Charges

A former executive of the Hong Kong Exchanges and Clearing Ltd (HKEx) Eugene Yeoh (D1), who was for the relevant time period, the co-head of the “Initial Public Offer (IPO) Vetting Team” overseeing all applications to the The Stock Exchange of Hong Kong Ltd (SEHK) for IPOs, was acquitted for the charges of conspiracy to offer advantages to a public servant and misconduct in public office in relation to allegations of bribes received from an IPO consultant Richard Lum (D2). Lum was also acquitted for the charge of conspiracy to offer advantages to a public servant and the alternative charge of offering advantages to a public servant.

The relevant time period spanned between 30 April 2015 and 24 May 2019. During the material time,

• D2 was found to have issued seven cheques totalling HK$9.15 million, HK8.15 million being deposited into the personal bank account of D1’s wife, H, and HK$1 million being deposited into a joint bank account of D1 and H; and
• In D1’s application to the Hong Kong Jockey Club (HKJC) for membership as a “Racing Member”, D2 acted as the third supporting member to support the application.

On the other hand, during the material time, it was undisputed that 12 companies submitted applications to SEHK (responsible for operating the only recognized stock market in Hong Kong) for IPOs and D2 had given suggestions and/or opinions to the companies and/or sponsors involved.  All 12 companies were given approvals to be listed either on the Main Board or in the Growth Enterprise Market (as it then was).

Findings

 The District Court of Hong Kong found that:

1.  Regarding D1’s knowledge of D2’s participation in the 12 listing applications:

• • It is undisputed that the two defendants have known each other for years and were close personal friends, often socialising and gathering together with their spouses. It was reasonable that D1 knew of the nature of D2’s job.
  • There is no evidence showing that D1 has come to know that D2 had participated in the 12 listing applications in any capacity. Accordingly, unless D2 told D1 about his participation or any of the documents submitted to the SEHK showed D2’s participation, the Court cannot draw any interference that D1 knew about each listing application that D2 participated in merely on the basis of their friendship. The Court acknowledged that D1 having worked in the financial sector for years before joining the HKEx, the various types of “IPO players” that D1 came into contact in his daily work would have included friends or acquaintances.
  • While there were seven emails relating to a LC Group Holdings Ltd, D2 did not mention any of his participation in the content of the email nor is there any evidence showing that D1 made any response. It cannot prove that D2 had actually participated in the application nor can any inference of D1’s knowledge be drawn accordingly.

2.  Regarding D2’s support of D1’s application for membership of the HKJC:

• • Acting as a supporting member for an applicant for “Racing Membership” can be regarded as doing a small favour, which can be accomplished by simply writing a few sentences of recommendation and signing by any HKJC member. It is akin to giving D1 a “lift” while driving. It does not constitute an “advantage” under the Prevention of Bribery Ordinance (POBO).
  • There were no listing applications in which D2 participated that were submitted to the SEHK immediately before and after D2 signed D1’s application form.

3.  Regarding the nature of the HK$9.15 million provided by D2 to H:

• • H explained that the monies did not belong to her or D1 but were investment on behalf of D2 in the private equity funds done out of friendship. This was accepted as every time after receiving money from D2, H acquired private equity funds with all the money within a few days to 1 week.
  • The fact that the monies were used to acquire private equity funds and thus subjecting it to the restriction of the non-redemption period, that they were not used in stocks and real estate which gave higher and faster returns, and the fact that with D1, D2 and H all being elites in the financial and investment sectors D2 had made payment to H’s bank account rather than other non-transparent channels – made it unlikely that the monies were given as bribes.
  • That H requested D2 to pay HK$1 million into the joint account was for convenience only as D1 had requested H to pay certain family expenses at the time was considered not unreasonable.
  • That H was relied on to make the private equity funds investments was due to her personal connections, was accepted. Those were funds with high-priced entry thresholds and only professional investors or people with considerable knowledge of investment could participate. H was allowed to acquire the funds “as a token of respect” from the persons in charge of the funds concerned. The Court accepted that high earners may acquire a private equity fund together by each contributing several million dollars depending merely on “trust”.

Acquittal

Accordingly, the Court found that the prosecution failed to prove beyond reasonable doubt that (i) D1 knew that D2 had participated in the 12 listing applications in any way; (ii) D2’s acting as a supporting member for D1’s application for “Racing Membership” to the HKJC constituted an “advantage”; and (iii) the HK$ 9.15 million that D2 provided to H constituted an advantage to D1 and/or his spouse, D1 was just not required to make any declaration of interests to HKEx, or withdraw himself from the vetting and approval of the listing applications concerned, and acquitted D1 and D2.

This case is useful as it elaborates on the definition of “advantage”, and how charges involving close personal friends would interplay under the POBO.

如果您想了解有关本文中提出的事宜，请联系：

梁延达，合伙人 （alfredleung@hkytl.com)

易秀云，顧問律師(janiceyik@hkytl.com)

夏嘉曦， 律师 (tammyha@hkytl.com)