Shuaiqi/CLSum huggingface dataset:
The Respondent is a Pakistani who resided in Hong Kong since August 1997. In 2005, he was arrested and charged with two counts of wounding with intent. He was remanded in jail custody pending trial between November 2005 and March 2006. The Respondent was found to have applied to the Director of Immigration for verification of his status as a permanent resident in mid-March 2006. It is accepted that, at the time when he made his application, if the fact that he was held in custody pending trial was not taken into account, he had been ordinarily resident in Hong Kong on a continuing basis for at least the previous seven years. Some two weeks after the application was made, the Respondent was convicted and sentenced to 3 years imprisonment. The day before his release from prison, he was served with an order of deportation for life issued by the Secretary for Security. The Respondent brought judicial review proceedings against the deportation order. The trial judge upheld the deportation order, but was reversed by the Court of Appeal. The Court of Final Appeal (“CFA”) dismissed the appeal. The issue before the CFA was whether a period of time spent in custody pending trial is to be read as a period of “imprisonment or detention pursuant to the sentence or order of any court” in section 2(4)(b) of the Immigration Ordinance when the trial results in a conviction and sentence of imprisonment. The Appellants noted that where a person who served a period of detention in custody pending trial was subsequently convicted and sentenced to a term of imprisonment, section 67A of the Criminal Procedure Ordinance operates to treat the length of that sentence as being reduced by the time spent in custody pending trial. It was submitted that, viewed as such, the period of custody pending trial becomes part of the sentence of imprisonment by operation of section 67A. The CFA rejected the argument and held that there is a fundamental qualitative difference between detention pending trial, which is not punitive, and imprisonment pursuant to the sentence of the court after trial, which serves the very purpose of being punitive. The legislative intent behind section 67A is to treat the prisoner fairly by recognising the hardship imposed upon him if he was kept in custody pending trial for the purpose of ensuring the integrity of the criminal trial process. It is not designed to give the period of detention pending trial the necessary punitive character. Further, the Appellant’s submissions would give rise to a potential for injustice, as it places pivotal emphasis on whether bail is granted or its conditions are met.
1. This case arose out of a shareholder dispute. Prior to the proceedings, LCL held approximately 46.58% of the issued shares of CYF and was its largest shareholder. Dato Poh Po Lian (“Dato Poh”) was the sole director and shareholder of LCL. A3 to A8 together held 25.211% of the issued shares in CYF. A2, A1’s wife, controlled A3 to A8. 2. A1 and Dato Poh fell out, and a struggle for board control at CYF ensued. LCL attempted to install its own nominees, but the resolution did not pass as a special resolution (requiring 75% approval) was required for removing directors under bye-law 86(4). 3. LCL then alleged that bye-law 86(4) contravened paragraph 4(3) of Appendix 3 of the Listing Rules, which stated that a director was to be removed by an ordinary resolution. On three occasions, LCL proposed a resolution to change the bye-law requirement for removing a director from a special resolution to an ordinary resolution, but A1 and A2 held enough shares to block the resolution each time. 4. In April 2010, LCL began proceedings against A1 to A8 and CYF under section 168A of the Companies Ordinance (Cap. 32), contending that CYF was in breach of the Listing Rules, putting its listed status and shareholders’ interests in jeopardy, and that this was unfairly prejudicial to CYF shareholders. LCL asked the Court for an order that bye-law 86(4) be amended such that directors could be removed via an ordinary resolution in compliance with the Listing Rules. 5. While the proceedings were ongoing, Dato Poh regained control of the board at the AGM on 8 April 2011. 6. At first instance, Barma J ordered the bye-laws to be amended as demanded by LCL. 7. The stock, which was previously suspended for various reasons, resumed trading after such amendment. A1 to A8 had reduced their shareholding below 5% by 21 September 2012 and lost their blocking vote. The case had therefore become completely academic. 8. However, none of this was revealed to the Court of Appeal, which upheld Barma J’s ruling and granted leave to appeal to the Court of Final Appeal. 9. The Court of Final Appeal was only informed of the facts set out in paragraph 7 above two days before the hearing. 10. The Court admonished the Appellants and their solicitors for failing in their duty to the court and wasting the Court’s resources at two levels of appeal, ordering indemnity costs against them. 11. Counsel for the Appellants invited the court to the merits of the appeal, notwithstanding the academic nature of the case. The Court, however, found that the facts were too unusual to be broadly applicable and relevant.
