Preliminary Administration Public Funds Private Funds Managers and Administrators General Registration of a Public Fund Fee for a Certificate of Compliance Application Fees Annual Fees Objects and Reasons Legal Report

MUTUAL FUNDS ACT, 1996

PART V

General

26. (1) In addition to any other accompany requirement under this Act, every application for registration, recognition or a licence made under this Act shall be accompanied by a notice of

(a) the address of the applicant's place of business and its address for service in the Territory;

(b) the name and address of a person resident in the Territory who is authorised to represent the applicant and to accept service on its behalf; and

(c) the address of any place or places of business that the applicant may have outside the Territory.

(2) If any information contained in any of the notices required to accompany the application pursuant to subsection (1) is altered at any time thereafter, the applicant, upon being a registered public fund, a recognised private fund or a licensed manager or administrator, as the case may be, shall give in writing to the Registrar particulars of the alteration within twenty-one days after the alteration is made.

27. (1) A certificate or a licence may be granted subject to terms, conditions, certificates, restrictions or limitations as the Governor and licences, or the Minister, as the case may be, sees fit to specify therein.

(2) A certificate or a licence shall

(a) be in such form as may be directed by the Governor or the Minister, as the case may be;

(b) be admitted in all courts as prima facie evidence of the facts stated therein; and

(c) remain in force until it is cancelled.

28. (1) Where

(a) a public fund is granted registration,

(b) a private fund is granted recognition, or

(c) a person is granted a licence,

there shall be payable for the year in which such registration, recognition or licence is granted the fee set out in paragraph (A) of Part III of Schedule 2, or such other amounts as may prescribed by regulations.

(2) On or before the 31st day of March every year following the year in which registration, recognition or licence is granted there shall be payable the annual fee set out in paragraph (B) of Part III of Schedule 2 or such other amounts as may prescribed by regulations.

(3) An unpaid annual fee may be sued for by the Government by action as a civil debt and the Government may require, and the court may order, the payment of a penalty in an amount equal to the amount of the fee for late payment of the fee.

29. The Governor, in the case of a certificates or registered public fund, and the Minister, in licences. the case of a recognised private fund or a licensed manager or administrator, may, subject to sections 30 and 31, cancel a certificate or a licence, as the case may be,

(a) at the request of the holder thereof; or

(b) where the holder thereof

(i) has ceased to carry on business in or from within the Territory;

(ii) has contravened any provision of this Act, the regulations or any term, condition, restriction or limitation attached to the holder's certificate or licence, as the case may be;

(iii) has been convicted of an offence under this Act or of a criminal offence in any country or jurisdiction;

(iv) has knowingly and wilfully supplied false, misleading or inaccurate information or failed to disclose information required for the purposes of any provision of this Act or the regulations;

(v) is carrying on business in a manner detrimental to the interests of mutual funds investors or to the public interest; or

(vi) is declared bankrupt or is being wound-up or otherwise dissolved.

30. (1) Before cancelling a certificate or procedure. a licence under paragraph (b) of section 29, the Governor or the Minister, as the case may be, shall

(a) give the holder thereof notice in writing of the grounds on which he intends to do so;

(b) afford the holder an opportunity to make written representations to him within a period of thirty days after receipt of the notice; and

(c) take any such representations into consideration.

(2) Where in the exercise of his powers under section 29 (b)

(a) the Governor decides to cancel a certificate, or

(b) the Minister decides to cancel a certificate or a licence, as the case may be, he shall give notice in writing to the holder thereof of such cancellation and the reasons therefor.

31. The holder of a certificate or a licence aggrieved by the decision cancelling such certificate or licence may appeal such decision in accordance with section 33.

32. Notwithstanding any provision in existing this Act, where

(a) the Governor, in the exercise of his powers under section 11 (1) (a), refuses to grant registration, or

(b) the Minister, in the exercise of his powers

(i) under section 20 (1) refuses to grant recognition, or

(ii) under section 24 (1) refuses to grant a licence, to an existing entity, he shall give such existing entity a notice in writing of his decision and the reasons therefor and the existing entity may appeal such decision in accordance with section 33.

33. (1) An appeal under sections 20 (4), 31 or 32 shall be by

(a) way of summons to a Judge in Chambers; and

(b) serving the Governor or the Minister, as the case may be, with a notice of appeal within twenty-one days or such longer period as the judge may allow, after receipt of the notice required under sections 20 (4), 30 (2) or 32, as the case may be.

(2) The bringing of an appeal under section 31 suspends the decision appealed against pending the determination or abandonment of the appeal.

34. The Registrar shall publish in the cancellation to Gazette, in such form as he thinks fit, be published. notice of every grant or cancellation of a certificate or a licence under this Act.

35. (1) Upon the recommendation of the exemptions. Registrar, the Governor may, if he is satisfied that to do so would not be prejudicial to the public interest, direct that all or any of the provisions of this Act or the regulations shall

(a) not apply, or

(b) apply subject to such modifications as he may specify in the direction, to any person or any class of persons.

