Hong Kong Ordinances

OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE - SECT 2

Interpretation

(Past version on 10/01/2000).
(Past version on 23/07/1999).
(Past version on 05/11/1998).
(Past version on 01/07/1997).
(Past version on 30/06/1997).

(1) In this Ordinance, unless the context otherwise requires-

"accrued rights" (累算權益) means, in relation to a member of an
occupational  retirement scheme, the rights for the time being conferring
entitlement to the receipt by or in respect of him of benefits under the
scheme, being the benefits arising as regards the member by reference to the
scheme's past service liability to him, on the day concerned;

"actuary" (精算師) means-

   (a)  a Fellow of the Faculty of Actuaries of Scotland;

   (b)  a Fellow of the Institute of Actuaries of England;

   (c)  a Fellow of the Society of Actuaries of the United States of America;

   (d)  a Fellow of the Institute of Actuaries of Australia; and

   (e)  any person who holds such qualification as the Registrar may accept as
        being of a standard comparable to that of a person described in
        paragraph (a), (b), (c) or (d);

"administrator" (管理人) means-

   (a)  in the case of a scheme or pooling agreement governed by a trust, the
        trustee concerned;

   (b)  in the case of a scheme or pooling agreement which is the subject of
        or regulated by an insurance arrangement, the insurer concerned;

   (c)  in any other case, the person who is principally responsible for the
        management of the scheme and its assets otherwise than as a person who
        is solely concerned with the investment or custody of the assets;

"aggregate past service liability" (過去服務總負債) means, in relation
to a particular day and a particular occupational retirement scheme, the
aggregate of the values of the past service liability arising on that day
under the scheme as regards every member thereof added together;

"aggregate vested liability" (既有總負債) means, in relation to a
particular day and a particular occupational retirement scheme, the aggregate
of the values of the vested liabilities arising on that day under the scheme
as regards every member thereof added together;

"Appeal Board" (上訴委員會) means the Occupational Retirement Schemes
Appeal  Board constituted under section 62;

"associate" (有關連人士) means, in relation to an employer-

   (a)  the spouse or a parent, child, grandparent, grandchild, sister or
        brother of that employer;

   (b)  a body corporate of which that employer is a director or a shareholder
        who is entitled, whether directly or indirectly, to exercise or
        control the exercise of 20% or more of the voting power at any general
        meeting of that body corporate;

   (c)  any person who is a partner of that employer;

   (d)  if that employer is a body corporate-

        (i)    any director of that body corporate;

        (ii)   any body corporate which is- (A) a subsidiary; (B) the
               holding company; or (C) another subsidiary of the
               holding company, of the employer;

        (iii)  any director of any such subsidiary or holding company; and

        (iv)   the spouse or a parent, child, grandparent, grandchild, sister
               or brother of a director referred to in subparagraphs (i) and
               (iii); or

   (e)  such other persons as may be specified by the Registrar by rules made
        under section 73(1);

"auditor" (核數師) means-

   (a)  a Hong Kong accountant; or

   (b)  any person who holds such qualification as the Registrar may accept as
        being of a standard comparable to that of a Hong Kong accountant;

"authorized insurer" (獲授權保險人) means a person who is an insurer
within the meaning of the Insurance Companies Ordinance ( Cap 41) and who is
authorized under section 8 of that Ordinance, or is deemed under section  61
(1) or (2) of that Ordinance to be so authorized, to carry on insurance
business;

"company" (公司) means a company within the meaning of the Companies 
Ordinance ( Cap 32);

"consultative committee" (諮詢委員會) means a committee constituted under
section 34;

"country" (國家) includes any state, province or any territorial entity or
part which partly comprises the country;

"the court" (法院) means the Court of First Instance within the meaning of
the High Court Ordinance ( Cap 4); (Amended 25 of 1998 s. 2)

"declared return" (已公布收益) means, in relation to contributions to the
funds of a defined contribution scheme, the interest or return on such
contributions which stands credited from time to time to the individual
account of a member of the scheme in calculating the amount to which he is
entitled under the terms of the scheme and if the facts in any particular
case so dictate and the rules of the scheme so permit "declared return"
includes negative return;

"defined benefit scheme" (界定利益計劃) means an
occupational retirement scheme which is not a defined contribution scheme;

"defined contribution scheme" (界定供款計劃) means an
occupational retirement  scheme which provides that the amount of a benefit
under the scheme is to be an amount determined solely by reference to-

   (a)  the contributions to the scheme's funds by or in respect of the member
        concerned and any declared return in respect of such contributions

(where such return may be subject to a minimum guaranteed rate but is
otherwise unascertainable before it is declared); and

