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香港新会社条例(第622章) 301~400条

1-100 101-200 201-300 301-400 401-500 501-600 601-700 701-800 801-900 901-921 Schedule

Section:

301

Consequences of unlawful distribution

(1) This section applies if
  (a) a company makes a distribution, or part of a distribution, to one of its members in contravention of
    (i) section 297, 298 or 299; or
    (ii) a prohibition or restriction in that section as modified under section 300; and
  (b) at the time of the distribution, the member knows or has reasonable grounds for believing that the distribution, or that part of the distribution (as the case may be) is made in contravention of that section or modified prohibition or restriction.

(2) If the distribution is made in cash, the member is liable to repay the distribution, or that part of the distribution (as the case may be) to the company.

(3) If the distribution is made otherwise than in cash, the member is liable to pay to the company a sum equal to the value of the distribution or that part of the distribution (as the case may be) at the time of the distribution.

(4) This section does not affect any obligation otherwise imposed on a member of a company to repay a distribution unlawfully made to the member.

(5) This section does not apply in relation to
  (a) any payment made by a company in respect of the redemption or buy-back by the company of shares in itself; or
  (b) any financial assistance given by a company in contravention of section 275.

Division:3

Provisions Supplementary to Division 2

Section:

302

Justification of distribution by reference to financial statements

The amount of a distribution that may be made without contravening section 297, 298 or 299, or a prohibition or restriction in that section as modified under section 300, is to be determined by reference to the financial items as stated in the financial statements specified in Division 4.

Section:

303

Successive distributions

(1) This section applies if
  (a) a company proposes to make a distribution pursuant to determinations made by reference to financial items as stated in any financial statements; and
  (b) the company
    (i) has made one or more prior distributions pursuant to determinations made by reference to financial items as stated in the financial statements; or
    (ii) since the financial statements were prepared, has given financial assistance specified in subsection or has made a payment specified in subsection (4).

(2) Section 302 applies for the purpose of determining the amount of the proposed distribution that may be made without contravening section 297, 298 or 299, or a prohibition or restriction in that section as modified under section 300, as if the amount of the proposed distribution were increased by the amount of the prior distributions, financial assistance and other payments.

(3) The financial assistance is
  (a) financial assistance that is given by the company out of its distributable profits; or
  (b) financial assistance
    (i) that is given by the company in contravention of Division 5 of Part 5; and
    (ii) the giving of which reduces the company's net assets or increases its net liabilities.

(4) The payment is
(a) a payment made by the company in respect of the buy-back by the company of shares in itself (except a payment lawfully made otherwise than out of distributable profits); or
(b) a payment made by the company of any description specified in section 257(5) (except a payment lawfully made otherwise than out of distributable profits).

(5) In this section
liabilities(負債) has the meaning given by section 274(1);
net assets(淨資產), in relation to a company that gives any financial assistance, means the amount by which the aggregate of the company's assets exceeds the aggregate of its liabilities (taking the amount of both assets and
liabilities to be as stated in the company's accounting records immediately before the financial assistance is given);
net liabilities(淨負債), in relation to a company that gives any financial assistance, means the amount by which the aggregate of the company's liabilities exceeds the aggregate of its assets (taking the amount of both assets and liabilities to be as stated in the company's accounting records immediately before the financial assistance is given).

Division:4

Specified Financial Statements

Section:

304

Last annual financial statements specified for purposes of section 302

(1) Subject to sections 305 and 306, the financial statements specified for the purposes of section 302 are the financial statements prepared by the directors for the previous financial year, in relation to which subsections (2), (3), (4), (5) and (6) are complied with.

(2) The financial statements must
  (a) have been laid before the company in general meeting under section 429(1); or
  (b) have been sent to every member under section 430(3).

(3) The financial statements must
  (a) have been properly prepared in accordance with Subdivision 3 of Division 4 of Part 9; or
  (b) have been properly prepared in accordance with Subdivision 3 of Division 4 of Part 9, except only in relation to the matters that are not material for the purpose specified in subsection (8).

(4) The company's auditor must have prepared a report on the financial statements under section 405.

(5) If, in the auditor's report, the auditor has not given an unqualified opinion to the effect that the financial statements have been properly prepared in compliance with this Ordinance, the auditor must have given a written statement as to whether, in the auditor's opinion, the matter in respect of which the report is qualified is material for the purpose specified in subsection (8).

(6) A written statement under subsection (5)
  (a) may be made at the time of the report or subsequently; and
  (b) must be laid before the company in general meeting or sent to every member to whom the auditor's report is sent under section 430(3).

(7) A written statement under subsection (5) is sufficient for the purpose of a distribution to which it relates and that has been proposed. If such a written statement relates to distributions of any particular description, the statement is also sufficient for the purpose of a distribution included in those distributions, even though the distribution has not been proposed at the time of the statement.

(8) The purpose specified for subsections (3) and (5) is the purpose of determining, by reference to the financial items as stated in the financial statements, whether the distribution would be made in contravention of section 297, 298 or 299, or a prohibition or restriction in that section as modified under section 300.

Section:

305

Interim financial statements specified for purposes of section 302

(1) This section applies where the distribution would be made in contravention of section 297, 298 or 299, or a prohibition or restriction in that section as modified under section 300, if the amount of distribution that may be made were determined by reference to the financial items as stated in the financial statements specified in section 304.

(2) The financial statements specified for the purposes of section 302 are the company's financial statements
  (a) in the case of a listed company
    (i) that is necessary to enable a reasonable judgement to be made as to the amounts of the financial items; and
    (ii) in relation to which subsections (3), (5) and (6) are complied with; or
  (b) in the case of any other company, that is necessary to enable a reasonable judgement to be made as to the amounts of the financial items.

(3) Subject to subsection (4), the financial statements must
  (a) have been properly prepared in accordance with Subdivision 3 of Division 4 of Part 9; or
  (b) have been properly prepared in accordance with Subdivision 3 of Division 4 of Part 9, except only in relation to the matters that are not material for the purpose of determining, by reference to the financial items as stated in the financial statements, whether the distribution would be made in contravention of section 297, 298 or 299, or a prohibition or restriction in that section as modified under section 300.

(4) The requirement under subsection (3) for any financial statements to be properly prepared in accordance with Subdivision 3 of Division 4 of Part 9 has effect subject to any modification that is necessary for applying that requirement to the financial statements prepared otherwise than for a financial year.

(5) A statement of financial position that forms part of the financial statements
  (a) must be approved by the directors;
  (b) must be signed by 2 directors on the directors' behalf; and
  (c) must state the name of the directors who signed the statement on the directors' behalf.

(6) A copy of the financial statements must have been delivered to the Registrar for registration.

Section:

306

Initial financial statements specified for purposes of section 302

(1) If the distribution is proposed to be declared before any financial statements are laid before the company in general meeting under section 429(1) or sent to every member under section 430(3), the financial statements specified for the purposes of section 302 are the company's financial statements
  (a) in the case of a listed company
    (i) that are necessary to enable a reasonable judgement to be made as to the amounts of the financial items; and
    (ii) in relation to which subsections (2), (4), (5), (6) and (7) are complied with; or
  (b) in the case of any other company, that are necessary to enable a reasonable judgement to be made as to the amounts of the financial items.

(2) Subject to subsection (3), the financial statements must
  (a) have been properly prepared in accordance with Subdivision 3 of Division 4 of Part 9; or
  (b) have been properly prepared in accordance with Subdivision 3 of Division 4 of Part 9, except only in relation to the matters that are not material for the purpose specified in subsection (8).

(3) The requirement under subsection (2) for any financial statements to be properly prepared in accordance with Subdivision 3 of Division 4 of Part 9 has effect subject to any modification that is necessary for applying that requirement to any financial statements prepared otherwise than for a financial year.

(4) A statement of financial position that forms part of the financial statements
  (a) must be approved by the directors;
  (b) must be signed by 2 directors on the directors' behalf; and
  (c) must state the name of the directors who signed the statement on the directors' behalf.

(5) The company 's auditor must have prepared a report on the financial statements stating whether, in the auditor's opinion, the financial statements satisfy subsection (2)(a).

(6) If, in the auditor's report, the auditor has not given an unqualified opinion to the effect that the financial statements satisfy subsection (2)(a), the auditor must have given a written statement as to whether, in the auditor's opinion, the matter in respect of which the report is qualified is material for the purpose specified in subsection (8).

(7) A copy of the financial statements, of the auditor's report of the financial statements, and of any written statement under subsection (6), must have been delivered to the Registrar for registration.

(8) The purpose specified for subsections (2) and (6) is the purpose of determining, by reference to the financial items as stated in the financial statements, whether the distribution would be made in contravention of section 297, 298 or 299, or a prohibition or restriction in that section as modified under section 300.

Part:7

Debentures

Division:1

Preliminary

Section:

307

Interpretation

In this Part
branch register (登記支冊) means a branch register kept under section 312;
debenture (債權證) , in relation to a company
  (a) includes bonds and any other debt securities of the company, whether or not constituting a charge on the assets of the company; and
  (b) except in sections 308, 311(2)(a), 312 and 331(1)(a) and Divisions 3 and 4, includes debenture stock;
register of debenture holders (債權證持有人登記冊) means a register kept under section 308.

Division:2

Register of Debenture Holders

Section:

308

Register of debenture holders

(1) If a company issues a series of debentures, or any debenture stock, that are not transferable by delivery, the company must keep in the English or Chinese language a register of the holders of the debentures or debenture stock.

(2) A company must enter in the register of debenture holders
  (a) the name and address of each holder of debentures or debenture stock;
  (b) the amount of debentures or debenture stock held by each holder;
  (c) the date on which each person is entered in the register as a holder of debentures or debenture stock; and
  (d) the date on which any person ceases to be a holder of debentures or debenture stock.

(3) If a company contravenes subsection (1) or (2), the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

Section:

309

Place where register must be kept

(1) A company must keep its register of debenture holders at
  (a) the company's registered office; or
  (b) a place prescribed by regulations made under section 657.

(2) A company must notify the Registrar of the place at which the register of debenture holders is kept. The notice must be in the specified form and delivered to the Registrar for registration within 15 days after the register is first kept at that place.

(3) A company must notify the Registrar of any change (other than a change of the address of the company's registered office) in the place at which the register of debenture holders is kept. The notice must be in the specified form and delivered to the Registrar for registration within 15 days after the change.

(4) Subsection (2) does not require a company to notify the Registrar of the place at which the register of debenture holders is kept
  (a) if, in the case of a register that came into existence on or after the commencement date* of this Division, it has at all times been kept at the company's registered office; or
  (b) if
    (i) immediately before that commencement date*, the company kept a register for the purposes of section 74A of the predecessor Ordinance; and
    (ii) on and after that commencement date*, that register is kept as a register of debenture holders for the purposes of section 308(1) at the place at which it was kept immediately before that commencement date*.

(5) If a company contravenes subsection (1), (2) or (3), the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

Section:

310

Right to inspect and request copy

(1) A member of a company is entitled, on request made in the prescribed manner and without charge, to inspect the register of debenture holders of the company in accordance with regulations made under section 657.

(2) A person who is registered in the register as a debenture holder of the company is entitled, on request made in the prescribed manner and without charge, to inspect the register in accordance with regulations made under section 657.

(3) Any other person is entitled, on request made in the prescribed manner and on payment of a prescribed fee, to inspect the register in accordance with regulations made under section 657.

(4) A person is entitled, on request and on payment of a prescribed fee, to be provided with a copy of the register of debenture holders of a company, or any part of it, in accordance with regulations made under section 657.

(5) A debenture holder of a company or the trustee for all debenture holders of a company is entitled, on request and on payment of a prescribed fee, to be provided with a copy of any trust deed or any other document securing the issue of the debentures in accordance with regulations made under section 657.

(6) In this section
prescribed(訂明) means prescribed by regulations made under section 657.

Section:

311

Power to close register of debenture holders

(1) A company may, on giving notice in accordance with subsection (2), close its register of debenture holders, or any part of it, for any period or periods not exceeding in the whole 30 days in each year.

(2) A notice for the purposes of subsection (1)
  (a) in the case of a company having any of the debentures or debenture stock mentioned in section 308(1) listed on a recognized stock market, must be given
    (i) in accordance with the listing rules applicable to the stock market; or
    (ii) by advertisement in a newspaper circulating generally in Hong Kong; and
  (b) in the case of any other company, must be given by advertisement in a newspaper circulating generally in Hong Kong.

(3) The period of 30 days mentioned in subsection (1) may be extended in respect of any year by a resolution passed in that year by a majority in value of the debenture holders present in person or, if proxies are permitted, by proxy at a meeting summoned for the purpose or otherwise in accordance with the trust deed or any other document securing the issue of the debentures.

(4) The period of 30 days mentioned in subsection (1) must not be extended for a further period or periods exceeding 30 days in the whole in any year.

(5) A company must, on demand, provide any person seeking to inspect a register or part of a register that is closed under this section with a certificate signed by the company secretary of the company stating the period for which, and by whose authority, it is closed.

(6) If a company contravenes subsection (5), the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 3.

Section:

312

Branch register of debenture holders

(1) If a company issues in a place outside Hong Kong a series of debentures, or any debenture stock, that are not transferable by delivery, the company may, if it is authorized to do so by its articles, cause to be kept there a branch register of the holders of the debentures or debenture stock who are resident there.

(2) A company that begins to keep a branch register must deliver to the Registrar for registration a notice in the specified form within 15 days after doing so, stating the address where the branch register is kept.

(3) A company that keeps a branch register must deliver to the Registrar for registration a notice in the specified form of any change in the address where the branch register is kept, within 15 days after the change.

(4) If a company contravenes subsection (2) or (3), the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

Section:

313

Keeping of branch register

(1) A branch register must be kept in the same manner in which the company's register of debenture holders (the principal register) is by this Ordinance required to be kept.

(2) A company that keeps a branch register may close it in the same manner in which the principal register may be closed under section 311 except that the advertisement mentioned in that section must be inserted in a newspaper circulating generally in the place in which the branch register is kept.

(3) A company that keeps a branch register
  (a) must cause a duplicate of it to be kept at the place at which the company's principal register is kept; and
  (b) must, within 15 days after an entry is made in the branch register
    (i) transmit a copy of the entry to its registered office; and
    (ii) update the duplicate of the branch register.

(4) A duplicate of a branch register is to be regarded for all the purposes of this Ordinance as part of the principal register.

(5) Subject to the provisions of this Ordinance, a company may by its articles make any provision that it thinks fit respecting the keeping of branch registers.

(6) If a company contravenes subsection (3), the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

Section:

314

Transactions in debentures registered in branch register

(1) The debentures registered in a branch register of a company must be distinguished from those registered in the company's register of debenture holders.

(2) No transaction with respect to any debentures registered in a branch register may, during the continuance of that registration, be registered in any other register.

Section:

315

Discontinuance of branch register

(1) A company may discontinue a branch register.

(2) If a company discontinues a branch register, all the entries in that register must be transferred to
  (a) some other branch register kept in the same place outside Hong Kong by the company; or
  (b) the company's register of debenture holders.

