Retaining the two branches of the profession but eliminating the practices that can no longer be justified would both benefit consumers and continue to provide a choice for legal practitioners. However, barristers have continued to oppose modernisation of the profession, and so far these proposals have only been adopted to a small extent.

In addition to its structural problems, Hong Kong's legal sector is plagued by under-capacity. The average waiting time between a request for a court date and the actual hearing is 216 days in the civil court, although time spent on preliminary matters means that the average litigant will have to wait for about 400 days to have a case heard.

A recent paper on civil justice reform said the number of judges in Hong Kong had not changed significantly in the past decade despite sharp increases in workload.

The caseload of the High Court has increased 82% since 1991, so that judges have thus had to cope with higher pressure and bigger workloads. The panel of Masters will deal with work in the High Court that encompasses summary judgments, where a case is instantly disposed of, and interlocutory applications, ie technical queries that don't require a court hearing as such. They will also dealing with so-called 'taxation', meaning the scrutiny of legal bills to allocate costs between litigants.

Evidently wanting yet more work, in September, 2003, the Hong Kong Bar Council met with the Chinese Ministry of Justice, in order to attempt to persuade the Chinese authorities to allow Hong Kong's barristers the same rights to practice on the mainland as have been afforded to the territory's solicitors.

Under the auspices of the Closer Economic Partnership Agreement (CEPA), Hong Kong lawyers will be permitted to study for qualifications as mainland lawyers with a view to practicing there. However, SAR-based solicitors are prohibited from practising any kind of litigation work, and barristers have been excluded from the agreement altogether.

Alan Leong SC, head of the Bar Council's mainland practice relations committee suggested that there were several reasons, both socio-economic and political, why barristers have been excluded from the draft agreement thus far. He observed that: "Litigation is the bread and butter for most mainland China lawyers," and went on to explain that: "The Chinese mainland does not practice adversarial or hostile litigation like we do. I do not rule out that our style and concepts of litigation would have an impact." However, he added that in light of the fact that the SAR is prepared to allow mainland lawyers to practice litigation in the territory, a degree of reciprocity should be expected.

In December, 2003, it was announced that, as from January 1, 2004, Hong Kong law firms will be permitted to form alliances with Chinese firms. Major international law firms took great notice of this development, which was expected to lead to a major increase in the size and prestige of the Hong Kong legal profession. However, only lawyers born in Hong Kong are allowed to re-qualify to practice local law on the mainland, and even they are only permitted to practice commercial law. Many US and UK law firms were nonetheless said to be looking to register locally as Hong Kong practices in order to take advantage of the opening-up of the Chinese legal sector.

Finally, in June, 2004, a working party was established to examine the ending of the monopoly held by the territory's barristers on conducting trials in the High Court. Although the announcement that a think-tank was to examine the issue was cautiously welcomed by solicitors, many within the legal community were doubtful that this new initiative would yield positive results, or even cover new ground compared to earlier reviews. Among other concerns, solicitors feared that the choice of appointments to the working party was likely to influence its conclusions, with the possible appointment of more traditional judges likely to swing the debate in favour of barristers retaining their monopoly.

In August, 2004, Hong Kong law firm Woo Kwan Lee & Lo became the first SAR-based organisation to create an alliance with a Chinese law firm under the auspices of the Closer Economic Partnership Arrangement (CEPA) between the jurisdiction and the mainland. Under the alliance, Woo Kwan and the Beijing-based Grandall Legal Group were to share office costs, resources, and staff. The move was closely watched by the various international law firms who see the alliances permitted under CEPA as a potential gateway into the Chinese market, which has traditionally been off-limits to them due to restrictive practice rules.

Chinese law firm Duan and Duan, the first independent partnership law firm to establish itself in China, announced its expansion into the Hong Kong market, with the opening of its first office in the city in May 2007.

The main focus of the firm's business will be to help international companies wishing to invest in China to navigate the country's complex legal, cultural and linguistic environment. It plans to provide advice in the fields of corporate law, international investments and trade, finance, mergers and acquisitions, arbitration and litigation.

Duan Duan has partnered with J. Lai and Company, an established Hong Kong law firm, to further enhance their cross-border strengths and connections.

Speaking at the opening, Mr Duan Qi-hua, a partner in Duan and Duan observed that: “Hong Kong is the ideal base to set up operations. The city provides a platform for the international community to gain access to opportunities in China. Equally Chinese companies are able to use Hong Kong to launch themselves globally.”

