TABLE
Item Application pending at
commencement of Part V
of this Ordinance To be treated as
application for
a licence
1. For registration as a dealer under the repealed Securities Ordinance, by-
(a) a corporation (a) Under section 116(1) of this Ordinance for Type 1, Type 4, Type 6, Type 7 and Type 9 regulated activities, or any one or more of them, as may be applicable
(b) an individual (b) Under section 120(1) of this Ordinance for Type 1, Type 4, Type 6, Type 7 and Type 9 regulated activities, or any one or more of them, as may be applicable
2. For registration as an investment adviser under the repealed Securities Ordinance, by-
(a) a corporation (a) Under section 116(1) of this Ordinance for Type 4, Type 6 and Type 9 regulated activities, or any one or more of them, as may be applicable
(b) an individual (b) Under section 120(1) of this Ordinance for Type 4, Type 6 and Type 9 regulated activities, or any one or more of them, as may be applicable
3. For registration as a dealer's representative under the repealed Securities Ordinance Under section 120(1) of this Ordinance for Type 1, Type 4, Type 6, Type 7 and Type 9 regulated activities, or any one or more of them, as may be applicable
4. For registration as an investment representative under the repealed Securities Ordinance Under section 120(1) of this Ordinance for Type 4, Type 6 and Type 9 regulated activities, or any one or more of them, as may be applicable
5. For registration as a dealer under the repealed Commodities Trading Ordinance, by-
(a) a corporation (a) Under section 116(1) of this Ordinance for Type 2, Type 5, Type 7 and Type 9 regulated activities, or any one or more of them, as may be applicable
(b) an individual (b) Under section 120(1) of this Ordinance for Type 2, Type 5, Type 7 and Type 9 regulated activities, or any one or more of them, as may be applicable
6. For registration as a commodity trading adviser under the repealed Commodities Trading Ordinance, by-
(a) a corporation (a) Under section 116(1) of this Ordinance for Type 5 and Type 9 regulated activities, or any one of them, as may be applicable
(b) an individual (b) Under section 120(1) of this Ordinance for Type 5 and Type 9 regulated activities, or any one of them, as may be applicable
7. For registration as a dealer's representative under the repealed Commodities Trading Ordinance Under section 120(1) of this Ordinance for Type 2, Type 5, Type 7 and Type 9 regulated activities, or any one or more of them, as may be applicable
8. For registration as a commodity trading adviser's representative under the repealed Commodities Trading Ordinance Under section 120(1) of this Ordinance for Type 5 and Type 9 regulated activities, or any one of them, as may be applicable
9. For a licence as a leveraged foreign exchange trader under the repealed Leveraged Foreign Exchange Trading Ordinance Under section 116(1) of this Ordinance for Type 3 regulated activity
10. For a licence as a representative under the repealed Leveraged Foreign Exchange Trading Ordinance Under section 120(1) of this Ordinance for Type 3 regulated activity
11. For registration as a securities margin financier under the repealed Securities Ordinance Under section 116(1) of this Ordinance for Type 8 regulated activity
12. For registration as a securities margin financier's representative under the repealed Securities Ordinance Under section 120(1) of this Ordinance for Type 8 regulated activity
(2) Where-
(a) an application is made before the commencement of Part V of this Ordinance for a declaration as an exempt dealer under the repealed Securities Ordinance; and
(b) immediately before such commencement the application has not been granted, refused or withdrawn,
the application shall, upon such commencement-
(i) where the applicant is an authorized financial institution, be treated as an application under section 119(1) of this Ordinance for registration for Type 1, Type 4, Type 6 and Type 9 regulated activities; or
(ii) where the applicant is not an authorized financial institution, be treated as an application under section 116(1) of this Ordinance for Type 1, Type 4, Type 6 and Type 9 regulated activities.
(3) Where-
(a) an application is made before the commencement of Part V of this Ordinance for a declaration as an exempt investment adviser under the repealed Securities Ordinance; and
(b) immediately before such commencement the application has not been granted, refused or withdrawn,
the application shall, upon such commencement-
(i) where the applicant is an authorized financial institution, be treated as an application under section 119(1) of this Ordinance for registration for Type 4, Type 6 and Type 9 regulated activities; or
(ii) where the applicant is not an authorized financial institution, be treated as an application under section 116(1) of this Ordinance for Type 4, Type 6 and Type 9 regulated activities.
