RE AXA (HONG KONG) LIFE INSURANCE CO LTD

HCMP 1647/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1647 OF 2012

____________

____________

_______________

J U D G M E N T

_______________

1.  This is a petition presented jointly by AXA (Hong Kong) Life Insurance Company Limited (“AXAHKL”) and AXA China Region Insurance Company (Bermuda) Limited (“AXACRIB”) (collectively “the Petitioners”) under section 24 of the Insurance Companies Ordinance (“the Ordinance”), seeking the Court’s sanction of a scheme (“the Scheme”) for the transfer of the whole of the long term business, as defined in the Ordinance, currently carried on by AXAHKL from AXAHKL to AXACRIB, which is itself authorised to, and does, carry on a similar business.

2.  AXAHKL is a company incorporated in Hong Kong under the Companies Ordinance.  Since its incorporation as East Asia Aetna Company (HK) Limited on 22 May 1984, it has undergone a number of changes of name, becoming AXAHKL when that English name was adopted on 30 June 2011 (its Chinese name, however, was different at that date, with its current Chinese name being adopted on 15 July 2011).  It is a wholly owned subsidiary of AXA Financial Services Holdings Limited (“AXAFSH”), which is in turn a wholly owned subsidiary of AXA China Region Limited (“AXACR”).  It is authorised under section 8 of the Ordinance to carry on long-term insurance business in Hong Kong under the following Classes in Part 2 of the First Schedule to the Ordinance, namely: A (life and annuity), C (linked long-term), D (permanent health), G (retirement scheme management category I), H (retirement scheme management category II) and I (retirement scheme management category III). AXAHKL ceased entering into new contracts of insurance in about May 2006. It is subject to the regulation and supervision of the Hong Kong Insurance Authority (“the Authority”).  AXAHKL’s paid up capital is some HK$1,063,830,023.00, consisting of 799,205,023 ordinary shares and 263,625,000 non-voting deferred shares.  All of such shares have a par value of HK$1.00.

3.  AXACRIB is a company incorporated in Bermuda under the Manor Insurance Company Act 1968.  Since its incorporation on 18 April 1968 as Manor Insurance Company Limited, it too has undergone a number of changes of name, becoming AXACRIB on 6 August 1999.  On 19 July 2011, it was registered with a secondary name consisting of its current Chinese name.  It is a wholly owned subsidiary of AXACR.  It is authorised under section 8 of the Ordinance to carry on the same classes of long-term insurance business in Hong Kong as AXAHKL (ie, under Classes A, C, D, G, H and I of Part 2 of the First Schedule to the Ordinance).  It is also authorised to carry on various classes of general insurance under Part 3 of the said Schedule.  It is therefore also subject to the regulation and supervision of the Authority.  AXACRIB’s paid up capital is US$20,617,000.00 (equivalent to about HK$160,812,600.00), made up of 20,617,000 common shares of US$1.00 each.

4.  Under the Scheme, upon its becoming effective, AXACRIB will become the insurer under the transferred policies in place of AXAHKL.  This will be the only change in respect of the policies to be transferred.  Thus, the terms and conditions of, and the rights of policyholders under, such transferred policies will remain entirely unchanged, and the only difference will be that such rights will, in future, be enforceable against AXACRIB in place of AXAHKL.  The Scheme (in common with other similar Schemes which have been considered in earlier cases) does not provide for current policyholders of AXAHKL to be entitled to opt out of the transfer, or to seek a return of premium or other compensation.

5.  Under sections 24 and 25 of the Ordinance, an authorised insurer is permitted to transfer its long term insurance business carried on in Hong Kong, subject to satisfying the requirements specified in those sections.

