SFC v Styland

SFC challenges the senior management of another listed company by commencing proceedings in the High Court against the former chairman, a former executive director, and two current executive directors of Styland Holdings Ltd. Styland, well-known to many retail investors, was listed in 1991. The group's business includes securities dealing, property investment, general trading and infrastructure development. SFC ordered suspension of trading in Styland's shares on 23 Dec 2002. Trading resumed in Jun 2003 but was suspended again at Styland's request on 21 Apr 2004 pending an announcement of a possible rights issue. Trading remains suspended.

SFC alleges the four directors breached their duties to the company resulting in Styland incurring substantial losses in a number of transactions. SFC is seeking orders that the four directors (or any of them):

• be disqualified as company directors; and
• pay compensation to Styland for losses allegedly caused by their misconduct.

The four directors are former chairman, Mr Kenneth Cheung Chi Shing, current executive directors, Ms Yvonne Yeung Han Yi and Ms Miranda Chan Chi Mei and former executive director Mr Steven Li Wang Tai (the four directors).

SFC also alleges that Cheung breached his duty to the company in a number of transactions in which he is alleged to have received (directly or indirectly) financial benefits totaling $79m. These transactions should have been disclosed to shareholders (and the market) and required shareholder approval which was not sought or given. SFC also alleges Yeung breached her duty through connected transactions not authorised by the company's shareholders (which should have been authorised by shareholders), receiving financial benefits totaling $6.95m.

This is the first time SFC has commenced action seeking compensation for a listed company or sought orders for the commencement of compensation proceedings by the listed company against company directors for alleged misconduct. This action is concerned with three important issues:

1. The obligations of listed company directors to ensure shareholders are given a proper opportunity to scrutinise transactions that require their authorisation;
2. The extent to which Hong Kong law recognises the special responsibilities entrusted to a chairman of a listed company; and
3. The ambit of the court's jurisdiction under S.214 of SFO to order compensation to be paid to a listed company.

If SFC could win this case, then the perceived protection of investors in HK listed companies would be better.

Court Order Against Ex-CEO of Wah Sang

Last week SFC commenced proceedings in the High Court against Mr Shum Ka Sang, the former chairman, CEO and executive director of Wah Sang Gas Holdings Limited (Wah Sang Gas), and one other former company director seeking an order to disqualify them from acting as company directors or being involved, directly or indirectly, in the management of any corporation for a period to be specified by the court. Listed in GEM since March 2000, the company is engaged principally in providing gas connection service through its subsidiaries on the Mainland.

Under S.214 of SFO ("Remedies in case of unfair prejudice, etc. to interests of members of listed corporations, etc."), the court may make such orders for up to 15 years if it finds those persons are wholly or partly responsible for the company's affairs being conducted in a manner involving defalcation, fraud or other misconduct.

These proceedings follow an SFC investigation of the company into suspicions that the company's accounts had been falsified and asset values were overstated for the financial year ended 31 Mar 2004. On SFC's order, the company's shares were suspended from trading on 6 Apr 2004.

SFC alleges that Shum, who resigned as a director of the company on 22 Oct 2007, knew or was involved in falsifying the accounts or was otherwise responsible by failing to exercise reasonable skill, care and diligence and to act in the company's best interests. The same allegations are also made against another former director, who is named in the proceedings but who has not yet been located and notified of these proceedings.

An independent audit led to the reconstruction of the company's accounts. In new financial results finally filed with SEHK on 11 Jul 2007 (following new management being appointed to run the company), the company reported a reduction in the value of net assets as at 31 Mar 2004 of approximately $720m.

Trading in Wah Sang Gas shares remains suspended and resumption of trading is subject to SFC's approval. The company announced to the market on 29 May 2008 a Restructuring Proposal, which will be the subject of a Circular that it must issue to shareholders no later than 30 Sep 2008.

Once again SFC has demonstrated that it has more teeth to bite the wrongdoers of listed companies than SEHK.

