Advisers bear brunt of Hong Kong rules

Regulatory developments in Hong Kong that will open the market to unauthorised funds could also place an added burden on advisers.

The Securities and Futures Ordinance (SFO), which is likely to come into force in April next year, will regulate the marketing and solicitation of financial products and services in Hong Kong.

At the moment, to market a fund to the public in Hong Kong, a company needs to obtain authorisation from the Securities and Futures Commission (SFC).

An unauthorised fund can be marketed to professional investors or a limited placement can be made to less than 50 people, which is not seen as offering to the public.

The two markets can also be combined, but this falls into a grey area, where funds are in uncertain territory, according to Graham Turl of law firm Linklaters.

The SFO will make it an offence for a person to market funds in Hong Kong to the public, unless the SFC authorises the action or an exemption applies.

One exemption to this is for marketing to 'professional investors'.

The definition of professional investor under the SFO will include Hong Kong and overseas licensed intermediaries, banks and insurance companies.

The SFC intends to add four categories to include trustee companies having been entrusted with total assets of not less than HK$40m, high net worth individuals with a portfolio of not less than HK$8m, corporations or partnerships with a portfolio of not less than HK$8m or total assets of not less than HK$40m, and corporations that act solely as investment holding companies and are wholly owned by individuals who are professional investors in their own right.

Companies that wish to use the professional investor exemption in their marketing must ascertain that the targets of the marketing fall within one of the categories.

This could place a greater burden on intermediaries and investment funds that want to use the professional investor exemption to target high net worth investors, according to Turl.

They will have to be certain that their targets are within the definition and provide proof of their financial status before any marketing can be conducted.

'This may not be too troublesome where the investors are already clients, but it does raise some practical difficulties when marketing to prospective clients,' said Turl.

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