Hong Kong Ordinances

OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE - SECT 18

Registration

(1) Subject to subsection (3), where the Registrar receives an application
under section 15 for the registration of an occupational  retirement scheme
and is satisfied-

   (a)  subject to section 17 as regards the application and the scheme, that
        the requirements of section 15 have been complied with;

   (b)  that the requirement of section 25(2) (in the case of an existing
        scheme governed by a trust) has been complied with in relation to the
        scheme as though it was a registered scheme or (in the case of a
        proposed scheme which will be governed by a trust) will be complied
        with in relation to the scheme;

   (c)  subject to subsection (2), that the terms of the scheme ensure that in
        the event that the scheme was terminated or otherwise wound up the
        benefits payable to every member of the scheme under such terms would
        be paid directly to such member instead of being paid through the
        relevant  employer of the scheme or his agent; and

   (d)  (where the scheme is or is stated to be an offshore scheme) that the
        terms of the scheme provide that, in the event that-

        (i)    the registration of the scheme under this Ordinance is
               cancelled; and

        (ii)   (A) the period within which an appeal against such cancellation
               may be made has expired and no such appeal has been made; or
               (B) an appeal is duly made against such cancellation and has
               been dismissed by the Appeal Board and all proceedings (if any)
               incidental to such appeal and dismissal have been finally
               disposed of, any vested benefit which every member of the
               scheme who is the holder of an identity card within the meaning
               of the Registration of Persons  Ordinance ( Cap 177) is
               entitled to receive or which any other person is entitled to
               receive in respect of such member under the terms of the scheme
               shall thereupon become payable as if the condition precedent
               (if any) of such entitlement had been satisfied, the Registrar
               shall allow the application.

(2) Where the terms of the scheme allow the administrator of the scheme to
withhold any part of any payment due to be made under the terms of the scheme
to a member of the scheme for the purpose of effecting repayment of a debt
owed by that member to the relevant employer of the scheme upon the production
of a written acknowledgment of such debt made by that member, the terms of the
scheme shall not solely by this reason be regarded as not having the effect
provided for in subsection (1)(c).

(3) Where the Registrar receives an application under section 15 for the
registration of an occupational retirement scheme which is or is stated to be
an offshore scheme and having had regard to all information available to him
is satisfied that-

   (a)  the scheme-

        (i)    (in the case of an existing scheme) is not governed by a trust
               and is not the subject of or regulated by an
               insurance arrangement;

        (ii)   (in the case of a proposed scheme) will not be governed by a
               trust and will not be the subject of or regulated by an
               insurance  arrangement; or

   (b)  the scheme (where it is an existing scheme) is or (where it is a
        proposed scheme) will be governed by a trust which does not or (where
        appropriate) will not require compliance with the requirement of
        section  25 (2) in relation to the scheme, the Registrar may allow the
        application if the conditions prescribed in subsection (4) are
        fulfilled as regards the scheme.

(4) The conditions referred to in subsection (3) are-

   (a)  as regards the application the requirements of section 15 have been
        complied with to the satisfaction of the Registrar;

   (b)  the Registrar-

        (i)    is satisfied that the scheme's funding arrangements provide
               that the assets of the scheme are kept separate and distinct
               from and do not form part of the assets of the
               relevant employer of the scheme or the assets of the
               administrator of the scheme which are not vested in him in his
               capacity as such; or

        (ii)   is not satisfied in the manner described in subparagraph (i)
               but is satisfied that to keep the assets of the scheme separate
               and distinct from the assets of the relevant employer or the
               assets of the administrator of the scheme which are not vested
               in him in his capacity as such is not possible or reasonably
               practicable;

   (c)  (in the case of a scheme referred to in subsection (3)(b)) the
        Registrar is satisfied that because of the proper law of the trust
        governing the scheme, compliance with the requirement of section 25(2)
        is not possible or reasonably practicable; and

   (d)  the Registrar, having had regard to the requirement of section  27 (2)
        and the interests of the members of the scheme as a whole, considers
        it appropriate to allow the application.

(5) Where the Registrar allows an application for registration of an
occupational retirement scheme, he shall issue a certificate of registration
to the relevant employer of the scheme.

(6) Where the Registrar refuses an application for registration, he shall give
a written notice of the refusal to the applicant which notice shall state the
reason for refusal. (Enacted 1992)