   (b)  where appropriate, the qualifying service and age of the employee;

"designated person" (指定人士) in relation to an occupational retirement 
scheme means a person who has given an undertaking referred to in section  15
(f), 38 or 39(3) as regards the scheme and has not been released under
section 40;

"director" (董事) includes-

   (a)  any person who occupies the position of a director, by whatever name
        called;

   (b)  any person in accordance with whose directions or instructions the
        directors of a corporation are accustomed to act; and

   (c)  in the case of a body of persons which-

        (i)    is incorporated or otherwise established in any manner
               whatsoever by or under the laws of a country, territory or
               place outside Hong Kong; or

        (ii)   has its principal place of business in such a country,
               territory or place, any person who occupies a position
               analogous to that of a director of a company within the meaning
               of the Companies Ordinance ( Cap 32); (Amended 31 of 1999 s. 3)

"document" (文件) includes material used in connection with or produced by
any equipment which-

   (a)  automatically processes information;

   (b)  automatically records or stores information;

   (c)  can be used to cause information to be automatically recorded, stored
        or otherwise processed on other equipment; and

   (d)  can be used to retrieve information, whether the information is
        recorded or stored in the equipment itself or in other equipment;

"domicile" (本籍) means, in relation to an occupational retirement scheme or
trust, the country, territory or place by whose system of law the scheme or
trust is governed; (Amended 31 of 1999 s. 3)

"exempted scheme" (獲豁免計劃) means an occupational retirement scheme
for which the Registrar has issued an exemption certificate under section 7
and any withdrawal under section 12 has not come into effect; (Added 53 of
1995 s. 2)

"exemption certificate" (豁免證明書) means a certificate issued under
section  7 (1);

"existing" (現有) means existing immediately before the commencement of
section 1;

"full certificate" (足額證明書) means an actuarial certificate certifying
in the manner described in paragraph 1(a) or 2(a) of Part 3 of Schedule 1 or
Part 1 of Schedule 2;

"function" (職能) includes power and duty, and performance of a function
includes exercise of a power and discharge of a duty;

"group scheme" (集團計劃) means an occupational retirement scheme formed
by a grouping of companies in accordance with section 67; (Added 53 of 1995 s.
2)

"holding company" (母公司) means, in relation to an employer-

   (a)  (where the employer is a company) a company of which the employer is a
        subsidiary;

   (b)  (where the employer is not a company but is a body of persons
        otherwise incorporated or established in Hong Kong or elsewhere) any
        other body of persons appearing to the Registrar to be analogous to a
        company of which the employer would be a subsidiary were the employer
        a company within the meaning of the Companies Ordinance ( Cap 32);

"Hong Kong accountant" (香港會計師) means a certified public accountant
registered under the Professional Accountants Ordinance ( Cap 50) who holds a
valid practising certificate within the meaning of that Ordinance; (Amended 23
of 2004 s. 56)

"Hong Kong domiciled scheme" (以香港為本籍的計劃) means an
occupational retirement  scheme the domicile of which is Hong Kong;

"Hong Kong permanent identity card holder"
(香港永久性居民身分證持有人) means a person holding a permanent
identity card within the meaning of the Registration  of Persons Ordinance (
Cap 177);

"insurance arrangement" (保險安排) means an agreement or arrangement-

   (a)  made in respect of an occupational retirement scheme with an
        authorized insurer under which the insurer is responsible for managing
        the scheme; and (Amended 59 of 1993 s. 20)

   (b)  which is of a class or description specified in rules made by the
        Registrar;

"liquidator" (清盤人) means a liquidator appointed under section 49;

"member" (成員) includes, in relation to an occupational retirement scheme,
an individual who is entitled or prospectively entitled to benefits under the
scheme by virtue of-

   (a)  his employment by the relevant employer (whether past or present) of
        the scheme; or

   (b)  an agreement made between the relevant employer of the first-mentioned
        scheme and the relevant employer of another occupational 
        retirement scheme of which such individual was formerly a member,
        whether or not such individual is a party to the agreement,
and where appropriate, "member" also includes the estate of a deceased member;

"occupational retirement scheme" (職業退休計劃) means subject to
subsection (6) any scheme, not being a contract of insurance under which
benefits are payable only upon the death or disability of the insured, which-

   (a)  is comprised in one or more instruments or agreements; and

   (b)  has or is capable of having effect in relation to one or more
        descriptions or categories of employment so as to provide benefits, in
        the form of pensions, allowances, gratuities or other payments,
        payable on termination of service, death or retirement, to or in
        respect of persons gainfully employed (whether in Hong Kong or
        elsewhere) under a contract of service in any employment, and
        includes, where the context admits, a proposed such scheme;

