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HCAL 250/2017 B
__________________________
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IN THE MATTER OF an Application by
TELEVISION BROADCASTS LIMITED for
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leave to apply for Judicial Review pursuant to
Order 53, rule 3 of the Rules of the High Court,
Cap 4A H
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BETWEEN
TELEVISION BROADCASTS LIMITED Applicant
And J
THE TAKEOVERS AND MERGERS PANEL 1st Putative Respondent
SECURITIES AND FUTURES COMMISSION 2nd Putative Respondent
THE TAKEOVERS EXECUTIVE Putative Interested Party
__________________________ L
Overview R
1. By public announcements made on 24 January and 13 February
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2017 (Announcements), Television Broadcasts Limited (TVB), a
company listed on the Main Board of the Stock Exchange of Hong Kong, T
announced an offer to repurchase up to 120 million of its shares at
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(Offer). 120 million shares represented 27.4% of the total issued shares of
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TVB and HK$35.075 per share represented a premium of 15.6% to the
closing price of TBV shares on the last trading day before the second- D
mentioned announcement.
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4. And under Rule 26.1 of the Takeovers Code, crossing the
holding threshold of 30% would oblige the Concert Group to make a P
mandatory general offer to all TVB shareholders to buy all their shares on
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equal terms, unless the Takeovers Executive (Executive) should grant a
waiver of such obligation commonly known as a whitewash waiver. R
1
Young Lion Holdings Ltd beneficially holding 113,888,628 shares representing a 26%
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stake.
2
Including Ms Mona Fong who has a 3.9% stake (17,096,200 shares) including a T
beneficial interest in shares held through The Shaw Foundation Hong Kong Limited.
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and (2) a whitewash waiver being granted, and not having been withdrawn,
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by the Executive. The former condition, i.e. approval of the Offer by a
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shareholders resolution, is required as a matter of law by s 238(1) of the
Companies Ordinance (Cap 622) (CO). G
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6. On 27 January and 15 February 2017, TVB submitted to the
Executive respectively an application and a supplemental application for a I
whitewash waiver on behalf of certain members of the Concert Group.
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3
Who is the Executive Director of the Corporate Finance Division of the SFC and its
delegates. The Executive undertakes the investigation of takeovers, mergers and share P
buy-backs and monitors related dealings in connection with the Codes, and it is available
for consultation and gives ruling on all matters to which the Codes apply: paragraph 5.1
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of the Introduction to the Codes.
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Meaning shareholders other than (1) the Concert Group, (2) shareholders who are R
involved in and/or interested in the whitewash waiver and/or the Offer, and (3)
shareholders who have material interests in the whitewash waiver and/or the Offer which
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is different from the interests of all other shareholders.
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Which the Executive is authorised to do under paragraph 10.1 of the Introduction to the T
Codes when he considers that there is a particularly novel, important and difficult point at
issue.
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9. Pursuant to Rule 32.1 of the Takeovers Code, the Executive
treats an application for a waiver from the requirement to make a mandatory G
offer in the case of a share buy-back by general offer or an off-market share
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buy-back in accordance with Rule 26 as if it were an application for a
whitewash waiver in accordance with Note 1 on dispensations from Rule 26. I
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10. Note 1 on dispensations from Rule 26 stipulates, inter alia, that
the Executive will normally waive the obligation to make a general offer if
there is an independent vote (i.e. one by shareholders not involved, or
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interested, in the transaction) at a shareholders meeting.
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be subject to
approval of the proposals by an independent vote at a meeting of the holders of P
any relevant class of securities, whether or not such meeting needs to be convened
to approve the issue of the securities in question.
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not waivable so that, if any of them is not satisfied, the Offer will not B
proceed.
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14. On one hand, GP1 embodies the principle: All shareholders
are to be treated even-handedly and all shareholders of the same class are to G
be treated similarly.
