OCCUPATIONAL RETIREMENT SCHEMES Gazette Number … · Long title E.R. 2 of 2014 10/04/2014 An...

Cap 426 - OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE 1

Chapter: 426 OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE

Gazette Number Version Date

Long title E.R. 2 of 2014 10/04/2014

An Ordinance to establish a registration system for certain occupational retirement schemes, to ensure that such schemes are properly regulated, to make certain matters relating to such schemes whose proper law is not the law of Hong Kong justiciable in the Court of First Instance, and to provide for related matters.

(Enacted 1992. Amended 25 of 1998 s. 2)

[The Ordinance other than section 3 } 15 October 1993 Section 3 } 16 October 1995 L.N. 407 of 1993]

(Enacting provision omitted—E.R. 2 of 2014)

(Originally 88 of 1992) Part: I PRELIMINARIES AND RESTRICTION ON

OPERATION OF OCCUPATIONAL RETIREMENT SCHEMES

30/06/1997

(Enacted 1992) Section: 1 Short title E.R. 2 of 2014 10/04/2014

(1) This Ordinance may be cited as the Occupational Retirement Schemes Ordinance. (2)-(4) (Omitted as spent—E.R. 2 of 2014)

(Enacted 1992) Section: 2 Interpretation E.R. 2 of 2014 10/04/2014

(1) In this Ordinance, unless the context otherwise requires- "accrued rights" (累算權益) means, in relation to a member of an occupational retirement scheme, the rights for the

time being conferring entitlement to the receipt by or in respect of him of benefits under the scheme, being the benefits arising as regards the member by reference to the scheme's past service liability to him, on the day concerned;

"actuary" (精算師) means- (a) a Fellow of the Faculty of Actuaries of Scotland; (b) a Fellow of the Institute of Actuaries of England; (c) a Fellow of the Society of Actuaries of the United States of America; (d) a Fellow of the Institute of Actuaries of Australia; and (e) any person who holds such qualification as the Registrar may accept as being of a standard comparable

to that of a person described in paragraph (a), (b), (c) or (d); "administrator" (管理人) means-

(a) in the case of a scheme or pooling agreement governed by a trust, the trustee concerned; (b) in the case of a scheme or pooling agreement which is the subject of or regulated by an insurance

arrangement, the insurer concerned; (c) in any other case, the person who is principally responsible for the management of the scheme and its

assets otherwise than as a person who is solely concerned with the investment or custody of the assets; "aggregate past service liability" (過去服務總負債 ) means, in relation to a particular day and a particular

occupational retirement scheme, the aggregate of the values of the past service liability arising on that day under the scheme as regards every member thereof added together;

"aggregate vested liability" (既有總負債) means, in relation to a particular day and a particular occupational


retirement scheme, the aggregate of the values of the vested liabilities arising on that day under the scheme as regards every member thereof added together;

"Appeal Board" (上訴委員會) means the Occupational Retirement Schemes Appeal Board constituted under section 62;

"associate" (有關連人士) means, in relation to an employer- (a) the spouse or a parent, child, grandparent, grandchild, sister or brother of that employer; (b) a body corporate of which that employer is a director or a shareholder who is entitled, whether directly

or indirectly, to exercise or control the exercise of 20% or more of the voting power at any general meeting of that body corporate;

(c) any person who is a partner of that employer; (d) if that employer is a body corporate-

(i) any director of that body corporate; (ii) any body corporate which is-

(A) a subsidiary; (B) the holding company; or (C) another subsidiary of the holding company, of the employer;

(iii) any director of any such subsidiary or holding company; and (iv) the spouse or a parent, child, grandparent, grandchild, sister or brother of a director referred to in

subparagraphs (i) and (iii); or (e) such other persons as may be specified by the Registrar by rules made under section 73(1);

"auditor" (核數師) means- (a) a Hong Kong accountant; or (b) any person who holds such qualification as the Registrar may accept as being of a standard comparable

to that of a Hong Kong accountant; "authorized insurer" (獲授權保險人) means a person who is an insurer within the meaning of the Insurance

Companies Ordinance (Cap 41) and who is authorized under section 8 of that Ordinance, or is deemed under section 61(1) or (2) of that Ordinance to be so authorized, to carry on insurance business;

"company" (公司) means a company within the meaning of the Companies Ordinance (Cap 622); (Amended 28 of 2012 ss. 912 & 920)

"consultative committee" (諮詢委員會) means a committee constituted under section 34;

"country" (國家) includes any state, province or any territorial entity or part which partly comprises the country;

"the court" (法院) means the Court of First Instance within the meaning of the High Court Ordinance (Cap 4); (Amended 25 of 1998 s. 2)

"declared return" (已公布收益) means, in relation to contributions to the funds of a defined contribution scheme, the interest or return on such contributions which stands credited from time to time to the individual account of a member of the scheme in calculating the amount to which he is entitled under the terms of the scheme and if the facts in any particular case so dictate and the rules of the scheme so permit "declared return" includes negative return;

"defined benefit scheme" (界定利益計劃 ) means an occupational retirement scheme which is not a defined contribution scheme;

"defined contribution scheme" (界定供款計劃) means an occupational retirement scheme which provides that the amount of a benefit under the scheme is to be an amount determined solely by reference to-

(a) the contributions to the scheme's funds by or in respect of the member concerned and any declared return in respect of such contributions (where such return may be subject to a minimum guaranteed rate but is otherwise unascertainable before it is declared); and

(b) where appropriate, the qualifying service and age of the employee; "designated person" (指定人士) in relation to an occupational retirement scheme means a person who has given an

undertaking referred to in section 15(f), 38 or 39(3) as regards the scheme and has not been released under section 40;

"director" (董事) includes- (a) any person who occupies the position of a director, by whatever name called;


(b) any person in accordance with whose directions or instructions the directors of a corporation are accustomed to act; and

(c) in the case of a body of persons which- (i) is incorporated or otherwise established in any manner whatsoever by or under the laws of a

country, territory or place outside Hong Kong; or (ii) has its principal place of business in such a country, territory or place, any person who occupies a position analogous to that of a director of a company within the meaning of the Companies Ordinance (Cap 622); (Amended 31 of 1999 s. 3; 28 of 2012 ss. 912 & 920)

"document" (文件) includes material used in connection with or produced by any equipment which- (a) automatically processes information; (b) automatically records or stores information; (c) can be used to cause information to be automatically recorded, stored or otherwise processed on other

equipment; and (d) can be used to retrieve information, whether the information is recorded or stored in the equipment

itself or in other equipment; "domicile" (本籍) means, in relation to an occupational retirement scheme or trust, the country, territory or place by

whose system of law the scheme or trust is governed; (Amended 31 of 1999 s. 3) "exempted scheme" (獲豁免計劃) means an occupational retirement scheme for which the Registrar has issued an

exemption certificate under section 7 and any withdrawal under section 12 has not come into effect; (Added 53 of 1995 s. 2)

"exemption certificate" (豁免證明書) means a certificate issued under section 7(1);

"existing" (現有) means existing immediately before the commencement of section 1;

"full certificate" (足額證明書) means an actuarial certificate certifying in the manner described in paragraph 1(a) or 2(a) of Part 3 of Schedule 1 or Part 1 of Schedule 2;

"function" (職能) includes power and duty, and performance of a function includes exercise of a power and discharge of a duty;

"group scheme" (集團計劃) means an occupational retirement scheme formed by a grouping of companies in accordance with section 67; (Added 53 of 1995 s. 2)

holding company (控權公司) means, in relation to an employer- (a) (where the employer is a company) a company of which the employer is a subsidiary; (b) (where the employer is not a company but is a body of persons otherwise incorporated or established in

Hong Kong or elsewhere) any other body of persons appearing to the Registrar to be analogous to a company of which the employer would be a subsidiary were the employer a company as defined by section 2(1) of the Companies Ordinance (Cap 622); (Amended 28 of 2012 ss. 912 & 920)

"Hong Kong accountant" (香港會計師) means a certified public accountant registered under the Professional Accountants Ordinance (Cap 50) who holds a valid practising certificate within the meaning of that Ordinance; (Amended 23 of 2004 s. 56)

"Hong Kong domiciled scheme" (以香港為本籍的計劃) means an occupational retirement scheme the domicile of which is Hong Kong;

"Hong Kong permanent identity card holder" (香港永久性居民身分證持有人) means a person holding a permanent identity card within the meaning of the Registration of Persons Ordinance (Cap 177);

"insurance arrangement" (保險安排) means an agreement or arrangement- (a) made in respect of an occupational retirement scheme with an authorized insurer under which the

insurer is responsible for managing the scheme; and (Amended 59 of 1993 s. 20) (b) which is of a class or description specified in rules made by the Registrar;

"liquidator" (清盤人) means a liquidator appointed under section 49;

"member" (成員) includes, in relation to an occupational retirement scheme, an individual who is entitled or prospectively entitled to benefits under the scheme by virtue of-

(a) his employment by the relevant employer (whether past or present) of the scheme; or (b) an agreement made between the relevant employer of the first-mentioned scheme and the relevant

employer of another occupational retirement scheme of which such individual was formerly a member,


whether or not such individual is a party to the agreement, and where appropriate, "member" also includes the estate of a deceased member;

"occupational retirement scheme" (職業退休計劃) means subject to subsection (6) any scheme, not being a contract of insurance under which benefits are payable only upon the death or disability of the insured, which-

(a) is comprised in one or more instruments or agreements; and (b) has or is capable of having effect in relation to one or more descriptions or categories of employment

so as to provide benefits, in the form of pensions, allowances, gratuities or other payments, payable on termination of service, death or retirement, to or in respect of persons gainfully employed (whether in Hong Kong or elsewhere) under a contract of service in any employment,

and includes, where the context admits, a proposed such scheme; "offshore scheme" (離岸計劃) means an occupational retirement scheme the domicile of which is a country, territory

or place outside Hong Kong; (Amended 31 of 1999 s. 3) "participating scheme" (參與計劃) means, in relation to a pooling agreement, an occupational retirement scheme to

which the agreement applies; "partner" (合夥人) means a member of a partnership formed under the law of Hong Kong or the law of any country,

territory or place outside Hong Kong; (Amended 31 of 1999 s. 3) "past service liability" (過去服務負債) means, in relation to a particular day and a particular member of an

occupational retirement scheme- (a) (in case the scheme is a defined contribution scheme) the aggregate of the contributions paid or

payable under the scheme by the relevant employer and (where appropriate) by the member, in respect of that member during the period beginning when his membership commenced and ending on that particular day, and the amount of any declared return on such contributions including any guaranteed return paid or payable pursuant to the scheme; or

(b) (in case the scheme is a defined benefit scheme) the value on that particular day, as determined by an actuary, of the benefit entitlement under the scheme of, or in respect of, the member which, having regard to his qualifying service, could reasonably be expected to be received prospectively or contingently or, where appropriate, both; the actuary having made a reasonable allowance for the effects of mortality, what he considers to be prospective future salary increases, withdrawal from service rates and such other factors (if any) as he considers relevant,

and in this definition "contributions" (供款) and "benefit entitlement" (利益享有權) include, in relation to a member who was a member of another occupational retirement scheme before joining the first-mentioned scheme, such contributions or benefit entitlement which stood to his credit under the second-mentioned scheme as were transferred in accordance with the terms of the first-mentioned scheme and stood thereunder to his credit upon his joining the first-mentioned scheme and where such transfer occurs, "membership" (成員) in relation to that member includes such period of membership in the second-mentioned scheme as is counted towards membership of the first-mentioned scheme;

"prescribed fee" (訂明費用) means a fee prescribed in rules made by the Registrar;

"qualified certificate" (不足額證明書) means an actuarial certificate certifying in the manner described in paragraph 1(b) or 2(b) of Part 3 of Schedule 1 or Part 2 of Schedule 2;

"qualifying service" (可享利益服務年資) means, in relation to a member of an occupational retirement scheme, the period of service by reference to which his benefits under the scheme are ascertained;

"the register" (註冊紀錄冊) means the register kept in accordance with section 6;

"registered scheme" (註冊計劃) means an occupational retirement scheme which is for the time being registered under section 18;

"registered trust company" (註冊信託公司) means a company which is for the time being registered under Part 8 of the Trustee Ordinance (Cap 29);

"Registrar" (處長) means the Mandatory Provident Fund Schemes Authority; (Replaced 4 of 1998 s. 4)

"registration" (註冊) means registration under section 18;

"relevant employer" (有關僱主) means, in relation to an occupational retirement scheme, the employer who provides the employment which entitles or enables the employee to be a member of the scheme;

"restricted investment" (受限制投資項目) has the meaning assigned to it by section 27;


"security" (證券) means any share, loan or other stock, debenture, fund, or any bond or notes of, or issued by (or on behalf of) any body (whether established or extant in Hong Kong or elsewhere and whether corporate or unincorporated) and includes-

(a) any right, option or interest (whether described as a unit or otherwise) in or in respect of any of the foregoing;

(b) any certificate of interest or participation in, or temporary or interim certificate for, receipt for, or warrant to subscribe to or purchase any of the foregoing; or

(c) any instrument commonly known as a security; "solicitor" (律師) means a solicitor within the meaning of the Legal Practitioners Ordinance (Cap 159);

"subsidiary" (附屬公司) means, in relation to an employer- (a) where the employer is a company and there is another company which is by virtue of section 15 of the

Companies Ordinance (Cap 622) a subsidiary of the employer for the purposes of that Ordinance, the other company;

(b) where an employer is not a company but is a body of persons otherwise incorporated or established in Hong Kong or elsewhere, any other body of persons, appearing to the Registrar to be analogous to a company which would be by virtue of section 15 of the Companies Ordinance (Cap 622) a subsidiary of the employer were the employer a company as defined by section 2(1) of that Ordinance; (Amended 28 of 2012 ss. 912 & 920)

"vested benefit" (既有利益) means, in relation to a particular day and a particular member of an occupational retirement scheme-

(a) in case the member is employed on that day by the relevant employer of the scheme, the benefit which under the scheme the member is on that day entitled to receive, either immediately or prospectively, and also the benefit (if any) which any other person is on such day entitled so to receive in respect of such member, assuming the member had voluntarily resigned and had thereby ceased to be so employed on that day; or

(b) in case the member otherwise ceased to be employed by such employer before that day, the benefit which under the scheme the member is or was on such day entitled so to receive, and also the benefit (if any) which any other person is or was on that day entitled so to receive in respect of such member;

"vested liability" (既有負債) means- (a) in relation to a particular day and a particular vested benefit entitlement under a defined benefit

scheme, the value on that day, as determined by an actuary, of the vested benefit; or (b) in relation to a particular day and a particular vested benefit entitlement under a defined contribution

scheme- (i) the contributions paid or payable under the scheme (including any amount paid or payable by

reason of a guarantee given pursuant to the scheme) by the relevant employer of the scheme, and (where appropriate) by the relevant member in respect of that member assuming he ceased to be employed by that employer on that day; and

(ii) the value of any declared return on such contributions, and in this definition "contributions" (供款) and "benefit entitlement" (利益享有權) include, in relation to a member who was a member of another occupational retirement scheme before joining the first-mentioned scheme, such contributions or benefit entitlement which stood to his credit under the second-mentioned scheme as were transferred in accordance with the terms of the first-mentioned scheme and stood thereunder to his credit upon his joining the first-mentioned scheme. (2) In relation to an offshore scheme references in this Ordinance to a trust shall be construed as references to-

(a) in case the law of the domicile of that scheme includes a system or principles of equity, any relation between persons which under that system or those principles constitutes, or is treated or regarded as being, a trust;

(b) in any other case, any relation in which- (i) by virtue of the law of the domicile of that scheme a person holds property for the benefit of

another person; and (ii) as against all other persons, under the law of the domicile of that scheme the person so holding

the property is, or is treated or regarded as being, the owner of it for all or most purposes, and references in this Ordinance to a trustee shall be construed as references to that person.


(3) A person shall not be deemed to be a person in accordance with whose directions or instructions the directors of a corporation are accustomed to act by reason only that the directors of the corporation act on advice given by him in a professional capacity.

(4) In this Ordinance, "pooling agreement" (匯集協議) means an agreement or arrangement- (Amended 59 of 1993 s. 20)

(a) which is- (i) governed by a single trust; or (ii) the subject of or regulated by an insurance arrangement including a series of insurance

arrangements which are of the same class or description; (Amended 59 of 1993 s. 20) (b) which applies to 2 or more individual occupational retirement schemes each of which is-

(i) governed by such trust; or (ii) (where appropriate) the subject of or regulated by such insurance arrangement, by virtue of such application;

(c) under which, in the case of an agreement or arrangement governed by such trust, the assets of its participating schemes are vested with the administrator of the agreement or arrangement, as the case may be; (Amended 59 of 1993 s. 20)

(d) which is managed, in the case of an agreement or arrangement governed by such trust, by a registered trust company; (Replaced 59 of 1993 s. 20)

(e) in relation to which, and its participating schemes, proper accounts and records are kept; and (Replaced 59 of 1993 s. 20)

(f) under which the value of the assets attributable to, and the liabilities of, each of its participating schemes are readily determinable from such accounts and records. (Replaced 59 of 1993 s. 20)

(5) The Registrar may accept an agreement as a pooling agreement for the purposes of this Ordinance if he receives-

(a) a statement by a solicitor referred to in paragraph 2(c) of Part 2 of Schedule 1; and (b) a statement by an auditor referred to in paragraph 3 of Part 2 of Schedule 1.

(6) (a) A contract of employment shall not be regarded as an occupational retirement scheme by reason solely that under the contract the employer concerned agrees to pay a gratuity to the employee concerned on the termination of the contract and the period of employment to which the contract relates does not exceed 4 years.

