FUNG WAI KWONG WILLIAM v. THE INSIDER DEALING TRIBUNAL

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RULING

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Hon Leong JA (giving the ruling of the Court):

1. After a lengthy inquiry by the Insider Dealing Tribunal ("Tribunal"), the last day of said inquiry was on 25 May 2000, the Tribunal ordered that the appellant, William FUNG Wai-kwong, shall not for a period of three years from 1 June 2000 act as a director or take part in the management of a listed company and also pay a penalty and costs in a total sum of HK$17.8 million. The appellant was given three months to pay. The appellant appealed and his Notice of Appeal was filed on 18 July 2000. His application to fix a date for the appeal hearing and Notice of Setting Down the appeal should be filed at the latest on 25 July 2000 i.e. the last day of the 7-day period after the filing of the Notice of Appeal. The appellant failed to do so.

2. By a summons application dated 7 September, 2000, the appellant applied for a stay of execution of the order of the Insider Dealing Tribunal dated 26 June 2000 and for leave to file the application to fix a date for hearing of the appeal and Notice of Setting Down the appeal out of time.

3. In his affidavit in support of the application, the appellant said that the penalty and costs were substantial and his reputation and social status would be greatly impaired and damaged if the order was executed pending his appeal. In his second affidavit, the appellant stated that the reasons for the delay were, in short, the length and complexity of the inquiry, the need to find alternative counsel to represent him in the appeal and the appellant's illness which made it difficult for discussion with him on the case and to obtain instructions from him.

4. The appellant's main grounds of appeal are the Tribunal erred in drawing adverse inferences against him from the primary facts.

5. The respondent opposed the application on the ground that the appellant had failed to demonstrate special circumstances and good reasons for the Court to grant the stay or to allow the appeal to be set down out of time.

6. The starting point on stay of execution according to the authorities relied on by the respondent is that "there had to be a good reason for depriving a plaintiff from obtaining the fruits of a judgment" (per Gibson LJ in R v Mid Warickshire Licensing Justices, ex parte Patel, The Times Law Reports December 15, 1993) and "the appellant had to show some special circumstances which took the case out of the ordinary" (per Hobhouse LJ in the same case). Staughton LJ in Linotype-Hell Finance Ltd v Baker [1992] 4 All ER 887 said this in relation to the current practice in considering whether to grant such an application: "It seems to me that, if a defendant can say that without a stay of execution he will be ruined and that he has an Appeal which has some prospect of success, this is a legitimate ground for granting a stay of execution".

7. The appellant had not relied on inability to satisfy the order to support his application to stay and indeed, at the inquiry, it was specifically made clear to the Tribunal of Inquiry that the appellant did not rely on ability to pay the costs and penalty as a mitigating factor. The appellant had not shown what prospect of success he could have in his attempt to challenge the Tribunal's finding of facts, although the respondent agrees that there may be some prospect of success in the appeal. In my opinion, the grounds advanced by the appellant do not demonstrate a case out of the ordinary that a stay of execution should be granted.

8. As to the application to set down the appeal out of time, although the appellant's reasons for delay do not provide sufficient excuse for the long delay of nearly four months, nothing has been shown that the respondent has been prejudiced by the delay. In my view, granting leave for setting down of the appeal out of time with costs to the respondent would do justice in the present case.

9. Accordingly, the application for a stay of execution of the order of the tribunal is dismissed with costs to the respondent.

10. The application for leave to set down the appeal out of time is granted. The appellant is to file the application to fix a date for hearing of the appeal and to give Notice of Setting Down of the appeal within 7 days hereof but the costs of this application shall be to the respondent.