Thomas Lau's leave to appeal rejected again

PUBLISHED : Friday, 10 April, 2009, 12:00am
UPDATED : Friday, 10 April, 2009, 12:00am

Thomas Lau Luen-hung of property developer Chinese Estates Holdings was yesterday barred by the Court of Appeal from seeking leave to appeal to quash his HK$15 million penalty for insider dealing.

In September 2006, Mr Lau was identified as an insider dealer by the Insider Dealing Tribunal and was ordered to pay to the government the HK$15.3 million in total profit he gained as the result of insider dealing in Asia Orient Holdings shares in 1999.

He was further ordered to pay a penalty of HK$15 million under the Securities (Insider Dealing) Ordinance.

In December 2006, the tribunal's order was registered with the Court of First Instance and Mr Lau paid accordingly.

In May 2008, he applied to seek leave to appeal to quash the penalty order, following a declaration made by the Court of Final Appeal in businessman Koon Wing-yee's case in 2007 that the penalty section of the ordinance was invalid.

Mr Lau argued that the declaration operated retrospectively and that he should be able to benefit from the judgment, notwithstanding a delay of 20 months in bringing the appeal.

However, the appeal court, comprised of Mr Justice Geoffrey Ma Tao-li, Mr Justice Robert Tang Ching and Mr Justice Frank Stock, yesterday rejected his application for an extension of time to appeal.

In his judgment yesterday, Mr Justice Tang noted that this was Mr Lau's second attempt to seek leave to appeal.

The first was made after the decision in the Koon Wing-yee case and that application had also been rejected.

He also stated that only in very exceptional circumstances should time be extended for appeal on the grounds that an authoritative judgment subsequent to the conviction had overturned the previous understanding of the law.

In Mr Lau's case, it was argued that it concerned a substantial sum of money.

But Mr Justice Tang said: 'The amount is substantial but it has to be viewed in the context of the amount of profit which was held to have been attributable to the insider dealing by [Mr Lau].'

In yesterday's judgment, Mr Justice Stock also said: 'The consequence of extending time in this particular case would not only be to open the door to repayments in a myriad of instances of those found to be culpable insider dealers, where the findings cannot be the subject of any justifiable attack, but would also significantly lower the threshold of true [exceptionality] designed for circumstances peculiar to specific rare cases.'

Serving justice

Special circumstances required for time to be extended in an appeal

Penalty amount that Thomas Lau sought leave to appeal, in HK$: $15m