Hong Kong Ordinances

BANKING ORDINANCE - SECT 58A

Disciplinary action in respect of relevant individuals

(Past version on 01/04/2003).



"misconduct" (失當行為)

"guilty of misconduct" (犯失當行為)

"relevant individual" (有關人士)

"relevant particulars" (有關資料)

(1) Where-

   (a)  a relevant individual is, or was at any time, guilty of  misconduct;
        or

   (b)  the Monetary Authority is of the opinion that a relevant  individual
        is not, or has ceased to be, a fit and proper person in his capacity
        as that type of relevant individual, then the Monetary Authority may,
        after consultation with the Securities  and Futures Commission-

   (c)  remove all or part of the individual's relevant particulars from the
        register; or

   (d)  suspend all or part of the individual's relevant particulars from the
        register for such period or until the occurrence of such event as the
        Monetary Authority specifies.

(2) Without limiting the generality of subsection (1) or the operation of any
other provisions of this Ordinance, for the avoidance of doubt, it is hereby
declared that the Monetary Authority may exercise his power under that
subsection wholly or partly on the basis of information disclosed to the
Monetary Authority by the Securities and Futures  Commission, and whether or
not the information arises from an investigation under section 182 of the
Securities and Futures Ordinance ( Cap 571).

(3) The Monetary Authority shall not exercise his power under subsection (1)
against a relevant individual without first giving the individual an
opportunity of being heard.

(4) Where the Monetary Authority decides to exercise his power under
subsection (1) against a relevant individual, the Monetary Authority shall
inform the individual of his decision to do so by notice in writing served on
him, and the notice shall include-

   (a)  a statement of the reasons for which the decision is made;

   (b)  the time at which the decision is to take effect; and

   (c)  in so far as applicable, the duration and terms of the removal or
        suspension of particulars from the register to be imposed under the
        decision.

(4A) Where the Monetary Authority has exercised his power under subsection (1)
against a relevant individual, the Monetary Authority may disclose to the
public details of the decision he has made under that subsection, the reasons
for which the decision was made, and any material facts relating to the case.
(Added 19 of 2005 s. 10)

(5) Without prejudice to the exercise of any powers by the
Securities and Futures Commission under the Securities and Futures  Ordinance
( Cap 571), the Monetary Authority may make such recommendations to the
Securities and Futures Commission concerning any relevant  individual in
respect of the exercise of the power under section 196 or 197 of that
Ordinance as he considers appropriate.

(6) In this section-

"misconduct" (失當行為), in relation to a relevant individual, means-

   (a)  a contravention of any of the relevant provisions, within the meaning
        of Schedule 1 to the Securities and Futures Ordinance ( Cap 571),
        which are applicable to the individual; or

   (b)  an act or omission of the individual relating to the carrying on of
        any regulated activity-

        (i)    by the registered institution in relation to which the
               individual is a relevant individual; and

        (ii)   which, in the opinion of the Monetary Authority, is or is
               likely to be prejudicial to the interest of the investing
               public or to the public interest,
and "guilty of misconduct" (犯失當行為) shall be construed accordingly;

"relevant individual" (有關人士) means relevant individual within the
meaning of section 20(10);

"relevant particulars" (有關資料), in relation to a relevant individual,
means the information contained in the register maintained under section  20
(1)(ea) in relation to the individual.

(7) For the purposes of paragraph (b) of the definition of

"misconduct" in subsection (6), the Monetary Authority shall not form any
opinion that any act or omission is or is likely to be prejudicial to the
interest of the investing public or to the public interest, unless he has had
regard to such of the provisions set out in any code of conduct published
under section 169 of the Securities and Futures Ordinance ( Cap  571) or any
code or guideline published under section 399 of that Ordinance as are in
force at the time of occurrence of, and applicable in relation to, the act or
omission. (Added 6 of 2002 s. 5)