SECURITIES AND FUTURES COMMISSION v. WILLIAM TOMITA

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Press Summary (Chinese)

FACV Nos 10, 11, 12 and 13 of 2012

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NOS. 10, 11, 12 AND 13 OF 2012 (CIVIL)

(ON APPEAL FROM CACV NO. 178 OF 2011)

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REASONS FOR JUDGMENT

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Chief Justice Ma:

1.  I agree with the judgment of Lord Hoffmann NPJ.

Mr Justice Chan PJ:

2.  I agree with the judgment of Lord Hoffmann NPJ.

Mr Justice Ribeiro PJ:

3.  I agree with the judgment of Lord Hoffmann NPJ. 

Mr Justice Bokhary NPJ :

4.  I agree with the judgment of Lord Hoffmann NPJ.

Lord Hoffmann NPJ :

5.  The appellants are a New York hedge fund called Tiger Asia Management LCC and three of its officers. Nothing turns upon their separate identities and I shall call them all “Tiger”.  The respondent is the Securities and Futures Commission (“SFC”) which alleges that in December 2008 and January 2009 Tiger entered into three transactions which contravened the prohibition on insider dealing in s 291(5) of the Securities and Futures Ordinance (“the Ordinance”).  On 5 August 2009 it applied to the Court of First Instance for various forms of relief against Tiger, pursuant to s 213 of the Ordinance.  I quote the relevant parts of subs (1):

“(1) Where - (a) a person has (i) contravened – (A) any of the relevant provisions [which include section 291(5)] the Court of First Instance, on the application of the [SFC] may, subject to subsection (4), make one or more of the orders specified in subsection (2).”

6.  Subsection (2) contains a list of the classes of orders which can be made, including injunctions, orders requiring transactions to be undone, orders declaring contracts to be void and so on.  Subsection (4) says that before making an order under s (1), the Court of First Instance must satisfy itself that “it is desirable that the order be made, and that the order will not unfairly prejudice any person”. 

7.  The SFC asserts that (a) Tiger has contravened s 291(5); (b) the orders it seeks fall within the classes listed in subs (2); and (c) it can satisfy the Court of the requirements of subs (4).

8.  Whether any of these assertions is correct has not yet been investigated because on 20 September 2010 Tiger issued a summons to strike out the SFC’s proceedings on the ground that the Court of First Instance has no jurisdiction to decide the question which is a necessary condition for making any order under s 213(1)(a)(i)(A), namely, whether Tiger has contravened s 291(5).  This is, at first sight, a somewhat startling proposition, because ordinarily, if a power conferred upon a court is expressed to be conditional upon something having happened, the court has jurisdiction to decide whether it happened or not.  It was however accepted by Harris J.  The Court of Appeal (Tang VP, Kwan and Fok JJA) took a different view and Tiger now appeals to this Court.

9.  It should be emphasised that although s 213 also confers jurisdiction to make orders (subject to the overriding requirements of desirability and lack of prejudice in subs (4)), on the ground that it “appears” to the SFC that a contravention may have occurred, this is not an issue in the present appeal.  The question for us is whether the SFC should be allowed to prove that Tiger actually engaged in insider dealing.

10.  I entirely agree with the reasoning and conclusions of Tang VP, who gave the judgment of the Court of Appeal, and would have been content simply to adopt his opinion as my own.  However, out of respect for the gallant submissions of Lord Grabiner QC, who undertook the appeal on behalf of Tiger, I shall add some further observations.

11.  Tiger’s argument is founded upon the fact that the Ordinance creates what has been called a “dual procedure” for penalizing various forms of market misconduct, including insider dealing.  One route is a criminal prosecution under Part XIV of the Ordinance, either brought on indictment by the Secretary for Justice or summarily by the SFC itself.  On conviction on indictment, the offender may be sentenced to imprisonment for up to 10 years or a fine of up to $10 million. The other route is civil proceedings under Part XIII before the Market Misconduct Tribunal (“MMT”).  The Tribunal’s functions include determining whether any market misconduct has taken place and the identity of any person who has engaged in it: s 252(3).  A person identified as having engaged in market misconduct may be subjected to various civil penalties listed in s 257(1), such as disqualification from being a director of a listed company, disqualification from dealing in securities for up to 5 years, payment to the Government of the profit gained or loss avoided by the market misconduct, payment of the costs of the investigation and a recommendation that he or she be disciplined by the appropriate professional body.

12.  Tiger points out that these two procedures, criminal and civil, are mutually exclusive.  If criminal proceedings have been instituted, no proceedings may be brought before the MMT: s 283.  Conversely, if proceedings have been started before the MMT, the defendant may not thereafter be prosecuted: s 307.

13.  So far, so good. The difficulty for Tiger, and Lord Grabiner QC, comes at the next step, which is to argue that because, in this case, a prosecution of Tiger under Part XIV or proceedings before the MMT under Part XIII would each involve a determination of whether it had contravened the prohibition on insider dealing and because the two procedures are mutually exclusive, it must mean that they are jointly exhaustive of the procedures by which such a determination may be made.  That simply does not follow.  Whether there are other provisions in the Ordinance which also confer jurisdiction to make such a determination depends upon the construction of those provisions.