Duan observed that since China’s accession to the World Trade Organisation, a greater number of foreign companies have been looking to invest in the Mainland. The country’s new found confidence was also reflected in the number of Chinese companies looking to expand on to the international stage.

Hong Kong Solicitors 'Accounts' Rules

• extend the government's power to attack money laundering associated with drug trafficking and other serious offences; and
  
• impose statutory duties on providers of financial and professional services to disclose and to make proper inquiries into suspicious transactions.

It is also an offence if a person who knows or suspects that any property represents the proceeds of drug trafficking does not report his knowledge or suspicion to the authorities.

Therefore the onus is on financial institutions and professionals to act as watchdogs and control systems have been established by many companies to ensure that they are fulfilling their responsibilities under the new amendments. However, no offence will have been committed if proper disclosure is made before the prohibited act occurs and the act is done with the consent of the authorised officer. Similarly, if disclosure is made to an authorised officer voluntarily and soon after the act has been committed, there is no offence. It is an offence to disclose anything which is likely to prejudice an investigation into the suspected money laundering.

The new amendments ensure that disclosures will not be treated as a breach of any restriction imposed by contract (such as a bank's duty of confidentiality to its customers). Those making any disclosures will not be liable for any loss arising from the disclosure even if the suspicion is later shown to have been unfounded, although reasonable.

Furthermore, the amendments require money changers and remittance agents to follow anti-money laundering measures such as customer identification and keeping transaction records for transactions over HKD8,000. This has helped to prevent criminals from using non-bank financial busineses as conduits for money laundering.

Informants are not required to reveal in civil or criminal proceedings that they have made disclosures under the legislation.

The Hong Kong Monetary Authority, Hong Kong Stock Exchange and Securities and Futures Commission have also established guidelines for their members aimed at helping them to avoid facilitating money laundering.

In February, 2004, the Hong Kong Monetary Authority (HKMA) urged banks in the jurisdiction to be alert to the possibility of money laundering as they geared up to offer yuan-denominated banking services. "Participating banks are requested to heighten the awareness of their staff involved in such business to possible money laundering transactions," the regulator announced.

In order to reduce the possibility of money laundering activity taking place, the HKMA ordered banks to record whether yuan deposits are made in cash, or via the conversion of other currencies. It also urged the financial institutions to keep track of multiple accounts opened by the same customer, and to ensure that the 20,000 yuan per day exchange limit is not breached by spreading the transactions across several accounts.

In June of that year, the HKMA issued a supplement to the territory's anti-money laundering guidelines, setting out the latest "Know-Your-Customer" principles, taking account of the requirements of the paper on "Customer Due Diligence for Banks" issued by the Basel Committee on Banking Supervision in October 2001 and the revised Forty Recommendations issued by the Financial Action Task Force on Money Laundering in June 2003.

Under the guidelines, banks and financial service providers are urged to subject the transactions of higher risk customers to enhanced due diligence. Those deemed by the HKMA to fall into the high risk category include politically exposed persons, correspondent banks from "non-cooperative jurisdictions", and offshore companies established in order to disguise beneficial ownership.

In February, 2005, Financial Secretary, Henry Tang revealed that the territory's government was seeking to raise its game in combating money laundering and terrorist financing. He said: "We have already started to put in place the latest recommendations of the Financial Action Task Force (FATF), which will become the new international standard on anti-money laundering."

The Financial Secretary also stressed the need for cross-border cooperation, explaining that: "While New York, London and Hong Kong must do our best individually to protect their markets against money launderers or terrorists, none of us can really succeed on our own. To be effective, all jurisdictions around the world must work together to create a security network so strong and so tight that criminals cannot breach our defence."

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Hong Kong Financial Services Law

Until 1964 there were virtually no regulations governing the financial sector in Hong Kong. A banking crisis in the 1960s led the authorities to enact the Banking Ordinance 1964, which introduced basic standards such as minimum capital requirements and rudimentary disclosure laws. However, bank failures, caused by poor management and excessive investment in the real estate market in the early 1980s, coupled with the stock market crash in 1987, resulted in a complete overhaul of Hong Kong financial market regulations. The country now has a transparent legal and regulatory environment that has facilitated its role as a modern regional and international financial center.