(b) Where- (i) a contract described in paragraph (a) terminates; (ii) the employee concerned is subsequently employed, whether with or without a break in service,

by the same employer under another contract; and (iii) the gratuity payable under the terminated contract is not paid in full within 6 months of such

termination, or though such gratuity is so paid the whole or a substantial part of it is repaid by the employee to the employer,

that other contract shall be regarded as an occupational retirement scheme. (7) For the avoidance of doubt, it is hereby declared that where a registered scheme is the subject of or

regulated by an insurance arrangement, the assets of the scheme are, in so far as that arrangement is concerned, any claims (including contingent and prospective claims) which may be made against the authorized insurer concerned under that arrangement. (Added 59 of 1993 s. 20)

(8) For the purposes of an application for an exemption certificate under section 16 of the Mandatory Provident Fund Schemes (Exemption) Regulation (Cap 485 sub. leg. B) ("the Regulation"), where-

(a) an occupational retirement scheme was established; and (b) an application for its registration under section 15 or its exemption under section 7, as the case may

be, was made, within the times required to qualify as a "relevant ORSO registered scheme" within the meaning of section 2 of the Regulation, if subsequently-

(i) as a result of a provision of this Ordinance, an application to register the scheme again was required; or (ii) any other change to the scheme took place that is not prohibited by this Ordinance but might create

doubt that it continued to qualify as such a scheme, such an application or other change shall not affect the continuity of the scheme nor its qualification as a "relevant ORSO registered scheme" within the meaning of section 2 of the Regulation. (Added 52 of 1999 s. 2)

(9) Without limiting subsection (8), the following shall not affect the continuity of a scheme nor its


qualification as a "relevant ORSO registered scheme" within the meaning of section 2 of the Regulation- (a) application for subsequent registration of a scheme where the scheme has ceased to be registered under

section 23(5); (b) conversion of a scheme from being the subject of, or regulated by, an insurance arrangement into a

scheme governed by a trust. (Added 52 of 1999 s. 2) (10) Notwithstanding subsection (8), where-

(a) an occupational retirement scheme referred to in that subsection is terminated; and (b) the benefits payable to each member of the scheme have been paid out to such member,

for the purposes of the Regulation, such a scheme shall cease to qualify as a "relevant ORSO registered scheme" under section 2 of the Regulation, and no application shall be made for an exemption certificate under section 16 of the Regulation in respect of it. (Added 52 of 1999 s. 2)

(Enacted 1992. Amended E.R. 2 of 2014) Section: 3 Restrictions on operation of occupational retirement

schemes E.R. 2 of 2014 10/04/2014

(1) Subject to subsection (2), an employer shall not operate, contribute to (whether on his own behalf or on behalf of any other person) or otherwise participate in an occupational retirement scheme or enter into a contract with his employees under which membership of an occupational retirement scheme is provided unless-

(a) the scheme is a registered scheme; (aa) the scheme is a registered scheme within the meaning of section 2 of the Mandatory Provident Fund

Schemes Ordinance (Cap 485); (Added 4 of 1998 s. 4) (b) the scheme is contained in or otherwise established by any Ordinance; (Amended 76 of 1993 s. 14) (c) the scheme is an exempted scheme; or (Replaced 53 of 1995 s. 3. Amended 80 of 1997 s. 102) (d) an application has been made in respect of the scheme under section 7(1) or 15 and has not been finally

disposed of. (2) Where an employer enters into a contract with his employee under which membership of a proposed

occupational retirement scheme is provided, subsection (1) does not apply- (a) before the expiry of 3 months after the date on which the contract is entered into; or (b) (where an application is made in respect of the scheme under section 7(1) or 15 within 3 months after

the date on which the contract is entered into) before the application has been finally disposed of. (3) Any person who contravenes subsection (1) commits an offence and shall be liable-

(a) on summary conviction to a fine at level 6 and to an additional fine of $5000 for each day during which the offence continues;

(b) on conviction upon indictment to- (i) a fine of $500000; (ii) an additional fine of $10000 for each day during which the offence continues; and (iii) imprisonment for 2 years.

(4) In this section "employer" (僱主) does not include the government of a country, territory or place outside Hong Kong or any agency or undertaking of or by such a government which is not operated for the purpose of gain. (Amended 31 of 1999 s. 3)

(5) For the purposes of subsection (1), where any person providing service on a full-time basis to a business or other organization in Hong Kong for a period of more than 4 years in such manner and subject to such degree of control that he may reasonably be regarded as an integral part of the organization is a member of an occupational retirement scheme, the proprietor of the organization shall be regarded as participating in the scheme as an employer whether or not there is a contract of employment between such persons and him.

(Enacted 1992. Amended E.R. 2 of 2014) Section: 4 Saving of rights, etc. under unregistered schemes 30/06/1997

An occupational retirement scheme which is not registered under this Ordinance shall not be void or voidable solely by reason of the non-registration, and accordingly the rights, powers, obligations and liabilities under the scheme shall not be invalid or unenforceable solely by reason of the non-registration.

(Enacted 1992)


Part: II REGISTRAR AND REGISTER 30/06/1997

(Enacted 1992) Section: 5 Registrar of Occupational Retirement Schemes L.N. 296 of 1999 10/01/2000

(1) The Mandatory Provident Fund Schemes Authority is the Registrar of Occupational Retirement Schemes and has the functions imposed or conferred on the Registrar by this Ordinance or any other law.

(2) The Authority is required to have a seal, which is to be used to authenticate documents issued by it under this Ordinance in its capacity as Registrar.

(3) The Authority must arrange for all amounts paid to, or recovered by, it under this Ordinance in its capacity as Registrar to be paid into the MPFA Administration Account established and maintained under section 6M of the Mandatory Provident Fund Schemes Ordinance (Cap 485).

(Enacted 1992. Replaced 4 of 1998 s. 4) Section: 6 The register 30/06/1997

(1) The Registrar shall keep a register of occupational retirement schemes registered or exempted under this Ordinance.

(2) The register shall contain such particulars as the Registrar considers appropriate. (2A) The Registrar may amend the register as he considers appropriate in circumstances that justify a change in

the register. (Added 53 of 1995 s. 4) (3) The register may be kept in legible or non-legible form but if kept in non-legible form, it shall be kept in a

manner that any entry in the register is capable of being reproduced in legible form. (4) The register shall be kept at such place as the Registrar shall determine and shall be available for inspection

during office hours on payment to the Registrar of a prescribed fee. (5) Where a person applies to the Registrar for a copy of an entry in the register certified by the Registrar as

correct, such copy shall be issued to the applicant on payment by him of a prescribed fee. (6) A document purporting to be a copy of an entry in the register and to be certified by the Registrar as a

correct copy and to be signed by him shall, unless the contrary is proved, be evidence of the entry and shall be received in evidence without further proof as to the contents of the document and the signature thereon.

(Enacted 1992) Part: III EXEMPTION FROM THE ORDINANCE 30/06/1997

Section: 7 Exemption 31 of 1999 01/07/1997

Remarks: Adaptation amendments retroactively made - see 31 of 1999 s. 3

(1) The Registrar may on an application in writing issue an exemption certificate in respect of an occupational retirement scheme.

(2) An application under this section shall be- (a) made by the relevant employer of an occupational retirement scheme, or for a group scheme under

section 67 by the representative employer of the scheme; (Amended 53 of 1995 s. 5) (b) made in such form as may be specified by the Registrar; and (c) accompanied by-

(i) the prescribed fee; (ii) a copy of a power of attorney executed under section 67 (if any); and (Amended 53 of 1995 s. 5) (iii) such information or document as may be specified by the Registrar.

(3) The relevant employer of an occupational retirement scheme who makes an application under this section shall within such period as the Registrar may specify-


(a) give a written notice of the application to each member of the scheme who is the holder of an identity card within the meaning of the Registration of Persons Ordinance (Cap 177); or

(b) display an appropriate notice of the application and make it available for inspection by such member, as the Registrar may direct.

(4) The Registrar may allow an application for an exemption certificate if he receives a written statement by the relevant employer that such employer has complied with subsection (3) and is satisfied-

(a) (where the occupational retirement scheme to which the application relates is an offshore scheme) that the scheme is registered or approved by an authority in a country, territory or place outside Hong Kong and that the authority performs in that country, territory or place functions which are generally analogous to the functions conferred on the Registrar by this Ordinance; or (Amended 31 of 1999 s. 3)

(b) (in the case of an existing scheme) that on the date of the application not more than either 10% or 50 of that scheme's members, whichever is less, are Hong Kong permanent identity card holders; or

(c) (in the case of a proposed scheme) that on the establishment of the scheme not more than either 10% or 50 of that scheme's members, whichever is less, will be Hong Kong permanent identity card holders.

(5) Where the Registrar receives an application under subsection (1), he may require the applicant to supply to him such information or document (including a legal opinion on a matter specified by the Registrar) as he shall specify which is reasonably required to enable him to determine the application.

(6) Where the Registrar refuses an application for an exemption certificate, he shall give a written notice of the refusal to the applicant which notice shall state the reason for refusal.

(Enacted 1992) Section: 8 Appeal against the Registrar's decision 30/06/1997

Where the Registrar refuses an application for an exemption certificate, the applicant may appeal to the Appeal Board against the refusal within 2 months after the date of the notice given under section 7(6).

(Enacted 1992) Section: 9 Periodic fee for exempted schemes 30/06/1997

(1) Where the Registrar issues an exemption certificate in respect of an occupational retirement scheme, the relevant employer of that scheme shall pay to the Registrar a prescribed fee which is a periodic fee as may be appropriate in respect of-

(a) such period of 12 months during which the certificate continues to be valid and beginning on the first or any subsequent anniversary of the date of the certificate; or

(b) part of such a period. (2) A periodic fee payable under subsection (1) shall be paid to the Registrar not later than 1 month after the

first day of the period in respect of which it is payable. (3) Where a periodic fee is not paid in accordance with subsection (2), there shall be chargeable upon the

unpaid fee a surcharge equal to the amount of such unpaid fee which shall be paid together with such unpaid fee to the Registrar not later than 2 months after the first day of the period in respect of which the unpaid periodic fee is payable.

(Enacted 1992) Section: 10 Provision of information relating to exempted schemes 30/06/1997

(1) For an exempted scheme- (a) the Registrar may by written notice require the relevant employer to give him information or a

document relating to the scheme which is in the employer's possession or under his control within the period set out in the notice being not less than 14 days from the date of the notice;

(b) the relevant employer shall, for each period of 12 months beginning on the date of the exemption certificate or an anniversary of the date, give the Registrar- (i) for a scheme exempted under section 7(4)(a), documentary evidence to satisfy the Registrar of

the validity of the relevant registration or approval during the period; or (ii) for a scheme exempted under section 7(4)(b) or (c), a written statement of the total number of

members of the scheme and the number of the members who were Hong Kong permanent identity card holders on the date of the statement,


within 14 days after the expiration of the period or such longer period as the Registrar may allow; (c) the relevant employer shall give each member of the scheme who holds an identity card within the

meaning of the Registration of Persons Ordinance (Cap 177) notice of the issue of the exemption certificate as soon as reasonably practicable and in the manner specified by the Registrar;

(d) the relevant employer shall notify the Registrar of a change to the name of the scheme together with the matters prescribed in rules made by the Registrar within 1 month of the change;

(e) the relevant employer concerned shall notify the Registrar of a change of the relevant employer together with the matters prescribed in rules made by the Registrar within 1 month of the change;

(f) the relevant employer shall notify the Registrar of a change of his name or address within 1 month of the change; and

(g) if the scheme ceases to be registered or approved as mentioned in section 7(4)(a), the relevant employer shall as soon as reasonably practicable inform the Registrar of the fact. (Replaced 53 of 1995 s. 6)

(2) A relevant employer who without reasonable cause- (a) fails to give the Registrar information or a document pursuant to a notice under subsection (1)(a); (b) fails to give the Registrar documentary evidence or a written statement as required under subsection

(1)(b); (c) fails to give a member notice of an exemption certificate required under subsection (1)(c); or (d) fails to give the Registrar notice of a change to his name or address as required under subsection (1)(f),

commits an offence and is liable on summary conviction to a fine at level 3. (Replaced 53 of 1995 s. 6) (3) A relevant employer who without reasonable cause fails to give the Registrar notice of a change to the name

of a scheme as required under subsection (1)(d) commits an offence and is liable on summary conviction to a fine at level 1. (Replaced 53 of 1995 s. 6)

(3A) A relevant employer who without reasonable cause fails to give the Registrar notice of a change of the relevant employer as required under subsection (1)(e) commits an offence and is liable on summary conviction to a fine at level 3. (Added 53 of 1995 s. 6)

(3B) A relevant employer who without reasonable cause fails to inform the Registrar as required under subsection (1)(g) commits an offence and is liable on summary conviction to a fine at level 6. (Added 53 of 1995 s. 6)

(4) It shall be a defence to a charge under subsection (3B) if the defendant proves that he did not know and could not with reasonable diligence have known that the scheme to which the charge relates had ceased to be registered or approved as mentioned in section 7(4)(a). (Amended 53 of 1995 s. 6)

(Enacted 1992) Section: 11 Proposal to withdraw an exemption certificate 30/06/1997

(1) The Registrar may issue a proposal to withdraw an exemption certificate where it appears to the Registrar that-

(a) for an exempted scheme under section 7(4)(a)- (i) the scheme has ceased to be registered or approved as mentioned in section 7(4)(a); or (ii) the relevant authority has ceased to perform functions that are generally analogous to the

functions conferred on the Registrar by this Ordinance; (b) for an exempted scheme under section 7(4)(b) or (c), more than 10% or 50 of the members of the

scheme, whichever is less, are Hong Kong permanent identity card holders; (c) the requirement of section 9(3) is not complied with for the scheme; or (d) the requirement of section 10(1)(b) is not complied with for the scheme. (Replaced 53 of 1995 s. 7)

(2) Where the Registrar issues a proposal in respect of an occupational retirement scheme under subsection (1), he shall-

(a) publish a notice containing the proposal in at least one newspaper in the English language and one in the Chinese language circulating daily in Hong Kong; and

(b) give a notice in writing of the proposal to the relevant employer of that scheme requiring him to- (i) cause a copy of the notice to be sent to each member of the scheme who is the holder of an

identity card within the meaning of the Registration of Persons Ordinance (Cap 177); or (ii) display an appropriate notice of the Registrar's notice and make the later available for inspection

by such member. (3) A notice published or given by the Registrar under subsection (2) shall-


(a) state the reason for issuing the proposal; and (b) state that representations or objections as regards the proposed withdrawal may be made to the

Registrar within such period (being a period of not less than 1 month beginning on the date of the notice) as shall be specified in the notice.

(4) The Registrar may on an application in writing in his absolute discretion- (a) withdraw a proposal issued under subsection (1); or (b) extend the period referred to in subsection (3).

(5) An employer who fails to comply with a requirement under subsection (2)(b) commits an offence and shall be liable on summary conviction to a fine of $10000.

(Enacted 1992) Section: 12 Withdrawal of exemption certificate 30/06/1997

(1) The Registrar may withdraw an exemption certificate if, after considering representations or objections made during the period set out in a notice published under section 11(2), he is satisfied that-

(a) for an exempted scheme under section 7(4)(a)- (i) the scheme has ceased to be registered or approved as mentioned in section 7(4)(a); or (ii) the relevant authority has ceased to perform functions that are generally analogous to the

functions conferred on the Registrar by this Ordinance; (b) for an exempted scheme under section 7(4)(b) or (c), more than 10% or 50 of the members of the

scheme, whichever is less, are Hong Kong permanent identity card holders; (c) the requirement of section 9(3) is not complied with for the scheme; or (d) the requirement of section 10(1)(b) is not complied with for the scheme. (Replaced 53 of 1995 s. 8)

(2) Where the Registrar withdraws an exemption certificate, he shall- (Amended 53 of 1995 s. 8) (a) publish a notice of the withdrawal in at least one newspaper in the English language and one in the

Chinese language circulating daily in Hong Kong; and (b) give a notice in writing of the withdrawal to the relevant employer of the scheme requiring him to-

(Amended 53 of 1995 s. 8) (i) cause a copy of the notice to be sent to each member of the scheme who is the holder of an

identity card within the meaning of the Registration of Persons Ordinance (Cap 177); or (ii) display an appropriate notice of the Registrar's notice and make the latter available for inspection


(a) state the decision of the Registrar; (b) state that appeal against the withdrawal may be made to the Appeal Board within 2 months after the

date of the notice; and (c) state the date on which the withdrawal will come into effect.

(4) An employer who fails to comply with a requirement under subsection (2)(b) commits an offence and shall be liable on summary conviction to a fine of $10000.

(Enacted 1992) Section: 13 Appeal against withdrawal 30/06/1997

Where the Registrar withdraws an exemption certificate, the relevant employer may, within the period of 2 months after the date of the notice given under section 12(2)(b), appeal to the Appeal Board against the withdrawal.

(Enacted 1992. Amended 53 of 1995 s. 9) Section: 14 Coming into effect of withdrawal 30/06/1997

(1) A withdrawal under section 12 shall not come into effect- (a) where no appeal is made in relation to it under section 13, until the period during which such an appeal

may be made has expired; or (b) where such an appeal is made, pending determination of the appeal or, in case such appeal is

withdrawn, before such withdrawal. (2) Where the Registrar withdraws an exemption certificate, in order to afford an opportunity to enable-


(a) the requirement of or under this Ordinance which caused him to withdraw the exemption certificate to be complied with; or

(b) the registration of the scheme to be registered under section 18(1), (Amended 53 of 1995 s. 10) he may defer the coming into effect of the withdrawal and, if so, shall give a notice in writing of the deferment of the withdrawal to the relevant employer of the scheme.

(3) The Registrar shall- (a) publish a notice of the coming into effect of the withdrawal in at least one newspaper in the English

language and one in the Chinese language circulating daily in Hong Kong; (b) give a notice in writing of the coming into effect of the withdrawal to the relevant employer of the

relevant occupational retirement scheme requiring him to- (i) cause a copy of the notice to be sent to each member of the scheme who is the holder of an

identity card within the meaning of the Registration of Persons Ordinance (Cap 177); or (ii) display an appropriate notice of the Registrar's notice and make the latter available for inspection

by such member. (4) An employer who fails to comply with a requirement under subsection (3)(b) commits an offence and shall

be liable on summary conviction to a fine of $10000. (Enacted 1992)

Part: IV REGISTRATION OF OCCUPATIONAL RETIREMENT

SCHEMES 30/06/1997

(Enacted 1992) Section: 15 Application for registration 30/06/1997

An application for registration of an occupational retirement scheme under this Ordinance shall- (a) be made by the relevant employer of the scheme, or for a group scheme under section 67 by the

representative employer of the scheme, to the Registrar; (Amended 53 of 1995 s. 11) (b) be made in a form specified by the Registrar; (c) be made in accordance with the registration rules made under section 73(1)(d); (d) be accompanied by the prescribed fee and a copy of a power of attorney (if any) executed under

section 67; (Amended 53 of 1995 s. 11) (e) be accompanied-

(i) in case the scheme to which the application relates is a participating scheme of a pooling agreement, by the documents set out in Part 2 of Schedule 1; or

(ii) in case the scheme is not such a participating scheme of a pooling agreement, by the documents set out in Part 1 of Schedule 1,

and such documents set out in Part 3 of Schedule 1 as may be applicable in the case of the application; (f) be accompanied by an undertaking given-

(i) where the scheme- (A) is or proposes to become a participating scheme of a pooling agreement, by the

administrator of the pooling agreement; (B) is not a participating scheme of a pooling agreement and is, or is proposed to be, governed

by a trust, by each of the trustees or proposed trustees concerned; (C) is not a participating scheme of a pooling agreement and is, or is proposed to be, the subject

of or regulated by an insurance arrangement, by the relevant insurer or proposed insurer, who is (in the case of an individual) ordinarily resident in Hong Kong and is the holder of an identity card within the meaning of the Registration of Persons Ordinance (Cap 177) or which has (in the case of a body corporate) a place of business in Hong Kong; or

(ii) in any other case or where none of the administrator, trustees or insurer referred to in subparagraph (i)(A), (B) or (C) is a person who is ordinarily resident in Hong Kong and is the holder of an identity card within the meaning of the Registration of Persons Ordinance (Cap 177) or body corporate having a place of business in Hong Kong, by such suitable person as the Registrar may direct,

stating that he undertakes to perform in relation to the scheme the functions imposed or conferred on a


designated person by this Ordinance. (Enacted 1992)

Section: 16 Registrar may require information or amendment of

documents 30/06/1997

Where the Registrar receives an application under section 15, he may- (a) require the applicant to supply to him such information or document (including a legal opinion on a

matter specified by the Registrar) as he shall specify which is reasonably required to enable him to determine the application;

(b) require any document given under section 15(e) to be amended in such manner as he may reasonably direct.

