To provide for the vesting in First Pacific Bank Limited of the undertaking of Far East Bank, Limited and for other related purposes.
[15 December 1989]
(Format changes—E.R. 7 of 2020)
First Pacific Bank Limited (hereinafter called First Pacific Bank) is a company incorporated under the laws of Hong Kong having its registered office in Hong Kong and, as a bank licensed under the Banking Ordinance (Cap. 155), carries on the business of banking in Hong Kong and elsewhere;
Far East Bank, Limited (hereinafter called Far East Bank) is a company incorporated under the laws of Hong Kong having its registered office in Hong Kong and, as a bank licensed under the Banking Ordinance (Cap. 155), carries on the business of banking in Hong Kong;
First Pacific Bank is a wholly owned subsidiary of Far East Bank;
for the better conduct of the businesses of First Pacific Bank and Far East Bank, it is expedient that their respective undertakings be merged and that such merger should occur by means of a transfer of the undertaking of Far East Bank to First Pacific Bank; and
in view of the extent of the contractual and other legal relationships affecting the conduct of the undertaking of Far East Bank, it is expedient that the said undertaking be transferred to First Pacific Bank by this Ordinance.
This Ordinance may be cited as the First Pacific Bank Limited Ordinance.
In this Ordinance, unless the subject or context otherwise requires—
appointed day (指定日期) means such day as may be appointed pursuant to section 3; customer (客戶) means any person having a banking account or other dealing, transaction or arrangement with Far East Bank; excluded property (除外財產) means the common seal of Far East Bank, documents (other than accounting records) required to be kept by Far East Bank pursuant to 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) and the issued shares in the capital of First Pacific Bank beneficially owned by Far East Bank; (Amended 28 of 2012 ss. 912 & 920) existing (現有) means existing, outstanding or in force immediately before the appointed day; Far East Bank (遠東銀行) means Far East Bank, Limited; First Pacific Bank (第一太平銀行) means First Pacific Bank Limited; liabilities (債務) 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 but does not include the excluded property; security (抵押) includes a mortgage or charge (whether legal or equitable and including any sub-mortgage), debenture, bill of exchange, promissory note, guarantee, lien, pledge (whether actual or constructive), hypothecation, assignment by way of security, indemnity, right of set-off, agreement or undertaking (whether in writing or not) or other means (in each case made, granted, arising or subsisting under any applicable law) of securing payment or discharge of a debt or liability (whether present or future, actual or contingent); undertaking (業務) means the business and all existing property, other than the excluded property, and liabilities, other than those relating to the excluded property, of Far East Bank of whatsoever nature; will (遺囑) includes a codicil and any other testamentary writing.Any reference in this Ordinance to property or liabilities of Far East Bank is a reference to property or liabilities to which Far East Bank is for the time being entitled or subject (whether beneficially or in any fiduciary capacity), wherever such property or liabilities are situated or arise and whether or not capable of being transferred or assigned by Far East Bank, and whether Far East Bank 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.
The directors of Far East Bank may appoint a day for the purposes of this Ordinance. Far East Bank and First Pacific Bank shall give joint notice in the Gazette stating the day so appointed save that, in the event that such day proves not to be the appointed day for any reason, Far East Bank and First Pacific Bank shall give joint notice in the Gazette to that effect and shall again give joint notice in the Gazette stating the next day so appointed or, as the case may be, the day which was the appointed day.
On the appointed day, by virtue of this Ordinance—
the name of Far East Bank shall, in accordance with this section, be changed to “FEB (1989) Limited”;
the share premium account of Far East Bank shall, in accordance with this section, be reduced to such amount as is equal to the value of the excluded property, as recorded in the books of account of Far East Bank, less the nominal amount of the issued share capital of Far East Bank as at the appointed day, and the credit arising in the books of account of Far East Bank as a result of such reduction of the share premium account shall be applied in creating a special non-distributable reserve which shall be transferred to First Pacific Bank pursuant to section 8(1)(b); and
the banking licence of Far East Bank shall, in accordance with this section, be revoked.
Not less than 3 days before the appointed day Far East Bank shall deliver to the Registrar of Companies a copy of this Ordinance together with a minute, signed by a director or the secretary of Far East Bank, showing with respect to the share capital of Far East Bank, as altered by this Ordinance, the amount retained in the share premium account.
The Registrar of Companies shall, pursuant to this Ordinance, register the copy of the Ordinance and the minute delivered to him pursuant to subsection (2) and on the appointed day—
shall enter the new name of Far East Bank in the register in place of its former name and issue to Far East Bank a certificate of incorporation on change of name stating Far East Bank’s new name; and
certify under his hand the registration of the Ordinance and the minute, which certificate shall be conclusive evidence that the share premium account of Far East Bank is as stated in the minute.
