Shuaiqi/CLSum huggingface dataset:
Background 1. In 2014, the Court of First Instance (“CFI”) granted Designing Hong Kong Ltd. (“DHKL”), a Hong Kong non-profit company, leave to apply for judicial review in respect of a decision by the Town Planning Board (“the TPB”). DHKL also applied for a Protective Costs Order (“PCO”), so that it would be protected from paying the costs of the TPB in the judicial review proceedings in case DHKL lost, or, alternatively, that any costs awarded to the TPB would be limited to HK$10,000. The present proceedings were about whether a PCO should be granted. 2. In support of the application for a PCO, the CEO of DHKL explained that it had insufficient funds in its bank account, had difficulty in raising money from its shareholders, directors or outside sources and that if no PCO was made, it would be unable to meet both its own costs and the TPB’s and would not be able to continue the judicial review proceedings. 3. The CFI refused DHKL’s application on the basis that it did not fully disclose the financial resources available to it, including the financial position of its shareholders or directors and so failed to show that it was genuinely not in a position to bear the costs of the TPB if the judicial review should fail. The refusal to grant a PCO was upheld by the Court of Appeal. Decision of the Court of Final Appeal 4. The Court held that the burden is on an applicant for a PCO to provide details of its financial ability to bear the likely costs of the other side should an adverse order be made against it. In examining financial ability, it is legitimate, where the applicant is a corporation, to inquire not only as to assets belonging to the company, but also to other sources of funding to which the company would have access. 5. The Court further held that whether or not it is appropriate to look at the financial ability or resources of the shareholders, directors or other supporters of a company depends on the circumstances of any given case. It is also important to look at the underlying realities of the company’s financial position and to adopt a common sense view of the matter. If it is appropriate to look at the financial ability or resources of such persons but they refuse to make disclosure, the court is entitled to inquire as to the reasons for the refusal. 6. In the present case, as a matter of overall fairness and justice, a PCO should not be granted. The position of the directors and the CEO, despite being the main driving forces of the present litigation, was that their personal wealth was irrelevant: they were unwilling to contribute any money towards the costs of the litigation. By reason of their unwillingness to provide details of their financial ability, it was assumed that they had the means to finance the litigation and meet DHKL’s obligations regarding costs, but are unwilling to do so and choose effectively not to do so, preferring instead to litigate by using a limited liability and under-resourced company. Further, it cannot be said that there is no prejudice to the TPB, even though it is funded by the public purse, in the event it is unable to recover its costs. 7. Accordingly, the appeal was dismissed.
1. The appellant challenged the constitutionality of section 39(2A) of the Legislative Council Ordinance, Cap 542 (the “LCO”), which affects the right to stand for election as contained in Article 26 of the Basic Law and Article 21 of the Hong Kong Bill of Rights. Section 39(2A) barred a legislator who resigned from the Legislative Council from standing in the by-election within 6 months of resignation. 2. It was accepted by all parties that the right to stand for election is not an absolute right, and that therefore the proper approach in determining the constitutionality of section 39(2A) was the proportionality analysis. 3. Electoral laws that involve political or policy considerations ought generally to be accorded a wide margin of appreciation, as the Courts are generally not equipped to determine political questions. Consequently, the appropriate intensity of review regarding section 39(2A) should be the “manifestly without reasonable foundation” test. 4. Section 39(2A) fell within the range of reasonable options open to the Legislature to adopt in order to deal with the perceived mischief of the undermining of the electoral system by legislators resigning in order to cause a by-election in which they would stand. The encroachment on the constitutional right to stand for election was a relatively small one, as it only applied to by-elections and the bar was solely against the resigning member who was perfectly entitled to stay in office as a legislator if he or she had wanted to. Even then, the bar was only for six months. 5. Thus, the Court found section 39(2A) to be proportionate and constitutionally valid. 6. Accordingly, the Court dismissed the appeal.