SFC Quarterly Report (2Q/2008)

Last week SFC released the first Quarterly Report for the second quarter of 2008 to enhance its transparency and accountability of its operation. The following activities of SFC during this quarter highlighted in the Report are remarkable:

• SFC is concentrating on completing investigations within 7 months and it did so in 76% of all completed investigations. It seems that Enforcement has become more efficient now.
• SFC has sent a strong message to deter market misconduct. It used all the tools available to tackle insider dealing (e.g. sought an interim worldwide injunction to freeze assets of suspected insider dealers in one case).
• SFC has encouraged good compliance and deterred wrongdoing by reaching agreements with ICEA and Core Pacific-Yamaichi such that repeated material breaches of the same kind would trigger an accelerated enforcement response.
• SFC received 329 complaints, compared with 258 in the same period of last year. I wonder whether the significant increase in complaint figure was caused by "accumulators".
• SFC issued a joint consultation paper with HKEx to seek public feedback on allowing paper application forms to be handed out for public offers of shares, debentures and authorized CISs, without also having to hand out paper offer documents if electronic offer documents are available from websites. Comments are being reviewed by SFC. Given that most of the HK people have regular access to the internet, this proposal seems highly feasible.
• Companies can now list in HK by way of depository receipt after SFC approved proposed changes to the main board listing rules. SFC has also approved the re-positioning of the GEM board as a secondary board and a stepping stone to the main board. I doubt if this could "rescue" the GEM board if it is labelled as a platform for "inferior" companies.
• SFC approved HKEx's proposal to introduce gold futures in HK. Trading of gold futures is expected to start in Oct 2008. Would one more "gambling" tool be made available to the retail investors?
• SFC also approved HKEx's proposed amendments to relax the tick rule. It is said the current stock market has suffered from substantial short selling activities. Would relaxation of the tick rule worsen the situation?
• Two teams have been assigned to handle licensing applications by Mainland fund managers. Would SFC offer any "special treatment" to them?

The staff length of SFC has not increased when compared with one year ago. It seems that the workloads of SFC staff have become heavier.

Shortage in Compliance Profession

During this sluggish financial market environment, does the excess demand for compliance practitioners remain? Recently HKSI released a research report titled "Grooming of Talent in the Financial Industry", which is an industry research conducted on the manpower gap in the financial sector. I've got the following insights relevant to the compliance profession from this report:

• Competition for talent is keen in the financial industry, though the shortage has been relieved after the sub-prime crisis. So this year the turnover rate of compliance officers has been lower.
• There is an acute shortage in compliance because this area requires specialized knowledge that can't be easily nurtured through universities. Many firms, particularly smaller companies, prefer not to hire inexperienced people. They are willing to train existing staff but less willing to train new hands from scratch. It follows that fresh graduates or laymen may encounter barriers to entry for the compliance profession.
• Two rapid areas of growth are private banking and wealth management. These areas require people with good interpersonal skills and other soft skills as much as hard skills. This happens to be the area in which Hong Kong's new university graduates appear to be the weakest. Soft skills are not only important for relationship managers but also for compliance officers.
• There is a big gap between self-rated ability and employer-rated ability. While employers are generally satisfied with employees' technical skills, they are not so satisfied with their general lack of creativity, problem solving skills, management skills, and languages skills. Compliance officers spending time only on technical knowledge may lose competiveness in the future.
• Many employees have a strong desire to pursue a career in the financial industry and have the motivation to learn. But they will need to be more proactive, instead of being reactive. They should also develop a global perspective and have a good sense about the financial markets. Some compliance officers, especially those trained up by a regulatory body, have remain bureaucratic and narrow-minded in facing with the rapid changes of the world.

Mis-Pricing of Asset-Backed Securities

FSA recently fined the UK operations of Credit Suisse (the subsidiaries) £5.6 million for breaching FSA Principles 2 and 3 by failing to conduct their business with due skill, care and diligence and failing to organise and control their business effectively.

