Koon Wing Yee v. The Securities & Futures Commission
Read the full judgment text of CACV 369/2007 on BabelCite. This Court of Appeal judgment was delivered on 17 October 2008 before Rogers VP, Le Pichon JA and Stone J.
Administrative law – judicial review – leave to appeal – Securities and Futures Commission – notice to attend interview and answer questions – Market Misconduct Tribunal – whether application for judicial review premature and hypothetical – Court of Appeal dismissed appeal from Saunders J – application for leave to appeal to Court of Final Appeal – whether proposed grounds raise questions of great general or public importance – whether questions concerning sufficiency of interest in hypothetical applicant – whether stay pending appeal should be granted – leave refused – stay refused – reasons handed down 29 October 2008.
Legal issues: Whether leave to appeal to the Court of Final Appeal should be granted
Outcome: Application for leave to appeal to the Court of Final Appeal refused; application for a stay pending appeal refused.
Cited by 5 cases
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CACV 369/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 369 OF 2007 (ON APPEAL FROM HCAL NO. 7 OF 2007) ----------------------
---------------------- Before: Hon Rogers VP, Le Pichon JA and Stone J in Court Date of Hearing: 17 October 2008 Date of Judgment: 17 October 2008 Date of Handing Down Reasons for Judgment: 29 October 2008 ------------------------------------- REASONS FOR JUDGMENT ------------------------------------- Hon Rogers VP: 1.This was an application for leave to appeal to the Court of Final Appeal and an application for a stay pending that appeal. At the conclusion of the hearing these applications were refused. 2.This court dismissed the appeal from the judgment of Saunders J, who had dismissed the applicant’s application for judicial review, primarily on the ground that the application was premature. In the reasons for judgment handed down by this court on 3 September 2008, this court upheld the decision in the court below, holding that the application for judicial review had been premature and hypothetical. This court also pointed out that the application, as it came to be framed during the course of the hearing in the court below, was not supported by evidence. 3.On this application Mr John J E Swaine, who appeared with Sir John Swaine SC, argued that what was sought to be challenged was, first and foremost, the notice to attend an interview and answer questions. As was pointed out in the judgment the original grounds for challenging the notice were abandoned. In so far as the notice, in itself, is challenged, that challenge appears to be based on what might or might not happen in the future. It thus remains premature and hypothetical. 4.In so far as questions are sought to be raised about the Market Misconduct Tribunal, again, unless and until there are any proceedings before that Tribunal, those would appear to be premature and hypothetical. The same considerations apply in relation to the questions sought to be raised in relation to whether a person who only has a hypothetical interest has a ‘sufficient interest’ to enable proceedings for judicial review to be sustained. 5.In short, I do not see that questions have been raised which are fit for this court to give leave to the appellant to appeal to the Court of Final Appeal. In those circumstances, there is no basis for this court to grant a stay. Hon Le Pichon JA: 6.I agree with the Reasons for Judgment given by Rogers VP. Hon Stone J: 7.I agree with the Reasons for Judgment of Rogers VP.
Sir John Swaine SC & Mr John J.E. Swaine, instructed by Messrs William Sin & So, for the Applicant Mr Simon Westbrook SC, instructed by the Securities and Futures Commission |
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