TNAG-1487-FCO40-2044-Hong-Kong-banking-Banking-Bill-1986-1986 — Page 62

A204

Application of

sections of

Ordinance to

unincorporated

banks.

Prohibition on use of word "bank".

Prohibition on total of deposits.

Death of member

bank.

Ord. No. 27/86

BANKING

112. 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, 88, 90 and 91;

(c) section 65;

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

(e) Parts XVII and XVIII; and

() 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.

113. (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.

114. (1) An unincorporation bank shall not accept or hold deposits in excess, at any one time, of $2,000,000 or such other sum as the Governor in Council may from 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.

115. (1) Upon the death of a member or partner of an unincorporated bank, of unincorporated the banking licence issued to the unincorporated bank shall become void and of no 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 107 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.

116. Where-

BANKING

Ord. No. 27/86

(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

A205

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,

then-

(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;

(ii) section 45(1) of the Bankruptcy Ordinance shall apply as if it included, as an alternative to the reference to notice of the presentation of any bank- ruptcy petition by or against the debtor or notice of the commission of any available act of bankruptcy by the debtor, a reference, in the case of a debtor which is an unincorporated bank, to notice that the Commis- sioner or such other person as is referred to in paragraph (a) has so assumed control of the business of the debtor;

(iii) section 49(1) of the Bankruptcy Ordinance shall apply as if it included, as an alternative to the reference to the person first referred to therein being adjudged bankrupt on a bankruptcy petition presented within 3 months after the date specified therein, a reference, in a case where such person is an unincorporated bank, to the assumption as aforesaid by the Commissioner or such other person as is referred to in paragraph (a) of control of the business of such person within 3 months after such date;

(iv) section 50(1) of the Bankruptcy Ordinance shall apply as if it included, as an alternative to the reference in sub-paragraph (ii) of the proviso thereto to notice of any available act of bankruptcy committed by the bankrupt before the time referred to therein, a reference, in the case of a bankrupt which is an unincorporated bank, to notice that, before the said time, the Commissioner or such other person as is referred to in paragraph (a) has so assumed control of the business of the bankrupt;

(v) section 51 of the Bankruptcy Ordinance shall apply as if it included, as an alternative to the reference to notice of the presentation of a bankruptcy petition, a reference, in a case where the person referred to therein is an unincorporated bank, to notice that the Commissioner or such other person as is referred to in paragraph (a) has so assumed control of the business of such person; and

(vi) sections 129, 133, 134, 135 and 136 of the Bankruptcy Ordinance shall apply as if, in a case where the person referred to therein is an unincorporated bank, the reference or references therein to the presentation of a bankruptcy petition included in each case a reference to the assumption as aforesaid by the Commissioner or such other person as is referred to in paragraph (a) of control of the business of such person.