(Ord. No. 28 of 2012)Companies Ordinance：Part 19 Investigations and Enquiries-(Hong Kong)Companies Ordinance-Gold Brand Consulting

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(Hong Kong)Companies Ordinance

(Ord. No. 28 of 2012)Companies Ordinance：Part 19 Investigations and Enquiries 2013-10-24 14:35:17 Release　Author：　Read Flow：2951次

Division 1

Preliminary
838.
Interpretation
(1) In this Part—
agent (代理人), in relation to a company, includes—
(a) a banker or solicitor of the company; and
(b) a person, whether an officer of the company or not,
who is engaged as an auditor of the company;
authorized institution (认可机构) has the meaning given by
section 2(1) of the Banking Ordinance (Cap. 155);
books (簿册) includes accounts and accounting information,
however compiled or stored, and whether or not recorded
in a legible form;
delegate (获转授人)—
(a) in relation to an inspector, means a person to whom
the inspector has delegated any power under section
850(1);
(b) in relation to the Financial Secretary, means a person
to whom the Financial Secretary has delegated any
power under section 870;
(c) in relation to the Registrar, means a public officer to
whom the Registrar has delegated any power under
section 874;
document (文件) means—

(a) any register, books or tape recording;
(b) any input or output, in whatever form, into or from an
information system; and
(c) any other document or similar material (whether
produced mechanically, electronically, magnetically,
optically, manually or by any other means);
information (资料) includes—
(a) data, text, images, sound codes, computer programmes,
software and databases; and
(b) any combination of the things mentioned in paragraph
(a);
inspector (审查員) means—
(a) a person appointed under section 840 or 841 to
investigate a company’s affairs; or
(b) a person appointed under section 853 to continue an
investigation;
officer (高级人员), in relation to a body corporate, means a
director, manager or company secretary of, or any other
person involved in the management of, the body corporate;
record (记录) means any record of information (however
compiled or stored) and includes—
(a) any books, deed, contract, agreement, voucher and
receipt;
(b) any document or other material used with or produced
by an information system;
(c) any information that is recorded otherwise than in a
legible form but is capable of being reproduced in a
legible form;(d) any document, disc, tape, sound track or other device
in which sounds or other data (not being visual
images) are embodied so as to be capable (with or
without the aid of other equipment) of being
reproduced; and
(e) any film (including a microfilm), disc, tape or other
device in which visual images are embodied so as to be
capable (with or without the aid of other equipment)
of being reproduced.
(2) For the purposes of this Part, a body corporate is an
associated body corporate of a company if—
(a) the body corporate and the company are members of
the same group of companies; or
(b) the body corporate and the company are substantially
controlled by the same person.
Division 2
Investigation of Company’s Affairs by Inspectors
Subdivision 1
Preliminary
839.
Interpretation
In this Division—
company (公司)—
(a) in section 840, includes a registered non-Hong Kong
company;
(b) in section 841, includes a non-Hong Kong company;
final report (最终报告) means the final report mentioned in
section 856;interim report (中期报告) means the interim report mentioned in
section 855;
investigation (调查) means an investigation into a company’s
affairs under section 840 or 841.
Subdivision 2
Appointment by Financial Secretary of Inspectors to
Investigate Company’s Affairs
840.
Appointment of inspector on application by company or members
(1) The Financial Secretary may, on application by a company,
appoint a person to investigate the company’s affairs if the
company has by special resolution declared that the
company’s affairs ought to be so investigated.
(2) The Financial Secretary may also appoint a person to
investigate a company’s affairs—
(a) for a company having a share capital, on application
by—
(i) at least 100 members; or
(ii) members holding at least 10% of the shares
issued; or
(b) for a company not having a share capital, on
application by at least 10% in number of the persons
on the company’s register of members.
(3) An application for the purposes of subsection (1) or (2)
must be supported by the evidence required by the
Financial Secretary to show that the applicant has good
reason for requesting the investigation.(4) The Financial Secretary must not appoint a person under
subsection (1) or (2) to investigate a company’s affairs
unless the Financial Secretary is satisfied that it is in the
public interest to do so.
(5) The
Financial
Secretary
may,
before
making
an
appointment under subsection (1) or (2), require an
applicant for an appointment under subsection (1) or (2)
to give security for the payment of the expenses of the
investigation, in an amount specified by the Financial
Secretary.
841.
Appointment of inspector on Court’s or Financial Secretary’s
initiative
(1) The Financial Secretary must appoint a person to
investigate a company’s affairs if the Court by order
declares that the company’s affairs ought to be so
investigated.
(2) The Financial Secretary may appoint a person to
investigate a company’s affairs if it appears to the Financial
Secretary that there are circumstances suggesting that—
(a) the company was formed for a fraudulent or unlawful
purpose;
(b) the company’s affairs are being or have been
conducted—
(i) in a manner unfairly prejudicial to the interests
of its members generally or of one or more
members;
(ii) with intent to defraud its creditors or the creditors
of any other person; or
(iii) for any other fraudulent or unlawful purpose; or(c) the persons concerned with the formation of the
company or the management of its affairs have, in
relation to the formation or management, engaged in
fraud, misfeasance or other misconduct towards it, its
members or its creditors.
(3) The Financial Secretary must not appoint a person under
subsection (2) to investigate a company’s affairs unless the
Financial Secretary is satisfied that it is in the public
interest to do so.
(4) The Financial Secretary may appoint a person under
subsection (2) to investigate a company’s affairs even
though the company is in the course of being wound up
voluntarily.
842.
Notice of appointment as inspector to be delivered to Registrar
(1) A person who is appointed as an inspector under section
840 or 841 must deliver a notice of the appointment to the
Registrar for registration.
(2) The notice must be delivered to the Registrar within 15
days after the date of the appointment and must be in the
specified form.
Subdivision 3
Financial Secretary’s Powers to Give Directions to Inspectors
843.
General power of Financial Secretary to give directions regarding
investigation
(1) The Financial Secretary may give directions to an inspector
regarding an investigation.
(2) The Financial Secretary may give directions under this
section—(a) on the Financial Secretary’s own initiative; or
(b) at the request of the inspector.
(3) The Financial Secretary may vary or revoke any directions
given under this section.
844.
Financial Secretary may give directions regarding subject matter
of investigation etc.
(1) Without limiting section 843, the Financial Secretary may
give directions to an inspector with respect to any or all of
the following—
(a) the terms or subject matter of the investigation (whether
by reference to a specified area of a company’s
operation, a specified transaction, a specified period
of time or otherwise);
(b) the matters the inspector must take into account or
must not take into account in conducting the
investigation;
(c) the steps the inspector must take or must not take in
conducting the investigation.
(2) Without limiting section 843, the Financial Secretary may
also give directions to an inspector to require that the
interim report or final report of the investigation—
(a) is to include the inspector’s opinion with respect to a
specified matter;
(b) is not to make reference to a specified matter;
(c) is to be made in a specified form or manner; or
(d) is to be completed by a specified date.
(3) In this section—
specified (指明) means specified in directions given under this
section.845.
Financial Secretary may give directions to terminate or suspend
investigation
(1) Without limiting section 843, the Financial Secretary may,
at any time before the completion of an investigation,
direct the inspector—
(a) to terminate the investigation; or
(b) to suspend the investigation for a period as specified
by the Financial Secretary.
