Cap. 426

An Ordinance to establish a registration system for certain occupational retirement schemes, to ensure that such schemes are properly regulated, to make certain matters relating to such schemes whose proper law is not the law of Hong Kong justiciable in the Court of First Instance, and to provide for related matters. (Amended 25 of 1998 s. 2) [15 October 1993] L.N. 407 of 1993(Format changes—E.R. 5 of 2021) (Enacting provision omitted—E.R. 2 of 2014) Part I Preliminaries and Restriction on Operation of Occupational Retirement Schemes 1. Short title (Amended E.R. 5 of 2021)(1) This Ordinance may be cited as the Occupational Retirement Schemes Ordinance.(2)-(4) (Omitted as spent—E.R. 2 of 2014) 2. Interpretation (1) In this Ordinance, unless the context otherwise requires—accrued rights (累算權益) means, in relation to a member of an occupational retirement scheme, the rights for the time being conferring entitlement to the receipt by or in respect of him of benefits under the scheme, being the benefits arising as regards the member by reference to the scheme’s past service liability to him, on the day concerned; actuary (精算師) means— (a) a Fellow of the Faculty of Actuaries of Scotland; (b) a Fellow of the Institute of Actuaries of England; (c) a Fellow of the Society of Actuaries of the United States of America; (d) a Fellow of the Institute of Actuaries of Australia; and (e) any person who holds such qualification as the Registrar may accept as being of a standard comparable to that of a person described in paragraph (a), (b), (c) or (d); administrator (管理人) means— (a) in the case of a scheme or pooling agreement governed by a trust, the trustee concerned; (b) in the case of a scheme or pooling agreement which is the subject of or regulated by an insurance arrangement, the insurer concerned; (c) in any other case, the person who is principally responsible for the management of the scheme and its assets otherwise than as a person who is solely concerned with the investment or custody of the assets; aggregate past service liability (過去服務總負債) means, in relation to a particular day and a particular occupational retirement scheme, the aggregate of the values of the past service liability arising on that day under the scheme as regards every member thereof added together;aggregate vested liability (既有總負債) means, in relation to a particular day and a particular occupational retirement scheme, the aggregate of the values of the vested liabilities arising on that day under the scheme as regards every member thereof added together;Appeal Board (上訴委員會) means the Occupational Retirement Schemes Appeal Board constituted under section 62; associate (有關連人士) means, in relation to an employer— (a) the spouse or a parent, child, grandparent, grandchild, sister or brother of that employer; (b) a body corporate of which that employer is a director or a shareholder who is entitled, whether directly or indirectly, to exercise or control the exercise of 20% or more of the voting power at any general meeting of that body corporate; (c) any person who is a partner of that employer; (d) if that employer is a body corporate—(i) any director of that body corporate;(ii) any body corporate which is—(A) a subsidiary;(B) the holding company; or(C) another subsidiary of the holding company,of the employer;(iii) any director of any such subsidiary or holding company; and(iv) the spouse or a parent, child, grandparent, grandchild, sister or brother of a director referred to in subparagraphs (i) and (iii); or (e) such other persons as may be specified by the Registrar by rules made under section 73(1); auditor (核數師) means— (a) a Hong Kong accountant; or (b) any person who holds such qualification as the Registrar may accept as being of a standard comparable to that of a Hong Kong accountant; authorized insurer (獲授權保險人) means a person who is an insurer within the meaning of the Insurance Ordinance (Cap. 41) (Cap. 41) and who is authorized under section 8 of Cap. 41, or deemed to be so authorized under section 61(1) or (2) of Cap. 41 as in force immediately before the commencement date* of section 10 of the Insurance Companies (Amendment) Ordinance 2015 (12 of 2015) having continuing effect by the operation of section 2(7) of Schedule 11 to Cap. 41, to carry on insurance business; (Amended 12 of 2015 s. 118)authorized person (獲授權人) means a person appointed or authorized under section 80A; (Added 9 of 2020 s. 3)company (公司) means a company within the meaning of the Companies Ordinance (Cap. 622); (Amended 28 of 2012 ss. 912 & 920)consultative committee (諮詢委員會) means a committee constituted under section 34;country (國家) includes any state, province or any territorial entity or part which partly comprises the country;declared return (已公布收益) means, in relation to contributions to the funds of a defined contribution scheme, the interest or return on such contributions which stands credited from time to time to the individual account of a member of the scheme in calculating the amount to which he is entitled under the terms of the scheme and if the facts in any particular case so dictate and the rules of the scheme so permit declared return includes negative return;defined benefit scheme (界定利益計劃) means an occupational retirement scheme which is not a defined contribution scheme; defined contribution scheme (界定供款計劃) means an occupational retirement scheme which provides that the amount of a benefit under the scheme is to be an amount determined solely by reference to— (a) the contributions to the scheme’s funds by or in respect of the member concerned and any declared return in respect of such contributions (where such return may be subject to a minimum guaranteed rate but is otherwise unascertainable before it is declared); and (b) where appropriate, the qualifying service and age of the employee; designated person (指定人士) in relation to an occupational retirement scheme means a person who has given an undertaking referred to in section 15(f), 38 or 39(3) as regards the scheme and has not been released under section 40; director (董事) includes— (a) any person who occupies the position of a director, by whatever name called; (b) any person in accordance with whose directions or instructions the directors of a corporation are accustomed to act; and (c) in the case of a body of persons which—(i) is incorporated or otherwise established in any manner whatsoever by or under the laws of a country, territory or place outside Hong Kong; or(ii) has its principal place of business in such a country, territory or place, any person who occupies a position analogous to that of a director of a company within the meaning of the Companies Ordinance (Cap. 622); (Amended 31 of 1999 s. 3; 28 of 2012 ss. 912 & 920) document (文件) includes material used in connection with or produced by any equipment which— (a) automatically processes information; (b) automatically records or stores information; (c) can be used to cause information to be automatically recorded, stored or otherwise processed on other equipment; and (d) can be used to retrieve information, whether the information is recorded or stored in the equipment itself or in other equipment; domicile (本籍) means, in relation to an occupational retirement scheme or trust, the country, territory or place by whose system of law the scheme or trust is governed; (Amended 31 of 1999 s. 3)eligible person (合資格的人)—see section 2A; (Added 9 of 2020 s. 3)exempted scheme (獲豁免計劃) means an occupational retirement scheme for which the Registrar has issued an exemption certificate under section 7 and any withdrawal under section 12 has not come into effect; (Added 53 of 1995 s. 2)exemption certificate (豁免證明書) means a certificate issued under section 7(1);existing scheme (現有計劃) means an occupational retirement scheme existing at the time when an application for exemption or registration is made for the scheme; (Added 9 of 2020 s. 3)full certificate (足額證明書) means an actuarial certificate certifying in the manner described in paragraph 1(a) or 2(a) of Part 3 of Schedule 1 or Part 1 of Schedule 2;function (職能) includes power and duty, and performance of a function includes exercise of a power and discharge of a duty;group scheme (集團計劃) means an occupational retirement scheme formed by a grouping of companies in accordance with section 67; (Added 53 of 1995 s. 2) holding company (控權公司) means, in relation to an employer— (a) (where the employer is a company) a company of which the employer is a subsidiary; (b) (where the employer is not a company but is a body of persons otherwise incorporated or established in Hong Kong or elsewhere) any other body of persons appearing to the Registrar to be analogous to a company of which the employer would be a subsidiary were the employer a company as defined by section 2(1) of the Companies Ordinance (Cap. 622); (Amended 28 of 2012 ss. 912 & 920) Hong Kong accountant (香港會計師) means a certified public accountant (practising) as defined by section 2(1) of the Accounting and Financial Reporting Council Ordinance (Cap. 588); (Amended 23 of 2004 s. 56; L.N. 66 of 2022)Hong Kong domiciled scheme (以香港為本籍的計劃) means an occupational retirement scheme the domicile of which is Hong Kong;Hong Kong permanent identity card holder (香港永久性居民身分證持有人) means a person holding a permanent identity card within the meaning of the Registration of Persons Ordinance (Cap. 177); insurance arrangement (保險安排) means an agreement or arrangement— (a) made in respect of an occupational retirement scheme with an authorized insurer under which the insurer is responsible for managing the scheme; and (Amended 59 of 1993 s. 20) (b) which is of a class or description specified in rules made by the Registrar; investigator (調查員) means a person carrying out an investigation under section 66C; (Added 9 of 2020 s. 3)liquidator (清盤人) means a liquidator appointed under section 49; occupational retirement scheme (職業退休計劃) means subject to subsection (6) any scheme, not being a contract of insurance under which benefits are payable only upon the death or disability of the insured, which— (a) is comprised in one or more instruments or agreements; (b) has or is capable of having effect in relation to one or more descriptions or categories of employment so as to provide benefits, in the form of pensions, allowances, gratuities or other payments, payable on termination of service, death or retirement, to or in respect of persons gainfully employed (whether in Hong Kong or elsewhere) under a contract of service in any employment; and (c) by its terms limits membership of the scheme to eligible persons, (Added 9 of 2020 s. 3) and includes, where the context admits, a proposed such scheme; (Amended 9 of 2020 s. 3) offshore scheme (離岸計劃) means an occupational retirement scheme the domicile of which is a country, territory or place outside Hong Kong; (Amended 31 of 1999 s. 3)participating scheme (參與計劃) means, in relation to a pooling agreement, an occupational retirement scheme to which the agreement applies;partner (合夥人) means a member of a partnership formed under the law of Hong Kong or the law of any country, territory or place outside Hong Kong; (Amended 31 of 1999 s. 3) past service liability (過去服務負債) means, in relation to a particular day and a particular member of an occupational retirement scheme— (a) (in case the scheme is a defined contribution scheme) the aggregate of the contributions paid or payable under the scheme by the relevant employer and (where appropriate) by the member, in respect of that member during the period beginning when his membership commenced and ending on that particular day, and the amount of any declared return on such contributions including any guaranteed return paid or payable pursuant to the scheme; or (b) (in case the scheme is a defined benefit scheme) the value on that particular day, as determined by an actuary, of the benefit entitlement under the scheme of, or in respect of, the member which, having regard to his qualifying service, could reasonably be expected to be received prospectively or contingently or, where appropriate, both; the actuary having made a reasonable allowance for the effects of mortality, what he considers to be prospective future salary increases, withdrawal from service rates and such other factors (if any) as he considers relevant, and in this definition contributions (供款) and benefit entitlement (利益享有權) include, in relation to a member who was a member of another occupational retirement scheme before joining the first-mentioned scheme, such contributions or benefit entitlement which stood to his credit under the second-mentioned scheme as were transferred in accordance with the terms of the first-mentioned scheme and stood thereunder to his credit upon his joining the first-mentioned scheme and where such transfer occurs, membership (成員) in relation to that member includes such period of membership in the second-mentioned scheme as is counted towards membership of the first-mentioned scheme; prescribed fee (訂明費用) means a fee prescribed in rules made by the Registrar;qualified certificate (不足額證明書) means an actuarial certificate certifying in the manner described in paragraph 1(b) or 2(b) of Part 3 of Schedule 1 or Part 2 of Schedule 2;qualifying service (可享利益服務年資) means, in relation to a member of an occupational retirement scheme, the period of service by reference to which his benefits under the scheme are ascertained;registered scheme (註冊計劃) means an occupational retirement scheme which is for the time being registered under section 18;registered trust company (註冊信託公司) means a company which is for the time being registered under Part 8 of the Trustee Ordinance (Cap. 29);(Amended E.R. 2 of 2014)Registrar (處長) means the Mandatory Provident Fund Schemes Authority; (Replaced 4 of 1998 s. 4)registration (註冊) means registration under section 18;relevant employer (有關僱主) means, in relation to an occupational retirement scheme, the employer who provides the employment which entitles or enables the employee to be a member of the scheme;restricted investment (受限制投資項目) has the meaning assigned to it by section 27; security (證券) means any share, loan or other stock, debenture, fund, or any bond or notes of, or issued by (or on behalf of) any body (whether established or extant in Hong Kong or elsewhere and whether corporate or unincorporated) and includes— (a) any right, option or interest (whether described as a unit or otherwise) in or in respect of any of the foregoing; (b) any certificate of interest or participation in, or temporary or interim certificate for, receipt for, or warrant to subscribe to or purchase any of the foregoing; or (c) any instrument commonly known as a security; solicitor (律師) means a solicitor within the meaning of the Legal Practitioners Ordinance (Cap. 159); subsidiary (附屬公司) means, in relation to an employer— (a) where the employer is a company and there is another company which is by virtue of section 15 of the Companies Ordinance (Cap. 622) a subsidiary of the employer for the purposes of that Ordinance, the other company; (b) where an employer is not a company but is a body of persons otherwise incorporated or established in Hong Kong or elsewhere, any other body of persons, appearing to the Registrar to be analogous to a company which would be by virtue of section 15 of the Companies Ordinance (Cap. 622) a subsidiary of the employer were the employer a company as defined by section 2(1) of that Ordinance; (Amended 28 of 2012 ss. 912 & 920) the court (法院) means the Court of First Instance within the meaning of the High Court Ordinance (Cap. 4); (Amended 25 of 1998 s. 2)the register (註冊紀錄冊) means the register kept in accordance with section 6; vested benefit (既有利益) means, in relation to a particular day and a particular member of an occupational retirement scheme— (a) in case the member is employed on that day by the relevant employer of the scheme, the benefit which under the scheme the member is on that day entitled to receive, either immediately or prospectively, and also the benefit (if any) which any other person is on such day entitled so to receive in respect of such member, assuming the member had voluntarily resigned and had thereby ceased to be so employed on that day; or (b) in case the member otherwise ceased to be employed by such employer before that day, the benefit which under the scheme the member is or was on such day entitled so to receive, and also the benefit (if any) which any other person is or was on that day entitled so to receive in respect of such member; vested liability (既有負債) means— (a) in relation to a particular day and a particular vested benefit entitlement under a defined benefit scheme, the value on that day, as determined by an actuary, of the vested benefit; or (b) in relation to a particular day and a particular vested benefit entitlement under a defined contribution scheme—(i) the contributions paid or payable under the scheme (including any amount paid or payable by reason of a guarantee given pursuant to the scheme) by the relevant employer of the scheme, and (where appropriate) by the relevant member in respect of that member assuming he ceased to be employed by that employer on that day; and(ii) the value of any declared return on such contributions, and in this definition contributions (供款) and benefit entitlement (利益享有權) include, in relation to a member who was a member of another occupational retirement scheme before joining the first-mentioned scheme, such contributions or benefit entitlement which stood to his credit under the second-mentioned scheme as were transferred in accordance with the terms of the first-mentioned scheme and stood thereunder to his credit upon his joining the first-mentioned scheme. (Amended 9 of 2020 s. 3; E.R. 5 of 2021)(2) In relation to an offshore scheme references in this Ordinance to a trust shall be construed as references to—(a) in case the law of the domicile of that scheme includes a system or principles of equity, any relation between persons which under that system or those principles constitutes, or is treated or regarded as being, a trust;(b) in any other case, any relation in which—(i) by virtue of the law of the domicile of that scheme a person holds property for the benefit of another person; and(ii) as against all other persons, under the law of the domicile of that scheme the person so holding the property is, or is treated or regarded as being, the owner of it for all or most purposes,and references in this Ordinance to a trustee shall be construed as references to that person.(3) A person shall not be deemed to be a person in accordance with whose directions or instructions the directors of a corporation are accustomed to act by reason only that the directors of the corporation act on advice given by him in a professional capacity.(4) In this Ordinance, pooling agreement (滙集協議) means an agreement or arrangement— (Amended 59 of 1993 s. 20) (a) which is—(i) governed by a single trust; or(ii) the subject of or regulated by an insurance arrangement including a series of insurance arrangements which are of the same class or description; (Amended 59 of 1993 s. 20) (b) which applies to 2 or more individual occupational retirement schemes each of which is—(i) governed by such trust; or(ii) (where appropriate) the subject of or regulated by such insurance arrangement,by virtue of such application; (c) under which, in the case of an agreement or arrangement governed by such trust, the assets of its participating schemes are vested with the administrator of the agreement or arrangement, as the case may be; (Amended 59 of 1993 s. 20) (d) which is managed, in the case of an agreement or arrangement governed by such trust, by a registered trust company; (Replaced 59 of 1993 s. 20) (e) in relation to which, and its participating schemes, proper accounts and records are kept; and (Replaced 59 of 1993 s. 20) (f) under which the value of the assets attributable to, and the liabilities of, each of its participating schemes are readily determinable from such accounts and records. (Replaced 59 of 1993 s. 20) (5) The Registrar may accept an agreement as a pooling agreement for the purposes of this Ordinance if he receives—(a) a statement by a solicitor referred to in paragraph 2(c) of Part 2 of Schedule 1; and(b) a statement by an auditor referred to in paragraph 3 of Part 2 of Schedule 1.(6) (a) A contract of employment shall not be regarded as an occupational retirement scheme by reason solely that under the contract the employer concerned agrees to pay a gratuity to the employee concerned on the termination of the contract and the period of employment to which the contract relates does not exceed 4 years.(b) Where—(i) a contract described in paragraph (a) terminates;(ii) the employee concerned is subsequently employed, whether with or without a break in service, by the same employer under another contract; and(iii) the gratuity payable under the terminated contract is not paid in full within 6 months of such termination, or though such gratuity is so paid the whole or a substantial part of it is repaid by the employee to the employer,that other contract shall be regarded as an occupational retirement scheme.(7) For the avoidance of doubt, it is hereby declared that where a registered scheme is the subject of or regulated by an insurance arrangement, the assets of the scheme are, in so far as that arrangement is concerned, any claims (including contingent and prospective claims) which may be made against the authorized insurer concerned under that arrangement. (Added 59 of 1993 s. 20)(8) For the purposes of an application for an exemption certificate under section 16 of the Mandatory Provident Fund Schemes (Exemption) Regulation (Cap. 485 sub. leg. B) (the Regulation), where—(Amended E.R. 2 of 2014)(a) an occupational retirement scheme was established; and(b) an application for its registration under section 15 or its exemption under section 7, as the case may be, was made,within the times required to qualify as a “relevant ORSO registered scheme” within the meaning of section 2 of the Regulation, if subsequently—(i) as a result of a provision of this Ordinance, an application to register the scheme again was required; or(ii) any other change to the scheme took place that is not prohibited by this Ordinance but might create doubt that it continued to qualify as such a scheme,such an application or other change shall not affect the continuity of the scheme nor its qualification as a “relevant ORSO registered scheme” within the meaning of section 2 of the Regulation. (Added 52 of 1999 s. 2)(9) Without limiting subsection (8), the following shall not affect the continuity of a scheme nor its qualification as a “relevant ORSO registered scheme” within the meaning of section 2 of the Regulation—(a) application for subsequent registration of a scheme where the scheme has ceased to be registered under section 23(5);(b) conversion of a scheme from being the subject of, or regulated by, an insurance arrangement into a scheme governed by a trust. (Added 52 of 1999 s. 2)(10) Notwithstanding subsection (8), where—(a) an occupational retirement scheme referred to in that subsection is terminated; and(b) the benefits payable to each member of the scheme have been paid out to such member,for the purposes of the Regulation, such a scheme shall cease to qualify as a “relevant ORSO registered scheme” under section 2 of the Regulation, and no application shall be made for an exemption certificate under section 16 of the Regulation in respect of it. (Added 52 of 1999 s. 2) Editorial Note: * Commencement date: 23 September 2019. 2A. Meaning of eligible person (1) An eligible person, in relation to an occupational retirement scheme, is an individual who is entitled or prospectively entitled to benefits under the scheme by virtue of—(a) the individual’s employment (whether past or present) by the relevant employer of the scheme; or(b) an agreement (transfer agreement)—(i) made between—(A) the relevant employer of the scheme; and(B) the relevant employer of another occupational retirement scheme (original scheme) of which the individual was a member,whether or not the individual is a party to the agreement; and(ii) made as a result of any company amalgamation, restructuring, joint venture, or any other business transaction of a similar nature, conducted in good faith between the two employers.(2) However, for an individual to be an eligible person because of an entitlement by virtue of a transfer agreement, the individual must have been a member of the original scheme by virtue of being an individual described in subsection (1) or (3) in relation to the original scheme.(3) Also, an eligible person is an individual having an interest in the estate of a deceased individual described in subsection (1).(Added 9 of 2020 s. 4) 2B. Interpretation of employment (1) This section applies for the purposes of the definition of occupational retirement scheme in section 2(1) and of section 3.(2) If a person provides service on a full-time basis to a business or other organization in Hong Kong for a continuous period of more than 4 years in a way and subject to a degree of control that the person may reasonably be regarded as an integral part of the organization—(a) the provision of service is to be regarded as employment;(b) the proprietor of the organization is to be regarded as an employer whether or not there is a contract of employment or service between the person and the proprietor; and(c) the person providing service is to be regarded as an employee of, or employed by, the proprietor of the organization under a contract of employment or service.(3) An employer does not include the government of a country, territory or place outside Hong Kong or any agency or undertaking of or by such a government that is not operated for the purpose of gain.(Added 9 of 2020 s. 4) 3. Restrictions on operation of occupational retirement schemes (1) Subject to subsection (2), an employer shall not operate, contribute to (whether on his own behalf or on behalf of any other person) or otherwise participate in an occupational retirement scheme or enter into a contract with his employees under which membership of an occupational retirement scheme is provided unless—(a) the scheme is a registered scheme;(aa) the scheme is a registered scheme within the meaning of section 2 of the Mandatory Provident Fund Schemes Ordinance (Cap. 485); (Added 4 of 1998 s. 4)(b) the scheme is contained in or otherwise established by any Ordinance; (Amended 76 of 1993 s. 14)(c) the scheme is an exempted scheme; or (Replaced 53 of 1995 s. 3. Amended 80 of 1997 s. 102)(d) an application has been made in respect of the scheme under section 7(1) or 15 and has not been finally disposed of.(2) Where an employer enters into a contract with his employee under which membership of a proposed occupational retirement scheme is provided, subsection (1) does not apply—(a) before the expiry of 3 months after the date on which the contract is entered into; or(b) (where an application is made in respect of the scheme under section 7(1) or 15 within 3 months after the date on which the contract is entered into) before the application has been finally disposed of.(3) Any person who contravenes subsection (1) commits an offence and shall be liable—(a) on summary conviction to a fine at level 6 and to an additional fine of $5,000 for each day during which the offence continues;(Amended E.R. 2 of 2014)(b) on conviction upon indictment to—(i) a fine of $500,000;(ii) an additional fine of $10,000 for each day during which the offence continues; and(iii) imprisonment for 2 years.(4) For the purposes of subsections (1)(d) and (2)(b), an application made in respect of an occupational retirement scheme under section 7(1) or 15 has been finally disposed of—(a) if the Registrar allows the application—on the Registrar allowing the application;(b) if the Registrar refuses the application and no appeal is made within the period specified in section 8(2) or 19(2) against the refusal—on the expiry of the period; or(c) if the Registrar refuses the application and an appeal is made within the period specified in section 8(2) or 19(2) against the refusal—on the Appeal Board determining the appeal under section 62(4)(a) or (c). (Replaced 9 of 2020 s. 5)(5) (Repealed 9 of 2020 s. 5) 4. Saving of rights, etc. under unregistered schemes An occupational retirement scheme which is not registered under this Ordinance shall not be void or voidable solely by reason of the non-registration, and accordingly the rights, powers, obligations and liabilities under the scheme shall not be invalid or unenforceable solely by reason of the non-registration. Part II Registrar and Register 5. Registrar of Occupational Retirement Schemes (1) The Mandatory Provident Fund Schemes Authority is the Registrar of Occupational Retirement Schemes and has the functions imposed or conferred on the Registrar by this Ordinance or any other law.