LI XIAO YUN AND ANOTHER v. CHINA GAS HOLDINGS LTD

CACV 215/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 215 OF 2013

(ON APPEAL FROM HCCL NO. 18 OF 2011)

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J U D G M E N T

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Hon Cheung JA :

I. The appeal

1. This is an appeal from the judgment of Mimmie Chan J who dismissed the plaintiffs’ claim against the defendant seeking, among other things, an order for specific performance by the defendant to allot and issue shares to the plaintiffs pursuant to a share option exercised by the plaintiffs and also damages in lieu of or in addition to specific performance.

II.   Facts of the Case

2.1. The defendant is a company incorporated in Bermuda and listed on the main board of the Hong Kong Stock Exchange. 

2.2.   On 6 February 2003 the defendant adopted a share option scheme for its directors and employees. 

2.3.    The 1^st plaintiff (‘Li’) and the 2^nd plaintiff (‘Xu’)were the executive directors of the defendant.  Until March 2011 they were also the Chairman and Vice-chairman respectively of the defendant.  

2.4.    Between 9 January 2004 and 20 October 2005 the defendant granted to Li share options for 10 million shares and Xu, 95 million shares in the defendant.  

2.5.    On 3 March 2011 the Board of Directors (‘the Board’) of the defendant resolved to remove Li and Xu as its Chairman and Vice-chairman. 

2.6.   On 14 March 2011 the Board further resolved to remove Li and Xu as directors.  However, as Li and Xu could only be removed by members of the defendant, an announcement issued by order of the Board on 16 March 2011 stated that the Board had resolved on 14 March 2011 to convene a special general meeting of the defendant to remove the plaintiffs as directors of the defendant. 

2.7.   On 24 March 2011 the plaintiffs by a firm of Hong Kong solicitors, Anthony Siu & Co. gave notice to the defendant to exercise the share option.  Two crossed cheques for the sum of HK$4,000,000 and HK$7,500,000 being the subscription money by Li for the 10 million shares were sent together with the notice.  On behalf of Xu,two crossed cheques for the sum of HK$63,900,000 and HK$4,000,000 were sent for the subscription of 95 million shares in the defendant.

2.8.    On 29 March 2011 the defendant notified the plaintiffs in writing of the termination of their ‘employment relationship’ and in respect of Xu the termination of his service agreement with the defendant with immediate effect. 

2.9.    On 26 April 2011 at a special general meeting of the defendant, the plaintiffs were removed as directors of the defendant ‘with effect upon the passing of the resolutions’.  

2.10.   The defendant refused to honour the exercise of the option by the plaintiffs.

III.   The defence

3. A number of defences were raised and Mimmie Chan J eventually rejected all but one of them and upheld the defendant’s decision not to honour the share option.  The defence that Mimmie Chan J upheld was in respect of the non-compliance by the plaintiffs of a document entitled ‘Operating Rules For Foreign Exchange Control In Respect Of The Participation By Domestic Individuals In Employee Stockholding, Stock Option And Other Such Plans Of Overseas-Listed Companies’ (‘Circular 78’) issued by the State Administration of Foreign Exchange (‘SAFE’) of the People’s Republic of China (‘PRC’).  Article 1 of Circular 78 states that the Operating Rules set out in Circular 78 were formulated pursuant to regulations such as the PRC Regulations for the Control of Foreign Exchange (‘Regulations’), the Measures for Administration of Individual Foreign Exchange (‘Measures’) and the Detailed Rules for Implementation of Measures for Administration of Individual Foreign Exchange (‘Detailed Rules’).

IV.   Foreign Exchange Control in PRC

1)    The policy

4.1. PRC implements a centralised foreign exchange control policy.  Professor Hu, the defendant’s expert on PRC law, stated this policy stems from the notion that foreign exchange affects the financial balance of the State and needs to be controlled centrally. Professor Hu explained in his report of 20 January 2012 that :

‘ II.

4. …... The policy is crystallized in foreign exchange control laws and regulations requiring all foreign exchange revenue to be sold to the State and all foreign exchange expenditure to comply with State laws and regulations.  China’s foreign exchange control can be divided into control of two specific types of item: current account items and capital account items.  If a domestic resident needs to pay foreign exchange to an overseas payee or receive foreign exchange from an overseas payor in connection with a current account item or capital account item mentioned above under the balance of international payments, he should truthfully declare the same to the State according to law.

5. Capital account items have not been fully deregulated under China’s foreign exchange control regime.  Overseas investments of domestic legal persons are subject to the approval of [SAFE]…...’

4.2.   Current and capital accounts are respectively defined by the Regulations as follows :

‘ Article 52(3) “Current account” means the trading account reflecting goods, services, income and recurrent transfers connected with international receipts and payments.

(4) “Capital account” means the trading account that reflects changes in the level of foreign assets and liabilities arising from international receipts and payments, including capital transfers, direct investment, securities investment, derivatives, loans, etc.’

4.3.   Professor Hu further explained that the Regulations was issued by the State Council and is an administrative statute.  The Measures were formulated by the People’s Bank of China (which is PRC’s central bank) and the Detailed Rules were formulated by SAFE, making both of them departmental regulations.  Circular 78 is an internal regulation of the Detailed Rules.

4.4.   According to Professor Hu, the two departmental regulations and the internal regulation are required to comply with the higher-level legislation, namely, the Regulations.  This is because in PRC, in terms of the formulation of laws, lower-level laws are formulated pursuant to higher-level laws.  In terms of the application of laws, higher-level laws ‘trump’ lower-level laws, newer laws ‘trump’ older laws, and special laws ‘trump’ basic laws.

2)  The Regulations

4.5.  Article 1 states that the Regulations were formulated ‘in order to strengthen foreign exchange control, promote a balance between foreign receipts and payments and promote the healthy development of the national economy’. 

