Cap. 571AQ 《證券及期貨(開放式基金型公司)規則》Securities and Futures (Open-ended Fund Companies) Rules

An application made under section 112D(1) of the Ordinance in relation to a proposed company must contain—

The application must be accompanied by—

If a person proposes to incorporate an open-ended fund company under Part IVA of the Ordinance, the person must, in the manner specified in subrule (2), deliver to the Registrar the following fees and documents, together with the documents specified in section 112C(1) of the Ordinance (prescribed documents)—

The manner of delivery referred to in subrule (1) is delivery to the Commission.

On registering a proposed company under section 112D(1) of the Ordinance, the Commission must, as soon as reasonably practicable, send to the Registrar the documents, fees and levy referred to in subrule (1).

In this rule—

The statement of compliance referred to in rule 5(e) is a statement certifying that—

The Registrar may accept the statement of compliance as sufficient evidence that the requirements for incorporation prescribed by Part IVA of the Ordinance or these Rules are met with respect to the proposed company.

An application under section 112ZJB(1) of the Ordinance (application) must contain—

The application must be accompanied by—

If the corporation has one or more non-Hong Kong sub-funds, a reference to the corporation in subrule (2)(e)(iii), (iv), (v) or (vi) or (f) includes the sub-fund or each of the sub-funds.

For the purposes of subrule (2)(e) or (f), the requirement is that the certificate is—

If any document mentioned in subrule (2) is not in English or Chinese, the document must be accompanied by a certified translation of the document in English.

In this rule—

A non-Hong Kong fund corporation that applies for a certificate of re-domiciliation under section 112ZJC of the Ordinance must deliver, in the manner specified in subrule (2), to the Registrar the following fees and documents, together with the documents specified in section 112ZJC(1) of the Ordinance (prescribed documents)—

For the purposes of subrule (1), delivery to the Registrar is to be done by way of delivery to the Commission.

On registering a non-Hong Kong fund corporation under section 112ZJB(1) of the Ordinance, the Commission must, as soon as reasonably practicable, send to the Registrar the documents, fees and levy referred to in subrule (1).

In this rule—

The statement of compliance referred to in rule 8C(e) is a statement certifying that—

The Registrar may accept the statement of compliance as sufficient evidence that the relevant requirements are met.

An open-ended fund company must not change its name unless the Commission has approved the change under subrule (2).

On an application made in writing and on payment of the applicable fee (if any) by an open-ended fund company, the Commission may grant approval to the company for a change of its name.

The Commission must, as soon as reasonably practicable after granting an approval under subrule (2), give the company notice in writing of the approval.

The open-ended fund company must, within 15 days after the date on which the company is given notice of the Commission’s approval under subrule (3), deliver in the manner specified in subrule (5) to the Registrar for registration a notice, in the specified form, of the change of name of the company and the following fees—

The manner of delivery referred to in subrule (4) is delivery to the Commission.

The Commission must, as soon as reasonably practicable after granting the approval under subrule (2)—

After receiving the notice of approval of the Commission under subrule (6)(a) and the notice and the fees under subrule (6)(b), the Registrar must take the following actions if the Registrar is satisfied that the requirements for the change of name as prescribed by Part IVA of the Ordinance and these Rules are met—

The change of name of the company has effect from the date on which the certificate of change of name is issued under subrule (7)(c) in respect of the company.

A change of name of the company under this rule does not affect any rights or obligations of the company or render defective any legal proceedings by or against the company. Any legal proceedings that could have been commenced or continued by or against the company by its former name may be commenced or continued by or against it by its new name.

If an open-ended fund company contravenes subrule (4), the company commits an offence and is liable on conviction to a fine at level 3 and, in the case of a continuing offence, to a further fine of $300 for each day during which the offence continues.

An open-ended fund company must not do any act that it is not authorized to do by its instrument of incorporation.

If a power of an open-ended fund company is expressly modified or excluded by its instrument of incorporation, the company must not exercise the power contrary to that modification or exclusion.

A shareholder of an open-ended fund company may commence proceedings to restrain the company from doing an act, or exercising a power, in contravention of subrule (1) or (2).

Proceedings must not be commenced under subrule (3) in respect of an act to be done, or a power to be exercised, in fulfillment of a legal obligation arising from a previous act of an open-ended fund company.

An act done, or a power exercised, by an open-ended fund company is not invalid only because the company does the act or exercises the power in contravention of subrule (1) or (2).

In favour of a person dealing with an open-ended fund company in good faith, the power of the company’s directors to bind the company, or authorize others to do so, is to be regarded as free of any limitation under any relevant document of the company.

For the purposes of subrule (1)—

This rule does not affect the right of any shareholder of an open-ended fund company to commence proceedings to restrain the company from doing an act that is beyond the directors’ powers.

Proceedings must not be commenced under subrule (3) in respect of an act to be done in fulfilment of a legal obligation arising from a previous act of the company.

This rule does not affect any liability incurred by the directors, or any other person, by reason of the directors exceeding their powers.

In this rule—

The instrument of incorporation of an open-ended fund company—

The instrument of incorporation of an open-ended fund company must include a statement that the object of the company is the operation of the company as a collective investment scheme.

The instrument of incorporation of an open-ended fund company is binding on the company’s officers, its custodian, and its shareholders, and all these persons are taken to have notice of the provisions of the instrument of incorporation.

Subject to the Ordinance, these Rules and its instrument of incorporation, an open-ended fund company may alter its instrument of incorporation.

An open-ended fund company must not alter any of the following statements contained in its instrument of incorporation—

An open-ended fund company must give notice in writing to the Commission of each alteration made by the company to the company’s instrument of incorporation.

Any alteration made in contravention of subrule (2) has no effect.

If an open-ended fund company alters its instrument of incorporation under rule 14, the company must, within 15 days after the date on which the alteration takes effect, deliver to the Registrar for registration, the following documents—

Subrule (1) does not apply to an alteration to change the name of an open-ended fund company under rule 9.

