SECURITIES AND FUTURES COMMISSION ORDINANCE
SECURITIES AND FUTURES COMMISSION ORDINANCE
(CHAPTER 24)
ARRANGEMENT OF SECTIONS
Section
PART I PRELIMINARY
1. Short title
2. Interpretation
PART II SECURITIES AND FUTURES COMMISSION
3. Securities and Futures Commission
4. Functions of Commission
5. Constitution of Commission
6. Commission may establish committees
7. Staff of Commission
8. General powers of Commission
9. Delegation and sub-delegation of Commission's functions
10. Advisory Committee
11. Directions to Commission
12. Annual report of Commission
13. Commission to furnish information
14. Financial year and estimates of income and expenditure
15. Accounts
16. Auditors and audit
17. Investment of funds
PART III SECURITIES AND FUTURES APPEALS PANEL
18. Constitution of Appeals Panel
19. Appeals (registration, forfeiture and notices)
20. Hearing of appeals by tribunal
21. Procedure for appeals
22. Case stated
PART IV ADDITIONAL REGISTRATION REQUIREMENTS
23. Applications under section 51 of Securities Ordinance or section 30 of
Commodities Trading Ordinance; supplementary provisions
24. Applicant under Securities Ordinance or Commodities Trading Ordinance
to furnish information to Commission
25. Certificates of registration to continue in force
26. Section 23 (2) and (3) to apply to inquiries under section 56 of
Securities Ordinance or section 36 of Commodities Trading Ordinance
27. Registered persons to notify Commission where records etc. kept
28. Financial resources rules
29. Modification of financial resources rules in particular cases
PART V REGULATION OF REGISTERED PERSONS' BUSINESS, ETC.
30. Supervision
31. Information relating to transactions
32. Certification to High Court relating to non-compliance under section
30 or 31 33. Investigations
34. Returns
35. Production of computerized information
36. Magistrate's warrant
37. Destruction etc. of documents
38. Powers of intervention
39. Restriction of business
40. Restriction on dealing with assets
41. Maintenance of assets
42. Provisions relating to notices under section 39, 40, 41 or 43
43. Withdrawal, substitution or variation of notices under section 39, 40
or 41 44. Appeals against notices under this Part
45. Winding-up orders
46. Receiving orders
PART VI SPECIAL PROVISIONS RELATING TO EXCHANGE COMPANIES AND
CLEARING HOUSES 47. Transfer and resumption of functions
48. Information: Exchange Companies and clearing houses
49. Notice of closure or re-opening
50. Additional powers-restriction notices relating to Exchange Companies
and clearing houses
51. Additional powers-suspension orders relating to Exchange Companies
and clearing houses
PART VII FUNDING
52. Levies
53. Appropriation
54. Fees and other charges
PART VIII MISCELLANEOUS
55. Injunctions to restrain contraventions
55A. Waiver or modification of requirements
56. Immunity, etc.
57. Liability of directors, etc.
58. Evidence
59. Preservation of secrecy, etc.
60. Service of notices
61. Penalties for offences
62. Prosecution of certain offences by Commission
63. Dissolution of Provisional Securities and Futures Commission Limited
and transfer of property
64. Transitional
SCHEDULE Functions of Commission to which section 9 does not apply
To establish the Securities and Futures Commission and to amend the law
relating to dealing in securities and trading in futures contracts; and to
provide for connected or incidental matters.
[The Ordinance other than sections 27 (1) to (8), 30, 31, 32 and 65 as
read with item 1 (b) of paragraph 4 of Schedule 2 insofar as they relate
to the repeal of sections 122 and 123 of the Securities Ordinance
1 May 1989 L. N. 126 of 1989
The remaining provisions: 1 August 1989] L. N. 230 of 1989
PART I PRELIMINARY
1. Short title
This Ordinance may be cited as the Securities and Futures Commission
Ordinance.
2. Interpretation
In this Ordinance, unless the context otherwise requires-
"clearing house" means a clearing house within the meaning of section 2
(1) of the Commodities Trading Ordinance (Cap. 250) or a recognized
clearing house within the meaning of section 2 of the Securities (Clearing
Houses) Ordinance (Cap. 420); (Amended 66 of 1990 s. 2; 68 of 1992 s. 20)
"the Commission" means the Securities and Futures Commission established
by section 3; "Commodity Exchange" has the meaning assigned to it by
section 2 (1) of the Commodities Trading Ordinance (Cap. 250);
"company" means any company within the meaning of the Companies Ordinance
(Cap. 32) and includes an overseas company within the meaning of that
Ordinance or any other body corporate incorporated in Hong Kong having a
share capital;
"data equipment" has the meaning assigned to it by section 27;
"data material" means any document or other material used in connection
with or produced by data equipment;
"establishment day" means the day on which section 3 comes into operation;
"Exchange Company" means-
(a) the Stock Exchange Company; or
(b) the Futures Exchange Company,
and "Exchange Companies" means both of those companies;
"executive director" and "non-executive director" mean a director of the
Commission who is appointed under section 5 as an executive director and a
non-executive director thereof, respectively; "exempt dealer" has the
meaning assigned to it by section 2 (1) of the Securities Ordinance (Cap.
333);
"financial resources rules" means rules made under section 28; "financial
year" means the period specified in section 14 (1);
"firm" has the meaning assigned to it by section 2 (1) of the Commodities
Trading Ordinance (Cap. 250);
"function" includes power and duty;
"futures contract" has the meaning assigned to it by section 2 (1) of the
Commodities Trading Ordinance (Cap. 250);
"Futures Exchange Company" means the Exchange Company within the meaning
of section 2 (1) of the Commodities Trading Ordinance (Cap. 250);
"group of companies" has the meaning assigned to it by section 2 (1) of
the Companies Ordinance (Cap. 32);
"Monetary Authority" means the Monetary Authority appointed under section
5A of the Exchange Fund Ordinance (Cap. 66); (Added 82 of 1992 s. 6)
"officer", in relation to a company, has the meaning assigned to it by
section 2 (1) of the Companies Ordinance (Cap. 32);
"Panel" means the Securities and Futures Appeals Panel established by
section 18; "property investment arrangements" means investment
arrangements as defined in relation to property other than securities by
section 2 of the Protection of Investors Ordinance (Cap. 335);
"record or other document" includes-
(a) a book, voucher, receipt or data material, or information which is
recorded in a non-legible form but is capable of being reproduced in a
legible form; and (b) any document, disc, tape, sound track or other
device in which sounds or other data (not being visual images) are
embodied so as to be capable (with or without the aid of other equipment)
of being reproduced and any film (including a microfilm), tape or other
device in which visual images are embodied so as to be capable (as
aforesaid) of being reproduced;
"registered person" means a person who is registered under the Securities
Ordinance (Cap. 333), the Commodities Trading Ordinance (Cap. 250) (or
both those Ordinances) as a dealer, dealing partnership, dealer's
representative, investment adviser, commodity trading adviser, investment
advisers' partnership, investment representative or a commodity trading
adviser's representative;
"the relevant Ordinances" means this Ordinance, Part II of the Companies
Ordinance (Cap. 32) (insofar as that Part relates, whether directly or
indirectly, to the performance of functions by the Commission in relation
to prospectuses and purchase by a company of its own shares) and Part XII
of that Ordinance (insofar as that part relates, whether directly or
indirectly, to the performance of functions by the Commission in relation
to prospectuses), the Securities Ordinance (Cap. 333), the Commodity
Exchanges (Prohibition) Ordinance (Cap. 82), the Commodities Trading
Ordinance (Cap. 250), the Protection of Investors Ordinance (Cap. 335),
the Stock Exchanges Unification Ordinance (Cap. 361), the Securities
(Clearing Houses) Ordinance (Cap. 420), the Securities (Disclosure of
Interests) Ordinance (Cap. 396) and the Securities (Insider Dealing)
Ordinance (Cap. 395); (Amended 62 of 1990 s. 41; 68 of 1992 s. 20; 87 of
1992 s. 2) "securities" has the meaning assigned to it by section 2 (1) of
the Securities Ordinance (Cap. 333);
"Stock Exchange Company" means the Exchange Company within the meaning of
section 2 (1) of the Stock Exchanges Unification Ordinance (Cap. 361);
"trading in commodity futures contracts" has the meaning assigned to it by
section 2 (1) of the Commodities Trading Ordinance (Cap. 250);
"tribunal" means a tribunal appointed under section 20;
"Unified Exchange" has the meaning assigned to it by section 2 (1) of the
Stock Exchanges Unification Ordinance (Cap. 361).
PART II SECURITIES AND FUTURES COMMISSION
3. Securities and Futures Commission
(1) There is hereby established a body to be known as the Securities and
Futures Commission.
(2) The Commission shall be a body corporate with power to sue and be
sued. (3) The receipts of the Commission shall not be subject to taxation
under the Inland Revenue Ordinance (Cap. 112).
(4) (a) The Commission shall provide itself with a seal.
(b) The seal of the Commission shall be authenticated by the signature of
the chairman or deputy chairman of the Commission or, if both the chairman
and deputy chairman of the Commission are absent from Hong Kong or unable
to act, the signature of some other director of the Commission authorized
by it to act in that behalf.
4. Functions of Commission
(1) The Commission shall have the following functions-
(a) to advise the Financial Secretary on all matters relating to
securities, futures contracts and property investment arrangements;
(b) without prejudice to any duties imposed or powers conferred on any
other person in regard to the enforcement of the law relating to
securities, futures contracts and property investment arrangements, to be
responsible for ensuring that the provisions of the relevant Ordinances,
and the provisions of any other Ordinance so far as they relate to
securities, futures contracts and property investment arrangements, are
complied with;
(c) to report to the Financial Secretary the occurrence of any dealing in
relation to securities which it reasonably believes or suspects to be an
insider dealing within the meaning of section 9 of the Securities (Insider
Dealing) Ordinance (Cap. 395); (Amended 62 of 1990 s. 42)
(d) to be responsible for supervising and monitoring the activities of the
Exchange Companies and clearing houses;
(e) to take all reasonable steps to safeguard the interests of persons
dealing in securities or trading in futures contracts or entering into
property investment arrangements;
(f) to promote and encourage proper conduct amongst members of the
Exchange Companies and clearing houses, and other registered persons;
(g) to suppress illegal, dishonourable and improper practices in dealing
in securities, trading in futures contracts, entering into property
investment arrangements, and the provision of investment advice or other
services relating to securities, futures contracts and property investment
arrangements;
(h) to promote and maintain the integrity of registered persons and
encourage the promulgation by registered persons of balanced and informed
advice to their clients and to the public generally;
(i) to consider and suggest reforms of the law relating to securities,
futures contracts and property investment arrangements;
(j) to encourage the development of securities and futures markets in Hong
Kong and the increased use of such markets by investors in Hong Kong and
elsewhere; (k) to promote and develop self-regulation by market bodies in
the securities and futures industries;
(ka) subject to the provisions of this Ordinance, to co-operate with and
assist authorities or regulatory organizations, in Hong Kong or elsewhere,
that are concerned with securities and futures, or with banking, insurance
or other financial services or with the affairs of corporations; (Added 67
of 1991 s. 2)
(1) to perform any other functions conferred by or under any other
Ordinance.
(2) As regards any function, the Commission may, for the guidance of
registered persons and others, prepare and cause to be published in the
Gazette guidelines indicating the manner in which, in the absence of any
particular consideration or circumstance, it proposes to perform the
function.
(3) The Commission may from time to time engage such consultants or
advisers as it may consider necessary to assist the Commission in the
performance of its functions. (4) Nothing in subsection (1) (k) shall be
regarded as limiting or otherwise affecting any other function of the
Commission.
5. Constitution of Commission
(1) Subject to subsection (2), the Commission shall consist of a chairman
appointed by the Governor and such uneven number, not being less than 7,
of other directors so appointed as the Governor may determine; and when
the number of such other directors ceases to be an uneven number the
Governor shall make such appointment or appointments as may be necessary
to comply with this subsection.
(2) Half of the directors of the Commission, including the chairman, shall
be appointed to be executive directors and the remainder shall be
appointed to be non-executive directors.
(3) The Governor may appoint an executive director to be deputy chairman
of the Commission.
(4) (a) If no appointment has been made under subsection (3) or if the
office of deputy chairman of the Commission is vacant, the Financial
Secretary may designate an executive director to act as chairman of the
Commission during any period during which the chairman of the Commission
is unable to act as chairman due to illness or other incapacity or is
absent from Hong Kong.
(b) A designation under this subsection shall cease when revoked by the
Financial Secretary or an appointment is made under subsection (3),
whichever first occurs. (5) The terms and conditions of office of a
director of the Commission shall be such as the Governor may determine.
(6) A director of the Commission may at any time resign his office by
letter sent to the Governor.
(7) A director of the Commission shall be paid by the Commission such
remuneration, allowances or expenses as the Governor may determine.
