Newsletter – October 2014

Newsletter – October 2014

Contents:

  1. SFC seeks court orders against former chairman and directors of Sinogreen
  2. SFC revokes license of John David Lawrence and fines him HK$900,000
  3. Market participants urged to comply with short position reporting
  4. Market Misconduct Tribunal bans Tiger Asia and Bill Hwang from trading securities in Hong Kong
  5. SFC obtains disqualification order against former executive director of Tack Fiori International Group Limited
  6. SFC bans Roger Albert John and Hamish Gordon Cruden from re-entering the industry for life
  7. Takeovers Panel rules no mandatory general offer obligation triggered for China Oriental
  8. SFC signs Memorandum of Understanding with CSRC to strengthen enforcement cooperation under Shanghai-Hong Kong Stock Connect
  9. SFC bans Yan Chee Yung from re-entering the industry for life
  10. SFC suspends Ho Siu Po’s license for seven months

1.   SFC seeks court orders against former chairman and directors of Sinogreen

On 8 October 2014, the Securities and Futures Commission (“SFC”) commenced legal proceedings in the Court of First Instance (“CFI”) against the former chairman (Mr. Tong Shek Lun) and two former directors (Ms Kinny Ko Lai King and Ms Regina Chung Wai Yu) of Sinogreen Energy International Group Limited (“Sinogreen”)

Background

Sinogreen was formerly known as Karce International Holdings Company Limited and was listed on the Main Board of the Stock Exchange of Hong Kong Limited (“SEHK”) on 13 March 1998. Sinogreen was principally engaged in the business of manufacturing and trading electronic products, conductive silicon rubber keypads, printed circuit boards,  telecommunication products and investment holdings.

The legal proceedings were commenced under section 214 of the Securities and Futures Ordinance (“SFO”). The first hearing of the petition presented by the SFC will be heard in the CFI on 16 December 2014.

Allegations

The SFC alleges that Tong, Ko and Chung breached their duties as directors of Sinogreen by disposing of a subsidiary in 2008 resulting in losses to the company. The SFC is seeking court orders to disqualify the three former directors as company directors and compensate Sinogreen for the losses allegedly caused by their misconduct.

The SFC’s action follows an investigation into Sinogreen’s disposal of a subsidiary, Jet Master Limited, which engaged in the manufacturing of printed circuit boards on the Mainland (“the Disposal”). The SFC alleges that:

  • In the course of negotiating the Disposal with the purchaser, Tong entered into a secret agreement with the purchaser via a private company (Extract Group Limited) and received a secret profit of US$1 million.
  • Tong was required but failed to make full and proper disclosure of his interests in the arrangement with the purchaser to Sinogreen, his fellow directors, the SEHK and Sinogreen’s shareholders.
  • Ko and Chung failed to act with due care and diligence and to make full and proper inquiries about the Disposal before approving it.
  • Tong, Ko and Chung failed to ensure Sinogreen fully complied with disclosure and approval requirements under the Listing Rules of SEHK (the “Listing Rules”).. In particular, the SFC alleges that when taking into account the consultancy agreement Tong signed with Extract Group Limited, the Disposal should have been treated as both a major transaction and a connected transaction under the Listing Rules. Therefore, Sinogreen had failed to comply with the disclosure and approval requirements applicable to a major transaction and a connected transaction

Comment

Readers should note that depending on the transaction classification under Rule 14.06 of the Listing Rules, listed issuers are subject to different obligations. These classifications are made using the percentage ratios set out in Rule 14.07 of the Listing Rules, according to which the Disposal was a disclosable transaction, meaning a transaction or a series of transactions (aggregated under rules 14.22 and 14.23) by a listed issuer where any percentage ratio is 5% or more, but less than 25%. Such transactions are subject to reporting, publication of announcement and circular requirements but is exempt from the shareholders’ approval requirement under Chapter 14 of the Listing Rules.

Furthermore, pursuant to section 214 of the SFO, if a director is found to be wholly or partly responsible for the company’s affairs which were conducted in a manner involving fraud, misfeasance or other misconduct towards it or its members or resulting in members not having been given all the information that they might reasonably expect, the court may:

  • make orders to disqualify a person from being a director or being involved, either directly or indirectly, in the management of any corporation for up to 15 years under section 214 of the SFO;
  • order a company to bring proceedings in its own name against any person specified in the order; and
  • make any other order it considers appropriate.

For details, please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR117

2.  SFC revokes license of John David Lawrence and fines him HK$900,000

On 9 October 2014, SFC revoked the Types 1, 4, and 9 license of John David Lawrence, a representative of PFC International Company Limited (“PFC”), and fined him HK$900,000 for failings relating to his sale of the EEA Life Settlements Fund (the “Fund”) to clients.

The Fund

The Fund is a traded life policy investment, or a viatical settlement, which acquired and traded in outstanding life insurance policies issued in the United States. It is not a product authorised by the SFC.

On 28 November 2011, the UK Financial Services Authority issued a guidance consultation on traded life policy investments. It also indicated its intention to consult on a ban of all marketing of those products to retail investors as they were complex and high risk, and thus unlikely to be suitable for retail investors. On 30 November 2011, the Board of Directors of the Fund decided to suspend dealings in the Fund. The suspension was lifted on 1 January 2014 after a restructuring of the Fund came into effect.

Background

An SFC investigation revealed that despite PFC’s classification of the Fund as “execution only” with a number of risk factors that should be disclosed to clients, Lawrence, who was the chairman and a responsible officer of PFC at the material time, sold the Fund to 31 client accounts involving a transaction amount of approximately HK$28 million from March 2009 to October 2011.

Under PFC’s compliance manual, “execution only” funds can only be purchased according to clients’ requests. Account managers are not allowed to promote or give advice to clients on these funds. Lawrence was the only account manager of PFC who had sold the Fund to clients. Additionally, a significant number of clients who bought the Fund through Lawrence were elderly clients of over 65 years old or above, despite the liquidity risk of the Fund and the risk of deferral of redemption requests associated with the Fund.

The SFC found that Lawrence had failed:

  • to ensure the suitability of the Fund to his clients;
  • to ensure that the risks associated with the Fund were fully disclosed to his clients;
  • to document the investment advice given to his clients in respect of the Fund, and the rationale underlying the advice and to provide clients with a copy of the written advice; and
  • as a member of PFC’s senior management, to set appropriate standards for his staff to follow to ensure the suitability of products recommended to clients.

Lawrence’s misconduct calls into question his fitness and properness to remain a licensed person as he disregarded the firm’s due diligence result. Furthermore, he ignored his fundamental duty to ensure the suitability of his investment recommendation and to present balanced views regarding the Fund. Moreover, as the Chairman of PFC and a member of senior management at the material time, Lawrence failed to set appropriate standards for his staff to follow and failed to ensure that PFC’s investment advisory functions were properly directed and managed to serve the best interests of his clients.

In deciding on the penalty, the SFC took into account his financial position, his cooperation and his otherwise clean disciplinary record.

Comment

General Principle 2 (diligence) and paragraphs 3.4 (advice to clients: due skill, care and diligence) and 5.2 (know your client: reasonable advice) of the SFC Code of Conduct require licensed individuals to ensure that, through the exercise of their due diligence, their investment recommendations to clients are based on thorough analysis and are reasonable in all relevant circumstances. In this case, in assessing the suitability of the Fund to clients, Lawrence should have considered diligently whether the investment return characteristics and risk exposures of the Fund are suitable for the specific clients and are in the best interests of the clients, taking into account the clients’ investment objectives, investment horizon, risk tolerance and financial circumstances. The onus is on Lawrence, and not the clients, to show that the Fund was an appropriate one for the clients.

A failure to comply with the Code of Conduct reflects negatively on an individual’s fitness and properness to be licensed under Paragraph 7.1 of the Fit and Proper Guidelines, and could lead to serious consequences such as fines, suspension and revocation of a SFC license. Licensed individuals and corporations should therefore note that consistently reviewing internal controls and procedures is extremely important to maintain a high standard of diligence and integrity to avoid breaching regulatory requirements.

For details please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR118

3.  Market participants urged to comply with short position reporting

On 9 October 2014, the SFC issued a reminder to all market participants to comply with the requirements under the Short Position Reporting Regime (“Regime”). This was triggered by the SFC’s identification of deficiencies and shortcomings since the implementation of the Securities and Futures (Short Position Reporting) Rules (“Rules”).

Since the commencement of the Regime in June 2012, the SFC found that some market participants were late in filing reports on their short positions as required by the Rules due to oversight or delays arising from change of personnel or overseas public holidays. The SFC has clarified that it does not regard any of these lapses as reasonable excuses, and that it expects market participants to have appropriate procedures in place to cope with every eventuality to ensure compliance with the Rules.

In the event where reports have been inaccurate or late due to market participants having appointed agents, market participants should note that a person who has a reportable short position remains legally responsible even if the appointed agent fails to comply with the Rules. Therefore, market participants who wish to appoint agents to report short positions on their behalf should ensure that their appointed agents have the necessary expertise and sufficient operational capacity to do so, and should monitor their agents’ performance on a regular basis.

In some cases, obvious errors were made in the reports filed, indicating that some market participants had failed to check their reportable short positions before submitting their reports to the SFC (such as making the effort to verify significant changes in short positions from previous reports). The SFC reiterated that it expects proper care to be exercised in calculating reportable short positions to ensure the accuracy of information contained in reports. An SFC-licensed corporation may also face disciplinary action for any failure to take proper care to ensure reports are accurate.

Comment

Readers should be aware that a contravention of the Rules without reasonable excuse may constitute a criminal offence and may call into question the adequacy of internal controls of SFC-licensed corporations. Specifically, under the Securities and Futures (Offences and Penalties) Regulation, any person who, without reasonable excuse, contravenes Rule 4(2) or Rule 4(4) of the Rules commits an offence and is liable on conviction to a maximum penalty of HK$100,000 fine and two years’ imprisonment. Market participants should therefore implement measures to ensure accurate and timely reporting of short positions, as the SFC will take appropriate action with respect to any failure to comply with the Rules.

The Securities and Futures (Short Position Reporting) Rules can be viewed online via Hong Kong’s Department of Justice Bilingual Laws Information System: http://www.legislation.gov.hk/eng/home.htm

For details please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR119

4.  Market Misconduct Tribunal bans Tiger Asia and Bill Hwang from trading securities in Hong Kong

On 9 October 2014, the Market Misconduct Tribunal (“MMT”) held that Tiger Asia Management LLC (“Tiger Asia”) and two of its senior officers, Mr. Bill Sung Kook Hwang and Mr. Raymond Park engaged in market misconduct in Hong Kong.

Background

Tiger Asia is a New York-based asset management company specialising in equity investments in China, Japan and Korea. The three senior officers in question are Mr. Bill Sung Kook Hwang, Mr. Raymond Park and Mr. William Tomita (the “Three Senior Officers” or collectively, the “Tiger Asia Parties”). Tiger Asia has no physical presence in Hong Kong.

Park joined Tiger Asia in April 2006 and, at all times since, his job titles have consisted of Managing Director and Head of Trading. His responsibilities included managing the trading desk, supervising orders and managing broker relationships. Tomita joined Tiger Asia in April 2008 and supported the trading activities led by Park. Both Park and Tomita reported to portfolio manager, Hwang, whom the SFC alleged made the trading decisions for the trades in shares of China Construction Bank Corporation (“CCB”). Subsequently, similar allegations have been made regarding Tiger Asia’s trading of shares in Bank of China Limited (“BOC”).

Proceedings have formerly been instituted in the High Court between August 2009 until 20 December 2013 when a decision was made by the CFI to order the Tiger Asia Parties to pay HK$45,266,610 to investors affected by their insider dealing involving shares of BOC and CCB. The restoration amount represents the difference between the actual price of BOC and CCB shares sold by Tiger Asia and the value of those shares taking into account the inside information known to Tiger Asia (as assessed by expert evidence). This is because where a person has contravened a provision of the SFO, the court is able, under section 213(2)(b) of the SFO, to make orders requiring a person to take steps as directed by the court, including steps to restore the parties to a transaction to the position they were in (or a substantially similar position) before the transaction was entered into.

In the High Court proceedings, the Tiger Asia Parties made admissions in a statement of agreed and admitted facts filed in the CFI by the SFC that they had contravened Hong Kong’s laws prohibiting insider dealing when dealing in the shares of BOC and CCB shares.

Proceedings in the MMT

On 15 July 2013, the SFC instituted proceedings in the MMT against Tiger Asia and the Three Senior Officers in relation to dealings in the securities of BOC and CCB. This was the first time the SFC had instituted proceedings in the MMT directly, pursuant to section 252A of the SFO. This provision was introduced in 2012 and gives the SFC direct access to the MMT. Formerly, only the Financial Secretary could initiate proceedings in the MMT.

The SFC did not pursue criminal charges against the Tiger Asia parties given the significant risk that criminal charges in Hong Kong are barred on the ground of double jeopardy because the parties had already been prosecuted in relation to the same conduct in the United States in proceedings that were criminal or would be viewed as criminal proceedings under Hong Kong law.

The MMT’s decision

The MMT, chaired by The Honourable Mr. Justice Michael Hartmann with Ms Florence YS Chan and Mr. Gary KL Cheung, held that the Tiger Asia Parties had engaged in market misconduct in Hong Kong, and ordered that Tiger Asia and Hwang be banned from trading securities in Hong Kong for a period of four years (the maximum period is five years) without leave of the court. The MMT has also issued cease and desist orders against both Tiger Asia and Hwang. While the Tiger Asia Parties admitted they had contravened Hong Kong’s laws prohibiting insider dealing when dealing in shares of BOC and CCB, Tiger Asia and Hwang had argued that no orders should be made against them by the MMT.

In its decision, the MMT found that Hwang’s conduct constituted “serious misconduct” and showed that “little trust can be placed in Bill Hwang’s integrity”. Thus in determining a banning period of four years, the MMT warned that “this heralds a sterner approach in respect of protective measures provided under our law. We are, however, unanimously of the view that the protection of our market is a matter of such public importance, and cold shoulder orders so central to providing that protection, that market operators who, by their actions, show they cannot be trusted must from now on expect orders that exclude them from the market for more lengthy periods of time”.

Furthermore, the SFC’s Executive Director of Enforcement, Mr. Mark Steward, said: “Tiger Asia and Hwang abused the trust of the Hong Kong market, flouted Hong Kong’s laws and damaged the financial interests of thousands of investors who had no means of protecting themselves from such misconduct. They were wrong if they thought this could be done with impunity because they were situated beyond Hong Kong.”

Although the MMT found that Park had engaged in market misconduct, they decided to make no order in relation to him given the evidence that he has suffered an incurable and seriously debilitating brain injury and is in no position to pose any threat to the integrity of the Hong Kong market.

Comment

Readers should note that if the MMT finds there has been market misconduct, it is empowered to make a range of orders, including orders prohibiting a person from acquiring or disposing of or otherwise dealing in securities, futures contracts or leveraged foreign exchange contracts in Hong Kong without leave of the Court for a period of up to five years (e.g. cold shoulder orders, cease and desist orders, etc.).

According to section 257 (1)(b) of the SFO, a cold shoulder order is an order that the person shall not, without the leave of the CFI, in Hong Kong, directly or indirectly, in any way acquire, dispose of or otherwise deal in any securities, futures contract or leveraged foreign exchange contract, or an interest in any securities, futures contract, leveraged foreign exchange contract or collective investment scheme for the period (not exceeding five years) specified in the order. Alternatively, a cease and desist order is defined under section 257(1)(c) of the SFO as an order that the person shall not again perpetrate any conduct which constitutes such market misconduct.

Given the severe consequences of market misconduct, licensed individuals and corporations should consistently conduct checks or consult independent advisors to ensure that they are in full compliance with the relevant provisions under section 245 of the SFO, which comprises of the following offences:

  • insider dealing;
  • false trading;
  • price rigging;
  • disclosure of information about prohibited transactions;
  • disclosure of false or misleading information inducing transactions; and
  • stock market manipulation.

For details please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR120

5.  SFC obtains disqualification order against former executive director of Tack Fiori International Group Limited

SFC obtained a disqualification order in the High Court against Mr Norman Ho Yik Kin, a former executive director of Tack Fat Group International Limited (“Tack Fat”), now known as Tack Fiori International Group Limited.

Background

The SFC commenced proceedings against Ho and three other former diretors of Tak Fat on 14 March 2014. In addition to seeking disqualification orders, the SFC also sought orders that Ho repays Tak Fat or other entities as the court sees fit HK$26 million, being the subscription price of the 40 million shares in Tak Fat which were allotted to his nominees to gain an advantage over other members of the company and the investing public, and/or accounts for any profits he has made through the trading of those shares.

Ho was disqualified from being a director or being involved in the management of any listed or unlisted corporation, without leave of the court, for a period of six years effective from 9 October 2014.

Admissions

The order was made after Ho admitted that he:

  • failed to ensure that Tack Fat gave its shareholders all the information that they might reasonably expect, and to comply with the disclosure requirements under the Listing Rules;
  • abdicated his responsibilities as a director of a publicly listed company;
  • breached his duties as a director in failing to exercise reasonable care and diligence in the management of Tack Fat, to act in good faith and in the best interests of Tack Fat, and to implement a sound and prudent system of financial control so as to minimise the risk of misappropriation of company assets; and
  • partly responsible for the business or affairs of Tack Fat having been so conducted.

Ho admitted also that he signed attendance sheets annexed to minutes of board meetings in which substantial transactions were purportedly agreed when he did not attend any such meeting. These meetings supposedly ratified real transactions, including a deal with a money lender in which Tack Fat charged substantial assets which should have been disclosed to the shareholders but it was not, and another meeting in which Tack Fat approved a sham transaction involving an undisclosed connected party in an acquisition of 40% of a Cambodian timber company. Ho admitted that at least one of the two board meetings approving the acquisition did not take place. He also conceded he did not understand the duties of a director and was conducting the affairs of Tack Fat without exercising proper independent judgment in fulfilling his duties as an executive director of a listed company.

The Court’s judgment

In delivering his judgment, The Honourable Mr. Justice Lam stated that since Ho was acting irresponsibly and with marked indifference to his duty as a director of Tack Fat, a disqualification order for six years would be appropriate.