(2) The Authority is required to have a seal, which is to be used to authenticate documents issued by it under this Ordinance in its capacity as Registrar.(3) The Authority must arrange for all amounts paid to, or recovered by, it under this Ordinance in its capacity as Registrar to be paid into the MPFA Administration Account established and maintained under section 6M of the Mandatory Provident Fund Schemes Ordinance (Cap. 485).(Replaced 4 of 1998 s. 4) 6. The register (1) The Registrar shall keep a register of occupational retirement schemes registered or exempted under this Ordinance.(2) The register shall contain such particulars as the Registrar considers appropriate.(2A) The Registrar may amend the register as he considers appropriate in circumstances that justify a change in the register. (Added 53 of 1995 s. 4)(3) The register may be kept in legible or non-legible form but if kept in non-legible form, it shall be kept in a manner that any entry in the register is capable of being reproduced in legible form.(4) The register shall be kept at such place as the Registrar shall determine and shall be available for inspection during office hours on payment to the Registrar of a prescribed fee.(5) Where a person applies to the Registrar for a copy of an entry in the register certified by the Registrar as correct, such copy shall be issued to the applicant on payment by him of a prescribed fee.(6) A document purporting to be a copy of an entry in the register and to be certified by the Registrar as a correct copy and to be signed by him shall, unless the contrary is proved, be evidence of the entry and shall be received in evidence without further proof as to the contents of the document and the signature thereon. 6A. Registrar may issue guidelines (1) The Registrar may issue guidelines for the guidance of administrators, relevant employers and their employees, and other persons concerned with this Ordinance.(2) A guideline—(a) may consist of a code, standard, specification or provision relating to occupational retirement schemes or a class of such schemes; and(b) may apply, incorporate or refer to any document that has been published, either as in force at the time when the guideline is issued, or as amended or published from time to time.(3) A guideline may specify information or documents required to be provided to the Registrar.(4) The information or documents specified under subsection (3) must be of a kind that the Registrar reasonably requires for the performance of the Registrar’s functions under this Ordinance.(5) Subsection (3) has effect whether or not rules are made under section 73 requiring the provision of information or documents.(6) The Registrar may amend or revoke a guideline.(7) The Registrar must publish a guideline, or any amendment or revocation of it, in a way the Registrar considers appropriate.(8) A person does not incur a civil or criminal liability only because the person has contravened a guideline.(9) However, if in any legal proceedings the court is satisfied that a guideline is relevant to determining a matter that is in issue in the proceedings—(a) the guideline is admissible in evidence in the proceedings; and(b) proof that the person contravened or did not contravene the guideline may be relied on by any party to the proceedings as tending to establish or negate the matter.(10) In any legal proceedings, a document that purports to be a copy of a guideline is, in the absence of evidence to the contrary, to be presumed to be a true copy of the guideline.(11) To avoid doubt, the power under subsection (1) is in addition to, and not in derogation of, any other power of the Registrar to give or issue guidelines under any other provision of this Ordinance.(12) A guideline issued under this section is not subsidiary legislation.(Added 9 of 2020 s. 6) Part III Exemption from the Ordinance 7. Exemption (1) The Registrar may on an application in writing issue an exemption certificate in respect of an occupational retirement scheme.(2) An application under this section shall be—(a) made by the relevant employer of an occupational retirement scheme, or for a group scheme under section 67 by the representative employer of the scheme; (Amended 53 of 1995 s. 5)(b) made in such form as may be specified by the Registrar; and(c) accompanied by—(i) the prescribed fee;(ii) a copy of a power of attorney executed under section 67 (if any); (Amended 53 of 1995 s. 5; 9 of 2020 s. 7)(iii) such information or document as may be specified by the Registrar; and (Amended 9 of 2020 s. 7)(iv) a written statement by the relevant employer or representative employer that—(A) the scheme by its terms limits membership of the scheme to eligible persons; and(B) all members of the scheme are eligible persons. (Added 9 of 2020 s. 7)(3) The relevant employer of an occupational retirement scheme who makes an application under this section shall within such period as the Registrar may specify—(a) give a written notice of the application to each member of the scheme who is the holder of an identity card within the meaning of the Registration of Persons Ordinance (Cap. 177); or(b) display an appropriate notice of the application and make it available for inspection by such member,as the Registrar may direct.(4) The Registrar may allow an application for an exemption certificate if he receives a written statement by the relevant employer that such employer has complied with subsection (3) and is satisfied—(a) (where the occupational retirement scheme to which the application relates is an offshore scheme) that the scheme is registered or approved by an authority in a country, territory or place outside Hong Kong and that the authority performs in that country, territory or place functions which are generally analogous to the functions conferred on the Registrar by this Ordinance; or (Amended 31 of 1999 s. 3)(b) (in the case of an existing scheme) that on the date of the application not more than either 10% or 50 of that scheme’s members, whichever is less, are Hong Kong permanent identity card holders; or(c) (in the case of a proposed scheme) that on the establishment of the scheme not more than either 10% or 50 of that scheme’s members, whichever is less, will be Hong Kong permanent identity card holders.(5) Where the Registrar receives an application under subsection (1), he may require the applicant to supply to him such information or document (including a legal opinion on a matter specified by the Registrar) as he shall specify which is reasonably required to enable him to determine the application.(5A) The Registrar may allow an application under subsection (4)(b) or (c) only if the Registrar receives the application before the date* on which the Occupational Retirement Schemes (Amendment) Ordinance 2020 (9 of 2020) comes into operation. (Added 9 of 2020 s. 7)(5B) On or at any time after allowing an application for an exemption certificate for an occupational retirement scheme, the Registrar may, by written notice given to the relevant employer of the scheme, impose conditions for exemption of the scheme that the Registrar considers appropriate. (Added 9 of 2020 s. 7)(5C) The Registrar may from time to time, by written notice given to the relevant employer of the scheme, amend or revoke a condition imposed under subsection (5B). (Added 9 of 2020 s. 7)(5D) Before imposing, amending or revoking a condition under subsection (5B) or (5C), the Registrar must give the relevant employer of the scheme—(a) not less than 30 days’ advance notice of the Registrar’s proposed decision, specifying the grounds; and(b) an opportunity to make written representations to the Registrar as to why the condition should not be imposed, amended or revoked. (Added 9 of 2020 s. 7)(6) Where the Registrar refuses an application for an exemption certificate, he shall give a written notice of the refusal to the applicant which notice shall state the reason for refusal. Editorial Note: * Commencement date: 26 June 2020. 8. Appeal against the Registrar’s decision (1) If the Registrar imposes, amends or revokes a condition for exemption of an occupational retirement scheme, the relevant employer of the scheme may appeal to the Appeal Board against the decision within 2 months after the date of the notice given under section 7(5B) or (5C). (Added 9 of 2020 s. 8)(2) Where the Registrar refuses an application for an exemption certificate, the applicant may appeal to the Appeal Board against the refusal within 2 months after the date of the notice given under section 7(6). (Amended 9 of 2020 s. 8) 8A. Membership requirements for exempted schemes (1) If, despite paragraph (c) of the definition of occupational retirement scheme in section 2(1), any term of an exempted scheme allows a person other than an eligible person to be a member of the scheme, without limiting section 11(1)(g) or (h) or 12(1)(g) or (h)—(a) the scheme continues to be an exempted scheme; and(b) the term is void and unenforceable.(2) Subsection (1) applies only to a scheme for which an exemption certificate is issued on or after the date* on which the Occupational Retirement Schemes (Amendment) Ordinance 2020 (9 of 2020) comes into operation.(3) If, without reasonable excuse, a person other than an eligible person is allowed to be a member of an exempted scheme, the relevant employer of the scheme commits an offence and is liable—(a) on summary conviction—to a fine at level 6 and, in the case of a continuing offence, to a further fine of $5,000 for every day during which the offence continues; or(b) on conviction on indictment—to a fine of $500,000 and to imprisonment for 2 years and, in the case of a continuing offence, to a further fine of $10,000 for every day during which the offence continues.(Added 9 of 2020 s. 9) Editorial Note: * Commencement date: 26 June 2020. 9. Periodic fee for exempted schemes (1) Where the Registrar issues an exemption certificate in respect of an occupational retirement scheme, the relevant employer of that scheme shall pay to the Registrar a prescribed fee which is a periodic fee as may be appropriate in respect of—(a) such period of 12 months during which the certificate continues to be valid and beginning on the first or any subsequent anniversary of the date of the certificate; or(b) part of such a period.(2) A periodic fee payable under subsection (1) shall be paid to the Registrar not later than 1 month after the first day of the period in respect of which it is payable.(3) Where a periodic fee is not paid in accordance with subsection (2), there shall be chargeable upon the unpaid fee a surcharge equal to the amount of such unpaid fee which shall be paid together with such unpaid fee to the Registrar not later than 2 months after the first day of the period in respect of which the unpaid periodic fee is payable. 10. Provision of information relating to exempted schemes (1) For an exempted scheme—(a) the Registrar may by written notice require a person to give, within the period specified in the notice, any information or document relating to the scheme that is in the person’s possession or under the person’s control; (Replaced 9 of 2020 s. 10)(ab) the Registrar may by written notice require a person to give, within the period specified in the notice, any information or document (including a legal opinion, or an auditor’s certificate, on a matter specified by the Registrar) relating to the scheme that is reasonably required to enable the Registrar to determine whether—(i) the scheme by its terms limits membership of the scheme to eligible persons; and(ii) all members of the scheme are eligible persons; (Added 9 of 2020 s. 10)(b) the relevant employer shall, for each period of 12 months beginning on the date of the exemption certificate or an anniversary of the date, give the Registrar—(i) an annual return for the period relating to the scheme in the form and containing the information that may be specified by the Registrar;(ii) a written statement as to whether at all times during the period—(A) the scheme by its terms limits membership of the scheme to eligible persons; and(B) all members of the scheme are eligible persons;(iii) for a scheme exempted under section 7(4)(a)—documentary evidence to satisfy the Registrar of the validity of the relevant registration or approval during the period; and(iv) for a scheme exempted under section 7(4)(b) or (c)—a written statement of the total number of members of the scheme and the number of the members who were Hong Kong permanent identity card holders on the date of the statement,within 1 month after the expiry of the period or a longer period the Registrar may allow;(c) the relevant employer shall give each member of the scheme who holds an identity card within the meaning of the Registration of Persons Ordinance (Cap. 177) notice of the issue of the exemption certificate as soon as reasonably practicable and in the manner specified by the Registrar;(d) the relevant employer shall notify the Registrar of a change to the name of the scheme together with the matters prescribed in rules made by the Registrar within 1 month of the change;(e) the relevant employer concerned shall notify the Registrar of a change of the relevant employer together with the matters prescribed in rules made by the Registrar within 1 month of the change;(f) the relevant employer shall notify the Registrar of a change of his name or address within 1 month of the change; and(g) if the scheme ceases to be registered or approved as mentioned in section 7(4)(a), the relevant employer shall as soon as reasonably practicable inform the Registrar of the fact. (Replaced 53 of 1995 s. 6)(2) A person who without reasonable excuse— (Amended 9 of 2020 s. 10)(a) fails to give the Registrar information or a document pursuant to a notice under subsection (1)(a) or (ab);(b) fails to give the Registrar an annual return, a written statement or documentary evidence as required under subsection (1)(b);(c) fails to give a member notice of an exemption certificate required under subsection (1)(c); or(d) fails to give the Registrar notice of a change to his name or address as required under subsection (1)(f),commits an offence and is liable on summary conviction to a fine at level 3. (Replaced 53 of 1995 s. 6)(3) A relevant employer who without reasonable excuse fails to give the Registrar notice of a change to the name of a scheme as required under subsection (1)(d) commits an offence and is liable on summary conviction to a fine at level 1. (Replaced 53 of 1995 s. 6)(3A) A relevant employer who without reasonable excuse fails to give the Registrar notice of a change of the relevant employer as required under subsection (1)(e) commits an offence and is liable on summary conviction to a fine at level 3. (Added 53 of 1995 s. 6)(3B) A relevant employer who without reasonable excuse fails to inform the Registrar as required under subsection (1)(g) commits an offence and is liable on summary conviction to a fine at level 6. (Added 53 of 1995 s. 6)(4) It shall be a defence to a charge under subsection (3B) if the defendant proves that he did not know and could not with reasonable diligence have known that the scheme to which the charge relates had ceased to be registered or approved as mentioned in section 7(4)(a). (Amended 53 of 1995 s. 6)(Amended 9 of 2020 s. 10) 11. Proposal to withdraw an exemption certificate (1) The Registrar may issue a proposal to withdraw an exemption certificate where it appears to the Registrar that—(a) for an exempted scheme under section 7(4)(a)—(i) the scheme has ceased to be registered or approved as mentioned in section 7(4)(a); or(ii) the relevant authority has ceased to perform functions that are generally analogous to the functions conferred on the Registrar by this Ordinance;(b) for an exempted scheme under section 7(4)(b) or (c), more than 10% or 50 of the members of the scheme, whichever is less, are Hong Kong permanent identity card holders;(ba) a condition imposed under section 7(5B), or amended under section 7(5C), in respect of the scheme is not complied with; (Added 9 of 2020 s. 11)(c) the requirement of section 9(3) is not complied with for the scheme; (Amended 9 of 2020 s. 11)(d) any requirement of section 10(1)(a), (ab) or (b) is not complied with for the scheme; (Replaced 9 of 2020 s. 11)(e) any requirement of section 67(2)(ga) is not complied with for the scheme; (Added 9 of 2020 s. 11)(f) the requirement of section 70B is not complied with for the scheme; (Added 9 of 2020 s. 11)(g) any term of the scheme allows a person other than an eligible person to be a member of the scheme; (Added 9 of 2020 s. 11)(h) not all members of the scheme are eligible persons; (Added 9 of 2020 s. 11)(i) the scheme is not, or has ceased to be, an occupational retirement scheme; or (Added 9 of 2020 s. 11)(j) the withdrawal is in the public interest. (Added 9 of 2020 s. 11)(2) Where the Registrar issues a proposal in respect of an exempted scheme under subsection (1), he shall— (Amended 9 of 2020 s. 11)(a) publish a notice containing the proposal in a way the Registrar considers appropriate; and (Replaced 9 of 2020 s. 11)(b) give a notice in writing of the proposal to the relevant employer of that scheme requiring him to—(i) cause a copy of the notice to be sent to each member of the scheme who is the holder of an identity card within the meaning of the Registration of Persons Ordinance (Cap. 177); or(ii) display an appropriate notice of the Registrar’s notice and make the later available for inspection by such member.(3) A notice published or given by the Registrar under subsection (2) shall—(a) state the reason for issuing the proposal; and(b) state that representations or objections as regards the proposed withdrawal may be made to the Registrar within such period (being a period of not less than 1 month beginning on the date of the notice) as shall be specified in the notice.(4) The Registrar may on an application in writing in his absolute discretion—(a) withdraw a proposal issued under subsection (1); or(b) extend the period referred to in subsection (3).(5) A person who fails to comply with a requirement under subsection (2)(b)(i) or (ii) commits an offence and is liable on summary conviction to a fine at level 3. (Replaced 9 of 2020 s. 11) 12. Withdrawal of exemption certificate (1) The Registrar may withdraw an exemption certificate if, after considering representations or objections made during the period set out in a notice published under section 11(2), he is satisfied that—(a) for an exempted scheme under section 7(4)(a)—(i) the scheme has ceased to be registered or approved as mentioned in section 7(4)(a);

or(ii) the relevant authority has ceased to perform functions that are generally analogous to the functions conferred on the Registrar by this Ordinance;(b) for an exempted scheme under section 7(4)(b) or (c), more than 10% or 50 of the members of the scheme, whichever is less, are Hong Kong permanent identity card holders;(ba) a condition imposed under section 7(5B), or amended under section 7(5C), in respect of the scheme is not complied with; (Added 9 of 2020 s. 12)(c) the requirement of section 9(3) is not complied with for the scheme; (Amended 9 of 2020 s. 12)(d) any requirement of section 10(1)(a), (ab) or (b) is not complied with for the scheme; (Replaced 9 of 2020 s. 12)(e) any requirement of section 67(2)(ga) is not complied with for the scheme; (Added 9 of 2020 s. 12)(f) the requirement of section 70B is not complied with for the scheme; (Added 9 of 2020 s. 12)(g) any term of the scheme allows a person other than an eligible person to be a member of the scheme; (Added 9 of 2020 s. 12)(h) not all members of the scheme are eligible persons; (Added 9 of 2020 s. 12)(i) the scheme is not, or has ceased to be, an occupational retirement scheme; or (Added 9 of 2020 s. 12)(j) the withdrawal is in the public interest. (Added 9 of 2020 s. 12)(2) Where the Registrar withdraws an exemption certificate, he shall— (Amended 53 of 1995 s. 8)(a) publish a notice of the withdrawal in a way the Registrar considers appropriate; and (Replaced 9 of 2020 s. 12)(b) give a notice in writing of the withdrawal to the relevant employer of the scheme requiring him to— (Amended 53 of 1995 s. 8)(i) cause a copy of the notice to be sent to each member of the scheme who is the holder of an identity card within the meaning of the Registration of Persons Ordinance (Cap. 177); or(ii) display an appropriate notice of the Registrar’s notice and make the latter available for inspection by such member.(3) A notice published or given by the Registrar under subsection (2) shall—(a) state the decision of the Registrar;(b) state that appeal against the withdrawal may be made to the Appeal Board within 2 months after the date of the notice; and(c) state the date on which the withdrawal will come into effect.(4) A person who fails to comply with a requirement under subsection (2)(b)(i) or (ii) commits an offence and is liable on summary conviction to a fine at level 3. (Replaced 9 of 2020 s. 12) 13. Appeal against withdrawal Where the Registrar withdraws an exemption certificate, the relevant employer may, within the period of 2 months after the date of the notice given under section 12(2)(b), appeal to the Appeal Board against the withdrawal.(Amended 53 of 1995 s. 9) 14. Coming into effect of withdrawal (1) A withdrawal under section 12 shall not come into effect—(a) where no appeal is made in relation to it under section 13, until the period during which such an appeal may be made has expired; or(b) where such an appeal is made, pending determination of the appeal or, in case such appeal is withdrawn, before such withdrawal.(2) Where the Registrar withdraws an exemption certificate, in order to afford an opportunity to enable— (Amended 53 of 1995 s. 10)(a) the requirement of or under this Ordinance which caused him to withdraw the exemption certificate to be complied with; or(b) the registration of the scheme to be registered under section 18(1), (Amended 53 of 1995 s. 10)he may defer the coming into effect of the withdrawal and, if so, shall give a notice in writing of the deferment of the withdrawal to the relevant employer of the scheme.(3) The Registrar shall—(a) publish a notice of the coming into effect of the withdrawal in a way the Registrar considers appropriate; and (Replaced 9 of 2020 s. 13)(b) give a notice in writing of the coming into effect of the withdrawal to the relevant employer of the relevant occupational retirement scheme requiring him to—(i) cause a copy of the notice to be sent to each member of the scheme who is the holder of an identity card within the meaning of the Registration of Persons Ordinance (Cap. 177); or(ii) display an appropriate notice of the Registrar’s notice and make the latter available for inspection by such member.(4) A person who fails to comply with a requirement under subsection (3)(b)(i) or (ii) commits an offence and is liable on summary conviction to a fine at level 3. (Replaced 9 of 2020 s. 13) Part IV Registration of Occupational Retirement Schemes 15. Application for registration An application for registration of an occupational retirement scheme under this Ordinance shall—(a) be made by the relevant employer of the scheme, or for a group scheme under section 67 by the representative employer of the scheme, to the Registrar; (Amended 53 of 1995 s. 11)(b) be made in a form specified by the Registrar;(c) be made in accordance with the registration rules made under section 73(1)(d);(d) be accompanied by the prescribed fee and a copy of a power of attorney (if any) executed under section 67; (Amended 53 of 1995 s. 11)(e) be accompanied—(i) in case the scheme to which the application relates is a participating scheme of a pooling agreement, by the documents set out in Part 2 of Schedule 1; or(ii) in case the scheme is not such a participating scheme of a pooling agreement, by the documents set out in Part 1 of Schedule 1,and such documents set out in Part 3 of Schedule 1 as may be applicable in the case of the application;(f) be accompanied by an undertaking given—(i) where the scheme—(A) is or proposes to become a participating scheme of a pooling agreement, by the administrator of the pooling agreement;(B) is not a participating scheme of a pooling agreement and is, or is proposed to be, governed by a trust, by each of the trustees or proposed trustees concerned;(C) is not a participating scheme of a pooling agreement and is, or is proposed to be, the subject of or regulated by an insurance arrangement, by the relevant insurer or proposed insurer,who is (in the case of an individual) ordinarily resident in Hong Kong and is the holder of an identity card within the meaning of the Registration of Persons Ordinance (Cap. 177) or which has (in the case of a body corporate) a place of business in Hong Kong; or(ii) in any other case or where none of the administrator, trustees or insurer referred to in subparagraph (i)(A), (B) or (C) is a person who is ordinarily resident in Hong Kong and is the holder of an identity card within the meaning of the Registration of Persons Ordinance (Cap. 177) or body corporate having a place of business in Hong Kong, by such suitable person as the Registrar may direct,stating that he undertakes to perform in relation to the scheme the functions imposed or conferred on a designated person by this Ordinance. 16. Registrar may require information or amendment of documents Where the Registrar receives an application under section 15, he may—(a) require the applicant to supply to him such information or document (including a legal opinion on a matter specified by the Registrar) as he shall specify which is reasonably required to enable him to determine the application;(b) require any document given under section 15(e) to be amended in such manner as he may reasonably direct. 17. Waiver and modification of registration requirements (1) Where an application for the registration of an occupational retirement scheme which is a participating scheme of a pooling agreement is made under section 15 in anticipation of the cessation of the effect of the scheme’s original registration under section 23(5), the Registrar may as regards the scheme waive or modify wholly or partly any requirement of any provision of this Ordinance relating to application for registration if he is satisfied that—(a) upon the registration being applied for the scheme will become a participating scheme of another pooling agreement;(b) the terms and nature of the 2 pooling agreements are similar; and(c) such waiver or modification will not prejudice the interests of the members of the scheme.(2) On making any waiver or modification under subsection (1), the Registrar may impose such conditions as he thinks fit. 18. Registration (1) Subject to subsection (3), where the Registrar receives an application under section 15 for the registration of an occupational retirement scheme and is satisfied—(a) subject to section 17 as regards the application and the scheme, that the requirements of section 15 have been complied with;(b) that the requirements of section 25(2) and (5) (in the case of an existing scheme governed by a trust) have been complied with in relation to the scheme as though it was a registered scheme or (in the case of a proposed scheme which will be governed by a trust) will be complied with in relation to the scheme;(c) subject to subsection (2), that the terms of the scheme ensure that in the event that the scheme was terminated or otherwise wound up the benefits payable to every member of the scheme under such terms would be paid directly to such member instead of being paid through the relevant employer of the scheme or his agent;(d) (where the scheme is or is stated to be an offshore scheme) that the terms of the scheme provide that, in the event that—(i) the registration of the scheme under this Ordinance is cancelled; and(ii) (A) the period within which an appeal against such cancellation may be made has expired and no such appeal has been made; or(B) an appeal is duly made against such cancellation and has been dismissed by the Appeal Board and all proceedings (if any) incidental to such appeal and dismissal have been finally disposed of,any vested benefit which every member of the scheme who is the holder of an identity card within the meaning of the Registration of Persons Ordinance (Cap. 177) is entitled to receive or which any other person is entitled to receive in respect of such member under the terms of the scheme shall thereupon become payable as if the condition precedent (if any) of such entitlement had been satisfied; and(e) that registering the scheme is not contrary to the public interest, (Added 9 of 2020 s. 14)the Registrar may allow the application. (Amended 9 of 2020 s. 14)(2) Where the terms of the scheme allow the administrator of the scheme to withhold any part of any payment due to be made under the terms of the scheme to a member of the scheme for the purpose of effecting repayment of a debt owed by that member to the relevant employer of the scheme upon the production of a written acknowledgment of such debt made by that member, the terms of the scheme shall not solely by this reason be regarded as not having the effect provided for in subsection (1)(c).