SECURITIES AND FUTURES COMMISSION v. PACIFIC SUN ADVISORS LTD AND ANOTHER

FAMC No. 39 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 39 OF 2014 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM HCMA NO. 490 OF 2013)

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DETERMINATION

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Mr Justice Ribeiro Ag CJ:

1. This application for leave to appeal out of time is brought by the applicant company which, with the 2^nd respondent, was charged by the SFC[1] with offences under section 103(1)(b) of the SFO[2] which prohibits the issuing of advertisements and invitations in relation to investments in certain cases.  The Magistrate[3] dismissed the summonses, holding that the communications attributable to the defendants fell within an exemption to liability under section 103(1)(b) provided by section 103(3)(k) of the SFO.

2. On an appeal brought by the SFC by way of Case Stated, the Magistrate’s decision was reversed and the case remitted to be disposed of by him in accordance with the law as stated by the Judge.[4]

3. The applicant submits that the law so stated raises questions of great and general importance, and seeks certification of the following questions:

(a)    Whether for section 103(3)(k) of the [SFO] to be applicable, it must be seen from the advertisement, invitation or document itself, that it is, by its terms, confined to professional investors to the exclusion of other members of the investing public;

(b)    Whether the carrying out of a screening process to ensure that all investors investing in the collective investment scheme, are professional investors is irrelevant.

4. We are satisfied that these questions are reasonably arguable and of the requisite importance and that leave to appeal should be granted in respect thereof. 

5. Following upon the Judge’s remitter, the Magistrate convicted the two defendants.[5] We understand from counsel that those convictions are under appeal.  To avoid unnecessary expense, we direct that the pending appeal be stayed pending determination of the appeal in this Court or until further order.

6. We are also satisfied that time for making this application should be extended and that the 2^nd respondent should be joined as a party to the appeal. 

7. We accordingly certify the aforesaid questions and grant the respondents leave to appeal in respect thereof.