FINAL NOTICE

To:
Jin-Yi Lee

Date of birth: August 1957

1.
ACTION

1.1.
For the reasons given in this notice, the Authority hereby imposes on Jin-Yi Lee a

financial penalty of £214,300 pursuant to section 91 of the Financial Services and

Markets Act 2000 (the “Act”) because Mr Lee was knowingly concerned in a number

of breaches by Cathay International Holdings Limited (“Cathay”) of the Listing

Principles and Disclosure Rules and Transparency Rules.

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 Lee was Cathay’s Chief

Executive Officer (“CEO”), and Vice-Chairman of Lansen.

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. There were serious

procedures, systems and controls failings at Cathay which meant that Cathay did

not monitor the full impact of these issues on Cathay’s expected financial

performance for the year ending 31 December 2015.

Cathay’s Listing Principle 1 breach

2.4.
Listing Principle 1 requires a listed company to take reasonable steps to establish

and maintain adequate procedures, systems and controls to enable it to comply

with its obligations. As a premium listed company, the obligations imposed on

Cathay included the Authority’s Disclosure Rules and Transparency Rules (“DTRs”).

2.5.
Cathay breached Listing Principle 1, as during the 2015 Relevant Period:

(a)
Cathay did not have adequate procedures, systems and controls to comply

with its obligations under Chapter 2 of the DTRs in relation to how it would

forecast and monitor how it was performing against market expectations of

its financial performance. In particular, in August 2015 Cathay had been

advised by its appointed advisers in relation to its disclosure obligations and

Cathay gave an assurance that it would monitor its financial performance.

However, Cathay did not take reasonable steps in this regard;

(b)
until 6 December 2015, Cathay failed to produce any completed year-end

forecasts covering the whole of its business as to its expectations of its

financial performance for the financial year ending 31 December 2015; and

(c)
performance monitoring did not include any means of assessing whether the

performance of Cathay constituted inside information satisfying the test set

out in section 118C of the Act.

2.6.
Cathay’s senior management, including Mr Lee as its CEO, were aware of the risk

that Cathay’s actions or inaction could result in a failure to take reasonable steps

to establish and maintain adequate procedures, systems and controls, and failed

adequately to mitigate that risk. Cathay and Mr Lee thereby acted recklessly.

Cathay’s DTR 2.2.1R and Premium Listing Principle 6 breaches

2.7.
DTR 2.2.1R requires an issuer to notify the market as soon as possible of any inside

information which directly concerns it, unless DTR 2.5.1R applies. Premium Listing

Principle 6 requires a listed company to communicate information to holders and

potential holders of its listed equity shares in such a way as to avoid the creation

of a false market in those listed equity shares.

2.8.
As a result of the failings in its procedures, systems and controls, Cathay failed to

disclose to the market as soon as possible on or shortly after 6 December 2015 a

material change in its actual and expected financial performance for the year ending

31 December 2015, when as a result of the deterioration of Cathay’s performance,

Cathay was aware of circumstances in which there would be a 56% deviation from

market expectations of the loss after tax1. Cathay therefore breached DTR 2.2.1R.

Cathay, and Mr Lee as its CEO, were aware, including from advice given to Cathay

by its appointed advisers, of the risk of a breach if it did not make an appropriate

disclosure but recklessly failed to do so.

2.9.
Further, Cathay breached Premium Listing Principle 6 when Cathay, and Mr Lee as

its CEO, recklessly failed, between 6 December 2015 and 29 December 2015, to

release relevant information to the market, and so created a false market in its

listed equity shares.

Cathay’s Listing Principle 2 breach

2.10. Listing Principle 2 requires a listed company to deal with the Authority in an open

and co-operative manner.

2.11. 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

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.

correspondence, 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. Mr Lee reviewed and approved the relevant correspondence with the

Authority.

2.12. 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 Lee being knowingly concerned in Cathay’s breaches

2.13. Mr Lee was a director and CEO 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 breaches, he was knowingly concerned in each of its breaches of Listing

Principle 1, DTR 2.2.1R and Premium Listing Principle 6 and Listing Principle 2.

2.14. The Authority considers the breaches by Cathay, in which Mr Lee was knowingly

concerned, to be particularly serious. Mr Lee, as CEO, failed to ensure that Cathay

was able to comply with its obligations as a listed company. Cathay’s procedures,

systems and controls were so inadequate that it was unable to keep the market

properly informed of its financial performance. As a result, there was a risk that

investors would make decisions based on incomplete information.

2.15. Further, 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.

2.16. The Authority hereby imposes a financial penalty on Mr Lee in the amount of

£214,300 pursuant to section 91 of the Act. This financial penalty consists of:

(a)
a penalty of £128,800 for breaches during the 2015 Relevant Period; and

(b)
a penalty of £85,500 for breaches during the 2016 Relevant Period.

2.17. 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 Procedures and Penalties Manual;

“DTR” or “DTRs” means the Disclosure Rules and Transparency Rules, part of the

Handbook;

“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;

“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. 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. Mr Lee, as a representative of Cathay, sat on Lansen’s

Board of Directors as Vice-Chairman. Lansen and its subsidiaries primarily engage

in the manufacturing and trading of pharmaceutical products in the People’s

Republic of China. Lansen’s 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 year-end.

4.5.
There was no similar formal meeting structure for Cathay’s executive committee;

but the executive directors, including Mr Lee, 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 Lee

4.6.
Mr Lee has been a director of Cathay, and its CEO, since 21 January 2010. During

the 2015 and 2016 Relevant Periods, he was responsible for managing the day to

day business activities of Cathay. Amongst other things, Mr Lee was responsible for

ensuring that effective internal controls and management information systems

were in place, and supporting the operation of the Board by informing Board

members and acting as a liaison between Cathay’s management and the Board. As

part of this role, Mr Lee was responsible for reviewing and approving all Board

papers prior to submission to the Board. As a result, it was Mr Lee who ultimately

decided what matters were put to the Board, including in relation to matters

escalated to him through his reporting lines at Cathay.

Cathay’s business in 2015

4.7.
In March 2015, Cathay’s Board set an internal budget for the year ending 31

December 2015 with a budgeted profit after tax 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. 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.

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.

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 Lee, in his role as Vice-Chairman of Lansen, was directly involved in

the negotiation of the penalty with the CFDA.

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 Lee, as a Board member for Lansen,

approved the new product budget in June 2015.

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 Lee, would also meet 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, 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.

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. However Mr

Lee, as CEO of Cathay, did not receive Cathay’s consolidated results each month,

and as such was reliant on issues within the figures being escalated to him at the

monthly meetings with each subsidiary.

4.14. Cathay also consolidated the monthly results in advance of the regular Board

meetings for the purposes of reviewing Cathay’s financial performance. As noted in

paragraph 4.6, Mr Lee reviewed and approved all Board submissions (which then

formed the Board pack) prior to circulation to the Board. 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

4.15. 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.

4.16. Individuals at Cathay were directly involved in the preparation of 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. Mr Lee, as Vice-Chairman of Lansen, would make those enquiries on

behalf of Cathay rather than being involved in the preparation. Once the forecasts

were consolidated, they were reviewed by Mr Lee in advance of circulating to the

Board.

4.17. The forecasts compared the profit estimate against the budget, as well as a

comparison to the preceding financial year. During the 2015 Relevant Period,

Cathay did not compare the forecasts to the market expectations set out by

analysts at N+1, and therefore in the absence of this, neither Mr Lee nor the Board

considered 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

4.18. 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. The consolidated results, alongside year-end forecasts for

the subsidiaries (except year-end forecasts for Lansen), were then included in the

Board pack which was reviewed by Mr Lee (as he was responsible for reviewing all

documents put to the Board), and sent to the Board shortly in advance of the

meeting.

4.19. 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 Lee had been involved in the

preparation of the draft interim results, as in his role as CEO, he had reviewed the

draft results and corresponding draft market announcement to confirm the

announcement reflected the results accurately, prior to them being sent to N+1.

4.20. 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,

neither Cathay nor Mr Lee considered revising Cathay’s expectations for the year-

end, or whether the deteriorating performance of Cathay constituted inside

information. The interim results were also not considered by Mr Lee and Cathay

against the market expectations set by analysts at N+1.

4.21. 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. Instead, Lansen provided an oral

update to the Board at the meeting on 26 August 2015, which did not include any

numbers or forecasts.

4.22. Mr Lee stated to the Authority that he understood that Lansen did not provide a

forecast for the August 2015 Board meeting due to resourcing constraints at the

time as a result of the ongoing inspection of the Gingko production business by the

CFDA, and because it would have been difficult for Lansen to produce a meaningful

forecast at that time.

4.23. 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 Lee knew that Cathay did not have such a procedure. Mr Lee has

since stated that he considered that Cathay could not have created its own forecast

for Lansen, as it would not have been considered or approved by the Lansen Board

in accordance with Lansen’s own processes, and Lansen had considered that it

would be inappropriate to create such a forecast.

