(1) This Ordinance may be cited as the Occupational Retirement Schemes Ordinance. (2)-(4) (Omitted as spent E.R. 2 of 2014) (Enacted 1992)

Transcription

1 Chapter: 426 OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE Gazette Number Version Date Long title E.R. 2 of /04/2014 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. (Enacted Amended 25 of 1998 s. 2) [The Ordinance other than section 3 } 15 October 1993 Section 3 } 16 October 1995 L.N. 407 of 1993] (Enacting provision omitted E.R. 2 of 2014) (Originally 88 of 1992) Part: I PRELIMINARIES AND RESTRICTION ON OPERATION OF OCCUPATIONAL RETIREMENT SCHEMES 30/06/1997 Section: 1 Short title E.R. 2 of /04/2014 (1) This Ordinance may be cited as the Occupational Retirement Schemes Ordinance. (2)-(4) (Omitted as spent E.R. 2 of 2014) Section: 2 Interpretation E.R. 2 of /04/2014 (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 Cap OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE 1

2 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) (ii) any director of that body corporate; any body corporate which is- (A) a subsidiary; (B) the holding company; or (C) another subsidiary of the holding company, of the employer; (iii) any director of any such subsidiary or holding company; and (iv) the spouse or a parent, child, grandparent, grandchild, sister or brother of a director referred to in subparagraphs (i) and (iii); or (e) such other persons as may be specified by the Registrar by rules made under section 73(1); "auditor" ( 核數師 ) means- (a) a Hong Kong accountant; or (b) any person who holds such qualification as the Registrar may accept as being of a standard comparable to that of a Hong Kong accountant; "authorized insurer" ( 獲授權保險人 ) means a person who is an insurer within the meaning of the Insurance Companies Ordinance (Cap 41) and who is authorized under section 8 of that Ordinance, or is deemed under section 61(1) or (2) of that Ordinance to be so authorized, to carry on insurance business; "company" ( 公司 ) means a company within the meaning of the Companies Ordinance (Cap 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; "the court" ( 法院 ) means the Court of First Instance within the meaning of the High Court Ordinance (Cap 4); (Amended 25 of 1998 s. 2) "declared return" ( 已公布收益 ) means, in relation to contributions to the funds of a defined contribution scheme, the interest or return on such contributions which stands credited from time to time to the individual account of a member of the scheme in calculating the amount to which he is entitled under the terms of the scheme and if the facts in any particular case so dictate and the rules of the scheme so permit "declared return" includes negative return; "defined benefit scheme" ( 界定利益計劃 ) means an occupational retirement scheme which is not a defined contribution scheme; "defined contribution scheme" ( 界定供款計劃 ) means an occupational retirement scheme which provides that the amount of a benefit under the scheme is to be an amount determined solely by reference to- (a) the contributions to the scheme's funds by or in respect of the member concerned and any declared return in respect of such contributions (where such return may be subject to a minimum guaranteed rate but is otherwise unascertainable before it is declared); and (b) where appropriate, the qualifying service and age of the employee; "designated person" ( 指定人士 ) in relation to an occupational retirement scheme means a person who has given an undertaking referred to in section 15(f), 38 or 39(3) as regards the scheme and has not been released under section 40; "director" ( 董事 ) includes- (a) any person who occupies the position of a director, by whatever name called; Cap OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE 2

