Securities and Futures Commission v. Yiu Hoi Ying Charles and Others

FAMV No. 38 of 2017

[2018] HKCFA 7

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 38 OF 2017 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 154 OF 2016)

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D E T E R M I N A T I O N

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Mr Justice Ribeiro PJ:

1.We grant leave to appeal in respect of the following questions of law:

(a)   Whether, in the context of the statutory defence to insider dealing provided for in section 271(3) of the SFO, the meaning of “using” relevant information for the purpose of securing or increasing a profit or avoiding or reducing a loss is broad enough to encompass the “withholding” or “non-disclosure” of relevant information and the taking advantage of such withholding or non-disclosure for the purpose of securing or increasing a profit or avoiding or reducing a loss?

(b)   Whether the effect of the interpretation contended [for] by the Applicant (as identified in paragraph 40 of the Judgment, referred to as the “Applicant’s Interpretation”) would be to equate the “use” of such information with the mere “possession” of it so as to render the statutory defence in section 271(3) wholly or largely inoperative, otiose or illusory?

(c)   Whether the statutory defence provided in section 271(3) is intended by the legislature to be exceptional or of limited application?

(d)   Whether the adoption of the Appellant’s Interpretation means that the provisions of the SFO concerning insider dealing are being employed to “further the same objective” as that which governs disclosure of price sensitive/relevant information prescribed in Rule 13.09 and the related provisions of the Listing Rules (as now codified into Part XIVA of the SFO)?

2.We refuse leave on the “or otherwise” ground.

3.The appeal will be heard on a date to be fixed.

Mr Horace Wong SC and Mr Norman Nip, instructed by Securities and Futures Commission, for the Applicant

Mr Samuel Wong, instructed by Sit, Fung, Kwong & Shum, for the 1^st Respondent

Mr Laurence Li, instructed by Raymond Chan Solicitors, for the 2^nd Respondent

Market Misconduct Tribunal, the 3^rd Respondent, in person (absent)