(3) If a company discontinues a branch register, it must, within 15 days after the discontinuance, deliver to the Registrar for registration a notice in the specified form informing the Registrar of
  (a) the discontinuance; and
  (b) the register to which the entries have been transferred.

(4) If a company contravenes subsection (3), the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

Division:3

Allotment of Debentures or Debenture Stock

Section:

316

Return of allotment

(1) Within one month after an allotment of debentures or debenture stock, a company must deliver to the Registrar for registration a return of the allotment that complies with subsection (2).

(2) A return
  (a) must be in the specified form; and
  (b) must state
    (i) the amount of debentures or debenture stock allotted;
    (ii) the name and address of each allottee;
    (iii) the date of allotment of debentures or debenture stock; and
    (iv) the date of redemption of debentures or debenture stock.

(3) If a company contravenes subsection (1), the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

(4) If a company fails to deliver a return that complies with subsection (2) within one month after an allotment of debentures or debenture stock, the Court may, on application by the company or a responsible person of the company, extend the period for delivery of the return by a period determined by the Court.

(5) The Court may extend a period under subsection (4) only if it is satisfied
  (a) that failure to deliver the return was accidental or due to inadvertence; or
  (b) that it is just and equitable to extend the period.

(6) If the Court extends the period for delivery of a return, any liability already incurred by the company or a responsible person of the company for an offence under subsection (3) is extinguished and subsection (1) has effect as if the reference to one month were a reference to the extended period.

Section:

317

Registration of allotment

(1) A company must register an allotment of debentures or debenture stock as soon as practicable and in any event within 2 months after the date of the allotment, by entering in its register of debenture holders the information mentioned in section 308(2).

(2) If a company fails to register an allotment of debentures or debenture stock within 2 months after the date of the allotment, the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

Section:

318

Issue of debenture or certificate for debenture stock on allotment

(1) Within 2 months after an allotment of debentures or debenture stock, a company must
  (a) in the case of an allotment of debentures, complete the debentures and have them ready for delivery; or
  (b) in the case of an allotment of debenture stock, complete the certificates for the debenture stock and have them ready for delivery.

(2) Subsection (1) does not apply if the conditions of allotment of the debentures or debenture stock provide otherwise.

(3) If a company contravenes subsection (1), the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

Section:

319

Court order for delivery of debenture or certificate for debenture stock

(1) If a company contravenes section 318 in relation to an allotment of debentures or debenture stock, a person entitled to the debentures or certificates for the debenture stock may serve a notice on the company requiring it to deliver the debentures or certificates to the person within 10 days.

(2) If a company on which a notice has been served under subsection (1) does not deliver the debentures or certificates within 10 days after service of the notice, the person may apply to the Court for an order under subsection (3).

(3) On an application under subsection (2), the Court may make an order directing the company and any officer of the company to deliver the debentures or certificates to the person within the period specified in the order.

(4) The order may provide that all costs of and incidental to the application are to be borne by the company or by an officer of the company responsible for the contravention.

Division:4

Transfer of Debentures or Debenture Stock

Section:

320

Requirement for instrument of transfer

(1) A company must not register a transfer of debentures or debenture stock of the company unless a proper instrument of transfer has been delivered to the company.

(2) Subsection (1) does not affect any power of a company to register as a debenture holder a person to whom the right to debentures or debenture stock has been transmitted by operation of law.

Section:

321

Registration of transfer or refusal of registration

(1) The transferee or transferor of debentures or debenture stock of a company may lodge the transfer with the company.

(2) Within 2 months after the transfer is lodged, the company must either
  (a) register the transfer; or
  (b) send the transferee and the transferor notice of refusal to register the transfer.

(3) If a company contravenes subsection (2), the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

Section:

322

Certification of transfer

(1) The certification by a company of an instrument of transfer of any debentures or debenture stock of the company—
  (a) is a representation by the company to any person acting on the faith of the certification that documents have been produced to the company that evidence title to the debentures or debenture stock in the transferor named in the instrument; and
  (b) is not a representation that the transferor has any title to the debentures or debenture stock.

(2) If a person acts on the faith of a false certification by a company made negligently, the company is under the same liability to the person as if the certification had been made fraudulently.

(3) For the purposes of this section, an instrument of transfer is certified by a company if it bears
  (a) the words certificate lodged, or words to the same effect, in English or Chinese; and
  (b) under or adjacent to those words, the signature or initials of a person having the actual or apparent authority to certify transfers on behalf of the company.

(4) Unless the contrary is proved, a signature or initials appearing on an instrument of transfer as mentioned in subsection (3)(b) must be regarded
  (a) as the signature or initials of the person whose signature or initials they purport to be; and
  (b) as having been placed on the instrument by that person or by another person who has the actual or apparent authority to use the signature or initials for the purpose of certifying transfers on behalf of the company.

Section:

323

Issue of debenture or certificate for debenture stock on transfer

(1) Within the period specified in subsection (2), a company must
  (a) in the case of a transfer of debentures, complete the debentures and have them ready for delivery; or
  (b) in the case of a transfer of debenture stock, complete the certificates for the debenture stock and have them ready for delivery.

(2) The period is
  (a) for a private company, 2 months after the day on which the transfer is lodged with the company;
  (b) for any other company, 10 business days after the day on which the transfer is lodged with the company.

(3) Subsection (1) does not apply to a transfer if
  (a) the conditions of issue of the debentures or debenture stock provide otherwise;
  (b) stamp duty has not been paid in respect of the transfer;
  (c) the transfer is invalid; or
  (d) the company, being entitled to do so, refuses to register the transfer.

(4) If a company contravenes subsection (1), the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

(5) In this section
business day(營業日) means a day on which a recognized stock market is open for the business of dealing in securities.

Section:

324

Court order for delivery of debenture or certificate for debenture stock

(1) If a company contravenes section 323 in relation to a transfer of debentures or debenture stock, a person entitled to the debentures or certificates for the debenture stock may serve a notice on the company requiring it to deliver the debentures or certificates to the person within 10 days.

(2) If a company on which a notice has been served under subsection (1) does not deliver the debentures or certificates within 10 days after service of the notice, the person may apply to the Court for an order under subsection (3).

(3) On an application under subsection (2), the Court may make an order directing the company and any officer of the company to deliver the debentures or certificates to the person within the period specified in the order.

(4) The order may provide that all costs of and incidental to the application are to be borne by the company or by an officer of the company responsible for the contravention.

Division:5

Miscellaneous Provisions

Section:

325

Evidence of grant of probate etc.

For the purposes of a transfer of debentures or transmission of the right to debentures, a company must accept as sufficient evidence of the grant of probate of the will or letters of administration of a deceased person the production to the company of a document that is by law sufficient evidence of that grant.

Section:

326

Form of register of holders of debentures kept under instrument made by company

(1) This section applies to a register of holders of debentures that is required to be kept under an instrument made by a company.

(2) If a provision of the instrument requires the register to be kept in a legible form, the provision is to be construed as requiring the register to be kept either
  (a) in a legible form; or
  (b) in a non-legible form capable of being reproduced in a legible form.

Section:

327

Perpetual debentures

(1) Despite any rule of equity to the contrary, a condition contained in any debentures, or in a deed securing the issue of any debentures, is not invalid only because the debentures are, by the condition, made
  (a) irredeemable;
  (b) redeemable only on the happening of a contingency (however remote); or
  (c) redeemable only on the expiration of a period of time (however long).

(2) Subsection (1) applies to debentures whenever issued and to deeds whenever executed.

Section:

328

Power to reissue redeemed debentures

(1) This section applies if a company has, whether before, on or after the commencement date* of this section, redeemed any debentures previously issued.

(2) A company has, and is to be regarded as always having had, the power to reissue redeemed debentures, either by reissuing the same debentures or by issuing new debentures in their place, unless
  (a) a provision to the contrary (express or implied) is contained in the company's articles or any contract made by the company; or
  (b) the company has, by passing a resolution to that effect or by any other act, manifested its intention that the debentures are to be cancelled.

(3) On a reissue of any redeemed debentures, a person entitled to the debentures has, and is to be regarded as always having had, the same priorities as if the debentures had never been redeemed.

(4) A reissue of redeemed debentures, whether before, on or after the commencement date* of this section
  (a) is to be regarded as an issue of new debentures for the purposes of stamp duty; and
  (b) is not to be regarded as an issue of new debentures for the purposes of any provision limiting the amount or number of debentures to be issued.

(5) A person lending money on the security of any debentures reissued under this section that appear to be stamped may give the debentures in evidence in any proceedings for enforcing the person's security.

(6) If a person gives the debentures in evidence in any proceedings for enforcing the person's security under subsection (5), the stamp duty and penalty payable under the Stamp Duty Ordinance (Cap 117) in respect of the reissue of the debentures are to be paid by the company.

(7) Subsections (5) and (6) do not apply if the person had notice or, but for the person's negligence, might have discovered that the debentures were not stamped.

(8) If any debentures redeemed before 1 July 1933 are reissued on or after that date, the reissue does not prejudice, and is to be regarded as never having prejudiced, any right or priority that a person would have had under or by virtue of any mortgage or charge created before that date.

Section:

329

Deposit of debentures to secure advances

If a company has, whether before, on or after the commencement date* of this section, deposited any of its debentures to secure advances from time to time on current account or otherwise, the debentures are not to be regarded as having been redeemed only because the account of the company has ceased to be in debit while the debentures remained so deposited.

Section:

330

Specific performance of contracts to subscribe for debentures

A contract with a company to take up and pay for any debentures of the company may be enforced by an order for specific performance.

Section:

331

Court may order meeting of debenture holders

(1) This section applies to any person who holds
  (a) any debentures that form part of a series issued by a company and rank equally with the other debentures of that series; or
  (b) any debenture stock of a company.

(2) If a person to whom this section applies, either alone or jointly with any other such person, holds at least the specified percentage of the value of the company's debentures, the person may apply to the Court for a meeting of the company's debenture holders to be held to give directions to the trustee for the debenture holders.

(3) Subsection (2) may be excluded by the debentures, or the trust deeds or other documents securing the issue of the debentures.

(4) In this section
specified percentage(指明百分比) means
  (a) 10%; or
  (b) the higher percentage that may be provided for in the debentures, or the trust deeds or other documents securing the issue of the debentures.

Section:

332

Liability of trustees for debenture holders

(1) A provision contained in
  (a) a trust deed securing an issue of debentures; or
  (b) a contract with the holders of debentures secured by a trust deed,
is void to the extent that it would exempt a trustee of the trust deed from, or indemnify the trustee against, liability for breach of trust for the trustee's failure to show the degree of care and diligence required of the trustee as a trustee, having regard to the provisions of the trust deed conferring on the trustee any powers, authorities or discretions.

(2) Subsection (1) does not
  (a) invalidate a release otherwise validly given in respect of anything done, or omitted to be done, by a trustee before the giving of the release;
  (b) invalidate any provision enabling such a release to be given
    (i) on being agreed to by a majority of at least 75% in value of the debenture holders present and voting in person or, if proxies are permitted, by proxy at a meeting summoned for the purpose; and
    (ii) either with respect to specific acts or omissions or on the trustee dying or ceasing to act;
  (c) invalidate any provision in force on 31 August 1984 so long as any person who is then entitled to the benefit of the provision, or who is afterwards given the benefit of the provision under subsection (3), remains a trustee of the trust deed; or
  (d) deprive any person of any exemption or right to be indemnified in respect of anything done, or omitted to be done, by the person while any provision mentioned in paragraph (c) was in force.

(3) While a trustee of a trust deed remains entitled to the benefit of a provision saved by subsection (2)(c) or (d), the benefit may be given, in accordance with subsection (4), to
  (a) all present and future trustees of the trust deed; or
  (b) any named trustees or proposed trustees of the trust deed.

(4) The benefit is to be given by a resolution passed by a majority of at least 75% in value of the debenture holders present in person or, if proxies are permitted, by proxy at a meeting summoned for the purpose
  (a) in accordance with the provisions of the trust deed; or
  (b) if the trust deed makes no provision for summoning meetings, in a manner approved by the Court.

Part:8

Registration of Charges

Division:1

Preliminary

Section:

333

Interpretation

(1) In this Part
charge (押記) includes mortgage;
manager (經理人) excludes a special manager of the estate or business of a company or registered non-Hong Kong company appointed under section 216 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32).

(2) For the purposes of this Part
  (a) if a ship or aircraft of a registered non-Hong Kong company is registered in Hong Kong, it is to be regarded as property in Hong Kong of the company even though it is physically located outside Hong Kong; and
  (b) if a ship or aircraft of a registered non-Hong Kong company is registered in a place outside Hong Kong, it is to be regarded as property outside Hong Kong of the company even though it is physically located in Hong Kong.

(3) In Divisions 2 and 4, a reference to a person interested in a charge excludes the company or registered non-Hong Kong company creating the charge.

(4) For the purposes of Divisions 2 and 3, a copy of an instrument in relation to a charge delivered for registration is a certified copy if it is certified as a true copy
  (a) by
    (i) a director or company secretary of the company or registered non-Hong Kong company delivering the copy for registration; or
    (ii) a person authorized by that company or registered non-Hong Kong company for the purpose; or
  (b) by
    (i) any other person interested in the charge; or
    (ii) in the case of
      (A) an interested person who is a natural person, a person authorized by the interested person for the purpose; or
      (B) an interested person that is a body corporate, a person authorized by the interested person for the purpose, or a director or company secretary of the interested person.

(5) In Division 6, a reference to the charged property of a registered non-Hong Kong company is a reference to
  (a) the property in Hong Kong of the company and subject to a charge created by the company, except property that was not in Hong Kong when the charge was created; or
  (b) the property in Hong Kong of the company and subject to a charge that subsisted when the property was acquired by the company, except property that was not in Hong Kong when it was so acquired.

Division:2

Obligation to Register Specified Charges after Creation

Section:

334

Specified charge

(1) In this Division, a reference to a specified charge is a reference to any of the following charges created on or after the commencement date* of this section
  (a) a charge on uncalled share capital of the company;
  (b) a charge created or evidenced by an instrument that, if executed by a natural person, would require registration as a bill of sale;
  (c) a charge on land (wherever situate) or any interest in land, except a charge for any rent or other periodical sum issuing out of land;
  (d) a charge on book debts of the company;
  (e) a charge on calls made but not paid;
  (f) a charge on instalments due, but not paid, on the issue price of shares;
  (g) a charge on a ship or any share in a ship;
  (h) a charge on an aircraft or any share in an aircraft;
    (i) a charge on
    (i) goodwill;
    (ii) a patent or a licence under a patent;
    (iii) a trademark; or
    (iv) a copyright or a licence under a copyright;
  (j) a floating charge on the company's undertaking or property.

(2) For the purposes of subsection (1)(c), the holding of debentures entitling the holder to a charge on land is not to be regarded as an interest in the land.

(3) For the purposes of subsection (1)(d)
  (a) the deposit by way of security of a negotiable instrument given to secure the payment of book debts is not to be regarded as a charge on those book debts; and
  (b) if a company maintains a deposit of money with another person (whether the money is deposited by the company or by any other person for the company 's benefit), a charge on the company 's right to repayment of the money is not to be regarded as a charge on book debts of the company.

