The Companies (Amendment) Ordinance 2023 (“Amendment Ordinance“) was gazetted on 27 January 2023 and will come into operation on 28 April 2023.

Background

The manner in which a Hong Kong incorporated company holds its general meeting is governed by the provisions of the Companies Ordinance (Cap. 622 of the Laws of Hong Kong) (“CO“) and the company’s own articles of association (“articles“).

Under the current provisions of the CO, a general meeting can be held at two or more places using technology that enables the members of the company who are not together at the same place to listen, speak and vote at the meeting, but there is no clear reference as to whether a company can hold fully virtual general meetings. In particular, because the current provisions of the CO refer to a place or places for holding general meetings, it seems to suggest that there must be a physical venue for general meetings.

In view of the advancement of technology in electronic communication, the Amendment Ordinance seeks to modernise the CO (and the model articles prescribed in Schedules 1 to 3 to the Companies (Model Articles) Notice (Cap. 622H of the Laws of Hong Kong)) to expressly cater for the scenario of companies holding fully virtual general meetings as well as hybrid general meetings.

Major elements of the Amendment Ordinance

Major elements of the Amendment Ordinance include:

1. introducing a new definition of “virtual meeting technology” which means a technology that allows a person to listen, speak and vote at a meeting without being physically present at the meeting;
2. providing that notice of a general meeting given to members or published on a website must specify, among other things, the physical venue of the meeting, or the virtual meeting technology to be used for holding the meeting, or both;
3. providing that notice of a general meeting may specify the virtual meeting technology to be used for holding the meeting unless the company’s articles expressly preclude the holding of a general meeting by using virtual meeting technology or require a general meeting to be held only at a physical venue;
4. setting out the mode of holding a general meeting;
5. clarifying that when a general meeting of a company is held at two or more physical venues, regardless of whether virtual meeting technology is also used for holding the meeting, the company must use any technology that allows the members of the company who are not together at the same physical venue to listen, speak and vote at the meeting; and
6. providing that a person who attends a general meeting by using the virtual meeting technology specified in the notice of the meeting is to be regarded as being present.

Other key points

Even if a company’s existing articles refer to a place or places for conducting a general meeting or require the notice of general meeting to specify the physical venue of the meeting, it is not necessary for the company to amend its articles in order to enjoy the flexibility of holding fully virtual general meetings or hybrid general meetings as introduced by the Amendment Ordinance, unless the company’s articles expressly preclude the holding of a general meeting by using virtual meeting technology, or require a general meeting to be held only at a physical venue.

Companies are advised to review their articles to see if any of the above express restrictions exist.

The Amendment Ordinance does not remove the option of holding physical general meetings.  Companies should choose the most appropriate mode of meeting for its members based on the circumstances of the company and its members.  The ultimately aim is to promote engagement with members and encourage their participation at meetings.

For more information, please refer to the Amendment Ordinance, and the “Guidance Note – Good Practice on Holding Virtual or Hybrid General Meetings” and list of frequently asked questions published by the Companies Registry.