An Ordinance to provide for the vesting in Emirates Bank International Limited of the undertaking of Middle East Finance International Limited and for other related purposes.
Middle East Finance International Limited (MEFIL) is a company incorporated under the laws of Hong Kong having its registered office in Hong Kong and, as a deposit-taking company registered under the Banking Ordinance (Cap. 155), carries on the business of taking deposits in Hong Kong;
Emirates Bank International Limited (Emirates Bank) is a company incorporated in the Emirate of Dubai by decree of His Highness the Ruler of Dubai having its head office in Dubai, and is a restricted licence bank under the Banking Ordinance (Cap. 155);
MEFIL is a subsidiary of Emirates Bank;
for the better conduct of the business of Emirates Bank in Hong Kong, it is expedient that the undertaking of MEFIL be transferred to Emirates Bank; and
in view of the extent of the contractual and other legal relationships affecting the conduct of the undertaking of MEFIL, it is expedient that the said undertaking be transferred to Emirates Bank by this Ordinance.
(Format changes—E.R. 4 of 2023)
(Enacting provision omitted—E.R. 4 of 2023)
This Ordinance may be cited as the Middle East Finance International Limited (Transfer of Undertaking) 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 an account or other dealing, transaction or arrangement with MEFIL; Emirates Bank (聯合酋長銀行) means Emirates Bank International Limited; excluded property (除外財產) means—(a)the common seal of MEFIL;(b)documents (other than accounting records) required to be kept by MEFIL 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 (Amended 28 of 2012 ss. 912 & 920)(c)the purchase consideration for the undertaking to be paid by Emirates Bank to MEFIL; existing (現有) means existing, outstanding or in force immediately before the appointed day; liabilities (債務) includes duties and obligations of every description (whether present or future, actual or contingent); MEFIL (中東財務) means Middle East Finance International Limited; 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, liabilities and provision against assets of MEFIL other than the excluded property; (Amended E.R. 4 of 2023) will (遺囑) includes a codicil and any other testamentary writing.Any reference in this Ordinance to property or liabilities of MEFIL is a reference to property or liabilities to which MEFIL 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 MEFIL, and whether MEFIL 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.
MEFIL and Emirates Bank shall give joint notice in the Gazette stating the day appointed as the appointed day save that, in the event that such day proves not to be the appointed day for any reason, MEFIL and Emirates 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 registration of MEFIL as a deposit-taking company shall, in accordance with this section, be revoked.
On the appointed day the undertaking shall, by virtue of this Ordinance and without further act or deed, be transferred to, and vest in, Emirates Bank to the intent that Emirates Bank shall succeed to the whole undertaking.
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, MEFIL shall, if Emirates Bank so requires, so soon as is practicable after the appointed day, take all necessary steps for securing the effective vesting thereof in Emirates Bank and, pending such vesting, MEFIL shall hold any such property in trust for Emirates Bank.
Any property vested in Emirates Bank by virtue of this Ordinance which immediately before the appointed day was held by MEFIL, 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 Emirates 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 MEFIL, 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, MEFIL 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 MEFIL there were substituted a reference to Emirates 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 MEFIL (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 MEFIL in relation to the excluded property and the agreement by Emirates Bank to pay the purchase consideration for the undertaking to MEFIL shall be construed and have effect on and from the appointed day as if—
Emirates Bank had been a party thereto instead of MEFIL;
for any reference (however worded and whether express or implied) to MEFIL there were substituted, as respects anything falling to be done on or after the appointed day, a reference to Emirates Bank; and
any reference (however worded and whether express or implied) to the directors or to any director, officer or employee of MEFIL were, as respects anything falling to be done on or after the appointed day, a reference to the directors of Emirates Bank or, as the case may require, to such director, officer or employee of Emirates Bank as Emirates Bank may appoint for that purpose or, in default of appointment, to the director, officer or employee of Emirates 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 MEFIL 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.
Each account between MEFIL and a customer shall, on the appointed day, be transferred to Emirates Bank and become an account between Emirates 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 Emirates Bank or of any customer to vary the conditions or incidents subject to which any account is kept.
Each 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 MEFIL, either alone or jointly with another person, shall apply and have effect, on and from the appointed day, as if given to Emirates Bank or, as the case may be, to Emirates Bank jointly with such other person.
Each negotiable instrument or order for payment of money drawn on or given to, or accepted or endorsed by, MEFIL, or payable at any place of business of MEFIL, 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 Emirates Bank, or were payable at the same place of business of Emirates Bank.
The custody of each document or record, goods or other thing held by MEFIL as bailee shall pass to Emirates Bank on the appointed day, and the rights and obligations of MEFIL under each contract of bailment relating to any such document or record, goods or thing shall on that day become rights and obligations of Emirates Bank.
