Annex D

Chapter:
	32	Title:
	COMPANIES ORDINANCE	Gazette Number:
	L.N. 119 of 2000	
Section:
	265	Heading:
	Preferential payments
	Version Date:
	01/12/2000

(1)	In a winding up there shall be paid in priority to all other debts-
(a)	(Repealed 6 of 1984 s. 181)
(b)	any-
(i)	payment from the Protection of Wages on Insolvency Fund under section 18 of the Protection of Wages on Insolvency Ordinance (Cap 380) to any clerk or servant in respect of wages or salary or both in respect of services rendered to the company if such payment was made during a period of 4 months before the commencement of the winding up; and  (Amended 48 of 1987 s. 8)
(ii)	wages and salary (including commission provided that the amount thereof is fixed or ascertainable at the relevant date) of any clerk or servant in respect of services rendered to the company during the relevant period not exceeding, together with any payment under sub-paragraph (i), $3000;  (Replaced 12 of 1985 s. 29)
(c)	any-
(i)	payment from the Protection of Wages on Insolvency Fund under section 18 of the Protection of Wages on Insolvency Ordinance (Cap 380) to any labourer or workman in respect of wages, whether payable for time or for piece work, in respect of services rendered to the company if such payment was made during a period of 4 months before the commencement of the winding up; and  (Amended 48 of 1987 s. 8)
(ii)	wages of any labourer or workman, whether payable for time or for piece work, in respect of services rendered to the company during the relevant period not exceeding, together with any payment under sub-paragraph (i), $3000;  (Replaced 12 of 1985 s. 29)
(ca)	any severance payment payable to an employee under the Employment Ordinance (Cap 57), not exceeding in respect of each employee $6000;  (Added 55 of 1974 s. 2)
(caa) any long service payment payable to an employee under the Employment Ordinance (Cap 57), not exceeding in respect of each employee $8000;  (Added 77 of 1985 s. 2)
(cb)	any amount due in respect of compensation or liability for compensation under the Employees' Compensation Ordinance (Cap 282) accrued before the relevant date and, where the compensation is a periodical payment, the amount due in respect thereof shall be taken to be the amount of the lump sum for which the periodical payment could, if redeemable, be redeemed on an application being made for that purpose under the Employees' Compensation Ordinance (Cap 282), but this paragraph shall not apply to any amount due in respect of compensation or liability for compensation where the company has entered into a contract with a person carrying on accident insurance business in Hong Kong in respect of its liability under the Employees' Compensation Ordinance (Cap 282) for personal injury by accident to the employee to whom the compensation or liability for compensation is due or where the company is wound up voluntarily merely for the purposes of reconstruction or of amalgamation with another company;  (Added 4 of 1977 s. 2. Amended 6 of 1984 s. 259)
(cc)	any wages in lieu of notice payable to an employee under the Employment Ordinance (Cap 57), not exceeding in respect of each employee one month's wages or $2000 whichever is the lesser;  (Added 4 of 1977 s. 2)
(cd)	all accrued holiday remuneration becoming payable to any clerk, servant, workman or labourer (or in the case of his death to any other person in his right) on the termination of his employment before or by the effect of the winding-up order or resolution;  (Added 6 of 1984 s. 181)
(ce)	any payment from the Employees Compensation Assistance Fund under Part IV of the Employees Compensation Assistance Ordinance (Cap 365) representing an amount due by the company in respect of compensation or liability for compensation under the Employees' Compensation Ordinance (Cap 282) accrued before the relevant date;  (Added 54 of 1991 s. 47)
(cf)	any amount of unpaid contribution or any amount deemed to be unpaid contribution calculated in accordance with rules made under section 73(1)(n) of the Occupational Retirement Schemes Ordinance (Cap 426) which should have been paid by the company being wound up in accordance with the terms of an occupational retirement scheme within the meaning of that Ordinance before the commencement of the winding up:
Provided that where such amount exceeds $50000 in respect of an employee, 50% of such part of the amount that exceeds $50000 shall not be paid in priority to all other debts under this subsection;  (Added 88 of 1992 s. 84)
(cg)	(without prejudice to any right or liability under a trust) any amount of salaries deducted by the company being wound up from its employees' salaries for the purpose of making contributions in respect of such employees to the funds of an occupational retirement scheme within the meaning of the Occupational Retirement Schemes Ordinance (Cap 426) which have not been paid into such funds;  (Added 88 of 1992 s. 84)
(ch)	any amount of unpaid contribution under, or any amount of unpaid contribution calculated in accordance with, the Mandatory Provident Fund Schemes Ordinance (Cap 485) which should have been paid by the company being wound up in accordance with the provisions of that Ordinance before the commencement of the winding up:
Provided that where such amount exceeds $50000 in respect of an employee, 50% of such part of the amount that exceeds $50000 shall not be paid in priority to all other debts under this subsection;  (Added 80 of 1995 s. 49)
(ci)	any amount deducted by the company being wound up from the relevant income of its relevant employees for the purpose of making contributions in respect of such relevant employees to the approved trustee of a registered scheme within the meaning of the Mandatory Provident Fund Schemes Ordinance (Cap 485) which have not been paid to that approved trustee;  (Added 80 of 1995 s. 49)
(cj)	any sum and interest thereon payable to the Mandatory Provident Fund Schemes Authority under section 17(7) of the Mandatory Provident Fund Schemes Ordinance (Cap 485);  (Added 80 of 1995 s. 49)
(d)	all statutory debts due from the company to the Government at the relevant date and which became due and payable within 12 months next before that date.  (Replaced 6 of 1984 s. 181. Amended 23 of 1999 s. 3)
(da)	(Repealed 30 of 1999 s. 18)++
(db)	where the company being wound up is or was a bank and, at the commencement of the winding up, held deposits, the aggregate amount held on deposit, up to a maximum of $100000, to each depositor, regardless of the number of his deposits;  (Added 83 of 1995 s. 16)
(e)	where the company being wound up is an insurer, any sum payable to a person in respect of any claim (other than a claim for a refund of premium) made under or in accordance with a contract of insurance (but not a contract of reinsurance) effected by the insurer as part of its general business carried on in or from Hong Kong, unless-
(i)	such sum is, under the contract or in the ordinary course of business, payable in a place outside Hong Kong where assets of the company are maintained and under the law of that place the claim in respect of which the sum is payable is, in the event of a winding up, accorded priority with respect to those assets over claims which under the contract or in the ordinary course of business are payable at any other place; or
(ii)	the person to whom the sum is payable is entitled with respect to the claim to claim compensation under any scheme designed to secure compensation to persons in circumstances where the insurer becomes insolvent;  (Added 79 of 1988 s. 8)
