KOON WING YEE v. THE SECURITIES & FUTURES COMMISSION

CACV 369/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 369 OF 2007

(ON APPEAL FROM HCAL NO. 7 OF 2007)

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BETWEEN
KOON WING YEE Applicant
and
THE SECURITIES & FUTURES COMMISSION Respondent

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Before: Hon Rogers VP, Le Pichon JA and Stone J in Court

Date of Hearing: 17 October 2008

Date of Judgment: 17 October 2008

Date of Handing Down Reasons for Judgment: 29 October 2008

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1. This was an application for leave to appeal to the Court of Final Appeal and an application for a stay pending that appeal. Atthe conclusion of the hearing these applications were refused.

2. This court dismissed the appeal from the judgment of Saunders J, who had dismissed the applicant’s application for judicial review,primarily on the ground that the application was premature. In the reasons for judgment handed down by this court on 3 September2008, this court upheld the decision in the court below, holding that the application for judicial review had been premature andhypothetical. This court also pointed out that the application, as it came to be framed during the course of the hearing in thecourt below, was not supported by evidence.

3. On this application Mr John J E Swaine, who appeared with Sir John Swaine SC, argued that what was sought to be challenged was,first and foremost, the notice to attend an interview and answer questions. As was pointed out in the judgment the original groundsfor challenging the notice were abandoned. In so far as the notice, in itself, is challenged, that challenge appears to be basedon what might or might not happen in the future. It thus remains premature and hypothetical.

4. In so far as questions are sought to be raised about the Market Misconduct Tribunal, again, unless and until there are any proceedingsbefore that Tribunal, those would appear to be premature and hypothetical. The same considerations apply in relation to the questionssought to be raised in relation to whether a person who only has a hypothetical interest has a ‘sufficient interest’ to enableproceedings for judicial review to be sustained.

5. In short, I do not see that questions have been raised which are fit for this court to give leave to the appellant to appeal tothe Court of Final Appeal. In those circumstances, there is no basis for this court to grant a stay.

Hon Le Pichon JA:

6. I agree with the Reasons for Judgment given by Rogers VP.

Hon Stone J:

7. I agree with the Reasons for Judgment of Rogers VP.

(Anthony Rogers)
Vice-President
(Doreen Le Pichon)
Justice of Appeal
(William Stone)
Judge of the Court of First Instance

Sir John Swaine SC & Mr John J.E. Swaine, instructed by Messrs William Sin & So, for the Applicant

Mr Simon Westbrook SC, instructed by the Securities and Futures Commission