(2) A direction under this section may be

(a) subject to any conditions as the Governor may see fit to specify therein; and

(b) revoked at any time at the discretion of the Governor.

(3) Notwithstanding any provision or rule of law, a direction under this section is not a statutory instrument having legislative effect.

36. For the purpose of discharging his information duties under this Act and the regulations and and records. subject to section 38, the Registrar or any person acting under his authority, may, at all reasonable times, in writing, direct any person to whom this Act applies to

(a) furnish information, or

(b) provide access to any records, books, or other documents, relating to the business of that person being carried on under this Act which, in the opinion of the Registrar, are necessary to enable him to ascertain compliance with the provisions of this Act or the regulations.

37. (1) No liability shall be incurred by actions by the and no suit, action or proceeding shall be Registrar. brought against the Crown, any agent thereof, the Registrar or any person acting under his authority for any act done or omitted to be done in good faith

(a) in the performance or intended performance of any function or duty, or

(b) in the exercise or intended exercise of any power, under this Act or the regulations.

(2) The Registrar may bring actions and institute proceedings in his name of office for the enforcement of any provision of this Act or the regulations, or for the recovery of fees or other sums of money payable under this Act or the regulations.

38. Notwithstanding section 6,

(a) any information, material or document furnished to or filed with the Registrar by any recognised private fund is privileged and shall not be disclosed to any person except

(1) the Governor, the Minister, the Attorney General or a public officer authorised by the Governor or the Minister; or

(ii) on the order of a court of competent jurisdiction for the purpose of criminal proceedings;

(b) the Governor may direct that any specified information, material or document furnished to or filed with the Registrar by any registered public fund shall be held in confidence and shall not be disclosed to any person so long as the Governor is of the opinion that to do so is in the public interest.

39. (1) Notwithstanding any statutory certain provision or rule of law to the contrary

(a) a public fund that is registered or a private fund that is recognised under this Act, and

(b) an investor in any such registered public fund or recognised private fund who is not ordinarily resident or domiciled in the Territory,

are in all respects exempt from any and all of the provisions of the Income Tax Act, the Cap. 67 Stamps Act, and the Registration and Records Act.

(2) Notwithstanding the provisions of Cap. 285 Part IX (section 235A) of the Companies Act, a company that is incorporated outside the Territory which establishes a place of business within the Territory to carry on business in accordance with the provisions of this Act as

(a) a registered public fund,

(b) a recognised private fund, or

(c) a licensed manager or administrator,

is exempt from the provisions of that Part IX (section 235A) of the Companies Act.

40. (1) A person who,

(a) wilfully makes a misrepresentation in any document required to be filed, furnished or delivered under this Act or the regulations,

(b) wilfully makes any statement or gives any information required for the purposes of this Act or the regulations that he knows to be false or misleading,

(c) knowingly fails to disclose any fact or information required to be disclosed for the purposes of this Act or the regulations, or

(d) being in charge of or having possession of or control over any information, records, books or other documents referred to in section 36, refuses or wilfully neglects to comply with any lawful direction given under that section,

commits an offence under this Act and is liable on summary conviction to a fine of not less than five thousand dollars and not more than fifty thousand dollars or to imprisonment for a period not exceeding two years or both such fine and imprisonment.

(2) Any person who, without reasonable cause, contravenes a provision of this Act or the regulations for which no penalty is provided commits an offence against this Act and is liable on summary conviction,

(a) in the case of a body corporate or unincorporated, a fine of not more than fifty thousand dollars; and

(b) in the case of an individual,

to a fine of not more than five thousand dollars or to imprisonment for a period not exceeding one month or to both such fine and imprisonment.

(3) A prosecution for an offence under this Act may be commenced within five years from the date of the commission of the offence but not thereafter.

41. The Minister may by Notice published in the Gazette, vary the Schedule. (a) vary the form of Schedule 1 provided such variation does not, in any material respect, change the substance of the Schedule; or

(b) subject to the affirmative resolution procedure of the Legislative Council modify, delete, repeal or replace any Schedule to this Act in whole or in part.

42. The Governor may make regulations

(a) prescribing fees payable under this Act;

(b) prescribing forms for use under this Act;

(c) prescribing criteria with respect to exemptions authorised by this Act;

(d) prohibiting the use of any names or any words or expressions in a name with respect to mutual funds;

(e) designating mutual funds or a class or classes thereof as private mutual funds;

(f) authorising the Registrar to require that any document, statement, report, certificate, release, agreement, or other information be filed with, furnished or delivered to him;

(g) defining, for the purposes of this Act, terms or expressions used in this Act that are not defined in this Act;

(h) prescribing any matter required to be or which may be prescribed under this Act;

(i) authorising the Registrar to issue directives and policy guidelines for the purposes of this Act or regulations; and

(j) generally for the better administration of this Act and for carrying the intent and purpose of its provisions into effect.

43. Any person who, at the date of the coming into force of this Act, is carrying on any business or engaged in any activity relating in any respect, directly or indirectly to mutual funds in or from within the Territory, shall within three months or such longer period as may be granted by the Governor from such date of coming into force comply with the provisions of this Act.