Background 1. The Appellant, Mr Leung, was charged with an offence contrary to section 35J(5)(b) of the Personal Data (Privacy) Ordinance, Cap 486. The prosecution case was that Mr Leung had provided the personal data of his old schoolmate, Mr Lei, to an insurance agent, Ms Tam, for use by her in direct marketing. The personal data in question was Mr Lei’s name and telephone number. Without taking the statutorily prescribed actions before providing that data, such as obtaining Mr Lei’s consent, Mr Leung’s action constituted the said offence. 2. Mr Leung was convicted after trial by a magistrate. He was unrepresented throughout the trial. He testified on his own behalf but called no witness. At the conclusion of all the evidence, counsel for the prosecution made a closing speech, part of which dealt with factual issues in relation to Mr Leung. 3. At trial, Mr Leung raised the question of law as to whether the prosecution was entitled to make a closing speech in the circumstances of the trial. The magistrate ruled that the prosecution was so entitled. On appeal, the Court of First Instance upheld the magistrate’s ruling. The issue for the determination of the Court of Final Appeal is whether the prosecution has a right to a closing speech in a criminal trial in the magistracy where the defendant is unrepresented and, apart from giving evidence himself, has not called any witnesses. Decision of the Court of Final Appeal Question of Law 4. It has consistently been a rule of practice in Hong Kong that where, in criminal trials, a defendant is unrepresented and calls no witnesses apart from giving evidence himself, the prosecution does not have the right to make a closing speech. That practice followed a long-established practice in England and Wales, though there have been some changes recently to that rule in some of their courts. 5. However, a decision of the Court of Appeal in 1988 (R v Au-yeung Tat-shing [1988] 1 HKLR 1) held that that rule did not apply to criminal trials in the magistrates courts. In so deciding, the Court of Appeal relied on section 19(2) of the Magistrates Ordinance which provides that a magistrate shall decide a criminal case “having heard what each party has to say”. The Court of Appeal said that that meant that each party to a trial has a right to a closing speech. Both the magistrate and the Court of First Instance in Mr Leung’s case followed this ruling and the Respondent supported it, saying that the rule applied only in the Court of First Instance and the District Court. 6. The Court of Final Appeal held that R v Au-yeung Tat-shing was wrongly decided and should no longer be followed. The Court held that the legislature could not have intended by the broad phraseology of section 19(2) to undo the rule of practice especially when the rule in question was designed to provide fair procedural protection for defendants and where the rule was addressed with great clarity whenever other statutes dealt with rights of address. The Court held that section 19(2) does not address rights to a closing speech and does not confer such a right upon the prosecution in the case of an unrepresented defendant who, apart from giving evidence himself, has not called any witnesses. It was sufficiently clear that the reference to “having heard what each party has to say” referred back to earlier parts of the proceedings. Disposal of this Appeal 7. It followed that in the present case, the fact that the prosecution had made a closing speech before the magistrate was a material irregularity. However, that material irregularity did not, in the instant case, affect the fairness of the judicial process as a whole because, in this case there was an appeal to the Court of First Instance at the hearing of which the Court of First Instance had access to materials by which it could test and form its own view of the strength of the prosecution case and the reliability of the defence case and at which hearing, importantly, the defendant had the benefit of legal representation. 8. In the circumstances although Mr Leung succeeded in demonstrating that there had been a procedural error based on the decision in R v Au-yeung Tat-shing, he had not succeeded in showing that that error infected the fairness of the process as a whole. 9. Accordingly, the Court upheld the conviction and dismissed Mr Leung’s appeal. 
1. The Appellant was charged with two counts of aiding, abetting, counselling, or procuring the breach of conditions of stay by a foreign domestic helper employed by her. The helper was employed under two consecutive contracts: the first ran from November 2012 to November 2014; the second from December 2014 to November 2016. The prosecution case was that the Appellant instructed the helper to work at places other than the addresses specified under the contracts in breach of her visa conditions (the “Non-Contractual Work”). Due to the 3-year limitation period under section 46(2) of the Immigration Ordinance (Cap. 115), the prosecution did not rely on the Non-Contractual Work allegedly done before October 2014 (the “Pre-Charge Period”). 2. Apart from the criminal proceedings, the helper had also brought a civil claim for compensation in respect of the Non-Contractual Work (the “Civil Claim”). 3. At trial, the Appellant’s counsel sought to cross-examine the helper on the allegations she made in her statement to the Immigration officer in respect of the Non-Contractual Work done in the Pre-Charge Period, in particular in respect of work undertaken at a restaurant in Cheung Chau and an office in Fo Tan (the “Non-Domestic Work”). The stated purposes were to explore her credibility and the reliability of her memory. The magistrate held that these questions were relevant to credit only, not to the primary issue of the trial. Therefore, although he permitted cross-examination on the frequency and time of the Non-Domestic Work, he did not permit questions going into the details. After considering the evidence, he convicted the Appellant of both counts. 4. On appeal, the Appellant argued that the restrictions imposed by the magistrate had deprived her of a fair trial. The Court of First Instance dismissed the appeal and held that the magistrate was right to restrict cross-examination so that it would not serve as a memory-testing exercise on collateral issues. The distinction between cross-examination on primary issue and credit 5. Before this Court, the Appellant contended that, where the witness’s credibility is a core issue of the trial, there is no distinction between cross-examination on a primary issue and on credit. Thus, defence counsel should have been permitted to conduct its cross-examination without any restrictions. This argument was rejected by the Court. There is a distinction between a primary issue, i.e. whether an event on which the prosecution relies in fact occurred, and a collateral issue, i.e. the reliability of evidence proving that a primary issue did or did not occur. The issue of credit is a collateral issue. Such distinction is important and necessary in order to confine the ambit of a trial within proper limits. 6. The extent to which cross-examination on credit should be allowed is subject to the trial judge’s discretion. The discretion should be exercised in favour of permitting cross-examination imputing misconduct when the defence demonstrates that the probative value of such cross-examination clearly outweighs any potential for confusion by the introduction of collateral issues. In making this assessment, two matters are relevant. First, the proximity of the topic for cross-examination with the subject matter of the charge. Secondly, whether there is a solid foundation for casting imputation of misconduct against a witness by reference to that topic. Defence counsel has a duty to explain these matters to the judge in order for him to exercise his discretion properly. Thus, all relevant materials, including the relevant witness statements, should be placed before the judge. The magistrate had exercised his discretion properly 7. Before this Court, the Appellant contended that cross-examination would have been aimed at showing the helper’s statement on the Non-Domestic Work was fabrication. This would be achieved by putting open questions to the helper, followed by calling witnesses who would testify that the helper had never worked at the relevant places. However, this Court observed that these were not the same arguments as those put before the magistrate by trial counsel. They did not explain that the proposed cross-examination was closely related to the subject matter of the charges, as opposed to credit only. Also, they neither informed the magistrate of the basis for saying that the helper had fabricated the allegations, nor of their plan to call witnesses to rebut such allegations. Since trial counsel had not properly explained the need for questioning on the Non-Domestic Work in detail, the magistrate was entitled to set the restrictions on cross-examination in the way he did. There was no solid foundation for casting an imputation 8. In any event, in the context of the present case the cross-examination was only relevant on the credibility of the helper. There had not been any previous finding by any court or tribunal impugning the helper’s credibility over her allegations on the Non-Domestic Work. The rebuttal evidence as outlined by the Appellant before this Court would not unequivocally establish that the helper was untruthful. As there was no solid foundation for imputing that the helper had previously lied in her statement, the Appellant would be bound by the finality rule. Thus, the Appellant did not suffer any substantial or grave injustice. DISPOSITION: 9. Accordingly, the Court unanimously dismissed the appeal. 
1. This appeal concerns a project to construct and operate the Integrated Waste Management Facilities Phase I, commonly known as the municipal waste incinerator (“the facilities”), at an artificial island near Shek Kwu Chau. It is common ground that an environmental permit (“EP”) under s 10 of the Environmental Impact Assessment Ordinance (“EIAO”) Cap 499 was required for the facilities. For that purpose, applications were made under s 5 for a study brief, under s 8 for an Environmental Impact Assessment (“EIA”) report and finally for an EP under s 10 (“the applications”). 2. The Environmental Assessment Division (“EAD”) and the Infrastructure Planning Group (“IPG”) (the former name) belong to 2 separate divisions within the Environmental Protection Department (“EPD”). The applications were made in the name of the Director of Environmental Protection (“the Director”) because the IPG was the proponent of the facilities. The applications were dealt with in the usual way by the EAD, the Director having delegated to the officers in the EAD the requisite powers under the relevant provisions. The applications resulted in decisions made in the name of the Director to approve the EIA report as well as the issue of the EP (“the decisions”). 3. The Appellant challenged the decisions by way of a judicial review application. The Court of First Instance rejected the grounds advanced by the Appellant and dismissed the application for judicial review. The Court of Appeal dismissed the appeal by a majority. Leave was granted to the Appellant to appeal to this Court on the ground that a question of “great general or public importance” is involved in the appeal. Before this Court, the Appellant argued that on its proper construction, the EIAO excluded the Director from ever being the proponent of a designated project which is required to go through the prescribed EIA process under the EIAO. 4. The Court unanimously dismissed the appeal and held that it was clearly envisaged by the legislature that the Director, as waste disposal authority under the Waste Disposal Ordinance (“WDO”) Cap. 354 and proponent of waste disposal facilities, might apply for an EP under the EIAO. In arriving at this conclusion, the Court highlighted the following aspects which provide the context in which the EIAO should be construed: (1) Both before and after the enactment of EIAO, the Director was the waste disposal authority under the WDO. The facilities which are waste disposal facilities were the responsibilities of the Director under WDO. (2) The approval process is highly transparent and that during the approval process other stakeholders have full opportunity to comment and state their views. There is also the possibility of recourse to the courts by way of judicial review. (3) The actual separation of the functions of EAD and the IPG divisions is not deficient in any way and it begs the question to say that the legislature had implicitly rendered illegitimate a scheme which had actually provided functional separation. (4) Waste removal facilities were mentioned expressly in Schedule 2 and made designated projects. The legislature must have been aware of the Director’s duties under the WDO. (5) The EPD included a division dealing specifically with waste management which was involved with waste management policy, infrastructure, facilities and reductions, for which the legislature had voted the necessary funds. 5. Chief Justice Ma observed that a statute must be construed with regard to its context and purpose. His Lordship held that in the context of the EIAO and the WDO the Director can clearly be the proponent of a waste management facility. His Lordship opined that the Director had a statutory responsibility in such matter as the Director was both the “collection authority” and the “waste disposal authority” under the WDO. 6. Ribeiro PJ observed that where the designated project involves waste management, the department one would naturally expect to formulate and implement relevant government policy is the EPD. His Lordship held that it is only if, in playing such role, an inevitable conflict of interest, or the kind of absurdity referred to by the Appellant, must arise or does in fact arise, that the Court should either construe the EIAO as excluding the EPD generally or intervene in relation to a particular project where the objections do in fact arise. 7. Lord Collins of Mapesbury NPJ observed that the Appellant’s contention would make a nonsense of the EIAO as a whole, particularly s 9, which provides that “a person” shall not construct or operate a designated project without an EP. His Lordship held that it is simply impossible to interpret the EIAO as a whole by giving different meanings to the word “person” in what is essentially a single context. 
1. The Appellant was charged with two counts of drug trafficking and one count of drug manufacturing. Although the trial was conducted in English, the jury requested a Chinese interpreter for the closing statements of counsel and the trial judge. Consequently, simultaneous interpretation of the closing statements was provided to the jurors (through headsets), with some listening to the original English version and others listening to the Chinese translation. It is not known which jurors listened in which language. There was also no record of the Chinese translation. The Appellant was convicted of all three counts, and appealed against his conviction claiming the above arrangement deprived him of a fair trial. 2. The Appellant’s appeal was dismissed by the Court of Appeal. Although the arrangement was found to be unusual, the Court of Appeal held that it did not deprive the Appellant of a fair trial. They held that the simultaneous interpretation of the closing statements fell within the meaning of “use” of language under section 5(1) of the Official Languages Ordinance (Cap.5) (“OLO”) and that, since the Appellant was unable to point to any misdirection in law by the trial judge, there was no material risk of misinterpretation given the high quality of the interpretation provided. 3. The Court took a different view. The Court held that, even if simultaneous interpretation was a “use” of language under section 5(1) of the OLO, it did not follow that this precluded a complaint of unfairness in the trial process or inconsistency with the principle of open justice. In the present case, the Court held that the Appellant did not receive a fair trial because the arrangement gave rise to a number of problems and contravened the principle of open justice. 4. First, the simultaneous interpretation did not allow the listener to hear both the speech in its original language and its translation and so translation errors could not be detected immediately. Secondly, jurors would not have been provided with the same summing-up since some listened in English and others in Chinese. Thirdly, there was no record of the translation, so that there was no way to assess what some jurors heard, and thus no way of ascertaining whether there were any misinterpretations. These problems gave rise to a concern that the arrangement infringed the principle of open justice, under which “justice must not only be done, it must be seen to be done”. 5. The Court concluded that the arrangement was not consistent with the principle of open justice, and the Appellant was deprived of a fair trial. The high quality of the interpretation in this case did not answer the criticism that the arrangement resulted in some members of the jury receiving a different set of instructions by way of summing-up to that received by the jurors who listened to the judge address them in English. Nor did it answer the criticism that the arrangement did not ensure that the interpreter’s translation of the summing-up was recorded and that there was a proper record of it which could be reviewed. Open justice required that justice be seen to be done, not assumed to have been done. 6. In answering the questions of law posed for the Court’s decision, the Court held that, where a concern or “red flag” was raised as to the sufficiency of a juror’s knowledge of the language of the proceedings, there is a continuing duty on the trial judge to exercise the discretion conferred under sections 4(2) and 25(1) of the Jury Ordinance (Cap.3) to discharge a juror if the judge were not satisfied that the juror could understand the proceedings. 7. Where such a red flag is identified, the proper approach is first to ascertain the precise nature and extent of the problem. In some cases, it might be possible to discharge one or two jurors and continue the trial with a lesser number of jurors, but sufficient to return a lawful verdict. Whether that might be a suitable solution would depend on the facts of the case. 8. Where, though, the trial judge believed it would be in the interests of a fair trial to provide interpretation services, consecutive interpretation in open court would be preferable. However, the Court’s judgment was not to be understood as encouraging the adoption of consecutive interpretation to the jury, which was at best a mitigating measure for an unexpected problem. DISPOSITION: 9. Accordingly, the Court unanimously allowed the Appellant’s appeal and quashed his convictions and ordered his re-trial on the charges. 
In 1991, the Appellant, a Nigerian national, was arrested at the airport for drug trafficking. He was convicted and sentenced to 24 years’ imprisonment. Whilst in prison, he learned of a Nigerian law which made it an offence to: (a) export drugs into another country where the journey originated in Nigeria; and (b) bring the name of Nigeria into disrepute when found guilty in any foreign country of an offence involving drugs. These offences are punishable by up to 5 years imprisonment and forfeiture of assets, even though the defendant may have been convicted and punished abroad. The Government ordered the Appellant’s deportation to Nigeria after he was released from prison, having been released for good behaviour after serving 16 years of his sentence. He challenged the deportation order by judicial review. He claimed that, if deported to Nigeria, he was likely to be prosecuted and punished again for drug trafficking even though he had already spent 16 years in prison in Hong Kong for that offence. He said deportation would expose him to double jeopardy prohibited by Article 11(6) of the Bill of Rights. He also argued that it would amount to sending him to face cruel, inhuman or degrading treatment or punishment (shortened here to “inhuman treatment”) prohibited by Article 3 of the Bill of Rights. The Government’s case was that section 11 of the Hong Kong Bill of Rights Ordinance prevents persons, like the Appellant, who do not have the right to enter and remain in Hong Kong, from relying on those rights in challenging a deportation order. The Government also argued that the evidence did not establish anything amounting to inhuman treatment. The Court of First Instance set aside the deportation order but the Court of Appeal reinstated it. The Court of Final Appeal dismissed the appeal. The Court of Final Appeal agreed with the courts below that the challenge on the double jeopardy ground failed because section 11 excludes reliance on Article 11(6) and because fresh prosecutions abroad are not covered. But the Court disagreed with the Court of Appeal on inhuman treatment, ruling that the right to protection against such treatment in Article 3 is an absolute and non-derogable right which section 11 cannot override. The Court considered the Government’s suggestion that it could knowingly decide to send someone to face cruel, inhuman or degrading treatment or punishment to be “deeply unattractive”. Nevertheless, the appeal was dismissed because the Court agreed that the evidence did not show anything approaching ill-treatment of the severity required to amount to cruel, inhuman or degrading treatment or punishment. 
1. A foreman of the Food and Environmental Hygiene Department observed the Respondent, an i-Cable employee, on a Government footbridge promoting i-CABLE internet service plans to a woman in front of a cardboard structure on which were attached four i-CABLE posters. 2. The Magistrate convicted the Respondent of the offence of displaying a bill or poster on Government land without permission of the relevant authority contrary to s. 104A(1)(b) and (2) of the Public and Municipal Services Ordinance (Cap. 132). On appeal, the Judge found that the Respondent did not set up the cardboard structure in question, but upheld the Magistrate’s finding that the Respondent was promoting i-Cable services to a woman next to the posters. The Judge rejected the prosecution’s argument that, by standing next to the posters and carrying on promotional sales activities by reference to them, the Respondent had “displayed” the posters, and quashed the Respondent’s conviction. 3. The present appeal raised the question of what act or conduct the prosecution must establish in order to satisfy the element of “displaying” a poster. The Appellant (prosecution) contended that, in addition to physical display, display also included “perceptive display” when a defendant “showed or exhibited; or described in words or explained the contents of, the poster which had already been on display without permission; or any other act(s) or conduct(s) concerned with the continuous display of the poster without permission”. 4. The issue was one of statutory construction and the court would construe the language used in s. 104A in the light of its context and purpose. 5. Construed in accordance with its context and purpose, the word “displayed” in s. 104A should not be given the prosecution’s wider construction so as to embrace perceptive display. The Judge’s narrower construction was to be preferred so that, to come within s. 104A, the act of displaying, albeit not requiring attachment or adherence of the bill or poster to the land, had to concern the physical set up or putting up of the bill or poster. SEPARATE CONCURRING REASONS FOR JUDGMENT OF MR JUSTICE TANG PJ: 6. The Appellant’s formulation of “perceptive display” could give rise to important considerations which did not arise in this case. The proper ambit of the offence created by s. 104A had not been addressed in the submissions and it would be inappropriate to answer the certified question. Suffice it to say, the word “display” could not be stretched to cover the facts of this case. 
1. This appeal arose out of an action for libel in respect of words published in a magazine distributed by the appellant in Hong Kong which suggested that the respondent was involved in paying bribes to corrupt officials on the Mainland. 2. The main issue in the courts below was whether the appellant could avail itself of the defence of innocent dissemination. The Recorder and the Court of Appeal both rejected the appellant’s contention that the defence was only defeated where a subordinate publisher distributed with knowledge that the material contained an actionable libel on the plaintiff to which there was no defence. It was held that the appellant was not entitled to rely on the defence because its ignorance of the defamatory material was due to the adoption of a system whereby it did not vet the issues of the magazine it distributed despite the fact the banner heading on the magazine’s cover was clearly such as to put any reader of it on notice to the possibility that the related articles in it might contain defamatory statements. 3. The question before the Court of Final Appeal regarded the nature of the knowledge possessed by a subordinate publisher which suffices to exclude the defence of innocent dissemination. The appellant contended that the defence is excluded if the subordinate publisher is unable to show on a balance of probabilities that it did not know, and could not reasonably have been expected to have known that: (a) the material distributed contained the statement complained of; (b) such statement bore a defamatory meaning; and (c) there was no defence against an action for defamation. 4. The Court rejected the appellant’s contention for the following reasons: 4.1. The rationale of the defence of innocent dissemination is to mitigate the harshness of the strict publication rule which does not require the first or main publisher to be aware of the defamatory nature of the material he is publishing. To require a subordinate publisher to prove an absence of knowledge that the publication contained a defamatory statement to which there was no defence would be to put the defence on a very different footing to its underlying rationale of mitigating the harshness of the strict publication rule. 4.2. The argument in favour of considering such knowledge for the defence is unsupported by case authority. 4.3. There are significant practical difficulties which call into question the soundness of the appellant’s contention. 4.4. Requiring proof of knowledge that the publication contained a defamatory statement to which there was no defence to exclude the defence would skew the balance between freedom of expression and reputational protection heavily in favour of the subordinate publisher. 4.5. In none of the common law jurisdictions considered in the case, where the defence of innocent dissemination has been put on a statutory basis, is such knowledge made an element of the defence. 5. Having rejected the appellant’s submission that proof of knowledge that the publication contained a defamatory statement to which there was no defence was required to defeat the defence of innocent dissemination (as opposed to knowledge either that the publication contained the statement complained of or that it contained a defamatory statement), and in light of the concurrent findings on the appellant’s negligence, it followed that the appeal must be dismissed. 6. In their concluding remarks, the Court reiterated that what is sufficient to establish the exercise of reasonable care is fact and context sensitive. In particular, the Court contrasted the position of an internet web host functioning in a “many-to-many” context where it might be reasonable to set the relevant negligence standard at a level that only exposes the distributor to liability when there has been a failure to respond appropriately after defamatory material is drawn to its attention. Whether the same standard of reasonable care should be applied to a distributor of a newspaper or magazine depended on the facts. However, this was not such a case. 7. The Court unanimously dismissed the appeal. 
1. The judgment deals with two money laundering cases that were heard together. 2. The first case concerns Mr. Yeung Ka Sing, Carson (“Yeung”) who was convicted in the District Court on five charges of money laundering, contravening section 25(1) of the Organized and Serious Crimes Ordinance (“OSCO”). The dismissal of Yeung’s appeal by the Court of Appeal led to two appeals before the Court. The key issues on appeal are: (1) whether the prosecution has to prove the predicate offence in a charge of dealing with property known or believed to represent proceeds of an indictable offence (“The proceeds issue”), (2) what is the mental element on a charge of money laundering (“The mental element issue”), (3) whether, and if so how, the rule against duplicity applies in the context of a money laundering charge (“The duplicity issue”), and (4) what is the correct formulation in considering whether a defendant had reasonable grounds to believe in the context of OSCO section 25(1) (“The Pang Hung Fai issue”). 3. The second case concerns Mr. Salim, Majed (“Salim”) who was convicted in the District Court on four charges of money laundering contravening OSCO section 25(1). His conviction was quashed in the Court of Appeal on a ground which is not material to the present appeal. However, the Court of Appeal declined to order a re-trial, holding that the charges were incurably duplicitous. The prosecution obtained leave to appeal on the duplicity issue identical to the one in Yeung’s case. The proceeds issue 4. On the basis of the language and structure of the Ordinance, an examination of the amendments made to the provisions creating the offence, the existence of a defence involving disclosure of suspicious transactions and a comparison with money laundering offences in other jurisdictions, the Court held that it is not necessary for the prosecution to prove, as an element of OSCO section 25(1), that the property dealt with by the defendant in fact represents the proceeds of an indictable offence. It is only necessary for the prosecution to prove that the accused dealt with certain property in circumstances where he or she knew or had reasonable grounds to believe that such property represented the proceeds of an indictable offence. The mental element issue and Pang Hung Fai issue 5. The Court provided clarification as to what constitutes “having reasonable grounds to believe” that property being dealt with represents any person’s proceeds of an indictable offence as prescribed by OSCO section 25(1). It explained its earlier decision in HKSAR v Pang Hung Fai (2014) and endorsed the approach to the “reasonable grounds to believe” mental element adopted by the Appeal Committee in 1999, holding that: “To convict, the jury had to find that the accused had grounds for believing; and there was the additional requirement that the grounds must be reasonable: That is, that anyone looking at those grounds objectively would so believe.” The duplicity issue 6. In Hong Kong, under the Indictment Rules 1976, each paragraph (called a “count”) in an indictment can only properly allege a single offence. This is commonly referred to as the rule against duplicity. The question of duplicity arises where the conduct alleged in a charge involves a number of acts each of which is capable of being treated as a separate offence. In the present case, each of the counts charged money laundering on the basis of numerous deposits into a bank account. The Court held that the purpose of concealing the property comprising those deposits, known or reasonably believed to represent the proceeds of crime, provided a connection which made the individual deposits acts of a similar nature so that they could fairly be regarded as forming part of the same transaction or criminal enterprise. A charge unifying those deposits was therefore justified and the rule against duplicity was not infringed. 7. The Court upheld the Court of Appeal’s finding in Yeung’s case that no prejudice was caused by grouping the 963 individual deposits into five charges. 8. At the trial, Salim’s defence, comprehensively rejected by the trial judge, was that each account was established for the purpose of a legitimate business which he was intending to conduct with Mainland China. His evidence about that was found to be completely implausible. There was no reason to think that his defence would have been any different, or more convincing, had he been charged with 46 offences, or with some different combination of offences, or that in any other respect the aggregation of charges caused any unfairness. The defence case at trial was unaffected by the number of individual acts of dealing which the prosecution alleged. Conclusion 9. Accordingly, Yeung’s appeal was dismissed, and HKSAR’s appeal in Salim’s case was allowed. 
1. The Appellant was on remand at Lai Chi Kok Reception Centre when he was involved in a fight with other inmates. In disciplinary proceedings under the Prison Rules, the Appellant pleaded guilty to fighting in prison and was punished with forfeiture of remission for 5 days, separate confinement for 21 days, and forfeiture of privileges for 21 days. After the Appellant was released, he was re-arrested and charged with assault occasioning actual bodily harm. 2. The Appellant pleaded not guilty to the assault charge and applied to stay the prosecution for abuse of process on the ground that the disciplinary proceedings were based on the same or substantially the same facts so that he had already been punished for the incident, and being tried again would give rise to double jeopardy. The Magistrate disagreed, ruling that the disciplinary hearing was different in nature from the criminal proceedings and had not been decided by a court of competent jurisdiction, even though both sets of proceedings arose from the same facts. The rule against double jeopardy therefore did not apply. On appeal, the Court of First Instance agreed with the Magistrate. 3. Before this Court the Appellant argued that the common law rule against double jeopardy applied to the disciplinary proceedings since the requirement that the initial proceedings be those of a court of competent jurisdiction had been abolished by an English Court of Appeal decision. Therefore, it would be an abuse of process to try him again. Secondly, he argued that Section 8, Article 11(6), of the Hong Kong Bill of Rights Ordinance (Cap. 383) (“BOR”) barred the subsequent prosecution since, by virtue of the disciplinary proceedings, the Appellant had been finally convicted of an offence properly classified as “criminal” according to the law and penal procedure of Hong Kong. 4. This Court rejected the first argument and confirmed that the discretion at common law to stay criminal proceedings as an abuse of process only arises where a defendant faces a second trial arising from the same or substantially the same set of facts as at an earlier trial before a court of competent jurisdiction. 5. The Acting Superintendent does not qualify as a court of competent jurisdiction. The prison disciplinary proceedings are significantly different from criminal proceedings, which apply to the public at large. Such disciplinary proceedings apply only to a limited class of persons and are only concerned with maintaining order and discipline within the prison. 6. This Court also rejected the second argument. The protection against double jeopardy provided by BOR 11(6) substantively blocks further proceedings and is different from procedural fair hearing guarantees provided by other provisions of BOR Art 11. The rules which have been developed for making the procedural fair hearing guarantees applicable by broadening the concept of “criminal” are not appropriate for activating protection against double jeopardy under BOR 11(6) because its substantive effect is quite different. The Court therefore held that BOR 11(6) is limited to cases where the initial proceedings are criminal proceedings strictly so called before a court exercising criminal jurisdiction. Therefore, BOR 11(6) was inapplicable to the prison disciplinary proceedings in the present case. Disposition 7. Accordingly, the Court unanimously dismissed the appeal. 
