To make provision for the winding up of companies; for receivers
and managers; for offering of shares and debentures; for
prospectuses; for disqualification
orders;
for prevention of evasion of the Societies Ordinance; and for
incidental and connected matters.
(Replaced 28 of 2012 ss. 912 & 920. Amended 14 of 2016 s. 3)
[1 July 1933]
1.
Short title
This Ordinance may be cited as the
Companies (Winding Up and
Miscellaneous Provisions) Ordinance
. (Amended 28 of 2012 ss. 912 & 920)
(Format changes—E.R. 1 of 2014)
2.
Interpretation
(1)
In this Ordinance, unless the context otherwise requires—
a resolution for voluntary winding
up
(自動清盤決議
) has the meaning assigned
to it by section 228(2); (Added 6 of 1984 s. 2)
amend
(修訂
) includes
delete, add to or vary and the doing of all or any of such things simultaneously;
(Added 30 of 2004 s. 2)
articles
(章程細則
), in
relation to a company, means the articles of association of the company;Note—
Please also see section 98 of the Companies Ordinance (Cap. 622). A condition of an existing company’s
memorandum of association is to be regarded as a provision of the company’s
articles.
(Replaced 28 of 2012 ss. 912 & 920)
authorized financial institution
(認可財務機構
) means an authorized institution
within the meaning of section 2 of the Banking Ordinance (Cap. 155); (Added 12 of 1988 s. 2. Amended 49 of 1995 s. 53)
book and paper
(簿冊及文據
) and book or paper
(簿冊或文據
) include accounts, deeds, writings, and
documents;certificate of solvency
(有償債能力證明書
) means a certificate issued under
section 233; (Added 28 of 2003 s. 2)
Commission
(監察委員會
)
means—(a)
subject to paragraphs (b) and (c), the Securities and Futures
Commission referred to in section 3(1) of the Securities and
Futures Ordinance (Cap. 571);
(b)
where any relevant transfer order made under section 25 of
that Ordinance is in force, the recognized exchange company concerned or
both the Securities and Futures Commission and the recognized exchange
company concerned, in accordance with the provisions of that order;
or
(c)
where any relevant transfer order made under section 68 of
that Ordinance is in force, the recognized exchange controller concerned or
both the Securities and Futures Commission and the recognized exchange
controller concerned, in accordance with the provisions of that order;
(Replaced 5 of 2002 s. 407)
Companies Register
(公司登記冊
) has the meaning given by section
2(1) of the Companies Ordinance (Cap. 622);
(Added 28 of 2012 ss. 912 & 920)
company
(公司
) means—(a)
a company formed and registered under the Companies Ordinance (Cap. 622);
(Amended 14 of 2025 s. 103)
(b)
an existing company;
or
(Replaced 28 of 2012 ss. 912 & 920. Amended 14 of 2025 s. 103)
(c)
a re-domiciled company;
(Added 14 of 2025 s. 103)
company limited by guarantee
(擔保有限公司
) has the meaning given by section
9 of the Companies Ordinance (Cap. 622) for
the purposes of that Ordinance; (Added 28 of 2012 ss. 912 & 920)
company limited by shares
(股份有限公司
) has the meaning given by section
8 of the Companies Ordinance (Cap. 622) for
the purposes of that Ordinance; (Added 28 of 2012 ss. 912 & 920)
company secretary
(公司秘書
) includes any person occupying the position of company secretary
(by whatever name called); (Added 28 of 2012 ss. 912 & 920)
contributory
(分擔人
) has the meaning assigned to it by section
171(1);
(Added 6 of 1984 s. 2. Amended 14 of 2016 s. 6)
creditors’ voluntary winding up
(債權人自動清盤
) has the meaning assigned to it by
section 233(4); (Added 6 of 1984 s. 2)
debenture
(債權證
),
in relation to a company, includes debenture stock, bonds and any other debt
securities of the company, whether or not constituting a charge on the assets of the
company; (Replaced 28 of 2012 ss. 912 & 920)
default fine
(失責罰款
) has the meaning assigned to it by section 351(1A)(d);
(Added 6 of 1984 s. 2. Amended 75 of 1993 s. 2)
director
(董事
)
includes any person occupying the position of director by whatever name
called;document
(文件
)
includes summons, notice, order, and other legal process, and registers;existing company
(原有公司
) means a company formed and registered under a former Companies
Ordinance; (Replaced 28 of 2012 ss. 912 & 920)
financial statements
(財務報表
)
means—(a)
the annual financial statements; or
(b)
the annual consolidated financial statements,
as defined by section 357(1) of the Companies Ordinance (Cap. 622);
(Added 28 of 2012 ss. 912 & 920)
former Companies Ordinance
(《舊有公司條例
》) means—(a)
the Companies Ordinance 1865 (1 of
1865);
(b)
the Companies Ordinance 1911 (58 of
1911); or
(c)
the pre-amended Ordinance;
(Added 28 of 2012 ss. 912 & 920)
founder member
(創辦成員
) has the meaning given by section 2(1) of the Companies
Ordinance (Cap. 622); (Replaced 28 of 2012 ss. 912 & 920)
group of companies
(公司集團
) means any 2 or more companies or bodies
corporate one of which is the holding company of the other or others;
(Added 6 of 1984 s. 2)
image record
(影像紀錄
) means a record produced using the imaging method and, where the
context permits, includes a record in a legible form; (Added 28 of 2003 s. 2)
imaging method
(影像處理方法
) means a method by which documents in a legible form or in the
form of microfilm are scanned by a scanner and the information recorded therein is
converted into electronic images, which are then stored on electronic storage media
capable of being retrieved and reproduced in a legible form; (Added 28 of 2003 s. 2)
issued generally
(公開發出
), in relation to a prospectus, means issued to persons who are not
existing members or debenture holders of the company; (Added 78 of 1972 s. 2)
limited company
(有限公司
) means a company limited by guarantee or a company limited by
shares; (Added 28 of 2012 ss. 912 & 920)
liquidator
(清盤人
)
includes a provisional liquidator holding such office by virtue of section
194(1)(a)
or (aa) or (1A); (Added 46 of 2000 s. 2. Amended 14 of 2016 s. 6)
manager
(經理
), in relation to
a company, means a person who, under the immediate authority of the board of
directors, exercises managerial functions but does not include—(a)
a
receiver
or manager of the property of the company; or
(b)
a special manager of the estate or business of the company appointed
under section 216;
(Added 28 of 2003 s. 2)
member
(成員
), in relation to
a company, means—(a)
a founder member of the company; or
(b)
a person who agrees to become a member of the company and whose name is
entered, as a member, in the company’s register of members;
(Added 28 of 2012 ss. 912 & 920)
members’ voluntary winding up
(成員自動清盤
) has the meaning assigned to it by
section 233(4); (Added 6 of 1984 s. 2)
non-Hong Kong company
(非香港公司
) means a company incorporated outside Hong
Kong, other
than a re-domiciled company, that—
(Amended 14 of 2025 s. 103)
(a)
(b)
has established a place of business in Hong Kong before that
commencement date and continues to have a place of business in Hong Kong at
that commencement date;
(Replaced 28 of 2012 ss. 912 & 920)
officer
(高級人員
), in
relation to a body corporate, includes a director, manager or company secretary of
the body corporate; (Added 80 of 1974 s. 2. Amended 28 of 2012 ss. 912 & 920)
officer who is in default
(失責高級人員
) has the meaning assigned to it by
section 351(2); (Added 6 of 1984 s. 2)
Official Receiver
(破產管理署署長
) means the Official Receiver appointed under the Bankruptcy
Ordinance (Cap. 6); (Added 30 of 1999 s. 2)
ordinary resolution
(普通決議
) has the meaning given by section
563 of the Companies Ordinance (Cap. 622);
(Added 28 of 2012 ss. 912 & 920)
place of business
(營業地點
), in relation to a non-Hong Kong company, has the meaning given by
section 774(1) of the Companies Ordinance (Cap. 622); (Added 30 of 2004 s. 2. Amended 28 of 2012 ss. 912 & 920)
pre-amended Ordinance
(《修訂前的本條例
》) means the Companies Ordinance (Cap. 32) as in force from time to time before the
commencement
date#
of section 2 of Schedule 9 to the Companies Ordinance (Cap. 622); (Added 28 of 2012 ss. 912 & 920)
prescribed
(訂明
),
except in sections 2AB and 2AD, means as
respects the provisions of this Ordinance relating to the winding-up of companies,
prescribed by general rules, and as respects the other provisions of this Ordinance,
prescribed by the Chief Executive in Council; (Amended 23 of 1999 s. 3; 22 of 2023 s. 16)
printed
(印刷
、印製
) means produced by ordinary letterpress or
lithography; (Added 4 of 1963 s. 2. Amended 28 of 2012 ss. 912 & 920)
private company
(私人公司
) has the meaning given by section 11 of the Companies
Ordinance (Cap. 622) for the purposes of that
Ordinance; (Added 6 of 1984 s. 2. Amended 28 of 2012 ss. 912 & 920)
prospectus
(招股章程
)—(a)
subject to paragraph (b), means any prospectus, notice, circular,
brochure, advertisement, or other document—
(i)
offering any shares in or debentures of a company
(whether
it is incorporated in or outside Hong Kong, and
whether or not it has established a place of business in Hong Kong) to
the public for subscription or purchase for cash or other consideration;
or
(ii)
calculated to invite offers by the public to subscribe for or
purchase for cash or other consideration any shares in or debentures of
a company
(whether
it is incorporated in or outside Hong Kong, and
whether or not it has established a place of business in Hong Kong);
(Amended 14 of 2025 s. 103)
(b)
does not include any prospectus, notice, circular, brochure,
advertisement, or other document—
(i)
to the extent that it is a publication falling within section
38B(2); or
(ii)
to the extent that it contains or relates to an offer specified in
Part 1 of the Seventeenth Schedule as read
with the other Parts of that Schedule;
(Replaced 30 of 2004 s. 2)
recognized exchange company
(認可交易所
) means a company recognized under
section 19(2) of the Securities and Futures Ordinance (Cap. 571) as an exchange company for operating a stock
market; (Added 5 of 2002 s. 407)
recognized exchange controller
(認可控制人
) has the same meaning as in
section 1 of Part 1 of Schedule 1 to the Securities and Futures
Ordinance (Cap. 571); (Added 5 of 2002 s. 407)
recognized stock market
(認可證券市場
) has the same meaning as in section 1
of Part 1 of Schedule 1 to the Securities and Futures Ordinance (Cap. 571); (Added 5 of 2002 s. 407)
record
(紀錄
) includes
not only a written record but any record conveying information or instructions by
any other means whatsoever; (Added 28 of 2003 s. 2)
re-domiciled company
(經遷冊公司
) has the meaning given by section
2(1) of the Companies Ordinance (Cap. 622);
(Added 14 of 2025 s. 103)
re-domiciliation date
(遷冊日
) has the meaning given by section
820A of the Companies Ordinance (Cap. 622);
(Added 14 of 2025 s. 103)
re-domiciliation form
(遷冊表格
) has the meaning given by section
820A of the Companies Ordinance (Cap. 622);
(Added 14 of 2025 s. 103)
registered non-Hong Kong company
(註冊非香港公司
) means a non-Hong Kong company that
is registered in the Companies Register as a registered non-Hong Kong company;
(Added 28 of 2012 ss. 912 & 920)
Registrar
(處長
)
means the Registrar of Companies appointed under section 21(1) of the
Companies Ordinance (Cap. 622); (Replaced 6 of 1984 s. 2. Amended 28 of 2012 ss. 912 & 920)
shadow director
(幕後董事
), in relation to a body corporate, means a person in accordance
with whose directions or instructions (excluding advice given in a professional
capacity) the directors, or a majority of the directors, of the body corporate are
accustomed to act; (Replaced 28 of 2012 ss. 912 & 920)
share
(股份
)—(a)
means a share in a company’s share capital; and
(b)
if any of the company’s shares is converted into stock, includes stock;
(Replaced 28 of 2012 ss. 912 & 920)
special resolution
(特別決議
) has the meaning given by section
564 of the Companies Ordinance (Cap. 622);
(Added 28 of 2012 ss. 912 & 920)
specified form
(指明格式
), in relation to a particular provision of this Ordinance, means
the appropriate form specified for the time being under section
2A or
2AB, for the purposes of that provision;
(Added 3 of 1997 s. 3. Amended 22 of 2023 s. 16)
structured product
(結構性產品
) has the meaning given by section 1A of
Part 1 of Schedule 1 to the Securities and Futures Ordinance (Cap. 571); (Added 8 of 2011 s. 17)
the minimum subscription
(最低認購額
) has the meaning assigned to it by
section 42(2); (Added 6 of 1984 s. 2)
the time of the opening of
the subscription lists
(開立認購名單的時間
) has
the meaning assigned to it by section 44A(1); (Added 6 of 1984 s. 2)
unlimited company
(無限公司
) has the meaning given by section 10 of the Companies
Ordinance (Cap. 622) for the purposes of that
Ordinance. (Replaced 28 of 2012 ss. 912 & 920)
(Amended 1 of 1949 s. 22; 10 of 1987 s. 2; 86 of 1992 s. 2; 5 of 2002 s. 407; 30 of 2004 s. 2; 28 of 2012 ss. 912 & 920)
(2)
(Repealed 28 of 2012 ss. 912 & 920)
(3)
A reference in this Ordinance to a body corporate or to a corporation—
(a)
includes—
(i)
a company; and
(ii)
a company incorporated outside Hong Kong; but
(b)
excludes a corporation sole.
(Replaced 14 of 2025 s. 103)
(4)
For the purposes of this Ordinance, a company shall, subject to the provisions
of subsection (6), be deemed to be a subsidiary of another company, if—
(a)
that other company—
(i)
controls the composition of the board of directors of the
first-mentioned company; or
(Amended 6 of 1984 s. 2)
(ii)
controls more than half of the voting rights of the first-mentioned
company; or
(Amended 28 of 2012 ss. 912 & 920)
(iii)
holds more than half of the issued share capital of the first-mentioned
company (excluding any part of it which carries no right to participate
beyond a specified amount in a distribution of either profits or capital);
or
(b)
the first-mentioned company is a subsidiary of any company which is that
other company’s subsidiary.
(Added 80 of 1974 s. 2)
(5)
For the purposes of subsection (4), the composition of a company’s board of
directors shall be deemed to be controlled by another company if that other company
by the exercise of some power exercisable by it, without the consent of any other
person, can appoint or remove all or a majority of the directors, and, for the
purposes of this provision, that other company shall be deemed to have power to make
such an appointment if—
(Amended 12 of 2005 s. 2)
(a)
a person cannot be appointed as a director without the exercise in his
favour by that other company of such a power; or
(b)
a person’s appointment as a director follows necessarily from his being a
director or other officer of that other company.
(Added 80 of 1974 s. 2)
(6)
In determining whether one company is a subsidiary of another company—
(a)
any shares held or power exercisable by that other company in a fiduciary
capacity shall be treated as not held or exercisable by it;
(b)
subject to paragraphs (c) and (d), any shares held or power
exercisable—
(i)
by any person as a nominee for that other company (except where that
other company is concerned only in a fiduciary capacity); or
(ii)
by, or by a nominee for, a subsidiary of that other company, not being
a subsidiary which is concerned only in a fiduciary capacity,
shall be treated as held or exercisable by that other
company;
(c)
any shares held or power exercisable by any person by virtue of the
provisions of any debentures of the first-mentioned company or of a trust deed
for securing any issue of such debentures shall be disregarded; and
(d)
any shares held or power exercisable by, or by a nominee for, that other
company or its subsidiary (not being held or exercisable as mentioned in
paragraph (c)) shall be treated as not held or exercisable by that other company
if the ordinary business of that other company or its subsidiary, as the case
may be, includes the lending of money and the shares are held or power is
exercisable as aforesaid by way of security only for the purposes of a
transaction entered into in the ordinary course of that business.
(Added 80 of 1974 s. 2)
(7)
A reference in this Ordinance to the holding company of a company shall be read
as a reference to a company of which that last-mentioned company is a subsidiary.
(Added 80 of 1974 s. 2)
(8)
In subsections (4), (5), (6) and (7) the expression
company
(公司
) includes any body
corporate or corporation. (Added 4 of 1976 s. 2)
(8A)
(Repealed 28 of 2012 ss. 912 & 920)
(9)
For the avoidance of doubt it is declared that a reference, in relation to any
purpose of this Ordinance, to any form, matter, particular or information specified
by the Registrar means, except where it is provided otherwise, specified by him for
the time being for that purpose.
(Added 3 of 1997 s. 3)
(10)
Any provision of this Ordinance that refers (in whatever words) to—
(a)
the founder members;
(Amended 30 of 2004 s. 2)
(b)
the members or shareholders of a company;
(c)
a majority of members or shareholders of a company; or
(d)
a specified number or percentage of members or shareholders of a
company,
shall, unless the context otherwise requires, apply with necessary
modifications in relation to a company that has only one founder member or that has
only one person as a member or shareholder, as the case may be.
(Added 28 of 2003 s. 2. Amended 30 of 2004 s. 2)
(11)
Any provision of this Ordinance that refers (in whatever words) to—
(a)
the directors of a company;
(b)
the board of directors of a company;
(c)
a majority of the directors of a company; or
(d)
a specified number or percentage of the directors of a company,
shall, unless the context otherwise requires, apply with necessary
modifications in relation to a private company that has only one director.
(Added 28 of 2003 s. 2)
(12)
The reference to a non-Hong Kong company in the definition of specified
corporation in subsection (1) shall, before the commencement of
section 1(1) of Schedule 2 to the Companies (Amendment) Ordinance
2004 (30 of 2004), be deemed to be a reference to an
oversea company as is for the time being defined under this Ordinance.
(Added 30 of 2004 s. 2 and L.N. 81 of 2005)
(13)
A note located in the text of this Ordinance is provided for information only
and has no legislative effect.
(Added 19 of 2024 s. 22)
[cf. 1929 c. 23 s. 380 U.K.]
Editorial Note:
#
Commencement date: 3 March 2014.
2A.
Registrar to specify forms
(1)
The Registrar may specify a form, for use in relation to any purpose of this
Ordinance—
(a)
unless it is provided otherwise in this Ordinance; or
(b)
except where a form for that purpose may be or is prescribed,
and any such form may contain any particulars ancillary or incidental to that
purpose.
(2)
In exercising, as regards any purpose of this Ordinance, the power conferred on
him by subsection (1), the Registrar may, if he thinks fit, specify 2 or more
different forms to be used in respect of that purpose, in different
circumstances.
(3)
(Repealed 28 of 2003 s. 3)
(Added 3 of 1997 s. 4)
(Format changes—E.R. 1 of 2014)
2AB.
Official Receiver may specify forms
(1)
The Official Receiver may specify a form for use in relation to any purpose of
this Ordinance.
(2)
A form specified under subsection (1) for use in relation to a purpose may
contain a requirement for the provision of any particulars ancillary or incidental
to that purpose.
(3)
Despite subsection (1), the Official Receiver may not specify a form for use in
relation to a purpose if—
(a)
this Ordinance provides otherwise;
(b)
this Ordinance requires, or provides for, the use of a prescribed form
(whether or not a form is prescribed) for that purpose; or
(c)
a form is prescribed for that purpose.
(4)
In exercising, as regards any purpose of this Ordinance, the power conferred
under subsection (1), the Official Receiver may, if the Official Receiver thinks
fit, specify more than one form to be used in relation to that purpose, whether as
alternatives or to provide for different circumstances.
(5)
In subsection (3)—
prescribed
(訂明
) means
prescribed by—(a)
general rules;
(b)
regulations made under section 168S(2); or
(c)
regulations made under section 359A.
(Added 22 of 2023 s. 18)
2AC.
Official Receiver may specify requirements relating to documents
(1)
The Official Receiver may, in relation to any document required or authorized to
be sent to the Official Receiver under this Ordinance—
(a)
specify requirements for the purpose of enabling the Official Receiver to
make copies or image records of the document and to keep records of the
information contained in it;
(b)
specify requirements as to the authentication of the document;
and
(c)
specify requirements as to the manner of sending the document.
(2)
For the purposes of subsection (1), the Official Receiver may specify different
requirements for different documents or classes of documents, or for different
circumstances.
(3)
For the purposes of subsection (1)(b), the Official Receiver
may—
(a)
require the document to be authenticated by a particular person or a person
of a particular description;
(b)
specify the means of authentication; and
(c)
require the document to contain, or to be accompanied by, the name or
registration number, or both, of the company to which it relates.
(4)
For the purposes of subsection (1)(c), the Official Receiver
may—
(a)
require the document to be in hard copy form, in electronic form or in any
other form;
(b)
require the document to be sent by post or by any other means;
(c)
specify requirements as to the address to which the document is to be sent;
and
(d)
in the case of a document to be sent by electronic means—specify
requirements as to the hardware and software to be used and the technical
specifications.
(5)
This section does not empower the Official Receiver—
(a)
to require a document to be sent to the Official Receiver only by
electronic means; or
(b)
to specify any requirement that is inconsistent with any requirement
prescribed by an Ordinance as to—
(i)
the authentication of the document; and
(ii)
the manner of sending the document to the Official Receiver.
(6)
Requirements specified under this section are not subsidiary
legislation.
(7)
For the purposes of this section—
(a)
a document is sent by electronic means if it is sent in the form of an
electronic record to an information system; and
(b)
a reference to sending a document includes any other expression that
signifies conveying a document.
(8)
In this section—
electronic record
(電子紀錄
)
means a record generated in digital form by an information system, which can
be—(a)
transmitted within an information system or from one information system
to another; and
(b)
stored in an information system or other medium;
in electronic form
(電子形式
) means in the form of an electronic
record;information
(資訊、資料
) includes data, text, images, sound codes, computer programmes,
software and databases, and any combination of them;information system
(資訊系統
)
means a system that—(a)
processes information;
(b)
records information;
(c)
can be used to cause information to be recorded, stored or otherwise
processed in other information systems (wherever situated); and
(d)
can be used to retrieve information, whether the information is
recorded or stored in the system itself or in other information systems
(wherever situated);
in hard copy form
(印本形式
) means in a paper form or similar form capable of being read.(Added 22 of 2023 s. 18)
2AD.
Circumstances in which documents are to be regarded as not having been
sent
(1)
This section applies if the Official Receiver is of the opinion that, in
relation to a document sent to the Official Receiver—
(a)
the requirements of this Ordinance regarding the form of the document
(including a requirement contained in the form for the provision of any
particulars) are not complied with;
(b)
the requirements specified in relation to the document under section
2AC are not complied with; or
(c)
the requirements otherwise prescribed in relation to the document are not
complied with.
(2)
The document is to be regarded as not having been sent to the Official Receiver
in satisfaction of the provision of this Ordinance that requires or authorizes the
document to be sent to the Official Receiver.
(3)
For the purposes of this section, a reference to sending a document includes
any other expression that signifies conveying a document.
(4)
In subsection (1)—
prescribed
(訂明
) means
prescribed by—(a)
this Ordinance;
(b)
general rules;
(c)
regulations made under section 168S(2); or
(d)
regulations made under section 359A.
(Added 22 of 2023 s. 18)
2B.
Construction of references to parent company, etc.
(1)
A reference in this Ordinance to parent company, parent undertaking or
subsidiary undertaking shall be construed in accordance with the Twenty-third
Schedule.
(2)
A reference in a provision specified under subsection (3) for the purposes of
this subsection—
(a)
to a holding company shall be deemed to include a parent company;
(b)
to a subsidiary or subsidiary company shall be deemed to include a
subsidiary undertaking; and
(c)
to shares or an undertaking shall be construed in accordance with the
Twenty-third Schedule.
(3)
The provisions specified for the purposes of subsection (2) are the Third
Schedule and the Fourth Schedule.
(Amended 28 of 2012 ss. 912 & 920)
(4)
The Secretary for Financial Services and the Treasury may, by notice published
in the Gazette, amend subsection (3).
2C.
Specified means
(1)
For the purposes of this Ordinance, a notice, an order or a matter is published
or given by the specified means if it is published in a medium specified in
Schedule 27.
(2)
The Secretary for Financial Services and the Treasury may, by notice published
in the Gazette—
(a)
add a medium to Schedule 27;
(b)
delete a medium from that Schedule; or
(c)
otherwise amend that Schedule.
(3)
In exercising the power under subsection (2)(a), the Secretary for
Financial Services and the Treasury may add more than one medium.
(Added 22 of 2023 s. 56)
3.
(Repealed 6 of 1984 s. 3)
4.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
5.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
5A.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
5B.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
5C.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
6.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
7.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
8.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
9.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
10.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
11.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
12.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
13.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
14.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
14A.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
15.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
16.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
17.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
18.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
18A.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
19.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
20.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
20A.
(Repealed 60 of 1990 s. 4)
21.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
22.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
22A.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
22AA.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
22B.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
22C.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
23.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
24.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
25.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
25A.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
26.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
27.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
28.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
28A.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
29.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
30.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note:
This section belonged to the previous Part I, which was repealed by 28 of 2012 ss. 912 & 920.
(Subheading repealed 28 of 2003 s. 11)
31.
(Repealed 28 of 2003 s. 12)
32.
(Repealed 28 of 2012 ss. 912 & 920)
32A.
(Repealed 28 of 2012 ss. 912 & 920)
33.
(Repealed 28 of 2012 ss. 912 & 920)
34.
(Repealed 28 of 2012 ss. 912 & 920)
35.
(Repealed 28 of 2012 ss. 912 & 920)
36.
(Repealed 28 of 2012 ss. 912 & 920)
Editorial Note：
# Sections 4
to 36 belonged to the previous Part I, which was repealed by 28 of
2012 ss. 912 & 920.
37.
Dating of prospectus
A prospectus issued by or on behalf of a company shall be dated, and that date shall, unless the contrary is proved, be taken as the date of publication of the prospectus.
(Amended 78 of 1972 s. 4)
[cf. 1929 c. 23 s. 34 U.K.]
38.
Specific requirements as to particulars in prospectus
(1)
Subject to the provisions of section 38A, every prospectus issued by or on behalf of a company must either be in the English language and contain a Chinese translation or be in the Chinese language and contain an English translation, and must state the matters specified in Part I of the Third Schedule and set out the reports specified in Part II of that Schedule, and the said Parts I and II shall have effect subject to the provisions contained in Part III of the said Schedule.
(Replaced 78 of 1972 s. 5. Amended 83 of 1995 s. 5)
(1A)
Every prospectus to which subsection (1) applies must contain a statement specified in Part 1 of the Eighteenth Schedule.
(1B)
If any prospectus is issued which does not comply with or contravenes the requirements of subsections (1) and (1A), the company and every person who is knowingly a party to the issue thereof shall be liable to a fine.
(Added 78 of 1972 s. 5. Amended 7 of 1990 s. 2)
(2)
A condition requiring or binding an applicant for shares in or debentures of a company to waive compliance with any requirement of this section, or purporting to affect him with notice of any contract, document, or matter not specifically referred to in the prospectus, shall be void.
(3)
Subject to the provisions of section 38A, it shall not be lawful to issue any form of application for shares in or debentures of a company unless the form is issued with a prospectus which complies with the requirements of this section:
(Amended 78 of 1972 s. 5)
Provided that this subsection shall not apply if it is shown that the form of application was issued—
(Amended 30 of 2004 s. 2)
(a)
in connexion with a bona fide invitation to a person to enter into an underwriting agreement with respect to the shares or debentures;
(b)
in relation to shares or debentures which were not offered to the public; or
(c)
in connexion with an offer specified in Part 1 of the Seventeenth Schedule as read with the other Parts of that Schedule.
(Added 30 of 2004 s. 2)
If any person acts in contravention of the provisions of this subsection, he shall be liable to a fine.
(3A)
This section shall not prevent the publication of the English version only of a prospectus in an English language newspaper or the Chinese version only in a Chinese language newspaper, nor the publication in such newspaper together with the prospectus of a form of application relating thereto.
(Added 6 of 1984 s. 22)
(4)
In the event of non-compliance with or contravention of any of the requirements
of this section, a director or other person responsible for the prospectus shall not
incur any liability by reason of the non-compliance or contravention, if—
(a)
as regards any matter not disclosed, he proves that he was not cognisant
thereof; or
(b)
he proves that the non-compliance or contravention arose from an honest
mistake of fact on his part; or
(c)
the non-compliance or contravention was in respect of matters which in
the opinion of the court dealing with the case were immaterial or was
otherwise such as ought, in the opinion of that court, having regard to all
the circumstances of the case, reasonably to be excused:
Provided that, in the event of
failure to include in a prospectus a statement with respect to the matters specified
in paragraph 19 of Part I of the Third Schedule, no director
or other person shall incur any liability in respect of the failure unless it be
proved that he had knowledge of the matters not disclosed.
(Amended 78 of 1972 s. 5)
(5)
This section shall not apply—
(a)
to the issue to existing members or debenture holders of a company of a prospectus or form of application relating to shares in or debentures of the company, whether an applicant for shares or debentures will or will not have the right to renounce in favour of other persons; or
(b)
to the issue of a prospectus or form of application relating to shares or debentures which are or are to be in all respects uniform with shares or debentures previously issued and for the time being listed on a recognized stock market;
but, subject as aforesaid, this section shall apply to a prospectus or a form of application whether issued on the formation of a company or subsequently.
(Replaced 78 of 1972 s. 5)
(6)
Nothing in this section shall limit or diminish any liability which any person
may incur under—
(Amended 28 of 2012 ss. 912 & 920)
(a)
the general law;
(b)
the provisions of the pre-amended Ordinance having a continuing effect
under Schedule 11 to the Companies Ordinance (Cap. 622) or by virtue of section 23 of the Interpretation
and General Clauses Ordinance (Cap. 1);
(c)
this Ordinance apart from this section; or
(d)
(7)
It is hereby declared that the provisions of the Third Schedule applied by this section are also applied to a guarantor corporation in relation to an offer or invitation to the public to subscribe for or purchase debentures of a company.
(Replaced 30 of 2004 s. 2)
(8)
In subsection (7),
guarantor corporation
(提供擔保的法團
), in relation to an offer or invitation to the public to subscribe for or purchase debentures of a company, means a corporation that guarantees or agrees to guarantee—(a)
the repayment of any money received or to be received by the company in response to the offer or invitation;
(b)
any other obligations of the company under or in respect of the debentures; or
(c)
in favour of the company any amount—
(i)
to which the company is entitled; and
(ii)
receipt of which, as stated in the prospectus concerned, is intended to enable the company to wholly or partly discharge any of its obligations under or in respect of the debentures.
(Added 30 of 2004 s. 2)
[cf. 1929 c. 23 s. 35 U.K.]
38A.
Exemption of certain persons and prospectuses from compliance with certain requirements
(1)
Where it is proposed to offer any shares in or debentures of a company to the public by a prospectus or class of prospectuses issued generally, there may, on the request of the applicant, and subject to such conditions (if any) as the Commission thinks fit, be issued by the Commission a certificate of exemption from compliance with any or all of the requirements of the relevant provisions if, having regard to the circumstances, the Commission considers that the exemption will not prejudice the interest of the investing public and compliance with any or all of those requirements—
(a)
would be irrelevant or unduly burdensome; or
(b)
is otherwise unnecessary or inappropriate.
(Replaced 30 of 2004 s. 2)
(2)
Whether or not a request referred to in subsection (1) has been made, the Commission may, by notice published in the Gazette, and subject to such conditions (if any) as the Commission thinks fit and specified in the notice, exempt—
(a)
any class of companies; or
(b)
any class of prospectuses issued by companies,
from any or all of the requirements of the relevant provisions if, having regard to the circumstances, the Commission considers that the exemption will not prejudice the interest of the investing public and compliance with any or all of those requirements, in the case of that class of companies or prospectuses, as the case may be—
(c)
would be irrelevant or unduly burdensome; or
(d)
is otherwise unnecessary or inappropriate.
(Replaced 30 of 2004 s. 2)
(3)
Where exemption from compliance with section 38(1) and (3) in relation to the requirements of the Third Schedule is granted under this section, whether by the issue of a certificate of exemption or by a notice in the Gazette, the certificate or notice, as the case may be, shall be expressed to have effect with regard to all of the requirements of the Third Schedule or to such of them as are specified in the certificate or notice, as the case may be.
(4)
In this section,
relevant provisions
(有關條文
) means any of the provisions of—(a)
section 38(1), (1A), (3) or (7), 38D(3) or (4), 42(1) or (4), 44A(1), (2) or (6) or 44B(1) or (2); or
(b)
(5)
The Commission may, by order published in the Gazette, amend subsection (4).
(Added 30 of 2004 s. 2)
(6)
The Commission shall publish, by the use of the Internet, such particulars of exemptions granted under subsection (1) as it considers appropriate.
(Added 30 of 2004 s. 2. Amended 9 of 2012 s. 50)
(7)
Where the Commission proposes to issue—
(a)
a notice of exemption under subsection (2); or
(b)
an amendment order under subsection (5),
it shall publish a draft of the proposed notice or order, in such manner as it considers appropriate, for the purpose of inviting representations on the proposed notice or order by the public.
(Added 30 of 2004 s. 2)
(8)
Where the Commission issues a notice or order mentioned in subsection (7) after a draft is published under that subsection in relation to the notice or order, it shall—
(a)
publish, in such manner as it considers appropriate, an account setting out in general terms—
(i)
the representations made on the draft; and
(ii)
the response of the Commission to the representations; and
(b)
where the notice or order is issued with modifications which in the opinion of the Commission result in the notice or order being significantly different from the draft, publish, in such manner as it considers appropriate, details of the difference.
(Added 30 of 2004 s. 2)
(9)
Subsections (7) and (8) do not apply if the Commission considers, in the circumstances of the case, that—
(a)
it is unnecessary or inappropriate that such subsections should apply; or
(b)
any delay involved in complying with such subsections would not be—
(i)
in the interest of the investing public; or
(ii)
in the public interest.
(Added 30 of 2004 s. 2)
(Replaced 86 of 1992 s. 3)
38AA.
Exemption for structured products
If it is proposed to offer any shares in or debentures of a company that are structured products, the following provisions do not apply in relation to the offer—
(a)
(b)
the Third Schedule; and
(c)
the Seventeenth to the Twenty-second Schedules.
(Added 8 of 2011 s. 18)
38B.
Advertisements concerning prospectuses
(1)
Subject to subsection (2), it shall not be lawful for any person to publish or
cause to be published—
(a)
by way of advertisement any extract from or abridged version of a
prospectus; or
(b)
an advertisement in relation to a prospectus or proposed
prospectus,
whether in the English or Chinese language or in any other language in
relation to shares or debentures of
a
company (whether it is incorporated in or outside Hong Kong, and whether or not it
has established a place of business in Hong Kong).
(Replaced 30 of 2004 s. 2. Amended 14 of 2025 s. 104)
(2)
Notwithstanding subsection (1)—
(a)
the publication of an extract from or abridged version of a prospectus
which is in accordance with such requirements as may have been specified by the
Commission under subsection (2A)(a);
(Replaced 86 of 1992 s. 4)
(b)
the publication of the English version only of a prospectus in an English
language newspaper or the Chinese version only in a Chinese language
newspaper;
(c)
the publication of an advertisement, invitation or document which has been
authorized by the Commission under section 105 of the Securities and
Futures Ordinance (Cap. 571);
(Added 86 of 1992 s. 4. Amended 5 of 2002 s. 407)
(d)
the publication of an extract from or abridged version of a prospectus
which is in accordance with such requirements as may have been authorized by the
Commission under subsection (2A)(b) in that particular case;
(Added 86 of 1992 s. 4)
(e)
the publication of an advertisement which—
(i)
complies with the requirements of the Nineteenth Schedule
applicable to the advertisement; and
(ii)
contains such information as is permitted under subsection (2AA);
or
(Added 30 of 2004 s. 2)
(f)
the publication of an advertisement—
(i)
in relation to a company which is a collective investment scheme
authorized under section 104(1) of the Securities and Futures
Ordinance (Cap. 571); and
(ii)
which has been authorized under section 105 of the
Securities and Futures Ordinance (Cap.
571),
(Added 30 of 2004 s. 2)
shall not contravene this
section.
(Amended 30 of 2004 s. 2)
(2AA)
For the purposes of subsection (2)(e)(ii), the Commission may, on the
request of the applicant, and in accordance with the guidelines published under
section 38BA, permit an advertisement to contain such information as
is specified in the permission and subject to such conditions as are specified in
the permission.
(Added 30 of 2004 s. 2)
(2A)
The Commission may—
(a)
by notice in the Gazette, specify requirements applicable to the form and
manner of, and any other matters relating to, publication of an extract from or
abridged version of a prospectus, or any class of prospectuses;
(b)
in any particular case, specify requirements applicable to and authorize
the form and manner of, and any other matters relating to, publication of any
extract from or abridged version of a prospectus.
(Added 86 of 1992 s. 4. Amended 30 of 2004 s. 2)
(2B)
A prospectus referred to in subsection (2A) means a prospectus relating to
shares in or debentures of
a
company (whether it is incorporated in or outside Hong Kong, and whether or not it
has established a place of business in Hong Kong).
(Added 86 of 1992 s. 4. Amended 14 of 2025 s. 104)
(3)
If any person acts in contravention of subsection (1), he shall be liable to a
fine.
(Amended 7 of 1990 s. 2)
(Added 78 of 1972 s. 6)
38BA.
Commission may publish guidelines relating to publications falling within section 38B(2)
(1)
The Commission may prepare and publish guidelines in relation to the form and manner of, and any other matters relating to, publications falling within section 38B(2).
(2)
Guidelines published under subsection (1) are not subsidiary legislation.
(Added 30 of 2004 s. 2)
38C.
Expert’s consent to issue of prospectus containing statement by him
(1)
A prospectus inviting persons to subscribe for shares in or debentures of a company and including a statement purporting to be made by an expert shall not be issued unless—
(a)
he has given and has not, before delivery of a copy of the prospectus for registration, withdrawn his written consent to the issue thereof with the statement included in the form and context in which it is included; and
(b)
a statement that he has given and has not withdrawn his consent as aforesaid appears in the prospectus.
(2)
If any prospectus is issued in contravention of this section the company and every person who is knowingly a party to the issue thereof shall be liable to a fine.
(Amended 7 of 1990 s. 2)
(3)
In this section the expression
expert
(專家
) includes engineer, valuer, accountant, and any other person whose profession gives authority to a statement made by him.(Added 78 of 1972 s. 6)
[cf. 1948 c. 38 s. 40 U.K.]
38D.
Registration of prospectus
(1)
No prospectus shall be issued by or on behalf of a company unless the prospectus complies with the requirements of this Ordinance and, on or before the date of its publication, its registration has been authorized under this section and a copy thereof has been registered by the Registrar.
(2)
Every prospectus shall—
(a)
on the face of it, state that a copy has been registered as required by this section and immediately after such statement—
(i)
state that neither the Commission nor the Registrar takes any responsibility as to the contents of the prospectus;
(ii)
where the prospectus is or is to be authorized for issue by a recognized exchange company pursuant to a transfer order made under section 25 of the Securities and Futures Ordinance (Cap. 571), state that neither the Commission nor the recognized exchange company nor the Registrar takes any responsibility as to the contents of the prospectus; or
(iii)
where the prospectus is or is to be authorized for issue by a recognized exchange controller pursuant to a transfer order made under section 68 of that Ordinance, state that neither the Commission nor the recognized exchange controller nor the Registrar takes any responsibility as to the contents of the prospectus;
(Replaced 5 of 2002 s. 407)
(b)
on the face of it, specify or refer to statements included in the prospectus which specify, any documents required by this section to be endorsed on or attached to the copy so registered; and
(c)
conform with such requirements as are prescribed by the Chief Executive in
Council and the requirements set out in subsection (7A).
(Amended 23 of 1999 s. 3; 28 of 2012 ss. 912 & 920)
(3)
An application for authorization for registration of a prospectus under this section shall be made in writing to the Commission and there shall be delivered to the Commission together with the application a copy of the prospectus proposed to be registered which has been signed by every person who is named therein as a director or proposed director of the company or by his agent authorized in writing and having endorsed thereon or attached thereto—
(a)
any consent to the issue of the prospectus required by section 38C from any person as an expert; and
(b)
in the case of a prospectus issued generally, also—
(i)
a copy of any contract required by paragraph 17 of the Third Schedule to be stated in the prospectus or, in the case of a contract not reduced into writing, a memorandum giving full particulars thereof or, if in the case of a prospectus exempted under section 38A from compliance with the requirements of section 38(1), a contract or a copy thereof or a memorandum of a contract is required by the Commission to be available for inspection in connection with the request made under section 38A(1), a copy or, as the case may be, a memorandum of that contract;
(ii)
where the prospectus offers shares in the company for sale to the public, a list of the names, addresses and descriptions of the vendor or vendors of the shares; and
(iii)
where the persons making any report required by Part II of the Third Schedule have made therein, or have, without giving the reasons, indicated therein, any such adjustments as are mentioned in paragraph 42 of that Schedule, a written statement signed by those persons setting out the adjustments and giving the reasons therefor.
(4)
The references in subsection (3)(b)(i) to the copy of a contract required thereby to be endorsed on or attached to a copy of the prospectus shall, in the case of a contract wholly or partly in a language other than English or Chinese, be taken as references to a copy of a translation of the contract in either language or a copy embodying a translation in English or Chinese of the parts not in either language, as the case may be, being a translation certified in the prescribed manner under subsection (10) to be a correct translation.
(Amended 83 of 1995 s. 7; 30 of 2004 s. 2)
(5)
The Commission may—
(a)
authorize the registration by the Registrar, of a prospectus to which this section applies and where the Commission so authorizes, the Commission shall issue a certificate—
(i)
certifying that the Commission has done so; and
(ii)
specifying the documents which are required to be endorsed on or attached to the copy of the prospectus to be registered; or
(b)
refuse to authorize such registration.
(6)
The Commission shall not authorize the registration of a prospectus which relates to an intended company.
(7)
The Registrar—
(a)
shall not register a prospectus under this section unless—
(i)
it is dated and the copy thereof to be registered has been signed in the manner required by this section;
(ii)
it is accompanied by a certificate issued under subsection (5);
(iii)
it has endorsed thereon or attached thereto all the documents specified
in the certificate issued under subsection (5);
(Amended 28 of 2012 ss. 912 & 920)
(iv)
it conforms with such requirements as are prescribed by the Chief
Executive in Council and the requirements set out in subsection (7A);
and
(Amended 23 of 1999 s. 3; 28 of 2012 ss. 912 & 920)
(v)
it is accompanied by any fee that is payable, in respect of the
registration, under a regulation made under section 26 of the
Companies Ordinance (Cap. 622); and
(Added 28 of 2012 ss. 912 & 920)
(b)
shall register a prospectus if subparagraphs (i), (ii), (iii), (iv) and (v)
of paragraph (a) are complied with in respect of that prospectus.
(Amended 28 of 2012 ss. 912 & 920)
(7A)
The following are the requirements set out for the purposes of subsections (2)(c) and (7)(a)(iv)—
(a)
any requirement that the Registrar may specify, by notice in the Gazette, in relation to font size of prospectuses for the purposes of this section;
(b)
any other requirements that the Registrar may specify for the purpose of—
(i)
ensuring that documents of the same kind are of a standard form; and
(ii)
enabling the Registrar to make copies or image records of documents and
to make and keep records of the information contained in them.
(Added 28 of 2012 ss. 912 & 920)
(7B)
For the purposes of subsection (7A)(b), the Registrar may specify
different requirements for different documents or classes of documents.
(Added 28 of 2012 ss. 912 & 920)
(8)
If a prospectus is issued without having endorsed thereon or attached thereto the required documents or without a copy thereof which has the required documents endorsed or attached having been registered under this section by the Registrar, the company, and every person who is knowingly a party to the issue of the prospectus, shall be liable to a fine and, for continued default, to a daily default fine from the date of the issue of the prospectus until a copy thereof is so registered or until the required documents are endorsed or attached, as the case may be.
(9)
Any person aggrieved by the refusal to authorize the registration of a prospectus under this section may appeal to the court and the court may either dismiss the appeal or order that the registration of the prospectus be authorized by the Commission under this section.
(10)
A translation mentioned in subsection (4) shall be—
(a)
certified by the person making the translation as a correct translation; and
(b)
deemed to be certified in the prescribed manner if the person making the translation has been certified, by the appropriate person mentioned in subparagraph (i) or (ii), as a person believed by that appropriate person to be competent to translate it into the English or Chinese language, as the case may be, that is to say—
(i)
if the translation be made outside Hong Kong—
(A)
a notary public in the place where the translation is made;
(B)
such other person as may be specified by the Commission; or
(C)
such other person belonging to a class of persons specified by the Commission, by notice published in the Gazette, for the purposes of this paragraph;
(ii)
if the translation be made in Hong Kong—
(A)
a notary public in Hong Kong;
(B)
a solicitor of the High Court of Hong Kong;
(C)
such other person as may be specified by the Commission; or
(D)
such other person belonging to a class of persons specified by the Commission, by notice published in the Gazette, for the purposes of this paragraph.
(Added 30 of 2004 s. 2)
(11)
A notice published under subsection (10)(b)(i)(C) or (ii)(D) is not subsidiary legislation.
(Added 30 of 2004 s. 2)
(Replaced 86 of 1992 s. 5)
39.
(Repealed 6 of 1984 s. 23)
39A.
Amendment of prospectus consisting of one document
(1)
A prospectus—
(a)
consisting of one document; and
(b)
to which the provisions of this Part are applicable,
may only be amended in accordance with the provisions of Part 1 of the Twentieth Schedule.
(2)
The provisions of Part 1 of the Twentieth Schedule may alter the operation of a provision of this Part in relation to any prospectus, or class of prospectuses, which may be amended under subsection (1).
(3)
If any company contravenes subsection (1), the company and every officer of the company who is in default shall be liable to a fine.
(4)
For the avoidance of doubt, it is hereby declared that this section and Part 1 of the Twentieth Schedule do not apply to a prospectus to which section 39B applies.
(Added 30 of 2004 s. 2)
39B.
Prospectus may consist of more than one document, etc.
(1)
A prospectus to which the provisions of this Part are applicable may consist of more than one document in accordance with the provisions of Part 1 of the Twenty-first Schedule.
(2)
A prospectus to which subsection (1) applies may only be amended in accordance with the provisions of Part 1 of the Twenty-first Schedule.
(3)
The provisions of Part 1 of the Twenty-first Schedule may alter the operation of a provision of this Part in relation to any prospectus, or class of prospectuses, which falls within subsection (1) or which may be amended under subsection (2).
(4)
If any company contravenes subsection (2), the company and every officer of the company who is in default shall be liable to a fine.
(Added 30 of 2004 s. 2)
39C.
Submission of certified copies
Where any document (howsoever described), other than a prospectus, is required under any of the provisions of sections 37 to 44B inclusive to be submitted to the Registrar by a company, the requirement shall be deemed to be satisfied by the submission to the Registrar of a copy of the document certified—
(a)
to be a true copy of the document; and
(b)
by—
(i)
a director or company secretary of the company or an agent of the director or company secretary authorized in writing for the purpose by the director or company secretary;
(Amended 28 of 2012 ss. 912 & 920)
(ii)
a solicitor within the meaning of section 2(1) of the Legal Practitioners Ordinance (Cap. 159) or a certified public accountant within the meaning of section 2 of the Professional Accountants Ordinance (Cap. 50); or
(Amended 10 of 2005 s. 223)
(iii)
a notary public within the meaning of section 2(1) of the Legal Practitioners Ordinance (Cap. 159).
(Added 30 of 2004 s. 2)
40.
Civil liability for misstatements in prospectus
(1)
Subject to the provisions of this section, where a prospectus invites persons to
subscribe for shares in or debentures of a company, the following persons shall be
liable to pay compensation to all persons who subscribe for any shares or debentures
on the faith of the prospectus for the loss or damage they may have sustained by
reason of any untrue statement included therein, that is to say—
(a)
every person who is a director of the company at the time of the issue of
the prospectus;
(b)
every person who has authorized himself to be named and is named in the
prospectus as a director or as having agreed to become a director either
immediately or after an interval of time;
(c)
every person being a promoter of the company; and
(d)
every person who has authorized the issue of the prospectus:
Provided that where under
section 38C the consent of a person is required to the issue of a
prospectus and he has given that consent, he shall not by reason of his having given
it be liable under this subsection as a person who has authorized the issue of the
prospectus except in respect of an untrue statement purporting to be made by him as
an expert.
(1A)
Subsection (1)(d) shall not apply—
(a)
to the Commission;
(b)
where the relevant prospectus is authorized by a recognized exchange company pursuant to a transfer order made under section 25 of the Securities and Futures Ordinance (Cap. 571), to the Commission or the recognized exchange company; or
(c)
where the relevant prospectus is authorized by a recognized exchange controller pursuant to a transfer order made under section 68 of that Ordinance, to the Commission or the recognized exchange controller.
(Replaced 5 of 2002 s. 407)
(2)
No person shall be liable under subsection (1) if he proves—
(a)
that, having consented to become a director of the company, he withdrew his consent before the issue of
the prospectus, and that it was issued without his authority or consent;
or
(b)
that the prospectus was issued without his knowledge or consent, and that
on becoming aware of its issue he forthwith gave reasonable public notice that
it was issued without his knowledge or consent; or
(c)
that, after the issue of the prospectus and before allotment thereunder,
he, on becoming aware of any untrue statement therein, withdrew his consent
thereto and gave reasonable public notice of the withdrawal and of the reason
therefor; or
(d)
that—
(i)
as regards every untrue statement not purporting to be made on the
authority of an expert or of a public official document or statement, he had
reasonable ground to believe, and did up to the time of the allotment of the
shares or debentures, as the case may be, believe, that the statement was
true; and
(ii)
as regards every untrue statement purporting to be a statement by an
expert or contained in what purports to be a copy of or extract from a
report or valuation of an expert, it fairly represented the statement, or
was a correct and fair copy of or extract from the report or valuation, and
he had reasonable ground to believe and did up to the time of the issue of
the prospectus believe that the person making the statement was competent to
make it and that person had given the consent required by section
38C to the issue of the prospectus and had not withdrawn that
consent before delivery of a copy of the prospectus for registration or, to
the defendant’s knowledge, before allotment thereunder; and
(iii)
as regards every untrue statement purporting to be a statement made
by an official person or contained in what purports to be a copy of or
extract from a public official document, it was a correct and fair
representation of the statement or copy of or extract from the
document:
Provided that this subsection
shall not apply in the case of a person liable, by reason of his having given a
consent required of him by the said section 38C, as a person who has
authorized the issue of the prospectus in respect of an untrue statement purporting
to be made by him as an expert.
(3)
A person who, apart from this subsection would under subsection (1) be liable, by reason of his having given a consent required of him by section 38C, as a person who has authorized the issue of a prospectus in respect of an untrue statement purporting to be made by him as an expert, shall not be so liable if he proves—
(a)
that, having given his consent under the said section 38C to the issue of the prospectus, he withdrew it in writing before delivery of a copy of the prospectus for registration; or
(b)
that, after delivery of a copy of the prospectus for registration and before allotment thereunder, he, on becoming aware of the untrue statement, withdrew his consent in writing and gave reasonable public notice of the withdrawal, and of the reason therefor; or
(c)
that he was competent to make the statement and that he had reasonable ground to believe and did up to the time of the allotment of the shares or debentures, as the case may be, believe that the statement was true.
(4)
Where—
(a)
the prospectus contains the name of a person as a director of the company, or as having agreed to become a director thereof, and he has not consented to become a director, or has withdrawn his consent before the issue of the prospectus, and has not authorized or consented to the issue thereof; or
(b)
the consent of a person is required under section 38C to the issue of the prospectus and he either has not given that consent or has withdrawn it before the issue of the prospectus,
the directors of the company, except any without whose knowledge or consent the prospectus was issued, and any other person who authorized the issue thereof shall be liable to indemnify the person named as aforesaid or whose consent was required as aforesaid, as the case may be, against all damages, costs and expenses to which he may be made liable by reason of his name having been inserted in the prospectus or of the inclusion therein of a statement purporting to be made by him as an expert, as the case may be, or in defending himself against any action or legal proceeding brought against him in respect thereof:
Provided that a person shall not be deemed for the purposes of this subsection to have authorized the issue of a prospectus by reason only of his having given the consent required by section 38C to the inclusion therein of a statement purporting to be made by him as an expert.
(5)
For the purposes of this section—
(a)
the expression
promoter
(發起人
) means a promoter who was a party to the preparation of the prospectus, or of the portion thereof containing the untrue statement, but does not include any person by reason of his acting in a professional capacity for persons engaged in procuring the formation of the company; and(b)
(6)
This section shall apply to a publication falling within section 38B(2) as if the publication were a prospectus.
(Added 30 of 2004 s. 2)
(7)
It is hereby declared that, for the purposes of this section,
persons who subscribe for any shares or debentures
(任何股份或債權證的認購人
) includes persons specified in the Twenty-second Schedule. (Added 30 of 2004 s. 2)
(Replaced 78 of 1972 s. 7)
[cf. 1948 c. 38 s. 43 U.K.]
40A.
Criminal liability for misstatements in prospectus
(1)
Where a prospectus issued after the
commencement#
of the Companies (Amendment) Ordinance 1972 (78 of
1972) includes any untrue statements, any person who authorized the issue
of the prospectus shall be liable to imprisonment and a fine, unless he proves
either that the statement was immaterial or that he had reasonable grounds to
believe and did up to the time of the issue of the prospectus believe that the
statement was true.
(Amended 7 of 1990 s. 2)
(2)
A person shall not be deemed for the purposes of this section to have authorized the issue of a prospectus by reason only of his having given the consent required by section 38C to the inclusion therein of a statement purporting to be made by him as an expert.
(3)
Subsection (1) shall not apply—
(a)
to the Commission;
(b)
where the relevant prospectus is authorized by a recognized exchange company pursuant to a transfer order made under section 25 of the Securities and Futures Ordinance (Cap. 571), to the Commission or the recognized exchange company; or
(c)
where the relevant prospectus is authorized by a recognized exchange controller pursuant to a transfer order made under section 68 of that Ordinance, to the Commission or the recognized exchange controller.
(Replaced 5 of 2002 s. 407)
(4)
This section shall apply to a publication falling within section 38B(2) as if the publication were a prospectus.
(Added 30 of 2004 s. 2)
(Added 78 of 1972 s. 8)
[cf. 1948 c. 38 s. 44 U.K.]
Editorial Note:
#
Commencement date: 1 March 1973.
40B.
Right to damages and compensation not affected
A person is not debarred from obtaining damages or other compensation from a company by reason only of—
(a)
his holding or having held shares in the company; or
(b)
his having any right—
(i)
to apply or subscribe for shares; or
(ii)
to be included in the register of the company in respect of shares.
(Added 3 of 1997 s. 10)
[cf. 1985 c. 6 s. 111A U.K.]
41.
Document containing offer of shares or debentures for sale to be deemed prospectus
(1)
Where a company allots or agrees to allot any shares in or debentures of the company with a view to all or any of those shares or debentures being offered for sale to the public, any document by which the offer for sale to the public is made shall for all purposes be deemed to be a prospectus issued by the company, and all enactments and rules of law as to the contents of prospectuses and to liability in respect of statements in and omissions from prospectuses, or otherwise relating to prospectuses, shall apply and have effect accordingly, as if the shares or debentures had been offered to the public for subscription and as if persons accepting the offer in respect of any shares or debentures were subscribers for those shares or debentures, but without prejudice to the liability, if any, of the persons by whom the offer is made, in respect of mis-statements contained in the document or otherwise in respect thereof.
(2)
For the purposes of this Ordinance, it shall, unless the contrary is proved, be evidence that an allotment of, or an agreement to allot, shares or debentures was made with a view to the shares or debentures being offered for sale to the public if it is shown—
(a)
that an offer of the shares or debentures or of any of them for sale to the public was made within 6 months after the allotment or agreement to allot; or
(b)
that at the date when the offer was made the whole consideration to be received by the company in respect of the shares or debentures had not been so received.
(3)
Section 38D as applied by this section shall have effect as though the persons making the offer were persons named in a prospectus as directors of a company, and section 38 as applied by this section shall have effect as if it required a prospectus to state in addition to the matters required by that section to be stated in a prospectus—
(a)
the net amount of the consideration received or to be received by the company in respect of the shares or debentures to which the offer relates; and
(b)
the place and time at which the contract under which the said shares or debentures have been or are to be allotted, or a copy thereof, may be inspected.
(Amended 78 of 1972 s. 9)
(4)
Where a person making an offer to which this section relates is a company or a firm, it shall be sufficient if the document aforesaid is signed on behalf of the company or firm by 2 directors of the company or not less than half of the partners, as the case may be, and any such director or partner may sign by his agent authorized in writing.
[cf. 1929 c. 23 s. 38 U.K.]
41A.
Interpretation of provisions relating to prospectuses
(1)
For the purposes of the foregoing provisions of this Part—
(Amended 30 of 2004 s. 2)
(a)
a statement included in a prospectus shall be deemed to be untrue if it is misleading in the form and context in which it is included; and
(b)
a statement shall be deemed to be included in a prospectus if it is contained therein or in any report or memorandum appearing on the face thereof or by reference incorporated therein or issued therewith.
(2)
For the purposes of sections 40 and 40A,
untrue statement
(不真實陳述
), in relation to any prospectus, includes a material omission from the prospectus. (Added 30 of 2004 s. 2)
(Added 78 of 1972 s. 10)
[cf. 1948 c. 38 s. 46 U.K.]
42.
Prohibition of allotment unless minimum subscription received
(1)
Subject to section 38A, no allotment shall be made of any share capital of a company offered to the public for subscription unless the amount stated in the prospectus as the minimum amount which, in the opinion of the directors must be raised by the issue of share capital in order to provide for the matters specified in paragraph 7 in Part I of the Third Schedule has been subscribed, and the sum payable on application for the amount so stated has been paid to and received by the company. For the purposes of this subsection, a sum shall be deemed to have been paid to and received by the company if a cheque for that sum has been received in good faith by the company and the directors of the company have no reason for suspecting that the
cheque will not be paid.
(Amended 78 of 1972 s. 11; 86 of 1992 s. 8)
(2)
The amount so stated in the prospectus shall be reckoned exclusively of any
amount payable otherwise than in cash and is in this Ordinance referred to as the
minimum
subscription.
(3)
The amount payable on application on each share shall not be less than 5 per cent of the issue price of the share.
(Amended 28 of 2012 ss. 912 & 920)
(4)
Subject to section 38A, if the conditions aforesaid have not been complied with on the expiration of 30 days after the first issue of the prospectus, all money received from applicants for shares shall be forthwith repaid to them without interest, and, if any such money is not so repaid within 38 days after the issue of the prospectus, the directors of the company shall be jointly and severally liable to repay that money with interest at the rate of 8 per cent per annum from the expiration of the 38th day:
(Amended 86 of 1992 s. 8)
Provided that a director shall not be liable if he proves that the default in the repayment of the money was not due to any misconduct or negligence on his part.
(Replaced 78 of 1972 s. 11)
(5)
Any condition requiring or binding any applicant for shares to waive compliance with any requirement of this section shall be void.
(6)
This section, except subsection (3), shall not apply to any allotment of shares subsequent to the first allotment of shares offered to the public for subscription.
[cf. 1929 c. 23 s. 39 U.K.]
43.
Prohibition of allotment in certain cases unless statement in lieu of prospectus
delivered to Registrar
(1)
A company having a share capital which does not issue a prospectus on its
formation, or which has issued such a prospectus but has not proceeded to allot any
of the shares offered to the public for subscription, shall not allot any of its
shares or debentures unless at least 3 days before the first allotment of either
shares or debentures there has been delivered to the Registrar for registration a
statement in lieu of prospectus signed by every person who is named therein as a
director or a proposed director of the company or by his agent authorized in
writing, in the form and containing the particulars set out in Part I of the
Fourth Schedule and, in the cases mentioned in Part II of that
Schedule, setting out the reports specified therein, and the said
Parts I and II shall have effect subject to the provisions contained in Part III of
that Schedule.
(1A)
In subsection (1), a reference to a company’s formation is, in relation to a
company that is a re-domiciled company, a reference to the time when the company
becomes a re-domiciled company.
(Added 14 of 2025 s. 105)
(2)
Every statement in lieu of prospectus delivered under subsection (1) shall,
where the persons making any such report as aforesaid have made therein or have,
without giving the reasons, indicated therein any such adjustments as are mentioned
in paragraph 5 of the said Fourth Schedule, have endorsed
thereon or attached thereto a written statement signed by those person setting out
the adjustments and giving the reasons therefor.
(3)
This section shall not apply to a private company or any allotment of shares or
debentures the subject of an offer specified in Part 1 of the
Seventeenth Schedule as read with the other Parts of that
Schedule.
(Amended 30 of 2004 s. 2)
(4)
If a company acts in contravention of subsection (1) or (2), the company and
every director of the company who knowingly and wilfully authorizes or permits the
contravention shall be liable to a fine.
(Amended 7 of 1990 s. 2)
(5)
Where a statement in lieu of prospectus delivered to the Registrar under
subsection (1) includes any untrue statement, any person who authorized the delivery
of the statement in lieu of prospectus for registration shall be liable to
imprisonment and a fine, unless he proves either that the untrue statement was
immaterial or that he had reasonable ground to believe and did up to the time of the
delivery for registration of the statement in lieu of prospectus believe that the
untrue statement was true.
(Amended 7 of 1990 s. 2)
(6)
For the purposes of this section—
(a)
a statement included in a statement in lieu of prospectus shall be deemed
to be untrue if it is misleading in the form and context in which it is
included; and
(b)
a statement shall be deemed to be included in a statement in lieu of
prospectus if it is contained therein or in any report or memorandum appearing
on the face thereof or by reference incorporated therein.
(6A)
For the purposes of subsection (5),
untrue
statement
(不真實陳述
), in relation to a
statement in lieu of prospectus, includes a material omission from the
statement. (Added 30 of 2004 s. 2)
(7)
The Chief Executive in Council may by regulation amend the Fourth
Schedule.
(Amended 23 of 1999 s. 3)
(Replaced 78 of 1972 s. 12)
[cf. 1948 c. 38 s. 48 U.K.]
44.
Effect of irregular allotment
(1)
An allotment made by a company to an applicant in contravention of the provisions of sections 42 and 43, shall be voidable at the instance of the applicant within 1 month after the holding of the statutory meeting of the company and not later, or, in any case where the company is not required to hold a statutory meeting, or where the allotment is made after the holding of the statutory meeting, within 1 month after the date of the allotment, and not later, and shall be so voidable notwithstanding that the company is in course of being wound up.
(2)
If any director of a company knowingly contravenes, or permits or authorizes the contravention of, any of the provisions of the said sections with respect to allotment, he shall be liable to compensate the company and the allottee respectively for any loss, damages, or costs which the company or the allottee may have sustained or incurred thereby:
Provided that proceedings to recover any such loss, damages, or costs shall not be commenced after the expiration of 2 years from the date of the allotment.
[cf. 1929 c. 23 s. 41 U.K.]
44A.
Applications for, and allotment of, shares and debentures
(1)
No allotment shall be made of any shares in or debentures
of a company in pursuance of a prospectus issued generally and no proceedings
shall be taken on applications made in pursuance of a prospectus so issued,
until the beginning of the 3rd day after that on which the prospectus is first
so issued or such later time (if any) as may be specified in the
prospectus.
The beginning of the said 3rd day or such later time as
aforesaid is hereafter in this Ordinance referred to as the time of the
opening of the subscription lists.
(2)
Subject to section 38A, no allotment shall be made of any shares in or debentures of a company in pursuance of a prospectus issued generally later than 30 days after the day on which the prospectus is first so issued.
(Amended 86 of 1992 s. 9)
(3)
In subsections (1) and (2), the references to the day on which the prospectus is first issued generally shall be construed as referring to the day on which it is first so issued as a newspaper advertisement:
Provided that, if it is not so issued as a newspaper advertisement before the 3rd day after that on which it is first so issued in any other manner, the said reference shall be construed as referring to the day on which it is first so issued in any manner.
(4)
The validity of an allotment shall not be affected by any contravention of the foregoing provisions of this section but, in the event of any such contravention, the company and every officer of the company who is in default shall be liable to a fine.
(Amended 7 of 1990 s. 2)
(5)
In the application of this section to a prospectus offering shares or debentures for sale, the foregoing subsections shall have effect with the substitution of references to sale for references to allotment, and with the substitution for the reference to the company and every officer of the company who is in default of a reference to any person by or through whom the offer is made and who knowingly and wilfully authorizes or permits the contravention.
(6)
An application for shares in or debentures of a company which is made in pursuance of a prospectus issued generally shall not be revocable until after the expiration of the 5th day after the time of the opening of the subscription lists, or the giving before the expiration of the said 5th day, by some person responsible under section 40 for the prospectus, of a public notice having the effect under that section of excluding or limiting the responsibility of the person giving it.
(7)
In reckoning for the purposes of this section and section 44B the 3rd or 5th day after another day, any intervening day which is a Saturday or Sunday or which is a general holiday in Hong Kong shall be disregarded, and if the 3rd or 5th day (as so reckoned) is itself a Saturday or Sunday or such a holiday there shall for the said purposes be substituted the 1st day thereafter which is none of them.
(Amended 6 of 1984 s. 259)
(Added 78 of 1972 s. 13)
[cf. 1948 c. 38 s. 50 U.K.]
44B.
Allotment of shares and debentures to be listed on stock exchange
(1)
Where a prospectus, whether issued generally or not, states that application has been or will be made for permission for the shares or debentures offered thereby to be listed on any stock exchange, any allotment made on an application in pursuance of the prospectus shall, whenever made, be void if the permission has not been applied for before the 3rd day after the first issue of the prospectus or if the permission has been refused before the expiration of 3 weeks from the date of the closing of the subscription lists or such longer period not exceeding 6 weeks as may, within the said 3 weeks, be notified to the applicant for permission by or on behalf of the stock exchange.
(Amended 6 of 1984 s. 259)
(2)
Where the permission has not been applied for as aforesaid, or has been refused as aforesaid, the company shall forthwith repay without interest all money received from applicants in pursuance the prospectus, and, if any such money is not repaid within 8 days after the company becomes liable to repay it, the directors of the company shall be jointly and severally liable to repay that money with interest at the rate of 8 per cent per annum from the expiration of the 8th day:
Provided that a director shall not be liable if he proves that the default in the repayment of the money was not due to any misconduct or negligence on his part.
(3)
All money received as aforesaid shall be kept in a separate bank account so long as the company may become liable to repay it under subsection (2); and, if default is made in complying with this subsection, the company and every officer of the company who is in default shall be liable to a fine.
(Amended 7 of 1990 s. 2)
(4)
Any condition requiring or binding any applicant for shares or debentures to waive compliance with any requirement of this section shall be void.
(5)
For the purposes of this section, permission shall not be deemed to be refused if it is intimated that the application for it, though not at present granted, will be given further consideration.