3 (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) "exempted scheme" ( 獲豁免計劃 ) means an occupational retirement scheme for which the Registrar has issued an exemption certificate under section 7 and any withdrawal under section 12 has not come into effect; (Added 53 of 1995 s. 2) "exemption certificate" ( 豁免證明書 ) means a certificate issued under section 7(1); "existing" ( 現有 ) means existing immediately before the commencement of section 1; "full certificate" ( 足額證明書 ) means an actuarial certificate certifying in the manner described in paragraph 1(a) or 2(a) of Part 3 of Schedule 1 or Part 1 of Schedule 2; "function" ( 職能 ) includes power and duty, and performance of a function includes exercise of a power and discharge of a duty; "group scheme" ( 集團計劃 ) means an occupational retirement scheme formed by a grouping of companies in accordance with section 67; (Added 53 of 1995 s. 2) holding company ( 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 registered under the Professional Accountants Ordinance (Cap 50) who holds a valid practising certificate within the meaning of that Ordinance; (Amended 23 of 2004 s. 56) "Hong Kong domiciled scheme" ( 以香港為本籍的計劃 ) means an occupational retirement scheme the domicile of which is Hong Kong; "Hong Kong permanent identity card holder" ( 香港永久性居民身分證持有人 ) means a person holding a permanent identity card within the meaning of the Registration of Persons Ordinance (Cap 177); "insurance arrangement" ( 保險安排 ) means an agreement or arrangement- (a) made in respect of an occupational retirement scheme with an authorized insurer under which the insurer is responsible for managing the scheme; and (Amended 59 of 1993 s. 20) (b) which is of a class or description specified in rules made by the Registrar; "liquidator" ( 清盤人 ) means a liquidator appointed under section 49; "member" ( 成員 ) includes, in relation to an occupational retirement scheme, an individual who is entitled or prospectively entitled to benefits under the scheme by virtue of- (a) his employment by the relevant employer (whether past or present) of the scheme; or (b) an agreement made between the relevant employer of the first-mentioned scheme and the relevant employer of another occupational retirement scheme of which such individual was formerly a member, Cap OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE 3

4 whether or not such individual is a party to the agreement, and where appropriate, "member" also includes the estate of a deceased member; "occupational retirement scheme" ( 職業退休計劃 ) means subject to subsection (6) any scheme, not being a contract of insurance under which benefits are payable only upon the death or disability of the insured, which- (a) is comprised in one or more instruments or agreements; and (b) has or is capable of having effect in relation to one or more descriptions or categories of employment so as to provide benefits, in the form of pensions, allowances, gratuities or other payments, payable on termination of service, death or retirement, to or in respect of persons gainfully employed (whether in Hong Kong or elsewhere) under a contract of service in any employment, and includes, where the context admits, a proposed such scheme; "offshore scheme" ( 離岸計劃 ) means an occupational retirement scheme the domicile of which is a country, territory or place outside Hong Kong; (Amended 31 of 1999 s. 3) "participating scheme" ( 參與計劃 ) means, in relation to a pooling agreement, an occupational retirement scheme to which the agreement applies; "partner" ( 合夥人 ) means a member of a partnership formed under the law of Hong Kong or the law of any country, territory or place outside Hong Kong; (Amended 31 of 1999 s. 3) "past service liability" ( 過去服務負債 ) means, in relation to a particular day and a particular member of an occupational retirement scheme- (a) (in case the scheme is a defined contribution scheme) the aggregate of the contributions paid or payable under the scheme by the relevant employer and (where appropriate) by the member, in respect of that member during the period beginning when his membership commenced and ending on that particular day, and the amount of any declared return on such contributions including any guaranteed return paid or payable pursuant to the scheme; or (b) (in case the scheme is a defined benefit scheme) the value on that particular day, as determined by an actuary, of the benefit entitlement under the scheme of, or in respect of, the member which, having regard to his qualifying service, could reasonably be expected to be received prospectively or contingently or, where appropriate, both; the actuary having made a reasonable allowance for the effects of mortality, what he considers to be prospective future salary increases, withdrawal from service rates and such other factors (if any) as he considers relevant, and in this definition "contributions" ( 供款 ) and "benefit entitlement" ( 利益享有權 ) include, in relation to a member who was a member of another occupational retirement scheme before joining the first-mentioned scheme, such contributions or benefit entitlement which stood to his credit under the second-mentioned scheme as were transferred in accordance with the terms of the first-mentioned scheme and stood thereunder to his credit upon his joining the first-mentioned scheme and where such transfer occurs, "membership" ( 成員 ) in relation to that member includes such period of membership in the second-mentioned scheme as is counted towards membership of the first-mentioned scheme; "prescribed fee" ( 訂明費用 ) means a fee prescribed in rules made by the Registrar; "qualified certificate" ( 不足額證明書 ) means an actuarial certificate certifying in the manner described in paragraph 1(b) or 2(b) of Part 3 of Schedule 1 or Part 2 of Schedule 2; "qualifying service" ( 可享利益服務年資 ) means, in relation to a member of an occupational retirement scheme, the period of service by reference to which his benefits under the scheme are ascertained; "the register" ( 註冊紀錄冊 ) means the register kept in accordance with section 6; "registered scheme" ( 註冊計劃 ) means an occupational retirement scheme which is for the time being registered under section 18; "registered trust company" ( 註冊信託公司 ) means a company which is for the time being registered under Part 8 of the Trustee Ordinance (Cap 29); "Registrar" ( 處長 ) means the Mandatory Provident Fund Schemes Authority; (Replaced 4 of 1998 s. 4) "registration" ( 註冊 ) means registration under section 18; "relevant employer" ( 有關僱主 ) means, in relation to an occupational retirement scheme, the employer who provides the employment which entitles or enables the employee to be a member of the scheme; "restricted investment" ( 受限制投資項目 ) has the meaning assigned to it by section 27; Cap OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE 4

