Since the financial crisis, only a handful of mis-selling claims on behalf of investors have gone to trial in Hong Kong and even fewer have gone on to appeal. DBS Bank (Hong Kong) Ltd v Sit Pan Jit is one such case. The case is essentially about a defendant investor's counterclaim against a bank based on allegations of mis-selling in connection with certain complicated investment products. That claim failed in the lower court and the Court of Appeal. More recently, the investor failed to obtain permission to appeal to the Court of Final Appeal. Therefore, the case has now come to an end (save for any costs disputes). It is likely to be of small comfort to the investor that since the financial crisis his mis-selling claim has gone as far as any other in Hong Kong, even if the eventual outcome comes as no surprise.
The background to the case is set out in a previous update.(1) At first instance, all of the investor's primary claims against the bank in contract, tort and misrepresentation failed. The fact of the appeal to the Court of Appeal was newsworthy in itself, although the Court of Appeal declined to interfere with the trial judge's findings of primary fact regarding the absence of any breach on the bank's part.(2)
In passing, the Court of Appeal recognised that the juridical basis for an argument based on contractual estoppel (to the effect that the bank was not advising and the customer did not rely on any representation) might be open for argument in another case.
Undeterred, the investor applied for permission to appeal to the Court of Final Appeal, but that application was recently dismissed by the Appeal Committee (comprising three judges). The investor's lawyers sought to argue that one of the claims for misrepresentation (in connection with Section 108 of the Securities and Futures Ordinance) raised a point of great general or public importance.(3) This argument was roundly rejected by the Appeal Committee as (in effect) a collateral attack on concurrent findings in the lower courts – in the absence of any rare and exceptional circumstances, there was no basis for reviewing these findings and, therefore, no ground for allowing a final appeal.(4)
Obtaining permission for a final appeal in a commercial case is not easy, particularly in a dispute that is as fact sensitive as this case. For example, an argument in connection with an alleged misrepresentation in a commercial setting is less likely to attract the interest of the Appeal Committee of the Court of Final Appeal compared with a point of importance arising in a constitutional or public law context. The investor in this case has had two attempts to succeed (at first instance and on appeal) and that is as far as he can go as a matter of substantive argument. That the investor took his case to the Appeal Committee means that his mis-selling claim has gone as far as any other in Hong Kong in recent years.
In the meantime, financial institutions in Hong Kong are preparing for the deadline by which the Securities and Futures Commission has mandated that they amend their client agreements to exclude any provision which (among other things) mis-describes the actual services to be provided to a client.(5) Again, that is unlikely to be of much comfort to the investor in this case, but it will remove certain of the common obstacles in claims of this nature.
For further information on this topic please contact Jonathan Cary or Ben Yates at Smyth &Co in association with RPC by telephone (+852 2216 7100) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
Endnotes
(1) For further details please see "Still no joy for investors' mis-selling claims".
(2) For further details please see "Mis-selling claim fails on appeal".
(3) Section 108 of the Securities and Futures Ordinance, Cap 571 ("Civil liability for inducing others to invest money in certain cases").
(4) DBS Bank (Hong Kong) Ltd v Sit Pan Jit [2017] HKEC 298, FAMV 45/2016, February 17 2017. Also see CACV 91/2015, September 26 2016 (the failed application for permission to appeal before the Court of Appeal) – in particular, at paragraph 10 (refusing to give permission to appeal on the contractual estoppel point).
