Shum Kin Yee v. Dbs Bank Hong Kong Ltd
Read the full judgment text of DCCJ 1726/2011 on BabelCite. This District Court judgment was delivered on 31 July 2013.
1. The worldwide financial crisis following the collapse of Lehman Brothers in the United States in 2008 needs no introduction. The plaintiff (“ Shum ”) was an investor who suffered from its aftermath. He now claims for the loss of his investment in a financial product known as Series 74 Hong Kong Dollar Callable Credit-Linked Note (“ the Note ”) against the defendant (“ DBSHK ”). The complaint is essentially mis-selling of the Note to him by DBSHK in Hong Kong in May 2007.
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DCCJ 1726/2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 1726 OF 2011 ________________________
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________________________ J U D G M E N T ________________________ 1.The worldwide financial crisis following the collapse of Lehman Brothers in the United States in 2008 needs no introduction. The plaintiff (“Shum”) was an investor who suffered from its aftermath. He now claims for the loss of his investment in a financial product known as Series 74 Hong Kong Dollar Callable Credit-Linked Note (“the Note”) against the defendant (“DBSHK”). The complaint is essentially mis-selling of the Note to him by DBSHK in Hong Kong in May 2007. 2.Shum reads and writes English; and most of the documents were in English. To facilitate Shum, the trial was conducted in both languages with the medium in court predominantly Chinese. THE NOTE 3.In early 2007, Constellation Investment Limited (“CIL”) issued various series of credit-linked notes including Series 74, ie the Note. DBS Bank Ltd in Singapore (“DBS”) was the arranger. The Note, amongst other series, was described as structured retail note and distributed through various retail banks in Hong Kong to the public at the material time. DBSHK was one of those distributing banks. 4.The Note, among other series, was credit-linked to a basket of 8 reference entities, which were rated AAA class by the 3 major rating agencies, namely, Standard & Poor, Moody’s and Fitch, as at the time of the distribution, ie April 2007. In the order of their credit ratings, they consisted of:
5.Essentially the investors in the Note, for the projected return, took the risk that none of the reference entities would suffer what was known as a credit event. A credit event included:
The notes were secured by collateral and swap agreements that enabled the issuer to meet its payment obligation under the notes. 6.The maturity date of the Note was expected to be 23 May 2012. A potential return of 5.2% per annum in the first 4 years and 6% per annum in the subsequent 1 year was projected. If no credit event or early redemption event or event of default occurred, the Note would be redeemable at 100% principal amount on the maturity date. If a credit event occurred to a reference entity, the redemption value would be substantially less than the principal amount. SHUM 7.Shum had been a customer of the DBSHK branch at Metro Plaza at Tseung Kwan O (“the Branch”) before the transaction involving the Note. On 12 December 2005, Shum opened a packaged account there. In his application form for opening the account, he revealed that he was born in 1963 and a university graduate. In court, he confirmed that he has acquired the qualification of certified public accountant. He was then working as a full-time senior financial manager for EXCEL HK Ltd. 8.On 24 July 2006, Shum visited the Branch and completed an Investment Profiling Questionnaire (“IPQ”) with the assistance of relationship manager Ms But (“But”). The IPQ gave the following profile of Shum as an investor:
9.Shum was thus profiled as a growth type of investor with a medium to high risk tolerance. By signing the IPQ, Shum declared his acceptance such profiling based on his own judgment. 10.At the time when he went to the Branch on 5 May 2007, he was working as the financial controller of DHL Logistics, which, according to him in court, was the same group that he had been working for as before. SUBSCRIPTION TO THE NOTE 11.In court, he explained that he visited the Branch on 5 May 2007, after having seen the advertisement in respect of the distribution of the series of notes. There is dispute as to whether he also met with But on that occasion; but it is common ground that he did meet another relationship manager at the Branch, Ms Choy (“Choy”). 12.At the trial, both But and Choy gave evidence for DBSHK. By then, Choy was no longer an employee of DBSHK. 