1 GUIDE TO MARKET MISCONDUCT IN HONG KONG by David Richardson and Alesya Tepikina Introduction After approximately ten years of drafting and consultation, the Hong Kong Government introduced the Securities and Futures Ordinance (the SFO ) in March The SFO became effective on April 1, 2003, and was subsequently amended a number of times. The SFO comprises 17 parts and 10 schedules and consolidates and replaces ten prior ordinances governing the Hong Kong securities, investments, futures and leveraged foreign exchange markets. It also introduced a number of new regulatory initiatives such as: single licensing regime (Part V); increased power of the Securities and Exchange Commission (the SFC ) (Parts XIII and XIV); introduction of dual civil and criminal regimes to deal with offences (Parts XIII and XIV); establishment of the Market Misconduct Tribunal (the MMT ) (Part XIII); and modernization of disclosure regime (Part XV). Offences under the SFO The SFO provides for six market misconduct offences (Parts XIII and XIV) that may trigger civil or criminal liability: insider dealing; false trading; price rigging; disclosure of information about prohibited transactions; disclosure of false or misleading information inducing transactions, and stock market manipulation. The SFO also introduced three offences (Part XIV) that are subject only to criminal liability: use of fraudulent or deceptive schemes or engagement in any practice which is fraudulent or deceptive in transactions involving securities, futures contracts or leveraged foreign exchange trading; disclosure of false or misleading information inducing others to enter leveraged foreign exchange contracts; and falsely representing dealings in futures contracts on behalf of others. For more information, see section Offences below. Proceedings under the SFO Hong Kong has civil as well as criminal regimes to deal with various offences under the SFO, including market misconduct. The civil and criminal regimes are mutually exclusive and proceedings under one mean that there can be no further proceedings under the other (i.e., no double jeopardy). 1 The SFC, being the central regulatory body for securities and futures market in Hong Kong, may choose to commence proceedings through the civil or criminal route. Such decision must be made in accordance with the Department of Justice s Prosecution Policy which involves the consideration of: sufficiency of evidence; and public interest. For more information, see sections Civil proceedings and Criminal proceedings below. Additionally, the SFO provides for a third route for proceedings which enables the SFC to commence civil proceedings against defendants in the Court of First Instance for the issuance of final court orders and injunctions. Criminal or civil proceedings are not a prerequisite for the issuance of such orders or injunctions. Under Section 213 of the SFO ( Section 213 ), the Court of First Instance has wide-ranging power to issue orders and injunctions on the application of the SFC. Section 213 proceedings are standalone proceedings intended to assist the SFC to protect investors and provide remedies for contraventions of market misconduct. For more information, see section Civil proceedings Section 213 below. The SFC can also pursue disciplinary actions against persons licensed or registered with the SFC. For more information, see section Disciplinary actions below. 1 Sections 283 and 307 of the SFO. In this guide the references are to the sections of the SFO, unless specified otherwise. June 2016
2 Course of actions The chart below represents a course of actions that can be taken under the SFO: Type of Action Private Actions Public Actions Type of Offence Contravention of Part XIII of the SFO Contravention of Part XIII or Part XIV of the SFO Who can initiate proceedings Any person who has suffered pecuniary loss SFC Financial Secretary / Secretary of Justice Place of proceedings Court of First Instance MMT Court of First Instance Representations to the SFC Magistrate Court Court of First Instance Appeals to Securities and Futures Appeals Tribunal Admission of contravention by defendant Court s own finding of contravention Decision Notice Appeals to Securities and Futures Appeals Tribunal Appeals to Court of First Instance Mutually Exclusive Type of Liability Civil Liability Civil Liability Civil proceedings under Section 213 of SFO court orders and injunctions Disciplinary Responsibility Criminal Liability Mutually Exclusive Decisions can be appealed to the Court of Appeal and further to the Court of Final Appeal Notes: 1. The Magistrate Court and the Court of First Instance are referred to as the criminal courts in this guide. 2. Decisions of the Court of First Instance on appeal from the Magistrate Court my be appealed to the Court of Final Appeal (rather than the Court of Appeal) with a leave of the Court of Final Appeal.
