Shuaiqi/CLSum huggingface dataset:
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. 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.
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. 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.
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.