Section: 12 Heading: Printing and signature of articles Version Date: 30/06/1997
Articles shall-
(a) be printed in the English or Chinese language; (Amended 83 of 1995 s. 2)
(b) be divided into paragraphs numbered consecutively;
(c) be signed by each subscriber of the memorandum of association in the presence of a witness who shall attest the signature by signing his name and stating his occupation and address in legible form.
Section: 13 Heading: Alteration of articles by special resolution Version Date: 11/11/1999
(1) Subject to the provisions of this Ordinance and to the conditions contained in its memorandum, a company may by special resolution alter or add to its articles.
(1A) Nothing in this section shall authorize a company to make any alteration or addition in its articles which is inconsistent with any special rights attached to a class of shares in the company. (Added 6 of 1984 s. 11)
(2) Any alteration or addition so made in the articles shall, subject to the provisions of this Ordinance, be as valid as if originally contained therein, and be subject in like manner to alteration by special resolution.
(3) Where the articles of a company are altered, the company shall within 15 days after the alteration deliver to the Registrar a printed copy of its articles as altered and certified as correct by an officer of the company. (Added 30 of 1999 s. 3)
(4) If a company makes default in delivering any document to the Registrar as required by subsection (3), the company and every officer of the company who is in default shall be liable to a fine and, for continued default, to a daily default fine. (Added 30 of 1999 s. 3)
[cf. 1929 c. 23 s. 10 U.K.]
Section: 14 Heading: Statutory forms of memorandum and articles Version Date: 30/06/1997
Form of Memorandum and Articles
The form of-
(a) the memorandum of association of a company limited by shares;
(b) the memorandum and articles of association of a company limited by guarantee and not having a share capital;
(c) the memorandum and articles of association of a company limited by guarantee and having a share capital;
(d) the memorandum and articles of association of an unlimited company having a share capital;
shall be respectively in accordance with the forms set out in Tables B, C, D and E in the First Schedule, or as near thereto as circumstances admit.
Section: 15 Heading: Registration of memorandum and articles Version Date: 30/06/1997
Registration
The memorandum and the articles, if any, shall be delivered to the Registrar and the Registrar shall retain and register them.
[cf. 1929 c. 23 s. 12 U.K.]
Section: 16 Heading: Effect of registration Version Date: 30/06/1997
(1) On the registration of the memorandum of a company the Registrar shall issue a certificate, with his signature or his printed signature, certifying that the company is incorporated and, in the case of a limited company, that the company is limited. (Amended 83 of 1995 s. 3)
(2) From the date of incorporation mentioned in the certificate of incorporation, the subscribers of the memorandum, together with such other persons as may from time to time become members of the company, shall be a body corporate by the name contained in the memorandum, capable forthwith of exercising all the functions of an incorporated company, and having perpetual succession and a common seal, but with such liability on the part of the members to contribute to the assets of the company in the event of its being wound up as is mentioned in this Ordinance.
Section: 17 Heading: Power of company to hold lands Version Date: 30/06/1997
(1) Every company incorporated under this Ordinance shall have power to acquire, hold and dispose of land. (Replaced 74 of 1974 s. 3)
(2) For the purposes of this section, "land" (土地) includes any estate or interest in land, buildings, messuages and tenements of what nature or kind soever. (Replaced 25 of 1958 s. 2)
Section: 18 Heading: Conclusiveness of certificate of incorporation Version Date: 13/02/2004
(1) A certificate of incorporation issued by the Registrar in respect of any association shall be conclusive evidence that all the requirements of this Ordinance in respect of registration and of matters precedent and incidental thereto have been complied with, and that the association is a company authorized to be registered and duly registered under this Ordinance. (Amended 83 of 1995 s. 4)
(2) A statement in the specified form, certifying the company's compliance with all or any of the requirements referred to in subsection (1) and signed by a subscriber to the memorandum or a person named in the articles as a director or secretary of the company, shall be produced to the Registrar, and the Registrar may accept such a statement as sufficient evidence of compliance. (Replaced 28 of 2003 s. 6)
Section: 19 Heading: Unlimited companies may be re-registered as limited Version Date: 30/06/1997
(1) A company which, at or after the commencement* of the Companies (Amendment) Ordinance 1984 (6 of 1984), is registered as unlimited may be re-registered as limited if a special resolution that it should be so re-registered (complying with the requirement of subsection (2)) is passed and an application in that behalf, framed in the specified form and signed by a director or by the secretary of the company, is lodged with the Registrar together with the documents mentioned in subsection (3) not earlier than the day on which the copy of the resolution forwarded to him in pursuance of section 117 is received by him; and the Eighth Schedule shall have effect for the purposes of this section as if for references in that Schedule to the registration of a company there were substituted references to its re-registration under this section. (Amended 3 of 1997 s. 7)
(2) The said requirement is that the resolution-
(a) shall state the manner in which the liability of the members of the company is to be limited and, if the company is to have a share capital, what that capital is to be; and
(b) shall-
(i) if the company is to be limited by guarantee, provide for the making of such alterations in its memorandum and such alterations in and additions to its articles as are requisite to bring the memorandum and articles, both in substance and in form, into conformity with the requirements of this Ordinance with respect to the substance and form of the memorandum and articles of a company to be formed thereunder whose condition as to mode of limitation of liability and possession of a share capital (or want of it) will be similar to the condition of the company as to those matters which will obtain upon its re-registration;
(ii) if the company is to be limited by shares, provide for the making of such alterations in its memorandum as are requisite to bring it, both in substance and in form, into conformity with the requirements of this Ordinance with respect to the substance and form of the memorandum of a company to be formed thereunder as a company so limited, and such alterations in and additions to its articles as are requisite in the circumstances.