(Enacted 1992) Section: 17 Waiver and modification of registration requirements 30/06/1997

(1) Where an application for the registration of an occupational retirement scheme which is a participating scheme of a pooling agreement is made under section 15 in anticipation of the cessation of the effect of the scheme's original registration under section 23(5), the Registrar may as regards the scheme waive or modify wholly or partly any requirement of any provision of this Ordinance relating to application for registration if he is satisfied that-

(a) upon the registration being applied for the scheme will become a participating scheme of another pooling agreement;

(b) the terms and nature of the 2 pooling agreements are similar; and (c) such waiver or modification will not prejudice the interests of the members of the scheme.

(2) On making any waiver or modification under subsection (1), the Registrar may impose such conditions as he thinks fit.

(Enacted 1992) Section: 18 Registration 30/06/1997

(1) Subject to subsection (3), where the Registrar receives an application under section 15 for the registration of an occupational retirement scheme and is satisfied-

(a) subject to section 17 as regards the application and the scheme, that the requirements of section 15 have been complied with;

(b) that the requirement of section 25(2) (in the case of an existing scheme governed by a trust) has been complied with in relation to the scheme as though it was a registered scheme or (in the case of a proposed scheme which will be governed by a trust) will be complied with in relation to the scheme;

(c) subject to subsection (2), that the terms of the scheme ensure that in the event that the scheme was terminated or otherwise wound up the benefits payable to every member of the scheme under such terms would be paid directly to such member instead of being paid through the relevant employer of the scheme or his agent; and

(d) (where the scheme is or is stated to be an offshore scheme) that the terms of the scheme provide that, in the event that- (i) the registration of the scheme under this Ordinance is cancelled; and (ii) (A) the period within which an appeal against such cancellation may be made has expired and

no such appeal has been made; or (B) an appeal is duly made against such cancellation and has been dismissed by the Appeal

Board and all proceedings (if any) incidental to such appeal and dismissal have been finally disposed of,

any vested benefit which every member of the scheme who is the holder of an identity card within the meaning of the Registration of Persons Ordinance (Cap 177) is entitled to receive or which any other person is entitled to receive in respect of such member under the terms of the scheme shall thereupon become payable as if the condition precedent (if any) of such entitlement had been satisfied,

the Registrar shall allow the application. (2) Where the terms of the scheme allow the administrator of the scheme to withhold any part of any payment


due to be made under the terms of the scheme to a member of the scheme for the purpose of effecting repayment of a debt owed by that member to the relevant employer of the scheme upon the production of a written acknowledgment of such debt made by that member, the terms of the scheme shall not solely by this reason be regarded as not having the effect provided for in subsection (1)(c).

(3) Where the Registrar receives an application under section 15 for the registration of an occupational retirement scheme which is or is stated to be an offshore scheme and having had regard to all information available to him is satisfied that-

(a) the scheme- (i) (in the case of an existing scheme) is not governed by a trust and is not the subject of or regulated

by an insurance arrangement; (ii) (in the case of a proposed scheme) will not be governed by a trust and will not be the subject of

or regulated by an insurance arrangement; or (b) the scheme (where it is an existing scheme) is or (where it is a proposed scheme) will be governed by a

trust which does not or (where appropriate) will not require compliance with the requirement of section 25(2) in relation to the scheme,

the Registrar may allow the application if the conditions prescribed in subsection (4) are fulfilled as regards the scheme.

(4) The conditions referred to in subsection (3) are- (a) as regards the application the requirements of section 15 have been complied with to the satisfaction of

the Registrar; (b) the Registrar-

(i) is satisfied that the scheme's funding arrangements provide that the assets of the scheme are kept separate and distinct from and do not form part of the assets of the relevant employer of the scheme or the assets of the administrator of the scheme which are not vested in him in his capacity as such; or

(ii) is not satisfied in the manner described in subparagraph (i) but is satisfied that to keep the assets of the scheme separate and distinct from the assets of the relevant employer or the assets of the administrator of the scheme which are not vested in him in his capacity as such is not possible or reasonably practicable;

(c) (in the case of a scheme referred to in subsection (3)(b)) the Registrar is satisfied that because of the proper law of the trust governing the scheme, compliance with the requirement of section 25(2) is not possible or reasonably practicable; and

(d) the Registrar, having had regard to the requirement of section 27(2) and the interests of the members of the scheme as a whole, considers it appropriate to allow the application.

(5) Where the Registrar allows an application for registration of an occupational retirement scheme, he shall issue a certificate of registration to the relevant employer of the scheme.

(6) Where the Registrar refuses an application for registration, he shall give a written notice of the refusal to the applicant which notice shall state the reason for refusal.

(Enacted 1992) Section: 19 Appeal against the Registrar's decision 30/06/1997

Where the Registrar refuses an application for registration, the applicant may appeal to the Appeal Board against the refusal within 2 months after the date of the notice given under section 18(6).

(Enacted 1992) Part: V OPERATION OF REGISTERED SCHEMES 30/06/1997

(Enacted 1992) Section: 20 Registered schemes' trustees, etc., to keep proper accounts

and records, etc. 30/06/1997

General requirements


(1) Subject to subsection (5), the administrator of a registered scheme shall keep proper accounts and records as regards all assets, liabilities and financial transactions of the scheme and as soon as reasonably practicable after each of the scheme's financial years-

(a) cause to be prepared in relation to it financial statements as regards the scheme; and (b) submit such statements to an auditor for audit and require such auditor to prepare a report on the

accounts. (2) The financial statements referred to in subsection (1) prepared in relation to a registered scheme and a

financial year of it shall- (a) show a true and fair view of the financial transactions of the scheme during the year and of the

disposition, at the last day of the year, of its assets and liabilities; and (b) contain such other information as the Registrar may specify in guide-lines issued by him.

(3) A report prepared under subsection (1) in relation to a registered scheme and a financial year of it shall- (a) state whether or not in the opinion of the auditor preparing the report-

(i) proper accounts and records have been kept as regards all assets, liabilities and financial transactions of the scheme;

(ii) the financial statements prepared under subsection (1) in relation to the year show a true and fair view of the financial transactions of the scheme during the year and of the disposition, at the last day of the year, of its assets and liabilities;

(b) state whether or not in the opinion of the auditor preparing the report- (Amended 59 of 1993 s. 21) (i) (where the scheme is a defined benefit scheme) the relevant undertaking (as defined in

subsection (4)) has been complied with; (ii) (where the scheme is a defined contribution scheme)-

(A) contributions have been made in accordance with the terms of the scheme; and (B) a shortfall between the scheme's assets and the scheme's aggregate vested liability exists,

and if so stating the amount of such shortfall at the last day of the year; (iii) as at the end of the year the assets of the scheme were subject to any assignment, charge, pledge

or other encumbrance except- (A) the trust (if any) governing the scheme; (B) any charge or pledge created for the purposes of securing loans necessary for meeting the

liabilities of the scheme; and (C) any option to acquire for valuable consideration any interest in the assets of the scheme

granted in the normal course of business; (iv) the requirement of section 27(2) has been complied with as regards the scheme as at the last day

of the year and two such other dates in the year as the auditor preparing the report may elect: Provided that the intervening period between such dates shall not be shorter than 3 months;

(c) where- (i) the auditor has been denied access to the employer's books and records in contravention of

subsection (7); or (ii) the auditor has not been given necessary information and explanations as required by subsection

(7), state such fact; and

(d) contain such other information as the Registrar may specify in guide-lines issued by him. (4) In subsection (3)(b)(i) "the relevant undertaking" (有關承諾) means-

(a) in case 2 or more actuarial certificates have been issued as regards a particular registered scheme each of which is either a full certificate or a qualified certificate, the undertaking referred to in the most recent of those certificates;

(b) in case only 1 full certificate or qualified certificate has been so issued, the undertaking referred to in the certificate.

(5) Where- (a) a registered scheme is a participating scheme of a pooling agreement; (b) the assets of the scheme were stated to be sufficient to meet its aggregate vested liability in-

(i) (where the scheme is a defined contribution scheme) the auditor's statement supplied under section 15 or the last auditor's report prepared under this section; or

(ii) (where the scheme is a defined benefit scheme) the last actuarial certificate supplied under section 15 or 31; and


(c) a majority of over 50% of the members of the scheme passes in accordance with rules made by the Registrar a resolution that this subsection applies to the scheme in relation to a particular financial year of the scheme,

subsection (1)(b) shall not apply to the scheme in relation to that year. (6) A resolution referred to in subsection (5)(c) shall not be passed in relation to more than 2 consecutive

financial years of a registered scheme. (7) For the purposes of subsection (3), the relevant employer of a registered scheme shall, as soon as

reasonably practicable after a written request is made of him by the auditor of the scheme- (a) allow the auditor and such other person as may be authorized by that auditor, to have access to such

books and records of the employer; and (b) give to the auditor such information and explanations,

as he may reasonably require for the purposes of discharging his duty in relation to the scheme. (7A) The auditor appointed under subsection (7B)(a) of the relevant employer of a registered scheme ("the

employer's auditor") to which subsection (1)(b) applies shall, not later than 4 months after each of the scheme's financial years or such longer period as the Registrar may in his absolute discretion permit in any particular case, give to the auditor preparing the report under subsection (3)(b) ("the administrator's auditor") a statement-

(a) in such form as the Registrar may specify in guidelines issued by him; (b) containing such information as may reasonably be required for the purposes of enabling the

administrator's auditor to discharge his duty under subsection (3)(b) in relation to the scheme; and (c) where the employer's auditor-

(i) has been denied access to the employer's books and records in contravention of subsection (7B)(b)(i); or

(ii) has not been given necessary information and explanations as required by subsection (7B)(b)(ii), of that fact. (Added 59 of 1993 s. 21)

(7B) For the purposes of subsection (7A), the relevant employer of a registered scheme to which that subsection applies shall-

(a) ensure that, at all relevant times, he has appointed an auditor to discharge the duty imposed under that subsection on the employer's auditor; and

(b) as soon as reasonably practicable after a request is made of him by that auditor- (i) allow the auditor and such other person as may be authorized by that auditor, to have access to

such books and records of the employer; and (ii) give to the auditor such information and explanations, as the auditor may reasonably require for the purposes of discharging his duty under that subsection. (Added 59 of 1993 s. 21)

(7C) The administrator of a pooling agreement accepted under section 2(5) shall, subject to any exemption granted by the Registrar, appoint-

(a) a common accounting year for each of the schemes within the pooling agreement; and (b) the same auditor to audit the financial statements of each participating scheme under the pooling

agreement for the purposes of subsections (1)(b) and (2). (Added 53 of 1995 s. 12) (8) An employer who fails to comply with subsection (7) or (7B) commits an offence and shall be liable on

summary conviction to a fine of $10000. (Amended 59 of 1993 s. 21) (Enacted 1992)

Section: 21 Requirements in relation to assets 30/06/1997

(1) The assets of a registered scheme- (a) subject to subsections (4)(b) and (4A), shall, except where the Registrar is satisfied as regards the

scheme in the manner described in section 18(4)(b)(ii), be kept separate and distinct from and shall not form part of the assets of the relevant employer of the scheme or the assets of the administrator of the scheme which are not vested in him in his capacity as such; (Amended 59 of 1993 s. 22; 53 of 1995 s. 13)

(b) shall not be subject to any assignment, charge, pledge or other encumbrance except- (i) the trust (if any) governing the scheme; (ii) any charge or pledge created for the purposes of securing loans necessary for meeting the

liabilities of the scheme; and


(iii) any option to acquire for valuable consideration any interest in the assets of the scheme granted in the normal course of business; and

(c) shall only be applied for the purposes of the scheme. (2) Any assignment, charge, pledge or other encumbrance created over the assets of a registered scheme shall

be void to the extent to which the creation contravenes subsection (1). (3) Where the net realizable value of the assets of a registered scheme exceeds the aggregate past service

liability and the terms of the scheme provide for repayment of the excess or any part thereof to the relevant employer of the scheme in such circumstances, nothing in this section shall be construed as preventing such repayment.

(4) Where a registered scheme is the subject of or regulated by an insurance arrangement, it is hereby declared that-

(a) notwithstanding- (i) the terms of the scheme (including of that arrangement); (ii) the other provisions of this Ordinance; (iii) the provisions of any other enactment; or (iv) any rule of law, the assets or estate of the relevant employer of the scheme available for distribution in the event of the bankruptcy or winding up of that employer shall not include so much of the assets of that scheme as equals the aggregate past service liability of the members of that scheme;

(b) subsection (1)(a) shall not operate to either- (i) prevent the relevant employer of the scheme from being the policy holder of the policy issued by

the authorized insurer concerned under that arrangement; or (ii) require any claim which may be made against that insurer under that arrangement to be kept

separate and distinct from and not form part of the assets of that employer. (Added 59 of 1993 s. 22)

(4A) Where a registered scheme is a participating scheme of a pooling agreement accepted under section 2(5), the asset separation required under subsection (1)(a) does not require the separation of the assets of the scheme from the assets of the other schemes vested in the administrator in his capacity as administrator of the pooling agreement. (Added 53 of 1995 s. 13)

(5) For the avoidance of doubt, it is hereby declared that the operation of subsection (4)(a) in relation to a registered scheme shall not prejudice the operation of subsection (1)(c) in relation to so much of the assets of that scheme as are not, by virtue of that first-mentioned subsection, included in the assets or estate of the relevant employer of the scheme available for distribution in the event of the bankruptcy or winding up of that employer. (Added 59 of 1993 s. 22)

(Enacted 1992) Section: 21A Notice required 30/06/1997

(1) The relevant employer concerned shall notify the Registrar of a change of the relevant employer of a registered scheme together with the matters prescribed in rules made by the Registrar within 1 month of the change.

(2) The relevant employer of a registered scheme shall give notice of the matters prescribed in rules made by the Registrar within 1 month after the change to the name of the scheme.

(3) The relevant employer of a registered scheme who without reasonable cause fails to notify the Registrar of a change as required under subsection (1) commits an offence and is liable on summary conviction to a fine at level 3.

(4) A relevant employer of a registered scheme who without reasonable cause fails to give the Registrar notice of the prescribed matters within the prescribed time of a change to the name of the scheme under subsection (2) commits an offence and is liable on summary conviction to a fine at level 1.

(Added 53 of 1995 s. 14) Section: 22 Certain changes to be notified 30/06/1997

(1) The relevant employer of a registered scheme shall notify the Registrar of- (a) any change of his name or address which was previously supplied to the Registrar; or (b) any change of the administrator of the scheme,

within 1 month of such change. (2) The designated person of a registered scheme shall notify the Registrar of any change of his name or


address or the name or address of the administrator of the scheme which was previously supplied to the Registrar within 1 month of the change. (Replaced 53 of 1995 s. 15)

(3) Any person who contravenes subsection (1) or (2) commits an offence and shall be liable on summary conviction to a fine of $10000.

(Enacted 1992) Section: 23 Cessation of application of pooling agreement 30/06/1997

(1) A pooling agreement shall not cease to apply to a registered scheme unless the Registrar has given his prior consent in writing.

(2) A pooling agreement shall, notwithstanding any term of it, be construed and have effect as if it was made subject to subsection (1).

(3) The Registrar may give consent referred to in subsection (1) on an application in writing made to him by the administrator of the relevant pooling agreement or the relevant employer of the relevant registered scheme.

(4) Where a pooling agreement ceases to apply to a registered scheme, the administrator of the scheme shall within 14 days inform the Registrar in writing of such cessation.

(5) Where a registered scheme is a participating scheme of a pooling agreement upon its registration, the registration shall cease to have effect upon the cessation of application of that agreement to the scheme.

(6) Any person who contravenes subsection (4) commits an offence and shall be liable on summary conviction to a fine of $10000.

(Enacted 1992) Section: 24 General funding requirements and duties 30/06/1997

(1) Subject to the provisions of this Ordinance, the assets of a registered scheme shall be sufficient to meet its aggregate vested liability and such a scheme shall be funded in accordance with the terms of the scheme and (where the scheme is a defined benefit scheme) recommendations, if any, contained in an actuarial certificate supplied under section 15 and certifying in the manner described in paragraph 1 or 2 of Part 3 of Schedule 1 or an actuarial certificate supplied under section 31 and certifying in the manner described in Part 1 or 2 of Schedule 2.

(2) Where an existing scheme becomes a registered scheme, it shall be the duty of the relevant employer of the scheme to provide in accordance with subsection (3) the resources necessary to enable the scheme to meet both its aggregate vested liability and its aggregate past service liability on the respective days on which the periods referred to in subsection (3) expire.

(3) The resources referred to in subsection (2) shall be provided- (a) in so far as they relate to the relevant registered scheme's aggregate vested liability, not later than-

(i) the expiration of the period of 5 years after the commencement of section 1; or (ii) such shorter period as may be agreed on by the relevant employer and administrator of the

scheme; or (iii) such longer period as the Registrar may allow in accordance with rules made for the purposes of

this paragraph; (b) in so far as they relate to such scheme's aggregate past service liability, not later than the expiration of

such period as may be agreed on between such employer and such administrator. (4) Notwithstanding any provision of the terms of an occupational retirement scheme, such terms shall be

construed and have effect as though they were made subject to this section. (Enacted 1992)

Section: 24A Recovery of arrears in relation to certain registered

schemes L.N. 120 of 2000 01/12/2000

(1) In this section- "arrears" (欠款), in relation to a contribution payable to the funds of a scheme by a relevant employer, means so much

of the contribution as has not been paid by that employer when it became due; "relevant scheme" (有關計劃) means a registered scheme in respect of which the members or a class of members and

their employer are exempted under section 5 of the Mandatory Provident Fund Schemes Ordinance (Cap 485).


(2) If any arrears arise in respect of a relevant scheme, the Registrar may, in accordance with rules made under section 73 for the purpose, impose on the relevant employer-

(a) a financial penalty that does not exceed the greater of $5000 and an amount equal to 10 per cent of the arrears; and

(b) a requirement to pay a contribution surcharge at a rate prescribed by rules in force under section 73, not exceeding 20 per cent per annum of the arrears.

(3) The Registrar may, by proceedings brought in a court of competent jurisdiction in Hong Kong, recover as a debt due to the Registrar any arrears payable by the relevant employer under this section, and any financial penalty or contribution surcharge imposed in respect of those arrears under subsection (2).

(4) In any proceedings brought under subsection (3), a certificate, purporting to be signed by the Registrar, specifying the amount of any arrears, or of any financial penalty or contribution surcharge imposed in respect of those arrears under subsection (2), is, in the absence of evidence to the contrary, proof of the matters specified in the certificate.

(5) If arrears arise in respect of a relevant scheme, the designated person shall- (a) take reasonable steps to recover the arrears; and (b) give notice in writing to the Registrar setting out particulars of the arrears, the scheme and the relevant

employer to enable or assist the Registrar to perform any functions imposed on him by this section or rules made under section 73 for the purposes of this subsection.

(6) The Registrar shall- (a) on receipt of a notice referred to in subsection (5)(b), give notice in writing to the relevant employer,

accompanied by a copy of this section in the Chinese and English languages, requesting him to pay the arrears on or before a date specified in the notice; and

(b) if the relevant employer does not comply with the request, take steps to recover the arrears and any financial penalty and contribution surcharge imposed under subsection (2).

