Anti-Money Laundering and Counter-Terrorist Financing (Financial Institutions) Ordinance/Schedules

Layout 2

Interpretation

Part 1

1. In this Ordinance—

currency (貨幣) includes a cheque and a traveller’s cheque;

document (文件) has the meaning given by section 1 of Part 1 of Schedule 1 to the Securities and Futures Ordinance (Cap. 571);

function (職能) includes power and duty;

money (金錢) means money in whatever form or currency;

money changing service (貨幣兌換服務) means a service for the exchanging of currencies that is operated in Hong Kong as a business, but does not include such a service that is operated by a person who manages a hotel if the service—

(a) is operated within the premises of the hotel primarily for the convenience of guests of the hotel; and

(b) consists solely of transactions for the purchase by that person of non-Hong Kong currencies in exchange for Hong Kong currency;

money laundering (洗錢) means an act intended to have the effect of making any property—

(a) that is the proceeds obtained from the commission of an indictable offence under the laws of Hong Kong, or of any conduct which if it had occurred in Hong Kong would constitute an indictable offence under the laws of Hong Kong; or

(b) that in whole or in part, directly or indirectly, represents such proceeds,

not to appear to be or so represent such proceeds;

money service (金錢服務) means—

(a) a money changing service; or

(b) a remittance service;

property (財產) includes—

(a) money, goods, choses in action and land, whether in Hong Kong or elsewhere; and

(b) obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as defined in paragraph (a);

record (紀錄) has the meaning given by section 1 of Part 1 of Schedule 1 to the Securities and Futures Ordinance (Cap. 571);

remittance service (匯款服務) means a service of one or more of the following that is operated in Hong Kong as a business—

(a) sending, or arranging for the sending of, money to a place outside Hong Kong;

(b) receiving, or arranging for the receipt of, money from a place outside Hong Kong;

(c) arranging for the receipt of money in a place outside Hong Kong;

Review Tribunal (覆核審裁處) means the Tribunal as defined by section 54;

terrorist financing (恐怖分子資金籌集) means—

(a) the provision or collection, by any means, directly or indirectly, of funds—

(i) with the intention that the funds be used; or

(ii) knowing that the funds will be used, in whole or in part, to commit one or more terrorist acts (whether or not the funds are actually so used); or

(b) making available funds or financial (or related) services, directly or indirectly, to or for the benefit of a person knowing that, or being reckless as to whether, the person is a terrorist or terrorist associate.

2. In the definition of terrorist financing, funds (資金), terrorist (恐怖分子), terrorist act (恐怖主義行為) and terrorist associate (與恐怖分子有聯繫者) have the meaning given by section 2(1) of the United Nations (Anti-Terrorism Measures) Ordinance (Cap. 575).

3. A person who only provides to financial institutions a message system or other support systems for transmitting funds is not, for the purposes of this Ordinance, to be regarded as a person operating a remittance service.

Part 2

1. In this Ordinance—

appointed insurance agent (獲委任保險代理人) has the meaning given by section 2(1) of the Insurance Companies Ordinance (Cap. 41);

authorized institution (認可機構) has the meaning given by section 2(1) of the Banking Ordinance (Cap. 155);

authorized insurance broker (獲授權保險經紀) has the meaning given by section 2(1) of the Insurance Companies Ordinance (Cap. 41);

authorized insurer (獲授權保險人) means an insurer authorized under the Insurance Companies Ordinance (Cap. 41);

Commissioner (關長) means the Commissioner of Customs and Excise, any Deputy Commissioner of Customs and Excise, any Assistant Commissioner of Customs and Excise or a person to whom the Commissioner of Customs and Excise has delegated any of his or her functions under section 26;

financial institution (金融機構) means—

(a) an authorized institution;

(b) a licensed corporation;

(c) an authorized insurer;

(d) an appointed insurance agent;

(e) an authorized insurance broker;

(f) a licensed money service operator; or

(g) the Postmaster General;

Insurance Authority (保險業監督) means the Insurance Authority appointed under section 4 of the Insurance Companies Ordinance (Cap. 41);

licensed corporation (持牌法團) has the meaning given by section 1 of Part 1 of Schedule 1 to the Securities and Futures Ordinance (Cap. 571);

licensed money service operator (持牌金錢服務經營者) means the holder of a licence as defined by section 24;

Monetary Authority (金融管理專員) means the Monetary Authority appointed under section 5A of the Exchange Fund Ordinance (Cap. 66);

Postmaster General (郵政署署長) means the Postmaster General of Hong Kong, and includes the deputy postmaster general and every assistant postmaster general;

relevant authority (有關當局)—

(a) in relation to an authorized institution, means the Monetary Authority;

(b) in relation to a licensed corporation, means the Securities and Futures Commission;

(c) in relation to an authorized insurer, appointed insurance agent or authorized insurance broker, means the Insurance Authority; and

(d) in relation to a licensed money service operator or to the Postmaster General, means the Commissioner;

Securities and Futures Commission (證監會) means the Securities and Futures Commission referred to in section 3(1) of the Securities and Futures Ordinance (Cap. 571).

Requirements Relating to Customer Due Diligence and Record-keeping

Part 1
Interpretation

1. Interpretation

(1) In this Schedule—

beneficial owner (實益擁有人)—

(a) in relation to a corporation—

(i) means an individual who—

(A) owns or controls, directly or indirectly, including through a trust or bearer share holding, not less than 10% of the issued share capital of the corporation;

(B) is, directly or indirectly, entitled to exercise or control the exercise of not less than 10% of the voting rights at general meetings of the corporation; or

(C) exercises ultimate control over the management of the corporation; or

(ii) if the corporation is acting on behalf of another person, means the other person;

(b) in relation to a partnership—

(i) means an individual who—

(A) is entitled to or controls, directly or indirectly, not less than a 10% share of the capital or profits of the partnership;

(B) is, directly or indirectly, entitled to exercise or control the exercise of not less than 10% of the voting rights in the partnership; or

(C) exercises ultimate control over the management of the partnership; or

(ii) if the partnership is acting on behalf of another person, means the other person;

(c) in relation to a trust, means—

(i) an individual who is entitled to a vested interest in not less than 10% of the capital of the trust property, whether the interest is in possession or in remainder or reversion and whether it is defeasible or not;

(ii) the settlor of the trust;

(iii) a protector or enforcer of the trust; or

(iv) an individual who has ultimate control over the trust; and

(d) in relation to a person not falling within paragraph (a), (b) or (c)—

(i) means an individual who ultimately owns or controls the person; or

(ii) if the person is acting on behalf of another person, means the other person;

business relationship (業務關係), as between a person and a financial institution, means a business, professional or commercial relationship—

