SECURITIES AND FUTURES COMMISSION v. C.L. MANAGEMENT SERVICES LTD AND ANOTHER

SECURITIES AND FUTURES COMMISSION v. C.L. MANAGEMENT SERVICES LTD AND ANOTHER

Section 114(1)(b) of the SFO is a regulatory offence in respect of which the presumption of mens rea is displaced and liability is subject to the statutory defence of reasonable excuse; on the evidence the magistrate was entitled to find A1 held itself out as carrying on advisory business and A2, as directing mind of A1, was properly convicted under s390; credibility and contractual construction findings were open to the magistrate and are not overturned on appeal.

Citation
SECURITIES AND FUTURES COMMISSION v. C.L. MANAGEMENT SERVICES LTD AND ANOTHER
Parties
Respondent: Securities and Futures Commission; 1st Appellant: C.L. Management Services Limited; 2nd Appellant: Au Suet Ming Clarea
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 June 2016
Case Number
HCMA288/2015
Procedural Posture
Magistracy Appeal (criminal) / Heard on Appeal to Court of First Instance; Judgment Delivered
Outcome
Appeals dismissed
Legal Topics
Unlicensed Regulated Activity, Holding Out Offence, Strict Liability/absence of Mens Rea, Reasonable Excuse Defence, Section 114 SFO, Section 390 SFO
Source Language
EN
Criminal Law Securities Regulation Regulatory Enforcement Unlicensed Regulated Activity Holding Out Offence Strict Liability/absence of Mens Rea Reasonable Excuse Defence Section 114 SFO +1 more

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Parties

Securities and Futures Commission

Respondent

C.L. Management Services Limited

1st Appellant

Au Suet Ming Clarea

2nd Appellant

Procedural Posture

Magistracy Appeal (criminal) / Heard on Appeal to Court of First Instance; Judgment Delivered

Legal Issues

  1. 1 Whether s114(1)(b) SFO is a strict liability/regulatory offence subject only to statutory defence of reasonable excuse
  2. 2 Whether A1 held itself out as carrying on a business in advising on corporate finance beyond merely lining up professionals
  3. 3 Whether A2 is liable under s390 as an officer who aided, abetted, procured or whose consent/connivance or recklessness made the offence attributable to her

Ratio Decidendi

Section 114(1)(b) of the SFO is a regulatory offence in respect of which the presumption of mens rea is displaced and liability is subject to the statutory defence of reasonable excuse; on the evidence the magistrate was entitled to find A1 held itself out as carrying on advisory business and A2, as directing mind of A1, was properly convicted under s390; credibility and contractual construction findings were open to the magistrate and are not overturned on appeal.

Court Disposition

Appeals dismissed

Orders

  • Convictions of C.L. Management Services Limited under s114(1)(b) SFO affirmed
  • Conviction of Au Suet Ming Clarea under s390 SFO affirmed