(7) The designated person shall- (a) assist the Registrar to discharge the duty referred to in subsection (6)(b); and (b) verify the calculation of any amount received from the relevant employer in payment of the arrears or

any contribution surcharge imposed under subsection (2). (8) The Registrar shall pay to the designated person any amount received from the relevant employer in

payment of the arrears or any contribution surcharge imposed under subsection (2). (9) The designated person shall pay into the scheme any amount referred to in subsection (7)(b). (10) The Registrar shall give notice in writing to the Authority, within the meaning of section 2 of the

Mandatory Provident Fund Schemes Ordinance (Cap 485), setting out particulars of the arrears, the scheme and the relevant employer to enable or assist the Authority to perform a function referred to in section 78(1)(ea).

(11) A designated person who, without reasonable excuse, fails to comply with a requirement imposed on designated persons by this section commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 1 year.

(Added 4 of 1998 s. 4) Section: 25 Trusteeship requirement 30/06/1997

(1) In this section- "employer trustee" (僱主受託人) in relation to a trust means-

(a) the relevant employer of the registered scheme which is governed by the trust; (b) an associate, not being a registered trust company, of such employer; or (c) an employee of such employer,

when acting in the capacity of a trustee of the trust; "non-employer trustee" (非僱主受託人) in relation to a trust means a trustee who is not an employer trustee.

(2) Where a registered scheme is governed by a trust- (a) the sole trustee of the trust shall not be an employer trustee; and (b) where the trust instrument provides for the appointment of 2 or more trustees, there shall be appointed

for the time being at least 1 non-employer trustee. (3) Where a registered scheme is a Hong Kong domiciled scheme and governed by a trust, the relevant trust

instrument shall be construed and have effect as if the instrument-


(a) required the appointment of at least 1 non-employer trustee; and (b) provided that in case all non-employer trustees cease to be trustees at a time when there was an

employer trustee, at least 1 new non-employer trustee should be appointed as soon as reasonably practicable,

if the instrument does not so require or provide. (4) A non-employer trustee appointed by virtue of subsection (3) shall for all purposes be regarded as having

been appointed under the relevant trust instrument. (Enacted 1992)

Section: 26 Contravention of trusteeship requirement 30/06/1997

(1) Subject to subsection (3), where the requirement of section 25(2) is not complied with in relation to a registered scheme, the Registrar may at any time require the relevant employer of the scheme or the relevant trustee (or, if there be more than 1 trustee, any of them) by notice in writing-

(a) to take such steps as are necessary to ensure compliance with the requirement as regards the scheme; (b) to inform him whether such steps have been taken,

within a period specified by the Registrar. (2) A period referred to in subsection (1)-

(a) shall not be less than 6 months beginning on the date of the relevant requirement; (b) may be extended by the Registrar on an application made in writing to him by the relevant employer or

relevant trustee. (3) A requirement shall not be made under subsection (1) as regards a registered scheme if-

(a) the application for the registration of the scheme was allowed under section 18(3); and (b) the conditions prescribed in section 18(4) are fulfilled as regards the scheme for the time being.

(Enacted 1992) Section: 27 Investment requirement L.N. 12 of 2003 01/04/2003

(1) In this section- "loan" (貸款) does not include a deposit made with an authorized institution within the meaning of the Banking

Ordinance (Cap 155); "mutual fund corporation" (互惠基金法團) means a corporation-

(a) which is or holds itself out as being engaged primarily in the business of investing, reinvesting or trading in securities or any other property; and

(b) the shares in which are exclusively, or primarily, redeemable shares; (Added 53 of 1995 s. 16) "restricted investment" (受限制投資項目) means-

(a) any security of, or issued by, the relevant employer of a registered scheme or an associate of such employer except security issued by an associate of such employer in the form of an option which if exercised will constitute investment in the share capital of a body corporate other than the relevant employer or an associate of such employer; or

(b) any security in the form of an option which if exercised will constitute investment in the share capital of the relevant employer of a registered scheme or an associate of such employer.

(Amended 53 of 1995 s. 16) (2) Where an occupational retirement scheme is registered under this Ordinance-

(a) not more than 10% of the assets of the scheme shall consist of restricted investments; (Replaced 53 of 1995 s. 16)

(b) no asset of the scheme shall consist of a loan to the relevant employer of the scheme or an associate of the relevant employer; (Replaced 53 of 1995 s. 16)

(c) subject to subsection (3), no asset of the scheme acquired on or after 15 October 1993 shall consist of investments in the share capital of a body corporate which share capital is not- (i) listed on a recognized stock market as defined in section 1 of Part 1 of Schedule 1 to the

Securities and Futures Ordinance (Cap 571); or (Replaced 5 of 2002 s. 407) (ii) publicly listed on a specified stock exchange as defined in that section. (Replaced 5 of 2002 s.

407)


(3) Subsection 2(c) shall not operate to prohibit- (a) up to but not exceeding 15% of the assets of the scheme consisting of investments in the share capital

of bodies corporate which share capital is publicly listed on a stock exchange legally established and regulated as a stock exchange in accordance with the laws of the jurisdiction in which it is established and which is other than the stock exchanges referred to in subsection (2)(c) (which 15% is not in addition to any investments of the same nature held prior to 15 October 1993 and exempted from the restriction of subsection (2)(c));

(b) the assets of the scheme consisting of investments in redeemable shares in a mutual fund corporation; and

(c) investments that derive directly from entitlements attached to investments held prior to 15 October 1993 or acquired as a result of this paragraph and which would otherwise be prohibited by subsection (2)(c) about which investments the administrator, before making the investments, shall obtain the Registrar's permission to make the investments by satisfying the Registrar- (i) that the investments derive directly from entitlements attached to the holding of investments held

prior to 15 October 1993 or were acquired as a result of this paragraph; (ii) that the investments have become available in the normal course of business; and (iii) that the registered scheme would be disadvantaged if the investments were not made. (Replaced

53 of 1995 s. 16) (4) The Registrar may give guidelines as to what evidence or documentary material would be relevant to the

issue of satisfying him of the matters set out in subsection (3)(c) including the requirement that the evidence and documentary materials be verified by independent advisors specified by the Registrar. (Replaced 53 of 1995 s. 16)

(5) The Registrar is not liable for any loss incurred by a scheme as a result of an investment made with his permission under subsection (3)(c). (Replaced 53 of 1995 s. 16)

(6) In determining at any time whether the requirement of subsection (2) is complied with assets shall be valued at their market value or, where such value cannot be ascertained, the net realizable value, at that time.

(7) Where the Registrar reasonably believes that the requirement of subsection (2) is for the time being not being complied with as regards a registered scheme, he may, having regard to the interests of the members of the scheme as a whole, by notice in writing to the administrator of the scheme require him to ensure compliance with the requirement as regards the scheme within such period as the Registrar reasonably considers necessary (being a period of not less than 1 month beginning on the date of the notice).

(8) A notice under subsection (7) relating to a registered scheme shall state that representations as regards the requirement specified in the notice may be made in writing to the Registrar within such period as is specified in the notice (being a period of not less than 1 month beginning on the date of the notice) by or on behalf of the administrator of the scheme.

(9) Where a representation relating to a requirement is made in accordance with this section, the Registrar, having had regard to such representation, may-

(a) withdraw or modify the requirement; or (b) extend the period referred to in subsection (7).

(Enacted 1992) Section: 28 Periodic fee for registered schemes 30/06/1997

(1) The relevant employer of a registered scheme shall pay to the Registrar in respect of that scheme a prescribed fee which is a periodic fee as may be appropriate in respect of-

(a) each period of 12 months during which the scheme continues to be a registered scheme and beginning on the first or any subsequent anniversary of its registration; and

(b) part of such a period. (2) A periodic fee payable under subsection (1) shall be paid to the Registrar not later than 1 month after the

first day of the period in respect of which it is payable. (3) Where a periodic fee is not paid in accordance with subsection (2), there shall be chargeable upon the

unpaid fee a surcharge equal to the amount of such unpaid fee which shall be paid together with such unpaid fee to the Registrar not later than 2 months after the first day of the period in respect of which the unpaid fee is payable.

(Enacted 1992)


Section: 29 Termination and winding up to be notified 30/06/1997

(1) Where a registered scheme is terminated or otherwise wound up (except in pursuance to a court order under section 48), the relevant employer and designated person of the scheme shall within 14 days of the commencement of the winding up or termination process give a notice in writing of that fact to the Registrar and each member of the scheme.

(2) Any person who without reasonable excuse contravenes subsection (1) commits an offence and shall be liable on summary conviction to a fine of $10000.

(Enacted 1992) Section: 30 Annual return 30/06/1997

Monitoring

Within 6 months after the end of a registered scheme's financial year or such longer period as the Registrar may in his absolute discretion allow, the designated person of the scheme shall send to the Registrar-

(a) an annual return for that year as regards the scheme in such form and containing such information as may be specified by the Registrar; and

(b) either- (i) (where section 20(5) applies to the scheme by virtue of a resolution passed under paragraph (c)

of that section) a copy of the relevant resolution certified by the administrator of the scheme to be a true copy; or

(ii) (where section 20(5) does not apply to the scheme) a copy of the financial statements of the scheme for that year audited under section 20(1) and a copy of the auditor's report containing the information referred to in section 20(3).

(Enacted 1992) Section: 31 Periodic certification of registered defined benefit schemes 30/06/1997

(1) The designated person of a registered scheme which is a defined benefit scheme shall, as regards each successive period of 3 years or such shorter period as the Registrar may specify in rules made by him, from the date of the actuarial review giving rise to the most recent actuarial certificate supplied as regards the scheme to the Registrar in accordance with this Ordinance, within 6 months after the expiration of the period or such later time as the Registrar may in his absolute discretion allow, supply to the Registrar a certificate issued by an actuary which shall either be a full certificate or a qualified certificate.

(2) The full certificate or qualified certificate referred to in subsection (1) shall be prepared in accordance with Schedule 2 and shall contain such other information as the Registrar may specify in rules made under section 73(1)(i).

(3) Where at the time when the application for the registration of an occupational retirement scheme is made, or at any time thereafter, a qualified certificate is supplied to the Registrar as regards a scheme, the following provisions shall apply-

(a) subject to paragraph (b), subsection (1) shall operate as regards the scheme as though the reference therein to each successive period of 3 years was substituted by a reference to each period of 1 year;

(b) the Registrar may by notice in writing require the administrator of the scheme to supply to him within the period specified in the notice (being a period of not less than 1 month beginning on the date of the notice) a report by an actuary on such matters as the Registrar may specify in the notice.

(4) Where the Registrar receives a qualified certificate as regards a registered scheme and he subsequently receives a full certificate as regards that scheme, subsection (3) shall cease to apply as regards the scheme.

(5) The relevant employer of a registered scheme shall, as soon as reasonably practicable after a written request is made of him by the actuary preparing a certificate under this section as regards the scheme-

(a) allow the actuary and such other person as may be authorized by that actuary to have access to such books and records of the employer; and

(b) give to the actuary such information and explanations, as he may reasonably require for the purposes of discharging his duty in relation to the scheme.

(6) An employer who fails to comply with subsection (5) commits an offence and shall be liable on summary conviction to a fine of $10000.


(Enacted 1992) Section: 32 Registrar may require certain reports and certificates 30/06/1997

(1) Where the Registrar- (a) receives as regards a registered scheme-

(i) a qualified certificate under section 31; (ii) a written request from a consultative committee formed by the members of the scheme; or (iii) a written request signed by not less than 20% or 100, whichever is less, of the members of the

scheme; or (b) reasonably believes that there exist or existed circumstances which may prejudice the interests of any

member of a registered scheme under the scheme, he may make a requirement described in subsection (2) of the designated person of the scheme.

(2) A requirement referred to in subsection (1) shall be contained in a notice in writing requiring the relevant designated person-

(a) to cause to be prepared by an auditor approved by the Registrar a report on such matters and an account of such description as are specified in the notice;

(b) (where the scheme is a defined benefit scheme) to cause to be issued by an actuary approved by the Registrar a certificate in such form as is specified in the notice,

and to supply to the Registrar the report or certificate when prepared or issued or, in case such actuary refuses to issue such certificate, to notify the Registrar in writing of the refusal, within such period as is specified in the notice (being a period not less than 1 month beginning on the date of the notice).

(3) The Registrar may in his absolute discretion extend the period specified in a notice under this section if he thinks fit.

(4) Where the Registrar receives a report or certificate referred to in subsection (2), he may supply to the relevant employer of the relevant registered scheme a copy of such report or certificate and by notice in writing require him-

(a) to make the copy available for inspection by the members of the scheme in such manner as shall be specified in the notice; and

(b) to inform, in a manner specified in the notice, such members that the report or certificate is available for inspection by them.

(5) Any employer who without reasonable excuse fails to comply with a requirement under subsection (4) commits an offence and shall be liable on summary conviction to a fine of $10000.

(6) Nothing in section 77 shall be construed as affecting any provision of this section. (Enacted 1992)

Section: 33 Information etc. to be given to Registrar 30/06/1997

(1) The Registrar may by notice in writing require the designated person or the relevant employer of a registered scheme to give to him within such period as is specified in the notice (being a period of not less than 1 month beginning on the date of the notice) any of the following information or documents in his possession or under his control-

(a) whether or not on the date of such notice the requirement of section 27(2) was complied with as regards the scheme and, if it was not complied with, particulars of all the restricted investments which on that date formed the whole or part of the assets of that scheme and the proportion of the market value or, where such value cannot be ascertained, the net realizable value of those investments to the market value or (where appropriate) the net realizable value of the scheme's assets as a whole;

(b) such information as is specified in the notice and which relates to any accounts or records kept under section 20(1); and

(c) any other information or document which is of a class or description specified in the notice and relates to the scheme or the pooling agreement (if any) which applies to the scheme.

(2) The Registrar may in his absolute discretion extend the period specified in a notice under this section if he thinks fit.

(Enacted 1992)


Section: 34 Consultative committees 30/06/1997

(1) Where a registered scheme has more than 20 members, the majority of the members of the scheme may select amongst themselves members of a consultative committee.

(2) The function of a consultative committee is to advise the administrator of the relevant registered scheme as regards the scheme.

(3) The consultative committee constituted in respect of a registered scheme shall as soon as reasonably practicable after its constitution give a notice in writing of its constitution to the administrator and relevant employer of the scheme.

(4) Where a member of a consultative committee ceases to be a member of the relevant registered scheme, he shall at the same time cease to be a member of the committee.

(5) The relevant employer and the administrator of a registered scheme shall each be entitled to attend personally, or to nominate a person to attend on his behalf, at each meeting of the committee formed by the members of the scheme.

(6) Any advice given by the committee shall be sent to the relevant employer who shall forward it to the administrator of the scheme and any advice so forwarded shall be considered by, but shall not be binding on, such administrator.

(7) Where the condition referred to in subsection (1) ceases to be fulfilled as regards a registered scheme, the consultative committee formed in respect of the scheme shall on such cessation be dissolved.

(Enacted 1992) Section: 35 Certain information to be made available to consultative

committees or members of registered schemes 30/06/1997

(1) The designated person of a registered scheme shall as soon as reasonably practicable prepare and keep revised as circumstances require a statement containing the information set out in Schedule 3.

(2) Where a consultative committee has been formed by the members of a registered scheme, the designated person of the scheme shall-

(a) as soon as reasonably practicable give to the committee a copy of the statement prepared under subsection (1);

(b) subject to subsection (4), on a written request made to him by the committee, as soon as reasonably practicable furnish in writing to it the following particulars- (i) the latest available aggregate market value of the scheme's total assets; (ii) whether or not on the date of the request the requirement of section 27(2) was complied with as

regards the scheme and, if it was not complied with, the particulars of all the restricted investments which formed the whole or part of the assets of the scheme on that date and the proportion of the market value or, where such value cannot be ascertained, the aggregate net realizable value of those investments to the aggregate market value or (where appropriate) the net realizable value of the scheme's total assets as a whole as on such date; (Amended 53 of 1995 s. 17)

(iii) if on the date of the request the market value or, where such value cannot be ascertained, the net realizable value of a particular security then forming part of the scheme's assets exceeded 10% of the market value or (where appropriate) the net realizable value on such date of the scheme's assets as a whole, the particulars of such security and the percentage it then formed of that market value or (where appropriate) the net realizable value; and (Amended 53 of 1995 s. 17)

(iv) if on the date of the request the market value or, if the market value cannot be ascertained, the net realizable value, of investments in the share capital of bodies corporate under section 27(3)(a) then forming part of the scheme's assets exceeded 5% of the market value or (where appropriate) the net realizable value on that date of the scheme's assets as a whole, the particulars of the investments and the percentage they then formed of the market value or (where appropriate) the net realizable value. (Added 53 of 1995 s. 17)

(3) Subject to subsection (4), if no consultative committee is formed by the members of a registered scheme, the designated person of the scheme-

(a) shall permit any member of the scheme to inspect the statement prepared under subsection (1) or a copy thereof at any time during business hours at a place agreed on between the relevant employer of


the scheme and a representative of the members of the scheme or in default of such agreement, at a place determined by the Registrar; and

(b) shall, upon a written request by a member of the scheme and production by such member of a resolution passed in accordance with rules made by the Registrar by a majority of over 50% of the members of the scheme that such request is supported by such members, furnish as soon as reasonably practicable in writing to the member the particulars referred to in subsection (2)(b).

(4) Where a request under subsection (2)(b) or (3)(b) is made of a designated person and is complied with, unless otherwise directed in writing by the Registrar, the designated person shall not be obliged to comply with a further such request until the period of 12 months beginning on the day on which the earlier request was received has expired.

(5) Within 6 months after the end of a registered scheme's financial year, the relevant employer of the scheme shall give to each member of the scheme a statement of-

(a) the member's vested benefits under the scheme as at the end of that year; and (b) the benefits the member could reasonably expect to receive under the scheme on his retirement in

respect of qualifying service already rendered. (6) Where a member of a registered scheme ceases to be employed under the employment to which the scheme

relates, the relevant employer of the scheme shall, on a request in writing made by such member, not later than 3 months after such cessation, furnish to him particulars of any benefit under the scheme on such cessation of the member.

(7) Where a registered scheme is amended, the administrator of the scheme shall as soon as reasonably practicable by notice in writing furnish the relevant employer of the scheme with particulars of the amendment and on receipt of such notice the employer shall give a copy of it to each member of the scheme.

(8) The relevant employer of a registered scheme shall, on a request in writing by any member of the scheme, furnish as soon as reasonably practicable to the member in writing the following particulars-

(a) in the case of a scheme governed by a trust, the names and addresses of all the trustees or, in case the scheme is the subject of or regulated by an insurance arrangement, the name and address of the relevant insurer;

(b) in the case of an offshore scheme, the name and address of the designated person of the scheme; and (c) in case a consultative committee is formed by the members in respect of the scheme, the names and

addresses of its members. (9) The relevant employer of a registered scheme shall give to each member of the scheme a statement

containing the following information- (a) the criteria and conditions of membership; (b) how members' contributions are calculated; (c) how employer's contributions are calculated; (d) what benefits are payable under the scheme; (e) how such benefits are calculated; (f) the conditions on which the benefits are paid; (g) which benefits (if any) are payable on a discretionary basis.