4.6.    Article 4 states that they apply to foreign exchange receipts and payments, and the business activities conducted in foreign exchange by ‘organizations in China’ ‘境內機構’ and ‘individuals in China’ ‘境內個人’ as well as to the foreign exchange receipts and payments, and the business activities conducted in foreign exchange in China by overseas organizations and individuals.

4.7.   Article 52 defines the terms ‘organisation in China’ and ‘individual in China’ as follows :

(1) ‘Organisation in China’ means a state authority, enterprise, public institution, association, military unit, etc. in the People’s Republic of China, with the exception of a diplomatic office in China of a foreign country or a representative office in China of an international organization. 

(2) ‘Individual in China’ means a citizen of China or a foreign national who has resided continuously in the People’s Republic of China for at least one year, other than a foreign diplomat in China or a representative in China of an international organization.

4.8.    Article 8 states :

‘ The circulation of foreign currencies in the People’s Republic of China is prohibited. Additionally, pricing and settlement may not be effected in foreign currencies, unless otherwise provided by the state.’

4.9.    Article 9 states that the foreign exchange receipts of ‘organizations in China’ and ‘individuals in China’ may be ‘repatriated or retained overseas’, but the conditions for repatriation or retention overseas shall be specified by the State Council’s foreign exchange control department based on the international payments position and foreign exchange control requirements.  The article refers to ‘repatriation’ and ‘retention overseas’ of foreign exchange receipts, meaning that the reference is to receipts which are received by the individual outside China.

4.10.   Under Article 17, if an organization or individual in China directly invests abroad or engages in the issuance and/or trading of negotiable securities or derivatives overseas it/he/she shall carry out registration procedures in accordance with the provisions of the State Council’s foreign exchange control department.  If the State requires that approval or record filing procedures be carried out first with the relevant competent departments, such approval or record filing procedures shall be carried out before foreign exchange registration.

3)  The Detailed Rules

4.11.   The Detailed Rules make more detailed provisions for the control of the use and remittance of foreign currency by domestic individuals and overseas individuals in China.  Article 16 provides that ‘direct foreign investment of domestic individuals shall be conducted in accordance with the relevant regulations of the country’, and foreign currency may be purchased after examination and approval by the local foreign exchange administration agency.  Article 16 further states that for ‘domestic individuals and overseas individuals who live within the territory of China habitually’, and those who set up or control companies with a special purpose and gain return on their investment, the involved foreign currency income and expenses must be handled in accordance with the relevant regulations.

4.12.   Article 17 states that domestic individuals may use foreign currency to invest in financial products with fixed income and equities in the overseas market with qualified domestic institutional investors. 

4.13.   Article 18 states :

‘ Domestic individuals participating in foreign exchanges business such as Employee Stock Ownership Plans and Employee Stock Option Plans of companies listed in the overseas market shall submit an application to the foreign exchange administration agency [through] the company [to which he belongs] or domestic agency for approval and engage in the plans after obtaining approval.’

4)  The Measures

4.14.   Article l provides that these Measures are formulated in accordance with the Regulations of the People’s Republic of China on Foreign Exchange Control and the Rules on the Management of Foreign Exchange Sales, Purchases, and Payments and other related laws and regulations with a view to facilitating individual foreign exchange receipts and payments, simplifying business procedures, and standardizing the administration of foreign exchange.

4.15.   Article 2 provides that the individual foreign exchange business is classified into domestic individual foreign exchange business and overseas individual foreign exchange business according to the trading entities as well as into individual foreign exchange business under the current account and individual foreign exchange business under the capital account according to the nature of the transaction.  The individual foreign exchange business shall be administered on the basis of the aforementioned classifications.

4.16.   Article 4 is important in that it provides that the SAFE and its branches/sub-branches (hereinafter referred to as foreign exchange bureaus) shall be responsible for the supervision and administration of domestic and cross-border individual foreign exchange business in accordance with these Measures.

5)   Circular 78

4.17.   Article 1 states that the operating rules in Circular 78 were promulgated ‘in order to regulate exchange control in respect of the participation by domestic individuals in employee stockbroking, stock option and other such plans of Overseas-Listed Companies’. 

4.18.   Article 2 states:

‘ For the purposes of these Operating Rules, the term “Overseas-Listed Company” means companies listed on an overseas stock exchange, and includes companies controlled by PRC capital and companies not controlled by PRC capital; and “Domestic Company” means the Overseas-Listed Company itself, or a parent company, subsidiary or branch of the Overseas-Listed Company located in the PRC.’ (emphasis added)

4.19.   Article 3 states:

‘ The foreign exchange transactions of individuals who participate in the employee stockholding plan of an Overseas-Listed Company shall be conducted according to the following procedures:

(1)  An individual shall select a domestic institution (the “Domestic Agent”) through the Domestic Company to which he/she belongs to centrally handle all foreign exchange control matters on his/her behalf.  The Domestic Agent may be a Domestic Company (provided that the labour union has legal personality), or a financial institution such as a trust and investment company qualified to carry out asset custody business.

(2)  The Domestic Agent shall engage a domestic financial institution qualified to manage foreign exchange assets and to carry out foreign exchange operations for securities transactions (the “Asset Manager”) to purchase and sell the shares designated under the employee stockholding plan on behalf of the individual.

  (3)  The Domestic Agent shall engage an overseas bank qualified to engage in custody business (the “Custody Bank”) to hold on trust all of the overseas assets held by the individual under the employees stockholding plan.’

4.20.  Article 4 states :

‘ The foreign exchange transactions of individuals who participate in the stock option plan of an Overseas-Listed Company shall be conducted according to the following procedures:

(1)  An individual shall entrust the Domestic Company to which he/she belongs or a Domestic Agent specified in item (1) of Article 3 to centrally handle all foreign exchange control matters on his/her behalf.

