Decision Notice
DECISION NOTICE
To:
Eric Ka Chi Siu
1.
ACTION
1.1.
For the reasons given in this notice, the Authority has decided to impose on Eric Ka
Chi Siu a financial penalty of £40,200 pursuant to section 91 of the Financial
Services and Markets Act 2000 (the “Act”) because Mr Siu was knowingly concerned
in a breach by Cathay International Holdings Limited (“Cathay”) of the Authority’s
Listing Principles.
2.
SUMMARY OF REASONS
2.1.
Cathay is a holding company based in Hong Kong, and is premium listed on the
London Stock Exchange in the UK. Cathay operates through a number of
subsidiaries, and during 2015 between 70% and 80% of its revenue derived from
Lansen Pharmaceutical Holdings Limited (“Lansen”). Between 21 August 2015 and
29 December 2015 (“the 2015 Relevant Period”), Cathay had an average market
capitalisation of £69,602,132. At all material times, Mr Siu was Cathay’s Finance
Director (“FD”).
Mr Eric Ka Chi Siu has the right to refer his Notice to
the Upper Tribunal to determine what (if any) the
appropriate action is for the Authority to take, and
remit the matter to the Authority with such directions
as the Tribunal considers appropriate.
2.2.
On 29 December 2015, Cathay issued a trading update
(“the December
Announcement”). The December Announcement informed the market that due to
operating expenses being significantly higher than anticipated, it expected a
material loss before tax for the year ending 31 December 2015, a performance
which would be markedly below market expectations. It also disclosed a significant
financial penalty imposed on a subsidiary of Lansen. On the day of the December
Announcement, Cathay’s share price dropped by 18.2%.
2.3.
The deterioration in Cathay’s financial performance over the course of 2015 was
the result of a number of issues across Cathay’s group.
Cathay’s Listing Principle 2 breach
2.4.
Listing Principle 2 requires a listed company to deal with the Authority in an open
and co-operative manner.
2.5.
Between 29 February 2016 and 16 August 2016 (“the 2016 Relevant Period”),
Cathay corresponded with the Authority about the timing of the December
Announcement. The Authority’s requests for information clearly required
explanations of the events surrounding the December Announcement. In that
correspondence, which was drafted and signed by Mr Siu, Cathay provided
information to the Authority about its forecasting procedures and its forecasts in
2015 which was materially different to the actual processes followed in 2015 and
was not contemporaneous with the period leading up to the December
Announcement. While the Authority accepts Cathay’s explanation that it did not
intend to mislead the Authority, Cathay had decided to provide this information to
the Authority and was aware that the information being provided was not an
accurate record. Cathay did not in that correspondence either state that, or provide
an explanation of why, it was providing non-contemporaneous information.
2.6.
During the 2016 Relevant Period Cathay failed to be open and co-operative with
the Authority when it provided, without any explanation, materially different
information to the Authority about its forecasting procedures to the actual
procedures followed at the relevant times during 2015. Cathay therefore breached
Listing Principle 2.
Mr Siu being knowingly concerned in Cathay’s breach
2.7.
Mr Siu was a director and FD of Cathay at all material times and, by virtue of that
role and his knowledge of, and involvement in, the matters which gave rise to
Cathay’s breach, he was knowingly concerned in the breach of Listing Principle 2
throughout the 2016 Relevant Period. Mr Siu was responsible for drafting the
correspondence with the Authority and knew that the information being provided
was not a contemporaneous record of events.
2.8.
The Authority relies on listed companies and their directors to provide clear,
accurate and complete information to it in order effectively to monitor and regulate
the integrity of the financial markets in the UK. The provision of inaccurate
information to the Authority impacts its ability to do this.
2.9.
The Authority has therefore decided to impose a financial penalty on Mr Siu in the
amount of £40,200 for the 2016 Relevant Period pursuant to section 91 of the Act.
2.10.
The Authority does not make any criticism of any other person or entity in this
Notice.
3.
DEFINITIONS
3.1.
The definitions below are used in this Notice:
the “Act” means the Financial Services and Markets Act 2000;
the “Authority” means the Financial Conduct Authority;
the “Board” means the Cathay board of directors;
“Cathay” means Cathay International Holdings Limited;
“CEO” means Chief Executive Officer;
“CFDA” means the China Food and Drug Administration;
the “December Announcement” means the trading update made to the market (by
way of Regulatory Information Service) by Cathay on 29 December 2015;
“DEPP” means the Authority’s Decision Procedure and Penalties Manual;
“DTR” or “DTRs” means the Disclosure Rules and Transparency Rules, part of the
Handbook;
“FD” means Finance Director;
“GBP” means Pounds Sterling;
the “Handbook” means the Authority’s Handbook of rules and guidance;
“Lansen” means Lansen Pharmaceutical Holdings Limited;
“Listing Principles” means the Listing Principles set out in the Listing Rules, part of
the Handbook;
“Mr Lee” means Mr Jin-Yi Lee, Cathay’s CEO at all material times;
“N+1” means N+1 Singer, Cathay’s financial adviser and broker during the 2015
Relevant Period;
“RMB” means Ren Min Bi;
the “Tribunal” means the Upper Tribunal (Tax and Chancery Chamber);
“USD” means United States Dollars;
the “2015 Relevant Period” means 21 August 2015 to 29 December 2015; and
the “2016 Relevant Period” means 29 February 2016 to 16 August 2016.
4.
FACTS AND MATTERS
4.1.
Cathay is a holding company based in Hong Kong, which is premium listed on the
London Stock Exchange. It specialises in investing and operating in the healthcare
sector in the People’s Republic of China, as well as in luxury hotels. It operates
through a number of subsidiaries, including Lansen (listed on the main board of the
Hong Kong Stock Exchange) which accounted during the 2015 Relevant Period for
70% to 80% of Cathay’s revenue. During the 2015 Relevant Period, Cathay had an
average market capitalisation of approximately £69,602,132.
4.2.
Cathay’s financial performance and interim and year-end accounts were
determined by the consolidation of the performance of its five subsidiaries, and the
costs to run its corporate office, as it did not carry out its own business activities.
Cathay was therefore reliant on the provision of information from its subsidiaries
to understand its actual and expected financial performance during the 2015
Relevant Period. Mr Siu was responsible for reviewing the consolidated financial
information received from Cathay’s subsidiaries. During the 2015 Relevant Period,
Cathay’s performance was overseen by its Board, which consisted of four executive
directors and three non-executive directors.
4.3.
During the 2015 Relevant Period, Cathay was the majority shareholder of Lansen,
owning 50.56% of its shares. Lansen and its subsidiaries primarily engage in the
manufacturing and trading of pharmaceutical products in China. Its wholly-owned
subsidiaries include Ningbo Liwah, a pharmaceutical company based in the People’s
Republic of China.
4.4.
The Board met on four occasions each financial year, and in 2015 the Board met:
(a)
in March, primarily to review the year-end results for the previous financial
year, and to set the internal budget for Cathay’s operations for the year
ending 31 December 2015;
(b)
in June, primarily to coincide with Cathay’s Annual General Meeting. This
meeting also considered Cathay’s financial performance against the internal
budget;
(c)
in August, primarily to review Cathay’s six-month interim results up to 30
June 2015, to obtain an update on the operations of each subsidiary, to
prepare an outlook statement and to forecast Cathay’s expectations for the
year-end; and
(d)
in December, primarily to review Cathay’s ten-month results, and to obtain
an update on the operations of each subsidiary, and Cathay’s forecast
expectations for the year-end.
4.5.
There was no similar formal meeting structure for Cathay’s executive committee;
but the executive directors, including Mr Siu, worked within the same office in close
proximity to each other, and so regularly met informally. However, in practice,
decisions that were not business as usual in nature would not be taken by the
executive directors or the executive committee, and would be escalated to the
Board.
Mr Siu
4.6.
Mr Siu has been a director of Cathay, and its FD, since 21 January 2010. During
the 2015 and 2016 Relevant Periods, he was responsible for managing the financial
and transaction-related activities, and investor relationships of the Cathay group
(excluding the Lansen group). Mr Siu was responsible for reviewing and presenting
corporate finance information to the Board. As part of his role, Mr Siu was also
responsible for liaising with Cathay’s financial advisers and legal advisers with
regard to regulatory reporting and updates. He was then to alert the Board and
bring to its attention any irregularity and lack of compliance as well as any material
issues requiring its consideration. Mr Siu reported on important matters relating to
Cathay’s business on a regular basis.