Part VI of this Ordinance (Capital requirements,
client assets, records and audit relating
to intermediaries)
61. Where-
(a) before the commencement of Part VI of this Ordinance, any power could have been, but was not, exercised under-
(i) section 52 or 53 of the repealed Commodities Trading Ordinance;
(ii) section 90, 91, 121AW or 121AX of the repealed Securities Ordinance; or
(iii) section 33 or 34 of the repealed Leveraged Foreign Exchange Trading Ordinance; or
(b) before such commencement any power has been exercised under any of the provisions referred to in paragraph (a)(i), (ii) and (iii), and the exercise of the power would, but for the enactment of this Ordinance, continue to have force and effect on or after such commencement,
then-
(i) (A) where paragraph (a) applies, the power may be exercised; or
(B) where paragraph (b) applies, the exercise of the power shall continue to have force and effect,
as if this Ordinance had not been enacted; and
(ii) the provisions of the repealed Commodities Trading Ordinance, the repealed Securities Ordinance or the repealed Leveraged Foreign Exchange Trading Ordinance (as the case may be) shall continue to apply to the exercise of the power and to any matters relating thereto (including any further exercise of power) as if this Ordinance had not been enacted.
Part VIII of this Ordinance (Supervision and investigations)
62. Where-
(a) before the commencement of Part VIII of this Ordinance, any power could have been, but was not, exercised under-
(i) section 29A, 30, 31, 33 or 36 of the repealed Securities and Futures Commission Ordinance; or
(ii) section 12, 41, 42, 44 or 47 of the repealed Leveraged Foreign Exchange Trading Ordinance; or
(b) before such commencement any power has been exercised under any of the provisions referred to in paragraph (a)(i) and (ii), and the exercise of the power would, but for the enactment of this Ordinance, continue to have force and effect on or after such commencement,
then-
(i) (A) where paragraph (a) applies, the power may be exercised; or
(B) where paragraph (b) applies, the exercise of the power shall continue to have force and effect,
as if this Ordinance had not been enacted; and
(ii) the provisions of the repealed Securities and Futures Commission Ordinance or the repealed Leveraged Foreign Exchange Trading Ordinance (as the case may be) shall continue to apply to the exercise of the power and to any matters relating thereto (including any further exercise of power) as if this Ordinance had not been enacted.
63. Without prejudice to section 62, section 179 of this Ordinance applies even if-
(a) in the case of subsection (1)(a), (b), (c), (d) or (e) of that section 179, the matter described in such subsection as being suggested by the circumstances referred to in such subsection has occurred, or appears to the Commission as occurring, before the commencement of Part VIII of this Ordinance; or
(b) in the case of subsection (1)(f) of that section 179, the matter in respect of the investigation of which the Commission decides to provide assistance under section 186 of this Ordinance has occurred, or appears to the Commission as occurring, before such commencement.
Part IX of this Ordinance (Discipline, etc.)
64. Where-
(a) before the commencement of Part IX of this Ordinance, any power could have been, but was not, exercised under-
(i) section 35 or 36 of the repealed Commodities Trading Ordinance;
(ii) section 55, 56, 60(5), 61(2), 121R, 121S, 121T, 121U, 121V or 121X of the repealed Securities Ordinance; or
(iii) section 11 or 12 of the repealed Leveraged Foreign Exchange Trading Ordinance; or
(b) before such commencement any power has been exercised under any of the provisions referred to in paragraph (a)(i), (ii) and (iii), and the exercise of the power would, but for the enactment of this Ordinance, continue to have force and effect on or after such commencement,
then-
(i) (A) where paragraph (a) applies, the power may be exercised; or
(B) where paragraph (b) applies, the exercise of the power shall continue to have force and effect,
as if this Ordinance had not been enacted; and
(ii) subject to section 66, the provisions of the repealed Commodities Trading Ordinance, the repealed Securities Ordinance or the repealed Leveraged Foreign Exchange Trading Ordinance (as the case may be) and the repealed Securities and Futures Commission Ordinance (where applicable) shall continue to apply to the exercise of the power and to any appeals and other matters relating thereto (including any further exercise of power) as if this Ordinance had not been enacted.
65. Where-
(a) the exercise of any power under section 64 results in the revocation of any declaration of exemption or the revocation or suspension of any registration or licence of any person, or the suspension of any such registration or licence continues to have force and effect by virtue of that section; and
(b) the person has, by reason of the declaration or registration or licence referred to in paragraph (a), been deemed under any of the provisions of sections 22 to 37 to have been registered or licensed under this Ordinance,
the registration or licence of the person under this Ordinance shall, notwithstanding sections 22 to 37, be regarded as having been revoked or suspended (as the case may be) on the same terms and conditions on which the declaration or registration or licence referred to in paragraph (a) is revoked or suspended, and sections 200(1) to (3), 201(2) and (5), 202 and 203 of this Ordinance shall apply, with necessary modifications, in relation to the revocation or suspension as if it were a revocation or suspension under Part IX of this Ordinance.
66. Where, but for this section, the exercise of any power under section 64 would have been subject to appeal to the Securities and Futures Appeals Panel established by section 18 of the repealed Securities and Futures Commission Ordinance, an application for review to the Securities and Futures Appeals Tribunal, but not such appeal to the Securities and Futures Appeals Panel, may be made in respect of the exercise of the power and disposed of in all respects as if the exercise of the power were a specified decision as defined in section 215 of and section 1 of Schedule 8 to this Ordinance, and the other provisions of this Ordinance shall, with necessary modifications, apply accordingly.
