Currently, open-ended investment funds may be established in Hong Kong as unit trusts, but not in corporate form due to restrictions on capital reduction under the Companies Ordinance (CO).
The Securities and Futures (Amendment) Bill 2016 (Bill), which was gazetted on 15 January 2016, seeks to amend the Securities and Futures Ordinance (SFO) to introduce an open-ended fund company (OFC) structure in Hong Kong. The Bill provides the framework and enabling provisions for the new OFC structure. Detailed operational and procedural matters will be set out in new subsidiary legislation under the SFO and will be supplemented by rules, codes and guidance to be issued by the Securities and Futures Commission (SFC). The Bill also provides for consequential incidental changes to other Ordinances.
A three-month public consultation on OFCs was held in 2014, the conclusions to which were published by the the Financial Services and the Treasury Bureau (FSTB) on the same day as the Bill (15 January 2016) and are available here. The FSTB noted that respondents to the consultation were generally supportive of the introduction of a Hong Kong OFC, with specific comments focussing on technical aspects.
The Bill, which aims to diversify the fund types available in Hong Kong, to expand the existing fund distribution network and to promote fund origination in Hong Kong, will be introduced at the Legislative Council meeting of 27 January 2016.
Key points to note
An OFC is an open-ended collective investment scheme set up in the form of a company, with limited liability and variable share capital, which will have flexibility not enjoyed by companies formed under the CO. Pursuant to the Bill it will be possible to structure them using an umbrella fund structure so there could be multiple separate sub-funds each of whose assets are managed in accordance with its own investment objectives and policies and are for the benefit only of that sub-fund rather than the umbrella fund or other sub-funds.
As investment vehicles, OFCs are not designed to engage in commercial trade and business. OFCs will not be bound by restrictions on the reduction of share capital which apply to ordinary companies so they will be able to vary their share capital to create and cancel shares in order to meet investor redemption requests. Nor will they be restricted from distributing out of share capital, subject to solvency and disclosure requirements. OFCs will also benefit from the disapplication of certain corporate filing requirements due to the nature of OFCs as investment funds – e.g. simplified annual returns.
An OFC could be a publicly or privately-offered fund. The investment scope of privately-offered funds should align with that applicable to existing type 9 regulated activity (managing a portfolio of securities, futures contracts, real estate investment schemes and, in due course, over-the-counter derivatives) with a 10% exemption threshold for other asset classes. Publicly-offered funds will mainly be able to invest in securities, futures and over-the-counter derivatives (asset classes in accordance with the SFC’s product code requirements and authorisation conditions). If an OFC will be publicly-offered it will need to be SFC-authorised in the same way as other SFC-authorised products.
An OFC will not be required to be licensed as a licensed corporation under the SFO but will need to be registered with the SFC before it can be incorporated by the Companies Registry. It will also be required to delegate investment management to an investment manager approved by its board of directors and licensed by or registered with the SFC to carry out type 9 regulated activity (asset management).
Submissions in response to the public consultation included comments relating to:
- the proposed requirement to have at least one Hong Kong-resident director of each OFC – this requirement has been varied in the Bill so that it is not necessary to have a Hong Kong-resident director but each overseas director must appoint a Hong Kong process agent
- the proposed requirement to have a Hong Kong-incorporated custodian – this has been amended to allow overseas custodians which meet specified requirements
- requests for a profits tax exemption for onshore private-offered OFCs – this has not been addressed in the Bill, but further assessment of a profits tax exemption will be taken forward in a separate exercise.