(3) The documents referred to in subsection (1) are a printed copy of the memorandum as altered in pursuance of the resolution and a printed copy of the articles as so altered.
(4) The Registrar shall retain the application and other documents lodged with him under subsection (1) and shall issue to the company a certificate of incorporation appropriate to the status to be assumed by the company by virtue of this section; and upon the issue of the certificate-
(a) the status of the company shall, by virtue of the issue, be changed from unlimited to limited; and
(b) the alterations in the memorandum specified in the resolution and the alterations in, and additions to, the articles so specified shall, notwithstanding anything in this Ordinance, take effect.
(5) A certificate of incorporation issued by virtue of this section shall be conclusive evidence that the requirements of this section with respect to re-registration and of matters precedent and incidental thereto have been complied with, and that the company was authorized to be re-registered under this Ordinance in pursuance of this section and was duly so re-registered.
(6) In the event of the winding up of a company re-registered in pursuance of this section, the following provisions shall have effect-
(a) notwithstanding section 170(1)(a), a past member of the company who was a member thereof at the time of re-registration shall, if the winding up commences within the period of 3 years beginning with the day on which the company is re-registered, be liable to contribute to the assets of the company in respect of debts and liabilities of its contracted before that time;
(b) where no persons who were members of the company at that time are existing members of the company, a person who, at that time, was a present or past member thereof shall, subject to section 170(1)(a) and paragraph (a) of this subsection, but notwithstanding section 170(1)(c), be liable to contribute as aforesaid notwithstanding that the existing members have satisfied the contributions required to be made by them in pursuance of this Ordinance;
(c) notwithstanding section 170(1)(d) and (e), there shall be no limit on the amount which a person who, at that time, was a past or present member of the company is liable to contribute as aforesaid.
Section: 20 Heading: Restriction on registration of companies by certain names Version Date: 01/07/1997
Remarks:
Adaptation amendments retroactively made - see 23 of 1999 s. 3
Provisions with respect to Names of Companies
(1) A company shall not be registered by a name-
(a) which is the same as a name appearing in the Registrar's index of company names;
(b) which is the same as that of a body corporate incorporated or established under an Ordinance;
(c) the use of which by the company would, in the opinion of the Chief Executive, constitute a criminal offence; or
(d) which, in the opinion of the Chief Executive, is offensive or otherwise contrary to the public interest.
(2) Except with the consent of the Chief Executive no company shall be registered by a name which-
(a) in the opinion of the Chief Executive, would be likely to give the impression that the company is connected in any way with the Central People's Government or the Government of Hong Kong or any department of either Government; or
(b) includes any word or expression for the time being specified in an order made under section 22B.
(3) In determining for the purposes of subsection (1)(a) or (b) whether one name is the same as another-
(a) the following shall be disregarded-
(i) the definite article, where it is the first word of the name;
(ii) the following words and expressions where they appear at the end of the name, that is to say-
(A) "company";
(B) "and company";
(C) "company limited";
(D) "and company limited";
(E) "limited";
(F) "unlimited";
(G) "public limited company";
(H) "公司"; (Added 3 of 1997 s. 8)
(I) "有限公司"; (Added 3 of 1997 s. 8)
(J) "無限公司"; and (Added 3 of 1997 s. 8)
(K) "公眾有限公司"; (Added 3 of 1997 s. 8)
(iii) abbreviations of any of the words or expressions referred to in subparagraph (ii) where they appear at the end of the name; and
(iv) type and case of letters, accents, spaces between letters and punctuation marks; (Amended 3 of 1997 s. 8)
(b) "and" and "&", "Hong Kong", "Hongkong" and "HK", and "Far East" and "FE" are respectively to be taken as the same;
(c) two different Chinese characters shall be regarded as the same if the Registrar is satisfied that having regard to the usage of the two Chinese characters in Hong Kong, they can reasonably be used interchangeably. (Added 3 of 1997 s. 8)
Section: 20A Heading: (Repealed 60 of 1990 s. 4) Version Date: 30/06/1997
(Repealed 60 of 1990 s. 4)
Note:
See 60 of 1990 s. 11.
