Shuaiqi/CLSum huggingface dataset:
1. On 10 January 2011, at a works site adjacent to the East Rail Line near Tai Po Tau, the Respondent carried out works in the vicinity of an underground electricity cable. The works involved the erection of iron rods to set up a safety net and demarcate the works site. This involved rods of 1-2 meters in length being hammered by hand into the ground to a depth of approximately 1 foot. During the process of hammering, an underground electricity cable was damaged. 2. The Respondent was charged and convicted by a Magistrate under sections 10(1)(a) and 17(3) of the Electricity Supply Lines (Protection) Regulation, Cap. 406H (“the Regulation”) which prohibits a person from carrying out works in the vicinity of an underground electrical cable, unless before the works have begun he has taken reasonable steps to ascertain the existence of any such cable within the works site. This conviction was set aside on appeal to the Court of First Instance. 3. The Court of Final Appeal considered the interpretation of section 2 of the Regulation which defines “works” as meaning any kind of works involving or in connection with, among other things, “ramming” but as not including “works necessary to ascertain the alignment and depth of an underground electricity cable”. 4. The Court looked specifically at two issues. First, whether the word “ramming” should be construed as “ramming involving at least the use of machinery” and “excluding the act of hammering by hand”. Second, whether the erection of the iron rods to set up safety nets to form the boundary of the works site fell within the exclusion of “works necessary to ascertain the alignment and depth of an underground electricity cable”. 5. The Court held that under sections 2 and 10(1)(a) of the Regulation, “ramming” should be construed to include penetration of the ground by an object by means of force applied by any means, including a hammer, and not just by means of machinery. 6. On the second issue, the Court held that the preparatory acts of erecting the iron rods to set up safety nets to form the boundary of the works site were not necessary to the ascertainment of the alignment and depth of an underground electricity cable and so did not fall within the exclusion in the definition of “works” in section 2 of the Regulation. 7. The appeal was accordingly allowed, and the conviction restored.
1. In 2012, the Appellant arrived at the Hong Kong International Airport from Kuala Lumpur. During inspection, heroin was discovered in the lining of her suitcase. 2. At trial in 2014, by a majority of 5:2, the jury found the Appellant guilty of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134). The Court of Appeal dismissed her appeal but in 2017, the Court of Final Appeal quashed her conviction and ordered a retrial. 3. At the second trial in 2017, the Appellant was convicted by a second jury on a 6:1 majority and sentenced to imprisonment for 21 years. She succeeded on appeal to the Court of Appeal, which quashed her conviction and ordered a second retrial. The Court of Appeal made no reference to the evidence before it relating to the Appellant’s psychiatric condition, noting only that a third trial and being remanded in custody “might be causing her frustration”. 4. At issue before this Court was whether the Court of Appeal had been wrong in ordering a second retrial, by not sufficiently taking into account the undue hardship and unfairness allegedly occasioned to the Appellant by the second retrial order, particularly given her psychiatric condition. 5. The Court held that the Court of Appeal should have taken into account the Appellant’s mental condition in determining whether to order a second retrial. 6. In deciding not to order a second retrial, the Court considered the following factors. 7. The Appellant had been in custody for 7½ years, from her arrest to the hearing of this appeal, through no fault of her own. If a third trial took place later this year, she would have been in custody for 8 years without her guilt having been established. If she were convicted and sentenced for 21 years again, taking into account the 1/3 allowance for good behaviour, she would already have been in custody for 8 years out of 14, more than half of a long sentence. 8. Psychiatric evidence before this Court put into perspective this lengthy period of custody. The medical experts agreed that the Appellant suffered from a moderate to severe Major Depressive Disorder with psychotic symptoms. She was significantly stressed when reminded of the ongoing court proceedings. 9. Although the offence in question was serious, the strength of the prosecution’s case was open to question. In the circumstances, it was clearly in the interests of justice not to order a second retrial for the Appellant. DISPOSITION: 10. The Court unanimously allowed the appeal, quashed the order for a retrial, and ordered the release of the Appellant.
