- SFC reprimands and fines JS Cresvale Securities HK$2.5 million
- SFC welcomes U.S. CFTC exemption for Hong Kong brokers to deal directly with U.S. customers
- Court grants order compelling attendance of SFC investigation interview
- SFC survey: Hong Kong hedge fund assets hit record high
- SFC obtains disqualification order against former executive director of Tack Fiori International Group Limited
- Court sets trial date for indictable prosecution for unlicensed dealing
- SFC reprimands and fines Merrill Lynch Far East Limited HK$2 million for regulatory breaches
- Takeovers Panel publishes reasons for breach of Takeovers Code by Chow Yei Ching, Joseph Leung Wing Kong and Oscar Chow Vee Tsung
On 26 March 2015, the Securities and Futures Commission (“SFC”) reprimanded and fined JS Cresvale Securities International Limited (“JS Cresvale Securities”) HK$2.5 million over serious deficiencies in relation to its sale of two unlisted investment products involving US$99 million between 2008 and 2010.
JS Cresvale Securities is licensed under the Securities and Futures Ordinance (“SFO”) to carry on Type 1 (dealing in securities) and Type 4 (advising on securities) regulated activities. JS Cresvale Securities’ license for Type 2 (dealing in futures contracts) regulated activity has been suspended since September 2014.
The disciplinary action followed an SFC investigation which found serious deficiencies in JS Cresvale Securities’ systems and controls for ensuring the suitability of the recommendations or solicitations it made to clients when selling the two products, namely, 浩騰科技信用連結債券 and 浩騰11海外可轉換公司債. The products were recommended and sold to 59 clients in 2008, 26 clients in 2009 and 4 clients in 2010.
Specifically, the SFC found that JS Cresvale Securities:
- Did not conduct any product due diligence or risk assessment on the products;
- Did not have complete risk profiles of its clients as no steps were taken to assess the clients’ risk tolerance levels;
- Had no systems and controls to guide its representatives to conduct proper suitability assessment when selling the products; and
- Did not maintain documentary records of the investment advice or recommendations given to its clients nor provide clients with a copy of the written advice.
In determining the penalty, the SFC took into account that:
- JS Cresvale Securities co-operated in resolving the disciplinary proceedings;
- It agreed to conduct an independent review of its systems and controls for distribution of unlisted investment products and to enhance its complaint handling procedures; and
- There is no evidence of client loss suffered from its distribution of the two unlisted products.
Readers should note that pursuant to General Principle 2 (diligence), paragraphs 3.4 (advice to clients: due skill, care and diligence) and 5.2 (know your client: reasonable advice) of the Code of Conduct, licensed corporations are required to ensure that, through the exercise of due diligence, the investment recommendations to clients are based on thorough analysis and are reasonable in all the circumstances. Further, paragraph VII(3) of, and paragraph 3 of the Appendix to, the Management, Supervision and Internal Control Guidelines for Persons Licensed by or Registered with the SFC provide that a licensed corporation in the business of offering investment advice should take steps to document and retain the reasons for its recommendations or advice given to the client and to implement special procedures to document (and provide a copy to the client) the rationale underlying investment advice rendered or recommendations made.
To view the Statement of Disciplinary Action issued by the SFC, please visit:
For details, please refer to:
2. SFC welcomes U.S. CFTC exemption for Hong Kong brokers to deal directly with U.S. customersOn 26 March 2015, the SFC welcomed the issuance of an order by the U.S. Commodity Futures Trading Commission (“CFTC”) permitting SFC-licensed corporations to deal directly with U.S. customers in relation to trading of futures or options products on exchanges under the SFC’s oversight without having to register as futures brokers in the U.S.
The CFTC is the regulatory body overseeing the U.S. futures and swaps markets including the regulation of intermediaries. The relevant order in this case was granted under CFTC’s Regulation 30.10.
The exchanges covered by the order include Hong Kong Futures Exchange Limited and non-U.S. exchanges authorized by the SFC under the SFO. Licensed corporations interested in exemption under the order which permits them to solicit and accept orders and funds directly from U.S. customers are required to submit applications with the U.S. National Futures Association via the SFC. Details of the application procedures will be announced in due course.
Further information on the CFTC order, please refer to the CFTC’s website:
For details, please refer to:
3. Court grants order compelling attendance of SFC investigation interviewOn 26 March 2015, the SFC obtained an order in the Court of First Instance (“CFI”) against Mr Joe Chong Wai Moon (“Mr Chong”), compelling him to attend an interview with the SFC in relation to investigations after he repeatedly failed to do so as required.
