (4) For the purposes of subsections (1) and (2), the following persons and bodies are specified (a) any director of the institution; (b) any relative of any such director; (c) any employee of the institution who is responsible, either individually or as a member of a committee, for determining loan applications; (d) any relative of any such employee; (e) any controller (other than an authorized institution, or a bank incorporated outside Hong Kong which is not licensed under this Ordinance but is approved by the Monetary Authority for the purposes of this paragraph) of the institution; (Replaced 64 of 1987 s. 21. Amended 82 of 1992 s. 25) (f) any relative of an individual who is a controller of the institution; (Amended 67 of 1992 s. 7) (g) any firm, partnership or non-listed company (other than a firm, partnership or non-listed company which is an authorized institution, or a bank incorporated outside Hong Kong which is not licensed under this Ordinance but is approved by the Monetary Authority for the purposes of this paragraph) in which the institution or any of its controllers or directors or any relative of any of its controllers or directors is interested as director, partner, manager or agent; and (Amended 82 of 1992 s. 25) (h) any individual, firm, partnership or non-listed company of which any controller or director of the institution or any relative of any such controller or director is a guarantor. (Amended 95 of 1991 s. 28) (4A) The Monetary Authority may, by notice in writing to an authorized institution, and subject to such conditions as he may think proper to attach thereto in any particular case, permit the institution to grant, without complying with subsection (1) or (2), any facility specified in subsection (3) (or such of those facilities as he specifies in the notice) to or on behalf of any person or body specified in subsection (4) (or such of those persons or bodies as he specifies in the notice); and where the institution, in pursuance of such notice and in accordance with such conditions, grants any such facility to or on behalf of any such person or body it shall not thereby contravene subsection (1) or (2). (Added 64 of 1987 s. 21. Amended 3 of 1990 s. 34; 95 of 1991 s. 28; 82 of 1992 s. 25) (5) The provisions of this section shall apply to a facility granted to or on behalf of a person or body jointly with another person or body as they apply to a facility granted to or one behalf of a person or body severally.

(6) For the purposes of subsections (2) and (4), a facility granted to or on behalf of any firm, partnership or non-listed company which a person specified in subsection (4) (a), (b), (c), (d), (e) or (f) is able to control, shall be deemed to be granted to that person or on his behalf.

(7) Every director and every manager of an authorized institution which contravenes subsection (1) or (2) commits an offence and is liable- (Amended 95 of 1991 s. 28) (a) on conviction upon indictment to a fine of $ 200,000 and to imprisonment for 2 years and, in the case of a continuing offence, to a further fine of $ 10,000 for every day during which the offence continues; or (b) on summary conviction to a fine of $ 50,000 and to imprisonment for 6 months and, in the case of a continuing offence, to a further fine of $ 5,000 for every day during which the offence continues.

84. (Repealed 95 of 1991 s. 29) 85. Limitation on advances to employees (1) An authorized institution shall not provide to any one of its employees any facility specified in subsection (2) to an aggregate amount of such facilities in excess of one year's salary for the employee.

(Amended 95 of 1991 s. 30) (2) For the purposes of subsection (1) the following facilities are specified- (a) the granting, or permitting to be outstanding, of unsecured advances, unsecured loans or unsecured credit facilities including unsecured letters of credit; (Amended 95 of 1991 s. 30) (b) the giving of unsecured financial guarantees; and (c) the incurring of any other unsecured liability.

(3) Every director and every manager of an authorized institution which contravenes this section commits an offence and is liable- (a) on conviction upon indictment to a fine of $ 100,000 and to imprisonment for 12 months; or (b) on summary conviction to a fine of $ 50,000 and to imprisonment for 6 months, and, in the case of a continuing offence, to a further fine of $ 5,000 for every day during which the offence continues.

86. Powers of Monetary Authority where moneys placed with foreign bank (1) Where the Monetary Authority- (a) has reason to believe that an authorized institution has granted to any foreign bank any advances, loans (whether by way of deposit or otherwise) or credit facilities; and (b) is of the opinion that the extent or manner in which such advances, loans or credit facilities have been made is not in the interests or the depositors of the authorized institution, he may, by notice in writing to the institution, exercise his powers under this section.

(2) A notice under this section may- (a) prohibit the authorized institution from granting, after the date of the service of the notice, any advances, loans or credit facilities to the foreign bank specified in the notice and any other foreign bank so specified which the Monetary Authority has reason to believe is associated with the first-mentioned foreign bank; (b) where any moneys are held at call, demand or notice by the authorized institution with any bank specified by the Monetary Authority in pursuance of his powers under paragraph (a), direct the institution forthwith to demand repayment of such moneys in accordance with the terms upon which they are held; (c) prohibit the authorized institution from permitting to be outstanding with any bank specified by the Monetary Authority in pursuance of his powers under paragraph (a)- (i) any moneys which should have been repaid to the institution by virtue of a direction under paragraph (b); (ii) any advances, loans or credit facilities repayable or terminable upon the elapse of any time or the occurrence of any event, after the elapse of such time or the occurrence of such event.

(3) A requirement under subsection (2) (a) shall not prohibit the grant of any advance or loan after the date of service of the notice in pursuance of any agreement entered into prior to such date unless the Monetary Authority otherwise directs; but it shall be the duty of the authorized institution to notify the Monetary Authority of any relevant agreement within 7 days of the receipt by it of a notice under this section.

(4) In this section- "foreign bank" means- (a) any bank incorporated outside Hong Kong which is not licensed under this Ordinance; (b) any undertaking of an authorized institution, including that of the institution to which notice is given under this section, which is situated outside Hong Kong.

(5) Every director and every manager of an authorized institution which fails without reasonable excuse to comply with any requirement of the Monetary Authority in the exercise of his powers under this section commits an offence and is liable- (a) on conviction upon indictment to a fine of $ 200,000 and to imprisonment for 2 years and, in the case of a continuing offence, to a further fine of $ 10,000 for every day during which the offence continues; or (b) on summary conviction to a fine of $ 50,000 and to imprisonment for 6 months and, in the case of a continuing offence, to a further fine of $ 5,000 for every day during which the offence continues.

(Amended 82 of 1992 s. 25) 87. Limitation on shareholding by authorized institutions (1) Subject to subsection (2), an authorized institution incorporated in Hong Kong shall not acquire or hold any part of the share capital of any other company or companies to an aggregate value in excess of 25 per cent of the capital base of the institution, except such share capital as the institution may hold as security for facilities granted by it or acquire in the course of the satisfaction of debts due to it: (Amended 64 of 1987 s. 23; 95 of 1991 s. 31) Provided that all share capital acquired in the course of the satisfaction of debts due to it shall be disposed of at the earliest suitable opportunity, and in any event not later than 18 months after the acquisition thereof or within such further period as the Monetary Authority approves in writing in any particular case.

(2) Subsection (1) shall not apply- (a) where an authorized institution acquires or holds any part of the share capital of any company or companies under an underwriting or subunderwriting contract for a period not exceeding 7 working days, or such further period as the Monetary Authority approves in writing, and subject to such conditions as he may think proper to attach thereto, in any particular case; (Amended 95 of 1991 s. 31) (b) to any holding, approved in writing by the Monetary Authority, of share capital in- (i) another authorized institution; or (ii) a company carrying out nominee, executor or trustee functions, or other functions related to banking business, the business of taking deposits, insurance business, investments or other financial services; or (Replaced 95 of 1991 s. 31) (c) to any holding, approved in writing by the Monetary Authority, of share capital which is deducted in determining the capital base of the authorized institution. (Added 95 of 1991 s. 31) (3) Every director and every manager of an authorized institution which contravenes this section commits an offence and is liable- (a) on conviction upon indictment to a fine of $ 200,000 and to imprisonment for 2 years and, in the case of a continuing offence, to a further fine of $ 10,000 for every day during which the offence continues; or (b) on summary conviction to a fine of $ 50,000 and to imprisonment for 6 months and, in the case of a continuing offence, to a further fine of $ 5,000 for every day during which the offence continues.

(4) (Repealed 95 of 1991 s. 31) (Amended 82 of 1992 s. 25) 88. Limitation on holding of interest in land by authorized institutions (1) An authorized institution incorporated in Hong Kong shall not purchase or hold any interest or interests in land situated in or outside Hong Kong of a value or to an aggregate value, as the case may be, in excess of 25 per cent of the capital base of the institution. (Amended 95 of 1991 s. 32) (2) An authorized institution may, in addition to the value of any land permitted to be purchased or held under subsection (1), purchase or hold interests in land situated in or outside Hong Kong to any value, where the occupation of such land is, in the opinion of the Monetary Authority, necessary for conducting the business of the institution or providing housing or amenities for the staff of the institution. (Amended 95 of 1991 s. 32; 82 of 1992 s. 25) (3) For the purposes of subsection (2), but without limiting the generality thereof, the Monetary Authority may in his discretion regard as necessary for conducting the business of an authorized institution the whole of any premises in which an office of the institution is situated.