4.24. In the absence of forecasts from Lansen, Cathay’s Board only considered year-end

forecasts for the remaining subsidiaries and neither Mr Lee nor the Board had

sufficient information carefully to monitor by assessing Cathay’s overall year-end

financial performance. Mr Lee, when reviewing the Board papers, did not take any

steps to ensure that Cathay completed year-end forecasts for the whole of its

business, or use his position at Lansen to ensure that forecasts were produced.

Consequently, Cathay was unable to predict properly its year-end results at the

August 2015 Board meeting, and so it only assessed forecasts for approximately

20% to 30% of its business.

4.25. 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. Until discussions were

held with N+1, Mr Lee did not turn his mind to whether the performance of Cathay

might constitute inside information.

Concerns raised by N+1

4.26. On 25 August 2015, N+1 raised concerns 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 Lee, had considered the impact of Cathay’s interim

results on its full year financial performance and whether Cathay held inside

information.

4.27. On 27 August 2015, N+1 advised Cathay again by speaking to Mr Siu (Cathay’s

Finance Director) 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 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’. Although Mr Lee was not a direct recipient of N+1’s emailed advice,

as the sentence proposed by N+1 was discussed and rejected at the Board meeting

at which Mr Lee was present, Mr Lee was aware that N+1 had given this advice.

4.28. Mr Lee and the Board 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. Mr Lee, and other individuals at Cathay, also considered

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.

4.29. On 28 August 2015, N+1 repeated its advice and further advised Cathay (through

speaking to Mr Siu) that Cathay 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

Cathay to the fact that N+1 would need to downgrade market expectations for

Cathay, through the issuance of a new analyst note. Mr Siu conveyed on behalf of

Cathay that it 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.

4.30. Mr Lee was sent a copy of N+1’s advice. Despite N+1 having expressly advised that

a rule breach might occur, Mr Lee did not reconsider Cathay’s position, as the

sentence proposed by N+1 had already been rejected by the Board. As a result,

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. Cathay released its

interim results announcement shortly after these discussions with N+1, and did not

include any statement that it would not meet market expectations.

4.31. 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

4.32. During conversations with N+1 at the time of finalising Cathay’s interim results, Mr

Siu assured N+1 that it would continue to monitor its performance, so that it could

identify whether 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.

4.33. Between Cathay’s interim results and it consolidating 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. Mr Lee did not directly consider these matters

because he did not receive the monthly figures by way of any implemented

procedure and would have to have had these escalated to him at Cathay’s monthly

meetings with its subsidiaries.

4.34. During the same period, N+1 attempted to obtain from individuals at Cathay (not

including Mr Lee) year-end forecasts on multiple occasions, but was not provided

with them. Those individuals failed to inform N+1 that the year-end forecasts did

not, at this point, exist. Until year-end forecasts were produced in early December

2015 (see below), Mr Lee was aware that no other forecasts existed.

The December Announcement

Earlier advice received by Cathay

4.35. On 13 November 2015, N+1 made a further attempt to receive 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 individuals at Cathay (not including Mr

Lee). 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).

4.36. 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 who would be on the call with N+1. Therefore,

at the time of the call with N+1 on 27 November 2015, Cathay and Mr Lee were

aware of a significant cost to Lansen and which Mr Lee subsequently accepted would

need to be announced to the market once the settlement process had been finalised

with the CFDA.

4.37. During the call with N+1 on 27 November 2015, the individuals at Cathay (but

without Mr Lee) described in general how each subsidiary, and therefore Cathay,

was performing. On behalf of Cathay they stated that as trends that had occurred

during the first six months of the year had continued during the second half of the

year, they considered that Cathay’s overall performance was 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,

individuals at Cathay 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).

4.38. On 28 November 2015, N+1 followed this call up with written advice reflecting the

advice provided on the call. On both occasions, N+1 requested information from

Cathay showing its financial performance. Mr Lee, who was not on the call, was

sent a copy of N+1’s written advice shortly after receipt by another individual at

Cathay.

4.39. 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, and

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.

4.40. 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 considered

that the role of N+1 was to assist Cathay in how it delayed disclosure. Specifically,

he wished the trading update to coincide 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.

4.41. On 2 December 2015, Cathay sought legal advice (which it has disclosed to the

Authority under a waiver of legal advice privilege) on whether it could delay an

announcement
on
Cathay’s
financial
performance
to
coincide
with
the

announcement of the penalty on Lansen. On 3 December 2015 the legal advice was

received 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.

4.42. Following this, Mr Siu contacted N+1 on 4 December 2015, and confirmed that it

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

4.43. 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 2015, 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

forecast. 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.

4.44. Individuals at Cathay consolidated these results and forecasts by 6 December 2015

and, following review by Mr Lee, sent 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

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.

4.45. Mr Lee, as Cathay’s CEO and the person who had final sign-off of Board papers,

was the person responsible for including such analysis and/or discussion points in

the Board pack and he was responsible for making the Board aware of the potential

impact on Cathay’s financial performance, in particular given the advice he had

received from N+1 and Cathay’s legal advisers about Cathay’s disclosure

obligations and his obligations as Cathay’s CEO (as set out in paragraph 4.6).

Despite the Board pack confirming the position put to Mr Lee by N+1, Mr Lee did

not take any steps to ensure that Cathay made an announcement to the market as

soon as possible.

4.46. 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 payment by instalments

agreement was subsequently confirmed by the CFDA in a notice to Ningbo Liwah

dated 11 December 2015. The penalty was not included in the forecast figures

provided to the Board discussed for the meeting on 10 December 2015, and Mr Lee

was aware that Cathay’s financial performance would be further adversely impacted

by the penalty. Despite Mr Lee’s personal knowledge of the penalty, and the fact

that Mr Lee acknowledged that the penalty was a significant event which would

need to be announced to the market, Mr Lee still did not ensure that Cathay issued

a trading update.

4.47. On 10 December 2015, the Board, including Mr Lee, 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

4.42; nor was there any document in the Board pack relating to Mr Lee’s call with

N+1 on 2 December 2015. 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. 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.

4.48. 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

4.49. On 11 December 2015, Cathay 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. Individuals at Cathay (not including Mr Lee) also held a call with N+1

to discuss the content of any update. Cathay stated during this call that the penalty

to be imposed on Ningbo Liwah might be announced by Lansen in the following

week, and that it hoped Cathay’s trading update could go out at the same time so

that negative news did not hit the market twice. Cathay also noted that it did not

want to trigger an announcement for Lansen. Cathay made no other statement

about when it might issue the December Announcement, and did not impose on

N+1 any deadline for a response on the draft trading update.

4.50. Between 11 and 17 December 2015, individuals at Cathay (not including Mr Lee)

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 individuals at Cathay with detailed comments on the drafting of the

December Announcement, which it did on 17 December 2015. During this period,

Mr Lee took no steps to ensure that Cathay made progress with the publication of

the December Announcement, and Mr Lee did not personally contact N+1.

4.51. However, on 18 December 2015, it was confirmed by Mr Lee to Cathay that Lansen

would shortly be announcing the CFDA penalty to the market. An individual at

Cathay 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.

4.52. 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

4.53. 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, the Authority wrote to the directors of Cathay requesting

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).

4.54. In a letter dated 29 February 2016, Cathay responded to this request 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.

4.55. In a letter dated 2 March 2016, 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’.

4.56. In response, in a letter dated 15 April 2016 Cathay stated ‘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.

4.57. Throughout its correspondence with the Authority, when commentating on the

forecasts, 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.

4.58. Mr Lee reviewed and approved the communications prior to submission to the

Authority although he did not draft them.

Cathay’s 2015 interim forecasts

4.59. Despite the forecast figures provided to the Authority taking into account forecasts

from Lansen, as noted in paragraph 4.21 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 Cathay responded to the Authority with contemporaneous information from its

actual projection exercise, it should have provided the forecast which was put to

the Board on 26 August 2015, including blank forecasts for Lansen.

4.60. 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.

4.61. 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.

4.62. 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.

4.63. Mr Lee was 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, yet Mr Lee still approved

the communications and that these be sent to the Authority. Mr Lee was aware of

these matters because he had reviewed and approved the Board papers from which

the majority of the figures were extracted, and so was aware that Cathay had not

created year-end forecasts for the whole of its business in August 2015. As Vice-

Chairman of Lansen, Mr Lee also knew that in August 2015 Lansen had not

produced a meaningful forecast.

Cathay’s 2015 year-end forecasts

4.64. Despite the forecast figures provided to the Authority taking into account

substantial profit from new product sales at Lansen, as noted at paragraph 4.60

Lansen’s own forecasts sent to Cathay on 4 December 2015 did not actually include

any, or any material, profits from new product sales.

