Disclosure Requirements for Non-Hong Kong Companies – A Reminder

Introduction

The Non-Hong Kong Companies (Disclosure of Company Name, Place of Incorporation and Members’ Limited Liability) Regulation (Cap. 622M of the Laws of Hong Kong) (“Regulation”), will commence operation on 1 August 2019.  The Regulation re-enacts the existing provision of section 792 of the Companies Ordinance (Cap. 622 of the Laws of Hong Kong) (“Companies Ordinance”) which will be repealed when the Regulation comes into effect.

1. Definition of Non-Hong Kong Company

Section 2 of the Companies Ordinance defines a non-Hong Kong company as a company incorporated outside Hong Kong that establishes a place of business in Hong Kong (“Non-Hong Kong Company”).  According to the case law, a place of business is not established if a company merely instructs agents to act on its behalf in Hong Kong or a person acting on behalf of a company makes periodic visits to an occasional location to carry on business in Hong Kong.

2. A Summary of Disclosure Requirements under the Regulation

The disclosure requirements of Non-Hong Kong Companies under the Regulation are in essence similar to the provisions in section 792 of the Companies Ordinance, which are non-exhaustively summarized below: 

• Displaying continuously the company name and place of incorporation at every business venue, meaning an office or a place in Hong Kong where the company carries on its business and that is open to the public or the principal place of business of the company in Hong Kong (“Business Venue”).  The name and place of incorporation must be easily seen by any visitor to the Business Venue;

• Stating the company name and place of incorporation in every communication document and transaction instrument of the company in Hong Kong.  Communication document means a business letter, notice or other official publication of the company; whilst transaction instrument includes a contract, cheque, invoice or receipt signed or issued by the company; and

• If the liability of the members of the company is limited, exhibiting conspicuously a notice of that fact at every Business Venue and stating that fact in every communication document and transaction instrument of the company in Hong Kong.  A company with the word “Limited” in its name is sufficient to illustrate that the liability of its members is limited.

The Regulation further provides clarity as to the adequacy of certain descriptions of Non-Hong Kong Companies, aligning the requirements to those of local companies.  In particular, the Regulation provides that the name of a Non-Hong Kong Company is legally acceptable when abbreviations or symbols such as “Co.”, “Ltd.”, “HK” and “&” are used in the name of the company.  For example, the name “ABC Hong Kong Company Limited” of a Non-Hong Kong Company can be displayed as “ABC HK Co. Ltd.” so as to satisfy the requirements of the Regulation.

3. Other Obligations in Establishing and Maintaining Non-Hong Kong Companies

Apart from the requirements stated in the Regulation discussed above, other obligations in the maintenance and establishment of a Non-Hong Kong Company include but not limited to the following:

• Applying for registration with the Hong Kong Companies Registry (“Companies Registry”) as a Non-Hong Kong Company within 1 month after establishing a place of business in Hong Kong;

• Appointing a Hong Kong resident, a firm of solicitors or certified public accountants as the authorized representative of the company, who is authorized to accept on its behalf service of any process or notice required to be served on the company;

• Obtaining a Business Registration Certificate;

• Filing an Annual Return with the Companies Registry with its latest published accounts (if applicable) annually.  The filing of accounts will not be required if the Non-Hong Kong Company is neither required by (i) the law of the place of its incorporation, (ii) the laws of any other jurisdictions where the company is registered as a company, nor (iii) the rules of any stock exchange or similar regulatory bodies in that jurisdiction, to (a) publish its accounts or (b) deliver copies of its accounts to any person in whose office the accounts may be inspected as of right by members of the public; and

• Informing the Companies Registry of any changes in the company’s charter or governing statutes, directors, company secretary, authorized representative, registered office, principal place of business and corporate name.

Meanwhile, a registered Non-Hong Kong Company is not required to keep a significant controllers register in Hong Kong.

4. Practical Takeaways

The enactment of the Regulation does not significantly change the legal requirements in relation to Non-Hong Kong Companies.  Yet, section 8 of the Regulation provides that if a Non-Hong Kong Company fails to adhere to the disclosure requirements provided under the Regulation, the company, every responsible person of the company, and every agent of the company who authorizes or permits the company to not adhere to the Regulation shall commit an offence and is liable to a fine.  As such, it is recommended that careful review should be conducted to ensure compliance of the Regulation and all relevant legal requirements if a Non-Hong Kong Company has been or will be established in Hong Kong. 

IMPORTANT

Please note that the information above is a preliminary overview of this specialized area of law. As every case depends on its facts, it is imperative to state that the above does not constitute formal legal advice. We do not accept any responsibility whatsoever in respect of this publication. Should you wish to seek our advice or assistance, please do not hesitate to contact us. If you wish to unsubscribe, please inform us by email at mail@allawyers.com.hk.