(4) For the purposes of subsection (1)(d) and (j), if a company charters a ship from a shipowner, the shipowner's lien on the subfreights for amounts due under the charter is not to be regarded as a charge on book debts of the company or as a floating charge on the company's undertaking or property.

Section:

335

Company must register specified charge created by it

(1) A company must deliver a statement of the particulars of every specified charge created by the company, together with a certified copy of the instrument (if any) creating or evidencing the charge, to the Registrar for registration within the registration period specified in subsection (5)(a).

(2) Where
  (a) a specified charge created by a company
    (i) is given in a debenture forming part of a series by reference to any other instrument containing the charge (whether or not also contained in the debenture); or
    (ii) is contained in a debenture forming part of a series (but not given in the debenture by reference to any other instrument); and
(b) every holder of the debentures of the series is entitled equally to the benefit of the charge, the company is to be regarded as having complied with subsection (1) in relation to the specified charge if the company delivers a statement of the particulars of the charge, together with a certified copy of an instrument specified in subsection (4), to the Registrar for registration within the registration period specified in subsection (5)(b).
(3) A person interested in a specified charge
  (a) may deliver a statement of the particulars of the charge, together with a certified copy of the instrument (if any) creating or evidencing the charge, to the Registrar for registration within the registration period specified in subsection (5)(a); or
  (b) may, in the case of subsection (2), deliver a statement of the particulars of the charge, together with a certified copy of an instrument specified in subsection (4), to the Registrar for registration within the registration period specified in subsection (5)(b).

(4) The instrument is
  (a) for the purposes of subsection (2)(a)(i), the instrument by reference to which the specified charge is given; or
  (b) for the purposes of subsection (2)(a)(ii), any one debenture of the series.

(5) The registration period is
  (a) for the purposes of subsection (1) or (3)(a)
    (i) one month after the date on which the specified charge is created; or
    (ii) where the specified charge is created outside Hong Kong and comprising property situate outside Hong Kong, one month after the date on which a certified copy of the instrument creating or evidencing that charge could, if despatched with due diligence, have been received in Hong Kong in due course of post; and
  (b) for the purposes of subsection (2) or (3)(b)
    (i) one month after the execution of the instrument by reference to which the specified charge is given or if there is no such instrument, one month after the execution of the first debenture of the series; or
    (ii) where the specified charge is created outside Hong Kong and comprising property situate outside Hong Kong, one month after the date on which a certified copy of the specified instrument could, if despatched with due diligence, have been received in Hong Kong in due course of post.

(6) A statement of the particulars of a specified charge
  (a) must be in the specified form; and
  (b) must be accompanied by the prescribed fee.

(7) If a person interested in a specified charge pays to the Registrar any prescribed fee for the registration of a statement of the particulars of the charge, the fee is recoverable from the company creating the charge.

(8) If a specified charge is created in Hong Kong and comprises property situate outside Hong Kong, a certified copy of the instrument creating or purporting to create the charge may be delivered to the Registrar for registration under subsection (1), (2) or (3) even though further proceedings may be necessary to make that charge valid or effectual according to the law of the place in which the property is situate.

Section:

336

Registered non-Hong Kong company must register specified charge created by it

(1) A registered non-Hong Kong company must deliver a statement of the particulars of every specified charge created by the company on property in Hong Kong of the company, together with a certified copy of the instrument (if any) creating or evidencing the charge, to the Registrar for registration within the registration period specified in subsection (6)(a).

(2) Where
  (a) a specified charge created by a registered non-Hong Kong company on property in Hong Kong of the company
    (i) is given in a debenture forming part of a series by reference to any other instrument containing the charge (whether or not also contained in the debenture); or
    (ii) is contained in a debenture forming part of a series (but not given in the debenture by reference to any other instrument); and
(b) every holder of the debentures of the series is entitled equally to the benefit of the charge, the company is to be regarded as having complied with subsection (1) in relation to the specified charge if the company delivers a statement of the particulars of the charge, together with a certified copy of an instrument specified in subsection (4), to the Registrar for registration within the registration period specified in subsection (6)(b).

(3) A person interested in a specified charge
  (a) may deliver a statement of the particulars of the charge, together with a certified copy of the instrument (if any) creating or evidencing the charge, to the Registrar for registration within the registration period specified in subsection (6)(a); or
  (b) may, in the case of subsection (2), deliver a statement of the particulars of the charge, together with a certified copy of an instrument specified in subsection (4), to the Registrar for registration within the registration period specified in subsection (6)(b).

(4) The instrument is
(a) for the purposes of subsection (2)(a)(i), the instrument by reference to which the specified charge is given; or
  (b) for the purposes of subsection (2)(a)(ii), any one debenture of the series.

(5) Subsections (1) and (2) do not apply to a charge on property if the property was not in Hong Kong when the charge was created by the registered non-Hong Kong company.

(6) The registration period is
  (a) for the purposes of subsection (1) or (3)(a), one month after the date on which the specified charge is created; and
  (b) for the purposes of subsection (2) or (3)(b)
    (i) one month after the execution of the instrument by reference to which the specified charge is given; or
    (ii) if there is no such instrument, one month after the execution of the first debenture of the series.

(7) A statement of the particulars of a specified charge
  (a) must be in the specified form; and
  (b) must be accompanied by the prescribed fee.

(8) If a person interested in a specified charge pays to the Registrar any prescribed fee for the registration of a statement of the particulars of the charge, the fee is recoverable from the registered non-Hong Kong company creating the charge.

Section:

337

Consequences of contravention of section 335 or 336

(1) This section applies if
  (a) a company contravenes section 335(1) in relation to a specified charge, and a person interested in the charge has not registered the charge under section 335(3); or
  (b) a registered non-Hong Kong company contravenes section 336(1) in relation to a specified charge, and a person interested in the charge has not registered the charge under section 336(3).

(2) Subject to section 346, the company or registered non-Hong Kong company, and every responsible person of the company or registered non-Hong Kong company, commit an offence.

(3) A person who commits an offence under subsection (2) is liable to a fine at level 5 and, in the case of a continuing offence, to a further fine of $1,000 for each day during which the offence continues.

(4) Subject to section 346, the specified charge is void against any liquidator and creditor of the company or registered non-Hong Kong company so far as any security on its undertaking or property is conferred by the charge.

(5) Subsection (4) does not prejudice any contract or obligation for repayment of the money secured by the specified charge.

(6) At the lender's option, the money secured by a specified charge becomes immediately payable when the charge becomes void under subsection (4).

Division:3

Obligation to Register Existing Charges

Section:

338

Company must register charge existing on property acquired

(1) This section applies if
  (a) a company acquires property subject to a charge; and
  (b) the charge is of a kind that a statement of its particulars would have been required by section 335(1) to be delivered for registration had it been created by the company after the acquisition.

(2) The company must deliver a statement of the particulars of the charge, together with a certified copy of the instrument (if any) creating or evidencing the charge, to the Registrar for registration within the registration period specified in subsection (3).

(3) The registration period is
  (a) one month after the date on which the acquisition is completed; or
  (b) where the property is situate, and the charge was created, outside Hong Kong, one month after the date on which a certified copy of the instrument creating or evidencing the charge could, if despatched with due diligence, have been received in Hong Kong in due course of post.

(4) A statement of the particulars of a charge
  (a) must be in the specified form; and
  (b) must be accompanied by the prescribed fee.

(5) Subject to section 346, if a company contravenes subsection (2), the company, and every responsible person of the company, commit an offence.

(6) A person who commits an offence under subsection (5) is liable to a fine at level 5 and, in the case of a continuing offence, to a further fine of $1,000 for each day during which the offence continues.

Section:

339

Registered non-Hong Kong company must register charge existing on property acquired

(1) This section applies if
  (a) a registered non-Hong Kong company acquires property in Hong Kong subject to a charge; and
  (b) the charge is of a kind that a statement of its particulars would have been required by section 336(1) to be delivered for registration had it been created by the registered non-Hong Kong company after the acquisition.

(2) Subsection (1)(a) does not apply to a charge on property if the property was not in Hong Kong when the property was acquired by the registered non-Hong Kong company.

(3) The registered non-Hong Kong company must deliver a statement of the particulars of the charge, together with a certified copy of the instrument (if any) creating or evidencing the charge, to the Registrar for registration within the registration period specified in subsection (4).

(4) The registration period is one month after the date on which the acquisition is completed. (5) A statement of the particulars of a charge
  (a) must be in the specified form; and
  (b) must be accompanied by the prescribed fee.

(6) Subject to section 346, if a registered non-Hong Kong company contravenes subsection (3), the company, and every responsible person of the company, commit an offence.

(7) A person who commits an offence under subsection (6) is liable to a fine at level 5 and, in the case of a continuing offence, to a further fine of $1,000 for each day during which the offence continues.

Section:

340

Registered non-Hong Kong company must register charge existing on property on date of company’s registration under Part 16

(1) This section applies if
  (a) a registered non-Hong Kong company has, on the date of its registration under Part 16, property in Hong Kong subject to
    (i) a charge created by the company; or
    (ii) a charge that subsisted when the property was acquired; and
  (b) the charge is of a kind that a statement of its particulars would have been required by section 336(1) or 339(3) to be delivered for registration had the charge been created by the company, or had the property been acquired by the company, after the company has been registered under Part 16.

(2) The registered non-Hong Kong company must deliver a statement of the particulars of the charge, together with a certified copy of the instrument (if any) creating or evidencing the charge, to the Registrar for registration within the registration period specified in subsection (5).

(3) If, in the case of subsection (1)(a)(i)
  (a) the charge
    (i) is given in a debenture forming part of a series by reference to any other instrument containing the charge (whether or not also contained in the debenture); or
    (ii) is contained in a debenture forming part of a series (but not given in the debenture by reference to any other instrument); and
  (b) every holder of the debentures of the series is entitled equally to the benefit of the charge, the registered non-Hong Kong company is to be regarded as having complied with subsection (2) in relation to the charge if that company delivers a statement of the particulars of the charge, together with a certified copy of an instrument specified in subsection (4), to the Registrar for registration within the registration period specified in subsection (5).

(4) The instrument is
  (a) for the purposes of subsection (3)(a)(i), the instrument by reference to which the charge is given; or
  (b) for the purposes of subsection (3)(a)(ii), any one debenture of the series.

(5) The registration period is one month after the date on which the registered non-Hong Kong company is registered under Part 16.

(6) A statement of the particulars of a charge
  (a) must be in the specified form; and
  (b) must be accompanied by the prescribed fee.

(7) Subject to section 346, if a registered non-Hong Kong company contravenes subsection (2), the company, and every responsible person of the company, commit an offence.

(8) A person who commits an offence under subsection (7) is liable to a fine at level 5 and, in the case of a continuing offence, to a further fine of $1,000 for each day during which the offence continues.

Division:4

Obligation to Register Other Particulars of Debentures

Section:

341

Company or registered non-Hong Kong company must register particulars of issue of debentures

(1) This section applies if
  (a) a debenture forming part of a series
    (i) contains a charge created by a company or registered non-Hong Kong company; or
    (ii) gives a charge created by a company or registered non-Hong Kong company, by reference to any other instrument containing the charge;
  (b) every holder of the debentures of the series is entitled equally to the benefit of the charge; and
  (c) a statement of the particulars of the charge is required to be delivered for registration under section 335(2), 336(2) or 340(3).

(2) The company or registered non-Hong Kong company must deliver a statement of the particulars of every issue of the debentures of the series to the Registrar for registration within the registration period specified in subsection (4).

(3) A person interested in the charge may deliver a statement of the particulars of an issue of debentures to the Registrar for registration within the registration period specified in subsection (4).

(4) The registration period is
  (a) if a statement of the particulars of the charge is delivered for registration under section 335(2) or 336(2)
    (i) in the case of an issue of debentures made at the time of the creation of the charge, the registration period specified in relation to the registration of the charge in section 335(5)(b) or 336(6)(b); or
    (ii) in the case of any subsequent issue of debentures, one month after the date of the issue; or
  (b) if a statement of the particulars of the charge is delivered for registration under section 340(3)
    (i) in the case of an issue of debentures made on or before the registration under Part 16, the registration period specified in relation to the registration of the charge in section 340(5); or
    (ii) in the case of any subsequent issue of debentures, one month after the date of the issue.

(5) A statement of the particulars of an issue of debentures must be in the specified form.

(6) Without limiting section 23, a statement of the particulars of an issue of debentures must contain the date and the amount of the issue.

(7) Subject to section 346, if subsection (2) is contravened, and a person interested in the charge has not delivered a statement of the particulars of the issue of debentures for registration under subsection (3), the company or registered non-Hong Kong company, and every responsible person of the company or registered non-Hong Kong company, commit an offence.

(8) A person who commits an offence under subsection (7) is liable to a fine at level 5 and, in the case of a continuing offence, to a further fine of $1,000 for each day during which the offence continues.

(9) A contravention of subsection (2) does not affect the validity of the debentures issued.

(10) In this section, a reference to the time of the creation of a charge is a reference to the time of execution of
  (a) the instrument by reference to which the charge is given; or
  (b) if there is no such instrument, the first debenture of the series.

Section:

342

Company or registered non-Hong Kong company must register particulars of commission etc. in relation to debentures

(1) This section applies if
  (a) any commission, allowance or discount has been paid or made, directly or indirectly, by a company or registered non-Hong Kong company to any person in consideration of the person
    (i) subscribing or agreeing to subscribe, absolutely or conditionally, for any debenture of the company or registered non-Hong Kong company; or
    (ii) procuring or agreeing to procure absolute or conditional subscriptions for any debenture of the company or registered non-Hong Kong company;
  (b) the debenture
    (i) creates or evidences a charge; or
    (ii) forms part of a series of debentures, and either contains a charge or gives a charge by reference to any other instrument containing a charge;
  (c) the charge is created by the company or registered non-Hong Kong company; and
  (d) a statement of the particulars of the charge is required to be delivered for registration under
    (i) section 335(1);
    (ii) section 336(1); or
    (iii) section 340(2).

(2) The company or registered non-Hong Kong company must deliver a statement of the particulars of the commission, allowance or discount to the Registrar for registration within the registration period specified in subsection (6)(a).

(3) Where
  (a) in the case of subsection (1)(d)(i), a statement of the particulars of the charge is delivered for registration under section 335(2); or
  (b) in the case of subsection (1)(d)(ii), a statement of the particulars of the charge is delivered for registration under section 336(2), the company or registered non-Hong Kong company is to be regarded as having complied with subsection (2) if it delivers a statement of the particulars of the commission, allowance or discount to the Registrar for registration within the registration period specified in subsection (6)(b).

(4) Where, in the case of subsection (1)(d)(iii), a statement of the particulars of the charge is delivered for registration under section 340(3), the registered non-Hong Kong company is to be regarded as having complied with subsection (2) if it delivers a statement of the particulars of the commission, allowance or discount to the Registrar for registration within the registration period specified in subsection (6)(c).

