Companies (Amendment) Ordinance 2010 and Business Registration (Amendment) Ordinance 2010

New amendments pave the way for e-incorporation and e-filing of documents with the Companies Registry and enable one-stop company and business registration services.

On 21 February 2011, Parts 2 and 5 of the Companies (Amendment) Ordinance 2010 (the “CO Amendment”) relating to company formation and electronic communications with the Registrar of Companies (the “Registrar”) came into effect.  The CO Amendment paves the way for electronic filing of documents with the Companies Registry (the “Registry”) and the electronic incorporation of companies in Hong Kong.  With the commencement of the Business Registration (Amendment) Ordinance 2010 (the “BR Amendment”) today, the Registry and the Inland Revenue Department are jointly implementing a one-stop company and business registration service and a one-stop notification of changes of certain company particulars.

CO Amendment

The CO Amendment provides for electronic communications with the Registrar.  Documents may now be signed using digital signatures or passwords and delivered to the Registrar in electronic form.  The first stage of the electronic submission of documents (implemented today) is currently limited to specified forms/documents for company incorporation and the change of name of Hong Kong companies. 

Before taking advantage of the procedure for electronic incorporation or electronic submission of documents, a user is required to first register an account with the Registry.  Registration is free of charge and is available via the e-Registry portal (at www.eregistry.gov.hk).

The CO Amendment has also helped to streamline the incorporation process with the following changes: 

1)         Where there are two or more founder members, the incorporation form can now be signed by any one founder member (instead of at least two founder members);

2)         The Registrar may issue certificates, including a company’s certificate of incorporation, in the form of an electronic record;

3)         A person who is to be a director of the company on its incorporation may still sign the incorporation form but is no longer strictly required to do so.  Instead, if a person has not signed the incorporation form giving consent to be a director, then he or she must give his or her consent in the new specified Form NC3 by delivering it to the Registrar not later than 14 days after the date of incorporation.  Otherwise, the company, every officer who is in default, and the founder member who signed the incorporation form, will be liable to a fine;

4)         There is no longer a requirement to deliver a signed copy or a certified true copy of the original of the memorandum and articles of association to the Registrar for registration; and 

5)         Signing of the memorandum and articles of association by a founder member is no longer required to be attested by a witness.   

Due to these changes the Registrar has revised the incorporation forms (i.e., Form NC1 for companies limited by shares and Form NC1G for companies not limited by shares) for use with effect from 21 February 2011.

BR Amendment

Under the BR Amendment, whenever an application is made to incorporate a Hong Kong company or register a non-Hong Kong company under the Companies Ordinance, the relevant Notice to Business Registration Office (IRBR1 or IRBR2) must also be submitted to the Registry together with the prescribed business registration fee and levy, so that a simultaneous application for business registration is deemed to have been made.  In the case of a successful application, the Registrar will issue both the certificate of incorporation and the business registration certificate at the same time.  The certificates will be in hardcopy for paper applications and in electronic form for electronic applications. 

The BR Amendment also enables the one-stop notification of changes of the following company particulars:

1)         for Hong Kong companies – changes of company name and registered office address; and  

2)         for non-Hong Kong companies – changes of corporate name, address of principal place of business in Hong Kong, authorised representative and the authorised representative’s name or address.  

It is no longer the case that separate notifications for these changes need to be made to the Registrar and the Commissioner of the Inland Revenue (the “Commissioner”).  Instead, after a company has filed notification of these changes to the Registrar and after the Registrar has registered or recorded the relevant particulars, the Registrar will transmit them to the Commissioner and the company will be deemed to have notified the Commissioner of the relevant changes.

Upcoming Changes

We understand from the Registry that electronic submission of other forms and documents, such as statutory returns, will be rolled out in stages, and further electronic functions, such as providing for third party software interface and registration of agents, will be launched later this year.   

Your contact for further information: Samantha Thompson, Partner, Corporate