4.65. 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 provided to the

Authority 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.

4.66. 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.

4.67. Mr Lee, in his review of the letters prior to submission to the Authority, was aware

that the original forecast in December 2015 did not include any, or any material,

profits from new products, yet he still approved the communications and that these

be sent to the Authority. Mr Lee was aware at the time he gave this approval that

the forecast in December 2015 did not include any, or any material, profits from

new product sales as, between 4 and 6 December 2015, he had personally enquired

with individuals at Lansen as to the basis of Lansen’s forecasts.

General statements made by Cathay

4.68. As noted at paragraph 4.54 above, Cathay stated to the Authority that it prepared

additional year-end projections if Cathay 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 4.22 to 4.25, there was

no monitoring of interim projections by Cathay due to the absence of information

from Lansen. Mr Lee was aware that these statements were incorrect, as he knew

that Cathay only created forecasts twice a year, which he approved for inclusion in

the Board pack. Even though Mr Lee had this knowledge, he still approved the

communications to the Authority.

5.
FAILINGS

5.1.
The facts and matters referred to above resulted in Mr Lee being knowingly

concerned in Cathay’s breaches of the following Listing Principles and DTRs of the

Authority in force at the time of the breach: Listing Principle 1, DTR 2.2.1R and

Premium Listing Principle 6 and Listing Principle 2. These breaches are set out below

and the provisions referred to are set out at Annex A to this Notice.

The 2015 Relevant Period

Cathay’s obligations

5.2.
Listing Principle 1 requires a listed company to take reasonable steps to establish

and maintain adequate procedures, systems and controls to enable it to comply

with its obligations.

5.3.
Cathay’s obligations during the 2015 Relevant Period included compliance with the

DTRs. The guidance at DTR 2.2.8G provides that the directors of the issuer should

carefully and continuously monitor whether changes in circumstances of the issuer

are such that an announcement obligation has arisen. The Authority had also issued

a technical note in December 2012 (ref: UKLA / TN / 521.1) on assessing and

handling inside information. As noted at paragraph 4.41, this was the technical note

Cathay’s legal advisers provided to Cathay.

Cathay’s breaches

5.4.
During the 2015 Relevant Period, the shortcomings in Cathay’s procedures,

systems and controls meant that Cathay was unable to comply with its obligations

set out in paragraph 5.3 because it:

(a)
failed to put in place adequate processes and consistent procedures for

compliance with its obligations under the DTRs, in relation to how it would

forecast and monitor how it was performing against market expectations;

(b)
failed to have in place any procedures, systems or controls to calculate its

expected financial performance where it did not obtain year-end forecasts

from its main subsidiary, Lansen, so that it could not assess and carefully

and continuously monitor whether its year-end expectations for financial

performance matched, or deviated from, market expectations; and

(c)
due to (a) and (b) Cathay and its Board (including Mr Lee) did not assess

whether the financial performance of Cathay and its comparison to market

expectations amounted to inside information under section 118C of the Act

and whether this gave rise to an obligation to make an announcement.

5.5.
Cathay’s senior management, including Mr Lee as its CEO, failed adequately to

mitigate the risk, which they appreciated, that their actions or inaction could result

in a failure to take reasonable steps to establish and maintain adequate procedures,

systems and controls. Cathay and Mr Lee thereby acted recklessly.

5.6.
The Authority expects that a premium listed company would have in place

procedures, systems and controls which would help it identify and disclose inside

information, such that it could inform the market of any changes arising from that

inside information in a timely manner. As provided for by the Authority’s listing

regime and the technical note referred to in paragraph 5.3, in order to identify

information which may be inside information requiring disclosure to the market:

(a)
the Authority expects a premium listed company regularly to monitor

changes in its financial performance and its expectations of year-end

performance; and

(b)
the Authority expects a premium listed company to be aware of market

expectations regarding its financial performance and to check regularly

whether its own expectations of financial performance are in line with

market expectations.

5.7.
The only procedures that Cathay had in place during the 2015 Relevant Period were

inadequate and did not comply with Cathay’s obligations because:

(a)
during the 2015 Relevant Period, Cathay was reliant on Lansen providing

accurate and complete financial information to it so that it could assess its

overall financial performance given that Lansen amounted to 70% to 80%

of its business. However, Cathay failed to put in place a forecasting process

which would enable it properly to consider its financial performance in the

event that Lansen did not provide the relevant information;

(b)
when Lansen failed to provide a forecast to Cathay in August 2015, Cathay,

in the absence of any documented procedure for this issue, then did not take

adequate steps to gather the information required in order to ensure that it

could comply with its own regulatory obligations by carefully and

continuously monitoring whether there had been changes in Cathay’s

circumstances. Instead, Cathay simply chose not to complete its forecasts;

(c)
the Authority does not agree with Cathay’s assertion that because Lansen

was separately listed and had its own forecasting procedures Cathay could

not have put in place a contingency plan to forecast Lansen’s financial

performance. The Authority considers that there were a number of options

available to Cathay; and

(d)
the absence of a forecast from Lansen meant that it was not until 6

December 2015 that Cathay had a completed year-end forecast for Cathay

for the year ending 31 December 2015.

5.8.
The Authority considers that this failed to meet the required standard for a premium

listed company to monitor its own financial performance and relevant market

expectations.

5.9.
Further, Cathay also did not compare its actual financial performance to market

expectations for the year ending 31 December 2015.

Mr Lee’s knowing concern in Cathay’s breaches

5.10. 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.

5.11. Throughout the 2015 Relevant Period Mr Lee was a director of Cathay, its CEO and

ultimately responsible for ensuring effective procedures, systems and controls

existed at Cathay.

5.12. Despite being presented with clear evidence in his review of the Board papers for

the August Board meeting that procedures that were in place were ineffective, for

example because Cathay was unable to generate a forecast for the entirety of its

business, Mr Lee recklessly failed to take any steps to ensure that:

(a)
Cathay from that time put in place procedures, systems and controls to

comply with its obligations; and

(b)
the absence of forecasting information for Lansen was either addressed (by

obtaining a forecast from Lansen), or mitigated (by ensuring that Cathay

came to its own view as to its financial performance).

5.13. Further, Mr Lee recklessly failed to ensure that Cathay and its Board considered its

financial performance against market expectations. In Mr Lee’s review of the

financial information presented to the Board in August 2015, he did not consider

whether the performance of Cathay amounted to inside information when it

significantly deviated from internal expectations.

5.14. In fact, Cathay’s failures in its procedures, systems and controls were so serious

that in August 2015 it took Cathay’s advisers to identify to Cathay and Mr Lee that

Cathay might miss market expectations. While N+1’s own forecasts were not

comparable to Cathay’s own understanding of its financial performance, if Mr Lee

had taken the steps set out in paragraph 5.12 Cathay should, when it discussed

the advice with N+1, have been able to form its own view as to whether it would

have missed expectations. However, due to Mr Lee not taking those steps, Cathay

was unable to take that approach.

5.15. Despite being presented with this clear advice from Cathay’s advisers about the

need to provide information to the market, Mr Lee still did not reconsider Cathay’s

position, or ensure that the Board was alerted to the fact that it might be in breach

of the DTRs. As a result of Mr Lee’s decision, Cathay resisted attempts to persuade

it to clarify its position to the market, and did not use the advice either to assist

Cathay in forecasting what its year-end position would be, or to change its

procedures to enable Cathay and the Board to continuously and carefully monitor

whether changes in Cathay’s circumstances were such that inside information was

held which had to be disclosed. The Authority considers that Cathay and Mr Lee

relied on the fact that N+1 would downgrade market expectations on the same day

as the interim results announcement as a reason not to make its own

announcement on the issue.

5.16. Mr Lee should, after August 2015, have ensured that, following N+1’s advice,

Cathay regularly considered, by the implementation of a consistent procedure,

whether it held inside information such that a clarification to the market should be

made. However, Mr Lee did not act on his responsibilities to put such a procedure

in place. Mr Lee should have realised this was necessary because he was aware

following the interim results, through his monthly meetings with Cathay’s

subsidiaries, and through his role as Vice Chairman of Lansen, that Cathay’s

financial performance was further deteriorating.

5.17. Therefore, Mr Lee was knowingly concerned in Cathay not having adequate

procedures, systems and controls in the 2015 Relevant Period to enable it carefully

and continuously to monitor changes in its circumstances so that it could (as a

premium listed company) identify whether or not it held inside information. If there

had been adequate procedures, systems and controls, these should have ensured

that Cathay then acted in accordance with its regulatory obligations to provide the

market as soon as possible with inside information of a material change in its

expected financial performance.

DTR 2.2.1R and Premium Listing Principle 6

Cathay’s obligations

5.18. In the 2015 Relevant Period, DTR 2.2.1R stated:

“An issuer must notify a [Regulatory Information Service] as soon as possible

of any inside information which directly concerns the issuer unless DTR 2.5.1R

applies”.

