麻豆传媒

In addition to applying to the persons described in (iv) and (v) of "Secrecy provision and obligation," the secrecy obligation applies to any “specified person”, namely –

1. the SFC (including executive and non-executive directors);
2. any person who performs work for the SFC (e.g. any of its employees or consultants);
3. a person appointed under any of the relevant provisions (eg, a member of the Takeovers and Mergers Panel or the Market Misconduct Tribunal or an auditor appointed under section 159 of the SFO);
4. a person performing a function under or carrying into effect any of the relevant provisions (eg, a person who conducts an inspection of an intermediary under section 180 or who carries out an investigation under sections 182 and 183 of the SFO); or
5. a person assisting a person referred to in (iv) (by e.g. providing a record or document required under section 179, providing information required under section 181 or providing information and/or attending an interview with an investigator under section 183 of the SFO).

The first, contained in section 378(1), excludes the disclosure of information by a person (e.g. a person authorized by the SFC under section 179 or 182) in the performance of a function under any of the relevant provisions or for the purpose of carrying into effect or doing anything authorized under any of the relevant provisions. For example, an investigator does not breach the secrecy obligation by disclosing to a witness during - and for the purposes of - an interview, information such as the details of trades in securities that are suspected to be related to an offence which is under investigation. However, the person receiving such information (in this example, the witness) is bound by the secrecy obligation (see (iv) of "Secrecy provision and obligation" and "Examples of information that might typically be disclosed under relevant provisions of the SFO").

In addition, section 378(2) lists seven forms of disclosure of information that do not attract secrecy at all. These pertain to disclosure of information -

1. which has already been made available to the public;
2. with a view to the institution of, or otherwise for the purposes of, any criminal proceedings or any investigation carried out under the relevant provisions or otherwise, in Hong Kong;
3. for the purpose of seeking professional advice from, or giving advice by, a counsel or solicitor, or other professional adviser acting or proposing to act in a professional capacity in relation to any matter arising under any of the relevant provisions;
4. in connection with any judicial or other proceedings to which the person making disclosure is a party;
5. in accordance with an order of the HK courts, a law that applies in or extends to Hong Kong or a requirement made under such a law;
6. to the Hong Kong Deposit Protection Board for the purpose of enabling or assisting it to perform its statutory functions; and
7. by the auditors of a listed corporation to the SFC, the Hong Kong Monetary Authority or the Insurance Authority under section 381 of the SFO. 

There are other gateways through which confidential information may be disclosed pursuant to section 378(3) of the SFO, but these only apply to the SFC. The disclosure gateway in section 378(4) of the SFO applies only to auditors appointed under section 159 or 160 of the SFO.

The SFC’s view is that the sort of person envisaged as falling within the category of “other professional adviser” is someone who is qualified to advise on the issues relevant to the matter that has arisen under any of the relevant provisions (eg, a forensic accountant, a trading specialist or a listing agent) and who is acting in a professional capacity towards the person being advised.

The only circumstance under which a person may disclose information to which the secrecy obligation applies without breaching that obligation is with the SFC’s consent for onward disclosure under section 378(7) (or under section 378(8), where information is disclosed to an auditor under section 378(4)(b)). Application for such consent should be made in writing, stating the full extent of the information sought to be disclosed, the persons to whom it is proposed to be disclosed and the reasons for the proposed disclosure. Where the SFC grants consent, it does so in writing, setting out the information to which the consent relates, the persons to whom disclosure may be made and any conditions to which the consent is subject.

Unless the person (whether an individual or a body of persons that is either a corporate or an unincorporate) has been asked by the SFC to keep the matter completely secret (or, secret from another individual or body of persons named by the SFC), the SFC’s consent to the following notifications (and only these) can be assumed without the need to make a formal application:

1. the fact that he (or it, in the case of a corporation, etc.) is bound by the secrecy obligation
2. the general nature of the matter (but without revealing anything specific about it), which has given rise to the secrecy obligation;
3. the means by which he or it came to be bound by the secrecy obligation (e.g. upon receiving an investigator’s notice under section 183 of the SFO);
4. the date, time and place at which he or it is required to provide information or documents to the SFC or attend an interview by an investigator, if disclosed to the following persons only -
1. in the case of an individual bound by the secrecy obligation, to his employer, spouse or partner and, where the individual is a regulated person, his firm’s responsible officer or executive officer, compliance officer or in-house lawyer;
2. in the case of a corporation bound by the secrecy obligation, to its board of directors, its holding company or indemnity insurers.

A person who breaches the secrecy obligation is liable to prosecution and upon conviction on indictment to a maximum fine of $1 million and imprisonment for up to two years or upon summary conviction, to a maximum fine of $100,000 and imprisonment for up to six months. A regulated person may, in addition, be disciplined.

In the SFC’s view, it is because the secrecy obligation exists as a safeguard –

1. of the public interest that the SFC should not be compromised in its operations and the pursuit of its regulatory objectives by the leakage of confidential information;
2. of the right of all persons, whether individuals or corporations, to be presumed innocent until proven guilty;
3. of the reputation of individuals and the goodwill of firms investigated by the SFC or undergoing disciplinary proceedings;
4. of commercially sensitive information that intermediaries, and others cooperating with the SFC, would be unwilling to disclose to the SFC if there were danger that the information would be misused;
5. of the integrity of the market, for example by keeping price-sensitive information secret pending its release (eg, in an announcement by a listed corporation) to the market; and
6. of the status of Hong Kong as an international financial centre, by ensuring that the SFC complies with international standards of confidentiality comparable to those observed by its counterpart regulators in all major markets internationally.