1. There are 17 residential buildings erected on Wang Fung Terrace. With the exception of a 16 storey building, all of the buildings are either 5 or 6 storeys in height. 2. The Appellant wished to replace two of these 5 storey buildings with two 39 storey buildings. 3. However, in 2001, the building plans for the purpose were rejected by the Building Authority on several bases, one of them being section 16(1)(g) of the Buildings Ordinance (Cap. 123). This section states, among other things, that the Building Authority may refuse to give his approval of any plans of building works where the carrying out of the building works would result in a building differing in height, design, type or intended use from buildings in the immediate neighborhood. 4. The rejection of the building plans led to a series of appeals and judicial reviews, which culminated in the present appeal. The issue before the Court was whether the Building Authority, in exercising its discretion under section 16(1)(g) of the Buildings Ordinance, may consider matters of health and safety, or matters of town planning. 5. These matters included the Building Authority’s concern that the proposed buildings would cause danger and/or inconvenience to traffic. As more people would occupy Wang Hung Terrace, there would be increased traffic at a nearby junction. 6. The Court held – disagreeing with the Appellant – that: (1) Such traffic concerns may be considered by the Building Authority under section 16(1)(g) of the Buildings Ordinance; and (2) More generally, matters of health and safety and matters of town planning may be considered by the Building Authority under section 16(1)(g), provided there is a causal connection between such matters and the difference on the basis of which section 16(1)(g) is invoked (e.g. a difference in height). There is no hard and fast rule as to what amounts to a causal connection. 
1. The Appellant was a supervised front desk employee at a guesthouse on Nathan Road (the “Guesthouse”) with responsibility for checking guests in and out and some associated duties. An officer of the Licensing Authority posed as a lodger to rent a room at the Guesthouse. The Appellant processed the check-in at the reception desk. The Guesthouse did not possess a certificate of exemption or a licence as required under section 5(2) of the Hotel and Guesthouse Accommodation Ordinance, Cap 349 (the “Ordinance”). 2. The Appellant was convicted by a magistrate of managing a guesthouse without a licence, contrary to section 5(1) of the Ordinance. The Appellant’s appeal against his conviction to the Court of First Instance was dismissed. The judge ordered him to pay the prosecution’s costs of the appeal (the “Costs Order”). The Appellant was granted leave to appeal to this Court against both his conviction and the Costs Order. 3. On the appeal against conviction, the question was whether on a proper construction of section 5(1) of the Ordinance, the Appellant could be regarded as someone who was managing the Guesthouse 4. The Court held that the Appellant’s acts did not constitute managing the Guesthouse within the meaning of section 5(1) for the following reasons: 5. First, the word “manage” in its ordinary meaning refers to the act of conducting or carrying on (a business, an undertaking, an operation etc.). It also means to direct the affairs of (a household, institution, state etc.). 6. Second, having regard to other provisions in the Ordinance giving the section its context, the prohibition under section 5(1) of the Ordinance extends only to management by persons who could and should have applied for a licence, and to persons delegated by them to manage the premises. Persons who merely do acts in connection with the management of a hotel or guesthouse do not, on that basis alone, manage the hotel or guesthouse. 7. Third, considering that the purpose of the Ordinance is to regulate hotels and guesthouses through a licensing regime and to ensure their compliance with fire and safety standards, the term “manage” should not be read so broadly as to pick up conduct of a purely functional character which does not show managerial authority. To criminalise such conduct seems at best marginally relevant to the statutory purpose. 8. In the light of the above, the Court held that the concept of “manage” under section 5(1) of the Ordinance does not extend to a person who carries out non-discretionary functions under the direct supervision of another on the premises. A person manages a hotel or a guesthouse only if he or she has assumed, or has conferred upon them, an authority to carry out the business or undertaking of the hotel or guesthouse. They are the people who can answer “yes” to the question “are you in charge here?” In the present case, the Appellant was not shown to have the authority necessary to characterise him as one who was managing the Guesthouse and therefore the offence was not made out. Judgment on costs: 9. Since the main appeal is allowed, the Costs Order would in any event be set aside. Moreover, the prosecution conceded that the award had wrongly been made. Nevertheless, the Court went on to consider the principles to be applied in making costs orders in favour of the prosecution in magistracy appeals. 10. Costs should not be awarded in favour of the prosecution automatically whenever an appeal against conviction in the Magistrates’ Court fails. Convicted persons enjoy a statutory right of appeal and in order to give full effect to this right, costs orders in favour of the prosecution should only be made if the appeal was not reasonably arguable. 11. Additionally, in making costs orders in favour of the prosecution, the court must apply the principles laid down in section 15 of the Costs in Criminal Cases Ordinance, Cap 492. Any sum awarded must not be punitive but only compensatory of properly incurred expenses. The award must also be just and reasonable and one that the unsuccessful appellant is able to pay. However, there is no independent rule requiring the costs ordered not to be grossly disproportionate to a fine imposed. 12. Generally, the prosecution has to apply for costs and the court must give the appellant a proper opportunity to be heard as to whether the order should be made. 13. In the present case, the Costs Order was made without any prior notice to the Appellant. It had not been sought by the prosecution and the Appellant was not given any opportunity to be heard as to whether it should be made nor as to whether he can satisfy the award. As such, the Costs Order was made in breach of natural justice and was not made in accordance with the statutory principles. CONCLUSION: 14. The main appeal and the appeal on costs were both unanimously allowed. The conviction of the Appellant and the Costs Order were set aside. 15. Further, the Court ordered that the Respondent pay the Appellant’s costs of the main appeal and the appeal on costs before this Court and below. 
1. The Court heard arguments on the appropriateness and constitutionality of the charges. 2. The Court found that the use of the common law offence of public nuisance instead of appropriate statutory offences in the present case does not violate the convention that the Prosecution should behave with restraint. Whether the use of the common law offence of public nuisance would result in a heavier penalty in the event of a conviction depends on the culpability that the Prosecution is able to prove. 3. For the reasons given in the judgment, the Court found that the offence of conspiracy to cause a public nuisance does not have the undesirable effect of curtailing or suppressing civil disobedience at its formation stage or supressing human rights as the defendants contended. 4. The Court found that if the agreement under complaint is one to occupy public roads by way of peaceful demonstration which would result in obstruction, if the Prosecution fails to prove the element of “not warranted by law”, the offence of conspiracy to cause a public nuisance cannot be made out. If the Prosecution is able to prove that if the agreement under complaint is carried out accordance with the intentions of the defendants, the demonstration in question would result in obstruction which is unreasonable according to the reasonableness test in HKSAR v Yeung May Wan, and hence not warranted by law, the parties to the agreement cannot complain if a charge of conspiracy to cause public nuisance is brought against them. 5. The Court found that on a charge of conspiracy to cause public nuisance, the court in determining whether the obstruction is unreasonable, is required to have the protection given to peaceful demonstration given by the Basic Law in the forefront of its consideration. The Court held that a charge of conspiracy to cause public nuisance would not generate a chilling effect in society and silence many legitimate speeches as the defendants contend. 6. The Court found that the constitutional challenge against Charge 1 failed for the reasons given in the judgment. 7. On Charge 1, the Prosecution alleged that D1 to D3, between about March 2013 and 2nd December 2014, in Hong Kong, conspired together and with other persons to cause a nuisance to the public through the unlawful obstruction of public places and roads in or in the neighbourhood of Central. 8. Charge 1 concerned a campaign known as “Occupy Central with Love and Peace” or “Let love and Peace Occupy Central” launched by D1 to D3 in or about March 2013 (the “OCLP”). Through the OCLP, D1 to D3 strived for their advocated form of universal suffrage in the election of the Chief Executive of the Hong Kong Special Administrative Region. D1 to D3 announced the commencement of the OCLP in a press conference on 27th March 2013. 9. The OCLP was a 4 stages campaign according to D1 to D3: signing of the covenant; the deliberation day; citizen authorization process, and finally, the act of civil disobedience. 10. The Prosecution alleged that the conspiracy under complaint was a conspiracy to obstruct unlawfully public places and roads in or in the neighbourhood of Central. The occupation of the public thoroughfares that D1 to D3 agreed to carry out would amount to a common injury to the public or a significant section of the public, hence what was agreed was a conspiracy to commit public nuisance. 11. The Prosecution alleged that the conspiracy was formed in March 2013 and ended on 2nd December 2014 when D1 to D3 announced their intention to surrender to the police on the following day. 12. The Court ruled admissible the survey results of the public surveys conducted by DW6 Professor Lee Lap Fung Francis. For the reasons given in the judgment, the Court attached no weight to the survey results. 13. D2 gave evidence that the OCLP initiated by D1 to D3 and what happened in late September 2014 and thereafter until 2nd December 2014 was a movement of civil disobedience. For the reasons given at paragraphs 262-270, for most part of the time during the conspiracy, D1 to D3 had been using a wrong yardstick to measure the proportionality of the disruption. 14. The Court noted that whilst the concept of civil disobedience is recognized in Hong Kong, civil disobedience is not a defence to a criminal charge. 15. The Court found that what had been agreed upon by D1 to D3 in March 2013 was an agreement to pursue a plan, i.e. the OCLP, which might develop into a conspiracy to commit public nuisance. However, what had been agreed by D1 to D3 in March 2013 by D1 to D3 did not yet amount to a conspiracy to commit a public nuisance. 16. On 31st August 2014, the Standing Committee if the National People’s Congress promulgated its decision on issues relating to the election of the Chief Executive of the HKSAR by universal suffrage in 2017 (“the Decision on 31st August). 17. Following the Decision on 31st August, protests were held against the decisions. 18. Follow the Decision on 31st August, D1 to D3 decided to launch the civil disobedience part of the OCLP. They decided to launch the Occupy Central Movement on 1st October 2014 at Chater Road. A Notification of Intention to Hold a Public Meeting at Chater Road was served on the Police. 19. D1 to D3 agreed that after the notified meeting was over, they would start the civil disobedience part of the OCLP by the occupation of the pedestrian precincts of Chater Road. They also agreed that in the event a Letter of Prohibition was issued against the proposed meeting on 1st October 2014, the OCLP would go ahead at the planned location, the participants would sit and remain there after the public holidays and commence civil disobedience there. 20. The notified public meeting at Chater Road did not take place because of what took place in late September 2014. 21. On 22nd September 2014, the Hong Kong Federation of Students and Scholarism launched class boycotts against the Decision on 31st August. 22. Starting on 26th September 2014, public meetings were held at Tim Mei Avenue against the Decision on 31st August. 23. During a notified public meeting held at Tim Mei Avenue on 26th September 2014, certain students at the public meeting charged into the East Wing Forecourt of Central Government Offices (“CGO”) to “reclaim” the said forecourt. Some student leaders were arrested. Some protestors who had entered Civic Square occupied the flagstaff platform therein and refused to leave. 24. It was against the above background that D1 to D3 appeared at the venue at Tim Mei Avenue in the afternoon of 27th September 2014. D1 addressed the crowd in the presence of D2 at Tim Mei Avenue and said amongst other things:- “..Let’s over-cram Admiralty first. Where shall (we) over-cram next? Central! We must be able to see the arrival of genuine universal suffrage in Hong Kong!” 25. At around 1:36 a.m. on 28th September 2014, D1 to D3 announced the launch of the Occupy Central movement. D1 said the Occupy Central movement would begin with occupying the CGO. 26. The Court found that as D1 to D3 implemented the OCLP, the agreement they reached in March 2013 became a conspiracy to commit public nuisance in September 2014 when they decided to launch the Occupy Central Movement on 1st October 2014 at Chater Road. 27. The Court found that by announcing the launch of the Occupy Central movement on 28th September 2014, D1 to D3 only modified the original plan to launch the Occupy Central movement at Chater Road on 1st October 2014. The agreement remained a conspiracy to cause a public nuisance to the public through the unlawful obstruction of public places and roads in or in the neighbourhood of Central. 28. The Court found that the obstruction that would be caused to Chater Road according to the original plan and the obstruction caused to the roads as a result of the launch of the Occupy Central movement on 28th September 2014 unreasonable and hence unwarranted by the law. 29. The Court found that D1 to D3 remained parties to the conspiracy until 2nd December 2014 when they manifested their intention to surrender to the Police on the following day. 30. The Court found all the elements of the offence of conspiracy to cause public nuisance proved against D1 to D3 beyond reasonable doubt. 31. Charge 2 and Charge 3 concerned the words said by D1 to D7 at Tim Mei Avenue on 27th and 28th September 2014. The words said by D1 to D7 which were made the subject matters of complaint for Charge 2 and Charge 3 had been captured on videos and produced as evidence. 32. The Prosecution alleged that D1 to D7, by the words they used when they spoke on the main stage:- (i) D1 to D7 had unlawfully incited the persons at Tim Mei Avenue to cause a public nuisance to the public by unlawfully obstructing public places and roads at and in the neighbourhood of Tim Mei Avenue (Charge 2); (ii) D1 to D7 had unlawfully incited the persons present at Tim Mei Avenue to incite other persons to cause a public nuisance to the public by unlawfully obstructing public places and roads at and in the neighbourhood of Tim Mei Avenue (Charge 3). 33. The Court heard submissions on the issue of the constitutionality and proportionality of the offences of incitement to commit public nuisance and incitement to incite public nuisance. 34. For the reasons given at paragraphs 301-307 of the judgment, the Court found that there is nothing uncertain about the elements of the offences. Both offences satisfy the “prescribed by law” requirement. The Court also found that the respective mental requirements for both offences do not depend on the circumstances of any subsequent obstruction actually caused by the incitee(s) and therefore, the offences do not offend the principle against retroactivity. The Court also found that the two offences do not give rise to any chilling effect on the exercise of the fundamental rights to freedom of speech and freedom of peaceful assembly. 35. For the reasons given at paragraphs 310-317 of the judgment, the Court found that the offences of incitement to commit public nuisance and incitement to incite public nuisance satisfy the proportionality requirement for the restriction of the fundamental rights to freedom of speech and freedom of peaceful assembly. The Court found that the reasonableness test laid down by the Court of Final Appeal in Yeung May Wan has subsumed into it the consideration if proportionality. 36. The Court found that, given the fact that Tim May Avenue had been cordoned off by the Police since the afternoon of 26th September 2014, the defendants who on 27th and 28th September 2014, incited the people at Tim Mei Avenue (i) to occupy, and hence obstruct the carriageway of Tim Mei Avenue; and/or (ii) to incite other persons to do the same should be given the benefit of doubt as to whether the relevant defendant(s) knew or believed that the incitement(s) under complaint would result in a public nuisance, i.e. unreasonable obstruction of the carriageways of Tim Mei Avenue that would result amount to a suffering of common injury by members of the public. 37. However, the Court found that there were incitements made by D1, D2 and D4 to D7 on 27th and 28th September 2014, either on an individual basis or on the basis of joint enterprise, to the persons present at Tim Mei Avenue to cause obstruction to the public places and roads in the neighbourhood of Tim Mei Avenue. 38. The Court found that there were incitements made by D4 to D7 on 27th and 28th September 2014, either on an individual basis or on the basis of joint enterprise, to the persons present at Tim Mei Avenue to incite other persons to cause obstruction to the public places and roads in the neighbourhood of Tim Mei Avenue. 39. For the reasons given in the judgment, the Court found that all the elements required to prove the offence of “Incitement to commit public nuisance” (Charge 2) were proved against D1, D2, D4, D5, D6 and D7 beyond reasonable doubt. The Court found that the evidence was insufficient to prove Charge 2 against D3. 40. For the reasons given in the judgment, the Court found that all the elements required to prove the offence of “Incitement to incite public nuisance” (Charge 3) were proved against D4, D5, D6 and D7 beyond reasonable doubt. The Court found that the evidence was insufficient to prove Charge 3 against D1, D2 and D3. 41. Charge 4 “Incitement to commit public nuisance” and Charge 5 “Incitement to incite public nuisance” concerned what D8 said to the people present at Fenwick Pier Street on 28th September 2014. 42. The Prosecution alleged that by the words used, D8 incited the people present at Fenwick Pier Street to cause a public nuisance by urging those who were already on the carriageway of Fenwick Pier Street to stay on the road and urging other people standing on the nearby pavements to go and sit on the carriageway of Fenwick Pier Street (Charge 4). 43. The Prosecution alleged that by the words used, D8 incited the people present at Fenwick Pier Street to call up more people to come and obstruct the relevant section of Fenwick Pier Street (Charge 5). 44. What D8 said to the people present at Fenwick Pier Street was recorded on videos by the Police and produced as evidence. 45. The Prosecution called Mr Tong Wai Tung (PW5), Assistant Divisional Officer of Fire Services Department to show how the obstruction of Fenwick Pier Street on 28th September 2014 had blocked a fire engine at Kong Wan Fire Station from using Fenwick Pier Street to attend to a reported case of “Multiple Casualties Incident” at Admiralty Centre. 46. For the reasons given in the judgment, the Court found all the elements required to prove the offences of “Incitement to commit public nuisance” (Charge 4) and “Incitement to incite public nuisance” (Charge 5) were proved against D8 beyond reasonable doubt. 47. Charge 6“Incitement to commit public nuisance” concerned what D9 said to the people present at Harcourt Road on 28th September 2014. 48. The Prosecution alleged that D9, by what he said to the people present on both sides of Harcourt Road, incited the people present to occupy all the carriageways of Harcourt Road and hold a public meeting on the carriageways. 49. What D9 said in the afternoon of 28th September 2014 was recorded on videos and produced as evidence. 50. For the reasons given in the judgment, the Court found all the elements required to prove the offences of “Incitement to commit public nuisance” (Charge 6) were proved against D9 beyond reasonable doubt. 
Background 1. On 13 June 2014, while the Finance Committee of the Legislative Council was scrutinizing a funding application relating to advanced works at the North East New Territories New Development areas, the Appellant took part in a demonstration outside the LegCo Complex. The protesters attempted to enter the LegCo Complex by removing the Mills barriers outside. The then President of LegCo requested the assistance of the police and invited them to enter into the precincts of LegCo Chamber. He claimed that he made the request in his capacity as the Chairman of the Legislative Council Commission (“LCC”). Conflicts broke out between the police officers and the protesters. The Appellant and others were arrested. 2. After trial, the Appellant was convicted of two charges, namely: (1) taking part in an unlawful assembly, contrary to section 18 of the Public Order Ordinance (Cap. 245) and (2) obstructing an officer of LegCo in the execution of his duty, contrary to section 19(b) of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382) (“LC(PP)O”). On appeal, the Appellant’s convictions were upheld by the Court of First Instance. 3. Subsequently, the Court of Final Appeal granted leave to appeal in respect of his conviction on charge (2). Thus, this appeal is solely concerned with charge (2). Grounds of Appeal 4. The Appellant advanced two grounds to challenge his conviction. First, he contended that without a prior invitation to enter made by the President, the police officer obstructed by the Appellant did not, as a matter of law, qualify as an officer of the Council, and therefore charge (2) was not made out. 5. The Appellant’s second ground was that since there was no written authority in place (such as a LegCo Rule of Procedure, a Council Resolution or an administrative instruction issued by the President) to restrict the public right of access to the LegCo, even if the police officer in question was an officer of the Council, he was not acting in the execution of his duty in denying the protesters entry through the entrances to LegCo. The Court’s decision 6. The Court rejected both of the Appellant’s grounds and provided guidance on the circumstances in which the police may lawfully enter and perform policing duties in the precincts of the LegCo Chamber. 7. First, having surveyed the relevant provisions of LC(PP)O and Administrative Instructions for Regulating Admittance and Conduct of Persons, the Court held that a prior invitation by the President of LegCo is not needed for a police officer to be on duty within the precincts of the LegCo Chamber and to qualify as an officer of the Council for the purposes of charge (2). 8. Further, the Court observed that even if a prior invitation to enter is necessary, in the present case such an invitation had been issued by the President of LegCo. It did not matter that he considered himself to be acting as the Chairman of the LCC when requesting police assistance, since objectively and as a matter of law, he was also President of LegCo. 9. Lastly, the Court observed that, pursuant to the Administrative Instructions, the protesters were lawfully refused entry into the precincts of the LegCo Chamber by the security officers. The Court held that the police officers were acting lawfully in the execution of their duty (as police officers and officers of the Council) in helping to enforce such refusal of entry. 10. Accordingly, the Court dismissed the appeal. 
1. The appellants’ appeals against their convictions – on the basis that their trial counsel (Mr Davies) had given them flagrantly incompetent advice – were dismissed. 2. Mr Chen Chu-nan (“the deceased”) was arrested on 12 August 2009, and was remanded in custody at Lai Chi Kok Reception Centre. On 16 August 2009, he was found unconscious, and was subsequently certified as dead. 3. The appellants were Correctional Services Department Officers. They were convicted for inflicting grievous bodily harm on the deceased, at about 1100 hours on 15 August 2009 in the Consultation Room of Lai Chi Kok Reception Centre, whilst the deceased was in the custody of the appellants who were the only other persons in the room. 4. At trial, trial counsel advised the appellants that he believed it would be better if they did not testify. The appellants did not testify. 5. Before the Court of Final Appeal, counsel for the appellants (Mr Grossman SC) submitted that trial counsel was flagrantly incompetent in failing to advise the appellants in strong terms that they or some of them must testify. This was because, unless they or one of them did so, conviction was inevitable. 6. The Court held that it could not reasonably be said that trial counsel was incompetent, and that it followed that no question of flagrant incompetence could have arisen. 7. The appellants’ evidence would not have helped. They were convicted because some of the injuries could only have been caused by excessive force. They had no explanation for this. Their witness statements showed that their evidence was simply that none of them had used excessive force during the approximately 9 minutes they were in the Consultation Room with the deceased. 8. Moreover, on the evidence, even if the appellants did not testify, conviction was not inevitable. While the chance of an acquittal was a slender one, it was nonetheless a real chance. 9. Given the reasons above, it was unnecessary for the Court to consider Mr Grossman SC’s submission that trial counsel had misunderstood the law of joint enterprise. 
1. This appeal arises from an action by the Appellant (“Tugu”) seeking recovery of monies paid out from its bank account (the “Account”) at the Respondent bank (the “Bank”) on the dishonest instructions of Tugu’s authorised signatories (the “Signatories”). 2. The mandate of the Account provided that any two of the Signatories could give instructions in relation to the Account. Between 1994 and 1998, through 26 transfers, a total of US$51.64 million was paid out from the Account to the Signatories and another officer of Tugu. At the final transfer, the Bank was instructed to transfer the balance and close the Account, which the Bank did. In 2006, Tugu informed the Bank that the transfers were dishonestly authorised, and demanded payment of their aggregate amount. In 2007, Tugu commenced proceedings in furtherance of that demand. 3. The Judge dismissed Tugu’s claim. The Judge held that the Bank had breached its duties by failing to make inquiries about the transfers when a pattern had emerged by the time of the third transfer indicating impropriety in the operation of the Account. Nonetheless, the Judge held that the six-year limitation period under the Limitation Ordinance (Cap. 347), within which the claim had to be brought, had started running upon the closure of the Account in 1998, which the Judge held was duly authorised by Tugu. On this view, the claim had become statute-barred when the action was commenced in 2007. 4. The Court of Appeal upheld the decision of the Judge on slightly different grounds. Materially, it held that the closure of the Account was unauthorised and a repudiation of the banking contract but that it was nevertheless effective in bringing the banker-customer relationship to an end. On this view, the six-year limitation period also began to run upon the closure of the Account in 1998 and therefore the claim was statute-barred. 5. In both courts below, the Bank also argued that Tugu was contributorily negligent, although this issue did not arise as Tugu’s claim was held to be statute-barred. Nonetheless, both the Judge and Court of Appeal assessed Tugu’s contributory fault at 50%. 6. Tugu was granted leave by the Court of Appeal to appeal to this Court on both issues of statutory limitation and contributory negligence. Limitation 7. This Court held that Tugu’s claim was not statute-barred. Tugu’s claim was essentially one for the payment of a debt owed by the Bank, and it was well settled that, in the banking context, the six-year limitation period only began to run upon the customer’s demand for payment of the debt, in this case in 2006. 8. This Court rejected the Bank’s argument that this case was different because the banker-customer relationship had come to an end when the Account was closed in 1998. For the following two reasons this Court considered that the banker-customer relationship between Tugu and the Bank had continued to subsist. 9. First, this Court agreed with the Court of Appeal that the closure of the Account was unauthorised, which showed an intention on the part of the Bank to no longer be bound by its banking contract with Tugu. However, without Tugu’s acceptance this was insufficient to bring the contract to an end. Further, there was nothing in this case which called for the application of the principle that in exceptional cases a contract could be brought to an end by one party unilaterally. 10. Secondly, this Court held that whether the Account had been closed with Tugu’s authority or not, there was no principle of law which entitled the Bank to unilaterally write off a debt without paying it. The dishonest transfers were nullities, the aggregate amount of which constituted the debt that was payable by the Bank on Tugu’s demand. Since the Bank had never discharged this debt, it followed that the banker-customer relationship had not been effectually terminated. Applicability of contributory negligence 11. On the question of contributory negligence, this Court held that this defence was not available to the Bank, since Tugu’s claim was one in debt which did not fall within the scope of section 21 of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23). Disposition 12. Accordingly, this Court unanimously allowed the appeal and ordered that judgment be entered for the aggregate amount of the unauthorised transfers except for the first two. 
1. In November 2005, the Appellant was granted a one-way permit by the Mainland authorities for settlement in Hong Kong with her husband. Her husband died the day after she arrived in Hong Kong. In March 2006, she applied for Comprehensive Social Security Assistance (“CSSA”). Her application was rejected by the Director of Social Welfare (the “Director”) due to the requirement, since 1 January 2004, that all applicants for CSSA must have been residents of Hong Kong for at least seven years. Prior to 2004, the residential condition of eligibility for CSSA was one year’s residence. The Director also refused to exercise his discretion to waive the residence requirement in the Appellant’s case. The Appellant’s appeal to the Social Security Appeal Board against the Director’s refusal to grant her CSSA was dismissed. 2. The Appellant sought judicial review to challenge the constitutionality of the seven-year residence requirement under the CSSA Scheme. Both the Court of First Instance and the Court of Appeal upheld its constitutionality. The Appellant appealed to the Court of Final Appeal. 3. The Court unanimously allowed the Appellant’s appeal. The seven-year residence requirement was declared to be unconstitutional. Article 36 of the Basic Law conferred a right to the social welfare benefits under the CSSA Scheme as it stood on 1 July 1997 (with a qualifying condition of one year’s residence) subject to the Government’s power to modify those benefits pursuant to policies made in accordance with Article 145. However, any subsequent restriction on such rights is subject to constitutional review by the Courts adopting a proportionality analysis. The restriction on the right has to be rationally connected to the pursuit of a legitimate aim, and the inroads into the right cannot be manifestly without reasonable foundation. 4. The Government claimed to have introduced the seven-year residence requirement with the legitimate aim of saving money so as to ensure the long-term sustainability of the social security system. The Court held that this claim was not made out. The seven-year residence requirement conflicted with two important social policies, namely (i) the one-way permit family union policy and (ii) the population policy aimed at rejuvenating the ageing population. Furthermore, the evidence suggested that an insignificant level of savings was achieved by its introduction, leading to the conclusion that the seven-year residence requirement was not rationally connected to the declared aim of ensuring the sustainability of the social security system, or was a measure which was manifestly without reasonable foundation. 