(2) If the inspector is appointed under section 841(1), the
Financial Secretary must not give directions under
subsection (1)(a) unless—
(a) it appears to the Financial Secretary that—
(i) matters have come to light in the course of the
investigation which suggest that a criminal offence
under the laws of Hong Kong has been
committed; and
(ii) those matters have been referred to a law
enforcement agency; or
(b) the giving of the directions is approved by the Court.
Subdivision 4
Inspectors’ Powers
846.
Inspector may require production of records and documents etc.
(1) An inspector appointed to investigate a company’s affairs
may, by notice in writing, require any of the persons
specified in subsection (2) to do any or all of the
following—
(a) produce, within the time and at the place specified in
the notice, any record or document specified in the
notice that—(i) is or may be relevant to the investigation; and
(ii) is in the person’s custody or power;
(b) take all reasonable steps to preserve the record or
document before it is produced to the inspector;
(c) attend before the inspector at the time and place
specified in the notice, and answer any question,
whether on oath or otherwise, relating to any matter
under investigation that the inspector may raise with
the person;
(d) answer any question relating to any matter under
investigation that is specified in the notice;
(e) give the inspector all other assistance in connection
with the investigation that the person is reasonably
able to give.
(2) The persons are—
(a) the company;
(b) an officer or former officer of the company;
(c) an agent or former agent of the company;
(d) a person whom the inspector has reasonable grounds
to believe—
(i) to be in possession of any record or document
that contains, or is likely to contain, information
relevant to the investigation; or
(ii) otherwise to be in possession of that information.
(3) An inspector must not require an authorized institution
to produce any record or document, or disclose any
information, relating to the affairs of a customer of the
institution under subsection (1) unless—
(a) the inspector has reasonable grounds to believe that
the customer may be able to provide information
relevant to the investigation; and(b) the inspector is satisfied that the production or
disclosure is necessary for the purposes of the
investigation and so certifies in writing.
(4) In subsection (1)(b), a reference to preserving a record or
document includes preventing a person from—
(a) removing, disposing of or destroying the record or
document;
(b) erasing, adding to or altering in any other manner an
entry or other particulars contained in the record or
document; or
(c) interfering in any other manner with, or causing or
permitting any other person to interfere with, the
record or document.
(5) An inspector may administer an oath to any person for the
purposes of subsection (1)(c).
847.
Inspector may require production of director’s accounts
(1) If an inspector appointed to investigate a company’s affairs
has reasonable grounds to believe that a director or former
director of the company maintains or has maintained an
account specified in subsection (2), the inspector may, by
notice in writing, require the director or former director to
produce to the inspector all documents relating to the
account that are in the possession, or under the control, of
the director or former director.
(2) The account is one of whatever description maintained by
the director or former director (whether alone or jointly
with any other person) with a bank, deposit-taking
company or similar financial institution (whether in Hong
Kong or elsewhere), into or out of which there has been
paid—(a) any emolument, retirement benefit or compensation in
respect of the directorship, particulars of which are
not contained in the notes to the financial statements
of the company for any financial year, contrary to
section 383;
(b) any loan or quasi-loan in favour of the director or
former director, or any money that has resulted from
or has been used in the financing of any dealing in
favour of the director or former director, particulars
of which are not contained in the notes to the financial
statements of the company for any financial year,
contrary to section 383; or
(c) any money that has been in any way connected with
any misconduct of the director or former director
(whether fraudulent or not) towards the company or
its members.
848.
Provisions supplementary to sections 846 and 847: powers to
require explanation etc.
(1) If a person produces a record or document in compliance
with a requirement imposed under section 846 or 847, the
inspector may—
(a) make copies, or otherwise record the details, of the
record or document; and
(b) by notice in writing, require the person to provide any
information or explanation in respect of the record or
document.
(2) If a person gives any answer or provides any information
or explanation in compliance with a requirement imposed
under subsection (1) or section 846, the inspector may,
by notice in writing, further require the person to verify,
within the time specified in that further requirement,
the answer, information or explanation by a statutory
declaration.(3) If a person does not give any answer or provide any
information or explanation in compliance with a
requirement imposed under subsection (1) or section 846
for the reason that the answer, information or explanation
is not within the person’s knowledge or in the person’s
possession, the inspector may, by notice in writing, further
require the person to verify, within the time specified in
that further requirement, that reason and fact by a statutory
declaration.
(4) A statutory declaration mentioned in subsection (2) or (3)
may be taken by the inspector.
849.
Inspector may exercise powers in relation to associated body
corporate
If an inspector appointed to investigate a company’s affairs
considers it necessary for the purposes of the investigation, the
inspector may also exercise any or all of the powers under
sections 846, 847 and 848 in relation to an associated body
corporate of the company, as if the references to a company in
those sections were references to an associated body corporate.
850.
Delegation of powers by inspector
(1) An inspector appointed to investigate a company’s affairs
may delegate in writing any or all of the powers conferred
under sections 846, 847 and 848 to another person.
(2) An inspector may delegate powers under subsection (1) in
relation to the company or an associated body corporate of
the company.
(3) If 2 or more inspectors are appointed to investigate
a company’s affairs, the power under subsection (1) is
exercisable by each of them.Subdivision 5
Resignation, Removal and Replacement of Inspectors
851.
Resignation of inspector
An inspector may resign by notice in writing to the Financial
Secretary.
852.
Revocation of appointment of inspector by Financial Secretary
The Financial Secretary may revoke the appointment of an
inspector by notice in writing to the inspector.
853.
Appointment of replacement inspector
(1) If an inspector dies or resigns, or an inspector’s
appointment is revoked, the Financial Secretary may
appoint another person to continue the investigation.
(2) For the purposes of this Division (except this section),
a person appointed to continue an investigation under
subsection (1)—
(a) is to be regarded as having been appointed under the
provision of this Division under which the former
inspector was appointed; and
(b) is subject to any direction given to the former
inspector under this Division that has not been
revoked.
854.
Former inspector must hand over documents etc.
(1) This section applies to—
(a) an inspector to whom the Financial Secretary has
given a direction to terminate the investigation under
section 845(1)(a); or
(b) a person—(i) who has resigned as an inspector; or
(ii) whose appointment as an inspector has been
revoked.
(2) The inspector or person must produce any document that
the inspector or person has obtained or generated during
the course of the investigation to—
(a) the Financial Secretary; or
(b) if directed by the Financial Secretary—
(i) a person appointed to continue the investigation
under section 853(1); or
(ii) a person referred to in section 881(2)(a) or (b).
(3) The inspector or person must also, if directed by the
Financial Secretary, inform—
(a) the Financial Secretary;
(b) a person appointed to continue the investigation under
section 853(1); or
(c) a person referred to in section 881(2)(a) or (b),
of any matter that came to the inspector’s or person’s
knowledge as a result of the investigation.
(4) A document mentioned in subsection (2) must be produced
in a form as directed by the Financial Secretary.
Subdivision 6
Reports by Inspectors
855.
Interim report to be made by inspector etc.
(1) An inspector—
(a) must, if directed by the Financial Secretary, prepare
an interim report on the investigation; and(b) may at any time prepare an interim report on the
investigation if the inspector considers it appropriate
to do so.
(2) If an inspector is directed under section 845(1)(a) to
terminate an investigation, any direction previously given
by the Financial Secretary referred to in subsection (1)(a)
ceases to have effect.
(3) An interim report must be delivered to the Financial
Secretary within the time directed by the Financial
Secretary or, in the absence of directions, within a
reasonable time after it is prepared.