(8) The Governor may by notice in writing remove from office any director
of the Commission whose removal appears to him to be desirable for the
effective performance by the Commission of its functions.
(9) Meetings of the Commission shall be held as often as may be necessary
for the performance of its functions, and may be convened by the chairman
or the deputy chairman or any 2 other directors.
(10) If the office of chairman of the Commission is vacant or the chairman
of the Commission is unable to act as chairman due to illness or other
incapacity or is absent from Hong Kong the deputy chairman or an executive
director designated under subsection (4) shall act as chairman in his
place.
(11) At a meeting of the Commission-
(a) the chairman shall be chairman of the meeting; or
(b) if the chairman is not present, the deputy chairman shall be chairman
of the meeting; or
(c) if neither the chairman nor the deputy chairman is present, the
directors present shall choose one of their number to be chairman of the
meeting.
(12) The quorum for a meeting of the Commission shall be 4 directors of
whom 2 shall be executive directors and 2 shall be non-executive
directors.
(13) Each director of the Commission present at a meeting thereof shall
have a vote. (14) (a) Every question for decision at a meeting of the
Commission shall be determined by a majority of votes of the directors
present and, in the event that voting is equally divided, subject to
paragraph (b) the chairman of the meeting shall have a casting vote. (b)
The chairman of a meeting shall not exercise a casting vote until after he
has consulted the Financial Secretary as regards that exercise.
(15) The Commission may act notwithstanding a vacancy among its directors.
(16) The Commission shall organize and regulate its administration,
procedure and business.
6. Commission may establish committees
(1) The Commission may establish standing or special committees and may
refer or assign to any such committee any matter for consideration,
inquiry or management by the committee.
(2) The Commission may appoint any person to be a member of any committee
established under this section, whether that person is a director of the
Commission or not. (3) Any reference or assignment under subsection (1)
and every appointment under subsection (2) may be withdrawn or revoked by
the Commission at any time, and no such reference or assignment shall
prevent the performance by the Commission of any of its functions.
(4) A committee established under this section may elect any of its
members to be chairman and may regulate its own procedure and business;
and in the exercise of its powers under this subsection such committee
shall be subject to and act in accordance with any direction given to the
committee by the Commission for the purposes of this subsection.
(5) Meetings of a committee established under this section shall be held
at such times and places as the chairman of that committee may, subject to
subsection (4), determine.
7. Staff of Commission
(1) The Commission may from time to time employ persons who shall be paid
such remuneration and allowances and shall hold their employment on such
other terms and conditions as the Commission shall determine.
(2) The Commission may make arrangements for or in respect of the
provision and maintenance of such schemes (whether contributory or not)
for the payment to its employees and their dependants of such retirement
benefits, gratuities or other allowances as it may determine.
8. General powers of Commission
For the purposes of this Ordinance, the Commission may-
(a) acquire, hold and dispose of property of any description;
(b) make contracts or other agreements;
(c) receive and expend moneys;
(d) with the approval of the Financial Secretary, borrow money on such
security or other conditions as it considers expedient;
(e) subject to section 59, cause to be printed or publish any material.
9. Delegation and sub-delegation of Commission's functions
(1) Subject to subsection (2), the Commission may delegate any of its
functions, other than its power under this section to delegate or a
function specified in the Schedule, to-
(a) any of the directors of the Commission;
(b) any committee established under section 6; or
(c) any employee of the Commission.
(2) (a) A delegation under this section shall not prevent the concurrent
performance by the Commission of the function delegated.
(b) The Commission may revoke a delegation under this section.
(3) Where the Commission makes a delegation under this section, it may at
the same time authorize the person or committee to whom the delegation is
made to sub-delegate the function delegated and such authorization may
contain restrictions or conditions as regards the exercise of the power to
sub-delegate under the authorization. (4) Where any person or committee
purports to act pursuant to a delegation or sub-delegation under this
section, he or it shall be presumed, until the contrary is shown, to be
acting in accordance with the terms of the delegation or sub-delegation.
(5) The Legislative Council may by resolution amend the Schedule.
10. Advisory Committee
(1) There shall be an Advisory Committee to advise the Commission which
shall consist of the Chairman and not more than 2 executive directors of
the Commission, who shall be appointed by the Commission, and not less
than 8 or more than 12 other members appointed by the Governor after
consultation with the Commission.
(2) The Advisory Committee shall meet at least once every 3 months.
(3) A meeting of the Advisory Committee may be convened by-
(a) the chairman of the Commission; or
(b) any other 3 members of the Advisory Committee.
(4) At a meeting of the Advisory Committee-
(a) the chairman of the Commission shall preside; or
(b) if the chairman of the Commission is not present, the members present
shall choose one of their number to preside.
(5) The Commission may request the Advisory Committee to advise it on any
matter of policy regarding the performance of any of its functions.
(6) Where a member of the Advisory Committee appointed by the Commission
ceases to be an executive director of the Commission, he shall thereupon
cease to be a member of the Advisory Committee.
(7) The Governor may by notice in writing remove a person from membership
of the Advisory Committee.
11. Directions to Commission
(1) The Governor may give to the Commission such directions in writing as
regards the performance of any of its functions as he considers
appropriate.
(2) The Commission shall in performing its functions comply with any
direction under this section.
12. Annual report of Commission
The Commission shall, as soon as practicable after the end of each
financial year, prepare a report on its activities during that financial
year and send a copy of the report to the Financial Secretary who shall
cause a copy thereof to be laid on the table of the Legislative Council.
13. Commission to furnish information
The Commission shall, when required by the Financial Secretary, furnish
such information with respect to the policy it is pursuing or proposes to
pursue in the performance of any of its functions as he may specify.
14. Financial year and estimates of income and expenditure
(1) The financial year of the Commission shall be the period of 12 months
beginning on 1 April, and its first financial year shall commence on the
establishment day and end on the following 31 March.
(2) The Commission shall not later than 31 December in each financial year
submit to the Governor for his approval estimates of its income and
expenditure for the next financial year.
(3) The estimates as approved under subsection (2) shall be laid on the
table of the Legislative Council.
15. Accounts
The Commission shall cause proper accounts and records to be kept of all
transactions and shall, as soon as practicable after the end of each
financial year, cause to be prepared for that financial year a statement
of the accounts of the Commission, which statement shall-
(a) include an income and expenditure account and balance sheet; and
(b) be signed by the chairman and 1 non-executive director of the
Commission.
16. Auditors and audit
(1) (a) The Commission shall, as soon as practicable after the end of each
financial year, submit the statement of the accounts prepared for that
year under section 15 for audit to auditors appointed by the Commission
with the approval of the Financial Secretary, and the auditors shall
prepare a report on the accounts and send the report to the Commission who
shall, as soon as possible, send a copy of the report and a copy of the
statement of accounts to the Financial Secretary.
(b) The auditors' report shall include-
(i) a statement whether, in the auditors' opinion, the income and
expenditure account for the financial year to which the report relates
gives a true and fair view of the Commission's surplus or deficit;
(ii) a statement whether, in such opinion, the balance sheet for such
financial year gives a true and fair view of the Commission's financial
affairs at the end of that financial year.
(2) The Financial Secretary shall cause a copy of the auditors' report and
a copy of the statement of accounts to be laid on the table of the
Legislative Council. (3) The Director of Audit or any other public
officer authorized by him for the purposes of this subsection may at any
reasonable time examine any account, record or other document kept by the
Commission and, if he thinks fit, make a copy of the whole or any entry in
any such document.
(4) An auditor appointed under subsection (1) shall have a right of access
at all reasonable times to the books, accounts, vouchers and other records
of the Commission and shall be entitled to require from the officers of
the Commission such information and explanations as he considers necessary
for the performance of his duties as auditor.
17. Investment of funds
Funds of the Commission which are not immediately required may be invested
by the Commission in such manner as the Financial Secretary shall approve.
PART III SECURITIES AND FUTURES APPEALS PANEL
18. Constitution of Appeals Panel
(1) For the purposes of hearing appeals under this Part, there shall be a
panel to be known as the Securities and Futures Appeals Panel.
(2) The Panel shall consist of the following members appointed by the
Governor-(a) a chairman and a deputy chairman (not being directors or
employees of the Commission) each of whom shall be a barrister qualified
to practise as such or a solicitor qualified to act as such under the
Legal Practitioners Ordinance (Cap. 159); and (Amended 87 of 1992 s. 3)
(b) not less than 5 but not more than 9 members who are not directors or
employees of the Commission. (Replaced 87 of 1992 s. 3)
(c) (Repealed 87 of 1992 s. 3)
(3) A member of the Panel shall hold office for such period as the
Governor may determine and may resign his office at any time by letter
sent to the Governor. (4) If the office of chairman of the Panel is
vacant or the chairman of the Panel is unable to act as chairman of the
Panel due to illness or other incapacity or is absent from Hong Kong, the
deputy chairman of the Panel shall act as chairman in his place.
19. Appeals (registration, forfeiture and notices)
(1) Where-
(a) an application of a person for registration under Part VI of the
Securities Ordinance (Cap. 333) is refused; or
(b) an application of a person for registration under Part VI of that
Ordinance is granted subject to conditions with which he is dissatisfied;
or
(c) the deposit of a registered dealer is forfeited under section 52 (2)
(c) of that Ordinance; or
(d) conditions are attached or amended under section 53A of that Ordinance
and the registered person concerned is dissatisfied with the conditions
or, as may be appropriate, the amendment; or
(e) the registration of any registered person is revoked or suspended
under section 55 or 56 of that Ordinance,
subject to section 21, the person or dealer may appeal to the Panel
against the refusal, conditions, forfeiture, revocation or suspension, as
the case may be. (2) Where-
(a) a certificate of registration is issued by the Commission under
section 30 (2) of the Commodities Trading Ordinance (Cap. 250) subject to
conditions; or (b) the Commission refuses to register an applicant under
section 31 or 32 of that Ordinance; or
(c) a deposit is transferred or forfeited by the Commission under section
33 of that Ordinance; or
(d) conditions are attached or amended under section 33A of that Ordinance
and the registered person concerned is dissatisfied with the conditions
or, as may be appropriate, the amendment; or
(e) the registration of a registered person is revoked or suspended by the
Commission under section 35 or 36 of that Ordinance,
subject to subsection (4) and section 21, a person in relation to whom
such conditions are imposed, the applicant whose application is so
refused, any person aggrieved by the transfer or forfeiture or the
registered person whose registration is so revoked or suspended, as the
case may be, may appeal in respect thereof to the Panel. (3) A person
upon whom a notice referred to in section 44 is served by the Commission
under Part V may appeal to the Panel.
(4) An appeal under this section against the attachment or amendment of a
condition referred to in subsection (1) (d) or (2) (d) shall not affect
the coming into force of the condition to which the appeal relates.
20. Hearing of appeals by tribunal
(1) Where a person appeals to the Panel under section 19, the chairman of
the Panel shall, as soon as may be, appoint a tribunal consisting of 3
members of the Panel, who shall be the chairman of the Panel or the deputy
chairman, and 2 members appointed under section 18 (2) (b), to determine
the appeal. (Amended 87 of 1992 s. 4) (2) The chairman of the Panel or the
deputy chairman of the Panel, when a member of a tribunal, shall preside
at the hearing of an appeal by the tribunal.
(3) Subject to section 21, the Panel shall regulate the procedure for the
hearing of appeals under this Part.
21. Procedure for appeals
(1) Subject to section 20 and this section, the Governor in Council may
make rules regulating the procedure and proceedings of a tribunal and
providing for the payment of remuneration and allowances to the members of
a tribunal.
(2) Until rules are made under subsection (1) the rules made under section
45 of the Securities Ordinance (Cap. 333) and in force immediately before
the commencement of this Part shall apply, with the necessary
modifications and subject to this section, to appeals to the Panel under
this Part and, for that purpose, shall be deemed to have been made under
that subsection.
(3) (a) An appeal shall be made to the Panel within 30 days beginning on
the day on which written notification of the decision to which the appeal
relates is served on the appellant or, in the case of an appeal relating
to a notice referred to in section 44, the day on which the notice is
served on the appellant.
(b) An appeal under this section shall be heard and determined as soon as
reasonably practicable.
(4) Subject to section 44 (2), a decision in respect of which an appeal
may be made to the Panel other than a decision to impose conditions
referred to in section 19 (1) (b) or (d) or (2) (a) or (d) shall not come
into operation until the time for making the appeal has expired or, where
an appeal is made, the appeal is determined or withdrawn. (5) For the
purpose of the hearing of an appeal under this Part-
(a) the appellant and the Commission shall be entitled to be heard either
in person or through counsel or solicitor and if the appellant is a
company, through any of its directors or employees or if a partnership
through any of the partners or, with the leave of the tribunal hearing the
appeal, through any other person;
(b) the tribunal hearing the appeal may-
(i) receive such evidence as it considers relevant, whether it would be
admissible in a court or not;
(ii) require evidence to be given on oath or affirmation and orally or in
writing; (iii) require any record or other document specified by it and
relating to the subject-matter of the appeal to be produced by the
appellant or the Commission; (c) the tribunal hearing the appeal may be
notice in writing signed by the member presiding and served on the person
to whom it is addressed, require that person to attend and give evidence
before it at the hearing of the appeal, and to produce such record or
other document in that person's custody or under his control relating to
the subject-matter of the appeal as may be specified in the notice;
(d) the member presiding at the hearing of the appeal may administer an
oath or affirmation to any person.