Mr. Mark Steward, the SFC’s Executive Director of Enforcement, said: “Directors cannot abdicate their duties to safeguard the company’s interests and keep members properly informed. It is even worse if directors connive in records of meetings that have not taken place and in decisions that are detrimental to the company. The consequences will be serious as today’s decision by the court demonstrates. ”

Comment

Under section 214 of the SFO, the court may, inter alia, make orders to disqualify a person from being a director or being involved, directly or indirectly, in the management of any corporation for a period up to 15 years, if the person is found to be wholly or partly responsible for the company’s affairs having been conducted in a manner, amongst other, involving defalcation, fraud, misfeasance or other misconduct towards it or its members.

Readers should also note that such behavior constitutes market misconduct and will also reflect negatively on the fitness and properness of licensed individuals and corporations to carry out regulated activities of the SFC.

For further details, please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR121

6.  SFC bans Roger Albert John and Hamish Gordon Cruden from re-entering the industry for life

On 14 October 2014, the SFC banned Mr. Roger Albert John and Mr. Hamish Gordon Cruden, both former directors and responsible officers of Salisbury Securities Limited (“Salisbury”), from re-entering the industry for life.

Background

Salisbury was licensed under the SFO to carry on Types 1, 4 and 9 regulated activities. It was engaged principally in the business of securities trading and has about 100 clients.

The SFC issued a Restriction Notice on 18 March 2013, prohibiting the firm from carrying on its regulated activities under the SFO and dealing with client assets until further notice. At the time, Salisbury had about 100 active clients.

On 21 June 2013, the SFC made an urgent application to the High Court seeking the appointment of provisional liquidators for Salisbury on 21 June 2013.  The SFC’s application was based on a number of concerns about the whereabouts of nearly HK$9 million worth of securities and sales proceeds belonging to Salisbury’s clients. The SFC also asserted that it had been misled by Salisbury about its liquid capital calculations and its holdings in clients’ securities accounts.

Further, on 28 August 2013, the CFI ordered that Salisbury be wound up on the application of the SFC.

The sanction

The disciplinary actions in question follow an SFC investigation which found that Salisbury:

  • misused or misapplied securities and sale proceeds belonging to other clients to settle another client’s instructions and to discharge its own operational expenses;
  • failed to maintain the required minimum level of liquid capital from April 2012 to February 2013; and
  • provided false and misleading information to the SFC about the level of its liquid capital in financial retursn submitted to the SFC.

The SFC also found that Cruden, who moved to Manila in 2011 but remained as a director and responsible officer of Salisbury, nevertheless failed to keep himself informed as to the business of Salisbury and did not visit Salisbury’s office despite making regular trips back to Hong Kong. As part of Salisbury’s senior management, Cruden’s failure to participate at all in the management of Salisbury contributed to the breaches and failures of the company for which he must be equally responsible.

The disciplinary actions against John and Cruden follow the abovementioned restriction notice and winding up order obtained from the court.

Comment

Market participants should be aware that they are under various obligations if the holding of client money or securities are involved. These serve to protect the assets of both the firm and of clients. For instance, pursuant to section 4 of the Securities and Futures (Client Money) Rules, a licensed corporation who receives or holds client money is required to establish and maintain segregated accounts with an authorised financial institution and to designate such accounts as trust account or client account. Intermediaries also have the duty under section 10(1) of the Securities and Futures (Client Securities) Rules to reasonably ensure that client securities are not deposited, transferred, lent, pledged, re-pledged or otherwise dealt with. If these rules are not complied with, the SFC may issue Restriction Notices to protect existing assets of the firm including client assets.  The Restriction Notice ensures that any assets currently held by firm in question are not transferred while inquiries continue.

In addition to internal procedural checks to prevent market misconduct offences, licensed corporations may find it useful to engage in external advisors to ensure that they are compliant with section 6(1) of the Securities and Futures (Financial Resources) Rules, which requires licensed corporations to maintain at all times no less than the minimum required liquid capital. Schedule 1 of the Securities and Futures (Financial Resources) Rules set out in Table 2 the required liquid capital.

For details, please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR124

7.  Takeovers Panel rules no mandatory general offer obligation triggered for China Oriental

On 15 October 2014, the Takeovers and Mergers Panel (the “Panel”) upheld the Takeovers Executive’s (the “Executive”) ruling that the completion of certain transactions between ArcelorMittal, a substantial shareholder of China Oriental Group Company Limited (“China Oriental”), and counterparties involving shares of China Oriental on 30 April 2014 did not give rise to a mandatory general offer obligation under the Code on Takeovers and Mergers (“Takeovers Code”) by ArcelorMittal to acquire all the shares of China Oriental.

Background

Following a general offer by ArcelorMittal for shares in China Oriental in 2008, ArcelorMittal and Mr. Han Jingyuan, chairman of China Oriental, held 47% and 45% shares of China Oriental, respectively. As a result, the minimum public float requirement under the Listing Rules was not satisfied.

ArcelorMittal subsequently sold 9.9% and 7.5% of shares in China Oriental it owned to ING Bank (“ING”) and Deutsche Bank (“DB”), with a view to satisfying the requirement of the Listing Rules. As part of the transactions at the time, ArcelorMittal granted ING and DB put options entitling them to sell back the shares of China Oriental to ArcelorMittal at the original purchase price (with adjustments).

The put options expired on 30 April 2014 and ArcelorMittal proposed to extend the arrangement with the put option with ING for one year on amended terms. It also proposed to close the arrangement with DB and enter into an arrangement with Macquarie Bank Limited (“Macquarie”) which was similar to the amended arrangement with ING. These transactions were to be completed simultaneously. ArcelorMittal, whose shareholding in China Oriental was 29% at the time, consulted the Executive who confirmed on a consultation basis that a mandatory general offer would not be triggered as a result of these transactions.

As a result of the new arrangements between ArcelorMittal and the counterparties, i.e. ING and Macquarie, the independent non-executive directors of China Oriental applied to the Executive for a formal ruling that a mandatory general offer had been triggered by ArcelorMittal.

The Executive ruled on 21 August 2014 that ArcelorMittal had not triggered a mandatory general offer. On 1 September 2014, the independent non-executive directors of China Oriental applied to the Panel to review the Executive’s ruling.

The Panel’s decision

The Panel met on 25 September 2014 to consider the matter and concluded that the completion of the agreements between DB and ArcelorMittal on the one hand and ArcelorMittal and Macquarie on the other did not result at any time in ArcelorMittal acquiring additional voting rights as these voting rights passed directly from DB to Macquarie.

The Panel also ruled that Macquarie and ArcelorMittal are presumed to be acting in concert by virtue of the financial arrangements between them and the presumption had not been rebutted. The Panel further ruled that given the similarity of the arrangements, it would follow that both ING and DB were also parties presumed to be acting in concert with ArcelorMittal.

Since ArcelorMittal and its concert parties, i.e. DB, ING and Macquarie, held a combined 47% stake in China Oriental throughout the existence of such arrangements, the Panel concluded that the arrangements did not increase the concert parties’ aggregate holding; and did not cause any member of the concert party group to cross a mandatory offer trigger point, or any significant change to the concert party with the substitution of Macquarie for DB. As a consequence, a mandatory offer obligation had not arisen.

Comment

A mandatory offer is one which must be made in accordance with the conditions set out Rule 26 of the Takeovers Code. It must be made to the holders of each class of equity share capital of the company, whether the class carries voting rights or not, and also to the holders of any class of voting non-equity share capital in which such person, or persons acting in concert with him, hold shares.

Under the Rule 26 of Takeovers Code, a mandatory offer can be triggered (subject to the granting of a waiver by the Executive) where:

  • any person acquires, whether by a series of transactions over a period of time or not, 30% or more of the voting rights of a company;
  • two or more persons are acting in concert, and they collectively hold less than 30% of the voting rights of a company, and any one or more of them acquires voting rights and such acquisition has the effect of increasing their collective holding of voting rights to 30% or more of the voting rights of the company;
  • any person holds not less than 30%, but not more than 50%, of the voting rights of a company and that person acquires additional voting rights and such acquisition has the effect of increasing that person’s holding of voting rights of the company by more than 2% from the lowest percentage holding of that person in the 12 month period ending on and inclusive of the date of the relevant acquisition; or
  • two or more persons are acting in concert, and they collectively hold not less than 30%, but not more than 50%, of the voting rights of a company, and any one or more of them acquires additional voting rights and such acquisition has the effect of increasing their collective holding of voting rights of the company by more than 2% from the lowest collective percentage holding of such persons in the 12 month period ending on and inclusive of the date of the relevant acquisition.

For the purposes of the Takeovers Code, persons acting in concert are persons who, pursuant to an agreement or understanding, actively cooperate to obtain or consolidate “control” of a company (i.e. holding 30% or more of its voting rights) through an acquisition of voting rights.  The Takeovers Code presumes a person (other than an authorised institution under the Banking Ordinance) who provides financial assistance to another for the acquisition of voting rights to be acting in concert with each other, unless the contrary is established.

The Panel’s decision can be accessed at:

http://www.sfc.hk/web/EN/files/CF/pdf/Takeovers%20and%20Mergers%20Panel%20-%20Panel%20Decision/China%20Oriental%20Decision%EF%BC%BFFinal%20version%EF%BC%BF141014%20%28e%29.pdf

For details, please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR126

8.  SFC signs Memorandum of Understanding with CSRC to strengthen enforcement cooperation under Shanghai-Hong Kong Stock Connect

On 17 October 2014, the SFC and the China Securities Regulatory Commission (“CSRC”) entered into a Memorandum of Understanding (“MoU”) on strengthening cross-boundary regulatory and enforcement cooperation under the proposed Shanghai-Hong Kong Stock Connect pilot programme (“Stock Connect”).

The Stock Connect is a pilot programme for establishing mutual stock market access between Hong Kong and the Mainland.

The MoU was signed by the Chairman of the SFC, Mr Carlson Tong and the Chairman of the CSRC, Mr Xiao Gang. Mr Tong commented that the purpose of the MoU is to “establish an enhanced platform for infomration sharing, alerts, investigative assistance and joint investigations for both the SFC and the CSRC so together we can act to protect the integrity of both Hong Kong and Shanghai markets under the Stock Connect pilot programme”. Mr Xiao Gang goes further to state that the signing of the MoU serves as a “pre-requisite for the smooth commencement of the Stock Connect pilot programme and further enhances cross-boundary regulatory and enforcement cooperation between both sides, which is conducive to the upholding of openness, fairness and integrity of the markets and of the legitimate interests of investors, thereby promoting the healthy development of both capital markets.”

Under the MoU, the SFC and the CSRC agreed to:

  • provide for the sharing of information and data of risks and alerts about potential or suspected wrongdoing in either the Hong Kong or Shanghai stock markets under Stock Connect;
  • establish a commitment and a process for joint investigations;
  • ensure complementary enforcement action can be taken where there is wrongdoing in both jurisdictions; and
  • make sure enforcement actions in both jurisdictions operate to protect the investing public of both the Mainland and Hong Kong, including actions that may be necessary to provide financial redress or compensation to affected investors.

The MoU will be activated upon the launch of the pilot programme subject to the finalisation of all necessary approvals, market readiness and relevant operational arrangements.

The MoU is posted on the SFC website, at:

http://www.sfc.hk/web/EN/about-the-sfc/collaboration/mainland/shanghai-hong-kong-stock-connect.html

For details, please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR127

9.  SFC bans Yan Chee Yung from re-entering the industry for life

On 23 October 2014, the SFC has banned Mr Yan Chee Yung, a former employee of Chong Hing Securities Limited, from re-entering the industry for life for defrauding his clients and misappropriating client money.

Background

Yan was licensed under the SFO to carry on Type 1 (dealing in securities) regulated activity and was accredited to Chong Hing Securities Limited between 10 January 2011 and 11 February 2014. He was also a relevant individual engaged by Chong Hing Bank Limited to carry on Type 1 (dealing in securities) regulated activity between 1 April 2003 and 10 February 2014, and Type 4 (advising on securities) regulated activity between 1 April 2003 and 31 December 2010.

The SFC found that, between June 2006 and February 2014, Yan:

  • misrepresented to 18 clients of Chong Hing Securities Limited and Chong Hing Bank Limited that he could buy shares on their behalf at a price lower than market price and/or promised them that he would buy back the shares at a guaranteed price, and induced the clients to enter into private investment arrangements with him;
  • induced the clients to give him money to buy shares on their behalf and misappropriated their money and used it for his own personal expenses, gambling and settling credit card debts; and
  • falsified transaction records to gain the clients’ trust.

In deciding the sanction, the SFC took into account all relevant circumstances including that:

  • Yan’s misconduct was gravely dishonest and lasted for more than seven years;
  • he abused the trust which his clients placed in him and his actions resulted in losses to the clients;
  • he admitted his misconduct during the SFC’s investigation; and
  • he had an otherwise clean disciplinary record.

The Court’s judgment

Yan was sentenced to imprisonment of 36 months after he was convicted of 18 counts of theft in relation to the misappropriation of approximately HK$6.9 million from clients.

Comment

Readers are reminded that a licensed person is under a duty to abide by the General Principles of the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission (Code of Conduct).  Paragraph 7.1 of the Fit and Proper Guidelines provides that a person may not be fit and proper if that person was found to be of poor reputation, character or reliability, lacking in financial integrity, or dishonest, which may be evidenced by that person’s being found by a court for fraud, dishonesty, misfeasance or other market-related crimes, or even by the SFC’s findings in the absence of an unfavourable court’s finding.

For details, please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/enforcement-news/doc?refNo=14PR129

10.  SFC suspends Ho Siu Po’s licence for seven months

On 20 October 2014, the SFC suspended the license of Mr. Ho Siu Po for seven months from 16 October 2014 to 15 May 2015.

Background

The SFC found that between 2011 and April 2013, Ho, who was a licensed representative of DBS Vickers (Hong Kong) Limited (DBS):

  • conducted transactions in client accounts on a discretionary basis; and
  • accepted cash deposits directly from a client and in turn made seven deposits to DBS’ account on behalf of the client.

Ho’s conduct was in breach of DBS’ internal policies, which prohibited staff from exercising discretionary authority for clients and receiving cash deposits directly from clients. These policies are designed to protect DBS operations and its clients from financial loss arising from improper conduct.

The SFC concluded that Ho has not met the standards required of him under the Code of Conduct as he failed to act with due skill, care and diligence in performing his duties as a licensed representative. As such, Ho’s fitness and properness was called into question.

In deciding the sanction, the SFC took into account all relevant circumstances, including:

  • Ho’s conduct demonstrates his disregard for the Code of Conduct and DBS’ internal control policies; and
  • Ho’s conduct exposed DBS to potential regulatory and compliance risk

Comment

Licensed individuals or corporations should note that pursuant to General Principle 2 of the Code of Conduct states that “in conducting its business activities, a licensed or registered person should act with due skill, care and diligence, in the best interests of its clients and integrity of the market”. To ensure this level of diligence, licensed corporations should, according to paragraph 4.3 of the Code of Conduct, “have internal control procedures and financial operational capabilities which can be reasonably expected to protect its operations, its clients and other licensed or registered persons from financial loss arising from theft, fraud and other dishonest acts, professional misconduct or omissions”. It is important for readers to comply with these provisions because infringement may reflect negatively on their fitness and properness and result in fines, or suspension or revocation of their licence to carry out regulated activities.For details, please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR128

The article is for general information purpose only and is not intended to constitute legal or other professional advice.

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Newsletter – September 2014

Newsletter – September 2014

  1. SFC commences proceedings against CITIC, its former chairman and executive directors
  2. SFC suspends Eric Shum Kam Chi for three years for sponsor failures
  3. SFC publishes annual review of the Stock Exchange of Hong Kong’s performance in regulating listing matters
  4. SFC publishes consultation conclusions on amendments to professional investor regime and further consults on client agreement requirements
  5. Court convicts unlicensed investment portfolio manager

1.  SFC commences proceedings against CITIC, its former chairman and executive directors

On 11 September 2014, the Securities and Futures Commission (“SFC”) has instituted proceedings in both the Court of First Instance (“CFI”) and the Market Misconduct Tribunal (“MMT”) against CITIC Limited (“CITIC”), formerly known as CITIC Pacific Limited, and five of its former executive directors, namely chairman Mr Larry Yung Chi Kin, managing director Mr Henry Fan Hung Ling, deputy managing directors Mr Leslie Chang Li Hsien, Mr Peter Lee Chung Hing, and executive director Mr Chau Chi Yin (“the five directors”).

The allegations

The SFC alleged that CITIC and the five directors engaged in market misconduct involving disclosure of false or misleading information on CITIC’s financial position arising from the massive losses incurred by CITIC over its investment in leveraged foreign exchange contracts in 2008 contrary to sections 227 or 298 of the Securities and Futures Ordinance (“SFO”). Both market misconduct provisions prohibit the distribution of materially false or misleading information that is likely to induce another person to subscribe for or buy securities or is likely to have a price effect on the company’s securities.

According to the SFC, CITIC issued a circular on 12 September 2008 that contained a false or misleading statement about its financial position (“the Circular”). The Circular was published on the Stock Exchange of Hong Kong Limited (“SEHK”) listed company announcement system on the Hong Kong Exchanges and Clearing Limited (“HKEx”) website on 12 September after market close, and was distributed to its shareholders on 16 September 2008. It concerned an unrelated transaction and disclosed that “the Directors are not aware of any adverse material change in the financial or trading position of the Group since 31 September 2007”. However, in a market announcement on 20 October 2008, CITIC disclosed that it suffered a massive realised and mark to market loss up to that date arising from a number of leveraged foreign exchange contracts which CITIC had entered into to manage currency risk of its Australian iron ore mining project exposure (“the Profit Warning”). The SFC therefore alleges that the five directors were aware of the huge financial exposure arising from those contracts on 7 September 2008, before the Circular was issued.

The prices of CITIC shares, which were suspended from trading on 20 October 2008 before the Profit Warning, fell 55% from HK$14.52 to close at HK$6.52 on 21 October 2008 when trading resumed.

Relief sought

The SFC is seeking restoration or compensation orders under section 213 of the SFO in the Court of First Instance to compensate or restore the pre-transaction positions of up to 4,500 investors who purchased CITIC shares between the date on which the SFC alleges the false or misleading information was announced and the date on which the true financial position was disclosed. The SFC is also seeking for CITIC and the five directors to be sanctioned by the MMT.

The amount that CITIC may be required to pay will need to be the subject of assessment by the CFI if liability is established.  It may depend on variables such as the total purchases during the relevant period, the purchaser’s acquisition price, sale price, or whether the purchaser continues to hold shares.

Comment

Under the market misconduct provisions of the SFO, licensed persons are prohibited from distributing materially false or misleading information that is likely to induce another person to subscribe for or buy securities or is likely to materially affect the price on the relevant securities. It is therefore important that licensed individuals and ensure at all times that promulgated information is accurate.

