On 1 January 2021, a tabloid reported the suicide of a 55-year-old American man, found inside a private car in Sai Kung. This was hardly sensational and would have easily gone unnoticed – except perhaps by the princes and barons of the financial sectors.
The deceased was Mr. Paul Lincoln Heffner (“Heffner”), the Founder/CEO/Managing Partner of Adamas Asset Management (HK) Limited (“Adamas”).
Flash back to the end of 2019, the Securities and Futures Commission (the “SFC”) penalised Adamas for regulatory breaches. This may have set in motion a chain of events ultimately leading to Heffner’s tragic demise.
The Prologue
Adamas is a Hong Kong company incorporated in August 2011. It has, since February 2013, been licensed under the Securities and Futures Ordinance (Cap. 571) (the “SFO”) to carry on Type 9 (asset management) regulated activity and used to act as a fund manager and adviser of various offshore funds offered specifically to professional investors.
In December 2019, the SFC announced that Adamas was reprimanded and fined HK$2.5 million for failing to make prompt and proper disclosure of its notifiable interests in the shares of eight companies listed on the Stock Exchange of Hong Kong (the “SEHK”) held in the client portfolios it managed between February 2013 and March 2016.
Adamas applied to the Securities and Futures Appeals Tribunal for a review of the SFC’s sanction but aborted it soon thereafter.
Regulatory Requirements
The SFC’s sanction on Adamas is a reminder of the all-too-familiar disclosure and regulatory requirements, including, inter alia:
- Where a person acquires an interest in, or ceases to be interested in, voting shares in a listed corporation, or any change occurs affecting a person’s existing interest in voting shares in a listed corporation, such person may come under a duty of disclosure[1];
- The notifiable percentage level for notifiable interests is 5% and the specified percentage level for changes to notifiable interests is 1%[2].
- Notification should be given to the SEHK and the listed corporation within three business days after the day on which the relevant event occurs[3].
- A licensed corporation should comply with all regulatory requirements applicable to the conduct of its business activities so as to promote the best interests of clients and the integrity of the market[4].
- A licensed corporation should comply with, and implement and maintain measures appropriate to ensuring compliance with the law, rules, regulations and codes administered or issued by the SFC[5].
Hefty fine aside, it is curious how Adamas, being the manager and advisor of funds offered to professional investors, could have made the apparently “rookie” mistakes?
SFC’s Winding-up Petition & Appointment of Provisional Liquidators
Since Heffner’s death, all of Adamas’ employees have resigned and all of its operations and business activities had come to a standstill.
It transpired that Heffner was Adamas’ sole beneficial owner and director, thus no one other than Heffner was authorised to manage and handle the assets of the funds managed by Adamas and be the bank signatory of Adamas.
Against the backdrop that the business matters of Adamas had been left unattended, the SFC brought a winding-up petition against Adamas on public interest grounds (the “Petition”) and applied for the appointment of provisional liquidators to Adamas pending determination of the Petition pursuant to section 193 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) (the “SFC’s Application”).
It appears that the SFC had over the years only sought to wind up a handful of companies, amongst which Adamas is the exceptional one not listed on the SEHK.
In March 2021, the High Court published a judgment in Securities and Futures Commission v Adamas Asset Management (HK) Ltd[6] in relation to the SFC’s Application.
The judgment sets out the Court’s reasons for allowing the SFC’s Application: –
- There is a strong prima facie case that Adamas should be wound up in the public interest so as to:
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- The circumstances of the case rendered it appropriate and necessary to appoint provisional liquidators pending the hearing of the Petition.
The Epilogue, or the end of the First Chapter?
Underneath its professional façade, the ironically named Adamas was a flimsy one-man band, and its operation came to a grinding halt after the unexplained death of Heffner. This was followed by surreptitious attempts by unknown persons to usurp the control of the now unmanned company.
We expect this matter to spawn further regulatory and criminal investigations.
At the moment, we have more questions than answers.
Please contact our Partner Osbert Hui and Senior Associate Dominic Lau for any enquiries or further information.
This newsletter is for information purposes only. Its content does not constitute legal advice and should not be treated as such. Stevenson, Wong & Co. will not be liable to you in respect of any special, indirect or consequential loss or damage arising from or in connection with any decision made, action or inaction taken in reliance on the information set out herein.
References:
1. Cap. 32 Companies (Winding Up and Miscellaneous Provisions) Ordinance
2. Cap. 571 Securities and Futures Ordinance
3. News article titled “American man who committed suicide in a Tesla in Sai Kung was the CEO of Adamas Asset Management, ex-wife’s father – founder of Dragon Air (Updated)”: https://www.dimsumdaily.hk/american-man-who-committed-suicide-in-a-tesla-in-sai-kung-was-the-ceo-of-adamas-asset-management-wifes-father-founder-of-dragonair/
4. News article titled “SFC fines Fidelity and Adamas”: https://fundselectorasia.com/sfc-fines-fidelity-and-adamas/
5. SFC media release titled “SFC reprimands and fines Adamas Asset Management (HK) Limited $2.5 million”: https://apps.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/enforcement-news/doc?refNo=19PR122
6. Securities and Futures Commission v Adamas Asset Management (HK) Ltd [2021] HKEC 1107 (HCCW 88/2021, Hearing Date: 9 March 2020; Date of Judgment: 24 March 2021)
[1] Section 310(1) of the SFO.
[2] Section 315 of the SFO.
[3] Section 325(1)(a) of the SFO.
[4] General Principle 7 of the Code of Conduct for Persons Licensed by or Registered with the SFC (the “Code of Conduct”)
[5] Paragraph 12.1 of the Code of Conduct
[6] HCCW 88/2021, Hearing Date: 9 March 2020; Date of Judgment: 24 March 2021