3. The appellants are a New York hedge fund and three of its officers (“Tiger Asia”). The respondent (“SFC”) alleged that Tiger Asia entered into transactions which contravened the prohibition on insider dealing in s291(5) of the Securities and Futures Ordinance (“SFO”). It applied to the Court of First Instance (“CFI”) for various forms of relief against Tiger Asia pursuant to s213 of the SFO. Tiger Asia claimed that the CFI has no jurisdiction to decide whether it has contravened prohibition on insider dealing, which is a necessary condition for making any order under s213 of the SFO. The CFI accepted this argument but was overturned by the Court of Appeal. 4. The Court upheld the Court of Appeal’s decision and dismissed the appeal. The Court held that while there are two procedures under the SFO to deal with market misconducts, namely criminal procedure and civil procedure via the market misconduct tribunal (“MMT”), they are not jointly exhaustive of the procedures of determining whether there is contravention of prohibited acts. The jurisdiction of the CFI to decide whether there is contravention does not depend on findings by a criminal court or the MMT. 5. The Court further held that remedies provided under s213 of the SFO serve a different purpose from those of a criminal court or the MMT. It provides remedies for damage suffered by parties involved in the impugned transactions. In such proceedings the SFC acts as protector of the collective interest of persons dealing in the market who have been injured by market misconduct. These are civil proceedings and do not attract the protection accorded to criminal defendants. Under s213 of the SFO, the CFI has the power to declare that defendants have contravened certain prohibitions which also happen to be criminal offences, but conviction of the relevant offences remains a matter for the criminal court. 
1. The Petitioner (now deceased) and the 1st Respondent were brothers and shareholders of Yung Kee Holdings Limited (the “Company”). The Company was incorporated in the British Virgin Islands in 1994 but not registered in Hong Kong. The Company is the ultimate holding company of a group of companies operating a core restaurant business represented by the Yung Kee Restaurant. 2. The Petitioner presented a petition against the Respondents and alleged that the affairs of the Company were carried out in a manner which was unfairly prejudicial towards him. He sought an order under section 168A of the former Companies Ordinance for the 1st Respondent to buy his shares in the Company, and alternatively, an order that the Company be wound up on the just and equitable ground under section 327(3)(c) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32). 3. The trial judge dismissed the petition and held that the Company did not establish a place of business for the purposes of section 168A or have sufficient connection with Hong Kong for the purposes of section 327(3)(c). The trial judge nevertheless held that the affairs of the Company were carried out in a manner that is unfairly prejudicial to the Petitioner’s interests. The Court of Appeal dismissed the Petitioner’s appeal, but reversed the trial judge’s finding on unfair prejudice. The Petitioner appealed to the Court. 4. The Court held that the courts of Hong Kong have no jurisdiction to make an order under section 168A in this case. There was no evidence that the Company had or needed an office in the Yung Kee Building or kept its books and records there. The Company did not keep a share transfer or share registration office in Hong Kong. It held no board or general meetings prior to April 2009, and since then there were only 8 written resolutions of the Company or its directors, which were all concerned with internal matters. Therefore, the Court found that the Company had not established a place of business in Hong Kong. 5. However, the Court found that there was sufficient connection between the Company and Hong Kong for the purposes of section 327(3)(c). The Court held that the requisite connection can be established through the Company’s shareholders and subsidiaries. In this case, the shareholders and directors of the Company and its subsidiaries are resident in Hong Kong. The Company’s underlying assets and the business carried on by its sub-subsidiaries are all located in Hong Kong. The income of the Company is derived from the business in Hong Kong. The Company’s administrative decisions as well as the relevant events giving rise to the dispute all took place in Hong Kong. In the light of these compelling factors, the Court held that the requirement of a sufficient connection with Hong Kong is satisfied. 6. The Court proceeded to consider the petition on its merits. The Court agreed with the trial judge that there was a mutual understanding that each brother was entitled to participate in the business and had to be properly consulted. The intention of the late Kam Shui Fai, who founded the business and controlled the Company when he was alive, was for his two sons to run the business together. This mutual understanding had been breached by the 1st Respondent, who excluded the Petitioner from being properly consulted in the business. The Court concluded that it is just and equitable to wind up the Company. 7. Accordingly, the Court allowed the appeal unanimously and made an order winding up the Company. The Court ordered that the winding up order be stayed for 28 days to give the parties an opportunity to agree the terms on which the Petitioner’s shares in the Company might be purchased in the event that agreement could be reached. If no such agreement is concluded, the winding up order will take effect automatically. 
1. This appeal concerns the proper construction of the expression “accompanied personal baggage” in the Import and Export (General) Regulations (Cap. 60A) (the “Regulations”). 2. The Appellant and his wife were travelling from Hong Kong to the Mainland via Lo Wu. He was carrying 4 cans of powdered formula in his backpack – 2 for himself and 2 for his wife. He had been walking side by side with his wife. However, when they reached the customs channel, they got separated as there was a large flow of people. 3. Customs officers intercepted the Appellant in the departure hall of Lo Wu Control Point. He was found to be carrying 4 cans containing a total of 3.6 kg of powdered formula. 4. He was convicted of the attempted exportation of 3.6 kg of powdered formula under s. 6D(1) of the Import and Export Ordinance (Cap. 60) (the “Ordinance”) and s. 159G of the Crimes Ordinance (Cap. 200). 5. Regulation 6(1D) of the Regulations exempts, from s.6D(1) of the Ordinance, powdered formula that is exported in the accompanied personal baggage of a person aged 16 or above leaving Hong Kong, if (i) the person did not leave Hong Kong in the last 24 hours, and (ii) the formula does not exceed 1.8 kg[1] in total net weight. 6. This Court held that “accompanied personal baggage” is an everyday expression. Whether or not an item is an accompanied personal baggage is a question of fact in every case, and should be approached with common sense. 7. Without attempting an exhaustive definition, this Court held that 2 of the 4 cans of powdered formula should be regarded as part of the wife’s accompanied personal baggage, just as if she shared a suitcase with her husband and her clothes were in his suitcase. They were travelling on the same journey with the wife and belonged to her, and should be regarded as falling within the exemption in the Regulations. 8. Therefore, this Court allowed the appeal. [1] Powdered formula usually comes in cans of 0.9 kg each, so effectively, the limit is 2 cans of powdered formula. 
1. The Appellant’s liquidators brought an action against the Respondent, a former director of the Appellant, for breach of her duties as a director. It was alleged that (a) the Appellant was insolvent at various stages from about 2001, (b) the Respondent had the necessary knowledge or means of knowledge to be aware of fraudulent accounting practices concealing this state of affairs, (c) she should have “blown the whistle” by alerting the Appellant’s board of directors, the Stock Exchange and the shareholders and had she done so, the fraudulent accounting practices would have ended well before the appointment of the provisional liquidators in June 2005 and (d) the failure of the Respondent was a direct cause of categories of loss suffered by the Appellant, that is, the “the Dividends Loss”, “the Convertible Notes Loss”, “the Share Repurchases Loss” and “the IND Loss”. 2. This appeal before the Court involves four questions which have appeared at interlocutory stages in the above mentioned litigation. 3. The first question was whether the expiry of an applicable limitation period is to be assessed (i) by looking to the terms of indorsement on a writ filed within time, or (ii) exclusively by looking to the terms of the then current statement of claim, or (iii) by looking to both. 4. The Court held that option (i) above is the correct approach. Accordingly, since the Convertible Notes Loss claim, the Share Repurchases Loss claim and the IND Loss claim are within the purview of the indorsement, they were not statute barred when introduced into the pleadings. This conclusion also renders it unnecessary to answer questions two and three. These concern the interpretation of the Limitation Ordinance (Cap.347). 5. Question four relates to whether a company has any remedy against a director acting in breach of fiduciary duty for sums paid away to one creditor at the expense of other creditors at a time when the company is insolvent. This question is designed to challenge the lower courts’ decision to strike out the Convertible Notes Loss claim on the ground that the payments for early redemption of the convertible notes discharged genuine liabilities and could not give rise to any loss to the Appellant. 6. The Court accepted the submissions by the Appellant that the question whether a company may pursue equitable remedies against a director who knowingly causes a company to pay away company assets to a creditor when the director does not subjectively believe that the payment is in the best interests of the company may present a triable issue. However, the Court is of the opinion that as presently pleaded the Convertible Notes Loss claim made against the Respondent does not present such an issue for trial. 7. In the result, the Court leaves it for the Appellant, if so advised, and in the light of the reasons of the Court, to seek leave to replead, subject to the discretion of the court dealing with the application for such leave. 
1. The Appellant owned a piece of land in the New Territories on which he built a 3-storey village house (the “House”) in 1985. A canopy was erected on top of the House in 1986 (the “Canopy”). 2. In 2011, after an inspection of the Canopy, the Buildings Authority issued an order under section 24(1) of the Buildings Ordinance (Cap. 123) (“BO”) (the “Order”) requiring the Appellant to remove the Canopy as “unauthorised building works” and to reinstate the parts of the House affected by the Canopy within 30 days. The Appellant did not comply with the Order and was charged with the offence of failing, without reasonable excuse, to comply with the Order contrary to section 40(1BA) of the BO. 3. The Magistrate convicted the Appellant. The Appellant appealed against the conviction on the basis that the Canopy constituted building works connected with the House under Regulation 3(1)(b) of the now repealed Buildings Ordinance (Application to the New Territories) Regulations, (Cap. 322) (the “Regulations”) and thus, the Canopy was exempt from the application of the BO. 4. Before the Court of First Instance, the Judge held that the erection of the Canopy was not “building works connected with the building” within Regulation 3(1)(b) and so dismissed the appeal. On appeal to the Court of Final Appeal, this basis for the Judge’s upholding of the Appellant’s conviction was challenged by the Appellant and it was accepted by the Respondent that it was wrong. 5. However, the Respondent argued that the appeal to the Court of Final Appeal should nevertheless be dismissed on the basis that, because of the height of the building, the exemption under the Regulations did not apply in any event. This entailed the Court determining the proper construction of the definition of “height” in Regulation 2, which stipulated that “height” was to be measured “to the level of the main roof” in the case of a building with a flat roof. 6. The Respondent contended that the height of the House was to be measured to the top of the Canopy, while the Appellant contended that the Canopy’s roof was not the main roof so the height of the Canopy should be ignored. On the Appellant’s argument, the House was within the height limit in Regulation 3(2)(b) and thus exempt from the provisions of the BO. 7. Construing the expression “main roof” in the light of its context and purpose, the Court held that the definition of “height” in Regulation 2 required the House to be measured to the highest flat roof of the building providing substantial shelter to its occupants. However, each case will depend on its particular facts and this construction will generally exclude a minor additional flat roof. 8. The Court concluded that the flat roof of the Canopy was a permanent structure providing substantial shelter, and therefore, Regulation 2 required the House to be measured to the top of the flat roof of the Canopy. So measured, it exceeded the maximum height to qualify for exemption from the provisions of the BO under Regulation 3(1). 9. The Appellant was therefore properly convicted of the offence charged and the appeal dismissed. 
1. In challenging the Respondents’ decision not to further reduce the customer connection fees for unified carrier licences (“Decision”), the Appellants argued that, in fixing the fees the Respondents had erred in law in budgeting for notional tax and dividends to generate a surplus above the target statutory return. 2. The decisive issue was whether the Respondents made errors of law concerning both the ambit of the power to prescribe these licence fees under the Telecommunications Ordinance (Cap 106) and also in the construction of several provisions of the Trading Funds Ordinance (Cap 430). 3. The Court held that when the power to license is an element in a regulatory scheme, the power does not authorise the imposition of a fee which in substance is a tax upon the activity to be conducted under the cover of the licence. If the licensee as a practical matter has no choice whether or not to acquire the licence and there is an insufficient relationship between the “fee” for the licence and the administration of the scheme, then, at least to the extent of the excess, the “fee” may properly be seen as a tax. 4. Further, the Court concluded that the objectives for the establishment of a trading fund under the Trading Funds Ordinance are directed to self-funding from income generated by the trading fund. There is no provision, as a purpose of the trading fund, for the generation of profits to be paid into the general revenue of the Government. 5. In the present case, the Respondents did budget for notional tax and dividends to create a surplus that was designed to be transferred to the general revenue. The surplus was not fortuitous. 6. For these reasons, this Court unanimously allowed the appeal. The appropriate remedy would be a declaration to the effect that in formulating the Decision, the Respondents fell into errors of law by wrongly construing: (a) the Telecommunications Ordinance as permitting the prescribing of a licence fee which included an element of what in substance was a tax upon the licensee; and (b) the Trading Funds Ordinance as permitting the inclusion in budgets of the Office of the Communications Authority Trading Fund projections for notional tax or dividends to be treated as surplus funds to be transferred to the general revenue. Separate and concurring judgment of Mr Justice Tang PJ: 7. The fundamental question should be whether the licence fees levied under the Telecommunications Ordinance may include any profit, to which the answer must be no. 8. Given thatthe Telecommunications Ordinance does not authorise recovery in excess of cost, any incidental profits made in the operation of the Office of the Communications Authority Trading Fund cannot be a “distributable profit” transferable into the general revenue under the Trading Funds Ordinance. 
1. On 11 August 2010, the Respondent, Mr Ng (the victim) and his friend Mr Leung were involved in a brawl during which the Respondent punched Mr Ng on the bridge of his nose, causing him to fall face upward on the ground. The Respondent then kicked Mr Ng several times, fracturing Mr Ng’s ribs. Mr Ng died the following day. The cause of death was traumatic head injury. In other words, the Respondent’s punch, but not his kicks, caused Mr Ng’s death. 2. The Respondent was charged with murder. He claimed to be acting in self-defence but was found guilty of murder by the jury. The Judge had directed the jury on the basis that the intention necessary for murder could be deduced from the Respondent’s action in punching Mr Ng followed by the kicks. The Court of Appeal allowed the Respondent’s appeal, setting aside the conviction for murder and substituting a conviction for manslaughter on the basis of unlawful act. It held that the Judge should have reminded the jury that the Respondent’s kicks to Mr Ng did not kill him and directed the jury to consider whether the punch, which did kill him, was inflicted with the intention to cause grievous bodily harm. The Appellant sought to set aside the Court of Appeal’s judgment and to have substituted a conviction for manslaughter on the basis of diminished responsibility relying on fresh medical evidence as to the Respondent’s mental condition at the time of the attack. 3. The question of law was how, in cases of violence, the jury should be directed in inferring the necessary intent for the offence charged. Should the jury be directed to focus only on the blow or blows causative of the prohibited outcome or should they instead be directed to focus on all the circumstances, including all the blows struck or other matters capable of demonstrating the defendant’s intent? 4. The Court noted that the Respondent’s assault occupied a short period of time, occurred at the same physical location, was without any interruption and was unaccompanied by any statement indicating a change of intention. His actions were all part and parcel of a single attack. The Court held that in cases of violence involving a single assault consisting of multiple blows, the jury should be directed in inferring the necessary intent to focus on all the circumstances, including all the blows struck or other matters capable of demonstrating the defendant’s intent. 5. Accordingly, the Court unanimously allowed the Appellant’s appeal. However, instead of restoring the conviction for murder, in the light of the undisputed fresh medical evidence, it entered a conviction for manslaughter by reason of diminished responsibility and confirmed the order for the Respondent to be detained for an unspecified period in Siu Lam Psychiatric Centre. 
The Deceased was found to have collapsed at the toilet of the office of employment in Dongguan. He was taken to a local hospital but unfortunately was found to have died before arrival. There was no autopsy before cremation took place. It is not disputed that the cause of the Deceased’s death is unknown. The Appellant, wife of the Deceased, applied for compensation against the Respondent on behalf of herself and other members of the family of the Deceased under the Employees’ Compensation Ordinance (the “Ordinance”). Section 5(1) of the Ordinance renders an employer liable to pay employees’ compensation when “personal injury by accident arising out of and in the course of the employment is caused to an employee”. The trial judge dismissed the Appellant’s application on the basis that the Appellant was unable to show that the Deceased’s death was due to an accident. The Court of Appeal and the Court of Final Appeal (the “Court”) upheld the trial judge’s decision and rejected the Appellant’s claim. This appeal turned on the meaning of “personal injury by accident” in section 5(1) of the Ordinance and the effect of the presumption laid down by section 5(4)(a) of the Ordinance. Section 5(4)(a) provides that “an accident arising in the course of an employee’s employment shall be deemed, in the absence of evidence to the contrary, also to have arisen out of that employment”. The Court rejected the Appellant’s argument that this presumption operates so that where injury occurs at work, there is placed on the employer an onus to adduce evidence to the effect that the injury was not caused by accident. It held that the question of whether the injury was by accident is distinct from, and logically anterior to, any question of whether what has happened arose out of or in the course of the employment. In respect of the meaning of “personal injury by accident”, it was contended by the Appellant that the accident and the injury can be one and the same event. The Court rejected the Appellant’s argument and held that the expression “injury by accident” encompasses cause and effect, with accident as the cause and injury as the effect. The accident must be distinct from the injury, with the accident being at least a contributory cause and the injury being the effect. 
1. The Appellant was convicted after trial of one count of Common Assault. At trial, the Appellant admitted that he had struck and shook Ms Yau. His defence was that he honestly believed Ms Yau consented to his use of force as he was seeking to rid her of a ghost that he believed possessed her at the time. The Appellant testified that on previous occasions, Ms Yau had permitted him to use limited force on her when she acted as if she were possessed. Ms Yau did not give evidence at the trial. 2. In support of this defence, the Appellant sought to admit as evidence records of “WhatsApp” messages (the “messages”) exchanged between Ms Yau and himself prior to the alleged offence. The messages showed Ms Yau referring to a spirit that possessed her and what he should do when she appeared possessed. A defence witness also testified that the Appellant had consulted him to arrange an exorcism ritual for Ms Yau prior to the alleged offence. 3. At trial, the Magistrate refused to admit the messages as evidence because of a legal rule whose effect was that, in the absence of certain technical proof, the messages could not be used to prove whether Ms Yau actually consented to the Appellant’s use of force. The Magistrate also refused to place any weight on the testimony of the defence witness. 4. The Court of Final Appeal held that the Magistrate ought to have admitted the messages as evidence. The key question in this case was whether the Appellant honestly believed that Ms Yau consented to the use of force. At trial he was seeking to rely on the messages to show that, whether or not she actually consented, the messages caused him to believe that she consented to limited force when she acted as if possessed. Therefore the rule on which the magistrate relied did not arise. 5. The Court of Final Appeal also held that the Magistrate erred in rejecting the testimony of the defence witness which provided a historical context and also greater credibility to the Appellant’s defence. Without this setting, the Appellant’s account may have been considered to be inherently incredible. 6. Accordingly, the Court of Final Appeal held that the Magistrate’s refusal to admit the messages as evidence and take into account the testimony of the defence witness rendered the Appellant’s conviction unsafe, resulting in grave and substantial injustice to the Appellant. It therefore unanimously allowed the appeal. 
1. The 4 Appellants: GA, FI and JA are mandated refugees; PA is a screened-in torture claimant. It is accepted that they have been “effectively stranded here in Hong Kong for a prolonged period of time”. At the commencement of the present judicial review proceedings, they had not been given permission to work. 2. The Appellants sought to challenge the decision of the Director of Immigration (the “DOI”) not to permit persons like them to work in Hong Kong. The Court of First Instance quashed the DOI’s refusal of GA’s request for permission to work on the basis that his circumstances had not been properly considered and held that the DOI must consider the request afresh. Other than this, the applications for judicial review were dismissed. On appeal, the Court of Appeal dismissed the Appellants’ appeals. 3. On various dates in 2013, GA, FI and PA have each been given permission to work. JA is at present serving a term of imprisonment for a drugs related offence. Despite this, the Court of Final Appeal was of the view that the appeals should proceed because important issues are raised and should be dealt with in the public interest. 4. In the current appeal, the Appellants relied on (i) Article 14 of the Hong Kong Bill of Rights (“the BOR”), (ii) Article 6 of the International Covenant on Economic, Social and Cultural Rights (“the ICESCR”) and (iii) Article 33 of the Basic Law to contend that they have a constitutional right to work in Hong Kong and, given this right, any exercise of discretion not to permit them to work can only be justified by the application of the proportionality test. Furthermore, they relied on Article 3 of the BOR and contended that not permitting them to work constituted inhuman and degrading treatment (“IDT”). They also argued a right to work existed at common law. 5. The Court of Final Appeal unanimously dismissed the appeal. It was held that no constitutional right to work existed in favour of the Appellants, and therefore, no question of proportionality arose for consideration. The Court also held that there was no right to work at common law for the Appellants. 6. The Court held that section 11 of the Hong Kong Bill of Rights Ordinance (Cap.383), subject to section 5 of the same Ordinance, intended to except immigration legislation that deals with a person’s entry into, stay in and departure from Hong Kong, and such immigration control included the aspect of whether a person should be permitted to work. Therefore, the Appellants are unable to rely on Article 14 of the BOR. 7. The Court also held that Article 6 of the ICESCR cannot be relied on, reiterating the principle that international treaties do not confer or impose any rights or obligations on individual citizens unless and until they are made part of our domestic law by legislation. The Appellant’s submission that Article 6 of the ICESCR has been incorporated into sections 17G(2), 38AA and 37ZX of the Immigration Ordinance (Cap.115) was rejected by the Court. The Court further held that the Reservation of the United Kingdom Government dated 20 May 1976 was clearly a reservation for the purpose of excluding or modifying the obligation under Article 6 of the ICESCR. 8. It was further held that Article 33 of the Basic Law confers the right of freedom to choose an occupation, but not a right to work. The Court was also of the view it is difficult to conceive of the existence of a right to work under the common law. 9. Nevertheless, the Court held that the DOI’s discretion is not unrestricted. In particular, there can be no derogation from Article 3 of the BOR which confers an absolute right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment. The burden is on the applicants to show that there is a substantial and imminent risk of IDT if the DOI were not to grant them permission to work. However, since there is a real possibility of a dispute on the facts, the Court declined to make a determination on the facts whether or not the Appellants have been subjected to IDT in the present case. Nor would it remit the determination of this issue to another tribunal, given that GA, FI and PA have been given permission to work and JA is currently serving a sentence of imprisonment, the determination of this issue would be an academic exercise. 
1. The appellant was convicted of one count of conspiracy to traffic unlawfully in a dangerous drug, namely, methamphetamine (“ice”). The prosecution’s case was that the second defendant (“D2”) recruited a 15-year-old boy (“Pang”) to export 650g of ice for the first defendant (“D1”) from Hong Kong to Australia. There was no evidence that the appellant was involved at this stage. 2. Subsequently, Pang who successfully smuggled the ice into Australia, had it stolen from his custody. The appellant went to Australia some two months after Pang’s arrival in that country and tortured him for a number of days, accusing him of having stolen the ice himself.The entire conduct of the appellant relied on by the prosecution to establish liability occurred in Australia. 3. As there was no evidence that the appellant was involved in the process of exporting the drug from Hong Kong, his involvement as a party to the conspiracy from the start could only be proved if such involvement was the only reasonable inference to be drawn from the evidence. Such an inference could not be drawn since it was at least as reasonable to infer from his assaults on Pang in Australia that he only became involved after and separately from the original conspiracy. 4. The Court similarly rejected, on the same reasoning, the respondent’s submission that the appellant subsequently joined the conspiracy. The Court also found that the trial judge’s direction on the drawing of the inference was defective. 5. The respondent submitted in the alternative that the conspiracy encompassed not only exporting the drug from Hong Kong but also its trafficking in Australia and repatriating the proceeds to Hong Kong. The respondent further relied on a decision of the Canadian Supreme Court to contend that as a “substantial measure of activities constituting the crime” took place in Hong Kong, Hong Kong courts should have the jurisdiction to try the alleged conspiracy. 6. Both submissions were rejected. Such a conspiracy impermissibly went beyond both the charge preferred in the indictment and the statutory definition of the substantive offence. In expanding the scope of conspiracy, the Court of Appeal and the respondent were also positing a conspiracy to commit offences abroad which falls outside the jurisdiction of the Hong Kong courts. The Canadian decision did not affect this. 7. There was therefore no case to answer, let alone a valid basis to sustain the conviction of the appellant. The appeal was allowed and the conviction quashed. 
1. The appellant (D3) was one of four men (D1 to D4 respectively) arrested on 14 August 2012 after they had been seen by police removing metal sheets from a tin shed in Tai Po. 2. D1 to D3 were tried before a Magistrate and convicted on 12 October 2012. The appellant and D1 were convicted of taking employment while being in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully. D2 was convicted for taking employment while subject to a removal order. The Magistrate was satisfied an inference of employment could be drawn on the evidence before her. 3. D4 was tried separately before a different Magistrate on 8 November 2012 and acquitted of the offence for which D1, D2 and the appellant were, on the same prosecution evidence, convicted. The Magistrate who acquitted D4 did not think the sole and irresistible inference on the evidence was that he was employed. 4. The appellant appealed his conviction to McWalters J of the Court of First Instance, who upheld the Magistrate’s findings and dismissed the appeal on 1 March 2013. 5. D1 and D2 appealed separately to Deputy High Court Judge Stuart-Moore, who allowed their appeals and quashed their convictions on 4 July 2013. 6. The appeal to the Court of Final Appeal was not opposed by the respondent who was prepared to concede the final appeal solely on the ground of insufficiency of evidence against the appellant to prove employment. 7. The Court of Final Appeal concluded that the inference of employment was not the sole and irresistible inference to be drawn from the evidence. That being so, proof of the offence beyond reasonable doubt was not established. For that reason, the appellant’s appeal was allowed and his conviction quashed. 8. The joint submission of the parties also contained submissions on behalf of the appellant based on the inconsistency of the verdicts and raising an argument based on the constitutional and common law principle of equality. The Court of Final Appeal did not consider it necessary to deal with those other submissions in order to decide the appeal. However, this should not be taken to endorse the view that, if the evidence before a court is such that the tribunal of fact, properly directed as to the law, could conclude that the offence is proved to the requisite standard of proof, the mere fact that another tribunal of fact has acquitted a co-accused on the same evidence would necessarily lead to the conclusion that the convicted defendant’s conviction involved substantial and grave injustice. 