5.19. DTR 2.5.1R stated:

“An issuer may, under its own responsibility, delay the public disclosure of

inside information, such as not to prejudice its legitimate interests provided

that:

(1) such omission would not be likely to mislead the public;

(2) any person receiving the information owes the issuer a duty of

confidentiality, regardless of whether such duty is based on law, regulations,

articles of association or contract; and

(3) the issuer is able to ensure the confidentiality of that information”.

“A listed company must communicate information to holders and potential

holders of its listed equity shares in such a way as to avoid the creation of a

false market in those listed equity shares”.

Cathay’s breaches

5.21. Cathay breached DTR 2.2.1R and Premium Listing Principle 6 by failing to inform

the market as soon as possible of its deteriorating financial performance earlier

than 29 December 2015 and in circumstances where it had no grounds for delaying

disclosure. Cathay had received and consolidated all of its year-end forecasts by 6

December 2015, and that information was sufficiently clear and precise such that

it should have at least issued a holding statement putting the market on notice of

a potential material change to its expected financial performance on or soon after

6 December 2015. It had also been advised by its brokers and legal advisers that

an announcement should be made. Cathay therefore committed these breaches

recklessly.

5.22. The information collated on 6 December 2015 met the statutory test set out in

section 118C of the Act for inside information, set out in the Annex to this Notice.

Each of the relevant criteria is set out below:

(a)
the information must be precise. The material consolidated on 6 December

2015 included Cathay’s internal projection of a year-end loss after tax of

USD 9,866,000 compared to N+1’s forecast for year-end of a loss after tax

of USD 6,300,000 (around 56% below market expectations). This

demonstrated that Cathay’s financial performance would fall markedly below

market expectations. This information was specific enough to allow for the

conclusion that it would have an impact on Cathay’s share price;

(b)
the 6 December 2015 consolidated group forecast financial information

showed a material deviation from market expectations. The Authority

concludes that because Cathay held this forecast on 6 December 2015, this

was information which satisfied the test in section 118C of the Act for inside

information as it indicated circumstances that existed, or might reasonably

be expected to come into existence, of Cathay’s year-end financial

performance being materially lower than the market expectations which had

been set by N+1 analyst’s note on 28 August 2015. The forecast financial

information consolidated on 6 December 2015 also corroborated the position

set out by N+1 in its calls on 27 November 2015 and 2 December 2015, and

in its email of 28 November 2015. The Authority accepts Cathay’s assertion

that at the 10 December 2015 Board meeting a discussion occurred about

the prospects of new product sales. Although Cathay has stated (as noted

in paragraph 4.48) that Lansen informed it that Lansen was confident by the

10 December 2015 Board meeting new sales could occur, this would have

been so uncertain that Cathay could not appropriately have decided that it

displaced the circumstances that existed or might reasonably be expected

to come into existence such that Cathay held information subject to section

118C of the Act;

(c)
the information was not generally available. The 6 December 2015 material

was not generally available as only Mr Lee and other senior management

received the information and were in the position of being able to understand

its implications for the year-end;

(d)
the information related, directly or indirectly, to one or more issuers of the

qualifying investments. The information related directly to Cathay, which is

an issuer of shares listed in the UK; and

(e)
if generally available, a 56% deviation from market expectations (that being

a material loss after tax), would be likely to have had a significant effect on

Cathay’s share price, and a reasonable investor would be likely to use it as

part of the basis for their investment decisions. This is supported by the

18.2% drop in Cathay’s share price on the day of the December

Announcement.

Mr Lee’s knowing concern in Cathay’s breaches

5.23. The Authority considers that Cathay’s decision, taken by Mr Lee, not to make a

trading update on or shortly after 6 December 2015 was influenced by the fact that

Mr Lee was aware that a substantial penalty was due to be announced by Lansen,

which would have required Cathay to make a further announcement. Mr Lee was

more concerned with ensuring that Cathay’s own announcement did not trigger one

for Lansen, and the prospect of multiple bad news announcements, than he was

with complying with Cathay’s own obligations, as set out at paragraph 5.3. This

caused Mr Lee to disregard professional advice when he should have accepted it as

correctly reflecting Cathay’s obligations. Following this, as set out in paragraph

4.46, despite Mr Lee then knowing prior to the December Board meeting that the

penalty had been confirmed and his acknowledgement that this would have a

significant impact on the business, he recklessly failed to take steps to ensure

Cathay made an announcement to the market.

5.24. The Authority also does not consider that there existed any of the grounds under

DTR 2.5.1R for Cathay to have delayed disclosure. Specifically, this is because the

Authority considers that DTR 2.5.1R could not be satisfied because the omission,

by Cathay not informing the market of its deteriorating financial performance, was

likely to mislead the public.

5.25. The Authority therefore considers that the December Announcement was delayed

by Mr Lee without proper justification in order to allow Cathay to announce the

financial penalty on Ningbo Liwah at the same time, despite Mr Lee repeatedly

being advised by N+1 that Cathay should not do this. Mr Lee should have ensured

that Cathay made an announcement to the market on, or shortly after, 6 December

2015. Mr Lee clearly had detailed knowledge of the inside information by 6

December 2015 due to the contents of the draft Board pack which showed a

forecast loss after tax of USD 9,866,000, which confirmed N+1’s view that Cathay

was performing significantly below market expectations. Mr Lee’s decision to delay

was reckless, and meant that Cathay did not take adequate steps to make an

announcement as soon as possible after forecasting this material loss. Mr Lee was

therefore knowingly concerned in Cathay’s breach of DTR 2.2.1R.

5.26. As a result of Cathay’s failure to disclose inside information to the market, it created

a false market in its listed equity shares, as investors were not informed that Cathay

was performing markedly below market expectations. This false market was in

existence between 6 December 2015 and 29 December 2015. Mr Lee was therefore

knowingly concerned in Cathay’s breach of Premium Listing Principle 6.

The 2016 Relevant Period

Cathay’s obligations

5.27. 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

5.28. 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.

5.29. 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 be better than it was and

chosen to conduct no further investigations.

5.30. 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.

5.31. 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.

5.32. 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.

5.33. 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 Lee’s knowing concern in Cathay’s breaches

5.34. 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 Lee 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 Lee knew when he was reviewing the relevant communications,

including by virtue of being a Board member, that the information provided was

not a contemporaneous record of the financial information available to Cathay

during the 2015 Relevant Period. Although Mr Lee had this knowledge, he approved

the communications anyway.

5.35. The Authority has had regard to, and accepts, Mr Lee’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

Lee gave approval to the provision of 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.

5.36. The Authority therefore considers that Mr Lee 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 Authority considers that the breaches within the 2015 Relevant Period and

2016 Relevant Period in which Mr Lee was knowingly concerned relate to two

serious but separate issues, and so hereby imposes separate penalties for each

period.

6.3.
The total financial penalty which the Authority hereby imposes on Mr Lee is

£214,300. 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.

2015 Relevant Period penalty

Step 1 – Disgorgement

6.4.
Pursuant to DEPP 6.5B.1G, at Step 1, the Authority seeks to deprive an individual

of the financial benefit derived directly from the breach. Mr Lee did not derive any

financial benefit from being knowingly concerned in the breach and so there is no

amount subject to disgorgement.

Step 2 – Seriousness of the breach

6.5.
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, or was a one-off event, 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 12 months preceding the end of the

breach. Mr Lee’s relevant income for the year ending 31 December 2015 was USD

633,000, comprising fees/salary of USD 544,000 and a bonus of USD 89,000. This

equated to £429,5602.

6.6.
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.

Level of seriousness

6.7.
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.

2 Calculated using the GBP/USD exchange rate of 1.4736 as at 31 December 2015.

Impact of the breach

6.8.
DEPP 6.5B.2G(8) sets out factors relating to the impact of a breach. Of these, the

Authority considers that a factor relevant to Mr Lee’s knowing concern in the breach

was the loss or risk of loss, as a whole, caused to consumers, investors or other

market users in general who were making investment decisions without the benefit

of current and accurate information. The Authority, however, notes that the vast

majority of the shares were held by the directors of Cathay, including Mr Lee.

6.9.
There was an effect on the orderliness of, or confidence in, markets as a result of

the breaches. Cathay’s failures created a false market in its listed equity shares.

Investors would have placed reliance on the market expectations published by N+1

in its analyst note dated 28 August 2015, which were later shown to be unattainable

but the market was not informed.

