Shuaiqi/CLSum huggingface dataset:
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 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.
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.
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.