Under the Sino-British Joint Declaration on the Future of Hong Kong, Chinese authorities were committed to enact the Basic Law of the Hong Kong Special Administrative Region. The Basic Law is the legal basis for the "One Country, Two System" guarantee and provides for the continuance of Hong Kong’s system of common law and free market economic system after July 1, 1997. The Law stipulates that the Hong Kong dollar will remain freely convertible; that markets for foreign exchange, securities, futures, and other financial products will remain open; and that no controls will be placed on the flow of capital into or out of Hong Kong.

Three government agencies are responsible for regulating Hong Kong’s financial market: the Hong Kong Monetary Authority (HKMA), the Securities and Futures Commission (SFC), and the Insurance Authority. In addition to being regulated and supervised by the HKMA, banks are required to become members of and adhere to the rules of the Hong Kong Association of Banks (HKAB).

The Hong Kong Monetary Authority

Hong Kong has no central bank as such, but the HKMA does assume many of the responsibilities typically assigned to a central bank, including ensuring the safety and soundness of the banking system and the stability of the currency.

Three private banks—the Hongkong Shanghai Bank, the Bank of China, and Standard Chartered—are authorized to issue HK dollars. Under the currency board system, these banks are allowed to issue HK dollars only upon depositing US dollars in the Exchange Fund, which is regulated by the HKMA. In 1990, the HKMA began to issue Exchange Fund Bills and, in 1993, Exchange Fund Notes, which are both HK dollar debt securities. The issuance of debt securities through open-market operations provides the HKMA with a mechanism for adjusting interbank liquidity.

The clearing and settlements system in Hong Kong changed in April 1997. Until that time, the Hong Kong Shanghai Bank managed the Clearing House of the Hong Kong Association of Banks and settled interbank payments. The Clearing House is now managed by Hong Kong Interbank Clearing Limited, which is jointly owned by HKMA and HKAB. Under the new system, interbank payments are cleared through the Exchange Fund.

In a circular released in July, 2002, HKMA outlined the principal points of new regulations governing securities business undertaken by banks.

Currently, Hong Kong's banks are known as 'exempt dealers', because their securities departments are not regulated by the Securities and Futures Commission. However, under the Banking (Amendment) Ordinance 2002 and the Securities and Futures Ordinance implemented in 2003, a raft of new rules governing banks' securities business have been introduced.

The main points of the regulations, as outlined in the HKMA circular are as follows:

Under this regulatory regime, the Monetary Authority is in charge of the day-to-day supervision of banks' securities divisions, but cases of suspected malpractice are handed to the Securities and Futures Commission for investigation.

"This is in line with the concept that the SFC remains the ultimate authority to regulate the securities and futures industry," the circular explained.

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Hong Kong The Securities And Futures Commission

The Stock Exchange of Hong Kong (SEHK) operates as a private entity. Thus when the stock market crashed in 1987, the Securities Commission had no legal authority to intervene in the affairs of the SEHK. The regulatory infrastructure for the securities industry has since been revamped and, in 1989, the Securities and Futures Commission Ordinance was enacted. The Ordinance provides the legal basis for the SFC to supervise and regulate the securities industry. The SFC now has the authority to take actions necessary to protect the safety of the securities market and to prosecute individuals who breach securities market ordinances and codes.

There were four stock exchanges in Hong Kong until 1986, when the four were merged into the Stock Exchange of Hong Kong (SEHK) in an effort to consolidate management and control of the market. By the end of 1996, the SEHK was the second largest stock exchange in Asia and the seventh largest stock exchange in the world, with total market capitalization of USD446 billion. The Hong Kong Futures Exchange offers futures contracts in finance, properties, utilities, and commerce and industry.

After the stock market crash of 1987, the SFC was charged with overhauling the regulations that govern securities market participants. Applicants for a license to deal in securities or operate as an investment adviser are now required to meet the "fit and proper person" criterion. Applicants seeking a dealer’s license must also have minimum net capital of HKD5 million. Although there is no deposit insurance for bank customers, there is a compensating fund for individuals whose brokers default on funds owed.

In 1991 the Securities (Insider Dealing) Ordinance was amended, resulting in higher penalties for insider trading. Fraud and misrepresentation are also punishable by the SFC. Another ordinance enacted in 1991 calls on a company’s directors and executives, as well as those who acquire more than 10% of a company’s voting shares, to publicly disclose their dealings. Firms seeking to list on the SEHK must make a prospectus publicly available. The SFC has the authority to determine which clearinghouses are permitted to settle accounts and their rules of operation in order to ensure a sound clearinghouse system.