Between August and October 2013, Mr Chong rendered various excuses for his non-attendance after receiving five notices issued by the SFC to attend an interview and subsequently failed to attend the interview. In granting the order, the court was satisfied that Mr Chong has no reasonable excuse for not attending the interview.
Mr Chong was ordered to attend an interview with the SFC on a specified date and answer any questions relating to the investigations that the investigator may raise with him, and to give the investigator all assistance in connection with the investigations which he is reasonably able to give. He was also required to pay the costs of the SFC’s application to the court.
The notices were issued in relation to three ongoing investigations into suspected market manipulation and false or misleading representations being made in certain applications to the SFC.
Under sections 182 and 183 of the SFO, the SFC has a general power to investigate, amongst other things, possible breaches of the SFO, misfeasance and activities that are not in the public interest. Under those sections, the SFC may authorize an employee (or any other person with the consent of the Financial Secretary) to carry out an investigation. The person so authorized may investigate any person. A person under investigation is required to:
- Provide documents and explanations;
- Attend before the investigator to answer questions;
- Give the investigator all reasonable assistance;
- Support his evidence by making a statutory declaration; or
- Make a statutory declaration that he is unable to provide the evidence for reasons to be stated, if such is the case.
For details, please refer to:
4. SFC survey: Hong Kong hedge fund assets hit record highOn 30 March 2015, the SFC published the Report of the Survey on Hedge Fund activities of SFC-licensed Managers/Advisers stating that Hong Kong’s hedge fund AUM reached a record high in 2014.
The abovementioned report shows that as of 30 September 2014, hedge fund AUM in Hong Kong reached US$120.9 billion, an increase of 39% from the amount reported in the previous survey in September 2012.
The major findings are summarized below:
- The number of hedge funds managed by the SFC-licensed hedge fund managers has increased to 778 (15% increase from 676 two years ago);
- Hong Kong hedge fund assets were allocated mainly in the Asia Pacific region using equity long/short and multi-strategy, and of the total AUM, 63.9% was allocated to the Asia Pacific markets which included 31.7% allocated to Hong Kong and mainland China;
- 92% of hedge fund investors were from outside Hong Kong and most were institutional investors.
For the purpose of the survey, the term “hedge fund managers” includes those fund managers that manage hedge fund assets as well as those that advise hedge funds. The survey was sent to 401 SFC-licensed corporations which were identified as hedge fund managers as of 30 September 2014. They were asked to provide information and data about their hedge fund portfolios managed in Hong Kong as of that date. All licensed hedge fund managers participated in the survey.
For further details, please refer to:
On 30 March 2015, the SFC obtained a disqualification order in the CFI against Mr Lam Yick Sing (“Mr Lam”), a former executive director of Tack Fat Group International Limited (“Tack Fat” or the “Company”), now known as Tack Fiori International Group Limited.
On 14 March 2014, the SFC commenced proceedings to disqualify four former directors of the Company. In particular, the SFC alleged that:
- The Company proposed to acquire a 40% interest in a timber company in Cambodia, shortly before the Company was placed into provisional liquidation, falsely announcing that the vendor was an independent third party when in fact the transaction was a sham involving an undisclosed connected party.
- The Company failed to ensure shareholders were given all information they might reasonably expect in relation to various loan agreements entered into between the Company and various money lenders between June and July 2008, again shortly before the Company entered provisional liquidation. Some of these loan agreements involved the pledging of significant assets of the Company, which indicated a serious deterioration in the financial position of the Company.
- Again, shortly before the Company was placed into provisional liquidation, the Company allotted share options in respect of 40 million shares in the Company, which were converted without payment and sold for the benefit of the former chairman between June and July 2008, gaining an unfair advantage not only over other members of the Company but also the investing public, in particular approximately 110 counterparties. The former chairman possessed material non-public price sensitive information in respect of the Company and made a profit of approximately HK$20 million out of the information.
- The Directors failed to discharge their duties required of executive directors and manage the Company with the necessary degree of skill, care, diligence and competence as reasonably required.
On 9 October 2014, the SFC obtained a disqualification in the High Court against the former executive director, Mr Norman Ho Yik Kin (“Mr Ho”). Mr 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 today. In delivering his judgment, The Honourable Mr Justice Lam stated that Mr Ho was acting irresponsibly and with marked indifference to his duty as a director of Tack Fat, therefore a disqualification order for six years would be appropriate.