Part X of this Ordinance (Powers of intervention
and proceedings)
67. Where-
(a) before the commencement of Part X of this Ordinance, any power could have been, but was not, exercised under-
(i) section 39, 40, 41 or 43 of the repealed Securities and Futures Commission Ordinance; or
(ii) section 50, 51, 52 or 54 of the repealed Leveraged Foreign Exchange Trading Ordinance; or
(b) before such commencement any power has been exercised under any of the provisions referred to in paragraph (a)(i) and (ii), and the exercise of the power would, but for the enactment of this Ordinance, continue to have force and effect on or after such commencement,
then-
(i) (A) where paragraph (a) applies, the power may be exercised; or
(B) where paragraph (b) applies, the exercise of the power shall continue to have force and effect,
as if this Ordinance had not been enacted; and
(ii) subject to section 68, the provisions of the repealed Securities and Futures Commission Ordinance or both the repealed Securities and Futures Commission Ordinance and the repealed Leveraged Foreign Exchange Trading Ordinance (as the case may be) shall continue to apply to the exercise of the power and to any appeals and other matters relating thereto (including any further exercise of power) as if this Ordinance had not been enacted.
68. Where, but for this section, the exercise of any power under section 67 would have been subject to appeal to the Securities and Futures Appeals Panel established by section 18 of the repealed Securities and Futures Commission Ordinance, an application for review to the Securities and Futures Appeals Tribunal, but not such appeal to the Securities and Futures Appeals Panel, may be made in respect of the exercise of the power and disposed of in all respects as if the exercise of the power were a specified decision as defined in section 215 of and section 1 of Schedule 8 to this Ordinance, and the other provisions of this Ordinance shall, with necessary modifications, apply accordingly.
69. Section 214 of this Ordinance applies even if the conduct of business or affairs in question has occurred, or appears to the Commission as occurring, before the commencement of Part X of this Ordinance.
Part XI of this Ordinance (Securities and
Futures Appeals Tribunal)
70. Where a person has made an appeal to the Securities and Futures Appeals Panel before the commencement of Part XI of this Ordinance under-
(a) Part III of the repealed Securities and Futures Commission Ordinance; or
(b) Part IX of the repealed Leveraged Foreign Exchange Trading Ordinance,
and the appeal has not been finally determined before such commencement, the appeal may be continued and disposed of in all respects (and, without limiting the generality of the foregoing, any power to appoint any person as a member (whether as the chairman, deputy chairman or other member) of the Securities and Futures Appeals Panel or as a member of a tribunal appointed under any of the provisions referred to in paragraphs (a) and (b) may be exercised for the purposes of the appeal) as if this Ordinance had not been enacted.
71. Where-
(a) before the commencement of Part XI of this Ordinance an appeal has not been made to the Securities and Futures Appeals Panel under-
(i) Part III of the repealed Securities and Futures Commission Ordinance; or
(ii) Part IX of the repealed Leveraged Foreign Exchange Trading Ordinance; and
(b) the time within which the appeal may be made under such Part is running and has not expired upon such commencement,
the appeal may be made to the Securities and Futures Appeals Panel and disposed of in all respects (and, without limiting the generality of the foregoing, any power to appoint any person as a member (whether as the chairman, deputy chairman or other member) of the Securities and Futures Appeals Panel or as a member of a tribunal appointed under any of the provisions referred to in paragraph (a)(i) and (ii) may be exercised for the purposes of the appeal) as if this Ordinance had not been enacted.
72. Where, by virtue of section 70 or 71, any appeal is or is to be made or continued, and disposed of, under-
(a) Part III of the repealed Securities and Futures Commission Ordinance; or
(b) Part IX of the repealed Leveraged Foreign Exchange Trading Ordinance,
then, without limiting the generality of sections 70 and 71 (including the exercise of the power to appoint any person as a member (whether as the chairman, deputy chairman or other member) of the Securities and Futures Appeals Panel established by section 18 of the repealed Securities and Futures Commission Ordinance or as a member of a tribunal appointed under any of the provisions referred to in paragraphs (a) and (b))-
(i) any person who immediately before the commencement of Part XI of this Ordinance holds any office as a member (whether as the chairman, deputy chairman or other member) of the Securities and Futures Appeals Panel or as a member of the tribunal to determine the appeal shall, for the purposes of the appeal, continue to hold the same office on the same terms and conditions as if this Ordinance had not been enacted; and
(ii) the Securities and Futures Appeals Panel and the tribunal shall, for the purposes of the appeal, continue in existence as if this Ordinance had not been enacted.