(6) Without affecting the generality of section 56 (2), a tribunal and its
members, and witnesses, counsel and any solicitor, and any other person
who is a party to or who otherwise has an interest in the proceedings
shall have the same privileges and immunities in respect of the hearing of
an appeal under this Part as they would have in proceedings before the
High Court.
(7) A tribunal hearing an appeal under this Part may confirm, vary or
reverse the decision under appeal and every decision of a tribunal shall
contain a statement of the reasons for the decision.
(8) Subject to section 22, the determination of an appeal by a tribunal
hearing an appeal under this Part or any order as to costs made by a
tribunal shall be final and shall not be appealable.
(9) (a) A tribunal hearing an appeal under this Part may award costs to
any party to the appeal, and costs so awarded shall be recoverable as a
civil debt.
(b) A tribunal may order any party to an appeal to pay, in accordance with
rules made under this section by the Governor in Council, the costs and
expenses incurred by the tribunal in hearing and determining the appeal
and the amount of such costs and expenses shall be determined by the
tribunal in accordance with such rules, and any sum so ordered to be paid
shall be recoverable by the person to whom they are payable under such
rules as a civil debt.
(10) Any person who, without reasonable excuse, refuses or fails-
(a) to attend and give evidence when required to do so by a tribunal
hearing an appeal under this Part; or
(b) to answer truthfully and fully questions put to him by a member of
such tribunal; or (c) to produce any record or other document which he is
required by such tribunal to produce,
commits an offence.
22. Case stated
(1) The tribunal hearing an appeal under this Part may by way of a case
stated refer to the Court of Appeal, for its opinion thereon, any question
of law relating to the appeal.
(2) A case may be stated under this section by a tribunal either of its
own motion or on the application in accordance with subsection (4) of any
party to the relevant appeal. (3) (a) A case stated under this section by
a tribunal of its own motion shall be stated before the tribunal
determines the relevant appeal and be signed by the person presiding at
the hearing of such appeal.
(b) Where a case is stated under this section by a tribunal of its own
motion, the tribunal shall not determine the relevant appeal until after
the opinion of the Court of Appeal on the case has been given.
(4) The following provisions shall apply to any application under
subsection (2)-(a) the application shall be in writing and, subject to
paragraph (b), shall be sent to the chairman of the Panel after the
determination of the relevant appeal and be accompanied by the fee
specified in an order made for the purposes of this subsection by the
Governor in Council;
(b) the application shall be received by the chairman of the Panel before
the expiration of the period of 14 days beginning on the day on which such
appeal is determined; (c) the party making the application shall at the
same time send a copy thereof to any other party to such appeal;
(d) on receipt of the application the chairman of the Panel shall
reconvene the tribunal by which such appeal was determined; and
(e) the tribunal shall, as soon as may be, consider the application and
may allow or refuse it, and its decision shall be final and shall not be
appealable.
(5) (a) A case stated under this section shall include a statement of
facts and, where appropriate, the decision of the tribunal appointed
under section 20 on the relevant appeal and shall be signed by the person
presiding at the hearing of such appeal.
(b) The person by whom it is signed shall, as soon as may be, transmit
a case stated under this section to the Court of Appeal.
(6) The Court of Appeal may require the tribunal by which a case is stated
under this section to amend the case in such manner as the court shall
specify.
(7) Where the Court of Appeal determines a case stated under this section
it shall cause a copy of the case, together with a copy of its opinion
thereon, to be sent to the person by whom the case was signed and that
person shall, where appropriate, reconvene the relevant tribunal which,
when reconvened, shall determine the relevant appeal or, as may be
appropriate, revise its previous determination having regard (in either
case) to the opinion of the court.
PART IV ADDITIONAL REGISTRATION REQUIREMENTS
23. Applications under section 51 of Securities Ordinance or section 30 of
Commodities Trading Ordinance: supplementary provisions
(1) The Commission shall refuse-
(a) to issue a certificate of registration under section 51 of the
Securities Ordinance (Cap. 333); or
(b) to register a person under section 30 of the Commodities Trading
Ordinance (Cap. 250),
if the applicant for registration does not satisfy the Commission that he
is a fit and proper person to be so registered.
(2) In considering whether an applicant for registration referred to in
subsection (1) is a fit and proper person to be so registered the
Commission shall, in addition to any other matter that the Commission may
think relevant, have regard to the matters set out in subsection (3) in
respect of-
(a) the applicant if he is an individual;
(b) where the applicant is a company, each of its directors and officers;
or (c) where the applicant is a partnership, each of the partners.
(3) The matters referred to in subsection (2) are in the case of an
applicant and any other person to whom that subsection applies-
(a) his financial status;
(b) his educational or other qualifications or experience having regard to
the nature of the functions which, if the application is allowed, he will
perform;
(c) his ability to perform such functions efficiently, honestly and
fairly; and (d) his reputation, character, financial integrity and
reliability.
(4) For the purposes of this section, the Commission may have regard to
any information in its possession whether furnished by the applicant or
not.
(5) For the purposes of subsection (2), the Commission may take into
account any decision relating to authorization made in relation to the
applicant by the Monetary Authority or the Insurance Authority or by any
other authority (whether in Hong Kong or elsewhere) which in the opinion
of the Commission performs any function similar to a function conferred on
the Commission by this section, section 51 of the Securities Ordinance
(Cap. 333) or section 30 of the Commodities Trading Ordinance (Cap. 250).
(Amended 82 of 1992 s. 7)
(6) For the purposes of subsections (2) and (3), the Commission may-
(a) take into account any matter relating to-
(i) any person who is or is to be employed by, or associated with, the
applicant for the purposes of the proposed business to which the
application relates;
(ii) any person who will be acting as a representative in relation to such
business; (iii) where the applicant is a company, any substantial
shareholder, director or officer of the company, any other company in the
same group of companies or to any director or officer of any such other
company; and
(iv) where the applicant is a partnership or a firm, any of the partners;
and (b) have regard to any other business which the applicant carries on
or proposes to carry on.
(7) This section shall not be construed as in any way affecting the power
of refusal conferred on the Commission by section 53 (1) of the Securities
Ordinance (Cap. 333) or section 32 (1) of the Commodities Trading
Ordinance (Cap. 250).
(8) In subsection (6) "substantial shareholder", in relation to a company,
means a person who has an interest in shares in the company-
(a) the nominal value of which is equal to more than 10% of the issued
share capital of the company; or
(b) which entitle the person to exercise or control the exercise of more
than 10% of the voting power at any general meeting of the company.
24. Applicant under Securities Ordinance or Commodities Trading Ordinance
to furnish information to Commission
An applicant under section 51 of the Securities Ordinance (Cap. 333) or
section 30 of the Commodities Trading Ordinance (Cap. 250) shall furnish
to the Commission at the time of the application such information as may
reasonably be required by the Commission-(a) regarding the services which,
if the application is allowed, the applicant will hold himself out as
being able to provide;
(b) regarding the business which the applicant proposes to carry on and to
which the application relates, or relating to any person whom the
applicant intends or proposes to employ in such business or any person
with whom the applicant intends to be associated in the course of carrying
on such business; and
(c) to enable the Commission to take into account the matters referred to
in section 23 (6) (a) and (b).
25. Certificates of registration to continue in force
(1) A person who immediately before the establishment day was registered,
or who on or after that day becomes registered, under section 51 of the
Securities Ordinance (Cap. 333) or section 30 of the Commodities Trading
Ordinance (Cap. 250) shall continue to be so registered; but this section
shall not be construed as affecting the power of the Commission to suspend
or revoke the person's registration under section 55 or 56 of the
Securities Ordinance (Cap. 333) or section 35 or 36 of the Commodities
Trading Ordinance (Cap. 250).
(2)(a) Where an application for renewal of registration under Part VI of
the Securities Ordinance (Cap. 333) or section 34 of the Commodities
Trading Ordinance (Cap. 250) is made before the establishment day and is
not determined before that day, notwithstanding anything contained in this
Ordinance the application shall be taken over and determined by the
Commission, and in case the application is allowed the renewal shall be
deemed to take effect immediately before the establishment day.
(b) For the purposes of paragraph (a), and only for those purposes,
section 34 of the Commodities Trading Ordinance (Cap. 250) and the
provisions of the Securities Ordinance (Cap. 333) which are relevant shall
be regarded as remaining in force, and that section and those provisions
shall for those purposes be construed as if any reference therein to the
Commissioner were a reference to the Commission.
26. Section 23 (2) and (3) to apply to inquiries under section 56 of
Securities Ordinance or section 36 of Commodities Trading Ordinance
Section 23 (2) and (3) shall with the necessary modifications apply when
the Commission conducts an inquiry under section 56 of the Securities
Ordinance (Cap. 333) or section 36 of the Commodities Trading Ordinance
(Cap. 250), and for that purpose the references in section 23 (20 and (3)
to the applicant shall be construed as references to the person to whom
the inquiry relates.
27. Registered persons to notify Commission where records etc. kept
(1) (a) Every person who on the commencement of this section is a person
to whom this section applies or who before such commencement applied to be
registered under the relevant Ordinances and who becomes a person to whom
this section applies shall-(i) if immediately before such commencement he
was a registered person described in subsection (10), within the period of
30 days beginning on such commencement; (ii) if he becomes so registered
on or after such commencement, within the period of 30 days beginning on
the date of his registration, notify the Commission in writing of the
location of the premises at which any record or other document relating to
the business in respect of which he is registered is, or is to be, kept by
him and in case every such record or other document is not, or is not to
be, kept at a single premises he shall so notify the Commission of the
location of each of the premises at which any such document or record is,
or is to be, so kept.
(b) Every person who applies to be a registered person and who, if his
application is allowed, will be a person to whom this section applies
shall in his application specify the location of the premises at which any
record or other document relating to the business in respect of which he
applies to be registered is to be kept by him and in case every such
record or other document is not to be kept at a single premises, he shall
so specify the location of each of the premises at which any such document
or other record is to be so kept.
(2) A person to whom this section applies shall give to the Commission not
less than 30 days' notice in writing of any intended change in the
location of premises at which any record or other document referred to in
subsection (1) is to be kept by him. (Amended 63 of 1990 s. 2)
(3) Every person referred to in subsection (1) or (2) shall, as regards
any premises referred to in his notification or application, state whether
or not those premises are used or are to be used partly or wholly for
residential purposes.
(4) A person to whom this section applies shall not keep any record or
other document relating to the business in respect of which he is
registered at-
(a) any premises the location of which has not been notified to the
Commission under this section; or
(b) any premises which are not regarded by the Commission as suitable:
Provided that this subsection shall not operate as regards a person to
whom subsection (1) (a) applies until the period mentioned in subparagraph
(i) or, as may be appropriate, subparagraph (ii) of that subsection has
expired.
(5) References to a record or other document in subsections (1), (2) and
(4) include references to any record or other document which a registered
person is required to keep under the relevant Ordinances, and shall also
include all data equipment used in connection therewith.
(6) The Commission may require any registered person or applicant for
registration who notifies a location of premises under this section to
notify it in respect of other premises for the purpose of complying with
this section if, in the opinion of the Commission, the first-mentioned
premises are unsuitable.
(7) (a) Where premises are, or are to be, used partly or wholly for
residential purposes, the Commission shall not regard the premises as
being suitable unless it is satisfied by the registered person or
applicant concerned that the use by him of the premises to keep a record
or other document referred to in subsection (1) will not affect the
exercise in relation to the record or other document of any power under
Part V.
(b) Where the Commission decides that premises referred to in paragraph
(a) are suitable, it shall inform the registered person or applicant
concerned of its decision by letter and the letter shall also state that
the premises may be entered pursuant to section 30 or 36.
(c) Where the Commission decides that premises are unsuitable, it shall
inform the registered person or applicant concerned of its decision by
letter.
(8) The Commission shall maintain a register and shall record therein the
location of any premises notified to it in accordance with subsection (1)
or (2). (9) In this section, "data equipment" means any equipment which-
(a) automatically processes information;
(b) automatically records or stores information;
(c) can be used to cause information to be automatically recorded, stored
or otherwise processed on other equipment (wherever situated);
(d) can be used to retrieve information, whether the information is
recorded or stored in the equipment itself or in other equipment (wherever
situated).
(10) (a) This section applies to any person who is a registered person and
who is also-
(i) a dealer but who is not a dealing director; or
(ii) a dealing partnership, investment adviser, investment advisers'
partnership or commodity trading adviser.
