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腰斬迷債回購方案的司法覆核申請理何在？
迷債回購方案的司法覆核不被批准進行決非是香港司法史上的小漣漪，而是對司法獨立的衝擊。
讓我們看看迷債回購方案的司法覆核是如何被腰斬的。
首先，迷債苦主代表的法律援助不被批准，理由竟然是該代表包括迷債購入成本在內的資產稍微超過援助標準的上限(17萬元)。 其實，迷債的價值就是算到了今天仍然無法從法律上確實，世界公認的會計審慎原則都只能將其列為損失。法律援助署的官員自己也承認此不批准理由會有很大的爭議，但這那是甚麼法律觀點的爭議，將無法確定的將來資產也列為現有資產，這猶如依據你持有明天開彩的彩券而確定你今天就是百萬富翁一樣，完全是荒唐的政治決定。
第二，綜合各媒體的報導，在申請司法覆核許可的的聆訊上，“法官指此案牽連甚廣，除了十六家分銷銀行外，更有二萬四千八百八十八名已接受回購方案的雷曼事主可能受影響，因為一旦申請人獲判勝訴，證監會的調查要繼續，另一答辯人香港金融管理局也可向銀行採取執法行動，已取回六成或七成本金的事主可能因而被銀行要求退款，法官質疑申請人是否足以代表其他事主，而其他事主也可能不想再受噩夢糾纏”。
眾所周知，司法覆核是就政府的公共事務的政策、決策所進行，必然是牽連甚廣， 甚至牽連到司法體制所涵蓋的全社會。進行司法覆核是對政治尋求法律層面的裁決，而不是政治裁決。其實香港早前已有非常著明的與整個香港社會牽連甚廣案例，就是港人內地出生子女居港權的官司。終審法院並沒有就官司結果是否會對香港社會的經濟帶來嚴重影響的角度去裁決，而是從本身對基本法的理解去作出裁決，雖然事件最後由政府提請人大釋法而推翻原終審法院的裁決而結束，但終審法院的原裁決正是體現了當時參與的法官對司法獨立的堅守。如果法官也考慮社會政治因素，那麼所謂司法獨立就無存在的必要，社會的爭議就交由政治家來解決好了，要麼是通過議會決議，要麼是用革命手段推翻政府，但這決非社會之福，司法與政治應是凱撒的歸凱撒，上帝的歸上帝。
法官憂慮，“一旦申請人獲判勝訴，證監會的調查要繼續，另一答辯人香港金融管理局也可向銀行採取執法行動”。但是次司法覆核正是要求推翻證監會與金管局停止調查的政治決定，尋求社會公義。停止調查無非是放棄對銀行違規違法行為的追究，這難道是公正正義社會的應有之義嗎？
法官質疑其他事主也可能不想再受噩夢糾纏，當然是懷有高尚的、悲憫的人文情懷，但法官也應該關懷那些受騙而又被迫接受六至七成回購方案的苦主的噩夢糾纏。其實公認的法律之神是蒙上了雙眼，只從法律中尋找答案，而不是貢獻滔滔的憐憫淚水。以個人感情代替法律判斷，也不是司法的應有之義。
法官也質疑申請人是否足以代表其他事主，當然是合理的懷疑，但法官也沒有展開正式的聆訊，他又是如何推斷其他事主“噩夢糾纏”之說？沒有足夠充分的證據，司法程序是允許主觀臆測斷案嗎？
迷債的回購方案是由兩方面的內容組成，一是證監與金管局為監管一方，16家銀行為另一方的協議，協議的主要內容是16家銀行願意以六至七稱成本金回購迷債，監管方停止對16家銀行的迷債銷售調查；二是16家銀行向迷債持有者回購迷債的商業協議。如果司法覆核正如法官所言，最後由苦主方取勝，那麼法官的頒令也只能影響到證監與金管局的政治決策，而要取消銀行與迷債持有者的回購迷債協議，應須按協議雙方的自願行事，如苦主一方不願的話，我們認為也只能通過司法的程序。實在不明白法官“已取回六成或七成本金的事主可能因而被銀行要求退款”而使苦主“噩夢糾纏”之言，難道銀行會要脅或強搶？還是銀行要與二萬多苦主逐個進行司法訴訟？監管當局與銀行只要付出願意承擔過失的誠意，以新鴻基及凱基證券與證監的和解協議為藍本，重新提出公平的回購方案，那麼，二萬多苦主、政府、銀行本身、以至香港社會才不會再噩夢糾纏。
迷債回購方案的司法覆核在一波三折下還未開始就被腰斬，法官在拒絕批出司法覆核許可的判詞中大致重覆了他在聆訊上所表述的上述觀點，這只能讓人相信，法官在許可聆訊之前就已有定案， 並且充分表露在他的聆訊發言中。法官並且認為苦主如仍不滿可再向監管機構投訴，法官大人確真是上帝派來的天使，充滿了爛漫的天真，只聽監管當局一面的美言，但卻不花一點時間了解一下監管當局因忌諱本身的監管過失，而在一年多來的所謂調查是如何袒護銀行、塞責敷衍。
法律援助署不批准我們的援助申請，使我們無財力上訴，法官的判詞也沒有使我們相信判決是合理的，而我們只能深信，迷債回購方案的司法覆核被腰斬是香港近年來大資本大財閥獨大的政治體制的結果，中低下階層的反抗雖愈趨激烈，但大多敗下陣來。是忍氣吞聲，還是愈挫愈戰，這是普羅大眾正面臨的選擇，也是雷曼苦主面臨的選擇。
2010年6月27日 星期日
