Shuaiqi/CLSum huggingface dataset:
Background 1. In August 2014, the Appellant visited an adult website on which the girl had posted an advertisement, describing herself as aged 17 and offering sexual services at listed prices. They arranged to meet and the Appellant took the girl to a guesthouse where they showered together and the Appellant ran his hands over her body. The girl then performed oral sex on him. At trial, the Appellant’s defence was that he held an honest and reasonable belief that the girl was aged 17. He testified that he did not doubt the girl’s age when he looked at her photo or on the day they met. She was in fact 13 years of age. 2. There was no dispute that the girl consented to the Appellant’s acts. However, he was charged with indecent assault, contrary to sections 122(1) and (2) of the Crimes Ordinance (Cap.200) on the basis that a person below under the age of 16 cannot in law give consent to an act of indecent assault. 3. The magistrate acquitted the Appellant, finding that he honestly and reasonably believed that the girl was aged 16 or over, but the Court of First Instance decided that the offence of indecent assault in relation to a girl who is in fact under the age of 16 is one of absolute liability, meaning that the Appellant’s honest and reasonable belief as to her age was no defence. Decision of this Court 4. In deciding whether an offence is one of absolute liability, the starting point is that a statutory offence is presumed to require proof of mens rea (i.e. knowledge or intention on the part of the accused) unless the statute expressly or by necessary implication makes the presumption inapplicable. The Court did not consider absolute liability necessary to achieve the statutory purposes of section 122, and held that the Judge was wrong to treat it as an offence of absolute liability regarding the girl’s age. 5. The Court held that section 122(2) treats girls and boys under the age of 16 as a vulnerable class in need of a high degree of protection against sexual exploitation (deeming them incapable of giving consent to indecent acts) and necessarily implied that the prosecution does not need to prove mens rea as to the girl’s age. It held, however, that the accused has a good defence if he can prove that it was more probable than not that he honestly and reasonably believed that the girl was 16 or over. 6. Given the magistrate’s findings, the Court allowed the appeal, set aside the decision of the Court of First Instance and restored the Appellant’s acquittal.
1. This appeal concerned 13 parking spaces in Gold King Industrial Building, an industrial building in Tsuen Wan (the “Building”). The 1st Appellant was the agent of the other Appellants, who were the first owners of the Building (the “First Owners”). The Respondent is the Incorporated Owners of the Building. The First Owners let the 13 parking spaces to the Respondent between 1998 and 2006. 2. The Appellants claimed that the 13 parking spaces are owned by the First Owners, while the Respondent contended that they are common parts of the Building. Both the trial judge and the Court of Appeal found in favour of the Respondent. 3. The Court agreed with the lower courts for four main reasons. First, the 13 parking spaces fell within the definition of “common areas” in the Deed of Mutual Covenant in respect of the Building. Second, only ownership shares but not management shares were issued in respect of the 13 parking spaces, which suggested that they were intended for common ownership. Third, the 13 parking spaces had to be reserved for common areas to comply with conditions in the Government Grant for the parking, loading and unloading of vehicles. Fourth, there would be considerable practical difficulties if the 13 parking spaces were not common areas. 4. The First Owners could not rely on the principle of estoppel by convention. This principle is concerned with persons entering into a transaction or legal relationship in reliance on a common assumption. However, since the trial judge had denied the Respondent’s claim for repayment of the rent paid in respect of the 13 parking spaces, the First Owners failed to show that any detriment had arisen from the transactions with the Respondent. 5. Accordingly, the Court dismissed the appeal.
1. The Appellant was caught hiding drugs in his underpants. He admitted to possession of the drugs in question (“Confession”) and was charged with trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134. 2. At trial, the Appellant’s defence was that the Confession was involuntary and thus inadmissible. He claimed that the Confession was induced by certain promises made to him by one of the arresting police officers (“PW2”). 3. A hearing known as a “voir dire” was held to determine the admissibility of the Confession. However, when PW2 was about to give evidence one afternoon, the Appellant fell ill. The Appellant’s barrister applied to adjourn the hearing to the next morning while the Appellant sought a doctor, but the Judge refused. The Judge concluded that the Appellant had a choice to stay or leave and would not be prejudiced by being absent because his barrister had full instructions. The Appellant was therefore absent for the whole of PW2’s evidence at the voir dire. The Confession was held admissible and the Appellant was convicted. 4. The Court of Appeal (“CA”) dismissed the Appellant’s application for leave to appeal against conviction on grounds unrelated to the present appeal but in an Addendum to its judgment, noted the Appellant’s absence from part of the hearing due to illness. 5. On appeal before the Court of Final Appeal, the Appellant argued that a substantial and grave injustice had been done because the Judge’s refusal to adjourn the hearing and decision to continue in his absence deprived him of a fair trial. 6. The Court held that the right of an accused to be present at his trial, which includes a voir dire hearing, provided for by Article 11(2)(d) of the Bill of Rights, is part of the broader right to a fair trial. However, that right is not absolute. The trial judge has a discretion to continue the trial in the accused’s absence in exceptional and appropriate circumstances. A proper exercise of the discretion would require the trial judge to proceed with utmost care and caution, and to consider all factors relevant to ensuring a fair trial including, without limitation, whether the accused’s absence was voluntary or involuntary, the risk of prejudice to his defence, and the length of the required adjournment. 7. The Court held that the Judge should have exercised her discretion with greater care and consideration. In the present case where a brief adjournment is weighed against the Appellant’s important right to be present at all stages of his trial, an adjournment would have been the better course. 8. Nevertheless, the Court held that the trial must be viewed as a whole in determining whether the Appellant, in all the circumstances, had a fair trial. It concluded that the Appellant’s short absence neither prejudiced his defence nor rendered his whole trial unfair, and was in fact counterbalanced by other safeguards he enjoyed in his trial. Accordingly, no substantial and grave injustice had been done to the Appellant. DISPOSITION: 9. The Court unanimously dismissed the appeal.
The appellants were police officers. The 1st appellant was a prosecution witness in a criminal trial in 2007 (the “earlier proceeding”); the 2nd appellant was an exhibits officer in the same trial. During that proceeding, a defence lawyer produced a tape which recorded a discussion between two persons concerning the giving of false evidence. The present proceedings were brought against the appellants, it being alleged that they were the two persons having the recorded discussion. They were subsequently convicted by the District Court of “doing acts tending and intended to pervert the course of public justice” and “misconduct in public office”. Their convictions were upheld by the Court of Appeal. There was no evidence against the appellants of where, when and by whom the recording was made and they argued that evidence of their identity was insufficient. In concluding that the recorded voices were those of the appellants, the District Court Judge took into account both direct and circumstantial evidence, including (1) evidence from a Mr. Lau that he recognized their voices, having had many opportunities to hear them speak; (2) references to certain events on the tape; and (3) evidence as to the actual occurrence of and the appellants’ involvement in the events so referred to. The Court of Final Appeal was of the view that the combination of Mr. Lau’s evidence of identification with the abovementioned circumstantial evidence justified the lower courts in sustaining the appellants’ conviction, having duly noted the dangers of misidentification of voices.