3 Civil proceedings Private actions The SFO provides for the right of action in civil proceedings for any person who has suffered pecuniary loss as a result of another person s contravention of market misconduct provisions 2. Damages are only payable if it is fair, just and reasonable in circumstances, similar to the common law test of tort of whether a duty of care arises in cases of pecuniary loss. By providing for this right, the SFO sought to establish a clear relationship between investor compensation and market misconduct by creating an express statutory cause of action for an investor to sue another person for recovery of losses caused by market misconduct if the court believes it is fair, just and reasonable for such investor to recover. This is similar to a common law concept of duty of care which established the benchmark for civil liability in cases involving damage to property, psychiatric injury and economic loss arising from the acts or omissions of an extended group of professionals (such as auditors, accountants, psychologists etc.). Under this concept, a person who has suffered loss as a result of market misconduct may be able to seek redress through the civil courts. The MMT s findings in relation to market misconduct are admissible in evidence in a private civil action. Adverse determinations by the MMT create a rebuttable presumption against the defendant. Criminal convictions are admissible in evidence for the purpose of proving that an offence was committed, but only where relevant to the issues in a private civil action. The courts tend to judge relevance strictly. A conviction for market misconduct would usually be relevant to a private action by an investor if it is related to the same event. The SFO provisions for private action do not affect common law or other statutory rights. Hence, a company may conceivably sue a director for the profit he/she gained through a breach of fiduciary duties, even though the company might not have suffered any direct pecuniary loss. 3 Public actions MMT Civil proceedings under Part XIII of the SFO may be initiated by the SFC in the MMT if it appears to the SFC that market misconduct has or may have taken place. The SFC must not institute the proceedings in the MMT unless it has obtained the consent of the Secretary for Justice. The Financial Secretary may also institute civil proceedings in the MMT to determine matters relating to market misconduct. Pursuant to the 2012 amendments to the SFO, the SFC can now make the decisions on instituting MMT proceedings itself, instead of through the Financial Secretary, 4 subject to the Secretary of Justice s consent, which may be withheld only if criminal proceedings in respect of the same conduct are contemplated. 5 The MMT has jurisdiction to hear and determine any question or issue arising out of or in connection with the proceedings instituted under the SFO. The object of MMT s proceedings is to determine: 6 whether market misconduct has taken place; the identity of person engaged; and the amount of profit gained or loss avoided as a result of misconduct. The MMT consists of a Chairman and two other ordinary members. 7 The Chairman must be a judge or former judge 8 of the High Court appointed by the Chief Executive of Hong Kong on the recommendation of the Chief Justice. Two other members are prominent members of Hong Kong s business and professional community appointed by the Financial Secretary under the authority delegated by the Chief Executive. They cannot be public officers. The SFC also appoints a person (a counsel or a solicitor) as the Presenting Officer to conduct the proceedings and may appoint one or more persons to assist the Presenting Officer. The proceedings before the MMT are inquiries and not a trial. The MMT may order the SFC to make further investigations and obtain further evidence. The MMT has less procedural safeguards than the criminal courts. The use of compelled evidence is allowed 9, however, evidence given in the MMT proceedings is not admissible in other proceedings, save for certain situations. 10 The standard of proof required for determining any questions or issues before the MMT is the balance of probabilities which means that the tribunal considers whether the occurrence of an event was more likely than not. However, the tribunal should also be mindful that allegations that are more serious in nature are less likely to have occurred, and hence more cogent evidence is needed to establish the allegation on the balance of probability. 11 Sittings of the MMT are held in public unless the MMT considers, in the interests of justice, that a sitting (or any part of it) should be held in private. 2 Sections 281 and Insider Dealing: Identifying and Tackling It, Kemal Bokhary (1984) 14 HKLJ Section Section 252A. 6 Section Schedule 9. 8 See Section 245(1) for the definition of judge. 9 Sections 253 and Section Section 252(7). See also Koon Wing Yee  3 HKLRD 372, .