(Amended 82 of 1992 s. 25) (4) (Repealed 95 of 1991 s. 32) (5) There shall not be taken into account in the assessment of the value of interests in land for the purposes of this section the value of any interest in land mortgaged to the authorized institution to secure a debt due to the institution nor the value of any interest in land acquired pursuant to entry into possession of land so mortgaged, provided that the interest acquired is disposed of at the earliest suitable opportunity, and in any event not later than 18 months after its acquisition or within such further period as the Monetary Authority may, in writing, allow in any particular case. (Amended 82 of 1992 s. 25) (6) Every director and every manager of an authorized institution which contravenes this section commits an offence and is liable- (a) on conviction upon indictment to a fine of $ 200,000 and to imprisonment for 2 years and, in the case of a continuing offence, to a further fine of $ 10,000 for every day during which the offence continues; or (b) on summary conviction to a fine of $ 50,000 and to imprisonment for 6 months and, in the case of a continuing offence, to a further fine of $ 5,000 for every day during which the offence continues.

89. (Repealed 95 of 1991 s. 33) 90. Limitation on aggregate holdings under sections 83, 87 and (1) Notwithstanding anything contained in sections 83, 87 and 88, in respect of an authorized institution, the aggregate total of- (a) the amount outstanding of all facilities specified in section 83 (3) provided to or on behalf of persons or bodies specified in section 83 (4); (b) the value of all holdings of share capital specified in section 87; and (c) the value of all holdings of interests in land specified in section 88 (1) and (2), shall not at any time exceed 80% of the capital base of the institution. (Replaced 95 of 1991 s. 34) (2) In assessing the aggregate total which is permissible under subsection (1) there shall not be taken into account any matter which is excluded from the operation of section 83, 87 or 88 by virtue of any of the provisions thereof unless the Monetary Authority, by notice in writing to the authorized institution concerned, otherwise specifies. (Amended 95 of 1991 s. 34; 82 of 1992 s. 25) (3) Every director and every manager of an authorized institution which contravenes this section commits an offence and is liable- (Amended 95 of 1991 s. 34) (a) on conviction upon indictment to a fine of $ 200,000 and to imprisonment for 2 years and, in the case of a continuing offence, to a further fine of $ 10,000 for every day during which the offence continues; or (b) on summary conviction to a fine of $ 50,000 and to imprisonment for 6 months and, in the case of a continuing offence, to a further fine of $ 5,000 for every day during which the offence continues.

91. Proof of compliance with section 80, 81, 83, 85, 86, 87, 88 or 90 (1) Any authorized institution, if at any time called upon in writing by the Monetary Authority so to do, shall satisfy him by the production of such evidence or information as he may require, that the institution is not in contravention of any of the provisions of section 80, 81, 83, 85, 86, 87, 88 or 90 applicable to that institution. (Replaced 95 of 1991 s.

35. Amended 82 of 1992 s. 25) (2) Any authorized institution, if at any time called upon in writing by the Monetary Authority so to do, shall satisfy him by the production of such evidence or information as he may require, whether or not the institution is engaging in any business practices specified in a notice under section 82. (Amended 82 of 1992 s. 25) (3) Every director and every manager of an authorized institution which fails or refuses without reasonable excuse to comply with subsection (1) or (2) commits an offence and is liable- (a) on conviction upon indictment to a fine of $ 200,000 and to imprisonment for 2 years and, in the case of a continuing offence, to a further fine of $ 10,000 for every day during which the offence continues; or (b) on summary conviction to a fine of $ 50,000 and to imprisonment for 6 months and, in the case of a continuing offence, to a further fine of $ 5,000 for every day during which the offence continues.

PART XVI ADVERTISEMENTS, REPRESENTATIONS AND USE OF TITLE "BANK" 92. Offence to issue advertisements and documents relating to deposits (1) Subject to subsection (5), no person shall- (a) issue, or have in his possession for the purposes of issue, any advertisement which to his knowledge is or contains an invitation to members of the public- (i) to make any deposit; or (ii) to enter into, or offer to enter into, any agreement to make any deposit; (b) issue, or have in his possession for the purposes of issue, any document which to his knowledge contains such an advertisement; or (c) in any other manner issue or make an invitation to members of the public to do any of the acts referred to in paragraph (a).

(2) Any person who contravenes subsection (1) commits an offence and is liable on conviction upon indictment or on summary conviction to a fine of $ 10,000.

(3) For the purposes of any proceedings under this section, an advertisement or document in which a person named in the advertisement or document holds himself out as being prepared to take in Hong Kong any deposit shall, subject to subsection (4), be presumed, unless such named person proves to the contrary, to have been issued by him.

(4) A person shall not be taken to contravene this section by reason only that he issues, or has in his possession for the purposes of issue, to purchasers copies of any newspaper, magazine, journal or other periodical publication of general and regular circulation, which contain an advertisement to which this section applies.

(4A) For the purposes of any proceedings under this section, a person whose business it is to publish or arrange for the publication of advertisements shall not be taken to contravene this section if he proves that- (a) he received the advertisement for publication in the ordinary course of his business; (b) the matters contained in the advertisement were not (wholly or in part) devised or selected by him or by any person under his direction or control; and (c) he did not know and had no reason for believing that publication of the advertisement would constitute an offence. (Added 67 of 1992 s. 8) (5) This section shall not apply to- (a) any advertisement or invitation, or any document containing any advertisement or invitation, to make a deposit or to enter into, or offer to enter into, any agreement to make a deposit with an authorized institution; (Amended 64 of 1987 s. 24; 95 of 1991 s. 36) (b) any advertisement or invitation, or any document containing any advertisement or invitation, to which section 4 (1) of the Protection of Investors Ordinance (Cap. 335) does not apply by virtue of section 4 (2) (fb), (fc) or (g) of that Ordinance; or (Replaced 67 of 1992 s. 8) (c) any prescribed advertisement which complies with the requirements specified in the Fifth Schedule applicable to the prescribed advertisement. (Added 95 of 1991 s. 36. Amended 67 of 1992 s. 8) (6) Where any advertisement or invitation, or any document containing any advertisement or invitation, relates to the taking of any deposit and the taking of any such deposit is not, by virtue of section 3 (1) or (2), a taking to which Part III applies then, to the extent that such advertisement, invitation or document, as the case may be, relates to the taking of any such deposit, this section shall not apply to such advertisement, invitation or document, as the case may be. (Added 64 of 1987 s. 24) (7) In this section and the Fifth Schedule, "prescribed advertisement" means any advertisement or invitation, or any document containing any advertisement or invitation, to make a deposit or to enter into, or offer to enter into, any agreement to make a deposit outside Hong Kong. (Added 95 of 1991 s. 36) 93. Fraudulent inducement to make a deposit (1) Any person who, by any fraudulent or reckless misrepresentation, induces another person- (a) to make a deposit with him or any other person; or (b) to enter into or to offer to enter into any agreement to make a deposit with him or any other person, commits an offence and is liable on conviction upon indictment to a fine of $ 1,000,000 and to imprisonment for 7 years.

(2) For the purposes of subsection (1), "fraudulent or reckless misrepresentation" means- (a) any statement- (i) which, to the knowledge of the maker of the statement, was false, misleading or deceptive; or (ii) which was false, misleading or deceptive and was made recklessly; (b) any promise- (i) which the maker of the promise had no intention of fulfilling; (ii) which, to the knowledge of the maker of the promise, was not capable of being fulfilled; or (iii) which was made recklessly; (c) any forecast- (i) which, to the knowledge of the maker of the forecast, was not justified on the basis of facts known to him at the time when he made it; or (ii) which was not justified on the facts known to the maker of the forecast at the time when he made it and was made recklessly; or (d) any statement or forecast from which the maker intentionally or recklessly omitted a material fact with the result that the statement or forecast was thereby rendered false, misleading or deceptive.

94. Liability in tort for inducing persons to make a deposit in certain cases (1) Any person who, by any fraudulent, reckless or negligent misrepresentation, induces another person to make a deposit with him or any other person shall be liable to pay compensation to the person so induced for any pecuniary loss that such person has sustained by reason of his reliance on that misrepresentation.

(2) For the purposes of subsection (1), "fraudulent, reckless or negligent misrepresentation" means- (a) any statement- (i) which, to the knowledge of the maker of the statement, was false, misleading or deceptive; (ii) which was false, misleading or deceptive and was made recklessly; or (iii) which was false, misleading or deceptive and was made without reasonable care having been taken to ensure its accuracy; (b) any promise- (i) which the maker of the promise had no intention of fulfilling; (ii) which, to the knowledge of the maker of the promise, was not capable of being fulfilled; or (iii) which was made recklessly or without reasonable care having been taken to ensure that it could be fulfilled; (c) any forecast- (i) which, to the knowledge of the maker of the forecast, was not justified on the basis of facts known to him at the time when he made it; or (ii) which was not justified on the facts known to the maker of the forecast at the time when he made it and was made recklessly or without reasonable care having been taken to ascertain the accuracy of those facts; or (d) any statement or forecast from which the maker intentionally, recklessly or negligently omitted a material fact with the result that the statement or forecast was thereby rendered false, misleading or deceptive.