On the appointed day the undertaking shall, by virtue of this Ordinance and without further act or deed, be transferred to, and vest in, First Pacific Bank to the intent that First Pacific Bank shall succeed to the whole undertaking as if in all respects First Pacific Bank were the same person in law as Far East Bank.
Where the vesting of any property situate in any country or territory outside Hong Kong and forming part of the undertaking is governed otherwise than by the law of Hong Kong, Far East Bank shall, if First Pacific Bank so requires, so soon as is practicable after the appointed day, take all necessary steps for securing the effective vesting thereof in First Pacific Bank and, pending such vesting, Far East Bank shall hold any such property in trust for First Pacific Bank.
Any property deemed to be vested in First Pacific Bank by virtue of this Ordinance which immediately before the appointed day was held by Far East Bank, 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 First Pacific Bank 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 became vested in Far East Bank 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, Far East Bank 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 Far East Bank there were substituted a reference to First Pacific Bank.
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 any other provision of this Ordinance but subject to any provision of this Ordinance to the contrary effect, the following provisions of this section shall have effect—
All existing contracts, agreements, certificates, awards, conveyances, deeds, leases, licences, notices, permits, guarantees, documents granting or comprising any security, bonds, indemnities, mandates, instructions and other instruments and undertakings entered into by, made with, given to or by or addressed to Far East Bank (whether alone or with any other person and whether as principal or agent and whether in writing or not), other than those entered into, made, given to or by or addressed to Far East Bank in relation to the excluded property, shall be construed and have effect on and from the appointed day as if—
First Pacific Bank had been a party thereto instead of Far East Bank;
for any reference (however worded and whether express or implied) to Far East Bank there were substituted, as respects anything falling to be done on or after the appointed day, a reference to First Pacific Bank;
any reference (however worded and whether express or implied) to the directors or to any director, officer or employee of Far East Bank were, as respects anything falling to be done on or after the appointed day, a reference to the directors of First Pacific Bank or, as the case may require, to such director, officer or employee of First Pacific Bank as First Pacific Bank may appoint for that purpose or, in default of appointment, to the director, officer or employee of First Pacific Bank who corresponds as nearly as may be to the first-mentioned director, officer or employee.
Paragraph (a)(ii) shall, subject to the provisions of section 14, apply to any statutory provision, to any provision of any existing contract to which Far East Bank 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.
Any account between Far East Bank and a customer shall, on the appointed day, be transferred to First Pacific Bank and become an account between First Pacific Bank 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 First Pacific Bank or of any 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 (whether in writing or not and whether or not in relation to an account) given to Far East Bank, either alone or jointly with another person, shall apply and have effect, on and from the appointed day, as if given to First Pacific Bank or, as the case may be, to First Pacific Bank jointly with such other person.
Any negotiable instrument or order for payment of money drawn on or given to, or accepted or endorsed by, Far East Bank, or payable at any place of business of Far East Bank, 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 First Pacific Bank, or were payable at the same place of business of First Pacific Bank.
The custody of any document or record, goods or other thing held by Far East Bank as bailee shall pass to First Pacific Bank on the appointed day, and the rights and obligations of Far East Bank under any contract of bailment relating to any such document or record, goods or thing shall on that day become rights and obligations of First Pacific Bank.
Any security held immediately before the appointed day by Far East Bank, or by a nominee or agent of or trustee for Far East Bank, 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, First Pacific Bank, and be available to First Pacific Bank (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 First Pacific Bank in accordance with the provisions of this Ordinance and any liabilities thereby secured, First Pacific Bank shall be entitled to the rights and priorities and be subject to the obligations and incidents to which Far East Bank 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 Far East Bank and First Pacific Bank in respect of which Far East Bank or First Pacific Bank, or a nominee or agent of or trustee for Far East Bank or First Pacific Bank holds security, that liability shall, for the purpose of enforcing or realizing that security, be deemed to continue in effect notwithstanding the vesting of the undertaking in First Pacific Bank;
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 First Pacific Bank (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 liabilities to the same extent and in the same manner in all respects as future advances by, or liabilities to, Far East Bank or, as the case may be, First Pacific Bank were secured thereby immediately before that day.
Where by virtue of this Ordinance any right or liability of Far East Bank is deemed to become a right or liability of First Pacific Bank, First Pacific Bank 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 First Pacific Bank; and any legal proceedings or application to any authority existing or pending immediately before the appointed day by or against Far East Bank may be continued by or against First Pacific Bank.
Any judgement or award obtained by or against Far East Bank and not fully satisfied before the appointed day shall on that day, to the extent to which it is enforceable by or against Far East Bank, become enforceable by or against First Pacific Bank.