(ea)	where the company being wound up is an insurer, any payment from the Employees Compensation Assistance Fund under Part IV of the Employees Compensation Assistance Ordinance (Cap 365) representing a sum payable by the company to a person in respect of any claim (other than a claim for refund of premium) made under or in accordance with a contract of insurance issued for the purposes of Part IV of the Employees' Compensation Ordinance (Cap 282) effected by the insurer as part of its general business carried on in or from Hong Kong; unless such sum is, under the contract or in the ordinary course of business, payable in a place outside Hong Kong where assets of the company are maintained and under the law of that place the claim in respect of which the sum is payable is, in the event of a winding up, accorded priority with respect to those assets over claims which under the contract or in the ordinary course of business are payable at any other place;  (Added 54 of 1991 s. 47)
(f)	where the company being wound up is an insurer, any sum payable (after offsetting the amount of any sums owing from the claimant) to a person in respect of any claim (other than a claim for a refund of premium) made under or in accordance with a contract of reinsurance effected by the insurer, as reinsurer, as part of its general business carried on in or from Hong Kong, unless such sum is, under the contract or in the ordinary course of business, payable in a place outside Hong Kong where assets of the company are maintained and under the law of that place the claim in respect of which the sum is payable is, in the event of a winding up, accorded priority with respect to those assets over claims which under the contract or in the ordinary course of business are payable at any other place.  (Added 79 of 1988 s. 8)
(1A)	Where the relevant date is on or after 1 June 1970 but before 1 April 1977, the sum of $6000 shall be deemed to be substituted in each case for the sums of $3000 referred to in paragraphs (b) and (c) respectively of subsection (1).  (Added 41 of 1970 s. 2. Amended 4 of 1977 s. 2)
(1B)	Where the relevant date is on or after 1 April 1977, the sum of $8000 shall be deemed to be substituted in each case for the sums of $3000 referred to in paragraphs (b) and (c) respectively, and for the sum of $6000 referred to in paragraph (ca), of subsection (1).  (Added 4 of 1977 s. 2)
(2)	Subject to subsection (1)(b) and (c), where any payment on account of wages or salary, or severance payment, or long service payment or wages in lieu of notice payable under the Employment Ordinance (Cap 57), or accrued holiday remuneration, has been made to any clerk, servant, workman or labourer in the employment of a company out of money advanced by some person for that purpose, that person shall in a winding up have a right of priority in respect of the money so advanced and paid up to the amount by which the sum in respect of which that clerk, servant, workman or labourer would have been entitled to priority in the winding up has been diminished by reason of the payment having been made.  (Amended 6 of 1984 s. 181; 12 of 1985 s. 29(3); 77 of 1985 s. 2)
(3)	The debts specified in subsection (1)(b), (c), (ca), (caa), (cb), (cc), (cd), (ce), (cf), (cg), (ch), (ci) and (cj)-  (Amended 55 of 1974 s. 2; 4 of 1977 s. 2; 6 of 1984 s. 181; 77 of 1985 s. 2; 54 of 1991 s. 47; 88 of 1992 s. 84; 80 of 1995 s. 49)
(a)	shall have priority over the debts specified in subsection (1)(d);
(b)	shall rank equally among themselves; and
(c)	shall be paid in full unless the assets are insufficient to meet them, in which case they shall abate in equal proportions among themselves.  (Replaced 41 of 1970 s. 2)
(3A)	The debts specified in subsection (1)(d) shall have priority over the debts specified in subsection (1)(da), (db), (e), (ea) and (f).  (Added 79 of 1988 s. 8. Amended 54 of 1991 s. 47; 10 of 1993 s. 2; 83 of 1995 s. 16)
(3AAA)	The debts specified in subsection (1)(da) shall have priority over the debts specified in subsection (1)(db), (e), (ea) and (f).  (Added 10 of 1993 s. 2. Amended 83 of 1995 s. 16)
(3AAAA)	The debts specified in subsection (1)(db)-
(a)	shall have priority over the debts in subsection (1)(e), (ea) and (f);
(b)	shall rank equally among themselves; and
(c)	shall be paid in full unless the assets are insufficient to meet them, in which case they shall abate in equal proportions among themselves.  (Added 83 of 1995 s. 16)
(3AA)	The debts specified in subsection (1)(e) and (ea)-
(a)	shall have priority over the debts specified in subsection (1)(f);
(b)	shall rank equally among themselves; and
(c)	shall be paid in full unless the assets are insufficient to meet them, in which case they shall abate in equal proportions among themselves.  (Added 79 of 1988 s. 8. Amended 54 of 1991 s. 47)
(3AB)	The debts specified in subsection (1)(f)-
(a)	shall rank equally among themselves; and
(b)	shall be paid in full unless the assets are insufficient to meet them, in which case they shall abate in equal proportions among themselves.  (Added 79 of 1988 s. 8)
(3B)	The debts specified in subsection (1) shall, so far as the assets of the company available for payment of general creditors are insufficient to meet those debts, have priority over the claims of holders of debentures under any charge created as a floating charge by the company, and shall be paid accordingly out of any property comprised in or subject to the charge.  (Added 41 of 1970 s. 2. Amended 10 of 1987 s. 9)
(4)	Subject to the retention of such sums as may be necessary for the costs and expenses of the winding up, the foregoing debts shall be discharged forthwith so far as the assets are sufficient to meet them.
(5)	In the event of a landlord or other person distraining or having distrained on any goods or effects of the company within 3 months next before the date of a winding-up order, the debts to which priority is given by this section shall be a first charge on the goods or effects so distrained on, or the proceeds of the sale thereof.  (Amended 41 of 1970 s. 2)
(5A)	Any money paid under a charge under subsection (5) shall be a debt due from the company to the landlord or other person having distrained, and such debt shall be discharged so far as the assets are sufficient to meet it after payment of the debts specified in subsection (1) but before payment of the other debts proved in the winding up.  (Added 41 of 1970 s. 2) 
(5B)	Where in any winding up assets have been recovered under an indemnity for costs of litigation given by certain creditors, or have been protected or preserved by the payment of moneys or the giving of indemnity by creditors, or where expenses in relation to which a creditor has indemnified a liquidator have been recovered, the court may, on the application of the Official Receiver or the liquidator or any such creditor, make such order as it deems just with respect to the distribution of those assets and the amount of those expenses so recovered with a view to giving those creditors an advantage over others in consideration of the risk run by them in so doing.  (Added 6 of 1984 s. 181)
(5C)	Any remuneration in respect of a period of holiday or of absence from work through sickness or other good cause shall be deemed to be wages in respect of services rendered to the company during that period.  (Added 6 of 1984 s. 181)
(5D)	The deposits given priority under subsection (1)(db) do not include the following-
(a)	terms deposits where the current term agreed to by the depositor at the most recent time it was negotiated exceeds 5 years;