(3) For the purposes of this section, where any statement, promise or forecast to which this section relates was made by a company, every person who was a director or controller of the company at the time when the statement, promise or forecast was made shall, until the contrary is proved, be deemed to have caused or permitted it to be made.

(4) This section does not affect any liability of any person at common law.

(5) An action may be brought under this section notwithstanding that the evidence on which the action is or will be based, if substantiated, discloses the commission of an offence and no person has been charged with or convicted of the offence.

(6) For the purposes of this section "company" means, in addition to a company as defined in section 2, any other body of persons, corporate or unincorporate.

95. False, etc. advertisements by authorized institution (1) Where the Monetary Authority is of the opinion that any advertisement issued in connexion with the business of an authorized institution makes a statement or any representation that is false, misleading or deceptive, he may, by notice in writing served on the institution, require the institution to withdraw or, as the circumstances require, remove, and to cease issuing such advertisements and an authorized institution served with such a notice shall, accordingly, comply with that notice. (Amended 82 of 1992 s. 25) (2) Any authorized institution aggrieved by a notice served under subsection (1) may appeal to the Financial Secretary against the requirement contained therein, but the notice shall take effect immediately notwithstanding that an appeal has been or may be made under this subsection.

(3) Every director and every manager of an authorized institution which fails or refuses to comply with any notice served under this section on it commits an offence and is liable- (a) on conviction upon indictment to a fine of $ 200,000 and to imprisonment for 2 years and, in the case of a continuing offence, to a further fine of $ 10,000 for every day during which the offence continues; or (b) on summary conviction to a fine of $ 50,000 and to imprisonment for 6 months and, in the case of a continuing offence, to a further fine of $ 5,000 for every day during which the offence continues.

96. Certain representations prohibited (1) An authorized institution shall not in any communication, whether written or oral, represent or imply, or permit to be represented or implied, in any manner to any person that the institution has in any respect been approved by the Government, the Financial Secretary or the Monetary Authority. (Amended 82 of 1992 s. 25) (2) Subsection (1) is not contravened by reason only that a statement is made to the effect that an authorized institution is licensed or registered.

(3) Every director and every manager of an authorized institution which contravenes subsection (1) without reasonable excuse commits an offence and is liable- (a) on conviction upon indictment to a fine of $ 200,000 and to imprisonment for 2 years; or (b) on summary conviction to a fine of $ 50,000 and to imprisonment for 6 months.

97. Restrictions on use of title "bank" (1) Subject to this section, any person, other than a bank, or an institution which is recognized as the central bank of the place in which it is incorporated, who, without the written consent of the Monetary Authority- (Amended 3 of 1990 s. 39; 95 of 1991 s. 37; 82 of 1992 s. 25) (a) uses the word "bank" or any of its derivatives in English, or any translation thereof in any language or uses the Chinese expression "ngan hong", or uses the letters "b", "a", "n", "k" in that order, in the description or title under which such person is carrying on business in Hong Kong; or (b) makes any representation in any bill head, letter paper, notice, advertisement or in any other manner whatsoever that such person is a bank or is carrying on banking business in Hong Kong, commits an offence and is liable- (i) on conviction upon indictment to a fine of $ 200,000 and to imprisonment for 12 months; or (ii) on summary conviction to a fine of $ 50,000 and to imprisonment for 6 months.

(1A) Where a bank- (a) is incorporated outside Hong Kong; (b) is a bank in the place where it is incorporated; and (c) uses, in the name under which it carries on business as a bank in the place where it is incorporated, any of the terms to which subsection (1) (a) applies, nothing in subsection (1) (a) shall prohibit a local representative office of the bank from using the same name, or any translation thereof in any language, in the name under which the representative office is carrying on in Hong Kong the functions and activities of a representative office provided such name- (i) is used in immediate conjunction with the term "representative office" in the same language as such name (which term, in the case of Chinese, shall be the characters; and (ii) is not more prominent than such term. (Added 95 of 1991 s. 37) (1B) Nothing in subsection (1) (a) shall prohibit a company which is a subsidiary, the holding company, or a subsidiary of the holding company, of a specified bank from using a name which includes the name of such bank, or any translation thereof in any language- (a) in the description or title under which that first-mentioned company is carrying on business in Hong Kong; and (b) for the purpose of indicating the connection between that first mentioned company and such bank, provided the name of such bank is not more prominent than any other part of the name used by that first mentioned company in which the name of such bank is included. (Added 95 of 1991 s.

37) (2) Nothing in this section shall apply to any association of banks formed for the protection or promotion of their mutual interests or to any association of employees of banks formed for the protection or promotion of the mutual interests of such employees.

(3) Nothing in subsection (1) (a) shall prohibit a restricted licence bank using a specified term in the description under which the restricted licence bank is carrying on in Hong Kong the business of taking deposits. (Added 3 of 1990 s. 39) (4) Where a restricted licence bank- (a) is incorporated outside Hong Kong; (b) is a bank in the place where it is incorporated; and (c) uses, in the name under which it carries on business as a bank in the place where it is incorporated, any of the terms to which subsection (1) (a) applies, nothing in subsection (1) (a) shall prohibit the restricted licence bank from using the same name, or any translation thereof in any language, in the name under which the restricted licence bank is carrying on in Hong Kong the business of taking deposits provided such name- (i) is used in immediate conjunction with the term "restricted licence bank" in the same language as such name (which term, in the case of Chinese, shall be the characters specified in paragraph (a) of the definition of "specified term" in subsection (6); and (ii) is not more prominent than such term.

(Added 3 of 1990 s. 39) (5) Nothing in this Ordinance shall affect the determination of any question whether a restricted licence bank or a deposit-taking company is a bank for purposes other than those of this Ordinance, and accordingly nothing in this section shall prohibit a restricted licence bank or a deposit-taking company from using any of the terms to which subsection (1) (a) applies with reference to itself in any case where- (a) it wishes to comply with or take advantage of any relevant provision of law or custom; and (b) it is necessary for it to use any such term in order to be bale to assert that it is complying with or entitled to take advantage of that provision. (Added 3 of 1990 s. 39) (6) In this section- "relevant provision of law or custom" means any enactment, any instrument made under an enactment, any international agreement, any rule of law or any commercial usage or practice which confers any benefit on, or otherwise has effect only in relation to, a person by virtue of such person being a bank; "specified bank" means- (a) a bank which is licensed under section 16; or (b) a bank which- (i) is not licensed under section 16; (ii) is incorporated outside Hong Kong; (iii) uses, in the name under which it carries on business as a bank in the place where it is incorporated, any of the terms to which subsection (1) (a) applies; and (iv) is, in the opinion of the Monetary Authority, adequately supervised by a banking supervisory authority in its place of incorporation; (Added 95 of 1991 s. 37. Amended 82 of 1992 s. 25) "specified term" means any of the following terms- (a) "restricted licence bank" or; (b) "merchant bank" or; (c) "investment bank" or; (d) "wholesale bank" or; (e) a term specified by the Monetary Authority by notice in the Gazette to be a specified term for the purposes of this definition, (Amended 82 of 1992 s. 25) and includes any derivatives of those terms in English or Chinese. (Added 3 of 1990 s. 39) 97A. False statements as to authorized status (1) No person shall describe himself, or otherwise hold himself out, so as to indicate, or reasonably be construed to indicate, that he is- (a) an authorized institution, or carrying on in Hong Kong the business of taking deposits, unless he is an authorized institution; (b) a bank, or carrying on in Hong Kong banking business, unless he is a bank; (c) a restricted licence bank unless he is a restricted licence bank; (d) a deposit-taking company unless he is a deposit-taking company; or (e) a local representative office unless he is a local representative office.