(a) that has an element of duration; or

(b) that the financial institution, at the time the person first contacts the financial institution in the person’s capacity as a potential customer of the financial institution, expects to have an element of duration;

correspondent banking (代理銀行服務) means the provision of banking services by an authorized institution to another institution to enable the latter to provide services and products to its own customers;

customer due diligence measures (客戶盡職審查措施) means the measures set out in section 2(1) of this Schedule;

equivalent jurisdiction (對等司法管轄區) means—

(a) a jurisdiction that is a member of the Financial Action Task Force, other than Hong Kong; or

(b) a jurisdiction that imposes requirements similar to those imposed under this Schedule;

Financial Action Task Force (財務特別行動組織) means the Financial Action Task Force on Money Laundering established by the G-7 Summit held in Paris in 1989;

identification document (識別文件)—

(a) in relation to an individual, means his or her identity card, certificate of identity, document of identity or travel document, as defined by section 2(1) of the Immigration Ordinance (Cap. 115);

(b) in relation to a company as defined by section 2(1) of the Companies Ordinance (Cap. 32), means its certificate of incorporation issued under that Ordinance;

(c) in relation to a non-Hong Kong company as defined by section 2(1) of the Companies Ordinance (Cap. 32), means its certificate of registration issued under that Ordinance;

(d) in relation to a corporation that is incorporated in a place outside Hong Kong other than a company falling within paragraph (c), means its certificate of incorporation or registration, or any other document evidencing its incorporation, issued by an authority in that place that performs functions similar to those of the Registrar of Companies;

(e) in relation to a partnership that carries on business in Hong Kong, means its business registration certificate issued under section 6 of the Business Registration Ordinance (Cap. 310); and

(f) in relation to a partnership that does not carry on business in Hong Kong, means its partnership agreement or any document evidencing its formation or registration issued by a governmental body;

legal person (法人) includes any public body and any body of persons, corporate or unincorporate;

occasional transaction (非經常交易) means a transaction between a financial institution and a customer who does not have a business relationship with the financial institution;

politically exposed person (政治人物) means—

(a) an individual who is or has been entrusted with a prominent public function in a place outside the People’s Republic of China and—

(i) includes a head of state, head of government, senior politician, senior government, judicial or military official, senior executive of a state-owned corporation and an important political party official; but

(ii) does not include a middle-ranking or more junior official of any of the categories mentioned in subparagraph (i);

(b) a spouse, a partner, a child or a parent of an individual falling within paragraph (a), or a spouse or a partner of a child of such an individual; or

(c) a close associate of an individual falling within paragraph (a);

pre-existing customer (先前客戶), in relation to a financial institution, means a customer with whom the financial institution has established a business relationship before the date of commencement of this Ordinance;

public body (公共機構) includes—

(a) any executive, legislative, municipal or urban council;

(b) any Government department or undertaking;

(c) any local or public authority or undertaking;

(d) any board, commission, committee or other body, whether paid or unpaid, appointed by the Chief Executive or the Government; and

(e) any board, commission, committee or other body that has power to act in a public capacity under or for the purposes of any enactment.

(2) For the purposes of paragraph (b) of the definition of politically exposed person in subsection (1), a person is a partner of an individual if the person is considered by the law of the place where the person and the individual live together as equivalent to a spouse of the individual.

(3) For the purposes of paragraph (c) of the definition of politically exposed person in subsection (1), a person is a close associate of an individual if the person is—

(a) an individual who has close business relations with the first-mentioned individual, including an individual who is a beneficial owner of a legal person or trust of which the first-mentioned individual is also a beneficial owner; or

(b) an individual who is the beneficial owner of a legal person or trust that is set up for the benefit of the first-mentioned individual.

(4) For the purposes of this Schedule, a wire transfer is a transaction carried out by an institution (referred to in this Schedule as ordering institution) on behalf of a person by electronic means with a view to making an amount of money available to that person or another person (referred to in this Schedule as recipient) at an institution (referred to in this Schedule as beneficiary institution), which may be the ordering institution or another institution, whether or not one or more other institutions (referred to in this Schedule as intermediary institutions) participate in completion of the transfer of the money.

Part 2
Customer Due Diligence Requirements

Division 1
General

2. What are customer due diligence measures

(1) The following measures are customer due diligence measures applicable to a financial institution—

(a) identifying the customer and verifying the customer’s identity on the basis of documents, data or information provided by—

(i) a governmental body;

(ii) the relevant authority or any other relevant authority;

(iii) an authority in a place outside Hong Kong that performs functions similar to those of the relevant authority or any other relevant authority; or

(iv) any other reliable and independent source that is recognized by the relevant authority;

(b) if there is a beneficial owner in relation to the customer, identifying the beneficial owner and, subject to subsection (2), taking reasonable measures to verify the beneficial owner’s identity so that the financial institution is satisfied that it knows who the beneficial owner is, including, where the customer is a legal person or trust, measures to enable the financial institution to understand the ownership and control structure of the legal person or trust;

(c) if a business relationship is to be established, obtaining information on the purpose and intended nature of the business relationship with the financial institution, unless the purpose and intended nature are obvious; and

(d) if a person purports to act on behalf of the customer—

(i) identifying the person and taking reasonable measures to verify the person’s identity on the basis of documents, data or information provided by—

(A) a governmental body;

(B) the relevant authority or any other relevant authority;

(C) an authority in a place outside Hong Kong that performs functions similar to those of the relevant authority or any other relevant authority; or

(D) any other reliable and independent source that is recognized by the relevant authority; and

(ii) verifying the person’s authority to act on behalf of the customer.

(2) Except where a situation referred to in section 15 of this Schedule exists, if an individual is a beneficial owner of a customer by virtue of paragraph (a)(i)(A) or (B), (b)(i)(A) or (B) or (c)(i) of the definition of beneficial owner in section 1(1) of this Schedule, the financial institution is not required to verify the identity of the individual unless—

(a) for an individual falling within paragraph (a)(i)(A) of that definition, the individual owns or controls, directly or indirectly, including through a trust or bearer share holding, not less than 25% of the issued share capital of the relevant corporation;

(b) for an individual falling within paragraph (a)(i)(B) of that definition, the individual is, directly or indirectly, entitled to exercise or control the exercise of not less than 25% of the voting rights at general meetings of the relevant corporation;

(c) for an individual falling within paragraph (b)(i)(A) of that definition, the individual is entitled to or controls, directly or indirectly, not less than a 25% share of the capital or profits of the relevant partnership;

(d) for an individual falling within paragraph (b)(i)(B) of that definition, the individual is, directly or indirectly, entitled to exercise or control the exercise of not less than 25% of the voting rights in the relevant partnership; or

(e) for an individual falling within paragraph (c)(i) of that definition, the individual is entitled to a vested interest in not less than 25% of the capital of the relevant trust property, whether the interest is in possession or in remainder or reversion and whether it is defeasible or not.