5 "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) "vested benefit" ( 既有利益 ) means, in relation to a particular day and a particular member of an occupational retirement scheme- (a) in case the member is employed on that day by the relevant employer of the scheme, the benefit which under the scheme the member is on that day entitled to receive, either immediately or prospectively, and also the benefit (if any) which any other person is on such day entitled so to receive in respect of such member, assuming the member had voluntarily resigned and had thereby ceased to be so employed on that day; or (b) in case the member otherwise ceased to be employed by such employer before that day, the benefit which under the scheme the member is or was on such day entitled so to receive, and also the benefit (if any) which any other person is or was on that day entitled so to receive in respect of such member; "vested liability" ( 既有負債 ) means- (a) in relation to a particular day and a particular vested benefit entitlement under a defined benefit scheme, the value on that day, as determined by an actuary, of the vested benefit; or (b) in relation to a particular day and a particular vested benefit entitlement under a defined contribution scheme- (i) the contributions paid or payable under the scheme (including any amount paid or payable by reason of a guarantee given pursuant to the scheme) by the relevant employer of the scheme, and (where appropriate) by the relevant member in respect of that member assuming he ceased to be employed by that employer on that day; and (ii) the value of any declared return on such contributions, and in this definition "contributions" ( 供款 ) and "benefit entitlement" ( 利益享有權 ) include, in relation to a member who was a member of another occupational retirement scheme before joining the first-mentioned scheme, such contributions or benefit entitlement which stood to his credit under the second-mentioned scheme as were transferred in accordance with the terms of the first-mentioned scheme and stood thereunder to his credit upon his joining the first-mentioned scheme. (2) In relation to an offshore scheme references in this Ordinance to a trust shall be construed as references to- (a) in case the law of the domicile of that scheme includes a system or principles of equity, any relation between persons which under that system or those principles constitutes, or is treated or regarded as being, a trust; (b) in any other case, any relation in which- (i) by virtue of the law of the domicile of that scheme a person holds property for the benefit of another person; and (ii) as against all other persons, under the law of the domicile of that scheme the person so holding the property is, or is treated or regarded as being, the owner of it for all or most purposes, and references in this Ordinance to a trustee shall be construed as references to that person. Cap OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE 5