(5) A person interested in the charge
  (a) may deliver a statement of the particulars of the commission, allowance or discount to the Registrar for registration within the registration period specified in subsection (6)(a); or
  (b) may, in the case of subsection (3), deliver a statement of the particulars of the commission, allowance or discount to the Registrar for registration within the registration period specified in subsection (6)(b).

(6) The registration period is
  (a) for the purposes of subsection (2) or (5)(a)
    (i) in the case of subsection (1)(d)(i), the registration period specified in relation to the registration of the charge in section 335(5)(a);
    (ii) in the case of subsection (1)(d)(ii), the registration period specified in relation to the registration of the charge in section 336(6)(a); or
    (iii) in the case of subsection (1)(d)(iii), the registration period specified in relation to the registration of the charge in section 340(5);
  (b) for the purposes of subsection (3) or (5)(b)
    (i) in the case of an issue of debentures made at the time of the creation of the charge, the registration period specified in relation to the registration of that charge in section 335(5)(b) or 336(6)(b); or
    (ii) in the case of any subsequent issue of debentures, one month after the date of the issue; or
  (c) for the purposes of subsection (4)
    (i) in the case of an issue of debentures made on or before the registration under Part 16, the registration period specified in relation to the registration of that charge in section 340(5); or
    (ii) in the case of any subsequent issue of debentures, one month after the date of the issue.

(7) A statement of the particulars of any commission, allowance or discount must be in the specified form.

(8) For the purposes of this section, the deposit of any debenture as security for any debt of a company or registered non-Hong Kong company is not to be regarded as an issue of debentures at a discount.

(9) In this section, a reference to the time of the creation of a charge is a reference to the time of execution of
  (a) the instrument by reference to which the charge is given; or
  (b) if there is no such instrument, the first debenture of the series.

Section:

343

Consequences of contravention of section 342

(1) Subject to section 346, if section 342(2) is contravened, and a person interested in the charge has not delivered a statement of the particulars of the commission, allowance or discount (as the case may be) for registration under section 342(5), the company or registered non-Hong Kong company, and every responsible person of the company or registered non-Hong Kong company, commit an offence.

(2) A person who commits an offence under subsection (1) is liable to a fine at level 5 and, in the case of a continuing offence, to a further fine of $1,000 for each day during which the offence continues.

(3) A contravention of section 342(2) does not affect the validity of the debentures issued.

Division:5

Provisions Supplementary to Divisions 2, 3 and 4

Section:

344

Certificate of registration

(1) This section applies if a statement of the particulars of a charge, and the requisite accompanying instrument, are delivered by a company or registered non-Hong Kong company, or by a person interested in the charge, to the Registrar for registration under Division 2 or 3.

(2) After registering the statement and the requisite accompanying instrument, the Registrar must issue a certificate to the company or registered non-Hong Kong company, or to the interested person, certifying registration of the charge under Division 2 or 3.

(3) A certificate of registration must be signed by the Registrar.

(4) A certificate of registration is conclusive evidence that the requirements of this Part as to registration have been satisfied.

Section:

345

Notification to Registrar of payment of debt, release, etc.

(1) This section applies if
  (a) the debt secured by a registered charge has been paid or satisfied in whole or in part; or
  (b) the whole or any part of the property or undertaking subject to a registered charge
    (i) has been released from the charge; or
    (ii) has ceased to form part of the company's or registered non-Hong Kong company's property or undertaking.

(2) The company or registered non-Hong Kong company, or the mortgagee or person entitled to the charge, may notify the Registrar of the payment, satisfaction, release or cessation.

(3) A notification
  (a) must be in the specified form;
  (b) must be accompanied by the prescribed fee; and
  (c) must be accompanied by a certified copy of any instrument required by the Registrar for the purpose of evidencing the payment, satisfaction, release or cessation.

(4) If the Registrar is satisfied from the instrument accompanying a notification that the payment, satisfaction, release or cessation did take place, the Registrar must process the notification, and the accompanying instrument, in the same way as if they were delivered to the Registrar for registration.

(5) For the purposes of this section, a copy of an instrument is a certified copy if it is certified as a true copy by
  (a) the mortgagee or the person entitled to the charge; or
  (b) in the case of
    (i) a mortgagee or entitled person who is a natural person, a person authorized by the mortgagee or entitled person for the purpose; or
    (ii) a mortgagee or entitled person that is a body corporate
      (A) a person authorized by the mortgagee or entitled person for the purpose; or
      (B) a director or company secretary of the mortgagee or entitled person. (6) For the purposes of this section, a charge is a registered charge
  (a) if
    (i) a statement of the particulars of the charge, and the requisite accompanying instrument, have been delivered to the Registrar for registration under Division 2 or 3; and
    (ii) the Registrar has recorded the information contained in the statement, and in that instrument, for the purposes of section 27(1); or
  (b) if
    (i) immediately before the commencement date* of this Division, the charge was registered under Part III of the predecessor Ordinance; or
    (ii) on or after the commencement date* of this Division, the charge has been registered under Part III of the predecessor Ordinance having a continuing effect under Schedule 11.

Section:

346

Extension of time for registration

(1) The Court may, on application by the company or registered non-Hong Kong company or by a person interested in the charge, order that
  (a) the registration period specified in section 335(5), 336(6), 338(3), 339(4), 340(5), 341(4) or 342(6) be extended;
  (b) the time required for registration by section 80 or 82 of the predecessor Ordinance, or that section as extended by section 91 of that Ordinance, having a continuing effect under Schedule 11 be extended; or
  (c) the time required for registration by section 91(5) of the predecessor Ordinance having a continuing effect under Schedule 11 be extended.

(2) The Court may make an order under subsection (1) on any terms and conditions that the Court thinks just and expedient.

(3) The Court must not make an order unless the Court is satisfied that
  (a) the failure specified in subsection (5)
    (i) was accidental;
    (ii) was due to inadvertence or to some other sufficient cause; or
    (iii) is not of a nature to prejudice the position of creditors or members of the company or registered non- Hong Kong company; or
  (b) it is just and equitable to grant the relief on other grounds.

(4) If
  (a) the Court makes an order under subsection (1) in relation to a charge or debenture; and
  (b) the failure specified in subsection (5) is rectified within the extended period or time,
any liability already incurred for an offence under the offence provision specified in subsection (6) in relation to the registration of the charge or debenture is extinguished.

(5) The failure is
  (a) in the case of subsection (1)(a), a failure to deliver a statement as required under Division 2, 3 or 4, or any accompanying instrument, within that registration period;
  (b) in the case of subsection (1)(b), a failure to deliver
    (i) the particulars as required under section 80 or 82 of the predecessor Ordinance having a continuing effect under section 63(2), 64(2), 65(2) or 66(2) of Schedule 11 within that time; or
    (ii) a statement as required under section 80 or 82 of the predecessor Ordinance having a continuing effect under section 63(4)(a), 64(4)(a), 65(4) or 66(4) of Schedule 11, or any accompanying instrument, within that time; or
  (c) in the case of subsection (1)(c), a failure to deliver
    (i) the particulars as required under section 91(5) of the predecessor Ordinance having a continuing effect under section 67(2) of Schedule 11 within that time; or
    (ii) a statement as required under section 91(5) of the predecessor Ordinance having a continuing effect under section 67(4) of Schedule 11, or any accompanying instrument, within that time.

(6) The offence provision is
  (a) in the case of subsection (1)(a), section 337(2), 338(5), 339(6), 340(7), 341(7) or 343(1);
  (b) in the case of subsection (1)(b), section 81 or 82 of the predecessor Ordinance having a continuing effect under Schedule 11; or
  (c) in the case of subsection (1)(c), section 91(6) of the predecessor Ordinance having a continuing effect under Schedule 11.

Section:

347

Rectification of registered particulars

(1) The Court may, on application by the company or registered non-Hong Kong company or by a person interested in the charge, order that
  (a) an omission or misstatement of any particular in any of the following be rectified
    (i) a statement of the particulars of a charge, or any accompanying instrument, delivered for registration under
      (A) Division 2 or 3;
      (B) section 80 or 82 of the predecessor Ordinance, or that section by virtue of section 91 of that Ordinance, having a continuing effect under section 63(4)(a), 64(4)(a), 65(4) or 66(4) of Schedule 11; or
      (C) section 91(5) of the predecessor Ordinance having a continuing effect under section 67(4) of Schedule 11;
    (ii) a statement of the particulars of an issue of debentures, or a statement of the particulars of commission, allowance or discount, delivered for registration under
      (A) Division 4;
      (B) section 80 or 82 of the predecessor Ordinance, or that section by virtue of section 91 of that Ordinance, having a continuing effect under section 63(4)(a), 64(4)(a), 65(4) or 66(4) of Schedule 11; or
      (C) section 91(5) of the predecessor Ordinance having a continuing effect under section 67(4) of Schedule 11;
    (iii) a notification, or any accompanying instrument, under section 345; (iv) a memorandum under section 85 of the predecessor Ordinance; or
  (b) an omission or misstatement of any of the following be rectified
    (i) any particular with respect to a charge delivered for registration before the commencement date* of this section under section 80, 82 or 91(5) of the predecessor Ordinance;
    (ii) any particular with respect to a charge delivered for registration under section 80, 82 or 91(5) of the predecessor Ordinance having a continuing effect under section 63(2), 64(2), 65(2), 66(2) or 67(2) of Schedule 11.

(2) The Court may make an order under subsection (1) on any terms and conditions that the Court thinks just and expedient.

(3) The Court must not make an order unless the Court is satisfied that
  (a) the omission or misstatement
    (i) was accidental;
    (ii) was due to inadvertence or to some other sufficient cause; or
    (iii) is not of a nature to prejudice the position of creditors or members of the company or registered non- Hong Kong company; or
  (b) it is just and equitable to grant the relief on other grounds.

(4) The Court may make an order to rectify an omission or misstatement of any particular in any accompanying instrument mentioned in subsection (1)(a)(i) or (iii) to the extent as permitted by common law rules and equitable principles.

Division:6

Notice to Registrar of Enforcement of Security

Section:

348

Notice of appointment of receiver or manager

(1) If a person obtains an order for the appointment of a receiver or manager of the property of a company or the charged property of a registered non-Hong Kong company, or appoints such a receiver or manager under the powers contained in an instrument, the person must, within 7 days after the date of the order or of the appointment under those powers, deliver a statement of that fact to the Registrar for registration.

(2) A statement under subsection (1) must include
  (a) the name and address of the person appointed as receiver or manager; and
  (b) the number of that person's identity card, or if that person does not have an identity card, the number and issuing country of any passport held by that person.

(3) A statement under subsection (1)
  (a) must be in the specified form; and
  (b) must be accompanied by the prescribed fee.

(4) If a person contravenes subsection (1), the person commits an offence and is liable to a fine at level 3 and, in the case of a continuing offence, to a further fine of $300 for each day during which the offence continues.

Section:

349

Notice of mortgagee entering into possession of property

(1) If a person enters into possession of the property of a company, or the charged property of a registered non- Hong Kong company, as mortgagee, the person must, within 7 days after the date of entering into possession, deliver a statement of that fact to the Registrar for registration.

(2) A statement under subsection (1) must include
  (a) if the person is a natural person
    (i) the person's name and address; and
    (ii) the number of the person's identity card, or if the person does not have an identity card, the number and issuing country of any passport held by the person; or
  (b) if the person is a body corporate, its name and the address of its registered or principal office.

(3) A statement under subsection (1)
(a) must be in the specified form; and
  (b) must be accompanied by the prescribed fee.

(4) If a person contravenes subsection (1), the person commits an offence and is liable to a fine at level 3 and, in the case of a continuing offence, to a further fine of $300 for each day during which the offence continues.

Section:

350

Notice of cessation of appointment of receiver or manager or mortgagee going out of possession of property, etc.

(1) This section applies to
  (a) a person
    (i) whose particulars are required to be included in a statement delivered to the Registrar under section 348(1); or
    (ii) whose particulars were, before the commencement date* of section 348, required to be included in a notice delivered to the Registrar under section 87(1) of the predecessor Ordinance; and
  (b) a person
    (i) whose particulars are required to be included in a statement delivered to the Registrar under section 349(1); or
    (ii) whose particulars were, before the commencement date* of section 349, required to be included in a notice delivered to the Registrar under section 87(2) of the predecessor Ordinance.

(2) If the person mentioned in subsection (1)(a) ceases to act as receiver or manager, the person must, within 7 days after the date of the cessation, deliver a statement of the cessation to the Registrar for registration.

(3) If the person mentioned in subsection (1)(b) goes out of possession of the property or charged property, the person must, within 7 days after going out of possession, deliver a statement of that fact to the Registrar for registration.

(4) If there is any change to the particulars of the person included in the statement or notice, the person must, within 15 days after the date of the change, deliver a statement of that change to the Registrar for registration.

(5) Subsection (4) does not apply if
  (a) in the case of a person mentioned in subsection (1)(a)
    (i) the person has ceased to act as receiver or manager; and
    (ii) the person has delivered a statement of the cessation to the Registrar under subsection (2) or has, before the commencement date* of section 348, given notice of the cessation under section 87(4) of the predecessor Ordinance; or
  (b) in the case of a person mentioned in subsection (1)(b)
    (i) the person has gone out of possession of the property or charged property; and
    (ii) the person has delivered a statement of that fact to the Registrar under subsection (3) or has, before the commencement date* of section 349, given notice of that fact under section 87(4) of the predecessor Ordinance.

(6) A statement under subsection (2), (3) or (4) must be in the specified form.

(7) If a person contravenes subsection (2), (3) or (4), the person commits an offence and is liable to a fine at level 3 and, in the case of a continuing offence, to a further fine of $300 for each day during which the offence continues.

Division:7

Company’s and Registered Non-Hong Kong Company’s Records and Register of Charges

Section:

351

Obligation to keep copies of instruments creating charges

(1) A company must keep at its registered office, or at a place prescribed by regulations made under section 657
  (a) a copy of every instrument creating a charge required to be registered by the company under this Part; and
  (b) a copy of every instrument creating a charge required to be registered by the company under Part III of the predecessor Ordinance.

(2) A registered non-Hong Kong company must keep at its principal place of business in Hong Kong, or at a place prescribed by regulations made under section 356
  (a) a copy of every instrument creating a charge required to be registered by the company under this Part; and
  (b) a copy of every instrument creating a charge required to be registered by the company under Part III of the predecessor Ordinance.

(3) Where
  (a) a series of debentures is issued by a company or registered non-Hong Kong company;
  (b) the debentures contain a charge required to be registered by the company or registered non-Hong Kong company under this Part or under Part III of the predecessor Ordinance; and
  (c) the terms of the debentures are the same,
the company or registered non-Hong Kong company is to be regarded as having complied with subsection (1) or

(2) in relation to the debentures if it keeps a copy of one of the debentures in accordance with that subsection.

(4) A company or registered non-Hong Kong company
  (a) must, within 15 days after a copy of an instrument mentioned in subsection (1) or (2) is first kept at a place, notify the Registrar of the place; and
  (b) must, within 15 days after there is a change in the place where a copy of such an instrument is kept, notify the Registrar of the change.