Nature of the breach

6.10. 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 Lee’s knowing

concern in Cathay’s breach:

(a)
the frequency of the breach. Mr Lee directly received advice or was informed

of advice from N+1 and Cathay’s legal advisers about Cathay’s disclosure

obligations on multiple occasions during the 2015 Relevant Period;

(b)
whether the individual held a senior position. Mr Lee held a senior position

within Cathay as its CEO; and

(c)
the extent of the responsibility of the individual for the business areas

affected by the breach. The breach reveals serious and systemic weaknesses

in Cathay’s procedures and/or in the management systems or internal

controls relating to Cathay’s business for which Mr Lee was responsible in

his role as Cathay’s CEO to implement and/or maintain.

6.11. DEPP 6.5B.2G(12) sets out the factors which are likely to be considered ‘level 4

factors’ or ‘level 5 factors’. Of these, the Authority considers that a factor relevant

to Mr Lee’s knowing concern in Cathay’s breach was that he acted recklessly.

6.12. 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 that

a factor relevant to Mr Lee’s knowing concern in the breach is that no profits were

made or losses avoided by either Cathay or Mr Lee as a result of the breach, either

directly or indirectly.

6.13. The Authority considers the seriousness of Mr Lee’s knowing concern in the breach

to be level 4. The calculation is therefore 30% of £429,560, which is £128,868.

Step 3 – mitigating and aggravating factors

6.14. 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.

6.15. The Authority does not consider there to be any factors which either aggravated or

mitigated Mr Lee’s knowing concern in the breach and there should be no

adjustment to the Step 2 figure.

6.16. The Step 3 figure is therefore £128,868.

Step 4 – adjustment for deterrence

6.17. 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.

6.18. The Authority considers that no adjustment for deterrence is applicable. The Step

4 figure is therefore £128,868.

Step 5 – settlement discount

6.19. No settlement discount is applicable. The Step 5 figure is therefore £128,800

(rounded down to the nearest £100).

2016 Relevant Period penalty

Step 1 – Disgorgement

6.20. Pursuant to DEPP 6.5B.1G, at Step 1 the Authority determined that Mr Lee did not

derive any financial benefit directly from the breach. The Step 1 figure is therefore

£0.

Step 2 – Seriousness of the breach

6.21. 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.

6.22. Mr Lee’s remuneration for the year ending 31 December 2016 was USD 555,000,

which equated to £426,2023. He did not receive a bonus. His relevant income

should comprise 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 Lee’s relevant income is therefore £427,898.

6.23. 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.

Level of seriousness

6.24. 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

6.25. 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

3 Calculated using the GBP/USD exchange rate of 1.3022 as at 16 August 2016.

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.

6.26. 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

Lee, who reviewed the information before submission to the Authority and therefore

was in a position to amend it, 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

6.27. 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 Lee’s knowing

concern in the breach:

(a)
the nature of the rules 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 on two

occasions during the 2016 Relevant Period; and

(c)
whether the individual held a senior position. Mr Lee held a senior position

within Cathay as its CEO.

6.28. 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 Lee 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.

6.29. 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 Lee as a

result of the breach, either directly or indirectly; and

(b)
there was no loss to consumers, investors or other market users.

6.30. The Authority considers the seriousness of Mr Lee’s knowing concern in the breach

to be level 3. The calculation is therefore 20% of £427,898, which is £85,580.

6.31. The Step 2 figure is therefore £85,580.

Step 3 – mitigating and aggravating factors

6.32. 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.

6.33. The Authority has taken into account Cathay’s (including Mr Lee’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.

6.34. The Authority does not consider there to be any factors which aggravated Mr Lee’s

knowing concern in the breach and there should be no adjustment to the Step 2

figure.

6.35. The Step 3 figure is therefore £85,580.

Step 4 – adjustment for deterrence

6.36. 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.

6.37. The Authority considers that the Step 3 figure of £85,580 represents a sufficient

deterrent to Mr Lee, and so has not increased the penalty at Step 4.

6.38. The Step 4 figure is therefore £85,580.

Step 5 – settlement discount

6.39. No settlement discount is applicable. The Step 5 figure is therefore £85,500

(rounded down to the nearest £100).

7.
REPRESENTATIONS

7.1.
Annex B contains a brief summary of the key representations made by Mr Lee 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 Lee, whether or not set out in Annex B.

8.
PROCEDURAL MATTERS

8.1. This Notice is given to Mr Lee under and in accordance with section 390 of the Act.

The following statutory rights 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.

Manner and time for payment

8.3. The financial penalty must be paid in full by Mr Lee to the Authority no later than

12 July 2019.

If the financial penalty is not paid

8.4. If all or any of the financial penalty is outstanding on 13 July 2019, the Authority

may recover the outstanding amount as a debt owed by Mr Lee and due to the

Authority.

8.5. Sections 391(4), 391(6) and 391(7) of the Act apply to the publication of

information about the matter to which this notice relates. Under those provisions,

the Authority must publish such information about the matter to which this notice

relates as the Authority considers appropriate. The information may be published

in such manner as the Authority considers appropriate. However, the Authority

may not publish information if such publication would, in the opinion of the

Authority, be unfair to you or prejudicial to the interests of consumers or

detrimental to the stability of the UK financial system.

Authority contacts

8.6.
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.

Financial Conduct Authority, Enforcement and Market Oversight Division

ANNEX A

RELEVANT STATUTORY AND REGULATORY PROVISIONS

The statutory and regulatory provisions set out below are the versions that were in force

in the periods between 21 August 2015 and 29 December 2015 (i.e. the 2015 Relevant

Period) and 29 February 2016 and 16 August 2016 (i.e. the 2016 Relevant Period).

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 118C of the Act:

“ (1)
This section defines “inside information” for the purposes of this Part.

(2)
In relation to qualifying investments, or related investments, which are not

commodity derivatives, inside information is information of a precise nature which—

(a) is not generally available,

(b) relates, directly or indirectly, to one or more issuers of the qualifying

investments or to one or more of the qualifying investments, and

(c) would, if generally available, be likely to have a significant effect on the price

of the qualifying investments or on the price of related investments.

(5) Information is precise if it—

(a) indicates circumstances that exist or may reasonably be expected to come

into existence or an event that has occurred or may reasonably be expected to

occur, and

(b) is specific enough to enable a conclusion to be drawn as to the possible

effect of those circumstances or that event on the price of qualifying

investments or related investments.

(6) Information would be likely to have a significant effect on price if and only if it

is information of a kind which a reasonable investor would be likely to use as

part of the basis of his investment decisions.

(8) Information which can be obtained by research or analysis conducted by, or on

behalf of, users of a market is to be regarded, for the purposes of this Part, as

being generally available to them.”

1.3.
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.”

1.4.
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.
Unless otherwise stated, the regulatory provisions set out below were in force at

all material times.

Disclosure Rules and Transparency Rules

2.2.
DTR 2.2.1R: “An issuer must notify a [Regulatory Information Service] as soon as

possible of any inside information which directly concerns the issuer unless DTR

2.5.1R applies”.

2.3.
DTR 2.5.1R: “An issuer may, under its own responsibility, delay the public

disclosure of inside information, such as not to prejudice its legitimate interests

provided that:

(1) such omission would not be likely to mislead the public;

(2) any person receiving the information owes the issuer a duty of

confidentiality, regardless of whether such duty is based on law, regulations,

articles of association or contract; and

(3) the issuer is able to ensure the confidentiality of that information”.

2.4.
DTR 2.2.8G: “The directors of the issuer should carefully and continuously monitor

whether changes in the circumstances of the issuer are such that an announcement

obligation has arisen under this chapter”.

2.5.
Listing Principle 1: “A listed company must take reasonable steps to establish

and maintain adequate procedures, systems and controls to enable it to comply

with its obligations”.

2.6.
Listing Principle 2: “A listed company must deal with the Authority in an open

and co-operative manner”.

2.7.
Premium Listing Principle 6: “A listed company must communicate information

to holders and potential holders of its listed equity shares in such a way as to avoid

the creation of a false market in those listed equity shares”.

ANNEX B

REPRESENTATIONS

1. Mr Lee’s representations (in italics), and the Authority’s conclusions in respect of

them, are set out below.

Cathay did not breach Listing Principle 1 by failing to compare forecasts against

market expectations

2. Cathay had a long-standing and well-established process for preparing full-year

projections twice annually. This was reasonable for a company of its size. Its

advisers were fully aware of this process and did not advise that Cathay needed to

prepare forecasts more frequently; the Authority does not allege that year-end

forecasts should have been prepared more frequently. Thus, the first opportunity

Cathay had to compare its performance against the August 20015 analyst’s note

was in November/December 2015, when it did so.

3. Each month between August and December Cathay received data from each of its

subsidiaries regarding actual monthly financial performance (without projections

for future months). It monitored these and compared them to its own budgets and

the unquantified statements in its interim results. Operating a system of

performing twice-annual forecasts, as it did, it could not have done more in the

circumstances.

