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Chapter: 32  COMPANIES ORDINANCE

Section Num: 161B  Version Date 13/02/2004

Particulars in accounts of loans to officers, etc.

(1) The accounts that, under this Ordinance, are to be laid before a company in general meeting shall, subject to this section, contain the following particulars of every relevant transaction entered into by the company after the commencement* of section 68 of the Companies (Amendment) Ordinance 2003 (28 of 2003)-

(a) the name of the borrower;

(b) if this subsection applies to a relevant transaction-

(i) by reason of the fact that the borrower is connected with a director of the company or of its holding company; or

(ii) where the borrower is a body corporate, by reason of the fact that a director of the company or a person connected with him has held (jointly or severally or directly or indirectly) a controlling interest therein,

the name of that director;

(c) the terms of the relevant transaction, including the amounts payable thereunder (whether in a lump sum or instalments or by way of periodical payments or otherwise), the rate of interest, if any, and the security therefor, if any;

(d) the amount outstanding on the relevant transaction, in respect of principal and interest or otherwise, at the beginning and at the end of the company's financial year and the maximum amount so outstanding during that financial year; and

(e) the amount, if any, that, having fallen due, has not been paid and the amount of any provision (within the meaning of the Tenth Schedule) made in respect of any failure or anticipated failure by the borrower to pay the whole or any part of the principal amount of the relevant transaction or any other amount owing under that transaction.

(2) In the case of relevant transactions that consist of quasi-loans or credit transactions, there may be included in the accounts of the company, in lieu of the particulars required to be included under subsection (1), a statement showing, with respect to each borrower in relation to whom particulars are required to be given under that

subsection-

(a) the name of that person;

(b) if subsection (1)(b) applies in respect of any such relevant transaction of which that person is the borrower, the name of the relevant director;

(c) the aggregate of the amounts outstanding on all such relevant transactions of which that person is the borrower, in respect of principal and interest or otherwise, at the beginning and at the end of the company's financial year; and

(d) the aggregate of the amounts, if any, that, having fallen due, have not been paid and the aggregate of the amounts of any provision (within the meaning of the Tenth Schedule) made in respect of any failure or anticipated failure by that person to pay the whole or any part of the principal amount of any such relevant transaction or any other amount owing under it.

(3) The accounts referred to in subsection (1) shall, subject to this section, contain the particulars specified in subsection (4) of every guarantee entered into and of every security provided by the company in respect of which the following conditions are satisfied-

(a) the guarantee was entered into, or the security provided, by the company in connection with a relevant transaction entered into by any person after the commencement* of section 68 of the Companies (Amendment) Ordinance 2003 (28 of 2003); and

(b) the liability of the company in respect of the guarantee or security has not been discharged before the beginning of the financial year.

(4) The particulars referred to in subsection (3) are-

(a) in respect of the relevant transaction in connection with which the guarantee is entered into or the security provided, the name of the borrower and, if subsection (3) applies to the guarantee or security-

(i) by reason of the fact that the borrower is connected with a director of the company or of its holding company; or

(ii) where the borrower is a body corporate, by reason of the fact that a director of the company or a person connected with him has held (jointly or severally or directly or indirectly) a controlling interest therein,

the name of that director;

(b) the maximum liability of the company under the guarantee or in respect of the security both at the beginning and at the end of the financial year; and

(c) any amount paid and any liability incurred by the company for the purpose of fulfilling the guarantee or discharging the security (including any loss incurred by the company by reason of the enforcement of the guarantee or security).

(5) In the case of guarantees entered into or security provided in connection with relevant transactions that consist of quasi-loans or credit transactions, there may be included in the accounts of the company, in lieu of the particulars required to be included under subsections (3) and (4), a statement showing, with respect to each borrower in relation to whom particulars are required to be given under those subsections-

(a) the name of that person;

(b) if subsection (3) applies to any such guarantee or security for a reason given in subsection (4)(a), the name of the relevant director;

(c) the maximum liability of the company, both at the beginning and at the end of the financial year, under all guarantees entered into, and in respect of all security provided, by the company in connection with all such relevant transactions of which that person is the borrower; and

(d) the aggregate of the amounts paid and of all liabilities incurred by the company for the purpose of fulfilling the guarantees or discharging the security referred to in paragraph (c) (including the aggregate of all losses incurred by the company by reason of the enforcement of such guarantees or security).

