TNAG-1487-FCO40-2044-Hong-Kong-banking-Banking-Bill-1986-1986 — Page 305

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General application of Ordinance to

unincorporated banks and members.

Application of

sections of Ordinance to unincorporated banks.

Prohibition on use of work "bank”.

BANKING BILL

(b) to make a report to the directors of the bank on the audited accounts, the

balance sheet and the profit and loss account of the bank; and

(c) in every such report to state-

(i) whether or not all the information and explanations which were in the opinion of the auditor necessary for the purposes of the audit have been obtained;

(i) whether or not, according to the best of the information and explanations given to him, the balance sheet and profit and loss account referred to in the report give in his opinion a true and fair view of the state of the affairs of the bank at the date of the balance sheet, and of the profit or loss for its financial year, regard being had, inter alia, to the provisions of this Ordinance;

(iii) whether or not in his opinion proper books of account have been kept by the bank so far as appears from the audit of the accounts; and

(iv) whether or not in his opinion proper returns, adequate for the purposes of the audit, have been received by him from branches of the bank not visited.

(3) Every director and every manager of a bank which contravenes subsec- tion (1) commits an offence and is liable-

(a) on conviction upon indictment to a fine of $200,000 and to imprisonment

for 2 years; or

(b) on summary conviction to a fine of $50,000 and to imprisonment for 6

months.

115. (1) An unincorporated bank shall, subject to the provisions of this Part, be deemed to be a bank for the purposes of this Ordinance.

(2) Any person to whom, and any member or partner of any unincorporated body of persons to which, a banking licence is granted under section 111 shall be deemed for the purposes of this Ordinance to be a director of a bank.

116. An unincorporated bank shall, subject to the provisions of this Ordinance, be subject to all the provisions of this Ordinance, mutatis mutandis, except—

(a) section 55(2)(a);

(b) sections 75, 76, 77, 78, 79, 80, 81, 83, 85, 86, 87, 89, 92, 93 and 95;

(c) section 65;

(d) section 60(1)(c);

(e) Parts XVII and XVIII; and

(f) any other provision of this Ordinance which is inconsistent with the provisions of this Part or which is inapplicable in the case of an unincor- porated bank.

117. (1) An unincorporated bank shall not use the word "bank" or any of its derivatives in English, or any translation thereof in any language or use the Chinese expression "ngan hong" (T), or use the letters "b", "a", "n", "k" in that order, in the description or title under which it carries on business in Hong Kong.

(2) Every director and every manager of an unincorporated bank which contravenes subsection (1) commits an offence and is liable—

(a) on conviction upon indictment to a fine of $100,000 and to imprisonment

for 2 years; or

(b) on summary conviction to a fine of $50,000 and to imprisonment for 6

months.

BANKING BILL

118. (1) An unincorporation bank shall not accept or hold deposits in excess, at

C185

Prohibition on

any one time, of $2,000,000 or such other sum as the Governor in Council may from total of deposits. time to time specify either generally or in any particular case.

(2) Every director and every manager of a bank which contravenes subsec-

tion (1) commits an offence and is liable-

(a) on conviction upon indictment to a fine of $100,000 and to imprisonment

for 12 months; or

(b) on summary conviction to a fine of $50,000 and to imprisonment for 6

months,

and, in the case of a continuing offence, to a further fine of $5,000 for every day during which the offence continues.

119. (1) Upon the death of a member or partner of an unincorporated bank, Death of member the banking licence issued to the unincorporated bank shall become void and of no of unincorporated effect upon a date 6 calendar months after the date of the death except for the purpose

of winding-up the banking business of the unincorporated bank.

(2) Notwithstanding subsection (1), the Governor in Council may issue a new banking licence under section 111 to the remaining members or partners of that body of persons or to a body of persons consisting of the remaining members of that body of persons and other members or partners who have acquired their interest in the business and assets of the unincorporated bank of which the deceased was a member under the will or upon the intestacy of the deceased.

(3) The remaining members or partners of an unincorporated bank shall notify the Commissioner of the death of a member or partner of the unincorporated bank within 1 month after the death.

(4) Every director and every manager of a bank which contravenes subsec- tion (3) commits an offence and is liable on conviction upon indictment or on summary conviction to a fine of $50,000 and, in the case of a continuing offence, to a further fine of $5,000 for every day during which the offence continues.

120. Where-

then-

(a) the Commissioner has assumed control of the business of an authorized institution which is an unincorporated bank under section 52(1)(C) or pursuant to an order of the Governor in Council under section 53(1)(ii) or some other person has assumed control of the business of such a bank pursuant to a direction of the Commissioner under section 52(1)(C) or an order of the Governor in Council under section 53(1)(ii); and

bank.

Bankruptcy of unincorporated banks.

(b) within 3 months thereafter, whilst the Commissioner or such other person continues to be in control of the business of such bank, a bankruptcy petition is presented against the bank under the Bankruptcy Ordinance, and (Cap. 6.) on that petition a receiving order is at any time made under that Ordinance against the bank,

(i) if the date on which the Commissioner or such other person as is referred to in paragraph (a) assumed control of the business of such bank preceded the time of the first of the acts of bankruptcy (within the meaning of the Bankruptcy Ordinance) proved to have been committed by such bank within the 3 months next preceding the date of the presentation of the bankruptcy petition, the bankruptcy of the bank shall, for the purposes of sections 40, 43, 47(2) and (3), and 48, of the Bankruptcy Ordinance, be deemed, notwithstanding the provisions of section 42 of the Bankruptcy Ordinance, to have relation back to and to commence at the time the Commissioner or such other person assumed control of the business of such bank;