(b)	deposits made after the date of publication of a notice in the Gazette under section 28(2)(b) of the Banking Ordinance (Cap 155) that the company has been removed from the register and has ceased to be a bank.  (Added 83 of 1995 s. 16)
(5E)	The priority given under subsection (1)(db) does not apply to money held on deposit where a depositor, after a bank ceases carrying on banking business and whether or not winding up proceedings have commenced at that time, assigns to another person his rights to a portion of the money on deposit in the depositor's name, if the effect of such an assignment is to increase the amount of money that will be eligible for priority under subsection (1)(db).  (Added 83 of 1995 s. 16)
(5F)	Deposits given priority under subsection (1)(db) do not include deposits made in the name of-
(a)	the Exchange Fund established under the Exchange Fund Ordinance (Cap 66);
(b)	a multilateral development bank as defined in paragraph 1 of the Third Schedule to the Banking Ordinance (Cap 155);
(c)	a holding company that holds all of the shares of the company being wound up, a subsidiary of the company being wound up or a subsidiary of the holding company;
(d)	a person who, at the commencement of the winding up, was a director, controller or manager of-
(i)	the company being wound up;
(ii)	a subsidiary of the company being wound up;
(iii)	a holding company that holds all of the shares of the company being wound up or a subsidiary of the holding company;
(e)	an authorized institution as defined in the Banking Ordinance (Cap 155).  (Added 83 of 1995 s. 16)
(6)	In this section-
"accrued holiday remuneration" (累算的假日薪酬) includes, in relation to any person, all sums which, by virtue either of his contract of employment or of any enactment (including any order made or direction given under any Ordinance), are payable on account of the remuneration which would, in the ordinary course, have become payable to him in respect of a period of holiday had his employment with the company continued until he became entitled to be allowed the holiday;
"bank" (銀行) has the same meaning as in the Banking Ordinance (Cap 155);  (Added 83 of 1995 s. 16)
"controller" (總監) has the same meaning as in the Banking Ordinance (Cap 155);  (Added 83 of 1995 s. 16)
"deposit" (存款) and "depositor" (存戶) have the same meaning as in the Banking Ordinance (Cap 155);  (Added 83 of 1995 s. 16)
"Employees Compensation Assistance Fund" (僱員補償援助基金) means the fund established by section 7 of the Employees Compensation Assistance Ordinance (Cap 365);  (Added 54 of 1991 s. 47)
"general business" (一般業務) means insurance business not being long term business as defined in section 2(1) of the Insurance Companies Ordinance (Cap 41);  (Added 79 of 1988 s. 8)
"insurer" (保險人) means a person carrying on insurance business;  (Added 79 of 1988 s. 8)
"manager" (經理) has the same meaning as in the Banking Ordinance (Cap 155);  (Added 83 of 1995 s. 16)
"Protection of Wages on Insolvency Fund" (破產欠薪保障基金) means the fund deemed to be established and continued in existence under section 6 of the Protection of Wages on Insolvency Ordinance (Cap 380);  (Added 12 of 1985 s. 29(3))
"the relevant date" (有關日期) means-
(a)	in the case of a company ordered to be wound up compulsorily, the date of the appointment (or first appointment) of a provisional liquidator or, if no such appointment was made, the date of the winding-up order, unless in either case the company had commenced to be wound up voluntarily before that date; and
(b)	in any case where paragraph (a) does not apply, the date of the commencement of the winding up;
"the relevant period" (有關期間) means-
(a)	in a case where a company is being wound up by the court and the relevant date in the case of that company is a date other than the date of the commencement of the winding up, the period-
(i)	beginning 4 months next before the commencement of the winding up and ending on the relevant date; or
(ii)	beginning 4 months next before the last day of service within the meaning of section 16(4) of the Protection of Wages on Insolvency Ordinance (Cap 380) of any clerk or servant or labourer or workman, as the case may be, who has made an application for an ex gratia payment under section 15(1) of that Ordinance, and ending on that last day of service,  (Replaced 68 of 1996 s. 5)
whichever is the earlier;
(b)	in any case where paragraph (a) does not apply, the period-
(i)	of 4 months next before the relevant date; or
(ii)	beginning 4 months next before the last day of service within the meaning of section 16(4) of the Protection of Wages on Insolvency Ordinance (Cap 380) of any clerk or servant or labourer or workman, as the case may be, who has made an application for an ex gratia payment under section 15(1) of that Ordinance, and ending on that last day of service,  (Replaced 68 of 1996 s. 5)
whichever is the earlier;  (Replaced 48 of 1987 s. 8)
"statutory debt" (法定債項) means a debt the liability for which and the amount of which are determined by or under any provision in any Ordinance;  (Amended 23 of 1999 s. 3)
"wages" (工資) includes, in relation to any person, any sum which, by virtue of his contract of employment, is payable to him as a Lunar New Year bonus, but does not include any accrued holiday remuneration.  (Replaced 6 of 1984 s. 181)
(7)	The Companies (Amendment) Ordinance 1984 (6 of 1984) shall not apply in the case of a winding up where the relevant date occurred before the commencement* of that Ordinance, and, in such a case, the provisions relating to preferential payments which would have applied if that Ordinance had not been enacted shall be deemed to remain in full force.  (Added 6 of 1984 s. 181)
(8)	The Fourth Schedule to the Protection of Wages on Insolvency Ordinance 1985 (12 of 1985) shall not apply in the case of a winding up where the date of the commencement of the winding up occurred before the commencement+ of that Ordinance, and, in such case, the provisions relating to preferential payments which would have applied if that Ordinance had not been enacted shall be deemed to remain in full force  (Added 12 of 1985 s. 29(3))
(9)	The Companies (Amendment) (No. 3) Ordinance 1988 (79 of 1988) shall not apply in the case of a winding up where the date of the commencement of the winding up occurred before the commencement of that Ordinance, and, in such a case, the provisions relating to preferential payments which would have applied if that Ordinance had not been enacted shall be deemed to remain in full force.  (Added 79 of 1988 s. 8)
(10)	Section 5(a) of the Protection of Wages on Insolvency (Amendment) Ordinance 1996 (68 of 1996) ("the amending Ordinance") shall not apply in the case of a winding up to which an application under section 15(1) of the Protection of Wages on Insolvency Ordinance (Cap 380) relates where such application is made before the commencement** of the amending Ordinance, and in such a case, the provisions relating to preferential payments which would have applied if the amending Ordinance had not been enacted shall be deemed to remain in full force.  (Added 68 of 1996 s. 5)
[cf. 1929 c. 23 s. 264 U.K.]
------------------------------------------------------------------------------------------------------------
*	Commencement date: 31 August 1984.
+	Commencement date: 19 April 1985.
**	Commencement date: 6 December 1996.
++	Note:	Sections 265(1)(da) was repealed by the Companies (Amendment) Ordinance 1999 (30 of 1999). Section 43 of that Ordinance provides as follows-