(6) As respects any transaction referred to in this subsection that is entered into after the commencement* of section 68 of the Companies (Amendment) Ordinance 2003 (28 of 2003) by a subsidiary of a company to which section 124 applies, group accounts prepared by the company under that section (or, where group accounts are not so prepared by virtue of subsection (2) of that section, the accounts of the company prepared under section 122) shall, subject to this section, contain particulars showing-

(a) the principal amount of any loan or quasi-loan made by the subsidiary to, or any credit transaction entered into by the subsidiary as creditor for, a director or other officer of the company (whether or not he was a director or other officer of the company at the time the loan, quasi-loan or credit transaction was made or entered into), and-

(i) the name of the director or officer;

(ii) the terms of the loan, quasi-loan or credit transaction,

including the amounts payable thereunder (whether in a lump sum or instalments or by way of periodical payments or otherwise), the rate of interest, if any, and the security therefor, if any;

(iii) the amount outstanding on the loan, quasi-loan or credit transaction, in respect of principal and interest or otherwise, at the beginning and at the end of the company's financial year and the maximum amount so outstanding during that financial year; and

(iv) the amount, if any, that, having fallen due, has not been paid and the amount of any provision (within the meaning of the Tenth Schedule) made in respect of any failure or anticipated failure by the director or officer to pay the whole or any part of the principal amount of the transaction in question or any other amount owing under that transaction;

and

(b) the principal amount of any loan or quasi-loan made by any person to, or any credit transaction entered into by any person as creditor for, a director or other officer of the company (whether or not he was a director or other officer of the company at the time the loan, quasi-loan or credit transaction was made or entered into) under a guarantee entered into or on a security provided by the subsidiary and in respect of which the liability of the subsidiary has not been discharged before the beginning of the company's financial year, and-

(i) the name of the director or officer;

(ii) the maximum liability of the subsidiary under the guarantee or in respect of the security both at the beginning and at the end of the financial year; and

(iii) any amount paid and any liability incurred by the subsidiary for the purpose of fulfilling the guarantee or discharging the security (including any loss incurred by the subsidiary by reason of the enforcement of the guarantee or security), being a loan, quasi-loan or credit transaction that either is made or entered into during the company's financial year or, if made or entered into before it, is outstanding at any time during that financial year.

(7) In the case of quasi-loans and credit transactions, there may be included in the accounts or group accounts of the company, in lieu of the particulars required to be included under subsection (6), a statement showing, with respect to each director or other officer in relation to whom particulars are required to be given under that subsection-

(a) the name of that person;

(b) the aggregate of the principal amounts of all quasi-loans made by the subsidiary to, and all credit transactions entered into by the subsidiary as creditor for, that person;

(c) the aggregate of the amounts outstanding on all such quasi-loans and credit transactions, in respect of principal and interest or otherwise, at the beginning and at the end of the company's financial year;

(d) the aggregate of the amounts, if any, that, having fallen due, have not been paid and the aggregate of the amounts of any provision (within the meaning of the Tenth Schedule) made in respect of any failure or anticipated failure by that person to pay the whole or any part of the principal amount of any such quasi-loan or credit transaction or any other amount owing under it;(e) the aggregate of the principal amounts of all quasi-loans made by any person to, and all credit transactions entered into by any person as creditor for, that person under all guarantees entered into and all security provided by the subsidiary and in respect of which the liability of the subsidiary has not been discharged before the beginning of the company's financial year;

(f) the maximum liability of the subsidiary, both at the beginning and at the end of the financial year, under the guarantees and security referred to in paragraph (e); and

(g) the aggregate of the amounts paid and of all liabilities incurred by the subsidiary for the purpose of fulfilling the guarantees or discharging the security referred to in paragraph (e) (including the aggregate of all losses incurred by the subsidiary by reason of the enforcement of such guarantees or security).