(4) An inspector must, within a reasonable time after the
delivery of an interim report to the Financial Secretary,
deliver to the Registrar for registration a notice of that fact
in the specified form.
(5) Irrespective of whether an interim report has been or will
be prepared, an inspector—
(a) may, at any time in the course of the investigation,
inform the Financial Secretary of any matter that
comes to the inspector’s knowledge as a result of the
investigation; and
(b) must inform the Financial Secretary of any matter that
comes to the inspector’s knowledge as a result of the
investigation, if directed to do so by the Financial
Secretary.
856.
Final report to be made by inspector etc.
(1) An inspector must, on the completion of the investigation,
prepare a final report on the investigation.
(2) An inspector who is directed under section 845(1)(a) to
terminate an investigation must still prepare a final report
on the investigation if directed to do so—(a) where the inspector is appointed under section 840(1)
or (2) or 841(2), by the Financial Secretary; or
(b) where the inspector is appointed under section 841(1),
by the Court.
(3) A final report must be delivered to the Financial Secretary
within the time directed by the Financial Secretary or, in
the absence of directions, within a reasonable time after it
is prepared.
(4) An inspector must, within a reasonable time after the
delivery of a final report to the Financial Secretary, deliver
to the Registrar for registration a notice of that fact in the
specified form.
857.
Interim report or final report may cover affairs of associated body
corporate
If an inspector appointed to investigate a company’s affairs or a
delegate of the inspector has exercised any of the powers under
section 846, 847 or 848 in relation to an associated body
corporate of the company, the inspector must also report on the
affairs of that body corporate in the interim report or final
report, so far as the inspector considers that the affairs of that
body corporate are relevant to the investigation.
858.
Inspector must send report to affected persons etc.
(1) If, in the opinion of an inspector appointed to investigate a
company’s affairs, any person named in an interim report
or final report on the investigation would in the event of a
publication or other disclosure of the report, or any part
of the report, be adversely affected by the publication or
disclosure, the inspector must, before delivering the report
to the Financial Secretary—(a) send the draft report or that part of the draft report to
the person; and
(b) give the person a reasonable opportunity to be heard.
(2) Before an inspector sends a draft interim report or final
report, or part of the draft report, to a person under
subsection (1), the inspector may—
(a) cause any passages in the draft report or that part of
the draft report to be concealed from view or to be
obliterated; and
(b) require the person to keep the draft report or that part
of the draft report confidential.
859.
Financial Secretary to file copies of inspector’s report with Court
(1) As soon as practicable after receiving an interim report or
final report from an inspector appointed under section
841(1), the Financial Secretary must file a copy of the
report with the Court.
(2) The Financial Secretary may, before filing a copy of an
interim report or final report with the Court under
subsection (1), specify the period and manner in which
access to the report is to be restricted.
860.
Financial Secretary may send copies of inspector’s report to
applicants of investigation etc.
(1) After receiving an interim report or final report from an
inspector appointed to investigate a company’s affairs, the
Financial Secretary may—
(a) send a copy of the report to the company at its
registered office; or
(b) on request and on receipt of the prescribed fee, send a
copy of the report to—(i) a member of the company or a member of its
associated body corporate the affairs of which are
reported in the report under section 857;
(ii) the auditors of the company or body corporate;
(iii) a person whose conduct is mentioned in the
report;
(iv) the applicant for the investigation; or
(v) any other person whose financial interest appears
to the Financial Secretary to be affected by the
matters dealt with in the report, whether as a
creditor of the company or body corporate, or a
possible investor or otherwise.
(2) Before sending a copy of an interim report or final report
to any person under subsection (1), the Financial Secretary
may—
(a) cause any passage in the report to be concealed from
view or to be obliterated; and
(b) require the person to keep the copy of the report
confidential.
861.
Publication of inspector’s report
(1) The Financial Secretary may publish, either in whole or
in part, any interim report or final report delivered to the
Financial Secretary under this Division.
(2) The Financial Secretary must deliver to the Registrar for
registration a copy of any interim report or final report, or
any part of an interim report or final report, that is
published under subsection (1) as soon as practicable after
it is published.
(3) In this section—
publish (发表) includes distribute, make available and
disseminate.862.
Inspector’s report to be evidence
In any civil proceedings before a court (including proceedings
for the disqualification of a director)—
(a) a document purporting to be a copy of an interim
report or final report prepared by an inspector, or a
part of such a report, and purporting to be certified
by the inspector or the Financial Secretary as a true
copy of the report or part, is admissible in evidence on
its production without further proof; and
(b) on being admitted in evidence under paragraph (a),
the document is evidence of the facts stated in the
report or that part of the report.
Subdivision 7
Miscellaneous
863.
Offences for failing to comply with requirements under
Subdivision 4 etc.
(1) A person commits an offence if the person, without
reasonable excuse, fails to comply with any requirement
imposed on the person under Subdivision 4.
(2) A person commits an offence if the person, with intent to
defraud, fails to comply with any requirement imposed on
the person under Subdivision 4.
(3) An officer or employee of a company or body corporate on
which a requirement is imposed under Subdivision 4
commits an offence if the officer or employee, with intent
to defraud, causes or allows the company or body
corporate to fail to comply with the requirement.
(4) A person commits an offence if the person—
(a) in purported compliance with a requirement imposed
on the person under Subdivision 4—(i) produces any record or document that is false or
misleading in a material particular;
(ii) provides any information or explanation that is
false or misleading in a material particular; or
(iii) says or states anything that is false or misleading
in a material particular; and
(b) knows that, or is reckless as to whether or not, the
record or document, the information or explanation,
or the thing said or stated, is false or misleading in a
material particular.
(5) A person commits an offence if the person, with intent
to defraud, in purported compliance with a requirement
imposed on the person under Subdivision 4—
(a) produces any record or document that is false or
misleading in a material particular;
(b) provides any information or explanation that is false
or misleading in a material particular; or
(c) says or states anything that is false or misleading in a
material particular.
(6) An officer or employee of a company or body corporate
on which a requirement is imposed under Subdivision 4
commits an offence if the officer or employee, with intent
to defraud, causes or allows the company or body
corporate
to,
in
purported
compliance
with
the
requirement—
(a) produce any record or document that is false or
misleading in a material particular;
(b) provide any information or explanation that is false or
misleading in a material particular; or
(c) say or state anything that is false or misleading in a
material particular.(7) A person is not excused from complying with a requirement
imposed on the person under Subdivision 4 only on the
ground that to do so might tend to incriminate the person.
(8) Despite anything in this Ordinance, no criminal proceedings
may be instituted against a person under subsection (1), (2),
(3), (4), (5) or (6) in respect of any conduct if—
(a) proceedings have previously been instituted against the
person for the purposes of section 864(2)(b) in respect
of the same conduct; and
(b) those proceedings remain pending, or by reason of
the previous institution of those proceedings, no
proceedings may again be lawfully instituted against
the person for the purposes of section 864(2)(b) in
respect of the same conduct.
(9) A person who commits an offence under subsection (1) is
liable—
(a) on conviction on indictment to a fine of $200,000 and
to imprisonment for one year; or
(b) on summary conviction to a fine at level 5 and to
imprisonment for 6 months.
(10) A person who commits an offence under subsection (2), (3),
(5) or (6) is liable—
(a) on conviction on indictment to a fine of $1,000,000
and to imprisonment for 7 years; or
(b) on summary conviction to a fine at level 6 and to
imprisonment for 6 months.