4 The MMT has wide discretion to impose various types of sanctions including: disqualification from acting as a director, liquidator, or receiver or manager of the property or business, of a listed company or any other specified corporation for up to 5 years; disqualification from dealing in securities for up to 5 years; order that a person shall not again perpetrate any conduct which constitutes market misconduct specified in the order; payment to the Government of Hong Kong of the profit gained or loss avoided by the market misconduct; payment of the costs and expenses incurred by the Government of Hong Kong and/or the SFC in relation or incidental to the proceedings; and recommendation that the defendant be disciplined by the appropriate professional body. 12 The MMT can also issue a disciplinary referral order, whereby giving notice to the relevant body to consider taking disciplinary action against persons identified. Persons who fail to comply with the MMT s orders commit an offence and are potentially liable to imprisonment. 13 Section 213 The SFC s ability to initiate civil proceedings under Section 213 to obtain protective and remedial orders against persons asserted to have contravened the market misconduct provisions is independent and irrespective of whether criminal or civil proceedings are pending or contemplated. This was affirmed by the Court of Appeal s judgment released on May 10, 2013 dismissing Tiger Asia s jurisdictional objection to the SFC s use of the Section 213 proceedings. 14 The Court of Appeal held that the Court of First Instance had jurisdiction to determine whether the precedent fact of contravention has occurred and Section 213 was meant to augment the SFC s ability to protect the investing public and provide remedies for contraventions for the protection of investors. The Court of Appeal underlined that in Section 213 proceedings the SFC acts not as a prosecutor in the general public interest (which it does when using the dual civil/criminal regime), but as protector of collective interests of the persons dealing in the market who have been injured by market misconduct. Such proceedings, therefore, are more akin to individuals suing for damages than prosecutions under the dual regime. The Section 213 proceedings are not confined to insider dealing and market manipulation but are broadly available to prevent and remediate breaches of the SFO and other Hong Kong s securities laws, licensing terms and conditions and certain parts of the Companies and Anti-Money Laundering legislation. It has been invoked in various scenarios ranging from brokerage failure to listed company prospectus liability to the sale of hotel units which share the common feature of investor protection and an alleged breach of securities legislation. Some cases demonstrate that the Section 213 proceedings will be exercised or threatened robustly, frequently and across a wider range of alleged infringements, including: market misconduct, including insider dealing and market manipulation; 15 IPO prospectus liability against issuers, directors and sponsors; 16 rules of disclosure of inside information; 17 fraud and misappropriation of assets; alleged misfeasance by directors of listed companies; 18 and collective investment schemes and distribution of authorized structured products. 19 In the absence of a class action regime in Hong Kong, the SFC has a legal ability under Section 213 to issue civil proceedings to seek recovery on behalf of investors. Section 213 empowers the Hong Kong courts on the application of the SFC to make a broad range of orders designed to remedy and prevent the recurrence of breaches, including (interim and/or final): order restraining or prohibiting the occurrence or continued occurrence of contravention/breach; order requiring a person to take steps as the Court of First Instance may direct, including steps to restore the parties to any transaction to the position in which they were before the transaction was entered into; order restraining or prohibiting a person from acquiring, disposing of, or otherwise dealing in, any property; order appointing a person to administer the property of another person; order declaring a contract relating to any securities, structured product etc., or an interest in any securities, structured product etc. or collective investment scheme to be void or voidable; order directing a person to do or refrain from doing any act specified in the order; order ancillary to the above; and order requiring the person to pay damages to any other person. 12 Section Section 253(3). 14 See The SFC v Tiger Asia Management LLC & Others  HKCFA 38;  3 HKC 600; FACV13/2012 (May 10, 2013); Court dismisses application to strike out SFC insider dealing and fraud case, the SFC, October 28, E.g., the SFC s proceedings against Du Jun in relation to dealing in the shares of CITIC Resources. Court orders insider dealer Du Jun to pay $23.9 million to investors, the SFC, December 12, E.g., the SFC s proceedings against Hontex International Holdings. Hontex ordered to make $1.03 billion buy-back offer over untrue IPO prospectus, the SFC, June 20, E.g., the SFC s proceedings against AcrossAsia Limited. SFC commences MMT proceedings against AcrossAsia Limited, its Chairman and CEO for late disclosure of inside information, the SFC, July 27, E.g., the SFC s proceedings against GOME Electrical Appliances Holding Limited. SFC obtains court orders for GOME to receive $420 million compensation from founder and wife over breaches in share repurchase, the SFC, May 7, E.g., the SFC s investigations against Cheung Kong Group. Pearl Wisdom Limited agrees with SFC to unwind sale of the Apex Horizon hotel units, the SFC, May 13, 2013.
