KOON WING YEE v. THE SECURITIES & FUTURES COMMISSION

HCAL 7/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 7 OF 2007

______________________

______________________

______________________

D E C I S I O N

______________________

1.  In a reserved judgement handed down on 2 November 2007, I rejected an application for judicial review by Mr Koon in which he sought various declarations, the effect of which, in simple terms, would have prevented the SFC from requiring Mr Koon to give answers to questions put to him at interview by the SFC.  The effect of the judgment is that Mr Koon must attend for interview and answer questions under pain of penalty.  He may not refuse to answer questions up on the grounds that the answer may incriminate him.

2.  Mr Koon has lodged an appeal to the Court of Appeal against that decision.  The appeal is due to be heard in July.

3.  Before the appeal is heard the SFC, in reliance upon the judgement, have demanded that Mr Koon now attend for interview.  Consequently Mr Koon applies for a stay of the judgment pending the appeal.

4.  On 28 February 2008, I heard argument from counsel, and following that argument ordered that there should be a stay of the judgment, and that I would give my reasons for that decision later.  This I now do.

5.  I draw the relevant principles to be applied from the decision of Ma J, as he then was, in Star Play Development Ltd v Bess Fashion Management Company Ltd, (unreported, HCA 4726/2001, 7 June 2002).  In the context of this case the following principles are relevant:

(i)	In determining the question whether or not an appeal will be rendered nugatory, in the absence of the stay, the court must have regard to the nature of the order that is the subject matter of the appeal;
(ii)	An appeal being rendered nugatory does not mean in all cases, that without a stay, the appellant faces ruin or the loss of all his property.  Demonstrating that the failure to grant a stay would have a serious deleterious effect is enough;
(iii)	However exceptional circumstances may otherwise justify a stay, if the court is not convinced that there exist arguable grounds of appeal, no stay will be granted.

6.  Mr Westbrook sensibly accepts that if there is not a stay, the appeal will be rendered irredeemably nugatory.  Mr Koon will have been required to attend for interview, and will have been compelled to give answers, and nothing can change or remedy that situation.  Mr Westbrook contends that there simply are no arguable grounds of appeal and that accordingly the stay should not be granted.

7.  At first sight, I was clearly of the view that the stay could not be resisted.  The rights which Mr Koon seeks to protect are fundamental rights, enshrined in the Bill of Rights Ordinance.  I have no doubt that I must exercise the greatest caution in taking a step which might result in the erosion of such a fundamental right.

8.  Mr Westbrook says that the application for judicial review was not merely premature, as I found, but was totally misconceived.  Consequently, he said there could be no basis upon which an appeal might succeed.  He pointed to ample authority, binding upon me, that the legislature has the power to remove the common law right to silence.  He drew my attention to the fact that while the court has in the past interfered with the use to which compulsorily obtained answers can be put, there is no authority in which it had ever been held that once the privilege against self-incrimination has been removed by legislation, then the person being interviewed retains the right, lawfully to refuse to answer questions.

9.  The question as to whether the application for judicial review was premature goes both to the jurisdiction and substance in the present case.  There can be no doubt, subsequent to Leung v Secretary for Justice [2006] 4 HKLRD 211, that it is appropriate for a court to consider fundamental rights in judicial review in anticipation of a potential breach, as well as after an alleged breach.  In this sense, Mr Koon’s application was not premature.

10.  The issue as to prematurity also arises within the question as to whether or not Market Misconduct Tribunal proceedings constitute criminal proceedings or not.  Earlier this week that this same issue was brought directly before the Court of Final Appeal in relation to the Insider Dealing Tribunal.  The judgement of the CFA is awaited, and may have a considerable impact on Mr Koon’s position.

11.  Mr Koon’s case on appeal is merely arguable, it cannot be accorded any higher status.  But I cannot say that it has no prospect of success whatsoever. However, I am very concerned at the risk that there may be an erosion of a fundamental right contained in the Bill of Rights Ordinance that may not be capable of remedy.   Such a situation goes beyond a mere a serious deleterious effect

12.  Having regard to the fact that if there is no stay the appeal will be rendered irredeemably nugatory, on the whole of the circumstances, I granted the stay.