1. Z (“Wife”) and X (“Husband”) were married. C (“Cohabitee”) is the cohabitee of the Husband. The Wife petitioned for divorce and applied for ancillary relief. 2. A primary issue between the parties was the beneficial ownership of the shares in New Asia-International (Group) Ltd (“NAIGL”), a private BVI company. If the shares belong to the Husband they would be taken into account in determining the award to the Wife of ancillary relief, increasing it. So the ownership of the shares was tried as a preliminary issue in the Wife's application for ancillary relief, in which application the Cohabitee became an intervener for the purposes of the preliminary issue. 3. At first instance, Saunders J found as a fact that 83.1% of the shareholding of NAIGL (“the Shares”) belong to the Husband, thus deciding the preliminary issue in favour of the Wife and against the Husband and the Cohabitee. On appeal to the Court of Appeal by the Husband and the Cohabitee, the Court of Appeal affirmed the finding of fact that the Shares belong to the Husband, thus making that finding of fact a concurrent one. 4. On appeal to the Court of Final Appeal by the Husband and the Cohabitee, the Court of Final Appeal held that it would not be purposeful to embark upon a review of the concurrent findings of fact in this case by the courts below and dismissed the appeal. The Court of Final Appeal’s practice, in common with that of the courts of last resort of comparable legal systems, is not to review concurrent findings of fact save in rare and exceptional circumstances. This practice springs from the nature of a court of last resort’s role, which is primarily of resolving points of law of the highest importance. Furthermore, the practice also serves to spare litigants from the oppression of unduly protracted litigation.
1. A wealthy couple divorced, and during the matrimonial proceedings, the court had to determine what assets belonged to the Husband (“H”) so as to be available for distribution. The H and the H’s Father (“F”) claimed that a significant portion of the assets in question belonged to F, while the Wife (“W”) claimed that a fraudulent transaction had taken place between them to defeat her claim for financial provision. 2. W compelled H to produce certain documents through the discovery process. H protested that some of those documents were protected by legal professional privilege (“LPP”), whereby communications between a lawyer and client are not subject to compulsory disclosure. However, the Court of First Instance (“CFI”) held that this rule did not apply since the documents involved the commission of a crime. Amongst the documents H produced, W alleged that one was a forgery. H and F did not admit to forgery, but eventually did not oppose the order setting the transactions aside. The Judge referred the case to the Secretary of Justice (“SJ”) in the light of his findings in the financial provision proceedings that H and F had committed the crimes of perjury, forgery and attempting to pervert the course of justice. 3. The SJ applied to the Court for access to the documents in relation to the alleged crimes. W wanted to assist the investigation by giving the SJ the documents in her possession. Since documents received in the discovery process are subject to an undertaking that they will only be used for the proceedings in which they were disclosed, W applied to the Court to be released from her undertaking. The CFI granted the SJ access to documents and released the wife from her undertaking. 4. The Court of Appeal set aside the order granting the SJ access to the documents because some of them might be protected by LPP and required the SJ first to establish independently that LPP was inapplicable because the documents fell under the crime exception. 5. The Court of Appeal held however that as between W and H and F, it had been established in the CFI that the documents were not protected by LPP. It upheld the CFI order allowing W to give the documents to the SJ, even though the SJ might not obtain them directly from H or F in his pending application. 6. The Court held that a party should not be released from the undertaking without special circumstances, and only where it would not cause injustice to the person who produced the documents. W argued that as a potential victim who wished to report a crime, her release from the undertaking was justified. 7. The Court emphasised that LPP is an absolute right enshrined in Article 35 of the Basic Law, which the SJ had not yet established to be inapplicable. He should have access only if he established in the pending application that the documents are not protected by LPP, being documents involving the commission of a crime. That process should not be side-stepped simply by obtaining them from the Wife. 8. The Court therefore reversed the Orders releasing W from her undertaking with respect to the contested documents.
