关键词：Securities

Division 5-Audit

Section: 153 Heading: Auditor to be appointed by licensed corporations and associated entities of intermediaries Version Date: 01/04/2003

(1) A licensed corporation shall appoint an auditor to perform the functions required of an auditor of the corporation under or pursuant to the provisions of this or any other Ordinance.
(2) An associated entity of an intermediary shall appoint an auditor to perform the functions required of an auditor of the associated entity under or pursuant to the provisions of this or any other Ordinance.
(3) A licensed corporation, and an associated entity of an intermediary, shall, within 7 business days after its appointment of an auditor under subsection (1) or (2) (as the case may be), notify the Commission by notice in writing of the name and address of the auditor.
(4) A person-
(a) is not eligible for appointment as an auditor under subsection (1) or (2)-
(i) if he is an officer or employee of the licensed corporation or the associated entity the accounts of which are to be audited, or is in the employment of such an officer or employee; or
(ii) if he belongs to a class of persons prescribed by rules made under section 397 for the purposes of this subsection;
(b) is, subject to paragraph (a), eligible for appointment as an auditor under subsection (1) or (2), notwithstanding that he is, apart from that appointment, already an auditor appointed by the licensed corporation or the associated entity the accounts of which are to be audited, whether for the purposes of the Companies Ordinance (Cap 32) or otherwise.
(5) A licensed corporation, or an associated entity of an intermediary, which fails to appoint an auditor in accordance with subsection (1) or (2) within one month after-
(a) it becomes licensed or becomes such an associated entity (as the case may be); or
(b) the auditor first appointed under subsection (1) or (2) after it becomes licensed or becomes such an associated entity, or any auditor further appointed under subsection (1) or (2), ceases to be an auditor of the licensed corporation or of the associated entity (as the case may be),
commits an offence and is liable-
(i) on conviction on indictment to a fine of $200000 and to imprisonment for 1 year; or
(ii) on summary conviction to a fine at level 5 and to imprisonment for 6 months.
(6) A licensed corporation, or an associated entity of an intermediary, which contravenes subsection (3) commits an offence and is liable on conviction to a fine at level 5.
(7) Nothing in this section prejudices the operation of any other requirements relating to the appointment of an auditor, whether under the Companies Ordinance (Cap 32) or otherwise.
(8) In this section, a reference to an associated entity of an intermediary shall be construed as a reference to such associated entity other than one that is an authorized financial institution.

Section: 154 Heading: Notification of proposed change of auditors by licensed corporations and associated entities of intermediaries Version Date: 01/04/2003


(1) A licensed corporation, and an associated entity of an intermediary, shall within one business day after-
(a) it gives notice to its members of a motion, to be moved at its general meeting-
(i) to remove an auditor appointed by it under section 153 before the expiration of his term of office; or
(ii) to replace with another auditor, or not to reappoint, an auditor appointed by it under section 153 at the expiration of his term of office; or
(b) an auditor appointed by it under section 153 ceases to be its auditor before the expiration of his term of office, otherwise than in consequence of a motion referred to in paragraph (a),
notify the Commission by notice in writing of that fact.
(2) A licensed corporation, or an associated entity of an intermediary, which contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 5.
(3) In this section, a reference to an associated entity of an intermediary shall be construed as a reference to such associated entity other than one that is an authorized financial institution.


Section: 155 Heading: Notification of end of financial year by licensed corporations and associated entities of intermediaries, etc. Version Date: 01/04/2003


(1) A licensed corporation, and an associated entity of an intermediary, shall-
(a) in the case of the licensed corporation, within one month after it becomes licensed; or
(b) in the case of the associated entity, within one month after it becomes such an associated entity,
notify the Commission by notice in writing of the date on which its financial year ends.
(2) A licensed corporation, and an associated entity of an intermediary, shall not-
(a) except with the approval in writing of the Commission under subsection (3)(a), alter the date notified to the Commission under subsection (1) as the date on which its financial year ends;
(b) except with the approval in writing of the Commission under subsection (3)(b), adopt any period which exceeds 12 months as its financial year.
(3) On an application in writing by a licensed corporation or an associated entity of an intermediary, the Commission may, subject to such conditions as it considers appropriate, grant approval in writing in respect of-
(a) an alteration of the date notified to the Commission under subsection (1) as the date on which its financial year ends;
(b) the adoption of any period which exceeds 12 months as its financial year.
(4) A licensed corporation, or an associated entity of an intermediary, which contravenes subsection (1) or (2), or a condition imposed pursuant to subsection (3), commits an offence and is liable on conviction to a fine at level 5.
(5) Nothing in this section prejudices the operation of section 122 of the Companies Ordinance (Cap 32).
(6) In this section, a reference to an associated entity of an intermediary shall be construed as a reference to such associated entity other than one that is an authorized financial institution.


Section: 156 Heading: Audited accounts, etc. to be submitted by licensed corporations and associated entities of intermediaries Version Date: 01/04/2003


(1) Subject to subsections (3) and (4), a licensed corporation, and an associated entity of an intermediary, shall-
(a) prepare such financial statements and other documents, for such periods, as are prescribed by rules made under section 397 for the purposes of this section; and
(b) submit the financial statements and other documents, together with an auditor's report, to the Commission not later than 4 months after the end of the financial year to which they relate.
(2) Subject to subsections (3) and (4), a licensed corporation that ceases, in such circumstances as are prescribed by rules made under section 397 for the purposes of this section, carrying on all of the regulated activities for which it is licensed, and an associated entity of an intermediary that ceases to be such an associated entity, shall-
(a) prepare such financial statements and other documents, which shall be made up to (and including) the date of the cessation, as are prescribed by the rules; and
(b) submit the financial statements and other documents, together with an auditor's report, to the Commission not later than 4 months after the date of the cessation.
(3) Without limiting the generality of subsection (1) or (2), the requirements under such subsection relating to the financial statements and other documents, and the auditor's report, referred to in such subsection include the requirements that-
(a) the financial statements and other documents are to relate to such matters and contain such particulars as are prescribed by rules made under section 397 for the purposes of this section;
(b) the auditor's report is to contain such particulars, including such statement of opinion, as are prescribed by the rules;
(c) the financial statements and other documents, and the auditor's report, are to be prepared in accordance with such principles or bases as are prescribed by the rules; and
(d) without limiting the generality of section 129B of the Companies Ordinance (Cap 32), the financial statements and other documents are to be signed by such person as is prescribed by the rules.
(4) On an application in writing by the licensed corporation or the associated entity by which any financial statements and other documents, and any auditor's report, are required under subsection (1) or (2) to be submitted, the Commission may, where it is satisfied that there are special reasons for so doing, extend the period within which the financial statements and other documents, and the auditor's report, are required to be submitted, for such period and subject to such conditions as the Commission considers appropriate, and upon the Commission granting the extension, subsection (1) or (2) (as the case may be) shall apply subject to the extension accordingly.
(5) A licensed corporation, or an associated entity of an intermediary, which, without reasonable excuse, contravenes subsection (1) or (2), or a condition imposed pursuant to subsection (4), commits an offence and is liable-
(a) on conviction on indictment to a fine of $200000 and to imprisonment for 1 year; or
(b) on summary conviction to a fine at level 5 and to imprisonment for 6 months.
(6) A licensed corporation, or an associated entity of an intermediary, which, with intent to defraud, contravenes subsection (1) or (2), or a condition imposed pursuant to subsection (4), commits an offence and 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 of $500000 and to imprisonment for 1 year.
(7) In this section, a reference to an associated entity of an intermediary shall be construed as a reference to such associated entity other than one that is an authorized financial institution.

Section: 157 Heading: Auditors of licensed corporations or associated entities of intermediaries to lodge report with Commission, etc. in certain cases Version Date: 01/04/2003


(1) If a person-
(a) in the course of performing his functions as an auditor appointed under section 153 by a licensed corporation or an associated entity of an intermediary or, where an associated entity of an intermediary is an authorized financial institution, as an auditor appointed for the purposes of the Banking Ordinance (Cap 155) by the associated entity, becomes aware of a reportable matter; or
(b) in the course of performing his functions as an auditor appointed under section 153 by a licensed corporation or an associated entity of an intermediary, proposes to include any qualification or adverse statement in any report prepared by him on the financial statements or other documents of the licensed corporation or the associated entity (as the case may be) which are required to be submitted to the Commission under section 156,
he shall-
(i) in the case of paragraph (a), as soon as reasonably practicable after he becomes aware of the reportable matter, lodge with-
(A) in the case of an auditor appointed under section 153 by a licensed corporation or an associated entity of an intermediary, the Commission; or
(B) in the case of an auditor appointed for the purposes of the Banking Ordinance (Cap 155) by an associated entity of an intermediary, the Commission and the Monetary Authority,
a written report on the reportable matter;
(ii) in the case of paragraph (b), as soon as reasonably practicable after he first proposes the inclusion of the qualification or adverse statement, lodge with the Commission a written report on the qualification or adverse statement.
(2) If a person appointed as an auditor under section 153 by a licensed corporation or an associated entity of an intermediary-
(a) resigns as an auditor of the licensed corporation or the associated entity (as the case may be) before the expiration of his term of office as such auditor;
(b) does not seek reappointment as an auditor of the licensed corporation or the associated entity (as the case may be) at the expiration of his term of office as such auditor; or
(c) otherwise ceases to be an auditor of the licensed corporation or the associated entity (as the case may be),
he shall within one business day thereafter notify the Commission by notice in writing of that fact, and in the notice state the reasons therefor, and give particulars of any connected circumstances which he considers should be brought to the attention of the Commission or, where no such circumstances exist, make a statement to that effect.
(3) In this section-
"prescribed requirement" (订明规定) means such of the requirements under any of the rules made under section 148, 149, 151 or 152 as are prescribed by rules made under section 397 for the purposes of this definition;
"reportable matter" (须报告事项), in relation to a person acting as an auditor within the meaning of subsection (1)(a), means a matter that, in the opinion of the person-
(a) in the case of a licensed corporation-
(i) constitutes on the part of the licensed corporation or any of its associated entities a failure to comply with any prescribed requirement;
(ii) adversely affects to a material extent the financial position of the licensed corporation or any of its associated entities; or
(iii) constitutes on the part of the licensed corporation a failure to comply with section 146 or with all or any of the requirements of the financial resources rules that apply to it; or
(b) in the case of an associated entity of an intermediary-
(i) constitutes on the part of the associated entity a failure to comply with any prescribed requirement; or
(ii) where the associated entity is not an authorized financial institution, adversely affects to a material extent the financial position of the associated entity.



Section: 158 Heading: Immunity in respect of communication with Commission, etc. by auditors of licensed corporations or associated entities of intermediaries Version Date: 01/04/2003


(1) Without prejudice to sections 380 and 381, no duty which a person may be subject to as an auditor appointed under section 153 by a licensed corporation or an associated entity of an intermediary or, where an associated entity of an intermediary is an authorized financial institution, as an auditor appointed for the purposes of the Banking Ordinance (Cap 155) by the associated entity shall be regarded as contravened by reason of his communicating in good faith to the Commission or the Monetary Authority, whether or not in response to a request made by the Commission or the Monetary Authority (as the case may be), any information or opinion on a matter which-
(a) he becomes aware of in his capacity as such auditor (whether or not in the course of performing his functions as such auditor); and
(b) is relevant to any function of the Commission or the Monetary Authority (as the case may be).
(2) In addition to applying to a person who is an auditor appointed under section 153 by a licensed corporation or an associated entity of an intermediary, or appointed for the purposes of the Banking Ordinance (Cap 155) by an associated entity of an intermediary, subsection (1) also applies to-
(a) a person whose appointment as an auditor appointed under section 153 by a licensed corporation or an associated entity of an intermediary, or appointed for the purposes of the Banking Ordinance (Cap 155) by an associated entity of an intermediary, has ceased, in which case a reference to a matter in that subsection shall be construed on the basis that paragraph (a) of that subsection requires the matter to be one which he becomes aware of in his capacity as such auditor (whether or not in the course of performing his functions as such auditor) before the appointment has ceased;
(b) an auditor appointed, whether or not under section 153 or for the purposes of the Banking Ordinance (Cap 155), by a former licensed corporation or by a former associated entity of an intermediary, in which case a reference to a matter in that subsection shall be construed on the basis that paragraph (a) of that subsection requires the matter to be one which he becomes aware of in his capacity as such auditor (whether or not in the course of performing his functions as such auditor); and
(c) a person whose appointment as an auditor, whether or not under section 153 or for the purposes of the Banking Ordinance (Cap 155), by a former licensed corporation or by a former associated entity of an intermediary, has ceased, in which case a reference to a matter in that subsection shall be construed on the basis that paragraph (a) of that subsection requires the matter to be one which he becomes aware of in his capacity as such auditor (whether or not in the course of performing his functions as such auditor) before the appointment has ceased.
(3) In this section-
"former associated entity of an intermediary" (中介人的前有联系实体) means a corporation which was formerly an associated entity of an intermediary;
"former licensed corporation" (前持牌法团) means a corporation which was formerly a licensed corporation.

Section: 159 Heading: Power of Commission to appoint auditors for licensed corporations and their associated entities Version Date: 01/04/2003


(1) Subject to subsection (3), where-
(a) a licensed corporation has failed to satisfy the Commission in accordance with section 147 that it complies with all of the requirements of the financial resources rules that apply to it;
(b) the Commission has reasonable cause to believe that a licensed corporation or any of its associated entities has failed to comply with any prescribed requirement;
(c) the Commission has reasonable cause to believe that a licensed corporation or any of its associated entities has failed to submit any financial statements or other documents in accordance with section 156; or
(d) the Commission has received a written report lodged by a person under section 157 in relation to a licensed corporation or any of its associated entities,
the Commission may appoint an auditor to examine and audit, either generally or in respect of any particular matter, the accounts and records of the licensed corporation and any of its associated entities (including records of transactions entered into by the licensed corporation with any other person and of client assets of the licensed corporation received or held by the licensed corporation or the associated entity (as the case may be)), and, without prejudice to section 161, to report to the Commission on such matters as the Commission may direct.
(2) Where an auditor is appointed under subsection (1) to examine and audit the accounts and records of a licensed corporation and any of its associated entities, the auditor may, for the purpose of carrying out the examination and audit, examine any client assets of the licensed corporation received or held by the licensed corporation or the associated entity (as the case may be).
(3) The Commission shall not appoint an auditor under subsection (1) to examine and audit the accounts and records of an associated entity that is an authorized financial institution unless the Commission has first consulted the Monetary Authority in respect of the appointment and of the scope of the examination and audit to be carried out by the auditor.
(4) Subject to subsection (5), where an auditor appointed under subsection (1) has examined and audited the accounts and records of a licensed corporation or an associated entity of a licensed corporation, the Commission may, where it is of the opinion that it is appropriate to do so having regard to the conduct (whether before or after the appointment) of the licensed corporation or the associated entity (as the case may be), by notice in writing direct the licensed corporation or the associated entity (as the case may be) to pay a specified amount, being the whole or a part of the costs and expenses of the examination and audit, within the specified time and in the specified manner.
(5) The Commission shall not give a direction under subsection (4) unless it has given the licensed corporation or the associated entity to which the direction is to be given a reasonable opportunity of being heard.
(6) Where a licensed corporation or an associated entity of a licensed corporation fails to comply with a direction of the Commission under subsection (4), the Commission may recover the specified amount referred to in the direction as a civil debt due to it.
(7) In this section, "prescribed requirement" (订明规定) means such of the requirements under any of the rules made under section 148, 149, 151 or 152 as are prescribed by rules made under section 397 for the purposes of this definition.

Section: 160 Heading: Power of Commission to appoint auditors for licensed corporations and their associated entities on application Version Date: 01/04/2003


(1) Subject to subsections (3) to (6), on an application in writing by a person who alleges that a licensed corporation or any of its associated entities-
(a) has failed to account to the person as a client of the licensed corporation for any client assets held on behalf of the person by the licensed corporation or the associated entity (as the case may be); or
(b) has failed to act in accordance with instructions given by the person as a client of the licensed corporation to the licensed corporation or the associated entity (as the case may be), and has failed-
(i) to account to the person for any profit that may have been secured or increased by the person had the instructions been followed; or
(ii) to compensate the person for any loss that may have been avoided or reduced by the person had the instructions been followed,
the Commission may appoint an auditor to examine and audit, either generally or in respect of any particular matter, the accounts and records of the licensed corporation and any of its associated entities (including records of transactions entered into by the licensed corporation with any other person and of client assets of the licensed corporation received or held by the licensed corporation or the associated entity (as the case may be)), and, without prejudice to section 161, to report to the Commission on such matters as the Commission may direct.
(2) Where an auditor is appointed under subsection (1) to examine and audit the accounts and records of a licensed corporation and any of its associated entities, the auditor may, for the purpose of carrying out the examination and audit, examine any client assets of the licensed corporation received or held by the licensed corporation or the associated entity (as the case may be).
(3) A person making an application pursuant to subsection (1) shall state in the application-
(a) the particulars of the circumstances in which any licensed corporation or any associated entity of a licensed corporation is alleged to have failed to account for any client assets, or to act in accordance with instructions given to the licensed corporation or the associated entity and to account for any profit or compensate for any loss (as the case may be);
(b) the particulars of any client assets concerned;
(c) the particulars of the transactions in respect of which the alleged failure has occurred; and
(d) any other particulars the Commission may require,
and shall verify all statements in the application by statutory declaration, which may be taken by any person authorized by the Commission in that behalf.
(4) The Commission shall not appoint an auditor under subsection (1) unless it is satisfied that-
(a) the person making the application pursuant to that subsection has a good reason for making the application; and
(b) it is in the interest of-
(i) the licensed corporation and the associated entity the accounts and records of which are to be examined and audited by the auditor;
(ii) the person making the application; or
(iii) the investing public or the public,
that the auditor be appointed.
(5) The Commission shall not appoint an auditor under subsection (1) to examine and audit the accounts and records of an associated entity that is an authorized financial institution unless the Commission has first consulted the Monetary Authority in respect of the appointment and of the scope of the examination and audit to be carried out by the auditor.
(6) The Commission shall not appoint an auditor under subsection (1) to examine and audit the accounts and records of a licensed corporation or an associated entity of a licensed corporation unless the Commission has given the licensed corporation or the associated entity (as the case may be) a reasonable opportunity of being heard.
(7) For the purposes of the law of defamation, every statement in an application made pursuant to subsection (1) shall, if made in good faith and without malice, be privileged.
(8) Subject to subsection (9), where an auditor appointed under subsection (1) has examined and audited the accounts and records of a licensed corporation or an associated entity of a licensed corporation, the Commission may, where it is of the opinion that it is appropriate to do so having regard to the conduct (whether before or after the appointment) of the licensed corporation or the associated entity (as the case may be) and of the person making the application pursuant to subsection (1) in respect of the appointment, by notice in writing direct the licensed corporation or the associated entity (as the case may be) or the person making the application to pay a specified amount, being-
(a) in the case of the licensed corporation or the associated entity (as the case may be), the whole or a part of the costs and expenses of the examination and audit; or
(b) in the case of the person making the application, the whole or a part of the costs and expenses of the examination and audit to the extent that they have been reasonably incurred for the purpose of ascertaining matters to which the application relates,
within the specified time and in the specified manner.
(9) The Commission shall not give a direction under subsection (8) unless it has given the licensed corporation, the associated entity or the person to which or to whom the direction is to be given a reasonable opportunity of being heard.
(10) Where a licensed corporation, an associated entity of a licensed corporation or a person making an application pursuant to subsection (1) fails to comply with a direction of the Commission under subsection (8), the Commission may recover the specified amount referred to in the direction as a civil debt due to it.

Section: 161 Heading: Auditors appointed under section 159 or 160 to report to Commission Version Date: 01/04/2003


(1) An auditor appointed under section 159 or 160 shall make such interim reports to the Commission as it may require and shall, on the conclusion of the examination and audit which he is appointed to carry out, make a final report to the Commission.
(2) A report referred to in subsection (1) shall be made within such time and in such manner as the Commission may direct.
(3) The Commission may, if it considers appropriate, forward a copy of any report made to it under subsection (1) to the licensed corporation or the associated entity the accounts and records of which are the subject of the examination and audit referred to in the report.

Section: 162 Heading: Powers of auditors appointed under section 159 or 160 Version Date: 01/04/2003


(1) An auditor appointed under section 159 or 160 to examine and audit the accounts and records of any licensed corporation and any of its associated entities, for the purpose of carrying out the examination and audit, may, in addition to any other action that the auditor may reasonably take for the purpose-
(a) examine on oath or otherwise-
(i) any officer, employee and agent of the licensed corporation or the associated entity (as the case may be); and
(ii) any auditor appointed by the licensed corporation or the associated entity (as the case may be) under section 153 or, where the associated entity is an authorized financial institution, for the purposes of the Banking Ordinance (Cap 155),
in respect of any matter relating to the business of the licensed corporation or the associated entity (as the case may be) or to the client assets of the licensed corporation received or held by the licensed corporation or the associated entity (as the case may be) and, for that purpose, administer oaths accordingly;
(b) require any officer, employee and agent of the licensed corporation or the associated entity (as the case may be) to-
(i) produce any accounts and records concerning any matter relating to the business of the licensed corporation or the associated entity (as the case may be) or to the client assets of the licensed corporation received or held by the licensed corporation or the associated entity (as the case may be); and
(ii) explain the contents of the accounts and records so produced;
(c) require any auditor appointed by the licensed corporation or the associated entity (as the case may be) under section 153 or, where the associated entity is an authorized financial institution, for the purposes of the Banking Ordinance (Cap 155) to-
(i) produce any accounts and records held by him concerning any matter relating to the business of the licensed corporation or the associated entity (as the case may be) or to the client assets of the licensed corporation received or held by the licensed corporation or the associated entity (as the case may be); and
(ii) explain the contents of the accounts and records so produced;
(d) require a recognized exchange company or recognized clearing house to-
(i) produce any accounts and records kept by it, or information in its possession, concerning any matter relating to the business of the licensed corporation or the associated entity (as the case may be) or to the client assets of the licensed corporation received or held by the licensed corporation or the associated entity (as the case may be); and
(ii) explain the contents of the accounts and records, and the information, so produced;
(e) require any person receiving or holding client assets of the licensed corporation on behalf of the licensed corporation or the associated entity (as the case may be) to-
(i) produce any accounts and records kept by the person, or information in his possession, concerning any matter relating to the client assets; and
(ii) explain the contents of the accounts and records, and the information, so produced;
(f) employ any person he considers necessary to assist him in carrying out the examination and audit which he is appointed to carry out; and
(g) for the purpose of carrying out the examination and audit which he is appointed to carry out, authorize in writing any person employed by him to do any act or thing referred to in this subsection (except to examine a person on oath under paragraph (a) or to exercise any power conferred by this paragraph).
(2) If an auditor appointed under section 159 or 160, or a person authorized under subsection (1)(g), reasonably considers it necessary for the purpose of carrying out the examination and audit of the accounts and records of a licensed corporation and any of its associated entities which the auditor is appointed to carry out, the powers referred to in subsection (1)-
(a) are exercisable in relation to any other business carried on by the licensed corporation in conjunction with any regulated activity for which it is licensed and to any business of any of its associated entities, in which case any reference to "any matter relating to the business of the licensed corporation or the associated entity (as the case may be)" in subsection (1)(a) to (g) shall be construed on the basis that it refers to any matter relating to such other business carried on by the licensed corporation or to such business of any of its associated entities; and
(b) are exercisable in relation to a related corporation of the licensed corporation or any of its associated entities, in which case-
(i) any reference to "any officer, employee and agent of the licensed corporation or the associated entity (as the case may be)" in subsection (1)(a) to (g) shall be construed on the basis that it refers to any officer, employee and agent of the related corporation;
(ii) any reference to "any auditor appointed by the licensed corporation or the associated entity (as the case may be) under section 153 or, where the associated entity is an authorized financial institution, for the purposes of the Banking Ordinance (Cap 155)" in subsection (1)(a) to (g) shall be construed on the basis that it refers to any auditor appointed by the related corporation, whether under this Ordinance or otherwise;
(iii) any reference to "any matter relating to the business of the licensed corporation or the associated entity (as the case may be) or to the client assets of the licensed corporation received or held by the licensed corporation or the associated entity (as the case may be)" in subsection (1)(a) to (g) shall be construed on the basis that it refers, apart from the matter originally referred to, also to any matter relating to the business of the related corporation; and
(iv) any reference to "any person receiving or holding client assets of the licensed corporation on behalf of the licensed corporation or the associated entity (as the case may be)" in subsection (1)(a) to (g) shall be construed on the basis that it refers to any person receiving or holding client assets of the licensed corporation on behalf of the related corporation.
(3) A person who, without reasonable excuse, fails to comply with any requirement imposed on him (including the requirement to answer any question put to him) under this section (whether by an auditor appointed under section 159 or 160 or a person authorized under subsection (1)(g)) commits an offence and is liable-
(a) on conviction on indictment to a fine of $200000 and to imprisonment for 1 year; or
(b) on summary conviction to a fine at level 5 and to imprisonment for 6 months.
(4) A person who-
(a) in purported compliance with a requirement imposed on him (including the requirement to answer any question put to him) under this section (whether by an auditor appointed under section 159 or 160 or a person authorized under subsection (1)(g)), produces any accounts or records or gives an answer which is false or misleading in a material particular; and
(b) knows that, or is reckless as to whether, the accounts or records or the answer is false or misleading in a material particular,
commits an offence and is liable-
(i) on conviction on indictment to a fine of $1000000 and to imprisonment for 2 years; or
(ii) on summary conviction to a fine at level 6 and to imprisonment for 6 months.
(5) A person who, with intent to defraud-
(a) fails to comply with any requirement imposed on him (including the requirement to answer any question put to him) under this section (whether by an auditor appointed under section 159 or 160 or a person authorized under subsection (1)(g)); or
(b) in purported compliance with a requirement imposed on him (including the requirement to answer any question put to him) under this section (whether by an auditor appointed under section 159 or 160 or a person authorized under subsection (1)(g)), produces any accounts or records or gives an answer which is false or misleading in a material particular,
commits an offence and is liable-
(i) on conviction on indictment to a fine of $1000000 and to imprisonment for 7 years; or
(ii) on summary conviction to a fine of $500000 and to imprisonment for 1 year.

Section: 163 Heading: Offence to destroy, conceal, or alter accounts, records or documents, etc. Version Date: 01/04/2003


(1) A person commits an offence if he, with intent to prevent, delay or obstruct the carrying out of any examination and audit which an auditor appointed under this Part is required to carry out-
(a) deletes, destroys, mutilates, falsifies, conceals, alters or otherwise makes unavailable any accounts, records or documents related to such examination and audit, or aids or abets or conspires with another person to do so;
(b) disposes or procures the disposal, in any manner and by any means, of any property related to such examination and audit, or aids or abets or conspires with another person to do so; or
(c) leaves, or attempts to leave, Hong Kong.
(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 of $500000 and to imprisonment for 1 year.
(3) If, in proceedings for an offence under subsection (1), it is proved that the accused person deleted, destroyed, mutilated, falsified, concealed or altered any accounts, records or documents related to any examination and audit which an auditor appointed under this Part is required to carry out, or aided or abetted or conspired with another person to do so, he shall, in the absence of evidence to the contrary, be presumed to have done so with intent to prevent, delay or obstruct the carrying out of such examination and audit.