6.  In support of the application, the Petitioners have filed two affirmations made by Mr Stuart Edward Harrison, a director and the Chief Executive Officer of both AXAHKL and AXACRIB.  In his affirmations, Mr Harrison has explained the purpose of the proposed transfer as being to improve the capital and administrative efficiency of the AXACR group’s life insurance business in Hong Kong.  This purpose is to be achieved by the following intended and anticipated outcomes of the group’s structure after the Scheme is put in place:-

(1)   increased efficiency of audit and regulatory compliance within the group;

(2)   increased efficiency of capital management within the group; and

(3)   more efficient conduct of administrative responsibilities within the group.

7.  A further purpose of the proposed transfer identified by Mr Harrison is to benefit long-term policyholders of both AXAHKL and AXACRIB by achieving better financial stability as a result of the diversification benefits arising from the pooling of different risks of varying degrees among a larger group of policyholders.  As to this, preliminary financial projections by the appointed independent actuary show that the solvency position of AXACRIB after the transfer will be less volatile than the pre-transfer solvency position of both AXAHKL and AXACRIB.

8.  As at 31 December 2011, AXAHKL (whose business is to be transferred) had issued a total of 98,634 long-term insurance policies which were still in force.  Of these the bulk consisted of policies under Class A of Part 2 of the First Schedule to the Ordinance, while there were also some 1,850 policies falling under Class C.  As at the same date, AXACRIB had issued a total of 540,335 long-term insurance policies under Classes A and C.  In addition, AXACRIB also had a total of 27,507 retirement schemes under Class G under management. 

9.  As required by section 24(2) of the Ordinance, the petition is supported by a report prepared by an independent actuary, Mr Paul Sinnott.  In his report, which examines the terms and impact of the Scheme in considerable detail, Mr Sinnott states his opinion that:-

(1)   the Scheme will have no adverse effect on the reasonable benefit expectations of the transferring policyholders of AXAHKL, or on the reasonable benefit expectations of the existing policyholders of AXACRIB.

(2)   there will be no adverse impact of significance on AXAHKL’s long‑term policyholders’ financial security after the proposed transfer – rather, they will benefit from having a larger pool of assets to call on under adverse scenarios than would have existed before the transfer.

(3)   there will be no adverse impact of significance on the financial security of the existing policyholders of AXACRIB.

10.  In connection with the last two of these points, Mr Sinnott has observed that the solvency ratio of AXACRIB after the transfer is projected to be over 350%, which is well above both the statutory minimum of 150% and the market average of solvency ratios for insurers carrying out long‑term insurance business in Hong Kong.  At present, AXAHKL’s latest solvency ratio stands at about 372%, while that of AXACRIB stands at 392%.  Thus, the projected post‑Scheme solvency ratio for the combined operations is expected to be of a similar level to the present solvency ratios of the companies individually. Even if it might turn out to be slightly lower than the present individual solvency ratios of the two companies, the difference appears to be marginal, and of no significant adverse impact, bearing in mind that it is still expected to be more than double the statutory minimum.  According to Mr Sinnott, he has been told by the Petitioners that the intention is that after the Scheme is implemented, it is intended that the solvency ratio should be maintained in the 300%-350% range.  In the event that it should, for reasons not presently foreseen, drop as far as 200% (and it is not suggested that this is something that might happen), steps would be taken to reassess the financial strategies being used by AXACRIB to manage its solvency position.

11.  Mr Sinnott also expresses the opinion that after the Scheme takes effect, AXACRIB will be more resilient to future interest rate movements, and that policyholder security overall could improve as a result of enhanced efficiencies and diversification benefits arising from a larger operation post‑transfer.

12.  Under the Ordinance, for the court to have jurisdiction to sanction any transfer of long-term business, it must be satisfied that the transferee insurer is, or would upon the making of the order be, authorised to carry on the long‑term business to be transferred.  This requirement is satisfied here, as AXACRIB is, as I have noted, authorised to underwrite policies under Classes A and C of Part 2 of the First Schedule, and all of the policies to be transferred to it from AXAHKL fall within those classes.

