LEGISLATIVE COUNCIL ─ 6 June 2012 14339 OFFICIAL RECORD OF PROCEEDINGS Wednesday, 6 June 2012 The Council met at Eleven o'clock MEMBERS PRESENT: THE PRESIDENT THE HONOURABLE JASPER TSANG YOK-SING, G.B.S., J.P. THE HONOURABLE ALBERT HO CHUN-YAN IR DR THE HONOURABLE RAYMOND HO CHUNG-TAI, S.B.S., S.B.ST.J., J.P. THE HONOURABLE LEE CHEUK-YAN DR THE HONOURABLE DAVID LI KWOK-PO, G.B.M., G.B.S., J.P. THE HONOURABLE FRED LI WAH-MING, S.B.S., J.P. DR THE HONOURABLE MARGARET NG THE HONOURABLE JAMES TO KUN-SUN THE HONOURABLE CHEUNG MAN-KWONG THE HONOURABLE CHAN KAM-LAM, S.B.S., J.P. THE HONOURABLE MRS SOPHIE LEUNG LAU YAU-FUN, G.B.S., J.P. THE HONOURABLE LEUNG YIU-CHUNG DR THE HONOURABLE PHILIP WONG YU-HONG, G.B.S. 14340 LEGISLATIVE COUNCIL ─ 6 June 2012 THE HONOURABLE WONG YUNG-KAN, S.B.S., J.P. THE HONOURABLE LAU KONG-WAH, J.P. THE HONOURABLE LAU WONG-FAT, G.B.M., G.B.S., J.P. THE HONOURABLE MIRIAM LAU KIN-YEE, G.B.S., J.P. THE HONOURABLE EMILY LAU WAI-HING, J.P. THE HONOURABLE TAM YIU-CHUNG, G.B.S., J.P. THE HONOURABLE ABRAHAM SHEK LAI-HIM, S.B.S., J.P. THE HONOURABLE LI FUNG-YING, S.B.S., J.P. THE HONOURABLE TOMMY CHEUNG YU-YAN, S.B.S., J.P. THE HONOURABLE FREDERICK FUNG KIN-KEE, S.B.S., J.P. THE HONOURABLE AUDREY EU YUET-MEE, S.C., J.P. THE HONOURABLE VINCENT FANG KANG, S.B.S., J.P. THE HONOURABLE WONG KWOK-HING, M.H. THE HONOURABLE LEE WING-TAT DR THE HONOURABLE JOSEPH LEE KOK-LONG, S.B.S., J.P. THE HONOURABLE JEFFREY LAM KIN-FUNG, G.B.S., J.P. THE HONOURABLE ANDREW LEUNG KWAN-YUEN, G.B.S., J.P. THE HONOURABLE CHEUNG HOK-MING, G.B.S., J.P. THE HONOURABLE WONG TING-KWONG, B.B.S., J.P. LEGISLATIVE COUNCIL ─ 6 June 2012 14341 THE HONOURABLE RONNY TONG KA-WAH, S.C. THE HONOURABLE CHIM PUI-CHUNG PROF THE HONOURABLE PATRICK LAU SAU-SHING, S.B.S., J.P. THE HONOURABLE KAM NAI-WAI, M.H. THE HONOURABLE CYD HO SAU-LAN THE HONOURABLE STARRY LEE WAI-KING, J.P. DR THE HONOURABLE LAM TAI-FAI, B.B.S., J.P. THE HONOURABLE CHAN HAK-KAN THE HONOURABLE PAUL CHAN MO-PO, M.H., J.P. THE HONOURABLE CHAN KIN-POR, J.P. DR THE HONOURABLE PRISCILLA LEUNG MEI-FUN, J.P. DR THE HONOURABLE LEUNG KA-LAU THE HONOURABLE CHEUNG KWOK-CHE THE HONOURABLE WONG SING-CHI THE HONOURABLE WONG KWOK-KIN, B.B.S. THE HONOURABLE IP WAI-MING, M.H. THE HONOURABLE IP KWOK-HIM, G.B.S., J.P. THE HONOURABLE MRS REGINA IP LAU SUK-YEE, G.B.S., J.P. DR THE HONOURABLE PAN PEY-CHYOU 14342 LEGISLATIVE COUNCIL ─ 6 June 2012 THE HONOURABLE PAUL TSE WAI-CHUN, J.P. DR THE HONOURABLE SAMSON TAM WAI-HO, J.P. THE HONOURABLE ALAN LEONG KAH-KIT, S.C. THE HONOURABLE LEUNG KWOK-HUNG THE HONOURABLE TANYA CHAN THE HONOURABLE ALBERT CHAN WAI-YIP THE HONOURABLE WONG YUK-MAN MEMBERS ABSENT: THE HONOURABLE ANDREW CHENG KAR-FOO THE HONOURABLE TIMOTHY FOK TSUN-TING, G.B.S., J.P. PUBLIC OFFICERS ATTENDING: THE HONOURABLE MICHAEL SUEN MING-YEUNG, G.B.S., J.P. SECRETARY FOR EDUCATION DR THE HONOURABLE YORK CHOW YAT-NGOK, G.B.S., J.P. SECRETARY FOR FOOD AND HEALTH THE HONOURABLE GREGORY SO KAM-LEUNG, J.P. SECRETARY FOR COMMERCE AND ECONOMIC DEVELOPMENT THE HONOURABLE RAYMOND TAM CHI-YUEN, J.P. SECRETARY FOR CONSTITUTIONAL AND MAINLAND AFFAIRS LEGISLATIVE COUNCIL ─ 6 June 2012 14343 CLERKS IN ATTENDANCE: MS PAULINE NG MAN-WAH, SECRETARY GENERAL MISS ODELIA LEUNG HING-YEE, ASSISTANT SECRETARY GENERAL MRS JUSTINA LAM CHENG BO-LING, ASSISTANT SECRETARY GENERAL MRS PERCY MA, ASSISTANT SECRETARY GENERAL 14344 LEGISLATIVE COUNCIL ─ 6 June 2012 TABLING OF PAPERS The following papers were laid on the table under Rule 21(2) of the Rules of Procedure: Subsidiary Legislation/Instrument L.N. No. Securities and Futures (Short Position Reporting) Rules (Commencement) Notice ....................................... 103/2012 Other Papers No. 96 ─ The 23rd Report on the Work of the Advisory Committee on Post-service Employment of Civil Servants (1 January - 31 December 2011) Report No. 21/11-12 of the House Committee on Consideration of Subsidiary Legislation and Other Instruments Report of the Bills Committee on Mandatory Provident Fund Schemes (Amendment) (No. 2) Bill 2011 Report of the Bills Committee on Construction Industry Legislation (Miscellaneous Amendments) Bill 2012 Report of the Bills Committee on Personal Data (Privacy) (Amendment) Bill 2011 Report of the Legislative Council Subcommittee to Study Issues Arising from Lehman Brothers-related Minibonds and Structured Financial Products Report on certain issues related to the distribution of Lehman Brothers-related Minibonds and structured financial products LEGISLATIVE COUNCIL ─ 6 June 2012 14345 ADDRESSES PRESIDENT (in Cantonese): Addresses. Dr Raymond HO will address the Council on the "Report of the Legislative Council Subcommittee to Study Issues Arising from Lehman Brothers-related Minibonds and Structured