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provision):
(1) Subject to subsection (2), notwithstanding anything contained in the
articles of association of a licensee or any provision of any law apart from this
section, where any question or matter is to be determined by a poll at any general L
meeting of the licensee, the following shall apply
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(b) where the total voting control exercised by unqualified voting controllers
would otherwise exceed, in the aggregate, 49% of the total voting control
exercised on the poll by both qualified and unqualified voting controllers, N
the votes cast on the poll by unqualified voting controllers shall, for the
purpose of determining the question or matter, be reduced by multiplying
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those votes by the percentage determined by the formula specified in
paragraph (c);
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(2) Notwithstanding anything contained in the articles of association of the
licensee, this section shall not apply
(a) where the question or matter which is to be determined by a poll at any Q
general meeting of the licensee is the creation of different classes of shares
in the licensee; or R
(b) where the share capital of the licensee is for the time being divided into
different classes of shares, to the variation, including abrogation, of any
special rights attaching to any such classes of shares. S
(emphasis added)
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ordinarily resident in Hong Kong and has been so for 7 years and one who is
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not ordinarily resident in Hong Kong and has not been so for 7 years.
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18. Given the special interest of the Concert Group (comprising of
qualified voting controllers) in the matter, they have to abstain from voting P
at the EGM with the result that there would be a higher proportion of votes
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from unqualified voting controllers. In view of past voting patterns from
2012 to 2016, the votes to be cast by unqualified voting controllers are R
expected to exceed 49% of the total votes cast and therefore stand to be
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scaled back pursuant to the scale-back provision.
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21. The Panels thinking as reflected by the Ruling is that the
independent shareholders of TVB would not vote on the Whitewash Waiver. 7 P
They would vote just on whether to approve the Offer. They would do so
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once only. However, their votes on the Offer would be counted twice, once
with application of the scale-back provision and once without. The former R
waiver only if the latter count without any scaling-back should also yield a
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majority approving the Offer.
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22. On 30 April 2017, TVB asked for the Executives consent to
lapse the Offer on the basis that the condition for the passing of an ordinary E
Executive extended the deadline for the publication of the Offer Document
to a date 7 days after the court has ruled on the TVBs intended application
for leave for judicial review on the conditions that the application be made L
certiorari to bring up and quash the Ruling and a declaration that the scale-
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back provision in s 19 of Schedule 1 to the BO apply for and to the
shareholders approval of the Whitewash Waiver. TVB has made it clear Q
that it is not asking the court to judge whether a whitewash waiver should be
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granted, which question remains one for the Executive and TVBs
shareholders. If TVB succeeds in this application for judicial review, the S
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25. On 19 June 2017, Mr Justice Au directed a rolled-up hearing of
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TVBs application for leave as well as the substantive judicial review.
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26. SFC has entered an appearance. SFC also represents the Panel
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and the Executive whose attendance has been excused by the court.
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The BO L
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The restrictions in s 8(4)(a) apply equally to a domestic pay television licensee. T
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This must be annually updated with the Communications Authority: see s 39(1).
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(4) s 20 of Schedule 1 which prohibits any unqualified voting
controller (i.e. non-Hong Kong resident shareholder) from F
holding, acquiring or exercising or causing or permitting to be
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exercised 2-6%, 6-10% or 10%, in the aggregate, of the total
voting control of a licensee without the prior written approval H
of the Communications Authority. Subsection (2) goes on to
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provide:
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If an unqualified voting controller holds more than 10% in the
aggregate, of the total voting control of a licensee in contravention
of subsection (1)(a), notwithstanding anything contained in the
articles of association of the licensee or any provision of the laws
of Hong Kong apart from this section, he shall not exercise or
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cause or permit to be exercised, in relation to any question or
matter arising at a general meeting of the licensee, voting rights
exceeding, in the aggregate, 10% of the total voting control of the M
licensee. (emphasis added)
Ordinance.