Cathay’s business in 2015
4.7.
In March 2015, Cathay’s Board, of which Mr Siu was a member, set an internal
budget for the year ending 31 December 2015 with a budgeted profit after tax1
totalling USD 3.4 million. In the publication of its annual results for 2014 to the
market on 27 March 2015, it also released an outlook statement which discussed
the various challenges and prospects for Cathay in 2015, but ultimately stated that
Cathay anticipated operating cash flow to improve in all business segments. The
outlook statement did not, however, provide any quantified guidance to the market
on Cathay’s year-end expected profit or revenue.
4.8.
In May 2015, Cathay engaged N+1 as its new financial adviser and corporate
broker. Mr Siu was involved in providing information required by N+1 to perform
its work. As part of its role, N+1 would provide advice on Cathay’s financials, act
as a sponsor where required, and release analyst notes to the market. On 11 May
2015 analysts at N+1 released a note to the market setting out N+1’s expectations
for Cathay for the year ending 31 December 2015. N+1’s expectations were that
Cathay would make a loss after tax of USD 0.1 million for the year. This note was
prepared in conjunction with Cathay. It constituted the first occasion on which the
market was informed of any expectations for Cathay’s financial performance for the
year ending 31 December 2015, and as such constituted the best indicator of
market expectations.
1 In this Notice references to profit or loss after tax, in relation to Cathay, mean profit or loss (as the case may
be) attributable to Cathay’s owners.
4.9.
Over the course of 2015, Cathay’s business was impacted by a number of issues.
As a result, during 2015 Cathay saw its financial performance for the year ending
31 December 2015 being negatively impacted. Mr Siu was sent the monthly
consolidated management accounts for his review and attended regular business
meetings to discuss Cathay’s financial performance.
4.10.
At the relevant time Cathay was affected by the fact that Lansen, which specialises
in pharmaceutical products, had a number of significant issues occur, which
impacted on its trading and profitability. During 2015 the CFDA carried out a
nationwide inspection of the Gingko production industry. As a result of that
investigation, Ningbo Liwah incurred a number of expenses, including product recall
costs, inventory write off and, in December 2015, a substantial penalty imposed by
the CFDA. Mr Siu was aware of the CFDA’s investigation of Lansen through the
media and internal communications within Cathay at the time.
4.11.
During 2015 Cathay, through its subsidiaries, also had a number of initiatives which
would seek to improve its financial performance. One of those initiatives was the
diversification of Lansen’s product portfolio. In May 2015, Lansen added two new
products to its portfolio: Bio-Rad, a diagnostic kit for autoimmune diagnosis, and
Fillderm, a collagen injectable filler produced by Botai, a subsidiary of Lansen.
Lansen created a new budget for these products (i.e. comprising matters such as
launch costs and aims for future performance), which it sent to Cathay in May 2015
and which provided for expected revenue from the new products of USD 11,392,000
for the year ending 31 December 2015. Mr Siu was aware of the addition of both
of Lansen’s new products.
Cathay’s financial reporting process
4.12.
Cathay did not have any written process for how it collated and considered results
from its subsidiaries. However, Cathay normally received monthly results from each
of its subsidiaries; generally between two and four weeks after the month end.
Management of Cathay, including Mr Siu, met with Cathay’s subsidiaries each
month to understand the key issues in the business, although these meetings were
not always formally documented or recorded.
4.13.
Individuals within Cathay were directly involved in the preparation of the financial
results from all subsidiaries except Lansen. Lansen, as a separately listed company,
had its own process for compiling its monthly results. Once it had gone through
that process, it sent its results to Cathay (occasionally outside the two to four-week
window). Cathay, on occasion, and not through Mr Siu, made enquiries about the
reasoning or assumptions behind the numbers in the results, but would generally
accept the numbers as presented due to its awareness of the sign-off process for
the numbers at Lansen.
4.14.
On receipt of the results from its subsidiaries each month, Cathay’s finance
department consolidated the results, and (from April 2015 onwards) compared
Cathay’s performance to the budget set by the Board in March 2015. Mr Siu was
involved in reviewing the consolidated management results and compared them
against the budget.
4.15.
Cathay also consolidated the monthly results in advance of the regular Board
meetings for the purposes of reviewing its financial performance. Mr Siu was
involved in challenging the subsidiaries, except Lansen, in seeking explanations on
the monthly results. As with the monthly consolidations by Cathay’s finance
department, the figures prepared for the Board were compared to the figures in
Cathay’s internal budget, set by the Board in March 2015, as well as the published
results for the previous financial year. However, Cathay did not compare its actual
financial performance to market expectations for the year ending 31 December
2015.
Cathay’s forecasting process
4.16.
Cathay had no documented procedures which set out how it forecast its expected
financial performance, including what factors it took into consideration when
determining whether it held inside information. However, twice a year, in advance
of the interim and end of year Board meetings in August and December, Cathay
also received year-end forecasts from its subsidiaries, which it would consolidate
alongside the results, in order to assess how it was performing against the budget
set by the Board in March. The interim forecast was based on six months’ results,
and six months’ forecasts, and the year-end forecast was normally based on ten
months’ results and two months’ forecasts. Once the forecasts were consolidated,
Mr Siu and others reviewed them prior to circulating them to the Board.
4.17.
Mr Siu and others at Cathay were directly involved in the preparation of the
forecasts from its subsidiaries except Lansen. As with its monthly results, Lansen
followed its own forecasting process and submitted the forecasts to Cathay
following approval. As with the monthly results, Cathay could make enquiries as to
the reasoning or assumptions behind the figures for Lansen, but generally accepted
the forecasts as submitted.
4.18.
The forecasts compared the profit estimate against the budget, as well as a
comparison to the preceding financial year. During the 2015 Relevant Period, Mr
Siu and others at Cathay did not compare the forecasts to the market expectations
set out by analysts at N+1, and therefore in the absence of this, the Board did not
consider the forecast against market expectations for the year ending 31 December
2015 in their review of the forecasts.
The 2015 interim results
The August 2015 Board meeting
4.19.
In advance of a Board meeting on 26 August 2015, Cathay received results from
all of its subsidiaries for the first six months of the year, up to 30 June 2015.
Individuals within Cathay consolidated the results and prepared draft interim
results announcements. Mr Siu, with others, prepared the Board pack, which
included the consolidated results and year-end forecasts for the subsidiaries
(except year-end forecasts for Lansen), for consideration at the Board meetings.
4.20.
Cathay also submitted its interim results, and associated draft commentary, to N+1
on 21 August 2015 for N+1’s advice and comments on the drafting of the interim
results announcement and associated documents. Mr Siu sent the draft interim
statement to N+1 for its review prior to the interim statement’s circulation to the
Board.
4.21.
The interim results showed that Cathay had weaker financial performance than at
the same point in the preceding year, with six-month revenue totalling USD
62,156,000 and operating at a loss after tax of USD 4,266,000. This was
significantly below market expectations as set by analysts at N+1, who had
predicted a loss after tax of USD 0.1 million for the full financial year. Despite this,
Cathay did not consider revising its own expectations for the year-end, or whether
the deteriorating performance of Cathay constituted inside information. The interim
results were also not considered by Cathay against the market expectations set by
analysts at N+1.
4.22.
While it received monthly results from Lansen up until June 2015 to be included in
Cathay’s interim results, Cathay was not provided with a forecast from Lansen
setting out its expectations for the year-end. Mr Siu was aware that Lansen had
not provided its forecast for the year-end. Instead, Lansen provided an oral update
to the Board at the meeting on 26 August 2015, which did not include any numbers
or forecasts.
4.23.
Cathay stated to the Authority that it attempted to obtain a forecast from Lansen
for the August 2015 Board meeting but found it difficult due to resourcing
constraints at the time as a result of the ongoing inspection of the Gingko
production business by the CFDA.
4.24.
However, Cathay did not have any procedure in place to generate forecasts for its
own year-end expectations where it was not provided with information from a
subsidiary. Mr Siu knew that Cathay did not have such a procedure.
4.25.