Section: 20 Heading: Restriction on registration of companies by certain names Version Date: 01/07/1997
Remarks:
Adaptation amendments retroactively made - see 23 of 1999 s. 3
Provisions with respect to Names of Companies
(1) A company shall not be registered by a name-
(a) which is the same as a name appearing in the Registrar's index of company names;
(b) which is the same as that of a body corporate incorporated or established under an Ordinance;
(c) the use of which by the company would, in the opinion of the Chief Executive, constitute a criminal offence; or
(d) which, in the opinion of the Chief Executive, is offensive or otherwise contrary to the public interest.
(2) Except with the consent of the Chief Executive no company shall be registered by a name which-
(a) in the opinion of the Chief Executive, would be likely to give the impression that the company is connected in any way with the Central People's Government or the Government of Hong Kong or any department of either Government; or
(b) includes any word or expression for the time being specified in an order made under section 22B.
(3) In determining for the purposes of subsection (1)(a) or (b) whether one name is the same as another-
(a) the following shall be disregarded-
(i) the definite article, where it is the first word of the name;
(ii) the following words and expressions where they appear at the end of the name, that is to say-
(A) "company";
(B) "and company";
(C) "company limited";
(D) "and company limited";
(E) "limited";
(F) "unlimited";
(G) "public limited company";
(H) "公司"; (Added 3 of 1997 s. 8)
(I) "有限公司"; (Added 3 of 1997 s. 8)
(J) "無限公司"; and (Added 3 of 1997 s. 8)
(K) "公眾有限公司"; (Added 3 of 1997 s. 8)
(iii) abbreviations of any of the words or expressions referred to in subparagraph (ii) where they appear at the end of the name; and
(iv) type and case of letters, accents, spaces between letters and punctuation marks; (Amended 3 of 1997 s. 8)
(b) "and" and "&", "Hong Kong", "Hongkong" and "HK", and "Far East" and "FE" are respectively to be taken as the same;
(c) two different Chinese characters shall be regarded as the same if the Registrar is satisfied that having regard to the usage of the two Chinese characters in Hong Kong, they can reasonably be used interchangeably. (Added 3 of 1997 s. 8)
Section: 20A Heading: (Repealed 60 of 1990 s. 4) Version Date: 30/06/1997
(Repealed 60 of 1990 s. 4)
Note:
See 60 of 1990 s. 11.
Section: 21 Heading: Power to dispense with certain words in name of charitable and other companies Version Date: 01/07/2000
(1) Where it is proved to the satisfaction of the Registrar that an association about to be formed as a limited company is to be formed for promoting commerce, art, science, religion, charity or any other useful object, and intends to apply its profits, if any, or other income in promoting its objects, and to prohibit the payment of any dividend to its members, the Registrar may by licence direct that the association may be registered as a company with limited liability, without the addition of-
(a) if the name of the association is in English, the word "Limited" to its name;
(b) if the name of the association is in Chinese, the expression in Chinese "有限公司" to its name; and
(c) if the name of the association is both in English and Chinese, such word and expression to its name in English and Chinese respectively,
and the association may be registered accordingly and shall, on registration, enjoy all the privileges and (subject to the provisions of this section) be subject to all the obligations of limited companies. (Replaced 3 of 1997 s. 9)
(2) Where it is proved to the satisfaction of the Registrar-
(a) that the objects of a company registered under this Ordinance as a limited company are restricted to those specified in subsection (1) and to objects incidental or conducive thereto; and
(b) that by its constitution the company is required to apply its profits, if any, or other income in promoting its objects and is prohibited from paying any dividend to its members,
the Registrar may by licence authorize the company to make by special resolution a change in its name including or consisting of the omission of the word "Limited" or the expression in Chinese "有限公司" or both such word and expression, as the case may be, and subsections (4) and (5) of section 22 shall apply to a change of name under this subsection as they apply to a change of name under that section. (Amended 3 of 1997 s. 9)
(3) A licence by the Registrar under this section may be granted on such conditions and subject to such regulations as the Registrar thinks fit, and those conditions and regulations shall be binding on the body to which the licence is granted, and (where the grant is under subsection (1)) shall, if the Registrar so directs, be inserted in the memorandum and articles, or in one of those documents.