Credit Suisse announced its financial results for 2007 on 12 Feb 2008. On 19 Feb 2008, Credit Suisse announced that it had identified mismarking and pricing errors by a small number of traders and that it was repricing certain asset-backed securities. The re-pricing involved a write down of revenues by US$2.65 billion. In relation to the write down, Credit Suisse disclosed in its 2007 Annual report in Mar 2008 that a SOX 404 material weakness had existed in its internal controls over financial reporting as at 31 Dec 2007.

The breaches related to the pricing of certain asset-backed securities held by the Structured Credit Group (SCG) within Credit Suisse's Investment Banking Division. The principal activities of the SCG are structuring and issuing securities based on underlying pools of assets, including CDOs and credit correlation trades. These are often highly complex, high risk, leveraged products. The subsidiaries were responsible for ensuring the adequacy and effective operation of their systems and controls, including those provided in part by other companies within the group.

Credit Suisse's senior management commissioned a detailed review of the causes of the write down which identified serious failings in the design, implementation, operation and management of controls over the SCG. The principal failings identified in that review were set out as follows:

• The systems and controls of the subsidiaries for the supervision of traders in the SCG and for the pricing of highly complex products within the SCG were not effective and were not applied consistently. The systems and controls in place, such as a complex matrix structure for the supervision of traders in the SCG, were too complicated and fragmented. Some individuals within control functions lacked a clear understanding of the responsibilities that had been assigned to them.
• There were failures to respond adequately to a number of warning signals or "red flags" and to translate identified concerns about price testing variances in CDO positions within the SCG into tangible or timely actions.
• Certain personnel within control functions with responsibility for recording or checking prices were overly deferential in challenging certain SCG traders and do not appear to have had sufficient seniority or management support to challenge effectively.
• Undue reliance was placed on the technical ability and revenue contribution of certain front office staff, who were highly influential in down-playing price testing variances and in influencing the price testing methodology used, and did not take appropriate action to control and manage such staff effectively.
• Certain control functions failed to escalate in a timely manner price testing variances that were identified, owing to issues such as the complex booking structure used for the CDO trading business, a lack of effective supervision over price verification processes and an over-reliance on assertions made by certain front office staff.

One of the key lessons learnt from this case is the over-reliance on front office staff because they have more technical knowledge of complex deals than the control function staff. As a matter of risk management, firms may assign some front office staff to work at control functions for a period of time to bridge the knowledge gap. Of course front office staff may not always be willing to sacrifice their high pay to become a "coach", but how about such job rotation is arranged during a bear market (like the present)?

Exempt Principal Trader

Recently the Takerovers and Mergers Panel has reported a decision relating to Lehman Brothers Asia Ltd, which cast some light on the issues of Chinese Walls.

From April 2008, Lehman worked specifically on a proposal which would result in the privatization of CITIC International Financial Holdings Ltd ("CIFH") (183.hk) listed on SEHK. On 3 Jun 2008, CIFH announced that it had received a proposal from Gloryshare Investment Ltd, a wholly-owned subsidiary of the CITIC group, regarding the proposed privatization. It envisaged that Banco Bilbao Vizcaya Argentaria S.A. ("BBVA"), presently a substantial shareholder of CIFH, would increase its shareholding in CIFH from 15% to 30%, the balance being held by Gloryshare or members of its group.

By 10 Jun 2008 Lehman was formally retained by Gloryshare as its adviser and on that date Glorysky and CIFH jointly announced the terms of the privatization proposal. In summary, members of CIFH will receive, in consideration for the cancellation of their shares, one "H" share of China CITIC Bank Corporation Ltd ("CNCB") (998.hk) and HK$1.46 in cash for every share in CIFH. In anticipation of resumption of trading on the following day, the Lehman group instituted a restriction on all proprietary trading, but not agency trading, in the shares in CIFH and CNCB.