If a licensed person is found guilty of market misconduct provisions, he may thus not be considered fit and proper to continue being licensed. Pursuant to Paragraph 7.1 of the Fit and Proper Guidelines, a person may not be fit and proper if that person was found to be of poor reputation, character or reliability, lacking in financial integrity, or dishonest, which may be evidenced by that person’s being found by a court for fraud, dishonesty, misfeasance or other market-related crimes, or even by the SFC’s findings in the absence of an unfavourable court’s finding.

Readers should also note that this case will be very significant in establishing precedent governing the calculation of what may be required to restore a shareholder who has traded in a market affected by false or misleading information.

For details, please refer to the SFC articles:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR108

2.  SFC suspends Eric Shum Kam Chi for three years for sponsor failures

On 16 September 2014, the SFC suspended Mr Eric Shum Kam Chi (“Shum”) as a representative in all regulated activities and withdrawn approval for him to act as a responsible officer for three years from 15 September 2014 to 14 September 2017 for serious deficiencies in the sponsor work relating to the listing of Sino-Life Group Limited (“Sino-Life”) on the Growth Enterprise Market (“GEM”) of the SEHK. Mr Shum was previously a responsible officer and sponsor principal of Sun Hung Kai International Limited (“Sun Hung Kai International”) which acted as the sole sponsor for Sino-Life.

Background

On 27 January 2014, the Securities and Futures Appeals Tribunal (“SFAT”) affirmed the decision of the SFC to sanction Sun Hung Kai International. It took disciplinary action by reprimanding the company, fining it HK$12 million, and suspending its licence to provide advisory service on corporate finance for one year.

An SFC investigation revealed that Sun Hung Kai International had failed to conduct proper due diligence between October 2007 and September 2009 on Sino-Life’s business in relation to a number of material issues, and had placed undue reliance on the work delegated to external experts.

It was discovered that Sun Hung Kai International’s regulatory breaches were attributable to Shum who failed to discharge his duties as its senior management. The SFC found that as head of the firm’s transaction team, Shum had failed to:

  • assess the accuracy and the completeness of the information submitted by Sino-Life to demonstrate that it had satisfied the financial requirements to list on the GEM;
  • ascertain the existence of various encumbrances on the title of a major business deal of Sino-Life in Taiwan;
  • properly assess the business of Sino-Life’s wholly-owned subsidiary in Taiwan;
  • ensure true, accurate and complete disclosure was made to the SEHK and in Sino Life’s Prospectus and sponsor declaration; and
  • keep proper books and records in relation to the sponsor work conducted.

Shum originally sought to review the SFC’s decision at the SFAT, but withdrew his application before the SFAT hearing.

The Penalty

In deciding the penalty, the SFC took into account:

  • the fact that although Shum had knowledge of the fact that Sun Hung Kai International was selective in its disclosure to the SEHK during the listing process, he still signed the sponsor declaration announcing that all information submitted to the SEHK was true, accurate and complete to his knowledge; and
  • Shum’s otherwise clean disciplinary record.

Comment

In failing to discharge his duties as senior management, Shum had breached the regulatory requirements under the Code of Conduct, which requires a licensed individual to exercise due skill, care and diligence (General Principle 2), ensure the maintenance of appropriate standards of conduct and adherence to proper procedures (General Principle 9) and diligently supervise subordinates and sponsor work undertaken by the firm (Paragraph 4.2). This reflects negatively on an individual’s fitness and properness to be licensed, under Paragraph 7.1 of the Fit and Proper Guidelines and could lead to serious consequences such as fines, suspension and revocation of a SFC licence. Readers should therefore note that consistently reviewing internal controls and procedures is extremely important to maintain a high standard of diligence and integrity in order to avoid breaching regulatory requirements particularly those relating to responsible officer.

For details please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR110

3.  SFC publishes annual review of the Stock Exchange of Hong Kong’s performance in regulating listing matters

On 19 September 2014, the SFC published its annual review of the SEHK’s performance in its regulation of listing matters during 2013

In Government’s Consultation Conclusions on Proposals to Enhance the Regulation of Listing published in March 2004, the Government recommended that the SFC should prepare annual reports on its reviews regarding SEHK’s performance of its listing functions.

In this year’s annual report, the SFC found that the operational procedures and decision-making processes reviewed were appropriate in enabling the SEHK to discharge its statutory obligations in maintaining an orderly, informed and fair market. The SFC also identified certain areas for the SEHK to focus on in enhancing its performance.

For full report, please visit:

http://www.sfc.hk/web/files/ER/Reports/report_HKEx_%20audit_2014_EN.pdf

For details please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR111

4.  SFC publishes consultation conclusions on amendments to professional investor regime and further consults on client agreement requirements

On 25 September 2014, the SFC released consultation conclusions on the proposed amendments to the professional investor regime and launched a further consultation on client agreement requirements

Background

On 15 May 2013, the SFC issued a consultation paper on proposed amendments to the professional investor regime and the client agreement requirements. After reviewing all the comments received during the consultation, the SFC has decided to proceed with the proposal not to allow intermediaries when serving individual professional investors to be exempt from the suitability requirement and other fundamental requirements that have a significant bearing on investor protection under the Code of Conduct for Persons Licensed by or Registered with the SFC (the “Code”).

The Suitability Requirement

The suitability requirement is the pillar of the Code and ensures the suitability of a recommendation or solicitation for a client is reasonable in all circumstances. The other fundamental requirements inherently linked with the suitability requirement or that have significant bearing on the Code include, among other things, the need to disclose certain transaction related information, the need to enter into a written agreement and the provision of relevant risk disclosure statements. Mr Ashley Alder, the SFC’s Chief Executive Officer, said that in arriving at a balanced outcome, the SFC considered the views of respondents carefully to ensure that individual investors who are classified as professional investors are adequately protected.

Other features

Other features of the revised professional investor regime include:

  • individual professional investors and corporate professional investors will continue to be allowed to participate in private placement activities;
  • the minimum monetary threshold for qualifying as individual professional investors and corporate professional investors will be maintained at the current levels (under the Securities and Futures (Professional Investor) Rules, the minimum portfolio threshold for individual professional investors is HK$8 million and the minimum total assets threshold for corporate professional investor is HK$40 million); and
  • a principles-based criteria that will replace the specific tests now used to assess whether exemptions to the Code requirements apply when intermediaries serve corporate professional investors. For the purposes of clarification, the SFC will publish frequently-asked-questions on the assessment criteria, which will apply to investment vehicles owned by individual professional investor and by family trusts. If investment vehicles can satisfy the assessment criteria, intermediaries serving them can be exempt from the suitability requirement.

Implementation and Further Consultation

The amendments relating to the professional investors regime will become effective on 25 March 2016, and a separate internal study of the suitability requirement, including the gathering of industry views, will be conducted in due course.

Furthermore, in response to market feedback, the SFC has modified its proposals on client agreement requirements and now seeks to further consult the public on the wording of a proposed new clause to be incorporated into all client agreement as a contractual term. The SFC will provide intermediaries with further guidance on the description of actual services in their client agreements, and proceed with the proposed Code amendments that provide that client agreements should not contain terms which are inconsistent with the obligations under the Code or mis-describe the actual services provided to the client. All proposals relating to client agreement requirements will take effect on a date specified when the further public consultation of the proposed new clause is concluded.

The SFC is inviting the public to submit their comments on or before 24 December 2014 in relation to the proposed new clause. Written comments may be sent via the SFC website (www.sfc.hk), by email to [email protected], by post or by fax to 2284 4460.

Comments

In preparation for the new regime, readers may submit their comments regarding both the suitability requirement and the proposed new clause. Intermediaries may find it useful to adopt the SFC’s suggestions regarding client agreements to ensure that they remain in compliance with their obligations under the Code and do not provide misleading information to the client. In particular, the revised regime’s new principle-based criteria may be particularly useful to intermediaries with investment vehicle clients, to assess whether they may be exempted from the suitability requirement.

To see the full consultation paper, please see:

http://www.sfc.hk/edistributionWeb/gateway/EN/consultation/openFile?refNo=13CP1

For further details, please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR113

5.  Court convicts unlicensed investment portfolio manager

On 26 September 2014, the Eastern Magistrates’ Court convicted Mr Tam Kwok Pui of providing asset management service without obtaining a licence from the SFC

Background

An investigation by the SFC found that between 1 March 2011 and 31 August 2012, Tam, whilst unlicensed, recruited a client through an investment seminar he organised and provided the client with asset management services which included managing a portfolio of securities and futures contracts for the client. The services he provided required him to satisfy the SFC that he was fit, proper and competent in asset management. He never sought SFC’s approval and was thus not authorized to provide these services.

Sanction

Tam pleaded guilty and was fined HK$10,000 for the offence. The court also ordered him to pay the SFC’s investigation costs.

Comment

Pursuant to section 114 of the SFO, it is an offence to carry on a business of providing asset management services or other regulated activities without a licence from the SFC. To obtain a Type 9 licence for asset management, an individual must prove that he is fit and proper in compliance with the Fit and Proper Guidelines, and has the requisite competence to provide the relevant regulated services. To secure SFC licences, prospective licensees may seek advice from independent compliance consultants such as CompliancePlus.

Investors may also check the SFC’s Public Register of Licensed Persons and Registered Institution on the SFC website (www.sfc.hk) to ensure that people who provide asset management services are properly licensed.

For details, please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR114

The article is for general information purpose only and is not intended to constitute legal or other professional advice.

Receipt of this newsletter indicates that CompliancePlus has been using your email address to market to you the compliance services that CompliancePlus is able to provide you.

CompliancePlus provides compliance consulting services to financial companies, hedge fund managers and individuals. Our dedicated team of compliance officers has years of professional experience equipped with in-depth knowledge of both functional and compliance experience in managing and minimizing regulatory, operational and reputational risks. By partnering with CompliancePlus, our clients gain access to compliance solutions that they can trust and the latest knowledge of regulatory policies and procedures.

For enquiries, please email: [email protected] or call at (852) 3487-6903.

To subscribe, update your email address or unsubscribe, please email [email protected] 

Newsletter – August 2014

Newsletter – August 2014

  1. SFC bans Manesh Vijaykumar Samtani for life
  2. SFC bans former broker Chan Yuk Hing for three years for false trading
  3. Market manipulator fined and sentenced to community service
  4. SFC suspends Chan Hung Nin for 15 months for unauthorised trading in client’s account
  5. SFC reprimands and fines Winnie Pang Wai Yan for negligence in handling client’s trade orders
  6. SFC commences Market Misconduct Tribunal proceedings against former CEO of Water Oasis Group Limited for alleged insider dealing
  7. SFC reprimands and fines Hung Lai Ping for manager and supervisory failures
  8. SFC issues first-quarter report
  9. SFC issues supplemental consultation conclusions on regulation of IPO sponsors
  10. Roger Tsui Chi Fung banned for providing false information to SFC

1. SFC bans Manesh Vijaykumar Samtani for life

On  4 August 2014, the Securities and Futures Commission (“SFC”)  banned Mr. Manesh Vijaykumar Samtani from re-entering the industry for life.

Background

Mr. Samtani was licensed as a representative to carry on Type 1 (dealing in securities), Type 2 (dealing in futures contracts) and Type 4 (advising on securities) regulated activities under the Securities and Futures Ordinance (“SFO”) and was accredited to KGI Asia Limited from 20 March 2008 to 28 November 2012 and to KGI Futures (Hong Kong) Limited from 11 August 2008 to 28 November 2012.  Mr. Samtani is currently not a licensed person.

According to the findings of SFC, from July 2011 to November 2012, Mr. Samtani provided six clients with false screenshots of KGI’s trading platform and other false information to conceal trading losses and mislead the clients on the transactions conducted in their accounts and their actual account balances. The SFC also found that Mr. Samtani failed to follow his client’s specific instructions on the handling of their accounts and conducted transactions in their accounts contrary to their express instructions without their authorization.

Disciplinary action

Mr. Samtani provided false screenshots and other false information to the clients of his then employers, KGI, to mislead them as to the transactions in their accounts and the true net asset value of their accounts, in breach of the General Principle 1 of the Code of Conduct (honesty and fairness).

As regards conducting unauthorised transactions in the clients’ accounts, Mr. Samtani was in breach of paragraph 7.1 of the Code of Conduct (authorisation and operation of a discretionary account).

The SFC decides that Mr. Samtani is not a fit and proper person as a result of his misconducts; specifically the SFC took into account that Mr. Samtani’s conduct was dishonest, that he had abused the trust and confidence his clients and employers placed in him, and that his actions seriously jeopardised his clients’ interests and resulted in financial losses of more than HK$8 million to the clients.

Comment

Readers are once again reminded that a licensed person is under a duty to abide by the General Principles of the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission (Code of Conduct).  Paragraph 7.1 of the Fit and Proper Guidelines provides that a person may not be fit and proper if that person was found to be of poor reputation, character or reliability, lacking in financial integrity, or dishonest, which may be evidenced by that person’s being found by a court for fraud, dishonesty, misfeasance or other market-related crimes, or even by the SFC’s findings in the absence of an unfavourable court’s finding.

Readers should take note that safe custody of client assets is a fundamental obligation of licensed corporations. It is also the duty of a licensed person to abide by the Code of Conduct. A licensed person should exercise due skill, care and diligence and to act in the best interests of its clients.  The SFC also reminds against the disclosure of passwords to the online trading accounts to anyone.

For details, please refer to the SFC articles:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR96

2. SFC bans former broker Chan Yuk Hing for three years for false trading

On 4 August 2014, the SFC banned Mr. Chan Yuk Hing, a former broker, from re-entering the industry for three years from 1 August 2014 to 31 July 2017.

Background

On 29 June 2012, the Eastern Magistrates Court found Chan and his client, Mr. Paul Frederic Chane Yin, guilty of market manipulation in shares of Multifield International Holdings Limited (Multifield) in 2009. An SFC investigation found that through Chan, Chane purchased 50,000 Multifield shares at an average price of HK$0.2261 in the morning trading session of 23 November 2009. However, during the afternoon session, Chan asked Chane to buy Multifield shares at the best ask price which was HK$1.00 per share, four times the prevailing market price of HK$0.25, and suggested Chane to buy a single board lot of 2,000 shares. Chane agreed, and as a result, the price of Multifield shares rose four-fold to HK$1.00. Shortly before trading closed that day, Chane sold the 50,000 shares he had bought at an average price of HK$0.2261 for an average selling price of HK$0.4258.

Court Ruling

The Court held that there was no economically sensible reason for Chane to buy a single board lot at a price of four times the prevailing price. Therefore, it found that both Chan and Chane intended to create a false or misleading appearance of the price for Multifield shares to enable Chane to later sell his shares at an artificially inflated price.

On 13 July 2012, the Eastern Magistracy sentenced Chan and Chane to serve 80 hours and 100 hours of Community Service respectively. Chane was also fined HK$8,000, and both were ordered to pay investigation costs to the SFC. Subsequently, Chan and Chane’s appeals against their convictions were both dismissed in the Court of First Instance (“CFI”) on 13 January 2014.

The Ban

Consequently, the SFC has concluded that Chan has been guilty of misconduct and thus not fit and proper to be licensed. He was previously licensed under the SFO to carry on Type 1 (dealing in securities) regulated activity, and was accredited to KGI Asia Limited between January 2008 and August 2010.

Comment

Readers should take note that a genuine buyer in a market of genuine supply and demand is one who aims to purchase shares at the lowest possible price. By doing otherwise, their conduct would constitute false trading contrary to Section 295(1)(b) of the Securities and Futures Ordinance (“SFO”). This calls his or her fitness and properness into question, and could lead to his or her license being suspended.

For details please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR95

3. Market manipulator fined and sentenced to community service

On 7 August 2014, the Eastern Magistrates’ Court sentenced Mr. Wong Pok Wang to 180 hours of community service and fined him HK$16,320 for manipulating the indicative equilibrium price (“IEP”) of derivative warrants and callable bull/bear contracts (“CBBCs”) during the Pre-opening Sessions.

Background

On 22 July 2014, the Eastern Magistrates’ Court found Wong guilty of 13 counts of false trading in eight derivative warrants and CBBCs between 15 October 2010 and 14 February 2011, following an allegation by the SFC. The SFC alleged that Wong created price ranges for the final IEP for the aforementioned derivative warrants and CBBCs by placing high priced at-auction limit buy orders of small sizes (usually a single board lot) and low priced at-auction limit sell orders (of significant sizes) during the Order Input Period. An IEP is the price during the Pre-opening Sessions at which the maximum number of shares could be traded if order matching occurred at the same time, and is calculated and determined by the orders inputted by investors during the Pre-opening Sessions. Within five seconds before the close of the Pre-order Matching Period, Wong placed at-auction buy orders (of relatively large sizes) for derivative warrants or CBBCs, pushing the final IEPs to the upper end of the price range by 9% to 39% on nine occasions. In this way, Wong sold the derivative warrants and CBBCs on a net basis at prices that were artificially high and profited from the trades. The Court held that Wong’s order placing activities made no economic sense and that he obtained illicit gains of HK$16,320 from his manipulative trades in the derivative warrants and CBBCs.

Sentencing

On 7 August 2014, the Eastern Magistrates sentenced Wong to 180 hours of community service and fined him HK$16,320. The fine imposed is equivalent to the profit made by Wong from selling the derivative warrants and CBBCs at prices artificially pushed higher by his manipulative orders.

Comment

This case illustrates the gravity of potential sentences for offences of false trading, contrary to Section 295 of the SFO. In addition to calling the individual’s fitness and properness into question, persons who commit these offences could be liable on conviction on indictment to a fine of up to HK$10,000,000 and imprisonment for up to 10 years, or on summary conviction, a fine of HK$1,000,000 and to imprisonment for up to 3 years. Furthermore, once convicted, the individual may be subject to disciplinary actions of the SFC under Section 195 of the SFO, by reason of being convicted of an offence with impugns on the fitness and properness of the licensed person to remain licensed. Readers should therefore be carefully ensure that their actions are not in breach of those provisions.

For details please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR97

4. SFC suspends Chan Hung Nin for 15 months for unauthorised trading in client’s account

The SFC suspended Mr. Chan Hung Nin for 15 months from 8 August 2014 until 7 November 2015 for breaching the Code of Conduct.

Background

Chan was licensed under the SFO to carry on Type 1 (dealing in securities) and Type 2 (dealing in futures contracts) regulated activities, and is accredited to Celestial Limited and Celestial Commodities Limited (“Celestial”).