13.  I should add that I have done so with some real reluctance.  That reluctance arises because it is becoming apparent that there is a practice developing on the part of  persons subject to enquiry by the SFC, to challenge every step of the way by judicial review, and to appeal as far as possible, any decision that goes against such a person.  Few of these challenges have had any success.  It may well soon arise that a robust attitude will have to be taken by the courts in respect of these satellite challenges to SFC investigations, which are causing serious delays to proper proceedings being brought before either the courts or the Market Misconduct Tribunal.

14.  Costs on the application for the stay in the cause in the appeal.  There will be a certificate for two counsel.

HCAL 7/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 7 OF 2007

____________

____________

Before: Hon Saunders J in Court

_______________

J U D G M E N T

_______________

Introduction

1.  On 28 December 2006, Mr Koon received a notice requiring him to attend an interview by an Investigator of the Securities and Futures Commission, (SFC).  The notice informed Mr Koon that he was a person under investigation in respect of offences of false trading and stock price rigging and/or stock market manipulation, or that persons may have been engaged in false trading and stock price rigging and/or stock market manipulation.

2.  The notice required Mr Koon to both attend at a specific time on a specific date, and to answer questions relating to the matters under investigation.

3.  Mr Koon has been granted leave to bring judicial review proceedings in respect of the issue of notice and the requirement to answer questions.

4.  Counsel for Mr Koon contends that the notice is in breach of the Hong Kong Bill of Rights Ordinance, Cap 383, in two respects:

(a)	under Article 11(2)(g), which guarantees to every person the right not to be compelled to testify against himself or to confess guilt in the determination of any criminal charge against him; and
(b)	under Article 10, which provides that in the determination of any criminal charge against a person or of his rights and obligations in a suit at law, everyone should be entitled, into a the, to a fair hearing by an impartial tribunal.

Also relevant to the proceedings is Article 14, which provides that no one shall be subject to arbitrary or unlawful interference with his privacy, and that everyone has the right to the protection of the law against such interference.

The relief sought:

5.  As the proceedings progressed, the relief sought, principally as to the declarations Mr Koon invited the court to make, were amended.  In their final format they were as follows:

“1A	Declarations that:
	(I)	Proceedings in the Market Misconduct Tribunal as provided for by the Securities and Futures Ordinance, Cap 571, are criminal in nature for the purposes of the Hong Kong Bill of Rights Ordinance, Cap 383, by reason of which the guarantees and requirements set forth in Article 11 of the Hong Kong Bill of Rights Ordinance are of application to the protection of persons subject proceedings in the said Tribunal.
	(II)	Further, the requirements of Article 10 of the Hong Kong Bill of Rights Ordinance in respect of a fair hearing by an impartial tribunal established by law are not satisfied by the Market Misconduct Tribunal.
	(III)	The abrogation of the privilege against self-incrimination of a person the subject of investigation as effected by Part VIII of the Securities and Futures Ordinance is disproportionate, by virtue of the matters declared in (I) and (II) above and Article 14 of the Bill of Rights Ordinance.
	(IV)	By reason of the matters declared in (III) above, it is lawful for a person the subject of an investigation under Part VIII of the Securities and Futures Ordinance to refuse to answer any question on the grounds that such uncertain may incriminate him.”

6.  The relevant provision of the Securities and Futures Ordinance, Cap 571, requiring Mr Koon to answer the questions put to him by the SFC investigators is s 183.  This provision requires, inter alia, that the person under investigation must attend before the investigator at the time and place the investigator requires, and answer any question relating to the matters under investigation that the investigator may raise with him.  By s 184, it is an offence, without reasonable excuse, to fail to attend before the investigator as required all to answer questions.

7.  In simple terms, the effect of s 183 is to take away from a person the right that is commonly referred to as the “right of silence”, by compelling answers, on the pain of penalty.

The proceedings are premature:

8.  Mr Bell argues that the proceedings are premature, and that issues as to the abrogation of the right to silence, or the impartiality of the Market Misconduct Tribunal, have not yet arisen. 