13.  A further pre-condition to jurisdiction is that the notice requirements set out in section 24 of the Ordinance must be complied with.  As a matter of procedure, applicants will generally obtain directions as to compliance with the various matters required in terms, for example, of the giving of notice to affected policyholders and the Authority, seeking such modifications to such requirements as may be appropriate in the circumstances of the particular case.  In the present case, this was done at a directions hearing on 17 August 2012.  All the directions then given have now been complied with so far as practicable, as appears from Mr Harrison’s 2^nd affirmation.  In particular, all policyholders for whom an up to date address was available were sent a copy of a statement summarising the effect of the Scheme and the independent actuary’s report.  Policyholders were also notified of their ability to inspect or obtain copies of the full documents should they wish to do so, and these were also made available on both Petitioners’ websites.

14.  Between 24 August 2012 and 5 October 2012, the Petitioners received a total of 3,133 enquiries and responses from policyholders.  Of these, 21 were complaints – two relating to the administration of the proposed transfer, and 19 relating to the substance of the proposed transfer.  All but one of these had, by 8 October 2012, been addressed, and that one was in the process of being dealt with.  Of the enquiries and complaints, the vast majority were made orally, via a customer service hotline set up by the Petitioners to deal with them.  However, seven policyholders submitted written notices of objection to the Petitioners, indicating that they wished to appear at the hearing of the petition in order to object to the approval of the Scheme that the Petitioners sought.  In addition, one policyholder wrote to the Consumer Council expressing concerns and raising queries over the proposed transfer, and his concerns and queries were conveyed to the Petitioners by the Consumer Council.  All such written complaints and expressions of concern were responded to in writing by the Petitioners.  It would seem that these responses have satisfied most of the policyholders concerned, as only three of them (Mr Cheng Kwok Leung, Ms Mui Wai Chu and Mr Leung Hong Wah (who was the complainant to the Consumer Council)), attended at the hearing of the Petition to object to the proposed transfer and make submissions in opposition to it.

15.  At the hearing of the petition, the Petitioners were represented by Mr Coleman SC and Ms Lau.  The Authority was represented by Mr Wong.  Mr Cheng, Ms Mui and Mr Leung appeared in person to voice their objections and concerns.  Mr Cheng is a policyholder with AXAHKL, Mr Leung a policyholder with AXACRIB, and Ms Mui, although apparently not a policyholder of either company (she holds a policy or policies issued by another associated company) said that she appeared on behalf of family members who had received notification of the Scheme – notwithstanding that she was not herself a policyholder of either Petitioner, I permitted her to appear and voice her objections.

16.  The approach of the Hong Kong court to petitions of this kind is as explained by Kwan J (as she then was) in Re Winterthur Life [2005] 3 HKC 34.  It is an approach which has since been adopted in other cases, such as Re Sun Life Financial (Hong Kong) Ltd [2006] 4 HKLRD 369 (another decision of Kwan J) and Re Transamerica Occidental Life Insurance Company (unreported, CFI, HCMP 2132 of 2006, 3 January 2007) (a decision of Poon J), and I, too, propose to adopt it in the present case.

17.  In Re Winterthur Life, Kwan J said (at paragraph 17 of her judgment):-

“17. Section 24 of [the Ordinance] is based on the former s 49 of the Insurance Companies Act 1982 in the United Kingdom. Although this provision has been amended, the amendments do not make any material difference as regards the function and approach of the court in the exercise of its power under this provision. The leading authority in this respect is the judgment of Hoffman J (as he then was) in Re London Life Association Ltd (21 February 1989, unreported). The principles to be derived from that judgment have been helpfully summarized by Evans-Lombe J in Re AXA Equity and Law Life Assurance Society plc [2001] 2 BCLC 447 at 468e to 469b:

[6] It seems to me that the following principles emerge from the judgment of Hoffmann J which should govern the approach of the court to applications of this type. I gratefully adopt those principles. They are:

(1) The 1982 Act confers an absolute discretion on the court whether or not to sanction a scheme but this is a discretion which must be exercised by giving due recognition to the commercial judgment entrusted by the company’s constitution to its directors.

