To provide for the vesting in The Daiwa Bank, Limited of the Hong Kong undertaking of Rainier International Bank; and for other related purposes.
[8 July 1988]
(Format changes—E.R. 7 of 2020)
Rainier International Bank (hereinafter called Rainier) is an Edge Act corporation organized under the laws of the United States of America having its home office at Los Angeles;
The Daiwa Bank, Limited (hereinafter called Daiwa) is a company organized under the laws of Japan having its registered office at Osaka;
Rainier is a bank licensed under the Banking Ordinance (Cap. 155) and carries on the business of banking in the United States of America and Hong Kong;
Daiwa is a bank licensed under the Banking Ordinance (Cap. 155) and carries on the business of banking in Japan, Hong Kong and elsewhere;
on 27 April 1988 a conditional sale and purchase agreement was entered into between Rainier and Daiwa which includes provision for the acquisition by Daiwa of the Hong Kong undertaking of Rainier; and
in view of the extent of the contractual and other legal relationships affecting the conduct of the Hong Kong undertaking of Rainier, it is a condition of completion of such sale and purchase agreement that this Ordinance is enacted:
This Ordinance may be cited as the Rainier International Bank (Transfer of Hong Kong Undertaking) Ordinance.
In this Ordinance, unless the subject or context otherwise requires—
Agreement (有關協議) means the conditional sale and purchase agreement dated 27 April 1988 made between Rainier and Daiwa which includes provision for the acquisition by Daiwa of the Hong Kong undertaking; appointed day (指定日期) means such day (not being later than 30 September 1988) as may be specified in a joint notice given by Rainier and Daiwa pursuant to section 3 of this Ordinance; customer (客戶) means any person having a banking account or other dealing, transaction or arrangement with Rainier in connection with the Hong Kong undertaking; Daiwa means The Daiwa Bank, Limited; existing (現有) means existing, outstanding or in force immediately before the appointed day; Hong Kong undertaking (香港業務) means the business of the 9 Hong Kong branches of Rainier and all existing property and liabilities of Rainier of whatsoever nature pertaining thereto or which are derived therefrom, being business, property and liabilities which are governed by Hong Kong law, the transfer of which is governed by Hong Kong law or which are derived from the Hong Kong business of the said 9 Hong Kong branches, but excluding—(i)the cash sum to be repaid from the Hong Kong undertaking to Rainier pursuant to the provisions of the Agreement;(ii)the issued shares in the capital of Rainier International Finance Company Limited;(iii)the business of the home office of Rainier and of the branches of Rainier outside Hong Kong and all existing property and liabilities of Rainier of whatsoever nature pertaining thereto or derived therefrom; and(iv)documents required to be kept by Rainier pursuant to the provisions of the Companies Ordinance (Cap. 32) as in force from time to time before the commencement date* of section 2 of Schedule 9 to the Companies Ordinance (Cap. 622); (Amended 28 of 2012 ss. 912 & 920) liabilities (法律責任) includes duties and obligations of every description (whether present or future, actual or contingent); property (財產) means property and assets of every description and rights of every description (whether present or future, actual or contingent), and includes property held on trust and securities, benefits and powers of every description; Rainier means Rainier International Bank; security (抵押) includes a mortgage or charge (whether legal or equitable), debenture, bill of exchange, promissory note, guarantee, lien, pledge (whether actual or constructive), hypothecation, assignment by way of security, indemnity, right of set-off, undertaking or other means of securing payment or discharge of a liability (whether present or future, actual or contingent); will (遺囑) includes a codicil and any other testamentary writing.Any reference in this Ordinance to property or liabilities of Rainier is a reference to property or liabilities to which Rainier is for the time being entitled or subject (whether beneficially or in any fiduciary capacity) and forming part of the Hong Kong undertaking, wherever such property or liabilities are situated or arise and whether or not capable of being transferred or assigned by Rainier, and whether Rainier is entitled to such property or subject to such liabilities under the law of Hong Kong or under the law of any country or territory outside Hong Kong.
Any body politic or corporate and any other person or persons whose rights are affected by any of the provisions of this Ordinance shall be deemed to be mentioned herein.
Rainier and Daiwa shall give joint notice in the Gazette of the day expected to be the appointed day save that, in the event that such day proves not to be the appointed day for any reason, Rainier and Daiwa shall give joint notice in the Gazette to that effect and shall again give joint notice in the Gazette of the next day expected to be the appointed day or, as the case may be, of the day which was the appointed day.
On the appointed day the Hong Kong undertaking shall be deemed for the purpose of Hong Kong law to be transferred to, and vest in, Daiwa to the intent that Daiwa shall succeed to the Hong Kong undertaking.