(3) Where the Registrar receives an application under section 15 for the registration of an occupational retirement scheme which is or is stated to be an offshore scheme and having had regard to all information available to him is satisfied that—(a) the scheme—(i) (in the case of an existing scheme) is not governed by a trust and is not the subject of or regulated by an insurance arrangement;(ii) (in the case of a proposed scheme) will not be governed by a trust and will not be the subject of or regulated by an insurance arrangement; or(b) the scheme (where it is an existing scheme) is or (where it is a proposed scheme) will be governed by a trust which does not or (where appropriate) will not require compliance with the requirements of section 25(2) and (5) in relation to the scheme, (Amended 9 of 2020 s. 14)the Registrar may allow the application if the conditions prescribed in subsection (4) are fulfilled as regards the scheme.(4) The conditions referred to in subsection (3) are—(a) as regards the application the requirements of section 15 have been complied with to the satisfaction of the Registrar;(b) the Registrar—(i) is satisfied that the scheme’s funding arrangements provide that the assets of the scheme are kept separate and distinct from and do not form part of the assets of the relevant employer of the scheme or the assets of the administrator of the scheme which are not vested in him in his capacity as such; or(ii) is not satisfied in the manner described in subparagraph (i) but is satisfied that to keep the assets of the scheme separate and distinct from the assets of the relevant employer or the assets of the administrator of the scheme which are not vested in him in his capacity as such is not possible or reasonably practicable;(c) (in the case of a scheme referred to in subsection (3)(b)) the Registrar is satisfied that because of the proper law of the trust governing the scheme, compliance with the requirements of section 25(2) and (5) is not possible or reasonably practicable; and (Amended 9 of 2020 s. 14)(d) the Registrar, having had regard to the requirement of section 27(2) and the interests of the members of the scheme as a whole, considers it appropriate to allow the application.(4A) On or at any time after allowing an application for registration of an occupational retirement scheme, the Registrar may, by written notice given to the relevant employer of the scheme, impose conditions for registration of the scheme that the Registrar considers appropriate. (Added 9 of 2020 s. 14)(4B) The Registrar may from time to time, by written notice given to the relevant employer of the scheme, amend or revoke a condition imposed under subsection (4A). (Added 9 of 2020 s. 14)(4C) Before imposing, amending or revoking a condition under subsection (4A) or (4B), the Registrar must give the relevant employer of the scheme—(a) not less than 30 days’ advance notice of the Registrar’s proposed decision, specifying the grounds; and(b) an opportunity to make written representations to the Registrar as to why the condition should not be imposed, amended or revoked. (Added 9 of 2020 s. 14)(5) Where the Registrar allows an application for registration of an occupational retirement scheme, he shall issue a certificate of registration to the relevant employer of the scheme.(6) Where the Registrar refuses an application for registration, he shall give a written notice of the refusal to the applicant which notice shall state the reason for refusal. 19. Appeal against the Registrar’s decision (1) If the Registrar imposes, amends or revokes a condition for registration of an occupational retirement scheme, the relevant employer of the scheme may appeal to the Appeal Board against the decision within 2 months after the date of the notice given under section 18(4A) or (4B). (Added 9 of 2020 s. 15)(2) Where the Registrar refuses an application for registration, the applicant may appeal to the Appeal Board against the refusal within 2 months after the date of the notice given under section 18(6). (Amended 9 of 2020 s. 15) Part V Operation of Registered Schemes General Requirements 20. Registered schemes’ trustees, etc., to keep proper accounts and records, etc. (1) Subject to subsection (5), the administrator of a registered scheme shall keep proper accounts and records as regards all assets, liabilities and financial transactions of the scheme and as soon as reasonably practicable after each of the scheme’s financial years—(a) cause to be prepared in relation to it financial statements as regards the scheme; and(b) submit such statements to an auditor for audit and require such auditor to prepare a report on the accounts.(2) The financial statements referred to in subsection (1) prepared in relation to a registered scheme and a financial year of it shall—(a) show a true and fair view of the financial transactions of the scheme during the year and of the disposition, at the last day of the year, of its assets and liabilities; and(b) contain such other information as the Registrar may specify in guidelines issued by him.(Amended E.R. 5 of 2021)(3) A report prepared under subsection (1) in relation to a registered scheme and a financial year of it shall—(a) state whether or not in the opinion of the auditor preparing the report—(i) proper accounts and records have been kept as regards all assets, liabilities and financial transactions of the scheme;(ii) the financial statements prepared under subsection (1) in relation to the year show a true and fair view of the financial transactions of the scheme during the year and of the disposition, at the last day of the year, of its assets and liabilities;(b) state whether or not in the opinion of the auditor preparing the report— (Amended 59 of 1993 s. 21)(i) (where the scheme is a defined benefit scheme) the relevant undertaking (as defined in subsection (4)) has been complied with;(ii) (where the scheme is a defined contribution scheme)—(A) contributions have been made in accordance with the terms of the scheme; and(B) a shortfall between the scheme’s assets and the scheme’s aggregate vested liability exists, and if so stating the amount of such shortfall at the last day of the year;(iii) as at the end of the year the assets of the scheme were subject to any assignment, charge, pledge or other encumbrance except—(A) the trust (if any) governing the scheme;(B) any charge or pledge created for the purposes of securing loans necessary for meeting the liabilities of the scheme; and(C) any option to acquire for valuable consideration any interest in the assets of the scheme granted in the normal course of business;(iv) the requirement of section 27(2) has been complied with as regards the scheme as at the last day of the year and two such other dates in the year as the auditor preparing the report may elect: Provided that the intervening period between such dates shall not be shorter than 3 months; (c) where—(i) the auditor has been denied access to the employer’s books and records in contravention of subsection (7); or(ii) the auditor has not been given necessary information and explanations as required by subsection (7),state such fact; and(d) contain such other information as the Registrar may specify in guidelines issued by him.(Amended E.R. 5 of 2021)(3A) To avoid doubt, the financial transactions of a registered scheme include transactions involving the transfer of benefits to and from the scheme. (Added 9 of 2020 s. 16)(4) In subsection (3)(b)(i) the relevant undertaking (有關承諾) means— (a) in case 2 or more actuarial certificates have been issued as regards a particular registered scheme each of which is either a full certificate or a qualified certificate, the undertaking referred to in the most recent of those certificates; (b) in case only 1 full certificate or qualified certificate has been so issued, the undertaking referred to in the certificate. (5) Where—(a) a registered scheme is a participating scheme of a pooling agreement;(b) the assets of the scheme were stated to be sufficient to meet its aggregate vested liability in—(i) (where the scheme is a defined contribution scheme) the auditor’s statement supplied under section 15 or the last auditor’s report prepared under this section; or(ii) (where the scheme is a defined benefit scheme) the last actuarial certificate supplied under section 15 or 31; and(c) a majority of over 50% of the members of the scheme passes in accordance with rules made by the Registrar a resolution that this subsection applies to the scheme in relation to a particular financial year of the scheme,subsection (1)(b) shall not apply to the scheme in relation to that year.(6) A resolution referred to in subsection (5)(c) shall not be passed in relation to more than 2 consecutive financial years of a registered scheme.(7) For the purposes of subsection (3), the relevant employer of a registered scheme shall, as soon as reasonably practicable after a written request is made of him by the auditor of the scheme—(a) allow the auditor and such other person as may be authorized by that auditor, to have access to such books and records of the employer; and(b) give to the auditor such information and explanations,as he may reasonably require for the purposes of discharging his duty in relation to the scheme.(7A) The auditor appointed under subsection (7B)(a) of the relevant employer of a registered scheme (the employer’s auditor) to which subsection (1)(b) applies shall, not later than 4 months after each of the scheme’s financial years or such longer period as the Registrar may in his absolute discretion permit in any particular case, give to the auditor preparing the report under subsection (3)(b) (the administrator’s auditor) a statement—(a) in such form as the Registrar may specify in guidelines issued by him;(b) containing such information as may reasonably be required for the purposes of enabling the administrator’s auditor to discharge his duty under subsection (3)(b) in relation to the scheme; and(c) where the employer’s auditor—(i) has been denied access to the employer’s books and records in contravention of subsection (7B)(b)(i); or(ii) has not been given necessary information and explanations as required by subsection (7B)(b)(ii),of that fact. (Added 59 of 1993 s. 21)(7B) For the purposes of subsection (7A), the relevant employer of a registered scheme to which that subsection applies shall—(a) ensure that, at all relevant times, he has appointed an auditor to discharge the duty imposed under that subsection on the employer’s auditor; and(b) as soon as reasonably practicable after a request is made of him by that auditor—(i) allow the auditor and such other person as may be authorized by that auditor, to have access to such books and records of the employer; and(ii) give to the auditor such information and explanations,as the auditor may reasonably require for the purposes of discharging his duty under that subsection. (Added 59 of 1993 s. 21)(7C) The administrator of a pooling agreement accepted under section 2(5) shall, subject to any exemption granted by the Registrar, appoint—(a) a common accounting year for each of the schemes within the pooling agreement; and(b) the same auditor to audit the financial statements of each participating scheme under the pooling agreement for the purposes of subsections (1)(b) and (2). (Added 53 of 1995 s. 12)(8) An employer who fails to comply with subsection (7) or (7B) commits an offence and shall be liable on summary conviction to a fine at level 3. (Amended 59 of 1993 s. 21; E.R. 5 of 2021) 20A. Requirements in relation to certain terms (1) The terms of a registered scheme must at all times—(a) if the scheme is not a participating scheme of a pooling agreement—not permit assets of the scheme to be used to indemnify any person who manages the scheme or any trustee of the scheme against any fraud, misfeasance or breach of trust;(b) not enable any person, without the consent of a member of the scheme, to alter to the member’s detriment either the member’s accrued rights under the scheme or the member’s vested benefits, unless the alteration is consequential on an amendment to the terms of the scheme consented to by not less than 90% of the members of the scheme;(c) provide that if an alteration described in paragraph (b) occurs, any vested benefit that the member concerned is entitled to receive as at the date of the alteration under the terms of the scheme becomes, if the member so elects, payable to the member as if any condition precedent of the entitlement had been satisfied; and(d) have the effect provided for in section 18(1)(c) and (d).(2) If a registered scheme is the subject of, or regulated by, an insurance arrangement, the terms of the arrangement must at all times provide that any sum payable by the administrator of the scheme in the event of the termination of the arrangement may be paid by the administrator only to—(a) another authorized insurer for the purposes of another insurance arrangement of which the scheme will be the subject, or by which the scheme will be regulated; or(b) a person who will hold the sum on trust as an asset of the scheme in accordance with section 25.(3) If a registered scheme is a participating scheme of a pooling agreement, the terms of the agreement must at all times not permit assets of its participating schemes to be used to indemnify the administrator of the agreement against any fraud, misfeasance or breach of trust.(4) Any term of a registered scheme that contravenes subsection (1) is void and unenforceable.(5) Any term of an insurance arrangement of which a registered scheme is the subject, or by which a registered scheme is regulated, that contravenes subsection (2) is void and unenforceable.(6) Any term of the pooling agreement of a participating scheme that contravenes subsection (3) is void and unenforceable.(Added 9 of 2020 s. 17) 20B. Membership requirements for registered schemes (1) If, despite paragraph (c) of the definition of occupational retirement scheme in section 2(1), any term of a registered scheme allows a person other than an eligible person to be a member of the scheme, without limiting section 42(p) or (q) or 45(1)(d)(xvi) or (xvii)—(a) the scheme continues to be a registered scheme; and(b) the term is void and unenforceable.(2) Subsection (1) applies only to a scheme for which a certificate of registration is issued on or after the date* on which the Occupational Retirement Schemes (Amendment) Ordinance 2020 (9 of 2020) comes into operation.(3) If, without reasonable excuse, a person other than an eligible person is allowed to be a member of a registered scheme, the relevant employer of the scheme commits an offence and is liable—(a) on summary conviction—to a fine at level 6 and, in the case of a continuing offence, to a further fine of $5,000 for every day during which the offence continues; or(b) on conviction on indictment—to a fine of $500,000 and to imprisonment for 2 years and, in the case of a continuing offence, to a further fine of $10,000 for every day during which the offence continues.(Added 9 of 2020 s. 17) Editorial Note: * Commencement date: 26 June 2020. 21. Requirements in relation to assets (1) The assets of a registered scheme—(a) subject to subsections (4)(b) and (4A), shall, except where the Registrar is satisfied as regards the scheme in the manner described in section 18(4)(b)(ii), be kept separate and distinct from and shall not form part of the assets of the relevant employer of the scheme or the assets of the administrator of the scheme which are not vested in him in his capacity as such; (Amended 59 of 1993 s. 22; 53 of 1995 s. 13)(b) shall not be subject to any assignment, charge, pledge or other encumbrance except—(i) the trust (if any) governing the scheme;(ii) any charge or pledge created for the purposes of securing loans necessary for meeting the liabilities of the scheme; and(iii) any option to acquire for valuable consideration any interest in the assets of the scheme granted in the normal course of business; and(c) shall only be applied for the purposes of the scheme.(2) Any assignment, charge, pledge or other encumbrance created over the assets of a registered scheme shall be void to the extent to which the creation contravenes subsection (1).(3) Where the net realizable value of the assets of a registered scheme exceeds the aggregate past service liability and the terms of the scheme provide for repayment of the excess or any part thereof to the relevant employer of the scheme in such circumstances, nothing in this section shall be construed as preventing such repayment.(4) Where a registered scheme is the subject of or regulated by an insurance arrangement, it is hereby declared that—(a) notwithstanding—(i) the terms of the scheme (including of that arrangement);(ii) the other provisions of this Ordinance;(iii) the provisions of any other enactment; or(iv) any rule of law,the assets or estate of the relevant employer of the scheme available for distribution in the event of the bankruptcy or winding up of that employer shall not include so much of the assets of that scheme as equals the aggregate past service liability of the members of that scheme;(b) subsection (1)(a) shall not operate to either—(i) prevent the relevant employer of the scheme from being the policy holder of the policy issued by the authorized insurer concerned under that arrangement; or(ii) require any claim which may be made against that insurer under that arrangement to be kept separate and distinct from and not form part of the assets of that employer. (Added 59 of 1993 s. 22)(4A) Where a registered scheme is a participating scheme of a pooling agreement accepted under section 2(5), the asset separation required under subsection (1)(a) does not require the separation of the assets of the scheme from the assets of the other schemes vested in the administrator in his capacity as administrator of the pooling agreement. (Added 53 of 1995 s. 13)(5) For the avoidance of doubt, it is hereby declared that the operation of subsection (4)(a) in relation to a registered scheme shall not prejudice the operation of subsection (1)(c) in relation to so much of the assets of that scheme as are not, by virtue of that first-mentioned subsection, included in the assets or estate of the relevant employer of the scheme available for distribution in the event of the bankruptcy or winding up of that employer. (Added 59 of 1993 s. 22) 21A. Notice required (1) The relevant employer concerned shall notify the Registrar of a change of the relevant employer of a registered scheme together with the matters prescribed in rules made by the Registrar within 1 month of the change.(2) The relevant employer of a registered scheme shall give notice of the matters prescribed in rules made by the Registrar within 1 month after the change to the name of the scheme.(3) The relevant employer of a registered scheme who without reasonable excuse fails to notify the Registrar of a change as required under subsection (1) commits an offence and is liable on summary conviction to a fine at level 3. (Amended 9 of 2020 s. 18)(4) A relevant employer of a registered scheme who without reasonable excuse fails to give the Registrar notice of the prescribed matters within the prescribed time of a change to the name of the scheme under subsection (2) commits an offence and is liable on summary conviction to a fine at level 1. (Amended 9 of 2020 s. 18)(Added 53 of 1995 s. 14) 22. Certain changes to be notified (1) The relevant employer of a registered scheme shall notify the Registrar of—(a) any change of his name or address which was previously supplied to the Registrar; or(b) any change of the administrator of the scheme,within 1 month of such change.(2) The designated person of a registered scheme—(a) must, within 1 month of any change of the following information previously supplied to the Registrar, notify the Registrar—(i) the name or address of the designated person;(ii) the name or address of the administrator of the scheme; and(b) if the designated person or administrator of the scheme is a body corporate, must within the specified period, notify the Registrar—(i) if its domicile is changed to Hong Kong so that it becomes a company registered under section 820C(1) of the Companies Ordinance (Cap. 622) (Cap. 622)—such change in domicile; or(ii) if its domicile is changed to a place other than Hong Kong—such change in domicile and its latest place of domicile. (Replaced 14 of 2025 s. 227)(3) Any person who contravenes subsection (1) or (2) commits an offence and shall be liable on summary conviction to a fine at level 3.(Amended E.R. 5 of 2021)(4) In subsection (2)(b)—specified period (指明期間)—(a) in relation to a change in domicile to Hong Kong—means 1 month after the designated person or administrator of the registered scheme is deregistered as required by section 820E(3)(a) of Cap. 622; or(b) in relation to a change in domicile to a place other than Hong Kong—means 1 month after the completion of the change. (Added 14 of 2025 s. 227) 23. Cessation of application of pooling agreement (1) A pooling agreement shall not cease to apply to a registered scheme unless the Registrar has given his prior consent in writing.(2) A pooling agreement shall, notwithstanding any term of it, be construed and have effect as if it was made subject to subsection (1).(3) The Registrar may give consent referred to in subsection (1) on an application in writing made to him by the administrator of the relevant pooling agreement or the relevant employer of the relevant registered scheme.(4) Where a pooling agreement ceases to apply to a registered scheme, the administrator of the scheme shall within 14 days inform the Registrar in writing of such cessation.(5) Where a registered scheme is a participating scheme of a pooling agreement upon its registration, the registration shall cease to have effect upon the cessation of application of that agreement to the scheme.(6) Any person who contravenes subsection (4) commits an offence and shall be liable on summary conviction to a fine at level 3.(Amended E.R. 5 of 2021) 24. General funding requirements and duties (1) Subject to the provisions of this Ordinance, the assets of a registered scheme shall be sufficient to meet its aggregate vested liability and such a scheme shall be funded in accordance with the terms of the scheme and (where the scheme is a defined benefit scheme) recommendations, if any, contained in an actuarial certificate supplied under section 15 and certifying in the manner described in paragraph 1 or 2 of Part 3 of Schedule 1 or an actuarial certificate supplied under section 31 and certifying in the manner described in Part 1 or 2 of Schedule 2.(2) If a scheme existing immediately before 15 October 1993 becomes a registered scheme, it shall be the duty of the relevant employer of the scheme to provide in accordance with subsection (3) the resources necessary to enable the scheme to meet both its aggregate vested liability and its aggregate past service liability on the respective days on which the periods referred to in subsection (3) expire. (Amended 9 of 2020 s. 19)(3) The resources referred to in subsection (2) shall be provided—(a) in so far as they relate to the relevant registered scheme’s aggregate vested liability, not later than—(i) the expiration of the period of 5 years after the commencement* of section 1; or(ii) such shorter period as may be agreed on by the relevant employer and administrator of the scheme; or(iii) such longer period as the Registrar may allow in accordance with rules made for the purposes of this paragraph;(b) in so far as they relate to such scheme’s aggregate past service liability, not later than the expiration of such period as may be agreed on between such employer and such administrator.(4) Notwithstanding any provision of the terms of an occupational retirement scheme, such terms shall be construed and have effect as though they were made subject to this section. Editorial Note: * Commencement date: 15 October 1993. 24A. Recovery of arrears in relation to certain registered schemes (1) In this section—arrears (欠款), in relation to a contribution payable to the funds of a scheme by a relevant employer, means so much of the contribution as has not been paid by that employer when it became due;relevant scheme (有關計劃) means a registered scheme in respect of which the members or a class of members and their employer are exempted under section 5 of the Mandatory Provident Fund Schemes Ordinance (Cap. 485).(2) If any arrears arise in respect of a relevant scheme, the Registrar may, in accordance with rules made under section 73 for the purpose, impose on the relevant employer—(a) a financial penalty that does not exceed the greater of $5,000 and an amount equal to 10 per cent of the arrears; and(b) a requirement to pay a contribution surcharge at a rate prescribed by rules in force under section 73, not exceeding 20 per cent per annum of the arrears.(3) The Registrar may, by proceedings brought in a court of competent jurisdiction in Hong Kong, recover as a debt due to the Registrar any arrears payable by the relevant employer under this section, and any financial penalty or contribution surcharge imposed in respect of those arrears under subsection (2).(4) In any proceedings brought under subsection (3), a certificate, purporting to be signed by the Registrar, specifying the amount of any arrears, or of any financial penalty or contribution surcharge imposed in respect of those arrears under subsection (2), is, in the absence of evidence to the contrary, proof of the matters specified in the certificate.(5) If arrears arise in respect of a relevant scheme, the designated person shall—(a) take reasonable steps to recover the arrears; and(b) give notice in writing to the Registrar setting out particulars of the arrears, the scheme and the relevant employer to enable or assist the Registrar to perform any functions imposed on him by this section or rules made under section 73 for the purposes of this subsection.(6) The Registrar shall—(a) on receipt of a notice referred to in subsection (5)(b), give notice in writing to the relevant employer, accompanied by a copy of this section in the Chinese and English languages, requesting him to pay the arrears on or before a date specified in the notice; and(b) if the relevant employer does not comply with the request, take steps to recover the arrears and any financial penalty and contribution surcharge imposed under subsection (2).(7) The designated person shall—(a) assist the Registrar to discharge the duty referred to in subsection (6)(b); and(b) verify the calculation of any amount received from the relevant employer in payment of the arrears or any contribution surcharge imposed under subsection (2).(8) The Registrar shall pay to the designated person any amount received from the relevant employer in payment of the arrears or any contribution surcharge imposed under subsection (2).(9) The designated person shall pay into the scheme any amount referred to in subsection (7)(b).