In the absence of forecasts from Lansen, Cathay’s Board, which included Mr Siu,
only considered year-end forecasts for the remaining subsidiaries and the Board
did not possess sufficient information to monitor carefully by assessing Cathay’s
overall year-end financial performance. In the course of preparing the Board
papers, Mr Siu did not take any steps to ensure that Cathay completed its year-end
forecasts for the whole of its business which included Lansen.
4.26.
As noted above, the monthly results
were not considered against market
expectations. Neither was the interim forecast. Both were only considered against
Cathay’s internal budget, and the 2014 performance. In fact, Cathay could not
compare the forecast effectively against market expectations as it had not taken
steps to assess what would be its total year-end position.
Concerns raised by N+1
4.27.
On 25 August 2015, N+1 raised concerns to Mr Siu and others that, due to the
interim results, it was likely that Cathay would significantly miss the full year
expectations set out in N+1’s note of 11 May 2015. This was because the interim
results showed poor performance in the first six months of the reporting period.
Cathay was not aware that it would miss expectations as this was the first occasion
on which relevant people at Cathay, including Mr Siu, had considered the impact of
Cathay’s interim results on its full year performance and whether Cathay held inside
information.
4.28.
On 27 August 2015, N+1 advised Mr Siu and others that Cathay needed to include
in its announcement information about the fact it might miss market expectations
for the full year. N+1 proposed an amendment to a sentence which was sent to Mr
Siu, and of which he was aware, to address this concern in Cathay’s draft interim
results, which would have stated that ‘the Company anticipates that operational
performance for the full year will be significantly lower than its previous
expectation’.
4.29.
The Board, including Mr Siu, did not agree with N+1’s advice, and removed the
entire sentence from the draft of Cathay’s interim results announcement shortly
before publication. The Board considered that it was too soon to understand the
financial impact of certain events on the group’s business, and that the situation
might change before year-end.
4.30.
On 28 August 2015 Mr Siu spoke to N+1. Mr Siu also informed N+1 that the
announcement itself, while not providing quantified guidance as to what it expected
its position to be, provided the reader with sufficient information as to the state of
Cathay’s business (by way of the poor performance in the first six months), such
that they could come to their own conclusions as to how this might impact year–
end, and so the announcement would not benefit from the additional clarification
proposed by N+1.
4.31.
On 28 August 2015, N+1 repeated its advice to Mr Siu and further advised Cathay
that it might be in breach of the DTRs if it did not include a line in its interim results
announcement on whether it would meet market expectations, as N+1 considered
that Cathay held inside information about its expected financial performance for
the second half of the year. N+1 also alerted Mr Siu to the fact that it would need
to downgrade market expectations for Cathay, through the issuance of a new
analyst note. Mr Siu considered that the revised analyst note, alongside the interim
results, was sufficient to inform the market of the impact of the interim results on
full year expectations.
4.32.
Mr Siu sent Mr Lee a copy of N+1’s advice. Despite N+1 having expressly advised
that a rule breach might occur, the senior individuals at Cathay including Mr Lee
and Mr Siu did not reconsider Cathay’s position, as the sentence proposed by N+1
had already been rejected by the Board. Although all material matters would
normally be escalated to the Board, Cathay did not take any steps to reconsider its
position in light of the further advice from N+1 or to consider whether it did hold
inside information, and the Board as a whole was not informed that N+1 had
advised of a potential rule breach. Having discussed the matter with Mr Lee, Mr Siu
released Cathay’s interim results announcement shortly after these discussions
with N+1, and it did not include any statement that Cathay would not meet market
expectations. Mr Siu was named as Cathay’s first point of contact for further
enquiries in relation to Cathay’s interim results announcement.
4.33.
On 28 August 2015, as a result of Cathay’s poor performance in the first half of the
year, N+1 downgraded its expectations for Cathay’s performance in a published
analyst note. N+1’s revised expectations for Cathay were that it would make a loss
after tax of USD 6.3 million at year-end. This downgrade did not include
consideration of any revenue (or profits) from the new products referred to in
paragraph 4.11.
Period following the interim results
4.34.
During conversations with N+1 at the time of finalising Cathay’s interim results, Mr
Siu assured N+1 that Cathay would continue to monitor its performance, so that it
could identify and inform N+1 if and when a trading update was needed in the
future. However, between 28 August 2015 and the year-end December Board
meeting, Cathay did not monitor its performance against the market expectations
set out by N+1 in the analyst note. Instead, Cathay monitored its performance
against its internal budget, and continued to assess whether the facts in the
unquantified outlook statement in the interim results remained true.
4.35.
Between Cathay’s interim results and the consolidation of its ten-month results for
the 10 December 2015 Board meeting, Cathay’s performance was so poor that it
failed to generate even half of the revenue it had budgeted for internally. Despite
Cathay continuing to perform well below its budget for the year, it did not consider
whether this deterioration in performance might amount to inside information, and
whether it should issue a trading update. Cathay did not monitor its financial
performance by comparing its actual results against the market expectations set
out by N+1 in the analyst note.
4.36.
During the same period, N+1 attempted to obtain from Mr Siu and others at Cathay
year-end forecasts on multiple occasions, but was not provided with them. Cathay
failed to inform N+1 that the year-end forecasts did not, at this point, exist. Mr Siu
was aware that forecasts were only produced twice a year, and that Cathay had
not completed a forecast in August 2015. Until year-end forecasts were produced
in early December 2015 (see below), he was aware that no other forecasts existed.
The December Announcement
Earlier advice received by Cathay
4.37.
On 13 November 2015, N+1 made a further request to Mr Siu to obtain forecasts
from Cathay for its year-end performance. As a result of this contact from N+1, a
call was arranged for 27 November 2015 with Mr Siu and another individual from
Cathay. At this point, Cathay had actual financial results for ten months plus two
months’ forecasts for all of its subsidiaries except Lansen (but did have nine
months’ actual financial results from Lansen).
4.38.
On 27 November 2015, Mr Lee received notification of a penalty intended to be
imposed by the CFDA on Ningbo Liwah of RMB 18,290,177.32, equivalent to
approximately USD 2,860,000 at the relevant time. Mr Lee provided the details of
that penalty to individuals at Cathay (including Mr Siu) who would be on the call
with N+1. At the time of the call with N+1 on 27 November 2015, Mr Siu was aware
of a significant cost to Lansen.
4.39.
During the call with N+1 on 27 November 2015, Mr Siu assisted in describing in
general how each subsidiary, and therefore Cathay, was performing. Based on
Cathay’s financial performance over the first six months of the year, Mr Siu
considered that the financial performance in the second half of the year was
expected to be similar to the first half of the year. However, N+1 advised that
Cathay was performing below market expectations, and that a trading update
should be made as soon as possible. N+1 further stressed that while it had not
seen Cathay’s results, from the comments made by Cathay, it appeared that the
gap in performance compared to market expectations was impossible to close, and
that if Cathay were to wait to make a trading update, it would be in breach of its
regulatory obligations. At this point, Mr Siu and the other individual on the call
informed N+1 that they could not make a decision on whether to publish an update,
and that they would have to speak with Mr Lee and obtain Board approval (due to
the fact that, as noted in paragraph 4.5, decisions that were not business as usual
would in practice be approved by the Board).
4.40.
On 28 November 2015, N+1 followed this call up with written advice to Mr Siu and
another individual at Cathay reflecting the advice provided on the call. On both
occasions, N+1 requested information from Mr Siu and another individual at Cathay
showing Cathay’s financial performance. Mr Siu sent a copy of N+1’s written advice
shortly after receipt to Mr Lee.
4.41.
A second call with N+1 was arranged for 2 December 2015 so that Mr Lee could
speak with N+1. At this point, Cathay still did not have a forecast from Lansen for
the year-end, but as with the 27 November 2015 call, had two months’ forecasts
and ten months’ financial performance for all of its subsidiaries except Lansen, but
only nine months’ results for Lansen. In the call, Mr Lee provided further
information
about
the
performance
of
Lansen,
which
he
stated
was
underperforming. Mr Lee
covered a number of factors impacting Lansen’s
performance, such as the CFDA penalty on Ningbo Liwah, and stated that there was
no argument that a trading update to the market needed to be made. Mr Siu was
present on the call although his participation was minimal.
4.42.