9.  He submits that the investigation being undertaken by the SFC may result in three different scenarios.  In fact, there are five different scenarios because in two of Mr Bell’s three scenarios there are two subcategories.  The scenarios and subcategories that may result from the investigation are:

(a)		the investigation may conclude and no criminal charges be brought against any person nor may any person or matter be brought before the Market Misconduct Tribunal;
(b)	(i)	criminal proceedings may be brought against Mr Koon;
	(ii)	criminal proceedings may be brought against persons other than Mr Koon;
(c)	(i)	Market Misconduct Tribunal proceedings may be brought against Mr Koon;
	(ii)	Market Misconduct Tribunal proceedings may be brought against persons other than Mr Koon.

10.  At the present time no person faces any criminal charge, neither does any person face proceedings in the Market Misconduct Tribunal. 

11.  There is nothing in the Bill of Rights, Mr Bell says, to give any person protection from legislation requiring that person, on pain of penalty, to answer questions put by an investigating authority.  What the Bill of Rights does do, Mr Bell says, is to give a person protection from his answers being used in criminal proceedings against him, or from being compelled to give evidence in criminal proceedings against him.

The argument is unanswerable on the authorities:

12.  It is quite plain that Mr Bell is right.  Mr Koon has not been charged with any offence, and at the time at which he will be interviewed he will not face any criminal charge in relation to the matters on which he is to be interviewed.  Neither have any proceedings been instituted in the Market Misconduct Tribunal against him, and they may never be instituted.

13.  It has been clearly established in HKSAR v Lee Ming Tee & Anor [2001] HKLRD 599 CFA, that Article 11(2)(g) of the Bill of Rights only applies to persons who face a criminal charge: see Ribeiro PJ at 635F, (a judgment with which all other members of the court agreed). The decision makes it clear that the protection provided by Article 11(2)(g) is a testimonial immunity only, and much narrower in scope than the common-law privilege against self-incrimination.

14.  The decision is conclusive and binding upon me.  It is unfortunate that in the course of argument this passage was not drawn to my attention, the decision in Lee Ming Tee having been cited by both counsel for other purposes.  Had I been referred to that passage it is highly likely that the hearing may have been drastically shortened.

15.  It may well be that at some stage in the future Mr Koon will face criminal proceedings in relation to the matters on which he will be interviewed.  In that circumstance Mr Koon will be entitled to the protection of s 187(2) of the Ordinance, which renders his compelled answers inadmissible in those criminal proceedings.  The testimonial immunity contained in the Bill of Rights is accordingly preserved in the event of a criminal prosecution under the Ordinance.

16.  It is no argument to say that the compelled answers may result in derivative information being obtained.  Lee Ming Tee establishes that while the compelled answers may not be admissible, derivative use of information gained from those answers is admissible.

17.  But at the present time Mr Koon faces no criminal charge and the provisions of the Bill of Rights are simply not engaged.  As may be seen from the scenarios set out in para 9 above, in only one of the five options, that of proceedings in the Market Misconduct Tribunal, is there in it possibility that Mr Koon’s compelled answers may be given in evidence against him.

18.  Mr John J E Swain mounted a strong, possibly even compelling, argument that the terms of the Ordinance are such that proceedings before the Market Misconduct Tribunal constitute criminal proceedings.  The essence of the argument is that the introduction into the Ordinance of a statutory civil remedy for any person who has suffered a loss as a result of market misconduct, means that any disgorgement order that may be made by the Market Misconduct Tribunal constitutes a penalty, because a person facing disgorgement order is in fact liable to pay twice.

19.  There is no similar restriction in the Ordinance, to that in relation to criminal proceedings, on the use of any answers Mr Koon may be obliged to give to an investigator in subsequent Market Misconduct Tribunal proceedings.  Compelled answers are, apparently, admissible before the Market Misconduct Tribunal.

20.  If it should transpire that Mr Koon is brought before the Market Misconduct Tribunal the issue as to the use of his answers in that forum will arise for consideration and must be considered then.  The arguments made by Mr Swain as to the criminal nature of proceedings before the Market Misconduct Tribunal will then arise for consideration by the courts.

21.  However that argument is no answer to the notice requiring him to attend for interview, when Mr Koon faces neither a criminal charge nor proceedings in the Market Misconduct Tribunal, both of which may never eventuate.

The Article 10 argument and impartiality of the Tribunal:

22.  The position must be precisely the same in respect of the Article 10 argument which revolves around a contention that the inquisitorial nature of the Market Misconduct Tribunal offends Article 10 which requires that the Tribunal be impartial.