The disqualification order
As a result of the disqualification order, Mr Lam 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 27 March 2015.
The order was made after Mr Lam admitted that he:
- Failed to ensure that Tack Fat gave its shareholders all the information they might reasonably expect, and to comply with the disclosure requirements under the Listing Rules of the Stock Exchange of Hong Kong Limited;
- 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
- Was partly responsible for the business or affairs of Tack Fat having been so conducted.
In granting the order, the Honourable Mr Justice Lam said a six-year disqualification period was appropriate because Mr Lam was demonstrably lacking in diligence, competence and independence as a director, and had disregarded the responsibilities he owed to the Company and those who had interests in it.
The SFC’s Executive Director of Enforcement, Mr Mark Steward, said: “Lam’s misconduct was deplorable. His duty was to protect the interests of the Company and its shareholders; instead he betrayed them – to the financial detriment of both. The SFC will continue to take action to uphold appropriate standards of conduct expected from listed company directors.”
The SFC had earlier obtained a disqualification order against another former executive director of Tack Fat and was also seeking similar orders against two other former executive directors, including the former chairman and executive director, Mr Kwok Wing (“Mr Kwok”). Last week, Mr Kwok sought a stay of these proceedings pending the conclusion of criminal proceedings also arising from the affairs of Tack Fat but was refused by the CFI.
Readers should note that pursuant to 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 of 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 others, involving defalcation, fraud, misfeasance or other misconduct towards it or its members. To prevent this type of disciplinary action, licensed corporations or persons may consult external compliance firms such as CompliancePlus Consulting Limited, to implement extensive internal checks and procedures.
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On 31 March 2015, the District Court fixed a date for the trial of IPFUND Asset Management Limited (“IPFUND”) and Mr Ronald Sin Chung Yin after IPFUND and Sin pleaded not guilty to charges related to unlicensed dealing.
On 13 January 2015, the Eastern Magistrates’ Court granted an application by the Department of Justice (“DoJ”) to transfer to the District Court the first prosecution of a case for unlicensed dealings involving a collective investment scheme (“CIS”).
On 31 May 2014, the SFC commenced the criminal proceedings at the Eastern Magistrates’ Court against IPFUND and its sole director and shareholder Mr Ronald Sin Chung Yin. Both pleaded not guilty to four summonses on 3 July 2014. IPFUND and Sin were accused by the SFC of carrying on a business, or holding out as carrying on a business, in a regulated activity in dealing in securities without a licence in contravention of section 114 of the SFO. The securities in question are CIS.
The SFC alleged that between February 2011 and December 2011, IPFUND and Sin, both of whom have never been licensed by the SFC, offered and disposed of interests in 16 CIS to investors. IPFUND and Sin managed and controlled those CIS which were not authorized by the SFC. The funds contributed by the investors were allegedly pooled for use in purchasing commercial properties in Hong Kong. Upon the sale of those properties, part of the profit earned would be distributed among the investors in proportion to their contribution towards the purchase price, and IPFUND would receive consultancy fees based on profits earned from the trading of these commercial properties.
On 4 September 2014, the Eastern Magistrates’ Court gave directions to the SFC to consider whether it would be appropriate for the summonses to be tried in the District Court because of the complexity of the subject matter, the number of witnesses and the estimated length of the trial. The case was adjourned several times to the final date of 13 January 2015.
This is the first indictable prosecution for an offence under section 114 of the SFO, and will be prosecuted by the Prosecutions Division of the DoJ. The trial is set down to commence on 2 November 2015 for 12 days.
Specifically, IPFUND was charged with the offence of carrying on a business in a regulated activity, contrary to section 114(1)(a) and 114(8) of the SFO; alternatively, holding out as carrying on a business in a regulated activity, contrary to section 114(1)(b) and 114(8) of the SFO). Sin was charged with the offence of carrying on a business in a regulated activity, contrary to section 114(1)(a), 114(8) and 390(1) of the SFO; alternatively, holding out as carrying on a business in a regulated activity, contrary to section 114(1)(b), 114(8) and 390(1) of the SFO
Readers should note that section 114 states that, no person shall carry on a business in a regulated activity, or hold himself as carrying out a business in a regulated activity except for:
- A corporation licensed under section 116 or 117 for the regulated activity;
- An authorized financial institution registered under section 119 for the regulated activity;
- A person authorized under section 95(2) for the regulated activity;
- When a person is carrying out Type 8 regulated activity by reason only of carrying on one or more activities specified in Part 3 of Schedule 5 to the SFO; or
- Where in relation to Type 8 regulated activity, a person is only providing financial accommodation and reasonably believes that the financial accommodation is not to be used to facilitate (a) the acquisition of securities listed on a stock market (whether a recognized stock market or any other stock market outside Hong Kong), or (b) the continued holding of such securities.