(5) A notification under subsection (4)(a) or (b) must be in the specified form.

(6) Subsection (4)(a) does not require a company or registered non-Hong Kong company to notify the Registrar of the place at which a copy of an instrument is kept
  (a) if, in the case of a copy that came into existence on or after the commencement date* of this section, it has at all times been kept at the company's registered office, or the registered non-Hong Kong company's principal place of business in Hong Kong; or
  (b) if
    (i) immediately before that commencement date*, the company or registered non-Hong Kong company kept a copy of the instrument for the purposes of section 88 of the predecessor Ordinance; and
    (ii) on and after that commencement date*, that copy is kept for the purposes of subsection (1) or (2) at the place at which it was kept immediately before that commencement date*.

(7) If subsection (1), (2) or (4) is contravened, the company or registered non-Hong Kong company, and every responsible person of the company or registered non-Hong Kong company, commit an offence, and each is liable to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

Section:

352

Obligation of company to keep register of charges

(1) A company must keep a register of charges
  (a) at the company's registered office; or
  (b) at a place prescribed by regulations made under section 657.

(2) A company
  (a) must enter in its register of charges
    (i) every charge specifically affecting property of the company; and
    (ii) every floating charge on the whole or part of the company's property or undertaking; and
  (b) must enter in its register of charges the following particulars in respect of every charge specified in paragraph (a)(i) and (ii)
    (i) the amount secured by the charge;
    (ii) a description of the property charged;
    (iii) except in the case of securities to bearer, the names of the persons entitled to the charge.

(3) If a company contravenes subsection (1) or (2), the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

(4) If an officer of the company knowingly and wilfully authorizes or permits the omission of an entry required to be made under subsection (2), the officer commits an offence and is liable to a fine at level 5.

Section:

353

Obligation of registered non-Hong Kong company to keep register of charges

(1) A registered non-Hong Kong company must keep a register of charges
  (a) at the company's principal place of business in Hong Kong; or
  (b) at a place prescribed by regulations made under section 356.

(2) A registered non-Hong Kong company
  (a) must enter in its register of charges
    (i) every charge created by the company on property in Hong Kong of the company; and
    (ii) every charge on property in Hong Kong that is acquired by the company; and
  (b) must enter in its register of charges the following particulars in respect of every charge specified in paragraph (a)(i) and (ii)
    (i) the amount secured by the charge;
    (ii) a description of the property charged;
    (iii) except in the case of securities to bearer, the names of the persons entitled to the charge.

(3) Subsection (2) does not apply to a charge on property if the property was not in Hong Kong when the charge was created by, or the property was acquired by, the registered non-Hong Kong company.

(4) If a registered non-Hong Kong company contravenes subsection (1) or (2), the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

(5) If an officer of the registered non-Hong Kong company knowingly and wilfully authorizes or permits the omission of an entry required to be made under subsection (2), the officer commits an offence and is liable to a fine at level 5.

Section:

354

Notification of place where register of charges is kept

(1) A company or registered non-Hong Kong company must notify the Registrar of the place at which the register of charges is kept. The notice must be in the specified form and delivered to the Registrar for registration within 15 days after the register is first kept at that place.

(2) A company or registered non-Hong Kong company must notify the Registrar of any change (other than a change of the address of the company's registered office or registered non-Hong Kong company's principal place of business in Hong Kong) in the place at which the register of charges is kept. The notice must be in the specified form and delivered to the Registrar for registration within 15 days after the change.

(3) Subsection (1) does not require a company or registered non-Hong Kong company to notify the Registrar of the place at which the register of charges is kept
  (a) if, in the case of a register that came into existence on or after the commencement date* of this section, it has at all times been kept at
    (i) the company's registered office; or
    (ii) the registered non-Hong Kong company's principal place of business in Hong Kong; or
  (b) if
    (i) immediately before that commencement date*, the company or registered non-Hong Kong company kept a register for the purposes of section 89 of the predecessor Ordinance; and
    (ii) on and after that commencement date*, that register is kept as a register of charges for the purposes of section 352(1) or 353(1) at the place at which it was kept immediately before that commencement date*.

(4) If subsection (1) or (2) is contravened, the company or registered non-Hong Kong company, and every responsible person of the company or registered non-Hong Kong company, commit an offence, and each is liable to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

Section:

355

Right to inspect

(1) A member or creditor of a company is entitled, on request made in the prescribed manner and without charge, to inspect, in accordance with regulations made under section 657
  (a) the copies kept by the company under section 351(1); and
  (b) the register of charges kept by the company under section 352(1).

(2) A member or creditor of a registered non-Hong Kong company is entitled, on request made in the prescribed manner and without charge, to inspect, in accordance with regulations made under section 356
  (a) the copies kept by the company under section 351(2); and
  (b) the register of charges kept by the company under section 353(1).

(3) Any other person is entitled, on request made in the prescribed manner and on payment of a prescribed fee, to inspect, in accordance with regulations made under section 356 or 657
  (a) the copies kept by a company or registered non-Hong Kong company under section 351(1)(a) or (2)(a); and
  (b) the register of charges kept by a company or registered non-Hong Kong company under section 352(1) or 353(1).

(4) In this section
prescribed(訂明) means prescribed by regulations made under section 356 or 657.

Section:

356

Financial Secretary may make regulations for purposes of this Division

(1) The Financial Secretary may make regulations
  (a) prescribing a place at which
    (i) copies of instruments creating charges are to be kept by a registered non-Hong Kong company under section 351; or
    (ii) a register of charges is to be kept by a registered non-Hong Kong company under section 353;
  (b) providing for the obligations of a registered non-Hong Kong company to make the copies and the register available for inspection under section 355;
  (c) prescribing the fees for the purposes of section 355(3); and
  (d) prescribing any other thing that is required or permitted to be prescribed under this Division in respect of those copies and that register.

(2) Regulations made under subsection (1)(a) may
  (a) prescribe a place other than the registered non-Hong Kong company's principal place of business in Hong Kong;
  (b) prescribe a place
    (i) by reference to the place at which the registered non-Hong Kong company keeps any other records; or
    (ii) in any other way;
  (c) provide that section 351 or 353 is not complied with by keeping the copies, or the register of charges, at a place prescribed in the regulations unless conditions prescribed in the regulations are met; and
  (d) prescribe more than one place for the purpose specified in subsection (1)(a)(i) or (ii).

(3) Regulations made under subsection (1)(b) may
  (a) make provision as to the time, duration and manner of inspection;
  (b) precribe the manner in which a request for inspection is to be made; and
  (c) define what may be required of the registered non-Hong Kong company as regards the nature, extent and manner of extracting or presenting any information for the purposes of inspection.

(4) Regulations made under subsection (1) may provide that
  (a) if a registered non-Hong Kong company contravenes any of the regulations, an offence is committed by
    (i) the company; and
    (ii) every responsible person of the company;
  (b) a person who commits an offence mentioned in paragraph (a) is liable to a fine not exceeding level 5 and, in the case of a continuing offence, to a further fine not exceeding $1,000 for each day during which the offence continues;
  (c) the Court may, in prescribed circumstances
    (i) by order compel an immediate inspection of the copies and the register of charges; and
    (ii) make any order as to the time, duration and manner of inspection; and
  (d) if the copies, or the register of charges, are kept at the office of a person other than the registered non-Hong Kong company concerned, an order mentioned in paragraph (c) may be made against that other person and that other person's officers and other employees.

(5) Nothing in any provision of this Ordinance or in the regulations made under this section is to be construed as preventing a registered non-Hong Kong company
  (a) from providing more extensive facilities than are required by the regulations; or
  (b) if a fee may be charged, from charging a lesser fee than that prescribed or none at all.

Part:9

Accounts and Audit

Division:1

Preliminary

Section:

357

Interpretation

(1) In this Part
annual consolidated financial statements (周年綜合財務報表) means the consolidated statements required to be prepared under section 379(2);
annual financial statements (周年財務報表) means the statements required to be prepared under section 379(1);
auditor's report (核數師報告) means the report required to be prepared under section 405;
directors' report (董事報告) means
  (a) the report required to be prepared under section 388(1); or
  (b) the consolidated report required to be prepared under section 388(2);
financial statements (財務報表) means annual financial statements or annual consolidated financial statements;
Regulation (《規例》) means the regulations made under sections 451 and 452;
summary financial report (財務摘要報告) means a financial report prepared under section 439.

(2) In this Part, a reference to the reporting documents for a financial year is a reference to all of the following
  (a) the financial statements for the financial year;
  (b) the directors' report for the financial year;
  (c) the auditor's report on those financial statements.

(3) For the purposes of this Part, a body corporate is a wholly owned subsidiary of another body corporate if it has only the following as members
  (a) that other body corporate;
  (b) a wholly owned subsidiary of that other body corporate;
  (c) a nominee of that other body corporate or such a wholly owned subsidiary.

Section:

358

Application in relation to financial year beginning on or after commencement date of relevant provision etc.

(1) Each of the following sections applies in relation to a financial year beginning on or after the commencement date* of that section
  (a) section 359;
  (b) section 379;
  (c) section 388;
  (d) section 389;
  (e) section 429;
  (f) section 430;
  (g) section 439.

(2) Each of the following sections applies in relation to accounting records for a financial year beginning on or after the commencement date* of that section
  (a) section 373;
  (b) section 374;
  (c) section 376;
  (d) section 377.

(3) Each of the following sections applies in relation to financial statements for a financial year beginning on or after the commencement date* of that section
  (a) section 380;
  (b) section 381;
  (c) section 382;
  (d) section 383;
  (e) section 436;
  (f) section 449.

(4) Section 387 applies in relation to a statement of financial position for a financial year beginning on or after the commencement date* of that section.

(5) Each of the following sections applies in relation to a directors' report for a financial year beginning on or after
the commencement date* of that section
  (a) section 390;
  (b) section 391.

(6) Each of the following sections applies in relation to an appointment of an auditor for a financial year beginning on or after the commencement date* of that section
  (a) section 394;
  (b) section 395;
  (c) section 396;
  (d) section 398;
  (e) section 399.

(7) Each of the following sections applies in relation to a person appointed as auditor for a financial year beginning on or after the commencement date* of that section
  (a) section 402;
  (b) section 403;
  (c) section 404.

(8) Section 411 applies in relation to a general meeting of which notice is given on or after the commencement date* of that section.

(9) Each of the following sections applies in relation to a person who is appointed, or is deemed to be reappointed, as auditor for a financial year beginning on or after the commencement date* of that section
  (a) section 412;
  (b) section 416;
  (c) section 417;
  (d) section 418;
  (e) section 419.

(10) Section 415 applies to a provision made on or after the commencement date* of that section.

(11) Section 435 applies in relation to
  (a) any financial statements and directors' report for a financial year beginning on or after the commencement date* of that section; and
  (b) any auditor's report on those financial statements.

(12) Section 440 applies in relation to a summary financial report for a financial year beginning on or after the commencement date* of that section.

(13) Schedule 4 applies in relation to financial statements for a financial year beginning on or after the commencement date* of that Schedule.

Division:2

Section:

359

Company falling within reporting exemption

(1) For the purposes of this Part, a company falls within the reporting exemption for a financial year
  (a) if
    (i) it is qualified as a small private company or small guarantee company for the financial year; and
    (ii) it is not a company specified in subsection (4) at any time during the financial year;
  (b) if
    (i) it is a private company at all times, and is not a company specified in subsection (4) at any time, during the financial year;
    (ii) it does not have any subsidiary and is not a subsidiary of another company; and
    (iii) all members of the company agree in writing that the company is to fall within the reporting exemption for the financial year only; or
  (c) if
    (i) it is a private company at all times, and is not a company specified in subsection (4) at any time, during the financial year;
    (ii) it is qualified as an eligible private company for the financial year; and
    (iii) the conditions specified in section 360(1) are satisfied.

(2) For the purposes of this Part, a company also falls within the reporting exemption for a financial year if
  (a) it is a private company at all times, and is not a company specified in subsection (4) at any time, during the financial year;
  (b) it is the holding company of a group of companies, of which no member is a company specified in subsection (4) at any time during the financial year; and
  (c) the group of companies
    (i) is qualified as a group of small private companies for the financial year; or
    (ii) is qualified as a group of eligible private companies for the financial year and the conditions specified in section 360(2) are satisfied.

(3) For the purposes of this Part, a company also falls within the reporting exemption for a financial year if
  (a) it is a company limited by guarantee at all times, and is not a company specified in subsection (4) at any time, during the financial year;
  (b) it is the holding company of a group of companies, of which no member is a company specified in subsection (4) at any time during the financial year; and
  (c) the group of companies is qualified as a group of small guarantee companies for the financial year.

(4) The company specified for the purposes of subsections (1), (2) and (3) is
  (a) one that carries on any banking business and holds a valid banking licence granted under the Banking Ordinance (Cap 155);
  (b) one that is a corporation licensed under Part V of the Securities and Futures Ordinance (Cap 571) to carry on a business in any regulated activity within the meaning of that Ordinance; or
  (c) one that
    (i) carries on any insurance business otherwise than solely as an agent; or
    (ii) accepts, by way of trade or business (other than banking business), loans of money at interest or repayable at a premium, otherwise than on terms involving the issue of debentures or other securities.

Section:

360

Conditions specified for section 359(1)(c)(iii) and (2)(c)(ii)

(1) The conditions specified for the purposes of section 359(1)(c)(iii) are
  (a) subject to subsection (3), a resolution is passed at a general meeting by the members holding at least 75% of the voting rights in the company to the effect that the company is to fall within the reporting exemption for the financial year; and
  (b) the members holding the remaining voting rights do not vote against the resolution.

(2) The conditions specified for the purposes of section 359(2)(c)(ii) are
  (a) if the group of companies is not qualified as a group of small private companies for the financial year by reason only that the condition specified in section 1(7) of Schedule 3 is not satisfied in the relevant financial year or financial years
    (i) subject to subsection (3), a resolution is passed at a general meeting by the members holding at least 75% of the voting rights in each company in the group that is not qualified as a small private company to the effect that the company is to fall within the reporting exemption for the financial year; and
    (ii) the members holding the remaining voting rights do not vote against the resolution;

Note

A group of companies is qualified as a group of small private companies if it falls within section 364(1), (2) or (3).

(b) if the group of companies is not qualified as a group of small private companies for the financial year by reason only that any 2 of the conditions specified in section 1(8) of Schedule 3 are not satisfied in the relevant financial year or financial years
    (i) subject to subsection (3), a resolution is passed at the general meeting by the members holding at least 75% of the voting rights in the holding company to the effect that the holding company is to fall within the reporting exemption for the financial year; and
    (ii) the members holding the remaining voting rights do not vote against the resolution; or
  (c) if the group of companies is not qualified as a group of small private companies for the financial year by reason that both the condition specified in section 1(7) of Schedule 3 and any 2 of the conditions specified in section 1(8) of that Schedule are not satisfied in the relevant financial year or financial years
    (i) subject to subsection (3), a resolution is passed at a general meeting by the members holding at least 75% of the voting rights in each company in the group that is not qualified as a small private company, and in the holding company, to the effect that the company is to fall within the reporting exemption for the financial year; and
    (ii) the members holding the remaining voting rights do not vote against the resolution.

