On May 25th, the Hong Kong Monetary Authority (HKMA) issued updated FAQs about customer due diligence. It’s not very long, but too long for one poist – so I’ll make a number of smaller posts.
Today, Q1 through Q4:
Q1: The Guideline on Anti-Money Laundering and Counter-Terrorist Financing (“AML Guideline”) requires Authorized Institutions (“AIs”) to obtain information on the business address of a corporate customer if its business address is different from the registered office address. What does business address generally refer to? Is there any requirement to have a Hong Kong business address? Does the HKMA mandate any specific type of address proof for verifying business address (e.g. a stamped tenancy agreement)?
A1: Business address means the location where a corporation operates or the principal place of a corporation’s activities, which can be in Hong Kong or overseas. Corporations, depending on their business nature, may operate in various kinds of location. For example, rather than occupying a physical office in a commercial building, start-ups and small and medium-sized enterprises (“SMEs”) increasingly use “hot desks” at service centres as their offices or operate from residential premises. There may also be occasions where it is not possible to produce a business address, for perfectly legitimate reasons, such as a company set up primarily for holding shares or assets without substantive business.
The HKMA requirements do not mandate a business address in Hong Kong. Business address is one aspect of customer due diligence (“CDD”) information of a legal person that assists AIs in constructing the risk profile of a customer. In addition to collecting the information, AIs should also seek to understand the rationale why a particular type of business address is provided or considered not applicable, taking into account the customer’s business model or mode of operation.
It is also important to note that the AML Guideline does not specify particular methods for verifying a customer’s business address. AIs are expected to take reasonable measures to verify the business address of a customer and in doing so may make reference to some of the generic examples in the guidance provided in paragraph 4.8.10 of the AML Guideline which provides risk-based, non-exhaustive options in relation to verification of residential address of an individual customer, or adopt other possible arrangements depending on the circumstances of each case. AIs should provide options to customers, and not apply narrow requirements which will act as a potential barrier to account opening, such as accepting only one form of address proof (e.g. a stamped tenancy agreement) to verify the business address.
Q2a: Why are some corporate customers unable to provide a Hong Kong business registration certificate?
A2a: In the Hong Kong context, business registration refers to a business or corporation registered under the Business Registration Ordinance, Cap. 310. Business registration certificates contain useful CDD information, such as nature of business, address of the business or its branch, etc., and can help ascertain the existence of the business or corporation, and provide an indication that they may be subject to local tax.
However, AIs should be aware that a business registration certificate may not be applicable to every customer and some customers may therefore be unable to produce one. For example, since the Inland Revenue Department (“IRD”) will not accept any application for registration of businesses which have yet to commence operation, start-ups may not possess a business registration certificate at the time of account application. Moreover, some overseas corporations may not be required to register under the Business Registration Ordinance. AIs may make reference to IRD’s website for more information relating to business registration in Hong Kong1.
Q2b: Do all corporate customers need to provide a business registration certificate for the purpose of verifying their identities?
A2b: Paragraph 4.9.8 of the AML Guideline indicates that a business registration certificate may not be applicable to every customer. For instance, for a Hong Kong incorporated company, AIs can generally rely on its certificate of incorporation and company record filed at the Hong Kong Company Registry2 to verify the identity of the customer without the need to obtain its business registration (e.g. business registration certificate). However, business registration is usually regarded as the primary document to verify the identity of a corporate customer that is not required to register with the Company Registry or similar authorities, such as a sole proprietorship, partnership and unincorporated bodies etc..
Q3: Are there any specific CDD requirements for start-ups and SMEs?
A3: Similar to AML requirements in other jurisdictions, the HKMA’s requirements are generic to all corporates and comparatively high level in order to provide flexibility to AIs to apply them to different types of customers. There are no specific or special requirements for, or mention of, start-ups or SMEs. However, AIs should not adopt a one-size-fit-all approach in the application of CDD requirements. AIs should ensure that design and implementation of their CDD requirements reflect both the operation and profile of these companies, the risk level as assessed by the AI concerned and any other relevant considerations.
Q4: Do AIs need to establish source of wealth for every customer?
A4: No. The requirement to collect source of wealth information ordinarily applies to higher risk situations and therefore the HKMA does not require AIs to establish source of wealth for each and every customer.
For most customers (i.e. non-high risk customers), certain information obtained as to understand the purpose and intended nature of the business relationship (unless it is obvious), e.g. occupation or employment of individual customers, or business nature of corporate customers, etc., should in general be sufficient for AIs to have a basic understanding of the customer’s profile.
Even if a customer is regarded as high risk and certain source of wealth information may be required or in practice collected, there is no expectation to apply the same source of wealth procedures to all customers in the same manner, or collect evidence dating back decades when the risk does not justify doing so, as it is often impractical. The HKMA has conducted training and issued guidance in this area in January 2016, which may be referred to understand our expectations3.