4. Listing Principle 1 requires a listed company to take reasonable steps to establish

and maintain adequate procedures, systems and controls to comply with its

obligations. It is not prescriptive about what the procedures, systems and controls

should be, but (regardless of the circumstances and size of the company) they must

be sufficient to enable the listed company to comply with its obligations, including

the obligation under DTR 2.1.1R to notify a Regulatory Information Service as soon

as possible of inside information which concerns it. As noted in the guidance in

DTR 2.2.8G, the Authority considers that the directors of a listed company should

carefully and continuously monitor whether changes in its circumstances are such

that an announcement obligation has arisen. This required Cathay, as a premium

listed company, to monitor changes in its financial performance and its expectations

of year-end performance, to be aware of market expectations regarding its financial

performance and to check regularly whether its own expectations of financial

performance were in line with market expectations.

5. Even if its twice-yearly projection process was long-standing and well-established,

it was inadequate to enable Cathay to comply with its obligations under DTR 2.2.1R

because Cathay was unable to monitor whether its own expectations for its financial

performance were in line with market expectations. Comparing data received

monthly from subsidiaries against internal budgets and unquantified statements in

its interim results did not achieve this as neither was comparable to market

expectations as set by N+1’s analyst’s notes.

6. The obligation was on Cathay to comply with Listing Principle 1 and it would be no

excuse to show that it was never advised that its procedures were deficient.

However, it should in fact have been clear to Cathay from the advice it received

from N+1 about its disclosure obligations and the risk of breach of the DTRs in

August 2015, and then again in November and December of that year, that it

needed to amend its procedures, systems and controls to ensure compliance with

Listing Principle 1.

Cathay did not breach Listing Principle 1 by failing to produce a contingency plan

for circumstances in which Lansen did not produce a forecast

7. Lansen was unable to produce a quantified forecast in July 2015 because of specific

and unusual circumstances. Cathay nevertheless turned its mind to its projected

year-end performance and formed a view, based on qualitative information about

the key trends driving its overall business, including for Lansen. This was a

reasonable response to the circumstances and was adequate to enable Cathay to

produce interim results which complied with the DTRs.

8. It is incorrect to suggest that Cathay required a contingency procedure to deal with

the situation that arose, rather than being ready to deal with the circumstances

when they arose on an ad hoc basis. In forming the view that Lansen’s performance

in the second half of the year would be similar to its performance in the first half,

Cathay took a reasoned view, without overreaching by creating unsubstantiated

proxy data, which would risk misleading. This is not a matter of systems and

controls but a criticism of action taken (or not taken) in response to an event.

9. This failure is a matter of systems and controls. As noted above, Cathay was

obliged under Listing Principle 1 to take reasonable steps to establish and maintain

adequate procedures, systems and controls to comply with its obligations. As

Lansen represented 70% to 80% of its business at the time, Cathay was particularly

reliant on Lansen to provide accurate and timely information to it. Yet Cathay failed

to have in place any procedures, systems and controls to ascertain its expected

financial performance when it did not obtain year-end forecasts from Lansen. When

Lansen failed to provide a forecast to Cathay in August 2015, Cathay did not take

adequate steps to gather the information it required and so it did not have a

completed year-end forecast for its own performance for the year ending 31

December 2015 until 6 December of that year. There is no contemporaneous

evidence that Cathay had a procedure or system for producing a forecast, whether

based on qualitative information or otherwise, or of any objective evaluation by

Cathay of such information.

Mr Lee was not knowingly concerned in any breach because he lacked the

relevant involvement

10. Where, as here, the alleged breach of Listing Principle 1 consists of a failure to act,

knowing concern can only be established if the individual had specific responsibility

for the procedures, systems or controls in question. Mr Lee did not. His ultimate

responsibility, as Cathay’s CEO, for ensuring effective procedures, systems and

controls is insufficient.

11. In any event, Mr Lee did not have actual authority independently of the Board to

change Cathay’s procedure, systems or controls. The Authority says Cathay should

have developed a contingency procedure for circumstances in which Lansen did not

provide data for the projection process, and prepared forecasts more frequently

than twice annually, so as to enable it to compare its performance against market

expectations in the period September to November 2015. These matters would

not have been “business as usual” (and concerned forecasting which was already a

Board matter) and so would have required full Board approval.

12. While it is necessary to demonstrate some involvement by Mr Lee in Cathay’s

breach in order to establish knowing concern on his part, it is not necessary to

demonstrate that he had specific responsibility for the procedures, systems and

controls in question. However, Mr Lee accepted in his pre-interview questionnaire

and his interview with the Authority that he was responsible for managing the day-

to-day business activities of Cathay, which included ensuring that effective internal

controls and management information systems were in place. As a hands-on CEO,

the Authority considers there is no reason to believe that Mr Lee would have faced

any, or any material, impediment in implementing the necessary changes

independently of the Board. There is also no evidence that he sought the Board’s

approval for any such changes.

If Mr Lee was knowingly concerned in a breach by Cathay of Listing Principle 1, his

knowing concern was not reckless

13. A finding of recklessness would require Mr Lee to have been specifically aware of a

risk that Cathay’s systems and controls were inadequate, and nevertheless to have

failed to put proper systems and controls in place knowing, or turning a blind eye

to, the risk of harm or breach resulting.

14. Mr Lee was not aware of any risk that Cathay’s systems and controls were

inadequate. Cathay was never advised that they were inadequate, or potentially

so, and nor was there any suggestion from which this could have been inferred.

15. N+1’s advice in August concerned the specific and narrow issue of whether the

interim statement should contain the words set out at paragraph 4.27 of this Notice.

It did not concern, reveal or put Mr Lee on notice of anything to do with its systems

and controls. There is nothing else in the communications with N+1 in the 2015

Relevant Period that supports the contention that Mr Lee must have appreciated

that its systems and controls were inadequate.

16. The Authority accepts that a finding of recklessness requires Mr Lee to have been

aware of a risk that Cathay’s procedures, systems and controls were inadequate,

and nevertheless to have failed to mitigate that risk by putting in place proper

systems and controls in place knowing of, or turning a blind eye to, the risk of a

breach resulting. It is not, however, necessary to show that Cathay was advised

of this risk (or that Mr Lee was aware of any such advice).

17. The Authority considers that it must have been clear to Mr Lee, including from the

advice received from N+1 between 25 and 28 August 2015 (summarised at

paragraphs 4.26 to 4.29 of this Notice) that Cathay needed to commence

monitoring of its financial performance to enable it to identify any changes in that

performance, and particularly whether its expectations of performance were in line

with market expectations as set by N+1. That advice was not narrowly focused on

the specific wording of the interim statement. Mr Lee appreciated the risk that his

actions or inaction could result in a failure to take reasonable steps to establish and

maintain adequate procedures, systems and controls. By then failing to ensure that

Cathay carried out the monitoring, or took other appropriate actions, Mr Lee failed

adequately to mitigate that risk and he thereby acted recklessly.

DTR 2.2.1 and Premium Listing Principle 6

Cathay did not have inside information, either at all or alternatively until 18

18. The difference in net profit line was not price-sensitive to Cathay’s shares. A

reasonable investor would not have used the difference between the projected net

profit figures in the projections consolidated by Cathay on 6 December 2015 and

the N+1 research note of August 2015 as a basis for making investment decisions

in relation to Cathay’s shares. The 56% deviation in projected net profits in this

case was material but, given that other significant items – revenue and gross profit

– were broadly unchanged from market expectations, that material deviation was

unlikely to have a significant effect on Cathay’s share price in all the circumstances.

19. No weight should be placed on the 18.2% drop in Cathay’s share price on the day

of the announcement (29 December 2015) because the trading update also

contained information about the CFDA penalty and it is not possible safely to

conclude that that did not explain all, or a significant part, of the price drop.

20. Further, the August 2015 research note did not value Cathay’s shares using

projected net profit; instead, it valued Cathay’s share on the asset values of its

holdings. The relevant question, therefore, is whether the information reflected in

Catha’s projections would have affected the value of Cathay’s holding in Lansen,

as an asset of Cathay. Lansen made its own trading update in March 2016 in

relation to the downturn in its 2015 expected profits, covering the information

included by Cathay in its trading update on 29 December 2015, and stating that

group profit was expected to show a “relatively substantial decline”. Lansen’s share

price did not move materially on that announcement, strongly supporting the view

that the deviation in net profits was not price-sensitive in relation to Lansen’s listed

shares and thus not price-sensitive in relation to Cathay’s shares.

21. If the Authority does not accept the above analysis, in any event the difference in

the net profit line between the 6 December projections and the August research

was not price-sensitive until 18 December 2015 because, until then, Cathay had a

reasonable expectation of Lansen obtaining a large stocking order for Fillderm

before year-end. Cathay took account of the prospect of such a stocking order in

assessing whether it had an obligation to disclose information contained in its 6

December 2015 projections.