Any property deemed to be vested in Daiwa by virtue of this Ordinance which immediately before the appointed day was held by Rainier, whether alone or jointly with any other person, as trustee or custodian trustee of any trust deed, settlement, covenant, agreement or will (whether originally so appointed or not, and whether appointed under hand or seal, or by order of any court), or as executor of the will, or administrator of the estate, of a deceased person or as judicial trustee appointed by order of any court, or in any other fiduciary capacity, shall, on and from the appointed day, be held by Daiwa alone or, as the case may be, jointly with such other person, in the same capacity upon the trusts, and with and subject to the powers, provisions and liabilities, applicable thereto respectively.
Any existing instrument or order of any court under or by virtue of which any property deemed to be vested in Daiwa by virtue of this Ordinance became vested in Rainier in any such fiduciary capacity as is referred to in subsection (1) (including in the case of a will any grant of probate thereof, and any provision in such instrument or order, or any existing contract or arrangement, for the payment to, or retention by, Rainier of remuneration for its services in any such fiduciary capacity, shall, on and from the appointed day, be construed and have effect, so far as the context permits, as if for any reference therein to Rainier there were substituted a reference to Daiwa.
No testamentary gift shall be adeemed by reason only of the operation of any of the provisions of this Ordinance.
Without prejudice to the generality of the foregoing provisions but subject to any provision of this Ordinance to the contrary effect, the following provisions of this section shall have effect with respect to the Hong Kong undertaking with respect to matters within Hong Kong or subject to the laws of Hong Kong—
Every contract to which Rainier is a party (whether in writing or not) shall have effect on and from the appointed day as if—
Daiwa had been a party thereto instead of Rainier;
for any reference (however worded and whether express or implied) to Rainier there were substituted, as respects anything falling to be done on or after the appointed day, a reference to Daiwa;
any reference (however worded and whether express or implied) to the directors or to any director, officer or employee of Rainier were, as respects anything falling to be done on or after the appointed day, a reference to the directors of Daiwa or, as the case may require, to such director, officer or employee of Daiwa as Daiwa may appoint for that purpose or, in default of appointment, to the director, officer or employee of Daiwa who corresponds as nearly as may be to the first-mentioned director, officer or employee:Provided that paragraph (a) shall not apply to the Agreement or any agreement expressed to be made pursuant or supplemental thereto.
Subparagraph (a)(ii) shall apply to any statutory provision, to any provision of any existing contract to which Rainier was not a party and to any provision of any other existing document (not being a contract or a will) as they apply to a contract to which that paragraph applies:Provided that such subparagraph shall not apply to any existing authorization or exemption under any enactment regulating the carrying on of the business of Rainier.
Any account between Rainier and a customer shall, on the appointed day, become an account between Daiwa and such customer subject to the same conditions and incidents as theretofore; and such account shall be deemed for all purposes to be a single continuing account:Provided that nothing in this Ordinance shall affect any right of Daiwa or of the customer to vary the conditions or incidents subject to which any account is kept.
Any existing instruction, order, direction, mandate, power of attorney, authority, undertaking or consent given to Rainier (whether in writing or not and whether or not in relation to an account) shall have effect, on and from the appointed day, as if given to Daiwa.
Any negotiable instrument or order for payment of money drawn on or given to, or accepted or endorsed by, Rainier, or payable at any place of business of Rainier, whether so drawn, given, accepted or endorsed before, or on the appointed day, shall have the same effect on and from the appointed day, as if it had been drawn on, or given to, or accepted or endorsed by Daiwa, or were payable at the same place of business of Daiwa.
The custody of any document or record, goods or other thing held by Rainier as bailee shall pass to Daiwa on the appointed day, and the rights and obligations of Rainier under any contract of bailment relating to any such document or record, goods or thing shall on that day become rights and obligations of Daiwa.
Any security held immediately before the appointed day by Rainier, or by a nominee or agent of or trustee for Rainier, as security for the payment or discharge of any liability shall, on and from the appointed day, be held by, or, as the case may require, by that nominee, agent or trustee for, Daiwa, and be available to Daiwa (whether for its own benefit or, as the case may be, for the benefit of any other person) as security for the payment or discharge of that liability;
in relation to any security vested in Daiwa in accordance with the provisions of this Ordinance and any liabilities thereby secured, Daiwa shall be entitled to the rights and priorities and be subject to the obligations and incidents to which Rainier would have been entitled and subject if it had continued to hold the security;
without prejudice to the generality of subparagraph (ii), in any case where any existing liability subsists between Rainier and Daiwa in respect of which Rainier or Daiwa, or a nominee or agent of or trustee for Rainier or Daiwa holds security, that liability shall, for the purpose of enforcing or realizing that security, be deemed to continue in effect notwithstanding the vesting in Daiwa of the Hong Kong undertaking;
any security referred to in subparagraph (i), (ii) or (iii) and which extends to future advances or liabilities shall, on and from the appointed day, be available to Daiwa (whether for its own benefit or, as the case may be, for the benefit of any other person) as security for the payment or discharge of future advances and future liabilities to the same extent and in the same manner in all respects as future advances by, or liabilities to, Rainier or, as the case may be, Daiwa were secured thereby immediately before that day.