However, on the 2 December 2015 call Mr Lee said that his view was that there
was a choice about when that announcement could be made. Mr Lee anticipated
making an announcement in three weeks’ time and considered that the role of N+1
was to assist Cathay in how it could delay disclosure. Specifically, he wished to
coincide the trading update with Lansen’s announcement of the penalty imposed
on Ningbo Liwah, in order to avoid multiple announcements to the market. N+1
advised on a number of occasions during the call that Mr Lee was incorrect in his
view, and that a trading update needed to be made irrespective of the fact that a
later announcement would need to be made about Lansen. N+1 further stated that
it appeared there was no argument that a trading update was needed, and urged
Cathay and Mr Lee to take its advice. Again, N+1 requested information showing
the financial performance of Cathay.
4.43.
On 2 December 2015, Mr Siu sought legal advice on behalf of Cathay (which it has
disclosed to the Authority under a waiver of legal advice privilege) on whether
Cathay could delay an announcement on its financial performance to coincide with
the announcement of the penalty on Lansen. On 3 December 2015 the legal advice
was received by Mr Siu and Mr Lee received a copy on the same day. However, the
legal advice agreed with N+1, and noted that it appeared an announcement would
need to be made. The legal advice specifically advised Cathay that it could not
choreograph its announcements and delay disclosure to coincide with the
announcement of Lansen’s penalty. The legal adviser attached the Authority’s
technical note on assessing and handling inside information which had been
published in December 2012. The technical note stated that it was not acceptable
for issuers to attempt to choreograph the assessment and possible disclosure of
various and offsetting information that might individually meet the tests for inside
information. The technical note also stated that issuers should have a consistent
procedure for determining what information is sufficiently significant for it to be
deemed inside information and for the release of that information to the market.
4.44.
Following this, Mr Siu contacted N+1 on 4 December 2015, and confirmed that
Cathay would begin drafting a trading update to put to the Board for approval on
10 December 2015. However, a trading update was not drafted and put to the
Board.
The December forecast
4.45.
Lansen provided its results and forecasts for the full financial year to Cathay on 4
December 2015. Lansen’s ten months’ results showed that it had realised a profit
after tax of USD 7,149,000, which was 44% below its own expectations. Mr Lee
received those results and forecasts. Between 4 and 6 December, Mr Lee called
Lansen to query the basis of Lansen’s forecasts. These enquiries established that
Lansen had incorporated the costs of its new products, but did not forecast any
revenue from the new products as Lansen had adopted a conservative approach to
its forecasts. Mr Lee did not ask Lansen to make any revisions to its forecasts. This
was because Lansen had its own process to follow, and Mr Lee as CEO on behalf of
Cathay accepted the figures that had been provided by Lansen. On 6 December
2015, Mr Siu received the forecast.
4.46.
Individuals at Cathay consolidated these results and forecasts by 6 December 2015.
Mr Siu was involved in reviewing the forecasts and preparing the Board papers and,
following review by Mr Lee, sending them to the Board as part of its Board pack for
the Board meeting taking place on 10 December 2015. The forecasts showed that
Cathay was now projecting a year-end loss after tax of USD 9,866,000. N+1’s
market forecast for year-end was a loss after tax of USD 6,300,000. This year-end
net loss was not analysed or discussed in the Board papers and Cathay’s
calculations were reviewed by Mr Lee and approved by him to form the Board pack.
Therefore, Cathay’s forecast figure represented an approximate 56% deviation in
losses after tax from N+1’s analyst note which set the market expectations, and
confirmed the position set out by N+1 to Mr Lee in the call on 2 December 2015 in
which Mr Siu also participated.
4.47.
Prior to the Board meeting, Mr Lee was involved in discussions with the CFDA about
the penalty to be imposed on Ningbo Liwah, and whether the penalty could be
either reduced or paid by instalments. However, Mr Lee knew prior to the Board
meeting that the CFDA would not change the amount of the penalty. Mr Lee
accordingly knew the final figure and that the penalty might be paid by instalments,
the first of which, totalling RMB 3,658,177,32 (equivalent to approximately USD
566,688), might be payable before year-end. The CFDA subsequently confirmed
that Ningbo Liwah was permitted to make payment by instalments in a notice to
Ningbo Liwah dated 11 December 2015. The penalty was not included in the
forecast figures provided for the Board meeting on 10 December 2015. Mr Siu was
aware that Cathay’s financial performance would be further adversely impacted by
the penalty because Mr Lee forwarded to him notification of the penalty against
Ningbo Liwah.
4.48.
On 10 December 2015, the Board, including Mr Siu, convened and considered the
results and expected financial performance of Cathay, and heard oral updates from
each of its subsidiaries on factors that had impacted performance. The Board was
not provided with a draft trading update at this meeting, as set out in paragraph
4.44; nor was there any document in the Board pack relating to Mr Lee’s call with
N+1 on 2 December 2015, in which Mr Siu also participated. The Board pack
included information on the forecast loss after tax of USD 9,866,000 by Cathay,
but did not include any document showing the financial penalty for Lansen. The
performance of Cathay was acknowledged in the minutes. Mr Siu provided the
Board with a report on the Ningbo Liwah incident but did not alert the Board to the
adverse impact that a penalty would have on Cathay’s financial performance. The
performance of Cathay, including its full year financial projections was discussed at
the Board meeting. Cathay has stated, and the Authority accepts, that an oral
update was given about potential significant new product sales by Lansen which
might occur before year-end, in such volumes that Lansen would meet or exceed
its new product budget set in May 2015. This would mean that Lansen would have
to generate revenue of USD 11,305,000 for new products, despite having only
generated USD 87,000 in revenue between May (the first time Lansen could sell
the products) and October 2015. Had this level of revenue been generated in the
short period from October 2015 to year-end, Cathay’s performance might not have
missed the market expectations set by N+1’s analyst note in August 2015. Cathay
has stated to the Authority that it was agreed at the Board meeting that, should
these new sales not materialise by 18 December 2015, an announcement would
need to be made to the market.
4.49.
Cathay has stated to the Authority that Lansen informed it that it was “confident”
that such new sales could occur, and that Cathay thought concluding such sales
before year-end was “an achievable scenario”. On 10 December 2015, the Board
had the 6 December 2015 forecast incorporating what Cathay’s senior management
later described to the Authority as a “conservative scenario” for Lansen and that
Cathay was at the time of the Board meeting projecting a year-end loss after tax
of USD 9,866,000, excluding the CFDA penalty. Nevertheless, these deliberations
or conclusions were not minuted; nor was there contemporaneous documentary
evidence at Cathay or Lansen referring to or discussing such new potential sales or
the Board’s analysis of, or conclusions in relation to, them.
Preparation of the December announcement
4.50.
On 11 December 2015, Mr Siu sent the completed forecasts and results to N+1,
with a draft trading update. This was the first time N+1 had seen Cathay’s financial
performance. Mr Siu also held a call with N+1 to discuss the content of any update.
Mr Siu stated during this call that the penalty to be imposed on Ningbo Liwah might
be announced by Lansen in the following week, and that he hoped Cathay’s trading
update could go out at the same time so that negative news did not hit the market
twice. Mr Siu also noted that Cathay did not want its trading update to trigger an
announcement for Lansen. Mr Siu made no other statement about when Cathay
might issue the December Announcement, and did not provide N+1 with any
deadline for a response on the draft trading update.
4.51.
Between 11 and 17 December 2015, Mr Siu and N+1 attempted to speak on a
number of occasions to discuss the wording of the December Announcement. It
was only after a conversation had taken place, in which N+1 sought clarification on
Cathay’s results and forecasts, that N+1 was able to provide Mr Siu with detailed
comments on the drafting of the December Announcement, which it did on 17
December 2015.
4.52.
However, also on 18 December 2015, it was confirmed by Mr Siu that he received
information from Mr Lee that Lansen would shortly be announcing the CFDA penalty
to the market. Mr Siu redrafted the trading update so that it could incorporate the
penalty, which Mr Lee then reviewed prior to circulation to the Board. Cathay has
stated to the Authority that it had to liaise with Lansen on the wording of the
announcement, to ensure consistency of messaging. As a consequence of re-
drafting the trading update, and multiple sign-off procedures, it was not until 24
December 2015 that the Board approved the December Announcement by email.
4.53.
The December Announcement was released to the market on 29 December 2015,
the first working day after approval had been granted by the Board. The
announcement stated that, due to operating expenses being significantly higher
than anticipated, Cathay expected to report a material loss before tax for the year
ending 31 December 2015, a performance which would be markedly below market
expectations. It also disclosed the CFDA penalty. On the day of the December
Announcement, Cathay’s share price dropped by 18.2%.
