The defendants were convicted of insider trading by the Insider Dealing Tribunal. The defendants argued that Tribunal rules were violative of the defendants’ right to be free from self-incrimination. They also argued that the Tribunal applied against them the incorrect standard of proof – the correct standard of proof should have been that of a criminal proceeding, not of a civil proceeding, as mandated in Articles 10 and 11 of the Bill of Rights (Article 14 of the ICCPR).
In reaching its decision, the Court of Final Appeal relied on the European Court of Human Rights (“the Strasbourg Court”) and the General Comments of the UN Human Rights Committee under the ICCPR. Justice Mason, the former Chief Justice of Australia, was a visiting judge. He said that decisions of the Strasbourg Court, though not binding on Hong Kong courts, were “of high persuasive authority”. He also noted the similarity of Article 10 of Hong Kong’s Bill of Rights to Article 6(1) of the European Convention. Justice Mason then applied the Strasbourg Court criteria for determining whether there is a “criminal charge” as per Article 6 of the Convention. He also referred to General Comment No. 32 of the Human Rights Committee , which related to Article 14 of the ICCPR.
The CFA thus held that the standard of proof of a criminal proceeding was the proper standard of proof in this case, and thus the defendants should have had the benefit of such a standard. The CFA also held that the defendants’ right to freedom from self-incrimination had been violated. Regarding the standard of proof, the CFA noted that neither the ICCPR nor the European Convention were clear on the matter. Furthermore, the relevant law of the Strasbourg Court was not conclusive either. Accordingly, the Court relied heavily on the Human Rights Committee’s General Comment No. 13 and General Comment No. 32, which both suggested that proof beyond a reasonable doubt was the proper standard as per Article 14 of the ICCPR. Justice Mason said, “The General Comments [of the Human Rights Committee] are a valuable jurisprudential resource which is availed of by the Committee in its adjudicative role. While the General Comments are not binding on this Court, they provide influential guidance as to how the ICCPR is applied and will be applied by the Committee when sitting as a judicial body in making determinations.”
(found in "International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong" by Albert H.Y. Chen, pp. 27-30, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1527076 )