(11) A person who commits an offence under subsection (4) is
liable—
(a) on conviction on indictment to a fine of $1,000,000
and to imprisonment for 2 years; or(b) on summary conviction to a fine at level 6 and to
imprisonment for 6 months.
864.
Inspector may apply to Court to inquire into failure to comply
with requirements under Subdivision 4
(1) If a person fails to comply with a requirement imposed on
the person under Subdivision 4, the inspector may, by
originating summons, apply to the Court for an inquiry
into the failure.
(2) The Court may, if it is satisfied that the person has without
reasonable excuse failed to comply with the requirement,
do any or all of the following—
(a) order the person to comply with the requirement
within the period specified by the Court;
(b) punish the person, and any other person knowingly
involved in the failure, in the same manner as if the
person and, if applicable, that other person had been
guilty of contempt of court.
(3) Despite anything in this Ordinance, no proceedings may be
instituted against a person for the purposes of subsection
(2)(b) in respect of any conduct if—
(a) criminal proceedings have previously been instituted
against the person under section 863(1), (2), (3), (4), (5)
or (6) in respect of the same conduct; and
(b) those criminal proceedings remain pending, or by
reason of the previous institution of those criminal
proceedings, no criminal proceedings may again be
lawfully instituted against the person under section
863(1), (2), (3), (4), (5) or (6) in respect of the same
conduct.865.
Use of incriminating evidence in proceedings
(1) If an inspector or a delegate of an inspector requires a
person, under Subdivision 4, to give an answer to any
question or to provide any information or explanation in
respect of any record or document produced, the inspector
or delegate must ensure that the person has first been
informed or reminded of the limitations imposed by
subsection (2) on the admissibility in evidence of the
inspector’s or delegate’s requirement and of the answer
given, or information or explanation provided, by the
person.
(2) Despite anything in this Ordinance, if the conditions
specified in subsection (3) are satisfied, the inspector’s or
delegate’s requirement and the answer given, or information
or explanation provided, by the person are not admissible
in evidence against the person in criminal proceedings,
other than those in which the person is charged with an
offence in respect of the answer, information or
explanation—
(a) under section 863(4), (5) or (6);
(b) under Part V of the Crimes Ordinance (Cap. 200); or
(c) for perjury.
(3) The conditions are—
(a) that the answer, information or explanation might tend
to incriminate the person; and
(b) that the person so claims before giving the answer, or
providing the information or explanation.866.
Expenses of investigation
(1) The expenses of an investigation are to be defrayed in the
first instance out of the general revenue but the persons
mentioned in subsection (2) are liable to repay the expenses
to the Government to the extent mentioned in that
subsection.
(2) Those persons and the extent of their liability are as
follows—
(a) if, on a prosecution for an offence instituted as a result
of the investigation, a person is convicted of the
offence by the court, the person is liable to repay the
expenses to the Government to the extent ordered by
the court;
(b) if the inspector who conducted the investigation was
appointed under section 840 or 841(1), any body
corporate dealt with by the interim report or final
report is liable to repay the expenses to the
Government to the extent directed by the Financial
Secretary;
(c) if the inspector who conducted the investigation was
appointed under section 840 on application by a
company or members of a company, the company or
any of those members who made the application are
liable to repay the expenses to the Government to the
extent directed by the Financial Secretary.
(3) When making an order or giving directions under a
paragraph of subsection (2), the court or the Financial
Secretary (as the case may be) may order or direct that 2 or
more persons liable under that paragraph are to be jointly
liable or jointly and severally liable for any of the expenses
ordered or directed to be repaid to the Government.(4) On making an order on the extent of a person’s liability
under paragraph (a) of subsection (2), the court may
further order that the person is also liable to indemnify
another person against any liability to which that other
person may be subject under paragraph (b) or (c) of that
subsection.
(5) If the inspector who conducted the investigation was
appointed under section 840 or 841(1), the interim report
or final report of the investigation may, if the inspector
thinks fit, include a recommendation as to the extent to
which the expenses of the investigation should be repaid
by a person referred to in paragraph (a), (b) or (c) of
subsection (2).
(6) An inspector must include a recommendation mentioned in
subsection (5) in the interim report or final report of the
investigation if so directed by the Financial Secretary.
(7) The recommendation of an inspector under subsection (5)
or (6)—
(a) in relation to a person referred to in paragraph (a) of
subsection (2)—
(i) must not be disclosed to the court until after the
person has been convicted; and
(ii) does not bind the court; and
(b) in relation to a person referred to in paragraph (b) or
(c) of subsection (2), does not bind the Financial
Secretary.
(8) For the purposes of this section, the expenses of an
investigation include—
(a) reasonable expenses incidental to the investigation; and(b) such reasonable sums for general staff costs and
overhead expenses of the Government, and for the
cost of insurance for the inspector, as are determined
by the Financial Secretary.
(9) An amount that is repayable to the Government under
subsection (2) is recoverable as a civil debt due to the
Government.
Division 3
Enquiry into Company’s Affairs by Financial Secretary
867.
Interpretation
In this Division—
company (公司)—
(a) in section 868(a), includes a registered non-Hong Kong
company;
(b) in section 868(b), includes a non-Hong Kong company.
868.
Circumstances under which Financial Secretary may enquire into
company’s affairs
The Financial Secretary may enquire into a company’s affairs
if—
(a) the Financial Secretary considers that doing so would
assist the Financial Secretary in deciding whether to
appoint an inspector under section 840(2); or
(b) it appears to the Financial Secretary that there is a
good reason for doing so.869.
Financial Secretary may require production of records and
documents etc.
(1) For the purpose of enquiring into a company’s affairs
under section 868, if the Financial Secretary considers that
a record or document is or may be relevant to the enquiry,
the Financial Secretary may, by notice in writing, require—
(a) the company; or
(b) any other person who appears to the Financial
Secretary to be in possession of the record or
document,
to produce the record or document within the time and at
the place specified in the notice.
(2) If a company or a person produces a record or document
in compliance with a requirement imposed under
subsection (1), the Financial Secretary may—
(a) make copies, or otherwise record the details, of the
record or document; and
(b) by notice in writing, require an officer or former
officer of the company or the person to provide any
information or explanation in respect of the record or
document.
(3) The Financial Secretary must not require an authorized
institution to produce any record or document, or disclose
any information, relating to the affairs of a customer of
the institution under subsection (1) or (2) unless—
(a) the Financial Secretary has reasonable grounds to
believe that the customer may be able to provide
information relevant to the enquiry; and
(b) the Financial Secretary is satisfied that the production
or disclosure is necessary for the purposes of the
enquiry and so certifies in writing.(4) If an authorized institution produces a record or document
relating to the affairs of its customer in compliance with a
requirement imposed under subsection (1), the Financial
Secretary may also require that customer to provide any
information or explanation in respect of the record or
document.
(5) If a company or a person does not produce a record or
document in compliance with a requirement imposed under
subsection (1), the Financial Secretary may, by notice in
writing, require the company or person to state, to the best
of the company’s or person’s knowledge and belief, where
the record or document is.
870.
Financial Secretary may delegate powers under section 869
The Financial Secretary may delegate in writing any or all of
the powers conferred under section 869 to another person.
871.
Offences for failing to comply with requirements under section
869 etc.
(1) A person commits an offence if the person, without
reasonable excuse, fails to comply with any requirement
imposed on the person under section 869.
(2) A person commits an offence if the person, with intent to
defraud, fails to comply with any requirement imposed on
the person under section 869.
