Resignation of directors
Acts_done_by_a person_in_dual_capacity
Minimum number of directors
| Public Company | Min. No. of director | |
| 1. | Public company | 2 |
| 2. | Company limited by Guarantee | 2 |
| 3. | Private Company | 1 |
Restriction on body corporate acting as a director
Section 456 provides that the following types of companies must not appoint a corporation (body corporate) as a director.
|
1. |
A public company |
|
2. |
A company limited by guarantee |
|
3. |
A private company that is a member of a group of companies, of which a listed company is a member |
Corporate director
Section 457 provides that
(1) a private company other than one that is a member of a group of companies, of which a listed company is a member, can appoint a corporate director.
(2) the company must have a least one director who is a natural person.
[Comment: it is noted that the C. O. distinguishes between the private company that belongs to a group of companies having a listed company as a member and the private company that does not.]
Direction requiring a company to appoint directors
Section 458 provides that the Companies Registrar may issue a direction to require the company to appoint a director or directors within a specified period if it appears to him that the provision for minimum number of directors has been contravened. The specified period must not be less than one month or more than 3 months after the date on the direction is given.
Non-compliance
In the case of non-compliance with section 458, the company and every responsible person of the company commit an offence, and each is liable to a fine at level 6 (HK$100,000) and, in the case of continuing offence, to a further fine of HK2,000 for each day during which the office continues.
Reserve director
S455 provides that if a private company has only one member and that member is the sole director of the company, the company may by a resolution passed at a general meeting, nominate a person as a reserve director to act in place of the sole director in the event of the sole director's death.
Appointment, Resignation and Change in Particulars of directors
The Company has a duty to notify the Registrar of the Companies Registry in respect of the following cases:
| Director | Secretary | Type of change | Report time | Specified form |
| S645(1);S645(4) | S652(1);S652(2) | Appointment / cessation | within 15 days | ND2A |
| S645(4) | S652(2) | Change in particulars | Ditto | ND2B |
| S464(3) | S477(3) | Resignation | Ditto | ND4 |
| Reserve director | Type of change | Report time | Specified form | |
| S645(2),(3) | N/A | Nomination / cessation | within 15 days | ND5 |
| S645(2),(3) | N/A | Change in particulars | Ditto | ND7 |
| S464(3) | N/A | Resignation | Ditto | ND8 |
Resignation of director and secretary
Despite section 645(4), if a director resigning has reasonable grounds for believing that the company will not deliver the notice, the director resigning must deliver to the Registrar for registration a notice of the resignation.
A director here includes a reserve director.
The same reason applies in the case of resignation by the company secretary.
Non-compliance
i) Director and Reserve director
If a company contravenes section 645(1), 645(2), 645(3) or 645(4), the company, and every responsible person of the company, commit an offence, and each is liable to a fine at level 4, and in the case of continuing offence, to a further fine of $700 for each day during which the offence continues.
ii) Secretary
If a company contravenes section 652(1) or 652(2), the company and every responsible person commit an offence, and each is liable to a fine at level 4, and in the case of a continuing offence, to a further fine at $700 for each day during which the offence continues.
iii) Level 4
As per Criminal Procedure Ordinance, a fine at level 4 is HK$25,000.
Section 462 provides that a company may by an ordinary resolution passed at a general meeting remove a director before the end of the director's term of office, despite anything in its article or in any agreement between it and the director.
The preceding paragraph does not, if the company is a private company, authorize the removal of a director who has held office for life since 31 August 1984.
Special notice is required of a resolution to remove a director; or to appoint somebody in place of a director so removed at the meeting at which the director is removed.
Section 578 provides that if, by any provision of the Companies Ordinance, special notice is required to be given of a resolution, the resolution is not effective unless notice of the intention to move it has been given to the company at least 28 days before the meeting at which it is moved.
Circumstances in which a director must NOT be the secretary of the company
As per section 475(1), a director of the company may also be a secretary of the company, except that
- the director of a private company having only one director, must not also be the company secretary of that company; [S475(2)]
- No private company having a sole director may have, as the company secretary of the company, a body corporate the sole director of which is the sole director of the private company. [s475(3)]
Avoidance of acts done by person in dual capacity as director and company secretary
S479(1) provides that a provision requiring or authorizing a thing to be done by or to, a director and a company secretary of a company is not satisfied by its being done by or to the same person who is acting
(a) both as director and company secretary; or
(b) both as director and in place of the company secretary.
Comments: S475 applies to a private company having only one director, while S479 applies to the company having more than one director.
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