2010年6月10日 星期四
Goldman Sachs Hudson CDO Said to Be Target of Second SEC Probe ， 高盛面臨美證監第二項調查
June 10 (Bloomberg) -- Goldman Sachs Group Inc.’s $2 billion Hudson Mezzanine collateralized debt obligation, sold in 2006, is the target of a probe by the Securities and Exchange Commission, according to a person with knowledge of the matter.
The inquiry into the CDO may not lead to any additional actions against the New York-based securities firm, said the person, who declined to be identified because the investigation isn’t public. Michael DuVally, a spokesman for Goldman Sachs, declined to comment, as did SEC spokesman John Nester. The Financial Times reported the probe yesterday.
The U.S. Senate’s Permanent Subcommittee on Investigations, led by Levin, released e-mails in April related to Goldman Sachs’s mortgage-linked deals, including the Hudson Mezzanine transaction. In one October 2006 e-mail, a Goldman Sachs employee describes how the Hudson deal might be viewed by investors as “junk.”
Hudson Mezzanine
The Hudson Mezzanine 2006-1 CDO contained credit default swaps that referenced $2 billion in subprime, BBB-rated residential mortgage-backed securities, according to the documents released by Levin’s committee. While Goldman Sachs selected the assets in the deal, the firm was also the only investor buying credit protection on the entire transaction , the documents show.
Goldman Sachs created and sold the Hudson CDO in late 2006, near the time documents released by Levin show senior executives wanted to reduce the firm’s exposure to subprime mortgages.
“The CDO imploded within two years. Your clients lost; Goldman profited,” Levin said in an April 27 hearing during which he questioned Goldman Sachs Chief Executive Officer Lloyd Blankfein about the Hudson deal and other CDOs. “To go out and sell these securities to people and then bet against those same securities, it seems to me, is a fundamental conflict of interest and is -- raises a real ethical issue.”