(6)
This section shall have effect—
(a)
in relation to any shares or debentures agreed to be taken by a person underwriting an offer thereof by a prospectus as if he had applied therefor in pursuance of the prospectus; and
(b)
in relation to a prospectus offering shares for sale with the following modifications, that is to say—
(i)
references to sale shall be substituted for references to allotment;
(ii)
the persons by whom the offer is made, and not the company, shall be liable under subsection (2) to repay money received from applicants, and references to the company’s liability under that subsection shall be construed accordingly; and
(iii)
for the reference in subsection (3) to the company and every officer of the company who is in default there shall be substituted a reference to any person by or through whom the offer is made and who knowingly and wilfully authorizes or permits the default.
(Added 78 of 1972 s. 13)
[cf. 1948 c. 38 s. 51 U.K.]
45.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
46.
(Repealed 28 of 2012 ss. 912 & 920)
47.
(Repealed 80 of 1974 s. 3)
(Cross-headings repealed 28 of 2012 ss. 912 & 920)
47A.
(Repealed 28 of 2012 ss. 912 & 920)
47B.
(Repealed 28 of 2012 ss. 912 & 920)
47C.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
47D.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
47E.
(Repealed 28 of 2012 ss. 912 & 920)
47F.
(Repealed 28 of 2012 ss. 912 & 920)
47G.
(Repealed 28 of 2012 ss. 912 & 920)
48.
(Repealed 28 of 2012 ss. 912 & 920)
Division 3
Construction
of References to Offering Shares or Debentures to the
Public
(Replaced 14 of 2016 s. 9)
48A.
Construction of references to offering shares or debentures to the public
(1)
Any reference in this Ordinance to offering shares or debentures to the public shall, subject to any provision to the contrary contained therein, be construed as including a reference to offering them to any section of the public, whether selected as members or debenture holders of the company concerned or as clients of the person issuing the prospectus or in any other manner, and references in this Ordinance or in a company’s articles to invitations to the public to subscribe for shares or debentures shall, subject as aforesaid, be similarly construed.
(2)
Subsection (1) shall not be taken as requiring any offer or invitation to be treated as made to the public if it can properly be regarded, in all the circumstances, as not being calculated to result, directly or indirectly, in the shares or debentures becoming available for subscription or purchase by persons other than those receiving the offer or invitation, or otherwise as being a domestic concern of the persons making and receiving it, and in particular—
(a)
a provision in a company’s articles prohibiting invitations to the public to subscribe for shares or debentures shall not be taken as prohibiting the making to members or debenture holders of an invitation which can properly be regarded as aforesaid; and
(b)
the provisions of this Ordinance relating to private companies shall be construed accordingly.
(3)
For the avoidance of doubt, it is hereby declared that the provisions of the Seventeenth Schedule shall not be construed to prejudice the generality of this section.
(Added 30 of 2004 s. 2)
(Added 78 of 1972 s. 14)
[cf. 1948 c. 38 s. 55 U.K.]
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
48B.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
48C.
(Repealed 28 of 2012 ss. 912 & 920)
48D.
(Repealed 28 of 2012 ss. 912 & 920)
48E.
(Repealed 28 of 2012 ss. 912 & 920)
48F.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-headings repealed 28 of 2012 ss. 912 & 920)
49.
(Repealed 28 of 2012 ss. 912 & 920)
49A.
(Repealed 28 of 2012 ss. 912 & 920)
49B.
(Repealed 28 of 2012 ss. 912 & 920)
49BA.
(Repealed 28 of 2012 ss. 912 & 920)
49C.
(Repealed 28 of 2012 ss. 912 & 920)
49D.
(Repealed 28 of 2012 ss. 912 & 920)
49E.
(Repealed 28 of 2012 ss. 912 & 920)
49F.
(Repealed 28 of 2012 ss. 912 & 920)
49G.
(Repealed 28 of 2012 ss. 912 & 920)
49H.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
49I.
(Repealed 28 of 2012 ss. 912 & 920)
49J.
(Repealed 28 of 2012 ss. 912 & 920)
49K.
(Repealed 28 of 2012 ss. 912 & 920)
49L.
(Repealed 28 of 2012 ss. 912 & 920)
49M.
(Repealed 28 of 2012 ss. 912 & 920)
49N.
(Repealed 28 of 2012 ss. 912 & 920)
49O.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
49P.
(Repealed 28 of 2012 ss. 912 & 920)
49Q.
(Repealed 28 of 2012 ss. 912 & 920)
49R.
(Repealed 28 of 2012 ss. 912 & 920)
49S.
(Repealed 28 of 2012 ss. 912 & 920)
50.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
51.
(Repealed 28 of 2012 ss. 912 & 920)
52.
(Repealed 28 of 2012 ss. 912 & 920)
53.
(Repealed 28 of 2012 ss. 912 & 920)
54.
(Repealed 28 of 2012 ss. 912 & 920)
55.
(Repealed 28 of 2012 ss. 912 & 920)
56.
(Repealed 28 of 2012 ss. 912 & 920)
57.
(Repealed 28 of 2012 ss. 912 & 920)
57A.
(Repealed 28 of 2012 ss. 912 & 920)
57B.
(Repealed 28 of 2012 ss. 912 & 920)
57C.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
58.
(Repealed 28 of 2012 ss. 912 & 920)
59.
(Repealed 28 of 2012 ss. 912 & 920)
60.
(Repealed 28 of 2012 ss. 912 & 920)
61.
(Repealed 28 of 2012 ss. 912 & 920)
61A.
(Repealed 28 of 2012 ss. 912 & 920)
62.
(Repealed 28 of 2012 ss. 912 & 920)
63.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
63A.
(Repealed 28 of 2012 ss. 912 & 920)
64.
(Repealed 28 of 2012 ss. 912 & 920)
64A.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
65.
(Repealed 28 of 2012 ss. 912 & 920)
65A.
(Repealed 28 of 2012 ss. 912 & 920)
66.
(Repealed 28 of 2012 ss. 912 & 920)
67.
(Repealed 28 of 2012 ss. 912 & 920)
68.
(Repealed 28 of 2012 ss. 912 & 920)
69.
(Repealed 28 of 2012 ss. 912 & 920)
69A.
(Repealed 28 of 2012 ss. 912 & 920)
70.
(Repealed 28 of 2012 ss. 912 & 920)
71.
(Repealed 28 of 2012 ss. 912 & 920)
71A.
(Repealed 28 of 2012 ss. 912 & 920)
72.
(Repealed 28 of 2012 ss. 912 & 920)
73.
(Repealed 28 of 2012 ss. 912 & 920)
73A.
(Repealed 28 of 2012 ss. 912 & 920)
74.
(Repealed 28 of 2012 ss. 912 & 920)
74A.
(Repealed 28 of 2012 ss. 912 & 920)
74B.
(Repealed 28 of 2012 ss. 912 & 920)
75.
(Repealed 28 of 2012 ss. 912 & 920)
75A.
(Repealed 28 of 2012 ss. 912 & 920)
75B.
(Repealed 28 of 2012 ss. 912 & 920)
76.
(Repealed 28 of 2012 ss. 912 & 920)
77.
(Repealed 28 of 2012 ss. 912 & 920)
78.
(Repealed 28 of 2012 ss. 912 & 920)
79.
Payment of certain debts out of assets subject to floating charge in priority to claims under the charge
(1)
Where a receiver is appointed on behalf of the holders of any debentures of a company secured by a charge which, as created, was a floating charge, or possession is taken by or on behalf of those debenture holders of any property comprised in or subject to the charge, then, if the company is not at the time in course of being wound up, the debts, which in every winding-up are under the provisions of Part V relating to preferential payments to be paid in priority to all other debts, shall, according to their respective priorities under section 265, be paid out of any assets coming to the hands of the receiver or other person taking possession as aforesaid in priority to any claim for principal or interest in respect of the debentures.
(Amended 10 of 1987 s. 3)
(1A)
In the application of the provisions of Part V, section 265 shall be construed as if the provision for payment of accrued holiday remuneration becoming payable on the termination of employment before or by the effect of the winding-up order or resolution were a provision for payment of such remuneration becoming payable on the termination of employment before or by the effect of the appointment of the receiver or possession being taken as aforesaid.
(Added 6 of 1984 s. 45)
(2)
The periods of time mentioned in the said provisions of Part V shall be reckoned from the date of the appointment of the receiver or of possession being taken as aforesaid, as the case may be.
(2A)
Where the date referred to in subsection (2) occurred before the
commencement#
of the Companies (Amendment) Ordinance 1984 (6 of
1984), subsections (1) and (2) shall have effect with the substitution, for
references to the provisions of Part V, of references to the provisions which, by
virtue of section 265(7) are deemed to remain in force in the case
therein mentioned, and subsection (1A) shall not apply.
(Added 6 of 1984 s. 45)
(3)
Any payments made under this section shall be recouped as far as may be out of the assets of the company available for payment of general creditors.
(Amended 6 of 1984 s. 45)
[cf. 1925 c. 23 s. 78 U.K.]
Editorial Note:
#
Commencement date: 31 August 1984.
Part IIA
(Repealed 28 of 2012 ss. 912 & 920)
79A.
(Repealed 28 of 2012 ss. 912 & 920)
79B.
(Repealed 28 of 2012 ss. 912 & 920)
79C.
(Repealed 28 of 2012 ss. 912 & 920)
79D.
(Repealed 28 of 2012 ss. 912 & 920)
79E.
(Repealed 28 of 2012 ss. 912 & 920)
79F.
(Repealed 28 of 2012 ss. 912 & 920)
79G.
(Repealed 28 of 2012 ss. 912 & 920)
79H.
(Repealed 28 of 2012 ss. 912 & 920)
79I.
(Repealed 28 of 2012 ss. 912 & 920)
79J.
(Repealed 28 of 2012 ss. 912 & 920)
79K.
(Repealed 28 of 2012 ss. 912 & 920)
79L.
(Repealed 28 of 2012 ss. 912 & 920)
79M.
(Repealed 28 of 2012 ss. 912 & 920)
79N.
(Repealed 28 of 2012 ss. 912 & 920)
79O.
(Repealed 28 of 2012 ss. 912 & 920)
79P.
(Repealed 28 of 2012 ss. 912 & 920)
Part III
(Repealed 28 of 2012 ss. 912 & 920)
80.
(Repealed 28 of 2012 ss. 912 & 920)
81.
(Repealed 28 of 2012 ss. 912 & 920)
82.
(Repealed 28 of 2012 ss. 912 & 920)
83.
(Repealed 28 of 2012 ss. 912 & 920)
84.
(Repealed 6 of 1984 s. 50)
85.
(Repealed 28 of 2012 ss. 912 & 920)
86.
(Repealed 28 of 2012 ss. 912 & 920)
87.
(Repealed 28 of 2012 ss. 912 & 920)
88.
(Repealed 28 of 2012 ss. 912 & 920)
89.
(Repealed 28 of 2012 ss. 912 & 920)
90.
(Repealed 28 of 2012 ss. 912 & 920)
91.
(Repealed 28 of 2012 ss. 912 & 920)
Part IV
(Repealed 14 of 2016 s. 11)
92.
(Repealed 28 of 2012 ss. 912 & 920)
93.
(Repealed 28 of 2012 ss. 912 & 920)
94.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 14 of 2016 s. 11)
95.
(Repealed 28 of 2012 ss. 912 & 920)
95A.
(Repealed 28 of 2012 ss. 912 & 920)
96.
(Repealed 28 of 2012 ss. 912 & 920)
97.
(Repealed 28 of 2012 ss. 912 & 920)
98.
(Repealed 28 of 2012 ss. 912 & 920)
98A.
(Repealed 28 of 2012 ss. 912 & 920)
99.
(Repealed 28 of 2012 ss. 912 & 920)
100.
(Repealed 28 of 2012 ss. 912 & 920)
101.
(Repealed 28 of 2012 ss. 912 & 920)
102.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
103.
(Repealed 28 of 2012 ss. 912 & 920)
104.
(Repealed 28 of 2012 ss. 912 & 920)
105.
(Repealed 31 of 1981 s. 95)
106.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
107.
(Repealed 28 of 2012 ss. 912 & 920)
108.
(Repealed 3 of 1997 s. 31)
109.
(Repealed 28 of 2012 ss. 912 & 920)
110.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 14 of 2016 s. 11)
111.
(Repealed 28 of 2012 ss. 912 & 920)
112.
(Repealed 6 of 1984 s. 74 )
113.
(Repealed 28 of 2012 ss. 912 & 920)
114.
(Repealed 28 of 2012 ss. 912 & 920)
114A.
(Repealed 28 of 2012 ss. 912 & 920)
114AA.
(Repealed 28 of 2012 ss. 912 & 920)
114B.
(Repealed 28 of 2012 ss. 912 & 920)
114C.
(Repealed 28 of 2012 ss. 912 & 920)
114D.
(Repealed 28 of 2012 ss. 912 & 920)
114E.
(Repealed 28 of 2012 ss. 912 & 920)
115.
(Repealed 14 of 2016 s. 11)
115A.
(Repealed 28 of 2012 ss. 912 & 920)
116.
(Repealed 28 of 2012 ss. 912 & 920)
116A.
(Repealed 28 of 2012 ss. 912 & 920)
116B.
(Repealed 28 of 2012 ss. 912 & 920)
116BA.
(Repealed 28 of 2012 ss. 912 & 920)
116BB.
(Repealed 28 of 2012 ss. 912 & 920)
116BC.
(Repealed 28 of 2012 ss. 912 & 920)
116C.
(Repealed 28 of 2012 ss. 912 & 920)
117.
(Repealed 28 of 2012 ss. 912 & 920)
118.
(Repealed 28 of 2012 ss. 912 & 920)
119.
(Repealed 28 of 2012 ss. 912 & 920)
119A.
(Repealed 28 of 2012 ss. 912 & 920)
120.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
121.
(Repealed 28 of 2012 ss. 912 & 920)
122.
(Repealed 28 of 2012 ss. 912 & 920)
123.
(Repealed 28 of 2012 ss. 912 & 920)
124.
(Repealed 28 of 2012 ss. 912 & 920)
125.
(Repealed 28 of 2012 ss. 912 & 920)
126.
(Repealed 28 of 2012 ss. 912 & 920)
127.
(Repealed 28 of 2012 ss. 912 & 920)
128.
(Repealed 28 of 2012 ss. 912 & 920)
129.
(Repealed 28 of 2012 ss. 912 & 920)
129A.
(Repealed 28 of 2012 ss. 912 & 920)
129B.
(Repealed 28 of 2012 ss. 912 & 920)
129C.
(Repealed 28 of 2012 ss. 912 & 920)
129D.
(Repealed 28 of 2012 ss. 912 & 920)
129E.
(Repealed 28 of 2012 ss. 912 & 920)
129F.
(Repealed 28 of 2012 ss. 912 & 920)
129G.
(Repealed 28 of 2012 ss. 912 & 920)
130.
(Repealed 6 of 1983 s. 60)
131.
(Repealed 28 of 2012 ss. 912 & 920)
132.
(Repealed 28 of 2012 ss. 912 & 920)
133.
(Repealed 28 of 2012 ss. 912 & 920)
134.
(Repealed 28 of 2012 ss. 912 & 920)
135.
(Repealed 68 of 1972 s. 52)
136.
(Repealed 68 of 1972 s. 52)
137.
(Repealed 68 of 1972 s. 52)
138.
(Repealed 68 of 1972 s. 52)
139.
(Repealed 68 of 1972 s. 52)
140.
(Repealed 28 of 2012 ss. 912 & 920)
140A.
(Repealed 28 of 2012 ss. 912 & 920)
140B.
(Repealed 28 of 2012 ss. 912 & 920)
141.
(Repealed 28 of 2012 ss. 912 & 920)
141A.
(Repealed 30 of 1999 s. 9)
141B.
(Repealed 30 of 1999 s. 9)
141C.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
141CA.
(Repealed 28 of 2012 ss. 912 & 920)
141CB.
(Repealed 28 of 2012 ss. 912 & 920)
141CC.
(Repealed 28 of 2012 ss. 912 & 920)
141CD.
(Repealed 28 of 2012 ss. 912 & 920)
141CE.
(Repealed 28 of 2012 ss. 912 & 920)
141CF.
(Repealed 28 of 2012 ss. 912 & 920)
141CG.
(Repealed 28 of 2012 ss. 912 & 920)
(Subheading repealed 12 of 2010 s. 33)
141CH.
(Repealed 12 of 2010 s. 34)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
141D.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
141E.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
142.
(Repealed 28 of 2012 ss. 912 & 920)
143.
(Repealed 28 of 2012 ss. 912 & 920)
144.
(Repealed 28 of 2012 ss. 912 & 920)
145.
(Repealed 28 of 2012 ss. 912 & 920)
145A.
(Repealed 28 of 2012 ss. 912 & 920)
145B.
(Repealed 28 of 2012 ss. 912 & 920)
146.
(Repealed 28 of 2012 ss. 912 & 920)
146A.
(Repealed 28 of 2012 ss. 912 & 920)
147.
(Repealed 28 of 2012 ss. 912 & 920)
148.
(Repealed 28 of 2012 ss. 912 & 920)
149.
(Repealed 28 of 2012 ss. 912 & 920)
149A.
(Repealed 72 of 1994 s. 5)
150.
(Repealed 28 of 2012 ss. 912 & 920)
151.
(Repealed 28 of 2012 ss. 912 & 920)
152.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
152A.
(Repealed 28 of 2012 ss. 912 & 920)
152B.
(Repealed 28 of 2012 ss. 912 & 920)
152C.
(Repealed 28 of 2012 ss. 912 & 920)
152D.
(Repealed 28 of 2012 ss. 912 & 920)
152E.
(Repealed 28 of 2012 ss. 912 & 920)
152F.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
152FA.
(Repealed 28 of 2012 ss. 912 & 920)
152FB.
(Repealed 28 of 2012 ss. 912 & 920)
152FC.
(Repealed 28 of 2012 ss. 912 & 920)
152FD.
(Repealed 28 of 2012 ss. 912 & 920)
152FE.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
153.
(Repealed 28 of 2012 ss. 912 & 920)
153A.
(Repealed 28 of 2012 ss. 912 & 920)
153B.
(Repealed 28 of 2012 ss. 912 & 920)
153C.
(Repealed 28 of 2012 ss. 912 & 920)
154.
(Repealed 28 of 2012 ss. 912 & 920)
154A.
(Repealed 28 of 2012 ss. 912 & 920)
154B.
(Repealed 28 of 2012 ss. 912 & 920)
155.
(Repealed 28 of 2012 ss. 912 & 920)
155A.
(Repealed 28 of 2012 ss. 912 & 920)
155B.
(Repealed 28 of 2012 ss. 912 & 920)
155C.
(Repealed 28 of 2012 ss. 912 & 920)
156.
(Repealed 28 of 2012 ss. 912 & 920)
157.
(Repealed 28 of 2012 ss. 912 & 920)
157A.
(Repealed 28 of 2012 ss. 912 & 920)
157B.
(Repealed 28 of 2012 ss. 912 & 920)
157C.
(Repealed 28 of 2012 ss. 912 & 920)
157D.
(Repealed 28 of 2012 ss. 912 & 920)
157E.
(Repealed 30 of 1994 s. 3)
157F.
(Repealed 30 of 1994 s. 3)
157G.
(Repealed 75 of 1993 s. 10)
157H.
(Repealed 28 of 2012 ss. 912 & 920)
157HA.
(Repealed 28 of 2012 ss. 912 & 920)
157I.
(Repealed 28 of 2012 ss. 912 & 920)
157J.
(Repealed 28 of 2012 ss. 912 & 920)
158.
(Repealed 28 of 2012 ss. 912 & 920)
158A.
(Repealed 28 of 2012 ss. 912 & 920)
158B.
(Repealed 28 of 2012 ss. 912 & 920)
158C.
(Repealed 28 of 2012 ss. 912 & 920)
159.
(Repealed 28 of 2012 ss. 912 & 920)
160.
(Repealed 28 of 2012 ss. 912 & 920)
161.
(Repealed 28 of 2012 ss. 912 & 920)
161A.
(Repealed 28 of 2012 ss. 912 & 920)
161B.
(Repealed 28 of 2012 ss. 912 & 920)
161BA.
(Repealed 28 of 2012 ss. 912 & 920)
161BB.
(Repealed 28 of 2012 ss. 912 & 920)
161C.
(Repealed 28 of 2012 ss. 912 & 920)
162.
(Repealed 28 of 2012 ss. 912 & 920)
162A.
(Repealed 28 of 2012 ss. 912 & 920)
162B.
(Repealed 28 of 2012 ss. 912 & 920)
163.
(Repealed 28 of 2012 ss. 912 & 920)
163A.
(Repealed 28 of 2012 ss. 912 & 920)
163B.
(Repealed 28 of 2012 ss. 912 & 920)
163C.
(Repealed 28 of 2012 ss. 912 & 920)
163D.
(Repealed 28 of 2012 ss. 912 & 920)
164.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
165.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
166.
(Repealed 28 of 2012 ss. 912 & 920)
166A.
(Repealed 28 of 2012 ss. 912 & 920)
167.
(Repealed 28 of 2012 ss. 912 & 920)
168.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
168A.
(Repealed 28 of 2012 ss. 912 & 920)
168B.
(Repealed 28 of 2012 ss. 912 & 920)
Part IVAAA
(Repealed 28 of 2012 ss. 912 & 920)
168BAA.
(Repealed 28 of 2012 ss. 912 & 920)
168BAB.
(Repealed 28 of 2012 ss. 912 & 920)
168BAC.
(Repealed 28 of 2012 ss. 912 & 920)
168BAD.
(Repealed 28 of 2012 ss. 912 & 920)
168BAE.
(Repealed 28 of 2012 ss. 912 & 920)
168BAF.
(Repealed 28 of 2012 ss. 912 & 920)
168BAG.
(Repealed 28 of 2012 ss. 912 & 920)
168BAH.
(Repealed 28 of 2012 ss. 912 & 920)
168BAI.
(Repealed 28 of 2012 ss. 912 & 920)
Part IVAA
(Repealed 28 of 2012 ss. 912 & 920)
168BA.
(Repealed 28 of 2012 ss. 912 & 920)
168BB.
(Repealed 28 of 2012 ss. 912 & 920)
168BC.
(Repealed 28 of 2012 ss. 912 & 920)
168BD.
(Repealed 28 of 2012 ss. 912 & 920)
168BE.
(Repealed 28 of 2012 ss. 912 & 920)
168BF.
(Repealed 28 of 2012 ss. 912 & 920)
168BG.
(Repealed 28 of 2012 ss. 912 & 920)
168BH.
(Repealed 28 of 2012 ss. 912 & 920)
168BI.
(Repealed 28 of 2012 ss. 912 & 920)
168BJ.
(Repealed 28 of 2012 ss. 912 & 920)
168BK.
(Repealed 28 of 2012 ss. 912 & 920)
Part IVA
Disqualification
Orders
(Part IVA added 30 of 1994 s. 5)
(Format changes—E.R. 1 of
2014)
(Amended 14 of 2016 s. 12)
168C.
Interpretation
(1)
In this Part,
company
(公司
) means—(a)
(b)
an unregistered company within the meaning of Part X (other than a partnership, whether limited or not, or an association)—
(i)
wherever incorporated;
(ii)
carrying on business in Hong Kong or which has carried on business in Hong Kong; and
(iii)
which is capable of being wound up under this Ordinance; or
(Amended 30 of 2004 s. 2)
(c)
a registered non-Hong Kong company.
(Added 30 of 2004 s. 2. Amended 28 of 2012 ss. 912 & 920)
(2)
(Repealed 28 of 2012 ss. 912 & 920)
(Replaced 28 of 2003 s. 74)
168D.
Disqualification orders: general
(1)
In the circumstances specified in this Part, a court may, and under section 168H shall, make against a person a disqualification order, that is to say an order that he shall not, without leave of the court—
(a)
be a director of a company;
(b)
be a provisional liquidator or liquidator of a company;
(Amended 14 of 2016 s. 13)
(c)
be a receiver or manager of a company’s property; or
(d)
in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company,
for a specified period beginning with the date of the order.
(2)
In each section which gives to a court power or, as the case may be, imposes on it the duty to make a disqualification order there is specified the maximum (and, in section 168H, the minimum) period of disqualification which may or, as the case may be, shall be imposed by means of the order.
(3)
Where a disqualification order is made against a person who is already subject to such an order, the periods specified in those orders shall run concurrently.
(4)
A disqualification order may be made on grounds which are or include matters other than criminal convictions, notwithstanding that the person in respect of whom it is to be made may be criminally liable in respect of those matters.
168E.
Disqualification on conviction of indictable offence
(1)
The court may make a disqualification order against a person where he is convicted of an indictable offence (whether on indictment or summarily)—
(a)
in connection with the promotion, formation, management or liquidation of a company; or
(b)
in connection with the receivership or management of a company’s property,
or any other indictable offence his conviction for which necessarily involves a finding that he acted fraudulently or dishonestly.
(2)
In subsection (1)
the court
(法院
) means the Court of First Instance or the court by or before which the person is convicted of the offence.(3)
The maximum period of disqualification under this section is, where the disqualification order is made—
(a)
by a judge of the Court of First Instance, 15 years;
(b)
by a judge of the District Court, 10 years;
(c)
by a magistrate, 5 years.
(4)
Where a disqualification order is made by a magistrate and the Official Receiver or—
(a)
the liquidator;
(b)
a past or present member; or
(c)
a creditor,
of the company affected believes that the facts would justify a disqualification order for a longer period, he may apply to the Court of First Instance for such a disqualification order and it may, if it considers it appropriate in the circumstances, make an order for such longer period as it determines.
(Amended 25 of 1998 s. 2)
168F.
Disqualification for persistent breaches of specified
provisions
(Amended 28 of 2012 ss. 912 & 920)
(1)
The court may make a disqualification order against a person where it appears
to it that the person has been persistently in default in relation to the specified
provisions.
(2)
On an application to the court for an order to be made under this section, the
fact that a person has been persistently in default in relation to the specified
provisions may (without prejudice to its proof in any other manner) be conclusively
proved by showing that in the 5 years ending with the date of application the person
has been adjudged guilty (whether or not on the same occasion) of 3 or more defaults
in relation to the specified provisions.
(3)
A person is to be treated under subsection (2) as being adjudged guilty of a
default in relation to a specified provision if—
(Amended 28 of 2012 ss. 912 & 920)
(a)
the person is convicted of an offence consisting in a contravention of a
specified provision (whether on the person’s own part or on the part of any
company); or
(b)
an order of the court is made against the person under—
(i)
in the case of a specified provision of the pre-amended Ordinance or
this Ordinance, section 279, 302 or 306;
or
(ii)
in the case of a specified provision of the Companies Ordinance (Cap. 622), section 898 of that
Ordinance.
(4)
For the purposes of this section,
court
(法院
) includes a magistrate where the application
under this section is made in the course of a prosecution in which the person is
adjudged guilty of a default referred to in subsection (1) and, as a result,
subsection (2) applies to the person.(4A)
In this section—
specified provision
(指明條文
)
means a provision of the pre-amended Ordinance, this Ordinance, or the Companies
Ordinance (Cap. 622), requiring—(a)
any return, accounts or other document to be filed with, or delivered
or sent to, the Registrar; or
(b)
notice of any matter to be given to the Registrar.
(Added 28 of 2012 ss. 912 & 920)
(5)
The maximum period of disqualification under this section is 5 years.
(Amended 28 of 2012 ss. 912 & 920)
168G.
Disqualification for fraud, etc., in winding up
(1)
The court may make a disqualification order against a person if, in the course of the winding up of a company, it appears that he—
(a)
has been guilty of an offence for which he is liable (whether he has been convicted or not) under section 275; or
(b)
has otherwise been guilty, while an officer, provisional liquidator
or liquidator of the company or receiver or manager of its property, of any fraud in relation to the company or of any breach of his duty as such officer, provisional liquidator, liquidator, receiver or manager.
(Amended 14 of 2016 s. 14)
(2)
The maximum period of disqualification under this section is 15 years.
(3)
In this section,
officer
(高級人員
) includes a shadow director.168H.
Duty of court to disqualify unfit directors of insolvent companies
(1)
The court shall make a disqualification order against a person in any case where, on an application under this section, it is satisfied—
(a)
that he is or has been a director of a company which has at any time become insolvent whether while he was a director or subsequently; and
(b)
that his conduct as a director of that company, either taken alone or taken together with his conduct as a director of any other company or companies, makes him unfit to be concerned in the management of a company.
(2)
For the purposes of this section, a company becomes insolvent if—
(a)
the company goes into liquidation at a time when its assets are insufficient for the payment of its debts and other liabilities and the expenses of the winding up; or
(b)
a receiver of the company is appointed,
and references to a person’s conduct as a director of any company or companies include, where that company or any of those companies has become insolvent, that person’s conduct in relation to any matter connected with or arising out of the insolvency of that company.
(3)
(4)
Under this section the minimum period of disqualification is 1 year, and the maximum period is 15 years.
168I.
Applications to court under section 168H: reporting provisions
(1)
If it appears to—
(a)
the Financial Secretary; or
(Amended 46 of 2000 s. 16)
(b)
the Official Receiver,
(Amended 46 of 2000 s. 16)
that it is in the public interest that a disqualification order under section 168H should be made, an application for the making of such an order may be made by the Financial Secretary or the Official Receiver.
(2)
Except with the leave of the court, an application for the making under section 168H of a disqualification order against any person shall not be made after the end of the period of 4 years beginning, in the case of a company—
(a)
that is wound up, with the day on which the winding up of the company, of which that person is or has been a director, is deemed, under section 184, 228A or 230, as the case may be, to have commenced; or
(b)
that goes into receivership, with the day on which the receiver vacated his office.
(3)
If it appears to—
(a)
the liquidator of a company that is being wound up by him; or
(b)
the receiver in respect of a company for which he has been so appointed,
that the matters listed in section 168H(1)(a) and (b) may apply to a person who is or has been a director of that company, he shall forthwith report the matter to the Official Receiver who may report the matter to the Financial Secretary.
(Amended 46 of 2000 s. 16)
(4)
The Financial Secretary or the Official Receiver may require the liquidator or receiver of a company, or the former liquidator or receiver of a company—
(a)
to furnish him with such information with respect to any person’s conduct as a director of the company; and
(b)
to produce and permit inspection of such books, papers and other records relevant to that person’s conduct as such a director,
as the Financial Secretary or the Official Receiver, as the case may be, may reasonably require for the purpose of determining whether to exercise, or of exercising, any of his functions under this section.
168IA.
Power to order public examination
(1)
The court may, on the application of the Official Receiver by a report stating that in his opinion a prima facie case exists against any person that would render the person liable to a disqualification order under this Part, direct by order the person to attend before the court, on a day appointed by the court, and be publicly examined as to the conduct of the business and affairs of a company or as to the person’s conduct and dealings as a director.
(Amended 14 of 2016 s. 15)
(2)
The court may require a person referred to in subsection (1) to submit an affidavit to the court containing an account of the conduct of the business and affairs of the company or his conduct and dealings as a director of the company, or to produce any documents in his possession or under his control relating to the conduct of the business and affairs of the company or his conduct and dealings as a director of the company.
(Amended 14 of 2016 s. 15)
(3)
Where an application has been made under subsection (1), the court may require any person, other than a person referred to in subsection (1), whom the court thinks capable of giving information concerning the conduct of the business and affairs of the company concerned or as to the conduct and dealings of directors of the company to produce any documents in his possession or under his control relating to the conduct of the business and affairs of the company or as to the conduct and dealings of directors of the company.
(Amended 14 of 2016 s. 15)
(4)
The Official Receiver shall take part in the examination, and for that purpose may employ a solicitor with or without counsel.
(5)
The court may put such questions to the person examined as the court thinks fit.
(6)
The person examined shall be examined on oath, and shall answer all such questions as the court may put or allow to be put to him.
(7)
The person examined may at the person’s own cost employ a solicitor with or without counsel, who may—
(a)
put to the person any questions that the court thinks just for the purpose of enabling the person to explain or qualify any answers given by the person; and
(b)
make representations on the person’s behalf.
(Replaced 14 of 2016 s. 15)
(8)
There shall be made in writing such notes of examination as the court thinks proper and the notes shall be read over to or by the person examined, signed by him, and verified by affidavit at a venue fixed by the court.
(Amended 14 of 2016 s. 15)
(9)
The verified notes of the examination of each person who was examined shall, subject to any order or direction of the court as to the manner and extent in and to which the notes shall be used, be admissible in evidence against any person against whom an order for examination has been made in any proceedings under this Part.
(Added 46 of 2000 s. 17)
168IB.
Self-incrimination in relation to direction or requirement under section 168IA
(1)
A person is not excused from complying with a direction or requirement imposed on the person under section 168IA only on the ground that to do so might tend to incriminate the person.
(2)
Despite anything in this Ordinance, if—
(a)
a person is required to—
(i)
submit an affidavit under section 168IA(2); or
(ii)
answer a question under section 168IA(6); and
(b)
the affidavit or answer might tend to incriminate the person,
the requirement and the affidavit, or question and answer, are not admissible in evidence against the person in criminal proceedings other than those specified in subsection (3).
(3)
The proceedings are those in which the person is charged with any of the following offences in respect of the affidavit or answer—
(a)
an offence under section 349;
(4)
To avoid doubt, a question or answer not admissible under subsection (2) includes a record of the question or answer contained in the notes of the examination made under section 168IA(8).
(Added 14 of 2016 s. 16)
168J.
Disqualification after investigation of company
(1)
The court may make a disqualification order against a person where, on an
application under section 879(6) of the Companies Ordinance (Cap. 622), it is satisfied that the person’s conduct in
relation to the company makes the person unfit to be concerned in the management of
a company.
(2)
The maximum period of disqualification under this section is 15
years.
(Replaced 28 of 2012 ss. 912 & 920)
168K.
Matters for determining unfitness of directors
(1)
Where it falls to a court to determine whether a person’s conduct as a director of any particular company or companies makes him unfit to be concerned in the management of a company, the court shall, as respects his conduct as a director of that company or, as the case may be, each of those companies, have regard in particular—
(a)
to the matters mentioned in Part I of the Fifteenth Schedule; and
(b)
where the company has become insolvent, to the matters mentioned in Part II of that Schedule,
and references in that Schedule to the director and the company are to be read accordingly.
(2)
Section 168H(2) applies for the purposes of this section and the Fifteenth Schedule as it applies for the purposes of section 168H.
(3)
The Financial Secretary may by order modify any of the provisions of the Fifteenth Schedule; and such an order may contain such transitional provisions as may appear to the Financial Secretary necessary or expedient.
(4)
168L.
Fraudulent trading
(1)
Where the court makes a declaration under section 275 that a person is liable for all or any of the debts or other liabilities of a company, the court may, if it thinks fit and whether or not any person applies for such an order, make a disqualification order against the person to whom the declaration relates.
(2)
The maximum period of a disqualification order under this section is 15 years.
168M.
Criminal penalties
If a person acts in contravention of a disqualification order, he is guilty of an offence and is liable to imprisonment and a fine.
168N.
Offences by body corporate
(1)
Where a body corporate is guilty of an offence of acting in contravention of a disqualification order, and it is proved that the offence occurred with the consent or connivance of, or was attributable to any neglect on the part of, any director, manager, company secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity he, as well as the body corporate, is guilty of the offence and liable to be proceeded against and punished accordingly.
(Amended 28 of 2012 ss. 912 & 920)
(2)
Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
168O.
Personal liability for company’s debts where person acts while disqualified
(1)
A person is personally responsible for all the relevant debts of a company if at any time—
(a)
in contravention of a disqualification order or of section
480(1) of the Companies Ordinance (Cap.
622) he is involved in the management of the company; or
(Amended 28 of 2012 ss. 912 & 920)
(b)
as a person who is involved in the management of the company, he acts or is willing to act on instructions given without the leave of the court by a person whom he knows at that time to be the subject of a disqualification order or to be an undischarged bankrupt.
(2)
Where a person is personally responsible under this section for the relevant debts of a company, he is jointly and severally liable in respect of those debts with the company and any other person who, whether under this section or otherwise, is so liable.
(3)
For the purposes of this section the relevant debts of a company are—
(a)
in relation to a person who is personally responsible under subsection (1)(a), such debts and other liabilities of the company as are incurred at a time when that person was involved in the management of the company; and
(4)
For the purposes of this section, a person is involved in the management of a company if he is a director of the company or if he is concerned, whether directly or indirectly, or takes part, in the management of the company.
(5)
For the purposes of this section a person who, as a person involved in the management of a company, has at any time acted on instructions given without the leave of the court by a person whom he knew at that time to be the subject of a disqualification order or to be an undischarged bankrupt is presumed, unless the contrary is shown, to have been willing at any time thereafter to act on any instructions given by that person.
168P.
Application for disqualification order
(1)
A person intending to apply for the making of a disqualification order by the court, other than an application made in the course of a proceeding for the prosecution of an offence, shall give not less than 10 days’ notice of his intention to the person against whom the order is sought; and on the hearing of the application the last-mentioned person may appear and himself give evidence or call witnesses.
(2)
An application to a court for the making against any person of a disqualification order under—
(a)
section 168F may be made by the Registrar; and
(b)
any of sections 168E to 168G may be made by the Official Receiver, the Financial Secretary or by the liquidator or any past or present member or creditor of any company in relation to which that person has committed or is alleged to have committed an offence or other default.
(3)
On the hearing of any application under this Part made by the Registrar, the Official Receiver, the Financial Secretary or the liquidator, the applicant shall appear and call the attention of the court to any matters which seem to him to be relevant, and may himself give evidence or call witnesses.
(4)
Where, under this Part, a court may make a disqualification order in the course of a proceeding for the prosecution of an offence, it may make such an order if it thinks fit and whether or not any person applies for such an order.
168Q.
Application for leave under an order
Where—
(a)
a person who is the subject of a disqualification order made under this Part applies for leave of the court to participate in a company in one of the ways prohibited under section 168D(1); and
(b)
the disqualification order to which the application relates was made as a result of an application by the Financial Secretary, the Registrar, the Official Receiver or a liquidator,
the Financial Secretary, Registrar, Official Receiver or liquidator, as the case may be, shall appear and call the attention of the court to any matters which seem to him to be relevant, and may himself give evidence or call witnesses.
168R.
Register of disqualification orders
(1)
The Financial Secretary may make regulations requiring officers of courts to furnish the Registrar with such particulars as the regulations may specify of cases in which—
(a)
a disqualification order is made; or
(b)
any action is taken by a court in consequence of which such an order is varied or ceases to be in force; or
(c)
leave is granted by a court for a person subject to such an order to do anything which otherwise the order prohibits him from doing,
and the regulations may specify the time within which, and the form and manner in which, such particulars are to be furnished.
(2)
The Registrar shall, from the particulars so furnished, maintain a register of orders and of cases in which leave has been granted as mentioned in subsection (1)(c).
(3)
When an order of which entry is made in the register ceases to be in force, the Registrar shall delete the entry from the register and all particulars relating to it which have been furnished to him under this section.
(4)
The register shall be open to inspection on payment of such fee as may be payable under a regulation made under section 26 of the Companies Ordinance (Cap. 622).
(Amended 28 of 2012 ss. 912 & 920)
(5)
For the purposes of this section—
court
(法院
) includes—(a)
a magistrate;
(b)
a Tribunal within the meaning of section 2 of the repealed Ordinance;
(Amended 14 of 2012 s. 176)
(c)
the Market Misconduct Tribunal within the meaning of section 1 of Part 1 of Schedule 1 to the Securities and Futures Ordinance (Cap. 571); and
(Amended 14 of 2012 s. 176)
(d)
the Competition Tribunal established by section 134 of the
Competition Ordinance (Cap. 619);
(Added 14 of 2012 s. 176 and E.R. 1 of
2013)
disqualification order
(取消資格令
) means an order of the court under—(b)
(c)
section 214(2)(d),
214A(2)(d),
257(1)(a),
258(1),
303(2)(a) or 307N(1)(a) of the
Securities and Futures Ordinance (Cap. 571); or
(d)
repealed Ordinance
(已廢除條例
) means the Securities (Insider Dealing) Ordinance (Cap. 395) repealed under the Securities and Futures Ordinance (Cap. 571).
(Replaced 5 of 2002 s. 407)
168S.
Regulations
(1)
The Chief Justice may make regulations respecting proceedings in the Court of First Instance for a disqualification order under this Part.
(Amended 25 of 1998 s. 2)
(2)
The Financial Secretary may make regulations respecting the reporting to the Official Receiver of the conduct of persons as directors under section 168I(3).
168T.
Transitional
(1)
Sections 168E and 168G do not apply in relation to anything done before this Part comes into operation by a person in his capacity as liquidator of a company or as receiver or manager of a company’s property.
(2)
Subject to subsection (1), sections 168E and 168G apply in a case where a person is convicted of an offence, referred to in the relevant section, which he committed (and, in the case of a continuing offence, has ceased to commit) before this Part comes into operation; but in such a case a disqualification order under the relevant section shall not be made for a period in excess of 5 years.
(3)
Section 168F applies in respect of matters that took place before or after this Part comes into operation.
169.
Modes of winding up
(1)
The winding up of a company may be either—
(a)
by the court; or
(b)
voluntary.
(Amended 6 of 1984 s. 126)
(2)
The provisions of this Ordinance with respect to winding up apply, unless the contrary appears, to the winding up of a company in any of those modes.
[cf. 1929 c. 23 s. 156 U.K.]
170.
Liability as contributories of present and past members
(1)
In the event of a company being wound up, every present and past member shall be liable to contribute to the assets of the company to an amount sufficient for payment of its debts and liabilities, and the costs, charges, and expenses of the winding up, and for the adjustment of the rights of the contributories among themselves, subject to the provisions of subsection (2) and the following qualifications—
(a)
a past member shall not be liable to contribute if he has ceased to be a member for 1 year or upwards before the commencement of the winding up;
(b)
a past member shall not be liable to contribute in respect of any debt or liability of the company contracted after he ceased to be a member;
(c)
a past member shall not be liable to contribute unless it appears to the court that the existing members are unable to satisfy the contribution required to be made by them in pursuance of this Ordinance;
(d)
in the case of a company limited by shares no contribution shall be required from any member exceeding the amount, if any, unpaid on the shares in respect of which he is liable as a present or past member;
(e)
in the case of a company limited by guarantee, no contribution shall, subject to the provisions of subsection (3), be required from any member exceeding the amount undertaken to be contributed by him to the assets of the company in the event of its being wound up;
(f)
nothing in this Ordinance or the Companies Ordinance (Cap. 622) shall invalidate any provision contained in any policy of insurance or other contract whereby the liability of individual members on the policy or contract is restricted, or whereby the funds of the company are alone made liable in respect of the policy or contract;
(Amended 28 of 2012 ss. 912 & 920)
(g)
a sum due to any member of a company, in his character of a member, by way of dividends, profits or otherwise, shall not be deemed to be a debt of the company, payable to that member in a case of competition between himself and any other creditor not a member of the company, but any such sum may be taken into account for the purpose of the final adjustment of the rights of the contributories among themselves.
(2)
In the winding up of a limited company, any director, whether past or present, whose liability is, under the provisions of the pre-amended Ordinance, unlimited, shall, in addition to his liability (if any) to contribute as an ordinary member, be liable to make a
further contribution as if he were at the commencement of the winding up a member of an unlimited company:
(Amended 28 of 2012 ss. 912 & 920)
Provided that—
(a)
a past director shall not be liable to make such further contribution if he has ceased to hold office for a year or upwards before the commencement of the winding up;
(b)
a past director shall not be liable to make such further contribution in respect of any debt or liability of the company contracted after he ceased to hold office;
(c)
subject to the articles of the company, a director shall not be liable to make such further contribution unless the court deems it necessary to require that contribution in order to satisfy the debts and liabilities of the company, and the costs, charges, and expenses of the winding up.
(Amended 6 of 1984 s. 127)
(3)
In the winding up of a
company limited by guarantee which has a share capital, every member of the company shall be liable, in addition to the amount undertaken to be contributed by him to the assets of the company in the event of its being wound up, to contribute to the extent of any sums unpaid on any shares held by him.
[cf. 1929 c. 23 s. 157 U.K.]
170A.
Liability of
directors and shareholders involved in share redemption or buy-back out of
capital
(1)
This
section applies where a company is being wound up
and—
(a)
it has under Division 4 of Part 5 of the Companies Ordinance
(Cap. 622) made a payment out of capital in
respect of the redemption or buy-back of any of its own shares (
payment
out of capital
) from a person (past shareholder
);
and(b)
the aggregate amount of the company’s assets and the amounts paid by way of
contribution to its assets (apart from this section) is insufficient for payment
of its debts and liabilities, and the costs, charges and expenses of the winding
up.
(2)
If the winding up commenced on, or within 1 year after, the date on which the
payment out of capital was made, then the following persons are liable to contribute
to the company’s assets in accordance with subsection (3) so as to enable the
insufficiency mentioned in subsection (1)(b) to be met—
(a)
the past shareholder; and
(b)
the directors who signed the solvency statement required to be made under
section 259(1) of the Companies Ordinance (Cap. 622) in relation to the payment out of capital (except a
director who shows that the director had reasonable grounds for forming the
opinion expressed in the statement).
(3)
For the purposes of subsection (2)—
(a)
the past shareholder is liable to contribute an amount not exceeding the
amount of the payment out of capital made by the company in respect of the
shares redeemed or bought back from the past shareholder; and
(b)
the directors are jointly and severally liable with the past shareholder to
contribute the amount to which the past shareholder is liable to
contribute.
(4)
A person who has contributed any amount to the assets of a company under this
section may apply to the court for an order directing any other person who is
jointly and severally liable in respect of that amount to pay the person an amount
that the court thinks just and equitable.
(5)
The limitations under section 170 on any liability to contribute do not apply
in relation to liability accruing under this section.
(Added 14 of 2016 s. 20)
171.
Meaning of contributory
(Amended 14 of 2016 s. 21)
(1)
The term
contributory
(分擔人
) means every person liable to contribute to the assets of a company in the event of its being wound up, and for the purposes of all proceedings for determining, and all proceedings prior to the final determination of, the persons who are to be deemed contributories, includes any person alleged to be a contributory. (Amended 14 of 2016 s. 21)
(2)
A reference in a company’s articles to a contributory does not (unless the context requires) include a person who is a contributory only by virtue of section 170A.
(Added 14 of 2016 s. 21)
[cf. 1929 c. 23 s. 158 U.K.]
172.
Nature of liability of contributory
The liability of a contributory shall create a debt of the nature of a specialty accruing due from him at the time when his liability commenced, but payable at the times when calls are made for enforcing the liability.
[cf. 1929 c. 23 s. 159 U.K.]
173.
Contributories in case of death of member
(1)
If a contributory dies either before or after he has been placed on the list of contributories, his personal representatives shall be liable in due course of administration to contribute to the assets of the company in discharge of his liability and shall be contributories accordingly.
(Amended 6 of 1984 s. 128)
(2)
(Repealed 6 of 1984 s. 128)
(3)
If the personal representatives make default in paying any money ordered to be paid by them, proceedings may be taken for administering the estate of the deceased contributory, and for compelling payment thereout of the money due.
[cf. 1929 c. 23 s. 160 U.K.]
174.
Contributories in case of bankruptcy of member
If a contributory becomes bankrupt, either before or after he has been placed on the list of contributories—
(a)
his trustee in bankruptcy shall represent him for all the purposes of the winding up, and shall be a contributory accordingly, and may be called on to admit to proof against the estate of the bankrupt, or otherwise to allow to be paid out of his assets in due course of law, any money due from the bankrupt in respect of his liability to contribute to the assets of the company; and
(b)
there may be proved against the estate of the bankrupt the estimated value of his liability to future calls as well as calls already made.
[cf. 1929 c. 23 s. 161 U.K.]
175.
(Repealed 27 of 1971 s. 15)
176.
Jurisdiction to wind up companies
The Court of First Instance shall have jurisdiction to wind up any company.
(Replaced 6 of 1984 s. 129. Amended 25 of 1998 s. 2)
177.
Circumstances in which company may be wound up by court
(1)
A company may be wound up by the court if—
(a)
the company has by special resolution resolved that the company be wound up
by the court;
(b)
the company does not commence its business within
1
year after, or suspends its business for a continuous period of 1 year beginning
on any day falling after, the specified date;
(Amended 14 of 2025 s. 106)
(c)
the company has no members;
(Replaced 28 of 2003 s. 76)
(d)
the company is unable to pay its debts;
(e)
the event, if any, occurs on the occurrence of which the articles provide
that the company is to be dissolved;
(f)
the court is of opinion that it is just and equitable that the company
should be wound up.
(2)
On the application of the Registrar for the winding up of a company, the company
may be wound up by the court if it appears to the court—
(a)
that the company is being carried on for an unlawful purpose or any purpose
lawful in itself but one which cannot be carried out by a company; or
(b)
that throughout a period of not less than 6 months ending on the date of the
winding-up petition the company has not had—
(i)
in the case of a private company, at least one director; or
(ii)
in the case of a company not being a private company, at least 2
directors; or
(Replaced 28 of 2003 s. 76)
(c)
that throughout the period referred to in paragraph (b) the company has not
had a
company secretary; or
(d)
that the company—
(Amended 28 of 2012 ss. 912 & 920)
(i)
had failed to pay the annual registration fee payable under the
Eighth Schedule of the pre-amended Ordinance; or
(ii)
has failed to pay the annual registration fee payable under a
regulation made under section 26 of the Companies Ordinance (Cap. 622); or
(e)
without prejudice to paragraphs (a) to (d), that the company has been
persistently in breach of its specified obligations.
(2A)
For the purposes of subsection (2)(b) or (c), in determining the
length of the period in the case of a re-domiciled company, the number of days prior
to the re-domiciliation date of the company is to be disregarded.
(Added 14 of 2025 s. 106)
(3)
A company registered before the
commencement#
of the Companies (Amendment) Ordinance 1984 (6 of
1984) may by special resolution alter the provisions contained in its
articles by adding a provision to the effect that the company is to be dissolved
on the occurrence of a specified event, with or without another provision
providing for or prohibiting the alteration of the added provision:
(Amended 28 of 2012 ss. 912 & 920)
Provided that, where a private
company passes such a resolution, an application may be made to the court for
the alteration to be cancelled, and if such an application is made, the
alteration shall not have effect except in so far as it is confirmed by the court.
(Amended 28 of 2003 s. 76)
(4)
Where a private company passes a resolution under this section altering the
provisions contained in its articles, sections 90(5)(a), (5)(b) and (8)
and 91(1)(a), (5) and (6) of the Companies Ordinance (Cap.
622) apply in relation to the alteration and to any application made under
this section in the same manner as they apply in relation to alterations made under
that section 90 and to applications made under that section 91.
(Replaced 28 of 2003 s. 76)
(5)
Where a company (not being a private company) passes a resolution under this
section altering the provisions contained in its articles, section
90(5)(c), (6) and (8) of the Companies Ordinance (Cap. 622) applies in relation to the alteration made under this section
in the same manner as it applies in relation to alterations made under that
section 90.
(Added 28 of 2003 s. 76)
(6)
In relation to a resolution for altering the conditions of a company’s
memorandum that is passed by a company (whether a private company or not) under this
section before the
commencement@
of section 76 of the Companies (Amendment) Ordinance 2003 (28 of 2003), the provisions of this section in force
immediately before that commencement shall continue to have effect as if
section 76 of that Ordinance had not been enacted.
(Added 28 of 2003 s. 76)
(7)
In this section—
specified date
(指明日期
)—(a)
in relation to a company that is not a re-domiciled company—means its
date of incorporation; and
(b)
in relation to a re-domiciled company—means its re-domiciliation date;
(Added 14 of 2025 s. 106)
specified
obligation
(指明義務)
means an obligation under the pre-amended Ordinance, this Ordinance or the Companies
Ordinance (Cap. 622).
(Added 28 of 2012 ss. 912 & 920)
(Replaced 6 of 1984 s. 130. Amended 28 of 2012 ss. 912 & 920)
[cf. 1948 c. 38 s. 222 U.K.]
Editorial Note:
#
Commencement date: 31 August 1984.
@
Commencement date: 13 February 2004.
178.
Definition of inability to pay debts
(1)
A company shall be deemed to be unable to pay its debts—
(a)
if—
(i)
a creditor, by assignment or otherwise, to whom the company is indebted in a sum then due that equals or exceeds the specified amount, has served on the company a written demand—
(A)
in the prescribed form requiring the company to pay the sum so due; and
(B)
by leaving it at the registered office of the company; and
(ii)
the company has, for 3 weeks after the service of the demand, neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor;
(Replaced 14 of 2016 s. 24)
(b)
if execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part; or
(c)
if it is proved to the satisfaction of the court that the company is unable to pay its debts, and, in determining whether a company is unable to pay its debts, the court shall take into account the contingent and prospective liabilities of the company.
(2)
Subsection (1)(a) shall apply to 2 or more creditors to whom the company is indebted in respect of unpaid wages, wages in lieu of notice, severance payments, pay for untaken statutory holidays or pay for untaken annual leave, as the case may be, or all or any of them if the total of that indebtedness exceeds the sum referred to in that subsection, as if those creditors were a single creditor, and a demand under that subsection shall be valid if signed by any one or more of those creditors.
(3)
For the purpose of subsection (1)(a),
specified amount
(指明款額
) means the amount of $10,000 or, where an amount is prescribed under subsection (4), the prescribed amount.
(Added 28 of 2003 s. 77)
(4)
The Financial Secretary may, by regulation, prescribe any amount for the purposes of subsection (3).
(Added 28 of 2003 s. 77)
(5)
In subsection (2)—
pay for untaken annual leave
(未放年假薪酬
), pay for untaken statutory holidays
(未放法定假日薪酬
) and wages
(工資
) have the same meaning as in section 265.
(Added 7 of 2012 s. 10)
[cf. 1929 c. 23 s. 169 U.K.]
179.
Provisions as to applications for winding up
(1)
An application to the court for the winding up of a company shall be by petition, presented subject to the provisions of this section either by the company, or by any creditor or creditors (including any contingent or prospective creditor or creditors), contributory or contributories or the trustee in bankruptcy or the personal representative of a contributory, or by all or any of those parties, together or separately:
(Amended 6 of 1984 s. 131)
Provided that—
(a)
subject to subsection (1A), a contributory shall not be entitled to present a winding-up petition unless—
(Amended 14 of 2016 s. 26)
(i)
the company has no members; or
(Replaced 28 of 2003 s. 78)
(ii)
the shares in respect of which he is a contributory, or some of them, either were originally allotted to him or have been held by him, and registered in his name, for at least 6 months during the 18 months before the commencement of the winding up, or have devolved on him through the death of a former holder; and
(b)
(Repealed 6 of 1984 s. 131)
(c)
the court shall not give a hearing to a winding-up petition
presented by contingent or prospective creditor until such security for
costs has been given as the court thinks reasonable and until a prima
facie case for winding up has been established to the satisfaction of
the court; and
(Amended 6 of 1984 s. 131)
(d)
in a case falling within section 879(1) of the Companies Ordinance (Cap. 622), a winding-up petition may be presented by the Financial Secretary; and
(Added 6 of 1984 s. 131. Amended 28 of 2012 ss. 912 & 920)
(e)
in a case referred to in section 177(1)(c) or (2), a winding-up petition may be presented by the Registrar.
(Added 6 of 1984 s. 131)
(1A)
A person who is liable under section 170A to contribute to the assets of a company in the event of its being wound up may—
(a)
present a winding-up petition on the ground specified in section 177(1)(d) or (f) whether or not the condition under paragraph (a)(i) or (ii) of the proviso to subsection (1) is fulfilled; or
(b)
present a winding-up petition on any ground specified in section 177(1) if—
(i)
the person is also a contributory otherwise than under section 170A; and
(ii)
the condition under paragraph (a)(i) or (ii) of the proviso to subsection (1) is fulfilled.
(Added 14 of 2016 s. 26)
(2)
Where a company is being wound up voluntarily, a winding-up petition may be presented by the Official Receiver as well as by any other person authorized in that behalf under the other provisions of this section, but the court shall not make a winding-up order on the petition unless it is satisfied that the voluntary winding up cannot be continued with due regard to the interests of the creditors or contributories.
(Amended 6 of 1984 s. 131)
179A.
Appearance of Official Receiver
On the hearing of a winding-up petition by the court, the Official Receiver may appear and call, examine and cross-examine any witness and, if he so thinks fit, support or oppose the making of a winding-up order.
(Added 69 of 1979 s. 4)
180.
Powers of court on hearing petition
(1)
On hearing a winding-up petition the court may dismiss it, or adjourn the hearing conditionally or unconditionally, or make any interim order, or any other order that it thinks fit, but the court shall not refuse to make a winding-up order on the ground only that the assets of the company have been mortgaged to an amount equal to or in excess of those assets, or that the company has no assets.
(1A)
Where the petition is presented by members of the company as contributories on the ground that it is just and equitable that the company should be wound up, the court shall not refuse to make a winding-up order on the ground only that some other remedy is available to the petitioners unless it is also of opinion that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy.
(Added 51 of 1978 s. 7)
180A.
Hearing of unopposed petition by Registrar of High Court
(1)
Subject to general rules limiting the power conferred by this section, the jurisdiction of the court under this Part may, in the case of an unopposed petition for winding-up by the court, be exercised by the Registrar of the High Court.
(2)
Any hearing of a petition in pursuance of the jurisdiction conferred on the Registrar of the High Court by this section shall be in open court.
(Added 55 of 1988 s. 2. Amended 25 of 1998 s. 2)
181.
Power to stay or restrain proceedings against company
(1)
At any time after the presentation of a winding-up petition and before a
winding-up order has been made, the company or any creditor or contributory may—
(Amended 6 of 2024 s. 125)
(a)
where any action or proceeding against the company is pending in the Court
of First Instance or the Court of Appeal, apply to the court in which the action
or proceeding is pending for a stay of proceedings therein;
(b)
where any action or proceeding against the company is pending in any court
or tribunal other than the Court of First Instance or the Court of Appeal, apply
to the Court of First Instance to restrain further proceedings in the action or
proceeding,
and the court to which application is so made may, as the case may be, stay
or restrain the proceedings accordingly on such terms as it thinks fit.
(2)
However, if the action or proceeding relates to a case concerning national
security (within the meaning of section 3(2) of the Safeguarding National
Security Ordinance (6 of 2024)), the reference to “and
before a winding-up order has been made” in subsection (1) is to be disregarded in
applying that subsection.
(Added 6 of 2024 s. 125)
(Replaced 6 of 1984 s. 133. Amended 25 of 1998 s. 2)
[cf. 1948 c. 38 s. 226 U.K.]
182.
Avoidance of dispositions of property, &c. after commencement of winding up
In a winding up by the court, any disposition of the property of the company, including things in action, and any transfer of shares, or alteration in the status of the members of the company, made after the commencement of the winding up, shall, unless the court otherwise orders, be void.
[cf. 1929 c. 23 s. 173 U.K.]
183.
Avoidance of attachments, &c.
Where any company is being wound up by the court, any attachment, sequestration, distress, or execution put in force against the estate or effects of the company after the commencement of the winding up shall be void to all intents.
[cf. 1929 c. 23 s. 174 U.K.]
184.
Commencement of winding up by the court
(1)
Where before the presentation of a petition for the winding up of a company by the court a resolution has been passed by the company for voluntary winding up, the winding up of the company shall be deemed to have commenced at the time of the passing of the resolution, and unless the court, on proof of fraud or mistake, thinks fit otherwise to direct, all proceedings taken in the voluntary winding up shall be deemed to have been validly taken.
(2)
In any other case, the winding up of a company by the court shall be deemed to commence at the time of the presentation of the petition for the winding up.
[cf. 1929 c. 23 s. 175 U.K.]
185.
Copy of order to be delivered to Registrar
On the making of a winding-up order, a copy of the order shall forthwith be delivered by the company, or otherwise as may be prescribed, to the Registrar for registration.
(Replaced 6 of 1984 s. 133)
[cf. 1948 c. 38 s. 230 U.K.]
186.
Actions stayed on winding-up order
(1)
When a winding-up order has been made, or a provisional liquidator has been
appointed, no action or proceeding shall be proceeded with or commenced against the
company except by leave of the court, and subject to such terms as the court may impose.
(Amended 6 of 2024 s. 126)
(2)
If any action or proceeding relates to a case concerning national security
(within the meaning of section 3(2) of the Safeguarding National Security
Ordinance (6 of 2024)), subsection (1) does not prevent
the action or proceeding from being proceeded with or commenced against the company.
(Added 6 of 2024 s. 126)
[cf. 1929 c. 23 s. 177 U.K.]
187.
Effect of winding-up order
An order for winding up a company shall operate in favour of all the creditors and of all the contributories of the company as if made on the joint petition of a creditor and of a contributory.
[cf. 1929 c. 23 s. 178 U.K.]
188.
(Repealed 30 of 1999 s. 15)
189.
(Repealed 6 of 1984 s. 136)
190.
Statement of company’s affairs to be submitted to provisional liquidator or
liquidator
(1)
Where the court has made a winding-up order or appointed a provisional
liquidator
before the making of a winding-up order, there must, unless the
court thinks fit to order otherwise and so orders, be
made
and submitted to the provisional liquidator or liquidator a statement as to the
affairs of the company
(statement
of affairs) in the prescribed form, verified by
affidavit, and showing the particulars of its assets, debts, and liabilities, the
names, addresses, and occupations of its creditors, the securities held by them
respectively, the dates when the securities were respectively given, and such
further or other information as may be prescribed or as the provisional liquidator
or liquidator may require.
(2)
The statement
of
affairs must be made, submitted and verified by one or more of the
persons who are at the relevant date the directors and by the person who is at that
date the company secretary of the company, or by such of the persons hereinafter in
this subsection mentioned as the provisional liquidator or liquidator, subject to
the direction of the court, may require to make,
submit and verify the statement, that is to say,
persons—
(a)
who are or have been directors or officers of the company;
(b)
who have taken part in the formation of the company at any time within 1
year before the relevant date;
(c)
who are in the employment of the company, or have been in the employment of
the company within the said year, and are in the opinion of the provisional
liquidator or liquidator capable of giving the information required;
(Amended 46 of 2000 s. 20)
(d)
who are or have been within the said year officers of or in the employment
of a company, which is, or within the said year was, an officer of the company
to which the statement relates.
(2A)
The provisional liquidator or liquidator may, subject to the direction of the
court, require any of the persons mentioned in subsection (2)(a), (b),
(c) and (d) who has not made, submitted and verified the statement of affairs to
make and submit to the provisional liquidator or liquidator a supplementary
affidavit stating that the person concurs in the statement.
(Added 14 of 2016 s. 30)
(2B)
A supplementary affidavit made under subsection (2A) may be qualified in respect
of matters dealt with in the statement of affairs, where the maker of the
affidavit—
(a)
is not in agreement with the maker of the statement;
(b)
considers the statement to be erroneous or misleading; or
(c)
is without the direct knowledge necessary for concurring in the statement.
(Added 14 of 2016 s. 30)
(3)
The statement
of
affairs and supplementary affidavit must be submitted to the provisional liquidator
or liquidator within 28 days from the relevant date, or within
such extended time as the provisional liquidator or liquidator or the court may for
special reasons appoint.
(Amended 46 of 2000 s. 20; 14 of 2016 s. 30)
(4)
(Repealed 14 of 2016 s. 30)
(5)
If any person, without reasonable excuse, makes default in complying with the
requirements of this section, he shall be liable to a fine and, for continued
default, to a daily default fine.
(Amended 6 of 1984 s. 137; 7 of 1990 s. 2)
(5A)
A statement
of affairs
required by this section may be used in evidence against
the
person making the statement.
(Added 72 of 1994 s. 9. Amended 14 of 2016 s. 30)
(5B)
A supplementary affidavit required by this section may be used in evidence
against the person making the affidavit.
(Added 14 of 2016 s. 30)
(6)
A person claiming in writing to be a creditor or contributory of a company is
entitled, on payment of the prescribed fee—
(a)
to inspect at all reasonable times, either personally or through an agent,
the statement of affairs of the company, or a supplementary affidavit in
relation to that statement, that is submitted under this section; and
(b)
to obtain a copy of or extract from the statement or affidavit.
(Replaced 14 of 2016 s. 30)
(7)
A
person
untruthfully claiming to be a creditor or contributory under subsection (6) is
guilty of a contempt of court and is, on the application of the liquidator or
Official Receiver, punishable accordingly.
(Replaced 14 of 2016 s. 30)
(8)
In this section, the expression
the relevant
date
(有關日期
) means in a case where a
provisional liquidator is
appointed
before the making of a winding-up order, the date of his
appointment, and, in a case where no such appointment is made, the date of the
winding-up order.
(Amended 14 of 2016 s. 30)
(9)
In subsections (3), (5A) and (6), a reference to statement of affairs includes
the affidavit verifying the statement as required by subsection (1).
(Added 14 of 2016 s. 30)
[cf. 1929 c. 23 s. 181 U.K.]
190A.
Costs and expenses of statement of affairs or supplementary affidavit
(1)
Subject to subsections (2) and (3), a person who makes the statement of affairs of a company, or a supplementary affidavit in relation to that statement, that is required by section 190 is entitled to be paid by the provisional liquidator or liquidator out of the assets of the company the costs and expenses incurred in and about the preparation and making of the statement or affidavit.
(2)
Except by order of the court, the person is not entitled to be paid any of the costs and expenses unless, before the costs and expenses were incurred—
(a)
the person had—
(i)
applied to the provisional liquidator or liquidator for sanction of the incurring of the costs and expenses; and
(ii)
submitted to the provisional liquidator or liquidator a statement of the estimated costs and expenses intended to be incurred; and
(b)
the provisional liquidator or liquidator had sanctioned the incurring of the costs and expenses.
(3)
For the costs and expenses incurred, the person is entitled to be paid only the amount that the provisional liquidator or liquidator considers reasonable.
(4)
A decision of the provisional liquidator or liquidator under this section relating to the payment of costs and expenses is subject to an appeal to the court.
(5)
In this section, a reference to statement of affairs includes the affidavit verifying the statement as required by section 190(1).
(Added 14 of 2016 s. 31)
191.
Report by Official Receiver or liquidator
(1)
In a case where a winding-up order is made, the liquidator shall, as soon as practicable after receipt of the statement to be submitted under section 190, or, in a case where the court orders that no statement shall be submitted, as soon as practicable after the date of the order, submit a preliminary report to the court—
(Amended L.N. 378 of 1989; 46 of 2000 s. 21)
(a)
as to the amount of capital issued, subscribed, and paid up, and the estimated amount of assets and liabilities; and
(b)
if the company has failed, as to the causes of the failure; and
(c)
whether in his opinion further inquiry is desirable as to any matter relating to the promotion, formation or failure of the company, or the conduct of the business and affairs thereof.
(Amended 14 of 2016 s. 32)
(2)
The Official Receiver or liquidator may also, if he thinks fit, make a further report, or further reports, stating the manner in which the company was formed and whether in his opinion any fraud has been committed by any person in its promotion or formation, or by any officer of the company in relation to the company since the formation thereof, and any other matters which in his opinion it is desirable to bring to the notice of the court.