第5分部─审计

条： 153 条文标题： 持牌法团、及中介人的有联系实体须委任核数师 版本日期： 01/04/2003

(1) 持牌法团须委任一名核数师，以执行根据或依据本条例或其他条例须由该法团的核数师执行的职能。
(2) 中介人的有联系实体须委任一名核数师，以执行根据或依据本条例或其他条例须由该实体的核数师执行的职能。
(3) 持牌法团、及中介人的有联系实体，须在根据第(1)或(2)款(视属何情况而定)委任核数师后7个营业日内，以书面将该核数师的姓名或名称及地址通知证监会。
(4) 任何人─
(a) (i) 如是帐目须予审计的持牌法团或有联系实体的高级人员或雇员，或正受雇于该等人员或雇员，即没有资格根据第(1)或(2)款获委任；或
(ii) 如属于为施行本款而藉根据第397条订立的规则订明的类别的人，即没有资格根据第(1)或(2)款获委任；
(b) 即使已获帐目须予审计的持牌法团或有联系实体委任为核数师(不论该项委任是为《公司条例》(第32章)的目的或为其他目的而作出)，在不抵触(a)段的条文下，除该项委任外，该人仍有资格根据第(1)或(2)款获委任。
(5) 如任何持牌法团、或中介人的有联系实体─
(a) 在获发牌或成为该实体(视属何情况而定)后一个月内；或
(b) 在获发牌或成为该实体(视属何情况而定)后，首次根据第(1)或(2)款委任或其后根据第(1)或(2)款委任的任何核数师不再担任该核数师后一个月内，
没有按照第(1)或(2)款委任核数师，即属犯罪─
(i) 一经循公诉程序定罪，可处罚款$200000及监禁1年；或
(ii) 一经循简易程序定罪，可处第5级罚款及监禁6个月。
(6) 任何持牌法团、或中介人的有联系实体违反第(3)款，即属犯罪，一经定罪，可处第5级罚款。
(7) 本条并不损害任何其他与核数师的委任有关的规定的施行，不论该等规定是否根据《公司条例》(第32章)作出。
(8) 在本条中，中介人的有联系实体指上述实体中并非属认可财务机构者。

条： 154 条文标题： 持牌法团、及中介人的有联系实体须就拟更换核数师发出通知 版本日期： 01/04/2003


(1) 凡任何持牌法团、或中介人的有联系实体─
(a) 向其成员发出通知，表示拟于成员大会上提出─
(i) 在其根据第153条委任的核数师的任期届满前将该核数师辞退的动议；或
(ii) 在其根据第153条委任的核数师任期届满时不再度委任他或以另一核数师取而代之的动议；或
(b) 根据第153条委任的核数师因(a)段所提述的动议以外的原因，而在其任期届满前不再担任该法团或该实体(视属何情况而定)的核数师，
该法团或该实体(视属何情况而定)须在此事发生后一个营业日内，以书面将此事通知证监会。
(2) 任何持牌法团、或中介人的有联系实体违反第(1)款，即属犯罪，一经定罪，可处第5级罚款。
(3) 在本条中，中介人的有联系实体指上述实体中并非属认可财务机构者。
： 155 条文标题： 持牌法团、及中介人的有联系实体等须就财政年度的终结发出通知 版本日期： 01/04/2003


(1) 持牌法团、及中介人的有联系实体须在下述限期内，以书面将其财政年度终结的日期通知证监会─
(a) (就持牌法团而言)在它获发牌后一个月内；或
(b) (就有联系实体而言)在它成为该实体后一个月内。
(2) 持牌法团、及中介人的有联系实体─
(a) 除非得到证监会根据第(3)(a)款给予的书面批准，否则不得更改根据第(1)款通知证监会的其财政年度终结的日期；
(b) 除非得到证监会根据第(3)(b)款给予的书面批准，否则不得采用一段超过12个月的期间作为其财政年度。
(3) 持牌法团、或中介人的有联系实体如就以下事宜提出书面申请，证监会可在该会认为适当的条件的规限下给予书面批准─
(a) 要求更改根据第(1)款通知证监会的其财政年度终结的日期；
(b) 要求采用一段超过12个月的期间作为其财政年度。
(4) 任何持牌法团、或中介人的有联系实体违反第(1)或(2)款或依据第(3)款施加的条件，即属犯罪，一经定罪，可处第5级罚款。
(5) 本条并不损害《公司条例》(第32章)第122条的施行。
(6) 在本条中，中介人的有联系实体指上述实体中并非属认可财务机构者。

条： 156 条文标题： 持牌法团、及中介人的有联系实体须呈交经审计帐目等 版本日期： 01/04/2003


(1) 在不抵触第(3)款的条文下及除第(4)款另有规定外，持牌法团、及中介人的有联系实体须─
(a) 就为施行本条而藉根据第397条订立的规则订明的期间，拟备该等规则订明的财务报表及其他文件；并
(b) 在该等报表及文件所关乎的财政年度终结后4个月内，将该等报表及文件连同核数师报告呈交证监会。
(2) 在不抵触第(3)款的条文下及除第(4)款另有规定外，如持牌法团在为施行本条而藉根据第397条订立的规则订明的情况下，于某日停止进行它获发牌进行的所有受规管活动，或如中介人的有联系实体停止作为该人的有联系实体，则该法团或该实体(视属何情况而定)须─
(a) 拟备该等规则订明而以该日状况为准的财务报表及其他文件；并
(b) 在该日后4个月内，将该等报表及文件连同核数师报告呈交证监会。
(3) 在不局限第(1)或(2)款的一般性的原则下，该等条文中关乎财务报表、其他文件及核数师报告的规定，包括以下规定─
(a) 该等报表及文件须就为施行本条而藉根据第397条订立的规则订明的事宜而拟备，并载有如此订明的详情；
(b) 该报告须载有该等规则订明的详情，包括如此订明的意见陈述；
(c) 该等报表、文件及报告须按照该等规则订明的原则或基础拟备；及
(d) 在不局限《公司条例》(第32章)第129B条的一般性的原则下，该等报表及文件须由该等规则订明的人签署。
(4) 凡根据第(1)或(2)款规定须呈交财务报表、其他文件及核数师报告的持牌法团或有联系实体提出书面申请，而证监会信纳有特别理由支持，则该会可将呈交该等报表、文件及报告的限期，延展该会认为适当的一段时期，并可施加该会认为适当的条件以作规限；凡该会准予延展时限，第(1)或(2)款(视属何情况而定)须在该项延展的规限下适用。
(5) 任何持牌法团、或中介人的有联系实体无合理辩解而违反第(1)或(2)款或依据第(4)款施加的条件，即属犯罪─
(a) 一经循公诉程序定罪，可处罚款$200000及监禁1年；或
(b) 一经循简易程序定罪，可处第5级罚款及监禁6个月。
(6) 任何持牌法团、或中介人的有联系实体意图诈骗而违反第(1)或(2)款或依据第(4)款施加的条件，即属犯罪─
(a) 一经循公诉程序定罪，可处罚款$1000000及监禁7年；或
(b) 一经循简易程序定罪，可处罚款$500000及监禁1年。
(7) 在本条中，中介人的有联系实体指上述实体中并非属认可财务机构者。

条： 157 条文标题： 持牌法团、或中介人的有联系实体的核数师须在某些情况下向证监会等提交报告 版本日期： 01/04/2003


(1) 如─
(a) 获持牌法团、或中介人的有联系实体根据第153条委任的核数师，或在中介人的有联系实体属认可财务机构的情况下，获该实体为《银行业条例》(第155章)的目的而委任的核数师，在执行其职能时察觉有须报告事项；或
(b) 获持牌法团、或中介人的有联系实体根据第153条委任的核数师，在执行其职能时拟在他就根据第156条须呈交证监会的该法团或该实体(视属何情况而定)的财务报表或其他文件而拟备的报告内，加入任何有所保留的意见或不利声明，
则─
(i) 在(a)段所述的情况下，他须在察觉有该项须报告事项后，在合理地切实可行的范围内尽快按以下规定提交关于该事项的书面报告─
(A) 如他获持牌法团、或中介人的有联系实体根据第153条委任，则提交予证监会；或
(B) 如他获中介人的有联系实体为《银行业条例》(第155章)的目的而委任，则提交予证监会及金融管理专员；
(ii) 在(b)段所述的情况下，他须在首次拟加入该项有所保留的意见或不利声明后，在合理地切实可行的范围内尽快向证监会提交关于该项意见或声明的书面报告。
(2) 获持牌法团、或中介人的有联系实体根据第153条委任的核数师如─
(a) 在他作为该法团或该实体(视属何情况而定)的核数师的任期届满前辞去核数师职务；
(b) 在他作为该法团或该实体(视属何情况而定)的核数师的任期届满时不欲连任；或
(c) 在其他情况下不再担任该法团或该实体(视属何情况而定)的核数师，
则须在随后一个营业日内，以书面将此事通知证监会，并在通知书上述明理由，以及提供他认为应促请该会注意的相关情况的详情，如无此等情况，则须作出表明此意的陈述。
(3) 在本条中─
“订明规定”(prescribed requirement) 指根据第148、149、151或152条订立的任何规则中，由根据第397条订立的规则为本定义的目的而订明为订明规定的规定；
“须报告事项”(reportable matter) 就担任第(1)(a)款所指的核数师的人而言─
(a) 在他是持牌法团的核数师的情况下，指他认为─
(i) 构成该法团或其任何有联系实体没有遵从任何订明规定的事情；
(ii) 对该法团或其任何有联系实体的财务状况有达关键程度的不利影响的事情；或
(iii) 构成该法团没有遵从第146条或财政资源规则的全部或任何适用于它的规定的事情；或
(b) 在他是中介人的有联系实体的核数师的情况下，指他认为─
(i) 构成该实体没有遵从任何订明规定的事情；或
(ii) (如该实体并非认可财务机构)对该实体的财务状况有达关键程度的不利影响的事情。

条： 158 条文标题： 持牌法团、或中介人的有联系实体的核数师无须就他向证监会传达的某些资料承担法律责任 版本日期： 01/04/2003



(1) 在不损害第380及381条的原则下，根据第153条获持牌法团、或中介人的有联系实体委任的核数师或在中介人的有联系实体属认可财务机构的情况下，获该实体为《银行业条例》(第155章)的目的而委任的核数师，如将─
(a) 他基于该核数师身分而察觉(不论是否在执行该核数师职能时察觉)的；及
(b) 对证监会或金融管理专员的任何职能属有关的，
事情的任何资料或对该事情的意见，真诚地传达予证监会或金融管理专员(视属何情况而定)，则不论他是否应证监会或金融管理专员(视属何情况而定)的要求而如此行事，他不得因此被视为违反他作为核数师须履行的责任。
(2) 第(1)款除适用于根据第153条获持牌法团、或中介人的有联系实体委任的核数师，以及中介人的有联系实体为《银行业条例》(第155章)的目的而委任的核数师外─
(a) 亦适用于曾根据第153条获持牌法团、或中介人的有联系实体委任为核数师，或曾获中介人的有联系实体为《银行业条例》(第155章)的目的而委任的核数师，但其委任已终止的人；在此情况下，第(1)款提述的事情，须解释为他在其委任终止之前，该款(a)段规定他须基于该核数师身分而察觉(不论是否在执行该核数师职能时察觉)的任何事情；
(b) 亦适用于获前持牌法团、或中介人的前有联系实体委任的核数师(不论该项委任是否根据第153条或为《银行业条例》(第155章)的目的而作出)；在此情况下，第(1)款提述的事情，须解释为该款(a)段规定他须基于该核数师身分而察觉(不论是否在执行该核数师职能时察觉)的任何事情；及
(c) 亦适用于曾获前持牌法团、或中介人的前有联系实体委任为核数师(不论该项委任是否根据第153条或为《银行业条例》(第155章)的目的而作出)但其委任已终止的人；在此情况下，第(1)款提述的事情，须解释为他在其委任终止之前，该款(a)段规定他须基于该核数师身分而察觉(不论是否在执行该核数师职能时察觉)的任何事情。
(3) 在本条中─
“中介人的前有联系实体”(former associated entity of an intermediary) 指曾是但已不再是中介人的有联系实体的法团；
“前持牌法团”(former licensed corporation) 指曾是但已不再是持牌法团的法团。

条： 159 条文标题： 证监会就持牌法团及其有联系实体委任核数师的权力 版本日期： 01/04/2003


(1) 在符合第(3)款的规定下，凡─
(a) 某持牌法团没有按照第147条令证监会信纳该法团有遵从所有适用于它的财政资源规则的规定；
(b) 证监会有合理理由相信某持牌法团或该法团的某有联系实体没有遵从任何订明规定；
(c) 证监会有合理理由相信某持牌法团或该法团的某有联系实体没有按照第156条呈交财务报表或其他文件；或
(d) 证监会接到根据第157条就某持牌法团或该法团的某有联系实体而提交的书面报告，
则证监会可委任核数师全面或就任何个别事项审查和审计该法团及其任何有联系实体的帐目及纪录(包括该法团与任何其他人达成的交易的纪录，以及该法团或帐目及纪录被审查和审计的该实体(视属何情况而定)所收取或持有的该法团的客户资产的纪录)，并在不损害第161条的原则下，就该会所指示的事项向该会作出报告。
(2) 凡有核数师根据第(1)款获委任，以审查和审计某持牌法团及其任何有联系实体的帐目及纪录，他可为该项审查和审计的进行而审查该法团或该实体(视属何情况而定)所收取或持有的该法团的任何客户资产。
(3) 如有关的有联系实体属认可财务机构，则证监会在根据第(1)款委任核数师审查和审计该实体的帐目及纪录之前，须先就该项委任以及该项审查和审计的范围谘询金融管理专员。
(4) 在符合第(5)款的规定下，凡根据第(1)款委任的核数师已审查和审计有关的持牌法团或持牌法团的有联系实体的帐目及纪录，而证监会在考虑到该法团或该实体(视属何情况而定)的行为(不论是在该项委任之前或之后的行为)后，认为应由该法团或该实体(视属何情况而定)支付审查和审计的全部或部分费用及开支，则该会可藉书面通知，指示该法团或该实体(视属何情况而定)于指明时间内按指明方式，支付一笔相等于该等费用及开支的全部或部分的指明款项。
(5) 证监会在根据第(4)款向某持牌法团或有联系实体作出指示前，须给予该法团或该实体合理的陈词机会。
(6) 持牌法团或持牌法团的有联系实体如没有遵从根据第(4)款作出的指示，证监会可将该指示所提述的指明款项作为拖欠该会的民事债项予以追讨。
(7) 在本条中，“订明规定”(prescribed requirement) 指根据第148、149、151或152条订立的任何规则中，由根据第397条订立的规则为本定义的目的而订明为订明规定的规定。

条： 160 条文标题： 证监会应申请而就持牌法团或其有联系实体委任核数师的权力 版本日期： 01/04/2003


(1) 在不抵触第(3)至(6)款的条文下，如有人提出书面申请，声称某持牌法团或该法团的某有联系实体─
(a) 没有就该法团或该实体(视属何情况而定)代该人持有的任何客户资产，向作为该法团的客户的该人作出交代；或
(b) 没有按照作为该法团的客户的该人给予该法团或该实体(视属何情况而定)的指示行事，且─
(i) 没有就假若该指示获依循该人可获得或增加的利润，向他作出交代；或
(ii) 没有就假若该指示获依循他可避免或减少的损失，向他作出赔偿，
则证监会可委任核数师全面或就任何个别事项审查和审计该法团及其任何有联系实体的帐目及纪录(包括该法团与任何其他人达成的交易的纪录，以及该法团或帐目及纪录被审查和审计的该实体(视属何情况而定)所收取或持有的该法团的客户资产的纪录)，并在不损害第161条的原则下，就该会所指示的事项向该会作出报告。
(2) 凡有核数师根据第(1)款获委任，以审查和审计某持牌法团及其任何有联系实体的帐目及纪录，他可为该项审查和审计的进行而审查该法团或该实体(视属何情况而定)所收取或持有的该法团的任何客户资产。
(3) 依据第(1)款提出申请的人，须在该申请中述明─
(a) 有关的持牌法团或持牌法团的有联系实体遭指称没有就任何客户资产作出交代的详情，或没有按照给予它的指示行事及就任何利润作出交代或就任何损失作出赔偿(视属何情况而定)的详情；
(b) 所涉及的客户资产的详情；
(c) 指称没有作出交代或没有依循指示行事的事件所涉及的交易的详情；及
(d) 证监会要求提供的任何其他详情，
该人并须藉法定声明核实该申请中的所有陈述，而该声明可由证监会为此授权的任何人监理。
(4) 除非证监会信纳以下条件获符合，否则不得根据第(1)款委任核数师─
(a) 依据该款提出有关申请的人有好的理由提出该项申请；及
(b) 委任核数师是符合以下人士的利益的─
(i) 帐目及纪录将被该核数师审查和审计的持牌法团及有联系实体；
(ii) 提出该项申请的人；或
(iii) 投资大众或公众。
(5) 如有关的有联系实体属认可财务机构，则证监会在根据第(1)款委任核数师审查和审计该实体的帐目及纪录之前，须先就该项委任以及该项审查和审计的范围谘询金融管理专员。
(6) 除非证监会已给予有关的持牌法团或持牌法团的有联系实体合理的陈词机会，否则不得根据第(1)款委任核数师审查和审计该法团或该实体(视属何情况而定)的帐目及纪录。
(7) 就诽谤法而言，在依据第(1)款提出的申请中以真诚而并非恶意作出的每项陈述，均享有特权。
(8) 在符合第(9)款的规定下，凡根据第(1)款委任的核数师已审查和审计有关的持牌法团或持牌法团的有联系实体的帐目及纪录，而证监会在考虑到该法团或该实体(视属何情况而定)的行为(不论是在该项委任之前或之后的行为)，以及依据第(1)款提出该项委任申请的人的行为后，认为应由该法团或该实体(视属何情况而定)或该人支付以下的指明款项，则该会可藉书面通知，指示该法团或该实体(视属何情况而定)或该人于指明时间内按指明方式，支付该等款项─
(a) (就该法团或该实体(视属何情况而定)而言)审查和审计的全部或部分费用及开支；或
(b) (就该人而言)审查和审计的全部或部分费用及开支，但以为确定该项申请所关乎的事宜而合理地招致的费用及开支为限。
(9) 证监会在根据第(8)款向某持牌法团、有联系实体或人作出指示前，须给予该法团、该实体或该人合理的陈词机会。
(10) 持牌法团、持牌法团的有联系实体或依据第(1)款提出申请的人如没有遵从根据第(8)款作出的指示，证监会可将该指示所提述的指明款项作为拖欠该会的民事债项予以追讨。

条： 161 条文标题： 根据第159或160条委任的核数师须向证监会提交报告 版本日期： 01/04/2003


(1) 根据第159或160条获委任的核数师须按证监会的规定，向该会提交中期报告，并在他获委任进行的审查和审计完成后，向该会提交最后报告。
(2) 第(1)款提述的报告须在证监会指示的时间内以该会指示的方式提交。
(3) 凡根据第(1)款向证监会提交的任何报告所提述的审查和审计以某持牌法团或有联系实体的帐目及纪录为对象，证监会如认为适当，可将该报告递送至该法团或该实体(视属何情况而定)。

条： 162 条文标题： 根据第159或160条委任的核数师的权力 版本日期： 01/04/2003


(1) 根据第159或160条获委任审查和审计任何持牌法团及其任何有联系实体的帐目及纪录的核数师，为了进行该项审查和审计，除可采取他为进行该项审查和审计而可合理地采取的其他行动外，亦可─
(a) 就任何与该法团或该实体(视属何情况而定)的业务有关的事宜，或任何与该法团或该实体(视属何情况而定)所收取或持有的该法团的客户资产有关的事宜，讯问经宣誓或未经宣誓的以下人士─
(i) 该法团或该实体(视属何情况而定)的任何高级人员、雇员及代理人；及
(ii) 获该法团或该实体(视属何情况而定)根据第153条委任的任何核数师，或在该实体属认可财务机构的情况下，获该实体为《银行业条例》(第155章)的目的而委任的任何核数师，
以及为进行讯问的目的而监誓；
(b) 要求该法团或该实体(视属何情况而定)的任何高级人员、雇员及代理人─
(i) 交出帐目及纪录，而该等帐目及纪录是关乎任何与该法团或该实体(视属何情况而定)的业务有关的事宜，或任何与该法团或该实体(视属何情况而定)所收取或持有的该法团的客户资产有关的事宜的；及
(ii) 就所交出的帐目及纪录的内容作出解释；
(c) 要求获该法团或该实体(视属何情况而定)根据第153条委任的任何核数师，或在该实体属认可财务机构的情况下，获该实体为《银行业条例》(第155章)的目的而委任的任何核数师─
(i) 交出他持有的帐目及纪录，而该等帐目及纪录是关乎任何与该法团或该实体(视属何情况而定)的业务有关的事宜，或任何与该法团或该实体(视属何情况而定)所收取或持有的该法团的客户资产有关的事宜的；及
(ii) 就所交出的帐目及纪录的内容作出解释；
(d) 要求认可交易所或认可结算所─
(i) 交出它备存的帐目及纪录或它管有的资料，而该等帐目及纪录或该等资料是关乎任何与该法团或该实体(视属何情况而定)的业务有关的事宜，或任何与该法团或该实体(视属何情况而定)所收取或持有的该法团的客户资产有关的事宜的；及
(ii) 就所交出的帐目、纪录及资料的内容作出解释；
(e) 要求任何代该法团或该实体(视属何情况而定)收取或持有该法团的客户资产的人─
(i) 交出他备存的关乎与该等资产有关的事宜的帐目及纪录，或交出他管有的关乎该等事宜的资料；及
(ii) 就所交出的帐目、纪录及资料的内容作出解释；
(f) 雇用他认为需要的人协助进行他获委任进行的该项审查和审计；及
(g) 为进行该项审查和审计，以书面授权他雇用的人作出或进行本款提述的任何作为或事情(根据(a)段于某人宣誓后向该人进行讯问或行使本段赋予他的任何权力除外)。
(2) 如根据第159或160条获委任的核数师或根据第(1)(g)款获授权的人合理地认为，为进行该核数师获委任进行的对有关的持牌法团及其任何有联系实体的帐目及纪录的审查和审计而有此需要，则第(1)款提述的权力─
(a) 可就该法团连同它获发牌进行的任何受规管活动一并进行的任何其他业务，以及其任何有联系实体的任何业务而行使；在此情况下，第(1)(a)至(g)款中对“任何与该法团或该实体(视属何情况而定)的业务有关的事宜”的提述，须解释为对任何与该法团进行的该等其他业务或与该法团的任何有联系实体的业务有关的事宜的提述；及
(b) 可就该法团或其任何有联系实体的有连系法团而行使；在此情况下─
(i) 第(1)(a)至(g)款中对“该法团或该实体(视属何情况而定)的任何高级人员、雇员或代理人”的提述，须解释为对该有连系法团的任何高级人员、雇员或代理人的提述；
(ii) 第(1)(a)至(g)款中对“获该法团或该实体(视属何情况而定)根据第153条委任的任何核数师，或在该实体属认可财务机构的情况下，获该实体为《银行业条例》(第155章)的目的而委任的任何核数师”的提述，须解释为对获该有连系法团委任的任何核数师的提述，而不论该项委任是否根据本条例作出；
(iii) 第(1)(a)至(g)款中对“任何与该法团或该实体(视属何情况而定)的业务有关的事宜，或任何与该法团或该实体(视属何情况而定)所收取或持有的该法团的客户资产有关的事宜”的提述，除须解释为对文中原先所提述的事宜的提述外，亦须解释为对任何与该有连系法团的业务有关的事宜的提述；及
(iv) 第(1)(a)至(g)款中对“任何代该法团或该实体(视属何情况而定)收取或持有该法团的客户资产的人”的提述，须解释为对任何代该有连系法团收取或持有文中所提述的该法团的客户资产的人的提述。
(3) 任何人无合理辩解而没有遵从根据本条向他施加(不论是由根据第159或160条获委任的核数师或是由根据第(1)(g)款获授权的人所施加)的要求(包括要他回答向他提出的问题的要求)，即属犯罪─
(a) 一经循公诉程序定罪，可处罚款$200000及监禁1年；或
(b) 一经循简易程序定罪，可处第5级罚款及监禁6个月。
(4) 任何人─
(a) 在看来是遵从根据本条向他施加(不论是由根据第159或160条获委任的核数师或是由根据第(1)(g)款获授权的人所施加)的要求(包括要他回答向他提出的问题的要求)时，交出在要项上属虚假或具误导性的帐目或纪录，或给予在要项上属虚假或具误导性的答案；且
(b) 知道该等帐目、纪录或答案在要项上属虚假或具误导性，或罔顾该等帐目、纪录或答案是否在要项上属虚假或具误导性，
即属犯罪─
(i) 一经循公诉程序定罪，可处罚款$1000000及监禁2年；或
(ii) 一经循简易程序定罪，可处第6级罚款及监禁6个月。
(5) 任何人意图诈骗而─
(a) 没有遵从根据本条向他施加(不论是由根据第159或160条获委任的核数师或是由根据第(1)(g)款获授权的人所施加)的要求(包括要他回答向他提出的问题的要求)；或
(b) 在看来是遵从根据本条向他施加(不论是由根据第159或160条获委任的核数师或是由根据第(1)(g)款获授权的人所施加)的要求(包括要他回答向他提出的问题的要求)时，交出在要项上属虚假或具误导性的帐目或纪录，或给予在要项上属虚假或具误导性的答案，
即属犯罪─
(i) 一经循公诉程序定罪，可处罚款$1000000及监禁7年；或
(ii) 一经循简易程序定罪，可处罚款$500000及监禁1年。

： 163 条文标题： 销毁、隐藏或更改帐目、纪录或文件等的罪行 版本日期： 01/04/2003


(1) 任何人意图防止、阻延或阻挠进行根据本部获委任的核数师所需进行的审查和审计，而作出以下行为，即属犯罪─
(a) 删除、销毁、切割、揑改、隐藏、更改或以其他方法致使不能提供任何与该项审查和审计有关的帐目、纪录或文件，或协助或教唆或串同另一人如此行事；
(b) 不论以任何方式亦不论以任何途径，处置或促致处置任何与该项审查和审计有关的财产，或协助或教唆或串同另一人如此行事；或
(c) 离开或企图离开香港。
(2) 任何人犯第(1)款所订罪行─
(a) 一经循公诉程序定罪，可处罚款$1000000及监禁7年；或
(b) 一经循简易程序定罪，可处罚款$500000及监禁1年。
(3) 在就第(1)款所订罪行而进行的法律程序中，如证明被控人删除、销毁、切割、揑改、隐藏或更改任何与根据本部获委任的核数师所需进行的任何审查和审计有关的帐目、纪录或文件，或协助或教唆或串同另一人如此行事，被控人即推定为是意图防止、阻延或阻挠该项审查和审计的进行而如此行事，但如有相反证据，则作别论。

Section: 164 Heading: Restriction on receiving or holding of client assets Version Date: 14/12/2007


Division 6-Miscellaneous

(1) No person shall receive or hold in Hong Kong client assets of an intermediary unless the person is-
(a) the intermediary;
(b) an associated entity of the intermediary; or
(c) an excluded person.
(2) A person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable-
(a) on conviction on indictment to a fine of $200000 and to imprisonment for 2 years; or
(b) on summary conviction to a fine at level 6 and to imprisonment for 6 months.
(3) In this section, "excluded person" (豁除人士) means-
(a) any authorized financial institution;
(b) in the case of client collateral of any intermediary, any other intermediary or person with which or whom it is deposited, or to which or whom it is provided, in the circumstances referred to in paragraph (a)(A) or (B) or (b)(A) or (B) (as the case may be) of the definition of "securities collateral" or "other collateral" (as the case may be) in section 1 of Part 1 of Schedule 1;
(c) any company or non-Hong Kong company that is approved under rules made pursuant to section 148(2)(d) as being suitable for the safe custody of client securities and collateral of intermediaries; or (Amended 30 of 2004 s. 3)
(d) any person in Hong Kong that is specified under rules made pursuant to section 149(2)(f) as that with whom segregated accounts established for client money of licensed corporations and designated as trust accounts or client accounts are to be established and maintained.

Section: 165 Heading: Associated entities Version Date: 01/04/2003


(1) An associated entity of an intermediary shall within 7 business days after-
(a) it becomes such an associated entity; or
(b) it ceases to be such an associated entity,
notify the Commission by notice in writing of that fact and such other particulars as are prescribed by rules made under section 397 for the purposes of this section.
(2) Where there is any change in the particulars required to be provided by an associated entity of an intermediary under subsection (1), the associated entity shall within 7 business days thereafter notify the Commission by notice in writing of that fact and provide in the notice particulars of the change.
(3) Where an associated entity of an intermediary, other than an authorized financial institution, receives or holds client assets of the intermediary, the associated entity shall not, unless authorized in writing by the Commission, conduct any business other than that of receiving or holding client assets, whether on behalf of the intermediary or otherwise.
(4) An associated entity of an intermediary which, without reasonable excuse, contravenes subsection (1), (2) or (3) commits an offence and is liable-
(a) on conviction on indictment to a fine of $200000 and to imprisonment for 2 years; or
(b) on summary conviction to a fine at level 6 and to imprisonment for 6 months.
(5) An associated entity of an intermediary which, with intent to defraud, contravenes subsection (1), (2) or (3) commits an offence and 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 of $500000 and to imprisonment for 1 year.
(6) An associated entity of an intermediary which becomes aware that it does not comply with subsection (1), (2) or (3) shall within one business day thereafter notify the Commission by notice in writing of that fact and of the surrounding circumstances.
(7) An associated entity of an intermediary which contravenes subsection (6) commits an offence and is liable-
(a) on conviction on indictment to a fine of $200000 and to imprisonment for 2 years; or
(b) on summary conviction to a fine at level 6 and to imprisonment for 6 months.
(8) An associated entity of an intermediary is not excused from complying with subsection (6) only on the ground that to do so might tend to incriminate it.
(9) Notwithstanding anything in this section, the power of the Commission to make rules for the purposes of this section in respect of associated entities shall, where the associated entities are authorized financial institutions, be regarded as the power to make rules in respect of the associated entities only in relation to particulars relating to their businesses of receiving or holding client assets of intermediaries of which they are associated entities.

Section: 166 Heading: Use of incriminating evidence in proceedings Version Date: 01/04/2003


Notwithstanding any other provisions of this Ordinance, where a person-
(a) is required under section 146(3) to notify the Commission of any matter;
(b) is required under section 165(6) to notify the Commission of any matter; or
(c) is required by rules made pursuant to section 148(2)(i), 149(2)(k), 151(2)(d) or 152(2)(f) to notify the Commission of any matter,
and the notification might tend to incriminate the person, then the notification shall not be admissible in evidence against the person in criminal proceedings in a court of law other than those in which-
(i) he is charged with an offence under Part V of the Crimes Ordinance (Cap 200), or for perjury, in respect of the notification;
(ii) in the case of paragraph (a), he is charged with an offence under section 146(15) in respect of the notification;
(iii) in the case of paragraph (b), he is charged with an offence under section 165(7) in respect of the notification; or
(iv) in the case of paragraph (c), he is charged with an offence under any rules made under section 148(4) or (5), 149(4) or (5), 151(5) or (6), 152(3) or (4) (as the case may be) in respect of a contravention taking place by reason of a failure to comply with the requirement described in paragraph (c) relating to the notification.