(From Bloomberg: http://www.bloomberg.com/apps/news?pid=20601087&sid=aSNYXMe69Kh8&pos=3)
信報 2010年6月11日: 高盛面臨美證監第二項調查
面臨多項調查的高盛據報正面對美國證監第二項調查，調查目標是該行二○○六年出售的二十億美元「赫德森夾層」債務抵押債券（Hudson Mezzanine CDO）。
涉「赫德森夾層」ＣＤＯ
彭博社昨天引述知情人士報道，美國證券及交易委員會（ＳＥＣ）進行相關調查工作後，未必會向高盛採取進一步行動。
《金融時報》引述知情人士報道，ＳＥＣ最近數周正收集「赫德森夾層」ＣＤＯ交易的資料。
報道引述內部文件指出，高盛出售這些金融產品之際，亦同時沽空「赫德森夾層」ＣＤＯ，以保障這批ＣＤＯ的全部價值。
法律專家預期，「赫德森夾層」ＣＤＯ交易的調查將集中查明，高盛是否向投資者透露足夠的資料。高盛在推廣文件中表明，其利益與投資者利益相同，因為高盛購入這些ＣＤＯ。
這項調查是ＳＥＣ針對華爾街有關ＣＤＯ活動的更廣泛調查的一部分。《華爾街日報》昨天報道，ＳＥＣ同時調查摩根士丹利等主要大行的多宗按揭相關交易。
根據參議員萊文（Carl Levin）領導的參議院常設調查小組委員會的文件，高盛這批二○○六年一級「赫德森夾層」ＣＤＯ包含一批信貸違約掉期（ＣＤＳ），這些ＣＤＳ涉及合共二十億美元的BBB級次按抵押證券。
ＳＥＣ四月十六日提出起訴高盛在二○○七年出售名為Abacus的ＣＤＯ時涉嫌欺詐後，高盛股價已下跌百分之二十六。
遭澳洲對沖基金索償
在該訴訟中，ＳＥＣ表示，高盛及其一名職員沒有向投資者透露，對沖基金Paulson & Co.在設計該ＣＤＯ及對賭那些ＣＤＯ的角色。
另外，澳洲對沖基金Basis Capital周三入稟紐約曼哈頓聯邦法院，向高盛索償十億美元，指該公司購入高盛的次按證券後，被迫清盤。
Basis Capital的代表律師表示，高盛以明知錯誤的賣點推銷，強迫投資者把有毒證券的風險從賬目中撇除，是欺詐行為■
The inquiry into the CDO may not lead to any additional actions against the New York-based securities firm, said the person, who declined to be identified because the investigation isn’t public. Michael DuVally, a spokesman for Goldman Sachs, declined to comment, as did SEC spokesman John Nester. The Financial Times reported the probe yesterday.
The U.S. Senate’s Permanent Subcommittee on Investigations, led by Levin, released e-mails in April related to Goldman Sachs’s mortgage-linked deals, including the Hudson Mezzanine transaction. In one October 2006 e-mail, a Goldman Sachs employee describes how the Hudson deal might be viewed by investors as “junk.”
Hudson Mezzanine
The Hudson Mezzanine 2006-1 CDO contained credit default swaps that referenced $2 billion in subprime, BBB-rated residential mortgage-backed securities, according to the documents released by Levin’s committee. While Goldman Sachs selected the assets in the deal, the firm was also the only investor buying credit protection on the entire transaction , the documents show.
Goldman Sachs created and sold the Hudson CDO in late 2006, near the time documents released by Levin show senior executives wanted to reduce the firm’s exposure to subprime mortgages.
“The CDO imploded within two years. Your clients lost; Goldman profited,” Levin said in an April 27 hearing during which he questioned Goldman Sachs Chief Executive Officer Lloyd Blankfein about the Hudson deal and other CDOs. “To go out and sell these securities to people and then bet against those same securities, it seems to me, is a fundamental conflict of interest and is -- raises a real ethical issue.”