13.Back to 5 May 2007, Choy completed an investment Products Consolidated Application Form (“the Application Form”) and a Callable Credit-linked Notes Order Form (“the Order Form”) with Shum on that occasion. It was by these forms Shum contracted to subscribe for the Note. The principal amount of the Notes, and thus the application amount, was HK$690,000. Shum signed both documents before leaving the Branch. The forms were printed in Chinese (but the corresponding English versions were produced as well for the purpose of the trial). THE COMMENCEMENT OF ACTION 14.The bankruptcy of Lehman Brothers in September 2008 constituted a credit event to this reference entity of the Note. This, as mentioned, triggered the early redemption of the Note and at nil value. Since then, Shum had made enquiries and eventually complaint to DBSHK as well as various authorities about the loss of his investment. 15.In 2011, Shum commenced the present action. 16.In his statement of claim, Shum contends that Choy represented that the Note was low risk. It will be seen below that this was in line with DBSHK’s categorisation of the risk level of such investment, namely low to medium risk. He also set out his understanding of the advertisement brochure, which is understood to be referring to the sales pamphlet (“the Pamphlet”) and the issue prospectus (“the Issue Prospectus”). Shum claims damages representing the sum of HK$690,000 that he invested on the following grounds:
17.In defence, DBSHK contends that it was both But and Choy who served Shum at the Branch on the material day. It was But who explained to him the features of the Note with reference to the terms of both the Pamphlet and the Issue Prospectus. Despite But’s suggestion that he should consider diversifying his investment into other products, Shum decided to invest in the Note. Choy then took him through the contents of the Application Form and the Order Form before he signed them to confirm his order. 18.DBSHK contends that the relationship between the bank and Shum was at all material times governed by the terms of the documents signed by Shum and the Investment Products Consolidated Terms and Conditions (“the Consolidated Terms”). 19.DBSHK also raises the issue of causation. It contends that it was not the alleged misrepresentation or the subscription of the Note, but the adverse market conditions prevailing around the time of the collapse of Lehman Brothers in September 2008, that caused Shum’s loss. 20.DBSHK also contends that the collapse of Lehman Brothers and the resultant substantial fall in the value of the Note were not reasonably foreseeable at the time when Shum subscribed to the Note. Therefore the loss of Shum is too remoteness to be recoverable in any event. 21.Shum has since filed his reply and from time to time documents either for the purpose of reiterating his case or in support of his contentions. New points were made as well. By the time of closing submission, he has expanded his contentions to become that what happened to him was no different from a set up or fraud by DBSHK. 22.As far as one discern, Shum has the following major complaints:
23.Whilst the court may still try to deal with the points raised by Shum as far as they were argued, I indicated when the trial began that the bottom line must be that the parties are primarily bound by their pleaded cases. WHAT HAPPENED ON 5 MAY 2007 24.Shum is adamant that he met only Choy at the Branch on 5 May 2007. But and Choy said to the contrary. According to them, Choy indeed greeted Shum when he came armed with an advertisement of the series of note issued by CIL. Shum wanted to enquire about investing in them. Upon that, Choy retrieved from the record Shum’s IPQ mentioned above. It was still within 1 year of the IPQ (dated 24 July 2006). As mentioned, Shum’s investor profile belonged to the “growth” type who is ready to tolerate medium to high risk. 25.Choy commenced her employment with DBSHK early that year; and had never met Shum before. In court, she explained that she was actually about to leave the job and was therefore concerned about the continuity in handling Shum’s account. She therefore asked for But, who was both more senior and Shum’s former relationship manager, to assist in handling Shum’s case together. But agreed to do so. 26.There is dispute as to whether a programme memorandum (“the Programme Memorandum”) of the issue of the notes was provided to Shum on the occasion. But it is common ground that Shum was provided with the Pamphlet and the Issue Prospectus. 27.According to But and Choy, in the course of explaining the Note, But took Shum through the Pamphlet and the Issue Prospectus. The following features and risks printed on the documents were highlighted in the conversation:
28.According to But, she explained to Shum that in case of a credit event such as bankruptcy of a reference entity, he could lose the principal amount of his investment. The exact amount of the loss could only be ascertained after the event. 29.But also provided for Shum’s consideration information about other investment products which were not credit linked notes, namely, AB Global High Yield Portfolio USD and AB American Income Portfolio USD. Both were open-ended funds. However Shum was not interested in these proposed alternatives. 30.But invited Shum to study the Pamphlet and the Issue Prospectus before deciding to subscribe to the Note, which Shum did on his own. According to Shum, he was conscious of turning his attention to the sections on risks, warning and important notices in the Pamphlet and the Issue Prospectus (which are set out below). In court, he confirmed that that must have taken 10 minutes or more. 31.According to But and Choy, Shum explained that his occupation or business required him to stay at the Mainland most time of the week; and he had time in Hong Kong only during weekend. That Shum was then required to work in the Mainland most time of the week is not in dispute. Nor is the fact that 5 May 2007 was a Saturday. So there and then, Shum decided to place order for the Note. 32.There is no dispute that it was Choy who handled the documentation, i.e., the Application Form and the Order Form, with Shum. According to her, she took Shum through the various parts of the Application Form. In accordance with the information provided by Shum, Choy filled in the form. Choy then turned to the Order Form. In court, Shum agreed that the relevant boxes in the Order Form were ticked and he understood their contents. TERMS OF THE DOCUMENTS The Pamphlet 33.Both the Chinese and English versions of the Pamphlet were produced at the trial. 34.Specifically the Pamphlet explained the nature of the reference obligation of a reference entity, which was a subordinated obligation, and:
Therefore, the Pamphlet further provided the ratings of the reference obligations of the first 5 reference entities by the 3 rating agencies mentioned above (which, due to their nature, were lower than the ratings given to the entities themselves). 35.Besides a summary of the main terms of the Note (as mentioned above), the Pamphlet contained, in bold print, the following notice:
The Issue Prospectus 36.The Pamphlet, in relation to the credit event, also referred the reader to refer to the Issue Prospectus for details. The Issue Prospectus began with the following important notice:
37.Besides setting out the main terms (at pp.3-4) as summarised by But (as mentioned above), the Issue Prospectus set out (at pp.8-10) in detail the following main features of the Note in a question-and-answer format:
38.Particularly, the answer to question (5) above was as follows:
39.The answer to question (8) above was as follows:
The Application Form 40.Shum signed the Chinese version of the Application Form. Of the form, the boxes next to Sections A, B, C, D and E of the Risk Disclosure Statements were ticked, indicating his understanding and acceptance of the risks of trading in different types of financial products. Section D concerned structured investment deposit. 41.By signing the Application Form, Shum acknowledged and gave the following Customer Declaration and Undertaking:
42.According to the English version of the form, it meant:
43.Shum also expressly acknowledged that he had received the Chinese version of the Investment Products Consolidated Terms and Conditions (which will be referred to below); and that he received and accepted the relevant risks by signing the Risk Disclosure Statements & Customer Declaration and Undertaking of the Application Form. The Order Form 44.The Order Form contained a Risk Disclosure Statement. Each paragraph of the statement was ticked, signifying Shum’s understanding and acceptance of the same. They read as follows:
45.The equivalent parts of the English version of the Order Form read as follows:
Investment Products Consolidated Terms and Conditions 46.The Investment Products Consolidated Terms and Conditions (“the Consolidated Terms”) referred to in both the Application Form and the Order Form above contained, among others, the following provisions:
RELATIONSHIP BETWEEN DBSHK AND SHUM 47.As mentioned, DBSHK contends that the terms of the above documents governed its relationship with Shum in respect of his investment in the Note. 48.Ellinger’s Modern Banking Law (5th ed) (at p.160) has this to say about the reluctance of the bank to assume a duty in relation to the customers’ dealings in risky and speculative financial products:
49.Recently, in Kwok Wai Hung Selina v HSBC, HCCL 7/2010 (21 June 2012), the plaintiff claimed against the defendant bank for loss in trading in forward accumulator contracts. The plaintiff contended that the bank owed her, among others, the following duties:
50.Reyes J (as he then was) rejected such contention (with reference to the facts and terms of the contractual documents in that case, which bear similarity to those in the present one):
