Introduction

On July 22, 2015, the Securities and Futures Commission (SFC) commenced proceedings in the Market Misconduct Tribunal (MMT) against AcrossAsia Limited (AAL), its chairman and its chief executive officer (CEO), for breach of disclosure requirement imposed on listed companies under Part XIVA of the Securities and Futures Ordinance (SFO). This is the first set of proceedings in the MMT brought by the SFC in relation to the disclosure obligations imposed on listed companies under the SFO since they became effective on January 1, 2013.

Background

AAL is a Cayman Islands-incorporated investment holding company listed on the Growth Enterprise Market of The Stock Exchange of Hong Kong Limited. Its major asset is a 55.1% holding and controlling interest in PT First Media Tbk (First Media), a company listed on the Stock Exchange of Indonesia. AAL’s income and profit is derived from the business operations of First Media and its subsidiaries. First Media is an unrivalled multimedia service provider in Indonesia offering broadband Internet and digital-quality cable TV services, and is the first pay-TV network in Indonesia offering High-Definition TV programs.

On June 30, 2011, AAL entered into a loan facility agreement with First Media whereby AAL borrowed US$44 million from First Media at an interest rate of 4.75% per annum for a period of three months, with an option to automatically roll over for up to one year. When the loan has remained unpaid by AAL, First Media commenced arbitration proceedings against AAL at the Indonesian National Board of Arbitration and obtained an arbitration award to recover the principal loan which was due on June 30, 2012 (Award). Subsequently, when AAL failed to satisfy the Award, First Media commenced insolvency-related proceedings in Indonesia against AAL by way of a petition dated December 20, 2012 and a summons dated December 28, 2012 (Insolvency Proceedings). The Insolvency Proceedings sought, among other things, to temporarily suspend AAL’s obligation for payment of debts to enable a plan to be presented to First Media and to appoint an Indonesian judge and administrators to manage AAL’s assets.

The documents in relation to the Insolvency Proceedings were received by AAL on January 2, 2013, and the English translations of these documents were provided to AAL and circulated amongst its officers, including its chairman and CEO, on January 4, 2013. However, the information was not disclosed to the public in a timely manner until January 17, 2013, resulting in a 13-day delay.

AAL sought a suspension of trading on January 15, 2013 and when trading resumed on February 22, 2013, the share price of AAL had plunged 22.5%.

SFC Allegations

The SFC alleges that the information in relation to the Insolvency Proceedings was “inside information” within the meaning of section 307A of the SFO, given that it was specific information about AAL, and not generally known to the persons who were accustomed or would be likely to deal in the listed securities of AAL, but would, if generally known, be likely to materially affect the price of those securities.

Section 307A(1) of the SFO states that "inside information", in relation to a listed corporation, means specific information that:

  1. is about
    1. the corporation;
    2. a shareholder or officer of the corporation; or
    3. the listed securities of the corporation or their derivatives; and
  2. is not generally known to the persons who are accustomed or would be likely to deal in the listed securities of the corporation but would if generally known to them be likely to materially affect the price of the listed securities.”

Pursuant to section 307B(1) of the SFO, a listed company must disclose inside information to the public as soon as reasonably practicable. The SFC alleges that AAL’s delay in issuing an announcement in relation to inside information of the Insolvency Proceedings after it came into its knowledge on or about January 4, 2013 was in breach of section 307B(1) of the SFO.

The SFC has also commenced proceedings in the MMT against AAL’s chairman and CEO for their reckless or negligent conduct in causing the alleged breach by AAL under section 307B(1) of the SFO. Section 307G(2)(a) of the SFO requires the officers of listed corporations to take all reasonable measures to ensure that proper safeguards exist to ensure the corporation’s compliance with its disclosure obligations. Accordingly, the officers of AAL were also alleged to be in breach of the disclosure requirement pursuant to section 307G(2)(a) of the SFO.

Observations

The SFC has previously indicated that it is their intention to catch senior management, not middle- or low-ranking staff. The action brought by SFC against AAL highlights that while the obligation of disclosure lies with the listed corporations, it is important for the officers (i.e. directors and senior management) of the listed corporations to ensure that the listed corporations observe the statutory disclosure obligation to avoid being personally liable for breaches under the Part XIVA of the SFO.