(From Bloomberg: http://www.bloomberg.com/apps/news?pid=20601087&sid=aSNYXMe69Kh8&pos=3)
信報 2010年6月11日: 高盛面臨美證監第二項調查
面臨多項調查的高盛據報正面對美國證監第二項調查，調查目標是該行二○○六年出售的二十億美元「赫德森夾層」債務抵押債券（Hudson Mezzanine CDO）。
涉「赫德森夾層」ＣＤＯ
彭博社昨天引述知情人士報道，美國證券及交易委員會（ＳＥＣ）進行相關調查工作後，未必會向高盛採取進一步行動。
《金融時報》引述知情人士報道，ＳＥＣ最近數周正收集「赫德森夾層」ＣＤＯ交易的資料。
報道引述內部文件指出，高盛出售這些金融產品之際，亦同時沽空「赫德森夾層」ＣＤＯ，以保障這批ＣＤＯ的全部價值。
法律專家預期，「赫德森夾層」ＣＤＯ交易的調查將集中查明，高盛是否向投資者透露足夠的資料。高盛在推廣文件中表明，其利益與投資者利益相同，因為高盛購入這些ＣＤＯ。
這項調查是ＳＥＣ針對華爾街有關ＣＤＯ活動的更廣泛調查的一部分。《華爾街日報》昨天報道，ＳＥＣ同時調查摩根士丹利等主要大行的多宗按揭相關交易。
根據參議員萊文（Carl Levin）領導的參議院常設調查小組委員會的文件，高盛這批二○○六年一級「赫德森夾層」ＣＤＯ包含一批信貸違約掉期（ＣＤＳ），這些ＣＤＳ涉及合共二十億美元的BBB級次按抵押證券。
ＳＥＣ四月十六日提出起訴高盛在二○○七年出售名為Abacus的ＣＤＯ時涉嫌欺詐後，高盛股價已下跌百分之二十六。
遭澳洲對沖基金索償
在該訴訟中，ＳＥＣ表示，高盛及其一名職員沒有向投資者透露，對沖基金Paulson & Co.在設計該ＣＤＯ及對賭那些ＣＤＯ的角色。
另外，澳洲對沖基金Basis Capital周三入稟紐約曼哈頓聯邦法院，向高盛索償十億美元，指該公司購入高盛的次按證券後，被迫清盤。
Basis Capital的代表律師表示，高盛以明知錯誤的賣點推銷，強迫投資者把有毒證券的風險從賬目中撇除，是欺詐行為■
2010年6月2日 星期三
Moody's 'Gave Up Its Analytical Distinctiveness,' Ex-Employee Says
Moody's 'Gave Up Its Analytical Distinctiveness,' Ex-Employee Says
BUSINESSJUNE 2, 2010, 9:33 A.M. ET
By AARON LUCCHETTI
A former Moody's Corp. lawyer who worked in the ratings firm's structured-finance group for a decade planned to tell a congressional panel that the company "gave up its analytical distinctiveness," partly by intimidating analysts who were too tough or angered influential investment bankers .
In written testimony to the Financial Crisis Inquiry Commission, Mark Froeba accused Moody's managers of having "deliberately engineered a change to its culture intended to ensure that rating analysis never jeopardized market share and revenue."
Mr. Froeba is one of three former Moody's employees set to testify Wednesday at a hearing by the bipartisan commission into the credibility of credit ratings, the investment decisions based on those ratings and their role in the financial crisis.
The New York hearing also will include billionaire Warren Buffett, whose Berkshire Hathaway Inc. has long owned a stake in Moody's. Mr. Buffett, who provided no prepared testimony before the hearing, was subpoenaed by the Financial Crisis Inquiry Commission after declining an invitation to appear voluntarily.
The 10-member panel, led by former California Treasurer Phil Angelides, is required to submit a report on its findings by Dec. 15. Four previous hearings have zeroed in on investment banks, subprime mortgages and regulatory oversight of Wall Street, financial firms and government-sponsored entities such as Fannie Mae and Freddie Mac.
Wednesday's hearing is set to begin at 8:30 a.m. ET. Mr. Buffett is expected to testify at about 11:30 a.m. with Moody's Chief Executive Raymond McDaniel, who has led the ratings firm since 2005.
Mr. McDaniel, in his written testimony, told the panel how the firm has improved its internal procedures. He also emphasized the limitations of credit ratings, which focus on the risk of default on debt payments.
Still, the CEO is likely to face tough questions about why the Moody's Investors Service unit of Moody's and its two biggest rivals, the Standard & Poor's unit of McGraw-Hill Cos. and Fimalac SA's Fitch Ratings, gave Triple-A marks to thousands of mortgage-related securities that later plummeted in value and suffered sharp downgrades. The three companies generated combined revenues of $3.6 billion on bond ratings last year.