条： 164 条文标题： 就收取或持有客户资产方面的限制 版本日期： 14/12/2007


第6分部─杂项规定

(1) 只有以下人士可在香港收取或持有中介人的客户资产─
(a) 该中介人；
(b) 该中介人的有联系实体；或
(c) 豁除人士。
(2) 任何人无合理辩解而违反第(1)款，即属犯罪─
(a) 一经循公诉程序定罪，可处罚款$200000及监禁2年；或
(b) 一经循简易程序定罪，可处第6级罚款及监禁6个月。
(3) 在本条中，“豁除人士”(excluded person)─
(a) 指任何认可财务机构；
(b) 就任何中介人的客户抵押品而言，指符合以下说明的任何其他人或中介人∶在附表1第1部第1条中“证券抵押品”或“其他抵押品”(视属何情况而定)的定义的(a)(A)或(B)或(b)(A)或(B)段(视属何情况而定)提述的情况下，该抵押品须提供予该其他人或中介人或存放于其处；
(c) 指根据在第148(2)(d)条下订立的规则，而获核准为适合负责稳妥保管中介人的客户证券及抵押品的任何公司或非香港公司；或 (由2004年第30号第3条修订)
(d) 指符合以下说明的在香港的人∶根据在第149(2)(f)条下订立的规则指明他为可与之开立和维持指定为信托帐户或客户帐户的、就持牌法团的客户款项而开立的独立帐户的人。

条： 165 条文标题： 有联系实体 版本日期： 01/04/2003


(1) 中介人的有联系实体须─
(a) 在它成为该实体后7个营业日内；或
(b) 在它不再是该实体后7个营业日内，
以书面将此事以及为施行本条而藉根据第397条订立的规则订明的其他详情通知证监会。
(2) 凡中介人的有联系实体根据第(1)款须提供的详情有任何改变，该实体须在该项改变发生后7个营业日内，以书面将此事通知证监会，并在通知内提供该项改变的详情。
(3) 如中介人的有联系实体(属认可财务机构者除外)收取或持有该中介人的客户资产，则除非获证监会书面认可，否则该实体除经营收取或持有客户资产(不论该等资产是否代该中介人收取或持有)的业务外，不得经营任何其他业务。
(4) 任何中介人的有联系实体无合理辩解而违反第(1)、(2)或(3)款，即属犯罪─
(a) 一经循公诉程序定罪，可处罚款$200000及监禁2年；或
(b) 一经循简易程序定罪，可处第6级罚款及监禁6个月。
(5) 任何中介人的有联系实体意图诈骗而违反第(1)、(2)或(3)款，即属犯罪─
(a) 一经循公诉程序定罪，可处罚款$1000000及监禁7年；或
(b) 一经循简易程序定罪，可处罚款$500000及监禁1年。
(6) 中介人的有联系实体如察觉本身没有遵守第(1)、(2)或(3)款，须在随后一个营业日内，以书面将此事以及相关情况通知证监会。
(7) 任何中介人的有联系实体违反第(6)款，即属犯罪─
(a) 一经循公诉程序定罪，可处罚款$200000及监禁2年；或
(b) 一经循简易程序定罪，可处第6级罚款及监禁6个月。
(8) 任何中介人的有联系实体不得仅以遵从第(6)款可能会导致它入罪为理由，而获豁免遵从该款。
(9) 不论本条有任何规定，证监会为施行本条而就中介人的有联系实体订立规则的权力，在该等实体属认可财务机构的情况下，须视为只就该等实体订立与他们收取或持有中介人的客户资产的业务的详情有关的规则的权力。

条： 166 条文标题： 导致入罪的证据在法律程序中的使用 版本日期： 01/04/2003


不论本条例其他条文有任何规定，凡任何人─
(a) 根据第146(3)条须将任何事宜通知证监会；
(b) 根据第165(6)条须将任何事宜通知证监会；或
(c) 根据任何依据第148(2)(i)、149(2)(k)、151(2)(d)或152(2)(f)条订立的规则须将任何事宜通知证监会，
但该通知可能会导致该人入罪，则除非属以下情况，否则该通知不得在法庭进行的刑事法律程序中接纳为针对该人的证据─
(i) 他就该通知而被控犯《刑事罪行条例》(第200章)第V部所订罪行或被控犯作假证供罪；
(ii) 在(a)段所述情况下，他就该通知而被控犯第146(15)条所订罪行；
(iii) 在(b)段所述情况下，他就该通知而被控犯第165(7)条所订罪行；或
(iv) 在(c)段所述情况下，他因没有遵从该段描述的关于通知的规定而导致违例，而他就该项违例被控犯根据第148(4)或(5)、149(4)或(5)、151(5)或(6)、152(3)或(4)条(视属何情况而定)订立的规则所订罪行。

Section: 167 Heading: Interpretation of Part VII Version Date: 01/04/2003


PART VII

BUSINESS CONDUCT, ETC. OF INTERMEDIARIES
Division 1-Interpretation

In this Part, unless the context otherwise requires-
"client contract" (客户合约) means any contract or arrangement between an intermediary and another person, which contains terms on which the intermediary is to provide services the provision of which constitutes a regulated activity;
"representative" (代表)-
(a) in relation to a licensed corporation, means an individual-
(i) who is licensed as a licensed representative for a regulated activity; and
(ii) who carries on that regulated activity for the licensed corporation as a licensed corporation to which he is accredited; or
(b) in relation to a registered institution, means an individual-
(i) whose name is entered in the register maintained by the Monetary Authority under section 20 of the Banking Ordinance (Cap 155) as that of a person engaged by the registered institution in respect of a regulated activity; and
(ii) who carries on that regulated activity for the registered institution.


Section: 168 Heading: Business conduct of intermediaries and their representatives Version Date: 01/04/2003


Division 2-Business conduct

(1) The Commission may make rules requiring intermediaries and their representatives to comply with such practices and standards, relating to the conduct of the intermediaries or the representatives (as the case may be) in carrying on the regulated activities for which the intermediaries are licensed or registered, as are specified in the rules.
(2) Without limiting the generality of subsection (1) and without prejudice to section 398(7) and (8), the Commission may in the rules referred to in subsection (1)-
(a) prohibit the use of misleading or deceptive advertisements by or on behalf of intermediaries, and impose conditions for the use of advertisements by or on behalf of intermediaries;
(b) require specified terms and conditions to be included in client contracts and provide that the terms and conditions are, unless the Commission in relation to any particular term or condition otherwise directs, to be deemed to be of the essence of the client contracts in which they are included, whether or not a different intention appears from the provisions of such client contracts;
(c) require an intermediary to provide to its client, upon entering into a client contract with the client, and thereafter from time to time upon request by the client, specified information concerning the business of the intermediary, and the identity and status of any person acting on behalf of the intermediary and with whom the client may have contact;
(d) require an intermediary, and any representative of an intermediary, to take specified steps to ascertain, in relation to each of the clients of the intermediary, specified matters relating to his identity and his financial situation, investment experience and investment objectives relevant to the services to be provided by the intermediary;
(e) require an intermediary, and any representative of an intermediary, to take specified steps before providing information or advice concerning financial products to any client of the intermediary;
(f) require an intermediary, and any representative of an intermediary, when making any recommendation concerning any financial product to any client of the intermediary, to disclose to the client in the specified manner any interest the intermediary or the representative (as the case may be) may have in the financial product;
(g) require an intermediary, and any representative of an intermediary, to take specified steps to ensure that disclosure is made to any client of the intermediary of financial risks in relation to any financial product the intermediary or the representative (as the case may be) recommends to the client;
(h) require an intermediary, and any representative of an intermediary, to take specified steps to ensure that disclosure is made to any client of the intermediary of any commission or advantage the intermediary or the representative (as the case may be) receives or is to receive from any third party in connection with any financial product the intermediary or the representative (as the case may be) recommends to the client;
(i) require an intermediary, and any representative of an intermediary, not to effect a transaction on behalf of any client of the intermediary in specified circumstances;
(j) prohibit the use by an intermediary, or any representative of an intermediary, of information relating to the affairs of a client of the intermediary, except in specified circumstances and under specified conditions;
(k) require an intermediary, and any representative of an intermediary, to take specified steps in cases of conflict arising between any of their interests and those of a client of the intermediary;
(l) prohibit the receipt by an intermediary of any property or services from another intermediary in consideration of directing business to that other intermediary, except in specified circumstances and under specified conditions;
(m) prohibit the dealing by any representative of an intermediary for his own account in securities or futures contracts, except in specified circumstances and under specified conditions;
(n) require an intermediary, and any representative of an intermediary, to take specified steps to introduce and implement procedures to discourage and identify any money laundering activities;
(o) provide for any other matter relating to the practices and standards relating to conduct in carrying on the regulated activities for which intermediaries are licensed or registered.
(3) Notwithstanding anything in this section, the Commission shall not exercise any of its powers under this section to make rules to specify any terms and conditions for the purposes of any requirement referred to in subsection (2)(b) unless it is satisfied that the specification of the terms and conditions is for the better furtherance of any of its regulatory objectives or the better performance of any of its functions.
(4) Rules made under this section may provide that an intermediary, or a representative of an intermediary, that, without reasonable excuse, contravenes any specified provision of the rules that applies to it or him commits an offence and is liable to a specified penalty not exceeding-
(a) on conviction on indictment a fine of $200000 and a term of imprisonment of 2 years;
(b) on summary conviction a fine at level 6 and a term of imprisonment of 6 months.

Section: 169 Heading: Codes for business conduct of intermediaries and their representatives Version Date: 01/04/2003


(1) Without prejudice to the power of the Commission to make rules under section 168, the Commission may publish, in the Gazette and in any other manner it considers appropriate, codes of conduct for the purpose of giving guidance relating to the practices and standards with which intermediaries and their representatives are ordinarily expected to comply in carrying on the regulated activities for which the intermediaries are licensed or registered.
(2) Without limiting the generality of subsection (1), any code of conduct referred to in that subsection may, in giving guidance referred to in that subsection, refer to obligations to observe-
(a) any other codes or requirements issued or imposed otherwise than by the Commission;
(b) continuing obligations, including any such obligations-
(i) in the case of an intermediary, to provide for the continuous training of its representatives; or
(ii) in the case of a representative of an intermediary, to undergo continuous training;
(c) practices and standards concerning any of the matters described in section 168(2).
(3) The Commission may from time to time amend the whole or any part of any code of conduct published under this section in a manner consistent with the power to publish the code of conduct under this section, and-
(a) the other provisions of this section apply, with necessary modifications, to such amendments to the code as they apply to the code; and
(b) any reference in this or any other Ordinance to the code (however expressed) shall, unless the context otherwise requires, be construed as a reference to the code as so amended.
(4) A failure on the part of an intermediary, or a representative of an intermediary, to comply with the provisions set out in any code of conduct published under this section that apply to it or him shall not by itself render it or him liable to any judicial or other proceedings, but may be taken into account in considering, for the purposes of any provision of this Ordinance-
(a) in the case of an intermediary, whether it is a fit and proper person to be or to remain licensed or registered;
(b) in the case of a representative of an intermediary that is a licensed corporation, whether he is a fit and proper person to be or to remain licensed as a representative; or
(c) in the case of a representative of an intermediary that is a registered institution, whether he is a fit and proper person to be or to remain a person whose name is entered in the register maintained by the Monetary Authority under section 20 of the Banking Ordinance (Cap 155) as that of a person engaged by a registered institution in respect of a regulated activity,
and in any proceedings under this Ordinance before any court the code shall be admissible in evidence, and if any provision set out in the code appears to the court to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.
(5) Any code of conduct published under this section-
(a) may be of general or special application and, without limiting the generality of the foregoing, may be made so as to apply, or so as not to apply-
(i) to a specified extent in relation to any specified person or to members of a specified class of persons;
(ii) in specified circumstances;
(b) may make different provisions for different circumstances and provide for different cases or classes of cases.
(6) Any code of conduct published under this section is not subsidiary legislation.

Section: 170 Heading: Short selling restricted Version Date: 01/04/2003


Division 3-Restriction on short selling, etc.

(1) Subject to subsections (2) and (3), a person shall not sell securities at or through a recognized stock market unless at the time he sells them-
(a) he has or, where he is selling as an agent, his principal has; or
(b) he believes and has reasonable grounds to believe that he has or, where he is selling as an agent, that his principal has,
a presently exercisable and unconditional right to vest the securities in the purchaser of them.
(2) For the purposes of subsection (1)-
(a) a person shall be regarded as selling securities if he-
(i) purports to sell the securities;
(ii) offers to sell the securities;
(iii) holds himself out as being entitled to sell the securities; or
(iv) instructs any representative of an intermediary that carries on Type 1 regulated activity for the intermediary, to sell the securities;
(b) a person who, at a particular time, has a presently exercisable and unconditional right to have securities vested in him or in accordance with his directions shall be regarded as having at that time a presently exercisable and unconditional right to vest the securities in a purchaser of them;
(c) a right of a person to vest securities in a purchaser of them shall not be regarded as not unconditional by reason only of the fact that the securities are charged or pledged in favour of some other person to secure the repayment of money.
(3) Subsection (1) does not apply to-
(a) a person who acts in good faith, believing and having reasonable grounds to believe that he has a right, title, or interest to or in the securities which he sells within the meaning of subsection (1);
(b) a person who, as a representative of an intermediary that carries on Type 1 regulated activity for the intermediary, acts in good faith on behalf of some other person, believing and having reasonable grounds to believe that such other person has a right, title, or interest to or in the securities which he sells within the meaning of subsection (1) on behalf of such other person;
(c) a sale of securities by an exchange participant acting as a principal, when he acts in the course of his business of dealing in odd lots of securities, in accordance with the rules of the recognized exchange company which operates a stock market, being a sale effected solely for the purpose of-
(i) accepting an offer to purchase an odd lot of securities; or
(ii) disposing of an odd lot of securities, by means of the sale of one board lot of those securities;
(d) a sale of securities effected pursuant to a transaction in an options contract traded on a recognized stock market;
(e) a sale of securities falling within a class of transactions prescribed by rules made under section 397 for the purposes of this paragraph.
(4) A person who contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 6 and to imprisonment for 2 years.

Section: 171 Heading: Requirements to confirm short selling order Version Date: 01/04/2003


(1) A person, where he is selling as a principal, shall not convey a short selling order at or through a recognized stock market unless he provides to his agent an assurance, in the form of a document, that-
(a) he has a presently exercisable and unconditional right to vest the securities to which the order relates in the purchaser of them; and
(b) where the short selling order is such order by virtue of paragraph (a)(i) or (v) of the definition of "short selling order" in section 1 of Part 1 of Schedule 1, the counterparty or the other person (as the case may be) referred to in such paragraph has the securities to which the order relates available to lend or deliver to him.
(2) A person to which subsection (1) applies shall provide to his agent such information (if any), in the form of a document and within such time, as is prescribed by rules made under section 397 for the purposes of this subsection.
(3) An exchange participant, where he is selling as a principal, shall not convey a short selling order which is such order by virtue of paragraph (a)(i) or (v) of the definition of "short selling order" in section 1 of Part 1 of Schedule 1 at or through a recognized stock market unless he has received an assurance, in the form of a document, from the counterparty or the other person (as the case may be) referred to in such paragraph that the counterparty or the other person (as the case may be) has the securities to which the order relates available to lend or deliver to him.
(4) An exchange participant to which subsection (3) applies shall collect from the counterparty or the other person referred to in that subsection such information (if any), in the form of a document and within such time, as is prescribed by rules made under section 397 for the purposes of this subsection.
(5) A person, where he is selling as an agent, shall not convey or accept an order to sell securities which is a short selling order at or through a recognized stock market unless he has received from his principal, or the other person for whose benefit or on whose behalf the order is made, an assurance, in the form of a document, that-
(a) his principal or that other person (as the case may be) has a presently exercisable and unconditional right to vest the securities to which the order relates in the purchaser of them; and
(b) where the short selling order is such order by virtue of paragraph (a)(i) or (v) of the definition of "short selling order" in section 1 of Part 1 of Schedule 1, the counterparty or the other person (as the case may be) referred to in such paragraph has the securities to which the order relates available to lend or deliver to him.
(6) A person to which subsection (5) applies shall collect from his principal, or the other person referred to in that subsection, such information (if any), in the form of a document and within such time, as is prescribed by rules made under section 397 for the purposes of this subsection.
(7) For the purposes of subsections (1), (3) and (5), a person who conveys or accepts an order on behalf of his clients or beneficiaries shall be regarded as selling as a principal if-
(a) he has full discretion to sell the securities to which the order relates; and
(b) his conveyance or acceptance is not in accordance with any instruction from his clients or beneficiaries.
(8) An agent or exchange participant who receives or collects an assurance or information by virtue of or under subsection (1), (2), (3), (4), (5) or (6) shall-
(a) subject to paragraph (b), retain the document in which it is contained for not less than one year from the date on which it is received; and
(b) upon request made at any time within that year by the Commission, give the Commission access to the document, and produce to the Commission, within the time and at the place specified by the Commission, the document.
(9) An assurance or information referred to in subsection (1), (2), (3), (4), (5) or (6) shall in any proceedings under this Ordinance before any court be admissible as prima facie evidence of-
(a) in the case of an assurance, the matters specified in subsection (1), (3) or (5) (as the case may be) as that to which the assurance relates; or
(b) in the case of information, the matters (if any) specified in the rules referred to in subsection (2), (4) or (6) (as the case may be) as that to which the information relates.
(10) Subject to subsection (11), a person who contravenes subsection (1), (3) or (5) commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 1 year.
(11) It is a defence to a charge for an offence under subsection (10) for the person charged to prove that when he conveyed or, in the case of a contravention of subsection (5), conveyed or accepted the order concerned, he-
(a) believed and had reasonable grounds to believe that the order was not a short selling order; or
(b) did not know that the order was a short selling order.
(12) A person who, without reasonable excuse, contravenes subsection (2), (4), (6) or (8) commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 1 year.

Section: 172 Heading: Requirements to disclose short sales Version Date: 01/04/2003


(1) An exchange participant or exchange participant's representative who knows or is informed that an order to sell securities is a short selling order shall-
(a) when passing the order to any other person with a view that the other person shall input the order into the trading system of a recognized stock market, inform that other person that the order is a short selling order; and
(b) when inputting the order into the trading system of a recognized stock market, indicate such matters as may be required, under the rules of the recognized exchange company by which the recognized stock market is operated, to show that the order is a short selling order.
(2) Subject to subsection (3), a person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 1 year.
(3) A person shall not be regarded as committing an offence under subsection (2) if he contravenes subsection (1) by reason only of his inadvertence, carelessness or negligence.
(4) In this section, "exchange participant's representative" (交易所参与者代表) means a licensed representative accredited to a licensed corporation that is an exchange participant of a recognized exchange company which operates a recognized stock market.

Section: 173 Heading: Requirements for options trading Version Date: 01/04/2003



Division 4-Other requirements

(1) The Commission may make rules-
(a) prohibiting Type 1 intermediaries from-
(i) transacting in Hong Kong;
(ii) holding themselves out in Hong Kong as being prepared to transact,
except as provided in the rules, any dealing whereby directly or indirectly they confer on any person an option to sell to or purchase from them, or any other person on their behalf, any listed securities;
(b) prohibiting Type 2 intermediaries from-
(i) transacting in Hong Kong;
(ii) holding themselves out in Hong Kong as being prepared to transact,
except as provided in the rules, any dealing whereby directly or indirectly they confer on any person an option to sell to or purchase from them, or any other person on their behalf, any futures contracts traded on a recognized futures market.
(2) Rules made under this section may provide that a Type 1 intermediary, or a Type 2 intermediary, which, without reasonable excuse, contravenes any specified provision of the rules that applies to it commits an offence and is liable to a specified penalty not exceeding-
(a) on conviction on indictment a fine of $200000 and a term of imprisonment of 2 years;
(b) on summary conviction a fine at level 6 and a term of imprisonment of 6 months.
(3) In this section-
"Type 1 intermediary" (第1类中介人) means an intermediary licensed or registered for Type 1 regulated activity;
"Type 2 intermediary" (第2类中介人) means an intermediary licensed or registered for Type 2 regulated activity.

Section: 174 Heading: Certain agreements not to be made during unsolicited calls Version Date: 08/09/2004


(1) Subject to subsections (2) and (3), an intermediary, or a representative of an intermediary, shall not, as principal or agent, during or as a consequence of an unsolicited call made, whether in Hong Kong or elsewhere, by it or him-
(a) make or offer to make with another person-
(i) an agreement for that other person to sell or purchase, or with a view to having that other person sell or purchase, any securities, futures contract or leveraged foreign exchange contract;
(ii) an agreement to provide, or with a view to providing, to that other person securities margin financing; or
(iii) an agreement the purpose or effect, or pretended purpose or effect, of which is to provide, whether conditionally or unconditionally, to that other person a profit, income or other returns-
(A) from any securities, futures contract or leveraged foreign exchange contract; or
(B) calculated by reference to changes in the value of any securities, futures contract or leveraged foreign exchange contract; or
(b) induce or attempt to induce another person to enter into an agreement referred to in paragraph (a),
whether or not in making the unsolicited call it or he does any other act or thing.
(2) An intermediary, or a representative of an intermediary, shall not be regarded as contravening subsection (1) by reason only that it or he-
(a) makes a call on another person who is a solicitor or certified public accountant acting in his professional capacity, or is a licensed person, registered institution, money lender or professional investor, or its or his existing client; and (Amended 23 of 2004 s. 56)
(b) whether as principal or agent, makes or offers to make with that other person an agreement referred to in subsection (1)(a), or induces or attempts to induce that other person to enter into such an agreement.
(3) This section does not apply to-
(a) agreements relating to securities, futures contracts or leveraged foreign exchange contracts or to securities margin financing which are of a class prescribed by rules made under section 397 for the purposes of this paragraph;
(b) calls made by a person who is of a class prescribed by rules made under section 397 for the purposes of this paragraph;
(c) calls made on a person who is of a class prescribed by rules made under section 397 for the purposes of this paragraph;
(d) calls which are of a class prescribed by rules made under section 397 for the purposes of this paragraph.
(4) Without limiting the generality of the powers of the Commission to make rules for the purposes of subsection (3)(d), the Commission may in the rules prescribe that calls made by an authorized financial institution in compliance with such requirements under any guidelines published under section 7(3) of the Banking Ordinance (Cap 155) that apply to it shall be within a class of calls to which this section does not apply.
(5) An intermediary, or a representative of an intermediary, that contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 5.
(6) Where a person on whom an unsolicited call is made enters into an agreement with another person in consequence of a contravention of subsection (1), the person on whom the unsolicited call is so made may, subject to the rights of a subsequent purchaser in good faith for value, rescind the agreement, by giving notice in writing to that effect to that other person, within 28 days after the day on which the agreement is entered into or 7 days after the day on which he becomes aware of the contravention, whichever is the earlier.
(7) In this section-
"call" (造访) means a visit in person, or a communication by any means, whether mechanically, electronically, magnetically, optically, manually or by any other medium, or by way of production or transmission of light, image or sound or any other medium;
"existing client" (原有客户), in relation to an intermediary or a representative of an intermediary, means a person-
(a) who has entered into a client contract with the intermediary at any time during the period of 3 years immediately preceding the day on which the call is made, and remains a party to the client contract when the call is made; or
(b) for whom the intermediary has provided a service, the provision of which constitutes a regulated activity, at any time during the period of 3 years immediately preceding the day on which the call is made;
"futures contract" (期货合约) means-
(a) a futures contract as defined in section 1 of Part 1 of Schedule 1;
(b) a futures contract, or a contract represented as being a futures contract, in respect of an item, whether or not capable of being delivered, which is prescribed by rules made under section 397 for the purposes of this definition;
"money lender" (放债人) has the meaning assigned to it by section 2(1) of the Money Lenders Ordinance (Cap 163);
"unsolicited call" (未获邀约的造访) means any call made otherwise than at the express invitation of the person called upon, and for the purposes of this definition, the provision by a person of his contact details, including an address, telephone or facsimile number, or electronic mail address, does not by itself constitute an express invitation to call that person.

Section: 175 Heading: Requirements for offers by intermediaries or representatives for Type 1, Type 4 or Type 6 regulated activity Version Date: 03/12/2004


(1) Subject to subsection (5), a Type 1 intermediary or representative, a Type 4 intermediary or representative or a Type 6 intermediary or representative shall not communicate an offer to acquire or dispose of any securities of, or issued by, a body unless-
(a) the offer-
(i) is contained in a written document in an official language; or
(ii) if communicated otherwise than in the form of a written document satisfying the requirement of subparagraph (i), is reduced to a written document in an official language and delivered to the person or persons to whom it was made not later than 24 hours after the communication;
(b) the offer-
(i) contains a description of the securities sufficient to enable them to be identified;
(ii) specifies the terms of the offer, including where appropriate the amount of consideration proposed to be paid for the securities to be acquired pursuant to the offer;
(iii) where a dividend has been declared or recommended in respect of the securities, or it is anticipated that a dividend may be so declared or recommended before the transfer of the securities, states whether the securities are to be transferred with or without the dividend;
(iv) specifies-
(A) whether, in the event of a person accepting the offer, the offeror will pay any stamp duty which the person so accepting the offer will become liable to pay in respect of the transaction under the Stamp Duty Ordinance (Cap 117); and
(B) if the offeror will not so pay the stamp duty, the rate of the stamp duty that the person so accepting the offer will become liable to pay in respect of the transaction under that Ordinance;
(v) specifies whether, in the event of a person accepting the offer, any fees will be payable by that person to-
(A) where the Type 1 intermediary or representative, the Type 4 intermediary or representative or the Type 6 intermediary or representative (as the case may be) is regarded as such by virtue of being an intermediary, the Type 1 intermediary or representative, the Type 4 intermediary or representative or the Type 6 intermediary or representative (as the case may be); or
(B) where the Type 1 intermediary or representative, the Type 4 intermediary or representative or the Type 6 intermediary or representative (as the case may be) is regarded as such by virtue of being a representative of an intermediary, the intermediary;
(vi) if contained in a written document referred to in paragraph (a)(i)-
(A) specifies the name and address of the offeror and, where any person is making the offer on behalf of the offeror, the name and address of that person;
(B) bears a date which is not more than 3 days before the date on which the offer is communicated;
(C) where the offer is for the acquisition of securities, satisfies the requirements of Part 1 of Schedule 7;
(D) where the offer is for the disposal of securities, satisfies the requirements of Part 2 of Schedule 7; and
(E) where a report of an expert in connection with the offer is included in or annexed to the offer, contains a statement to the effect that the expert has consented to the inclusion or annexure, and has not, before the communication of the offer, withdrawn that consent; and
(vii) if communicated in the manner described in paragraph (a)(ii), where there is a report of an expert in connection with the offer, specifies the place at which the report is available for inspection, and contains a statement to the effect that the expert has consented to the contents of the report, and has not, before the communication of the offer, withdrawn that consent; and
(c) where the offer is contained in a written document referred to in paragraph (a)(i) or is reduced to a written document referred to in paragraph (a)(ii) but the written document is in only one official language, the written document includes a translation, in the other official language, of all the particulars required in respect of the offer under paragraph (b), except where the Commission has previously agreed that the requirements of this paragraph may be dispensed with in any particular case.
(2) Where an offer contained in a written document referred to in subsection (1)(a)(i) is to contain a statement referred to in subsection (1)(b)(vi)(E) regarding the consent of an expert, the offer shall not be communicated unless the expert has given, and has not before the communication of the offer withdrawn, his consent to the offer being communicated with the inclusion of the statement in the form and context in which it is included in the written document.
(3) Where an offer communicated in the manner described in subsection (1)(a)(ii) is to contain a statement referred to in subsection (1)(b)(vii) regarding the consent of an expert, the offer shall not be communicated unless the expert has given, and has not before the communication of the offer withdrawn, his consent to the offer being communicated with a reference to the statement in the form and context in which it is referred to.
(4) Any Type 1 intermediary or representative, Type 4 intermediary or representative or Type 6 intermediary or representative who communicates an offer to acquire or dispose of any securities without having complied with subsections (1), (2) and (3) commits an offence and is liable on conviction to a fine at level 6 and, in the case of a continuing offence, to a further fine of $20000 for every day during which the offence continues.
(5) This section does not apply to-
(a) an offer regulated by, and made in accordance with, the requirements of-
(i) the rules made under section 23 or 36 governing the listing of securities;
(ii) the code published under section 399(2)(a); or
(iii) Part II of the Companies Ordinance (Cap 32) or, in the case of a corporation incorporated outside Hong Kong, Part XII of that Ordinance;
(aa) an offer-
(i) specified in Part 1 of the Seventeenth Schedule to the Companies Ordinance (Cap 32) as read with the other Parts of that Schedule; and
(ii) specified by the Commission, by notice published in the Gazette, as an offer to which this section does not apply; (Added 30 of 2004 s. 3)
(b) an offer communicated to persons who already hold securities of, or issued by, a body, for those persons to acquire securities of, or issued by, the body;
(c) an offer communicated by a Type 1 intermediary or representative, a Type 4 intermediary or representative or a Type 6 intermediary or representative if the offer is made to a person with whom, or on whose behalf-
(i) where the Type 1 intermediary or representative, the Type 4 intermediary or representative or the Type 6 intermediary or representative (as the case may be) is regarded as such by virtue of being an intermediary, the Type 1 intermediary or representative, the Type 4 intermediary or representative or the Type 6 intermediary or representative (as the case may be); or
(ii) where the Type 1 intermediary or representative, the Type 4 intermediary or representative or the Type 6 intermediary or representative (as the case may be) is regarded as such by virtue of being a representative of an intermediary, the intermediary,
has transacted the sale or purchase of securities on at least 3 occasions during the period of 3 years immediately preceding the date of the offer;
(d) an offer made to-
(i) a professional investor;
(ii) a solicitor or certified public accountant acting in his professional capacity; or (Amended 23 of 2004 s. 56)
(iii) any other person who is of a class prescribed by rules made under section 397 for the purposes of this paragraph;
(e) an offer communicated by an exchange participant in the ordinary course of trading on a recognized stock market;
(f) an offer communicated by a person who is of a class prescribed by rules made under section 397 for the purposes of this paragraph;
(g) an offer which is of a class prescribed by rules made under section 397 for the purposes of this paragraph.
(6) Where-
(a) a person has accepted an offer to acquire or dispose of any securities of, or issued by, a body which is an offer to which this section applies; and
(b) the offer has been communicated without subsections (1), (2) and (3) having been complied with in a material particular,
that person may, subject to the rights of a subsequent purchaser of the securities in good faith for value, rescind the acceptance, by giving notice in writing to that effect to the offeror, within 28 days after the date of acceptance or 7 days after the day on which he becomes aware of the matter described in paragraph (b), whichever is the earlier.
(7) For the purposes of this section-
(a) where a Type 1 intermediary or representative, a Type 4 intermediary or representative or a Type 6 intermediary or representative communicates an invitation to a person to acquire or dispose of any securities of, or issued by, a body, the invitation shall be deemed to be an offer, and a reference in this section to acceptance shall be construed accordingly;
(b) an offer to acquire or dispose of a right to acquire or dispose of securities or an interest in securities shall be deemed to be an offer to acquire or dispose of securities, and a reference in this section to a person who holds securities includes a person who holds a right to acquire securities or an interest in securities;
(c) an offer to acquire or dispose of securities in consideration or part consideration for other securities shall be deemed to be both an offer to acquire and an offer to dispose of securities.
(8) In this section, a reference to securities of a body shall, unless the context otherwise requires, be construed as a reference to securities (having the meaning under section 1 of Part 1 of Schedule 1) which are-
(a) issued, made available or granted by the body; or
(b) proposed to be issued, made available or granted by the body.
(8A) A notice published under subsection (5)(aa)(ii) is not subsidiary legislation. (Added 30 of 2004 s. 3)
(9) In this section-
"body" (团体) means a corporation, a multilateral agency, or a government or municipal government authority;
"expert" (专家) includes an engineer, valuer, certified public accountant, solicitor, and any other person whose profession gives authority to a statement made by him; (Amended 23 of 2004 s. 56)
"Type 1 intermediary or representative" (第1类中介人或代表) means-
(a) an intermediary licensed or registered for Type 1 regulated activity; or
(b) its representative that carries on Type 1 regulated activity for it;
"Type 4 intermediary or representative" (第4类中介人或代表) means-
(a) an intermediary licensed or registered for Type 4 regulated activity; or
(b) its representative that carries on Type 4 regulated activity for it;
"Type 6 intermediary or representative" (第6类中介人或代表) means-
(a) an intermediary licensed or registered for Type 6 regulated activity; or
(b) its representative that carries on Type 6 regulated activity for it;
"written document" (书面文件) means any document or similar material, or any other medium (whether effected as such mechanically, electronically, magnetically, optically, manually or by any other means), by which words are represented in a visible form.


