Read the full judgment text of HCMA 000689/1989 on BabelCite. This High Court CFI judgment was delivered on 17 November 1989 before Barnes J.
Criminal law – Commodities Trading Ordinance (Cap. 250) – s. 26(1) and s. 26(4)(a) – requirement to register as a dealer – interpretation of 'trading in commodity futures contracts' – whether a person who gives a buy or sell order to an exchange member is 'trading in commodity futures contracts' – circularity in the definition of 'futures contract' in s. 2 – whether only exchange members can trade – whether the Kothari case (HCA 4857/80) assists the Respondents – whether 'otherwise than as agent' in s. 26(4)(a) is synonymous with 'otherwise than on behalf of another' – 1980 amendment and its Explanatory Memorandum – business providing money-lending and stockbroking services – Hang Seng Index futures contracts – transactions routed through a registered dealer – absence of customer agreement or indemnity – dealer carrying entire margin risk – no commission received – users knowing they were dealing on the dealer's account – the phrase 'otherwise than as agent' absolving the Respondents from the obligation to register – Case Stated question answered 'Yes' confirming the acquittal.
Legal issues: Whether giving a buy or sell order to an exchange member constitutes 'trading in commodity futures contracts' under the Commodities Trading Ordinance · Whether the Respondents traded 'otherwise than as agent' within s. 26(4)(a)
Outcome: Appeal dismissed; the question posed by the Case Stated was answered 'Yes', confirming that on the facts found the magistrate was correct to hold that the four Respondents had not carried on a business of trading in commodity futures contracts within the meaning of s. 26(1) of the Commodities Trading Ordinance (Cap. 250).