(2)  The individuals shall collectively entrust a financial institution qualified to carry out securities brokerage business and located in the place where the Overseas-Listed Company is listed (the “Trustee”) or the Trustee designated by the Overseas-Listed Company to handle matters relating to the exercise of options and sales of shares by individuals.  An individual’s instructions for such transactions as exercise of options and sale of shares shall be executed through the Trustee.’

4.21.   Article 9 states :

‘ Individuals may not pay the funds required for an exercise of options directly from abroad, and the source of the domestic funds paid for an exercise of options shall comply with state laws and regulations.’

4.22.   The procedural requirements to be observed on behalf of individuals participating in employee stockholding or stock option schemes are provided for by Article 5 :

‘ An application shall be made annually on behalf of individuals who participate in employee stockholding plans or who exercise their stock options using cash during the exercise period (“Exercise of Options”) by the Domestic Agent, or by the Domestic Company to which the relevant individuals belong, to the State Administration of Foreign Exchange or one of its branches or offices (the “Administration of Foreign Exchange”) for a foreign exchange purchase and payment quota for the employee stockholding or exercise of options.’

Article 5 then sets out the documents required to be submitted for such purpose.

4.23.   Article 13 provides :

‘ Individuals shall strictly comply with the relevant provisions of these Operating Rules when they participate in the employees stockholding and stock option plans of Overseas-Listed Companies and may not purchase other overseas securities by nominally participating in the employee stockholding plan or stock option plan of an Overseas-Listed Company, except as otherwise provided in laws and regulations. If an individual, Domestic Agent, Domestic Company to which the relevant individual belongs, Asset Manager or Domestic Company violates relevant provisions of these Operating Rules, the Administration of Foreign Exchange will impose punishment in accordance with the PRC Regulations for the Control of Foreign Exchange, the Detailed Rules for Implementation of Measures for Administration of Individual Foreign Exchange and other relevant regulations.’

4.24.   Finally, Article 14 provides :

‘ If individuals obtain other equity from an Overseas-Listed Company pursuant to its employee stockholding plans or stock option plans etc, or sell shares in an Overseas-Listed Company obtained through other means, the resulting foreign exchange earnings shall, after deduction of the relevant overseas charges, be repatriated in full, and the Domestic Agent or the Domestic Company to which such individuals belong shall centrally handle the relevant procedures by reference to the relevant provisions hereof.’

V.   The Judge’s decision

5.1. This case is concerned with the exercise of a stock option and not employee’s stockholding plans.  The Judge held that,

‘ 115. In my view, the purpose of Circular 78 has been clearly stated in its Article 1, and in the Regulations. The purpose can also be clearly seen from the text of the Regulations and of the Detailed Rules. There can be no doubt that the purpose of the control prescribed in the Regulations, and in Circular 78 made under the Regulations, is to regulate foreign exchange in China, by requiring organizations and individuals in China to obtain approval and to carry out registration procedures in China and to make disclosure of their interests in foreign exchange dealings and transactions which may involve foreign currency receipts and expenses.

116.   It is also clear from the Detailed Rules and Circular 78 that the purpose of Circular 78 is to regulate domestic individuals’ participation in employee stock ownership and stock option plans of overseas listed companies (“Plans”), and that the mischief aimed at is the misuse by domestic individuals of these Plans to avoid foreign exchange regulation and disclosure and registration requirements, and under the guise of participation in the Plans issued by companies listed outside China, to engage in dealings in negotiable securities denominated in foreign currencies, and in foreign exchange payments and receipts.  The remedy for the mischief as provided under Circular 78 is to require applications to be made, on behalf of domestic individuals participating in the Plans, to SAFE for foreign exchange purchase and payment quota (“Quota”) to be obtained for the exercise of the options under the Plans (Article 17 of the Regulations, Article 18 of the Detailed Rules and Article 5 of Circular 78).  When applying for the Quota, disclosure has to be made of the details of how the Plans are implemented, the source of the renminbi funds used to purchase the shares, the rights and obligations of the participants in the Plans, how the options are allocated under the Plans, the number of employees involved in the Plans, the supporting documents regarding the decision of the overseas listed company to implement the Plans and evidence of a genuine labour relationship between the listed company and the individual participating in the Plan.  Under Article 6 of Circular 78, a designated foreign exchange account has to be opened with a bank in China, and there is control over the receipts of funds including the gains repatriated following the sale of stock by the participating employee, the repatriated dividends, etc.  The approval of SAFE has to be obtained in respect of the location of the foreign exchange account in relation to which the application for Quota is made.’

5.2.    The Judge upheld the defendant’s argument that the plaintiffs as nationals of the PRC are subject to and governed by Circular 78 and that the plaintiffs had failed and refused to comply with the compliance procedures set out in Circular 78 and had violated the same when they purported to exercise their options.  Since performance of the plaintiffs’ options was unlawful, illegal and contrary to public policy in the PRC, the plaintiffs’ alleged rights and interests under the options are unenforceable.

VI.   The defendant’s case

6. The gist of the defendant’s case as to why Circular 78 is engaged is as follows :

1)  By excising the option the plaintiffs would acquire shares and this comes within the ambit of Article 17 of the Regulations, namely, an individual in the PRC directly invests abroad or ‘engages in the issuance and/or trading of negotiable securities or the derivatives overseas’. This mandates the carrying out of the registration procedures.

2) The activities of the plaintiffs also come within Article 18 of the Detailed Rules, namely, domestic individuals participating in foreign exchanges business such as employee stock option plans of companies listed in the overseas market.

3) Article 9 of Circular 78 prohibits a domestic individual from paying funds from overseas directly when he exercises his options.  This means if a domestic individual makes investment overseas or buys shares overseas he must make registration with the foreign exchange administration because it falls within the capital account.  This reason appears only in the evidence of Professor Hu at the hearing below.