"43.	Savings

Despite the repeal of sections 265(1)(da), 290A, 290B and 290E of the principal Ordinance, those sections are to continue to have effect in relation to a company that has been struck off under section 290A of the principal Ordinance as if those sections had not been repealed.".

Chapter:
	155	Title:
	BANKING ORDINANCE	Gazette Number:
	L.N. 16 of 2003	
Section:
	120	Heading:
	Official secrecy
	Version Date:
	01/04/2003

(1)	Except as may be necessary for the exercise of any function under this Ordinance or for carrying into effect the provisions of this Ordinance, every person to whom this subsection applies-  (Amended 64 of 1987 s. 26) 
(a)	shall preserve and aid in preserving secrecy with regard to all matters relating to the affairs of any person that may come to his knowledge in the exercise of any function under this Ordinance; 
(b)	shall not communicate any such matter to any person other than the person to whom such matter relates; and 
(c)	shall not suffer or permit any person to have access to any records in the possession, custody or control of any person to whom this subsection applies. 
(2)	Subsection (1) shall apply to any person who is or has been- 
(a)	a public officer; 
(b)	a person authorized by the Monetary Authority;
(c)	the Advisor of an authorized institution;  (Replaced 49 of 1995 s. 36) 
(d)	the Manager of an authorized institution;  (Replaced 49 of 1995 s. 36) 
(da)	a person appointed under section 53G(5);  (Added 49 of 1995 s. 36) 
(e)	a person appointed under section 117(2); and 
(f)	a person employed by or assisting a person to whom this subsection applies by virtue of paragraph (b), (c), (d), or (e), 
who exercises or has exercised any function under this Ordinance. 
(3)	Subsection (1) shall not apply if the Manager of an authorized institution is required to comply with a notice to furnish returns and information under section 51 of the Inland Revenue Ordinance (Cap 112).  (Replaced 49 of 1995 s. 36) 
(4)	No person who exercises any function in the course of an examination or investigation under section 47, 50, 55 or 117 or who receives reports, returns or information submitted under section 47, 50, 55, 56, 59, 63 or 64 shall be required to produce in any court any book, account or other document whatsoever or to divulge or communicate to any court any matter or thing coming under his notice in the exercise of his functions under this Ordinance, except as may be necessary in the course of a prosecution for any offence or of a winding-up by the Court of First Instance under section 122.  (Amended 67 of 1992 s. 9; 25 of 1998 s. 2) 
(5)	Subsection (1) shall not apply- 
(a)	to the disclosure of information in the form of a summary of similar information provided by a number of authorized institutions if the summary is so framed as to prevent particulars relating to the business of any particular authorized institution being ascertained from it; 
(b)	to the disclosure of information with a view to the institution of, or otherwise for the purposes of, any criminal proceedings, whether under this Ordinance or otherwise; 
(c)	in connection with any other legal proceedings arising out of this Ordinance; 
(d)	to the disclosure of information to the police or the Independent Commission Against Corruption, at the request of the Secretary for Justice, relevant to the proper investigation of any criminal complaint;  (Amended L.N. 362 of 1997) 
(e)	to the disclosure of information by the Monetary Authority with a view to the institution of, or otherwise for the purposes of, any disciplinary proceedings relating to the exercise of his professional duties by an auditor or former auditor of an authorized institution or former authorized institution, whether or not the auditor or former auditor, as the case may be, was appointed under section 50, 59 or 63;  (Replaced 43 of 1990 s. 9. Amended 67 of 1992 s. 9)
(f)	to the disclosure of information by the Monetary Authority to the Chief Executive, the Financial Secretary, an inspector appointed by the Financial Secretary to investigate the affairs of a company, a person holding an authorized statutory office or any public officer authorized by the Financial Secretary for the purposes of this paragraph where, in the opinion of the Monetary Authority-  (Amended L.N. 96 of 1993; 68 of 1999 s. 3; L.N. 106 of 2002) 
(i)	it is desirable or expedient that information should be so disclosed in the interests of depositors or potential depositors or the public interest; or 
(ii)	such disclosure will enable or assist the recipient of the information to exercise his functions and it is not contrary to the interests of depositors or potential depositors or the public interest that the information should be so disclosed;  (Replaced 95 of 1991 s. 40)
(fa)	to the disclosure of information by the Monetary Authority to the Securities and Futures Commission relating to-