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The Codes
General O
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34. Paragraph 1.3 of the Introduction makes it clear that the Codes
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do not have the force of law, but represent a consensus of opinion of those
who participate in Hong Kongs financial markets and the SFC regarding E
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35. Paragraph 2.1 of the Introduction sets out the way in which the
Codes are to be interpreted: firstly with reference to the General Principles
which are essentially statements of good standards of conduct, and then to
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the specific Rules which expand on the General Principles. Both the
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General Principles and the Rules are to be interpreted to achieve their
underlying purposes. N
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36. This paragraph also expressly allows the Executive and the
Panel to modify or relax the effect of the language of the General Principles P
to achieve their underlying purposes. Likewise, they each has the discretion
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to modify or relax the application of a Rule if it considers that strict
application would in the particular circumstances of the case operate in an R
unnecessarily restrictive or unduly burdensome or otherwise inappropriate
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manner.
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GP1
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38. It is stressed on behalf of the SFC that TVB has only one class C
of shares, even though there are 2 classes of holders of such shares namely,
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qualified voting controllers and unqualified voting controllers who are
differentiated by the BO based on whether they are ordinarily resident in E
40. Dealing with this in more general terms, the mandatory general J
participate in the change of control through selling their shares at the highest
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price paid by the offeror for acquiring control. This is articulated in General
Principle 2: If control of a company changes or is acquired or is N
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The obligation under Rule 26.1 to make a mandatory general offer is typically triggered
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when a person (or a group of persons acting in concert) (1) becomes interested in 30% or
more of the voting rights of a company or (2) who is already interested in 30%, but not T
more than 50%, acquires more than 2% in a 12-month period.
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43. TVBs position, both before the Panel and in this application,
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has always been that a whitewash waiver should either be granted on the
usual condition of approval by an independent vote at a shareholders H
meeting (to which the scale-back provision would apply) or not at all.
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44. Where a whitewash wavier is granted, it is unusual for the same
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to be not put to the vote fro approval by companys shareholders. Indeed, it
is unprecedented.
45. Before I set out the Panels reasons for the Ruling, I should for
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the sake of completeness mention that, prior to the Hearing, the Panel sought
and obtained advice from Mr John Scott SC on the following 2 questions N
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The use of the analysis of the votes on that resolution to determine whether or not B
the Panel will grant its whitewash waiver by looking at the composition of the
votes does not, , amount to the Panel trying to find out what the shareholders
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are thinking. That isn't the correct approach. The Panel, in that situation, would
be deciding whether, in its discretion, it is deciding to grant the whitewash waiver,
having regard to the level of support of the buy-back resolution. D
And in that situation, I think it is important to bear in mind the limits of [the
scale-back provision], and it is confined to the situation where any question or E
matter is to be determined by a poll at a general meeting.
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The question of a whitewash waiver on this scenario is not to be determined by a
poll at any general meeting of the licensee. It is instead a decision vested only in
the Panel. G
27).
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(4) Accordingly, the Codes include provisions to ensure that
independent shareholders have an adequate opportunity to T
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The Panel was referring to the Takeovers Codes approach to partial offers. Unlike a
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share buy-back offer which involves the company offering to repurchase some of its
shares from all of its shareholders, a partial offer is made by a shareholder, its concert
parties or a third party to shareholders to buy a specified number of (but not all) shares in Q
a company. Whitewash waivers do not apply to partial offers. If a partial offer could
lead to the offeror acquiring control of the company, the partial offer is usually made
conditional on the approval by shareholders holding over 50% of the total voting rights R
(not held by the offeror), and not just those shareholders electing to vote. No
shareholders meeting is required to be held to approve partial offers. Instead, S
shareholders indicate their approval by filling in a special approval and acceptance form.
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(8) The Panel was fully aware that regardless of the Codes, it is a
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statutory requirement (under s 238(1) of the CO) that the Offer
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itself must be approved by an ordinary resolution of
shareholders in general meeting, the voting on which must be G
subject to the scale-back provisions (paragraph 34).