(3) An officer or employee of a company on which a
requirement is imposed under section 869 commits an
offence if the officer or employee, with intent to defraud,
causes or allows the company to fail to comply with the
requirement.
(4) A person commits an offence if the person—
(a) in purported compliance with a requirement imposed
on the person under section 869—(i) produces any record or document that is false or
misleading in a material particular; or
(ii) provides any information or explanation that is
false or misleading in a material particular; and
(b) knows that, or is reckless as to whether or not,
the record or document, or the information or
explanation, is false or misleading in a material
particular.
(5) A person commits an offence if the person, with intent
to defraud, in purported compliance with a requirement
imposed on the person under section 869—
(a) produces any record or document that is false or
misleading in a material particular; or
(b) provides any information or explanation that is false
or misleading in a material particular.
(6) An officer or employee of a company on which a
requirement is imposed under section 869 commits an
offence if the officer or employee, with intent to defraud,
causes or allows the company to, in purported compliance
with the requirement—
(a) produce any record or document that is false or
misleading in a material particular; or
(b) provide any information or explanation that is false or
misleading in a material particular.
(7) A person is not excused from complying with a requirement
imposed on the person under section 869 only on the
ground that to do so might tend to incriminate the person.
(8) A person who commits an offence under subsection (1) is
liable—
(a) on conviction on indictment to a fine of $200,000 and
to imprisonment for one year; or(b) on summary conviction to a fine at level 5 and to
imprisonment for 6 months.
(9) A person who commits an offence under subsection (2), (3),
(5) or (6) is liable—
(a) on conviction on indictment to a fine of $1,000,000
and to imprisonment for 7 years; or
(b) on summary conviction to a fine at level 6 and to
imprisonment for 6 months.
(10) A person who commits an offence under subsection (4) is
liable—
(a) on conviction on indictment to a fine of $1,000,000
and to imprisonment for 2 years; or
(b) on summary conviction to a fine at level 6 and to
imprisonment for 6 months.
872.
Use of incriminating evidence in proceedings
(1) If the Financial Secretary or a delegate of the Financial
Secretary requires a person, under section 869, to provide
any information or explanation in respect of any record or
document produced, the Financial Secretary or delegate
must ensure that the person has first been informed or
reminded of the limitations imposed by subsection (2) on
the admissibility in evidence of the Financial Secretary’s or
delegate’s requirement and of the information or
explanation provided by the person.
(2) Despite anything in this Ordinance, if the conditions
specified in subsection (3) are satisfied, the Financial
Secretary’s or delegate’s requirement, as well as the
information or explanation provided by the person, are
not admissible in evidence against the person in criminal
proceedings other than those in which the person is charged
with an offence in respect of the information or
explanation—(a) under section 871(4), (5) or (6);
(b) under Part V of the Crimes Ordinance (Cap. 200); or
(c) for perjury.
(3) The conditions specified for the purposes of subsection (2)
are—
(a) that the information or explanation might tend to
incriminate the person; and
(b) that the person so claims before providing the
information or explanation.
Division 4
Enquiry by Registrar
873.
Registrar may require production of records and documents etc.
(1) For the purpose of enquiring into whether any specified
act has been done, if each of the conditions specified in
subsection (2) is satisfied, the Registrar may, by notice in
writing, require a person—
(a) to produce, within the time and at the place specified
in the notice, any record or document specified in the
notice; and
(b) if the record or document is produced, to provide any
information or explanation in respect of the record or
document.
(2) Subject to subsection (3), the conditions are—
(a) that the Registrar has reason to believe that—
(i) a specified act has been done;
(ii) the record, document, information or explanation
is relevant to the enquiry; and(iii) the person is in possession of the record or
document; and
(b) that it is so certified in writing by the Registrar.
(3) Subsection (2)(a)(iii) does not apply if the person who is to
be required to produce the record or document is—
(a) the body corporate to which the act relates; or
(b) an officer of that body corporate.
(4) The Registrar must not require an authorized institution
to produce any record or document, or disclose any
information, relating to the affairs of a customer of the
institution under subsection (1) unless—
(a) the Registrar has reasonable grounds to believe that
the customer may be able to provide information
relevant to the enquiry; and
(b) the Registrar is satisfied that the production or
disclosure is necessary for the purposes of the enquiry
and so certifies in writing.
(5) If an authorized institution produces a record or document
relating to the affairs of its customer in compliance with a
requirement imposed under subsection (1), the Registrar
may also require that customer to provide any information
or explanation in respect of the record or document.
(6) If a person produces a record or document in compliance
with a requirement imposed under subsection (1), the
Registrar may make copies, or otherwise record the details,
of the record or document.
(7) The Financial Secretary may, by notice published in the
Gazette, amend subsection (8).
(8) In this section—
specified act (指明作为) means an act that would constitute an
offence under section 750(6) or 895(1).874.
Registrar may delegate powers under section 873
The Registrar may delegate in writing any or all of the powers
conferred under section 873 to any public officer.
875.
Offences for failing to comply with requirements under section
873 etc.
(1) A person commits an offence if the person, without
reasonable excuse, fails to comply with any requirement
imposed on the person under section 873.
(2) A person commits an offence if the person, with intent to
defraud, fails to comply with any requirement imposed on
the person under section 873.
(3) An officer or employee of a body corporate on which a
requirement is imposed under section 873 commits an
offence if the officer or employee, with intent to defraud,
causes or allows the body corporate to fail to comply with
the requirement.
(4) A person commits an offence if the person—
(a) in purported compliance with a requirement imposed
on the person under section 873—
(i) produces any record or document that is false or
misleading in a material particular; or
(ii) provides any information or explanation that is
false or misleading in a material particular; and
(b) knows that, or is reckless as to whether or not,
the record or document, or the information or
explanation, is false or misleading in a material
particular.
(5) A person commits an offence if the person, with intent
to defraud, in purported compliance with a requirement
imposed on the person under section 873—(a) produces any record or document that is false or
misleading in a material particular; or
(b) provides any information or explanation that is false
or misleading in a material particular.
(6) An officer or employee of a body corporate on which a
requirement is imposed under section 873 commits an
offence if the officer or employee, with intent to defraud,
causes or allows the body corporate to, in purported
compliance with the requirement—
(a) produce any record or document that is false or
misleading in a material particular; or
(b) provide any information or explanation that is false or
misleading in a material particular.
(7) A person is not excused from complying with a requirement
imposed on the person under section 873 only on the
ground that to do so might tend to incriminate the person.
(8) A person who commits an offence under subsection (1) is
liable—
(a) on conviction on indictment to a fine of $150,000 and
to imprisonment for one year; or
(b) on summary conviction to a fine at level 5 and to
imprisonment for 6 months.
(9) A person who commits an offence under subsection (2), (3),
(5) or (6) is liable—
(a) on conviction on indictment to a fine of $1,000,000
and to imprisonment for 3 years; or
(b) on summary conviction to a fine at level 6 and to
imprisonment for 6 months.
(10) A person who commits an offence under subsection (4) is
liable—(a) on conviction on indictment to a fine of $300,000 and
to imprisonment for 2 years; or
(b) on summary conviction to a fine at level 6 and to
imprisonment for 6 months.
876.
Use of incriminating evidence in proceedings
(1) If the Registrar or a delegate of the Registrar requires a
person, under section 873, to provide any information
or explanation in respect of any record or document
produced, the Registrar or delegate must ensure that
the person has first been informed or reminded of the
limitations imposed by subsection (2) on the admissibility
in evidence of the Registrar’s or delegate’s requirement and
of the information or explanation provided by the person.