1. The appellant was convicted in the District Court on three counts of money laundering, contrary to section 25(1) of the Organized and Serious Crimes Ordinance, Cap 455 (“OSCO”). 2. It was alleged by the prosecution that the appellant had reasonable grounds to believe that the property he dealt with, directly or indirectly represented the proceeds of an indictable offence. 3. The appellant had set up two companies in Hong Kong, which opened Hong Kong dollar and foreign currency accounts. At trial, he claimed that through these accounts he ran an “underground” banking operation to overcome exchange control restrictions, and that he had performed “gatekeeping” precautions. 4. The dismissal of the appellant’s appeal by the Court of Appeal led to the appeal before the Court. 5. The key issues on appeal are: (1) where the relevant property had emanated from overseas activities, by reason of section 25(4) of OSCO, whether the prosecution had to prove that an accused knew of the nature of such activities and that such conduct constituted an indictable offence under Hong Kong law (“The s 25(4) point”); (2) where the relevant property is a chose in action (such as a deposit of money into a bank account), whether a global charge aggregating a number of different items would offend the rule against duplicity (“The duplicity issue”); and (3) whether the trial judge wrongly regarded the facts as being sufficient to establish the elements of the offence (“Factual issues”). The s 25(4) point 6. OSCO neither required proof of knowledge of the actual conduct that produced the relevant property, nor that such identified conduct would be illegal under Hong Kong law. It was sufficient for the prosecution to prove that an accused had reasonable grounds to believe that the property dealt with, directly or indirectly represented the proceeds of an indictable offence. The duplicity issue 7. There were numerous deposits followed by withdrawals in the accounts used by the appellant in his underground banking operation, all within a short period of time. Also given that no complaint had been made at or before trial based on duplicity, the three charges were unobjectionable. Factual issues 8. There was no merit in the complaint regarding the factual issues. The trial judge had carefully considered the underground banking operations and looked at the matter from the appellant’s point of view, particularly as to whether he performed “gatekeeping” precautions. The charges were established on the facts. Conclusion 9. Accordingly, the Court dismissed the appeal.
The Respondent was the holding company of the Rockapetta Group of companies (the “Group”), including Rockapetta Industrial Company Limited (“RICL”) and Grand Extend Investments Limited (“GEIL”). The Appellant was the co-founder, chairman and executive director of the Group. The Appellant extended loans totalling $83 million between 1995 and 1998. Financial documents indicated such loans were made to RICL and GEIL. The loans were partly repaid, reducing the outstanding balance of the loans to $44.5 million. In 2004, the Appellant sued the Respondent, claiming the outstanding balance of the loans he made in the sum of $44.5 million and interest. It was alleged that the Respondent was itself liable for the repayment of the loans. The trial judge held in favour of the Appellant against the Respondent. The Court of Appeal allowed the Respondent’s appeal on the basis that the trial judge erred in holding that the Appellant’s loans were made to the Respondent rather than to RICL and GEIL. The Court of Final Appeal unanimously dismissed the Appellant’s appeal. The essential issue was a factual one: who was or were liable for the repayment of the loans? The Court of Final Appeal rejected the Appellant’s submission that companies in the Group, including the Respondent, had assumed joint and several liability in relation to the loans. A claim on such a basis had not been made by the Appellant in any of the claim documents filed in court. The Court of Final Appeal referred to a number of documents and other matters evidencing the fact that the loans made by the Appellant were to RICL and GEIL, instead of the Respondent. Accordingly, the Respondent could not be held liable. The Court of Final Appeal observed that the present appeal is one of many instances of an unmeritorious appeal under the “as of right” provision of section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance (Cap 484). If leave to appeal had been required, it would no doubt have been refused. Hopeless appeals brought under the “as of right” provision such as the present one lead to injustice and are wasteful of resources. The “as of right” provision no longer has any validity or proper purpose.
The 1st Appellant, as debtor, and 2nd and 3rd Appellants as guarantors, took out a series of mortgaged loans with the Respondent, a moneylender. The Appellants defaulted in repayment in 2003 and the outstanding loan amount then was some $20 million. The Appellants and Respondent entered into successive Tomlin Orders in 2004 and 2005, each containing a schedule of monthly repayment for that year of part of the total outstanding amount. Upon default of the Appellants in complying with the 2005 Order, the Respondent sought to recover the entire loan. The Appellants claimed that since they had belatedly fully complied with the 2005 Order, their entire liability had been discharged and the Respondent could no longer claim the amount outstanding. The Court upheld the decision of the Court of Appeal and the Court of First Instance that there was a common intention between the two parties that the full payment of the 2005 instalments would not discharge the entire post-2005 debt. Since both parties appeared to have agreed that the result of their agreement should be embodied in the 2005 Order, it followed that if their Order could be construed as implying a full release of all outstanding debt, it did so by common mistake. The Court affirmed the trial judge’s finding that the 2nd Appellant was not an honest witness, that he always knew it was never the intention of the Respondent to release its debt and that it was misconduct on his part to use the form of the Tomlin Order to support a claim that the parties had done so. The Court held that there is no inconsistency on the Respondent’s part in asserting in the alternatives both common mistake and in the case of misconduct by one party, the unilateral mistake of the other. The Court upheld the lower courts’ rectification of the terms of the two Tomlin Orders which were made to reflect the Appellants’ duty to discharge all that is outstanding in the repayment of the approximately $20 million owed to the Respondent. The appeal is unanimously dismissed.