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(9) The Panel thus decided that in addition to the approval of the
Offer by an ordinary resolution of TVB shareholders in a I
general meeting (to which the scale-back provision would
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apply), the grant of the Whitewash Waiver is conditional upon
the Majority Vote Condition (paragraph 35.1) and the No Vote
Condition (paragraph 35.2).
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49. TVB advances the following 6 grounds for judicial review of the
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Ruling:
(1) Ground 1 - The Ruling was ultra vires in that the Panel does not O
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(4) Ground 4 - The Panel misconstrued GP1, and thus erred in law, B
Grounds 1, 2 & 3
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50. The first 3 grounds can be considered together.
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Legal principles
51. A person exercising public authority has a duty to promote and
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must not act to undermine the public policies behind his authority: Padfield
v Minister of Agriculture, Fisheries, and Food [1968] AC 997 at 1030B-D Q
per Lord Reid; Backhouse v Lambeth London Borough Council, The Times,
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14 October 1972; and R v Home Secretary, Ex p Fire Brigades Union [1995]
2 AC 513 at 552B-E and 554F-H per Lord Browne-Wilkinson. The S
principle applies equally to any decision maker who acts to frustrate the
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policy of a statute even if not a statute from which he derives his power: R
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(OneSearch Direct Holdings Ltd) v City of York Council [2010] PTSR 1481 B
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TVBs case
52. It is TVBs case that the Ruling is an attempt to circumvent the G
scale-back provision, which defines the different voting rights of
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shareholders (albeit holding the same class of shares) of a domestic free
television licensee. By the Ruling, the Panel imposes its views on I
shareholder equality which is in conflict with the scale-back provision
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giving primacy to the Hong Kong resident shareholders of a domestic free
television licensee. In doing so, the Panel acted ultra vires and for an
improper purpose. It has also made an error of law in missing the true effect
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of the statutory regime under the BO.
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SFCs case
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53. In opposition, it is contended on behalf of the SFC that:
(1) The BO does not provide for the grant of a whitewash waiver.
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Whether to grant a whitewash waiver (and if so, on what
conditions) is not a matter governed by the BO or the P
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within the province of the Panel. The Panel derives its powers
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not from the BO but under the Codes under which it is given
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the powers to modify or relax the application of a Rule if it
considers appropriate. G
(3) The scale-back provision applies only where any question or
matter is to be determined by a poll at any general meeting of H
the licensee. It does not apply when the Panel merely decides
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as a condition for the grant of the Whitewash Waiver that it
should accord with the wishes of all of TVBs shareholders J
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Discussion
54. The starting point is, I believe, the supremacy of the scale-back R
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vote by TVB shareholders (as is usually the case), that vote would have to be
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counted with adjustment in accordance with the scale-back provision and
that the Panel imposed the No Vote Condition precisely because of that. G
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57. Mr Yu SC, however, stresses that the Panel is not obliged by
law to put the Whitewash Waiver to TVBs shareholders for a vote at general I
meeting. I am afraid that is beside the point. The BO is not concerned with
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what questions or matters are to be put to shareholders of a domestic free
television licensee. As submitted by counsel for TVB, [t]he BO is agnostic
as to the source of the requirement for a determination by shareholders, the
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identity of the person or body requiring it, or the stage at which such is
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required. The scale-back provision applies where any question or matter
is to be determined by a poll at any general meeting of the licensee N
(emphasis added). It does not just apply where the question or matter put
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to shareholders is required by law to be placed before shareholders.
58. The question to ask is simply whether the Panel did by the
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Ruling in fact put the Whitewash Waiver to a determination by TVBs
shareholders at the EGM. R
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59. No doubt the imposition of the No Vote Condition (which in
terms forbids a vote on the Whitewash Waiver) was intended to induce a T
Condition.
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60. With respect, one looks at substance and reality, and not just D
form.