The disciplinary action follows an investigation stemmed from a complaint by the client (“Client”), who alleged, inter alia, that Chan conducted unauthorised trades in his account (“Account”). The Account traded actively in stocks and CBBCs between 2 April 2011 and 21 August 2012 without the Client’s specific authorisation. According to Celestial’s records, the Client never signed a Power of Attorney to authorise Chan or any other third party to operate the Account.

When conducting periodic checks on trades without telephone recordings of order placing and confirmation, Celestial identified six such instances in the Account. On four instances where the Client could be reached, the Client falsely represented to Celestial that he had placed the relevant orders by calling Chan’s mobile phone. The SFC found that Chan had asked the Client to make such false representations to Celestial in order to conceal the fact that he was operating the account on a discretionary basis, and the fact that the Client did so suggests that he had impliedly authorised Chan to conduct the trades in question.

The Sanction

In deciding the sanction, the SFC took into account all the relevant circumstances including:

  • Chan’s act of coaching the client to lie is deliberate and dishonest;
  • Chan is still licensed and serving clients;
  • Chan had more than 20 years of experience in the industry at the time of his misconduct; and
  • Chan has an otherwise clean disciplinary record.

Comment

Readers should note that it is the duty of a licensed person to abide by the General Principles of the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission (“Code of Conduct”). If an individual breaches the requirements on discretionary accounts as set out in Paragraph 7.1 of the Code of Conduct, the SFC could conclude that the individual is not fit and proper to be licensed. Licensed corporations should also be aware that, pursuant to the Code of Conduct, tape records must be kept for a minimum period of at least 6 months.

The SFC’s disciplinary actions against Chan are empowered by Sections 194 to 196 of the SFO, which provides that the license of a regulated person may be suspended if he is found to be guilty of misconduct or is not fit and proper to be or to remain the same type of regulated person. As in the present case, the sanction imposed may be aggravated by the individual’s experience in the industry, since it implies that they should have been aware of the aforementioned requirements.

This may be aggravated by the individual’s experience in the industry, which implies that they should have been aware of the aforementioned requirements, thus attracting harsher sanctions.

For details please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR98

5. SFC reprimands and fines Winnie Pang Wai Yan for negligence in handling client’s trade orders

On 14 August 2014,  the Securities and Futures Commission (SFC) reported that Ms Winnie Pang Wai Yan had been publicly reprimanded and fined HK$120,000 for negligence in handling a client’s trade orders.

Background

Pang has been registered as a relevant individual with the Hong Kong Monetary Authority and engaged by UBS AG to carry on Type 1 (dealing in securities) regulated activity since 20 February 2006.

Pang was a client advisor assistant at UBS AG at the material time. In December 2009, a client at UBS AG wanted to sell his shares in a stock to an identified buyer at agreed amounts and prices through manual cross trades. Instead of placing cross trades as initially instructed by the client, Pang coordinated with the buyer to conduct a series of on-exchange matched trades between 3 and 8 December 2009.

Negligence

Under the Securities and Futures Ordinance (“SFO”), market misconduct of false trading in the form of matched orders is strictly prohibited.

The SFC found that, in handling the client’s orders, Pang did not exercise due care, skill and diligence in the best interests of the client by failure to make enquiries in relation to the relevant transactions to ascertain the client’s intention, report the matter to the Compliance Department of UBS AG, and refrain from acting on the client’s instructions before she was satisfied that the orders and their execution did not affect the best interests of the integrity of the market.  Pang thus was in breach of General Principle 2 of the Code of Conduct.

The SFC considers that Pang’s failures called into question her fitness and properness as a registered person.  In particular, the SFC took into account Pang’s financial situation, that Pang did not make any personal benefit out of the transactions in question, that there is insufficient evidence to prove to the requisite standard that the matched trades were carried out with manipulative intent, that the matched trades had minimal impact on the nominal price of the stock, that Pang co-operated with the SFC in resolving the disciplinary action and that Pang has an otherwise clean disciplinary record with the SFC.

Comment

Readers should take note that pursuant to section 274(5)(b) and section 295(5)(b) of the SFO, a person may have committed the offence of false trading or be regarded as having engaged in the market misconduct of false trading if a person offers to sell securities at a price that is substantially the same as the price at which he has made or proposes to make, or he knows an associate of his has made or proposes to make, an offer to buy substantially the same number of securities, unless the transaction in question is an off-market transaction. This type of trading is commonly known as matched orders.

For details please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR101

6. SFC commences Market Misconduct Tribunal proceedings against former CEO of Water Oasis Group Limited for alleged insider dealing

On 14 August 2014, the Securities and Futures Commission (SFC) reported that proceedings had been commenced in the Market Misconduct Tribunal (MW) against Ms Salina Yu  Lai Si, the former Chief Executive Officer of Water Oasis Group Limited (Water Oasis), for alleged insider dealing in Water Oasis shares.

Background

Water Oasis was listed on the Stock Exchange of Hong Kong Limited in March 2002, which principally distributes skincare products in Hong Kong, Macau, Taiwan, Singapore and the Mainland and operates beauty salons, spas and medical beauty centres in Hong Kong and the Mainland.  At the material time, Ms Yu was the Chief Executive Officer, a substantial shareholder and an executive director of Water Oasis.  Ms Yu resigned as Water Oasis’ Chief Executive Officer and executive director on 6 July 2012.

SFC’s allegation

The SFC alleges that on 20 January 2012 at around 10 am, H2O Plus LLC (H2o) informed Ms Yu that it would terminate Water Oasis’ exclusive distributorship in H2O’s products in the Mainland and Taiwan with immediate effect and shortly after being notified by H2O, Ms Yu proceeded to sell all her Water Oasis shares in one of her securities trading accounts on the same day prior to an announcement by Water Oasis, and avoided a loss of around of around HK$281,346. Subsequently on 20 January 2012 at 10:13 pm, Water Oasis issued an announcement about the termination of the exclusive distribution rights in H2O products.

The SFC also alleges that both the news about the termination of the exclusive distribution rights and the significance of the contribution of H2O’s operations in the Mainland and Taiwan to the net profit of Water Oasis were not publicly known and were material to Water Oasis’s share price. This allegation is backed up by the fact that on 26 January 2012, the first trading day after Water Oasis made the announcement on 20 January 2012, its share price dropped by 14.08% to close at HK$1.22 and on the same day, the Hang Send Index rose 329 points or 1.64% to the level of 20,439.

Comment

Readers, especially for those that are privy  to secret price-sensitive information,  are reminded that information of this sort must be handled with utmost care.  Acquisition of or disposal of relevant securities immediately after obtaining such information should be avoided.  In case of doubt, readers should readily seek professional advice on regulatory and legal compliance.

For details, please refer to the SFC articles:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR100

7. SFC reprimands and fines Hung Lai Ping for manager and supervisory failures

The Securities and Futures Commission (SFC) has issued a reprimand to Ms Hung Lai Ping, a former responsible officer of Delta Asia Securities Limited (Delta Asia), and fined her HK$150,000 for managerial and supervisory failures.

Background

Delta Asia is licensed under the Securities and Futures Ordinance (SFO) to carry on Type 1 (dealing in securities), Type 3 (leveraged foreign exchange trading) and Type 4 (advising on securities) regulated activities.  Hung is licensed under the SFO to carry on Type 4 (advising on securities) and Type 9 (asset management) regulated activities. During the period from April 2007 to June 2012, Hung was accredited to Delta Asia and approved to act as its responsible officer.

Findings of the SFC

The SFC found that during the period from January 2010 to February 2013, Delta Asia used shares belonging to clients and held in segregated client accounts at the Central Clearing and Settlement System (CCASS) to settle transactions for its other clients who did not have sufficient shares in their accounts to discharge their respective settlement obligations on the settlement date.  This was done without the consent or authorisation of the clients whose shares were used for settlement in contravention of the Securities and Futures (Client Securities) Rules on 36 occasions during the period.  Sections 6 and 10 of the Securities and Futures (Client Securities) Rules respectively specifies the circumstances in which intermediaries may withdraw or otherwise deal with client securities received or held on behalf of clients and requires intermediaries to take reasonable steps to ensure that client securities are not deposited, transferred, etc, except in the manner specified in the rules.

In addition the SFC found that on two occasions during the period, Delta Asia had transferred shares belonging to clients and held in the CCASS segregated client accounts to its CCASS clearing account, with a view to settling the transactions for Delta Asia’s other clients who did not have sufficient shares in their accounts to discharge their respective settlement obligations on the settlement date. However, the transferred shares were eventually not sent to the Hong Kong Securities Clearing Company Limited for settlement purpose as a result of the netting of Delta Asia’s positions in the same security on the same day. This occurred without the consent or authorization of the clients whose shares were transferred and were in breach of the Securities and Futures (Client Securities) Rules notwithstanding that the transferred shares were eventually not used for settlement purpose.

The SFC also found that Delta Asia failed to implement proper controls to safeguard client securities and to supervise the staff of Delta Asia in discharging its settlement function, thus allowing the unauthorized transfers of client securities from Delta Asia’s CCASS segregated client accounts to its CCASS clearing account to have gone unchecked for more than three years.

Ms Hung’s negligence

The SFC is of the view that Delta Asia’s settlement malpractice and failures were attributable to negligence on the part of Hung.

Hung was responsible for overseeing the compliance function and all front and back office operations of Delta Asia, including its settlement functions. In her capacity as a responsible officer and a member of senior management, Hung bore primary responsibility for ensuring the maintenance of appropriate standards of conduct and adherence to proper procedures by Delta Asia, for properly managing the risks associated with the business of Delta Asia, and for supervising diligently persons employed or appointed by Delta Asia to conduct business on its behalf.

Hung has failed to fulfil such responsibility and her failure has manifested itself in the failures that Delta Asia, under her management, has displayed. As a result, the SFC held that Hung had breached General Principles 2, 9 and paragraphs 4.2 and 14.1 of the Code of Conduct. In deciding the sanctions, the SFC took into account that Hung has accepted the SFC’s findings.

Comment

The SFC stresses once again that safe custody of client assets is a fundamental obligation of licensed corporations. Any transgression of this obligation, even if the relevant clients are made whole again, cannot be tolerated.

The SFC has also taken disciplinary action against Delta Asia as a result of the same investigation. This illustrates that the relevant institution alongside the responsible officers/individuals will be penalised for the failure to put sufficient internal control in place.  To preserve the public image of the institution, readers should be noted that it is not sufficient that institutions solely rely on the ethics of employees, and a system of internal control is of equal importance.  If necessary, professional advice on compliance issues should be sought without delay.

For details, please refer to the SFC articles:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR102

 

8. SFC issues first-quarter report

On 20 August 2014, the SFC published its Quarterly Report summarising key developments from April to June 2014.

Regulatory update

Of particular significance are the Securities and Futures (Amendment) Ordinance 2014, gazetted in April, which established a framework for the regulation of the over-the-counter derivatives market, and a circular issued by the SFC which set out a guidance on robust internal product approval and design processes for investment products. To encourage more meaningful disclosure, the SFC also requested listed companies to provide specific numbers in their profit alerts and warnings wherever possible.

Shanghai-Hong Kong Stock Connect Pilot Scheme

On 10 April 2014, the China Securities Regulatory Commission and the SFC approved the development of a pilot programme (the “Scheme”) for establishing mutual stock market access between Mainland China and Hong Kong. When launched, the Scheme will operate between the Shanghai Stock Exchange (“SSE”), China Securities Depository and Clearing Corporation Limited (“ChinaClear”), Hong Kong Securities Clearing Company Limited (“HKSCC”).

Enforcement

In the first quarter, the SFC successfully prosecuted 10 individuals or corporations for market misconduct and disciplined 17 licensees, with fines totalling over HK$39 million.

The SFC also reprimanded ICBC International Capital Limited (ICBCI) and fined them a total of HK$25 million regarding their role in an initial public offering.  ICBCI failed, inter alia, to conduct customer due diligence and perform ongoing scrutiny of accounts of certain placees referred by Powerlong (Placees) to ensure that the transactions being conducted were consistent with its knowledge of the Placees, taking into account their source of funds, and turned a blind eye to the lack of independence of Placees for the subscription of Powerlong’s shares allotted through its listing on the Stock Exchange of Hong Kong Limited.

The SFC also obtained a judgment which ordered Ernst & Young Hong Kong to produce to the SFC specified accounting record relating to its work as the reporting accountant and auditor for Standard Water Limited.

For further details please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR103

For full report please see: http://www.sfc.hk/web/files/ER/Reports/QR/201404-06/Eng/00_Eng%20Full.pdf

 

9. SFC issues supplemental consultation conclusions on regulation of IPO sponsors

On 22 August 2014, the Securities and Futures Commission (SFC) released supplemental consultation conclusions on prospectus liability, reaffirming that IPO sponsors are subject to existing statutory civil and criminal liability for defective prospectuses.

Initial consultation conclusions

On 9 May 2012, the SFC issued a Consultation Paper on the Regulation of Sponsors, which contained a number of proposals designed to enhance Hong Kong’s sponsor regulatory regime and consolidate all key sponsor obligations in the Code of Conduct for Persons Licensed by or Registered with the SFC (“Code of Conduct”). The Paper invited comments on two broad areas: (i) the regulatory regime for sponsors conduct; and (ii) legislative amendments to clarify sponsors’ civil and criminal liability under existing legislation concerning misstatements in prospectuses. The consultation period ended on 31 July 2012 and 71 responses were received. The SFC released Consultation Conclusions on the Regulation of IPO Sponsors on 12 December 2012. The Conclusions were made in response to concerns expressed in the Consultation Paper that standards of sponsor work have fallen short of expectations. For that reason, the SFC consulted the market on proposals aimed at improving market confidence and the overall quality of sponsor work.

In relation to prospectus liability of sponsors, the SFC concluded in its initial consultation that although there was a strong argument that sponsors were already covered by the relevant legislation, given the lack of relevant case law and varying views expressed by sponsors and others, it may be helpful to specify sponsors in the Companies (Winding Up and Miscellaneous Provisions) Ordinance) (“CWUMPO”) as a category of persons who authorise the issue of prospectuses. Amending Sections 40 and 342F of CWUMPO would make it explicitly clear to all market participants that sponsors are potentially liable under the Ordinance.

However, it remained unclear whether or not such an amendment was necessary, since sponsors were already persons who authorise the issue of a prospectus within the meaning of the CWUMPO (Sections 40(1)(d), 40A(1) and 342F(1)), and are therefore potentially liable.

Supplemental consultation conclusions

Since the release of the Consultation Conclusions, the SFC has engaged with industry participants and other interested parties in further consultations on the proposed legislative amendments. The supplemental consultation conclusions sets out the SFC’s position on the need for further legislative amendments following these consultations and further analysis.

In this subsequent conclusion, the SFC reaffirmed its view that its original position in the Consultation Paper, namely that sponsors are already covered under the existing law, is correct. Thus, sponsors are among those persons who have potential statutory criminal and civil liability under the CWUMPO for untrue statements (including material omissions) in a prospectus. As such, the proposed legislative amendments in the initial consultation conclusions and Consultation Paper will not be pursued as they serve no purpose.

For further details please refer to:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR104

For full report please see:

http://www.sfc.hk/edistributionWeb/gateway/EN/consultation/openConclusionAppendix?refNo=12CP1&appendix=0

10. Roger Tsui Chi Fung banned for providing false information to SFC

The SFC has banned Mr. Roger Tsui Chi Fung, a former licensed representative, from re-entering the industry for nine months from 15 August 2014 to 14 May 2015.

Background

Tsui was licensed under the Securities and Futures Ordinance (“SFO”) to carry on Type 1 (dealing in securities), Type 2 (dealing in futures contracts), Type 4 (advising on securities), Type 5 (advising on futures contracts), Type 6 (advising on corporate finance), Type 7 (providing automated trading services) and Type 9 (asset management) regulated activities and was accredited to various licensed corporations between 2000 and 2011. He is currently not accredited to any licensed corporation.

Providing false or misleading information

On 15 Jan 2014, the Eastern Magistrates’ Court convicted Tsui after he pleaded guilty to two counts of providing false or misleading information to the SFC in his capacity as a SFC license holder. He was fined HK$8,000 and ordered to pay the SFC’s investigation costs.

The court heard that, on or around 29 January and 24 August 2009 respectively, Tsui had on each of the dates submitted to the SFC an annual licensing return. In each return, Tsui declared that during the relevant reporting periods, there was no change in the information about him that had been provided to the SFC, including information about his disciplinary record.

The declarations in the two annual returns were false or misleading as the SFC’s investigation revealed that the Financial Industry Regulatory Authority of the United States (“FINRA”) had disciplined Tsui and the sanction imposed on Tsui during the reporting periods was covered by both annual returns.

The sanction

As mentioned above, Sections 194 to 196 empower the SFC to suspend the license of a regulated person if he is found to be guilty of misconduct or not fit and proper to remain the same type of regulated person. The SFC has found that by providing false information regarding his disciplinary record, Tsui is not fit and proper to remain licensed. As such, he has been banned from re-entering the industry for nine months.

Comment

Under Section 384 of the SFO, it is a criminal offence to provide to a specified recipient (including the SFC) any information which is false or misleading in a material particular. This includes but is not limited to information regarding a licensee’s disciplinary record, and the annual return that the licensee is required to submit under Section 138(4) of the SFO. It is therefore important for licensed individuals to ensure that they provide accurate information to the SFC at all times, and failure to do so could result in the suspension or revocation of an SFC license.

For further details please see: http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR106

The article is for general information purpose only and is not intended to constitute legal or other professional advice.

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Newsletter – July 2014

Newsletter – July 2014

  1. Court froze HK$1.2 billion Hisense Kelon of shares in Greencool proceedings
  2. Joint HKMA-SFC consultation on mandatory reporting and related record keeping rules for OTC derivatives market
  3. SFC launched corporate regulation newsletter
  4. Ping An of China Securities (Hong Kong) Company Limited reprimanded and fined HK$6 million over internal control failures
  5. SFC revoked license of Yip Wan Fung and banned her for life
  6. SFC banned Fa Kwan Lun for 12 months
  7. SFC suspended Wu Li Jun for six months
  8. Hong Kong Fund management business continued to grow in 2013

1. Court froze HK$1.2 billion Hisense Kelon of shares in Greencool proceedings

On 18 July 2014, the Court of First Instance (CFI) granted an application by the Securities and Futures Commission (SFC) for an interim freezing order over a total of 107,290,000 shares in Hisense Kelon Electrical Holdings Limited (Hisense Kelon), up to a sum of HK$1.2 billion, which the SFC alleges is held for the benefit of Gu Chujun, the former chairman and chief executive officer of Greencool Technology Holdings Limited (Greencool).

