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New law brings virtual variation

By Alex Liu

Hong Kong, 27 February 2023: It is reasonable to say Covid-19 has irrevocably changed the way we work. Even as the world returns to normal, certain pandemic-induced practices – such as working from home, flexible hours and vastly increased use of video conferencing technology – are here to stay. This has been recognised by the Hong Kong government, which has introduced legislation to give companies flexibility over how they hold general meetings.

The Companies (Amendment) Ordinance 2023 (“Amendment Ordinance”) will come into operation on 28 April. It updates the Companies Ordinance (Cap. 622) and the Companies (Model Articles) Notice (Cap. 622H) to expressly cater for the scenario of Hong Kong-incorporated companies holding fully virtual or hybrid general meetings.

Currently, the manner of holding a general meeting is governed by the Companies Ordinance and the relevant subsidiary legislation, as well as the company’s own articles of association. The Companies Ordinance provides for a general meeting to “be held at two or more places, by using technology that enables effective communication amongst participants and voting by members”.

It has been widely accepted that this provision facilitates hybrid meetings – that is, a physical meeting plus some sort of electronic or online participation. Yet there is no specific reference to holding fully virtual general meetings or the hybrid mode. The Amendment Ordinance solves this issue by:

  • Introducing a new definition of virtual meeting technology;
  • Stating that notice of a general meeting to members or on a website must specify, among other matters, the physical venue or the virtual meeting technology to be used, or both;
  • Stating that the notice may specify the virtual meeting technology to be used unless the company’s articles expressly preclude the holding of a general meeting by using virtual meeting technology or require a general meeting to be held only at a physical venue;
  • Setting out the mode of holding a general meeting;
  • Clarifying that when a general meeting of a company is held at two or more physical venues, the company must use any technology that allows the participants who are not at the same physical venue to listen, speak and vote at the meeting regardless of whether virtual meeting technology is also used for holding the meeting; and
  • Stating that a person who attends by using virtual meeting technology is to be regarded as being present.

To facilitate implementation of the Amendment Ordinance, the Companies Registry has issued a Guidance Note which seeks to provide general information and good practices on the holding of fully virtual or hybrid general meetings by locally-incorporated companies.

Companies should choose the most appropriate mode of meeting and will need to consider, in addition to convening a valid meeting in accordance with the law and their articles, whether a physical meeting continues to be the most appropriate mode or that holding a fully virtual or hybrid one may promote better engagement with, and maximise participation by, members.

Specifically, the Guidance Note advises companies to review their articles to see if a fully virtual or hybrid general meeting is permissible. It also notes that different modes of meeting bring different benefits and there is no “one size fits all” approach. It also cautions that the mode of meeting should not be a means of managing attendance or limiting the ability of members to participate. As well, the Guidance Note addresses issues such as security, authentication of participants and contingency planning for technical issues.

A new thematic section concerning the Amendment Ordinance has been set up on the Companies Registry website at www.cr.gov.hk/en/legislation/co2023/overview.htm. It contains the full text of the Amendment Ordinance, the Guidance Note and frequently asked questions.

In summary, the Amendment Ordinance is a welcome development which brings Hong Kong into line with other common law jurisdictions such as the UK, Australia and Singapore and reflects what has become normal practice for companies in the past three years. Here at BC&C, we are ready to offer legal advice to companies seeking to take advantage of the flexibility offered by the new legislation.

A Partner in BC&C since 2000, Alex Liu’s key areas of practice include commercial and corporate litigation, investigations by governmental bodies such as the SFC, ICAC and Commercial Crime Bureau, insolvency and debt restructuring, intellectual property and employment matters. He can be contacted at alex@boasecohencollins.com.

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