1. The Appellant (“Husband”) and the Respondent (“Wife”) are German nationals. The Wife has lived in Hong Kong since 1997 and is a permanent resident. They were married in Hong Kong and during their short marriage they lived here. Prior to their marriage, they executed an ante-nuptial agreement varying their matrimonial property rights under German law. Before the Wife commenced divorce proceedings in Hong Kong, they also executed a separation agreement restricting her rights to claim maintenance. The Husband applied to stay the Hong Kong proceedings in favour of divorce proceedings in Germany on the ground of forum non conveniens. His stay application was allowed at first instance but subsequently dismissed by the Court of Appeal. The Husband appealed to the Court of Final Appeal. 2. This appeal involves the potential impact of ante-nuptial and separation agreements in Hong Kong; such agreements were once considered at common law to be contrary to public policy because they ousted the jurisdiction of the court to grant ancillary relief. The Court approved the decision of the Hong Kong Court of Appeal in L v C [2007] 3 HKLRD 819 which decided that, although separation agreements did not override the powers of the court to grant ancillary relief, they carried considerable weight in relation to the exercise of the court’s discretion when granting such relief. Following recent developments in the United Kingdom, the Court decided that ante-nuptial agreements entered into by a couple to regulate their financial affairs in the event of their separation are no longer contrary to public policy. The courts should give weight to these agreements in circumstances where it would be fair to do so. 3. In relation to the stay application, the Court held that the existence of an ante-nuptial and separation agreement under German law was plainly a factor in the exercise of the discretion to stay on the ground of forum non conveniens. Apart from the agreements, however, the real and substantial connection of the parties with Hong Kong was overwhelming. The Judge at first instance failed to give appropriate weight to the factors connecting the parties, the marriage, and the matrimonial home with Hong Kong and, therefore, the Court of Appeal was entitled to interfere with the Judge’s exercise of discretion. The Court dismissed the appeal accordingly.
1. These proceedings concern the beneficial ownership of 200 million shares in Mayer Holdings Ltd, a listed company in Hong Kong (“Mayer HK”). The rival claimants were Mayer Corporation Development International Ltd (“Mayer BVI”) and Aspial Investment Ltd (“Aspial”) and Bumper East Ltd (“Bumper”). 2. The shares were represented by two share certificates, each for 100 million shares registered in the name of Mayer BVI. The share certificates together with instruments of transfer signed in blank were held by Alliance Financial Intelligence Ltd (“AFIL”) under a Custodian Agreement signed by the managing director of AFIL and the sole director of Mayer BVI. 3. Aspial and Bumper’s case was that they purchased the shares from Capital Wealth Finance Company Ltd (“Capital Wealth”), of which Mr Lam Chin Chun was the CEO. Capital Wealth was authorized to sell these shares by Mayer BVI. 4. Mayer BVI’s case was that AFIL was guilty of a breach of its fiduciary duties owed to Mayer BVI in respect of the certificates which Mayer BVI had deposited with AFIL under the Custodian Agreement, that Charles Chan Wai Dune and Lam Chin Chun dishonestly assisted AFIL in its breaches of fiduciary duty, and that Aspial and Bumper received the share certificates with notice of AFIL’s breaches of fiduciary duty. 5. The Court of First Instance held that Aspial and Bumper are the beneficial owners of the shares. The Court of Appeal upheld the decision of the Court of First Instance. The Court of Final Appeal held that it is settled practice not to review concurrent findings of fact save in rare and exceptional circumstances. Nor would the Court embark on such a review unless it was persuaded that it would be purposeful to do so. The Court of Final Appeal heard arguments on whether it would be purposeful to embark on such a review and decided that there was no reason to permit such a review. Accordingly, the appeal was dismissed. 6. The Court of Final Appeal made a costs order nisi against the Appellant on an indemnity basis.