5 The SFO allows interim injunctive relief to be obtained when it appears to the SFC that a breach had or might occur. It allows final orders to be made based on the Court s determination that a contravention has in fact occurred. If proceedings are brought in the MMT or the criminal court against the same set of facts after the court has made determination in Section 213 proceedings, the MMT or the criminal court would make its decision independently of the previous decisions, and the decision reached may be different. Section 213 allows the SFC to request civil remedies inherent in the dual regime which are free-standing and self-contained. Criminal proceedings Public actions Criminal proceedings under Part XIV of the SFO can be brought: by the Secretary for Justice on indictment in the Court of First Instance (on the reference of the Financial Secretary); or summarily by the SFC in the Magistrate Court 20 (the Secretary of Justice can intervene in the SFC s conduct of such proceedings). The decision as to whether to initiate criminal proceedings in relation to suspected offence must made in accordance with the Prosecution Code. The Prosecution Code provides for two criteria for the institution of criminal proceedings: there is sufficient evidence for a criminal prosecution; and criminal prosecution is in the public interest. In criminal proceedings, the prosecution has the burden to prove and the standard of proof is proof beyond reasonable doubt. The decision to prosecute cases as indictable offences is made by the Director of Public Prosecutions. The offender may be sentenced: on conviction on indictment, to imprisonment for up to 10 years and/or a fine of up to HK$10 million (equivalent to 21 approximately US$1.3 million); or on summary conviction, to imprisonment for up to three years and/or a fine of up to HK$1 million (equivalent to approximately US$128,900). Aside from imposition of fine and terms of imprisonment, the court may, upon convicting a person of an offense, make disqualification order, cold shoulder order and disciplinary referral order, among others. 22 Disciplinary actions The SFC regulates the operation of the securities and futures market through a licensing regime. Persons and companies are only allowed to perform a broad range of regulated activities if they are appropriately licensed or registered. Perpetrators identified by the MMT or criminal courts often have their licenses revoked and banned from the market for long periods of time, as they are not fit and proper to be licensed. 23 The SFC can also pursue disciplinary actions against persons licensed or registered with the SFC regardless of civil or criminal proceedings. Disciplinary proceedings may result in substantial fines of up to HK$10 million or three times the amount of profit gained or loss avoided, whichever is greater, as well as a revocation of license or registration. 20 Section In this guide, we used the exchange rate as of May 27, 2016 which was US$1 against HK$ Section 303(2). 23 E.g., Tsien Pak Cheong David v SFC  3 HKLRD 533.
6 Offences The table below shows various types of offences and whether such offences can be subject to civil or criminal proceedings and proceedings under Section 213: Civil proceedings Criminal Section 213 Offence public action proceedings proceedings Market misconduct offences Insider dealing 24 p p p False trading 25 p p p Price rigging 26 p p p Disclosure of information about prohibited transactions 27 p p p Disclosure of false or misleading information inducing transactions 28 p p p Stock market manipulation 29 p p p Additional criminal offences Use of fraudulent or deceptive schemes or engagement in any practice No p p which is fraudulent or deceptive in transactions involving securities, futures contracts or leveraged foreign exchange trading 30 Disclosure of false or misleading information inducing others to enter leveraged No p p foreign exchange contracts 31 Falsely representing dealings in futures contracts on behalf of others 32 No p p A person cannot be subject to the double jeopardy of both civil proceedings under Part XIII and criminal proceedings under Part XIV for the same market misconduct. 33 Market misconduct offences Insider dealing (Sections 270 and 291 of the SFO) Insider dealing is generally understood as dealing on material, non-public (i.e., inside) information about a company by insiders for personal gain. Under the SFO, there are two elements of insider dealing: information must be relevant information; and a personal nexus must exist between the person and a company of which he/she has inside information. For the information to be relevant information, it must possess three characteristics: the information must not be generally known to the market; it must be specific information; and it must be information of the kind which, if it were known to the market, would be likely materially to affect the price of that company s listed securities and the insider must know that this is so. 34 To clarify what is considered to be relevant information, in June 2012 the SFC issued Guidelines on Disclosure of Inside Information. There are three groups of persons 35 who may have a personal nexus necessary to establish insider dealing: connected persons 36 : substantial shareholders 37, directors, and employees 38 of the company, or its related company 39 ; persons connected by professional or business relationship 40 ; transaction counterparties privy to inside information 41 ; public officers and specified persons 42 ; and 24 Sections 270 and Sections 274 and Sections 275 and Sections 276 and Sections 277 and Sections 278 and Section Section Section Sections 283 and Section 285(1). 35 Sections 247 and Sections 247(2) and 287(2). A corporation is regarded as a person connected to another corporation if any of its directors / employees is a person connected to that corporation. 37 Substantial shareholders are persons who are interested in 5% or more nominal value of the share capital of the company. Sections 247(3) and 287(3). See Sections 250 and 286 for definition of interest in securities. 38 Sections 247(1)(a)&(b) and 287(1)(a)&(b). 39 See Schedule 1 for definition. 40 Sections 247(1)(c) & 287(1)(c). 41 Sections 247(1)(d) & 287(1)(d). 42 Sections 248 and 288.
