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Directors

 
Q1.

Is there any restriction on the number of directors for a private company under the Companies Ordinance (Cap. 622)?

 
Q2.

My company was incorporated before the commencement of the Companies Ordinance (Cap. 622) on 3 March 2014 as a private company and had only one director which is a body corporate on 3 March 2014. Do I have to appoint a director who is a natural person immediately after 3 March 2014?

 
Q3.

My company was incorporated after 3 March 2014. Is the grace period of 6 months in respect of the requirement to have at least one director who is a natural person applicable to my company?

 
Q4.

What form should I use to report the appointment of directors or directors ceasing to hold office? What is the prescribed time for delivery of the form?

 
Q5.

What form should I use to report a change in particulars of directors? What is the prescribed time for delivery of the form?

 
Q6.

The existing director resigned and a new director was appointed on the same date. Should the resigning director or the new director sign the Form ND2A to report these changes in directors?

 
Q7.

Can a non-Hong Kong resident be appointed as a director and company secretary of a local limited company?

 
Q8.

In a case where a director of the company resigns, is it necessary for the resigning director to deliver a Form ND4 for registration if the company has already notified the Registrar of Companies of the resignation in the specified form ND2A?

 
Q9.

Where a notice of resignation of a director is required to be given, can the notice be given by email notification? Is an electronic signature required for such an email?

 
Q10.

Under what circumstances can a Reserve Director be nominated?

 
Q11.

Is it mandatory to nominate a Reserve Director?

 
Q12.

Can a sole director of the company act as the company secretary too?

 
Q13.

Is there any restriction on corporate directorship under the Companies Ordinance (Cap. 622)?

 
Q14.

Can a body corporate act or be appointed as a director of a private company?

 

Company Secretary

 
Q15.

Are there any changes in the reporting requirements for company secretaries under the Companies Ordinance (Cap. 622)?

 
Q16.

My company was incorporated before the commencement of the Companies Ordinance on 3 March 2014. Do I need to report the correspondence address of the existing individual company secretary of my company?

 
Q17.

If my company was incorporated before 3 March 2014 and has not reported the correspondence address of the existing individual company secretary on or after 3 March 2014, what information will be shown in the Companies Register as the correspondence address of the company secretary?

 
Q18.

What form should I use to report the appointment of company secretary or company secretary ceasing to hold office? What is the prescribed time for delivery of the form?

 
Q19.

What form should I use to report a change in particulars of company secretary? What is the prescribed time for delivery of the form?

 
Q20.

In a case where the company secretary of a company resigns, is it necessary for the resigning company secretary to deliver a Form ND4 for registration if the company has already notified the Registrar of Companies of the resignation in the specified form ND2A?

 
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Q1.

Is there any restriction on the number of directors for a private company under the Companies Ordinance (Cap. 622)?

 
Answer:

Yes. Section 457(2) of the Companies Ordinance (Cap. 622) requires that every private company must have at least one director who is a natural person (i.e. an individual).

 
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Q2.

My company was incorporated before the commencement of the Companies Ordinance (Cap. 622) on 3 March 2014 as a private company and had only one director which is a body corporate on 3 March 2014. Do I have to appoint a director who is a natural person immediately after 3 March 2014?

 
Answer:

Pursuant to sections 89(1) and (2) of Schedule 11 to the Companies Ordinance (Cap. 622), there is a grace period of 6 months after the commencement of the Companies Ordinance (Cap. 622) on 3 March 2014 for companies registered under the Predecessor Ordinance (i.e. the Companies Ordinance (Cap. 32) as in force from time to time before the commencement date of the Companies Ordinance (Cap. 622)) to comply with the new requirement. The grace period has expired on 4 September 2014. Private companies not having at least one director who is a natural person should comply with the requirement without further delay. Appointment of new directors should be reported to the Registrar of Companies in the specified form “Notice of Change of Company Secretary and Director (Appointment╱Cessation)” (Form ND2A) within 15 days pursuant to section 645 of the Companies Ordinance (Cap. 622).

 
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Q3.

My company was incorporated after 3 March 2014. Is the grace period of 6 months in respect of the requirement to have at least one director who is a natural person applicable to my company?

 
Answer:

No. The grace period only applies to private companies registered pursuant to the Predecessor Ordinance (i.e. the Companies Ordinance (Cap. 32) as in force from time to time before the commencement date of the Companies Ordinance (Cap. 622)). All private companies registered under the Companies Ordinance (Cap. 622) must have at least one natural person as director on incorporation.

 
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Q4.

What form should I use to report the appointment of directors or directors ceasing to hold office? What is the prescribed time for delivery of the form?

 
Answer:

You should deliver a Form ND2A "Notice of Change of Company Secretary and Director (Appointment╱Cessation)" to report the appointment of directors or cessation to act as directors within 15 days after the appointment or cessation for registration.

 
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Q5.

What form should I use to report a change in particulars of directors? What is the prescribed time for delivery of the form?

 
Answer:

You should deliver a Form ND2B “Notice of Change in Particulars of Company Secretary and Director” to report the change in particulars of directors within 15 days after the date of change for registration.

 
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Q6.

The existing director resigned and a new director was appointed on the same date. Should the resigning director or the new director sign the Form ND2A to report these changes in directors?

 
Answer:

If the form is signed on the effective date of change, it can be signed by the resigning director or the new director. However, if the form is signed after the effective date of change, it should be signed by the new director.

 
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Q7. Can a non-Hong Kong resident be appointed as a director and company secretary of a local limited company?
 
Answer:

A non-Hong Kong resident can be appointed as a director of a local limited company. However, the company secretary, who is a natural person, should ordinarily reside in Hong Kong. For company secretary which is a body corporate, its registered office or place of business should be in Hong Kong.


