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Hong Kong – New Regulatory Measures Under Securities And Futures (Amendment) Ordinance.

21 May, 2012

 

The Securities and Futures (Amendment) Ordinance 2012 ("Amendment Ordinance"), except Part 2 of which in relation to disclosure of inside information, comes into operation as it is published in Gazette on 4 May 2012. The Amendment Ordinance has introduced several regulatory initiatives which will be discussed in brief details below.
 
SFC’s direct access to the Market Misconduct Tribunal ("MMT")
 
With effect from 4 May 2012, the SFC is empowered by the Amendment Ordinance to directly institute proceedings before the MMT, without having to first refer the case to the Financial Secretary for his decision, to enforce a new price sensitive information disclosure requirement introduced by the Amendment Ordinance, and to deal with the existing six types of market misconduct under the Securities and Futures Ordinance ("SFO"). The six types of market misconduct under the SFO are insider dealing, false trading, price rigging, disclosure of information about prohibited transactions, disclosure of false or misleading information inducing transaction, and stock market manipulation.
 
Establishment of the Investor Education Centre ("IEC")
 
The Amendment Ordinance also empowered the SFC to establish the IEC, as a wholly-owned subsidiary of the SFC, to take up broader investor education responsibilities covering the entire financial services sector. The IEC is targeted to be launched in the fourth quarter of 2012.
 
New statutory disclosure regime
 
In addition, the Amendment Ordinance establishes a statutory disclosure regime whereby listed corporations will be required to disclose price sensitive information ("PSI") in a timely manner, backed by civil sanctions for non-compliance of the requirement. The new disclosure regime is going to replace the existing disclosure requirements under Listing Rules which does not have the force of law.
 
The statutory PSI disclosure regime will take effect on 1 January 2013 to give listed companies sufficient time to prepare themselves to comply with the new requirements and to set up the necessary internal control systems.
 
A new Part XIVA will be added to the SFO, under which listed corporation will be obliged to disclose to the public as soon as reasonably practicable after any "inside information" has come to its knowledge. A listed corporation will be regarded as having knowledge of inside information if:
 
  1. information has come to the knowledge of any of its officers (including director, manager or secretary of, or any person involving in the management of the corporation) in the course of performance of his/her duties; and
  2. a reasonable person acting as an officer of a listed corporation would consider that the information is inside information in relation to the corporation.
 
"Inside information" means any specific information about: (i) the listed corporation; (ii) a shareholder or officer of the listed corporation; or (iii) the listed securities of the listed corporation or their derivatives, which is not generally known to the persons who are accustomed or would be likely to deal in the listed securities of the corporation, but which would, if it were generally known to them, be likely to materially affect the price of the listed securities.
 
The newly passed legislation provides several "safe harbours" where non-disclosure or delayed disclosure would not be regarded as a breach of the Ordinance. Examples are:
 
  1. when disclosure is prohibited or would constitute a contravention of a restriction under law;
  2. when the relevant information concerns an incomplete proposal or negotiations or trade secret and the listed corporation has taken reasonable precautions to effectively preserve the confidentiality of the information;
  3. when a waiver has been sought from the SFC.

Possible penalties include, among others, a maximum fine of HK$8 million, disqualification of directors for a maximum of 5 years, or a "cold shoulder" order which deprives an official of market facilities access for up to 5 years.

In connection with the implementation of the statutory PSI disclosure regime, changes to the Listing Rules will be necessary to minimise duplication and overlap with the new law. Under the existing Listing Rules, the core rule that requires issuers to release price sensitive information as soon as possible is LR13.09. The main change will be to remove the existing continuing disclosure obligations which will become part of the statutory regime. The Hong Kong Exchanges and Clearing Limited ("HKEx") expects to launch a public consultation on the changes to the Listing Rules later this year. The SFC and HKEx also prepared to organise training for listed corporations and their advisers on compliance with the statutory regime.
 
The endeavours to give some or all Listing Rules statutory backing have been started since 2003. The three main areas proposed for codification in a consultation paper published in 2007 by the SFC were (i) periodic financial reporting; (ii) disclosure of price sensitive information; and (iii) certain notifiable transactions and connected transactions which require shareholders approval. The conclusion of a statutory disclosure regime to enhance market transparency finally comes after almost 10 years of fierce debate whereas proposals to change the rules relating to financial reporting and Chapter 14 and 14A transactions seem to have been dropped for the time being or the regulatory had decided to introduce these changes gradually.
 
Please click here to view or download this publication.
 
 

For further information, please contact:

 

Ronny Chow, Partner, Deacons

ronny.chow@deacons.com.hk

 

 

 

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