VII.   The experts’ agreed view

7. It is important to bear in mind the agreement of Professor Hu and the plaintiffs’ expert, Mr Ma, contained in their joint expert report that :

1)  the foreign exchange transactions of individuals are divided into three categories :

(1) domestic foreign exchange transactions;

(2) cross-border foreign exchange transactions;

(3) overseas foreign exchange transactions; and

2)  SAFE regulates only domestic and cross-border foreign exchange transactions of individuals and it does not regulate overseas foreign exchange transactions of individuals.

VIII.  My view

1)   The fundamental question: Application of the Regulations

8.1. On the basis of the experts’ agreement, the fundamental question to be asked must be whether on the facts of this case, the transaction in question is in the nature of a domestic or a cross-border foreign exchange transaction.  To that the Judge did not make any finding.  As can be seen from the judgment below, the Judge focused her attention on the application of Circular 78 which by its nature, operates on the basis that there is already in existence foreign exchange transactions (either domestically or cross-border). Although Article 17 of the Regulations was mentioned in the judgment, there was no finding that the transaction comes within its ambit because it involves an individual in China who ‘directly invests abroad or engages in the issuance and/or trading of negotiable securities overseas.’

8.2.    It appeared that the defendant is relying on the last limb of Article 17, namely, ‘issuance and/or trading of negotiable securities overseas’.  This is not accepted by Mr Ma.   In the first place, the plaintiffs were not involved with the issuance of the shares.  They merely took up the share option.  Secondly, by taking up the option, they were not engaged in trading of the securities.  Further this ignores the agreement of the experts that SAFE does not regulate ‘overseas foreign exchange transactions of individuals’ which is specifically excluded by Article 4 of the Measures.  Although it was accepted that the relevant part of the Measures were referred to the Judge, there was a dispute whether the Measures itself was produced to the court.  According to the lower court record it was produced on Day 6 of the trial during the cross-examination of Mr Ma.

8.3.  The plaintiffs in their reply at paragraph 49(4) specifically pleaded that if an employee share option scheme itself does not require cross border movement of funds, eg where a beneficiary is not an employee of a domestic company and the funds are paid in full outside the PRC, such scenario is not governed by SAFE and Circular 78 does not apply.

8.4.    In the present case, in respect of funds used by the plaintiffs for the exercise of the share option :

(1) the plaintiffs had paid for the shares in Hong Kong using Hong Kong dollars (‘HK$’);

(2) they did not use funds in the PRC, but in Hong Kong; and

(3) the payment process did not involve conversion of the PRC currency of Renminbi (‘RMB’) to HK$ in the PRC, or remittance of any converted sum from the PRC to Hong Kong, or remittance of RMB or HK$ from the PRC to Hong Kong by the plaintiffs.

8.5.   Mr Ma in the joint opinion has specifically stated that since the two plaintiffs paid for the exercise of the option with funds that they had lawfully obtained overseas, this payment did not involve domestic or cross-border foreign exchange transactions of individuals and is not regulated by SAFE.  Professor Hu in the joint report did not address this point and merely stated that he would express his opinion during the hearing below.  This really was not a satisfactory way of addressing the disputes.  The difference in views ought to have been identified well in advance of the hearing or directions should be sought as to the filing of a further report.  As it turned out, Professor Hu expressed his further opinions by way of oral evidence at the hearing after the Judge refused to allow the defendant to adduce a further report by Professor Hu during the trial.

8.6.   In my view the defendant’s expert had not really answered the crucial question.  If, as Professor Hu had said, the centralised foreign exchange control policy stems from the notion that foreign exchange affects the financial balance of the PRC and needs to be controlled centrally, then since the funds used for the exercise of the share option were not sourced from the PRC and were already lawfully located outside, I cannot see how this will affect the financial balance either of the current or capital accounts of PRC.

8.7.   One can see the absurdity of Professor Hu’s view by this example which was canvassed in the appeal.  Under Article 52(2) of Regulations, an individual in China also means a foreign national who has resided continuously in the PRC for at least one year.  If that foreign national before taking up residence in China, already has funds outside China and while he is in China uses such funds to exercise a share option plan, how would this adversely affect the balance of PRC’s domestic currency and its foreign currencies?  It has not been shown that the Regulations has such a wide extra territorial effect either by itself or by reference to other statutes.

8.8.   Mr Westbrook SC and Mr John Hui for the defendant argued that Article 4 of the Regulations does not support the plaintiffs’ reading of that article (i.e. since the transaction does not involve the conversion of RMB to foreign currency or the cross-border remittance of foreign currency then the transaction is not subject to the foreign exchange control) because :

(1) the wording of Article 4 does not suggest that it is only applicable to the two types of activities contended for by the plaintiffs.  It does not specify whether the regulated activities are only limited to conversion of RMB to foreign currency or cross-border remittance of foreign currency. 

(2) not all activities regulated by Article 17 of the Regulations involve a cross-border element. 

8.9.   The short answer to this point is simply that the experts agreed that SAFE regulates only domestic and cross-border foreign exchange transactions of individuals and does not regulate overseas foreign exchange transactions of individuals. 

8.10.  Part VII of the Regulations deals with legal liabilities in breach of the foreign exchange control.  Mr. Westbrook was unable to identify which provision under Part VII deals with the situation of payment by way of funds already outside China.

8.11.   It is for the defendant to establish that the transaction in question was a domestic or cross-border foreign exchange transaction.  In my view it has failed to do and I am unable to accept that this particular transaction falls within the ambit of either a domestic or cross-border foreign exchange transaction within the Regulations.