1. Facts: The Appellant agreed with the Respondent to give ownership of the top floor and the rooftop (“the Property”) to the Respondent in exchange for constructing a village house. 2. The contract granted a right to repurchase the Property to the Appellant upon obtaining a Certificate of Compliance. The manner of communicating the decision to repurchase was not specified. 3. The Certificate of Compliance was issued on 23 October 2007. On 16 November 2007, the Respondent’s wife wrote to the Appellant stating he had one month from that day to exercise his repurchase right. It was accepted that on 16 December 2007, the Appellant’s mother verbally stated they wished to repurchase the Property. 4. However, disagreements regarding the original valuation of HK$2.44 million arose as the Respondent had received an offer of HK$3.2 million for the Property and wanted the same amount from the Appellant. After some correspondence, on 11 October 2008, the Appellant wrote to withdraw his exercise of the repurchase right but did not transfer the Property. By letter of 22 October 2008, the Respondent asked for the transfer of the Property. 5. The Respondent sued for vacant possession and transfer of the Property to himself and succeeded. The Appellant was also ordered to pay interest on the cost of construction. The Court of Appeal upheld the decision, holding that although the Appellant had an option instead of a pre-emptive right, and that such option was validly exercised by oral communication, the Appellant’s letter of 11 October 2008 amounted to a repudiation which was accepted by the Respondent’s letter of 22 October 2008. 6. The Appellant was granted this appeal as of right under section 22(1)(a) of the Court of Final Appeal Ordinance as the sum in question exceeded HK$1,000,000, but the appeal was unanimously dismissed. 7. The court rejected the Appellant’s argument that the original agreement giving title in the Property to the Respondent had been supplanted by a new agreement when the option was validly exercised, extinguishing the Respondent’s rights under the original agreement and replacing it with a debt for $2.44 million. The option hinged upon the Respondent having a property right from the original agreement to sell. The court held that even if the option had been duly exercised and resulted in a binding contract, when the contract was repudiated, the Respondent was entitled to either enforce this binding contract or keep the property, and the Respondent had chosen the latter option.
1. The Appellant was convicted after trial of two counts of trafficking in a dangerous drug. Evidence against the Appellant included statements made by the Appellant to the police. 2. At a preliminary hearing, Counsel for the Appellant argued that those statements should not be admitted into evidence because the police had subjected the Appellant to physical violence and threats. A number of police officers gave evidence, and they all denied allegations that the Appellant had been assaulted or threatened. Certain officers, who were involved in arresting the Appellant, were cross-examined about a separate police operation (“the Separate Operation”), it being put to them that similar violence had been used against a suspect named Wong. The officers denied having seen any violence being used during the Separate Operation. 3. Counsel for the Appellant sought to call Wong as a witness regarding the circumstances of the Separate Operation. The application was refused by the trial judge, who also decided that the contested statements made by the Appellant would be admitted into evidence. 4. Before the Court of Final Appeal, Counsel for the Appellant argued that the trial judge should have permitted Wong to give evidence. 5. However, the Court held that the trial judge was right to refuse to admit Wong’s evidence: (1) If Wong’s evidence was relevant only to the credibility of the police officers, a legal rule applied which prevented evidence being admitted to rebut the answers given by the officers under cross-examination; and (2) Further, although evidence could sometimes be admitted to show that the police acted in a similar way on other occasions, there was insufficient justification for admitting Wong’s evidence in the present case. Other than the fact that gratuitous violence was alleged to have been used in both the Appellant’s case and the Separate Operation, there were few similarities between the two occasions.
1. The Appellant was convicted by the Magistrate for breaching its statutory duties in relation to ensuring the health and safety of its workers under section 6A of the Factories and Industrial Undertakings Ordinance (Cap. 59) (the “Ordinance”). 2. The Appellant was the proprietor of the industrial undertaking operating on a construction site. Four workers were involved in a lifting operation; a crane operator (PW1), two signalmen (PW2 and the deceased), and another. In the course of the operation, PW2 gave the signal to the crane operator to slew the crane without communicating with the deceased as to whether it was safe to do so. As a result, the deceased was crushed by the swivelling crane and killed. 3. The Appellant’s defence was that the accident was caused by the negligence of the deceased as he had placed himself in a dangerous position and it was his responsibility to signal to the crane operator if it was not safe to operate the crane. The Magistrate rejected this defence and convicted the Appellant for failing to take all reasonably practicable steps in providing a safe system of work and failing to provide necessary instruction to ensure the health and safety of its workers as required by section 6A of the Ordinance. 4. The Court of First Instance upheld the conviction and held that it was a reasonably practicable requirement to require both the deceased and PW2 to confirm that it was safe to slew the crane before it was moved. The Appellant had given no instructions to implement such a requirement despite having knowledge of the safety risks. 5. The Court of Final Appeal held that the duty under section 6A to ensure safety, so far as is reasonably practicable, extends to protecting workers who fail to take reasonable care of their own safety. Although section 18 imposes the legal burden on the prosecution, it is not unfair to require the proprietor to show that he could not have done more to prevent the risks he created. However, a safe system does not require the elimination of every conceivable risk. In considering reasonable practicability, a court may balance the likelihood of risk against the cost, time and trouble necessary to averse it. 6. The Court of Final Appeal found no error in the Court of First Instance’s examination of whether the system adopted by the Appellant was safe, so far as was reasonably practicable. Accordingly, it upheld the judgment of the Court of First Instance and the appeal was unanimously dismissed.