Section: 176 Heading: Certain representations prohibited Version Date: 01/04/2003


(1) Subject to subsection (2), an intermediary, or a representative of an intermediary, shall not represent, or permit any other person to represent, in any manner and whether expressly or by implication, that its or his abilities or qualifications have been endorsed or warranted by the Government or the Commission.
(2) A statement to the effect that a person is licensed or registered under this Ordinance does not by itself constitute a contravention of subsection (1).
(3) An intermediary, or a representative of an intermediary, that, without reasonable excuse, contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 5.

Section: 177 Heading: Amendment of Schedule 7 Version Date: 01/04/2003


Division 5-Miscellaneous

The Chief Executive in Council may, by order published in the Gazette, amend Schedule 7.

第VII部

中介人的业务操守等

条： 167 条文标题： 第VII部的释义 版本日期： 01/04/2003



第1分部─释义

在本部中，除文意另有所指外─
“代表”(representative)─
(a) 就持牌法团而言，指符合以下说明的个人─
(i) 就某类受规管活动获发牌为持牌代表；及
(ii) 以隶属该法团的身分为该法团进行该类活动的；或
(b) 就注册机构而言，指符合以下说明的个人─
(i) 名列于金融管理专员根据《银行业条例》(第155章)第20条备存的纪录册并显示为受该机构就某类受规管活动聘用的；及
(ii) 为该机构进行该类活动的；
“客户合约”(client contract) 指中介人与他人之间的任何合约或安排，而该中介人须根据该合约或安排的条款提供构成受规管活动的服务。

条： 168 条文标题： 中介人及其代表的业务操守 版本日期： 01/04/2003


第2分部─业务操守

(1) 证监会可订立规则，规定中介人及其代表在进行该中介人获发牌或获注册进行的受规管活动时，须遵守规则所指明的关乎该中介人或该代表(视属何情况而定)在进行该等活动方面的行为操守的常规和标准。
(2) 在不局限第(1)款的一般性及不损害第398(7)及(8)条的原则下，证监会可在第(1)款提述的规则中─
(a) 禁止中介人或他人代中介人使用具误导性或欺骗性的广告；并在中介人或他人代中介人使用广告方面施加条件；
(b) 规定客户合约须包括指明的条款及条件，而除非证监会就任何个别条款或条件另有指示，否则该等条款及条件须视为有关合约的要素，而不论有关合约的条文是否显露不同的意图；
(c) 规定中介人在与客户订立客户合约时，及在其后不时在该客户的要求下，须向该客户提供指明的、关乎该中介人的业务及代该中介人行事而该客户可联络的人的身分及地位的资料；
(d) 规定中介人及其任何代表须采取指明的步骤，以确知指明的、关乎该中介人的每一位客户的身分、财务状况，以及与该中介人提供的服务有关的投资经验和目标的事宜；
(e) 规定中介人及其任何代表在向该中介人的任何客户提供有关金融产品的资料或意见之前须采取指明的步骤；
(f) 规定中介人及其任何代表在向该中介人的任何客户作出任何关于金融产品的建议时，须以指明的方式向该客户披露该中介人或该代表(视属何情况而定)在该产品中的任何利害关系；
(g) 规定中介人及其任何代表须采取指明的步骤，以确保他向该中介人的客户披露他所推荐的金融产品所涉及的财务风险；
(h) 规定中介人及其任何代表须采取指明的步骤，以确保他向该中介人的客户披露他就所推荐的金融产品而从第三者或将从第三者收取的佣金或利益；
(i) 规定在指明情况下，中介人及其任何代表不得代该中介人的客户进行交易；
(j) 禁止中介人或其任何代表在指明情况以外的情况下，或在不符合指明条件的情况下，使用关乎该中介人任何客户的事务的资料；
(k) 规定中介人及其任何代表在其本身的利益与该中介人的客户的利益出现冲突的情况下须采取指明的步骤；
(l) 禁止中介人在指明情况以外的情况下，或在不符合指明条件的情况下，向另一中介人收取财物或获取服务，以作为将业务转介予该另一中介人的代价；
(m) 禁止任何中介人的代表在指明情况以外的情况下，或在不符合指明条件的情况下，为自己进行证券或期货合约交易；
(n) 规定中介人及其任何代表须采取指明的步骤，以推行及实施遏阻及识辨洗钱活动的程序；
(o) 就与常规和标准有关的其他事宜作出规定，而该等常规和标准是关乎在进行中介人获发牌或获注册进行的受规管活动方面的操守的。
(3) 不论本条有任何规定，证监会不得行使本条赋予的订立规则的权力，以就第(2)(b)款提述的规定指明任何条款及条件，除非该会信纳指明该等条款及条件是为了更佳地达致该会的任何规管目标或更佳地执行其任何职能。
(4) 根据本条订立的规则可规定，任何中介人或其代表无合理辩解而违反该等规则中适用于他的任何指明条文，即属犯罪─
(a) 一经循公诉程序定罪，可处不超过罚款$200000及监禁2年的指明罚则；
(b) 一经循简易程序定罪，可处不超过第6级罚款及监禁6个月的指明罚则。

条： 169 条文标题： 中介人及其代表的业务操守守则 版本日期： 01/04/2003


(1) 在不损害证监会根据第168条订立规则的权力的原则下，该会可在宪报刊登及以该会认为适当的任何其他方式发表操守守则，就在通常情况下期望中介人及其代表在进行该中介人获发牌或获注册进行的受规管活动方面须遵守的常规和标准，作出指引。
(2) 在不局限第(1)款的一般性的原则下，第(1)款提述的任何操守守则在作出该款提述的指引时，可提述─
(a) 遵守并非由证监会发出或施加的任何其他守则或规定的义务；
(b) 履行持续义务(包括以下的义务)的义务─
(i) (就中介人而言)向中介人的代表提供持续训练的义务；或
(ii) (就中介人的代表而言)接受持续训练的义务；
(c) 遵守关乎第168(2)条所述任何事宜的常规和标准的义务。
(3) 证监会可不时以符合该会根据本条刊登及发表操守守则的权力的方式，修订该守则的全部或任何部分，而─
(a) 本条其他条文在作出必要的变通后，适用于该等修订，犹如它们适用于该守则一样；及
(b) 除非文意另有所指，否则在本条例或其他条例中对该守则(不论实际如何称述)的提述，须解释为对经如此修订的该守则的提述。
(4) 任何中介人或其代表如没有遵守根据本条刊登及发表并适用于他的任何操守守则所列条文，并不会仅因此而令他在任何司法或其他法律程序中被起诉，但在为施行本条例任何条文而考虑以下事项时，可顾及上述事实─
(a) (就中介人而言)该中介人是否获发牌或获注册或继续持牌或获注册的适当人选；
(b) (就属持牌法团的中介人的代表而言)该代表是否获发牌或继续持牌的适当人选；或
(c) (就属注册机构的中介人的代表而言)该代表是否名列于或继续名列于金融管理专员根据《银行业条例》(第155章)第20条备存的纪录册并显示为受该机构就某类受规管活动聘用的适当人选，
而在根据本条例于任何法庭进行的法律程序中，该守则须获接纳为证据；如法庭觉得该守则的任何条文与法律程序中产生的任何问题有关，则在裁定该问题时须考虑该条文。
(5) 根据本条刊登及发表的任何操守守则可─
(a) 在一般或特别情况下适用，而在不局限前文的一般性的原则下，该守则亦可─
(i) 在指明的范围内适用于或不适用于任何指明人士或属某指明类别的人；
(ii) 在某些指明情况下适用或不适用；
(b) 就不同情况订定不同条文，亦可就不同个案或不同类别的个案订定不同条文。
(6) 根据本条刊登及发表的操守守则不是附属法例。

条： 170 条文标题： 限制卖空 版本日期： 01/04/2003


第3分部─对卖空的限制等

(1) 在第(2)及(3)款的规限下，除非任何人在认可证券市场或透过认可证券市场售卖证券时─
(a) 具有或(如他以代理人身分售卖)他的当事人具有；或
(b) 他相信并有合理理由相信他具有或(如他以代理人身分售卖)他的当事人具有，
一项即时可行使而不附有条件的权利，以将该等证券转归于其购买人名下，否则不得如此售卖该等证券。
(2) 就第(1)款而言─
(a) 任何人如─
(i) 其本意是售卖证券；
(ii) 提出售卖证券的要约；
(iii) 显示自己有权售卖证券；或
(iv) 指示任何为中介人进行第1类受规管活动的中介人代表售卖证券，
则他须被视为售卖该等证券；
(b) 任何人如在某特定时间具有一项即时可行使而不附有条件的权利，以将证券转归于他名下或按照他的指示而转归他人名下，则他须被视为在该时间具有一项即时可行使而不附有条件的权利，以将该等证券转归于其购买人名下；
(c) 任何人将证券转归其购买人名下的权利，不得仅因该等证券被押记或质押予其他人以作为还款的保证，而被视为是附有条件的。
(3) 第(1)款不适用于─
(a) 秉诚行事的人，而他相信并有合理理由相信在他作出第(1)款所指的售卖证券的作为时，他对该等证券或在该等证券中是具有权利、所有权或权益的；
(b) 以中介人代表身分为该中介人进行第1类受规管活动的人，以该身分秉诚代其他人行事，而他相信并有合理理由相信在他代该其他人作出第(1)款所指的售卖证券的作为时，该其他人对该等证券或在该等证券中是具有权利、所有权或权益的；
(c) 在交易所参与者按照营办某证券市场的认可交易所的规则经营其证券碎股交易业务的过程中，他以当事人身分作出的证券售卖，而该项售卖纯粹是为以下目的而作出的─
(i) 接受购买证券碎股的要约；或
(ii) 以售卖一个交易单位的证券的方法，将证券碎股处置；
(d) 依据一项期权合约的交易而作出的证券售卖，而该项合约是在认可证券市场进行买卖的；
(e) 属于为施行本段而藉根据第397条订立的规则订明的交易类别的证券售卖。
(4) 任何人违反第(1)款，即属犯罪，一经定罪，可处第6级罚款及监禁2年。
条： 171 条文标题： 确认卖空指示的规定 版本日期： 01/04/2003


(1) 凡任何人以当事人身分售卖证券，他不得在认可证券市场或透过认可证券市场传达任何卖空指示，除非他以文件形式向他的代理人提供一项对以下事项的保证─
(a) 他具有一项即时可行使而不附有条件的权利，以将该指示所关乎的证券转归于其购买人名下；及
(b) 如该指示是凭借在附表1第1部第1条中的“卖空指示”的定义中的(a)(i)或(v)段而构成一项卖空指示的话，该段所提述的对手方或另一人(视属何情况而定)备有该指示所关乎的证券可供借给或交付给他。
(2) 第(1)款所适用的人须在为施行本款而藉根据第397条订立的规则订明的时间内，以文件形式向他的代理人提供如此订明的资料(如有的话)。
(3) 任何以当事人身分售卖证券的交易所参与者，不得在认可证券市场或透过认可证券市场传达任何凭借在附表1第1部第1条中的“卖空指示”的定义中的(a)(i)或(v)段而构成一项卖空指示的指示，除非他已从该段所提述的对手方或另一人(视属何情况而定)收到一项以文件形式提供的保证，表示该对手方或该另一人备有该指示所关乎的证券可供借给或交付给他。
(4) 第(3)款所适用的交易所参与者须在为施行本款而藉根据第397条订立的规则订明的时间内，从该款所提述的对手方或另一人收取以文件形式提供的如此订明的资料(如有的话)。
(5) 任何以代理人身分售卖证券的人，不得在认可证券市场或透过认可证券市场传达或接受任何属卖空指示的指示，除非他已从他的当事人或(如该指示是为其他人的利益作出或代其他人作出)该其他人，收到一项以文件形式提供的对以下事项的保证─
(a) 该当事人或该其他人(视属何情况而定)具有一项即时可行使而不附有条件的权利，以将该指示所关乎的证券转归其购买人名下；及
(b) 如该指示是凭借在附表1第1部第1条中的“卖空指示”的定义中的(a)(i)或(v)段而构成一项卖空指示的话，该段所提述的对手方或另一人(视属何情况而定)备有该指示所关乎的证券可供借给或交付给他。
(6) 第(5)款所适用的人须在为施行本款而藉根据第397条订立的规则订明的时间内，从他的当事人或该款所提述的其他人收取以文件形式提供的如此订明的资料(如有的话)。
(7) 就第(1)、(3)及(5)款而言，如有以下情况，则任何代客户或受益人传达或接受指示的人须视为以当事人身分售卖证券─
(a) 他有完全酌情决定权售卖该指示所关乎的证券；及
(b) 他并非按照其客户或受益人的任何指示而作出上述的传达或接受。
(8) 任何凭借或根据第(1)、(2)、(3)、(4)、(5)或(6)款而收到或收取任何保证或资料的代理人或交易所参与者─
(a) 在不抵触(b)段的条文下，须于自他收到载有该保证或资料的文件当日起计1年内，保留该文件；及
(b) 须在证监会于该年内任何时间作出要求时，让该会有途径取得该文件，及在该会指明的时间内在该会指明的地点向该会交出该文件。
(9) 在根据本条例于任何法庭进行的法律程序中，第(1)、(2)、(3)、(4)、(5)或(6)款提述的保证或资料须获接纳为以下事项的表面证据─
(a) 就任何保证而言，第(1)、(3)或(5)款(视属何情况而定)中指明的该保证所关乎的事项；或
(b) 就任何资料而言，第(2)、(4)或(6)款(视属何情况而定)提述的规则中指明的该资料所关乎的事项(如有的话)。
(10) 在不抵触第(11)款的规定下，任何人违反第(1)、(3)或(5)款，即属犯罪，一经定罪，可处第5级罚款及监禁1年。
(11) 被控犯第(10)款所订罪行的人如证明当他传达，或就违反第(5)款而言，当他传达或接受有关指示时，他─
(a) 相信并有合理理由相信该指示并非一项卖空指示；或
(b) 并不知道该指示属一项卖空指示，
则可以此作为免责辩护。
(12) 任何人无合理辩解而违反第(2)、(4)、(6)或(8)款，即属犯罪，一经定罪，可处第5级罚款及监禁1年。

条： 172 条文标题： 披露卖空的规定 版本日期： 01/04/2003


(1) 任何交易所参与者或交易所参与者代表如知道或获告知某项售卖证券的指示属一项卖空指示，则─
(a) 当他将该指示传达任何其他人，以使该人将该指示输入某认可证券市场的交易系统时，他须告知该人该指示属一项卖空指示；及
(b) 当他将该指示输入某认可证券市场的交易系统时，他须注明营办该市场的认可交易所的规章所规定的、用以显示该指示属一项卖空指示的事项。
(2) 除第(3)款另有规定外，任何人无合理辩解而违反第(1)款，即属犯罪，一经定罪，可处第5级罚款及监禁1年。
(3) 任何人如仅因他的粗心大意、不小心或疏忽而违反第(1)款，则他不得视为犯第(2)款所订罪行。
(4) 在本条中，“交易所参与者代表”(exchange participant's representative) 指隶属某持牌法团的持牌代表，而该法团是营办某认可证券市场的认可交易所的交易所参与者。

条： 173 条文标题： 期权买卖的规定 版本日期： 01/04/2003


第4分部─其他规定

(1) 证监会可订立规则─
(a) 禁止第1类中介人在该等规则所规定的情况以外的情况下─
(i) 在香港进行交易；
(ii) 在香港显示自己准备进行交易，
而交易的内容是直接或间接赋予任何人一项期权，以使该人可向该中介人售卖或购买，或向代该中介人行事的人售卖或购买任何上市证券；
(b) 禁止第2类中介人在该等规则所规定的情况以外的情况下─
(i) 在香港进行交易；
(ii) 在香港显示自己准备进行交易，
而交易的内容是直接或间接赋予任何人一项期权，以使该人可向该中介人售卖或购买，或向代该中介人行事的人出售或购买任何在认可期货市场买卖的期货合约。
(2) 根据本条订立的规则可规定，任何第1类中介人或第2类中介人无合理辩解而违反该等规则中适用于他的任何指明条文，即属犯罪─
(a) 一经循公诉程序定罪，可处不超过罚款$200000及监禁2年的指明罚则；
(b) 一经循简易程序定罪，可处不超过第6级罚款及监禁6个月的指明罚则。
(3) 在本条中─
“第1类中介人”(Type 1 intermediary) 指就第1类受规管活动获发牌或获注册的中介人；
“第2类中介人”(Type 2 intermediary) 指就第2类受规管活动获发牌或获注册的中介人。

条： 174 条文标题： 进行未获邀约的造访时不得订立某些协议 版本日期： 08/09/2004



(1) 除第(2)及(3)款另有规定外，任何中介人或其代表不得在(不论是在香港或在其他地方)进行未获邀约的造访时或继进行未获邀约的造访后，以主事人或代理人身分作出以下作为─
(a) 与另一人订立或要约与另一人订立符合以下说明的协议─
(i) 协议的内容或目的是该另一人售卖或购买任何证券、期货合约或杠杆式外汇交易合约；
(ii) 协议的内容或目的是向该另一人提供证券保证金融资；或
(iii) 协议的目的或作用，或佯称的目的或作用是向该另一人提供(不论是否附有条件)─
(A) 从证券、期货合约或杠杆式外汇交易合约中取得的利润、收益或其他回报；或
(B) 藉参照任何证券、期货合约或杠杆式外汇交易合约的价值的变动而计算的利润、收益或其他回报；或
(b) 诱使或企图诱使另一人订立(a)段提述的协议，
不论他在进行该造访时，有没有作出任何其他作为或事情。
(2) 任何中介人或其代表不得仅因以下理由而视为违反第(1)款─
(a) 他造访另一人，而该另一人是以其专业身分行事的律师或会计师，或是持牌人、注册机构、放债人、专业投资者或是他的原有客户；及 (由2004年第23号第56条修订)
(b) (不论以主事人或代理人身分)与该另一人订立或要约与该另一人订立第(1)(a)款提述的协议，或诱使或企图诱使该另一人订立该协议。
(3) 本条不适用于─
(a) 关乎属于为施行本段而藉根据第397条订立的规则订明的类别的证券、期货合约、杠杆式外汇交易合约或证券保证金融资的协议；
(b) 由属于为施行本段而藉根据第397条订立的规则订明的类别的人作出的造访；
(c) 向属于为施行本段而藉根据第397条订立的规则订明的类别的人作出的造访；
(d) 属于为施行本段而藉根据第397条订立的规则订明的类别的造访。
(4) 在不局限证监会为施行第(3)(d)款而订立规则的权力的一般性的原则下，该会可在该等规则中订明认可财务机构遵从根据《银行业条例》(第155章)第7(3)条刊登的、并适用于它的任何指引的规定而进行的造访，属本条并不适用的类别的造访。
(5) 任何中介人或其代表违反第(1)款，即属犯罪，一经定罪，可处第5级罚款。
(6) 如任何属未获邀约的造访对象的人在第(1)款遭违反的情况下与另一人订立协议，则被如此造访的该人可在不抵触其后付出有值代价的真诚购买人的权利下，在订立该协议当日后28日内或在他察觉该项违反当日后7日内(两者以较早者为准)，藉向该另一人发出书面通知而撤销该协议。
(7) 在本条中─
“未获邀约的造访”(unsolicited call) 指并非应被造访的人的明示邀请而作出的造访，而就本定义而言，该人不得仅因提供其联络办法资料，包括地址、电话号码、传真号码或电子邮件地址，而属明示邀请对他作出造访；
“放债人”(money lender) 具有《放债人条例》(第163章)第2(1)条给予该词的涵义；
“原有客户”(existing client) 就任何中介人或其代表而言，指符合以下说明的人─
(a) 在紧接进行有关造访当日前的3年期间内的任何时间，他已和该中介人订立客户合约，而在进行有关造访时，他仍然是该合约的一方的人；或
(b) 在紧接进行有关造访当日前的3年期间内的任何时间，获该中介人提供构成受规管活动的服务的人；
“造访”(call) 指亲身探访，或以任何方式作出通讯，不论是以机械、电子、磁力、光学、人手或其他媒介，或藉光、影像或声音或其他媒介的产生或传送作出的；
“期货合约”(futures contract) 指─
(a) 附表1第1部第1条界定的期货合约；
(b) 就某项目订立的期货合约或表述为属期货合约的合约，而该项目是由为本定义的目的而藉根据第397条订立的规则订明的，不论该项目是否能够予以交付。
条： 175 条文标题： 就由进行第1、4或6类受规管活动的中介人或代表提出的要约的规定 版本日期： 03/12/2004



(1) 除第(5)款另有规定外，除非符合以下条件，否则第1类中介人或代表、第4类中介人或代表或第6类中介人或代表不得传达为取得或处置某团体的或由某团体发行的证券而提出的要约─
(a) 该要约─
(i) 载于一份以一种法定语文写成的书面文件中；或
(ii) 以符合第(i)节规定的书面文件以外的形式传达，并在传达后24小时内，转为一份以一种法定语文写成的书面文件并交付受要约的人；
(b) 该要约─
(i) 载有足以识辨该等证券的描述；
(ii) 指明要约的条款(如适用的话，包括建议须就依据该要约取得的证券而支付的代价的款额)；
(iii) (在已就该等证券宣布或建议派发股息，或预期在该等证券转让之前可能会就该等证券宣布或建议派发股息的情况下)述明该等证券在转让时是否附连该等股息；
(iv) 指明─
(A) 如任何人接受该要约，该人就该宗交易而根据《印花税条例》(第117章)有法律责任缴付的印花税，会否由要约人缴付；及
(B) 如要约人不会缴付该等印花税的话，则接受该要约的人将会就该宗交易而根据该条例有法律责任缴付的印花税的税率；
(v) 指明如任何人接受该要约，该人是否须向以下的人支付任何费用─
(A) (如该第1类中介人或代表、第4类中介人或代表或第6类中介人或代表(视属何情况而定)凭借作为中介人而被视为第1类中介人或代表、第4类中介人或代表或第6类中介人或代表(视属何情况而定))该第1类中介人或代表、第4类中介人或代表或第6类中介人或代表(视属何情况而定)；或
(B) (如该第1类中介人或代表、第4类中介人或代表或第6类中介人或代表(视属何情况而定)凭借作为某中介人的代表而被视为第1类中介人或代表、第4类中介人或代表或第6类中介人或代表(视属何情况而定))该中介人；
(vi) 如载于(a)(i)段提述的书面文件中，则─
(A) 指明要约人的姓名或名称及地址，如任何人代要约人发出要约，则一并指明该人的姓名或名称及地址；
(B) 载有一个不早于传达该要约日期前3日的日期；
(C) (如该要约是为取得证券)符合附表7第1部的规定；
(D) (如该要约是为处置证券)符合附表7第2部的规定；及
(E) (如该要约载列或附加一份与该要约有关连的专家报告)载有一项陈述，其意是该专家已同意该要约载列或附加该报告，并且没有在该要约传达前撤回该同意；及
(vii) 如以(a)(ii)段描述的方式传达，而有一份专家报告与该要约有关连，则指明可在何处查阅该报告，并包含一项陈述，其意是该专家已同意该报告的内容，并且没有在该要约传达前撤回该同意；及
(c) (如该要约载于(a)(i)段提述的书面文件中或转为(a)(ii)段提述的书面文件，但该书面文件只以一种法定语文写成)该书面文件附有另一种法定语文的译本，而该译本载有(b)段就该要约规定的一切详情，但如证监会先前已就个别个案同意可免除本段的规定，则该个案属例外。
(2) 凡载于第(1)(a)(i)款提述的书面文件的要约须载有第(1)(b)(vi)(E)款提述的关于某专家的同意的陈述，该要约不得在以下条件不获符合的情况下传达：该专家已同意该要约在该陈述按它载列的形式及文意载列于该书面文件的情况下传达，并且没有在该要约传达前撤回其同意。
(3) 凡以第(1)(a)(ii)款描述的方式传达的要约须包含第(1)(b)(vii)款提述的关于某专家的同意的陈述，该要约不得在以下条件不获符合的情况下传达∶该专家已同意该要约在该要约按它提述该陈述的形式及文意提述该陈述的情况下传达，并且没有在该要约传达前撤回其同意。
(4) 任何第1类中介人或代表、第4类中介人或代表或第6类中介人或代表在没有遵守第(1)、(2)及(3)款的情况下，传达为取得或处置证券而提出的要约，即属犯罪，一经定罪，可处第6级罚款，如属持续的罪行，则可就罪行持续期间的每一日，另处罚款$20000。
(5) 本条不适用于─
(a) 受以下规定规管或按照以下规定提出的要约─
(i) 根据第23或36条就管限证券上市而订立的规章或规则的规定；
(ii) 根据第399(2)(a)条刊登或发表的守则的规定；或
(iii) 《公司条例》(第32章)第II部或(就在香港以外地方成立的法团而言)该条例第XII部的规定；
(aa) 符合以下说明的要约─
(i) 与《公司条例》(第32章)附表17各部(第1部除外)一并理解的该附表第1部指明的要约；及
(ii) 由证监会藉于宪报刊登的公告指明为本条不适用的要约； (由2004年第30号第3条增补)
(b) 向已经持有某团体的或由某团体发出的证券的人传达，让该人取得该团体的或由该团体发出的证券的要约；
(c) 某第1类中介人或代表、第4类中介人或代表或第6类中介人或代表向某人传达的要约，但不适用的前提是在紧接该要约的日期之前的3年内─
(i) (如该第1类中介人或代表、第4类中介人或代表或第6类中介人或代表(视属何情况而定)凭借作为中介人而被视为第1类中介人或代表、第4类中介人或代表或第6类中介人或代表(视属何情况而定))该第1类中介人或代表、第4类中介人或代表或第6类中介人或代表(视属何情况而定)；或
(ii) (如该第1类中介人或代表、第4类中介人或代表或第6类中介人或代表(视属何情况而定)凭借作为某中介人的代表而被视为第1类中介人或代表、第4类中介人或代表或第6类中介人或代表(视属何情况而定))该中介人，
须已经与该人或代该人进行过至少3次证券售卖或购买的交易；
(d) 向以下人士提出的要约─
(i) 专业投资者；
(ii) 以其专业身分行事的律师或会计师；或 (由2004年第23号第56条修订)
(iii) 属于为施行本段而藉根据第397条订立的规则订明的类别的其他人；
(e) 由交易所参与者在认可证券市场的日常交易过程中传达的要约；
(f) 由属于为施行本段而藉根据第397条订立的规则订明的类别的人传达的要约；
(g) 属于为施行本段而藉根据第397条订立的规则订明的类别的要约。
(6) 凡─
(a) 任何人已接受为取得或处置某团体的或由某团体发行的证券而提出的要约，而本条适用于该要约；及
(b) 该要约的传达在要项上是没有遵守第(1)、(2)及(3)款的，
则该人可在不抵触其后为该等证券付出有值代价的真诚购买人的权利下，在该人接受该要约当日后28日内或在该人察觉(b)段提述的事宜当日后7日内(两者以较早者为准)，藉向提出该要约的人发出书面通知而撤销该项承约。
(7) 就本条而言─
(a) 凡第1类中介人或代表、第4类中介人或代表或第6类中介人或代表向某人传达取得或处置某团体的或由某团体发行的证券的邀请，该项邀请即当作为要约，而在本条中凡提述承约之处，须据此解释；
(b) 凡有一项取得或处置证券或证券权益的权利，任何为取得或处置该项权利而提出的要约，即当作为一项为取得或处置证券而提出的要约；而在本条中凡提述持有证券的人，即包括持有取得证券或证券权益的权利的人；
(c) 用其他证券作为代价或部分代价以取得或处置证券的要约，即当作为既是为取得证券亦是为处置证券而提出的要约。
(8) 在本条中，除文意另有所指外，凡提述某团体的证券，须解释为提述附表1第1部第1条界定并符合以下说明的证券─
(a) 由该团体发行、提供或批给；或
(b) 拟由该团体发行、提供或批给。
(8A) 根据第(5)(aa)(ii)款刊登的公告不是附属法例。 (由2004年第30号第3条增补)
(9) 在本条中─
“书面文件”(written document) 指任何藉可见形式表达文字的文件、与文件相类似的物料或任何其他媒介(不论该文件、物料或媒介是藉机械、电子、磁力、光学、人手或其他方式产生的)；
“第1类中介人或代表”(Type 1 intermediary or representative) 指─
(a) 就第1类受规管活动获发牌或获注册的中介人；或
(b) 为该中介人进行第1类受规管活动的该中介人的代表；
“第4类中介人或代表”(Type 4 intermediary or representative) 指─
(a) 就第4类受规管活动获发牌或获注册的中介人；或
(b) 为该中介人进行第4类受规管活动的该中介人的代表；
“第6类中介人或代表”(Type 6 intermediary or representative) 指─
(a) 就第6类受规管活动获发牌或获注册的中介人；或
(b) 为该中介人进行第6类受规管活动的该中介人的代表；
“专家”(expert) 包括工程师、估值师、会计师、律师，以及其所从事的专业令其所作的陈述具有权威性的任何其他人； (由2004年第23号第56条修订)
“团体”(body) 指法团、多边机构，或某政府或市政府当局。

