KOON WING YEE v. THE SECURITIES & FUTURES COMMISSION

CACV 369/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 369 OF 2007

(ON APPEAL FROM HCAL NO. 7 OF 2007)

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.  This was an application for leave to appeal to the Court of Final Appeal and an application for a stay pending that appeal.  At the conclusion of the hearing these applications were refused.

2.  This court dismissed the appeal from the judgment of Saunders J, who had dismissed the applicant’s application for judicial review, primarily on the ground that the application was premature.  In the reasons for judgment handed down by this court on 3 September 2008, this court upheld the decision in the court below, holding that the application for judicial review had been premature and hypothetical.  This court also pointed out that the application, as it came to be framed during the course of the hearing in the court below, was not supported by evidence.

3.  On this application Mr John J E Swaine, who appeared with Sir John Swaine SC, argued that what was sought to be challenged was, first and foremost, the notice to attend an interview and answer questions.  As was pointed out in the judgment the original grounds for challenging the notice were abandoned.  In so far as the notice, in itself, is challenged, that challenge appears to be based on what might or might not happen in the future.  It thus remains premature and hypothetical.

4.  In so far as questions are sought to be raised about the Market Misconduct Tribunal, again, unless and until there are any proceedings before that Tribunal, those would appear to be premature and hypothetical.  The same considerations apply in relation to the questions sought to be raised in relation to whether a person who only has a hypothetical interest has a ‘sufficient interest’ to enable proceedings for judicial review to be sustained.

5.  In short, I do not see that questions have been raised which are fit for this court to give leave to the appellant to appeal to the Court of Final Appeal.  In those circumstances, there is no basis for this court to grant a stay.

Hon Le Pichon JA:

6.  I agree with the Reasons for Judgment given by Rogers VP.

Hon Stone J:

7.  I agree with the Reasons for Judgment of Rogers VP.