A196
Ord. No. 27/86
BANKING
BANKING
Ord. No. 27/86
A 197
Proof of
compliance with sections 81, 83, 84, 87, 88, 89 and 90.
Offence to issue advertisements and documents relating to deposits.
shall not at any time exceed 80 per cent of the paid-up capital and reserves of a bank.
(2) In assessing the aggregate total which is permissible under subsection (1) there shall not be taken into account any matter which is excluded from the operation of section 83, 87 or 88 by virtue of any of the provisions thereof or of section 79(2).
(3) Every director and every manager of a bank which contravenes this section 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.
91. (1) Any authorized institution, if at any time called upon in writing by the Commissioner so to do, shall satisfy him by the production of such evidence or information as he may require, that—
(a) in the case of an authorized institution which is a bank, the bank is not in
contravention of any of the provisions of section 81, 83, 87, 88 or 90; and
(b) in the case of an authorized institution which is a deposit-taking company, the deposit-taking company is not in contravention of any of the provisions of section 81, 84, 87, 88 or 89.
(2) Any authorized institution, if at any time called upon in writing by the Commissioner so to do, shall satisfy him by the production of such evidence or information as he may require, whether or not the institution is engaging in any business practices specified in a notice under section 82.
(3) Every director and every manager of an authorized institution which fails or refuses without reasonable excuse to comply with subsection (1) or (2) 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.
PART XVI
ADVERTISEMENTS, REPRESENTATIONS AND USE OF TITLE "BANK"
92. (1) Subject to subsection (5), no person shall—
(a) issue, or have in his possession for the purposes of issue, any advertisement which to his knowledge is or contains an invitation to members of the public-
(i) to make any deposit; or
(ii) to enter into, or offer to enter into, any agreement to make any deposit;
(b) issue, or have in his possession for the purposes of issue, any document
which to his knowledge contains such an advertisement; or
(c) in any other manner issue or make an invitation to members of the public to
do any of the acts referred to in paragraph (a).
(2) Any person who contravenes subsection (1) commits an offence and is liable on conviction upon indictment or on summary conviction to a fine of $10,000.
(3) For the purposes of any proceedings under this section, an advertisement or document in which a person named in the advertisement or document holds himself out as being prepared to take in Hong Kong any deposit shall, subject to sub- section (4), be presumed, unless such named person proves to the contrary, to have been issued by him.
(4) A person shall not be taken to contravene this section by reason only that he issues, or has in his possession for the purposes of issue, to purchasers copies of any newspaper, magazine, journal or other periodical publication of general and regular circulation, which contain an advertisement to which this section applies.
(5) This section shall not apply to-
(a) any advertisement to make a deposit or to enter into, or offer to enter into,
any agreement to make a deposit with an authorized institution; or
(b) any advertisement or invitation, or any document containing any advertise-
ment or invitation, to which section 4(1) of the Protection of Investors (Cap. 335.) Ordinance would, but for section 4(2)(g) of that Ordinance, apply.
93. (1) Any person who, by any fraudulent or reckless misrepresentation, Fraudulent induces another person-
inducement to make a deposit.
(a) to make a deposit with him or any other person; or
(b) to enter into or to offer to enter into any agreement to make a deposit with
him or any other person,
commits an offence and is liable on conviction upon indictment to a fine of $1,000,000 and to imprisonment for 7 years.
(2) For the purposes of subsection (1), "fraudulent or reckless misrepresenta- tion" means-----
(a) any statement-
(i) which, to the knowledge of the maker of the statement, was false, misleading or deceptive; or
(ii) which was false, misleading or deceptive and was made recklessly;
(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.
94. (1) Any person who, by any fraudulent, reckless or negligent misrepresen- Liability in tort tation, induces another person to make a deposit with him or any other person shall for inducing
be liable to pay compensation to the person so induced for any pecuniary loss that persons to make a 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-
deposit in certain cases.
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