The Supreme Court has held that the correct test for dishonesty is whether or not the defendant’s conduct is dishonest by the objective standards of ordinary reasonable and honest people: Ivey v Genting Casinos (UK) Ltd t/a Crockfords  UKSC 67. Albeit that the Court did not need to rule on the point, the judgment would remove the second limb of the previous two-phase objective and subjective test for dishonesty as set out in R v Ghosh  QB 1053. The Court also concluded that the tests for dishonesty in criminal and civil proceedings should be the same. Please click here for our full briefing on the case.
GHOSH DISHONESTY DISAPPROVED: DISHONESTY NOW TO BE ASSESSED SOLELY AGAINST THE STANDARDS OF ORDINARY REASONABLE AND HONEST PEOPLE
Hong Kong corporate crime team publishes article addressing the thorny issue of privilege in Asia investigations
Given the variety of civil law and common law systems across Asia, and the fact that corporate investigations in the region almost always involve multi-jurisdictional elements, protecting privilege is a complex topic. With the differing approaches to privilege adopted both in Asia and in aggressive enforcement jurisdictions like the US and the UK, this topic occupies lawyers, law enforcement agencies and regulators alike.
This article, first published in Global Investigations Review’s The Asia-Pacific Investigations Review 2018, summarises the position in Asian civil law countries as well as in key common law jurisdictions like Hong Kong and Singapore. It also highlights recent developments in the UK including in the RBS Rights Issue and ENRC cases, as well as the position in the US. Finally, it covers practical steps to be taken to maintain privilege over relevant documents and evidence in the context of investigations. The article, authored by Kyle Wombolt, Christine Cuthbert and Anita Phillips, is available to download here. The Asia-Pacific Investigations Review 2018 is available to download here.
Last month the Communist Party of China held its 19th National Congress. One of the key themes that came out of the Congress was the desire to increase the focus on combatting financial crime and systemic financial risk.
This increased focus follows on the back of the stock market crash in summer 2015 and enforcement actions against those considered responsible for the crash, including investigations into allegations of bribery and stock market manipulation involving senior officials at the China Securities Regulatory Commission (CSRC) and the China Insurance Regulatory Commission (CIRC), as well as criminal proceedings against brokerages. Continue reading
The Hong Kong Securities and Futures Commission (SFC) has recently conducted around 250 inspections of licensed corporations engaged in asset management business, and has identified a number of common instances of regulatory non-compliance among them, which it has set out in its circular of 15 September 2017 (with appendix). In the circular, the SFC also sets out its expectations and calls on asset managers to review their internal control procedures and operational capabilities and enhance them (if necessary) to meet the SFC’s expectations. The Hong Kong Monetary Authority (HKMA) has also issued a circular to bring the SFC circular to the attention of registered institutions engaging in asset management business. Continue reading
Hong Kong SFC publishes consultation conclusions and guidelines for reducing and mitigating hacking risks related to internet trading
On 27 October 2017, the Securities and Futures Commission (SFC) in Hong Kong issued a circular and Guidelines for Reducing and Mitigating Hacking Risks Associated with Internet Trading (Guidelines), which require all licensed or registered persons engaged in internet trading to implement 20 baseline requirements to enhance their cybersecurity resilience and reduce and mitigate hacking risks. The Guidelines were issued following the SFC’s publication of their conclusions on the related consultation on the same day. Continue reading
A jury has failed to reach a verdict in relation to a bribery charge against the former Chief Executive of Hong Kong, Donald Tsang Yam-kuen. On Friday 3 November, after 14 hours of deliberation, the jury advised the court that it was unable to reach a verdict and was dismissed. This is the second time a jury has been unable to reach a verdict on this charge. In February, Mr Tsang was convicted of misconduct in public office but the jury was hung on the concurrent bribery charge and a retrial was ordered. Yesterday, the prosecution indicated that the Department of Justice is not intending to seek a second retrial.
Following our earlier bulletin, on October 31, 2017, the US Department of State and Department of Treasury’s Office of Foreign Assets Control (“OFAC”) posted comprehensive guidance related to the Countering America’s Adversaries Through Sanctions Act of 2017 (“CAATSA”). The new guidance addresses multiple provisions of CAATSA, mainly the provisions concerning secondary sanctions targeting Russia. The new guidance significantly limits and clarifies the scope of these secondary sanctions.
As detailed in our prior alert, on August 2, 2017, President Trump signed CAATSA into law. The legislation provided several new categories of primary and secondary sanctions relating to Russia, Iran and North Korea.
Welcome to the October 2017 edition of our corporate crime update – our round up of developments in relation to corruption, money laundering, fraud, sanctions and related matters. Our update now covers a number of jurisdictions. Below we provide a brief overview of what is covered in each update.
On 12 October 2017, the government published the Criminal Finances Act 2017 (Commencement No. 2 and Transitional Provisions) Regulations 2017 (“the Regulations”), which will bring into force several more sections of the Criminal Finances Act 2017 (the “Act”) on 31 October 2017.
The Act received royal assent on 27 April 2017. It contains various measures intended to “tackle money laundering and corruption, recover the proceeds of crime and counter terrorist financing”. For more information, see our blog post here.
The first commencement regulations under the Act were introduced on 13 July 2017, and brought into effect the “failure to prevent the facilitation of tax evasion” offences from 30 September 2017. For more information on these offences, please see our blog post here.