Securities and Futures Act 2001 - Singapore Statutes Online

Subdivision (1A) — Offers of units in and recognition of
business trusts

Requirement for registration or recognition

239C.—(1) A person must not make an offer of units or derivatives of units in a business trust unless the business trust is a registered business trust or a recognised business trust.

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(2) Any person who contravenes subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $150,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a continuing offence, to a further fine not exceeding $15,000 for every day or part of a day during which the offence continues after conviction.

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Power of Authority to recognise business trusts constituted outside Singapore

239D.—(1) The Authority may, upon an application made to it in such form and manner as may be prescribed and subject to subsection (2), recognise a business trust constituted outside Singapore.

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(2) The Authority may recognise a business trust under subsection (1) if and only if the Authority is satisfied that —

(a)	the laws and practices of the jurisdiction under which the business trust is constituted and regulated affords to investors in Singapore protection at least equivalent to that provided to them under the Business Trusts Act 2004 in the case of registered business trusts;
(b)	the business trust satisfies such criteria as may be prescribed by regulations made under section 341; and
(c)	the person making the offer of, or the issuer of, units or derivatives of units in the business trust, or the trustee‑manager of the business trust, satisfies such criteria as may be prescribed by regulations made under section 341. [4/2017]

(3) Without affecting subsection (2), in considering whether to recognise a business trust under subsection (1), the Authority may have regard to such other factors as may be prescribed.

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(4) Without affecting subsection (2), the Authority may refuse to recognise any business trust where it appears to the Authority that it is not in the public interest to do so.

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(5) The Authority must not refuse to recognise a business trust under subsection (1) without giving the person who made the application an opportunity to be heard, except that an opportunity to be heard need not be given if the refusal is on the ground that it is not in the public interest to recognise the business trust on the basis of any of the following circumstances:

(a)

the person making the offer (being an entity), the issuer or the trustee‑manager of the business trust or the business trust itself is in the course of being wound up or otherwise dissolved, whether in Singapore or elsewhere;

(b)

the person making the offer (being an individual) is an undischarged bankrupt, whether in Singapore or elsewhere;

(c)

a receiver, a receiver and manager or an equivalent person has been appointed, whether in Singapore or elsewhere, in relation to or in respect of —

(i)	any property of the person making the offer (being an entity) or the issuer;
(ii)	any property of the trustee‑manager of the business trust; or
(iii)	the trust property of the business trust. [4/2017]

(6) Any person making an application under subsection (1) may, within 30 days after the person is notified that the Authority has refused to recognise that business trust constituted outside Singapore, appeal to the Minister whose decision is final.

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(7) An application made under subsection (1) must be accompanied by such information or record as the Authority may require.

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(8) The Authority may publish for public information, in such manner as it considers appropriate, particulars of any business trust that is recognised under subsection (1).

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(9) While a business trust remains a recognised business trust, each of the following persons must ensure that the criteria prescribed by regulations made under section 341 in accordance with subsection (2)(b) and (c) which are applicable to the person continue to be satisfied:

(a)	a person making an offer of units or derivatives of units in the trust;
(b)	an issuer of units or derivatives of units in the trust;
(c)	the trustee‑manager of the trust. [4/2017]

(10) The trustee‑manager of a recognised business trust must provide such information or record regarding the business trust as the Authority may, at any time, require for the proper administration of this Act.

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(11) Any person who contravenes subsection (9) or (10) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction.

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Power of Authority to impose conditions or restrictions

239E.—(1) The Authority may recognise a business trust under section 239D(1) subject to such conditions or restrictions as it thinks fit to impose on any of the following persons for the purpose of protecting investors of the business trust:

(a)	the trustee‑manager of the trust;
(b)	a person making an offer of units or derivatives of units in the trust;
(c)	an issuer of units or derivatives of units in the trust. [4/2017]

(2) Each of the persons mentioned in subsection (1) must comply with the conditions or restrictions applicable to the person.

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(3) The Authority may, at any time, by written notice to any of the persons mentioned in subsection (1), vary any condition or restriction or impose any further condition or restriction as the Authority thinks fit.

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(4) Any person who contravenes any condition or restriction applicable to the person under subsection (1) or (3) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 and, in the case of a continuing offence, to a further fine not exceeding $10,000 for every day or part of a day during which the offence continues after conviction.

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Revocation, suspension or withdrawal of recognition

239F.—(1) The Authority may revoke the recognition of a recognised business trust granted under section 239D(1) if —

(a)	the application for recognition, or any related information or record submitted to the Authority, whether at the same time as or subsequent to the application, was false or misleading in a material particular or omitted a material particular which, had it been known to the Authority at the time of submission, would have resulted in the Authority not granting the recognition;
(b)	the Authority is of the opinion that the continued recognition of the business trust is or will be against the public interest;
(c)	the Authority is of the opinion that the continued recognition of the business trust is or will be prejudicial to its unitholders or potential unitholders; or
(d)	there has been a contravention of section 239D(9) or (10) or a condition or restriction mentioned in section 239E(1) or (3). [4/2017]

(2) Where the Authority revokes the recognition of a recognised business trust under subsection (1), the Authority may issue any directions it thinks fit to any of the following persons:

(a)	a person making an offer of units or derivatives of units in the business trust;
(b)	the issuer of units or derivatives of units in the business trust;
(c)	the trustee‑manager of the business trust,

and the person must comply with such directions.