(2) The court is concerned whether a policyholder, employee or other interested person or any group of them will be adversely affected by the scheme.

(3) This is primarily a matter of actuarial judgment involving a comparison of the security and reasonable expectations of policyholders without the scheme with what would be the result if the scheme were implemented. For the purpose of this comparison the 1982 Act assigns an important role to the independent actuary to whose report the court will give close attention.

(4) The FSA [the Financial Services Authority; the Hong Kong equivalent is the Insurance Authority] by reason of its regulatory powers can also be expected to have the necessary material and expertise to express an informed opinion on whether policyholders are likely to be adversely affected. Again the court will pay close attention to any views expressed by the FSA.

(5) That individual policyholders or groups of policyholders may be adversely affected does not mean that the scheme has to be rejected by the court. The fundamental question is whether the scheme as a whole is fair as between the interests of the different classes of persons affected.

(6) It is not the function of the court to produce what, in its view, is the best possible scheme. As between different schemes, all of which the court may deem fair, it is the company’s directors’ choice which to pursue.

(7) Under the same principle the details of the scheme are not a matter for the court provided that the scheme as a whole is found to be fair. Thus the court will not amend the scheme because it thinks that individual provisions could be improved upon.

(8) It seems to me to follow from the above and in particular paras (2), (3) and (5) that the court, in arriving at its conclusion, should first determine what the contractual rights and reasonable expectations of policyholders were before the scheme was promulgated and then compare those with the likely result on the rights and expectations of policyholders if the scheme is put into effect.”

18.  I turn to consider the petition and the various objections that have been raised, bearing these principles in mind.

19.  In the light of the evidence before me, it is clear that the Scheme is both well intentioned and commercially justified. The rights of the policyholders, both those of AXAHKL whose policies are being transferred, and those who have existing policies with AXACRIB to whom the policies are to be transferred, are to be unchanged after the transfer.  Such rights, and the reasonable benefit expectations and financial security of all policyholders, both those of AXAHKL and AXACRIB, appear to be well protected, and to remain substantially unchanged after the transfer.  They are not, on any reasonably foreseeable basis, likely to be adversely affected in any significant way.  That this is so appears clearly from the report of the independent actuary, Mr Sinnott, who has also identified some potential benefits of the Scheme for policyholders of both Petitioners.

20.  Further, the Authority has made it clear that it sees no reason to object to the Scheme.  The Authority was kept fully informed throughout the process by which the Scheme was devised, and also throughout the progress of these proceedings.  It has been consulted by the Petitioners as to the terms of the Scheme, and as to these proceedings.  As a responsible regulator, it will have given careful consideration to all the relevant circumstances in coming to this view.  In his submissions at the hearing, Mr Wong indicated that having heard all of the objections and queries raised by Mr Cheng, Ms Mui and Mr Leung, the Authority maintained that position.

21.   As is clear from the authorities, the court will pay close attention to the views of both the independent actuary and the Authority.  Their views in this case provide solid support for the approval of the Scheme.

22.   On the other hand, having given careful consideration to the objections and concerns that have been raised by Mr Cheng, Ms Mui and Mr Leung, I have come to the conclusion that they are not well founded or such as to render the Scheme an unfair one, which should not be sanctioned by the court.  I set out below the matters raised by them, and my reasons for coming to the conclusion that I have reached.