(10) A statement required to be given under subsection (9) shall be given- (a) (where the member first became a member on or before the date of registration of the scheme) within 2

months after such date of registration; or (b) (where the member first became a member after the date of registration of the scheme) within 2

months after the date on which the member first became a member. (11) Any person who without reasonable excuse contravenes subsection (2), (3), (5), (6), (7), (8) or (9) commits

an offence and shall be liable on summary conviction to a fine of $10000. (12) Nothing in subsection (1) or (2) shall be construed as requiring a designated person to specify or otherwise

furnish particulars regarding any particular security or other property or the benefits (or any of them) to which a particular member of a registered scheme is entitled or prospectively entitled under the scheme.

(Enacted 1992) Section: 36 Inquiries L.N. 296 of 1999 10/01/2000

Inquiries


(1) In this section- "appointed person" (獲委任人) means a person appointed under subsection (2);

"matter under inquiry" (查訊中的事情) means a matter specified under subsection (3). (2) Where-

(a) a requirement relating to a registered scheme made under section 32 is not complied with; or (b) a report is supplied to the Registrar under section 32 and, having regard to the report, he considers it

appropriate so to do, the Registrar may appoint a person to conduct an inquiry as regards the scheme.

(3) The Registrar may specify matters to which an inquiry under this section is to relate either at the time when an appointment is made under subsection (2) or at any later time.

(4) Where the Registrar makes an appointment under subsection (2) as regards a registered scheme, he shall as soon as reasonably practicable give a notice in writing of the appointment and of the matter under inquiry to the relevant employer and designated person of the scheme.

(5) Where an appointed person reasonably believes a person has in his possession or under his control any document which is likely to contain information relevant to the relevant occupational retirement scheme or matter under inquiry, he may by notice in writing require that person to-

(a) produce to the appointed person, within the time and at the place specified in the notice, such document which is in that person's possession or under his control as may be specified in the notice;

(b) give to the appointed person such explanation or further particulars in respect of a document produced in compliance with a requirement under paragraph (a) as the appointed person shall specify;

(c) attend before the appointed person at the time and place specified in the notice and answer truthfully and to the best of his ability such question relating to the scheme or matter under inquiry as the appointed person may put to him; and

(d) give to the appointed person all assistance in connection with the inquiry which he is reasonably able to give.

(6) Subject to section 76, where an appointed person makes a requirement of a person under subsection (5), the latter shall comply with the requirement.

(7) An appointed person may examine on oath any person of whom a requirement is made under subsection (5)(b) or (c) provided he has first informed that person of the limitation imposed under subsection (8).

(8) Subject to section 76 a person shall be obliged to answer a question put to him under this section by the appointed person, but neither the question nor the answer shall be admissible in evidence against him in criminal proceedings other than proceedings for an offence under section 36 of the Crimes Ordinance (Cap 200) or section 79, or for perjury, in respect of the answer.

(9) If so requested by any person who is or would be affected by the exercise by the appointed person of any power under this section, the appointed person shall produce a copy of his appointment for inspection by that person.

(10) Any costs or expenses incurred by an appointed person (other than a public officer) in conducting an inquiry under this section shall be paid out of the MPFA Administration Account established and maintained under section 6M of the Mandatory Provident Fund Schemes Ordinance (Cap 485). (Amended 4 of 1998 s. 4)

(11) An appointed person may, and if so directed by the Registrar shall, make an interim report to the Registrar and on the conclusion of the inquiry shall make a final report to the Registrar.

(12) Nothing in this section shall be construed as requiring an authorized institution within the meaning of the Banking Ordinance (Cap 155) to disclose any information or produce any record or other document relating to the affairs of a customer of it to the appointed person unless-

(a) the customer is a person whom the appointed person has reason to believe may be able to give information relevant to an inquiry under this section; and

(b) the Registrar is satisfied that the disclosure or production is necessary for the purposes of the inquiry and certifies in writing that is the case,

and, where the conditions in paragraphs (a) and (b) are met in respect of any such institution, such institution shall comply with any provision of subsection (5).

(13) Any person who without reasonable excuse- (a) fails to comply with a requirement made under subsection (5); (b) in answering a question put to him under subsection (5)(c) says anything which is false in a material

particular and which he- (i) knows to be false in such particular; or


(ii) has no reasonable ground to believe to be true in such particular, commits an offence and shall be liable on summary conviction to a fine of $20000 and to imprisonment for 6 months.

(Enacted 1992) Section: 37 Change in domicile 30/06/1997

Miscellaneous

(1) Where the domicile of a registered scheme changes, the designated person of the scheme shall, as soon as reasonably practicable, supply to the Registrar particulars in writing of the change.

(2) Where the Registrar receives particulars referred to in subsection (1), he may by notice in writing require the relevant designated person to make, within such period as is specified in the notice (being a period of not less than 1 month beginning on the date of the notice), an application in writing to him to have another submission described in paragraph 3 of Part 3 of Schedule 1 substituted for the submission accepted when the application for the registration of the relevant registered scheme was allowed.

(3) Where the Registrar disallows an application made under subsection (2) relating to a registered scheme and he is satisfied that the domicile of the scheme has changed, he may issue a proposal under section 42 to cancel the registration of the scheme.

(4) Where the Registrar allows an application under subsection (2), he shall record the change of domicile in the register. (Added 53 of 1995 s. 18)

(Enacted 1992) Section: 38 New trustee to give undertaking 30/06/1997

Where any person- (a) who-

(i) (in the case of an individual) is ordinarily resident in Hong Kong and is the holder of an identity card within the meaning of the Registration of Persons Ordinance (Cap 177); or

(ii) (in the case of a body corporate) has a place of business in Hong Kong; and (b) who has not given an undertaking which is in force for the time being as regards a registered scheme

governed by a trust, is appointed as a trustee of the trust, he shall within 28 days after such appointment send to the Registrar an undertaking stating that he undertakes to perform in relation to the scheme the functions imposed or conferred on a designated person by this Ordinance.

(Enacted 1992) Section: 39 Death etc. of designated person etc. 30/06/1997

(1) Where the Registrar reasonably believes that- (a) the designated person of a registered scheme-

(i) has died; (ii) is incapacitated; (iii) cannot be contacted; or (iv) refuses or neglects to act as such designated person;

(b) in case there is more than one such designated person, each of them- (i) has died; (ii) is incapacitated; (iii) cannot be contacted; or (iv) refuses or neglects to act as such designated person; or

(c) in case such designated person is a body of persons (whether incorporated or unincorporated), it is being or has been wound up or has otherwise ceased to exist or refuses or neglects to act as such designated person,

he may, by notice in writing given to the relevant employer or administrator of the scheme or such other person as he considers appropriate, require necessary steps to be taken within such period as is specified in the notice (being a period of not less than 1 month beginning on the date of the notice) to have the designated person replaced.


(2) Where the Registrar reasonably believes that- (a) the person by whom a submission described in paragraph 3 of Part 3 of Schedule 1 was made as

regards a registered scheme has died or is incapacitated or cannot be contacted; or (b) in case there is more than one such person, each of them has died or is incapacitated or cannot be

contacted; or (c) in case the person is a body of persons (whether incorporated or unincorporated), it is being or has

been wound up or has otherwise ceased to exist, he may by notice in writing given to the designated person of the scheme require to be made to him within such period as is specified in the notice (being a period of not less than 1 month beginning on the date of the notice) an application in writing to substitute another submission for the relevant submission (as defined in subsection (6)).

(3) Where the Registrar gives a notice to a person under subsection (1) as regards a registered scheme, the person shall within the period specified in the notice lodge with the Registrar an undertaking described in section 15(f) and relating to the scheme given by such person as the Registrar may consider suitable.

(4) Where application is made in respect of a registered scheme under subsection (2), the application shall be allowed if-

(a) the application is accompained by a submission described in paragraph 3 of Part 3 of Schedule 1 and relating to the scheme; and

(b) the Registrar is satisfied that such submission is in an appropriate form and the person making the submission is a suitable person to make it.

(5) Where the Registrar- (a) receives an undertaking relating to a registered scheme under subsection (3), the person who gives the

undertaking shall thenceforth become the designated person of the scheme; (b) allows an application relating to a registered scheme made under subsection (2), the submission shall

thenceforth take the place of the relevant submission (as defined in subsection (6)) as regards the scheme for the purposes of this Ordinance.

(6) In relation to an application under this section, "the relevant submission" (有關願受管轄書) means the submission to jurisdiction accepted by the Registrar when the application for registration of the relevant registered scheme was allowed.

(Enacted 1992) Section: 40 Release from undertaking 30/06/1997

(1) The Registrar may on an application in writing by a person who has given an undertaking referred to in section 15(f), 38 or 39(3) release such person from the undertaking.

(2) Where a person makes an application under subsection (1) in respect of a registered scheme and- (a) he is for the time being the only designated person of the scheme; or (b) (where the scheme is governed by a trust and the applicant has ceased or will cease acting as a trustee

of the trust) the terms of the relevant trust instrument require appointment of a trustee to replace the applicant,

the Registrar shall not allow the application unless- (i) the application is accompained by a new undertaking described in section 15(f) and relating to the

scheme; and (ii) the Registrar is satisfied that the person giving the new undertaking is a suitable person to give it.

(3) Where the Registrar allows an application under subsection (2), the person who gives the new undertaking shall thenceforth take the place of the applicant as the designated person of the relevant registered scheme.

(Enacted 1992) Section: 41 Release from submission 30/06/1997

(1) A person who has made a submission described in paragraph 3 of Part 3 of Schedule 1 may apply in writing to the Registrar to release him from the submission and substitute for it a submission by another person.

(2) Where a person makes an application under subsection (1) in respect of a registered scheme and he is for the time being the only person who made the submission in respect of the scheme, the Registrar shall not allow the application unless-


(a) the application is accompained by a submission described in paragraph 3 of Part 3 of Schedule 1 and relating to the same scheme; and

(b) the Registrar is satisfied that the submission is in an appropriate form and the person proposing to make the submission is a suitable person to make it.

(3) Where the Registrar allows an application made under subsection (1) relating to a registered scheme, the submission which accompained the application shall thenceforth, as regards the scheme, for the purposes of this Ordinance take the place of the submission accepted by the Registrar when the application for registration of such scheme was allowed or, in case the applicant is one of the persons who made the original submission, take the place of such submission to the extent it was made by the applicant.

(Enacted 1992) Part: VI CANCELLATION OF REGISTRATION 30/06/1997

(Enacted 1992) Section: 42 Grounds for cancellation of registration 30/06/1997

Where in relation to a registered scheme it appears to the Registrar that- (a) any requirement of section 20 is not complied with; (b) the requirement of section 21 is not complied with; (c) any requirement of section 24 is not complied with; (d) any requirement under section 26(1) is not complied with; (e) any requirement under section 27(7) is not complied with; (f) the requirement of section 28(3) is not complied with; (fa) a notice has been given under section 29(1); (Added 53 of 1995 s. 19) (g) any requirement of section 30 is not complied with; (h) the requirement of section 31 is not complied with; (i) any requirement under section 32(1) is not complied with; (j) any requirement under section 33 is not complied with; (k) the requirement of section 37(1) is not complied with; (l) a notice has been given under section 37(2) and no application was made under that section as regards

the scheme or that an application made under that section is refused; (m) a notice has been given under section 39(1) and no undertaking was given to the Registrar in

accordance with section 39(3); (n) a notice has been given under section 39(2) and no application was made under that section as regards

the scheme; or (o) on information available to him the cancellation of the registration of the scheme will be in the

interests of the members of the scheme as a whole, the Registrar may issue a proposal to cancel registration of the scheme.

(Enacted 1992) Section: 43 Proposal to cancel registration 30/06/1997

(1) Where the Registrar issues a proposal to cancel registration of a registered scheme under section 42, he shall-

(a) publish a notice containing the proposal in at least one newspaper in the English language and one in the Chinese language circulating daily in Hong Kong; and

(b) give a notice in writing of the proposal to the relevant employer and designated person of the scheme requiring the employer to- (i) cause a copy of the notice to be sent to each member of the scheme; or (ii) display an appropriate notice of the Registrar's notice and make the latter available for inspection


(a) state the reason for issuing the proposal; and (b) state that representations or objections may be made as regards the proposed cancellation to the


Registrar within such period (being a period of not less than 1 month beginning on the date of the notice) as shall be specified in the notice.

(3) The Registrar may on an application in writing in his absolute discretion- (a) withdraw any proposal issued under section 42; or (b) extend the period referred to in subsection (2).

(4) Where the court has made an order as regards a registered scheme under section 44(1) and the Registrar withdraws a proposal as regards the scheme under subsection (3), he shall make an application under section 44(3)(a) for the withdrawal of the order.

(5) Any employer who fails to comply with a requirement under subsection (1)(b) commits an offence and shall be liable on summary conviction to a fine of $10000.

(Enacted 1992) Section: 44 Court may order freezing of assets 30/06/1997

(1) Where the Registrar issues a proposal to cancel the registration of a registered scheme under section 42, the court may on an application by the Registrar order that-

(a) the assets of the scheme shall not be assigned, transferred or otherwise disposed of; (b) no payment out of the assets of the scheme shall be made, whether to a member or otherwise,

except in accordance with the court order. (2) Any-

(a) asset assigned, transferred or disposed of; or (b) payment made out of the assets of the relevant registered scheme,

in contravention of an order made under subsection (1) shall be recoverable by such person and, after being so recovered, disposed of in such manner as the court may specify in the order.

(3) An order made under subsection (1) as regards a registered scheme shall cease to have effect- (a) if it is withdrawn by the court upon an application by the Registrar; (b) (Where an appeal is made under section 46 against the cancellation of the registration of the scheme) if

the Appeal Board directs the Registrar to restore the registration of the scheme under section 62(4)(d); or

(c) upon the making of a winding up order (if any) under section 48(2) as regards the scheme. (Enacted 1992)

Section: 45 Cancellation of registration 30/06/1997

(1) Where- (a) a notice of a proposed cancellation of the registration of a registered scheme has been given in

accordance with section 43(1); (b) the period during which representations or objections may be made has expired; (c) not less than 2 months have expired since the date of such notice; and (d) the Registrar, having considered the representations or objections (if any) made as regards the

proposed cancellation, is satisfied that- (i) a requirement of section 20 is not complied with; (ii) the requirement of section 21 is not complied with; (iii) any requirement of section 24 has not been complied with; (iv) a requirement under section 26(1) is not complied with; (v) a requirement under section 27(7) is not complied with; (vi) the requirement of section 28(3) is not complied with; (via) a notice has been given under section 29(1); (Added 53 of 1995 s. 20) (vii) a requirement of section 30 is not complied with; (viii) the requirement of section 31 is not complied with; (ix) a requirement under section 32(1) is not complied with; (x) a requirement under section 33 is not complied with; (xi) the requirement of section 37(1) is not complied with; (xii) a notice has been given under section 37(2) and no application was made under that section as

regards the scheme or that an application made under that section is refused;


(xiii) a notice has been given under section 39(1) and no undertaking was given to the Registrar in accordance with section 39(3);

(xiv) a notice has been given under section 39(2) and no application was made under that section as regards the scheme; or

(xv) the cancellation of the registration of the scheme will be in the interests of the members of the scheme as a whole,

the Registrar may cancel the registration of the scheme. (2) Where the Registrar cancels the registration of a registered scheme under subsection (1), he shall-

(a) publish a notice in writing in at least one newspaper in the English language and one in the Chinese language circulating daily in Hong Kong; and

(b) give a notice in writing to the relevant employer of the scheme requiring him to- (i) cause a copy of the notice to be sent to each member of the scheme; or (ii) display an appropriate notice of the Registrar's notice and make the latter available for inspection

by such member. (3) A notice published or given by the Registrar under subsection (2) shall state-

(a) the decision of the Registrar; (b) that appeal against the cancellation may be made by the relevant employer of the scheme to the Appeal

Board within 2 months after the date of the notice; and (c) the date on which the cancellation will come into effect.

(4) Any employer who fails to comply with a requirement under subsection (2)(b) commits an offence and shall be liable on summary conviction to a fine of $10000.

(Enacted 1992) Section: 46 Appeal against cancellation 30/06/1997

Where the Registrar cancels the registration of a registered scheme under section 45(1), the relevant employer of the scheme may, within 2 months after the date of the notice given under section 45(2)(b), appeal to the Appeal Board against the cancellation.

(Enacted 1992) Section: 47 Coming into effect of cancellation 30/06/1997

(1) A cancellation under section 45(1) shall not come into effect- (a) where no appeal is made in relation to it under section 46, until the period during which such an appeal

may be made has expired; or (b) where such an appeal is made, pending determination of the appeal or, in case such appeal is

withdrawn, before such withdrawal. (2) Where the Registrar cancels the registration of a registered scheme, in order to afford an opportunity to

enable the requirement of or under this Ordinance which caused him to cancel the registration to be complied with, he may defer the coming into effect of the cancellation and if so, shall give a notice in writing of deferment to the designated person and relevant employer of the scheme.

(3) The Registrar shall- (a) publish a notice of the coming into effect of the cancellation in at least one newspaper in the English

language and one in the Chinese language circulating daily in Hong Kong; (b) give a notice in writing of the coming into effect of the cancellation to the relevant employer of the

relevant scheme requiring him to- (i) cause a copy of the notice to be sent to each member of the scheme; or (ii) display an appropriate notice of the Registrar's notice and make the latter available for inspection

by such member. (4) Any employer who fails to comply with a requirement under subsection (3)(b) commits an offence and shall

be liable on summary conviction to a fine of $10000. (Enacted 1992)


Section: 48 Application for winding up of Hong Kong domiciled schemes

30/06/1997

(1) Where the Registrar cancels the registration of a Hong Kong domiciled scheme, the Registrar, the relevant employer of the scheme or any member of the scheme may apply to the court to exercise its power under this section.

(2) Upon an application made under subsection (1) the court may, if it considers it just and equitable to do so- (a) order the scheme to be wound up in accordance with a proposal submitted by the applicant; (b) order the scheme to be wound up in accordance with a proposal so submitted but modified in a manner

specified by the court; or (c) order the scheme to be wound up by the court.

(3) Where the court makes an order under subsection (2), the provisions of Part VII shall apply. (Enacted 1992)

Part: VII WINDING UP OF HONG KONG DOMICILED

SCHEMES 30/06/1997

(Enacted 1992) Section: 49 Appointment of liquidator 25 of 1998 01/07/1997


(1) Where the court makes an order under section 48(2), it shall appoint a liquidator as regards the occupational retirement scheme being wound up for the purposes of conducting the winding up and performing related functions under this Ordinance.

(2) The court may on an application made by the Registrar remove a liquidator from his office. (3) A liquidator may by notice in writing given to the Registrar of the High Court resign from his office.

