Bank wins again after investor's unsuccessful appeal in mis-selling case

The Hong Kong Court of Appeal has dismissed an appeal in DBS Bank (Hong Kong Limited) v Sit Pan Jit (CACV 91/2015), a recent case dealing with mis-selling of financial products by a bank.

The Court of Appeal upheld the first instance decision, where DBS Bank (Hong Kong) Limited (DBS) succeeded in its monetary claim against Sit Pan Jit (Sit); and Sit's counter-claim on the basis of purported mis-selling and misrepresentation was dismissed. This is consistent with the other recent mis-selling cases which have all been in favour of the banks.

The appeal largely focused on the findings of fact made by the first instance judge, and to what standard the Court of Appeal had to be satisfied in order to disturb those findings. The Court of Appeal emphatically affirmed the well-settled principle that, subject to one small exception, findings of fact could only be disturbed if they were shown to be plainly wrong. Accordingly, in the absence of any demonstration of palpable error by the trial judge, the appeal was dismissed. The full decision can be found here.

Given the factual nature of the appeal, banks should be cautious about relying on this decision as a confirmation of the trend in favour of the banks in mis-selling cases. In fact, the Court of Appeal, while not making any findings on this issue, found some force in the appellant's submissions challenging the contractual estoppel defence relied upon by DBS.  In addition, recent regulatory changes implemented by the Securities and Futures Commission (SFC) to enhance investor protection are set to significantly change the dynamics between investors and banks.

Background

The first instance facts and decision are summarised in detail in our e-bulletin of 29 May 2015. In short:

• Sit opened a private banking account with DBS in 2004, and their relationship was governed by a series of contractual documents.
• DBS extended credit facilities to Sit to purchase certain investment products (equity linked notes (ELNs)) which, following adverse market conditions, dropped significantly in value.
• DBS sought additional security or payment to reduce Sit's indebtedness.
• On the failure to provide payment, DBS commenced proceedings to recover the outstanding amount.
• Sit defended DBS' claim and counterclaimed for damages on the basis that DBS had mis-sold investment products, made misrepresentations and otherwise breached the duties owed to Sit as a client.
• The court dismissed Sit's counterclaims and granted judgment in favour of DBS of approximately $3.43 million.
• As part of its decision, the court found that none but one of the representations alleged by Sit had been made. In relation to the sole representation which Sit established (6th Representation), which the court found had only been made in part, it was decided as matter of fact that Sit had not been induced to act on that representation, and therefore it was unnecessary to determine whether the 6th Representation was misleading or deceptive.

Sit raised 20 grounds of appeal. However, most of these were preconditioned on a finding that misrepresentation had been made. Accordingly, the grounds of appeal which challenged the findings of fact as to the 6th Representation – that only part of it had actually been made, and that in any event it had not been relied upon by Sit, were wholly determinative of the appeal.

Decision

Sit's case at the first instance, as to the 6th Representation, was dismissed on the specific facts of the case, and largely due to Sit's poor credibility as a witness.

The 6th Representation that Sit asserted had been made was that investing in ELNs was "safe, conservative and traditional", "less risky than mutual funds", and that the ELNs had been "tailor made" for Sit. The first instance judge found that the statement that the ELNs had been "tailor made" for Sit had been made (but that the other parts of the 6th Representation had not been made). However, the first instance judge found that no reasonable customer in Sit's position would have understood that the ELNs were truly tailor made.  Rather, the reasonable interpretation of "tailor made" was that the ELNs had been hand-picked by DBS' relationship manager for Sit. Accordingly, it was found that the words were not misleading or deceptive, and the misrepresentation case in relation to the 6th Representation was dismissed.

As the Court of Appeal observed, the general principle is that an appellate court will disturb a finding of fact made by a trial judge only if the appellant can demonstrate that it is plainly wrong.

However, Sit argued that in this instance that the plainly wrong test did not apply, on two grounds:

1. the first instance judge had misdirected herself in law regarding the correct approach as to the evidence, with regards to Sit's credibility as a witness, and that error of law should allow the Court of Appeal to reconsider the underlying findings of fact; and
2. the “plainly wrong” test does not apply to challenges against inferences drawn from primary facts.