Lai Wing Kee (the “Deceased”) was killed in an industrial accident. At the relevant time he was engaged in helping a crane driver to lift a heavy forklift truck onto the back of a lorry. The truck was suspended from the crane hook by two chains when one of them snapped. It killed the Deceased who was standing underneath. The four defendants are associated companies. The Deceased was employed by the 2nd Defendant under a written contract and subsequently an oral agreement. The 1st Defendant paid the salaries of the Deceased and described itself as the Deceased’s employer in various documents including the Employer’s Returns to the Inland Revenue. At the relevant time the crane lorry, owned by the 2nd Defendant, was lent to and used by the 3rd Defendant to collect a forklift truck. An employee of the 4th Defendant was at the premises where the truck was kept and received a message from the 3rd Defendant that the truck would be collected. He passed on the message to the Deceased, who was working at the premises, and asked him to assist an employee of the 3rd Defendant in loading the truck. The Plaintiff, as the Deceased’s administratrix, sued the Defendants for damages arising from his death. There is no dispute that the method used to lift the truck onto the lorry was unsafe. There is also no dispute that the 2nd Defendant was in breach of its duty as an employer to the Deceased, which enabled the Plaintiff’s claim to be paid in full. The 2nd Defendant, however, claimed that the 1st, 3rd and 4th Defendants are liable for the same damage and ought to contribute to the loss. The trial judge found all four defendants liable on the basis that at the material time, the 1st and 2nd Defendants were general employers of the Deceased and the 4th Defendant was his employer pro hac vice (temporary employer). The 3rd Defendant was also liable because it had provided the metal chains which are proven to be defective. The Court of Appeal affirmed the trial judge’s decision. The Court of Final Appeal (the “Court”) unanimously allowed the appeals by the 1st, 3rd and 4th Defendants. In respect of the 1st Defendant, the Court held that it was not the Deceased’s employer. The Inland Revenue returns stating otherwise were either wrong, or done for some tax or accounting purpose, which could not have created an employment relationship between the 1st Defendant and the Deceased. In respect of the 3rd Defendant, its liability was said to rest upon the fact that the defective chains were on the lorry and that the lorry had been used by the 3rd Defendant. The Court of Appeal concluded that the chains must have been intended by the 3rd Defendant to be used for the lifting operations. However, the Court rejected this conclusion as the evidence showed that the chains were suitable for lashing objects to the lorry but not for lifting. The mere fact that the chains were on the lorry that was used by the 3rd Defendant was not a representation by the 3rd Defendant that they were suitable for lifting a heavy forklift truck. If the chains were not intended for use as lifting gear, there could not have been a breach of duty by the 3rd Defendant. In respect of the 4th Defendant, the lower courts found that its employee, by telling the Deceased to help load the truck, constituted the 4th Defendant the Deceased’s employer pro hac vice (temporary employer). However, the Court held that this doctrine has no application in the present case, and that the duty of anyone other than the actual employer of the Deceased is to take reasonable care in all the circumstances. On the facts, the Court rejected the argument that the 4th Defendant (through its employee) was negligent in not supervising the work of loading the lorry. 
1. On the evening of 22 March 2008, the “Yao Hai” (“YH”), a Chinese bulk carrier, collided with the “Neftegaz 67” (“N67”), a Ukrainian oil-rig supply vessel, in a buoyed channel running between the northern coast of Lantau Island and the coast near Castle Peak in the New Territories. N67 sank with the loss of 18 of her 25 crew. YH suffered damage but none of her crew was lost or injured. 2. The collision led to the prosecution of N67’s master (the 1st Appellant); YH’s master; the senior pilot who was navigating YH at the time (the 2nd Appellant); and the junior pilot assisting him. Each was charged with endangering the safety of others contrary to section 72 of the Shipping and Port Control Ordinance. 3. After trial in the District Court, all four defendants were convicted. However, the Court of Appeal quashed the convictions of YH’s master and junior pilot but upheld the convictions of the 1st and 2nd Appellants, who then appealed to the Court of Final Appeal. 4. They were convicted on the basis that the prosecution merely had to show that by their conduct the appellants had endangered the safety of others at sea, without having to prove any state of mind on their part regarding the risks. 5. However, the Court held that the offence under section 72 was a serious criminal offence that included a mental element regarding the danger caused. It held that there could be no conviction under section 72 if there was a reasonable doubt as to whether the defendant had an honest belief held on reasonable grounds that his conduct would not endanger the safety of others and the prosecution could not negative such belief. 6. Since the courts below had not treated this as a requirement of section 72, the Court held that the convictions of the Appellants should be quashed unless it could be shown that they would inevitably have been convicted if the correct legal test had been applied. 7. In respect of the 1st Appellant, the Court held that on the trial judge’s findings, the 1st Appellant had, by navigating N67 in breach of the relevant rules of navigation, endangered the safety of others and that he had no reasonable grounds for believing that he was not exposing others to danger. Accordingly, the trial judge would have inevitably come to the same conclusion, and he would have been convicted. Therefore, his appeal was dismissed. 8. In respect of the 2nd Appellant, the Court held that, although his belief was mistaken, he had raised at least a reasonable doubt as to whether he had an honest and reasonable belief that his conduct did not endanger others. Therefore, the 2nd Appellant’s conviction was not inevitable and his appeal was allowed. 
The appellant (HCJV) was the principal contractor for the building of Container Terminal 9 (CT9 Project), which required a massive amount of contaminated mud to be excavated. HCJV therefore had to secure an approved dumping site for disposal of the contaminated mud. The cost for such disposal would be much cheaper if dumped in Mainland waters than in Hong Kong. By two written agreements, HCJV appointed the respondent (SIL) its agent to obtain the necessary dumping permits and other authorizations from the Mainland authorities, agreeing to pay SIL a fee of HK$17.00 per m3 of mud dumped. The main dispute was whether HCJV was bound to pay SIL fees calculated according to an agreed amount of mud to be dumped (as SIL argued) or whether HCJV only had to pay at the agreed HK$17.00 per m3 rate for the actual amounts dumped. Having been put in funds to pay Mainland permit fees, SIL duly obtained the required permits and authorizations and HCJV proceeded to dump a total of 338,128 m3 at a site known as “SEZ” until such dumping operations were stopped by pressure from environmental groups resulting in a refusal of further loading permits in Hong Kong by the Environmental Protection Department. HCJV eventually dumped the mud in Hong Kong waters. SIL sued HCJV for breach of contract. SIL argued that the contract entitled it to payment at the agreed HK$17.00 per m3 on the basis that 6,410,770 m3 of mud would be dumped, claiming HK$108,983,090.00. The trial judge rejected that claim and held that the contract was a measurement contract and that the respondent was only entitled to receive payment in respect of mud actually dumped at SEZ (338,128 m3 x HK$17.00 per m3 = HK$5,748,176.00). He allowed the appellant’s counterclaim, holding that since HCJV had already paid HK$8,900,000.00 to SIL, it had been overpaid and had to refund HK$3,151,824 to HCJV. The Court of Appeal reversed the trial judge’s decision. It decided that the contract was a fixed sum contract, although on a different basis from that claimed by SIL in its pleadings, holding that SIL was entitled to HK$17,000.000 and to an indemnity against its potential liabilities under certain Mainland contracts. The Court of Final Appeal reversed the Court of Appeal’s decision on the main contractual claim. It held that on a proper interpretation, the contract was a measurement contract, as the trial judge had correctly held. However, the Court of Final Appeal dismissed the appellant’s counterclaim as it found that the sums claimed as overpayments by the appellant had been on-paid to the Mainland authorities and were not intended to be refundable. The Court of Final Appeal also criticized the lack of pleadings on two alternative cases which had been allowed to be run by the respondent during the trial, emphasising that pleadings are fundamental to enabling the adversarial system to operate fairly. 
Introduction 1. Article 42(2) of the National Security Law (“NSL 42(2)” and “NSL” respectively) provides: “No bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.” 2. On 12 December 2020, the respondent, Mr Lai Chee Ying, was arrested and charged with one count of “collusion with a foreign country or with external elements to endanger national security”, that being an offence under Article 29(4) of the NSL. The Chief Magistrate, Mr Victor So, refused bail and remanded the respondent in custody. 3. On 23 December 2020, the respondent applied to the Court of First Instance (“CFI”) for a review of the magistrate’s refusal of bail. This review was heard by a judge of the CFI (Alex Lee J), who granted the respondent bail against undertakings offered by the respondent not to engage in certain conduct and activities that might be regarded as the offence of collusion under the NSL and on other conditions governing matters including where the respondent would reside and requiring the surrender of his travel documents. 4. In granting bail, the Judge applied legal principles derived from earlier decisions, in particular Tong Ying Kit v HKSAR (“Tong (No.1)”) [2020] 4 HKLRD 382 and HKSAR v Tong Ying Kit (“Tong (No.2)”) [2020] 4 HKLRD 416 decided in August 2020 concerning the interpretation and application of NSL 42(2). 5. On 31 December 2020, on its application, the prosecution was granted leave to appeal to the Court of Final Appeal against the Judge’s grant of bail to the respondent to raise an important point of law, namely “What is the correct interpretation of NSL 42(2)?” 6. The Court held that the determination of the meaning and effect of NSL 42(2) required that the provision be examined in the light of the context and purpose of the NSL as a whole, taking into account the constitutional basis on which the NSL is applied in the Hong Kong Special Administrative Region (“HKSAR”). Jurisdiction 7. In examining the formulation and application of the NSL to the HKSAR, the Court noted the absence of locally enacted national security legislation as constitutionally required by Article 23 of the Basic Law and the serious and prolonged disturbances to public order and challenges to the authority of the HKSAR and PRC governments in recent months. In view of this, the Central Authorities had decided to take the enactment of such legislation into their own hands, which they did by a Decision of the National People’s Congress (“NPC”) dated 28 May 2020 (“the 5.28 Decision”) entrusting the NPC Standing Committee (“NPCSC”) to formulate the relevant laws and determine whether to include them in Annex III of the Basic Law as a national law having application in the HKSAR. The draft law was presented to the NPCSC on 18 June 2020 which decided that it should be added to the list of laws in Annex III of the Basic Law, since safeguarding national security is a matter within the purview of the Central Authorities. On 30 June 2020, the NPCSC duly decided to add the NSL to the list of laws in Annex III of the Basic Law to be applied locally by way of promulgation by the HKSAR. The Chief Executive duly promulgated the NSL by giving notice that the NSL would apply in the HKSAR as from 11pm on 30 June 2020. 8. The Court noted that promulgation of the NSL as a law of the HKSAR was the product of the NPC’s 5.28 Decision and the NPCSC’s formulation and listing of the NSL in Annex III of the Basic Law, done in accordance with Articles 18(2) and 18(3) of the Basic Law on the footing that safeguarding national security is a matter outside the limits of the HKSAR’s autonomy and within the purview of the Central Authorities, the Central People’s Government having an overarching responsibility for national security affairs relating to the HKSAR. 9. The Court held that, in the light of the Court of Final Appeal’s decision in Ng Ka Ling v Director of Immigration (No.2) (1999) 2 HKCFAR 141, the legislative acts of the NPC and NPCSC leading to the promulgation of the NSL as a law of the HKSAR, done in accordance with the provisions of the Basic Law and the procedure therein, are not subject to review on the basis of any alleged incompatibility as between the NSL and the Basic Law or the International Covenant on Civil and Political Rights as applied to Hong Kong. 10. Accordingly, the respondent’s argument, that, insofar as NSL 42(2) places a burden on the accused that bail should be granted, it derogates from constitutionally protected rights, including the right to bail and the right to personal liberty, so that unless justified must be remedially interpreted so as to place a burden on the prosecution instead, was rejected for lack of jurisdiction. The proper construction of NSL 42(2) 11. NSL 42(2), construed in context, envisaged that bail might be granted in cases involving offences of endangering national security and that, in respect of such offences, the laws of the HKSAR shall apply to procedural matters. 12. Although there was no power to hold any provision of the NSL to be unconstitutional or invalid as incompatible with the Basic Law and Hong Kong Bill of Rights (“HKBOR”), Articles 4 and 5 of the NSL expressly stipulate that those rights, freedoms and values are to be protected and adhered to in applying the NSL. The Court held that, as far as possible, NSL 42(2) is to be given a meaning and effect compatible with those rights, freedoms and values. Save insofar as NSL 42(2) constitutes a specific exception thereto, that body of law, comprising not only the human rights and rule of law principles but also the generally applicable HKSAR rules governing the grant or refusal of bail, is intended to have continued effect in NSL cases as part of a coherent whole. 13. The Court held that NSL 42(2) creates such a specific exception to the general rule in favour of the grant of bail and imports a stringent threshold requirement for bail applications. 14. In applying NSL 42(2) when dealing with bail applications in cases involving offences endangering national security, the judge must first decide whether he or she “has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security”. In doing so: (1) The judge should consider everything that appears to the court to be relevant to making that decision, including the possible imposition of appropriate bail conditions and materials which would not be admissible as evidence at the trial. (2) The judge should take the reference to “acts endangering national security” to mean acts of that nature capable of constituting an offence under the NSL or the laws of the HKSAR safeguarding national security. (3) The judge should regard the NSL 42(2) “sufficient grounds” question as a matter for the court’s evaluation and judgment and not as involving the application of a burden of proof. 15. If, having taken into account all relevant material, the judge concludes that he or she does not have sufficient grounds for believing that the accused will not continue to commit acts endangering national security, bail must be refused. 16. If, on the other hand, the judge concludes that taking all relevant material into account, he or she does have sufficient grounds, the court should proceed to consider all other matters relevant to the grant or refusal of bail, applying the presumption in favour of bail. This includes consideration of whether there are substantial grounds for believing that the accused would fail to surrender to custody, or commit an offence (not limited to national security offences) while on bail, or interfere with a witness or pervert or obstruct the course of justice. Consideration should also be given to whether conditions aimed at securing that such violations will not occur ought to be imposed. Errors in the Judge’s decision 17. In granting the respondent bail, the Judge applied legal principles derived from Tong (No.1) and Tong (No.2) which were wrong as a matter of law. The judgment in Tong (No.1) erroneously eliminated the more stringent threshold requirement intentionally imposed by NSL 42(2) as a specific exception to the general principles regarding bail, instead imposing a positive requirement that the court has to be satisfied that there do exist grounds to believe that the accused will continue to commit acts endangering national security as a basis for refusing bail. Consequently, the court in Tong (No.1), applied in Tong (No.2), erroneously treated NSL 42(2) as having hardly any impact on the generally applicable bail regime under the Criminal Procedure Ordinance (“the CPO”). 18. In the Judge’s ruling granting bail to the respondent, he applied this erroneous line of reasoning and his approach was clearly inconsistent with the Court’s analysis in this judgment and could not be supported. The Judge misconstrued NSL 42(2) and misapprehended the nature and effect of the threshold requirement created. Although he purported to apply the correct legal test, the Judge in fact adopted an erroneous approach by eliding the NSL 42(2) question with the discretionary considerations set out in the CPO and never made a proper assessment under NSL 42(2). Conclusion 19. The appeal was accordingly allowed and the Judge’s decision to grant the respondent bail set aside. 20. As had been noted when the Appeal Committee granted leave to appeal, the question before the Court was of a limited nature. If so advised, the respondent might make a fresh application for a review of the Chief Magistrate’s refusal of bail, but it fell outside the jurisdiction of the Court to conduct such a review. In the meantime, the respondent would be remanded in custody. 
1. Mr WONG Denis Tak Keung (the Defendant) was charged with, pleaded guilty to and convicted of the following charges: Charge 1 2. ‘Incitement to subversion’, contrary to Articles 22 and 23 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region in Schedule to the Promulgation of National Law 2020 (LN136 of 2020) (‘NSL23 offence’), and Charge 3 3. ‘Possession of arms without a licence’, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap 238. The Facts 4. During the period between 27 March 2020 and 10 February 2022 (ie a period of slightly more than 21 months), the Defendant called to be posted a total of 25 posts in his 2 Facebook accounts displaying to the general public[1]; inviting other persons to: (1) join his martial arts class in the name of 「集英楊武堂 殺鬼隊訓練班」; (2) have martial arts training in his class – with videos to demonstrate martial arts skill; (3) learn how to use weapons in his class – with photo of a person holding crossbow and arrow; (4) join his troop; and inciting other people to (5) overthrow the Communist Party of China by violent revolution after sufficient training; (6) overthrow or undermine the Government of the Hong Kong Special Administrative Region by violent revolution; (7) establish a shadow government and an independent Hong Kong State – with a picture of a black flag marked with “Independent”; (8) support and encourage general public to resist the authority (with photo of the culprit who attacked and used a knife to stab / wound a police officer on 1 July 2021 and photo of machetes attached; (9) to take revenge action, including violence and war, against the Hong Kong Police Force and the Communist Party of China on special dates such as 21st day of July. The defendant also left his contact numbers on the posts. 5. On 20 March 2022 a police officer was deployed to go to the 「集英楊武堂」at a TST premises to enrol in the martial arts class. The Defendant was the person in charge and the instructor of the class. There were 5 other students in the class. After the class the Mr Wong was arrested. 6. The following items were displayed on the window shield of the TST premises: (1) 8 photos / posters, which were usually used for supporting the anti-government protesters, eg: • Photo of CHOW Tsz Lok (周梓樂); • Photo of CHAN Yin Lam (陳彥霖); • Photo of LEUNG Kin Fai (梁健輝) (who committed suicide after using knife to stab and wound a police officer), etc; • Photo of a protester at Tsuen Wan riot; • Photo of a protester injured at Sai Wan Ho riot; (2) 5 electric candles. 7. The police also seized 4 piles of handwritten notes from the Defendant’s bag including notes either addressed to other persons (in the names of Tony and Johnny) or no one in particular and attendance records. The contents of these notes can be summarized thus: (1) Proposal to establish a party to promote Hong Kong Independence with force (「香港武獨黨」). (2) The Defendant’s aim was to overthrow the Hong Kong Special Administrative Region Government, promote Hong Kong Independence and establishment of a Hong Kong Independent State. (3) Although on the surface it was to provide martial arts training to interested participants, his true aim was to recruit students, provide military training, in order to overthrow the government. (4) The trainings included martial arts and the use of weapons. (5) His proposal to set up a Hong Kong Independent troop and a shadow government. (6) The Defendant proposed to look into the following matters and emphasized: (i) Training; (ii) Self-reliance / received overseas support; (iii) Set up temporary Hong Kong Government; (iv) Constitution of Hong Kong State; (v) Protection of Hong Kong sovereignty and citizen; (vi) Collusion with elements in Taiwan, Tibet, Uyghurs, etc; (vii) Establishment of military school; (viii) Declare war with the Communist Party in Hong Kong and the Mainland; (ix) Seek assistance from foreign countries; (x) Provide support to other overseas anti-government activities. (7) For the troops in Hong Kong, the Defendant proposed to: (i) Provide training to soldiers; (ii) Increasing the military power; (iii) Protect the Hong Kong sovereignty and citizen; (iv) Destroy the People’s Liberal Army in Hong Kong; (v) Maintain loyalty; (vi) Protect the worldwide value. (8) A list of traditional martial arts techniques, weapons / equipment, including swords, knives, helmets, protective vests and shields. (9) A detailed examination and comparison of function, power and price of different brands of cross-bows (draw-weight ranging from 15 kgs to 80 kgs); (10) The attendance records showed that at some point there were 20 students in one class. There were 2 classes on Sundays (between 4 pm and 6 pm & between 6 pm and 8 pm), and 1 class on Mondays (between 7 pm and 10 pm). 8. Items seized in the Defendant’s Residence at Shatin: (1) 2 crossbows (subject matter of the 3rd Charge, the draw weights of which are respectively 26 kg and 28 kg, more than 4 times the legal limit of 6 kg); (2) 3 machetes; (3) 1 axe; (4) 3 swords; (5) 21 arrows; (6) 40 short arrows. 9. The issue to be determined is whether the circumstances of the offence committed were of a serious nature or a minor nature. In the latter case (‘the Lower Tier”), the court would have to order some form of detention or restriction up to 5 years. In the former case (the Upper Tier) this court has to order a fix-term imprisonment of at least 5 years, but no more than, 10 years. The wordings of the article impose a mandatory minimum of 5 years’ imprisonment for an Upper Tier Offence even after taking into consideration of all mitigating factors and affording whatever discount to which a Defendant is entitled.[2] 10. For the purpose of the present case the wording of NSL 23 refers to the circumstances of inciting others to commit the NSL 22 offence. That the substantive offence had not been completed may well be a mitigating factor, but it is not a pivotal element in deciding whether the NSL 23 offence had been committed in a serious or minor manner. Considerations for Determination 11. This Court found they were of a serious nature and, in accordance to the wording of Art 23, the offender should be sentenced to a fixed-term imprisonment of not less than 5 years and no more than 10 years 12. The following factors were most pertinent to the court’s determination: (1) Read as a whole, the posts were designed to rekindle the feelings of discontent and disgust against the Police Force, the Hong Kong SAR and the Chinese Government and advocated the learning and using of physical combat skills and weapons to upset the status quo and overthrow the SAR and the Chinese Government with violence. (2) The use of social media (namely, the Facebook) for committing incitement is an aggravating factor as the Facebook accounts were open to public, and the incitements and subversive messages could also be accessed by ‘friends’ who can share the same posts with others and repost them by making screen shots of the same. By opening 2 different accounts in the Facebook, the Defendant had shown that it was not an impulsive, uncalculated idle act for the simple venting of his personal grievance against the status quo. It was a deliberate move on his part to double his audience, to solicit, enlist and persuade others to join in his act of defiance against the SAR and the Chinese Government. It also has the effect of creating to the impression that those of the like mind were greater in number than they actually are. The Defendant’s call for a violent revolution is not confined to posting idle suggestions of overthrowing the government, setting up an independent state, collusion with other dissidents and seeking assistance from foreign countries. Although the feasibility of their implementation is doubtful, he had gone about renting a place, setting up a studio for martial arts lessons and gathering information about, stockpiling weapons and arms to implement his plan for a violent revolution to overthrow the SAR and Chinese Government. The studio where the lessons were held were decorated as a shrine glorifying the supposed martyrs and riotous behaviour. It was a deliberate act on his part to incite those who attended his classes resentment towards the government. (3) The posts were made and on display, for the period of 21 months, during which the Defendant regularly made up and posted messages. There were a total of 39 posts of subverting nature, advocating the idea of a violent revolution to overthrow the SAR and Chinese Government, soliciting, discussing and encouraging those of a like mind, criticizing those who took a different view from his. (4) As on 20 March 2022, there were a total of 5,943 ‘friends’ to his Facebook Accounts. While the ‘friends’ of the two accounts may overlap, any of the friends can either share the posts with other Facebook accounts or repost the messages by using the screen shot function. Once the messages are posted in the social media, like a virus there is no way to contain their proliferation. There is no way to ascertain the exact scale of the Defendant’s incitement. According to Defendant’s record, there were 3 classes each week and at least 20 individuals enrolled to his classes with the use of their Facebook names. At the time of the raid, there were 5 students in his class. (5) Despite the naiveté of the idea, proposal and execution, there is no doubt the Defendant had gone to a lot of soul searching to come up with the proposal, plan and manner of execution. He repeatedly used contemporary events taking place in and outside Hong Kong and presented them as manifestations of the evil of dictatorship. The purpose was to nurture the sense of discontent, distrust and disgust of the SAR and the Chinese government. This is a consistent pattern of this behaviour and could not be something impulsive. (6) The basic premises of the Defendant’s proposal was to use violent means to alter the status quo. To that end he advocated the acquisition of the knowledge and use of martial arts, combat technique and weapons such as machetes and crossbows. It is not clear when these weapons would be used but certainly they were ready to be used. (7) There is no evidence that the Defendant acted in concert with other people. Nonetheless his inflammatory and subverting posts did attract approving responses from other netizens. Those who enrolled in his classes all registered under their Facebook names. (8) By posting on the Facebook Accounts (and making them open to the public), the Defendant was obviously aiming at inciting anyone who had an interest in the matter. (9) Apart from the fact that the Defendant actually started to implement his plan by giving classes as a preliminary step to start a violent revolution, there is no evidence of any other person motivated by the Defendant to make any move to topple the SAR and overthrow the Chinese Government with Violence. (10) There was no evidence that the Defendant’s incitement had any actual impact on the society. However, at that point of time Hong Kong was still shell-shocked from the social events that took place in the latter half of 2019. It would not be wrong to say that a section of the population was still irrational and gullible. The subverting posts added fuel to the long days of discontent. The danger of his blind rage, the suggestion of an apparently workable plan, and the attraction of his simple logic are real and cannot be ignored. Such subverting posts would create disturbances which would affect the route to normalcy and sully the reputation of China as a country and Hong Kong as a rational, free and peaceful society. 13. I found that the circumstances of the commission of the offence falls with the lighter side the spectrum of Upper Tier. And adopt 5 years and 6 months as a starting point. Discussions: Possession of Firearms or ammunition without licence (3rd Charge) 14. The maximum sentence is a level 6 fine and imprisonment for 14 years[3] . 15. In Defendant’s Shatin residence, the police found 3 machetes, 1 axe, 3 swords (all sharpened)[4], 21 arrows, 40 short arrows and the subject matter of the charge: 2 cross-bows. 16. The crossbows were inside a camouflage bag of on the floor of the store room next to the bed room[5] together with 61 arrows. 17. From the circumstances in which the crossbows were found, I have the following observations: • The Defendant pleaded ignorance on the legality of possession the arms. To begin with, ignorance of the law is not a defence, and having considering the whole of the evidence, I concluded that the arms and weapons were acquired not for their aesthetic value, but for the purpose of implementing what he advocated, namely, overthrowing the SAR and the Government. He had been extolling the importance of training in martial arts, military combat for the violent revolution, to that end he advocated and had offered martial arts training to convert the general public and those who already were of the like mind. The Defendant had also emphasised the importance of weapons in his vision of a revolution and had been making notes to study compare the use and functions of various brands of crossbows. • The arrows, essential for the use of crossbows as weapons, were placed conveniently together with the crossbows in a camouflage bag. They could be easily transported, assembled and put to use. • The bag was found on the floor of the storage room next to the Defendant’s bed room. It could be easily accessed by the Defendant himself or any visitor. • Unlike rifles which could be pre-loaded, the crossbows could only be loaded before they are put to use 18. The above observations led me to the inevitable conclusion that the Defendant had possession of the crossbows for his own use and/or the use of others for the purpose of a military uprising against the HKSAR and the Chinese Government. 19. By reasons of the above, I would adopt a 30 months’ imprisonment for charge 3. Sentence Order for the Defendant 20. For Charge 3, the 30 months’ imprisonment is reduced to 20 months in view of his guilty plea. 21. As the facts of the 2 charges were inextricably intertwined, and considerations for matters giving rise to both had also been taken into account in deciding on the sentencing order for Charge 1, to avoid punishing the Defendant twice on the same set of facts, and to take into account of the Totality Principle, I order the sentence of the charge 3 to run concurrent with that of Charge 1. Other Mitigating Factors for the Defendant 22. The Defendant is aged 60, married in Canada. He also had a son from a relationship, now living in China. He had a clear record. It had no psychiatric psychological issues. The Background Report and his lawyer gave a detailed account of his life. Despite his humble background, with the support of his parents and religious organizations he was affiliated to, he managed to complete his tertiary education in Canada and the United States. He had different few stints of working and living in Canada, the United States and China. He returned to Hong Kong in 1997 ‘with a view to contribute to the future of Hong Kong and China’. Since 2019 he set up a martial arts school to teach Tai-Chi and also took up part-time jobs to supplement his income. He claimed the onslaught of the pandemic had him mired in financial difficulties as the school could not operate and the part time jobs dried up. He blamed it on the Government’s pandemic control policy. That and his sympathy for the ‘victims’ of the 2019 social events drove him to vent his discontent in the Facebook. 23. His family, the social worker, friends and pupils all spoke well of him in their written pleas for clemency. 24. Strictly speaking, these letters do not contain any valid reasons for clemency. He was a grown man and must have known what he was promoting and attempting to implement would post danger to the stability of the society. 25. According to the wording of the NSL legislation, the Defendant could not avail himself to the customary 30 per cent discount on his guilty plea: to do so would reduce the sentence order below the minimum 5 years fix-term imprisonment. 26. After taking into account of all the circumstances, I reduce his sentence from 5 years and 6 months to 5 years. [1] His Facebook Accounts are global, meaning can be viewed by all [2] Subject to the effect off the extenuating circumstances, if any, enlisted in NSL 33(1). See HKSAR and LUI SAI YU CACC 61/2022, [2022] HKCA 1780, at para 63 of the Judgment of the Hon Poon CJHC. The facts of the case concerned the offence of incitement to secession, contrary to NSL 20 and NSL 21. [3] Section 13(2) of Firearms and Ammunition Ordinance, Cap 238 Fire arms and Ammunition Ordinance, Laws of Hong Kong [4] See para 15 of the admitted facts, and the photos at Annex E referred to. [5] As shown in the picture, D1’s residence was a small unit with 2 rooms situated side by side 
1. On 6 September 2010, the Appellant arrived at Hong Kong International Airport from Nairobi, Kenya but missed her connecting flight to Cambodia. After her onward flight was rebooked, her luggage was subjected to a customs inspection. The prosecution’s case was that when the Appellant was asked whether the suitcase belonged to her, she screamed loudly and cried. She then rummaged around in the suitcase before being stopped from doing so. During a search of the suitcase and a subsequent test carried out in her presence, a package was discovered containing just over 3 kilograms of methamphetamine hydrochloride. At this stage, the Appellant did not have any reaction and she was arrested and cautioned afterwards. 2. The prosecution argued that the only reasonable inference to be drawn from the Appellant's reaction and non-reaction was that she was aware of the presence of dangerous drugs in her suitcase. For the Appellant, it was argued that her reaction and non-reaction pointed to her belief that smuggled United States dollars were concealed in her suitcase. At no stage did the judge, when directing the jury on inferential reasoning, do so specifically in the context of the Appellant's reaction and non-reaction and the arguments thereon. The Court of Appeal found this omission surprising but, affirming the Appellant's conviction, held that the omission was not material in the circumstances. 3. Holding the omission to be, in the circumstances, so serious a departure from accepted norms as to constitute a substantial and grave injustice to the Appellant, the Court of Final Appeal allowed her appeal to quash her conviction and order her retrial. The Court of Final Appeal's judgment deals with inferential reasoning and how jurors should be directed on the proper approach to such reasoning. 
