Can you remain silent upon receiving a section 181 notice: AA & Anor v The Securities and Futures Commission

Pursuant to section 186 of the Securities and Futures Ordinance (Cap 571) (the SFO), the Securities and Futures Commission (the SFC) may disclose materials which it has compelled a person to provide in Hong Kong to an overseas regulator to assist in the effort of dealing with cross-border regulatory breaches and misconduct in relation to global financial markets.

This article highlights a recent judicial challenge in AA & Anor v The Securities and Futures Commission [2019] HKCFI 246, raised against the SFC for its exercise of investigative powers to assist its Japanese counterparts, in particular the constitutionality of section 181 used by the SFC to demand licensed persons to provide routine trading information, complained of disproportionately abrogating the privilege against self-incrimination.

This client briefing includes the background of the dispute and analyses the case.