2)  Application of the Detailed Rules

8.12.   Likewise, the same arguments apply to Article 18 of the Detailed Rules.  In section C of paragraph 5 of the joint report, Mr Ma’s response to Professor Hu’s view on Article 18 is that :

‘ When Article 18 of the [Detailed Rules] read in the light of the principle set forth in the above-mentioned Article 4 [the Measures], the correct interpretation of Article 18 should be that if a domestic individual’s participation in an employee stockholding plans or stock option plan of an overseas-listed company falls under the rubric of “domestic or cross-border foreign exchange transactions of individuals”, such individual should submit an application to the foreign exchange administration agency with the company or domestic agent for approval and engage in the plan after obtaining approval. If it falls under rubric of “overseas foreign exchange transactions of individuals”, it is not regulated by the Administration of Foreign Exchange. Therefore, the conclusion by the Defendant’s Expert that “domestic individuals participating in the employee stockholding plan or stock option plan of a company listed overseas always need to apply for foreign exchange approval and registration” is wrong.’

8.13.   Again Professor Hu had not really answered this point.  I do not regard Article 18 of the Detailed Rules is applicable.

3)  Application of Circular 78

(1) Article 9

8.14.   Professor Hu said that Article 18 of the Detailed Rules provides for the principle but is silent on the specific operational procedure for foreign exchange regulations.  The purpose of Circular 78 is to flesh out Article 18 of the Detailed Rules into a workable procedure.  Professor Hu further stated that :

‘ If the Chinese workers and management staff of overseas-listed companies who accept a stockholding or stock option plan of the overseas-listed companies were not subject to Circular 78, the foreign exchange receipts and payments of that group of domestic individuals would fall outside the control of China’s foreign exchange legislation. This would defeat the original purpose of the centralized foreign exchange control policy of the People’s Republic of China.’

8.15.   But as Professor Hu had already accepted that the payment of the funds in this case did not originate in PRC, one again is at a loss why such a payment would defeat the original purpose of the centralised foreign exchange control policy of PRC? Professor Hu relied on Article 9 of Circular 78.  In my view, to rely on Article 9 begs the question whether this particular transaction is a domestic or cross-border foreign exchange transaction.

8.16.   To construe Article 9 and the other articles relied upon by the defendant in Circular 78 in the way as contended by the defendant would be to extend the SAFE’s jurisdiction to regulate the very matter, namely, overseas foreign exchange transactions which Article 4 of the Measures had excluded.  In the context of the hierarchy of rules and regulations in PRC, Circular 78 which is lower in rank than the Measures  cannot have a wider coverage which the Measures does not give.

8.17.   Furthermore, the uncontradicted evidence of Mr Ma is that registering the option scheme in accordance with Circular 78 would give the participants of the scheme the benefit of a foreign exchange quota.  But if the transaction in question is not even within the ambit of Circular 78 this would unjustifiably give the participants the benefit of a quota.  The Judge had overlooked this point.

8.18.   If the purposive approach in statutory interpretation is to be adopted (which is accepted by the parties), then Article 9 of Circular 78 must be read to prohibit funds originating from the PRC being directly paid by the domestic individual overseas in breach of the foreign exchange control mechanism, or individuals selling overseas foreign exchange inside the PRC to exercise stock options of PRC companies listed overseas.

(2) The plaintiffs’ argument

8.19.  Mr Chang SC (together with Mr Michael Liu and Ms Teresa Wu) for the plaintiffs argued that Circular 78 was, in any event, not engaged because :

i)  the defendant was not a domestic company for the purpose of Circular 78; and

ii) even if the defendant was a domestic company, the plaintiffs did not have the requisite ‘employer : employee/labour’ relationship with the defendant. 

8.20.   The plaintiffs’ argument proceeded from the agreement of the two experts that the term ‘domestic individual’ referred to in Circular 78 means natural persons who have a labour relationship with a domestic company. 

(3) Domestic company

8.21.   In order to address the issue whether the defendant is a domestic company, one begins with Article 2 of the Circular 78 which defines an overseas listed company as a company listed on an overseas stock exchange (‘OLC’).  It does not say the OLC must be incorporated in China.  The Judge held that the definition of a domestic company in Article 2 which includes, among other things, the OLC itself, is an enlarging definition. 

8.22.   The Judge held that :

‘ 124. A purposive approach in statutory interpretation would clearly support the construction that the definition of an Overseas-Listed Company extends to and includes a company incorporated and listed overseas or outside China, and the construction that Circular 78 extends to domestic individuals’ participation in the employee stockholding and stock option plans of such a company. The purpose of the Regulations and of Circular 78 cannot be fully accomplished without their application to option schemes and stockholding plans issued by companies incorporated and listed outside China to domestic individuals in China. If the aim of the Regulations is to require disclosure of domestic individuals’ participation in the Plans and their dealings and transactions in shares, securities and foreign exchange receipts under the Plans, why should a distinction be made between a company which is registered in China but listed overseas, and a company which is incorporated and listed outside China?’

8.23.   Professor Hu argued that the OLC is not a company registered in the PRC by referring to, among other things, another document entitled ‘Notice on Issues Relating to Further Improvement of Exchange Control in Overseas Listings [ref. Hu Fa [2002] No. 77] dated 5 August 2002’ (‘Circular 77’), where SAFE required H-share listed companies and domestic shareholders of Red-chip 1isted companies to file an application of foreign exchange registration of listing outside China to a foreign exchange administration office after 30 days of approval of capital issue and listing outside China by China Securities Regulatory Commission.  A red-chip company is a company incorporated overseas but funded by Chinese capital.  An H-share company is a company incorporated in the PRC but listed overseas.  In other words, according to Professor Hu, domestic investors holding equity in an overseas-listed company, regardless of whether it is controlled or not controlled by PRC capital and whether the listed company is incorporated in the PRC or overseas, are required to carry out foreign exchange registration with the SAFE.