Communications with the Authority
Statements in communications
4.54.
Between 29 February 2016 and 16 August 2016, Cathay corresponded with the
Authority about the timing of the December Announcement. In a letter dated 4
February 2016 marked for the attention of Mr Siu, the Authority wrote to the
directors of Cathay to request information about the December Announcement. The
Authority asked Cathay, amongst other things, to provide ‘details of any re-
forecasting undertaken by the Company as a matter of course or in light of the
additional spending identified above’ (the spending being the increase in operating
expenses referred to in the December Announcement).
4.55.
In a letter dated 29 February 2016, Mr Siu responded to this request on behalf of
Cathay by stating ‘the Company prepares its year-end projections twice a year, one
in late July (based on 6 months actual and 6 months projection) prepared for a
regular August board meeting, and another in late November (based on 10 months
actual and 2 months projection) prepared for a regular December board meeting;
and at such other times as may be necessary (for example when the actual numbers
are not performing in line with the management’s expectation or with market
expectations)’. Cathay did not provide any supporting contemporaneous evidence,
nor did it provide the figures for the relevant 2015 forecasts.
4.56.
In a letter dated 2 March 2016 marked for the attention of Mr Siu, the Authority
asked Cathay to provide ‘projected figures for the period sourced from projections
as they were at the time along with any updated projections, indicating when any
such update was made’.
4.57.
In response, in a letter dated 15 April 2016, Mr Siu stated on behalf of Cathay: ‘as
noted in our reply on 29 February 2016, Cathay prepares its year-end projections
twice a year, one in late July (based on 6 months actual and 6 months projection)
prepared for a regular August board meeting, and another in late November (based
on 10 months actual and 2 months projection) prepared for a regular December
board meeting, and at such other times as may be necessary. The projections in
late July and late November 2015 are shown below’. Cathay provided the following
information about its 2015 forecasts:
(a)
for the interim forecasts, it provided complete forecasts including figures
attributed to Lansen. Those figures suggested that Cathay had forecast a
profit before tax of USD 6,514,000; and
(b)
for the year-end forecasts, it provided complete forecasts, including figures
representing substantial profits from new product sales at Lansen. Those
figures suggested that Cathay had forecast a profit before tax of USD
55,000.
4.58.
Throughout its correspondence with the Authority, when commentating on the
forecasts, Mr Siu, in letters sent on behalf of Cathay, used the phrases ‘in the
projection exercise conducted in late July 2015’, ‘at the time of conducting this late
November projection exercise’ and ‘in July, Lansen provided the company with the
new product projections’ to describe the timing of the forecasts.
4.59.
Mr Lee reviewed and approved the communications prior to submission to the
Authority.
Cathay’s 2015 interim forecasts
4.60.
Despite the forecast figures provided to the Authority taking into account forecasts
from Lansen, as noted in paragraph 4.22 Cathay did not actually receive any interim
year-end forecasts from Lansen, which at the time represented between 70% and
80% of its business. The Board therefore only considered forecasts for the
remaining subsidiaries. The absence of any forecasts from Lansen is reflected in
the Board pack for 26 August 2015, where Lansen’s forecasts are blank. Therefore,
had Mr Siu responded to the Authority on behalf of Cathay with contemporaneous
information from its actual projection exercise, he should have provided the
forecast which was put to the Board on 26 August 2015, including blank forecasts
for Lansen.
4.61.
The Board also did not have any contingency plan in place to forecast Lansen’s
financial performance in the event that Lansen was unable to provide a forecast.
Further, the first time in 2015 that year-end forecasts for Lansen were received by
Cathay was on 4 December 2015, and these did not include any, or any material,
forecast profits from new products.
4.62.
Cathay’s letter of 15 April 2016 to the Authority described the interim new products
forecast which it included as having been based on six months’ results and six
months’ projections. In fact, the figures included by Cathay in the letter
attributable to Lansen’s new product forecasts were based on the budget for the
new products, which was set by Lansen in May 2015.
4.63.
Further, the figures included by Cathay in its letters to the Authority attributable to
interim forecasts for Lansen’s existing business (that is, those reviewed by the
Board at its meeting of 26 August 2015) were sourced from scenario based analysis
figures created by Lansen in September 2015. The figures were not intended by
Lansen to be a forecast, and were not treated by Cathay as a forecast during the
2015 Relevant Period. These figures did not exist at the time of the Board meeting
in August 2015 and were therefore never set out in any paper provided to the Board
or otherwise brought to the Board’s attention for that meeting.
4.64.
Mr Siu was responsible for drafting Cathay’s letters to the Authority and was
therefore aware prior to submission to the Authority that the figures provided to
the Authority were created for the benefit of the Authority, and were not available
to Cathay including its Board at the relevant times in 2015.
Cathay’s 2015 year-end forecasts
4.65.
Despite the forecast figures provided to the Authority
taking into account
substantial profit from new product sales at Lansen, as noted at paragraph 4.61,
Lansen’s own forecasts sent to Cathay on 4 December 2015 did not actually include
any, or any material, profits from new product sales.
4.66.
Therefore, the Board did not receive or consider a forecast which included any, or
any material, profits from new products, as these were not contained in the Board
pack for the 10 December 2015 Board meeting, which forecast a loss after tax of
USD 9,866,000. Therefore, had Cathay responded to the Authority with information
from the time of the Board meeting, it should have provided the forecast which was
actually put to the Board on 10 December 2015. The information which Mr Siu
provided to the Authority on behalf of Cathay in response to its request for
information that Cathay forecast a profit (before tax) of USD 55,000 was wrong,
and not contemporaneous with the Board meeting which had the loss (after tax)
figure of USD 9,866,000 actually forecast in the contemporaneous documents
before the Board.
4.67.
Cathay’s letter of 15 April 2016 to the Authority described the year-end new
products forecast which it included as having been based on ten months’ results
and two months’ projections. In fact the figures included by Cathay in the letter
attributable to Lansen’s new product forecasts were based on the budget for the
new products, which was set by Lansen in May 2015. Cathay did not inform the
Authority during the 2016 Relevant Period that this was the case.
4.68.
Mr Siu drafted the letters sent on behalf of Cathay prior to submission to the
Authority, and signed them, and was aware that the original forecast in December
2015 did not include any forecasts for new product sales.
General statements made by Cathay
4.69.
As noted at paragraph 4.55 above, Mr Siu stated to the Authority, on behalf of
Cathay, that it prepared additional year-end projections if it was not performing in
line with market or management expectations. However, as Cathay did not monitor
its performance against market expectations in 2015, Cathay would have been
unable to prepare additional projections in the event of a perceived failure to meet
those expectations. In fact, in 2015, Cathay monitored its performance against its
own internal budget, however this was not the same as the market expectations
set out in analyst notes by N+1 in May and August 2015. As set out in paragraphs
4.25 and 4.26 above, there was no monitoring of interim projections by Cathay due
to the absence of information from Lansen. Mr Siu was aware that these statements
were incorrect as he knew that Cathay only created forecasts twice a year but still
presented incorrect information to the Authority.
5.
FAILINGS
5.1.
The facts and matters referred to above resulted in Mr Siu being knowingly
concerned in Cathay’s breach of the Authority’s Listing Principle 2. This breach is
set out below and the provisions referred to are set out at Annex A to this Notice.
Cathay’s obligations
5.2.
During the 2016 Relevant Period, Listing Principle 2 stated:
“A listed company must deal with the Authority in an open and co-operative
manner.”
It is a factual matter whether or not a company has been open and co-operative in
how it responds to requests for information from the Authority.
Cathay’s breaches
5.3.
Cathay’s statements in the 2016 Relevant Period, and the financial information
provided
to the Authority, implied that during 2015 Cathay had stronger
procedures, systems and controls in place for its forecasting and monitoring
procedures than were actually in place. Cathay gave the impression to the Authority
that forecasts were available to its Board when they were not. For example,
Cathay’s letter of 15 April 2016 to the Authority described the interim new products
forecast which it included as having been based on six months’ results and six
months’ projections. In fact, the figures included by Cathay in the letter
attributable to Lansen’s new product forecasts were based on the budget for the
new products, which was set by Lansen in May 2015. By way of further example,
the figures included by Cathay in its letters to the Authority attributable to interim
forecasts for Lansen’s existing business (that is, those reviewed by the Board at its
meeting of 26 August 2015) were sourced from scenario based analysis figures
created by Lansen in September 2015. The figures were not intended by Lansen to
be a forecast, and were not treated by Cathay as a forecast during the 2015
Relevant Period. These figures did not exist at the time of the Board meeting in
August 2015 and were therefore never set out in any paper provided to the Board
or otherwise brought to the Board’s attention for that meeting.
