The Singapore account. The plaintiff's investments were to be held in the Singapore account.

The Hong Kong account. This Hong Kong account functioned essentially as a credit facility account, which would allow the plaintiff to draw down loans to fund the purchases of investments in his Singapore account. The defendant required that a Hong Kong-domiciled account be used if the plaintiff wished to obtain a loan facility from the defendant.

A total of 16 investments under the Singapore account and loans drawn down from the Hong Kong account to finance those investments were not authorised by him (the unauthorised investments claim).

The plaintiff also alleged that the defendant had breached its duty owed to the plaintiff, in contract and/or tort, by failing to advise him that it was imprudent to have maintained the portfolio that he was holding during the period of the Asian financial crisis (the advisory claim).

The plaintiff was not a conservative investor. The plaintiff attempted to picture himself as a conservative and risk adverse investor who would not have agreed to the investments allegedly made by the defendant without his authority. However, he failed to produce any credible evidence to support his assertion that he had given the defendant a conservative investment mandate. The court also noted that during cross-examination, the plaintiff conceded that he had opened the Singapore account with the defendant because he wanted to pursue a different investment strategy from the low-to-medium risk investment policy which he had adopted for his other accounts.

Delay in complaints. The court found it incredible that the plaintiff chose not to complain to the defendant as soon as he found out that supposedly unauthorised investments had been made on his behalf and that loans had been made to his account. The plaintiff was not able to provide an adequate explanation for the delay.

Inconsistent conduct. The plaintiff's conduct throughout the relevant period was completely inconsistent with his claim that the investments were unauthorised. For instance, the plaintiff had conceded that he had gone through the account statements for the Singapore account at the monthly meetings and was therefore aware of the securities that were held in that account. He even admitted that it would have been apparent to him that loans were indeed being drawn down from the Hong Kong accounts to finance the purchase of the investments without being shown any of the Hong Kong account statements. The plaintiff had even remitted some funds to the defendant for the purpose of servicing part of the loans in his Hong Kong account. The court was of the view that the plaintiff would not have repaid the loans in part if he had not authorised those investments.

Extent of the plaintiff's financial experience and sophistication. On the facts, the court held that the plaintiff was not an inexperienced and unsophisticated client who had to rely entirely on the defendant for advice relating to the management of his investment portfolio. For instance, the court noted that the plaintiff was a successful and wealthy businessman, who clearly understood the types of risk involved.

Contractual context. The court noted that none of the relevant contractual terms expressly provided for an advisory relationship between the parties. Further, the mere duty to recommend securities does not, without more, give rise to a further and continuing duty to give advice with regards to the management of the investment portfolio.

Actual role played by Ms Ching (including the purpose for which she was giving the plaintiff recommendations) and extent of the plaintiff's reliance on Ms Ching. It was undisputed that Ms Ching only provided recommendations of investment to the plaintiff at the monthly meetings and that she did not provide any other form of advice. The plaintiff further conceded that he did not rely on any of Ms Ching's recommendations. As such, the court held that there was no basis for the plaintiff to argue that the defendant had voluntarily assumed any responsibility for giving investment advice to the plaintiff on an ongoing basis.

The defendant's internal documents showed that the plaintiff purportedly gave instructions at the exact same time, or 9.00am, on every single occasion. The defendant's assistant vice-president at the material time conceded that the times recorded in those internal documents probably did not reflect the actual time that the instructions were received.

Although it was standard procedure for a private banking officer to fill in an order form for the trading desk whenever the officer wished to transact a security, no such order forms were filled by Ms Ching.

Although phone conversations were supposed to be recorded as a matter of practice, the defendant could not produce any tape recordings.

Ms Ching admitted that she failed to keep a complete record of all the meetings that had taken place with the plaintiff.

Ms Ching's handwritten minutes tended to be very brief and almost never indicated the exact dates of those meetings with the plaintiff.