8.24.   Professor Hu’s reference to Circular 77 and other circulars seemed to suggest that OLC is part of a unified concept in the formulation of statutes by SAFE, namely, they include both PRC-incorporated companies listed overseas and overseas-incorporated companies listed overseas.

8.25.   Mr Ma’s view is that there is no such thing as a unified concept with respect to OLC.  Circular 77 and other circulars involve only specific matters of specific overseas companies and they do not allow the conclusion that the conduct of an OLC that involves China’s foreign exchange control regime is subject to China’s foreign exchange laws and statutes even if the company is incorporated overseas.  Mr Ma stated that, first Circular 78 does define the term OLC and second, Circular 77 does not regulate overseas-incorporated and listed companies themselves.  Rather, it regulates the following: SAFE requires PRC-incorporated companies that are listed overseas [e.g. H-share listed companies] to repatriate their offering proceeds within 30 days (Article 3 of Circular 77) because they are incorporated in the PRC and governed by PRC law.  To this end, Circular 77 requires these companies to carry out the relevant registration procedures themselves.  Red-chip listed companies are not subject to control by SAFE because they are incorporated outside the PRC.  SAFE only required the ‘domestic shareholders’ of these companies to repatriate their foreign exchange funds obtained from reductions of their shareholdings in the listed companies or from asset [or equity] sales by the listed companies (Article 4 of Circular 77).  To this end, Circular 77 requires the ‘domestic shareholders’ of these companies to carry out the relevant foreign exchange registration procedures. This shows that the entities controlled by SAFE under Circular 77 are limited to companies incorporated in the PRC.  When it comes to red-chip listed companies, it is not these companies (but rather their domestic shareholders) that are directly regulated by SAFE.

8.26.   Mr Ma’s reasons why the OLC should be a domestic incorporated company are set out in his part of the joint report as follows :

‘ Section [A]

1.  Article 2 of Circular 78 provides that the term “domestic company” includes “the overseas-listed company itself”.  The “overseas-listed company” as referred to here should be an overseas-listed company incorporated in the PRC, because the first condition to be satisfied by an “overseas-listed company” as mentioned in the said article is that it be a company incorporated “in the PRC”, e.g. an H-share or N-share listed company.  Only then can an “overseas-listed company” be called a “domestic company” and fit the context.

2.  The definition of “domestic company” in Circular 78 comprises two parts, namely “the overseas-listed company itself’ or “a parent company, subsidiary or branch thereof that is located in the PRC”.  Please note that the first half of the definition stresses “itself”, whereas the second half emphasizes “located in the PRC”.  The reasonable explanation therefor is that the definition emphasizes the domestic factor; otherwise, there would be no reason to exclude parent companies, subsidiaries and branches that are located outside the PRC.  The actual meaning of the word “itself” in the first half of the definition is that in the case of an overseas-listed company incorporated in the PRC, the “domestic company” is the “overseas-listed company” itself, whereas in the case of an overseas-listed company incorporated overseas, the “domestic company” is a parent company, subsidiary or branch thereof that is located in the PRC.

3.  Article 5 of Circular 78 specifies the documents to be submitted to the Administration of Foreign Exchange when applying for a foreign exchange purchase and payment quota in connection with an employee stock option plan.  These documents include “a written undertaking that the individuals participating in the plan truly have a labour relationship with the domestic company”.  According to our understanding, the Administration of Foreign Exchange accepts only written undertakings of the true existence of a labour relationship between domestic individuals and companies incorporated in the PRC.

4.  According to Article 4 of Circular 78, the registration procedures with the Administration of Foreign Exchange should be carried out by the domestic company or its domestic agent. According to our experience, the Administration of Foreign Exchange does not accept Circular 78 applications submitted directly by listed companies incorporated overseas.  Therefore, the term “domestic companies” as defined in Circular 78 does not include overseas-listed companies incorporated overseas.’

8.27.   In my view Mr Ma is correct.  Circular 77 does not assist the defendant because it does not seek to control all the foreign exchange activities of a red-chip company (which is a company incorporated overseas) but that of its domestic shareholders.  It is only the domestic shareholders of the red-chip company who are required to repatriate their foreign exchange funds obtained from the sale of their shareholdings in the red-chip company. Further, it is only when the red-chip company puts the funds that it had raised abroad back into China that it is required to go through the formalities according to the relevant regulations on foreign exchange administration (Article 6).  This clearly refutes the point that there is any unified concept of foreign exchange control in relation to overseas listed companies irrespective of whether they are incorporated domestically or overseas. 

8.28.   Proceeding on this basis, the views of Mr Ma made perfect sense.  The definition of a domestic company under Circular 78 advances his interpretation rather than contradicts it because in the case of an OLC incorporated in the PRC, the domestic company is the OLC itself, whereas in a case of an OLC incorporated overseas, the domestic company is a parent company, subsidiary or branch thereof that is located in the PRC.  This is more clearly so when under Circular 78, the domestic company is required to perform substantive tasks in respect of the formalities dealing with foreign exchange control.  These tasks cannot be performed by a domestic company which exists only by way of a legal definition.  The absurdity of construing an OLC purely as any overseas listed company is apparent.  

8.29.   The argument is further strengthened in this case because the second part of Article 11 provides that where the option plan was already in place before the promulgation of Circular 78, the domestic company to which the plaintiffs belong or the domestic agent shall carry out the relevant procedures with the office of SAFE of the place where it is located within three months from the date of promulgation of Circular 78. If the domestic company only exists by reason of the legal definition, then one asks which SAFE office should handle the procedure?  While domestic agent is referred to, it must be appointed through the domestic company.

8.30.   The mere existence of subsidiaries of the defendant in China does not solve the issue because under Circular 78 a domestic company must be one with which the plaintiffs have a labour relationship.  There is no link between the plaintiffs and any subsidiaries in the PRC.