"offshore scheme" (離岸計劃) means an occupational retirement scheme the
domicile of which is a country, territory or place outside Hong Kong; (Amended
31 of 1999 s. 3)

"participating scheme" (參與計劃) means, in relation to a
pooling agreement, an occupational retirement scheme to which the agreement
applies;

"partner" (合夥人) means a member of a partnership formed under the law of
Hong Kong or the law of any country, territory or place outside Hong Kong;
(Amended 31 of 1999 s. 3)

"past service liability" (過去服務負債) means, in relation to a
particular day and a particular member of an occupational retirement scheme-

   (a)  (in case the scheme is a defined contribution scheme) the aggregate of
        the contributions paid or payable under the scheme by the
        relevant employer and (where appropriate) by the member, in respect of
        that member during the period beginning when his membership commenced
        and ending on that particular day, and the amount of any
        declared return on such contributions including any guaranteed return
        paid or payable pursuant to the scheme; or

   (b)  (in case the scheme is a defined benefit scheme) the value on that
        particular day, as determined by an actuary, of the benefit 
        entitlement under the scheme of, or in respect of, the member which,
        having regard to his qualifying service, could reasonably be expected
        to be received prospectively or contingently or, where appropriate,
        both; the actuary having made a reasonable allowance for the effects
        of mortality, what he considers to be prospective future salary
        increases, withdrawal from service rates and such other factors (if
        any) as he considers relevant,
and in this definition "contributions" (供款) and "benefit entitlement"
(利益享有 權) include, in relation to a member who was a member of
another occupational retirement scheme before joining the first-mentioned
scheme, such contributions or benefit entitlement which stood to his credit
under the second-mentioned scheme as were transferred in accordance with the
terms of the first-mentioned scheme and stood thereunder to his credit upon
his joining the first-mentioned scheme and where such transfer
occurs, "membership" (成員) in relation to that member includes such period
of membership in the second-mentioned scheme as is counted towards membership
of the first-mentioned scheme;

"prescribed fee" (訂明費用) means a fee prescribed in rules made by the
Registrar;

"qualified certificate" (不足額證明書) means an actuarial certificate
certifying in the manner described in paragraph 1(b) or 2(b) of Part 3 of
Schedule 1 or Part 2 of Schedule 2;

"qualifying service" (可享利益服務年資) means, in relation to a member
of an occupational retirement scheme, the period of service by reference to
which his benefits under the scheme are ascertained;

"the register" (註冊紀錄冊) means the register kept in accordance with
section  6 ;

"registered scheme" (註冊計劃) means an occupational retirement scheme
which is for the time being registered under section 18;

"registered trust company" (註冊信託公司) means a company which is for
the time being registered under Part VIII of the Trustee Ordinance ( Cap 29);

"Registrar" (處長) means the Mandatory Provident Fund Schemes Authority;
(Replaced 4 of 1998 s. 4)

"registration" (註冊) means registration under section 18;

"relevant employer" (有關僱主) means, in relation to an occupational 
retirement scheme, the employer who provides the employment which entitles or
enables the employee to be a member of the scheme;

"restricted investment" (受限制投資項目) has the meaning assigned to it
by section 27;

"security" (證券) means any share, loan or other stock, debenture, fund, or
any bond or notes of, or issued by (or on behalf of) any body (whether
established or extant in Hong Kong or elsewhere and whether corporate or
unincorporated) and includes-

   (a)  any right, option or interest (whether described as a unit or
        otherwise) in or in respect of any of the foregoing;

   (b)  any certificate of interest or participation in, or temporary or
        interim certificate for, receipt for, or warrant to subscribe to or
        purchase any of the foregoing; or

   (c)  any instrument commonly known as a security;

"solicitor" (律師) means a solicitor within the meaning of the Legal 
Practitioners Ordinance ( Cap 159);

"subsidiary" (附屬公司) means, in relation to an employer-

   (a)  where the employer is a company and there is another company which,
        pursuant to section 2 of the Companies Ordinance ( Cap 32), is for the
        purposes of that Ordinance deemed to be a subsidiary of the employer,
        the other company;

   (b)  where an employer is not a company but is a body of persons otherwise
        incorporated or established in Hong Kong or elsewhere, any other body
        of persons, appearing to the Registrar to be analogous to a company
        which would be so deemed to be a subsidiary of the employer were the
        employer a company within the meaning of the Companies Ordinance (
        Cap 32);