1. The case concerned a charge of money laundering. The Appellant was charged with dealing with all the monies deposited between 1 January 2006 and 26 October 2011 into her accounts with five banks and with jewellery and property found in her flat and in two bank safe deposit boxes rented by her. After trial, the Appellant was convicted and sentenced to 6 years’ imprisonment. 2. The Appellant appealed against the conviction on the basis that the charge was duplicitous in that it improperly charged more than one offence in one count of the indictment against her. 3. Applying the approach in HKSAR v Yeung Ka Sing Carson and HKSAR v Salim Majed (FACC 5 & 6/2015 and FACC 1/2015, unrep., Judgment dated 11 July 2016), the Court held that there was a sufficient connection between the acts of money laundering with which the Appellant was charged, such that they might fairly be regarded as forming part of the same transaction or criminal enterprise. Furthermore, there was a lack of any prejudice to the Appellant in the conduct of her trial and appeal to the Court of Appeal by reason of the form of the charge against her. Thus, the charge was held not to be duplicitous within the meaning of the Indictment Rules. 4. Accordingly, the appeal was dismissed. Nevertheless, the Court observed that, depending on the facts in other cases, a combined charge similar to that in this case could potentially give rise to a risk of unfairness due to the inherently duplicitous nature of such a charge.
1. The Appellant was responsible for the management and operation of the Jockey Club Kau Sai Chau Public Golf Course (the “Golf Course”). On 18 May 2009, an employee of the Appellant (the “employee”) received an instruction to pick up four workers in a vehicle owned by the Appellant (the “light utility vehicle”) for some electrical engineering repair work. As the employee was driving the light utility vehicle on a road adjacent to one of the golf courses, it lost control and overturned as it was going downhill. The employee and the four workers were thrown out of the light utility vehicle and injured. One of the workers subsequently died as a result of his injuries. 2. The Appellant was charged with one count of using a motor vehicle without third party insurance, contrary to sections 4(1) and 4(2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap 272) (the “MVI(TPR)O”). It was convicted at trial and fined HK$6,000. The Court of First Instance dismissed its appeal. The Appellant appealed to the Court of Final Appeal. The appeal raised questions concerning the definitions of “road” and “motor vehicle” in the MVI(TPR)O. 3. The Court unanimously dismissed the Appellant’s appeal. In relation to whether the section of the road where the accident occurred was a “road” to which the public had access, the Court considered that golfers playing at the Golf Course were members of the public in general. The Golf Course was a public golf facility and not a private club. There was ample evidence to find that golfers used and had access to the road in question. Therefore, it was a road to which the public had access. 4. In relation to whether the light utility vehicle was a “motor vehicle” as defined in the MVI(TPR)O, the material question was whether it was “a vehicle intended or adapted for use on roads”. The correct test to be applied was Lord Parker CJ’s objective test in Burns v Currell, namely whether a reasonable person looking at the vehicle would say that one of its users would be a road user. An application of the Burns test was highly fact-sensitive. In particular, the Court highlighted the fact that the light utility vehicle was regularly used on the road in question, being a road to which the public had access. The Courts below were correct to find that a reasonable person looking at the light utility vehicle would say that one of its users was use on a “road”. Therefore, the light utility vehicle was a “motor vehicle” as defined in the MVI(TPR)O.