1. The Appellant, a barrister, was instructed to represent Ms Lau, who was charged with theft in a separate set of criminal proceedings. Ms Lau was a director of a company, which in turn was a corporate director of another company called EC Textiles. Ms Lau was alleged to have created a deed of charge securing facilities at a bank over property which did not belong to her. Ms Mak, the solicitor in charge of this transaction and deed execution, was summoned to give evidence as a prosecution witness in the criminal proceedings against Ms Lau. The Appellant drafted letters which were issued through his instructing solicitor’s firm to Ms Mak, asserting legal professional privilege (“LPP”) on behalf of EC Textiles and threatening legal or disciplinary action against her if LPP was not protected. 2. The Appellant was charged with the offence of attempting to pervert the course of justice. He was convicted at trial and sentenced to six months’ imprisonment. The Court of Appeal dismissed his appeal. It was of the view that whatever the Appellant’s belief in the validity of the LPP point, he was not entitled to harass or bully Ms Mak, the witness, intending by that harassment to force her into taking a course which she was not willing to take, namely, making an application to the court to assert LPP as a basis for not giving evidence. 3. The Court of Final Appeal unanimously allowed the appeal. First of all, it found ample basis for the Appellant to believe that there existed an implied retainer between Ms Mak and EC Textiles. It agreed with the Court of Appeal in giving the Appellant the benefit of the doubt as to his belief in the existence of LPP. During the Appellant’s preparation of Ms Lau’s case, he wrote notes containing his opinion that there was a LPP point to be taken or at least to be further explored. Furthermore, it was evident that he had a poor understanding of the scope and effect of LPP. The Court of Final Appeal rejected the prosecution’s theory that he was a barrister with sound knowledge of the law who cynically used LPP as a pretext for his threats against Ms Mak. 4. In relation to the issue of whether the Appellant’s conduct had the prohibited tendency to pervert the course of justice, the Court of Final Appeal agreed with the Court of Appeal’s reasons for reversing the trial judge’s finding of a prohibited tendency. However, the Court of Final Appeal rejected the Court of Appeal’s substituted basis for such finding. The Appellant caused the threatening letters to be sent for the purpose of pressuring Ms Mak to raise the LPP claim by making an application to the court. Applying pressure on her to make such an application did not constitute the offence charged as it did not constitute conduct with a tendency to interfere with the court’s capacity to administer justice and therefore did not have the prohibited tendency. 5. The Court of Final Appeal reminded members of the legal profession to exercise caution when approaching a witness or potential witness of the other side. Approaching such a witness without informing the other side is bound to arouse suspicion of impropriety.
1. The Plaintiff is a licensed money lender and lent the Defendant $30,000. As he defaulted in making repayments, it obtained a judgment against him, a charging order on his flat and an order for vacant possession and sale, all in default of acknowledgement of service by the Defendant. The Appellant, the Defendant’s wife, approached the Court contending that the Defendant was mentally incapacitated and sought orders that she be appointed his guardian ad litem and that the judgment and consequential orders be set aside. 2. The Plaintiff objected to her appointment and Deputy District Judge Yu dismissed her application. He rejected the Appellant’s expert evidence in favour of the Plaintiff’s and held that it had not been established that the Defendant was mentally incapacitated. The Court of Appeal upheld the Judge’s decision. 3. There were two questions before the Court:- a. What is the correct approach in law to deciding whether a person should be allowed to act as guardian ad litem with a view to protecting the interests of a person sued as defendant, who is alleged to be a mentally incapacitated person? b. Is it appropriate to permit the plaintiff in such cases to oppose such intervention by the proposed guardian ad litem? 4. As regards the first question, the Court held that the lower courts had fallen into error in failing to distinguish between cases where the court was being asked to debar a party from direct access to the court and cases like the present where the Appellant was seeking to act as the Defendant’s guardian ad litem to protect his interests in the face of the Plaintiff’s suit. Since the Appellant was neither acting in an adversarial position vis-à-vis the Defendant nor restricting the Plaintiff’s access to the courts, a judicial inquiry into the Defendant’s mental incapacity was unnecessary provided that the documents specified in the Rules were filed in court. The Courts below had consequently adopted too stringent a test before allowing the Defendant to defend the Plaintiff’s action through a guardian ad litem. 5. As regards the second question, it was inappropriate to allow the Plaintiff whose interests were adverse to those of the mentally handicapped Defendant to prevent him from being represented by a guardian ad litem. This meant that possible lines of defence against the Plaintiff’s claim have never been properly explored. 6. Accordingly, the Court unanimously allowed the appeal, appointed the Appellant as the Defendant’s guardian ad litem and restored the Appellant’s applications to set aside the default judgment and consequential orders.