Foreign-owned financial services firms can engage in securities market activities in Hong Kong in one of two ways. Firms that do not deal in the securities market as their primary business may engage in securities market transactions through an "exempt" license. Foreign-owned securities firms are also free to establish branches or subsidiaries in Hong Kong subject to approval from the SFC. Securities firms offer a wide range of services, from managing portfolios to selling foreign mutual funds to administering local pension plans.

In the late 1990's the HKMA conducted a thorough study of the SAR's banking sector and drew up a package of policy measures which were installed over a three-year period beginning in 2000. The details of these reform measures and the implementation timetable were contained in the HKMA's Policy Response to the Banking Sector Consultancy Study.

In November 2000 the Hong Kong government introduced the Composite Securities and Futures Ordinance which combined and replaced all ten pre-existing pieces of securities and futures legislation. The law, which was passed in 2002 and came into effect in 2003 gives the Securities and Futures Commission (SFC) the power to regulate Internet trading. In addition the SFC is also able to seize the working papers of market professionals during investigations.

An independent non-statutory body, known as the Process Review Panel, has been established to ensure that the SFC's internal operations, including its investigative and disciplinary procedures, are fair and consistent.

The Ordinance makes the SFC responsible for regulating the securities business of banks; their securities departments were previously regulated by the Hong Kong Monetary Authority, not by the SFC, which regulates brokers. The law allows the SFC to penalise banks if their securities businesses are found to be in breach of regulations while allowing the HKMA to continue to operate as the frontline regulator conducting routine inspections.

In August, 2005, the SFC released the consultation conclusions of a review of the territory's Code on takeovers, mergers and share repurchases, the main revisions to which took effect on October 1, 2005.

The main revisions are:

The SFC also consulted the public about whether the Code should be amended to provide for whitewash waivers of general offer obligations triggered as a result of on-market share repurchases.

The majority of respondents disagreed that such waivers should be permitted. Some suggested that the uncertainties as to the price and timing of on-market repurchases contributed to the undesirability of such an amendment.

One respondent emphasised that, in light of the prevalence of the controlling shareholder environment in Hong Kong, Hong Kong regulations have historically and justifiably placed greater attention on ensuring that the interests of minority shareholders are not unfairly prejudiced than regulations in other markets.

There was a concern that minority interests would be prejudiced in the guise of increasing shareholder value if the proposal was allowed. The Takeover Executive agreed with these concerns and believes that it is in the overall best interests of minority shareholders not to amend the Code in this respect.

Mr Peter Au-Yang, SFC’s Executive Director of Corporate Finance, noted that: "By keeping the Code up-to-date with market developments and international practice, the changes help to ensure continued fair treatment for shareholders who are affected by takeovers and mergers."

In September, 2005, the Jersey Financial Services Commission and Hong Kong’s securities and futures market regulator, the Securities and Futures Commission, signed a Letter of Intent which provides a framework for enhanced cooperation between the two regulatory authorities.

The Letter of Intent provides a formal basis for both regulators to work towards several goals, including:

The authorities agreed to establish a bilateral working group to work towards the achievement of objectives set out in the Letter of Intent.

Both the Commission and the SFC are members of the International Organisation of Securities Commissions (IOSCO) and signatories of the IOSCO Multilateral Memorandum of Understanding. The Letter of Intent is signed in the spirit of mutual cooperation between securities regulators fostered by IOSCO.

David Carse, Director General of the Commission noted that: “I am delighted to sign this Letter of Intent with the Hong Kong SFC. The Commission considers that co-operation under the Letter will facilitate access to Hong Kong’s markets for Jersey investment products, and also help to develop the range of products that are available for distribution in Jersey. It will also provide a more formal basis for exchanging views with an important Asian supervisor on matters of common interest.”

Andrew Sheng, Chairman of the SFC added that: “The SFC is committed to facilitating the development of deeper and broader investment markets globally. We are delighted to sign this Letter of Intent with the Jersey Financial Services Commission, our second non-Asian partner in this endeavour. Jersey is strategically located and plays an important role in the European investment products market, and therefore ideally placed to explore with the SFC the means of achieving cross-border distribution of investment products between our respective markets to our mutual benefit.”

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Hong Kong Banking Law

The Banking Ordinance is the basis of the legal framework governing the banking sector. The Bank Advisory Committee, which is composed of members of public-sector and private financial institutions, advises government authorities on issues concerning the Banking Ordinance.

