Hong Kong’s financial services industry has seen unprecedented growth in recent years. As a result, Hong Kong has become a key financial services center in Asia. In Hong Kong, an intermediary needs a valid license to conduct financial services regulated activities. The regulated activities include securities dealing; futures dealing; leveraged foreign exchange trading; advising on corporate finance, securities and futures; securities margin financing; providing automated trading services; and asset management.
The Securities and Futures Ordinance SFO governs the securities and futures markets, establishing regulations for intermediaries, offers of investment products and general conduct in these markets.
The SFO regulates 10 types of regulated activity. Generally, no person may carry on a business (or to hold itself out as carrying on a business) in a regulated activity unless, the person is a corporation licensed or registered by the Securities and Futures Commission SFC for that regulated activity.
A person can be licensed or registered for more than one regulated activity. The more commonly encountered regulated activities are described below.
Type 1 (Dealing in Securities)
“Dealing in securities” means making or offering to make an agreement with another person, or inducing or attempting to induce another person to enter into or to offer to enter into an agreement:
There are a number of applicable exemptions from Type 1 regulated activity, including the principal dealing exemption. Under this exemption, a person is not regarded as dealing in securities if he acquires, disposes of, subscribes for or underwrites securities as principal, or deals as principal with a person who is a professional investor.
Brokers and dealers in shares and other equities will generally carry out Type 1 regulated activity.
Type 2 (Dealing in Futures Contracts)
“Dealing in futures contracts” means, whether as principal or agent and subject to prescribed exemptions:
Under the SFO, a “futures contract is defined as “a contract or an option on a contract made under the rules and conventions of a futures market Thus, “dealing in futures contracts generally refers to dealing in an exchange-traded futures contract.
Brokers in commodities and futures will generally carry out Type 2 regulated activity.
Type 3 (Leveraged Foreign Exchange Trading)
“Leveraged foreign exchange trading” means the act of entering into, offering to enter into or inducing or attempting to induce a person to enter into a contract the effect of which is that one party agrees or undertakes to:
make an adjustment between himself and another person according to whether a currency is worth more or less, as the case may be, in relation to another currency;
“Leveraged foreign exchange trading” includes (i) the provision of financial accommodation to facilitate such an act, and (ii) entering into, offering to enter into or inducing or attempting to induce a person to enter into an arrangement with another person, on a discretionary basis or otherwise, to enter into such an act.
The definition of “leveraged foreign exchange trading” is very broad and potentially includes all types of currency transactions. However, there are a number of exemptions, most notably currency exchange wholly referable to the provision of property or services.
Currency dealers who facilitate client trading on margin are generally carrying on Type 3 regulated activity.
Types 4 and 5 (Advising on Securities and Futures Contracts)
“Advising on securities and advising on futures contracts” mean, subject to prescribed exemptions:
giving advice on whether, which, the time at which, or the terms or conditions on which, securities or futures contracts should be acquired or disposed of; or
The SFO exempts from Type 4 and 5 regulated activities advice given by a company its wholly owned subsidiaries, its holding company (provided the holding company owns the entire issued share capital of the company) and wholly owned subsidiaries of such a holding company.
Financial planners and investment research firms will generally be carrying out Type 4 or 5 regulated activity. Certain asset management groups, including private equity firms, and corporate finance advisers may also be carrying out Type 4 regulated activity.
Type 6 License (Advising on Corporate Finance)
“Advising on corporate finance” means, subject to prescribed exemptions, giving advice:
concerning compliance with or in respect of the Listing Rules of the Stock Exchange of Hong Kong or the Codes on Takeovers and Mergers and Share Repurchases; or
Corporate finance advisers of investment banks will generally be carrying out Type 6 regulated activity. Specialized sub-regimes apply to corporate finance advisers who carry out activities as sponsors to listings on the Stock Exchange of Hong Kong or as financial advisers in respect of takeovers of public companies.
Type 9 License (Asset Management)
“Asset management” is defined as real estate investment scheme management or securities and futures contract management. The latter means providing a service of managing a portfolio of securities or futures contracts for another person.
Managers of hedge funds, public funds, and REITs are generally regarded as carrying out Type 9 regulated activity. Private equity firms may be carrying out Type 9 regulated activity depending on their structure.
