Hong Kong: Banking & Finance

The Hong Kong Monetary Authority (the “HKMA”) is the central banking institution in Hong Kong. The Banking Ordinance (Cap. 155) (“BO”) empowers the HKMA to the authorisation, suspension and revocation of licensed banks, restricted licence banks and deposit-taking companies (collectively referred to in Hong Kong, “Authorised Institutions” or “AIs”).

The HKMA issues regulatory guides such as Circulars, Guidelines and Supervisory Policy Manual (“SPM”) for regulating and supervising the AIs from time to time, and acts as the resolution authority to implement the resolution regime for the AIs under the Financial Institutions (Resolution) Ordinance (Cap. 628) (“FIRO”).

BO establishes a three-tier system of AIs in Hong Kong, comprising of (i) licensed banks, (ii) restricted licence banks and (iii) deposit-taking companies.

Licensed banks are entitled to carry out banking business as defined under BO, including (i) operating current and savings accounts, (ii) accepting deposits of any size and maturity from the public and (iii) paying or collecting cheques drawn by or paid in by customers.

Restricted licence banks are entitled to take deposits of any maturity of HK$500,000 or above. Generally, restricted licence banks engage in merchant banking and capital market activities.

Deposit-taking companies are entitled to take deposits of HK$100,000 or above with an original term of maturity of at least three months. Their business mainly relates to various specialised activities, such as consumer finance, commercial lending and securities business.

Any person or company (including its directors and managers) carrying on the above business in Hong Kong without an AI licence may be subject to criminal prosecution.

Different banking services may be carried out by a licensed bank, a restricted licence bank or a deposit-taking company as described in Response 2 above and each institution has a specific licence in accordance with the specific tier of AI it belongs.

Securities and Futures Ordinance (Cap. 571) and the Securities and Futures Commission (the “SFC”) requires that a company shall apply for a corresponding licence before carrying out the following 12 types of regulated activities:

Type 1 : dealing in securities

Type 2 : dealing in futures contracts

Type 3 : leveraged foreign exchange trading

Type 4 : advising on securities

Type 5 : advising on futures contracts

Type 6 : advising on corporate finance

Type 7 : providing automated trading services

Type 8 : securities margin financing

Type 9 : asset management

Type 10 : providing credit rating services

Type 11#: dealing in OTC derivative products or advising on OTC derivative products

Type 12 : providing client clearing services for OTC derivative transactions

# Not yet in operation

However, AIs are automatically permitted to carry out leveraged foreign exchange trading and securities margin financing activities without obtaining a licence for Type 3 and Type 8.

AIs may apply to the SFC for a certificate of registration for regulated activities other than Type 3 and Type 8. By a Memorandum of Understanding signed between the SFC and the HKMA, they cooperate to supervise AIs’ conduct in relation to the regulated activities. The HKMA is responsible for the day-to-day supervision of regulated activities conducted by AIs while the SFC is responsible for making securities-related rules for the AIs to comply with.

Please note that lending business in Hong Kong is regulated by the Money Lenders Ordinance (Cap.163), but such legislation does not apply to AIs. AIs are entitled to carry out lending activities so long as they remain AIs.

The Fintech Supervisory Sandbox (“FSS”) allows banks and their technology firms to conduct pilot trials of their fintech initiatives, which enables them to get feedback from a limited number of customers without fully complying with the HKMA’s supervisory requirements. The purpose is to gather user feedback so that they can make further refinements before launching their fintech initiatives.

The FSS has been linked with similar pilot testing facilities of overseas supervisory authorities. The HKMA is one of the participating regulators involved in the cross-border testing workstream of the Global Financial Innovation Network (“GFIN”).

In recent years, the Hong Kong Government has been working closely with the SFC in developing a comprehensive regulatory framework for trading of virtual assets (“VA”), including but not limited to crypto currencies and non-fungible tokens.

The SFC’s “Statement on Regulatory Framework for Virtual Asset Portfolios Managers, Fund Distributors and Trading Platform Operators” issued on 1 November 2018 only allows professional investors to invest in virtual assets portfolios and the SFC will regulate funds which intend to invest more than 10% of a mixed portfolio in virtual assets.

