§ 48 — Disqualification or removal of director or executive officer of relevant financial institution

48.—(1) Despite the provisions of any other written law —(a)

a relevant financial institution must not, without the prior written consent of the Authority, permit a person to act as its executive officer; and

(b)

a relevant financial institution which is established or incorporated in Singapore must not, without the prior written consent of the Authority, permit a person to act as its director,

if the person —

(c)

has been convicted, whether in Singapore or elsewhere, of an offence committed before, on or after the date of commencement of this Part, being an offence —(i)

involving fraud or dishonesty;

(ii)

the conviction for which involved a finding that he or she had acted fraudulently or dishonestly; or

(iii)

that is specified in the Third Schedule to the Registration of Criminals Act 1949;

(d)

is an undischarged bankrupt, whether in Singapore or elsewhere;

(e)

has had an enforcement order against him or her in respect of a judgment debt returned unsatisfied in whole or in part;

(f)

has, whether in Singapore or elsewhere, entered into a compromise or scheme of arrangement with his or her creditors, being a compromise or scheme of arrangement that is still in operation;

(g)

has in force against him or her a prohibition order; or

(h)

has been a director of, or directly concerned in the management of, a regulated financial institution, whether in Singapore or elsewhere —(i)

which is being or has been wound up by a court; or

(ii)

the approval, authorisation, designation, recognition, registration or licence of which has been withdrawn, cancelled or revoked by the Authority or, in the case of a regulated financial institution in a foreign country or territory, by the regulatory authority in that foreign country or territory.

(2) Despite the provisions of any other written law, where the Authority is satisfied that a director of a relevant financial institution which is established or incorporated in Singapore, or an executive officer of a relevant financial institution —(a)

has wilfully contravened or wilfully caused the relevant financial institution to contravene any provision of this Act;

(b)

has, without reasonable excuse, failed to secure the compliance of the relevant financial institution with this Act or any other MAS scheduled Act; or

(c)

has failed to discharge any of the duties of his or her office,

the Authority may, if the Authority thinks it necessary in the public interest or for the protection of such persons as may be prescribed by regulations made under section 192 for the purposes of this subsection in relation to the relevant financial institution, by written notice to the relevant financial institution, direct the relevant financial institution to remove the director or executive officer (as the case may be) from his or her office or employment within such period as may be specified by the Authority in the notice, and the relevant financial institution must comply with the notice.

(3) Without affecting any other matter that the Authority may consider relevant, the Authority must, when determining whether a director or an executive officer of a relevant financial institution has failed to discharge the duties of his or her office for the purposes of subsection (2)(c), have regard to such criteria as may be prescribed by regulations made under section 192.

(4) Before directing a relevant financial institution to remove a person from his or her office or employment under subsection (2), the Authority must —(a)

give the relevant financial institution and the person written notice of the Authority’s intention to do so; and

(b)

in the notice mentioned in paragraph (a), call upon the relevant financial institution and the person to show cause, within such time as may be specified in the notice, why the person should not be removed.

(5) If the relevant financial institution and the person mentioned in subsection (4) —(a)

fail to show cause within the time specified under subsection (4)(b) or within such extended period of time as the Authority may allow; or

(b)

fail to show sufficient cause,

the Authority may direct the relevant financial institution to remove the person under subsection (2).

(6) Any relevant financial institution which, or any director or executive officer of a relevant financial institution who, is aggrieved by a direction of the Authority under subsection (2) may, within 30 days after receiving the direction, appeal in writing to the Minister, whose decision is final.

(7) A relevant financial institution that contravenes subsection (1) or fails to comply with a notice issued under subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $250,000 and, in the case of a continuing offence, to a further fine not exceeding $25,000 for every day or part of a day during which the offence continues after conviction.

(8) No civil or criminal liability is incurred by a relevant financial institution, or any person acting on behalf of the relevant financial institution, in respect of anything done (including any statement made) or omitted to be done with reasonable care and in good faith in the discharge or purported discharge of the obligations of the relevant financial institution under this section.

(9) In this section —“prohibition order” means —(a)

a prohibition order made under section 68(1) of the Financial Advisers Act 2001 as in force immediately before the date of commencement of section 200(1)(b) and (2) to (7) of this Act;

(b)

a prohibition order made under section 68(1) of the Financial Advisers Act 2001 as in force immediately before the date of commencement of section 200(1)(b) and (2) to (7) of this Act, and as continued by section 217(2) of this Act;

(c)

an order made under section 74(1) of the Insurance Act 1966 as in force immediately before the date of commencement of section 204(1) to (4) of this Act;

(d)

an order made under section 74(1) of the Insurance Act 1966 as in force immediately before the date of commencement of section 204(1) to (4) of this Act, and as continued by section 218(2) of this Act;

(e)

a prohibition order made under section 101A(1) of the Securities and Futures Act 2001 as in force immediately before the date of commencement of section 209(1)(a), (c) and (d), (4) to (14), (17) and (18) of this Act;

(f)

a prohibition order made under section 101A(1) of the Securities and Futures Act 2001 as in force immediately before the date of commencement of section 209(1)(a), (c) and (d), (4) to (14), (17) and (18) of this Act, and as continued by section 220(3) of this Act; or

(g)

a prohibition order made under section 7(1) of this Act;

“regulated financial institution” means a person who carries on a business, the conduct of which is regulated or authorised by the Authority or, if it is carried on in Singapore, would be regulated or authorised by the Authority;

“regulatory authority”, in relation to a foreign country or territory, means an authority of the foreign country or territory exercising any function that corresponds to a regulatory function of the Authority under this Act or any other MAS scheduled Act.

