Notice must be sent to all the members, who are entitled to attend general meeting. Notice should have date, time, place and agenda of meeting mentioned properly to let the members decide whether to attend the meeting or not, if to attend the meeting, how should voting be done.
Delivering the Notice to the Recipients
There is the general requirement of delivering the notice for Annual General Meeting 21 days before the conduction of general meeting. While for any other meeting than Annual General Meeting there is the requirement to send notice 14 day prior to general meeting. For the unlimited company, there is the general requirement of issuance of notice 7 days prior to general meeting. It is noted that these are just the standard time periods as the process of Hong Kong company establishment is going on, company’s article could extend this as it deems appropriate.
Where the notice is served for a shorter period, contradictory to the requirement mentioned in company’ article or common law, then the meeting as the result of this notice would be rendered invalid. However, it can be made valid if majority of members having major voting rights endorse such meeting. It must be remembered that this leverage is for general meetings. For the Annual General Meeting, endorsement of members holding 95% of voting rights would be needed to validate proceedings of Annual General Meeting on such a short notice.
There is the matter of consideration in computation of period of notice as the date on which notice is issued and the date on which general meeting is to be held, would be exclusive from this counting of days.
Mode of Communication for Notice
Section 114(2) (repealed) of Companies Ordinance emphasised on delivery of notice to the entitled members to attend general meeting, in writing. The Reg.32 of Table A of predecessor Companies Ordinance emphasised on its delivery via post or in person. But, Deputy Judge Gill in Re Grandtag Financial Consultancy’s case held that: permissible method of communication in Reg.32 of Table A is appropriate but in today’s modern world, service of notice via e-mail would not be inappropriate and be valid.
Section 168BAG of predecessor Companies Ordinance which aims Hong Kong company establishment, permits service of notice through electronic mean only if the recipient has showed consent to receive it electronically. This provision has now been discussed in Pt.18 of Cap.622. Section 572 of Cap.622 allows sending of notice for general meeting either electronically or in hard form or publishing notice on company’s website. Section 831 of Cap.622 allowed the delivery of notice electronically only in the condition where recipient had showed to consent to receive it electronically. As far as matter of publishing notice on company’s website is concerned, Section 573 validates it only if:
As the notice will be published on company’s website, it should remain published on website till the conclusion of general meeting.
Person Eligible to Receive Notice
Every member of the company is entitled to receive notice for the general meeting, unless company’s articles specifies certain people to attend the meeting. In the case of joint shareholder, the name appearing first in company’s register would be entitled to attend general meeting after Hong Kong business formation and thus issued a notice.
Unless company’s articles restrict, the person not holding voting right would still be eligible for attending general meeting, thus notice must be issue to him or her. For the listed companies in Stock Exchange, this rule cannot be even altered by company’s article. In the case of death of any member or shareholder of the company, a person entitled to shares of deceased would be entitled to attend the meeting and notice be issue to him or her, provided company was notified about member’s death.
Like company’s members, auditors should also be issued the notice of general meeting and thus stands eligible to attend the proceedings of general meeting. If the company contravenes this requirement or cease their right to attend general meeting, then this would be an act of offence.
Special Notice to put forward a resolution in General Meeting
There are certain matters for which unlike an ordinary resolution, special notice to put forward a special resolution in general meeting’s proceedings should be issued. Matters like removal of director, appointment and removal of auditors are the subject of such notices. Special notice is nothing but an express of intention and must be issued and all entitled members should be notified regarding such notices 28 days before the general meeting. If communication of this notice to every member is not possible then company should advertise it in newspapers or company’s website or any other method as discussed in company’s articles, no less than 14 days before meeting.
Content of the Notice
Notice for general meeting should clearly mention the date, time and venue of the meeting as well as the agenda of the meeting. It is basically the director’s prerogative to decide time, place and date of meeting and thus they must take this decision in the best interest of company. However, where there is the probability that meeting’s credentials are made just to deprive any member from his or her entitles powers and rights regarding decision making in the company then court can intervene and interrupt directors to continue proceeding of the meeting. Meeting can also get invalid if it was adjourned just few hours before the conduction of general meeting.