Part XII of this Ordinance (Investor compensation)
73. (1) In sections 74 to 76-
"Futures Exchange Compensation Fund" (期交所赔偿基金) and "Unified Exchange Compensation Fund" (联交所赔偿基金) have the meanings respectively assigned to them in section 235 of this Ordinance;
"repealed Commodities Trading Rules" (已废除的《商品交易规则》) means the Commodities Trading (Dealers, Commodity Trading Advisers and Representatives) Rules (Cap 250 sub. leg. A) repealed under section 406 of this Ordinance;
"repealed Contract Levy Rules" (已废除的《合约征费规则》) means the Commodities Trading (Contract Levy) Rules (Cap 250 sub. leg. C) repealed under section 406 of this Ordinance;
"repealed Securities Rules" (已废除的《证券规则》) means the Securities (Miscellaneous) Rules (Cap 333 sub. leg. A) repealed under section 406 of this Ordinance.
(2) For the avoidance of doubt, it is hereby declared that nothing in sections 74 to 76 shall be construed as enabling a claim to be made which is barred under any enactment or rule of law.
Unified Exchange Compensation Fund
74. (1) Despite the repeals effected by section 406 of this Ordinance, Part X of the repealed Securities Ordinance shall, subject to this section, continue to apply to and in relation to-
(a) any claim for compensation from the Unified Exchange Compensation Fund made under that Part before the appointed day; or
(b) any default occurring before the appointed day,
as if that section had not been enacted, subject to the following modifications-
(i) section 112 of that Part X shall cease to apply as from the appointed day;
(ii) for any reference to the Unified Exchange, there shall be substituted a reference to a recognized stock market within the meaning of this Ordinance;
(iii) for any reference to the Exchange Company, there shall be substituted a reference to the Stock Exchange Company within the meaning of this Ordinance;
(iv) the expression "dealing in securities" shall be construed in accordance with Part 2 of Schedule 5 to this Ordinance; and
(v) the expressions "exchange participant", "listed", "securities" and "trading right" shall respectively be construed in accordance with this Ordinance.
(2) The Commission may after the appointed day pay into the compensation fund such sum of money from the Unified Exchange Compensation Fund as it considers appropriate, having regard to-
(a) the amounts which the Commission considers to be necessary to meet any claims or likely claims against the Unified Exchange Compensation Fund; and
(b) the amounts deposited in cash under section 104 of the repealed Securities Ordinance, which have not previously been reimbursed under this section.
(3) Where the Commission considers that the amount at credit in the Unified Exchange Compensation Fund exceeds the total amount which the Commission considers to be necessary to meet any claims or likely claims against the Unified Exchange Compensation Fund, the Commission may after the appointed day apply the excess to reimburse the Stock Exchange Company or, if the Stock Exchange Company is in liquidation, the liquidator of the Stock Exchange Company, for the amounts deposited in cash under section 104 of the repealed Securities Ordinance.
(4) As soon as reasonably practicable after the appointed day, the Stock Exchange Company shall publish in one or more English language newspapers and one or more Chinese language newspapers, published daily and circulating generally in Hong Kong, a notice specifying a date, not being earlier than 3 months after the publication of the notice, on or before which a claim for compensation from the Unified Exchange Compensation Fund may be made by any person.
(5) Where, in respect of a default occurring prior to the appointed day, a person wishes to start a claim for compensation from the Unified Exchange Compensation Fund, he shall lodge his claim in writing with the Stock Exchange Company-
(a) if a notice under subsection (4) has been published, on or before the date specified in the notice; or
(b) if no such notice has been published, within 6 months after he became aware of the default giving rise to the claim.
(6) A claim made under subsection (5) shall be regarded as a claim made under section 109 of the repealed Securities Ordinance and other provisions of Part X of that Ordinance shall apply accordingly.
(7) A claim that is not made within the time limited by subsection (5) shall, unless the Stock Exchange Company otherwise determines, be barred.
(8) After-
(a) all claims made or continued under this section have been disposed of; and
(b) all outstanding liabilities against the Unified Exchange Compensation Fund have been satisfied,
the Commission shall apply any balance remaining in the Fund in accordance with subsection (9).
(9) Any balance mentioned in subsection (8) shall-
(a) be used to reimburse the Stock Exchange Company or, if the Stock Exchange Company is in liquidation, the liquidator of the Stock Exchange Company, for the amounts deposited in cash under section 104 of the repealed Securities Ordinance, which have not previously been reimbursed under this section; and
(b) if there is any remaining balance, be paid into the compensation fund.
(10) Upon any reimbursement referred to in subsection (3) or (9)(a), the amount of the reimbursement shall form part of the assets of the Stock Exchange Company and, if it is in liquidation, shall be available to the liquidator for distribution in accordance with the Companies Ordinance (Cap 32).
(11) Where a claim for compensation from the Unified Exchange Compensation Fund is allowed (whether in full or in part) but the amount allowed cannot be paid to the claimant because the Commission is unable to locate the claimant, then the Commission shall hold for the claimant the amount allowed for 3 years beginning with the date on which the claim is allowed, after which time the Commission shall apply the amount in accordance with subsection (9).
