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The Beneficial Ownership of Hong Kong Companies

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In my last recent “Transparency and Beneficial Ownership of Hong Kong Companies”, I raised the likelihood of a Companies (Amendment) Bill 2017 (the “Bill“) being published. 

The Bill has indeed now been published and it does aim to introduce new legislation in Hong Kong, to improve transparency in the beneficial ownership of Hong Kong incorporated companies; this is to enhance Hong Kong’s regulatory regime on combating money laundering and terrorist financing.

The Bill now requires that:

  • Applicable Companies maintain a register of Significant Controllers.
  • Applicable Companies carry out investigations, obtain information about its Significant Controllers and keep that information accurate and updated at all times.

Set out below are details of these practical changes:

Significant Controllers Register

Each Applicable Company will be required to keep and maintain a register (the “Significant Controllers Register“) for any person who has significant control over an Applicable Company (the “Significant Controllers“).

The Significant Controllers Register must contain the prescribed contents and be kept at the registered office of the Applicable Company, or at another prescribed place.

What is an “Applicable Company”

An Applicable Company is a Hong Kong incorporated company, that is NOT:

  • a listed company; or
  • a type of company, or class of companies, that is exempted from keeping and maintaining a Significant Controllers Register by regulations made by the Financial Secretary of Hong Kong.

An Applicable Company also does not include a non-Hong Kong company which has registered branches or representative offices in Hong Kong under Part 16 of the Companies Ordinance.

Who is a “Significant Controller”?

A Significant Controller means either:

a natural person or specified entity that has significant control over that company (a “Registrable Person“); or

a legal entity that is a member of and has significant control over that company (a “Registrable Legal Entity“).

What constitutes Significant Control?

A person has “significant control” over an Applicable Company if the person fulfills one or more of the following criteria:

  • the person holds, directly or indirectly, more than 25% of: either the issued shares in that company if it has a share capital; or the right or rights to share in the capital or profits of that company if it does not have a share capital;
  • the person holds, directly or indirectly, more than 25% of the voting rights in that company;
  • the person holds, directly or indirectly, the right to appoint or remove a majority of the board of directors of that company;
  • the person has the right to exercise, or actually exercises, significant influence or control over that company; or
  • the person has the right to exercise, or actually exercises, significant influence or control over the activities of a trust or a firm, not being a legal person under the relevant governing law, whose trustee(s) or member(s) meet(s) one or more of the conditions specified above.

Duties and obligations of Applicable Companies

  • Keep a Significant Controllers Register whether or not that company in fact has any Significant Controllers.
  • Carry out investigation and obtain information about its Significant Controllers.
  • Keep information on the Significant Controllers Register up to date including recording any registrable change arising from: (a) any person ceasing to be a Significant Controller; (b) any other change which results in any particulars for any person entered in the Significant Controllers Register being incorrect or incomplete; or (c) any required update on the prescribed additional matters noted in the register.
  • Notify the Registrar of Companies of the place at which the Significant Controllers Register is kept and any change in the place at which the register is kept, subject to certain exceptions.

In fulfilling those duties to investigate, obtain information and keep information updated about its Significant Controllers, each Applicable Company must give notice to the relevant persons (the “Notice“) if it knows, or has reasonable cause to believe that:

  • that person is a Significant Controller;
  • that person knows the identity of another person who is a Significant Controller; or
  • there is a registrable change with respect to that person, the details of which are required to be contained in the Significant Controllers Register.

There are certain exempt circumstances where a Notice may be not required.

Inspection of Significant Controllers Register – Not available to the general public

The following persons have the right to inspect the Significant Controllers Register and obtain copies of the Register:

  • Any Significant Controller whose name is entered in the Significant Controllers Register.
  • Any law enforcement officer of various statutory bodies including the Companies Registry, the Hong Kong Monetary Authority, the Hong Kong Police Force, the Inland Revenue Department, the Independent Commission Against Corruption, and the Securities and Futures Commission.

If an Applicable Company fails to meet the demand for inspection or for making copies by a law enforcement officer, that officer may apply to the Hong Kong Court for an order to compel the Applicable Company to do so.

Designated representative

An Applicable Company must designate at least one representative who has the required qualification, to facilitate and assist it to comply with its duties in relation to the Significant Controllers Register under the new law, including the provision of assistance to any law enforcement officer for the purposes of performing his function relating to the prevention, detection or investigation of money laundering, or terrorist financing.