23.  Again until such time as proceedings commenced in the Market Misconduct Tribunal, no issue has arisen for consideration.  It will only be in the event that proceedings are so commenced that the question will arise.

The historical position:

24.  Although much less comprehensive than s 183, its predecessor, s 33(1) Securities and Futures Commission Ordinance, Cap 24, (now repealed), is to precisely the same effect.  Under that old provision a person under investigation was obliged to attend to interview and give answers on pain of penalty for refusal to answer. 

25.  In R v Securities and Futures Commission Ex Parte Lee Kwok Hung, (Unreported, CA, Civ 7/1993), (unfortunately not cited in the course of argument), in which Sir John Swain SC appeared as counsel for the appellant, the Court of Appeal found that that provision did not offend either Article 11(2)(g) or Article 10 of the Bill of Rights.  Just as in the present case, the subject of the notice in Lee Kwok Hung was not, at the time of receipt of the notice, facing either criminal or Insider Dealing Tribunal proceedings.

26.  Nothing was mounted in the argument to persuade me that the circumstances have changed since Lee Kwok Hung.  Until such time as proceedings are brought in the Market Misconduct Tribunal no issue arises for consideration under the Bill of Rights.

Conclusion:

27.  There is no merit whatsoever in the application for judicial review which is dismissed.

28.  Mr Koon must pay the costs of the Securities and Futures Commission.

Sir John Swaine QC, SC, and Mr John J E Swaine, instructed by Messrs William Sin & Co, for the Applicant

Mr Adrian Bell, instructed by the Securities & Futures Commission.

Appeal by the applicant to Court of Appeal dismissed. Please refer to CACV369/2007 dated 3 September 2008

HCAL 7/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 7 OF 2007

____________

____________

____________

Before: Hon Saunders J in Chambers

_______________

J U D G M E N T

_______________

Introduction

1.  This is an application for leave to make application for Judicial Review to quash a Notice issued by the Securities and Futures Commission, (the Commission) under section 183(1) of the Securities and Futures Ordinance Cap 571, (the Ordinance), requiring the Applicant to attend an interview and to answer questions in connection with suspected offences under the Ordinance.

2.  The Notice was issued following a Direction to Investigate, (the Direction), issued under section 182(1) of the Ordinance, that Direction having been signed by one M J Kenny, an officer and a delegate of the Commission.  Following the issue of the Direction, the Notice requiring the Applicant to attend and answer questions was issued.  Plainly, the validity of the Notice is dependent upon the validity of the Direction.

3.  First, it is said that the Direction is invalid because section 182 requires, as a precondition for the commencement of the investigation of suspected offences, that the Commission has reasonable cause to believe that such suspected offences had been committed.  The argument is that the formulation of the opinion that there is reasonable cause to believe that suspected offences have been committed, is a judgement that cannot be delegated by the Commission to its offices.  Second, it is argued that the Notice breaches the fundamental protection guaranteed by Article 11 of the Hong Kong Bill of Rights Ordinance, namely that an accused person should not be compelled to testify against himself or to confess guilt.

The delegation argument:

4.  The argument that the power to formulate the opinion that the Commission has reasonable cause to believe that such suspected offences had been committed, is not delegable, is based upon the decision in Ratnagopal v AG [1970] AC 974, a decision of the Privy Council, on appeal from the Supreme Court of Ceylon.

5.  I am satisfied that the argument is fundamentally flawed.  The headnote to the report adequately sets out the appropriate facts in the following terms:

10.  The argument is that the power of the Market Misconduct Tribunal to impose a disgorgement order on a person found to be guilty of market misconduct constitutes a penalty thereby making the proceedings before the Market Misconduct Tribunal criminal proceedings.  It is then said that if the proceedings are criminal proceedings, the legislation unlawfully removes the right to silence to which a person facing criminal proceedings is entitled.

11.  Under the provisions of the Ordinance, conduct which falls generally under the description of market misconduct may be dealt with either in the criminal courts of Hong Kong, by way of criminal prosecution, or by way of civil proceedings before the Market Misconduct Tribunal.  In this respect there is a marked difference between the current regime and that involving the Insider Dealing Tribunal, in that in the time of the Insider Dealing Tribunal, conduct now described as market misconduct could not be prosecuted in the criminal courts.  There is now in place a dual regime.