"vested benefit" (既有利益) means, in relation to a particular day and a
particular member of an occupational retirement scheme-

   (a)  in case the member is employed on that day by the relevant  employer
        of the scheme, the benefit which under the scheme the member is on
        that day entitled to receive, either immediately or prospectively, and
        also the benefit (if any) which any other person is on such day
        entitled so to receive in respect of such member, assuming the member
        had voluntarily resigned and had thereby ceased to be so employed on
        that day; or

   (b)  in case the member otherwise ceased to be employed by such employer
        before that day, the benefit which under the scheme the member is or
        was on such day entitled so to receive, and also the benefit (if any)
        which any other person is or was on that day entitled so to receive in
        respect of such member;

"vested liability" (既有負債) means-

   (a)  in relation to a particular day and a particular vested benefit
        entitlement under a defined benefit scheme, the value on that day, as
        determined by an actuary, of the vested benefit; or

   (b)  in relation to a particular day and a particular vested benefit
        entitlement under a defined contribution scheme-

        (i)    the contributions paid or payable under the scheme (including
               any amount paid or payable by reason of a guarantee given
               pursuant to the scheme) by the relevant employer of the scheme,
               and (where appropriate) by the relevant member in respect of
               that member assuming he ceased to be employed by that employer
               on that day; and

        (ii)   the value of any declared return on such contributions,
and in this definition "contributions" (供款) and "benefit entitlement"
(利益享有 權) include, in relation to a member who was a member of
another occupational retirement scheme before joining the first-mentioned
scheme, such contributions or benefit entitlement which stood to his credit
under the second-mentioned scheme as were transferred in accordance with the
terms of the first-mentioned scheme and stood thereunder to his credit upon
his joining the first-mentioned scheme.

(2) In relation to an offshore scheme references in this Ordinance to a trust
shall be construed as references to-

   (a)  in case the law of the domicile of that scheme includes a system or
        principles of equity, any relation between persons which under that
        system or those principles constitutes, or is treated or regarded as
        being, a trust;

   (b)  in any other case, any relation in which-

        (i)    by virtue of the law of the domicile of that scheme a person
               holds property for the benefit of another person; and

        (ii)   as against all other persons, under the law of the domicile of
               that scheme the person so holding the property is, or is
               treated or regarded as being, the owner of it for all or most
               purposes, and references in this Ordinance to a trustee shall
               be construed as references to that person.

(3) A person shall not be deemed to be a person in accordance with whose
directions or instructions the directors of a corporation are accustomed to
act by reason only that the directors of the corporation act on advice given
by him in a professional capacity.

(4) In this Ordinance, "pooling agreement" (匯集協議) means an agreement
or arrangement- (Amended 59 of 1993 s. 20)

   (a)  which is-

        (i)    governed by a single trust; or

        (ii)   the subject of or regulated by an insurance arrangement
               including a series of insurance arrangements which are of the
               same class or description; (Amended 59 of 1993 s. 20)

   (b)  which applies to 2 or more individual occupational retirement  schemes
        each of which is-

        (i)    governed by such trust; or

        (ii)   (where appropriate) the subject of or regulated by such
               insurance arrangement, by virtue of such application;

   (c)  under which, in the case of an agreement or arrangement governed by
        such trust, the assets of its participating schemes are vested with
        the administrator of the agreement or arrangement, as the case may be;
        (Amended 59 of 1993 s. 20)

   (d)  which is managed, in the case of an agreement or arrangement governed
        by such trust, by a registered trust company; (Replaced 59 of 1993 s.
        20)

   (e)  in relation to which, and its participating schemes, proper accounts
        and records are kept; and (Replaced 59 of 1993 s. 20)

   (f)  under which the value of the assets attributable to, and the
        liabilities of, each of its participating schemes are readily
        determinable from such accounts and records. (Replaced 59 of 1993 s.
        20)

(5) The Registrar may accept an agreement as a pooling agreement for the
purposes of this Ordinance if he receives-

   (a)  a statement by a solicitor referred to in paragraph 2(c) of Part 2 of
        Schedule 1; and

   (b)  a statement by an auditor referred to in paragraph 3 of Part 2 of
        Schedule 1.

(6) (a) A contract of employment shall not be regarded as an
occupational retirement scheme by reason solely that under the contract the
employer concerned agrees to pay a gratuity to the employee concerned on the
termination of the contract and the period of employment to which the contract
relates does not exceed 4 years.