(Amended 25 of 1998 s. 2) (4) Where the office of a liquidator becomes vacant by whatever reason, the court may appoint any other

person to fill the vacancy. Section: 50 Remuneration of liquidator 30/06/1997

Where a person other than a public officer is appointed liquidator as regards an occupational retirement scheme, he shall receive such remuneration as is determined-

(a) where there is a consultative committee formed in respect of the members of the scheme, by agreement between the liquidator and the committee; or

(b) where there is no consultative committee or the liquidator and the committee fail to agree, by the court. (Enacted 1992)

Section: 51 Powers of liquidator 30/06/1997

A liquidator appointed as regards an occupational retirement scheme shall have power- (a) to sell the assets of the scheme by public auction or private contract, with power to transfer the whole

thereof to any person or company, or to sell the same in parcels; (b) (notwithstanding any term of the scheme) to bring or defend any action or other legal proceedings in

the name and on behalf of the beneficiaries under the scheme; (c) to make any compromise or arrangement with respect to any debt, claim or liability relating to the

assets of the scheme; (d) to engage the service of other persons to assist him in the performance of his functions; (e) to do such other things as may be necessary for winding up the scheme and distributing its assets.

(Enacted 1992)


Section: 52 Vesting of assets of scheme in liquidator 30/06/1997

(1) Where the court makes an order as regards an occupational retirement scheme under section 48(2), all the assets of the scheme shall vest thereupon in the liquidator who shall take such assets into his custody.

(2) The court may, upon or at any time after making the order under section 48(2), require any authorized insurer, trustee, banker, agent, the relevant employer of the scheme or any of his employees to pay, deliver, convey, surrender or transfer within such time as the court may direct to the liquidator any money, property, books or records to which the liquidator is entitled by virtue of subsection (1).

(3) On the appointment of a liquidator, all the powers of the administrator of the relevant scheme acting in his capacity as such shall cease.

(Enacted 1992) Section: 53 Effect of winding-up order 30/06/1997

(1) Where the court makes an order under section 48(2) as regards an occupational retirement scheme whose registration was cancelled by the Registrar, the winding up of the scheme shall be deemed to have commenced on the date of the notice published under section 43(1)(a) as regards the scheme.

(2) Any benefit which but for this subsection would become payable to a member of the scheme under the scheme on or after the commencement of the winding up shall not be payable and any such benefit which has been paid to a member shall be recoverable by the liquidator as a civil debt due to the beneficiaries under the scheme.

(Enacted 1992) Section: 54 Avoidance of preference in certain cases 30/06/1997

Every- (a) transfer of assets of an occupational retirement scheme; and (b) encumbrance created over such asset,

in favour of any creditor with a view to giving such creditor (or any surety or guarantor for the debt due to such creditor) a preference over the other creditors shall, if the winding up of the scheme by virtue of a winding-up order made under section 48(2) as regards the scheme commences within 6 months after the date of such transfer or creation, be deemed fraudulent and void as against the liquidator appointed as regards the scheme.

(Enacted 1992) Section: 55 Saving of bona fide transactions, etc. 30/06/1997

Nothing in section 52, 53 and 54 shall invalidate- (a) any payment of benefit to a member of an occupational retirement scheme under the scheme before the

commencement of the winding up of the scheme; or (b) any bona fide contract, dealing or transaction made over any asset of the scheme for valuable

consideration. (Enacted 1992)

Section: 56 Distribution of assets 30/06/1997

(1) Subject to subsections (2), (3) and (4), the assets of an occupational retirement scheme shall on its winding up be applied by the liquidator in satisfaction of its liabilities as at the date on which the winding up commenced pari passu.

(2) The assets remaining after payment of the actual expenses incurred in realizing any of the assets of the scheme shall be applied in satisfaction of the following liabilities, which shall be satisfied in the following order of priority-

(a) the remuneration of and expenses incurred by the liquidator; (b) liabilities to general creditors; (c) (unless the terms of the scheme otherwise provide) vested liabilities to the beneficiaries of the scheme

as at the date on which the relevant winding-up order is made; and


(d) (unless the terms of the scheme otherwise provide) such part of the past service liabilities to the beneficiaries of the scheme (if any) which exceeds the vested liabilities thereto as at the date on which the relevant winding-up order is made.

(3) The surplus (if any) remaining after satisfaction of all liabilities mentioned in subsection (2) shall be paid to the relevant employer of the scheme unless the terms of the scheme otherwise provide.

(4) Where the assets of the scheme are not sufficient to meet its liabilities, the court may, notwithstanding any term of the scheme, direct that-

(a) those liabilities which are of a class or description specified by the court shall be discharged before any other liability of the scheme is wholly or party discharged; or

(b) as between them the discharge of those which are of specified classes or descriptions shall be preferred in an order also specified by the court.

(Enacted 1992) Section: 57 The court's power after winding up 30/06/1997

(1) Where the court makes an order as regards an occupational retirement scheme under section 48(2), the liquidator appointed as regards the scheme may make an application to the court on behalf of any beneficiary of the scheme.

(2) In an application made under subsection (1) as regards an occupational retirement scheme, the liquidator may name the relevant employer or administrator of the scheme or any person who is concerned with the operation and management of the scheme to be the respondent in the application.

(3) On an application made under subsection (1) on behalf of a beneficiary of an occupational retirement scheme, the court may-

(a) determine a sum which in its opinion equals the shortfall (if any) between the beneficiary's vested benefits under the scheme as at the date of the commencement of the winding up of the scheme and the amount received by him under section 56(2); and

(b) if it is satisfied that the shortfall referred to in paragraph (a) is caused by any act or omission of any respondent in the application, give judgment against the respondent for an amount equal to the sum determined under paragraph (a).

(Enacted 1992) Section: 58 Court may give directions 30/06/1997

The court may upon application by a liquidator give such directions as it thinks fit in relation to any matter arising under the winding up.

(Enacted 1992) Section: 59 Exercise of the powers of the court 10 of 2005 08/07/2005

Unless otherwise ordered by the court in a particular case, the powers of the court under this Part shall be exercisable by-

(a) the Registrar of the High Court; (aa) any Senior Deputy Registrar of the High Court; (Added 10 of 2005 s. 183) (b) any Deputy Registrar of the High Court; or (Amended 10 of 2005 s. 183) (c) any Assistant Registrar of the High Court appointed by the Registrar of the High Court for the

purposes of this section. (Amended 25 of 1998 s. 2)

Section: 60 Offences relating to winding up 30/06/1997

Any person who- (a) without reasonable excuse fails to comply with a direction given under section 52(2); or (b) provides any information or makes any representation which is false in a material particular and

which-


(i) he knows to be false in such particular; or (ii) he has no reasonable ground to believe to be true in such particular, to a liquidator,

commits an offence and shall be liable on summary conviction to a fine of $20000 and to imprisonment for 6 months. (Enacted 1992)

Part: VIII APPEALS 30/06/1997

(Enacted 1992) Section: 61 Appeal Board 31 of 1999 01/07/1997


(1) Every appeal made under sections 8, 13, 19 and 46 shall be determined by the Appeal Board to be known as the Occupational Retirement Schemes Appeal Board.

(2) The Chief Executive shall appoint a person to be the Chairman of the Appeal Board and such number of persons as he thinks fit to be the Deputy Chairmen of the Appeal Board. (Amended 31 of 1999 s. 3)

(3) Subject to subsection (7), the Chairman or any Deputy Chairman shall be appointed for a term of not more than 2 years but may be reappointed.

(4) A person appointed under subsection (2) shall be a solicitor or barrister admitted under the Legal Practitioners Ordinance (Cap 159).

(5) The Chief Executive shall appoint a panel of persons not being public officers whom he considers suitable for appointment under section 62 as members of the Appeal Board. (Amended 31 of 1999 s. 3)

(6) An appointment under subsection (2) or (5) shall be notified in the Gazette. (7) The Chairman and any Deputy Chairman or person appointed under subsection (5) may at any time resign

by notice in writing to the Chief Executive. (Amended 31 of 1999 s. 3) (8) The Chairman and any Deputy Chairman or person appointed under subsection (5) shall be remunerated out

of money provided by the Legislative Council for that purpose at a rate that the Financial Secretary may determine. (Enacted 1992)

Section: 62 Constitution and powers of Appeal Board 30/06/1997

(1) The Appeal Board shall consist of the Chairman or a Deputy Chairman who shall preside at the hearing and such number of persons, not being fewer than 2, from the panel referred to in section 61(5) as the Chairman may appoint to be members of the Appeal Board to hear any appeal.

(2) In relation to the hearing of appeals every question before the Appeal Board shall be determined by the opinion of the majority of the members hearing the appeal except a question of law which shall be determined by the Chairman or (where appropriate) the Deputy Chairman; in the case of an equality of votes the Chairman or Deputy Chairman shall have a casting vote.

(3) In hearing an appeal the Appeal Board may- (a) receive and consider any material, whether by way of oral evidence, written statements, documents or

otherwise, and whether or not it would be admissible in a court of law; (b) by notice in writing signed by the Chairman, summon any person-

(i) to produce to it any document that is relevant to the appeal and is in his custody or under his control; or

(ii) to appear before it and to give evidence relevant to the appeal; (c) administer oaths and affirmations; (d) require evidence to be given on oath or affirmation; (e) make an award of such sum, if any, in respect of the costs involved in the appeal as is just and

equitable in all the circumstances of the case. (4) After hearing an appeal made in respect of an occupational retirement scheme-

(a) under section 8, the Appeal Board may determine the appeal by confirming the Registrar's decision or directing the Registrar to issue an exemption certificate in respect of the scheme;


(b) under section 13, the Appeal Board may determine the appeal by confirming the Registrar's decision or directing the Registrar to restore the relevant exemption certificate;

(c) under section 19, the Appeal Board may determine the appeal by confirming the Registrar's decision or directing the Registrar to register the scheme;

(d) under section 46, the Appeal Board may determine the appeal by confirming the Registrar's decision or directing the Registrar to restore the registration of the scheme.

(Enacted 1992) Section: 63 Appeal Board's decision is final 30/06/1997

Subject to section 65, the determination of an appeal by the Appeal Board or any order as to costs made by the Appeal Board shall be final.

(Enacted 1992) Section: 64 Supplementary provisions relating to appeals L.N. 296 of 1999 10/01/2000


(1) The procedure and practice of the Appeal Board shall, subject to this Ordinance, be determined by the Chairman.

(2) If the Chairman is precluded by illness, absence from Hong Kong or any other cause from exercising his functions, the Chief Executive may appoint a Deputy Chairman to act as Chairman and as such to exercise all the functions of the Chairman during the period of his appointment. (Amended 31 of 1999 s. 3)

(3) If a person appointed by the Chairman under section 62(1) to hear an appeal is precluded by illness, absence from Hong Kong or any other cause from exercising his functions, the Chairman may appoint any other person from the panel referred to in section 61(5) to act in his place.

(4) In the hearing of an appeal, the appellant and the Registrar shall be entitled to be heard either in person or through a solicitor or barrister and if the appellant is a body corporate, through any of its directors or employees or if a partnership, through any of the partners or, with the leave of the Appeal Board, through any other person.

(5) In relation to any appeal to the Appeal Board, the members of the Appeal Board, the appellant, and any witness, representative or other person appearing before the Appeal Board shall have the same privileges and immunities as they would have if the proceedings were civil proceedings before a court.

(6) Any sum awarded to the Registrar under section 62(3)(e) shall be a debt due to the Registrar and recoverable in the District Court and any sum payable by the Registrar under such an award shall be charged on the MPFA Administration Account established and maintained under section 6M of the Mandatory Provident Fund Schemes Ordinance (Cap 485). (Amended 4 of 1998 s. 4)

(Enacted 1992) Section: 65 Case may be stated for Court of Appeal 30/06/1997

(1) The Appeal Board may refer any question of law arising in an appeal to the Court of Appeal for determination by way of case stated.

(2) On the hearing of the case, the Court of Appeal may amend the case or order it to be sent back to the Appeal Board for amendment.

(3) Where a case is stated under subsection (1), the Appeal Board shall not determine the relevant appeal before the Court of Appeal determines the relevant point of law.

(Enacted 1992) Section: 66 Offences relating to appeal E.R. 2 of 2014 10/04/2014

Any person who without reasonable excuse refuses or fails- (a) to attend and give evidence when required to do so by the Appeal Board; (b) to answer truthfully and completely questions put to him by the Appeal Board; (c) to produce any document which he is required by the Appeal Board to produce,


commits an offence and shall be liable on summary conviction to a fine at level 4 and to imprisonment for 6 months. (Enacted 1992. Amended E.R. 2 of 2014)

Part: IX MISCELLANEOUS 30/06/1997

(Enacted 1992) Section: 67 Special provisions for schemes covering groups of

companies 30/06/1997

(1) Subject to this section, an occupational retirement scheme must only cover 1 relevant employer. (Replaced 53 of 1995 s. 21)

(1A) Relevant employers from within a grouping of companies may operate, contribute to or participate in, group occupational retirement scheme that covers 2 or more companies from within the grouping of companies. (Added 53 of 1995 s. 21)

(1B) The relevant employers from within the grouping of companies must jointly or severally by power of attorney nominate one of themselves, or the holding company of a group of companies within the grouping of companies, as the representative employer for the purposes of the scheme. (Added 53 of 1995 s. 21)

(1C) For the purpose of this section- (a) "grouping of companies" (公司集團) means companies that are associated companies or are within a

group of companies and includes associated companies of a member of a group of companies; (b) "group of companies" (同一集團的公司) means a holding company and its subsidiaries; (c) companies are regarded as being associated companies if-

(i) one of the companies holds, or is entitled to control the exercise of, 20% or more of the voting power in the other company's general meetings;

(ii) one of the companies is a subsidiary of an associated company; or (iii) they are partners under a written partnership agreement. (Added 53 of 1995 s. 21)

(1D) If a relevant employer in a scheme that covers 2 or more employers ceases to comply with a relationship requirement under this section, the relevant employer shall-

(a) notify the representative employer and the Registrar within 1 month of ceasing to comply; and (b) withdraw from the scheme within 3 months or such further time as the Registrar allows in the

circumstances, unless within that time the relevant employer resumes compliance. (Added 53 of 1995 s. 21)

(1E) The relevant employer is required to withdraw from a scheme by arranging for either- (a) the transfer of the rights of the members who are employed by the withdrawing relevant employer and

corresponding assets of the scheme to another registered or exempted scheme or, where the affected members are employed outside Hong Kong, to a scheme outside Hong Kong; or

(b) the orderly winding up of that part of the scheme that applies to the withdrawing relevant employer. (Added 53 of 1995 s. 21)

(1F) A relevant employer who, without reasonable excuse, fails to notify the representative employer or the Registrar under subsection (1D)(a) commits an offence and is liable on summary conviction to a fine at level 3. (Added 53 of 1995 s. 21)

(1G) A relevant employer commits an offence and is liable on summary conviction to a fine at level 3 if he, without reasonable excuse, fails to withdraw from a scheme as required under subsection (1D)(b) or to make the arrangement as required under subsection (1E)(a) or (b). (Added 53 of 1995 s. 21)

(2) Where an occupational retirement scheme covers 2 or more relevant employers and all of them (except the nominated representative employer) nominate the same representative employer under subsection (1), the following provisions shall apply-

(a) an application made as regards the scheme under section 7, 15, 23(3) or 48(1) by the representative employer shall be deemed to be an application made by each of the employers covered by the scheme;

(b) payment of a fee payable as regards the scheme under section 9(1) or 28(1) by the representative employer shall discharge the duty of all other employers covered by the scheme to pay such fee;

(c) an appeal made as regards the scheme under section 8, 13, 19 or 46 by the representative employer shall be deemed to be an appeal made by each of the employers covered by the scheme;


(d) a duty under this Ordinance to give or supply notices, statements, particulars or information to a member of the scheme shall be discharged by the employer who employs the members;

(e) a notice given as regards the scheme by the Registrar under section 11(2)(b), 12(2)(b), 14(2), 14(3)(b), 32(4)(a), 36(4), 39(1), 43(1)(b), 45(2)(b), 47(2) or 47(3)(b) to the representative employer shall, unless otherwise stated in the notice, be deemed to have been given to every employer covered by the scheme; (Amended 53 of 1995 s. 21)

(f) the duty of a consultative committee formed by the members of the scheme to give notice or advice to the relevant employer of the scheme under section 34 shall be discharged by giving the notice or advice to the representative employer;

(g) the duty under section 10(1)(d), (f) and (g) shall be discharged as regards the scheme by the representative employer; (Amended 53 of 1995 s. 21)

(ga) the representative employer of an exempted scheme shall, for each period of 12 months beginning on the date of the exemption certificate or on an anniversary of the date, give the Registrar- (i) for a scheme exempted under section 7(4)(a), documentary evidence to satisfy the Registrar of

the validity of the relevant registration or approval during the period; or (ii) for a scheme exempted under section 7(4)(b) or (c), a written statement of the total number of

members of the scheme and the number of the members who were Hong Kong permanent identity card holders on the date of the statement,

within 14 days after the expiration of the period or such longer period as the Registrar may allow; (Added 53 of 1995 s. 21)

(gb) the representative employer shall notify the Registrar of a change of representative employer within 1 month of the change; (Added 53 of 1995 s. 21)

(gc) the representative employer shall notify the Registrar of a change to his name or address- (i) for a registered scheme for which he is the representative employer within 1 month of the

change; and (ii) for an exempted scheme for which he is the representative employer as soon as is reasonably

practicable after the change; (Added 53 of 1995 s. 21) (gd) the representative employer shall notify the Registrar of the matters prescribed in rules and required

under section 21A(2) within 1 month after the change to the name of the scheme; (Added 53 of 1995 s. 21)

(ge) the representative employer of a registered group scheme shall notify the Registrar of any change of the administrator of the scheme as required under section 22(1)(b); (Added 53 of 1995 s. 21)

(gf) the Registrar may give notice under section 26(1) to the representative employer of a registered group scheme and the representative employer is required to comply with notice given under that section in addition to a requirement placed on a relevant employer under that section and the representative employer may apply for an extension of time under section 26(2); (Added 53 of 1995 s. 21)

(h) a notice required to be given as regards the scheme to the Registrar under section 29 shall be given by the representative employer;

(i) an exemption certificate or registration certificate issued under section 7(1) or 18(5) as regards the scheme shall be issued to the representative employer.

(3) A representative employer who without reasonable cause fails to notify the Registrar under section 10(1)(d) as required under subsection (2)(g) commits an offence and is liable on summary conviction to a fine at level 1. (Added 53 of 1995 s. 21)

(4) A representative employer who without reasonable cause fails to notify the Registrar under section 10(1)(f) as required under subsection (2)(g) commits an offence and is liable on summary conviction to a fine at level 3. (Added 53 of 1995 s. 21)

(5) A representative employer who without reasonable cause fails to discharge his duty under subsection (2)(g) in relation to a notice under section 10(1)(g) commits an offence and is liable on summary conviction to a fine at level 6. (Added 53 of 1995 s. 21)

(6) A representative employer who without reasonable cause fails to notify the Registrar on the change of representative employer as required under this section commits an offence and is liable on summary conviction to a fine at level 3. (Added 53 of 1995 s. 21)

(7) A representative employer who without reasonable cause fails to give a notice under subsection (2)(gc) commits an offence and is liable on summary conviction to a fine at level 3. (Added 53 of 1995 s. 21)

(8) A representative employer who without reasonable cause fails to give notice under subsection (2)(gd)


commits an offence and is liable on summary conviction to a fine at level 1. (Added 53 of 1995 s. 21) (9) A representative employer who without reasonable cause fails to give notice under subsection (2)(ge)

commits an offence and is liable on summary conviction to a fine at level 3. (Added 53 of 1995 s. 21) (10) A representative employer who without reasonable cause fails to give a notice under subsection (2)(h) as

required under section 29 commits an offence and is liable on summary conviction to a fine at level 3. (Added 53 of 1995 s. 21)

(Enacted 1992) Section: 68 Qualification of auditor 30/06/1997

(1) Any thing required to be done under this Ordinance or any statement, report or other document required to be made or prepared under this Ordinance by an auditor in respect of a Hong Kong domiciled scheme or proposed Hong Kong domiciled scheme shall be done, made or prepared by a Hong Kong accountant.