If a provision of, or the effect of a provision of, the instrument of incorporation of an open-ended fund company is altered by an order of the Court, the company must, within 15 days after the date on which the alteration takes effect, deliver to the Registrar for registration, the following documents—

Subrule 3(b) does not apply if the company is required to deliver an office copy of the order to the Registrar under another provision of the Ordinance.

If an open-ended fund company contravenes subrule (1) or (3), the company commits an offence and is liable on conviction to a fine at level 3 and, in the case of a continuing offence, to a further fine of $300 for each day during which the offence continues.

An open-ended fund company must disclose the details specified in subrule (2)—

The details referred to in subrule (1) are—

An open-ended fund company may execute a document under its common seal.

An open-ended fund company may also execute a document by having it signed by at least one director on the company’s behalf.

A document signed in accordance with subrule (2) and expressed (in whatever words) to be executed by the company has effect as if the document had been executed under the company’s common seal.

This rule has effect subject to section 112M of the Ordinance.

An open-ended fund company may execute a document as a deed by—

For the purposes of subrule (1)(c), if a document is executed in accordance with rule 17, the document is presumed, unless there is evidence to the contrary, to be delivered as a deed.

An open-ended fund company may, either generally or in respect of any specific matter, by an instrument executed as a deed, empower any person as its attorney to execute a deed or any other document on its behalf in Hong Kong or elsewhere.

A deed or any other document executed by an attorney on behalf of the company binds the company and has effect as if it were executed by the company.

This rule does not affect the operation of any other Ordinance as to the execution of powers of attorney.

If the address of an open-ended fund company’s registered office is changed, the company must, within 15 days after the change, deliver to the Registrar for registration, a notice of the change in the specified form.

If an open-ended fund company contravenes subrule (1), the company commits an offence and is liable on conviction to a fine at level 5 and, in the case of a continuing offence, to a further fine of $1,000 for each day during which the offence continues.

The Registrar may specify the form of any document, required under Part IVA of the Ordinance or these Rules, to be delivered to the Registrar.

Subrule (1) does not apply to a document the form of which is prescribed by Part IVA of the Ordinance or these Rules.

In specifying the form of a document under subrule (1), the Registrar may specify more than one form of the document, whether as alternatives or to provide for different circumstances.

The Registrar may issue guidelines—

The Registrar—

Guidelines issued under this rule are not subsidiary legislation.

The Registrar may amend or revoke any of the guidelines. Subrules (2) and (3) apply to an amendment or revocation of guidelines in the same way as they apply to the issuance of guidelines.

A person does not incur any civil or criminal liability only because the person has contravened any of the guidelines.

If, in any legal proceedings, the court is satisfied that a guideline is relevant to determining a matter that is in issue—

If a document is required under Part IVA of the Ordinance or these Rules to be signed by the Registrar or to bear the Registrar’s printed signature, the Registrar may authenticate it in any manner that the Registrar thinks fit.

If anything is authorized to be certified by the Registrar under Part IVA of the Ordinance or these Rules, the Registrar may certify it in a manner that the Registrar thinks fit.

The Registrar must keep records of—

The Registrar must maintain a register of open-ended fund companies.

The register maintained under subrule (2) must contain—

The records kept under rule 24(1) must be such that information relating to an open-ended fund company is associated with the company in a manner determined by the Registrar, so as to enable all the information relating to the company to be retrieved.

Each of the records mentioned in subrule (1) must be kept in a form that enables any person to inspect the information contained in the record and to make a copy of the information.

Subject to subrules (1) and (2), a record of information kept for the purposes of rule 24(1) may be kept in any form that the Registrar thinks fit.

Notes made by the Registrar under rule 40 and the index of directors kept by the Registrar under rule 109(1) may be made or kept in any form that the Registrar thinks fit.

If the Registrar keeps the record mentioned in subrule (3) in a form that differs from the form in which the document or certificate containing the information was delivered to, or generated by, the Registrar, the record is presumed, unless the contrary is proved, to represent the information contained in the document or certificate as delivered or generated.

If the Registrar records the information contained in a document for the purposes of rule 24(1), the Registrar is to be regarded as having discharged any duty imposed by Part IVA of the Ordinance or these Rules on the Registrar to keep, file or register the document or certificate concerned.

The Registrar may destroy or dispose of a document delivered to the Registrar for registration under Part IVA of the Ordinance or these Rules if the information contained in the document has been recorded by the Registrar in any other form for the purposes of rule 24(1).

If a document or certificate has been kept by the Registrar for at least 7 years for the purposes of rule 24(1), the Registrar may destroy or dispose of the document or certificate.

If the Registrar is required by rule 43 not to make any information available for public inspection, the Registrar is not required to keep a record of the information for any longer than appears to the Registrar to be reasonably necessary for the purpose for which the information was delivered to the Registrar.

For the purposes of this Division, a document delivered to the Registrar for registration is unsatisfactory if—

In this rule—

The Registrar may, in relation to any document required or authorized to be delivered to the Registrar under Part IVA of the Ordinance or these Rules—

The Registrar may, in relation to any document authorized to be delivered to the Registrar for registration under rule 37(3) for the purpose of rectification of an error, specify requirements as to—

For the purposes of subrules (1) and (2), the Registrar may specify different requirements for different documents or classes of documents, or for different circumstances.

For the purposes of subrule (1)(b), the Registrar may—

For the purposes of subrule (1)(c), the Registrar may—

This rule does not empower the Registrar to require a document to be delivered to the Registrar by electronic means.

Requirements specified under this rule are not subsidiary legislation.

The Registrar may enter into an agreement with an open-ended fund company to provide that any document, or any class of document, that relates to the company, and is required or authorized to be delivered to the Registrar under Part IVA of the Ordinance or these Rules—

An agreement with an open-ended fund company may also provide that any document, or any class of document, that relates to the company, and is required or authorized to be delivered by the Registrar to it under Part IVA of the Ordinance or these Rules, will be delivered by electronic means.

The Registrar may specify a standard form for an agreement and the extent to which the form is to be used.

If the Registrar is of the opinion that a document delivered for registration under Part IVA of the Ordinance or these Rules is unsatisfactory, the Registrar—

The Registrar may refuse to register the document and return the document to the person who delivered it for registration.