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(3) The directions mentioned in subsection (2) may include a direction that the person provides the holders of the units or derivatives of units with an option to redeem or sell back to the person their units or derivatives of units (as the case may be) on such terms as the Authority may approve.

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(4) In determining whether to issue a direction under subsection (2), the Authority must consider —

(a)

whether the trustee‑manager of the business trust is able to liquidate the property of the business trust without material adverse financial effect to the unitholders and for this purpose, the factors which the Authority may take into account include —

(i)	the liquidity of the property of the business trust;
(ii)	the penalties (if any) payable for liquidating the property; and
(iii)	where the units of the business trust are also listed for quotation or quoted on an overseas exchange, the potential impact which the liquidation may have on unitholders in the country or territory where the units are listed; and

(b)

where the units or derivatives of units in the business trust are listed for quotation on the official list of an approved exchange, whether the holders of the units or derivatives of units are afforded an opportunity to liquidate, sell or redeem their units or derivatives of units on reasonable terms in accordance with the requirements of the listing rules of the approved exchange.

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(5) A person who, without reasonable excuse, contravenes any of the directions issued by the Authority under subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $150,000 and, in the case of a continuing offence, to a further fine not exceeding $15,000 for every day or part of a day during which the offence continues after conviction.

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(6) Despite subsection (1), the Authority may, if it considers it desirable to do so, instead of revoking the recognition of a recognised business trust, suspend the recognition of that recognised business trust for a specific period, and may at any time remove such suspension.

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(7) Where the Authority revokes the recognition of a recognised business trust under subsection (1) or suspends the recognition of a recognised business trust under subsection (6), it must notify the trustee‑manager of the business trust and, where the Authority deems it necessary, the person who made the application to the Authority for recognition of the business trust under section 239D(1).

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(8) Subject to subsection (9), the Authority may, upon a written application made to it by the trustee‑manager of the business trust or the person who made the application to the Authority for recognition of a business trust under section 239D(1), in such form and manner as may be prescribed, withdraw the recognition of that recognised business trust.

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(9) The Authority may refuse to withdraw the recognition of a recognised business trust under subsection (8) where the Authority is of the opinion that —

(a)	there is any matter concerning the recognised business trust which should be investigated before the recognition is withdrawn; or
(b)	the withdrawal of the recognition would not be in the public interest. [4/2017]

(10) The Authority must not —

(a)	revoke the recognition of a recognised business trust under subsection (1) without giving the trustee‑manager of the business trust and, where the Authority deems it necessary, the person who made the application to the Authority for recognition of the business trust under section 239D(1), an opportunity to be heard;
(b)	impose a direction on a person mentioned in subsection (2) without giving that person an opportunity to be heard;
(c)	suspend the recognition of a recognised business trust under subsection (6) without giving the trustee‑manager of the business trust and, where the Authority deems it necessary, the person who made the application to the Authority for recognition of the business trust under section 239D(1), an opportunity to be heard; or
(d)	refuse the withdrawal of the recognition of a recognised business trust under subsection (9) without giving the person mentioned in subsection (8) an opportunity to be heard. [4/2017]

(11) Despite subsection (10), an opportunity to be heard need not be given for a revocation or suspension on the ground that the continued recognition of the recognised business trust is against the public interest on the basis of any of the following circumstances:

(a)

the person making the offer (being an entity), the issuer, the trustee‑manager of the recognised business trust or the recognised business trust itself, is in the course of being wound up or otherwise dissolved, whether in Singapore or elsewhere;

(b)

the person making the offer (being an individual) is an undischarged bankrupt, whether in Singapore or elsewhere;

(c)

a receiver, a receiver and manager or an equivalent person has been appointed, whether in Singapore or elsewhere, in relation to or in respect of —

(i)	any property of the person making the offer (being an entity) or the issuer;
(ii)	any property of the trustee‑manager of the recognised business trust; or
(iii)	the trust property of the recognised business trust. [4/2017]

(12) The following persons may appeal to the Minister within 30 days after being notified of the following decisions of the Authority:

(a)	where the Authority revokes the recognition of a recognised business trust under subsection (1), or suspends the recognition of a recognised business trust under subsection (6), the person or persons mentioned in subsection (7);
(b)	where the Authority has imposed a direction on a person under subsection (2), the person mentioned in subsection (2);
(c)	where the Authority refuses to withdraw the recognition of a recognised business trust under subsection (9), the person mentioned in subsection (8). [4/2017]

(13) A decision of the Minister in an appeal under subsection (12) is final.

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(14) Where the Authority revokes a recognition under subsection (1), suspends a recognition under subsection (6) or withdraws a recognition under subsection (8), it may —

(a)	impose such conditions on the revocation, suspension or withdrawal (as the case may be) as it considers appropriate; and
(b)	publish notice of the revocation, suspension or withdrawal (as the case may be), and the reason for the revocation, suspension or withdrawal (as the case may be), in such manner as it considers appropriate. [4/2017]

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