(b) In this subsection-
"commodity trading adviser" has the meaning assigned to it by section 2
(1) of the Commodities Trading Ordinance (Cap. 250);
"dealer" means any person who is a dealer within the meaning of section 2
(1) of the Commodities Trading Ordinance (Cap. 250) or section 2 (1) of
the Securities Ordinance (Cap. 333) but who, in either case, is not a
director or employee accredited to, or a partner in, a corporation or firm
which is itself a dealer;
"dealing director", "dealing partnership", "investment adviser" and
"investment advisers' partnership" have the meanings assigned to them,
respectively, by section 2 (1) of the Securities Ordinance (Cap. 333).
28. Financial resources rules
(1) The Commission may, after consultation with the Financial Secretary,
make rules requiring registered persons to have and maintain, in respect
of the businesses as regards which they are registered, such financial
resources as are required by the rules.
(2) Financial resources rules may-
(a) impose requirements which are absolute or which are to vary from time
to time by reference to factors which either are specified in, or are to
be determined in accordance with, the rules;
(b) impose requirements which take account of any business carried on by
the person concerned in conjunction with, or in addition to, the business
carried on by him and referred to in subsection (1);
(c) make provision as to the assets, liabilities and other matters to be
taken into account in determining a person's financial resources for the
purposes of the rules and the extent to which, and the manner in which,
they are to be taken into account for that purpose; (Amended 87 of 1992 s.
5)
(d) impose requirements which are different for different classes or
descriptions of registered persons as specified in the rules. (Added 87 of
1992 s. 5)
(3) Financial resources rules may provide that the rules or any provision
thereof shall not apply, or shall apply with such modifications or only in
such circumstances as shall be specified in the rules, to persons who have
and maintain financial resources (in Hong Kong or elsewhere) in accordance
with an authorization of an authority (in Hong Kong or elsewhere) which in
the opinion of the Commission performs any function which is similar to a
function conferred on the Commission by this section.
(3A) Financial resources rules may require registered persons to submit to
the Commission-
(a) quarterly or other periodical returns containing information about
their financial resources, in such form and at such intervals as may be
prescribed by the rules; (b) written notice of such changes in
circumstances relating to their financial resources as may be prescribed
by the rules, and of reasons for the changes. (Added 87 of 1992 s. 5)
(4) (a) On the commencement of the rules first made under this section,
section 65B of the Securities Ordinance (Cap. 333) shall cease to have
effect.
(b) On and from the commencement referred to in paragraph (a), sections
65C and 65D of the Securities Ordinance (Cap. 333) shall each be construed
and have effect as if-(i) for each of the references in those sections to
section 65B there were substituted a reference to financial resources
rules;
(ii) for each of the references in section 65C (1) to "registered dealer"
and "registered dealing partnership" there were substituted the references
to "person registered under this Ordinance" and "partnership registered
under this Ordinance" respectively;
(iii) for the reference in section 65C (1) (b) to "dealing in securities",
there were substituted a reference to "carrying on the business for which
he is registered"; (iv) for each of the references in sections 65C (2) and
65D (1) to "registered dealer or registered dealing partnership", there
were substituted a reference to "person registered under this Ordinance".
(Amended 87 of 1992 s. 5)
(c) On and from the commencement referred to in paragraph (a), sections 55
(2A), 83 (4A), 89 and 90 of the Securities Ordinance (Cap. 333) shall each
be construed and have effect as if for each of the references in those
sections to section 65B there were substituted a reference to financial
resources rules. (Added 87 of 1992 s. 5) (5) Section 34 of the
Interpretation and General Clauses Ordinance (Cap. 1) applies to financial
resources rules.
29. Modification of financial resources rules in particular cases
(1) The Commission may, on the application of any person to whom financial
resources rules apply, give a direction in writing altering the
requirements of the rules so as to adapt them, subject to such conditions
as may be specified in the direction, to the circumstances of that person
or of any particular kind of business carried on, or to be carried on, by
him.
(2) Where a direction is given under subsection (1)-
(a) thereupon the financial resources rules shall have effect in relation
to the person to whom the direction relates in conformity with the
direction and such direction shall take effect on the publication of the
relevant notice pursuant to paragraph (b); and (b) the Commission shall
cause a notice stating that the direction has been given to be published
in the Gazette.
(3) The Commission shall not give a direction under subsection (1) unless
it appears to it that-
(a) compliance with the requirements in question would be unduly
burdensome for the applicant having regard to the benefit which compliance
would confer on the investing public; and
(b) the direction, if given in the particular case, would not result in
any undue risk to the investing public.
(4) (a) A direction under subsection (1) shall continue in force until
withdrawn by the Commission, and where the Commission proposes to withdraw
any such direction it shall give at least 7 days' notice in writing of its
intention to the person concerned and such withdrawal shall take effect on
the publication of the relevant notice pursuant to paragraph (b).
(b) Where the Commission withdraws a direction under paragraph (a), it
shall cause a notice of the withdrawal to be published in the Gazette.
PART V REGULATION OF REGISTERED PERSONS' BUSINESS, ETC.
30. Supervision
(1) For the purpose of ascertaining whether a person who is, or at any
time has been, a registered person is complying or has complied with any
provision of or any requirement under the relevant Ordinances or the terms
and conditions of any certificate of registration issued to him, a person
("an authorized person") authorized in writing for the purposes of this
section by the Commission may at all reasonable times-(a) enter the
premises of the registered person notified by him to the Commission under
section 27; and
(b) inspect and make copies of any record or other document, or part
thereof, or make or take any abstract of or extract from any record or
other document relating in either case to the business to which such
certificate of registration applies. (2) For the purpose of enabling an
authorized person to exercise his powers under subsection (1) (b), he may
require the registered person or any other person whom he reasonably
believes is in possession of or has under his control any record or other
document mentioned in that subsection to produce it to him.
(3) For the purpose of an inspection under subsection (1) (b), the
registered person or other person mentioned in subsection (2) shall afford
an authorized person access to such records or other documents as may
reasonably be required for the inspection, and shall produce to the
authorized person such records or other documents as he may reasonably
require.
(4) Where-
(a) a copy of any record or other document is supplied by a registered
person in compliance with a requirement made under this section; or
(b) a copy of any record or other document is made in the exercise of a
power conferred by this section and a photocopying machine or other
facility or a registered person is used to make the copy,
the Commission shall reimburse the photocopying or other expenses which,
in the opinion of the Commission, have been reasonably incurred by the
registered person in making the copy.
(5) Nothing in this section shall be construed as requiring an institution
authorized to carry on banking business or the business of taking deposits
under the Banking Ordinance (Cap. 155) to produce any record or other
document relating to the affairs of a customer to an authorized person
unless the Commission is satisfied that such production is necessary for
the purposes of this section and certifies in writing that that is the
case; and where the Commission so certifies in respect of any such
institution, such institution shall comply with any requirement under
subsection (2) or (3) that applies in its case.
(6) Any person who, without reasonable excuse, contravenes subsection (3)
commits an offence.
(7) Any person who, without reasonable excuse, in purported compliance
with a requirement made under this section, produces a record or other
document which he knows to be false or misleading in a material particular
commits an offence. (8) An authorized person shall be furnished by the
Commission with a copy of his authorization, and he shall, when entering
any premises under this section, produce the copy of the authorization for
inspection by any person who is present and who is affected by the
exercise of the power.
31. Information relating to transactions
(1) The Commission or any person authorized in writing by the Commission
for the purposes of this section may require-
(a) a person registered as the holder of any securities or futures
contracts; or (b) a person reasonably believed by the Commission or the
person so authorized to be the holder of any securities or futures
contracts or to hold any interest in property investment arrangements; or
(c) a person reasonably believed by the Commission or the person so
authorized to hold any securities or futures contracts or to have an
interest in property investment arrangements, as beneficial owner; or
(d) a person reasonably believed by the Commission or the person so
authorized to hold, to have acquired or disposed of, purchased or sold,
any securities, futures contracts or interest in property investment
arrangements, or any interest therein, whether directly or through a
nominee, trustee, or agent, and whether as beneficial owner nominee,
trustee, agent or otherwise; or
(e) a registered person or an exempt dealer,
in relation to any acquisition, disposal, purchase, sale or holding of
securities, futures contracts or interest in property investment
arrangements to disclose to it or him the name (including any aliases),
address and occupation of the person (or other particulars that are
capable of establishing the identity of the person) from, to or through
whom, or on whose behalf, the securities or futures contracts or interest
in property investment arrangements were acquired, disposed of, purchased,
sold or were or are held, together with the quantity of securities or
futures contracts or interests in property investment arrangements so
acquired, disposed of, purchased, sold or held, and the instructions given
to or by such last-mentioned person in respect thereof. (2) For the
purpose of enabling this section to have effect, every investment adviser
or commodity trading adviser and registered person who is a dealer within
the meaning of section 27 (10) shall keep, in such manner and form as may
be specified in rules made for the purposes of this section by the
Commission (which rules the Commission is hereby authorized to make), any
record or other document as may be so specified. (3) Where a requirement
is made under subsection (1), a person who-
(a) without reasonable excuse fails to disclose to the Commission
information required to be disclosed under subsection (1) and which is in
his possession or under his control;
(b) furnishes to the Commission in purported compliance with the
requirement information which he knows to be false or misleading in a
material particular; or
(c) fails to comply with any provision of rules made under this section
which applies to him, commits an offence.
32. Certification to High Court relating to non-compliance under section
30 or 31 (1)
If a person mentioned in section 30 or 31, without reasonable excuse,
fails to produce any record or other document or disclose information upon
being required to do so under that section, the Commission may certify the
failure to the High Court and the High Court may thereupon inquire into
the case and-
(a) order such person to comply with the requirement within such period as
may be fixed by the High Court; or
(b) if the High Court is satisfied that such person has failed without
reasonable excuse to comply with such requirement, punish him in the same
manner as if he had been guilty of contempt of court.
(2) A person shall not be punished under subsection (1) and section 30 or
31 in respect of the same failure.
33. Investigations
(1) Where the Commission has reason to believe that-
(a) an offence under any of the relevant Ordinances may have been
committed; or (b) a person may have committed a defalcation or other
breach of trust, fraud or misfeasance-
(i) in dealing in securities or trading in futures contracts;
(ii) in the management of investment in securities or in futures
contracts; (iii) in making property investment arrangements; or
(iv) in giving advice as regards the acquisition, disposal, purchase or
sale, or otherwise investing in, any security or futures contract or as
regards any property investment arrangements; or
(c) insider dealing for the purposes of the Securities (Insider Dealing)
Ordinance (Cap. 395) may have taken place; or (Amended 62 of 1990 s. 43)
(d) the manner in which a person has engaged or is engaging in any of the
following activities referred to in paragraph (b) namely, the dealing or
trading mentioned in subparagraph (i) thereof, the management mentioned in
subparagraph (ii) thereof, the management mentioned in subparagraph (ii)
thereof, the making of property investment arrangements or the giving of
advice described in subparagraph (iv) thereof is not in the interest of
the investing public or the public interest, the Commission may in writing
direct one or more of its employees or, with the consent of the Financial
Secretary, appoint one or more other persons to be an investigator ("the
investigator") to investigate any matter referred to in paragraphs (a) to
(d) and report to the Commission thereon.
(2) Where any matter is investigated under subsection (1) in relation to
any person, that person is, for the purposes of this section, referred to
as "the person under investigation".
(3) Any costs or expenses incurred by a person (other than an employee of
the Commission) acting as the investigator under this section shall be
paid out of moneys provided by the Legislative Council.
(4) The person under investigation or any person who is reasonably
believed or suspected by the investigator to have in his possession or
under his control any record or other document which contains, or which is
likely to contain, in formation relevant to an investigation under this
section, or who is so believed or suspected of otherwise having such
information in his possession or under his control, shall-
(a) produce to the investigator, within such time and at such place as he
may reasonably require, any record or other document specified by the
investigator which is, or may be, relevant to the investigation, and which
is in his possession or under his control; (b) if so required by the
investigator, give to him such explanation or further particulars in
respect of a record or other document produced in compliance with a
requirement under paragraph (a) as the investigator shall specify;
(c) attend before the investigator at such time and place as he may
require in writing, and answer truthfully and to the best of his ability
such questions relating to the matters under investigation as the
investigator may put to him; and
(d) give to the investigator all assistance in connection with the
investigation which he is reasonably able to give.