The SFC’s “Position paper: Regulation of Virtual Asset Trading Platforms” published on 6 November 2019 states that the regulatory framework covers all the key investor protection concerns, including safe custody of assets (please see Response 7 below for further details), market manipulation and cybersecurity. The standard is the same as the conventional securities brokers and automated trading system.

Pursuant to the “Joint circular on intermediaries’ virtual asset-related activities” issued by the SFC and the HKMA on 28 January 2022, the SFC and the HKMA, having considered the uneven global VA regulatory landscape, directed that VA-related products may only be distributed to professional investors. Intermediaries should also make appropriate assessment on whether their clients have knowledge of VA-related product investments prior to effecting any VA-related transactions. However, for VA-related derivative products traded on regulated exchanges specified by the SFC and exchange-trade VA derivative funds authorised or approved for offering to retail investors by the respective regulator, the “professional investor only” restriction does not apply and these VA-related products are available to retail investors.

On 31 October 2022, the SFC further issued a “Circular on Virtual Asset Futures Exchange Traded Funds” (“ETF Circular”), and it is the SFC’s current position that it will now accept applications for authorisation of VA Futures Exchange Traded Funds (“ETF”) subject to the usual applicable requirements for unit trusts and mutual funds, additional requirements as set out in the ETF Circular and any other specific requirements that the SFC may in its discretion further impose.

Following the Anti-Money Laundering and Counter-Terrorist Financing (Amendment) Bill 2022 passed on 7 December 2022, the amended Anti-Money Laundering and Counter-Terrorist Financing Ordinance (the “Amended AMLO”) introduced a new licensing regime for virtual asset service providers (“VASPs”). Under the new licensing regime, any person carrying on a business of providing any VA service is required to apply for a licence from the SFC. It provides that “VA service” shall only cover “operating a VA exchange” (see further below). The new regime aligns requirements for VA exchanges to traditional financial institutions in terms of anti-money laundering, counter-terrorist financing and investor protection.

Pursuant to the Amended AMLO, “operating a VA exchange” shall include providing services through means of electronic facilities that offer to sell or purchase virtual assets or whereby persons are regularly introduced or expected to negotiate or conclude sales or purchases of virtual assets and where client money or client virtual assets come into direct or indirect possession of the person providing such services.

“VA” or “virtual asset” is further defined under the Amended AMLO to mean, amongst others, a cryptographically secured digital representation that is expressed as a unit of account or a store of economic value that is either used as a medium of exchange accepted by the public for payment for goods or services, discharge of a debt, investment or provides certain rights to any cryptographically secured digital representation of value, which can be transferred, stored or traded electronically.

A 12-month transitional period shall start to run from the commencement date of the licensing regime, which is on 1 June 2023 (“Commencement Date”). Any corporation that has been carrying on the business of providing VA service in Hong Kong immediately before the Commencement Date may carry on VA Service in Hong Kong during the transitional period. Existing operators have to file an application with the SFC within the first nine months after the Commencement Date in order to be deemed to be licensed from the day after the expiry of the transitional period.

It should be noted that, at the time of writing, VASPs are only permitted to provide services to professional investors and such restriction will be imposed as part of the licence conditions by the SFC.

At the time of writing, Hong Kong does not have a specific regulatory regime recognising crypto assets as deposits.

The SFC’s “Position paper: Regulation of Virtual Asset Trading Platforms” regulates the platform operator’s manner regarding the custody of crypto assets. For example, it is recommended that a platform operator should hold client assets on trust for its clients through a company which (i) is an “associated entity” of the platform operator, (ii) is incorporated in Hong Kong, (iii) holds a “trust or company service provider licence” and (iv) is a wholly-owned subsidiary of the platform operator. The purpose of such recommendation is to ensure that clients’ virtual assets are properly segregated from those of the platform.

The SFC’s “Statement on virtual asset arrangements claiming to offer returns to investors” reminds that currently virtual asset arrangements are not regulated as deposits and shall not be regarded as bank deposits equivalent. Hence, at the time of writing, investors are not afforded with any form of protection or covered by deposit insurance.

