IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 2539 OF 2009
(ON AN INTENDED APPEAL PURSUANT TO S. 266 OF
Before : Hon Cheung and Yuen JJA in Court
Date of Hearing : 14 September 2010
Date of Decision : 16 November 2010
Hon Cheung JA :
1. On 8 July 2009, the Market Misconduct Tribunal (‘the
Tribunal’) found the applicant guilty of market misconduct in the nature of insider dealing. On 20 August 2009 the Tribunal orderedthe applicant, among other things, not to deal with any securities without leave of the Court of First Instance for a period of eightmonths. He was further ordered to pay the Hong Kong Government $2,069,582.42 and the Securities and Futures Commission (‘SFC’)$361,854.00 (‘the order’).
2. By summons dated 8 December 2009, the applicant applied for leave to appeal out of time against the finding and determination ofthe Tribunal. The applicant also sought leave to appeal against finding of fact by the Tribunal. Under section 266 of the Securities and Futures Ordinance (‘the Ordinance’) (Cap. 571) the applicant may appeal against the finding or determination on a point of law or with the leave of Court of Appeal,on a question of fact.
The relevant consideration
3. The Court will consider the application with the following factors in mind :
Length of delay
4. Under Order 59, rule 4 and Order 60A, rule 3 of the Rules of the High Court the applicant has 28 days to appeal against the order. The appeal period expired on 18 September 2009. The delay is 81 days. Thisis a substantial delay.
Reason for the delay
5. The applicant explained that he was advised by his former solicitors that he had meritorious grounds of appeal. However he decidednot to appeal before the deadline because of the following reasons :
6. The position changed on 21 October 2009. The SFC informed him that it intended to impose further sanctions against him, namelya life revocation of his trading licence and a life ban from conducting regulated financial activities. Following the receipt ofthis letter, he sought advice from his present firm of solicitors and retained it on 4 November 2009 to proceed with the application.
7. In my view the applicant has given a reasonable explanation for the delay. His belief and understanding of further disciplinaryproceedings came from the advice of his former solicitors who had made inquires with the SFC. Considering that he had already gonethrough a 53-day hearing and incurred substantial financial liability, he obviously had to balance the choice of living with an eight-monthsuspension or pursue with the uncertainty of an appeal. The notification from the SFC obviously put a new perspective on the matterwhich prompted him to lodge the appeal out of time.
Merits of the appeal
8. In my view the applicant has raised issues of law and facts which satisfied the ‘reasonable prospect of success’ threshold.
1A) Was David Tsien a connected person?
9. David Tsien was a ‘public-side’ equities salesman at JP Morgan. The concept of ‘Chinese wall’ within JP Morgan would precludehim from having access to relevant information. The Financial Secretary’s Notice of 12 September 2007 issued pursuant to section252(2) and Schedule 9 of the Ordinance proceeded on the basis that David Tsien was a connected person under section 247(1)(c) of the Ordinance. The section provides that,
‘ (1) For the purposes of Division 4, a person shall be regarded as connected with a corporation if, being an individual—
10. Some assistance may be drawn from the interpretation of Section 9 of the Company Securities (Insider Dealing) Act 1985 of the United Kingdom which bears similarity to our section 247(1),
11. Gore Browne on Companies 44th ed (1992) discussed the English provision as follows :
12. While David Tsien may have had actual information, it is certainly a substantial issue that someone with actual information maynot be sufficient to fall within the statutory category of someone who ‘occupies a position which may reasonably be expected togive him access to relevant information’. This appears to be an objective test. In my view the issue whether David Tsien wasa connected person under section 247(1)(c) satisfies the requirement of a reasonable prospect of success on appeal.
13. The Tribunal had also considered section 247(1)(d). Without deciding this point at this stage, it appears that this subsectionconnects a person to a listed company if
14. For the subsection to apply in the present case the ‘relevant information’ must concern a transaction between China OverseasLand and Investment Ltd (‘COLI’) and David Tsien’s company i.e. JP Morgan. However the Financial Secretary’s Notice didnot define ‘relevant information’ by reference to such a transaction. It is a live issue whether the Tribunal could rely onsection 247(1)(d) without giving the applicant an opportunity to respond.