The Banking Ordinance was amended in 1986 to authorize the Commissioner of Banking to regulate the banking sector, set minimum capital standards, and limit loans to customers and bank employees. Amendments to the Ordinance in 1995 gave the HKMA broader powers, including responsibility for all matters pertaining to the authorization of banks. The HKMA can suspend or revoke the license of a bank found to be in violation of regulations designed to protect the safety and soundness of the financial system. It is also authorized, after consultation with the Financial Secretary of Hong Kong, to take over a financial institution that is unable to make payments or if it is deemed in the public interest to take control of the firm.

There is a three-tier banking system of "authorized institutions" in Hong Kong: licensed banks, restricted-license banks, or deposit-taking companies. Only licensed banks are permitted to accept deposits of any size and maturity and to offer checking and savings accounts. They effectively function as commercial banks. Restricted-license banks are limited to accepting deposits of more than HKD500,000 and thus offer investment banking services. Deposit-taking companies are only authorized to accept deposits over HKD100,000 that have an initial maturity of at least three months. Hong Kong adheres to the Basle principles for bank supervision.

The approach is one of ongoing supervision and includes on-site reviews of operations and financial records and off-site reviews of financial statements and reports. Banks are required to be incorporated and publish detailed audit reports as well as monthly returns showing assets and liabilities. In addition to information on their balance sheet and quality of assets, banks are required to disclose inner reserves, realized profits, and net assets. Authorities meet annually with internal and external auditors to review each institution’s audit and determine if the institution is in compliance with prudential standards and the Banking Ordinance. The Banking Ordinance, in turn, provides a legal basis for enforcing the Basle standards. Violation of the Banking Ordinance is punishable by fines, imprisonment, or both.

The Banking Ordinance restricts the use of the word "bank" to those institutions that are either licensed or restricted-license banks. In the latter case, the word "bank" must be accompanied by either "merchant" or "investment." Only a "fit and proper person" can be issued a banking license, and there exist controls regarding the ownership and management of an authorized financial institution. An authorized institution is required to inform the HKMA if it makes changes to any documents that outline the institution’s procedures. Approval is also required before there can be any changes in a bank’s ownership.

The Banking Ordinance also sets forth minimum capital requirements for authorized institutions. Locally incorporated banks must have paid-in capital equal to USD388 million and net assets of USD518 million dollars for authorization to operate a licensed bank. Applicants for a restricted-license bank must have paid-in capital equal to USD12.8 million.

Authorized institutions are not permitted to lend more than 25% of their capital base to a single customer or group of related customers, nor are they allowed to hold more than 25% of shares in other companies. No more than 10% of an authorized institution’s capital base may be used for unsecured loans.

The HKMA adopted BIS capital-adequacy guidelines in 1989. The minimum standard according to BIS recommendations is a capital-adequacy ratio of 8 percent. The national requirement in Hong Kong is also 8%, although some banks are required to maintain 12% and some nonbanks at least 16%. The actual risk-based capital-adequacy ratio at the end of 1995 was 17.5%. In December 1996, the HKMA implemented reporting requirements that direct banks to address market risk in calculating their capital-adequacy ratio.

New Banking (Capital) Rules came into effect in January, 2007, and are the implementing Rules for Basel II, the new international standard for banks' capital adequacy.

They set out in detail the different approaches that can be adopted for calculating the capital charge for credit, market and operational risks.

They were issued under a new rule-making power provided under the Banking (Amendment) Ordinance 2005, and replaced the previous regulatory capital regime set out in the third schedule to the Banking Ordinance. This was to be followed by a consultation on the Banking (Disclosure) Rules.

Foreign-owned commercial banks can enter the Hong Kong banking industry by establishing a branch or by acquiring ownership of a local bank. Foreign-owned firms must apply for a license to enter the financial services market. License approval is subject to four criteria: foreign-owned firms must (1) have net assets of USD16 billion, (2) be incorporated in a country that applies the Basle principles for bank supervision, (3) have approval from their home country to operate a branch in Hong Kong, and (4) come from a country that offers reciprocal access to Hong Kong banks. Of the 224 authorised institutions in Hong Kong in 2004, 197 were beneficially owned by interests from over 30 countries. In addition, there were 89 local representative offices of overseas banks in Hong Kong. In February 2009 there were 197 authorized institutions and 72 representative offices.