The following exemptions apply:
You are exempt from licensing requirements for certain regulated activities if they are incidental to another regulated activity for which you are already licensed. For instance, assume that you are a stockbroker licensed for dealing in securities and as part of your investment advisory services, you offer securities or corporate finance advice to your clients. In this case, you are exempt from applying for a separate license for “advising on securities or advising on corporate finance” as these activities are incidental to your securities dealing business.
If you are an individual or corporation and hold a license for dealing in securities, you need not be separately licensed for carrying out securities margin financing activities for your clients. Authorized financial institutions, irrespective of whether they are registered for dealing in securities or not, are not required to be registered to carry out securities margin financing activities.
You are not required to be licensed for futures or securities dealing activity if you act as principal and deal only with professional investors (as defined in Schedule I of the SFO).
You are exempt from the licensing requirement if you provide investment advisory services solely to your wholly owned subsidiaries or to your holding company that holds all your issued shares or to other wholly owned subsidiaries of the holding company.
Accountants, lawyers and trust companies that offer advice on securities, futures contracts, asset management or corporate finance are exempt from the licensing requirement provided the advice given is incidental to their professional practice. The exemption also applies to journalists and broadcasters who offer investment advice through publications or television/radio broadcasts.
Authorized financial institutions are not required to register in order to carry out leveraged foreign exchange trading.
The following pre-requisites apply before you can proceed with the license application filing in Hong Kong.
Once you have decided to apply for a license, completed application forms along with supporting documents and a non-refundable application fee must be submitted either by post or in person to the SFC. A successful application is usually processed within 2-4 months. The SFC will issue a written notification of the approval and a license or certificate of registration will be mailed to you thereafter. Note that any incomplete or incorrect submission will result in delayed processing. The license or certificate of registration will indicate:
The license must be displayed on the office premises at all times. If you have more than one place of business, a certified copy of your license must be exhibited in a prominent place at each of your other places of business. All licensed or registered individuals, corporations and authorized financial institutions should pay annual license fees within one month after each anniversary date of their licenses or registrations.
If you have met the necessary requirements, submitted all the necessary documents and provided accurate information in your application, there is no reason for the SFC to reject you. If however, you fail to meet the statutory requirements, the SFC has the right to reject your application. However, before rejecting your application, the SFC will give you an opportunity to provide an explanation for your case. If your application is still rejected, you can file an appeal within 21 days of your application being rejected with the Securities and Futures Appeals Tribunal. The review process can take up to several weeks.
For the purpose of obtaining a SFC license, a corporation must appoint at least 2 responsible officers (STRONG>Ros) approved by the SFC to directly supervise the conduct of each regulated activity. Generally, it is desirable to have at least 3 ROs as if there are only 2 ROs and one resigns, the statutory requirement for 2 ROs may be breached.
At least one of the ROs must be an executive director of the licensed corporation. At the same time, every executive director who actively participates in, or is responsible for directly supervising the corporation’s SFO regulated activity must be approved as an RO but otherwise, there is no requirement for ROs to be directors.
At least one of the ROs should always be available to supervise the regulated activity for which he has been approved as an RO. In practice, this means that at least one RO must be resident in Hong Kong.
The SFO states that the SFC shall refuse to approve an applicant as a RO unless he satisfies it that he is a fit and proper person to be so approved (see above) and that he has sufficient authority within the licensed corporation. Generally, the SFC requires that a RO have:
Every licensed corporation must comply with minimum requirements as to paid-up share capital and liquid capital.
As a baseline, the minimum amount of paid-up share capital is HK$5 million and the minimum amount of liquid capital is HK$3 million or 5 per cent. of adjusted liabilities. However, certain regulated activities (e.g. leveraged foreign exchange trading and securities margin financing) carry higher paid-up share capital requirements.
Certain licensed corporations (e.g. asset managers) which do not hold client assets may qualify for no minimum paid-up capital requirements and minimum liquid capital requirements of HK$100,000.
Quite apart from licensing and registration requirements, any offer of any securities or regulated investment agreement to the public may, subject to prescribed exemptions, be subject to authorization requirements by the SFC. Thus, for example, asset managers licensed by the SFC who wish to market investment funds to the public in Hong Kong may be required to seek authorization of the SFC both for the fund itself and the marketing materials for the fund.