(3)
(Repealed 14 of 2016 s. 32)
(Amended 6 of 1984 s. 138; 46 of 2000 s. 21)
[cf. 1929 c. 23 s. 182 U.K.]
(Subheading repealed 46 of 2000 s. 22)
192.
Power of court to appoint liquidators
For the purpose of conducting the proceedings in winding up a company and performing such duties in reference thereto as the court may impose, the court may appoint a liquidator or liquidators, provisionally or otherwise, in accordance with sections 193 and 194.
(Amended 6 of 1984 s. 139; 46 of 2000 s. 23)
[cf. 1929 c. 23 s. 183 U.K.]
193.
Appointment and powers of provisional liquidator before winding-up order
(Amended 14 of 2016 s. 33)
(1)
Subject to the provisions of this section, the court may appoint a liquidator provisionally at any time after the presentation of a winding-up petition and before the making of a winding-up order in respect of a company.
(Replaced 14 of 2016 s. 33)
(2)
The court may appoint either the Official Receiver or any other fit person to be the provisional liquidator.
(Replaced 14 of 2016 s. 33)
(3)
Where a liquidator is provisionally appointed by the court, the court may limit and restrict his powers by the order appointing him.
(4)
A provisional liquidator appointed under this section must perform the duties that may be imposed on the provisional liquidator by the court.
(Added 14 of 2016 s. 33)
(5)
Where a person other than the Official Receiver is appointed as a provisional liquidator under this section, the court may, by the order appointing the provisional liquidator or on the application of the provisional liquidator, determine how the provisional liquidator is to be remunerated.
(Added 14 of 2016 s. 33)
(6)
The court may, on cause shown, terminate the appointment of a provisional liquidator appointed under this section on application by any of the following—
(a)
a provisional liquidator;
(b)
the Official Receiver;
(c)
a creditor;
(d)
a contributory;
(e)
the petitioner;
(f)
the company.
(Added 14 of 2016 s. 33)
(7)
A provisional liquidator appointed under this section may resign and on the application of the provisional liquidator, the court may determine whether or not to accept the resignation, and may give any directions and make any orders that the court thinks necessary.
(Added 14 of 2016 s. 33)
[cf. 1929 c. 23 s. 184 U.K.]
194.
Appointment, style, etc. of liquidators on making of winding-up order
(Amended 14 of 2016 s. 34)
(1)
The following provisions have effect on a winding-up order being made—
(Amended 3 of 1997 s. 41; 14 of 2016 s. 34)
(a)
subject to paragraph (aa) and subsection (1A), the Official Receiver shall by virtue of his office become the provisional liquidator and shall continue to act as such until he or another person becomes liquidator and is capable of acting as such;
(Amended 3 of 1997 s. 41; 46 of 2000 s. 24)
(aa)
where under section 193 a person other than the Official Receiver is appointed as provisional liquidator, he shall continue to act as the provisional liquidator until he or another person becomes the liquidator and is capable of acting as such;
(Added 3 of 1997 s. 41)
(b)
the provisional liquidator shall summon separate meetings of the creditors and contributories of the company for the purpose of determining whether or not an application is to be made to the court for appointing a liquidator;
(Amended 3 of 1997 s. 41; 46 of 2000 s. 24)
(c)
the court may make any appointment and order required to give effect to any such determination, and, if there is a difference between the determinations of the meetings of the creditors and contributories in respect of the matter aforesaid, the court shall decide the difference and make such order thereon as the court may think fit;
(d)
the court may make any appointment and order as it thinks fit if the creditors and contributories of the company do not pass a resolution or do not meet;
(Replaced 46 of 2000 s. 24)
(da)
if a vacancy occurs in the office of a provisional liquidator who is holding office by virtue of paragraph (aa) or subsection (1A), the Official Receiver becomes the provisional liquidator and is taken to be the provisional liquidator of the company holding office by virtue of paragraph (a);
(Added 14 of 2016 s. 34)
(e)
the Official Receiver shall by virtue of his office be the liquidator during any vacancy;
(f)
a liquidator shall be described, where a person other than the Official Receiver is liquidator, by the style of the liquidator, and, where the Official Receiver is liquidator, by the style of the Official Receiver and liquidator, of the particular company in respect of which he is appointed, and not by his individual name.
(1A)
Where the Official Receiver—
(a)
is the provisional liquidator of the company by virtue of subsection (1)(a); and
(b)
is of the opinion that the property of the company is not likely to exceed in value $200,000,
he may, at any time, appoint 1 or more persons as provisional liquidator in his place.
(Added 46 of 2000 s. 24)
(2)
Where the Official Receiver is the liquidator of the company, he may, at any time, apply to the court for the appointment of a person as a liquidator in his place.
(Added 3 of 1997 s. 41)
(3)
On an application under subsection (2) the court shall either make an appointment or decline to make one.
(Added 3 of 1997 s. 41)
(4)
Where a liquidator is appointed by the court under subsection (3), the liquidator shall give notice of his appointment to the company’s creditors and contributories in accordance with the directions of the court.
(Added 3 of 1997 s. 41)
(5)
In a notice under subsection (4), the liquidator shall state his intention to summon meetings of the company’s creditors and contributories, in accordance with section 206, for the purpose of determining—
(a)
whether or not an application is to be made to the court for the appointment of a committee of inspection to act with the liquidator; and
(b)
who are to be the members of the committee, if appointed.
(Added 3 of 1997 s. 41)
(6)
To avoid doubt, if a person appointed as a provisional liquidator of a company under section 193 continues to act as the provisional liquidator of the company under subsection (1)(aa) on a winding-up order being made, the person is a provisional liquidator holding office by virtue of subsection (1)(aa).
(Added 14 of 2016 s. 34)
[cf. 1929 c. 23 s. 185 U.K.]
195.
Provisions where person other than Official Receiver is appointed liquidator
Where in the winding up of a company by the court a person other than the Official Receiver is appointed provisional liquidator or liquidator under section 194, that person—
(Amended 46 of 2000 s. 25)
(a)
shall forthwith give notice of his appointment to the Registrar in the specified form and give security in the prescribed manner to the satisfaction of the Official Receiver;
(Replaced 46 of 2000 s. 25. Amended 28 of 2003 s. 79)
(b)
shall give the Official Receiver such information and such access to and facilities for inspecting the books and documents of the company, and generally such aid as may be requisite for enabling that officer to perform his duties under this Ordinance.
[cf. 1929 c. 23 s. 186 U.K.]
196.
General provisions as to liquidators
(1)
A liquidator appointed under
section 194 may resign or, on cause shown, be removed by the court.
(Replaced 46 of 2000 s. 26. Amended 14 of 2016 s. 35)
(1A)
A provisional liquidator appointed under section 194(1A) shall be remunerated—
(a)
in accordance with a scale of fees approved from time to time by the Official Receiver; or
(b)
on such other basis as the Official Receiver approves in writing.
(Added 46 of 2000 s. 26)
(1B)
Subsection (2) applies to a provisional liquidator holding office by virtue of section 194(1)(aa) as it applies to a liquidator (other than the Official Receiver) and to avoid doubt, subsection (2) does not apply to determine the remuneration of the provisional liquidator in respect of the period before the making of the winding-up order.
(Added 14 of 2016 s. 35)
(2)
Subject to subsection (1A), where a person other than the Official Receiver is appointed liquidator, he shall receive such remuneration by way of percentage or otherwise as is determined—
(Amended 46 of 2000 s. 26)
(a)
where there is a committee of inspection, by agreement between the liquidator and the committee of inspection; or
(b)
where there is no committee of inspection or the liquidator and the committee of inspection fail to agree, by the court,
and if two or more persons are appointed liquidators, their remuneration shall be distributed among them in such proportions as may be determined by the committee of inspection or the court, as the case may be.
(Replaced 25 of 1985 s. 3)
(2A)
If the Official Receiver is of the opinion that the remuneration of a liquidator as determined under subsection (2)(a) should be reviewed the Official Receiver may apply to the court, and the court may make an order confirming, increasing or reducing the remuneration of the liquidator.
(Added 25 of 1985 s. 3)
(3)
A vacancy in the office of a liquidator appointed by the court shall be filled by the court.
(4)
If more than one liquidator is appointed by the court, the court shall declare whether any act by this Ordinance or the Companies Ordinance (Cap. 622) required or authorized to be done by the liquidator is to be done by all or any one or more of the persons appointed.
(Amended 28 of 2012 ss. 912 & 920)
(5)
(Repealed 14 of 2016 s. 35)
[cf. 1929 c. 23 s. 188 U.K.]
197.
Custody of company’s property
Where a winding-up order has been made or where a provisional liquidator has been appointed, the liquidator, or the provisional liquidator, as the case may be, shall take into his custody, or under his control, all the property and things in action to which the company is or appears to be entitled.
[cf. 1929 c. 23 s. 189 U.K.]
198.
Vesting of property of company in liquidator
Where a company is being wound up by the court, the court may on the application of the liquidator by order direct that all or any part of the property of whatsoever description belonging to the company or held by trustees on its behalf shall vest in the liquidator by his official name, and thereupon the property to which the order relates shall vest accordingly, and the liquidator may, after giving such indemnity, if any, as the court may direct, bring or defend in his official name any action or other legal proceeding which relates to that property or which it is necessary to bring or defend for the purpose of effectually winding up the company and recovering its property.
[cf. 1929 c. 23 s. 190 U.K.]
199.
Powers of liquidator in winding up by court
(1)
Subject to section 193(3), this section applies to a liquidator in a winding up by the court but does not apply to—
(a)
the Official Receiver holding office as a provisional liquidator by virtue of section 194(1)(a); or
(b)
a provisional liquidator holding office by virtue of section 194(1)(aa) or (1A).
(2)
A liquidator may exercise any of the powers specified in Part 1 or 2 of Schedule 25 only with the sanction of the court or the committee of inspection.
(3)
Except as provided in subsection (4), a liquidator may exercise any of the powers specified in Part 3 of Schedule 25.
(4)
A liquidator (other than the Official Receiver) may only exercise the power specified in item 8 of Part 3 of Schedule 25—
(a)
with the sanction of the court or the committee of inspection; or
(b)
without the sanction if the liquidator has, before exercising the power, given at least 7 days’ notice of the intention to exercise the power—
(i)
(if there is a committee of inspection) to the members of the committee; or
(ii)
(if there is no committee of inspection) to the creditors.
(5)
The exercise by a liquidator of the powers conferred by this section is subject to the control of the court.
(6)
A creditor or contributory may apply to the court on the exercise or proposed exercise of any of those powers.
(Replaced 14 of 2016 s. 36)
199A.
Powers of Official Receiver holding office as provisional liquidator by virtue of section 194(1)(a)
(1)
The Official Receiver holding office as provisional liquidator by virtue of section 194(1)(a) may—
(a)
exercise any of the powers specified in Part 3 of Schedule 25; and
(b)
exercise any of the powers specified in Part 1 or 2 of Schedule 25 only with the sanction of the court.
(2)
The exercise by the Official Receiver of the powers conferred by this section is subject to the control of the court.
(3)
A creditor or contributory may apply to the court on the exercise or proposed exercise of any of those powers.
(Added 14 of 2016 s. 37)
199B.
Powers of provisional liquidator holding office by virtue of section 194(1)(aa) or (1A)
(1)
Except as provided in subsection (3), a provisional liquidator holding office by virtue of section 194(1)(aa) may exercise any of the powers specified in Part 1, 2 or 3 of Schedule 25 only with the sanction of the court.
(2)
Except as provided in subsection (4), a provisional liquidator holding office by virtue of section 194(1A) may exercise any of the powers specified in Part 1, 2 or 3 of Schedule 25 only with the sanction of the court or the Official Receiver.
(3)
A provisional liquidator holding office by virtue of section 194(1)(aa) may without the sanction of the court—
(a)
take into the provisional liquidator’s custody, or under the provisional liquidator’s control, all the property and things in action to which the company is or appears to be entitled; and
(b)
dispose of the specified assets of the company to a person other than a relevant person.
(4)
A provisional liquidator holding office by virtue of section 194(1A) may without the sanction of the court or the Official Receiver—
(a)
take into the provisional liquidator’s custody, or under the provisional liquidator’s control, all the property and things in action to which the company is or appears to be entitled; and
(b)
dispose of the specified assets of the company to a person other than a relevant person.
(5)
The Official Receiver is not personally liable for costs for any refusal to grant sanction under subsection (2) or (4).
(6)
The exercise by a provisional liquidator of the powers conferred by this section is subject to the control of the court.
(7)
A creditor or contributory may apply to the court on the exercise or proposed exercise of any of those powers.
(8)
In this section—
relevant person
(有關人士
), in relation to a company, means—(a)
a director or shadow director of the company; or
(b)
an associate, within the meaning of sections 265A(2), 265B and 265C, of the company or of any such director or shadow director;
specified assets
(指明資產
) means any perishable goods or other assets (excluding derivatives, warrants, options, shares and things in action) the estimated value of which—(a)
is less than $100,000; and
(b)
is likely to significantly diminish if they are not immediately disposed of.
(Added 14 of 2016 s. 37)
200.
Exercise and control of liquidator’s powers
(1)
Subject to the provisions of this Ordinance, the liquidator of a company which is being wound up by the court shall, in the administration of the assets of the company and in the distribution thereof among its creditors, have regard to any directions that may be given by resolution of the creditors or contributories at any general meeting, or by the committee of inspection, and any directions given by the creditors or contributories at any general meeting shall in case of conflict be deemed to override any directions given by the committee of inspection.
(2)
The liquidator may summon general meetings of the creditors or contributories for the purpose of ascertaining their wishes, and it shall be his duty to summon meetings at such times as the creditors or contributories, by resolution, either at the meeting appointing the liquidator or otherwise, may direct, or whenever requested in writing to do so by one-tenth in value of the creditors or contributories as the case may be.
(3)
The liquidator may apply to the court in manner prescribed for directions in relation to any particular matter arising under the winding up.
(4)
Subject to the provisions of this Ordinance, the liquidator shall use his own discretion in the administration of the assets and the distribution thereof among the creditors.
(Amended 6 of 1984 s. 141)
(5)
If any person is aggrieved by any act or decision of the liquidator, that person may apply to the court, and the court may confirm, reverse, or modify the act or decision complained of, and make such order in the premises as it thinks just.
[cf. 1929 c. 23 s. 192 U.K.]
201.
Books to be kept by liquidator
Every liquidator of a company which is being wound up by the court shall keep, in manner prescribed, proper books in which he shall cause to be made entries or minutes of proceedings at meetings, and of such other matters as may be prescribed, and any creditor or contributory may, subject to the control of the court, personally or by his agent inspect any such books.
[cf. 1929 c. 23 s. 193 U.K.]
202.
Payments of liquidator into bank or Treasury
(1)
Every liquidator other than the Official Receiver of a company which is being wound up by the court shall, in such manner and at such times as the Official Receiver directs, pay the money received by him to the Companies Liquidation Account at the bank where such account is kept, and when the Official Receiver is the liquidator of such company he shall pay all moneys received by him in such capacity into the Companies Liquidation Account:
Provided that the Official Receiver may, on the application of the liquidator, authorize the liquidator to make his payments into and out of any other bank specified by the liquidator in such application, and thereupon those payments shall be made in the prescribed manner.
(Amended 6 of 1984 s. 142; 30 of 1999 s. 16)
(2)
Subject to the proviso to subsection (1), where any such liquidator (other than the Official Receiver) receives any money in such capacity, he shall—
(a)
in the case of a sum not exceeding $50,000, pay the money without any deductions therefrom to the Companies Liquidation Account not later than 14 days after its receipt;
(b)
in the case of any other sum, forthwith pay the money without any deductions therefrom to the Companies Liquidation Account.
(Replaced 30 of 1999 s. 16)
(2A)
Where a liquidator retains any sum (including part of any sum) in contravention of subsection (2)(a) or (b), then, unless he explains the retention to the satisfaction of the court, he shall pay interest on the amount so retained at the rate of 20 per cent per annum, and shall be liable to disallowance of all or such part of his remuneration as the court may think just, and to be removed from his office by the court, and shall be liable to pay any expenses occasioned by reason of his default.
(Added 30 of 1999 s. 16)
(3)
A liquidator of a company which is being wound up by the court shall not pay any sums received by him as liquidator into his private banking account.
[cf. 1929 c. 23 s. 194 U.K.]
203.
Audit of liquidator’s accounts
(1)
The Official Receiver may at any time require a liquidator (other than the
Official Receiver) of a company that is being wound up by the court to provide the
Official Receiver, within the time limit specified by the Official Receiver, with an
account of the liquidator’s receipts and payments as liquidator.
(Replaced 22 of 2023 s. 19)
(2)
If a requirement is made under subsection (1), the liquidator must provide the
account in the specified form within the time limit specified by the Official
Receiver.
(Replaced 22 of 2023 s. 19)
(3)
The liquidator shall furnish the Official Receiver with such vouchers and
information relating to the account as he requires, and the Official Receiver may at
any time require the production of, and inspect, any books or accounts kept by the liquidator.
(Replaced 38 of 1987 s. 2)
(3A)
The Official Receiver may at any time cause the account to be audited.
(Added 38 of 1987 s. 2)
(4)
When the account has been audited, the liquidator must deliver a copy of the
account to each of the specified entities for filing.
(Replaced 22 of 2023 s. 19)
(4A)
If the Official Receiver decides that the account need not be audited, the
liquidator must, as soon as practicable after the decision, deliver a copy of the
account to each of the specified entities for filing.
(Added 22 of 2023 s. 19)
(4B)
If a copy of the account is delivered by the liquidator to a specified entity
under subsection (4) or (4A), the entity—
(a)
must keep the copy of the account so delivered to the entity in the manner
that the entity thinks fit; and
(b)
must cause the copy of the account so kept by the entity to be open on
payment of the prescribed fee to the inspection of any creditor, or any person
having an interest, in the manner that the entity thinks fit.
(Added 22 of 2023 s. 19)
(5)
The liquidator shall, when the account has been audited or, when he has been
notified that the Official Receiver has decided that the account need not be
audited,
send
a printed copy of the account or summary by post to every creditor and contributory:
(Amended 38 of 1987 s. 2; 14 of 2016 s. 38)
Provided that the Official
Receiver may in any case dispense with compliance with this subsection.
(Replaced 6 of 1984 s. 143)
(6)
Notwithstanding the fact that a liquidator has been notified that the Official
Receiver has decided that the account need not be audited, the Official Receiver may
subsequently cause the account to be audited, and in that event—
(a)
the liquidator must deliver a copy of the audited account to each of the
specified entities for filing;
(Replaced 22 of 2023 s. 19)
(ab)
a specified entity must keep the copy of the audited account so delivered
to the entity in the manner that the entity thinks fit;
(Added 22 of 2023 s. 19)
(ac)
a specified entity must cause the copy of the audited account so kept by
the entity to be open on payment of the prescribed fee to the inspection of any
creditor, or any person having an interest, in the manner that the entity thinks
fit; and
(Added 22 of 2023 s. 19)
(b)
the liquidator shall
send
a printed copy of the account or summary by post to every creditor and contributory:
(Amended 14 of 2016 s. 38)
Provided that the
Official Receiver may in any case dispense with compliance with this paragraph.
(Added 38 of 1987 s. 2)
(7)
In this section—
[cf. 1929 c. 23 s. 195 U.K.]
204.
Control of Official Receiver over liquidators
(1)
The Official Receiver shall take cognizance of the conduct of liquidators of companies which are being wound up by the court, and, if a liquidator does not faithfully perform his duties and duly observe all the requirements imposed on him by statute, rules, or otherwise with respect to the performance of his duties, or if any complaint is made to the Official Receiver by any creditor or contributory in regard thereto, the Official Receiver shall inquire into the matter, and take such action thereon as he may think expedient.
(2)
The Official Receiver may at any time require any liquidator of a company which is being wound up by the court to answer any inquiry in relation to any winding up in which he is engaged, and may, if he thinks fit, apply to the court to examine him or any other person on oath concerning the winding up.
(3)
The Official Receiver may also direct an investigation to be made of the books and vouchers of the liquidator.
(Amended 6 of 1984 s. 144)
[cf. 1929 c. 23 s. 196 U.K.]
205.
Release of liquidators
(1)
This section applies if the liquidator of a company that is being wound up by the court—
(a)
has—
(i)
realized all the property of the company, or so much of the property of the company that, in the opinion of the liquidator, can be realized without needlessly protracting the liquidation;
(ii)
distributed a final dividend, if any, to the creditors; and
(iii)
adjusted the rights of the contributories among themselves, and made a final return, if any, to those contributories;
(b)
has resigned or been removed from the office of liquidator; or
(c)
has passed away.
(Replaced 14 of 2016 s. 39)
(1A)
The liquidator or (if subsection (1)(c) applies) the personal representative of the liquidator may apply to the court for the release of the liquidator.
(Added 14 of 2016 s. 39)
(1B)
On an application under subsection (1A), the court is to cause a report on the accounts of the liquidator to be prepared.
(Added 14 of 2016 s. 39)
(1C)
On the liquidator or the personal representative of the liquidator complying with all the requirements of the court, the court may grant or withhold the release after having considered—
(a)
the report; and
(b)
any objection against the release urged by a creditor or contributory or any person interested.
(Added 14 of 2016 s. 39)
(2)
Where the release of a liquidator is withheld, the court may, on the application of any creditor or contributory, or person interested, make such order as it thinks just, charging the liquidator with the consequences of any act or default which he may have done or made contrary to his duty.
(3)
An order of the court releasing the liquidator shall discharge him from all liability in respect of any act done or default made by him in the administration of the affairs of the company, or otherwise in relation to his conduct as liquidator, but any such order—
(Amended 14 of 2016 s. 39)
(a)
does not prevent the exercise of the court’s powers under section 276; and
(b)
may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact.
(Amended 14 of 2016 s. 39)
(4)
Where the liquidator has not previously resigned or been removed, his release shall operate as a removal of him from his office.
[cf. 1929 c. 23 s. 197 U.K.]
205A.
(1)
business day
(辦公日
) means a day that is not any of the following—(a)
a general holiday;
(b)
a Saturday;
(c)
a black rainstorm warning day or gale warning day as defined by section 71(2) of the Interpretation and General Clauses Ordinance (Cap. 1);
electronic address
(電子地址
) means any sequence or combination of letters, characters, numbers or symbols of any language or, any number, used for the purpose of sending or receiving a document or information by electronic means;electronic record
(電子紀錄
) means a record generated in digital form by an information system, which can be—(a)
transmitted within an information system or from one information system to another; and
(b)
stored in an information system or other medium;
information
(資訊、資料
) includes data, text, images, sound codes, computer programmes, software and databases, and any combination of them;information system
(資訊系統
) means a system that—(a)
processes information;
(b)
records information;
(c)
can be used to cause information to be recorded, stored or otherwise processed in other information systems (wherever situated); and
(d)
can be used to retrieve information, whether the information is recorded or stored in the system itself or in other information systems (wherever situated).
(2)
(a)
a person sends a document, or supplies information, by post if the person posts a prepaid envelope containing the document or information addressed to the last known address of the recipient; and
(b)
the document or information is to be regarded as having been received on the second business day after the day on which the document or information is sent or supplied, unless the contrary is proved.
(3)
For the purposes of section 207K and Division 6—
(a)
a document or information is sent or supplied by electronic means if it is sent or supplied in the form of an electronic record to an information system;
(b)
a document or information is to be regarded as sent or supplied by electronic means if it is sent or supplied by facsimile transmission; and
(c)
a reference to an electronic address includes a facsimile number.
(Added 14 of 2016 s. 41)
205B.
Interpretation: circulation date
For the purposes of section 205A—
(a)
circulation date
(傳閱日期
), in relation to a proposed written resolution, means, subject to paragraph (b), the date on which copies of the resolution are sent to members of a committee of inspection for the purposes of section 207E(1);(b)
if the copies of the resolution are sent to the members—
(i)
on the same day under section 207E(2), that day is taken to be the circulation date; and
(ii)
on different days under section 207E(2), the first of those days is taken to be the circulation date.
(Added 14 of 2016 s. 41)
206.
Meetings of creditors and contributories to consider appointment of committee of inspection; constitution of committee of inspection
(Amended 14 of 2016 s. 42)
(1)
When a winding-up order has been made by the court, it shall be the business of the separate meetings of creditors and contributories summoned for the purpose of determining whether or not an application should be made to the court for appointing a liquidator in place of the provisional liquidator, to determine further the following—
(Amended 3 of 1997 s. 42; 14 of 2016 s. 42)
(a)
whether or not an application is to be made to the court for the appointment of a committee of inspection to act with the liquidator; and
(b)
if a committee of inspection is appointed—subject to subsections (3) and (4), who are to be the members of the committee.
(2)
Subject to subsections (3) and (4), the court may make any appointment and order required to give effect to any such determination, and if there is a difference between the determinations of the meetings of the creditors and contributories in respect of the matters referred to in subsection (1) the court shall decide the difference and make such order thereon as the court may think fit.
(3)
A committee of inspection appointed under this Ordinance must consist of not less than 3, and not more than 7 members.
(Added 14 of 2016 s. 42)
(4)
However, a liquidator may apply to the court for an order to vary the minimum or maximum number of members mentioned in subsection (3) and the court may make an order that it thinks fit.
(Added 14 of 2016 s. 42)
(5)
A committee of inspection appointed under this Ordinance must consist of creditors and contributories—
(a)
in a proportion agreed on by the meetings of creditors and contributories; or
(b)
in the event of a difference, in a proportion determined by the court.
(Added 14 of 2016 s. 42)
(6)
A body corporate may be a member of the committee but cannot act as a member otherwise than by a representative authorized under section 207A.
(Added 14 of 2016 s. 42)
(Amended 14 of 2016 s. 42)
[cf. 1929 c. 23 s. 198 U.K.]
206A.
Meetings of committee of inspection
(1)
Subject to subsections (2), (3) and (4), meetings of a committee of inspection are to be held when and where determined by the liquidator.
(2)
The liquidator must summon a first meeting of the committee to be held within 6 weeks from the date of the appointment of—
(a)
the liquidator; or
(b)
the committee,
whichever is the later.
(3)
After the first meeting, if the liquidator receives a request in writing to summon a meeting of the committee from a member of the committee or the representative of a member, the liquidator must summon the requested meeting for a date not later than 21 days after the date the request is received.
(4)
If the committee resolves at the first meeting or any subsequent meeting that a meeting is to be held—
(a)
on a specified date, the liquidator must summon a meeting for that date; or
(b)
on a specified date at a specified time, the liquidator must summon a meeting for that date and that time.
(5)
Subject to subsection (6), the liquidator must give 5 days’ written notice of the date, time and place of a meeting to every member of the committee.
(6)
If the liquidator determines to hold a meeting in the manner referred to in section 207B, the liquidator must give 10 days’ written notice of the date, time and place of the meeting to every member of the committee.
(7)
The notice of a meeting may be given to a member’s representative designated for that purpose instead of a member.
(8)
The requirement to give notice may be waived by or on behalf of a member before or at a meeting.
(9)
In calculating the number of days mentioned in subsections (5) and (6), Saturdays and general holidays are to be excluded.
(Added 14 of 2016 s. 43)
207.
Proceedings of committee of inspection
(Amended 14 of 2016 s. 44)
(1)-(2)
(Repealed 14 of 2016 s. 44)
(3)
A committee of inspection may act by a majority of their members present at a meeting, but shall not act unless a majority of the committee are present.
(Amended 14 of 2016 s. 44)
(4)
A member of the committee may resign by notice in writing signed by him and delivered to the liquidator.
(5)
If a member of the committee becomes bankrupt, or compounds or arranges with his creditors, or is absent from 5 consecutive meetings of the committee without the leave of those members who together with himself represent the creditors or contributories, as the case may be, his office shall thereupon become vacant.
(6)
A member of the committee may be removed by a resolution at a meeting of creditors, if he represents creditors, or of contributories, if he represents contributories, of which 7 days’ notice has been given, stating the object of the meeting.
(Amended 14 of 2016 s. 44)
(7)
Subject to subsections (7A) and (7B), on a vacancy occurring in the committee the liquidator shall forthwith summon a meeting of creditors or of contributories, as the case may require, to fill the vacancy, and the meeting may, by a resolution, re-appoint the same or appoint another creditor or contributory to fill the vacancy.
(Amended 6 of 1984 s. 145; 14 of 2016 s. 44)
(7A)
If the liquidator, having regard to the position in the winding up, is of the opinion that it is unnecessary for the vacancy in the committee to be filled, the liquidator may apply to the court and the court may make an order that the vacancy—
(a)
does not have to be filled; or
(b)
does not have to be filled except in the circumstances specified in the order.
(Added 14 of 2016 s. 44)
(7B)
The vacancy does not have to be filled if—
(a)
the liquidator and a majority of the continuing members of the committee agree that, having regard to the position in the winding up, it is unnecessary for the vacancy to be filled; and
(b)
the total number of continuing members of the committee is not reduced—
(i)
to less than 3; or
(ii)
if the court has varied the minimum number of members, to less than the minimum number ordered by the court.
(Added 14 of 2016 s. 44)
(8)
The continuing members of the committee may continue to act despite any vacancy in the committee if the total number of continuing members of the committee is not reduced—
(a)
to less than 3; or
(b)
if the court has varied the minimum number of members, to less than the minimum number ordered by the court.
(Replaced 14 of 2016 s. 44)
[cf. 1929 c. 23 s. 199 U.K.]
207A.
Representatives of members of committee of inspection
(1)
Subject to subsection (5), a member of the committee of inspection may, in relation to the business of the committee, be represented by a person authorized by the member for that purpose.
(2)
A person is authorized by a member only if the person holds—
(a)
a general power of attorney from the member; or
(b)
a letter of authority that—
(i)
entitles the person to act as the member’s representative (either generally or specifically); and
(ii)
is signed—
(A)
(if the member is a natural person) by the member; or
(B)
(in any other cases) by or on behalf of the member.
(3)
A proxy given by a member of a committee of inspection in relation to a meeting of the creditors, of the members or of the contributories is treated as a letter of authority to act generally as the member’s representative in relation to the committee, unless the proxy contains a statement to the contrary.
(4)
The chairperson of a meeting of the committee may—
(a)
call on a person claiming to act as a member’s representative to produce the person’s general power of attorney or letter of authority; and
(b)
exclude the person from the meeting if it appears that the person’s authority is deficient.
(5)
A member of the committee must not be represented by a body corporate, an undischarged bankrupt or a person who is subject to a voluntary arrangement with the person’s creditors.
(6)
A person must not—
(a)
on the same committee, act as the representative of more than one member at any time; or
(b)
act both as a member of the committee and as the representative of another member.
(7)
If the representative of a member signs a document on behalf of the member, the representative must state below the signature whether the representative is signing under a general power of attorney or under a letter of authority.
(8)
The acts of the committee are valid despite any defect in the authorization or qualifications of a member’s representative.
(Added 14 of 2016 s. 45)
207B.
Remote attendance at meetings of committee of inspection
(1)
This section applies to a meeting of a committee of inspection held under this Ordinance, except a meeting held under rule 74 of the Companies (Winding-up) Rules (Cap. 32 sub. leg. H).
(2)
If the liquidator considers it appropriate, the meeting may be held and conducted in a manner that enables persons who are not present together at the same place to attend it.
(3)
If the meeting is held and conducted in the manner referred to in subsection (2), a person attends the meeting if the person is able to exercise any rights of the person to speak and vote at the meeting.
(4)
For the purposes of this section—
(a)
a person is able to exercise the right to speak at a meeting if the person, during the meeting, is in a position to communicate to all those attending the meeting, any information or opinion the person has on the business of the meeting; and
(b)
a person is able to exercise the right to vote at a meeting if—
(i)
the person is able to vote, during the meeting, on resolutions or determinations put to the vote at the meeting; and
(ii)
in determining whether such resolutions or determinations are passed, the person’s vote can be taken into account at the same time as the votes of all the other persons attending the meeting.
(5)
If the meeting is to be held and conducted in the manner referred to in subsection (2), the liquidator must make the arrangements the liquidator considers appropriate to—
(a)
enable those attending the meeting to exercise their rights to speak and vote;
(b)
verify the identity of the persons attending the meeting; and
(c)
ensure the security of any technology used to enable attendance.
(6)
The requirement under section 206A(6) for notice to be given of a specified place for a meeting may be satisfied by specifying the arrangements the liquidator proposes to enable persons to exercise their rights to speak and vote if, in the reasonable opinion of the liquidator—
(a)
a meeting will be attended by persons who will not be present together at the same place; and
(b)
it is not necessary or expedient to specify a place for the meeting.
(7)
In making the arrangements mentioned in subsection (5) and in forming the opinion mentioned in subsection (6)(b), the liquidator must have regard to the legitimate interests of the members of the committee or their representatives attending the meeting in the efficient conduct of the business of the meeting.
(8)
Despite subsection (6), the liquidator must specify a place for the meeting if—
(a)
because of subsection (6), the notice of the meeting under section 206A(6) is given without a place specified for the meeting; and
(b)
at least one member of the committee requests the liquidator to specify a place for the meeting in accordance with section 207C.
(Added 14 of 2016 s. 45)
207C.
Procedure for requests that place for meeting should be specified under section 207B
(1)
This section applies to a request under section 207B(8)(b) to specify a place for the meeting.
(2)
The request must be made at least 5 days before the date of the meeting that is stated in the notice of the meeting given by the liquidator under section 206A(6).
(3)
If the liquidator considers that the request has been made in accordance with this section, the liquidator must—
(a)
give written notice to all the persons who were given notice of the meeting under section 206A(6)—
(i)
that the meeting is to be held at a specified place; and
(ii)
as to whether the date and time are to remain the same or not;
(b)
set a date for the meeting, which must not be later than 7 days after the original date, and a time and place for it; and
(c)
give 5 days’ notice of the date, time and place to all the persons who were given notice of the meeting under section 206A(6).
(4)
The notices required by subsection (3)(a) and (c) may be given at the same time or at different times.
(5)
If the liquidator has specified a place for the meeting in response to a request to which this section applies, the liquidator, or a person appointed by the liquidator in writing, must attend the meeting in person at that place.
(6)
In calculating the number of days mentioned in subsections (2) and (3), Saturdays and general holidays are to be excluded.
(Added 14 of 2016 s. 45)
207D.
Written resolution of committee of inspection
(1)
Anything that may be done by a resolution passed at a meeting of the committee of inspection may be done, without a meeting and without any previous notice being required, by a written resolution of the committee.
(2)
A reference to the date of passing a resolution or the date of a meeting is, in relation to a written resolution of the committee, the date on which the written resolution is passed under section 207G(1).
(3)
A written resolution of the committee has effect as if passed by members of the committee at a meeting of the committee.
(4)
Subsection (1) does not apply to a resolution sanctioning the making of calls by a liquidator under section 226.
(5)
A resolution of the committee may be proposed as a written resolution only by the liquidator.
(Added 14 of 2016 s. 45)
207E.
Circulation of written resolution
(1)
A liquidator may seek to obtain the agreement of the members of the committee of inspection to a proposed written resolution by sending to every member of the committee a copy of the resolution.
(2)
The liquidator may send a copy of the resolution under subsection (1)—
(a)
by sending a copy to every member at the same time so far as reasonably practicable;
(b)
if it is possible to do so without undue delay, by sending—
(i)
the same copy to each member in turn; or
(ii)
separate copies to each of a number of members in turn; or
(c)
by sending copies to some members at the same time and sending a copy or copies to the other members in accordance with paragraph (b).
(3)
For the purposes of this section, a copy of the proposed written resolution may be sent to a representative of a member designated for that purpose instead of the member and it is to be regarded as a copy sent to the member.
(4)
The liquidator must ensure that the copy of the proposed written resolution sent under this section contains, or is accompanied by, the following information—
(a)
how to signify agreement to the resolution under section 207G;
(b)
the date by which the resolution must be passed if it is not to lapse under section 207H(1);
(c)
the right of the member to request a meeting under section 207F(1); and
(d)
the date by which the request must be received by the liquidator under section 207F(2).
(5)
The validity of the resolution, if passed, is not affected by a contravention of subsection (4).
(Added 14 of 2016 s. 45)
207F.
Request for summoning meeting to consider resolution
(1)
A member of the committee of inspection or the representative of a member may request the liquidator to summon a meeting of the committee to consider the matters raised by the resolution sent under section 207E.
(2)
The request—
(a)
must be in writing; and
(b)
must be received by the liquidator within 7 business days from the circulation date.
(3)
A request made in accordance with this section takes effect as a request made under section 206A(3).
(Added 14 of 2016 s. 45)
207G.
Procedure for signifying agreement to proposed written resolution
(1)
A written resolution is passed when—
(a)
all the members of the committee of inspection have signified their agreement to it; or
(b)
a majority of the members of the committee have signified their agreement to it, and a period of 7 business days beginning on the circulation date has ended without any request to summon a meeting having been made under section 207F(1).
(2)
A member of the committee signifies agreement to a proposed written resolution when the liquidator receives from the member or the member’s representative a written document—
(a)
identifying the resolution to which it relates; and
(b)
indicating the member’s agreement to the resolution.
(3)
A member’s agreement to a written resolution, once signified, may not be revoked.
(Added 14 of 2016 s. 45)
207H.
Period for agreeing to proposed written resolution
(1)
A proposed written resolution lapses if—
(a)
it is not passed before the end of the period of 28 days beginning on the circulation date; or
(b)
the liquidator receives from a member of the committee of inspection or the representative of a member a request made in accordance with section 207F to summon a meeting.
(2)
The agreement of a member of the committee to a proposed written resolution is ineffective if signified after the resolution lapses under subsection (1).
(Added 14 of 2016 s. 45)
207I.
Liquidator’s duty to notify members of committee of inspection that written resolution has been passed
(1)
If a written resolution of the committee of inspection is passed, the liquidator must, within 15 days after the resolution is passed, send a notice of this fact to every member of the committee.
(2)
A notice under this section may be sent to the representative of a member designated for that purpose instead of the member.
(Added 14 of 2016 s. 45)
207J.
Liquidator’s duty to keep record of written resolution that has been passed
A liquidator must keep—
(a)
a copy of every resolution passed as a written resolution of the committee of inspection; and
(b)
a note that all or a majority of the members of the committee have signified agreement to the relevant written resolution.
(Added 14 of 2016 s. 45)
207K.
Communication with liquidator by electronic means for the purpose of written resolution
(1)
If the conditions in subsection (2) are satisfied, a member of a committee of inspection may send to a liquidator by electronic means—
(a)
a request under section 207F(1); or
(b)
a document signifying agreement to a proposed written resolution referred to in section 207G(2).
(2)
The conditions are that—
(a)
the liquidator—
(i)
has agreed, generally or specifically that a document may be sent to the liquidator by electronic means; and
(ii)
has not revoked the agreement; or
(b)
the liquidator is to be regarded as having so agreed as described in subsection (4).
(3)
For the purposes of subsection (1), a document is sent to a liquidator by electronic means if—
(a)
the document is sent to an electronic address—
(i)
specified for the purpose by the liquidator generally or specifically; or
(ii)
regarded under subsection (4) as having been so specified for the purpose;
(b)
the document is sent in a form, and by a means, that, in the reasonable opinion of the member, will enable the liquidator to—
(i)
read the document, or, to the extent that it consists of images, to see the document with the naked eye or with a suitable corrective lens; and
(ii)
retain a copy of the document;
(c)
the document is sent in the manner as described in section 205A(3)(a) or (b); and
(d)
the document is authenticated in one of the following ways—
(i)
the identity of the member is confirmed in a manner specified by the liquidator;
(ii)
if the manner has not been specified, the communication contains, or is accompanied by, a statement of the identity of the member, the truth of which the liquidator has no reason to doubt.
(4)
If the liquidator has given an electronic address in any document containing or accompanying a proposed written resolution of the committee, the liquidator is to be regarded as having agreed, subject to any conditions or limitations that the liquidator may have specified in the document, that any document relating to that resolution may be sent by electronic means to that address.
(5)
For the purposes of subsection (2)(a)(ii), an agreement to allow sending documents by electronic means is only to be regarded as having been revoked if the liquidator has given the member of the committee a notice of revocation of at least—
(a)
7 days; or
(b)
the period specified for the purpose in any agreement between the liquidator and the members,
whichever is the longer.
(6)
If a document is sent to the liquidator in accordance with this section, unless the contrary is proved, it is to be regarded as having been received by the liquidator at the end of the following period after it is sent—
(a)
the period specified for the purpose in any agreement between the member of the committee and the liquidator; or
(b)
if no period has been specified, 48 hours.
(7)
In calculating the period mentioned in subsection (6)(b), any part of a day that is not a business day is to be disregarded.
(8)
In this section, a reference to a member of a committee of inspection includes a representative of a member.
(Added 14 of 2016 s. 45)
207L.
Travelling expenses of members of committee of inspection
(1)
The liquidator must defray as an expense of the winding up any reasonable expenses incurred directly by a member of the committee of inspection or the representative of a member in respect of travelling within Hong Kong—
(a)
to attend the committee’s meetings; or
(b)
on the committee’s business.
(2)
The payment by the liquidator mentioned in subsection (1) is subject to the order of priority prescribed in this Ordinance.
(Added 14 of 2016 s. 45)
208.
Powers of court where no committee of inspection
Where in the case of a winding up there is no committee of inspection, the court may, on the application of the liquidator, do any act or thing or give any direction or permission which is by this Ordinance authorized or required to be done or given by the committee.
[cf. 1929 c. 23 s. 200 U.K.]
209.
Power to stay winding up
(1)
The court may at any time after an order for winding up, on the application either of the liquidator, or the Official Receiver, or any creditor or contributory, and on proof to the satisfaction of the court that all proceedings in relation to the winding up ought to be stayed, make an order staying the proceedings, either altogether or for a limited time, on such terms and conditions as the court thinks fit.
(2)
On any application under this section the court may, before making an order, require the Official Receiver to furnish to the court a report with respect to any facts or matters which are in his opinion relevant to the application.
(3)
A copy of every order made under this section shall forthwith be delivered by the company, or otherwise as may be prescribed, to the Registrar.
(Added 6 of 1984 s. 146)
[cf. 1929 c. 23 s. 202 U.K.]
209A.
Power of court to order winding up to be conducted as creditors’ voluntary winding up
(1)
The court may on the application of the liquidator or any creditor made—
(a)
in the case of a company in respect of which an order has been made under section 227F, not later than 3 months from the date of such order; and
(b)
in any other case, not later than 3 months from the date of a resolution to make such an application passed at any of the meetings (including an adjourned meeting) of creditors and of contributories held pursuant to section 194 or such further time as the court may permit,
order that the winding up of a company ordered to be wound up by the court shall, from the date of the order made on such application, be conducted as if the winding up were a creditors’ voluntary winding up.
(2)
Where an application is made under subsection (1), the court shall have regard to—
(a)
the wishes of the creditors and contributories of the company, as proved to it by sufficient evidence;
(b)
the progress of the winding up (including in particular assets realized, proofs of debts submitted by creditors and whether a statement of affairs, or a supplementary affidavit (if required), has been submitted under section 190);
(Amended 14 of 2016 s. 47)
(c)
whether any report has been made to the court under—
(i)
section 191(1); or
(ii)
section 191(2) that in the liquidator’s opinion a fraud has been committed;
(d)
whether any director, former director or other officer of the company has been convicted under the pre-amended Ordinance, this Ordinance or any other law for any offence involving fraud, dishonesty, fraudulent trading, misfeasance or breach of duty in relation to the affairs of the company;
(Amended 28 of 2012 ss. 912 & 920)
(e)
whether any criminal proceedings in respect of any offence referred to in paragraph (d) are contemplated or have been instituted against any person referred to in that paragraph;
(f)
whether the company forms part of a group of companies the affairs of which are proposed to be investigated or are being investigated under—
(Amended 28 of 2012 ss. 912 & 920)
(i)
a provision of the pre-amended Ordinance having a continuing effect under Schedule 11 to the Companies Ordinance (Cap. 622) or by virtue of section 23 of the Interpretation and General Clauses Ordinance (Cap. 1);
(ii)
this Ordinance; or
(iii)
any other law;
(Amended 28 of 2012 ss. 912 & 920)
(g)
whether there has been a failure on the part of the directors to provide a statement of affairs, or a supplementary affidavit (if required), which the court considers satisfactory or to co-operate with the Official Receiver or liquidator or to comply with any requirement under this Ordinance in relation to the winding up of the company;
(Amended 14 of 2016 s. 47)
(h)
whether any director or former director of any other company which has gone into liquidation within 5 years of the date when the company went into liquidation, has been directly or indirectly concerned in the management of the company;
(i)
the fact that the insolvency of the company is a matter of public concern; and
(j)
any other matter which the court considers appropriate in the particular circumstances.
(3)
Where an application has been made under subsection (1) in relation to a company in respect of which an order had been made under section 227F then, without affecting the generality of subsection (2)(a) and subject to subsection (4), the court shall before hearing the application direct that meetings of the creditors and contributories be called, held and conducted in such manner as the court may direct for the purpose of ascertaining the wishes of the creditors and contributories and may appoint a person to act as the chairman of any such meeting and to report the result of the meeting to the court.
(4)
Where the court is of the opinion that it is impractical to hold meetings of the creditors or of the contributories, the court may order that such other course of action as directed by the court be taken to ascertain the wishes of the creditors and contributories.
(5)
In an order made under this section, notwithstanding any other provision of this Ordinance, the court may, after taking into consideration the wishes of the creditors and contributories, direct either that the liquidator of the winding up by the court appointed under section 192 continue to act as the liquidator or appoint any other person to act as the liquidator.
(6)
Where an application is made under subsection (1)—
(a)
the liquidator shall; and
(b)
the Official Receiver may,
submit to the court a report with regard to the application.
(Replaced 46 of 2000 s. 28)
(7)
On the hearing of any application made under subsection (1), the Official Receiver may appear and call, examine or cross-examine any witness if he so thinks fit and may support or oppose the application.
(Replaced 59 of 1990 s. 2)
209B.
Consequences of an order under section 209A
Where an order is made under section 209A that the winding up of a company shall be conducted as if it were a creditors’ voluntary winding up—
(a)
the date of—
(i)
the commencement of the winding up shall be the date deemed under section 184 to be the date of the commencement of the winding up by the court;
(ii)
the appointment of the liquidator shall be the date of the appointment (or first appointment) of a provisional liquidator in the winding up by the court; and
(iii)
the order for winding up shall be the date on which the order for winding up by the court is made,
for any purpose for which the date of the commencement of the winding up, the date of the appointment of a liquidator or the date of the winding-up order respectively is relevant under this Ordinance;
(b)
(c)
the rights of a creditor or a contributory under section 257 shall not be affected;
(d)
the fees of the liquidator and any charges or expenses due and payable under section 296 or under any other provision in this Ordinance up to the date of the order made under section 209A shall be paid forthwith out of the assets of the company in priority to all the other claims;
(e)
the statement of the affairs of the company, and any supplementary affidavit in relation to that statement, required to be submitted under section 190 and the accounts of the liquidator up to the date of the order made under section 209A may be inspected by the creditors;
(Amended 14 of 2016 s. 48)
(f)
any creditor is entitled to have a copy of any document referred to in paragraph (e) on payment of reasonable photocopy charges (if any);
(g)
the court shall make such other orders as it considers appropriate to safeguard the books, records and documents of the company in the custody of the liquidator or the Official Receiver, and notwithstanding section 283 or any other provision of this Ordinance or the Companies Ordinance (Cap. 622) they shall not be disposed of otherwise than as specified in such order.
(Amended 28 of 2012 ss. 912 & 920)
(Added 59 of 1990 s. 2)
209C.
Transitional
(1)
Any application for an order that the winding up of a company ordered to be wound up by the court be conducted as if it were a creditors’ voluntary winding up made before the commencement of the Companies (Amendment) (No. 4) Ordinance 1990 (59 of 1990) (in this section referred to as the amending Ordinance) shall be considered or continued with as if the amending Ordinance had not been enacted.
(2)
The liquidator or any creditor of any company in respect of which an order for winding up by the court was made after 30 August 1984 and before the commencement of the amending Ordinance may, before the expiration of 3 months from that commencement, apply to the court for an order that such winding up be conducted as if it were a creditors’ voluntary winding up and the provisions of section 209A in force immediately before the commencement of the amending Ordinance shall apply to that application as if the amending Ordinance had not been enacted.
(Added 59 of 1990 s. 2)
210.
Settlement of list of contributories and application of assets
(1)
As soon as may be after making a winding-up order, the court shall settle a list of contributories, with power to rectify the register of members in all cases where rectification is required in pursuance of this Ordinance or the Companies Ordinance (Cap. 622), and shall cause the assets of the company to be collected, and applied in discharge of its liabilities:
(Amended 14 of 2016 s. 49)
Provided that, where it appears to the court that it will not be necessary to make calls on or adjust the rights of contributories, the court may dispense with the settlement of a list of contributories.
(2)
In settling the list of contributories, the court shall distinguish between persons who are contributories in their own right and persons who are contributories as being representatives of or liable for the debts of others.
[cf. 1929 c. 23 s. 203 U.K.]
211.
Delivery of property to liquidator
The court may, at any time after making a winding-up order, require any contributory for the time being on the list of contributories, and any trustee, receiver, banker, agent or officer of the company to pay, deliver, convey, surrender, or transfer forthwith, or within such time as the court directs, to the liquidator any money, property, or books and papers in his hands to which the company is prima facie entitled.
[cf. 1929 c. 23 s. 204 U.K.]
212.
Payment of debts due by contributory to company and extent to which set-off allowed
(1)
The court may, at any time after making a winding-up order, make an order on any contributory for the time being on the list of contributories to pay, in manner directed by the order, any money due from him or from the estate of the person whom he represents to the company, exclusive of any money payable by him or the estate by virtue of any call in pursuance of this Ordinance.
(2)
The court in making such an order may—
(a)
in the case of an unlimited company, allow to the contributory by way of set-off any money due to him or to the estate which he represents from the company on any independent dealing or contract with the company, but not any money due to him as a member of the company in respect of any dividend or profit; and
(b)
in the case of a limited company, make to any director or manager whose liability is unlimited or to his estate the like allowance.
(3)
In the case of any company, whether limited or unlimited, when all the creditors are paid in full, any money due on any account whatever to a contributory from the company may be allowed to him by way of set-off against any subsequent call.
[cf. 1929 c. 23 s. 205 U.K.]
213.
Power of court to make calls
(1)
The court may, at any time after making a winding-up order, and either before or after it has ascertained the sufficiency of the assets of the company, make calls on all or any of the contributories for the time being settled on the list of the contributories to the extent of their liability, for payment of any money which the court considers necessary to satisfy the debts and liabilities of the company, and the costs, charges, and expenses of winding up, and for the adjustment of the rights of the contributories among themselves, and make an order for payment of any calls so made.
(2)
In making a call the court may take into consideration the probability that some of the contributories may partly or wholly fail to pay the call.
[cf. 1929 c. 23 s. 206 U.K.]
214.
Payment into bank of moneys due to company
(1)
The court may order any contributory, purchaser or other person from whom money is due to the company to pay the amount due into such bank as the court may direct to the account of the liquidator instead of to the liquidator, and any such order may be enforced in the same manner as if it had directed payment to the liquidator.
(2)
All moneys and securities paid or delivered into any bank pursuant to this Part in the event of a winding up by the court shall be subject in all respects to the orders of the court.
(Amended 6 of 1984 s. 148)
[cf. 1929 c. 23 s. 207 U.K.]
215.
Order on contributory conclusive evidence
(1)
An order made by the court on a contributory shall, subject to any right of appeal, be conclusive evidence that the money, if any, thereby appearing to be due or ordered to be paid is due.
(2)
All other pertinent matters stated in the order shall be taken to be truly stated as against all persons and in all proceedings.
[cf. 1929 c. 23 s. 208 U.K.]
216.
Appointment of special manager
(1)
Where the Official Receiver becomes the liquidator of a company, whether provisionally or otherwise, he may, if satisfied that the nature of the estate or business of the company, or the interests of the creditors or contributories generally, or there are other grounds therefor, require the appointment of a special manager of the estate or business of the company other than himself, apply to the court, and the court may on such application, appoint a special manager of the said estate or business to act during such time as the court may direct, with such powers, including any of the powers of a receiver or manager, as may be entrusted to him by the court.
(Amended 6 of 1984 s. 149; 46 of 2000 s. 29)
(2)
The special manager shall give such security and account in such manner as the court may direct.
(3)
The special manager shall receive such remuneration as may be fixed by the court.
[cf. 1929 c. 23 s. 209 U.K.]
217.
Exclusion of creditors not proving in time
(1)
The court may fix a date on or before which creditors are to prove their debts or claims.
(2)
Any creditor who has not proved his debt or claim on or before the date fixed under subsection (1) shall be excluded from the benefit of the distribution made next after that date and from the benefit of any previous distribution.
(Replaced 6 of 1984 s. 150)
[cf. 1948 c. 38 s. 264 U.K.]
218.
Adjustment of rights of contributories
The court shall adjust the rights of the contributories among themselves, and distribute any surplus among the persons entitled thereto.
[cf. 1929 c. 23 s. 211 U.K.]
219.
Inspection of books by creditors and contributories
(1)
The court may, at any time after making a winding-up order, make such order for
inspection of the books and papers of the company by creditors and contributories as
the court thinks just.
(Amended 6 of 1984 s. 151; 28 of 2012 ss. 912 & 920)
(1A)
Where an order for inspection is made under subsection (1), creditors or contributories may, in accordance with the order but not further or otherwise—
(a)
inspect any books or papers in the possession of the company; or
(b)
if the books or papers are kept by the company by recording the contents of
the books or papers otherwise than in a legible form, inspect a reproduction of
the recording or the relevant part of it in a legible form.
(Added 28 of 2012 ss. 912 & 920)
(2)
Nothing in this section shall be taken as excluding or restricting any rights or powers conferred on a public officer by any enactment.
(Added 6 of 1984 s. 151)
[cf. 1929 c. 23 s. 212 U.K.]
220.
Power to order costs of winding up to be paid out of assets
The court may, in the event of the assets being insufficient to meet the costs, charges and expenses incurred in the winding up, make an order as to the payment thereof out of the assets in such order of priority as the court thinks just.
(Replaced 6 of 1984 s. 152)
[cf. 1948 c. 38 s. 267 U.K.]
221.
(Repealed 14 of 2016 s. 50)
222.
(Repealed 14 of 2016 s. 50)
222A.
(Repealed 14 of 2016 s. 50)
223.
(Repealed 6 of 1984 s. 154)
224.
Power to arrest absconding contributory or officer
The court, at any time either before or after making a winding-up order, on proof of probable cause for believing that a contributory or any past or present officer of the company has absconded or is about to quit Hong Kong or otherwise to abscond or to remove or conceal any of his property for the purpose of evading payment of calls or debts due to the company or of avoiding examination respecting the affairs of the company, may order that the contributory or officer be arrested and his books and papers and movable personal property seized and him and them safely kept until such time as the court may order.
(Replaced 6 of 1984 s. 155)
[cf. 1948 c. 38 s. 271 U.K.]
225.
Powers of court cumulative
Any powers by this Ordinance conferred on the court shall be in addition to and not in restriction of any existing powers of instituting proceedings against any contributory or officer or debtor of the company, or the estate of any contributory or officer or debtor, for the recovery of any call or other sums.
(Amended 6 of 1984 s. 156)
[cf. 1929 c. 23 s. 219 U.K.]
226.
Delegation to liquidator of certain powers of court
Provision may be made by general rules for enabling or requiring all or any of the powers and duties conferred and imposed on the court by this Ordinance in respect of the following matters—
(a)
the holding and conducting of meetings to ascertain the wishes of creditors and contributories;
(b)
the settling of lists of contributories and the rectifying of the register of members where required, and the collecting and applying of the assets;
(c)
the paying, delivery, conveyance, surrender or transfer of money, property, books or papers to the liquidator;
(d)
the making of calls;
(e)
the fixing of a date on or before which creditors are to prove their debts or claims,
(Replaced 6 of 1984 s. 157)
to be exercised or performed by the liquidator as an officer of the court, and subject to the control of the court:
Provided that the liquidator shall not, without the special leave of the court, rectify the register of members, and shall not make any call without either the special leave of the court or the sanction of the committee of inspection.
[cf. 1929 c. 23 s. 220 U.K.]
226A.
Dissolution of company otherwise than by order of court
(1)
In the case of a company in respect of which the following conditions are satisfied—
(a)
the affairs of the company have been completely wound up; and
(b)
the liquidator has been granted his release by order of the court under section 205,
the Official Receiver or the liquidator may deliver to the Registrar a certificate in the specified form, signed by the Official Receiver or the liquidator, as the case may be, stating that the company is a company in respect of which those conditions are satisfied.
(2)
The Registrar shall forthwith register any certificate delivered under subsection (1), and on the expiration of 2 years from the registration thereof the company shall be dissolved:
Provided that the court may, on the application of the Official Receiver or the liquidator, make an order deferring the date at which the dissolution of the company is to take effect for such time as the court may think fit.
(3)
The Official Receiver or the liquidator who has obtained an order under subsection (2) shall, within 7 days after the making of the order, deliver an office copy of the order to the Registrar for registration.
(Replaced 28 of 2003 s. 81)
(Added 6 of 1984 s. 158. Amended 28 of 2003 s. 81)
227.
Dissolution of company by order of court
(1)
When the affairs of a company have been completely wound up, the court, if the liquidator makes an application in that behalf, shall make an order that the company be dissolved from the date of the order, and the company shall be dissolved accordingly.
(2)
A copy of the order shall within 14 days from the date thereof be delivered by the liquidator to the Registrar for registration.
(3)
If the liquidator makes default in complying with the requirements of this section, he shall be liable to a fine and, for continued default, to a daily default fine.
(Amended 7 of 1990 s. 2)
(Replaced 6 of 1984 s. 158)
[cf. 1948 c. 38 s. 274 U.K.]
227A.
Court may make a regulating order
(1)
Where it appears to the court on application being made by the Official Receiver, provisional liquidator or liquidator or by any creditor at any time after the presentation of a winding up petition that by reason of the large number of creditors or contributories or for any other reason the interest of the creditors so requires, it may, on or after the making of a winding-up order, order that the winding up of the company by the court shall be regulated specially by the court, and such order shall be known as a regulating order.
(Amended 6 of 1984 s. 159; 14 of 2016 s. 52)
(2)
Where a regulating order is made it shall be published in such manner as the court may direct, and sections 227B to 227E inclusive shall apply to the winding up.
(3)
Where a regulating order is made the Companies (Winding-up) Rules (Cap. 32 sub. leg.
H) shall apply mutatis mutandis to the Official Receiver, liquidator and committee of inspection appointed or acting after the making of a regulating order, and to the conduct of any ballot or other proceedings ordered by the court under section 227C or 227D.
(4)
Where any order made under section 227B, 227C or 227D prescribes any procedure it shall be deemed to be in substitution for the procedure which would be required by this Ordinance but for the making of such order, and in particular where any such order prescribes a procedure for doing something which would otherwise be done at a meeting of creditors or contributories no such meeting shall be required to be held.
(Added 22 of 1965 s. 2)
227B.
Appointment of liquidator and committee of inspection
(1)
The court may, on the application of the Official Receiver or provisional liquidator, by order—
(Amended 14 of 2016 s. 53)
(a)
dispense with the summoning of first meetings of creditors and contributories as required under sections 194 and 206 for the purpose of considering the appointment of a liquidator and a committee of inspection;
(b)
appoint one or more persons that the court thinks fit as a liquidator or liquidators; and
(Replaced 14 of 2016 s. 53)
(c)
as regards a committee of inspection—
(i)
appoint any qualified persons that the court thinks fit as a committee of inspection;
(ii)
remove any member of the committee; and
(iii)
fill any vacancy in the committee.
(Replaced 14 of 2016 s. 53)
(1A)
The court may, on the application of the liquidator, by order—
(a)
appoint any qualified persons that the court thinks fit as a committee of inspection;
(b)
remove any member of the committee; and
(c)
fill any vacancy in the committee.
(Added 14 of 2016 s. 53)
(2)
Where under subsection (1) or (1A) the court makes any appointment of a liquidator or a committee of inspection, or where it removes any member of such committee of inspection or fills any vacancy therein, it shall not be necessary to ascertain the wishes of the creditors or contributories, and the provisions of section 194(1)(b)
or 206(1) and (2) or 207(6), (7), (7A) and (7B), as the case may be, shall cease to apply and any action taken under such provisions in respect of any appointment of a liquidator or committee of inspection or any removal therefrom or any filling of any vacancy therein shall cease to have effect.
(Amended 14 of 2016 s. 53)
(Added 22 of 1965 s. 2)
227C.
Informing creditors and contributories and ascertaining their wishes and directions
The court may vary the procedure for ascertaining the wishes and directions of creditors and contributories, and for keeping such creditors and contributories informed as to any matter relating to the winding up, and for such purposes the court may—
(a)
order that the Official Receiver or liquidator inform the creditors and contributories of such matters in such manner as it may direct;
(b)
for the purposes of sections 200 and 287 order that the wishes of creditors and contributories be ascertained by the Official Receiver or liquidator in such manner as it may direct;
(c)
for the purposes of section 200 order that the wishes of the creditors and contributories ascertained pursuant to paragraph (b) be reported by the Official Receiver or liquidator to the court, which may thereupon give such directions as it sees fit, and that notwithstanding section 200(2) the liquidator shall not be required to summon any meetings of creditors or contributories:
Provided that nothing in section 227A(4) or in this paragraph shall operate to prevent any person making application to the court under section 200(5);
(d)
order that instead of the same being sent by post as required under section 203(5) the account of the liquidator or a summary thereof be communicated by the Official Receiver or liquidator to the creditors and contributories in such manner as it may direct.
(Amended 14 of 2016 s. 54)
(Added 22 of 1965 s. 2)
227D.
Compromises and arrangements with creditors
(1)
For the purposes of section 670 of the Companies Ordinance (Cap. 622), the court may despite subsection (1) of that section order that the wishes of creditors or contributories concerning agreement to or rejection of any compromise or arrangement be ascertained by the liquidator in such manner as it may direct including the conduct of a ballot and the use of voting letters and without holding meetings.
(2)
Where a majority in number and three-fourths in value of the creditors, or a class of creditors, as the case may be, who have proved their debt, or who by virtue of section 227E are deemed for voting purposes to have proved a debt exceeding $250, agree to any compromise, such agreement shall, for the purposes of section 673 of the Companies Ordinance (Cap. 622), have the same effect as if a meeting of the creditors or class of creditors had been summoned under section 670(1) of that Ordinance and a majority in number representing three-fourths in value of the creditors or class of creditors, as the case may be, had been present and voted either in person or by proxy at the meeting and agreed to the compromise.
(Amended 81 of 1976 s. 3)
(3)
In the event of the court ordering the holding of any meetings it may order that the provisions of this Ordinance, or of the Companies Ordinance (Cap. 622), relating to the holding of meetings be varied, abrogated or added to for the purpose of such meetings.
(4)
In subsection (1)
arrangement
(安排
) has the meaning given by section 668(1) of the Companies Ordinance (Cap. 622). (Replaced 79 of 1988 s. 6)
(Added 22 of 1965 s. 2. Amended 28 of 2012 ss. 912 & 920)
227E.
Proof of debts
(1)
In the case of a bank, any creditor who is a depositor, whether on current, savings, deposit, fixed deposit or other account, shall, unless and until the Official Receiver or liquidator by notice in writing requires him to make a formal proof of debt, be deemed to have proved his debt—
(a)
for voting purposes, for the net balance to his credit in the books of the bank on all his accounts taken together, at the relevant date,
(b)
for dividend purposes, for the said balance plus or minus, as the case may be, the net amount of interest accrued due by or to the bank on the said accounts at the relevant date.
(2)
Any debt which is deemed to have been proved by virtue of subsection (1) shall be treated as if a proof thereof had been duly lodged in due time with the Official Receiver or liquidator, and had been admitted for voting and dividend purposes respectively for the said amounts stated in subsection (1).
(3)
In subsection (1), the expression
the relevant date
(有關日期
) means the date of the winding-up order.
(Amended 14 of 2016 s. 55)
(4)
In subsection (1), the expressions
deposit
(存款
) and depositor
(存款人
) have the same meaning as in section 265(6).
(Added 11 of 2010 s. 14)
(Added 22 of 1965 s. 2)
227F.
Application of Ordinance to small winding up
(1)
Where after the presentation of a winding-up petition—
(a)
the court is satisfied; or
(b)
the Official Receiver or the provisional liquidator reports to the court,
that the property of the company is not likely to exceed in value $200,000,
the court may make an order that the company be wound up in a summary manner, and
thereupon the provisions of this Ordinance shall apply subject to the following
modifications—
(Amended 25 of 1985 s. 4)
(i)
the Official Receiver or the provisional liquidator, as the case may be, shall be the liquidator but there shall be no meetings of creditors and contributories under section 194 or 206;
(Replaced 25 of 1985 s. 4)
(ii)
there shall be no committee of inspection, and the liquidator may do all things which may be done by a liquidator with the sanction of a committee of inspection;
(iii)
such other modifications as may be prescribed with a view to saving expense and simplifying procedure.
(2)
The court may, upon the application of the liquidator, at any time before the dissolution of the company rescind an order made under subsection (1) and thereupon the winding up shall proceed as if the order had not been made.
(Added 81 of 1976 s. 4. Amended 46 of 2000 s. 31)
228.
Circumstances in which company may be wound up voluntarily
(1)
A company may be wound up voluntarily—
(a)
when the period, if any, fixed for the duration of the company by the articles expires, or the event, if any, occurs on the occurrence of which the articles provide that the company is to be dissolved, and the company in general meeting has passed a resolution requiring the company to be wound up voluntarily;
(Replaced 6 of 1984 s. 160. Amended 28 of 2012 ss. 912 & 920)
(b)
if the company resolves by special resolution that the company be wound up voluntarily;
(c)
(Repealed 14 of 2016 s. 58)
(d)
if the directors of the company or, in the case of a company having more than 2 directors, the majority of the directors, deliver to the Registrar a winding-up statement under section 228A.
(Added 75 of 1993 s. 13. Amended 28 of 2003 s. 82)
(2)
In this Ordinance, the expression
a resolution for voluntary winding up
(自動清盤決議
) means a resolution passed under subsection (1)(a) or (b).
(Amended 75 of 1993 s. 13)
(Amended 14 of 2016 s. 58)
[cf. 1929 c. 23 s. 225 U.K.]
228A.
Special procedure for voluntary winding up of company in case of inability to
continue its business
(1)
The directors of a company or, in the case of a company having more than 2
directors, the majority of the directors, may, if they have formed the opinion that
the company cannot by reason of its liabilities continue its
business—
(Amended 14 of 2016 s. 59)
(a)
pass a resolution to the effect that—
(i)
the company cannot by reason of its liabilities continue its
business;
(ii)
they consider it necessary that the company be wound up and that the
winding up should be commenced under this section because it is not
reasonably practicable for it to be commenced under another section of this
Ordinance; and
(iii)
meetings of the company and of its creditors will be summoned for a
date not later than 28 days after the delivery of a winding-up statement to
the Registrar;
(b)
cause a meeting of the company to be summoned for a date not later than 28
days after the delivery of a winding-up statement to the Registrar;
and
(c)
appoint a person as the provisional liquidator in the winding up of the
company with effect from the commencement of the winding up.
