The new circular has the potential to drastically increase the cost of doing business in Hong Kong, and will make it much more difficult for companies to store data off shore. The new rules will also create an additional layer of legal risk for companies that are not in compliance with the new circular. In addition to the potential for fines, the new rules could expose firms to lawsuits by customers or shareholders if the data is used in an unintended way.
Whether the HKFC is able to effectively enforce these changes remains to be seen. But the regulator seems to be taking a more aggressive stance against market misconduct following a series of wild price swings in the stock market. The SFC has issued search warrants to firms 14 times since April, according to law firm Freshfields. The SFC has not been able to identify the individuals involved in these cases, as the searches are done without public notice or formal notification to the firm being investigated.
While the SFC has been taking a more proactive approach to market misconduct, it still struggles with enforcement and compliance. For example, the SFC has used its power to search and seize computers 17 times in the past two years, but has only been successful in one case – which resulted in a conviction of a broker.
The SFC has also been reluctant to sanction a number of senior managers and directors for their actions, as it has struggled with finding a suitable alternative to criminal prosecution. For example, it has been reluctant to sanction the chief executive of a bank for its role in a large trading loss and a failure to disclose it to shareholders. The SFC has attempted to overcome this hurdle by creating a panel of external experts to help it determine when to use its powers in the future.
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