Here is an outline of important recent legal, tax and regulatory developments affecting wealth managers conducting business with or in Hong Kong.
Here are further guides to legal, regulatory and tax developments across Asia as they affect wealth managers, private client lawyers and their clients. The overviews come from Baker McKenzie. This specific item is written by associates Lisa Ma and Wenwen Chai. The editors are grateful to the authors for sharing this content. The usual editorial disclaimers apply. We welcome feedback and commentary. Email email@example.com and firstname.lastname@example.org. See the previous overviews on Singapore and Malaysia here.
Stamp duty updates
Transfers of non-residential property
In 2013, the Hong Kong Government introduced the double ad valorem stamp duty (DSD) on transfers of non-residential property in order to maintain property market stability against the backdrop of an overheating property market.
In November 2020, the Hong Kong Chief Executive announced in her policy address the abolition of the DSD on transfers of non-residential property with effect from 26 November 2020, in order to facilitate enterprises to cash out by disposing of non-residential properties to address liquidity needs arising from the economic downturn during the COVID-19 pandemic. The relevant legislation was gazetted on 19 March 2021. This means that the transfer of non-residential property is now subject to ad valorem stamp duty at the single duty rates (not exceeding 4.25 per cent) which applied before 2013.
Transfers of Hong Kong shares
On the other hand, the Government recently announced that, for the transfer of Hong Kong stock, the rate of ad valorem stamp duty payable by buyers and sellers will be increased from 0.1 per cent to 0.13 per cent (i.e., 0.26 per cent in total per transaction). The relevant legislation was passed in March 2021, and the new rate will take effect from 1 August 2021.
Wealth management professionals may wish to consider whether potential stamp duty exemptions or reliefs could be available during the course of any transaction planning.
Consultation paper on enhancing regulation and
supervision of trust business in Hong Kong
In July 2020, the Hong Kong Monetary Authority (HKMA) launched a consultation paper foreshadowing a Code of Practice for Trust Business. The code will contain general principles and practical standards to govern the conduct of authorised institutions (AIs, being principally banks) and their subsidiaries that conduct trust business in Hong Kong.
The consultation concluded in October 2020 but the code is yet to be promulgated. We set out below some observations on the draft code which wealth management industry participants may wish to consider.
(a) Application - The draft code proposed that it will apply to all AIs that conduct trust business in Hong Kong, either themselves or through their subsidiaries. Locally incorporated AIs should ensure that their trust company subsidiaries comply with the code. Other entities that conduct trust business in Hong Kong are merely encouraged to adopt the code. (The HKMA has no legal authority to regulate non-AIs.) Trustee companies that voluntarily seek to comply with the code will be named in a list published by the HKMA. Questions arise as to how the HKMA will review the list from time to time to ensure that the "volunteers" (who are not subject to the HKMA's supervision given they are not AIs) comply with the code; and whether (and if so, to what extent) these volunteers may later be subjected to other supervisory regimes as suggested by the HKMA in the consultation paper, including but not limited to off-site surveillance and on-site reviews by the HKMA.
(b) Definition of "trust business" - The definitions of "trustee" and "trust business" under the draft code are very broad and are not confined to acting as "trustee" in the narrow and usual sense of the word. The term "trust business" covers the provision of management of assets held on trust, administration services for a trust, etc. If these definitions remain widely drafted in the final code, potentially some other industry players may be subject to additional unintended regulatory regimes, e.g., investment managers who are licensed or registered to conduct regulated activities under the Securities and Futures Ordinance may be subject to regulatory requirements imposed by both the Securities and Futures Commission as well as the HKMA.
(c) Definition of "customer" - In the draft code, a "customer" is defined to mean the settlor and beneficiaries of a trust. However, the term "customer" is used in different parts of the code in different contexts. This gives rise to potential contradictions with general principles of trust law, e.g., the draft code provides that a trustee should treat the interests of customers as paramount but, under trust law principles, a trustee should treat the interests of the beneficiaries as paramount. This creates a conceptual difficulty, especially if the settlor is not a beneficiary under the trust. It is unfortunate that the regulation of the trustee industry is being placed in the hands of an authority that is not experienced in dealing with family trusts. It remains to be seen if the language of various parts of the code will be tightened in its final version.
We expect that the HKMA will review submissions from different
stakeholders and consider these issues further before the final
code is released. Meanwhile, wealth management industry
participants (in particular, AIs and their subsidiaries) should
undertake internal assessments to determine the potential
application of the code to them and its possible effects.