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61. The focus of the Ruling is the Majority Vote Condition which
directs a recount of the votes on the Offer without applying the scale-back G
provision.
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62. I have great difficulty with the SFCs suggestion that the I
exercise of recounting the votes on the Offer without applying the scale-back
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provision is simply a way of ascertaining TVBs shareholders wishes on the
Whitewash Waiver without a shareholders meeting. Such suggestion might
have some validity in the hypothetical situation where a whitewash waiver is
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sought after the shareholders meeting on the buy-back offer13 and the
Executive consults the votes supporting the offer which were cast without M
63. Such difficulty is not removed by the SFCs further point that
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the Panel did not grant the Whitewash Waiver, but only directed that it
should be granted conditional on the Majority Vote Condition and the No Q
Vote Condition. Once the Panel made the Ruling, the question of whether to
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grant the Whitewash Waiver reverts back to the Executive who would grant
the Whitewash Waiver after the EGM having regard to the level of support S
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Which I am told is never done.
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for the Offer. This has provoked an argument between the parties as to B
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65. What therefore matters is that the Majority Vote Condition
requiring a recount of the votes on the Offer without applying the scale-back
provision has been imposed, which raises the issue whether such condition
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effectively puts the Whitewash Wavier to a determination by a poll at the
EGM, thereby triggering the scale-back provision. M
66. I do not see how this question can be answered in the negative. N
Even though the voting is not on the Whitewash Waiver as such, the votes of
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TVB shareholders at the EGM will determine the grant or otherwise of the
Whitewash Waiver (or, put differently, the outcome of the waiver would P
depend on the vote).
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67. The only point that can be taken on behalf of the EGM is that R
the vote will not be on the Whitewash Waiver, but on the Offer.
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The Panel is setting the conditions for the Whitewash Waiver before the vote
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and telling TVB shareholders how their votes will be counted and used. The B
Ruling is public and has been widely reported in the media. TVB will also
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be obliged to explain the Ruling to its shareholders in the Offer Document so
that they appreciate the full significance of their votes on the Offer. So even D
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In the usual situation, the market practice is in fact to include both approval of the
underlying transaction and approval of the whitewash waiver in a single resolution for a
single vote. T
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72. In including the Majority Vote Condition for the grant of the
Whitewash Wash, the Panel misconstrued the true meaning and effect of the G
scale-back provision and disregarded and attempted to circumvent such
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provision. The Ruling was ultra vires.
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73. TVB has therefore made out Grounds 1, 2 and 3.
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74. In light of my conclusion on TVBs Grounds 1, 2 and 3, it is
unnecessary for me to address the other grounds for judicial review.
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75. Before I leave this judgment, I should for the sake of
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completeness state that I have not overlooked Mr Yu SCs submission that
while decisions of the Panel are amenable to judicial review, the courts have N
long recognised that such decisions should only be interfered with in very
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limited circumstances. In support, Mr Yu SC refers to Lord Donaldson
MRs judgments in R v Panel on Take-overs and Mergers, ex p Datafin Ltd P
[1987] QB 815 at 841D-G and R v Panel on Take-overs and Mergers, ex p
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Guinness Plc [1990] 1 QB 146 at 159C-G for the following general
propositions: R
(1) First, the court gives considerable latitude to the Panel on Take-
overs and Mergers interpretation of the City Codes on Take- S
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76. While one may have to look at these principles if it should be
necessary to deal with, for example, Ground 4 which on its face goes to the N
if triggered, has priority over the Codes. The crux of the present case is
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whether the general law (namely, the scale-back provision) is triggered or
not. R
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Disposition
77. I grant TVB leave to apply for judicial review of the Ruling. T
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79. The question of whether to grant a whitewash waiver to TVB
should be remitted back to the Executive.
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80. I also make an order nisi that the SFC should pay TVBs costs
of these proceedings, to be taxed on a party and party basis if not agreed, M
81. Last but not least, it remains for me to thank counsel for both O
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(Lisa Wong)
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