5.4.
Further, the figures provided to the Authority by Cathay for its forecasts implied
that Cathay might not have had a material deviation from market expectations (or
might have had a smaller deviation than it actually did). These figures also implied
that Cathay might not have needed to issue a trading update to the market during
the 2015 Relevant Period. However, this implied position is not supported by any
contemporaneous evidence. Had the Authority accepted Cathay’s statements and
figures as provided in its communications, the Authority might have considered
Cathay’s financial performance at the relevant times to have been better than it
was and chosen to conduct no further investigations.
5.5.
The Authority considers that its requests were clear as to what information should
be provided to it and that this concerned giving explanations of events surrounding
the December Announcement. Accordingly, the Authority considers that Cathay
understood the requests and knew that the information it provided did not respond
to the Authority’s requests. Cathay however did not provide any explanation that
different information to that requested was being provided and it appeared that
what was provided was responsive to the Authority’s requests.
5.6.
The Authority is dependent on companies and their directors providing clear and
accurate information to it, in order to ensure that it can effectively monitor and
regulate the integrity of the financial markets in the UK. It is a company’s
responsibility to deal with the Authority in an open and co-operative manner
including providing complete and accurate information to the Authority.
5.7.
The Authority has had regard to, and accepts, Cathay’s explanation that it did not
intend to mislead the Authority. However, Cathay provided different information to
that which was requested and did so without any explanation. Cathay therefore
acted unreasonably in the way that it dealt with the Authority’s information
requests.
5.8.
The Authority therefore considers that Cathay did not deal with the Authority in an
open and co-operative manner, in breach of Listing Principle 2.
Mr Siu’s knowing concern in Cathay’s breaches
5.9.
The Act permits the Authority to impose a penalty, of such amount as it considers
appropriate, on a director who was knowingly concerned in the contravention of
the Authority’s rules. A person is knowingly concerned when he or she has actual
knowledge of the facts and is aware of his or her involvement in the contravention.
5.10.
The Authority’s requests were clear as to what information should be provided to it
and that this concerned giving explanations of events surrounding the December
Announcement. Mr Siu was aware of what was being requested. However, Cathay,
without any explanation, provided inaccurate and incomplete information to the
Authority regarding the forecasts it produced in 2015, and how it had calculated
those forecasts. Mr Siu knew when he was drafting the relevant communications,
by virtue of his membership of Cathay’s Board and his involvement in the
forecasting and financial process for releasing market announcements, that the
information provided was not a contemporaneous record
of the financial
information available to Cathay during the 2015 Relevant Period. Although Mr Siu
had this knowledge, he drafted and signed the communications providing the non-
contemporaneous information without any explanation.
5.11.
The Authority has had regard to, and accepts, Mr Siu’s explanation that the
intention behind providing materially different financial information was not to
mislead the Authority but to reflect Cathay’s mind-set at that time. However, Mr
Siu drafted and signed communications which provided different information to that
which was requested and was involved in Cathay acting unreasonably in the way
that it dealt with the Authority’s information requests.
5.12.
The Authority therefore considers that Mr Siu was knowingly concerned in Cathay’s
breaches of Listing Principle 2.
6.
SANCTION
Financial penalty
6.1.
The Authority’s policy for imposing a financial penalty is set out in Chapter 6 of
DEPP. In determining the appropriate financial penalty, the Authority has had
regard to Chapter 6 of DEPP.
6.2.
The total financial penalty which the Authority has decided to impose on Mr Siu for
the 2016 Relevant Period is £40,200. This penalty is calculated as set out below.
The Authority considers that taking this action helps to achieve its strategic
objective of ensuring that the relevant markets function well and the operational
objectives of protecting and enhancing the integrity of the UK financial system and
ensuring an appropriate degree of protection for consumers.
Step 1 – Disgorgement
6.3.
Pursuant to DEPP 6.5B.1G, at Step 1 the Authority has determined that Mr Siu did
not derive any financial benefit directly from the breach. The Step 1 figure is
therefore £0.
Step 2 – Seriousness of the breach
6.4.
Pursuant to DEPP 6.5B.2G(1), at Step 2, the Authority determines a figure that
reflects the seriousness of the breach based on a percentage of an individual’s
relevant income. DEPP 6.5B.2G(2) provides that where the breach lasted less than
12 months, the relevant income will be that earned by the individual in the 12
months preceding the end of the breach. Relevant income is calculated based on
the gross amount of all benefits received (including salary, bonus and share
options) by the individual from the employment in connection with the occurrence
of the breach and for the period of the breach.
6.5.
Mr Siu’s remuneration for the year ending 31 December 2015 was USD 274,000,
comprising fees and salary of USD 253,000 and bonuses of USD 21,000. This
equated to £185,9392.
6.6.
Mr Siu’s remuneration for the year ending 31 December 2016 was USD 274,000,
comprised fees and salary of USD 253,000, and bonuses of USD 21,000. This
equated to £210,4133.
6.7.
Mr Siu’s relevant income is comprised of the income earned in the 12 months up
to 16 August 2016 (i.e. the end of the 2016 Relevant Period). This is calculated by
taking the proportion of the total 2015 income covering the period from 16 August
2015 to 31 December 2015 and adding the proportion of the total 2016 income
covering the period from 1 January 2016 to 15 August 2016. Mr Siu’s relevant
income is therefore £201,372.
6.8.
Pursuant to DEPP 6.5B.2G(5), the Authority considers that a sliding scale of 0-40%
of relevant income (applied according to the seriousness of the breach) is
appropriate in order that the penalty properly reflects the seriousness of the breach.
2 Calculated using the GBP/USD exchange rate of 1.4736 as at 31 December 2015.
3 Calculated using the GBP/USD exchange rate of 1.3022 as at 16 August 2016.
Level of seriousness
6.9.
In assessing the seriousness level for the purpose of penalty, the Authority takes
into account various factors which reflect the impact and nature of the breach.
Impact of the breach
6.10.
DEPP 6.5B.2G(8) sets out the factors relating to the impact of a breach. Of these,
the Authority considers that a relevant factor is the adverse effect on markets. The
information that Cathay provided to the Authority was materially different to the
actual processes followed in 2015 and the Authority had to take further
investigatory steps to uncover the true position in relation to Cathay’s forecasts,
and only uncovered the true position when Cathay was asked for contemporaneous
evidence of its forecasts in 2015.
6.11.
The provision of inaccurate information to the Authority undermines its ability to
effectively monitor and regulate the integrity of the financial markets in the UK. Mr
Siu drafted and signed the communications before submission to the Authority. He
was aware that the information being provided to the Authority was not an accurate
record of matters known either to the Board or the senior management of Cathay
at the relevant times during 2015.
Nature of the breach
6.12.
DEPP 6.5B.2G(9) sets out the factors relating to the nature of a breach. Of these,
the Authority considers the following factors to be relevant to Mr Siu’s knowing
concern in Cathay’s breach:
(a)
the nature of the rule breached by Cathay. The listing regime relies on
companies being open and co-operative with the Authority, and Listing
Principle 2 is fundamental to the effective functioning of the listing regime;
(b)
the frequency of the breach. Cathay provided inaccurate information to the
Authority on two occasions during the 2016 Relevant Period; and
(c)
whether the individual held a senior position. Mr Siu held a senior position
within Cathay as its FD.
6.13.
DEPP 6.5B.2G(12) sets out the factors which are likely to be considered ‘level 4
factors’ or ‘level 5 factors’. The Authority does not consider any of these factors
relevant; in particular the Authority has not seen any evidence showing that the
breach was committed either deliberately or recklessly. While Mr Siu knew that the
information provided did not correspond to the Authority’s requests, he did not
foresee the likely or actual consequences of his actions; namely, that by providing
no explanation, the information may have appeared to the Authority to have been
responsive to its requests.
6.14.
