An Ordinance to provide for the vesting in Hang Lung Bank, Limited of the undertaking of Dao Heng Bank Limited and for other related purposes.
[1 June 1990]
(Format changes—E.R. 3 of 2021)
Dao Heng Bank Limited (hereinafter called Dao Heng 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;
Hang Lung Bank, Limited (hereinafter called Hang Lung 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;
Hang Lung Bank is a wholly owned subsidiary of Dao Heng Bank;
for the better conduct of the business of Dao Heng Bank and Hang Lung 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 Dao Heng Bank to Hang Lung Bank; and
in view of the extent of the contractual and other legal relationships affecting the conduct of the undertaking of Dao Heng Bank, it is expedient that the said undertaking be transferred to Hang Lung Bank by this Ordinance.
(Enacting provision omitted—E.R. 3 of 2021)
This Ordinance may be cited as the Dao Heng 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 Dao Heng Bank; Dao Heng Bank (道亨銀行) means Dao Heng Bank Limited; excluded property (除外財產) means— (a)the common seal of Dao Heng Bank; (b)documents (other than accounting records) required to be kept by Dao Heng 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); (Amended 28 of 2012 ss. 912 & 920 ) (c)the issued share capital of Hang Lung Bank beneficially owned by Dao Heng Bank; and (d)the rights and benefits of Dao Heng Bank arising out of or in connection with the agreement dated 30 September 1989 and made between The Financial Secretary Incorporated and Dao Heng Bank relating to the acquisition by Dao Heng Bank of the shares in Hang Lung Bank; excluded reserves (除外儲備) means— (a)non-distributable reserves of $33,573,948.96; (b)general reserves of such amount as is equal to the value of the excluded property, as recorded in the books of account of Dao Heng Bank on the appointed day, less the nominal amount of the issued share capital of Dao Heng Bank as at the appointed day and the amount of the reserves referred to in paragraph (a) of this definition; and (c)retained earnings of such amount as is equal to the value of the excluded property, as recorded in the books of account of Dao Heng Bank on the appointed day, less the nominal amount of the issued share capital of Dao Heng Bank as at the appointed day and the amount of the reserves referred to in paragraphs (a) and (b) of this definition; existing (現有) means existing, outstanding or in force immediately before the appointed day; Hang Lung Bank (恒隆銀行) means Hang Lung 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 wheresoever situate 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, reserves and liabilities of Dao Heng Bank of whatsoever nature other than the excluded property and the excluded reserves; will (遺囑) includes a codicil and any other testamentary writing.Any reference in this Ordinance to property or liabilities of Dao Heng Bank is a reference to property or liabilities to which Dao Heng 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 Dao Heng Bank, and whether Dao Heng 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 Dao Heng Bank may appoint a day for the purposes of this Ordinance. Dao Heng Bank and Hang Lung 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, Dao Heng Bank and Hang Lung 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 Dao Heng Bank shall, in accordance with this section, be changed to “DHB Limited (道亨有限公司)”;
the name of Hang Lung Bank shall, in accordance with this section, be changed to “Dao Heng Bank Limited (道亨銀行有限公司)”;
the share premium account and capital reserves of Hang Lung Bank shall, in accordance with this section, be cancelled, and the credit arising in the books of account of Hang Lung Bank as a result of the aforesaid cancellation shall be credited to the profit and loss account of Hang Lung Bank; and
the banking licence of Dao Heng Bank shall, in accordance with this section, be revoked.
Not less than 7 days before the appointed day Dao Heng 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 Hang Lung Bank, confirming the aforesaid cancellation of the share premium account and capital reserves.
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 Dao Heng Bank in the register in place of its former name and issue to Dao Heng Bank a certificate of incorporation on change of name stating Dao Heng Bank’s new name;
shall enter the new name of Hang Lung Bank in the register in place of its former name and issue to Hang Lung Bank a certificate of incorporation on change of name stating Hang Lung Bank’s new name; and
shall certify under his hand the registration of the Ordinance and the minute which certificate shall be conclusive evidence of the cancellation of the share premium account and capital reserves of Hang Lung Bank.