14.  Thus Lord Grabiner QC accepts that s 305(1), which confers a right to sue for damages upon a person who has suffered loss as a result of a contravention of the market misconduct provisions of Part XIV, confers jurisdiction upon the Court to decide whether a contravention has taken place.  If that is true for s 305(1), why not for s 213?  In s 305(6) to (8) it is provided that a finding of market misconduct by the MMT is admissible and prima facie evidence in a private action for damages under subs (1).  But there is nothing to say that, in the absence of such a finding, no action may be brought.  Lord Grabiner QC points to s 305(4), which says that an action for damages may be brought under subs (1) “even though the person against whom the action is brought has not been charged with or convicted of an offence by reason of the contravention”.  There is, he says, no such saving provision in s 213.  I must admit that I find subs (4) rather puzzling.  There was a similar provision in s 141(2) of the Securities Ordinance 1974, when there could have been no question of displacing an exhaustive “dual procedure”: see paras 19 to 21 below.  There is no general rule that the exercise of a right of action for loss caused by a criminal act is dependent upon there having been a prosecution.  Even without subs (4), I do not see how any such limitation could have been implied.  Perhaps it was a rusty weapon in the draftsman’s armoury which used to be employed to counter the obsolete rule that a private law action for damages based upon a felonious act was not maintainable so long as the defendant had not been prosecuted or a reasonable excuse shown for his not having been prosecuted: see Smith v Selwyn [1914] 3 KB 98.  Legislative draftsmen tend to be vigilant to guard against all contingencies.  If that is the explanation for subs (4) (and I can think of no other), it would not feature in s 213 because that section is concerned with proceedings by a public authority and not a private law action for damages.  Section 305 therefore in my opinion contradicts the theory that prosecution or MMT proceedings are the exhaustive means for determining whether there has been a contravention.

15.  Approaching s 213(1) simply as a matter of construction, Lord Grabiner QC’s submission requires us to construe the words “where a person has contravened any of the relevant provisions” as meaning “where a person has been found by a criminal court or the MMT to have contravened any of the relevant provisions”.  There seems to me no basis for the insertion of these words.  As Tang VP said, if that was what was meant, the legislature would have said so.  As against the plain meaning of the words, Lord Grabiner QC advances arguments from a priori incredulity.  It is inconceivable, he says, that the legislature would have given the SFC power to avoid, sidestep, finesse, evade and set at naught all the protection accorded to defendants in the criminal courts or the MMT by simply going to the Court of First Instance under s 213.  Only the Secretary for Justice, who will independently review the merits of a prosecution, can bring criminal proceedings on indictment and Tiger will have the full panoply of protection accorded to a criminal defendant.  On the other hand, in proceedings under s 213, the SFC is subject to no review, can use evidence obtained from defendants under statutory compulsion and does not have to satisfy the criminal standard of proof.  In proceedings before the MMT there are fewer protective rules but the sanctions which can be imposed are limited. Furthermore, such proceedings will exclude the possibility of a criminal prosecution, which proceedings under s 213 will not.

16.  The answer to these arguments is that the remedies provided under s 213 serve a different purpose from the penalties which can be imposed by a criminal court or the MMT.  The latter are imposed in the general public interest, avowedly to punish in the case of criminal sanctions and, in the case of the MMT, as near as one can get to punishments without running the risk of the proceedings being categorized as criminal for the purposes of arts 10 and 11 of the Bill of Rights: see Koon Wing Yee v Insider Dealing Tribunal (2008) 11 HKCFAR 170.  Section 213, on the other hand, provides remedies for the benefit of parties involved in the impugned transactions.  They include injunctions and the appointment of receivers to secure property with a view to recovery by the victims of market misconduct, orders that particular transactions be unwound, orders declaring particular transactions to be void or voidable.  In these proceedings the SFC acts not as a prosecutor in the general public interest but as protector of the collective interests of the persons dealing in the market who have been injured by market misconduct.  Proceedings under s 213 are the public law analogue of actions for damages by individuals under s 305 rather than a substitute for a criminal prosecution or proceedings before the MMT.  They are plainly civil proceedings and therefore do not attract the protection accorded to criminal defendants.