1. The Respondent shipped goods under bills of lading issued by the Appellant. The Respondent alleged that the cargoes were wrongly delivered and brought proceedings against the Appellant in PRC courts. 2. In response, the Appellant brought an action before the English court alleging that the Respondent had breached exclusive jurisdiction clause in the bills of lading. These clauses provided that any claims arising under the bills of lading should be subject to the jurisdiction of the English High Court. The Appellant successfully obtained an anti-suit injunction restraining the Respondent from suing the Appellant in any other jurisdictions. 3. The Respondent ignored the injunction and continued to pursue proceedings in the PRC. The Appellant commenced a second English action in relation to the further breaches of contract and obtained a worldwide freezing order against the Respondent. 4. In support of the English actions and the worldwide freezing order, the Appellant obtained orders in the Hong Kong court freezing the Respondent’s assets in Hong Kong and appointing receivers over those assets, under section 21M (“Section 21M”) of the High Court Ordinance, Cap 4 (“HCO”). These orders were subsequently discharged, by an order that was upheld by the Hong Kong Court of Appeal, on the ground that the relief was contrary to judicial comity in that it intervened in a jurisdictional conflict between the English and the PRC courts. The Respondent had also given an undertaking not to take any step to enforce any PRC judgment against the Appellant without obtaining its consent or court leave. 5. The Appellant succeeded in its English actions and was awarded damages in the amount of any damages that should be awarded to the Respondent by the PRC courts. This result was upheld by the English Court of Appeal. The Appellant was also successful in appealing most of the PRC court decisions. 6. The questions arising on the appeal are: First, what are the legal principles applicable on a Section 21M application? Second, is the principle of judicial comity necessarily engaged on the facts of this case, and if so how? Third, did the Court of Appeal correctly apply the general principles relating to anti-suit injunctions and comity? Fourth, did the Respondent’s undertaking provide sufficient protection so that the Appellant should have been declined relief in any event? 7. On the first question, the Court considered that Section 21M was introduced to make interim relief (such as freezing orders) available in support of proceedings that take place outside Hong Kong. At the first stage, the court has to consider whether, if the plaintiff succeeds in obtaining a judgment in the foreign court, it is one which the Hong Kong court will enforce under section 21N of HCO. If so, the court must then consider similar general questions to those that would arise if the relief had been sought in support of an action in the Hong Kong court, namely (i) whether there is a good arguable case (before the foreign court) and (ii) whether there is a real risk that the defendant will dissipate its Hong Kong assets. 8. The Court of Appeal had erred in holding that relief should not be granted unless the claimant could show that it would have had a good arguable case under the law of Hong Kong if the proceedings had been commenced in Hong Kong. 9. At the second stage the court has to consider whether it would be unjust or inconvenient to grant the application having regard to the fact that the court has no jurisdiction over the subject matter of the foreign proceedings. The court has a wide discretion to refuse to make the order sought. It is not appropriate to formulate a list of circumstances where it will be unjust or inconvenient. 10. In relation to the second and third questions, judicial comity should be taken into account in the second stage of considering whether interim relief should be granted. Where a defendant is in breach of an exclusive jurisdiction clause, the relief is directed not against the foreign court but against the individual defendant who is disregarding his contractual obligations. In such circumstances an anti-suit injunction in support of the exclusive jurisdiction clause does not infringe judicial comity. 11. Furthermore, the Hong Kong court was not asked to assist the English court to enforce an exclusive jurisdiction clause, but to enforce an award of damages by the English court for breach of such a clause. This did not involve a breach of comity. 12. The Appellant had established a good arguable case in the English proceedings, and the nature of those proceedings did not make it ‘unjust’ or ‘inconvenient’ to grant the relief sought. 13. Finally on the fourth question, the Respondent has not offered any explanation regarding the Appellant’s case that the PRC proceedings were fraudulent and based on forged documents. The Court of Appeal erred in holding that the undertaking provided the Appellant with adequate security. 14. Accordingly, the Court allowed the appeal. The freezing order was reinstated against the Respondent, in an amount to be assessed by the High Court. 
1. This appeal concerned the constitutionality of s.30A(10)(a) of the Bankruptcy Ordinance (Cap. 6) (“the Ordinance”), by virtue of which the relevant period for automatic discharge from bankruptcy shall, in the case of a person who has left Hong Kong before the commencement of the bankruptcy, not start to run until he returns to Hong Kong and notifies the trustee in bankruptcy of his return. 2. A bankruptcy order was made against the 1st Respondent on 20 December 2006. He was not in Hong Kong on the date the bankruptcy order was made. Although he subsequently visited Hong Kong on a number of occasions from 2006 to 2011, he did not notify the trustees of his return upon those visits. In May 2012, the 1st Respondent was arrested upon entering Hong Kong after he failed to attend an examination by his trustee in bankruptcy pursuant to s.29 of the Ordinance. 3. The 1st Respondent contended that s.30A(10)(a) was unconstitutional in that it contravened the constitutional freedom to travel and to enter and leave Hong Kong provided in Article 31 of the Basic Law (“BL 31”) and Article 8(2) of the Hong Kong Bill of Rights (“BOR 8(2)”) and therefore that the automatic period of discharge from bankruptcy had expired on 21 December 2010 before the time he failed to attend the s.29 examination. 4. The 1st Respondent’s contention failed in the Court of First Instance but succeeded in the Court of Appeal, which declared s.30A(10)(a) unconstitutional. The Appellant appealed, contending that s.30A(10)(a) was constitutional. 5. On the appeal, it was common ground between the parties that the right to travel in BL 31 and BOR 8(2) included the freedom to stay away from Hong Kong and that s.30A(10)(a) infringed the right to travel so understood. The Court therefore proceeded to determine the appeal on that assumption, although the Court noted that this might well be debatable and that the judgment should not be taken to settle the scope of the right to travel. 6. On this basis, the subsection could only be constitutional if it satisfied the proportionality test by which a statutory provision which infringes a constitutional right may nevertheless be held to be constitutional. As it was common ground between the parties that the restriction in question pursued a legitimate aim with which the restriction was rationally connected, the sole question for determination was whether the subsection was proportionate as being no more than necessary to accomplish that legitimate aim, namely to protect primarily the rights of creditors. 7. The Court concluded that s.30A(10)(a) did not satisfy the proportionality test. (1) In considering its constitutionality, s.30A(10)(a) operated as part of a coherent scheme under s.30A(10) regulating the running of time for the purposes of the period of automatic discharge from bankruptcy, with s.30A(10)(a) governing the position of absence from Hong Kong before the commencement of the bankruptcy and s.30A(10)(b) governing absence after its commencement. (2) The Court noted that s.30A(10)(a) applied automatically and without exception regardless of the circumstances that led to the bankrupt’s being absent from Hong Kong and unable to return; it applied regardless of whether the bankrupt was ready and willing to afford all co-operation to the trustee; and it did not vest in the court any discretion to disapply the sanction that arose by reason of the bankrupt’s absence from Hong Kong. (3) In Official Receiver & Trustee in Bankruptcy of Chan Wing Hing v Chan Wing Hing & Secretary for Justice (2006) 9 HKCFAR 545, the Court had earlier held (by a majority) that s.30A(10)(b)(i) of the Ordinance was unconstitutional as it constituted a disproportionate impairment of the right to travel. In the present case, it was common ground between the parties that the judgment of the majority in Chan Wing Hing was a correct statement of the law in respect of s.30A(10)(b)(i) and the Court was not invited to depart from that decision. (4) The Court held that there was no material distinction in the operation of s.30A(10)(a) and s.30A(10)(b)(i). In fact, the obligation imposed on a bankrupt under s.30A(10)(a) was a more onerous obligation than the mere notification requirement of s.30A(10)(b)(i) since it required the bankrupt physically to return to Hong Kong and notify the trustee. 8. Accordingly, the Court held s.30A(10)(a) to be unconstitutional and unanimously dismissed the appeal. 9. The Court noted that the Bankruptcy (Amendment) Bill 2015, presently before the legislature, envisages repeal of s.30A(10) and its replacement by a regime pursuant to which the trustee may apply to the court for a non-commencement order where the bankrupt fails to attend the initial interview or to provide the trustee with information requested. Since its proposed commencement date is 1 November 2016, it could have no effect on any bankruptcy order made before that date. 
1. On 11 June 2010, the Appellant (calling himself “Ghost Valley”) posted on the HKGolden website discussion forum the following message in Chinese: “We have to learn from the Jewish people and bomb the Liaison Office of the Central People’s Government # fire #” (English translation). It was one of a number of messages on the discussion forum related to proposals for political reform in Hong Kong. 2. The Appellant was charged with the offence of “committing an act outraging public decency”, contrary to common law. The common law offence requires that the act complained of be of such a lewd, obscene or disgusting character that it outrages minimum standards of public decency (the nature of the act element), and that the act be done in a place to which the public has access or in a place where what is done is capable of being seen by two or more persons who are actually present, even if they do not actually see it (the public element). The Appellant pleaded guilty before the Magistrate. On the sentence day, he applied for leave to reverse his plea to one of not guilty on the ground that the facts admitted did not support the charge. The Magistrate refused the application and sentenced the Appellant to 12 months’ probation. The Court of First Instance dismissed the Appellant’s appeal. The Appellant appealed to the Court of Final Appeal. 3. The Court unanimously allowed the Appellant’s appeal. It acknowledged that whether the internet was a public place for the purposes of the offence of outraging public decency was a novel issue. It held that the public element of the offence required the act to be committed in a physical, tangible place. The internet was not a place in any physical or actual sense. Readers of the message on the internet discussion forum might be in various places when they accessed or downloaded the webpage. They might have their sense of decency outraged in those actual places, but not in some virtual place. The internet was a medium and not a place for the purposes of the offence. Accordingly, the public element of the offence was not satisfied. 4. The Court pointed out that the effect of holding that the internet was not a place for the purposes of the offence did not mean that the offence could never be committed by a message posted to an internet discussion forum. It was possible for a message on an internet discussion forum to be seen in a physical place to which the public had access or where what was done was capable of public view. However, there was an absence of sufficient evidence in the present case as to whether that might have been the case. 5. As to the nature of the act element of the offence, the Court held that the nature and content of the message was such that it was open to the Magistrate to find that it was obscene or disgusting and such that it would outrage public decency. The message was a straightforward and unambiguous incitement to carry out an act of terrorism. That the incitement was to bomb an office of the State and was expressed together with a racist slur were aggravating features. 6. Finally, the Court expressed the view that there is a strong case for introducing statutory provisions to address the mischief of lewd, obscene and disgusting material posted on or communicated via the internet. 
1. The Plaintiff is a company which was wholly owned by Mr. Woods (now deceased). The Defendant is a Hong Kong based businessman. On various occasions, Mr. Woods caused funds to be transferred to a solicitors’ client account set up by the Defendant; such funds to be used only to purchase shares in a company called TSE for the Plaintiff. In 2004, the Defendant told Mr. Woods that using the money transferred to him, he had bought an additional 1,777,700 shares in TSE (the “Shares”) for the Plaintiff for £5,546,424.00 at the price of £3.11 per share. Mr. Woods later tried to regain control of the Shares in order to sell them to a Japanese company which was offering to buy them for £13.2005 per share. He failed to recover the Shares from the Defendant. In 2006, the Plaintiff discovered that the Defendant had made a number of unauthorized transfers out of the solicitor client account including the sum of £5,463,508.46 which the Defendant claimed had been used to buy the 1,777,700 shares mentioned above. 2. Accordingly, the Plaintiff sued the Defendant, claiming that the Defendant breached fiduciary duties owed to the Plaintiff by misappropriating the Plaintiff’s funds held in the solicitor client account (the “trust property”) and failing to purchase the Shares for the Plaintiff. Both the Court of First Instance and the Court of Appeal held in favour of the Plaintiff and ordered the Defendant to render an account of the trust property and to make an interim payment to the Plaintiff. They considered it unclear whether the Defendant actually bought the Shares. It was however accepted in the Court of Final Appeal by both sides that the Defendant had not in fact bought the 1,777,700 shares and that he had used the money extracted for his own unauthorised purposes. 3. The Court of Final Appeal confirmed the lower courts’ finding that the Defendant breached fiduciary duties owed to the Plaintiff, but concluded that it was not desirable or necessary to order an account to be taken. Instead, the Court made an order for equitable compensation requiring the Defendant to compensate the trust fund for the loss caused to it by the Defendant’s breach of his fiduciary duty. Such compensation is designed to restore the trust fund to the situation which it would have enjoyed if the Defendant had duly performed his fiduciary duty, using the funds entrusted to him to purchase the Shares. 4. The Court was entitled to assess the trust fund’s loss with “the full benefit of hindsight” and therefore took into account the fact that if he had duly carried out his duty, the Shares would have been acquired, that the Plaintiff would have been able to sell 42% of the Shares (746,634 shares) to the Japanese company, yielding a proceeds of £9,855,942.10 for the trust fund and the remaining 58% of the Shares (1,031,066 shares) could in due course have been sold. TSE had obtained a public listing on the London Stock Exchange in 2010 and the Court accepted that TSE shares’ quoted closing price on the date of the Court of First Instance’s judgment could be adopted to calculate the value of the remaining Shares (£8.84 x 1,031,066 = £9,114,623.44) for the purposes of equitable compensation. 5. Giving credit for the £4,823,768.51 already paid, the Court ordered the Defendant to pay to the Plaintiff (as representing the Plaintiff’s interest in the trust fund) £14,183,851.72 (£9,855,942.10 plus £9,114,623.44 plus £37,054.69 (representing other unauthorized withdrawals) minus £4,823,768.51) together with simple interest. 
The respondents were the providers, administrators and managers of a website which hosts one of the most popular internet discussion forums in Hong Kong. In three separate batches, in 2007, 2008 and 2009, defamatory statements were posted by users of that forum concerning the appellants who were the publishers of two popular daily newspapers, the group that owns those publishers, and the group’s chairman. The respondents were initially unaware of the 2007 and 2008 statements but removed them after complaints from the appellant. The 2007 statements were removed more than eight months after the complaints; and the 2008 statements, after three and a half hours. The respondents themselves discovered the 2009 statements about 12 hours after they had been posted and immediately took them down. The appellants’ actions against the respondents for libel were tried in the Court of First Instance before a Judge without a jury. The Judge awarded $100,000 in respect of 2007 statements but dismissed the appellants’ claims regarding both the 2008 and 2009 statements. The Court of Appeal upheld the Judge’s findings, holding that the respondents had innocently disseminated the 2008 and 2009 statements. The award in respect of the 2007 statements was not challenged by the respondents. The appellants’ appeal to the Court of Final Appeal was dismissed. The Court was asked to consider the extent to which the providers of an internet forum may be held liable for the posting of defamatory statements by its users. In particular, it had to decide whether, in law, such internet forum providers are to be regarded as “publishers” of such defamatory postings and whether the common law defence of innocent dissemination is applicable to them. The Court distinguished between the position of a “subordinate publisher” and that of an occupier of premises whose notice board or whose walls have been used by an unauthorised person to post up a defamatory statement. A subordinate publisher knowingly and actively participates in the dissemination of the article in question and to escape liability must show that he did not know, despite having taken all reasonable care, that the article contained libellous statements. The occupier in contrast plays no role in any scheme of distribution and merely has imposed on him the offending notice or graffiti. He cannot be held liable unless the libellous statement is allowed to remain in place in circumstances which justify the inference that he must have ratified the statement. The Court held that an internet forum provider is not like a notice board owner and not a first or main publisher, but qualifies as a subordinate publisher entitled to rely on the defence of innocent dissemination. The Court held that the respondents had established that defence in relation to the 2008 and 2009 statements. They did not know the content of each posting; did not authorize publication; did not exercise editorial or general control over the publication process; and so did not realistically have the ability or opportunity to prevent publication. After they came to know of the defamatory postings, they acted with reasonable care since they promptly removed them. 
1. The Appellant was born in Hong Kong on 1 December 1996. He is a Philippine national. Since birth, he has remained in Hong Kong on visitor conditions except for several short periods abroad. His mother is a Philippine national who has been working as a foreign domestic helper in Hong Kong since 1991. 2. On 20 December 2006, an application was made on behalf of the Appellant by his mother, when he was aged 10, for verification of his eligibility for a Permanent Identify Card with the view of establishing that he enjoyed the status of Hong Kong permanent resident and a right of abode. The application was refused by the Immigration Department. Subsequently, the Appellant applied to be issued with a juvenile Hong Kong Permanent Identity Card. The application was refused by the Commissioner of Registration. 3. The Court of Final Appeal looked at two issues: First, whether the Appellant had established that he had taken Hong Kong as his place of permanent residence. Second, whether he had satisfied the requirement of being ordinarily resident in Hong Kong for a period of not less than seven years. These were conditions that have to be satisfied under Article 24(2)(4) before persons not of Chinese nationality qualify for permanent residence. 4. The Court declined to revise its approach to claims under Article 24(2)(4) established in the earlier case of Prem Singh which it applied to the present case. 5. While the Court accepted that there may be rare cases where a 10 year-old child might be able independently to establish that he had taken Hong Kong as his place of permanent residence, in most such cases, a child’s permanent residence would follow that of his or her parents and or guardians on whom he depended for support. There was no evidence that any arrangements had been made by himself or on his behalf or for his benefit to establish Hong Kong as his place of permanent residence. 6. Regarding the second issue, the Appellant contended that under the relevant regulations he was qualified to “obtain” a Hong Kong Identity Card. Therefore, relying on Gurung Kesh Bahadur,he should be entitled to enjoy the rights of freedom to travel as guaranteed under Article 31 of the Basic Law. As such, section 11(10) of the Immigration Ordinance does not affect him and interrupt the continuity of his ordinary residence in Hong Kong. 7. However the Court held the applicable regulations did not qualify as a right to “obtain” a Hong Kong Identity Card, but merely a right to “apply” for one. Therefore, the Appellant’s absences during the seven-year period immediately before his application for verification had prevented him from being continuously ordinarily resident in Hong Kong during that period by reason of section 11(10) of the Immigration Ordinance which meant that his previous permission to land or remain in Hong Kong expired on each departure, requiring fresh permission to be obtained each time he returned. Hence, the Appeal on the second issue failed. 8. The Court left open the question whether the appellant’s permission to remain in Hong Kong as a visitor necessarily meant that he could not build up ordinary residence here, notwithstanding numerous visa extensions spanning many years. 
1. German customs officers intercepted three postal parcels en route from Bolivia to Hong Kong and found cocaine in them. Hong Kong customs officers carried out a controlled delivery operation of one of the parcels and arrested one Tang Kwong Ho (“Tang”) who received the parcel. The appellant was also arrested nearby. Certain items were seized from the appellant which associated him with Tang and the three parcels. 2. The appellant was charged with one count of conspiracy with Tang, a person called “Ko Lo” and other persons unknown to traffic in a dangerous drug, namely cocaine. The appellant pleaded not guilty. At trial, the appellant maintained that he was asked by “Ko Lo” to receive the parcels. He did not know that the parcels contained dangerous drugs. 3. The trial judge directed the jury that the prosecution only needed to prove that the appellant knew the parcels contained a dangerous drug and that the prosecution did not need to prove knowledge of the type of drug. 4. The jury unanimously found the appellant guilty. The trial judge sentenced him to 29 years’ imprisonment. The Court of Appeal dismissed the appellant’s application for leave to appeal against his conviction. The appellant further appealed to this Court. THE ISSUE 5. The appellant argued that the trial judge’s direction that the prosecution did not need to prove knowledge of the particular type of drug was wrong. He contended that the fact that the substance being trafficked in is the dangerous drug as particularised in the indictment is a fact necessary for the commission of the substantive offence of trafficking in a dangerous drug. Section 159A(2) of the Crimes Ordinance (Cap.200) requires the prosecution to prove that a defendant charged with conspiracy had knowledge of this fact (the “Statutory Construction Argument”). 6. The appellant further argued that English, Canadian and Australian cases established a general common law principle such that the prosecution must prove that a defendant charged with conspiracy had knowledge of the type of drug being trafficked in (the “Common Law Argument”). The Statutory Construction Argument 7. Section 4 of the Dangerous Drugs Ordinance (Cap.134) created the offence of trafficking in a dangerous drug. The particular type of dangerous drug is not an essential element of the offence. The prosecution is only required to prove that the defendant trafficked in a dangerous drug. For the mental element, the prosecution must prove that the defendant knew he was trafficking in a dangerous drug. It is not necessary to prove knowledge of a particular type of dangerous drug. 8. Section 159A(1) of the Crimes Ordinance provides for the statutory offence of conspiracy. Under section 159A(2), the prosecution must prove that a defendant charged with conspiracy knew or intended that a fact or circumstance necessary for the commission of the substantive offence will exist where the substantive offence has a mental element less than knowledge or intention, such as recklessness or negligence. As a result, a defendant charged with conspiracy would not be found guilty unless he intended to carry out the substantive offence. 9. The substantive offence of trafficking in a dangerous drug does not have a lesser mental element than knowledge. The only fact or circumstance necessary for the commission of trafficking in a dangerous drug is that a dangerous drug, rather than a particular type of dangerous drug, will be trafficked in. Section 159A(2) therefore does not operate to require the prosecution to prove any additional mental element. The Common Law Argument 10. The English, Canadian and Australian cases do not establish any general common law principle as the appellant contended. DISPOSITION 11. Accordingly, the Court unanimously dismissed the appeal. 
1. This appeal arose out of a prosecution for the offence of obtaining access to a computer with a view to dishonest gain for oneself or for another under s.161(1)(c) of the Crimes Ordinance (Cap.200) (“the CO”). 2. Primary school teachers and a friend who used phones and a computer to transmit to third parties questions to be used in competitive admission interviews were charged with the offence. There were limited places for admission to the primary school in question. Children applying for admission were interviewed for selection. The 1st to 3rd Respondents (“R1”, “R2”, “R3”) were teachers at the primary school, while the 4th Respondent (“R4”) was a teacher at another primary school and also a former classmate of R2. 3. At a briefing session held the day before the interviews, in which R1-3 all participated, each teacher was provided with a set of interview questions and the marking scheme, which were returned to the teacher in charge after the briefing. During the briefing, R1 took photographs of the interview questions with her mobile phone and sent them to a fellow member of her church via Whatsapp. R2 took photographs of the interview questions with her mobile phone and sent them to R3. R3 was late to the briefing and received four images of the interview questions from R2 via her mobile phone. She later used a desktop computer at the primary school to type out the interview questions in a Word file which she then emailed to R2 and another friend. R4 received the Word file from R2 through email, took photographs of the Word file with her mobile phone, and sent them to two friends via Whatsapp. 4. All four Respondents were charged with obtaining access to a computer with a view to dishonest gain for another, contrary to s.161(1)(c) of the CO, the intended benefit being the enhanced chances of success enjoyed by the relevant parents and children at the interview. The Magistrate found that there was reasonable doubt as to whether the Respondents had been reminded of the need for confidentiality, and that the prosecution had failed to prove that a reasonable person would consider the Respondents’ acts dishonest. She therefore acquitted all Respondents and maintained that decision on a review hearing. 5. On appeal by way of case stated to the Court of First Instance, the Judge questioned whether the Respondents’ acts amounted to obtaining access to a computer under s.161(1)(c). The Appellant argued for a wide construction of the scope of the offence but the Judge rejected that argument and held that the prosecution had to prove the unauthorised extraction and use of information from a computer. As none of the Respondents’ acts amounted to that, the Judge held that the relevant offence had not been committed, and dismissed the appeal. 6. The Appellant brought a further appeal to the Court of Final Appeal against the decision of the Court of First Instance. ISSUES 7. The central question in this appeal was one of statutory construction, namely whether the offence created by s.161(1)(c) of the CO covers the use by a person of their own computer with the requisite intent. Given the absence of any evidence of a limit on R3’s authority to use the relevant desktop computer, the Appellant conceded that for the purposes of this appeal the school computer could be treated as though it was her own. This concession was limited to this appeal and does not create a precedent for future cases involving the use by a person of a computer allocated to them by their employer. 8. The Court applied the well-established principles of statutory construction by looking to (1) the text of the provision to be construed, (2) its context, and (3) its purpose. 9. The text of the provision, including the words “obtain” and “access”, suggested an unauthorised use of a computer, and did not sit easily with the use by a person of their own device. 10. The context included the amendments to a number of statutes made by the Computer Crimes Ordinance No 23 of 1993 (the “CCO”), which created new offences and broadened the range of existing offences. The other provisions enacted by the CCO appear to define the offences by reference to access to or misuse of a computer other than the offender’s own computer. 11. The purpose of the provision can be seen clearly from the Legislative Council Brief, which was to create a new offence of dishonest accessing, making it unlawful to “gain access to computers” with the relevant intent. 12. All in all, the text, context, and purpose in this case pointed towards construing s.161(1)(c) of the CO so that it does not extend to the use of the offender’s own computer. 13. The Appellant’s other argument that a wider construction of the provision would secure a beneficial public policy was rejected, as this is not the function of the court in statutory construction. The court ascertains the purpose of the statute to inform its construction, and does not identify a beneficial purpose and construe the statute to fit it. DISPOSITION 14. The Court therefore concluded that s.161(1)(c) of the CO, on its proper construction, does not apply to the use by a person of his own computer, not involving access to another’s computer. Accordingly, the appeal was unanimously dismissed against all of the Respondents. 
