Division 2-Regulation of offers of investments, etc.
(1) Subject to subsections (2), (3) and (5) to (9), a person commits an offence if he issues, or has in his possession for the purposes of issue, whether in Hong Kong or elsewhere, an advertisement, invitation or document which to his knowledge is or contains an invitation to the public-
(a) to enter into or offer to enter into-
(i) an agreement to acquire, dispose of, subscribe for or underwrite securities; or
(ii) a regulated investment agreement; or
(b) to acquire an interest in or participate in, or offer to acquire an interest in or participate in, a collective investment scheme,
unless the issue is authorized by the Commission under section 105(1).
(2) Subsection (1) does not apply to the issue, or the possession for the purposes of issue, of any advertisement, invitation or document-
(a) made by or on behalf of an intermediary licensed or registered for Type 1, Type 4 or Type 6 regulated activity (whether acting as principal or agent) in respect of securities;
(b) made by or on behalf of an intermediary licensed or registered for Type 2 or Type 5 regulated activity (whether acting as principal or agent) in respect of futures contracts;
(c) made by or on behalf of-
(i) an authorized financial institution (whether acting as principal or agent); or
(ii) an intermediary licensed for Type 3 regulated activity (whether acting as principal or agent),
in respect of leveraged foreign exchange contracts;
(d) made by or on behalf of a recognized exchange company or recognized clearing house in respect of the provision of services by such recognized exchange company or recognized clearing house (as the case may be);
(e) made by or on behalf of a corporation to holders of securities or creditors of, or employees employed by or agents acting in a professional capacity on behalf of, that corporation, or a related corporation of that corporation, in respect of securities of that corporation or that related corporation;
(f) made by or on behalf of the Government in respect of securities issued by it;
(g) made by or on behalf of a credit union in respect of shares in the credit union;
(ga) to the extent that the advertisement, invitation or document relates to an offer falling within paragraph (b)(ii) of the definition of "prospectus" in section 2(1) of the Companies Ordinance (Cap 32); (Added 30 of 2004 s. 3)
(h) made by or on behalf of a person acting as a trustee of a trust, not being a collective investment scheme, to beneficiaries under the trust; or
(i) made by or on behalf of a person who is engaged in the business of selling and purchasing property other than securities (whether acting as principal or agent) in the ordinary course of that business.
(3) Subsection (1) does not apply to the issue, or the possession for the purposes of issue-
(a) of-
(i) a prospectus which complies with or is exempt from compliance with Part II of the Companies Ordinance (Cap 32);
(ii) in the case of a corporation incorporated outside Hong Kong, a prospectus which complies with or is exempt from compliance with Part XII of that Ordinance;
(iii) a publication falling within section 38B(2) of the Companies Ordinance (Cap 32); (Replaced 30 of 2004 s. 3)
(b) of a document relating to the securities of a body corporate incorporated in Hong Kong that is not a registered company, being a document which-
(i) would, if the body corporate were a registered company, be a prospectus to which section 38 of the Companies Ordinance (Cap 32) applies, or would apply if not excluded by section 38(5)(b) or 38A of that Ordinance; and
(ii) contains all the matters which, by virtue of Part XII of that Ordinance, it would be required to contain if the body corporate were a corporation incorporated outside Hong Kong and the document were a prospectus issued by that corporation;
(c) of a form of application for the shares or debentures of a corporation, where it is issued, or the possession is for the purposes of issue, together with-
(i) a prospectus with respect to those shares or debentures which complies with or is exempt from compliance with Part II of the Companies Ordinance (Cap 32) or, in the case of a corporation incorporated outside Hong Kong, complies with or is exempt from compliance with Part XII of that Ordinance; or
(ii) in the case of a body corporate incorporated in Hong Kong that is not a registered company, a document containing all the matters which, by virtue of Part XII of that Ordinance, it would be required to contain if the body corporate were a corporation incorporated outside Hong Kong and the document were a prospectus issued by that corporation with respect to those shares or debentures;
(d) of a form of application for the securities of a corporation, where it is issued, or the possession is for the purposes of issue, in connection with an invitation made in good faith to a person to enter into an underwriting agreement with respect to those securities;
(e) of any advertisement, invitation or document made in respect of the issue, whether in Hong Kong or elsewhere, of a certificate of deposit by an authorized financial institution;
(f) of any advertisement, invitation or document made in respect of the issue, whether in Hong Kong or elsewhere, of a certificate of deposit-