(10) The Registrar shall give notice in writing to the Authority, within the meaning of section 2 of the Mandatory Provident Fund Schemes Ordinance (Cap. 485), setting out particulars of the arrears, the scheme and the relevant employer to enable or assist the Authority to perform a function referred to in section 78(1)(ea).(11) A designated person who, without reasonable excuse, fails to comply with a requirement imposed on designated persons by this section commits an offence and is liable on conviction to a fine at level 5 and to imprisonment for 1 year.(Added 4 of 1998 s. 4) 25. Trusteeship requirement (1) In this section— employer trustee (僱主受託人) in relation to a trust means— (a) the relevant employer of the registered scheme which is governed by the trust; (b) an associate, not being a registered trust company, of such employer; or (c) an employee of such employer, when acting in the capacity of a trustee of the trust; non-employer trustee (非僱主受託人) in relation to a trust means a trustee who is not an employer trustee.(2) Where a registered scheme is governed by a trust—(a) the sole trustee of the trust shall not be an employer trustee; and(b) where the trust instrument provides for the appointment of 2 or more trustees, there shall be appointed for the time being at least 1 non-employer trustee.(3) Where a registered scheme is a Hong Kong domiciled scheme and governed by a trust, the relevant trust instrument shall be construed and have effect as if the instrument—(a) required the appointment of at least 1 non-employer trustee; and(b) provided that in case all non-employer trustees cease to be trustees at a time when there was an employer trustee, at least 1 new non-employer trustee should be appointed as soon as reasonably practicable,if the instrument does not so require or provide.(4) A non-employer trustee appointed by virtue of subsection (3) shall for all purposes be regarded as having been appointed under the relevant trust instrument.(5) A trustee of a registered scheme must perform the following duties with respect to the administration of the scheme—(a) the duty to exercise a level of care, skill, diligence and prudence that may reasonably be expected of a prudent person who is acting in a similar capacity and who is familiar with the administration, management and maintenance of a registered scheme;(b) the duty to use all relevant knowledge and skill, in the administration, management and maintenance of the scheme, that the trustee may reasonably be expected to have because of the trustee’s business or occupation;(c) the duty to ensure that the assets of the scheme are invested in different investments so as to minimize the risk of losses of those assets, unless in particular circumstances it is prudent not to do so;(d) the duty to put the interests of the members of the scheme before the trustee’s own interest; and(e) the duty to act in accordance with the terms of the scheme. (Added 9 of 2020 s. 20) 26. Contravention of trusteeship requirement (1) Subject to subsection (3), if any requirement of section 25(2) or (5) is not complied with in relation to a registered scheme, the Registrar may at any time require the relevant employer of the scheme or the trustee (or, if there be more than 1 trustee, any of them) by notice in writing— (Amended 9 of 2020 s. 21)(a) to take such steps as are necessary to ensure compliance with the requirement as regards the scheme;(b) to inform him whether such steps have been taken,within a period specified by the Registrar.(2) The Registrar may extend the period referred to in subsection (1) on application in writing by the relevant employer or the trustee (or, if there be more than 1 trustee, any of them). (Replaced 9 of 2020 s. 21)(3) A requirement shall not be made under subsection (1) as regards a registered scheme if—(a) the application for the registration of the scheme was allowed under section 18(3); and(b) the conditions prescribed in section 18(4) are fulfilled as regards the scheme for the time being. 27. Investment requirement (1) In this section—loan (貸款) does not include a deposit made with an authorized institution within the meaning of the Banking Ordinance (Cap. 155);mutual fund corporation (互惠基金法團) means a corporation—(a) which is or holds itself out as being engaged primarily in the business of investing, reinvesting or trading in securities or any other property; and(b) the shares in which are exclusively, or primarily, redeemable shares; (Added 53 of 1995 s. 16)restricted investment (受限制投資項目) means—(a) any security of, or issued by, the relevant employer of a registered scheme or an associate of such employer except security issued by an associate of such employer in the form of an option which if exercised will constitute investment in the share capital of a body corporate other than the relevant employer or an associate of such employer; or(b) any security in the form of an option which if exercised will constitute investment in the share capital of the relevant employer of a registered scheme or an associate of such employer.(Amended 53 of 1995 s. 16)(2) Where an occupational retirement scheme is registered under this Ordinance—(a) not more than 10% of the assets of the scheme shall consist of restricted investments; (Replaced 53 of 1995 s. 16)(b) no asset of the scheme shall consist of a loan to the relevant employer of the scheme or an associate of the relevant employer; (Replaced 53 of 1995 s. 16)(c) subject to subsection (3), no asset of the scheme acquired on or after 15 October 1993 shall consist of investments in the share capital of a body corporate which share capital is not—(i) listed on a recognized stock market as defined in section 1 of Part 1 of Schedule 1 to the Securities and Futures Ordinance (Cap. 571); or (Replaced 5 of 2002 s. 407)(ii) publicly listed on a specified stock exchange as defined in that section. (Replaced 5 of 2002 s. 407)(3) Subsection (2)(c) shall not operate to prohibit—(a) up to but not exceeding 15% of the assets of the scheme consisting of investments in the share capital of bodies corporate which share capital is publicly listed on a stock exchange legally established and regulated as a stock exchange in accordance with the laws of the jurisdiction in which it is established and which is other than the stock exchanges referred to in subsection (2)(c) (which 15% is not in addition to any investments of the same nature held prior to 15 October 1993 and exempted from the restriction of subsection (2)(c));(b) the assets of the scheme consisting of investments in redeemable shares in a mutual fund corporation; and(c) investments that derive directly from entitlements attached to investments held prior to 15 October 1993 or acquired as a result of this paragraph and which would otherwise be prohibited by subsection (2)(c) about which investments the administrator, before making the investments, shall obtain the Registrar’s permission to make the investments by satisfying the Registrar—(i) that the investments derive directly from entitlements attached to the holding of investments held prior to 15 October 1993 or were acquired as a result of this paragraph;(ii) that the investments have become available in the normal course of business; and(iii) that the registered scheme would be disadvantaged if the investments were not made. (Replaced 53 of 1995 s. 16)(4) The Registrar may give guidelines as to what evidence or documentary material would be relevant to the issue of satisfying him of the matters set out in subsection (3)(c) including the requirement that the evidence and documentary materials be verified by independent advisors specified by the Registrar. (Replaced 53 of 1995 s. 16)(5) The Registrar is not liable for any loss incurred by a scheme as a result of an investment made with his permission under subsection (3)(c). (Replaced 53 of 1995 s. 16)(6) In determining at any time whether the requirement of subsection (2) is complied with assets shall be valued at their market value or, where such value cannot be ascertained, the net realizable value, at that time.(7) Where the Registrar reasonably believes that the requirement of subsection (2) is for the time being not being complied with as regards a registered scheme, he may, having regard to the interests of the members of the scheme as a whole, by notice in writing to the administrator of the scheme require him to ensure compliance with the requirement as regards the scheme within such period as the Registrar reasonably considers necessary (being a period of not less than 1 month beginning on the date of the notice).(8) A notice under subsection (7) relating to a registered scheme shall state that representations as regards the requirement specified in the notice may be made in writing to the Registrar within such period as is specified in the notice (being a period of not less than 1 month beginning on the date of the notice) by or on behalf of the administrator of the scheme.(9) Where a representation relating to a requirement is made in accordance with this section, the Registrar, having had regard to such representation, may—(a) withdraw or modify the requirement; or(b) extend the period referred to in subsection (7). 28. Periodic fee for registered schemes (1) The relevant employer of a registered scheme shall pay to the Registrar in respect of that scheme a prescribed fee which is a periodic fee as may be appropriate in respect of—(a) each period of 12 months during which the scheme continues to be a registered scheme and beginning on the first or any subsequent anniversary of its registration;

and(b) part of such a period.(2) A periodic fee payable under subsection (1) shall be paid to the Registrar not later than 1 month after the first day of the period in respect of which it is payable.(3) Where a periodic fee is not paid in accordance with subsection (2), there shall be chargeable upon the unpaid fee a surcharge equal to the amount of such unpaid fee which shall be paid together with such unpaid fee to the Registrar not later than 2 months after the first day of the period in respect of which the unpaid fee is payable. 29. Termination and winding up to be notified (1) Where a registered scheme is terminated or otherwise wound up (except in pursuance to a court order under section 48), the relevant employer and designated person of the scheme shall within 14 days of the commencement of the winding up or termination process give a notice in writing of that fact to the Registrar and each member of the scheme.(2) Any person who without reasonable excuse contravenes subsection (1) commits an offence and shall be liable on summary conviction to a fine at level 3.(Amended E.R. 5 of 2021)Monitoring 30. Annual return and written statement (Amended 9 of 2020 s. 22)(1) Within 6 months after the end of a registered scheme’s financial year or such longer period as the Registrar may in his absolute discretion allow, the designated person of the scheme shall send to the Registrar— (Amended 9 of 2020 s. 22)(a) an annual return for that year as regards the scheme in such form and containing such information as may be specified by the Registrar; and(b) either—(i) (where section 20(5) applies to the scheme by virtue of a resolution passed under paragraph (c) of that section) a copy of the relevant resolution certified by the administrator of the scheme to be a true copy; or(ii) (where section 20(5) does not apply to the scheme) a copy of the financial statements of the scheme for that year audited under section 20(1) and a copy of the auditor’s report containing the information referred to in section 20(3).(2) Within 1 month after the end of a financial year of a registered scheme, or a longer period the Registrar may allow, the relevant employer of the scheme must give the Registrar a written statement as to whether at all times during the financial year—(a) the scheme by its terms limits membership of the scheme to eligible persons; and(b) all members of the scheme are eligible persons. (Added 9 of 2020 s. 22) 31. Periodic certification of registered defined benefit schemes (1) The designated person of a registered scheme which is a defined benefit scheme shall, as regards each successive period of 3 years or such shorter period as the Registrar may specify in rules made by him, from the date of the actuarial review giving rise to the most recent actuarial certificate supplied as regards the scheme to the Registrar in accordance with this Ordinance, within 6 months after the expiration of the period or such later time as the Registrar may in his absolute discretion allow, supply to the Registrar a certificate issued by an actuary which shall either be a full certificate or a qualified certificate.(2) The full certificate or qualified certificate referred to in subsection (1) shall be prepared in accordance with Schedule 2 and shall contain such other information as the Registrar may specify in rules made under section 73(1)(i).(3) Where at the time when the application for the registration of an occupational retirement scheme is made, or at any time thereafter, a qualified certificate is supplied to the Registrar as regards a scheme, the following provisions shall apply—(a) subject to paragraph (b), subsection (1) shall operate as regards the scheme as though the reference therein to each successive period of 3 years was substituted by a reference to each period of 1 year;(b) the Registrar may by notice in writing require the administrator of the scheme to supply to him within the period specified in the notice (being a period of not less than 1 month beginning on the date of the notice) a report by an actuary on such matters as the Registrar may specify in the notice.(4) Where the Registrar receives a qualified certificate as regards a registered scheme and he subsequently receives a full certificate as regards that scheme, subsection (3) shall cease to apply as regards the scheme.(5) The relevant employer of a registered scheme shall, as soon as reasonably practicable after a written request is made of him by the actuary preparing a certificate under this section as regards the scheme—(a) allow the actuary and such other person as may be authorized by that actuary to have access to such books and records of the employer; and(b) give to the actuary such information and explanations,as he may reasonably require for the purposes of discharging his duty in relation to the scheme.(6) An employer who fails to comply with subsection (5) commits an offence and shall be liable on summary conviction to a fine at level 3.(Amended E.R. 5 of 2021) 32. Registrar may require certain reports and certificates (1) Where the Registrar—(a) receives as regards a registered scheme—(i) a qualified certificate under section 31;(ii) a written request from a consultative committee formed by the members of the scheme; or(iii) a written request signed by not less than 20% or 100, whichever is less, of the members of the scheme; or(b) reasonably believes that there exist or existed circumstances which may prejudice the interests of any member of a registered scheme under the scheme,he may make a requirement described in subsection (2) of the designated person of the scheme.(2) A requirement referred to in subsection (1) shall be contained in a notice in writing requiring the relevant designated person—(a) to cause to be prepared by an auditor approved by the Registrar a report on such matters and an account of such description as are specified in the notice;(b) (where the scheme is a defined benefit scheme) to cause to be issued by an actuary approved by the Registrar a certificate in such form as is specified in the notice,and to supply to the Registrar the report or certificate when prepared or issued or, in case such actuary refuses to issue such certificate, to notify the Registrar in writing of the refusal, within such period as is specified in the notice (being a period not less than 1 month beginning on the date of the notice).(3) The Registrar may in his absolute discretion extend the period specified in a notice under this section if he thinks fit.(4) Where the Registrar receives a report or certificate referred to in subsection (2), he may supply to the relevant employer of the relevant registered scheme a copy of such report or certificate and by notice in writing require him—(a) to make the copy available for inspection by the members of the scheme in such manner as shall be specified in the notice; and(b) to inform, in a manner specified in the notice, such members that the report or certificate is available for inspection by them.(5) Any employer who without reasonable excuse fails to comply with a requirement under subsection (4) commits an offence and shall be liable on summary conviction to a fine at level 3.(Amended E.R. 5 of 2021)(5A) The Registrar may, in performing any function under this Ordinance, take into account any report or certificate received under this section. (Added 9 of 2020 s. 23)(6) Nothing in section 77 shall be construed as affecting any provision of this section. 33. Information etc. to be given to Registrar (1) The Registrar may by written notice require a person to give, within the period specified in the notice, any of the following information or documents relating to a registered scheme that is in the person’s possession or under the person’s control— (Replaced 9 of 2020 s. 24)(a) whether or not on the date of such notice the requirement of section 27(2) was complied with as regards the scheme and, if it was not complied with, particulars of all the restricted investments which on that date formed the whole or part of the assets of that scheme and the proportion of the market value or, where such value cannot be ascertained, the net realizable value of those investments to the market value or (where appropriate) the net realizable value of the scheme’s assets as a whole;(b) such information as is specified in the notice and which relates to any accounts or records kept under section 20(1); and(c) any other information or document which is of a class or description specified in the notice and relates to the scheme or the pooling agreement (if any) which applies to the scheme.(1A) The Registrar may by written notice require a person to give, within the period specified in the notice, any information or document (including a legal opinion, or an auditor’s certificate, on a matter specified by the Registrar) relating to a registered scheme that is reasonably required to enable the Registrar to determine whether—(a) the scheme by its terms limits membership of the scheme to eligible persons; and(b) all members of the scheme are eligible persons. (Added 9 of 2020 s. 24)(2) The Registrar may in his absolute discretion extend the period specified in a notice under this section if he thinks fit. 33A. Registrar to be notified of certain events (1) In this section— reportable event (須申報事件) means, in relation to a registered scheme, the occurrence of any of the following— (a) a condition imposed under section 18(4A), or amended under section 18(4B), is not complied with for the scheme; (b) any requirement of section 20 is not complied with for the scheme; (c) any requirement of section 20A(1), (2) or (3) is not complied with for the scheme; (d) any requirement of section 21 is not complied with for the scheme; (e) any requirement of section 24 is not complied with for the scheme; (f) any requirement of section 25 is not complied with for the scheme; (g) a requirement under section 26(1) is not complied with for the scheme; (h) any requirement of section 27 is not complied with for the scheme; (i) the requirement of section 70B is not complied with for the scheme; (j) any term of the scheme allows a person other than an eligible person to be a member of the scheme; (k) not all members of the scheme are eligible persons; working day (工作日) means a day that is not— (a) a general holiday; (b) a Saturday; or (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). (2) If the relevant employer or administrator of a registered scheme becomes aware of a reportable event that occurs on or after the date* on which the Occupational Retirement Schemes (Amendment) Ordinance 2020 (9 of 2020) comes into operation, the relevant employer or administrator must—(a) not later than the seventh working day after becoming aware of the event, give written notice to the Registrar setting out the particulars of the event;(b) keep a record of the particulars of the event;(c) permit the Registrar to inspect the record at any reasonable time during ordinary business hours; and(d) give written notice to the Registrar setting out such further or better particulars of the event as the Registrar requires as soon as practicable after the Registrar makes the requirement.(3) A person who, without reasonable excuse, contravenes subsection (2) commits an offence and is liable on summary conviction to a fine at level 6.(Added 9 of 2020 s. 25) Editorial Note: * Commencement date: 26 June 2020. 34. Consultative committees (1) Where a registered scheme has more than 20 members, the majority of the members of the scheme may select amongst themselves members of a consultative committee.(2) The function of a consultative committee is to advise the administrator of the relevant registered scheme as regards the scheme.(3) The consultative committee constituted in respect of a registered scheme shall as soon as reasonably practicable after its constitution give a notice in writing of its constitution to the administrator and relevant employer of the scheme.(4) Where a member of a consultative committee ceases to be a member of the relevant registered scheme, he shall at the same time cease to be a member of the committee.(5) The relevant employer and the administrator of a registered scheme shall each be entitled to attend personally, or to nominate a person to attend on his behalf, at each meeting of the committee formed by the members of the scheme.(6) Any advice given by the committee shall be sent to the relevant employer who shall forward it to the administrator of the scheme and any advice so forwarded shall be considered by, but shall not be binding on, such administrator.(7) Where the condition referred to in subsection (1) ceases to be fulfilled as regards a registered scheme, the consultative committee formed in respect of the scheme shall on such cessation be dissolved. 35. Certain information to be made available to consultative committees or members of registered schemes (1) The designated person of a registered scheme shall as soon as reasonably practicable prepare and keep revised as circumstances require a statement containing the information set out in Schedule 3.(2) Where a consultative committee has been formed by the members of a registered scheme, the designated person of the scheme shall—(a) as soon as reasonably practicable give to the committee a copy of the statement prepared under subsection (1);(b) subject to subsection (4), on a written request made to him by the committee, as soon as reasonably practicable furnish in writing to it the following particulars—(i) the latest available aggregate market value of the scheme’s total assets;(ii) whether or not on the date of the request the requirement of section 27(2) was complied with as regards the scheme and, if it was not complied with, the particulars of all the restricted investments which formed the whole or part of the assets of the scheme on that date and the proportion of the market value or, where such value cannot be ascertained, the aggregate net realizable value of those investments to the aggregate market value or (where appropriate) the net realizable value of the scheme’s total assets as a whole as on such date; (Amended 53 of 1995 s. 17)(iii) if on the date of the request the market value or, where such value cannot be ascertained, the net realizable value of a particular security then forming part of the scheme’s assets exceeded 10% of the market value or (where appropriate) the net realizable value on such date of the scheme’s assets as a whole, the particulars of such security and the percentage it then formed of that market value or (where appropriate) the net realizable value; and (Amended 53 of 1995 s. 17)(iv) if on the date of the request the market value or, if the market value cannot be ascertained, the net realizable value, of investments in the share capital of bodies corporate under section 27(3)(a) then forming part of the scheme’s assets exceeded 5% of the market value or (where appropriate) the net realizable value on that date of the scheme’s assets as a whole, the particulars of the investments and the percentage they then formed of the market value or (where appropriate) the net realizable value. (Added 53 of 1995 s. 17)(3) Subject to subsection (4), if no consultative committee is formed by the members of a registered scheme, the designated person of the scheme—(a) shall permit any member of the scheme to inspect the statement prepared under subsection (1) or a copy thereof at any time during business hours at a place agreed on between the relevant employer of the scheme and a representative of the members of the scheme or in default of such agreement, at a place determined by the Registrar; and(b) shall, upon a written request by a member of the scheme and production by such member of a resolution passed in accordance with rules made by the Registrar by a majority of over 50% of the members of the scheme that such request is supported by such members, furnish as soon as reasonably practicable in writing to the member the particulars referred to in subsection (2)(b).(4) Where a request under subsection (2)(b) or (3)(b) is made of a designated person and is complied with, unless otherwise directed in writing by the Registrar, the designated person shall not be obliged to comply with a further such request until the period of 12 months beginning on the day on which the earlier request was received has expired.(5) Within 6 months after the end of a registered scheme’s financial year, the relevant employer of the scheme shall give to each member of the scheme a statement of—(a) the member’s vested benefits under the scheme as at the end of that year; and(b) the benefits the member could reasonably expect to receive under the scheme on his retirement in respect of qualifying service already rendered.(6) Where a member of a registered scheme ceases to be employed under the employment to which the scheme relates, the relevant employer of the scheme shall, on a request in writing made by such member, not later than 3 months after such cessation, furnish to him particulars of any benefit under the scheme on such cessation of the member.(7) Where a registered scheme is amended, the administrator of the scheme shall as soon as reasonably practicable by notice in writing furnish the relevant employer of the scheme with particulars of the amendment and on receipt of such notice the employer shall give a copy of it to each member of the scheme.(8) The relevant employer of a registered scheme shall, on a request in writing by any member of the scheme, furnish as soon as reasonably practicable to the member in writing the following particulars—(a) in the case of a scheme governed by a trust, the names and addresses of all the trustees or, in case the scheme is the subject of or regulated by an insurance arrangement, the name and address of the relevant insurer;(b) in the case of an offshore scheme, the name and address of the designated person of the scheme; and(c) in case a consultative committee is formed by the members in respect of the scheme, the names and addresses of its members.(9) The relevant employer of a registered scheme shall give to each member of the scheme a statement containing the following information—(a) the criteria and conditions of membership;(b) how members’ contributions are calculated;(c) how employer’s contributions are calculated;(d) what benefits are payable under the scheme;(e) how such benefits are calculated;(f) the conditions on which the benefits are paid;(g) which benefits (if any) are payable on a discretionary basis.(10) A statement required to be given under subsection (9) shall be given—(a) (where the member first became a member on or before the date of registration of the scheme) within 2 months after such date of registration; or(b) (where the member first became a member after the date of registration of the scheme) within 2 months after the date on which the member first became a member.