### Securities and Futures Ordinance 《證券及期貨條例》

112T. Interpretation of Division 7 of Part IVA
In this Division—
misconduct (失當行為)—(a) in relation to a director of an open-ended fund company, means negligence, default, breach of duty or breach of trust on the part of the director occurring in the course of performing duties as a director in relation to the company;
(b) in relation to an investment manager of an open-ended fund company, means negligence, default, breach of duty or breach of trust on the part of the investment manager occurring in the course of performing duties as an investment manager in relation to the company;
(c) in relation to a custodian of an open-ended fund company, means negligence, default, breach of duty or breach of trust on the part of the custodian occurring in the course of performing duties as a custodian in relation to the company;
(d) in relation to a sub-custodian of an open-ended fund company, means negligence, default, breach of duty or breach of trust on the part of the sub-custodian occurring in the course of performing duties as a sub-custodian in relation to the company; and
(e) in relation to an auditor of an open-ended fund company, means negligence, default, breach of duty or breach of trust on the part of the auditor occurring in the course of performing duties as an auditor in relation to the company;

specified officer (指明人員), in relation to an open-ended fund company, means—(a) a director of the company;
(b) an investment manager of the company;
(c) a custodian of the company;
(d) a sub-custodian of the company; or
(e) an auditor of the company.

### Securities and Futures Ordinance 《證券及期貨條例》

112U. Directors
(1) An open-ended fund company must have at least 2 directors.
(2) The first directors of an open-ended fund company are the persons named as directors in— (Amended 33 of 2021 s. 6)
(a) for a company incorporated under section 112C—the incorporation form delivered to the Registrar of Companies under section 112C(1)(a); or
(b) for a re-domiciled OFC—the re-domiciliation form delivered to the Registrar of Companies under section 112ZJC(1)(a). (Amended 33 of 2021 s. 6)
(3) A director of an open-ended fund company owes the open-ended fund company—
(a) the same fiduciary duties that are owed by a director of an ordinary company to the ordinary company; and
(b) the duty to exercise reasonable care, skill and diligence that is owed by a director of an ordinary company to the ordinary company under section 465 of the Companies Ordinance (Cap. 622).
(4) In the case of a breach or threatened breach by a director of an open-ended fund company of any of the director’s duties referred to in subsection (3), the director is liable to the same consequences as would apply if the director were a director of an ordinary company.
(5) In this section—
ordinary company (普通公司) means a company formed and registered under the Companies Ordinance (Cap. 622).

112V. Restrictions on body corporate being director
(1) A body corporate must not be appointed a director of an open-ended fund company.
(2) An appointment made in contravention of subsection (1) is void.
(3) However, this section does not affect any liability of a body corporate under this Ordinance for—
(a) purporting to act as a director of an open-ended fund company; or
(b) acting as a shadow director of an open-ended fund company.

112W. Minimum age for appointment as director
(1) A person must not be appointed a director of an open-ended fund company unless at the time of appointment the person has attained the age of 18 years.
(2) An appointment made in contravention of subsection (1) is void.
(3) However, this section does not affect any liability of a person below the age of 18 years under this Ordinance for—
(a) purporting to act as a director of an open-ended fund company; or
(b) acting as a shadow director of an open-ended fund company.

### Securities and Futures Ordinance 《證券及期貨條例》

112X. Provisions as to undischarged bankrupt acting as director
(1) A person who is an undischarged bankrupt must not, except with the leave of the Court of First Instance by which the person was adjudged bankrupt—
(a) act as a director of an open-ended fund company; or
(b) directly or indirectly, be concerned, or take part, in the management of an open-ended fund company.
(2) A person who contravenes subsection (1) commits an offence and is liable—
(a) on conviction on indictment to a fine of $700,000 and to imprisonment for 2 years; or
(b) on summary conviction to a fine of $150,000 and to imprisonment for 1 year.
(3) The Court of First Instance must not give leave for the purposes of this section unless a notice of the intention to apply for it has been served on the Official Receiver.
(4) If the Official Receiver is of opinion that it is contrary to the public interest that an application for leave should be granted, the Official Receiver must attend the hearing of, and oppose the granting of, the application.

112Y. Validity of acts of director
(1) The acts of a person acting as a director of an open-ended fund company are valid even though it is afterwards discovered—
(a) that there was a defect in the appointment of the person as a director;
(b) that the person was not qualified to hold office as a director or was disqualified from holding office as a director;
(c) that the person had ceased to hold office as a director; or
(d) that the person was not entitled to vote on the matter in question.
(2) Subsection (1) applies even if the appointment of the person as a director is void under section 112V or 112W.

112Z. Investment manager
(1) An open-ended fund company must have an investment manager who is responsible for managing the scheme property of the company.
(2) An investment manager of an open-ended fund company must be an intermediary licensed or registered for Type 9 regulated activity.

### Securities and Futures Ordinance 《證券及期貨條例》

112ZA. Custodian
(1) An open-ended fund company must have a custodian.
(2) All the scheme property of an open-ended fund company must be entrusted to a custodian of the company for safe keeping.
(3) Despite subsection (2), any scheme property of a class or description specified by the Commission for the purposes of this subsection is not required to be entrusted to a custodian.
(4) A custodian of an open-ended fund company must take reasonable care, skill and diligence to ensure the safe keeping of the scheme property of the company that is entrusted to the custodian under subsection (2).
(5) This section does not prohibit either of the following persons from entrusting, by an agreement in writing, to another person for safe keeping any or all of the scheme property of an open-ended fund company that is entrusted to the first-mentioned person—
(a) a custodian of the company;
(b) a person to whom any scheme property of the company is entrusted for safe keeping under an agreement in writing, other than the custodian of the company.

112ZB. Auditor
An open-ended fund company must appoint an auditor for each financial year of the company.

112ZC. Provision protecting specified officer from liability void
(1) This section applies to a provision contained in—
(a) the instrument of incorporation of an open-ended fund company; or
(b) a contract, or any other instrument, made or executed by an open-ended fund company.
(2) If a provision purports to exempt a specified officer of the company from any liability that would otherwise attach to the officer in connection with the officer’s misconduct, the provision is void.
(3) If, by a provision, the company directly or indirectly provides an indemnity for a specified officer of the company against any liability attaching to the officer in connection with the officer’s misconduct, the provision is void.