(1A)
After taking the actions specified in subsection (1)(a), (b) and
(c), the directors or the majority of the directors may deliver a winding-up
statement to the Registrar.
(Added 14 of 2016 s. 59)
(1B)
The winding-up statement delivered to the Registrar must—
(a)
be in the specified form;
(b)
be signed by one of the directors; and
(c)
contain a statement by the director signing the winding-up statement
certifying that—
(i)
a resolution has been passed under subsection (1);
(ii)
a meeting of the company has been summoned for the date and time stated
in the winding-up statement; and
(iii)
a provisional liquidator of the name and address stated in the
winding-up statement has been appointed and that the appointment will take
effect from the commencement of the winding up.
(Added 14 of 2016 s. 59)
(2)
The resolution referred to in subsection (1) and the winding-up statement shall
specify the reasons in support of the consideration mentioned in
paragraph
(a)(ii) of that subsection.
(3)
A winding-up statement shall have no effect for the purposes of this Ordinance
unless it is delivered to the Registrar for registration within 7 days after the
date on which it is made.
(4)
A
director of a company who signs a winding-up statement without
having reasonable grounds—
(Amended 14 of 2016 s. 59)
(a)
for the opinion that the company cannot by reason of its liabilities
continue its business; or
(b)
to consider that the winding up of the company should be commenced under
this section because it is not reasonably practicable for it to be commenced
under another section of this
Ordinance;
or
(c)
for certifying any of the matters referred to in subsection (1B)(c),
(Added 14 of 2016 s. 59)
shall
be liable to a fine and imprisonment.
(5)
Where a winding-up statement is delivered to the Registrar—
(a)
the winding up of the company shall commence at the time of the delivery of
that
statement;
and
(b)
(Repealed 14 of 2016 s. 59)
(c)
the directors shall cause
a
meeting of the creditors of the company to be summoned for a
date not later than 28 days after the delivery of that statement.
(6)
A director who fails to comply with
subsection
(5)(c) commits an offence and is liable on conviction to a fine.
(7)
The provisional liquidator appointed under subsection (1)(c)
may—
(a)
summon a meeting of the company if the directors have not, prior to the
delivery of the winding-up statement to the Registrar, caused a meeting of the
company to be summoned under subsection (1)(b); and
(b)
summon a meeting of the creditors of the company if the directors fail to
comply with subsection (5)(c).
(Replaced 14 of 2016 s. 59)
(8)
Without
limiting section 262A, no person may be appointed as, or act as, a
provisional liquidator under subsection (1)(c) unless—
(Amended 14 of 2016 s. 59)
(a)
that
person has consented in writing to
the
appointment; and
(b)
that
person is a solicitor, or a certified public accountant under
the Professional Accountants Ordinance (Cap. 50).
(Amended 23 of 2004 s. 56)
(8A)
An appointment that is made in contravention of subsection (8) is void.
(Added 14 of 2016 s. 59)
(8B)
A person who acts as a provisional liquidator in contravention of subsection
(8) commits an offence and is liable on conviction to a fine.
(Added 14 of 2016 s. 59)
(9)
Within
15 days after the commencement of the winding up of the company,
the directors shall give notice
by the
specified
means of—
(Amended 14 of 2016 s. 59; 22 of 2023 s. 57)
(a)
the commencement of the winding up of the company by the delivery to the
Registrar of the winding-up statement and the date of such delivery;
and
(b)
the appointment of the provisional liquidator and his name and
address.
(9A)
A director who fails to comply with subsection (9) commits an offence and is
liable on conviction to a fine and, for continued default, to a daily default fine.
(Added 14 of 2016 s. 59)
(10)
A provisional liquidator appointed under
subsection
(1)(c) must, within 15 days after the commencement of the winding up
of the company, deliver to the Registrar for registration a notice
of his appointment in the specified form, which notice shall include the following particulars—
(Amended 14 of 2016 s. 59)
(a)
his name;
(b)
his address; and
(c)
the number of his identity card (if any) or, in the absence of such number,
the number and issuing country of any passport held by him.
(11)
A person appointed as a provisional liquidator under
subsection
(1)(c) who ceases to act as such must, within 15 days after the
date of his ceasing to act—
(Amended 14 of 2016 s. 59)
(a)
publish
by the
specified
means
a notice of that fact; and
(Amended 22 of 2023 s. 57)
(b)
deliver to the Registrar for registration a notice of that fact in the
specified form.
(12)
If any change occurs in the particulars given in a notice delivered to the
Registrar under subsection (10), the provisional liquidator shall, within
15
days after the date of the change, deliver to the Registrar for registration a
notice of that change in the specified form, unless he has previously given notice
to the Registrar under subsection (11).
(13)
A person who fails to comply with subsection (10), (11) or (12)
commits
an offence and is liable on conviction to a fine and, for
continued default, to a daily default fine.
(14)
(a)
unless a liquidator is sooner appointed, hold office until a meeting of the
creditors of the company summoned under this section or, if that meeting is
adjourned, any adjourned meeting, may allow;
(b)
take into his custody or under his control all the property and things in
action to which the company is or appears to be entitled; and
(c)
be entitled, out of the funds of the company, to such remuneration as the
committee of inspection or, if there is no such committee, the creditors, may
fix and to reimbursement of expenses properly incurred by him, but he shall not
be liable, and no civil action or other proceedings shall lie against him, in
respect of acts properly done by him.
(15)
All the powers of the directors cease during the period of the provisional
liquidator’s appointment except—
(a)
so far as may be necessary for enabling the directors to comply with this
section; or
(b)
if the court sanctions the continuance of those powers for any other
purpose.
(Replaced 14 of 2016 s. 59)
(16)
(Repealed 14 of 2016 s. 59)
(17)
In relation to every winding up commenced under this section—
(a)
section 241 shall apply to a meeting of the creditors of the
company summoned under this section as it applies to a meeting of the creditors
of a company summoned under that section except that—
(i)
for the words “at which the resolution for voluntary winding up is to
be proposed” in
subsection
(1)(a) of that section there shall be
substituted
the
words “under section 228A(1)(b)”;
(ii)
the
notice
of the meeting of the creditors required to be published by subsection (2)
of that section must be
published
at least 7 days before the meeting of creditors; and
(Replaced 14 of 2016 s. 59. Amended 22 of 2023 s. 57)
(iii)
subsection (5) of that section shall be omitted;
(b)
subject to paragraph (a), sections 241 to 248 shall apply as
they apply in relation to a creditors’ voluntary winding up.
(18)
In the case of a private company having only one director, the sole director
may—
(a)
pass the resolution referred to in subsection (1) and sign the record of it
in the minute book; and
(b)
make the winding-up statement.
(19)
In relation to a statutory declaration made under section 228A of
this Ordinance before the
commencement#
of section 83 of the Companies (Amendment) Ordinance
2003 (28 of 2003), the provisions of section
228A of this Ordinance in force immediately before that commencement shall
continue to have effect as if section 83 of that Ordinance had not been
enacted.
(20)
In this section—
winding-up statement
(清盤陳述書
) means the winding-up statement described in subsection (1B).
(Added 14 of 2016 s. 59. Amended 14 of 2016 s. 59)
(Replaced 28 of 2003 s. 83)
Editorial Note:
#
Commencement date: 13 February 2004.
228B.
Other powers, duties and liabilities of provisional liquidator appointed under section 228A
(1)
Subject to subsection (2), a provisional liquidator appointed under section 228A(1)(c)—
(a)
has, for the period of the provisional liquidator’s appointment, the like powers as a liquidator in a creditors’ voluntary winding up;
(b)
is, for that period, subject to the like duties as such a liquidator; and
(c)
is subject to the like liabilities as such a liquidator.
(2)
Except as provided in subsection (3), the provisional liquidator may exercise a power conferred by subsection (1)(a) only with the sanction of the court.
(3)
The provisional liquidator may, without sanction of the court—
(a)
take into the provisional liquidator’s custody, or under the provisional liquidator’s control, all the property and things in action to which the company is or appears to be entitled;
(b)
dispose of perishable goods and other goods that are likely to diminish in value if not immediately disposed of; and
(c)
do anything that may be necessary to protect the company’s assets.
(4)
The court has the same jurisdiction and powers over a provisional liquidator appointed under section 228A(1)(c) as it has over a liquidator in a creditors’ voluntary winding up.
(5)
A provisional liquidator who, without reasonable excuse, exercises a power conferred by subsection (1)(a) in contravention of subsection (2) commits an offence and is liable on conviction to a fine.
(6)
A provisional liquidator appointed under section 228A(1)(c) must—
(a)
attend the meeting of the creditors of the company summoned under section 228A; and
(b)
report to the meeting on any exercise of the provisional liquidator’s powers, whether or not those powers are exercised under this section.
(7)
A provisional liquidator who, without reasonable excuse, fails to comply with subsection (6) commits an offence and is liable on conviction to a fine.
(Added 14 of 2016 s. 60)
229.
Notice of resolution to wind up voluntarily
(1)
When a company has passed a resolution for voluntary winding up, it shall,
within
15
days after the passing of the resolution, give notice of the
resolution by
the specified means.
(2)
If default is made in complying with this section, the company and every officer of the company who is in default shall be liable to a fine and, for continued default, to a daily default fine, and for the purposes of this subsection the liquidator of the company shall be deemed to be an officer of the company.
(Amended 7 of 1990 s. 2; L.N. 587 of 1995)
[cf. 1929 c. 23 s. 226 U.K.]
230.
Commencement of voluntary winding up
Except as provided in section 228A(5)(a), a voluntary winding up shall be deemed to commence at the time of the passing of the resolution for voluntary winding up.
(Amended 75 of 1993 s. 15; 28 of 2003 s. 84)
[cf. 1929 c. 23 s. 227 U.K.]
231.
Effect of voluntary winding up on business and status of company
In case of a voluntary winding up, the company shall, from the commencement of the
winding up, cease to carry on its business, except so far as may be required for the
beneficial winding up thereof:
Provided that the corporate state and
corporate powers of the company shall, notwithstanding anything to the contrary in its
articles, continue until it is dissolved.
[cf. 1929 c. 23 s. 228 U.K.]
232.
Avoidance of transfers, &c., after commencement of voluntary winding up
Any transfer of shares, not being a transfer made to or with the sanction of the liquidator, and any alteration in the status of the members of the company, made after the commencement of a voluntary winding up, shall be void.
[cf. 1929 c. 23 s. 229 U.K.]
233.
Certificate of solvency in case of proposal to wind up voluntarily
(1)
Subject to subsection (1A), where it is proposed to wind up a company voluntarily, the directors of the company or, in the case of a company having more than 2 directors, the majority of the directors, may at a meeting of the directors issue a certificate in the specified form (the certificate of solvency), signed by the directors, to the effect that they have made a full inquiry into the affairs of the company, and that, having so done, they have formed the opinion that the company will be able to pay its debts in full within such period not exceeding 12 months from the commencement of the winding up as may be specified in the certificate of solvency.
(Amended 30 of 1999 s. 17)
(1A)
A certificate of solvency may be issued by the directors of the company other than at a meeting of the directors if, but only if, before the certificate is issued, a resolution has been passed by the directors authorizing the certificate to be issued.
(Replaced 28 of 2003 s. 86)
(2)
A certificate of solvency shall have no effect for the purposes of this Ordinance unless—
(Amended 28 of 2003 s. 86)
(a)
it is issued within the 5 weeks immediately preceding the date of the passing of the resolution for winding up the company or on that date but before the passing of the resolution and is delivered to the Registrar for registration not later than the date of delivery to the Registrar of a copy of the resolution; and
(Amended 79 of 1988 s. 7)
(b)
it embodies a statement of the company’s assets and liabilities as at the latest practicable date before the issuing of the certificate.
(3)
Any director of a company signing a certificate of solvency under this section without having reasonable grounds for the opinion that the company will be able to pay its debts in full within the period specified in the certificate, shall be liable to a fine and imprisonment; and if the company is wound up in pursuance of a resolution passed within the period of 5 weeks after the issuing of the certificate, but its debts are not paid or provided for in full within the period stated in the certificate, it shall be presumed until the contrary is shown that the director did not have reasonable grounds for his opinion.
(Amended 7 of 1990 s. 2)
(4)
A winding up in the case of which a certificate of solvency has been issued and delivered under this section is in this Ordinance referred to as a members’ voluntary winding up, and a winding up in the case of which a certificate of solvency has not been issued and delivered as aforesaid is in this Ordinance referred to as a creditors’ voluntary winding up.
(5)
Notwithstanding subsections (1) and (2), any declaration of solvency made in
connexion with a winding up commenced but not completed before the date of
commencement#
of the Companies (Amendment) Ordinance 1984 (6 of 1984)
shall, if it has been effective for the purposes of this Ordinance before that date,
continue to have effect for those purposes on and after that date, and—
(a)
such winding up shall be deemed to be a members’ voluntary winding up
within the meaning of this section;
(b)
subsection (3) shall not apply in relation to any such declaration or
winding up.
(6)
In the case of a private company having only one director, the sole director may issue a certificate of solvency by recording the certificate and signing the record of it in the company’s minute book; and recording and signing the certificate shall be deemed to satisfy the requirement under subsection (1) that the certificate be issued at a meeting of the directors.
(Added 28 of 2003 s. 86)
(7)
Notwithstanding subsections (1) and (2), any declaration of solvency made in
connection with a winding up commenced on or after the date of
commencement#
of the Companies (Amendment) Ordinance 1984 (6 of 1984)
but not completed before the date of
commencement##
of section 86(6) of the Companies (Amendment) Ordinance 2003 (28 of 2003) shall, if it has been effective for the
purposes of this Ordinance before the latter date, continue to have effect for those
purposes on and after that date, and—
(a)
such winding up shall be deemed to be a members’ voluntary winding up
within the meaning of this section; and
(b)
subsection (3) shall apply in relation to any such declaration or winding
up as if the declaration were a certificate of solvency.
(Added 28 of 2003 s. 86)
(Replaced 6 of 1984 s. 162. Amended 28 of 2003 s. 86)
[cf. 1948 c. 38 s. 283 U.K.]
Editorial Note:
#
Commencement date: 31 August 1984.
##
Commencement date: 13 February 2004.
234.
Provisions applicable to members’ winding up
The provisions contained in sections 235 to 239 shall apply in relation to a members’ voluntary winding up.
(Amended 6 of 1984 s. 163; 14 of 2016 s. 65)
[cf. 1929 c. 23 s. 231 U.K.]
235.
Power of company to appoint and fix remuneration of liquidators
(1)
The company in general meeting shall appoint one or more liquidators for the purpose of winding up the affairs and distributing the assets of the company, and may fix the remuneration to be paid to him or them.
(2)
On the appointment of a liquidator all the powers of the directors shall cease, except so far as the company in general meeting, or the liquidator, sanctions the continuance thereof.
[cf. 1929 c. 23 s. 232 U.K.]
235A.
Power to remove liquidator
(1)
The company may by special resolution remove a liquidator from office at a general meeting of which notice specifying the intention to propose such resolution has been duly given to the creditors and the liquidator.
(2)
The court may, on the application of any creditor or contributory, order that a liquidator whom it is proposed to remove from office under this section shall not be so removed.
(3)
A general meeting for the purpose of this section may be convened by any contributory.
(Added 6 of 1984 s. 164)
236.
Power to fill vacancy in office of liquidators
(1)
If a vacancy occurs by death, resignation, or otherwise in the office of liquidator appointed by the company, the company in general meeting may, subject to any arrangement with its creditors, fill the vacancy.
(2)
For that purpose a general meeting may be convened by any contributory or, if there were more liquidators than one, by the continuing liquidators.
(3)
The meeting shall be held in manner provided by this Ordinance or the Companies
Ordinance (Cap. 622) or by the articles, or in such
manner as may, on application by any contributory or by the continuing liquidators,
be determined by the court.
(Amended 28 of 2012 ss. 912 & 920)
[cf. 1929 c. 23 s. 233 U.K.]
237.
Power of liquidator to accept shares, &c. as consideration for sale of property of company
(1)
Where a company is proposed to be, or is in course of being, wound up voluntarily, and the whole or part of its business or property is proposed to be transferred or sold to another company, whether a company within the meaning of this Ordinance or not (in this section called the transferee company) the liquidator of the first-mentioned company (in this section called the transferor company) may, with the sanction of a special resolution of that company, conferring either a general authority on the liquidator or an authority in respect of any particular arrangement, receive in compensation or part compensation for the transfer or sale, shares, policies, or other like interests in the transferee company, for distribution among the members of the transferor company, or may enter into any other arrangement whereby the members of the transferor company may, in lieu of receiving cash, shares, policies, or other like interests, or in addition thereto, participate in the profits of or receive any other benefit from the transferee company.
(2)
Any sale or arrangement in pursuance of this section shall be binding on the members of the transferor company.
(3)
If any member of the transferor company, whether he voted in favour of the special resolution or not, expresses his dissent therefrom in writing addressed to the liquidator, and left at the registered office of the company within 7 days after the passing of the resolution, lie may require the liquidator either to abstain from carrying the resolution into effect, or to purchase his interest at a price to be determined by agreement or by arbitration.
(Amended 25 of 1998 s. 2)
(4)
If the liquidator elects to purchase the member’s interest, the purchase money must be paid before the company is dissolved, and be raised by the liquidator in such manner as may be determined by special resolution.
(5)
A special resolution shall not be invalid for the purposes of this section by reason that it is passed before or concurrently with a resolution for voluntary winding up or for appointing liquidators, but, if an order is made within a year for winding up the company by the court, the special resolution shall not be valid unless sanctioned by the court.
(6)
(Repealed 25 of 1998 s. 2)
(Amended 6 of 1984 s. 165)
[cf. 1929 c. 23 s. 234 U.K.]
237A.
Duty of liquidator to
summon
creditors’ meeting, etc. in case of insolvency
(Amended 14 of 2016 s. 66)
(1)
This section applies if the liquidator of a company is of the opinion that the
company will not be able to pay its debts in full within the period stated in the
certificate of solvency.
(Replaced 14 of 2016 s. 66)
(1A)
The liquidator must—
(a)
summon a meeting of the creditors of the company for a date not later than
28 days after the day on which the liquidator formed that opinion;
(b)
send notices of the meeting to the creditors at least 7 days before the
date on which the meeting is to be held; and
(c)
cause the notice of the meeting to be published by the specified means in
Chinese and English.
(Added 14 of 2016 s. 66. Amended 22 of 2023 s. 59)
(1B)
If the liquidator is not a person who would be disqualified under section
262B(3) from acting as liquidator in the winding up of the company were it
a creditors’ voluntary winding up, the liquidator must make a disclosure statement
that complies with section 262D before notices of the meeting are sent to
the creditors.
(Added 14 of 2016 s. 66)
(1C)
If the liquidator is a person who would be disqualified under section
262B(3) from acting as a liquidator in the winding up of the company were
it a creditors’ voluntary winding up, the liquidator must state in the notices of
the meeting that the liquidator—
(a)
would be disqualified under section 262B(3) from acting as
liquidator of the company when the winding up of the company becomes a
creditors’ voluntary winding up under section 237B(1); and
(b)
although would be allowed under section 237B(3)(a) to continue
to act as liquidator of the company, he or she would cease to be the liquidator
of the company immediately after the conclusion of the meeting.
(Added 14 of 2016 s. 66
)(1D)
At any time before the date on which the meeting is to be held, the liquidator
must, as the creditors or any of them may reasonably require, provide the creditors
or any of them, free of charge, with any information concerning the company’s
affairs so required.
(Added 14 of 2016 s. 66)
(1E)
The liquidator must inform the creditors, in the notice of the meeting, of the
liquidator’s duty to provide information as imposed by subsection (1D).
(Added 14 of 2016 s. 66)
(1F)
The liquidator must also—
(a)
prepare a full statement of the position of the company’s affairs that
complies with subsection (1G); and
(b)
lay that statement before the meeting.
(Added 14 of 2016 s. 66)
(1G)
The full statement of the position of the company’s affairs must show—
(a)
the particulars of the company’s assets, debts and liabilities;
(b)
the names of the company’s creditors and the estimated amount of the claim
of each of the creditors;
(c)
the securities held by each of the creditors;
(d)
the date on which each of the securities was given; and
(e)
any further or other information as may be prescribed.
(Added 14 of 2016 s. 66)
(1H)
The liquidator must attend and preside at the meeting.
(Added 14 of 2016 s. 66)
(2)
The creditors may, at a meeting
summoned by the
liquidator under this section, appoint another liquidator in place of the
liquidator.
(Amended 14 of 2016 s. 66)
(3)
A
liquidator who, without reasonable excuse, fails to comply with subsection (1A),
(1B), (1C), (1D), (1E), (1F) or (1H) commits an offence and is liable on conviction
to a fine.
(Replaced 14 of 2016 s. 66)
(Added 6 of 1984 s. 166)
[cf. 1948 c. 38 s. 288 U.K.]
237B.
Conversion to creditors’ voluntary winding up in case of insolvency
(1)
On the day when the meeting of the creditors of the company is held under section 237A, the winding up becomes a creditors’ voluntary winding up.
(2)
When the winding up becomes a creditors’ voluntary winding up under subsection (1), this Ordinance accordingly applies to the winding up of the company as a creditors’ voluntary winding up as if the certificate of solvency concerned had not been issued by the directors of the company.
(3)
If, when the winding up becomes a creditors’ voluntary winding up under subsection (1), the person holding the office of liquidator of the company is disqualified under section 262B(3) from acting as liquidator of the company, then—
(a)
despite sections 262A and 262B and rule 155 of the Companies (Winding-up) Rules (Cap. 32 sub. leg. H), the person may continue to act as liquidator of the company until the meeting is concluded, but solely for the purposes of complying with section 237A; and
(b)
immediately after the conclusion of the meeting, the person ceases to be the liquidator of the company and for the purposes of this Ordinance, the Companies (Winding-up) Rules (Cap. 32 sub. leg. H) and the Companies Ordinance (Cap. 622) is taken to have been removed from that office.
(Added 14 of 2016 s. 67)
238.
Duty of liquidator to call general meeting at end of each year
(1)
In the event of the winding up continuing for more than 1 year, the liquidator shall summon a general meeting of the company at the end of the first year from the commencement of the winding up, and of each succeeding year, or at the first convenient date within 3 months from the end of the year or such longer period as the Official Receiver may allow, and shall lay before the meeting an account of his acts and dealings and of the conduct of the winding up during the preceding year.
(Amended 14 of 2016 s. 68)
(2)
If the liquidator fails to comply with this section, he shall be liable to a fine.
(Amended 22 of 1950 Schedule; 7 of 1990 s. 2)
(Amended 6 of 1984 s. 167)
[cf. 1929 c. 23 s. 235 U.K.]
239.
Final meeting and dissolution
(1)
As soon as the affairs of the company are fully wound up, the liquidator shall make up an account of the winding up, showing how the winding up has been conducted and the property of the company has been disposed of, and thereupon shall call a general meeting of the company for the purpose of laying before it the account, and giving any explanation thereof.
(Amended 14 of 2016 s. 69)
(2)
The meeting must be called by publishing a notice specifying the time, place
and object of the meeting by the specified means at least 1 month before the
meeting.
(Replaced 22 of 2023 s. 60)
(3)
Within 1 week after the meeting, the liquidator shall send to the Registrar a copy of the account, and shall make a return to him of the holding of the meeting and of its date, and if the copy is not sent or the return is not made in accordance with this subsection the liquidator shall be liable to a fine and, for continued default, to a daily default fine:
Provided that, if a quorum is not present at the meeting, the liquidator shall, in lieu of the return hereinbefore mentioned, make a return that the meeting was duly summoned and that no quorum was present thereat, and upon such a return being made the provisions of the subsection as to the making of the return shall be deemed to have been complied with.
(4)
The Registrar on receiving the account and either of the returns hereinbefore mentioned shall forthwith register them, and on the expiration of 3 months from the registration of the return the company shall be dissolved:
Provided that the court may, on the application of the liquidator or of any other person who appears to the court to be interested, make an order deferring the date at which the dissolution of the company is to take effect for such time as the court thinks fit.
(5)
It shall be the duty of the person on whose application an order of the court under this section is made, within 7 days after the making of the order, to deliver to the Registrar an office copy of the order for registration, and if that person fails so to do he shall be liable to a fine and, for continued default, to a daily default fine.
(6)
If the liquidator fails to call a general meeting of the company as required by this section, he shall be liable to a fine.
(Added 6 of 1984 s. 168)
(Amended 6 of 1984 s. 168; 7 of 1990 s. 2)
[cf. 1929 c. 23 s. 236 U.K.]
239A.
(Repealed 14 of 2016 s. 70)
240.
Provisions applicable to creditors’ winding up
(1)
Subject to subsection (2), the provisions contained in sections 241 to 248 shall apply in relation to a creditors’ voluntary winding up.
(Amended 14 of 2016 s. 72)
(2)
Sections 241, 242 and 243A do not apply in relation to a winding up that becomes a creditors’ voluntary winding up under section 237B(1).
(Added 14 of 2016 s. 72)
[cf. 1929 c. 23 s. 237 U.K.]
241.
Meeting of creditors
(1)
The company shall—
(Amended 14 of 2016 s. 73)
(a)
cause a meeting of the creditors of the company to be summoned for a date not later than 14 days after the day on which there is to be held the meeting of the company at which the resolution for voluntary winding up is to be proposed; and
(b)
cause notices of the meeting of creditors to be sent by post to the creditors at least 7 days before the day on which the meeting is to be held.
(2)
The company shall cause notice of the meeting of the creditors to be
published by
the specified means in Chinese and English.
(Replaced 6 of 1984 s. 170. Amended 22 of 2023 s. 61)
(3)
The directors of the company shall—
(a)
cause a full statement of the position of the company’s affairs that complies with subsection (3A) to be laid before the meeting of creditors to be held as provided in subsection (1); and
(b)
appoint one of their number to preside at the said meeting.
(3A)
The full statement of the position of the company’s affairs must show—
(a)
the particulars of the company’s assets, debts and liabilities;
(b)
the names of the company’s creditors and the estimated amount of the claim of each of the creditors;
(c)
the securities held by each of the creditors;
(d)
the date on which each of the securities was given; and
(e)
any further or other information as may be prescribed.
(Added 14 of 2016 s. 73)
(4)
It shall be the duty of the director appointed to preside at the meeting of creditors to attend the meeting and preside thereat.
(5)
If the meeting of the company at which the resolution for voluntary winding up is to be proposed is adjourned to a date later than the day of the meeting of creditors held under subsection (1),
and the resolution is passed at an adjourned meeting, any resolution passed at that meeting of creditors shall have effect as if it had been passed immediately after the passing of the resolution for winding up the company.
(6)
If default is made—
(a)
by the company, without reasonable excuse, in complying with subsection (1) or (2);
(b)
by the directors of the company, without reasonable excuse,
in complying with subsection (3);
(c)
by any director of the company, without reasonable excuse, in complying with subsection (4),
the company, directors or director, as the case may be, commits an offence and is liable on conviction to a fine, and, in the case of default by the company, every officer of the company who is in default commits an offence and is liable on conviction to the like penalty.
(Amended 14 of 2016 s. 73)
[cf. 1929 c. 23 s. 238 U.K.]
242.
Appointment of liquidator
The creditors and the company at their respective meetings mentioned in section 241 may nominate a person to be liquidator for the purpose of winding up the affairs and distributing the assets of the company, and if the creditors and the company nominate different persons, the person nominated by the creditors shall be liquidator, and if no person is nominated by the creditors the person, if any, nominated by the company shall be liquidator:
Provided that in the case of different persons being nominated any director, member, or creditor of the company may, within 7 days after the date on which the nomination was made by the creditors, apply to the court for an order either directing that the person nominated as liquidator by the company shall be liquidator instead of or jointly with the person nominated by the creditors, or appointing some other person to be liquidator instead of the person appointed by the creditors.
[cf. 1929 c. 23 s. 239 U.K.]
243.
Appointment of committee of inspection
(1)
The creditors at the meeting to be held in pursuance of section 237A or 241 or at any subsequent meeting, may, if they think fit, appoint a committee of inspection consisting of not less than 3, and not more than 7 persons, and if such a committee is appointed the company may, either at the meeting at which the resolution for voluntary winding up is passed or at any time
subsequently in general meeting, appoint one or more persons that they think fit to act as members of the committee, but the number of persons appointed by the creditors and the company must not in total exceed 7:
(Amended 14 of 2016 s. 74)
Provided that the creditors may, if they think fit, resolve that all or any of the persons so appointed by the company ought not to be members of the committee of inspection, and, if the creditors so resolve, the persons mentioned in the resolution shall not, unless the court otherwise directs, be qualified to act as members of the committee, and on any application to the court under this provision the court may, if it thinks fit, appoint other persons to act as such members in place of the persons mentioned in the resolution.
(1A)
However, a liquidator may apply to the court for an order to vary the minimum or maximum number of members mentioned in subsection (1) and the court may make an order that it thinks fit.
(Added 14 of 2016 s. 74)
(2)
Subject to the provisions of this section and to general rules, sections 206A, 207, 207A, 207B, 207C, 207D, 207E, 207F, 207G, 207H, 207I, 207J, 207K and 207L apply with respect to a committee of inspection appointed under this section as they apply with respect to a committee of inspection appointed in a winding up by the court.
(Amended 14 of 2016 s. 74)
(3)
A body corporate may be a member of the committee but cannot act as a member otherwise than by a representative authorized under section 207A.
(Added 14 of 2016 s. 74)
[cf. 1929 c. 23 s. 240 U.K.]
243A.
Powers and duties of liquidator nominated by company
(1)
Except as provided in subsection (2), before a meeting of the creditors of the company is held under section 241, a person who is nominated by the company to be liquidator under section 242 (the liquidator) may exercise a power conferred by section 251(1) only with the sanction of the court.
(2)
The liquidator may, without sanction of the court—
(a)
take into the liquidator’s custody, or under the liquidator’s control, all the property and things in action to which the company is or appears to be entitled;
(b)
dispose of perishable goods and other goods that are likely to diminish in value if not immediately disposed of; and
(c)
do anything that may be necessary to protect the company’s assets.
(3)
The liquidator must—
(a)
attend the meeting of creditors held under section 241; and
(b)
report to the meeting on any exercise of the liquidator’s powers, whether or not those powers are exercised under this section.
(4)
If section 241(1) is not complied with, the liquidator must apply to the court for directions as to the manner in which the default is to be remedied within 7 days of the later of the following—
(a)
the day on which the liquidator was nominated by the company;
(b)
the day on which the liquidator first became aware of the default.
(5)
If section 241(2), (3) or (4) is not complied with, the liquidator may apply to the court for directions as to the manner in which the default is to be remedied.
(6)
A liquidator who, without reasonable excuse, exercises a power conferred by section 251(1) in contravention of subsection (1) commits an offence and is liable on conviction to a fine.
(7)
A liquidator who, without reasonable excuse, fails to comply with subsection (3) or (4) commits an offence and is liable on conviction to a fine.
(Added 14 of 2016 s. 75)
244.
Fixing of liquidators’ remuneration and cesser of directors’ powers
(1)
The committee of inspection, or if there is no such committee, the creditors, may fix the remuneration to be paid to the liquidator or liquidators.
(2)
On the appointment of a liquidator, all the powers of the directors shall cease, except so far as the committee of inspection, or if there is no such committee, the creditors, sanction the continuance thereof.
[cf. 1929 c.23 s. 241 U.K.]
244A.
Removal of liquidator
(1)
This section does not apply to the removal of a liquidator appointed by, or by the direction of, the court.
(2)
If not less than one-tenth in value of the creditors of a company request in writing a liquidator of the company to convene a meeting of creditors to consider the removal of a liquidator, the liquidator who receives the request must—
(a)
convene the meeting within 21 days from the date the request is received; and
(b)
specify in the notice of the meeting the proposal of moving a resolution to remove a liquidator.
(3)
If a meeting of creditors is not convened under subsection (2)(a), any creditor of the company may convene a meeting of creditors for considering the removal of the liquidator for which the meeting was requested to convene under subsection (2).
(4)
The creditor who convenes a meeting of creditors under subsection (3) must specify in the notice of the meeting the proposal of moving a resolution to remove a liquidator.
(5)
A liquidator may be removed by a resolution passed by a majority in number and three-fourths in value of the creditors present, personally or by proxy, at a meeting of creditors convened under this section and voting on the resolution.
(6)
The court may, on application by a creditor or contributory of the company, order that a liquidator whom it is proposed to remove from office under this section is not to be so removed.
(Added 14 of 2016 s. 76)
245.
Power to fill vacancy in office of liquidator
If a vacancy occurs, by death, resignation or otherwise, in the office of a liquidator—
(Amended 14 of 2016 s. 77)
(a)
for a liquidator appointed by, or by the direction of, the court, the court may appoint a person to fill the vacancy; and
(b)
for any other liquidator, the creditors may appoint a person to fill the vacancy.
(Amended 14 of 2016 s. 77)
[cf. 1929 c. 23 s. 242 U.K.]
246.
Application of section 237 to a creditors’ voluntary winding up
Section 237 shall apply in the case of a creditors’ voluntary winding up as in the case of a members’ voluntary winding up, with the modification that the powers of the liquidator under the said section shall not be exercised except with the sanction either of the court or of the committee of inspection.
[cf. 1929 c. 23 s. 243 U.K.]
247.
Duty of liquidator to call meetings of company and of creditors at end of each year
(1)
In the event of the winding up continuing for more than 1 year, the liquidator shall summon a general meeting of the company and a meeting of creditors at the end of the first year from the commencement of the winding up, and of each succeeding year, or at the first convenient date within 3 months from the end of the year or such longer period as the Official Receiver may allow, and shall lay before the meetings an account of his acts and dealings and of the conduct of the winding up during the preceding year.
(1A)
Despite subsection (1), if—
(a)
a winding up becomes a creditors’ voluntary winding up under section 237B(1); and
(b)
the meeting of creditors under section 237A is held 3 months or less before the end of the first year from the commencement of the winding up,
then the liquidator is not required by this section to summon a meeting of creditors at the end of that year.
(Added 14 of 2016 s. 78)
(2)
If the liquidator fails to comply with this section, he shall be liable to a fine.
(Amended 22 of 1950 Schedule; 7 of 1990 s. 2)
(Amended 6 of 1984 s. 171)
[cf. 1929 c. 23 s. 244 U.K.]
248.
Final meeting and dissolution
(1)
As soon as the affairs of the company are fully wound up, the liquidator shall make up an account of the winding up, showing how the winding up has been conducted and the property of the company has been disposed of, and thereupon shall call a general meeting of the company and a meeting of the creditors, for the purpose of laying the account before the meetings, and giving any explanation thereof.
(2)
Each such meeting must be called by publishing a notice specifying the time,
place and object of the meeting by the specified means at least 1 month before the
meeting.
(Replaced 22 of 2023 s. 62)
(3)
Within 1 week after the date of the meetings, or, if the meetings are not held on the same date, after the date of the later meeting, the liquidator shall send to the Registrar a copy of the account, and shall make a return to him of the holding of the meetings and of their dates, and if the copy is not sent or the return is not made in accordance with this subsection the liquidator shall be liable to a fine and, for continued default, to a daily default fine:
Provided that, if a quorum is not present at either such meeting, the liquidator shall, in lieu of the return hereinbefore mentioned, make a return that the meeting was duly summoned and that no quorum was present thereat, and upon such a return being made the provisions of this subsection as to the making of the return shall, in respect of that meeting, be deemed to have been complied with.
(4)
The Registrar on receiving the account and in respect of each such meeting either of the returns hereinbefore mentioned shall forthwith register them, and on the expiration of 3 months from the registration thereof the company shall be dissolved:
Provided that the court may, on the application of the liquidator or of any other person who appears to the court to be interested, make an order deferring the date at which the dissolution of the company is to take effect for such time as the court thinks fit.
(5)
It shall be the duty of the person on whose application an order of the court under this section is made, within 7 days after the making of the order, to deliver to the Registrar an office copy of the order for registration, and if that person fails so to do he shall be liable to a fine and, for continued default, to a daily default fine.
(6)
If the liquidator fails to call a general meeting of the company or a meeting of the creditors as required by this section, he shall be liable to a fine.
(Added 6 of 1984 s. 172)
(Amended 6 of 1984 s. 172; 7 of 1990 s. 2)
[cf. 1929 c. 23 s. 245 U.K.]
249.
Provisions applicable to voluntary winding up
Unless otherwise stated in a provision contained in sections 250 to 257, those sections apply to every voluntary winding up.
(Replaced 14 of 2016 s. 80)
250.
Distribution of property of company
Subject to the provisions of this Ordinance as to preferential payments, the property of a company shall, on its winding up, be applied in satisfaction of its liabilities pari passu, and, subject to such application, shall, unless the articles otherwise provide, be distributed among the members according to their rights and interests in the company.
[cf. 1929 c. 23 s. 247 U.K.]
250A.
Directors’ powers before nomination or appointment of liquidator
(1)
Except as provided in subsection (3), in a members’ voluntary winding up, after the company has passed a resolution for voluntary winding up and before the appointment of a liquidator of the company, the directors may exercise their powers only with the sanction of the court.
(2)
In a creditors’ voluntary winding up, after the company has passed a resolution for voluntary winding up and before the nomination or appointment of a liquidator of the company, the directors—
(a)
except as provided in paragraph (b) and subsection (3), may exercise their powers only with the sanction of the court; and
(b)
may exercise their powers so far as may be necessary for the purpose of enabling the directors to secure compliance with section 241.
(3)
The directors may, without sanction of the court—
(a)
dispose of perishable goods and other goods that are likely to diminish in value if not immediately disposed of; and
(b)
do anything that may be necessary to protect the company’s assets.
(4)
A director of the company who, without reasonable excuse, exercises a power in contravention of subsection (1) or (2) commits an offence and is liable on conviction to a fine.
(Added 14 of 2016 s. 81)
251.
Powers and duties of liquidator in voluntary winding up
(1)
(a)
exercise any of the powers specified in Part 1 of Schedule 25—
(i)
in the case of a members’ voluntary winding up—with the sanction of a special resolution of the company; and
(ii)
in the case of a creditors’ voluntary winding up—with the sanction of the court or the committee of inspection or, if there is no such committee, a meeting of the creditors;
(Replaced 14 of 2016 s. 82)
(b)
without sanction, exercise any of the other powers by this Ordinance given to the liquidator in a winding up by the court;
(c)
exercise the power of the court under this Ordinance of settling a list of contributories, and the list of contributories shall be prima facie evidence of the liability of the persons named therein to be contributories;
(d)
exercise the power of the court of making calls;
(e)
summon general meetings of the company for the purpose of obtaining the sanction of the company by special resolution or for any other purpose he may think fit.
(Amended 6 of 1984 s. 174)
(2)
The liquidator shall pay the debts of the company and shall adjust the rights of the contributories among themselves.
(3)
When several liquidators are appointed, any power given by this Ordinance may be exercised by such one or more of them as may be determined at the time of their appointment, or, in default of such determination, by any number not less than 2.
[cf. 1929 c. 23 s. 248 U.K.]
252.
Court may appoint and remove liquidator in voluntary winding up
(1)
If from any cause whatever there is no liquidator acting, the court may appoint a liquidator.
(2)
The court may, on cause shown, remove a liquidator and appoint another liquidator.
[cf. 1929 c. 23 s. 249 U.K.]
253.
Notice by liquidator of his appointment or ceasing to act
(1)
The liquidator shall, within 15 days after the date of his appointment—
(Amended 14 of 2016 s. 83)
(a)
publish
by the
specified
means
a notice of his appointment; and
(Amended 22 of 2023 s. 63)
(b)
deliver to the Registrar for registration a notice of his appointment in the specified form, which notice shall include the following particulars—
(i)
his name;
(ii)
his address; and
(iii)
the number of his identity card (if any) or, in the absence of such number, the number and issuing country of any passport held by him.
(2)
A person appointed as a liquidator who ceases to act as such shall, within 15 days after the date of his ceasing to act—
(Amended 14 of 2016 s. 83)
(a)
publish
by the
specified
means
a notice of that fact; and
(Amended 22 of 2023 s. 63)
(b)
deliver to the Registrar for registration a notice of that fact in the specified form.
(3)
If any change occurs in the particulars given in a notice delivered to the Registrar under subsection (1)(b), the liquidator shall, within 15 days after the date of the change, deliver to the Registrar for registration a notice of that change in the specified form, unless he has previously given notice to the Registrar under subsection (2)(b).
(Amended 14 of 2016 s. 83)
(4)
A person who fails to comply with subsection (1), (2) or (3) shall be liable to a fine and, for continued default, to a daily default fine.
(5)
This section does not apply to a provisional liquidator appointed under section 228A(1)(c).
(Amended 14 of 2016 s. 83)
(Replaced 28 of 2003 s. 88)
254.
Arrangement, when binding on creditors
(1)
Any arrangement entered into between a company about to be, or in the course of being, wound up and its creditors shall, subject to the right of appeal under this section, be binding on the company if sanctioned by a special resolution, and on the creditors if acceded to by three-fourths in number and value of the creditors.
(Amended 6 of 1984 s. 176)
(2)
Any creditor or contributory may, within 3 weeks from the completion of the arrangement, appeal to the court against it, and the court may thereupon, as it thinks just, amend, vary, or confirm the arrangement.
[cf. 1929 c. 23 s. 251 U.K.]
255.
Power to apply to court to have questions determined or powers exercised
(1)
The liquidator or any contributory or creditor may apply to the court to determine any question arising in the winding up of a company, or to exercise, as respects the enforcing of calls, or any other matter, all or any of the powers which the court might exercise if the company were being wound up by the court.
(2)
The court, if satisfied that the determination of the question or the required exercise of power will be just and beneficial, may accede wholly or partially to the application on such terms and conditions as it thinks fit, or may make such other order on the application as it thinks just.
(3)
A copy of an order made by virtue of this section staying the proceedings in the winding up shall forthwith be delivered by the company, or otherwise as may be prescribed, to the Registrar for registration.
(Added 6 of 1984 s. 177)
[cf. 1929 c. 23 s. 252 U.K.]
255A.
Audit of liquidator’s accounts in voluntary winding up
(1)
The liquidator shall keep an account of his receipts and payments as liquidator and, subject to subsection (2), shall cause the account to be audited.
(2)
An audit under this section is not required if—
(a)
for a members’ voluntary winding up, the company by ordinary resolution so determines; and
(b)
for a creditors’ voluntary winding up—
(i)
the committee of inspection so determines; or
(ii)
if there is no such committee, the creditors by resolution so determine.
(Replaced 14 of 2016 s. 84)
(Added 6 of 1984 s. 178)
256.
Costs of voluntary winding up
All costs, charges, and expenses properly incurred in the winding up, including the remuneration of the liquidator, shall be payable out of the assets of the company in priority to all other claims.
[cf. 1929 c. 23 s. 254 U.K.]
257.
Saving for rights of creditors and contributories
The winding up of a company shall not bar the right of any creditor or contributory to have it wound up by the court, but in the case of an application by a contributory, the court must be satisfied that the rights of the contributories will be prejudiced by a voluntary winding up.
[cf. 1929 c. 23 s. 255 U.K.]
258.
(Repealed 6 of 1984 s. 179)
259.
(Repealed 6 of 1984 s. 179)
260.
(Repealed 6 of 1984 s. 179)
261.
(Repealed 6 of 1984 s. 179)
262.
(Repealed 6 of 1984 s. 179)
Division 4A
Provisional Liquidator and Liquidator—Restrictions on Appointment, Disqualification, Disclosure and Validity of Acts
(Division 4A added 14 of 2016 s. 85)
262A.
Restrictions on appointment of provisional liquidator or liquidator, etc.
(1)
A person in respect of whom the conditions specified in subsection (2) are not met—
(a)
must not be appointed, or nominated for appointment, as a provisional liquidator or liquidator of a company; and
(b)
must not act as a provisional liquidator or liquidator of a company.
(2)
The conditions are—
(a)
the person is not disqualified under section 262B; and
(b)
for a person required under section 262C(2) to make a disclosure statement—
(i)
the person has made a disclosure statement that complies with section 262D (
disclosure statement
); and(ii)
section 262C(2)(b) is complied with in relation to the disclosure statement.
(3)
(4)
Except as provided in section 237B(3)(a), a person who acts as a provisional liquidator or liquidator in contravention of subsection (1)(b) commits an offence and is liable on conviction to a fine.
262B.
Persons
disqualified from being appointed etc. as provisional liquidator or
liquidator
(1)
This section does not apply in relation to the Official Receiver and, in
addition, subsection (3) does not apply in relation to a members’ voluntary winding
up.
(2)
The following persons are disqualified from being appointed or nominated for
appointment, and from acting, as a provisional liquidator or liquidator of a
company—
(a)
a body corporate;
(b)
an undischarged bankrupt;
(c)
a person against whom a disqualification order is in force, other than such
a person who has the leave of the court to be appointed or to act as the
provisional liquidator or liquidator of the company;
(d)
a person who has been found under the Mental Health Ordinance (Cap. 136) to be incapable, by reason of mental
incapacity, of managing and administering the person’s property and
affairs;
(e)
a person who is subject to a guardianship order made under Part IVB of the
Mental Health Ordinance (Cap. 136).
(3)
Subject to subsection (1), except with the leave of the court, the following
persons are disqualified from being appointed or nominated for appointment, and from
acting, as a provisional liquidator or liquidator of a company—
(a)
a creditor of the company;
(b)
a debtor of the company;
(c)
a director of the company, or a person who has been a director of the
company;
(d)
a company secretary of the company, or a person who has been a company
secretary of the company;
(e)
the auditor of the company, or a person who was the auditor of the company
at any time on or after the starting day of 2 years before the commencement of
the winding up (
former auditor
);(f)
a receiver or manager of the property of the company.
(4)
For the purposes of subsection (3)(a), a person is not a creditor of
the company only because a debt is owed to the person by the company in the person’s
capacity as a provisional liquidator or liquidator of the company.
(5)
For the purposes of subsection (3)(e)—
(a)
if the auditor or the former auditor is a firm, the disqualification under
that subsection extends to the following persons—
(i)
a person who was a partner in the firm when the firm was appointed as
the auditor;
(ii)
a person who became a partner in the firm after the firm had been
appointed as the auditor (whether or not the firm had ceased to be the
auditor when the person became the firm’s partner); and
(b)
if the auditor or the former auditor is a corporate practice as defined by
section 2(1) of the
Accounting
and Financial Reporting Council Ordinance (Cap.
588),
the disqualification under that subsection extends to the following persons—
(Amended L.N. 66 of 2022)
(i)
a person who was a director of the corporate practice when the
corporate practice was appointed as the auditor;
(ii)
a person who became a director of the corporate practice after the
corporate practice had been appointed as the auditor (whether or not the
corporate practice had ceased to be the auditor when the person became its
director).
(6)
In this section—
firm
(商號
) means a firm
as from time to time constituted.262C.
Disclosure statement
(1)
This section does not apply in relation to—
(a)
a members’ voluntary winding up;
(b)
the Official Receiver; or
(c)
a person who is appointed as provisional liquidator by the Official Receiver under section 194(1A).
(2)
Subject to subsection (3), before a person may be appointed, or nominated for appointment, as a provisional liquidator or liquidator—
(a)
the person must make a disclosure statement that complies with section 262D (
disclosure statement
); and(b)
the disclosure statement must be—
(i)
for an appointment by the court—delivered to the court before the appointment;
(ii)
for an appointment or nomination at a meeting of the company, of the creditors or of the contributories—tabled at the meeting before the appointment or nomination (as the case requires); and
(iii)
for an appointment by the directors of the company under section 228A—delivered to the directors before the appointment or tabled at a meeting of directors considering the appointment before the appointment.
(3)
If a person—
(a)
has been appointed as a provisional liquidator under section 193; and
(b)
continues to hold the office of provisional liquidator by virtue of section 194(1)(aa),
then the disclosure statement made by the person for the appointment under section 193 (as supplemented by any supplementary statement that the person may have made under section 262F) is to be taken for the purposes of this Division as the disclosure statement made by the person in respect of the person’s office under section 194(1)(aa), and subsection (2)(b) is taken to have been complied with.
(4)
To avoid doubt, a provisional liquidator of a company who seeks to be appointed, or nominated for appointment, as the liquidator in the winding up of the company must make a disclosure statement under subsection (2) in respect of the office of liquidator.
262D.
Matters to be disclosed in disclosure statement
(1)
A disclosure statement must—
(a)
contain a confirmation by the person making the statement—
(i)
that the person is not disqualified under section 262B; or
(ii)
if the person would have been disqualified under section 262B(2)(c) or (3) but for the leave of the court, that the leave of the court has been obtained; and
(b)
disclose—
(i)
whether any of the relationships set out in subsection (2) exists; and
(ii)
if such a relationship exists—
(A)
the details of the relationship; and
(B)
the person’s reasons for believing that the existence of the relationship would not result in the person having a conflict of interest or duty.
(2)
The relationships are—
(a)
the person making the statement is, or was at any time within 2 years before making the statement—
(i)
a member of the company, its holding company or its subsidiary;
(ii)
a creditor or debtor of the company, its holding company or its subsidiary;
(iii)
a director or company secretary of the company, its holding company or its subsidiary;
(iv)
an employee of the company, its holding company or its subsidiary;
(v)
an auditor of the company;
(vi)
a receiver or manager of the property of the company;
(vii)
a provisional liquidator or liquidator of the company;
(viii)
a legal advisor of the company, its holding company or its subsidiary; or
(ix)
a financial advisor of the company, its holding company or its subsidiary;
(b)
the person making the statement is an immediate family member of an individual who is, or was at any time within 2 years before the making of the statement, a person mentioned in paragraph (a)(iii), (v), (vi) or (vii);
(c)
if the person making the statement is a partner in a firm—
(i)
the firm or any other partner in the firm is, or was at any time within 2 years before the making of the statement, a person mentioned in a subparagraph of paragraph (a);
(ii)
any other partner in the firm is an immediate family member of an individual who is, or was at any time within 2 years before the making of the statement, a person mentioned in paragraph (a)(iii), (v), (vi) or (vii);
(d)
if the person making the statement is a director of a body corporate—
(i)
the body corporate, or any other director or any company secretary of the body corporate, is, or was at any time within 2 years before the making of the statement, a person mentioned in a subparagraph of paragraph (a);
(ii)
any other director or any company secretary of the body corporate is an immediate family member of an individual who is, or was at any time within 2 years before the making of the statement, a person mentioned in paragraph (a)(iii), (v), (vi) or (vii).
(3)
For the purposes of subsection (2)(a)(ii), a person is not a creditor of the company only because a debt is owed to the person by the company in the person’s capacity as provisional liquidator or liquidator of the company.
(4)
A person who, in a disclosure statement omits to state any relationship required to be disclosed under subsection (1)(b) commits an offence and is liable on conviction to a fine.
(5)
If a person is charged with an offence under subsection (4) for omitting to state a relationship, it is a defence for the person to prove that the person, after having made all reasonable enquiries, had no reasonable grounds for believing that the relationship existed.
(6)
In this section—
firm
(商號
) means a firm as from time to time constituted;immediate family member
(家人
), in relation to an individual, means a spouse, parent, child, sibling, grandparent or grandchild of the individual.262E.
Convenor’s duty concerning disclosure statement
(1)
Subject to subsection (2), the convenor of a meeting at which the appointment, or nomination for appointment, of a provisional liquidator or liquidator is to be considered must ensure that subsections (3) and (4) are complied with.
(2)
Subsection (1) does not apply in relation to a members’ voluntary winding up unless the convenor of the meeting is a liquidator who is required to summon a meeting of the creditors under section 237A.
(3)
Notice of the meeting referred to in subsection (1) must—
(a)
be accompanied by—
(i)
a copy of the disclosure statement made under section 262C by each person who is proposed to be appointed, or nominated for appointment, as the provisional liquidator or liquidator; and
(ii)
if the meeting is summoned under section 237A and the liquidator is required to make a disclosure statement under section 237A(1B), a copy of the disclosure statement made under section 237A(1B); and
(b)
state that a member, director, creditor or contributory (as the case requires) who wishes to propose a person (other than being a person mentioned in paragraph (a)) for appointment, or for nomination for appointment, as the provisional liquidator or liquidator must, before the meeting, send to the convenor a disclosure statement made by that other person under section 262C.
(4)
The disclosure statements mentioned in subsection (3)(a) and all other disclosure statements received before the meeting must be tabled at the meeting.
(5)
A convenor who contravenes subsection (1) commits an offence and is liable on conviction to a fine.
(6)
In this section—
convenor
(召集人
) means any person who summons a meeting of—(a)
the company;
(b)
the directors of the company;
(c)
the creditors of the company; or
(d)
the contributories of the company.
262F.
Updating disclosure statement
(1)
This section applies to a provisional liquidator or liquidator who has made a disclosure statement under section 262C(2) or 237A(1B).
(2)
If a provisional liquidator or liquidator of a company becomes aware of—
(a)
a relationship referred to in section 262D(2) that has not been disclosed in the subsisting disclosure statement made by the provisional liquidator or liquidator in respect of his or her office of provisional liquidator or liquidator of the company;
(b)
a change in any of the facts or relationships confirmed or disclosed in the subsisting disclosure statement; or
(c)
an error in the subsisting disclosure statement,
the provisional liquidator or liquidator must, within 14 days from the day when he or she becomes aware of the relationship, change or error, make a supplementary statement that complies with subsection (3) and take the steps as required under subsection (4), (5) or (6).
(3)
The supplementary statement must provide details of the relationship, change or error referred to in subsection (2).
(4)
In the case of a provisional liquidator appointed under section 193, and in the case of such a provisional liquidator who continues to act under section 194(1)(aa), the provisional liquidator must—
(a)
submit the subsisting disclosure statement and the supplementary statement to the court; and
(b)
apply to the court for directions.
(5)
In the case of a provisional liquidator appointed under section 228A, the provisional liquidator must send a copy of the subsisting disclosure statement and the supplementary statement to each director of the company.
(6)
In the case of a liquidator, the liquidator must send a copy of the subsisting disclosure statement and the supplementary statement to each creditor of the company.
(7)
A provisional liquidator or liquidator who contravenes subsection (2) commits an offence and is liable on conviction to a fine.
(8)
In this section—
subsisting disclosure statement
(存續披露陳述書
) means a disclosure statement made under section 262C(2) or 237A(1B) and includes any supplementary statement that may have been made under this section in respect of the disclosure statement.262G.
Validity of acts of provisional liquidator and liquidator
(1)
The acts of a person acting as a provisional liquidator or liquidator are valid even if it is afterwards discovered that—
(a)
there was a defect in the appointment or nomination for appointment of the person as a provisional liquidator or liquidator;
(b)
the person was not qualified to hold office as a provisional liquidator or liquidator or was disqualified from holding office as a provisional liquidator or liquidator; or
(c)
the person had ceased to be a provisional liquidator or liquidator.
(2)
Subsection (1) applies even if the appointment of the person as a provisional liquidator or liquidator is void under section 228A(8A) or 262A(3).
263.
Debts of all descriptions to be proved
In every winding up (subject in the case of insolvent companies to the application in accordance with the provisions of this Ordinance of the law of bankruptcy) all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof against the company, a just estimate being made, so far as possible, of the value of such debts or claims as may be subject to any contingency or sound only in damages, or for some other reason do not bear a certain value.
[cf. 1929 c. 23 s. 261 U.K.]
264.
Application of bankruptcy rules in winding up of insolvent companies
In the winding up of an insolvent company the same rules shall prevail and be observed with regard to the respective rights of secured and unsecured creditors and to debts provable and to the valuation of annuities and future and contingent liabilities as are in force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt, and all persons who in any such case would be entitled to prove for and receive dividends out of the assets of the company may come in under the winding up, and make such claims against the company as they respectively are entitled to by virtue of this section.
(Amended 6 of 1984 s. 180)
[cf. 1929 c. 23 s. 262 U.K.]
264A.
Interest on debts
(1)
In the winding up of a company, not being an insolvent company, interest is payable in accordance with this section on the taxed costs of the petition and any debt proved in the winding up, including so much of any such debt as represents interest on the remainder.
(Amended 46 of 2000 s. 33)
(2)
Any surplus remaining after the payment of debts proved in a winding up referred to in subsection (1) shall, before being applied for any other purpose, be applied in paying interest on the taxed costs of the petition and those debts in respect of the period during which the taxed costs of the petition and the debt have been outstanding, in the case of—
(Amended 46 of 2000 s. 33)
(a)
a winding up by court—
(i)
where the company has by special resolution resolved that the company be wound up, since the date of the resolution; and
(ii)
in any other case, since the date of the winding-up order; and
(b)
a voluntary winding up, since the commencement of the winding up (which must be construed having regard to section 228A(5)(a) or 230, as may be appropriate).
(Amended 28 of 2003 s. 89)
(3)
All interest under this section ranks equally, whether or not the debts on which it is payable rank equally.
(4)
The rate of interest payable under this section in respect of any debt is whichever is the greater of the following—
(a)
the rate specified under section 49(1)(b) of the High Court Ordinance (Cap. 4); and
(Amended 25 of 1998 s. 2)
(b)
the rate applicable to that debt apart from the winding up.
(Added 3 of 1997 s. 43)
[cf. 1986 c. 45 s. 189 U.K.]
264B.
Extortionate credit transactions
(1)
This section applies, in relation to a company being wound up where the company is, or has been, a party to a transaction for, or involving, the provision of credit to the company.
(2)
The court may, on the application of the liquidator, make an order with respect to the transaction if the transaction is or was extortionate and was entered into in the period of 3 years ending on, in the case of—
(a)
a winding up by court—
(i)
where the company has by special resolution resolved that the company be wound up, the date of the resolution; and
(ii)
in any other case, the date of the winding-up order; and
(b)
a voluntary winding up, the commencement of the winding up (which must be construed having regard to section 228A(5)(a) or 230, as may be appropriate).
(Amended 28 of 2003 s. 90)
(3)
For the purposes of this section a transaction is extortionate if, having regard to the risk accepted by the person providing the credit—
(a)
the terms of it are or were such as to require grossly exorbitant payments to be made (whether unconditionally or in certain contingencies) in respect of the provision of credit; or
(b)
it otherwise grossly contravenes ordinary principles of fair dealing,
and it shall be presumed, unless the contrary is proved, that a transaction with respect to which an application is made under this section is or, as the case may be, was extortionate.
(4)
An order under this section with respect to any transaction may contain such one or more of the following as the court thinks fit, that is to say—
(a)
provision setting aside the whole or part of any obligation created by the transaction;
(b)
provision otherwise varying the terms of the transaction or varying the terms on which any security for the purposes of the transaction is held;
(c)
provision requiring any person who is or was a party to the transaction to pay to the liquidator any sums paid to that person, by virtue of the transaction, by the company;
(d)
provision requiring any person to surrender to the liquidator any property held by him as security for the purposes of the transaction; or
(e)
provision directing accounts to be taken between any persons.
(Added 3 of 1997 s. 43)
[cf. 1986 c. 45 s. 244 U.K.]
265.
Preferential payments
(1)
In a winding up there shall be paid in priority to all other debts—
(a)
(Repealed 6 of 1984 s. 181)
(b)
any—
(i)
payment from the Protection of Wages on Insolvency Fund under
section 18 of the Protection of Wages on Insolvency Ordinance
(Cap. 380) to any clerk or servant in
respect of wages or salary or both in respect of services rendered to the
company if such payment was made during a period of 4 months before the
commencement of the winding up; and
(Amended 48 of 1987 s. 8)
(ii)
wages and salary (including commission provided that the amount thereof
is fixed or ascertainable at the relevant date) of any clerk or servant in
respect of services rendered to the company during the relevant period not
exceeding, together with any payment under sub-paragraph (i), $3,000;
(Replaced 12 of 1985 s. 29)
(c)
any—
(i)
payment from the Protection of Wages on Insolvency Fund under
section 18 of the Protection of Wages on Insolvency Ordinance
(Cap. 380) to any labourer or workman in
respect of wages, whether payable for time or for piece work, in respect of
services rendered to the company if such payment was made during a period of
4 months before the commencement of the winding up; and
(Amended 48 of 1987 s. 8)
(ii)
wages of any labourer or workman, whether payable for time or for piece
work, in respect of services rendered to the company during the relevant
period not exceeding, together with any payment under sub-paragraph (i),
$3,000;
(Replaced 12 of 1985 s. 29)
(ca)
any severance payment payable to an employee under the Employment Ordinance
(Cap. 57), not exceeding in respect of each
employee $6,000;
(Added 55 of 1974 s. 2)
(caa)
any long service payment payable to an employee under
the Employment Ordinance (Cap. 57), not exceeding in
respect of each employee $8,000;
(Added 77 of 1985 s. 2)
(cb)
any amount due in respect of compensation or liability for compensation
under the Employees’ Compensation Ordinance (Cap.
282) accrued before the relevant date and, where the compensation is a
periodical payment, the amount due in respect thereof shall be taken to be the
amount of the lump sum for which the periodical payment could, if redeemable, be
redeemed on an application being made for that purpose under the Employees’
Compensation Ordinance (Cap. 282), but this
paragraph shall not apply to any amount due in respect of compensation or
liability for compensation where the company has entered into a contract with a
person carrying on accident insurance business in Hong Kong in respect of its
liability under the Employees’ Compensation Ordinance (Cap. 282) for personal injury by accident to the employee to whom the
compensation or liability for compensation is due or where the company is wound
up voluntarily merely for the purposes of reconstruction or of amalgamation with
another company;
(Added 4 of 1977 s. 2. Amended 6 of 1984 s. 259)
(cc)
any wages in lieu of notice payable to an employee under the Employment
Ordinance (Cap. 57), not exceeding in respect of
each employee one month’s wages or $2,000 whichever is the lesser;
(Added 4 of 1977 s. 2)
(cd)
all accrued holiday remuneration becoming payable to any clerk, servant,
workman or labourer (or in the case of his death to any other person in his
right) on the termination of his employment before or by the effect of the
winding-up order or resolution;
(Added 6 of 1984 s. 181)
(ce)
any payment from the Employees Compensation Assistance Fund under Part IV
of the Employees Compensation Assistance Ordinance (Cap.
365) representing an amount due by the company in respect of
compensation or liability for compensation under the Employees’ Compensation
Ordinance (Cap. 282) accrued before the relevant
date;
(Added 54 of 1991 s. 47)
(cf)
any amount of unpaid contribution or any amount deemed to be unpaid
contribution calculated in accordance with rules made under section
73(1)(n) of the Occupational Retirement Schemes Ordinance (Cap. 426) which should have been paid by the
company being wound up in accordance with the terms of an occupational
retirement scheme within the meaning of that Ordinance before the
commencement of the winding up:
Provided that where such
amount exceeds $50,000 in respect of an employee, 50% of such part of the
amount that exceeds $50,000 shall not be paid in priority to all other debts
under this subsection;
(Added 88 of 1992 s. 84)
(cg)
(without prejudice to any right or liability under a trust) any amount of
salaries deducted by the company being wound up from its employees’ salaries for
the purpose of making contributions in respect of such employees to the funds of
an occupational retirement scheme within the meaning of the Occupational
Retirement Schemes Ordinance (Cap. 426) which have
not been paid into such funds;
(Added 88 of 1992 s. 84)
(ch)
any amount of unpaid contribution under, or any amount of unpaid
contribution calculated in accordance with, the Mandatory Provident Fund
Schemes Ordinance (Cap. 485) which should have
been paid by the company being wound up in accordance with the provisions of
that Ordinance before the commencement of the winding up:
Provided that where such
amount exceeds $50,000 in respect of an employee, 50% of such part of the
amount that exceeds $50,000 shall not be paid in priority to all other debts
under this subsection;
(Added 80 of 1995 s. 49)
(ci)
any amount deducted by the company being wound up from the relevant income
of its relevant employees for the purpose of making contributions in respect of
such relevant employees to the approved trustee of a registered scheme within
the meaning of the Mandatory Provident Fund Schemes Ordinance (Cap. 485) which have not been paid to that approved
trustee;
(Added 80 of 1995 s. 49)
(cj)
any sum and interest thereon payable to the Mandatory Provident Fund
Schemes Authority under section 17(7) of the Mandatory Provident Fund
Schemes Ordinance (Cap. 485);
(Added 80 of 1995 s. 49)
(d)
all statutory debts due from the company to the Government at the relevant
date and which became due and payable within 12 months next before that
date.
(Replaced 6 of 1984 s. 181. Amended 23 of 1999 s. 3)
(da)
(Repealed 30 of 1999 s. 18)
#(db)
where the company being wound up is or was a bank and, at the commencement
of the winding up, held deposits, to each depositor—
(Amended 7 of 2004 s. 55)
(i)
in respect of the deposits, or portion thereof, that the depositor
holds in his own right, the aggregate amount so held on deposit, up to the
limit on the total amount of compensation to which a depositor is entitled
as prescribed in section 27(1) of the Deposit Protection Scheme
Ordinance (Cap. 581), regardless of the number
of deposits;
(ii)
in respect of the deposits, or portion thereof, that the depositor
holds as a bare trustee for each of the beneficiaries, the aggregate amount
so held on deposit, up to, subject to subsection (5J), the limit on the
total amount of compensation to which a depositor is entitled as prescribed
in section 27(1) of the Deposit Protection Scheme Ordinance (Cap. 581), regardless of the number of deposits
so held for the beneficiary;
(iii)
in respect of the deposits, or portion thereof, that the depositor
holds in a client account for each of the clients, the aggregate amount so
held on deposit, up to, subject to subsection (5J), the limit on the total
amount of compensation to which a depositor is entitled as prescribed in
section 27(1) of the Deposit Protection Scheme Ordinance
(Cap. 581), regardless of the number of
deposits so held for the client; and
(iv)
in respect of the deposits, or portion thereof, that the depositor
holds as a trustee (but not a bare trustee) under each of the trusts, the
aggregate amount so held on deposit, up to the limit on the total amount of
compensation to which a depositor is entitled as prescribed in section
27(2) of the Deposit Protection Scheme Ordinance (Cap. 581), regardless of the number of deposits
so held under the trust;
Note—
In section 265(1)(db)(i), (ii), (iii) and (iv), the amount
of compensation under section 27(1) or section 27(2)
of the Deposit Protection Scheme Ordinance (Cap. 581) is subject
to the specified provisions as defined by section 27(3) of that
Ordinance (if those provisions apply).