(12) Except as provided in this section, no claim for compensation from the Unified Exchange Compensation Fund may be made after the appointed day.
*(13) The Secretary for Financial Services and the Treasury may by notice published in the Gazette appoint a date as the appointed day for the purposes of this section. (Amended L.N. 106 of 2002) * [Note: 1 April 2003 was the day appointed under this subsection - see L.N. 14 of 2003.]
(14) In this section-
"appointed day" (指定日期) means the date appointed under subsection (13);
"default" (违责) means an act referred to in section 109(1) of the repealed Securities Ordinance.
Futures Exchange Compensation Fund
75. (1) Despite the repeals effected by section 406 of this Ordinance, Part VIII of the repealed Commodities Trading Ordinance and the repealed Contract Levy Rules shall, subject to this section, continue to apply to and in relation to-
(a) any claim for compensation from the Futures Exchange Compensation Fund made under that Part before the appointed day; or
(b) any default occurring before the appointed day,
as if that section had not been enacted, subject to the following modifications-
(i) section 89 of that Part VIII shall cease to apply as from the appointed day;
(ii) for any reference to the Commodity Exchange, there shall be substituted a reference to a recognized futures market within the meaning of this Ordinance;
(iii) for any reference to the Exchange Company, there shall be substituted a reference to the Futures Exchange Company within the meaning of this Ordinance; and
(iv) the expressions "exchange participant", "futures contracts" and "trading right" shall respectively be construed in accordance with this Ordinance.
(2) The Commission may after the appointed day pay into the compensation fund such sum of money from the Futures Exchange Compensation Fund as it considers appropriate, having regard to-
(a) the amounts which the Commission considers to be necessary to meet any claims or likely claims against the Futures Exchange Compensation Fund; and
(b) the amounts deposited in cash under section 82 of the repealed Commodities Trading Ordinance, which have not previously been reimbursed under this section.
(3) Where the Commission considers that the amount at credit in the Futures Exchange Compensation Fund exceeds the total amount which the Commission considers to be necessary to meet any claims or likely claims against the Futures Exchange Compensation Fund, the Commission may after the appointed day apply the excess to reimburse the Futures Exchange Company or, if the Futures Exchange Company is in liquidation, the liquidator of the Futures Exchange Company, for the amounts deposited in cash under section 82 of the repealed Commodities Trading Ordinance.
(4) As soon as reasonably practicable after the appointed day, the Futures Exchange Company shall publish in one or more English language newspapers and one or more Chinese language newspapers, published daily and circulating generally in Hong Kong, a notice specifying a date, not being earlier than 3 months after the publication of the notice, on or before which a claim for compensation from the Futures Exchange Compensation Fund may be made by any person.
(5) Where, in respect of a default occurring prior to the appointed day, a person wishes to start a claim for compensation from the Futures Exchange Compensation Fund, he shall lodge his claim in writing with the Futures Exchange Company-
(a) if a notice under subsection (4) has been published, on or before the date specified in the notice; or
(b) if no such notice has been published, within 6 months after he became aware of the default giving rise to the claim.
(6) A claim made under subsection (5) shall be regarded as a claim made under section 87 of the repealed Commodities Trading Ordinance and other provisions of Part VIII of that Ordinance shall apply accordingly.
(7) A claim that is not made within the time limited by subsection (5) shall, unless the Futures Exchange Company otherwise determines, be barred.
(8) After-
(a) all claims made or continued under this section have been disposed of; and
(b) all outstanding liabilities against the Futures Exchange Compensation Fund have been satisfied,
the Commission shall apply any balance remaining in the Fund in accordance with subsection (9).
(9) Any balance mentioned in subsection (8) shall-
(a) be used to reimburse the Futures Exchange Company or, if the Futures Exchange Company is in liquidation, the liquidator of the Futures Exchange Company, for the amounts deposited in cash under section 82 of the repealed Commodities Trading Ordinance, which have not previously been reimbursed under this section; and
(b) if there is any remaining balance, be paid into the compensation fund.
(10) Upon any reimbursement referred to in subsection (3) or (9)(a), the amount of the reimbursement shall form part of the assets of the Futures Exchange Company and, if it is in liquidation, shall be available to the liquidator for distribution in accordance with the Companies Ordinance (Cap 32).
(11) Where a claim for compensation from the Futures Exchange Compensation Fund is allowed (whether in full or in part) but the amount allowed cannot be paid to the claimant because the Commission is unable to locate the claimant, then the Commission shall hold for the claimant the amount allowed for 3 years beginning with the date on which the claim is allowed, after which time the Commission shall apply the amount in accordance with subsection (9).
(12) Except as provided in this section, no claim for compensation from the Futures Exchange Compensation Fund may be made after the appointed day.
