Following the implementation of Hong Kong’s new statutory regime on inside information disclosure on 1 January 2013, the Securities and Futures Commission (SFC) observed an increase of over 40% of corporate announcements on inside information in the first three months of 2013, as compared to the same quarter of 2012. The SFC recently released certain guidelines in the form of frequently asked questions (FAQs) to advise Hong Kong-listed issuers on the application of the provisions of Part XIVA of the Securities and Futures Ordinance (SFO) and the SFC Guidelines on Disclosure of Inside Information.
Listed issuers’ and officers’ duties
The SFO expands and codifies the existing obligations of disclosure of price sensitive information by Hong Kong-listed issuers under the listing rules of Hong Kong’s stock exchange. Subject to the applicability of “safe harbours” in the SFO, listed issuers are statutorily required to disclose to the public any inside information that has come to their knowledge as soon as reasonably practicable. A listed issuer will be regarded to have knowledge of the inside information if:
- one or more of its officers knows or ought reasonably to have known that information in the course of performing functions as officers of the issuer; and
- a reasonable person, acting as an officer of the corporation, would consider that the information is inside information in relation to the issuer.
The meaning of “officer” is broadly construed. It encompasses an issuer’s directors, company secretary and managers. A person may be regarded as a manager if he or she is under the immediate authority of the board and is in charge of management responsibility affecting the whole, or a substantial part, of the issuer.
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Simon Luk is a partner and the chairman of Asia practice at Winston & Strawn in Hong Kong. He can be contacted on +852 2292 2222 or by email at sluk@winston.com
Fiona Tang is a solicitor at Winston & Strawn in Hong Kong. She can be contacted on +852 2292 2218 or by email at ftang@winston.com