Hong Kong does maintain restrictions on the number of branches that foreign banks are permitted to operate. In 1994, authorities relaxed the one-branch limit for foreign banks, allowing them to open one additional office in a separate building from the location of their main branch; however, the additional office is to be used only for "back office" functions such as processing and settling transactions conducted in the main branch office. Fully licensed banks (commercial banks) are allowed to establish operations in Hong Kong only as a bank branch. Restricted-license banks (investment banks) are permitted to open branches or subsidiaries. Licenses for deposit-taking companies are extended only to locally incorporated subsidiaries.

In the light of China's accession to the WTO, in December 2001 the Hong Kong Monetary Authority reduced the USD16 billion minimum asset requirement for foreign banks, bringing the amount needed down to HKD5 billion, in line with the requirements for local institutions. As well as encouraging foreign financial institutions to put down roots in the SAR, the authorities hope that this move will encourage the mainland to reduce its minimum asset requirements - currently set at USD16 billion - which would make it easier for Hong Kong banks to establish there.

'These proposals would further open up Hong Kong's banking sector to allow a broader range of domestic and international institutions to participate in the Hong Kong markets as full licence banks,' explained the Deputy Chief Executive of the HKMA, David Carse, adding: 'We believe these incentives will help to rationalise the authorisation and market entry system in Hong Kong and will also enhance the status of Hong Kong as an international financial centre.'

Two accounting standards came into force in Hong Kong in January 2005 . Hong Kong Accounting Standards 32 and 39 are detailed and prescriptive in nature, requiring banks to estimate loan provisions based on future cash flows rather than the current guidelines issued by the Hong Kong Monetary Authority, and review the basis for general provisioning.

Most banks hold a general provision of around 1% of total advances, as required by the Hong Kong Monetary Authority. The new standard requires this to be based on an analysis of historical loss experience and may lead to a significant write back of general provisions.

The standards are the Hong Kong Society of Accountants' final step in achieving full convergence with International Financial Reporting Standards. In achieving full compliance Hong Kong banks will be more comparable with their international peers, facilitating easier access to cross border capital markets.

Electronic Banking

As a bank regulator, the primary objective of the Hong Kong Monetary Authority (HKMA) in respect of the developments of electronic banking (e-banking) is to ensure that the regulatory framework for e-banking keeps up with the industry and technological developments without stifling innovation.

Since 1997, the HKMA has been issuing a series of circulars to set out its regulatory approach on e-banking services and to provide authorised institutions with recommendations on the risk management for these activities. While institutions do not need to seek formal approval from the HKMA to offer their e-banking services, they should discuss their plans and risk management measures with the HKMA in advance.

Among the issues discussed, the arrangements adopted by institutions to ensure adequate information security for their services are one of the key focuses of the HKMA. While absolute information security does not exist, institutions are expected to implement information security arrangements that are "fit for purpose", i.e. commensurate with the risks associated with the types and amounts of transactions allowed, the electronic delivery channels adopted and the risk management systems of individual institutions.

Furthermore, the HKMA expects senior management of institutions to commission periodic independent assessments of the information security aspects of their e-banking services. The HKMA expects such independent assessments to be carried out by trusted independent experts before launch of the services, and thereafter at least once a year, or whenever there are substantial changes to the risk assessment of the services or major security breaches. To provide further recommendations to the senior management of institutions on information security, the HKMA issued in July 2000 a Guidance Note on Management of Security Risks in Electronic Banking Services.

Internet Advertisements for Deposits

Under the Banking Ordinance, overseas-incorporated institutions (including virtual banks) intending to solicit deposits from members of the public in Hong Kong would not be required to be authorised, provided that the deposits are placed overseas. However, section 92 of the Banking Ordinance makes it an offence for any person, other than an authorised institution, to issue an advertisement or invitation to members of the public in Hong Kong to make a deposit, even if it is made outside Hong Kong, unless the disclosure requirements in the Fifth Schedule to the Banking Ordinance are complied with. They should include a warning in their advertisements that they are not authorised under the Banking Ordinance and hence are not subject to the supervision of the HKMA. The advertisements must also contain certain specified information about the overseas institutions and the deposit scheme being advertised. The objective is to ensure that material facts are available to enable prospective depositors to make their own judgement on whether to place a deposit with the institutions concerned.

The HKMA say that advertisements placed through the internet should be governed by the same principles.