Each security held immediately before the appointed day by MEFIL, or by a nominee or agent of or trustee for MEFIL, 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, Emirates Bank, and be available to Emirates 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 each security vested in Emirates Bank in accordance with the provisions of this Ordinance and the liabilities thereby secured, Emirates Bank shall be entitled to the rights and priorities and be subject to the obligations and incidents to which MEFIL 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 an existing liability subsists between MEFIL and Emirates Bank in respect of which MEFIL or Emirates Bank, or a nominee or agent of or trustee for MEFIL or Emirates 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 Emirates 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 Emirates 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, MEFIL or, as the case may be, Emirates Bank were secured thereby immediately before that day.
Where by virtue of this Ordinance any right or liability of MEFIL is deemed to become a right or liability of Emirates Bank, Emirates 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 Emirates Bank; and any legal proceedings or application to any authority existing or pending immediately before the appointed day by or against MEFIL may be continued by or against Emirates Bank.
Each judgment or award obtained by or against MEFIL and not fully satisfied before the appointed day shall on that day, to the extent to which it is enforceable by or against MEFIL, become enforceable by or against Emirates 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 MEFIL, 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 MEFIL and Emirates 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 Emirates Bank pursuant to section 5 on the first day of such accounting period of MEFIL;
every existing provision against assets of MEFIL shall be transferred to and for all purposes be and become a provision against assets of Emirates Bank; and
the amount, description and character of every provision of Emirates Bank which shall come into being pursuant to paragraph (b) shall be the same in all respects as those of the corresponding existing provision immediately before such appointed day, and all enactments and rules of law shall apply to or in respect of every such provision of Emirates Bank in the same manner in all respects as they applied to or in respect of the corresponding existing provision immediately before the appointed day.
Every reference in subsection (1) to an existing provision shall include a reference to any such provision, irrespective of its name or designation including the obligation account of MEFIL but not including any sums standing to the credit (or debit) of any profit and loss account or general reserves.
Without prejudice to the generality of subsection (1) any agreed tax losses of MEFIL under section 19C(4) of the Inland Revenue Ordinance (Cap. 112) to the extent not set-off against the assessable profits of MEFIL shall, on and from the appointed day, and by virtue of this Ordinance, be treated as agreed tax losses of Emirates Bank for the purposes of section 19C(4) of the Inland Revenue Ordinance (Cap. 112).
Section 7(a) shall apply to a contract for the employment of any person by MEFIL; and employment with MEFIL and Emirates Bank under any such contract shall be deemed for all purposes to be a single continuing employment.
No director or auditor of MEFIL shall by virtue only of this Ordinance become a director or, as the case may be, auditor of Emirates Bank.
The rules relating to the MEFIL Provident Fund and the gratuity benefits payable by MEFIL 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 MEFIL there were substituted a reference to Emirates Bank.
No officer or employee of MEFIL who becomes an officer or employee of Emirates Bank by virtue of this Ordinance shall, by virtue only of this Ordinance, be entitled to participate in any provident fund or gratuity benefits payable by Emirates Bank and no existing officer or employee of Emirates Bank shall, by virtue only of this Ordinance, be entitled to participate in the MEFIL Provident Fund or the gratuity benefits payable by MEFIL.
All books and other documents which would, before the appointed day, have been evidence in respect of any matter for or against MEFIL shall be admissible in evidence in respect of the same matter for or against Emirates Bank.
On and from the appointed day Part III of the Evidence Ordinance (Cap. 8) shall apply to the banker’s records of MEFIL deemed to be vested in Emirates 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 Emirates 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 Emirates Bank by virtue of this Ordinance shall be deemed to have been the ordinary banker’s records of Emirates 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 MEFIL in Emirates 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, Emirates 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 MEFIL to Emirates Bank;
any deed or other document made or executed on or after the appointed day, whereby Emirates Bank or MEFIL, 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 MEFIL 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 MEFIL in that property is deemed to be vested in Emirates Bank under this Ordinance;
where there is any other transaction or purported transaction by Emirates Bank or MEFIL on or after the appointed day in connection with, or in relation to, any property or liabilities which are property or liabilities of MEFIL 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 Emirates 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 Emirates 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 MEFIL) is or, as the case may be, is not, deemed to be vested in Emirates 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 MEFIL and Emirates 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 Emirates 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 section 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 MEFIL or Emirates Bank or any subsidiary 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 Emirates Bank to alter its memorandum and 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 MEFIL 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 Emirates Bank to pay the purchase consideration for the undertaking to MEFIL.