Effective date

It is expected that the Bill, if passed, will come into force on the commencement date, indicated in the Bill as being 1st March 2018 .

It is unclear whether the Companies Registry will issue guidelines to help Applicable Companies comply with the new requirements after the Bill is passed, and in particular whether an Applicable Company will be given any transitional period to set up the Significant Controllers Register and to take all necessary actions required to comply with the new law after it comes into force as of the proposed commencement date.

What next?

After the Bill is passed, each Applicable Company must start to formulate compliance steps and give itself sufficient time to implement and complete these steps so that as of the proposed commencement date, it will have in place an accurate and up to date Significant Controllers Register. An Applicable Company should also at the same time establish a set of compliance rules in relation to the keeping and maintenance of the Significant Controllers Register to ensure that it will comply with its ongoing obligations under the new law to keep the Significant Controllers Register up to date at all times.

How OLN can help

  • OLN can help you create the Significant Controllers Register, advise on the compliance steps and help establish compliance rules for all ongoing compliance now need.
  • OLN is available to advise you on any questions you may have on the Bill, the proposed new law or any of the above concepts.

Please contact us for more information.

OLN Receives Improved Recognition in ALB Rankings

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OLN is delighted to have been ranked across all categories in Hong Kong and China in the 2017 Asian Legal Business (ALB) Intellectual Property rankings.

Improving on last year’s rankings, OLN is ranked in Tier 2 in Hong Kong for both Patents and Trademark/ Copyright, and maintains its ranking in Tier 3 for both categories for China.

OLN’s Intellectual Property team continues to build on its excellent reputation in providing specialist contentious and non-contentious IP advice to its local and international clients. The team has also been bolstered by Stephen Chan rejoining OLN late in 2016.

About ALB and their Rankings

Thomson Reuters Asian Legal Business magazine provides current analysis and information on law-related issues throughout the Asia region. For its rankings, the ALB conducts research based on the individual firm submissions, interviews, editorial resources and market recommendations and then rank the top firms based on the following: –

  • The volume, complexity and size of work undertaken
  • Presence across Asia and in individual jurisdictions
  • Key personnel hired and growth of the practice group
  • Key clients and new client wins
  • Firm’s viability and profile in the region
  • Year-on-Year development and momentum

Third Party Arbitration Funding given green light in Hong Kong

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On 14th June 2017 the Hong Kong Legislative Council passed the third reading of the Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Ordinance. Whilst the Ordinance has not yet come into effect, it is expected to be gazetted and become effective later this year.

This legislation will permit the legalization of the third party funding in relation to arbitration and mediation proceedings in Hong Kong and is expected to provide a considerable boost to Hong Kong’s position as an international arbitration centre.

Hong Kong has been careful to ensure that the legislative change is accompanied by relevant safeguards to protect the system from potential abuse and we believe it is a welcome development and will help Hong Kong to maintain its status as one of the world’s leading dispute resolution centres.

Clients should now be considering the use of dispute resolution clauses adopting Hong Kong arbitration in commercial contracts, given the prospect of litigation funding being available for the resolution of such disputes by arbitration as opposed to proceeding through the court system.

If you would like further information regarding this legislation or any of the issues referred to in this article, please feel free to contact our Richard Healy.

GL4: Guideline on ‘Fit and Proper’ Criteria

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The Provisional Insurance Authority ( the ‘PIA’) is already in action and has just written to the Chief Executives of all authorized insurers (‘Insurers’). The communication covers two Guidance Notes ( previously ‘GN’ and now ‘GL’). Here we will focus only on one in summarizing what the PIA had to say in their letter.

GL4: Guideline on ‘Fit and Proper’ Criteria

New section 14A of the Insurance Ordinance will be effective on 26 June 2017. Section 14A sets out a list of matters that the Insurance Authority (the “IA”) must have regard to when determining whether a person is ‘fit and proper’. This is a new section which is applicable to controllers, directors, key persons in control functions and appointed actuaries of all Insurers. GL4 sets out the minimum standard of suitability requirements for these persons.

Transitional Arrangements for Key Persons in Control Functions:

Some Insurers may currently maintain one or more control functions and certain individuals may have been responsible for one or more of these control functions prior to 26 June 2017.