On the appointed day the undertaking shall, by virtue of this Ordinance and without further act or deed, be transferred to, and vest in, Hang Lung Bank to the intent that Hang Lung Bank shall succeed to the whole undertaking as if in all respects Hang Lung Bank were the same person in law as Dao Heng 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, Dao Heng Bank shall, if Hang Lung Bank so requires, so soon as is practicable after the appointed day, take all necessary steps for securing the effective vesting thereof in Hang Lung Bank and, pending such vesting, Dao Heng Bank shall hold any such property in trust for Hang Lung Bank.
Any property deemed to be vested in Hang Lung Bank by virtue of this Ordinance which immediately before the appointed day was held by Dao Heng Bank, whether alone or jointly with any other person, as trustee or custodian trustee of any trust deed, settlement, covenant, agreement, will, or other instrument (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 Hang Lung 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 Dao Heng 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, Dao Heng 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 Dao Heng Bank there were substituted a reference to Hang Lung 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 Dao Heng 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 Dao Heng Bank in relation to the excluded property (save in respect of the issued share capital of Hang Lung Bank), shall be construed and have effect on and from the appointed day as if—
Hang Lung Bank had been a party thereto instead of Dao Heng Bank;
for any reference (however worded and whether express or implied) to Dao Heng Bank there were substituted, as respects anything falling to be done on or after the appointed day, a reference to Hang Lung Bank; and
any reference (however worded and whether express or implied) to the directors or to any director, officer or employee of Dao Heng Bank were, as respects anything falling to be done on or after the appointed day, a reference to the directors of Hang Lung Bank or, as the case may require, to such director, officer or employee of Hang Lung Bank as Hang Lung Bank may appoint for that purpose or, in default of appointment, to the director, officer or employee of Hang Lung 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 15, apply to any statutory provision, to any provision of any existing contract to which Dao Heng 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 Dao Heng Bank and a customer shall, on the appointed day, be transferred to Hang Lung Bank and become an account between Hang Lung 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 Hang Lung 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 Dao Heng Bank, either alone or jointly with another person, shall apply and have effect, on and from the appointed day, as if given to Hang Lung Bank or, as the case may be, to Hang Lung 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, Dao Heng Bank, or payable at any place of business of Dao Heng 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 Hang Lung Bank, or were payable at the same place of business of Hang Lung Bank.
The custody of any document or record, goods or other thing held by Dao Heng Bank as bailee shall pass to Hang Lung Bank on the appointed day, and the rights and obligations of Dao Heng 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 Hang Lung Bank.
Any security held immediately before the appointed day by Dao Heng Bank, or by a nominee or agent of or trustee for Dao Heng 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, Hang Lung Bank, and be available to Hang Lung 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 Hang Lung Bank in accordance with the provisions of this Ordinance and any liabilities thereby secured, Hang Lung Bank shall be entitled to the rights and priorities and be subject to the obligations and incidents to which Dao Heng 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 Dao Heng Bank and Hang Lung Bank in respect of which Dao Heng Bank or Hang Lung Bank, or a nominee or agent of or trustee for Dao Heng Bank or Hang Lung Bank holds security, that liability shall, for the purpose of enforcing or realising that security, be deemed to continue in effect notwithstanding the vesting of the undertaking in Hang Lung 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 Hang Lung 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, Dao Heng Bank or, as the case may be, Hang Lung Bank were secured thereby immediately before that day.
Where by virtue of this Ordinance any right or liability of Dao Heng Bank is deemed to become a right or liability of Hang Lung Bank, Hang Lung 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 Hang Lung Bank; and any legal proceedings or application to any authority existing or pending immediately before the appointed day by or against Dao Heng Bank may be continued by or against Hang Lung Bank.
