LAU LUEN HUNG THOMAS v. INSIDER DEALING TRIBUNAL AND ANOTHER

HCMP 1751/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1751 of 2007

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

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REASONS FOR JUDGMENT

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Hon Ma CJHC :

1.  On 9 May 2008, this Court dismissed with costs the Applicant’s application for leave to appeal to the Court of Final Appeal made under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap.484.  We further said that the reasons for our judgment would be handed down.

2.  By a judgment given on 28 February 2008, we allowed an appeal from the decision of Cheung JA in which he had granted an extension of time to the Applicant to appeal from a decision of the Insider Dealing Tribunal (“the IDT”).  The relevant IDT decision had identified the Applicant as an insider dealer and various orders were made against him, including a fine of $15 million.  This fine was imposed under section 23(1)(c) of the (now repealed) Securities (Insider Dealing) Ordinance Cap.395 (“SIDO”).

3.  Our decision of 28 February 2008 was to the effect that no extension of time to appeal should be given as no sufficient reason had been demonstrated to justify the granting of this indulgence.  The Applicant had at that time sought to rely on a change in law that had occurred after the expiry of the time limited for appeal from the decision of the IDT.  The change in law was significant as far as the Applicant was concerned.  It had been held by the Court of Appeal in Koon Wing Yee v Insider Dealing Tribunal and Anor, unreported, CACV 358 & 360/2005, 30 May 2007, that IDT proceedings were criminal in nature and that therefore the criminal standard of proof applied, whereas the finding of insider dealing against the Applicant followed the application of a lesser standard.  We held that a change was not, save in exceptional circumstances, sufficient to justify an extension of time and we noted also a deliberate decision on the part of the Applicant not, originally, to make the standard of proof point on appeal.

4.  Since our decision made on 28 February 2008, the Court of Final Appeal has handed down its judgment in the Koon Wing Yee case (on 18 March 2008).  The Court of Final Appeal reversed the decision of the Court of Appeal, essentially holding that proceedings in the IDT could be characterized as civil (and with this conclusion, that the appropriate standard of proof was to be the civil one) providing that the provision as to the imposition of fines (section 23(1)(c) of the SIDO) was struck down.  It was this provision that, if left intact, would cause the IDT proceedings to be classified as criminal.

5.  By a Notice of Motion dated 26 March 2008, the Applicant applied for leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, submitting that the following questions should be submitted to the Court of Final Appeal : -

“(a)    Does the repeal of section 23(1)(c) of he Securities (Insider Dealing) Ordinance Cap.395 and the want of jurisdiction on the part of the 1st Respondent in ordering the Applicant to pay a pecuniary penalty, constitute one of those rare and exceptional occasions, in terms of HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614 and R v Kwok Hing-man [1994] 2 HKCLR 160, which warrants the grant of leave to appeal out of time.

(b)     Is the Applicant entitled to the repayment of the $15,000,000 which the 1st Respondent, pursuant to section 23(1)(c) of the Securities (Insider Dealing) Ordinance Cap.395, ordered him to pay.”

6.  The argument of the Applicant ran as follows : with the repeal of section 23(1)(c) of SIDO, he has been fined under a provision that no longer exists and which should not have been in existence at the time the IDT made the order fining him.  This, so argued Mr Kevin Patterson (for the Applicant), constituted an exceptional circumstance to justify the granting of leave to appeal out of time.  He submitted that R v Kwok Hing Man, referred to above, was strong authority in the Applicant’s favour and that the point regarding a conviction for a non-existent offence to justify the granting of leave to appeal out of time, had been expressly left open by the Court of Final Appeal in HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614, at 632 (paragraph 25).

7.  In response, Mr Ronny Tong, SC (for the 2nd Respondent) resisted the application on a number of grounds, some based on the lack of jurisdiction to grant leave to appeal.  In the end, I do not regard it as necessary to deal with the jurisdiction arguments.  It seems to me that, even if jurisdiction were to exist, the submission that the Applicant now seeks to advance to justify leave to appeal out of time was simply not one that was made before us on the previous occasion (for obvious reasons).  In other words, the question or questions which were sought to be submitted to the Court of Final Appeal did not arise from the decision of this Court on 28 February 2008.  I accept that, on occasion, leave may be granted on a question that has not been raised before or dealt with by the Court of Appeal, but this will be relatively rare.  In the present case, it was perhaps more appropriate for the point now sought to be run by the Applicant to be canvassed in a new application for an extension of time to appeal, if so advised.

8.  For the above reasons, the application was dismissed.

Hon Stock JA :

9.  I agree with the reasons provided by the Chief Judge.