Shuaiqi/CLSum huggingface dataset:
The Appellants, from the Democratic Republic of Congo and the Republic of Congo, claimed protection as refugees upon or shortly after their respective arrival in Hong Kong. They made their claims to the United Nations High Commissioner for Refugees (“UNHCR”) which processed them in accordance with the procedural standards for Refugee Status Determination (“RSD”). Although the PRC is a party to The United Nations Convention Relating to the Status of Refugees 1951 and the Protocol Relating to the Status of Refugees 1967, the PRC did not apply them to Hong Kong and it is the Government’s policy not to grant asylum. The critical decision for the Director of Immigration (“Director”) is whether to order the removal of such claimants and if so, to which country they should be removed. The Director’s practice is that pending RSD by UNHCR, a refugee claimant in Hong Kong would be permitted to remain and that if the claim succeeds, the refugee would not be repatriated pending resettlement. In this case, the UNHCR investigated and then denied the claims of the appellants. Their appeals to the UNHCR were also dismissed. The Appellants sought judicial review against the Director’s decision to return them to the countries of putative persecution. Both the Court of First Instance and the Court of Appeal dismissed their claims. The Court of Final Appeal allowed the appeal. The Court accepted the appellants’ argument that the Director’s decision to return a refugee claimant is subject to judicial review and must satisfy the high standards of fairness required. Given it is the practice of the Director to have regard to humanitarian considerations when deciding whether or not to exercise his power to remove a refugee claimant, and that whether such claim is well-founded is a relevant humanitarian consideration, the Director must independently determine whether the claim is well-founded. The Court noted that there is a Memorandum of Understanding between the Government and the UNHCR, which provides that the Government would send representatives to the UNHCR to perform RSD duties and the UNHCR shall take full responsibility for the final determination of refugee status of the claimants. The Court held that, while the Director is entitled to give weight to a RSD by the UNHCR, the Director must independently consider the exercise of his power of removal in each case on its own merits. The Court affirmed that the exercise of administrative powers by the Government is necessarily subject to some limits, of which the court has the power to review based on the rule of law. However, the Court acknowledged that judicial review is also subject to a number of limitations, such as those arising from the principles of separation of power and the requirement of justiciability, which may deny jurisdiction to the courts. In this case, the discretion which the Director enjoys in deciding whether to deport refugee claimants is not unfettered, and the rule of law dictates that the decision must be made in accordance with high standards of fairness and subject to judicial review.
1. This was an appeal against the Appellant’s conviction for conspiracy to defraud. It arose as a consequence of the Court’s judgment in HKSAR v Wan Thomas [2018] HKCFA 15, (2018) 21 HKCFAR 214. 2. The Appellant’s conviction arose from the same case as that in HKSAR v Wan Thomas. The Appellant was one of the nine defendants jointly charged with the offence. The prosecution alleged that the defendants had conspired to defraud officers of the Correctional Services Department (“CSD”) by dishonestly and falsely representing to those officers that each of them was a “friend” of an inmate remanded at Lai Chi Kok Reception Centre in order to induce the officers to grant them permission to visit the relevant inmates. 3. The Appellant, together with five other defendants, were convicted after trial by the magistrate. The appeals to the Court of Appeal by four of the defendants, including the Appellant, were dismissed (their original appeal was ordered to be transferred from the Court of First Instance to the Court of Appeal). While the Appellant did not pursue a further appeal to this Court, the 1st defendant (D1) and 2nd defendant (D2) appealed to this Court which led to the judgment of the Court in HKSAR v Wan Thomas. 4. The Court held, in HKSAR v Wan Thomas, that the appeals of D1 and D2 should be allowed and their convictions quashed. The Court reasoned that on a proper construction of the relevant rules of the Prison Rules (Cap. 234A), D1 and D2 were “friends” of the prisoners whom they visited. Hence, they did not make misrepresentations to the CSD officers as to their relationship to those prisoners. Furthermore, the Court held that there was insufficient evidence at trial to prove that the defendants had agreed together to induce the CSD staff to admit them as visitors nor that they had made any misrepresentation dishonestly. 5. In the light of the Court’s judgment in HKSAR v Wan Thomas, the Appellant applied for leave to appeal to the Court of Final Appeal. On the prosecution’s indication that it was prepared to consent to the application, leave was granted and directions were given for the filing by the parties of a Joint Case. 6. The Court accepted the parties’ joint submission that the Appellant’s conviction was unsustainable as a matter of law for the same reasons that led to the appeals of D1 and D2 being allowed in HKSAR v Wan Thomas. Additionally, of the original nine defendants, five had already had their convictions quashed. Substantial and grave injustice would result from the Appellant remaining convicted. DISPOSITION 7. Accordingly, the appeal was unanimously allowed and the Appellant’s conviction quashed.