(2) Despite anything in this Ordinance, if the conditions
specified in subsection (3) are satisfied, the Registrar’s or
delegate’s requirement, as well as the information or
explanation provided by the person, are not admissible in
evidence against the person in criminal proceedings other
than those in which the person is charged with an offence
in respect of the information or explanation—
(a) under section 875(4), (5) or (6);
(b) under Part V of the Crimes Ordinance (Cap. 200); or
(c) for perjury.
(3) The conditions specified for the purposes of subsection (2)
are—
(a) that the information or explanation might tend to
incriminate the person; and
(b) that the person so claims before providing the
information or explanation.Division 5
Supplementary Provisions to Divisions 2, 3 and 4
Subdivision 1
Supplementary Provisions Applicable to Divisions 2 and 3
877.
Magistrate’s warrants
(1) If a magistrate is satisfied on information on oath 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 that may be required to be produced
under Division 2 or 3, the magistrate may issue a warrant
in respect of the premise.
(2) For the purposes of subsection (1), the information—
(a) must set out—
(i) the nature of the record or document that is, or is
likely to be, on the premises; and
(ii) the provision of Division 2 or 3 under which the
record or document may be required to be
produced; and
(b) must be laid by—
(i) in relation to an investigation under Division 2,
an inspector; or
(ii) in relation to an enquiry under Division 3, the
Financial Secretary or a delegate of the Financial
Secretary.
(3) A warrant issued under subsection (1) authorizes a person
specified in it, and such other persons as may be necessary
to assist in its execution, to—(a) enter the premises, if necessary by force, at any time
within the period of 7 days beginning with the date of
the warrant; and
(b) search for, seize and remove, any record or document
that the person so specified has reasonable grounds to
believe may be required to be produced under Division
2 or 3 (as the case may be).
(4) If an authorized person has reasonable grounds to believe
that another person on the premises is employed or
engaged to provide a service in connection with a business
that is or has been conducted on the premises, the
authorized person may require that other person to
produce for examination any record or document that—
(a) is in the possession of that other person; and
(b) the authorized person has reasonable grounds to
believe may be required to be produced under Division
2 or 3 (as the case may be).
(5) An authorized person may, in relation to any record or
document required to be produced under subsection (4)—
(a) prohibit any person found on the premises from—
(i) removing the record or document from the
premises;
(ii) erasing anything from, adding anything to, or
otherwise altering anything in, the record or
document; or
(iii) otherwise interfering in any manner with, or
causing or permitting any other person to
interfere with, the record or document; and
(b) take any other steps that appear to the authorized
person to be necessary for—
(i) preserving the record or document; or(ii) preventing interference with the record or
document.
(6) Any record or document removed by an authorized person
may be retained for—
(a) a period not exceeding 6 months beginning with the
day of its removal; or
(b) if the record or document is or may be required for
the purposes of any criminal proceedings, or any
proceedings under this Ordinance or the Companies
(Winding Up and Miscellaneous Provisions) Ordinance
(Cap. 32), such longer period as may be necessary for
the purposes of those proceedings.
(7) If an authorized person removes any record or document
under this section, the person—
(a) must as soon as practicable after the removal give a
receipt for the record or document; and
(b) may permit any other person who, but for the removal,
would be entitled to inspect the record or document,
at all reasonable times—
(i) to inspect it; and
(ii) to make copies or otherwise record details of it.
(8) Section 102 of the Criminal Procedure Ordinance (Cap.
221) applies to any property that has, by virtue of this
section, come into the possession of an inspector, the
Financial Secretary or a delegate of the Financial Secretary,
as it applies to property that has come into the possession
of the police.
(9) A person commits an offence if the person—
(a) without reasonable excuse, fails to comply with a
requirement or prohibition under subsection (4) or (5);
or(b) obstructs an authorized person in the exercise of a
power conferred by subsection (3), (4) or (5).
(10) A person who commits an offence under subsection (9) is
liable—
(a) on conviction on indictment to a fine of $1,000,000
and to imprisonment for 2 years; or
(b) on summary conviction to a fine at level 6 and to
imprisonment for 6 months.
(11) In this section—
authorized person (获授权人) means a person authorized by a
warrant issued under subsection (1) to carry out the acts
set out in paragraphs (a) and (b) of subsection (3).
878.
Officers must give assistance in prosecution instituted as a result
of investigation etc.
(1) If—
(a) an investigation under Division 2 or an enquiry under
Division 3 has been carried out; and
(b) a prosecution for an offence is instituted as a result of
the investigation or enquiry,
every officer or former officer, employee or former
employee, or agent or former agent of any body corporate
the affairs of which have been investigated or enquired into
in that investigation or enquiry must give the Secretary for
Justice all assistance in connection with the prosecution
that the officer, employee or agent is reasonably able to
give.
(2) Subsection (1) does not require a person to give any
assistance in connection with the prosecution if the person
is a defendant in the proceedings.879.
Proceedings on specified materials
(1) If it appears to the Financial Secretary from any specified
materials that it is expedient in the public interest that
a body corporate which may be wound up under the
Companies (Winding Up and Miscellaneous Provisions)
Ordinance (Cap. 32) should be wound up, the Financial
Secretary may present a petition for it to be wound up.
(2) On a petition by the Financial Secretary under subsection
(1), the Court may make a winding up order if the Court
thinks it just and equitable for the body corporate to be
wound up.
(3) If it appears to the Financial Secretary from any specified
materials that—
(a) a company’s or non-Hong Kong company’s affairs are
being or have been conducted in a manner unfairly
prejudicial to the interests of the members generally or
of one or more members; or
(b) an actual or proposed act or omission of a company
or non-Hong Kong company (including one done or
made on its behalf) is or would be so prejudicial,
the Financial Secretary may, whether or not a petition has
been presented under subsection (1), present to the Court a
petition for an order to be made under section 725(1)(b) or
(2).
(4) If it appears to the Financial Secretary from any specified
materials that, in relation to a company or non-Hong Kong
company, a person—
(a) has engaged, is engaging or is proposing to engage in
any conduct specified in section 728(1)(a); or(b) before the commencement date of section 728, had
engaged, was engaging or was proposing to engage in
any conduct specified in section 728(2)(a), and the
engagement or proposal still subsists,
the Financial Secretary may apply to the Court for the
remedies under section 729(2).
(5) If it appears to the Financial Secretary from any specified
materials that, in relation to a company or non-Hong Kong
company, a person—
(a) has refused or failed, is refusing or failing, or is
proposing to refuse or fail, to do an act or thing
specified in section 728(1)(b); or
(b) before the commencement date of section 728, had
refused or failed, was refusing or failing, or was
proposing to refuse or fail, to do an act or thing that
the person was required by the predecessor Ordinance
and is required by this Ordinance to do, and the
refusal, failure or proposal still subsists,
the Financial Secretary may apply to the Court for the
remedies under section 729(2).
(6) If it appears to the Financial Secretary from any specified
materials that it is expedient in the public interest that a
disqualification order be made under section 168J(1) of the
Companies (Winding Up and Miscellaneous Provisions)
Ordinance (Cap. 32) against any person who is or has been
a director or shadow director of—
(a) a company as defined by section 2(1);
(b) an unregistered company as defined by section 326(1)
of the Companies (Winding Up and Miscellaneous
Provisions) Ordinance (Cap. 32) (other than a
partnership, whether limited or not, or an association),
wherever incorporated, that—(i) is carrying on business in Hong Kong, or has
carried on business in Hong Kong; and
(ii) may be wound up under the Companies (Winding
Up and Miscellaneous Provisions) Ordinance
(Cap. 32); or
(c) a registered non-Hong Kong company,
the Financial Secretary may apply to the Court for such an
order to be made against that person.