51.Likewise, the Pamphlet and the Issue Prospectus made clear that DBSHK did not assume the duty to provide any investment advice; and any communication with the customer should not be construed as advice or recommendation. If in doubt, the customer was advised to seek professional advice. The repetitive provisions should leave one with no doubt that the relationship between DBSHK and Shum was not one of investment adviser and investor. 52.In his submission, Shum questioned who in practice would actually get to read the terms of such documents before committing by appending his or her signature to them. 53.As matter of law, the terms of the Pamphlet, the Issue Prospectus and the Consolidated Terms were binding, whether he had read them or all parts of them before signing: see Ming Shiu Chung v Ming Shiu Sum (2006) HKCFAR 334 (at §84, per Ribeiro PJ); and whether DBSHK had read and explain them to him: see Kincheng Bank v Kao Yu Kuei [1986] HKC 212. 54.As a matter of fact, as mentioned, Shum admitted during the trial that he did read the Pamphlet and part of the Issue Prospectus before proceeding to complete the Application Form. He might have spent 10 minutes or so; and presumably not read the entirety of the documents. However he was conscious of focusing his attention on the sections on the risk factor and important notice. He also agreed that he read the part of the Issue Prospectus containing the warning that he was advised to obtain independent professional advice. 55.In court, Shum argued that it was not realistic or reasonable to expect a potential investor to obtain independent professional advice for an investment of insignificant amount. As I pointed out during the trial, it could only be a matter for the customer, not the bank, to decide if the investment was significant enough for him or her to warrant the obtaining of independent investment advice. The law does not differentiate situations by reference to the amount of investment involved in affording the bank with or depriving the bank of the right to rely on the contractual disclaimer of duty or liability as investment advisor. 56.Importantly it is not suggested that Shum was prevented from taking his time. In court, he mentioned that he actually lived quite near to the Branch. It was his considered decision to proceed with the order on the very day because of his own circumstances and convenience. 57.Shum referred to the case of Morgan Chase Bank v Springwell Navigation Corp [2010] 2 CLC 705. In that case, the English Court of Appeal considered, among others, the doctrine of contractual estoppel. Aitkens LJ (at 748-749) had this to say in principle:
58.In the case of Peekay that Aitkens LJ adopted, the New Zealand Court of Appeal held (at §56) there was no reason in principle why parties to a contract should not agree that a certain state of affairs should form the basis for the transactions, whether it be the case or not. In the context of investment, Moore-Bick J had this say (at §60):
59.Aitkens LJ concluded (at §155) that Lowe v Lombank was not an authority contrary to the above analysis. 60.In his submission, Shum submitted that if the terms of the documents were unreasonable, as he found them to be, he should not be bound by them. As to that, Aitkens LJ had this to say:
61.Short of misrepresentation, which would have vitiated the contract anyway, the application of the doctrine of contractual estoppel as a result of the parties’ agreement to be bound by a certain state of affairs is not qualified by whether it is thought to be just or conscionable. 62.Mr Ho SC submitted that the case of Springwell actually supports the position of DBSHK in reliance of the terms of the contractual documents; and that this is consistent with the reasoning in Kwok Wai Hing Selina (also referred to by Shum above). I agree. 63.On the above basis, I proceed to consider the various major complaints by Shum. MISREPRESENTATION AND NON-DISCLOSURE 64.Shum complains that he was misled into believing that if one of the reference entities was affected by a credit event, the loss would be spread over the 8 reference entities and thus limited to 1/8 of the principal amount of his investment. He complains that Choy did not explain that if a credit event occurred to any of the reference entities, the credit redemption value of the Note could in fact be substantially less than the principal amount. He argued that in that case, DBSHK should not have graded the risk of the investment in the Note as low to medium. 65.Mr Ho, appearing with Mr Dawes, for DBSHK provided a summary of the law on misrepresentation in the context of investment claims given by Clark J in Raiffeisen Zentralbank Osterreich AG v The Royal Bank of Scotland [2011] 1 Lloyds’ Rep 123. It is helpful to reproduce part of that:
66.In line with the above, the following elements, in my view, are crucial to the question of whether the alleged misrepresentation is actionable:
Effect of the credit event 67.That the Note was not principal protected was made abundantly clear on the face of the Pamphlet. Shum agreed in court that he could read that the Note was not principal protected. He also understood that credit event, such as bankruptcy and inability of the reference entity to pay, could affect the principal of his investment. 68.As summarised in the Pamphlet and explained in detail in the Issue prospectus, the redemption value was essentially the nominal value of the Notes less the notional amount of loss on the reference obligation, less any depreciation of the market value of the collateral and less the costs and expenses associated with the termination of the swap arrangement in respect of the Note. The recital of these elements of the calculation in his statement of claim reflects that Shum should also understand how the redemption value might end up being, if a credit event occurred. 69.There is no way Shum could reasonably develop the belief that the risk of loss would be 1/8 of the principal amount of his investment, if credit event occurred to one of the reference entities. 70.Shum claims that he thought his money would be used to invest into the bonds of the reference entities; and specifically referred to the description of the series of notes as “債券“, literally meaning bond, in the Chinese version of the Pamphlet. In my judgment, whether or not the Chinese description was accurate, it had to be secondary to the actual explanation of the nature of the Note and the associated investment risk in the documents. That included the explanation of the nature of the reference obligations of the reference entities in the Pamphlet and the Issue Prospectus. 71.Ms Chong Hey (“Chong”), then Senior Vice-President of DBSHK in charge of Consumer Investment & Insurance Products – Consumer Banking, gave evidence and explained the nature and risk of the investment in the Note. The explanation accorded with the terms of the Issue Prospectus. 72.Shum then tries to find fault in what he considers to be differences in the description of the effect of a credit event on the value of the investment in different parts of the same document as well as between different documents:
73.In my judgment, this is a non-point. The so-called differences, upon reasonable reading, are immaterial. The effect could only be the same, which was also in line with what was explained to him at the Branch on 5 May 2007. In any event, whichever way the documents were read, his alleged understanding that the loss would be limited to 1/8 of the principal if a credit event occurred to one reference entity is not borne out. 74.In the circumstances, the misunderstanding on the part of Shum, if existing at all, could not possibly be attributable to the Pamphlet, Issue Prospectus or the contractual documents, to the extent he understood them upon reading or should have understood had he read them. The explanations in those documents obviously contradict such alleged misunderstanding on the part of Shum. 75.Nor is there suggestion that such alleged misunderstanding was attributable to any misrepresentation by But or Choy. In any event, I see no reason why and how the staff of DBSHK would venture to provide explanation which was not only non-existent in but also contradicted by the terms of the documents. Further if the explanations in the documents did not contain falsity known to But or Choy, there is no issue of whether the staff became under the duty of disclosure, as non-disclosure would amount to misrepresentation. 76.Shum seeks assistance from Natamon Protpakorn v Citibank NA [2009] 1 HKLRD 455 in relation to his complaint that DBSHK had failed to disclose the underlying nature and risk of the financial product whether by document or its staff. Apart from the fact that it started as a decision to strike out, the allegations by the plaintiff in that case differed from the present one. Without going into the details, I need say that after trial, the plaintiff’s claim in that case was eventually dismissed (largely on the facts) earlier this month (judgment handed down on 5 July 2013). 77.Misrepresentation, be it positive or by way of non-disclosure, of the nature and risk of the investment in the Note when Shum placed the order in May 2007 is not made out. Grading of the risk level 78.Shum complains that if the occurrence of a credit event to one of the reference entities could cost him total loss of the principal of his investment, it would be wrong for DBSHK to grade the risk level of the investment in the Note as low to medium. He was allegedly misled by such grading into believing that the Note fit his investment objective. 79.Shum argues that the risk level of the Note rated by DBSHK was different from that of the other series of the product. The grading was also different from that by other banks. He pointed out that even DBSHK found it necessary to revise its rating of the Note to high risk subsequently. 