条： 176 条文标题： 禁止作出某些表述 版本日期： 01/04/2003



(1) 除第(2)款另有规定外，任何中介人或其代表均不得以任何方式(不论是明示或隐含的方式)作出他的能力或资格已获政府或证监会认可或保证的表述，亦不得准许任何其他人以上述方式作出该等表述。
(2) 任何人不得仅因表示某人获根据本条例发牌或注册的陈述而属违反第(1)款。
(3) 任何中介人或其代表无合理辩解而违反第(1)款，即属犯罪，一经定罪，可处第5级罚款。

条： 177 条文标题： 修订附表7 版本日期： 01/04/2003



第5分部─杂项条文

行政长官会同行政会议可藉在宪报刊登的命令修订附表7。

Section: 178 Heading: Interpretation of Part VIII Version Date: 01/04/2003


PART VIII

SUPERVISION AND INVESTIGATIONS

Division 1-Interpretation


In this Part, unless the context otherwise requires-
"audit working papers" (审计工作材料) means-
(a) any record or document prepared by or on behalf of an auditor; and
(b) any record or document obtained and retained by or on behalf of an auditor,
for or in connection with the performance of any of his functions relating to the conduct of any audit of the accounts of a corporation;
"investigator" (调查员) means a person directed or appointed to investigate any matter under section 182(1);
"person under investigation" (受调查人) means a person in relation to whom any investigator is directed or appointed to investigate any matter under section 182(1).

Section: 179 Heading: Power to require production of records and documents concerning listed corporations, etc. Version Date: 01/04/2003


Division 2-Powers to require information, etc.

(1) Where, in relation to a corporation which is or was listed-
(a) it appears to the Commission that there are circumstances suggesting that at any relevant time the business of the corporation has been conducted-
(i) with intent to defraud its creditors, or the creditors of any other person;
(ii) for any fraudulent or unlawful purpose; or
(iii) in a manner oppressive to its members or any part of its members;
(b) it appears to the Commission that there are circumstances suggesting that the corporation was formed for any fraudulent or unlawful purpose;
(c) it appears to the Commission that there are circumstances suggesting that persons concerned in the process by which the corporation became listed (including that for making the securities of the corporation available to the public in the course of such process) have engaged, in relation to such process, in defalcation, fraud, misfeasance or other misconduct;
(d) it appears to the Commission that there are circumstances suggesting that at any relevant time persons involved in the management of the affairs of the corporation have engaged, in relation to such management, in defalcation, fraud, misfeasance or other misconduct towards it or its members or any part of its members;
(e) it appears to the Commission that there are circumstances suggesting that at any relevant time members of the corporation or any part of its members have not been given all the information with respect to its affairs that they might reasonably expect; or
(f) a matter in respect of the investigation of which the Commission decides to provide assistance under section 186 relates to the corporation and is, in the opinion of the Commission, of a nature similar to the matter described in paragraph (a), (b), (c), (d) or (e) as being suggested by the circumstances referred to in such paragraph,
an authorized person may, subject to subsections (5) to (10), give a direction to-
(i) the corporation;
(ii) a corporation that is, or was at the material time, a related corporation of the corporation;
(iii) an authorized financial institution, other than the corporation or a corporation described in paragraph (ii);
(iv) an auditor, other than the corporation or a corporation described in paragraph (ii);
(v) any other person,
requiring the production, within the time and at the place specified in the direction, of any record and document specified in the direction.
(2) A power under this section to require the production of any record or document by any person includes the power-
(a) if the record or document is produced-
(i) to make copies or otherwise record details of the record or document; and
(ii) to require-
(A) the person;
(B) in the case of a corporation, any person who is a present or past officer of the corporation, or is or was at any time employed by the corporation,
to provide or make any explanation or statement in respect of the record or document (including, in so far as applicable, a description of the circumstances under which it was prepared or created, details of all instructions given or received in connection with it, and an explanation of the reasons for the making of entries contained in it or the omission of entries from it); or
(b) if the record or document is not produced, to require-
(i) the person;
(ii) in the case of a corporation, any person who is a present or past officer of the corporation, or is or was at any time employed by the corporation,
to state where it is.
(3) An authorized person may in writing require the person providing or making an explanation or statement under this section to verify within a reasonable period specified in the requirement the explanation or statement by statutory declaration, which may be taken by the authorized person.
(4) If a person does not provide or make an explanation or statement in accordance with a requirement under this section for the reason that the explanation or statement was not within his knowledge or in his possession, an authorized person may in writing require the person to verify within a reasonable period specified in the requirement by statutory declaration, which may be taken by the authorized person, that he was unable to comply or fully comply (as the case may be) with the requirement for that reason.
(5) An authorized person shall not give any direction under subsection (1)(i) or (ii) to require the production of any record or document unless the authorized person has reasonable cause to believe that the record or document relates to the affairs of the corporation to which the direction is to be given or a corporation of which such corporation is, or was at the material time, a related corporation.
(6) An authorized person shall not give any direction to an authorized financial institution under subsection (1)(iii) to require the production of any record or document unless the authorized person has reasonable cause to believe, and the Commission certifies in writing that the authorized person has reasonable cause to believe, that-
(a) the authorized financial institution is in possession of any record or document relating to the affairs of a corporation to which any direction has been or may be given under subsection (1)(i) or (ii); and
(b) the record or document required to be produced under the direction-
(i) relates to the affairs of such corporation or to a transaction with such corporation; and
(ii) is relevant to the consideration of whether there has been the occurrence of-
(A) where subsection (1)(a), (b), (c), (d) or (e) applies, the matter described in such subsection as being suggested by the circumstances referred to in such subsection; or
(B) where subsection (1)(f) applies, the matter in respect of the investigation of which the Commission decides to provide assistance under section 186.
(7) An authorized person shall not give any direction to an auditor under subsection (1)(iv) to require the production of any record or document unless the authorized person has reasonable cause to believe, and the Commission certifies in writing that the authorized person has reasonable cause to believe, that-
(a) the auditor is in possession of any record or document, which is in the nature of audit working papers, relating to the affairs of a corporation to which any direction has been or may be given under subsection (1)(i) or (ii); and
(b) the record or document required to be produced under the direction-
(i) relates to the affairs of such corporation; and
(ii) is relevant to the consideration of whether there has been the occurrence of-
(A) where subsection (1)(a), (b), (c), (d) or (e) applies, the matter described in such subsection as being suggested by the circumstances referred to in such subsection; or
(B) where subsection (1)(f) applies, the matter in respect of the investigation of which the Commission decides to provide assistance under section 186.
(8) An authorized person shall not give any direction to a person under subsection (1)(v) to require the production of any record or document unless the authorized person has reasonable cause to believe, and the Commission certifies in writing that the authorized person has reasonable cause to believe, that-
(a) the person has dealt or has had dealings, directly or indirectly, with, or is otherwise in possession of any record or document relating to the affairs of, a corporation to which any direction has been or may be given under subsection (1)(i) or (ii); and
(b) the record or document required to be produced under the direction-
(i) relates to the affairs of such corporation or to a transaction with such corporation;
(ii) is relevant to the consideration of whether there has been the occurrence of-
(A) where subsection (1)(a), (b), (c), (d) or (e) applies, the matter described in such subsection as being suggested by the circumstances referred to in such subsection; or
(B) where subsection (1)(f) applies, the matter in respect of the investigation of which the Commission decides to provide assistance under section 186; and
(iii) cannot be obtained by giving a direction to any other person under subsection (1)(i), (ii), (iii) or (iv).
(9) The power of an authorized person to give any direction under subsection (1) (other than subsection (1)(iii)) to any corporation which is an authorized financial institution may be exercised only in respect of-
(a) subsection (1)(e); or
(b) subsection (1)(f), if, and only if, the matter in respect of the investigation of which the Commission decides to provide assistance under section 186 is, in the opinion of the Commission, of a nature similar to the matter described in subsection (1)(e) as being suggested by the circumstances referred to in that subsection (1)(e).
(10) Before an authorized person gives any direction under subsection (1) (other than subsection (1)(iii)) to any corporation-
(a) where the corporation is an authorized financial institution or a corporation which, to the knowledge of the authorized person, is a controller of an authorized financial institution, or has as its controller an authorized financial institution, or has a controller that is also a controller of an authorized financial institution, the authorized person shall consult the Monetary Authority; or
(b) where the corporation is an insurer authorized under the Insurance Companies Ordinance (Cap 41), the authorized person shall consult the Insurance Authority.
(11) The Commission may authorize in writing any person as an authorized person for the purposes of this section.
(12) The Commission shall furnish an authorized person with a copy of his authorization, and the authorized person, before exercising any power under this section, shall produce a copy of the authorization to the person in respect of whom the power is exercised for inspection.
(13) A person who, without reasonable excuse, fails to comply with a requirement imposed on him by an authorized person under this section commits an offence and is liable-
(a) on conviction on indictment to a fine of $200000 and to imprisonment for 1 year; or
(b) on summary conviction to a fine at level 5 and to imprisonment for 6 months.
(14) A person who-
(a) in purported compliance with a requirement imposed on him by an authorized person under this section, produces any record or document or provides or makes an explanation or statement which is false or misleading in a material particular; and
(b) knows that, or is reckless as to whether, the record or document or the explanation or statement is false or misleading in a material particular,
commits an offence and is liable-
(i) on conviction on indictment to a fine of $1000000 and to imprisonment for 2 years; or
(ii) on summary conviction to a fine at level 6 and to imprisonment for 6 months.
(15) A person who-
(a) with intent to defraud-
(i) fails to comply with a requirement imposed on him by an authorized person under this section; or
(ii) in purported compliance with a requirement imposed on him by an authorized person under this section, produces any record or document or provides or makes an explanation or statement which is false or misleading in a material particular; or
(b) being an officer or employee of a corporation, with intent to defraud causes or allows the corporation to-
(i) fail to comply with a requirement imposed on it by an authorized person under this section; or
(ii) in purported compliance with a requirement imposed on it by an authorized person under this section, produce any record or document or provide or make an explanation or statement which is false or misleading in a material particular,
commits an offence and is liable-
(i) on conviction on indictment to a fine of $1000000 and to imprisonment for 7 years; or
(ii) on summary conviction to a fine at level 6 and to imprisonment for 6 months.
(16) A person is not excused from complying with a requirement imposed on the person by an authorized person under this section only on the ground that to do so might tend to incriminate the person.
(17) In this section-
"authorized person" (获授权人) means a person authorized under subsection (11);
"controller" (控制人) means a person who is an indirect controller or a majority shareholder controller as defined in section 2(1) of the Banking Ordinance (Cap 155);
"material time" (关键时间) means-
(a) where subsection (1)(a), (b), (c), (d) or (e) applies, the time at which the matter described in such subsection as being suggested by the circumstances referred to in such subsection appears to the Commission as occurring; or
(b) where subsection (1)(f) applies, the time at which the matter in respect of the investigation of which the Commission decides to provide assistance under section 186 appears to the Commission as occurring;
"relevant time" (有关时间)-
(a) in relation to a corporation which is listed, means any time since the formation of the corporation; or
(b) in relation to a corporation which was listed, means any time since the formation of the corporation but before the corporation ceased to remain listed.


Section: 180 Heading: Supervision of intermediaries and their associated entities Version Date: 01/04/2003


(1) Subject to subsections (9) and (10), an authorized person may at any reasonable time, for the purpose of ascertaining whether an intermediary or an associated entity of an intermediary is complying or has complied with, or is likely to be able to comply with, the requirement specified in subsection (2)-
(a) enter-
(i) in the case of an intermediary-
(A) where it is a licensed corporation, its premises as approved by the Commission under section 130(1); or
(B) where it is a registered institution, the premises of the registered institution; or
(ii) in the case of an associated entity of an intermediary, the premises of the associated entity;
(b) inspect, and make copies or otherwise record details of, any record or document relating to-
(i) the business conducted by the intermediary or the associated entity (as the case may be);
(ii) any transaction carried out by a related corporation of the intermediary or the associated entity (as the case may be); or
(iii) any transaction or activity which was undertaken in the course of, or which may affect, the business conducted by the intermediary or the associated entity (as the case may be); and
(c) make inquiries of-
(i) the intermediary or the associated entity (as the case may be);
(ii) a related corporation of the intermediary or the associated entity (as the case may be);
(iii) subject to subsection (7), any other person, whether or not connected with the intermediary or the associated entity (as the case may be), whom the authorized person has reasonable cause to believe has information relating to, or is in possession of, any record or document referred to in paragraph (b),
concerning any record or document referred to in paragraph (b), or concerning any transaction or activity which was undertaken in the course of, or which may affect, the business conducted by the intermediary or the associated entity (as the case may be).
(2) The requirement specified for the purposes of subsection (1) is the requirement not to contravene-
(a) any provision of this Ordinance;
(b) any notice or requirement given or made under or pursuant to any of the relevant provisions;
(c) any of the terms and conditions of any licence or registration under this Ordinance;
(d) any other condition imposed under or pursuant to any provision of this Ordinance.
(3) Subject to subsections (9) and (10), an authorized person in exercising any of his powers under subsection (1)(b) may require-
(a) the intermediary or the associated entity (as the case may be);
(b) a related corporation of the intermediary or the associated entity (as the case may be);
(c) subject to subsection (8), any other person, whether or not connected with the intermediary or the associated entity (as the case may be), whom the authorized person has reasonable cause to believe has information relating to, or is in possession of, any record or document referred to in subsection (1)(b),
to-
(i) give the authorized person access to any record or document referred to in subsection (1)(b), and produce, within the time and at the place specified by him, the record or document; and
(ii) answer any question regarding the record or document.
(4) Subject to subsections (9) and (10), an authorized person in exercising any of his powers under subsection (1)(c) may require the intermediary or the associated entity, the related corporation or the other person (as the case may be) referred to in subsection (1)(c), to-
(a) give the authorized person access to any record or document referred to in subsection (1)(b), and produce, within the time and at the place specified by him, the record or document; and
(b) answer any question raised for the purposes of subsection (1)(c).
(5) An authorized person may in writing require the person giving an answer under this section to verify within a reasonable period specified in the requirement the answer by statutory declaration, which may be taken by the authorized person.
(6) If a person does not give an answer in accordance with a requirement under this section for the reason that the answer was not within his knowledge, an authorized person may in writing require the person to verify within a reasonable period specified in the requirement by statutory declaration, which may be taken by the authorized person, that he was unable to comply or fully comply (as the case may be) with the requirement for that reason.
(7) An authorized person shall not exercise any of his powers under subsection (1)(c)(iii) unless he has reasonable cause to believe that the information sought cannot be obtained by the exercise of any of the powers under subsection (1)(c)(i) or (ii).
(8) An authorized person shall not exercise any of his powers under subsection (3)(c) unless he has reasonable cause to believe that the record or document or the information sought cannot be obtained by the exercise of any of the powers under subsection (3)(a) or (b).
(9) This section shall not be construed as requiring an authorized financial institution, not being the intermediary or the associated entity in question as referred to in subsection (1) or a related corporation of the intermediary or the associated entity (as the case may be), to disclose any information or produce any record or document relating to the affairs of a customer unless the relevant authority is satisfied, and certifies in writing that it is satisfied, that the disclosure or production is necessary for the purposes of this section.
(10) Before an authorized person exercises any power under this section (other than subsection (1)(c)(iii) or (3)(c)) in respect of a corporation-
(a) where the corporation is an authorized financial institution or a corporation which, to the knowledge of the authorized person, is a controller of an authorized financial institution, or has as its controller an authorized financial institution, or has a controller that is also a controller of an authorized financial institution, the authorized person shall consult the Monetary Authority; or
(b) where the corporation is an insurer authorized under the Insurance Companies Ordinance (Cap 41), the authorized person shall consult the Insurance Authority.
(11) The relevant authority may authorize in writing any person as an authorized person for the purposes of this section.
(12) The relevant authority shall furnish an authorized person authorized by it with a copy of his authorization, and the authorized person, when exercising any power under this section, shall as soon as reasonably practicable produce a copy of the authorization for inspection.
(13) Where a copy of any record or document is supplied or made for the purpose of complying with a requirement imposed under this section and a facility of a person other than the relevant authority is used to make the copy, the relevant authority shall reimburse the expenses which, in the opinion of the relevant authority, have been reasonably incurred by the person in making the copy.
(14) A person who, without reasonable excuse, fails to comply with a requirement imposed on him by an authorized person under this section commits an offence and is liable-
(a) on conviction on indictment to a fine of $200000 and to imprisonment for 1 year; or
(b) on summary conviction to a fine at level 5 and to imprisonment for 6 months.
(15) A person who-
(a) in purported compliance with a requirement imposed on him by an authorized person under this section, produces any record or document or gives an answer which is false or misleading in a material particular; and
(b) knows that, or is reckless as to whether, the record or document or the answer is false or misleading in a material particular,
commits an offence and is liable-
(i) on conviction on indictment to a fine of $1000000 and to imprisonment for 2 years; or
(ii) on summary conviction to a fine at level 6 and to imprisonment for 6 months.
(16) A person who-
(a) with intent to defraud-
(i) fails to comply with a requirement imposed on him by an authorized person under this section; or
(ii) in purported compliance with a requirement imposed on him by an authorized person under this section, produces any record or document or gives an answer which is false or misleading in a material particular; or
(b) being an officer or employee of a corporation, with intent to defraud causes or allows the corporation to-
(i) fail to comply with a requirement imposed on it by an authorized person under this section; or
(ii) in purported compliance with a requirement imposed on it by an authorized person under this section, produce any record or document or give an answer which is false or misleading in a material particular,
commits an offence and is liable-
(i) on conviction on indictment to a fine of $1000000 and to imprisonment for 7 years; or
(ii) on summary conviction to a fine at level 6 and to imprisonment for 6 months.
(17) In this section-
"authorized person" (获授权人) means a person authorized under subsection (11);
"controller" (控制人) means a person who is an indirect controller or a majority shareholder controller as defined in section 2(1) of the Banking Ordinance (Cap 155);
"relevant authority" (有关当局) means-
(a) where-
(i) the intermediary in question as referred to in subsection (1) is a registered institution; or
(ii) the associated entity in question as referred to in that subsection is the associated entity of a registered institution,
the Monetary Authority; or
(b) in any other case, the Commission.


Section: 181 Heading: Information relating to transactions Version Date: 01/04/2003


(1) An authorized person may, for the purpose of enabling or assisting the Commission to perform a function under any of the relevant provisions, require-
(a) a person registered as the holder of securities in a register of members kept under the Companies Ordinance (Cap 32);
(b) a person whom the authorized person has reasonable cause to believe holds any securities, futures contract, leveraged foreign exchange contract, or an interest in any securities, futures contract, leveraged foreign exchange contract or collective investment scheme;
(c) a person whom the authorized person has reasonable cause to believe has acquired or disposed of any securities, futures contract, leveraged foreign exchange contract, or an interest in any securities, futures contract, leveraged foreign exchange contract or collective investment scheme, whether directly or through a nominee, trustee or agent, and whether as beneficial owner, nominee, trustee, agent or otherwise;
(d) a licensed person or registered institution through whom or which the authorized person has reasonable cause to believe any securities, futures contract, leveraged foreign exchange contract, or an interest in any securities, futures contract, leveraged foreign exchange contract or collective investment scheme has been acquired, disposed of, dealt with, traded or arranged,
to furnish to him any of the information specified in subsection (2) within the time and in the form specified by him.
(2) The information specified for the purposes of subsection (1) is-
(a) the particulars (including, in so far as applicable, the name and aliases, address, telephone and facsimile numbers, electronic mail address, occupation and particulars of any document of identity (including, if not an individual, any document evidencing incorporation or registration)) that are reasonably capable of establishing the identity of the person on whose behalf, or by, from, to or through whom, the securities, futures contract, leveraged foreign exchange contract, or the interest in securities, futures contract, leveraged foreign exchange contract or collective investment scheme in question is held, or has been acquired, disposed of, dealt with, traded or arranged (as the case may be);
(b) the particulars (including the quantity) of and, in the case of acquisition or disposal, the consideration (if any) for the securities, futures contract, leveraged foreign exchange contract, or the interest in securities, futures contract, leveraged foreign exchange contract or collective investment scheme; and
(c) the instructions (if any) given to or by the person referred to in paragraph (a), or any officer, employee or agent of such person, in relation to the holding, acquisition, disposal, dealing, trading, arrangement of or in respect of the securities, futures contract, leveraged foreign exchange contract, or the interest in securities, futures contract, leveraged foreign exchange contract or collective investment scheme.
(3) An authorized person may in writing require the person furnishing any information under this section to verify within a reasonable period specified in the requirement the information by statutory declaration, which may be taken by the authorized person.
(4) If a person does not furnish any information in accordance with a requirement under this section for the reason that the information was not within his knowledge or in his possession, an authorized person may in writing require the person to verify within a reasonable period specified in the requirement by statutory declaration, which may be taken by the authorized person, that he was unable to comply or fully comply (as the case may be) with the requirement for that reason.
(5) The Commission may authorize in writing any person as an authorized person for the purposes of this section.
(6) The Commission shall furnish an authorized person with a copy of his authorization, and the authorized person, when exercising any power under this section, shall upon request by the person in respect of whom the power is exercised produce a copy of the authorization for inspection.
(7) A person who, without reasonable excuse, fails to comply with a requirement imposed on him by an authorized person under this section commits an offence and is liable-
(a) on conviction on indictment to a fine of $200000 and to imprisonment for 1 year; or
(b) on summary conviction to a fine at level 5 and to imprisonment for 6 months.
(8) A person who-
(a) in purported compliance with a requirement imposed on him by an authorized person under this section, furnishes to the authorized person information which is false or misleading in a material particular; and
(b) knows that, or is reckless as to whether, the information is false or misleading in a material particular,
commits an offence and is liable-
(i) on conviction on indictment to a fine of $1000000 and to imprisonment for 2 years; or
(ii) on summary conviction to a fine at level 6 and to imprisonment for 6 months.
(9) A person who-
(a) with intent to defraud-
(i) fails to comply with a requirement imposed on him by an authorized person under this section; or
(ii) in purported compliance with a requirement imposed on him by an authorized person under this section, furnishes to the authorized person information which is false or misleading in a material particular; or
(b) being an officer or employee of a corporation, with intent to defraud causes or allows the corporation to-
(i) fail to comply with a requirement imposed on it by an authorized person under this section; or
(ii) in purported compliance with a requirement imposed on it by an authorized person under this section, furnish to the authorized person information which is false or misleading in a material particular,
commits an offence and is liable-
(i) on conviction on indictment to a fine of $1000000 and to imprisonment for 7 years; or
(ii) on summary conviction to a fine at level 6 and to imprisonment for 6 months.
(10) In this section-
"authorized person" (获授权人) means a person authorized under subsection (5);
"interest" (权益) includes an interest of any nature, whether legal, equitable, proprietary or otherwise.