Financial Products". Report of the Legislative Council Subcommittee to Study Issues Arising from Lehman Brothers-related Minibonds and Structured Financial Products DR RAYMOND HO (in Cantonese): President, in my capacity as Chairman of the Subcommittee to Study Issues Arising from Lehman Brothers-related Minibonds and Structured Financial Products (the Subcommittee), I now submit the report to this Council on behalf of the Subcommittee. On 15 September 2008, Lehman Brothers Holdings Inc., the fourth largest investment bank in the United States of America, filed a petition in the United States Bankruptcy Court. Here in Hong Kong, tens of thousands of investors who had purchased and were holding outstanding Lehman Brothers (LB)-related Minibonds and structured financial products suffered losses. According to information of the Hong Kong Monetary Authority (HKMA), some HK$20.23 billion worth of LB structured products had been sold through banks to over 43 700 investors. Many of these investors said that the bank staff who sold these products to them had not apprised them of the nature and risks of such products. They also queried whether the regulatory authorities, namely the HKMA and the Securities and Futures Commission (SFC), and the Administration had exercised effective regulation over the sale of complex financial products by banks. The LB incident has given rise to widespread public concerns. At the House Committee meeting on 13 October 2008, Members agreed that a subcommittee should be set up under the House Committee to study issues arising from LB-related Minibonds and structured financial products. A motion authorizing the Subcommittee to exercise the powers under section 9(1) of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382) was passed by Legislative Council on 12 November 2008. 14346 LEGISLATIVE COUNCIL ─ 6 June 2012 The Subcommittee commenced work in late October 2008 and took forward its work in three stages and by phases. During these stages, the Subcommittee held a total of 163 meetings, including 106 hearings to take evidence from 62 witnesses from the Administration, regulators, the management and front-line staff of six distributing banks of LB structured products and investors of such products. Besides, the Subcommittee held 57 meetings to consider legal and procedural matters, discuss the evidence obtained so as to compile its report. The issues involved in the LB incident are not only complex, but also highly controversial. Therefore, the Subcommittee has defined its areas of study in a most cautious manner and decided to focus its study on a number of major areas including the regulatory framework and arrangement governing the distribution of LB-related structured financial products by retail banks; the role of the Administration, the HKMA and the SFC in respect of policies and regulation; the systems and practices adopted by banks in relation to their distribution of these products, as well as related issues such as mechanism for dealing with investor complaints and investor protection. The Subcommittee has all along conducted its business in accordance with its Practice and Procedure. Its duties are not to investigate into specific cases, or the performance of some individual financial institutions or their staff. Neither will it assist individual investors to pursue their complaints and recoup their losses. The Subcommittee's analysis on evidence, observations, conclusions and recommendations in respect of its major areas of study are set out in the report. It is believed that a comprehensive discussion on the report will be conducted by Members in the motion debate on 13 June. Therefore, I will only raise a number of salient points in the following paragraphs. The commencement of the Securities and Futures Ordinance (SFO) and the Banking Ordinance on 1 April 2003 brought the securities business of banks under the regulatory regime of the SFO. On the regulatory arrangement, the HKMA is the front-line regulator of banks. The HKMA follows the standards and requirements that are stipulated and applied by the SFC to its licensed intermediaries in regulating the regulated activities by banks, including the distribution of LB structured products. Unlike the SFC which maintains a licensing regime for intermediaries engaged in securities business, relevant LEGISLATIVE COUNCIL ─ 6 June 2012 14347 individuals (ReIs) who engaged in regulated activities were not required to be licensed. The HKMA relies on the bank management to ensure that their ReIs meet the requirement in terms of fitness and properness, and comply with the regulatory requirements. However, the number of sanctions on them by the HKMA prior to the collapse of the LB is relatively small.