(5) A barrister or solicitor acting for the person under investigation
may-(a) attend an examination of that person; and
(b) to the extent that the investigator shall reasonably permit-
(i) examine that person; and
(ii) address the investigator,
in relation to matters in respect of which the investigator has questioned
that person. (6) A person shall be obliged to answer questions put to him
under this section by the investigator, but if the answers might tend to
incriminate him, and he so claims before answering the question, neither
the question nor the answer shall be admissible in evidence against him in
criminal proceedings other than proceedings for an offence under
subsection (12) or section 36 of the Crimes Ordinance (Cap. 200), or for
perjury, in respect of the answer but shall be admissible for all the
purposes of the Securities (Insider Dealing) Ordinance (Cap. 395); the
investigator shall, before asking any question under this section, inform
the person concerned of the limitation imposed by this subsection in
respect of the admissibility in evidence of the question and any answer
given. (Amended 62 of 1990 s. 43)
(7) The investigator shall be furnished by the Commission with a copy of
the direction or appointment under subsection (1) and shall, before
exercising any power under this section, produce the copy to the person
concerned for his inspection. (8) Where any explanation, particulars,
answer or statement is or are made or given under subsection (4) to the
investigator, he may further require, in writing, the person making or
giving the same-
(a) to verify the explanation, particulars, answer or statement by
statutory declaration (Which may be taken and received by the
investigator); or
(b) in case such explanation, particulars, answer or statement is or are
not made or given in accordance with a requirement under subsection (4) to
verify by a statutory declaration (which may be so taken and received)
that he was unable to comply or, as the case may be, fully to comply, with
that requirement because the matter which he failed to furnish was not
within his knowledge or was neither in his possession nor under his
control,
and where a requirement under this subsection is made, the person to whom
it is made shall comply with the requirement within such reasonable period
as is specified in the requirement.
(9) The investigator may, and if so directed by the Commission shall, make
interim reports to the Commission, and on the conclusion of his
investigation shall make a final report to the Commission.
(10) Notwithstanding section 59, the Commission may, with the consent of
the Attorney General, cause a report under this section to be published.
(11) Nothing in this section shall be construed as requiring an
institution authorized to carry on banking business or the business of
taking deposits under the Banking Ordinance (Cap. 155) to disclose any
information or produce any record or other document relating to the
affairs of a customer to the investigator unless-
(a) the customer is a person whom the investigator has reason to believe
may be able to give information relevant to the investigation; and
(b) the Commission is satisfied that the disclosure or production is
necessary for the purposes of the investigation and certifies in writing
that that is the case, and, where the conditions in paragraphs (a) and (b)
are met in respect of any such institution, such institution shall comply
with any provision of subsection (4) or (8) that applies in its case.
(12) Any person who-
(a) without reasonable excuse fails to produce any record or other
document which he is required to produce under subsection (4) (a);
(b) without reasonable excuse fails to comply with any requirement under
subsection (4) (b);
(c) without reasonable excuse fails to comply with a requirement under
subsection (4) (c) to attend before the investigator;
(d) without reasonable excuse fails to answer any question put to him by
the investigator under subsection (4) (c), or in answering such a question
says anything which he knows to be false or misleading in a material
particular or who in so answering recklessly makes a false statement;
(e) without reasonable excuse fails to comply with subsection (4) (d); (f)
without reasonable excuse fails to comply with a requirement under
subsection (8), or fails to do so within the period specified therein,
commits an offence.
(13) If any person, without reasonable excuse, fails to do anything which
he is required to do under subsection (4), the investigator may certify
the failure to the High Court and the High Court may thereupon inquire
into the case and-
(a) order such person to comply with the requirement within such period as
may be fixed by the High Court; or
(b) if the High Court is satisfied that such person has failed without
reasonable excuse to comply with such requirement, punish him in the same
manner as if he had been guilty of contempt of court.
(14) A person shall not be punished under subsections (12) and (13) in
respect of the same failure.
(15) (a) Where the person under investigation or any other person is
convicted by a court or magistrate on a prosecution instituted as a result
of an investigation under this section, the court or magistrate may order
him to pay to the Commission the whole or part of the costs or expenses of
the investigation.
(b) Where an amount is paid to the Commission pursuant to an order under
this subsection in respect of the costs or expenses of an investigation
and the costs or expenses of that investigation are paid out of moneys
provided by the Legislative Council, the Commission shall pay to the
Financial Secretary an amount equal to the amount of those moneys or, if
the amount paid pursuant to the order is less than the amount of those
moneys, an amount equal to that so paid.
34. Returns
(1) The Commission may make rules requiring any registered person to whom
the rules apply to make annual returns to the Commission.
(2) Rules made under this section may-
(a) apply to registered persons generally or to registered persons of a
particular class or description specified in the rules, and different
rules may be made in respect of different classes or descriptions of
registered persons;
(b) specify the form of the return and the particulars it is to contain
and the persons by whom such returns are to be made; and
(c) specify the time by which a return required by the rules is to be
received by the Commission.
35. Production of computerized information
Where any information or matter relevant to an inspection or investigation
under section 30 or 33 is recorded otherwise than in a legible form, the
powers conferred by those sections and section 36 to require the
production of any record or other document for the purposes of any
provision of those sections shall include the power to require the
production of a reproduction of the recording of any such information or
matter or of the relevant part of it in a legible form.
36. Magistrate's warrant
(1) If a magistrate is satisfied on information on oath laid by the
chairman or other director of the Commission, or by an employee of the
Commission authorized by the Commission for the purposes of this section,
that there are reasonable grounds for suspecting that there is, or is
likely to be, on premises specified in the information any record or other
document which is relevant to an inspection under section 30 or an
investigation under section 33, the magistrate may issue a warrant
authorizing any such person ("specified person") and any police officer,
and such other persons as may be necessary to assist in the execution of
the warrant-
(a) to enter the premises so specified, if necessary by force, at any time
within the period of 7 days beginning on the date of the warrant; and
(b) to search for, seize and remove any record or other document which any
such specified person or police officer has reasonable cause to believe
may be required for the purposes of the inspection or investigation.
(2) A specified person or a police officer or other persons authorized by
a warrant under this section may-
(a) require any person on the premises specified in the warrant whom he
reasonably believes to be employed in connection with a business which is,
or which has been, conducted on such premises to produce for examination
any record or other document which such specified person or police officer
has reasonable cause to believe may be required for the purposes of the
inspection or investigation and which is in his possession or under his
control;
(b) prohibit any person mentioned in paragraph (a) from-
(i) removing from the premises so specified any record or other document
produced pursuant to a requirement under paragraph (a);
(ii) erasing, adding to or otherwise altering any entry or other
particular contained in, or otherwise interfering in any manner whatsoever
with, or causing or permitting any other person to interfere with, any
such record or other document;
(c) take, in relation to any such record or other document, any other step
which may appear necessary for preserving it and preventing interference
with it. (3) Any record or other document removed under this section may
be retained for any period not exceeding the period of 6 months beginning
on the day of its removal or, where the record or other document is
required in connection with any criminal proceedings, for such longer
period as may be necessary for the purposes of those proceedings.
(4) Where a person removes a record or other document under this section
he shall, as soon as reasonably practicable, give a receipt for it, and he
may permit any person who would be entitled to inspect it but for such
removal to inspect the record or other document at any reasonable time and
to make copies of and take extracts from it. (5) Section 102 of the
Criminal Procedure Ordinance (Cap. 221) shall apply to property which has
come into the possession of the Commission under this section as it
applies to property which has come into the possession of the police.
(6) A person who-
(a) without reasonable excuse fails to comply with any requirement or
prohibition under subsection (2); or
(b) obstructs any person exercising a power conferred by subsection (2),
commits an offence.
37. Destruction etc. of documents
A person who destroys, falsifies, conceals or otherwise disposes of, or
causes or permits the destruction, falsification, concealment or disposal
of, any record or other document which is relevant to an inspection under
section 30 or an investigation under section 33 commits an offence unless
he proves that he had no intention of concealing from the authorized
person or investigator facts capable of being disclosed by the record or
other document.
38. Powers of intervention
(1) Any power conferred on the Commission by section 39, 40 or 41 may be
exercised in relation to any registered person if he is a registered
person to whom this section applies and if, and only if, it appears to the
Commission that-
(a) the exercise of the power is desirable in the interest of the
investing public; (b) the registered person is not a fit and proper person
(having regard, amongst other matters, to the matters specified in section
23 (3)) to carry on any one or more of the businesses in respect of which
he is registered under the Securities Ordinance (Cap. 333) or the
Commodities Trading Ordinance (Cap. 250), as the case may be, to the
extent to which he is carrying it on or proposes to carry it on; or
(c) the registered person has contravened or failed to comply with any
provision of or requirement under the relevant Ordinances or, in purported
compliance with any such provision, has furnished the Commission with
information which, in a material particular, is false, inaccurate or
misleading.
(2) The powers conferred on the Commission by section 39, 40 or 41 may be
exercised in relation to a person whose registration is suspended or
revoked under section 55 or 56 of the Securities Ordinance (Cap. 333) or
section 35 or 36 of the Commodities Trading Ordinance (Cap. 250) where an
appeal is made under section 19 or the time for making such an appeal has
not expired, and references in section 39, 40 or 41 to a registered person
shall be construed accordingly.
(3) The Commission shall not exercise any power conferred on it by section
39, 40 or 41 with respect to a registered person who is a member of an
Exchange Company or a clearing house unless the Commission has given
written notification of its intention to that Exchange Company or, as the
case may be, that clearing house.
(4) This section applies to any registered person who is a dealer, a
partner of a dealing partnership, an investment adviser, a commodity
trading adviser or a partner in an investment advisers' partnership; and
for the purposes of this subsection "dealer", "dealing partnership",
"investment adviser" "commodity trading adviser" and "investment advisers'
partnership" have the meanings assigned to them respectively by section 27
(10).
39. Restriction of business
(1) Subject to section 38, the Commission may by notice in writing-
(a) prohibit a registered person to whom section 38 applies from-
(i) entering into transactions of a class or description specified in the
notice or entering into them otherwise than in circumstances so specified
or to an extent so specified;
(ii) soliciting business from persons of a class or description so
specified or from persons other than persons of such a class or
description;
(iii) carrying on business as a registered person in a manner so
specified; (b) require such a registered person to carry on business in,
and only in, a manner so specified.
(2) A prohibition or requirement under this section may relate to either
or both of the following-
(a) transactions entered into in connection with or for the purposes of
the business in respect of which a registered person to whom section 38
applies is registered; (b) other business which is carried on by such a
registered person in connection with or for the purposes of such business.
40. Restriction on dealing with assets
Subject to section 38, the Commission may, as regards any assets whether
in Hong Kong or elsewhere and whether they are assets of a registered
person or not, by notice in writing-
(a) prohibit a registered person to whom section 38 applies from disposing
of such assets or prohibit him from dealing with them in a manner
specified in the notice; (b) require such a registered person to deal with
such assets in, and only in, a manner specified in the notice.
41. Maintenance of assets
(1) Subject to section 38, the Commission may by notice in writing require
a registered person to whom section 38 applies to maintain in Hong Kong
and in such other place outside Hong Kong as may be specified in the
notice, in such manner as will enable such person at any time freely to
transfer or otherwise dispose of them, assets of such value and of such
class or description as appear to the Commission to be desirable with a
view to ensuring that the person will be able to meet his liabilities in
respect of the business carried on by him as a registered person.
(2) The Commission may direct that for the purposes of any requirement
under this section assets of any specified class or description shall or
shall not be taken into account.
42. Provisions relating to notices under section 39, 40, 41 or 43
(1) A notice under section 39, 40 or 41 shall remain in force until it is
withdrawn by the Commission under section 43 by a further notice.
(2) The power under section 39,40 or 41 to impose, or under section 43 to
withdraw, substitute or vary, a prohibition or requirement shall be
exercisable by written notice served by the Commission on the person
concerned, and any such notice shall take effect at such time as is
specified in the notice or the time when it is served, whichever is the
later.
(3) A notice-
(a) imposing a prohibition or a requirement under section 39, 40 or 41; or
(b) under section 43 (1) substituting or varying such a prohibition or
requirement; or (c) under section 43 (2),
shall be accompanied by a statement in writing of the reasons why the
prohibition or requirement was imposed, substituted or varied, as the case
may be, or the relevant application was refused.
(4) Where the reasons stated in a notice to which subsection (3) applies
relate specifically to matters which-
(a) refer to a person who is identified in the notice but who is not a
person on or in respect of whom the relevant prohibition or requirement
was imposed; and (b) are, in the opinion of the Commission, prejudicial to
that person in any respect, the Commission shall, if possible, serve a
copy of the notice on that person. (5) The Commission may cause to be
published in the Gazette a prohibition or requirement imposed under
section 39,40 or 41 or a withdrawal, substitution or variation under
section 43 of any such prohibition or requirement and where any such
prohibition or requirement is so published, the Commission shall also
cause to be so published any subsequent withdrawal, substitution or
variation of the prohibition or requirement. (6) Any notice published
under subsection (5) may, if the Commission thinks fit, include a
statement of the reasons for which the relevant prohibition or requirement
was imposed, withdrawn, substituted or varied.
(7) (a) Nothing in sections 38 to 44 or any notice served under section
39, 40 or 41 shall render any contract unenforceable by any party thereto
if he proves that in entering into the contract he acted in good faith
and, as regards any notice so received, was unaware of the notice.