*(13) The Secretary for Financial Services and the Treasury may by notice published in the Gazette appoint a date as the appointed day for the purposes of this section. (Amended L.N. 106 of 2002) * [Note: 1 April 2003 was the day appointed under this subsection - see L.N. 15 of 2003.]
(14) In this section-
"appointed day" (指定日期) means the date appointed under subsection (13);
"default" (违责) means a default referred to in section 87(1) of the repealed Commodities Trading Ordinance.
Dealers Deposit Scheme
76. (1) Despite the repeals effected by section 406 of this Ordinance-
(a) sections 52 (except subsections (1), (1A) and (6)) and 52A of the repealed Securities Ordinance;
(b) rules 2, 4, 5 and 6 (other than rule 6(4)) of the repealed Securities Rules;
(c) section 33 of the repealed Commodities Trading Ordinance; and
(d) Part III (other than rule 15(5)) of the repealed Commodities Trading Rules,
shall, subject to this section, continue to apply for the purposes of this section as if that section 406 had not been enacted.
(2) Where, prior to the appointed day-
(a) there arises any of the circumstances described in section 52(2) or (11) of the repealed Securities Ordinance or section 33(1) or (11) of the repealed Commodities Trading Ordinance; and
(b) no transfer, payment, forfeiture or application for release of the deposit (as the case may be) paid or deposited by the dealer concerned has been made pursuant to either of those sections,
then such transfer, payment, forfeiture or application for release and any subsequent application of such deposit may be made under the applicable provisions specified in subsection (1).
(3) A claim for compensation made before the appointed day in respect of a default occurring prior to that day that has not been disposed of may be continued and disposed of under subsection (1).
(4) As soon as reasonably practicable after the appointed day, the Commission shall publish in one or more English language newspapers and one or more Chinese language newspapers, published daily and circulating generally in Hong Kong, a notice specifying a date, not being earlier than 3 months after the publication of the notice, on or before which a claim for compensation against the deposit forfeited under section 52(2)(c) of the repealed Securities Ordinance or section 33(1)(c) of the repealed Commodities Trading Ordinance may be made.
(5) Where, in respect of a default occurring prior to the appointed day, a person wishes to start a claim for compensation against any deposit referred to in subsection (4), he shall lodge his claim in writing with the Commission-
(a) if a notice under subsection (4) has been published, on or before the date specified in the notice; or
(b) if no such notice has been published, within 6 months after he became aware of the default giving rise to the claim.
(6) A claim made under subsection (5) shall be regarded as a claim made under rule 6(5) of the repealed Securities Rules or rule 15(6) of the repealed Commodities Trading Rules (as the case may be), and other provisions of the Rules shall apply accordingly.
(7) A claim that is not made within the time limited by subsection (5) shall, unless the Commission otherwise determines, be barred.
(8) Where a claim made or continued under this section is not allowed or the amount or amounts determined to be payable as compensation do not exceed the amount of the deposit, the Commission shall repay the deposit to which the claim relates or the remaining balance of the deposit (as the case may be) to the dealer concerned.
(9) Where-
(a) a deposit made under section 52 of the repealed Securities Ordinance or section 31 of the repealed Commodities Trading Ordinance has not been or is not required to be disposed of under the Ordinance; and
(b) the deposit is not required to be disposed of under this section,
the Commission shall repay the deposit to the dealer concerned.
(10) Where a claim made or continued under this section is allowed (whether in full or in part) but the amount allowed cannot be paid to the claimant because the Commission is unable to locate the claimant, then the Commission shall hold for the claimant the amount allowed for 3 years beginning with the date on which the claim is allowed, after which time the Commission shall repay the amount to the dealer concerned.
(11) Where-
(a) a deposit or its remaining balance is required to be repaid to a dealer under subsection (8) or (9) or any amount is required to be repaid to a dealer under subsection (10); but
(b) the Commission is unable to locate the dealer for the purpose of repayment during the period of 3 years beginning with-
(i) in the case of subsection (8), the date of the determination of the claim;
(ii) in the case of subsection (9), the appointed day; or
(iii) in the case of subsection (10), the end of the 3-year period referred to in that subsection,
the Commission shall pay the deposit or the remaining balance or the amount (as the case may be) to the compensation fund.
(12) Except as provided in this section, no claim for compensation may be made against any deposit forfeited under section 52(2)(c) of the repealed Securities Ordinance or section 33(1)(c) of the repealed Commodities Trading Ordinance after the appointed day.
(13) The Secretary for Financial Services and the Treasury may by notice published in the Gazette appoint a date as the appointed day for the purposes of this section. (Amended L.N. 106 of 2002)
(14) In this section-
"appointed day" (指定日期) means the date appointed under subsection (13);
"default" (违责) means a default referred to in rule 6(2) of the repealed Securities Rules or rule 15(2) of the repealed Commodities Trading Rules.