Background and allegations

Greencool was listed on the Growth Enterprise Market of the Stock Exchange of Hong Kong Limited on 13 July 2000. On 1 August 2005, trading in Greencool shares was suspended and Greencool was subsequently delisted on 18 May 2007. On 5 March 2010, Greencool was struck off the register of non-Hong Kong companies by the Registrar of Companies of Hong Kong.

In June 2014, the SFC instituted proceedings in both the CFI and the Market Misconduct Tribunal (MMT) against former chairman and chief executive officer, Mr. Gu Chujun, and other senior executives of Greencool, alleging market misconduct involving grossly overstating the company’s financial accounts for the years ended 31 December 2000 to 2004, contravening section 277 of the Securities and Futures Ordinance (SFO).

The SFC further alleged that Gu directed the massive fraud and should be ordered to compensate the minority shareholders who were induced to acquire Greencool shares on the strength of the distorted financial results

Interim order

On 18 July , An interim injunction was granted by the CFI to preserve assets allegedly held for the benefit of Gu pending trial in the section 213 proceedings in which the SFC is seeking remedial orders for more than 1,300 minority shareholders who purchased Greencool shares during the period the SFC alleges Greencool’s disclosed financial position was grossly overstated.

Gu is prohibited from dealing in or disposing of any of those Hisense Kelon shares personally or through a nominee or agent unless he has already maintained within Hong Kong assets exceeding HK$1.2 billion and he only deals in those of his assets in excess of HK$1.2 billion.

The Hon. Mr. Justice A Chan also ordered Gu to disclose to the SFC, by an affidavit, all of his assets whether within or outside Hong Kong at a value of HK$50,000 or more within 14 days of the service of the order on him.

The SFC is seeking an interim order to freeze up to HK$1.59 billion of Hisense Kelon shares allegedly held by or on behalf of Gu. The order freezes those Hisense Kelon shares for up to HK$1.2 billion and the court has asked for more information on the estimation of both the sum that the MMT may order to be disgorged from Gu and the sum that the court may eventually order Gu to pay to the minority shareholders in these proceedings.

A return date of the interim injunction was fixed on 8 August 2014 when the court will review the interim injunction.

Comment

Readers are reminded that Sections 277 and 298 of the SFO prohibit the distribution of materially false or misleading information that is likely to induce another person to subscribe for or buy securities or deal in futures contracts. Both Sections 277 and 298 are market misconduct provisions.

Readers should also take note that under section 213 of SFO, the Court of First Instance may grant an interim injunction to freeze assets of any person who contravened the SFO on the application of the SFC.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR89

2. Joint HKMA-SFC consultation on mandatory reporting and related record keeping rules for OTC derivatives market

On 18 July 2014, the Hong Kong Monetary Authority (HKMA) and the Securities and Futures Commission (SFC) began a one-month consultation on the detailed requirements relating to the mandatory reporting and related record keeping obligations under the new over-the-counter (OTC) derivatives regime.

Background

In line with global efforts, the HKMA and SFC have been developing a regulatory regime for the OTC derivatives market in Hong Kong. Subsequent to two consultation exercises (in October 2011 and July 2012), the Securities and Futures (Amendment) Ordinance 2014 was enacted in April 2014. The new legislation, which has yet to come into effect, provides a framework for introducing mandatory reporting, clearing, trading and record keeping obligations in respect of OTC derivative transactions in Hong Kong.

The precise ambit of these obligations, and their related details, will be set out in rules to be made by the SFC with the HKMA’s consent and after consultation with the Financial Secretary. The consultation paper issued on 18 July is the first in a series of consultations on such obligations and details. It sets out the HKMA’s and SFC’s detailed proposals for the mandatory reporting and related record keeping obligations.

Following consultation, the proposed detailed requirements will be set out in subsidiary legislation to be made under the new regime.  The requirements aim to enhance financial market stability by increasing transparency in the OTC derivatives market. The proposals have been developed in line with similar reform efforts in other major financial markets, and with input from the industry.

The proposal

The proposal will cover six key main areas, these include:

  • which types of transactions will have to be reported
  • who will be subject to reporting and in what circumstances
  • what exemptions and reliefs may apply
  • reporting timeframes and applicable grace periods
  • the form, manner and contents of reports
  • related record keeping obligations

Consultation period

The consultation period will end on 18 August 2014. The joint consultation paper can be downloaded from the HKMA website or the SFC website. Interested parties are invited to submit their comments to the HKMA or the SFC on or before the deadline.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR88

Consultation paper on the Securities and Futures (OTC Derivative Transactions – Reporting and Record Keeping) Rules:

http://www.sfc.hk/edistributionWeb/gateway/EN/consultation/doc?refNo=14CP6

3. SFC launched corporate regulation newsletter

On 9 July 2014, the Securities and Futures Commission (SFC) published the first issue of its Corporate Regulation Newsletter as part of an initiative to improve the quality of disclosures by listed companies and listing applicants.

Corporate Regulation team

The SFC’s renewed emphasis on corporate behavior is coordinated by the new Corporate Regulation team, which leads the SFC’s oversight of listed companies from their IPOs onwards. Focusing on disclosure and corporate misconduct, the team works to identify behavior that is prejudicial to the interests of shareholders and the interest of the investing public.

Increase in the number of listed companies’ announcements

The SFC welcomes the increase in the number of listed companies’ announcements to the market since the introduction of the new statutory disclosure regime and it is now looking to shift the focus to making those announcements more meaningful, the newsletter relates. For example, profit alerts and warnings should be price-sensitive by definition, but in 2013 only 14% of such profit alerts and warnings resulted in share price movements. If companies provided clearer, more structured disclosures, announcements would be more meaningful for the market.

Meaningful disclosures

The newsletter also reminds listing sponsors to look critically at what constitutes meaningful disclosures and not take a mechanical box-ticking approach. In particular, sponsors should ensure listing documents provide sufficient risk disclosure for investors to assess a company’s prospects. Sponsors are also reminded to look critically at the opinions of experts engaged on technical matters. Including unreasonable or inaccurate opinions in listing applications could result in the suspension of the vetting process or other sanction.

The newsletter is available on the SFC website. Members of the public may subscribe by filling out the form available under the “Subscribe” link.

For details, please refer to the SFC articles:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR85

Corporate regulation newsletter (July):

http://www.sfc.hk/web/files/ER/Reports/CRN/CR_20140704.pdf

4. Ping An of China Securities (Hong Kong) Company Limited reprimanded and fined HK$6 million over internal control failures

On 9 July 2014, the Securities and Futures Commission (SFC) has reprimanded Ping An of China Securities (Hong Kong) Company Limited (Ping An) and fined it HK$6 million over serious internal control deficiencies and other matters.

Background

Ping An is licensed under the Securities and Futures Ordinance (SFO) to carry on business in Type 1 (dealing in securities), Type 4 (advising on securities) and Type 9 (asset management) regulated activities.

Lack of internal controls on AML

An SFC investigation found that, between 1 August 2010 and 30 April 2011 (Relevant Period), Ping An failed to establish anti-money laundering internal control procedures. Ping An also failed to actively identify and report to the SFC and the Joint Financial Intelligence Unit suspicious transactions in a timely manner. Furthermore, there was a lack of properly formulated internal AML policies at Ping An and, as Ping An did not provide AML training to members of staff, its staff were unaware of any internal requirements on AML during the Relevant Period.

These failures were in breach of paragraphs 4.2, 9, 10 and 11 of the AML Guidance as well as paragraph 5.4, General Principle (GP) 2, GP3 and GP7 of the Code of Conduct for Persons Licensed by or Registered with the SFC (Code of Conduct).

Handling client assets

The SFC also found during the investigation that there was a lack of internal policies on the handling of third party payments at Ping An. For all the 37 third party payments effected during the investigation period, Ping An did not conduct any assessment on the reasons for making the third party payments.

In addition, Ping An did not obtain identity proof of payment recipients for 23 of these third party payments.

Moreover, in some cases, third party payments were effected by Ping An without having received proper written directions from the relevant client.

There was also an occasion where Ping An effected a third party payment to its employee. It concerned a payment made from a client’s account into the account of the client’s daughter, who was then a customer service officer at Ping An.

The manner in which Ping An handled client assets and its lack of policy and control in relation to third party payments during the Relevant Period was in breach of sections 5(1)(b) and 5(3) of the Securities and Futures (Client Money) Rules, paragraphs 2 and 3 of the Suggested Control Techniques and Procedures for Enhancing a Firm’s Ability to Comply with the Securities and Futures (Client Securities) Rules, paragraph 9 under Part VII of the Management, Supervision and Internal Control Guidelines for Persons Licensed By or Registered with the SFC (Internal Control Guidelines), as well as GP2, GP3, GP8, paragraphs 4.3 and 11.1 of the Code of Conduct.

Staff dealing policies

Ping An failed to ensure compliance with its staff dealing policies, which were designed to help minimize conflicts of interests.

Ping An employees are required to declare their personal account(s) upon joining the firm by way of filling in an employee declaration form. However, two of the 15 employees who joined Ping An during and prior to the Relevant Period did not submit the relevant employee declaration forms until after 12 and 19 months upon joining respectively.

Ping An did not have a set of staff dealing policy that was clearly formulated, communicated to its employees and enforced by compliance or senior management, nor did it provide adequate training to ensure staff awareness on conflicts of interests and compliance during the Relevant Period. This is in breach of paragraphs 2 and 3 under Part III of the Internal Control Guidelines, and paragraph 12.2, GP2, GP6 and GP7 of the Code of Conduct.

Account opening procedures

During the Relevant Period, 15 client accounts were opened without valid address proof. Although Ping An had in place a set of account opening procedures, it had failed to diligently enforce such procedures. Ping An was in breach of paragraph 1 under Part VII of the Internal Control Guidelines, and paragraph 5.4, GP2 and GP7 of the Code of Conduct.

Lack of compliance function

The above internal control deficiencies reflect the inadequacy of Ping An’s compliance function during the Relevant Period.  In particular, between mid-October 2010 and March 2011, Ping An had no independent designated compliance officer. The then responsible officer of Ping An at the material time took up the responsibility of overseeing the compliance function at Ping An. However, she did little to discharge her responsibilities.

The SFC considers that Ping An did not have an effective compliance function during the Relevant Period, in breach of Part V of the Internal Control Guidelines and paragraph 12.1, GP2, GP3 and GP7 of the Code of Conduct.

Disciplinary actions

The SFC is of the view that there is a need to send a clear message to the market on the importance of effective internal controls and procedures. The SFC publicly reprimanded Ping An, pursuant to section 194(1)(b)(iii) of the Securities and Futures Ordinance (SFO) and imposed on Ping An a financial penalty of a total of HK$6 million, pursuant to section 194(2)(b) of the SFO.

Comment

This enforcement action is highly relevant to licensed corporation particularly fund managers to remind them that they should check their AML compliance program is in compliance with the relevant SFC and regulatory requirements.

Licensed corporations should have in place proper systems and controls for the identification and reporting of suspicious transactions. The first and foremost step is to gain sufficient knowledge about a customer’s business and financial circumstances (through customer due diligence and ongoing monitoring) to recognize that a transaction, or a series of transactions, is unusual. There should also be procedures in place for reporting internally by escalation to senior management and reporting externally to the Joint Financial Intelligence Unit of any suspicious transactions.

For details, please refer to the SFC articles:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR87

5. SFC revoked license of Yip Wan Fung and banned her for life

On 3 July 2014, the Securities and Futures Commission (SFC) has revoked the license of Ms. Yip Wan Fung and prohibited her from re-entering the industry for life.

Background

Yip is a licensed representative under the Securities and Futures Ordinance to carry on Type 1 (dealing in securities) regulated activity and accredited to Global Credit Securities Limited. She is a responsible officer of Global Credit Securities Limited.

Between late July of 2005 March 2006, Yip conspired to defraud OG Development Company Limited (OGD) and Hing Yip Holdings Limited (Hing Yip ) by dishonestly causing and permitting OGD to enter into a contract with Greatson Corporation Limited (Greatson) whereby OGD agreed to buy machinery at a purchase price of approximately HK$ 153 million.

In October 2010, Yip was sentenced to imprisonment of six years by the District Court following conviction of four criminal offences, including conspiracy to defraud, publishing a false statement and conspiracy to deal with the proceeds of an indictable offence. Yip was also disqualified from becoming directors of companies for eight years without leave of the court. Yip subsequently filed for an appeal. In March 2014, the Court of Final Appeal dismissed Yip’s application.

Disciplinary action

The SFC considers Yip is not a fit and proper person as a result of her convictions. Yip was subsequently prohibited from re-entering the industry for life.

Comment

Readers are once again reminded that it is the duty of a licensed person to abide by the General Principles of the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission (Code of Conduct). Paragraph 7.1 of the Fit and Proper Guidelines provides that a person may not be fit and proper if that person was found to be of poor reputation, character or reliability, lacking in financial integrity, or dishonest, which may be evidenced by that person’s being found by a court for fraud, dishonesty or misfeasance, or by his being convicted of a criminal offence which is of direct relevance to fitness and properness.

Readers should also note that SFC’s disciplinary actions against Yip are empowered by sections 194 to 196 of the Securities and Futures Ordinance, which provide that the SFC may revoke the license of a regulated person if he is found to be guilty of misconduct or is not fit and proper to be or to remain the same type of regulated person.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR83

6. SFC banned Fa Kwan Lun for 12 months

On 7 July 2014, the Securities and Futures Commission (SFC) has banned Mr. Fa Kwan Lun from re-entering the industry for 12 months from 4 July 2014 to 3 July 2015.

Background

Fa was licensed under the Securities and Futures Ordinance to carry on Type 1 (dealing in securities), Type 2 (dealing in futures contracts) and Type 3 (leveraged foreign exchange trading) regulated activities and was accredited to BOCI Securities Limited between May 2006 and December 2012.

The disciplinary action follows an SFC investigation which found that between March 2007 and December 2012, Fa, who was an account executive at the material time, concealed from his employer his beneficial interest in, and his personal trading activities conducted through, the securities account of his mother-in-law. In particular, such interest and personal activities in the account were not disclosed in his declarations of investments and investment accounts made to his employer.

The SFC also found that Fa had handled client money by transferring funds for four clients to their trading accounts through his personal bank account between June 2011 and July 2012. By letting his clients’ money mingle with his money in his bank account, he failed to ensure that his clients’ assets are properly safeguarded.

Disciplinary action

Fa’s concealment of his beneficial interest in and personal dealings through his mother-in-law’s account was dishonest and amounts to a breach of General Principle 1 of the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission (Code of Conduct). His misconduct had made it impossible for BOCI to actively identify and monitor his trading activities and detect any potential conflict of interest situations and/or other malpractices arising from such activities.

Fa also failed to act with due skill, care and diligence in managing his clients’ accounts and in the best interests of his clients in contrary to General Principles 2 of the Code of Conduct. By letting his clients’ money mingle with his money in his bank account, Fa has also breached General Principles 8 of the Code of Conduct for his failure to diligently ensure that his clients’ assets are properly safeguarded.

The SFC considers Fa’s misconduct called into question his fitness and properness to be a licensed person. Fa was subsequently banned by the SFC from re-entering the industry for 12 months from 4 July 2014 to 3 July 2015.

Comment

Readers are reminded that it is the duty of a licensed person to abide by the General Principles of the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission (the “Code of Conduct”).   General Principle of the Code of Conduct requires licensed persons to act honestly, fairly, and in the best interests of their clients and the integrity of the market, in conducting their business activities.

Readers should take note that safe custody of client assets is a fundamental obligation of licensed corporations. It is also the duty of a licensed person to abide by the Code of Conduct. A licensed person should exercise due skill, care and diligence and to act in the best interests of its clients.

For details, please refer to the SFC articles:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR86

7. SFC suspended Wu Li Jun for six months

On 3 July 2014, the Securities and Futures Commission (SFC) suspended Ms. Wu Li Jun, a former employee of China Merchants Securities (HK) Co., Limited (China Merchants Securities), for six months from 3 July 2014 to 2 January 2015.

Background

Wu was licensed as a representative under the Securities and Futures Ordinance to carry on Type 1 (dealing in securities) and Type 2 (dealing in futures contracts) regulated activities and was accredited to China Merchants Securities (HK) Co., Limited and China Merchants Futures (HK) Co., Limited between 25 January 2006 and 14 January 2014.

The disciplinary action follows an SFC investigation which found that between September and December 2011, Wu made nine deposits in the total sum of HK$15,831,032 for various clients to China Merchants Securities’ segregated accounts for holding client monies. Wu knew that China Merchants Securities did not permit her to make cash deposits on behalf of her clients in their absence. She nevertheless disregarded the requirement and deliberately circumvented its internal control procedures governing the ways in which client deposits should be made to China Merchants Securities by disguising the deposits as if they were made by the clients themselves.

Wu also failed to properly and adequately safeguard client assets as she had put her clients’ interests at risk by allowing her clients to deposit their monies into her personal bank account or a third party’s bank account before the monies were deposited into China Merchants Securities’ segregated accounts.

Disciplinary actions

The controls against depositing money directly into bank accounts of account executives are measures to prevent fraud and misappropriation of client assets. As a licensed representative, Wu was required under General Principle 8 of the General Principles of the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission (Code of Conduct) to ensure that assets received from clients, including their monies, are properly accounted for and adequately safeguarded. By allowing her clients to deposit monies into her personal or a third party’s bank account before she deposited the monies into CMS’ Accounts, she has put her clients’ interests at risk, in breach of General Principle 8 of the Code of Conduct.

The SFC considers that Wu’s conduct called into question her fitness and properness to be a licensed person.  She was subsequently suspended for six months from 3 July 2014 to 2 January 2015.

Comment

Readers should take note that safe custody of client assets is a fundamental obligation of licensed corporations. It is also the duty of a licensed person to abide by the Code of Conduct. A licensed person should exercise due skill, care and diligence and to act in the best interests of its clients.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR82

 

8. Hong Kong Fund management business continued to grow in 2013

On 8 July 2014, the Securities and Futures Commission (SFC) released the annual Fund Management Activities Survey (FMAS) which shows that the combined fund management business in Hong Kong hit another record high of HK$16,007 billion as of the end of 2013, representing year-on-year growth of 27.2%.

