Saturday, September 07, 2013

Hong Kong SFC Advises on Investment in Collective Investment Schemes

Responding to enquiries concerning the regulation of collective investment schemes, the Hong Kong Securities and Futures Commission outlined the relevant provisions in the Securities and Futures Ordinance (SFO) governing the offer and promotion of collective investment schemes, and reminded those intending to market a collective investment scheme that breaching the provisions may constitute a criminal offense.

Under the SFO, generally a collective investment scheme has four relevant elements. First, it must involve an arrangement in respect of property. Second, participants cannot have day-to-day control over the management of the property even if they have the right to be consulted or to give directions about the management of the property. Third, the property is managed as a whole by or on behalf of the person operating the arrangements, and/or the contributions of the participants and the profits or income from which payments are made to them are pooled. Fourth, the purpose of the arrangement is for participants to participate in or receive profits, income or other returns from the acquisition or management of the property.

A collective investment scheme may cover any property, including real estate, whether located in Hong Kong or overseas. It is an offense under the SFO to issue any marketing material which contains an offer to the Hong Kong public to acquire an interest or participate in a collective investment scheme unless it has been authorized by the SFC or an exemption applies. In addition, promoting a collective investment scheme may, in addition, constitute a business in a regulated activity which requires a license from the SFC, failing which may lead to an offense under the SFO.

Finally, and more generally, the Commission cautioned any person who wishes to offer or promote any investment arrangement to Hong Kong investors to be aware of the restrictions under the SFO, and seek professional advice if in doubt to ensure compliance with the law. At the same time, investors in doubt about the nature and regulatory status of any investment arrangement are also advised to seek professional advice prior to making an investment.