A private local limited company must have at least one director who is a natural person and one company secretary. The sole director cannot act as the company secretary of the same company.

 
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Q8. In a case where a director of the company resigns, is it necessary for the resigning director to deliver a Form ND4 for registration if the company has already notified the Registrar of Companies of the resignation in the specified form ND2A?
 
Answer:

If the company has already delivered the Form ND2A to report the resignation of its director, it is not necessary for the resigning director to deliver the Form ND4 for registration. It is only when the resigning director has reasonable grounds to believe that the company will not give notification of this fact to the Registrar of Companies that a Form ND4 should be delivered for registration.

 
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Q9. Where a notice of resignation of a director is required to be given, can the notice be given by email notification? Is an electronic signature required for such an email?
 
Answer:

Pursuant to section 464(5)(c) of the Companies Ordinance (Cap. 622) (“CO”), a resigning director may send his resignation notice by way of email to the company provided that the conditions in section 828(2) (communication to company by person who is not company) or section 831(3) (communication between companies) of the CO governing communication in electronic form are met. In brief, it is one of the conditions that the company should have agreed, generally or specifically, that the document or information may be sent or supplied to it in electronic form and the company has not revoked the agreement; or is to be regarded under a provision of the CO as having so agreed.


Section 464 of the CO does not require a director’s written resignation notice to be signed. Accordingly, an electronic signature is not required for a notice of resignation given by email.

 
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Q10. Under what circumstances can a Reserve Director be nominated?
 
Answer:

According to section 455 of the Companies Ordinance (Cap. 622), if a private company which has only one member and that member is the sole director of the company, the company may nominate a person (other than a body corporate) who has attained the age of 18 years as a Reserve Director to act in the place of the sole director in the event of the sole director’s death.

 
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Q11. Is it mandatory to nominate a Reserve Director?
 
Answer:

No. It is an option available to the company. A company which satisfies the criteria set out in section 455 of the Companies Ordinance (Cap. 622) may choose to nominate a Reserve Director at any time.

 
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Q12. Can a sole director of the company act as the company secretary too?
 
Answer:

No. Section 475(2) of the Companies Ordinance (Cap. 622) expressly prohibits the sole director from acting as the company secretary. Besides, section 475(3) of the Companies Ordinance (Cap. 622) provides that no private company having only one director may have a body corporate as its company secretary if the sole director of that body corporate is also the sole director of the private company.

 
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Q13. Is there any restriction on corporate directorship under the Companies Ordinance (Cap. 622)?
 
Answer:

Section 456 of the Companies Ordinance (Cap. 622) sets out the restriction on corporate directorship in public companies, companies limited by guarantee and private companies which are members of a group of companies of which a listed company is a member. This restriction, however, does not apply to other private companies which are required to have at least one director who is a natural person to enhance transparency and accountability.

 
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Q14. Can a body corporate act or be appointed as a director of a private company?
 
Answer:

So long as the private company is not a member of a group of companies of which a listed company is a member, a body corporate can act or be appointed as its director. However, section 457 of the Companies Ordinance (Cap. 622) requires that every private company must have at least one director who is a natural person.

 
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Q15. Are there any changes in the reporting requirements for company secretaries under the Companies Ordinance (Cap. 622)?
 
Answer:

Yes. Company secretaries who are natural persons are only required to report their correspondence addresses to the Registrar of Companies instead of their usual residential addresses.

 
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Q16. My company was incorporated before the commencement of the Companies Ordinance on 3 March 2014. Do I need to report the correspondence address of the existing individual company secretary of my company?
 
Answer:

According to section 118(5) of Schedule 11 to the Companies Ordinance (Cap. 622), in the case of a company secretary of an existing company who is a natural person, the address of the company’s registered office is to be regarded, on and after the commencement date of section 650, as the correspondence address of the company secretary. The operation of section 118(5) does not give rise to any duty to deliver a notice of change in particulars of the company secretary to the Registrar of Companies under section 652 of the Companies Ordinance (Cap. 622).

 
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Q17. If my company was incorporated before 3 March 2014 and has not reported the correspondence address of the existing individual company secretary on or after 3 March 2014, what information will be shown in the Companies Register as the correspondence address of the company secretary?
 
Answer:

According to section 27(3) of the Companies Ordinance (Cap. 622), the Registrar of Companies must record the address of the company's registered office as shown on the register of companies under the Predecessor Ordinance (i.e. the Companies Ordinance (Cap. 32) as in force from time to time before the commencement date of the Companies Ordinance (Cap. 622)) immediately before the commencement date of the section (i.e. 3 March 2014) as the correspondence address of the company secretary.

 
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Q18. What form should I use to report the appointment of company secretary or company secretary ceasing to hold office? What is the prescribed time for delivery of the form?
 
Answer:

You should deliver a Form ND2A "Notice of Change of Company Secretary and Director (Appointment╱Cessation)" to report the appointment of company secretary or company secretary ceasing to hold office within 15 days after the appointment or cessation for registration.

 
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Q19. What form should I use to report a change in particulars of company secretary? What is the prescribed time for delivery of the form?
 
Answer:

You should deliver a Form ND2B "Notice of Change in Particulars of Company Secretary and Director" to report the change in particulars of company secretary within 15 days after the change for registration.

 
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Q20. In a case where the company secretary of a company resigns, is it necessary for the resigning company secretary to deliver a Form ND4 for registration if the company has already notified the Registrar of Companies of the resignation in the specified form ND2A?
 
Answer:

If the company has already delivered the Form ND2A to report the resignation of its company secretary, it is not necessary for the resigning company secretary to deliver the Form ND4 for registration. It is only when the resigning company secretary has reasonable grounds to believe that the company will not give notification of this fact to the Registrar of Companies that a Form ND4 should be delivered for registration.

 
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