1. The plaintiff’s claim for slander and malicious falsehood against the defendant is satellite litigation arising out of the high-profile probate action relating to the vast estate of Nina Wang the hearing of which began in May 2009. 2. In the probate action, Tony Chan claimed that Nina Wang had made a new will in 2006, displacing Chinachem Charitable Foundation Limited (“Chinachem”), the major beneficiary of the estate in her earlier will made in 2002. Tony Chan was subsequently tried, convicted and imprisoned for forgery. 3. The defendant once was a friend of Gilbert Leung (“Mr Leung”) with whom she had cohabited for three years. Mr Leung was to give evidence for Chinachem and the defendant offered to act “as middleman” between Dr Siu, another friend of hers, and Tony Chan’s legal team in the probate action, principally Mr Jonathan Midgley and Mr Ian Mill QC, with a view to providing information aimed at discrediting Mr Leung. The information involved documents concerning a land transaction between Mr Leung and Chinachem which might be used in cross-examination to suggest that Mr Leung had received a substantial financial benefit from Chinachem and was not an impartial or reliable witness. Initial demands for payment to be able to use the documents were refused. But when Mr Leung was being cross-examined at the trial, the defendant informed Tony Chan’s legal team that the source of the documents agreed that they could be used on the understanding that if Tony Chan were to win, the source would be rewarded. 4. Anticipating that the Judge would ask about their provenance, Mr Mill, through Mr Midgley, asked the defendant in a telephone call just before resumption of the hearing, who was the source of the documents and, the Recorder found, the defendant named the plaintiff “Edmund Tsang” as the source. That information was then conveyed by Mr Mill to the Judge in open court in reply to the Judge’s question. It is not disputed that the defendant’s statement was false and that the plaintiff was not the source of the documents. He claimed that his reputation was seriously injured by the defendant’s false statement and the publicity given to it by press reports. He sued her for slander and malicious falsehood. The plaintiff alleged that such reputational injury would flow from the fact that he had had business dealings with Mr Leung so that people would regard his alleged act of supplying information to be used against Mr Leung as an act of betrayal, as helping Tony Chan pursue an unmeritorious claim and as an act done with a disreputable mercenary motive. 5. What Mr Mill said in open court and the press reports which fairly and accurately repeated what was said in open court were undoubtedly covered by absolute privilege so that the plaintiff could not mount a claim relying on such publications. The question was whether such absolute privilege also protected the defendant from liability. 6. The majority of the Court (Mr Justice Tang PJ dissenting) found that as a matter of law, the defendant’s statement to Mr Mill and Mr Midgley was not covered by absolute privilege. 7. However, the Court found that the reputational damage the plaintiff alleged he had suffered depended on the persons to whom the defendant’s statement was published having knowledge of facts which would lead them to understand the defendant’s statement as carrying the innuendo meanings regarding betrayal, assisting an unmeritorious action and seeking to profit from doing this, mentioned above. The Court unanimously held that such facts were neither properly alleged nor proved by the plaintiff, so that the innuendo meanings were not established. The slander claim therefore failed. 8. The Court was also unanimous in holding that the plaintiff’s alternative claim for malicious falsehood failed because he was unable to establish that the losses which he sought to recover represented special damage flowing from the defendant’s false statement, an essential requirement of the law. However, Tang PJ also rejected the malicious falsehood claim on the basis that the claimed damages could not be recovered for the same reasons of policy as those justifying the extension of the defence of absolute privilege. 9. The Court unanimously allowed the appeal of the defendant (FACV 2 of 2018), and dismissed the appeal of plaintiff (FACV 3 of 2018). 
1. The appellant is a registered medical practitioner and was indicted for gross negligence manslaughter (“GNM”). The prosecution alleged that she had administered to her patients a highly contaminated blood product, causing the patient’s death. As the jury was unable to reach a verdict at her first trial, a retrial (which has yet to take place) was ordered. 2. This appeal arises out of a ruling by Barnes J regarding the essential elements of the offence of GNM in determining a preliminary issue for the purposes of the retrial. It involves as a question of law, what the prosecution must prove to establish that the death of the deceased was caused by “gross negligence” on the part of the accused, and in particular, whether such negligence can be proved by applying an objective “reasonable man” test or whether the prosecution must prove that the accused was subjectively aware of an obvious and serious risk of death to the deceased. 3. Barnes J held that the prosecution must prove subjective awareness on the defendant’s part but her decision was reversed by the Court of Appeal. 4. On appeal before the Court of Final Appeal, the appellant made two main arguments in support of the proposition that under the law in Hong Kong subjective awareness must be proved. First, it was argued that the definition of the offence of GNM based on an objective standard of negligence is objectionably “circular” in that the jury are left to define for themselves whether an offence has been committed rather than being given proper guidance by the court. Secondly, it was contended that it is unacceptable in principle and contrary to case authority that liability for an offence as serious as manslaughter should rest on an objective test rather than on proof of the accused’s subjective awareness of the risk of causing death as reflecting the necessary culpability to justify conviction for manslaughter. 5. The Court rejected the circularity argument, holding that the objective test is not circular but is one which requires the jury to determine the facts regarding the accused’s conduct and to evaluate, in all the circumstances of the case, to what (if any) degree such conduct fell short of the required objective standard, such an evaluative task often being allocated to the jury, applying community standards. The court directs the jury that they can only convict if they find that there was a very high degree of negligence on the part of the defendant. 6. The Court also rejected the argument that guilt established on an objective standard did not reflect a sufficient finding of culpability. It emphasised that the offence of GNM requires proof that the accused owed a duty of care to the deceased, that such duty was breached, causing the death of the deceased when, in all the circumstances, the defendant’s conduct fell so far short of what could reasonably be expected of him or her that such conduct could properly be characterised as grossly negligent. The Court held that such conduct is justifiably treated as highly culpable and deserving of being castigated as manslaughter. 7. The Court considered various decided cases cited by the appellant and held that, properly understood, they did not support the appellant’s proposition that subjective awareness of an obvious risk of death had to be established for the offence of GNM. 8. Accordingly, the Court dismissed the appeal holding that gross negligence is proved by application of the objective standard of reasonableness, there being no additional requirement that the prosecution must also prove that the defendant was subjectively aware of an obvious and serious risk of death to the deceased. Such awareness, if proved, is relevant to liability but not a necessary ingredient of the offence. 
1. The appellant, a triad member, along with his fellow gang members received an order from their triad boss to locate and “chop” members of a rival faction. They armed themselves with weapons and set off in two cars to search for their rivals. Having heard that gang members in the other car had located the intended victims, those in the appellant’s car immediately drove to the scene to help. When the appellant arrived at the scene, the deceased was already lying on the ground after having been attacked by four or five persons with knives and also run over by a car. There was no evidence that the appellant had been present during the attack on the deceased or that he had himself done any act which caused injury or death of the deceased. 2. The appellant was convicted of murder, based on his active participation in a joint criminal enterprise, meaning an agreement with others to chop the followers of the rival faction with intent to cause them grievous bodily harm. The appellant’s conviction was upheld by the Court of Appeal which also held that his conduct constituted encouragement to the others in the gang, including the actual killers. 3. The present appeal concerns the principles for finding a person guilty as a participant in another person’s crime. The issue is whether the doctrine of joint criminal enterprise, treated in Hong Kong as supplying such a principle as laid down in the 1985 decision in Chan Wing Siu v R, should continue to be applied in the light of the decision of the United Kingdom Supreme Court in R v Jogee and R v Ruddock disapproving Chan Wing Siu. The UK Supreme Court held that Chan Wing Siu was wrongly decided and that the doctrine of joint enterprise should be abolished so that criminal liability for participation in another person’s offence should only be established applying a different set of principles involving aiding, abetting, counselling or procuring that other person’s crime. 4. The Court respectfully disagrees with Jogee for three reasons. First, it does not accept that the joint criminal enterprise doctrine over-extends the accomplice’s liability. It considers that persons who participate in a criminal joint venture foreseeing that in the course of carrying it out, one of the joint venturers might commit a more serious offence (such as murder) and proceeds with the joint venture with such foresight should be treated as gravely culpable and held liable as an accomplice. Secondly, the Court considers abolition of the joint criminal enterprise doctrine to leave a serious gap in the law of criminal complicity depriving it of valuable principles for dealing with evidentially unclear and fluid situations arising in relation to crimes committed by more than one person. Thirdly, it considers that the concept of “conditional intent” introduced in the Jogee decision causes conceptual and practical difficulties. 5. The Court therefore concludes that Jogee should not be adopted and that the joint criminal enterprise doctrine as expounded in Chan Wing Siu continues to apply in Hong Kong. 6. The appellant’s guilt was properly established both on principles of accessorial and joint criminal enterprise liability. Accordingly, the Court dismissed the appeal. 
1. The tax returns of Nam Tai Trading Company Limited (“NT Trading”) for the years 1996/97, 1997/98 and 1999/2000 (the “Returns”) were found by the Inland Revenue Department to be incorrect. The Respondents were directors of NT Trading at the time. Mr Koo signed the first and third of those returns, and Mr Murakami signed the second. NT Trading’s attempts to challenge the Inland Revenue Department’s assessments were unsuccessful. It did not pay the amounts assessed and, in 2012, was wound up by the court on the Appellant’s petition. 2. In 2013, the Respondents were assessed to additional tax under section 82A(1)(a) of the Inland Revenue Ordinance (Cap. 112) (the “Ordinance”) on the basis that the Returns were incorrect. At the relevant time, section 82A(1)(a) provided: “(1) Any person who without reasonable excuse— (a) makes an incorrect return by omitting or understating anything in respect of which he is required by this Ordinance to make a return, either on his behalf or on behalf of another person or a partnership… shall… be liable to be assessed under this section to additional tax…” 3. The Respondents successfully appealed to the Court of First Instance against the assessments of additional tax. The Judge found that the Returns were required to be made, and were made, by NT Trading, not the Respondents. Thus, the Respondents could not be liable for additional tax under section 82A(1)(a). The Judge’s finding was upheld by the Court of Appeal. Were the Respondents “required” to make the Returns? 4. The Court observed that the requirement to make a return results from a written notice being given under section 51(1) of the Ordinance. Notices are given to the person who is required to “furnish” a return. In the present case, the notices were addressed to NT Trading, and no reference was made to either Mr Koo or Mr Murakami. 5. The Appellant argued that, although NT Trading was primarily required to make the Returns, the Respondents were also required to do so because they, as its principal officers, were “answerable” under section 57(1) of the Ordinance for doing the acts which were required to be done by NT Trading. 6. The Court rejected the Appellant’s argument. The Court observed that the obligation under section 57(1) falls on all the members of the class to which it refers. There is nothing which singles out Mr Koo or Mr Murakami as subject to the requirement to make NT Trading’s returns. Additionally, the language of answerability does not, in terms, impose a legal obligation to do anything. Section 57(1)’s purpose is to facilitate the exercise of the Appellant’s functions in relation to companies. Furthermore, there are provisions in the Ordinance that expressly impose a requirement on certain persons to do acts (including the making of returns) on behalf of others. Thus, there is a distinction between a responsibility to ensure that a company makes a return, and an obligation to make a return on a company’s behalf. Section 57(1) falls within the former category and does not have the effect of requiring the Returns to be made by the Respondents on behalf of NT Trading. Disposition 7. Accordingly, the Court unanimously dismissed the appeal. 
1. By a generally endorsed writ issued in 2011, Greater Beijing Region Expressways Limited (“GBRE”) claimed damages against the appellants for professional negligence. 2. In 2012, GBRE purported to assign its causes of action against the appellants (the “Assignment”) to Beijing Tong Gang Da Sheng Trade Co., Ltd (“Beijing Tong Gang”). The writ, which had not been served, was then amended such that Beijing Tong Gang became the plaintiff (the “Plaintiff”) in place of GBRE which ceased to be a party. 3. In 2013, the appellants sought to strike out the Plaintiff’s claim on the ground that the Assignment was champertous and void (“the strike out application”). In response, the Plaintiff sought to add GBRE as a plaintiff (“the joinder application”) as GBRE would have been met with a successful limitation defence were it to issue a new writ by that time. 4. Before the lower courts, the appellants were successful in the strike out application. However, the Court of Appeal allowed the joinder application on the basis that no issue of limitation arose since it did not involve a new cause of action. 5. The issues on appeal are as follows: (1) whether the joinder application is caught by limitation (“Issue of Limitation”); and (2) if so, whether leave should be granted under Order 20 rule 5(3) of The Rules of the High Court, Cap 4A to permit joinder (“Issue of Mistake”). Issue of Limitation 6. The Court held that an application to add or substitute a party would result in a ‘new claim’ as defined in section 35(2) of the Limitation Ordinance, Cap 347 (“LO”). If the application is made after the expiration of the limitation period current at the time of the commencement of the action, it must come within rules of court as required under section 35(3) and (5) of LO. 7. The Court of Appeal was thus wrong to conclude that because no new cause of action was involved in the joinder application, the limitation provisions of section 35 of LO did not apply. 8. The fact that GBRE was once a party does not make any difference, as it had ceased to be a party altogether as a result of the amendment in 2012. GBRE was as much a new party as if the original writ was issued in the Plaintiff’s name after the impugned Assignment, and the issue of limitation arose on the joinder application. Issue of Mistake 9. As for the Respondent’s alternative submission on a genuine mistake under Order 20 rule 5(3), the authorities clearly show that the mistake has to be a mistake as to the name rather than the identity of the party or as to legal rights. 10. There was no mistake in the relevant sense here, as the Plaintiff wished to sue as the assignee, sued as such and was correctly named. The mistake was in the belief that the Assignment was valid and effective, and Order 20 rule 5(3) does not apply. CONCURRING JUDGMENT OF LORD HOFFMANN NPJ: 11. Lord Hoffmann NPJ took the view that a case within Order 15 rule 7, where a new party succeeds to the interest of an existing party, falls outside section 35 of LO. Whether this is because, as a matter of construction of section 35 of LO, it falls outside the definition of a new claim or whether it is a sanctioned exception, does not seem to matter. 12. Either way, the power of the court under Order 15 rule 7 can be exercised whether the limitation period has expired or not. However, Lord Hoffmann NPJ observed that this does not extend to the substitution of a new party outside Order 15 rule 7, which is the case in the present action. 
1. On 16 December 2015, the Appellant was stopped and searched by the police in Admiralty Centre. He was found to be carrying in his backpack 16 “smoke cakes”. The “smoke cakes” were a pyrotechnic substance which emit smoke when ignited, but do not produce an explosion. 2. The Appellant was charged with and convicted by Deputy Magistrate Jacky Ip (the “Deputy Magistrate”) after trial of the offence of possession of an explosive substance under section 55 of the Crimes Ordinance (Cap 200) (“CO”). Albert Wong J of the Court of First Instance dismissed the appeal against conviction. The Appellant appealed to this Court. 3. “Explosive substance” is not defined in the CO. The issue was whether the definition in section 2 of the Dangerous Goods Ordinance (Cap 295) (“DGO”), that “explosive” includes “any substance used or manufactured with a view to producing a practical effect by explosion or a pyrotechnic effect”, was applicable, as the Deputy Magistrate and Albert Wong J held. 4. The Appellant argued that the definition in section 2 of the DGO is not applicable. “Explosive” in section 55 of the CO should be given its ordinary and natural meaning and only refers to a substance which can produce an explosion. He contended that, firstly, although the DGO and the relevant provisions of the CO were modelled on legislations in the United Kingdom (“UK”), and the English Court of Appeal held that an explosive included a pyrotechnic substance under the UK provisions, the legislative history in Hong Kong was different. Secondly, the DGO is regulatory in nature, while the relevant part of the CO is penal. Thirdly, since the offence under section 55 of the CO carries a heavy penalty, any doubt should be resolved in favour of the Appellant. 5. It is an established principle of statutory interpretation that when 2 or more statutes deal with the same subject matter on similar lines, they should be construed as a single code. The Court noted the differences in legislative histories in Hong Kong and the UK, but emphasised that what matters is not so much the sequence of the enactment of the legislation as the content or substance of the legislation. The DGO and the relevant provisions of the CO both cover, regulate and control the manufacture, possession, custody or use of explosive substances. The fact that one Ordinance is regulatory and the other penal in nature does not mean that they do not deal with the same subject matter on similar lines. Rather, it only means that they form different parts of a complete code covering, regulating and controlling the manufacture, possession, custody or use of explosive substances in Hong Kong. Since it is reasonable to assume that there is continuity of legislative approach and uniformity in the use of language, the definition of “explosive” in section 2 of the DGO applies, so that the word bears the same meaning in the DGO and the CO. DISPOSITION: 6. Accordingly, the Court unanimously dismissed the appeal. 
1. The Deceased died intestate in 1985. In 2012, Li Cheong (“the Plaintiff”) commenced a probate action (“the 2012 Action”) against Lee Kwai Tai also known as Li Kwai Tai (“LKT”). The Plaintiff claimed that the Deceased died leaving no wife, no issue and no surviving parents and that he was a nephew of the Deceased. LKT counterclaimed to be the only daughter of the Deceased and the only beneficiary of the estate of the Deceased. LKT had since passed away and her estate was represented by her adopted daughter Chan Tsui Shan. 2. In September 2015, Li Soo Tan also known as Lee Soo Tan Doreen (“DL”) filed a caveat and claimed to be the only daughter of the Deceased and the only beneficiary of the estate of the Deceased. In March 2016, LKT’s solicitors served a notice of action on DL’s solicitors under Order 15, rule 13A of the Rules of the High Court (Cap. 4A). DL did not acknowledge service in the 2012 Action, but commenced another probate action against the Plaintiff and LKT in May 2016 (“the 2016 Action”). At the trial of the 2012 Action in June 2016, the Plaintiff was absent. Deputy High Court Judge Yee (“the Deputy Judge”) gave judgment for LKT on her counterclaim (“the Judgment in the 2012 Action”), which was binding on DL by reason of Order 15, rule 13A(4). 3. In April 2017, DL applied for extension of time to acknowledge service and to apply to set aside the Judgment in the 2012 Action. The Deputy Judge ruled that the notice of action was validly served on DL’s solicitors, and there was inexcusable delay on DL’s part in applying to set aside the Judgment. However, the Deputy Judge exercised his discretion and granted DL’s application to extend time on the grounds that during the trial, he had, in ignorance of the effect of Order 15, rule 13A(4), expressly indicated that the Judgment in the 2012 Action was not intended to be binding on DL, that documentary evidence showed that DL had a bona fide claim, and that little delay would be caused to LKT because she would have to deal with the 2016 Action in any event. 4. The Court of Appeal held that the Deputy Judge erred in his exercise of discretion. First, the Deputy Judge’s intention that the Judgment in the 2012 Action was not to be binding on DL was irrelevant and was legally incorrect. Second, the Deputy Judge overlooked the true extent of DL’s default and the prejudice to LKT. DL not only failed to acknowledge service, but failed to apply to join as a party to the 2012 Action even though she was well aware of its existence since September 2015. The Court of Appeal exercised the discretion afresh and dismissed DL’s application. 5. DL appealed to this Court. She argued that there were no grounds for the Court of Appeal to set aside the Deputy Judge’s exercise of discretion. 6. Mr Justice Fok PJ, with whom Mr Justice Ribeiro PJ, Mr Justice Cheung PJ and Mr Justice Spigelman NPJ agreed, held that the Court of Appeal was correct in holding that the Deputy Judge’s exercise of discretion was vitiated by error. In addition, the Deputy Judge erred in stating that little further delay would be caused to LKT, since the 2016 Action stood to be disposed of summarily as an abuse of process. 7. Mr Justice Tang NPJ held that the Deputy Judge was entitled to take into account his intention when giving the Judgment in the 2012 Action, and to decide that DL’s delay and the prejudice to LKT were counter-balanced by the factor that DL had a bona fide claim. However, the Deputy Judge erred in considering that little further delay would be caused to LKT. The Court of Appeal was therefore entitled to set aside his exercise of discretion. DISPOSITION: 8. Accordingly, for these reasons, this Court unanimously dismissed DL’s appeal. 
1. This was an appeal against the conviction of Cheng Chee-Tock, Theodore (“Cheng”, deceased) for conspiracy to defraud. The Appellant, Cheng’s widow, was permitted by the Court to carry on the appeal in her capacity as Cheng’s personal representative. 2. Cheng was Chairman of CY Foundation Group Ltd. (“CYF”), a listed company in Hong Kong. He was also the Chairman, Chief Executive Officer and controlling shareholder of an Australian listed company called Sino Strategic International Ltd. (“SSI”). China Entertainment Holdings Ltd. (“CEH”) was a wholly-owned subsidiary of SSI which held all the shares of Sino Joy Holdings Ltd. (“Sino Joy”) which owned a property in Wan Chai (“the Property”). 3. A succession of disposals of the Property took place by transfers of shares in the companies which held the Property, first from CEH to a company owned by Kenny Nam, a named co-conspirator who was deceased at the date of the trial, then onwards to a company owned by Chong Ching-lai and finally by that company to a company called Highsharp Investments Ltd. (“Highsharp”) which was a wholly-owned subsidiary of CYF. 4. The prosecution alleged that Highsharp’s acquisition was a “connected transaction” which, under the Stock Exchange’s Listing Rules, required disclosures and authorizing resolutions by independent shareholders and that Cheng had conspired with others to defraud the shareholders of CYF by dishonestly concealing Cheng’s beneficial or financial interest in the Property; and thus concealing and falsely representing to CYF that the acquisition was not a connected transaction. 5. To be a connected transaction, CYF’s acquisition had to be between its subsidiary Highsharp and a connected person, that is, a director, chief executive or substantial shareholder of CYF. If that acquisition could not be shown to have been a connected transaction, there would not have been any conspiracy to defraud since there would have been no question of any concealment or misrepresentation. 6. The Court held that various approaches adopted by the Courts below and by the prosecution with a view to establishing that CYF’s acquisition was a connected transaction between Highsharp and Cheng (who was a “connected person”, being a director of CYF) were untenable. Cheng did not have either a beneficial or financial interest in the Property when it was transferred to Highsharp and the relevant Listing Rule could not be read so expansively as to deem the transaction to be between Highsharp (or CYF) and Cheng (even though, on the prosecution’s case, CYF acquired the Property from SSI). There was accordingly no basis for finding a conspiracy to defraud and the appeal was allowed. Concurring judgment of Mr Justice Spigelman NPJ: 7. It should be recognized that the word “transaction” is one of wide import which is capable of encompassing a series of inter-related steps. However, the transaction between SSI and CYF fails to qualify as a connected transaction because SSI was not a connected person. 
1. The claim of the Appellant, CIR, relates to the aviation fuel service system at Chep Lap Kok (the “Facility”). It is brought against the Respondent, AFSC, a franchisee who entered into a Franchise Agreement with the Airport Authority (the “Authority”) to develop the Facility. 2. On 11 February 2009, CIR issued a profits tax assessment determination (the “Determination”) which confirmed the profits tax assessment for the year of assessment 2003/04 charging AFSC to profit tax of US$449,043,000 (the “Sum”). The Sum was received by AFSC from the Authority under the Franchise Agreement as an accelerated payment upon the Authority taking over the Facility. 3. The key issue at the Court of First Instance (the “CFI”) was whether the Sum was capital or income. The CFI held that it was capital and not chargeable to profits tax. The Court of Appeal (the “CA”) upheld its decision. 4. CIR then raised a new issue in the CA: he argued that if the decision of the CFI was affirmed, the assessment should be revised to take into account capital allowances which AFSC had claimed so that balancing charges should be imposed (the “new issue”). 5. Despite AFSC’s objection, the CA allowed CIR to raise the new issue but then dismissed the argument on the merits. 6. On the appeal to the Court, the CIR no longer sought to argue that the Sum was income. The two issues for the Court of Final Appeal were: First, whether CIR should have been allowed to raise the question of a balancing charge in the CA, it never having previously been raised? Second, should receipt of the Sum attract balancing charges? 7. Regarding the first issue, section 67(7)(b) of the Inland Revenue Ordinance (“IRO”) empowers the court to make any assessment which CIR had power to make and thereby confers a discretion. The key question was whether it was fair for the CA to entertain CIR’s submission that AFSC should be assessed on the basis of a balancing charge in the present circumstances. The Court took into account two factors: (1) whether it would be unfair to exercise the power to make an assessment on a different basis after the expiry of the six-year limitation period stipulated under section 60(1) of IRO aimed at protecting the taxpayer from having to investigate transactions that have receded more than six years into the past; (2) whether the new basis would require further investigation of the facts. Since both factors are interlinked, the Court held that it would be unfair to deprive AFSC of the limitation period’s protection since the new basis would require extensive further investigation and fact finding. The Court dismissed the appeal in light of this procedural issue. 8. The Court found that it is unnecessary to decide the second issue. The CIR however had invited the Court to give guidance on one aspect of the CA’s decision concerning the proper interpretation of section 39B(7) which concerns the treatment of capital allowances where a person succeeds to a business and relevant plant and machinery passes to him otherwise than by way of sale. Such guidance was provided in the light of the facts of the present case. 