(7) In this section—
specified materials (指明材料) means—
(a) any report made on, or any record, document or
information obtained in, an investigation under
Division 2 by an inspector or a delegate of an
inspector; or
(b) any record, document or information obtained in an
enquiry under Division 3 by the Financial Secretary or
a delegate of the Financial Secretary.
880.
Preservation of secrecy
(1) Except in the performance of any function under this
Ordinance
or
the
Companies
(Winding
Up
and
Miscellaneous Provisions) Ordinance (Cap. 32), or for
carrying into effect the provisions of this Ordinance or that
Ordinance, a person specified in subsection (3)—
(a) must not permit any person to have access to any
matter relating to the affairs of any person that comes
to the specified person’s knowledge in an investigation
under Division 2 or an enquiry under Division 3, or
otherwise in connection with the investigation or
enquiry; and
(b) must not communicate any such matter to any person
other than the person to whom the matter relates.(2) Subsection (1) has effect subject to section 881(1) and (2).
(3) The persons specified for the purposes of subsection (1)
are—
(a) a public officer;
(b) an inspector or a delegate of an inspector or of the
Financial Secretary, or an employee, agent, consultant
or adviser of the inspector or delegate;
(c) an employee, agent, consultant or adviser who is
employed or appointed for the purposes of an
investigation under Division 2 or an enquiry under
Division 3;
(d) a person who performs or has performed any function
in an investigation under Division 2 or an enquiry
under Division 3;
(e) a person who has assisted any other person in the
performance of any function in an investigation under
Division 2 or an enquiry under Division 3; and
(f) a person who, under section 858 or 860—
(i) has been sent a draft report or a part of the draft
report, or a report, on an investigation; and
(ii) has been required to keep the draft report or
that part of the draft report, or the report,
confidential.
881.
Permitted disclosure and restrictions
(1) A person specified in section 880(3) may—
(a) disclose information that has already been made
available to the public;(b) disclose information for the purpose of any criminal
proceedings in Hong Kong or any investigation
conducted by a law enforcement agency with a view to
bringing any such proceedings;
(c) disclose information for the purpose of seeking advice
from or giving advice by counsel, a solicitor or other
professional adviser, acting or proposing to act in a
professional capacity in connection with any matter
arising under this Ordinance or the Companies
(Winding Up and Miscellaneous Provisions) Ordinance
(Cap. 32);
(d) disclose information in connection with any judicial
or other proceedings to which the specified person is a
party; and
(e) disclose information in accordance with an order of a
court or tribunal, or in accordance with a law or a
requirement made under a law.
(2) The Financial Secretary may—
(a) subject to subsection (3), disclose information to—
(i) the Chief Executive;
(ii) the Secretary for Justice;
(iii) the Secretary for Financial Services and the
Treasury;
(iv) the Commissioner of Police of Hong Kong;
(v) the
Commissioner
of
the
Independent
Commission Against Corruption;
(vi) the Commissioner of Inland Revenue;
(vii) the Registrar;(viii) the Official Receiver in a capacity other than that
of a liquidator or provisional liquidator appointed
under, or holding such office by virtue of, the
Companies (Winding Up and Miscellaneous
Provisions) Ordinance (Cap. 32);
(ix) the Monetary Authority;
(x) the Securities and Futures Commission;
(xi) the Financial Reporting Council;
(xii) the Market Misconduct Tribunal;
(xiii) the Insurance Authority;
(xiv) the
Mandatory
Provident
Fund
Schemes
Authority;
(xv) an inspector;
(xvi) a delegate of the Financial Secretary;
(xvii) a company recognized as an exchange company
under section 19(2) of the Securities and Futures
Ordinance (Cap. 571);
(xviii) the Privacy Commissioner for Personal Data;
(xix) the Ombudsman; or
(xx) a public officer authorized by the Financial
Secretary under subsection (7);
(b) subject to subsection (3), disclose information in
respect of a company whose affairs are or have been
investigated under section 840 or 841, or enquired into
under section 869, to—
(i) the Official Receiver in the capacity of a
liquidator or provisional liquidator of the
company appointed under, or holding such office
by virtue of, the Companies (Winding Up and
Miscellaneous Provisions) Ordinance (Cap. 32); or(ii) any other person who—
(A) is a liquidator or provisional liquidator of
the
company
appointed
under
that
Ordinance; or
(B) acts in a similar capacity in relation to the
company under any law of a place outside
Hong Kong;
(c) disclose information with the consent of—
(i) the person from whom the information was
obtained or received; and
(ii) if the information does not relate to such person,
the person to whom it relates; and
(d) disclose information in summary form that is so
framed as to prevent particulars relating to any person
from being ascertained from it.
(3) The Financial Secretary must not disclose information
under subsection (2)(a) or (b) unless the Financial Secretary
is of the opinion that—
(a) the disclosure will enable or assist the recipient of the
information to perform the recipient’s functions; and
(b) it is not contrary to the public interest that the
information be so disclosed.
(4) Subject to subsection (5), if information is disclosed under
subsection (1) or (2) (other than subsection (1)(a) or (2)(d))
or section 880(1)—
(a) the person to whom the information is so disclosed;
and
(b) any other person who obtains or receives the
information from that person,
must not disclose the information to any other person.(5) Subsection (4) does not prohibit a person mentioned in
paragraph (a) or (b) of that subsection from disclosing
the information to any other person if—
(a) the Financial Secretary consents to the disclosure;
(b) the information has already been made available to the
public;
(c) the disclosure is for the purpose of seeking advice
from or giving advice by counsel, a solicitor or other
professional adviser, acting or proposing to act in a
professional capacity in connection with any matter
arising under this Ordinance or the Companies
(Winding Up and Miscellaneous Provisions) Ordinance
(Cap. 32);
(d) the disclosure is in connection with any judicial or
other proceedings to which the person so referred to is
a party; or
(e) the disclosure is in accordance with an order of a
court or tribunal, or in accordance with a law or a
requirement made under a law.
(6) The Financial Secretary may attach such conditions as the
Financial Secretary considers appropriate to—
(a) a disclosure of information made under subsection (2);
or
(b) a consent granted under subsection (5)(a).
(7) The Financial Secretary may authorize any public officer as
a person to whom information may be disclosed under
subsection (2)(a)(xx).
882.
Offences on breach of secrecy
(1) A person who contravenes section 880(1) commits an
offence.
(2) A person commits an offence if—(a) the person discloses any information in contravention
of section 881(4); and
(b) at the time of the disclosure—
(i) the person knew, or ought to have known, that
the information was previously disclosed to, or
obtained or received by, the person as described
in section 881(4)(a) or (b); and
(ii) the person had no reasonable grounds to believe
that the person was not prohibited from disclosing
the information by virtue of section 881(5).
(3) A person who commits an offence under subsection (1) or (2)
is liable—
(a) on conviction on indictment to a fine of $1,000,000
and to imprisonment for 2 years; or
(b) on summary conviction to a fine at level 6 and to
imprisonment for 6 months.
Subdivision 2
Supplementary Provisions Applicable to Divisions 2, 3 and 4
883.