The FMAS

The FMAS has been conducted annually since 1999 to help the SFC assess the industry’s state of affairs for policy setting and operations planning. This year, a total of 555 institutions responded to the survey on a voluntary basis. They included 488 licensed asset management and fund advisory corporations, 47 registered financial institutions and 20 insurance companies

A preferred platform for international investors

The latest survey indicates that Hong Kong continued to be a preferred platform for international investors to invest in Asia. Contributions from overseas investors reached a historic high of HK$11,382 billion, 72% of the total fund management business in 2013.

“The record high assets under management (AUM) of our combined fund management business at the end of 2013 ranks us among the top asset management hubs in Asia ex Japan.  Significant inflows of overseas capital underscore the value and attractiveness of our open markets and our role as an international asset management center,” said Mrs. Alexa Lam, the SFC’s Deputy Chief Executive Officer and Executive Director of Investment Products, International and China.

Performance of different market players

Licensed asset management and fund advisory corporations continued to contribute the largest proportion of the combined asset management business.  Their aggregate asset management and fund advisory businesses amounted to HK$11,788 billion at the end of 2013, up 28.4% from end-2012.

Registered institutions recorded a 27.8% increase in their aggregate asset management and other private banking businesses to HK$3,678 billion at end-2013.

Insurance companies reported a 1.7% increase in their assets under management to HK$364 billion at end-2013.

Highlights of the survey

Non-REIT (real estate investment trust) asset management business has increased by 38.5% to HK$11,417 billion in 2013.  Of this amount, HK$5,827 billion worth of assets (or 51.0%) was managed in Hong Kong and 74.6% of these assets managed in Hong Kong were invested in Asia. Other private banking business increased by 2.7% to HK$2,752 billion in 2013. Fund advisory business grew by 11.6% to HK$1,661 billion in 2013.

The market capitalization of SFC-authorized REITs has increased by approximately 1.7% to HK$177 billion in 2013.

Center for creation and development of renminbi assets and products

The FMAS report notes that Hong Kong is committed to maintain its lead as the center for creation and development of Renminbi assets, products and services.  At the same time, as the number of Mainland-related financial institutions establishing operations in Hong Kong continues to increase, they have brought new opportunities to the Hong Kong market.

SFC’s role in facilitating market development

Furthermore, the report notes that the SFC continues its efforts to facilitate market development and safeguard investor interests through launching various facilitative measures and regulatory initiatives. The SFC is also committed to investor education and the ongoing monitoring of investment products.

“The SFC will continue to follow through with the Mainland regulatory authorities on arrangements in relation to the mutual recognition of funds between Hong Kong and the Mainland. This initiative will help promote Hong Kong domiciled funds. Increased AUM will further develop the ancillary professional service sectors engaged in the product development, investment management and distribution of sales of funds. We need to take positive steps to ensure that we have a robust and attractive platform with sufficient expertise to capture the ever-growing opportunities in the region, with China as one of the key driving forces of economic growth,” Mrs. Lam said.

For details, please refer to the Fund Management Activities Survey:

http://www.sfc.hk/web/EN/files/ER/Reports/2013%20FMAS%20Report.pdf

The article is for general information purpose only and is not intended to constitute legal or other professional advice.

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Newsletter – June 2014

As a leading compliance service provider for hedge funds, private equity firms, insurance groups and other financial institutions in Asia, CompliancePlus Consulting Limited held a cocktail reception  on 22nd May at the Hong Kong Club to celebrate its 5th Anniversary. Over 150 guests including fund managers, strategists, analysts, traders and CFOs from various financial institutions participated in the event.. Please click the following link for details:

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Newsletter – June 2014
  1. SFC proposed to amend exemptions for disclosure obligations
  2. SFC proposes greater flexibility for dissemination of prices and net asset values by authorized funds
  3. Delta Asia Securities Limited reprimanded and fined HK$4 million for failing to safeguard clients’ securities
  4. SFC banned Christopher Ma Chun Leung for ten years and Wong Man Chung for two years
  5. Ernst & Young produces audit working papers in Hong Kong and appeals order over Mainland papers
  6. SFC commenced proceedings against Greencool’s former chairman and seeks to freeze HK$1.59 billion of his assets to compensate investors
  7. Court maintained sentence of market manipulator
  8. Broker acquitted of illegal short selling
  9. SFAT affirmed SFC decision to suspend Jenny Chan Pik Ha
  10. Pacific Sun Advisors Limited and its director convicted of issuing advertisements without SFC authorization
  11. SFC banned Li Tak Wa for 15 months

1. SFC proposed to amend exemptions for disclosure obligations

On 18 June 2014, the Securities and Futures Commission (SFC) began a one-month consultation on proposals to amend the Guidelines for the Exemption of Listed Corporations from Part XV of the Securities and Futures Ordinance (Disclosure of Interests) (the Guidelines).

Background

On 10 April 2014, the SFC and the China Securities Regulatory Commission (CSRC) jointly announced Shanghai-Hong Kong Stock Connect, a pilot program for establishing mutual stock market access between Shanghai and Hong Kong. The Shanghai Stock Exchange (SSE) and The Stock Exchange of Hong Kong Limited (SEHK) will enable investors in each market to trade eligible shares listed on the other market through local securities firms or brokers.

Amendments

The amendments would provide two additional categories for exemption under the Guidelines to cover participants of the SEHK as well as clearing participants of a recognized clearing house that are themselves clearing houses.

Under Shanghai-Hong Kong Stock Connect, orders from eligible Mainland investors will be routed to SEHK via a securities trading service company established by the SSE in Hong Kong. In addition, China Securities Depository and Clearing Corporation Limited (ChinaClear) will provide Mainland investors with clearing, settlement, custody and nominee services for SEHK-listed shares.

The securities trading service company and ChinaClear will each come under the existing disclosure obligations under Part XV of the Securities and Futures Ordinance (SFO) if they hold at least a 5% interest in an SEHK-listed company, but would be eligible for exemptions under the proposed amendments. The securities trading service company will be admitted as a participant of SEHK and China Clear will be admitted as a participant of Hong Kong Securities Clearing Company Limited (HKSCC).

Services provided by the securities trading service company are similar to those provided by an SEHK participant who is an SFC-licensed person while services provided by ChinaClear are similar to those provided by HKSCC. SEHK participants who are SFC-licensed persons and HKSCC are currently exempted from the Part XV disclosure requirements if certain conditions are met.

Submitting comments to SFC

The public is invited to submit their comments to the SFC on or before 17 July 2014. Written comments may be sent on line via the SFC site (www.sfc.hk), by email to [email protected], by post or by fax to 2810 5385.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR72

2. SFC proposes greater flexibility for dissemination of prices and net asset values by authorized funds

On 24 June 2014, the Securities and Futures Commission (SFC) began a one-month consultation on proposals to amend the Code on Unit Trusts and Mutual Funds (the Code).

Amendments

The proposals give collective investment schemes greater flexibility in determining the means for making public their offer and redemption prices, net asset values (NAVs) and notices of dealing suspension. More frequent dissemination of prices and NAVs would also be required.

The proposals take into account recent developments in information technology and existing market practices as well as regulatory requirements in major overseas markets.

Submitting comments to SFC

The public is invited to submit their comments to the SFC on or before 23 July 2014. Written comments may be sent on line via the SFC site (www.sfc.hk), by email to [email protected], by post or by fax to 2877 0318.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR76

3. Delta Asia Securities Limited reprimanded and fined HK$4 million for failing to safeguard clients’ securities

On 4 June 2014, the Securities and Futures Commission (SFC) issued a reprimand to Delta Asia Securities Limited (Delta Asia) and fined it HK$4 million for failing to reasonably ensure that client securities were properly safeguarded.

Background

Delta Asia is licensed under the Securities and Futures Ordinance (SFO) to carry on Type 1 (dealing in securities), Type 3 (leveraged foreign exchange trading) and Type 4 (advising on securities) regulated activities. Delta Asia is also a participant of the Central Clearing and Settlement System (CCASS) of the Hong Kong Securities Clearing Company Limited (HKSCC) and it maintains a number of stock accounts in CCASS.

During the course of a limited review of Delta Asia’s operation conducted by the SFC’s Intermediaries Supervision Division (ISD) in April 2013, Delta Asia reported to ISD that there had been 35 incidents of settlement shortfalls between 17 March 2010 to 20 February 2013, with the shortfall temporarily covered by other shares or by purchase of the relevant shares on the next day. The SFC conducted an investigation into the activities of Delta Asia, including but not limited to its internal policies and controls in relation to trade settlement. In the course of the investigation, Delta Asia reported three additional incidents of settlement shortfalls to the SFC.

The SFC found that the settlement shortfalls reported by Delta Asia arose as a result of late delivery of physical script for settlement/ late registration of physical script delivered for settlement, or as a result of overselling due to a mistake made by the client/ by Delta Asia’s sales staff.

Use of client securities to settle the transactions of other clients

Between January 2010 and February 2013, Delta Asia used shares belonging to clients and held in segregated client accounts at the Central Clearing and Settlement System (CCASS) to settle transactions for its other clients who did not have sufficient shares in their accounts to discharge their respective settlement obligations on the settlement date. This occurred without the consent or authorization of the clients, whose shares were used for settlement, contravening the Securities and Futures (Client Securities) Rules on 36 occasions during the period.

In addition, the SFC found that on 2 occasions during the period, Delta Asia had transferred shares belonging to clients and held in the CCASS segregated client accounts to its CCASS clearing account, with a view to settle the transactions for Delta Asia’s other clients who did not have sufficient shares in their accounts to discharge their respective settlement obligations on the settlement date. However, the transferred shares were eventually not sent to the HKSCC for settlement purpose as a result of the netting of Delta Asia’s positions in the same security on the same day. This occurred without the consent or authorization of the clients whose shares were transferred and were in breach of the Securities and Futures (Client Securities) Rules notwithstanding that the transferred shares were eventually not used for settlement purpose.

Internal Control and Supervisory Failures

The SFC also found that Delta Asia did not have adequate internal controls and procedures in place in relation to the handling of shortfalls during the settlement process, thus allowing the practice of using client assets to settle other clients’ transactions to have gone unchecked for at least 3 years.

Although Delta Asia had a Stock Short Summary Report which identified the short positions of its clients, neither the management nor the compliance function reviewed this report. The settlement staff was left to review, and resolve issues arising out of, the report with little, if any, guidance and supervision from management. This shows that Delta Asia’s management took no active steps to supervise or monitor the operation of the settlement functions, and they simply relied on the settlement staff to identify and report any settlement issues to them.

Comment

Readers are reminded that Sections 6 and 10 of the Securities and Futures (Client Securities) Rules specify the circumstances in which intermediaries may withdraw or otherwise deal with client securities received or held on behalf of clients. The rules require intermediaries to take reasonable steps to ensure that client securities are not deposited, transferred, etc, except in the manner specified.

Readers are further reminded that it is the duty of a licensed person to abide by the General Principles of the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission (Code of Conduct). A licensed person should exercise due skill, care and diligence and to act in the best interests of its clients. A licensed person should also have in place and implement proper internal control procedures in relation to the handling of settlement shortfalls.

Readers should take note that safe custody of client assets is a fundamental obligation of licensed corporations. Any transgression of this obligation, even if the relevant clients are made whole again, cannot be tolerated. In the present case, Delta Asia had clearly breached this fundamental obligation and prejudiced the interests of its clients.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR65

4. SFC banned Christopher Ma Chun Leung for ten years and Wong Man Chung for two years

On 9 June 2014, the Securities and Futures Commission (SFC) banned Mr. Christopher Ma Chun Leung and Mr. Wong Man Chung from re-entering the industry for ten years from 28 May 2014 to 27 May 2024 and two years from 30 May 2014 to 29 May 2016 respectively.

Background

Ma was licensed as a representative under the Securities and Futures Ordinance (SFO) to carry on Type 1 (dealing in securities), Type 2 (dealing in futures contracts), and Type 7 (providing automated trading services) regulated activities and was accredited to Morgan Stanley Asia Limited, Morgan Stanley Hong Kong Futures Limited, and Morgan Stanley Hong Kong Securities Limited from July 1999 to May 2011.

Wong was licensed as a representative under the SFO to carry on Type 1 (dealing in securities), Type 2 (dealing in futures contracts), and Type 7 (providing automated trading services) regulated activities and was accredited to Morgan Stanley Asia Limited, Morgan Stanley Hong Kong Futures Limited, and Morgan Stanley Hong Kong Securities Limited (collectively Morgan Stanley) from June 1995 to November 2011.

SFC’s Investigation

The disciplinary actions follow an SFC investigation which found that Ma, the supervisor of a program trading desk, and Wong, a trader under Ma, had acted against the interests of clients and taken advantage of executions of orders of institutional clients in stocks traded on The Stock Exchange of Hong Kong Limited (SEHK). It was found that Ma and Wong had cancelled the trades executed on the SEHK for the clients and re-filled the client orders with trades at stock prices less advantageous to the clients. The cancellations and reallocations involved over 2,500 trades in 20 stocks which caused the institutional clients to pay a total of about HK$8 million more for their shares in 2009 and 2010.

In addition, Ma provided false or misleading information to his employer by altering the trading records which Morgan Stanley relied upon in making the submission to SFC during its investigation. Ma deleted and changed the time stamp and purchase quantity of the executed trades with a view to cover up the cancellation and re-allocation of the executed trades with stock prices less advantageous to the clients.

Disciplinary actions

The SFC considers that the misconduct of Ma and Wong seriously calls into question their fitness and properness to be licensed. Ma and Wong were banned for ten years from 28 May 2014 to 27 May 2024 and two years from 30 May 2014 to 29 May 2016 respectively.

Ma sought to review the SFC’s decision at the Securities and Futures Appeals Tribunal (SFAT) but eventually withdrew his application before the SFAT hearing.

Comment

Readers are reminded once again that it is the duty of a licensed person to abide by the General Principles of the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission (Code of Conduct). General Principle 1 of the Code of Conduct requires licensed persons to act honestly, fairly, and in the best interests of its clients and the integrity of the market, when conducting regulated activities.

Readers should also note that SFC’s disciplinary actions against Ma and Wong are empowered by sections 194 to 196 of the Securities and Futures Ordinance (SFO), which provide that the SFC may revoke the license of a regulated person if he is found to be guilty of misconduct or is not fit and proper to be or to remain the same type of regulated person.

For details, please refer to the SFC articles:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR67

5. Ernst & Young produces audit working papers in Hong Kong and appeals order over Mainland papers

On 20 June 2014, Ernst & Young (EY), reporting accountants and auditors of Standard Water, filed a Notice of Appeal in respect of a court order to produce documents held by its Mainland affiliate, EY Hua Ming (EYHM) in relation to an SFC investigation into the proposed listing of Standard Water.

Background

Standard Water applied for listing to the Stock Exchange of Hong Kong (SEHK) on 9 November 2009. In March 2010, EY informed the SEHK of its resignation as reporting accountants and auditors of Standard Water upon discovery of certain inconsistencies in documentation provided by the company. Shortly afterwards, Standard Water also withdrew its listing application. During an SFC investigation into the proposed listing of Standard Water, EY failed to provide the specified accounting records to the SFC citing they could not be produced as EY was not in possession of the records and that they could not be produced because of restrictions under PRC law.

The SFC subsequently brought the proceedings against EY in 2012 to compel the production of the specified records. The Court of First Instance rejected the cited arguments of EY and ordered them to produce the required material to the SFC. EY produced a disc of documents it held in Hong Kong and subsequently filed a Notice of Appeal in respect of the court order to produce documents held by its Mainland affiliate, EYHM.

The disc of documents produced to the SFC were found by EY on various hard drives in its Hong Kong office on the eve of the trial in this case, in March 2013, when production of the documents were refused by EY on the basis that the hard drives belonged to EYHM.

The SFC is investigating the materials contained in the disc produced to determine whether EY has fully complied with the court order and whether any further action needs to be taken against EY.

EY now informs the SFC that it needs another five weeks to complete its search of the hard drives in its Hong Kong office to find additional documents required to be produced to the SFC.

No date has been set for the hearing of EY’s appeal.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR78

6. SFC commenced proceedings against Greencool’s former chairman and seeks to freeze HK$1.59 billion of his assets to compensate investors

On 23 June 2014, the Securities and Futures Commission (SFC) has instituted proceedings in both the Court of First Instance (CFI) and the Market Misconduct Tribunal (MMT) against former chairman and chief executive officer, Mr Gu Chujun, and other senior executives of Greencool Technology Holdings Limited (Greencool), alleging market misconduct involving grossly overstating the company’s financial accounts for the years ended 31 December 2000 to 2004.

Background

Greencool was listed on the Growth Enterprise Market (GEM) of The Stock Exchange of Hong Kong Limited (SEHK) on 13 July 2000. On 1 August 2005, trading in Greencool shares was suspended and Greencool was subsequently delisted on 18 May 2007. On 5 March 2010, Greencool was struck off the register of non-Hong Kong companies by the Registrar of Companies of Hong Kong.

SFC’s investigation

The proceedings before the CFI have been commenced under section 213 of the Securities and Futures Ordinance against Gu, seeking, among other things, an injunction to freeze assets beneficially owned by Gu up to the value of about HK$1.59 billion, and an order for damages to compensate more than 1,300 minority shareholders. The SFC is alleging that Gu directed the fraud and should be ordered to compensate the minority shareholders who were led to acquire Greencool shares on the strength of the distorted financial results.

In the MMT proceedings, the SFC alleges Gu and eight other former senior executives of Greencool, and its former company secretary, were involved in gross overstatements of Greencool’s sales, profit, trade receivables, bank deposits, overstating Greencool’s net asset value and severely understating its bank loans, in annual reports and results announcements released between 2001 and 2005.

The SFC alleges that as a result of the overstatement of bank deposits and the non-disclosure of the bank loans, the net asset value of Greencool for the financial years ended 31 December 2000 to 2004 was overstated by approximately figures between RMB487 million and RMB1,062 million, which represent 43% to 80% of Greencool’s total net assets in these years.

The SFC has identified assets in Hong Kong, namely shares in other Hong Kong listed companies, which the SFC alleges are held for the benefit of Gu by nominees. The SFC is seeking interim orders freezing these shares for the purposes of facilitating compensation orders, if such orders are made by the CFI in the section 213 proceedings. The amount that the SFC is seeking to freeze, up to HK$1.59 billion, is the estimated losses suffered by minority shareholders together with accrued interest, the estimated gains received by Gu as a result of his alleged market misconduct together with accrued interest, and other costs that the CFI or the MMT may require Gu to pay in connection with both proceedings.