(2) Any thing required to be done under this Ordinance or any statement, report or other document required to be made or prepared under this Ordinance by an auditor in respect of an offshore scheme or proposed offshore scheme shall be done, made or prepared by-

(a) a Hong Kong accountant; or (b) a person-

(i) who may lawfully practise as a professional accountant in the country or jurisdiction which is the domicile of the scheme; and

(ii) without prejudice to subparagraph (i), who holds such qualification as the Registrar may accept as being of a standard comparable to that of a Hong Kong accountant.

(3) Any thing required to be done under this Ordinance or any statement, report or other document required to be made or prepared under this Ordinance by an auditor in respect of an occupational retirement scheme shall be done, made or prepared by an auditor who is not-

(a) a partner, director or employee of the administrator of the scheme; (b) the relevant employer of the scheme; (c) an associate or employee of the employer; or (d) a person having a contract of service with an employee referred to in paragraph (a) or (c).

(4) Where a statement, report or other document which purports to be made or prepared by an auditor in respect of an occupational retirement scheme is received by the Registrar, the Registrar may require-

(a) the person by whom the statement, report or other document purports to have been made or prepared; (b) the administrator of the scheme; or (c) the relevant employer of the scheme,

to supply to the Registrar a statement in writing, in a form specified by the Registrar, that the person is not a person referred to in subsection (3)(a), (b), (c) or (d).

(Enacted 1992) Section: 69 Actuaries and solicitors to be independent of relevant

employers 30/06/1997

(1) Any thing required to be done under this Ordinance or any statement, certificate, report or other document required to be made or prepared under this Ordinance by an actuary or a solicitor in respect of an occupational retirement scheme shall be done, made or prepared by an actuary or solicitor who is not-

(a) the relevant employer of the scheme; (b) an associate or employee of the employer; or (c) a person having a contract of service with an employee referred to in paragraph (b).

(2) Where a statement, certificate, report or other document which purports to be made or prepared by an actuary or a solicitor in respect of an occupational retirement scheme is received by the Registrar, the Registrar may require-

(a) the person by whom the statement, certificate, report or other document purports to have been made or prepared;

(b) the administrator of the scheme; or (c) the relevant employer of the scheme,

to supply to the Registrar a statement in writing, in a form specified by the Registrar, that the person is not a person


referred to in subsection (1)(a), (b) or (c). (Enacted 1992)

Section: 70 Professional qualifications 30/06/1997

(1) Where a certificate, statement or report either accompanies an application for registration or is sent or supplied to the Registrar pursuant to a requirement under this Ordinance, the Registrar may by notice in writing require-

(a) in the case of an application, the applicant; or (b) in any other case, the designated person of the relevant scheme,

to supply to the Registrar, within such period as is specified in the notice (being a period of not less than 1 month beginning on the date of the notice), particulars of the professional or other qualifications and experience of the person by whom the certificate, statement or report was given, issued or made.

(2) Where the Registrar makes a requirement under subsection (1) and- (a) the requirement is not complied with; or (b) having had regard to the purposes of this Ordinance and the result of relevant inquiries (if any) made

by him under subsection (3), the Registrar reasonably considers the person by whom such certificate, statement or report was given, issued or made not to be suitably qualified to give, issue or make it,

he shall refuse to accept the relevant certificate, statement or report. (3) Where the Registrar issues a notice under subsection (1), he may make such inquiries as he considers

appropriate regarding the qualifications or experience of the person by whom the relevant certificate, statement or report was given, issued or made.

(Enacted 1992) Section: 70A Certain amounts relating to severance payments and long

service payments to be paid from vested benefits L.N. 120 of 2000 01/12/2000

(1) If- (a) an employer has paid to or in respect of an employee a severance payment or long service payment in

accordance with the Employment Ordinance (Cap 57), or a part of such a payment; and (b) vested benefits are held in an occupational retirement scheme in respect of the employee; and (c) a part of those benefits is attributable to contributions paid to the scheme by the employer in

accordance with this Ordinance, the employer may make an application in writing to the administrator of the scheme for payment of an amount under subsection (2).

(2) As soon as practicable after receiving an application under subsection (1) and on being satisfied as to the employer's entitlement to a payment under this subsection, the administrator of the occupational retirement scheme concerned must-

(a) if the severance payment or long service payment paid to the employee is not more than the amount of the part of the employee's vested benefits that is attributable to the employer's contributions, pay to the employer from those benefits an amount equal to the amount of that severance payment or long service payment; or

(b) if that severance payment or long service payment is more than the amount of the part of the employee's vested benefits that is attributable to the employer's contributions, pay to the employer from those vested benefits an amount equal to the amount of that part.

This subsection is subject to subsection (5). (3) If-

(a) an employer has not paid the whole of a severance payment or long service payment to or in respect of an employee as required by the Employment Ordinance (Cap 57); and

(b) vested benefits are held in an occupational retirement scheme in respect of the employee; and (c) a part of those benefits is attributable to contributions paid to the scheme by the employer in

accordance with this Ordinance, an application may be made in writing by or in respect of the employee to the administrator of the scheme for payment of an amount under subsection (4).

(4) As soon as practicable after receiving an application under subsection (3), the administrator of the


occupational retirement scheme concerned must, on being satisfied that an employer has not paid the whole of a severance payment or long service payment required to be paid to or in respect of the employee concerned-

(a) if the amount of the severance payment or long service payment that has not been paid to the employee is not more than the amount of the part of the employee's vested benefits attributable to the employer's contributions, pay to or in respect of the employee from those vested benefits an amount equal to the amount of that severance payment or long service payment to the extent that it has not been paid; or

(b) if the amount of the severance payment or long service payment that has not been paid is more than the amount of the part of the employee's vested benefits attributable to the employer's contributions, pay to or in respect of the employee from those benefits an amount equal to the amount of that part.

(5) If- (a) only a part of a severance payment or long service payment has been paid to or in respect of an

employee; and (b) the amount of the employee's vested benefits attributable to the employer's contributions is more than

the unpaid part of the severance payment or long service payment but less than the total payment that is required to be made,

the employer is entitled to be paid under subsection (2) the amount of those vested benefits only to the extent that they exceed the unpaid part of the severance payment or long service payment.

(6) If- (a) a change has occurred (whether by virtue of a sale or other disposition or by operation of law) in the

ownership of a business in which a person is employed, or in a part of such a business, and either- (i) the person's contract of employment (with the substitution of the new owner of the business for

the previous owner) is renewed by that new owner; or (ii) the person is re-engaged by that new owner under a new contract of employment; or

(b) a person is taken into the employment of an associated company of another company by which the person was employed immediately before the person was taken into that employment,

this section applies to a severance payment or long service payment, or a contribution, paid by the previous owner as if it had been paid by the new owner or the associated company. This subsection has effect whether or not the previous owner may have terminated the employee's contract in accordance with section 6 or 7 of the Employment Ordinance (Cap 57).

(7) For the purposes of subsection (6), 2 companies are taken to be associated companies if one is the subsidiary of the other, or both are subsidiaries of a further company.

(8) This section also applies, with any necessary modifications, to an occupational retirement scheme within the meaning of the Employment Ordinance (Cap 57) that is not an occupational retirement scheme within the meaning of this Ordinance.

(Added 4 of 1998 s. 4) Section: 71 Chief Executive may amend Schedules 31 of 1999 01/07/1997


The Chief Executive may amend any Schedule by order published in the Gazette. (Enacted 1992. Amended 31 of 1999 s. 3)

Section: 72 Legislative Council may substitute percentage and number 30/06/1997

The Legislative Council may by resolution substitute the percentage or number of persons in section 7(4)(b), 7(4)(c), 11(1)(b), 12(1)(b), 27(2)(a) or 32(1)(a)(iii).

(Enacted 1992) Section: 73 Rules L.N. 163 of 2013 03/03/2014

(1) The Registrar may make rules- (a) for the purposes of the definition of "associate" (有關連人士);


(b) for the purposes of the definition of "insurance arrangement" (保險安排);

(c) prescribing fees for the purposes of the definition of "prescribed fee" (訂明費用); (d) in relation to registration of occupational retirement schemes under this Ordinance; (da) for details to be supplied on notice of changes to registered schemes, exempted schemes and pooling

agreements; (Added 53 of 1995 s. 22) (e) for the purposes of section 24(3)(a)(iii); (ea) for the purposes of section 24A and, in particular, for the purposes of determining when a contribution

becomes due; (Added 4 of 1998 s. 4) (f) for the purposes of the requirement of section 25(2); (g) providing for passing of resolutions referred to in section 20(5)(c) or 35(3)(b); (h) providing for the preparation of actuarial certificates to be supplied under this Ordinance; (i) for the purposes of section 31; (j) providing for the formation, constitution, proceedings and dissolution of consultative committees; (k) providing for other matters incidental or related to consultative committees; (l) requiring any designated person to give to him notice of any proposed amendment to the relevant

registered scheme, being a proposed amendment which is of a class or description so specified; (m) for the purposes of section 37; (n) in relation to the calculation of unpaid contribution for the purpose of section 38(1)(cf) of the

Bankruptcy Ordinance (Cap 6) and section 265(1)(cf) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32); (Amended 28 of 2012 ss. 912 & 920)

(na) without prejudice to section 18(1)(c), specifying the method or methods to be used to pay benefits payable to members of registered schemes; (Added 59 of 1993 s. 23)

(nb) where a registered scheme is the subject of or regulated by an insurance arrangement, restricting- (i) the investments which the administrator of the scheme may make in relation to-

(A) the relevant employer of the scheme or an associate of such employer; (B) any non-listed company within the meaning of section 27(1);

(ii) the loans which that administrator may make to that employer or associate (excluding any loan which is a deposit made with an authorized institution within the meaning of the Banking Ordinance (Cap 155)); (Added 59 of 1993 s. 23)

(o) generally for the better carrying out of the provisions and objects of this Ordinance. (2) Rules made under subsection (1) may make different provisions as regards occupational retirement schemes

of different classes or descriptions. (3) Rules made under subsection (1)(nb) shall be subject to the approval of the Legislative Council. (Added 59

of 1993 s. 23) (Enacted 1992)

Section: 73A Prescribed fee on notice 30/06/1997

A person who notifies the Registrar of a change of the particulars of a registered scheme or an exempted scheme shall pay the prescribed fee for giving the notice.

(Added 53 of 1995 s. 23) Section: 74 Jurisdiction of Court of First Instance 25 of 1998 01/07/1997


(1) The court shall, in relation to a scheme (including any trust by which the scheme is governed) which is, or has at any time been, a registered scheme and whose domicile is not Hong Kong, have jurisdiction to hear and determine (in accordance with the law of the scheme's domicile)-

(a) whether or not under the scheme a particular person is entitled (or prospectively entitled) to benefit at all or is entitled (or prospectively entitled) to a benefit or benefits of a particular kind;

(b) the amount of any benefit to which any particular person is entitled, or prospectively entitled, under the scheme.


(2) The jurisdiction conferred by subsection (1) shall be without prejudice to any other jurisdiction exercisable by any court, and accordingly nothing in this section shall be regarded as limiting or otherwise affecting any right or other cause of action, existing apart from this section, on the basis of which damages or any other relief or remedy may be recovered or obtained in legal proceedings.

(3) Subsection (1) shall not be construed as affecting in any way any provision of a scheme referred to in that subsection which relates to arbitration.

(4) None of the references to a person or persons in subsection (1) shall be construed as including a reference to a person, including the head of a consulate-general, consulate, vice-consulate or consular agency, entrusted in the capacity of a consular officer with the exercise of consular functions.

(Enacted 1992) Section: 75 Immunity 30/06/1997

(1) No personal liability shall be incurred by any person appointed under section 36(2) or public officer in respect of any act done, or omitted to be done, by him in good faith in the performance or purported performance of any function under this Ordinance.

(2) The protection conferred on public officers by subsection (1) in respect of any act or omission shall not in any way affect any liability of the Crown in tort for that act or omission.

(3) A person who- (a) complies with a requirement under this Ordinance; or (b) responds in good faith to an inquiry so made by the Registrar,

shall not incur any liability to any person solely by reason of that compliance or response. (Enacted 1992)

Section: 76 Legal professional privilege 30/06/1997

A barrister or solicitor admitted under the Legal Practitioners Ordinance (Cap 159) shall not be required under this Ordinance to disclose any information (other than the name and address of a client) or produce any record or other document which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege in the court.

(Enacted 1992) Section: 77 Preservation of secrecy 30/06/1997

(1) Subject to sections 32 and 78 and subsection (2), any person who acquires any information by virtue of his performance or assistance in the performance of functions under this Ordinance shall preserve secrecy with regard to such information and without prejudice to the foregoing shall not-

(a) disclose such information to any other person except where such disclosure is necessary to such performance or assistance; or

(b) suffer or permit any other person to have access to such information except where such access is necessary for that other person to perform or assist in the performance of functions under this Ordinance.

(2) Nothing in this section shall be construed as prohibiting disclosure of such information in pursuance of a court order, a rule of law or a requirement made under a rule of law.


(Enacted 1992) Section: 78 Disclosure by Registrar L.N. 106 of 2002 01/07/2002

(1) Notwithstanding section 77, the Registrar may disclose information- (a) in the form of a summary complied from information provided by persons under this Ordinance if the

summary is so complied as to prevent particulars relating to the business or identity of any such person being ascertained from it;


(b) with a view to the institution of, or otherwise for the purposes of, any criminal proceedings or any investigation in Hong Kong;

(c) in connection with any civil proceedings to which the Registrar is a party; (d) subject to subsection (2), to the Chief Executive, the Financial Secretary or the Commissioner of

Inland Revenue; (Amended L.N. 96 of 1993; 31 of 1999 s. 3; L.N. 106 of 2002) (e) relating to an offshore scheme domiciled in a country, territory or place outside Hong Kong to a

supervisory authority which in the Registrar's opinion- (i) performs in that country, territory or place functions which are generally analogous to the

functions conferred on the Registrar by this Ordinance; and (ii) is subject to adequate secrecy provisions in that country, territory or place, if the Registrar reasonably considers that such disclosure is in the interests of the members of the scheme as a whole; (Amended 31 of 1999 s. 3)

(ea) to the Authority, within the meaning of section 2 of the Mandatory Provident Fund Schemes Ordinance (Cap 485), if, in the opinion of the Registrar, the disclosure will enable or assist the Authority to perform a function conferred or imposed on the Authority by that Ordinance or any other law; (Added 4 of 1998 s. 4)

(f) to such bodies as then have been specified for the purpose of this paragraph by the Registrar in a notice published in the Gazette if, and only if, the Registrar- (i) is satisfied that the information will be used only for the purposes of disciplinary proceedings

regarding a member of that body or for the purpose of considering the institution of such proceedings; and

(ii) is of the opinion that such disclosure is desirable or expedient. (2) The Registrar shall not disclose any information to the Commissioner of Inland Revenue under subsection

(1)(d) unless the Registrar is satisfied that the information is required by the Commissioner for the purpose of assisting him to determine a question or matter which under the Inland Revenue Ordinance (Cap 112) is for the Commissioner to determine.

(3) Where information is disclosed to any person under subsection (1)(f) neither that person nor any person obtaining or receiving the information, whether directly or indirectly, from that person shall disclose the information to any other person without the written consent of the Registrar.


(Enacted 1992) Section: 79 Offence 30/06/1997

(1) Any person who in purported compliance with the provisions of this Ordinance or a requirement made under this Ordinance makes any statement or certification of facts which is false in a material particular and which-

(a) he knows to be false in such particular; or (b) he has no reasonable ground to believe to be true in such particular,

commits an offence. (2) Any person who conceals, destroys, mutilates or falsifies any document or record affecting or relating to the

assets or affairs of any occupational retirement scheme with the intention of- (a) concealing any offence under this Ordinance; or (b) obstructing any public officer, person appointed under section 36(2) or liquidator appointed under

section 49(1) in the performance of his functions under this Ordinance, commits an offence.

(3) Any person who commits an offence under subsection (1) or (2) shall be liable- (a) on conviction upon indictment, to a fine of $500000 and to imprisonment for 5 years; and (b) on summary conviction, to a fine of $100000 and to imprisonment for 6 months.

(4) Where- (a) a member of a professional body is alleged to have committed an offence under subsection (1) or (2);

or (b) it appears to the Registrar that a member of a professional body has committed any act or omission

which may constitute professional misconduct relating to an occupational retirement scheme, the Registrar may refer that matter to that professional body.


(Enacted 1992) Section: 80 Registrar may require English or Chinese version of

certain documents 30/06/1997

(1) Where a document given to the Registrar or an appointed person within the meaning of section 36 in purported compliance with a requirement of or under this Ordinance is not written in either the English or Chinese language, the Registrar may by notice in writing require the person of whom the requirement was made to send to him within such period as is specified in the notice (being a period of not less than 1 month after the date of the notice) an English or Chinese version of the document as the person may elect.

(2) Any person who fails to comply with a requirement under subsection (1) commits an offence and shall be liable on summary conviction to a fine of $10000.

(Enacted 1992) Section: 81 Notices L.N. 163 of 2013 03/03/2014

(1) A notice required to be given under this Ordinance to a person shall be properly given if- (a) in case such person is an individual, it is delivered to him or sent by post to him at the address at which

he ordinarily resides or carries on business or, if such an address is unknown, at his last known address; or

(b) in case such person is a company, it is sent by post to the company's registered office in Hong Kong; or

(c) in case such person is a non-Hong Kong company as defined by section 2(1) of the Companies Ordinance (Cap 622), it is sent by post to the principal place of business of the company in Hong Kong; or (Amended 30 of 2004 s. 3; 28 of 2012 ss. 912 & 920)

(d) in case such person is a body corporate other than a company (whether incorporated or otherwise established in Hong Kong or elsewhere), or an unincorporated body of persons, it is sent by post to any address at which the body carries on business.

(2) For the purposes of subsection (1), every body corporate other than a company and every unincorporated body of persons not being a partnership shall be deemed to carry on business at its principal office or place of business.