(i) the amount or denomination of which is not less than the sum specified in Part 1 of Schedule 4; and
(ii) by-
(A) a multilateral agency; or
(B) a bank incorporated outside Hong Kong and having no place of business in Hong Kong, where the Monetary Authority has declared in writing that he is satisfied that the bank is likely to be adequately supervised by the relevant authority of any place in which it is incorporated or has its principal place of business;
(g) of any advertisement, invitation or document made in respect of the issue, whether in Hong Kong or elsewhere, of any instrument specified in Part 2 of Schedule 4 (other than a certificate of deposit), where the amount or denomination of the instrument is not less than the sum specified in Part 1 of Schedule 4 and the instrument-
(i) is issued by an authorized financial institution or a multilateral agency, or by an exempted body which, if it is a corporation or a wholly owned subsidiary specified in item 11 of Part 3 of Schedule 4, complies with the relevant condition;
(ii) is issued by a corporation which complies with the relevant condition, and is guaranteed by an authorized financial institution or a multilateral agency, or by an exempted body (other than a corporation specified in item 11 of Part 3 of Schedule 4 which does not comply with the relevant condition, or a wholly owned subsidiary of the corporation); or
(iii) is issued by a wholly owned subsidiary specified in item 11 of Part 3 of Schedule 4 and is guaranteed by the corporation of which it is such a subsidiary and which complies with the relevant condition;
(h) of any advertisement, invitation or document made in respect of the issue of securities the listing of which on a recognized stock market has been approved by the recognized exchange company by which the recognized stock market is operated, where the advertisement, invitation or document complies with the rules made under section 23 or 36 governing the listing of securities, except to the extent that compliance is, in accordance with those rules, waived, modified or not required;
(i) of any advertisement, invitation or document made in respect of securities regulated in a jurisdiction outside Hong Kong which have been admitted to trading on a recognized stock market under or pursuant to rules made under section 23 or 36;
(j) of any advertisement, invitation or document made in respect of securities, or interests in any collective investment scheme or regulated investment agreement, which are or are intended to be disposed of only to persons outside Hong Kong;
(k) of any advertisement, invitation or document made in respect of securities, or interests in any collective investment scheme or regulated investment agreement, which are or are intended to be disposed of only to professional investors.
(4) A person who commits an offence under subsection (1) is liable-
(a) on conviction on indictment to a fine of $500000 and to imprisonment for 3 years and, in the case of a continuing offence, to a further fine of $20000 for every day during which the offence continues; or
(b) on summary conviction to a fine at level 6 and to imprisonment for 6 months and, in the case of a continuing offence, to a further fine of $10000 for every day during which the offence continues.
(5) A person shall not be regarded as committing an offence under subsection (1) by reason only that he issues, or has in his possession for the purposes of issue-
(a) as or on behalf of an intermediary licensed or registered for Type 1, Type 4 or Type 6 regulated activity (whether acting as principal or agent), any advertisement, invitation or document made in respect of securities;
(b) as or on behalf of an intermediary licensed or registered for Type 2 or Type 5 regulated activity (whether acting as principal or agent), any advertisement, invitation or document made in respect of futures contracts;
(c) as or on behalf of-
(i) an authorized financial institution (whether acting as principal or agent); or
(ii) an intermediary licensed for Type 3 regulated activity (whether acting as principal or agent),
any advertisement, invitation or document made in respect of leveraged foreign exchange contracts.
(6) A person shall not be regarded as committing an offence under subsection (1) by reason only that he issues any advertisement, invitation or document, or has any advertisement, invitation or document in his possession for the purposes of issue-
(a) in the case of any advertisement, invitation or document made in respect of securities, to an intermediary licensed or registered for Type 1, Type 4 or Type 6 regulated activity, or a representative of such intermediary that carries on such regulated activity for such intermediary;
(b) in the case of any advertisement, invitation or document made in respect of futures contracts, to an intermediary licensed or registered for Type 2 or Type 5 regulated activity, or a representative of such intermediary that carries on such regulated activity for such intermediary; or
(c) in the case of any advertisement, invitation or document made in respect of leveraged foreign exchange contracts, to-
(i) an authorized financial institution; or
(ii) an intermediary licensed for Type 3 regulated activity, or a representative of such intermediary that carries on such regulated activity for such intermediary.
