Archive for month: May, 2015

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1.  SFC reprimands and fines JS Cresvale Securities HK$2.5 million

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.

Background

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.

Comment

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.

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.

Background

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.

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.

Background

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.

The Order

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.

Comment

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.

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.

Background

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.

As such, the SFC sought orders that the former chairman repays to the Company or other entities as the court thinks fit HK$26 million, being the subscription price of the 40 million shares in the Company allotted to his nominees, and/or accounts for any profits he has made through the trading of those shares.

Mr Lam also admitted that he signed documents pledging the Company’s and subsidiary’s assets to secure loans to related parties which were improperly hidden from shareholders. He further signed attendance sheets for two board meetings in which Tack Fat approved a sham transaction involving an undisclosed connected party in an acquisition of 40% of a Cambodian timber company. Mr Lam further admitted that he did not know any information about the vendor or other details of the transaction. He conceded that he only did what he was told without any due exercise of independent commercial judgement nor was he clear on the duties of disclosure by a listed company.

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.

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.

Comment

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.

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.

Comment

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:

1. 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
2. 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.

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