(3) If
  (a) a resolution is passed for the purposes of subsection (1)(a) or (2)(a)(i), (b)(i) or (c)(i) to the effect that a company is to fall within the reporting exemption for a financial year;
  (b) by notice in writing to the company, a member objects to the company falling within the reporting exemption for the financial year; and
  (c) the notice is given at least 6 months before the end of the financial year to which the objection relates, the resolution is regarded as not being passed in relation to the financial year to which the objection relates.

(4) Within 14 days after receiving a notice under subsection (3)(b), a company must notify its members of the objection.

(5) Special notice is required for a resolution mentioned in subsection (1)(a) or (2)(a)(i), (b)(i) or (c)(i).

Note

See also section 578 which sets out the requirements regarding special notice.

Section:

361

Small private company

(1) For the purposes of this Part, if a company is a private company formed and registered under this Ordinance, and any 2 of the conditions specified in section 1(1) of Schedule 3 are satisfied in its first financial year, the company is qualified as a small private company for that first financial year, and every subsequent financial year, until it is disqualified under subsection (4).

(2) For the purposes of this Part, if a company is an existing private company, and any 2 of the conditions specified in section 1(1) of Schedule 3 are satisfied
  (a) in its first financial year after the coming into operation of this section; or
  (b) in the financial year of the company for the purposes of the predecessor Ordinance that immediately precedes that first financial year, the company is qualified as a small private company for that first financial year, and every subsequent financial year, until it is disqualified under subsection (4).

(3) For the purposes of this Part, if
  (a) a company is a private company; and
  (b) after its first financial year after the coming into operation of this section, any 2 of the conditions specified in section 1(1) of Schedule 3 are satisfied for 2 consecutive financial years, the company is also qualified as a small private company for the financial year immediately following those 2 financial years, and every subsequent financial year, until it is disqualified under subsection (4).

(4) For the purposes of this Part, if, after a company is qualified as a small private company under subsection (1), (2) or (3), any 2 of the conditions specified in section 1(2) of Schedule 3 are not satisfied for 2 consecutive financial years, the company is disqualified as a small private company for the financial year immediately following those 2 financial years, and every subsequent financial year, until it is qualified again under subsection (3).

Section:

362

Eligible private company

(1) For the purposes of this Part, if a company is a private company formed and registered under this Ordinance, and any 2 of the conditions specified in section 1(3) of Schedule 3 are satisfied in its first financial year, the company is qualified as an eligible private company for that first financial year, and every subsequent financial year, until it is disqualified under subsection (4).

(2) For the purposes of this Part, if a company is an existing private company, and any 2 of the conditions specified in section 1(3) of Schedule 3 are satisfied
  (a) in its first financial year after the coming into operation of this section; or
  (b) in the financial year of the company for the purposes of the predecessor Ordinance that immediately precedes that first financial year, the company is qualified as an eligible private company for that first financial year, and every subsequent financial year, until it is disqualified under subsection (4).

(3) For the purposes of this Part, if
  (a) a company is a private company; and
  (b) after its first financial year after the coming into operation of this section, any 2 of the conditions specified in section 1(3) of Schedule 3 are satisfied for 2 consecutive financial years, the company is also qualified as an eligible private company for the financial year immediately following those 2 financial years, and every subsequent financial year, until it is disqualified under subsection (4).

(4) For the purposes of this Part, if, after a company is qualified as an eligible private company under subsection (1), (2) or (3), any 2 of the conditions specified in section 1(4) of Schedule 3 are not satisfied for 2 consecutive financial years, the company is disqualified as an eligible private company for the financial year immediately following those 2 financial years, and every subsequent financial year, until it is qualified again under subsection (3).

Section:

363

Small guarantee company

(1) For the purposes of this Part, if a company is a company limited by guarantee formed and registered under this Ordinance, and the condition specified in section 1(5) of Schedule 3 is satisfied in its first financial year, the company is qualified as a small guarantee company for that first financial year, and every subsequent financial year, until it is disqualified under subsection (4).

(2) For the purposes of this Part, if a company is an existing company limited by guarantee, and the condition specified in section 1(5) of Schedule 3 is satisfied
  (a) in its first financial year after the coming into operation of this section; or
  (b) in the financial year of the company for the purposes of the predecessor Ordinance that immediately precedes that first financial year, the company is qualified as a small guarantee company for that first financial year, and every subsequent financial year, until it is disqualified under subsection (4).

(3) For the purposes of this Part, if
  (a) a company is a company limited by guarantee; and
  (b) after its first financial year after the coming into operation of this section, the condition specified in section 1(5) of Schedule 3 is satisfied for 2 consecutive financial years, the company is also qualified as a small guarantee company for the financial year immediately following those 2 financial years, and every subsequent financial year, until it is disqualified under subsection (4).

(4) For the purposes of this Part, if, after a company is qualified as a small guarantee company under subsection (1), (2) or (3), the condition specified in section 1(6) of Schedule 3 is not satisfied for 2 consecutive financial years, the company is disqualified as a small guarantee company for the financial year immediately following those 2 financial years, and every subsequent financial year, until it is qualified again under subsection (3).

Section:

364

Group of small private companies

(1) For the purposes of this Part, if
  (a) the holding company of a group of companies is formed and registered under this Ordinance; and
  (b) the condition specified in section 1(7) of Schedule 3, and any 2 of the conditions specified in section 1(8) of that Schedule, are satisfied in the holding company's first financial year, the group is qualified as a group of small private companies for that first financial year, and every subsequent financial year, until it is disqualified under subsection (4) or (5).

(2) For the purposes of this Part, if
  (a) the holding company of a group of companies is an existing company; and
  (b) the condition specified in section 1(7) of Schedule 3, and any 2 of the conditions specified in section 1(8) of that Schedule, are satisfied
    (i) in the holding company's first financial year after the coming into operation of this section; or
(ii) in the holding company ' s financial year for the purposes of the predecessor Ordinance that immediately precedes that first financial year, the group is qualified as a group of small private companies for that first financial year, and every subsequent financial year, until it is disqualified under subsection (4) or (5).

(3) For the purposes of this Part, if, after the first financial year of the holding company of a group of companies after the coming into operation of this section, the condition specified in section 1(7) of Schedule 3, and any 2 of the conditions specified in section 1(8) of that Schedule, are satisfied for 2 consecutive financial years of the holding company, the group is also qualified as a group of small private companies for the financial year immediately following those 2 financial years, and every subsequent financial year, until it is disqualified under subsection (4) or (5).

(4) For the purposes of this Part, if, after a group of companies is qualified as a group of small private companies under subsection (1), (2) or (3), another company becomes a new member of the group in a financial year of the holding company such that either the condition specified in section 1(7) of Schedule 3 is not satisfied, or any 2 of the conditions specified in section 1(9) of that Schedule are not satisfied, for the financial year, the group is disqualified as a group of small private companies for the financial year, and every subsequent financial year, until it is qualified again under subsection (3).

(5) For the purposes of this Part, if, after a group of companies is qualified as a group of small private companies under subsection (1), (2) or (3), either the condition specified in section 1(7) of Schedule 3 is not satisfied, or any 2 of the conditions specified in section 1(9) of that Schedule are not satisfied, for 2 consecutive financial years of the holding company, the group is also disqualified as a group of small private companies for the financial year immediately following those 2 financial years, and every subsequent financial year, until it is qualified again under subsection (3).

Section:

365

Group of eligible private companies

(1) For the purposes of this Part, if
  (a) the holding company of a group of companies is formed and registered under this Ordinance; and
  (b) the condition specified in section 1(10) of Schedule 3, and any 2 of the conditions specified in section 1(11) of that Schedule, are satisfied in the holding company's first financial year, the group is qualified as a group of eligible private companies for that first financial year, and every subsequent financial year, until it is disqualified under subsection (4) or (5).

(2) For the purposes of this Part, if
  (a) the holding company of a group of companies is an existing company; and
  (b) the condition specified in section 1(10) of Schedule 3, and any 2 of the conditions specified in section 1(11) of that Schedule, are satisfied
    (i) in the holding company's first financial year after the coming into operation of this section; or
    (ii) in the holding company ' s financial year for the purposes of the predecessor Ordinance that immediately precedes that first financial year, the group is qualified as a group of eligible private companies for that first financial year, and every subsequent financial year, until it is disqualified under subsection (4) or (5).

(3) For the purposes of this Part, if, after the first financial year of the holding company of a group of companies after the coming into operation of this section, the condition specified in section 1(10) of Schedule 3, and any 2 of the conditions specified in section 1(11) of that Schedule, are satisfied for 2 consecutive financial years of the holding company, the group is also qualified as a group of eligible private companies for the financial year immediately following those 2 financial years, and every subsequent financial year, until it is disqualified under subsection (4) or (5).

(4) For the purposes of this Part, if, after a group of companies is qualified as a group of eligible private companies under subsection (1), (2) or (3), another company becomes a new member of the group in a financial year of the holding company such that either the condition specified in section 1(10) of Schedule 3 is not satisfied, or any 2 of the conditions specified in section 1(12) of that Schedule are not satisfied, for the financial year, the group is disqualified as a group of eligible private companies for the financial year, and every subsequent financial year, until it is qualified again under subsection (3).

(5) For the purposes of this Part, if, after a group of companies is qualified as a group of eligible private companies under subsection (1), (2) or (3), either the condition specified in section 1(10) of Schedule 3 is not satisfied, or any 2 of the conditions specified in section 1(12) of that Schedule are not satisfied, for 2 consecutive financial years of the holding company, the group is also disqualified as a group of eligible private companies for the financial year immediately following those 2 financial years, and every subsequent financial year, until it is qualified again under subsection (3).

Section:

366

Group of small guarantee companies

(1) For the purposes of this Part, if
  (a) the holding company of a group of companies is formed and registered under this Ordinance; and
  (b) the conditions specified in section 1(13) of Schedule 3 are satisfied in the holding company 's first financial year,
the group is qualified as a group of small guarantee companies for that first financial year, and every subsequent financial year, until it is disqualified under subsection (4) or (5).

(2) For the purposes of this Part, if
  (a) the holding company of a group of companies is an existing company; and
  (b) the conditions specified in section 1(13) of Schedule 3 are satisfied
    (i) in the holding company's first financial year after the coming into operation of this section; or
(ii) in the holding company ' s financial year for the purposes of the predecessor Ordinance that immediately precedes that first financial year, the group is qualified as a group of small guarantee companies for that first financial year, and every subsequent financial year, until it is disqualified under subsection (4) or (5).

(3) For the purposes of this Part, if, after the first financial year of the holding company of a group of companies after the coming into operation of this section, the conditions specified in section 1(13) of Schedule 3 are satisfied for 2 consecutive financial years of the holding company, the group is also qualified as a group of small guarantee companies for the financial year immediately following those 2 financial years, and every subsequent financial year, until it is disqualified under subsection (4) or (5).

(4) For the purposes of this Part, if, after a group of companies is qualified as a group of small guarantee companies under subsection (1), (2) or (3), another company becomes a new member of the group in a financial year of the holding company such that the conditions specified in section 1(14) of Schedule 3 are not satisfied for the financial year, the group is disqualified as a group of small guarantee companies for the financial year, and every subsequent financial year, until it is qualified again under subsection (3).
(5) For the purposes of this Part, if, after a group of companies is qualified as a group of small guarantee companies under subsection (1), (2) or (3), the conditions specified in section 1(14) of Schedule 3 are not satisfied for 2 consecutive financial years of the holding company, the group is also disqualified as a group of small guarantee companies for the financial year immediately following those 2 financial years, and every subsequent financial year, until it is qualified again under subsection (3).

Division:3

Section:

367

Financial year

(1) A company's first financial year after the coming into operation of this section begins on the first day of its first accounting reference period and ends on the last day of that period.

(2) Every subsequent financial year of a company begins on the date immediately following the end of the previous
financial year and ends on the last day of the accounting reference period immediately following the one by reference to which the previous financial year is determined.

(3) If an undertaking is not a company, a reference in this Ordinance to its financial year is a reference to a period in respect of which a profit and loss account of the undertaking is required, by its constitution or by the law under which it is established, to be made up, whether or not the period is a year.

(4) A company's directors must secure that the financial year of each of its subsidiary undertakings coincides with the company's financial year unless, in the directors' opinion, there are good reasons against those financial years coinciding with each other.

(5) In this section
undertaking(企業) means
  (a) a body corporate;
  (b) a partnership; or
  (c) an unincorporated association carrying on a trade or business, whether for profit or not.

Section:

368

Accounting reference period

(1) For an existing company formed and registered before the commencement date* of Division 1 of Part 3, the first accounting reference period begins on the date immediately following its primary accounting reference date and ends on the first anniversary of its primary accounting reference date.

(2) For
  (a) a company formed and registered under this Ordinance; and
(b) a company formed and registered under a provision of the predecessor Ordinance having a continuing effect under Schedule 11 or by virtue of section 23 of the Interpretation and General Clauses Ordinance (Cap 1), the first accounting reference period begins on the date of its incorporation and ends on its primary accounting reference date.
(3) Every subsequent accounting reference period of a company is the period of 12 months beginning immediately after the end of the previous accounting reference period and ending on its accounting reference date, unless the accounting reference period is shortened or extended, as stated in a directors' resolution under section 371(3).

Section:

369

Primary accounting reference date

(1) For an existing company formed and registered before the commencement date* of Division 1 of Part 3, the primary accounting reference date is
  (a) the date up to which the company's accounts are made if, on or after the commencement date* of this section, the company's accounts
    (i) have been laid before the company in general meeting under section 122 of the predecessor Ordinance having a continuing effect under Schedule 11; or
    (ii) have been provided to the members under section 111(6) of the predecessor Ordinance having a continuing effect under Schedule 11; or
  (b) if, on or after the commencement date* of this section, such company's accounts have not been laid or
provided as mentioned in paragraph (a)(i) or (ii)
(i) in the case where such accounts have been prepared on or before the date by which the company is required by section 111(1) of the predecessor Ordinance having a continuing effect under Schedule 11 to hold a general meeting, the date up to which those accounts are made;
    (ii) in the case where subparagraph (i) does not apply, but accounts made up to a date falling more than one day before the commencement date* of this section have been prepared on or before the date by which the company is required by that section 111(1) to hold a general meeting, the first anniversary of the date up to which those accounts are made; or
    (iii) in any other case, the date by which the company is required by that section 111(1) to hold a general meeting.

(2) Subsection (1)(a) and (b)(i) does not apply if those accounts are made up to a date falling more than one day before the commencement date* of this section.

(3) Subsection (1)(a)(i) does not apply unless the general meeting is held
  (a) in the case of the company's first general meeting, within 18 months of the company's incorporation; or
  (b) in any other case, within 15 months, and in the year, after the company's last annual general meeting.

(4) Subsection (1)(b)(ii) does not apply if those accounts are made up to a date falling more than one day before the beginning of the period of 12 months before the commencement date* of this section.