Nothing in this Ordinance shall terminate or prejudicially affect the appointment, authority, rights or powers of any receiver or of any receiver and manager appointed by Far East Bank, whether alone or with others, before the appointed day.
On and from the appointed day, by virtue of this Ordinance and notwithstanding the provisions of any other Ordinance—
the balance sheets and profit and loss accounts of First Pacific Bank and Far East Bank for the accounting period of each company in which the appointed day falls shall be prepared in all respects as if the undertaking had vested in First Pacific Bank pursuant to section 5 on the first day of such accounting periods;
every existing reserve of Far East Bank, including the special non-distributable reserve created pursuant to section 4(1)(b), shall be transferred to and for all purposes be and become a reserve of First Pacific Bank;
the amount, description and character of every reserve of First Pacific Bank which shall come into being pursuant to paragraph (b) shall be the same in all respects as those of the corresponding existing reserve immediately before such appointed day, and all enactments and rules of law shall apply to or in respect of every such reserve of First Pacific Bank in the same manner in all respects as they applied to or in respect of the corresponding existing reserve immediately before the appointed day;
all property comprising interests in land and buildings forming part of the undertaking shall, for the purposes of preparing the balance sheet of First Pacific Bank, be deemed to have been acquired by First Pacific Bank at a value equal to the independent valuation of such property as at 31 March 1989 obtained by Far East Bank; and
any retained profits of Far East Bank as at the first day of such accounting periods shall be distributable by First Pacific Bank.
Every reference in subsection (1) to an existing reserve shall include a reference to any reserve or similar provision, irrespective of its name or designation (and whether the amount thereof be positive or negative in nature) and, without prejudice to the generality of the foregoing, every such reference shall include a reference to any sums standing to the credit (or debit) of any profit and loss account.
Without prejudice to the generality of subsection (1), any profits or losses of Far East Bank earned or incurred after the beginning of the financial year of Far East Bank in which the appointed day shall occur, shall, on and from the appointed day, and by virtue of this Ordinance, be treated for all purposes as profits or, as the case may be, losses, of First Pacific Bank.
Section 7(a) shall apply to a contract for the employment of any person by Far East Bank; and employment with Far East Bank and First Pacific Bank under any such contract shall be deemed for all purposes to be a single continuing employment.
No director or auditor of Far East Bank shall by virtue only of this Ordinance become a director or, as the case may be, auditor of First Pacific Bank.
All books and other documents which would, before the appointed day, have been evidence in respect of any matter for or against Far East Bank shall be admissible in evidence in respect of the same matter for or against First Pacific Bank.
On and from the appointed day Part III of the Evidence Ordinance (Cap. 8) shall apply to the banker’s records of Far East Bank deemed to be vested in First Pacific Bank by virtue of this Ordinance, and to entries made in those records before the appointed day, as if such records were the records of First Pacific Bank.
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 First Pacific Bank by virtue of this Ordinance shall be deemed to have been the ordinary banker’s records of First Pacific Bank at the time of the making 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 and transfer of any property and liabilities of Far East Bank in First Pacific Bank in accordance with the provisions of this Ordinance.
Without prejudice to the generality of subsection (1)—
a Government Printer’s copy of this Ordinance, together with such evidence of publication of notice of the appointed day, shall, in relation to any registered securities transferred to, and vested in, First Pacific Bank by virtue of this Ordinance, operate for all purposes as a duly executed instrument of transfer in respect of the transfer of such registered securities from Far East Bank to First Pacific Bank;
any deed or other document made or executed on or after the appointed day, whereby First Pacific Bank or Far East Bank, 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 Far East Bank immediately before the appointed day and forming part of the undertaking, whether alone or jointly with any other person, shall be sufficient evidence that the interest of Far East Bank in that property is deemed to be vested in First Pacific Bank under this Ordinance;
where there is any other transaction or purported transaction by First Pacific Bank or Far East Bank on or after the appointed day in connection with, or in relation to, any property or liabilities which are property or liabilities of Far East Bank immediately before that day and forming part of the undertaking, it shall be deemed in favour of any other party to the transaction, or any person claiming through or under him, that First Pacific Bank 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 Far East Bank and First Pacific Bank 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 Far East Bank) is or, as the case may be, is not, deemed to be vested in First Pacific Bank under this Ordinance, shall be conclusive evidence for all purposes of the fact so certified.
In subsection (2)—
Nothing in this section applies to any property falling within section 5(2).
The vesting in First Pacific Bank 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 Far East Bank or First Pacific Bank or any other subsidiary of Far East Bank 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 First Pacific Bank to alter its articles 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 Far East Bank to dispose of, or deal with, its property, security or liabilities before the appointed day.
(Amended 28 of 2012 ss. 912 & 920)
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)