3. When customer due diligence measures must be carried out

(1) Subject to section 4 of this Schedule, a financial institution must carry out customer due diligence measures in relation to a customer in the following circumstances—

(a) subject to subsection (2), before establishing a business relationship with the customer;

(b) before carrying out for the customer an occasional transaction involving an amount equal to or above $120,000 or an equivalent amount in any other currency, whether the transaction is carried out in a single operation or in several operations that appear to the financial institution to be linked;

(c) despite paragraph (b), before carrying out for the customer an occasional transaction that is a wire transfer involving an amount equal to or above $8,000 or an equivalent amount in any other currency, whether the transaction is carried out in a single operation or in several operations that appear to the financial institution to be linked;

(d) when the financial institution suspects that the customer or the customer’s account is involved in money laundering or terrorist financing;

(e) when the financial institution doubts the veracity or adequacy of any information previously obtained for the purpose of identifying the customer or for the purpose of verifying the customer’s identity.

(2) Despite subsection (1)(a), a financial institution may verify the identity of a customer and any beneficial owner of the customer after establishing a business relationship with the customer if—

(a) this is necessary not to interrupt the normal conduct of business with regard to the customer; and

(b) any risk of money laundering or terrorist financing that may be caused by carrying out the verification after establishing the business relationship is effectively managed.

(3) A financial institution that carries out verification after establishing a business relationship with a customer under subsection (2) must complete the verification as soon as reasonably practicable after establishing the business relationship.

(4) If a financial institution is unable to comply with subsection (1) or (3), it—

(a) must not establish a business relationship or carry out any occasional transaction with that customer; or

(b) if it has already established a business relationship with that customer, must terminate the business relationship as soon as reasonably practicable.

4. Simplified customer due diligence

(1) In any of the circumstances set out in section 3(1)(a), (b) and (c) of this Schedule, a financial institution may, instead of carrying out all the customer due diligence measures, carry out only the measures set out in section 2(1)(a), (c) and (d) of this Schedule in relation to a customer if it has reasonable grounds to believe that the customer falls within subsection (3).

(2) If a customer of a financial institution not falling within subsection (3) has in its beneficial ownership chain an entity that falls within that subsection, the financial institution is not required, when carrying out the measure set out in section 2(1)(b) of this Schedule in respect of the beneficial owners in that chain in any of the circumstances set out in section 3(1)(a), (b) and (c) of this Schedule, to identify, or verify the identities of, the beneficial owners of that entity or of any person in that chain beyond that entity.

(3) The customer is—

(a) a financial institution;

(b) an institution that—

(i) is incorporated or established in an equivalent jurisdiction;

(ii) carries on a business similar to that carried on by a financial institution;

(iii) has measures in place to ensure compliance with requirements similar to those imposed under this Schedule; and

(iv) is supervised for compliance with those requirements by an authority in that jurisdiction that performs functions similar to those of any of the relevant authorities;

(c) a corporation listed on any stock exchange;

(d) an investment vehicle where the person responsible for carrying out measures that are similar to the customer due diligence measures in relation to all the investors of the investment vehicle is—

(i) a financial institution;

(ii) an institution that—

(A) is incorporated or established in Hong Kong;

(B) has measures in place to ensure compliance with requirements similar to those imposed under this Schedule; and

(C) is supervised for compliance with those requirements; or

(iii) an institution that—

(A) is incorporated or established in an equivalent jurisdiction;

(B) has measures in place to ensure compliance with requirements similar to those imposed under this Schedule; and

(C) is supervised for compliance with those requirements;

(e) the Government or any public body in Hong Kong; or

(f) the government of an equivalent jurisdiction or a body in an equivalent jurisdiction that performs functions similar to those of a public body.

(4) In any of the circumstances set out in section 3(1)(a), (b) and (c) of this Schedule, a financial institution may, instead of carrying out all the customer due diligence measures, carry out only the measures set out in section 2(1)(a), (c) and (d) of this Schedule in relation to a customer if it has reasonable grounds to believe that the product related to the transaction falls within subsection (5).

(5) The product is—

(a) a provident, pension, retirement or superannuation scheme (however described) that provides retirement benefits to employees, where contributions to the scheme are made by way of deduction from income from employment and the scheme rules do not permit the assignment of a member’s interest under the scheme;

(b) an insurance policy for the purposes of a provident, pension, retirement or superannuation scheme (however described) that does not contain a surrender clause and cannot be used as a collateral; or

(c) a life insurance policy in respect of which—

(i) an annual premium of no more than $8,000 or an equivalent amount in any other currency is payable; or

(ii) a single premium of no more than $20,000 or an equivalent amount in any other currency is payable.

(6) If a customer of a financial institution is a solicitor or a firm of solicitors, the financial institution is not required, in any of the circumstances set out in section 3(1)(a), (b) and (c) of this Schedule, to carry out the measure set out in section 2(1)(b) of this Schedule in relation to an account—

(a) that is kept in the name of the customer;

(b) in which moneys or securities of the customer’s clients are mingled; and

(c) that is managed by the customer as those clients’ agent.

(7) In this section—

securities (證券) has the meaning given by section 1 of Part 1 of Schedule 1 to the Securities and Futures Ordinance (Cap. 571).

5. Duty to continuously monitor business relationships

(1) A financial institution must continuously monitor its business relationship with a customer by—

(a) reviewing from time to time documents, data and information relating to the customer that have been obtained by the financial institution for the purpose of complying with the requirements imposed under this Part to ensure that they are up-to-date and relevant;

(b) conducting appropriate scrutiny of transactions carried out for the customer to ensure that they are consistent with the financial institution’s knowledge of the customer and the customer’s business and risk profile, and with its knowledge of the source of the customer’s funds; and

(c) identifying transactions that—

(i) are complex, unusually large in amount or of an unusual pattern; and

(ii) have no apparent economic or lawful purpose,

and examining the background and purposes of those transactions and setting out its findings in writing.

(2) When a financial institution carries out its duty under subsection (1)(a) in relation to a pre-existing customer before it first carries out the customer due diligence measures in relation to the customer in accordance with the requirements under this Part, the financial institution is only required to review the documents, data and information relating to the customer that are held by it at the time it conducts the review.

