---
type: court_doc
id: "court_ctb_1409_12"
court: "CTB"
case_no: "22-50073"
doc_number: 1409
doc_type: "TRANSCRIPT"
filed_date: null
lang: "zh"
url: "https://mubeitech.com/court/court_ctb_1409_12"
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# Part XVI—Division 1 16-2 Section 378 Cap. 571 Part XVI



> 原始法庭文件为英文；下方为英文全文，顶部为中文摘要。

Part XVI—Division 1 16-2 Section 378 Cap. 571

## **Part XVI**

# **Miscellaneous**

*(Format changes—E.R. 2 of 2012)*

## **Division 1—Secrecy(general), conflict of interests, and immunity**

*(Amended 6 of 2014 s. 38)*

### **378. Preservation of secrecy, etc.**

- (1) Subject to subsection (13A), except in the performance of a function under, or for the purpose of carrying into effect or doing anything required or authorized under, any of the relevant provisions, a specified person— *(Amended 6 of 2014 s. 39)*
	- (a) shall preserve and aid in preserving secrecy with regard to any matter coming to his knowledge by virtue of his appointment under any of the relevant provisions, or in the performance of any function under or in carrying into effect any of the relevant provisions, or in the course of assisting any other person in the performance of any function under or in carrying into effect any of the relevant provisions;
	- (b) shall not communicate any such matter to any other person; and
	- (c) shall not suffer or permit any other person to have access to any record or document which is in his possession by virtue of the appointment, or the performance of any such function under or the carrying into effect of any such provisions, or the assistance to the other person

| Part XVI—Division 1 | 16-4     |
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| Section 378         | Cap. 571 |
|                     |          |

in the performance of any such function under or in carrying into effect any such provisions.

- (2) Nothing in subsection (1) applies to—
	- (a) the disclosure of information which has already been made available to the public;
	- (b) the disclosure of information with a view to the institution of, or otherwise for the purposes of, any criminal proceedings, or any investigation carried out under the relevant provisions or otherwise, in Hong Kong; *(Amended 6 of 2014 s. 39)*
	- (c) the disclosure of information for the purpose of seeking advice from, or giving advice by, counsel or a solicitor or other professional adviser acting or proposing to act in a professional capacity in connection with any matter arising under any of the relevant provisions;
	- (d) the disclosure of information by a person in connection with any judicial or other proceedings to which the person is a party;
	- (e) the disclosure of information in accordance with an order of a court, or in accordance with a law or a requirement made under a law;
	- (ea) the disclosure of information to the Hong Kong Deposit Protection Board established by section 3 of the Deposit Protection Scheme Ordinance (Cap. 581) for the purpose of enabling or assisting the Board to perform its functions under section 5(a), (d) and (e) of that Ordinance; *(Added 7 of 2004 s. 55)*
		- (f) the communication of any information or opinion to which section 381(1) applies (whether with or without reference to section 381(2))—

| Part XVI—Division 1 | 16-6     |
|---------------------|----------|
| Section 378         | Cap. 571 |
|                     |          |

- (i) to the Commission in the manner described in section 381(1);
- (ii) where section 381(4) applies, to the Insurance Authority or the Monetary Authority (as the case may be) in the manner described in section 381(4).
- (3) Notwithstanding subsection (1), the Commission may disclose information—
	- (a) in the form of a summary compiled from any information in the possession of the Commission, including information provided by persons under any of the relevant provisions, if the summary is so compiled as to prevent particulars relating to the business or identity, or the trading particulars, of any person from being ascertained from it;
	- (b) to a person who is a liquidator appointed under the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32); *(Amended 28 of 2012 ss. 912 & 920)*
	- (ba) to a person who is a liquidator appointed under the OFC rules; *(Added 16 of 2016 s. 16)*
	- (c) to the Market Misconduct Tribunal;
	- (d) to the Securities and Futures Appeals Tribunal;
	- (ea) to the Anti-Money Laundering and Counter-Terrorist Financing Review Tribunal established under section 55 of the Anti-Money Laundering and Counter-Terrorist Financing Ordinance (Cap. 615); *(Added 15 of 2011 s. 90. Amended 4 of 2018 s. 45)*
	- (eb) to the Resolution Compensation Tribunal; *(Added 23 of 2016 s. 219)*
	- (ec) to the Resolvability Review Tribunal; *(Added 23 of 2016 s. 219)*

| Part XVI—Division 1 | 16-8     |
|---------------------|----------|
| Section 378         | Cap. 571 |