6 (3) A person shall not be deemed to be a person in accordance with whose directions or instructions the directors of a corporation are accustomed to act by reason only that the directors of the corporation act on advice given by him in a professional capacity. (4) In this Ordinance, "pooling agreement" ( 匯集協議 ) means an agreement or arrangement- (Amended 59 of 1993 s. 20) (a) which is- (i) governed by a single trust; or (ii) the subject of or regulated by an insurance arrangement including a series of insurance arrangements which are of the same class or description; (Amended 59 of 1993 s. 20) (b) which applies to 2 or more individual occupational retirement schemes each of which is- (i) governed by such trust; or (ii) (where appropriate) the subject of or regulated by such insurance arrangement, by virtue of such application; (c) under which, in the case of an agreement or arrangement governed by such trust, the assets of its participating schemes are vested with the administrator of the agreement or arrangement, as the case may be; (Amended 59 of 1993 s. 20) (d) which is managed, in the case of an agreement or arrangement governed by such trust, by a registered trust company; (Replaced 59 of 1993 s. 20) (e) in relation to which, and its participating schemes, proper accounts and records are kept; and (Replaced 59 of 1993 s. 20) (f) under which the value of the assets attributable to, and the liabilities of, each of its participating schemes are readily determinable from such accounts and records. (Replaced 59 of 1993 s. 20) (5) The Registrar may accept an agreement as a pooling agreement for the purposes of this Ordinance if he receives- (a) a statement by a solicitor referred to in paragraph 2(c) of Part 2 of Schedule 1; and (b) a statement by an auditor referred to in paragraph 3 of Part 2 of Schedule 1. (6) (a) A contract of employment shall not be regarded as an occupational retirement scheme by reason solely that under the contract the employer concerned agrees to pay a gratuity to the employee concerned on the termination of the contract and the period of employment to which the contract relates does not exceed 4 years. (b) Where- (i) a contract described in paragraph (a) terminates; (ii) the employee concerned is subsequently employed, whether with or without a break in service, by the same employer under another contract; and (iii) the gratuity payable under the terminated contract is not paid in full within 6 months of such termination, or though such gratuity is so paid the whole or a substantial part of it is repaid by the employee to the employer, that other contract shall be regarded as an occupational retirement scheme. (7) For the avoidance of doubt, it is hereby declared that where a registered scheme is the subject of or regulated by an insurance arrangement, the assets of the scheme are, in so far as that arrangement is concerned, any claims (including contingent and prospective claims) which may be made against the authorized insurer concerned under that arrangement. (Added 59 of 1993 s. 20) (8) For the purposes of an application for an exemption certificate under section 16 of the Mandatory Provident Fund Schemes (Exemption) Regulation (Cap 485 sub. leg. B) ("the Regulation"), where- (a) an occupational retirement scheme was established; and (b) an application for its registration under section 15 or its exemption under section 7, as the case may be, was made, within the times required to qualify as a "relevant ORSO registered scheme" within the meaning of section 2 of the Regulation, if subsequently- (i) as a result of a provision of this Ordinance, an application to register the scheme again was required; or (ii) any other change to the scheme took place that is not prohibited by this Ordinance but might create doubt that it continued to qualify as such a scheme, such an application or other change shall not affect the continuity of the scheme nor its qualification as a "relevant ORSO registered scheme" within the meaning of section 2 of the Regulation. (Added 52 of 1999 s. 2) (9) Without limiting subsection (8), the following shall not affect the continuity of a scheme nor its Cap OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE 6

7 qualification as a "relevant ORSO registered scheme" within the meaning of section 2 of the Regulation- (a) application for subsequent registration of a scheme where the scheme has ceased to be registered under section 23(5); (b) conversion of a scheme from being the subject of, or regulated by, an insurance arrangement into a scheme governed by a trust. (Added 52 of 1999 s. 2) (10) Notwithstanding subsection (8), where- (a) an occupational retirement scheme referred to in that subsection is terminated; and (b) the benefits payable to each member of the scheme have been paid out to such member, for the purposes of the Regulation, such a scheme shall cease to qualify as a "relevant ORSO registered scheme" under section 2 of the Regulation, and no application shall be made for an exemption certificate under section 16 of the Regulation in respect of it. (Added 52 of 1999 s. 2) (Enacted Amended E.R. 2 of 2014) Section: 3 Restrictions on operation of occupational retirement schemes E.R. 2 of /04/2014 (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 $5000 for each day during which the offence continues; (b) on conviction upon indictment to- (i) a fine of $500000; (ii) an additional fine of $10000 for each day during which the offence continues; and (iii) imprisonment for 2 years. (4) In this section "employer" ( 僱主 ) 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 which is not operated for the purpose of gain. (Amended 31 of 1999 s. 3) (5) For the purposes of subsection (1), where any person providing service on a full-time basis to a business or other organization in Hong Kong for a period of more than 4 years in such manner and subject to such degree of control that he may reasonably be regarded as an integral part of the organization is a member of an occupational retirement scheme, the proprietor of the organization shall be regarded as participating in the scheme as an employer whether or not there is a contract of employment between such persons and him. (Enacted Amended E.R. 2 of 2014) Section: 4 Saving of rights, etc. under unregistered schemes 30/06/1997 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. Cap OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE 7

8 Part: II REGISTRAR AND REGISTER 30/06/1997 Section: 5 Registrar of Occupational Retirement Schemes L.N. 296 of /01/2000 (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). (Enacted Replaced 4 of 1998 s. 4) Section: 6 The register 30/06/1997 (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. Part: III EXEMPTION FROM THE ORDINANCE 30/06/1997 Section: 7 Exemption 31 of /07/1997 Remarks: Adaptation amendments retroactively made - see 31 of 1999 s. 3 (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); and (Amended 53 of 1995 s. 5) (iii) such information or document as may be specified by the Registrar. (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- Cap OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE 8