(11) Any person who without reasonable excuse contravenes subsection (2), (3), (5), (6), (7), (8) or (9) commits an offence and shall be liable on summary conviction to a fine at level 3. (Amended E.R. 5 of 2021)(12) Nothing in subsection (1) or (2) shall be construed as requiring a designated person to specify or otherwise furnish particulars regarding any particular security or other property or the benefits (or any of them) to which a particular member of a registered scheme is entitled or prospectively entitled under the scheme.Inquiries 36. Inquiries (1) In this section—appointed person (獲委任人) means a person appointed under subsection (2);matter under inquiry (查訊中的事情) means a matter specified under subsection (3).(2) Where—(a) a requirement relating to a registered scheme made under section 32 is not complied with; or(b) a report is supplied to the Registrar under section 32 and, having regard to the report, he considers it appropriate so to do,the Registrar may appoint a person to conduct an inquiry as regards the scheme.(3) The Registrar may specify matters to which an inquiry under this section is to relate either at the time when an appointment is made under subsection (2) or at any later time.(4) Where the Registrar makes an appointment under subsection (2) as regards a registered scheme, he shall as soon as reasonably practicable give a notice in writing of the appointment and of the matter under inquiry to the relevant employer and designated person of the scheme.(5) Where an appointed person reasonably believes a person has in his possession or under his control any document which is likely to contain information relevant to the registered scheme or matter under inquiry, he may by notice in writing require that person to— (Amended 9 of 2020 s. 26)(a) produce to the appointed person, within the time and at the place specified in the notice, such document which is in that person’s possession or under his control as may be specified in the notice;(b) give to the appointed person such explanation or further particulars in respect of a document produced in compliance with a requirement under paragraph (a) as the appointed person shall specify;(c) attend before the appointed person at the time and place specified in the notice and answer truthfully and to the best of his ability such question relating to the scheme or matter under inquiry as the appointed person may put to him; and(d) give to the appointed person all assistance in connection with the inquiry which he is reasonably able to give.(6) Subject to section 76, where an appointed person makes a requirement of a person under subsection (5), the latter shall comply with the requirement.(7) An appointed person may examine on oath any person of whom a requirement is made under subsection (5)(b) or (c) provided he has first informed that person of the limitation imposed under subsection (8).(8) Subject to section 76 a person shall be obliged to answer a question put to him under this section by the appointed person, but neither the question nor the answer shall be admissible in evidence against him in criminal proceedings other than proceedings for an offence under section 36 of the Crimes Ordinance (Cap. 200) or section 79, or for perjury, in respect of the answer.(9) If so requested by any person who is or would be affected by the exercise by the appointed person of any power under this section, the appointed person shall produce a copy of his appointment for inspection by that person.(10) Any costs or expenses incurred by an appointed person (other than a public officer) in conducting an inquiry under this section shall be paid out of the MPFA Administration Account established and maintained under section 6M of the Mandatory Provident Fund Schemes Ordinance (Cap. 485). (Amended 4 of 1998 s. 4)(11) An appointed person may, and if so directed by the Registrar shall, make an interim report to the Registrar and on the conclusion of the inquiry shall make a final report to the Registrar.(12) Nothing in this section shall be construed as requiring an authorized institution within the meaning of the Banking Ordinance (Cap. 155) to disclose any information or produce any record or other document relating to the affairs of a customer of it to the appointed person unless—(a) the customer is a person whom the appointed person has reason to believe may be able to give information relevant to an inquiry under this section; and(b) the Registrar is satisfied that the disclosure or production is necessary for the purposes of the inquiry and certifies in writing that is the case,and, where the conditions in paragraphs (a) and (b) are met in respect of any such institution, such institution shall comply with any provision of subsection (5).(13) Any person who without reasonable excuse—(a) fails to comply with a requirement made under subsection (5);(b) in answering a question put to him under subsection (5)(c) says anything which is false in a material particular and which he—(i) knows to be false in such particular; or(ii) has no reasonable ground to believe to be true in such particular,commits an offence and shall be liable on summary conviction to a fine at level 4 and to imprisonment for 6 months.(Amended E.R. 5 of 2021)Miscellaneous 37. Change in domicile (1) Where the domicile of a registered scheme changes, the designated person of the scheme shall, as soon as reasonably practicable, supply to the Registrar particulars in writing of the change.(2) Where the Registrar receives particulars referred to in subsection (1), he may by notice in writing require the relevant designated person to make, within such period as is specified in the notice (being a period of not less than 1 month beginning on the date of the notice), an application in writing to him to have another submission described in paragraph 3 of Part 3 of Schedule 1 substituted for the submission accepted when the application for the registration of the relevant registered scheme was allowed.(3) Where the Registrar disallows an application made under subsection (2) relating to a registered scheme and he is satisfied that the domicile of the scheme has changed, he may issue a proposal under section 42 to cancel the registration of the scheme.(4) Where the Registrar allows an application under subsection (2), he shall record the change of domicile in the register. (Added 53 of 1995 s. 18) 38. New trustee to give undertaking Where any person—(a) who—(i) (in the case of an individual) is ordinarily resident in Hong Kong and is the holder of an identity card within the meaning of the Registration of Persons Ordinance (Cap. 177); or(ii) (in the case of a body corporate) has a place of business in Hong Kong; and(b) who has not given an undertaking which is in force for the time being as regards a registered scheme governed by a trust,is appointed as a trustee of the trust, he shall within 28 days after such appointment send to the Registrar an undertaking stating that he undertakes to perform in relation to the scheme the functions imposed or conferred on a designated person by this Ordinance. 39. Death etc. of designated person etc. (1) Where the Registrar reasonably believes that—(a) the designated person of a registered scheme—(i) has died;(ii) is incapacitated;(iii) cannot be contacted; or(iv) refuses or neglects to act as such designated person;(b) in case there is more than one such designated person, each of them—(i) has died;(ii) is incapacitated;(iii) cannot be contacted; or(iv) refuses or neglects to act as such designated person; or(c) in case such designated person is a body of persons (whether incorporated or unincorporated), it is being or has been wound up or has otherwise ceased to exist or refuses or neglects to act as such designated person,he may, by notice in writing given to the relevant employer or administrator of the scheme or such other person as he considers appropriate, require necessary steps to be taken within such period as is specified in the notice (being a period of not less than 1 month beginning on the date of the notice) to have the designated person replaced.(2) Where the Registrar reasonably believes that—(a) the person by whom a submission described in paragraph 3 of Part 3 of Schedule 1 was made as regards a registered scheme has died or is incapacitated or cannot be contacted; or(b) in case there is more than one such person, each of them has died or is incapacitated or cannot be contacted; or(c) in case the person is a body of persons (whether incorporated or unincorporated), it is being or has been wound up or has otherwise ceased to exist,he may by notice in writing given to the designated person of the scheme require to be made to him within such period as is specified in the notice (being a period of not less than 1 month beginning on the date of the notice) an application in writing to substitute another submission for the relevant submission (as defined in subsection (6)).(3) Where the Registrar gives a notice to a person under subsection (1) as regards a registered scheme, the person shall within the period specified in the notice lodge with the Registrar an undertaking described in section 15(f) and relating to the scheme given by such person as the Registrar may consider suitable.(4) Where an application is made in respect of a registered scheme under subsection (2), the application shall be allowed if—(a) the application is accompanied by a submission described in paragraph 3 of Part 3 of Schedule 1 and relating to the scheme; and(b) the Registrar is satisfied that such submission is in an appropriate form and the person making the submission is a suitable person to make it.(5) Where the Registrar—(a) receives an undertaking relating to a registered scheme under subsection (3), the person who gives the undertaking shall thenceforth become the designated person of the scheme;(b) allows an application relating to a registered scheme made under subsection (2), the submission shall thenceforth take the place of the relevant submission (as defined in subsection (6)) as regards the scheme for the purposes of this Ordinance.(6) In relation to an application under this section, the relevant submission (有關願受管轄書) means the submission to jurisdiction accepted by the Registrar when the application for registration of the relevant registered scheme was allowed. 40. Release from undertaking (1) The Registrar may on an application in writing by a person who has given an undertaking referred to in section 15(f), 38 or 39(3) release such person from the undertaking.(2) Where a person makes an application under subsection (1) in respect of a registered scheme and—(a) he is for the time being the only designated person of the scheme; or(b) (where the scheme is governed by a trust and the applicant has ceased or will cease acting as a trustee of the trust) the terms of the relevant trust instrument require appointment of a trustee to replace the applicant,the Registrar shall not allow the application unless—(i) the application is accompanied by a new undertaking described in section 15(f) and relating to the scheme; and(ii) the Registrar is satisfied that the person giving the new undertaking is a suitable person to give it.(3) Where the Registrar allows an application under subsection (2), the person who gives the new undertaking shall thenceforth take the place of the applicant as the designated person of the relevant registered scheme. 41. Release from submission (1) A person who has made a submission described in paragraph 3 of Part 3 of Schedule 1 may apply in writing to the Registrar to release him from the submission and substitute for it a submission by another person.(2) Where a person makes an application under subsection (1) in respect of a registered scheme and he is for the time being the only person who made the submission in respect of the scheme, the Registrar shall not allow the application unless—(a) the application is accompanied by a submission described in paragraph 3 of Part 3 of Schedule 1 and relating to the same scheme; and(b) the Registrar is satisfied that the submission is in an appropriate form and the person proposing to make the submission is a suitable person to make it.(3) Where the Registrar allows an application made under subsection (1) relating to a registered scheme, the submission which accompanied the application shall thenceforth, as regards the scheme, for the purposes of this Ordinance take the place of the submission accepted by the Registrar when the application for registration of such scheme was allowed or, in case the applicant is one of the persons who made the original submission, take the place of such submission to the extent it was made by the applicant. Part VI Cancellation of Registration 42. Grounds for cancellation of registration Where in relation to a registered scheme it appears to the Registrar that—(aa) a condition imposed under section 18(4A), or amended under section 18(4B), in respect of the scheme is not complied with; (Added 9 of 2020 s. 27)(a) any requirement of section 20 is not complied with;(ab) any requirement of section 20A(1), (2) or (3) is not complied with; (Added 9 of 2020 s. 27)(b) the requirement of section 21 is not complied with;(c) any requirement of section 24 is not complied with;(d) any requirement under section 26(1) is not complied with;(e) any requirement of section 27 is not complied with; (Amended 9 of 2020 s. 27)(f) the requirement of section 28(3) is not complied with;(fa) a notice has been given under section 29(1); (Added 53 of 1995 s. 19)(g) any requirement of section 30(1) or (2) is not complied with; (Amended 9 of 2020 s. 27)(h) the requirement of section 31 is not complied with;(i) any requirement under section 32(1) is not complied with;(j) any requirement under section 33(1) or (1A) is not complied with; (Amended 9 of 2020 s. 27)(k) the requirement of section 37(1) is not complied with;(l) a notice has been given under section 37(2) and no application was made under that section as regards the scheme or that an application made under that section is refused;(m) a notice has been given under section 39(1) and no undertaking was given to the Registrar in accordance with section 39(3);(n) a notice has been given under section 39(2) and no application was made under that section as regards the scheme; (Amended 9 of 2020 s. 27)(na) any requirement of section 67(2)(gab) is not complied with; (Added 9 of 2020 s. 27)(nb) the requirement of section 70B is not complied with; (Added 9 of 2020 s. 27)(o) on information available to him the cancellation of the registration of the scheme will be in the interests of the members of the scheme as a whole; (Amended 9 of 2020 s. 27)(p) any term of the scheme allows a person other than an eligible person to be a member of the scheme; (Added 9 of 2020 s. 27)(q) not all members of the scheme are eligible persons; (Added 9 of 2020 s. 27)(r) the scheme is not, or has ceased to be, an occupational retirement scheme; or (Added 9 of 2020 s. 27)(s) the cancellation of the registration of the scheme is in the public interest, (Added 9 of 2020 s. 27)the Registrar may issue a proposal to cancel registration of the scheme. 43. Proposal to cancel registration (1) Where the Registrar issues a proposal to cancel registration of a registered scheme under section 42, he shall—(a) publish a notice containing the proposal in a way the Registrar considers appropriate; and (Replaced 9 of 2020 s. 28)(b) give a notice in writing of the proposal to the relevant employer and designated person of the scheme requiring the employer to—(i) cause a copy of the notice to be sent to each member of the scheme; or(ii) display an appropriate notice of the Registrar’s notice and make the latter available for inspection by such member.(2) A notice published or given by the Registrar under subsection (1) shall—(a) state the reason for issuing the proposal; and(b) state that representations or objections may be made as regards the proposed cancellation to the Registrar within such period (being a period of not less than 1 month beginning on the date of the notice) as shall be specified in the notice.(3) The Registrar may on an application in writing in his absolute discretion—(a) withdraw any proposal issued under section 42; or(b) extend the period referred to in subsection (2).(4) Where the court has made an order as regards a registered scheme under section 44(1) and the Registrar withdraws a proposal as regards the scheme under subsection (3), he shall make an application under section 44(3)(a) for the withdrawal of the order.(5) A person who fails to comply with a requirement under subsection (1)(b)(i) or (ii) commits an offence and is liable on summary conviction to a fine at level 3. (Replaced 9 of 2020 s. 28) 44. Court may order freezing of assets (1) Where the Registrar issues, or intends to issue, a proposal to cancel the registration of a registered scheme under section 42, the court may on an application by the Registrar order that— (Amended 9 of 2020 s. 29)(a) the assets of the scheme shall not be assigned, transferred or otherwise disposed of;(b) no payment out of the assets of the scheme shall be made, whether to a member or otherwise,except in accordance with the court order.(1A) Before making an order under subsection (1), the court must satisfy itself, so far as it can reasonably do so, that—(a) it is desirable that the order be made; and(b) the order will not unfairly prejudice any person. (Added 9 of 2020 s. 29)(2) Any—(a) asset assigned, transferred or disposed of; or(b) payment made out of the assets of the relevant registered scheme, in contravention of an order made under subsection (1) shall be recoverable by such person and, after being so recovered, disposed of in such manner as the court may specify in the order.(3) An order made under subsection (1) as regards a registered scheme shall cease to have effect—(a) if it is withdrawn by the court upon an application by the Registrar;(b) (Where an appeal is made under section 46 against the cancellation of the registration of the scheme) if the Appeal Board directs the Registrar to restore the registration of the scheme under section 62(4)(d); or(c) upon the making of a winding up order (if any) under section 48(2) as regards the scheme. 45. Cancellation of registration (1) Where—(a) a notice of a proposed cancellation of the registration of a registered scheme has been given in accordance with section 43(1);(b) the period during which representations or objections may be made has expired;(c) not less than 2 months have expired since the date of such notice; and(d) the Registrar, having considered the representations or objections (if any) made as regards the proposed cancellation, is satisfied that—(i) a condition imposed under section 18(4A), or amended under section 18(4B), in respect of the scheme is not complied with; (Replaced 9 of 2020 s. 30)(ia) any requirement of section 20 is not complied with; (Added 9 of 2020 s. 30)(ib) any requirement of section 20A(1), (2) or (3) is not complied with; (Added 9 of 2020 s. 30)(ii) the requirement of section 21 is not complied with;(iii) any requirement of section 24 has not been complied with;(iv) a requirement under section 26(1) is not complied with;(v) any requirement of section 27 is not complied with; (Amended 9 of 2020 s. 30)(vi) the requirement of section 28(3) is not complied with; (via) a notice has been given under section 29(1); (Added 53 of 1995 s. 20)(vii) any requirement of section 30(1) or (2) is not complied with; (Amended 9 of 2020 s. 30)(viii) the requirement of section 31 is not complied with;(ix) a requirement under section 32(1) is not complied with;(x) any requirement under section 33(1) or (1A) is not complied with; (Amended 9 of 2020 s. 30)(xi) the requirement of section 37(1) is not complied with;(xii) a notice has been given under section 37(2) and no application was made under that section as regards the scheme or that an application made under that section is refused;(xiii) a notice has been given under section 39(1) and no undertaking was given to the Registrar in accordance with section 39(3);(xiv) a notice has been given under section 39(2) and no application was made under that section as regards the scheme; (Amended 9 of 2020 s. 30)(xiva) any requirement of section 67(2)(gab) is not complied with; (Added 9 of 2020 s. 30)(xivb) the requirement of section 70B is not complied with; (Added 9 of 2020 s. 30)(xv) the cancellation of the registration of the scheme will be in the interests of the members of the scheme as a whole; (Amended 9 of 2020 s. 30)(xvi) any term of the scheme allows a person other than an eligible person to be a member of the scheme; (Added 9 of 2020 s. 30)(xvii) not all members of the scheme are eligible persons; (Added 9 of 2020 s. 30)(xviii) the scheme is not, or has ceased to be, an occupational retirement scheme; or (Added 9 of 2020 s. 30)(xix) the cancellation of the registration of the scheme is in the public interest, (Added 9 of 2020 s. 30)the Registrar may cancel the registration of the scheme.(2) Where the Registrar cancels the registration of a registered scheme under subsection (1), he shall—(a) publish a written notice of the cancellation in a way the Registrar considers appropriate; and (Replaced 9 of 2020 s. 30)(b) give a notice in writing to the relevant employer of the scheme requiring him to—(i) cause a copy of the notice to be sent to each member of the scheme; or(ii) display an appropriate notice of the Registrar’s notice and make the latter available for inspection by such member.(3) A notice published or given by the Registrar under subsection (2) shall state—(a) the decision of the Registrar;(b) that appeal against the cancellation may be made by the relevant employer of the scheme to the Appeal Board within 2 months after the date of the notice; and(c) the date on which the cancellation will come into effect.(4) A person who fails to comply with a requirement under subsection (2)(b)(i) or (ii) commits an offence and is liable on summary conviction to a fine at level 3. (Replaced 9 of 2020 s. 30) 46. Appeal against cancellation Where the Registrar cancels the registration of a registered scheme under section 45(1), the relevant employer of the scheme may, within 2 months after the date of the notice given under section 45(2)(b), appeal to the Appeal Board against the cancellation. 47. Coming into effect of cancellation (1) A cancellation under section 45(1) shall not come into effect—(a) where no appeal is made in relation to it under section 46, until the period during which such an appeal may be made has expired; or(b) where such an appeal is made, pending determination of the appeal or, in case such appeal is withdrawn, before such withdrawal.(2) Where the Registrar cancels the registration of a registered scheme, in order to afford an opportunity to enable the requirement of or under this Ordinance which caused him to cancel the registration to be complied with, he may defer the coming into effect of the cancellation and if so, shall give a notice in writing of deferment to the designated person and relevant employer of the scheme.(3) The Registrar shall—(a) publish a notice of the coming into effect of the cancellation in a way the Registrar considers appropriate; and (Replaced 9 of 2020 s. 31)(b) give a notice in writing of the coming into effect of the cancellation to the relevant employer of the relevant scheme requiring him to—(i) cause a copy of the notice to be sent to each member of the scheme; or(ii) display an appropriate notice of the Registrar’s notice and make the latter available for inspection by such member.(4) A person who fails to comply with a requirement under subsection (3)(b)(i) or (ii) commits an offence and is liable on summary conviction to a fine at level 3. (Replaced 9 of 2020 s. 31) 48. Application for winding up of Hong Kong domiciled schemes (1) Where the Registrar cancels the registration of a Hong Kong domiciled scheme, the Registrar, the relevant employer of the scheme or any member of the scheme may apply to the court to exercise its power under this section.(2) Upon an application made under subsection (1) the court may, if it considers it just and equitable to do so—(a) order the scheme to be wound up in accordance with a proposal submitted by the applicant;(b) order the scheme to be wound up in accordance with a proposal so submitted but modified in a manner specified by the court; or(c) order the scheme to be wound up by the court.(3) Where the court makes an order under subsection (2), the provisions of Part VII shall apply. Part VII Winding Up of Hong Kong Domiciled Schemes 49. Appointment of liquidator (1) Where the court makes an order under section 48(2), it shall appoint a liquidator as regards the scheme being wound up for the purposes of conducting the winding up and performing related functions under this Ordinance. (Amended 9 of 2020 s. 32)(2) The court may on an application made by the Registrar remove a liquidator from his office.(3) A liquidator may by notice in writing given to the Registrar of the High Court resign from his office. (Amended 25 of 1998 s. 2)(4) Where the office of a liquidator becomes vacant by whatever reason, the court may appoint any other person to fill the vacancy. 50. Remuneration of liquidator Where a person other than a public officer is appointed liquidator as regards a scheme under section 49(1), the person is to receive such remuneration as is determined— (Amended 9 of 2020 s. 33)(a) where there is a consultative committee formed in respect of the members of the scheme, by agreement between the liquidator and the committee; or(b) where there is no consultative committee or the liquidator and the committee fail to agree, by the court. 51. Powers of liquidator A liquidator appointed as regards a scheme under section 49(1) has power— (Amended 9 of 2020 s. 34)(a) to sell the assets of the scheme by public auction or private contract, with power to transfer the whole thereof to any person or company, or to sell the same in parcels;(b) (notwithstanding any term of the scheme) to bring or defend any action or other legal proceedings in the name and on behalf of the beneficiaries under the scheme;(c) to make any compromise or arrangement with respect to any debt, claim or liability relating to the assets of the scheme;(d) to engage the service of other persons to assist him in the performance of his functions;(e) to do such other things as may be necessary for winding up the scheme and distributing its assets. 52. Vesting of assets of scheme in liquidator (1) Where the court makes an order as regards a scheme under section 48(2), all the assets of the scheme shall vest thereupon in the liquidator who shall take such assets into his custody.(2) The court may, upon or at any time after making the order under section 48(2), require any authorized insurer, trustee, banker, agent, the relevant employer of the scheme or any other person to pay, deliver, convey, surrender or transfer within such time as the court may direct to the liquidator any money, property, books or records to which the liquidator is entitled by virtue of subsection (1).(3) On the appointment of a liquidator, all the powers of the administrator of the relevant scheme acting in his capacity as such shall cease.(Amended 9 of 2020 s. 35) 53. Effect of winding-up order (1) Where the court makes an order under section 48(2) as regards a scheme whose registration was cancelled by the Registrar, the winding up of the scheme shall be deemed to have commenced on the date of the notice published under section 43(1)(a) as regards the scheme. (Amended 9 of 2020 s. 36)(2) Any benefit which but for this subsection would become payable to a member of the scheme under the scheme on or after the commencement of the winding up shall not be payable and any such benefit which has been paid to a member shall be recoverable by the liquidator as a civil debt due to the beneficiaries under the scheme. 54. Avoidance of preference in certain cases Every—(a) transfer of asset of a scheme; and (Amended 9 of 2020 s. 37)(b) encumbrance created over such asset,in favour of any creditor with a view to giving such creditor (or any surety or guarantor for the debt due to such creditor) a preference over the other creditors shall, if the winding up of the scheme by virtue of a winding-up order made under section 48(2) as regards the scheme commences within 6 months after the date of such transfer or creation, be deemed fraudulent and void as against the liquidator appointed as regards the scheme. 55. Saving of bona fide transactions, etc.