(2) Any person who contravenes subsection (1) commits an offence and is liable- (a) on conviction upon indictment to a fine of $ 200,000 and to imprisonment for 2 years; or (b) on summary conviction to a fine of $ 50,000 and to imprisonment for 6 months. (Added 95 of 1991 s. 38) PART XVII CAPITAL ADEQUACY RATION OF AUTHORIZED INSTITUTIONS 98. Capital adequacy ratio (1) Subject to this Part and Part X, an authorized institution incorporated in Hong Kong shall not, at any time, have a capital adequacy ration of less than 8 per cent as calculated in accordance with the provisions of the Third Schedule and subsection (2) except that any requirement under section 79A (1) referred to in that Schedule shall not apply in calculating such capital adequacy ratio. (Varied L. N. 413 of 1989) (Amended 95 of 1991 s. 39) (2) Subject to subsection (2A), for the purposes of calculating the capital adequacy ratio of an authorized institution which has any subsidiary, the Monetary Authority may, by notice in writing to the institution, require the capital adequacy ratio of the institution to be calculated- (Amended 82 of 1992 s. 25) (a) on a consolidated basis instead of on an unconsolidated basis; or (b) on both a consolidated basis and an unconsolidated basis. (Replaced 95 of 1991 s. 39) (2A) The Monetary Authority may, in a notice under subsection (2) to an authorized institution, require the capital adequacy ratio of the institution to be calculated on a consolidated basis only in respect of such subsidiaries of the institution as are specified in the notice.

(Added 95 of 1991 s. 39. Amended 82 of 1992 s. 25) (3) The Financial Secretary may, by notice in the Gazette, vary the percentage specified in subsection (1).

99. Failure to keep to capital adequacy ratio (1) Where an authorized institution contravenes section 98 (1), it shall forthwith notify the Monetary Authority of that contravention and provide him with such particulars of that contravention as he may require.

(Amended 82 of 1992 s. 25) (2) Where the Monetary Authority is notified under subsection (1) of a contravention of section 98 (1), he shall forthwith notify the Financial Secretary of that contravention and provide him with such particulars of that contravention as he may require. (Amended 82 of 1992 s. 25) (3) Every director and every manager of an authorized institution which contravenes subsection (1) commits an offence and is liable on conviction upon indictment to a fine of $ 500,000 and to imprisonment for 5 years and, in the case of a continuing offence, to a further fine of $ 10,000 for every day during which the offence continues.

100. Remedial action (1) Where an authorized institution contravenes section 98 (1), the institution and the Monetary Authority shall enter into discussions for the purposes of determining what remedial action is required to be taken by the institution for it to comply with that section, but the Monetary Authority shall not be bound by any such discussions.

(2) The Monetary Authority may, after holding such discussions as he thinks fit under subsection (1), by notice in writing served on the authorized institution, require the institution to take such remedial action as is specified in the notice for the purpose of having the institution comply with section 98 (1).

(3) Any authorized institution aggrieved by any requirement contained in a notice under subsection (2) served on it by the Monetary Authority may appeal to the Governor in Council against the requirement, but that requirement shall take effect immediately, notwithstanding that an appeal has been or may be made under this subsection. (Amended 3 of 1990 s. 41) (4) (Repealed 3 of 1990 s. 41) (5) Every director and every manager of an authorized institution which contravenes any requirement contained in a notice under subsection (2) commits an offence and is liable on conviction upon indictment to a fine of $ 500,000 and to imprisonment for 5 years and, in the case of a continuing offence, to a further fine of $ 10,000 for every day during which the offence continues.

(Amended 82 of 1992 s. 25) 101. Monetary Authority may increase capital adequacy ratio for particular authorized institutions (1) The Monetary Authority may, after consultation with an authorized institution, by notice in writing served on it vary the capital adequacy ratio specified in section 98 (1) in relation to that institution by increasing the ratio to- (Amended 82 of 1992 s. 25) (a) in the case of an authorized institution which is a bank, not more than 12 per cent; and (b) in the case of an authorized institution which is a deposit-taking company or a restricted licence bank, not more than 16 per cent, and, where the ratio is so varied, the other provisions of this Part shall, in relation to that institution, apply as if the ratio specified in section 98 (1) were the ratio as so varied. (Varied L.N. 413 of 1989) (Amended 64 of 1987 s. 25; 3 of 1990 s. 42) (2) The Financial Secretary may, by notice in the Gazette, vary any percentage specified in subsection (1).

(3) An authorized institution aggrieved by a variation of the capital adequacy ratio contained in a notice under subsection (1) served on it by the Monetary Authority may appeal, by notice in writing served on the Monetary Authority and the Financial Secretary stating the grounds of the appeal, to the Financial Secretary against the variation, but that variation shall take effect immediately, notwithstanding that an appeal has been or may be made under this subsection. (Amended 82 of 1992 s. 25) (4) The Financial Secretary shall determine an appeal under subsection (3) by confirming, varying or reversing the variation of capital adequacy ratio the subject of the appeal.

PART XVIII LIQUIDITY RATIO OF AUTHORIZED INSTITUTIONS AND MATTERS AFFECTING LIQUIDITY RATIO 102. Liquidity ratio (1) Subject to this Part and Part X, every authorized institution shall maintain a liquidity ratio of not less than 25 per cent in each calendar month as calculated in accordance with the provisions of the Fourth Schedule and this Part.

(2) The liquidity ratio of an authorized institution shall be calculated for each calendar month on the basis of the sum of its liquefiable assets and the sum of its qualifying liabilities, within the meaning of the Fourth Schedule, for each working day of the calendar month concerned except that the Monetary Authority may, as he thinks fit, by notice in writing served on an authorized institution, permit the institution to calculate its liquidity ratio by reference to such days during the calendar month concerned as the Monetary Authority may specify in the notice: (Amended 82 of 1992 s. 25) Provided that if any such specified day is a public holiday the immediately preceding working day shall be taken for the purposes of such calculation.

(3) In relation to an authorized institution that operates in Hong Kong and also elsewhere, this Part shall apply only to its principal place of business in Hong Kong and its local branches and shall do so as if that principal place of business and those branches were collectively a separate authorized institution.

(4) The Financial Secretary may, by notice in the Gazette, vary the percentage specified in subsection (1).

103. Failure to keep to liquidity ratio (1) Where an authorized institution contravenes section 102 (1), it shall forthwith notify the Monetary Authority of that contravention and provide him with such particulars of that contravention as he may require.

(Amended 82 of 1992 s. 25) (2) Where the Monetary Authority is notified under subsection (1) of a contravention of section 102 (1), he shall forthwith notify the Financial Secretary of that contravention and provide him with such particulars of that contravention as he may require. (Amended 82 of 1992 s. 25) (3) Every director and every manager of an authorized institution which contravenes subsection (1) commits an offence and is liable on conviction upon indictment to a fine of $ 500,000 and to imprisonment for 5 years and, in the case of a continuing offence, to a further fine of $ 10,000 for every day during which the offence continues.

104. Remedial action (1) Where an authorized institution contravenes section 102 (1), the institution and the Monetary Authority shall enter into discussions for the purposes of determining what remedial action is required to be taken by the institution for it to comply with that section, but the Monetary Authority shall not be bound by any such discussions.

(2) The Monetary Authority may, after holding such discussions as he thinks fit under subsection (1), by notice in writing served on the authorized institution, require the institution to take such remedial action as is specified in the notice for the purpose of having the institution comply with section 102 (1).

(3) Any authorized institution aggrieved by any requirement contained in a notice under subsection (2) served on it by the Monetary Authority may appeal to the Governor in Council against the requirement, but that requirement shall take effect immediately, notwithstanding that an appeal has been or may be made under this subsection. (Amended 3 of 1990 s. 43) (4) (Repealed 3 of 1990 s. 43) (5) Every director and every manager of an authorized institution which contravenes any requirement contained in a notice under subsection (2) commits an offence and is liable on conviction upon indictment to a fine of $ 500,000 and to imprisonment for 5 years and, in the case of a continuing offence, to a further fine of $ 10,000 for every day during which the offence continues.

(Amended 82 of 1992 s. 25) 105. Monetary Authority may vary liquidity ratio for particular authorized institutions (1) The Monetary Authority may, by notice in writing served on an authorized institution, vary the liquidity ratio specified in section 102 (1) in relation to that institution by increasing or decreasing the ratio and, where the ratio is so varied, sections 102, 103 and 104 shall, in relation to that institution, apply as if the ratio specified in section 102 (1) were the ratio as so varied.

(2) Where the Monetary Authority varies under subsection (1) the liquidity ratio of any authorized institution, he shall forthwith provide the Financial Secretary with particulars of the variation.

(3) An authorized institution aggrieved by a variation of the liquidity ratio contained in a notice under subsection (1) served on it by the Monetary Authority may appeal, by notice in writing served on the Monetary Authority and the Financial Secretary stating the grounds of the appeal, to the Financial Secretary against the variation, but that variation shall take effect immediately, notwithstanding that an appeal has been or may be made under this subsection.

(4) The Financial Secretary shall determine an appeal under subsection (3) by confirming, varying or reversing the variation of liquidity ratio the subject of the appeal.

