LAU LUEN HUNG THOMAS v. INSIDER DEALING TRIBUNAL AND ANOTHER

HCMP 1017/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1017 OF 2008

(ON AN INTENDED APPEAL PURSUANT TO SECTION 31 OF THE
SECURITIES (INSIDER DEALING) ORDINANCE CAP. 395 FROM A
DETERMINATION OF THE INSIDER DEALING TRIBUNAL IN
RELATION TO ASIA ORIENT HOLDINGS LIMITED)

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BETWEEN

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REASONS   FOR   JUDGMENT

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Hon Ma CJHC:

1.   I agree with the reasons contained in the judgments of Tang VP and Stock VP for our decision refusing leave to appeal.

Hon Tang VP:

2.   This is an application for leave to appeal to the Court of Final Appeal from our decision refusing an extension of time to appeal to this court. In refusing leave we followed the decision of the Court of Final Appeal in HKSAR v Hung Chan Wa & Anor [2006] 9 HKCFAR 614.

3.   At the heart of the application is the fact that the applicant has paid a fine of $15 million.

4.   In my view no question of great general or public importance is involved. The formulated questions are artificial. In substance, the question raised is whether the fact that a person who has been fined on an understanding of the law which an authoritative judgment has overturned, but cannot obtain a refund unless he is given an extension of time to appeal, constitutes a sufficiently rare and exceptional circumstance such that an extension of time to appeal should be granted. So understood, it is clear that no leave to appeal should be granted.

5.   One of the questions said to be of great general or public importance reads:

“c. Does that fact that the Applicant has a cause of action to recover money paid pursuant to an invalid fining order of the 1^st Respondent, on the basis that it is money paid under mistake of law or paid pursuant to an ultra vires demand made by a public authority and, the fact that a 6 year limitation period applies (as opposed to the 28 day limit prescribed by Order 59, rule 4 of the Rules of the High Court), constitute a rare and exceptional circumstance which warrants the grant of an extension of time in which a person may appeal so as to quash the invalid order and recover their money.”

6.   It seems to be the applicant’s primary position that he has a claim for the recovery of the fine as money paid under a mistake whether or not the order is set aside. If that is so, I do not understand how the fact that the limitation period is 6 years is relevant to whether extension of time to appeal should be granted. However, it is said in the alternative that the applicant might have no civil cause of action at all unless the order is set aside (since a judgment of the court will bar the civil claim). But that is not because the claim has become time barred but because the applicant has no cause of action by reason of the court’s judgment. In that case I do not understand the relevance of the fact that if the applicant had a cause of action, the period of limitation would have been 6 years, but that he only had 28 days to appeal under Order 59 rule 4: in order to set aside the relevant judgment which stands in the way of the civil claim, leave to appeal out of time is required, and here, the relevant period within which an appeal had to be brought was 28 days. From start to finish, the matter remains one for the application of the principles laid down in Hung Chan Wa to all the circumstances of this matter.

7.   This is also not an exceptional case for leave on the “or otherwise” ground. It is an attempt to appeal from an exercise of discretion.

8.   For these reasons, leave was refused.

Hon Stock VP:

9.   Whatever the merits of the question might be in a vacuum, the application ought not be divorced from the facts of the particular case in which a conscious decision was taken upon legal advice not to take the point (see judgment of 9 April 2009, para. 47). Accordingly I agreed that leave should be refused.