The Registrar may also advise that—

If the Registrar—

the document is to be regarded as not having been delivered to the Registrar in satisfaction of the provision of Part IVA of the Ordinance or these Rules that requires or authorizes the document to be delivered to the Registrar.

If a person is aggrieved by a decision of the Registrar to refuse to register a document under rule 31(2), the person may, within 42 days after the decision, appeal to the Court against the decision.

The Court may make any order that it thinks fit, including an order as to costs.

If the Court makes an order as to costs against the Registrar under subrule (2), the costs are payable out of the general revenue, and the Registrar is not personally liable for the costs.

This rule applies if—

The Registrar must send a notice of the refusal, and the reasons for the refusal, to—

If a notice is sent to a person under subrule (2) with respect to a document, the period specified in subrule (4) is to be disregarded for the purpose of calculating the daily penalty under Part IVA of the Ordinance or these Rules that makes it an offence for failing to comply with a requirement to deliver the document and that imposes a penalty for each day during which the offence continues.

The period is one beginning on the date on which the document was delivered to the Registrar and ending with the 14th day after the date on which the notice is sent under subrule (2).

If it appears to the Registrar that the information contained in a document registered by the Registrar in respect of an open-ended fund company is inconsistent with other information relating to the company on the OFC register, the Registrar may give notice to the company—

For the purposes of subrule (1)(b), the Registrar may require the company to deliver to the Registrar within the period specified in the notice—

If an open-ended fund company fails to comply with a requirement under subrule (1)(b), the company commits an offence, and is liable on conviction to a fine at level 5 and, in the case of a continuing offence, to a further fine of $1,000 for each day during which the offence continues.

If an open-ended fund company is charged with an offence under subrule (3) for failure to comply with a requirement, it is a defence to establish that the company took all reasonable steps to secure compliance with the requirement.

For the purpose of ensuring that a person’s information on the OFC register is accurate or bringing the information up to date, the Registrar may send a notice to the person requiring the person to give the Registrar, within a period specified by the Registrar, any information about the person, being information of the kind that is included on the OFC register.

If a person fails to comply with the requirement under subrule (1), the person commits an offence, and is liable on conviction to a fine at level 5 and, in the case of a continuing offence, to a further fine of $1,000 for each day during which the offence continues.

If a person is charged with an offence under subrule (2) for failure to comply with a requirement, it is a defence to establish that the person took all reasonable steps to secure compliance with the requirement.

The Registrar may, on the Registrar’s own initiative, rectify a typographical or clerical error contained in any information on the OFC register.

The Registrar may, on application by an open-ended fund company, rectify a typographical or clerical error contained in any information relating to the company on the OFC register.

If, in relation to an application for the purposes of subrule (2), a document showing the rectification is delivered to the Registrar for registration, the Registrar may rectify the error by registering the document.

The Court may, on application by any person, by order direct the Registrar to rectify any information on the OFC register or to remove any information from it if the Court is satisfied that—

If, in relation to an application for the purposes of subrule (1), a document showing the rectification is filed with the Court, the Court may require the Registrar to rectify the information by registering the document.

The Court must not order the removal of any information from the OFC register under subrule (1) unless it is satisfied that—

If the Court makes an order for the rectification of any information on or the removal of any information from the OFC register under subrule (1), the Court may make any consequential order that appears to it to be just with respect to the legal effect (if any) to be accorded to the information by virtue of its having appeared on the OFC register.

If the Court makes an order for the removal of any information from the OFC register under subrule (1), the Court may direct—

The Court must not give a direction under subrule (5) unless it is satisfied that—

If the Court makes an order under this rule, the person who made the application must deliver an office copy of the order to the Registrar for registration.

In any proceedings before the Court for the purposes of rule 38, the Registrar—

Whether or not the Registrar appears in those proceedings, the Registrar may submit to the Court a written statement signed by the Registrar, giving particulars of the matters relevant to the proceedings and within the Registrar’s knowledge.

Unless otherwise directed by the Court, a statement submitted under subrule (2) is to be regarded as forming part of the evidence in the proceedings.

The Registrar may make a note in the OFC register for the purpose of providing information in relation to—

For the purposes of Part IVA of the Ordinance and these Rules, a note made under subrule (1) is part of the OFC register.

The Registrar may remove a note if the Registrar is satisfied that it no longer serves any useful purpose.

The Registrar must make the OFC register available for public inspection at all reasonable times so as to enable any member of the public—

For the purposes of subrule (1), the Registrar must, on receiving the applicable fee, allow a person to inspect any information on the OFC register in any form that the Registrar thinks fit.

For the purposes of subrule (1), the Registrar may, on receiving the applicable fee, produce to a person a copy or a certified true copy of any document or information on the OFC register, in so far as the document or information may be made available for public inspection, in any form that the Registrar thinks fit.

The Registrar may issue a certificate under Part IVA of the Ordinance or these Rules in any manner the Registrar thinks fit.

Without limiting the powers of the Registrar under subrule (1), the Registrar may issue a certificate in the form of an electronic record.

Where, for the purposes of Part IVA of the Ordinance or these Rules, a protected person provides a service by means of which information in electronic form is supplied to the public, or supplies information by means of magnetic tapes or any electronic mode, the protected person is not personally liable for any loss or damage suffered by a user of the service or information by reason of an error or omission appearing in the information if the error or omission—

Where, for the purposes of Part IVA of the Ordinance or these Rules, a protected person provides a service or facility by means of which documents may be delivered to the Registrar by electronic means, the protected person is not personally liable for any loss or damage suffered by a user of the service or facility by reason of an error or omission appearing in a document delivered to the Registrar by means of the service or facility if the error or omission—

The protection given to a protected person by subrules (1) and (2) in respect of an error or omission does not affect any liability of the Government in tort for the error or omission.

In this rule—

For the purpose of enquiring into whether any specified act has been done, if each of the conditions specified in subrule (2) is satisfied, the Registrar may, by notice in writing, require a person—

Subject to subrule (3), the conditions are—

Subrule (2)(a)(iii) does not apply if the person who is to be required to produce the record or document is—

The Registrar must not require an authorized financial institution to produce any record or document, or disclose any information, relating to the affairs of a customer of the institution under subrule (1) unless—

If an authorized financial institution produces a record or document relating to the affairs of its customer in compliance with a requirement imposed under subrule (1), the Registrar may also require that customer to provide any information or explanation in respect of the record or document.