(Added 19 of 2024 s. 23)
(e)
where the company being wound up is an insurer, any sum payable to a person
in respect of any claim (other than a claim for a refund of premium) made under
or in accordance with a contract of insurance (but not a contract of
reinsurance) effected by the insurer as part of its general business carried on
in or from Hong Kong, unless—
(i)
such sum is, under the contract or in the ordinary course of business,
payable in a place outside Hong Kong where assets of the company are
maintained and under the law of that place the claim in respect of which the
sum is payable is, in the event of a winding up, accorded priority with
respect to those assets over claims which under the contract or in the
ordinary course of business are payable at any other place;
or
(ii)
the person to whom the sum is payable is entitled with respect to the
claim to claim compensation under any scheme designed to secure compensation
to persons in circumstances where the insurer becomes insolvent;
(Added 79 of 1988 s. 8)
(ea)
where the company being wound up is an insurer, any payment from the
Employees Compensation Assistance Fund under Part IV of the Employees
Compensation Assistance Ordinance (Cap. 365)
representing a sum payable by the company to a person in respect of any claim
(other than a claim for refund of premium) made under or in accordance with a
contract of insurance issued for the purposes of Part IV of the Employees’
Compensation Ordinance (Cap. 282) effected by the
insurer as part of its general business carried on in or from Hong Kong; unless
such sum is, under the contract or in the ordinary course of business, payable
in a place outside Hong Kong where assets of the company are maintained and
under the law of that place the claim in respect of which the sum is payable is,
in the event of a winding up, accorded priority with respect to those assets
over claims which under the contract or in the ordinary course of business are
payable at any other place;
(Added 54 of 1991 s. 47)
(f)
where the company being wound up is an insurer, any sum payable (after
offsetting the amount of any sums owing from the claimant) to a person in
respect of any claim (other than a claim for a refund of premium) made under or
in accordance with a contract of reinsurance effected by the insurer, as
reinsurer, as part of its general business carried on in or from Hong Kong,
unless such sum is, under the contract or in the ordinary course of business,
payable in a place outside Hong Kong where assets of the company are maintained
and under the law of that place the claim in respect of which the sum is payable
is, in the event of a winding up, accorded priority with respect to those assets
over claims which under the contract or in the ordinary course of business are
payable at any other place.
(Added 79 of 1988 s. 8)
(1A)
Where the relevant date is on or after 1 June 1970 but before 1 April 1977, the
sum of $6,000 shall be deemed to be substituted in each case for the sums of $3,000
referred to in paragraphs (b) and (c) respectively of subsection (1).
(Added 41 of 1970 s. 2. Amended 4 of 1977 s. 2)
(1B)
Where the relevant date is on or after 1 April 1977, the sum of $8,000 shall be
deemed to be substituted in each case for the sums of $3,000 referred to in
paragraphs (b) and (c) respectively, and for the sum of $6,000 referred to in
paragraph (ca), of subsection (1).
(Added 4 of 1977 s. 2)
(2)
Subject to subsection (1)(b) and (c), where any payment on account
of wages or salary, or severance payment, or long service payment or wages in lieu
of notice payable under the Employment Ordinance (Cap.
57), or accrued holiday remuneration, has been made to any clerk, servant,
workman or labourer in the employment of a company out of money advanced by some
person for that purpose, that person shall in a winding up have a right of priority
in respect of the money so advanced and paid up to the amount by which the sum in
respect of which that clerk, servant, workman or labourer would have been entitled
to priority in the winding up has been diminished by reason of the payment having
been made.
(3)
The debts specified in subsection (1)(b), (c), (ca), (caa), (cb),
(cc), (cd), (ce), (cf), (cg), (ch), (ci) and (cj)—
(a)
shall have priority over the debts specified in subsection
(1)(d);
(b)
shall rank equally among themselves;
and
(c)
shall be paid in full unless the assets are insufficient to meet them, in
which case they shall abate in equal proportions among themselves.
(Replaced 41 of 1970 s. 2)
(3A)
(3AAA)
The
debts specified in subsection (1)(da) shall have priority over the debts
specified in subsection (1)(db), (e), (ea) and (f).
(Added 10 of 1993 s. 2. Amended 83 of 1995 s. 16)
(3AAAA)
The debts specified in subsection (1)(db)—
(a)
shall have priority over the debts in subsection (1)(e), (ea)
and (f);
(b)
shall rank equally among themselves; and
(c)
shall be paid in full unless the assets are insufficient to meet them, in
which case they shall abate in equal proportions among themselves.
(Added 83 of 1995 s. 16)
(3AA)
The debts specified in subsection (1)(e) and (ea)—
(a)
shall have priority over the debts specified in subsection
(1)(f);
(b)
shall rank equally among themselves; and
(c)
shall be paid in full unless the assets are insufficient to meet them, in
which case they shall abate in equal proportions among themselves.
(Added 79 of 1988 s. 8. Amended 54 of 1991 s. 47)
(3AB)
The debts specified in subsection (1)(f)—
(a)
shall rank equally among themselves;
and
(b)
shall be paid in full unless the assets are insufficient to meet them, in
which case they shall abate in equal proportions among themselves.
(Added 79 of 1988 s. 8)
(3B)
The debts specified in subsection (1) shall, so far as the assets of the
company available for payment of general creditors are insufficient to meet those
debts, have priority over the claims of holders of debentures under any charge
created as a floating charge by the company, and shall be paid accordingly out of
any property comprised in or subject to the charge.
(Added 41 of 1970 s. 2. Amended 10 of 1987 s. 9)
(4)
Subject to the retention of such sums as may be necessary for the costs and
expenses of the winding up, the foregoing debts shall be discharged forthwith so far
as the assets are sufficient to meet them.
(5)
In the event of a landlord or other person distraining or having distrained on
any goods or effects of the company within 3 months next before the date of a
winding-up order, the debts to which priority is given by this section shall be a
first charge on the goods or effects so distrained on, or the proceeds of the sale
thereof.
(Amended 41 of 1970 s. 2)
(5A)
Any money paid under a charge under subsection (5) shall be a debt due from the
company to the landlord or other person having distrained, and such debt shall be
discharged so far as the assets are sufficient to meet it after payment of the debts
specified in subsection (1) but before payment of the other debts proved in the
winding up.
(Added 41 of 1970 s. 2)
(5B)
Where in any winding up assets have been recovered under an indemnity for costs
of litigation given by certain creditors, or have been protected or preserved by the
payment of moneys or the giving of indemnity by creditors, or where expenses in
relation to which a creditor has indemnified a liquidator have been recovered, the
court may, on the application of the Official Receiver or the liquidator or any such
creditor, make such order as it deems just with respect to the distribution of those
assets and the amount of those expenses so recovered with a view to giving those
creditors an advantage over others in consideration of the risk run by them in so
doing.
(Added 6 of 1984 s. 181)
(5C)
Any remuneration in respect of a period of holiday or of absence from work
through sickness or other good cause shall be deemed to be wages in respect of
services rendered to the company during that period.
(Added 6 of 1984 s. 181)
(5D)
The deposits given priority under subsection (1)(db) do not include
the following—
(a)
terms deposits where the current term agreed to by the depositor at the
most recent time it was negotiated exceeds 5 years;
(b)
deposits made after the date of publication of a notice in the Gazette
under section
21(2)(b)
of the Banking Ordinance (Cap. 155) that the
company has been removed from the register and has ceased to be a bank.
(Added 83 of 1995 s. 16. Amended 19 of 2024 s. 23)
(5E)
If—
(a)
an arrangement has been entered into or carried out on or after the
specified date in relation to a deposit with the company except where the
arrangement is one in pursuance of a legally enforceable obligation incurred
prior to that date;
(b)
the arrangement has, or would have had but for this subsection, the effect
of enabling a person to become entitled to priority under subsection
(1)(db), to which the person would otherwise not be entitled;
and
(c)
it would be concluded, having regard to—
(i)
the manner in which, and the circumstances under which, the arrangement
was entered into or carried out;
(ii)
the form and substance of the arrangement; and
(iii)
the result in relation to the operation of this Ordinance that, but for
this subsection, would have been achieved by the arrangement,
that the arrangement was entered into or carried out for the sole or
dominant purpose of enabling the person, either alone or in conjunction with
other persons, to become entitled to priority under subsection
(1)(db), to which the person would otherwise not be
entitled,
the
priority given under subsection (1)(db) shall apply as if the arrangement
or any part thereof had not been entered into or carried out.
(Replaced 7 of 2004 s. 55)
(5F)
Deposits given priority under subsection (1)(db) do not
include—
(a)
a deposit held for the account of the Exchange Fund established by the
Exchange Fund Ordinance (Cap. 66);
(b)
a deposit held by an excluded person in his own right, or, in the case of a
deposit held by an excluded person and a non-excluded person in their own right
(except where those persons carry on business in partnership), the portion of
the deposit attributable to the excluded person’s share in the
deposit;
(c)
a deposit held by a depositor as a bare trustee for an excluded person, or
in a client account for an excluded person as the depositor’s client, or, in the
case of a deposit so held for an excluded person and a non-excluded person
(except where those persons carry on business in partnership), the portion of
the deposit attributable to the excluded person’s share in the deposit;
and
(d)
a deposit held by a depositor as a trustee (but not a bare trustee) for an
excluded person only.
(Replaced 7 of 2004 s. 55)
(5G)
For the purposes of subsection (5F)(b) and (c), if a deposit is held
by more than one person in their own right or held for more than one person, each of
those persons is deemed to have an equal share in the deposit unless the contrary is
proved to the satisfaction of the liquidator or provisional liquidator.
(Added 7 of 2004 s. 55)
(5H)
For the purposes of paragraph (db) of subsection (1)—
(a)
if the depositor referred to in subparagraph (i) of that paragraph consists
of 2 or more persons—
(i)
in the case where the persons carry on business in partnership, those
persons are, for the purpose of priority given under that paragraph, a
single and continuing body of persons as distinct from the persons who may
from time to time be the members of the partnership;
(ii)
in any other case, each of those persons is deemed to have an equal
share in the deposit, or the relevant portion thereof, unless the contrary
is proved to the satisfaction of the liquidator or provisional
liquidator;
(b)
if the beneficiary or client referred to in subparagraph (ii) or (iii) of
that paragraph consists of 2 or more persons—
(i)
in the case where the persons carry on business in partnership, those
persons are, for the purpose of priority given under that paragraph, a
single and continuing body of persons as distinct from the persons who may
from time to time be the members of the partnership;
(ii)
in any other case, each of those persons is deemed to have an equal
share in the deposit, or the relevant portion thereof, unless the contrary
is proved to the satisfaction of the liquidator or provisional liquidator;
and
(c)
if the depositor referred to in subparagraph (iv) of that paragraph
consists of 2 or more persons, those persons are, for the purpose of priority
given under that paragraph, a single and continuing body of persons as distinct
from the persons who may from time to time be the trustees.
(Added 7 of 2004 s. 55)
(5I)
If a deposit, or portion thereof, held by a depositor in a client account for a
client is also held by the depositor as a trustee (whether a bare trustee or not)
under a trust (whether a bare trust or not), the deposit or portion is, for the
purposes of this section, taken as being held by the depositor for the client and
not as such trustee.
(Added 7 of 2004 s. 55)
(5J)
If—
(a)
a person has more than one of the following capacities—
(i)
a depositor holding one or more deposits, or portion thereof, in his
own right;
(ii)
a beneficiary for whom one or more deposits, or portion thereof, is or
are held by a depositor as a bare
trustee;
(iii)
a client for whom one or more deposits, or portion thereof, is or are
held by a depositor in a client account; and
(b)
the aggregate of the amount that shall be paid in priority under subsection
(1)(db)(i), (ii) or (iii) in respect of the relevant deposits or
portions would, but for this subsection, have exceeded the limit on the total
amount of compensation to which a person is entitled as prescribed in
section 27(1) of the Deposit Protection Scheme Ordinance (Cap. 581),
the amount that shall be paid in priority under subsection
(1)(db)(ii) or (iii) shall abate in equal proportions among
themselves so that the aggregate referred to in paragraph (b) shall be that limit
prescribed in section 27(1) of the Deposit Protection Scheme Ordinance
(Cap. 581).
Note—
In section 265(5J), the amount of compensation under
section 27(1) of the Deposit Protection Scheme Ordinance
(Cap. 581) is subject to the specified provisions as defined by
section 27(3) of that Ordinance (if those provisions apply).
(Added 19 of 2024 s. 23)
(6)
In this section—
accrued holiday remuneration
(累算的假日薪酬
) includes, in relation to any person, all
sums which, by virtue either of his contract of employment or of any enactment
(including any order made or direction given under any Ordinance), are payable on
account of the remuneration which would, in the ordinary course, have become payable
to him in respect of a period of holiday had his employment with the company
continued until he became entitled to be allowed the holiday, and, without
limitation, includes any pay for untaken statutory holidays and pay for untaken
annual leave; (Amended 7 of 2012 s. 11)
arrangement
(安排
)
includes an arrangement, transaction, operation or scheme whether or not such
arrangement, transaction, operation or scheme is enforceable, or intended to be
enforceable, by legal proceedings; (Added 7 of 2004 s. 55)
bare trustee
(被動受託人
) has the same meaning as in the Deposit Protection Scheme
Ordinance (Cap. 581); (Added 7 of 2004 s. 55)
chief executive
(行政總裁
) has the same meaning as in the Banking Ordinance (Cap. 155); (Added 7 of 2004 s. 55)
client account
(客戶帳戶
), in relation to a depositor, means an account maintained by the
depositor with a bank for the purpose of holding money held by the depositor for a
client of the depositor, whether or not other money may be held in the
account; (Added 7 of 2004 s. 55)
controller
(控權人
)
has the same meaning as in the Banking Ordinance (Cap.
155); (Added 83 of 1995 s. 16. Amended 7 of 2004 s. 55)
deposit
(存款
) and depositor
(存款人
)
have the same meaning as in the Deposit Protection Scheme Ordinance (Cap. 581); Employees Compensation Assistance
Fund
(僱員補償援助基金
) means the fund
established by section 7 of the Employees Compensation Assistance
Ordinance (Cap. 365); (Added 54 of 1991 s. 47)
excluded person
(豁除人士
), in
relation to a deposit maintained with the company being wound up,
means—(a)
a related company of the company;
(b)
an officer of the company being wound up or its related company
on—
(i)
the date immediately preceding the date on which a Manager within
the meaning of section 2(1) of the Banking Ordinance (Cap. 155) is appointed in respect of the
company being wound up under section 52 of that Ordinance; or
(ii)
the date on which the petition for the winding up of the company
being wound up is presented,
whichever is the earlier;
(c)
a multilateral development bank as defined in section 2(1)
of the Banking Ordinance (Cap. 155);
(Amended 19 of 2005 s. 7)
(d)
an authorized financial institution; or
(e)
a foreign bank;
(Added 7 of 2004 s. 55)
foreign bank
(外地銀行
) means a
company that—(a)
is incorporated outside Hong Kong;
(b)
is not an authorized financial institution; and
(c)
may, in or outside the place where it is incorporated, lawfully take
deposits from the general public (whether or not on current account), or is
authorized or recognized as a bank in that place;
(Added 7 of 2004 s. 55)
general business
(一般業務
) means insurance business not being long term business as defined
in section 2(1) of the
Insurance
Ordinance (Cap. 41); (Added 79 of 1988 s. 8. Amended 12 of 2015 s. 100)
officer
(人員
), in relation to
a company that is an authorized financial institution, means—(a)
a director of the company;
(b)
a chief executive of the company;
(c)
a controller of the company; or
(d)
a manager of the company;
(Added 7 of 2004 s. 55)
pay for untaken annual leave
(未放年假薪酬
), in relation to any person, means any sum which, by virtue
either of the person’s contract of employment or of any enactment (including any
order made or direction given under any Ordinance), is payable—(a)
in respect of annual leave to which the person has become entitled to
be allowed but which the person has not taken; or
(b)
on account of the remuneration in respect of annual leave that would
have become payable to the person if the person’s employment had continued
until the person became entitled to be allowed the annual leave,
and, without limitation, includes any sum payable under section
41D of the Employment Ordinance (Cap.
57);
(Added 7 of 2012 s. 11)
pay for untaken statutory
holidays
(未放法定假日薪酬
) means any sum
payable under the Employment Ordinance (Cap. 57) or a
contract of employment in respect of a statutory holiday (within the meaning of that
Ordinance) that has not been taken as a holiday (within the meaning of that
Ordinance); (Added 7 of 2012 s. 11)
Protection of Wages on Insolvency
Fund
(破產欠薪保障基金
) means the fund deemed
to be established and continued in existence under section 6 of the
Protection of Wages on Insolvency Ordinance (Cap.
380); (Added 12 of 1985 s. 29(3))
related company
(關連公司
), in
relation to a company, means—(a)
a subsidiary of the company;
(b)
a holding company of the company; or
(c)
a subsidiary of the holding company;
(Added 7 of 2004 s. 55)
specified date
(指明日期
), in
relation to a company, means—(a)
the date on which a Manager within the meaning of section
2(1) of the Banking Ordinance (Cap.
155) is appointed in respect of the company under section
52 of that Ordinance; or
(b)
the date on which the petition for the winding up of the company is
presented,
whichever is the earlier;
(Added 7 of 2004 s. 55)
statutory debt
(法定債項
) means a debt the liability for which and the amount of which are
determined by or under any provision in any Ordinance; (Amended 23 of 1999 s. 3)
the relevant date
(有關日期
)
means—(a)
in the case of a company ordered to be wound up compulsorily, the date
of the appointment (or first appointment) of a provisional liquidator or, if
no such appointment was made, the date of the winding-up order, unless in
either case the company had commenced to be wound up voluntarily before that
date; and
(b)
in any case where paragraph (a) does not apply, the date of the
commencement of the winding
up;
the relevant period
(有關期間
)
means—(a)
in a case where a company is being wound up by the court and the
relevant date in the case of that company is a date other than the date of
the commencement of the winding up, the period—
(i)
beginning 4 months next before the commencement of the winding up
and ending on the relevant date; or
(ii)
beginning 4 months next before the last day of service within the
meaning of section 16(4) of the Protection of Wages on
Insolvency Ordinance (Cap. 380) of any
clerk or servant or labourer or workman, as the case may be, who has
made an application for an ex gratia payment under section
15(1) of that Ordinance, and ending on that last day of
service,
(Replaced 68 of 1996 s. 5)
whichever is the earlier;
(b)
in any case where paragraph (a) does not apply, the period—
(i)
of 4 months next before the relevant date; or
(ii)
beginning 4 months next before the last day of service within the
meaning of section 16(4) of the Protection of Wages on
Insolvency Ordinance (Cap. 380) of any
clerk or servant or labourer or workman, as the case may be, who has
made an application for an ex gratia payment under section
15(1) of that Ordinance, and ending on that last day of
service,
(Replaced 68 of 1996 s. 5)
whichever is the earlier;
(Replaced 48 of 1987 s. 8)
wages
(工資
) includes,
in relation to any person, any sum which, by virtue of his contract of employment,
is payable to him as a Lunar New Year bonus, but does not include any accrued
holiday remuneration. (Replaced 6 of 1984 s. 181)
(Amended E.R. 2 of 2012)
(7)
The Companies (Amendment) Ordinance 1984 (6 of
1984) shall not apply in the case of a winding up where the relevant date
occurred before the
commencement@
of that Ordinance, and, in such a case, the provisions relating to preferential
payments which would have applied if that Ordinance had not been enacted shall be
deemed to remain in full force.
(Added 6 of 1984 s. 181)
(8)
The Fourth Schedule to the Protection of Wages on Insolvency
Ordinance 1985 (12 of 1985) shall not apply in the
case of a winding up where the date of the commencement of the winding up occurred
before the
commencement##
of that Ordinance, and, in such case, the provisions relating to preferential
payments which would have applied if that Ordinance had not been enacted shall be
deemed to remain in full force
(Added 12 of 1985 s. 29(3))
(9)
The Companies (Amendment) (No. 3) Ordinance 1988 (79 of
1988) shall not apply in the case of a winding up where the date of the
commencement of the winding up occurred before the commencement of that Ordinance,
and, in such a case, the provisions relating to preferential payments which would
have applied if that Ordinance had not been enacted shall be deemed to remain in
full force.
(Added 79 of 1988 s. 8)
(10)
Section 5(a) of the Protection of Wages on Insolvency (Amendment)
Ordinance 1996 (68 of 1996) (the amending
Ordinance) shall not apply in the case of a winding up to which an
application under section 15(1) of the Protection of Wages on Insolvency
Ordinance (Cap. 380) relates where such application is
made before the
commencement†of
the amending Ordinance, and in such a case, the provisions relating to preferential
payments which would have applied if the amending Ordinance had not been enacted
shall be deemed to remain in full force.
(Added 68 of 1996 s. 5)
(11)
In the case of a winding up where the relevant date has occurred before the
commencement††of
the Schedule to the Deposit Protection Scheme (Amendment) Ordinance 2010
(11 of 2010), that Schedule applies in
relation to that winding up if the specified event within the meaning of
section 22(1) of the Deposit Protection Scheme Ordinance (Cap. 581) occurs on or after the commencement of that
Schedule.
(Added 11 of 2010 s. 14)
[cf. 1929 c. 23 s. 264 U.K.]
Editorial Note:
#
Section
265(1)(da) was repealed by the Companies (Amendment) Ordinance 1999 (30 of 1999). Section 43 of that Ordinance
provides as
follows—
“43.
Savings
Despite the repeal of sections
265(1)(da), 290A, 290B and 290E
of the principal Ordinance, those sections are to continue to have effect in
relation to a company that has been struck off under section 290A
of the principal Ordinance as if those sections had not been
repealed.”.
@
Commencement
date: 31 August 1984.
##
Commencement date: 19 April 1985.
†
Commencement
date: 6 December 1996.
††
Commencement date: 1 January 2011.
265A.
Interpretation
of Subdivision 2
(1)
For the purposes of this Subdivision, the question of whether a person is an
associate of another person is to be determined in accordance with sections
265B and 265C.
(2)
In sections 265B and 265C, a provision that a person is
an associate of another person means that they are associates of each
other.
(3)
For the purposes of this Subdivision, a person is connected with a company if
that person is—
(a)
an associate of a director or shadow director of the company; or
(b)
an associate of the company.
(4)
For the purposes of this Subdivision, a company goes into liquidation
when—
(a)
the company passes a resolution for voluntary winding up;
(b)
a winding-up statement is delivered to the Registrar for registration under
section 228A for the company; or
(c)
(if the company has not gone into liquidation because of paragraph (a) or
(b)) the court makes a winding-up order in respect of the company.
(5)
(Repealed 19 of 2024 s. 24)
(Added 14 of 2016 s. 88)
265B.
Meaning of
associate
(1)
A person is an associate of another person if that person is—
(a)
a spouse or cohabitant of that other person;
(b)
a relative of that other person, or of that spouse or cohabitant; or
(c)
a spouse or cohabitant of that relative.
(2)
A person is an associate of another person if that person is in partnership with—
(a)
that other person; or
(b)
a spouse, cohabitant or relative of that other person.
(3)
A person in the capacity as trustee of a trust is an associate of another person if—
(a)
the beneficiaries of the trust include that other person or an associate of that other person; or
(b)
the terms of the trust confer a power that may be exercised for the benefit of that other person or an associate of that other person.
(4)
In this section—
(a)
a reference to a spouse includes a former spouse and a reputed spouse; and
(b)
a reference to a cohabitant includes a former cohabitant.
(5)
For the purposes of this section—
(a)
a person is a cohabitant of another person if that person and that other person (whether they are of the same sex or opposite sex) live together as a couple in an intimate relationship; and
(b)
a person is a relative of another person if that person is a brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant of that other person.
(6)
For the purposes of subsection (5)(b)—
(a)
a relationship of the half blood is treated as a relationship of the whole blood;
(b)
a stepchild or adopted child of a person is treated as that person’s child; and
(c)
a child born out of wedlock is treated as the legitimate child of that child’s mother and reputed father.
(Added 14 of 2016 s. 88)
265C.
Meaning of
associate
: further provisions(1)
A person is an associate of another person if that person—
(a)
employs that other person; or
(b)
is employed by that other person.
(2)
A person is an associate of a company if that person is a director, shadow director or other officer of the company.
(3)
A company is an associate of another company if—
(a)
the same person has control of both;
(b)
a person has control of one and—
(i)
persons who are associates of that person; or
(ii)
that person and persons who are associates of that person,
have control of the other; or
(c)
a group of 2 or more persons has control of each company, and both groups—
(i)
consist of the same persons; or
(ii)
would consist of the same persons if (in one or more cases) a member of either group were replaced by a person who is an associate of that member.
(4)
A company is an associate of another person if—
(a)
that person has control of the company; or
(b)
that person and persons who are associates of that person together have control of the company.
(5)
For the purposes of this section—
(a)
a person has control of a company if—
(i)
any or all of the directors of the company, or of another company which has control of it, are accustomed to act in accordance with that person’s directions or instructions; or
(ii)
that person is entitled to exercise, or control the exercise of, more than 30% of the voting power at any general meeting of the company or of another company which has control of it; and
(b)
if 2 or more persons together satisfy either subparagraph (i) or (ii) of paragraph (a), they have control of the company.
(6)
For the purposes of this section,
company
(公司
) includes a body corporate (whether incorporated in Hong Kong or elsewhere), and references to directors, shadow directors and other officers of a company and to voting power at any general meeting of a company have effect with any necessary modifications.(Added 14 of 2016 s. 88)
265D.
Transactions at an undervalue voidable in certain circumstances
(1)
This section applies in relation to a company if the company goes into liquidation.
(2)
If the company has at a relevant time (within the meaning of section 266B) entered into a transaction with a person at an undervalue, the liquidator may apply to the court for an order under subsection (3).
(3)
Subject to section 266C, on an application under subsection (2), the court may make an order that it thinks fit for restoring the position to what it would have been if the company had not entered into that transaction.
(4)
The court must not make an order under subsection (3) if it is satisfied that—
(a)
the company entered into the transaction in good faith and for the purpose of carrying on its business; and
(b)
at the time the company did so, there were reasonable grounds for believing that the transaction would benefit the company.
(Added 14 of 2016 s. 88)
265E.
Meaning of
transaction at an undervalue
A company enters into a transaction with a person at an undervalue if—
(a)
the company makes a gift to that person, or otherwise enters into a transaction with that person on terms that provide for the company to receive no consideration; or
(b)
the company enters into a transaction with that person for a consideration the value of which, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by the company.
(Added 14 of 2016 s. 88)
266.
Unfair preferences voidable in certain circumstances
(1)
This section applies in relation to a company if the company goes into liquidation.
(2)
If the company has at a relevant time (within the meaning of section 266B) given an unfair preference to a person, the liquidator may apply to the court for an order under subsection (3).
(3)
Subject to section 266C, on an application under subsection (2), the court may make an order that it thinks fit for restoring the position to what it would have been if the company had not given that unfair preference.
(4)
The court must not make an order under subsection (3) unless the company was influenced, in deciding to give that unfair preference, by a desire to produce in relation to that person the effect mentioned in section 266A(1)(b).
(5)
A company which has given an unfair preference to a person connected with the company (otherwise than by reason only of being its employee) at the time the unfair preference was given is presumed, unless the contrary is shown, to have been influenced, in deciding to give it, by the desire mentioned in subsection (4).
(Replaced 14 of 2016 s. 89)
266A.
Meaning of unfair preference
(1)
A company gives an unfair preference to a person if—
(a)
that person is—
(i)
one of the company’s creditors; or
(ii)
a surety or guarantor for any of the company’s debts or other liabilities; and
(b)
the company does anything or suffers anything to be done which has the effect of putting that person into a position which, in the event of the company going into insolvent liquidation, will be better than the position that person would have been in if that thing had not been done.
(2)
For the purposes of subsection (1)(b), a company goes into insolvent liquidation if it goes into liquidation at a time when its assets are insufficient for the payment of its debts and other liabilities and the expenses of the winding up.
(3)
The fact that something has been done pursuant to the order of any court does not, without more, prevent the doing or suffering of that thing from constituting the giving of an unfair preference.
(Replaced 14 of 2016 s. 89)
266B.
(1)
Subject to subsections (2) and (3), the time at which a company enters into a transaction at an undervalue or gives an unfair preference is a relevant time for the purposes of sections 265D(2) and 266(2) if the transaction is entered into, or the unfair preference given—
(a)
for a transaction at an undervalue—at a time in the period of 5 years ending with the day on which the winding up of the company commences;
(b)
for an unfair preference which is not a transaction at an undervalue and is given to a person who is connected with the company (otherwise than by reason only of being its employee)—at a time in the period of 2 years ending with the day on which the winding up of the company commences; and
(c)
in any other case of an unfair preference which is not a transaction at an undervalue—at a time in the period of 6 months ending with the day on which the winding up of the company commences.
Note—
1.
For the time at which a winding up by the court commences, see section 184.
2.
For the time at which a voluntary winding up commences, see sections 209B(a)(i), 228A(5)(a) and 230.
(2)
The time mentioned in subsection (1)(a), (b) or (c) is not a relevant time for the purposes of sections 265D(2) and 266(2) unless either of the following conditions is satisfied—
(a)
the company is unable to pay its debts (within the meaning of section 178) at that time;
(b)
the company becomes unable to pay its debts (within the meaning of section 178) in consequence of the transaction or unfair preference.
(3)
The conditions under subsection (2)(a) and (b) are presumed to be satisfied, unless the contrary is shown, in relation to a transaction at an undervalue which is entered into by a company with a person connected with the company (otherwise than by reason only of being its employee).
(Replaced 14 of 2016 s. 89)
266C.
Orders under sections 265D and 266
(1)
Without limiting sections 265D(3) and 266(3), an order under either of those sections with respect to a transaction at an undervalue entered into by a company, or an unfair preference given by a company, may do one or more of the following—
(a)
require any property transferred as part of the transaction, or in connection with the giving of the unfair preference, to be vested in the company;
(b)
require any property to be vested in the company if it represents in any person’s hands the application of—
(i)
the proceeds of sale of property so transferred; or
(ii)
money so transferred;
(c)
release or discharge (in whole or in part) any security given by the company;
(d)
require a person to pay, in respect of benefits received by that person from the company, any sums to the liquidator that the court may direct;
(e)
provide for a surety or guarantor whose obligations to a person were released or discharged (in whole or in part) under the transaction, or by the giving of the unfair preference, to be under any new or revived obligations to that person as the court thinks appropriate;
(f)
provide—
(i)
for security to be provided for the discharge of any obligation imposed by or arising under the order;
(ii)
for such an obligation to be charged on any property; and
(iii)
for the security or charge to have the same priority as a security or charge released or discharged (in whole or in part) under the transaction or by the giving of the unfair preference;
(g)
provide for the extent to which a person—
(i)
whose property is vested by the order in the company; or
(ii)
on whom obligations are imposed by the order,
is to be able to prove in the winding up of the company for debts or other liabilities which arose from, or were released or discharged (in whole or in part) under the transaction or by the giving of the unfair preference.
(2)
An order under section 265D(3) or 266(3) may affect the property of, or impose an obligation on, any person whether or not that person is the person with whom the company entered into the transaction or, as the case may be, the person to whom the unfair preference was given.
(3)
Despite subsection (2)—
(a)
the order must not prejudice—
(i)
any interest in property which was acquired from a person other than the company and was acquired in good faith and for value; or
(ii)
any interest deriving from such an interest; and
(b)
the order must not require a person who received a benefit from the transaction or unfair preference in good faith and for value to pay a sum to the liquidator, except where that person was a party to the transaction or the payment is to be in respect of an unfair preference given to that person at a time when that person was a creditor of the company.
(4)
If a person (third party) has acquired an interest in property from a person other than the company, or has received a benefit from the transaction or unfair preference, then unless the contrary is shown, it is presumed for the purposes of subsection (3)(a) and (b) that the interest was acquired or the benefit was received otherwise than in good faith if, at the time of the acquisition or receipt—
(a)
the third party had notice of—
(i)
the relevant circumstances; and
(ii)
the relevant proceedings; or
(b)
the third party—
(i)
was connected with the company; or
(ii)
was connected with, or was an associate of, the person with whom the company entered into the transaction or to whom the company gave the unfair preference.
(5)
For the purposes of subsection (4)(a)(i), the relevant circumstances are—
(a)
for a transaction at an undervalue—the fact that the company entered into the transaction at an undervalue; or
(b)
for an unfair preference—the circumstances which amounted to the giving of the unfair preference by the company.
(6)
For the purposes of subsection (4)(a)(ii), a third party had notice of the relevant proceedings if—
(a)
in the case of the company going into liquidation on the making of a winding-up order on a petition—that party had notice of the fact that—
(i)
the petition had been presented; or
(ii)
the company had gone into liquidation;
(b)
in the case of the company going into liquidation on the delivery of a winding-up statement to the Registrar under section 228A—that party had notice of the fact that—
(i)
a resolution had been passed under section 228A(1)(a) in respect of the company; or
(ii)
the company had gone into liquidation; or
(c)
in any other case—that party had notice of the fact that the company had gone into liquidation.
(Added 14 of 2016 s. 90)
266D.
Application of sections 265D to 266C
Sections 265D, 265E, 266, 266A, 266B and 266C apply without limiting the availability of any other remedy, even in relation to a transaction which the company had no power to enter into, or an unfair preference which the company had no power to give.
(Added 14 of 2016 s. 90)
267.
Effect of floating charge
(1)
This section applies in relation to a company if the company goes into liquidation.
(2)
If the company creates a floating charge on its undertaking or property at a relevant time (within the meaning of section 267A), the charge is invalid except to the extent of the amount specified in subsection (3).
(3)
The amount is the aggregate of—
(a)
the value of so much of the consideration for the creation of the charge that consists of—
(i)
money paid to the company at the same time as, or after, the creation of the charge;
(ii)
money paid at the direction of the company at the same time as, or after, the creation of the charge; or
(iii)
property or services supplied to the company at the same time as, or after, the creation of the charge; and
(b)
the amount of any interest that is payable on the amount mentioned in paragraph (a)(i), (ii) or (iii) pursuant to the charge or consideration agreement, at—
(i)
the rate specified in the charge or consideration agreement; or
(ii)
the rate of 12% per annum,
whichever is the lesser.
(4)
For the purposes of subsection (3)(a)(iii), the value of any property or services supplied as consideration for a floating charge is the amount in money which, at the time they were supplied, could reasonably have been expected to be obtained—
(a)
for supplying the property or services in the ordinary course of business; and
(b)
on the same terms (apart from the consideration) as those on which they were supplied to the company.
(5)
In this section—
consideration agreement
(代價協議
)—(a)
in relation to the value mentioned in subsection (3)(a)(i), means the agreement pursuant to which the money was paid to the company;
(b)
in relation to the value mentioned in subsection (3)(a)(ii), means the agreement pursuant to which the money was paid at the direction of the company; or
(c)
in relation to the value mentioned in subsection (3)(a)(iii), means the agreement pursuant to which the property or services were supplied to the company;
floating charge
(浮動押記
) means a charge which, when created, was a floating charge.(Replaced 14 of 2016 s. 91)
267A.
Relevant time
under section 267(1)
For a floating charge created in favour of a person who is connected with the company, the time at which the charge is created is a relevant time for the purposes of section 267(2) if it is created at a time in the period of 2 years ending with the day on which the winding up of the company commences.
(2)
For a floating charge created in favour of any person other than a person connected with the company, the time at which the charge is created is a relevant time for the purposes of section 267(2) if—
(a)
it is created at a time in the period of 12 months ending with the day on which the winding up of the company commences; and
(b)
the company—
(i)
is unable to pay its debts (within the meaning of section 178) at that time; or
(ii)
becomes unable to pay its debts (within the meaning of section 178) in consequence of the transaction under which the charge is created.
Note—
1.
For the time at which a winding up by the court commences, see section 184.
2.
For the time at which a voluntary winding up commences, see sections 209B(a)(i), 228A(5)(a) and 230.
(Added 14 of 2016 s. 92)
268.
Disclaimer of onerous property in case of company wound up
(1)
Where any part of the property of a company which is being wound up consists of land of any tenure burdened with onerous covenants, of shares or stock in companies, of unprofitable contracts, or of any other property that is unsaleable, or not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act, or to the payment of any sum of money, the liquidator of the company, notwithstanding that he has endeavoured to sell or has taken possession of the property, or exercised any act of ownership in relation thereto, may, with the leave of the court and subject to the provisions of this section, by writing signed by him, at any time within 12 months after the commencement of the winding up or such extended period as may be allowed by the court, disclaim the property:
Provided that, where any such property has not come to the knowledge of the liquidator within 1 month after the commencement of the winding up, the power under this section of disclaiming the property may be exercised at any time within 12 months after he has become aware thereof or such extended period as may be allowed by the court.
(2)
The disclaimer shall operate to determine, as from the date of disclaimer, the rights, interest, and liabilities of the company, and the property of the company, in or in respect of the property disclaimed, but shall not, except so far as is necessary for the purpose of releasing the company and the property of the company from liability, affect the rights or liabilities of any other person.
(3)
The court, before or on granting leave to disclaim, may require such notices to be given to persons interested, and impose such terms as a condition of granting leave, and make such other order in the matter as the court thinks just.
(4)
The liquidator shall not be entitled to disclaim any property under this section in any case where an application in writing has been made to him by any persons interested in the property requiring him to decide whether he will or will not disclaim, and the liquidator has not, within a period of 28 days after the receipt of the application or such further period as may be allowed by the court, given notice to the applicant that he intends to apply to the court for leave to disclaim, and, in the case of a contract, if the liquidator, after such an application as aforesaid, does not within the said period or further period disclaim the contract, the company shall be deemed to have adopted it.
(5)
The court may, on the application of any person who is, as against the liquidator, entitled to the benefit or subject to the burden of a contract made with the company, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non-performance of the contract, or otherwise as the court thinks just, and any damages payable under the order to any such person may be proved by him as a debt in the winding up.
(6)
The court may, on an application by any person who either claims any interest in any disclaimed property or is under any liability not discharged by this Ordinance in respect of any disclaimed property and on hearing any such persons as it thinks fit, make an order for the vesting of the property in or the delivery of the property to any persons entitled thereto, or to whom it may seem just that the property should be delivered by way of compensation for such liability as aforesaid, or a trustee for him, and on such terms as the court thinks just, and on any such vesting order being made, the property comprised therein shall vest accordingly in the person therein named in that behalf without any conveyance or assignment for the purpose:
Provided that, where the property disclaimed is of a leasehold nature, the court shall not make a vesting order in favour of any person claiming under the company, whether as under-lessee or as a person entitled to a mortgage or charge, except upon the terms of making that person—
(a)
subject to the same liabilities and obligations as those to which the company was subject under the lease in respect of the property at the commencement of the winding up; or
(b)
if the court thinks fit, subject only to the same liabilities and obligations as if the lease had been assigned to that person at that date,
and in either event (if the case so requires) as if the lease had comprised only the property comprised in the vesting order, and any under-lessee or person entitled to a mortgage or charge who declines to accept a vesting order upon such terms shall be excluded from all interest in and security upon the property, and, if there is no person claiming under the company who is willing to accept an order upon such terms, the court shall have power to vest the estate and interest of the company in the property in any person liable either personally or in a representative character, and either alone or jointly with the company to perform the lessee’s covenants in the lease, freed and discharged from all estates, incumbrances and interests created therein by the company.
(Amended 6 of 1984 s. 184)
(7)
Any person injured by the operation of a disclaimer under this section shall be deemed to be a creditor of the company to the amount of the injury, and may accordingly prove the amount as a debt in the winding up.
[cf. 1929 c. 23 s. 267 U.K.]
269.
Restriction of rights of creditor as to execution or attachment in case of company being wound up
(1)
Where a creditor has issued execution against the goods or lands of a company or has attached any debt due to the company, and the company is subsequently wound up, he shall not be entitled to retain the benefit of the execution or attachment against the liquidator in the winding up of the company unless he has completed the execution or attachment before the commencement of the winding up:
Provided that—
(a)
where any creditor has had notice of a meeting having been called at which a resolution for voluntary winding up is to be proposed, the date on which the creditor so had notice shall for the purposes of the foregoing provision be substituted for the date of the commencement of the winding up; and
(b)
a person who purchases in good faith under a sale by the bailiff any goods of a company on which an execution has been levied shall in all cases acquire a good title to them against the liquidator; and
(Amended 6 of 1984 s. 185)
(c)
the rights conferred by this subsection on the liquidator may be set aside by the court in favour of the creditor to such extent and subject to such terms as the court may think fit.
(Added 6 of 1984 s. 185)
(2)
For the purposes of this Ordinance—
(a)
an execution against goods is completed by seizure and sale or by the making of a charging order under section 20 of the High Court Ordinance (Cap. 4);
(Amended 25 of 1998 s. 2)
(b)
an attachment of a debt is completed by the receipt of the debt; and
(c)
an execution against land is completed by seizure, by the appointment of a receiver, or by the making of a charging order under the said section 20.
(Replaced 52 of 1987 s. 44)
(3)
In this section,
goods
(貨品
) includes all chattels personal, and bailiff
(執達主任
) includes any officer charged with the execution of a writ or other process.[cf. 1929 c. 23 s. 268 U.K.]
270.
Duties of bailiff as to goods taken in execution
(1)
Subject to subsection (2A), where any goods of a company are taken in execution, and, before the sale thereof or the completion of the execution by the receipt or recovery of the full amount of the levy, notice is served on the bailiff that a provisional liquidator has been appointed or that a winding-up order has been made or that a resolution for voluntary winding up has been passed, the bailiff shall, on being so required, deliver the goods and any money seized or received in part satisfaction of the execution to the liquidator, but the costs of the execution shall be a first charge on the goods or money so delivered, and the liquidator may sell the goods, or a sufficient part thereof, for the purpose of satisfying that charge.
(2)
Subject to subsection (2A), where under an execution the goods of a company are sold or money is paid in order to avoid sale, the bailiff shall deduct the costs of the execution from the proceeds of the sale or the money paid and retain the balance for 14 days, and if within that time notice is served on him of a petition for the winding up of the company having been presented or of a meeting having been called at which there is to be proposed a resolution for the voluntary winding up of the company and an order is made or a resolution is passed, as the case may be, for the winding up of the company, the bailiff shall pay the balance to the liquidator, who shall be entitled to retain it as against the execution creditor.
(2A)
The rights conferred by this section on the liquidator may be set aside by the
court in favour of the creditor to such extent and subject to such terms as the
court thinks fit. (Added 6 1984 s.
186)
(3)
In this section,
goods
(貨品
) includes all chattels personal, and bailiff
(執達主任
) includes any officer charged with the execution of a writ or other process.(Amended 6 of 1984 s. 186)
[cf. 1929 c. 23 s. 269 U.K.]
271.
Offences by officers of companies in liquidation
(1)
If any person, being a past or present officer of a company which is at the time of the commission of the alleged offence being wound up, whether by the court or voluntarily, or which, subsequently to that time, is ordered to be wound up by the court or passes a resolution for voluntary winding up—
(a)
does not to the best of his knowledge and belief fully and truly discover to the liquidator all the property, real and personal, of the company, and how and to whom and for what consideration and when the company disposed of any part thereof, except such part as has been disposed of in the ordinary way of the business of the company; or
(b)
does not deliver up to the liquidator, or as he directs, all such part of the real and personal property of the company as is in his custody or under his control, and which he is required by law to deliver up; or
(c)
does not deliver up to the liquidator, or as he directs, all books and papers in his custody or under his control belonging to the company and which he is required by law to deliver up; or
(d)
within 12 months next before the commencement of the winding up or at any time thereafter conceals any part of the property of the company to the value of $100 or upwards, or conceals any debt due to or from the company; or
(e)
within 12 months next before the commencement of the winding up or at any time thereafter fraudulently removes any part of the property of the company to the value of $100 or upwards; or
(f)
makes any material omission in any statement relating to the affairs of the company; or
(g)
knowing or believing that a false debt has been proved by any person under the winding up, fails for the period of a month to inform the liquidator thereof; or
(h)
after the commencement of the winding up prevents the production of any book or paper affecting or relating to the property or affairs of the company; or
(i)
within 12 months next before the commencement of the winding up or at any time thereafter, conceals, destroys, mutilates, or falsifies, or is privy to the concealment, destruction, mutilation, or falsification of, any book or paper affecting or relating to the property or affairs of the company; or
(j)
within 12 months next before the commencement of the winding up or at any time thereafter makes or is privy to the making of any false entry in any book or paper affecting or relating to the property or affairs of the company; or
(k)
within 12 months next before the commencement of the winding up or at any time thereafter fraudulently parts with, alters, or makes any omission in, or is privy to the fraudulent parting with, altering, or making any omission in, any document affecting or relating to the property or affairs of the company; or
(l)
after the commencement of the winding up or at any meeting of the creditors of the company within 12 months next before the commencement of the winding up attempts to account for any part of the property of the company by fictitious losses or expenses; or
(m)-(n)
(Repealed 21 of 1970 s. 35)
(o)
within 12 months next before the commencement of the winding up or at any time thereafter pawns, pledges, or disposes of any property of the company which has been obtained on credit and has not been paid for, unless such pawning, pledging, or disposing is in the ordinary way of the business of the company; or
(p)
is guilty of any false representation or other fraud for the purpose of obtaining the consent of the creditors of the company or any of them to an agreement with reference to the affairs of the company or to the winding up,
he shall, in the case of the offence mentioned in paragraph (o), be liable to imprisonment, and in the case of any other offence shall be liable to imprisonment and a fine:
(Amended 7 of 1990 s. 2)
Provided that it shall be a good defence to a charge under any of paragraphs (a), (b), (c), (d), (f) and (o), if the accused proves that he had no intent to defraud, and to a charge under any of paragraphs (h), (i) and (j), if he proves that he had no intent to conceal the state of affairs of the company or to defeat the law.
(Amended 21 of 1970 s. 35)
(2)
Where any person pawns, pledges or disposes of any property in circumstances which amount to an offence under subsection (1)(o), any person who takes in pawn or pledge or otherwise receives the property knowing it to be pawned, pledged, or disposed of in such circumstances as aforesaid shall be guilty of an offence, and on conviction thereof liable to be punished in the same way as if he had received the property knowing it to have been obtained in circumstances amounting to an offence.
(3)
For the purposes of this section,
officer
(高級人員
) includes a shadow director.
(Amended 28 of 2003 s. 91)
(Amended 6 of 1984 s. 187)
[cf. 1929 c. 23 s. 271 U.K.]
272.
Penalty for falsification of books
If any person, being a past or present officer or a contributory of any company being wound up, before or after the commencement of the winding up destroys, mutilates, alters or falsifies any books, papers or securities, or makes or is privy to the making of any false or fraudulent entry in any register, book of account or document belonging to the company with intent to defraud or deceive any person, he shall be guilty of an offence and liable to imprisonment and a fine.
(Replaced 6 of 1984 s. 188. Amended 7 of 1990 s. 2)
[cf. 1948 c. 38 s. 329 U.K.]
273.
Frauds by officers of companies which have gone into liquidation
If any person, being at the time of the commission of the alleged offence an officer of a company which is subsequently ordered to be wound up by the court or subsequently passes a resolution for voluntary winding up—
(a)
(Repealed 21 of 1970 s. 35)
(b)
with intent to defraud creditors of the company, has made or caused to be made any gift or transfer of or charge on, or has caused or connived at the levying of any execution against, the property of the company;
(c)
with intent to defraud creditors of the company, has concealed or removed any part of the property of the company since, or within 2 months before, the date of any unsatisfied judgment or order for payment of money obtained against the company,
he shall be guilty of an offence and liable to imprisonment and a fine.
[cf. 1929 c. 23 s. 273 U.K.]
274.
Liability where proper
records
not kept
(Amended 14 of 2016 s. 94)
(1)
If where a company is wound up it is shown that
the
company has not kept accounting records that comply with section 373(2)
and (3) of the Companies Ordinance (Cap. 622) for any
part of the shorter of the period of 2 years immediately preceding
the commencement of the winding up, or the period between the
specified
date and the commencement of the winding up,
every
officer of the company who is in default
is,
unless the officer shows that the officer acted honestly and that
in the circumstances in which the business of the company was carried on the default
was excusable,
guilty
of an offence and liable to imprisonment and a fine.
(2)
(Repealed 14 of 2016 s. 94)
(3)
In this section—
specified date
(指明日期
)—(a)
in relation to a company that is not a re-domiciled company—means its
date of incorporation; and
(b)
in relation to a re-domiciled company—means its re-domiciliation date.
(Added 14 of 2025 s. 107)
[cf. 1929 c. 23 s. 274 U.K.]
275.
Responsibility of directors for fraudulent trading
(1)
If in the course of the winding up of a company it appears that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose, the court, on the application of the Official Receiver, or the liquidator or any creditor or contributory of the company, may, if it thinks proper so to do, declare that any persons who were knowingly parties to the carrying on of the business in manner aforesaid shall be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company as the court may direct.
(1A)
On the hearing of an application under subsection (1) the Official Receiver or the liquidator, as the case may be, may himself give evidence or call witnesses.
(Added 6 of 1984 s. 191)
(2)
Where the court makes any such declaration, it may give such further directions as
it thinks proper for the purpose of giving effect to that declaration, and in
particular may make provision for making the liability of any person under the
declaration a charge on any debt or obligation due from the company to him, or on
any mortgage or charge or any interest in any mortgage or charge on any assets of
the company held by or vested in him, or any company or person on his behalf, or any
person claiming as assignee from or through the person liable or any such company or
person, and may from time to time make such further order as may be necessary for
the purpose of enforcing any charge imposed under this subsection.
For the purpose of this subsection,
assignee
(承讓人
) includes any
person to whom or in whose favour, by the directions of the person liable under the
declaration, the debt, obligation, mortgage or charge was created, issued or
transferred or the interest created, but does not include an assignee for valuable
consideration (not including consideration by way of marriage) given in good faith
and without notice of any of the matters on the ground of which the declaration is
made.(3)
Where any business of a company is carried on with such intent or for such purpose as is mentioned in subsection (1), every person who was knowingly a party to the carrying on of the business in manner aforesaid shall, whether or not the company has been or is in course of being wound up, be guilty of an offence and liable to imprisonment and a fine.
(Replaced 6 of 1984 s. 191. Amended 7 of 1990 s. 2)
(4)-(5)
(Repealed 6 of 1984 s. 191)
(6)
The provisions of this section shall have effect notwithstanding that the person concerned may be criminally liable in respect of the matters on the ground of which the declaration is to be made.
(Amended 76 of 1996 s. 77)
(7)
(Repealed 6 of 1984 s. 191)
(Amended 6 of 1984 s. 191)
[cf. 1929 c. 23 s. 275 U.K.]
276.
Power of court to assess damages against delinquent officer, etc.
(1)
If in the course of winding up a company it appears that any of the persons specified in subsection (1A) has misapplied or retained or become liable or accountable for any money or property of the company, or been guilty of any misfeasance, breach of duty or breach of trust in relation to the company which is actionable at the suit of the company, the court may, on the application of the Official Receiver, or of the
liquidator, or of any creditor or contributory, examine into the conduct of the person, and compel the person to repay or restore the money or property or any part thereof respectively with interest at such rate as the court thinks just, or to contribute such sum to the assets of the company by way of compensation in respect of the misapplication, retainer, misfeasance, breach of duty or breach of trust as the court thinks just.
(Amended 14 of 2016 s. 95)
(1A)
The following persons are specified for subsection (1)—
(a)
a person who is or has been an officer of the company;
(b)
a person who is or has acted as a provisional liquidator or liquidator of the company;
(c)
a person who is or has acted as a receiver or manager of the property of the company;
(d)
a person, other than a person falling within paragraph (a), (b) or (c), who is or has been concerned, or is taking or has taken part, in the promotion, formation or management of the company.
(Added 14 of 2016 s. 95)
(1B)
If the person has acted as a liquidator of the company and has been released under section 205, the right of the Official Receiver, or of the liquidator, or of any creditor or contributory to make an application under subsection (1) in respect of the person is only exercisable with the leave of the court.
(Added 14 of 2016 s. 95)
(2)
The provisions of this section shall have effect notwithstanding that the offence is one for which the offender may be criminally liable.
(3)
(Repealed 76 of 1996 s. 78)
(Amended 6 of 1984 s. 192)
[cf. 1929 c. 23 s. 276 U.K.]
277.
Prosecution of delinquent officers and members of company
(1)
If it appears to the court in the course of a winding up by the court that any past or present officer or member of the company has been guilty of any offence in relation to the company for which he is criminally liable, the court may, either on the application of any person interested in the winding up or of its own motion, direct the liquidator to refer the matter to the Secretary for Justice.
(Amended 6 of 1984 s. 193)
(2)
If it appears to the liquidator in the course of a voluntary winding up that any past or present officer or member of the company has been guilty of any offence in relation to the company for which he is criminally liable, he shall forthwith report the matter to the Secretary for Justice, and shall furnish to the Secretary for Justice such information and give to him such access to and facilities for inspecting and taking copies of any documents, being information or documents in the possession or under the control of the liquidator and relating to the matter in question, as he may require.
(Amended 6 of 1984 s. 193)
(3)
If it appears to the court in the course of a voluntary winding up that any past or present officer or member of the company has been guilty as aforesaid, and that no report with respect to the matter has been made by the liquidator to the Secretary for Justice under subsection (2), the court may, on the application of any person interested in the winding up or of its own motion, direct the liquidator to make such a report, and on a report being made accordingly the provisions of this section shall have effect as though the report had been made in pursuance of the provisions of subsection (2).
(Amended 6 of 1984 s. 193)
(4)
If, where any matter is reported or referred to the Secretary for Justice under
this section, he considers that the case is one in which a prosecution ought to be
instituted, he shall institute proceedings accordingly, and it shall be the duty of
the liquidator and of every officer and agent of the company past and present (other
than the defendant in the proceedings) to give him all assistance in connexion with
the prosecution which he is reasonably able to give.
For the purposes of this subsection, the expression
agent
(代理人
) in relation to a
company shall be deemed to include any banker or solicitor of the company and any
person employed by the company as auditor, whether that person is or is not an
officer of the company.(5)
If any person fails or neglects to give assistance in manner required by subsection (4), the court may, on the application of the Secretary for Justice, direct that person to comply with the requirements of the said subsection, and where any such application is made with respect to a liquidator the court may, unless it appears that the failure or neglect to comply was due to the liquidator not having in his hands sufficient assets of the company to enable him so to do, direct that costs of the application shall be borne by the liquidator personally.
(Replaced 78 of 1972 s. 17. Amended L.N. 362 of 1997)
[cf. 1948 c. 38 s. 334 U.K.]
278.
(Repealed 14 of 2016 s. 97)
278A.
Inducement affecting appointment etc. as provisional liquidator or
liquidator
(1)
A person who gives, or agrees or offers to give, to any other person valuable
consideration with a view to—
(a)
securing his or her own appointment or nomination as the provisional
liquidator or liquidator of a company; or
(b)
securing or preventing the appointment or nomination of some person other
than himself or herself as the provisional liquidator or liquidator of a
company,
commits an offence and is liable on conviction to a fine.
(2)
Subsection (1) does not apply—
(a)
if—
(i)
the person who gives, or agrees or offers to give, the valuable
consideration is a practice unit;
(ii)
the person who is given, or agreed or offered to be given, the valuable
consideration is an employee of the practice unit; and
(iii)
under an arrangement between the practice unit and the employee, the
employee’s remuneration is based in whole or in part on introductions
obtained for the practice unit through the employee’s efforts; or
(b)
if the appointment or nomination of a person as the provisional liquidator
or liquidator of a company is the result of—
(i)
a transfer or sale of the business, or a part of the business, of a
practice unit; or
(ii)
a change in composition of a practice unit within the meaning of
section
20ZZF(6)
of the Accounting and Financial Reporting Council Ordinance (Cap. 588).
(Amended L.N. 66 of 2022)
(3)
In this section—
practice unit
(執業單位
) has
the meaning given by section 2(1) of the
Accounting
and Financial Reporting Council Ordinance (Cap. 588).
(Amended L.N. 66 of 2022)
(Replaced 14 of 2016 s. 98)
279.
Enforcement of duty of liquidator to make returns, &c.
(1)
If any liquidator, who has made any default in filing, delivering or making any return, account or other document, or in giving any notice which he is by law required to file, deliver, make or give, fails to make good the default within 14 days after the service on him of a notice requiring him to do so, the court may, on an application made to the court by any contributory or creditor of the company or by the Registrar, make an order directing the liquidator to make good the default within such time as may be specified in the order.
(2)
Any such order may provide that all costs of and incidental to the application shall be borne by the liquidator.
(3)
Nothing in this section shall be taken to prejudice the operation of any enactment imposing penalties on a liquidator in respect of any such default as aforesaid.
[cf. 1929 c. 23 s. 279 U.K.]
280.
Notification that a company is in liquidation
(1)
Where a company is being wound up, whether by the court or voluntarily, every invoice, order for goods or business letter issued by or on behalf of the company or a liquidator of the company, or a receiver or manager of the property of the company, being a document on or in which the name of the company appears, shall contain a statement that the company is being wound up.
(Amended 6 of 1984 s. 196)
(2)
If default is made in complying with this section, the company and any of the following persons who knowingly and wilfully authorizes or permits the default, namely, any officer of the company, any liquidator of the company and any receiver or manager, shall be liable to a fine.
(Replaced 6 of 1984 s. 196. Amended 7 of 1990 s. 2)
[cf. 1929 c. 23 s. 280 U.K.]
281.
Exemption of certain documents from stamp duty on winding up of companies
(1)
In the case of a winding up by the court or a creditors’ voluntary winding up of a company, stamp duty shall not be payable in respect of—
(Amended 6 of 1984 s. 197)
(a)
any assurance relating solely to immovable property or personal property which forms part of the assets of the company and which, after the execution of the assurance, either at law or in equity, is or remains part of the assets of the company; or
(b)
any other instrument relating solely to the property of any company which is being so wound up.
(Replaced 31 of 1981 s. 65)
(2)
In this section,
assurance
(轉易書
) includes deed, conveyance, assignment and surrender.[cf. 1929 c. 23 s. 281 U.K.]
282.
Books of company to be evidence
Where a company is being wound up, all books and papers of the company and of the liquidators shall, as between the contributories of the company, be prima facie evidence of the truth of all matters purporting to be therein recorded.
[cf. 1929 c. 23 s. 282 U.K.]
283.
Disposal of books and papers of company
(1)
When a company has been wound up and is about to be dissolved, the books and papers of the company and of the liquidators may be disposed of as follows, that is to say—
(a)
in the case of a winding up by the court in such way as the court directs;
(b)
in the case of a members’ voluntary winding up, in such way as the company by special resolution directs, and, in the case of a creditors’ voluntary winding up, in such way as the committee of inspection or, if there is no such committee, as the creditors of the company, may direct.
(Amended 6 of 1984 s. 198)
(2)
After 5 years from the dissolution of the company no responsibility shall rest on the company, the liquidators, or any person to whom the custody of the books and papers has been committed, by reason of any book or paper not being forthcoming to any person claiming to be interested therein.
(3)
Provision may be made by general rules for enabling the Official Receiver to prevent, for such period (not exceeding 5 years from the dissolution of the company) as he thinks proper, the destruction of the books and papers of a company which has been wound up, and for enabling any creditor or contributory of the company to make representations to him, and to appeal to the court from any direction which may be given by him in the matter.
(4)
If any person acts in contravention of any general rules made for the purposes of this section or of any direction of the Official Receiver thereunder, he shall be liable to a fine.
[cf. 1929 c. 23 s. 283 U.K.]
284.
Information as to pending liquidations
(1)
If where a company is being wound up the winding up is not concluded within 1 year after its commencement, the liquidator shall, at such intervals as may be prescribed, until the winding up is concluded, send to the Registrar a statement in the prescribed form and containing the prescribed particulars with respect to the proceedings in and position of the liquidation.
(2)
Any person stating himself in writing to be a creditor or contributory of the company shall be entitled, by himself or by his agent, at all reasonable times, on payment of the prescribed fee, to inspect the statement, and to receive a copy thereof or extract therefrom.
(3)
If a liquidator fails to comply with this section, he shall be liable to a fine and, for continued default, to a daily default fine, and any person untruthfully stating himself as aforesaid to be a creditor or contributory shall be guilty of a contempt of court, and shall, on the application of the liquidator or of the Official Receiver, be punishable accordingly.
(Amended 7 of 1990 s. 2)
[cf. 1929 c. 23 s. 284 U.K.]
285.
Unclaimed assets to be paid to companies liquidation account
(1)
If it appears either from any statement sent to the Registrar under section 284 or otherwise that a liquidator has in his hands or under his control any money representing unclaimed or undistributed assets of the company which have remained unclaimed or undistributed for 6 months after the date of their receipt, or any money held by the company in trust in respect of dividends or other sums due to any person as a member of the company, the liquidator shall forthwith pay the said money to the companies liquidation account, and shall be entitled to the prescribed certificate of receipt for the money so paid, and that certificate shall be an effectual discharge to him in respect thereof.
(2)
(Repealed 6 of 1984 s. 199)
(3)
Any person claiming to be entitled to any money paid in pursuance of this section may, within 5 years of the date when the money was so paid, apply to the Official Receiver for payment thereof, and the Official Receiver may, on a certificate by the liquidator that the person claiming is entitled, make an order for the payment to that person of the sum due.
(Amended 71 of 1971 s. 3)
(4)
Any person dissatisfied with the decision of the Official Receiver in respect of a claim made in pursuance of this section may appeal to the court.
(5)
Any money paid in pursuance of this section which remains unclaimed for a period of 5 years shall be transferred to the general revenue of Hong Kong.
(Added 71 of 1971 s. 3. Amended 6 of 1984 s. 259)
(Amended 6 of 1984 s. 199)
[cf. 1929 c. 23 s. 285 U.K.]
285A.
Representation of corporation at meetings of creditors
(1)
A corporation that is a creditor (including a holder of debentures) of a company may, by resolution of its directors or other governing body, authorize any person that the corporation thinks fit to act as its representative at any meeting of any creditors of the company held under—
(a)
this Ordinance; or
(b)
any rules made under this Ordinance.
(2)
A person authorized under subsection (1) is entitled to exercise the same powers on behalf of the corporation as the corporation could exercise if it were an individual creditor of the company.
(Added 14 of 2016 s. 99)
286.
Resolutions passed at adjourned meetings of creditors and contributories
Where a resolution is passed at an adjourned meeting of any creditors or
contributories of a company, the resolution shall, for all purposes, be treated as
having been passed on the date on which it was in fact passed, and shall not be deemed
to have been passed on any earlier date.
(Amended 6 of 1984 s. 200)
[cf. 1929 c. 23 s. 287 U.K.]
286A.
Power to order public examination of promoters, directors, etc.
(1)
If an order has been made for the winding up of a company by the court, the court may—
(a)
after consideration of a further report made under section 191(2); or
(b)
on the application of the Official Receiver or the liquidator of the company,
direct by order any of the persons specified in subsection (2) to attend before the court, on a day appointed by the court, and be publicly examined as to any of the matters specified in subsection (3).
(2)
The persons who may be subject to an order under subsection (1) are—
(a)
a person who is or has been an officer of the company;
(b)
a person who is or has acted as a provisional liquidator or liquidator of the company;
(c)
a person who is or has acted as a receiver or manager of the property of the company; and
(d)
a person, other than a person falling within paragraph (a), (b) or (c), who is or has been concerned, or is taking or has taken part, in the promotion, formation or management of the company.
(3)
The matters specified for subsection (1) are—
(a)
the promotion, formation or management of the company;
(b)
the conduct of the business and affairs of the company; and
(c)
the conduct or dealings of the person examined in relation to the company.
(4)
The Official Receiver or liquidator who made the further report under section 191(2) or application under subsection (1)(b)—
(a)
must take part in the examination; and
(b)
for that purpose may, if specially authorized by the court in that behalf, employ a solicitor with or without counsel.
(5)
The following persons may also take part in the examination either personally or by solicitor with or without counsel—
(a)
the Official Receiver or liquidator, if not being the person who made the further report or application; and
(b)
any creditor or contributory of the company.
(6)
The court may put to the person examined any questions that it thinks fit.
(7)
The person examined is to be examined on oath, and must answer all questions that the court may put or allow to be put to the person.
(8)
The person examined may at the person’s own cost employ a solicitor with or without counsel, who may—
(a)
put to the person any questions that the court thinks just for the purpose of enabling the person to explain or qualify any answers given by the person; and
(b)
make representations on the person’s behalf.
(9)
Notes of the examination must be taken down in writing, and the notes must be read over to or by, and signed by, the person examined.
(10)
The notes of the examination taken down under subsection (9)—
(a)
may be used in evidence against the person examined; and
(b)
must be open to inspection by any creditor or contributory of the company at all reasonable times.
(11)
The court may, if it thinks fit, adjourn the examination from time to time.
(Added 14 of 2016 s. 101)
286B.
Powers to order examination of persons concerned with company’s property, etc. and provision of information, etc.
(1)
At any time after the occurrence of an event specified in subsection (3) in respect of a company, the court may require by order any of the persons specified in subsection (4) to do one or more of the following—
(a)
attend before the court;
(b)
be examined under section 286C;
(c)
submit to the court an affidavit containing either or both of the following—
(i)
an account of the person’s dealings with the company;
(ii)
information concerning the promotion, formation, trade, dealings, affairs or property of the company;
(d)
produce any books and papers in the person’s custody or power relating to the company or the promotion, formation, trade, dealings, affairs or property of the company.
(2)
The court may make an order under subsection (1) of its own motion or on the application of—
(a)
the provisional liquidator or liquidator of the company; or
(b)
in the case of a winding up by the court where a winding up order has been made, the Official Receiver as well.
(3)
An event specified for subsection (1) is—
(a)
the appointment of a provisional liquidator;
(b)
the making of a winding-up order; or
(c)
the commencement of voluntary winding up.
(4)
The persons who may be subject to an order under subsection (1) are—
(a)
an officer of the company;
(b)
a person known or suspected to have in the person’s possession any property of the company;
(c)
a person supposed to be indebted to the company; and
(d)
a person whom the court thinks capable of giving information concerning the promotion, formation, trade, dealings, affairs or property of the company.
(5)
If a person is required to attend before the court under subsection (1)(a), but, after a reasonable sum has been tendered to the person for the person’s expenses for attending before the court—
(a)
the person fails to attend before the court at the time appointed; and
(b)
at the time of the court’s sitting, no lawful impediment to the attendance is made known to the court and allowed by it,
the court may, by warrant, cause the person to be apprehended and brought before the court.
(6)
If a person claims any lien on the books or papers produced by the person in accordance with subsection (1)(d)—
(a)
the production is without prejudice to that lien; and
(b)
the court has jurisdiction in the winding up to determine all questions relating to that lien.
(Added 14 of 2016 s. 101)
286C.
Examination of persons concerned with company’s property, etc.
(1)
For an examination required under section 286B(1)(b), the court may examine the person on oath as to the promotion, formation, trade, dealings, affairs or property of the company by word of mouth or on written interrogatories.
(2)
The person must answer all questions that the court may put or allow to be put to the person.
(3)
The person may at the person’s own cost employ a solicitor with or without counsel, who may—
(a)
put to the person any questions that the court thinks just for the purpose of enabling the person to explain or qualify any answers given by the person; and
(b)
make representations on the person’s behalf.
(4)
The court may cause notes of the examination to be taken down in writing and require the person examined to sign the notes.
(5)
The court may, if it thinks fit, adjourn the examination from time to time.
(Added 14 of 2016 s. 101)
286D.