- (ed) to a resolution authority, for the purpose of enabling or assisting the resolution authority to perform its functions under the Financial Institutions (Resolution) Ordinance (Cap. 628); *(Added 23 of 2016 s. 219. Amended E.R. 2 of 2017)*
	- (e) to the Monetary Authority, if—
		- (i) the information relates to—
			- (A) any business of a registered institution which constitutes a regulated activity for which the registered institution is registered; or
			- (B) any business of an associated entity that is an authorized financial institution, which is that of receiving or holding client assets of the intermediary of which the associated entity is an associated entity; or
		- (ii) in the opinion of the Commission the condition specified in subsection (5) is satisfied;
	- (f) if in the opinion of the Commission the condition specified in subsection (5) is satisfied, to—
		- (i) the Chief Executive;
		- (ii) the Financial Secretary;
		- (iii) the Secretary for Justice;
		- (iv) *(Repealed L.N. 106 of 2002)*;
		- (v) the Insurance Authority;
		- (vi) the Registrar of Companies;
		- (vii) the Official Receiver;
		- (viii) the Mandatory Provident Fund Schemes Authority;
			- (ix) the Privacy Commissioner for Personal Data;
			- (x) the Ombudsman;

| Part XVI—Division 1 | 16-10                                                                                                                                                                                                          |
|---------------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| Section 378         | Cap. 571                                                                                                                                                                                                       |
| (xi)                | a<br>public<br>officer<br>authorized<br>by<br>the<br>Financial<br>Secretary under subsection (12);                                                                                                             |
| (xia)               | the Accounting and Financial Reporting Council<br>continued under section 6 of the Accounting and<br>Financial Reporting Council Ordinance (Cap. 588);<br>(Added 18 of 2006 s. 86. Amended L.N. 66 of<br>2022) |
| (xii)               | an inspector appointed by the Financial Secretary<br>to investigate the affairs of a corporation;                                                                                                              |
| (xiii)              | a recognized exchange company;                                                                                                                                                                                 |
| (xiv)               | a recognized clearing house;                                                                                                                                                                                   |
| (xv)                | a recognized exchange controller;                                                                                                                                                                              |
| (xvi)               | a recognized investor compensation company;                                                                                                                                                                    |
| (xvii)              | a<br>person<br>authorized<br>to<br>provide<br>authorized<br>automated trading services under section 95(2);                                                                                                    |
| (g)<br>if<br>in     | the<br>opinion<br>of<br>the<br>Commission<br>the<br>condition<br>specified in subsection (5) is satisfied—                                                                                                     |
| (i)                 | to an authority or regulatory organization outside<br>Hong Kong which, or to a companies inspector<br>outside Hong Kong who, in the opinion of the                                                             |

(ii) to any body prescribed by rules made under section 397 for the purposes of this subparagraph, with a view to its taking of, or otherwise for the purposes of, any disciplinary action against any of its members or regulatees; *(Replaced L.N. 66 of 2022)*

Commission satisfies the requirements referred to

(ga) to an authority in a place outside Hong Kong, if—

in subsection (6)(a) and (b);

| Part XVI—Division 1 | 16-12    |
|---------------------|----------|
| Section 378         | Cap. 571 |
|                     |          |

- (i) that authority performs functions in that place broadly comparable to those of a resolution authority in Hong Kong; and
- (ii) in the opinion of the Commission—
	- (A) that authority is subject to adequate secrecy provisions in that place; and
	- (B) the information is necessary to enable or assist that authority to perform functions in that place broadly comparable to those of a resolution authority in Hong Kong; *(Added 23 of 2016 s. 219)*
- (h) to a person who is or was an auditor appointed under any provision of this Ordinance, for the purpose of enabling or assisting the Commission to perform its functions under any of the relevant provisions;
- (i) where the information is obtained by an investigator under section 183, to—
	- (i) the Financial Secretary;
	- (ii) the Secretary for Justice;
	- (iia) the Resolution Compensation Tribunal; *(Added 23 of 2016 s. 219)*
	- (iib) the Resolvability Review Tribunal; *(Added 23 of 2016 s. 219)*
	- (iic) a resolution authority, for the purpose of enabling or assisting the resolution authority to perform its functions under the Financial Institutions (Resolution) Ordinance (Cap. 628); *(Added 23 of 2016 s. 219. Amended E.R. 2 of 2017)*
	- (iii) the Commissioner of Police;

| Part XVI—Division 1 | 16-14    |
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| Section 378         | Cap. 571 |