(b) Where by virtue of anything contained in a section or notice referred
to in paragraph (a) a person rescinds a contract, he shall restore to any
other party to the contract any money or other benefit received or
obtained by him under the contract from that party.
43. Withdrawal, substitution or variation of notices under section 39, 40
or 41 (1) Where a notice under section 39, 40 or 41 is in force, the
Commission may of its own volition, or on the application of the person on
whom the notice was served or any other person affected by the notice, by
notice in writing-
(a) withdraw the notice; or
(b) substitute another prohibition or requirement for, or vary, any
prohibition or requirement contained in the notice.
(2) If, on an application made by a person under subsection (1), the
Commission refuses to withdraw, substitute or vary a prohibition or
requirement imposed under section 39,40 or 41, the Commission shall serve
on that person a notice in writing of the refusal.
44. Appeals against notices under this Part
(1) Where the Commission issues a notice under section 39, 40, 41, 42 or
43, any person on whom such notice is served may, within the period
specified in section 21 (3), appeal to the Panel under section 19.
(2) An appeal referred to in subsection (1) shall not affect the coming
into force of any notice to which the appeal relates.
(3) A notice referred to in subsection (1) shall state that an appeal may
be made to the Panel against the notice by any person on whom the notice
is served, and specify the period within which such an appeal may be made.
45. Winding-up orders
(1) If, in the case of a company which may be wound up by the High Court
under the Companies Ordinance (Cap. 32), it appears to the Commission that
it is expedient in the public interest that the company should be wound
up, the Commission may, subject to subsection (2), present a petition for
it to be wound up under that Ordinance on the ground that it is just and
equitable that it should be so wound up.
(2) The Commission shall not present a petition under subsection (1) for
the winding up of any person that is a member of an Exchange Company or a
clearing house unless the Commission has given written notification of its
intention to that Exchange Company or, as the case may be, that clearing
house.
46. Receiving orders
(1) If it appears to the Commission that it is expedient in the public
interest to do so and subject to subsection (2) the Commission may present
a petition for a receiving order in accordance with the Bankruptcy
Ordinance (Cap. 6) against a registered person if the registered person
has committed an act of bankruptcy within the meaning of that Ordinance,
and that Ordinance shall apply in relation to such petition as it applies
in relation to a petition presented by a creditor.
(2) The Commission shall not present a petition under subsection (1) in
respect of any person who is a member of an Exchange Company or a clearing
house unless the Commission has given written notification of its
intention to that Exchange Company or, as may be appropriate, that
clearing house.
PART VI SPECIAL PROVISIONS RELATING TO EXCHANGE COMPANIES AND CLEARING HOUSES
47. Transfer and resumption of functions
(1) If it appears to the Commission that an Exchange Company is willing
and able to perform all or any of the functions to which this section
applies, it may request the Governor in Council to make an order
("transfer order") transferring all or any of those functions to that
Exchange Company ("designated Exchange Company") or transfer the functions
in so far as they or it applies to the members or applicants for
membership of that company.
(2) This section applies to any function of the Commission under section
28 and 29, Parts II and XII of the Companies Ordinance (Cap. 32), Parts VI
and VIA of the Securities Ordinance (Cap. 333) and Part IV of the
Commodities Trading Ordinance (Cap. 250). (Amended 87 of 1992 s. 6)
(3) Any function to which this section applies may be transferred by a
transfer order either wholly or in part, and any such transfer may be
subject to a reservation that the function is to be exercisable by the
Commission concurrently with the designated Exchange Company.
(3A) A transfer order may contain such incidental, consequential and
supplemental provisions as may be necessary or expedient for the purpose
of giving full effect to the order. (Added 87 of 1992 s. 6)
(4) The Commission shall not make a request under subsection (1) that a
transfer order be made in respect of the making of financial resources
rules unless the proposed designated Exchange Company has first supplied
the Commission with a draft of the financial resources rules which it
proposes to make, and the Commission is satisfied that those rules, if
made, will afford the investing public an adequate level of protection.
(5) The Commission may at the request or with the consent of a designated
Exchange Company resume all or any of the functions transferred by a
transfer order, but such resumption shall take effect only by order of the
Governor in Council. (6) If at any time it appears that any designated
Exchange Company is unable to or unwilling to perform all or any of the
functions transferred to it by a transfer order, the Governor in Council
may, if the Commission so requests, order that the Commission resume all
or any of such functions.
(7) A transfer order may provide for the designated Exchange Company to
retain all or any fees charged in relation to the performance of any
transferred function, and an order made under subsection (5) or (6) may
provide for the Commission to retain all or any such fees, from a date to
be specified in the order.
48. Information: Exchange Companies and clearing houses
(1) The Commission, each of the Exchange Companies or any clearing house
shall be entitled to supply information about its affairs or, in the case
of an Exchange Company, the affairs of any of its members to any other of
them, and any such supply of information shall not be treated as a
publication for the purposes of the law of defamation and, subject to
section 59, no person so supplying any such information shall incur any
liability as a consequence thereof.
(2) The Commission may by written notice require any Exchange Company or
clearing house to supply it with such information, including information
in its possession or under its control which relates to the affairs of any
of its members, as it may reasonably require for the performance of its
functions under the relevant Ordinances, and any such supply of
information shall not be treated as a publication for the purposes of the
law of defamation; and, without affecting the generality of section 56 (2)
and notwithstanding section 59, no person so supplying any such
information shall incur any liability as a consequence thereof.
49. Notice of closure or re-opening
An Exchange Company shall give to the Commission such written notice as is
reasonable in the circumstances of its intention to close its exchange for
the transaction of business otherwise than in accordance with the rules of
that company and, where it has so closed it, of its intention to re-open
it.
50. Additional powers-restriction notices relating to Exchange Companies
and clearing houses
(1) Subject to subsections (2), (4) and (11), where the Commission is
satisfied that it is in the interest of the investing public or in the
public interest, or it is appropriate to do so for the protection of
investors or for the proper regulation of an Exchange Company or clearing
house, the Commission may by notice in writing ("restriction notice") do
any of the following-
(a) require the Exchange Company or clearing house, before the expiration
of a period specified in the notice-
(i) to amend, withdraw or revoke, in such manner as shall be specified in
the notice, any provision of its memorandum of association, articles of
association, rules or regulations or other instrument so specified;
(ii) to take such action relating to the management, conduct or operation
of its business as may be so specified;
(b) prohibit the Exchange Company or clearing house doing or causing to be
done, during a period so specified, such act or other thing relating to
the management, conduct or operation of its business as shall be so
specified.
(2) The Commission shall not serve a restriction notice unless-
(a) it has previously consulted the Financial Secretary in relation
thereto; (b) it has previously requested in writing the Exchange Company
or clearing house concerned to put, or cause to be put, into effect a
provision (which includes a request to refrain from doing any act or other
thing) specified in the request and similar in effect to the requirement
or prohibition specified in the restriction notice or, in case there is
more than one such requirement or prohibition so specified, provisions the
combined effect of all of which is similar to the combined effect of the
requirements or prohibitions so specified; and
(c) in the case of a request under paragraph (b) which-
(i) contains a provision requesting the Exchange Company or clearing house
concerned to amend, withdraw or revoke any provision of its memorandum or
articles of association under subsection (1) (a) (i), the provision has
not been complied with before the expiration of the period specified in
relation thereto in the request being not less than 45 days; or
(ii) contains a provision requesting the Exchange Company or clearing
house concerned to do or refrain from doing any act or other thing, the
Commission is satisfied that the provision has not been complied with.
(3) (a) Where a restriction notice requires an Exchange Company or
clearing house to amend, withdraw or revoke any provision of its
memorandum of association or articles of association, the Exchange Company
or clearing house may appeal to the Governor in Council against the
notice.
(b) An appeal under paragraph (a) shall not affect the coming into force
of the restriction notice to which the appeal relates.
(4) A period specified in a restriction notice in relation to a
prohibition under subsection (1) (b) shall be a period not exceeding 6
months beginning on the date of the notice.
(5) The Commission may, after consultation with the Financial Secretary,
by notice in writing extend, for a period or successive periods of not
more than 3 months each, the period during which a restriction notice is
to remain in force.
(6) Where a restriction notice is issued or extended under this section,
the Commission may cause to be published in the Gazette a copy of the
notice or, as may be appropriate, particulars of the extension.
(7) A restriction notice may, on the application of the Commission to the
High Court, be enforced by an order of the High Court as if it were a
judgement or order of that court. (8) Where an Exchange Company or
clearing house is in breach of a requirement in a restriction notice under
subsection (1) (a) (i) relating to a provision of its memorandum of
association, articles of association, rules or regulations or other
instrument-
(a) in the case of a requirement to amend such provision, the provision
shall be deemed to have effect as if the requirement had been complied
with;
(b) in the case of a requirement to withdraw or revoke such provision, the
provision shall cease to have effect.
(9) Where-
(a) a restriction notice includes a requirement described in subsection
(1) (a) (i) and the requirement relates to the memorandum of association
or the articles of association of a company; and
(b) by virtue of subsection (8) the provision to which the requirement
relates has effect as if the requirement had been complied with or, as the
case may be, has ceased to have effect,
the Commission shall, as soon as may be, deliver to the Registrar of
Companies a copy of the notice, and if there is an appeal under subsection
(3) against the notice and the appeal is not withdrawn, the Commission
shall, as soon as may be, inform such registrar in writing of the outcome
of the appeal.
(10) No Exchange Company or clearing house, or any member, officer or
servant of an Exchange Company or clearing house shall be liable in
damages for any act or omission done or omitted in compliance or in
purported compliance with a restriction notice unless the act or omission
is shown by the person claiming the damages to have been done or omitted
in bad faith.
(11) Nothing in this section shall be construed as enabling the Commission
to do under this section anything which may be done by the Commission by
direction or order under section 26 or 27 of the Securities Ordinance
(Cap. 333) or section 21 of the Commodities Trading Ordinance (Cap. 250).
51. Additional powers-suspension orders relating to Exchange Companies and
clearing houses
(1) Where the Commission is satisfied that it is in the interest of the
investing public or in the public interest, or it is appropriate to do so
for the protection of investors or for the proper regulation of an
Exchange Company or clearing house, the Commission may, after consultation
with the Financial Secretary, make an order ("suspension order") relating
to all or any of the following functions of the Exchange Company or
clearing house-
(a) the functions of the board of directors or governing body of the
Exchange Company or clearing house;
(b) the functions of a director of a board or a member of a body referred
to in paragraph (a);
(c) the functions of a committee (including a sub-committee) established
by a board or body referred to in paragraph (a);
(d) the functions of the chief executive officer (whether called that or
not) of the Exchange Company or clearing house.
(2) For so long as a suspension order is in force the following provisions
shall apply-
(a) none of the functions to which the order relates shall be performed by
the Exchange Company or clearing house to which it relates or any board,
governing body, committee or officer thereof;
(b) any function to which paragraph (a) applies may be performed by such
person as shall be specified in the order in relation to that function;
(c) a person referred to in paragraph (a) shall not, by act or omission,
either directly or indirectly, affect the manner in which functions
therein referred to are performed. (3) Subject to subsection (5), a
suspension order shall continue in force for such period, being a period
not exceeding 6 months, as shall be specified in the order. (4) (a) A
suspension order or an extension thereof under subsection (5) shall take
effect when a copy of the order or notice of the extension is served under
subsection (6) (a) on the Exchange Company or clearing house to which the
order relates. (b) (i) Where a suspension order is made or such an order
is extended under subsection (5), the Commission shall, if it is practical
so to do, as soon as may be, give a copy of the order or, as may be
appropriate, notice of its extension to the chief executive officer of the
Exchange Company or clearing house to which the order relates and to such
directors or members of the committee thereof (if any) as the Commission
may consider appropriate in the circumstances.
(ii) Nothing in this paragraph shall affect paragraph (a).
(5) The Commission may, after consultation with the Financial Secretary,
extend for a period or successive periods of not more than 3 months each
the period during which a suspension order is to remain in force.
(6) Where a suspension order is made or extended under this section, the
Commission shall-
(a) forthwith serve a copy of the order or notice in writing of the
extension on the Exchange Company or clearing house to which the order
relates; and
(b) cause the suspension order or, as may be appropriate, notice of such
extension to be published in the Gazette.
(7) Where costs or expenses are reasonably incurred by the Commission or a
director or employee thereof in connection with a suspension order, an
amount equal to the amount of the costs or expenses shall be paid to the
Commission on demand by the Exchange Company or clearing house concerned
and shall be recoverable as a civil debt. (8) Any person who knowingly
contravenes subsection (2) (c) commits an offence.
PART VII FUNDING
52. Levies
(1) In the case of every purchase and sale of securities recorded on the
Unified Exchange or notified to it under its rules, the purchaser and the
seller shall each of them be liable to pay to the Commission a levy at
such rate as may be specified by order of the Governor in Council as a
percentage of the consideration for such purchase and sale; and different
rates may be specified under this subsection in respect of different
classes of securities.