9 (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. (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. Section: 8 Appeal against the Registrar's decision 30/06/1997 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). Section: 9 Periodic fee for exempted schemes 30/06/1997 (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. Section: 10 Provision of information relating to exempted schemes 30/06/1997 (1) For an exempted scheme- (a) the Registrar may by written notice require the relevant employer to give him information or a document relating to the scheme which is in the employer's possession or under his control within the period set out in the notice being not less than 14 days from the date of the notice; (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) 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; or (ii) 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, Cap OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE 9

10 within 14 days after the expiration of the period or such longer period as 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 relevant employer who without reasonable cause- (a) fails to give the Registrar information or a document pursuant to a notice under subsection (1)(a); (b) fails to give the Registrar documentary evidence or a written statement 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 cause 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 cause 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 cause 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) Section: 11 Proposal to withdraw an exemption certificate 30/06/1997 (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; (c) the requirement of section 9(3) is not complied with for the scheme; or (d) the requirement of section 10(1)(b) is not complied with for the scheme. (Replaced 53 of 1995 s. 7) (2) Where the Registrar issues a proposal in respect of an occupational retirement scheme under subsection (1), he shall- (a) publish a notice containing the proposal in at least one newspaper in the English language and one in the Chinese language circulating daily in Hong Kong; and (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- Cap OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE 10

11 (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) An employer who fails to comply with a requirement under subsection (2)(b) commits an offence and shall be liable on summary conviction to a fine of $ Section: 12 Withdrawal of exemption certificate 30/06/1997 (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; (c) the requirement of section 9(3) is not complied with for the scheme; or (d) the requirement of section 10(1)(b) is not complied with for the scheme. (Replaced 53 of 1995 s. 8) (2) Where the Registrar withdraws an exemption certificate, he shall- (Amended 53 of 1995 s. 8) (a) publish a notice of the withdrawal in at least one newspaper in the English language and one in the Chinese language circulating daily in Hong Kong; and (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 (ii) identity card within the meaning of the Registration of Persons Ordinance (Cap 177); or 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) An employer who fails to comply with a requirement under subsection (2)(b) commits an offence and shall be liable on summary conviction to a fine of $ Section: 13 Appeal against withdrawal 30/06/1997 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. (Enacted Amended 53 of 1995 s. 9) Section: 14 Coming into effect of withdrawal 30/06/1997 (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- Cap OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE 11

12 (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 at least one newspaper in the English language and one in the Chinese language circulating daily in Hong Kong; (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 (ii) identity card within the meaning of the Registration of Persons Ordinance (Cap 177); or display an appropriate notice of the Registrar's notice and make the latter available for inspection by such member. (4) An employer who fails to comply with a requirement under subsection (3)(b) commits an offence and shall be liable on summary conviction to a fine of $ Part: IV REGISTRATION OF OCCUPATIONAL RETIREMENT SCHEMES 30/06/1997 Section: 15 Application for registration 30/06/1997 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 Cap OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE 12

13 designated person by this Ordinance. Section: 16 Registrar may require information or amendment of documents 30/06/1997 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. Section: 17 Waiver and modification of registration requirements 30/06/1997 (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. Section: 18 Registration 30/06/1997 (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 requirement of section 25(2) (in the case of an existing scheme governed by a trust) has 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; and (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) (ii) the registration of the scheme under this Ordinance is cancelled; and (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, the Registrar shall allow the application. (2) Where the terms of the scheme allow the administrator of the scheme to withhold any part of any payment Cap OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE 13

14 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 (ii) by an insurance arrangement; (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 requirement of section 25(2) in relation to the scheme, 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) (ii) 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 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 requirement of section 25(2) is not possible or reasonably practicable; and (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. (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. Section: 19 Appeal against the Registrar's decision 30/06/1997 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). Part: V OPERATION OF REGISTERED SCHEMES 30/06/1997 Section: 20 Registered schemes' trustees, etc., to keep proper accounts and records, etc. 30/06/1997 General requirements Cap OCCUPATIONAL RETIREMENT SCHEMES ORDINANCE 14