- (iv) the Commissioner of the Independent Commission Against Corruption;
- (v) the Market Misconduct Tribunal;
- (vi) the Securities and Futures Appeals Tribunal;
- (j) for the purpose of, or otherwise in connection with, an audit required by section 16;
- (k) with the consent of the person from whom the information was obtained or received and, if the information relates to a different person, also with the consent of the person to whom the information relates.
- (4) Notwithstanding subsection (1), a person who is or was an auditor appointed in relation to a licensed corporation or an associated entity of a licensed corporation under section 159 or 160, and a person who is or was an employee or agent of such auditor, may disclose information obtained or received by him in the course of performing his duties as such auditor or as an employee or agent of such auditor (as the case may be)—
	- (a) for the purposes of any judicial or other proceedings arising out of the performance of his duties as such auditor or as an employee or agent of such auditor (as the case may be);
	- (b) in the case of a person who is or was an employee or agent of an auditor, to the auditor.
- (5) The condition referred to in subsection (3)(e), (f) and (g) is that—
	- (a) it is desirable or expedient that the information should be disclosed pursuant to subsection (3)(e), (f) or (g) (as the case may be) in the interest of the investing public or in the public interest; or

Part XVI—Division 1 16-16 Section 378 Cap. 571

- (b) the disclosure will enable or assist the recipient of the information to perform its or his functions and it is not contrary to the interest of the investing public or to the public interest that the information should be so disclosed.
- (6) Where the Commission is satisfied, for the purposes of subsection (3)(g)(i), that an authority, regulatory organization or companies inspector outside Hong Kong—
	- (a) performs any function similar to a function of the Commission or the Registrar of Companies, or regulates, supervises or investigates banking, insurance or other financial services or the affairs of corporations; and
	- (b) is subject to adequate secrecy provisions,

the Commission shall as soon as reasonably practicable thereafter cause the name of the authority, regulatory organization or companies inspector (as the case may be) to be published in the Gazette.

- (7) Where information is disclosed by a specified person pursuant to subsection (1), or in any of the circumstances described in subsection (2), (3) or (4) (other than subsections (2)(a), (3)(a), (g)(i), (ga) and (k) and (4)(b))— *(Amended 19 of 2015 s. 27; 23 of 2016 s. 219)*
	- (a) the person to whom that information is so disclosed; or
	- (b) any other person obtaining or receiving the information, whether directly or indirectly, from the person referred to in paragraph (a),

shall not disclose the information, or any part thereof, to any other person, unless—

- (i) the Commission consents to the disclosure;
- (ia) if the specified person is a recognized exchange company, the Commission or the recognized exchange

| Part XVI—Division 1 | 16-18    |
|---------------------|----------|
| Section 378         | Cap. 571 |

company consents to the disclosure; *(Added 19 of 2015 s. 27)*

- (ii) the information or the part thereof (as the case may be) has already been made available to the public;
- (iii) the disclosure is for the purpose of seeking advice from, or giving advice by, counsel or a solicitor or other professional adviser acting or proposing to act in a professional capacity in connection with any matter arising under any of the relevant provisions;
- (iv) the disclosure is in connection with any judicial or other proceedings to which the person or the other person referred to in paragraph (a) or (b) (as the case may be) is a party; or
- (v) the disclosure is in accordance with an order of a court, or in accordance with a law or a requirement made under a law.
- (8) Where information is disclosed to an auditor in the circumstances described in subsection (4)(b)—
	- (a) the auditor; or
	- (b) any other person obtaining or receiving the information, whether directly or indirectly, from the auditor,

shall not disclose the information, or any part thereof, to any other person, unless—

- (i) in the case of the auditor, the disclosure is for the purpose described in subsection (4)(a);
- (ii) the Commission consents to the disclosure;
- (iii) the information or the part thereof (as the case may be) has already been made available to the public;
- (iv) the disclosure is for the purpose of seeking advice from, or giving advice by, counsel or a solicitor or

| Part XVI—Division 1 | 16-20    |
|---------------------|----------|
| Section 378         | Cap. 571 |

other professional adviser acting or proposing to act in a professional capacity in connection with any matter arising under any of the relevant provisions;