The Basel Committee on Banking Supervision issued the “Prudential treatment of cryptoasset exposures” on 16 December 2022, which aims to provide a global baseline framework for banks’ cryptoasset exposures. Cryptoassets are to be categorised into two broad groups, namely (i) Group 1 cryptoassets consisting of qualifying tokenised assets and stablecoins that will be subject to the risk-based capital requirements of the existing Basel capital framework; and (ii) Group 2 cryptoassets consisting of all cryptoassets that fail to meet all of the Group 1 classification conditions. The standard is scheduled to be implemented by member jurisdictions by 1 January 2025. While the new Basel standard is not yet effective in Hong Kong, the HKMA has made it clear that it will be implemented locally in accordance with the BCBS timetable.

While there is no specific capital requirements under the new licensing regime (see Response 6 above), the SFC, when granting a licence, may impose any condition on the licence which may include requirements on financial resources.

BO and Chapter 8 of Guide to Authorisation issued by the HKMA state the application process but they do not specify the average timing.

Before submitting a formal application for an AI licence, the applicant may have a non-compulsory preliminary consultation with the HKMA.

When the applicant lodges an application for authorisation of an AI licence, documents listed under Annex 2 of Guide to Authorisation should be submitted to the HKMA, such as copies of memorandum and articles of association and a business plan for the first three years.

All formal applications for authorisation will be considered by a Banking Supervision Review Committee comprising senior officers of the HKMA and chaired by the Deputy Chief Executive (Banking). The HKMA must be satisfied that the applicant meets the minimum criteria stated under the Seventh Schedule to BO.

In the event the HKMA exercises its power to refuse to grant an authorisation, it is required to give the applicant the opportunity of being heard and if the HKMA eventually decides to refuse to grant authorisation, it must notify the applicant of the reasons for such refusal in writing.

Lastly, the HKMA does not specify the estimated time to process an application for an AI licence. The Guide to Authorisation states that the HKMA aims to process applications as quickly as possible. The length of time would depend on the particular circumstances of each application such as the completeness of information and quality of documents submitted.

An overseas applicant and a local applicant can apply to the HKMA for carrying out banking services in Hong Kong and overseas respectively.

An overseas applicant (a bank incorporated outside Hong Kong) seeking a licence to carry out banking services in Hong Kong can either set up a branch or a locally incorporated subsidiary for such purposes. BO (mainly the minimum criteria for authorisation under its Seventh Schedule) and Chapter 4 of the Guide to Authorisation issued by the HKMA set out the requirements of overseas application. All directors, controllers, chief executives and executive officers of an overseas applicant must be fit and proper to hold the particular position. The HKMA must know the identities of the controllers though no prior approval from the HKMA is required for such controllers. Also, the overseas applicant must maintain minimum levels of share capital and formulate a policy statement of liquidity risk management to ensure its financial stability. The overseas applicant must be under adequate supervision by its home supervisor in the opinion of the HKMA, after taking into account various factors including the legal and administrative powers and bank resolution regime of the overseas applicant’s home jurisdiction.

It may be of interest to note that generally, licence of deposit-taking companies is granted only to a locally incorporated subsidiary in Hong Kong since 1977.

Regarding local applicant seeking to establish an overseas branch, an AI incorporated in Hong Kong shall not do so without the approval of the HKMA. If an AI is allowed to maintain an overseas branch, it shall be subject to conditions under BO, such as submitting a form specifying the assets and liabilities of the overseas branch. Needless to say, the overseas branch must also be subject to the foreign law of the jurisdiction in which the overseas branch is located.

Under BO, it is stated that only companies incorporated under the Companies Ordinance (Cap. 622), the predecessor Companies Ordinance (Cap.32) and companies incorporated outside Hong Kong can operate as banks in Hong Kong. Generally, a limited company is the most common form of corporate vehicle to carry out banking services in Hong Kong.

The HKMA imposes the organisational requirements for banks. The SPM “Corporate Governance of Locally Incorporated Authorised Institutions” issued by the HKMA regulates the composition of the board of directors of a bank. The size and composition of the board will vary, depending upon the size, complexity and risk profile of the bank. The board members should possess a range of knowledge and experience in relevant areas and should have a reasonable understanding of local, regional and global market. Chair of the board should be an independent non-executive director (“INED”) or a non-executive director, and he shall ensure that board decisions are taken on a sound and well-informed basis and in the best interest of the AI. The responsibilities of the board of directors include setting out strategic plans and overseeing AI’s capital adequacy assessment to ensure adequate capital and sufficient liquidity to cover the risk exposures, and establishing a risk management framework to minimise the risks to the bank, as well as setting out disciplinary actions for staff who takes excessive risk.

