Hong Kong Ordinances

MANDATORY PROVIDENT FUND SCHEMES ORDINANCE - SECT 32

Investigation

(1) The Authority may, by written notice served on the approved  trustee of a
registered scheme, notify that trustee that the Authority intends to
investigate the matters specified in the notice on the ground that the
Authority reasonably believes that-

   (a)  a person has contravened this Ordinance with respect to the scheme; or

   (b)  circumstances may exist that could prejudice the interests of
        scheme members; or

   (c)  the trustee is failing, or has failed, to fulfil the trustee's duties
        with respect to the scheme. (Replaced 4 of 1998 s. 2)

(1A) The Authority must, as soon as practicable after serving such a notice,
investigate the matters specified in the notice. (Added 4 of 1998 s. 2)

(2) The Authority may appoint one or more competent persons to be inspectors
to conduct an investigation under this section.

(3) For the purpose of conducting an investigation, an inspector may do any of
the following-

   (a)  enter premises (other than premises referred to in subsection

(3A)) if the inspector reasonably believes that it is necessary to enter those
premises because they may have some connection with a registered  scheme;

   (b)  inspect those premises and make copies of records found on the
        premises that the inspector reasonably believes may relate to the
        financial or other affairs of the scheme;

   (c)  require the trustee of the scheme or any other person who the
        inspector reasonably believes has custody of records relating to the
        affairs of the trustee or the scheme to produce the records to the
        inspector;

   (d)  require the trustee or any other person who the inspector reasonably
        believes has information concerning the affairs of the scheme-

        (i)    to give all reasonable assistance to the inspector in
               connection with the investigation; and

        (ii)   to appear before the inspector at a time and place specified by
               the inspector in writing to be examined with respect to the
               matters relating to the affairs of the trustee or the scheme
               and to answer questions that the inspector may put to the
               trustee or other person. (Replaced 4 of 1998 s. 2)

(3A) If premises are being used as private dwelling, an inspector may enter
and search those premises only under the authority of a warrant issued under
subsection (3B). (Added 4 of 1998 s. 2)

(3B) A magistrate may, on an application made by or on behalf of an inspector,
issue a warrant authorizing the inspector to enter and search premises
referred to in subsection (3A) if satisfied by information made on oath that
there are reasonable grounds for suspecting-

   (a)  that the premises may have some connection with a particular
        registered scheme; and

   (b)  that there may be on the premises records relating to the affairs of
        the trustee or the scheme. (Added 4 of 1998 s. 2)

(3C) An inspector who enters premises under the authority of a warrant issued
under this section may take possession of any records that the inspector
reasonably believes relate to the affairs of the trustee or the scheme. (Added
4 of 1998 s. 2)

(4) If an inspector is satisfied that any person has, without reasonable
excuse, failed to comply with any reasonable request in respect of his
investigation or any requirement made under this Ordinance in respect of that
investigation, the inspector may, by complaint made to the Court, certify the
failure of that person to so comply.

(5) On the receipt of a certificate made under subsection (4), the Court may
inquire into the case and, after hearing any statement that may be offered by
way of an explanation by the person who is the subject of the complaint, may
accept that explanation or alternatively punish that person in the same way as
a person who is found guilty of a contempt of court.

(6) A person is not excused from answering a question that may be put to him
by an inspector under this section on the ground that the answer may tend to
incriminate him but, if the person claims, before answering the question, that
the answer may tend to incriminate him, neither the question put to him by the
inspector nor the answer of the person is admissible in evidence against the
person in criminal proceedings other than in proceedings relating to a charge
of perjury in respect of the answer.

(7) Any person who fails to produce any document or record required to be
produced under subsection (3) with the intention of obstructing, delaying or
otherwise frustrating the commencement, progress or completion of an
investigation under this section commits an offence and is liable on summary
conviction to a fine at level 6 and to imprisonment for 1 year.

(8) On the completion of an investigation by an inspector under this section,
the inspector shall prepare a report setting out his findings concerning the
circumstances or other matters investigated by him and any other relevant
matters arising out of the investigation that the inspector reasonably
believes should be included in the report and shall submit that report to the
Authority.

(9) On receiving a report of an investigation conducted under this section,
the Authority must provide a copy of the report to the approved  trustee of
the registered scheme concerned. The Authority may also do either or both of
the following-

   (a)  provide a copy of the report to any person who appears to the
        Authority to have an interest in the scheme;

   (b)  publish the report or any part of it in such publication as it
        considers appropriate. (Replaced 4 of 1998 s. 2)

(10) Nothing in this section requires disclosure to an inspector appointed
under subsection (2)-

   (a)  by a solicitor of any privileged communication made to him in that
        capacity, except as respects the name and address of his client; or

   (b)  by an authorized institution within the meaning of the Banking 
        Ordinance ( Cap 155) relating to the affairs of a customer unless-

        (i)    that customer is a person who the inspector reasonably believes
               may be able to give information relevant to the investigation;
               and

        (ii)   the Authority is satisfied that the disclosure is necessary for
               the purposes of the investigation and certifies in writing that
               this is the case. (Enacted 1995. Amended 4 of 1998 s. 2)