- (v) the disclosure is in connection with any judicial or other proceedings to which the auditor or the other person referred to in paragraph (a) or (b) (as the case may be) is a party; or
- (vi) the disclosure is in accordance with an order of a court, or in accordance with a law or a requirement made under a law.
- (9) The Commission, in disclosing any information in any of the circumstances described in subsection (3) or in granting any consent pursuant to subsection (7)(i) or (ia) or (8)(ii), may impose such conditions as it considers appropriate. *(Amended 19 of 2015 s. 27)*
- (9A) A recognized exchange company, in granting a consent pursuant to subsection (7)(ia), may impose any condition that it considers appropriate. *(Added 19 of 2015 s. 27)*
- (10) A person who contravenes subsection (1) commits an offence and is liable—
	- (a) on conviction on indictment to a fine of \$1,000,000 and to imprisonment for 2 years; or
	- (b) on summary conviction to a fine at level 6 and to imprisonment for 6 months.
- (11) Where a person discloses any information in contravention of subsection (7) or (8) and, at the time of disclosure— *(Amended 6 of 2014 s. 39 and E.R. 2 of 2015)*
	- (a) in the case of a contravention of subsection (7), the person knew or ought reasonably to have known that the information was previously disclosed to the person or to any other person (as the case may be) pursuant to

Part XVI—Division 1 16-22

subsection (1) or in any of the circumstances described in subsection (2), (3) or (4) (other than subsections (2)(a), (3)(a), (g)(i), (ga) and (k) and (4)(b)), unless the person proves that the person had reasonable grounds to believe that subsection (7)(i), (ia), (ii), (iii), (iv) or (v) applied to the disclosure of the information by the person; or *(Amended 19 of 2015 s. 27; 23 of 2016 s. 219)*

(b) in the case of a contravention of subsection (8), the person knew or ought reasonably to have known that the information was previously disclosed to the person or an auditor (as the case may be) in the circumstances described in subsection (4)(b), unless the person proves that the person had reasonable grounds to believe that subsection (8)(i), (ii), (iii), (iv), (v) or (vi) applied to the disclosure of the information by the person,

the person commits an offence and is liable— *(Amended 6 of 2014 s. 39 and E.R. 2 of 2015)*

- (i) on conviction on indictment to a fine of \$1,000,000 and to imprisonment for 2 years; or
- (ii) on summary conviction to a fine at level 6 and to imprisonment for 6 months.
- (12) The Financial Secretary may authorize any public officer as a person to whom information may be disclosed under subsection (3)(f)(xi).
- (13) Any matter published under subsection (6) is not subsidiary legislation.
- (13A) This section does not apply to a person referred to in section 381A(1) in respect of—
	- (a) a matter that comes to the person's knowledge—
		- (i) because of a reason referred to in section 381A(2)(a)(i); or

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| Section 379         | Cap. 571 |

- (ii) as described in section 381A(2)(a)(ii) or (iii); or
- (b) a record or document that is in the person's possession because of a reason referred to in section 381A(2)(c)(i), (ii) or (iii). *(Added 6 of 2014 s. 39)*
- (14) *(Repealed 9 of 2012 s. 44)*
- (15) In this section
	- *companies inspector* (公司審查員), in relation to a place outside Hong Kong, means a person whose functions under the laws of that place include the investigation of the affairs of a corporation carrying on business in that place;

*specified person* (指明人士) means—

- (a) the Commission;
- (b) any person who is or was a member, an employee, or a consultant, agent or adviser, of the Commission; or
- (c) any person who is or was—
	- (i) a person appointed under any of the relevant provisions;
	- (ii) a person performing any function under or carrying into effect any of the relevant provisions; or
	- (iii) a person assisting any other person in the performance of any function under or in carrying into effect any of the relevant provisions.

### **379. Avoidance of conflict of interests**

(1) Subject to subsection (2), any member of the Commission or any person performing any function under any of the relevant provisions shall not directly or indirectly effect or cause to be effected, on his own account or for the benefit of any other person, a transaction regarding any securities, structured product, futures contract, leveraged foreign exchange contract,