(3) If—

(a) a customer of a financial institution has not been physically present for identification purposes;

(b) a customer, or a beneficial owner of a customer, of a financial institution is known to the financial institution, from publicly known information or information in its possession, to be a politically exposed person; or

(c) a customer, or a beneficial owner of a customer, of a financial institution is involved in a situation referred to in section 15 of this Schedule,

the financial institution must, in monitoring its business relationship with the customer under this section, take additional measures to compensate for any risk of money laundering or terrorist financing that may be caused by the fact that the customer or beneficial owner is a customer or beneficial owner falling within paragraph (a), (b) or (c).

6. Provisions relating to pre-existing customers

(1) In relation to a pre-existing customer who is not a customer to whom section 7 of this Schedule applies, a financial institution must, in addition to the situations specified in section 3(1)(d) and (e) of this Schedule, carry out the customer due diligence measures when—

(a) a transaction takes place with regard to the customer that—

(i) is, by virtue of the amount or nature of the transaction, unusual or suspicious; or

(ii) is not consistent with the financial institution’s knowledge of the customer or the customer’s business or risk profile, or with its knowledge of the source of the customer’s funds; or

(b) a material change occurs in the way in which the customer’s account is operated.

(2) If a financial institution is unable to comply with subsection (1), it must terminate its business relationship with the customer as soon as reasonably practicable.

7. Provisions relating to pre-existing respondent banks

(1) This section applies to a customer (referred to in this section as respondent bank) of an authorized institution—

(a) that is an institution located in a place outside Hong Kong carrying on a business similar to that carried on by an authorized institution; and

(b) with which the first-mentioned authorized institution has established a correspondent banking relationship before the date of commencement of this Ordinance.

(2) An authorized institution must terminate its correspondent banking relationship with a respondent bank on the date of commencement of this Ordinance unless—

(a) it had carried out the measures set out in section 14(1) of this Schedule in relation to the respondent bank at some time before that date and was at that time satisfied that the anti-money laundering and anti-terrorist financing controls of the respondent bank were adequate and effective;

(b) it had documented its responsibilities and the responsibilities of the respondent bank before that date; and

(c) it was satisfied at some time before that date that, in respect of those of the respondent bank’s customers who could directly operate the accounts it maintained for the respondent bank, the respondent bank—

(i) had verified the identities of those customers, and would continuously monitor its business relationships with those customers, in accordance with requirements similar to those imposed under this Schedule; and

(ii) was able to provide to it, on request, the documents, data or information obtained by the respondent bank in relation to those customers in accordance with requirements similar to those imposed under this Schedule.

Division 2
Special Requirements

8. Requirements in this Division are additional to those in sections 3 and 5 of this Schedule

In addition to complying with the requirements under sections 3 and 5 of this Schedule, a financial institution must also comply with the requirements under this Division.

9. Special requirements when customer is not physically present for identification purposes

If a customer has not been physically present for identification purposes, a financial institution must carry out at least one of the following measures—

(a) further verifying the customer’s identity on the basis of documents, data or information referred to in section 2(1)(a) of this Schedule but not previously used for the purposes of verification of the customer’s identity under that section;

(b) taking supplementary measures to verify all the information provided by the customer;

(c) ensuring that the payment or, if there is more than one payment, the first payment made in relation to the customer’s account is carried out through an account opened in the customer’s name with—

(i) an authorized institution; or

(ii) an institution that—

(A) is incorporated or established in an equivalent jurisdiction;

(B) carries on a business similar to that carried on by an authorized institution;

(C) has measures in place to ensure compliance with requirements similar to those imposed under this Schedule; and

(D) is supervised for compliance with those requirements by authorities in that jurisdiction that perform functions similar to those of the Monetary Authority.

10. Special requirements when customer is politically exposed person

(1) If a financial institution knows, from publicly known information or information in its possession, that a customer or a beneficial owner of a customer is a politically exposed person, it must, before establishing a business relationship with the customer—

(a) obtain approval from its senior management; and

(b) take reasonable measures to establish the customer’s or beneficial owner’s source of wealth and the source of the funds that will be involved in the proposed business relationship.

(2) If a financial institution comes to know, from publicly known information or information in its possession, that an existing customer or a beneficial owner of an existing customer is a politically exposed person or has become a politically exposed person, it must not continue its business relationship with the customer unless it—

(a) has obtained approval from its senior management; and

(b) has taken reasonable measures to establish the customer’s or beneficial owner’s source of wealth and the source of the funds that are involved in the business relationship.

11. Special requirements for insurance policies

(1) A financial institution must, whenever a beneficiary or a new beneficiary is identified or designated by the policy holder of an insurance policy—

(a) if the beneficiary is identified by name, record the name of the beneficiary;

(b) if the beneficiary is designated by description or other means, obtain sufficient information about the beneficiary to satisfy itself that it will be able to establish the identity of the beneficiary—

(i) at the time the beneficiary exercises a right vested in the beneficiary under the insurance policy; or

(ii) at the time of payout or, if there is more than one payout, the time of the first payout to the beneficiary in accordance with the terms of the insurance policy,

whichever is the earlier.

(2) A financial institution must carry out the measures specified in subsection (3)—

(a) at the time a beneficiary exercises a right vested in the beneficiary under an insurance policy; or

(b) at the time of payout or, if there is more than one payout, the time of the first payout to a beneficiary in accordance with the terms of an insurance policy,

whichever is the earlier.

(3) The specified measures are—

(a) verifying the beneficiary’s identity on the basis of documents, data or information provided by—

(i) a governmental body;

(ii) the relevant authority or any other relevant authority;

(iii) an authority in a place outside Hong Kong that performs functions similar to those of the relevant authority or any other relevant authority; or

(iv) any other reliable and independent source that is recognized by the relevant authority; and

(b) where the beneficiary is a legal person or trust—

(i) identifying its beneficial owners; and

(ii) if there is a high risk of money laundering or terrorist financing having regard to the particular circumstances of the beneficial owners, taking reasonable measures to verify the beneficial owners’ identities so that the financial institution knows who the beneficial owners are.

12. Special requirements for wire transfers

(1) Subject to subsection (2), this section applies to a wire transfer involving an amount equal to or above $8,000 or an equivalent amount in any other currency, that is carried out by a financial institution.

(2) This section does not apply to the following wire transfers—

(a) a wire transfer between two financial institutions if each of them acts on its own behalf;

(b) a wire transfer between a financial institution and a foreign institution if each of them acts on its own behalf;

(c) a wire transfer if—

(i) it arises from a transaction that is carried out using a credit card or debit card (such as withdrawing money from a bank account through an automated teller machine with a debit card, obtaining a cash advance on a credit card, or paying for goods or services with a credit or debit card), except when the card is used to effect a transfer of money; and

(ii) the credit card or debit card number is included in the message or payment form accompanying the transfer.