(Enacted 1992) Section: 82 Liability of directors, etc. 30/06/1997

(1) Where an offence under this Ordinance is committed by a corporation and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary, or other similar officer of the corporation (and whether so called or not), or any person who was purporting to act in any such capacity, he as well as the corporation, shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(2) Where an offence under this Ordinance committed by a partner is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any other partner of the relevant partnership, that other partner shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(Enacted 1992) Section: 83 (Omitted as spent—E.R. 2 of 2014) E.R. 2 of 2014 10/04/2014

Section: 84 (Omitted as spent—E.R. 2 of 2014) E.R. 2 of 2014 10/04/2014


Schedule: 1 DOCUMENTS REQUIRED FOR REGISTRATION 25 of 1998; 31 of 1999

01/07/1997

Remarks: Adaptation amendments retroactively made - see 25 of 1998 s. 2; 31 of 1999 s. 3

[sections 2, 15, 37, 39 & 41]

PART 1

BASIC DOCUMENTS FOR A SCHEME WHICH IS NOT A PARTICIPATING SCHEME OF A POOLING

AGREEMENT 1. A statement by a solicitor stating-

(a) either- (i) that the occupational retirement scheme to which the application relates is governed by a trust; or (ii) that such scheme is the subject of or regulated by an insurance arrangement; or (iii) that such scheme is neither governed by a trust nor the subject of or regulated by an insurance

arrangement; (b) whether or not in his opinion the domicile of the scheme (including any trust established under or for

the purposes of the scheme) is Hong Kong; (c) that the terms of the scheme do not permit its assets to be used to indemnify any person who manages

the scheme or any trustee thereof against any fraud, misfeasance or breach of trust; (d) that the terms of the scheme-

(i) do not enable any person, without the consent of the scheme's member concerned, to alter to the member's detriment either his accrued rights under the scheme or his vested benefits, unless such alteration is consequential upon an amendment to the terms of the scheme consented to by not less than 90% of the members of the scheme; and

(ii) provide that where an alteration described in sub-subparagraph (i) occurs, any vested benefit which the member concerned is entitled to receive as at the date of such alteration under the terms of the scheme as if the condition precedent (if any) of such entitlement had been satisfied shall, if he so elects, become payable to him; (Amended 59 of 1993 s. 24)

(e) that the terms of the scheme have the effect provided for in section 18(1)(c) and (d); and (Amended 59 of 1993 s. 24)

(f) where the scheme is the subject of or regulated by an insurance arrangement, that the terms of that arrangement provide that the sum, if any, payable by the administrator of the scheme in the event of the termination of that arrangement may be paid by the administrator only to- (i) another authorized insurer for the purposes of another insurance arrangement to which that

scheme will be subject to or regulated by; or (ii) a person who will hold that sum on trust as an asset of that scheme in accordance with the

provisions of section 25. (Added 59 of 1993 s. 24)

2. (Where the occupational retirement scheme to which the application relates is an existing scheme) a statement by an auditor stating, in relation to the latest financial year of the scheme (which financial year shall end on a date not more than 9 months before the date of the application for registration of the scheme)-

(a) whether or not in his opinion proper accounts and records have been kept as regards the assets, liabilities and financial transactions of the scheme;

(b) whether or not in his opinion as at the end of the financial year the assets of the scheme were subject to any assignment, charge, pledge or other encumbrance except- (i) the trust (if any) governing the scheme; (ii) any charge or pledge created for the purposes of securing loans necessary for meeting the

liabilities of the scheme; and (iii) any option to acquire for valuable consideration any interest in the assets of the scheme granted

in the normal course of business; and


(c) (i) (where the scheme is a defined contribution scheme)- (A) whether or not in his opinion contributions have been made in accordance with the terms of

the scheme; or (B) the shortfall (if any) in his opinion between the scheme's assets and the scheme's aggregate

vested liability as at the last day of the financial year; or (ii) (where the scheme is a defined benefit scheme)-

(A) whether an actuarial review has been conducted as regards the scheme as at a date within the last 3 years; and

(B) (where such review has been conducted) whether or not in his opinion contributions have been made in accordance with the actuarial recommendations (if any) made by the actuary as regards the contributions to be made during the financial year, following the last actuarial review conducted as regards the scheme.

(Amended 59 of 1993 s. 24) 3. A statement by the applicant stating whether or not the requirement of section 25(2) (where the scheme is an existing scheme governed by a trust) has been complied with in relation to the scheme as if it was a registered scheme or (where the scheme is a proposed scheme which will be governed by a trust) will be complied with in relation to the scheme. 4. (Where the occupational retirement scheme to which the application relates is an existing scheme) a set of audited accounts (if any) prepared in respect of the scheme in relation to the latest financial year of the scheme (which financial year shall end on a date not more than 9 months before the date of the application for registration of the scheme).

PART 2

BASIC DOCUMENTS FOR A PARTICIPATING SCHEME OF A POOLING AGREEMENT

1. A statement by the administrator of the pooling agreement-

(a) stating that the pooling agreement of which he is the administrator applies to the occupational retirement scheme to which the application relates; and

(b) stating whether or not the requirement of section 25(2) (where the scheme is an existing scheme governed by a trust) has been complied with in relation to the scheme as if it was a registered scheme or (where the scheme is a proposed scheme which will be governed by a trust) will be complied with in relation to the scheme.

2. A statement by a solicitor stating-

(a) either- (i) that the occupational retirement scheme to which the application relates is governed by a trust; or (ii) that such scheme is the subject of or regulated by an insurance arrangement;

(b) whether or not in his opinion the domicile of the scheme (including any trust established under or for the purposes of the scheme) is Hong Kong;

(c) that paragraphs (a) to (d) of section 2(4) apply in respect of the pooling agreement which (where the scheme to which the application relates is an existing scheme) applies or (where such scheme is a proposed scheme) will apply to the scheme to which the application relates;

(d) that the terms of the pooling agreement do not permit the assets of its participating schemes to be used to indemnify the administrator of the agreement against any fraud, misfeasance or breach of trust;

(e) that the terms of the scheme- (i) do not enable any person, without the consent of the scheme's member concerned, to alter to the

member's detriment either his accrued rights under the scheme or his vested benefits, unless such alteration is consequential upon an amendment to the terms of the scheme consented to by not less than 90% of the members of the scheme; and

(ii) provide that where an alteration described in sub-subparagraph (i) occurs, any vested benefit which the member concerned is entitled to receive as at the date of such alteration under the


terms of the scheme as if the condition precedent (if any) of such entitlement had been satisfied shall, if he so elects, become payable to him; (Amended 59 of 1993 s. 24)

(f) that the terms of the scheme have the effect provided for in section 18(1)(c) and (d); and (Amended 59 of 1993 s. 24)

(g) where the scheme is the subject of or regulated by an insurance arrangement, that the terms of that arrangement provide that the sum, if any, payable by the administrator of the scheme in the event of the termination of that arrangement may be paid by the administrator only to- (i) another authorized insurer for the purposes of another insurance arrangement to which that

scheme will be subject to or regulated by; or (ii) a person who will hold that sum on trust as an asset of that scheme in accordance with the

provisions of section 25. (Added 59 of 1993 s. 24) 3. (Where the occupational retirement scheme to which the application relates is an existing scheme) a statement by an auditor stating, in relation to the latest financial year of the scheme (which financial year shall end on a date not more than 9 months before the date of the application for registration of the scheme),-

(a) whether or not in his opinion proper accounts and records have been kept as regards all assets, liabilities and financial transactions of the scheme;

(b) whether or not in his opinion as at the end of the financial year the assets of the scheme were subject to any assignment, charge, pledge or other encumbrance except- (i) the trust (if any) governing the scheme; (ii) any charge or pledge created for the purposes of securing loans necessary for meeting the

liabilities of the scheme; and (iii) any option to acquire for valuable consideration any interest in the assets of the scheme granted

in the normal course of business; (c) that the value of the assets attributable to, and the liabilities of, the scheme are readily determinable

from the accounts and records kept in relation to the pooling agreement; and (d) (i) (where the scheme is a defined contribution scheme)-

(A) whether or not in his opinion contributions have been made in accordance with the terms of the scheme; or

(B) the shortfall (if any) in his opinion between the scheme's assets and the scheme's aggregate vested liability as at the last day of the financial year; or

(ii) (where the scheme is a defined benefit scheme)- (A) whether an actuarial review has been conducted as regards the scheme as at a date within

the last 3 years; and (B) (where such review has been conducted) whether or not in his opinion contributions have

been made in accordance with the actuarial recommendations (if any) made by the actuary as regards the contributions to be made during the financial year, following the last actuarial review conducted as regards the scheme.

(Amended 59 of 1993 s. 24) 4. (Where the occupational retirement scheme to which the application relates is an existing scheme) a set of audited accounts (if any) prepared in respect of the scheme in relation to the latest financial year of the scheme (which financial year shall end on a date not more than 9 months before the date of the application for registration of the scheme).

PART 3

ADDITIONAL DOCUMENT 1. Where the scheme to which the application relates

is a proposed defined benefit scheme

A certificate issued by an actuary within the 2 months prior to the date of the receipt of the application which shall either be-

(a) a full certificate certifying that-


(i) he has given an initial actuarial valuation as regards the proposed scheme; (ii) he has made recommendations to the relevant employer of the scheme on the financial

implications of the scheme (specifying in particular what would, in his opinion, be the level of contributions required to cover liabilities, including contingent and prospective liabilities, under the scheme when implemented);

(iii) following the valuation he has received from that employer a copy of that employer's written undertaking to the proposed administrator of the scheme to contribute to the scheme's funds in accordance with the recommendations; and

(iv) provided the scheme is funded in accordance with his recommendations, he would expect that- (A) the scheme's assets would be sufficient to meet the scheme's aggregate vested liability on

the establishment of the scheme and remain sufficient to meet such liability throughout the period of 3 years from the date of the certificate; and

(B) on the expiration of a period, where necessary, specified in the certificate, the scheme's assets would be sufficient to meet the scheme's aggregate past service liability; or

(b) (in the case of a proposed scheme the proposed date of establishment of which is earlier than the 5th anniversary of the commencement of section 1) a qualified certificate certifying that- (i) he has given an initial actuarial valuation as regards the proposed scheme; (ii) he has made recommendations to the relevant employer of the scheme on the financial

implications of the scheme (specifying in particular what would, in his opinion, be the level of contributions required to cover liabilities, including contingent and prospective liabilities, under the scheme when implemented);

(iii) following the valuation he has received from that employer a copy of that employer's written undertaking to the proposed administrator of the scheme to contribute to the scheme's funds in accordance with the recommendations; and

(iv) he does not expect that on the establishment of the scheme the scheme's assets would be sufficient to meet its aggregate vested liability but, providing that the scheme is funded in accordance with his recommendations,- (A) he would expect that, on the date on which a period specified in the certificate would

expire (which period shall be specified to expire on or before the 5th anniversary of the commencement of section 1), the scheme's assets would be sufficient to meet the scheme's aggregate vested liability;

(B) what he would expect to be the amount, if any, of the shortfall between the scheme's assets and the scheme's aggregate vested liability as at the date of the actuarial review covered by the first actuarial certificate to be supplied under section 31(1); and

(C) on the expiration of a period, where necessary, specified in the certificate, the scheme's assets would be sufficient to meet the scheme's aggregate past service liability.

2. Where the scheme to which the application relates

is an existing defined benefit scheme

A certificate issued by an actuary relating to the last actuarial review conducted as regards the scheme as at a date which shall not be more than 9 months before the date of the application for registration of the scheme, which certificate shall either be-

(a) a full certificate certifying that- (i) an actuarial review has been conducted as regards the scheme as of the date specified in the

certificate; (ii) in the course of the review he has had regard to the financial condition of the scheme; (iii) the review included a valuation of the scheme's liabilities (including contingent and prospective

liabilities); (iv) as at the date of the review the scheme's assets were sufficient to meet the scheme's aggregate

vested liability; (v) following the review he has made recommendations as regards funding of the scheme; (vi) following the review he has received a copy of a written undertaking by the relevant employer of

the scheme to the administrator of the scheme to contribute to the scheme's funds in accordance with those recommendations; and


(vii) provided the scheme is funded in accordance with those recommendations, he would expect that- (A) the scheme's assets would continue to be sufficient to meet the scheme's aggregate vested

liability throughout the period of 3 years from the date of the review; and (B) on the expiration of a period, where necessary, specified in the certificate, the scheme's

assets would be sufficient to meet the scheme's aggregate past service liability; or (b) a qualified certificate certifying-

(i) that an actuarial review has been conducted as regards the scheme as of the date specified in the certificate;

(ii) that in the course of the review he has had regard to the financial condition of the scheme; (iii) that the review included a valuation of the scheme's liabilities (including contingent and

prospective liabilities); (iv) that-

(A) as at the date of the review the scheme's assets were not sufficient to meet the scheme's aggregate vested liability, and stating the amount of the shortfall as at such date; or

(B) although as at the date of the review the scheme's assets were sufficient to meet the scheme's aggregate vested liability, he would not expect that the scheme's assets would continue to be sufficient to meet the scheme's aggregate vested liability throughout the period of 3 years from the date of the review;

(v) that following the review he has made recommendations as regards funding of the scheme; (vi) that following the review he has received a copy of a written undertaking by the relevant

employer of the scheme to the administrator of the scheme to contribute to the scheme's funds in accordance with those recommendations; and

(vii) provided the scheme is funded in accordance with those recommendations,- (A) what he would expect to be the amount of the shortfall between the scheme's assets and the

scheme's and the scheme's aggregate vested liability as at the expiry of 12 months from the date of the review;

(B) that he would expect that, on the date on which a period specified in the certificate would expire (which period shall be specified to expire on a day which is earlier than the 5th anniversary of the commencement of section 1), the scheme's assets would be sufficient to meet the scheme's aggregate vested liability; and

(C) that on the expiration of a period, where necessary, specified in the certificate, the scheme's assets would be sufficient to meet the scheme's aggregate past service liability.

3. Where the scheme to which the application

relates is stated to be an offshore scheme

(a) A submission to the jurisdiction of the Court of First Instance in writing to the extent requisite to enable the Court of First Instance to exercise in relation to the scheme the jurisdiction conferred by section 74. The submission is to be made by or on behalf of the trustee or (in case there is no trustee) such other person and in such form as the Registrar may direct.

(b) A statement by a solicitor stating that the terms of the scheme have the effect provided for in section 18(1)(d).

(Amended 25 of 1998 s. 2) 4. Where the scheme to which the application

relates is stated to be an offshore scheme governed by a trust

A statement by a person qualified to practise as a professional legal practitioner in the country, territory or place

stated to be the domicile of the scheme whether or not the trust instrument in his opinion requires (whether expressly or in effect) that the relevant employer of the scheme or his associate cannot act as the sole trustee of the trust.

(Enacted 1992. Amended 31 of 1999 s. 3)


Schedule: 2 ACTUARIAL CERTIFICATES 30/06/1997

[sections 2 & 31]

PART 1

FULL CERTIFICATE

A full certificate issued by the actuary shall certify that- (1) An actuarial review has been conducted as regards the scheme as of the date specified in the certificate. (2) In the course of the review he has had regard to the financial condition of the scheme. (3) The review included a valuation of the scheme's liabilities (including contingent and prospective liabilities). (4) As at the date of the review the scheme's assets were sufficient to meet the scheme's aggregate vested liability. (5) Following the review he has made recommendations as regards funding of the scheme. (6) Following the review he has received a copy of a written undertaking by the relevant employer of the scheme to

the administrator of the scheme to contribute to the scheme's funds in accordance with those recommendations. (7) Provided the scheme is funded in accordance with those recommendations, he would expect that-

(a) the scheme's assets would continue to be sufficient to meet the scheme's aggregate vested liability throughout the period of 3 years from the date of the review; and

(b) on the expiration of a period, where necessary, specified in the certificate, the scheme's assets would be sufficient to meet the scheme's aggregate past service liability.

PART 2

QUALIFIED CERTIFICATE

A qualified certificate issued by the actuary shall certify- (1) That an actuarial review has been conducted as regards the scheme as of the date specified in the certificate. (2) That in the course of the review he has had regard to the financial condition of the scheme. (3) That the review included a valuation of the scheme's liabilities (including contingent and prospective liabilities). (4) That-

(a) as at the date of the review the scheme's assets were not sufficient to meet the scheme's aggregate vested liability and stating the amount of the shortfall as at such date ("the current shortfall" (當日不足之數)); or

(b) although as at the date of the review the scheme's assets were sufficient to meet the scheme's aggregate vested liability, he would not expect that the scheme's assets would continue to be sufficient to meet the scheme's aggregate vested liability throughout the period of 3 years from the date of the review.

(5) That following the review he has made recommendations as regards funding of the scheme. (6) That following the review he has received a copy of a written undertaking by the relevant employer of the

scheme to the administrator of the scheme to contribute to the scheme's funds in accordance with those recommendations.

(7) Provided the scheme is funded in accordance with those recommendations- (a) what he would expect to be the amount of the shortfall between the scheme's assets and the scheme's

aggregate vested liability as at the expiry of 12 months from the date of the review ("the expected shortfall" (預計不足之數));

(b) that he would expect that within a period being the later of the 5th anniversary of the commencement of section 1 and 3 years from the date of the review, the scheme's assets would be sufficient to meet its aggregate vested liability; and

(c) that he would also expect that on the expiration of the period specified in subparagraph (b), or on the expiration of a period, where necessary, specified in the certificate, the scheme's assets would be sufficient to meet the scheme's aggregate past service liability.

(8) (Where the immediately preceding certificate supplied in accordance with this Ordinance was a qualified certificate)-


(a) that the amount of contributions recommended in the certificate to be made in the remainder of the period specified in that preceding certificate is not less than the amount of contributions recommended in that preceding certificate to be made in the same period; or

(b) that the amount of contributions recommended in the certificate to be made in the remainder of the period specified in that preceding certificate is less than the amount of contributions recommended in that preceding certificate to be made in the same period, but he would expect that even with such lesser amount of contributions the scheme's assets would be sufficient to meet the scheme's aggregate vested liability as at the expiry of 12 months from the date of the review.

(9) (Where the immediately preceding certificate supplied in accordance with this Ordinance was a qualified certificate and where owing to any reason, other than the failure of the relevant employer of the scheme to contribute to the scheme's funds in accordance with the actuarial recommendations in that preceding certificate, the current shortfall as stated in the certificate exceeds the expected shortfall as stated in that preceding certificate)- (a) what in the actuary's opinion were the major reasons giving rise to such excess; (b) that the amount of contributions recommended to be made in the certificate includes additional

contributions which the actuary considers are required to cover such excess. (Enacted 1992)

Schedule: 3 INFORMATION TO BE CONTAINED IN A

STATEMENT UNDER SECTION 35 30/06/1997

[section 35] 1. Descriptions of the pensions, allowances and other benefits payable under the relevant registered scheme and in case more than one class or description of pension, allowance or other benefit is payable, particulars of those classes or descriptions of pension, allowance or other benefit. 2. Particulars of the scheme's provisions regarding eligibility for membership of the scheme. 3. Particulars of the circumstances (if any) in which under such scheme a member will lose or may be liable to lose his entitlement to benefit under the scheme wholly or partly. 4. Particulars of the circumstances (if any) in which a right which has accrued under such scheme may be affected to a member's detriment. 5. A copy of the scheme instrument as amended from time to time together with (in case the scheme is governed by a trust) a copy of the trust instrument or (in case the scheme is the subject of or regulated by an insurance arrangement) a copy of the policy. 6. A copy of the statement of accounts and report (if any) thereon most recently prepared and audited pursuant to section 20. 7. A copy of the most recent actuarial certificate (if any) relating to such scheme and sent to the Registrar in compliance with a requirement of or made under this Ordinance.

(Enacted 1992)

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