A208
Ord. No. 27/86
Governor in Council to decide whether or not banking business or business of taking deposits is being conducted.
Official secrecy.
(Cap. 112.)
BANKING
(b) any reference to a director, manager, employee or agent of a company includes a reference to a person who has been but no longer is a director, manager, employee or agent of that company;
(c) "agent" in relation to a company whose business is under investigation includes its bankers and solicitors and any persons, whether officers of the body or not, who are employed as its auditors.
PART XXI
MISCELLANEOUS
119. (1) In the event of any dispute as to whether a person is carrying on a banking business or a business of taking deposits, the matter, except in the case of a prosecution for any offence against this Ordinance, shall be submitted to the Governor in Council for his determination; and the decision of the Governor in Council shall be final and conclusive for all purposes of this Ordinance.
(2) A submission under subsection (1) may be made by the Financial Secretary or by any bank or deposit-taking company or person which or who is interested in the determination of the matter..
120. (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 who has been appointed under or who is or has been employed in carrying out or in assisting any person to carry out the provisions of this Ordinance-
(a) shall preserve and aid in preserving secrecy with regard to all matters relating to the affairs of any company 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--
(a) any public officer;
(b) any person authorized or employed by the Commissioner under section 8; (c) any person appointed under section 52(1)(B), or by order of the Governor in Council under section 53(1)(ii), to advise an authorized institution in the proper conduct of its business;
(d) any person who has assumed control of the business of an authorized institution pursuant to a direction under section 52(1)(C) or an order of the Governor in Council under section 53(1)(ii);
(e) any person appointed under section 117(2); and
() any person employed by or assisting a person to whom this subsection
applies by virtue of paragraph (b), (c), (d), or (e),
who exercises any function under this Ordinance.
(3) Where under section 52(1)(C) or under section 53(1)(ii) the Commissioner assumes control of and carries on the business of an authorized institution or any other person is directed so to do, subsection (1) shall not apply if the Commissioner or such other person is required to comply with a notice to furnish returns and information under section 51 of the Inland Revenue Ordinance.
BANKING
Ord. No. 27/86
A209
(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, 63 or 64 shall be required to produce in any court any book, account or other document whatsoever or to divulge or communicate to any court any matter or thing coming under his notice in the exercise of his functions under this Ordinance, except as may be necessary in the course of a prosecution for any offence or of a winding-up by the High Court under section 122.
(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 connexion with any other legal proceedings arising out of this Ordinance; (d) to the disclosure of information to the police or the Independent Commis- sion Against Corruption, at the request of the Attorney General, relevant to the proper investigation of any criminal complaint;
(e) to the disclosure of information by the Commissioner to the Registrar, the
Council or the Disciplinary Committee under the Professional Accountants (Cap. 50.) Ordinance in respect of any complaint that can be made under section 34 of that Ordinance in respect of any auditor of an authorized institution, including an auditor appointed under section 59(2) or approved under section 63(3)(b);
(f) to the disclosure of information to the Financial Secretary, the Secretary for Monetary Affairs or to any public officer authorized by the Financial Secretary for the purposes of this paragraph or to the Disciplinary Commit- tee referred to in paragraph (e) where, in the opinion of the Commissioner, is desirable or expedient that information should be disclosed in the interests of depositors or the public interest; or
(g) to the disclosure of information concerning an authorized institution, to its
auditor or former auditor, during a meeting called under section 61.
(6) Any person who-
(a) contravenes subsection (1); or
(b) aids, abets, counsels or procures any person to contravene subsection (1), commits an offence and is liable---
(i) on conviction upon indictment to a fine of $100,000 and to imprisonment
for 2 years; or
(ii) on summary conviction to a fine of $50,000 and to imprisonment for 6
months.
121. (1) Subject to subsection (3) and notwithstanding section 120, the Commis- Disclosure of sioner may, if he considers that it is in the interests of the depositors of the authorized information institution, provide to the appropriate recognized banking supervisory authority of authorized place outside Hong Kong which is, in his opinion, subject to adequate secrecy institutions. provisions in that place information on matters relating to the affairs of an authorized institution--
(a) which is incorporated, or which has its principal place of business, in that
place;
(b) which is incorporated in or outside Hong Kong and is a subsidiary or
associate of a bank incorporated in that place; or