56
57
Liability in tort for inducing
persons to deposit money in certain
cases.
(b) any promise-
(i) which the maker of the promise had no intention of fulfilling;
(ii) which, to the knowledge of the maker of the promise, was not capable of being fulfilled; or
(iii) which was made recklessly;
(c) any forecast-
(i) which, to the knowledge of the maker of the forecast, was not justified on the basis of facts known to him at the time when he made it; or
(ii) which was not justified on the facts known to the maker of the forecast at the time when he made it and was made recklessly; or
(d) any statement or forecast from which the maker intentionally or recklessly omitted a material fact with the result that the statement or forecast was thereby rendered false, misleading or deceptive.
98. (1) Any person who, by any fraudulent, reckless or negligent misrepresen- tation, induces another person to deposit money with him or any other person shall be liable to pay compensation to the person so induced for any pecuniary loss that such person has sustained by reason of his reliance on that misrepresentation.
(2) For the purposes of subsection (1), "fraudulent, reckless or negligent misrepresentation" means—
(a) any statement-
(i) which, to the knowledge of the maker of the statement, was false, misleading or deceptive;
(ii) which was false, misleading or deceptive and was made recklessly; or (iii) which was false, misleading or deceptive and was made without reasonable care having been taken to ensure its accuracy;
(b) any promise-
(i) which the maker of the promise had no intention of fulfilling;
(ii) which, to the knowledge of the maker of the promise, was not capable of being fulfilled; or
(iii) which was made recklessly or without reasonable care having been taken to ensure that it could be fulfilled;
(c) any forecast-----
(i) which, to the knowledge of the maker of the forecast, was not justified on the basis of facts known to him at the time when he made it; or
(ii) which was not justified on the facts known to the maker of the forecast at the time when he made it and was made recklessly or without reasonable care having been taken to ascertain the accuracy of those facts;
or
(d) any statement or forecast from which the maker intentionally, recklessly or negligently omitted a material fact with the result that the statement or forecast was thereby rendered false, misleading or deceptive.
(3) For the purposes of this section-
(a) where any statement, promise or forecast to which this section relates was made by a company, every person who was a director of the company at the time when the statement, promise or forecast was made shall, until the contrary is proved, be deemed to have caused or permitted it to be made; and
(b) a person is deemed to be a director of a company if he occupies the position of a director, whatever the title of his office, or he is a controller of the company; but a person shall not, by reason only that the directors of a company act on advice given by him in a professional capacity, be taken to be a controller of the company.
(4) This section does not affect any liability of any person at common law.
(5) An action may be brought under this section notwithstanding that the evidence on which the action is or will be based, if substantiated, discloses the commission of an offence and no person has been charged with or convicted of the offence.
(6) For the purposes of this section "company" means, in addition to a company as defined in section 2, any other body of persons, corporate or unincorporate.
99. (1) Where the Commissioner is of the opinion that any advertisement False, etc. issued in connexion with the business of an authorized institution makes a statement advertisements by
authorized or any representation that is false, misleading or deceptive, he may, by notice in institution. writing served on the institution, require the institution to cease issuing such advertisements and an authorized institution served with such a notice shall, accordingly, comply with that notice.
(2) Every director and every manager of an authorized institution which fails or refuses to comply with any notice served under this section on it commits an offence and is liable-
(a) on conviction upon indictment to a fine of $200,000 and to imprisonment for 2 years and, in the case of a continuing offence, to a further fine of $10,000 for every day during which the offence continues; or
(b) on summary conviction to a fine of $50,000 and to imprisonment for 6 months and, in the case of a continuing offence, to a further fine of $5,000 for every day during which the offence continues.
100. (1) An authorized institution shall not in any communication, whether Certain written or oral, represent or imply, or permit to be represented or implied, in any representations manner to any person that the institution has in any respect been approved by the prohibited. Government, the Financial Secretary or the Commissioner.
(2) Subsection (1) is not contravened by reason only that a statement is made to the effect that an authorized institution is licensed or registered.
(3) Every director and every manager of an authorized institution which contravenes subsection (1) without reasonable excuse commits an offence and is liable-
(a) on conviction upon indictment to a fine of $200,000 and to imprisonment
for 2 years; or
(b) on summary conviction to a fine of $50,000 and to imprisonment for 6
months.
use of title
"bank".
101. (1) Any person, other than a licensed bank, a bank incorporated outside Restrictions on Hong Kong which is recognized as the central bank of the place in which it is incorporated, or a local representative office maintained in accordance with this Ordinance, who, without the written consent of the Commissioner—
(a) uses the word "bank" or any of its derivatives in English, or any translation thereof in any language or uses the Chinese expression "ngan hong" (17), or uses the letters "b", "a", "n", "k" in that order, in the description or title under which such person is carrying on business in Hong Kong; or
(b) makes any representation in any bill head, letter paper, notice, advertisement or in any other manner whatsoever that such person is a bank or is carrying on banking business in Hong Kong,
commits an offence and is liable-
(i) on conviction upon indictment to a fine of $200,000 and to imprisonment
for 12 months; or
(ii) on summary conviction to a fine of $50,000 and to imprisonment for 6
months.