(7) A person shall not be regarded as committing an offence under subsection (1) by reason only that he issues, or has in his possession for the purposes of issue, any advertisement, invitation or document if-
(a) the advertisement, invitation or document (as the case may be) was so issued, or possessed for the purposes of issue, in the ordinary course of a business (whether or not carried on by him), the principal purpose of which was receiving and issuing materials provided by others;
(b) the contents of the advertisement, invitation or document (as the case may be) were not, wholly or partly, devised-
(i) where the business was carried on by him, by himself or any officer, employee or agent of his; or
(ii) where the business was not carried on by him, by himself; and
(c) for the purposes of the issue-
(i) where the business was carried on by him, he or any officer, employee or agent of his; or
(ii) where the business was not carried on by him, he,
did not select, add to, modify or otherwise exercise control over the contents of the advertisement, invitation or document (as the case may be).
(8) A person shall not be regarded as committing an offence under subsection (1) by reason only that he issues by way of live broadcast, or has in his possession for the purposes of issue by way of live broadcast, any advertisement, invitation or document if-
(a) the advertisement, invitation or document (as the case may be) was so issued, or possessed for the purposes of issue, in the ordinary course of the business of a broadcaster (whether or not he was such broadcaster);
(b) the contents of the advertisement, invitation or document (as the case may be) were not, wholly or partly, devised-
(i) where he was the broadcaster, by himself or any officer, employee or agent of his; or
(ii) where he was not the broadcaster, by himself;
(c) for the purposes of the issue-
(i) where he was the broadcaster, he or any officer, employee or agent of his; or
(ii) where he was not the broadcaster, he,
did not select, add to, modify or otherwise exercise control over the contents of the advertisement, invitation or document (as the case may be); and
(d) in relation to the broadcast-
(i) where he was the broadcaster, he; or
(ii) where he was not the broadcaster, he believed and had reasonable grounds to believe that the broadcaster,
acted in accordance with the terms and conditions of the licence (if any) by which he or the broadcaster (as the case may be) became entitled to broadcast as a broadcaster and with any code of practice or guidelines (however described) issued under or pursuant to the Telecommunications Ordinance (Cap 106) or the Broadcasting Ordinance (Cap 562) and applicable to him or the broadcaster (as the case may be) as a broadcaster.
(9) It is a defence to a charge for an offence under subsection (1) for the person charged to prove that he took all reasonable steps and exercised all due diligence to avoid the commission of the offence with which he is charged.
(10) For the purposes of any proceedings under this section-
(a) an advertisement, invitation or document which consists of or contains information likely to lead, directly or indirectly, to the doing of any act referred to in subsection (1)(a) or (b) shall be regarded as an advertisement, invitation or document (as the case may be) which is or contains an invitation to do such act;
(b) an advertisement, invitation or document which is or contains an invitation directed at, or the contents of which are likely to be accessed or read (whether concurrently or otherwise) by, the public shall be regarded as an advertisement, invitation or document (as the case may be) which is or contains an invitation to the public.
(11) Nothing in subsection (2)(a), (b), (c) or (i) or (5)(a), (b) or (c) applies to anything done by any person in respect of any interest in a collective investment scheme that is not authorized by the Commission under section 104.
(12) In this section-
"guaranteed" (作出担保) means guaranteed fully, unconditionally, irrevocably and in writing;
"registered company" (注册公司) means a company registered under the Companies Ordinance (Cap 32);
"relevant condition" (有关条件), in relation to a corporation (including a wholly owned subsidiary of any other corporation), means a condition that the amount by which the aggregate of the corporation's assets exceeds the aggregate of its liabilities, as calculated in accordance with generally accepted accounting principles, is not less than the sum specified in Part 4 of Schedule 4.