However, on 11 Jun 2008 the Lehman group:

• purchased 31,000 shares in CIFH for the purpose of rebalancing a hedge against existing swaps with a client on the MSCI HK Index;
• purchased 179,000 shares in CIFH for the purpose of unwinding a short position resulting from OTC sales to clients; and
• purchased 72,000 shares in CIFH for the purpose of executing a "Lehman Performance Swap" for a client through its direct market access (DMA) system.

On 13 Jun 2008 the Lehman group purchased a further 41,000 shares in CIFH for the purpose of covering a short position created as a result of a client facilitation trade. HK$6.27 was the highest price paid by the Lehman group for purchases of shares in CIFH during the offer period. When the Compliance and Control divisions of the Lehman group were aware of these purchases, they immediately informed SFC.

Under the Takeovers Code, the Lehman group is treated as a person "acting in concert". The Code places strict disciplines on a financial adviser to an offeror in respect of in shares of the offeree. In the case of a securities exchange offer, purchases made by the Lehman group above the offer price will result in that offer being accompanied by a full cash alternative at the highest price paid. This would increase the cash element of the offer from HK$2.6 bn to between HK$10.92 bn and HK$11.16 bn!

Nevertheless, the Code recognizes that for a multi-service financial group the disciplines it imposes on a financial adviser and its group may have an impact on other activities which are unrelated to the provision of advice to an offeror. Therefore the Code contains provisions for exemptions for principal traders. But the Lehman group failed to apply for the exempt principal trader status.

The Panel finally decided to exercise its discretion to waive the requirement for a cash alternative for the following reasons:

• the size of the purchases were very small relative to the size of the offer and the total volume of shares in CIFH traded;
• the purchases had a negligible impact on public shareholders;
• the imposition of the cash alternative requirement would have a substantial and adverse impact on Gloryshare who had no knowledge of the purchases; and
• the remedy would be disproportionate to the scale of the purchases if the primary obligation for the offer fall on the Lehman group.

If the Panel did not give a leeway to this case, then I think the Lehman group would get into great trouble!

Socially Responsible Investing

Socially responsible investing (SRI) describes an investment strategy which seeks to balance the pursuit of financial return and social merit. In general, socially responsible investors favor corporates that promote environmental protection, consumer protection, human rights, etc., while avoiding businesses involving in alcohol, tobacco, gambling, weapons, etc. Some investment funds (e.g. Islamic fund) are characterized by SRI, but we seldom hear about incidents of serious breaches of SRI rules.

SEC recently charged New Hampshire-based Pax World Management Corp. with violating investment restrictions in socially responsible mutual funds that investors were told would not contain securities issued by companies involved with producing weapons, alcohol, tobacco or gambling products.

Pax World, the SEC-registered investment adviser to several socially responsible mutual funds, including the Pax World Growth Fund and Pax World High Yield Fund, purchased at least 10 securities that the Funds' SRI restrictions prohibited them from buying — contrary to representations it made to investors and the boards of the Funds. Pax World agreed to settle SEC's charges and was ordered to pay a penalty of US$500,000.

Pax World violated the Funds' SRI restrictions by making purchases in the securities of companies that derived revenue from the manufacture of alcohol or gambling products, derived more than 5% of their revenue from contracts with the U.S. Department of Defense, or failed to satisfy the Funds' environmental or labor standards. Pax World Funds held at least one security that violated their SRI restrictions at all times from 2001 through early 2006. For example:

• In 2003, Pax World purchased for the Growth Fund securities issued by an oil and gas exploration company that had failed its three most recent screens.
• In 2004, Pax World purchased for the High Yield Fund securities issued by a conglomerate primarily engaged in the shipping industry but which derived revenue from gambling and the manufacture of liquor.

Pax World failed to consistently follow its own internal SRI-related policies and procedures that required that all new securities be screened by Pax World's Social Research Department prior to purchase to ensure compliance with the funds' SRI disclosures. Pax World failed to screen 8% of all new security purchases from 2001 to 2005.

SRI funds are surging in Asia and thus SRI compliance monitoring would become a new agenda to the compliance function.