Part XIII of this Ordinance (Market Misconduct Tribunal)
77. Where-
(a) the repealed Securities (Insider Dealing) Ordinance would but for the enactment of this Ordinance have effect with respect to an insider dealing within the meaning of the repealed Securities (Insider Dealing) Ordinance; and
(b) the insider dealing has taken place before the commencement of Part XIII of this Ordinance,
and the Financial Secretary has before the commencement of Part XIII of this Ordinance instituted an inquiry with reference to the insider dealing under section 16(2) of the repealed Securities (Insider Dealing) Ordinance, then the repealed Securities (Insider Dealing) Ordinance shall continue to have application in connection with the insider dealing and with any inquiry, appeal, and other matters relating thereto (including, without limiting the generality of the foregoing, the exercise of any power to appoint any person as a member (whether as the chairman or other member) or as a temporary member of the Insider Dealing Tribunal referred to in section 15 of that Ordinance for the purposes of any inquiry relating thereto) as if this Ordinance had not been enacted.
78. Where-
(a) the repealed Securities (Insider Dealing) Ordinance would but for the enactment of this Ordinance have effect with respect to an insider dealing within the meaning of the repealed Securities (Insider Dealing) Ordinance; and
(b) the insider dealing has in whole or in part taken place before the commencement of Part XIII of this Ordinance,
but the Financial Secretary has not before the commencement of Part XIII of this Ordinance instituted an inquiry with reference to the insider dealing under section 16(2) of the repealed Securities (Insider Dealing) Ordinance, then the repealed Securities (Insider Dealing) Ordinance shall continue to have application in connection with the insider dealing and with any inquiry, appeal, and other matters relating thereto (including, without limiting the generality of the foregoing, the exercise of any power to appoint any person as a member (whether as the chairman or other member) or as a temporary member of the Insider Dealing Tribunal referred to in section 15 of that Ordinance for the purposes of any inquiry relating thereto) as if-
(i) this Ordinance had not been enacted; and
(ii) the repealed Securities (Insider Dealing) Ordinance had been amended in the manner described in section 80.
79. For the purposes of section 78, where-
(a) a series of conduct has taken place, partly before the commencement of Part XIII of this Ordinance, and partly on or after such commencement;
(b) apart from this section, such series of conduct-
(i) by reason of the part that has taken place before the commencement of Part XIII of this Ordinance, would constitute one or more insider dealing taking place under the repealed Securities (Insider Dealing) Ordinance by reference to information which constitutes relevant information within the meaning of section 9(1)(a), (b), (c), (d), (e) or (f) or (2) of the repealed Securities (Insider Dealing) Ordinance; and
(ii) by reason of the part that has taken place on or after the commencement of Part XIII of this Ordinance, would but for the enactment of this Ordinance also constitute one or more insider dealing taking place under the repealed Securities (Insider Dealing) Ordinance by reference to information which constitutes relevant information within the meaning of section 9(1)(a), (b), (c), (d), (e) or (f) or (2) of the repealed Securities (Insider Dealing) Ordinance; and
(c) the information referred to in paragraph (b)(i) and (ii) is the same or substantially the same information,
the series of conduct shall be regarded as constituting an insider dealing within the meaning of section 78 which has in part taken place before the commencement of Part XIII of this Ordinance.
80. Where section 78 applies, the repealed Securities (Insider Dealing) Ordinance shall apply as if it had been amended-
(a) by adding-
"27A. Recommendations to Financial Secretary to institute inquiry
At the conclusion of any inquiry or as soon as is reasonably practicable thereafter, where it appears to the Tribunal that insider dealing has taken place or may have taken place by reference to the conduct of any person, it may, where it considers appropriate, recommend the Financial Secretary to institute an inquiry under section 16 to inquire into the matter.";
(b) in the Schedule, in paragraph 17, by adding ", at the first sitting of the Tribunal relating to the inquiry," after "shall determine".
81. Where, by virtue of section 77 or 78, any inquiry is or is to be instituted or continued, and disposed of, under the repealed Securities (Insider Dealing) Ordinance, then, without limiting the generality of sections 77 and 78 (including the exercise of the power to appoint any person as a member (whether as the chairman or other member) or as a temporary member of the Insider Dealing Tribunal referred to in section 15 of that Ordinance)-
(a) any person who immediately before the commencement of Part XIII of this Ordinance holds any office as a member (whether as the chairman or other member) or as a temporary member of the Insider Dealing Tribunal shall, for the purposes of the inquiry, continue to hold the same office on the same terms and conditions as if this Ordinance had not been enacted; and
(b) the Insider Dealing Tribunal shall, for the purposes of the inquiry, continue in existence as if this Ordinance had not been enacted.
Part XV of this Ordinance (Disclosure of Interests)
82. The repeal of the Securities (Disclosure of Interests) Ordinance (Cap 396) shall not affect any duty of disclosure or duty to give notification that has arisen under that Ordinance, and such duty shall be performed in accordance with that Ordinance as if this Ordinance had not been enacted, whether or not-
(a) a duty of disclosure or duty to give notification in respect of the same subject matter (or part thereof) has arisen under this Ordinance; or
(b) the duty referred to in paragraph (a) has been performed in accordance with this Ordinance.