Section: 104 Heading: Commission may authorize collective investment schemes Version Date: 01/04/2003
(1) On an application to the Commission, the Commission may, where it considers appropriate, authorize any collective investment scheme, subject to the condition specified in subsection (2) and to any other conditions it considers appropriate.
(2) It shall be a condition of authorization of a collective investment scheme under subsection (1) that at any time when the scheme is authorized-
(a) there is an individual approved by the Commission under subsection (3) as an approved person for the purpose of being served by the Commission with notices and decisions for the scheme; and
(b) the Commission is informed of particulars-
(i) subject to subparagraph (ii), of the current contact details of the approved person referred to in paragraph (a), including, in so far as applicable, the address, telephone and facsimile numbers, and electronic mail address of the approved person;
(ii) where there is any change in the contact details referred to in subparagraph (i), of the change, within 14 days after the change takes place.
(3) For the purposes of subsection (2)(a), on an application by any person to the Commission, the Commission may, where it considers appropriate, approve any individual nominated in the application in respect of a collective investment scheme as an approved person for the purpose of being served by the Commission with notices and decisions for the scheme, and may, by notice in writing served on the person, withdraw the approval.
(4) The Commission may at any time, by notice in writing served on the approved person for a collective investment scheme, amend or revoke any of the conditions (other than the condition specified in subsection (2)) imposed, or impose new conditions, in respect of the authorization granted under subsection (1) in respect of the scheme.
(5) Without limiting any other ground on which the Commission may refuse to authorize any collective investment scheme under subsection (1), the Commission may refuse to do so where it is not satisfied that the authorization is in the interest of the investing public.
(6) An application made pursuant to subsection (1) or (3) shall be accompanied by such information and documents as the Commission requires.
(7) Where the Commission refuses to authorize a collective investment scheme, or to approve an individual as an approved person, pursuant to subsection (1) or (3), it shall by notice in writing notify the person making the application in question of the decision and the reasons for which it is made.
(8) The Commission may publish in such manner as it considers appropriate particulars of any collective investment scheme authorized under subsection (1).
(9) Particulars published under subsection (8) are not subsidiary legislation.
Section: 105 Heading: Commission may authorize issue of advertisements, invitations or documents Version Date: 01/04/2003
(1) On an application to the Commission, the Commission may, where it considers appropriate, authorize the issue of any advertisement, invitation or document which is or contains an invitation to do any act referred to in section 103(1)(a) or (b), subject to the condition specified in subsection (2) and to any other conditions it considers appropriate, including conditions on the matter to which the advertisement, invitation or document relates.
(2) It shall be a condition of authorization of the issue of any advertisement, invitation or document under subsection (1) that at any time when the issue is authorized-
(a) there is an individual approved by the Commission under subsection (3) as an approved person for the purpose of being served by the Commission with notices and decisions for the issue; and
(b) the Commission is informed of particulars-
(i) subject to subparagraph (ii), of the current contact details of the approved person referred to in paragraph (a), including, in so far as applicable, the address, telephone and facsimile numbers, and electronic mail address of the approved person;
(ii) where there is any change in the contact details referred to in subparagraph (i), of the change, within 14 days after the change takes place.
(3) For the purposes of subsection (2)(a), on an application by any person to the Commission, the Commission may, where it considers appropriate, approve any individual nominated in the application in respect of the issue of any advertisement, invitation or document as an approved person for the purpose of being served by the Commission with notices and decisions for the issue, and may, by notice in writing served on the person, withdraw the approval.
(4) The Commission may at any time, by notice in writing served on the approved person for the issue of any advertisement, invitation or document, amend or revoke any of the conditions (other than the condition specified in subsection (2)) imposed, or impose new conditions, in respect of the authorization granted under subsection (1) in respect of the issue.
(5) Without limiting any other ground on which the Commission may refuse to authorize the issue of any advertisement, invitation or document under subsection (1), the Commission may refuse to do so where it is not satisfied that the matter to which the advertisement, invitation or document relates is in the interest of the investing public.
(6) An application made pursuant to subsection (1) or (3) shall be accompanied by such information and documents as the Commission requires.