If a person produces a record or document in compliance with a requirement imposed under subrule (1), the Registrar may make copies, or otherwise record the details, of the record or document.

In this rule—

A person commits an offence if the person, without reasonable excuse, fails to comply with a requirement imposed on the person under rule 46.

A person commits an offence if the person, with intent to defraud, fails to comply with a requirement imposed on the person under rule 46.

An officer or employee of a body corporate on which a requirement is imposed under rule 46 commits an offence if the officer or employee, with intent to defraud, causes or allows the body corporate to fail to comply with the requirement.

A person commits an offence if the person—

A person commits an offence if the person, with intent to defraud, in purported compliance with a requirement imposed on the person under rule 46—

An officer or employee of a body corporate on which a requirement is imposed under rule 46 commits an offence if the officer or employee, with intent to defraud, causes or allows the body corporate to, in purported compliance with the requirement—

A person is not excused from complying with a requirement imposed on the person under rule 46 only on the ground that to do so might tend to incriminate the person.

A person who commits an offence under subrule (1) is liable—

A person who commits an offence under subrule (2), (3), (5) or (6) is liable—

A person who commits an offence under subrule (4) is liable—

If the Registrar or a delegate of the Registrar requires a person, under rule 46, to provide any information or explanation in respect of any record or document produced, the Registrar or delegate must ensure that the person has first been informed or reminded of the limitations imposed by subrule (2) on the admissibility in evidence of—

If the conditions specified in subrule (3) are satisfied, the Registrar’s or delegate’s requirement, as well as the information or explanation provided by the person, are not admissible in evidence against the person in criminal proceedings other than those in which the person is charged with an offence in respect of the information or explanation—

The conditions are—

If—

the person is not liable in any proceedings relating to a breach of duty of confidentiality by reason only of the disclosure.

The conditions are—

Subrule (1) does not apply to a disclosure made by a person in the capacity as a banker or lawyer in respect of information to which the person owes a duty of confidentiality in that capacity.

Any information concerning the identity of a protected person is not admissible in evidence in any proceedings before a court or tribunal.

In those proceedings, a witness is not obliged—

If a book, document or paper that is in evidence, or liable to inspection, in those proceedings contains an entry—

the court or tribunal must cause the entry to be concealed from view, or to be obliterated, so far as may be necessary to protect the identity of the protected person from discovery.

In those proceedings, the court or tribunal may, despite subrule (1), (2) or (3), permit inquiry, and require full disclosure, concerning a protected person if—

In this rule—

If—

the Registrar or delegate may require the production of a reproduction of the recording of the information or matter, or the relevant part of the recording, in a legible form.

If—

the Registrar or delegate may require the production of a reproduction of the recording of the information or matter, or the relevant part of the recording, in a form that enables the information or matter to be reproduced in a legible form.

A person commits an offence if—

A person who commits an offence under subrule (1) is liable—

This rule applies if the Registrar or a delegate of the Registrar has taken possession of any record or document under rule 46.

The Registrar or delegate must, subject to any reasonable conditions the Registrar or delegate may impose as to security or otherwise, permit a person who would be entitled to inspect the record or document had the Registrar or delegate not taken possession of it, at all reasonable times—

An open-ended fund company may issue more than one class of shares.

The scheme property of an open-ended fund company belongs exclusively to the company and no shareholder of the company has any interest in the scheme property of the company.

The rights that attach to each share of any given class are—

A share or other interest of a shareholder of an open-ended fund company is personal property.

A share or other interest of a shareholder of an open-ended fund company is transferable in accordance with the company’s instrument of incorporation.

An open-ended fund company must not register a transfer of shares in the company unless a proper instrument of transfer has been delivered to the company.

Subrule (1) does not affect any power of an open-ended fund company to register as a shareholder a person to whom the right to shares has been transmitted by operation of law.

The transferee or transferor of shares in an open-ended fund company may lodge the instrument of transfer with the company.

The company must, within 2 months after the instrument of transfer is lodged, either—

If an open-ended fund company refuses to register the transfer, the transferee or transferor may request a statement of the reasons for the refusal.

The company must, within 28 days after receiving a request under subrule (3)—

This rule does not apply if the open-ended fund company is entitled to refuse to register the transfer under rule 62(1) or (3).

If an open-ended fund company contravenes subrule (2) or (4), the company commits an offence and is liable on conviction to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

An open-ended fund company may, within 2 months after the instrument of transfer is lodged, refuse to register the transfer if—

If an open-ended fund company refuses to register a transfer under subrule (1), the company must, within 2 months after the instrument of transfer is lodged, give the transferor and the transferee notice in writing of the refusal.

However, an open-ended fund company is not required to register a transfer or to give notice to any person if registering the transfer or giving the notice would result in a contravention of any applicable law.

If an open-ended fund company contravenes subrule (2), the company commits an offence and is liable on conviction to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

This rule applies if—

The company must, within 2 months after receiving the notification, either—

If an open-ended fund company refuses registration, the person may request a statement of the reasons for the refusal.

If a person makes a request under subrule (3), the company must, within 28 days after receiving the request—

If an open-ended fund company contravenes subrule (2) or (4), the company commits an offence and is liable on conviction to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

An open-ended fund company may—

An open-ended fund company that pays compensation to a person under this rule has the same rights and remedies against the person liable for the loss as the person compensated would have had.

If the shares in an open-ended fund company have, by amalgamation or otherwise, become shares in another open-ended fund company, the other company has the same powers under this rule as the first company would have had if it had continued.

An open-ended fund company must keep in the English or Chinese language a register of shareholders.

An open-ended fund company must enter in the register of shareholders—

An open-ended fund company must enter in the register of shareholders, with the names and addresses of the shareholders, a statement of—

An open-ended fund company that is a re-domiciled OFC must, within 2 months after the re-domiciliation date, enter in the register of shareholders, in respect of each shareholder as at that date, the particulars required under subrules (2) and (3). (33 of 2021 s. 20)

If an open-ended fund company issues a share to any person and the name of the person is not already entered in the register of shareholders, the company must, within 2 months after the date of issue of the share, enter in the register, in respect of the person, the particulars required under subrules (2) and (3).

