The Hong Kong market has in recent years seen a number of listed companies having to go through the painful process of prolonged suspension of trading as a result of failure to publish their financial statements to the public in accordance with the timeframe prescribed in the Listing Rules.  A portion of these suspensions arose as a result of whistleblowing or anonymous complaints pertaining to potential irregularities in the listed companies’ financial statements, misconduct of senior management or other corporate misfeasance.  As a result of such complaints, the affected listed companies may be required to conduct internal investigations to address the issues arising from the complaints and undertake remedial measures before trading of the shares can be resumed.

How one handles whistleblowing or anonymous complaints will potentially have significant implications on the listed companies.  While it is debatable whether a prolonged suspension is a proportionate result of whistleblowing which may or may not be substantiated after an internal investigation, it is clear that potential misconduct or irregularities which affect the interests of public shareholders are often uncovered by whistleblowing.

Looking at things from a broader angle, whistleblowing is also one of the key ways for management to find out about potential wrongdoing or misconduct within an organisation, so that appropriate measures can taken to manage the risks arising before it is too late.

It goes without saying that in order to encourage a whistleblower who intends to make a report of suspected wrongdoing, one may need to give sufficient assurances and protection to a whistleblower (most notably, confidentiality and safeguards against retaliation).

An organisation may have its own whistleblowing policy offering protection to whistleblowers and establishing a process to handle whistleblowing or anonymous complaints.  In addition to such internal policies and procedures, one may also see if a whistleblower is offered any statutory protection, especially when whistleblowing takes place outside a specific organisation.

Compared to other jurisdictions, Hong Kong does not currently have a composite piece of legislation which is designed to provide a comprehensive scheme for whistleblower protection. Instead, the whistleblower protection in Hong Kong is scattered around various ordinances.

It can be foreseen that a reform to introduce a composite piece of legislation for whistleblower protection (whether or not this will happen) will not be an easy task, as any such legislation should balance between protecting whistleblowers from retaliation and blindly offering wide protection such that it invites frivolous and plainly unsubstantiated complaints. In addition to that, the legislation will have to take into account all the other existing protections that are offered to whistleblowers under various legislations.

Please see our article that sets out some examples that are relevant to Hong Kong’s regime on whistleblowing for more details.

MinterEllison has collaborated with the Fresh Fish Traders’ School’s (FFTS) once again by sponsoring the Chinese New Year Card Design Competition. The winning design was chosen as our official Chinese New Year greeting card for our clients. As a token of our appreciation, participating students received vouchers. This initiative is one of the many ways that MinterEllison contributes to the community.

Our Partner Katherine U, associate Thomas Sham, and other members of our Community Investment Committee attended the awards ceremony at FFTS on 22 March 2024 and presented the awards to all the winners.

On 2 November 2023, the Securities and Futures Commission (the “SFC“) issued two highly anticipated circulars on tokenisation (i.e. the Circular on intermediaries engaging in tokenised securities-related activities (the “Tokenised Securities Circular“), and the Circular on tokenisation of SFC-authorised investment products (the “Tokenised Investment Products Circular“)). The Tokenised Securities Circular aims to provide conduct-related guidance to intermediaries engaging in tokenised securities-related activities, while the Tokenised Investment Products Circular sets out the requirements and additional safeguards under which the SFC would consider in allowing tokenisation of investment products authorised by the SFC under Part IV of the Securities and Futures Ordinance (Cap. 571) for offering to the public in Hong Kong.

Notably, the Tokenised Securities Circular now allows retail access to the distribution and marketing of “Tokenised Securities”, a concept defined in the circular itself. This represents the SFC’s shift in attitude since its Statement on Security Token Offerings dated 28 March 2019, where security tokens were previously considered as “complex products” requiring additional investment protection measures which should only be offered to professional investors.

Please see our article for more details.

The Hong Kong International Arbitration Centre (“HKIAC“) has proposed amendments to the 2018 version of its Administered Arbitration Rules (the “2018 Rules“) through consultation. A copy of the amended draft Rules is available here.

The key proposed amendments to the 2018 Rules are summarised as follows:

1. Diversity in arbitral appointments (see proposed Art. 10): parties and co-arbitrators are encouraged to consider “diversity” when selecting arbitrators, but the HKIAC offers no definition or guiding principles regarding the concept of “diversity“.
2. Clarifications of the arbitral tribunal’s powers (see proposed Art. 14.6, 14.9 and 14.10): the proposed amendments clarify that the tribunal has power to determine preliminary issues and enhance the HKIAC’s role in matters that impact the integrity of the arbitral process, such as the appointment of arbitrators and revocation of an arbitrator’s mandate.
3. Enhancements to the mechanism for a single arbitration to proceed under multiple contracts (see proposed Art. 30.2): the proposed amendments allow the HKIAC to appoint the arbitral tribunal if it determines that the arbitration is properly commenced under Article 30, with parties deemed to have waived their rights to designate an arbitrator.
4. Considerations for cost apportionment (see proposed Art. 35.3): factors such as the scale and complexity of the dispute, parties’ conduct, outcome related fee structure agreements, and adverse environmental impact are proposed to be taken into account when deciding how to apportion arbitration costs.
5. Enhanced information security provisions (see proposed Art. 47): Data protection and cybersecurity are critical in international arbitration, as demonstrated by the hacking incident of the Permanent Court of Arbitration website during the China-Philippines maritime border dispute in July 2015. In light of this background, the HKIAC has taken steps to address the risk of cyberattacks such as recognising secure online repositories as valid means of communication and is now proposing amendments empowering the arbitral tribunal to make decisions, orders, or awards in respect of any breaches of information security measures agreed upon by the parties or directed by the tribunal.
6. Determination of fees payable to arbitrators (see proposed §5.1 of Schedule 2 and §5 of Schedule 3): the proposed amendments grant the HKIAC the authority to review and adjust the fees and expenses of the arbitral tribunal if parties have chosen to pay based on an hourly rate. Similarly, if parties have elected to pay by reference to an ad valorem fee scale, the HKIAC is empowered to determine the amount of fees and expenses to be paid to any arbitrator.
7. Clarifications of the powers of the emergency arbitrator (“EA“) (see proposed §10 of Schedule 4): the 2018 Rules include an emergency arbitration mechanism which enables parties to seek urgent interim relief from an emergency arbitrator prior to the establishment of the arbitral tribunal. Typically, the HKIAC appoints an EA within 24 hours of receiving an application, and the EA will make an emergency decision within 14 days. The proposed amendments clarify that the EA has the power to issue any order during this 14-day timeframe.