17.  Some of the orders sought by the SFC include declarations that Tiger has contravened the prohibition on insider dealing.  That, said Lord Grabiner QC, is unacceptable on two grounds.  First, (e) is the only paragraph of s 213(2) which gives a power to make a declaration.  It says that the court can declare a contract to be void.  It therefore follows that no other kind of declaration can be made.  This is not a point which arises at the moment, since we are concerned with jurisdiction rather than the form of the orders that can be made.  But I will say that arguments of this expressio unius variety are often unpersuasive (compare National Grid Co plc v Mayes [2001] 1 WLR 864, 878) and I find it hard to see why, if a court has found something to be the case, it should not make a declaration to that effect if it would be appropriate and useful to do so.  The second objection was that a civil court should only in exceptional circumstances make a declaration that certain conduct is or is not (or will or will not be) a criminal offence.  He referred us to the well-known observations of Viscount Dilhorne in Imperial Tobacco Ltd v Attorney-General [1981] AC 718, 742.  But that is to misunderstand the principle stated in that case.  Imperial Tobacco was asking for a declaration that promoting their Spot Cash scheme would not be a criminal offence, for the purpose of forestalling a prosecution or guiding a judge or magistrate at a criminal trial.  But the SFC is not seeking a declaration that Tiger has committed a criminal offence.  It is seeking a declaration that it has done acts which found jurisdiction under s 213 but which also happen to be criminal offences.  The question of whether Tiger has committed a criminal offence remains entirely a matter for the criminal court.  There is no question of the civil court’s declaration being admitted or in any way influencing a criminal trial.  If there were a prospect of such a trial, the court would have jurisdiction to put in place protective measures to ensure that publication of materials arising in the civil proceedings did not prejudice the accused.  The effect of a declaration by the Court of First Instance under s 213 that Tiger has contravened the prohibition on insider dealing is therefore no different from a finding by a civil court that Tiger is liable on the same grounds for damages under s 305.

18.  Lord Grabiner QC says that in that case, there is a danger of inconsistent decisions.  The Court of First Instance may find a contravention under s 213 but the criminal court, or even the MMC, might find no such contravention proved.  That is true.  These things happen.  A jury acquitted O J Simpson of the murder of his girl friend but he was found liable in civil proceedings for wrongfully causing her death.  Inconsistency is always a possibility when different tribunals have jurisdiction to decide the same issue.  But that is no reason to say, in the face of plain contrary language, that the legislature must have intended to confer jurisdiction upon only one tribunal.

19.  Finally, I should say something about the legislative history, which Mr Benjamin Yu SC, on behalf of the SFC, has set out in his printed case.  Section 213 can trace its origins back to the Securities Ordinance 1974, which provided that certain forms of market misconduct were to be criminal offences.  Section 141 was the equivalent of s 305 of the current Ordinance, giving a right to sue for damages for contraventions of the market misconduct provisions.  And s 144 provided:

“Where, on the application of the Commissioner [for Securities], it appears to the Court that a person has contravened this Ordinance … the Court may, without prejudice to any orders it would be entitled to make otherwise than pursuant to this section, make one or more of the following orders …”

20.  There followed a list of orders, such as injunctions, the appointment of a receiver and a declaration that a contract relating to securities is void or voidable, all of which are now contained in s 213.  At that time there was no MMT.  The only remedies for market misconduct were a criminal prosecution, a civil claim for damages or proceedings under s 144.  There would have been no room for the “dual procedure” argument and I should have thought it was impossible to argue that no proceedings could be taken under s 144 until there had been a criminal conviction.

21.  Similar powers were later created by s 55(1) of the Securities and Futures Commission Ordinance of 1989 and s 13 of the Leveraged Foreign Exchange Trading Ordinance of 1994.  All this piece meal legislation which governed different forms of financial market trading was brought together in the current Ordinance, with s 213 being an improved and enlarged version of a jurisdiction which had existed since 1974.  At the same time, in recognition of the fact that criminal prosecutions for market misconduct are often dilatory, expensive and unpredictable, the Ordinance created the alternative of proceedings before the MMT.  I find it hard to see why this should impliedly have restricted a jurisdiction that had existed under the previous versions of s 213.  The two jurisdictions seem to me entirely unconnected.

22.  In SFC v C [2009] 4 HKLRD 315 the question was whether an injunction under s 213(2)(c) was, like a Mareva injunction, ancillary to a substantive claim such as a claim before the MMT for disgorgement of profits, or whether it was “free-standing”.  Le Pichon JA said:

“… relief under section 213(2) is entirely free-standing and is not contingent or conditional on there being proceedings in the Market Misconduct Tribunal. Further, while an order under section 213(2)(c) is not an end in itself in that, sooner or later, the assets frozen will have to be dealt with, subsection (9) enables the court ‘to reverse, vary or discharge’ such an order. Thus, the relief sought in section 213 proceedings is entirely self-contained.”

23.  Harris J said that Le Pichon JA was not directly addressing the point arising before him, but that if “free-standing” and “self-contained” implied that the SFC could take proceedings under s 213 without there having been any prosecution or MMT proceedings, he did not agree.  It is true that Le Pichon JA (who was very familiar with this legislation and its predecessors, having been Deputy Chief Counsel to the SFC before her appointment as a judge) was not dealing with the submission made by Tiger in this appeal.  But I think it necessarily follows from her reasoning that she would have rejected it.  In fact she would probably have been astonished to hear the argument advanced.  I think she was right.  For these reasons I agreed that we should dismiss these appeals with costs.

Chief Justice Ma:

24.  At the conclusions of submissions made on behalf of the appellants (the 1^st to 4^th respondents in the underlying proceedings), the Court dismissed the appeals with costs.  I agree with the reasons for doing so contained in the judgment of Lord Hoffmann NPJ.