80.Chong explained that DBSHK has its own methodology to ascribe risk ratings to investment products distributed by her bank. It had its own criteria and considered a matrix of relevant factors. In the case of the Note, the credit ratings of the reference entities and reference obligations, the likelihood of a credit event, the quality of the collaterals, the geographical spread, the asset allocation and the strength of the issuer as well as the swap counterparty were amongst those taken into consideration in the assessment. In her statement, Chong gave a detailed account of the process of grading of risk of the investment in the Note. 81.I indicated during the hearing that as far as Shum intended to compare the grading of risks by different banks, the court could not be expected to do so without evidence of how the other banks came to their respective assessments and expert evidence. Shum bears the burden of adducing such evidence in support. There is none. 82.Reference to the revision of the assessment by DBSHK does not assist Shum either. The reason is that the circumstances surrounding the Note have indeed developed and changed substantially since the financial crisis in 2008. The evidence shows that the grading of the risk level of investment in the financial products was subject to annual review. According to Chong, the adverse market conditions since the fall of Lehman Brothers indeed called for the revision. 83.Shum also seeks to rely on “立法會研究雷曼兄弟相關迷你債券及結構性金融産品所起的事宜小組委員會報告”, or the committee report of the Legislative Council on matters arising out of Lehman Brothers related mini-bond and structural financial products published in June 2012 (specifically §§5.13; 5.21). However, the terms of reference of the committee (§1.9 of the report) suggests that the enquiry was not bank or case specific. The report goes on (at §1.10) to make clear that the primary principle of the enquiry was that it did not target specific case, company or individual. Nor did it mean to assist individual investor to pursue civil claim. The evidential value of the report (the paragraphs relied on included) for the resolution of the present dispute is doubtful. 84.More importantly, and I said so in court, whilst the risk level of the investment was graded to facilitate the potential investors’ consideration, that the investment was not principal protected and that the risk of loss of the principal, if a credit event occurred, was equally made known. In other words, the grading of the risk level was but one way of disclosure. 85.That brings me to say that in view of the nature of the grading of risk level of the Note, I doubt if the same amounted to representation of fact instead of statement of opinion. As statement of opinion, what matters is whether it was formed as reasonable and honest belief at the relevant time. According to Chong, that was indeed the case, taking into account, among other things, the then credit ratings of the reference entities. But even assuming that the grading is proved to be wrong, it would not have been falsity of factual statement, which is a pre-requisite for actionable misrepresentation (as mentioned above). Bear Stearns 86.Relevant to the issue of disclosure of risk in investing in the Note, Shum argues, is the problem associated with Bear Stearns Companies Inc (“Bear Stearns”). As at the time when it was one of the reference entities of the Note, Leyman Brothers was given A rating. So was Bear Stearns. That the discovery of the problems associated with Bear Stearns was no news in the latter half of 2008 and certainly now. Like many others, Shum now questions the reliability of such ratings then. 87.As mentioned above, those were the ratings given by the then 3 major rating agencies of the world. DBSHK could only be one of the many in the financial world then to make reference to such ratings. The Pamphlet informed the potential investors of the ratings given to the 8 reference entities as at 11 April 2007 by the 3 agencies respectively. The pamphlet also informed the customers of the ratings given to the reference obligations (which were basically lower than the ratings given to the entities) of each of the first 5 reference entities, Bear Stearns included, by the 3 agencies respectively. 88.Before DBSHK should be critical about such ratings, there had to be reason for doubting the integrity of the ratings of these entities, and I stress, at the relevant time. I see no evidence of ground for reasonable suspicion of the integrity of the ratings when Shum placed his order for the Note in May 2007. 89.Shum seeks to rely on the extracts of certain overseas newspaper articles. In court, he suggested that such evidence would be relatively more independent that the evidence of witnesses. As far as the rule of evidence is concerned, such argument is clearly bad. 90.Copies of notices sent by DBSHK to investors, including Shum, in 2008 were produced. According to the notices, DBSHK became aware of the potential problems associated with Bear Stearns in March 2008. By its notice dated 19 March 2008, DBSHK explained the problems, which I need not set out in details for the present purpose, following an announcement made by the management of Bear Stearns on 14 March 2008. Any suggestion, if at all, that DBSHK knew but withheld such information from Shum is not made out. More importantly, there is no evidence of the basis for suggesting that Bear Stearns had credit problem at the relevant time; and that DBSHK knew or should have known about that. 91.Shum’s reference to Bear Stearns is linked with the issue of the sub-prime risks. One should lose sight of the fact that the credit event triggering the redemption of the Note was the bankruptcy of Lehman Brothers. This was explained in details by DBSHK’s letter and the set of Frequently-Asked-Questions to the investors, including Shum, dated 27 October 2008. 