1. The Appellant was directed to go through a customs inspection when she arrived at Hong Kong International Airport from Kuala Lumpur. During the inspection carried out in her presence, white powder was discovered in the lining of her suitcase. Tests conducted on the spot revealed that the white powder was heroin and the Appellant was arrested and cautioned. Upon being asked what the white powder was, the Appellant responded orally in Cantonese, “我諗呢一啲係毒品啩”, translated in English as “I suppose this is dangerous drug”. Before the Court of First Instance, whether the Appellant’s response was capable of an admission as to knowledge was left to the jury. The jury convicted the Appellant of trafficking in a dangerous drug. 2. The Court of Final Appeal observed that the Appellant gave her response after her suitcase had been searched in her presence and had heard the drug results of the white powder testing positive. Furthermore, the addition of the “啩” final particle was a non-committal response by the Appellant and was not intended to be an admission of knowledge. 3. The Court concluded that the Appellant’s response was incapable of being an admission. Even if the statement was treated as possibly being an admission, it was so ambiguous that the probative value would be extremely limited and outweighed by risk of unfair prejudice from leaving it to the jury. Thus, the trial judge should have considered exercising his residual discretion to exclude the ambiguous statement as a possible admission. 4. Accordingly, the appeal was allowed and a re-trial ordered.
1. The Appellant offered money to persons associated with localist political organizations as an inducement for them either to stand themselves, or to get others to stand, as a candidate in the 2015 Hong Kong District Council Election. 2. The Appellant was convicted before the District Court of offences relating to corrupt conduct at an election, contrary to sections 6 and 7(1) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554 (“ECICO”). 3. Section 7(1) of the ECICO (“s7(1)”) states that a person engages in corrupt conduct at an election if he/she “corruptly” does specified acts. Such specified acts include the offer, solicitation or acceptance of an advantage as an inducement for a person to, or to get a third person to, stand or not stand as a candidate at an election. 4. The sole issue on appeal before the Court of Final Appeal was the meaning of the word “corruptly” in s7(1), on which the Trial Judge and the Court of Appeal (“CA”) differed in their interpretations. The Trial Judge held that “corruptly” meant that a defendant must intend not only to do a specified act under s7(1), but also to prevent a fair, open and honest election. The CA held that it required only that a defendant intentionally does a specified act which results in personal gain. 5. The Court held that neither interpretation was correct. 6. The Court first observed that section 3 of the ECICO lays down the legislative objectives of promoting fair, open and honest elections, and prohibiting corrupt and illegal conduct in relation to elections. Therefore, conduct that is “corrupt” is intended to mean conduct which is inconsistent with the attainment of fair, open and honest elections. 7. In light of this legislative purpose, the Court held that the word “corruptly” in s7(1) is not a mental element. It does not require proof of specific intent on the part of a defendant to prevent a fair, open and honest election. Instead, it functions to define what amounts to “corrupt conduct at an election” by confining the specified acts in s7(1), which involve the offer, solicitation or receipt of “an advantage”, only to those acts which carry an objective tendency to undermine a fair, open and honest election. A defendant is not necessarily guilty under s7(1) by engaging in any of the specified acts if the act does not have the requisite tendency. 8. The Court concluded that the Appellant was guilty as charged because he intentionally engaged in specified acts under s7(1) “corruptly” in that his conduct involved inducing his co-defendants to stand for election for personal gain in order to divert votes away from targeted candidates with a view to manipulating the election results against them in a way which tended to undermine a fair, open and honest election. DISPOSITION: 9. The Court unanimously dismissed the appeal.
1. The appellant challenged the constitutionality of section 63B of the District Court Ordinance (Cap. 336) (“Section 63B”), contending that it was inconsistent with Article 82 of the Basic Law (“Article 82”) whichvests the power of final adjudication in the Court of Final Appeal. 2. While Article 82 does not confer on litigating parties any constitutional right of appeal to the final court, the Court held that any restrictions on rights of appeal cannot be arbitrarily imposed. 3. Section 63B restricts the right of appeal by expressly providing for finality when leave to appeal is refused, aiming to prevent a class of cases from reaching the Court of Final Appeal. 4. The Court found that the statutory restrictions are justified under a proportionality analysis on the basis that it legitimately aims to screen out cases which have no reasonable prospect of success and also to maintain a balance between litigation costs and the amounts at stake. 5. Thus, the Court found Section 63B both proportionate and constitutionally valid and does not go beyond what is reasonably necessary for the achievement of the legitimate aim. 6. Accordingly, the Court dismissed the appeal.