(Amended 82 of 1992 s. 25) 106. Authorized institutions not to create certain charges and to notify Monetary Authority of certain civil proceedings (1) Subject to subsection (2), an authorized institution incorporated in Hong Kong shall not, except with the approval of the Monetary Authority, which approval shall be subject to such conditions as he may think proper to attach thereto, by whatever means cause the sum total of all amounts secured by way of charge over its assets (excluding contra items) to exceed 5 per cent of the sum total of the value of those assets. (Amended 82 of 1992 s. 25) (2) Where, immediately upon the commencement of this Ordinance, the sum total of all amounts secured by way of charge over the assets (excluding contra items) of an authorized institution incorporated in Hong Kong exceeds 5 per cent of the sum total of the value of those assets, the institution shall be deemed to have an approval under subsection (1) until- (a) the expiration of 3 months after that commencement, or such further period as the Monetary Authority may allow in any particular case; or (Amended 82 of 1992 s. 25) (b) it receives an approval under subsection (1), whichever first occurs.

(3) Where any civil proceedings have been instituted against any authorized institution incorporated in Hong Kong, irrespective of whether the proceedings have been instituted before, on or after the commencement of this Ordinance, the institution shall, if those proceedings, materially affect, or could materially affect, the financial position of the institution, forthwith notify the Monetary Authority of those proceedings and provide the Monetary Authority with such particulars of those proceedings as he may require. (Amended 82 of 1992 s. 25) (4) Every director and every manager of an authorized institution which contravenes subsection (1) or (3) commits an offence and is liable- (a) on conviction upon indictment to a fine of $200,000 and to imprisonment for 2 years and, in the case of a continuing offence, to a further fine of $10,000 for every day during which the offence continues; and (b) on summary conviction to a fine of $50,000 and to imprisonment for 6 months and, in the case of a continuing offence, to a further fine of $5,000 for every day during which the offence continues.

(5) For the purposes of subsections (1) and (2)- "assets" includes assets outside Hong Kong; "charge" includes lien, encumbrance, equitable interest and third party right; "value" shall have the same meaning assigned to it in section 79 (1).

PART XIX 107-116. (Repealed 43 of 1990 s. 8) PART XX INVESTIGATIONS OF AUTHORIZED INSTITUTIONS 117. Investigations on behalf of the Financial Secretary (1) If it appears to the Monetary Authority that it is in the interests of depositors of an authorized institution or a former authorized institution or in the public interest that an inquiry should be made into the affairs of that institution he may make a report to that effect to the Financial Secretary. (Amended 82 of 1992 s. 25) (2) The Financial Secretary, on receipt of a report under subsection (1), may appoint a competent person to investigate and report- (a) to him; and (b) in the case of an authorized institution which is or has been a deposit-taking company, to the Monetary Authority, (Amended 3 of 1990 s.

44; 82 of 1992 s. 25) on the state and conduct of the business of the authorized institution concerned, or any particular aspect of that business specified by him.

(3) The Financial Secretary may, from time to time after making an appointment under subsection (2), and before the person so appointed reports to him, require that person to inquire into any further aspect of the authorized institution concerned.

(4) The person appointed under subsection (2) shall be paid such remuneration and allowances and be appointed on such terms as the Financial Secretary shall from time to time determine.

(5) On receipt of the report of the person appointed under subsection (2) the Financial Secretary may, without limiting the generality of the exercise by him of any other powers which he may exercise under this Ordinance- (a) if he is of the opinion that it is in the public interest to do so, cause the whole or any part of a report under this section to be published in such manner as he thinks fit: Provided that nothing in a report published under this paragraph shall enable any particular customer of an authorized institution to be identified or reveal details of the affairs of any such customer without the consent of that customer; (b) require the person appointed under subsection (2) to report further on any matters arising from the report; (c) refer the report to the Governor in Council with the recommendation that the Governor in Council should exercise one or more of his powers under, in the case of an authorized institution which is a bank, sections 29 and 53 or, in the case of an authorized institution which is a deposit- taking company or a restricted licence bank, section 53; (d) if it appears that an offence may have been committed by any person, refer the report to the Attorney General; (e) in the case of an authorized institution which is a deposit-taking company, refer the report to the Monetary Authority with the recommendation that the Monetary Authority should exercise one or more of his powers under section 31 and Part VI; (Amended 82 of 1992 s. 25) (f) apply to the High Court for a winding-up order under section 122 (5). (Amended 3 of 1990 s. 44) (6) The Financial Secretary shall not exercise his powers under subsection (2) in the case of a former authorized institution which ceased to be an authorized institution 12 months or more before the date of the report under subsection (1).

(7) Any person who- (a) with intent to defeat the purposes of this section or to delay or obstruct the carrying out of an investigation under this section- (i) conceals, destroys, mutilates or alters a document relating to a matter which is the subject of an investigation by a person appointed under subsection (2); or (ii) sends, or causes to be sent, or conspires with another person to send, out of Hong Kong any such document; or (b) knowingly furnishes to a person appointed under subsection (2) any information which is false or misleading in a material particular, commits an offence and is liable on conviction upon indictment or on summary conviction to a fine of $20,000 and to imprisonment for 2 years.

(8) For the avoidance of doubt, it is hereby declared that the reference in subsection (6) to "former authorized institution" shall include any person which was a deposit-taking company within the meaning of this Ordinance as in force at any time before the [1] commencement of the Banking (Amendment) Ordinance 1990 (3 of 1990). (Added 3 of 1990 s. 44) 118. Powers of the inspector and offences in connection with the investigation (1) Subject to this section, the inspector may determine the manner in which an inquiry under section 117 is to proceed.

(2) If the inspector thinks it necessary for the purposes of his investigation, he may also investigate the business of any company which is or has at any relevant time been- (a) a holding company or subsidiary of the body whose business is under investigation; (b) a subsidiary of a holding company of that body; or (c) a holding company of a subsidiary of that body.

(3) It shall be the duty of every director, manager, employee, or agent of a company whose business is under investigation (whether by virtue of section 117 (2) or subsection (2) and any person who has in his possession books, papers or information relevant to the investigation- (a) to produce to the inspector all books and papers relating to the company concerned which are in his custody or power; (b) to attend before the inspector when required to do so; and (c) to answer truthfully and to the best of his ability any questions which may be put to him by the inspector and which are relevant to the investigation: Provided that an inspector shall not require the disclosure by a solicitor or counsel of any privileged communication, whether oral or written, made to or by him in that capacity.

(4) Anything said by any person in answer to a question put by the inspector under subsection (3) (c) shall be inadmissible in any criminal proceedings other than criminal proceedings brought under this section.

(5) Any director, manager, employee or agent of a company and any other person who- (a) without reasonable excuse fails to produce any books or papers which it is his duty to produce under subsection (3); or (b) without reasonable excuse fails to attend before the inspector when required to do so under this section; or (c) fails to answer to the best of his ability any question which is put to him by an inspector with respect to a business which is under investigation under section 117 or to the business of any body corporate which is being investigated by virtue of subsection (2), commits an offence and is liable on conviction upon indictment or on summary conviction to a fine of $20,000 and to imprisonment for 6 months.

(6) In this section- (a) "inspector" means a person appointed under section 117 (2); (b) any reference to a director, manager, employee or agent of a company includes a reference to a person who has been but no longer is a director, manager, employee or agent of that company; (c) "agent" in relation to a company whose business is under investigation includes its bankers and solicitors and any persons, whether officers of the body or not, who are employed as its auditors.

PART XXI MISCELLANEOUS 119. Governor in Council to decide whether or not banking business or business of taking deposits is being conducted (1) In the event of any dispute as to whether a person is carrying on a banking business or a business of taking deposits, the matter, except in the case of a prosecution for any offence against this Ordinance, shall be submitted to the Governor in Council for his determination; and the decision of the Governor in Council shall be final and conclusive for all purposes of this Ordinance.

(2) A submission under subsection (1) may be made by the Financial Secretary or by any bank, deposit-taking company or restricted licence bank or person which or who is interested in the determination of the matter. (Amended 3 of 1990 s. 45) 120. Official secrecy (1) Except as may be necessary for the exercise of any function under this Ordinance or for carrying into effect the provisions of this Ordinance, every person to whom this subsection applies- (Amended 64 of 1987 s. 26) (a) shall preserve and aid in preserving secrecy with regard to all matters relating to the affairs of any person that may come to his knowledge in the exercise of any function under this Ordinance; (b) shall not communicate any such matter to any person other than the person to whom such matter relates; and (c) shall not suffer or permit any person to have access to any records in the possession, custody or control of any person to whom this subsection applies; (2) Subsection (1) shall apply to any person who is or has been- (a) a public officer; (b) a person authorized by the Monetary Authority; (c) a person appointed under section 52 (1) (B), or by order of the Governor in Council under section 53 (1) (ii), to advise an authorized institution in the proper conduct of its business; (d) a person who has assumed control of the business of an authorized institution pursuant to a direction under section 52 (1) (C) or an order of the Governor in Council under section 53 (1) (ii); (e) a person appointed under section 117 (2); and (f) a person employed by or assisting a person to whom this subsection applies by virtue of paragraph (b), (c), (d), or (e), who exercises or has exercised any function under this Ordinance.