(1)
A person is not excused from complying with a direction or requirement imposed on the person under section 286A, 286B or 286C only on the ground that to do so might tend to incriminate the person.
(2)
Despite anything in this Ordinance, if—
(a)
a person is required to—
(i)
answer a question under section 286A or 286C; or
(ii)
submit an affidavit under section 286B; and
(b)
the answer or affidavit might tend to incriminate the person,
the requirement and the question and answer, or affidavit, are not admissible in evidence against the person in criminal proceedings other than those specified in subsection (3).
(3)
The proceedings are those in which the person is charged with any of the following offences in respect of the answer or affidavit—
(a)
an offence under section 349;
(b)
an offence under Part V of the Crimes Ordinance (Cap. 200).
(4)
To avoid doubt, a question or answer not admissible under subsection (2) includes—
(a)
a record of the question or answer contained in the notes of the examination taken down under section 286A(9) or 286C(4); and
(b)
in the case of an examination under section 286C, a record of the question or answer contained in any notes of the examination taken under rule 62(1) of the Companies (Winding-up) Rules (Cap. 32 sub. leg. H).
(Added 14 of 2016 s. 101)
286E.
Jurisdiction of Registrar
(1)
Unless otherwise ordered by the court in a particular case, the Registrar may exercise and perform the powers and duties conferred or imposed on the court by sections 168IA, 286A, 286B and 286C.
(2)
In exercising the jurisdiction conferred by this section, the Registrar may—
(a)
refer any examination for hearing by a judge; and
(b)
at any time adjourn an examination for further hearing before a judge.
(3)
If an examination is referred to a judge under subsection (2)(a), the judge may hear the examination, or refer it back to the Registrar for hearing by the Registrar.
(4)
If an examination is adjourned under subsection (2)(b) for further hearing before a judge, the judge may—
(a)
continue the examination;
(b)
at any time direct that the examination be continued before the Registrar; and
(c)
make any other order or give any directions that the judge considers proper.
(5)
In this Ordinance, a reference to the court includes the Registrar exercising the jurisdiction conferred by this section.
(6)
Despite subsection (5), the Registrar, in exercising the jurisdiction conferred by this section, does not have power to make an order for the committal of a person for contempt of court.
(7)
In this section—
Registrar
(司法常務官
) means any one of the following—(a)
the Registrar of the High Court;
(b)
a Senior Deputy Registrar of the High Court;
(c)
a Deputy Registrar of the High Court;
(d)
an Assistant Registrar of the High Court appointed by the Chief Justice for the purposes of this section.
(Added 14 of 2016 s. 101)
287.
Meetings to ascertain wishes of creditors or contributories
(1)
The court may, as to all matters relating to the winding up of a company, have regard to the wishes of the creditors or contributories of the company, as proved to it by any sufficient evidence, and may, if it thinks fit, for the purpose of ascertaining those wishes, direct meetings of the creditors or contributories to be called, held, and conducted in such manner as the court directs, and may appoint a person to act as chairman of any such meeting and to report the result thereof to the court.
(2)
In the case of creditors, regard shall be had to the value of each creditor’s debt.
(3)
In the case of contributories, regard shall be had to the number of votes conferred on each contributory by this Ordinance or the Companies Ordinance (Cap. 622) or by the articles.
(Amended 28 of 2012 ss. 912 & 920)
[cf. 1929 c. 23 s. 288 U.K.]
288.
(Repealed 6 of 1984 s. 201)
289.
Affidavits, &c.
(1)
Any affidavit required to be sworn under the provisions or for the purposes of this Part may be sworn in Hong Kong, or in any jurisdiction before any court, judge or person authorized under the law of that jurisdiction to take and receive affidavits in that jurisdiction.
(Amended 1 of 1949 s. 18; 6 of 1984 ss. 202 & 259)
(2)
All courts, judges, commissioners, and persons acting judicially shall take judicial notice of the seal or stamp or signature, as the case may be, of any such court, judge or person attached, appended, or subscribed to any such affidavit, or to any other document to be used for the purposes of this Part.
(Amended 47 of 1997 s. 10)
(Amended 25 of 1998 s. 2)
[cf. 1929 c. 23 s. 293 U.K.]
290.
Power of court to declare dissolution of company void
(1)
Subject to subsection (1A), in the case of a company which has been dissolved under section 226A, 227, 239 or 248, the court may at any time within 2 years of the date of the dissolution, on an application being made for the purpose by the liquidator of the company or by any other person who appears to the court to be interested, make an order, upon such terms as the court thinks fit, declaring the dissolution to have been void, and thereupon such proceedings may be taken as might have been taken if the company had not been dissolved.
(Amended 75 of 1993 s. 17)
(1A)
The liquidator of the company or any other person who appears to the court to be interested may at any time apply to extend the period of 2 years referred to in subsection (1) and the court may so extend, on such terms and conditions as seem to it just and expedient, if it is satisfied that there are exceptional circumstances justifying the extension.
(Added 75 of 1993 s. 17)
(2)
It shall be the duty of the person on whose application the order was made, within 7 days after the making of the order, or such further time as the court may allow, to deliver to the Registrar for registration an office copy of the order, and if that person fails so to do he shall be liable to a fine and, for continued default, to daily default fine.
(Amended 7 of 1990 s. 2)
(Amended 6 of 1984 s. 203)
[cf. 1929 c. 23 s. 294 U.K.]
290A.
(Repealed 30 of 1999 s. 18)#
Editorial
Note:
#
Section 290A was repealed by the Companies (Amendment)
Ordinance 1999 (30 of 1999). Section 43 of
that Ordinance provides as
follows—
“43.
Savings
Despite the repeal of sections
265(1)(da), 290A, 290B and 290E
of the principal Ordinance, those sections are to continue to have effect in
relation to a company that has been struck off under section 290A
of the principal Ordinance as if those sections had not been
repealed.”.
290B.
(Repealed 30 of 1999 s. 18)#
Editorial
Note:
#Section
290B was repealed by the Companies (Amendment) Ordinance 1999 (30 of 1999). Section 43 of that Ordinance
provides as
follows—
“43.
Savings
Despite the repeal of sections
265(1)(da), 290A, 290B and 290E
of the principal Ordinance, those sections are to continue to have effect in
relation to a company that has been struck off under section 290A
of the principal Ordinance as if those sections had not been
repealed.”.
290C.
(Repealed 28 of 2012 ss. 912 & 920)
290D.
(Repealed 28 of 2012 ss. 912 & 920)
290E.
(Repealed 30 of 1999 s. 21)#
Editorial
Note:
#Section
290E was repealed by the Companies (Amendment) Ordinance 1999 (30 of 1999). Section 43 of that Ordinance
provides as
follows—
“43.
Savings
Despite the repeal of sections
265(1)(da), 290A, 290B and 290E
of the principal Ordinance, those sections are to continue to have effect in
relation to a company that has been struck off under section 290A
of the principal Ordinance as if those sections had not been
repealed.”.
291.
(Repealed 28 of 2012 ss. 912 & 920)
291A.
(Repealed 28 of 2012 ss. 912 & 920)
291AA.
(Repealed 28 of 2012 ss. 912 & 920)
291AB.
(Repealed 28 of 2012 ss. 912 & 920)
291B.
(Repealed 28 of 2012 ss. 912 & 920)
292.
(Repealed 28 of 2012 ss. 912 & 920)
292A.
(Repealed 28 of 2012 ss. 912 & 920)
293.
Companies liquidation account
(1)
An account, to be called the Companies Liquidation Account, shall be kept by the Official Receiver at such bank as the Chief Executive may from time to time direct, and all moneys received by the Official Receiver in respect of proceedings under this Ordinance in connexion with the winding up of companies shall be paid to that account.
(2)
All payments out of money standing to the credit of the Official Receiver in the Companies Liquidation Account shall be made in the prescribed manner.
[cf. 1929 c. 23 s. 300 U.K.]
294.
Investment of surplus funds on general account
(1)
Whenever the cash balance standing to the credit of the Companies Liquidation Account is in excess of the amount which in the opinion of the Official Receiver is required for the time being to answer demands in respect of companies’ estates, he may invest in his name the whole or any part of such excess on fixed deposit or deposit at call with such bank as he thinks fit or in Government securities.
(Replaced 79 of 1988 s. 9. Amended 23 of 1999 s. 3)
(2)
When any part of the money placed on deposit or otherwise invested under subsection (1) is, in the opinion of the Official Receiver, required to answer any demands in respect of companies’ estates, he shall raise such sum as may be required by the withdrawal of such part of any money placed on deposit or by sale of such part of the securities referred to in subsection (1), as may be necessary.
(Replaced 79 of 1988 s. 9)
(3)
The interest on investments or deposits made under this section, any profits realized on the sale of such investments and any bank interest received shall be paid into the Companies Liquidation Account, and the Official Receiver shall on or before 31 March in each year transfer to the general revenue the accumulated balance of such income, profits and bank interest, after deducting therefrom any losses on the realization of such investments.
(Replaced 15 of 1955 s. 9. Amended 6 of 1984 s. 206)
295.
Separate accounts of particular estates
(1)
The Official Receiver shall keep an account of the receipts and payments in the winding up of each company.
(2)
When the cash balance standing to the credit of the account of any company exceeds by $100,000 or more the amount which, in the opinion of the committee of inspection or where there is no committee of inspection in the opinion of the liquidator, is required for the time being to answer demands in respect of the company’s estate, the Official Receiver shall, on the request of the committee of inspection or where there is no committee of inspection on the request of the liquidator, invest the amount of such excess on fixed deposit or on deposit at call with such bank as the Official Receiver thinks fit or in Government securities, to be placed to the credit of the account of the company.
(Amended 23 of 1999 s. 3)
(3)
When any part of the money so invested is, in the opinion of the committee of inspection or where there is no committee of inspection in the opinion of the liquidator, required to answer any demands in respect of the estate of the company, the Official Receiver shall, on the request of the committee of inspection or where there is no committee of inspection on the request of the liquidator, raise such sum as may be required by the withdrawal of such part of any money placed on deposit or by the sale of such part of the securities referred to in subsection (2), as may be necessary.
(4)
Out of the interest paid on the investments made under this section, an amount
equal to
1
% per annum (or such other rate as may be fixed by the Financial
Secretary for the purposes of this section by notice published in the Gazette) of
the money invested shall be paid to the credit of the Official Receiver and the
balance shall be paid to the credit of the company.
(5)
The Official Receiver shall on or before 31 March in each year transfer to the general revenue the accumulated amount paid to his credit under subsection (4).
(Replaced 38 of 1987 s. 4)
296.
General rules and fees
(1)
The Chief Justice may, with the approval of the Legislative Council, make general rules for carrying into effect the objects of this Ordinance and the Companies Ordinance (Cap. 622) so far as relates to the winding up of companies.
(Amended 28 of 2012 ss. 912 & 920)
(2)
All rules and orders made under this section shall be judicially noticed, and shall have effect as if enacted by this Ordinance.
(2A)
An answer given by a person to a question put to him in exercise of powers conferred by rules made under this section may be used in evidence against him.
(Added 72 of 1994 s. 10)
(3)
There shall be paid in respect of the relevant proceedings, where no fee is
otherwise fixed, such fees as the Chief Justice may, with the approval of the
Legislative
Council,
by order
direct, and he may direct by whom and in what manner the same are to be collected
and accounted for.
(Amended 28 of 2012 ss. 912 & 920)
(3A)
In subsection (3)—
relevant proceedings
(有關法律程序
) means—(a)
proceedings under this Ordinance (other than winding up proceedings); or
(b)
proceedings in the winding up of companies, including those where proceedings under this Ordinance or the Companies Ordinance (Cap. 622) are taken with respect to a company which is being wound up.
(Added 28 of 2012 ss. 912 & 920)
(4)
The amount of any fees prescribed under this section shall not be limited by reference to the amount of administrative or other costs incurred or likely to be incurred by the Official Receiver in the winding up of companies or of any particular company.
(Added 38 of 1987 s. 5)
(5)
Without prejudice to the generality of subsection (4), fees referred to in that subsection may be fixed by reference to a scale of fees and percentages.
(Added 38 of 1987 s. 5)
(6)
Rules or orders made under this section may authorize the court to fix any fee or to vary the amount of any fee otherwise prescribed.
(Added 38 of 1987 s. 5)
(7)
No fee prescribed under this section shall be invalid by reason only of the amount of that fee.
(Added 38 of 1987 s. 5)
(8)
Fees required to be paid under rules or orders made under this section shall be recoverable as debt.
(Added 38 of 1987 s. 5. Amended L.N. 587 of 1995)
(9)
Rules or orders made under this section before the commencement of the Companies (Amendment)(No. 2) Ordinance 1987 (38 of 1987) and in force immediately before such commencement shall have effect as from the commencement of that Ordinance as if made under this section as amended by that Ordinance.
(Added 38 of 1987 s. 5)
(Amended 6 of 1984 s. 208; 38 of 1987 s. 5)
[cf. 1929 c. 23 s. 305 U.K.]
296A.
Interpretation of Division 6
(1)
In this Division—
address
(地址
) includes an electronic address;applicable provision
(適用條文
) means a provision of this Ordinance or the Winding-up Rules that authorizes or requires a document or information to be sent or supplied by a liquidator or provisional liquidator to another person, whether the document or information is authorized or required to be sent or supplied by post or otherwise, and whether or not in writing or printed form;(2)
In this Division—
(a)
a reference to sending a document includes supplying, delivering, forwarding or producing the document and, in the case of a notice, giving the document;
(b)
a reference to supplying information includes sending, delivering, forwarding or producing the information; and
(c)
a document or information is sent or supplied in hard copy form if it is sent or supplied—
(i)
in paper form; or
(ii)
in a similar form capable of being read.
296B.
Application of
Division 6
(1)
Subject to subsection (2), this Division applies to every mode of winding
up.
(2)
This Division does not apply to—
(a)
the serving of any document;
(b)
the sending or supplying of any document or information under an order or
direction of the court;
(c)
the sending or supplying of the following documents or information—
(i)
the notes of an examination conducted under section
286C;
(ii)
a notice of intention to use the notes of a public examination under
rule 59 of the Winding-up Rules;
(iii)
(iv)
oaths, affidavits, declarations or documents that are required to be
certified in writing, or verified on oath or by affidavit under this
Ordinance;
(v)
a sanction required or authorized to be given by the liquidator or
provisional liquidator under this Ordinance;
(vi)
Forms 10, 31, 38C, 39, 40, 41, 42, 45, 47, 65, 67, 70, 71, 73, 79 and
90 in the Appendix to the Winding-up Rules, including documents purporting
to be such Forms;
(vii)
the Cash Book under rule 159 of the Winding-up
Rules;
(viii)
any order, summons, petition, warrant or process of any kind (including
any notice issued by the court) and their office copies that are required to
be sealed under rule 11 of the Winding-up Rules; or
(d)
the sending or supplying of a document or information to—
(i)
the court (including the Registrar of the High Court, the bailiff of
the court and any assistant bailiff);
(ii)
the Financial Secretary;
(iii)
the Secretary for Justice;
(iv)
the Land Registry;
(v)
the Official Receiver; or
(vi)
the Registrar of Companies.
(3)
Nothing in this Division affects the obligation of the liquidator or
provisional liquidator to comply with a requirement under this Ordinance to
publish
or give any notice, order or matter by the specified means.
(Amended 22 of 2023 s. 64)
296C.
Communication by liquidator by electronic means
(1)
Subject to subsection (2), this section applies if a document or information is sent or supplied by electronic means by a liquidator or provisional liquidator to another person.
(2)
This section does not apply if the document or information is sent or supplied by the liquidator or provisional liquidator to that other person by making it available on a website.
(3)
For the purposes of an applicable provision, a document or information is sent or supplied to another person if—
(a)
that other person has agreed, generally or specifically, that the liquidator or provisional liquidator may send or supply the document or information to the person by electronic means;
(b)
that other person has not revoked the agreement;
(c)
that other person has specified, generally or specifically, an electronic address for receiving the document or information;
(d)
the document or information is sent or supplied to that other person by electronic means to the electronic address mentioned in paragraph (c);
(e)
the document or information is sent or supplied in a form, and by a means, that, in the reasonable opinion of the liquidator or provisional liquidator, will enable the recipient—
(i)
to read the document or information, or, to the extent that it consists of images, to see the document or information, with the naked eye or with a suitable corrective lens; and
(ii)
to retain a copy of the document or information;
(f)
the document or information is authenticated in one of the following ways—
(i)
the identity of the liquidator or provisional liquidator is confirmed in a manner specified by that other person;
(ii)
if the manner has not been specified, the communication contains, or is accompanied by, a statement of the identity of the liquidator or provisional liquidator, the truth of which the other person has no reason to doubt; and
(g)
the document or information contains, or is accompanied by, a statement that—
(i)
the recipient may request the document or information in hard copy form; and
(ii)
a postal address and an electronic address specified by the liquidator or provisional liquidator as provided in the statement may be used to request the document or information in hard copy form.
(4)
For the purposes of subsection (3)(b), the person is only to be regarded as having revoked the agreement if the person has given the liquidator or provisional liquidator a notice of revocation of at least—
(a)
7 days; or
(b)
the period specified for the purpose in any agreement between the liquidator or provisional liquidator and the person,
whichever is the longer.
(5)
If the document or information is sent or supplied to that other person in accordance with this section, unless the contrary is proved, the document or information is to be regarded as having been received by the person at the end of the following period after it is sent or supplied—
(a)
the period specified for the purpose in any agreement between the liquidator or provisional liquidator and the person; or
(b)
if no period has been specified, 48 hours.
(6)
In calculating the period mentioned in subsection (5)(b), any part of a day that is not a business day is to be disregarded.
296D.
Communication by liquidator by means of website
(1)
This section applies if a document or information is sent or supplied by a liquidator or provisional liquidator to another person by making it available on a website.
(2)
For the purposes of an applicable provision, a document or information is sent or supplied to another person if—
(a)
that other person has agreed, generally or specifically, that the liquidator or provisional liquidator may send or supply the document or information to the person by making it available on a website;
(b)
that other person has not revoked the agreement;
(c)
the document or information is sent or supplied in a form, and by a means, that, in the reasonable opinion of the liquidator or provisional liquidator, will enable the recipient—
(i)
to read the document or information, or, to the extent that it consists of images, to see the document or information, with the naked eye or with a suitable corrective lens; and
(ii)
to retain a copy of the document or information;
(d)
that other person has provided an address for receiving the notification mentioned in paragraph (e);
(e)
the liquidator or provisional liquidator has sent a notification to the address notifying that other person of—
(i)
the matters specified in subsection (5);
(ii)
the right of the recipient to request the document or information in hard copy form; and
(iii)
the fact that a postal address and an electronic address specified by the liquidator or provisional liquidator as provided in the notification may be used to request the document or information in hard copy form; and
(f)
subject to subsection (3), the liquidator or provisional liquidator has made the document or information available on a website throughout the 3 months beginning on the date on which the notification is sent to that other person in accordance with paragraph (e).
(3)
If the liquidator makes available on the website a copy of a proposed written resolution mentioned in section 207E(1), the copy must be available throughout the period—
(a)
beginning on the circulation date; and
(b)
ending on—
(i)
the date on which the resolution lapses under section 207H(1); or
(ii)
the date on which the resolution is passed under section 207G(1).
(4)
For the purposes of subsection (2)(b), the person is only to be regarded as having revoked the agreement if the person has given the liquidator or provisional liquidator a notice of revocation of at least—
(a)
7 days; or
(b)
the period specified for the purpose in any agreement between the liquidator or provisional liquidator and the person,
whichever is the longer.
(5)
The matters specified for the purposes of subsection (2)(e)(i) are—
(a)
the presence of the document or information on the website;
(b)
if the document or information is not available on the website on the date of the notification, the date on which it will be so available;
(c)
the address of the website;
(d)
the place on the website where the document or information may be accessed; and
(e)
how to access the document or information.
(6)
For the purposes of subsections (2)(f) and (3), a failure to make the document or information available on a website throughout the period mentioned in those subsections is to be disregarded if—
(a)
the document or information is made available on the website for part of that period; and
(b)
the failure is wholly attributable to circumstances that it would not be reasonable to have expected the liquidator or provisional liquidator to prevent or avoid.
(7)
If the document or information is sent or supplied by a liquidator or provisional liquidator to that other person in accordance with subsection (2)—
(a)
the document or information is to be regarded as having been sent or supplied on whichever is the later of the following—
(i)
the date on which the document or information is first made available on the website;
(ii)
the date on which a notification under subsection (2)(e) is sent; and
(b)
the document or information is to be regarded as having been received by that other person at the end of the period specified in subsection (8) after whichever is the later of the following—
(i)
the time when the document or information is first made available on the website;
(ii)
the time when that other person receives a notification under subsection (2)(e).
(8)
The period specified for the purpose of subsection (7)(b) is—
(a)
the period specified for the purpose in any agreement between the liquidator or provisional liquidator and that other person; or
(b)
if no period has been specified, 48 hours.
(9)
In calculating the period mentioned in subsection (8)(b), any part of a day that is not a business day is to be disregarded.
296E.
Certain persons may require hard copy
(1)
A person who has received a document or information by electronic means under section 296C may request the liquidator or provisional liquidator to send or supply to the person the document or information in hard copy form. The request must be made within 28 days after the date of receiving the document or information.
(2)
A person who has received a notification under section 296D(2)(e) that a document or information is made available on a website, may request the liquidator or provisional liquidator to send or supply to the person the document or information in hard copy form. The request must be made within 28 days after the date of receiving the notification.
(3)
The request may be sent to the postal address or electronic address of the liquidator or provisional liquidator specified in the relevant statement or notification.
(4)
If a request is sent to the electronic address of the liquidator or provisional liquidator in accordance with subsection (3), the request is to be regarded as having been received by the liquidator or provisional liquidator at the end of 48 hours after it is sent, unless the contrary is proved.
(5)
In calculating the period mentioned in subsection (4), any part of a day that is not a business day is to be disregarded.
(6)
The liquidator or provisional liquidator must send or supply the document or information in hard copy form to the person making the request free of charge within 5 business days after the date of receiving the request.
(7)
A liquidator or provisional liquidator who contravenes subsection (6) commits an offence and is liable on conviction to a fine.
297.
Disqualification for appointment as receiver
(1)
A body corporate shall not be qualified for appointment as receiver of the property of a company.
(2)
Any body corporate which acts as receiver as aforesaid shall be liable to a fine.
[cf. 1929 c. 23 s. 306 U.K.]
297A.
Disqualification of undischarged bankrupts
No person being an undischarged bankrupt shall be qualified for appointment as receiver or manager of the property of a company on behalf of debenture holders, and if such person acts as such receiver or manager, he shall be guilty of an offence and liable to imprisonment and a fine.
(Added 6 of 1984 s. 209. Amended 7 of 1990 s. 2)
[cf. 1948 c. 38 s. 367 U.K.]
297B.
Inducement
affecting appointment etc. as receiver or manager
(1)
A person who gives, or agrees or offers to give, to any other person valuable
consideration with a view to—
(a)
securing his or her own appointment or nomination as the receiver or
manager of the property of a company; or
(b)
securing or preventing the appointment or nomination of some person other
than himself or herself as the receiver or manager of the property of a
company,
commits an offence and is liable on conviction to a fine.
(2)
Subsection (1) does not apply—
(a)
if—
(i)
the person who gives, or agrees or offers to give, the valuable
consideration is a practice unit;
(ii)
the person who is given, or agreed or offered to be given, the valuable
consideration is an employee of the practice unit; and
(iii)
under an arrangement between the practice unit and the employee, the
employee’s remuneration is based in whole or in part on introductions
obtained for the practice unit through the employee’s efforts; or
(b)
if the appointment or nomination of a person as the receiver or manager of
the property of a company is the result of—
(i)
a transfer or sale of the business, or a part of the business, of a
practice unit; or
(ii)
a change in composition of a practice unit within the meaning of
section
20ZZF(6)
of the Accounting and Financial Reporting Council Ordinance (Cap. 588).
(Amended L.N. 66 of
2022)
(3)
In this section—
practice unit
(執業單位
)
has the meaning given by section 2(1) of the
Accounting
and Financial Reporting Council Ordinance (Cap. 588).
(Amended L.N. 66 of
2022)
(Added 14 of 2016 s. 106)
298.
Power to appoint Official Receiver as receiver for debenture holders or creditors
Where an application is made to the court to appoint a receiver on behalf of the debenture holders or other creditors of a company which is being wound up by the court, the Official Receiver may be so appointed.
[cf. 1929 c. 23 s. 307 U.K.]
298A.
Receivers and managers appointed out of court
(1)
A receiver or manager of the property of a company appointed under the powers contained in any instrument, or a holder of debentures of the company, may apply to the court for directions in relation to any particular matter arising in connexion with the performance of the functions of such receiver or manager, and on any such application the court may give such directions, or may make such order declaring the rights of persons before the court or otherwise, as the court thinks just.
(2)
A receiver or manager of the property of a company appointed as aforesaid shall, to the same extent as if he had been appointed by order of a court, be personally liable on any contract entered into by him in the performance of his functions, except in so far as the contract otherwise provides, and entitled in respect of that liability to indemnity out of the assets; but nothing in this subsection shall be taken as limiting any right to indemnity which he would have apart from this subsection, or as limiting his liability on contracts entered into without authority or as conferring any right to indemnity in respect of that liability.
(3)
This section shall apply whether the receiver or manager was appointed before
or after the
commencement#
of the Companies (Amendment) Ordinance 1984 (6 of 1984)
but subsection (2) shall not apply to contracts entered into before the commencement
of that Ordinance.
(Added 6 of 1984 s. 210)
[cf. 1948 c. 38 s. 369 U.K.]
Editorial Note:
#
Commencement date: 31 August 1984.
299.
Notification that receiver or manager appointed
(1)
Where a receiver or manager of the property of a company has been appointed, every invoice, order for goods or business letter issued by or on behalf of the company or the receiver or manager or the liquidator of the company, being a document on or in which the name of the company appears, shall contain a statement that a receiver or manager has been appointed.
(2)
If default is made in complying with the requirements of this section, the company and any of the following persons who knowingly and wilfully authorizes or permits the default, namely, any officer of the company, any liquidator of the company and any receiver or manager, shall be liable to a fine.
(Replaced 6 of 1984 s. 211. Amended 7 of 1990 s. 2)
[cf. 1929 c. 23 s. 308 U.K.]
300.
Power of court to fix remuneration on application of liquidator
(1)
The court may, on an application made to the court by the liquidator of a company, by order fix the amount to be paid by way of remuneration to any person who, under the powers contained in any instrument, has been appointed as receiver or manager of the property of the company, and may from time to time, on an application made either by the liquidator, or by the receiver or manager, vary or amend any order so made.
(Amended 6 of 1984 s. 212)
(2)
The power of the court under subsection (1) shall, where no previous order has
been made with respect thereto under that subsection,—
(a)
extend to fixing the remuneration for any period before the making of the
order or the application therefor; and
(b)
be exercisable notwithstanding that the receiver or manager has died or
ceased to act before the making of the order or the application therefor;
and
(c)
where the receiver or manager has been paid or has retained for his
remuneration for any period before the making of the order any amount in excess
of that so fixed for that period, extend to requiring him or his personal
representatives to account for the excess or such part thereof as may be
specified in the order:
Provided that the power conferred
by paragraph (c) shall not be exercised as respects any period before the making of
the application for the order unless in the opinion of the court there are special
circumstances making it proper for the power to be so exercised.
(Added 6 of 1984 s. 212)
(3)
This section shall apply whether the receiver or manager was appointed before
or after the
commencement#
of the Companies (Amendment) Ordinance 1984 (6 of
1984), and to periods before, as well as to periods after, the commencement of
that Ordinance.
(Added 6 of 1984 s. 212)
[cf. 1929 c. 23 s. 309 U.K.]
Editorial Note:
#
Commencement date: 31 August 1984.
300A.
Provisions as to information where receiver or manager is appointed
(1)
Where a receiver or manager of the whole or substantially the whole of the property of the company (in this section and in section 300B referred to as the receiver) is appointed on behalf of the holders of any debentures of the company secured by a floating charge, then subject to the provisions of this section and section 300B—
(a)
the receiver shall forthwith send to the company notice of his appointment in the specified form; and
(Amended 3 of 1997 s. 44)
(b)
there shall, within 14 days after receipt of the notice, or such longer period as may be allowed by the court or by the receiver, be made and submitted to the receiver in accordance with section 300B a statement in the specified form as to the affairs of the company (the statement of affairs); and
(c)
the receiver shall within 2 months after receipt of the statement of affairs send—
(Amended 28 of 2003 s. 92)
(i)
to the Registrar and to the court, a copy of the statement and of any comments he sees fit to make thereon and in the case of the Registrar also a summary of the statement and of his comments (if any) thereon; and
(ii)
to the company, a copy of any such comments as aforesaid or, if he does not see fit to make any comment, a notice to that effect; and
(iii)
to any trustees for the debenture holders on whose behalf he was appointed and, so far as he is aware of their addresses, to all such debenture holders a copy of the said summary.
(2)
The receiver shall within 2 months, or such longer period as the court may allow after the expiration of the period of 12 months from the date of his appointment and of every subsequent period of 12 months, and within 2 months or such longer period as the court may allow after he ceases to act as receiver or manager of the property of the company, send to the Registrar, to any trustees for the debenture holders of the company on whose behalf he was appointed, to the company and (so far as he is aware of their addresses) to all such debenture holders an abstract in the specified form showing his receipts and payments during that period of 12 months or, where he ceases to act as aforesaid, during the period from the end of the period to which the last preceding abstract
related up to the date of his so ceasing, and the aggregate amounts of his receipts and of his payments during all preceding periods since his appointment.
(Amended 3 of 1997 s. 44)
(3)
Where the receiver is appointed under the powers contained in any instrument, this section shall have effect—
(a)
with the omission of the references to the court in subsection (1); and
(b)
with the substitution for the references to the court in subsection (2) of references to the Official Receiver.
(4)
Subsection (1) shall not apply in relation to the appointment of a receiver or manager to
act with an existing receiver or manager or in place of a receiver or manager dying
or ceasing to act, except that, where that subsection applies to a receiver or
manager who dies or ceases to act before it has been fully complied with, the
references in paragraphs (b) and (c) thereof to the receiver shall, subject to
subsection (5), include references to his successor and to any continuing receiver
or
manager.
Nothing
in this subsection shall be taken as limiting the meaning of the expression
the receiver where used in, or in relation to, subsection
(2).
(5)
This section and section 300B, where the company is being wound up, shall apply notwithstanding that the receiver or manager and the liquidator are the same person, but with any necessary modifications arising from that fact.
(6)
Nothing in subsection (2) shall be taken to prejudice the duty of the receiver to render proper accounts of his receipts and payments to the persons to whom, and at the times at which, he may be required to do so apart from that subsection.
(7)
If the receiver makes default in complying with the requirements of this section, he shall be liable to a fine and, for continued default, to a daily default fine.
(Amended 7 of 1990 s. 2)
(8)
This section shall not apply where the receiver or manager was appointed before
the
commencement#
of the Companies (Amendment) Ordinance 1984 (6 of
1984).
(Added 6 of 1984 s. 213)
[cf. 1948 c. 38 s. 372 U.K.]
Editorial Note:
#
Commencement date: 31 August 1984.
300B.
Special provisions as to statement submitted to receiver
(1)
The statement of affairs required by section 300A to be submitted to the receiver (or his successor) shall show as at the date of the receiver’s appointment the particulars of the company’s assets, debts and liabilities, the names, addresses and occupations of its creditors, the securities held by them respectively, the dates when the securities were respectively given and such further or other information as may be prescribed.
(2)
The statement of affairs required by section 300A shall be made and submitted by, and be verified by statement in writing signed by, one or more of the persons who are at the date of the receiver’s appointment the directors and by the person who is at that date the company secretary of the company, or by such of the persons hereafter in this subsection mentioned as the receiver (or his successor), subject to the direction of the court, may require to make,
submit and verify the statement of affairs, that is to say, persons—
(a)
who are or have been officers of the company;
(b)
who have taken part in the formation of the company at any time within 1 year before the date of the receiver’s appointment;
(c)
who are in the employment of the company, or have been in the employment of the company within the said year, and are in the opinion of the receiver capable of giving the information required;
(d)
who are or have been within the said year officers of or in the employment of a company which is, or within the said year was, an officer of the company to which the statement of affairs relates.
(3)
Any person making the statement of affairs required by section 300A or the written statement required by subsection (2) shall be allowed, and shall be paid by the receiver (or his successor) out of his receipts, such costs and expenses incurred in and about the preparation and making of the statement of affairs or written statement as the receiver (or his successor) may consider reasonable, subject to an appeal to the court.
(4)
Where the receiver is appointed under the powers contained in any instrument, this section shall have effect with the substitution for references to the court of references to the Official Receiver.
(5)
If any person without reasonable excuse makes default in complying with the requirements of this section, he shall be liable to a fine and, for continued default, to a daily default fine.
(Amended 7 of 1990 s. 2)
(6)
References in this section to a receiver’s successor shall include a continuing receiver or manager.
(7)
This section shall not apply where the receiver or manager was appointed before
the
commencement#
of the Companies (Amendment) Ordinance 1984 (6 of
1984).
(Added 6 of 1984 s. 213. Amended 28 of 2003 s. 93)
[cf. 1948 c. 38 s. 373 U.K.]
Editorial Note:
#
Commencement date: 31 August 1984.
301.
Delivery to Registrar of accounts of receivers and managers
(1)
Except where section 300A(2) applies, every receiver or manager of the property of a company who has been appointed under the powers contained in any instrument shall, within 1 month, or such longer period as the Registrar may allow, after the expiration of the period of 6 months from the date of his appointment and of every subsequent period of 6 months and within 1 month after he ceases to act as receiver or manager, deliver to the Registrar for registration an abstract in the specified form showing his receipts and his payments during that period of 6 months, or, where he ceases to act as aforesaid, during the period from the end of the period to which the last preceding abstract related up to the date of his so ceasing, and the aggregate amount of his receipts and of his payments during all preceding periods since his appointment.
(Amended 3 of 1997 s. 45)
(2)
Any receiver or manager who makes default in complying with the provisions of this section shall be liable to a fine and, for continued default, to a daily default fine.
(Amended 7 of 1990 s. 2 )
(Amended 6 of 1984 s. 214)
[cf. 1929 c. 23 s. 310 U.K.]
302.
Enforcement of duty of receiver to make returns, &c.
(1)
If—
(a)
any receiver or manager of the property of a company, who has made default in filing, delivering or making any return, account or other document or in giving any notice, which a receiver or manager is by law required to file, deliver, make or give, fails to make good the default within 14 days after the service on him of a notice requiring him to do so; or
(b)
any receiver or manager of the property of a company who has been appointed under the powers contained in any instrument, has, after being required at any time by the liquidator of the company so to do, failed to render proper accounts of his receipts and payments and to vouch the same and to pay over to the liquidator the amount properly payable to him;
the court may, on an application made for the purpose, make an order directing the receiver or manager, as the case may be, to make good the default within such time as may be specified in the order.
(Amended 6 of 1984 s. 215)
(2)
In the case of any such default as is mentioned in subsection (1)(a), an application for the purposes of this section may be made by any member or creditor of the company or by the Registrar, and in the case of any such default as is mentioned in subsection (1)(b), the application shall be made by the liquidator, and in either case the order may provide that all costs of and incidental to the application shall be borne by the receiver or manager, as the case may be.
(Replaced 6 of 1984 s. 215)
(3)
Nothing in this section shall be taken to prejudice the operation of any enactment imposing penalties on receivers or managers in respect of such default as is mentioned in subsection (1).
(Replaced 6 of 1984 s. 215)
[cf. 1929 c. 23 s. 311 U.K.]
302A.
Construction of references to receivers and managers
Except where the context otherwise requires—
(a)
any reference in this Ordinance to a receiver or manager of the property of a company, or to a receiver thereof, includes a reference to a receiver or manager, or (as the case may be) to a receiver, of part only of that property and to a receiver only of the income arising from that property or from part thereof; and
(b)
any reference in this Ordinance to the appointment of a receiver or manager under powers contained in any instrument includes a reference to an appointment made under powers conferred by any enactment including powers which, by virtue of any enactment, are implied in and have effect as if contained in an instrument.
(Added 6 of 1984 s. 216)
[cf. 1948 c. 38 s. 376 U.K.]
303.
(Repealed 28 of 2012 ss. 912 & 920)
303A.
(Repealed 28 of 2003 s. 94)
303B.
(Repealed 28 of 2012 ss. 912 & 920)
304.
(Repealed 28 of 2012 ss. 912 & 920)
305.
(Repealed 28 of 2012 ss. 912 & 920)
305A.
(Repealed 28 of 2012 ss. 912 & 920)
306.
Enforcement of duties under Ordinance by court order
(1)
If a company or any officer of a company, having made default in complying with any requirement of this Ordinance, fails to make good the default within 14 days after the service of a notice on the company or officer requiring the company or officer to comply with that requirement, the court may, on an application made to it by any member or creditor of the company or by the Registrar, make an order—
(a)
where the default was that of the company, directing the company and any officer thereof;
(b)
where the default was that of an officer, directing that officer,
to make good the default within such time as may be specified in the order.
(2)
Any such order may provide that all costs of and incidental to the application shall be borne—
(a)
where the default was that of a company, by the company or by any officer of the company responsible for the default;
(b)
where the default was that of an officer, by that officer.
(3)
Nothing in this section shall be taken to prejudice the operation of any enactment imposing penalties on a company or any officer of a company in respect of any such default as aforesaid.
(Replaced 6 of 1984 s. 219)
[cf. 1948 c. 38 s. 428 U.K.]
Part VIII
Application of Ordinance to Companies Formed or Registered under Companies
Ordinances
(Amended 28 of 2012 ss. 912 & 920)
(Format changes—E.R. 1 of 2014)
307.
Application of Ordinance to companies formed under former Companies
Ordinance
In the application of this Ordinance to existing companies, it shall apply in the
same manner—
(a)
in the case of a limited company, other than a company limited by guarantee, as
if the company had been formed and registered under the Companies Ordinance (Cap. 622) as a company limited by shares;
(b)
in the case of a company limited by guarantee, as if the company had been
formed and registered under the Companies Ordinance (Cap.
622) as a company limited by guarantee; and
(c)
in the case of a company other than a limited company, as if the company had
been formed and registered under the Companies Ordinance (Cap. 622) as an unlimited company:
(Amended 28 of 2012 ss. 912 & 920)
Provided that reference, express or
implied, to the date of registration shall be construed as a reference to the date at
which the company was registered under a former Companies Ordinance.
(Amended 28 of 2012 ss. 912 & 920)
[cf. 1929 c. 23 s. 316 U.K.]
308.
Application of Ordinance to companies registered under Companies
Ordinances
(1)
Subject to section 308A, this Ordinance applies to a company
registered but not formed under the Companies Ordinance (Cap.
622) and its officers, members, contributories and creditors in the same
manner in all respects as if the company had been formed under that
Ordinance.
(2)
This Ordinance applies to a company registered but not formed under a former
Companies Ordinance and its officers, members, contributories and creditors in the
same manner as it applies to a company registered but not formed under the Companies
Ordinance (Cap. 622).
(3)
For the purposes of applying this Ordinance to a company registered but not
formed under a former Companies Ordinance or the Companies Ordinance (Cap. 622), a reference in this Ordinance to the date of
registration is to be read as the date on which the company was registered under the
former Companies Ordinance or the Companies Ordinance (Cap.
622), as the case may be.
(Replaced 28 of 2012 ss. 912 & 920)
308A.
Exceptions to section 308
(1)
If a company registered but not formed under the Companies Ordinance (Cap. 622) is wound up, every person who has a relevant
liability is—
(a)
a contributory in respect of the company’s debts and liabilities contracted
before registration; and
(b)
a contributory who is liable to contribute to the assets of the company, in
the course of the winding up, all sums due from the person in respect of the
relevant liability.
(2)
In subsection (1)—
relevant liability
(相關法律責任
)
means the liability to pay or contribute to the payment of—(a)
the company’s debts and liabilities contracted before the
registration;
(b)
any sum for the adjustment of the rights of the members among
themselves in respect of those debts and liabilities; or
(c)
the costs and expenses of winding up the company, so far as relating to
those debts and liabilities.
(3)
In the event of the death or bankruptcy of such a contributory, the provisions
of this Ordinance with respect to the personal representatives of deceased
contributories, and to the trustees of bankrupt contributories, apply.
(Added 28 of 2012 ss. 912 & 920)
309.
Application of Ordinance to companies re-registered under Companies
Ordinances
(1)
This Ordinance as read with section 133 of the Companies Ordinance
(Cap. 622) applies to an unlimited company
registered as a limited company under—
(a)
section 58 of the Companies Ordinance 1911 (58 of 1911);
(b)
section 19 of the pre-amended Ordinance; and
(c)
section 130 of the Companies Ordinance (Cap. 622).
(2)
For the purposes of applying this Ordinance to an unlimited company registered
as a limited company under the Companies Ordinance 1911 (58
of 1911), the pre-amended Ordinance or the Companies Ordinance (Cap. 622), a reference in this Ordinance to the date of
registration is to be read as the date on which the unlimited company was registered
as a limited company under the Companies Ordinance 1911 (58
of 1911), the pre-amended Ordinance or the Companies Ordinance (Cap. 622), as the case may be.
(Replaced 28 of 2012 ss. 912 & 920)
Part IX
Companies not Formed, but Registered, under Companies
Ordinances
(Amended 28 of 2012 ss. 912 & 920)
(Format changes—E.R. 1 of 2014)
310.
(Repealed 28 of 2012 ss. 912 & 920)
311.
(Repealed 28 of 2012 ss. 912 & 920)
312.
(Repealed 28 of 2012 ss. 912 & 920)
313.
(Repealed 28 of 2012 ss. 912 & 920)
314.
(Repealed 28 of 2012 ss. 912 & 920)
315.
(Repealed 28 of 2012 ss. 912 & 920)
316.
(Repealed 28 of 2012 ss. 912 & 920)
317.
(Repealed 28 of 2012 ss. 912 & 920)
318.
(Repealed 28 of 2012 ss. 912 & 920)
319.
(Repealed 28 of 2012 ss. 912 & 920)
320.
(Repealed 28 of 2012 ss. 912 & 920)
321.
(Repealed 28 of 2012 ss. 912 & 920)
322.
(Repealed 28 of 2012 ss. 912 & 920)
323.
(Repealed 28 of 2012 ss. 912 & 920)
324.
Power of court to stay or restrain proceedings
The provisions of this Ordinance with respect to staying and restraining actions
and proceedings against a company at any time after the presentation of a petition for
winding up and before the making of a winding-up order shall, in the case of a company
registered in pursuance of Part IX of the pre-amended Ordinance, or Part 17
of the Companies Ordinance (Cap. 622), where the
application to stay or restrain is by a creditor, extend to actions and proceedings
against any contributory of the company.
(Amended 28 of 2012 ss. 912 & 920)
[cf. 1929 c. 23 s. 335 U.K.]
325.
Actions stayed on winding-up order
Where an order has been made for winding up a company registered in pursuance of
Part IX of the pre-amended Ordinance, or Part 17 of the Companies Ordinance
(Cap. 622), no action or proceeding shall be commenced
or proceeded with against the company or any contributory of the company in respect of
any debt of the company, except by leave of the court, and subject to such terms as the
court may impose.
(Amended 28 of 2012 ss. 912 & 920)
[cf. 1929 c. 23 s. 336 U.K.]
326.
Meaning of
unregistered
companies
(1)
For the purposes of this Part,
unregistered company
(非註冊公司
) includes any partnership, whether
limited or not, any association and any company with the following
exceptions— (Amended 3 of 1997 s. 48)
(a)
a company registered under the Companies Ordinance 1865 (1 of 1865), or under the Companies Ordinance
1911 (58 of 1911), or under the pre-amended
Ordinance, or under the Companies Ordinance (Cap.
622);
(b)
a partnership, association or company which consists of less than 8
members and is not formed or established outside Hong Kong;
(Amended 23 of 1998 s. 2)
(c)
a partnership registered in Hong Kong under the Limited Partnerships
Ordinance (Cap. 37).
(Amended 6 of 1984 s. 259)
(2)
For the avoidance of doubt, it is declared that in subsection (1),
unregistered company includes a registered non-Hong Kong
company.
(Replaced 30 of 2004 s. 2.)
Note—
For the application of this Part to a limited
partnership fund (as defined by section 2 of the Limited Partnership Fund
Ordinance
(Cap.
637)),
see Division 2 of Part 6 of that Ordinance.
(Added 14 of 2020 s. 104. Amended E.R. 5 of 2020)
(Amended 28 of 2012 ss. 912 & 920)
[cf. 1929 c. 23 s. 337 U.K.]
327.
Winding up of unregistered companies
(1)
Subject to the provisions of this Part, any unregistered company may be wound up under this Ordinance, and all the provisions of this Ordinance with respect to winding up shall apply to an unregistered company, with the exceptions and additions mentioned in this section.
(2)
No unregistered company shall be wound up voluntarily under this Ordinance.
(3)
The circumstances in which an unregistered company may be wound up are as follows—
(a)
if the company is dissolved, or has ceased to carry on business, or is carrying on business only for the purpose of winding up its affairs;
(b)
if the company is unable to pay its debts;
(c)
if the court is of opinion that it is just and equitable that the company should be wound up.
(4)
An unregistered company shall, for the purposes of this Ordinance, be deemed to be unable to pay its debts—
(a)
if—
(i)
a creditor, by assignment or otherwise, to whom the company is indebted in a sum then due that equals or exceeds the specified amount, has served on the company a written demand in the prescribed form requiring the company to pay the sum so due—
(A)
by leaving the demand at the principal place of business of the company;
(B)
by delivering the demand to any officer of the company; or
(C)
by otherwise serving the demand in any manner that the court may approve or direct; and
(ii)
the company has for 3 weeks after the service of the demand neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor;
(Replaced 14 of 2016 s. 109)
(b)
if any action or other proceeding has been instituted against any member for any debt or demand due, or claimed to be due, from the company, or from him in his character of member, and notice in writing of the institution of the action or proceeding having been served on the company by leaving the same at its principal place of business, or by delivering it to any officer of the company, or by otherwise serving the same in such manner as the court may approve or direct, the company has not within 10 days after service of the notice paid, secured or compounded for the debt or demand, or procured the action or proceeding to be stayed, or indemnified the defendant to his reasonable satisfaction against the action or proceeding, and against all costs, damages and
expenses to be incurred by him by reason of the same;
(c)
if execution or other process issued on a judgment, decree or order obtained in any court in favour of a creditor against the company, or any member thereof as such, or any person authorized to be sued as nominal defendant on behalf of the company, is returned unsatisfied; or
(Amended 14 of 2016 s. 109)
(d)
if it is otherwise proved to the satisfaction of the court that the company is unable to pay its debts.
(5)
For the purpose of subsection (4)(a),
specified amount
(指明款額
) means the amount of $10,000 or, where an amount is prescribed under subsection (6), the prescribed amount.
(Added 28 of 2003 s. 103)
(6)
The Financial Secretary may, by regulation, prescribe any amount for the purposes of subsection (5).
(Added 28 of 2003 s. 103)
(Replaced 6 of 1984 s. 222)
[cf. 1948 c. 38 s. 399 U.K.]
327A.
Certain
companies incorporated outside Hong Kong may be wound up although
dissolved
(Amended 14 of 2025 s. 108)
(1)
Where a company incorporated outside Hong Kong which has been carrying on
business in Hong Kong ceases to carry on business in Hong Kong, it may be wound up
as an unregistered company under this Part, notwithstanding that it has been
dissolved or otherwise ceased to exist as a company under or by virtue of the laws
of the place of its incorporation.
(Amended 14 of 2025 s. 108)
(2)
This section does not apply to a re-domiciled company.
(Added 14 of 2025 s. 108)
(Added 6 of 1984 s. 223)
[cf. 1948 c. 38 s. 400 U.K.]
328.
Contributories in winding up of unregistered company
(1)
In the event of an unregistered company being wound up, every person shall be deemed to be a contributory who is liable to pay or contribute to the payment of any debt or liability of the company, or to pay or contribute to the payment of any sum for the adjustment of the rights of the members among themselves, or to pay or contribute to the payment of the costs and expenses of winding up the company, and every contributory shall be liable to contribute to the assets of the company all sums due from him in respect of any such liability as aforesaid.
(2)
In the event of the death, bankruptcy, or insolvency, of any contributory, the provisions of this Ordinance with respect to the personal representatives of deceased contributories and to the trustees of bankrupt or insolvent contributories shall apply.
(Amended 6 of 1984 s. 224; 30 of 1999 s. 27)
[cf. 1929 c. 23 s. 339 U.K.]
329.
Power of court to stay or restrain proceeding
The provisions of this Ordinance with respect to staying and restraining actions and proceedings against a company at any time after the presentation of a petition for winding up and before the making of a winding-up order shall, in the case of an unregistered company, where the application to stay or restrain is by a creditor, extend to actions and proceedings against any contributory of the company.
[cf. 1929 c. 23 s. 340 U.K.]
330.
Actions stayed on winding-up order
Where an order has been made for winding up an unregistered company, no action or proceeding shall be proceeded with or commenced against any contributory of the company in respect of any debt of the company, except by leave of the court, and subject to such terms as the court may impose.
[cf. 1929 c. 23 s. 341 U.K.]
331.
Provisions of Part X cumulative
The provisions of this Part with respect to unregistered companies shall be in addition to
and not in restriction of any provisions hereinbefore in this Ordinance contained with
respect to winding up companies by the court, and the court or liquidator may exercise
any powers or do any act in the case of unregistered companies which might be exercised
or done by it or him in winding up companies formed and registered under the Companies
Ordinance (Cap. 622):
(Amended 28 of 2012 ss. 912 & 920)
Provided that an unregistered company shall not, except in the event of its being wound up, be deemed to be a company under this Ordinance, and then only to the extent provided by this Part.
[cf. 1929 c. 23 s. 342 U.K.]
331A.
Saving for enactments providing for winding up under former Companies
Ordinances
Nothing in this Part shall affect the operation of any enactment which provides for
any partnership, association or company being wound up, or being wound up as a company
or as an unregistered company, under any enactment repealed by the pre-amended Ordinance.
(Added 6 of 1984 s. 225. Amended 28 of 2012 ss. 912 & 920)
[cf. 1948 c. 38 s. 405 U.K.]
Part XI
(Repealed 28 of 2012 ss. 912 & 920)
332.
(Repealed 28 of 2012 ss. 912 & 920)
333.
(Repealed 28 of 2012 ss. 912 & 920)
333AA.
(Repealed 28 of 2012 ss. 912 & 920)
333A.
(Repealed 28 of 2012 ss. 912 & 920)
333B.
(Repealed 28 of 2012 ss. 912 & 920)
333C.
(Repealed 28 of 2012 ss. 912 & 920)
334.
(Repealed 28 of 2012 ss. 912 & 920)
335.
(Repealed 28 of 2012 ss. 912 & 920)
336.
(Repealed 28 of 2012 ss. 912 & 920)
336A.
(Repealed 28 of 2012 ss. 912 & 920)
337.
(Repealed 28 of 2012 ss. 912 & 920)
337A.
(Repealed 28 of 2012 ss. 912 & 920)
337B.
(Repealed 28 of 2012 ss. 912 & 920)
338.
(Repealed 28 of 2012 ss. 912 & 920)
339.
(Repealed 28 of 2012 ss. 912 & 920)
339AA.
(Repealed 28 of 2012 ss. 912 & 920)
339A.
(Repealed 28 of 2012 ss. 912 & 920)
340.
(Repealed 28 of 2012 ss. 912 & 920)
341.
(Repealed 28 of 2012 ss. 912 & 920)
341A.
Interpretation
of Part XII
In this Part, a reference to a company incorporated outside Hong Kong does not
include a re-domiciled company.
(Added 14 of 2025 s. 109)
342.
Dating of prospectus and particulars to be contained therein
(1)
Subject to section 342A, it shall not be lawful for any person to
issue, circulate or distribute in Hong Kong any prospectus offering for subscription
or purchase shares in or debentures of a company incorporated outside Hong Kong,
whether the company has or has not established a place of business in Hong Kong
unless the prospectus is dated (which date shall, unless the contrary is proved, be
taken as the date of publication of the prospectus) and—
(Amended 86 of 1992 s. 12; 30 of 2004 s. 2)
(a)
contains particulars with respect to the following matters—
(i)
the instrument constituting or defining the constitution of the
company;
(ii)
the enactments, or provisions having the force of an enactment, by or
under which the incorporation of the company was effected;
(iii)
an address in Hong Kong where the said instrument, enactments or
provisions, or copies thereof, and if the same are in a language other than
English or Chinese a translation thereof in English or Chinese certified in
the prescribed manner, can be inspected;
(Amended 83 of 1995 s. 19)
(iv)
the date on which and the country in which the company was
incorporated;
(v)
whether the company has established a place of business in Hong Kong,
and, if so, the address of its principal office in Hong Kong;
(b)
subject to the provisions of this section, is either in the English language
and contains a Chinese translation or in the Chinese language and contains an
English translation, and states the matters specified in Part I of the
Third Schedule and sets out the reports specified in Part II of
that Schedule, subject always to the provisions contained in Part III
of that Schedule:
(Amended 83 of 1995 s. 19)
Provided that the provisions of
paragraph (a)(i), (ii) and (iii) shall not apply in the case of a
prospectus issued more than 2 years after the date at which the company is entitled
to commence business, and, in the application of Part I of the Third
Schedule for the purposes of this subsection, paragraph 5
thereof shall have effect with the substitution, for the reference to the articles,
of a reference to the constitution of the company.
(Amended 6 of 1984 s. 259)
(2)
Any condition requiring or binding an applicant for shares or debentures to waive compliance with any requirement imposed by virtue of subsection (1)(a) or (b), or purporting to affect him with notice of any contract, document or matter not specifically referred to in the prospectus, shall be void.
(2A)
Every prospectus to which subsection (1) applies must contain a statement specified in Part 2 of the Eighteenth Schedule.
(Added 30 of 2004 s. 2)
(3)
Subject to section 342A, it shall not be lawful for any person to issue to any person in Hong Kong a form of application for shares in or debentures of such a company as is mentioned in subsection (1) unless the form is issued with a prospectus which complies with this Part and the issue whereof in Hong Kong does not contravene the provisions of section 342B:
(Amended 6 of 1984 s. 259; 86 of 1992 s. 12)
Provided that this subsection shall not apply if it is shown that the form of application was issued—
(Amended 30 of 2004 s. 2)
(a)
in
connexion
with a bona fide invitation to a person to enter into an underwriting
agreement with respect to the shares or
debentures;
(Amended 30 of 2004 s. 2)
(b)
in relation to shares or debentures which were not offered to the public; or
(Amended 30 of 2004 s. 2)
(c)
in connexion with an offer specified in Part 1 of the Seventeenth Schedule as read with the other Parts of that Schedule.
(Added 30 of 2004 s. 2)
(4)
In the event of non-compliance with or contravention of any of the requirements
imposed by subsection (1)(a) and (b), a director or other person
responsible for the prospectus shall not incur any liability by reason of the
non-compliance or contravention, if—
(a)
as regards any matter not disclosed, he proves that he was not cognisant
thereof; or
(b)
he proves that the non-compliance or contravention arose from an honest
mistake of fact on his part; or
(c)
the non-compliance or contravention was in respect of matters which, in the
opinion of the court dealing with the case, were immaterial or were otherwise
such as ought, in the opinion of that court, having regard to all the
circumstances of the case, reasonably to be excused:
Provided that, in the event of
failure to include in a prospectus a statement with respect to the matters contained
in paragraph 19 of the Third Schedule, no director or other
person shall incur any liability in respect of the failure unless it be proved that
he had knowledge of the matters not disclosed.
(5)
This section shall not apply—
(a)
to the issue to existing members or debenture holders of a company of a prospectus or form of application relating to shares in or debentures of the company, whether an applicant for shares or debentures will or will not have the right to renounce in favour of other persons; or
(b)
to the issue of a prospectus or a form of application relating to shares or debentures which are or are to be in all respects uniform with shares or debentures previously issued and for the time being listed on a recognized stock market;
but, subject as aforesaid, this section shall apply to a prospectus or form of application whether issued on the formation of a company or subsequently.
(6)
Nothing in this section shall limit or diminish any liability which any person
may incur under—
(Amended 28 of 2012 ss. 912 & 920)
(a)
the general law;
(b)
the provisions of the pre-amended Ordinance having a continuing effect
under Schedule 11 to the Companies Ordinance (Cap. 622) or by virtue of section 23 of the Interpretation
and General Clauses Ordinance (Cap. 1);
(c)
this Ordinance apart from this section; or
(d)
(7)
It is hereby declared that the provisions of the Third Schedule applied by this section are also applied to a guarantor corporation in relation to an offer or invitation to the public to subscribe for or purchase debentures of a company incorporated outside Hong Kong.
(Added 30 of 2004 s. 2)
(8)
In subsection (7),
guarantor corporation
(提供擔保的法團
), in relation to an offer or invitation to the public to subscribe for or purchase debentures of a company incorporated outside Hong Kong, means a corporation that guarantees or agrees to guarantee—(a)
the repayment of any money received or to be received by the company in response to the offer or invitation;
(b)
any other obligations of the company under or in respect of the debentures; or
(c)
in favour of the company any amount—
(i)
to which the company is entitled; and
(ii)
receipt of which, as stated in the prospectus concerned, is intended to enable the company to wholly or partly discharge any of its obligations under or in respect of the debentures.
(Added 30 of 2004 s. 2)
(Replaced 78 of 1972 s. 18)
[cf. 1948 c. 38 s. 417 U.K.]
342A.
Exemption of certain persons and prospectuses from compliance with certain requirements
(1)
Where it is proposed to offer any shares in or debentures of a company incorporated outside Hong Kong (whether the company has or has not established a place of business in Hong Kong) to the public by a prospectus or class of prospectuses issued generally, there may, on the request of the applicant, and subject to such conditions (if any) as the Commission thinks fit, be issued by the Commission a certificate of exemption from compliance with any or all of the requirements of the relevant provisions if, having regard to the circumstances, the Commission considers that the exemption will not prejudice the interest of the investing public and compliance with any or all of those requirements—
(a)
would be irrelevant or unduly burdensome; or
(b)
is otherwise unnecessary or inappropriate.
(Replaced 30 of 2004 s. 2)
(2)
Whether or not a request referred to in subsection (1) has been made, the Commission may, by notice published in the Gazette, and subject to such conditions (if any) as the Commission thinks fit and specified in the notice, exempt—
(a)
any class of companies; or
(b)
any class of prospectuses issued by companies,
from any or all of the requirements of the relevant provisions if, having regard to the circumstances, the Commission considers that the exemption will not prejudice the interest of the investing public and compliance with any or all of those requirements, in the case of that class of companies or prospectuses, as the case may be—
(c)
would be irrelevant or unduly burdensome; or
(d)
is otherwise unnecessary or inappropriate.
(Replaced 30 of 2004 s. 2)
(3)
Where exemption from compliance with section 342(1) and (3) in relation to the requirements of the Third Schedule is granted under this section, whether by the issue of a certificate of exemption or by a notice in the Gazette, the certificate or notice, as the case may be, shall be expressed to have effect with regard to all of the requirements of the Third Schedule or to such of them as are specified in the certificate or notice, as the case may be.
(4)
In this section,
relevant provisions
(有關條文
) means any of the provisions of—(a)
section 44A(1), (2) or (6), 44B(1) or (2), 342(1), (2A), (3) or (7) or 342C(3) or (4); or
(b)
(5)
The Commission may, by order published in the Gazette, amend subsection (4).
(Added 30 of 2004 s. 2)
(6)
The Commission shall publish, by the use of the Internet, such particulars of exemptions granted under subsection (1) as it considers appropriate.
(Added 30 of 2004 s. 2. Amended 9 of 2012 s. 51)
(7)
Where the Commission proposes to issue—
(a)
a notice of exemption under subsection (2); or
(b)
an amendment order under subsection (5),
it shall publish a draft of the proposed notice or order, in such manner as it considers appropriate, for the purpose of inviting representations on the proposed notice or order by the public.
(Added 30 of 2004 s. 2)
(8)
Where the Commission issues a notice or order mentioned in subsection (7) after a draft is published under that subsection in relation to the notice or order, it shall—
(a)
publish, in such manner as it considers appropriate, an account setting out in general terms—
(i)
the representations made on the draft; and
(ii)
the response of the Commission to the representations; and
(b)
where the notice or order is issued with modifications which in the opinion of the Commission result in the notice or order being significantly different from the draft, publish, in such manner as it considers appropriate, details of the difference.
(Added 30 of 2004 s. 2)
(9)
Subsections (7) and (8) do not apply if the Commission considers, in the circumstances of the case, that—
(a)
it is unnecessary or inappropriate that such subsections should apply; or
(b)
any delay involved in complying with such subsections would not be—
(i)
in the interest of the investing public; or
(ii)
in the public interest.
(Added 30 of 2004 s. 2)
(Replaced 86 of 1992 s. 13)
342AA.
Exemption for structured products
If it is proposed to offer any shares in or debentures of a company incorporated outside Hong Kong that are structured products, the following provisions do not apply in relation to the offer—
(a)
this Part (other than this section);
(b)
the Third Schedule; and
(c)
the Seventeenth to the Twenty-second Schedules.
(Added 8 of 2011 s. 19)
342B.
Provisions as to expert’s consent, and allotment
(1)
It shall not be lawful for any person to issue, circulate or distribute in Hong Kong any prospectus offering for subscription or purchase shares in or debentures of a company incorporated outside Hong Kong, whether the company has or has not established a place of business in Hong Kong—
(Amended 6 of 1984 s. 259; 30 of 2004 s. 2)
(a)
if, where the prospectus includes a statement purporting to be made by an expert, he has not given, or has before delivery of the prospectus for registration withdrawn, his written consent to the issue of the prospectus with the statement included in the form and context in which it is included or there does not appear in the prospectus a statement that he has given and has not withdrawn his consent as aforesaid; or
(b)
if the prospectus does not have the effect, where an application is made in pursuance thereof, of rendering all persons concerned bound by all the provisions (other than penal provisions) of sections 44A (except insofar as exemption from compliance has been granted under section 342A) and 44B so far as applicable.
(Amended 86 of 1992 s. 14)
(1A)
(Repealed 30 of 2004 s. 2)
(2)
In this section the expression
expert
(專家
) includes engineer, valuer, accountant and any other person whose profession gives authority to a statement made by him, and for the purposes of this section a statement shall be deemed to be included in a prospectus if it is contained therein or in any report or memorandum appearing on the face thereof or by reference incorporated therein or issued therewith.(Added 78 of 1972 s. 18)
[cf. 1948 c. 38 s. 419 U.K.]
342C.
Registration of prospectus
(1)
No prospectus offering for subscription or purchase shares in or debentures of a company incorporated outside Hong Kong (whether the company has or has not established a place of business in Hong Kong) shall be issued, circulated or distributed in Hong Kong unless the prospectus complies with the requirements of this Ordinance and, on or before the date of its publication, circulation or distribution in Hong Kong, its registration has been authorized under this section and a copy thereof has been registered by the Registrar.
(Amended 30 of 2004 s. 2)
(2)
Every prospectus shall—
(a)
on the face of it, state that a copy has been registered as required by this section and, immediately after such statement, state that neither the Commission nor the Registrar takes any responsibility as to the contents of the prospectus or, where the prospectus is or is to be authorized for issue by a recognized exchange company pursuant to a transfer order made under section 25 of the Securities and Futures Ordinance (Cap. 571), state that neither the Commission nor the recognized exchange company nor the Registrar takes any responsibility as to the contents of the prospectus;
(Amended 30 of 2004 s. 2)
(b)
on the face of it, specify or refer to statements included in the prospectus which specify, any documents required by this section to be endorsed on or attached to the copy so registered; and
(c)
conform with such requirements as are prescribed by the Chief Executive in
Council and the requirements set out in subsection (7A).
(Amended 23 of 1999 s. 3; 28 of 2012 ss. 912 & 920)
(3)
An application for authorization for registration of a prospectus under this section shall be made in writing to the Commission and there shall be delivered to the Commission together with the application a copy of the prospectus proposed to be registered which has been certified by 2 members of the governing body of the company or by their agents authorized in writing as having been approved by resolution of the governing body and having endorsed thereon or attached thereto—
(a)
any consent to the issue of the prospectus required by section 342B from any person as an expert; and
(b)
in the case of a prospectus issued generally, also—
(i)
a copy of any contract required by paragraph 17 of the Third Schedule to be stated in the prospectus or, in the case of a contract not reduced into writing, a memorandum giving full particulars thereof or, if in the case of a prospectus exempted under section 342A from compliance with the requirements of section 342(1), a contract or a copy thereof or a memorandum of a contract is required by the Commission to be available for inspection in connection with the request made under section 342A(1), a copy or, as the case may be, a memorandum of that contract;
(ii)
where the prospectus offers shares in the company for sale to the public, a list of the names, addresses and descriptions of the vendor or vendors of the shares; and
(iii)
where the persons making any report required by Part II of the Third Schedule have made therein, or have, without giving the reasons, indicated therein, any such adjustments as are mentioned in paragraph 42 of that Schedule, a written statement signed by those persons setting out the adjustments and giving the reasons therefor.
(4)
The references in subsection (3)(b)(i) to the copy of a contract required thereby to be endorsed on or attached to a copy of the prospectus shall, in the case of a contract wholly or partly in a language other than English or Chinese, be taken as references to a copy of a translation of the contract in either language or a copy embodying a translation in English or Chinese of the parts not in either language, as the case may be, being a translation certified in the prescribed manner under subsection (9) to be a correct translation.
(Amended 83 of 1995 s. 20; 30 of 2004 s. 2)
(5)
The Commission may—
(a)
authorize the registration by the Registrar, of a prospectus to which this section applies and where the Commission so authorizes, the Commission shall issue a certificate—
(i)
certifying that the Commission has done so; and
(ii)
specifying the documents which are required to be endorsed on or attached to the copy of the prospectus to be registered; or
(b)
refuse to authorize such registration.
(6)
The Commission shall not authorize the registration of a prospectus which relates to an intended company.
(7)
The Registrar—
(a)
shall not register a prospectus under this section unless—
(i)
it is dated and the copy thereof to be registered has been certified in the manner required by this section;
(ii)
it is accompanied by a certificate issued under subsection (5);
(iii)
it is endorsed thereon or attached thereto all the documents specified
in the certificate granted under subsection (5);
(Amended 28 of 2012 ss. 912 & 920)
(iv)
it conforms with such requirements as are prescribed by the Chief
Executive in Council and the requirements set out in subsection (7A);
and
(Amended 23 of 1999 s. 3; 28 of 2012 ss. 912 & 920)
(v)
it is accompanied by any fee that is payable, in respect of the
registration, under a regulation made under section 26 of the
Companies Ordinance (Cap. 622); and
(Added 28 of 2012 ss. 912 & 920)
(b)
shall register a prospectus if subparagraphs (i), (ii), (iii), (iv) and (v)
of paragraph (a) are complied with in respect of that prospectus.