An open-ended fund company must enter in the register of shareholders the particulars required under subrules (2) and (3) within 2 months after the company has received notice of the particulars concerned.

In the case of a person mentioned in subrule (2)(c), all entries in the register relating to the person on the date on which the person ceased to be a shareholder may be destroyed after the end of 10 years from that date.

If an open-ended fund company contravenes subrule (1), (3A), (4) or (5), the company commits an offence and is liable on conviction to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues. (33 of 2021 s. 20)

An open-ended fund company must keep its register of shareholders—

An open-ended fund company must notify the Registrar of the place at which the register of shareholders is kept. The notice must be in the specified form and delivered to the Registrar for registration within 15 days after the register is first kept at that place.

Subrule (2) does not require an open-ended fund company to notify the Registrar of the place at which the register of shareholders is kept if the register has, at all times since it came into existence, been kept at the company’s registered office.

An open-ended fund company must notify the Registrar of any change (other than a change of the address of the company’s registered office) in the place at which the register of shareholders is kept. The notice must be in the specified form and delivered to the Registrar for registration within 15 days after the change.

If an open-ended fund company contravenes subrule (1), (2) or (4), the company commits an offence and is liable on conviction to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

A shareholder of an open-ended fund company is entitled, on request and without charge—

A person specified in subrule (3) (specified person) is entitled, on request and without charge, to inspect the register of shareholders of an open-ended fund company.

Each of the following persons is a specified person for the purposes of subrule (2)—

A specified person is entitled, on request and without charge, to be provided with a copy of the register, or any part of it.

If—

a person aggrieved, or any shareholder of the company, or the company, may apply to the Court for rectification of the register.

If an application is made under subrule (1), the Court may—

On an application made under subrule (1), the Court—

The shareholders of an open-ended fund company may request the directors of the company to call a general meeting of the company.

The directors are required to call a general meeting if the company has received requests to do so from shareholders of the company representing at least 10% of the total voting rights of all the shareholders having a right to vote at general meetings.

The directors must call a meeting within 21 days after the date on which they become subject to the requirement under subrule (2).

A meeting called under subrule (3) must be held on a date not more than 28 days after the date of the notice convening the meeting.

If the requests received by the company identify a resolution that may properly be moved and is intended to be moved at the meeting, the notice of the meeting must include notice of the resolution and other contents as may be required under the company’s instrument of incorporation.

The business that may be dealt with at the meeting includes a resolution of which notice has been included in the notice of meeting in accordance with subrule (5).

If the resolution is to be proposed as a special resolution, the directors are to be regarded as not having duly called the meeting unless the notice of the meeting includes the text of the resolution and specifies the intention to propose the resolution as a special resolution.

If the directors of an open-ended fund company are required under rule 74(2) to call a general meeting and do not do so in accordance with rule 74(3), the shareholders of the company who requested the meeting, or any of them representing more than one-half of the total voting rights of all of them, may themselves call a general meeting.

If the requests received by the company identify a resolution that may properly be moved and is intended to be moved at the meeting, the notice of the meeting must include notice of the resolution.

The meeting must be called for a date not more than 3 months after the date on which the directors become subject to the requirement to call a meeting.

The meeting must be called in the same manner, as nearly as possible, as that in which a meeting is required to be called by the directors.

The business that may be dealt with at the meeting includes a resolution of which notice has been included in the notice of meeting in accordance with subrule (2).

Any reasonable expenses incurred by the shareholders of the company requesting the meeting by reason of the failure of the directors duly to call a meeting must be reimbursed by the company.

Any sum so reimbursed must be retained by the company out of any sum due or to become due from the company by way of fees or other remuneration in respect of the services of the directors who were in default.

If at any time an open-ended fund company does not have any director, or does not have sufficient directors capable of acting to form a quorum, any director, or any 2 or more shareholders of the company representing at least 10% of the total voting rights of all the shareholders having a right to vote at general meetings, may call a general meeting in the same manner, as nearly as possible, as that in which general meetings may be called by the directors of the company.

Subrule (1) has effect in so far as the company’s instrument of incorporation does not make other provision in that behalf.

This rule applies if, for any reason, it is impracticable—

The Court may, either of its own motion or on application—

order a general meeting of the company to be called, held and conducted in the manner the Court thinks fit.

If the order is made, the Court may give ancillary or consequential directions that the Court thinks expedient.

Directions given under subrule (3) may include a direction that 1 shareholder of the company present at the meeting in person or by proxy is to be regarded as constituting a quorum.

A general meeting called, held and conducted in accordance with an order under subrule (2) is to be regarded for all purposes as a general meeting of the company duly called, held and conducted.

The legal personal representative of a deceased shareholder of the company is to be regarded in all respects, for the purposes of this rule, as a shareholder of the company having the same rights with respect to attending and voting at a meeting of the company as the deceased shareholder would, if living, have had.

A general meeting of an open-ended fund company must be called in accordance with the company’s instrument of incorporation.

A general meeting (other than an adjourned meeting) of an open-ended fund company must be called by notice of—

Notice of a general meeting of an open-ended fund company—

Notice of a general meeting of an open-ended fund company must be given to—

In subrule (1), the reference to a shareholder includes any person who is entitled to a share in consequence of the death or bankruptcy of a shareholder, if the company has been notified of that person’s entitlement.

If notice of a general meeting of an open-ended fund company or any other document relating to the general meeting is required to be given to a shareholder of the company, the company must give a copy of it to its auditor at the same time as the notice or the other document is given to the shareholder.

If an open-ended fund company contravenes subrule (1), the company commits an offence and is liable on conviction to a fine at level 3.

An open-ended fund company must ensure that a notice of a general meeting of the company—

Subrule (1)(a), (b) and (c) has effect subject to the company’s instrument of incorporation.

Subrule (1)(d) does not apply in relation to a resolution of which notice has been included in the notice of meeting under rule 74(5) or 75(2).