(3) Where under section 52 (1) (C) or under section 53 (1) (ii) the Monetary Authority assumes control of and carries on the business of an authorized institution or any other person is directed so to do, subsection (1) shall not apply if the Monetary Authority or such other person is required to comply with a notice to furnish returns and information under section 51 of the Inland Revenue Ordinance (Cap. 112).

(4) No person who exercises any function in the course of an examination or investigation under section 47, 50, 55, or 117 or who receives reports, returns or information submitted under section 47, 50, 55, 56, 59, 63 or 64 shall be required to produce in any court any book, account or other document whatsoever or to divulge or communicate to any court any matter or thing coming under his notice in the exercise of his functions under this Ordinance, except as may be necessary in the course of a prosecution for any offence or of a winding-up by the High Court under section 122.

(Amended 67 of 1992 s. 9) (5) Subsection (1) shall not apply- (a) to the disclosure of information in the form of a summary of similar information provided by a number of authorized institutions if the summary is so framed as to prevent particulars relating to the business of any particular authorized relating to the business of any particular authorized institution being ascertained from it; (b) to the disclosure of information with a view to the institution of, or otherwise for the purposes of, any criminal proceedings, whether under this Ordinance or otherwise; (c) in connection with any other legal proceedings arising out of this Ordinance; (d) to the disclosure of information to the police or the Independent Commission Against Corruption, at the request of the Attorney General, relevant to the proper investigation of any criminal complaint; (e) to the disclosure of information by the Monetary Authority with a view to the institution of, or otherwise for the purposes of, any disciplinary proceedings relating to the exercise of his professional duties by an auditor or former auditor of an authorized institution or former authorized institution, whether or not the auditor or former auditor, as the case may be, was appointed under section 50, 59 or 63; (Replaced 43 of 1990 s. 9. Amended 67 of 1992 s. 9; 82 of 1992 s. 20) (f) to the disclosure of information by the Monetary Authority to the Governor, the Financial Secretary, the Secretary for Financial Services, an inspector appointed by the Financial Secretary to investigate the affairs of a company, a person holding an authorized statutory office or any public officer authorized by the Financial Secretary for the purposes of this paragraph where, in the opinion of the Monetary Authority- (Amended L.N. 96 of 1993) (i) it is desirable or expedient that information should be so disclosed in the interests of depositors or potential depositors or the public interest; or (ii) such disclosure will enable or assist the recipient of the information to exercise his functions and it is not contrary to the interests of depositors or potential depositors or the public interest that the information should be so disclosed; (Replaced 95 of 1991 s. 40) (g) to the disclosure of information by the Monetary Authority to an auditor of an authorized institution or former authorized institution, or to a former auditor, for the purpose of enabling or assisting the Monetary Authority to discharge his functions under this Ordinance; (Replaced 43 of 1990 s. 9. Amended 95 of 1991 s. 40) (h) subject to subsection (5D), to the disclosure of information by the Monetary Authority with the consent of- (i) the person from whom the information was obtained or received; and (ii) where the information does not relate to such person, the person to whom it relates; or (Added 95 of 1991 s. 40) (i) to the disclosure of information which has been made available to the public by virtue of being disclosed in any circumstances in which, or for any purpose for which, disclosure is not precluded by this section or section 121. (Added 95 of 1991 s. 40) (5A) For the purposes of subsection (5) (f), "authorized statutory office" means- (a) the Insurance Authority under the Insurance Companies Ordinance (Cap. 41); or (Amended 10 of 1989 s. 65) (b) the securities and Futures Commission. (Replaced 10 of 1989 s. 65) (c)- (d) (Repealed 10 of 1989 s. 65) (Added 68 of 1988 s. 2) (5B) The Legislative Council may, by resolution, amend subsection (5A).

(Added 68 of 1988 s. 2) (5C) The Monetary Authority may attach a condition to any disclosure of information made pursuant to subsection (5) (b), (c), (d), (e), or (f), and shall attach a condition to any disclosure of information made pursuant to subsection (5) (g), that neither- (a) the person to whom the information has been disclosed; nor (b) any person obtaining or receiving the information (whether directly or indirectly) from the person referred to in paragraph (a), shall disclose that information to any other person without the consent of the Monetary Authority. (Added 95 of 1991 s. 40) (5D) Subsection (2) (h) shall not operate to require the Monetary Authority to disclose in or in relation to any civil proceedings any information which he may disclose, or has disclosed, pursuant to that subsection. (Added 95 of 1991 s. 40) (6) Any person who- (a) contravenes subsection (1); (b) aids, abets, counsels or procures any person to contravene subsection (1); or (c) knowing that the condition referred to in subsection (5C) has been attached to a disclosure of information made pursuant to subsection (5), contravenes, or aids, abets, counsels or procures any person to contravene, that condition, (Added 95 of 1991 s. 40) commits an offence and is liable- (i) on conviction upon indictment to a fine of $500,000 and to imprisonment for 2 years; or (ii) on summary conviction to a fine of $50,000 and to imprisonment for 6 months. (Amended 3 of 1990 s. 46; 82 of 1992 s. 20) 121. Disclosure of information relating to authorized institutions (1) Subject to subsection (3), and notwithstanding section 120, the Monetary Authority may disclose information to an authority in a place outside Hong Kong where- (a) that authority exercises functions in that place corresponding to the functions of- (i) the Monetary Authority; or (ii) an authorized statutory office within the meaning of section 120 (5A); and (b) in the opinion of the Monetary Authority- (i) that authority is subject to adequate secrecy provisions in that place; and (ii) it is desirable or expedient that information should be so disclosed in the interests of depositors or potential depositors or the public interest; or (iii) such disclosure will enable or assist the recipient of the information to exercise his functions and it is not contrary to the interests of depositors or potential depositors or the public interest that the information should be so disclosed. (Replaced 95 of 1991 s. 41) (2) subject to subsection (3) and notwithstanding section 120, the Monetary Authority may, if he considers that it is in the interests of customers of the representative office, provide to the appropriate recognized banking supervisory authority of a place outside Hong Kong which is, in his opinion, subject to adequate secrecy provisions in that place information on matters relating to the affairs of a local representative office which is maintained by a bank incorporated in that place.

(2A) (Replaced 95 of 1991 s. 41) (3) Under no circumstances shall the Monetary Authority provide any information under this section relating to the affairs of any individual customer of an authorized institution or a local representative office.

(Amended 95 of 1991 s. 41) (Amended 82 of 1992 s. 25) 122. Winding-up of authorized institutions (1) The provisions of the Companies Ordinance (Cap. 32) with regard to a creditors' voluntary winding-up shall not apply to authorized institutions.

(2) On a petition by the Financial Secretary, acting in accordance with a direction of the Governor in Council under section 53 (1) (iii), the High Court may- (a) on any ground specified in section 177 of the Companies Ordinance (Cap. 32); or (b) if it is satisfied that it is in the public interest that the authorized institution or former authorized institution should be wound up, order the winding-up of an authorized institution or former authorized institution in accordance with the provisions of the Companies Ordinance (Cap. 32) relating to the winding-up of companies.

(3) Where before the presentation of a petition for the winding-up of an authorized institution by the court, whether or not the petition is presented by the Financial Secretary, the Monetary Authority has assumed control of the business of the institution under section 52 (1) (C) or pursuant to an order of the Governor in Council under section 53 (1) (ii) or some other person has assumed control of the business of the institution pursuant to a direction of the Monetary Authority under section 52 (1) (C) or an order of the Governor in Council under section 53 (1) (ii) and such control has continued at all times until the presentation of the petition, and a winding-up order is made thereon, then, notwithstanding the provisions of section 184 (2) of the Companies Ordinance (Cap. 32), the winding-up of the institution by the court shall, for the purposes of sections 170, 179, 182, 183, 266, 267, 269 and 274, and paragraphs (d), (e), (h), (i), (j), (k), (l) and (0) of section 271 (1), of the Companies Ordinance (Cap. 32), be deemed to have commenced at the time the Monetary Authority or such other person assumed control of the business of the institution. (Amended 95 of 1991 s. 42; 82 of 1992 s.