92.The issue of sub-prima risks would be relevant only if it had causal link to the credit event. But according to Shum, he could only suspect that it was Lehman Brothers’ engagement in high risk investments that caused its collapse. There might have been subsequent enquiries and investigation in this respect. But the court must refrain from judging the case with reference to materials or information other than properly adduced evidence. There is a lack of properly adduced evidence of the causal link between the issue of sub-prime risks and the bankruptcy of Lehman Brothers and thus the credit event leading to the early redemption of the Note. 93.Shum refers to a report of the disciplinary proceedings in 2004 against one Towry Law (Asia) HK Limited for failings in relation to certain hedge funds managed by third parties (which were subsequently suspended from trading). The primary responsibility for the collapse of the funds were said to lie not with Towry Law. Nevertheless Towry Law was charged with failure to conduct insufficient due diligence into the funds before recommending them to clients; sold the funds to clients whose investment objectives and risk tolerance did not always match with the risk profiles of the funds; failed to conduct proper enquiries into circumstances surrounding the funds which indicated problems with the funds; and failed to advise clients when it became clear that the funds had problems. Towry Law eventually agreed to make ex-gratia payments to affected investors on a without admission of liability basis. 94.Putting aside the proper evidential value to be attached to this document, I read the rest of it to understand that it related to the role and duty of investment adviser, which is different from the role of DBSHK in the present case. The terms governing the relationship between Towry Law and its clients are nowhere to be known. In the circumstances, it is simply irrelevant. 95.Misrepresentation or non-disclosure of the risk of investment in the Note, whether when Shum placed his order in May 2007 or afterwards, is not made out. Alleged conflict of interest 96.The various parties involved in the issue and the sale of the Note were identified above. Shum criticised that these parties were in a position of conflict of interest as they were in the same group. He went further to suggest that as a result, DBSHK (or its associate in the group) managed to gain out of his loss. 97.Mr Ho SC submits that Shum failed to establish by evidence what exactly the conflict was; if there was a conflict, that it was concealed or not disclosed; and how the alleged conflict resulted in his loss. In my judgment, even the pleading in this respect is inadequate for proper understanding. The attempt to argue that they, eg CIL, DBS and DBSHK, were nothing but same group will be total disregard of the separate corporate reality. 98.Shum argues that the occurrence of a credit event effectively afforded DBS the opportunity to gain from the loss of the investors, allegedly by becoming able to keep the collaterals at nil price. Mr Ho submits that the argument was flawed. The secured nature and recourse under the Note were explained in detail in the Frequently-Asked-Questions in the Issue Prospectus (mentioned above), which was also referred to in Chong’s explanation in her statement. As the swap counterparty, it has hedged its position by assuming similar risk through the credit default swap between it and the other market participations. It was the other market participants that were parties with whom the credit risk assumed by the investors were hedged. DBS did not gain by reason of the occurrence of credit event. I agree with Mr Ho. There is also no evidence that DBS did gain in the manner alleged by Shum. 99.The case of Wing Hang Bank Ltd v Kwok Lai Sum [2009] 4 HKLRD 93 that Shum referred to is hardly on the point. Conclusion 100.Considering all the evidence, I find the witnesses for DBSHK to be straightforward; but cannot say the same about Shum. His evidence, when tested with the other evidence, oral and documentary, impressed me as being highly subjective. Mr Ho SC submits that Shum’s evidence was sometimes convoluted and based on speculations. I share that observation. I accept the evidence of DBSHK’s witnesses. Insofar as there is conflict between the evidence of Shum and that of the witnesses for DBSHK, I prefer the latter. 