(5) For a company formed and registered under this Ordinance or under a provision of the predecessor Ordinance having a continuing effect under Schedule 11 or by virtue of section 23 of the Interpretation and General Clauses Ordinance (Cap 1), the primary accounting reference date is
  (a) a date specified by the directors before the relevant date for the purposes of this paragraph; or
  (b) in the absence of such a specified date, the relevant date.

(6) A date specified for the purposes of subsection (5)(a) must fall within 18 months after the date of the company's incorporation.

(7) In this section
relevant anniversary( 有 關周年日 ), in relation to a company ' s incorporation, means the anniversary of the company's incorporation that first occurs after this section comes into operation;
relevant date(有關日期) means the last day of the month in which the relevant anniversary of the company's
incorporation falls.

Section:

370

Accounting reference date

Subject to section 371, a company's accounting reference date is the anniversary of its primary accounting reference date.

Section:

371

Alteration of accounting reference date

(1) The directors of a company may specify a new accounting reference date in relation to
  (a) the company's current accounting reference period and every subsequent accounting reference period; or
  (b) the company's previous accounting reference period and every subsequent accounting reference period.
(2) If the directors of a public company or a company limited by guarantee specify a new accounting reference date under subsection (1), the company must, within 15 days after the date of the directors' resolution specifying the new accounting reference date, deliver a notice, in the specified form, of that new date to the Registrar for registration.

(3) A directors' resolution by which a new accounting reference date is specified, and a notice of that new date
delivered to the Registrar, must state
  (a) whether the current or previous accounting reference period concerned is to be shortened, so as to end on the first occasion on which the new accounting reference date falls or fell after the beginning of that period; or
  (b) whether the current or previous accounting reference period concerned is to be extended, so as to end on the second occasion on which the new accounting reference date falls or fell after the beginning of that period.

(4) The directors of a company must not specify a new accounting reference date in relation to the previous accounting reference period if
  (a) the period for laying before the company in general meeting under section 429 a copy of the reporting documents for the financial year determined by reference to that accounting reference period has expired; or
  (b) the period for sending a copy of the reporting documents for the financial year to the members under section 430(3) has expired.

(5) The directors of a company must not specify a new accounting reference date in relation to an accounting reference period so as to extend the period to longer than 18 months.

(6) The directors of a company must not specify a new accounting reference date in relation to the current or previous accounting reference period so as to extend that period if
  (a) those directors have specified a new accounting reference date in relation to an earlier accounting reference period so as to extend that earlier period; and
  (b) the earlier accounting reference period ended within 5 years before the new accounting reference date is specified.

(7) Subsection (6) does not apply if
  (a) the new accounting reference date to be specified by the directors coincides with the accounting reference date of a holding company of the company; or
  (b) the specification is approved by a members' resolution.

(8) If a company contravenes subsection (2), the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 3 and, in the case of a continuing offence, to a further fine of $300 for each day during which the offence continues.

(9) In this section
previous accounting reference period(對上的會計參照期), in relation to a company, means the accounting reference period of the company immediately preceding the company's current accounting reference period.

Division:4

Preparation of Financial Statements and Directors’ Reports

Subdivision:1

Preliminary

Section:

372

Interpretation

In this Division
in electronic form (電子形式) means in the form of an electronic record;
in hard copy form (印本形式) means in a paper form or similar form capable of being read.

Subdivision:2

Accounting Records

Section:

373

Company must keep accounting records

(1) A company must keep accounting records that comply with subsections (2) and (3). (2) The accounting records must be sufficient
  (a) to show and explain the company's transactions;
  (b) to disclose with reasonable accuracy, at any time, the company ' s financial position and financial performance; and
  (c) to enable the directors to ensure that the financial statements comply with this Ordinance.

(3) In particular, the accounting records must contain
  (a) daily entries of all sums of money received and expended by the company, and the matters in respect of which the receipt and expenditure takes place; and
  (b) a record of the company's assets and liabilities.
(4) If subsection (1) does not apply in relation to a subsidiary undertaking of a company, the company must take all reasonable steps to secure that the subsidiary undertaking keeps accounting records that are sufficient to enable the company's directors to ensure that any financial statements required to be prepared under Subdivision 3 of Division 4 comply with this Ordinance.

(5) A director of a company who fails to take all reasonable steps to secure compliance with subsection (1) or (4) commits an offence and is liable to a fine of $300,000.
(6) A director of a company who wilfully fails to take all reasonable steps to secure compliance with subsection (1) or (4) commits an offence and is liable to a fine of $300,000 and to imprisonment for 12 months.

(7) If a person is charged with an offence under subsection (5), it is a defence to establish that the person had reasonable grounds to believe, and did believe, that a competent and reliable person
  (a) was charged with the duty of ensuring that subsection (1) or (4) (as the case may be) was complied with; and
  (b) was in a position to discharge that duty.

Section:

374

Where accounting records to be kept

(1) A company's accounting records
  (a) must be kept at its registered office or any other place that the directors think fit; and
  (b) must be open to inspection by the directors at all times without charge.

(2) If a company's accounting records are kept at a place outside Hong Kong, the accounts and returns with respect to the business dealt with in those records
  (a) must be sent to, and kept at, a place in Hong Kong; and
  (b) must be open to inspection by the directors at all times without charge.

(3) Those accounts and returns
  (a) must disclose with reasonable accuracy the financial position of the business in question at intervals of not more than 6 months; and
  (b) must be sufficient to enable the directors to ensure that any financial statements required to be prepared under Subdivision 3 of Division 4 comply with this Ordinance.

(4) A director of a company who fails to take all reasonable steps to secure compliance with subsection (1), (2) or (3) commits an offence and is liable to a fine of $300,000.

(5) A director of a company who wilfully fails to take all reasonable steps to secure compliance with subsection (1), (2) or (3) commits an offence and is liable to a fine of $300000 and to imprisonment for 12 months.

(6) If a person is charged with an offence under subsection (4), it is a defence to establish that the person had reasonable grounds to believe, and did believe, that a competent and reliable person
  (a) was charged with the duty of ensuring that subsection (1), (2) or (3) (as the case may be) was complied with; and
  (b) was in a position to discharge that duty.

Section:

375

Director may obtain copies of accounting records during inspection

(1) A company must allow a director of the company to make a copy of its accounting records in the course of inspection.

(2) A company must provide a director of the company with a copy of its accounting records without charge if so requested by the director.

(3) For the purposes of subsection (2)
  (a) if the director requests a copy of the company's accounting records in hard copy form, the company must provide the copy in hard copy form; and
  (b) if the director requests a copy of the company's accounting records in electronic form, the company must provide the copy in any electronic form that the company thinks fit.

(4) Subsections (2) and (3) do not require a company to provide a director of the company with a copy of its accounting records in electronic form if it keeps its accounting records by recording the information in hard copy form only.

(5) If any accounting records are kept by a company by recording the information in electronic form, a requirement under this Subdivision for the accounting records to be open to inspection is to be regarded as a requirement
  (a) for a reproduction of the recording in hard copy form to be open to inspection; and
  (b) for the recording to be open to inspection by electronic means at the request of a person entitled to inspect the accounting records.

(6) A director of a company who fails to take all reasonable steps to secure compliance with subsection (1) or (2) commits an offence and is liable to a fine at level 5 and, in the case of a continuing offence, to a further fine of $1000 for each day during which the offence continues.

(7) If a person is charged with an offence under subsection (6), it is a defence to establish that the person had reasonable grounds to believe, and did believe, that a competent and reliable person
  (a) was charged with the duty of ensuring that subsection (1) or (2) (as the case may be) was complied with; and
  (b) was in a position to discharge that duty.

Section:

376

Form of accounting records

(1) The information contained in a company's accounting records must be adequately recorded such that they are available for future reference.

(2) Subject to subsection (1), a company's accounting records may be
  (a) kept in hard copy form or electronic form; and
  (b) arranged in the manner that the directors think fit.

(3) If a company's accounting records are kept in electronic form, the company must ensure that those records are capable of being reproduced in hard copy form.

(4) If any accounting records are kept by a company otherwise than by making entries in a bound book, the company
  (a) must take adequate precautions to guard against falsification; and
  (b) must take adequate steps to facilitate the discovery of a falsification.

(5) If subsection (1) is contravened, the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 3 and, in the case of a continuing offence, to a further fine of $300 for each day during which the offence continues.

(6) If subsection (3) or (4) is contravened, the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 3.

Section:

377

How long accounting records to be preserved

(1) This section applies to any accounting records, or any accounts and returns, that are required by section 373(1) or 374(2) to be kept.

(2) The company must preserve the records, or the accounts and returns, for 7 years after the end of the financial year to which the last entry made or matter recorded in the records, or the accounts and returns, relates.

(3) A director of a company who fails to take all reasonable steps to secure compliance with subsection (2) commits an offence and is liable to a fine of $300000.

(4) A director of a company who wilfully fails to take all reasonable steps to secure compliance with subsection (2) commits an offence and is liable to a fine of $300000 and to imprisonment for 12 months.

(5) If a person is charged with an offence under subsection (3), it is a defence to establish that the person had reasonable grounds to believe, and did believe, that a competent and reliable person
  (a) was charged with the duty of ensuring that subsection (2) was complied with; and
  (b) was in a position to discharge that duty.

Section:

378

Court may order accounting records to be inspected on director’s behalf

(1) On application by a director of a company, the Court may by order authorize a person to inspect the company's accounting records on the director's behalf.

(2) Unless the Court otherwise directs, a person so authorized may make copies of the accounting records.

(3) The Court may make any or all of the following orders
  (a) an order limiting the use that a person so authorized may make of the information obtained during the inspection;
  (b) an order limiting the right of a person so authorized to make copies in accordance with subsection (2);
  (c) any other order that it thinks fit.

Subdivision:3

Financial Statements

Section:

379

Directors must prepare financial statements

(1) A company's directors must prepare for each financial year statements that comply with sections 380 and 383.

(2) Despite subsection (1), if the company is a holding company at the end of the financial year, the directors must instead prepare for the financial year consolidated statements that comply with sections 380, 381 and 383.

(3) Subsection (2) does not apply
  (a) if the company is a wholly owned subsidiary of another body corporate in the financial year; or
  (b) if
    (i) the company is a partially owned subsidiary of another body corporate in the financial year;
    (ii) at least 6 months before the end of the financial year, the directors notify the members in writing of the directors' intention not to prepare consolidated statements for the financial year, and the notification does not relate to any other financial year; and
    (iii) as at a date falling 3 months before the end of the financial year, no member has responded to the notification by giving the directors a written request for the preparation of consolidated statements for the financial year.

(4) If, as respects any financial statements a copy of which is laid before a company in general meeting under section 429, or sent to a member under section 430 or otherwise circulated, published or issued by the company, a director of the company fails to take all reasonable steps to secure compliance with subsection (1) or (2), the director commits an offence and is liable to a fine of $300000.

(5) If, as respects any financial statements a copy of which is laid before a company in general meeting under section 429, or sent to a member under section 430 or otherwise circulated, published or issued by the company, a director of the company wilfully fails to take all reasonable steps to secure compliance with subsection (1) or (2), the director commits an offence and is liable to a fine of $300000 and to imprisonment for 12 months.

(6) If a person is charged with an offence under subsection (4), it is a defence to establish that the person had reasonable grounds to believe, and did believe, that a competent and reliable person
  (a) was charged with the duty of ensuring that subsection (1) or (2) (as the case may be) was complied with; and
  (b) was in a position to discharge that duty.

Section:

380

General requirements for financial statements

(1) The annual financial statements for a financial year
  (a) must give a true and fair view of the financial position of the company as at the end of the financial year; and
  (b) must give a true and fair view of the financial performance of the company for the financial year.

(2) The annual consolidated financial statements for a financial year
  (a) must give a true and fair view of the financial position of the company, and all the subsidiary undertakings, as a whole as at the end of the financial year; and
  (b) must give a true and fair view of the financial performance of the company, and all the subsidiary undertakings, as a whole for the financial year.

(3) The financial statements for a financial year must comply with
  (a) if the company falls within the reporting exemption for the financial year, Part 1 of Schedule 4; or
  (b) if the company does not fall within the reporting exemption for the financial year, Parts 1 and 2 of Schedule 4.

(4) The financial statements for a financial year must also comply with
  (a) any other requirements of this Ordinance in relation to the financial statements; and
  (b) the accounting standards applicable to the financial statements.

(5) If, in relation to any financial statements, compliance with subsections (3) and (4) would be insufficient to give a true and fair view under subsection (1) or (2), the financial statements must contain all additional information necessary for that purpose.

(6) If, in relation to any financial statements, compliance with subsection (3) or (4) would be inconsistent with a requirement to give a true and fair view under subsection (1) or (2), the financial statements
  (a) must depart from subsection (3) or (4) (as the case may be) to the extent necessary for it to give a true and fair view; and
  (b) must contain the reasons for, and the particulars and effect of, the departure.

(7) Subsections (1), (2), (5) and (6) do not apply if the company falls within the reporting exemption for the financial year.

(8) In this section
  (a) accounting standards(會計準則) means statements of standard accounting practice issued or specified by a body prescribed by the Regulation; and
  (b) a reference to accounting standards applicable to any financial statements is a reference to accounting standards as are, in accordance with their terms, relevant to the company's circumstances and to the financial statements.

(9) This section has effect subject to section 382.

Section:

381

Subsidiary undertakings to be included in annual consolidated financial statements

(1) Subject to subsections (2) and (3), the annual consolidated financial statements for a financial year must include all the subsidiary undertakings of the company.

(2) Where the company falls within the reporting exemption for the financial year, one or more subsidiary undertakings may be excluded from the annual consolidated financial statements in compliance with the accounting standards applicable to the statements.

(3) Where the company does not fall within the reporting exemption for the financial year
  (a) one subsidiary undertaking may be excluded from the annual consolidated financial statements if the inclusion of the subsidiary undertaking is not material for the purpose of giving a true and fair view of the financial position, and of the financial performance, mentioned in section 380(2)(a) and (b); and
  (b) more than one subsidiary undertaking may be excluded from the annual consolidated financial statements if the inclusion of those subsidiary undertakings taken together is not material for the purpose of giving a true and fair view of the financial position, and of the financial performance, mentioned in section 380(2)(a) and (b).

(4) This section has effect subject to section 382.

Section:

382

Provisions supplementary to sections 380 and 381

(1) This section applies if at any time during a financial year of a private company
  (a) the company registers any transfer of shares in the company in contravention of the restrictions imposed by the company's articles;
  (b) the membership of the company exceeds the number specified in section 11(1)(a)(ii); or
  (c) the company makes an invitation to the public to subscribe for any shares or debentures of the company.

(2) The financial statements of the company for the financial year must comply with sections 380 and 381 as if the company were a public company.

(3) The Court may, on the application of the company or a person interested in the matter, order that subsections (1) and (2) do not apply.

(4) The Court may make the order on any terms and conditions that the Court thinks just and expedient.

(5) The Court must not make the order unless the Court is satisfied that
  (a) the occurrence of the event mentioned in subsection (1)(a), (b) or (c) was accidental;
  (b) it was due to inadvertence or to some other sufficient cause that the event occurred; or
  (c) it is just and equitable to grant the relief on other grounds.