23.   Mr Cheng and Ms Mui expressed concerns to the effect that, as AXACRIB is a company incorporated in Bermuda, policies issued by AXAHKL would be regulated not in accordance with the Ordinance and by the Authority, but pursuant to the laws of Bermuda.  This concern is misplaced. As AXACRIB is a licensed insurer in Hong Kong, and is authorised to carry on business pursuant to the Ordinance, it falls within the regulatory purview of the Authority, and is subject to the requirements of the Ordinance, for example in relation to such matters as minimum solvency ratios (which will, as I have noted, be comfortably exceeded).  The AXAHKL policies to be transferred to AXACRIB will remain subject to regulation under the Ordinance, and AXACRIB itself will remain, in respect of such policies, under the supervision of the Authority, just as is the case in respect of the existing policies issued by AXACRIB in the many years of its operation in Hong Kong.  I therefore do not regard this concern as one that has any substance.

24.   Mr Cheng also expressed concern as to the possibility that, following the transfer of AXAHKL policies to AXACRIB, AXACRIB may seek to have disputes in relation to such policies litigated in Bermuda and not in Hong Kong, which he said would be seriously detrimental to individual policyholders in Hong Kong.  However, as there are no changes to the terms and conditions of the policies, existing choice of law and jurisdiction clauses will remain unaltered.  Mr Cheng indicated that his policies had a Hong Kong choice of law clause, but no jurisdiction clause.  In these circumstances, I cannot see any possibility of an attempt to require litigation as to transferred AXAHKL policies to be dealt with in Bermuda succeeding.  The policies in question are governed by Hong Kong law, were made in Hong Kong, and were made between persons resident in Hong Kong and a company which (at the time of the contracts) was a Hong Kong incorporated company.  The company would remain one with a substantial presence in Hong Kong, and all facts and matters that might require investigation in any dispute would concern events and actions here.  In such circumstances, I have no doubt that Hong Kong would be the appropriate forum for any disputes.  In any event, there is nothing to suggest that AXACRIB, which has a substantial presence and business operation in Hong Kong, would seek to have any disputes with its customers litigated elsewhere. This concern is therefore also one that is without substance.

25.   Mr Cheng also said that he had bought his policies from what was, at the time, a Hong Kong company, which was subsequently taken over by AXAHKL, and had no wish to deal with a foreign-incorporated company. However, this is not a matter that can affect the court’s exercise of its discretion, for the reasons which I explain in paragraphs 27 and 28 below in relation to the objections that the Scheme does not require policyholders consent, or provide for disgruntled policyholders to opt out.

26.   A number of concerns were also expressed as to the independent actuary’s report, as follows:-

(1)   Mr Leung (through the Consumer Council) had suggested that each Petitioner should have appointed a separate independent actuary, so as to safeguard the interests of its own policyholders.  However, this is not a requirement under the Ordinance, which makes it clear that a report from a single actuary is both necessary and sufficient.

(2)   It was further suggested by Mr Leung (again through the Consumer Council) and Mr Cheng that the independent actuary had failed to provide details on the quality and nature of AXAHKL’s assets, and whether the transfer of such assets would affect distribution of discretionary policy dividends to AXACRIB’s policyholders.  However, it is clear from sections 5 and 6 of Mr Sinnott’s report that he has given detailed consideration to both the potential effect on the benefit expectations of all affected policyholders (of both companies) and of the effect of the Scheme on their financial security.  His view was that there would be no real adverse impact on either of these matters.  Moreover, it is clear from the report, and from the draft Order proposed, that, with the exception of non‑participating policies, assets held in respect of with profits and linked policies of AXAHKL and AXACRIB will, after the transfer, be retained in separate funds, so that there will in effect be four sets of funds and asset pools (for AXAHKL with profits policies, AXACRIB with profits policies, AXAHKL linked policies and AXACRIB linked policies respectively), to be managed in accordance with the existing investment policies of each, which are to remain unchanged.  Thus, I do not think that this objection is a valid one either.

(3)   Mr Cheng also suggested that the independent actuary’s views should not be relied upon because he could not necessarily accurately predict future changes in economic conditions.  However, this is not something that renders his opinions unsound.  It is not possible to foresee the future with precision, but that is no reason to doubt the validity of Mr Sinnott’s views, which appear from his report to have been reached after careful consideration on the basis of information obtained from the companies, and having made reasonable assumptions.