The SPM “Guideline on a Sound Remuneration System” issued by the HKMA sets out the principles in relation to the remuneration systems of AIs to ensure they are consistent with and promote effective risk management and contribute toward acceptable staff behaviour.

The board of directors of an AI should establish a remuneration system which is consistent with the AI’s culture, long-term business plan, and legal and regulatory requirements.

An AI should also set up a remuneration committee chaired by an INED and its members or majority of its members should be made up of INEDs. The duties of the committee include independent evaluations of the remuneration practices to ensure that they are consistent with an assessment of AI’s financial condition, and making recommendations of remuneration practices to ensure compliance with the legal and regulatory requirements.

Hong Kong has implemented the capital requirements of the 2011 Basel III framework such as capital adequacy ratio, credit valuation adjustment (“CVA”) capital charge and capital buffers by amending the Banking (Capital) Rules (Cap. 155L) (“BCR”) which came into effect on 1 January 2013, 30 June 2013 and 1 January 2015 respectively. Amendments to BCR for the implementation of the standardised approach for measuring counterparty credit risk exposures and the capital requirements for bank exposures to central counterparties also took effect on 30 June 2021.

As regards the implementation of the revised or new capital standards under the 2017 Basel III final reform package, the HKMA on 10 June 2021 issued the circular “Revised Basel III Implementation Timeline” and it states that the corresponding frameworks including (i) the revised frameworks on credit risk, operational risk, output floor and leverage ratio and (ii) the revised market and CVA risk frameworks, together with their corresponding disclosure framework, will take effect from 1 July 2023 and 1 January 2024 respectively. The HKMA aims to substantially complete the drafting of the relevant rules by the end of 2022. It is yet to be known whether there will be any major deviations from the framework.

BCR applies to all locally incorporated AIs.

BCR states that a locally incorporated AI must not at any time have a leverage ratio of less than 3%. AIs failing to comply with the leverage ratio requirement must immediately notify the HKMA and provide the particulars of the failure to the HKMA if so requested.

Hong Kong has implemented the Basel III Liquidity Coverage Ratio (“LCR”) and Net Stable Funding Ratio (“NSFR”) requirements by introducing and amending the Banking (Liquidity) Rules (Cap. 155Q) which came into effect on 1 January 2015 and 1 January 2018 respectively. Apart from the above Basel III requirements, Hong Kong has also implemented other liquidity ratios such as Liquidity Maintenance Ratio (“LMR”) and Core Funding Ratio (“CFR”). The HKMA classifies AIs into 3 categories of institutions (namely category 1, category 2 and category 2A), each has a different liquidity requirement.

Category 1 institutions refer to institutions which are internationally active or significant to the general stability of the local banking system or its liquidity risk is material. Category 2 institutions are AIs not classified as category 1 institutions, but some of them may be classified as category 2A institutions by the HKMA after taking into account their business size and liquidity risk.

As category 1 institutions have greater influence over the banking system, they are required to comply with a stricter liquidity requirement to maintain the LCR and the NSFR of not less than 100% at all times, while category 2 institutions must maintain an LMR of not less than 25% on average in each calendar month. Category 2A institutions are considered to have a greater liquidity risk than the category 2 institutions, so they are not only required to maintain an LMR at 25%, but also a CFR at not less than 75% on average in each calendar month.

An AI must make interim and annual financial disclosures in compliance with the prevailing accounting standards. AIs incorporated in Hong Kong shall lodge copies of their audited annual accounts, the report of the auditors and report of the directors with the HKMA, not later than 4 months after the close of each financial year; while AIs incorporated outside Hong Kong shall lodge copies of their audited annual balance sheet, profit and loss account, report of auditors and report of directors with the HKMA, not later than 6 months after the close of each financial year. For the interim financial disclosures, AIs should prepare the interim financial report with the accounting and measurement principles so applied in the interim period.

AIs should also make disclosures for each annual, semiannual and quarterly reporting period in accordance with the respective disclosure templates and tables. For example, AIs incorporated in Hong Kong should disclose their overview of risk management annually, composition of regulatory capital semi-annually and their key prudential ratios quarterly.

