"A" v. THE SECURITIES AND FUTURES COMMISSION AND ANOTHER

"A" v. THE SECURITIES AND FUTURES COMMISSION AND ANOTHER

The court held that an investigator's power under SFO s.183(1)(c) to require attendance and answers reasonably implies the incidental power to record oral answers by audio means under IGCO s.40(1) and common law ancillary principles; audio recording is not an 'audio signature', does not supplant statutory declaration requirements, and does not unjustifiably infringe privacy rights, therefore the SFC acted within its powers in insisting on audio recording.

Citation
"A" v. THE SECURITIES AND FUTURES COMMISSION AND ANOTHER
Parties
Applicant: Applicant; 1st Respondent: Securities and Futures Commission; 2nd Respondent: Tong Hon Fai
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 October 2007
Case Number
HCAL103/2007
Procedural Posture
Judicial Review / Preliminary Issue Determination (hearing and Judgment on Whether Audio Recording May Be Mandated; Allegation of Bias Reserved)
Outcome
Applicant's claim dismissed; prayer for declaration and prohibition against audio recording denied.
Legal Topics
Power to Record Interviews, Insider Dealing Investigation, Interpretation of SFO S.183, Ancillary Statutory Powers, Right to Privacy, Audio Versus Video Recording
Source Language
EN
Constitutional Law Administrative Law Securities Regulation Statutory Interpretation Privacy Law Power to Record Interviews Insider Dealing Investigation Interpretation of SFO S.183 +3 more

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Parties

Applicant

Applicant

Securities and Futures Commission

1st Respondent

Tong Hon Fai

2nd Respondent

Procedural Posture

Judicial Review / Preliminary Issue Determination (hearing and Judgment on Whether Audio Recording May Be Mandated; Allegation of Bias Reserved)

Legal Issues

  1. 1 Whether an investigator under SFO s.183(1)(c) may insist on audio recording of an interview
  2. 2 Whether audio recording is excluded by express statutory provisions (ss.183(2) and (3)) or equivalent to an 'audio signature'
  3. 3 Whether audio recording unlawfully interferes with privacy rights under Basic Law Art.30, BR Art.14 and ICCPR Art.17

Ratio Decidendi

The court held that an investigator's power under SFO s.183(1)(c) to require attendance and answers reasonably implies the incidental power to record oral answers by audio means under IGCO s.40(1) and common law ancillary principles; audio recording is not an 'audio signature', does not supplant statutory declaration requirements, and does not unjustifiably infringe privacy rights, therefore the SFC acted within its powers in insisting on audio recording.

Court Disposition

Applicant's claim dismissed; prayer for declaration and prohibition against audio recording denied.

Orders

  • Claim dismissed
  • Application for declaration and prohibition refused