Koon Wing Yee v. Financial Secretary

CACV 245/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 245 OF 2011

(ON APPEAL FROM HCMP NO. 327 OF 2006)

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BETWEEN

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

Introduction

1.By our Judgment handed down on 16 November 2012, we dismissed the appellant’s appeal seeking a stay of the proceedings, in which orders of the Insider Dealing Tribunal against him (defined in the Judgment as “the Order”) had been registered, and the striking out of that registration.

2.By Notice of Motion dated 13 December 2012, the appellant applies for leave to appeal to the Court of Final Appeal against our Judgment.  The application is made pursuant to s. 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484), namely on the ground that the questions involved in the appeal are ones which, by reason of their great general or public importance, or otherwise ought to be submitted to the Court of Final Appeal.  The grant of such leave on that basis is, of course, a matter of discretion for this Court.

3.By a Summons dated 25 February 2013, the appellant has applied to amend the Notice of Motion to include an application for leave to appeal pursuant to s. 22(1)(a) of the HKCFAO, namely that the appeal lies as of right.

Appeal as of right?

4.In Koon Wing Yee v Insider Dealing Tribunal, unrep., FAMV 1/2010, 5.3.10, the Appeal Committee held (at §3) that an appeal against disgorgement orders under the Securities (Insider Dealing) Ordinance (Cap. 395) was based on the IDT’s assessment of profits gained attributable to insider dealing and fell outside s. 22(1)(a) of the HKCFAO since they involved neither a liquidated monetary claim nor a claim to a proprietary right.

5.Mr John J.E. Swaine, counsel for the appellant, submitted that, in applying to strike out the registration of the Order under the SIDO, the appellant was seeking to bring the proceedings in HCMP 327/2006 to an end, failing which the Government could execute the Order as “for all purposes an order of the Court of First Instance made within the jurisdiction of the Court of First Instance”: see SIDO s. 29(1).

6.He relied, in this context, on the decisions of the Court of Appeal in WFM Motors v Maydwell, unrep., CACV 148/1995, 29.2.96 and Karaha Bodas Co LLC v Persusahaan Pertambangan Minydak Dan Gas Bumi Negara, unrep., CACV 121/2003, 18.3.08.

7.Mr Swaine submitted that registration of the Order pursuant to SIDO s. 29 is, for the purposes of s. 22(1)(a) of the HKCFAO, wholly analogous to the registration of a foreign judgment or arbitration award.

8.We do not agree with this submission. 

9.In Gao Haiyan v Keeneye Holdings Ltd, unrep., CACV 79/2011, 29.3.12, Tang VP (as he then was) held (at §§3 and 4) that the immediate enforceability of an arbitration award did not satisfy the immediacy requirement in s. 22(1)(a) of the HKCFAO.

10.Further, it is clear that s. 22(1)(a) of the HKCFAO is now construed more restrictively than it was at the time of the Karaha Bodas decision and, as Tang VP pointed out in Grand Pacific Holdings Ltd v Pacific China Holdings Ltd (in liq) (No. 3) [2012] 4 HKLRD 576 at §5, WFM Motors v Maydwell has been overtaken by subsequent decisions of the Court of Final Appeal.  That decision of this Court (differently constituted) has recently been upheld by the Appeal Committee in its Determination (in FAMV 18/2012) dated 21 February 2013 at §8.

Questions of great general or public importance?

11.The questions involved in the appeal which were said to be ones which, by reason of their great general or public importance, should be referred to the Court of Final Appeal for decision were set out in the Notice of Motion as follows:

“(i) Whether the High Court has jurisdiction to stay or strike out proceedings in which the Insider Dealing Tribunal’s (“IDT”) order has been registered in accordance with Section 29 of the Securities (Insider Dealing) Ordinance, Cap. 395 (“SIDO”).

(ii) Whether that jurisdiction is confined to the perfection rule or the residual discretion after perfection to seek a correction of an error or to reopen the proceedings.

(iii) Whether the High Court retained inherent or implicit jurisdiction of correction to ensure that its process was not abused, including abuse by an unconstitutional act of another body, and to remedy that abuse.