83. Any exemption that is granted under section 2A of the repealed Securities (Disclosure of Interests) Ordinance and is in effect immediately before the commencement of Part XV of this Ordinance shall, upon such commencement, continue to have effect and be deemed to have been granted, subject to the same conditions as were applicable had this Ordinance not been enacted, under section 309 of this Ordinance.
84. Where an application has been made under the repealed Securities (Disclosure of Interests) Ordinance but has not been finally determined before the commencement of Part XV of this Ordinance, the application shall, upon such commencement, continue to be dealt with in accordance with that Ordinance as if this Ordinance had not been enacted.
85. Any restrictions imposed, or any orders made, by the court or the Financial Secretary (as the case may be) under the repealed Securities (Disclosure of Interests) Ordinance and are in effect immediately before the commencement of Part XV of this Ordinance shall, upon such commencement, continue to have effect as if this Ordinance had not been enacted.
86. Where an investigation is carried out under the repealed Securities (Disclosure of Interests) Ordinance but has not been concluded before the commencement of Part XV of this Ordinance-
(a) any power that is exercisable under that Ordinance for the purposes of the investigation shall, upon such commencement, remain exercisable as if this Ordinance had not been enacted; and
(b) the provisions of the repealed Securities (Disclosure of Interests) Ordinance shall continue to apply to the exercise of the power and to any other matters relating thereto as if this Ordinance had not been enacted.
87. Any register (including any part of it and any index) or report that is kept or maintained under the repealed Securities (Disclosure of Interests) Ordinance immediately before the commencement of Part XV of this Ordinance shall, upon such commencement, be regarded as kept under this Ordinance and, subject to section 88, the relevant provisions of this Ordinance relating to the keeping and inspection of such register or report (as the case may be) shall apply, and the penalty for non-compliance with such provisions may be imposed, accordingly.
88. Where a register (including any part of it and any index) or report is kept or maintained under the repealed Securities (Disclosure of Interests) Ordinance immediately before the commencement of Part XV of this Ordinance, and such register or report is required to be kept, or any entry of such register is not to be removed, under that Ordinance until the elapse of 6 years, the 6-year period shall be computed in accordance with the relevant provisions of that Ordinance as if this Ordinance had not been enacted.
General
89. Where any rules have been published in the Gazette for the purposes of section 28(2) of the Interpretation and General Clauses Ordinance (Cap 1), as rules made by the Commission under any provision of this Ordinance, after the enactment of this Ordinance but before the commencement of Part XVI of this Ordinance, section 398(1) to (3) of this Ordinance shall for all purposes be deemed to have been complied with in relation to those rules.
90. For the purposes of section 399 of this Ordinance-
(a) the code published by the Commission as the Code on Takeovers and Mergers and in use immediately before the commencement of Part XVI of this Ordinance; and
(b) the code published by the Commission as the Code on Share Repurchases and in use immediately before such commencement,
shall upon such commencement be regarded as the codes published under section 399(2)(a) and (b) respectively of this Ordinance, and the provisions of this Ordinance shall apply to the codes accordingly.
91. Where-
(a) any provision of an Ordinance repealed under section 406 of this Ordinance provides for the issue, giving or service to, on or by the Commission of any document (whether described as a notice or otherwise) or information;
(b) the document or information has been issued, given or served to, on or by the Commission under or pursuant to the provision; and
(c) any provision in this Ordinance also provides for the issue, giving or service to, on or by the Commission of the document or information,
the document or information shall be deemed to have been issued, given or served to, on or by the Commission under or pursuant to such provision in this Ordinance.
92. Where-
(a) any period of time specified for the purposes of any provision ("repealed provision") of an Ordinance repealed under section 406 of this Ordinance is running at the time of the repeal of the repealed provision; and
(b) there is a provision ("corresponding provision") in this Ordinance which in the opinion of the Commission corresponds to the repealed provision,
then, in reckoning the period of time for the purposes of the corresponding provision, this Ordinance shall have effect on the basis that-
(i) the period of time specified for the purposes of the repealed provision is to apply, whether or not any other period of time is specified for the purposes of the corresponding provision; and
(ii) subject to paragraph (i), the corresponding provision had come into operation when the period of time, which is to apply under paragraph (i), began to run.
93. Except as otherwise provided in this Part, any judicial proceedings commenced under, or by virtue of the performance of any function conferred by, any provision of an Ordinance repealed under section 406 of this Ordinance, and pending or otherwise not finally determined at the time of the repeal of the provision may after the repeal be continued and disposed of in all respects as if this Ordinance had not been enacted.
PART 2
CONSEQUENTIAL AND SUPPLEMENTAL AMENDMENTS
(Omitted as spent)
