Chambers’ Review on our SW Private Client Practice:

What the team is known for:
Stevenson, Wong & Co houses a solid family law practice handling a range of complex, contentious matters involving high-value assets. It is especially skilled in ancillary relief cases. In addition to advising on divorce law, the team is also well versed in succession planning, probate applications and wardship issues. The practice is also notable for non-contentious work, such as prenuptial and postnuptial agreements.

Strengths
“Stevenson, Wong & Co is a longstanding practice, and has maintained a good practice.”

Chambers’ Review on our Senior Consultant, Ms. Catherine Por:
Catherine Por is well recognized for her expertise handling family and matrimonial matters. She is regularly sought out by clients to advise on post-separation financial and child issues, as well as trust and estate matters.

Strengths:
“She has good knowledge of the law, a pragmatic and sensible approach, and is able to handle any case with relative ease, no matter the complexity.”

“Catherine is an excellent, warm and kind lawyer with vast experience. She is superb and has a no-nonsense style.”

About Chambers and Partners

Chambers is known for its objectivity and rigour and is a trusted, authoritative reference for clients around the world seeking exceptional legal services. It is also widely regarded as one of the most important rating guides in the legal profession. Chambers’ dedicated research team selected the top law firms and lawyers by conducting market analysis on the legal fields in Greater China and interviews with in-house counsels and lawyers.

For more information, please contact our Partner and Head of SW Private Client Ms. Wendy Lam or Ms. Catherine Por, or visit Chambers and Partner’s Greater China 2023 guide here.

Our Partner and Head of Banking and Finance practice, Ms. Heidi Chui, said, “It is a great honour for our Banking and Finance team to be recognised by The Legal 500. We sincerely thank our clients for their long-term trust and support. Our team will continue to provide professional services in cross-border loan transactions, project financing and derivative products; and fully support our clients in the new area of Fintech. In addition, we will continue to work closely with our clients, especially in the Greater Bay Area, to deliver professional, highly effective legal services.”

Our team provides a full range of legal services to clients from banking and financial institutions across Hong Kong and China. We have extensive expertise in all aspects of banking and finance and can provide clients with practical and effective legal advice. We are on the approved list of all the major banks in Hong Kong, reflecting our significant industry expertise.

Please contact our Partner and Head of Banking and Finance, Ms. Heidi Chui or visit The Legal 500 Asia Pacific Guide here for any inquiries.

Definition of “crowdfunding”

“Crowdfunding activities” refers to “those conducted by an individual, a group or an organisation for openly appealing to a large number of individuals or organisations to each contribute usually a small amount of money for a specific fundraising purpose, so that the fundraiser may have sufficient funding to carry out a project, a business or meet the needs in respect of that purpose” ⁱⁱ.

The receipt of certain benefits or returns upon a competition of a crowdfunding activity is not a definitive feature. Some fund contributors may not expect any personal returns if they care only about the pursuit of the purpose of the activity ⁱⁱⁱ .

A non-exhaustive list of the major common types of crowdfunding activities is set out as follows ^iv:

(1) Equity or debt crowdfunding: fund contributors invest in a project or a business, usually a start-up, in return for equities or debts issued by a company, or profits or income of a Collective Investment Scheme (“CIS”);

(2) Peer-to-peer lending (“P2P lending”): fund contributors provide unsecured loans to individuals or projects through online platforms that match them with borrowers, from which interests are earned;

(3) Donation-based crowdfunding: fund contributors make donations to (non-) charitable activities or causes they support without getting any specific returns; and

(4) Reward/pre-sale crowdfunding: fund contributors give funds to fundraisers to help them develop or produce physical goods or services, while receiving in some form the goods or services in return.

Background Issues

Hong Kong has regulatory measures over fundraising activities that invite fund contribution from the general public. Depending on the actual mode of operation of the fundraising activity, fundraisers may be required to obtain a permit or licence. Currently charitable fundraising activities, non-charitable fundraising activities conducting in public places, sale of goods in public places for the purpose of fundraising and lottery fundraising activities are subject to regulations ^v . It should be noted that other crowdfunding activities may or may not be regulated by the current regulatory measures.

Online crowdfunding activities, which allow fundraisers to raise funds conveniently and at lower costs and to attract a larger pool of potential fund contributors in a flexible manner, have been catalysed as a result of the widespread use of communications technology and online platforms. Given the more diverse nature and contexts of application involved in crowdfunding, the risks of conducting online crowdfunding activities are stated below ^vi :-

The risks of online crowdfunding activities magnify the underlying issue that Hong Kong does not have a dedicated regulatory authority to deal specifically with the more diverse types of crowdfunding activities, in particular the online ones. The FTSB therefore identifies the necessity to enhance regulations over crowdfunding activities.

Proposed Measures to Regulate Crowdfunding Activities

A Crowdfunding Affairs Office (“CAO”) is proposed to be established to centrally process and coordinate regulatory and administrative matters, and monitor the conduct of crowdfunding activities ^vii. The key function of the CAO is to process crowdfunding applications not covered by the existing legislation. In other words, all fundraising activities, be they online or offline, are required to apply in advance to the CAO.

