On 3rd November 2020, Hong Kong’s Financial Services and Treasury Bureau (“FSTB”) issued a Public Consultation on Legislative Proposals to Enhance Anti-Money Laundering and Counter-Terrorist Financing Regulation in Hong Kong (“Legislative Proposals”). Specifically one of the proposals concerns cryptocurrency exchanges referred to in the Consultation Paper as virtual asset services providers (“VASPs”)
These regulations are not yet enacted. The FSTB says it welcomes written comments from the public on the Legislative Proposals on or before 31st January 2021.
Current state of regulation of VASPs and Virtual Assets (“VAs”) in Hong Kong
Current regulatory requirements for VASPs and VAs in Hong Kong
The FTSB notes that VAs are not considered as legal tender and are not generally accepted as a means of payment in Hong Kong. However, they are aware that there are some VA trading activities operating locally. In light of this, Hong Kong’s Securities and Futures Commission (“SFC”) issued a position paper in November 2019 (“SFC Position Paper”). The SFC Position Paper outlined some regulatory standards similar to those applicable to licensed securities brokers and automated trading venues, for licensing of VA trading platforms. Notably, this was only an opt-in and voluntary regime and ONLY applied to those platforms which enabled clients to trade VAs with securities feature. Those platforms which solely traded non-securities VAs are not covered.
Hong Kong as a member jurisdiction of the Financial Action Task Force (“FATF”)
The FATF comprises of 39 major worldwide economies and oversees the implementation of the FATF Standards, which are comprised of 40 Recommendations and 11 Immediate Outcomes (“Standards”). Member jurisdictions do mutual evaluations to see if they comply with these Standards which are updated from time to time. One of the more recent additions to the Standards was in February 2019, where jurisdictions were required to subject VASPs to the same range of anti-money laundering (“AML”)/counter-terrorist financing (“CTF”) obligations applicable to financial institutions and designated non-financial businesses and professions.
Hong Kong was subject to a mutual evaluation and a Report on Hong Kong was published in September 2019, where the FATF will specify recommendations on areas for improvement. Hong Kong is scheduled to undergo a regular technical compliance assessment in February 2023 and an effectiveness assessment in June 2024. The Legislative Proposals are specific in that they “…will be expected to have introduced AML/CTF regulation for the VASP…sectors…” So it is quite apparent their intention that the Legislative Proposals will be passed into law in time for June 2024.
The Legislative Proposals specifically notes that other FATF member economies have either set up or are setting up their own regulatory and supervisory regimes for VASPs.
Proposals put forward in the Consultation Paper
Specifically, the Legislative Proposals suggest amending the current Anti-Money Laundering and Counter-Terrorist Financing Ordinance (Cap. 615 of the Laws of Hong Kong) (“AMLO”). Here’s A summary of the Legislative Proposals:
Expanding the scope of the AMLO to cover VASPs (currently VASPs are not included).
Implement a licensing regime for VASPs where any person intending to conduct the regulated business of a virtual asset trading platform in Hong Kong will be required to apply for a licence from the SFC and also need to meet a “fit and proper test” similar to that required of other financial sectors. Licensed VASPs will then be subject to the AML/CTF requirements under Schedule 2 of the AMLO and “…other regulatory requirements for investor protection purposes”. Schedule 2 of the AMLO basically sets out requirements relating to customer due diligence and record-keeping, and special circumstances. Examples of this include identification checks and to continuously monitor business relationships.
Give the SFC powers to supervise a VASPs’ compliance of the AMLO requirements.
Then the question is, what are VASPs or VAs?
Scope of the Legislative Proposals
The Legislative Proposals specifically covers VASPs and VAs, so it is important to know their definition. This is set out in the Legislative Proposals.
Virtual Asset Services Providers
The Legislative Proposals takes the definition of VASPs from that of the FATF and is defined as, “…a VASP is a person who, as a business, engages in specified activities involving VAs. The specified activities cover (i) exchange between VAs and fiat currencies; (ii) exchange between one or more forms of VAs; (iii) transfer of VAs; (iv) safekeeping and/or administration of VAs or instruments enabling control over VAs; and (v) participation in and provision of financial services related to an issuer’s offer and/or sale of a VA.”
Virtual asset exchanges
The Legislative Proposals proposes to designate the business of operating a VA exchange as a “regulated VA activity” under the AMLO and require a VASP licence from the SFC and subject to passing the “fit and proper” person test and other regulatory requirements.