The validity of a resolution, if passed at a general meeting of an open-ended fund company, is not affected by a contravention of subrule (1)(d).

Subrule (4) does not affect any common law rules or equitable principles, or the provisions of any other Ordinance, as regards the validity of a resolution.

If, by these Rules, special notice is required to be given of a resolution, the resolution is not effective unless notice of the intention to move it has been given to the open-ended fund company at least 28 days before the meeting at which it is moved.

The company must, if practicable, give its shareholders notice of the resolution at the same time and in the same manner as it gives notice of the meeting.

If that is impracticable, the company must give its shareholders notice of the resolution at least 14 days before the meeting—

If, after notice of the intention to move the resolution has been given to the company, a meeting is called for a date 28 days or less after the notice has been given, the notice is to be regarded as having been properly given, though not given within the time required.

If an open-ended fund company gives notice of—

any accidental omission to give notice to, or any non-receipt of notice by, any person entitled to receive notice must be disregarded for the purpose of determining whether notice of the meeting or resolution is duly given.

Except in relation to notice given under rule 74 or 75, subrule (1) has effect subject to the company’s instrument of incorporation.

A body corporate may, by resolution of its directors or other governing body—

A person authorized under subrule (1) is entitled to exercise the same powers on behalf of the body corporate as that body corporate could exercise if it were an individual shareholder or creditor of the company.

A recognized clearing house may, if it or its nominee is a shareholder of an open-ended fund company, authorize any person it thinks fit to act as its representative at any meeting of the company.

If more than one person is authorized under subrule (1), the authorization must specify the number and class of shares in respect of which each person is so authorized.

A person authorized under subrule (1) is entitled to exercise the same powers on behalf of the recognized clearing house (or its nominee) as that clearing house (or its nominee) could exercise if it were an individual shareholder of the company.

A resolution of an open-ended fund company is validly passed at a general meeting if—

in accordance with this Part and the company’s instrument of incorporation.

For the purposes of subrule (1), if there is any inconsistency between a provision of this Part and a provision of the open-ended fund company’s instrument of incorporation, unless otherwise provided in the provision of this Part, the provision of this Part prevails over the provision of the instrument of incorporation to the extent of the inconsistency.

An ordinary resolution of the shareholders (or of a class of shareholders) of an open-ended fund company means a resolution that is passed by a simple majority.

A resolution passed at a general meeting on a show of hands is passed by a simple majority if it is passed by a simple majority of the total of the following—

A resolution passed on a poll taken at a general meeting is passed by a simple majority if it is passed by shareholders representing a simple majority of the total voting rights of all the shareholders who (being entitled to do so) vote in person or by proxy on the resolution.

Anything that may be done by an ordinary resolution may also be done by a special resolution.

A special resolution of the shareholders (or of a class of shareholders) of an open-ended fund company means a resolution that is passed by a majority of at least 75%.

A resolution passed at a general meeting on a show of hands is passed by a majority of at least 75% if it is passed by at least 75% of the total of the following—

A resolution passed on a poll taken at a general meeting is passed by a majority of at least 75% if it is passed by shareholders representing at least 75% of the total voting rights of all the shareholders who (being entitled to do so) vote in person or by proxy on the resolution.

If a resolution is passed at a general meeting—

Anything that may be done by a resolution passed at a general meeting of an open-ended fund company may be done, without a meeting and without any previous notice being required, by a written resolution of the shareholders of the company.

Anything that may be done by a resolution passed at a meeting of a class of shareholders of an open-ended fund company may be done, without a meeting and without any previous notice being required, by a written resolution of that class of shareholders of the company.

A resolution may be proposed as a written resolution by—

The requisite percentage mentioned in subrule (3)(b) is 5% or a lower percentage specified for this purpose in the open-ended fund company’s instrument of incorporation.

If a resolution is required by these Rules to be passed as an ordinary resolution or a special resolution, the resolution may be passed as a written resolution; and a reference in these Rules to an ordinary resolution or a special resolution includes a written resolution.

If a resolution is proposed as a written resolution under subrule (3), the company must send a copy of the resolution to every shareholder of the company in hard copy form or in electronic form or, send such a copy to all shareholders by making the copy available on a website.

A reference in any Ordinance to the date of passing of a resolution or the date of a meeting is, in relation to a written resolution, the date on which the written resolution is passed under rule 92.

A written resolution of an open-ended fund company has effect as if passed by—

and a reference in these Rules to a meeting at which a resolution is passed or to shareholders voting in favour of a resolution is to be construed accordingly.

This rule does not apply to—

If an open-ended fund company is required to send a copy of a resolution to a shareholder of the company under rule 90(6), it must, on or before the circulation date, send to the auditor, the custodian and the investment manager of the company a copy of—

The validity of the resolution, if passed, is not affected by a contravention of subrule (1).

A written resolution is passed when all eligible shareholders of an open-ended fund company have signified their agreement to it.

A shareholder signifies agreement to a proposed written resolution when the open-ended fund company receives from the shareholder (or from someone acting on the shareholder’s behalf) a document—

A shareholder’s agreement to a written resolution, once signified, may not be revoked.

For the purposes of this rule, the eligible shareholders of an open-ended fund company are the shareholders of the company who would have been entitled to vote on the proposed written resolution on the circulation date of the resolution.

A proposed written resolution lapses if it is not passed before the end of—

The agreement of a shareholder to a proposed written resolution is ineffective if signified after the end of that period.

A provision of an open-ended fund company’s instrument of incorporation is void in so far as it would have the effect that a resolution that is required by or otherwise provided for in an Ordinance could not be proposed and passed as a written resolution.

Nothing in rules 90, 91, 92, 93 and 94 affects any provision of an open-ended fund company’s instrument of incorporation authorizing the company to pass a resolution without a meeting, otherwise than in accordance with those rules.

Subrule (2) applies only if the resolution has been agreed to by all the shareholders of the open-ended fund company who are entitled to vote on the resolution.

An open-ended fund company must keep records comprising—

An open-ended fund company must keep the copies of resolutions or minutes of proceedings under subrule (1) for at least 10 years from the date of the resolution or meeting.