(i)	the carrying on of a regulated activity by a registered institution; or
(ii)	the carrying on by an authorized institution of the business of receiving or holding client assets, within the meaning of Schedule 1 to the Securities and Futures Ordinance (Cap 571), of intermediaries, within the meaning of Schedule 1 to that Ordinance, of which the institution is an associated entity within the meaning of Schedule 1 to that Ordinance;  (Added 6 of 2002 s. 12)
(g)	to the disclosure of information by the Monetary Authority to an auditor of an authorized institution or former authorized institution, or to a former auditor, for the purpose of enabling or assisting the Monetary Authority to discharge his functions under this Ordinance;  (Replaced 43 of 1990 s. 9. Amended L.N. 276 of 1990; 95 of 1991 s. 40) 
(ga)	to the disclosure of information- 
(i)	to any person appointed under section 5A(3) of the Exchange Fund Ordinance (Cap 66); and 
(ii)	where such disclosure will enable or assist such person to assist the Monetary Authority in the performance of any of the functions referred to in that section;  (Added 49 of 1995 s. 36) 
(h)	subject to subsection (5D), to the disclosure of information by the Monetary Authority with the consent of- 
(i)	the person from whom the information was obtained or received; and 
(ii)	where the information does not relate to such person, the person to whom it relates; or  (Added 95 of 1991 s. 40) 
(i)	to the disclosure of information which has been made available to the public by virtue of being disclosed in any circumstances in which, or for any purpose for which, disclosure is not precluded by this section or section 121.  (Added 95 of 1991 s. 40) 
(5A)	For the purposes of subsection (5)(f), "authorized statutory office" (認可法定職位) means- 
(a)	the Insurance Authority under the Insurance Companies Ordinance (Cap 41);   (Amended 10 of 1989 s. 65) 
(b)	the Securities and Futures Commission; or  (Replaced 10 of 1989 s. 65) 
(c)	the Mandatory Provident Fund Schemes Authority established by section 6 of the Mandatory Provident Fund Schemes Ordinance (Cap 485).  (Added 4 of 1998 s. 7) 
(d)	(Repealed 10 of 1989 s. 65)
(Added 68 of 1988 s. 2. Amended 4 of 1998 s. 7)
(5B)	The Legislative Council may, by resolution, amend subsection (5A).  (Added 68 of 1988 s. 2) 
(5C)	The Monetary Authority may attach a condition to any disclosure of information made pursuant to subsection (5)(b), (c), (d), (e), (f), (fa) or (ga) and shall attach a condition to any disclosure of information made pursuant to subsection (5)(g), that neither-  (Amended 49 of 1995 s. 36; 6 of 2002 s. 12) 
(a)	the person to whom the information has been disclosed; nor 
(b)	any person obtaining or receiving the information (whether directly or indirectly) from the person referred to in paragraph (a), 
shall disclose that information to any other person without the consent of the Monetary Authority.  (Added 95 of 1991 s. 40) 
(5D)	Subsection (5)(h) shall not operate to require the Monetary Authority to disclose in or in relation to any civil proceedings any information which he may disclose, or has disclosed, pursuant to that subsection.  (Added 95 of 1991 s. 40. Amended 94 of 1993 s. 28) 
(6)	Any person who- 
(a)	contravenes subsection (1); 
(b)	aids, abets, counsels or procures any person to contravene subsection (1); or 
(c)	knowing that the condition referred to in subsection (5C) has been attached to a disclosure of information made pursuant to subsection (5), contravenes, or aids, abets, counsels or procures any person to contravene, that condition,  (Added 95 of 1991 s. 40) 
commits an offence and is liable- 
(i)	on conviction upon indictment to a fine at tier 8 and to imprisonment for 2 years; or
(ii)	on summary conviction to a fine at tier 5 and to imprisonment for 6 months.  (Amended 4 of 1997 s. 27)
(7)	Subsection (5)(a), (e) and (g) shall apply to and in relation to approved money brokers and former approved money brokers as it applies to and in relation to authorized institutions and former authorized institutions respectively, and the other provisions of this Ordinance shall be construed accordingly. (Added 4 of 1997 s. 17)
(Amended 3 of 1990 s. 46; 82 of 1992 s. 20)

Chapter:
	155	Title:
	BANKING ORDINANCE	Gazette Number:
	L.N. 16 of 2003	
Schedule:
	8	Heading:
	GROUNDS FOR REVOCATION OF AUTHORIZATION
	Version Date:
	01/04/2003

[sections 22(1) & 135(1)]

1.	In this Schedule, "controller" (控權人) includes a minority shareholder controller. 
 
*2.	The Monetary Authority is satisfied that, if the authorized institution were not authorized and were to make an application under section 15 for authorization in respect of the business referred to in that section presently being carried on by it, section 16(2) would prohibit him from so authorizing it (but excluding the criteria specified in paragraphs 2(b) and 13 of the Seventh Schedule). 
 