条： 178 条文标题： 第VIII部的释义 版本日期： 01/04/2003



第VIII部

监管及调查

第1分部─释义

在本部中，除文意另有所指外─
“受调查人”(person under investigation) 在调查员根据第182(1)条获指示或委任就某人调查任何事宜的情况下，指该人；
“审计工作材料”(audit working papers) 指为执行与核数师审计法团帐目有关的职能，或在与执行该等职能有关连的情况下，由该核数师或由他人代该核数师─
(a) 拟备的纪录或文件；及
(b) 取得和保留的纪录或文件；
“调查员”(investigator) 指根据第182(1)条获指示或委任调查任何事宜的人。

条： 179 条文标题： 要求交出关于上市法团等的纪录及文件的权力 版本日期： 01/04/2003



第2分部─要求资料的权力等

(1) 凡任何法团属或曾属上市法团，如─
(a) 证监会觉得有某些情况显示该法团的业务曾于任何有关时间在以下情况下经营─
(i) 用意在诈骗其债权人或其他人的债权人；
(ii) 是为欺诈性或非法目的而经营的；或
(iii) 是以欺压该法团的成员或任何部分成员的方式而经营的；
(b) 证监会觉得有某些情况显示该法团是为欺诈性或非法目的而组成的；
(c) 证监会觉得有某些情况显示与该法团上市过程(包括在该过程中向公众提供该法团的证券的过程)有关的人，曾经在与该过程有关的情况下作出亏空、欺诈、不当行为或其他失当行为；
(d) 证监会觉得有某些情况显示参与该法团事务的管理的人，曾于任何有关时间在与该等事务的管理有关的情况下对该法团或其成员或任何部分成员作出亏空、欺诈、不当行为或其他失当行为；
(e) 证监会觉得有某些情况显示该法团的成员或任何部分成员曾于任何有关时间未获提供他们可合理期望获得的关于该法团事务的所有资料；或
(f) 证监会决定根据第186条协助调查某事宜，而该事宜与该法团有关，且(按该会的意见)在性质上与(a)、(b)、(c)、(d)或(e)段提述的情况所显示的并在该段描述的事宜相似，
则获授权人可在第(5)至(10)款的规限下向下述者发出指示，要求在该指示指明的时间内在该指示指明的地点，交出该指示指明的纪录及文件─
(i) 该法团；
(ii) 属或曾在关键时间属该法团的有连系法团的另一法团；
(iii) 认可财务机构(但非该法团或第(ii)段描述的法团)；
(iv) 核数师(但非该法团或第(ii)段描述的法团)；
(v) 任何其他人。
(2) 根据本条要求某人交出纪录或文件的权力，包括作出以下作为的权力─
(a) 在该等纪录或文件已交出的情况下─
(i) 复印该等纪录或文件或以其他方式记录其中的细节；及
(ii) 要求以下人士就该等纪录或文件提供或作出解释或陈述(在适用范围内，包括描述拟备或制作该等纪录或文件时的情况、提供所有在与该等纪录或文件有关连的情况下作出或收取的指令的细节，以及解释在该等纪录或文件中作出或遗漏某记项的理由)─
(A) 该人；
(B) (如该人是法团)任何属或曾属该法团的高级人员的人，或任何正受雇或曾在任何时间受雇于该法团的人；或
(b) 在该等纪录或文件未予交出的情况下，要求以下人士说明该等纪录或文件在何处─
(i) 该人；
(ii) (如该人是法团)任何属或曾属该法团的高级人员的人，或任何正受雇或曾在任何时间受雇于该法团的人。
(3) 获授权人可以书面要求根据本条提供或作出解释、陈述或说明的人在该要求指明的合理期间内，藉法定声明核实该解释、陈述或说明，而该声明可由该获授权人监理。
(4) 如任何人没有按照根据本条施加的要求提供或作出解释、陈述或说明的理由，是该解释、陈述或说明是他所不知道的或并非由他管有的，则获授权人可以书面要求该人在该要求指明的合理期间内，藉法定声明核实他因该理由不能遵从或不能完全遵从(视属何情况而定)该要求，而该声明可由该获授权人监理。
(5) 除非获授权人有合理因由相信根据第(1)(i)或(ii)款向法团发出指示而要求交出的纪录或文件，是与该法团的事务有关，或与属或曾在关键时间属该法团的有连系法团的另一法团的事务有关，否则获授权人不得根据第(1)(i)或(ii)款发出该指示。
(6) 除非获授权人有合理因由相信并经证监会以书面证明他有合理因由相信以下各项，否则他不得根据第(1)(iii)款向认可财务机构发出指示，要求它交出任何纪录或文件─
(a) 该机构管有与某法团的事务有关的纪录或文件，而该法团已根据或可能会根据第(1)(i)或(ii)款接获指示；及
(b) 要求交出的纪录或文件─
(i) 与该法团的事务或交易有关；及
(ii) (A) 在第(1)(a)、(b)、(c)、(d)或(e)款适用的情况下，与考虑该款提述的情况所显示的并在该款描述的事宜曾否存在一事有关；或
(B) 在第(1)(f)款适用的情况下，与考虑证监会决定根据第186条协助调查的事宜曾否存在一事有关。
(7) 除非获授权人有合理因由相信并经证监会以书面证明他有合理因由相信以下各项，否则他不得根据第(1)(iv)款向任何核数师发出指示，要求该核数师交出任何纪录或文件─
(a) 该核数师管有任何属审计工作材料性质并与某法团的事务有关的纪录或文件，而该法团已根据或可能会根据第(1)(i)或(ii)款接获指示；及
(b) 要求交出的纪录或文件─
(i) 与该法团的事务有关；及
(ii) (A) 在第(1)(a)、(b)、(c)、(d)或(e)款适用的情况下，与考虑该款提述的情况所显示的并在该款描述的事宜曾否存在一事有关；或
(B) 在第(1)(f)款适用的情况下，与考虑证监会决定根据第186条协助调查的事宜曾否存在一事有关。
(8) 除非获授权人有合理因由相信并经证监会以书面证明他有合理因由相信以下各项，否则他不得根据第(1)(v)款向任何人发出指示，要求该人交出任何纪录或文件─
(a) 该人曾直接或间接与某法团有事务往来或进行交易，或在其他情况下管有与某法团的事务有关的纪录或文件，而该法团已根据或可能会根据第(1)(i)或(ii)款接获指示；及
(b) 要求交出的纪录或文件─
(i) 与该法团的事务或交易有关；
(ii) (A) 在第(1)(a)、(b)、(c)、(d)或(e)款适用的情况下，与考虑该款提述的情况所显示的并在该款描述的事宜曾否存在一事有关；或
(B) 在第(1)(f)款适用的情况下，与考虑证监会决定根据第186条协助调查的事宜曾否存在一事有关；及
(iii) 不能够藉根据第(1)(i)、(ii)、(iii)或(iv)款向其他人发出指示而取得。
(9) 根据第(1)款(第(1)(iii)款除外)向任何属认可财务机构的法团发出指示的权力─
(a) 只可就第(1)(e)款而行使；或
(b) 在以下情况下，方可就第(1)(f)款而行使∶证监会决定根据第186条协助调查的事宜，按该会的意见，在性质上与第(1)(e)款提述的情况所显示的并在第(1)(e)款描述的事宜相似。
(10) 获授权人在根据第(1)款(第(1)(iii)款除外)─
(a) 向以下两类法团发出指示前，须谘询金融管理专员∶第一类是属认可财务机构的法团；第二类是符合以下说明的法团∶获授权人知道该法团是某认可财务机构的控制人，或知道该法团的控制人属认可财务机构，或知道该法团的控制人亦是某认可财务机构的控制人；或
(b) 向属根据《保险公司条例》(第41章)获授权的保险人的法团发出指示前，须谘询保险业监督。
(11) 证监会可为施行本条以书面授权任何人为获授权人。
(12) 证监会须向获授权人发给授权书文本，而获授权人根据本条就任何人行使权力前，须向该人出示该授权书文本，以供查阅。
(13) 任何人无合理辩解而没有遵从获授权人根据本条向他施加的要求，即属犯罪─
(a) 一经循公诉程序定罪，可处罚款$200000及监禁1年；或
(b) 一经循简易程序定罪，可处第5级罚款及监禁6个月。
(14) 任何人─
(a) 在看来是遵从获授权人根据本条向他施加的要求时，交出在要项上属虚假或具误导性的纪录或文件，或提供或作出在要项上属虚假或具误导性的解释、陈述或说明；且
(b) 知道该纪录、文件、解释、陈述或说明在要项上属虚假或具误导性，或罔顾该纪录、文件、解释、陈述或说明是否在要项上属虚假或具误导性，
即属犯罪─
(i) 一经循公诉程序定罪，可处罚款$1000000及监禁2年；或
(ii) 一经循简易程序定罪，可处第6级罚款及监禁6个月。
(15) 任何人─
(a) 意图诈骗而─
(i) 没有遵从获授权人根据本条向他施加的要求；或
(ii) 在看来是遵从获授权人根据本条向他施加的要求时，交出在要项上属虚假或具误导性的纪录或文件，或提供或作出在要项上属虚假或具误导性的解释、陈述或说明；或
(b) 如属法团的高级人员或雇员，意图诈骗而致使或容许该法团─
(i) 没有遵从获授权人根据本条向该法团施加的要求；或
(ii) 在看来是遵从获授权人根据本条向该法团施加的要求时，交出在要项上属虚假或具误导性的纪录或文件，或提供或作出在要项上属虚假或具误导性的解释、陈述或说明，
即属犯罪─
(i) 一经循公诉程序定罪，可处罚款$1000000及监禁7年；或
(ii) 一经循简易程序定罪，可处第6级罚款及监禁6个月。
(16) 任何人不得仅以遵从获授权人根据本条向他施加的要求可能会导致他入罪为理由，而获豁免遵从该要求。
(17) 在本条中─
“有关时间”(relevant time)─
(a) 就属上市法团的法团而言，指在该法团组成之后的任何时间；或
(b) 就曾属上市法团的法团而言，指在该法团组成之后但不再属上市法团之前的任何时间；
“控制人”(controller) 指属《银行业条例》(第155章)第2(1)条所界定的间接控权人或大股东控权人的人；
“获授权人”(authorized person) 指根据第(11)款获授权的人；
“关键时间”(material time)─
(a) 就第(1)(a)、(b)、(c)、(d)或(e)款而言，指证监会觉得该款提述的情况所显示的并在该款描述的事宜正在发生的时间；或
(b) 就第(1)(f)款而言，指证监会认为该会决定根据第186条协助调查的事宜正在发生的时间。

条： 180 条文标题： 对中介人及其有联系实体的监管 版本日期： 01/04/2003



(1) 在第(9)及(10)款的规限下，获授权人可为确定任何中介人或任何中介人的有联系实体是否正遵从、已遵从或相当可能有能力遵从第(2)款指明的规定，而于任何合理时间─
(a) 进入以下处所─
(i) 就该中介人而言─
(A) (如该中介人是持牌法团)证监会根据第130(1)条批准的该法团的处所；或
(B) (如该中介人是注册机构)该机构的处所；或
(ii) (就该中介人的有联系实体而言)该实体的处所；
(b) 查阅和复印任何关于下述事宜的纪录或文件，或以其他方式记录该等纪录或文件中的细节─
(i) 该中介人或该实体(视属何情况而定)经营的业务；
(ii) 由该中介人或该实体(视属何情况而定)的有连系法团履行的交易；或
(iii) 在该中介人或该实体(视属何情况而定)经营的业务过程中所作的交易或活动，或可能影响该中介人或该实体(视属何情况而定)经营的业务的交易或活动；及
(c) 就(b)段提述的纪录或文件，或就在该中介人或该实体(视属何情况而定)经营的业务过程中所作的交易或活动，或就可能影响该中介人或该实体(视属何情况而定)经营的业务的交易或活动，而─
(i) 查讯该中介人或该实体(视属何情况而定)；
(ii) 查讯该中介人或该实体(视属何情况而定)的有连系法团；
(iii) (在第(7)款的规限下)查讯获授权人有合理因由相信是管有(b)段提述的纪录或文件或掌握关于该等纪录或文件的资料的其他人，不论该人是否与该中介人或该实体(视属何情况而定)有关连。
(2) 为施行第(1)款而指明的规定是不得违反以下各项的规定─
(a) 本条例任何条文；
(b) 根据或依据任何有关条文给予或作出的任何通知、规定或要求；
(c) 根据本条例批给的任何牌照或注册的任何条款或条件；
(d) 根据或依据本条例任何条文施加的任何其他条件。
(3) 在第(9)及(10)款的规限下，获授权人在行使第(1)(b)款所赋权力时，可─
(a) 要求有关中介人或有联系实体(视属何情况而定)；
(b) 要求该中介人或该实体(视属何情况而定)的有连系法团；
(c) (在第(8)款的规限下)要求获授权人有合理因由相信是管有第(1)(b)款提述的纪录或文件或掌握关于该等纪录或文件的资料的其他人，不论该人是否与该中介人或该实体(视属何情况而定)有关连，
作出以下作为─
(i) 让获授权人有途径取得第(1)(b)款提述的纪录或文件，及在获授权人指明的时间内在他指明的地点交出该等纪录或文件；及
(ii) 回答任何关于该等纪录或文件的问题。
(4) 在第(9)及(10)款的规限下，获授权人在行使第(1)(c)款所赋权力时，可要求该款提述的中介人、有联系实体、有连系法团或其他人(视属何情况而定)─
(a) 让获授权人有途径取得第(1)(b)款提述的纪录或文件，及在获授权人指明的时间内在他指明的地点交出该等纪录或文件；及
(b) 回答任何为施行第(1)(c)款而提出的问题。
(5) 获授权人可以书面要求根据本条给予答案的人在该要求指明的合理期间内，藉法定声明核实该答案，而该声明可由该获授权人监理。
(6) 如任何人没有按照根据本条施加的要求给予答案的理由是他不知道答案，则获授权人可以书面要求该人在该要求指明的合理期间内，藉法定声明核实他因该理由不能遵从或不能完全遵从(视属何情况而定)该要求，而该声明可由该获授权人监理。
(7) 除非获授权人有合理因由相信不能够藉行使第(1)(c)(i)或(ii)款所赋权力而取得所寻求的资料，否则他不得根据第(1)(c)(iii)款行使其权力。
(8) 除非获授权人有合理因由相信不能够藉行使第(3)(a)或(b)款所赋权力而取得所寻求的纪录、文件或资料，否则他不得根据第(3)(c)款行使其权力。
(9) 本条不得解释为规定并非第(1)款提述的有关中介人或有关有联系实体(或该中介人或该实体(视属何情况而定)的有连系法团)的认可财务机构披露任何关于其任何顾客的事务的资料或交出关于其任何顾客的事务的纪录或文件，但如有关当局信纳并以书面证明它信纳为施行本条，披露该等资料或交出该等纪录或文件是有需要的，则不在此限。
(10) 获授权人在根据本条(第(1)(c)(iii)或(3)(c)款除外)─
(a) 就属以下任何类别的法团行使权力前，须谘询金融管理专员∶第一类是属认可财务机构的法团；第二类是符合以下说明的法团∶获授权人知道该法团是某认可财务机构的控制人，或知道该法团的控制人属认可财务机构，或知道该法团的控制人亦是某认可财务机构的控制人；或
(b) 就属根据《保险公司条例》(第41章)获授权的保险人的法团行使权力前，须谘询保险业监督。
(11) 有关当局可为施行本条以书面授权任何人为获授权人。
(12) 有关当局须向它授权的获授权人发给授权书文本，而获授权人根据本条行使权力时，须在合理地切实可行的范围内尽快出示该授权书文本，以供查阅。
(13) 凡任何纪录或文件的文本是为遵从根据本条施加的要求而提供或制成，并藉使用某人的(而非有关当局的)设施而制成的，则有关当局须向他付还该当局认为是他因制作该文本而合理地招致的开支。
(14) 任何人无合理辩解而没有遵从获授权人根据本条向他施加的要求，即属犯罪─
(a) 一经循公诉程序定罪，可处罚款$200000及监禁1年；或
(b) 一经循简易程序定罪，可处第5级罚款及监禁6个月。
(15) 任何人─
(a) 在看来是遵从获授权人根据本条向他施加的要求时，交出在要项上属虚假或具误导性的纪录或文件，或给予在要项上属虚假或具误导性的答案；且
(b) 知道该纪录、文件或答案在要项上属虚假或具误导性，或罔顾该纪录、文件或答案是否在要项上属虚假或具误导性，
即属犯罪─
(i) 一经循公诉程序定罪，可处罚款$1000000及监禁2年；或
(ii) 一经循简易程序定罪，可处第6级罚款及监禁6个月。
(16) 任何人─
(a) 意图诈骗而─
(i) 没有遵从获授权人根据本条向他施加的要求；或
(ii) 在看来是遵从获授权人根据本条向他施加的要求时，交出在要项上属虚假或具误导性的纪录或文件，或给予在要项上属虚假或具误导性的答案；或
(b) 如属法团的高级人员或雇员，意图诈骗而致使或容许该法团─
(i) 没有遵从获授权人根据本条向该法团施加的要求；或
(ii) 在看来是遵从获授权人根据本条向该法团施加的要求时，交出在要项上属虚假或具误导性的纪录或文件，或给予在要项上属虚假或具误导性的答案，
即属犯罪─
(i) 一经循公诉程序定罪，可处罚款$1000000及监禁7年；或
(ii) 一经循简易程序定罪，可处第6级罚款及监禁6个月。
(17) 在本条中─
“有关当局”(relevant authority)─
(a) 在以下情况下，指金融管理专员─
(i) 第(1)款提述的有关中介人是注册机构；或
(ii) 第(1)款提述的有关有联系实体是注册机构的有联系实体；或
(b) 在其他情况下，指证监会；
“控制人”(controller) 指属《银行业条例》(第155章)第2(1)条所界定的间接控权人或大股东控权人的人；
“获授权人”(authorized person) 指根据第(11)款获授权的人。

条： 181 条文标题： 与交易有关的资料 版本日期： 01/04/2003



(1) 获授权人可为使证监会能够根据任何有关条文执行职能，或为协助证监会根据任何有关条文执行职能，而要求以下人士在他指明的时间内，按他指明的形式向他提交第(2)款指明的资料─
(a) 在根据《公司条例》(第32章)备存的成员登记册中登记为证券持有人的人；
(b) 该获授权人有合理因由相信是持有任何证券、期货合约、杠杆式外汇交易合约，或任何证券、期货合约、杠杆式外汇交易合约或集体投资计划的权益的人；
(c) 该获授权人有合理因由相信已直接或透过代名人、受托人或代理人，且不论是以实益拥有人、代名人、受托人或代理人身分或其他身分，而取得或处置任何证券、期货合约、杠杆式外汇交易合约，或任何证券、期货合约、杠杆式外汇交易合约或集体投资计划的权益的人；
(d) 符合以下说明的持牌人或注册机构∶该获授权人有合理因由相信曾有任何证券、期货合约、杠杆式外汇交易合约，或任何证券、期货合约、杠杆式外汇交易合约或集体投资计划的权益透过该持牌人或注册机构而取得、处置、处理、买卖或安排。
(2) 为施行第(1)款而指明的资料是─
(a) 按理能够确立有关的人的身分的详情(在适用范围内，包括姓名或名称、别名、地址、电话号码、传真号码、电子邮件地址、职业及身分证明文件(就并非个人的人而言，包括成立为法团的证据或登记的证据)的详情)，而有关证券、期货合约、杠杆式外汇交易合约，或有关证券、期货合约、杠杆式外汇交易合约或集体投资计划的权益现时是代该人或由该人或透过该人而持有的或是从该人取得而持有的，或曾是代该人或由该人或从该人或透过该人而取得、处置、处理、买卖或安排的，或曾是经处置而转予该人的(视属何情况而定)；
(b) 有关证券、期货合约、杠杆式外汇交易合约，或有关证券、期货合约、杠杆式外汇交易合约或集体投资计划的权益的详情(包括数量)及(如属取得或处置)代价(如有的话)；及
(c) (a)段提述的人或该人的高级人员、雇员或代理人就有关证券、期货合约、杠杆式外汇交易合约，或有关证券、期货合约、杠杆式外汇交易合约或集体投资计划的权益的持有、取得、处置、处理、买卖或安排而作出或收取的指令(如有的话)，或与上述持有、取得、处置、处理、买卖或安排有关而向该等人作出或由该等人收取的指令(如有的话)。
(3) 获授权人可以书面要求根据本条提交资料的人在该要求指明的合理期间内，藉法定声明核实该等资料，而该声明可由该获授权人监理。
(4) 如任何人没有按照根据本条施加的要求提交资料的理由，是该资料是他所不知道的或并非由他管有的，则获授权人可以书面要求该人在该要求指明的合理期间内，藉法定声明核实他因该理由不能遵从或不能完全遵从(视属何情况而定)该要求，而该声明可由该获授权人监理。
(5) 证监会可为施行本条以书面授权任何人为获授权人。
(6) 证监会须向获授权人发给授权书文本，而获授权人根据本条就任何人行使权力时，须应该人要求出示该授权书文本，以供查阅。
(7) 任何人无合理辩解而没有遵从获授权人根据本条向他施加的要求，即属犯罪─
(a) 一经循公诉程序定罪，可处罚款$200000及监禁1年；或
(b) 一经循简易程序定罪，可处第5级罚款及监禁6个月。
(8) 任何人─
(a) 在看来是遵从获授权人根据本条向他施加的要求时，提交在要项上属虚假或具误导性的资料；且
(b) 知道该资料在要项上属虚假或具误导性，或罔顾该资料是否在要项上属虚假或具误导性，
即属犯罪─
(i) 一经循公诉程序定罪，可处罚款$1000000及监禁2年；或
(ii) 一经循简易程序定罪，可处第6级罚款及监禁6个月。
(9) 任何人─
(a) 意图诈骗而─
(i) 没有遵从获授权人根据本条向他施加的要求；或
(ii) 在看来是遵从获授权人根据本条向他施加的要求时，提交在要项上属虚假或具误导性的资料；或
(b) 如属法团的高级人员或雇员，意图诈骗而致使或容许该法团─
(i) 没有遵从获授权人根据本条向该法团施加的要求；或
(ii) 在看来是遵从获授权人根据本条向该法团施加的要求时，提交在要项上属虚假或具误导性的资料，
即属犯罪─
(i) 一经循公诉程序定罪，可处罚款$1000000及监禁7年；或
(ii) 一经循简易程序定罪，可处第6级罚款及监禁6个月。
(10) 在本条中─
“获授权人”(authorized person) 指根据第(5)款获授权的人；
“权益”(interest) 包括任何性质的权益，不论是法律性质、衡平法性质、所有权性质或其他性质。

Section: 182 Heading: Investigations Version Date: 01/04/2003


Division 3-Powers of investigations

(1) Where-
(a) the Commission has reasonable cause to believe that an offence under any of the relevant provisions may have been committed;
(b) the Commission has reasonable cause to believe that a person may have engaged in defalcation, fraud, misfeasance or other misconduct in connection with-
(i) dealing in any securities or futures contract or trading in any leveraged foreign exchange contract;
(ii) the management of investment in any securities, futures contract or leveraged foreign exchange contract;
(iii) offering or making any leveraged foreign exchange contract or collective investment scheme;
(iv) giving advice in relation to the allotment of securities, or the acquisition or disposal of, or investment in, any securities, futures contract, leveraged foreign exchange contract, or an interest in any securities, futures contract, leveraged foreign exchange contract or collective investment scheme; or
(v) any transaction involving securities margin financing;
(c) the Commission has reasonable cause to believe that market misconduct may have taken place;
(d) the Commission has reasonable cause to believe that the manner in which a person has engaged or is engaging in any of the activities referred to in paragraph (b)(i) to (v) is not in the interest of the investing public or in the public interest;
(e) the Commission-
(i) for the purpose of considering whether to exercise any power under section 194 or 196, has reason to inquire whether any person is or was at any time guilty of misconduct, or is not a fit and proper person, as described in section 194(1) or (2) or 196(1) or (2); or
(ii) for the purpose of assisting the Monetary Authority to consider whether to exercise any power under section 58A or 71C of the Banking Ordinance (Cap 155), has reason to inquire whether any person-
(A) is or was at any time guilty of misconduct, or is not or has ceased to be a fit and proper person, as described in section 58A(1) of that Ordinance; or
(B) is or was at any time guilty of misconduct, or should cease to be regarded as a fit and proper person, as described in section 71C(4) of that Ordinance;
(f) the Commission has reason to inquire whether any of the conditions imposed in respect of an authorization under section 104 or 105 are being complied with; or
(g) a matter in respect of the investigation of which the Commission decides to provide assistance under section 186 is, in the opinion of the Commission, of a nature similar to the matter described in paragraph (a), (b), (c), (d), (e) or (f) as that which the Commission has reasonable cause to believe or has reason to inquire (as the case may be),
the Commission may in writing direct one or more of its employees or, with the consent of the Financial Secretary, appoint one or more other persons, to investigate any of the matters referred to in paragraphs (a) to (g).
(2) The costs and expenses incurred by an investigator, other than an employee of the Commission, are to be paid out of moneys provided by the Legislative Council.
(3) The Commission shall furnish an investigator with a copy of his direction or appointment (as the case may be), and the investigator, before first imposing any requirement on a person under section 183(1), (2) or (3), shall produce a copy of the direction or appointment (as the case may be) to that person for inspection.
(4) Before the Commission directs any of its employees, or appoints any person-
(a) to investigate any matter under subsection (1)(e)(i), to the extent that the investigation is for the purpose of considering whether to exercise any power under section 196; or
(b) to investigate any matter under subsection (1)(e)(ii),
the Commission shall consult the Monetary Authority.

Section: 183 Heading: Conduct of investigations Version Date: 01/04/2003


(1) The person under investigation or a person whom the investigator has reasonable cause to believe has in his possession any record or document which contains, or which is likely to contain, information relevant to an investigation under section 182, or whom the investigator has reasonable cause to believe otherwise has such information in his possession, shall-
(a) produce to the investigator, within the time and at the place the investigator reasonably requires in writing, any record or document specified by the investigator which is, or may be, relevant to the investigation and which is in his possession;
(b) if required by the investigator, give the investigator an explanation or further particulars in respect of any record or document produced under paragraph (a);
(c) attend before the investigator at the time and place the investigator reasonably requires in writing, and answer any question relating to the matters under investigation that the investigator may raise with him; and
(d) give the investigator all assistance in connection with the investigation which he is reasonably able to give, including responding to any written question raised by the investigator.
(2) An investigator may in writing require the person giving or making an explanation, particulars, answer or statement under this section to verify within a reasonable period specified in the requirement the explanation, particulars, answer or statement by statutory declaration, which may be taken by the investigator.
(3) If a person does not give or make an explanation, particulars, answer or statement in accordance with a requirement under this section for the reason that the explanation, particulars, answer or statement was not within his knowledge or in his possession, an investigator may in writing require the person to verify within a reasonable period specified in the requirement by statutory declaration, which may be taken by the investigator, that he was unable to comply or fully comply (as the case may be) with the requirement for that reason.
(4) Neither section 182 nor this section shall be construed as requiring an authorized financial institution to disclose any information or produce any record or document relating to the affairs of a customer to the investigator unless-
(a) the customer is a person whom the investigator has reasonable cause to believe may be able to give information relevant to the investigation; and
(b) the Commission is satisfied, and certifies in writing that it is satisfied, that the disclosure or production is necessary for the purposes of the investigation.
(5) The investigator may, and if so directed by the Commission shall, make interim reports on his investigation to the Commission, and on the conclusion of his investigation shall make a final report on his investigation to the Commission.
(6) The Commission may, with the consent of the Secretary for Justice, cause a report under this section to be published.

Section: 184 Heading: Offences in relation to investigations Version Date: 01/04/2003


(1) A person who, without reasonable excuse-
(a) fails to produce any record or document required to be produced under section 183(1)(a);
(b) fails to give an explanation or further particulars required under section 183(1)(b);
(c) fails to attend before the investigator as required under section 183(1)(c);
(d) fails to answer a question raised by the investigator under section 183(1)(c);
(e) fails to comply with section 183(1)(d); or
(f) fails to comply with a requirement under section 183(2) or (3),
commits an offence and is liable-
(i) on conviction on indictment to a fine of $200000 and to imprisonment for 1 year; or
(ii) on summary conviction to a fine at level 5 and to imprisonment for 6 months.
(2) A person-
(a) who-
(i) in purportedly complying with a requirement imposed by the investigator under section 183(1)(a), produces any record or document which is false or misleading in a material particular;
(ii) in purportedly complying with a requirement imposed by the investigator under section 183(1)(b), gives any explanation or further particulars which are false or misleading in a material particular;
(iii) in purportedly answering any question raised by the investigator under section 183(1)(c), says anything which is false or misleading in a material particular; or
(iv) in purportedly responding to any written question raised by the investigator under section 183(1)(d), states anything which is false or misleading in a material particular; and
(b) who knows that, or is reckless as to whether, the record or document, the explanation or further particulars, the thing or the statement (as the case may be) is false or misleading in a material particular,
commits an offence and is liable-
(i) on conviction on indictment to a fine of $1000000 and to imprisonment for 2 years; or
(ii) on summary conviction to a fine at level 6 and to imprisonment for 6 months.
(3) A person who-
(a) with intent to defraud-
(i) fails to do anything as described in subsection (1)(a), (b), (c), (d), (e) or (f);
(ii) in purportedly complying with a requirement imposed by the investigator under section 183(1)(a), produces any record or document which is false or misleading in a material particular;
(iii) in purportedly complying with a requirement imposed by the investigator under section 183(1)(b), gives any explanation or further particulars which are false or misleading in a material particular;
(iv) in purportedly answering any question raised by the investigator under section 183(1)(c), says anything which is false or misleading in a material particular; or
(v) in purportedly responding to any written question raised by the investigator under section 183(1)(d), states anything which is false or misleading in a material particular; or
(b) being an officer or employee of a corporation, with intent to defraud causes or allows the corporation to-
(i) fail to do anything as described in subsection (1)(a), (b), (c), (d), (e) or (f);
(ii) in purportedly complying with a requirement imposed by the investigator under section 183(1)(a), produce any record or document which is false or misleading in a material particular;
(iii) in purportedly complying with a requirement imposed by the investigator under section 183(1)(b), give any explanation or further particulars which are false or misleading in a material particular;
(iv) in purportedly answering any question raised by the investigator under section 183(1)(c), say anything which is false or misleading in a material particular; or
(v) in purportedly responding to any written question raised by the investigator under section 183(1)(d), state anything which is false or misleading in a material particular,
commits an offence and is liable-
(i) on conviction on indictment to a fine of $1000000 and to imprisonment for 7 years; or
(ii) on summary conviction to a fine at level 6 and to imprisonment for 6 months.
(4) A person is not excused from complying with a requirement imposed on the person by an investigator under section 183 only on the ground that to do so might tend to incriminate the person.
(5) Where any person is convicted by a court on a prosecution instituted as a result of an investigation under section 182, the court may order him to pay to the Commission the whole or a part of the costs and expenses of the investigation and the Commission may recover the whole or the part (as the case may be) of the costs and expenses as a civil debt due to it.
(6) Where the Commission receives an amount under an order made under subsection (5) in respect of any of the costs and expenses of an investigation, and all or any of the costs and expenses have been paid out of moneys provided by the Legislative Council, the Commission shall pay to the Financial Secretary the amount received under the order to the extent that it has already been paid out of moneys provided by the Legislative Council.