12.  It is clear that a person required to attend for examination upon a Notice is obliged to answer the questions posed or to produce the documents required to be produced, under penalty of fine or imprisonment: see section 184.

13.  Art. 11(ii)(g) of the Bill of Rights is quite clear:

“(ii)    in the determination of any criminal charge against him everyone shall be entitled to the following guarantees, in full equality,

(g)  not to be compelled to testify against himself or to confess guilt.” 

Consequently, any evidence obtained, or confession obtained, pursuant to an interview following a Notice, will be inadmissible in criminal proceedings against the subject to the notice.  This right is commonly known as “the right to silence”. 

14.  Plainly, the terms of any interview obtained pursuant to a Notice will not be admissible against the subject of the Notice, in criminal proceedings under the Ordinance in the courts of Hong Kong.  Consequently, in being required to answer questions pursuant to the Notice the Applicant is not put at risk of prosecution in the criminal courts of Hong Kong, in reliance upon any answer he may give.

15.  The argument of the applicant properly acknowledges this, but contends that proceedings before the Market Misconduct Tribunal are criminal in nature, because the provisions upon which the Market Misconduct Tribunal will rely in dealing with any person found to have committed Market Misconduct, section 257, permit the Tribunal to order that the person must pay to the Government an amount not exceeding the amount of any profit gained, or loss avoided, by the person, as a result of the market misconduct in question: see section 257(1)(d).  Such an order is usually known as a disgorgement order.  Other than costs, no other financial orders may be made against a person by the Market Misconduct Tribunal.  The Market Misconduct Tribunal has no power of imprisonment in relation to market misconduct.

16.  The essence of the argument for the Applicant is that because the order that may be made by the Market Misconduct Tribunal will, in circumstances where shares have been retained, deal with notional profits, that is profits which have not been made but which could have been made, or losses avoided, which are always by their very nature notional losses, the order made will constitute a penalty. 

17.  Mr Swain submitted that the decision of the Court of Final Appeal in Insider Dealing Tribunal v Shek Mei Ling (1999) 2 HKCFAR 205 was authority for the proposition that where an insider dealer acquired shares as a result of insider dealing, and sold those shares after the relevant information was known to the public but prior to it becoming crystallised in the market, he would be liable, on a disgorgement order, not only to repay the profit made as at the date of the sale, but also to the notional profit assessed as at the date of the crystallisation of the information. 

18.  With the greatest respect to Mr Swain, an examination of the decision makes it absolutely plain that that is not so.  A disgorgement order imposed on a person who has sold shares after information becomes known to the public, but before the information is fully absorbed by the market, is as to the actual profit achieved: see p 210H-J.  The concept of a notional profit comes into play only when the shares are retained after the information has been absorbed by the market: see p 211A-E.

19.  In my view the proposition that a disgorgement order constitutes a penalty, and that accordingly the proceedings are criminal proceedings, is simply not capable of successful argument.  Whether actual profits made, notional profits made, or notional losses avoided, are ordered to be paid to the Government, the sums ordered are merely a restitution to the State of an assessment of the benefit achieved by the person found to have carried out market misconduct, which benefit, having accrued by virtue of market misconduct, that person ought not to be entitled to retain.  Any sanction of a financial nature over and above any such sum so ordered plainly would constitute a penalty.  But it is clear that under the Ordinance the Tribunal has no power to order any other financial sanction.

20.  The Applicant seeks also to rely upon Han v Commissioners of Customs & Excise [2001] 1 WLR 2253.  It is important to remember that in that case, in addition to the tax that could be ordered to be paid, the Commissioners were entitled to impose a penalty up to the sum of 100% of the tax evaded.  The Market Misconduct Tribunal has no jurisdiction at all to impose any penalty in addition to requiring disgorgement of profits gained all losses avoided.  The case is plainly distinguishable.

21.  The other authority relied upon by the Applicant is King v Walden (Inspector of Taxes) [2001] 1 STC 822, [2001] BPIR 1012.  There, Jacobs J. determined that, having regard to the nature and degree of the severity of the potential and actual penalty faced by the taxpayer, the assessments and appeals were proceedings in which a person was charged with a “criminal offence”.  Again that was a taxation matter where penalties up to the sum of 100% of the tax evaded might be imposed, in addition to an order for the payment of the tax.  The authority is distinguishable on the same basis as that in Han.

