Read the full judgment text of HCA 584/2016 on BabelCite. This Court of First Instance judgment was delivered on 26 January 2017 before Hon Chung J.
Civil procedure – striking out – Securities and Futures Ordinance (Cap 571) s 22 – immunity of recognized exchange company from civil liability for acts done in good faith – constitutional challenge under Article 35 of the Basic Law – whether substantive immunity engages procedural right of access to court – proportionality – whether plaintiff has an arguable case of bad faith to displace immunity – repeated and abusive litigation by shareholder against listed company – Stock Exchange of Hong Kong – SMG shares resumed trading subject to conditions including coal mine investigation – shareholder alleging misleading announcement and inadequate investor protection – Civil Justice Reform – Basic Law Article 35 – s 28, Cap 571 regulatory recourse – RHC Ord 18 r 12(1)(b) – RHC Ord 42 r 5B(6) costs order nisi and summary assessment – Siberian Mining Group Co Ltd v Zhi, Charles [2016] 4 HKLRD 88 – Matthews v Ministry of Defence [2003] 1 AC 1163 – Roche v United Kingdom (2006) 42 EHRR 30 – Ng Yat Chi v Max Share Ltd & Another (2005) 8 HKCFAR 1 – Held: s 22, Cap 571 is constitutional; it is a substantive limitation on civil liability, not a procedural bar, and serves the legitimate aim of enabling SEHK to perform its regulatory functions without fear of liability, with recourse remaining via the Securities and Futures Commission under s 28; plaintiff failed to plead or evidence an arguable case of bad faith, and the claim against SEHK and Ms Chan was struck out and dismissed; plaintiff's interlocutory injunction, summary judgment, 2016 Technical Report production and constitutional challenge applications were all dismissed; costs order nisi against the plaintiff with liberty to lodge statement of costs for summary assessment.
Legal issues: Constitutionality of s 22, Securities and Futures Ordinance (Cap 571) · Whether Mr Zhi has an arguable case of bad faith to defeat s 22 immunity · Striking out the claim against SEHK and Ms Chan · Mr Zhi's other interlocutory applications
Outcome: SEHK's and Ms Chan's striking-out applications allowed; claims against SEHK and Ms Chan struck out and dismissed. Mr Zhi's interlocutory injunction application, summary judgment application, 2016 Technical Report application, and constitutional challenge to s 22, Cap 571 all dismissed.
Cited by 2 cases