Any judgement or award obtained by or against Dao Heng Bank and not fully satisfied before the appointed day shall on that day, to the extent to which it is enforceable by or against Dao Heng Bank, become enforceable by or against Hang Lung 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 Dao Heng 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 Dao Heng Bank and Hang Lung 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 Hang Lung Bank pursuant to section 5 on the first day of such accounting period of Dao Heng Bank;
every existing reserve of Dao Heng Bank (except the excluded reserves) shall be transferred to and for all purposes be and become a reserve of Hang Lung Bank;
the amount, description and character of every reserve of Hang Lung 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 Hang Lung 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; and
all property comprising interests in land and buildings forming part of the undertaking shall, for the purposes of preparing the balance sheet of Hang Lung Bank, be deemed to have been acquired by Hang Lung Bank at a value equal to the independent valuation of such property as at 11 October 1989 obtained by Dao Heng Bank adjusted to take account of capital expenditure and depreciation charges thereon up to and including the day immediately preceding the appointed day.
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 Dao Heng Bank earned or incurred after the beginning of the financial year of Dao Heng 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 Hang Lung Bank.
Section 7(a) shall apply to a contract for the employment of any person by Dao Heng Bank; and employment with Dao Heng Bank and Hang Lung Bank under any such contract shall be deemed for all purposes to be a single continuing employment.
No director or auditor of Dao Heng Bank shall by virtue only of this Ordinance become a director or, as the case may be, auditor of Hang Lung Bank.
The trust deed and rules constituting or relating to the fund established in Hong Kong and known as the Dao Heng Bank Limited Staff Retirement Plan 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 Dao Heng Bank there were substituted a reference to Hang Lung Bank.
No officer or employee of Dao Heng Bank who becomes an officer or employee of Hang Lung Bank by virtue of this Ordinance shall, by virtue only of this Ordinance, be entitled to participate in any pension fund of Hang Lung Bank, and no existing officer or employee of Hang Lung Bank shall, by virtue only of this Ordinance, be entitled to participate in the Dao Heng Bank Limited Staff Retirement Plan or any other pension fund of Dao Heng Bank.
All books and other documents which would, before the appointed day, have been evidence in respect of any matter for or against Dao Heng Bank shall be admissible in evidence in respect of the same matter for or against Hang Lung Bank.
On and from the appointed day Part III of the Evidence Ordinance (Cap. 8) shall apply to the banker’s records of Dao Heng Bank deemed to be vested in Hang Lung 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 Hang Lung 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 Hang Lung Bank by virtue of this Ordinance shall be deemed to have been the ordinary banker’s records of Hang Lung Bank 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 and transfer of any property and liabilities of Dao Heng Bank in Hang Lung 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 evidence of publication of notice of the appointed day, shall, in relation to any registered securities transferred to, and vested in, Hang Lung 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 Dao Heng Bank to Hang Lung Bank;
any deed or other document made or executed on or after the appointed day, whereby Hang Lung Bank or Dao Heng 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 Dao Heng 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 Dao Heng Bank in that property is deemed to be vested in Hang Lung Bank under this Ordinance;
where there is any other transaction or purported transaction by Hang Lung Bank or Dao Heng Bank on or after the appointed day in connection with, or in relation to, any property or liabilities which are property or liabilities of Dao Heng 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 Hang Lung 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 certificate given by or on behalf of Hang Lung 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 Dao Heng Bank) is or, as the case may be, is not, deemed to be vested in Hang Lung Bank under this Ordinance, shall be conclusive evidence for all purposes of the fact so certified.
Nothing in subsection (2)(c) or (d) shall affect the liability of Dao Heng Bank and Hang Lung Bank to the other of them in respect of anything done, or purporting to have been done, by either of them in connection with, or in relation to, any property or liabilities.
In subsection (2)—
Nothing in this section applies to any property falling within section 5(2).
The vesting in Hang Lung Bank of an interest in land by virtue of this Ordinance shall not—
constitute the acquisition, assignment, transfer or parting with possession of that interest for the purposes of sections 53(4)(a) or 53(7)(a) of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7); or (Amended 16 of 2004 s. 16)
operate so as to merge any leasehold interest in the reversion expectant on it; or
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 or affecting that interest; or
operate as a breach of covenant or condition against alienation; or
give rise to any forfeiture, damages or other right of action; or
invalidate or discharge any contract or security.
Nothing in this Ordinance shall exempt Dao Heng Bank or Hang Lung Bank or any other subsidiary of Dao Heng 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 Hang Lung 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 Dao Heng 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)