The SFC chose to invoke Section 213 of the SFO. The section is a general one and was on the statute books before the creation of the mutually exclusive civil and criminal regimes (Parts XIII and XIV respectively) on 1 April 2003. This section says that, where a person has 'contravened’ any of the relevant provisions of the SFO, the High Court, on the application of the SFC, can make wide-ranging orders including requiring parties to cease-and- desist their conduct and unwind the relevant transactions. The High Court can also order such ancillary orders as it considers necessary. These orders can be granted on an interim basis prior to final determination of the contravention of the relevant provisions of the SFO. In many cases, the interim orders will facilitate settlement of the contravention of the provisions of the SFO.

However in the Tiger Asia case the SFC chose, instead of interim orders, final orders under the Section 213 application to the High Court. Further, the application itself was made under an 'Originating Summons’, which is a procedure more appropriate for determining an issue of law as against facts. The SFC also sought other orders, including for Tiger Asia to account for its profits made or losses avoided under the SFO. Later, the SFC asked for a redistribution of the profits made to the counterparties to Tiger Asia's trades.

The case history

At the High Court the SFC lost the Tiger Asia case. Mr Justice Harris was perplexed by the use of an Originating Summons, including the lack of particulars as to what the SFC was asking for. Rather, in his view, a 'Writ of Summon’ with full argument of the facts and supporting affidavits was appropriate. The SFC then

made it clear before the hearing that it was seeking to allege a contravention of Part XIV of the SFO, meaning a criminal contravention of market misconduct which carries with it a higher standard of proof than a civil case (criminal cases require the facts to be proved 'beyond reasonable doubt’, whereas civil cases are decided on a 'balance of probabilities’). Specifically, in its Section 213 application, the SFC sought to establish that Tiger Asia had contravened Sections 291 and 295 of Part XIV the SFO relating to criminal insider dealing and other market misconduct. Mr Justice Harris ruled that Section 213 provides a mechanism for the SFC to obtain interim relief prior to the determination of civil proceedings with the MMT or criminal proceedings by the courts under Parts XIII and XIV, or final relief after such proceedings. It does not provide a 'third route'. That is, the SFC should have pursued Part XIII and XIV proceedings before going under Section 213 if it desired any final orders as against interim orders. After losing the High Court case, the SFC appealed to the Court of Appeal. Mr Justice Tang VP for the Court of Appeal allowed the SFC's appeal and wrote the unanimous decision for the court. The Court of Appeal identified that the issue relating to the appeal was whether Section 213 of the SFO, which can apply on an interim basis, can also be applied on a final basis to determine a contravention of the criminal provisions under Part XIV of the SFO, specifically Sections 291 and 295 of Part XIV of the SFO. However, instead of determining the entirety of the question, the Court of Appeal felt it was sufficient for it to determine whether the High Court had powers under Section 213 to determine whether there was market misconduct. This was because Section 213 was remedial in nature.