TNAG-1487-FCO40-2044-Hong-Kong-banking-Banking-Bill-1986-1986 — Page 59

A198

Ord. No. 27/86

BANKING

BANKING

Ord. No. 27/86

A 199

False, etc.

advertisements by authorized institution.

(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, where any statement, promise or forecast to which this section relates was made by a company, every person who was a director or controller 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.

(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.

95. (1) Where the Commissioner is of the opinion that any advertisement issued in connexion with the business of an authorized institution makes a statement or any representation that is false, misleading or deceptive, he may, by notice in writing served on the institution, require the institution to withdraw or, as the circumstances require, remove, and to cease issuing such advertisements and an authorized institution served with such a notice shall, accordingly, comply with that notice.

(2) Any authorized institution aggrieved by a notice served under subsection (1) may appeal to the Financial Secretary against the requirement contained therein, but the notice shall take effect immediately notwithstanding that an appeal has been or may be made under this subsection.

(3) 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.

96. (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

prohibited. manner to any person that the institution has in any respect been approved by the 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.

97. (1) Any person, other than a bank, an institution 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" (RT), 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 other manner whatsoever that such person is a bank or is carrying

any 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.

(2) Nothing in this section shall apply to any association of banks formed for the protection or promotion of their mutual interests or to any association of employees of banks formed for the protection or promotion of the mutual interests of such employees.

PART XVII

CAPITAL ADEQUACY

RATIO OF AUTHORIZED INSTITUTIONS

Restrictions on use of title

"bank".

98. (1) Subject to this Part and Part X, an authorized institution incorporated Capital adequacy

in Hong Kong shall not, at any time, have a capital adequacy ratio of less than 5 ratio. per cent as calculated in accordance with the provisions of the Third Schedule and Third Schedule. subsection (2):

(2) For the purposes of calculating the capital adequacy ratio of an authorized institution which has any subsidiary, the accounts of the institution are not required to be on a consolidated basis unless the Commissioner otherwise determines in any particular case.

(3) The Financial Secretary may, by notice in the Gazette, vary the percentage specified in subsection (1).