3.	The Monetary Authority is satisfied that the authorized institution proposes to make, or has made, any composition or arrangement with its creditors or is insolvent or is being or has been wound up or is otherwise dissolved. 
 
4.	The authorized institution has made a report to the Monetary Authority under section 67 that it is likely to become unable to meet its obligations or is about to suspend payment or the Monetary Authority is satisfied that the institution is so unable or has suspended payment. 
 
5.	The Monetary Authority is satisfied that the authorized institution has not provided him, whether before or after being authorized, with such information of a material nature relating to it, and to any circumstances likely to affect its method of business, as is required under this Ordinance. 
 
6.	The Monetary Authority is satisfied that the authorized institution has provided him, whether before or after being authorized, with information which is, to a material extent, false, misleading or inaccurate, and whether or not such information was so provided pursuant to a requirement under this Ordinance. 
 
7.	The Monetary Authority is satisfied that the authorized institution has contravened any condition attached under section 16 of this Ordinance to its authorization. 

8.	The Monetary Authority is satisfied that the authorized institution has- 
(a)	in the case of a bank, ceased to carry on banking business; 
(b)	in any other case, ceased to carry on a business of taking deposits.

9.	The objects of the authorized institution as stated in its memorandum and articles of association or other document constituting the company no longer include the object of- 
(a)	in the case of a bank, carrying on banking business; 
(b)	in any other case, carrying on a business of taking deposits. 

10.	The authorized institution has failed to pay any fee required by section 19 to be paid by it after being advised in writing by the Monetary Authority that it is contravening that section. 

11.	The authorized institution has failed to comply with any requirement under section 60 applicable to it after being advised in writing by the Monetary Authority that it is contravening that section. 

12.	In the case of an authorized institution which is a deposit-taking company or restricted licence bank, the institution has contravened section 14(1) or (3). 
 
13.	A person has become a controller of the authorized institution after having been served with a notice of objection, within the meaning of section 70, objecting to his becoming such a controller. 
 
14.	A person continues to be a controller of the authorized institution after having been served with a notice of objection, within the meaning of section 70 or 70A, objecting to his being such a controller. 
 
15.	A person has become or continues to be a chief executive or director of the authorized institution in contravention of section 71. 

15A.	A person has become or continues to be an executive officer of the authorized institution in contravention of section 71C.  (Added 6 of 2003 s. 15)

16.	The authorized institution is in contravention of section 74. 
 
17.	The authorized institution engages in business practices specified in a notice under section 82(1). 
 
18.	The Monetary Authority is satisfied that the interests of depositors or potential depositors of the authorized institution are in any other manner threatened by the institution continuing to be authorized. 
 
19.	The authorized institution requests in writing the Monetary Authority to revoke its authorization and the Monetary Authority is satisfied that the interests of depositors of the institution are or will be adequately safeguarded if he complies with that request. 

20.	The Monetary Authority is satisfied that the authorized institution engages in business practices which would be likely to prejudice the interests of Hong Kong as an international financial centre. 
(Eighth Schedule added 49 of 1995 s. 52)
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*	The operation of this paragraph is affected by the Banking Ordinance (Amendment of Seventh Schedule) Notice 2002 (L.N. 63 of 2002). See the transitional provision in section 2 of that Notice.

Chapter:
	571	Title:
	SECURITIES AND FUTURES ORDINANCE	Gazette Number:
	L.N. 12 of 2003	
Section:
	87	Heading:
	Subrogation of recognized investor compensation company to rights, etc. of claimant on payment from compensation fund
	Version Date:
	01/04/2003

(1)	Where a recognized investor compensation company makes any payment out of the compensation fund in respect of any claim made under rules made under Part XII-
(a)	the company shall be subrogated, to the extent which that payment bears to the loss sustained (without taking into account any compensation paid or payable out of the compensation fund for the loss) by the claimant by reason of the default on which the claim was based, to all the rights and remedies of the claimant in relation to the loss; and
(b)	the respective rights of the claimant and the company in bankruptcy or winding up or by legal proceedings or otherwise to receive in respect of the loss-
(i)	any sum out of the assets of the person concerned who is in default; or
(ii)	any property held on trust by that person for the claimant,
shall rank equally.
(2)	All assets (whether in cash or otherwise) recovered by the recognized investor compensation company under subsection (1) shall be dealt with in such manner as the Commission may direct and shall become part of the compensation fund.

Chapter:
	571	Title:
	SECURITIES AND FUTURES ORDINANCE	Gazette Number:
	L.N. 12 of 2003	
Section:
	243	Heading:
	Subrogation of the Commission to rights, etc. of claimant on payment from
compensation fund
	Version Date:
	01/04/2003

(1)	Where the Commission makes any payment out of the compensation fund in respect of any claim for compensation made under rules made under this Part-
(a)	the Commission shall be subrogated, to the extent which that payment bears to the loss sustained (without taking into account any compensation paid or payable out of the compensation fund for the loss) by the claimant by reason of the default on which the claim was based, to all the rights and remedies of the claimant in relation to the loss; and
(b)	the respective rights of the claimant and the Commission in bankruptcy or winding up or by legal proceedings or otherwise to receive in respect of the loss-
(i)	any sum out of the assets of the person concerned who is in default; or
(ii)	any property held on trust by that person for the claimant,
shall rank equally.
(2)	All assets (whether in cash or otherwise) recovered by the Commission under subsection (1) shall become part of the compensation fund.