   (b)  Where-

        (i)    a contract described in paragraph (a) terminates;

        (ii)   the employee concerned is subsequently employed, whether with
               or without a break in service, by the same employer under
               another contract; and

        (iii)  the gratuity payable under the terminated contract is not paid
               in full within 6 months of such termination, or though such
               gratuity is so paid the whole or a substantial part of it is
               repaid by the employee to the employer, that other contract
               shall be regarded as an occupational retirement scheme.

(7) For the avoidance of doubt, it is hereby declared that where a
registered scheme is the subject of or regulated by an insurance  arrangement,
the assets of the scheme are, in so far as that arrangement is concerned, any
claims (including contingent and prospective claims) which may be made against
the authorized insurer concerned under that arrangement. (Added 59 of 1993 s.
20)

(8) For the purposes of an application for an exemption certificate under
section 16 of the Mandatory Provident Fund Schemes (Exemption)
Regulation ( Cap 485 sub. leg.) ("the Regulation"), where-

   (a)  an occupational retirement scheme was established; and

   (b)  an application for its registration under section 15 or its exemption
        under section 7, as the case may be, was made,
within the times required to qualify as a "relevant ORSO registered scheme"
within the meaning of section 2 of the Regulation, if subsequently-

        (i)    as a result of a provision of this Ordinance, an application to
               register the scheme again was required; or

        (ii)   any other change to the scheme took place that is not
               prohibited by this Ordinance but might create doubt that it
               continued to qualify as such a scheme, such an application or
               other change shall not affect the continuity of the
scheme nor its qualification as a "relevant ORSO registered scheme" within the
meaning of section 2 of the Regulation. (Added 52 of 1999 s. 2)

(9) Without limiting subsection (8), the following shall not affect
the continuity of a scheme nor its qualification as a "relevant ORSO
registered scheme" within the meaning of section 2 of the Regulation-

   (a)  application for subsequent registration of a scheme where the scheme
        has ceased to be registered under section 23(5);

   (b)  conversion of a scheme from being the subject of, or regulated by, an
        insurance arrangement into a scheme governed by a trust. (Added 52 of
        1999 s. 2)

(10) Notwithstanding subsection (8), where-

   (a)  an occupational retirement scheme referred to in that subsection is
        terminated; and

   (b)  the benefits payable to each member of the scheme have been paid out
        to such member, for the purposes of the Regulation, such a scheme
        shall cease to qualify
as a "relevant ORSO registered scheme" under section 2 of the Regulation, and
no application shall be made for an exemption certificate under section 16 of
the Regulation in respect of it. (Added 52 of 1999 s. 2) (Enacted 1992)

"accrued rights" (累算權益)

"actuary" (精算師)

"administrator" (管理人)

"aggregate past service liability" (過去服務總負債)

"aggregate vested liability" (既有總負債)

"Appeal Board" (上訴委員會)

"associate" (有關連人士)

"auditor" (核數師)

"authorized insurer" (獲授權保險人)

"company" (公司)

"consultative committee" (諮詢委員會)

"country" (國家)

"the court" (法院)

"declared return" (已公布收益)

"defined benefit scheme" (界定利益計劃)

"defined contribution scheme" (界定供款計劃)

"designated person" (指定人士)

"director" (董事)

"document" (文件)

"domicile" (本籍)

"exempted scheme" (獲豁免計劃)

"exemption certificate" (豁免證明書)

"existing" (現有)

"full certificate" (足額證明書)

"function" (職能)

"group scheme" (集團計劃)

"holding company" (母公司)

"Hong Kong accountant" (香港會計師)

"Hong Kong domiciled scheme" (以香港為本籍的計劃)

"Hong Kong permanent identity card holder"
(香港永久性居民身分證持有人)

"insurance arrangement" (保險安排)

"liquidator" (清盤人)

"member" (成員)

"occupational retirement scheme" (職業退休計劃)

"offshore scheme" (離岸計劃)

"participating scheme" (參與計劃)

"partner" (合夥人)

"past service liability" (過去服務負債)

"contributions" (供款)

"benefit entitlement" (利益享有權)

"membership" (成員)

"prescribed fee" (訂明費用)

"qualified certificate" (不足額證明書)

"qualifying service" (可享利益服務年資)

"the register" (註冊紀錄冊)

"registered scheme" (註冊計劃)

"registered trust company" (註冊信託公司)

"Registrar" (處長)

"registration" (註冊)

"relevant employer" (有關僱主)

"restricted investment" (受限制投資項目)

"security" (證券)

"solicitor" (律師)

"subsidiary" (附屬公司)

"vested benefit" (既有利益)

"vested liability" (既有負債)

"contributions" (供款)

"benefit entitlement" (利益享有權)

(4) In this Ordinance, "pooling agreement" (匯集協議)