(4) A body to which a licence is granted under this section shall be exempted from the provisions of this Ordinance relating to the use of the word "Limited" or the expression in Chinese "有限公司" or both such word and expression, as the case may be, as any part of its name, the publishing of its name and the sending of lists of members to the Registrar. (Amended 3 of 1997 s. 9)
(5) A licence under this section may at any time be revoked by the Registrar, and upon revocation the Registrar shall, where the name upon the register of the body to which it was granted is-
(a) in English, enter the word "Limited" at the end of that name;
(b) in Chinese, enter the expression in Chinese "有限公司" at the end of that name; or
(c) both in English and Chinese, enter such word and expression at the end of its name in English and Chinese respectively,
and the body shall cease to enjoy the exemptions and privileges or, as the case may be, the exemptions granted by this section:
Provided that before a licence is so revoked, the Registrar shall give to the body notice in writing of his intention, and shall afford it an opportunity of being heard in opposition to the revocation. (Amended 3 of 1997 s. 9)
(6) A body in respect of which a licence under this section is in force shall not have power to alter its memorandum or articles unless-
(a) (Repealed 46 of 2000 s. 3)
(b) the proposed alteration is approved in writing by the Registrar.
(7) Where a body in respect of which a licence under this section is in force alters its memorandum or articles, the Registrar may (unless he sees fit to revoke the licence) vary the licence by making it subject to such conditions and regulations as the Registrar thinks fit, in lieu of or in addition to the conditions and regulations, if any, to which the licence was formerly subject.
(8) Where a licence granted under this section to a body the name of which contains the words "Chamber of Commerce" or the expression in Chinese "總商會" is revoked, the body shall within a period of 6 weeks from the date of revocation or such longer period as the Registrar may think fit to allow, change its name to a name which does not contain those words, and - (Amended 3 of 1997 s. 9)
(a) the notice to be given under the proviso to subsection (5) to that body shall include a statement to the effect of the foregoing provisions of this subsection; and
(b) subsections (4) and (5) of section 22 shall apply to a change of name under this subsection as they apply to a change of name under that section.
(9) If a body referred to in subsection (8) makes default in complying with the requirements of that subsection, it shall be liable to a fine and, for continued default, to a daily default fine. (Amended 7 of 1990 s. 2)
(10) Without prejudice to section 23 of the Interpretation and General Clauses Ordinance (Cap 1), this section shall apply in relation to any body in respect of which a licence (being a licence granted under this Ordinance in respect of the registration of that body as a company with limited liability without the addition of the word "Limited" to its name) is in force at the commencement of the Companies (Amendment) Ordinance 1978 (51 of 1978) as if such licence had been granted under this section after the commencement of that Ordinance.
Section: 22 Heading: Change of name Version Date: 13/02/2004
(1) A company may by special resolution change its name.
(1A) Where a company passes a special resolution changing its name, it shall, within 15 days after the passing of the resolution, give notice in the specified form of the change of its name to the Registrar. (Added 28 of 2003 s. 7)
(1B) If a company fails to comply with subsection (1A), the company and every officer of the company who is in default is liable to a fine and, for continued default, to a daily default fine. (Added 28 of 2003 s. 7)
(2) Where a company has been registered by a name which-
(a) is the same as or, in the opinion of the Registrar, too like a name appearing at the time of the registration in the Registrar's index of company names;
(b) is the same as or, in the opinion of the Registrar, too like a name which should have appeared in that index at that time; or
(c) is the same as or, in the opinion of the Registrar, too like the name of a body corporate incorporated or established under any Ordinance at the time of the registration,
the Registrar may within 12 months of that time, in writing, direct the company to change its name within such period as he may specify.
(3) Section 20(3) applies in determining under subsection (2) whether a name is the same as or too like another.
(4) If it appears to the Registrar that misleading information has been given for the purpose of a company's registration by a particular name, or that undertakings or assurances have been given for that purpose and have not been fulfilled, he may within 5 years of the date of its registration by that name direct, in writing, the company to change its name within such period as he may specify.
(5) Where a direction is given under subsection (2) or (4), the Registrar may by a further direction in writing extend the period within which the company is to change its name, at any time before the end of that period.
(6) A company which fails to comply with a direction under this section and every officer of the company who is in default shall be liable to-
(a) a fine and, in the case of an individual, imprisonment; and
(b) for continued default, a daily default fine.
