Shuaiqi/CLSum huggingface dataset:
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. 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 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. 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. 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.