Hong Kong Ordinances

COMPANIES ORDINANCE - SECT 43

Prohibition of allotment in certain cases unless statement in lieu of prospectus delivered to Registrar

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

“untrue statement” (不真實陳述)

(1) A company having a share capital which does not issue a prospectus on its
formation, or which has issued such a prospectus but has not proceeded to
allot any of the shares offered to the public for subscription, shall not
allot any of its shares or debentures unless at least 3 days before the first
allotment of either shares or debentures there has been delivered to the
Registrar for registration a statement in lieu of prospectus signed by every
person who is named therein as a director or a proposed director of the
company or by his agent authorized in writing, in the form and containing the
particulars set out in Part I of the Fourth Schedule and, in the cases
mentioned in Part II of that Schedule, setting out the reports specified
therein, and the said Parts I and II shall have effect subject to the
provisions contained in Part III of that Schedule.

(2) Every statement in lieu of prospectus delivered under subsection (1)
shall, where the persons making any such report as aforesaid have made therein
or have, without giving the reasons, indicated therein any such adjustments as
are mentioned in paragraph 5 of the said Fourth Schedule, have endorsed
thereon or attached thereto a written statement signed by those person setting
out the adjustments and giving the reasons therefor.

(3) This section shall not apply to a private company or any allotment of
shares or debentures the subject of an offer specified in Part 1 of the
Seventeenth Schedule as read with the other Parts of that Schedule. (Amended
30 of 2004 s. 2)

(4) If a company acts in contravention of subsection (1) or (2), the company
and every director of the company who knowingly and wilfully authorizes or
permits the contravention shall be liable to a fine. (Amended 7 of 1990 s. 2)

(5) Where a statement in lieu of prospectus delivered to the Registrar under
subsection (1) includes any untrue statement, any person who authorized the
delivery of the statement in lieu of prospectus for registration shall be
liable to imprisonment and a fine, unless he proves either that the untrue
statement was immaterial or that he had reasonable ground to believe and did
up to the time of the delivery for registration of the statement in lieu of
prospectus believe that the untrue statement was true. (Amended 7 of 1990 s.
2)

(6) For the purposes of this section-

   (a)  a statement included in a statement in lieu of prospectus shall be
        deemed to be untrue if it is misleading in the form and context in
        which it is included; and

   (b)  a statement shall be deemed to be included in a statement in lieu of
        prospectus if it is contained therein or in any report or memorandum
        appearing on the face thereof or by reference incorporated therein.

(6A) For the purposes of subsection (5), “untrue statement”
(不真實陳述), in relation to a statement in lieu of prospectus, includes
a material omission from the statement. (Added 30 of 2004 s. 2)

(7) The Chief Executive in Council may by regulation amend the Fourth
Schedule. (Amended 23 of 1999 s. 3) (Replaced 78 of 1972 s. 12) [cf. 1948 c.
38 s. 48 U.K.]