8.31.   Mr Ma had identified the actual operations of the registration procedure in Circular 78 in that, specifically, SAFE does not accept Circular 78 applications submitted directly by listed companies incorporated overseas.  Professor Hu has not addressed these practical considerations.

8.32.   The Judge further held that it is the domestic individual who has to entrust the foreign exchange control matters to the domestic company or domestic agent.  In my view, even assuming Circular 78 applies and the defendant was a domestic company, Article 11 imposes an obligation in mandatory terms on the domestic company to which the plaintiffs belong to carry out the relevant registration procedure.  This obligation has not been expressed to be predicated on the domestic company having first been entrusted to do so. 

(4) Labour relationship

8.33.   Mr Ma further rejected Professor Hu’s argument that the decisive factor in determining the application of Circular 78 is the status of being a domestic individual.  This is  because, according to Mr Ma, the determining factors are :

i) domestic company;

ii) domestic individual;

iii) the existence of a labour relationship between the domestic individual and the domestic company.

8.34.   There were arguments on the exact meaning of labour relationship which I do not need to go into.  In my view it is artificial to the extreme to say that a domestic company which exists only by way of legal definition has nonetheless a labour relationship with the plaintiffs. 

(5)  The defendant cannot take advantage of its own wrong

8.35.   There is uncontradicted evidence in this case that none of the other directors with similar situations to the plaintiffs (all PRC passports holders and PRC nationals) had ever made the applications themselves.  As a matter of fact the defendant had never made the applications for them when they exercised their share option.  Seen in this light, the plaintiffs have a strong case that the defendant is not permitted to take advantage of its own wrong and that there is an implied obligation to co-operate on the part of the defendant in order to fulfill the compliance by the plaintiffs under clause 15.07 of the rules of the option scheme, namely, the grantee of the options shall be responsible for obtaining any governmental or other official consent or approval that may be required by any country or jurisdiction in order to permit the grant or exercise of the option.

IX.   Challenge on finding of facts

9.1. Mr Westbrook argued that the foreign law issue is one of fact although of a peculiar kind.  He urged this Court not to disturb the finding by the Judge because the Judge had fully considered the various regulations and rules and the views of the experts before coming to a view in favour of the defendant.  

9.2.    I am of the view that this is a case where this Court should intervene because of the errors that I have identified in the earlier parts of the judgment. 

X.   Other issues

10.1.    There were other arguments raised such as penalty and criminal sanction.  It is not necessary for me to address all these issues in the light of my view on the non-applicability of Circular 78.

10.2.   I further agreed with Kwan JA’s judgment on the meaning of clause 8(g) of the option scheme.

XI.   Conclusion

11. Accordingly, the plaintiffs’ appeal is allowed and there shall be an order that the defendant is to pay HK$25,005,057.24 and HK$254,286,030.20 to the 1^st and 2^nd plaintiffs respectively as agreed damages.

XII.  Costs

12. The parties are required to lodge written submissions on costs within 14 days.

Hon Yuen JA :

13. I agree with the judgments of Cheung JA and Kwan JA.

Hon Kwan JA :

14. I agree with Cheung JA that the plaintiffs’ appeal should be allowed for the reasons given in his judgment.  I will deal with one of the matters raised by the defendant in the respondent’s notice seeking to support the dismissal of the plaintiffs’ claim on the additional ground based on the fourth limb of clause 8(g) of the Rules of the Scheme (‘the Rules’).  It was contended by the defendant on appeal that the Judge had erroneously dismissed the defendant’s defence on the fourth limb on the basis that it has never been pleaded in the Re-amended Defence.

15. I will first set out the relevant provisions of clause 8.  I have numbered the four limbs in sub-clause (g) for easy reference:

‘ 8. LAPSE OF OPTIONS

An Option shall lapse automatically and terminate immediately (to the extent not already exercised) upon the earliest of:-

…

(g) [i] the date on which the Grantee ceases to be an Eligible Person by reason of summary dismissal for misconduct or other breach of the terms of his employment or other contract constituting him as an Eligible Person, or

[ii] appears either to be unable to pay or to have no reasonable prospect of being able to pay his debts or has become insolvent or has made arrangement or composition with his creditors generally, or

[iii] has been convicted of any criminal offence involving his or her integrity or honesty or

[iv] (if so determined by the Board) on any other ground on which an employer would be entitled to terminate his or her employment at common law or pursuant to any applicable laws or under the Grantee’s service contract with the Company or the relevant Subsidiary.

A resolution of the Board or the board of directors of the relevant Subsidiary to the effect that the employment or other relevant contract of a Grantee has or has not been terminated on one or more of the grounds specified in this Clause 8(g) shall be conclusive and binding on the Grantee;’

16. The Judge rejected the defence based on the first limb of clause 8(g).  She held that the plaintiffs did not cease to be Eligible Persons on 3 March 2011 by reason of being summarily removed as Chairman and Vice Chairman of the defendant, as the plaintiffs became Eligible Persons by virtue of their appointment as directors and not in their capacity as Chairman or Vice Chairman.  The plaintiffs were not removed as directors until the shareholders’ resolution was passed at the special general meeting of the defendant on 26 April 2011.  The board meeting on 14 March 2011 merely resolved to convene a special general meeting of the defendant to remove the plaintiffs as directors.  Hence, at the date of the exercise of their options on 24 March 2011, the plaintiffs had not ceased to be Eligible Persons by reason of summary dismissal for misconduct or other breach of the terms of their employment or other contract constituting them as Eligible Persons.  There is no challenge to the Judge’s rejection of the reliance on the first limb.