(7) Where a company gives notice of a change of its name to the Registrar under subsection (1A), the Registrar shall, subject to section 20-
(a) enter the new name on the register in place of the former name; and
(b) issue a certificate of change of name,
and the change of name shall have effect from the date on which the certificate is issued. (Replaced 28 of 2003 s. 7)
(8) A change of name by a company under this section does not affect any rights or obligations of the company or render defective any legal proceedings by or against it and any legal proceedings that could have been commenced or continued against it by its former name may be commenced or continued against it by its new name.
Section: 22A Heading: Power of Registrar to require company to abandon misleading name Version Date: 30/06/1997
(1) If in the opinion of the Registrar the name by which a company is registered gives so misleading an indication of the nature of its activities as to be likely to cause harm to the public, he may direct it to change its name.
(2) A direction given under this section to a company shall, if not duly made the subject of an application under subsection (3) to the court, be complied with within a period of 6 weeks from the date of the direction or such longer period as the Registrar may think fit to allow.
(3) A company to which a direction is given under this section may, within a period of 3 weeks from the date of the direction, apply to the court to set the direction aside, and the court may set it aside or confirm it; and if it confirms it, it shall specify a period within which it shall be complied with.
(4) If a company makes default in complying with a direction under this section, it shall be liable to a fine and, for continued default, to a daily default fine. (Amended 7 of 1990 s. 2)
(5) Subsections (4) and (5) of section 22 shall apply in relation to a change of name under this section as they apply in relation to a change of name under that section.
(Added 6 of 1984 s.13)
Section: 22B Heading: Specification of names by Chief Executive Version Date: 13/02/2004
(1) The Chief Executive may by order-
(a) specify words or expressions for the registration of which as, or as part of, a company's name the approval of the Chief Executive is required under section 20(2)(b); and
(b) in relation to any such word or expression, specify a Government department or other body as the relevant body for the purposes of subsection (2). (Amended 23 of 1999 s. 3)
(2) Where a company or the promoter of a proposed company proposes to have as, or as part of, its name any word or expression referred to in subsection (1), a request shall be made in writing by the company or the promoter to any body specified under subsection (1)(b) as the relevant body in relation to such word or expression, to indicate whether it has any objection to the proposed name and the reasons for any such objection.
(3) Where a company or a promoter makes a request under subsection (2) the company secretary or the promoter shall deliver in writing to the Registrar a statement that such request has been made to the body referred to in subsection (2) together with a copy of any written reply received from that body and, in the case of a change of name, the notice of change of name required by section 22(1A). (Amended 28 of 2003 s. 8)
(4) Section 305 (inspection, production and evidence of documents kept by Registrar) shall not apply to any document delivered under subsection (3).
(5) An order under this section may contain such transitional provisions and savings as the Chief Executive may consider appropriate, and may make different provisions for different cases or different classes of cases. (Amended 23 of 1999 s. 3)
Section: 22C Heading: Registrar's index of company names Version Date: 01/07/1997
Remarks:
Adaptation amendments retroactively made - see 23 of 1999 s. 3
(1) The Registrar shall keep an index of the names of the following-
(a) every company; and
(b) every company incorporated outside Hong Kong which has complied with section 333.
(2) The Chief Executive may by order amend subsection (1) so as to add to it any other body or class of body whether incorporated or unincorporated. (Amended 23 of 1999 s. 3)
Section: 23 Heading: Effect of memorandum and articles Version Date: 13/02/2004
General Provisions with respect to Memorandum and Articles
(1) Subject to the provisions of this Ordinance, the memorandum and articles shall, when registered, have effect as a contract under seal-
(a) between the company and each member; and
(b) between a member and each other member,
and shall be deemed to contain covenants on the part of the company and of each member to observe all the provisions of the memorandum and articles. (Replaced 28 of 2003 s. 9)
(1A) Without limiting the generality of subsection (1), the memorandum and articles shall, when registered, be enforceable by the company against each member and by a member against the company and against each other member. (Added 28 of 2003 s. 9)
(2) All money payable by any member to the company under the memorandum or articles shall be a debt due from him to the company, and be of the nature of a specialty debt.
Section: 24 Heading: Provision as to memorandum and articles of companies limited by guarantee Version Date: 30/06/1997
(1) In the case of a company limited by guarantee and not having a share capital, and registered on or after 1 January 1912, every provision in the memorandum or articles or in any resolution of the company purporting to give any person a right to participate in the divisible profits of the company otherwise than as a member shall be void.