7 insiders listed in the first and third bullet points above within the six months preceding the relevant contravention 43. take-over bidders 44 : persons contemplating or having contemplated making a take-over offer 45 for the company; tippees 46 : persons who knowingly received inside information from insiders. Prohibited acts pertaining to insider dealing under the SFO include 47 : dealing, and counseling or procuring: all three groups of insiders mentioned above are prohibited from dealing and counseling or procuring another person to deal in the listed securities of the company (and its related company), and their derivatives; disclosing: connected persons and take-over bidders, but not tippees, are prohibited from disclosing inside information to others, knowing or having reasonable cause to believe that he/she will use it for the purpose of dealing, or counseling or procuring ; and overseas prohibition: all three groups of insiders are prohibited from counseling or procuring or disclosing in relation to overseas markets. There are certain defenses available to a party facing insider dealing liability under the SFO, including: no profit motive, innocent agent, performance of an underwriting agreement, Chinese walls, market information and facilitation, pre-existing right to subscribe and dealings by trustee or person representative. 48 Aside from civil liabilities, the SFO also creates criminal offences for insider dealing. 49 False trading (Sections 274 and 295 of the SFO) Under the SFO, false trading occurs when: a person, in Hong Kong or elsewhere, intentionally or recklessly creates a false or misleading appearance of active trading, with respect to market or price of securities and futures; 50 or a person, in Hong Kong or elsewhere, intentionally or recklessly creates or maintains an artificial price of securities and futures. 51 The same conduct by a person in Hong Kong which has a similar effect on securities or futures traded on an overseas market may also constitute false trading. It is not necessary for the transaction or transactions concerned to be in securities or futures. These provisions therefore prohibit a range of conduct that occurs off a market that affects prices on a securities or futures market such as cross-market manipulation and cornering. A person who engages in an on-market wash sale or matched order is presumed to have intended, or been reckless as to whether, his/her conduct creates or is likely to create a false or misleading appearance of active trading, the market for, or price of, the securities. 52 It will be a defense if such person can establish that the purposes for which he/she engaged in the transaction did not include the purpose of creating such a false or misleading appearance. 53 Wash sales are trades in which a person buys or sells securities without there being a change of beneficial ownership. 54 A matched order is where a person offers to sell or buy securities at a price that is substantially the same as the price at which he/she has made or proposes to make, or he/she knows an associate of his/her has made or proposes to make, an offer to buy or sell the same or substantially the same number of securities. 55 An associate is defined to include a person s spouse or reputed spouse, brother, sister, parent, step-parent, natural or adopted child or step-child, any corporation of which a person is a director, any partner or employee of a person and in the case of a corporation, each of its directors and its related corporations and each director or employee of any of its related corporations. 56 Price rigging (Sections 275 and 296 of the SFO) Price rigging occurs when: a person, in Hong Kong or elsewhere, engages directly or indirectly, in a wash sale of securities which has the effect of maintaining, increasing, reducing, stabilizing, or causing fluctuations in, the price of securities; or a person, in Hong Kong or elsewhere, engages, directly or indirectly, in any fictitious or artificial transaction or device with the intention that, or being reckless as to whether, it has the effect of maintaining, increasing, reducing, stabilizing, or causing fluctuations in, the price of securities, or the price for dealings in futures contracts. 57 The same conduct by a person in Hong Kong which affects securities or futures, as applicable, traded on an overseas market will also constitute price rigging if such conduct is unlawful in the country in which the relevant market is situated. It is a defense if a person can establish that the purposes for which the securities were sold or purchased did not include the purpose of creating a false or misleading appearance with respect to the price of securities Sections 247(1)(e) & 287(1)(e). 44 Sections 270(1)(b) and 291(2). 45 See Schedule 1 for definition. 46 Sections 270(1)(e)&(f) and 291(5)&(6). 47 Sections 270 and Sections 271, 272 and Section Sections 274 and 295(1) and (2). 51 Sections 274 and 295(3) and (4). 52 Sections 274(5) and 295(5). 53 Sections 274(6) and 295(7). 54 Sections 274(5)(a) and 295(5)(a). 55 Sections 274(5)(b) and (c) and 295(5)(b) and (c). 56 Schedule Sections 275 and Sections 275(4) and 296(5).
