香港董事学会：与证监会、港交所、财汇局电话会议沟通，呼吁上市公司董事以诚恳态度应对业绩的披露工作

瑞恩资本RyanbenCapital 2022-05-10

2020年2月7日，香港董事学会(The Hong Kong Institute of Directors)吁请上市公司董事，在疫情肆虐之际，仍以诚恳态度履行职责，应对业绩的披露工作。

2月4日，香港证监会与港交所发布一份题为《有关在严重新型传染性病原体呼吸系统病的旅游限制下如何刊发业绩公告》的联合声明。

疫情肆虐，预料会影响部分上市公司的业绩披露工作计划和进度，对不少上市公司董事而言，是个难题。

与香港证监会、港交所、财务汇报局，联席电话会议沟通

日前，香港董事学会与香港证监会（由企业融资部执行董事何贤通先生率领）、港交所（由上市主管陈翊庭女士率领）、财务汇报局（由主席黄天佑博士率领）的团队进行联席电话会议，深入讨论相关事宜。

电话会议中，香港董事学会的与会代表就董事们的忧虑表达意见，而两家监管机构亦就联合声明的要旨和目的作解说。

经过坦诚的交流讨论，香港董事学会获得一些信息，相信可以缓解董事们的顾虑。是次《联合声明》的主要目的，是要维持香港金融市场有秩序及持续运作。一刀切延后业绩公布会严重打击香港市场整体的信任度，产生深远的负面影响。

按照《联合声明》，上市公司的董事会可能要在审计师未能展开工作之前便发布财务信息。根据我们的了解，监管机构明白到目前情况属非常时期，影响不少公司。董事们不须过分忧虑，最重要的是能以诚恳态度履行自己的董事职责。

我们给董事一些以下的建议和意见：

链接：https://www.hkiod.com/7Feb2020_final.pdf

Results available but for the lack of agreement with the auditor

The Joint Statement by its wording would require issuers to publish preliminary results by the deadline date if such results are available but for the lack of agreement with the auditor.

To publish without agreement with the auditor would mean publishing information when the auditing team has not completed its work. The issuer’s board may have missed or misunderstood the latest changes in accounting standards. The auditor may have a valid challenge to the treatment of certain assets or liabilities. The lack of agreement with auditor could be significant. Directors have reasons to be worried.

Based on our understanding, if the issuer’s board has been diligent and reasonable in their treatment of the accounts and the interpretation of applicable standards, that the auditor may later disagree would not subsequently attract regulator actions unless there is evident fraud or other serious wrongdoing.

Other cases

In all other cases, the Joint Statement would require issuers to consult with the Exchange on what information is available, and to describe uncertainties and state how they may affect the numbers so the SFC and the Exchange can assess whether the information available is “accurate and complete in all material respects” and, if so published, would facilitate an informed investment decision.

The nature and scope of the uncertainties that may be present could well be material and will involve much value judgment. The audit process is a means to provide assurance on the validity and credibility of the information eventually published. Without audit, an issuer’s board may steer conservative and, out of liability reasons, become inclined to put out many disclaiming and qualifying statements as to reduce the utility of the information published.

Based on our understanding, the regulators indeed do not want a flood of cautionary statements as to make disclosure not useful. The regulators are more interested in knowing whether the board has put in a good faith effort to understand the issuer’s financial information available, the key audit matters that would more likely involve judgment (and, in normal times, actual discussions with auditor), how the board has come down to the position taken as to these key audit matters and then succinctly inform investors the rationale. Based on our understanding, a good faith effort to have gone through this deliberation process would not subsequently attract regulator actions unless there is evident fraud or other serious wrongdoing.

Ultimate responsibility rests with the whole board

The Joint Statement says the SFC and the Exchange will consider the views of the issuer’s audit committee on the unaudited financial information available to the issuer.

Audit committee members are likely to be more familiar with the issuer’s financial reporting matters. And by operation of the Corporate Governance Code, an issuer’s audit committee would have a majority of independent non-executive directors. The views of the independent members on the audit committee are a valuable check on management, we agree.

But the buck does not stop at the audit committee. The views of other independent directors not on the audit committee are also important. Although the audit committee has an important role to play in financial reporting, the whole board remains ultimately responsible for an issuer’s external financial reporting.

Advice to boards

HKIoD has some advice to board members.

➢ For all board members, executives and non-executives, and not just those on the audit committee, they should remember that the whole board is collectively responsible.

➢ For all board members, they should pay attention to key issues that would affect the issuer’s financial position. Often, such would involve the valuation of assets, the recognition of revenue, the classification of liabilities in relation to loan covenants, etc. The issuer’s cash flows situation is another area not to be missed.

➢ For the non-executive directors especially, they should have obtained adequate assurance in writing from the appropriate executive members (the CFO and CEO, may be other executives depending on circumstances) that there has been no failures in internal control, no material inconsistency in financial record keeping, etc. and that there has been no unusual event or occurrence at relevant times that could affect the scope, accuracy and reliability of the financial information. To the extent possible, they should maintain close contact with key members of the audit team to try to get help with identifying the areas to focus on.

➢ For the non-executive directors especially, they should be proactive in audit committee and board proceedings to question and check on the information, assumptions and assurances given by management. Non-executive directors who are not audit committee members may consider sitting in audit committee sessions to help their understanding.

➢ For the non-executive directors (perhaps even executive directors) who may be prevented from travelling to a committee or board meeting, they need to assess if they are thereby prevented from fully grasping the picture in order to form an opinion on the subject matter. Although video-conferencing technology could enable committee and board meetings to take place, this meeting mode could mean they are less able to spot and detect nuances in a dialogue and exchange than they otherwise could in an inperson meeting. To the extent a director feels this impedes their ability to explain a matter or to raise a query, the director should voice out and not feel pressed into going along.

➢ Each board member should ensure that the audit committee and board deliberations are well recorded in a way that demonstrates they have made the necessary inquiry and met their duty of care.

➢ For all board members, they should bear in mind that continuous disclosure obligations remain. Under prevailing rules, and as highlighted in the Joint Statement, events or occurrences whether due to the coronavirus outbreak which could have a material impact on share price will need to be disclosed by way of an announcement.

Contact the regulators in case of real difficulty

All in all, a board member should not feel pressed to assent to release of financial information just to make the deadline. But each board member should put in a good faith effort to keep the financial reporting process going. The Joint Statement does invite issuers who will have difficulty in publishing financial information on time to contact the Exchange as soon as possible to discuss the situation.

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