By a provisional agreement for sale and purchase, the purchaser agreed to buy from the vendor the ground floor of Block C, Nos. 301, 301A-C, Prince Edward Road West, Kowloon for $18 million.An initial deposit of $500,000 was paid pursuant to Clause 2(a). By clause 2(c) a further deposit of $3.1 million was to be paid “upon signing of the Formal Agreement for Sale and Purchase on or before 13 January 2010”. Clause 7, as translated from the Chinese version[1], provides as follows: Should the vendor after receiving the deposit (deposits) paid fail to complete the sale in the manner contained in the agreement, the vendor “apart from refunding the total amount of the deposit paid, (shall) compensate the purchaser by a payment of an equivalent amount”. On 12 January 2010, the vendor’s solicitors sent to the purchaser’s solicitors a re-engrossed formal agreement in duplicate and asked that it be duly signed by the purchaser and attested, and returned together with the purchaser’s solicitors’ cheque for $3.1 million on or before 5:00 pm on 13 January 2010. On 13 January 2010, the purchaser’s solicitors forwarded the formal agreement duly signed and attested, together with a cheque for $3.1 million drawn in favour of the vendor’s solicitors “as stakeholder being further deposit and part payment of purchase money…” The cheque for $3.1 million was tendered on condition that the vendor would sign the formal agreement and its solicitors would return it to the purchaser’s solicitors within 3 working days. The cheque for $3.1 million in the vendor’s solicitors’ hands was cashed on 14 January 2010. However, no formal agreement bearing the attested signature of the vendor was returned. On 10 February 2010, the vendor’s solicitors sought to rely on clause 7 of the provisional agreement to escape further performance by enclosing (1) a refund cheque for $3.1 million and (2) a cheque for 1 million. The purchaser brought proceedings seeking an order for specific performance. The crucial question is whether the further deposit of $3.1 million was paid to and accepted by the vendor. If it was, then the vendor could only escape from performance if it paid the amount of the further deposit (and the initial deposit) in compensation in terms of clause 7. The Court of First Instance made an order for specific performance as it found that the further deposit was paid to and accepted by the vendor. The Court of Appeal discharged the Court of First Instance’s order for specific performance as it found that the further deposit had not been paid. The Court of Final Appeal restored the Court of First Instance’s order for specific performance. It held that (a) the cheque for $3.1 million was tendered conditionally to the vendor’s solicitors upon the understanding that they would not cash it unless they were able to return the signed agreement to the purchaser’s solicitors within 3 working days and (b) the further deposit was paid to and received by the vendor through its agents the solicitors at the point when the cheque was cleared and credited to the solicitors’ account. Hence, to simply refund the deposit was not enough. [1] The parties had agreed that in case of ambiguity the Chinese version should prevail. 
Background 1. In late November 2011, rumours were circulating among pupils at a school in Hong Kong and their parents to the effect that the 1st and 2nd Appellants were suspected of having cheated in school tests, but had got away with it because their father, the 3rd Appellant, was a member of the board of governors. In the light of this, the Respondents, who are parents of a pupil attending a school in Hong Kong, published five emails and a meeting summary to a number of parents of children at the school as well as the school management. The Appellants argued that the publications were defamatory, and that the defence of qualified privilege could not be relied on by the Respondents since it was defeated by proof of malice. 2. After trial before the jury, the jury returned the verdict that whilst all six sets of offending words in the publications were defamatory of the Appellants, only four out of the six were published by the Respondents with malice. The trial judge then found that the publication of the remaining two emails was protected by qualified privilege. 3. On appeal, the Court of Appeal held that the judge had misdirected the jury on the issue of malice, and that the jury verdicts on that issue must be set aside. In deciding between ordering a retrial and substituting an alternative verdict, the Court of Appeal concluded that there was no evidence on which a properly directed jury could have made a finding of malice on the part of the Respondents. Judgment was accordingly entered for the Respondents. 4. The main two issues before this Court in this appeal were concerned with the proper legal approach to the issue of malice, as well as whether a retrial should have been ordered by the Court of Appeal. The Court’s decision on the law 5. “Malice” is an unfortunate expression which it is preferable to avoid before juries as it can lead to confusion. To determine whether a communication was published maliciously for the purpose of rebutting a defence of qualified privilege, two questions must be decided. First, as a question of law to be decided by the judge, was the occasion privileged, and if so, for what purpose? Second, as a question of fact to be decided by the jury, was that the defendant’s purpose when he published the communication in question? The first question must be decided before the second. 6. Knowledge of falsity, or indifference as to truth or falsity, is not itself the test of malice: it is merely evidence from which an improper motive can often, but not always, be inferred. The ultimate question remains whether the defendant used the occasion for a purpose other than that for which the privilege was accorded. Thus, a particular conclusion on malice does not automatically follow in every case from the jury’s view of the defendant’s knowledge or belief as to the truth or falsity of what is communicated. 7. However, a defendant’s knowledge that the matter was false at the time when he communicated it, or his recklessness as to its truth or falsity in the sense of not “considering or caring whether it be true or not”, will generally be conclusive evidence that he did not make the communication for the same purpose as that for which the privilege was accorded. The Court’s decision on the facts 8. There were substantial defects in the jury directions. First, since the judge decided the issue of qualified privilege after the jury had delivered their verdicts on malice, it was in principle impossible for the judge to explain to the jury, before they returned their verdicts on the issue of malice, the purposes for which the privilege was accorded. Secondly, the judge erred in his direction by defining malice as the use of the occasion for an improper purpose or an absence of honest belief in the truth of what was published, when only the former is the definition of malice. Thirdly, the jury received no direction as to the weight of the burden of proof which the Appellants had to discharge. It follows that it was appropriate for the jury verdicts to have been set aside. 9. In deciding that there should not be a retrial, the Court of Appeal erred when it proceeded on the basis that reckless indifference as to the truth or falsity of the publication could not establish malice unless it amounted to willful blindness or was accompanied by another state of mind such as gross, unreasoning prejudice. 10. The evidence which the Court of Appeal examined before reaching the conclusion that there could not be a finding of malice included evidence which could be regarded as going the other way. There were matters on which both parties could rely in support of their respective positions. No assumption can thus be made as to the correctness of the Court of Appeal’s conclusion on the facts. 11. A retrial should therefore be ordered on the issue of malice. The appeal is allowed and the orders made by the Court of Appeal are set aside. 
1. On 15 May 2011, the Respondent took part in an event to raise awareness of issues faced by the lesbian, gay, bisexual, transgender and intersex community. The event was held in a public pedestrian precinct on the part of Lockhart Road between East Point Road and Cannon Street, Causeway Bay, designated as a pedestrian street at the relevant time and included a performance on a temporary stage involving music, chanting of slogans and dance (the “Dance”). 2. On the day of the event, the Appellant considered that the Dance constituted “public entertainment” under section 2 of the Places of Public Entertainment Ordinance (the “PPEO”), namely “any entertainment within the meaning of this Ordinance to which the general public is admitted with or without payment” and that the location of the Dance was a “place of public entertainment”. The Dance was stopped after the Appellant informed the organisers that a licence under the PPEO was required. 3. The issue in the appeal was whether, and in what circumstances, on the true construction of the PPEO, an entertainment which was presented or carried on in a public street or other publicly accessible open space was one for which the organisers were required to obtain a licence. That question in turn depended on whether the Dance was a “public entertainment” and whether the place where it was presented or carried on was a “place of public entertainment”. The Court of First Instance held that the organisers of the Dance were required to obtain a licence under the PPEO. The Court of Appeal, on the other hand, held that they were not so required. 4. The Court of Final Appeal, by a majority of 3:2, dismissed the appeal and held that the organisers of the Dance were not required to obtain a licence under the PPEO. A “public entertainment” as defined under the PPEO required that it be one “to which the general public is admitted”. According to the majority, the requirement was that the public be admitted to the place of entertainment, and not merely to the entertainment. The licence requirement under the PPEO was directed at persons who presented or carried on public entertainments in respect of their keeping or using places of public entertainment. Legislative history suggested that the admission of the public involved an admission to a locality. The Chinese text “讓公眾入場” of the definition of “public entertainment” also supported the view that it was concerned with the admission to the place of entertainment, and not merely to the entertainment. 5. The majority held that the word “admitted” should be construed in an active sense and as requiring some form of control over the admission to the place. The natural and ordinary meaning of the word “admitted” suggested an active sense of giving permission to enter or have access or letting a person in. If admission of the public to an entertainment did not imply some control over admission or exclusion, a number of surprising and unintended results would follow, catching buskers and other informal entertainments. 6. On the facts, the organisers of the Dance did not have the power to exclude other persons from the pedestrian precinct where the Dance was presented or carried on. The public was not admitted to the pedestrian precinct. Accordingly, the pedestrian precinct was not a place of public entertainment under the PPEO. The organisers of the Dance were not required to obtain a licence. Dissenting judgment of Ribeiro PJ (Ma CJ agreeing): 7. According to the minority, the definition of “public entertainment” was concerned with the nature of the entertainment rather than the place where it was presented. An entertainment became a public entertainment because the general public were “admitted” to the entertainment. The definition made no mention of the place at which the entertainment was staged. There was no requirement that the general public had to be “admitted” to such a place before the duty to obtain a licence arose. 8. The minority did not accept the majority’s view that a place to which persons were admitted necessarily implied a means of controlling admission. As a matter of language, “admitted” meant there was some place open to or accessible to the general public. It might most commonly be used in relation to a locality, but it was by no means confined to such usage. 9. The minority accepted that the Chinese text of the definition of “public entertainment”, especially the expression “入場”, carried a connotation of “locality” which did not exist in the English text. Having regard to the object and purpose of the PPEO, namely the promotion of public safety, the meaning which best reconciled the English and Chinese texts was the construction based on the English text in accordance with section 10B of the Interpretation and General Clauses Ordinance. 
1. QT is a British national. She is homosexual and met her partner, SS, who has dual South African and British nationality, in 2004. In May 2011, QT and SS entered into a same-sex civil partnership in England under the UK’s Civil Partnership Act 2004. 2. SS was offered employment in Hong Kong and granted an employment visa to come and work here. On 23 September 2011, the couple entered Hong Kong, SS on the strength of her employment visa and QT as a visitor. 3. After making unsuccessful applications for a dependant visa and also for an employment visa in her own right, on 29 January 2014 QT submitted the application for a dependant visa which is the subject of this judicial review. 4. On 18 June 2014, the Director of Immigration (“the Director”) refused her application. He found QT ineligible to be considered for the dependant visa given that she was “outside the existing policy” which was to admit a spouse as a dependant only if he or she was party to a monogamous marriage consisting of one male and one female (the “Policy”). The Courts below 5. In October 2014, QT commenced the present judicial review proceedings seeking to quash the Director’s decision refusing her dependant visa application, arguing, among other things, that the Director’s decision was unreasonable in the public law sense as it was discriminatory against her on sexual orientation grounds that were not justified. 6. In the Court of First Instance, QT’s application for judicial review was dismissed. However, the Court of Appeal unanimously allowed QT’s appeal. It held that the sexual orientation discrimination ground was decisive of the appeal. 7. The Director’s stated rationale for adopting the Policy was (a) to encourage persons with needed skills and talent to join Hong Kong’s workforce, accompanied by their dependants; and (b) to maintain a system of effective and stringent immigration control. The Director argued that he was entitled to draw a “bright line” between married and unmarried persons, for the sake of legal certainty and administrative convenience. (the “Director’s Justification”) 8. The Court of Appeal held that whilst the aims of attracting talent and immigration control were legitimate, the Director’s eligibility requirement, restricted to heterosexual married persons and excluding same-sex married partners or civil partners, was not rationally connected to those aims. 9. The CA gave permission for the Director to appeal to this Court. Fifteen banks, sixteen law firms, and Amnesty International applied for permission to intervene and make submissions, but their applications were refused. This Court’s analysis 10. The Director has wide powers over immigration control under the Basic Law and the Immigration Ordinance pursuant to which the Policy is operated. However, the Director rightly accepted that he must exercise them in accordance with the principle of equality. The rule of law requires such powers to be fairly and rationally exercised and the principle of equality (treating like cases alike and unlike cases differently) is an important aspect of such rationality. Violation of this principle may lead to a successful judicial review challenge. 11. The two main contested issues were (i) whether there was a differential treatment of QT which was discriminatory; and (ii) if so, whether such discriminatory treatment could be justified. 12. It should be noted that this appeal does not involve any claim that same-sex couples have a right to marry under Hong Kong law, and that it was recognised that a valid marriage under Hong Kong law is heterosexual and monogamous and is not a status open to couples of the same sex. Is justification required? 13. The Director’s first argument was that the differential treatment between QT and a married spouse under the Policy requires no justification, since an obvious difference exists between a partner to a civil partnership and a married spouse. He argued that he was entitled to adopt a policy conferring the benefit of a dependant visa only on spouses in a union which, if celebrated here, would have been recognised as a valid marriage under Hong Kong law. Thus, it was argued that he was entitled to treat same-sex couples who could not attain marital status under Hong Kong law as being obviously not in a relevantly similar situation with married couples. 14. The Court rejected this argument for three reasons. First, it is circular. It puts forward the challenged differentiating criterion as its own justification. To the question: “Why is QT treated less favourably than a married person?” he essentially answers: “Because she is not married”. Secondly, the Director’s assertion that an obvious difference exists between marriage and a civil partnership was not accepted. Marriage and civil partnership are each a status recognised under United Kingdom law. Civil partnership is not called marriage but in almost every other respect it is indistinguishable from the status of marriage. Thirdly, the decided cases cited by the Director do not support his argument. 15. The Court of Appeal in the present case suggested that there are certain “core rights and obligations” unique to marriage based on which differential treatment cannot be regarded as discriminatory and therefore requires no justification. Such an approach is also circular and gives rise to fruitless debates as to what does or does not fall within the “core”. It should not be followed. The correct approach is to examine every alleged case of discrimination to see if the difference in treatment can be justified. The Director’s Justification 16. It was accepted by the Director that if the differential treatment required justification, the Policy would involve indirect discrimination on the basis of sexual orientation since same-sex couples would not be able to enter into a marriage valid under Hong Kong law to satisfy the eligibility requirements. The Director argued, however, that the differential treatment was justified and that the court should not interfere unless it found that the Policy was manifestly without reasonable foundation. 17. The Court agreed with the Court of Appeal in holding that there was no rational connection between the Policy and the stated twin aims of attracting foreign talent and maintaining strict immigration control. The Policy ran counter to the aim of encouraging talent to join the Hong Kong workforce since a person who had the talent or skills deemed needed or desirable could be straight or gay. It is similarly hard to see how the Policy’s exclusion, on grounds of sexual orientation, of persons who were bona fide dependant civil partners of sponsors granted employment visas promoted the legitimate aim of strict immigration control. 18. The differential treatment of QT on the basis of administrative convenience was also irrational given that QT and SS could just as conveniently produce their civil partnership certificate as a heterosexual married couple could produce their marriage certificate. 19. In the absence of a rational connection between the Policy and the avowed legitimate aims, it was not necessary to determine whether the differential treatment was proportionate to accomplishing those aims. The appropriate standard of review is case-specific and the Court would, if necessary, have examined whether the Policy went beyond what was reasonably necessary to attain aims which were legitimate. Disposition 20. The appeal was unanimously dismissed. 
The parties are a relatively young couple without any children. The husband comes from a well-known family and is highly educated. During the marriage, the wife's health deteriorated considerably and she has been unable to work since. The husband did not work for most of the marriage in order to take care of the wife. The parties enjoyed considerable financial support from the husband’s parents. However, neither the husband nor the wife was found to have any significant assets of their own. The parties separated in 2006, and the husband petitioned for divorce in 2008. The Court of Appeal ordered the husband to make to the wife a $1.5 million lump sum payment and periodical payments of $42,500 a month until death of either party or the remarriage of the wife, whichever is earlier or until further order. The husband appealed on the basis that the orders were wrongly based on the assets of his parents. The Court held that in dealing with financial assistance from third parties, the courts must consider (i) the extent of the third party financial assistance, and (ii) the likelihood of such financial assistance continuing in the foreseeable future. The court should take into account not only what a party actually has, but also what might reasonably be made available to him or her if a request for assistance were to be made. This approach is entirely consistent with the court’s duty to take into account relevant matters in deciding ancillary relief applications under s.7(1) of the Matrimonial Proceedings and Property Ordinance. The Court stressed that court orders can only apply to parties to a litigation and not non-parties who have provided financial assistance to a party previously. The court does not make orders to put pressure on such non-parties to add to the relevant spouse’s resources when the evidence suggests that they would not or are unlikely to do so. The Court upheld that the Court of Appeal's orders and dismissed the appeal. It held that the periodical payments were entirely justified in view of the husband’s earning capacity alone, which the Court of Appeal found to be under-utilised. The lump sum payment was also justified on the husband’s financial resources as he has or is likely to have generous financial support from his parents in the foreseeable future. 
1. The Appellant was (and is) a substantial enterprise carrying on business in the design, manufacture, marketing and selling of fashion dolls, including in particular a highly successful fashion doll known as “Bratz”. The Respondents, in comparison to the Appellant, were a much smaller enterprise carrying on the same business, which began to manufacture and market a range of dolls known as “Funky Tweenz” around early 2002. In June 2002, the Appellant commenced an action alleging that the Respondents had infringed its copyright by manufacturing and marketing the “Funky Tweenz” dolls. Prior to the commencement of action, the Appellant caused “Cease and Desist” letters to be sent to the actual and potential customers of the Respondents, threatening to sue them if they dealt with the “Funky Tweenz” dolls. In July 2002, upon the Appellant’s application, an interlocutory injunction against the Respondents was granted, and although not expressly included in the order, it was common ground between the parties that a cross-undertaking as to damages had been given by the Appellant by implication. After nearly six years, very shortly before the trial, the Appellant applied to discontinue the action and for the injunction to be discharged. An inquiry was ordered as to damages on the basis of the Appellant’s cross-undertaking sustained by the Respondents as a result of the interlocutory injunction. 2. The appeal raised the issue of what loss the Respondents sustained as a result of the injunction. The Court of First Instance rejected the Appellant’s argument that the loss caused by the “Cease and Desist” letters was attributable to the litigation (or threatened litigation) per se instead of the injunction, and held that it was artificial in the circumstances to draw a distinction between the two. It accepted the evidence of the Respondents’ expert, and awarded damages of US$7,250,000 to the Respondents on the basis that they had sustained ten years loss of profit from 2002 to 2011 inclusive as a result of the injunction. The Appellant’s appeal on such award was dismissed by a majority of the Court of Appeal. The Appellant appealed to the Court of Final Appeal. 3. The Court unanimously allowed the Appellant’s appeal, setting aside the award by the Court of First Instance and substituted it with an award of US$450,000. The Court agreed with the test on causation laid down by Arnold J in Lilly Icos LLC v 8PM Chemists Ltd, that the loss must be such that it would not have been sustained but for the injunction but the injunction need not be the sole cause of the loss. 4. The Court held that, in the circumstances, it was wrong to say that it was artificial to draw a distinction between the effect of the litigation and threatened litigation on the one hand and the effect of the interlocutory injunction on the other because the evidence showed that in a number of cases, it could not have been the injunction that put the customers off e.g. it was the Respondents’ evidence that some recipients of the “Cease and Desist” letters cancelled their orders or did not place orders in the “Funky Tweenz” dolls because they did not wish to be sued in their respective jurisdictions. Moreover, the Respondents recognised in their evidence that the effect of the “Cease and Desist” letters was independent of any injunction. 5. The Court also held that the ten years loss of profit sustained as a result of the injunction could not be justified because there was evidence from both parties that a particular doll would have a life span of no more than about two years, unless there was some refreshment of the dolls. It was clear that the Respondents did not contemplate such refreshment of the “Funky Tweenz” dolls during the first ten years. Moreover, it was wrong to have regard to the “Bratz” and “Barbie” dolls as comparators given the disparity in size between the Respondents and the Appellant, and there was no convincing evidence that the Respondents could have spent anything approaching the amounts spent by the Appellant in developing, marketing and refreshing their dolls. 6. As to what sum should be awarded to the Respondents, the Court adopted a liberal approach and held that the assessment should be carried out in a broad commonsense way. After considering a number of factors which suggested that there was a good chance that, absent the injunction, the Respondents would have made significant profits, as well as all other circumstances, the Court came to the figure of US$450,000. 
The Appellant is a post-operative male-to-female transsexual person who has undergone sex reassignment surgery (“SRS”) at hospitals managed by the Hospital Authority in Hong Kong. She and her male partner wish to get married but the Respondent refused to celebrate their marriage, deciding that she does not qualify as “a woman” under the Marriage Ordinance (“MO”) and the Matrimonial Causes Ordinance (“MCO”). The Appellant brought judicial review proceedings to challenge that decision, contending that she ought in law to count as a woman for the purposes of marriage. She argued that (i) on a true and proper construction, the words “woman” and “female” in sections 21 and 40 of the MO include a post-operative male-to-female transsexual; and (ii) if not, these two sections are unconstitutional having regard to her right to marry under Article 37 of the Basic Law and/or Article 19(2) of the Hong Kong Bill of Rights (“HKBOR”) and/or her right to privacy under Article 14 of the HKBOR. Both the Court of First Instance and Court of Appeal dismissed the Appellant’s application. The Court of Final Appeal allowed the appeal by a 4:1 majority. The Court held that in enacting the MCO, the legislative intent was to adopt an English statute which endorsed the decision of the English court in Corbett v Corbett,holding that procreative intercourse was an essential constituent of a marriage at common law, and therefore that biological factors were the only appropriate criteria for assessing the sex of an individual for the purposes of marriage. The MO covered the same ground and was to be similarly interpreted. The Respondent was therefore correct in construing the relevant sections as excluding the appellant as a woman for the purposes of marriage. Article 37 of the Basic Law and Article 19(2) of HKBOR protect the right to marry. While the institution of marriage is necessarily subject to legal regulation, such legal rules must not be inconsistent with and operate so as to impair the very essence of that right. The Court noted that in present-day multi-cultural Hong Kong, the nature of marriage as a social institution had undergone far-reaching changes and the importance of procreation as an essential constituent has much diminished. In addressing the question whether a post-operative transsexual like the Appellant qualifies as “a woman” so as to be entitled to marry a man, it is contrary to principle to focus merely on biological features fixed at the time of birth and regarded as immutable. The Court should consider all circumstances relevant to assessing a person’s sexual identity at the time of the proposed marriage, including biological, psychological and social elements and whether any SRS has occurred. In restricting the criteria for ascertaining a person’s gender to merely biological factors, the Court held that the relevant provisions in the MCO and MO are inconsistent with and fail to give proper effect to the constitutional right to marry. In denying a post-operative transsexual woman like W the right to marry a man, those provisions realistically preclude her from marrying at all. They therefore impair the very essence of W’s right to marry. As such, the Court held that the provisions are unconstitutional. It is unnecessary to consider whether W’s right to privacy under Article 14 of HKBOR may support her constitutional right to marry. The Court further held that whether a consensus regarding a transsexual’s right to marry exists among the people of Hong Kong is not a relevant consideration since reliance on the absence of a majority consensus as a reason for rejecting a minority’s claim is inimical in principle to fundamental rights. The Court held by a majority that the appeal had to be allowed and, subject to possible modifications in light of parties written submissions, it indicated the nature of the Declarations it was proposing to make, namely, that: (i) s20(1)(d) of the MCO and s40 of the MO must be read and given effect so as to include within the meaning of the words “woman” and “female” a post-operative male-to-female transsexual person whose gender has been certified by an appropriate medical authority to have changed as a result of sex reassignment surgery; and (ii) the Appellant is in law entitled to be included as “a woman” under relevant provisions of the MO and MCO and is eligible to marry a man. The Court leaves open the question whether transsexual persons who have undergone less extensive treatment might also qualify. It recognises that legislative intervention would be highly beneficial in various respects, including establishing a means for deciding who qualifies as “a woman” or “a man” for marriage purposes. Whilst the Courts could formulate a test and decide questions regarding the implications of recognising an individual’s acquired gender for marriage purposes, it would be distinctly preferable for the legislature to introduce legislation similar to the United Kingdom’s Gender Recognition Act 2004 (“GRA”). The GRA sets up machinery for an expert panel to vet gender recognition claims on a case-by-case basis, and grants gender recognition certificates which recognise successful applicants in his/her new sex. It also provides a practical model for possible approaches to deal with other legal ramifications of recognising a person’s acquired gender. The Court recognises that whether new legislations should be enacted is entirely a matter for the legislature to decide. Subject to the parties’ further submissions, it proposes to suspend the operation of the orders to be made for the period of 12 months from the date of judgment to enable consideration to be given to possible legislation. The Appellant will be entitled to the declared reliefs at the end of that period whether or not new legislation is in place. Dissenting judgment of Chan PJ: Chan PJ held that recognition of transsexual marriages is a radical change of the traditional concept of marriage and marriage is an important social institution which has its basis in the social attitudes of the community. Changes in the laws of overseas jurisdictions to allow transsexuals to marry in their post-operative sex have been informed by social consultation which indicated changes in social attitudes towards marriage. There is no evidence whether social attitudes in Hong Kong have changed to the extent of abandoning or fundamentally altering the traditional concept of marriage. The Court should not invoke its power of constitutional interpretation to recognize transsexual marriages in the absence of such evidence. To do so would amount to making a new policy on a social issue which has far-reaching ramifications and which can only be made after public consultation. This is not the business of the Court. Chan PJ is sympathetic to the problems facing transsexuals and calls for a comprehensive review of the relevant legislation with a view to propose changes in the law as soon as practicable. 