Further, section 390 SFO states that where the commission of an offence under the SFO by a corporation is proved to have been aided, abetted, counselled, procured or induced by, or committed with the consent or connivance of, or attributable to any recklessness on the part of, any officer of the corporation, or any person who was purporting to act in any such capacity, that person, as well as the corporation, is guilty of the offence and is liable to be proceeded against.Therefore, readers should be aware that all relevant licenses are applied for. To avoid doubt, readers may find it useful to consult external compliance firms with extensive expertise in licensing such as CompliancePlus Consulting Limited.
For details, please refer to:
On 1 April 2015, the SFC reprimanded and fined Merrill Lynch Far East Limited (“Merrill Lynch Far East”) HK$2 million for regulatory breaches and internal control failings relating to position limit failures.
Merrill Lynch Far East is a licensed corporation under the SFO to carry on Type 1 (dealing in securities), Type 2 (dealing in futures contracts), Type 4 (advising on securities), Type 6 (advising on corporate finance) and Type 7 (providing automated trading services) regulated activities.The abovementioned decision follows a SFC investigation into the holding of Merrill Lynch International (“MLI”) in 14,181 contracts in Hang Seng China Enterprises Index (“HSCEI”) on 30 May 2013 in breach of the prescribed position limit of 12,000 contracts. Merrill Lynch Far East controlled the trading or part of the trading for MLI and had discretion to make trading decisions for MLI for hedging at the material time.
The SFC found that Merrill Lynch Far East failed to implement adequate internal controls to monitor MLI’s positions in HSCEI futures and options contracts to ensure compliance with the prescribed position limit. Specifically, although Merrill Lynch Far East had a system in place to alert traders to reduce MLI’s position when its aggregate position reached 80% of the prescribed position limit, the system failed to capture MLI’s expiring short positions and their potential impact on the prescribed position limit. This resulted in Merrill Lynch Far East’s failure to detect the expiry of a large short position in HSCEI futures contracts on 30 May 2013 and the corresponding increase in MLI’s long position which contributed directly to the position limit breach.
In determining the penalty, the SFC took into account Merrill Lynch Far East’s co-operation and that it had taken steps to strengthen its internal controls on monitoring position limits.
Readers should note that pursuant to Rule 4(1) Securities and Futures (Contracts Limited and Reportable Positions) Rules (the “Rules”), no person, except persons authorized by the SFC or the Hong Kong Exchanges and Clearing Limited, may hold or control futures contracts or stock options contracts in excess of the prescribed limit. Further, Section 5(a) of the Rules provides that the limit on the number of contracts that may be held or controlled, in the case of futures contracts, is specified in Schedule 1 of the Rules. Schedule 1 of the Rules supplements that the prescribed limit for HSCEI contracts is 12,000 long or short position delta for all contract months combined.
Additionally, General Principle 7 of the Code of Conduct for Persons Licensed by or Registered with the Securities and Futures Commission (the “Code of Conduct”) requires a licensed person to comply with all regulatory requirements applicable to the conduct of its business activities. Paragraph 12.1 of the Code of Conduct further requires a licensed person to comply with and maintain appropriate measures to ensure compliance with all applicable regulatory law, rules, regulations and codes administered or issued by the SFC, exchanges, clearing houses and other regulatory authorities which apply to the licensed person. It is therefore prudent for licensed persons and corporations to implement extensive internal policies and procedures.