8 Disclosure of information about prohibited transactions (Sections 276 and 297 of the SFO) Disclosure of information about prohibited transactions occurs when a person discloses, circulates or disseminates, or authorizes or is concerned in the disclosure, circulation or dissemination of, information to the effect that the price of securities of a corporation, or the price for dealings in futures contracts will be affected or is likely to be affected by a prohibited transaction relating to securities of either the corporation or a related corporation or futures contracts if he/she, or an associate of his/hers: has entered into, directly or indirectly, the prohibited transaction; or has received, or expects to receive, directly or indirectly, a benefit as a result of the disclosure, circulation or dissemination of the information. 59 It is a defense if a person can establish that the benefit received, or expected to received, was not from a person involved in the prohibited transaction or that the benefit received, or expected to receive, was from a person involved in the prohibited transaction or an associate of his/hers, but up to the time of the disclosure, circulation or dissemination of the information, he/she acted in good faith. 60 Disclosure of false or misleading information inducing transactions (Sections 277 and 298 of the SFO) Disclosure of false or misleading information inducing transactions occurs when, in Hong Kong or elsewhere, a person discloses, circulates or disseminates, or authorizes or is concerned in the disclosure, circulation or dissemination of, information that is likely: to induce another person to subscribe for securities, or deal in futures contracts, in Hong Kong; to induce the sale or purchase in Hong Kong of securities by another person; or to maintain, increase, reduce or stabilize the price of securities of futures contracts in Hong Kong if: the information is false or misleading as to a material fact or through the omission of a material fact; and the person knows that, or is reckless or, for civil market misconduct only, negligent as to whether, the information is false or misleading as to a material fact or through the omission of a material fact. 61 It is a defense for those who are able to establish that he/she had unwittingly disseminated false or misleading information in the course of their business, which involved disseminating information received from others and those who are not in a position to check the accuracy of that information. In general, such defenses can be applicable to: persons in the business of issuing or reproducing information supplied by others, such as publishers or printers; persons whose business involves electronically providing access to third party information, where the information is wholly devised by another person, such as those operating internet websites providing access to third party information; or broadcasters of information devised wholly by another person. 62 These defenses may only be relied upon if the person did not know that the information was materially false or misleading at the time of disclosure. They are narrowly drafted and will only be available in very specific circumstances. In particular, they are only available where the information has been devised entirely by someone else and the defendant and his/her officers and employees did not in any way modify or exercise control over the information. These provisions may have significant implications for issuers of securities and their advisers. While it must be the case that the information is likely to have an effect in Hong Kong, the disclosure of information may occur anywhere. Further, it is not necessary for the information disclosed to in fact have such an effect. It is sufficient if the information is likely to have that effect. Given that negligence as to whether the information is materially false or misleading is sufficient to establish civil liability (and recklessness may establish criminal liability), these provisions can be of considerable significance for roadshows, research analysts and the imparting of information to potential investors generally. Stock market manipulation (Sections 278 and 299 of the SFO) These provisions relate only to transactions in securities. Stock market manipulation occurs when, in Hong Kong or elsewhere, a person enters into or carries out, directly or indirectly, two or more transactions in securities of a corporation that by themselves or in conjunction with any other transaction: increase, or are likely to increase, the price of any securities traded on an exchange in Hong Kong, with the intention of inducing another to purchase or subscribe for, or to refrain from selling, securities of the corporation or those of a related corporation; reduce, or are likely to reduce, the price of any securities traded on an exchange in Hong Kong, with the intention of inducing another to sell, or to refrain from purchasing, securities of the corporation or those of a related corporation; maintain or stabilize, or are likely to maintain or stabilize, the price of any securities traded on an exchange in Hong Kong, with the intention of inducing another to sell, purchase or subscribe for, securities of the corporation or those of a related corporation, or to refrain from so doing. 63 The same conduct in Hong Kong which affects securities traded on an overseas market will also amount to stock market manipulation if the same conduct is unlawful in the country in which the relevant market is situated. 59 Sections 276 and Ibid. 61 Sections 277 and Sections 277(3), (4) and (5) and 298(3), (4) and (5)of the SFO. 63 Sections 278 and 299.