The consultation period concluded on the 23^rd of this month. We shall await further updates from the HKIAC regarding the finalisation of the timing and form of the amendments.

On 1 February 2024, the Hong Kong High Court in Hip Hing Construction Company v Hong Kong Airlines Ltd [2024] HKCFI 370 considered whether, and to what extent, segregation of funds is a necessary condition for the creation of a trust in respect of such funds.

In the Honourable Madam Justice Mimmie Chan’s judgment, her ladyship held that while segregation is normally an indicator of a trust, the mingling of funds is not fatal to the creation of a trust, and the Court should look at all the circumstances as there may be other indicators of the trust ([46]).

Background

The Plaintiff (Hip Hing Construction Company) sought  a declaration that the Defendant (Hong Kong Airlines) held HK$56,321,000 as retention monies on trust for the Defendant, pursuant to the standard form building contract (i.e. Clause 32.5 of the General Conditions of the Standard Form of Building Contract (2005 Private Edition)) entered into between them. As a winding-up petition had been presented against the Defendant in 2022 and a subsequent scheme of arrangement and restructuring plan became effective in 2023 ([8]), the declaration of a trust over the retention monies would mean that the retention monies would need not to be shared in the general pool of the Defendant’s assets with other creditors ([9]) and the Plaintiff could claim them in their entirety.

Has a trust over the retention monies  been created?

For the creation of a trust, there must be certainty of intention, certainty of subject matter, and certainty of object. While there is no dispute that the sum of HK$56,321,000 had never (prior to this action) been paid into any segregated bank account of the Defendant nor segregated from the rest of the Defendant’s receipts and funds held ([6]), the question before the Court was whether the lack of segregation would mean that the trust failed for lack of certainty of the subject matter.

The problem of the lack of certainty of subject matter often arises with fungible property (such as shares, monies). If the transferor is free to select the relevant property from any source, then the transferee cannot possibly acquire an ownership interest in any particular bulk, as the situation would be one of an intended transfer of property which is completely unidentified until the transferor makes the necessary choice. Until such identification, it would be impossible for the transferee to obtain a property interest at all ([61]).

Having considered two of conflicting lines of authority[1], the Court concluded that the lack of segregation is not an absolute bar to the creation of a trust, and each case must be decided on its particular facts, taking into account the nature of the asset which is claimed to be the subject matter of the trust, and whether and how it can be identified with certainty ([14]). Madam Justice Mimmie Chan noted  that although in the following cases segregation was lacking, there were other factors present which were sufficient to identify the subject matter with certainty:

• In Re CA Pacific Finance Ltd [1999] 2 HKLRD 1, relating to the collapse of a securities brokerage, although there were no numbered certificates issued and no earmarking of relevant scrip by number or otherwise, there were strict requirements at each level of the CCASS clearing system to show what securities were held for whom and the quantities of each type of securities held for the account of each client was recorded by the broker ([17]);
• In Re Gatecoin Ltd [2023] 2 HKLRD 1079, relating to the insolvency of a cryptocurrency exchange platform, the internal ledgers clearly recorded the contributions of cryptocurrency by each account holder and the proportionate share of the undivided bulk to which each account holder was entitled could be identified with certainty ([29]);
• In Re Hsin Chong Construction Co [2021] 5 HKLRD 212, relating to the insolvency of a contractor, the employer had a “stringent” project accounting system and the retention money could be easily ascertained. For example, there was evidence on how payment was made by the employer, how the retention money had been set aside as capital commitment in the bank account since the commencement of the project[2], how the retention money was maintained throughout, and that the retention money of each nominated subcontractor could be identified clearly at any time ([43]).

Coming back to the present case, as the Plaintiff could only identify the retention monies as all the money in any and all bank accounts of the Defendant, and there was no other evidence before the Court , to show that the location of the retention monies could be identified with more particularity, (for example in one specific bank account, or several bank named accounts, there could not be any certain or identifiable subject matter to be impressed with the trust ([48]).

Implications

Parties are advised to be vigilant in safeguarding their interests in ensuring that trust property is preserved in face of any insolvency risk of the counterparty. Especially for fungible property, proactive measures are encouraged, whether by means of contracting (to insert an express obligation to produce proof of segregation) or applying to the court (as the case maybe) at an early stage.

See full judgment here.

[1] The conflict is between segregation being a necessary requirement for the existence of a valid trust versus segregation being only an indicator of the creation of a trust and the absence of which is not fatal ([13]).

[2] Conventionally retention monies are to be kept in a completely separate trust fund for the benefit of another if they are to be impressed with a trust (MacJordan Construction Ltd v Brookmount Erostin Ltd [1994] CLC 581, 586).