(2) In the case of every leviable transaction in each market of the
Futures Exchange Company, the purchaser and the seller shall each of them
be liable to pay to the Commission a levy of such amount as may be
specified by order of the Governor in Council; and different amounts may
be specified under this subsection in respect of different leviable
transactions.
(3) (a) The Stock Exchange Company shall collect and account to the
Commission for the levy referred to in subsection (1).
(b) The Stock Exchange Company shall retain the proportion of the levy
collected under paragraph (a) that is equal to the percentage specified
under paragraph (c) as the amount of the levy to be retained by it, and
shall pay to the Commission the balance of such levy.
(c) The Governor in Council may by order specify the percentage of the
levy collected under paragraph (a) which is to be the amount thereof to be
retained by the Stock Exchange Company pursuant to paragraph (b).
(4) The Futures Exchange Company shall collect, account for and pay to the
Commission the levy referred to in subsection (2).
(5) The Governor in Council may by order amend the rate or amount of levy
payable under subsection (1) or (2).
(6) If at any time in any financial year the reserves of the Commission,
after deducting depreciation and all provisions, are more than an amount
equivalent to twice the estimated operating expenses of the Commission for
that financial year, submitted and approved in accordance with section
14(2), and the Commission then has no outstanding borrowings, the
Commission shall consult the Financial Secretary with a view to
recommending to the Governor in Council that the rate or amount of a levy
payable under this section or fees or charges payable under section 54 be
reduced.
(7) The amount of any levy payable under this section shall be recoverable
as a civil debt due to the Commission.
(8) The Governor in Council may make rules providing for-
(a) the payment of the levies payable under this section;
(b) the imposition of charges for late payment of such levies; and
(c) the keeping, examination and audit of the accounts of the Exchange
Companies relating to the collection and remission of such levies.
(9) In this section "leviable transaction" has the same meaning as in
section 79A (4) of the Commodities Trading Ordinance (Cap. 250).
53. Appropriation
In each financial year there shall be paid to the Commission out of
general revenue such moneys as shall be appropriated for that purpose by
the Legislative Council.
54. Fees and other charges
(1) The Governor in Council may, after consultation with the Commission,
make rules providing for the payment to the Commission of fees or other
charges in relation to-
(a) anything done by the Commission or a committee
of the Commission in the performance of a function relating to share
repurchases, take-overs and mergers; (Amended 77 of 1991 s. 10)
(b) any application to the Commission for any authorization, approval,
exemption, waiver or modification under the relevant Ordinances;
(c) any other function performed under the relevant Ordinances by the
Commission or by a committee established by the Commission;
(d) any other matter with regard to which provision is made by or under
the relevant Ordinances.
(2) (a) Fees or other charges prescribed under this section may be fixed
at levels sufficient to effect the recovery of expenditure incurred, or
likely to be incurred, by the Commission in performing its functions under
the relevant Ordinances but in fixing the level of any such fees or
charges account shall not be taken of any moneys appropriated to the
Commission under section 53.
(b) Fees or other charges prescribed under this section shall not be
limited by reason only of the amount of administrative or other costs
incurred, or likely to be incurred, by the Commission in providing any
service or otherwise performing any function under the relevant Ordinances
as regards any particular person or in providing any service which is of a
particular class or description.
(3) Rules made under this section may provide that the amount of any fees
or other charges may be fixed by reference to a scale prescribed in the
rules, and for the payment of different fees or other charges by or in
relation to persons or cases of different classes or descriptions.
PART VIII MISCELLANEOUS
55. Injunctions to restrain contraventions
(1) If on the application of the Commission the High Court is satisfied
that there is a reasonable likelihood that any person will contravene any
provision of any rules or direction made or given under section 28 or 29
or any notice under Part V, the court may grant an injunction restraining
the contravention or, as the case may be, make an order that any person
who appears to the court to have been knowingly involved in the
contravention take such steps as the High Court may direct.
(2) No application shall be made by the Commission under subsection (1)
for an order affecting any person who is a member of an Exchange Company
unless the Commission has given written notification of its intention to
that Exchange Company.
55A. Waiver or modification of requirements
(1) The Commission may, in relation to any registered person or a person
applying to become a registered person, waive or modify the requirements
of any of the following sections-
(a) sections 23(2) (b) and 27 of this Ordinance;
(b) sections 48 (1A), 49 (1A), 65B, 67, 81 (1) and 84 of the Securities
Ordinance (Cap. 333);
(c) sections 26 (2) and (3) and 46 of the Commodities Trading Ordinance
(Cap. 250) (2) In exercising the power to waive or modify a requirement
under this section in relation to any person, the Commission shall have
regard to the circumstances of the person and of the particular kind of
business carried on or to be carried on by him and, in particular-
(a) to whether compliance with the requirement in question would be unduly
burdensome for the person; and
(b) to whether the exercise of the power in the particular case would
result in undue risk to the investing public.
(3) On making any waiver or modification under this section, the
Commission may impose such conditions as it thinks fit.
(4) A waiver or modification of any requirement under this section shall
continue in force until withdrawn by the Commission.
(Added 63 of 1990 s. 3)
56. Immunity, etc.
(1) No liability shall be incurred by any person in respect of anything
done, or omitted to be done, by him in good faith in the performance or
purported performance of any function under the relevant Ordinances.
(2) Subject to section 50 (10), a person who complies with a requirement
made under this Ordinance shall not incur any liability to any person by
reason only of that compliance. (3) A person who is a legal practitioner
(whether or not he is qualified in Hong Kong to practise as a barrister or
act as a solicitor) shall not be required under this Ordinance to disclose
any information (other than the name and address of a client) or produce
any record or other document which he would be entitled to refuse to
disclose or produce on grounds of legal professional privilege in
proceedings in the High Court. (4) A person who is not a legal
practitioner shall not be required under this Ordinance to disclose any
information or produce any document (whether an original or a copy) if the
requirement to do so would not apply in the case of a legal practitioner
by virtue of subsection (3).
57. Liability of directors, etc.
(1) Where an offence under this Ordinance committed by a corporation is
proved to have been committed with the consent or connivance of, or to be
attributable to any neglect on the part of, any director, manager,
secretary, or other similar officer of the corporation, or any person who
was purporting to act in any such capacity, he, as well as the
corporation, shall be guilty of the offence and shall be liable to be
proceeded against and punished accordingly.
(2) Subject to subsection (3), for the purposes of this section, a person
is deemed to be a director of a corporation if he occupies the position of
a director by whatever name called or is a person in accordance with whose
directions or instructions the directors of the corporation or any of them
act.
(3) A person shall not, by reason only that the directors of a corporation
act on advice given by him in a professional capacity, be taken to be a
person in accordance with whose directions or instructions those directors
act.
(4) Where an offence committed by a partner in a partnership is proved to
have been committed with the consent or connivance of, or to be
attributable to any neglect on the part of, any other partner of the
partnership, that other partner shall be guilty of the offence and liable
to be proceeded against and punished accordingly.
58. Evidence
Any record or other document purporting to be a record or other document,
or a copy of a record or other document, executed, signed or issued by or
on behalf of the Commission and purporting to be signed or initialled by
the chairman or other director or any person employed in the
administration of the relevant Ordinances shall in any proceedings be
admissible as prima facie evidence of the facts stated therein, and it
shall not be necessary to prove the signature or initials of the person
purporting to sign or initial the record or other document.
59. Preservation of secrecy, etc.
(1) Except in the performance of a function under any of the relevant
Ordinances, or in carrying out a provision of any of those Ordinances, a
person who is appointed under any of those Ordinances or who performs or
assists any other person in the performance of a function under any of
those Ordinances-
(a) shall, at all times subsequent to his appointment or after he has
performed or so assisted in the performance of any such function (and
whether or not his appointment continues or he may again perform or so
assist in the performance of any such function), preserve and aid in
preserving secrecy with regard to any matter coming to his knowledge in
the performance of, or assisting in the performance of, any function under
any of the relevant Ordinances;
(b) shall not at any such time communicate any such matter to any other
person; and (c) shall not at any such time suffer or permit any other
person to have access to any record or other document which is in his
possession or under his control by virtue of his being or having been so
appointed or his performing or having performed, or assisting or having
assisted any other person in the performance of a function under any of
the relevant Ordinances.
(2) Notwithstanding subsection (1) the Commission may disclose
information-(a) in the form of a summary complied from similar or related
information provided by persons under any provision of the relevant
Ordinances if the summary is so complied as to prevent particulars
relating to the business or identity, or the trading particulars, of any
such person being ascertained from it;
(b) with a view to the institution of, or otherwise for the purposes of,
any criminal proceedings or any investigation, whether under the relevant
Ordinances or otherwise, in Hong Kong;
(c) in connection with any civil proceedings to which the Commission is a
party; (d) to the Insider Dealing Tribunal constituted under section 15 of
the Securities (Insider Dealing) Ordinance (Cap. 395); (Amended 62 of 1990
s. 44)
(e) to the Financial Secretary, the Secretary for Financial Services, the
Monetary Authority, the Insurance Authority, the Registrar of Companies,
any public officer authorized by the Financial Secretary for the purpose
of this paragraph or any inspector appointed by the Financial Secretary to
investigate the affairs of a corporation, who in the opinion of the
Commission- (Amended 82 of 1992 s. 8; L. N. 96 of 1993) (i) it is
desirable or expedient that the information should be so disclosed in the
interest of the investing public or the public interest; or
(ii) such disclosure will enable or assist the recipient of the
information to perform his functions and it is not contrary to the
interest of the investing public or the public interest that the
information should be so disclosed;
(f) to-
(i) the Stock Exchange Company;
(ii) the Futures Exchange Company;
(iii) the Securities Compensation Fund Committee established under section
99 of the Securities Ordinance (Cap. 333);
(iv) the Commodities Compensation Fund Committee established under section
78 of the Commodities Trading Ordinance (Cap. 250); or
(v) a clearing house,
if in the opinion of the Commission the grounds specified in paragraph (e)
(i) or (ii) are satisfied;
(g) to an authority or regulatory organization outside Hong Kong which, or
to any companies inspector outside Hong Kong appointed to investigate the
affairs of a corporation who, in the opinion of the Commission, satisfies
the requirements referred to in subsection (2A) (a) and (b) if the
Commission is satisfied that-
(i) it is desirable or expedient that the information should be so
disclosed in the interest of the investing public or the public interest;
or
(ii) such disclosure will enable or assist the recipient of the
information to perform its or his functions and it is not contrary to the
interest of the investing public or the public interest that the
information should be so disclosed; (Replaced 67 of 1991 s. 3)
(h) (Repealed 67 of 1991 s. 3)
(i) to such professional or semi-professional bodies in Hong Kong as may
be specified for the purpose of this paragraph by the Commission in such a
notice if, and only if, in the opinion of the Commission, it is desirable
or expedient that the information should be so disclosed;
(ia) (without prejudice to paragraph (i)) to the Hong Kong Society of
Accountants with a view to the institution of, or otherwise for the
purposes of, any disciplinary proceedings relating to the performance or
non-performance of the professional duties of an auditor or a former
auditor appointed under the Securities Ordinance (Cap. 333) or the
Commodities Trading Ordinance (Cap. 333) or the Commodities Trading
Ordinance (Cap. 250); (Added 24 of 1992 s. 2)
(ib) to an auditor or a former auditor appointed under the Securities
Ordinance (Cap. 333) or the Commodities Trading Ordinance (Cap. 250) for
the purpose of enabling or assisting the Commission to discharge its
functions under the relevant Ordinances; (Added 24 of 1992 s. 2)
(j) obtained by an inspector appointed under section 127 (1) of the
Securities Ordinance (Cap. 333) (whether or not such information is
included in notes under section 128 of that Ordinance of an examination
under Part XI thereof or a report made under section 130 of that
Ordinance) to-
(i) the Financial Secretary;
(ii) the Attorney General;
(iii) the police;
(iv) the Independent Commission Against Corruption;
(v) the Insider Dealing Tribunal;
(k) obtained by an investigator under section 33 to any person mentioned
in paragraph (j) (i) to (v);
(l) for the purpose of, or otherwise in connection with, an audit required
by section 16;
(m) with the consent of the person from whom the information was obtained
and if the information relates to a different person, also with the
consent of the person to whom the information relates; or (Added 67 of
1991 s. 3)
(n) if it 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. (Added 67 of 1991 s. 3)
(2A) Where the Commission is satisfied that, for the purposes of
subsection (2) (g), an authority, regulatory organization or companies
inspector-
(a) performs any function similar to a function of the Commission or the
Registrar of Companies, or regulates, supervises or investigates banking,
insurance or other financial services or the affairs of corporations; and
(b) is subject to adequate secrecy provisions,
the Commission shall as soon as practicable cause the name of the
authority, regulatory organization or companies inspector to be published
in the Gazette. (Added 67 of 1991 s. 3)
(3) Where information is disclosed in any of the circumstances described
in subsection (2), other than subsection (2) (a), (m) and (n), neither-
(a) the person to whom that information is disclosed; nor
(b) any person obtaining or receiving the information, whether directly or
indirectly, from the person referred to in paragraph (a), shall disclose
the information, or any part thereof, to any other person without the
consent of the Commission. (4) Subject to subsection (5), the chairman or
any other director of the Commission or any person employed in the
administration of any provision of the relevant Ordinances shall not
directly or indirectly effect or cause to be effected, on his own account
or for the benefit of any other person, any transaction regarding
securities, a futures contract or property investment arrangements-
(a) which he knows to be the subject of an investigation or proceedings by
the Commission under any of the relevant Ordinances or to be the subject
of other proceedings under this Ordinance or is being otherwise considered
by the Commission; (b) which he knows to be connected with a matter which
is either the subject of an investigation or proceedings mentioned in
paragraph (a) or is being otherwise considered by the Commission; or
(c) in respect of which a prospectus or any take-over document is to his
knowledge, being considered for registration under the Companies Ordinance
(Cap. 32). (Amended 87 of 1992 s. 7)
(5) Subsection (4) does not apply to, or in respect of, any right of the
holder of securities by virtue of being that holder-
(a) to exchange the securities or convert them to another form of
securities; (b) to participate in a scheme of arrangement approved by the
High Court under the Companies Ordinance (Cap. 32);
(c) to subscribe for other securities or dispose of a right to subscribe
for other securities;
(d) to charge or pledge the securities to secure the repayment of money;
(e) to realize the securities for the purpose of repaying money referred
to in paragraph (d); or
(f) to realize the securities in the course of performing a duty imposed
by law. (6) Where the chairman or any other director of the Commission or
any person employed in the administration of any of the relevant
Ordinances is, in the course of his duties, required to consider any
matter relating to-
(a) any securities or futures contract or property investment arrangements
in which he has an interest or any securities or futures contract or
property investment arrangements of the same class or kind;
(b) any securities or futures contract or property investment arrangements
in which a company in which he has an interest has an interest;
(c) a person-
(i) with whom he is or has been employed or associated;
(ii) of whom he is or has been a client or, in the case of a bank or
deposit-taking company (within the meaning of section 2 (1) of the Banking
Ordinance (Cap. 155)), a customer; or
(iii) who is or was a client or, in the case of a bank or deposit-taking
company (within the meaning of section 2 (1) of the Banking Ordinance
(Cap. 155)), a customer of a person with whom he is or was employed or
associated.