1. In 1992, the Appellants, land developers, applied to the Town Planning Board (the “TPB”) for planning permission for a proposed development of land in the New Territories. The permission was eventually granted by the Town Planning Appeal Board (the “TPAB”) subject to certain conditions, including the submission of a master layout plan to be approved by the TPB. Pursuant to the said conditions, the Appellants submitted plans and reports but in 2010, the TPB concluded that the master layout plan submitted deviated substantially from the approved scheme and that the planning conditions had not been satisfactorily complied with (the “2010 Decision”). Approval was refused. 2. The Appellants applied to the TPB to review the 2010 Decision under section 17(1) of the Town Planning Ordinance, Cap 131 (the “Ordinance”) but the TPB declined to review on the ground that, on the wording of section 17(1), it had no power to do so. The Appellants appealed to the TPAB, which reversed the TPB’s ruling, holding instead that the TPB did have jurisdiction under section 17(1) to review its decision regarding the satisfaction of the planning conditions (the “TPAB Decision”). 3. The TPB applied for a judicial review of the TPAB Decision. Both the Court of First Instance and the Court of Appeal held that the 2010 Decision was not reviewable by the TPB as a matter of jurisdiction. The main issue on this appeal was the ambit of the jurisdiction of the TPB to review its own decisions under section 17(1) of the Ordinance. Specifically, what is meant by the words in that provision “a decision of the Board under section 16 ….” (the “Relevant Words”)? The issue before the Court was one of statutory construction. 4. The Appellants contend that the Relevant Words should be read to include any decisions which merely have a connection with section 16. However, the TPB contend that the Relevant Words cover only a decision refusing permission and a decision granting permission but with conditions. 5. As a starting point, both the majority and the minority agreed that the relevant provision to be considered was section 17(1) of the Ordinance as it stood prior to the amendments made to the Ordinance in 2004. 6. Construing the Relevant Words in the light of their context and purpose, the majority held that section 17(1) of the Ordinance should be read as confining the review mechanism only to decisions of the TPB refusing permission under section 16(3) and granting permission but with conditions imposed under section 16(5). The reasons are as follows: 7. First, looking at the statutory purpose, sections 16 and 17 formed a scheme to deal with applications for permission in respect of plans. Section 17 was intended to be parasitic on section 16 in that it deals with the right of review of a decision made under section 16. Since section 16 dealt with applications for permission, a decision made “under section 16” should not include decisions of whatever nature which merely have a connection with that section. 8. Prior to the wording of section 17(1) to be construed in the present case, which begins “Where an applicant is aggrieved by a decision of the Board under section 16 ….”, the previous version of section 17(1) began with “Where the Board refused to grant permission under section 16”. This wording made it clear that the section 17 review was a narrow one. The change in wording, which was introduced in 1991 (the “1991 Amendment”), was not intended to considerably widen the ambit of a section 17(1) review but rather only to cover one specific type of decision under section 16, being a grant of permission with conditions. 9. Second, in the context of the provisions of sections 16 and 17, section 16 is headed “Applications for permission in respect of plans” and that section deals with how such applications are processed and determined by the TPB. Therefore, as a matter of plain language, the relevant decision “under section 16” must be the decision of the TPB on applications for permission. 10. Further, section 16(6) directly refers to the right of review under section 17 only in relation to a refusal to grant permission and no other decision and this is another strong indication of the restrictive ambit of a section 17 review. Likewise, under section 17(6), which sets out the powers of TPB on review, reference is made specifically to the power to refuse or grant permission, or grant permission subject to conditions. In the majority’s view, this also reinforces the point that the relevant decision under section 16 relates to applications for permission. 11. Although section 17(6) was amended in 2004 such that the TPB can now “confirm or reverse the decision in question, or substitute for the decision in question any decision it could have made under section 16”, this change in wording does not have the effect of widening the scope of section 17 to include every decision connected with section 16. This would otherwise mean a radical change to a previously restrictive view of the effect of sections 16 and 17, which is not supported by the Explanatory Memorandum to the 2004 amendments or the relevant extracts from Hansard. Further, if the 2004 amendments had widened the scope of section 17 review to every decision connected with section 16, it would lead to a number of anomalous results. Dissenting judgment of Mr Justice Tang PJ: 12. Dissenting on the construction of section 17(1), the minority held that the Appellants were entitled to a review of the 2010 Decision. 13. First, the minority found that the words “a decision of the Board under section 16” literally would include decisions as to whether conditions imposed under section 16(5) have been satisfied, which are ancillary or incidental to its power to impose conditions. 14. Second, having regard to the context and purpose of section 17(1), the minority questioned the usefulness of sections 16(6) and 17(6) as an aid to the construction of the wording in section 17(1). When the 1991 Amendment was introduced, sections 16(6) and 17(6) were not amended to fall in line with the new language of section 17(1). Therefore, sections 16(6) and 17(6) should be read subject to the new language of section 17(1) and not to restrict the meaning of that provision. 15. Further, the establishment of the TPAB and its function as an independent arbiter on appeal in respect of planning decisions under section 16 also formed part of the context. Since on a section 16 application, the TPB does not have the final say on the merits of the application or the conditions imposed, the TPB should not have the final say on the merits in respect of the satisfaction of conditions either. 16. Finally, in the minority’s view, the 2004 amendments to section 17(6) were irrelevant to the construction of section 17(1). Although a right of review of every decision connected with section 16 is capable of abuse, the fear of abuse is unreal, nor should it deny a right to review when there is no abuse. In the event of actual and persistent abuse, the solution would be to tighten up the legislation rather than giving a restrictive interpretation to section 17(1). CONCLUSION: 17. Accordingly, the appeal was dismissed by a 4:1 majority. 
1. Television Broadcasts Limited (“TVB”) produced a New Year’s Eve Countdown show broadcast from Olympian City on 31 December 2009. At the material time, Chan was the General Manager (Broadcasting) of TVB while Tseng was the sole director of Idea Empire Advertising & Production Company Limited (“IEAP”) and acted as Chan’s agent for outside engagements. 2. Chan accepted $112,000 from Olympian City through IEAP to host a live edition of his “Be My Guest” show as part of the Countdown broadcast. Tseng, being the sole director of IEAP, was charged with offering, and Chan with accepting, that sum in contravention of section 9 of the Prevention of Bribery Ordinance. They were also charged with and convicted of a conspiracy to commit those offences. 3. The Court considered the mental fault element in relation to different variants of the section 9 offence, explaining what has to be intended by persons offering, and agents soliciting or accepting, advantages as inducements or rewards in such cases. 4. The Court also considered the requirement in section 9 that the prosecution prove that the advantage was offered, solicited or accepted as an inducement or reward for or otherwise on account of the agent doing or forbearing to do the relevant act “in relation to his principal’s affairs or business”, the main focus of the appeal being as to the meaning of that phrase. Applying and expanding upon a decision in the Privy Council in 1997 (Commissioner of the ICAC v Ch'ng Poh), the majority of the Court disagreed with the Court of Appeal and held that Chan’s appearance on the “Be My Guest” segment of the Countdown show, was not an act “in relation to his principal’s affairs or business”, and gave guidance as to the proper interpretation of that phrase. The majority of the Court also considered how a provision in the Ordinance which places the burden of proving the defences of lawful authority and reasonable excuse on the accused operates in relation to a charge of conspiracy to contravene section 9. Tang PJ gave different reasons for arriving at the same conclusion as the majority. He held that Chan’s performance on the show did constitute an act “in relation to his principal’s affairs or business” but held that he had a reasonable excuse for so acting. 5. The Court unanimously allowed the appeals and quashed the appellants’ convictions. 
In FACC 4 of 2012, Paul Y entered into a contract with the owner’s representative to undertake carcass work at a building site. The work included aluminum cladding work, which was subcontracted by Paul Y’s contractor. An accident occurred where two employees of the subcontractor fell from an aluminum slab; one was injured and the other killed. In FACC 5 of 2012, Lucky Engineering was Jockey Club’s contractor for upgrading its electrical power station system at the swimming pool, supplying and installing black lights, and supplying electrical powers for grey lights at the Happy Valley Clubhouse. A workman of the subcontractor was electrocuted whilst installing the grey lights. He was not an employee of Lucky Engineering. The Appellants were convicted after trial: Paul Y on three charges, one in the capacity of a proprietor of the industrial undertaking and two in the capacity of a contractor responsible for a construction site; Lucky Engineering on two charges, one in the capacity of a proprietor of the industrial undertaking and the other in the capacity of a contractor responsible for a construction site. On appeal, their convictions were upheld. They appealed to the Court of Final Appeal, which allowed the appeals on the proprietor charges but dismissed the appeals on the contractor charges. The proprietor charges concerned the relationship between sections 6A and 13 of the Factories and Industrial Undertaking Ordinance (FIUO). Section 6A imposes a general duty on a proprietor to ensure the safety of his employees. Section 13(1) imposes criminal liability on the proprietor of every industrial undertaking where any offence under the FIUO has been committed; that proprietor will be guilty of a “like offence”. The issues were (1) whether section 13(1) when read together with section 6A(1) permit a proprietor to be convicted of a “like offence” in relation to a person who was not his employee; and (2) if so, whether any defence would be available to that proprietor. The Court noted that the proprietor charges were based on a misunderstanding of sections 6A and 13, namely that the two sections in combination imposed a duty on a proprietor to ensure safety extending beyond his employees. The Court held that, on the proper understanding of the sections, there could be more than one proprietor at an industrial undertaking, such that when there is a chain of contractors, each contractor in the chain is a proprietor of its own business and could be charged individually in respect of its own employees under section 6A. If another proprietor’s business encompassed the business of the proprietor liable under section 6A, that other proprietor would be liable under section 13. It would be a defence to that other proprietor that the predicated offence (section 6A in the present appeals) has not been committed. In Paul Y’s case, the Court accepted the prosecution’s submission that Paul Y could be charged under section 13 on the basis of another proprietor’s contravention of section 6A. However, since that was not the basis of the proprietor charge, Paul Y’s appeal on this charge was allowed. As the proprietor charge against Lucky Engineering suffered from the same defect, Lucky Engineering’s appeal on this charge was also allowed. The contractor charges concerned regulations in the Construction Sites (Safety) Regulations. There was no issue that the relevant regulations were contravened. The issue was whether each Appellant was “the contractor responsible for the relevant construction site” so as to be rendered liable under such regulations. In particular, (1) whether a contractor from whom other contractors did not derive their contracts, could nevertheless be deemed the principal contractor; and (2) if one contracts with an “owner’s representative”, whether it would necessarily preclude the contractor from being the principal contractor. The Court held that the regulations cast a wide net. A contractor responsible for the relevant construction site could be responsible even for other contractors on that site who had no direct contractual relationship with him (e.g. sub-contractors of his own contractors). What amounts to a construction site is a question of fact, and there could be more than one construction site at any place where more than one type of construction work is being undertaken. Moreover, the fact that a contractor enters into a contract with an “owner’s representative” would not preclude the contractor from being the principal contractor. In Paul Y’s case, since Paul Y was the contractor responsible for the carcass work of which the aluminum cladding work formed part, the Court was satisfied that Paul Y was the principal contractor and dismissed its appeals on the contractor charges. In Lucky Engineering’s case, the Court noted the critical fact that Lucky Engineering was in charge of providing power supply for the grey lights which electrocuted the deceased. It held that on the evidence the magistrate was entitled to find that Lucky Engineering was responsible for the construction site which included the grey lights. Lucky Engineering’s appeal on the contractor charge was also dismissed. 
1. The defendant was charged with one charge of misconduct in public office, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221. The particulars of offence alleged that, “[the defendant], being a public official, namely a member of the Legislative Council (“LegCo”) of the Hong Kong Special Administrative Region, between the 22nd day of May 2012 and the 23rd day of June 2016, both dates inclusive, in Hong Kong, in the course of or in relation to his public office, without reasonable excuse or justification, willfully and intentionally misconducted himself by failing to declare or disclose to, or by concealing from LegCo his acceptance of a payment of $250,000 Hong Kong currency from Lai Chee-ying through Mark Herman SIMON on the 22nd day of May 2012.” 2. Before trial, the defence raised two pre-trial issues, one concerning the jurisdiction of the court to try the offence and the other concerning the admissibility of certain documents coming from LegCo which the prosecution intended to rely upon at the trial. The objections were said to be based on “parliamentary privilege” and “freedom of speech” of a Member in LegCo proceedings. Having heard counsel submissions, the court rejected the defence contentions on the pre-trial issues and ruled in the favour of the prosecution. The trial then proceeded. 3. At the trial, the bulk of the prosecution evidence was adduced by agreement of the parties. In the light of the agreed bank evidence, there could be little dispute that there was a deposit into the defendant’s bank account of HK$250,000 which came from Mr Lai. The prosecution case was based on the defendant’s alleged failure to disclose the payment from Mr Lai which the prosecution said the defendant was under a duty to disclose pursuant to Rule 83 of the Rules of Procedure of LegCo. The prosecution said that the alleged non-disclosure was a serious misconduct in that the defendant had deprived the public’s right to know about any actual, perceived or potential conflict of interest and had undermined the public confidence of the effective discharge of the office by LegCo Members. It was noted that the charge contained no allegation of corruption. It was also not the prosecution case that the payment was intended to make the defendant feel obliged to be favourably disposed to either Mr Lai or his business. On the other hand, the defence case was that the payment was a donation to the League of Social Democrats (“LSD”) of which the defendant was the Chairman rather than a donation to the defendant personally, so that Rule 83 was not engaged. 4. Having considered all the evidence, the court was not satisfied beyond reasonable doubt the prosecution had proved its case that the payment in question was a payment to the defendant personally as a LegCo Member rather than a donation to LSD which the defendant had received on its behalf. In the circumstances, the defendant had the benefit of doubt and was acquitted of the charge. 
1. Extradition proceedings were commenced against the Appellant, a Hong Kong permanent resident, at the request of the Government of the Commonwealth of Australia for his surrender to Australia where he was wanted for certain drug offences. On 17 March 2011, a magistrate made an order under section 10(6)(b) of the Fugitive Offenders Ordinance (the “FOO”) committing the Appellant to custody to await the decision of the Chief Executive as to the surrender of the Appellant to Australia. 2. The evidence against the Appellant included telephonic communications intercepted and obtained by Australian authorities in Australia under Australian law. Without such intercept evidence there could be no prima facie case against him. 3. The Appellant applied for a writ of habeas corpus ad subjiciendum. He contended that the intercept evidence would not be admissible in Hong Kong because of Article 30 of the Basic Law, and therefore, there was no prima facie case sufficient to put the Appellant on trial in Hong Kong for the offences. Therefore, the requirement under section 10(6)(b)(iii) of the FOO had not been satisfied and so, the committal order was wrongly made. Both the Court of First Instance and the Court of Appeal disagreed and upheld the committal order. 4. The Court of Final Appeal also dismissed his further appeal. The Court held that the purpose of Article 30 of the Basic Law was to control covert surveillance, and it was not concerned with admissibility of evidence. 
1. The Respondent, a private violin teacher, helped her student’s parent in purchasing a new Italian violin. She recommended a music instruments company and arranged a viewing of selected violins, which she attended with the student and parent. She tested the violins and negotiated the purchase price. A violin was chosen and purchased at a discount. As a result, the Respondent received a commission from the company, but she did not tell the parent. She was in a position of conflict of interest because the greater the discount for the parent, the smaller the commission. 2. The Respondent was charged with accepting an advantage as an agent contrary to section 9(1)(a) of the Prevention of Bribery Ordinance, Cap 201. “Agent” is defined to include someone “acting for” another. At trial, the Magistrate found no pre-existing legal relationship between the Respondent and the parent that made the former an “agent” of the latter for the violin purchase, and thus ruled there was no case to answer. 3. This ruling was upheld on appeal. The Judge found that the Respondent was merely an independent contractor for teaching violin, who had offered help on a voluntary and non-commercial basis outside teaching. 4. This Court held, as it had done previously, that no pre-existing legal relationship is required for one to be an “agent” of another under section 9. It need not even be proved that that other person had requested the agent to act. A person is an “agent” by having “acted for another” where that person has agreed or chosen so to act in circumstances giving rise to a reasonable expectation, and hence a duty, to act honestly and in the interests of that other person to the exclusion of his or her own interests. The section 9 scheme goes beyond ordinary principles of agency law. 5. Accordingly, the courts below were wrong to have focussed on and required proof of a pre-existing legal relationship. Their views that the Respondent was not an “agent” by helping in the violin purchase because the help was voluntary and outside violin teaching were wrong. 6. In the present case, the Respondent was acting for, and thus the agent of, the parent in the violin purchase. The Respondent’s conduct created a reasonable expectation that she would act honestly and in good faith in the interest of the parent to the exclusion of her own interest in connection with such purchase. By accepting a secret commission, she put herself in a situation of conflict of interest which subverted the integrity of the agency relationship between her and the parent. DISPOSITION: 7. The Court unanimously allowed the appeal and set aside the rulings of no case to answer. 
Background 1. This decision concerns a piece of land located at Penny’s Bay on Lantau Island (“the Land”). The Land is now included in the site of Hong Kong Disneyland. In 1994, however, Penny’s Bay was a remote corner of the coastline, inaccessible except from the sea or on foot. 2. The Land was acquired by Penny’s Bay Investment Company Limited (“PBIC”) in 1970 pursuant to an Agreement and Conditions of Exchange (“the Grant”). The Land enjoyed rights of access to the sea (“the Marine Rights”). 3. In 1994, the Government produced a scheme which involved substantial reclamation at Penny’s Bay in order to provide land for the construction of two container terminals and associated infrastructure (“CT Scheme”). On 5 May 1995, the CT Scheme was formally authorised by the then Governor in Council (“the 1995 Authorisation”). The reclamation required by the CT Scheme would inevitably deprive the Land of the Marine Rights. 4. Under the Foreshore and Sea-bed (Reclamations) Ordinance, PBIC was entitled to compensation for the loss of its Marine Rights. 5. In 1999, the Government abandoned the CT Scheme and instead promoted the Disneyland project. Subsequently the 1995 Authorisation was formally revoked. The Land was required for the Disneyland project, and was surrendered by PBIC to the Government in 2001. It is common ground that PBIC was still entitled to compensation for the loss of its Marine Rights. 6. The question that remained was how the compensation payable to PBIC should be calculated. The 2010 Decision of the Court of Final Appeal 7. When this case came before this Court in 2010, it was held that the amount of compensation should be the difference between the value of the Land as at 5 May 1995 with and without the Marine Rights (“the 2010 Decision”, see Penny’s Bay Investment Co Ltd v Director of Lands (2010) 13 HKCFAR 287). This shall be referred to as the difference between the “Before Value” and the “After Value”. Proceedings in the lower courts 8. Thereafter, in accordance with the guidance given by the 2010 Decision, the Lands Tribunal assessed the difference between the “Before Value” and the “After Value”. 9. Both PBIC and the Director of Lands were dissatisfied with the determination by the Lands Tribunal, and they each appealed to the Court of Appeal. 10. Again, each party was dissatisfied with the Court of Appeal’s decision, and appealed to this Court:- (1)PBIC contends that the expression “godown purposes” in the Grant included mid-stream operation or open storage of containers (“Issue One”); (2)The Director of Lands contends that the “After Value” should be calculated on the assumption that the CT Scheme was bound to be carried out (“Issue Two”). The Decision on Issue One 11. In interpreting the words “godown purposes”, the Court first considered the natural meaning of these words, and then considered whether there was anything in the Grant, or in the surrounding circumstances when the Grant was made, which might contradict that interpretation. 12. The Court considered that a “godown” is a building in which storage takes place, and therefore “godown purposes” would naturally mean the use of a building in which storage takes place, and there is nothing in the Grant or in the surrounding circumstances which casts doubt on that conclusion. 13. Accordingly, the Court held that “godown purposes” cannot be interpreted to include mid-stream operation or open storage of containers. PBIC’s appeal on Issue One is dismissed. The Decision on Issue Two 14. According to the 2010 Decision, in assessing the “After Value”, the Marine Rights are to be treated as irretrievably lost de facto as well as de jure. 15. If this Court assumes that the Marine Rights have been lost, it is not unreasonable for this Court to consider why they have been lost. Hence, it is logical for this Court to assume that the cause of the loss, namely the reclamation, will undoubtedly proceed. 16. Moreover, from the evidence, it was the market’s view that if the reclamationwas bound to proceed, the CT Scheme would be bound to proceed as well. 17. Accordingly, the “After Value” should be assessed on the assumption that the CT Scheme was bound to be carried out. The Director of Lands’ appeal on Issue Two is allowed. 
1. The Respondent (Defendant below), a foreign national, was charged with one count of drug trafficking. The main issue at trial would have been one of the Defendant’s knowledge: did he know he was carrying dangerous drugs, or might he have believed he was not carrying drugs with him but confidential documents, as he claimed on his arrest? 2. Before the trial began, the parties proposed to adduce, by way of admitted facts, a series of WhatsApp messages extracted from the Defendant’s mobile phone as evidence (“WhatsApp evidence”). But the Judge, of her own motion, decided to examine the admissibility of the WhatsApp evidence, and ruled that it was inadmissible as the Defendant’s mobile phone was allegedly mishandled by the investigating officers (“voire dire ruling”). 3. Following the voire dire ruling, the Defendant contended that he could not receive a fair trial as he was unable to adduce the WhatsApp evidence, which would support his defence as to knowledge. On this basis, the Defendant applied for a permanent stay of proceedings. The Judge allowed the application (“stay decision”). 4. Subsequently, the Prosecution notified the Judge of its intention to appeal against the stay decision to the Court of Final Appeal. Despite this, the Judge granted the Defendant bail on terms permitting him to leave Hong Kong, which he duly did. 5. There were four issues arising on this appeal: (1) whether the Prosecution could challenge the voire dire ruling; (2) whether the voire dire ruling was flawed; (3) whether the stay decision was wrong; and (4) how the Judge should have approached the question of bail and whether she was wrong in her approach. Challenge to the voire dire ruling 6. A decision to grant a permanent stay of proceedings was a final decision appealable to the Court under section 31 of the Hong Kong Court of Final Appeal Ordinance (Cap.484). 7. Although the voire dire ruling was an interlocutory decision, it was the basis of the stay decision. Thus, the Court held that the Prosecution could challenge the correctness of the voire dire ruling as part of the appeal against the stay decision. Whether the voire dire ruling was flawed 8. The Court held that the Judge’s ruling against the admissibility of the WhatsApp evidence was wrong. 9. First, the Judge mistakenly proceeded on the assumption that the WhatsApp evidence was being tendered by the parties to prove the truth of the contents of the communications, which would have engaged the common law rule against hearsay. In fact, the WhatsApp evidence was relied on only to demonstrate that the messages had been received by the Defendant. Thus, the hearsay rule and the statutory exception to that rule provided by section 22A of the Evidence Ordinance (Cap.8), to which the Judge referred in the voire dire ruling, were both irrelevant. 10. Secondly, the Judge confused the issue of admissibility with the weight and reliability of the WhatsApp evidence. The WhatsApp evidence was relevant to the Defendant’s knowledge of whether he had been carrying drugs or confidential documents. On its face, the WhatsApp evidence was authentic and neither party had raised any issue as to its authenticity. The WhatsApp evidence was therefore admissible and the Judge had trespassed on the role of the jury in purporting to decide on its weight and reliability and in ruling it inadmissible. Whether the stay decision was wrong 11. The Court held that, as the stay decision was decided solely on the basis of her erroneous voire dire ruling, it followed that the Judge wrongly exercised her discretion in granting a permanent stay of proceedings because she took an erroneous, and therefore irrelevant, factor into consideration. Approach to bail pending appeal 12. The Court reviewed the statutory regime and held that the Judge erred in granting bail. The starting point was to ask whether the Defendant would be detained but for the stay decision. In the absence of any material change in circumstances, it would be inappropriate to release a defendant on bail conditions that might give rise to a substantial risk of his being absent, as the Defendant’s absence would then frustrate the Prosecution’s ability to proceed with the prosecution if the appeal were to succeed and, in practice, render the appeal ineffective. Disposition 13. Accordingly, the Court unanimously allowed the appeal. 14. It was ordered that the stay decision and the grant of bail be set aside, and the Prosecution be allowed to list the matter before another judge of the Court of First Instance to seek such orders for the prosecution to proceed, if possible. 
1. On 4 October 2019, the Chief Executive in Council (“CEIC”) imposed a prohibition on the wearing of masks and other facial coverings at certain public gatherings. This was effected by the enactment of the Prohibition on Face Covering Regulations (Cap. 241K) (“PFCR”) by the CEIC in exercise of her powers under the Emergency Regulations Ordinance (Cap. 241) (“ERO”). 2. These appeals arose from proceedings brought by members and former members of the Legislative Council (“LegCo”) (“the applicants”) against the CEIC and Secretary for Justice (“the Government”) to challenge the constitutionality of the prohibition on face coverings. 3. The question at the heart of the appeals was whether in the light of the Basic Law of the Hong Kong Special Administrative Region (“Basic Law”), the CEIC was lawfully given power by LegCo to make the PFCR under the ERO. If the ERO was determined to be constitutional and the PFCR duly made thereunder, the other principal question on the appeals was whether the prohibitions contained in the PFCR were proportionate, and therefore lawful, restrictions of protected rights. 4. The Courts below had differed on these issues. The Court of First Instance (“CFI”) had decided that the ERO was not compatible with the Basic Law and was therefore unconstitutional. The CFI also held that the prohibitions in the PFCR, in respect of unauthorised assemblies, public meetings and public processions, were a disproportionate restriction on the freedom of assembly, freedom of speech and right to privacy protected in the Basic Law and Hong Kong Bill of Rights. 5. The Court of Appeal (“CA”) reversed the CFI decision on the constitutionality of the ERO and held that the PFCR was lawfully enacted under the ERO. The CA also differed in part from the CFI on the issue of proportionality of the PFCR, holding that the prohibition on wearing face coverings at unauthorised assemblies was proportionate but the prohibitions on face coverings at public meetings and public processions were not. 6. On these appeals, the Court of Final Appeal (“CFA”) rejected the applicants’ challenge to the constitutionality of the ERO. Although, under the Basic Law, power to make legislation is vested in LegCo and that general legislative power cannot be delegated, the power to make subsidiary legislation can be delegated by LegCo to another person or body, including the CEIC. The CFA concluded that the ERO was not a delegation to the CEIC of general legislative power to make primary legislation but was instead authority to make subsidiary legislation in times of emergency or public danger. It held that the ambit of the power to make subsidiary legislation under the ERO in a situation of emergency or in circumstances of public danger, although wide and flexible, was not unconstitutional. That power was not wholly unlimited but, on the contrary, was subject to meaningful control: by the requirements of the ERO itself; by judicial control through judicial review; by legislative control through the procedure of negative vetting by LegCo; and by the requirement in the Basic Law that any regulations under the ERO which restricted protected rights must satisfy the requirements of being prescribed by law and proportionate. 7. The CFA also rejected the applicants’ other constitutional challenges to the ERO and so proceeded to consider the parties’ respective contentions as to whether the prohibitions in the PFCR were proportionate. The CFA held that, although the PFCR restricted the freedom of assembly, freedom of speech and right to privacy, which were protected rights under the Basic Law and BOR, these rights were not absolute rights and were subject to lawful restrictions including the interests of public safety, public order and the protection of the rights of others. Whether the restrictions in the present case were lawful depended on the application of the four-stage proportionality analysis by which, in Hong Kong, restrictions on protected rights were measured for their lawfulness. 8. The CFA noted that the applicants had not sought to challenge the proportionality of the prohibition in the PFCR on the wearing of face coverings at unlawful assemblies. This had all along been accepted by the applicants to be rationally connected to the Government’s legitimate aim in making the PFCR and was proportionate as being no more than necessary to achieve that aim and struck a fair balance between an individual’s rights and the societal benefits served by the restriction. 9. In relation to the further prohibitions on the wearing of facial coverings at unauthorised assemblies, public meetings and public processions, the CFA held that each of these prohibitions was proportionate in that it was directed to the legitimate aim of the prevention and deterrence of violence before a peaceful public gathering had deteriorated into violence. The need for preventative measures was not limited to those situations in which an offence under the Public Order Ordinance (Cap. 245) had already taken place. These restrictions were proportionate and no more than reasonably necessary. They also struck a fair balance between the rights of individuals and the societal benefits of the encroachment into those rights. 10. In reaching these conclusions, the CFA stressed a number of factors in the unchallenged evidence filed by the Government concerning the degeneration of law and order in Hong Kong by early October 2019. These showed that the PFCR was made to address an ongoing situation of violence and unlawfulness existing over a period of months and which led the CEIC to conclude there was an occasion of public danger under the ERO. The wearing of facial coverings had an emboldening effect on protesters and their supporters and individuals were abusing their anonymity by acting with a sense of impunity and an ability to evade police investigation. The situation on the streets of Hong Kong had become dire. Members of the public were fearful of going out and there was significant inconvenience caused to the public at large by the blockage of roads and closure of public transport facilities. Due weight should be given to the interests of those who might have wished to demonstrate peacefully but who were deterred because of the ongoing violence and, similarly, to those persons who had sustained personal injury or property damage as a result of the actions of the violent protesters. The interests of Hong Kong as a whole should be taken into account since the rule of law itself was being undermined by the actions of masked protesters who, with their identities concealed, were seemingly free to act with impunity. The PFCR was a proportionate response on the part of the Government. 11. The CFA therefore dismissed the applicants’ appeals (in FACV 6, 7 & 8 of 2020) and allowed the Government’s appeal (in FACV 9 of 2020).