The IA shall introduce the following transitional arrangements effective 26 June 2017:

  1. For individuals who are responsible for any of the control functions of an Insurer before 26 June 2017 and within the definition of ‘key persons in control functions’ (the “Appointed Individuals”), relevant Insurers are required to submit applications for the IA’s approval of their proposed appointments on 26 June 2017. Such applications must be submitted to the IA during the period from 26 June 2017 to 30 September 2017.
  2. They should be provided in the prescribed Form A1
  3. Application fees: HK$18,000 will be waived in respect of applications of the Appointed Individuals.
  4. The IA will consider and will notify the insurers of the application results as soon as practicable.

Transitional arrangements apply to the Appointed Individuals only. If an Insurer wishes to appoint an individual as a key person in any control function(s) on or after 26 June 2017, it must obtain the IA’s prior approval.

For controllers, directors and appointed actuaries of Insurers who have already been duly appointed prior to 26 June 2017 in accordance with the relevant requirements, they are not required to seek the IA’s re-approval. However, if an Appointed Individual assumes a dual role of both an appointed actuary and a key person in the actuarial function, approval will still be required.

‘Shake & Bake’ OLN Fundraiser for the Child Welfare Scheme

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OLN staff supported the Child Welfare Scheme’s ‘Shake & Bake’ fundraising event on June 1st.

Several members of staff baked a variety of delicious sweet and savoury treats for the charity lunch held at our offices. Everyone paid HK$100 donation for the buffet and all monies raised will support children in Nepal to receive a safe and effective education; thereby remaining in school longer, protected longer and with improved prospects of future employment.

At long last – transparency in the beneficial ownership of Hong Kong companies?

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Background

In October 2014, a paper entitled “Transparency and Beneficial Ownership” was published by the Financial Action Task Force (“FATF”).

Although that paper did not mention Hong Kong by name, the relevant recommendations stated were expressed to be “recognised as the global anti money laundering and counter-terrorist financial standard”.

FATF has consistently stated that there must be adequate, accurate and timely information on the beneficial ownership and control of legal persons that can be obtained or accessed by the competent authorities and attaches considerable importance to this in the ongoing and highly publicized international fight against money laundering and against other unlawful activities.

In order to achieve such a statutory regime, the Hong Kong Government now intends to amend the Companies Ordinance (Cap 622 of the Laws of Hong Kong) so as to require all Hong Kong companies to obtain and hold up to date beneficial ownership information available for public inspection.  Listed companies will be exempted from this requirement as they are already subject to other strict disclosure requirements under the Securities and Futures Ordinance.

As a result of the October 2014 FATF paper, Hong Kong’s Financial Services and Treasury Bureau (the “Bureau”) issued, in early January this year, a “Consultation Paper” to enhance the transparency of the beneficial ownership of Hong Kong companies, including requiring Hong Kong companies to maintain a register of persons with significant control (a “PSC Register”) for each company.  Such a register would be open to the general public for inspection.
 

What does beneficial ownership actually mean
Any person who satisfies one or more of the following will be affected:

(a) directly or indirectly holds more than 25% of the shares;
(b) directly or indirectly holds more than 25% of the voting rights;
(c) directly or indirectly holds the right to appoint or remove a majority of directors;
(d) otherwise has the right to exercise, or actually exercising, significant influence or control; or
(e) has the right to exercise, or actually exercises, significant influence or control over the activities of a trust or a firm whose trustees or members satisfy any of the first four conditions.
 

PSC Register
The Bureau proposes that each Hong Kong company be required to identify and keep a register of people falling into one or more the above categories.  This requirement will extend to legal entities with significant control over the company.  This is intended for individuals who exercise control through a holding company or other structures.  To enable a Hong Kong company to maintain its PSC Register, each company will be obliged to take reasonable steps to ascertain its registerable individuals and legal entities.  

Companies will also have to enter on their individual PSC Register details of an authorised person responsible for providing such information and for providing further assistance to law enforcement agencies, as and when required.  
 

Public Inspection of PSC Register
Each Hong Kong company will be required to make its PSC Register available for inspection by any shareholder without charge or by any member of the public on payment of a fee.  

A company must notify the Registrar of Companies where its PSC Register is kept, if not kept, at its registered office.
 

Timetable 
The consultation period ends on 5th March 2017.

Assuming that the Hong Kong Government does introduce legislation into the Legislative Council, it is likely that the Hong Kong Government will want to enact legislation prior to the next FATF evaluation visit to Hong Kong, which is scheduled for October and November 2018.