Authorisation of Virtual Banks

A virtual bank is a company which delivers banking services primarily, if not entirely, through the internet or other electronic channels. The term does not refer to existing licensed banks which make use of the internet or other electronic means as an alternative channel to deliver their products or services to customers.

In May 2000, the HKMA issued a Guideline on the Authorisation of Virtual Banks under section 16(10) of the Banking Ordinance. The Guideline sets out the principles that the HKMA will take into account in deciding whether to authorise virtual banks. The main principle is that the HKMA will not object to the establishment of virtual banks in Hong Kong provided that they can satisfy the same prudential criteria that apply to conventional banks. In summary, virtual bank applicants must satisfy the following requirements:

• maintenance of a physical presence in Hong Kong;
  
• maintenance of a level of security appropriate to their proposed business;
  
• establishment of appropriate policies and procedures to deal with the risks associated with virtual banking;
  
• development of a business plan which strikes an appropriate balance between the desire to build market share and the need to earn a reasonable return on assets and equity;
  
• clearly setting out in the terms and conditions for their services the rights and obligations of customers; and
  
• compliance with the HKMA's guidelines on outsourcing of computer operation.

• the introduction of a new section to require Authorized Institutions (AIs), which include licensed banks, restricted licence banks and deposit-taking companies to give reasonable notice, normally not less than 2 months, to customers before closing a branch. The notice should be prominently displayed on the branch premises and should contain details of how the AI may continue to provide services to customers and provide contact information in case of enquiries by customers;
• the rewriting of the provisions relating to guarantees and third party securities to make them more reader friendly. These provisions were introduced in 2003 to enhance the protection of guarantors. One of the requirements is that AIs should offer a choice between a limited or unlimited guarantee to any person proposing to give a guarantee or third party security. In the case of an unlimited guarantee, AIs are required to notify the guarantor as soon as reasonably practicable when further facilities are extended to the borrower;
• the updating of the chapter on “stored value cards” to offer more protection to stored value cardholders through various measures, including the provision of channels to check previous transactions and the requirement to reimburse the cardholder as soon as reasonably practicable where a transaction cannot be completed successfully but value has been deducted from the stored value card;
• the enhancement of the provisions relating to security advice for cards and e-banking services to provide more guidance to facilitate compliance by AIs as well as to make it easier for customers to understand what they should, and should not, do in order not to compromise the security of their card and e-banking transactions;
• the expansion of the provision in relation to advertising and promotional materials of AIs to make it clear that where benefits offered are subject to conditions, such conditions should be clearly displayed in the advertisement wherever practicable, or the advertisement should include reference to the means by which further information may be obtained; and
• the expansion of the provision regarding notice on dormant account charges to require AIs to also advise customers of what can be done to avoid such charges or where they can obtain such information.

Hong Kong Investment Management Law

The Intermediaries and Investment Products Division of the Securities and Futures Commission is responsible for regulating the marketing to the public of unit trusts, mutual funds and other collective investment schemes.

The Investment Products Department has regulatory responsibility for unit trusts, mutual funds, investment-linked assurance schemes, pooled retirement funds and immigration-linked investment schemes as well as other forms of investment arrangements. These products require authorisation by the SFC before they can be marketed to the public in Hong Kong. The Department vets applications for such authorisation and monitors ongoing compliance with regulatory requirements. The SFC has issued numerous sets of Rules and Codes of Practice for the guidance of the investment management sector, including:

Fund Manager Code of Conduct, March 2003
http://www.sfc.hk/sfcRegulatoryHandbook/EN/displayFileServlet?docno=H207

Code on Pooled Retirement Funds First Edition pursuant to Securities and Futures Ordinance (Cap. 571) April 2003
http://www.sfc.hk/sfcRegulatoryHandbook/EN/displayFileServlet?docno=H211

Code on Real Esate Investment Trusts, June 2005
http://www.sfc.hk/sfcRegulatoryHandbook/EN/displayFileServlet?docno=H382

Code on Unit Trusts and Mutual Funds, July 2008
http://www.sfc.hk/sfcRegulatoryHandbook/EN/displayFileServlet?docno=H507

Code on Pooled Retirement Funds, July 2008
http://www.sfc.hk/sfcRegulatoryHandbook/EN/displayFileServlet?docno=H510

Code on Investment-Linked Insurance Schemes, July 2008
http://www.sfc.hk/sfcRegulatoryHandbook/EN/displayFileServlet?docno=H509

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