Who has to register?
Any BVI/CI Company which has an established a place of business in Hong Kong is required to register under Part XI of the Companies Ordinance. The definition of ‘place of business’ is wide and includes a share transfer office and a share registration office. Practically, any company conducting business from premises in Hong Kong whether owned, leased or licensed, will satisfy the requirement of having a place of business in Hong Kong. Such registration in Hong Kong permits local creditors and their advisers to view the BVI/CI Company’s particulars and constitutional documents.
Initial registration obligations
The Companies Ordinance requires a BVI/CI Company to submit the specified Form N1 with the Companies Registry within one month of establishing a place of business in Hong Kong. The Form N1 will include the following particulars of the BVI/CI Company: name; place of incorporation; date of establishing the place of business and its address; address of principal place of business in Hong Kong; identity of secretary and directors, together with dates of appointment and particulars; identity of local ‘authorised representative’ appointed to accept service of process, together with particulars; and details of the registered office and principal place of business overseas.
The Form N1 should be accompanied by certified copies of the BVI/CI Company’s constitutional documents, certificate of incorporation; and the latest published financial statements. Note, however, there is an exemption from this requirement if the BVI/CI Company: (i) is not required by the law of its place of incorporation or by any other applicable jurisdiction or any stock exchange or regulator in such jurisdictions to publish financial statements; or (ii) has been incorporated for less than 18 months and has not yet published financial statements.
In addition to the Form N1 and its supporting documents, a Form IRBR 2 must be submitted to the Companies Registry under the new ‘one-stop’ service. The Form IRBR 2 is a one-page notice to which is passed to the Business Registration Office of the Inland Revenue Department (IRD) for tax purposes.
Once the Companies Registry has received all the required documents to its satisfaction, a Certificate of Registration as a ‘non-Hong Kong company’ will be issued, certifying that it is registered under the Companies Ordinance. In addition, a Business Registration Certificate will be issued in respect of the registration under the Business Registration Ordinance (Cap 310). The failure to register will subject the company to possible fines.
Post registration obligations
After registration, continuing obligations are imposed on BVI/CI Companies and they must keep the Companies Registry and Business Registration Office updated of certain changes. For example, any changes to the information in Form N1 and the accompanying documents should be filed with Companies Registry within one month of the change. A BVI/CI Company should also annually file an annual return, supported by the most recent financial statements (where applicable).
A BVI/CI Company that creates a charge over property in Hong Kong or acquires property in Hong Kong that is subject to a charge is required to register the charge and provide a copy of the relevant instrument creating the charge to the Companies Registry.
A BVI/CI Company must keep current the appointment of an authorised representative throughout the time it maintains a place of business in Hong Kong, and also for a further year after the date on which the company ceases to have a place of business in Hong Kong. There are also requirements that a BVI/CI Company must conspicuously exhibit outside its place of business certain information including its name and place of incorporation or formation. Certain information including its name and place of incorporation or formation must also be stated legibly on all bill-heads, letter paper, notices, prospectuses and other official publications issued by it.