The SPM “Group-wide Approach to Supervision of Locally Incorporated Authorised Institutions” issued by the HKMA provides the consolidated supervision of an AI in Hong Kong.

It provides that the HKMA should exercise consolidated supervision of AIs by application of quantitative prudential limits such as on capital adequacy, leverage ratio, liquidity and connected lending. To assess the nonquantifiable risks posed to the AIs, the HKMA will consider qualitative factors including the group’s organisational structure, corporate governance, quality of management, risk management systems and internal controls.

The HKMA has the overriding power to supervise the banking activities to ensure the stability of banking system. It may gather information from an AI (or any subsidiaries of the AI) relevant for its supervision. To address the risks posed to AIs, the HKMA may impose restrictions on an AI’s operations such as limiting financial exposures to its subsidiaries, and to attach conditions to its operations.

According to BO, controllers of AIs may be classified as (i) minority shareholder controllers, which means any person who either alone or with associates controls 10% to 50% of the voting rights of an AI or of another company of which the AI is a subsidiary, (ii) majority shareholder controllers, which means any person who either alone or with associates controls over 50% of the voting rights of an AI or of another company of which the AI is a subsidiary, and (iii) indirect controllers, which mean any person in accordance with whose directions or instructions of the directors of an AI or of another company of which the AI is a subsidiary are accustomed to act.

The person intending to become a controller of an AI incorporated in Hong Kong shall serve the HKMA with a written notice for approval. The HKMA may serve a notice of consent, after taking into account various consideration, for example, whether the person is fit and proper and the interests of the customers are not threatened. To safeguard the interests of an AI, the HKMA may however serve a conditional notice of consent which restricts the power of a controller or serve a notice of objection if it thinks fit.

BO requires that a director, chief executive, executive officer, or controller as referred to in Response 19 above of an AI is a fit and proper person to hold the particular position, taking into account a range of consideration such as experience, knowledge, skills and record of integrity. As the fit and proper test is on an on-going basis, the HKMA will evaluate the AIs’ board members and senior management from time to time, including conducting face-to-face meetings with the serving directors and candidates of the board.

No.

The HKMA is empowered under BCR to designate the AIs incorporated in Hong Kong as global systemically important AIs (“G-SIBs”) or domestic systemically important AIs (“D-SIBs”) and to determine their Higher Loss Absorbency (“HLA”) requirements. There is currently no G-SIB headquartered and incorporated in Hong Kong, while there are currently five D-SIBs in Hong Kong. HLA ratio for both G-SIBs and D-SIBs must be not less than 1% and not more than 3.5% since 1 January 2019.

The HKMA has a more stringent supervision and control over D-SIBs. For example, in order to minimise the risk exposure to D-SIBs, the HKMA identifies potential risks to the domestic financial system which may affect the risk profile of D-SIBs and regularly uses risk or audit reports to evaluate the D-SIBs’ risk mitigation measures.

The regulators can impose different sanctions for different violation of banking regulations.

For less serious violation, such as non-compliance of the disclosure requirements of Banking (Disclosure) Rules (Cap.155M), the HKMA may require an AI to rectify the errors or omissions in its disclosure statements by written notice. The HKMA may also order a pecuniary penalty, for example, if the regulated person violates the regulation of payment systems and stored value facilities activities.

For more serious violation, such as carrying on banking business without a banking licence or an AI contravening the conditions attached under its licence, criminal prosecution may be instituted and revocation of licence may apply.

The HKMA has several options to deal with the situation where an AI faces financial difficulty.

The HKMA may deploy one or more of the stabilisation options available under FIRO, including:

• transfer some or all of the business of a failing AI to a purchaser;
• transfer some or all of the business of a failing AI to a bridge institution;
• transfer some or all of the assets, rights and liabilities of a failing AI to an asset management vehicle;
• make bail-in instruments (please refer to Response 26 below for further details); and/or
• (as a last resort) transfer some or all of the business of a failing AI to a temporary public ownership company.

When the restructuring conducted by the above measures can address the financial difficulty, the resolution may be brought to a close.