(8) Except as provided in subsections (9) and (10), this section shall not require the inclusion in accounts prepared by a company that is,

or is the holding company of, an authorized financial institution of particulars of-

(a) any loan or quasi-loan made by the authorized financial institution to any person;

(b) any credit transaction entered into by the authorized financial institution as creditor for any person; or

(c) any guarantee entered into or security provided by the authorized financial institution in connection with a loan or quasi-loan made to, or a credit transaction entered into for, any person, if, but only if, either of the following conditions is satisfied-

(i) the principal amount of the loan, quasi-loan or credit transaction or the amount guaranteed or secured is not greater, and the terms of the transaction in question are not more favourable, in the case of that person, than that amount or those terms that it is reasonable to expect the authorized financial institution to have offered to or in respect of a person of the same financial standing as that person but who is unconnected with the authorized financial institution; or

(ii) where the transaction in question does not fall within paragraph (i), the aggregate of the following amounts does not exceed $10000000 or an amount equivalent to 10 per cent of the paid up capital and reserves of the authorized financial institution, whichever is the

lower-

(A) the maximum amount outstanding, in respect of principal and interest or otherwise, during the financial year on all loans and quasi-loans made by the authorized financial institution to, and on all credit transactions entered into by the authorized financial institution as creditor for, that person (excluding loans, quasi-loans and credit transactions falling within paragraph (i)); and

(B) the amount representing the maximum liability of the authorized financial institution during the financial year under all guarantees entered into and in respect of all security provided by the authorized financial institution in connection with loans or quasi-loans made by any person to, or credit transactions entered into by any person as creditor for, that person (excluding guarantees and security falling within paragraph (i)).

(9) In the case of a company that is an authorized financial institution, the accounts of the company shall contain a statement showing-

(a) the aggregate of the following amounts as at the end of the financial year-

(i) the amount outstanding, in respect of principal and interest or otherwise, on every relevant transaction entered into by the company after the commencement* of section 68 of the Companies (Amendment) Ordinance 2003 (28 of 2003); and

(ii) the amount representing the maximum liability of the company under all guarantees entered into, and in respect of all security provided, by that company in connection with any relevant transaction entered into by any person after the commencement of that section; and

(b) the maximum aggregate of the amounts referred to in paragraph

(a) that obtained at any time during the financial year.

(10) In the case of a company that is the holding company of an authorized financial institution, the accounts (or, if group accounts are required to be prepared under section 124 dealing with the authorized financial institution, the group accounts) of the company shall contain a

statement showing-

(a) the aggregate of the following amounts as at the end of the financial year-

(i) the amount outstanding, in respect of principal and interest or otherwise, on every loan and quasi-loan made by the authorized financial institution to, and every credit transaction entered into by the authorized financial institution as creditor for, a director or other officer of the company (whether or not he was a director or other officer of the company at the time the loan, quasi-loan or credit transaction was made or entered into) after the commencement* of section 68 of the Companies (Amendment) Ordinance 2003 (28 of 2003); and

(ii) the amount representing the maximum liability of the authorized financial institution under all guarantees entered into, and in respect of all security provided, by that authorized financial institution in connection with any loan or quasi-loan made by any person to, or any credit transaction entered into by any person as creditor for, a director or other officer of the company (whether or not he was a director or other officer of the company at the time the loan, quasi-loan or credit transaction was made or entered into) after the commencement of that section; and

(b) the maximum aggregate of the amounts referred to in paragraph

(a) that obtained at any time during the financial year.

(11) This section shall not require the inclusion in accounts of particulars of any loan or quasi-loan made by a company or a subsidiary thereof to, or any credit transaction entered into by a company or a subsidiary thereof as creditor for, an employee of the company or subsidiary, as the case may be, if-

(a) the principal amount of the loan, quasi-loan or credit transaction does not exceed $100000;

(b) the loan, quasi-loan or credit transaction is certified by the directors of the company or subsidiary, as the case may be, to have been made or entered into in accordance with any practice adopted or about to be adopted by the company or subsidiary with respect to such transactions;

(c) the loan, quasi-loan or credit transaction is not made or entered into by the company under a guarantee from or on a security provided by a subsidiary of the company; and

(d) the loan, quasi-loan or credit transaction is not made or entered into by a subsidiary of the company under a guarantee from or on a security provided by the company or any other subsidiary of the company.