Chapter:
	571	Title:
	SECURITIES AND FUTURES ORDINANCE	Gazette Number:
	L.N. 12 of 2003	
Section:
	378	Heading:
	Preservation of secrecy, etc.
	Version Date:
	01/04/2003

PART XVI

MISCELLANEOUS

Division 1-Secrecy, conflict of interests, and immunity

(1)	Except in the performance of a function under, or for the purpose of carrying into effect or doing anything required or authorized under, any of the relevant provisions, a specified person-
(a)	shall preserve and aid in preserving secrecy with regard to any matter coming to his knowledge by virtue of his appointment under any of the relevant provisions, or in the performance of any function under or in carrying into effect any of the relevant provisions, or in the course of assisting any other person in the performance of any function under or in carrying into effect any of the relevant provisions;
(b)	shall not communicate any such matter to any other person; and
(c)	shall not suffer or permit any other person to have access to any record or document which is in his possession by virtue of the appointment, or the performance of any such function under or the carrying into effect of any such provisions, or the assistance to the other person in the performance of any such function under or in carrying into effect any such provisions.
(2)	Nothing in subsection (1) applies to-
(a)	the disclosure of information which has already been made available to the public;
(b)	the disclosure of information with a view to the institution of, or otherwise for the purposes of, any criminal proceedings, or any investigation carried out under the laws of Hong Kong, in Hong Kong;
(c)	the disclosure of information for the purpose of seeking advice from, or giving advice by, counsel or a solicitor or other professional adviser acting or proposing to act in a professional capacity in connection with any matter arising under any of the relevant provisions;
(d)	the disclosure of information by a person in connection with any judicial or other proceedings to which the person is a party;
(e)	the disclosure of information in accordance with an order of a court, or in accordance with a law or a requirement made under a law;
(f)	the communication of any information or opinion to which section 381(1) applies (whether with or without reference to section 381(2))-
(i)	to the Commission in the manner described in section 381(1);
(ii)	where section 381(4) applies, to the Insurance Authority or the Monetary Authority (as the case may be) in the manner described in section 381(4).
(3)	Notwithstanding subsection (1), the Commission may disclose information-
(a)	in the form of a summary compiled from any information in the possession of the Commission, including information provided by persons under any of the relevant provisions, if the summary is so compiled as to prevent particulars relating to the business or identity, or the trading particulars, of any person from being ascertained from it;
(b)	to a person who is a liquidator appointed under the Companies Ordinance (Cap 32);
(c)	to the Market Misconduct Tribunal;
(d)	to the Securities and Futures Appeals Tribunal;
(e)	to the Monetary Authority, if-
(i)	the information relates to-
(A)	any business of a registered institution which constitutes a regulated activity for which the registered institution is registered; or
(B)	any business of an associated entity that is an authorized financial institution, which is that of receiving or holding client assets of the intermediary of which the associated entity is an associated entity; or
(ii)	in the opinion of the Commission the condition specified in subsection (5) is satisfied;
(f)	if in the opinion of the Commission the condition specified in subsection (5) is satisfied, to-
(i)	the Chief Executive;
(ii)	the Financial Secretary;
(iii)	the Secretary for Justice;
(iv)	(Repealed L.N. 106 of 2002);
(v)	the Insurance Authority;
(vi)	the Registrar of Companies;
(vii)	the Official Receiver;
(viii)	the Mandatory Provident Fund Schemes Authority;
(ix)	the Privacy Commissioner for Personal Data;
(x)	the Ombudsman;
(xi)	a public officer authorized by the Financial Secretary under subsection (12);
(xii)	an inspector appointed by the Financial Secretary to investigate the affairs of a corporation;
(xiii)	a recognized exchange company;
(xiv)	a recognized clearing house;
(xv)	a recognized exchange controller;
(xvi)	a recognized investor compensation company;
(xvii) a person authorized to provide authorized automated trading services under section 95(2);
(g)	if in the opinion of the Commission the condition specified in subsection (5) is satisfied-
(i)	to an authority or regulatory organization outside Hong Kong which, or to a companies inspector outside Hong Kong who, in the opinion of the Commission satisfies the requirements referred to in subsection (6)(a) and (b);
(ii)	to-
(A)	the Hong Kong Society of Accountants;
(B)	any other body prescribed by rules made under section 397 for the purposes of this subparagraph,
	with a view to its taking of, or otherwise for the purposes of, any disciplinary action against any of its members;
(h)	to a person who is or was an auditor appointed under any provision of this Ordinance, for the purpose of enabling or assisting the Commission to perform its functions under any of the relevant provisions;
(i)	where the information is obtained by an investigator under section 183, to-
(i)	the Financial Secretary;
(ii)	the Secretary for Justice;
(iii)	the Commissioner of Police;
(iv)	the Commissioner of the Independent Commission Against Corruption;
(v)	the Market Misconduct Tribunal;
(vi)	the Securities and Futures Appeals Tribunal;
(j)	for the purpose of, or otherwise in connection with, an audit required by section 16;
(k)	with the consent of the person from whom the information was obtained or received and, if the information relates to a different person, also with the consent of the person to whom the information relates.
(4)	Notwithstanding subsection (1), a person who is or was an auditor appointed in relation to a licensed corporation or an associated entity of a licensed corporation under section 159 or 160, and a person who is or was an employee or agent of such auditor, may disclose information obtained or received by him in the course of performing his duties as such auditor or as an employee or agent of such auditor (as the case may be)-
(a)	for the purposes of any judicial or other proceedings arising out of the performance of his duties as such auditor or as an employee or agent of such auditor (as the case may be);
(b)	in the case of a person who is or was an employee or agent of an auditor, to the auditor.
(5)	The condition referred to in subsection (3)(e), (f) and (g) is that-
(a)	it is desirable or expedient that the information should be disclosed pursuant to subsection (3)(e), (f) or (g) (as the case may be) in the interest of the investing public or in the public interest; or