(7) Where the Commission refuses to authorize the issue of any advertisement, invitation or document, or to approve an individual as an approved person, pursuant to subsection (1) or (3), it shall by notice in writing notify the person making the application in question of the decision and the reasons for which it is made.
Section: 106 Heading: Withdrawal of authorization under section 104 or 105, etc. Version Date: 01/04/2003
(1) Subject to subsection (5), where, in relation to an authorization of a collective investment scheme under section 104, or an authorization of the issue of an advertisement, invitation or document under section 105, the Commission decides that-
(a) any information provided to the Commission pursuant to section 104(6) or 105(6) (as the case may be) was at the time when it was provided false or misleading in a material particular;
(b) any of the conditions imposed in respect of the authorization under section 104 or 105 (as the case may be) are not being complied with;
(c) any information provided to the Commission in purported compliance with any of the conditions imposed in respect of the authorization under section 104 or 105 (as the case may be) was at the time when it was provided false or misleading in a material particular; or
(d) it is desirable to withdraw the authorization in order to protect the interest of the investing public,
the Commission may withdraw the authorization.
(2) Subject to subsection (3), the Commission shall, upon a request in writing made by an approved person for a collective investment scheme or the issue of an advertisement, invitation or document to withdraw the authorization of the scheme or of the issue (as the case may be), withdraw the authorization.
(3) Subject to subsection (5), the Commission may refuse to withdraw an authorization of a collective investment scheme or of the issue of an advertisement, invitation or document under subsection (2) where it considers that-
(a) in the case of an authorization of a collective investment scheme, it is in the public interest that any matter concerning the scheme should be investigated before the authorization is withdrawn under subsection (2); or
(b) the withdrawal of the authorization would not be in the interest of the investing public.
(4) Subject to subsection (5), where the Commission withdraws an authorization under subsection (1) or (2), it may impose such conditions on the withdrawal of the authorization as it considers appropriate.
(5) The Commission shall not-
(a) withdraw an authorization of a collective investment scheme or of the issue of an advertisement, invitation or document under subsection (1);
(b) refuse to withdraw an authorization of a collective investment scheme or of the issue of an advertisement, invitation or document under subsection (3); or
(c) impose any conditions on the withdrawal of an authorization of a collective investment scheme or of the issue of an advertisement, invitation or document under subsection (4),
without first giving the approved person for the scheme or the issue (as the case may be) a reasonable opportunity of being heard.
(6) Where the Commission-
(a) withdraws an authorization of a collective investment scheme or of the issue of an advertisement, invitation or document under subsection (1);
(b) withdraws an authorization of a collective investment scheme or of the issue of an advertisement, invitation or document under subsection (2);
(c) refuses to withdraw an authorization of a collective investment scheme or of the issue of an advertisement, invitation or document under subsection (3); or
(d) imposes any conditions on the withdrawal of an authorization of a collective investment scheme or of the issue of an advertisement, invitation or document under subsection (4),
it shall by notice in writing notify the approved person for the scheme or the issue (as the case may be) of the decision and, in the case of paragraph (a), (c) or (d), the reasons for which it is made.
(7) Where the Commission withdraws an authorization under subsection (1) or (2), it may publish notice of the withdrawal and the reasons therefor in such manner as it considers appropriate.
(8) A notice or any other matter published under subsection (7) is not subsidiary legislation.
Section: 107 Heading: Offence to fraudulently or recklessly induce others to invest money Version Date: 01/04/2003
(1) A person commits an offence if he makes any fraudulent misrepresentation or reckless misrepresentation for the purpose of inducing another person-
(a) to enter into or offer to enter into-
(i) an agreement to acquire, dispose of, subscribe for or underwrite securities; or
(ii) a regulated investment agreement; or
(b) to acquire an interest in or participate in, or offer to acquire an interest in or participate in, a collective investment scheme.
(2) A person who commits an offence under subsection (1) is liable-
(a) on conviction on indictment to a fine of $1000000 and to imprisonment for 7 years; or
(b) on summary conviction to a fine at level 6 and to imprisonment for 6 months.