9 Additional criminal offences Division 4 of Part XIV creates three additional offences. These are not within the definition of market misconduct and are not subject to proceedings before the MMT. They are subject only to criminal proceedings. Use of fraudulent or deceptive devices in transactions in securities, futures contracts or leveraged foreign exchange trading (Section 300 of the SFO) Section 300 prohibits a person, directly or indirectly, in a transaction involving securities, futures contracts or leveraged foreign exchange trading to (a) employ any device, scheme or artifice with intent to defraud or deceive; or (b) engage in any act, practice or course of business which is fraudulent or deceptive, or would operate as a fraud or deception. A transaction is defined widely and includes an offer and an invitation (however expressed). Transaction does not need to be a completed transaction. In its ruling 64, the Court of First Instance decided that Section 300: is not restricted to a transaction involving Hong Kong listed securities; applies to a transaction in Hong Kong involving overseas listed securities; applies to an offer (and thus a transaction) in Hong Kong involving overseas listed securities made through a Hong Kong intermediary and executed by an overseas intermediary; and applies to an acceptance (and thus a transaction) in Hong Kong of an offer involving overseas listed securities made outside of Hong Kong. The application of Section 300 to a transaction (including an offer or acceptance) under the last three bullet points above does not amount to an extra-territorial application of the law. Section 300 can be applied to an extra-territorial transaction (including an offer or acceptance) only if there is a nexus to Hong Kong. As a result of the above decision, Section 300 can be used to prosecute insider dealers of overseas listed securities, even though the legislation may not have intended this. The SFC can also take action under Section 300 in cases involving overseas listed securities even if the overseas regulator does not take action. Disclosure of false or misleading information inducing others to enter leveraged foreign exchange contracts (Section 301 of the SFO) Section 301(1) prohibits a person, in Hong Kong or elsewhere, to disclose, circulate or disseminate, or authorize or be concerned in the disclosure, circulation or dissemination of, information that is likely to induce another person to enter into a leveraged foreign exchange contract in Hong Kong if: the information is false or misleading as to a material fact, or is false or misleading through the omission of a material fact; and the person knows that, or is reckless as to whether, the information is false or misleading as to a material fact, or is false or misleading through the omission of a material fact. Section 301(3)-(5) provides for a number of defenses available if a contravention takes place by reason only of the issue or reproduction of information, re-transmission of information or live broadcast of information. Falsely representing dealings in futures contracts on behalf of others (Section 302 of the SFO) Section 302(1) prohibits representation of one person to another person that he/she has on behalf of the other person dealt in, or facilitated or arranged for any dealing in, a futures contract traded on a recognized futures market or by means of authorized automated trading services, if: in fact he/she has not dealt in, or facilitated or arranged for the dealing in, the futures contract; and he/she knows that, or is reckless as to whether, in fact he/she has not so dealt in, or facilitated or arranged for the dealing in, the futures contract. Section 302(2) prohibits representation of one person to another person that he/she has dealt in, or facilitated or arranged for any dealing in, a contract or other instrument substantially resembling a futures contract on behalf of the other person in accordance with the rules of a futures market outside Hong Kong, if: in fact he/she has not dealt in, or facilitated or arranged for the dealing in, the contract or other instrument; and he/she knows that, or is reckless as to whether, in fact he/she has not so dealt in, or facilitated or arranged for the dealing in, the contract or other instrument. 64 See The SFC v Young Bik Fung & Others  HKCFI 57; HCMP 2575/2010 (January 15, 2016).
10 David Richardson Partner Hong Kong (852) Alesya Tepikina Associate Hong Kong (852) This guide has been prepared by Dorsey & Whitney and is for general information only. It is not a full analysis of the matters presented and should not be relied upon as legal or other professional advice. If you would like to discuss the matters contained in this guide, please contact Dorsey & Whitney. Copyright 2016 Dorsey & Whitney LLP
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