DEPP 6.5B.2G(13) sets out the factors which are likely to be considered ‘level 1
factors’, ‘level 2 factors’ or ‘level 3 factors’. Of these, the Authority considers the
following factors to be relevant to the breach:
(a)
no profits were made or losses avoided by either Cathay or Mr Siu as a result
of the breach, either directly or indirectly; and
(b)
there was no loss to consumers, investors or other market users.
6.15.
The Authority considers the seriousness of Mr Siu’s knowing concern in the breach
to be level 3. The calculation is therefore 20% of £201,372, which equates to
£40,274.
6.16.
The Step 2 figure is therefore £40,274.
Step 3 – mitigating and aggravating factors
6.17.
Pursuant to DEPP 6.5B.3G, at Step 3 the Authority may increase or decrease the
amount of the financial penalty arrived at after Step 2 to take into account factors
which aggravate or mitigate the breach.
6.18.
The Authority has taken into account Cathay’s (including Mr Siu’s) co-operation in
waiving privilege over the legal advice Cathay received on 3 December 3015, and
that it later provided corrected information about the 15 April 2016 letter, and an
apology. However, the Authority does not consider that those matters provide
sufficient mitigation to warrant a reduction in the financial penalty. The Authority
does not consider there to be any factors which aggravated Mr Siu’s knowing
concern in the breach and there should be no adjustment to the Step 2 figure.
6.19.
The Step 3 figure is therefore £40,274.
Step 4 – adjustment for deterrence
6.20.
Pursuant to DEPP 6.5B.4G, if the Authority considers the figure arrived at after Step
3 to be insufficient to deter the individual who committed the breach, or others,
from committing further or similar breaches, then the Authority may increase the
penalty.
6.21.
The Authority considers that the Step 3 figure of £40,274 represents a sufficient
deterrent to Mr Siu, and so has not increased the penalty at Step 4.
6.22.
The Step 4 figure is therefore £40,274.
Step 5 – settlement discount
6.23.
No settlement discount is applicable. The Step 5 figure is therefore £40,200
(rounded down to the nearest £100).
7.
REPRESENTATIONS
7.1.
Annex B contains a brief summary of the key representations made by Mr Siu and
how they have been dealt with. In making the decision which gave rise to the
obligation to give this Notice, the Authority has taken into account all of the
representations made by Mr Siu, whether or not set out in Annex B.
8.
PROCEDURAL MATTERS
8.1.
The following paragraphs are important.
Decision maker
8.2.
The decision which gave rise to the obligation to give this Notice was made by the
Regulatory Decisions Committee.
8.3.
This Notice is given under section 92 of the Act and in accordance with section 388
of the Act.
The Tribunal
8.4.
Mr Siu has the right to refer the matter to which this Notice relates to the Tribunal.
Under paragraph 2(2) of Schedule 3 of the Tribunal Procedure (Upper Tribunal)
Rules 2008, Mr Siu has 28 days from the date on which this Notice is given to him
to refer the matter to the Tribunal. A reference to the Tribunal is made by way of
a signed reference notice (Form FTC3) filed with a copy of this Notice. The
Tribunal’s contact details are: The Upper Tribunal, Tax and Chancery Chamber,
Fifth Floor, Rolls Building, Fetter Lane, London EC4A 1NL (tel: 020 7612 9730;
email fs@hmcts.gsi.gov.uk). Further information on the Tribunal, including
guidance and the relevant forms to complete, can be found on the HM Courts and
Tribunal Service website:
8.5.
A copy of the reference notice (Form FTC3) must also be sent to the Authority at
the same time as filing a reference with the Tribunal. A copy of the reference notice
should be sent to Stephen Robinson at the Financial Conduct Authority, 12
Endeavour Square, London E20 1JN.
8.6.
Once any referral is determined by the Tribunal and subject to that determination,
or if the matter has not been referred to the Tribunal, the Authority will issue a
Final Notice about the implementation of that decision.
Access to evidence
8.7.
Section 394 of the Act applies to this Notice.
8.8.
The person to whom this Notice is given has the right to access:
(a)
the material upon which the Authority has relied in deciding to give this
Notice; and
(b)
the secondary material which, in the opinion of the Authority, might
undermine that decision.
Confidentiality and publicity
8.9.
This Notice may contain confidential information and should not be disclosed to a
third party (except for the purpose of obtaining advice on its contents). Section
391 of the Act provides that a person to whom this Notice is given or copied may
not publish the Notice or any details concerning it unless the Authority has
published the Notice or those details.
8.10.
However, the Authority must publish such information about the matter to which a
decision notice or final notice relates as it considers appropriate. Mr Siu should be
aware, therefore, that the facts and matters contained in this Notice may be made
public.
Authority contacts
8.11.
For more information concerning this matter generally, contact Stephen Robinson
(direct line: 020 7066 1338) or Kevin Oh (direct line: 020 7066 4312) of the
Enforcement and Market Oversight Division of the Authority.
Graham Collett, Manager, on behalf of
Deputy Chair, Regulatory Decisions Committee
ANNEX A
RELEVANT STATUTORY AND REGULATORY PROVISIONS
The statutory and regulatory provisions set out below are the versions that were in force
in the period between 29 February 2016 and 16 August 2016 (i.e. the 2016 Relevant
1.
RELEVANT STATUTORY PROVISIONS
1.1.
The Authority’s general duties established in section 1B of the Act include the
strategic objective of ensuring that the relevant markets function well and the
operational objectives of protecting and enhancing the integrity of the UK financial
system and securing an appropriate degree of protection for consumers.
1.2.
Section 91(1) of the Act:
“(1) If the [Authority] considers that-
(a) an issuer of listed securities, or
(b) an applicant for listing,
has contravened any provision of listing rules, it may impose on him a penalty of
such amount as it considers appropriate.”
1.3.
Section 91(2) of the Act:
“(2) If, in the case of a contravention by a person referred to in subsection (1)
[(“P”)], the [Authority] considers that another person who was at the material time
a director of P was knowingly concerned in the contravention, it may impose upon
him a penalty of such amount as it considers appropriate.”
2.
RELEVANT REGULATORY PROVISIONS
2.1.
Listing Principle 2: “A listed company must deal with the Authority in an open
and co-operative manner”.
ANNEX B
REPRESENTATIONS
1. Mr Siu’s representations (in italics), and the Authority’s conclusions in respect of
them, are set out below.
The letters of 29 February 2016 and 15 April 2016 presented a reasonable, full and
accurate picture of events as they occurred in 2015
2. The written projection material prepared for the Board in 2015 did not fully reflect
the Board’s considerations at the time. While the written projection material
prepared for the Board in August 2015 contained no data for Lansen, at the August
2015 Board meeting the Cathay Board believed that Lansen was likely to perform
similarly in the second half of the year to how it had performed in the first half, and
was specifically aware of Lansen’s budget for new product sales, which had been
delivered to Cathay in May 2015. In December 2015, the written projection
material prepared for the Board contained no data relating to potential new stocking
orders for Lansen. In fact, the Cathay Board received an oral update at that
meeting that Lansen still expected significant new product sales to occur before
year-end in such volumes that Lansen would have met or exceeded its product
budget set in May 2015. Thus, the data presented to the Authority in the letter of
15 April 2016 did reflect the financial information available to the Cathay Board in
the broader sense. It was not made clear by the Authority in its requests that all
that was required was written material; the information provided was in fact
“sourced from projections as they were at the time”, albeit those projections were
reported orally.
3. The two letters from Cathay to the Authority made no representation about the
strength or otherwise of Cathay’s systems and controls, which were outside the
scope of the correspondence at the time. The Authority told Cathay in 2016 that it
was investigating whether Cathay had complied with DTR 2.2.1R and with another
provision of the Listing Rules. In these circumstances, Cathay was rightly focused
on explaining the information it considered during 2015, not on its written record-
keeping or the processes followed by the Board.
4. The Authority’s finding that Cathay was in breach of Listing Principle 2 is not based
only on the figures provided by it in its letter of 15 April 2016 regarding projected
new product sales at Lansen. It is based on the statements made, and financial
information provided, in its letters of 29 February 2016 and 15 April 2016.
5. The Authority considers that its requests for information were clear and that the
responses provided by Cathay in the two letters were inaccurate and misleading.