Sit's Credibility

As to the first argument, while it was accepted that the judge, after making adverse findings in relation to Sit's credibility, could approach his evidence with caution, Sit asserted that his evidence should have still been considered in light of contemporaneous documents which supported that evidence. In particular, Sit relied on the fact that DBS presented no evidence, and did not call the alleged individual representor (or cross-examine Sit) in relation to the 6th Representation.

In respect of this argument, the Court of Appeal rejected that any error of law had occurred, and accepted the findings of the trial judge on credibility. The Court of Appeal found that in fact the judge had considered all the facts and contemporaneous documents, contrary to what had been asserted. Further, it was accepted that DBS had legitimate reasons not to call the representor or cross-examine Sit (as the findings on inducement were based on an objective appraisal of the words used, not Sit's understanding of them).

Plainly Wrong Test and Inferences

As to the second argument, Sit argued that the 'plainly wrong' test did not apply to inferences drawn from findings of fact. The challenged inference was the inference drawn by the first instance judge that Sit could not have interpreted the representation that the ELNs were "tailor made" literally, and therefore that he could not have been induced into the transaction on this basis.

The Court of Appeal rejected this argument and said that the only instance in which the 'plainly wrong' test did not apply was when a finding of fact was based purely on inference, without reference to any established factual evidence.

That was not the case in this instance, as the inference had been drawn from the facts. Applying the plainly wrong test to the challenged findings of fact, the Court rejected Sit's appeal on the factual findings made as to the 6th Representation.

Other Grounds

As a result of the finding that the 6th Representation was not made in full as alleged, and that the relevant part which had been made was not misleading or deceptive, the rest of the appeal fell away. However, out of deference to the submissions of the appellant on the other grounds, the Court did briefly mention the submissions made in relation to contractual estoppel.  

At first instance, the Court held that contractual estoppel is part of the laws of Hong Kong and it was available to DBS as a defence to a claim brought under section 108 of the Securities and Futures Ordinance on misrepresentation (which Sit argued had been breached by the alleged misrepresentations). 

The appellant challenged that finding on a number of grounds, asserting that the contractual estoppel asserted was not good law, and that in any event on a proper construction of section 108, such section could not be excluded by contract.

The Court of Appeal observed that there was some force in these submissions. However, as it did not overturn the first instance finding on the 6th Representation, it refrained from expressing a view on the issue.

Comment

As with the first instance case, the outcome of this appeal will be welcome news to private banks, as it continues the recent trend of banks successfully defending claims for mis-selling and misrepresentation by their customers. However, caution must be exercised as the outcome of the appeal depended largely on the specific facts of the case.

In addition, the Court of Appeal's observations in relation to the defence of contractual estoppel in relation to section 108 of the SFO will likely prompt other parties to challenge that defence as it relates to mis-selling or misrepresentation cases in the future.

Further, this decision comes at a time in which the relationship between banks and investors is set to shift significantly (to the benefit of investors) due to the SFC's new professional investor regime which came into effect on 25 March 2016, and new client agreement requirements which come into effect on 9 June 2017.  Further details of these reforms are discussed in our bulletins of 30 September 2014, 21 December 2015 and 22 March 2016.

In particular, the new client agreement will increase investor protections, with a mandatory new clause to be inserted into all client agreements which will compel banks to consider the "suitability" of any investments recommended to clients in light of their financial situation, investment experience and investment objectives. Further, the new clause contains a non-derogation component which means that any contractual exclusions relied upon by banks (including in the instant case) which defeat the effect of the new clause will have no effect. The SFC has stated that this part of the new clause is of paramount importance, and is aimed at ensuring a fair and equitable balance in the relationship between intermediaries and their clients.

Accordingly, going forward banks should be cautious in relying on contractual carve-outs to protect against investor claims for mis-selling. In cases where the mandatory client agreement clause applies, banks will not be able to rely on contractual carve-outs. Rather, banks should focus on ensuring compliance with the new and existing regulations through training and effective management.

If you wish to discuss this case further or any other related developments, please contact Gareth Thomas, Will Hallatt, Dominic Geiser or your usual Herbert Smith Freehills contact.