(4)   Mr Cheng further contended that the independent actuary had failed to indicate whether the policyholders would benefit from the proposed transfer.  However, as I have noted, Mr Sinnott has in fact explained that his projections show that there are benefits to policyholders arising from reduced volatility in both Petitioners’ solvency positions, that AXAHKL policyholders will benefit from an enlarged asset pool, that AXACRIB will be more resilient to future interest rate movements, and that policyholders of both Petitioners can be expected to benefit from improved efficiencies and greater diversification after the transfer.

(5)   Ms Mui suggested that no independent actuarial advice had been provided to policyholders – this is incorrect, as Mr Sinnott is clearly independent of both AXAHKL and AXACRIB.  She also suggested that Mr Sinnott had proceeded on the basis of outdated figures, but, with respect, there is nothing to suggest that this is in fact the case.

(6)   Mr Leung contended that Mr Sinnott had not properly assessed whether or not policyholders reasonable expectations would be adversely affected because he had not been provided with, or asked for, materials provided to policyholders when they were first considering taking up a policy, such as illustrative figures for likely returns in respect of guaranteed and discretionary payments, which would have been prepared by the insurer and provided to the policyholder through a salesperson.  Mr Leung also drew attention to the fact that discretionary dividends had been drastically reduced over the last decade, by a cumulative percentage of some 95%, thus significantly reducing the value of a policy to its holder.  With respect, this criticism, too, is misplaced, for a number of reasons.  First, the discretionary amount under a policy is just that – discretionary.  It is, as Mr Leung acknowledged, not guaranteed.  There is therefore no entitlement to it. Moreover, what the court is required to consider is whether the policyholders’ legitimate and reasonable expectations as to the benefits to which they are entitled under their policy are adversely affected by reason of the proposed transfer under the Scheme.  Quite apart from the fact that there is no entitlement to a particular level of discretionary bonuses or dividends, from the standpoint of a policyholder at the time when the Scheme is being considered, his expectation as to such discretionary payments must, in the light of past history, be a low one.  There is nothing to suggest that any further reduction in discretionary dividends that may occur in future will be as a result of the scheme, rather than extraneous factors such as external economic conditions.  While it is undoubtedly disappointing for policyholders that the return on their investment may be much lower than had been hoped for or expected, this is not something that arises as a consequence of the Scheme, and it cannot therefore affect the decision whether or not the Scheme should be sanctioned.  To the extent that the policyholder may have a claim against his insurer in respect of such matters (whether by a claim for mis‑selling or otherwise), such rights remain in place, subject only to the change of identity of the party potentially liable from AXAHKL to AXACRIB in relation to policies originated by AXAHKL.

(7)   Mr Leung also said that Mr Sinnott did not appear to have considered AXAHKL dividend recommendation reports for 2008, whereas its audited accounts, actuarial valuation reports and financial condition reports for that year had been considered.  This would appear to be so, but I do not see that this affects the validity of Mr Sinnott’s conclusions.  It was also pointed out that dividend reports for 2008 and 2011 were not stated to have been referred to, but again, I do not see that this affects the validity or reliability of Mr Sinnott’s conclusions.

27.   Mr Cheng and Ms Mui also complained that the consent of policyholders to the transfer had not been sought, and that the proposed transfer was therefore a breach of the terms of the existing policies. However, as Kwan J pointed out in Re Winterthur Life, the Ordinance provides a mechanism for the transfer of long term business, by means of a scheme such as that now proposed, notwithstanding that policyholders’ consent is not forthcoming (see paragraphs 21 and 22 of her judgment). Protection for policyholders’ interests is provided by the court’s scrutiny of the scheme, which will not be approved if it is unfair or otherwise inimical to their interests.  As I have explained, that is not the position here.  Thus, the failure to obtain such consent cannot be a basis for refusing to sanction the scheme.  Nor can it give rise to a breach of terms of the policies.