25) (4) Where the Monetary Authority has assumed control of the business of an authorized institution under section 52 (1) (C) or pursuant to an order of the Governor in Council under section 53 (1) (ii) or some other person has assumed control of the business of an authorized institution pursuant to a direction of the Monetary Authority under section 52 (1) (C) or an order of the Governor in Council under section 53 (1) (ii), nothing in section 182 of the Companies Ordinance (Cap. 32) shall invalidate any disposition of the property of the institution made by it under the direction of the Monetary Authority or such person acting bona fide in the course of the carrying on of the business of the institution. (Amended 82 of 1992 s. 25) (5) Where the Financial Secretary is entitled to petition the High Court by virtue of section 117 (5) (f), the High Court may wind up a deposit- taking company or restricted licence bank or former deposit-taking company or restricted licence bank in accordance with the provisions of the Companies Ordinance (Cap. 32) relating to the winding-up of companies if- (a) the deposit-taking company or restricted licence bank is unable to pay sums due and payable to its depositors or is able to pay such sums only by defaulting on its obligations; or (b) the value of the deposit-taking company's or restricted licence bank's assets is less than the amount of its liabilities. (Replaced 3 of 1990 s. 47) (6) Nothing in this section shall authorize the winding-up of a former deposit-taking company or restricted licence bank which does not continue to have any liability in respect of any deposit for which it had a liability at the time when it was registered or licensed. (Amended 3 of 1990 s. 47) 123. Offences by directors, managers, trustees, employees and agents Any director, manager, trustee, employee or agent of any authorized institution who, with intent to deceive- (a) wilfully makes, or causes to be made, a false entry in any book of record or in any report, slip, document or statement of the business, affairs, transactions, condition, assets or accounts of the institution; (b) wilfully omits to make an entry in any book of record or in any report, slip, document or statement of the business, affairs, transactions, condition, assets or accounts of the institution, or wilfully causes any such entry to be omitted; or (c) wilfully alters, abstracts, conceals or destroys an entry in any book of record, or in any report, slip, document or statement of the business, affairs, transactions, condition, assets or accounts of the institution, or wilfully causes any such entry to be altered, abstracted concealed or destroyed, commits an offence and is liable- (i) on conviction upon indictment to a fine of $500,000 and to imprisonment for 5 years; or (ii) on summary conviction to a fine of $50,000 and to imprisonment for 2 years.

124. Prohibition on receipt of commission by staff Any director or employee of an authorized institution, who asks for or receives, consents or agrees to receive any gift, commission, emolument, service, gratuity, money, property or thing of value for his own personal benefit or advantage or for that of any of his relatives, for procuring or endeavouring to procure for any person any advance, loan, financial guarantee or credit facility from that institution or the purchase or discount of any draft, note, cheque, bill of exchange or other obligation by that institution, or for permitting any person to overdraw any account with that institution, commits an offence and is liable- (a) on conviction upon indictment to a fine of $100,000 and to imprisonment for 5 years; or (b) on summary conviction to a fine of $50,000 and to imprisonment for 2 years.

125. Search warrants and seizures (1) If a magistrate is satisfied by information on oath that there is reasonable ground for suspecting that an offence under this Ordinance has been committed, the magistrate may issue a warrant empowering any police officer to enter and search any premises specified in the warrant.

(2) A police officer to whom a warrant is issued under subsection (1) may- (a) break open any outer or inner door of or in any premises which he is empowered by the warrant to enter and search; (b) inspect, seize and remove anything which the police officer has reasonable grounds for believing to be or to contain evidence of an offence under this Ordinance; and (c) remove by force any person who obstructs any entry, search, inspection, seizure or removal which he is empowered by this subsection to make.

(3) A person from whom any books, accounts or other documents have been seized and removed under subsection (2) shall, pending any proceedings for an offence under this Ordinance, be entitled to take copies of or extracts from such books, accounts or other documents.

(4) Any person who obstructs a police officer in the exercise of any power conferred on him by subsection (2) commits an offence and is liable on conviction upon indictment or on summary conviction to a fine of $50,000 and to imprisonment for 6 months.

126. Defence where director or manager, etc. prosecuted (1) Subject to subsection (2), in proceedings for an offence under this Ordinance it shall be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control. (Replaced 43 of 1990 s. 10) (2) Subsection (1) shall not apply to an offence under section 46 (8), 47 (2) or (3), 50 (6), 64 (5), 72 (4), 73 (2), 97 (1), 117 (7), 118 (5), 120, 123 or 124. (Amended 3 of 1990 s. 48; 95 of 1991 s. 43) 126A. Limit of time for complaint or information (1) In any case of an offence other than an indictable offence the complaint shall be made to or information laid before a magistrate, or an officer of a magistrate's court who is authorized in writing for that purpose by a magistrate, at any time within 3 years after the commission of the offence and within 6 months after evidence sufficient in the opinion of the Attorney General to justify prosecution comes to his knowledge.

(2) For the purposes of subsection (1) a certificate of the Attorney General as to the date on which such evidence as is mentioned in subsection (1) came to his knowledge shall be conclusive evidence of that fact. (Added 43 of 1990 s. 11) 127. Indemnity No liability shall be incurred by- (a) any public officer; (b) any person authorized or employed by the Monetary Authority; (Amended 82 of 1992 s. 25) (c) any person appointed under section 52 (1) (B), or by order of the Governor in Council under section 53 (1) (ii), to advise an authorized institution in the proper conduct of its business; (d) any person who has assumed control of the business of an authorized institution pursuant to a direction under section 52 (1) (C) or an order of the Governor in Council under section 53 (1) (ii); or (e) any person appointed under section 117 (2), as a result of anything done or omitted to be done by him bona fide in the exercise or purported exercise of any functions conferred or imposed by or under this Ordinance.

128. (Repealed 95 of 1991 s. 44) 129. Validity of contract in contravention of this Ordinance or any Ordinance repealed by this Ordinance (1) Subject to section 70B (4) and (5), the contravention of any prohibition in this Ordinance or in any Ordinance repealed by this Ordinance on the entering into of any contract shall not render that contract unenforceable. (Amended 64 of 1987 s. 27; 95 of 1991 s. 45) (2) Subsection (1) shall be deemed to have had effect from 1 April 1976, so, however, that nothing in that subsection as read with this subsection shall have effect in relation to any legal proceedings commenced before the commencement of this Ordinance.

(3) Subject to section 70B (4) and (5), for the avoidance of doubt, it is hereby declared that the contravention of any prohibition in this Ordinance or in any Ordinance repealed by this Ordinance on the entering into of any contract shall not render that contract void. (Added 95 of 1991 s. 45) (4) In this section, "contract" includes a deed which is not otherwise a contract. (Added 95 of 1991 s. 45) 130. Revocation or suspension not affect right (1) (Repealed 95 of 1991 s. 46) (2) Where the licence or, as the case may be, the registration of an authorized institution is revoked or suspended under this Ordinance, such revocation or suspension shall not affect any right- (a) of any person against the institution; or (b) of the institution against any person.

131. Recovery of fees, expenses, etc.

(1) There shall be recoverable at the suit of the Attorney General as a civil debt due to the Crown from the authorized institution concerned- (Amended 43 of 1990 s. 12) (a) the amount of any fees payable under section 19, 23, 26, 45, 48 or 51; (Amended 95 of 1991 s. 47) (b) any remuneration and expenses payable by the authorized institution to any person appointed under section 52 (1) (B) or by order of the Governor in Council under section 53 (1) (ii) to advise the institution in the proper conduct of its business; (c) any remuneration and expenses payable by the authorized institution to the Monetary Authority or to a person authorized by the Monetary Authority to assist him in the control and carrying on of the business of the institution or to any other person who has assumed control of the business of the institution pursuant to a direction under section 52 (1) (C) or an order of the Governor in Council under section 53 (1) (ii); and (Amended 67 of 1992 s. 10; 82 of 1992 s. 21) (d) any expenses or dered by the Financial Secretary to be defrayed by the authorized institution under section 55 (3). (Amended 67 of 1992 s.

10) (e) (Repealed 67 of 1992 s. 10) (2) There shall be recoverable, at the suit of the attorney general, as a civil debt due from the applicants, jointly and severally, to the Crown, any expenses ordered by the Financial Secretary to be defrayed by the applicants under section 55 (3).

(3) Any sum recoverable under this section at the suit of the Attorney General shall be a debt due to the Crown within the meaning of section 265 (1) (a) of the Companies Ordinance (Cap. 32) and section 38 (1) (a) of the Bankruptcy Ordinance (Cap. 6).

(4) The fees, remuneration, expenses and sums of money recoverable under this section shall be paid to the Director of Accounting Services, (Added 82 of 1992 s. 21) 131A. Cost related fees to be paid into Exchange Fund Any part of moneys paid to the Director of Accounting Services under section 19, 23, 26, 45, 48, 51 or 131 (4), which relates to the administrative or other costs incurred or likely to be incurred by the Exchange Fund in connection with or otherwise in relation to the performance of any function under this Ordinance, shall be paid by him into the Exchange Fund.

(Added 82 of 1992 s. 22) 132. Use of English language (1) All entries in books and accounts kept by authorized institutions shall be recorded in the English language and the Arabic system of numerals shall be employed.