101.Bearing in mind the personal background of Shum, I find the alleged misrepresentation, be it express, implied or by way of non-disclosure, as alleged is not proved. Nor is the reliance, reasonably assessed. I share Mr Ho SC’s observation that the entire backbone of the claim is founded on Shum’s subjective understanding, and to the extent that it was misunderstanding as alleged, of the nature, terms and risk of his investment in the Note. 102.I also find that as a matter of fact, it was not the alleged misrepresentation or the subscription of the Note at the relevant time, but the adverse market conditions prevailing around the time of the collapse of Lehman Brothers in September 2008, that caused Shum’s loss. The collapse of Lehman Brothers and the resultant substantial fall in the value of the Note caught a lot of people by surprise. It is not proved to have been reasonably foreseeable at the time when Shum subscribed to the Note. 103.DBSHK can also resort to the principle of contractual estoppel mentioned above. But in view of the above findings of fact, this may not be strictly necessary. OTHER POINTS Allegedly told to hold onto the Note 104.Shum also complains that his loss was partly caused by the advice to hold onto the Note until maturity and not to sell it during his enquiries with DBSHK in the light of the problems associated with Bear Stearns. However he could not identify the person whom he was allegedly so advised. 105.I hesitate to attach weight to such accusation, when DBSHK was deprived of the opportunity to locate the staff said to be responsible, whom Shum could not identify, to rebut the allegation. Further, it is unknown whether as a matter of fact, Shum would have disposed of the Note and that the same would have been taken up by others in the market so as to save him from the loss. DBSHK’s settlement with investors 106.It is common ground that DBSHK has come to settlement with some investors in the credit-linked notes issued by CIL. Shum refers to the announcement, apparently by the Securities and Futures Commission (“SFC”) in July 2010, of the settlement agreement. 107.To begin with, that was among the documents shortly produced by Shum before trial. For that, Mr Ho complained that his client had no real chance of responding especially when the same was not specifically put during cross examination of his client’s witnesses. The objection was noted. 108.In any event, the announcement at least explained that this was a settlement between DBSHK with those low to medium risk investors. As mentioned, Shum belonged to the “growth” type of investor profile having a medium to high tolerance of investment risks at the relevant time. Why Shum was excluded from the settlement may seem obvious. More importantly, the announcement made clear that the settlement was reached without admission of liability on the part of DBSHK. 109.I would not underestimate the significance of such settlement, from which Shum could not benefit, on the development of his grievance. Leaving aside the question of whether or not his grievance is justified in his circumstances, I do not see how this assists him in establishing his claim. The SFO 110.Shum relies on section 107 of the SFO, which makes it a criminal offence to fraudulently or recklessness induce others to invest money. Let alone the element of fraudulent or reckless misrepresentation in the offence, which, if alleged, would need to be proved beyond reasonable doubt, the section simply does not found a civil cause of action for damages. 111.The same could be said about the Code, which was published by the Securities and Futures Commission pursuant to section 399 of the SFO. Section 399(6) of the SFO provides that:
Likewise, the Code (at §1.5) says the same about the effect of breach. 112.The relevant section seems to be section 108, which provides for a statutory cause of action, parallel to the common law, for damages for pecuniary loss that the representee has sustained as a result of the reliance on the misrepresentation (made fraudulent, recklessly or negligently) by the representor inducing former to enter into contract to invest in, among others, securities. 113.In view of the above findings of fact, the section could not be invoked. For the avoidance of doubt 114.The manner in which Shum put forward his contentions has caused his opponent and this court to try to group and summarise his major complaints for better disposal. Points here and there in the documents he has submitted that are not specifically addressed here are indeed noted in the deliberation of the court. Only that they do not serve to affect the outcome of the case. ORDER 115.The claim is dismissed. Following this event, I make a nisi order that Shum shall pay DBSHK’s costs of this action, including any costs reserved. Costs shall be taxed, if not agreed, with certificate for 2 counsel. In the absence of application within 14 days to vary, the nisi costs order shall become absolute.
The plaintiff, in person Mr Ambrose HO, SC and Mr Victor DAWES instructed by Messrs DLA Piper Hong Kong for the defendant | |||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCJ 1726/2011