(12) If in the case of any of the accounts referred to in this section the requirements of this section are not complied with, it shall be the duty of the auditors of the company by whom the accounts are examined to include in their report thereon, so far as they are reasonably able to do so, a statement giving the required particulars.

(13) In this section and in sections 161BA, 161BB and 161C,

"company" means-

(a) a company within the meaning of section 2; or

(b) any other body corporate incorporated in Hong Kong under an Ordinance.

(14) In this section, "relevant transaction", in relation to a company, means a loan or quasi-loan made to, or a credit transaction entered into for-

(a) a person who, whether or not he was a director or other officer of the company or a director of its holding company at the time the loan, quasi-loan or credit transaction was made or entered into, is such an officer or director at any time during the financial year in respect of which the accounts are made up; or

(b) a body corporate in which a director of the company, at any time during the financial year, held (jointly or severally or directly or indirectly) a controlling interest, whether or not such controlling interest was so held at the time the loan, quasi-loan or credit transaction was made or entered into, being a loan, quasi-loan or credit transaction that either is made or entered into during that financial year or, if made or entered into before it, is outstanding at any time during that financial year.

(15) In this section, "relevant transaction", in relation to a company referred to in section 157H(8)(a) or (b), also includes a loan or quasi-loan made to, or a credit transaction entered into for-

(a) a person connected with a director of the company at any time during the financial year when the loan, quasi-loan or credit transaction is outstanding, whether or not he was such a person at the time the loan, quasi-loan or credit transaction was made or entered into;

(b) a person connected with a director of the company's holding company at any such time, whether or not he was such a person at the time the loan, quasi-loan or credit transaction was made or entered into; or

(c) a body corporate in which a person referred to in paragraph (a), at any time during the financial year, held (jointly or severally or directly or indirectly) a controlling interest, whether or not such controlling interest was so held at the time the loan, quasi-loan or credit transaction was made or entered into, being a loan, quasi-loan or credit transaction that either is made or entered into during that financial year or, if made or entered into before it, is outstanding at any time during that financial year.

(16) For the purposes of this section, a person is connected with a director of a company if, but only if, he is-

(a) that director's spouse, child or step-child;

(b) a person acting in his capacity as the trustee (other than as trustee under an employees' share scheme or a pension scheme) of any trust the beneficiaries of which include the director, his spouse or any of his children or step-children or the terms of which confer a power on the trustees that may be exercised for the benefit of the director, his spouse or any of his children or step-children; or

(c) a person acting in his capacity as partner of that director or of any person who by virtue of paragraph (a) or (b) is connected with that director, and in this subsection a reference to the child or step-child of any person shall include a reference to any illegitimate child of that person, but shall not include a reference to any person who has attained the age of 18 years.

(17) References in subsections (6), (7) and (11) to a subsidiary of a company shall be taken as referring to a subsidiary at the end of the company's financial year (whether or not it was a subsidiary at the date of the transaction in question).

(18) In the case of any loan made, guarantee entered into or security provided before the commencement* of section 68 of the Companies (Amendment) Ordinance 2003 (28 of 2003), the accounts for any financial year of a company shall contain in respect of-

(a) any such loan outstanding at the end of the financial year; or

(b) any such guarantee or security in respect of which the liability of the company or a subsidiary thereof has not been discharged before the beginning of the financial year, the particulars that, but for that section, would have had to be contained in the accounts under the provisions of section 161B of this Ordinance in force immediately before the commencement of that section.

(19) Unless the context otherwise requires, the terms and expressions used in this section shall be construed in accordance with sections 157H and 157HA.

(Replaced 28 of 2003 s. 68)

Note:

* Commencement date: 13 February 2004.

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