For details, please refer to the SFC articles:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR77

 

7. Court maintained sentence of market manipulator

On 17 June 2014, the Eastern Magistrates’ Court maintained the original sentence of Mr. Chan Wing Fai after considering the Securities and Futures Commission’s (SFC) application to review his sentence.

Background

Between 21 September 2009 and 2 December 2009, Chan bought single board lots of shares of Sonavox International Holdings Limited (Sonavox) and PacMOS Technologies Holdings Limited (PacMOS), causing the price of Sonavox and PacMOS to increase by as much as 80% and 28%, respectively. The SFC alleged that Chan did not have a genuine intention to acquire the two companies’ shares through his single-board-lot bid orders, except for the purpose of marking up the share price of Sonavox and PacMOS.

Chan faced eight charges of creating a false or misleading appearance with respect to the price for dealings in the securities of Sonavox and PacMOS, contrary to section 295 of the Securities and Futures Ordinance (SFO).

Upon trial, Deputy Magistrate Mr. Winston Leung Wing Chung of the Eastern Magistrates’ Court found that the prosecution had failed to prove, beyond reasonable doubt, Chan’s manipulative intent. Chan was acquitted on all charges on 13 January 2012.

An appeal was made by the SFC. On 23 January 2014, the Court of First Instance agreed that the decision to acquit Chan was based on legal errors and subsequently allowed the SFC’s appeal of acquittal.

On 11 April 2014, the Eastern Magistrates’ court convicted Mr. Chan Wing Fai on seven counts of false trading. Chan was sentenced to one month’s imprisonment

Application to review sentence

The SFC was concerned that the court had not taken into account the fact that Chan had relevant prior convictions, having been convicted on 12 summonses of false trading in 2008, which merited a more serious penalty. An application to review sentence was filed by the SFC to the Magistrate.

The Deputy Magistrate Winston Leung Wing Chung, however, considers the original sentence is sufficient to punish the defendant and reflect the nature of Chan’s wrongdoing. The original sentence was maintained.

Comments

Market manipulation commonly includes the release of false or misleading information; the taking up of wash sales from one another within a certain trading period to increase the turnover of the stock or distort the actual share price; the placing of purchase orders at slightly higher prices or sale orders at lower prices to drive up or suppress the price of the securities when the market just opened (marking the open) and the drying up of stocks supply to exert undue upward price pressure on the stocks (cornering shares).

False trading takes place when a person does anything or causes anything to be done with the intention to create a false or misleading appearance of active trading in securities or futures contracts traded on a relevant recognized market, or by means of authorized automated trading services.

Readers should note that false trading is a form of market manipulation. It is a criminal offence and is a category of market misconduct under the Securities and Futures Ordinance (SFO) subject to severe punishment.

Readers are reminded that under section 274 of the SFO, unless the transaction in question is an off-market transaction, a person who directly or indirectly enters into or carries out any transaction of sale or purchase of securities that does not involve a change in the beneficial ownership is also considered to be intentionally creating a false or misleading appearance.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR71

8. Broker acquitted of illegal short selling

On 4 June 2014, the Eastern Magistrates’ Court, on 30 May 2014, found Mr. Wong Hung not guilty of illegal short selling five stocks in January 2012.

Background and allegation

Wong is licensed as a representative under the Securities and Futures Ordinance (SFO) to carry on Type 1 (dealing in securities) regulated activity. He was accredited to Hung Sing Securities Limited at the material time and is currently accredited to KGI Asia Limited.

The Securities and Futures Commission (SFC) alleged that between 6 and 20 January 2012, Wong sold shares of five listed companies through his securities account when the total of all the shares he sold was more than the shares he held, contrary to section 170 of the SFO.

Acquittal

Magistrate Mr. David Chum Yau-fong found that since Wong placed a lot of orders each day, he could not exclude the possibility that Wong was careless about whether he was selling more shares than he held when placing the sell orders. Furthermore, the Magistrate found that the prosecution had failed to prove the case beyond reasonable doubt. Accordingly, Wong was acquitted of all charges.

Comment

Readers are reminded that the sales of securities when the person does not have a presently exercisable and unconditional right to sell them is strictly prohibited under Section 170 of the SFO.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR66

9. SFAT affirmed SFC decision to suspend Jenny Chan Pik Ha

On 10 June 2014, the Securities and Futures Commission (SFC) suspended Ms. Jenny Chan Pik Ha for four months from 9 June 2014 to 8 October 2014 following the determination of the Securities and Futures Appeals Tribunal (SFAT) to uphold the SFC’s decision to suspend her license but reducing the period of suspension from six months to four months.

Background and investigation

Chan is licensed under the Securities and Futures Ordinance (SFO) to carry on Type 1 (dealing in securities) and Type 2 (dealing in futures contracts) regulated activities and was accredited to ICBC International Securities Limited and ICBC International Futures Limited between 20 May 2011 and 20 October 2011. Chan is currently accredited to KGI Asia Limited and KGI Futures (Hong Kong) Limited.

An SFC investigation found that between June 2011 and October 2011, Chan, who was then an account executive of ICBC International Securities Limited (ICBCI Securities), had failed to record and maintain proper audit trail of the orders placed by her clients. She failed to keep any written and/or telephone records in relation to a number of orders placed by her clients, and some of her dealing tickets were either not time stamped or time stamped only after the market had closed. Chan also accepted trade instructions from a third party without obtaining written authorization from her clients as required by ICBCI Securities. Furthermore, Chan deposited HK$300,000 from her personal bank account to a client’s account to settle a trade and verified on ICBC’s internal documentation that the deposit was from the client’s own funds.

Penalty and application for review

The SFC concluded that Chan’s conduct called into question her fitness and properness as a licensed person as Chan had failed to comply with the order recording requirements, and had failed to act with due skill, care and diligence in managing her clients’ accounts. Subsequently, the SFC suspended Chan for a period of six months. On 11 November 2013, Chan filed an application to the SFAT for a review of the penalty.

SFAT’s ruling

The SFAT upheld the SFC’s ruling to suspend Chan’s license but reduced the suspension period from six months to four months, taking into account that Chan’s application for transfer of accreditation after she left ICBCI Securities was delayed for about four months while the SFC’s investigation into her conduct was pending.

Comment

The SFAT’s ruling highlights that internal controls prescribed by licensed corporations, insofar as they seek to ensure competency and integrity in the manner in which employees carry out their dealing responsibilities, are not purely private guidelines between employers and employees, but constitute an integral part of the regulatory system that governs the securities industry.

In this case, the SFAT accepted that a breach of such internal controls may be the subject of disciplinary action of a public nature, as the breach constitutes a failure to comply with the public principles-based regulations governing intermediaries imposed by the SFC.

Readers are once again reminded that it is the duty of a licensed person to abide by the General Principles of the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission (Code of Conduct). General Principle 2 demands that a licensed dealer must act with necessary skill and diligence, doing so in the best interests of clients and the integrity of the market.

For details, please refer to the SFC articles:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR68

 

10. Pacific Sun Advisors Limited and its director convicted of issuing advertisements without SFC authorization

On 10 June 2014, Pacific Sun Advisors Limited (Pacific Sun) and its director Mr. Andrew Pieter Mantel were convicted at the Tsuen Wan Magistrates’ Court on four charges of issuing advertisements to promote a collective investment scheme without the authorization of the Securities and Futures Commission (SFC). Pacific Sun was fined HK$20,000 and Mantel was sentenced to four weeks’ imprisonment suspended for 12 months.

Background

Pacific Sun is licensed by the SFC to carry on Type 4 (advising on securities) and Type 9 (asset management) regulated activities. Mantel, who is licensed by the SFC to carry on Type 4 (advising on securities) and Type 9 (asset management) regulated activities accredited to Pacific Sun, is a responsible officer of Pacific Sun.

Pacific Sun and Mantel were charged with issuing advertisements, between November and December 2011, promoting a collective investment scheme called “Pacific Sun Greater China Equities Fund” (the Fund) without first obtaining the SFC’s authorization for the advertisements. They were also charged with issuing an advertisement regarding the launch of the fund to the public by email on or around 2 and 3 November 2011 without the authorization of the SFC.

Pacific Sun and Mantel were initially acquitted in March 2013 after arguing that the advertisements fell within an exemption that applied to sales limited to professional investors. The SFC, on the other hand, submitted that the exemption did not permit advertisements that had not been authorized by the SFC to be issued to the public and that in this case there was no evidence the interests in the Fund were only intended or had only been sold to professional investors.

Appeal

The SFC filed for an appeal against the acquittal. In January 2014, The Court of First Instance issued a ruling clarifying that the advertisements in question did not fall within the exemption and ordered the case to be returned to the Magistrates’ Court for reconsideration. The Court of First Instance made it clear that the exemption only applies where the advertisement states on its face that the terms of the offer are limited to professional investors.

This ruling protects retail investors from the risks of direct marketing of inappropriate or risky investment products. Pacific Sun was fined HK$20,000 and Mantel was sentenced to four weeks’ imprisonment suspended for 12 months.

Comments

Readers should take note that under section 103 of the Securities and Futures Ordinance (SFO), a person commits an offence if he issues, or has in his possession for the purposes of issue, an advertisement, invitation or document for an investment scheme or financial product without first receiving authorization from the SFC under section 105

Readers are also reminded that under section 103(3)(k) of the SFO, an advertisement does not need SFC authorization when the advertisement is in respect of securities, structured products or interests in a collective investment scheme that are or are intended to be disposed of only to professional investors.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR69

11. SFC banned Li Tak Wa for 15 months

On 18 June 2014, the Securities and Futures Commission (SFC) banned Mr. Li Tak Wa from re-entering the industry for 15 months from 18 June 2014 to 17 September 2015.

Background and investigation

Li was licensed as a representative under the Securities and Futures Ordinance (SFO) to carry on Type 1 (dealing in securities) and Type 2 (dealing in futures contracts) regulated activities and was accredited to Kaiser Securities Limited and Kaiser Futures Limited between 12 March 2004 and 30 November 2012.

The SFC’s investigation into Li’s conduct stemmed from a client complaint received by Kaiser Securities Limited. Upon investigation, the SFC found that Li had, among other things, conducted unauthorized trading in his client’s accounts at Kaiser and the client had suffered losses as a result.

The client was introduced to Li through a mutual friend and opened her accounts at Kaiser on 21 December 2009. Li was her account executive and he handled her account opening process. Li knew that the client owned and operated a toy manufacturing factory and was not married. He however allowed the client’s account opening forms to state that she was a housewife even though he knew that such information was incorrect. After the client opened her accounts at Kaiser, she verbally authorized Li to trade in her accounts on a discretionary basis. Li admitted that during the period from January 2010 and March 2012, he conducted trades in the client’s accounts on a discretionary basis without obtaining written authorization from the client.

The operation of discretionary accounts was not allowed at Kaiser Securities, and was discouraged at Kaiser Futures. According to a responsible officer of Kaiser Futures, special procedures had to be followed and approval had to be obtained before a discretionary account could be opened. Kaiser Futures had never received any formal request to open a discretionary account and did not know the Client authorized Li to operate her account on a discretionary basis.

Disciplinary action

Although there was evidence that the client verbally authorized Li to trade in her accounts on a discretionary basis, the absence of written authorization avoided monitoring and supervision by Li’s employer. Li also ignored the specific requirements in the Code of Conduct which required him to obtain the client’s prior written approval when conducting more than two day trades and opening short options positions in the client’s futures account, and deprived the client of an opportunity to make an informed decision before such transactions were conducted on her behalf.

The SFC considers Li’s conduct to have demonstrated a preparedness to ignore important safeguards and calls into question his fitness and properness to be a licensed person. Subsequently, Li was banned from re-entering the industry for 15 months from 18 June 2014 to 17 September 2015.

Comment

A “day trade” is a transaction whereby a licensed person executes in the same day an order to buy and an order to sell futures or options contracts on the same market in the same futures contract month, option series or currency contract type for the same client.

Readers should take note that under Paragraph 4 of Schedule 4 to the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission (Code of Conduct), a licensed person should not accept, carry or initiate on behalf of a discretionary account more than two day trades in the futures market or open short options positions in a discretionary account, unless it has obtained from the client prior written approval specifically authorizing such transactions.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/enforcement-news/doc?refNo=14PR70

The article is for general information purpose only and is not intended to constitute legal or other professional advice.

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Newsletter – May 2014

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Newsletter – May 2014
  1. SFC reprimands and fines Deutsche Bank Aktiengesellschaft HK$1.6 million for regulatory breaches
  2. Court orders EY to produce accounting records to SFC
  3. SFC resolves concerns over Citigroup’s algorithmic trading system
  4. SFC reprimands and fines Kaiser HK$1.7 million for conducting unauthorized financial activities offshore
  5. SFC reprimands and fines ICBC International Capital Limited and ICBC International Securities Limited HK$12.5 million each for failures related to IPO shares subscription
  6. C.L. Management Services Limited and its director fined HK$1.5 million for unlicensed activities
  7. SFC obtains court orders for GOME to receive HK$420 million compensation from founder and wife over breaches in share repurchase
  8. SFC bans Helen Chow Hoi Ching and Choy Cheuk Tung for life
  9. Futures manipulator sentenced to community service

1. SFC reprimands and fines Deutsche Bank Aktiengesellschaft HK$1.6 million for regulatory breaches

The Securities and Futures Commission (SFC) has reprimanded and fined Deutsche Bank Aktiengesellschaft (Deutsche Bank) HK$1.6 million for regulatory breaches and internal control failings.

Background

Deutsche Bank is a registered institution under the Securities and Futures Ordinance (SFO) to carry on Type 1 (dealing in securities), Type 4 (advising in securities), Type 6 (advising on corporate finance) and Type 9 (asset management) regulated activities. Deutsche Bank is also an authorized institution under the supervision of the Hong Kong Monetary Authority.

The disciplinary action follows an SFC investigation into the failure of Deutsche Bank to disclose to Stock Exchange of Hong Kong Limited (SEHK) the changes to its percentage holdings in the issued share capital of Up Energy Development Group Limited on 27 occasions from 21 January 2011 to 25 August 2011. Three of these 27 occasions involved trading activity by Deutsche Bank; the remainder involved increases to the listed company’s total issued share capital.

Although Deutsche Bank had implemented an electronic position monitoring system to capture and monitor its positions globally, the system did not automatically capture equity positions that were processed and settled under the settlement system used in Singapore in its fixed income division. Deutsche Bank was aware of this limitation but failed to implement adequate procedures or training to guide the relevant business groups at Deutsche Bank to identify and report those equity positions that did not automatically feed into its electronic position monitoring system.

Disciplinary actions

Taking into account Deutsche Bank reported the matter to the SFC and has since strengthened its internal controls on the monitoring and disclosure of its equity positions in Hong Kong listed companies, SFC reprimanded and fined Deutsche Bank Aktiengesellschaft HK$1.6 million for regulatory breaches.

Comments

Readers are reminded that under Section 310(1) of the SFO provided that where a person acquires an interest in or ceases to be interested in shares comprised in the relevant share capital of a listed corporation; or where any change occurs affecting a person’s existing interest in shares in a listed corporation’s share capital, then in the circumstances specified in section 313(1), he comes under a duty of disclosure.

The notifiable percentage level for notifiable interests is 5% and the specified percentage level for changes to notifiable interests is 1%.

Where a person comes under a duty of disclosure under section 310, he should give notification to the listed corporation concerned and SEHK of the interests which he has, or ceases to have, in the shares of the listed corporation. The notification should be given at the same time or, if not practicable, one immediately after the other.

Recently, SFC had announced several enforcement actions on similar nature that some firms failed to meet with the regulatory reporting requirement such as on Large and Open Position Reporting. We recommend licensed firms should run regular testing on their compliance on this area such as short positing reporting compliance testing etc.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR59

2. Court orders EY to produce accounting records to SFC

On 23 May 2014, the Court of First Instance ordered EY must produce specified accounting records relating to its work as the reporting accountant and auditor for Standard Water Limited (Standard Water) to the Securities and Futures Commission (SFC).

Background

Standard Water applied for listing to the Stock Exchange of Hong Kong (SEHK) on 9 November 2009. In March 2010, EY informed the SEHK of its resignation as reporting accountants and auditors of Standard Water upon discovery of certain inconsistencies in documentation provided by the company. Shortly afterwards, Standard Water also withdrew its listing application. During an SFC investigation into the proposed listing of Standard Water, EY failed to provide the specified accounting records to the SFC citing they could not be produced as EY was not in possession of the records and that they could not be produced because of restrictions under PRC law.

The SFC subsequently brought the proceedings against EY in 2012 to compel the production of the specified records.

The Court of First Instance rejected the cited arguments of EY and ordered them to produce the required material to the SFC. Further, EY has been ordered to pay the SFC costs on an indemnity basis.  Auditors should not withhold information that is in their possession and sought by the SFC in connection with suspected misconduct in Hong Kong’s markets.

Comments

Readers are reminded that, under the Securities and Futures Ordinance (SFO), the SFC is empowered to request information from persons whom it believes may have information relevant to an investigation.  If a person fails to comply with such a request without a reasonable excuse, the SFC can bring proceedings under the SFO which empowers the Court of First Instance to inquire into the circumstances of non-compliance. The court can order the person to comply with the SFC’s request if it is satisfied that the person does not have any reasonable excuse for not complying. Readers are also reminded about the obligations of an accounting firm, or any other company based in Hong Kong to comply with requirements under Hong Kong law.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR60

3. SFC resolves concerns over Citigroup’s algorithmic trading system

On 14 May 2014, the Securities and Futures Commission (SFC) has reprimanded Citigroup Global Markets Asia Limited (Citigroup) for its failure to ensure that certain securities orders executed through its algorithmic trading system between April 2009 and May 2010 would not cause undue price impact to the market in resolving the SFC’s concerns over Citigroup’s algorithmic trading system.

Background

Citigroup is licensed under the Securities and Futures Ordinance to carry on business in Type 1 (dealing in securities), Type 2 (dealing in futures contracts), Type 4 (advising on securities), Type 5 (advising on futures contracts), Type 6 (advising on corporate finance) and Type 7 (providing automated trading services) regulated activities.

The SFC’s investigations into Citigroup’s use of algorithmic trading system to execute client orders on four occasions found that Citigroup’s execution in those cases resulted in a material increase or decrease in the price of the relevant stocks within a very short period of time, before the stock prices returned quickly to their original levels.

