Fraudulent
securities market misconduct is a special kind of fraud causing diffused damage
across a wide spectrum of interests and persons and thus demands remedies
beyond general deterrence, said Hong Kong Securities and Futures Enforcement
Director Mark Steward. In remarks at an Asia Pacific Summit on fraud and
corruption, he said that the prescription for tackling securities fraud on the market
requires broad civil and criminal remedies to identify wrongdoers, chase down
assets and proceeds, identify the nature and quantify the extent of damage or
loss, identify victims, and secure remedial outcomes as well as ensure that those
who perpetrate and assist in fraud and misconduct, including those who help to
hide it from detection, are made to pay for the costs of rectification.
Criminal
prosecution of perpetrators, where appropriate, is by no means last but it
ought not to be the only measure. The need for civil remedies is also necessary
because criminal sanctions are not always available especially if perpetrators
are not in the jurisdiction or cannot be brought into the jurisdiction. This is a real issue in a market as
international as Hong Kong ’s, he noted.
General
deterrence alone is not enough, he explained, because, unlike the theft of
valuable property, the damage caused by market misconduct fraud may not even be
detectable. Or if there is loss, its
cause in fraud is unlikely to be discernible.
And damage may well continue to impair the investment. That is why
identifying the nature and extent of damage caused by fraud is a necessary
component of any anti-fraud strategy.
According
to the Director, there are at three distinct components to market fraud. First,
market misconduct is perpetrated almost anonymously by market participants
whose identities are shielded from other market participants by the automated
matching systems of the exchanges. A second related distinction is the anonymity
of the victims, which makes the problem of fraud in the markets an acute one. A
third distinction is the way market fraud undermines the market’s singular
function as a place where reliable
prices are set, a storehouse of value for savings and investments and a place
upholding high standards of fairness. Market
misconduct fraud prejudices these functions and impairs the confidence needed
to support them, he observed, and may also give rise to tangible losses to innocent
investors.
Given
the nature of market misconduct, the Commission is deeply engaged in not only
sending deterrent messages, he emphasized, but also in remedying the
consequences of securities market fraud and misconduct on the well-being of the
market’s important functions and to protecting the interests of all market
participants.
This means that, in tandem with traditional deterrent remedies, the
SFC is actively pursuing civil sanctions to tackle, not only the wrongdoer, but
also the consequences of the wrongdoing so that the reputation of the market as
a safe and fair place and a reliable guide to price and value can be restored.
Turning
to specific actions, the Director noted that the Hong Kong Court of Appeal recently
ruled that the Court of First Instance, in the exercise of its civil
jurisdiction, can determine whether a person has contravened a market
misconduct provision and that the function of making these types of findings is
not the sole preserve of a criminal court or the Market Misconduct
Tribunal. The defendant in that case, a New York based hedge
fund, is appealing this decision to the Court of Final Appeal. The Commission is confident the Court of
Appeal decision will be upheld.
Another
action recently reached what the Director called ``a milestone conclusion.’’ The
action was to freeze the IPO proceeds of a Cayman Islands
entity with a Mainland business, listed in late 2009 raising approximately $1
billion in capital from both institutional and retail investors. It had no Hong Kong
resident directors, said the Director, and is controlled by Taiwanese
interests. The SFC was concerned that a number of statements made in its IPO
prospectus were not true.
The
initial action led to orders freezing approximately $832 million which derived
from subscriptions to the IPO prospectus. The Commission then alleged the IPO
prospectus included false statements and that the company’s turnover,
profitability and cash and cash equivalent balances were grossly overstated in
the IPO prospectus. The SFC initiated action to recover the balance and to
obtain orders requiring the company to repurchase shares issued or bought by
the public shareholders.
After
the trial started, the company conceded that its prospectus contained
materially false or misleading statements and acknowledged that it contravened
section 298 of the Securities and Futures Ordinance, which prohibits the
disclosure of information likely to induce a person to subscribe for or
purchase shares if the information is materially false and the person knows or
is reckless as to whether the information is false. It is a market misconduct provision, noted
the Director.
The
company has also agreed to pay the sum of approximately $197 million into court
so that, together with the $832 million, there is a total of a little over $1
billion to fund a full repurchase offer to all public shareholders,
approximately 7,700 investors, at the suspension price.
This
outcome, once executed and accepted by the shareholders, said the Director, will
effectively repair the damage caused to those shareholders who were in no
position to be able to detect the false information in the prospectus for
themselves and who were victims. Under Commission remedial measures, the
company will be obliged to return all of the paid up capital it received from
its public shareholders as a consequence of the false statements contained in
its prospectus at its last traded price.