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Hong Kong Court Confirms SFC’s Investigation Powers Over Digital Devices in Search Operations

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In five recent judicial review applications brought against the Securities and Futures Commission (SFC) and the Magistrate (HCAL 2132, 2133, 2134, 2136 and 2137/2018), the Court of First Instance dismissed challenges to the SFC’s decisions to seize and retain digital devices during its search operations. The Court has confirmed the wide scope of documents that can be seized by the SFC and the SFC’s power to require production of passwords to email accounts or digital devices.

Under the Securities and Futures Ordinance (SFO), the SFC is empowered, among other things, to require production of relevant information, compel a person to attend an interview for answering questions, and apply to a Magistrate for a search warrant to enter and search premises and seize documents. Such search operations (often referred to as “dawn raids”) can include a company’s office premises or an individual’s private residence.

Our alert discusses the implications of the Court’s decision and suggests practical steps to better prepare for dawn raids and protect your data.

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Cynthia Tang is the head of the Dispute Resolution Group for the Firm’s Hong Kong and China offices. She has over 25 years of experience in Hong Kong and Asia. Chambers Asia Pacific, PLC Which Lawyer? and Asia Pacific Legal 500 have ranked her as one of the leading lawyers in the Financial Services/Regulatory field for 5 consecutive years. She previously served on a number of committees in the Securities and Futures Commission and is currently appointed by the Hong Kong Government as a Member of the Standing Committee on Company Law Reform and Disciplinary Panel A of the Hong Kong Institute of Certified Public Accountants. She is also a China-Appointed Attesting Officer.

Author

Bryan Ng is a partner in Baker McKenzie's Hong Kong office and a member of the Firm's Dispute Resolution Group. He has written articles and delivered trainings and seminars on topical issues including regulatory enforcement matters. Mr. Ng’s practice focuses on disputes related to financial services, regulatory investigations, commercial disputes, and insolvency-related matters. He advises and represents clients from the financial industry in regulatory investigations and disciplinary proceedings. Mr. Ng also represents clients in arbitration and court proceedings, including shareholders' disputes and judicial review.

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Cheryl Tang is an Associate in Baker McKenzie, Hong Kong office.

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