Last month, Moody's disclosed it had received notice from the Securities and Exchange Commission that the ratings firm may face an enforcement action for allegedly misleading regulators in a 2007 license application. Moody's has said it fixed issues related to the SEC's concerns and has described the problem as isolated.
In his written testimony, Mr. Froeba cited as an example of undue efforts by Moody's to preserve the firm's market share a rating of European collateralized debt obligations that was one or two notches higher than justified. Mr. Froeba is particularly critical of former Moody's President Brian Clarkson, who carried out orders from Mr. McDaniel and the company's board to make the firm more friendly and responsive to bond issuers, according to the written testimony.
Under Mr. Clarkson, analysts were forced to explain even tiny slips in market share on deals, the former Moody's lawyer told the Financial Crisis Inquiry Commission in his written testimony. Such pressure was a repudiation of the independence long cherished by the firm, Mr. Froeba wrote in his prepared remarks for the panel.
"I reject any suggestion … that Moody's sacrificed ratings quality in an effort to grow market share," Mr. Clarkson said in his prepared remarks submitted to the Financial Crisis Inquiry Commission. Mr. Clarkson left Moody's in 2008 and is set to make his first public comments about the financial crisis when he testifies Wednesday afternoon.
In his prepared remarks, Mr. Clarkson told the congressional panel that he was "disappointed" in the performance of Moody's ratings. But the firm's assumptions and methodologies "were overwhelmed by the magnitude and velocity of the unprecedented economic deterioration."
Mr. Clarkson said rating firms and investors need better disclosure from issuers about structured-finance bonds, suggesting that regulators look into stronger rules for mortgage brokers and underwriters.
Ratings firms face the likelihood of toughened oversight under financial-overhaul legislation being debated this month by a conference committee of the House and Senate. The proposals include measures to make rating firms more transparent and effective, while removing some of their market clout and stripping bankers of the ability to shop around for the firm that will give the highest rating.
At Wednesday's hearing, former Moody's rating executive Gary Witt is expected to describe how he removed a legal analyst from collateralized debt obligations, or CDOs, created byGoldman Sachs Group Inc. after the securities firm asked that the analyst "not be assigned to further Goldman Sachs CDOs for the next year," according to Mr. Witt's written testimony.
Mr. Witt told the panel that he worried Goldman would complain to his superiors if he failed to do what the firm wanted, potentially costing the analyst his job. After discussing the matter with the Moody's analyst, "we both agreed that the best course of action was to comply with Goldman's request," according to Mr. Witt's testimony.
—Erik Holm in New York contributed to this article.
Write to Aaron Lucchetti at aaron.lucchetti@wsj.com
Related stories:
S & P: "We’d Do a Deal Structured by Cows" And Other Rating Agency Dirty Linen
Employees at Moody’s Investors Service told executives that issuing dubious creditworthy ratings to mortgage-backed securities made it appear they were incompetent or “sold our soul to the devil for revenue,” according to e-mails obtained by U.S. House investigators.
“The story of the credit rating agencies is a story of colossal failure,” Committee Chairman Henry Waxman, a California Democrat, said at the hearing. “The result is that our entire financial system is now at risk.”…
Former executives from S&P and Moody’s told lawmakers today that credit raters relied on outdated models in a “race to the bottom” to maximize profits.
BUSINESSJUNE 2, 2010, 9:33 A.M. ET
By AARON LUCCHETTI
A former Moody's Corp. lawyer who worked in the ratings firm's structured-finance group for a decade planned to tell a congressional panel that the company "gave up its analytical distinctiveness," partly by intimidating analysts who were too tough or angered influential investment bankers .
In written testimony to the Financial Crisis Inquiry Commission, Mark Froeba accused Moody's managers of having "deliberately engineered a change to its culture intended to ensure that rating analysis never jeopardized market share and revenue."
Mr. Froeba is one of three former Moody's employees set to testify Wednesday at a hearing by the bipartisan commission into the credibility of credit ratings, the investment decisions based on those ratings and their role in the financial crisis.