22.  The contention that the disgorgement orders that may be made by the Market Misconduct Tribunal constitute a penalty may be usefully tested by comparing the distinction between liquidated damages and a penalty at civil law.  An integral factor of liquidated damages is that the sum must be capable of arithmetical calculation, and that it is a proper reflection of the damage caused.  On the other hand a penalty is an arbitrary sum imposed by way of punishment, usually exceeding any sum required to properly remedy any damage that might have been caused.

23.  It is clear in my view, having regard to the mode of calculation used to determine a profit gained, or a loss avoided, in the context of market misconduct, the sum determined is not a penalty imposed by way of punishment, but a sum arrived at by arithmetic calculation, properly representing the appropriate amounts which a person found to have committed market misconduct, should not be entitled to retain as a result of that market misconduct.  The power vested in the former Insider Dealing Tribunal to impose an additional requirement to pay a sum equivalent to up to three times the profit gained or loss avoided is, on the other hand, arguably a penalty.

24.  I am satisfied that the disgorgement orders that may be made by the Market Misconduct Tribunal cannot reasonably be argued to constitute a penalty that is criminal in nature.

(b)  Has the appropriate balance been struck:

25.  However, whether or not the sum payable is a penalty is not the only criteria by which the issue raised by the Applicant must be assessed.

26.  The question of the extent of the right to silence was considered by the Court of Final Appeal in HKSAR v Lee Ming Tee & Anor (2001)4 HKCFAR 133 at 163-172.  The court concluded that a statutory abrogation of the privilege against self-incrimination, with a substituted protection permitting the derivative use of compulsorily obtained self-incriminating material, could be justified if it was not a disproportionate response to a serious social problem.  The question is whether a fair balance had been struck between the general interest of the community in realising the legislative aim on the protection of the fundamental rights of the individual.

27.  It is necessary to bear in mind the provisions of section 187(2) of the Ordinance, whereby if, in response to a question, a person being examined pursuant to a Notice, claims privilege before making the explanation or providing the statement, the answer will not be admissible in evidence against that person in criminal proceedings in a court of law.  There are certain exceptions which are not applicable here.

28.  At this point it must also be borne in mind that the provisions of section 253(4) of the Ordinance provide that a person is not excused, on the ground that to do so might tend to incriminate the person, from complying with an order, notice, prohibition or requirement of the Market Misconduct Tribunal made under section 253(1), which includes the requirement, in section 253(1)(d), to be examined before the Tribunal and to answer truthfully any question the Tribunal considers appropriate for the purposes of the proceedings.  Such a requirement is equally an abrogation of the right to silence. 

29.  In relation to conduct declared by the legislature to constitute market misconduct, the apparent aim of the Ordinance is the protection of public from that misconduct, and the levelling of the playing field upon which all those who choose to enter into dealing in securities must play.  There is a clear argument that that is a significant social concern which calls for strong regulation. 

30.  I am presently of the view that it is strongly arguable that the balancing solution adopted by the legislature, in permitting answers, given compulsorily, to be admissible only in proceedings before the Market Misconduct Tribunal, but not admissible in the criminal courts of Hong Kong, appropriately strikes the fair balance between the general interest of the community in realising the legislative aim and the protection of the fundamental rights of the individual as enshrined in the Bill of Rights.

31.  I have to have regard however to the fact that the right to silence enshrined in the Bill of Rights is a fundamental protection and ought not to be found to have been taken away from the citizens of Hong Kong unless it can be said that the legislature clearly intended to do so and any protection put in place appropriately struck the fair balance required.  That is a matter, involving as it does a value judgement on the issue of the fair balance, which cannot properly be dealt with on an application to leave. Although I consider the chances of success to be slim, I can see the argument that can be made.

32.  Leave to apply for judicial review is granted, limited however to the question as to whether or not the removal of the right to silence in relation the requirement to answer questions pursuant to a Notice issued under section 183(1) of the Ordinance, and in relation to proceedings before the Market Misconduct Tribunal, is in breach of Art. 11(ii)(g) of the Bill of Rights.