Apart from the resolution regime established by FIRO, under BO, in the situation where an AI informs the HKMA that it is or is likely to be unable to meet its obligations, or the HKMA thinks that an AI is or is likely to become insolvent, the HKMA may, after consulting the Financial Secretary, take the following actions:

• require an AI to do any act in relation to its affairs, business and property, such as restricting the institution from expanding its business and disposing of assets;
• direct an AI to seek the advice of an advisor appointed by the HKMA on the management of its affairs, business and property;
• appoint a manager to safeguard the assets of the AI; and/or
• report the circumstances to the Chief Executive in Council, which may direct the Financial Secretary to present a petition to the court for the winding-up of the AI.

The Deposit Protection Scheme Ordinance (Cap.581) (“DPSO”) aims to protect most types of deposits denominated in any currency held with the Hong Kong offices of every licensed bank in Hong Kong. Structured deposits, bearer form deposits, and time deposits with an original term to maturity longer than five years, are not covered. The maximum protection is up to HK$500,000 per depositor per bank including both principal and interest. The protection will be triggered when a winding-up order has been made by the court in respect of the bank.

FIRO provides the bail-in instruments. The HKMA may make one or more bail-in instruments in respect to an AI. A bail-in provision can cancel, modify or change the form of a liability owed by an AI. Changing the form of a liability includes:

• converting or replacing an instrument under which an AI owes a liability from one form to a form or class of any other;
• creating a new security in connection with the modification of such an instrument; and
• converting those liabilities into securities issued by a bridge institution or a holding company of an AI that is incorporated in Hong Kong.

Certain types of liabilities are excluded from bail-in instruments as stated in paragraph 2 of Schedule 5 to FIRO, including liabilities representing protected deposits under DPSO.

Bail-in stabilisation, subject to fulfillment of certain conditions, may be used to restore the viability of a failing AI by recapitalising the distressed bank and transferring the losses of the failure to its shareholders and certain creditors.

Locally incorporated AIs are required to hold capital on a going concern basis or on a gone concern basis, according to the SPM “Overview of Capital Adequacy Regime for Locally Incorporated Authorised Institutions” issued by the HKMA. The AI’s Tier 1 capital is intended to absorb losses on a going concern basis while its Tier 2 capital is intended to absorb losses on a gone concern basis (i.e. when an AI is no longer able to continue its activities as going concern).

According to Financial Institutions (Resolution) (Lossabsorbing Capacity Requirements—Banking Sector) Rules (Cap. 628B), the HKMA, as the resolution authority may require a resolution entity which is a G-SIBs to meet the minimum Total Loss-absorbing Capacity (“TLAC”) requirements under the Financial Stability Board’s TLAC term sheet, by increasing its minimum external Lossabsorbing Capacity (“LAC”) risk-weighted ratio and minimum external LAC leverage ratio.

The capital adequacy requirements are applicable only to locally incorporated AIs. Overseas banks which operate as branches in Hong Kong are not subject to capital ratio requirements since they are not required to hold capital in Hong Kong.

Virtual banks and virtual assets are subject to more bank regulations in Hong Kong in recent years.

In view of the growth of virtual banks applications in Hong Kong, the HKMA has recently issued “Guideline on Authorisation of Virtual Bank”. It is expressly stated that the HKMA will give priority to process virtual bank applicants who can demonstrate sufficient financial and technology resources, have a credible and viable business plan and have developed an appropriate IT platform.

Following several crypto-related frauds and scandals in the past few years which resulted in substantial financial losses to the relevant investors, the issue as to high exposure of risks arising from the volatility and unregulated status of the virtual asset market have been put under spotlight and attracted global attention. Hong Kong authorities have recognised the increasing acceptance of virtual assets as an investment vehicle by investors, to catch up with global development, such authorities have been actively involved in developing a regulatory regime for virtual assets in order to create a secure and regulated trading environment for investors. With the implementation of the new licensing regime under the Amended AMLO, it is reasonably foreseeable that regulation in Hong Kong over virtual assets will become more systematic and mature that will further expand to cover retail investors.

AIs have become one of the most popular targets of cyber attacks, given that they have increased their reliance on technologies. The rise of cybercrime such as e-banking fraud and email scam may disrupt the banking services. The HKMA is putting more emphasis on combating against cybercrime and implementation of anti-money laundering (“AML”) measures. For example, AIs are encouraged to implement more innovative AML measures such as using new network analytics to facilitate more effective alert examination, increasing public-private collaboration to share experiences and offering more trainings with updated materials to AI staff.