he shall forthwith inform the Commission that the matter so relates.
(7) Any person who-
(a) contravenes subsection (1) or (3); or
(b) without reasonable excuse, contravenes subsection (4) or fails to
comply with any requirement of subsection (6),
commits an offence.
(Amended 67 of 1991 s. 3)
60. Service of notices
(1) A notice or direction required to be served under any of the relevant
Ordinances shall be properly served if-
(a) in the case of an individual, it is delivered to him or, where it
cannot conveniently be so delivered, it is-
(i) left at the address at which he ordinarily resides or carries on
business or, if such an address is unknown, at his last known address; or
(ii) sent by post to him at any such address;
(b) in the case of-
(i) a company, it is delivered to an officer of the company or, where it
cannot so be conveniently delivered, it is left at, or sent by post to,
the company's registered office;
(ii) an overseas company within the meaning of the Companies Ordinance
(Cap. 32), it is left with, or sent by post to, the person resident in
Hong Kong who is authorized to accept service of process and notices on
its behalf for the purposes of Part XI of that Ordinance;
(c) in the case of a partnership, it is delivered to any partner or where
it cannot be conveniently delivered, it is left at, or sent by post to,
the address at which the partnership carries on business;
(d) in the case of a body corporate other than a company or an
unincorporated body of persons other than a partnership, it is delivered
to an officer of the body, or where it cannot be conveniently delivered,
it is left at, or sent by post to, the address at which the body carries
on business.
(2) For the purposes of subsection (1), every other body corporate other
than a company and every unincorporated body of persons not being a
partnership shall be deemed to carry on business at its principal office
or place of business.
61. Penalties for offences
Any person who commits an offence under section 21 (10), 30 (6) or (7), 31
(3), 33 (12), 36 (6), 37, 51 (8) or 59 (7) is liable-
(a) on conviction upon indictment to a fine of $ 1,000,000 and, in the
case of an individual, to imprisonment for 2 years;
(b) on summary conviction to a fine of $ 100,000 and, in the case of an
individual, to imprisonment for 6 months.
62. Prosecution of certain offences by Commission
(1) Any offence under any of the relevant Ordinances may be prosecuted by
the Commission in its own name but, where under this subsection the
Commission prosecutes an offence, the offence shall be tried before a
magistrate as an offence which is triable summarily. (2) For the purposes
of the prosecution of an offence mentioned in subsection (1) and only for
those purposes, an employee of the Commission who apart from this
subsection is not qualified to act as a barrister or solicitor may appear
and plead before a magistrate any case of which he has charge and shall,
in relation to the prosecution, have all the other rights of a person
qualified to practise as a barrister or solicitor under the Legal
Practitioners Ordinance (Cap. 159).
(3) Nothing in this section shall derogate from the powers of the Attorney
General in respect of the prosecution of criminal offences.
63. Dissolution of Provisional Securities and Futures Commission Limited
and transfer of property
(1) The Provisional Securities and Futures Commission Limited ("the
Company") shall, on the establishment day, be dissolved by virtue of this
section.
(2) All property, whether movable (including choses-in-action) or
immovable, which immediately before the establishment day was vested in or
belonged to or was held in trust or subject to conditions for the Company
and all rights, powers and privileges relating to or connected with any
such property, shall on the establishment day, without any conveyance or
assignment, be transferred to and vested in or become the property of or
property held in trust or subject to conditions for the Commission. (3)
All property transferred by this section which immediately before the
establishment day was standing in the books of any bank or was registered
in the books of any bank, corporation or company in the name of the
Company shall, upon the request of the Commission made at any time on or
after the establishment day, be transferred in those books by the bank,
corporation or company into the name of the Commission. (4) Every chose-
in-action transferred by this section may, on or after the establishment
day, be sued upon, recovered, or enforced by the Commission in its own
name and it shall not be necessary for the Commission to give notice to
the person bound by any such chose-in-action of the transfer effected by
this section.
(5) Every debt or other liability (including unliquidated liabilities
arising from torts or breaches of a contract) which immediately before the
establishment day is owing and unpaid or has been incurred and is
undischarged by the Company shall, on the establishment day, become and be
the debt or liability of the Commission and shall be paid or discharged by
and may be recovered from and shall be enforceable against the Commission
accordingly.
(6) Every contract which was entered into and is in force immediately
before the establishment day between the Company and any person shall
continue in force on and after the establishment day, but it shall be
construed and have effect as if the Commission were substituted therein
for the Company and shall be enforceable by or against the Commission
accordingly.
(7) Where, immediately before the establishment day, any legal proceedings
are pending to which the Company is a party, the name of the Commission
shall be substituted for that of the Company and the proceedings shall not
abate by reason of such substitution. (8) The Stamp Duty Ordinance (Cap.
117) shall not apply to the vesting in the Commission of property or
rights transferred by this section.
64. Transitional
(1) The Securities Commission Disciplinary Committee as constituted
immediately prior to the establishment day shall continue in existence for
the purposes of completing any inquiry commenced under section 39 of the
Securities Ordinance (Cap. 333), or hearing any appeal commenced under
section 58 of that Ordinance, prior to that date but not at that date
completed or disposed of, and for the purposes of this subsection-
(a) any
such inquiry or appeal may be continued and completed or disposed of; and
(b) any order or decision of the Disciplinary Committee so constituted may
be made or given and shall have the same force and effect,
as if this Ordinance had not been enacted.
(2) Any proceedings before a Disciplinary Committee or an Appeals
Committee appointed under section 66 of the Commodities Trading Ordinance
(Cap. 250) commenced prior to the establishment day under that Ordinance
but not completed or disposed of at that day may be continued and
completed or disposed of (by the making of an order or otherwise) by such
Committee as if this Ordinance had not been enacted.
(3) Any business being the business of a committee established under
section 16 of the Securities Ordinance (Cap. 333) or section 9 of the
Commodities Trading Ordinance (Cap. 250) and subsisting immediately
before the establishment day which had not been completed and disposed of
at that day shall be transferred to and be the business of a corresponding
committee established under section 6 of this Ordinance. (4) Any claim
for compensation from a compensation fund made under-
(a) the transitional arrangements in Schedule 2 to the Stock Exchanges
Unification Ordinance (Cap. 361) which has not been disposed of at the
establishment day may be continued and disposed of under those
transitional arrangements after the establishment day;
(b) Part X of the Securities Ordinance (Cap. 333) which has not been
disposed of at the establishment day may be continued and disposed of
under that Part after the establishment day;
(c) Part VIII of the Commodities Trading Ordinance (Cap. 250) which has
not been disposed of at the establishment day may be continued and
disposed of under that Part after the establishment day.
(5) Any appeal commenced under the Securities Ordinance (Cap. 333) or the
Commodities Trading Ordinance (Cap. 250) (other than an appeal referred to
in subsection (1) or (2)) and not disposed of at the establishment day may
be continued and disposed of under that Ordinance as if this Ordinance had
not.
(6) Any authorization granted or issued under the Securities Ordinance
(Cap. 333), the Protection of Investors Ordinance (Cap. 335), the
Commodities Trading Ordinance (Cap. 250) or the Stock Exchanges
Unification Ordinance (Cap. 361) which is in force immediately before the
establishment day shall continue in force after that day as if the
authorization had been granted or issued under this Ordinance.
(7) Any licence or exemption granted, certificate issued, recognition or
permission given, declaration made, suspension or condition imposed or
attached or other thing done by the former Securities Commission, the
former Commissioner for Securities, the former Commodities Trading
Commission or the former Commissioner for Commodities Trading in the
performance of a function similar to a function of the Commission shall,
if that thing was in force, subsisting or effective immediately before the
establishment day, be regarded as having been granted, issued, given,
made, imposed, attached or done by the Commission in performing the
function and for the purposes of this subsection the function shall be
regarded as having been performable by the Commission at the time the
thing was granted, issued, given, made, imposed, attached or done.
(8) Any application under Part VI of the Securities Ordinance (Cap. 333)
to the former Commissioner for Securities or any notification given to the
former Commissioner for Securities or any application under Part IV of the
Commodities Trading Ordinance (Cap. 250), or any notification given to
the former Commissioner for Commodities Trading which was pending or
effective immediately before the establishment day shall, unless it is
withdrawn after that day, be determined by or, as may be appropriate, be
regarded as having been given to, the Commission as if it had originally
been made or given to the Commission by virtue of this Ordinance.
(9) In subsection (7) and (8) "former" means existing immediately before
the establishment day.
SCHEDULE [s. 9] FUNCTIONS OF COMMISSION TO WHICH SECTION 9 DOES NOT APPLY
1. Any power of the Commission to make subsidiary legislation.
2. A function of the Commission under section 4 (2), 8 (d), 10 (1), 12, 14
(2), 15, 32 (1), 33 (10), 39, 40, 41, 43 (1), 45 (1), 46 (1), 47, 50 (1)
or (5) or 51 (1) or (5), the power of the Commission under section 16 (1)
to appoint auditors and the Commission's power of appointment under
section 33 (1). (Amended 67 of 1991 s. 4) 3. A function of the Commission
under section 14 (3), 26 (1), 27, 65B (6), 74 (3), 100 (2), (3), (4) or
(7), 110 or 130 (5) of the Securities Ordinance (Cap. 333), the
Commission's power of appointment under section 127 (1) of that Ordinance
in so far as it is exercisable as regards a person who is not an employee
of the Commission, the making by the Commission of an order described in
section 134 (1) of that Ordinance and the Commission's power to apply to
the High Court under section 144 of that Ordinance for an order described
in subsection (1) of that section.
4. A function of the Commission under section 14 (1), 15, 16, 18 (1), 19
(1), 21 (1) or (2), 60A (3), 78 or 113 (4) of the Commodities Trading
Ordinance (Cap. 250) and the Commission's power to prescribe by virtue of
section 13 (3) (j) of that Ordinance. 5. A function of the Commission
under section 3 (1), 3 (4), 10A, 34 (2), 35 (1), 36 (1) or 44 (3) of the
Stock Exchanges Unification Ordinance (Cap. 361). (Amended 66 of 1990 s.
3; 68 of 1992 s. 20)
6. A function of the Commission under section 3 (1) or 4 (1), (4), (10) or
(11) of the Securities (Clearing Houses) Ordinance (Cap. 420). (Added 68
of 1992 s. 20)
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