Section: 185 Heading: Application to Court of First Instance relating to non-compliance with requirements under section 179, 180, 181 or 183 Version Date: 01/04/2003


Division 4-Miscellaneous

(1) If a person fails to do anything upon being required to do so by an authorized person under section 179, 180 or 181, or to do anything upon being required to do so by an investigator under section 183(1), (2) or (3), the authorized person or the investigator (as the case may be) may, by originating summons or originating motion, make an application to the Court of First Instance in respect of the failure, and the Court may inquire into the case and-
(a) if the Court is satisfied that there is no reasonable excuse for the person not to comply with the requirement, order the person to comply with the requirement within the period specified by the Court; and
(b) if the Court is satisfied that the failure was without reasonable excuse, punish the person, and any other person knowingly involved in the failure, in the same manner as if he and, where applicable, that other person had been guilty of contempt of court.
(2) An originating summons under subsection (1) shall be in Form No. 10 in Appendix A to the Rules of the High Court (Cap 4 sub. leg. A).
(3) Notwithstanding anything in this section and any other provisions of this Ordinance-
(a) no proceedings may be instituted against any person for the purposes of subsection (1)(b) in respect of any conduct if-
(i) criminal proceedings have previously been instituted against the person under section 179, 180, 181 or 184 in respect of the same conduct; and
(ii) (A) those criminal proceedings remain pending; or
(B) by reason of the previous institution of those criminal proceedings, no criminal proceedings may again be lawfully instituted against that person under such section in respect of the same conduct;
(b) no criminal proceedings may be instituted against any person under section 179, 180, 181 or 184 in respect of any conduct if-
(i) proceedings have previously been instituted against the person for the purposes of subsection (1)(b) in respect of the same conduct; and
(ii) (A) those proceedings remain pending; or
(B) by reason of the previous institution of those proceedings, no proceedings may again be lawfully instituted against that person for the purposes of such subsection in respect of the same conduct.


Section: 186 Heading: Assistance to regulators outside Hong Kong Version Date: 01/04/2003


(1) Where the Commission receives, from an authority or regulatory organization outside Hong Kong which in the opinion of the Commission satisfies the requirements referred to in subsection (5)(a) and (b), a request for assistance to investigate whether a person specified by the authority or regulatory organization has contravened or is contravening legal or regulatory requirements which-
(a) the authority or regulatory organization enforces or administers; and
(b) relate to such transactions regarding any securities, futures contract, leveraged foreign exchange contract, collective investment scheme or other similar transactions as are regulated by the authority or regulatory organization,
the Commission may, where it is of the opinion that the condition specified in subsection (3) is satisfied, provide the assistance to investigate the matter by exercising any of its powers under sections 179, 181, 182 and 183.
(2) Where the Commission receives, from a companies inspector outside Hong Kong who in the opinion of the Commission satisfies the requirements referred to in subsection (5)(a) and (b), a request for assistance to investigate whether a person specified by the companies inspector has contravened or is contravening legal or regulatory requirements which relate to transactions regarding any securities, futures contract, leveraged foreign exchange contract, collective investment scheme or other similar transactions, the Commission may, where it is of the opinion that the condition specified in subsection (3) is satisfied, provide the assistance to investigate the matter by exercising any of its powers under sections 179, 181, 182 and 183.
(3) The condition referred to in subsections (1) and (2) is that-
(a) it is desirable or expedient that the assistance requested under subsection (1) or (2) (as the case may be) should be provided in the interest of the investing public or in the public interest; or
(b) the assistance will enable or assist the recipient of the assistance to perform its or his functions and it is not contrary to the interest of the investing public or to the public interest that the assistance should be provided.
(4) In deciding whether the condition specified in subsection (3) is satisfied in a particular case, the Commission shall take into account-
(a) where the recipient of the assistance is an authority or regulatory organization referred to in subsection (1), whether the authority or regulatory organization will-
(i) pay to the Commission any of the costs and expenses incurred in providing the assistance; and
(ii) be able and willing to provide reciprocal assistance within its jurisdiction in response to a comparable request for assistance from Hong Kong; or
(b) where the recipient of the assistance is a companies inspector referred to in subsection (2), whether-
(i) the companies inspector will pay to the Commission any of the costs and expenses incurred in providing the assistance; and
(ii) under the laws of the country or territory in which the companies inspector is appointed, reciprocal assistance will be provided in response to a comparable request for assistance from Hong Kong.
(5) Where the Commission is satisfied, for the purposes of subsection (1) or (2), that an authority, regulatory organization or companies inspector outside Hong Kong-
(a) performs any function similar to a function of the Commission or the Registrar of Companies, or regulates, supervises or investigates banking, insurance or other financial services or the affairs of corporations; and
(b) is subject to adequate secrecy provisions,
the Commission shall as soon as reasonably practicable thereafter cause the name of the authority, regulatory organization or companies inspector (as the case may be) to be published in the Gazette.
(6) If a person is required-
(a) to provide or make an explanation or statement as required by an authorized person within the meaning of section 179 exercising pursuant to subsection (1) or (2) a power under section 179; or
(b) to give an explanation or further particulars as required by, or to give an answer to any question as raised by, an investigator exercising pursuant to subsection (1) or (2) a power under section 183,
and the explanation or statement, the explanation or further particulars, or the answer (as the case may be) might tend to incriminate him and he so claims before providing or making the explanation or statement, giving the explanation or further particulars, or giving the answer (as the case may be), then, without limiting the provisions of section 187, the authorized person or investigator (as the case may be) shall not provide evidence of the requirement and the explanation or statement, the explanation or further particulars, or the question and answer (as the case may be) to an authority, regulatory organization or companies inspector outside Hong Kong for use in criminal proceedings against him in the jurisdiction of the authority, regulatory organization or companies inspector (as the case may be).
(7) Where the Commission receives from an authority, regulatory organization or companies inspector outside Hong Kong an amount paid in respect of any of the costs and expenses incurred in providing assistance under this section, and all or any of the costs and expenses have been paid out of moneys provided by the Legislative Council, the Commission shall pay to the Financial Secretary the amount received to the extent that it has already been paid out of moneys provided by the Legislative Council.
(8) Any matter published under subsection (5) is not subsidiary legislation.
(9) In this section, "companies inspector" (公司审查员), in relation to a place outside Hong Kong, means a person whose functions under the laws of that place include the investigation of the affairs of a corporation carrying on business in that place.

Section: 187 Heading: Use of incriminating evidence in proceedings Version Date: 01/04/2003


(1) Where-
(a) an authorized person within the meaning of section 179 requires a person to provide or make an explanation or statement under that section; or
(b) an investigator requires a person to give an explanation or further particulars or to give an answer to any question under section 183,
the authorized person or the investigator (as the case may be) shall ensure that the person has first been informed or reminded (as the case may be) of the limitations imposed by subsection (2) on the admissibility in evidence of the requirement and of the explanation or statement, the explanation or further particulars, or the question and answer (as the case may be).
(2) Notwithstanding any other provisions of this Ordinance, where-
(a) an authorized person within the meaning of section 179 requires a person to provide or make an explanation or statement under that section; or
(b) an investigator requires a person to give an explanation or further particulars or to give an answer to any question under section 183,
and the explanation or statement, the explanation or further particulars, or the answer (as the case may be) might tend to incriminate the person and the person so claims before providing or making the explanation or statement, giving the explanation or further particulars, or giving the answer (as the case may be), then the requirement as well as the explanation or statement, the explanation or further particulars, or the question and answer (as the case may be) shall not be admissible in evidence against the person in criminal proceedings in a court of law other than those in which the person is charged with an offence under section 179(13), (14) or (15) or 184, or under section 219(2)(a), 253(2)(a) or 254(6)(a) or (b), or under Part V of the Crimes Ordinance (Cap 200), or for perjury, in respect of the explanation or statement, the explanation or further particulars, or the answer (as the case may be).

Section: 188 Heading: Lien claimed on records or documents Version Date: 01/04/2003


Where the person in possession of any record or document required to be produced under this Part claims a lien on the record or document-
(a) the requirement to produce the record or document shall not be affected by the lien;
(b) no fees shall be payable for or in respect of the production; and
(c) the production shall be without prejudice to the lien.


Section: 189 Heading: Production of information in information systems, etc. Version Date: 01/04/2003


Where any information or matter contained in any record or document required to be produced under this Part is recorded otherwise than in a legible form, any power conferred by this Part to require the production of the record or document includes the power to require the production of a reproduction of the recording of the information or matter or of the relevant part of it-
(a) where the recording enables the information or matter to be reproduced in a legible form, in a legible form; and
(b) where the information or matter is recorded in an information system, in a form which enables the information or matter to be reproduced in a legible form.

Section: 190 Heading: Inspection of records or documents seized, etc. Version Date: 01/04/2003


Where an authorized person within the meaning of section 179, 180 or 181 or an investigator has taken possession of any record or document under this Part, the authorized person or the investigator (as the case may be) shall, subject to any reasonable conditions he imposes as to security or otherwise, permit a person who would be entitled to inspect the record or document had he not taken possession of it under this Part, to inspect it and to make copies or otherwise record details of it at all reasonable times.

Section: 191 Heading: Magistrate's warrants Version Date: 01/04/2003


(1) If a magistrate is satisfied on information on oath laid by-
(a) an employee of the Commission or, where the exercise of powers under section 180 is concerned, of the relevant authority within the meaning of that section; or
(b) an authorized person within the meaning of section 179 or 180, or an investigator,
that there are reasonable grounds to suspect that there is, or is likely to be, on premises specified in the information any record or document which may be required to be produced under this Part, the magistrate may issue a warrant authorizing a person specified in the warrant, a police officer, and such other persons as may be necessary to assist in the execution of the warrant to-
(i) enter the premises so specified, if necessary by force, at any time within the period of 7 days beginning on the date of the warrant; and
(ii) search for, seize and remove any record or document which the person specified in the warrant or police officer has reasonable cause to believe may be required to be produced under this Part.
(2) A person specified in, or a police officer or any other person authorized by, a warrant issued under subsection (1) may-
(a) require any person on the premises specified in the warrant whom he has reasonable cause to believe to be employed in connection with a business which is, or which has been, conducted on the premises to produce for examination any record or document which is in the possession of the person and which he has reasonable cause to believe may be required to be produced under this Part;
(b) prohibit any person found on the premises specified in the warrant from-
(i) removing from the premises any record or document required to be produced under paragraph (a);
(ii) erasing, adding to or otherwise altering an entry or other particulars contained in, or otherwise interfering in any manner with, or causing or permitting any other person to interfere with, the record or document;
(c) take, in relation to any record or document required to be produced under paragraph (a), any other step which may appear necessary for preserving it and preventing interference with it.
(3) Any record or document removed under this section may be retained for any period not exceeding 6 months beginning on the day of its removal or, where the record or document is or may be required for criminal proceedings or for any proceedings under this Ordinance, for such longer period as may be necessary for the purposes of those proceedings.
(4) Where a person removes any record or document under this section, he shall as soon as reasonably practicable thereafter give a receipt for it, and he may permit any person who would be entitled to inspect it but for the removal to inspect the record or document and to make copies or otherwise record details of it at all reasonable times.
(5) Section 102 of the Criminal Procedure Ordinance (Cap 221) applies to any property which has by virtue of this section come into the possession of the Commission or, where the exercise of powers under section 180 is concerned, of the relevant authority within the meaning of that section, as it applies to property which has come into the possession of the police.
(6) A person commits an offence if he-
(a) without reasonable excuse, fails to comply with a requirement or prohibition under subsection (2); or
(b) obstructs a person exercising a power conferred by subsection (2).
(7) A person who commits an offence under subsection (6) is liable-
(a) on conviction on indictment to a fine of $1000000 and to imprisonment for 2 years; or
(b) on summary conviction to a fine at level 6 and to imprisonment for 6 months.


Section: 192 Heading: Destruction of documents, etc. Version Date: 01/04/2003


(1) A person commits an offence if he destroys, falsifies, conceals or otherwise disposes of, or causes or permits the destruction, falsification, concealment or disposal of, any record or document required to be produced under this Part, with intent to conceal, from the person by whom the requirement to produce was imposed, facts or matters capable of being disclosed by the record or document.
(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 2 years; or
(b) on summary conviction to a fine at level 6 and to imprisonment for 6 months.

条： 182 条文标题： 调查 版本日期： 01/04/2003



第3分部─调查权力


(1) 如─
(a) 证监会有合理因由相信有人可能已犯任何有关条文所订罪行；
(b) 证监会有合理因由相信有人可能已在与下述事宜有关连的情况下作出亏空、欺诈、不当行为或其他失当行为─
(i) 证券或期货合约的交易或杠杆式外汇交易合约的买卖；
(ii) 证券、期货合约或杠杆式外汇交易合约的投资的管理；
(iii) 提出杠杆式外汇交易合约或集体投资计划的要约，或订立该等合约或计划；
(iv) 提供关于以下事宜的意见∶配售证券，或证券、期货合约或杠杆式外汇交易合约的取得、处置或投资，或证券、期货合约、杠杆式外汇交易合约或集体投资计划的权益的取得、处置或投资；或
(v) 涉及证券保证金融资的交易；
(c) 证监会有合理因由相信可能曾发生市场失当行为；
(d) 任何人曾经或正在从事(b)(i)至(v)段提述的任何活动，而证监会有合理因由相信该人从事该等活动的方式并不符合投资大众的利益或公众利益；
(e) 证监会─
(i) 为考虑是否根据第194或196条行使任何权力，有理由查讯任何人是否如第194(1)或(2)或196(1)或(2)条所描述般犯失当行为或曾在任何时间犯失当行为或并非适当人选；或
(ii) 为协助金融管理专员考虑是否根据《银行业条例》(第155章)第58A或71C条行使任何权力，有理由查讯任何人是否─
(A) 如该条例第58A(1)条所描述般犯失当行为或曾在任何时间犯失当行为或并非或不再是适当人选；或
(B) 如该条例第71C(4)条所描述般犯失当行为或曾在任何时间犯失当行为或应不再视为适当人选；
(f) 证监会有理由查讯根据第104或105条就某项认可施加的条件是否正获遵从；或
(g) 证监会决定根据第186条协助调查某事宜，而该事宜按该会的意见，在性质上与(a)、(b)、(c)、(d)、(e)或(f)段所述的而该会有合理因由相信或有理由查讯(视属何情况而定)的事宜相似，
则证监会可以书面指示一名或多于一名该会雇员，或在财政司司长的同意下，委任一名或多于一名其他人，以调查(a)至(g)段提述的任何事宜。
(2) 并非证监会雇员的调查员所招致的费用及开支，由立法会所拨款项支付。
(3) 证监会须向调查员发给他所获的指示或委任(视属何情况而定)的文本，而调查员根据第183(1)、(2)或(3)条向任何人首次施加要求前，须向该人交出该文本，以供查阅。
(4) 证监会在指示其任何雇员或委任任何人作出以下作为前，须谘询金融管理专员─
(a) 根据第(1)(e)(i)款调查任何事宜，但只限于该项调查是为考虑是否根据第196条行使任何权力的；或
(b) 根据第(1)(e)(ii)款调查任何事宜。

： 183 条文标题： 调查的进行 版本日期： 01/04/2003



(1) 任何受调查人，或调查员有合理因由相信是管有载有或相当可能载有与根据第182条所作调查有关的资料的任何纪录或文件的人，或调查员有合理因由相信是以其他方式管有该等资料的人，须─
(a) 在该调查员以书面合理地要求的时间内，在该调查员以书面合理地要求的地点，向该调查员交出该调查员指明的、与或可能与该项调查有关的并且是由该人所管有的纪录或文件；
(b) 按该调查员的要求(如有的话)，就根据(a)段交出的纪录或文件向该调查员提供解释或进一步详情；
(c) 在该调查员以书面合理地要求的时间及地点，面见该调查员，并回答该调查员就调查中的事宜向该人提出的问题；及
(d) 就该项调查向该调查员提供所有该人按理能够提供的协助，包括回答该调查员提出的书面问题。
(2) 调查员可以书面要求根据本条提供或作出解释、详情、答案或陈述的人在该要求指明的合理期间内，藉法定声明核实该解释、详情、答案或陈述，而该声明可由该调查员监理。
(3) 如任何人没有按照根据本条施加的要求提供或作出解释、详情、答案或陈述的理由，是该解释、详情、答案或陈述是他所不知道的或并非由他管有的，则调查员可以书面要求该人在该要求指明的合理期间内，藉法定声明核实他因该理由不能遵从或不能完全遵从(视属何情况而定)该要求，而该声明可由该调查员监理。
(4) 第182条及本条均不得解释为规定认可财务机构向调查员披露关于其任何顾客的事务的资料或交出关于其任何顾客的事务的纪录或文件，但如─
(a) 调查员有合理因由相信该顾客可能有能力提供与该项调查有关的资料；及
(b) 证监会信纳并以书面证明它信纳就该项调查而言，披露该等资料或交出该等纪录或文件是有需要的，
则不在此限。
(5) 调查员可向证监会作出中期调查报告，如证监会有所指示，则调查员须向该会作出中期调查报告，而在调查完成后，调查员须向该会作出最后调查报告。
(6) 证监会可在律政司司长的同意下，安排发表根据本条作出的报告。
条： 184 条文标题： 与调查有关的罪行 版本日期： 01/04/2003



(1) 任何人无合理辩解而没有─
(a) 交出根据第183(1)(a)条被要求交出的纪录或文件；
(b) 提供根据第183(1)(b)条被要求提供的解释或进一步详情；
(c) 遵从根据第183(1)(c)条作出的面见要求；
(d) 回答根据第183(1)(c)条提出的问题；
(e) 遵守第183(1)(d)条；或
(f) 遵从根据第183(2)或(3)条作出的要求，
即属犯罪─
(i) 一经循公诉程序定罪，可处罚款$200000及监禁1年；或
(ii) 一经循简易程序定罪，可处第5级罚款及监禁6个月。
(2) 任何人─
(a) (i) 在看来是遵从根据第183(1)(a)条施加的要求时，交出在要项上属虚假或具误导性的纪录或文件；
(ii) 在看来是遵从根据第183(1)(b)条施加的要求时，提供在要项上属虚假或具误导性的解释或进一步详情；
(iii) 在看来是回答根据第183(1)(c)条提出的问题时，说出在要项上属虚假或具误导性的话语；或
(iv) 在看来是回答根据第183(1)(d)条提出的书面问题时，作出在要项上属虚假或具误导性的陈述；且
(b) 知道该纪录、文件、解释、详情、话语或陈述(视属何情况而定)在要项上属虚假或具误导性，或罔顾该纪录、文件、解释、详情、话语或陈述(视属何情况而定)是否在要项上属虚假或具误导性，
即属犯罪─
(i) 一经循公诉程序定罪，可处罚款$1000000及监禁2年；或
(ii) 一经循简易程序定罪，可处第6级罚款及监禁6个月。
(3) 任何人─
(a) 意图诈骗而─
(i) 没有作出第(1)(a)、(b)、(c)、(d)、(e)或(f)款描述的作为；
(ii) 在看来是遵从根据第183(1)(a)条施加的要求时，交出在要项上属虚假或具误导性的纪录或文件；
(iii) 在看来是遵从根据第183(1)(b)条施加的要求时，提供在要项上属虚假或具误导性的解释或进一步详情；
(iv) 在看来是回答根据第183(1)(c)条提出的问题时，说出在要项上属虚假或具误导性的话语；或
(v) 在看来是回答根据第183(1)(d)条提出的书面问题时，作出在要项上属虚假或具误导性的陈述；或
(b) 如属法团的高级人员或雇员，意图诈骗而致使或容许该法团─
(i) 没有作出第(1)(a)、(b)、(c)、(d)、(e)或(f)款描述的作为；
(ii) 在看来是遵从根据第183(1)(a)条施加的要求时，交出在要项上属虚假或具误导性的纪录或文件；
(iii) 在看来是遵从根据第183(1)(b)条施加的要求时，提供在要项上属虚假或具误导性的解释或进一步详情；
(iv) 在看来是回答根据第183(1)(c)条提出的问题时，说出在要项上属虚假或具误导性的话语；或
(v) 在看来是回答根据第183(1)(d)条提出的书面问题时，作出在要项上属虚假或具误导性的陈述，
即属犯罪─
(i) 一经循公诉程序定罪，可处罚款$1000000及监禁7年；或
(ii) 一经循简易程序定罪，可处第6级罚款及监禁6个月。
(4) 任何人不得仅以遵从调查员根据第183条向他施加的要求可能会导致他入罪为理由，而获豁免遵从该要求。
(5) 如根据第182条进行的调查导致任何人被检控并被法庭定罪，则该法庭可命令该人向证监会缴付该项调查的全部或部分费用及开支，而该会可将全部或部分(视属何情况而定)该等费用及开支，作为拖欠该会的民事债项予以追讨。
(6) 凡证监会根据第(5)款所指的命令就调查的费用及开支接获任何款额，而所有或任何该等费用及开支是由立法会所拨款项支付的，则证监会须将该款额支付予财政司司长，但以上述拨款的款额为限。

条： 185 条文标题： 就根据第179、180、181或183条作出的要求不获遵从而向原讼法庭提出申请 版本日期： 01/04/2003



第4分部─杂项条文


(1) 如任何人没有作出获授权人根据第179、180或181条要求他作出的事情，或没有作出调查员根据第183(1)、(2)或(3)条要求他作出的事情，则该获授权人或调查员(视属何情况而定)可藉原诉传票或原诉动议，就该项不遵从向原讼法庭提出申请，而原讼法庭可查讯有关个案，如─
(a) 原讼法庭信纳该人不遵从该要求是无合理辩解的，则原讼法庭可命令该人在原讼法庭指明的期间内遵从该要求；及
(b) 原讼法庭信纳该人是在无合理辩解的情况下没有遵从该要求的，则原讼法庭可惩罚该人及明知而牵涉入该项不遵从的任何其他人，而惩罚的方式犹如该人及(如适用的话)该其他人犯藐视法庭罪一样。
(2) 第(1)款所指的原诉传票须采用《高等法院规则》(第4章，附属法例A)附录A表格10。
(3) 不论本条及本条例其他条文有任何规定─
(a) 在以下情况下，不得为施行第(1)(b)款就某行为对某人提起法律程序─
(i) 过往已根据第179、180、181或184条就同一行为对该人提起刑事法律程序；及
(ii) (A) 该刑事法律程序仍待决；或
(B) 由于过往已提起该刑事法律程序，因此不得根据该条就同一行为再次合法地对该人提起刑事法律程序；
(b) 在以下情况下，不得根据第179、180、181或184条就某行为而对某人提起刑事法律程序─
(i) 过往已为施行第(1)(b)款就同一行为对该人提起法律程序；及
(ii) (A) 该法律程序仍待决；或
(B) 由于过往已提起该法律程序，因此不得为施行该款就同一行为再次合法地对该人提起法律程序。


条： 186 条文标题： 向香港以外地方的规管者提供协助 版本日期： 01/04/2003



(1) 凡证监会接获在香港以外地方，且是该会认为符合第(5)(a)及(b)款提述的规定的主管当局或规管机构的请求，要求协助调查该当局或机构指明的人是否已违反或正违反符合以下说明的法律规定或规管性规定─
(a) 由该当局或机构执行或施行的；及
(b) 关乎由该当局或机构规管的关于任何证券、期货合约、杠杆式外汇交易合约或集体投资计划的交易或其他相类交易的，
则该会在认为第(3)款指明的条件已获符合的情况下，可藉行使第179、181、182及183条所赋权力，协助调查上述事宜。
(2) 凡证监会接获在香港以外地方，且是该会认为符合第(5)(a)及(b)款提述的规定的公司审查员的请求，要求协助调查该审查员指明的人是否已违反或正违反关于任何证券、期货合约、杠杆式外汇交易合约或集体投资计划的交易或其他相类交易的法律规定或规管性规定，则该会在认为第(3)款指明的条件已获符合的情况下，可藉行使第179、181、182及183条所赋权力，协助调查上述事宜。
(3) 第(1)及(2)款提述的条件是─
(a) 就维护投资大众的利益或公众利益而言，提供根据第(1)或(2)款(视属何情况而定)请求的协助是可取或合宜的；或
(b) 所提供的协助会使受协助者能够执行其职能或会协助受协助者执行其职能，而该等协助并不违反投资大众的利益或公众利益。
(4) 在任何个案中，证监会在断定第(3)款指明的条件是否已获符合时─
(a) 如寻求协助者属第(1)款提述的主管当局或规管机构，该会须考虑该当局或机构是否会─
(i) 向该会支付该会因提供协助而招致的任何费用及开支；及
(ii) 有能力和愿意因应香港方面提出的类似请求而在其管辖范围内提供交互协助；或
(b) 如寻求协助者属第(2)款提述的公司审查员，该会须考虑─
(i) 该审查员是否会向该会支付该会因提供协助而招致的任何费用及开支；及
(ii) 根据委任该审查员的国家或地区的法律，是否会因应香港方面提出的类似请求而提供交互协助。
(5) 凡证监会就第(1)或(2)款信纳在香港以外地方的主管当局、规管机构或公司审查员─
(a) 执行任何与该会或公司注册处处长的职能相似的职能，或规管、监管或调查银行服务、保险服务或其他财经服务或法团事务；及
(b) 已受足够保密条文规限，
则该会须随即在合理地切实可行的范围内，尽快安排在宪报刊登该当局、机构或审查员(视属何情况而定)的名称或姓名。
(6) 任何人如须─
(a) 按第179条所指的获授权人于依据第(1)或(2)款行使第179条所赋权力时作出的要求，而提供或作出解释、陈述或说明；或
(b) 按调查员于依据第(1)或(2)款行使第183条所赋权力时作出的要求，而提供解释或进一步详情，或回答调查员于如此行使该等权力时提出的问题，
而该解释或陈述或说明、该解释或详情或该答案(视属何情况而定)可能会导致该人入罪，而该人在提供或作出该解释或陈述或说明、提供该解释或详情或给予该答案(视属何情况而定)前又声称如此，则在不局限第187条的原则下，该获授权人或调查员(视属何情况而定)不得向任何在香港以外地方的主管当局、规管机构或公司审查员提供该要求及该解释或陈述或说明、该解释或详情或该问题及答案(视属何情况而定)的证据，以供在该当局、机构或审查员(视属何情况而定)的管辖范围内在针对该人而提起的刑事法律程序中使用。
(7) 凡证监会从香港以外地方的主管当局、规管机构或公司审查员接获一笔就根据本条提供协助所招致的任何费用及开支而支付的款额，而所有或任何该等费用及开支是由立法会所拨款项支付的，则证监会须将该款额支付予财政司司长，但以上述拨款的款额为限。
(8) 根据第(5)款刊登的材料不是附属法例。
(9) 在本条中，“公司审查员”(companies inspector) 就香港以外任何地方而言，指根据该地方的法律，所具有的职能包括调查在该地方经营业务的法团的事务的人。

条： 187 条文标题： 导致入罪的证据在法律程序中的使用 版本日期： 01/04/2003



(1) 凡─
(a) 第179条所指的获授权人根据该条要求任何人提供或作出解释、陈述或说明；或
(b) 调查员根据第183条要求任何人提供解释或进一步详情或回答问题，
该获授权人或调查员(视属何情况而定)须确保该人已先获告知或提醒(视属何情况而定)关于第(2)款就该要求及该解释或陈述或说明、该解释或详情或该问题及答案(视属何情况而定)作为证据的可接纳性所订下的限制。
(2) 不论本条例其他条文有任何规定，凡─
(a) 第179条所指的获授权人根据该条要求任何人提供或作出解释、陈述或说明；或
(b) 调查员根据第183条要求任何人提供解释或进一步详情或回答问题，
而该解释或陈述或说明、该解释或详情或该答案(视属何情况而定)可能会导致该人入罪，而该人在提供或作出该解释或陈述或说明、提供该解释或详情或给予该答案(视属何情况而定)前又声称如此，则该要求及该解释或陈述或说明、该解释或详情或该问题及答案(视属何情况而定)不得在法院进行的刑事法律程序中接纳为针对该人的证据，但如该人就该解释或陈述或说明、该解释或详情或该答案(视属何情况而定)而被控犯第179(13)、(14)或(15)或184条或第219(2)(a)、253(2)(a)或254(6)(a)或(b)条或《刑事罪行条例》(第200章)第V部所订罪行或被控犯作假证供罪，则就该等罪行而进行的刑事法律程序属例外。

条： 188 条文标题： 声称对纪录或文件拥有的留置权 版本日期： 01/04/2003



凡任何人管有根据本部要求交出的任何纪录或文件，而该人声称对该等纪录或文件有留置权，则─
(a) 交出该等纪录或文件的要求，并不受该留置权影响；
(b) 无须因该项交出或就该项交出而支付任何费用；及
(c) 交出该等纪录或文件并不损害该留置权。


条： 189 条文标题： 交出在资讯系统内的资料等 版本日期： 01/04/2003



凡任何资料或材料载于根据本部要求交出的纪录或文件，但并非以可阅读形式记录，则本部所授予要求交出纪录或文件的权力，包括要求交出以下述形式将该等资料或材料或其有关部分重现而制成的版本的权力─
(a) (如记录该等资料或材料的方式能使该等资料或材料以可阅读形式重现)以可阅读形式；及
(b) (如该等资料或材料记录于资讯系统)以能使该等资料或材料以可阅读形式重现的形式。

条： 190 条文标题： 查阅被检取的纪录或文件等 版本日期： 01/04/2003



凡调查员或第179、180或181条所指的获授权人根据本部管有任何纪录或文件，他须在符合他就保安或其他方面而施加的合理条件下，准许如该等纪录或文件没有根据本部被他管有便会有权查阅该等纪录或文件的人，在任何合理时间查阅该等纪录或文件，及将该等纪录或文件复印或以其他方式记录其中的细节。

条： 191 条文标题： 裁判官手令 版本日期： 01/04/2003



(1) 裁判官如根据─
(a) 证监会雇员，或(就根据第180条行使权力的情况而言)第180条所指的有关当局的雇员；或
(b) 调查员或第179或180条所指的获授权人，
经宣誓而作的告发，信纳有合理理由怀疑在该项告发指明的处所内，有或相当可能有任何纪录或文件是根据本部可要求交出的，则该裁判官可发出手令，授权警务人员、手令指明的人及为协助执行该手令而需要的其他人─
(i) 在自该手令日期起计的7日内，随时进入该处所，如有必要，可强行进入；及
(ii) 搜寻、检取和移走警务人员或该手令指明的人有合理因由相信是根据本部可要求交出的任何纪录或文件。
(2) 根据第(1)款发出的手令所指明的人或所授权的警务人员或其他人，可─
(a) 要求身处在手令指明的处所内而他有合理因由相信是在与正在或曾经在该处所经营的业务有关连的情况下受雇的人，交出该人所管有而他有合理因由相信是根据本部可要求交出的任何纪录或文件，以供查验；
(b) 禁止在手令指明的处所内发现的人─
(i) 将根据(a)段要求交出的任何纪录或文件移离该处所；
(ii) 删除、增添或以其他方式更改载于该等纪录或文件的记项或其他详情，或以任何方式干扰该等纪录或文件，或致使或准许其他人干扰该等纪录或文件；
(c) 就任何根据(a)段要求交出的纪录或文件采取任何他觉得属必要的其他步骤，以保存该等纪录或文件及防止它受干扰。
(3) 根据本条移走的纪录或文件可在自移走当日起计的6个月内予以保留，如该等纪录或文件为刑事法律程序或根据本条例提起的法律程序所需要，或可能为该等程序所需要，则可为该等法律程序的目的而保留所需的较长期间。
(4) 凡任何人根据本条移走任何纪录或文件，该人须随即在合理地切实可行的范围内尽快为此发出收据，并可准许如该等纪录或文件没有被移走便会有权查阅该等纪录或文件的人，在任何合理时间查阅该等纪录或文件，及将该等纪录或文件复印或以其他方式记录其中的细节。
(5) 《刑事诉讼程序条例》(第221章)第102条适用于已凭借本条归证监会或(就根据第180条行使权力的情况而言)第180条所指的有关当局管有的财产，一如该条适用于已归警方管有的财产。
(6) 任何人─
(a) 无合理辩解而没有遵从根据第(2)款作出的要求或禁止；或
(b) 妨碍任何人行使第(2)款授予的权力，
即属犯罪。
(7) 任何人犯第(6)款所订罪行─
(a) 一经循公诉程序定罪，可处罚款$1000000及监禁2年；或
(b) 一经循简易程序定罪，可处第6级罚款及监禁6个月。


条： 192 条文标题： 文件的销毁等 版本日期： 01/04/2003



(1) 任何人意图向根据本部要求交出任何纪录或文件的人隐瞒可由该等纪录或文件披露的事实或事情，而销毁、揑改、隐藏或以其他方式处置该等纪录或文件，或致使或准许他人作出该等作为，即属犯罪。
(2) 任何人犯第(1)款所订罪行─
(a) 一经循公诉程序定罪，可处罚款$1000000及监禁2年；或
(b) 一经循简易程序定罪，可处第6级罚款及监禁6个月。

Section: 193 Heading: Interpretation of Part IX Version Date: 14/12/2007


PART IX

DISCIPLINE, ETC.