22. The strategy of pursuing stocking orders had commenced in October 2015 and had

not been included in the original budget. Cathay had a discussion with Lansen on

or around 7 December to understand why Lansen’s projection did not include

reference to a Fillderm stocking order, and was told that it was still the target to

achieve this by the end of the year, and there were ongoing discussions. Lansen

gave an oral update at the Cathay Board meeting on 10 December. Lansen has told

the Authority that there was a common understanding that Lansen was progressing

towards its target of selling 20,000 Fillderm units and that at the Board meeting on

10 December it informed Cathay that Lansen still aimed to conclude such an order

by 18 December 2015. A stocking order was in fact concluded in March 2016,

generating $8.5m in revenue which, if factored into the 6 December 2015 net loss

for Cathay, would have been considered in line with market expectations. This was

soon after the year end (taking into account major Hong Kong holidays in January

and February 2016), which is strong evidence in support of Cathay’s position that

it had a reasonable expectation of a Fillderm stocking order during 2015.

23. The Authority considers that Cathay had inside information from 6 December 2015.

This is because the 56% difference in Cathay’s projected net loss figures (a

projected loss after tax of over USD 9.8 million against market expectations of a

loss after tax of approximately USD 6.3 million) was information that would, if

generally available, be likely to have a significant effect on the price of Cathay’s

shares, because it was information of a kind which a reasonable investor would be

likely to have used as part of the basis of an investment decision. This is so even

taking into account that other aspects of Cathay’s figures, such as revenue and

gross profit, were likely to be in line with market expectations. The information

thus satisfied the test in s118C (2)(c) of the Act.

24. It is not necessary to examine contemporaneous evidence relating to what

happened when the information was actually released to the market. Nevertheless,

the 18.2% drop in price that did occur at that point is supportive evidence that the

information was likely to have a significant effect on price. The Authority accepts

that it is not possible to demonstrate that the price drop was solely attributable to

the announcement of an expected material loss before tax, markedly below market

expectations, rather than the announcement of the CFDA financial penalty, but nor

is it possible to say that it was solely attributable to the penalty. It is a reasonable

inference that it was attributable in part to the announced marked increase in the

expected loss before tax. This inference is supported by an analysis of the sequence

of Bloomberg announcements on the morning of 29 December 2015: after releasing

Cathay’s trading announcement at 08:45, Bloomberg released two notes referring

only to Cathay’s full year losses, at 08:46 and 08:47 respectively, and a further

note referring to the CFDA penalty, at 08:48. The fall in share price began after

the trading update and continued until 08:49.

25. The Authority does not accept that the fact that the N+1 analyst’s valuation in

August 2015 was made by reference to asset values indicates either that a

reasonable investor would not have regard to profits after tax, or that the analyst

himself regarded profit after tax as unimportant. The N+1 note was released to the

market in the light of weak profits in the first half of the year which indicated that

market expectations for Cathay’s year-end performance would not be met. It

provided revised downgraded forecasts for Cathay’s year-end performance which

focused on projected profit after tax.

26. The fact that Lansen’s share price did not move significantly when it made its own

announcement in March 2016 is not an indication that the information about

Cathay’s projected net profits was not market-sensitive. This was an

announcement about a different company, made to a different market;

furthermore, Cathay’s announcement in December 2015, while not expressly

referring to a fall in profits at Lansen, would have given an indirect indication that

Lansen – which was 70% to 80% of Cathay’s business at the time – was in difficulty.

27. As set out in paragraphs 4.47 and 5.23 of this Notice, the Authority accepts

Cathay’s assertion that a discussion about the prospects of Fillderm stocking orders

occurred at the Board meeting on 10 December 2015. The Authority also accepts

that those orders were potentially of a size that could have rendered an update

unnecessary. However, the Authority considers that there is insufficient evidence

that from either 6 or 10 December 2015 it was considered by Cathay to be

sufficiently certain that Lansen would make sufficient sales by year-end that it

would have been appropriate for Cathay to conclude that it was unnecessary to

issue a profits warning. There is no contemporaneous record of this conclusion

having been reached, or even discussed; for example, in the lengthy telephone

discussion which took place with N+1 the day after the 10 December 2015 Board

meeting. Lansen’s later statement to the Authority, referred to at paragraph 22

above, suggests only an aim, rather than an expectation, that substantial orders

could occur before year-end. Nor is there any contemporaneous evidence that the

prospect of Fillderm stocking orders played any part in Cathay’s substantive

analysis of whether it was necessary to issue an update.

Mr Lee was not knowingly concerned in any breach because he lacked the

relevant knowledge and involvement

28. In order to establish knowing concern on the part of Mr Lee in a contravention by

Cathay of the Authority’s rules, the Authority must establish that he (a) knew the

facts that made the act complained of a contravention, and (b) was involved in the

contravention.

29. If Cathay did possess inside information between 6 and 18 December 2015, Mr

Lee was not aware of this, so cannot have been knowingly concerned in any breach

by Cathay of DTR 2.2.1 and Listing Principle 6. Because of the prospect of Fillderm

sales, the arguments against there being inside information during this period were

reasonable and credible.

30. Further, he had no actual involvement in any delayed disclosure of any inside

information. Mr Lee was not directly responsible for drafting the trading update or

liaising with advisers, but fulfilled his duties in relation to discussion of the

projections and advice by Cathay’s Board, drafting the update and engagement

with N+1 on the detail of the projections and the wording of the update. His

authority as CEO of Cathay did not extend to taking decisions which were not

“business as usual”, which would be escalated to the Board.

31. Mr Lee had seen N+1’s written advice of 27 November 2015 as to Cathay’s

disclosure obligations and the risk of breach, and this advice was robustly repeated

in his telephone conversation with N+1 on 2 December 2015. He also saw Cathay’s

lawyers’ advice of 3 December 2015. He was aware from 6 December 2015 of the

forecast 56% deviation in Cathay’s loss after tax from market expectations as set

in N+1’s analyst note. For the reasons set out above the Authority does not accept

that Mr Lee had, either from 6 or 10 December 2015, a sufficiently certain

expectation of Lansen achieving Fillderm stocking orders before year end in such

volumes as appropriately to displace the need for a market update. There is no

contemporaneous record of this conclusion having been reached by Mr Lee or even

discussed by him. The Authority considers, therefore, that from 6 December 2015

Mr Lee possessed sufficient information to be aware that Cathay held inside

information, and was obliged to make an announcement.

32. The Authority considers the evidence demonstrates that Mr Lee was a “hands-on”

CEO and that he was in charge of Cathay’s day-to-day management. As such, and

being aware of the obligation to disclose inside information as soon as possible, he

was at fault in not ensuring that an announcement was issued promptly. The

Authority does not accept that Mr Lee did not have individual authority to direct

that an announcement should be made and that consent was required from

Cathay’s Board (the Authority notes that this would be contrary to the guidance

contained in the Authority’s technical note with which he was provided on 3

December 2015). However, even if this were the case, Mr Lee could have convened

a Board meeting to approve the issue of an announcement, on 6 December or soon

thereafter (and, indeed, the Board met on 10 December 2015 but did not have a

draft announcement to consider). As Mr Lee was aware, the Board was quorate

with only two directors and therefore he could have authorised the release of an

announcement with the agreement of only one other director. The Authority

therefore considers that Mr Lee was involved in the delay in issuing the trading

update.

If Mr Lee was knowingly concerned in a breach by Cathay of DTR 2.2.1R or Premium

Listing Principle 6, his knowing concern was not reckless

33. Mr Lee had a genuine and reasonable belief in the prospect of a Fillderm stocking

order until 18 December 2015. Even if his assessment of whether Cathay had inside

information before that date was wrong, he had no subjective belief that it had

inside information and therefore no subjective appreciation that it would risk

breaching the STRs if it did not make a disclosure.

34. The advice of Cathay’s appointed advisers was general advice on Cathay’s

regulatory obligations, which did not take account of the prospect of further

Fillderm sales, and was given without having reviewed Cathay’s financial data, at a

time when it is not alleged Cathay held any inside information. Indeed, N+1’s

advice (in a telephone conversation on 2 December 2015) mentioned that if Cathay

had grounds to think that it could still make the full year’s expectations or, say,

10% below, and there were certain things on which it was awaiting confirmation,

there would be no requirement for an announcement. Cathay was indeed waiting

on such confirmation. If Mr Lee had behaved recklessly in relation to a potential

announcement, N+1 would inevitably have identified this and given strong advice,

but it did not.

35. During the period from 6 December 2015 to the release of the trading update,

Cathay and Mr Lee took reasonable steps to consider its forecasts, draft a trading

update in case one was to be necessary and discuss the advice it received.

36. For the reasons set out above, the Authority does not accept that Mr Lee did have

a sufficiently certain belief that a Fillderm stocking order would be made that

Cathay could have appropriately decided that a market update was unnecessary.

