This alert was written by Dr. Sheldon Tse and Jeff Wong.
The Securities and Futures Commission (the "SFC") and The Stock Exchange of Hong Kong Limited (the "HKEX") issued a joint statement (the "Joint Statement") on 4 February 2020 to provide guidance to listed companies and their auditors in relation to the disclosure of financial information in results announcements in view of travel and other restrictions that have arisen due to the coronavirus outbreak. The Joint Statement is available here.
Deadline for Results Announcements under the Listing Rules
Rule 13.49 (1) of the Rules Governing the Listing of Securities on the Stock Exchange (the "Main Board Listing Rules") requires a listed company to publish its preliminary results in respect of each financial year not later than three months after the end of the financial year. Rule 13.49 (2) of the Main Board Listing Rules further stipulates that the preliminary results announcement shall be based on the listed company's financial statements for the financial year which shall have been agreed with its auditors.
Rule 18.49 of the Rules Governing the Listing of Securities on GEM of the Stock Exchange (the "GEM Listing Rules") requires GEM listed companies to fulfil similar obligations of Rules 13.49 (1) and 13.49 (2) of the Main Board Listing Rules. Rules 18.03 and 18.48A of the GEM Listing Rules further require a listed company to publish its audited financial statements within three months after the financial year end in addition to the publication of its preliminary results.
No blanket extension or waiver on the deadline or reporting requirements of the results announcement
As stated in the Joint Statement, travel and other restrictions arising from coronavirus outbreak may disrupt the reporting or audit processes of listed companies. If a listed company believes there is a real possibility that, as a result of the coronavirus outbreak, it will be unable to publish a preliminary results announcement (or, as the case may be, issue its audited financial statements) in accordance with the relevant requirements under the Main Board Listing Rules or the GEM Listing Rules, it should contact the HKEX as early as possible to discuss the situation.
In other words, no blanket extension or waiver on the deadline or reporting requirements of the results announcement is given pursuant to the Joint Statement. Listed companies should publish the results announcements in full compliance with the relevant deadline or reporting requirements under the Main Board Listing Rules and GEM Listing Rules unless prior consensus has been reached with the HKEX and the SFC (as the case may be).
Since the impact of the coronavirus outbreak on a listed company and its auditors' work will vary according to its individual circumstances, the listed company affected by the coronavirus outbreak should provide the HKEX with, to the extent possible:
- a description of the travel and other restrictions which have affected its auditing or reporting process;
- where available, an account of why these restrictions have meant that it is unable to comply with the relevant reporting requirements set out in the Main Board Listing Rules or the GEM Listing Rules;
- the financial information that it is nevertheless still able to report on; and
- an explanation on whether the accuracy, completeness and presentation of the financial information available is believed to have been adversely affected and, if so, to what extent.
Steps to be taken by listed companies impacted by the coronavirus outbreak
As a general approach, a listed company impacted by the coronavirus outbreak should discuss its audit plans and timetables with its auditors and closely monitor any new developments. Based on the communication with its auditors, one of the following outcomes will apply to the listed company:
Scenario ONE – publishing results announcement without obtaining agreement from auditors
Rule 13.49 (2) of the Main Board Listing Rules stipulates that the preliminary results announcement of a listed company shall be based on the listed companies' financial statements for the financial year which shall have been agreed with its auditors. Rule 18.49 of the GEM Listing Rules requires that a listed company must publish a preliminary announcement of the results for the financial year, which has been agreed with its auditors.
Where a listed company is unable to obtain agreement from its auditors but is otherwise in all respects able to publish its preliminary results announcement in full compliance with the other reporting requirements set out in the Main Board Listing Rules or the GEM Listing Rules, it should publish such preliminary results announcement (without the agreement with its auditors) on or before the deadline. The listed company should include appropriate caution statements in its results announcements and follow the relevant requirements under Main Board Listing Rules 13.49 (3) and 13.49 (4). GEM listed companies that are unable to publish audited financial statements on or before the deadline should also follow Main Board Listing Rules 13.49(3) and 13.49 (4). In such cases, the HKEX will normally allow trading in the securities of the listed company to continue.
A listed company is reminded to inform the responsible contact persons in the Listing Department of the HKEX about the situation before publishing its results announcement (without the agreement with its auditors). In addition, the listed company should discuss and agree on a timetable for the full compliance of Rule 13.49 (2) of the Main Board Listing Rules or Rule 18.49 of the GEM Listing Rules on publishing financial results (with the agreement with its auditors).
Scenario TWO – all other cases where a listed issuer is unable to fully comply with reporting requirements
In all other cases, the listed company should consult with the HKEX as soon as possible on the financial information that it is able to report on. The HKEX, in consultation with the SFC, will assess whether publication of such information will be sufficient to maintain an orderly, informed and fair market so that trading in the securities of the listed company can continue. The listed company should therefore be reasonably satisfied that such information is accurate and complete in all material respects. For example, where there are uncertainties relating to the valuation of assets or liabilities, the listed company should describe what those uncertainties are and state how they may affect the valuation of such items in order to allow investors to evaluate their significance. In making their assessment, the HKEX and the SFC will consider the views of the listed company's audit committee on the unaudited financial information available to the listed company.
Reminder on the disclosure of inside information
The Securities and Futures Ordinance (Cap. 571 of the Laws of Hong Kong*) provides that, subject to certain specified exceptions, a listed corporation must, as soon as reasonably practicable after any inside information has come to its knowledge, disclose the information to the public. If a listed company's business operations or reporting controls, systems, processes or procedures are materially disrupted by the coronavirus outbreak and/or the travel or other restrictions, its management should be vigilant as to whether any inside information has arisen and, if so, issue a separate announcement as soon as reasonably practicable, independent of any applicable requirements under the Main Board Listing Rules or the GEM Listing Rules.
This publication is intended to highlight potential issues and provide general information and should not be construed as legal advice. If you have any questions, please contact a member of King & Wood Mallesons' Corporate & Securities practice.
*Any reference to "Hong Kong" or "Hong Kong SAR" shall be construed as a reference to "Hong Kong Special Administrative Region of the People's Republic of China".