28.   Mr Cheng and Ms Mui argued also that the absence of a provision permitting policyholders from opting out of the Scheme rendered it unfair.  But for the same reasons as explained by Kwan J at paragraphs 34 and 35 of her judgment in Re Winterthur Life, I reject this complaint.  It is not the function of the court to devise the best possible scheme that could be devised.  As the Scheme in this case adequately preserves the position of all existing policyholders, and does not adversely affect their reasonable and legitimate expectations or financial security, it is one which can properly be approved by the court.

29.   Mr Cheng also suggested that there had been insufficient time afforded to policyholders to consider the proposed transfer. However, the time limits specified in the Ordinance for the giving of notice have been complied with, and in fact, more than the required notice has been given.  Thus, this suggestion, too, is not one that can be accepted.

30.   Mr Cheng submitted that any consideration received by AXAHKL in connection with the proposed transfer should be distributed to creditors, then policyholders, in priority to any distribution to AXAHKL’s shareholders. But there is no reason why any part of such consideration should be paid to creditors or policyholders, particularly where (as is the case here) their rights and reasonable expectations are preserved and not affected.

31.   Mr Leung also raised questions as to the adequacy of the consideration being paid by AXACRIB to AXAHKL for the transfer.  However, this is not a matter that concerns policyholders.  The consideration to be paid for the transfer is a matter for discussion and negotiation between the parties to the transfer.  It will be paid out of their own funds, and not funds that are earmarked or reserved for payment to policyholders of the benefits to which they are entitled.  As the independent actuary’s report shows, the financial position of both companies will not be materially affected by the proposed transfer, and the interests of creditors and policyholders are not, therefore, affected.

32.   Mr Cheng and Ms Mui also expressed the view that there were no good reasons for the transfer.  However, as I have mentioned above, the Petitioners have explained the purpose of the transfer and have, in my view, shown that it is put forward in good faith and for sound commercial reasons.

33.   Ms Mui suggested that the provisions of the Ordinance were unsatisfactory, and did not provide adequate protection for policyholders in connection with proposed transfers of long‑term business.  This, however, is a matter that can only be dealt with by legislation and is not something that can affect the court’s deliberations, which must be based on the legislation as it stands.

34.   Mr Leung also made a number of further points (in addition to those I have identified above) in the course of his submissions, as follows:-

(1)   He expressed concern that although it was said that dividend policies to be adopted by the Petitioners after the Scheme is implemented would be unchanged from those previously in place, the effect of the transfer would be to dilute the interests of AXACRIB’s customers, since an additional 98,000 odd policyholders of AXAHKL would now become customers of AXACRIB, and be entitled to look to its assets.  This is, with respect, not a good point. First, it ignores the fact that along with the liabilities under the transferred AXAHKL policies will come the assets of AXAHKL that are held in relation to them, so that although there will be more policyholders, there will also be a larger amount of supporting assets.  Second, and perhaps more importantly, as I have noted in paragraph 26(2) above, with the exception of non‑participating policies (for which there is no discretionary element in respect of dividends), each of the different types of policies issued by each of AXAHKL and AXACRIB will be separately managed, and assets presently allocated to them (which are ring fenced in their hands) will continued to be ring fenced in separate pools after the transfer, and dividend determination policies will continue unaltered.