1. This appeal concerns the Appellant’s counterclaim against the Respondent for damages. The Appellant was appointed a technical representative by the Respondent, an insurance agent, by a contract dated 23 January 2007. On 23 August 2007, the Appellant’s appointment was duly terminated by notice. The Appellant complained that the Respondent had failed to report (1) the termination of his appointment to the Insurance Agents Registration Board (“IARB”) and (2) his Continuing Professional Development (“CPD”) credits to the IARB. 2. Under the relevant provisions of the Code of Practice for the Administration of Insurance Agents (“Code”), an insurance agent should inform the IARB of cessation of appointment of technical representatives within seven days of such cessation, and a person cannot act as a technical representative for more than one insurance agent. The relevant Guidance Note issued by the IARB also provides that an insurance agent is responsible for reporting the technical representative’s CPD credits to the IARB. Should such reporting be not complied with, the technical representative would suffer a mandatory de-registration for three months. 3. The District Court held in favour of the Appellant at trial, but the judgment was reversed on appeal. The Court of Appeal held that there was no actionable breach of statutory duty and that the Respondent owed the Appellant no duty of care at common law. The Court of Appeal also held that the Appellant suffered no loss because he could work as an insurance agent for more than one insurer. The Appellant now appeals to the Court. 4. The Court held that the Respondent owed a tortious duty of care to the Appellant. There was a clear foreseeability of loss to the Appellant in the event of the Respondent’s failure to report the cessation of appointment and the CPD credits. Since the Respondent was assigned a role under the Code to report these matters, and the Appellant relied on the Respondent to perform its role, the Respondent must be taken to have assumed the responsibility to comply with the reporting requirements. In these circumstances, it would be fair, just and reasonable to impose a duty of care on the Respondent. The contract was not inconsistent with the tortious liability and could not exclude the duty of care. 5. The Court also held that the Court of Appeal was wrong to on its own initiative refer to the Appellant’s registration history and take a new point against the clear and uncontradicted evidence at trial that the Appellant could not work before the cessation of his appointment by the Respondent had been reported. The important difference between a technical representative and an insurance agent is that while an insurance agent could work for four principals with the requisite consent, a technical representative could not act for more than one insurance agent. The fact that the Appellant had been an insurance agent for two insurers in the past was therefore not to the point. 6. The appeal was therefore unanimously allowed.
1. The Plaintiff is the mother of the Defendant, her daughter. The case concerned the transfer of a flat and a shop (collectively “the properties”) by the Plaintiff to the Defendant in 1999. The Assignments of the properties showed on their face a purchase by the Defendant of the Plaintiff’s interest in them. The consideration for the shop was said to be $300,000, the consideration for the flat, $500,000. The Plaintiff also signed receipts for these amounts. It was common ground that the Plaintiff did not receive these (or any) amounts from the Defendant. 2. The main issue in the courts below was whether the properties were transferred by way of trust or by way of gift. The Court of First Instance found that the Plaintiff’s intention in making the Assignments was to avoid the threatened actions by the Plaintiff’s husband and not to make a gift of the properties to the Defendant. The legal effect was that the properties were held by the Defendant on resulting trust for the Plaintiff. The Court of Appeal could not fault the Court of First Instance’s analysis of the evidence. 3. The Defendant appealed to the Court under the now repealed “as of right” provision in the Hong Kong Court of Final Appeal Ordinance (Cap 484). 4. The Court held that it did not, save in rare and exceptional cases, review concurrent findings of fact. It was no part of the Court’s function to debate “yet again the factual findings made at first instance and previously reviewed by the Court of Appeal” in the hope on the part of an appellant of finally obtaining favourable findings. Given that the determination of the factual disputes on the evidence was critical to the outcome of the present case and there were concurrent findings of fact before the Court, this appeal was hopeless and amounted to no more than a third attempt by the Defendant to seek to persuade a court to try the case again. 5. The Court held that other legal issues raised by the Defendant were all equally hopeless. 6. Finally, the Court reserved a detailed consideration of the doctrine of the presumption of advancement for another occasion, in particular whether a modern view should be taken of the presumption to include transfers from mother to daughter. 7. Accordingly, the Court unanimously dismissed the appeal with costs.