(iv) Whether the Court’s duty, as laid down in Ng Ka Ling and Others v Director of Immigration ((1999) 2 HKCFAR 4), namely to examine whether legislation enacted by the legislature of the Region or acts of the executive authorities of the Region are consistent with the Basic Law and, if found to be inconsistent, to hold them to be invalid:

(a) is constrained by other, and, if so, what, considerations;

(b) is unavailable where the aggrieved party could have but did not apply for judicial review;

(c) is unavailable where the aggrieved party has not acted timeously.

(v) Where the Appellant did not ask the Court of First Instance to challenge the Order by which he was aggrieved on the basis of the residual jurisdiction but sought instead an outright stay or striking out of the Order, whether the Court’s power:

(a) is constrained by other, and, if so, what, considerations;

(b) is unavailable where the aggrieved party could have but did not apply for judicial review;

(c) is unavailable where the aggrieved party has not acted timeously.

(vi) Whether it is right to regard IDT proceedings and the registration of the IDT’s Order as administrative acts judicially reviewable in public law rather than exercises of judicial power of the Hong Kong SAR.

(vii) Whether the IDT functioned as a Court exercising the judicial power of the Hong Kong SAR, whereas its members were not or need not have been Judges of the Hong Kong SAR:

(a) in deciding Inquiries before it;

(b) in rendering its Orders;

(c) in registering its Orders under Section 29 of SIDO.

(viii) Whether the IDT does not decide civil liability.

(ix) Whether the British, or “Westminster” model, for the separation of powers is consistent with and/or mandated by the Basic Law.

(x) Whether “continuity” with the colonial system has any, and, if so, what, relevance to the Basic Law requirement that judicial power can only be exercised by the Courts of the Hong Kong SAR.

(xi) Whether the registration provision in Section 29 of SIDO is “simply a convenient aid to execution of the IDT’s orders”, and, if so, whether such an “aid to execution” does not nevertheless usurp the judicial power of the Courts of the Hong Kong SAR.

(xii) Whether the IDT is “not itself exercising any power” under Section 29 of SIDO, which power “is reserved to the Registrar”; and whether Section 29 of SIDO does not in truth impose on the Registrar a duty – not a power – of registration once engaged by the IDT’s decision to register.”

12.As Mr Swaine acknowledged in his skeleton argument, those questions involve the same arguments that were presented to this Court by the appellant at the substantive hearing of the appeal and were said to be applicable to anyone finding himself brought to the High Court by registration of an order under SIDO s. 29(1).

13.However, as was pointed out in our Judgment (at §37), the repeal of the SIDO has meant that there is a dwindling number of cases still being handled by the IDT and so the importance of these questions is debatable and we are not persuaded that they amount to questions of great general or public importance.  In particular, the argument based on the residual discretion of the Court was plainly fact specific and could not therefore be said to raise any question of great general or public importance.

14.Further, and in any event, we are not satisfied that the various arguments advanced before us on both the jurisdiction issue and the constitutional issue – each of which we addressed in our Judgment – and now sought to be re-run in the Court of Final Appeal are reasonably arguable. In particular, on the constitutional issue, we note that our view as to the applicability and correctness of the analysis of A. Cheung J (as he then was) in Luk Ka Cheung v Market Misconduct Tribunal [2009] 1 HKLRD 114 is supported by the judgment of Ma CJHC (as he then was) in Koon Wing Yee v Insider Dealing Tribunal, unrep., CACV 358/2005, 8.6.09 at §35(3).

Or otherwise?

15.No basis is advanced to support the grant of leave to appeal on the “or otherwise” basis which is an exceptional course and one which, in general, is a matter for the Appeal Committee.

Conclusion

16.For these reasons, we dismiss the appellant’s application by Summons to amend the Notice of Motion and the appellant’s application by the Notice of Motion for leave to appeal to the Court of Final Appeal.

17.The appellant must pay the costs of the respondent, to be taxed if not agreed.

Mr John J E Swaine, instructed by Philip K H Wong, Kennedy Y H Wong & Co., for the Appellant

Mr Peter Duncan SC, instructed by the Department of Justice, for the Respondent