Hong Kong Ordinances

OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE - SECT 20

Registered schemes' trustees, etc., to keep proper accounts and records, etc.

PART V

OPERATION OF REGISTERED SCHEMES

(1) Subject to subsection (5), the administrator of a registered  scheme shall
keep proper accounts and records as regards all assets, liabilities and
financial transactions of the scheme and as soon as reasonably practicable
after each of the scheme's financial years-

   (a)  cause to be prepared in relation to it financial statements as regards
        the scheme; and

   (b)  submit such statements to an auditor for audit and require such
        auditor to prepare a report on the accounts.

(2) The financial statements referred to in subsection (1) prepared in
relation to a registered scheme and a financial year of it shall-

   (a)  show a true and fair view of the financial transactions of the scheme
        during the year and of the disposition, at the last day of the year,
        of its assets and liabilities; and

   (b)  contain such other information as the Registrar may specify in
        guide-lines issued by him.

(3) A report prepared under subsection (1) in relation to a registered scheme
and a financial year of it shall-

   (a)  state whether or not in the opinion of the auditor preparing the
        report-

        (i)    proper accounts and records have been kept as regards all
               assets, liabilities and financial transactions of the scheme;

        (ii)   the financial statements prepared under subsection (1) in
               relation to the year show a true and fair view of the financial
               transactions of the scheme during the year and of the
               disposition, at the last day of the year, of its assets and
               liabilities;

   (b)  state whether or not in the opinion of the auditor preparing the
        report- (Amended 59 of 1993 s. 21)

        (i)    (where the scheme is a defined benefit scheme) the relevant 
               undertaking (as defined in subsection (4)) has been complied
               with;

        (ii)   (where the scheme is a defined contribution scheme)- (A)
               contributions have been made in accordance with the terms of
               the scheme; and (B) a shortfall between the scheme's assets and
               the scheme's aggregate vested liability exists, and if so
               stating the amount of such shortfall at the last day of the
               year;

        (iii)  as at the end of the year the assets of the scheme were subject
               to any assignment, charge, pledge or other encumbrance except-
               (A) the trust (if any) governing the scheme; (B) any charge or
               pledge created for the purposes of securing loans necessary for
               meeting the liabilities of the scheme; and (C) any option to
               acquire for valuable consideration any interest in the assets
               of the scheme granted in the normal course of business;

        (iv)   the requirement of section 27(2) has been complied with as
               regards the scheme as at the last day of the year and two such
               other dates in the year as the auditor preparing the report may
               elect: Provided that the intervening period between such dates
               shall not be shorter than 3 months;

   (c)  where-

        (i)    the auditor has been denied access to the employer's books and
               records in contravention of subsection (7); or

        (ii)   the auditor has not been given necessary information and
               explanations as required by subsection (7), state such fact;
               and

   (d)  contain such other information as the Registrar may specify in
        guide-lines issued by him.

(4) In subsection (3)(b)(i) "the relevant undertaking" (有關承諾) means-

   (a)  in case 2 or more actuarial certificates have been issued as regards a
        particular registered scheme each of which is either a full 
        certificate or a qualified certificate, the undertaking referred to in
        the most recent of those certificates;

   (b)  in case only 1 full certificate or qualified certificate has been so
        issued, the undertaking referred to in the certificate.

(5) Where-

   (a)  a registered scheme is a participating scheme of a pooling  agreement;

   (b)  the assets of the scheme were stated to be sufficient to meet its
        aggregate vested liability in-

        (i)    (where the scheme is a defined contribution scheme) the
               auditor's statement supplied under section 15 or the last
               auditor's report prepared under this section; or

        (ii)   (where the scheme is a defined benefit scheme) the last
               actuarial certificate supplied under section 15 or 31; and

   (c)  a majority of over 50% of the members of the scheme passes in
        accordance with rules made by the Registrar a resolution that this
        subsection applies to the scheme in relation to a particular financial
        year of the scheme, subsection (1)(b) shall not apply to the scheme in
        relation to that year.

(6) A resolution referred to in subsection (5)(c) shall not be passed in
relation to more than 2 consecutive financial years of a registered scheme.

(7) For the purposes of subsection (3), the relevant employer of a
registered scheme shall, as soon as reasonably practicable after a written
request is made of him by the auditor of the scheme-

   (a)  allow the auditor and such other person as may be authorized by that
        auditor, to have access to such books and records of the employer; and

   (b)  give to the auditor such information and explanations, as he may
        reasonably require for the purposes of discharging his duty in
        relation to the scheme.

(7A) The auditor appointed under subsection (7B)(a) of the relevant
employer of a registered scheme ("the employer's auditor") to which subsection
(1)(b) applies shall, not later than 4 months after each of the scheme's
financial years or such longer period as the Registrar may in his absolute
discretion permit in any particular case, give to the auditor
preparing the report under subsection (3)(b) ("the administrator's auditor") a
statement-

   (a)  in such form as the Registrar may specify in guidelines issued by him;

   (b)  containing such information as may reasonably be required for the
        purposes of enabling the administrator's auditor to discharge his duty
        under subsection (3)(b) in relation to the scheme; and

   (c)  where the employer's auditor-

        (i)    has been denied access to the employer's books and records in
               contravention of subsection (7B)(b)(i); or

        (ii)   has not been given necessary information and explanations as
               required by subsection (7B)(b)(ii), of that fact. (Added 59 of
               1993 s. 21)

(7B) For the purposes of subsection (7A), the relevant employer of a
registered scheme to which that subsection applies shall-

   (a)  ensure that, at all relevant times, he has appointed an auditor to
        discharge the duty imposed under that subsection on the employer's
        auditor; and

   (b)  as soon as reasonably practicable after a request is made of him by
        that auditor-

        (i)    allow the auditor and such other person as may be authorized by
               that auditor, to have access to such books and records of the
               employer; and

        (ii)   give to the auditor such information and explanations, as the
               auditor may reasonably require for the purposes of discharging
               his duty under that subsection. (Added 59 of 1993 s. 21)

(7C) The administrator of a pooling agreement accepted under section 2(5)
shall, subject to any exemption granted by the Registrar, appoint-

   (a)  a common accounting year for each of the schemes within the
        pooling agreement; and

   (b)  the same auditor to audit the financial statements of each
        participating scheme under the pooling agreement for the purposes of
        subsections (1)(b) and (2). (Added 53 of 1995 s. 12)

(8) An employer who fails to comply with subsection (7) or (7B) commits an
offence and shall be liable on summary conviction to a fine of $10000.
(Amended 59 of 1993 s. 21) (Enacted 1992)

(4) In subsection (3)(b)(i) "the relevant undertaking" (有關承諾) means-

   (a)  in case 2 or more actuarial certificates have been issued as regards a
        particular registered scheme each of which is either a full 
        certificate or a qualified certificate, the undertaking referred to in
        the most recent of those certificates;

   (b)  in case only 1 full certificate or qualified certificate has been so
        issued, the undertaking referred to in the certificate.