The CAO as the central authority will take up the responsibility to receive all the applications submitted for conducting crowdfunding activities, refer them to the relevant government departments by their types, coordinate the approval process, issue guidelines and collect the completion records of crowdfunding acitivites and publishing these records for public inspection as appropriate ^viiii .

Under the proposed regime, a fundraiser who intends to publicise a crowdfunding activity that raises funds from individuals or entities of Hong Kong, or individuals or entities located in Hong Kong, must make an application to and obtain a prior approval from the CAO before conducting the activity, regardless of whether he is not in Hong Kong or not, or whether the fundraiser is an entity established in Hong Kong or not ^ix .

If a person starts to conduct a crowdfunding activity before applying to the CAO in accordance with the established procedures or before obtaining a prior consent, a prohibition order to discontinue the activity will be issued to the fundraiser. As the case requires, a fine can be imposed on and prosecution action can be taken against the fundraiser ^x .

When processing applications, the CAO will take into account reliability of the individuals involved, the risks of the activity that might give rise to illegal conducts or endangering public interests, public safety and national security before giving approvals. The honesty, reputation and reliability of the applicant will particularly be placed with more emphasis if the fund size the number of fund contributors are large ^xi .

In making an application, an applicant shall bear in mind the following obligations^xii :-

(1) State clearly the set-up and arrangement of the activity based on the purpose and nature of the fundraising activity;

(2) Keep proper records of fund movements and disclose the use of funds raised;

(3) Provide relevant records and other information related to the crowdfunding activities upon the requests made by the CAO and relevant law enforcement agencies; and

(4) Actively consult and seek assistance from the relevant financial institutions in regard to the practical operation of the requirement for fund contributors making donations in their real name, upon the request from the CAO.

Upon getting an approval, the applicant must publish the approval number on all documents or advertisements related to the crowdfunding activity, and obtain information on the identities of persons donating funds from any crowdfunding platforms, financial institutions or payment service providers they cooperate with ^xiiii .

Set out below are the fundraising activities that are regulated under the existing regulatory regimes and hence excluded from the proposed regulatory regime:-

(1) Fundraising activities that are regulated by the Securities and Futures Commission (the “SFC”) under the Securities and Futures Ordinance (Cap 571), including any fundraising via issuance of equity or debt “securities”, P2P lending business involving “CIS” and any fundraising which amount to “regulated activities” that falls under the statutory regulation functions of the SFC ^xi ; and

(2) Fundraising activities that are regulated by the Monetary Authority under the Banking Ordinance (Cap 155), including banking activities such as deposit-taking and the making of loans and advances ^xv .

Other fundraising activities in the community that are substantially different in nature from the crowdfunding activities intended to be subject to the enhanced regulation are also excluded:-

(1) Calls that religious bodies make to their followers for donations on religious grounds, such that the calls for making regular donations on contributing to festive activities held on the ground of religious doctrines ^xvi ;

(2) Activities that recognised associations solicit funds from members, with a view to promoting the welfare and needs of respective trade members ^xvi ;

(3) Buying and selling of goods or services readily available in the market, even though the buying and selling may be conducted online and may involve recruiting people to buy as a group ^xvii ; and

(4) Commercial activities on online media and the like that involve income from subscriptions or online awards ^xix .

It should be noted that even if the crowdfunding activity falls under any of the above exemption categories, the CAO nevertheless reserve the right to direct it to apply for the conduct of such activity following the normal procedures. In any event the exclusion of the above exemption categories from the crowdfunding approval and registration system does not mean they will not be regulated, for instances, those involving other criminal conducts such as fraud ^xx.

Proposed Registration System for Online Crowdfunding Platforms

The FSTB is inviting public views to consider whether a registration system should be established for online crowdfunding platforms to register with the CAO given that many of them are set out outside Hong Kong.

Set out below are the functions the proposed registration system for crowdfunding platforms is expected to perform ^xxi :-

(1) Providing adequate background information of the company, organisation or individual operating the platform for reference by crowdfunding participants;

(2) At least one person with a physical address in Hong Kong will be designated as the representative of the company, organisation or individual operating the platform in Hong Kong; and

(3) The CAO can follow up with the company, organisation or individual operating the platform for information which is necessary to regulate the crowdfunding activities in Hong Kong.

Analysis and Takeaways

Newly emerging crowdfunding activities are picking up steam in the market but often remain as a lacuna within the current regulatory regime over fundraising activities. It is therefore appropriate to develop a regulatory regime to cover the online crowdfunding activities. Under the newly proposed regulatory regime by the FSTB, all fundraising activities that raise funds from the general public in Hong Kong are required to apply to and obtain prior approval from the CAO, whether they are based in Hong Kong or not, unless otherwise excluded. The CAO is suggested to publish guidelines as to the actual implementation of the one-stop crowdfunding approval, registration and administrative framework for the sake of market compliance.

Please contact our Partner Mr. Rodney Teoh for any enquiries or further information.

This news update is for information purposes only. Its content does not constitute legal advice and should not be treated as such. Stevenson, Wong & Co. will not be liable to you in respect of any special, indirect or consequential loss or damage arising from or in connection with any decision made, action or inaction taken in reliance on the information set out herein.

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