Nothing in sections 52, 53 and 54 shall invalidate—(a) any payment of benefit to a member of a scheme under the scheme before the commencement of the winding up of the scheme; or (Amended 9 of 2020 s. 38)(b) any bona fide contract, dealing or transaction made over any asset of the scheme for valuable consideration. 56. Distribution of assets (1) Subject to subsections (2), (3) and (4), the assets of a scheme subject to a winding-up order made under section 48(2) are on its winding up to be applied by the liquidator in satisfaction of its liabilities as at the date on which the winding up commenced pari passu. (Amended 9 of 2020 s. 39)(2) The assets remaining after payment of the actual expenses incurred in realizing any of the assets of the scheme shall be applied in satisfaction of the following liabilities, which shall be satisfied in the following order of priority—(a) the remuneration of and expenses incurred by the liquidator;(b) liabilities to general creditors;(c) (unless the terms of the scheme otherwise provide) vested liabilities to the beneficiaries of the scheme as at the date on which the relevant winding-up order is made; and(d) (unless the terms of the scheme otherwise provide) such part of the past service liabilities to the beneficiaries of the scheme (if any) which exceeds the vested liabilities thereto as at the date on which the relevant winding-up order is made.(3) The surplus (if any) remaining after satisfaction of all liabilities mentioned in subsection (2) shall be paid to the person who was the relevant employer of the scheme immediately before the registration of the scheme was cancelled, unless the terms of the scheme otherwise provide. (Amended 9 of 2020 s. 39)(4) Where the assets of the scheme are not sufficient to meet its liabilities, the court may, notwithstanding any term of the scheme, direct that—(a) those liabilities which are of a class or description specified by the court shall be discharged before any other liability of the scheme is wholly or partly discharged; or(b) as between them the discharge of those which are of specified classes or descriptions shall be preferred in an order also specified by the court. 57. The court’s power after winding up (1) Where the court makes an order as regards a scheme under section 48(2), the liquidator appointed as regards the scheme may make an application to the court on behalf of any beneficiary of the scheme.(2) In an application made under subsection (1) as regards a scheme, the liquidator may name the relevant employer or administrator of the scheme or any person who is concerned with the operation and management of the scheme to be the respondent in the application.(3) On an application made under subsection (1) on behalf of a beneficiary of a scheme, the court may— (Amended 9 of 2020 s. 40)(a) determine a sum which in its opinion equals the shortfall (if any) between the beneficiary’s vested benefits under the scheme as at the date of the commencement of the winding up of the scheme and the amount received by him under section 56(2); and(b) if it is satisfied that the shortfall referred to in paragraph (a) is caused by any act or omission of any respondent in the application, give judgment against the respondent for an amount equal to the sum determined under paragraph (a).(Amended 9 of 2020 s. 40) 58. Court may give directions The court may upon application by a liquidator give such directions as it thinks fit in relation to any matter arising under the winding up. 59. Exercise of the powers of the court Unless otherwise ordered by the court in a particular case, the powers of the court under this Part shall be exercisable by—(a) the Registrar of the High Court;(aa) any Senior Deputy Registrar of the High Court; (Added 10 of 2005 s. 183)(b) any Deputy Registrar of the High Court; or (Amended 10 of 2005 s. 183)(c) any Assistant Registrar of the High Court appointed by the Registrar of the High Court for the purposes of this section.(Amended 25 of 1998 s. 2) 60. Offences relating to winding up Any person who—(a) without reasonable excuse fails to comply with a direction given under section 52(2); or(b) provides any information or makes any representation which is false in a material particular and which—(i) he knows to be false in such particular; or(ii) he has no reasonable ground to believe to be true in such particular,to a liquidator,commits an offence and shall be liable on summary conviction to a fine at level 4 and to imprisonment for 6 months.(Amended E.R. 5 of 2021) Part VIII Appeals 61. Appeal Board (1) Every appeal made under sections 8, 13, 19 and 46 shall be determined by the Appeal Board to be known as the Occupational Retirement Schemes Appeal Board.(2) The Chief Executive shall appoint a person to be the Chairman of the Appeal Board and such number of persons as he thinks fit to be the Deputy Chairmen of the Appeal Board. (Amended 31 of 1999 s. 3)(3) Subject to subsection (7), the Chairman or any Deputy Chairman shall be appointed for a term of not more than 2 years but may be reappointed.(3A) A person appointed under subsection (2) to be the Chairman of the Appeal Board must be—(a) a person who is eligible for appointment as a judge of the High Court under section 9 of the High Court Ordinance (Cap. 4);(b) a former Justice of Appeal of the Court of Appeal; or(c) a former judge or a former deputy judge of the court. (Added 9 of 2020 s. 41)(4) A person appointed under subsection (2) to be the Deputy Chairman, or one of the Deputy Chairmen, of the Appeal Board must be a solicitor or barrister admitted under the Legal Practitioners Ordinance (Cap. 159). (Amended 9 of 2020 s. 41)(5) The Chief Executive shall appoint a panel of persons not being public officers whom he considers suitable for appointment under section 62 as members of the Appeal Board. (Amended 31 of 1999 s. 3)(6) An appointment under subsection (2) or (5) shall be notified in the Gazette.(7) The Chairman and any Deputy Chairman or person appointed under subsection (5) may at any time resign by notice in writing to the Chief Executive. (Amended 31 of 1999 s. 3)(8) The Chairman and any Deputy Chairman or person appointed under subsection (5) shall be remunerated out of money provided by the Legislative Council for that purpose at a rate that the Financial Secretary may determine. 62. Constitution and powers of Appeal Board (1) The Appeal Board shall consist of the Chairman or a Deputy Chairman who shall preside at the hearing and such number of persons, not being fewer than 2, from the panel referred to in section 61(5) as the Chairman may appoint to be members of the Appeal Board to hear any appeal.(2) In relation to the hearing of appeals every question before the Appeal Board shall be determined by the opinion of the majority of the members hearing the appeal except a question of law which shall be determined by the Chairman or (where appropriate) the Deputy Chairman; in the case of an equality of votes the Chairman or Deputy Chairman shall have a casting vote.(3) In hearing an appeal the Appeal Board may—(a) receive and consider any material, whether by way of oral evidence, written statements, documents or otherwise, and whether or not it would be admissible in a court of law;(b) by notice in writing signed by the Chairman, summon any person—(i) to produce to it any document that is relevant to the appeal and is in his custody or under his control; or(ii) to appear before it and to give evidence relevant to the appeal;(c) administer oaths and affirmations;(d) require evidence to be given on oath or affirmation;(e) make an award of such sum, if any, in respect of the costs involved in the appeal as is just and equitable in all the circumstances of the case.(4) After hearing an appeal made in respect of an occupational retirement scheme—(aa) under section 8(1), the Appeal Board may determine the appeal by upholding, varying or quashing the Registrar’s decision, and making any necessary consequential order; (Added 9 of 2020 s. 42)(a) under section 8(2), the Appeal Board may determine the appeal by confirming the Registrar’s decision or directing the Registrar to issue an exemption certificate in respect of the scheme; (Amended 9 of 2020 s. 42)(b) under section 13, the Appeal Board may determine the appeal by confirming the Registrar’s decision or directing the Registrar to restore the relevant exemption certificate;(ba) under section 19(1), the Appeal Board may determine the appeal by upholding, varying or quashing the Registrar’s decision, and making any necessary consequential order; (Added 9 of 2020 s. 42)(c) under section 19(2), the Appeal Board may determine the appeal by confirming the Registrar’s decision or directing the Registrar to register the scheme; (Amended 9 of 2020 s. 42)(d) under section 46, the Appeal Board may determine the appeal by confirming the Registrar’s decision or directing the Registrar to restore the registration of the scheme. 63. Appeal Board’s decision is final Subject to section 65, the determination of an appeal by the Appeal Board or any order as to costs made by the Appeal Board shall be final. 64. Supplementary provisions relating to appeals (1) The procedure and practice of the Appeal Board shall, subject to this Ordinance, be determined by the Chairman.(2) If the Chairman is precluded by illness, absence from Hong Kong or any other cause from exercising his functions, the Chief Executive may appoint a Deputy Chairman to act as Chairman and as such to exercise all the functions of the Chairman during the period of his appointment. (Amended 31 of 1999 s. 3)(3) If a person appointed by the Chairman under section 62(1) to hear an appeal is precluded by illness, absence from Hong Kong or any other cause from exercising his functions, the Chairman may appoint any other person from the panel referred to in section 61(5) to act in his place.(4) In the hearing of an appeal, the appellant and the Registrar shall be entitled to be heard either in person or through a solicitor or barrister and if the appellant is a body corporate, through any of its directors or employees or if a partnership, through any of the partners or, with the leave of the Appeal Board, through any other person.(5) In relation to any appeal to the Appeal Board, the members of the Appeal Board, the appellant, and any witness, representative or other person appearing before the Appeal Board shall have the same privileges and immunities as they would have if the proceedings were civil proceedings before a court.(6) Any sum awarded to the Registrar under section 62(3)(e) shall be a debt due to the Registrar and recoverable in the District Court and any sum payable by the Registrar under such an award shall be charged on the MPFA Administration Account established and maintained under section 6M of the Mandatory Provident Fund Schemes Ordinance (Cap. 485). (Amended 4 of 1998 s. 4) 65. Case may be stated for Court of Appeal (1) The Appeal Board may refer any question of law arising in an appeal to the Court of Appeal for determination by way of case stated.(2) On the hearing of the case, the Court of Appeal may amend the case or order it to be sent back to the Appeal Board for amendment.(3) Where a case is stated under subsection (1), the Appeal Board shall not determine the relevant appeal before the Court of Appeal determines the relevant point of law. 66. Offences relating to appeal Any person who without reasonable excuse refuses or fails—(a) to attend and give evidence when required to do so by the Appeal Board;(b) to answer truthfully and completely questions put to him by the Appeal Board;(c) to produce any document which he is required by the Appeal Board to produce,commits an offence and shall be liable on summary conviction to a fine at level 4 and to imprisonment for 6 months.(Amended E.R. 2 of 2014) Part VIIIA Inspection and Investigation (Part VIIIA added 9 of 2020 s. 43) 66A. Interpretation In this Part—investigation requirement (調查要求) means a requirement made under section 66D;scheme (計劃) means a registered scheme or an exempted scheme. 66B. General powers of inspection (1) An authorized person may, at any reasonable time during ordinary business hours, enter premises at which the person reasonably believes that—(a) the affairs of a scheme are being conducted; or(b) any information or document relating to a scheme is being kept,for the purpose of ascertaining whether or not the provisions of this Ordinance are being complied with or have been complied with.(2) This section does not authorize an authorized person to enter premises that are being used as a private dwelling.(3) An authorized person must give the occupier of the premises reasonable notice of the intention to enter the premises.(4) However, an authorized person may enter premises under this section without giving notice and without the consent of the occupier—(a) if entry is required urgently and the Registrar has expressly authorized entry; or(b) if giving notice or obtaining the consent would defeat the purpose for which it is intended to exercise the power of entry.(5) An authorized person who enters premises under this section may do any of the following acts—(a) inspect the premises and examine any record found on the premises that the authorized person reasonably believes relates to a scheme;(b) take photographs or videos of the premises or of any thing found on the premises that the authorized person reasonably believes relates to a scheme;(c) require the occupier of the premises or any person who is apparently an employee or agent of that occupier to provide the authorized person with such assistance and facilities as are reasonably necessary to enable the authorized person to perform his or her functions;(d) require any person on the premises to produce for inspection records under the control of the person relating to a scheme and, if any such records are not legible or are not in the English or Chinese language, to produce a written statement in English or Chinese setting out the contents of those records;(e) make copies of all or any part of any such records or statements.(6) A person may exercise a power conferred by this section only if the person—(a) is in possession of a warrant of authority issued by the Registrar; and(b) on being requested to do so, produces that warrant to the occupier of the premises sought to be entered, inspected or examined or to any other person in relation to whom it is sought to exercise that power. 66C. Investigation (1) The Registrar may investigate any matter if, in relation to a scheme, the Registrar—(a) has reasonable cause to believe that a person may have contravened the provisions of this Ordinance;(b) has reasonable cause to believe that circumstances may exist that could prejudice the interests of the members of the scheme; or(c) thinks it is necessary to investigate the matter in order to decide whether to exercise any power under section 11, 12, 42 or 45.(2) The Registrar may—(a) carry out the investigation itself; or(b) in writing direct a person employed by the Registrar to carry out the investigation.(3) In carrying out the investigation, the Registrar or the person referred to in subsection (2)(b) may exercise the powers under section 66D.(4) If the Registrar directs a person under subsection (2)(b), the Registrar must provide the person with a copy of the direction.(5) Even though the Registrar has directed a person to carry out an investigation, the Registrar may still exercise the powers under section 66D for the purpose of the investigation.(6) If section 36(2)(a) applies in relation to a scheme, the Registrar must first appoint a person to conduct an inquiry under section 36 before exercising the power under subsection (2) in relation to the scheme. 66D. Investigation powers (1) An investigator may by written notice require a person—(a) to produce, within the time and at the place specified in the notice, any record or document specified in the notice—(i) that is or may be relevant to any matter under investigation; and(ii) that is in the person’s possession or under the person’s control;(b) to attend before the investigator at the time and place specified in the notice, and answer any question relating to any matter under investigation that the investigator may raise with the person;(c) to respond to any written question relating to any matter under investigation that the investigator may raise with the person; or(d) to give the investigator any assistance in connection with the investigation that the person is reasonably able to give.(2) If a person produces a record or document in compliance with a requirement under subsection (1)(a), the investigator may require the person to give an explanation or further particulars in respect of the record or document.(3) If a person gives any answer, response, explanation or particulars in compliance with a requirement under subsection (1) or (2), the investigator may by written notice require the person to verify, within the time specified in the notice, the answer, response, explanation or particulars by a statutory declaration.(4) If, for the reason that the information concerned is not within the person’s knowledge or possession, a person does not give any answer, response, explanation or particulars in compliance with a requirement under subsection (1) or (2), the investigator may by written notice require the person to verify, within the time specified in the notice, that reason and fact by a statutory declaration.(5) If the investigator is directed under section 66C(2)(b) to carry out the investigation, the investigator must provide a copy of the direction given under the section to a person when making an investigation requirement of the person. 66E. Offences of failing to comply with investigation requirement (1) A person commits an offence if the person, without reasonable excuse, fails to comply with an investigation requirement made of the person.(2) A person commits an offence if the person, with intent to defraud, fails to comply with an investigation requirement made of the person.(3) A person commits an offence if, being an officer or employee of a company, the person, with intent to defraud, causes or allows the company to fail to comply with an investigation requirement made of the company.(4) A person is not excused from complying with an investigation requirement made of the person only on the ground that to do so might tend to incriminate the person.(5) A person who commits an offence under subsection (1) is liable—(a) on summary conviction—to a fine at level 5 and to imprisonment for 6 months; or(b) on conviction on indictment—to a fine of $200,000 and to imprisonment for 1 year.(6) A person who commits an offence under subsection (2) or (3) is liable—(a) on summary conviction—to a fine at level 6 and to imprisonment for 6 months; or(b) on conviction on indictment—to a fine of $1,000,000 and to imprisonment for 7 years.(7) If a member of a professional body is alleged to have committed an offence under subsection (1), (2) or (3), the Registrar may refer the matter to the professional body. 66F. Offences of giving false or misleading information (1) A person commits an offence if—(a) in purported compliance with an investigation requirement made of the person, the person produces any record or document, or gives any answer, response, explanation or particulars, that is or are false or misleading in a material respect; and(b) the person knows that, or is reckless as to whether, the record, document, answer, response, explanation or particulars is or are false or misleading in a material respect.(2) A person commits an offence if, in purported compliance with an investigation requirement made of the person, the person, with intent to defraud, produces any record or document, or gives any answer, response, explanation or particulars, that is or are false or misleading in a material respect.(3) A person commits an offence if, being an officer or employee of a company, the person, with intent to defraud, causes or allows the company, in purported compliance with an investigation requirement made of the company, to produce any record or document, or give any answer, response, explanation or particulars, that is or are false or misleading in a material respect.(4) A person who commits an offence under subsection (1) is liable—(a) on summary conviction—to a fine at level 6 and to imprisonment for 6 months; or(b) on conviction on indictment—to a fine of $1,000,000 and to imprisonment for 2 years.(5) A person who commits an offence under subsection (2) or (3) is liable—(a) on summary conviction—to a fine at level 6 and to imprisonment for 6 months; or(b) on conviction on indictment—to a fine of $1,000,000 and to imprisonment for 7 years.(6) If a member of a professional body is alleged to have committed an offence under subsection (1), (2) or (3), the Registrar may refer the matter to the professional body. 66G. Court’s inquiry into failure to comply with investigation requirement (1) An investigator may, by originating summons, apply to the court for an inquiry into a person’s failure to comply with an investigation requirement.(2) On application, the court may—(a) order the person to comply with the requirement within the period specified by the court; and(b) punish the person, and any other person knowingly involved in the failure, in the same way as if the person and (if applicable) that other person had been guilty of contempt of court.(3) An originating summons under subsection (1) is to be in Form No. 10 in Appendix A to the Rules of the High Court (Cap. 4 sub. leg. A). 66H. Criminal proceedings and applications under sections 66E, 66F and 66G (1) No criminal proceedings may be brought against a person under section 66E or 66F in respect of any conduct if—(a) an application has previously been made against the person under section 66G in respect of the same conduct; and(b) either—(i) the application remains pending; or(ii) the court has exercised, or declined to exercise, its power under section 66G(2)(b) in relation to the application.(2) No application may be made against a person under section 66G in respect of any conduct if—(a) criminal proceedings have previously been brought against the person under section 66E or 66F in respect of the same conduct; and(b) either—(i) those proceedings remain pending; or(ii) because of those proceedings no criminal proceedings may again be lawfully brought against the person under section 66E or 66F in respect of the same conduct. 66I. Use of incriminating evidence in proceedings (1) If an investigator requires a person to give an answer or response to any question, or to give an explanation or further particulars, under section 66D, the investigator must ensure that the person has first been informed or reminded of the limitations imposed by subsection (2) on the admissibility in evidence of—(a) the requirement; and(b) the question and the answer or response, or the explanation or particulars.(2) If—(a) an investigator requires a person to give an answer or response to any question, or to give an explanation or further particulars, under section 66D; and(b) the answer, response, explanation or particulars might tend to incriminate the person, and the person so claims before giving the answer, response, explanation or particulars,the requirement, as well as the question and the answer or response, or the explanation or particulars, are not admissible in evidence against the person in criminal proceedings in a court of law other than those specified in subsection (3).(3) For subsection (2), the criminal proceedings are those in which the person is charged, in respect of the answer, response, explanation or particulars, with an offence under—(a) section 66E or 66F; or(b) Part V of the Crimes Ordinance (Cap. 200). Part IX Miscellaneous 67. Special provisions for schemes covering groups of companies (1) Subject to this section, an occupational retirement scheme must only cover 1 relevant employer. (Replaced 53 of 1995 s. 21)(1A) Relevant employers from within a grouping of companies may operate, contribute to or participate in, group occupational retirement scheme that covers 2 or more companies from within the grouping of companies. (Added 53 of 1995 s. 21)(1B) The relevant employers from within the grouping of companies must jointly or severally by power of attorney nominate one of themselves, or the holding company of a group of companies within the grouping of companies, as the representative employer for the purposes of the scheme. (Added 53 of 1995 s. 21)(1C) For the purpose of this section—(a) grouping of companies (公司集團) means companies that are associated companies or are within a group of companies and includes associated companies of a member of a group of companies;(b) group of companies (同一集團的公司) means a holding company and its subsidiaries;(c) companies are regarded as being associated companies if—(i) one of the companies holds, or is entitled to control the exercise of, 20% or more of the voting power in the other company’s general meetings;(ii) one of the companies is a subsidiary of an associated company; or(iii) they are partners under a written partnership agreement. (Added 53 of 1995 s. 21)(1D) If a relevant employer in a scheme that covers 2 or more employers ceases to comply with a relationship requirement under this section, the relevant employer shall—(a) notify the representative employer and the Registrar within 1 month of ceasing to comply; and(b) withdraw from the scheme within 3 months or such further time as the Registrar allows in the circumstances, unless within that time the relevant employer resumes compliance. (Added 53 of 1995 s. 21)(1E) The relevant employer is required to withdraw from a scheme by arranging for either—(a) the transfer of the rights of the members who are employed by the withdrawing relevant employer and corresponding assets of the scheme to another registered or exempted scheme or, where the affected members are employed outside Hong Kong, to a scheme outside Hong Kong; or(b) the orderly winding up of that part of the scheme that applies to the withdrawing relevant employer. (Added 53 of 1995 s. 21)(1F) A relevant employer who, without reasonable excuse, fails to notify the representative employer or the Registrar under subsection (1D)(a) commits an offence and is liable on summary conviction to a fine at level 3. (Added 53 of 1995 s. 21)(1G) A relevant employer commits an offence and is liable on summary conviction to a fine at level 3 if he, without reasonable excuse, fails to withdraw from a scheme as required under subsection (1D)(b) or to make the arrangement as required under subsection (1E)(a) or (b). (Added 53 of 1995 s. 21)(2) Where an occupational retirement scheme covers 2 or more relevant employers and all of them (except the nominated representative employer) nominate the same representative employer under subsection (1), the following provisions shall apply—(a) an application made as regards the scheme under section 7, 15, 23(3) or 48(1) by the representative employer shall be deemed to be an application made by each of the employers covered by the scheme;(b) payment of a fee payable as regards the scheme under section 9(1) or 28(1) by the representative employer shall discharge the duty of all other employers covered by the scheme to pay such fee;(c) an appeal made as regards the scheme under section 8, 13, 19 or 46 by the representative employer shall be deemed to be an appeal made by each of the employers covered by the scheme;(d) a duty under this Ordinance to give or supply notices, statements, particulars or information to a member of the scheme shall be discharged by the employer who employs the members;(e) a notice given as regards the scheme by the Registrar under section 7(5B), (5C) or (5D)(a), 11(2)(b), 12(2)(b), 14(2), 14(3)(b), 18(4A), (4B) or (4C)(a), 32(4)(a), 36(4), 39(1), 43(1)(b), 45(2)(b), 47(2) or 47(3)(b) to the representative employer shall, unless otherwise stated in the notice, be deemed to have been given to every employer covered by the scheme; (Amended 53 of 1995 s. 21)(f) the duty of a consultative committee formed by the members of the scheme to give notice or advice to the relevant employer of the scheme under section 34 shall be discharged by giving the notice or advice to the representative employer;(g) the duty under section 10(1)(d), (f) and (g) shall be discharged as regards the scheme by the representative employer; (Amended 53 of 1995 s. 21)(ga) the representative employer of an exempted scheme shall, for each period of 12 months beginning on the date of the exemption certificate or on an anniversary of the date, give the Registrar—(i) an annual return for the period relating to the scheme in the form and containing the information that may be specified by the Registrar;(ii) a written statement as to whether at all times during the period—(A) the scheme by its terms limits membership of the scheme to eligible persons; and(B) all members of the scheme are eligible persons;(iii) for a scheme exempted under section 7(4)(a)—documentary evidence to satisfy the Registrar of the validity of the relevant registration or approval during the period; and(iv) for a scheme exempted under section 7(4)(b) or (c)—a written statement of the total number of members of the scheme and the number of the members who were Hong Kong permanent identity card holders on the date of the statement,within 1 month after the expiry of the period or a longer period the Registrar may allow;(gab) the representative employer of a registered scheme must, within 1 month after the end of a financial year of the scheme, or a longer period the Registrar may allow, give the Registrar a written statement as to whether at all times during the financial year—(i) the scheme by its terms limits membership of the scheme to eligible persons; and(ii) all members of the scheme are eligible persons; (Added 9 of 2020 s. 44)(gb) the representative employer shall notify the Registrar of a change of representative employer within 1 month of the change; (Added 53 of 1995 s. 21)(gc) the representative employer shall notify the Registrar of a change to his name or address—(i) for a registered scheme for which he is the representative employer within 1 month of the change; and(ii) for an exempted scheme for which he is the representative employer as soon as is reasonably practicable after the change; (Added 53 of 1995 s. 21)(gd) the representative employer shall notify the Registrar of the matters prescribed in rules and required under section 21A(2) within 1 month after the change to the name of the scheme; (Added 53 of 1995 s. 21)(ge) the representative employer of a registered group scheme shall notify the Registrar of any change of the administrator of the scheme as required under section 22(1)(b); (Added 53 of 1995 s. 21)(gf) the Registrar may give notice under section 26(1) to the representative employer of a registered group scheme and the representative employer is required to comply with notice given under that section in addition to a requirement placed on a relevant employer under that section and the representative employer may apply for an extension of time under section 26(2); (Added 53 of 1995 s. 21)(h) a notice required to be given as regards the scheme to the Registrar under section 29 shall be given by the representative employer;(i) an exemption certificate or registration certificate issued under section 7(1) or 18(5) as regards the scheme shall be issued to the representative employer.