懲罰一個交易員起不了威懾作用
Before his conviction on Monday, Tom Hayes, a 35-year-old former UBS and Citigroup derivatives trader, argued he had merely been taking part in a widespread practice of manipulating the Libor benchmark of interest rates. Sentencing him to 14 years’ imprisonment, Mr Justice Cooke saw things differently. “The fact that others were doing the same as you is no excuse,” he said.
在週一被定罪之前，35歲的前瑞銀(UBS)和花旗集團(Citigroup)衍生品交易員湯姆眠耶斯(Tom Hayes)辯稱，他只是參與了操縱倫敦銀行間同業拆借利率(Libor)的普遍行爲。然而，庫克法官(Justice Cooke)不這麼看，他在判海耶斯14年徒刑的時候說：“其他人與你做同樣的事不是藉口。”
The past five years have seen the exposure of a litany of financial wrongdoing yet a dearth of criminal prosecutions, generating uproar that has now been heard. Hayes’s conviction shows that prosecutors and judges are serious about punishing financial crime — and, they imagine, thereby preventing it.
過去五年裏，我們看到金融領域的不良行爲被連篇累牘地曝光，卻很少看到刑事起訴。這種狀況催生了現在已經被有關方面聽到的公憤。海耶斯被定罪表明，檢察官和法官對於懲罰金融犯罪是認真的。而且，按照他們的想象，此舉會阻止金融犯罪。
But their new zeal might not matter much. Everyone might be doing it, but not everyone can be prosecuted or jailed. Even if another dozen traders are sentenced, most of the people who manipulated Libor will go free.
然而，他們這種新的熱情可能不會有太大實效。也許大家都在這麼做，卻不是每個人都會被提起公訴或鋃鐺入獄。就算再判十幾名交易員入獄，多數操縱Libor的人還是會逍遙法外。
Traders will process news of Hayes’s sentence through the lens of economics more than ethics. Yes, 14 years is a long time, but the probability of prosecution is low — arguably even lower than before, with so many resources dedicated to investigating past wrongdoing. You are less likely to be caught speeding after you see a car pulled over by a police officer than you were before.
對於海耶斯被判刑的新聞，交易員們將會透過經濟（而不是道德）的棱鏡來觀察。沒錯，14年刑期是很重，但是被起訴的概率很低——甚至可以說現在比過去還要低，因爲如此多的資源被用於調查過去的不當行爲。在你看到一名警官示意一輛汽車靠邊停車之後，你被抓住超速的機率低於看到這一幕之前。
And the evidence wielded by prosecutors provides a road map of what not to do. Hayes left a trail of electronic evidence. Lesson: do not ask a bank, in writing, to skew Libor “too low for the next few days” and then promise to “return the favour as when you need it”. You do not have to recognise the illegality of such requests to know that they might one day prove embarrassing.
而且檢方所用的證據爲交易員們提供了反面教材。海耶斯曾留下大量電子證據的痕跡。這其中的教訓是：不要以書面方式要求一家銀行“在今後幾天內壓低”Libor，然後承諾“在你需要時還這個人情”。你不需要認識到這種要求的非法性，也會知道它們可能會在某一天令人尷尬。
Hayes co-operated with the government. Another lesson: keep your mouth shut. Hayes spoke to prosecutors on the record for 82 hours over several months. This may not have been wise. We have yet to learn the fate of other traders who allegedly manipulated Libor and refused to talk, but it is a fair bet they will one day congratulate themselves on their silence.
海耶斯曾與政府合作。這就帶來了另一個教訓：沉默是金。在幾個月期間，海耶斯在有正式記錄的情況下與檢察官交談，總共長達82小時。這麼做或許不明智。我們還不知道其他涉嫌操縱Libor但拒絕開口的交易員的命運，但是一個合理的猜測是，他們某一天會慶幸自己保持了沉默。
A conviction that leans so heavily on the defendant’s missteps is unlikely to be much of a deterrent. And the most important lesson from Hayes’s conviction is this: “Everyone’s doing it” is not merely an excuse, but also a temptation.
如此嚴重依靠被告失誤的定罪，不太可能有很大威懾力。而海耶斯被定罪的最重要教訓是：“每個人都在這麼做”不僅是一種藉口，還是一種誘惑。
Manipulating Libor was not a criminal scheme of Hayes’s own conception. According to regulators, bankers at UBS were already submitting requests to move the bank’s Libor submissions up or down when he joined in 2006. Hayes told a close friend he found the practices unsettling, but felt he was not in a position to question what they were doing.
在海耶斯自己的理念中，操縱Libor並不是一種犯罪計劃。根據監管機構的說法，海耶斯2006年加入瑞銀時，該行的銀行家已經在請求上調或下壓該行提交的Libor。海耶斯曾向一位密友表示，他覺得這種做法令人不安，但覺得自己不宜質疑他們的操作。
“I thought it was weird,” he said, “but that’s how they did it.”
他說：“我覺得這很奇怪，不過這就是他們的操作方式。”
Prosecution is a good way of deterring people from doing things that they understand to be crimes. But financial fraud is not like murder or bribery or even drug dealing. The transactions are complicated and can appear morally ambiguous. Bankers generally exploit information advantages and dodge regulations, and the lines between legitimate and criminal can be blurry.
要嚇阻人們不去做他們知道是犯罪的事，公訴是一種很好的威懾方法。然而金融欺詐不像謀殺、行賄、甚至販毒。相關交易是複雜的，道德上可能顯得模棱兩可。銀行家們普遍利用信息優勢並規避監管，合法行爲與犯罪行爲之間的界線可能是模糊的。
At various stages, both Hayes and his employers seemed to see what he was doing as perfectly legal, even if morally wrong. Hayes did not hide his views about Libor, and he apparently even changed his Facebook status to show which way he wanted the benchmark to move. The year before he left UBS, the bank paid him nearly $2m; his boss cited his “strong connections with Libor setters in London. This information is invaluable for the derivatives books.” Hayes later left for Citigroup, which offered to more than double his pay and permitted him to risk up to $3m for every basis point that Libor moved.
在各個階段，不論海耶斯還是他的僱主，似乎都認爲他的所作所爲是完全合法的，即便在道德上是錯的。海耶斯並未隱瞞他對Libor的觀點，他顯然甚至會更改他的Facebook狀態，說明他希望這一基準利率向哪個方向移動。就在他離開瑞銀前一年，該行向他支付了近200萬美元，他的老闆提到他“與倫敦的Libor設定者建立了密切聯繫。對於衍生品業務來說，這類信息是無價的”。後來海耶斯去花旗集團任職，該行向他提供了逾雙倍的薪水，並允許他爲Libor變動的每一個基點押上最高300萬美元。
No matter how many others were doing it, Hayes could have said no to the lucrative yet unethical behaviour of which he has been convicted. That would have carried costs and required courage. We hope that everyone — from our children to derivatives traders — will stand up to wrongdoing. Unfortunately, many traders who learn about Hayes’s conviction are more likely to go along with it.
不論有多少其他人在這麼做，海耶斯本可以向這類有利可圖但不道德的行爲說不——他最終因爲這種行爲被判了刑。這樣的行爲將帶來代價，還需要勇氣。我們希望每個人（從我們的子女到衍生品交易員）都會與不當行爲作鬥爭。不幸的是，對許多得知海耶斯被判刑的交易員來說，他們更有可能繼續從事不當行爲。