The New York hearing also will include billionaire Warren Buffett, whose Berkshire Hathaway Inc. has long owned a stake in Moody's. Mr. Buffett, who provided no prepared testimony before the hearing, was subpoenaed by the Financial Crisis Inquiry Commission after declining an invitation to appear voluntarily.
The 10-member panel, led by former California Treasurer Phil Angelides, is required to submit a report on its findings by Dec. 15. Four previous hearings have zeroed in on investment banks, subprime mortgages and regulatory oversight of Wall Street, financial firms and government-sponsored entities such as Fannie Mae and Freddie Mac.
Wednesday's hearing is set to begin at 8:30 a.m. ET. Mr. Buffett is expected to testify at about 11:30 a.m. with Moody's Chief Executive Raymond McDaniel, who has led the ratings firm since 2005.
Mr. McDaniel, in his written testimony, told the panel how the firm has improved its internal procedures. He also emphasized the limitations of credit ratings, which focus on the risk of default on debt payments.
Still, the CEO is likely to face tough questions about why the Moody's Investors Service unit of Moody's and its two biggest rivals, the Standard & Poor's unit of McGraw-Hill Cos. and Fimalac SA's Fitch Ratings, gave Triple-A marks to thousands of mortgage-related securities that later plummeted in value and suffered sharp downgrades. The three companies generated combined revenues of $3.6 billion on bond ratings last year.
Last month, Moody's disclosed it had received notice from the Securities and Exchange Commission that the ratings firm may face an enforcement action for allegedly misleading regulators in a 2007 license application. Moody's has said it fixed issues related to the SEC's concerns and has described the problem as isolated.
In his written testimony, Mr. Froeba cited as an example of undue efforts by Moody's to preserve the firm's market share a rating of European collateralized debt obligations that was one or two notches higher than justified. Mr. Froeba is particularly critical of former Moody's President Brian Clarkson, who carried out orders from Mr. McDaniel and the company's board to make the firm more friendly and responsive to bond issuers, according to the written testimony.
Under Mr. Clarkson, analysts were forced to explain even tiny slips in market share on deals, the former Moody's lawyer told the Financial Crisis Inquiry Commission in his written testimony. Such pressure was a repudiation of the independence long cherished by the firm, Mr. Froeba wrote in his prepared remarks for the panel.
"I reject any suggestion … that Moody's sacrificed ratings quality in an effort to grow market share," Mr. Clarkson said in his prepared remarks submitted to the Financial Crisis Inquiry Commission. Mr. Clarkson left Moody's in 2008 and is set to make his first public comments about the financial crisis when he testifies Wednesday afternoon.
In his prepared remarks, Mr. Clarkson told the congressional panel that he was "disappointed" in the performance of Moody's ratings. But the firm's assumptions and methodologies "were overwhelmed by the magnitude and velocity of the unprecedented economic deterioration."
Mr. Clarkson said rating firms and investors need better disclosure from issuers about structured-finance bonds, suggesting that regulators look into stronger rules for mortgage brokers and underwriters.
Ratings firms face the likelihood of toughened oversight under financial-overhaul legislation being debated this month by a conference committee of the House and Senate. The proposals include measures to make rating firms more transparent and effective, while removing some of their market clout and stripping bankers of the ability to shop around for the firm that will give the highest rating.
At Wednesday's hearing, former Moody's rating executive Gary Witt is expected to describe how he removed a legal analyst from collateralized debt obligations, or CDOs, created byGoldman Sachs Group Inc. after the securities firm asked that the analyst "not be assigned to further Goldman Sachs CDOs for the next year," according to Mr. Witt's written testimony.
Mr. Witt told the panel that he worried Goldman would complain to his superiors if he failed to do what the firm wanted, potentially costing the analyst his job. After discussing the matter with the Moody's analyst, "we both agreed that the best course of action was to comply with Goldman's request," according to Mr. Witt's testimony.
—Erik Holm in New York contributed to this article.
Write to Aaron Lucchetti at aaron.lucchetti@wsj.com
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