LUK KA CHEUNG v. THE MARKET MISCONDUCT TRIBUNAL AND ANOTHER

LUK KA CHEUNG v. THE MARKET MISCONDUCT TRIBUNAL AND ANOTHER

On a purposive, contextual analysis the MMT performs a regulatory and protective function within a statutory civil/inquisitorial regime distinct from criminal adjudication; it does not determine criminal guilt or civil liability, registration of its orders is discretionary and for execution convenience, and therefore it does not exercise the judicial power reserved to the courts under the Basic Law; the applicant's challenge fails.

Citation
LUK KA CHEUNG v. THE MARKET MISCONDUCT TRIBUNAL AND ANOTHER
Parties
Applicant: Luk Ka Cheung; 1st Respondent: The Market Misconduct Tribunal; 2nd Respondent: The Financial Secretary
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 November 2008
Case Number
HCAL49/2008
Procedural Posture
Constitutional Judicial Review / Judgment (18 November 2008)
Outcome
application dismissed
Legal Topics
Separation of Powers, Judicial Power, Basic Law Interpretation, Market Misconduct, Insider Dealing, Registration of Tribunal Orders, Tribunal Contempt Powers, Dual Civil and Criminal Regimes
Source Language
EN
Constitutional Law Administrative Law Securities Regulation Tribunal Law Public Law Separation of Powers Judicial Power Basic Law Interpretation +5 more

Case Brief

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Parties

Luk Ka Cheung

Applicant

The Market Misconduct Tribunal

1st Respondent

The Financial Secretary

2nd Respondent

Procedural Posture

Constitutional Judicial Review / Judgment (18 November 2008)

Legal Issues

  1. 1 Whether the Market Misconduct Tribunal (MMT) exercises judicial power reserved to the courts under the Basic Law
  2. 2 Whether MMT proceedings amount to determination of criminal guilt or civil liability
  3. 3 Whether statutory features (compulsion, contempt, registration of orders) render MMT a court of the classic kind

Ratio Decidendi

On a purposive, contextual analysis the MMT performs a regulatory and protective function within a statutory civil/inquisitorial regime distinct from criminal adjudication; it does not determine criminal guilt or civil liability, registration of its orders is discretionary and for execution convenience, and therefore it does not exercise the judicial power reserved to the courts under the Basic Law; the applicant's challenge fails.

Court Disposition

application dismissed

Orders

  • Application for judicial review dismissed
  • Costs nisi: Financial Secretary to have costs of these proceedings (including any previously reserved) with a certificate for two counsel