—(1) Despite the provisions of any other written law —(a)

a relevant financial institution must not, without the prior written consent of the Authority, permit a person to act as its executive officer; and

(b)

a relevant financial institution which is established or incorporated in Singapore must not, without the prior written consent of the Authority, permit a person to act as its director,

if the person —

(c)

has been convicted, whether in Singapore or elsewhere, of an offence committed before, on or after the date of commencement of this Part, being an offence —(i)

involving fraud or dishonesty;

(ii)

the conviction for which involved a finding that he or she had acted fraudulently or dishonestly; or

(iii)

that is specified in the Third Schedule to the Registration of Criminals Act 1949;

(d)

is an undischarged bankrupt, whether in Singapore or elsewhere;

(e)

has had an enforcement order against him or her in respect of a judgment debt returned unsatisfied in whole or in part;

(f)

has, whether in Singapore or elsewhere, entered into a compromise or scheme of arrangement with his or her creditors, being a compromise or scheme of arrangement that is still in operation;

(g)

has in force against him or her a prohibition order; or

(h)

has been a director of, or directly concerned in the management of, a regulated financial institution, whether in Singapore or elsewhere —(i)

which is being or has been wound up by a court; or

(ii)

the approval, authorisation, designation, recognition, registration or licence of which has been withdrawn, cancelled or revoked by the Authority or, in the case of a regulated financial institution in a foreign country or territory, by the regulatory authority in that foreign country or territory.

(2) Despite the provisions of any other written law, where the Authority is satisfied that a director of a relevant financial institution which is established or incorporated in Singapore, or an executive officer of a relevant financial institution —(a)

has wilfully contravened or wilfully caused the relevant financial institution to contravene any provision of this Act;

(b)

has, without reasonable excuse, failed to secure the compliance of the relevant financial institution with this Act or any other MAS scheduled Act; or

(c)

has failed to discharge any of the duties of his or her office,

the Authority may, if the Authority thinks it necessary in the public interest or for the protection of such persons as may be prescribed by regulations made under section 192 for the purposes of this subsection in relation to the relevant financial institution, by written notice to the relevant financial institution, direct the relevant financial institution to remove the director or executive officer (as the case may be) from his or her office or employment within such period as may be specified by the Authority in the notice, and the relevant financial institution must comply with the notice.

(3) Without affecting any other matter that the Authority may consider relevant, the Authority must, when determining whether a director or an executive officer of a relevant financial institution has failed to discharge the duties of his or her office for the purposes of subsection (2)(c), have regard to such criteria as may be prescribed by regulations made under section 192.

(4) Before directing a relevant financial institution to remove a person from his or her office or employment under subsection (2), the Authority must —(a)

give the relevant financial institution and the person written notice of the Authority’s intention to do so; and

(b)

in the notice mentioned in paragraph (a), call upon the relevant financial institution and the person to show cause, within such time as may be specified in the notice, why the person should not be removed.

(5) If the relevant financial institution and the person mentioned in subsection (4) —(a)

fail to show cause within the time specified under subsection (4)(b) or within such extended period of time as the Authority may allow; or

(b)

fail to show sufficient cause,

the Authority may direct the relevant financial institution to remove the person under subsection (2).

(6) Any relevant financial institution which, or any director or executive officer of a relevant financial institution who, is aggrieved by a direction of the Authority under subsection (2) may, within 30 days after receiving the direction, appeal in writing to the Minister, whose decision is final.

(7) A relevant financial institution that contravenes subsection (1) or fails to comply with a notice issued under subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $250,000 and, in the case of a continuing offence, to a further fine not exceeding $25,000 for every day or part of a day during which the offence continues after conviction.

(8) No civil or criminal liability is incurred by a relevant financial institution, or any person acting on behalf of the relevant financial institution, in respect of anything done (including any statement made) or omitted to be done with reasonable care and in good faith in the discharge or purported discharge of the obligations of the relevant financial institution under this section.

(9) In this section —“prohibition order” means —(a)

a prohibition order made under section 68(1) of the Financial Advisers Act 2001 as in force immediately before the date of commencement of section 200(1)(b) and (2) to (7) of this Act;

(b)

a prohibition order made under section 68(1) of the Financial Advisers Act 2001 as in force immediately before the date of commencement of section 200(1)(b) and (2) to (7) of this Act, and as continued by section 217(2) of this Act;

(c)

an order made under section 74(1) of the Insurance Act 1966 as in force immediately before the date of commencement of section 204(1) to (4) of this Act;

(d)

an order made under section 74(1) of the Insurance Act 1966 as in force immediately before the date of commencement of section 204(1) to (4) of this Act, and as continued by section 218(2) of this Act;

(e)

a prohibition order made under section 101A(1) of the Securities and Futures Act 2001 as in force immediately before the date of commencement of section 209(1)(a), (c) and (d), (4) to (14), (17) and (18) of this Act;

(f)

a prohibition order made under section 101A(1) of the Securities and Futures Act 2001 as in force immediately before the date of commencement of section 209(1)(a), (c) and (d), (4) to (14), (17) and (18) of this Act, and as continued by section 220(3) of this Act; or

(g)

a prohibition order made under section 7(1) of this Act;

“regulated financial institution” means a person who carries on a business, the conduct of which is regulated or authorised by the Authority or, if it is carried on in Singapore, would be regulated or authorised by the Authority;

“regulatory authority”, in relation to a foreign country or territory, means an authority of the foreign country or territory exercising any function that corresponds to a regulatory function of the Authority under this Act or any other MAS scheduled Act.