(2)   He pointed to what he said were discrepancies between information supplied to him, through the Consumer Council, in respect of dividend distributions (both to policyholders and to shareholders) and similar information which he had obtained from AXAHKL’s reports and financial information set out in its Reports and Financial Information supplied to the Insurance Authority (copies of which for a number of financial years were provided by him to the court).  Mr Coleman acknowledged that there were differences between these figures, but pointed out that these were due to the fact that whereas the information supplied to Mr Leung in response to his query through the Council were based on the companies’ audited accounts, which were audited under guidelines set out in International Financial Reporting Standards (“IFRS”) and are focused on earnings, the figures appearing from the information obtained from reports to the Authority were based on accounting and financial information prepared in accordance with the requirements of the Ordinance, which are focused on solvency and deal only with long-term business, and were therefore different from IFRS requirements.  Mr Coleman was also able to demonstrate, by reference to AXAHKL’s audited accounts that one aspect of the difference (in respect of dividends and allocations to policyholders) was due to a restatement in the accounts, and explained that while it was correctly stated in the reports to the Authority that some HK$400 million of retained surplus had been allocated to shareholders in 2008, not all of it had been distributed, thus explaining the difference between this figure in the financial information provided to the Authority and the HK$180 million in dividends recorded as having been paid in the audited accounts.  I accept these explanations.

(3)   He queried why tax losses accrued to AXAHKL were not transferred to AXACRIB for its benefit, along with the policies and other assets supporting them.  However, quite apart from the fact that the amount of the tax losses (some HK$190 million) is relatively small in the overall scheme of things, it seems to me that this point is really no more than an aspect of the complaint or concern about the consideration to be paid for the transfer, which I have already dealt with in paragraph 31 above.

(4)   He also pointed out that AXAHKL had done no new business since 2006, and thus would not derive profits from new business in future, and queried whether this would affect its profitability going forward.  However, as Mr Coleman pointed out, this has been the position for some years already, and there is thus no reason to think that it will happen now.  In any event, it cannot be suggested that it is a change that arises by reason of the transfer.  It is therefore not something that is of relevance for present purposes.

35.   Finally, Mr Leung (and Mr Cheng) suggested that it was important for the court to bear in mind that there were a total of some 640,000 odd policies issued by AXAHKL and AXACRIB that would be affected by the proposed transfer, and that many of the holders of such policies were relying on their policies for their future needs.  They urged the court to regard them as speaking on behalf of all policy holders, and to be slow to sanction the Scheme unless there was adequate information provided in relation to it.  While I readily accept the sincerity of the views and concerns expressed by both of them (and by Ms Mui), it must be observed that of the holders of the 640,000 policies issued b the Petitioners that remain in force, who must number in the hundreds of thousands, only some 3,000 odd (less than 0.5%) were sufficiently concerned about the proposed transfer to make enquiries or voice concerns about it.  Further, only some 21 or 22 policyholders made complaints, of which only 7 or 8 were in writing and indicated an intention to appear to object to the application.  Of those complainants, Mr Cheng, Ms Mui and Mr Leung were the only ones who appeared before me, and thus would appear to be the only ones who remained dissatisfied with the explanations and information provided by the Petitioners.  I have explained above why I do not think that their complaints or concerns are such as to suggest that the Scheme is in any way an unfair or improper one.  On the contrary, the evidence shows that it is one which is well-intentioned and put forward for commercially justifiable reasons, and the views of the independent actuary and of the Authority clearly show that it is one which can be expected to have no adverse impact on the terms of the policies, the reasonable benefit expectations of policyholders, or the financial security of policyholders.  In all of the circumstances, therefore, I am satisfied that the Scheme proposed is a fair one which should be sanctioned by the Court.

36.   I therefore exercise my discretion by sanctioning the Scheme.  As far as costs are concerned, the Petitioners have agreed to bear the costs of the Insurance Authority, such costs to be taxed on the party and party basis if not agreed, and I so order.  I also make an order nisi that there should, as between the Petitioners and Mr Cheng, Ms Mui and Mr Leung, be no order as to costs.  A detailed draft order was submitted by Mr Coleman at the end of the hearing, and I make an order in terms of it, subject only to two minor amendments – reference should be made in the recitals to Mr Cheng, Ms Mui and Mr Leung having appeared at the hearing to make submissions in opposition to the Scheme, and reference should also be made to them in the part of the order dealing with costs, as indicated above.