(3) For the purposes of this section-
(a) "fraudulent misrepresentation" (欺诈的失实陈述) means-
(i) any statement which, at the time when it is made, is to the knowledge of its maker false, misleading or deceptive;
(ii) any promise which, at the time when it is made, its maker has no intention of fulfilling, or is to the knowledge of its maker not capable of being fulfilled;
(iii) any forecast which, at the time when it is made, is to the knowledge of its maker not justified on the facts then known to him; or
(iv) any statement or forecast from which, at the time when it is made, its maker intentionally omits a material fact, with the result that-
(A) in the case of the statement, the statement is rendered false, misleading or deceptive; or
(B) in the case of the forecast, the forecast is rendered misleading or deceptive;
(b) "reckless misrepresentation" (罔顾实情的失实陈述) means-
(i) any statement which, at the time when it is made, is false, misleading or deceptive and is made recklessly;
(ii) any promise which, at the time when it is made, is not capable of being fulfilled and is made recklessly;
(iii) any forecast which, at the time when it is made, is not justified on the facts then known to its maker and is made recklessly; or
(iv) any statement or forecast from which, at the time when it is made, its maker recklessly omits a material fact, with the result that-
(A) in the case of the statement, the statement is rendered false, misleading or deceptive; or
(B) in the case of the forecast, the forecast is rendered misleading or deceptive.
Section: 108 Heading: Civil liability for inducing others to invest money in certain cases Version Date: 01/04/2003
(1) Where a person makes any fraudulent misrepresentation, reckless misrepresentation or negligent misrepresentation by which another person is induced-
(a) to enter into or offer to enter into-
(i) an agreement to acquire, dispose of, subscribe for or underwrite securities; or
(ii) a regulated investment agreement; or
(b) to acquire an interest in or participate in, or offer to acquire an interest in or participate in, a collective investment scheme,
the first-mentioned person shall, whether or not he also incurs any other liability (whether under this Part or otherwise), be liable to pay compensation by way of damages to the other person for any pecuniary loss that the other person has sustained as a result of the reliance by the other person on the misrepresentation.
(2) For the purposes of this section, where a company or other body corporate has made any fraudulent misrepresentation, reckless misrepresentation or negligent misrepresentation by which another person is induced to do any act referred to in subsection (1)(a) or (b), any person who was a director of the company or body corporate at the time when the misrepresentation was made shall, unless it is proved that he did not authorize the making of the misrepresentation, be presumed also to have made the misrepresentation.
(3) For the avoidance of doubt, where a court has jurisdiction to determine an action brought under subsection (1), it may, where it is, apart from this section, within its jurisdiction to entertain an application for an injunction, grant an injunction in addition to, or in substitution for, damages, on such terms and conditions as it considers appropriate.
(4) This section does not confer a right of action in any case to which section 40 of the Companies Ordinance (Cap 32) (whether with or without reference to section 342E of that Ordinance) applies.
(5) A person may bring an action under subsection (1) even though the person against whom the action is brought has not been charged with or convicted of an offence by reason of a contravention of this Part.
(6) Nothing in this section affects, limits or diminishes any rights conferred on a person, or any liabilities a person may incur, under the common law or any other enactment.
(7) For the purposes of this section-
(a) "fraudulent misrepresentation" (欺诈的失实陈述) means-
(i) any statement which, at the time when it is made, is to the knowledge of its maker false, misleading or deceptive;
(ii) any promise which, at the time when it is made, its maker has no intention of fulfilling, or is to the knowledge of its maker not capable of being fulfilled;
(iii) any forecast which, at the time when it is made, is to the knowledge of its maker not justified on the facts then known to him; or
(iv) any statement or forecast from which, at the time when it is made, its maker intentionally omits a material fact, with the result that-
(A) in the case of the statement, the statement is rendered false, misleading or deceptive; or
(B) in the case of the forecast, the forecast is rendered misleading or deceptive;
(b) "reckless misrepresentation" (罔顾实情的失实陈述) means-
(i) any statement which, at the time when it is made, is false, misleading or deceptive and is made recklessly;
(ii) any promise which, at the time when it is made, is not capable of being fulfilled and is made recklessly;
(iii) any forecast which, at the time when it is made, is not justified on the facts then known to its maker and is made recklessly; or
(iv) any statement or forecast from which, at the time when it is made, its maker recklessly omits a material fact, with the result that-
(A) in the case of the statement, the statement is rendered false, misleading or deceptive; or
(B) in the case of the forecast, the forecast is rendered misleading or deceptive;
(c) "negligent misrepresentation" (疏忽的失实陈述) means-
(i) any statement which, at the time when it is made, is false, misleading or deceptive and is made without reasonable care having been taken to ensure its accuracy;
(ii) any promise which, at the time when it is made, is not capable of being fulfilled and is made without reasonable care having been taken to ensure that it can be fulfilled;
(iii) any forecast which, at the time when it is made, is not justified on the facts then known to its maker and is made without reasonable care having been taken to ensure the accuracy of those facts; or
(iv) any statement or forecast from which, at the time when it is made, its maker negligently omits a material fact, with the result that-
(A) in the case of the statement, the statement is rendered false, misleading or deceptive; or
(B) in the case of the forecast, the forecast is rendered misleading or deceptive.