Section:

383

Notes to financial statements to contain information on directors’ emoluments etc.

(1) The financial statements for a financial year must contain, in the notes to the statements, the information prescribed by the Regulation for the purposes of this subsection about the following
  (a) the directors' emoluments;
  (b) the directors' retirement benefits;
  (c) payments made or benefit provided in respect of the termination of the service of directors, whether in the capacity of directors or in any other capacity while directors;
  (d) loans, quasi-loans and other dealings in favour of
    (i) directors of the company and of a holding company of the company;
    (ii) bodies corporate controlled by such directors; and
    (iii) entities connected with such directors;
  (e) material interests of directors in transactions, arrangements or contracts entered into by the company or another company in the same group of companies;
  (f) consideration provided to or receivable by third parties for making available the services of a person as director or in any other capacity while director.

(2) In subsection (1)
  (a) a reference to a director
    (i) in the case of subsection (1)(b), includes a former director;
    (ii) in the case of subsection (1)(c) includes a former director and shadow director; and
    (iii) in the case of subsection (1)(d) and (e), includes a shadow director;
  (b) a reference to a body corporate controlled by a director has the meaning given by section 492; and
  (c) a reference to an entity connected with a director has the meaning given by section 486.

(3) Despite subsection (1)(d), the financial statements for a financial year are not required to contain the information prescribed by the Regulation for the purposes of that subsection if the company complies with the requirements prescribed by the Regulation for the purposes of this subsection.

(4) The notes to any financial statements must also comply with other requirements prescribed by the Regulation.

(5) A person who is, or has been during the preceding 5 years, a director or shadow director of a company must give notice to the company of any matter that
  (a) is prescribed by the Regulation; (b) relates to the person; and
  (c) is necessary for the purposes of subsection (1).

(6) A person who contravenes subsection (5) commits an offence and is liable to a fine at level 5.

Section:

384

Register of particulars not required to be contained in notes to financial statements

(1) A company must enter into a register the particulars that would, but for section 383(3), be required by section 383(1)(d) to be contained in the notes to the financial statements for a financial year.

(2) A company must keep the particulars in the register for at least 10 years after the date on which the particulars are entered.

(3) If a company contravenes subsection (1) or (2), the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4.

Section:

385

Place where register mentioned in section 384 must be kept

(1) A company must keep the register mentioned in section 384 at
  (a) the company's registered office; or
  (b) a place prescribed by regulations made under section 657.

(2) A company must notify the Registrar of the place at which the register mentioned in section 384 is kept. The notice must be in the specified form and be delivered to the Registrar for registration within 15 days after the register is first kept at that place.

(3) A company must notify the Registrar of any change (other than a change of the address of the company's registered office) in the place at which the register mentioned in section 384 is kept. The notice must be in the specified form and be delivered to the Registrar for registration within 15 days after the change.

(4) Subsection (2) does not require a company to notify the Registrar of the place at which the register mentioned in section 384 is kept
  (a) if, in the case of a register that came into existence on or after the commencement date* of this section, it has at all times been kept at the company's registered office; or
  (b) if
    (i) immediately before that commencement date*, the company kept a register for the purposes of section 161BB of the predecessor Ordinance; and
    (ii) on and after that commencement date*, that register is kept as a register for the purposes of section 384 at the place at which that registrar was kept immediately before that commencement date*.

(5) If a company contravenes subsection (1), (2) or (3), the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

Section:

386

Right to inspect and request copy

(1) A member of a company is entitled, on request made in the prescribed manner and without charge, to inspect the register kept by the company under section 384 in accordance with regulations made under section 657.

(2) A member of a company is entitled, on request and on payment of a prescribed fee, to be provided with a copy of the register kept by the company under section 384, or any part of it, in accordance with regulations made under section 657.

(3) In this section
prescribed(訂明) means prescribed by regulations made under section 657.

Section:

387

Statement of financial position to be approved and signed

(1) A statement of financial position that forms part of any financial statements
  (a) must be approved by the directors; and
  (b) must be signed
    (i) by 2 directors on the directors' behalf; or
    (ii) in the case of a company having only one director, by the director.

(2) Every copy of a statement of financial position that forms part of any financial statements laid before a company in general meeting under section 429, or sent to a member under section 430 or otherwise circulated, published or issued by the company, must state the name of the person who signed the statement on the directors' behalf.

(3) If, as respects any financial statements a copy of which is circulated, published or issued by the company, subsection (1) is contravened, the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4.

(4) If subsection (2) is contravened, the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4.

Subdivision:4

Directors’ Report

Section:

388

Directors must prepare directors’ report

(1) A company's directors must prepare for each financial year a report that
  (a) complies with sections 390 and 543(2) and Schedule 5;
  (b) contains the information prescribed by the Regulation; and
  (c) complies with other requirements prescribed by the Regulation.

(2) Despite subsection (1), if the company is a holding company in a financial year, and the directors prepare annual consolidated financial statements for the financial year, the directors must instead prepare for the financial year a consolidated report that
  (a) complies with sections 390 and 543(2) and Schedule 5;
  (b) contains the information prescribed by the Regulation; and
  (c) complies with other requirements prescribed by the Regulation.

(3) Subsection (1) or (2) does not require the directors' report for a financial year to comply with Schedule 5 if
  (a) the company falls within the reporting exemption for the financial year;
  (b) the company is a wholly owned subsidiary of another body corporate in the financial year; or
  (c) the company is a private company that does not fall within the reporting exemption for the financial year, and a special resolution is passed by the members to the effect that the company is not to prepare a business review required by that Schedule for the financial year.

(4) A resolution for the purposes of subsection (3)(c)
  (a) may be passed in relation to
    (i) a financial year; or
    (ii) a financial year and every subsequent financial year;
  (b) must be passed at least 6 months before the end of the financial year to which the directors' report relates; and
  (c) may only be revoked by a special resolution.

(5) Subsections (1), (2) and (3) have effect subject to section 389.

(6) A director of a company who fails to take all reasonable steps to secure compliance with subsection (1) or (2) commits an offence and is liable to a fine of $150000.

(7) A director of a company who wilfully fails to take all reasonable steps to secure compliance with subsection (1) or (2) commits an offence and is liable to a fine of $150000 and to imprisonment for 6 months.

(8) If a person is charged with an offence under subsection (6), it is a defence to establish that the person had reasonable grounds to believe, and did believe, that a competent and reliable person
  (a) was charged with the duty of ensuring that subsection (1) or (2) (as the case may be) was complied with; and
  (b) was in a position to discharge that duty.

Section:

389

Provisions supplementary to section 388

(1) This section applies if at any time during a financial year of a private company
  (a) the company registers any transfer of shares in the company in contravention of the restrictions imposed by the company's articles;
  (b) the membership of the company exceeds the number specified in section 11(1)(a)(ii); or
  (c) the company makes an invitation to the public to subscribe for any shares or debentures of the company.

(2) The directors' report for the financial year is required to comply with section 388 as if the company were a public company.

(3) The Court may, on the application of the company or a person interested in the matter, order that subsections (1) and (2) do not apply.

(4) The Court may make the order on any terms and conditions that the Court thinks just and expedient.

(5) The Court must not make the order unless the Court is satisfied that
  (a) the occurrence of the event mentioned in subsection (1)(a), (b) or (c) was accidental;
  (b) it was due to inadvertence or to some other sufficient cause that the event occurred; or
  (c) it is just and equitable to grant the relief on other grounds.

Section:

390

Contents of directors’ report: general

(1) A directors' report for a financial year must contain
  (a) the name of every person who was a director of the company
    (i) during the financial year; or
    (ii) during the period beginning with the end of the financial year and ending on the date of the report; and
  (b) the principal activities of the company in the course of the financial year.

(2) A directors' report must contain particulars of any other matter
  (a) that is material for the members' appreciation of the state of the company's affairs; and
  (b) the disclosure of which will not, in the directors' opinion, be harmful to the business of the company.

(3) This section has effect in relation to a directors' report required to be prepared under section 388(2) as if a reference to the company in subsection (1) or (2) were a reference to
  (a) the company; and
  (b) the subsidiary undertakings included in the annual consolidated financial statements for the financial year.

Section:

391

Directors’ report to be approved and signed

(1) A directors' report
  (a) must be approved by the directors; and
  (b) must be signed on the directors' behalf by a director or by the company secretary.

(2) Every copy of a directors' report laid before a company in general meeting under section 429, or sent to a member under section 430 or otherwise circulated, published or issued by the company, must state the name of the person who signed the report on the directors' behalf.

(3) If, as respects any directors ' report a copy of which is circulated, published or issued by the company, subsection (1) is contravened, the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4.

(4) If subsection (2) is contravened, the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4.

Division:5

Auditor and Auditor’s Report

Subdivision:1

Preliminary

Section:

392

Interpretation

In this Division
appointment period (委任期) , in relation to a financial year, means the period of 28 days beginning on whichever is the earlier of the following
  (a) the date on which a copy of the reporting documents for the previous financial year is sent or provided to every member of the company under section 430(3) or 612(1)(b) (as the case may be);
  (b) the last date on which a copy of the reporting documents for the previous financial year must be sent or provided to every member of the company under section 430(3) or 612(1)(b) (as the case may be);
cessation statement (停任陳述) means a statement given under section 422(1), (2) or (3) or 423(2)(a);
practice unit (執業單位) has the meaning given by section 2(1) of the Professional Accountants Ordinance (Cap 50);
statement of circumstance (情況陳述) means a statement given under section 424(a) or 425(1)(a).

Subdivision:2

Appointment of Auditor

Section:

393

Eligibility for appointment

(1) Only a practice unit is eligible for appointment as auditor of a company under this Subdivision. (2) The following are disqualified for appointment as auditor of a company under this Subdivision
  (a) a person who is an officer or employee of the company;
  (b) a person who is a partner or employee of a person mentioned in paragraph (a);
  (c) a person who
    (i) is, by virtue of paragraph (a) or (b), disqualified for appointment as auditor of any other undertaking that is a subsidiary undertaking, or a parent undertaking, of the company or is a subsidiary undertaking of that parent undertaking; or
    (ii) would be so disqualified if the undertaking were a company.

(3) In this section, a reference to an officer or employee of a company excludes an auditor of the company.

Section:

394

Auditor must be appointed for each financial year

(1) An auditor must be appointed for each financial year of a company.

(2) An auditor may be appointed only under this Subdivision.

Section:

395

Appointment of first auditor by directors

(1) This section applies to
  (a) a company formed and registered under this Ordinance; and
  (b) a company formed and registered under a provision of the predecessor Ordinance having a continuing effect under Schedule 11 or by virtue of section 23 of the Interpretation and General Clauses Ordinance (Cap 1).

(2) If the company is required to hold an annual general meeting in accordance with section 610 in respect of its first financial year, the directors may appoint the auditor of the company for that first financial year at any time before the annual general meeting.

(3) If, by virtue of section 612(1) or (2), the company is not required to hold an annual general meeting in accordance with section 610 in respect of its first financial year, the directors may appoint the auditor of the company for that first financial year at any time before the appointment period in relation to the next financial year.

Section:

396

Appointment of auditor by company members

(1) A company must appoint the auditor of the company for a financial year by a resolution passed at the annual general meeting held in respect of the previous financial year.

(2) Subsection (1) does not apply to a company that, by virtue of section 612(2), is not required to hold an annual general meeting in accordance with section 610 in respect of the previous financial year.

(3) A company must appoint the auditor of the company for a financial year by a resolution passed at a general meeting if
  (a) by virtue of section 612(2), it is not required to hold an annual general meeting in accordance with section 610 in respect of the previous financial year; and
  (b) no person is deemed to be reappointed as auditor of the company for the financial year under section 403.

(4) An appointment under subsection (3) must be made before the end of the appointment period in relation to the financial year.

(5) If, at the annual general meeting held in respect of the previous financial year, a company has not appointed the auditor of the company for a financial year, the company must make the appointment by a resolution passed at another general meeting.

(6) A company to which section 395 applies may, by a resolution passed at a general meeting, appoint the auditor of the company for its first financial year if the directors have not done so under that section.

Section:

397

Appointment to fill casual vacancy

(1) The directors may appoint a person to fill a casual vacancy in the office of auditor of the company.

(2) If the directors have not done so within one month after the casual vacancy occurs, the members may, by a resolution passed at a general meeting, appoint a person to fill the casual vacancy.

Section:

398

Appointment of auditor by Court

(1) The Court may, on application by a member of a company, appoint the auditor of the company for a financial year if
  (a) in the case of a company required to hold an annual general meeting in accordance with section 610 in respect of the previous financial year
    (i) at the annual general meeting, no person has been appointed as auditor of the company for the financial year; or
    (ii) an annual general meeting has not been held in accordance with that section; or
  (b) in the case of a company not required to hold an annual general meeting in accordance with section 610 in respect of the previous financial year by virtue of section 612(2)
    (i) at the end of the appointment period in relation to the financial year, no person has been appointed as auditor of the company for the financial year; and
    (ii) no person is deemed to be reappointed as auditor of the company for the financial year under section 403.

(2) The Court may, on application by a member of a company to which section 395 applies, appoint the auditor of the company for its first financial year if an appointment has not been made under sections 395(2) or (3) and 396(6).

(3) The Court may, on application by a member of a company, appoint a person to fill a casual vacancy in the office of auditor of the company if an appointment has not been made under section 397.

Section:

399

Effect of appointing a firm as auditor

If a firm is appointed, by the firm name, as auditor of a company, the appointment is to be regarded as an appointment of those persons who
  (a) are the partners in the firm from time to time during the currency of the appointment; and
  (b) are eligible, and not disqualified, for appointment as auditor of the company under this Subdivision.

Section:

400

Special notice required for resolution for appointing auditor in some cases

(1) Special notice is required for
  (a) a resolution proposed for the purposes of section 396(1), (3) or (5) for appointing a person as auditor in place of a specified incumbent; and
  (b) a resolution proposed for the purposes of section 397(2).

Note

See also section 578 which sets out the requirements regarding special notice.

(2) Special notice is also required for a resolution proposed for the purposes of section 396(1), (3) or (5) for appointing a specified incumbent as auditor if that incumbent holds office by virtue of an appointment by the directors to fill a casual vacancy under section 397(1).

(3) On receipt of a special notice, the company must send a copy of it
  (a) to the person proposed to be appointed as auditor; and
  (b) in the case of
    (i) a proposed appointment under section 396(1), (3) or (5) of a person in place of a specified incumbent, to that incumbent; or
    (ii) a proposed appointment under section 396(1), (3) or (5) of a specified incumbent who holds office by virtue of an appointment under section 397(1) or (2) to fill a casual vacancy caused by a resignation, to the person who resigned.

(4) In this section
specified incumbent(指明在任人) means
  (a) the person who is the last auditor of the company and whose term of office as auditor has expired; or
  (b) the person whose term of office as auditor will expire
    (i) at the end of the general meeting; or
    (ii) at the end of the appointment period in relation to the financial year concerned.

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