1. The Taxpayer was Group CFO and executive director of his employer. On 20 July 2008, they entered into a Separation Agreement, terminating the Taxpayer’s employment. The Taxpayer was (i) paid a sum of money (“Sum D”) described as taking the place of a discretionary bonus, and (ii) given share options which ultimately resulted in a gain for the Taxpayer (the “Share Option Gain”). 2. The appellant assessed these two items to salaries tax. The Taxpayer successfully challenged this at the Court of Appeal, having previously lost before both the Board of Review and the Court of First Instance. Issue 3. The issue was whether Sum D and the Share Option Gain were income “from employment” under section 8(1) of the Inland Revenue Ordinance (Cap 112). That provision would include payments that were rewards and/or inducements for past, present or future employment. On the other hand, payments that were for something else were not caught and not chargeable to salaries tax. 4. In relation to Sum D, the Court looked at the substance of the payment to see if it was paid in substitution for a discretionary bonus the Taxpayer might have received as an employee. Where bonuses are concerned, an employer’s results and an employee’s performance are both matters of substance. Since the bonus decision process had not even begun when the Taxpayer was terminated, Sum D was wholly different in nature from any discretionary bonus. It was paid to make him go away quietly, and was the “antithesis” to a reward for past services. 5. In relation to the Share Option Gain, the Court found that the share options had been an acceleration, under the Separation Agreement, of prior share option rights given to the Taxpayer while employed. However, those prior rights were lost upon termination. Without the acceleration, the Taxpayer would never have received anything at all. It was plain from the evidence that the acceleration was not given to the Taxpayer as a reward for past services, but for something else: to make the Taxpayer go away quietly. 6. Generally, the Court distinguished between two situations; sometimes what an employee received was in satisfaction of his rights under his contract, at other times it was in abrogation of those rights. The former was taxable but the latter was not. Considered in terms of abrogation, the Separation Agreement abrogated whatever rights the Taxpayer may have had under his employment contract. He agreed to this in return for what was given to him to make him go away quietly. 7. Therefore, both Sum D and the Share Option Gain were not income from employment, and not therefore chargeable to salaries tax. DISPOSITION: 8. Accordingly, the Court unanimously dismissed the appeal.
The Respondent is a Hong Kong company whose principal business consists of trading in marketable securities quoted in Hong Kong. According to the applicable accounting principles, unrealised gains or unrealised losses on trading stock were recognized in its profit and loss accounts for the relevant periods. For accounting periods where there were such unrealised gains, in computing the assessable profits for profits tax purposes for the relevant period, the Respondent excluded the unrealised gains on trading stock. However, for accounting periods where there were unrealised losses, such losses were taken into account for the purposes of profits tax assessment. The Appellant was of the view that the unrealised gains arising from revaluing the unsold stock should be included in the profits tax assessments and accordingly issued profits tax assessments to this effect (“Tax Assessments”). The Appellant contends that profits tax should be assessed according to the applicable accounting principles, and since unrealised losses were recognized for profits tax purposes in accordance with the applicable principles, unrealised gains should also be recognized for profits tax purposes in accordance with the applicable principles. The Respondent appealed against the Appellant’s Tax Assessments. The question for decision, therefore, is whether for the purposes of profits tax unrealised increases in the value of trading stock held at the end of the accounting period as a result of the revaluation should be included in the computation of “the full amount of the profits…arising in or derived from Hong Kong during the year[s] of assessment”. The Court of First Instance allowed the Respondent’s appeal. Both the Court of Appeal and the Court of Final Appeal affirmed the Court of First Instance’s decision. The Court of Final Appeal held that the Respondent’s financial statements, prepared in accordance with mandatory international accounting standards, record both profits which the taxpayer has realised during the accounting period and which are assessable to tax and increases in the value of its trading stock during the period which represent unrealised profits and are not assessable to tax. In preparing its tax computations, the Respondent was entitled to remove the amounts of its unrealised profits as not chargeable to tax. It is clear beyond argument that accounts drawn up in accordance with the ordinary principles of commercial accounting must nevertheless be adjusted for tax purposes if they do not conform to the underlying principle of taxation enunciated by the courts even if these are not expressly stated in the statue. In particular, principles of commercial accounting must give way to the core principles that profits are not taxable until they are realized and that profits must not be anticipated.