(2) For the purpose of the provisions of this Ordinance relating to the memorandum of a company limited by guarantee and of this section, every provision in the memorandum or articles, or in any resolution, of a company limited by guarantee and registered on or after the date aforesaid, purporting to divide the undertaking of the company into shares or interests shall be treated as a provision for a share capital, notwithstanding that the nominal amount or number of the shares or interests is not specified thereby.
Section: 25 Heading: Alterations in memorandum or articles increasing liability to contribute to share capital not to bind existing members without consent Version Date: 30/06/1997
Notwithstanding anything in the memorandum or articles of a company, no member of the company shall be bound by an alteration made in the memorandum or articles after the date on which he became a member, if and so far as the alteration requires him to take or subscribe for more shares than the number held by him at the date on which the alteration is made, or in any way increases his liability as at that date to contribute to the share capital of, or otherwise to pay money to, the company:
Provided that this section shall not apply in any case where the member agrees in writing, either before or after the alteration is made, to be bound thereby.
Section: 25A Heading: Power to alter conditions in memorandum which could have been contained in articles Version Date: 13/02/2004
(1) Subject to the provisions of sections 25 and 168A, any condition contained in a company's memorandum which could lawfully have been contained in articles of association instead of in the memorandum may, subject to the provisions of this section, be altered by the company by special resolution:
Provided that, where a private company passes such a resolution, an application may be made to the court for the alteration to be cancelled, and if such an application is made, the alteration shall not have effect except in so far as it is confirmed by the court. (Amended 28 of 2003 s. 10)
(2) This section shall not apply where the memorandum itself provides for or prohibits the alteration of all or any of the said conditions, and shall not authorize any variation or abrogation of the special rights of any class of members.
(3) Where a private company passes a resolution under this section altering any condition contained in its memorandum, subsections (2)(a), (3), (4), (7) and (8) of section 8 shall apply in relation to the alteration and to any application made under this section in the same manner as they apply in relation to alterations and to applications made under section 8. (Replaced 28 of 2003 s. 10)
(3A) Where a company (not being a private company) passes a resolution under this section altering any condition contained in its memorandum, subsections (7A) and (8) of section 8 shall apply in relation to the alteration made under this section in the same manner as they apply in relation to alterations made under section 8. (Added 28 of 2003 s. 10)
(4) This section shall apply to a company's memorandum whether registered before or after the commencement* of the Companies (Amendment) Ordinance 1984 (6 of 1984).
(5) In relation to a resolution for altering any condition contained in a company's memorandum that is passed by a company (whether a private company or not) under this section before the commencement** of section 10 of the Companies (Amendment) Ordinance 2003 (28 of 2003), the provisions of this section in force immediately before that commencement shall continue to have effect as if section 10 of that Ordinance had not been enacted. (Added 28 of 2003 s. 10)
Section: 26 Heading: Copies of memorandum and articles to be given to members Version Date: 30/06/1997
(1) A company shall, on being so required by any member, send to him a copy of the memorandum and of the articles, if any, and a copy of any Ordinance which alters the memorandum, subject to payment, in the case of a copy of the memorandum and of the articles, of $5 or such less sum as the company may prescribe, and, in the case of a copy of an Ordinance, of such sum not exceeding the published price thereof as the company may require.
(2) If a company makes default in complying with this section, the company and every officer of the company who is in default shall be liable for each offence to a fine. (Amended 7 of 1990 s. 2)
Section: 27 Heading: Issued copies of memorandum to embody alterations Version Date: 30/06/1997
(1) Where an alteration is made in the memorandum of a company, every copy of the memorandum issued after the date of the alteration shall be in accordance with the alteration.
(2) If, where any such alteration has been made, the company at any time after the date of the alteration issues any copies of the memorandum which are not in accordance with the alteration, the company and every officer of the company who is in default shall be liable for each offence to a fine. (Amended 22 of 1950 Schedule; 6 of 1984 s. 16; 7 of 1990 s. 2)
Section: 28 Heading: Definition of member Version Date: 30/06/1997
Membership of Company
(1) The subscribers of the memorandum of a company shall be deemed to have agreed to become members of the company, and on its registration shall be entered as members in its register of members.
(2) Every other person who agrees to become a member of a company, and whose name is entered in its register of members, shall be a member of the company.
Section: 28A Heading: Membership of holding company Version Date: 30/06/1997
(1) Subject to the provisions of this section, a body corporate cannot be a member of a company which is its holding company, and any allotment or transfer of shares in a company to its subsidiary shall be void.
(2) Nothing in this section shall apply where the subsidiary is concerned as personal representative, or where it is concerned as trustee, unless the holding company or a subsidiary thereof is beneficially interested under the trust and is not so interested only by way of security for the purposes of a transaction entered into by it in the ordinary course of a business which includes the lending of money.