Meeting will be considered invalid if it was adjourned or cancelled just on the grounds of insufficiency of the venue to accommodate all aspiring attendants of the meeting. Section 584 of Cap.622 related to the Hong Kong business formation, provides solution for this problem and suggests the conduction of general meeting at two or more venues simultaneously, connected with each other meeting through any audio-visual arrangement so that all members could communicate with each other and make decisions as if they are holding a general meeting at a common venue.
It is very important to mention the subject or agenda of the meeting in call notice so that all members could know about the agenda and could decide whether their attendance would be worthwhile or not. It must also be noted that any other transaction or matter can not undergo out of the scope of the meeting. For example, if the agenda of the meeting is the removal of one director who has committed an offence then only removal of director be take place, any act to vacate whole of the board of directors would be invalid and will be held out of the scope of the meeting. If the notice does not specifies the particular issue to be discussed or to be transacted then proceedings of the meetings would be called invalid. As in the Kaye’s case, a notice was issued with the agenda to discuss the agreement of selling of company’s undertaking but on the grounds that notice failed to inform members about the payment to directors for the compensation by the buyers and hence the meeting was held invalid.
Under the Model Articles, any accidental omission or misunderstanding in sending notices to the certain member would not invalidate the proceedings of the meetings. In Re West Canadian Collieries Ltd’s case, it was reported that certain members were not issued the notice for the Annual General Meeting court upon conceiving the matter to be of accidental in nature, court validated the proceedings of the Annual General Meeting.
Legal commentators define the word “accident” as the matter which happened un-deliberately and for which there was no intention of occurrence.
Proceedings of the General Meeting
Here we shall discuss the general rules and requirements for the validity of the proceedings of general meeting after opening a business in Hong Kong.
Rules on Quorum
Quorum is basically the minimum requirement for the members to participate in meeting so as to validate the proceedings of general meeting. Company’s article can provide for the requirement of quorum however standard shows it to be two members for the general meeting. Where the company is a single person company, the sole members itself is a quorum of the company. If that sole members is a body corporate then the members entitled by its corporate representatives would constitute a quorum.
Though Cap.622 does not provides for the way where meeting could be called inquorate but, Model Articles entertained this issue. As per the Model Articles, if the entitle members do not come to the meeting within half of hour of its specified time then the meeting would be adjourned till the same day of next year or any other time, directors deem appropriate. For the meeting which was called on the requisition then in such scenario, meeting would dissolve. For the adjourned meeting, if on its re-conduction entitled members do not even come then the members present in the meeting would constitute the quorum of the meeting.
Quorum will be lost if one or more members leaves the proceedings of the company before its conclusion. The question can be taken on the validity of the meeting which were proceeded and concluded with the lost quorum. Hence, any decision of such meeting cannot be re-approved with another meeting having the required quorum, where it is necessary to ratify those decisions, fresh meeting with the satisfied quorum be called and decision should be taken as it would have been the general meeting.
Chairperson of the General Meeting
A person who would supervise and oversee the proceedings of the meeting would be called a chairperson. Duties of the chairperson includes:
Apart from this, procedural role of the chairperson includes:
As per the statutory rule, any member of the company is eligible to be elected as the chairperson. However, if the chairperson of board of directors consents and present then he or she must chair the general meeting. But, where chairperson of the board of directors didn’t showed consent nor he or she is present within the 15 minutes of general meetings proceedings then first directors must elect one of amongst them to be the chairperson of the general meeting but there none of the director is willing to chair the meeting then general meeting has the right and power to elect any of its member to chair the general meeting.
Voting Rights in General Meeting
Every member has the right to vote for any resolution, subjected to the provision in company’s article, after opening a business in Hong Kong. However, holder or certain share classes may have limited or no voting right. Usually vote is polled by the “show of hands” unless polling is demanded and thus each member reserves only one vote. For the case of joint shareholders, the senior member is entitled to vote in the general meeting. For the companies having share capital then the person would hold as much votes as the shares possessed by him or her, otherwise each member will be considered to have only one vote.
For the demand of polls, demand will be acceptable only in the case where there is probability that results through show of hands would be different than that of by polling. Any such demand should be made immediately after the announcement of result of voting by show of hands so that proceeding may not get diverted towards any other matter of consideration.
As soon as the chairperson declares the result of the voting, voting process would be considered concluded and no demands on the part of members would be entertained such as voting by mistake etc.