For a copy of the SFC’s Statement of Disciplinary Action, please visit:
For further details, please refer to:
On 16 April 2015, the Takeovers and Mergers Panel (“Takeovers Panel”) published its written decision setting out the reasons for finding Mr Chow Yei Ching (“Mr Chow Y.C.”), Mr Oscar Chow Vee Tsung (“Mr Chow V.T.”) and Mr Joseph Leung Wing Kong (“Mr Kong”) in breach of The Codes on Takeovers and Mergers and Share Repurchases (the “Takeovers Code”). Background
On 20 November 2013, the SFC commenced disciplinary proceedings before the Takeovers Panel against the chairman of Chevalier Group, Mr Chow Y.C., Mr Chow V.T., and Mr Kong over a serious breach of the Takeovers Code. The SFC alleged that the three actively co-operated to assist the late Ms Nina Kung (“Ms Kung”) to obtain or consolidate control of ENM Holdings Limited (“ENM”) and avoid the triggering of a mandatory general offer under the Takeovers Code.
At the relevant time, Ms Kung was the largest shareholder of ENM. She was also the chairwoman and the sole beneficial owner of the Chinachem Group. Mr Chow Y.C., Mr Chow V.T., and Mr Kong were closely connected to Ms Kung. Mr Chow Y.C. had known Ms Kung as a close friend and business partner with numerous commercial dealings for more than 40 years. Mr Chow V.T. is alleged to have acted in concert with his father, Mr Chow Y.C., under the Takeovers Code. Mr Kong was a trusted friend and close business associate of Ms Kung. He has been working at the Chinachem Group as a director since April 1987.
Between 2000 and 2002, Mr Chow Y.C. acquired a total of 160 million shares of ENM (approximately 9.69% of ENM’s issued share capital) on Ms Kung’s behalf and at her request. Mr Chow Y.C. paid for the purchase of the ENM shares and was subsequently reimbursed by Ms Kung. The reimbursement was handled by Mr Chow V.T. and Mr Kong. Mr Chow Y.C. held the ENM shares under four British Virgin Island (“BVI”) companies he owned through the issuance of bearer shares until December 2009. To comply with the changes to BVI law requiring greater transparency in the ownership of bearer shares, Mr Chow Y.C. arranged for the ownership of the 160 million ENM shares to be split equally between one of his daughters and Mr Chow V.T. in December 2009.
Since the Takeovers Code treats persons acting in concert as being the equivalent of a single person and aggregates their shareholdings, Mr Chow Y.C.’s acquisitions increased the collective shareholding of the concert group in ENM from 34.64% to 44.33%. As a result, the mandatory general offer obligation under the Takeovers Code was triggered. However, none of the share acquisitions in ENM by Mr Chow Y.C. on Ms Kung’s behalf were publicly disclosed and remained undisclosed for a protracted period. This type of arrangement, which is commonly known as “warehousing”, enabled Ms Kung to secretly hold the ENM shares and avoid an obligation under the Takeovers Code to make a general offer. In consequence ENM shareholders were deprived of their fundamental right to receive a general offer to buy their shares. Mr Chow Y.C. brought the matter to the SFC’s attention after receiving a letter in late April 2012 from the joint administrators of Ms Kung’s estate making enquiries about shares of ENM that belonged to the estate.
On 13 March 2015, the Takeovers Panel found that Mr Chow Y.C., Mr Kong and Mr Chow V.T. breached the mandatory offer requirement under the Takeovers Code. It was announced on that date that written reasons would be issued in due course by the Takeovers Panel.
As such, on 16 April 2015, the abovementioned written reasons were published by the Takeovers Panel. The Takeovers Panel invited submissions from the parties on sanctions to be imposed and will make a decision in due course.
Readers should note that Rule 26 is the overriding rule in the Takeovers Code and provides the circumstances in which a mandatory general offer must be made. This reflects General Principle 1 of the Takeovers Code and underpins the requirement for equal treatment of shareholders. Failure to make an offer that is required to be made under Rule 26.1 constitutes a serious breach of the Takeovers Code. Rule 26.1 (in force in December 2000) required a mandatory general offer to be made for all the shares in the company if a person or group of persons acting in concert acquired shares resulting in either:
- The person or concert group collectively holding 35% or more of the voting rights (known as the “trigger”). The trigger threshold was reduced to 30% on 19 October 2001; or
- The person or concert group collectively holding between 35% and 50% of the shares and then going on to acquire, either individually or as a group, more than 5% in any 12 month period (known as the “creeper”). The creeper threshold was reduced to 2% on 19 October 2001.
Readers should therefore have this provision in mind when acquiring voting rights and/or shares to avoid breaching the Takeovers Code. It should also be noted that licensed persons may be acting in concert, in which case all the shares held are aggregated to calculate whether the threshold has been triggered.
To view the Takeovers Panel’s written decision, please refer to:
For further details, please refer to:
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