1. Tang Pui King (the “Deceased”) died intestate in 1978 and left a large estate (the “Estate”) to his five sons including the 1st Appellant and the Respondent. The 1st Appellant and the Deceased’s widow were appointed as administrators of the Estate. 2. In March 2003, the 1st Appellant bought a property in Yuen Long (the “Property”). Without having sought the Respondent’s or the other brothers’ consent, the 1st Appellant completed the purchase with $11.48 million of the Estate’s money, representing 40.4% of the total purchase price. The 1st Appellant then executed a declaration of trust stating that he held the property on trust for the 2nd Appellant, his corporate vehicle, and eventually assigned the Property to the 2nd Appellant. 3. In October 2003, the 1st Appellant repaid the amount taken from the Estate with interest at 3% per annum (the “Repayment”). The Respondent became aware of the 1st Appellant’s use of the Estate’s money in 2005 and commenced proceedings in 2009, claiming to be entitled to a share of the profit the 1st Appellant derived from the acquisition of the Property. 4. The trial judge held that the 1st Appellant had misused the Estate’s funds and that the Respondent was entitled to a share of the profit. This was affirmed by the Court of Appeal. 5. The Court held that the present case is concerned with a fiduciary who made a profit by applying his principal’s money for his own benefit. It is a straightforward case where a trustee has committed a breach of trust. 6. As a matter of law, the 1st Appellant’s taking of the Estate’s money for his own purposes was an unauthorised disbursement. Although the 1st Appellant had intended to repay and did so within a short time, this does not convert the misappropriation into an authorised loan. 7. When the Respondent discovered the disbursement, he had the right to elect whether to reject or affirm it. Had he rejected it, the 1st Appellant would have been obliged to make good the deficit in the Estate’s account. However, the Respondent has affirmed the transaction by treating it as an authorised investment of the Estate’s money for the benefit of the Estate. 8. The right to affirm or reject the use of the money to purchase the Property belongs to the beneficiaries and not the trustee. By insisting that the Repayment discharged the 1st Appellant’s liability to reimburse the Estate, he is attempting to buy out the Estate’s interest, which the Respondent has elected to reject. 9. The policy behind a claim by a beneficiary for a breach of trust in the present case is to deter the trustee from using the trust fund as his personal bank account. Such conduct puts the trust fund at risk without hope of gain, and equity’s response is to insist that any profit is for the beneficiaries and any loss for the trustee. 10. Accordingly, the Court dismissed the appeal.
This appeal concerned five lots of land in Kowloon City (the “five Lots”). The Government Leases under which each of the five Lots are held (the “Government Leases”) contained restrictive covenants, including prohibition against industrial user, the building of a factory and, if houses were to be built, building more than one house on each Lot. Currently there stands a house on each Lot. The Respondent wishes to redevelop the five Lots by building a 26 storey composite building straddling across all five Lots. The building plans for the redevelopment were rejected by the Lands Department. The position of the Director of Lands was that the proposed redevelopment breached the relevant restrictive covenants. The Respondent applied to the court for a declaration that the relevant restrictive covenants had not been breached. The trial judge dismissed the application on the basis that a composite 26 storey building was not a “house” contemplated by the Government Leases. The Court of Appeal held to the contrary and allowed the Respondent’s appeal. The Court of Final Appeal (the “Court”) allowed the appeal and restored the orders made by the trial judge. The central question in this appeal was whether the Government Leases permit the construction of the proposed building. This involved construing the meaning of the word “house” in the restrictive covenants and ascertaining the intention behind such covenants. The Court emphasized the overall importance of context in statutory interpretation. It examined, among others, the clauses in and the relevant factual circumstances underlying the relevant Conditions of Exchange and the Government Leases. It held that the meaning of the word “house” in the restrictive covenants must have reference to those characteristics of the houses which were actually standing on the Lots at the time the Government Leases were entered into. On proper construction, the only permitted redevelopment under the Government Leases is the building of no more than one house on each Lot, with the characteristics of the houses in existence at the time the Government Leases were entered into and no other type of building. Therefore the proposed redevelopment by building a 26 storey building is prohibited.
1. The appellant was charged with murdering his girlfriend (the “Deceased”) by chopping her to death. The evidence was that there were 64 separate wounds to the Deceased’s body. The appellant admitted to killing the Deceased but raised the defence of provocation. He was convicted of murder after a re-trial. 2. Following the grant of leave to appeal, the parties filed a joint written case agreeing that the appeal should be allowed. The only contested part of the appeal was whether, if the appeal were to be allowed, a further re-trial should be ordered. 3. Accepting the parties’ joint submissions, the Court allowed the appeal and quashed the conviction. The Court held that, in the particular circumstances of this case, there was a real risk of the jury adopting an impermissible line of reasoning when considering the objective limb of the provocation defence. It was therefore of such a nature as to require the special direction referred to in HKSAR v Liang Yaoqiang (2017) 20 HKCFAR 1 at paragraph [124] in order to counteract that risk. 4. On the issue of re-trial, the Court was satisfied that it would be in the interests of justice to order a re-trial in the present case. 5. Accordingly, the Court allowed the appeal, quashed the appellant’s conviction and ordered a further re-trial for murder.