[Amendment of access of company directors information in COMPANIES ORDINANCE 查閱公司董事《公司條例》修訂] Editorial Balance Between Privacy and Free Flow of Information

【明報專訊】WITH THE PASSAGE of the Companies Bill by the Legislative Council in July last year, the government is aiming at getting the subsidiary legislation passed by July this year. The enforcement of the new Companies Ordinance will mean that information about company directors can only be obtained by public officials, public institutions, liquidators, receivers, and trustees in bankruptcy for the performance of their duties, while the public and the media can obtain no more than their correspondence addresses (instead of residential addresses) and parts of their identity card numbers.

It was not until last week, when the government submitted the relevant documents to the Legislative Council, that the majority of the public learned about the amended details, and a huge outcry was raised. The media, academics, and the Hong Kong Journalists Association are vocal in their opposition to the revision of the ordinance, pointing out that it will restrict public access to information, and that looking into company filings has always been an important tool for investigative news reporting and can help ferret out possible conflicts of interest on the part of high-ranking officials and councillors. Representatives from trade unions and small and medium enterprises also point out that, to recover debts or collect unpaid wages, it is often necessary for creditors and employees to know the residential addresses of company directors. The government, however, asserts that the public had been consulted well before the revision.

It is true that the government did conduct a consultation exercise on the proposed revision from December 2009 to March 2010. However, the consultation process was somewhat questionable.

First, the government started its consultation in December 2009, and received 68 submissions from the public, none of which, however, was from the media. According to Hong Kong Journalists Association chairwoman Mak Yin-ting, the government never approached the association for comments. The media’s concerns about the amendment have clearly gone unheeded. Moreover, there has been no in-depth public discussion of the matter.

Second, the government declares that most of the submissions (46 altogether) received are in favour of not disclosing company directors’ residential addresses. However, these submissions are mostly from listed companies (14), chambers of commerce (4), and private persons (16). None of them represent the major chambers of small and medium business, and the submissions from three important professional bodies (the Association of Banks, the Bar Association, and the Institute of Certified Public Accountants) are unequivocally against the revision. The public can hardly agree with the government’s decision to turn a deaf ear to the informed opinions of these professional bodies.

Third, in defence of its position, the government repeatedly says that “reference has been made to foreign experience". However, it is not proper to draw on foreign experience when conditions in Hong Kong are different from those in foreign countries.

Finally, in its December 2009 consultation paper, the government indicated clearly that it was inclined to maintain the current system. However, in its August 2010 consultation conclusions, the government made a complete volte-face, which the public cannot but find suspicious.

Restricting access to information about company directors will not only curtail press freedom, but will also have far-reaching effects on Hong Kong’s business environment and its position as a financial centre with respect to the prevention of money laundering. The government should therefore take the initiative and propose putting off the implementation of the new ordinance. Hong Kong can learn from the established practices in foreign countries, such as Australia, where company directors’ residential addresses remain open to public scrutiny unless a company is able to prove that its information has been abused or its directors have been harassed. This would help safeguard public interests.

明報社評2013.01.14﹕收緊查冊損害公眾利益 私隱與資訊自由須平衡

《公司條例》的主體法例去年7月已獲立法會通過,政府目標今年7月前完成立法,當中牽涉董事資料的條文訂明,日後只有公職人員及公共機構、清盤人、 接管人及破產案受託人等,可為履行職能索取所需資料,公眾及傳媒只可取得董事的「通訊地址」(而非住址)以及部分身分證號碼數字。

政府上周向立法會提交文件,大多數市民此時才對修訂的細節有所掌握,嘩然之聲四起。傳媒學者及香港記者協會紛紛反對此項修改,認為條例削弱市民知情 權,並指查冊一向是記者偵查報道的重要工具,有助揭露高官或議員的利益衝突;工會及中小企代表亦表明,債主及僱員往往要靠董事住址才能有效追討欠債欠薪。 政府則辯稱早已諮詢公眾。

政府無疑的確曾在2009年12月至2010年3月就此修訂諮詢公眾,然而整個諮詢過程也並非全無問題。

第一,政府在2009年12月諮詢公眾,其後亦收回68份意見書,但當中並不包括新聞界,記協主席麥燕庭更表明,政府根本沒有聯絡該會提交意見。由此可見,政府根本未有全面考慮新聞界對修例的憂慮,公眾亦未有深入討論。

第二,政府聲言大多數的意見書(46份)都支持不披露董事住址,但支持的多屬上市公司(14份)、商會(4份)及個人意見(16份),當中不單未見 主要中小企商會代表,三大重量級專業團體(包括銀行公會、大律師公會及會計師公會)更表明反對。如此重量級的反對意見,政府充耳不聞,實在難以說服公眾。

第三,政府多次以「參考外國例子」作擋箭牌,但香港與外國情况不同,貿然引入外國經驗,實在是矯枉過正。

最後,在2009年12月的諮詢文件中,政府表明「傾向於保留現有制度」,但在2010年8月發表諮詢總結時,態度卻180度轉變,實在叫公眾生疑。

收緊查冊不單影響新聞自由,對香港的營商環境及金融中心地位(防止洗黑錢)均影響深遠,政府應主動提出暫緩實施法例,並認真參考外國做法(如澳洲),除非公司證實資料遭濫用或董事遭滋擾,否則董事住址應繼續公開,以保障公眾利益。

■Glossary

subsidiary﹕serving to aid or supplement; auxiliary; subordinate in function

ferret﹕discover information or to find somebody/something by searching thoroughly, asking a lot of questions, etc

volte-face﹕a complete change of opinion or plan

launder﹕move money that has been obtained illegally into foreign bank accounts or legal businesses so that it is difficult for people to know where the money came from

■聲檔 http://english.mingpao.com/critic.htm

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