1. The parties were a wealthy couple owning approximately 50% of the shares in a publicly listed company called ADHL. ADHL’s wholly owned subsidiary held four of the six units in Severn Villa on the Peak. The parties later divorced and the wife applied for ancillary relief. 2. The issue in the Court of Final Appeal concerned a clawback order, which would have allowed the wife to benefit from any possible future redevelopment of Severn Villa by requiring the husband to pay the wife, upon the commencement of the redevelopment, a further sum representing one half of the notional increase in the value of the ADHL shares attributable to the redevelopment. 3. No such order was sought in the Court of First Instance; it was only obtained in the Court of Appeal. 4. Both parties appealed to the Court of Final Appeal. The husband challenged the propriety of the clawback order, while the wife argued that the terms of the clawback order were such that the order was nugatory. 5. For the following reasons, the Court held that it was inappropriate to make the clawback order:- a. First, the making of the clawback order was not fair. The effect of the clawback order was that the wife would get the benefit of what was likely to be ADHL’s best asset without taking the burden of the further investment necessitated by ADHL’s financial condition. Also, the wife was not going to contribute to the expenses or share in any of the risks involved in the redevelopment of Severn Villa. b. Second, the court must as far as possible try to achieve a clean break between the parties. In this case, the terms of the clawback order were fraught with difficulties and would inevitably have given rise to substantial disputes between the parties in the future. c. Finally, if the question of a clawback order had been properly raised at trial, the husband would have adduced additional evidence to deal with aspects of fairness and the foreseeable problems that a clawback order would have caused. 6. Accordingly, the Court unanimously allowed the husband’s appeal and dismissed the wife’s appeal.
1. On 2 June 2004, the Appellant assaulted a Correctional Services Department (“CSD”) officer whilst serving an 18-year prison sentence for drug trafficking. He was convicted by the Magistrate of common assault and sentenced to six months’ imprisonment to be served consecutively. His appeal was dismissed by the Court of First Instance. In support of his application for leave to appeal to the Court of Final Appeal, he relied on two undisclosed inconsistent statements purportedly made by the two CSD officers who had testified against him at the common assault trial. The Respondent conceded the appeal and the Court of Final Appeal quashed the conviction. 2. Subsequently, the statements relied on were found to have been forged and the Appellant was convicted in the District Court after a 96-day trial of perverting the course of justice in relation to the appeal heard by the Court of Final Appeal, and sentenced to four years in prison. The Court of Appeal dismissed the Appellant’s appeal and increased the sentence from four years to six. The Respondent sought an order to re-open and set aside the Court of Final Appeal judgment on the ground that it was obtained by the Appellant’s fraud. 3. The Court held that it had a discretionary power to re-open an appeal where a reasonable basis existed for alleging that its judgment was obtained by fraud. It had an implied power exceptionally to order an appeal to be re-opened where justice so demanded. 4. The Court held that it would not be appropriate to reinstate the original six-month sentence for the common assault. By increasing the sentence from four years to six years for perverting the course of justice, the Court of Appeal had sufficiently punished the Appellant for his fraud on this Court. The six-year sentence reflected the Appellant’s overall criminality. 5. If the Court were to re-open its judgment and then embark on a determination of whether it had in fact been obtained by fraud, disproportionate judicial and public resources would have to be employed without practical consequences in terms of sentence. Accordingly, the Court declined to exercise its discretion to re-open the appeal and dismissed the Respondent’s application.
