Hong Kong Ordinances

COMPANIES ORDINANCE - SECT 38D

Registration of prospectus

(Past version on 01/04/2003).
(Past version on 01/07/1997).
(Past version on 30/06/1997).

(1) No prospectus shall be issued by or on behalf of a company unless the
prospectus complies with the requirements of this Ordinance and, on or before
the date of its publication, its registration has been authorized under this
section and a copy thereof has been registered by the Registrar.

(2) Every prospectus shall-

   (a)  on the face of it, state that a copy has been registered as required
        by this section and immediately after such statement-

        (i)    state that neither the Commission nor the Registrar takes any
               responsibility as to the contents of the prospectus;

        (ii)   where the prospectus is or is to be authorized for issue by a
               recognized exchange company pursuant to a transfer order made
               under section 25 of the Securities and Futures Ordinance (
               Cap 571), state that neither the Commission nor the
               recognized exchange company nor the Registrar takes any
               responsibility as to the contents of the prospectus; or

        (iii)  where the prospectus is or is to be authorized for issue by a
               recognized exchange controller pursuant to a transfer order
               made under section 68 of that Ordinance, state that neither the
               Commission nor the recognized exchange controller nor the
               Registrar takes any responsibility as to the contents of the
               prospectus; (Replaced 5 of 2002 s. 407)

   (b)  on the face of it, specify or refer to statements included in the
        prospectus which specify, any documents required by this section to be
        endorsed on or attached to the copy so registered; and

   (c)  conform with such requirements as are prescribed by the Chief
        Executive in Council or specified by the Registrar under section 346
        which are applicable to prospectuses to be registered under this Part.
        (Amended 23 of 1999 s. 3)

(3) An application for authorization for registration of a prospectus under
this section shall be made in writing to the Commission and there shall be
delivered to the Commission together with the application a copy of the
prospectus proposed to be registered which has been signed by every person who
is named therein as a director or proposed director of the company or by his
agent authorized in writing and having endorsed thereon or attached thereto-

   (a)  any consent to the issue of the prospectus required by section  38C
        from any person as an expert; and

   (b)  in the case of a prospectus issued generally, also-

        (i)    a copy of any contract required by paragraph 17 of the Third
               Schedule to be stated in the prospectus or, in the case of a
               contract not reduced into writing, a memorandum giving full
               particulars thereof or, if in the case of a prospectus exempted
               under section 38A from compliance with the requirements of
               section 38(1), a contract or a copy thereof or a memorandum of
               a contract is required by the Commission to be available for
               inspection in connection with the request made under
               section 38A(1), a copy or, as the case may be, a memorandum of
               that contract;

        (ii)   where the prospectus offers shares in the company for sale to
               the public, a list of the names, addresses and descriptions of
               the vendor or vendors of the shares; and

        (iii)  where the persons making any report required by Part II of the
               Third Schedule have made therein, or have, without giving the
               reasons, indicated therein, any such adjustments as are
               mentioned in paragraph 42 of that Schedule, a written statement
               signed by those persons setting out the adjustments and giving
               the reasons therefor.

(4) The references in subsection (3)(b)(i) to the copy of a contract required
thereby to be endorsed on or attached to a copy of the prospectus shall, in
the case of a contract wholly or partly in a language other than English or
Chinese, be taken as references to a copy of a translation of the contract in
either language or a copy embodying a translation in English or Chinese of the
parts not in either language, as the case may be, being a translation
certified in the prescribed manner under subsection (10) to be a correct
translation. (Amended 83 of 1995 s. 7; 30 of 2004 s. 2)

(5) The Commission may-

   (a)  authorize the registration by the Registrar, of a prospectus to which
        this section applies and where the Commission so authorizes, the
        Commission shall issue a certificate-

        (i)    certifying that the Commission has done so; and

        (ii)   specifying the documents which are required to be endorsed on
               or attached to the copy of the prospectus to be registered; or

   (b)  refuse to authorize such registration.

(6) The Commission shall not authorize the registration of a prospectus which
relates to an intended company.

(7) The Registrar-

   (a)  shall not register a prospectus under this section unless-

        (i)    it is dated and the copy thereof to be registered has been
               signed in the manner required by this section;

        (ii)   it is accompanied by a certificate issued under subsection (5);

        (iii)  it has endorsed thereon or attached thereto all the documents
               specified in the certificate issued under subsection (5); and

        (iv)   it conforms with such requirements as are prescribed by the
               Chief Executive in Council or specified by the Registrar under
               section 346 which are applicable to prospectuses to be
               registered under this Part; and (Amended 23 of 1999 s. 3)

   (b)  shall register a prospectus if subparagraphs (i), (ii), (iii) and (iv)
        of paragraph (a) are complied with in respect of that prospectus.

(8) If a prospectus is issued without having endorsed thereon or attached
thereto the required documents or without a copy thereof which has the
required documents endorsed or attached having been registered under this
section by the Registrar, the company, and every person who is knowingly a
party to the issue of the prospectus, shall be liable to a fine and, for
continued default, to a daily default fine from the date of the issue of the
prospectus until a copy thereof is so registered or until the required
documents are endorsed or attached, as the case may be.

(9) Any person aggrieved by the refusal to authorize the registration of a
prospectus under this section may appeal to the court and the court may either
dismiss the appeal or order that the registration of the prospectus be
authorized by the Commission under this section.

(10) A translation mentioned in subsection (4) shall be-

   (a)  certified by the person making the translation as a correct
        translation; and

   (b)  deemed to be certified in the prescribed manner if the person making
        the translation has been certified, by the appropriate person
        mentioned in subparagraph (i) or (ii), as a person believed by that
        appropriate person to be competent to translate it into the English or
        Chinese language, as the case may be, that is to say-

        (i)    if the translation be made outside Hong Kong- (A) a notary
               public in the place where the translation is made; (B) such
               other person as may be specified by the Commission; or (C) such
               other person belonging to a class of persons specified by the
               Commission, by notice published in the Gazette, for the
               purposes of this paragraph;

        (ii)   if the translation be made in Hong Kong- (A) a notary public in
               Hong Kong; (B) a solicitor of the High Court of Hong Kong; (C)
               such other person as may be specified by the Commission; or (D)
               such other person belonging to a class of persons specified by
               the Commission, by notice published in the Gazette, for the
               purposes of this paragraph. (Added 30 of 2004 s. 2)

(11) A notice published under subsection (10)(b)(i)(C) or (ii)(D) is not
subsidiary legislation. (Added 30 of 2004 s. 2) (Replaced 86 of 1992 s. 5)