可见，只要是金融产品就一定有漏洞可以投机
10保户成功获庭令 AIA须先退还部分本金
（2009-06-30）
● 傅丽云
10名保户成功获得庭令，要AIA先退还约106万元的本金，但AIA以有关保单非保本（capital guaranteed）投资，以及保户互相勾结非法牟取1770万元利润等理由拒绝退还，并向终审法院上诉，结果被判败诉，须先退还60万元。
本报两个月前独家报道这则罕见官司。由大法官陈锡强和上诉庭法官潘文龙组成的二司，日前发表判决，驳回美国友邦保险公司（新加坡）（AIA）的申请，说明AIA须退还保金的原因。
AIA的立场是：10人并非无权享有本金，而是可能根本没本金可退给他们，一来这不是保本的本金；二来因为AIA也提出索偿，而有关索偿额可能高过10人要求退回的本金。
但二司认为，这样的说法纯属“推测性”，因为能影响可退还本金的唯一索偿，其实是AIA要追讨的一般损害赔偿（general damages)，即10人勾结起来导致AIA蒙受亏损。
大法官陈锡强代表二司撰写的判词指出，除了索回自己所犯错误，导致其他保户可能蒙受的亏损，二司难以看到AIA从自己的错误中，到底蒙受什么亏损。
二司指出，这是一起涉及复杂事实和法律，需要通过审讯来解决的案件。不过，单单这个因素，不能阻止高庭发出临时庭令。
AIA声称它在这起索偿行动中，必须耗费大笔的律师和专家费，但二司指出，上诉庭决定发不发临时庭令，或在确定临时庭令的金额时，是不会考虑讼费和开销的。
“上诉人（指AIA）未必会打赢官司，因为是推测性的。”
二司赞同代表10人的律师郭茂华的说法，也就是即使AIA提出资产禁制令（Mareva injunction），受影响的10人也有权提取足够资金，来支付律师和其他开销。
不过，二司认为，即使AIA申请资产禁制令，有关申请也不会成功。
AIA指有关保单截至去年7月底的价值只有99万余元，如果是截至去年10月22日，则只有57万元左右。可是，二司认为，这样的计算是无法确定的，因为真正数据全凭“推测”。
它指AIA无法举出表面证据，说明它能索回比本金还多的款项，因此判10人能获得部分本金，而每人6万元是合理数额。
被列为第一和第二答辩人的黄承耀和陈秀梅是夫妇，两人曾是AIA的保险代理。被列为第三答辩人的林伟志（29岁，前初院教师）是这对夫妇的好友，也是本案焦点人物。
他向第一答辩人买下投资联结保单蒙受亏损，后来辞掉教职，全部时间研究与保单有关的不同基金，进行频密的基金转换。他的亲友知道他精准的投资眼光，纷纷加入。
10人以百万元为本金，在短短两年里赚了1770万元。当他们要AIA偿还部分收益时，却被指利用基金‘迟了一天’的价格赚取梦幻式利润，“不合理的自肥”。
去年9月、10月的金融风暴大大影响了投资表现，10人向高庭申请，要AIA在纠纷解决前，先把投资转换成现金，再把收益存放在第三者保管的账户。
AIA后来按指示卖掉基金，取得875万元现金。加上较早前的百万元收益，它和辩方李及李律师事务所的联名户头有超过1000万元。
SEE YOU IN COURT: AIA has sued the 10 policyholders, saying that they have conspired to exploit a mistake made by the insurer
10 strike it rich with AIA investment policies but...
Give us our $17.7m
No, you're unjustly enriching yourselves
TEN investors thought they struck it rich when their $1.06 million in AIA's investment-linked policies turned a huge profit in 2006.
By Crystal Chan
17 May 2009
TEN investors thought they struck it rich when their $1.06 million in AIA's investment-linked policies turned a huge profit in 2006.
But when they wanted to cash out their paper profit of $17.7 million last August, AIA refused to pay and instead sued them.
In the suit filed in the High Court, AIA is seeking damages from the 10 policyholders, alleging they had conspired to exploit the insurer's mistake in determining the bid prices for allowing them to switch funds.
Both sides have hired high-powered lawyers, with Senior Counsel Quentin Loh of Rajah & Tann representing AIA and Mr Quek Mong Hua of Lee & Lee acting for the policyholders.
The American insurance giant's claim rests on the allegation that it had made a mistake in valuing the funds by using one-day-old bid prices to effect the fund switches.
This had led to the defendants being given a larger share of the funds than what they were entitled.
As a result, AIA is accusing the group of 'unjustly enriching' themselves by $17.7m.
AIA allows policy-holders to switch funds as many times they like. The first four switches in a policy year are free, after which clients must pay $25 for each switch.
Among the 10 defendants are a married couple, MrWong Cherng Yaw, 34, and Madam Junie Tan, 30, who were AIA agents when the investment was made.
The other defendants include their parents and siblings.
AIA claims that they had breached their fiduciary duties and contracts as its agents.
AIA terminated Mr Wong's services on 20 Sep last year, three months after his wife resigned.
While the case has yet to go to trial, two defendants - Mr Wong's mother, Madam Liaw Chong Kiaw, and a close friend, Mr Lim Wee Chee - made an interim application to the court to get AIA to release some monies to them.
They filed affidavits to describe their financial problems as a result of the turn of events.
Mr Lim, a former junior college teacher, said he had invested about $275,000 and was now unable to repay his bank loans and faced bankruptcy.
He said he found it hard to get a job again as a full-time teacher because of his financial situation. He now teaches part-time for a much lower salary.
Madam Liaw invested $130,000, a big portion of her retirement money, and said she faced financial hardship if she could not get the money released by AIA.
In his affidavit, Mr Lim said he and the other policy-holders suffered huge losses in the first few months.
He said he started analysing and observing the performances of the various funds and the markets to which they were linked, then took calculated risks by switching funds to avoid adverse price fluctuations and to ride on positive trends.
Through more than 300 fund switches over two years or so, the defendants were able to make large profits.
During this time, Mr Lim and the other policyholders were able to make partial withdrawals from their policies. It was not mentioned in the court papers how much they withdrew.
Questioned by superior
Then in June 2007, Mr Wong's boss noticed the frequent fund switches and questioned him about them.
Mr Wong explained that he, Mr Lim and the others had switched funds after analysing the markets.
In May last year, Mr Wong was queried again on the same matter by a member of AIA's compliance department. He gave the same reply.
AIA continued to carry out the policyholders' instructions to switch funds.
The investments peaked on 7 Aug last year, with the policies valued at about $18m, giving the holders a paper gain of about $17.7m.
But the next day, when Mr Lim applied for a partial withdrawal, AIA refused.
Mr Wong, Madam Tan and Mr Wong's brother, Shyh Yaw, 37, also faced the same problem.
Their requests to switch funds were also rejected.
AIA later sent them a letter to say it had filed a suit against them.
The trial has been set for October.
While AIA assured the defendants on 19 Sep that the disputed monies would be held in escrow pending resolution of the suit, the global credit crunch has depreciated their initial profit.
By 9 Oct, the total value of their investments had plunged to $11m.
Justice Andrew Ang ruled in favour of the defendants and ordered AIA to pay them the remainder of their principal investment, which came up to about $1m.
AIA is appealing against the order. It will be heard on 22 May.