Where by virtue of this Ordinance any right or liability of Rainier is deemed to become a right or liability of Daiwa, Daiwa and all other persons shall, on and from the appointed day, have the same rights, powers and remedies (and in particular the same rights and powers as to taking or resisting legal proceedings or making or resisting applications to any authority) for ascertaining, perfecting or enforcing that right or liability as if it had at all times been a right or liability of Daiwa; and any legal proceedings or application to any authority existing or pending immediately before the appointed day by or against Rainier may be continued by or against Daiwa.
Any judgment or award obtained by or against Rainier and not fully satisfied before the appointed day shall on that day, to the extent to which it is enforceable by or against Rainier, become enforceable by or against Daiwa.
Section 6(a) shall apply to a contract for the employment of any person by Rainier; and employment with Rainier and Daiwa under any such contract shall be deemed for all purposes to be a single continuing employment.
No director or auditor of Rainier shall by virtue only of this Ordinance become a director or, as the case may be, auditor of Daiwa.
All books and other documents which would, before the appointed day, have been evidence in respect of any matter for or against Rainier shall be admissible in evidence in respect of the same matter for or against Daiwa.
On and from the appointed day Part III of the Evidence Ordinance (Cap. 8) shall apply to the banker’s records of Rainier deemed to be vested in Daiwa by virtue of this Ordinance, and to entries made in those records before the appointed day, as if such records were the records of Daiwa.
For the purposes of section 20 of the Evidence Ordinance (Cap. 8), banker’s records which are deemed to have become the banker’s records of Daiwa by virtue of this Ordinance shall be deemed to have been the ordinary banker’s records of Daiwa at the time of the making of any entry therein which purports to have been made before the appointed day, and any such entry shall be deemed to have been made in the usual and ordinary course of business.
The production of a Government Printer’s copy of this Ordinance shall, for all purposes, be conclusive evidence of the vesting of any property and liabilities of Rainier in Daiwa in accordance with the provisions of this Ordinance.
Without prejudice to the generality of subsection (1)—
any document made or executed on or after the appointed day, whereby Daiwa or Rainier, whether alone or jointly with any other person, conveys or transfers, or purports to convey or transfer, to any person (whether for consideration or not), or applies to be registered as the holder or proprietor of, any property held by Rainier immediately before the appointed day and forming part of the Hong Kong undertaking, whether alone or jointly with any other person, shall be sufficient evidence that the interest of Rainier in that property is deemed to be vested in Daiwa under this Ordinance;
where there is any other transaction or purported transaction by Daiwa or Rainier on or after the appointed day in connection with, or in relation to, any property or liabilities which are property or liabilities of Rainier immediately before that day and forming part of the Hong Kong undertaking, it shall be deemed in favour of any other party to the transaction, or any person claiming through or under him, that Daiwa has full power and authority for that transaction as if the property or liabilities were deemed to be vested in it under this Ordinance;
a joint certificate given by or on behalf of Rainier and Daiwa at any time that any property or liability specified in the certificate (which property or liability immediately before the appointed day is the property or liability of Rainier) is or, as the case may be, is not, deemed to be vested in Daiwa under this Ordinance, shall be conclusive evidence for all purposes of the fact so certified;
The deemed vesting in Daiwa of an interest in land by virtue of this Ordinance shall not—
(Repealed 16 of 2004 s. 16)
constitute an assignment, transfer, devolution, parting with possession, dealing with or other disposition of that interest for the purposes of any provision contained in any instrument concerning that interest; or
give rise to any forfeiture; or
invalidate or discharge any contract or security; or
operate so as to merge any leasehold interest in the reversion expectant on it.
Nothing in this Ordinance shall exempt Daiwa or Rainier or any other subsidiary of Daiwa or Rainier from the provisions of any enactment regulating the carrying on of the business of any of them.
Nothing in this Ordinance shall prejudice the powers of Daiwa to alter its articles and memorandum of association or to dispose of, or deal with, its property, security or liabilities or to carry on or discontinue any part of its business; and nothing in this Ordinance shall prejudice the powers of Rainier to dispose of, or deal with, its property, security or liabilities before the appointed day.
Nothing in this Ordinance shall affect or be deemed to affect the rights of the Central Authorities or the Government of the Hong Kong Special Administrative Region under the Basic Law and other laws, or the rights of any body politic or corporate or of any other persons except such as are mentioned in this Ordinance and those claiming by, from or under them. (Amended 60 of 1999 s. 3)
Nothing in this Ordinance shall affect the liability of Rainier and Daiwa to the other of them pursuant to the Agreement.