A record of a resolution kept under subrule (1) is evidence of the passing of the resolution.

The minutes of proceedings of a general meeting of an open-ended fund company are evidence of the relevant proceedings.

If an open-ended fund company contravenes subrule (1) or (2), the company commits an offence and is liable on conviction to a fine at level 5 and, in the case of a continuing offence, to a further fine of $1,000 for each day during which the offence continues.

This rule applies to—

The open-ended fund company must deliver a copy of the resolution or order under subrule (1) to the Registrar for registration within 14 days after it is passed or made.

The company must ensure that a copy of the resolution or order of the Court that is for the time being in force is included in or annexed to every copy of its instrument of incorporation issued—

If the resolution is not in writing, a reference to a copy of the resolution in subrules (2) and (3) is to be construed as a written memorandum setting out the terms of the resolution.

If an open-ended fund company contravenes subrule (2), the company, and a liquidator of the company who authorizes or permits, or participates in the contravention, commit an offence and is liable on conviction to a fine at level 3 and, in the case of a continuing offence, to a further fine of $300 for each day during which the offence continues.

If an open-ended fund company contravenes subrule (3), the company, and a liquidator of the company who authorizes or permits, or participates in the contravention, commit an offence and is liable on conviction to a fine at level 3.

An open-ended fund company must keep its records of resolutions and meetings at the company’s registered office or an alternative place in Hong Kong notified to the Registrar.

An open-ended fund company must notify the Registrar of the place at which the records mentioned in subrule (1) are kept. The notice must be in the specified form and delivered to the Registrar for registration within 15 days after the records are first kept at that place.

An open-ended fund company must notify the Registrar of any change (other than a change of the address of the company’s registered office) in the place at which the records mentioned in subrule (1) are kept. The notice must be in the specified form and delivered to the Registrar for registration within 15 days after the change.

Subrule (2) does not require an open-ended fund company to notify the Registrar of the place at which the records mentioned in subrule (1) are kept if they have at all times been kept at the company’s registered office.

If an open-ended fund company contravenes subrule (1), (2) or (3), the company commits an offence and is liable on conviction to a fine at level 5 and, in the case of a continuing offence, to a further fine of $1,000 for each day during which the offence continues.

With effect from the date of incorporation of an open-ended fund company, the person named in the application made under section 112D or 112ZJB of the Ordinance in respect of the company as investment manager is deemed to be appointed as the company’s investment manager for the purposes of section 112Z(1) of the Ordinance. (33 of 2021 s. 23)

Any subsequent appointment of an investment manager of an open-ended fund company must be made by the directors of the company.

An appointment under subrule (2) must not be made unless the Commission has given its approval to the appointment.

An appointment in contravention of subrule (3) is of no effect.

If a person ceases to be an investment manager of an open-ended fund company, other than by virtue of an order of the Court made under section 213 or 214A of the Ordinance, the company must, within 15 days after the cessation, give notice in writing of the cessation to the Commission.

If an open-ended fund company contravenes subrule (1), the company commits an offence and is liable on conviction to a fine at level 4 and, in the case of a continuing offence, to a further fine of $700 for each day during which the offence continues.

An open-ended fund company’s first financial year begins on the first day of its first accounting reference period and ends on the last day of that period.

Every subsequent financial year of an open-ended fund company begins on the date immediately following the end of the previous financial year and ends on the last day of the accounting reference period immediately following the one by reference to which the previous financial year is determined.

An open-ended fund company’s first accounting reference period begins on the date of its incorporation and ends on its primary accounting reference date.

Every subsequent accounting reference period of an open-ended fund company is the period of 12 months beginning immediately after the end of the previous accounting reference period and ending on its accounting reference date, unless the accounting reference period is shortened or extended by the directors after consultation with the auditors of the company.

The directors must not extend the accounting reference period so as to extend the period to longer than 18 months.

Subject to subrule (5), an open-ended fund company’s accounting reference date is the anniversary of a company’s primary

Subject to subrule (6), the directors of an open-ended fund company may specify a new accounting reference date in relation to the company’s accounting reference period and every subsequent accounting reference period.

The directors of an open-ended fund company must not specify a new accounting reference date in relation to an accounting reference period so as to extend the period to longer than 18 months.

An open-ended fund company’s primary accounting reference date is—

A date specified for the purposes of subrule (1)(a) must fall within 18 months after the date of the company’s incorporation.

In this rule—

An open-ended fund company’s directors must prepare a report (annual report) for each financial year.

The company must publish the annual report and provide, on request, a copy of the report free of charge to any shareholder.

On application by the company, the Commission may, if it considers appropriate in the circumstances, exempt the directors from the requirement under subrule (1) and the company from the requirement under subrule (2).

An annual report of an open-ended fund company must, in respect of the financial year to which it relates, contain—

The financial statements for a financial year must—

The accounting standards applicable to the financial statements for the purposes of subrule (2) are the accounting standards specified for this purpose in the OFC code.

An open-ended fund company’s auditor must prepare a report for the shareholders of the company on any financial statements prepared by the directors and included in the annual report of the company during the auditor’s term of office.

An auditor’s report under subrule (1) must state, in the auditor’s opinion—

In preparing an auditor’s report under rule 153(1), the auditor must carry out an investigation that will enable the auditor to form an opinion as to—

An open-ended fund company’s auditor must state the auditor’s opinion in the auditor’s report if the auditor is of the opinion that—

If an open-ended fund company’s auditor fails to obtain all the information or explanations that, to the best of the auditor’s knowledge and belief, are necessary and material for the purpose of the audit, the auditor must state that fact in the auditor’s report.

Every person specified in subrule (2) commits an offence if the person knowingly or recklessly causes a statement required to be contained in an auditor’s report under rule 154(2)(b) or (3) to be omitted from the report.

The persons are—

A person who commits an offence under subrule (1) is liable on conviction to a fine of $150,000.

An auditor’s report must be signed—

An auditor’s report must state the auditor’s name.

An open-ended fund company must ensure that every copy of an auditor’s report laid before the company in general meeting, or otherwise circulated, published or issued by the company, states the auditor’s name.