(Amended 28 of 2012 ss. 912 & 920)
(7A)
The following are the requirements set out for the purposes of subsections (2)(c) and (7)(a)(iv)—
(a)
any requirement that the Registrar may specify, by notice in the Gazette, in relation to font size of prospectuses for the purposes of this section;
(b)
any other requirements that the Registrar may specify for the purpose of—
(i)
ensuring that documents of the same kind are of a standard form; and
(ii)
enabling the Registrar to make copies or image records of documents and
to make and keep records of the information contained in them.
(Added 28 of 2012 ss. 912 & 920)
(7B)
For the purposes of subsection (7A)(b), the Registrar may specify
different requirements for different documents or classes of documents.
(Added 28 of 2012 ss. 912 & 920)
(8)
Any person aggrieved by the refusal to authorize the registration of a prospectus under this section may appeal to the court and the court may either dismiss the appeal or order that the registration of the prospectus be authorized by the Commission under this section.
(9)
A translation mentioned in subsection (4) shall be—
(a)
certified by the person making the translation as a correct translation; and
(b)
deemed to be certified in the prescribed manner if the person making the translation has been certified, by the appropriate person mentioned in subparagraph (i) or (ii), as a person believed by that appropriate person to be competent to translate it into the English or Chinese language, as the case may be, that is to say—
(i)
if the translation be made outside Hong Kong—
(A)
a notary public in the place where the translation is made;
(B)
such other person as may be specified by the Commission; or
(C)
such other person belonging to a class of persons specified by the Commission, by notice published in the Gazette, for the purposes of this paragraph;
(ii)
if the translation be made in Hong Kong—
(A)
a notary public in Hong Kong;
(B)
a solicitor of the High Court of Hong Kong;
(C)
such other person as may be specified by the Commission; or
(D)
such other person belonging to a class of persons specified by the Commission, by notice published in the Gazette, for the purposes of this paragraph.
(Added 30 of 2004 s. 2)
(10)
A notice published under subsection (9)(b)(i)(C) or (ii)(D) is not subsidiary legislation.
(Added 30 of 2004 s. 2)
(Replaced 86 of 1992 s. 15)
342CA.
Amendment of prospectus consisting of one document
(1)
A prospectus—
(a)
consisting of one document; and
(b)
to which the provisions of this Part are applicable,
may only be amended in accordance with the provisions of Part 2 of the Twentieth Schedule.
(2)
The provisions of Part 2 of the Twentieth Schedule may alter the operation of a provision of this Part in relation to any prospectus, or class of prospectuses, which may be amended under subsection (1).
(3)
If any company contravenes subsection (1), the company and every officer of the company who is in default shall be liable to a fine.
(4)
For the avoidance of doubt, it is hereby declared that this section and Part 2 of the Twentieth Schedule do not apply to a prospectus to which section 342CB applies.
(Added 30 of 2004 s. 2)
342CB.
Prospectus may consist of more than one document, etc.
(1)
A prospectus to which the provisions of this Part are applicable may consist of more than one document in accordance with the provisions of Part 2 of the Twenty-first Schedule.
(2)
A prospectus to which subsection (1) applies may only be amended in accordance with the provisions of Part 2 of the Twenty-first Schedule.
(3)
The provisions of Part 2 of the Twenty-first Schedule may alter the operation of a provision of this Part in relation to any prospectus, or class of prospectuses, which falls within subsection (1) or which may be amended under subsection (2).
(4)
If any company contravenes subsection (2), the company and every officer of the company who is in default shall be liable to a fine.
(Added 30 of 2004 s. 2)
342CC.
Submission of certified copies
Where any document (howsoever described), other than a prospectus, is required under this Part to be submitted to the Registrar by a company incorporated outside Hong Kong, the requirement shall be deemed to be satisfied by the submission to the Registrar of a copy of the document certified—
(a)
to be a true copy of the document; and
(b)
by—
(i)
a member of the governing body of the company;
(ii)
the company secretary of the company;
(Amended 28 of 2012 ss. 912 & 920)
(iii)
an agent of a member of the governing body or of the company secretary of the company, authorized in writing for the purpose by the member or company secretary;
(Amended 28 of 2012 ss. 912 & 920)
(iv)
a solicitor within the meaning of section 2(1) of the Legal Practitioners Ordinance (Cap. 159) or a certified public accountant within the meaning of section 2 of the Professional Accountants Ordinance (Cap. 50); or
(Amended 10 of 2005 s. 224)
(v)
a notary public within the meaning of section 2(1) of the Legal Practitioners Ordinance (Cap. 159).
(Added 30 of 2004 s. 2)
342D.
Penalty for contravention of sections 342 to 342C
Any person who is knowingly responsible for the issue, circulation or distribution of a prospectus, or for the issue of a form of application for shares or debentures, in contravention of any of the provisions of sections 342 to 342C shall be liable to a fine.
(Added 78 of 1972 s. 18. Amended 7 of 1990 s. 2)
[cf. 1948 c. 38 s. 421 U.K.]
342E.
Civil liability for misstatements in prospectus
Section 40 shall extend to every prospectus offering for subscription or purchase shares in or debentures of a company incorporated outside Hong Kong which is issued, circulated or distributed in Hong Kong, whether the company has or has not established a place of business in Hong Kong, with the substitution, for references to section 38C, of references to section 342B.
[cf. 1948 c. 38 s. 422 U.K.]
342F.
Criminal liability for misstatements in prospectus
(1)
Where a prospectus relating to shares in or debentures of a company
incorporated outside Hong Kong (whether the company has or has not established a
place of business in Hong Kong) which is issued, circulated or distributed in Hong
Kong after the
commencement#
of the Companies (Amendment) Ordinance 1992 (86 of
1992) includes any untrue statements, any person who authorized the issue,
circulation or distribution of the prospectus in Hong Kong shall be liable to
imprisonment and a fine, unless he proves either that the statement was immaterial
or that he had reasonable grounds to believe and did up to the time of the issue,
circulation or distribution of the prospectus in Hong Kong believe that the
statement was true.
(2)
A person shall not be deemed for the purposes of this section to have authorized the issue of a prospectus by reason only of his having given the consent required by section 342B to the inclusion therein of a statement purporting to be made by him as an expert.
(3)
Subsection (1) shall not apply—
(a)
to the Commission;
(b)
where the relevant prospectus is authorized by a recognized exchange company pursuant to a transfer order made under section 25 of the Securities and Futures Ordinance (Cap. 571), to the Commission or the recognized exchange company; or
(c)
where the relevant prospectus is authorized by a recognized exchange controller pursuant to a transfer order made under section 68 of that Ordinance, to the Commission or the recognized exchange controller.
(Replaced 5 of 2002 s. 407)
(Added 86 of 1992 s. 16)
Editorial Note:
#
Commencement date: 1 February
1993
— see L.N. 19 of 1993.
343.
Interpretation of provisions as to prospectuses
(1)
Where any document by which any shares in or debentures of a company incorporated outside Hong Kong are offered for sale to the public would, if the company concerned had been a company within the meaning of this Ordinance, have been deemed by virtue of section 41 to be a prospectus issued by the company, that document shall be deemed to be, for the purposes of this Part of this Ordinance, a prospectus issued by the company.
(Amended 6 of 1984 s. 259)
(2)
An offer of shares or debentures for subscription or sale to any person whose ordinary business is to buy or sell shares or debentures, whether as principal or agent, shall not be deemed an offer to the public for the purposes of this Part of this Ordinance.
(Amended 30 of 1999 s. 31)
(2A)
For the purposes of sections 342E and 342F,
untrue statement
(不真實陳述
), in relation to a prospectus, includes a material omission from the prospectus. (Added 30 of 2004 s. 2)
(2B)
For the purposes of the provisions of this Part, a statement included in a prospectus shall be deemed to be untrue if it is misleading in the form and context in which it is included.
(Added 30 of 2004 s. 2)
(3)
In this Part the expressions
shares
(股份
) and debentures
(債權證
) have the same meanings as when used in relation to a company as defined in section 2(1). (Amended 30 of 2004 s. 2; 28 of 2012 ss. 912 & 920)
(Replaced 78 of 1972 s. 18)
[cf. 1948 c. 38 s. 423 U.K.]
344.
(Repealed 12 of 1974 s. 150)
Part XIIA
(Repealed 28 of 2012 ss. 912 & 920)
344A.
(Repealed 28 of 2012 ss. 912 & 920)
(Subheading repealed 30 of 2004 s. 2)
345.
(Repealed 30 of 2004 s. 2)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
346.
(Repealed 28 of 2012 ss. 912 & 920)
346A.
(Repealed 28 of 2012 ss. 912 & 920)
346B.
(Repealed 28 of 2012 ss. 912 & 920)
347.
(Repealed 28 of 2012 ss. 912 & 920)
348.
(Repealed 28 of 2012 ss. 912 & 920)
348A.
(Repealed 28 of 2012 ss. 912 & 920)
348B.
(Repealed 28 of 2012 ss. 912 & 920)
348BA.
(Repealed 28 of 2012 ss. 912 & 920)
(Cross-heading repealed 28 of 2012 ss. 912 & 920)
348C.
(Repealed 28 of 2012 ss. 912 & 920)
348D.
(Repealed 28 of 2012 ss. 912 & 920)
349.
Penalty for false statements
If any person in any return, report, certificate, balance sheet or other document, required by or for the purposes of any of the provisions of this Ordinance, wilfully makes a statement false in any material particular, knowing it to be false, he shall be guilty of an offence and shall be liable on conviction to a fine and imprisonment:
(Amended 7 of 1990 s. 2)
Provided that nothing in this section shall affect the provisions of Part V (perjury) of the Crimes Ordinance (Cap. 200) or section 19, 20 or 21 of the Theft Ordinance (Cap. 210).
(Replaced 6 of 1984 s. 241)
[cf. 1948 c. 38 s. 438 U.K.]
349A.
(Repealed 28 of 2012 ss. 912 & 920)
350.
(Repealed 28 of 2012 ss. 912 & 920)
350A.
(Repealed 28 of 2012 ss. 912 & 920)
350B.
Injunctions
(1)
Where a person (the first-mentioned person) has, in relation to a specified corporation, engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute—
(a)
a contravention of this Ordinance;
(b)
an attempt to contravene this Ordinance;
(c)
aiding, abetting, counselling or procuring another person to contravene this Ordinance;
(d)
inducing or attempting to induce, whether by threats, promises or otherwise, another person to contravene this Ordinance;
(e)
his being in any way, directly or indirectly, knowingly concerned in, or a party to, a contravention of this Ordinance by another person; or
(Amended 28 of 2012 ss. 912 & 920)
(f)
conspiring with others to contravene this Ordinance,
(Amended 28 of 2012 ss. 912 & 920)
(g)-(h)
(Repealed 28 of 2012 ss. 912 & 920)
the court may, on the application of the Financial Secretary, or of a member or creditor of the specified corporation whose interests have been, are or would be affected by the conduct, grant an injunction, on such terms as the court considers appropriate, restraining the first-mentioned person from engaging in the conduct and, if in the opinion of the court it is desirable to do so, requiring the first-mentioned person to do any act or thing.
(2)
The power of the court to grant an injunction restraining the first-mentioned person referred to in subsection (1) from engaging in the conduct mentioned in that subsection may be exercised—
(a)
whether or not it appears to the court that he intends to engage again, or to continue to engage, in that conduct;
(b)
whether or not he has previously engaged in that conduct; and
(c)
whether or not there is an imminent danger of substantial damage to any other person if he engages in that conduct.
(3)
Where a person (the first-mentioned person) has, in relation to a specified corporation, refused or failed, is refusing or failing, or is proposing to refuse or fail, to do an act or thing that the first-mentioned person is required by this Ordinance to do, the court may, on the application of the Financial Secretary, or of a member or creditor of the specified corporation whose interests have been, are or would be affected by the refusal or failure to do that act or thing, grant an injunction, on such terms as the court considers appropriate, requiring the first-mentioned person to do that act or thing.
(4)
The power of the court to grant an injunction requiring the first-mentioned person referred to in subsection (1) or (3) to do an act or thing may be exercised—
(a)
whether or not it appears to the court that he intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing;
(b)
whether or not he has previously refused or failed to do that act or thing; and
(c)
whether or not there is an imminent danger of substantial damage to any other person if he refuses or fails to do that act or thing.
(5)
Where the court considers appropriate, it may grant an interim injunction on such terms and conditions as it thinks fit pending determination of an application under subsection (1) or (3).
(6)
The court may discharge or vary an injunction granted under subsection (1), (3) or (5).
(7)
The court may, either in addition to or in substitution for the grant of the injunction under subsection (1) or (3), order the first-mentioned person referred to in subsection (1) or (3) to pay damages to any other person.
(8)
For the avoidance of doubt, the damages that may be ordered by the court under subsection (7) does not entitle a person to recover by way of damages any loss that is solely reflective of the loss suffered by a specified corporation which only the specified corporation is entitled to recover under the common law.
(Added 30 of 2004 s. 2)
351.
Provision for punishment and offence
(1)
The Twelfth Schedule has effect with respect to the way in which offences under this Ordinance are punishable on conviction.
(Replaced 7 of 1990 s. 3)
(1A)
As respects an offence under a provision of this Ordinance set out in column 1 of the Twelfth Schedule—
(a)
column 2 gives a description of the general nature of the offence only and shall not be used to interpret the provision;
(b)
column 3 shows whether the offence is punishable on conviction on indictment or on summary conviction;
(c)
column 4 shows, subject to paragraph (d), the maximum punishment by way of fine or imprisonment under this Ordinance which may be imposed on a person convicted of the offence;
(d)
column 5 shows in the case of an offence for which there is an entry in that column that a person convicted of the offence after continued default, refusal or contravention is liable to a default fine: that is to say, he is liable, in addition to the punishment that may be imposed under paragraph (c), to the fine set out in that column for each day on which the default, refusal or contravention is continued.
(Replaced 7 of 1990 s. 3)
(1B)
(Repealed 7 of 1990 s. 3)
(2)
For the purpose of any provision in this Ordinance which provides that an officer of a company who is in default shall be liable to a fine or penalty,
officer who is in default
(失責高級人員
) means any officer of the company, or any shadow director of the company, who knowingly and wilfully authorizes or permits the default, refusal or contravention mentioned in such provision.
(Amended 28 of 2003 s. 114)
(Amended 6 of 1984 s. 244)
351A.
Limitation on commencement of proceedings
(1)
Notwithstanding section 26 of the Magistrates Ordinance (Cap. 227), an information or complaint relating to an offence under this Ordinance may be tried if it is laid or made, as the case may be, at any time within 3 years after the commission of the offence and within 12 months after the date on which evidence sufficient in the opinion of the Secretary for Justice to justify the proceedings comes to his knowledge.
(2)
For the purposes of this section, a certificate of the Secretary for Justice as to the date on which evidence sufficient to justify proceedings came to his knowledge shall be conclusive evidence.
(3)
This section shall not apply in relation to an offence committed before the
coming into
operation#
of the Companies (Amendment) Ordinance 1972 (78 of
1982).
(Added 78 of 1972 s. 20. Amended L.N. 362 of 1997)
Editorial Note:
#
Operation date: 1 March 1973.
351B.
(Repealed 28 of 2012 ss. 912 & 920)
352.
Application of fines
The court or magistrate imposing any fine under this Ordinance may direct that the whole or any part thereof shall be applied in or towards payment of the costs of the proceedings, or in or towards rewarding the person on whose information or at whose suit the fine is recovered, and subject to any such direction all fines under this Ordinance shall, notwithstanding anything in any other Ordinance, be paid into the general revenue.
(Amended 6 of 1984 s. 246)
[cf. 1929 c. 23 s. 367 U.K.]
353.
(Repealed 6 of 1984 s. 247)
354.
Saving as to private prosecutors
Nothing in this Ordinance relating to the institution of criminal proceedings by the Secretary for Justice shall be taken to preclude any person from instituting or carrying on any such proceedings.
(Amended L.N. 362 of 1997)
[cf. 1929 c. 23 s. 368 U.K.]
355.
Saving for privileged communications
Where proceedings are instituted under this Ordinance against any person by the Secretary for Justice nothing in this Ordinance shall be taken to require any person who has acted as solicitor for the defendant to disclose any privileged communication made to him in that capacity.
(Amended L.N. 362 of 1997)
[cf. 1929 c. 23 s. 369 U.K.]
356.
(Repealed 28 of 2012 ss. 912 & 920)
357.
(Repealed 28 of 2012 ss. 912 & 920)
358.
(Repealed 28 of 2012 ss. 912 & 920)
359.
Power to enforce orders
Orders made by the court under this Ordinance may be enforced in the same manner as orders made in an action pending therein.
(Amended 6 of 1984 s. 249)
[cf. 1929 c. 23 s. 373 U.K.]
359A.
Power to make regulations
(1)
The Chief Executive in Council may make regulations in respect of any matter required or permitted to be prescribed by the Chief Executive in Council under this Ordinance.
(Amended 23 of 1999 s. 3; 27 of 2001 s. 7)
(2)-(6)
(Repealed 28 of 2012 ss. 912 & 920)
(Added 6 of 1984 s. 250)
360.
Power to amend
Schedules
(Amended 28 of 2012 ss. 912 & 920)
(1)-(2)
(Repealed 28 of 2012 ss. 912 & 920)
(3)
(Repealed 3 of 1997 s. 54)
(3A)
(Repealed 28 of 2012 ss. 912 & 920)
(4)-(5)
(Repealed 28 of 2012 ss. 912 & 920)
(6)
The Commission may, by order published in the Gazette, amend the Third,
Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-first or Twenty-second
Schedule.
(Added 30 of 2004 s. 2)
(7)
Where the Commission proposes to make an order under subsection (6), it shall
publish a draft of the proposed order, in such manner as it considers appropriate,
for the purpose of inviting representations on the proposed order by the
public.
(Added 30 of 2004 s. 2)
(8)
Where the Commission makes any order under subsection (6) after a draft is
published under subsection (7) in relation to the order, it shall—
(a)
publish, in such manner as it considers appropriate, an account setting out
in general terms—
(i)
the representations made on the draft; and
(ii)
the response of the Commission to the representations; and
(b)
where the order is made with modifications which in the opinion of the
Commission result in the order being significantly different from the draft,
publish, in such manner as it considers appropriate, details of the
difference.
(Added 30 of 2004 s. 2)
(9)
Subsections (7) and (8) do not apply if the Commission considers, in the
circumstances of the case, that—
(a)
it is inappropriate or unnecessary that such subsections should apply;
or
(b)
any delay involved in complying with such subsections would not be—
(i)
in the interest of the investing public; or
(ii)
in the public interest.
(Added 30 of 2004 s. 2)
(10)
(Repealed 28 of 2012 ss. 912 & 920)
(Replaced 6 of 1984 s. 250)
[cf. 1948 c. 38 s. 454 U.K.]
Part XIIIA
Prevention of Evasion of the Societies Ordinance
(Part XIIIA added 6 of 1984 s. 251)
(Format changes—E.R. 1 of 2014)
360A.
(Repealed 30 of 1999 s. 34)
360B.
Power of Chief Executive in Council to order Registrar to refuse registration if satisfied that a company is being formed to evade the Societies Ordinance
(1)
If the Registrar suspects that the relevant documents relate to a company which
is being formed with the object of circumventing—
(Amended 28 of 2012 ss. 912 & 920)
(a)
the refusal of the Societies Officer to register or to exempt from
registration a society under the Societies Ordinance (Cap. 151); or
(b)
the cancellation by the Societies Officer of the registration or exemption
from registration of a society registered or exempted under the Societies
Ordinance (Cap. 151); or
(c)
or for the purpose of otherwise evading or defeating the provisions of the
Societies Ordinance (Cap. 151) or anything done
thereunder, it shall be lawful for him to withhold registration of the same pending
the receipt of the instructions of the Chief Executive in Council with respect
thereto. In the event of the Chief Executive in Council being satisfied that the
company is being formed with any such object or for any such purpose, he may order
the Registrar to refuse registration of the relevant documents. Despite section
15 of the pre-amended Ordinance or section 67 of the Companies
Ordinance (Cap. 622), the Registrar must refuse
registration of the relevant documents on receipt of the order.
(2)
In this section—
relevant documents (有關文件) means—
(a)
the memorandum of association and articles of association of the company delivered to the Registrar in accordance with section 15 of the pre-amended Ordinance; or
(b)
the incorporation form and articles of association of the company delivered to the
Registrar in accordance with section 67 of the Companies Ordinance
(Cap. 622).
(Added 28 of 2012 ss. 912 & 920)
360BA.
Power of Chief
Executive in Council to order Registrar to refuse registration if satisfied that
application to re-domicile is made to evade Societies
Ordinance
(1)
If the Registrar suspects that an application under section 820B(1)
of the Companies Ordinance (Cap. 622) (Cap. 622) is made—
(a)
with the object of circumventing—
(i)
(ii)
the cancellation by the Societies Officer of the registration or
exemption from registration of a society registered or exempted under Cap. 151; or
(b)
the Registrar may withhold the registration concerned under section
820C(1) of Cap. 622 pending the receipt of
the instructions of the Chief Executive in Council given under subsection
(2).
(2)
If the Chief Executive in Council is satisfied that the application is
made—
(a)
with any object set out in subsection (1)(a); or
(b)
for any purpose mentioned in subsection (1)(b),
the Chief Executive in Council may order the Registrar to refuse to register
the company under section 820C(1) of Cap.
622.
(Added 14 of 2025 s. 110)
360C.
Power of the Chief Executive in Council to order company engaging in undesirable
activities to be struck off
(1)
If the Chief Executive in Council is satisfied that a company formed and
registered under the Companies Ordinance (Cap. 622) or
any
former
Companies Ordinance, or a re-domiciled
company,
would—
(Amended 6 of 2024 s. 127; 14 of 2025 s. 111)
(a)
if it were a society to which the Societies Ordinance (Cap. 151) applied—
(i)
be liable to have its registration or exemption from registration
cancelled under section 5D of that Ordinance; or
(ii)
be liable to have its operation or continued operation prohibited by
the Secretary for Security under section 8 of that Ordinance;
or
(b)
if it were an organization to which section
60(1)
or (2) of the Safeguarding National Security Ordinance (6
of 2024) applied—be liable to have its operation or continued
operation in Hong Kong prohibited by the Secretary for Security under that
section,
the
Chief Executive in Council may order the Registrar of Companies to
strike such company off the Companies Register.
(2)
The Registrar shall thereupon strike the name of the company off the
register, and shall publish notice thereof in the Gazette, and on such
publication the company shall be dissolved:
Provided that the liability,
if any, of every director, officer and member of the company shall continue and
may be enforced as if the company had not been dissolved.
(2A)
A company dissolved under subsection (2)—
(a)
in the case of subsection (1)(a)(ii)—is, for all purposes, to be
regarded as an unlawful society; or
(b)
in the case of subsection (1)(b)—is, for all purposes, to be
regarded as a prohibited organization.
(Added 6 of 2024 s. 127)
(2B)
If a person is, because of the operation of this section, required to act as a
member of an unlawful society or prohibited organization to deal with matters
arising from the winding up or dissolution of the society or organization, the
person does not commit any offence under the Societies Ordinance (Cap. 151) or the Safeguarding National Security
Ordinance (6 of 2024) only because the person so acts.
(Added 6 of 2024 s. 127)
(3)
A copy of such notice shall be sent to such company, and may either be sent by
post or be delivered by hand addressed to the company at its registered office, or
if no office has been registered, addressed to the care of some director or officer
of the company, or if there is no director or officer of the company whose name and
address are known to the Registrar, the notice may be sent or delivered to each of
the founder members, addressed to the founder member at the address mentioned in the
memorandum of association or incorporation form, as the case may be, but if none of
such addresses is available or if for any other reason the Registrar considers it
unlikely that any notice sent in pursuance of this subsection will come to the
knowledge of the addressee, it shall be sufficient compliance with this subsection
that notice in the Gazette shall have been published in accordance with subsection (2).
(Amended 30 of 2004 s. 2)
(3A)
Subsection (3) does not apply to a re-domiciled company.
(Added 14 of 2025 s. 111)
(3B)
For a re-domiciled company, a copy of the notice published under subsection (2)
is to be sent by post or delivered by hand to—
(a)
if the company has a registered office—the company at its registered
office, addressed to the company; or
(b)
if the company does not have a registered office—
(i)
if the name and address of any director or officer of the company are
known to the Registrar—the company, addressed to the care of the director or
officer of the company whose name and address are known to the Registrar;
or
(ii)
if there is no director or officer of the company whose name and
address are known to the Registrar—each of the members of the company,
addressed to the member at the address known to the Registrar.
(Added 14 of 2025 s. 111)
(3C)
It is sufficient compliance with subsection (3B) that the notice has been
published in the Gazette in accordance with subsection (2) if—
(a)
none of the addresses mentioned in subsection (3B) is available;
or
(b)
for any other reason, the Registrar considers it unlikely that any notice
sent in accordance with subsection (3B) will come to the knowledge of the
addressee.
(Added 14 of 2025 s. 111)
(4)
In this section—
prohibited organization
(受禁組織
) means a prohibited organization within the
meaning of Division 2 of Part 6 of the Safeguarding National Security
Ordinance (6 of 2024);unlawful society
(非法社團
) means an unlawful society within the meaning of the Societies
Ordinance (Cap. 151). (Added 6 of 2024 s. 127)
(Amended 28 of 2012 ss. 912 & 920)
360D.
(Repealed 28 of 2012 ss. 912 & 920)
360E.
Vesting and disposal of property of company struck off
(1)
Where a company is struck off the register and dissolved under section 360C, all property and rights whatsoever vested in or held on trust for the company immediately before its dissolution (including leasehold property but not including property held by the company on trust for any other person) shall vest in the Official Receiver.
(2)
The Official Receiver shall with all due dispatch wind up the affairs of the company, and after realizing the said property and rights shall apply the sum so realized—
First, in paying all fees, costs, charges and expenses properly incurred in
preserving, realizing or getting in the said property and rights.
Next, in paying all necessary fees, costs, charges and expenses incurred by the Official Receiver in and upon the winding up of the affairs of the company.
Next, in paying to the Government a sum equal to the fees which the Official Receiver could lawfully have charged if he had acted as liquidator of the company in a winding up thereof by the court.
Next, in paying the creditors of the company who shall have proved their debts within such time as shall have been limited by him not being less than 1 month from the date of publication of notice thereof in the Gazette and 2 or more local newspapers of which at least 1 shall be a Chinese newspaper, according to their respective rankings and priorities as if the company had been a company being wound up by the court by virtue of a winding up order dated the day of its dissolution under section 360C.
Next, in paying or distributing the surplus to or among the persons entitled thereto under the company’s articles.
Next, in paying all necessary fees, costs, charges and expenses incurred by the Official Receiver in and upon the winding up of the affairs of the company.
Next, in paying to the Government a sum equal to the fees which the Official Receiver could lawfully have charged if he had acted as liquidator of the company in a winding up thereof by the court.
Next, in paying the creditors of the company who shall have proved their debts within such time as shall have been limited by him not being less than 1 month from the date of publication of notice thereof in the Gazette and 2 or more local newspapers of which at least 1 shall be a Chinese newspaper, according to their respective rankings and priorities as if the company had been a company being wound up by the court by virtue of a winding up order dated the day of its dissolution under section 360C.
Next, in paying or distributing the surplus to or among the persons entitled thereto under the company’s articles.
(Amended 28 of 2012 ss. 912 & 920)
360F.
Provisions applicable to winding up of company struck off under section 360C
The provisions contained in sections 360G to 360M shall apply to the winding up by the Official Receiver of the affairs of a company struck off the register of companies under section 360C.
360G.
Certain sections to apply
Sections
170,
170A, 171, 172, 173, 174,
190, 190A, 211,
216,
263,
264, 264A, 264B, 265, 265A,
265B, 265C, 265D, 265E, 266,
266A, 266B, 266C, 266D, 267,
267A, 268, 269, 270, 271,
272, 273, 274, 275, 276,
277, 281, 282, 283, 285,
286B, 286C and 286D shall apply
mutatis mutandis as if on the day of the dissolution of the company under section
360C an order had been made for the winding up of the company by the court and
as if the Official Receiver were the liquidator thereof.
(Amended 14 of 2016 s. 115; 6 of 2024 s. 128)
360H.
Calls on contributories
The Official Receiver shall have the same rights and powers to settle a list of the contributories of the company, to make and enforce calls on the contributories on the list so settled, and to compromise calls and liabilities to calls, as if the company were being wound up by the court and he were the liquidator thereof.
360I.
Continuation of pending legal proceedings
Where any legal proceeding instituted by or against a company is pending at the date of its dissolution, such proceeding may be continued by or against the Official Receiver as representing such company.
360J.
Obstruction of Official Receiver
Every person who—
(a)
without lawful excuse refuses to hand over to the Official Receiver or any person authorized by him in that behalf any key, safe, document, account book, or other thing of any nature whatsoever belonging to the company of which he may have the custody or possession; or
(b)
without lawful excuse in any way obstructs the Official Receiver or any person authorized by him in that behalf in taking possession of any premises occupied by the company prior to its dissolution,
shall be guilty of an offence and shall be liable on conviction to a fine and imprisonment.
(Amended 7 of 1990 s. 2)
360K.
Control of Official Receiver
(1)
Subject to the provisions of this Part, the Official Receiver shall conform to any directions which may be given to him by the Chief Executive for the purposes of this Part.
(Amended 23 of 1999 s. 3)
(2)
The Official Receiver shall with the permission of the Chief Executive be entitled to apply by originating summons to the court for directions on any matter arising out of the winding up.
(Amended 23 of 1999 s. 3)
(3)
Any such application shall be heard and determined in such manner as the court may direct, and it shall be lawful for the court to hear such parties and persons as it may think fit.
(4)
Without prejudice to the generality of subsection (3) the court may if it sees fit direct that the proceedings or any part thereof be heard in camera.
(5)
If any person is aggrieved by any act or decision of the Official Receiver, that person may apply by originating summons to the court, and the court may confirm, reverse or modify the act or decision complained of, and make such order in the premises as it thinks just.
360L.
Audit of Official Receiver’s accounts
(1)
The accounts of the Official Receiver with respect to the winding up shall be audited in such manner as the Chief Executive may direct, and the cost of such audit shall be charged as an expense of the winding up.
(Amended 23 of 1999 s. 3)
(2)
In the event of the accounts being audited by a public servant there shall be paid to the Government in respect of such audit a sum equal to the fee which would have been chargeable on the audit of the Official Receiver’s accounts if the winding up had been a winding up by the court.
360M.
Protection of Official Receiver etc.
(1)
A person to whom this section applies is not personally liable for an act done
or omitted to be done by the person in good faith in respect of the winding up of
any company under this Part in—
(a)
performing or purportedly performing a function under this Part;
or
(b)
exercising or purportedly exercising a power under this Part.
(2)
The persons to whom this section applies are—
(a)
the Official Receiver; and
(b)
a public servant.
(Replaced 6 of 2024 s. 129)
360N.
Non-Hong Kong
Companies
(Replaced 28 of 2012 ss. 912 & 920)
(1)
If the Chief Executive in Council is satisfied that a non-Hong Kong company
would—
(Amended 6 of 2024 s. 130)
(a)
if it were a society to which the Societies Ordinance (Cap. 151) applied—
(i)
be liable to have its registration or exemption from registration
cancelled under section 5D of that Ordinance; or
(ii)
be liable to have its operation or continued operation prohibited by
the Secretary for Security under section 8 of that Ordinance;
or
(b)
if it were an organization to which section
60(1)
or (2) of the Safeguarding National Security Ordinance (6 of 2024) applied—be liable to have its operation or
continued operation in Hong Kong prohibited by the Secretary for Security under
that section,
the Chief Executive in Council may order the company to cease to carry on
business within Hong Kong, and the company must immediately cease to carry on
business within Hong Kong:
(Amended 6 of 2024 s. 130)
Provided that a person shall not be
liable to prosecution for an offence against the Societies Ordinance (Cap. 151) by reason only that he is a member of a
company which has been ordered to cease to carry on business under this
section.
(2)
A company which has been ordered to cease to carry on business within Hong Kong
under subsection (1)—
(a)
in the case of subsection (1)(a)(ii)—is, for all purposes, to be
regarded as an unlawful society; or
(b)
in the case of subsection (1)(b)—is, for all purposes, to be
regarded as a prohibited organization.
(Added 6 of 2024 s. 130)
(3)
If a person is, because of the operation of this section, required to act as a
member of an unlawful society or prohibited organization to deal with matters
arising from the winding up or dissolution of the society or organization, the
person does not commit any offence under the Societies Ordinance (Cap. 151) or the Safeguarding National Security
Ordinance (6 of 2024) only because the person so acts.
(Added 6 of 2024 s. 130)
(4)
In this section—
prohibited organization
(受禁組織
) means a prohibited organization within the
meaning of Division 2 of Part 6 of the Safeguarding National Security
Ordinance (6 of 2024);unlawful society
(非法社團
) means an unlawful society within the meaning of the Societies
Ordinance (Cap. 151). (Added 6 of 2024 s. 130)
Part XIV
(Repealed 28 of 2012 ss. 912 & 920)
361.
(Repealed 28 of 2012 ss. 912 & 920)
362.
(Repealed 28 of 2012 ss. 912 & 920)
363.
(Repealed 6 of 1984 s. 252)
364.
(Repealed 28 of 2012 ss. 912 & 920)
365.
(Repealed 28 of 2012 ss. 912 & 920)
366.
(Repealed 28 of 2012 ss. 912 & 920)
367.
(Repealed 28 of 2012 ss. 912 & 920)
368.
Transitional and saving provisions relating to Companies (Winding Up and Miscellaneous Provisions) (Amendment) Ordinance 2016 (14 of 2016)
The transitional and saving provisions as set out in Schedule 26 are to have effect.
First
Schedule
(Repealed 28 of 2012 ss. 912 & 920)
Second
Schedule
(Repealed 28 of 2012 ss. 912 & 920)
Third
Schedule
[ss. 2B, 38, 38A, 38AA, 38D, 42, 342, 342A, 342AA, 342C & 360 & 2nd,
4th,
20th
& 21st Schs.]
(Amended 12 of 2005 s. 15; 8 of 2011 s. 20)
Matters to be Specified in Prospectus
and Reports to be set out
therein
(Third
Schedule replaced 78 of 1972 s. 21)
(Format changes—E.R. 1 of
2014)
Part
I
Matters to be Specified
1.
The general nature of the business of the company, and if
the company carries on 2 or more activities which are
material having regard to profits or losses, assets employed
or any other factor, information as to the relative
importance of each such activity.
2.
The authorized share capital or maximum number of shares
issuable under the articles and the description and nominal
value (if any) of the shares into which the authorized share
capital is divided, the amount of share capital issued or
agreed to be issued, and the amount paid up on the shares
which have been issued.
(Amended 28 of 2012 ss. 912 & 920)
3.
Sufficient particulars and information to enable a
reasonable person to form as a result thereof a valid and
justifiable opinion of the shares or debentures and the
financial condition and profitability of the company at the
time of the issue of the prospectus, taking into account the
nature of the shares or debentures being offered and the
nature of the company, and the nature of the persons likely
to consider acquiring them.
(Amended 30 of 2004 s. 2)
4.
The number of founders or management or deferred shares, if
any, and the nature and extent of the interest of the
holders in the property and profits of the
company.
5.
The number of shares, if any, fixed by the articles as the
qualification of a director, and any provision in the
articles as to the remuneration of the directors.
6.
The names, descriptions and addresses of the directors or
proposed directors.
7.
Where shares are offered to the public for subscription,
particulars as to—
(a)
the minimum amount which, in the opinion of the
directors, must be raised by the issue of those
shares in order to provide the sums, or, if any part
thereof is to be defrayed in any other manner, the
balance of the sums, required to be provided in
respect of each of the following matters—
(i)
the purchase price of any property
purchased or to be purchased which is to be
defrayed in whole or in part out of the proceeds
of the
issue;
(ii)
any preliminary expenses payable by the
company, and any commission so payable to any
person in consideration of his agreeing to
subscribe for, or of his procuring or agreeing to
procure subscriptions for, any shares in the
company;
(iii)
the repayment of any moneys borrowed by the
company in respect of any of the foregoing
matters;
(iv)
working capital;
but, so long as the general purpose of the issue
is clearly stated and the issue is fully
underwritten, this sub-paragraph need not be
complied with, and
(b)
the amounts to be provided in respect of the
matters aforesaid otherwise than out of the proceeds
of the issue and the sources out of which those
amounts are to be provided.
8.
The date and time of the opening of the subscription
lists.
9.
The amount payable on application and allotment on each
share, and, in the case of a second or subsequent offer of
shares, the amount offered for subscription on each previous
allotment made within the 2 preceding years, the amount
actually allotted, and the amount, if any, paid on the
shares so allotted.
10.
The number, description and amount of any shares in or
debentures of the company which any person has, or is
entitled to be given, an option to subscribe for, together
with the following particulars of the option, that is to
say—
(a)
the period during which it is
exercisable;
(b)
the price to be paid for shares or debentures
subscribed for under
it;
(c)
the consideration (if any) given or to be given for
it or for the right to it;
(d)
the names and addresses of the persons to whom it
or the right to it was given or, if given to
existing shareholders or debenture holders as such,
the relevant shares or debentures.
11.
The number and amount of shares and debentures which within
the 2 preceding years have been issued, or agreed to be
issued, as fully or partly paid up otherwise than in cash,
and in the latter case the extent to which they are so paid
up, and in either case the consideration for which those
shares or debentures have been issued or are proposed or
intended to be issued.
12.
(1)
As respects any property to which this paragraph
applies—
(a)
the names and addresses of the
vendors;
(b)
the amount payable in cash, shares or
debentures to the vendor and, where there is more
than 1 separate vendor, or the company is a
sub-purchaser, the amount so payable to each
vendor;
(c)
short particulars of any transaction
relating to the property completed within the 2
preceding years in which any vendor of the
property to the company or any person who is, or
was at the time of the transaction, a promoter or
a director or proposed director of the company had
any interest direct or
indirect.
(2)
The property to which this paragraph applies is
property purchased or acquired by the company or
proposed so to be purchased or acquired, which is to
be paid for wholly or partly out of the proceeds of
the issue offered for subscription by the prospectus
or the purchase or acquisition of which has not been
completed at the date of the issue of the
prospectus, other than
property—
(a)
the contract for the purchase or
acquisition whereof was entered into in the
ordinary course of the company’s business, the
contract not being made in contemplation of the
issue nor the issue in consequence of the
contract; or
(b)
as respects which the amount of the
purchase money is not material.
13.
The amount, if any, paid or payable as purchase money in
cash, shares or debentures for any property to which
paragraph 12 applies, specifying the
amount, if any,
payable for goodwill.
14.
The amount, if any, paid within the 2 preceding years, or
payable, as commission (but not including commission to
sub-underwriters) for subscribing or agreeing to subscribe,
or procuring or agreeing to procure subscriptions, for any
shares in or debentures of the company, or the rate of any
such commission.
15.
The amount or estimated amount of preliminary expenses and
the persons by whom any of those expenses have been paid or
are payable, and the amount or estimated amount of the
expenses of the issue and the persons by whom any of those
expenses have been paid or are
payable.
16.
Any amount or benefit paid or given within the 2 preceding
years or intended to be paid or given to any promoter, and
the consideration for the payment or the giving of the
benefit.
17.
The dates of, parties to and general nature of every
material contract, not being a contract entered into in the
ordinary course of the business carried on or intended to be
carried on by the company or a contract entered into more
than 2 years before the date of issue of the prospectus; and
a statement that a copy of every such material contract has
been delivered to the Registrar for registration.
18.
The names and addresses of the auditors, if any, of the
company, and, if the prospectus invites the public to
subscribe for debentures which are stated in the prospectus
to be guaranteed, the names and addresses of the auditors,
if any, of the guarantor corporation.
19.
Full particulars of the nature and extent of the interest,
if any, of every director in the promotion of, or in the
property proposed to be acquired by, the company, or, where
the interest of such a director consists in being a partner
in a firm, the nature and extent of the interest of the
firm, with a statement of all sums paid or agreed to be paid
to him or to the firm in cash or shares or otherwise by any
person either to induce him to become, or to qualify him as,
a director, or otherwise for services rendered by him or by
the firm in connexion with the promotion or formation of the
company.
20.
If the prospectus invites the public to subscribe for
shares in the company and the share capital of the company
is divided into different classes of shares, the right of
voting at meetings of the company conferred by, and the
rights in respect of capital and dividends attached to, the
several classes of shares
respectively.
21.
In the case of a company which has been carrying on
business, or of a business which has been carried on for
less than 3 years, the length of time during which the
business of the company or the business to be acquired, as
the case may be, has been carried on.
22.
The contents or a sufficient summary of the contents of the
articles of the company with regard to any borrowing powers exercisable by the
directors and the manner of variation of such
powers.
23.
Particulars of any bank overdrafts or other similar
indebtedness of the company and its subsidiaries, if any, as
at the latest practicable date or, if there are no bank
overdrafts or other similar indebtedness, a statement to
that effect.
24.
Particulars of any hire purchase commitments, guarantees or
other material contingent liabilities of the company and its
subsidiaries, if any, or, if there are none such, a
statement to that effect.
25.
Particulars of the authorized debentures of the company and
its subsidiaries, if any, the amount issued and outstanding
or agreed to be issued, or if no debentures are outstanding
a statement to that effect.
26.
If the prospectus invites the public to subscribe for
debentures of the company—
(a)
the rights conferred upon the holders thereof,
including rights in respect of interest and
redemption, and particulars of the security, if any,
therefor;
(b)
the designation of such debentures which shall
incorporate—
(i)
in the case of debentures not secured by a
charge on assets of the company—
(A)
the word “unsecured” if the designation
is in English;
(B)
the expression in Chinese “無保證” if the
designation is in Chinese; or
(C)
both such word and expression
respectively if the designation is both in English
and Chinese; and
(ii)
in the case of debentures secured to a
substantial extent by a specific mortgage or
charge—
(A)
the word “mortgage” if the designation is
in English;
(B)
the expression in Chinese “按揭” if the
designation is in Chinese; or
(C)
both such word and expression
respectively if the designation is both in English
and Chinese;
(Replaced 3 of 1997 s. 57)
(c)
particulars of any guarantee subsisting in respect
of the debentures, including the name and address of
the guarantor, and the designation or any
description of the debentures shall only incorporate
the word “guaranteed” or the expression in Chinese
“獲擔保” if they are guaranteed to a substantial extent
by a legally enforceable guarantee.
(Replaced 3 of 1997 s. 57)
27.
A statement as to the gross trading income or sales
turnover (as may be appropriate) of the company during each
of the 3 financial years immediately preceding the issue of
the prospectus including an explanation of the method used
for the computation of such income or turnover, and a
reasonable break-down between the more important trading
activities; but a bank, discount house or other company
whose business is in the opinion of the directors of a
character that such a statement is either not practicable or
not of value may instead include an explanation of the
absence of such a statement.
(Amended 86 of 1992 s. 18; 30 of 2004 s. 2)
28.
If the prospectus offers shares in the company for sale to
the public—
(a)
the names, addresses and descriptions of the vendor
or vendors of the shares, or, if there are more than
10 vendors, the like particulars of the 10 principal
vendors and a statement of the number of other
vendors;
(b)
particulars of any beneficial interest possessed by
any director of the company in any shares so offered
for sale.
29.
The
name,
the date and place of incorporation (and if the company has,
after its incorporation, changed its place of domicile on
one or more occasions, its place of domicile on each
occasion and the date on which that place became its place
of domicile), the general nature of the business, the issued
capital and the proportion of the issued capital held or
intended to be held, of every company, whether public or
private (if applicable), the whole of the
capital of which or a substantial proportion thereof is held
or intended to be held, or whose profits or assets make or
will make a material contribution to the figures in the
auditors’ report or to the next financial statements of the
company.
(Amended 28 of 2012 ss. 912 & 920; 14 of 2025 s. 112)
30.
A statement of the persons holding or beneficially
interested in any substantial part of the share capital of
the company and the amounts of the holdings in
question.
Part
II
Reports to be set out
31.
(1)
A report by the auditors of the company with respect
to—
(a)
profits and losses and assets and
liabilities of the company in accordance with
sub-paragraph (2) or (3), as the case required;
and
(b)
the rates of the dividends, if any, paid by
the company in respect of each class of shares in
the company in respect of each of the 3 financial
years immediately preceding the issue of the
prospectus, giving particulars of each such class
of shares on which such dividends have been paid
and particulars of the cases in which no dividends
have been paid in respect of any class of shares
in respect of any of those years,
and, if no financial statements have been
prepared in respect of any part of the period of 3
years ending on a date 3 months before the issue of
the prospectus, containing a statement of that fact.
(2)
If the company has no subsidiaries, the report
shall—
(a)
so far as regards profits and losses, deal
with the profits or losses of the company in
respect of each of the 3 financial years
immediately preceding the issue of the prospectus;
and
(b)
so far as regards assets and liabilities,
deal with the assets and liabilities of the
company at the last date to which the financial
statements of the company were
prepared.
(3)
If the company has subsidiaries, the report
shall—
(a)
so far as regards profits and losses, deal
separately with the company’s (other than
subsidiaries) profits or losses as provided by
sub-paragraph (2) and, in addition, deal
either—
(i)
as a whole with the combined profits or
losses of its subsidiaries; or
(ii)
individually with the profits or losses
of each subsidiary,
or, instead of dealing separately with
the company’s profits or losses, deal as a whole
with the profits or losses of the company and with
the combined profits or losses of its
subsidiaries; and
(b)
so far as regards assets and liabilities,
deal separately with the company’s (other than
subsidiaries) assets and liabilities as provided
by sub-paragraph (2) and, in addition, deal
either—
(i)
as a whole with the combined assets and
liabilities of its subsidiaries, with or without
the company’s assets and liabilities; or
(ii)
individually with the assets and
liabilities of each subsidiary,
and shall indicate as respects the profits or
losses and assets and liabilities of the
subsidiaries the allowance to be made for persons
other than members of the company.
(Replaced 30 of 2004 s. 2. Amended 28 of 2012 ss. 912 & 920)
32.
If the proceeds, or any part of the proceeds, of the issue
of the shares or debentures are or is to be applied directly
or indirectly in the purchase of any business, a report made
by accountants (who shall be named in the prospectus)
upon—
(a)
the profits or losses of the business in respect of
each of the 3 financial years immediately preceding
the issue of the prospectus; and
(Amended 86 of 1992 s. 18)
(b)
the assets and liabilities of the business at the
last date to which the financial statements of the
business were prepared.
(Amended 28 of 2012 ss. 912 & 920)
33.
(1)
if—
(a)
the proceeds, or any part of the proceeds,
of the issue of the shares or debentures are or is
to be applied directly or indirectly in any manner
resulting in the acquisition by the company of
shares in any other undertaking; and
(b)
by reason of that acquisition or anything
to be done in consequence thereof or in connexion
therewith that undertaking will become a
subsidiary of the company,
a report made by accountants (who shall be named
in the prospectus) upon—
(i)
the profits or losses of the other
undertaking in respect of each of the 3 financial
years immediately preceding the issue of the
prospectus; and
(Amended 86 of 1992 s. 18)
(ii)
the assets and liabilities of the other
undertaking at the last date to which the
financial statements of the undertaking were
prepared.
(Amended 28 of 2012 ss. 912 & 920)
(2)
The said report shall—
(a)
indicate how the profits or losses of the
other undertaking dealt with by the report would,
in respect of the shares to be acquired, have
concerned members of the company and what
allowance would have fallen to be made, in
relation to assets and liabilities so dealt with,
for holders of other shares, if the company had at
all material times held the shares to be acquired;
and
(b)
where the other undertaking has
subsidiaries, deal with the profits or losses and
the assets and liabilities of the undertaking and
its subsidiaries in the manner provided by
paragraph 31(3) in relation to the
company and its subsidiaries.
(Amended 12 of 2005 s. 15)
34.
(1)
This paragraph shall apply in the case of every
company whose financial statements at the last date
to which the financial statements have been prepared
disclose that either a value exceeding 10 per cent
of the value of the assets of the company or a value
of not less than $3,000,000 is placed on the
company’s interests in land or buildings.
(Amended 28 of 2012 ss. 912 & 920)
(2)
A valuation report with respect to all the company’s
interests in land or buildings which shall include
the following particulars of each property—
(a)
the address;
(b)
a brief description;
(c)
the use at the date of the
report;
(d)
the nature of the tenure;
(e)
a summary of the terms of any sub-leases or
tenancies, including repair obligations, granted
by the
company;
(f)
the approximate age of
buildings;
(g)
the present capital value;
(h)
the estimated current net rental, being the
estimated average net annual income from the
property accruing to the company over a long
period of years (not being less than 3 years)
before taking into account tax and any interest or
mortgage expenses but after taking into account
management and maintenance expenses.
(3)
A report for the purposes of sub-paragraph (2) shall
state—
(a)
whether the valuation—
(i)
is the current value in the open market,
stating whether—
(A)
on an investment basis, or
(B)
on a development basis, or
(C)
on a future capital realization
basis;
(ii)
is the current value as an asset of a
going concern;
(iii)
is the value after development has been
completed; or
(iv)
has any other basis (which should be
stated);
(b)
where the valuation is based on value after
development has been completed—
(i)
the date when the development is expected
to be completed;
(ii)
the estimated cost of carrying out the
development or (where part of the development has
already been carried out) the estimated cost of
completing the development; and
(iii)
the estimated value of the property in
the open market in its present condition.
(4)
If the company has obtained more than one valuation
report regarding any of the company’s interests in
land or buildings within 6 months before the issue
of the prospectus then all other such reports shall
be included.
Part
III
Provisions applying to Parts I and II of
Schedule
35.
Paragraphs 15 (so far as it relates to
preliminary expenses) and 19 shall not apply in the case of
a prospectus issued more than 2 years after the date at
which the company began to carry on business.
36.
Every person shall, for the purposes of this
Schedule, be deemed to be a vendor who
has entered into any contract, absolute or conditional, for
the sale or purchase, or for any option of purchase, of any
property to be acquired by the company, in any case
where—
(a)
the purchase money is not fully paid at the date of
the issue of the prospectus;
(b)
the purchase money is to be paid or satisfied
wholly or in part out of the proceeds of the issue
offered for subscription by the
prospectus;
(c)
the contract depends for its validity or fulfilment
on the result of that issue.
37.
Where any property to
be acquired by the company is to be taken on lease, this
Schedule shall have effect as if the
expression “
vendor
” included
the lessor, and the expression “purchase money
” included the consideration
for the lease, and the expression “sub-purchaser
” included a
sub-lessee.38.
References in paragraph 10 to subscribing for
shares or debentures shall include acquiring them from a
person to whom they have been allotted or agreed to be
allotted with a view to his offering them for
sale.
39.
For the purposes of paragraph 12 where the
vendors or any of them are a firm, the members of the firm
shall not be treated as separate vendors.
40.
If in the case of a company which has been carrying on
business, or of a business which has been carried on for
less than 3 years, the financial statements of the company
or business have only been prepared in respect of 2 years or
1 year, Part II shall have effect as if references to 2
years or 1 year, as the case may be, were substituted for
references to 3 years.
(Amended 86 of 1992 s. 18; 28 of 2012 ss. 912 & 920)
41.
The expression
financial year
(財政年度
) in this
Schedule means the year in respect of
which the financial statements of the company or of the
business, as the case may be, are prepared, and where by
reason of any alteration of the date on which the financial
year of the company or business terminates the financial
statements of the company or business have been prepared for
a period greater or less than a year, that period is for the
purposes of this Schedule to be regarded as a
financial year. (Amended 28 of 2012 ss. 912 & 920)
42.
Any report required by Part II shall either indicate by way
of note any adjustments as respects the figures of any
profits or losses or assets and liabilities dealt with by
the report which appear to the persons making the report
necessary or shall make those adjustments and indicate that
adjustments have been
made.
43.
Any report by accountants required by Part II
shall be made by
persons
who are not prohibited under section 20AAZZR of
the Accounting and Financial Reporting Council Ordinance
(Cap. 588) from holding
any appointment as auditors of a company
and shall not be made by any accountant who is an
officer
or servant, or a
partner of or in the employment of an officer or servant, of
the company or of the company’s subsidiary or parent
undertaking or of a subsidiary of the company’s parent
undertaking; and for the purposes of this paragraph the
expression officer (高級人員
) shall include a
proposed director but not an auditor. 44.
For the purposes of paragraph 6, the description
of a person, that is to say, his profession, trade or other
occupation shall be stated with particularity and precision;
and the description “Company Director” shall be inadequate
unless supplementary information is provided stating the
nature of the relevant company’s business.
45.
For the purposes of this Schedule,
address
(地址
) in the case of a natural person means
the place of his usual residence.46.
Any valuation report required by Part II—
(a)
shall not state or imply that any land or building
has been professionally valued unless the valuation
is made by a professionally qualified valuation
surveyor who is subject to the discipline of a
professional body;
(b)
shall not be made by a person who is an officer or
servant or proposed director of the company or the
company’s subsidiary or parent undertaking or of a
subsidiary of the company’s parent undertaking;
and
(c)
shall not be made by a company which—
(i)
is the company’s subsidiary or parent
undertaking or a subsidiary of the company’s
parent undertaking; or
(ii)
has either a paid up capital of less than
$1,000,000 or the assets of which do not exceed
liabilities by $1,000,000 or more as shown in the
company’s last balance sheet.
(Amended 12 of 2005 s. 15)
47.
(Repealed 30 of 2004 s. 2)
Fourth
Schedule
Form of
Statement in lieu of Prospectus to be delivered to Registrar by a Company which does not
issue a Prospectus or which does not go to Allotment on a Prospectus Issued, and Reports
to be set out
therein
(Fourth
Schedule replaced 78 of 1972 s. 21. Amended L.N. 187 of 1993; 83 of 1995 s. 23; Amended 28 of 2012 ss. 912 & 920)
(Format changes—E.R. 1 of
2014)
Part
I
Form of Statement and Particulars to be contained therein
COMPANIES (WINDING UP AND
MISCELLANEOUS PROVISIONS) ORDINANCE
Statement
in lieu of Prospectus delivered for registration by
[Insert the name of the company]
[Insert the name of the company]
Pursuant to section 43 of the
Companies (Winding Up and
Miscellaneous Provisions)
Ordinance
|
Delivery for
registration duly authorized by (Insert the name of every director
who has authorized and signed this Statement).
|
||||||||
|
The amount of the issued
share capital of the company.
|
$
|
|||||||
| Divided into |
Shares of $
|
each.
|
||||||
|
”
|
”
|
”
|
||||||
|
”
|
”
|
”
|
||||||
|
Amount (if any) of above
capital which consists of redeemable shares.
|
||||||||
|
The earliest date on
which the company has power to redeem these shares.
|
||||||||
|
Names, descriptions and
addresses of directors or proposed directors.
|
||||||||
|
If the share capital of
the company is divided into different classes of shares, the right
of voting at meetings of the company conferred by, and the rights in
respect of capital and dividends attached to, the several classes of
shares respectively.
|
||||||||
|
Number and amount of
shares and debentures agreed to be issued as fully or partly paid up
otherwise than in cash.
|
1.
|
shares of
$ fully paid. |
||||||
|
2.
|
shares upon which $ per share credited as paid.
|
|||||||
|
3.
|
debentures
$ |
|||||||
|
The consideration for
the intended issue of those shares and debentures.
|
4.
|
Consideration—
|
||||||
|
Number, description and
amount of any shares or debentures which any person has or is
entitled to be given an option to subscribe for, or to acquire from
a person to whom they have been allotted or agreed to be allotted
with a view to his offering them for
sale.
|
1.
|
shares of
$ and debentures of $ |
||||||
|
Period during which
option is exercisable.
|
2.
|
Until
|
||||||
|
Price to be paid for
shares or debentures subscribed for or acquired under option.
|
3.
|
|||||||
|
Consideration for option
or right to option.
|
4.
|
Consideration—
|
||||||
|
Persons to whom option
or right to option was given or, if given to existing shareholders
or debenture holders as such, the relevant shares or debentures.
|
5.
|
Names and addresses—
|
||||||
|
Names and addresses of
vendors of property purchased or acquired, or proposed to be
purchased or acquired by the company except where the contract for
its purchase or acquisition was entered into in the ordinary course
of the business intended to be carried on by the company or the
amount of the purchase money is not material.
|
||||||||
|
Amount (in cash, shares
or debentures) payable to each separate vendor.
|
||||||||
|
Amount (if any) paid or
payable (in cash or shares or debentures) for any such property,
specifying amount (if any) paid or payable for goodwill.
Short particulars of any
transaction relating to any such property which was completed within
the 2 preceding years and in which any vendor to the company or any
person who is, or was at the time thereof, a promoter, director or
proposed director of the company had any interest direct or
indirect.
|
Total purchase
price
|
|||||||
|
$
|
||||||||
|
|
|
Cash | $ | |||||
|
|
|
Shares | $ | |||||
|
|
|
Debentures | $ | |||||
|
|
|
Goodwill | $ | |||||
|
Amount (if any) paid or
payable as commission for subscribing or agreeing to subscribe or
procuring or agreeing to procure subscriptions for any shares or
debentures in the company; or
|
Amount paid.
Amount payable.
|
|||||||
| Rate of the commission | Rate per cent. | |||||||
|
The number of shares, if
any, which persons have agreed for a commission to subscribe
absolutely.
|
||||||||
|
Estimated amount of
preliminary expenses.
|
$ | |||||||
|
By whom those expenses
have been paid or are payable.
|
||||||||
|
Amount paid or intended
to be paid to any promoter.
|
Name of promoter.
Amount $
|
|||||||
| Consideration for the payment |
|
|
Consideration— | |||||
|
Any other benefit given
or intended to be given to any promoter.
|
Name of promoter—
Nature
and value of benefit—
|
|||||||
|
Consideration for giving
of benefit.
|
Consideration—
|
|||||||
|
Dates of, parties to and
general nature of every material contract (other than contracts
entered into in the ordinary course of the business intended to be
carried on by the company or entered into more than 2 years before
the delivery of this statement).
|
||||||||
|
Time and place at which
the contracts or copies thereof may be inspected or (1) in the case
of a contract not reduced into writing, a memorandum giving full
particulars thereof, and (2) in the case of a contract wholly or
partly in a language other than the official languages, a copy of a
translation thereof in English or Chinese or embodying a translation
in English or Chinese of the parts in a language other than the
official languages, as the case may be, being a translation
certified in the prescribed manner to be a correct translation.
|
||||||||
|
Names and addresses of
the auditors of the company (if any).
|
||||||||
|
Full particulars of the
nature and extent of the interest of every director in the promotion
of or in the property proposed to be acquired by the company, or
where the interest of such a director consists in being a partner in
a firm, the nature and extent of the interest of the firm, with a
statement of all sums paid or agreed to be paid to him or to the
firm in cash or shares, or otherwise, by any person either to induce
him to become, or to qualify him as, a director, or otherwise for
services rendered by him or by the firm in connexion with the
promotion or formation of the company.
|
||||||||
|
(Signatures of the
persons above-named as directors or proposed directors, or of their
agents authorized in writing.)
|
||||||||
|
|
||||||||
|
|
||||||||
|
|
||||||||
|
Date:
|
||||||||
(Amended 23 of 1998 s. 2; Amended 28 of 2012 ss. 912 & 920)
Part II
Reports to be set out
1.
Where it is proposed to acquire a business, a report made by accountants
(who shall be named in the statement) upon—
(a)
the profits or losses of the business in respect of each of the 5
financial years immediately preceding the delivery of the statement to the
Registrar; and
(b)
the assets and liabilities of the business at the last date to which
the financial statements of the business were prepared.
(Amended 28 of 2012 ss. 912 & 920)
2.
(1)
Where it is proposed to acquire shares in an undertaking which by
reason of the acquisition or anything to be done in consequence thereof or
in connexion therewith will become a subsidiary of the company, a report
made by accountants (who shall be named in the statement) with respect to
the profits and losses and assets and liabilities of the other undertaking
in accordance with sub-paragraph (2) or (3), as the case requires,
indicating how the profits or losses of the other undertaking dealt with by
the report would, in respect of the shares to be acquired, have concerned
members of the company, and what allowance would have fallen to be made, in
relation to assets and liabilities so dealt with, for holders of other
shares, if the company had at all material times held the shares to be
acquired.
(2)
If the other undertaking has no subsidiaries, the report referred to in
sub-paragraph (1) shall—
(Amended 12 of 2005 s. 16)
(a)
so far as regards profits and losses, deal with the profits or
losses of the undertaking in respect of each of the 5 financial years
immediately preceding the delivery of the statement to the Registrar;
and
(b)
so far as regards assets and liabilities, deal with the assets and
liabilities of the undertaking at the last date to which the financial
statements of the undertaking were prepared.
(Amended 28 of 2012 ss. 912 & 920)
(3)
If the other undertaking has subsidiaries, the report referred to in
sub-paragraph (1) shall—
(Amended 12 of 2005 s. 16)
(a)
so far as regards profits and losses, deal separately with the other
undertaking’s profits or losses as provided by sub-paragraph (2), and in
addition deal either—
(Amended 12 of 2005 s. 16)
(i)
as a whole with the combined profits or losses of its
subsidiaries, so far as they concern members of the other
undertaking; or
(ii)
individually with the profits or losses of each subsidiary, so
far as they concern members of the other undertaking;
or, instead of dealing separately with the other undertaking’s
profits or losses, deal as a whole with the profits or losses of the
other undertaking and, so far as they concern members of the other
undertaking, with the combined profits or losses of its subsidiaries;
and
(b)
so far as regards assets and liabilities, deal separately with the
other undertaking’s assets and liabilities as provided by the last
foregoing sub-paragraph and, in addition, deal
either—
(Amended 12 of 2005 s. 16)
(i)
as a whole with the combined assets and liabilities of its
subsidiaries, with or without the other undertaking’s assets and
liabilities; or
(ii)
individually with the assets and liabilities of each
subsidiary;
and shall indicate as respects the assets and liabilities of the
subsidiaries the allowance to be made for persons other than members of the
company.
(Amended 12 of 2005 s. 16)
Part III
Provisions Applying to Parts I and II of this Schedule
3.
In this Schedule the expression
vendor
(賣主
) includes a
vendor as defined in Part III of the Third Schedule, and the
expression financial year
(財政年度
)
has the meaning assigned to it in that Part of that Schedule.4.
If in the case of a business which has been carried on, or of an
undertaking which has been carrying on business, for less than 5 years, the
financial statements of the business or undertaking have only been prepared in
respect of 4 years, 3 years, 2 years or 1 year, Part II shall have effect as if
references to 4 years, 3 years, 2 years or 1 year, as the case may be, were
substituted for references to 5 years.
(Amended 12 of 2005 s. 16; 28 of 2012 ss. 912 & 920)
5.
Any report required by Part II shall either indicate by way of note any
adjustments as respects the figures of any profits or losses or assets and
liabilities dealt with by the report which appear to the persons making the
report necessary or shall make those adjustments and indicate that adjustments
have been made.
6.
Any report by accountants required by Part II shall be made by
accountants authorized under the Companies Ordinance (Cap. 622) for appointment as auditors of a company and shall not be
made by any accountant who is an
officer
or
servant, or a partner of or in the employment of an officer or servant, of the
company or of the company’s subsidiary or parent undertaking or of a subsidiary
of the company’s parent undertaking; and for the purposes of this paragraph the
expression officer (高級人員
) shall
include a proposed director but not an auditor. (Amended 12 of 2005 s. 16; 28 of 2012 ss. 912 & 920)
7.
For the purposes of Part I, the description of a person, that is to say,
his profession, trade or other occupation shall be stated with particularity and
precision; and the description Company Director shall be inadequate unless
supplementary information is provided stating the nature of the relevant
company’s business.
8.