(3) This section shall not prevent a subsidiary which was, at the commencement* of the Companies (Amendment) Ordinance 1984 (6 of 1984), a member of its holding company, from continuing to be a member.
(4) This section shall not prevent a company which at the date it becomes a subsidiary of another company is a member of that other company, from continuing to be a member.
(5) This section shall not prevent a subsidiary from becoming a member of its holding company, or prevent an allotment to a subsidiary of shares in its holding company, by or by virtue of the exercise by the subsidiary of any rights of conversion attached to any shares in its holding company or under any debentures thereof held by the subsidiary at the commencement* of the Companies (Amendment) Ordinance 1984 (6 of 1984).
(6) This section shall not prevent a subsidiary which is a member of its holding company from accepting and holding further shares in its holding company if such further shares are allotted to it as fully paid up in consequence of a capitalization of reserves or profits by such holding company.
(7) Subject to subsection (2), a subsidiary which is a member of its holding company shall have no right to vote at meetings of the holding company or any class of members thereof.
(8) Subject to subsection (2), this section shall apply in relation to a nominee for a body corporate which is a subsidiary, as if references therein to such a body corporate included references to a nominee for it.
(9) Where a holding company makes an offer of shares to its members it may sell, on behalf of a subsidiary, any such shares which the subsidiary could, but for this section, have taken by virtue of shares already held by it in the holding company, and pay the proceeds of the sale to the subsidiary.
(10) In relation to a company limited by guarantee or unlimited which is a holding company, the reference in this section to shares, whether or not it has a share capital, shall be construed as including a reference to the interest of its members as such, whatever the form of that interest.
Section: 29 Heading: Meaning of private company Version Date: 30/06/1997
Private Companies
(1) For the purposes of this Ordinance, the expression "private company" (私人公司) means a company which by its articles-
(a) restricts the right to transfer its shares; and
(b) limits the number of its members to 50, not including persons who are in the employment of the company and persons who, having been formerly in the employment of the company, were while in that employment, and have continued after the determination of that employment to be, members of the company; and
(c) prohibits any invitation to the public to subscribe for any shares or debentures of the company.
(2) Where 2 or more persons hold one or more shares in a company jointly, they shall, for the purposes of this section, be treated as a single member.
Section: 30 Heading: Circumstances in which company ceases to be or to enjoy privileges of a private company Version Date: 01/07/1997
Remarks:
Adaptation amendments retroactively made - see 23 of 1999 s. 3
(1) If a company, being a private company, alters its articles in such manner that they no longer include the provisions which, under section 29, are required to be included in the articles of a company in order to constitute it a private company, the company shall, as on the date of the alteration, cease to be a private company and shall, within a period of 14 days after the said date, deliver to the Registrar for registration a prospectus or a statement in lieu of prospectus in the form and containing the particulars set out in Part I of the Second Schedule and, in the cases mentioned in Part II of that Schedule setting out the reports specified therein, and the said Parts I and II shall have effect subject to the provisions contained in Part III of that Schedule. (Amended 78 of 1972 s. 3)
(1A) Every statement in lieu of prospectus delivered under subsection (1) shall, where the persons making any report required by Part II of the Second Schedule have made therein or have, without giving the reasons, indicated therein any such adjustments as are mentioned in paragraph 5 of the Second Schedule, have endorsed thereon or attached thereto a written statement signed by those persons setting out the adjustments and giving the reasons therefor. (Added 78 of 1972 s. 3)
(2) If default is made in complying with subsection (1) or (1A), the company and every officer of the company who is in default shall be liable to a default fine. (Amended 78 of 1972 s. 3; 7 of 1990 s. 2)
(2A) Where a statement in lieu of prospectus delivered to the Registrar under subsection (1) includes any untrue statement, any person who authorized the delivery of the statement, in lieu of prospectus for registration shall be liable to imprisonment and a fine, unless he proves either that the untrue statement was immaterial or that he had reasonable ground to believe and did up to the time of the delivery for registration of the statement in lieu of prospectus believe that the untrue statement was true. (Added 78 of 1972 s.3. Amended 7 of 1990 s. 2)
(2B) For the purposes of this section-
(a) a statement included in a statement in lieu of prospectus shall be deemed to be untrue if it is misleading in the form and context in which it is included; and
(b) a statement shall be deemed to be included in a statement in lieu of prospectus if it is contained therein or in any report or memorandum appearing on the face thereof or by reference incorporated therein. (Added 78 of 1972 s. 3)
(2C) The Chief Executive in Council may by regulation amend the Second Schedule. (Added 78 of 1972 s. 3. Amended 23 of 1999 s. 3)
(3) Where the articles of a company include the provisions aforesaid but default is made in complying with any of those provisions, the company shall cease to be entitled to the privileges and exemptions conferred on private companies under the provisions contained in sections 109(3) and 141D, and thereupon the said provisions shall apply to the company as if it were not a private company: (Amended 6 of 1984 s. 18)
Provided that the court, on being satisfied that the failure to comply with the conditions was accidental or due to inadvertence or to some other sufficient cause, or that on other grounds it is just and equitable to grant relief, may, on the application of the company or any other person interested and on such terms and conditions as seem to the court just and expedient, order that the company be relieved from such consequences as aforesaid.