1. The Appellant was convicted, with others, of an offence of conspiring to commit a money laundering offence contrary to sections 25(1) and (3) of the Organised and Serious Crimes Ordinance (“OSCO”). Their appeal to the Court of Appeal was dismissed. His co-accused then successfully appealed to the Court of Final Appeal against their conviction of that offence in the related case of HKSAR v Li Kwok Cheung George & Ors (2014) 17 HKCFAR 319. 2. In HKSAR v Li Kwok Cheung George & Ors, the Court of Final Appeal held that the ordinary meaning of “proceeds of an indictable offence” in section 25(1) of OSCO was confined to funds derived from the commission of an indictable offence. Thus, no money laundering offence could be committed contrary to section 25(1) of OSCO where a person deals with funds that are known not to derive from any offence but instead are only intended to be used as part of a fraudulent conspiracy. 3. In the present appeal, the Court of Final Appeal noted that, although the grant of an extension of time to appeal on the basis of a subsequent authoritative judgment holding the previous understanding of the law as incorrect was rare and exceptional, the Appeal Committee’s grant of an extension here was justified since the Appellant’s conviction was in the same case, was for the same offence as his successful co-accused and was based on the same facts and evidence. 4. The Court held that in the light of its judgment in HKSAR v Li Kwok Cheung George, the appellant’s conviction in respect of Charge 4 was unsustainable as a matter of law for precisely the same reasons that led to the appeals of his co-accused being allowed in that case. 5. Accordingly, the Court of Final Appeal held that the money laundering offence charged against the Appellant had not been established and that the appellant’s conviction of the money laundering offence, alone amongst the various parties charged with that offence and on an erroneous view of the law, involved a substantial and grave injustice. It therefore unanimously allowed the appeal.
1. The Appellant was convicted by a magistrate for careless driving contrary to section 38(1) of the Road Traffic Ordinance (Cap. 374). His appeal to the Court of First Instance was dismissed. Although the prosecution did not ask for costs, the judge ordered the Appellant to pay costs in the sum of HK$2,000 to the prosecution without first affording him an opportunity to be heard as to whether a costs order should be made. The Appellant duly paid those costs. 2. Section 13 of the Costs in Criminal Cases Ordinance (Cap. 492) governs the making of costs orders against defendants in unsuccessful magistracy appeals. The legal principles governing the making of a costs order under that section are those stated by Ribeiro PJ in HKSAR v Chui Shu Shing (2017) 20 HKCFAR 333. 3. It is first necessary for the judge to find that the appeal was not reasonably arguable. The judge must then go on to apply the principles laid down under section 15 of the same Ordinance, which obliges the court to ensure that any sum awarded is not punitive but only compensatory of properly incurred expenses, and that a contemplated award would be ‘just and reasonable’. 4. To do so, it is necessary for the court to have some idea of the magnitude of costs incurred by the prosecutor, which will likely arise in practice only where the prosecution applies for costs. The court must then afford a proper opportunity to the defendant to be heard as to whether the order should be made. The court must have regard to the financial means of the defendant and satisfy itself that any costs order is one that the defendant is able to pay. It would not be ‘just and reasonable’ to order the appellant to pay costs beyond his or her means. 5. In the present case, it was unquestionable that the judge did not adhere to these principles, and substantive and grave injustice resulted from the costs order made by him against the Appellant. 6. Accordingly, the appeal was unanimously allowed, the costs order made by the Court of First Instance quashed, and the Respondent ordered to refund the costs paid by the Appellant pursuant to the costs order.