Securities & Futures Commission v. To Shu Fai

FAMC No. 11 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 11 OF 2008 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA No. 547 of 2007)

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 16 June 2008

Date of Determination: 16 June 2008

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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 are satisfied that the following points of law ought to be certified as being involved in the decision and as being of great and general importance:

(1)    Where a corporation files a public announcement with the HKSE, having authorised it to hand the announcement to the Securities and Futures Commission on the corporation’s behalf, pursuant to section 7(3) of the Securities and Futures (Stock Market Listing) Rules (Cap 571), does such filing with the HKSE constitute “providing” the information contained in the announcement to the Commission as the relevant specified recipient for the purposes of constituting an offence under section 384(1) of the Securities and Futures Ordinance?

(2)    If it does not, do the facts constitute an attempt, and in particular, is recklessness on the part of the corporation as to the falsity or misleading quality of the relevant information a sufficient mental state to found liability for an attempt to commit a section 384(1) offence?

(3)    If it does constitute an attempt, is the offence of attempting to commit a section 384(1) offence an “offence under this Ordinance” for the purposes of section 390?

2.We accordingly grant leave to appeal in respect of these questions.  We do not consider that any reasonable basis for an appeal exists on the substantial and grave injustice ground despite the efforts of Mr Simon Young who dealt with this part of the application to persuade us to the contrary.

Mr Jeremy S K Chan & Mr Simon Young (instructed by Messrs Richards Butler) for the applicant

Mr Simon Westbrook SC (instructed by Securities and Futures Commission) for the respondent