For the purposes of Part I,
address
(地址
) in the case of a natural person means the
place of his usual residence.Fifth
Schedule
(Repealed 3 of 1997 s. 58)
Sixth
Schedule
(Repealed 3 of 1997 s. 58)
Seventh
Schedule
(Repealed 28 of 2012 ss. 912 & 920)
Eighth
Schedule
(Repealed 28 of 2012 ss. 912 & 920)
Ninth
Schedule
(Repealed 28 of 2012 ss. 912 & 920)
Tenth
Schedule
(Repealed 28 of 2012 ss. 912 & 920)
Eleventh
Schedule
(Repealed 28 of 2012 ss. 912 & 920)
Twelfth Schedule
(Amended 14 of 2016 s. 116)
Punishment of Offences under this
Ordinance
|
Section
creating offence
|
General
nature of offence
|
Mode of
prosecution
|
Punishment
|
Daily default
fine (if applicable)
|
|||||
|
38(1B)
|
Issuing a company prospectus that does not comply with section
38(1) and (1A)
|
Summary
|
level 5
|
—
|
|||||
|
38(3)
|
Issuing a company prospectus that does not comply with section
38
|
Summary
|
level 6
|
—
|
|||||
|
38B(3)
|
Advertising an abstract from or an abridged version of a company
prospectus
|
Summary
|
level 6
|
—
|
|||||
|
38C(2)
|
Issuing a company prospectus with an expert’s statement in it, he not
having given his consent
|
Summary
|
level 6
|
—
|
|||||
|
38D(8)
|
Issuing a company prospectus without delivering a copy to the
Registrar or without the requisite endorsements
(Amended 86 of 1992 s. 20) |
Summary
|
level 6
|
$300
|
|||||
|
39A(3)
|
Amendment of prospectus consisting of one document not done in
compliance with Part 1 of the Twentieth
Schedule
(Added 30 of 2004 s. 2) |
Summary
|
level 6
|
—
|
|||||
|
39B(4)
|
Amendment of prospectus consisting of more than one document not done
in compliance with Part 1 of
the Twenty-first
Schedule
(Added 30 of 2004 s. 2) |
Summary
|
level 6
|
—
|
|||||
|
40A(1)
|
Authorizing the issue of a prospectus containing an untrue
statement
|
On indictment
|
$700,000 and 3 years
|
—
|
|||||
|
Summary
|
$150,000 and 12 months
|
—
|
|||||||
|
43(4)
|
Allotting shares before the 3rd day after delivering a statement in
lieu of prospectus to the Registrar
|
Summary
|
level 6
|
—
|
|||||
|
43(5)
|
Authorizing a statement in lieu of prospectus under section
43(1) containing an untrue statement
|
On indictment
|
$350,000 and 2 years
|
—
|
|||||
|
Summary
|
$150,000 and 12 months
|
—
|
|||||||
|
44A(4)
|
Allotting shares before the 3rd day after the issue of a
prospectus
|
Summary
|
level 6
|
—
|
|||||
|
44B(3)
|
Company failing to keep money in separate bank account when received
under a prospectus stating that stock exchange listing is being
applied for
|
Summary
|
level 5
|
—
|
|||||
|
168M
|
Person contravening a disqualification order
(Added 30 of 1994 s. 12. Amended E.R. 1 of
2014) |
On indictment
|
Level 6 and 2 years
|
—
|
|||||
|
Summary
|
Level 4 and 6 months
|
—
|
|||||||
|
190(5)
|
Person failing to comply with requirements to give information, etc.,
to liquidator under section 190
(Amended 46 of 2000 s. 39) |
Summary
|
level 5
|
$300
|
|||||
|
227(3)
|
Liquidator failing to deliver dissolution order to the Registrar
|
Summary
|
level 5
|
$300
|
|||||
|
228A(4)
|
Director signing a winding-up statement without having reasonable
grounds for the opinion that the company cannot by reason of its
liabilities continue its business, or to consider that the winding
up should be commenced under section
228A because it is not reasonably practicable for it to be
commenced under another section of the Ordinance, or for certifying
that a resolution has been passed, a meeting of the company has been
summoned and a provisional liquidator has been appointed
(Added 28 of 2003 s. 119. Amended 14 of 2016 s. 116) |
Summary
|
level 5 and 6 months
|
—
|
|||||
|
228A(6)
|
Director failing to cause meeting of the creditors to be summoned for
a date not later than 28 days after delivery of winding-up statement
(Added 28 of 2003 s. 119. Amended 14 of 2016 s. 116) |
Summary
|
level 5
|
—
|
|||||
|
228A(8B)
|
Person acting as provisional liquidator without having consented to
the appointment, or not being a solicitor or certified public
accountant
(Added 14 of 2016 s. 116) |
Summary
|
$150,000
|
—
|
|||||
|
228A(9A)
|
Director failing to give notice
by
the specified
means
of the commencement of winding up and appointment of a provisional
liquidator
(Added 14 of 2016 s. 116. Amended 22 of 2023 s. 65) |
Summary
|
level 3
|
$300
|
|||||
|
228A(13)
(relating to subsection (10)) |
Provisional liquidator failing to deliver to the Registrar the notice
of appointment required under section
228A(10)
(Added 28 of 2003 s. 119) |
Summary
|
level 3
|
$200
|
|||||
|
228A(13)
(relating to subsection (11)(a)) |
Person ceasing to act as provisional liquidator failing to publish
by
the specified
means
the notice required under section
228A(11)(a)
(Added 28 of 2003 s. 119. Amended 22 of 2023 s. 65) |
Summary
|
level 3
|
$200
|
|||||
|
228A(13)
(relating to subsection (11)(b)) |
Person ceasing to act as provisional liquidator failing to deliver to
the Registrar the notice required under section
228A(11)(b)
(Added 28 of 2003 s. 119) |
Summary
|
level 3
|
$200
|
|||||
|
228A(13)
(relating to subsection (12)) |
Provisional liquidator failing to deliver to the Registrar the notice
of change of particulars required under section
228A(12)
(Added 28 of 2003 s. 119) |
Summary
|
level 3
|
$200
|
|||||
|
228B(5)
|
Provisional liquidator exercising a power without the sanction of the
court
(Added 14 of 2016 s. 116) |
Summary
|
level 5
|
—
|
|||||
|
228B(7)
|
Provisional liquidator failing to attend a meeting of the creditors
or report on the exercise of powers
(Added 14 of 2016 s. 116) |
Summary
|
level 5
|
—
|
|||||
|
229(2)
|
Company failing to
give
notice of resolution to wind up voluntarily by the specified means
(Amended 22 of 2023 s. 65) |
Summary
|
level 3
|
$300
|
|||||
|
233(3)
|
Director signing a certificate that company being wound up
voluntarily can meet its debts within the time set out in the
certificate without having reasonable grounds to do so
(Amended 28 of 2003 s. 119) |
Summary
|
level 5 and 6 months
|
—
|
|||||
|
237A(3)
(relating to subsection (1A)) |
Liquidator, on forming the opinion that a company in voluntary
winding up will not be able to pay its debts in full within the
period stated in the certificate of solvency, failing to summon
meeting of creditors, or send notice of the meeting to the
creditors, or cause notice of the meeting to be
published
by the specified means
|
Summary
|
level 3
|
—
|
|||||
|
237A(3)
(relating to subsection (1B)) |
Liquidator failing to make a disclosure statement if not disqualified
under section 262B(3)
(Added 14 of 2016 s. 116) |
Summary
|
level 3
|
—
|
|||||
|
237A(3)
(relating to subsection (1C)) |
Liquidator failing to inform creditors that he or she would be
disqualified under section 262B(3), etc.
(Added 14 of 2016 s. 116) |
Summary
|
level 3
|
—
|
|||||
|
237A(3)
(relating to subsection (1D)) |
Liquidator failing to provide creditors with information concerning
the company’s affairs
(Added 14 of 2016 s. 116) |
Summary
|
level 3
|
—
|
|||||
|
237A(3)
(relating to subsection (1E)) |
Liquidator failing to inform creditors of the liquidator’s duty to
provide information in notice of meeting of creditors
(Added 14 of 2016 s. 116) |
Summary
|
level 3
|
—
|
|||||
|
237A(3)
(relating to subsection (1F)) |
Liquidator failing to prepare full statement of the position of the
company’s affairs or lay that statement before the meeting of
creditors
(Added 14 of 2016 s. 116) |
Summary
|
level 3
|
—
|
|||||
|
237A(3)
(relating to subsection (1H)) |
Liquidator failing to attend or preside at meeting of creditors
(Added 14 of 2016 s. 116) |
Summary
|
level 3
|
—
|
|||||
|
238(2)
|
Liquidator failing to call a general meeting at the end of any
year
|
Summary
|
level 3
|
—
|
|||||
|
239(3)
|
Liquidator failing to send the Registrar a copy of accounts, etc., on
completion of the winding up
|
Summary
|
level 3
|
$300
|
|||||
|
239(5)
|
Person failing to deliver an office copy of an order under section 239
to the Registrar for registration
|
Summary
|
level 3
|
$300
|
|||||
|
239(6)
|
Liquidator failing to call a final general meeting under section
239
|
Summary
|
level 3
|
—
|
|||||
|
241(6)
|
Company, etc., failing to comply with the requirements to call
creditors’ meeting, etc., after a meeting which proposes to wind up
the company voluntarily
|
Summary
|
level 5
|
—
|
|||||
|
243A(6)
|
Liquidator exercising a power without the sanction of the court
(Added 14 of 2016 s. 116) |
Summary
|
level 5
|
—
|
|||||
|
243A(7)
(relating to subsection (3)) |
Liquidator failing to attend meeting of creditors or report on the
exercise of powers
(Added 14 of 2016 s. 116) |
Summary
|
level 5
|
—
|
|||||
|
243A(7)
(relating to subsection (4)) |
Liquidator failing to apply for court’s directions when the company
fails to cause meeting of creditors to be summoned or notices of the
meeting to be sent to creditors
(Added 14 of 2016 s. 116) |
Summary
|
level 5
|
—
|
|||||
|
247(2)
|
Liquidator failing to call annual meeting of creditors
|
Summary
|
level 3
|
—
|
|||||
|
248(3)
|
Liquidator failing to send copy account or return of holding of final
meeting to the Registrar
|
Summary
|
level 3
|
$300
|
|||||
|
248(5)
|
Person failing to deliver an office copy of an order under section 248
to the Registrar for registration
|
Summary
|
level 3
|
$300
|
|||||
|
248(6)
|
Liquidator failing to call a general meeting of the company or of
creditors as required by section
248
|
Summary
|
level 3
|
—
|
|||||
|
250A(4)
|
Director exercising a power without the sanction of the court
(Added 14 of 2016 s. 116) |
Summary
|
level 5
|
—
|
|||||
|
253(4)
(relating to subsection (1)(a)) |
Liquidator failing to publish
by
the specified
means
the notice of appointment required under section
253(1)(a)
(Added 28 of 2003 s. 119. Amended 22 of 2023 s. 65) |
Summary
|
level 3
|
$300
|
|||||
|
253(4)
(relating to subsection (1)(b)) |
Liquidator failing to deliver to the Registrar the notice of
appointment required under section
253(1)(b)
(Added 28 of 2003 s. 119) |
Summary
|
level 3
|
$300
|
|||||
|
253(4)
(relating to subsection (2)(a)) |
Person ceasing to act as liquidator failing to publish
by
the specified
means
the notice required under section
253(2)(a)
(Added 28 of 2003 s. 119. Amended 22 of 2023 s. 65) |
Summary
|
level 3
|
$300
|
|||||
|
253(4)
(relating to subsection (2)(b)) |
Person ceasing to act as liquidator failing to deliver to the
Registrar the notice required under section
253(2)(b)
(Added 28 of 2003 s. 119) |
Summary
|
level 3
|
$300
|
|||||
|
253(4)
(relating to subsection (3)) |
Liquidator failing to deliver to the Registrar the notice of change
of particulars required under section
253(3)
(Added 28 of 2003 s. 119) |
Summary
|
level 3
|
$300
|
|||||
|
262A(4)
|
Person acting as provisional liquidator or liquidator without meeting
the conditions specified in section 262A(2)
(Added 14 of 2016 s. 116) |
Summary
|
$150,000
|
—
|
|||||
|
262D(4)
|
Person omitting to disclose a relationship that is required to be
disclosed
(Added 14 of 2016 s. 116) |
Summary
|
level 3
|
—
|
|||||
|
262E(5)
|
Convenor failing to ensure that notices of meeting comply with
certain requirements or disclosure statements are tabled
(Added 14 of 2016 s. 116) |
Summary
|
level 3
|
—
|
|||||
|
262F(7)
|
Provisional liquidator or liquidator failing to update disclosure
statement or give notice, etc. of the update
(Added 14 of 2016 s. 116) |
Summary
|
level 3
|
—
|
|||||
|
271(1)
(relating to paragraph (o)) |
Officer, etc., failing to comply with section 271
(offences by officers of companies in liquidation)
|
On indictment
|
5 years
|
—
|
|||||
|
Summary
|
2 years
|
—
|
|||||||
|
271(1) (relating to any other paragraph)
|
Officer, etc., failing to comply with section 271
(offences by officers of companies in liquidation)
|
On indictment
|
$150,000 and 2 years
|
—
|
|||||
|
Summary
|
level 5 and 6 months
|
—
|
|||||||
|
272
|
Officer, etc., falsifying, etc., books, etc.
|
On indictment
|
$150,000 and 2 years
|
—
|
|||||
|
Summary
|
level 5 and 6 months
|
—
|
|||||||
|
273
|
Officer acting with intent to defraud creditors by giving, etc., or
concealing, etc., property of company in liquidation
|
On indictment
|
$150,000 and 2 years
|
—
|
|||||
|
Summary
|
level 5 and 6 months
|
—
|
|||||||
|
274(1)
|
Officer failing to keep proper records for a specified period prior
to winding up of company
(Amended 14 of 2016 s. 116) |
On indictment
|
$150,000 and 2 years
|
—
|
|||||
|
Summary
|
level 5 and 6 months
|
—
|
|||||||
|
275(3)
|
Person being a party to carrying on the business of a company with
intent to defraud creditors
|
On indictment
|
Fine (unlimited) and 5 years
|
—
|
|||||
|
Summary
|
$150,000 and 12 months
|
—
|
|||||||
|
278A(1)
|
Person inducing appointment etc. of provisional liquidator or
liquidator
(Amended 14 of 2016 s. 116) |
Summary
|
$150,000
|
—
|
|||||
|
280(2)
|
Company, etc., failing to notify on invoice, etc., that it is in
liquidation
|
Summary
|
level 3
|
—
|
|||||
|
283(4)
|
Person contravening general rules made for the destruction, etc., of
books, etc., of liquidated company
|
Summary
|
level 3
|
—
|
|||||
|
284(3)
|
Liquidator failing to send prescribed particulars with respect to the
proceedings in and position of the liquidation during the
liquidation to the Registrar
|
Summary
|
level 3
|
$700
|
|||||
|
290(2)
|
Person failing to deliver an office copy of an order under section 290
to the Registrar for registration
|
Summary
|
level 3
|
$300
|
|||||
|
296E(7)
|
Liquidator or provisional liquidator failing to send or supply a free
copy of document or information given by electronic means within 5
business days after receipt of the request
(Added 14 of 2016 s. 116) |
Summary
|
level 3
|
—
|
|||||
|
297(2)
|
Body corporate acting as a receiver
|
Summary
|
level 5
|
—
|
|||||
|
297A
|
Undischarged bankrupt acting as a receiver
|
On indictment
|
$150,000 and 2 years
|
—
|
|||||
|
Summary
|
level 5 and 6 months
|
—
|
|||||||
|
297B(1)
|
Person inducing appointment etc. of receiver or manager of the
property of a company
(Added 14 of 2016 s. 116) |
Summary
|
$150,000
|
—
|
|||||
|
299(2)
|
Company, etc., authorizing, etc., the issue of invoices, etc.,
without reference to its being in receivership, etc.
|
Summary
|
level 3
|
—
|
|||||
|
300A(7)
|
Receiver failing to give notices, etc., as required under section
300A
|
Summary
|
level 3
|
$300
|
|||||
|
300B(5)
|
Persons defaulting in complying with requirements of section
300B (special provisions as to statement submitted to
receiver)
|
Summary
|
level 3
|
$300
|
|||||
|
301(2)
|
Receiver, etc., failing to deliver accounts to the Registrar
|
Summary
|
level 3
|
$300
|
|||||
|
342CA(3)
|
Amendment of prospectus consisting of one document not done in
compliance with Part 2 of the Twentieth
Schedule
(Added 30 of 2004 s. 2) |
Summary
|
level 6
|
—
|
|||||
|
342CB(4)
|
Amendment of prospectus consisting of more than one document not done
in compliance with Part 2 of
the Twenty-first
Schedule
(Added 30 of 2004 s. 2) |
Summary
|
level 6
|
—
|
|||||
|
342D
|
Person responsible for issue, etc., of prospectus, etc., contravening
sections 342
to 342C
|
Summary
|
$150,000
|
—
|
|||||
|
342F(1)
|
Authorizing the issue, circulation or distribution in Hong Kong of a
prospectus (containing an untrue statement) relating to shares in or
debentures of a company incorporated outside Hong Kong (whether the
company has or has not established a place of business in Hong Kong)
|
On indictment
|
$550,000 and 3 years
|
—
|
|||||
|
Summary
|
$150,000 and 12 months
|
—
|
|||||||
|
349
|
Person making a false statement
|
Summary
|
level 6 and 6 months
|
—
|
|||||
|
360J
|
Person obstructing Official Receiver
|
Summary
|
$150,000 and 6 months
|
—
|
|||||
(Twelfth Schedule added 7 of 1990 s. 4. Amended 77 of 1991 s. 8; 30 of 1994 s. 12; 84 of 1995 s. 8; L.N. 306 of
1996; 3 of 1997 s. 62; 28 of 2003 s. 119; 28 of 2012 ss. 912 & 920; 14 of 2016 s. 116)
(Format changes—E.R. 1 of 2014)
Thirteenth
Schedule
(Repealed 28 of 2012 ss. 912 & 920)
Fourteenth
Schedule
(Repealed 28 of 2012 ss. 912 & 920)
Fifteenth Schedule
(Amended 14 of 2016 s. 117)
Matters for Determining Unfitness of
Directors
(Fifteenth
Schedule added 30 of 1994 s. 13)
(Format changes—E.R. 1 of
2014)
Part I
Matters Applicable in all Cases
1.
Any misfeasance or breach of any fiduciary or other duty by the director in
relation to the company.
2.
Any misapplication or retention by the director of, or any conduct by the
director giving rise to an obligation to account for, any money or other
property of the company.
3.
The extent of the director’s responsibility for any failure by the company
to comply
with—
(Amended 28 of 2012 ss. 912 & 920)
(a)
any of the following provisions of the pre-amended Ordinance—
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
section 158A; and
(b)
any of the following provisions of the Companies Ordinance (Cap. 622)—
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(xii)
(xiii)
(xiv)
(xv)
(xvi)
(xvii)
(xviii)
(xix)
(xx)
section 662; and
(xxi)
(Amended 28 of 2012 ss. 912 & 920)
4.
The extent of the director’s responsibility for any failure by the directors
of the company to comply with—
(a)
sections 122 and 129B of the pre-amended
Ordinance; and
(b)
(Amended 28 of 2012 ss. 912 & 920)
Part II
Matters Applicable where Company has become Insolvent
1.
The extent of the director’s responsibility for the causes of the company
becoming insolvent.
2.
The extent of the director’s responsibility for any failure by the company
to supply any goods or services which have been paid for (in whole or in
part).
3.
The extent of the director’s responsibility for the company entering into
any transaction or giving any
unfair
preference, being a transaction or unfair preference liable to be set aside
under section 182, 265D or
266.
(Amended 14 of 2016 s. 117)
4.
The extent of the director’s responsibility for any failure by the
directors of the company to comply with section 241.
5.
Any failure by the director to comply with any obligation imposed on him by
or under any of the following provisions—
(a)
(b)
(c)
(d)
section 241;
(Amended 3 of 1997 s. 64)
(da)
section 274; and
(Added 3 of 1997 s. 64)
(e)
Sixteenth
Schedule
(Repealed 28 of 2012 ss. 912 & 920)
Seventeenth
Schedule
Offers Specified for the Purposes of Paragraph
(b)(ii) of the Definition
of
Prospectus
in Section 2(1) of this
Ordinance(Seventeenth
Schedule added 30 of 2004 s. 2)
(Format changes—E.R. 1 of
2014)
Part 1
List of Offers, etc. Not Falling within Definition
1.
An offer to professional investors within the meaning of section 1 of
Part 1 of Schedule 1 to the Securities and Futures Ordinance (Cap. 571)(including professional investors falling
within paragraph (j) of the definition of professional investor in
that section).
2.
An offer—
(a)
to not more than 50 persons; and
(b)
containing a statement specified in Part 3 of the
Eighteenth Schedule to this Ordinance.
3.
An offer—
(a)
in respect of which the total consideration payable for the shares or
debentures concerned shall not exceed the amount specified in Part
2, or its equivalent in another currency; and
(b)
containing a statement specified in Part 3 of the
Eighteenth Schedule to this Ordinance.
4.
An offer—
(a)
in respect of which the minimum denomination of, or the minimum
consideration payable by any person for, the shares or, in the case of
debentures, the minimum principal amount to be subscribed or purchased, is
not less than the amount specified in Part 3, or its equivalent
in another currency; and
(b)
containing a statement specified in Part 3 of the
Eighteenth Schedule to this Ordinance.
5.
An offer in connection with an invitation made in good faith to enter into
an underwriting agreement.
6.
An offer in connection with a takeover or merger or a share buy-back which
is in compliance with the Codes on Takeovers and Mergers and Share Buy-backs
issued by the Commission as in force from time to time.
(Amended 28 of 2012 ss. 912 & 920)
7.
An offer of shares in a company—
(a)
made—
(i)
for no consideration, to any or all holders of shares in the
company; or
(ii)
as an alternative to a dividend or other distribution, to all
holders of shares of a particular class in the company, provided the
offer is of fully paid-up shares of the same class; and
(b)
containing a statement specified in Part 3 of the
Eighteenth Schedule to this Ordinance.
8.
An offer—
(a)
of shares in or debentures of a company;
(b)
to persons who are qualifying persons in respect of the company
referred to in paragraph (a) or of another company which is a member of the
same group of companies as the company referred to in that
paragraph;
(c)
by—
(i)
the company referred to in paragraph (a);
(ii)
another company which is a member of the same group of companies as
the company referred to in paragraph (a); or
(iii)
the trustees—
(A)
of a trust established by any one or more of the companies
mentioned in subparagraphs (i) and (ii); and
(B)
holding the shares or debentures the subject of the
offer;
(d)
on terms that the only persons who can acquire the shares or debentures
are the qualifying persons to whom they are offered or, if the terms of the
offer so permit, any qualifying person; and
(e)
containing a statement specified in Part 3 of the
Eighteenth Schedule to this Ordinance.
9.
An offer by—
(a)
a charitable institution or trust of a public character mentioned in
section 88 of the Inland Revenue Ordinance (Cap. 112); or
(b)
an educational establishment within the meaning of section
2(1) of the Sex Discrimination Ordinance (Cap. 480),
where—
(c)
the proceeds of the offer will be applied towards the objectives of the
charitable institution or trust, or educational establishment, as the case
may be; and
(d)
the offer contains a statement specified in Part 3 of the
Eighteenth Schedule to this Ordinance.
10.
An offer—
(a)
to members, or applicants for membership, of a club or
association—
(i)
who can reasonably be regarded as having a common interest with
each other and with the club or association in the affairs of the club
or association; and
(ii)
where the proceeds of the offer are to be applied for purposes
which can reasonably be regarded as concerning the affairs of the club
or association; and
(b)
containing a statement specified in Part 3 of the
Eighteenth Schedule to this Ordinance.
11.
An offer—
(a)
in respect of—
(i)
an exchange of shares in the same company which does not result in
an increase in the issued share capital of the company; or
(ii)
an exchange of debentures of the same company which does not result
in an increase in the aggregate principal amount outstanding under the
debentures; and
(b)
containing a statement specified in Part 3 of the
Eighteenth Schedule to this Ordinance.
12.
An offer—
(a)
in connection with a collective investment scheme authorized under
section 104 of the Securities and Futures Ordinance (Cap. 571); and
(b)
in connection with which the issue of each advertisement, invitation or
document has been authorized under section 105 of the Securities
and Futures Ordinance (Cap. 571).
Part 4
Interpretation of Part 1
1.
Any reference to an offer in Part 1—
(a)
includes an offer of any right, option or interest in or in relation to
the shares or debentures the subject of the offer;
(b)
does not include the offer to the extent that it is made to persons who
are outside Hong Kong.
2.
A prospectus, notice, circular, brochure, advertisement, or other document,
still falls within Part 1 if it falls entirely within any combination
of any of sections 1, 2, 5, 6, 7, 8, 9, 10, 11 or 12 of Part
1.
3.
For the purposes of sections 2 and 3 of Part 1, an offer is to be
taken together with any other offer of the same class of shares or
debentures—
(a)
which was made by the same person;
(b)
which was open at any time within the period of 12 months ending with
the date on which the first-mentioned offer is first made; and
(c)
the document issued in respect of which was not a prospectus by virtue
of either of those sections being satisfied.
4.
For the purposes of section 2 of Part 1—
(a)
the making of an offer of shares or debentures to trustees or members
of a partnership or unincorporated association in their capacity as such;
or
(b)
the making of such an offer to any other 2 or more persons
jointly,
is to be treated as the making of an offer to a single
person.
5.
For the purposes of section 7 of Part 1, a holder of shares in a
company, in relation to an offer mentioned in that section, means a person who,
at the close of business on a date—
(a)
specified in the offer; or
(b)
falling within the period of 60 days ending with the date on which the
offer is first made,
is a holder of shares in the company.
6.
For the purposes of this section and section 8 of Part
1—
(a)
qualifying person
(合資格的人
), in relation to a company—(i)
means—
(A)
a bona fide director, employee, officer, consultant, former
director, former employee, former officer or former consultant
of the company;
(B)
a bona fide dependent of any person mentioned in
sub-subparagraph (A);
(ii)
includes the trustees of a trust—
(A)
established by any one or more of the companies mentioned
in section 8(c)(i) and (ii) of Part 1;
and
(B)
which can hold shares or debentures on behalf of any person
referred to in subparagraph (i);
(b)
consultant
(顧問
)
means a person who, pursuant to a contract for services, renders
services to a company
(the
relevant
company)
which are commonly rendered by an employee of—(i)
the relevant company; or
(ii)
a company belonging to the class of companies which
predominantly carry out the same kind of business as the relevant
company;
(c)
dependent
(受養人
), in
relation to a person, means—(i)
the wife, husband, widow or widower of the person; or
(ii)
any child, or stepchild, of the person under the age of 18
years.
7.
The Commission may prepare and publish guidelines in relation to the
provisions of this Schedule.
8.
Guidelines published under section 7 are not subsidiary
legislation.
Eighteenth
Schedule
Warning,
etc. Statements to Be Contained in Certain
Documents
(Eighteenth
Schedule added 30 of 2004 s. 2)
(Format changes—E.R. 1 of
2014)
Part 1
Statement to Be Contained in Prospectus to which Section 38(1) of
this Ordinance Applies
A statement, in a prominent position, if in the English language, in the
following form or a form to the like effect—
“Important
If you are in any doubt about any of the
contents of this prospectus, you should obtain independent professional
advice.”;
and, if in the Chinese language, a statement in the following form or a form to
the like effect—
“重要提示
如你對此招股章程的任何內容有任何疑問，你應尋求獨立專業意見。”.
Part 2
Statement to Be Contained in Prospectus to which Section 342(1) of
this Ordinance Applies
A statement, in a prominent position, if in the English language, in the
following form or a form to the like effect—
“Important
If you are in any doubt about any of the
contents of this prospectus, you should obtain independent professional
advice.”;
and, if in the Chinese language, a statement in the following form or a form to
the like effect—
“重要提示
如你對此招股章程的任何內容有任何疑問，你應尋求獨立專業意見。”.
Part 3
Statement to Be Contained in Certain Offers Specified in Part 1 of
the Seventeenth Schedule
A statement, in a prominent position, if in the English language, in the
following form or a form to the like effect—
“Warning
The contents of this document have not been
reviewed by any regulatory authority in Hong Kong. You are advised to
exercise caution in relation to the offer. If you are in any doubt about any
of the contents of this document, you should obtain independent professional
advice.”;
and, if in the Chinese language, a statement in the following form or a form to
the like
effect—
“警告
本文件的內容未經在香港的規管當局審核。你應就有關要約謹慎行事。如你對本文件的任何內容有任何疑問，你應尋求獨立專業意見。”.
Part 4
Statement to Be Contained in Issue Prospectus, etc. Mentioned in the
Twenty-first Schedule
A statement, in a prominent position, if in the English language, in the
following form or a form to the like
effect—
“Potential investors should read the issue prospectus in
conjunction with the programme prospectus to which it relates in order to
understand the offer to which the documents relate, in particular before making
an application in response to the
offer.”;
and, if in the Chinese language, a statement in the following form or a form to
the like
effect—
“潛在投資者應參閱發行章程並一併參閱與其相關的計劃章程，以明白該文件所關乎的要約，你尤其應該在應有關要約提出申請前參閱上述文件。”.
Part 5
Statement to Be Contained in Amendment to Issue Prospectus Mentioned in the
Twenty-first
Schedule
A statement, in a prominent position, if in the English language, in the
following form or a form to the like
effect—
“Potential investors should read this amendment in
conjunction with the issue prospectus which it amends in order to understand the
offer to which the documents relate, in particular before making an application
in response to the
offer.”;
and, if in the Chinese language, a statement in the following form or a form to
the like
effect—
“潛在投資者應參閱本修訂並一併參閱被修訂的發行章程，以明白該文件所關乎的要約，你尤其應該在應有關要約提出申請前參閱上述文件。”.
Nineteenth
Schedule
(Amended 8 of 2011 s. 23)
Contents and
Publication Requirements of Advertisements Mentioned in Section
38B(2)(e)
of this
Ordinance
(Format changes—E.R. 1 of
2014)
1.
Contents of
advertisement
(1)
The advertisement must contain the following mandatory particulars or
particulars to the like effect—
(a)
a statement that the advertisement is issued by the company to which
the advertisement relates;
(b)
a warning statement that potential investors should read the prospectus
for detailed information about the company and the proposed offering before
deciding whether or not to invest in the shares or debentures concerned;
and
(c)
a statement that the advertisement does not constitute an offer or an
invitation to induce an offer by any person to acquire, subscribe for or
purchase the shares or debentures concerned.
(2)
The advertisement may contain the following discretionary particulars but,
subject to section 38B(2AA) of this Ordinance, no other discretionary
particulars—
(a)
the name of the company to which the advertisement
relates,
the place of incorporation of the company, and if the company has, after its
incorporation, changed its place of domicile on one or more occasions, its
place of domicile on each occasion;
(Amended 14 of 2025 s. 113)
(b)
a description of the shares or debentures offered or proposed to be
offered;
(c)
the dates on which, and the places at which, the prospectus to which
the advertisement relates is or will be available to the public;
(d)
details of the administrative procedures relevant to investors that are
likely to assist their participation in the offer;
(e)
if a listing is being applied for in Hong Kong or elsewhere, a
statement that the company is seeking listing of, and permission to deal in,
the shares or debentures concerned on the stock exchange or stock exchanges
concerned; and
(f)
legends designed to clarify the legal nature of the advertisement if,
but only if, the legends are consistent with—
(i)
the advertisement not being a prospectus; and
(ii)
guidelines published under section 38BA of this
Ordinance.
2.
Language
The advertisement may be in the English language or the Chinese language or
both languages.
Twentieth
Schedule
Amendment of Prospectus Consisting of One
Document
(Twentieth
Schedule added 30 of 2004 s. 2)
(Format changes—E.R. 1 of
2014)
Part 1
Companies
to which Part II of this Ordinance Applies
(Amended 14 of 2025 s. 114)
1.
Amendments
The information contained in—
(a)
a prospectus may only be amended by—
(i)
an addendum to the prospectus; or
(ii)
replacing the prospectus with a new prospectus;
(b)
an addendum to a prospectus may only be amended by—
(i)
a further addendum to the prospectus;
(ii)
replacing the addendum with a new addendum; or
(iii)
replacing the addendum and prospectus with a new
prospectus.
2.
Amendment made pursuant to section 1 is prospectus
3.
Certain amendments made pursuant to section 1 to be read with
prospectus
Where it enables a provision of this Ordinance (including paragraph
3 of the Third Schedule to this Ordinance) to apply to an
amendment made pursuant to section 1(a)(i) or (b)(i) or (ii), the
amendment shall, for the purposes of that application, be read with the
prospectus to which it relates and the addenda, if any, to the
prospectus.
Part 2
Companies
to which Part XII of this Ordinance Applies
(Amended 14 of 2025 s. 114)
1.
Amendments
The information contained in—
(a)
a prospectus may only be amended by—
(i)
an addendum to the prospectus; or
(ii)
replacing the prospectus with a new prospectus;
(b)
an addendum to a prospectus may only be amended by—
(i)
a further addendum to the prospectus;
(ii)
replacing the addendum with a new addendum; or
(iii)
replacing the addendum and prospectus with a new
prospectus.
2.
Amendment made pursuant to section 1 is prospectus
3.
Certain amendments made pursuant to section 1 to be read with
prospectus
Where it enables a provision of this Ordinance (including paragraph
3 of the Third Schedule to this Ordinance) to apply to an
amendment made pursuant to section 1(a)(i) or (b)(i) or (ii), the
amendment shall, for the purposes of that application, be read with the
prospectus to which it relates and the addenda, if any, to the
prospectus.
Twenty-first
Schedule
Provisions
in Accordance with which a Prospectus May Consist of More Than One
Document
(Twenty-first
Schedule added 30 of 2004 s. 2)
(Format changes—E.R. 1 of
2014)
Part 1
Prospectus to which the Provisions of Part II of this Ordinance Apply
1.
Interpretation
In this Part—
issue prospectus
(發行章程
) means that prospectus to which the
provisions of Part II of this Ordinance apply contained in the document, or
series of documents, mentioned in section 2(1)(b);programme prospectus
(計劃章程
) means that prospectus to which the
provisions of Part II of this Ordinance apply contained in the document
mentioned in section 2(1)(a);relevant information
(有關資料
), in relation to a prospectus, means such
information as is required by the provisions of sections 37 to 44B
of, and the Third Schedule to, this Ordinance to be contained in the
prospectus. 2.
Prospectus consisting of more than one document
(1)
A prospectus may consist of—
(a)
a document containing such relevant information as the issuer of
the document thinks fit (but excluding the price, or any formula for
calculating the price, of the shares or debentures to which the
prospectus relates); and
(b)
a document, or series of documents, containing such relevant
information as is not already contained in the document mentioned in
paragraph (a).
(2)
For the avoidance of doubt, it is hereby declared that an issue
prospectus does not have to be issued at the same time as the programme
prospectus concerned is issued.
3.
Amendments
The information contained in—
(a)
a programme prospectus may only be amended by—
(i)
an addendum to the programme prospectus;
(ii)
replacing the programme prospectus with a new programme prospectus;
or
(iii)
the issue prospectus concerned or an addendum to the issue
prospectus;
(b)
an issue prospectus may only be amended by—
(i)
an addendum to the issue prospectus; or
(ii)
replacing the issue prospectus with a new issue
prospectus;
(c)
an addendum to a programme prospectus may only be amended by—
(i)
a further addendum to the programme prospectus;
(ii)
replacing the addendum with a new addendum;
(iii)
replacing the addendum and programme prospectus with a new
programme prospectus; or
(iv)
the issue prospectus concerned or an addendum to the issue
prospectus;
(d)
an addendum to an issue prospectus may only be amended by—
(i)
replacing the addendum with a new addendum; or
(ii)
replacing the addendum and issue prospectus with a new issue
prospectus.
4.
Amendment made pursuant to section 3 is prospectus
5.
Certain amendments made pursuant to section 3 to be read with
other related documents
Where it enables a provision of this Ordinance (including paragraph
3 of the Third Schedule to this Ordinance) to apply to an
amendment made pursuant to section 3, the amendment shall, for the
purposes of that application, be read with all or any of the programme
prospectus to which it relates and the addenda, if any, to the programme
prospectus and the issue prospectus to which it relates and the addenda, if any,
to the issue prospectus, as the case requires.
6.
Warning
(1)
Every issue prospectus (including a new issue prospectus mentioned in
section 3(b)(ii) or
(d)(ii))
and any form of application must contain a statement specified in Part
4 of the Eighteenth Schedule to this
Ordinance.
(2)
Any amendment made pursuant to section 3(b)(i) must contain
a statement specified in Part 5 of the Eighteenth
Schedule to this Ordinance.
7.
Availability
of programme prospectus,
etc.
The issuer of a programme prospectus must make arrangements for—
(a)
the programme prospectus and its addenda, if any; and
(b)
the issue prospectus concerned and its addenda, if any,
to be readily available to investors and potential investors throughout
the period during which the shares or debentures to which the issue prospectus
relates are offered or sold to the public.
8.
Cessation of offer to which programme prospectus, etc. relates
The shares or debentures the subject of a programme prospectus and its
addenda, if any, and the issue prospectus concerned and its addenda, if any,
shall cease to be offered or sold to the public on and after the date
of—
(a)
the publication of the next annual report and financial statements of
the company to which the programme prospectus relates after the publication
of the programme prospectus;
(b)
the first anniversary of the date of publication of the programme
prospectus; or
(c)
if there is a guarantor corporation, within the meaning of section
38(8) of this Ordinance, in relation to the offer concerned, the
publication of the next annual report and financial statements of the
guarantor corporation after the publication of the programme
prospectus,
whichever is the earlier.
(Amended 28 of 2012 ss. 912 & 920)
9.
Application of section 38C of this Ordinance
It is hereby declared that, where section 38C of this Ordinance
has been complied with in respect of a programme prospectus which has been
issued, the issue of any issue prospectus concerned does not of itself require
that section to again be complied with in respect of the programme
prospectus.
Part 2
Prospectus to which the Provisions of Part XII of this Ordinance
Apply
1.
Interpretation
In this Part—
issue prospectus
(發行章程
) means that prospectus to which the
provisions of Part XII of this Ordinance apply contained in the document, or
series of documents, mentioned in section 2(1)(b);programme prospectus
(計劃章程
) means that prospectus to which the
provisions of Part XII of this Ordinance apply contained in the document
mentioned in section 2(1)(a);relevant information
(有關資料
), in relation to a prospectus, means such
information as is required by the provisions of Part XII of, and the Third
Schedule to, this Ordinance to be contained in the prospectus.2.
Prospectus consisting of more than one document
(1)
A prospectus may consist of—
(a)
a document containing such relevant information as the issuer of
the document thinks fit (but excluding the price, or any formula for
calculating the price, of the shares or debentures to which the
prospectus relates); and
(b)
a document, or series of documents, containing such relevant
information as is not already contained in the document mentioned in
paragraph (a).
(2)
For the avoidance of doubt, it is hereby declared that an issue
prospectus does not have to be issued at the same time as the programme
prospectus concerned is issued.
3.
Amendments
The information contained in—
(a)
a programme prospectus may only be amended by—
(i)
an addendum to the programme prospectus;
(ii)
replacing the programme prospectus with a new programme prospectus;
or
(iii)
the issue prospectus concerned or an addendum to the issue
prospectus;
(b)
an issue prospectus may only be amended by—
(i)
an addendum to the issue prospectus; or
(ii)
replacing the issue prospectus with a new issue
prospectus;
(c)
an addendum to a programme prospectus may only be amended by—
(i)
a further addendum to the programme prospectus;
(ii)
replacing the addendum with a new addendum;
(iii)
replacing the addendum and programme prospectus with a new
programme prospectus; or
(iv)
the issue prospectus concerned or an addendum to the issue
prospectus;
(d)
an addendum to an issue prospectus may only be amended by—
(i)
replacing the addendum with a new addendum; or
(ii)
replacing the addendum and issue prospectus with a new issue
prospectus.
4.
Amendment made pursuant to section 3 is prospectus
5.
Certain amendments made pursuant to section 3 to be read with
other related documents
Where it enables a provision of this Ordinance (including paragraph
3 of the Third Schedule to this Ordinance) to apply to an
amendment made pursuant to section 3, the amendment shall, for the
purposes of that application, be read with all or any of the programme
prospectus to which it relates and the addenda, if any, to the programme
prospectus and the issue prospectus to which it relates and the addenda, if any,
to the issue prospectus, as the case requires.
6.
Warning
(1)
Every issue prospectus (including a new issue prospectus mentioned in
section 3(b)(ii) or
(d)(ii))
and any form of application must contain a statement specified in Part
4 of the Eighteenth Schedule to this
Ordinance.
(2)
Any amendment made pursuant to section 3(b)(i) must contain
a statement specified in Part 5 of the Eighteenth
Schedule to this Ordinance.
7.
Availability
of programme prospectus,
etc.
The issuer of a programme prospectus must make arrangements for—
(a)
the programme prospectus and its addenda, if any; and
(b)
the issue prospectus concerned and its addenda, if any,
to be readily available to investors and potential investors throughout
the period during which the shares or debentures to which the issue prospectus
relates are offered or sold to the public.
8.
Cessation of offer to which programme prospectus, etc. relates
The shares or debentures the subject of a programme prospectus and its
addenda, if any, and the issue prospectus concerned and its addenda, if any,
shall cease to be offered or sold to the public on and after the date
of—
(a)
the publication of the next annual report and financial statements of
the company to which the programme prospectus relates after the publication
of the programme prospectus;
(b)
the first anniversary of the date of publication of the programme
prospectus; or
(c)
if there is a guarantor corporation, within the meaning of section
342(8) of this Ordinance, in relation to the offer concerned, the
publication of the next annual report and financial statements of the
guarantor corporation after the publication of the programme
prospectus,
whichever is the earlier.
(Amended 28 of 2012 ss. 912 & 920)
9.
Application of section 342B of this Ordinance
It is hereby declared that, where section 342B of this
Ordinance has been complied with in respect of a programme prospectus which has
been issued, the issue of any issue prospectus concerned does not of itself
require that section to again be complied with in respect of the programme
prospectus.
Twenty-second
Schedule
Persons
Specified for the Purposes of Section 40 of this
Ordinance
(Format changes—E.R. 1 of
2014)
1.
Persons who subscribe for or purchase shares or debentures pursuant to an offer
in a prospectus.
2.
Persons who by means of an agent acquire shares or debentures pursuant to an
offer in a prospectus.
3.
Persons who acquire shares or debentures pursuant to arrangements made
between—
(a)
the issuer or vendor of the shares or debentures; and
(b)
intermediaries appointed for the purposes of the offer.
Twenty-third
Schedule
Parent and
Subsidiary
Undertakings
(Format changes—E.R. 1 of
2014)
1.
Interpretation
(1)
For the purposes of the provisions specified under section 2B(3)
of this Ordinance and this Schedule—
parent company
(母公司
) means a parent undertaking which is a company;shares
(股
、股份
) shall be construed as a reference
to—(a)
in relation to an undertaking with a share capital, the allotted
shares;
(b)
in relation to an undertaking with capital in the form other than
share capital, the rights to share in the capital of the undertaking;
and
(c)
in relation to an undertaking without any capital, the
interest—
(i)
conferring any right to share in the profits or liability to
contribute to the losses of the undertaking; or
(ii)
giving rise to an obligation to contribute to the debts or
expenses of the undertaking in the event of a winding up;
undertaking
(企業
)
means—(a)
a body corporate;
(b)
a partnership; or
(c)
an unincorporated association carrying on a trade or business,
whether for profit or not.
(2)
In construing any references to an undertaking which is not a company for
the purposes of this Ordinance, other expressions appropriate to companies shall
be construed, in relation to that undertaking, as references to the
corresponding persons, officers, documents or organs, as the case may be,
appropriate to undertakings of that description.
2.
Parent undertaking and subsidiary undertaking
(1)
An
undertaking is a parent undertaking (parent undertaking) in
relation to another undertaking (subsidiary undertaking)
if—
(a)
(i)
in the case where both the parent undertaking and the subsidiary
undertaking are bodies corporate, the subsidiary undertaking is a
subsidiary of the parent undertaking by virtue of section
2(4), (5), (6) and (7) of this Ordinance; or
(ii)
in any other case, the parent undertaking—
(A)
holds a majority of the voting rights in the subsidiary
undertaking;
(B)
is a member of the subsidiary undertaking and has the right to
appoint or remove a majority of its board of directors; or
(C)
is a member of the subsidiary undertaking and controls alone,
pursuant to an agreement with other shareholders or members, a
majority of the voting rights in the subsidiary undertaking;
or
(b)
the parent undertaking has the right to exercise a dominant influence
over the subsidiary undertaking by virtue of—
(i)
the provisions contained in any document constituting or regulating
the subsidiary undertaking; or
(Amended 28 of 2012 ss. 912 & 920)
(ii)
a control contract.
(2)
For the purposes of subsection (1)(a)(ii), an undertaking shall
be treated as a member of another undertaking (the relevant
undertaking), if—
(a)
any of its subsidiary undertakings is a member of the relevant
undertaking; or
(b)
any shares in the relevant undertaking are held by a person acting on
behalf of the first-mentioned undertaking or any of its subsidiary
undertakings.
(3)
An
undertaking shall be treated as the parent undertaking of another undertaking if
a subsidiary undertaking of the first-mentioned undertaking is, or is to be
treated as, the parent undertaking of that other undertaking; and references to
a subsidiary undertaking of the first-mentioned undertaking shall be construed
accordingly.
(4)
Sections 3 to 10 contain provisions explaining expressions used
in this section and otherwise supplementing this section.
3.
Voting rights in undertaking
(1)
For the purposes of section 2(1)(a)(ii)(A) and (C), the
references to the voting rights in an undertaking shall be construed as
references to the rights conferred on shareholders in respect of their shares
or, in the case of an undertaking not having a share capital, on members, to
vote at general meetings of the undertaking on all, or substantially all,
matters.
(2)
For the purposes of subsection (1), where an undertaking which does not
have general meetings at which matters are decided by the exercise of voting
rights, the references to holding a majority of the voting rights in the
undertaking shall be construed as references to having the right under the
constitution of the undertaking to direct the overall policy of the undertaking
or to alter the terms of its constitution.
4.
Right to appoint or remove majority of directors
For the purposes of section 2(1)(a)(ii)(B)—
(a)
the reference to the right to appoint or remove a majority of the board of
directors shall be construed as a reference to the right to appoint or remove
directors holding a majority of the voting rights at meetings of the board on
all, or substantially all, matters;
(b)
an undertaking shall be treated as having the right to appoint to a
directorship if—
(i)
a person’s appointment to it follows necessarily from his appointment
as a director of the undertaking; or
(ii)
the directorship is held by the undertaking itself; and
(c)
a right to appoint or remove a directorship which is exercisable only with
the consent of another person shall be left out of account unless no other
person has a right to appoint or, as the case may be, remove in relation to that
directorship.
5.
Right to exercise dominant influence
For the purposes of section 2(1)(b)—
(a)
an undertaking shall not be regarded as having the right to exercise a
dominant influence over another undertaking unless it has a right to give
directions with respect to the operating and financial policies of that other
undertaking which the directors are, or a majority of the directors is, obliged
to comply with whether or not they are for the benefit of that other
undertaking; and
(b)
a
control contract
(控制合約
) means a contract in writing conferring such a right which
is—(i)
of a kind authorized by any document constituting or regulating the
undertaking in relation to which the right is exercisable; and
(Amended 28 of 2012 ss. 912 & 920)
(ii)
permitted
by—
(Amended 14 of 2025 s. 115)
(A)
unless sub-subparagraph (B) applies—the law under which that
undertaking is established; or
(B)
if that undertaking has changed its place of domicile after its
establishment—the law of the latest place of domicile of that
undertaking.
(Amended 14 of 2025 s. 115)
6.
Rights exercisable only in certain circumstances
(1)
For the purposes of this Schedule but without prejudice to
subsection (2), rights which are exercisable only in certain circumstances shall
be taken into account only—
(a)
when the circumstances have arisen, and for so long as they continue to
obtain; or
(b)
when the circumstances are within the control of the person having the
rights.
(2)
Rights which are normally exercisable but are temporarily incapable of
exercise shall continue to be taken into account.
7.
Rights held by one person on behalf of another
For the purposes of this Schedule—
(a)
rights held by a person in a fiduciary capacity shall be treated as not
held by him;
(b)
rights held by a person as nominee for another shall be treated as held by
the other; and
(c)
rights shall be treated as held as nominee for another if they are
exercisable only on his instructions or with his consent.
8.
Rights attached to shares by way of security
Where any rights referred to in this Schedule are attached to shares
held by way of security, the rights shall be treated as held by the person providing
the security, if—
(a)
apart from the right to exercise them for the purpose of preserving the
value of the security, or of realizing it, the rights are exercisable only in
accordance with his instructions; or
(b)
the shares are held in connection with the granting of loans as part of
normal business activities and apart from the right to exercise them for the
purpose of preserving the value of the security, or of realizing it, the rights
are exercisable only in his interests.
9.
Rights attributed to parent undertaking
(1)
For the purposes of section 2, rights shall be treated as held
by a parent undertaking if they are held by any of its subsidiary
undertakings.
(2)
(3)
For the purposes of section 8, rights shall be treated as being
exercisable in accordance with the instructions of or in the interests of an
undertaking if they are exercisable in accordance with the instructions of or,
as the case may be, in the interests of any group undertaking.
(4)
In this section,
group undertaking
(企業集團
), in relation to an undertaking
(relevant undertaking), means an undertaking which
is—(a)
a parent undertaking or subsidiary undertaking of the relevant
undertaking; or
(b)
a subsidiary undertaking of any parent undertaking of the relevant
undertaking.
10.
Supplementary
References in any provision of sections 7, 8 and
9 to rights held by a person include rights falling to be treated as
held by him by virtue of any other provision of those sections but not rights which
by virtue of any such provision are to be treated as not held by him.
Twenty-fourth
Schedule
(Repealed 28 of 2012 ss. 912 & 920)
Schedule
25
Powers
of liquidator in winding
up
(Schedule
25 added 14 of 2016 s. 118)
Part 1
1.
Pay a class of creditors in full.
2.
Make a compromise or arrangement with—
(a)
creditors or persons claiming to be creditors; or
(b)
persons having or alleging themselves to have any claim (present or
future, certain or contingent, ascertained or sounding only in damages)
against the company, or for which the company may be rendered
liable.
3.
To—
(a)
compromise, on such terms as are agreed—
(i)
calls and liabilities to calls, debts, and liabilities capable of
resulting in debts, and claims (present or future, certain or
contingent, ascertained or sounding only in damages) subsisting or
supposed to subsist between the company and—
(A)
a contributory;
(B)
an alleged contributory; or
(C)
any other debtor or person apprehending liability to the
company; and
(ii)
questions in any way relating to or affecting the assets or the
winding up of the company; and
(b)
take any security for the discharge of any call, debt, liability or
claim, and give a complete discharge in respect of it.
Part 2
1.
Bring or defend any action or other legal proceedings in the name and on
behalf of the company.
2.
Carry on the business of the company, so far as may be necessary for its
beneficial winding up.
Part
3
1.
Sell the real and personal property and things in action of the company by
public auction or private contract, with power to transfer the whole of the
property and things in action to any person or company, or to sell them in
parcels.
2.
Do all acts and execute, in the name and on behalf of the company, all
deeds, receipts and other documents, and for that purpose use, when necessary,
the company’s seal.
3.
Prove, rank, and claim in the bankruptcy, insolvency, or sequestration of
any contributory, for any balance against the contributory’s estate, and receive
dividends in the bankruptcy, insolvency, or
sequestration
in respect of that balance, as a separate debt due from the bankrupt or
insolvent, and rateably with the other separate creditors.
4.
Draw, accept, make, and endorse any bill of exchange or promissory note in
the name and on behalf of the company, with the same effect with respect to the
liability of the company as if the bill or note had been drawn, accepted, made,
or endorsed by or on behalf of the company in the course of its
business.
5.
Raise on the security of the assets of the company any money
requisite.
6.
Take out in the official name of the liquidator letters of administration
to any deceased contributory, and do in the official name of the liquidator any
other act necessary for obtaining payment of any money due from a contributory
or the estate of the contributory that cannot be conveniently done in the name
of the company. In all such cases the money due is deemed, for the purpose of
enabling the liquidator to take out the letters of administration or recover the
money, to be due to the liquidator.
7.
Appoint an agent to do any business that the liquidator is unable to do in
person.
8.
Employ a solicitor to assist the liquidator in performing the liquidator’s
duties.
9.
Do all other things as may be necessary for winding up the affairs of the
company and distributing its
assets.
Schedule
26
[s. 368]
Transitional
and Saving Provisions Relating to Companies (Winding Up and Miscellaneous Provisions)
(Amendment) Ordinance
2016
(Schedule
26 added 14 of 2016 s. 177)
1.
Interpretation
In this Schedule—
Amendment Ordinance
(《修訂條例》
) means the Companies (Winding Up and
Miscellaneous Provisions) (Amendment) Ordinance 2016 (14 of
2016);commencement date
(生效日期
) means the date of commencement of the Amendment Ordinance;former
(原有
), when it
appears in conjunction with a reference to a section described by a number or a
combination of a number and a letter, means the provision of the former Ordinance
that is referred to as a section described by that number or that combination of
number and letter;former Ordinance
(《原有條例》
) means this Ordinance as in force immediately before the
commencement date;former Rules
(《原有規則》
) means the Winding-up Rules as in force immediately before the
commencement date;2.
Public examination under section 168IA
(1)
This section applies where, before the commencement date, an application
has been made under the former section 168IA for the court to
exercise any of its powers under that section.
(2)
The following provisions and forms continue to apply in relation to the
proceedings and examination arising from the application—
(a)
the former section 168IA; and
(3)
The following provisions do not apply in relation to the proceedings and
examination arising from the application—
(a)
sections 168IB and 286E; and
(b)
rule 51B of the Winding-up Rules.
3.
Liability to contribute under section 170A
Section 170A does not apply in relation to a payment out of capital
in respect of the redemption or buy-back of a company’s own shares that has taken
place before the commencement date.
4.
Demand to pay debts under section 178(1)(a)
If a demand was served under the former section 178(1)(a) before the
commencement date, the demand continues to have effect on and after the commencement
date as if that former section had not been amended by the Amendment
Ordinance.
5.
Statement of affairs required under section 190
If the petition for the winding up of a company has been presented before the
commencement date, then in relation to the winding up and the appointment of a
provisional liquidator in connection with the petition—
(b)
section 190A does not apply.
6.
If the petition for the winding up of a company has been presented before the
commencement date, then in relation to the winding up—
(a)
(b)
sections 193(4), (5), (6) and (7), 194(1)(da) and (6) and
196(1B) do not apply.
7.
Powers of liquidators under section 199
If the petition for the winding up of a company has been presented before the
commencement date, then in relation to the winding up—
(a)
the former section 199 continues to apply; and
(b)
8.
Release of liquidators under section 205
For a liquidator appointed before the commencement date, section
205(3)(a) does not apply in relation to the release of the
liquidator.
9.
Meetings of creditors and contributories to consider appointment of committee
of inspection; constitution of committee of inspection
(1)
Subject to subsection (2), if the winding up of a company has commenced
before the commencement date, the former sections 206 and
207(1) continue to apply in relation to the winding up of the
company.
(2)
Subject to section 11(2) of this Schedule, section
206(6) applies in relation to the membership of, and representation at
a meeting of, a committee of inspection, irrespective of when the winding up of
the company commenced.
10.
Proceedings of committee of inspection
(1)
Subject to subsections (2), (3) and (4), sections 206A and
207 apply in relation to the proceedings of a committee of
inspection, irrespective of when the winding up of the company
commenced.
(2)
In respect of a committee of inspection appointed before the commencement
date, if the first meeting of the committee has not been held before that
date—
(a)
the former section 207(2) continues to apply in relation to
the first meeting of the committee; and
(b)
section 206A(2) does not apply in relation to that
committee.
(3)
If the winding up of a company has commenced before the commencement date,
then in relation to the proceedings of the committee of inspection—
(a)
the former section 207(7) continues to apply; and
(b)
section 207(7A) and (7B) does not apply.
(4)
If the winding up of a company has commenced before the commencement date,
the former section 207(8) continues to apply in relation to the
proceedings of the committee of inspection.
11.
Representatives of members of committee of inspection
(1)
Subject to subsection (2), section 207A applies in relation to
the representatives of the members of a committee of inspection, irrespective of
when the winding up of the company commenced.
(2)
If a member of the committee of inspection has validly appointed a
representative before the commencement date—
(a)
section 207A(1), (2), (3) and (5) does not operate to
invalidate the appointment; and
(b)
section 207A(4), (6) and (7) does not apply to the
representative.
12.
Remote attendance and written resolutions of meeting of committee of
inspection, etc.
13.
Travelling expenses of members of committee of inspection or representatives of
members
(1)
Subject to subsection (2), section 207L applies in relation to
the travelling expenses of a member of a committee of inspection or the
representative of a member referred to in that section, irrespective of when the
winding up of the company commenced.
(2)
Section 207L does not apply to any expenses incurred before the
commencement date.
14.
Examination under former section 221
(1)
This section applies where, before the commencement date—
(a)
an application has been made pursuant to the former section
221 for the court to exercise any of its powers under that
section; or
(b)
the court has exercised any of its powers under the former section
221.
(2)
The following provisions continue to apply in relation to the proceedings
and examination arising from the application or exercise of power—
(a)
the former sections 221 and 222A; and
(b)
(3)
The following provisions and forms do not apply in relation to the
proceedings and examination arising from the application or exercise of
power—
(a)
(4)
Section 360G applies for the purposes of the application or
exercise of power as if the references to sections 286B,
286C and 286D in it were a reference to the former
section 221.
15.
Public examination under former section 222
(1)
This section applies where, before the commencement date, an application
has been made under rule 50 of the former Rules to fix a day for the
consideration of a report submitted under section 191(2).
(2)
The following provisions and forms continue to apply in relation to the
proceedings and examination arising from the application—
(a)
(3)
The following provisions do not apply in relation to the proceedings and
examination arising from the application—
(a)
16.
Regulating order under section 227A, etc.
(1)
If the petition for the winding up of a company has been presented before
the commencement date, the former sections 227A, 227B and
227E continue to apply in relation to that winding up.
(2)
If the petition for the winding up of a company is presented on or after the
commencement date, but the winding up has commenced before that date,
section 227B(2) applies as if—
(a)
the reference to section 206(1) and (2) in it were a
reference to the former section 206(1) and (2); and
(b)
the reference to section 207(6), (7), (7A) and (7B) in it
were a reference to the former section 207(6) and (7).
17.
Voluntary winding up under former section 228(1)(c)
(1)
If a company has passed a special resolution under the former section
228(1)(c) before the commencement date, then—
(a)
the former section 228(1) continues to apply in relation to
the winding up; and
(b)
in the winding up of the company, the expression a resolution for
voluntary winding up continues to have the meaning given by
the former section 228(2).
(2)
No resolution for voluntary winding up of a company may be passed on or
after the commencement date under the former section 228(1)(c) even
if, before the commencement date—
(a)
notices of the meeting to consider the resolution have been sent to
members of the company; or
(b)
the relevant written resolution has been circulated among the
members.
18.
Voluntary winding up under section 228A
(1)
If the winding up of a company has commenced before the commencement date,
then—
(a)
subject to subsections (2) and (3), the former section 228A
and the provisions in the Twelfth Schedule to the former
Ordinance relating to that section continue to apply; and
(b)
(2)
Section 228A(11) applies if a provisional liquidator appointed
under the former section 228A(5)(b) ceases to act as such on or after
the commencement date.
(3)
Section 228A(12) applies to a notice of appointment delivered
under the former section 228A(10) if, on or after the commencement
date, any change occurs in the particulars in that notice.
19.
Notice of resolution to wind up voluntarily under section
229
If a company has passed a resolution for voluntary winding up under the former
section 228 before the commencement date, the former section
229 continues to apply in relation to the company’s obligation to give
notice of the resolution.
20.
Cases where former section 237A and related provisions
apply
(1)
This section applies if—
(a)
a members’ voluntary winding up has commenced before the commencement
date; and
(b)
subsequently, the liquidator of the company is of the opinion that the
company will not be able to pay its debts in full within the period stated
in the certificate or declaration mentioned in the former section
237A.
(2)
In relation to the winding up—
(a)
the former sections 237A, 238 and 239
and the provisions in the Twelfth Schedule to the former
Ordinance relating to those sections continue to apply;
(b)
sections 237B and 240(2) do not apply;
(c)
the former section 239A continues to apply; and
(d)
section 240(1) is to be read as if it is not subject to
section 240(2).
21.
Provisions relating to liquidators where former section 237A
applies
(1)
This section applies to a members’ voluntary winding up commenced before the
commencement date—
(a)
in relation to which the former section 237A applies because
of section 20 of this Schedule; and
(b)
in respect of which a meeting of the creditors summoned by the
liquidator under the former section 237A is held on or after the
commencement date.
(2)
If the person holding the office of liquidator of the company is
disqualified under section 262B(3) from acting as liquidator of the
company, then—
(a)
despite sections 262A and 262B and rule
155 of the Winding-up Rules, the person may continue to act as
liquidator of the company until the meeting is concluded, but solely for the
purposes of complying with the former section 237A; and
(b)
immediately after the conclusion of the meeting, the person ceases to
be the liquidator of the company and for the purposes of this Ordinance, the
Winding-up Rules and the Companies Ordinance (Cap.
622) is taken to have been removed from that office.
(3)
Sections 262A, 262B, 262C, 262D,
262E, 262F and 262G and the provisions in
the Twelfth Schedule relating to those sections apply in relation
to—
(a)
the appointment of a liquidator made at a meeting of creditors held
under the former section 237A(2) if notices of the meeting are
sent on or after the commencement date; and
(b)
the liquidator appointed at that meeting.
(4)
The former section 278 continues to apply and sections
262A, 262B, 262C, 262D,
262E, 262F and 262G and the provisions in
the Twelfth Schedule relating to those sections do not apply in
relation to—
(a)
the appointment of a liquidator made at a meeting of creditors held
under the former section 237A(2) if notices of the meeting have
been sent before the commencement date; and
(b)
the liquidator appointed at that meeting.
22.
Provisions applicable to creditors’ voluntary winding up (former section
241 and section 243A)
If notices of a meeting of the company at which a resolution for voluntary
winding up is to be proposed have been sent before the commencement date and the
winding up is intended to be a creditors’ voluntary winding up—
(a)
the former section 241 continues to apply in relation to the
meeting of creditors of the company; and
(b)
section 243A and the provisions in the Twelfth Schedule
relating to that section do not apply in relation to the powers and duties
of a person nominated by the company to be liquidator in that winding
up.
23.
Appointment of committee of inspection
(1)
Subject to subsections (2) and (3), if the winding up of a company has
commenced before the commencement date, the former section 243
continues to apply in relation to the winding up of the company.
(2)
Without limiting sections 10, 11, 12 and
13 of this Schedule, section 243(2) applies in
relation to a committee of inspection appointed in a creditors’ voluntary
winding up, irrespective of when the winding up of the company
commenced.
(3)
Subject to section 11(2) of this Schedule, section
243(3) applies in relation to the membership of, and representation at
a meeting of, a committee of inspection, irrespective of when the winding up of
the company commenced.
24.
Removal of liquidator under section 244A
Section 244A does not apply to a liquidator appointed before the
commencement date.
25.
Directors’ powers before nomination or appointment of liquidator under
section 250A
(1)
This section applies where—
(a)
notices of a meeting of a company at which a resolution for voluntary
winding up is to be proposed have been sent before the commencement date;
and
(b)
the resolution is passed at the meeting, irrespective of when the
meeting is held.
(2)
Section 250A and the provision in the Twelfth Schedule
relating to that section do not apply in relation to the directors’ powers
before nomination or appointment of liquidator in the winding up.
26.
Powers and duties of liquidator in voluntary winding up under section
251
In a voluntary winding up, if the winding up has commenced before the
commencement date, then in relation to the powers and duties of the liquidator in
that winding up—
(a)
the former section 251 continues to apply; and
(b)
Schedule 25 does not apply.
27.
Notice by liquidator of appointment or ceasing to act under section
253
(1)
If a liquidator was appointed before the commencement date, the liquidator
is to comply with the requirements under the former section
253(1).
(2)
If a person appointed as liquidator has ceased to act before the
commencement date, the person is to comply with the requirements under the
former section 253(2).
(3)
If, before the commencement date, a change has occurred in the particulars
given in a notice delivered to the Registrar under the former section
253(1)(b), the liquidator is to comply with the requirements under the
former section 253(3).
(4)
To avoid doubt, section 253 does not apply to a provisional
liquidator appointed under the former section 228A(5)(b), just as the
former section 253 did not apply to a provisional liquidator
appointed under the former section 228A(5)(b).
28.
Audit of liquidator’s accounts in voluntary winding up
(1)
Subject to subsection (2), section 255A(2) applies in relation
to the liquidator’s accounts, irrespective of when the winding up of the company
commenced.
(2)
If a resolution has been passed in accordance with the former section
255A(2) before the commencement date, that section continues to apply
in relation to the liquidator’s account.
29.
Application of former sections 196(5) and 278 to
liquidators and their appointment
(1)
The former sections 196(5) and 278 (and the provision
in the Twelfth Schedule to the former Ordinance relating to the
former section 278) continue to apply and sections 262A,
262B, 262C, 262D, 262E,
262F and 262G (and the provisions in the Twelfth
Schedule relating to sections 262A, 262B,
262C, 262D, 262E, 262F and
262G) do not apply in relation to—
(a)
the appointment of a liquidator—
(i)
made before the commencement date;
(ii)
to be made at a meeting held on or after the commencement date but
notices of the meeting have been sent before that date; or
(iii)
to be made by the court on or after the commencement date in
response to an application made before that date; and
(b)
a liquidator appointed—
(i)
before the commencement date;
(ii)
at a meeting mentioned in paragraph (a)(ii); or
(iii)
by the court in response to an application mentioned in paragraph
(a)(iii).
(2)
Sections 262A, 262B, 262C, 262D,
262E, 262F and 262G and the provisions in
the Twelfth Schedule relating to those sections do not apply in
relation to—
(a)
the appointment of a provisional liquidator—
(i)
made before the commencement date;
(ii)
to be made at a meeting held on or after the commencement date but
notices of the meeting have been sent before that date; or
(iii)
to be made by the court on or after the commencement date in
response to an application made before that date; and
(b)
a provisional liquidator appointed—
(i)
before the commencement date;
(ii)
at a meeting mentioned in paragraph (a)(ii); or
(iii)
by the court in response to an application mentioned in paragraph
(a)(iii).
(3)
Sections 262A, 262B, 262C, 262D,
262E, 262F and 262G and the provisions in
the Twelfth Schedule relating to those sections do not apply in
relation to—
(a)
the nomination for appointment of a liquidator—
(i)
made before the commencement date; or
(ii)
to be made at a meeting held on or after the commencement date but
notices of the meeting have been sent before that date; and
(b)
a liquidator nominated for appointment—
(i)
before the commencement date; or
(ii)
at a meeting mentioned in paragraph (a)(ii).
30.
Effect of transactions at an undervalue, unfair preferences and floating
charges (sections 265A to 267A)
(1)
(a)
a transaction at an undervalue entered into by a company before the
commencement date;
(b)
an unfair preference given by a company before the commencement date;
or
(c)
a charge created on the undertaking or property of a company before the
commencement date.
(2)
Section 265D does not apply in relation to a transaction at an
undervalue entered into by a company before the commencement date.
(3)
Sections 266 and 266A do not apply in relation to
anything done or suffered to be done by a company before the commencement date,
and the former sections 266, 266A and 266B
continue to apply in relation to that thing.
(4)
(a)
a transaction at an undervalue entered into by a company before the
commencement date; or
(b)
an unfair preference given by a company before the commencement
date.
(5)
Sections 267 and 267A do not apply in relation to a
charge created on the undertaking or property of a company before the
commencement date, and the former section 267 continues to apply in
relation to the charge.
(6)
Section 360G applies—
(a)
(b)
for the purposes of a charge created on the undertaking or property of
a company before the commencement date, as if the references to
sections 265A, 265B, 265C,
267 and 267A in it were a reference to the former
section 267.
(7)
In paragraph 3 of Part II of the Fifteenth Schedule,
the reference to section 266 includes the former section
266.
31.
Liability for not keeping proper records under section 274
(1)
In this section—
record keeping period
(存檔期
), in relation to a company being wound up,
means the shorter of the following periods—(a)
the period of 2 years immediately preceding the commencement of the
winding up;
(b)
the period between the incorporation of the company and the
commencement of the winding up.
(2)
If the winding up of a company commences before the expiry of the period of
2 years beginning on the first day of the company’s first financial year that
begins on or after the commencement date, section 274 is to have
effect as provided in subsection (3).
(3)
For the purposes of subsection (2), section 274 is to be read as
if, for a part of the record keeping period that coincides (whether in whole or
in part) with a financial year of the company that begins before the
commencement date—
(a)
“proper books of accounts” were substituted for “accounting records
that comply with section 373(2) and (3) of the Companies
Ordinance (Cap. 622)”; and
(b)
the former section 274(2) had not been repealed.
32.
Power of court to assess damages against delinquent officer, etc. under
section 276
For a person who has acted as a liquidator of a company and who has been
released under section 205, section 276(1B) does not apply in
relation to an application made under section 276(1) in respect of the
person if the person was appointed as liquidator before the commencement
date.
33.
Electronic communications by liquidators
Division 6 of Part V and the provision in the Twelfth Schedule
relating to section 296E(7) apply in respect of communications by
liquidators to other persons, irrespective of when the winding up of the company
commenced.
34.
Demand to pay debts under former section 327(4)(a)
If a demand was served under the former section 327(4)(a) before the
commencement date, the demand continues to have effect on and after the commencement
date as if that former section had not been amended by the Amendment
Ordinance.