(2) All forms and information required to be sent and all returns required to be made to the Monetary Authority pursuant to any of the Provisions of this Ordinance shall be complied in the English language and the Arabic system of numerals and, if any such form, information or return is a translation, be certified to the satisfaction of the Monetary Authority as a true and correct translation. (Amended 82 of 1992 s. 25) (3) Every director and every manager of an authorized institution which contravenes subsection (1) or (2) commits an offence and is liable on conviction upon indictment or on summary conviction to a fine of $50,000 and, in the case of a continuing offence, to a further fine of $5,000 for every day during which the offence continues.

133. Power to specify forms The Monetary Authority may specify the form of application for licensing or registration and of any notice, certificate or other document required for the purposes of this Ordinance.

(Amended 82 of 1992 s. 25) 134. Service of documents Without limiting the generality of section 356 of the Companies Ordinance (Cap. 32), a document may be served on an authorized institution by leaving it at or sending it by post to its principal place of business in Hong Kong.

135. Power to amend Schedules (1) The Governor in Council may, by notice in the Gazette, amend the First Schedule.

(2) The Legislative Council may, by resolution, amend the Second Schedule.

(3) The Financial Secretary may, by notice in the Gazette, amend the Third, the Fourth or the Fifth Schedule. (Amended 95 of 1991 s. 48) (4) (Repealed 95 of 1991 s. 48) 136. Consent of Attorney General No prosecution in respect of any offence under this Ordinance shall be instituted without the consent in writing of the Attorney General.

137. (Amendments Incorporated) 137A. Exclusion of provisions of Gambling Ordinance (1) Subject to subsection (2), the Gambling Ordinance (Cap. 148) shall not apply to any transaction proposed to be entered into, or entered into, by an authorized institution.

(2) Subsection (1) shall not apply to a transaction, or a transaction belonging to a class of transactions, specified by the Monetary Authority by notice in the Gazette as being a transaction, or a class of transactions, as the case may be, to which that subsection shall not apply. (Amended 82 of 1992 s. 25) (Added 64 of 1987 s. 28) PART XXII TRANSITIONAL, SAVINGS AND REPEAL 138. Interpretation In this Part, unless the context otherwise requires- "former bank" means a bank which, immediately before the commencement of this Ordinance, held a former banking licence; "former Banking Advisory Committee" means the Banking Advisory Committee established by section 3 of the former Banking Ordinance and as constituted immediately before the commencement of this Ordinance; "former banking licence" means a licence granted under section 7 or 42 of the former Banking Ordinance and in force immediately before the commencement of this Ordinance; "former Banking Ordinance (Cap. 155, 1983 Ed.)" means the Banking Ordinance 1964 repealed by this Ordinance; "former Commissioner" means the person who was, immediately before the commencement of this Ordinance, the Commissioner of Banking under section 4 of the former Banking Ordinance and, for the purposes of this Part, any reference in the former Deposit-taking Companies Ordinance to the Commissioner of Deposit-taking Companies shall be deemed to be a reference to such Monetary Authority of Banking; "former Deposit-taking Companies Advisory Committee" means the Deposit- taking Companies Advisory Committee established by section 4 of the former Deposit-taking Companies Ordinance and as constituted immediately before the commencement of this Ordinance; "former Deposit-taking Companies Ordinance (Cap. 328, 1983 Ed.)" means the Deposit-taking Companies Ordinance 1976 repealed by this Ordinance; "former deposit-taking licence" means a licence granted under section 16B of the former Deposit-taking Companies Ordinance and in force immediately before the commencement of this Ordinance; "former registration" means registration under section 10 of the former Deposit-taking Companies Ordinance which was in force immediately before the commencement of this Ordinance.

139. Appointed members of former committees to continue in office (1) Any member of the former Banking Advisory Committee who was such a member by virtue of an appointment under section 3 (2) of the former Banking Ordinance shall, on and from the commencement of this Ordinance, be deemed to be a member of the Banking Advisory Committee as if, on that commencement, he had been appointed under section 4 (2) to be a member of the Banking Advisory Committee for the period he had left to serve, immediately before that commencement, as a member of the former Banking Advisory Committee and, for that purpose and for that period, the terms on which he was so appointed as a member of the former Banking Advisory Committee shall be the terms on which he shall be a member of the Banking Advisory Committee.

(2) Any member of the former Deposit-taking Companies Advisory Committee who was such a member by virtue of an appointment under section 5 (1) (c) of the former Deposit-taking Companies Ordinance shall, on and from the commencement of this Ordinance, be deemed to be a member of the Deposit- taking Companies Advisory Committee as if, on that commencement, he had been appointed under section 5 (2) to be a member of the Deposit-taking Companies Advisory Committee for the period he had left to serve, immediately before that commencement, as a member of the former Deposit-taking Companies Advisory Committee and, for that purpose and for that period, the terms on which he was so appointed as a member of the former Deposit-taking Companies Advisory Committee shall be the terms on which he shall be a member of the Deposit-taking Companies Advisory Committee.

140. (Repealed 82 of 1992 s. 23) 141. Authorized and employed persons to continue to be authorized and employed Any person who was, immediately before the commencement of this Ordinance, authorized or employed under section 4A of the former Banking Ordinance to assist the former Monetary Authority in the exercise of his functions and duties under the former Banking Ordinance, either generally or in any particular case, shall, on and from the commencement of this Ordinance, be deemed, in the like capacity, to be authorized or employed to assist the Commissioner in the exercise of his functions under this Ordinance as if, on that commencement, he had been, in the like capacity, authorized or employed under section 8 to assist the Commissioner in the exercise of his functions under this Ordinance for the period he had left, immediately before that commencement, to be so authorized or employed under the former Banking Ordinance.

142. Former applications for licences, etc. deemed to be applications under this Ordinance Where, immediately before the commencement of this Ordinance, there was in existence- (a) an application for a former banking licence under section 6 of the former Banking Ordinance in relation to which the Governor in Council had not granted or refused a former banking licence under section 7 of the former Banking Ordinance; (b) an application for former registration under section 9 of the former Deposit-taking Companies Ordinance in relation to which there has not been any registration or refusal of registration by the Monetary Authority under section 10 of the former Deposit-taking Companies Ordinance; or (c) an application for a former deposit-taking licence under section 16A of the former Deposit-taking Companies Ordinance in relation to which the Financial Secretary had not granted or refused a former deposit-taking licence under section 16B of the former Deposit-taking Companies Ordinance, then- (i) in the case of an application referred to in paragraph (a), the application shall be deemed to be an application under section 15 for a banking licence; (ii) in the case of an application referred to in paragraph (b), the application shall be deemed to be an application under section 20 for registration; and (iii) in the case of an application referred to in paragraph (c), the application shall be deemed to be an application under section 24 for a deposit-taking licence, and the provisions of this Ordinance shall apply accordingly.

143. Former licences, etc. deemed to be licences, etc. under this Ordinance.

(1) Any former banking licence shall, on and from the commencement of this Ordinance, be deemed to be- (a) in the case of a former banking licence granted under section 7 of the former Banking Ordinance, a banking licence granted under section 16; (Amended 43 of 1990 s. 13) (b) (Repealed 43 of 1990 s. 13) and the provisions of this Ordinance shall apply accordingly.

(2) Any former registration shall, on and from the commencement of this Ordinance, be deemed to be registration under section 21, and the provisions of this Ordinance shall apply accordingly.

(3) Any former deposit-taking licence shall, on and from the commencement of this Ordinance, be deemed to be a deposit-taking licence granted under section 25, and the provisions of this Ordinance shall apply accordingly.

(4) Notwithstanding Part VII of the former Deposit-taking Companies Ordinance, any former registration or former deposit-taking licence which was, immediately before the commencement of this Ordinance, suspended under that Part shall, on and from that commencement, but subject to section 146, be deemed, for the purposes of subsections (2) and (3) and the definitions of "former registration" and "former deposit-taking licence" in section 138, to be in force immediately before that commencement.

144. Date of payment of certain fees Where, under this Ordinance, a bank, registered deposit-taking company or licensed deposit-taking company is required to pay any fee specified in the Second Schedule, irrespective of whether the words "authorized institution" are used to create any such requirement, by reference to the anniversary of the date on which the bank, registered deposit-taking company or licensed deposit-taking company was licensed or registered, as the case may be, or words to that effect, and the banking licence, registration or deposit-taking licence, as the case may be, held by that bank, registered deposit-taking company or licensed deposit-taking company is deemed by virtue of section 143 to be a banking licence, registration or deposit-taking licence, as the case may be, then, for the purposes of paying any such fee, and notwithstanding any other provision of this Ordinance, such reference to the anniversary of the date on which the bank, registered deposit-taking company or licensed deposit-taking company was licensed or registered shall be the anniversary of the date on which the bank, registered deposit-taking company or licensed deposit-taking company was licensed or registered, as the case may be, under the former Banking Ordinance or former Deposit-taking Companies Ordinance, as the case may be.
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