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5.
In the present bill one entity is a deposit taking company and the other is (or will be at the relevant time) a restricted licence bank (i.e. an upgraded deposit taking company). In my view neither entity could be characterised as coming within the common law definition of a bank nor could it be said that either is carrying on banking business. Indeed, both entities are prohibited by the Banking Ordinance (sections 11 & 12) from undertaking any of the activities that the Court of Appeal indicated were the essential activities of banking.
6.
It is for these reasons that I have recently advised that the books of a deposit taking company are not "bankers records" within the meaning of the Evidence
Ordinance.
7.
Undoubtedly in taking medium and long term deposits deposit taking companies and restricted licence banks compete in Hong Kong with banks that also undertake those activities. But those activities are not the ingredients of banking and it would be a surprising interpretation if the term "Banking Association" was defined as including any association that carries on any of the activities also carried on by banks. If it did the term would also refer to travel agents, remittance agents, insurers and investment advisers as all those activities are also carried on by modern banks in Hong Kong.
8.
It is unlikely that those who drafted the Royal Instructions could have had in mind that the term "Banking Association" should have applied to the peculiar Hong Kong institutions of deposit taking companies and restricted licence banks. Roval Instructions are issued to the Governors of all colonies in virtually identical form. The "standard form" Roval Instructions have (according to my research) contained a provision identical
to Clause XXVI (4) for well over a century; long before deposit taking companies and restricted licence banks were conceived.
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