(3) Before carrying out a wire transfer, a financial institution that is an ordering institution must record—

(a) the originator’s name;

(b) the number of the originator’s account maintained with the financial institution and from which the money for the wire transfer is paid or, in the absence of such an account, a unique reference number assigned to the wire transfer by the financial institution; and

(c) the originator’s address or, in the absence of an address, the originator’s customer identification number or identification document number or, if the originator is an individual, the originator’s date and place of birth.

(4) The information mentioned in subsection (3)(a) and (c) must, before it is recorded, be verified by the financial institution on the basis of documents, data or information provided by—

(a) a governmental body;

(b) the relevant authority or any other relevant authority;

(c) an authority in a place outside Hong Kong that performs functions similar to those of the relevant authority or any other relevant authority; or

(d) any other reliable and independent source that is recognized by the relevant authority.

(5) Subject to subsections (6) and (7), a financial institution that is an ordering institution must include in the message or payment form accompanying the wire transfer the information recorded under subsection (3) in relation to the transfer.

(6) A financial institution may, in relation to a domestic wire transfer, include in the message or payment form accompanying the transfer only the information recorded under subsection (3)(b) in relation to the transfer but if it does so, it must, on the request of the financial institution to which it passes on the transfer instruction or the relevant authority, provide to that financial institution or the relevant authority the information recorded under subsection (3)(a) and (c) in relation to the transfer within 3 business days after it receives the request.

(7) If more than one individual wire transfer from a single originator is bundled in a batch file for transmission to a recipient or recipients in a place outside Hong Kong, a financial institution is not required to comply with subsection (5) in relation to each of the wire transfers if—

(a) the information recorded under subsection (3)(b) is included in the message or payment form accompanying each transfer; and

(b) the batch file contains the information recorded under subsection (3).

(8) If a financial institution acts as an intermediary institution in a wire transfer, it must transmit all of the information that it receives with the transfer to the institution to which it passes on the transfer instruction.

(9) Where a financial institution is a beneficiary institution in a domestic wire transfer—

(a) if the wire transfer is not accompanied by the information required under subsection (3)(b), it must as soon as reasonably practicable—

(i) obtain the information from the institution from which it receives the transfer instruction; and

(ii) if the information cannot be obtained, either—

(A) consider restricting or terminating its business relationship with the institution referred to in subparagraph (i); or

(B) take reasonable measures to mitigate the risk of money laundering or terrorist financing involved; or

(b) if the financial institution is aware that the accompanying information that purports to be the information required under subsection (3)(b) is incomplete or meaningless, it must as soon as reasonably practicable take reasonable measures to mitigate the risk of money laundering or terrorist financing involved.

(10) Where a financial institution is a beneficiary institution in a wire transfer that is not a domestic wire transfer—

(a) if the wire transfer is not accompanied by all of the information required under subsection (3), it must as soon as reasonably practicable—

(i) obtain the missing information from the institution from which it receives the transfer instruction; and

(ii) if the missing information cannot be obtained, either—

(A) consider restricting or terminating its business relationship with the institution referred to in subparagraph (i); or

(B) take reasonable measures to mitigate the risk of money laundering or terrorist financing involved; or

(b) if the financial institution is aware that any of the accompanying information that purports to be the information required under subsection (3) is incomplete or meaningless, it must as soon as reasonably practicable take reasonable measures to mitigate the risk of money laundering or terrorist financing involved.

(11) In this section—

business day (營業日) means any day other than—

(a) a public holiday; or

(b) a gale warning day or a black rainstorm warning day as defined by section 71(2) of the Interpretation and General Clauses Ordinance (Cap. 1);

domestic wire transfer (本地電傳轉賬) means a wire transfer in which the ordering institution and the beneficiary institution and, if one or more intermediary institutions are involved in the transfer, the intermediary institution or all the intermediary institutions are financial institutions located in Hong Kong;

foreign institution (外地機構) means an institution—

(a) that is located in a place outside Hong Kong; and

(b) that carries on a business similar to that carried on by a financial institution;

originator (匯款人), in relation to a wire transfer, means—

(a) the person from whose account with the ordering institution the money for the wire transfer is paid; or

(b) in the absence of such an account, the person who instructs the ordering institution to carry out the wire transfer.

13. Special requirements for remittance transactions

(1) This section applies to a remittance transaction, other than a wire transfer, involving an amount equal to or above $8,000 or an equivalent amount in any other currency, that is carried out by a licensed money service operator.

(2) Before carrying out a remittance transaction, a licensed money service operator must—

(a) identify the originator;

(b) verify the identity of the originator by reference to the originator’s identification document; and

(c) record—

(i) the originator’s name;

(ii) the originator’s identification document number and, if the originator’s identification document is a travel document, the place of issue of the travel document;

(iii) the originator’s address;

(iv) the currency and amount involved; and

(v) the date and time of receipt of the instructions, the recipient’s name and address and the method of delivery.

(3) In this section—

originator (匯款人), in relation to a remittance transaction carried out by a licensed money service operator, means—

(a) the person from whose account with the licensed money service operator the money for the remittance is paid; or

(b) in the absence of such an account, the person who instructs the licensed money service operator to carry out the remittance transaction;

remittance transaction (匯款交易) means a transaction for sending, or arranging for the sending of, money to a place outside Hong Kong.

14. Special requirements for correspondent banking relationships

(1) An authorized institution must, before establishing a correspondent banking relationship with an institution located in a place outside Hong Kong that carries on a business similar to that carried on by an authorized institution (referred to in this section as proposed respondent bank)—

(a) collect sufficient information about the proposed respondent bank to enable it to understand fully the nature of the proposed respondent bank’s business;

(b) determine from publicly available information the reputation of the proposed respondent bank and the quality of its supervision by authorities in that place that perform functions similar to those of the Monetary Authority; and

(c) assess the anti-money laundering and anti-terrorist financing controls of the proposed respondent bank.

(2) An authorized institution must not establish a correspondent banking relationship with a proposed respondent bank unless—

(a) it has obtained approval from its senior management;

(b) having complied with subsection (1), it is satisfied that the anti-money laundering and anti-terrorist financing controls of the proposed respondent bank are adequate and effective;

(c) it has documented its responsibilities and the responsibilities of the proposed respondent bank; and

(d) it is satisfied that, in respect of those of the proposed respondent bank’s customers who will be able to directly operate the accounts it is to maintain for the proposed respondent bank, the proposed respondent bank—

(i) will verify the identities of those customers, and will continuously monitor its business relationships with those customers, in accordance with requirements similar to those imposed under this Schedule; and

(ii) will be able to provide to it, on request, the documents, data or information obtained by the proposed respondent bank in relation to those customers in accordance with requirements similar to those imposed under this Schedule.