Specifically a VA exchange is proposed to be defined as “…any trading platform which is operated for the purpose of allowing an offer or invitation to be made to buy or sell any VA in exchange for any money or any VA…”
The Legislative Proposals, however mention that “peer-to-peer trading platforms” will not be considered as a VA exchange and thus not subject to the licensing requirements. According to the Legislative Proposals, peer-to-peer trading platforms are platforms that only provide a forum where buyers and sellers post their bids and offers, with or without automatic matching mechanisms, for the parties themselves to trade at an outside venue. However, the actual transaction must be conducted outside the platform, and the platform is not involved in the underlying transaction. If for example the platform comes into possession of any money or any VA at any point in time, they would still be considered a “VA exchange”.
VA activities outside of exchanges (OTC desks etc): Are they covered?
However there are other businesses dealing with VAs that aren’t exchanges. For example VA payment systems, VA custodian services and over the counter trading and crypto ATMs (Genesis Block Hong Kong comes to mind).
According to the Legislative Proposals, they already have interface with financial institutions (e.g. when converting into fiat). This means that their money flow is already traceable for AML/CTF purposes and are already subject to the statutory obligations of reporting suspicious transactions etc. Hence the FSTB says they will nevertheless keep in mind the evolving landscape in relation to these activities and the licensing regime will be kept flexible so it may be expanded to cover other VA activities if the need arises in the future.
Virtual Assets
The FSTB also intends to adopt the definition of a VA as provided by the FATF but in more specific terms. The proposed definition is that a VA is, “…a digital representation of value that is expressed as a unit of account or a store of economic value; functions (or is intended to function) as a medium of exchange accepted by the public as payment for goods or services or for the discharge of a debt, or for investment purposes; and can be transferred, stored or traded electronically.”
What is not covered under the scope of a VA would be central bank digital currencies (China’s DCEP comes to mind), financial assets (e.g. securities) which are already regulated by the SFO, and closed-loop limited purpose items that are non-transferable, non-exchangeable and non-fungible (e.g. gaming coins).
However stablecoins (i.e. VAs purportedly backed by some form of asset to stabilise their value) are covered by the definition of VAs.
Regulatory requirements: are retail investors banned from trading cryptocurrencies?
If the VA business falls under the definition of a VASP and are not other VA activities which are excluded, they will be subject to the licensing regime. With reference to the existing opt-in regime, the Legislative Proposals proposes to empower the SFC to impose licensing conditions on licensed VASPs and regulatory requirements. One such requirement that is particularly concerning to cryptocurrency enthusiasts is the requirement that VASPs should only offer services to “professional investors”. However the Legislative Proposals suggest that this restriction should only be required at the “initial stage” and note that the SFC will continue to monitor the market and reconsider this position as the market matures in the future.
Hong Kong’s crypto community reacts to the Legislative Proposals
Sam Bankman-Fried, CEO of FTX Exchange gave his thoughts on the Legislative Proposals. He noted that it is still in the consultation stages and that whether or not an exchange “is” in Hong Kong so as to be covered by the Legislative Proposals are subtle and non-obvious.
OSL, which is the only known recipient of “approval in principle” from the SFC under the current opt-in licensing regime appears more positive. On Twitter, OSL mentions that the Legislative Proposals significantly supports OSL’s strategic objective to be the first choice for regulated digital asset ventures and that it can balance market supervision and development, and provide investors with better protection.
OKEx has not made any comments on this. We don’t see this as surprising considering they have more pressing issues to deal with, such as the fact that OKEx withdrawals are still suspended due to the arrest of Star Xu.
Same can be said for Huobi, which is also dealing with rumours concerning the arrest of a Senior Executive by Chinese local officials.
Bitmex of course is also in a bit of hot water, as civil and criminal proceedings have been respectively issued by the US DOJ and CFTC against BitMEX, its CEO Arthur Hayes, together with other key personnel and affiliates. Their CTO was also arrested in the US.
Meanwhile, Leo Weese, Co-founder at The Bitcoin Association of Hong Kong gives his take in a blog post. He notes that whilst he is not opposed to regulation per se, the Legislative Proposals “…a massive overreach of the SFC’s mandate and a de facto ban of Bitcoin in Hong Kong”. In particular, Weese criticises the Legislative Proposals as confusing and unclear, noting also that it is the most restrictive proposal compared to any other FATF member economies. However, it can also be considered that it is merely the SFC’s initiative to implement FATF decisions rather a conspiracy to ban Bitcoin. Finally, Weese expects significant push back against the Legislative Proposals given previous resistance against previous initiatives aimed at money laundering.
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