Read the full judgment text of FACV 000019/2007 on BabelCite. This FACV judgment was delivered on 18 March 2008 before Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ.
Constitutional law – Hong Kong Bill of Rights Ordinance (Cap 383) – arts 10 and 11 of the Hong Kong Bill of Rights – International Covenant on Civil and Political Rights art.14 – whether insider dealing proceedings under the Securities (Insider Dealing) Ordinance (Cap 395) ("SIDO") involve the determination of a criminal charge – three criteria test from Strasbourg jurisprudence – classification under domestic law as civil – nature of the offence – nature and severity of the potential sanction – power to impose penalty under s.23(1)(c) of SIDO up to treble the amount of profit gained – punitive and deterrent character comparable to a fine – insider dealing as "insidious mischief" amounting to very serious dishonest misconduct – proceedings criminal in nature by reason of penalty power – power to order disqualification under s.23(1)(a) regulatory and protective in character, not criminal – right to protection against self-incrimination under art.11(2)(g) and right to fair hearing under art.10 – use by Tribunal of answers compulsorily obtained under s.33(4) and (6) of the Securities and Futures Commission Ordinance (Cap 24) ("SFCO") – admission of incriminating answers in Tribunal proceedings – complete abrogation of right of silence – whether proportionate – distinction from regulatory regimes involving single simple questions – compulsion to give evidence under s.17 of SIDO – violation of arts 10 and 11(2)(g) – standard of proof – whether criminal standard of proof beyond reasonable doubt applies – General Comments Nos 13 and 32 of UN Human Rights Committee – Privy Council in Attorney-General of Hong Kong v Lee Kwong-kut – Tribunal's application of civil standard of "high degree of probability" was incorrect – remedy for breach of Bill of Rights – s.6(1) of BORO – whether court may strike down non-infringing provision – tension between legislative will and Bill of Rights protection – whether appropriate remedy is to excise s.23(1)(c) penalty power – legislative intention to retain investigatory powers and other Tribunal sanctions – Appeals allowed in part; s.23(1)(c) of SIDO declared invalid; Tribunal's adverse findings and orders under ss 23(1)(a), 23(1)(b) and 27 of SIDO restored; Court of Appeal's orders quashing findings set aside; order nisi that each party bears own costs of CFA appeal.
Legal issues: Whether insider dealing proceedings involve the determination of a criminal charge · Breach of right against self-incrimination · Standard of proof in criminal-charge proceedings · Appropriate remedy for BOR violation
Outcome: Appeals allowed in part; s.23(1)(c) of SIDO declared invalid; Tribunal's adverse findings and orders under ss 23(1)(a), 23(1)(b) and 27 of SIDO restored; Court of Appeal's orders quashing findings set aside
Cited by 3 cases