1B) Knowledge of the applicant that David Tsien was a connected person
15. This issue is related to the one I have just discussed.
2A) Was the information relevant?
16. The Financial Secretary’s Notice stated that the applicant had come into possession of specific non-public price sensitive informationthat COLI would announce and carry out a top-up placement of 850,000,000 shares at a price of HK$1.8 per share on or about 26 January 2004.
17. Between 2 January 2004 and 13 January 2004, the applicant had bought 6 million shares. The first talk of possible placement betweenhim and David Tsien was on 12 January 2004.
18. While the placement was indeed announced in the afternoon of 26 January 2004, the disposal by the applicant of COLI shares tookplace on 21 January 2004 at 10.21 am of 2,392,000 shares and on 26 January 2004 at 10.38 am of 2 million shares. The informationthat the applicant had received up to 19 January 2004 was that the placement should be before the end of the month otherwise it wouldhave to wait until April 2004. On 20 January 2004 the applicant was told that there was no agreement yet and if there was to beagreement it had to be discussed next week. The applicant then sold 2 million shares on 21 January 2004. He did not dispose ofall his remaining COLI shares. Before the second disposal by the applicant on 26 January 2004 (again he did not dispose of all hisremaining holdings) David Tsien informed him at 8.52 am that he ‘guessed’ the placement was to be that week. It is a live issuewhether the information received by the applicant was that there were negotiations for the placement i.e. a contemplated placement or whether the placement would take place on 26 January 2004.
19. In Stime Watch International Holdings Limited (Report dated 14 February 2003) the Insider Dealing Tribunal (‘IDT’), addressing the issue of information relating to a contemplatedtakeover stated that,
20. But what is more important for the purpose of this appeal is what the IDT said about the relationship between price sensitivityand the probability of the transaction reaching fruition :
21. As directed by the Tribunal in this case, Mr. Rigby gave his evidence on the basis of an actual placement and not a contemplatedplacement. From that premise there was no discussion by him of the relationship with price sensitivity and the ‘probability’of the placement taking place. While the Tribunal may be correct to hold that the information did not become ‘relevant information’only when the agreement on placement was signed, the experts did not provide an analysis whether the information was price sensitiveon 21 January 2004 or on the morning of 26 January 2004 when the evidence pointed merely towards negotiations of the placement. Despite the use of the phrase ‘prospective placement’ in the report of Mr. Rigby, he did not actually undertake the analysisas I have mentioned.
22. The Tribunal at paragraph 967 held that
23. This is a pertinent observation. However, at this stage of the proceedings, I will leave the issue to be considered on appeal. The position can be contrasted with the situation in Firstone International Holdings Ltd (Report of 8 July 2004) where the IDT held that,
2B) Knowledge of the applicant that he had relevant information
24. This issue is again related to the issue whether the information was relevant information.
3) Reason of the sale
25. The Tribunal rejected the applicant’s explanation that the sale was not related to the use of the relevant information. On thispoint I agree with Yuen JA’s view and would not grant leave to the applicant to appeal on this point.
26. No prejudice to the respondent has been shown.
27. As a meritorious appeal has been shown I will grant the applicant extension of time to appeal on law and facts as indicated above.
28. There will be a provisional order that costs of this application be in the cause of the appeal.
Hon Yuen JA :
29. I agree that leave should be granted for grounds of appeal (1) and (2) only. Ground (3) is a ground of appeal on a pure questionof fact, as Mr. Yu accepted. Having seen and heard the witness, the Tribunal was entitled to reject his evidence that he sold theshares pursuant to his “trading philosophy/strategy”. It is clear that the Applicant did receive information. The arguments whether it is “relevant” information, and whether he received it from a “connected” person,do not impact upon the tribunal’s rejection of his allegation that he sold the shares pursuant to his “trading philsosophy/strategy”.
Mr. Benjamin Yu SC and Mr. Laurence Li, instructed by Messrs Clifford Chance for the Applicant
Mr. Peter Duncan SC and Mr. Jonathan Kwan, instructed by Department of Justice for the 2nd Respondent