CHEUNG SAU LIN AND ANOTHER v. MARKET MISCONDUCT TRIBUNAL AND ANOTHER

CHEUNG SAU LIN AND ANOTHER v. MARKET MISCONDUCT TRIBUNAL AND ANOTHER

Proceedings before the Market Misconduct Tribunal are civil in nature governed by a civil standard of proof; the s.252 notice provided sufficient brief particulars and defects, if any, are curable by amendment; statutory compellability and limited admissibility of compelled material do not deny a specified person a fair hearing because statutory safeguards and the protective character of sanctions achieve a fair balance.

Citation
CHEUNG SAU LIN AND ANOTHER v. MARKET MISCONDUCT TRIBUNAL AND ANOTHER
Parties
1st Applicant (hcal 123/2007); 2nd Applicant (hcal 22/2008): Chau Chin Hung; 2nd Applicant (hcal 123/2007); 1st Applicant (hcal 22/2008): Cheung Sau Lin; 1st Applicant (hcal 124/2007): Cheeroll Limited; 2nd Applicant (hcal 124/2007): Sun Hung Kai Investment Services Limited; 1st Respondent: Market Misconduct Tribunal; 2nd Respondent: Financial Secretary
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 September 2008
Case Number
HCAL22/2008
Procedural Posture
Judicial Review (constitutional and Administrative) / Judgment (final)
Outcome
Applications for judicial review dismissed
Legal Topics
Market Misconduct, Tribunal Jurisdiction, Validity of Institutional Notice, Compellability and Self‑incrimination, Admissibility of Compelled Evidence, Disgorgement and Civil Sanctions, Standard of Proof
Source Language
EN
Constitutional Law Administrative Law Securities and Futures Regulation Criminal Procedure (constitutional Safeguards) Market Misconduct Tribunal Jurisdiction Validity of Institutional Notice Compellability and Self‑incrimination +3 more

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Parties

Chau Chin Hung

1st Applicant (hcal 123/2007); 2nd Applicant (hcal 22/2008)

Cheung Sau Lin

2nd Applicant (hcal 123/2007); 1st Applicant (hcal 22/2008)

Cheeroll Limited

1st Applicant (hcal 124/2007)

Sun Hung Kai Investment Services Limited

2nd Applicant (hcal 124/2007)

Market Misconduct Tribunal

1st Respondent

Financial Secretary

2nd Respondent

Procedural Posture

Judicial Review (constitutional and Administrative) / Judgment (final)

Legal Issues

  1. 1 Whether proceedings before the Market Misconduct Tribunal are criminal or civil in nature
  2. 2 Whether the Financial Secretary's s.252 notice complied with statutory requirements and was valid
  3. 3 Whether the Tribunal may compel specified persons to give evidence and admit compelled statements without infringing fair hearing rights

Ratio Decidendi

Proceedings before the Market Misconduct Tribunal are civil in nature governed by a civil standard of proof; the s.252 notice provided sufficient brief particulars and defects, if any, are curable by amendment; statutory compellability and limited admissibility of compelled material do not deny a specified person a fair hearing because statutory safeguards and the protective character of sanctions achieve a fair balance.

Court Disposition

Applications for judicial review dismissed

Orders

  • Applications dismissed
  • Final order made