韩飞龙案令人关注中国尽职调查行业

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.

韩飞龙(Peter Humphrey)上周被判犯有非法获取中国公民个人信息罪，这起案件受到银行、对冲基金和私募股权公司的密切关注，目的是寻找在中国开展尽职调查的线索。

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.

韩飞龙是英国人，他与妻子在中国共同经营一家风险咨询公司，2013年在上海被捕。他的被捕震惊了跨国公司和金融集团——以及它们的律师和私人调查员——他们不得不自问：中国是否在收紧针对私人调查的模糊规则？

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.

随着外国企业纷纷加紧对中国的关注，它们依赖于企业风险公司——比如德安华(Kroll)和控制风险(Control Risks)，以及更小的精品公司，如韩飞龙的中慧(ChinaWhys)——来从事尽职调查，然后就中国的首次公开发行(IPO)或在华投资提供建议。韩飞龙的被捕之所以引发关注，是因为上海警方有好几个月没有提供任何解释。

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.

企业风险公司波塞冬研究(Poseidon Research)的首席执行官韦利萨里奥斯•卡图拉斯(Velisarios Kattoulas)表示，在中国有较大业务的风险咨询公司现在在客户报告中有所保留，因为它们感到自己在这个国家“非常脆弱”。韩飞龙出事后，很多尽职调查公司改变了做法，以免被发现它们有购买政府记录的行为，因为这种行为可能被视为非法获取。“这一切发生得太快。很多人都忙着碎纸，”卡图拉斯表示。

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.

某私募股权集团的总法律顾问表示，在韩飞龙案发之前，他的公司经常从风险企业获得警方档案。他的公司已停止接受这样的信息，此类信息有时包括户口——它是中国的家庭登记文件，有助于识别身份。

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”.

有几个人说，韩飞龙的案件并没有对大公司的经营方式产生巨大影响。具有丰富中国经验的一名人士称，美国企业早就格外谨慎，因为它们担心违反美国的《反海外腐败法》(FCPA)，该法禁止贿赂政府官员。但此人表示，为美国企业进行在华调查的某些精品公司仍付诸高风险操作，因为它们想要“让客户满意”。

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.

韩飞龙被拘留后，企业纷纷担心风险分析所受的影响。但有几个人表示，调查员和律师的担忧后来减轻了，因为他的案件似乎与针对葛兰素史克(GSK)的调查有关，该公司聘用他调查一个举报者，该举报者引发政府对这家英国制药企业展开广泛调查。

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”.

一名具有大量中国经验的调查员表示，问题的一部分在于韩飞龙被判犯有的罪行在中国是一个灰色地带；中国的一些隐私和安全法律包含了这样的条文，其实质内容就是“我们认为什么敏感就什么敏感”。

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.

尽管韩飞龙的案件令人关注中国的尽职调查行业，但专家们表示，进行某些类型调查的难度本来就已加大。企业风险专家韦启贤(Steve Vickers)表示，与一个卖空者有联系的研究公司浑水(Muddy Waters)发表一系列报告、令人对嘉汉林业(Sino Forest)等多家中国企业产生疑问之后，中国开始收紧获取信息的规则。

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.

尽管中国在2009年收紧了隐私法律，但三年后，调查员和研究人员仍可付费请能够查看国家工商行政管理总局记录的律师，来获取有关人士身份证的复印件。但在彭博社(Bloomberg)和《纽约时报》(New York Times)在2012年以工商部门存档的申报资料为依据，报道中国领导人亲属的财富之后，中国进一步收紧了管控。

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.

在几个因素加上韩飞龙案使得尽职调查更难进行的同时，上述具有丰富中国经验的调查员表示，业内还存在其他问题。比如，一些银行允许银行家在没有内部合规和法务团队参与的情况下与外部风险顾问沟通。

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.

他说，另一个问题是一些尽职调查公司使用所谓的“专家网络”，这里面存在的一个危险是，这些信息的买家根本不知道信息的来源。“（在华）尽职调查的水平参差不齐。我还是要说‘投资者要当心，’”他表示。