15. Special requirements in other high risk situations

A financial institution must, in a situation specified by the relevant authority in a notice in writing given to the financial institution and in any other situation that by its nature may present a high risk of money laundering or terrorist financing—

(a) where a business relationship is to be established—

(i) obtain approval from its senior management to establish the business relationship; and

(ii) either—

(A) take reasonable measures to establish the relevant customer’s or beneficial owner’s source of wealth and the source of the funds that will be involved in the business relationship; or

(B) take additional measures to mitigate the risk of money laundering or terrorist financing involved;

(b) where a business relationship has been established—

(i) obtain approval from its senior management to continue the business relationship;

(ii) if there is a beneficial owner in relation to the relevant customer, take reasonable measures to verify the beneficial owner’s identity so that the financial institution is satisfied that it knows who the beneficial owner is; and

(iii) either—

(A) take reasonable measures to establish the relevant customer’s or beneficial owner’s source of wealth and the source of the funds that are involved in the business relationship; or

(B) take additional measures to mitigate the risk of money laundering or terrorist financing involved; or

(c) where an occasional transaction is to be carried out, take additional measures to mitigate the risk of money laundering or terrorist financing involved.

Division 3
Prohibitions

16. Anonymous accounts etc.

A financial institution must not open, or maintain, any anonymous account or account in a fictitious name for any customer.

17. Correspondent banking relationships with shell banks

(1) An authorized institution must not establish or continue a correspondent banking relationship with a corporation that—

(a) is incorporated in a place outside Hong Kong;

(b) is authorized to carry on banking business in that place;

(c) does not have a physical presence in that place; and

(d) is not an affiliate of a corporation that—

(i) is incorporated in a particular jurisdiction;

(ii) is authorized to carry on banking business in that jurisdiction; and

(iii) has a physical presence in that jurisdiction.

(2) For the purposes of subsection (1)(c) and (d)(iii), a corporation has a physical presence in a place or jurisdiction if—

(a) the corporation carries on banking business at any premises in that place or jurisdiction; and

(b) at least one full-time employee of the corporation performs banking-related duties at those premises.

(3) For the purposes of subsection (1)(d), a corporation is an affiliate of another corporation if—

(a) the corporation is a subsidiary of the other corporation; or

(b) at least one individual who is a controller of the corporation is at the same time a controller of the other corporation.

(4) In this section—

associate (相關者), in relation to a person entitled to exercise, or control the exercise of, voting rights in relation to, or holding shares in, a corporation, means any other person in respect of whom that first-mentioned person has an agreement or arrangement, whether oral or in writing, express or implied, with respect to the acquisition, holding or disposal of shares or other interests in that corporation or under which they act together in exercising their voting rights in relation to it;

controller (控制人), in relation to a corporation, means—

(a) a person in accordance with whose directions or instructions the directors of the corporation, or of another corporation of which it is a subsidiary, are accustomed to act, but does not include any person in accordance with whose directions and instructions those directors are accustomed to act by reason only that they act on advice given by the person in his or her professional capacity; or

(b) a person who, either alone or with any associate or associates, is entitled to exercise, or control the exercise of, more than 50% of the voting rights at any general meeting of the corporation or of another corporation of which it is a subsidiary;

subsidiary (附屬公司) has the same meaning as in the Companies Ordinance (Cap. 32).

Division 4
Miscellaneous

18. Carrying out customer due diligence measures by means of intermediaries

(1) Subject to subsection (2), a financial institution may carry out any customer due diligence measure by means of an intermediary specified in subsection (3) if—

(a) the intermediary consents in writing to be the financial institution’s intermediary; and

(b) the financial institution is satisfied that the intermediary will on request provide a copy of any document, or a record of any data or information, obtained by the intermediary in the course of carrying out the customer due diligence measure without delay.

(2) A financial institution that carries out a customer due diligence measure by means of an intermediary remains liable under this Ordinance for a failure to carry out that customer due diligence measure.

(3) The specified intermediary is—

(a) any of the following persons who is able to satisfy the financial institution that they have adequate procedures in place to prevent money laundering and terrorist financing—

(i) a solicitor practising in Hong Kong;

(ii) a certified public accountant practising in Hong Kong;

(iii) a current member of The Hong Kong Institute of Chartered Secretaries practising in Hong Kong;

(iv) a trust company registered under Part VIII of the Trustee Ordinance (Cap. 29) carrying on trust business in Hong Kong;

(b) a financial institution that is an authorized institution, a licensed corporation, an authorized insurer, an appointed insurance agent or an authorized insurance broker; or

(c) a lawyer, a notary public, an auditor, a professional accountant, a trust or company service provider or a tax advisor practising in an equivalent jurisdiction, or a trust company carrying on trust business in an equivalent jurisdiction, or an institution that carries on in an equivalent jurisdiction a business similar to that carried on by a financial institution mentioned in paragraph (b), that—

(i) is required under the law of that jurisdiction to be registered or licensed or is regulated under the law of that jurisdiction;

(ii) has measures in place to ensure compliance with requirements similar to those imposed under this Schedule; and

(iii) is supervised for compliance with those requirements by an authority in that jurisdiction that performs functions similar to those of any of the relevant authorities.

(4) A financial institution that carries out a customer due diligence measure by means of an intermediary must—

(a) immediately after the intermediary has carried out that measure, obtain from the intermediary the data or information that the intermediary has obtained in the course of carrying out that measure, but nothing in this paragraph requires the financial institution to obtain at the same time from the intermediary a copy of any document, or a record of any data or information, that is obtained by the intermediary in the course of carrying out that measure; and

(b) ensure that the intermediary will, if requested by the financial institution within the period referred to in section 20(2) or (3) of this Schedule, as the case requires, provide to the financial institution a copy of any document, or a record of any data or information, obtained by the intermediary in the course of carrying out that measure as soon as reasonably practicable after receiving the request.

(5) Subsection (3)(a) expires at the end of 3 years beginning on the date of commencement of this Ordinance.

(6) Nothing in this section prevents a financial institution from carrying out a customer due diligence measure by its agent but such a financial institution remains liable under this Ordinance for a failure to carry out that customer due diligence measure.

(7) In this section—

certified public accountant (會計師) has the meaning given by section 2(1) of the Professional Accountants Ordinance (Cap. 50).

19. Financial institutions to establish procedures

(1) A financial institution must establish and maintain effective procedures for determining whether a customer or a beneficial owner of a customer is a politically exposed person.

(2) A financial institution that carries out wire transfers must establish and maintain effective procedures for identifying and handling wire transfers in relation to which section 12(5) of this Schedule has not been complied with.

