Hong Kong Case Law: Decisions & Judgments

Topic

Admissibility of compelled evidence

Legal area

Court

22 Sept 2008

CHAU CHIN HUNG AND ANOTHER v. MARKET MISCONDUCT TRIBUNAL AND ANOTHER

Citation

CHAU CHIN HUNG AND ANOTHER v. MARKET MISCONDUCT TRIBUNAL AND ANOTHER
Court

Court of First Instance
Case number

HCAL123/2007

Proceedings before the Market Misconduct Tribunal are civil and regulatory in nature; the Financial Secretary's notice provided sufficient particulars under s.13 Schedule 9 (and defects, if any, are curable by amendment); statutory compulsion to give evidence and admission of compelled statements is compatible with the right to a fair hearing because admissibility is confined principally to Tribunal proceedings and the statutory scheme strikes a fair and proportionate balance between public regulatory interests and individual rights.
22 Sept 2008

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

Citation

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

Court of First Instance
Case number

HCAL22/2008

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.
18 Mar 2008

KOON WING YEE v. INSIDER DEALING TRIBUNAL AND ANOTHER

Citation

KOON WING YEE v. INSIDER DEALING TRIBUNAL AND ANOTHER
Court

Court of Final Appeal
Case number

FACV19/2007

The Court held that because s.23(1)(c) authorised a substantial punitive deterrent penalty the insider‑dealing proceedings were criminal in nature for purposes of arts 10 and 11 BOR; the use of compelled incriminating answers under s.33 SFCO and the compulsion under s.17 SIDO breached the privilege against self‑incrimination; the Tribunal should have applied the criminal standard of proof beyond reasonable doubt; and the appropriate remedy was to declare s.23(1)(c) invalid while restoring the Tribunal's adverse findings and non‑penalty orders.
30 May 2007

KOON WING YEE v. INSIDER DEALING TRIBUNAL AND ANOTHER

Citation

KOON WING YEE v. INSIDER DEALING TRIBUNAL AND ANOTHER
Court

Court of Appeal
Case number

CACV358/2005

The Court held that Insider Dealing Tribunal proceedings under SIDO are criminal in nature because the treble penalty in section 23(1)(c) is punitive and deterrent; therefore Articles 10 and 11 of the HKBOR apply. Consequently compelled testimony obtained under section 33(4) SFCO and used pursuant to section 33(6) SFCO in insider dealing inquiries is inadmissible where privilege is claimed, implicated persons should not be compelled under section 17 SIDO to give evidence in such criminal proceedings, and the appropriate standard of proof is beyond reasonable doubt.
1 Feb 2007

RE KOON WING YEE

Citation

RE KOON WING YEE
Court

Court of First Instance
Case number

HCAL7/2007

The court held the delegation challenge fails because the Ordinance expressly empowers the Commission to delegate functions including forming the opinion to commence an investigation; disgorgement orders are restitutionary not penal and do not convert Tribunal proceedings into criminal proceedings; however the discrete Bill of Rights issue (whether statutory removal of the right to silence before the Tribunal breaches Art.11) raises a value judgment requiring fuller argument and leave to apply for judicial review on that limited issue is granted.

Hong Kong Case Law

CHAU CHIN HUNG AND ANOTHER v. MARKET MISCONDUCT TRIBUNAL AND ANOTHER

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

KOON WING YEE v. INSIDER DEALING TRIBUNAL AND ANOTHER

KOON WING YEE v. INSIDER DEALING TRIBUNAL AND ANOTHER

RE KOON WING YEE