Division 1-Interpretation

(1) In this Part, unless the context otherwise requires-
"misconduct" (失当行为) means-
(a) a contravention of any of the relevant provisions;
(b) a contravention of any of the terms and conditions of any licence or registration under this Ordinance;
(c) a contravention of any other condition imposed under or pursuant to any provision of this Ordinance, or of any condition attached or amended under section 71C(2)(b) or (9) or 71E(3) of the Banking Ordinance (Cap 155); or
(d) an act or omission relating to the carrying on of any regulated activity for which a person is licensed or registered which, in the opinion of the Commission, is or is likely to be prejudicial to the interest of the investing public or to the public interest,
and "guilty of misconduct" (犯失当行为) shall be construed accordingly;
"register of companies" (公司登记册) means the register within the meaning of section 291 of the Companies Ordinance (Cap 32) or a register of non-Hong Kong companies kept under section 333AA of that Ordinance. (Added 30 of 2004 s. 3)
(2) In this Part, where an intermediary is, or was at any time, guilty of misconduct within the meaning of paragraph (a), (b), (c) or (d) of the definition of "misconduct" in subsection (1) as a result of the commission of any conduct occurring with the consent or connivance of, or attributable to any neglect on the part of-
(a) in the case of a licensed corporation, another person as-
(i) a responsible officer of the licensed corporation; or
(ii) a person involved in the management of the business of the licensed corporation; or
(b) in the case of a registered institution, another person as-
(i) an executive officer of the registered institution; or
(ii) a person involved in the management of the business constituting any regulated activity for which the registered institution is or was (as the case may be) registered,
the conduct shall also be regarded as misconduct on the part of that other person, and "guilty of misconduct" shall also be construed accordingly.
(3) For the purposes of paragraph (d) of the definition of "misconduct" in subsection (1), the Commission shall not form any opinion that any act or omission is or is likely to be prejudicial to the interest of the investing public or to the public interest, unless it has had regard to such of the provisions set out in any code of conduct published under section 169 or any code or guideline published under section 399 as are in force at the time of occurrence of, and applicable in relation to, the act or omission.
(Amended 30 of 2004 s. 3)

Section: 194 Heading: Disciplinary action in respect of licensed persons, etc. Version Date: 01/04/2003


Division 2-Discipline, etc.

(1) Subject to section 198, where-
(a) a regulated person is, or was at any time, guilty of misconduct; or
(b) the Commission is of the opinion that a regulated person is not a fit and proper person to be or to remain the same type of regulated person,
the Commission may exercise such of the following powers as it considers appropriate in the circumstances of the case-
(i) where the regulated person is a licensed person-
(A) revoke his licence, whether in relation to all or any, or any part of all or any, of the regulated activities for which he is licensed; or
(B) suspend his licence, whether in relation to all or any, or any part of all or any, of the regulated activities for which he is licensed for such period or until the occurrence of such event as the Commission may specify;
(ii) where the regulated person is a responsible officer of a licensed corporation-
(A) revoke the approval granted under section 126(1) in respect of him as such a responsible officer; or
(B) suspend such approval for such period or until the occurrence of such event as the Commission may specify;
(iii) publicly or privately reprimand the regulated person;
(iv) prohibit the regulated person from doing all or any of the following in relation to such regulated activity or regulated activities, and for such period or until the occurrence of such event, as the Commission may specify-
(A) applying to be licensed or registered;
(B) applying to be approved under section 126(1) as a responsible officer of a licensed corporation;
(C) applying to be given consent to act or continue to act as an executive officer of a registered institution under section 71C of the Banking Ordinance (Cap 155);
(D) seeking through a registered institution to have his name entered in the register maintained by the Monetary Authority under section 20 of the Banking Ordinance (Cap 155) as that of a person engaged by the registered institution in respect of a regulated activity.
(2) Subject to sections 198 and 199, where-
(a) a regulated person is, or was at any time, guilty of misconduct; or
(b) the Commission is of the opinion that a regulated person is not a fit and proper person to be or to remain the same type of regulated person,
the Commission may, separately or in addition to any power exercisable under subsection (1), order the regulated person to pay a pecuniary penalty not exceeding the amount which is the greater of-
(i) $10000000; or
(ii) 3 times the amount of the profit gained or loss avoided by the regulated person as a result of his misconduct, or of his other conduct which leads the Commission to form the opinion (as the case may be).
(3) The Commission, in determining whether a regulated person is a fit and proper person within the meaning of subsection (1)(b) or (2)(b), may, among other matters (including those specified in section 129), take into account such present or past conduct of the regulated person as it considers appropriate in the circumstances of the case.
(4) A regulated person ordered to pay a pecuniary penalty under subsection (2) shall pay the penalty to the Commission within 30 days, or such further period as the Commission may specify by notice under section 198(3), after the order has taken effect as a specified decision under section 232.
(5) The Court of First Instance may, on an application of the Commission made in the manner prescribed by rules made under section 397 for the purposes of this subsection, register an order made under subsection (2) in the Court of First Instance and the order shall, on registration, be regarded for all purposes as an order of the Court of First Instance made within the civil jurisdiction of the Court of First Instance for the payment of money.
(6) Any pecuniary penalty paid to or recovered by the Commission pursuant to an order made under subsection (2) shall be paid by the Commission into the general revenue.
(7) In this section-
"regulated person" (受规管人士) means a person who is or at the relevant time was any of the following types of person-
(a) a licensed person;
(b) a responsible officer of a licensed corporation; or
(c) a person involved in the management of the business of a licensed corporation;
"relevant time" (有关时间), in relation to a person, means-
(a) where subsection (1)(a) or (2)(a) applies, the time when the person is, or was, guilty of misconduct; or
(b) where subsection (1)(b) or (2)(b) applies, the time of occurrence of any matter which, whether with any other matter or not, leads the Commission to form the opinion that the person is not a fit and proper person within the meaning of such subsection.


Section: 195 Heading: Other circumstances for disciplinary actions in respect of licensed persons, etc. Version Date: 01/04/2003


(1) Subject to section 198, the Commission may revoke a licensed person's licence, whether in relation to all or any, or any part of all or any, of the regulated activities for which he is licensed, or suspend a licensed person's licence, whether in relation to all or any, or any part of all or any, of the regulated activities for which he is licensed for such period or until the occurrence of such event as the Commission may specify, if-
(a) where the licensed person is an individual-
(i) the licensed person enters into a voluntary arrangement with creditors, or has a bankruptcy order made against him, under the Bankruptcy Ordinance (Cap 6);
(ii) the licensed person fails to satisfy a levy of execution;
(iii) the licensed person has been found by a court to be mentally incapacitated, or is detained in a mental hospital, under the Mental Health Ordinance (Cap 136), which in the opinion of the Commission impugns the fitness and properness of the licensed person to remain licensed; or
(iv) the licensed person is convicted of an offence (other than an offence under any of the relevant provisions) in Hong Kong or elsewhere, which in the opinion of the Commission impugns the fitness and properness of the licensed person to remain licensed;
(b) where the licensed person is a corporation-
(i) a receiver or manager of the property or business of the licensed person is appointed;
(ii) the licensed person fails to satisfy a levy of execution;
(iii) the licensed person enters into a compromise or scheme of arrangement with its creditors;
(iv) the licensed person goes into liquidation or is ordered to be wound up;
(v) the licensed person is convicted of an offence (other than an offence under any of the relevant provisions) in Hong Kong or elsewhere, which in the opinion of the Commission impugns the fitness and properness of the licensed person to remain licensed;
(vi) any of the directors of the licensed person has been found by a court to be mentally incapacitated, or is detained in a mental hospital, under the Mental Health Ordinance (Cap 136), which in the opinion of the Commission impugns the fitness and properness of the licensed person to remain licensed; or
(vii) any of the directors of the licensed person is convicted of an offence (other than an offence under any of the relevant provisions) in Hong Kong or elsewhere, which in the opinion of the Commission impugns the fitness and properness of the licensed person to remain licensed;
(c) the licensed person does not carry on the regulated activity or regulated activities, or the part of regulated activity or regulated activities, to which the revocation or suspension (as the case may be) relates; or
(d) the licensed person requests the Commission to so revoke or suspend the licence.
(2) Subject to section 198, but without limiting the generality of subsection (1), the Commission may revoke a licensed person's licence in relation to Type 7 regulated activity or any part thereof if-
(a) the Commission has required under section 118(1)(c) that the licensed person should apply for an authorization under section 95(2) for that regulated activity; and
(b) (i) the licensed person has failed to make an application for the authorization under section 95(2) in accordance with the requirement, or has otherwise informed the Commission that he proposes not to make an application for the authorization under section 95(2); or
(ii) the licensed person has made an application for the authorization under section 95(2), but the application is not granted.
(3) A licence shall be deemed to be revoked if-
(a) where the licensed person is an individual, the licensed person dies; or
(b) where the licensed person is a corporation, the licensed person is wound up, struck off the register of companies or is otherwise dissolved.
(4) Subject to subsection (5), a licence shall be deemed to be suspended if-
(a) the licensed person fails to make full payment of any annual fee payable by him under section 138, or any additional sum payable by him under that section as a result of any default in making full payment of any annual fee payable by him under that section, within 3 months after the due date for payment of the annual fee under that section; or
(b) the licensed person fails to submit an annual return required to be submitted by him under section 138 within 3 months after the due date for submission of the annual return under that section,
and, subject to subsection (6), the suspension shall remain in force until such time as the Commission considers it appropriate that the licence should no longer be suspended and informs the licensed person to that effect by notice in writing.
(5) A licence shall not be regarded as suspended under subsection (4) unless and until-
(a) in the case of a suspension under subsection (4)(a) by reference to any failure to make full payment of any annual fee or additional sum, the Commission has, by notice in writing given not less than 10 business days before the suspension is to take effect, informed the licensed person of the requirement to make full payment of the annual fee or additional sum (as the case may be), and of the consequence of the failure to comply with the requirement under this section; or
(b) in the case of a suspension under subsection (4)(b) by reference to any failure to submit an annual return, the Commission has, by notice in writing given not less than 10 business days before the suspension is to take effect, informed the licensed person of the requirement to submit the annual return, and of the consequence of the failure to comply with the requirement under this section.
(6) Where a licence is suspended under subsection (4) and the event described in subsection (4)(a) or (b) (as the case may be) has not been remedied within 30 days after the day on which the suspension becomes effective under subsection (4), or such further period as the Commission may specify by notice in writing to the licensed person, the licence shall be deemed to be revoked.
(7) Subject to section 198, where a person who is a responsible officer of a licensed corporation is convicted of an offence (other than an offence under any of the relevant provisions) in Hong Kong or elsewhere, which in the opinion of the Commission impugns the fitness and properness of the person to remain such a responsible officer, the Commission may-
(a) revoke the approval granted under section 126(1) in respect of the person as such a responsible officer; or
(b) suspend such approval for such period or until the occurrence of such event as the Commission may specify.


Section: 196 Heading: Disciplinary action in respect of registered institutions, etc. Version Date: 01/04/2003


(1) Subject to section 198, where-
(a) a regulated person is, or was at any time, guilty of misconduct; or
(b) the Commission is of the opinion that a regulated person is not a fit and proper person to be or to remain the same type of regulated person,
the Commission may exercise such of the following powers as it considers appropriate in the circumstances of the case-
(i) where the regulated person is a registered institution-
(A) revoke its registration, whether in relation to all or any, or any part of all or any, of the regulated activities for which it is registered; or
(B) suspend its registration, whether in relation to all or any, or any part of all or any, of the regulated activities for which it is registered for such period or until the occurrence of such event as the Commission may specify;
(ii) publicly or privately reprimand the regulated person;
(iii) prohibit the regulated person from doing all or any of the following in relation to such regulated activity or regulated activities, and for such period or until the occurrence of such event, as the Commission may specify-
(A) applying to be licensed or registered;
(B) applying to be approved under section 126(1) as a responsible officer of a licensed corporation;
(C) applying to be given consent to act or continue to act as an executive officer of a registered institution under section 71C of the Banking Ordinance (Cap 155);
(D) seeking through a registered institution to have his name entered in the register maintained by the Monetary Authority under section 20 of the Banking Ordinance (Cap 155) as that of a person engaged by the registered institution in respect of a regulated activity.
(2) Subject to sections 198 and 199, where-
(a) a regulated person is, or was at any time, guilty of misconduct; or
(b) the Commission is of the opinion that a regulated person is not a fit and proper person to be or to remain the same type of regulated person,
the Commission may, separately or in addition to any power exercisable under subsection (1), order the regulated person to pay a pecuniary penalty not exceeding the amount which is the greater of-
(i) $10000000; or
(ii) 3 times the amount of the profit gained or loss avoided by the regulated person as a result of his misconduct, or of his other conduct which leads the Commission to form the opinion (as the case may be).
(3) The Commission, in determining whether a regulated person is a fit and proper person within the meaning of subsection (1)(b) or (2)(b), may, among other matters (including those specified in section 129), take into account such present or past conduct of the regulated person as it considers appropriate in the circumstances of the case.
(4) A regulated person ordered to pay a pecuniary penalty under subsection (2) shall pay the penalty to the Commission within 30 days, or such further period as the Commission may specify by notice under section 198(3), after the order has taken effect as a specified decision under section 232.
(5) The Court of First Instance may, on an application of the Commission made in the manner prescribed by rules made under section 397 for the purposes of this subsection, register an order made under subsection (2) in the Court of First Instance and the order shall, on registration, be regarded for all purposes as an order of the Court of First Instance made within the civil jurisdiction of the Court of First Instance for the payment of money.
(6) Any pecuniary penalty paid to or recovered by the Commission pursuant to an order made under subsection (2) shall be paid by the Commission into the general revenue.
(7) Without prejudice to the exercise by the Monetary Authority of any powers under the Banking Ordinance (Cap 155), the Commission may make such recommendations to the Monetary Authority in respect of the exercise by the Monetary Authority of any of his powers under sections 58A(1) and 71C(4) of that Ordinance as the Commission considers appropriate.
(8) In this section-
"regulated person" (受规管人士) means a person who is or at the relevant time was any of the following types of person-
(a) a registered institution;
(b) an executive officer of a registered institution;
(c) a person involved in the management of the business constituting any regulated activity for which a registered institution is or was (as the case may be) registered; or
(d) an individual whose name is or was (as the case may be) entered in the register maintained by the Monetary Authority under section 20 of the Banking Ordinance (Cap 155) as that of a person engaged by a registered institution in respect of a regulated activity;
"relevant time" (有关时间), in relation to a person, means-
(a) where subsection (1)(a) or (2)(a) applies, the time when the person is, or was, guilty of misconduct; or
(b) where subsection (1)(b) or (2)(b) applies, the time of occurrence of any matter which, whether with any other matter or not, leads the Commission to form the opinion that the person is not a fit and proper person within the meaning of such subsection.


Section: 197 Heading: Other circumstances for disciplinary action in respect of registered institutions, etc. Version Date: 01/04/2003


(1) Subject to section 198, the Commission may revoke a registered institution's registration, whether in relation to all or any, or any part of all or any, of the regulated activities for which it is registered, or suspend a registered institution's registration, whether in relation to all or any, or any part of all or any, of the regulated activities for which it is registered for such period or until the occurrence of such event as the Commission may specify-
(a) if-
(i) a receiver or manager of the property or business of the registered institution is appointed;
(ii) the registered institution fails to satisfy a levy of execution;
(iii) the registered institution enters into a compromise or scheme of arrangement with its creditors;
(iv) the registered institution goes into liquidation or is ordered to be wound up;
(v) the registered institution is convicted of an offence (other than an offence under any of the relevant provisions) in Hong Kong or elsewhere, which in the opinion of the Commission impugns the fitness and properness of the registered institution to remain registered;
(b) if the registered institution does not carry on the regulated activity or regulated activities, or the part of regulated activity or regulated activities, to which the revocation or suspension (as the case may be) relates; or
(c) if the registered institution requests the Commission to so revoke or suspend the registration.
(2) Subject to section 198, but without limiting the generality of subsection (1), the Commission may revoke a registered institution's registration in relation to Type 7 regulated activity or any part thereof if-
(a) the Commission has required under section 119(8)(b) that the registered institution should apply for an authorization under section 95(2) for that regulated activity; and
(b) (i) the registered institution has failed to make an application for the authorization under section 95(2) in accordance with the requirement, or has otherwise informed the Commission that it proposes not to make an application for the authorization under section 95(2); or
(ii) the registered institution has made an application for the authorization under section 95(2), but the application is not granted.
(3) The registration of a registered institution shall be deemed to be revoked if-
(a) the registered institution ceases to be an authorized financial institution; or
(b) the registered institution is wound up, struck off the register of companies or is otherwise dissolved.
(4) Subject to subsection (5), the registration of a registered institution shall be deemed to be suspended if the registered institution fails to make full payment of any annual fee payable by it under section 138, or any additional sum payable by it under that section as a result of any default in making full payment of any annual fee payable by it under that section, within 3 months after the due date for payment of the annual fee under that section, and, subject to subsection (6), the suspension shall remain in force until such time as the Commission considers it appropriate that the registration should no longer be suspended and informs the registered institution to that effect by notice in writing.
(5) Any registration shall not be regarded as suspended under subsection (4) by reference to any failure to make full payment of any annual fee or additional sum, unless and until the Commission has, by notice in writing given not less than 10 business days before the suspension is to take effect, informed the registered institution of the requirement to make full payment of the annual fee or additional sum (as the case may be), and of the consequence of the failure to comply with the requirement under this section.
(6) Where any registration is suspended under subsection (4) and the failure to make full payment of the annual fee or additional sum described in that subsection has not been remedied within 30 days after the day on which the suspension becomes effective under that subsection, or such further period as the Commission may specify by notice in writing to the registered institution, the registration shall be deemed to be revoked.

Section: 198 Heading: Procedural requirements in respect of exercise of powers under Part IX Version Date: 01/04/2003


Division 3-Miscellaneous

(1) The Commission shall not exercise any power under section 194(1) or (2), 195(1)(a), (b) or (c), (2) or (7), 196(1) or (2) or 197(1)(a) or (b) or (2) without first giving the person in respect of whom the power is to be exercised a reasonable opportunity of being heard.
(2) The Commission shall not exercise any power under section 196(1) or (2) or 197(1) or (2) unless it has first consulted the Monetary Authority.
(3) Where the Commission decides to exercise any power under section 194(1) or (2), 195(1), (2) or (7), 196(1) or (2) or 197(1) or (2), the Commission shall inform the person in respect of whom the power is exercised of its decision to do so by notice in writing, and the notice shall include-
(a) a statement of the reasons for which the decision is made;
(b) the time at which the decision is to take effect;
(c) in so far as applicable, the duration and terms of any revocation, suspension or prohibition to be imposed under the decision;
(d) in so far as applicable, the terms in which the person is to be reprimanded under the decision; and
(e) in so far as applicable, the amount of any pecuniary penalty to be imposed under the decision and the period (being specified as a period after the decision has taken effect as a specified decision under section 232) within which it is required to be paid.


Section: 199 Heading: Guidelines for performance of functions under section 194(2) or 196(2) Version Date: 01/04/2003


(1) The Commission shall not perform any of its functions under section 194(2) or 196(2) unless-
(a) it has published, in the Gazette and in any other manner it considers appropriate, guidelines to indicate the manner in which it proposes to perform such functions; and
(b) in performing such functions, it has had regard to the guidelines so published.
(2) Without prejudice to the inclusion of any other factors that the Commission may consider relevant, guidelines published under subsection (1) shall include the following as factors that the Commission shall take into account in performing any of its functions under section 194(2) or 196(2)-
(a) whether the conduct of the regulated person in question was intentional, reckless or negligent;
(b) whether the conduct damaged the integrity of the securities and futures market;
(c) whether the conduct caused loss to, or imposed costs on, any other person; and
(d) whether the conduct resulted in a benefit to the regulated person or any other person.
(3) Guidelines published under subsection (1) are not subsidiary legislation.

Section: 200 Heading: Effect of suspension under Part IX Version Date: 01/04/2003


(1) If a licence of a person is suspended under section 194 or 195 in relation to all or any, or any part of all or any, of the regulated activities for which the person is licensed, then, without prejudice to any provision of this Ordinance which has application in relation to the suspension, the person shall, during the period of the suspension-
(a) continue to be regarded for the purposes of the provisions of this Ordinance, but not section 114, to be licensed for the regulated activity or regulated activities, or the part of regulated activity or regulated activities, to which the suspension relates; and
(b) without limiting the generality of paragraph (a), continue to be required to comply with such provisions of this Ordinance relating to a licensed person as would apply to the person were the licence not so suspended.
(2) If an approval of a person as a responsible officer of a licensed corporation is suspended under section 194 or 195, then, without prejudice to any provision of this Ordinance which has application in relation to the suspension, the person shall, during the period of the suspension-
(a) continue to be regarded for the purposes of the provisions of this Ordinance, but not sections 118 and 125, to be such a responsible officer; and
(b) without limiting the generality of paragraph (a), continue to be required to comply with such provisions of this Ordinance relating to a responsible officer as would apply to the person were the approval not so suspended.
(3) If any registration of a person is suspended under section 196 or 197 in relation to all or any, or any part of all or any, of the regulated activities for which the person is registered, then, without prejudice to any provision of this Ordinance which has application in relation to the suspension, the person shall, during the period of the suspension-
(a) continue to be regarded for the purposes of the provisions of this Ordinance, but not section 114, to be registered for the regulated activity or regulated activities, or the part of regulated activity or regulated activities, to which the suspension relates; and
(b) without limiting the generality of paragraph (a), continue to be required to comply with such provisions of this Ordinance relating to a registered institution as would apply to the person were the registration not so suspended.
(4) A licence of a person may be revoked under section 194 or 195 notwithstanding that, at the time of revocation, the licence is suspended, whether in relation to all or any, or any part of all or any, of the regulated activities for which the person is licensed, under any provision of this Ordinance.
(5) An approval of a person as a responsible officer of a licensed corporation may be revoked under section 194 or 195 notwithstanding that, at the time of revocation, the approval is suspended under any provision of this Ordinance.
(6) Any registration of a person may be revoked under section 196 or 197 notwithstanding that, at the time of revocation, the registration is suspended, whether in relation to all or any, or any part of all or any, of the regulated activities for which the person is registered, under any provision of this Ordinance.

Section: 201 Heading: General provisions relating to exercise of powers under Part IX Version Date: 01/04/2003


(1) In reaching a decision under section 194(1) or (2), 195(1), (2) or (7), 196(1) or (2) or 197(1) or (2), the Commission may have regard to any information or material in its possession which is relevant to the decision, regardless of how the information or material has come into its possession.
(2) The revocation or suspension of any licence or registration under this Part does not operate so as to-
(a) avoid or affect an agreement, transaction or arrangement entered into by the licensed person or registered institution (as the case may be) whether the agreement, transaction or arrangement was entered into before or after the revocation or suspension;
(b) affect a right, obligation or liability arising under the agreement, transaction or arrangement.
(3) Where at any time the Commission is contemplating exercising any power in respect of a person under section 194(1) or (2), 195(1)(a), (b) or (c), (2) or (7), 196(1) or (2) or 197(1)(a) or (b) or (2), it may, where it considers it appropriate to do so in the interest of the investing public or in the public interest, by agreement with the person-
(a) exercise any power the Commission may exercise in respect of the person under this Part (whether or not the same as the power the exercise of which has been contemplated); and
(b) take such additional action as it considers appropriate in the circumstances of the case.
(4) Where the Commission exercises any power or takes any additional action in respect of a person under subsection (3)-
(a) it shall comply with section 198(2) and (3), as if section 198(2) and (3), in addition to applying to the exercise of power under the sections specified therein, also applies with necessary modifications to the taking of any additional action under subsection (3); and
(b) subject to the agreement of the person, it is not obliged to comply with section 198(1).
(5) Nothing in this Part affects the power of the Court of First Instance to make any order or exercise any other power under or pursuant to section 211, 212, 213 or 214.

Section: 202 Heading: Requirement to transfer records upon revocation or suspension of licence or registration Version Date: 01/04/2003


(1) Where any licence or registration is revoked or suspended under this Part, the Commission may by notice in writing require the person to whom the licence or registration (as the case may be) was granted to transfer to, or to the order of, his client such records relating to client assets or to the affairs of the client held at any time for the client, in such manner, as the Commission may reasonably specify in the notice.
(2) A person who, without reasonable excuse, fails to comply with a requirement imposed on him under subsection (1) commits an offence and is liable on conviction to a fine of $200000 and to imprisonment for 2 years.
(3) In this section, "client" (客户), in relation to a person referred to in subsection (1), means any person who, at any time when the first-mentioned person was an intermediary, was a client of the first-mentioned person under the definition of "client" in section 1 of Part 1 of Schedule 1.


Section: 203 Heading: Permission to carry on business operations upon revocation or suspension of licence or registration Version Date: 01/04/2003


(1) Where any licence or registration is revoked or suspended under this Part, the Commission may by notice in writing permit the person to whom the licence or registration (as the case may be) was granted to-
(a) in the case of a revocation, carry on business operations for the purpose of closing down the business connected with the revocation; or
(b) in the case of a suspension, carry on only essential business operations for the protection of interests of clients of the person or, in the case of a licensed representative, of the licensed corporation to which the person is accredited, during the period of suspension,
subject to such conditions as the Commission may specify in the notice.
(2) Notwithstanding section 200(1), where the Commission has granted a permission to a person under subsection (1), the person shall not, by reason of its carrying on business operations in accordance with the permission, be regarded as having contravened section 114.
(3) Any permission granted under subsection (1), and the imposition of conditions pursuant to that subsection, take effect at the time of the service of the notice given in respect thereof or at the time specified in the notice, whichever is the later.