It considers that Mr Lee was well aware, including from the advice Cathay had

received from its financial and legal advisers, that if there were a material deviation

from market expectations, it must make an announcement to the market. This

was not general advice given in a vacuum but was on the basis of advice sought

by, and discussions with, Cathay about its likely financial performance for the

second half of the year and its obligations arising from that performance. On 6

December 2015, when Cathay received and consolidated its ten-month results and

year-end forecast, Mr Lee was in possession of all the information he needed to

conclude that Cathay held inside information and was under an obligation to

disclose it. N+1 continued to advise thereafter on the basis that Cathay would

need to make an announcement as soon as possible. Mr Lee acted recklessly in

not taking steps to ensure Cathay made a disclosure to the market on or as soon

as possible after 6 December 2015, knowing of the risk that it was in breach of the

DTRs.

37. The Authority does not consider that Mr Lee was relying on the statement by N+1

referred to in paragraph 34 above in not making an announcement to the market.

This was a brief comment in the context of a very long call, and there is no evidence

of Mr Lee having taken particular note of it at the time, or discussed with Cathay’s

advisers at any point after 10 December 2015 that Cathay might not need to issue

an update because of its expectations in relation to Fillderm; as set out above, the

Authority considers that any consideration of possible Fillderm sales would have

been so uncertain that Mr Lee could not appropriately have decided that it displaced

the circumstances that existed or might reasonably be expected to come into

existence such that Cathay held information subject to section 118C of the Act.

38. The Authority considers that, during the period from 6 December 2015 until the

release of the trading update, Mr Lee did not take steps to ensure Cathay worked

quickly towards disclosure of the inside information. Rather, Cathay acted with

unnecessary and inappropriate delay. In particular:

(a)
After receiving the consolidated forecast figure on 6 December 2015, it

circulated these to the Cathay Board two days later, and the Board did not

meet for another two days thereafter; this was notwithstanding that it had

been in possession of the Technical Note since 3 December 2015; this stated

that the Authority would not be likely to regard the inability to convene a

Board meeting as a justifiable reason for delaying disclosure, and that it

understood that responsibility might be delegated to a small number of

directors.

(b)
A first draft of the trading update was not prepared until 11 December 2015,

the day after Cathay’s Board meeting, five days after receipt of the inside

information, and seven days after Cathay had informed N+1 that it would

draft a trading update.

(c)
The trading update was not circulated to, and signed off by, the Board until

24 December 2015. It was issued on 29 December 2015.

The timing of the trading update was not influenced by the timing of the CFDA

penalty announcement

39. Cathay did not delay disclosure in order to co-ordinate announcements with the

CFDA penalty and was not influenced by such considerations. If there was a delay

in disclosing inside information from 6 December 2015, it was due to other factors.

From 6 to 18 December 2015, Cathay had a genuine and reasonable belief that it

did not hold inside information, because of the expectation of Fillderm orders. From

18 December 2015 onwards, it was working as quickly as possible to prepare and

release an announcement, with the timing impacted by difficulties in obtaining sign-

off from all Board members and advisers over the Christmas period.

40. Although Cathay did strongly suggest it would prefer to issue a single

announcement to coincide with the announcement of the CFDA penalty, this was at

an early stage. Cathay undertook to obtain advice from its lawyers; that advice

stated that the disclosure of inside information could not be delayed to coincide

with an interim report or other announcement, and at no point after this did Cathay

suggest the two announcements could be deliberately coordinated. From that point

onwards, it sought to work to draft a trading update to be issued if required.

41. After 18 December 2015, Cathay was waiting for comments and sign-off on the

draft trading update. From 18 December 2015, as noted in an email from Cathay

sent on that date, Cathay did intend to co-ordinate the trading update with the

penalty announcement, as at that stage there was no reason not to. There were

only four working days between 18 and 24 December, and none between 24 and

29 December, on which date the announcement was made.

42. Mr Lee expressed himself in strong terms when, in the call with N+1 on 2 December

2015, he expressed the view that Cathay could choose when to issue a trading

update and that he wished to co-ordinate it with Lansen’s announcement of the

CFDA penalty, and received clear advice from N+1 that it could not delay an

announcement for that purpose. Having thereafter received clear advice from

Cathay’s
lawyers
that
Cathay
could
not
choreograph
or
co-ordinate

announcements, it is unsurprising that Mr Lee did not expressly repeat his

suggestion that the two announcements could be co-ordinated.

43. However, the Authority does not accept that the delay in disclosing the inside

information from 6 December 2015 until 29 December 2015 was not influenced by

Mr Lee’s wish to co-ordinate Cathay’s announcements with Lansen’s announcement

of the CFDA penalty. For the reasons set out above, the Authority considers that

any possible Fillderm stocking order would have been so uncertain at this time that

Cathay could not appropriately have decided that it displaced the circumstances

that existed or might reasonably be expected to come into existence such that

Cathay held information subject to section 118C of the Act. As explained at

paragraph 38 above, the Authority does not consider that Mr Lee took steps to

ensure that Cathay worked as quickly as possible towards the drafting and release

of an announcement; rather, Cathay delayed unnecessarily and inappropriately

during the period 6 to 29 December 2015.

44. The Authority does not agree that there was, by 18 December 2015, no reason why

the trading update and the penalty announcement should not have been co-

ordinated. Nothing had changed which justified delaying the trading update by

reference to the penalty announcement. In any event, the Authority’s conclusion

is that the trading update should have been made as soon as possible after 6

December 2015.

The letters of 29 February 2016 and 15 April 2016 presented a reasonable, full and

accurate picture of events as they occurred in 2015

45. 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.

46. 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.

47. 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.

48. 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.

49. 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.

50. 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

51. The Authority did not ask Mr Lee in interview about his state of mind when

preparing and approving the letters in 2016. The topic of these 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 with 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 Lee without having asked basic relevant questions at interview

and thereby allowing him the opportunity to put forward evidence on his behalf.

52. The Authority considers that Mr Lee has had ample opportunity to put forward

evidence on his own behalf. He has done so, both before the issue of the Warning

Notice to him on 18 December 2018 and afterwards (in his written and oral

representations summarised here). The Authority does not consider Mr Lee has

suffered any procedural unfairness.

Mr Lee was not knowingly concerned in any breach because he lacked the

relevant knowledge

53. In the context of a potential Listing Principle 2 breach founded on the allegation

that the company has provided an inaccurate or incomplete response to an

Authority request, for there to be knowing concern there must be actual awareness

on the part of the director, at the time of the relevant communication, of the facts

that render it inaccurate, incomplete or misleading.

54. Mr Lee did not analyse the figures in Cathay’s letter of 15 April 2016 to the Authority

in detail and did not have in his mind, at the time he approved the correspondence,

that the projection data shown included data based on the new product budgets

had not been included in the written material put to the Cathay Board in August

and December 2015. Without this subjective awareness at the time of approving

the letter, Mr Lee cannot have liability for knowing concern in the alleged breach of

Listing Principle 2.

55. Furthermore, Mr Lee was involved in steps taken to share drafts of the

correspondence with advisers, demonstrating an intention to be open and to ensure

that the Authority had the information it required.

56. The Authority notes that Mr Lee’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 Lee 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.

57. In relation to the figures in the letter of 15 April 2016, the Authority notes that Mr

Lee has not disputed that he understood that the Authority wanted projection

figures sourced from contemporaneous projection exercises (and that is what the

letter purported to provide). Although he states that he did not have in his mind

when approving the letter that the Lansen projection data had not been included in

the material provided to the Cathay Board in April and December 2015, in

July/August 2015 he was well aware, both as CEO of Cathay and as Vice-Chairman

of Lansen, that Lansen had not produced an interim forecast. In December 2015,

he had personally enquired of Lansen about the basis of the forecasts and their lack

of any substantial revenue from new product sales. The Authority considers it most

unlikely that he would have forgotten these significant matters when reviewing the

letter of 15 April 2016 only a few months later, especially given the importance of

the correspondence with the Authority, and considers that he would have been

aware of these matters when considering the letter. Further, in his interview with

the Authority, Mr Lee stated that, in the letter, Cathay was “trying to reflect the

mindset of how we felt at that point… we should have explained it”. This

explanation is inconsistent with his representations.

Financial penalty

Only level 2 would be appropriate

58. Mr Lee disputes that he has acted recklessly. To the extent that he has been

knowingly concerned in any breach by Cathay, the seriousness of the breach is no

more than level 2.

59. For the reasons set out above, the Authority considers that Mr Lee did act recklessly

in his knowing concern in Cathay’s breaches during the 2015 Relevant Period and

that the seriousness of his knowing concern is level 4. Mr Lee has not provided any

separate representations as to why the seriousness of his knowing concern in

Cathay’s breach of Listing Principle 2 should be no more than level 2, and the

Authority refers to its reasoning for the conclusion that it is level 3, which is set out

at paragraphs 6.24 to 6.29 of this Notice.