Section: 31 Heading: (Repealed 28 of 2003 s. 12) Version Date: 13/02/2004
(Subheading repealed 28 of 2003 s. 11)
Section: 32 Heading: Form of contracts Version Date: 30/06/1997
Contracts, etc.
(1) Contracts on behalf of a company may be made as follows- (Amended L.N. 223 of 1976)
(a) a contract which if made between private persons would be by law required to be in writing and under seal, may be made on behalf of the company in writing under the common seal of the company; (Amended 6 of 1984 s. 20)
(b) a contract which if made between private persons would be by law required to be in writing, signed by the parties to be charged therewith, may be made on behalf of the company in writing signed by any person acting under its authority, express or implied;
(c) a contract which if made between private persons would by law be valid although made by parol only, and not reduced into writing, may be made by parol on behalf of the company by any person acting under its authority, express or implied.
(2) A contract made according to this section shall be effectual in law, and shall bind the company and its successors and all other parties thereto.
(3) A contract made according to this section may be varied or discharged in the same manner in which it is authorized by this section to be made.
Section: 32A Heading: Pre-incorporation contracts Version Date: 30/06/1997
(1) Where a contract purports to have been made in the name or on behalf of a company at a time when the company has not been incorporated-
(a) subject to subsection (2) and any express agreement to the contrary, the contract shall have effect as a contract entered into by the person purporting to act for the company or as agent for it, and he shall be personally liable on and entitled to enforce the contract accordingly;
(b) the company may, after incorporation, ratify the contract to the same extent as if it had already been incorporated at that time and as if the contract had been entered into on its behalf by an agent acting without its authority.
(2) Where a contract is ratified by virtue of this section, the person who purported to act for or on behalf of the company in making the contract shall not thereafter be under any greater liability than he would have been if he had entered into the contract on behalf of the company as an agent acting without its authority and after its incorporation.
Section: 33 Heading: Bills of exchange and promissory notes Version Date: 30/06/1997
A bill of exchange or promissory note shall be deemed to have been made, accepted, or endorsed on behalf of a company if made, accepted, or endorsed in the name of, or by or on behalf or on account of, the company by any person acting under its authority.
Section: 34 Heading: Execution of deeds abroad Version Date: 30/06/1997
(1) A company may, by writing under its common seal, empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds on its behalf in any place not situate in Hong Kong. (Amended 1 of 1949 s. 6; 6 of 1984 s. 259)
(2) A deed signed by such an attorney on behalf of the company and under his seal shall bind the company and have the same effect as if it were under its common seal.
Section: 35 Heading: Power for company to have official seal for use abroad Version Date: 30/06/1997
(1) A company whose objects require or comprise the transaction of business outside Hong Kong, may, if authorized by its articles, have for use in any territory, district, or place not situate in Hong Kong, an official seal, which shall be a facsimile of the common seal of the company, with the addition on its face of the name of every territory, district, or place where it is to be used. (Amended 1 of 1949 s. 7; 6 of 1984 s.259)
(2) A deed or other document to which an official seal is duly affixed shall bind the company as if it had been sealed with the common seal of the company.
(3) A company having an official seal for use in any such territory, district or place may, by writing under its common seal, authorize any person appointed for the purpose in that territory, district or place, to affix the official seal to any deed or other document to which the company is party in that territory, district or place.
(4) The authority of any such agent shall, as between the company and any person dealing with the agent, continue during the period, if any, mentioned in the instrument conferring the authority, or if no period is there mentioned, then until notice of the revocation or determination of the agent's authority has been given to the person dealing with him.
(5) The person affixing any such official seal shall, by writing under his hand, certify on the deed or other instrument, to which the seal is affixed, the date on which and the place at which it is affixed.
Section: 36 Heading: Authentication of documents Version Date: 30/06/1997
Authentication of Documents
A document or proceeding requiring authentication by a company may be signed by a director, secretary, or other authorized officer of the company, and need not be under its common seal.