(b)	the 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 to the public interest that the information should be so disclosed.
(6)	Where the Commission is satisfied, for the purposes of subsection (3)(g)(i), that an authority, regulatory organization or companies inspector outside Hong Kong-
(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 reasonably practicable thereafter cause the name of the authority, regulatory organization or companies inspector (as the case may be) to be published in the Gazette.
(7)	Where information is disclosed pursuant to subsection (1), or in any of the circumstances described in subsection (2), (3) or (4) (other than subsections (2)(a), (3)(a), (g)(i) and (k) and (4)(b))-
(a)	 the person to whom that information is so disclosed; or
(b)	any other person obtaining or receiving the information, whether directly or indirectly, from the person referred to in paragraph (a),
shall not disclose the information, or any part thereof, to any other person, unless-
(i)	the Commission consents to the disclosure;
(ii)	the information or the part thereof (as the case may be) has already been made available to the public;
(iii)	the disclosure is for the purpose of seeking advice from, or giving advice by, counsel or a solicitor or other professional adviser acting or proposing to act in a professional capacity in connection with any matter arising under any of the relevant provisions;
(iv)	the disclosure is in connection with any judicial or other proceedings to which the person or the other person referred to in paragraph (a) or (b) (as the case may be) is a party; or
(v)	the disclosure is in accordance with an order of a court, or in accordance with a law or a requirement made under a law.
(8)	Where information is disclosed to an auditor in the circumstances described in subsection (4)(b)-
(a)	the auditor; or
(b)	any other person obtaining or receiving the information, whether directly or indirectly, from the auditor,
shall not disclose the information, or any part thereof, to any other person, unless-
(i)	in the case of the auditor, the disclosure is for the purpose described in subsection (4)(a);
(ii)	the Commission consents to the disclosure;
(iii)	the information or the part thereof (as the case may be) has already been made available to the public;
(iv)	the disclosure is for the purpose of seeking advice from, or giving advice by, counsel or a solicitor or other professional adviser acting or proposing to act in a professional capacity in connection with any matter arising under any of the relevant provisions;
(v)	the disclosure is in connection with any judicial or other proceedings to which the auditor or the other person referred to in paragraph (a) or (b) (as the case may be) is a party; or
(vi)	the disclosure is in accordance with an order of a court, or in accordance with a law or a requirement made under a law.
(9)	The Commission, in disclosing any information in any of the circumstances described in subsection (3) or in granting any consent pursuant to subsection (7)(i) or (8)(ii), may impose such conditions as it considers appropriate.
(10)	A person who contravenes subsection (1) commits an offence and is liable-
(a)	on conviction on indictment to a fine of $1000000 and to imprisonment for 2 years; or
(b)	on summary conviction to a fine at level 6 and to imprisonment for 6 months.
(11)	Where a person discloses any information in contravention of subsection (7) or (8) and, at the time of the disclosure-
(a)	in the case of a contravention of subsection (7), he-
(i)	knew or ought reasonably to have known that the information was previously disclosed to him or any other person (as the case may be) pursuant to subsection (1), or in any of the circumstances described in subsection (2), (3) or (4) (other than subsections (2)(a), (3)(a), (g)(i) and (k) and (4)(b)); and
(ii)	had no reasonable grounds to believe that subsection (7)(i), (ii), (iii), (iv) or (v) applies to the disclosure of the information by him; or
(b)	in the case of a contravention of subsection (8), he-
(i)	knew or ought reasonably to have known that the information was previously disclosed to him or an auditor (as the case may be) in the circumstances described in subsection (4)(b); and
(ii)	had no reasonable grounds to believe that subsection (8)(i), (ii), (iii), (iv), (v) or (vi) applies to the disclosure of the information by him,
he commits an offence and is liable-
(i)	on conviction on indictment to a fine of $1000000 and to imprisonment for 2 years; or
(ii)	on summary conviction to a fine at level 6 and to imprisonment for 6 months.
(12)	The Financial Secretary may authorize any public officer as a person to whom information may be disclosed under subsection (3)(f)(xi).
(13)	Any matter published under subsection (6) is not subsidiary legislation.
(14)	For the avoidance of doubt, it is hereby declared that subsection (1) does not preclude the disclosure of information under a reprimand under section 194(1)(iii) or 196(1)(ii).
(15)	In this section-
"companies inspector" (公司審查員), in relation to a place outside Hong Kong, means a person whose functions under the laws of that place include the investigation of the affairs of a corporation carrying on business in that place;
"specified person" (指明人士) means-
(a)	the Commission;
(b)	any person who is or was a member, an employee, or a consultant, agent or adviser, of the Commission; or
(c)	any person who is or was-
(i)	a person appointed under any of the relevant provisions;
(ii)	a person performing any function under or carrying into effect any of the relevant provisions; or
(iii)	a person assisting any other person in the performance of any function under or in carrying into effect any of the relevant provisions.

Chapter:
	571T	Title:
	SECURITIES AND FUTURES (INVESTOR COMPENSATION-CLAIMS) RULES	Gazette Number:
	L.N. 215 of 2002; L.N. 12 of 2003	
Section:
	4	Heading:
	Making a claim for compensation
	Version Date:
	01/04/2003

(1)	Where a qualifying client of a specified person sustains a loss-
(a)	as a result of a default committed on or after the appointed day by-
(i)	the specified person; or
(ii)	an associated person of the specified person;
(b)	in relation to-
(i)	specified securities or futures contracts; or
(ii)	related assets,
the qualifying client may claim compensation from the compensation fund in respect of such loss.
(2)	A claim under subsection (1) may include a claim for the costs reasonably incurred in and incidental to the making and proving of the claim.
(3)	A claim under subsection (1) shall be lodged with the Commission-
(a)	if a notice under section 3(1) has been published, on or before the date specified in the notice; or
(b)	if no such notice has been published, within 6 months after the day the claimant first became aware of the default giving rise to the claim.
(4)	A claim which is not lodged within the time limit provided in subsection (3) is barred, unless the Commission determines otherwise.