Section: 109 Heading: Offence to issue advertisements relating to carrying on of regulated activities, etc. Version Date: 01/04/2003
(1) Subject to subsections (3) to (6), a person commits an offence if he issues, or has in his possession for the purposes of issue-
(a) an advertisement in which to his knowledge-
(i) a person holds himself out as being prepared to carry on Type 4, Type 5, Type 6 or Type 9 regulated activity; and
(ii) the person is not licensed or registered for such regulated activity as required under this Ordinance; or
(b) any document which to his knowledge contains such advertisement.
(2) A person who commits an offence under subsection (1) is liable on conviction to a fine at level 5 and to imprisonment for 6 months.
(3) A person shall not be regarded as committing an offence under subsection (1) by reason only that he issues any advertisement or document, or has any advertisement or document in his possession for the purposes of issue-
(a) in the case of an advertisement in which a person holds himself out as being prepared to carry on Type 4 regulated activity, to an intermediary licensed or registered for Type 4 regulated activity, or a representative of such intermediary that carries on such regulated activity for such intermediary;
(b) in the case of an advertisement in which a person holds himself out as being prepared to carry on Type 5 regulated activity, to an intermediary licensed or registered for Type 5 regulated activity, or a representative of such intermediary that carries on such regulated activity for such intermediary;
(c) in the case of an advertisement in which a person holds himself out as being prepared to carry on Type 6 regulated activity, to an intermediary licensed or registered for Type 6 regulated activity, or a representative of such intermediary that carries on such regulated activity for such intermediary; or
(d) in the case of an advertisement in which a person holds himself out as being prepared to carry on Type 9 regulated activity, to an intermediary licensed or registered for Type 9 regulated activity, or a representative of such intermediary that carries on such regulated activity for such intermediary.
(4) A person shall not be regarded as committing an offence under subsection (1) by reason only that he issues, or has in his possession for the purposes of issue, any advertisement or document if-
(a) the advertisement or document (as the case may be) was so issued, or possessed for the purposes of issue, in the ordinary course of a business (whether or not carried on by him), the principal purpose of which was receiving and issuing materials provided by others;
(b) the contents of the advertisement or document (as the case may be) were not, wholly or partly, devised-
(i) where the business was carried on by him, by himself or any officer, employee or agent of his; or
(ii) where the business was not carried on by him, by himself; and
(c) for the purposes of the issue-
(i) where the business was carried on by him, he or any officer, employee or agent of his; or
(ii) where the business was not carried on by him, he,
did not select, add to, modify or otherwise exercise control over the contents of the advertisement or document (as the case may be).