(3) A representative employer who without reasonable excuse fails to notify the Registrar under section 10(1)(d) as required under subsection (2)(g) commits an offence and is liable on summary conviction to a fine at level 1. (Added 53 of 1995 s. 21)(4) A representative employer who without reasonable excuse fails to notify the Registrar under section 10(1)(f) as required under subsection (2)(g) commits an offence and is liable on summary conviction to a fine at level 3. (Added 53 of 1995 s. 21)(5) A representative employer who without reasonable excuse fails to discharge his duty under subsection (2)(g) in relation to a notice under section 10(1)(g) commits an offence and is liable on summary conviction to a fine at level 6. (Added 53 of 1995 s. 21)(6) A representative employer who without reasonable excuse fails to notify the Registrar on the change of representative employer as required under this section commits an offence and is liable on summary conviction to a fine at level 3. (Added 53 of 1995 s. 21)(6A) A representative employer who without reasonable excuse fails to give the Registrar an annual return, a written statement or documentary evidence as required under subsection (2)(ga) commits an offence and is liable on summary conviction to a fine at level 3. (Added 9 of 2020 s. 44)(7) A representative employer who without reasonable excuse fails to give a notice under subsection (2)(gc) commits an offence and is liable on summary conviction to a fine at level 3. (Added 53 of 1995 s. 21)(8) A representative employer who without reasonable excuse fails to give notice under subsection (2)(gd) commits an offence and is liable on summary conviction to a fine at level 1. (Added 53 of 1995 s. 21)(9) A representative employer who without reasonable excuse fails to give notice under subsection (2)(ge) commits an offence and is liable on summary conviction to a fine at level 3. (Added 53 of 1995 s. 21)(10) A representative employer who without reasonable excuse fails to give a notice under subsection (2)(h) as required under section 29 commits an offence and is liable on summary conviction to a fine at level 3. (Added 53 of 1995 s. 21)(Amended 9 of 2020 s. 44) 68. Qualification of auditor (1) Any thing required to be done under this Ordinance or any statement, report or other document required to be made or prepared under this Ordinance by an auditor in respect of a Hong Kong domiciled scheme or proposed Hong Kong domiciled scheme shall be done, made or prepared by a Hong Kong accountant.(2) Any thing required to be done under this Ordinance or any statement, report or other document required to be made or prepared under this Ordinance by an auditor in respect of an offshore scheme or proposed offshore scheme shall be done, made or prepared by—(a) a Hong Kong accountant; or(b) a person—(i) who may lawfully practise as a professional accountant in the country or jurisdiction which is the domicile of the scheme; and(ii) without prejudice to subparagraph (i), who holds such qualification as the Registrar may accept as being of a standard comparable to that of a Hong Kong accountant.(3) Any thing required to be done under this Ordinance or any statement, report or other document required to be made or prepared under this Ordinance by an auditor in respect of an occupational retirement scheme shall be done, made or prepared by an auditor who is not—(a) a partner, director or employee of the administrator of the scheme;(b) the relevant employer of the scheme;(c) an associate or employee of the employer; or(d) a person having a contract of service with an employee referred to in paragraph (a) or (c).(4) Where a statement, report or other document which purports to be made or prepared by an auditor in respect of an occupational retirement scheme is received by the Registrar, the Registrar may require—(a) the person by whom the statement, report or other document purports to have been made or prepared;(b) the administrator of the scheme; or(c) the relevant employer of the scheme,to supply to the Registrar a statement in writing, in a form specified by the Registrar, that the person is not a person referred to in subsection (3)(a), (b), (c) or (d). 69. Actuaries and solicitors to be independent of relevant employers (1) Any thing required to be done under this Ordinance or any statement, certificate, report or other document required to be made or prepared under this Ordinance by an actuary or a solicitor in respect of an occupational retirement scheme shall be done, made or prepared by an actuary or solicitor who is not—(a) the relevant employer of the scheme;(b) an associate or employee of the employer; or(c) a person having a contract of service with an employee referred to in paragraph (b).(2) Where a statement, certificate, report or other document which purports to be made or prepared by an actuary or a solicitor in respect of an occupational retirement scheme is received by the Registrar, the Registrar may require—(a) the person by whom the statement, certificate, report or other document purports to have been made or prepared;(b) the administrator of the scheme; or(c) the relevant employer of the scheme,to supply to the Registrar a statement in writing, in a form specified by the Registrar, that the person is not a person referred to in subsection (1)(a), (b) or (c). 70. Professional qualifications (1) Where a certificate, statement or report either accompanies an application for registration or is sent or supplied to the Registrar pursuant to a requirement under this Ordinance, the Registrar may by notice in writing require—(a) in the case of an application, the applicant; or(b) in any other case, the designated person of the relevant scheme,to supply to the Registrar, within such period as is specified in the notice (being a period of not less than 1 month beginning on the date of the notice), particulars of the professional or other qualifications and experience of the person by whom the certificate, statement or report was given, issued or made.(2) Where the Registrar makes a requirement under subsection (1) and—(a) the requirement is not complied with; or(b) having had regard to the purposes of this Ordinance and the result of relevant inquiries (if any) made by him under subsection (3), the Registrar reasonably considers the person by whom such certificate, statement or report was given, issued or made not to be suitably qualified to give, issue or make it,he shall refuse to accept the relevant certificate, statement or report.(3) Where the Registrar issues a notice under subsection (1), he may make such inquiries as he considers appropriate regarding the qualifications or experience of the person by whom the relevant certificate, statement or report was given, issued or made. 70A. Certain amounts relating to severance payments and long service payments to be paid from vested benefits (1AA) In this section— benefits reduction provision (扣減利益條文) means the following provision of the Employment Ordinance (Cap. 57)— (a) in relation to the reduction of a part of vested benefits by an amount of a severance payment—section 31IA; or (b) in relation to the reduction of a part of vested benefits by an amount of a long service payment—section 31YAA or 31YB; Cap. 57 payment reduction provision (扣減《第57章》款項條文) means the following provision of the Employment Ordinance (Cap. 57)— (a) in relation to the reduction of an amount of a severance payment by a part of vested benefits—section 31I; or (b) in relation to the reduction of an amount of a long service payment by a part of vested benefits—section 31Y or 31YA; employer-funded ORS benefit (僱主供款職業退休計劃利益) has the meaning given by section 2(1) of the Employment Ordinance (Cap. 57);employer-funded (specified) ORS benefit (僱主供款(指明)職業退休計劃利益) has the meaning given by section 2(1) of the Employment Ordinance (Cap. 57);post-transition portion (轉制後部分) has the meaning given by section 1(1) of Schedule 11 to the Employment Ordinance (Cap. 57);pre-transition portion (轉制前部分) has the meaning given by section 1(1) of Schedule 11 to the Employment Ordinance (Cap. 57);specified employee (指明僱員) has the meaning given by section 2(1) of the Employment Ordinance (Cap. 57). (Added 4 of 2022 s. 32)(1) If—(a) an employer has paid to or in respect of an employee a severance payment or long service payment in accordance with the Employment Ordinance (Cap. 57), or a part of such a payment; and (b) vested benefits are held in an occupational retirement scheme in respect of the employee; and(c) a part of those benefits is available to be reduced by an amount of the severance payment or long service payment, or the part of such a payment, that has been so paid (removable benefits) under the benefits reduction provision, (Replaced 4 of 2022 s. 32)the employer may make an application in writing to the administrator of the scheme for payment of an amount under subsection (2).(2) As soon as practicable after receiving an application under subsection (1), the administrator of the occupational retirement scheme concerned must, on being satisfied as to the employer’s entitlement to a payment under this subsection, pay to the employer from the vested benefits concerned an amount equal to the amount of the removable benefits. (Replaced 4 of 2022 s. 32)(2A) However, if the employer has only paid a part of the severance payment or long service payment (paid Cap. 57 payment), the payment under subsection (2) must be of an amount equal to—(a) if the employee is not a specified employee—the lesser of the following—(i) the amount of the removable benefits; (ii) so much of the vested benefits mentioned in subsection (1)(b) that are employer-funded (specified) ORS benefits and that would remain if they were to be reduced by an amount of the unpaid part of the severance payment or long service payment (unpaid Cap. 57 payment) under the benefits reduction provision; or(b) if the employee is a specified employee—the sum of the amounts under subparagraphs (i) and (ii)—(i) the lesser of the following—(A) so much of the removable benefits that are such benefits because of a reduction by an amount of the pre-transition portion of the paid Cap. 57 payment;(B) so much of the vested benefits mentioned in subsection (1)(b) that are employer-funded ORS benefits and that would remain if they were to be reduced by an amount of the pre-transition portion of the unpaid Cap. 57 payment under the benefits reduction provision;(ii) the lesser of the following—(A) so much of the removable benefits that are such benefits because of a reduction by an amount of the post-transition portion of the paid Cap. 57 payment;(B) so much of the vested benefits mentioned in subsection (1)(b) that are employer-funded (specified) ORS benefits and that would remain if they were to be reduced by an amount of the post-transition portion of the unpaid Cap. 57 payment under the benefits reduction provision. (Added 4 of 2022 s. 32)(2B) For the purposes of subsection (2A)(a)(ii) and (b)(i)(B) and (ii)(B), a reduction under the benefits reduction provision is a reduction under the provision that applies on the basis that the unpaid Cap. 57 payment had also been paid. (Added 4 of 2022 s. 32)(3) If—(a) an employer has not paid the whole of a severance payment or long service payment to or in respect of an employee as required by the Employment Ordinance (Cap. 57); and (b) vested benefits are held in an occupational retirement scheme in respect of the employee; and(c) a part of those benefits is available to reduce an amount of the severance payment or long service payment, or the part of such a payment, that has not been so paid (deductible benefits) under the Cap. 57 payment reduction provision, (Replaced 4 of 2022 s. 32)an application may be made in writing by or in respect of the employee to the administrator of the scheme for payment of an amount under subsection (4).(4) As soon as practicable after receiving an application under subsection (3), the administrator of the occupational retirement scheme concerned must, on being satisfied as to the recipient’s entitlement to a payment under this subsection, pay to or in respect of the employee from the vested benefits concerned an amount equal to the amount of the deductible benefits. (Amended 4 of 2022 s. 32)(5) (Repealed 4 of 2022 s. 32)(6) If—(a) a change has occurred (whether by virtue of a sale or other disposition or by operation of law) in the ownership of a business in which a person is employed, or in a part of such a business, and either—(i) the person’s contract of employment (with the substitution of the new owner of the business for the previous owner) is renewed by that new owner; or(ii) the person is re-engaged by that new owner under a new contract of employment; or(b) a person is taken into the employment of an associated company of another company by which the person was employed immediately before the person was taken into that employment,this section applies to a severance payment or long service payment, or a contribution, paid by the previous owner as if it had been paid by the new owner or the associated company. This subsection has effect whether or not the previous owner may have terminated the employee’s contract in accordance with section 6 or 7 of the Employment Ordinance (Cap. 57).(7) For the purposes of subsection (6), 2 companies are taken to be associated companies if one is the subsidiary of the other, or both are subsidiaries of a further company.(8) This section also applies, with any necessary modifications, to an occupational retirement scheme within the meaning of the Employment Ordinance (Cap. 57) that is not an occupational retirement scheme within the meaning of this Ordinance.(9) If an employee falls within section 31ZEA(3) of the Employment Ordinance (Cap. 57), then this section as in force immediately before the date on which the Employment and Retirement Schemes Legislation (Offsetting Arrangement) (Amendment) Ordinance 2022 (4 of 2022) (Amendment Ordinance) comes into operation* continues to have effect in relation to the employee as if the amendments to this section made by the Amendment Ordinance had not been made. (Added 4 of 2022 s. 32)(Added 4 of 1998 s. 4) Editorial Note: * Operation date: 1 May 2025. 70B. Transfer of benefits (1) The relevant employer of a registered scheme or an exempted scheme (receiving scheme) must not accept a transfer of benefits from another scheme (transferring scheme) except in the circumstances set out in subsection (2).(2) The circumstances are that—(a) the transferring scheme is a registered scheme or an exempted scheme, and—(i) the transfer is made in accordance with an agreement between the relevant employer of the receiving scheme and the relevant employer of the transferring scheme;(ii) the benefits are payable to a member of the receiving scheme who was a member of the transferring scheme; and(iii) the benefits are held in an account in the name of the member under the transferring scheme before the transfer, and in an account in the name of the member under the receiving scheme after the transfer; or(b) the transferring scheme is not a registered scheme or an exempted scheme but is a provident, pension, retirement or superannuation scheme (however described) established outside Hong Kong, and—(i) the transfer is made directly from the transferring scheme to the receiving scheme;(ii) the benefits are attributable solely to payments to the transferring scheme due to the previous employment of a member by the employer of that scheme, and held in an account in the sole name of the member under that scheme before the transfer;(iii) the member referred to in subparagraph (ii) is a member of the receiving scheme; and(iv) the benefits are held in an account in the name of the member under the receiving scheme after the transfer.(Added 9 of 2020 s. 45) 71. Chief Executive may amend Schedules The Chief Executive may amend any Schedule by order published in the Gazette.(Amended 31 of 1999 s. 3) 72.

Legislative Council may substitute percentage and number The Legislative Council may by resolution substitute the percentage or number of persons in section 7(4)(b), 7(4)(c), 11(1)(b), 12(1)(b), 27(2)(a) or 32(1)(a)(iii). 73. Rules (1) The Registrar may make rules—(a) for the purposes of the definition of associate; (Amended E.R. 5 of 2021)(b) for the purposes of the definition of insurance arrangement; (Amended E.R. 5 of 2021)(c) prescribing fees for the purposes of the definition of prescribed fee; (Amended E.R. 5 of 2021)(d) in relation to registration of occupational retirement schemes under this Ordinance;(da) for details to be supplied on notice of changes to registered schemes, exempted schemes and pooling agreements; (Added 53 of 1995 s. 22)(e) for the purposes of section 24(3)(a)(iii);(ea) for the purposes of section 24A and, in particular, for the purposes of determining when a contribution becomes due; (Added 4 of 1998 s. 4)(f) for the purposes of the requirement of section 25(2);(g) providing for passing of resolutions referred to in section 20(5)(c) or 35(3)(b);(h) providing for the preparation of actuarial certificates to be supplied under this Ordinance;(i) for the purposes of section 31;(j) providing for the formation, constitution, proceedings and dissolution of consultative committees;(k) providing for other matters incidental or related to consultative committees;(l) requiring any designated person to give to him notice of any proposed amendment to the relevant registered scheme, being a proposed amendment which is of a class or description so specified;(m) for the purposes of section 37;(n) in relation to the calculation of unpaid contribution for the purpose of section 38(1)(cf) of the Bankruptcy Ordinance (Cap. 6) and section 265(1)(cf) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32); (Amended 28 of 2012 ss. 912 & 920)(na) without prejudice to section 18(1)(c), specifying the method or methods to be used to pay benefits payable to members of registered schemes; (Added 59 of 1993 s. 23)(nb) where a registered scheme is the subject of or regulated by an insurance arrangement, restricting—(i) the investments which the administrator of the scheme may make in relation to—(A) the relevant employer of the scheme or an associate of such employer;(B) any non-listed company within the meaning of section 27(1);(ii) the loans which that administrator may make to that employer or associate (excluding any loan which is a deposit made with an authorized institution within the meaning of the Banking Ordinance (Cap. 155)); (Added 59 of 1993 s. 23)(o) generally for the better carrying out of the provisions and objects of this Ordinance.(2) Rules made under subsection (1) may make different provisions as regards occupational retirement schemes of different classes or descriptions.(3) Rules made under subsection (1)(nb) shall be subject to the approval of the Legislative Council. (Added 59 of 1993 s. 23) 73A. Prescribed fee on notice A person who notifies the Registrar of a change of the particulars of a registered scheme or an exempted scheme shall pay the prescribed fee for giving the notice.(Added 53 of 1995 s. 23) 74. Jurisdiction of Court of First Instance (Amended 25 of 1998 s. 2)(1) The court shall, in relation to a scheme (including any trust by which the scheme is governed) which is, or has at any time been, a registered scheme and whose domicile is not Hong Kong, have jurisdiction to hear and determine (in accordance with the law of the scheme’s domicile)—(a) whether or not under the scheme a particular person is entitled (or prospectively entitled) to benefit at all or is entitled (or prospectively entitled) to a benefit or benefits of a particular kind;(b) the amount of any benefit to which any particular person is entitled, or prospectively entitled, under the scheme.(2) The jurisdiction conferred by subsection (1) shall be without prejudice to any other jurisdiction exercisable by any court, and accordingly nothing in this section shall be regarded as limiting or otherwise affecting any right or other cause of action, existing apart from this section, on the basis of which damages or any other relief or remedy may be recovered or obtained in legal proceedings.(3) Subsection (1) shall not be construed as affecting in any way any provision of a scheme referred to in that subsection which relates to arbitration.(4) None of the references to a person or persons in subsection (1) shall be construed as including a reference to a person, including the head of a consulate-general, consulate, vice-consulate or consular agency, entrusted in the capacity of a consular officer with the exercise of consular functions. 75. Immunity (1) A person to whom this section applies is not civilly liable for an act done or omitted to be done by the person in good faith in performing or purportedly performing a function under this Ordinance.(2) This section applies to—(a) the Registrar;(b) a director of the Registrar;(c) an employee of the Registrar;(d) an authorized person;(e) a person appointed under section 36(2);(f) an investigator; and(g) a public officer.(Replaced 9 of 2020 s. 46) 76. Legal professional privilege A barrister or solicitor admitted under the Legal Practitioners Ordinance (Cap. 159) shall not be required under this Ordinance to disclose any information (other than the name and address of a client) or produce any record or other document which he would be entitled to refuse to disclose or produce on grounds of legal professional privilege in the court. 77. Preservation of secrecy (1) Subject to sections 32, 78, 78A and 78B and subsection (2), any person who acquires any information by virtue of his performance or assistance in the performance of functions under this Ordinance shall preserve secrecy with regard to such information and without prejudice to the foregoing shall not— (Amended 1 of 2015 s. 56; 40 of 2021 s. 104)(a) disclose such information to any other person except where such disclosure is necessary to such performance or assistance; or(b) suffer or permit any other person to have access to such information except where such access is necessary for that other person to perform or assist in the performance of functions under this Ordinance.(2) Nothing in this section shall be construed as prohibiting disclosure of such information in pursuance of a court order, a rule of law or a requirement made under a rule of law.(3) Any person who contravenes subsection (1) commits an offence and shall be liable on summary conviction to a fine at level 4.(Amended E.R. 5 of 2021) 78. Disclosure by Registrar (1) Notwithstanding section 77, the Registrar may disclose information—(a) in the form of a summary compiled from information provided by persons under this Ordinance if the summary is so compiled as to prevent particulars relating to the business or identity of any such person being ascertained from it;(b) with a view to the institution of, or otherwise for the purposes of, any criminal proceedings or any investigation in Hong Kong;(c) in connection with any civil proceedings to which the Registrar is a party;(ca) for seeking advice from, or the giving of advice by, a barrister or solicitor or other professional adviser acting or proposing to act in a professional capacity in connection with a matter arising under this Ordinance; (Added 9 of 2020 s. 47)(cb) in a form the Registrar considers appropriate but only if the information has been made available to the public by virtue of being disclosed in any circumstances in which, or for any purpose for which, disclosure is not prohibited under section 77; (Added 9 of 2020 s. 47)(d) subject to subsections (1A) and (2), to the Chief Executive, the Financial Secretary, the Secretary for Justice or the Commissioner of Inland Revenue; (Amended L.N. 96 of 1993; 31 of 1999 s. 3; L.N. 106 of 2002; 9 of 2020 s. 47)(e) relating to an offshore scheme domiciled in a country, territory or place outside Hong Kong to a supervisory authority which in the Registrar’s opinion—(i) performs in that country, territory or place functions which are generally analogous to the functions conferred on the Registrar by this Ordinance; and(ii) is subject to adequate secrecy provisions in that country, territory or place,if the Registrar reasonably considers that such disclosure is in the interests of the members of the scheme as a whole; (Amended 31 of 1999 s. 3)(ea) to the Authority, within the meaning of section 2 of the Mandatory Provident Fund Schemes Ordinance (Cap. 485), if, in the opinion of the Registrar, the disclosure will enable or assist the Authority to perform a function conferred or imposed on the Authority by that Ordinance or any other law; (Added 4 of 1998 s. 4)(eb) to the Insurance Authority, the Monetary Authority, the Securities and Futures Commission, The Ombudsman or the Accounting and Financial Reporting Council continued under section 6 of the Accounting and Financial Reporting Council Ordinance (Cap. 588) if, in the opinion of the Registrar— (Amended L.N. 66 of 2022)(i) the disclosure is in the interests of the members of the scheme concerned;(ii) the disclosure is in the public interest; or(iii) the disclosure enables the performance of a function conferred by law; (Added 9 of 2020 s. 47)(f) to such bodies as then have been specified for the purpose of this paragraph by the Registrar in a notice published in the Gazette if, and only if, the Registrar—(i) is satisfied that the information will be used only for the purposes of disciplinary proceedings regarding a member of that body or for the purpose of considering the institution of such proceedings; and(ii) is of the opinion that such disclosure is desirable or expedient; (Amended 9 of 2020 s. 47)(g) with the consent of the person from whom the information was obtained or received and, if the information relates to another person, with the consent also of that other person; or (Added 9 of 2020 s. 47)(h) to the public on any details of, or reasons for—(i) the Registrar’s exercise of power under section 11, 12, 14, 42, 43, 45 or 47; or(ii) the Registrar’s application under section 44,and any material facts of the case. (Added 9 of 2020 s. 47)(1A) The Registrar may only disclose information under subsection (1)(d) if the Registrar is of the opinion that—(a) the disclosure is in the interests of the members of the scheme concerned;(b) the disclosure is in the public interest; or(c) the disclosure enables the performance of a function conferred by law. (Added 9 of 2020 s. 47)(2) The Registrar shall not disclose any information to the Commissioner of Inland Revenue under subsection (1)(d) unless the Registrar is satisfied that the information is required by the Commissioner for the purpose of assisting him to determine a question or matter which under the Inland Revenue Ordinance (Cap. 112) is for the Commissioner to determine.(3) Where information is disclosed to any person under subsection (1)(f) neither that person nor any person obtaining or receiving the information, whether directly or indirectly, from that person shall disclose the information to any other person without the written consent of the Registrar.(4) Any person who contravenes subsection (3) commits an offence and shall be liable on summary conviction to a fine at level 4.(Amended E.R. 5 of 2021) 78A. Disclosure by administrator or relevant employer (1) Despite section 77, an administrator or the relevant employer of an occupational retirement scheme may disclose information if—(a) the Registrar has given written consent; and(b) any of the following applies—(i) the person to whom the information relates has given written consent;(ii) the information is disclosed in a manner that prevents particulars relating to the identity of the person to whom the information relates from being ascertained from the information.(2) The Registrar may give consent only if—(a) the information is to be disclosed to a person located in a place outside Hong Kong;(b) the person exercises or performs in that place functions that correspond to those of the Commissioner of Inland Revenue; and(c) the Registrar is satisfied that the disclosure will enable or assist the person to exercise or perform the person’s official functions.(3) The Registrar may, in giving consent, impose conditions that it considers appropriate.(Added 1 of 2015 s. 57) 78B. Disclosure for purposes of section 50B or 50C of Inland Revenue Ordinance (1) Section 77 does not prevent a person from disclosing any information acquired as described under section 77(1) if the disclosure is for the purposes of section 50B or 50C of the Inland Revenue Ordinance (Cap. 112).(2) Any information disclosed under subsection (1) may be used or disclosed only for the purposes mentioned in that subsection.(3) A person who uses or discloses any information in contravention of subsection (2) commits an offence and is liable on conviction to a fine at level 4.(Added 40 of 2021 s. 105) 79. General offences of certain fraudulent acts (Replaced 9 of 2020 s. 48)(1A) This section does not apply in relation to an act that constitutes an offence under section 66E or 66F. (Added 9 of 2020 s. 48)(1) Any person who in purported compliance with the provisions of this Ordinance or a requirement made under this Ordinance makes any statement or certification of facts which is false in a material particular and which—(a) he knows to be false in such particular; or(b) he has no reasonable ground to believe to be true in such particular,commits an offence.(2) Any person who conceals, destroys, mutilates or falsifies any document or record affecting or relating to the assets or affairs of any occupational retirement scheme with the intention of—(a) concealing any offence under this Ordinance; or(b) obstructing any public officer, person appointed under section 36(2) or liquidator appointed under section 49(1) in the performance of his functions under this Ordinance,commits an offence.(3) A person who commits an offence under subsection (1) or (2) is liable—(a) on summary conviction—to a fine at level 6 and to imprisonment for 6 months; or(b) on conviction on indictment—to a fine of $1,000,000 and to imprisonment for 2 years. (Replaced 9 of 2020 s. 48)(4) Where—(a) a member of a professional body is alleged to have committed an offence under subsection (1) or (2); or(b) it appears to the Registrar that a member of a professional body has committed any act or omission which may constitute professional misconduct relating to an occupational retirement scheme,the Registrar may refer that matter to that professional body. 79A. Offences of obstructing performance of functions etc. (1) This section does not apply in relation to an act that constitutes an offence under section 66E or 66F.(2) A person must not—(a) without lawful authority, obstruct or hinder, or interfere with, the Registrar, an authorized person or an investigator in the performance of a function under this Ordinance; or(b) without reasonable excuse, fail to comply with a requirement made by the Registrar, the authorized person or the investigator in the course of performing such a function.(3) A person who contravenes subsection (2) commits an offence and is liable—(a) on a first conviction—to a fine at level 5 and to imprisonment for 6 months; or(b) on each subsequent conviction—to a fine of $200,000 and to imprisonment for 1 year.(Added 9 of 2020 s. 49) 79B. Prosecution deadline for summary offences (1) In this section—summary offence (簡易程序罪行) means an offence triable summarily only.(2) A prosecution for a summary offence under this Ordinance may only be started before the later of—(a) the end of 3 years after the date on which the offence is committed; and(b) the end of 6 months after the date on which the offence is discovered by, or comes to the notice of, the Registrar. Note— This replaces the time limit under section 26 of the Magistrates Ordinance (Cap. 227). (3) Subsection (2) does not apply in relation to an offence committed before the date* on which the Occupational Retirement Schemes (Amendment) Ordinance 2020 (9 of 2020) comes into operation.