If an open-ended fund company contravenes subrule (3), the company commits an offence and is liable on conviction to a fine at level 4.

An open-ended fund company must keep accounting records that comply with subrules (2) and (3).

The accounting records must be sufficient—

In particular, the accounting records must contain—

A director of an open-ended fund company who fails to take all reasonable steps to secure compliance with subrule (1) commits an offence and is liable on conviction to a fine of $300,000.

A director of an open-ended fund company who wilfully fails to take all reasonable steps to secure compliance with subrule (1) commits an offence and is liable on conviction to a fine of $300,000 and to imprisonment for 12 months.

If a person is charged with an offence under subrule (4), it is a defence to establish that the person had reasonable grounds to believe, and did believe, that a competent and reliable person—

The provisions (subject provisions) made for receivers and managers of the property of open-ended fund companies are the same as those relevant provisions of Cap. 32, subject to the necessary modifications and the modifications specified in rule 173.

Accordingly—

A reference to a relevant provision of Cap. 32 (however described) in rule 173 in respect of which modification is required under that rule is a reference to a provision that is the same as the relevant provision.

A reference to a relevant provision of Cap. 32 (however described) in the subject provisions is a reference to a subject provision that is the same as the relevant provision.

For the purposes of the subject provisions—

The references in section 79(1), (1A) and (2) of Cap. 32 to the provisions of Part V are to be read as a reference to the subject provisions of Part 11.

The references in section 79(1) and (1A) of Cap. 32 to section 265 are to be read as a reference to the subject provision of Part 11 that is the same as section 265 of Cap. 32.

If a person obtains an order for the appointment of a receiver or manager of the property of an open-ended fund company or appoints such a receiver or manager under the powers contained in an instrument, the person must, within 7 days after the date of the order or of the appointment under the powers (as the case requires), deliver to the Registrar for registration, a notice including a statement of that fact.

A notice under subrule (1) must include—

If a person enters into possession of the property of an open-ended fund company as mortgagee, the person must, within 7 days after the date of entering into possession, deliver to the Registrar for registration, a notice including a statement of that fact.

A notice under subrule (3) must include—

A notice under subrule (1) or (3) must be—

If a person contravenes subrule (1) or (3), the person commits an offence and is liable on conviction to a fine at level 3 and, in the case of a continuing offence, to a further fine of $300 for each day during which the offence continues.

If a person appointed as receiver or manager under rule 174(1) ceases to act as receiver or manager, the person must, within 7 days after the date of the cessation, deliver to the Registrar for registration, a notice including a statement of the cessation.

If a person mentioned in rule 174(3) goes out of possession of the property, the person must, within 7 days after going out of possession, deliver to the Registrar for registration, a notice including a statement of that fact.

If there is any change to the particulars of the person included in a notice delivered to the Registrar under rule 174(1) or (3), the person must, within 15 days after the date of the change, deliver to the Registrar for registration, a notice including a statement of the change.

Subrule (3) does not apply to—

A notice under subrule (1), (2) or (3) must be in the specified form.

If a person contravenes subrule (1), (2) or (3), the person commits an offence and is liable on conviction to a fine at level 3 and, in the case of a continuing offence, to a further fine of $300 for each day during which the offence continues.

In this Part—

For the purposes of paragraphs (e) and (i) of the definition of relevant provisions of Cap. 32—

An open-ended fund company may be wound up under this Part (voluntary winding up) and the provisions (subject provisions) made for the voluntary winding up of open-ended fund companies and related or incidental matters are the same as those relevant provisions of Cap. 32, subject to the necessary modifications and the modifications specified in Division 2.

Accordingly—

A reference to a relevant provision of Cap. 32 (however described) in Division 2 in respect of which modification is required under that Division is a reference to a provision that is the same as the relevant provision.

A reference to a relevant provision of Cap. 32 (however described) in the subject provisions is a reference to a subject provision that is the same as the relevant provision.

For the purposes of the subject provisions—

A reference to general rules in sections 243(2) and 283(4) of Cap. 32 and in the item in the Twelfth Schedule to Cap. 32 for an offence under section 283(4) is to be read as a reference to the provisions of the Winding-up Rules referred to in paragraph (i) of the definition of relevant provisions of Cap. 32.

Section 257 of Cap. 32 is to be read as if “as an unregistered company” were inserted after “wound up by the court”.

In this rule—

Section 262B(3) of Cap. 32 is to be read as if—

Section 262D(2)(a) of Cap. 32 is to be read as if—

Subject to subrules (2) and (3), a sub-fund of an open-ended fund company may be wound up under this Part as if it were a separate open-ended fund company.

A sub-fund of an open-ended fund company is to be treated as a separate legal person for the purposes of winding up of the sub-fund.

In relation to the winding up of a sub-fund of an open-ended fund company, the appointment of the liquidator and the powers and duties of the liquidator are confined to the sub-fund that is being wound up and its affairs, business and property.

For the purposes of subrule (1), a reference in the subject provisions relating to the winding up of an open-ended fund company to the following words is to be read as follows—

An open-ended fund company with sub-funds may not sue or be sued in respect of a sub-fund of the company or exercise any rights of set-off in relation to the sub-fund after the appointment of a liquidator or provisional liquidator in respect of the winding up of the sub-fund.

If the liquidator of an open-ended fund company is required under the subject provisions to summon a general meeting of the company, in the event of the winding up of the company continuing for more than one year, the liquidator must, within 7 days of summoning the meeting, notify the Commission in writing of the meeting.

If the liquidator of an open-ended fund company is required under the subject provisions to call a general meeting of the company for the purpose of laying before the company an account of the winding up of the company, the liquidator must, within 7 days of summoning the meeting, notify the Commission in writing of the meeting.

This rule applies if the Commission cancels the registration of an open-ended fund company under section 112ZH of the Ordinance.

The company is dissolved on the date of the cancellation of the registration of the company or such later date specified by the Commission in a notice of cancellation under section 112ZH of the Ordinance.

This rule applies if the Commission cancels the registration of an open-ended fund company under section 112ZI of the Ordinance.

The company is dissolved on—