(5) A person shall not be regarded as committing an offence under subsection (1) by reason only that he issues by way of live broadcast, or has in his possession for the purposes of issue by way of live broadcast, any advertisement or document if-
(a) the advertisement or document (as the case may be) was so issued, or possessed for the purposes of issue, in the ordinary course of the business of a broadcaster (whether or not he was such broadcaster);
(b) the contents of the advertisement or document (as the case may be) were not, wholly or partly, devised-
(i) where he was the broadcaster, by himself or any officer, employee or agent of his; or
(ii) where he was not the broadcaster, by himself;
(c) for the purposes of the issue-
(i) where he was the broadcaster, he or any officer, employee or agent of his; or
(ii) where he was not the broadcaster, he,
did not select, add to, modify or otherwise exercise control over the contents of the advertisement or document (as the case may be); and
(d) in relation to the broadcast-
(i) where he was the broadcaster, he; or
(ii) where he was not the broadcaster, he believed and had reasonable grounds to believe that the broadcaster,
acted in accordance with the terms and conditions of the licence (if any) by which he or the broadcaster (as the case may be) became entitled to broadcast as a broadcaster and with any code of practice or guidelines (however described) issued under or pursuant to the Telecommunications Ordinance (Cap 106) or the Broadcasting Ordinance (Cap 562) and applicable to him or the broadcaster (as the case may be) as a broadcaster.
(6) It is a defence to a charge for an offence under subsection (1) for the person charged to prove that he took all reasonable steps and exercised all due diligence to avoid the commission of the offence with which he is charged.
Section: 110 Heading: Submission of information to Commission Version Date: 01/04/2003
Division 3-Miscellaneous
(1) A person that is-
(a) an authorized financial institution;
(b) an exempted body or, in the case of a wholly owned subsidiary specified in item 11 of Part 3 of Schedule 4 but incorporated outside Hong Kong, an authorized representative of that subsidiary;
(c) a multilateral agency or an authorized representative of that agency; or
(d) a bank incorporated outside Hong Kong or an authorized representative of that bank,
commits an offence if he fails, within 10 business days, or such longer period as is prescribed by rules made under section 397 for the purposes of this subsection, after the issue of any advertisement, invitation or document referred to in section 103(3)(e), (f) or (g) by the authorized financial institution, the exempted body or the wholly owned subsidiary, the multilateral agency or the bank (as the case may be), to submit to the Commission such information in respect of the advertisement, invitation or document as is prescribed by the rules.
(2) A person who commits an offence under subsection (1) is liable on conviction to a fine at level 5 and, in the case of a continuing offence, to a further fine of $5000 for every day during which the offence continues.
(3) In subsection (1), "authorized representative" (获授权代表), in relation to the issue of any advertisement, invitation or document, means-
(a) in the case of a wholly owned subsidiary specified in item 11 of Part 3 of Schedule 4 but incorporated outside Hong Kong, the listed corporation of which it is the subsidiary; or
(b) in the case of a multilateral agency or a bank incorporated outside Hong Kong, a person resident in Hong Kong who is authorized by the agency or the bank (as the case may be) to act on behalf of the agency or the bank (as the case may be) in respect of that issue.
Section: 111 Heading: Service of notices, etc. on approved persons Version Date: 01/04/2003
(1) Notwithstanding section 400, any written notice, decision or direction or other document (however described) to be, or required to be, issued or served (however described) to or on an approved person by the Commission for the purposes of this Ordinance shall for all purposes be regarded as duly issued or served only if-
(a) it is delivered to him by hand; or
(b) it is-
(i) left at, or sent by post to, the last address;
(ii) sent by facsimile transmission to the last facsimile number; or
(iii) sent by electronic mail transmission to the last electronic mail address,
shown by the particulars of which the Commission is informed in respect of the approved person for the purposes of section 104(2)(b) or 105(2)(b) (as the case may be).
(2) Where a notice, decision or direction or other document (however described) is regarded as duly issued or served to or on an approved person under subsection (1)(b), it shall for all purposes be regarded as issued or served to or on the approved person, and as coming to his notice, at the time when-
(a) where it is left at an address, it is so left at that address;
(b) where it is sent by post to an address, it would in the ordinary course of post be delivered to that address;
(c) where it is sent by facsimile transmission to a facsimile number, it would in the ordinary course of transmission by facsimile be received at that number; or
(d) where it is sent by electronic mail transmission to an electronic mail address, it would in the ordinary course of transmission by electronic mail be received at that address.
Section: 112 Heading: Amendment of Schedule 4 Version Date: 01/04/2003
(1) The Financial Secretary may, by notice published in the Gazette, amend Part 1 of Schedule 4.
(2) The Commission may, after consultation with the Financial Secretary, by notice published in the Gazette, amend Parts 2, 3 and 4 of Schedule 4.