In its letter of 4 February 2016, the Authority requested “details of any re-
forecasting undertaken by the Company as a matter of course or in light of the
additional spending identified above”. Cathay’s letter of 29 February 2016
incorrectly stated that it prepared twice-yearly projections and additional
projections when it was not performing in line with the management’s expectations
or with market expectations. In 2015 Cathay did not, in fact, monitor its
performance against market expectations, and did not monitor interim projections
due to the absence of information from Lansen. The letters thereby implied that
Cathay’s procedures, systems and controls were better than was in fact the case.
6. Further, the request by the Authority in its letter of 2 March 2016 was clear in
requesting figures sourced from projections “as they were at the time” along with
any updated projections, indicating when those were made. This was a clear
request to provide contemporaneous figures from actual projection exercises, and
it was clear from the Authority’s letter that it needed the information in order to
understand how Cathay was able to monitor its financial performance against
market expectations. The figures set out in Cathay’s letter of 15 April 2016 did
not reflect actual projection exercises as they were at the time, but the letter
suggested (in several places) that they did. Further, if Cathay considered it would
have been misleading to provide the Authority with only the written material (or
figures from written material) because it would not have accurately reflected
Cathay’s view of Lansen’s anticipated performance, it could and should have
explained this in its letter.
7. In fact, however, the Authority considers that the data in the letter of 15 April 2016
does not accurately represent the information considered by the Board at the time.
For example, certain figures that were said by Cathay to have been considered by
the Board in August 2015 were from September 2015 and thus did not exist, and
could not have been considered by the Board, when they were said to have been
so considered.
Procedural unfairness
8. The Authority failed to ask Mr Siu questions in interview about his personal
involvement in and/or knowledge of the potential breach of Listing Principle 2 by
Cathay. The topic of the 2016 communications was covered extremely briefly and
it is clear from the interview transcripts that he was answering questions put to
him in his capacity as a representative of Cathay rather than as an individual. He
was not being asked (or responding) by reference to his own awareness of the facts
contained in the letters. It is unfair for the Authority to pursue a case of knowing
concern against Mr Siu without having asked basic relevant questions at interview
and thereby allowing him the opportunity to explain his position and state of mind.
9. Mr Siu was asked some questions in interview about his involvement in the drafting
of the letters and his state of mind at the time. The Authority considers that he
has had ample opportunity to put forward evidence on his own behalf, both before
the issue of the Warning Notice to him on 18 December 2018 and afterwards (which
he has done in his written and oral representations summarised here). The
Authority does not consider Mr Siu has suffered any procedural unfairness.
Mr Siu was not knowingly concerned in any breach because he lacked the
relevant knowledge
10.“Knowing concern” requires actual awareness at the time of the alleged
contravention by the company of all the material facts which give rise to the
contravention. This is a wholly subjective test, focusing on Mr Siu’s state of
knowledge. There is no objective element; it is not enough to say that the person
in question should have known of the facts which made the act complained of a
contravention.
11.Mr Siu did not complete all the drafting of the 15 April 2016 letter himself. He
delegated the preparation of the financial data contained in the letter to another
member of his team, and did not give instructions as to how this should be done.
After inserting the details into the letter, that individual did not explain the approach
he had taken. When Mr Siu reviewed the letter, he could see that the projection
data included data showing Cathay’s 2015 expectations regarding new product
sales, but did not recall that in August and December 2015 the written projection
materials produced for the Board had not included such data. He did not find the
inclusion of information about new product sales surprising, since he was aware
that such sales had been very much in the consciousness of the Cathay Board in
2015: in July because the budget for new product sales had recently been delivered
by Lansen and in December because the Board had received an oral update that
Lansen was expecting significant new product sales before year-end, in such
volumes that Lansen would meet or exceed its new product budget set in May 2015.
12.Mr Siu did not check the figures provide by his team member against the
contemporaneous materials submitted to the Board because it was not his role to
do so, and he would not have had time given his other work.
13.Further, he did not appreciate that the Authority expected Cathay to provide
projection data based only on contemporaneous written projections, or wanted
Cathay to distinguish between information in contemporaneous written projection
documents provided to the Board and other information considered by the Board
at the time of reviewing the projections. He would therefore not have had cause
to check the figures in the 15 April 2016 letter even if he had recalled that the
figures relating to new product sales had not been included in the 2015 Board
materials.
14.The Authority rightly recognises that Mr Siu did not intend to mislead, and this must
be because it is satisfied either that he was not conscious of the meaning of the
Authority’s request and/or of the difference between the request and the response.
15.The Authority notes that Mr Siu’s representations only address the question of the
figures included in Cathay’s letter of 15 April 2016, but (as set out above) the
Authority’s concerns are wider than that. Cathay’s letter of 29 February 2016
incorrectly stated that it prepared twice-yearly projections and additional
projections when it was not performing in line with the management’s expectations
or market expectations, and this was substantially repeated in the letter of 15 April
2016. The letters thereby implied that Cathay’s procedures, systems and controls
were better than was in fact the case. Mr Siu has not disputed that he understood
what was being requested or that the statement in the letters was incorrect, and
the Authority considers there to be sufficient evidence that he knew that in the
2015 Relevant Period Cathay only created twice-yearly forecasts.
16.In relation to the figures in the letter of 15 April 2016, the Authority considers it is
clear that it was asking for projection figures sourced from contemporaneous
projection exercises, and that is what the letter purported to provide. In the letter,
Mr Siu told the Authority that the figures were sourced from projection exercises
conducted in July and November 2015, and prepared for Board meetings in August
and December 2015.
The Authority does not consider he would have been
unaware, at the time of preparing the letter, that the projections prepared for the
Board in 2015 lacked Lansen data. The Authority considers that he would have
remembered the lack of projected figures for Lansen in July 2015 and the lack of
data relating to substantial new product sales in December 2015, given the strained
and difficult discussions which Cathay had with its advisers about its projections,
its inability to meet market expectations and its obligation to make disclosure.
17.The Authority considers that Mr Siu must have been aware that the figures compiled
by his delegate did not exist at the time of the relevant Board meetings and that
therefore the information provided in the draft response prepared by his delegate
was different to that requested by the Authority. Mr Siu was responsible for
providing information to the Authority on behalf of Cathay, and therefore had actual
involvement in Cathay’s breach, whether or not he delegated the task of compiling
the data and preparing the draft response.
18.Further, Cathay’s lawyers’ later letter correcting the position explained that, in the
absence of any July forecast from Lansen, Cathay sought to use the next best data
available. This is inconsistent with Mr Siu’s representation that he did not recall
that the projections prepared for the Board in 2015 lacked the data about Lansen.
19.The Authority accepts that Mr Siu did not intend to mislead the Authority, in the
sense that he did not foresee the actual or likely consequence of his actions;
namely, that the information may have appeared to the Authority to have been
responsive to its requests.
However, it does not consider he was unaware of the
meaning of the Authority’s request or of the difference between the request and
the response.
Having regard to all the circumstances, the Authority should not take disciplinary
action
20.If the Authority considers Mr Siu to have been knowingly concerned in the alleged
breach by Cathay, having regard to all the circumstances of the case and in
particular the factors listed in DEPP 6.2.1G, the Authority should not take
disciplinary action. As the Authority accepts, Mr Siu was not attempting to mislead
the Authority (DEPP 6.2.1(1)(a) and DEPP 6.2.1(2)(f)); he behaved reasonably and
diligently in the way he went about preparing the letter, delegating parts
appropriately while taking responsibility for other parts, sharing drafts
appropriately and seeking input from advisers; he voluntarily corrected (through
Cathay) the information provided once the issue was brought to Cathay’s attention,
apologised and cooperated fully with the Authority’s investigation (DEPP 6.2.1(2));
and he has never previously been investigated or disciplined by an employer or
regulator (DEPP 6.2(3)).
21.A disciplinary sanction, regardless of the size of the financial penalty imposed,
would have a very serious impact on Mr Siu’s career and future earnings. It will
likely make it much more difficult for him to find future employment and may
impact his pay in any work he can find. Given the stage of Mr Siu’s career, the
cumulative financial impact on Mr Siu is not proportionate to the conduct alleged.
22.The Authority has considered the full circumstances of the case, including (to the
extent relevant) the representations referred to at paragraph 20 above, in reaching
the conclusion that disciplinary action is justified in this case. The Authority does
not consider the taking of disciplinary action against Mr Siu to be disproportionate
in all the circumstances.