(3) A financial institution must, in respect of each kind of customer, business relationship, product and transaction, establish and maintain effective procedures not inconsistent with this Ordinance for the purpose of carrying out its duties under sections 3, 4, 5, 9, 10 and 15 of this Schedule.

Part 3
Record-keeping Requirements

20. Duty to keep records

(1) A financial institution must—

(a) in relation to each transaction it carries out, keep the original or a copy of the documents, and a record of the data and information, obtained in connection with the transaction in accordance with Part 2 of this Schedule; and

(b) in relation to each of its customers, keep—

(i) the original or a copy of the documents, and a record of the data and information, obtained in the course of identifying and verifying the identity of the customer or any beneficial owner of the customer in accordance with Part 2 of this Schedule; and

(ii) the original or a copy of the files relating to the customer’s account and business correspondence with the customer and any beneficial owner of the customer.

(2) Records required to be kept under subsection (1)(a) must be kept for a period of 6 years beginning on the date on which the transaction is completed, regardless of whether the business relationship ends during that period.

(3) Records required to be kept under subsection (1)(b) must be kept throughout the continuance of the business relationship with the customer and for a period of 6 years beginning on the date on which the business relationship ends.

(4) A relevant authority may, by notice in writing to a financial institution, require the financial institution to keep the records relating to a specified transaction or customer for a period specified by the relevant authority that is longer than that referred to in subsection (2) or (3), as the case requires, if—

(a) the relevant authority is satisfied that the records are relevant to an ongoing criminal or other investigation carried out by it; or

(b) the records are relevant to any other purposes as specified by the relevant authority in the notice.

(5) A financial institution to whom a notice is given under subsection (4) must keep the relevant records for the period specified in the notice.

21. Manner in which records are to be kept

Records required to be kept under section 20 of this Schedule must be kept in the following manner—

(a) if the record consists of a document, either—

(i) the original of the document must be kept; or

(ii) a copy of the document must be kept either on microfilm or in the database of a computer; or

(b) if the record consists of data or information, a record of the data or information must be kept either on microfilm or in the database of a computer.

Part 4
Miscellaneous

22. Duties extended to branches and subsidiary undertakings outside Hong Kong

(1) A financial institution incorporated in Hong Kong must ensure that—

(a) its branches; and

(b) its subsidiary undertakings that carry on the same business as a financial institution in a place outside Hong Kong,

have procedures in place to ensure compliance with, to the extent permitted by the law of that place, requirements similar to those imposed under Parts 2 and 3 of this Schedule that are applicable to the financial institution.

(2) If the law of the place at which a branch or subsidiary undertaking of a financial institution carries on business does not permit the application of any procedures relating to any of the requirements referred to in subsection (1), the financial institution must—

(a) inform the relevant authority accordingly; and

(b) take additional measures to effectively mitigate the risk of money laundering and terrorist financing faced by the branch or subsidiary undertaking as a result of its inability to comply with the requirement.

(3) In this section—

branch (分行), in relation to a financial institution, means a branch of the financial institution outside Hong Kong at which it carries on a business similar to that carried on by the financial institution, whether or not the business of the branch is limited by the laws or regulations of the place in which the branch is situated and whether or not the branch is referred to as an agency in that place;

subsidiary undertaking (附屬企業) is to be construed in accordance with the Twenty-third Schedule to the Companies Ordinance (Cap. 32).

23. Financial institutions to prevent contravention of Part 2 or 3 of this Schedule

A financial institution must take all reasonable measures—

(a) to ensure that proper safeguards exist to prevent a contravention of any requirement under Part 2 or 3 of this Schedule; and

(b) to mitigate money laundering and terrorist financing risks.

Fees

Item	Particulars	Fee $
1.	For certifying a copy of an entry in or extract from the register	160 per copy
2.	For providing an uncertified copy of an entry in, or extract from, the register	1 per page or portion of a page
3.	For providing a certificate specified in section 28(1)(b)	160 per copy
4.	Application for the grant of a licence	3,310
	plus for each additional business premises	2,220
	plus for each person who is subject to the fit and proper person test	860
5.	Application for the renewal of a licence	790
	plus for each additional business premises	355
	plus for each person who is subject to the fit and proper person test	860
6.	Application for an approval to become a licensee’s director	860 for each person in relation to whom the application is made
7.	Application for an approval to become a licensee’s ultimate owner	860 for each person in relation to whom the application is made
8.	Application for an approval to become a licensee’s partner	860 for each person in relation to whom the application is made
9.	Application to add new business premises	2,220 for each new business premises
10.	Application to operate a money service at particular premises	2,220 for each business premises

Provisions Relating to Anti-Money Laundering and Counter-Terrorist Financing (Financial Institutions) Review Tribunal

1. Interpretation

(1) In this Schedule—

chairperson (主席) means the chairperson of the Tribunal; ordinary member (普通成員) means a member of the Tribunal other than the chairperson;

panel member (委員) means a member of the panel of persons appointed under section 2(1) of this Schedule.

(2) In this Schedule—

application for review (覆核申請), parties (各方), review (覆核), Secretary (局長), specified authority (指明當局), specified decision (指明決定) and Tribunal (審裁處) have the same meaning as in Part 6.

2. Appointment of panel

(1) The Secretary must appoint a panel of persons whom the Secretary considers suitable for appointment as ordinary members of the Tribunal and who are not public officers.

(2) Subject to subsections (4) and (5), a panel member may be appointed for any term the Secretary considers appropriate.

(3) A person whose term of appointment or reappointment as a panel member has expired may be reappointed.

(4) A panel member may resign from office by giving notice in writing to the Secretary.

(5) The Secretary may by notice in writing remove a panel member from office on the grounds of incapacity, bankruptcy, neglect of duty, conflict of interest or misconduct.

(6) To avoid doubt, section 55(3) does not require the appointment of persons to more than one panel under subsection (1).

3. Tenure of chairperson

(1) The term of appointment of a person as chairperson must not exceed 3 years.

(2) A person whose term of appointment or reappointment as chairperson has expired may be reappointed.

(3) The chairperson may resign from office by giving notice in writing to the Secretary.

(4) A notice of resignation takes effect—

(a) on the date the Secretary receives the notice; or

(b) if a later date is specified in the notice, on that later date.

(5) The Secretary may by notice in writing remove the chairperson from office—

(a) if the chairperson is no longer qualified for appointment as chairperson under section 56(2); or

(b) on the grounds of incapacity, bankruptcy, neglect of duty, conflict of interest or misconduct.

4. Appointment of ordinary members

(1) For the purpose of determining a review, the Secretary, on the recommendation of the chairperson, must appoint 2 panel members as ordinary members of the Tribunal in relation to the review.

