Hong Kong currency dealers usher in Oppenheimer moment, OTC supervision is ready to go

Author: Xiao Si Lawyer

Judging from the currency dealers that Si Sister’s team has come into contact with in practical cases, they can be roughly divided into two types in terms of behavior patterns: reliable and unreliable. . Unreliable currency dealers are generally bold and arrogant, dare to collect money offline, and accept all comers without censoring customers; most reliable currency dealers are cautious and do not trade with strangers. If they do business on the Internet, most of them will A number of risk notifications and disclaimers will also be publicly issued (although many of these "disclaimers" do not really disclaimers).

Recently, as our country’s public security organs have cracked down on cyber crimes and currency-related crimes in an increasingly wider and more severe manner, many currency dealers (even reliable currency dealers) have been involved, and they are considering whether to " Exhibiting business overseas has become a “must answer” question for old friends. As the companions of Web3 friends on their entrepreneurial journey, the Sajie team will analyze today the feasibility of "moving" your business to Hong Kong based on a series of OTC regulatory measures introduced by Hong Kong in 2024 and the recent regulatory trends. sex.

(1) Using cryptocurrency to pay wages is not considered a valid salary payment, and there is a risk of labor disputes

Crypto-asset OTC (over-the-counter), generally refers to In addition to licensed crypto-asset trading platforms, entities that provide services such as "currency-to-currency exchange" and "fiat-to-crypto currency exchange" for individuals or other entities are also crypto-asset service providers in a broad sense ("VASP" for short) ).

Since Hong Kong made a public statement to embrace crypto assets in 2023, OTC has indeed ushered in a wave of rapid development in Hong Kong. A recent unofficial figure: There are about 200+ lines in Hong Kong that provide legal currency and cryptocurrency exchange services. There are also 200+ OTC currency merchants based in Hong Kong and open to Hong Kong residents in both physical stores (or automatic trading machines) and online. Generally speaking, they are thriving.

However, the development of things cannot be smooth sailing. The JPEX incident in early 2024 (a large number of OTC currency dealers were involved in the case, which provided a money laundering channel for the fraud gang and seriously damaged the interests of Hong Kong crypto asset investors). Hong Kong's OTC industry has brought a huge blow, and it has also caused regulatory agencies to further accelerate the supervision of cryptocurrency, and the policy window period has been rapidly shortened. This has resulted in a less complete OTC supervision that has entered a stage of preparation.

Of course, Sister Sa’s team does not think that Hong Kong’s regulation of OTC is wrong. After all, in the current lack of legal regulations, we cannot expect industry self-discipline to completely drive out “bad coins”. The supervision of the OTC industry and currency dealers is in It must be done, but whether the specific regulatory measures are "appropriate" remains to be examined.

In February 2024, the Hong Kong government released a public consultation document on the "Legislative Proposal for the Regulation of Over-the-Counter Trading of Virtual Assets" (hereinafter referred to as the "Public Consultation"), plans to further amend the Anti-Money Laundering and Counter-Terrorist Financing Ordinance (hereinafter referred to as the "Anti-Money Laundering Ordinance"). Generally speaking, the public consultation revealed that Hong Kong plans to impose restrictions on VASPs engaged in OTC business. Carry out licensing supervision, and at the same time, based on the principle of "same risk, same supervision", limit the currencies that VASPs engaged in OTC business can exchange. The details are as follows:

(1) Which businesses will be regulated?

It should be noted that the above business regulatory scope is premised on "operating virtual asset OTC trading business in Hong Kong" or "actively promoting the provision of virtual asset OTC trading services to the Hong Kong public".

(2) Who is in charge?

Slightly different from the fact that the VASP license is under the jurisdiction of the Hong Kong Securities and Futures Commission (hereinafter referred to as "SFC"), Hong Kong OTC is under the jurisdiction of the Customs. VASPs engaged in cryptocurrency OTC business need to apply for a license from Hong Kong Customs.

In fact, Hong Kong Customs has always played an important role in Hong Kong's financial supervision and financial security. For example, the "Money Service Operator License" stipulated in Hong Kong's "Anti-Money Laundering Ordinance" is also commonly known as "Money Service Operator License" MSO license" is issued by the Hong Kong Customs. Considering that the cryptocurrency OTC business has certain similarities with the common money laundering and terrorist financing risks under MSO licenses, Hong Kong Customs may have more experience in supervising this type of business. Therefore, the Hong Kong government intends to issue a crypto asset OTC license. Handed over to customs.

(3) What qualifications are required to apply for an OTC license?

1. The applicant is qualified

According to the recommendations made by the "Public Consultation", applicants for OTC licenses need to meet two conditions: (1) A company established in Hong Kong with a fixed place of business ; Or, (2) a non-Hong Kong company registered under the Hong Kong Companies Ordinance. This requirement is actually similar to the previous SFC’s main qualification requirements for applicants applying for a VASP license.

It should be noted that if the applicant is operating in a non-physical store form (for example, using an Internet platform to conduct transactions), he or she needs to provide the office address and mailing address of its local managers in Hong Kong and the platform’s local account books in Hong Kong. location and other details.

2. Fit and proper requirements

Based on the recommendations made by the "Public Consultation", applicants for OTC licenses must meet the "fit and proper" standard. Specifically, the applicant, directors and ultimate owners ( (i.e. the actual controller) must not: (1) be convicted of money laundering, terrorist financing offenses or other serious offences; (2) be convicted of fraud, corruption or dishonesty; (3) be involved in any bankruptcy or liquidation procedures; (4) Failure to comply with anti-money laundering and terrorist financing and other applicable legal requirements.

Sajie’s team believes that this requirement can actually be seen as a replica of the "suitable candidate" requirement 3 of the MSO license. The overall requirements are relatively loose, and there are no requirements for suitable candidates similar to the professional experience or academic background requirements in the VASP license. Judging from this perspective, the overall application difficulty should be lower. Of course, obtaining an OTC license also requires the currency dealer to appoint a compliance officer and a money laundering reporting officer.

03 大陆币商把业务搬到香港，可行吗？

此前飒姐团队已经在文章中分析过，在我国大陆范围内经营 OTC 业务，踩红线风险极高，最常见的就是已非法经营罪定罪处罚。那么，大陆币商是否可以将业务搬到香港？

飒姐团队认为，此举可行，但香港并非法外之地，将业务转移首先需要承担高昂的合规成本，其次则需要对业务条线进行合规，与黑灰产业作出切割。

需要额外提示的是，“公众咨询”目前对香港 OTC 业务提出两个几位影响币商业务的要求：（1）涉及 8000 （港）元或以上的虚拟资产转帐，必须对客户执行客户尽职审查，包括全名、身分证号码等；（2）OTC 商可交易的资产，只可涵盖在获证监会发牌的虚拟资产交易平台提供零售交易的代币、以及获金管局发牌的稳定币，换言之，也就是暂时只能兑换比特币和以太坊这两种币。

目前公众咨询已经结束，相关规范呼之欲出，在这个 OTC 业务的奥本海默时刻，合规前行尤为重要。

纵然是面对这些严格的监管要求，其实不少币商仍然看到了香港作为一个国际金融中心的潜在机遇。飒姐团队认为，尽管香港为大陆币商提供了一个相对较为宽松的监管环境，但风险和挑战依然存在。在这个充满变数的市场中，币商们需要保持敏锐的洞察力和灵活的应变能力，以应对可能出现的各种情况。只有这样，币商才能在香港这个国际金融中心中立足，并实现自身的可持续发展。

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