(Added 9 of 2020 s. 49) Editorial Note: * Commencement date: 26 June 2020. 79C. Proof of reasonable excuse or lawful authority In proceedings for an offence under this Ordinance, the defendant is to be taken to have established that the defendant had a reasonable excuse or lawful authority for the contravention in question if—(a) sufficient evidence is adduced to raise an issue that the defendant had such a reasonable excuse or lawful authority; and(b) the contrary is not proved by the prosecution beyond reasonable doubt.(Added 9 of 2020 s. 49) 80. Registrar may require English or Chinese version of certain documents (1) Where a document given to the Registrar or an appointed person within the meaning of section 36 in purported compliance with a requirement of or under this Ordinance is not written in either the English or Chinese language, the Registrar may by notice in writing require the person of whom the requirement was made to send to him within such period as is specified in the notice (being a period of not less than 1 month after the date of the notice) an English or Chinese version of the document as the person may elect.(2) Any person who fails to comply with a requirement under subsection (1) commits an offence and shall be liable on summary conviction to a fine at level 3.(Amended E.R. 5 of 2021) 80A. Registrar may appoint or authorize persons The Registrar may in writing appoint or authorize a person to perform functions, or specified functions, under or for the purposes of this Ordinance.(Added 9 of 2020 s. 50) 81. Notices (1) A notice required to be given under this Ordinance to a person shall be properly given if—(a) in case such person is an individual, it is delivered to him or sent by post to him at the address at which he ordinarily resides or carries on business or, if such an address is unknown, at his last known address; or(b) in case such person is a company, it is sent by post to the company’s registered office in Hong Kong; or(c) in case such person is a non-Hong Kong company as defined by section 2(1) of the Companies Ordinance (Cap. 622), it is sent by post to the principal place of business of the company in Hong Kong; or (Amended 30 of 2004 s. 3; 28 of 2012 ss. 912 & 920)(d) in case such person is a body corporate other than a company (whether incorporated or otherwise established in Hong Kong or elsewhere), or an unincorporated body of persons, it is sent by post to any address at which the body carries on business.(2) For the purposes of subsection (1), every body corporate other than a company and every unincorporated body of persons not being a partnership shall be deemed to carry on business at its principal office or place of business. 82. Liability of directors, etc. (1) Where an offence under this Ordinance is committed by a corporation and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary, or other similar officer of the corporation (and whether so called or not), or any person who was purporting to act in any such capacity, he as well as the corporation, shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.(2) Where an offence under this Ordinance committed by a partner is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any other partner of the relevant partnership, that other partner shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly. 83. (Omitted as spent—E.R. 2 of 2014) 84. (Omitted as spent—E.R. 2 of 2014) 85. Schemes falling short of membership requirements (1) This section applies in relation to a scheme that has been held out as being an occupational retirement scheme and would be an occupational retirement scheme except for either or both of the following matters—(a) a term of the scheme allows a person other than an eligible person to be a member of the scheme;(b) not all members of the scheme are eligible persons.(2) Any requirement or duty imposed under this Ordinance on a relevant employer applies to the person described as an employer in the terms of the scheme, or to the person held out as a relevant employer in relation to the scheme.(3) Any function that may be performed under this Ordinance in relation to an occupational retirement scheme may be performed in relation to the scheme.(Added 9 of 2020 s. 51) 86. Transitional provisions for Occupational Retirement Schemes (Amendment) Ordinance 2020 (1) In this section—Amendment Ordinance (《修訂條例》) means the Occupational Retirement Schemes (Amendment) Ordinance 2020 (9 of 2020);*commencement date (生效日期) means the date on which the Amendment Ordinance comes into operation;pre-amended Ordinance (《未經修訂條例》) means this Ordinance as in force immediately before the commencement date.(2) If, on the commencement date, an application for exemption or registration of an occupational retirement scheme that the Registrar has received before the commencement date is not finally disposed of as described in section 3(4), the pre-amended Ordinance continues to apply in relation to the application as if the Amendment Ordinance had not been enacted.(3) If—(a) an exemption certificate has been issued in respect of an occupational retirement scheme; and(b) the date of the certificate, or an anniversary of the date, falls before the commencement date,sections 10 and 67 of the pre-amended Ordinance continue to apply in relation to the period of 12 months beginning on the date of the certificate or on the anniversary as if the Amendment Ordinance had not been enacted, even if part of the period falls on or after the commencement date.(4) If a financial year of a registered scheme begins before the commencement date, sections 30 and 67 of the pre-amended Ordinance continue to apply in relation to the financial year as if the Amendment Ordinance had not been enacted, even if part of the financial year falls on or after the commencement date.(Added 9 of 2020 s. 51) Editorial Note: * Commencement date: 26 June 2020. Schedule 1 [ss. 2, 15, 37, 39 & 41]Documents Required for Registration Part 1 Basic Documents for a Scheme which is not a Participating Scheme of a Pooling Agreement 1. A statement by a solicitor stating—(a) either—(i) that the occupational retirement scheme to which the application relates is governed by a trust; or(ii) that such scheme is the subject of or regulated by an insurance arrangement; or(iii) that such scheme is neither governed by a trust nor the subject of or regulated by an insurance arrangement;(b) whether or not in his opinion the domicile of the scheme (including any trust established under or for the purposes of the scheme) is Hong Kong;(ba) that the scheme by its terms limits membership of the scheme to eligible persons; (Added 9 of 2020 s. 52)(c) that the terms of the scheme do not permit its assets to be used to indemnify any person who manages the scheme or any trustee thereof against any fraud, misfeasance or breach of trust;(d) that the terms of the scheme—(i) do not enable any person, without the consent of the scheme’s member concerned, to alter to the member’s detriment either his accrued rights under the scheme or his vested benefits, unless such alteration is consequential upon an amendment to the terms of the scheme consented to by not less than 90% of the members of the scheme; and(ii) provide that where an alteration described in sub-subparagraph (i) occurs, any vested benefit which the member concerned is entitled to receive as at the date of such alteration under the terms of the scheme as if the condition precedent (if any) of such entitlement had been satisfied shall, if he so elects, become payable to him; (Amended 59 of 1993 s. 24)(e) that the terms of the scheme have the effect provided for in section 18(1)(c) and (d); and (Amended 59 of 1993 s. 24)(f) where the scheme is the subject of or regulated by an insurance arrangement, that the terms of that arrangement provide that the sum, if any, payable by the administrator of the scheme in the event of the termination of that arrangement may be paid by the administrator only to—(i) another authorized insurer for the purposes of another insurance arrangement to which that scheme will be subject to or regulated by; or(ii) a person who will hold that sum on trust as an asset of that scheme in accordance with the provisions of section 25. (Added 59 of 1993 s. 24) 1A. For an occupational retirement scheme in respect of which there is an application for registration—a statement by an auditor stating, as at a date within 3 months before the date of application—(a) whether or not, in the auditor’s opinion, all members of the scheme are eligible persons in all material respects; and(b) if not, the extent to which the requirement is, in the auditor’s opinion, not complied with.(Added 9 of 2020 s. 52) 2. (Where the occupational retirement scheme to which the application relates is an existing scheme) a statement by an auditor stating, in relation to the latest financial year of the scheme (which financial year shall end on a date not more than 9 months before the date of the application for registration of the scheme)—(a) whether or not in his opinion proper accounts and records have been kept as regards the assets, liabilities and financial transactions of the scheme;(b) whether or not in his opinion as at the end of the financial year the assets of the scheme were subject to any assignment, charge, pledge or other encumbrance except—(i) the trust (if any) governing the scheme;(ii) any charge or pledge created for the purposes of securing loans necessary for meeting the liabilities of the scheme; and(iii) any option to acquire for valuable consideration any interest in the assets of the scheme granted in the normal course of business; and(c) (i) (where the scheme is a defined contribution scheme)—(A) whether or not in his opinion contributions have been made in accordance with the terms of the scheme; or(B) the shortfall (if any) in his opinion between the scheme’s assets and the scheme’s aggregate vested liability as at the last day of the financial year; or(ii) (where the scheme is a defined benefit scheme)—(A) whether an actuarial review has been conducted as regards the scheme as at a date within the last 3 years; and(B) (where such review has been conducted) whether or not in his opinion contributions have been made in accordance with the actuarial recommendations (if any) made by the actuary as regards the contributions to be made during the financial year, following the last actuarial review conducted as regards the scheme.(Amended 59 of 1993 s. 24) 2A. A statement by the applicant stating that all members of the scheme are eligible persons.(Added 9 of 2020 s. 52) 3. A statement by the applicant stating whether or not the requirements of section 25(2) and (5) (if the scheme is an existing scheme governed by a trust) have been complied with in relation to the scheme as if it was a registered scheme or (where the scheme is a proposed scheme which will be governed by a trust) will be complied with in relation to the scheme.(Amended 9 of 2020 s. 52) 4. (Where the occupational retirement scheme to which the application relates is an existing scheme) a set of audited accounts (if any) prepared in respect of the scheme in relation to the latest financial year of the scheme (which financial year shall end on a date not more than 9 months before the date of the application for registration of the scheme). Part 2 Basic Documents for a Participating Scheme of a Pooling Agreement 1. A statement by the administrator of the pooling agreement—(a) stating that the pooling agreement of which he is the administrator applies to the occupational retirement scheme to which the application relates; and(b) stating whether or not the requirements of section 25(2) and (5) (if the scheme is an existing scheme governed by a trust) have been complied with in relation to the scheme as if it was a registered scheme or (where the scheme is a proposed scheme which will be governed by a trust) will be complied with in relation to the scheme. (Amended 9 of 2020 s. 52) 2. A statement by a solicitor stating—(a) either—(i) that the occupational retirement scheme to which the application relates is governed by a trust; or(ii) that such scheme is the subject of or regulated by an insurance arrangement;(b) whether or not in his opinion the domicile of the scheme (including any trust established under or for the purposes of the scheme) is Hong Kong;(c) that paragraphs (a) to (d) of section 2(4) apply in respect of the pooling agreement which (where the scheme to which the application relates is an existing scheme) applies or (where such scheme is a proposed scheme) will apply to the scheme to which the application relates;(d) that the terms of the pooling agreement do not permit the assets of its participating schemes to be used to indemnify the administrator of the agreement against any fraud, misfeasance or breach of trust;(da) that the scheme by its terms limits membership of the scheme to eligible persons; (Added 9 of 2020 s. 52)(e) that the terms of the scheme—(i) do not enable any person, without the consent of the scheme’s member concerned, to alter to the member’s detriment either his accrued rights under the scheme or his vested benefits, unless such alteration is consequential upon an amendment to the terms of the scheme consented to by not less than 90% of the members of the scheme; and(ii) provide that where an alteration described in sub-subparagraph (i) occurs, any vested benefit which the member concerned is entitled to receive as at the date of such alteration under the terms of the scheme as if the condition precedent (if any) of such entitlement had been satisfied shall, if he so elects, become payable to him; (Amended 59 of 1993 s. 24)(f) that the terms of the scheme have the effect provided for in section 18(1)(c) and (d); and (Amended 59 of 1993 s. 24)(g) where the scheme is the subject of or regulated by an insurance arrangement, that the terms of that arrangement provide that the sum, if any, payable by the administrator of the scheme in the event of the termination of that arrangement may be paid by the administrator only to—(i) another authorized insurer for the purposes of another insurance arrangement to which that scheme will be subject to or regulated by; or(ii) a person who will hold that sum on trust as an asset of that scheme in accordance with the provisions of section 25. (Added 59 of 1993 s. 24) 2A. For an occupational retirement scheme in respect of which there is an application for registration—a statement by an auditor stating, as at a date within 3 months before the date of application—(a) whether or not, in the auditor’s opinion, all members of the scheme are eligible persons in all material respects; and(b) if not, the extent to which the requirement is, in the auditor’s opinion, not complied with.(Added 9 of 2020 s. 52) 3. (Where the occupational retirement scheme to which the application relates is an existing scheme) a statement by an auditor stating, in relation to the latest financial year of the scheme (which financial year shall end on a date not more than 9 months before the date of the application for registration of the scheme)— (Amended E.R. 5 of 2021)(a) whether or not in his opinion proper accounts and records have been kept as regards all assets, liabilities and financial transactions of the scheme;(b) whether or not in his opinion as at the end of the financial year the assets of the scheme were subject to any assignment, charge, pledge or other encumbrance except—(i) the trust (if any) governing the scheme;(ii) any charge or pledge created for the purposes of securing loans necessary for meeting the liabilities of the scheme; and(iii) any option to acquire for valuable consideration any interest in the assets of the scheme granted in the normal course of business;(c) that the value of the assets attributable to, and the liabilities of, the scheme are readily determinable from the accounts and records kept in relation to the pooling agreement; and(d) (i) (where the scheme is a defined contribution scheme)—(A) whether or not in his opinion contributions have been made in accordance with the terms of the scheme; or(B) the shortfall (if any) in his opinion between the scheme’s assets and the scheme’s aggregate vested liability as at the last day of the financial year; or(ii) (where the scheme is a defined benefit scheme)—(A) whether an actuarial review has been conducted as regards the scheme as at a date within the last 3 years; and(B) (where such review has been conducted) whether or not in his opinion contributions have been made in accordance with the actuarial recommendations (if any) made by the actuary as regards the contributions to be made during the financial year, following the last actuarial review conducted as regards the scheme.(Amended 59 of 1993 s. 24) 3A. A statement by the applicant stating that all members of the scheme are eligible persons.(Added 9 of 2020 s. 52) 4. (Where the occupational retirement scheme to which the application relates is an existing scheme) a set of audited accounts (if any) prepared in respect of the scheme in relation to the latest financial year of the scheme (which financial year shall end on a date not more than 9 months before the date of the application for registration of the scheme). Part 3 Additional Document 1. Where the scheme to which the application relates is a proposed defined benefit scheme A certificate issued by an actuary within the 2 months prior to the date of the receipt of the application which shall either be—(a) a full certificate certifying that—(i) he has given an initial actuarial valuation as regards the proposed scheme;(ii) he has made recommendations to the relevant employer of the scheme on the financial implications of the scheme (specifying in particular what would, in his opinion, be the level of contributions required to cover liabilities, including contingent and prospective liabilities, under the scheme when implemented);(iii) following the valuation he has received from that employer a copy of that employer’s written undertaking to the proposed administrator of the scheme to contribute to the scheme’s funds in accordance with the recommendations; and(iv) provided the scheme is funded in accordance with his recommendations, he would expect that—(A) the scheme’s assets would be sufficient to meet the scheme’s aggregate vested liability on the establishment of the scheme and remain sufficient to meet such liability throughout the period of 3 years from the date of the certificate; and(B) on the expiration of a period, where necessary, specified in the certificate, the scheme’s assets would be sufficient to meet the scheme’s aggregate past service liability; or(b) (in the case of a proposed scheme the proposed date of establishment of which is earlier than the 5th anniversary of the commencement* of section 1) a qualified certificate certifying that—(i) he has given an initial actuarial valuation as regards the proposed scheme;(ii) he has made recommendations to the relevant employer of the scheme on the financial implications of the scheme (specifying in particular what would, in his opinion, be the level of contributions required to cover liabilities, including contingent and prospective liabilities, under the scheme when implemented);(iii) following the valuation he has received from that employer a copy of that employer’s written undertaking to the proposed administrator of the scheme to contribute to the scheme’s funds in accordance with the recommendations; and(iv) he does not expect that on the establishment of the scheme the scheme’s assets would be sufficient to meet its aggregate vested liability but, providing that the scheme is funded in accordance with his recommendations— (Amended E.R. 5 of 2021)(A) he would expect that, on the date on which a period specified in the certificate would expire (which period shall be specified to expire on or before the 5th anniversary of the commencement* of section 1), the scheme’s assets would be sufficient to meet the scheme’s aggregate vested liability;(B) what he would expect to be the amount, if any, of the shortfall between the scheme’s assets and the scheme’s aggregate vested liability as at the date of the actuarial review covered by the first actuarial certificate to be supplied under section 31(1); and(C) on the expiration of a period, where necessary, specified in the certificate, the scheme’s assets would be sufficient to meet the scheme’s aggregate past service liability. 2. Where the scheme to which the application relates is a defined benefit scheme existing at the time of application (Amended 9 of 2020 s. 52) A certificate issued by an actuary relating to the last actuarial review conducted as regards the scheme as at a date which shall not be more than 9 months before the date of the application for registration of the scheme, which certificate shall either be—(a) a full certificate certifying that—(i) an actuarial review has been conducted as regards the scheme as of the date specified in the certificate;(ii) in the course of the review he has had regard to the financial condition of the scheme;(iii) the review included a valuation of the scheme’s liabilities (including contingent and prospective liabilities);(iv) as at the date of the review the scheme’s assets were sufficient to meet the scheme’s aggregate vested liability;(v) following the review he has made recommendations as regards funding of the scheme;(vi) following the review he has received a copy of a written undertaking by the relevant employer of the scheme to the administrator of the scheme to contribute to the scheme’s funds in accordance with those recommendations; and(vii) provided the scheme is funded in accordance with those recommendations, he would expect that—(A) the scheme’s assets would continue to be sufficient to meet the scheme’s aggregate vested liability throughout the period of 3 years from the date of the review; and(B) on the expiration of a period, where necessary, specified in the certificate, the scheme’s assets would be sufficient to meet the scheme’s aggregate past service liability; or(b) (for a scheme existing immediately before 15 October 1993) a qualified certificate certifying— (Amended 9 of 2020 s. 52)(i) that an actuarial review has been conducted as regards the scheme as of the date specified in the certificate;(ii) that in the course of the review he has had regard to the financial condition of the scheme;(iii) that the review included a valuation of the scheme’s liabilities (including contingent and prospective liabilities);(iv) that—(A) as at the date of the review the scheme’s assets were not sufficient to meet the scheme’s aggregate vested liability, and stating the amount of the shortfall as at such date; or(B) although as at the date of the review the scheme’s assets were sufficient to meet the scheme’s aggregate vested liability, he would not expect that the scheme’s assets would continue to be sufficient to meet the scheme’s aggregate vested liability throughout the period of 3 years from the date of the review;(v) that following the review he has made recommendations as regards funding of the scheme;(vi) that following the review he has received a copy of a written undertaking by the relevant employer of the scheme to the administrator of the scheme to contribute to the scheme’s funds in accordance with those recommendations; and(vii) provided the scheme is funded in accordance with those recommendations— (Amended E.R. 5 of 2021)(A) what he would expect to be the amount of the shortfall between the scheme’s assets and the scheme’s aggregate vested liability as at the expiry of 12 months from the date of the review;(B) that he would expect that, on the date on which a period specified in the certificate would expire (which period shall be specified to expire on a day which is earlier than the 5th anniversary of the commencement* of section 1), the scheme’s assets would be sufficient to meet the scheme’s aggregate vested liability; and(C) that on the expiration of a period, where necessary, specified in the certificate, the scheme’s assets would be sufficient to meet the scheme’s aggregate past service liability. 3. Where the scheme to which the application relates is stated to be an offshore scheme (a) A submission to the jurisdiction of the Court of First Instance in writing to the extent requisite to enable the Court of First Instance to exercise in relation to the scheme the jurisdiction conferred by section 74. The submission is to be made by or on behalf of the trustee or (in case there is no trustee) such other person and in such form as the Registrar may direct.(b) A statement by a solicitor stating that the terms of the scheme have the effect provided for in section 18(1)(d).(Amended 25 of 1998 s. 2) 4. Where the scheme to which the application relates is stated to be an offshore scheme governed by a trust A statement by a person qualified to practise as a professional legal practitioner in the country, territory or place stated to be the domicile of the scheme whether or not the trust instrument in his opinion requires (whether expressly or in effect) that the relevant employer of the scheme or his associate cannot act as the sole trustee of the trust.(Amended 31 of 1999 s. 3) Editorial Note: * Commencement date: 15 October 1993. Schedule 2 [ss. 2 & 31]Actuarial Certificates Part 1 Full Certificate A full certificate issued by the actuary shall certify that—(1) An actuarial review has been conducted as regards the scheme as of the date specified in the certificate.(2) In the course of the review he has had regard to the financial condition of the scheme.(3) The review included a valuation of the scheme’s liabilities (including contingent and prospective liabilities).(4) As at the date of the review the scheme’s assets were sufficient to meet the scheme’s aggregate vested liability.(5) Following the review he has made recommendations as regards funding of the scheme.(6) Following the review he has received a copy of a written undertaking by the relevant employer of the scheme to the administrator of the scheme to contribute to the scheme’s funds in accordance with those recommendations.(7) Provided the scheme is funded in accordance with those recommendations, he would expect that—(a) the scheme’s assets would continue to be sufficient to meet the scheme’s aggregate vested liability throughout the period of 3 years from the date of the review; and(b) on the expiration of a period, where necessary, specified in the certificate, the scheme’s assets would be sufficient to meet the scheme’s aggregate past service liability. Part 2 Qualified Certificate A qualified certificate issued by the actuary shall certify—(1) That an actuarial review has been conducted as regards the scheme as of the date specified in the certificate.(2) That in the course of the review he has had regard to the financial condition of the scheme.(3) That the review included a valuation of the scheme’s liabilities (including contingent and prospective liabilities).(4) That—(a) as at the date of the review the scheme’s assets were not sufficient to meet the scheme’s aggregate vested liability and stating the amount of the shortfall as at such date (the current shortfall); or (Amended E.R. 5 of 2021)(b) although as at the date of the review the scheme’s assets were sufficient to meet the scheme’s aggregate vested liability, he would not expect that the scheme’s assets would continue to be sufficient to meet the scheme’s aggregate vested liability throughout the period of 3 years from the date of the review.(5) That following the review he has made recommendations as regards funding of the scheme.(6) That following the review he has received a copy of a written undertaking by the relevant employer of the scheme to the administrator of the scheme to contribute to the scheme’s funds in accordance with those recommendations.(7) Provided the scheme is funded in accordance with those recommendations—(a) what he would expect to be the amount of the shortfall between the scheme’s assets and the scheme’s aggregate vested liability as at the expiry of 12 months from the date of the review (the expected shortfall); (Amended E.R. 5 of 2021)(b) that he would expect that within a period being the later of the 5th anniversary of the commencement* of section 1 and 3 years from the date of the review, the scheme’s assets would be sufficient to meet its aggregate vested liability; and(c) that he would also expect that on the expiration of the period specified in subparagraph (b), or on the expiration of a period, where necessary, specified in the certificate, the scheme’s assets would be sufficient to meet the scheme’s aggregate past service liability.(8) (Where the immediately preceding certificate supplied in accordance with this Ordinance was a qualified certificate)—(a) that the amount of contributions recommended in the certificate to be made in the remainder of the period specified in that preceding certificate is not less than the amount of contributions recommended in that preceding certificate to be made in the same period; or(b) that the amount of contributions recommended in the certificate to be made in the remainder of the period specified in that preceding certificate is less than the amount of contributions recommended in that preceding certificate to be made in the same period, but he would expect that even with such lesser amount of contributions the scheme’s assets would be sufficient to meet the scheme’s aggregate vested liability as at the expiry of 12 months from the date of the review.(9) (Where the immediately preceding certificate supplied in accordance with this Ordinance was a qualified certificate and where owing to any reason, other than the failure of the relevant employer of the scheme to contribute to the scheme’s funds in accordance with the actuarial recommendations in that preceding certificate, the current shortfall as stated in the certificate exceeds the expected shortfall as stated in that preceding certificate)—(a) what in the actuary’s opinion were the major reasons giving rise to such excess;(b) that the amount of contributions recommended to be made in the certificate includes additional contributions which the actuary considers are required to cover such excess. Editorial Note: * Commencement date: 15 October 1993. Schedule 3 [s. 35]Information to be Contained in a Statement under Section 35 1. Descriptions of the pensions, allowances and other benefits payable under the relevant registered scheme and in case more than one class or description of pension, allowance or other benefit is payable, particulars of those classes or descriptions of pension, allowance or other benefit. 2. Particulars of the scheme’s provisions regarding eligibility for membership of the scheme. 3. Particulars of the circumstances (if any) in which under such scheme a member will lose or may be liable to lose his entitlement to benefit under the scheme wholly or partly. 4. Particulars of the circumstances (if any) in which a right which has accrued under such scheme may be affected to a member’s detriment. 5.

A copy of the scheme instrument as amended from time to time together with (in case the scheme is governed by a trust) a copy of the trust instrument or (in case the scheme is the subject of or regulated by an insurance arrangement) a copy of the policy. 6. A copy of the statement of accounts and report (if any) thereon most recently prepared and audited pursuant to section 20. 7. A copy of the most recent actuarial certificate (if any) relating to such scheme and sent to the Registrar in compliance with a requirement of or made under this Ordinance.