(2) Subject to subsections (3) and (5), a panel member who is appointed as an ordinary member is appointed to act in relation to a specified review and may be reappointed after his or her term of appointment or reappointment as an ordinary member has expired.

(3) An ordinary member may resign from office by giving notice in writing to the Secretary.

(4) A notice of resignation takes effect—

(a) on the date the Secretary receives the notice; or

(b) if a later date is specified in the notice, on that later date.

(5) If an ordinary member ceases to be a panel member, he or she ceases to be an ordinary member.

5. Further provisions relating to chairperson and ordinary members

(1) If the term of appointment of the chairperson expires after proceedings for a review have begun but before the review is determined, the person may continue to act as chairperson for the purpose of the review until the review has been determined.

(2) Where there is a change in the membership of the Tribunal during the proceedings for a review, the proceedings may continue despite that change if the parties to the review so consent.

(3) If the parties do not consent, the proceedings must be discontinued but they may begin anew.

6. Procedure

(1) The chairperson must convene sittings of the Tribunal as often as necessary to enable the Tribunal to determine a review.

(2) At any time after an application for review has been received, the chairperson may give directions to the parties to the review concerning—

(a) procedural matters to be complied with by any of the parties; and

(b) the time within which those procedural matters are to be complied with.

(3) At any sitting of the Tribunal, the chairperson and 2 ordinary members must be present.

(4) The chairperson is to preside at every sitting of the Tribunal.

(5) Every question before the Tribunal is to be determined by a majority of the votes cast by the chairperson and the ordinary members, except that a question of law is to be determined by the chairperson alone.

(6) Subject to subsections (7) and (8), every sitting of the Tribunal must be held in public.

(7) If the Tribunal, on its own initiative or on the application of any of the parties to the review, determines that in the interests of justice a sitting or any part of a sitting should not be held in public, the Tribunal may hold the sitting or that part of the sitting in private.

(8) If an application is made under subsection (7) for a private sitting, any hearing of the application must be held in private.

(9) At any sitting of the Tribunal relating to a review, the parties to the review are entitled to be heard—

(a) in person, or—

(i) in the case of a corporation, through an officer or employee;

(ii) in the case of a partnership, through a partner; or

(iii) in the case of a specified authority, through a representative; and

(b) through a solicitor or counsel or, with the leave of the Tribunal, through any other person.

(10) The chairperson must prepare a record of the proceedings of every sitting of the Tribunal containing any particulars relating to the proceedings that the chairperson considers appropriate.

(11) In this section—

representative (代表)—

(a) in relation to the Monetary Authority, means a person appointed by the Financial Secretary under section 5A(3) of the Exchange Fund Ordinance (Cap. 66);

(b) in relation to the Securities and Futures Commission, means an employee of the Commission;

(c) in relation to the Insurance Authority, means a public officer employed in the Office of the Commissioner of Insurance; and

(d) in relation to the Commissioner, means a public officer employed in the Customs and Excise Department.

7. Preliminary conferences

(1) Subject to subsection (2), at any time after an application for review has been received, the chairperson may, on his or her own initiative or on the application of any party to the review, direct that a conference, to be attended by the parties or their representatives, is to be held for the purposes of—

(a) enabling the parties to prepare for the conduct of the review;

(b) assisting the Tribunal to determine issues for the purposes of the review; and

(c) generally securing the just, expeditious and economical conduct of the review.

(2) The chairperson may only give a direction under subsection (1) if the parties to the review agree to the giving of the direction.

(3) The chairperson may consider any material that has been submitted to the Tribunal in relation to the application by the parties to the review before giving a direction under subsection (1).

(4) The chairperson is to preside at a conference held in accordance with a direction given under subsection (1).

(5) At a conference held in accordance with a direction given under subsection (1), the chairperson may—

(a) give any direction that he or she considers necessary or desirable for securing the just, expeditious and economical conduct of the review; and

(b) try to get the parties to the review to make all agreements as they ought reasonably to have made in relation to the review.

(6) After a conference has been held in accordance with a direction given under subsection (1), the chairperson must report to the Tribunal on any matters relating to the conference that the chairperson considers appropriate.

8. Consent orders

(1) At any time after an application for review has been received, the Tribunal or the chairperson may make any order that the Tribunal or the chairperson is entitled to make under any provision of this Ordinance, whether or not any other requirements applicable to the making of the order have been complied with, if—

(a) the parties to the review request, and agree to, the making of the order under this section by the Tribunal or the chairperson; and

(b) the parties consent to all of the terms of the order.

(2) Despite anything in this Schedule or in Part 6, if the Tribunal or the chairperson makes an order under subsection (1), the order is to be regarded for all purposes as an order made by the Tribunal or the chairperson under the provision of this Ordinance in question and to be in compliance with the requirements otherwise applicable to the making of the order.

(3) In this section—

order (命令) includes any finding, determination and any other decision.

9. Chairperson as sole member of Tribunal

(1) If, at any time after an application for review has been made but before any sitting of the Tribunal is held to determine the review, the parties to the review by notice in writing inform the Tribunal that they have agreed that the review may be determined by the chairperson alone as the sole member of the Tribunal, the chairperson may determine the review as the sole member of the Tribunal.

(2) The chairperson may also determine an application as the sole member of the Tribunal if it is—

(a) an application made to the Tribunal under section 59(2) for the grant of an extension of the time within which an application for review may be made; or

(b) an application made to the Tribunal under section 69(2) for a stay of execution of a specified decision.

(3) If the chairperson determines a review as the sole member of the Tribunal under subsection (1) or (2), the Tribunal constituted by the chairperson as the sole member of the Tribunal is to be regarded for all purposes as the Tribunal constituted also by 2 ordinary members.

(4) After the chairperson has made any determination under subsection (2)(b) as the sole member of the Tribunal, the chairperson must report to the Tribunal—

(a) the making of the determination and the reasons for the determination; and

(b) any other matters relating to the determination that the chairperson considers appropriate.

(5) If there is an application described in subsection (2)(b) and the chairperson—

(a) is precluded by illness, absence from Hong Kong or any other cause from performing the chairperson’s functions; or

(b) considers it improper or undesirable that he or she should perform his or her functions in relation to the application,

a judge or a deputy judge of the Court of First Instance must, on appointment by the Chief Justice for the purpose, determine the application as if he or she were the chairperson duly appointed under this Ordinance, and the provisions of this Ordinance are to apply to him or her accordingly.

10. Privileges and immunities

Except as otherwise provided in this Ordinance—

(a) the Tribunal, its chairperson and ordinary members; and

(b) the parties to a review and any witness, solicitor, counsel or other person involved in a review,

have the same privileges and immunities in respect of the review as they would have if the review were civil proceedings before the Court of First Instance.