17. The defendant contended before the Judge and before us that it is entitled to rely on the fourth limb, in that the defendant ‘would be entitled’ to terminate the plaintiffs’ employment at common law or pursuant to any applicable laws or under the plaintiffs’ service contracts by 3 March or at the latest by 14 March, irrespective of when their service contracts or their appointment as directors were actually terminated.  The Judge rejected the reliance on the fourth limb, mainly on the basis that it has never been pleaded, and it would run contrary to the well recognised purposes of pleadings if the defendant were to be permitted to rely on this defence.

18. The relevant parts of the Re-amended Defence read as follows:

‘ IV. THE PLAINTIFFS’ OPTIONS HAD LAPSED

(A)  Termination of Employment Relationship with the Plaintiffs

…

30.  Although there were other allegations of misconduct and breach of duties made against the Plaintiffs at the 3.3.2011 Board Meeting, the majority of the Board considered that the Plaintiff’s [sic] conduct pleaded above amounted to serious misconduct and breach of duties, entitling the Board to summarily remove them from their offices.

31.  It was primarily for this reason that the Board, by majority vote, resolved to summarily remove the Plaintiffs from their respective offices as Chairman and Vice Chairman of the Defendant during the 3.3.2011 Board Meeting (the “3.3.2011 Board Resolutions”).

32.  Subsequently, in the Board’s meeting on 14 March 2011 (the “14.3.2011 Board Meeting”), the Board passed a board resolution to convene a special general meeting (“SGM”) to remove the Plaintiffs as directors of the Defendant (the “14.3.2011 Board Resolutions”).

33.  On 29 March 2011, the Defendant, in order to make it clear that it no longer had any employment relationship with the Plaintiffs since 3 March 2011, notified the Plaintiffs that their employment relationships with the Defendant had been terminated with immediate effect.

…

35.  On 26 April 2011, the Plaintiffs were duly removed as directors of the Defendant pursuant to an ordinary resolution passed by the Defendant at the SGM (the “26.4.2011 Shareholders’ Resolutions”).

…

(B)  The Plaintiffs Ceased to Be Eligible Persons After 3 March 2011

…

38.  By reason of the matters pleaded above, the Defendant avers that as at 3 March 2011:

(a)  The Plaintiffs were no longer the Chairman and Vice-chairman of the Defendant respectively;

(b)  The respective employment relationship between the Plaintiffs and the Defendant as Chairman and Vice-chairman had been terminated with immediate effect;

(c)  As such, the Plaintiffs were no longer Eligible Persons as defined in Clause 1.01 of the Rules of the Scheme.

39.  Pursuant to Clause 8(g) of the Rules of the Scheme, the Plaintiffs’ Options lapsed automatically and terminated immediately (without any of them being exercised) on 3 March 2011, as the Plaintiffs ceased to be Eligible Persons as from that date by reason of summary dismissal for misconduct or other breach of the terms of their respective employment or contract constituting them as Eligible Persons.

40.  Further or alternatively, if, which is denied, it is found that the Plaintiffs became Eligible Persons under the Rules of the Scheme by reason of their positions as directors of the Defendant, the Defendant avers that the Plaintiffs nevertheless ceased to become Eligible Persons as from 3 March 2011, since they have been summary [sic] dismissed by reason of their breach of the terms of their employment with the Defendant constituting them as the directors of the Defendant.’

19. Mr Westbrook, SC contended that the Judge was wrong to reject reliance on the fourth limb on a pleading ground.  He submitted that all the material facts were adequately pleaded.  The Board’s entitlement to dismiss the plaintiffs summarily was expressly pleaded in paragraph 30. Besides, the averment in paragraphs 31 and 32 that the Board summarily dismissed the plaintiffs from their offices on 3 March 2011 and resolved on 14 March to remove them as directors must have embraced the averment that the Board was entitled to dismiss the plaintiffs on the dates as pleaded.  Hence, paragraphs 30 to 32, read with paragraphs 39 to 40, adequately pleaded the point that the plaintiffs’ share options had lapsed pursuant to clause 8(g) because of the Board’s entitlement to terminate.

20. Alternatively, if we should be of the view that this point was not adequately pleaded or properly raised at trial, Mr Westbrook invited us to allow the defendant to rely on this point on the principles in Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356 at 369A to C, on the basis that all the relevant evidence was fully before the court and there is no reasonable possibility that the state of the evidence relevant to the point would have been materially more favourable to the plaintiffs if the point had been raised properly at the trial.

21. I do not agree with Mr Westbrook that the material facts required to raise a defence that the share options had lapsed on the basis of the fourth limb in clause 8(g) were pleaded.  It is clear from the composition of the pleading that the only ground relied on in support of the contention that the options had lapsed is the first limb in clause 8(g) and no other, namely, that the plaintiffs had ceased to be Eligible Persons before they purported to exercise their options.  The mere fact that the word ‘entitling’ was used in paragraph 30 could not be regarded as a reference to the fourth limb, which is a distinct and separate ground on which an option shall lapse, and did not feature at all in the pleading.  As for the contention that actual dismissal must have embraced the notion that the defendant was entitled to dismiss, I do not think this would assist the defendant.  The fact remains there are two separate limbs and if the defendant should wish to rely on each of them to say that the options had lapsed, the material facts in support of each must be pleaded and not sought to be inferred from the pleading.

22. I reject also the submission that this is a proper case to allow the fourth limb in clause 8(g) to be raised on appeal notwithstanding it has not been pleaded or properly raised at the trial, by invoking the Flywin principle.  The fourth limb provides that the entitlement to terminate has to be ‘determined by the Board’.  If reliance on the fourth limb had been pleaded, the plaintiffs might take issue whether there was any such determination by the Board as envisaged in the provision or they might challenge the ground or grounds on which the Board had made any such determination.  One cannot say there is no reasonable possibility that the state of the evidence relevant to the fourth limb would have been materially more favourable to the plaintiffs if the point had been raised properly at the trial.

23. For the above reasons, I reject the contention that the Judge was in error in dismissing the defence based on the fourth limb.