韓飛龍案令人關注中國盡職調查行業
When Peter Humphrey was convicted last week of illegally obtaining the personal information of Chinese citizens, it ended a case that had been closely watched by banks, hedge funds and private equity firms for clues about doing due diligence in China.
韓飛龍(Peter Humphrey)上週被判犯有非法獲取中國公民個人信息罪，這起案件受到銀行、對衝基金和私募股權公司的密切關注，目的是尋找在中國開展盡職調查的線索。Humphrey, a Briton who co-owned a risk advisory firm in China with his wife, was arrested in 2013 in Shanghai. His detention shocked multinationals and financial groups – and their lawyers and private investigators – who had to ask themselves if China was tightening its vague rules on private investigations.
韓飛龍是英國人，他與妻子在中國共同經營一家風險諮詢公司，2013年在上海被捕。他的被捕震驚了跨國公司和金融集團——以及它們的律師和私人調查員——他們不得不自問：中國是否在收緊針對私人調查的模糊規則？
As foreign companies have intensified their focus on China, they have relied on corporate risk firms such as Kroll and Control Risks, and smaller boutique firms such as Humphrey’s ChinaWhys, to conduct due diligence before advising on Chinese initial public offerings or investing in China. Humphrey’s arrest sparked concern because the Shanghai police for months provided no explanation.
隨着外國企業紛紛加緊對中國的關注，它們依賴於企業風險公司——比如德安華(Kroll)和控制風險(Control Risks)，以及更小的精品公司，如韓飛龍的中慧(ChinaWhys)——來從事盡職調查，然後就中國的首次公開發行(IPO)或在華投資提供建議。韓飛龍的被捕之所以引發關注，是因爲上海警方有好幾個月沒有提供任何解釋。
Velisarios Kattoulas, chief executive of Poseidon Research, a corporate risk firm, said risk consultancies with a big presence in China were pulling their punches in client reports because they felt “very vulnerable” in the country. Many due diligence firms changed their practices after the Humphrey case to avoid being caught buying government records that might be considered illegal to obtain. “This happened quickly. A lot of people spent time with shredders,” said Mr Kattoulas.
企業風險公司波塞冬研究(Poseidon Research)的首席執行官韋利薩里奧斯•卡圖拉斯(Velisarios Kattoulas)表示，在中國有較大業務的風險諮詢公司現在在客戶報告中有所保留，因爲它們感到自己在這個國家“非常脆弱”。韓飛龍出事後，很多盡職調查公司改變了做法，以免被發現它們有購買政府記錄的行爲，因爲這種行爲可能被視爲非法獲取。“這一切發生得太快。很多人都忙着碎紙，”卡圖拉斯表示。A general counsel at one private equity group said his firm had regularly obtained police files from risk firms before the Humphrey case. It has since stopped accepting such information, which sometimes includes a hukou – a household registration document that helps identify people.
某私募股權集團的總法律顧問表示，在韓飛龍案發之前，他的公司經常從風險企業獲得警方檔案。他的公司已停止接受這樣的信息，此類信息有時包括戶口——它是中國的家庭登記文件，有助於識別身份。Several people said the Humphrey case had not had a huge impact on the way large firms operate. One person with extensive China experience said US companies had long been more cautious because of concerns about breaching the Foreign Corrupt Practices Act, which outlaws bribing government officials. But the person said some boutique firms that carried out China investigations for US firms were still taking risky steps because they wanted to “please their clients”.
有幾個人說，韓飛龍的案件並沒有對大公司的經營方式產生巨大影響。具有豐富中國經驗的一名人士稱，美國企業早就格外謹慎，因爲它們擔心違反美國的《反海外腐敗法》(FCPA)，該法禁止賄賂政府官員。但此人表示，爲美國企業進行在華調查的某些精品公司仍付諸高風險操作，因爲它們想要“讓客戶滿意”。When Humphrey was detained, companies were worried about the implications for risk analysis. But several people said investigators and lawyers became less concerned when it appeared his case was related to an investigation into GlaxoSmithKline, which had hired him to investigate a whistleblower who had sparked a widespread government probe into the UK pharmaceutical company.
韓飛龍被拘留後，企業紛紛擔心風險分析所受的影響。但有幾個人表示，調查員和律師的擔憂後來減輕了，因爲他的案件似乎與針對葛蘭素史克(GSK)的調查有關，該公司聘用他調查一個舉報者，該舉報者引發政府對這家英國製藥企業展開廣泛調查。One investigator with significant China experience said part of the problem was that the offence Humphrey was convicted of occupies a grey zone in China, where a number of privacy and security laws contain a clause that essentially says “what we think is sensitive is sensitive”.
一名具有大量中國經驗的調查員表示，問題的一部分在於韓飛龍被判犯有的罪行在中國是一個灰色地帶；中國的一些隱私和安全法律包含了這樣的條文，其實質內容就是“我們認爲什麼敏感就什麼敏感”。While Humphrey’s case cast a spotlight on the due diligence industry in China, experts say it had already become more difficult to conduct certain kinds of investigations. Steve Vickers, a corporate risk expert, said China started to tighten rules on obtaining information after a series of reports by Muddy Waters, a research firm attached to a short seller, which raised questions about several Chinese companies, including Sino Forest.
儘管韓飛龍的案件令人關注中國的盡職調查行業，但專家們表示，進行某些類型調查的難度本來就已加大。企業風險專家韋啓賢(Steve Vickers)表示，與一個賣空者有聯繫的研究公司渾水(Muddy Waters)發表一系列報告、令人對嘉漢林業(Sino Forest)等多家中國企業產生疑問之後，中國開始收緊獲取信息的規則。While China tightened its privacy laws in 2009, three years later investigators and researchers were still able to obtain copies of people’s ID cards by paying lawyers who could access records at State Administration of Industry and Commerce. But after Bloomberg and the New York Times ran stories about the wealth of the families of Chinese leaders that relied on SAIC filings in 2012, China clamped down further.
儘管中國在2009年收緊了隱私法律，但三年後，調查員和研究人員仍可付費請能夠查看國家工商行政管理總局記錄的律師，來獲取有關人士身份證的複印件。但在彭博社(Bloomberg)和《紐約時報》(New York Times)在2012年以工商部門存檔的申報資料爲依據，報道中國領導人親屬的財富之後，中國進一步收緊了管控。While several factors along with the Humphrey case have made due diligence a tougher business, the investigator with extensive China experience said there were other problems in the industry. For example, some banks allow bankers to communicate with outside risk advisers without input from internal compliance and legal teams.
在幾個因素加上韓飛龍案使得盡職調查更難進行的同時，上述具有豐富中國經驗的調查員表示，業內還存在其他問題。比如，一些銀行允許銀行家在沒有內部合規和法務團隊參與的情況下與外部風險顧問溝通。He said another problem was that some due diligence firms used so-called “expert networks” and there was a danger the buyer of information from these would have no idea where it originated. “The level of due diligence [in China] is a really mixed bag. I would still say ‘investor beware,’” he said.
他說，另一個問題是一些盡職調查公司使用所謂的“專家網絡”，這裏面存在的一個危險是，這些信息的買家根本不知道信息的來源。“（在華）盡職調查的水平參差不齊。我還是要說‘投資者要當心，’”他表示。
