Deputy Judge Louis Chan Kong Yiu is still wrong on paras 1 and 2: the SFO is quite clear on this, and investors have been filing interests in shares underlying convertible notes and forward purchases since the SFO came into effect on 1-Apr-2003. Why doesn't he just check the ordinance? See the SFO s322(5)(a).
機構
人物
Xu Shengheng & another v Cheung Kwan
HK Court of First Instance, 05-Mar-2012
Deputy Judge Louis Chan Kong Yiu is wrong in law in para 42. An interest in shares arises under a forward purchase agreement (SFO s322(5)(a)). Security interests in shares are also counted under the SFO, unless the pledgee is exempt (as banks, brokers and insurers are). Secondly, the audited accounts at 30-Sep-2008 show that the convertibles were actually issued on 31-Mar-2008, apparently in breach of the agreement (since the profit guarantee had not yet been tested). Given that the notes were issued, the SDI notices were correct to include the 680m underlying shares as derivative interests under the SFO, so para 36 and 37 of the judgment are wrong too. Para 38 misinterprets the announcement of 14-Sep-2010: the notes were not converted at that point.