Interpretation
In this Subdivision—
specified officer (指明人员)—
(a) in relation to an investigation under Division 2, means
an inspector or a delegate of an inspector;
(b) in relation to an enquiry under Division 3, means
the Financial Secretary or a delegate of the Financial
Secretary; and
(c) in relation to an enquiry under Division 4, means the
Registrar or a delegate of the Registrar.884.
Protection in relation to certain disclosures
(1) If—
(a) a person makes a disclosure to a specified officer
otherwise than in compliance with a requirement made
by the officer under Division 2, 3 or 4 (as the case may
be); and
(b) the disclosure satisfies each of the conditions specified
in subsection (2),
the person is not liable in any proceedings relating to
a breach of duty of confidentiality by reason only of the
disclosure.
(2) The conditions are—
(a) that the disclosure is of a kind that the person could
be required to make under Division 2, 3 or 4 (as the
case may be);
(b) that the person makes the disclosure in good faith and
in the reasonable belief that the disclosure is capable
of assisting the specified officer in the investigation
under Division 2 or enquiry under Division 3 or 4;
(c) that the information disclosed is not more than is
reasonably necessary for the purpose of assisting the
specified officer in the investigation under Division 2
or enquiry under Division 3 or 4;
(d) that the disclosure is not prohibited by virtue of any
enactment.
(3) Subsection (1) does not apply to a disclosure made by
a person in the capacity as a banker or lawyer in respect
of information to which the person owes a duty of
confidentiality in that capacity.885.
Protection of informers etc.
(1) Any information concerning the identity of a protected
person is not admissible in evidence in any proceedings
before a court or tribunal.
(2) In such proceedings, a witness is not obliged—
(a) to disclose the name or address of a protected person
who is not a witness in those proceedings; or
(b) to state any matter that would lead, or would tend
to lead, to discovery of the name or address of a
protected person who is not a witness in those
proceedings.
(3) If a book, document or paper that is in evidence, or liable
to inspection, in such proceedings contains an entry—
(a) in which a protected person is named or described; or
(b) that might lead to discovery of a protected person,
the court or tribunal (as the case may be) must cause all
such entries to be concealed from view, or to be obliterated,
so far as may be necessary to protect the identity of the
protected person from discovery.
(4) In such proceedings, the court or tribunal may, despite
subsection (1), (2) or (3), permit inquiry, and require full
disclosure, concerning a protected person if—
(a) it is of the opinion that justice cannot be fully done
between the parties to the proceedings without
disclosure of the name of the protected person; or
(b) it is satisfied that the protected person made a material
statement that the person—
(i) knew or believed to be false; or
(ii) did not believe to be true.(5) This section has effect despite the preparation or
publication of any interim report or final report of an
investigation under Division 2.
(6) In this section—
protected person (受保障人士) means—
(a) an informer who has given information to a specified
officer with respect to an investigation under Division
2 or an enquiry under Division 3 or 4; or
(b) a person who has assisted a specified officer with
respect to such an investigation or enquiry.
886.
Legal professional privilege
(1) Subject to subsection (2), this Part does not affect any
claims, rights or entitlements that would, apart from this
Part, arise on the ground of legal professional privilege.
(2) Subsection (1) does not affect any requirement under
Division 2, 3 or 4 to disclose the name and address of
a client of a legal practitioner (whether or not the legal
practitioner is qualified in Hong Kong to practise as
counsel or to act as a solicitor).
887.
Immunity
(1) A person who complies with a requirement imposed by
a specified officer under Subdivision 4 of Division 2 or
section 869 or 873 does not incur any civil liability by
reason only of that compliance.
(2) A person does not incur any civil liability in respect of
anything done, or omitted to be done, by the person in
good faith in the performance, or purported performance,
of any function under this Part.888.
Production of information in information systems etc.
(1) If—
(a) a specified officer requires any record or document
to be produced under Subdivision 4 of Division 2 or
section 869 or 873; and
(b) any information or matter contained in the record or
document is recorded otherwise than in a legible form
but is capable of being reproduced in a legible form,
the officer may require the production of a reproduction of
the recording of the information or matter, or the relevant
part of the recording, in a legible form.
(2) If—
(a) a specified officer requires any record or document
to be produced under Subdivision 4 of Division 2 or
section 869 or 873; and
(b) any information or matter contained in the record or
document is recorded in an information system,
the officer may require the production of a reproduction
of the recording of the information or matter, or the
relevant part of the recording, in a form that enables the
information or matter to be reproduced in a legible form.
889.
Lien claimed on records or documents
If a person claims a lien on any record or document in the
person’s possession that is required to be produced under
Subdivision 4 of Division 2 or section 869 or 873—
(a) the lien does not affect the requirement to produce the
record or document;
(b) no fee is payable for or in respect of the production;
and
(c) the production does not affect the lien.890.
Destruction of documents
(1) A person commits an offence if—
(a) the person destroys, falsifies, conceals or otherwise
disposes of, or causes or permits the destruction,
falsification, concealment or disposal of, any record or
document that is required to be produced under
Subdivision 4 of Division 2 or section 869 or 873; and
(b) the person does so with intent to conceal, from
the specified officer by whom the requirement 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 $1,000,000
and to imprisonment for 2 years; or
(b) on summary conviction to a fine at level 6 and to
imprisonment for 6 months.
891.
Inspection of records or documents seized etc.
(1) This section applies if a specified officer has taken
possession of any record or document under this Part.
(2) The specified officer must, subject to any reasonable
conditions the officer may impose as to security or
otherwise, permit any person who would be entitled to
inspect the record or document had the officer not taken
possession of it, at all reasonable times—
(a) to inspect it; and
(b) to make copies or otherwise record details of it.Division 6
Investigation of Company’s Affairs by Persons Appointed
by Company
892.
Appointment of person by company to investigate its affairs
(1) A company may, by special resolution, appoint a person to
investigate its affairs.
(2) For the purpose of investigating the company’s affairs, the
appointed person may, by notice in writing, require any
officer or agent of the company to do any or all of the
following—
(a) produce to the appointed person any record or
document relating to any matter under investigation
that is in the officer’s or agent’s custody or power;
(b) attend before the appointed person at the time and
place specified in the notice, and answer any question,
whether on oath or otherwise, relating to any matter
under investigation that the appointed person may
raise with the officer or agent;
(c) answer any question relating to any matter under
investigation that is specified in the notice.
(3) The appointed person may administer an oath to any
person for the purposes of subsection (2)(b).
893.
Court may inquire into failure of officer or agent to attend before
appointed person etc.
(1) If an officer or agent of a company fails to comply with a
requirement imposed on the officer or agent under section
892(2), the appointed person may apply to the Court for an
inquiry into the failure.(2) The Court may, if it is satisfied that the officer or agent has
without any reasonable excuse failed to comply with the
requirement, punish the officer or agent (as the case may
be) in the same manner as if the officer or agent had been
guilty of contempt of court.
894.
Report by appointed person
(1) A person appointed to investigate a company’s affairs
under section 892(1) must, on the conclusion of the
investigation, report on the investigation in any manner as
that company in general meeting may direct.
(2) In any proceedings before a court—
(a) a document purporting to be a copy of the report,
and purporting to be signed by the appointed person
and the company, is admissible in evidence on its
production without further proof; and
(b) on being admitted in evidence under paragraph (a),
the document is proof of any opinion of the appointed
person expressed in the report.

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(Ord. No. 28 of 2012)Companies Ordinance：Part 19 Investigations and Enquiries