Disciplinary actions

Taking into account that the Citigroup co-operated with the SFC in resolving the its concerns and that the Citigroup had agreed to engage an independent reviewer to conduct a forward-looking review of its algorithmic trading system to ensure compliance with the new regulation on electronic trading which came into force on 1 January 2014. The SFC had decided against imposing a heavy fine on Citigroup. A public reprimand was issued against Citigroup for its failure to ensure that certain securities orders executed through its algorithmic trading system.

Comments

Readers are reminded that Chapter 18 and Schedule 7 of the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission (Code of Conduct) on electronic trading came into effect on 1 January 2014. Licensed corporation should, among other things, effectively manage and adequately supervise the design, development, deployment and operation of its electronic trading system and ensure the system’s integrity, including security as stated under paragraph 1.2.4 of Schedule 7, which stresses the necessity of appropriate operating controls to prevent and detect unauthorized intrusion, security breach and security attack.

Licensed corporations should, as a matter of priority, review their existing internet trading systems, related policies, procedures and practices and make enhancements where needed, so as to establish and maintain a proper IT security management framework given that the SFC rules on electronic trading has taken effect since 1 January 2014.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR38

4. SFC reprimands and fines Kaiser HK$1.7 million for conducting unauthorized financial activities offshore

On 7 May 2014, the Securities and Futures Commission (SFC) has reprimanded Kaiser Securities Limited (Kaiser Securities) and Kaiser Futures Limited (Kaiser Futures) (collectively referred to as Kaiser) and fined them a total of HK$1.7 million for conducting unauthorized financial activities in breach of the laws of Macau. Kaiser Securities and Kaiser Futures were fined HK$1 million and HK$700,000 respectively.

Background

Kaiser Securities is licensed under the SFO to carry on Type 1 (dealing in securities) regulated activity.  Kaiser Futures is licensed under the SFO to carry on Type 2 (dealing in futures contracts) regulated activity.

Between 2004 and 2011, Kaiser conducted securities business in Macau at the premises of Unified Securities (Macau) Limited (Unified) and provided services to clients in respect of their trading in securities, futures and options in the Hong Kong market in Macau through Unified.

Under the arrangement between Kaiser and Unified, Unified introduced Macau clients to Kaiser and provided general assistance to the clients in engaging Kaiser’s services. When clients in Macau wish to open accounts with Kaiser, Kaiser would send its licensed representatives to Unified to handle the account opening. In conducting trades in their accounts, the clients placed securities trading orders with Kaiser through internet, telephone or Unified’s staff, and received account statements from Kaiser on a regular basis.

Kaiser’s conduct contravened Article 118(1) of the Financial System Act of Macau because Kaiser did not have any authorization to carry on such a business in Macau. In July 2013, the Monetary Authority of Macao announced the decision of the Secretary for Economy and Finance of Macau to sanction Kaiser Securities and Kaiser Futures for their breach of the Financial System Act. Kaiser Securities was fined MOP 1,500,000 and Kaiser Futures was fined MOP 150,000 by the Macau authority.

Disciplinary action

Kaiser’s contravention of the laws of Macau cast doubt on their reputation, character and reliability and constitutes a breach of paragraph 12.1 of the Code of Conduct. The SFC publicly reprimanded Kaiser and fined them a total of HK$1.7 million pursuant to section 194 of the Securities and Futures Ordinance (SFO) for conducting unauthorized financial activities in breach of the laws of Macau. Kaiser Securities and Kaiser Futures were fined HK$1 million and HK$700,000 respectively.

Comments

Readers should note that the duty of a licensed person to demonstrate the qualities of sound reputation, character and reliability is not only restricted to their conduct in the Hong Kong market. It is also imperative for them to respect and comply with rules of relevant regulatory authority and laws of relevant jurisdictions, particularly those where Kaiser conduct their business activities.

Paragraph 12.1 of the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission (Code of Conduct) provides that a licensed person should comply with, and implement and maintain measures appropriate to ensuring compliance with, the law and relevant regulatory requirements.

Readers are further reminded that a licensed corporation having employees or agents conducting business activities on its behalf in other jurisdictions (irrespective of whether such persons are licensed under the Securities and Futures Ordinance), is likely to be regarded by the Commission as responsible for their conduct. If these persons are not licensed under the laws or regulations of such other jurisdictions when they should be, or they otherwise conduct themselves in an improper manner, this may constitute a breach of paragraph 12.1 of the Code of Conduct and may also call into question the fitness and properness of such a corporation and/or individual to be, or remain, licensed under the Securities and Futures Ordinance.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR49

5. SFC reprimands and fines ICBC International Capital Limited and ICBC International Securities Limited HK$12.5 million each for failures related to IPO shares subscription

The reprimand and fine follows ICBC International Capital Limited (ICBCI Capital) and ICBC International Securities Limited (ICBCI Securities) (collectively ICBCI) an investigation into the practice and procedure adopted by ICBCI in relation to their role in the initial public offering of Powerlong Real Estate Holdings Limited (Powerlong) in 2009.

Background

An SFC investigation found that ICBI had, among others:

  • failed to conduct customer due diligence and perform ongoing scrutiny of accounts of certain placees referred by Powerlong (Placees) to ensure that the transactions being conducted were consistent with its knowledge of the Placees, taking into account their source of funds;
  • turned a blind eye to the lack of independence of Placees for the subscription of Powerlong’s shares allotted through its listing (the Offer Shares) on The Stock Exchange of Hong Kong Limited (SEHK); and
  • failed to use reasonable efforts to ensure that submissions to the SEHK were true, accurate and not misleading.

An SFC investigation revealed that the Placees were referred to ICBCI Capital by ICBCI Securities which had been referred to them by Powerlong. The subscriptions of the Placees for the Offer Shares were accepted without conducting know-your-client due diligence to either ascertain their financial situation or confirm their independence from Powerlong.

The Offer Shares were re-priced due to insufficient demand. Thereafter, subscriptions of the Placees suddenly increased by as much as tenfold. ICBCI Securities failed to perform ongoing scrutiny to ensure that the Placees’ subscriptions were consistent with its knowledge of their financial situation. Further, no inquiry was made by ICBCI Capital to ascertain whether this was the case or the relationship between the Placees and Powerlong after a staff member of ICBCI Capital voiced suspicions.

Although the subscriptions of some of the Placees exceeded their declared net worth, ICBCI Capital nevertheless allocated the Offer Shares to them. As a result, massive debit balances were triggered after the Offer Shares were booked into their accounts. Margin financing of as much as 50%, which was not generally granted in international primary placings, was then extended by ICBCI Securities to certain Placees.

When some Placees raised questions regarding third-party settlement of their subscriptions, instead of questioning the reasons behind them, personnel of ICBCI Securities advised them to settle their allotment by various methods which ensured that the identity of the third-party depositors could not be traced.

Disciplinary Action

Further to the reprimand and fine of ICBCI, ICBCI has agreed to accept the disciplinary action and has committed to engage a firm of independent reviewers to undertake a comprehensive review of its systems and controls and to implement the recommendations made by the reviewer to the satisfaction of the SFC.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR58

6. C.L. Management Services Limited and its director fined HK$1.5 million for unlicensed activities

The Eastern Magistrates’ Court convicted C. L. Management and its director, Ms. Clarea Au Suet Ming (Au), on three counts of holding out as providing advisory services on corporate finance without a licence from the SFC after they pleaded not guilty.

Background

A Securities and Futures Commission (SFC) investigation found that between October 2010 and January 2012, C.L. Management had entered into service agreements with three companies for advising on their listing applications. The Eastern Magistrates Court accepted that the scope of services under these service agreements constituted advising on corporate finance and by entering into these service agreements, C.L. Management represented itself as being prepared to advise these three companies on their listing applications.

Comments

Readers are reminded that under the Securities and Futures Ordinance (SFO), advising on corporate finance is a regulated activity which requires a Type 6 (advising on corporate finance) licence from the SFC and under section 114(1)(a) and 114(8) of the SFO, a person commits an offence when the person, without reasonable excuse, carries / carried on a business in a regulated activity without a licence.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR57

7. SFC obtains court orders for GOME to receive HK$420 million compensation from founder and wife over breaches in share repurchase

On 5 May 2014, the Court of First Instance granted orders sought by the Securities and Futures Commission (SFC) in its proceedings against the former Chairman of GOME Electrical Appliances Holding Limited (GOME), Mr. Wong Kwong Yu and his wife, Ms. Du Juan, a former director of GOME, for them to compensate GOME HK$420 million and interest for their breaches of directors’ duties in certain share repurchases GOME conducted between 22 January and 5 February 2008 (Share Repurchase).

Background

The SFC commenced proceedings against Wong, Du and two companies in August 2009 alleging that Wong and Du organized a share repurchase, which took place between 22 January and 5 February 2008, to raise cash to repay a HK$2.4 billion personal loan to a financial institution which was due by 11 February 2008.

The Court of First Instance granted an interim injunction to freeze assets of up to HK$1,655,167,000 in August 2009. The injunction against the two companies was later discharged on 8 September 2009 upon deposit with the court of share certificates representing 779,255,678 shares of GOME and the injunction against Du was discharged on 2 March 2011.

Wong directed GOME to repurchase the majority of the 136,937,000 shares originally held by him which constituted approximately 70% of the total number of shares repurchased by GOME in the Share Repurchase.

Wong and Du have failed to ensure the share repurchase was properly authorized by GOME’s board. Wong did not make full disclosure of such personal interest as he may have had in the share repurchase as a seller of the GOME shares. Wong further admitted that he should not have participated in the meeting of the executive directors that authorized the Share Repurchase nor should he have participated in implementing the Share Repurchase.

For the purposes of resolving the SFC’s proceedings and seeking ratification from the minority shareholders, Wong and Du have agreed that they have breached their directors’ duties to GOME to act properly and in the best interests of GOME and to avoid making any unauthorized or improper gain at the expense of GOME.

Wong and Du agreed to pay GOME an aggregate amount of HK$420,608,765.75, representing the gains, together with accrued interest, received by Wong as a result of his sale of GOME shares to GOME as part of the share repurchase and the loss incurred by GOME

Wong and Du have also agreed to requisition a special general meeting of the Company (SGM) and to prepare a notice of meeting to be sent to all shareholders of GOME in which they will seek shareholders’ resolutions to ratify the share repurchase and their breaches of directors’ duties to the Company.

On 17 April 2014, independent shareholders passed resolutions at the SGM to ratify the Share Repurchase and Wong’s and Du’s associated breaches of directors’ duties; and the payment of compensation to GOME by Wong and Du in return for releasing Wong, Du and any others from all liabilities and claims arising from the Share Repurchase and breaches of duties.

Court order

The injunction to freeze assets of Wong up to the value of HK$1,655 million in order to secure assets to meet any compensation order was discharged by the court.  HK$420 million paid by Wong and Du into court for the purposes of compensating GOME was also released to GOME together with interest.

Hon Mr. Justice Harris of the Court of First Instance further ordered the undertakings of Shinning Crown Holdings Inc (Shinning Crown) and Shine Group Ltd (Shine Group), two companies through which Wong held his shares in GOME, be released. 779 million GOME shares the two companies deposited with the court used to satisfy any liability of Du is to be returned to Shinning Crown and Shine Group also.

Comments

Readers are reminded that under Rule 2 of the SFC’s Codes on Takeovers and Mergers and Share Buy-backs, a board of shareholders which receives an offer, or is approached with a view to an offer being made, must in the interests of shareholders, establish an independent committee of the board to make a recommendation (i) as to whether the offer is, or is not, fair and reasonable and (ii) as to acceptance or voting. As soon as reasonably practicable, the board must retain a competent independent financial adviser to advise the independent committee in writing in connection with the offer and in particular as to whether the offer is, or is not, fair and reasonable and as to acceptance and voting. The independent committee must approve the appointment of any independent financial adviser before the appointment is made.

Readers are further reminded that subject to the provisions of the Code on Share Repurchases, an issuer may purchase its shares on the HKEX. All such purchases must be made in accordance with rule 10.06. Rules 10.06(1), 10.06(2)(f) and 10.06(3) apply only to issuers whose primary listing is on the HKEX while the rest of rule 10.06(2) and rules 10.06(4), (5) and (6) apply to all issuers. The Code on Share Repurchases must be complied with by an issuer and its directors. Any breach of the Code by an issuer will be a deemed breach of the Exchange Listing Rules and the HKEX may in its absolute discretion take action to penalize any breaches.

Under Rule 10.06(2) of the Rules Governing the Listing of Securities on the HKEX, an issuer shall not purchase its shares on the HKEX for a consideration other than cash or for settlement otherwise than in accordance with the trading rules of the Exchange from time to time. Furthermore, an issuer shall not knowingly purchase its shares from a connected person and a connected person shall not knowingly sell shares to the issuer.

Readers should also take note that under section 213 of SFO, the Court of First Instance may grant an interim injunction to freeze assets of any person who contravened the SFO on the application of the SFC.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR52

8. SFC bans Helen Chow Hoi Ching and Choy Cheuk Tung for life

On 7 May 2014, the Securities and Futures Commission (SFC) has, in two separate actions, banned Ms. Helen Chow Hoi Ching, a former employee of The Royal Bank of Scotland N.V. (formerly known as ABN AMRO Bank N.V.), and Ms. Choy Cheuk Tung, a former employee of Standard Chartered Bank (Hong Kong) Limited, from re-entering the industry for life.

Background

Between January 2009 and March 2009, Chow transferred monies totaling HK$28,876,653 from four customers’ accounts without their authorizations to other customers’ accounts by forging the customers’ signatures on bank instruction forms. To conceal the unauthorized transfers, Chow changed the correspondence address of two of the customers by forging their signatures on bank instruction forms and sent false bank statements to one of them.

In July 2012, Choy misappropriated a total of HK$750,000 from a bank customer by forging the customer’s signature and made three transfers from the customer’s account into her husband’s account, and subsequently transferred a total of HK$700,000 into her own account.

Conviction and disciplinary actions

Chow was sentenced to imprisonment of four years by the District Court following conviction on one count of fraud on 11 September 2013.

Choy was sentenced to imprisonment of 18 months by the District Court following convictions of three counts of theft and three counts of dealing with property known or reasonably believed to represent proceeds of an indictable offence on 5 December 2013.

The SFC considers Chow and Choy are not fit and proper persons as a result of their convictions. Subsequently, they were banned from re-entering the industry for life.

Comments

Readers should note that under Section 71 of the Crimes Ordinance, a person who makes a false instrument, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice, commits the offence of forgery and is liable on conviction on indictment to imprisonment for 14 years.

Under Section 16A of the Theft ordinance, any person by any deceit and with intent to defraud induces another person to commit an act which results either in benefit to any person other than the second-mentioned person, he or she person commits the offence of fraud and is liable on conviction upon indictment to imprisonment for 14 years.

Furthermore, under Section 25 of the Theft ordinance, a person commits an offence if, knowing or having reasonable grounds to believe that any property in whole or in part directly or indirectly represents any person’s proceeds of an indictable offence, he or she deals with that property. A person who commits this offence is liable on conviction upon indictment to a fine of HK$5,000,000 and to imprisonment for 14 years; or on summary conviction to a fine of HK$500,000 and to imprisonment for 3 years.

Readers are once again reminded that it is the duty of a licensed person to abide by the General Principles of the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission (Code of Conduct). Paragraph 7.1 of the Fit and Proper Guidelines provides that a person may not be fit and proper if that person was found to be of poor reputation, character or reliability, lacking in financial integrity, or dishonest, which may be evidenced by that person’s being found by a court for fraud, dishonesty or misfeasance, or by his being convicted of a criminal offence which is of direct relevance to fitness and properness.

Readers should also note that SFC’s disciplinary actions against Chow and Choy are empowered by sections 194 to 196 of the Securities and Futures Ordinance, which provide that the SFC may revoke the license of a regulated person if he is found to be guilty of misconduct or is not fit and proper to be or to remain the same type of regulated person.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR50

9. Futures manipulator sentenced to community service

On 14 May 2014, the Eastern Magistrates’ Court today sentenced a futures trader, Mr Ernest Fan Kwong Hung, to 200 hours of community service and fined him HK$59,430 for manipulating the final calculated opening prices (COP) of index futures contracts in the futures market.

Background

Fan has been a licensed representative to carry on Type 1 (dealing in securities) and Type 2 (dealing in futures contracts) regulated activities under the Securities and Futures Ordinance and was accredited to Sanfull Securities Limited and Sanfull Futures Limited respectively since 20 November 2008.

Fan was charged with the offences of manipulating the final COP of Mini-Hang Seng Index futures contracts during the morning Pre-Market Opening Period on six trading days between 25 January 2010 and 31 March 2010 following an investigation by the Securities and Futures Commission (SFC).

A COP is calculated during the Pre-Market Opening Period and serves as the market opening price for the corresponding product. A COP will be calculated only if the highest bid price of the limit orders entered into the Automated Trading System of the Exchange (HKATS) is greater than or equal to the lowest ask price of the limit orders. If more than one price satisfies this criterion, the COP will be calculated according to the established formula set forth in Rule 4.8.4 of Trading Procedures for Stock Index Futures and Stock Index Options Traded on HKATS.

Conviction

The Eastern Magistrates’ Court found Fan guilty on 30 April 2014 of six counts of false trading. On each of the six trading days, Fan placed a series of limit and auction orders in the Mini-Hang Seng Index futures contracts during the morning Pre-Market Opening Period with the intention, or being reckless as to whether, they had the effect of creating a false or misleading appearance with respect to its final COP.

The Magistrate also made a cold shoulder order against Fan, prohibiting him from directly or indirectly, in any way acquire, dispose of or otherwise dealing in any futures contracts in Hang Seng Index or Mini-Hang Seng Index in the Pre-Market Opening Period for six months without the leave of the court in Hong Kong.

Comments

Market manipulation commonly includes the release of false or misleading information; the taking up of wash sales from one another within a certain trading period to increase the turnover of the stock or distort the actual share price; the placing of purchase orders at slightly higher prices or sale orders at lower prices to drive up or suppress the price of the securities when the market just opened (marking the open) and the drying up of stocks supply to exert undue upward price pressure on the stocks (cornering shares).

False trading takes place when a person does anything or causes anything to be done with the intention to create a false or misleading appearance of active trading in securities or futures contracts traded on a relevant recognized market, or by means of authorized automated trading services.

Readers should note that false trading is a form of market manipulation. It is a criminal offence and is a category of market misconduct under the SFO subject to severe punishment. Any SFC licensee found to have taken part in market manipulation may have their license suspended or revoked.

For details, please refer to the SFC article:

http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/doc?refNo=14PR55

The article is for general information purpose only and is not intended to constitute legal or other professional advice.

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