1. The appellants were convicted after trial in the High Court and were sentenced to various terms of imprisonment. The appellants applied for extensions of time to give Notice of Application for leave to appeal against their sentences (“Applications”). 2. The Applications were dismissed by the Court of Appeal, where the Court also ordered under section 83W(1) of the Criminal Procedure Ordinance, Cap 221 (“Ordinance”) that two months of the time during which the appellants were in custody pending the determination of the Applications should not count towards the term of their sentences (“Loss of Time Order”). 3. The only issue in this appeal is whether the Court has power under section 83W(1) to make a Loss of Time Order in such circumstances. The appellants argued that section 83W(1) only covers a person who is entitled to appeal as of right or is applying for leave to appeal, but not a person applying for an extension of time. 4. The issue was one of statutory construction and the court would construe section 83W(1) according to its context and purpose. The Court held that an application for extension of time is still an application for leave to appeal because in practice, both applications entail a consideration of the merits of the intended appeal. Construed in accordance with its context and purpose, there is no reason why the power to order loss of time should not extend to an application for extension of time. 5. Accordingly, the appeals were dismissed.
1. BIC sued WYD for repayment of loans totalling HKD 100,676,120 and WYC for repayment of a loan of HKD 1,793,700 (together “the WY Parties”). Alternatively, BIC claimed that the money should be returned to it under the principle of unjust enrichment. 2. It was not disputed that the WY Parties had received the money. However, their defence was that the money was not advanced as loans, but was payment under fund exchange agreements (“FEAs”) to exchange Hong Kong dollars for Renminbi by mutual loans. 3. The Court of First Instance found that there were considerable doubts as to the evidence presented by both sides. BIC had failed to prove its case that the money was advanced as loans. But the WY Parties had also failed to prove their defence based on FEAs. The Court of First Instance also held that the claim for restitution based on unjust enrichment must fail. It held that, BIC’s claims had to be dismissed. 4. The Court of Appeal dismissed BIC’s appeal. 5. On appeal, this Court found that on the facts, the judge was right in rejecting BIC’s case and that he ought moreover to have found in favour of the defence based on the FEAs. 6. Second, this Court held that the lower courts were right in holding that BIC had failed to discharge the burden of proving the money was advanced to the WY parties as loans. It declined to adopt the position stated in certain English cases in favour of presuming an implied obligation to repay from the fact of payment to a stranger. 7. Finally, the Court confirmed that the correct approach to establishing a restitutionary claim, as laid down by existing Hong Kong decisions, involves the payer showing an unjust factor which makes retention of the benefit by the payee unjust enrichment.
1. The police have pursuant to a search warrant issued by a magistrate obtained from a hospital certain medical records relating to the applicant. The applicant seeks a declaration that the police’s refusal to produce the warrant to her is in breach of Article 35 of the Basic Law and Article 2(3) of the International Covenant on Civil and Political Rights. 2. This application for judicial review raises the narrow question of whether the fact that the search warrant has not been produced to the applicant has effectively obstructed her right of access to the courts. It is not about whether the police should have applied for the warrant, or whether the magistrate should have granted the warrant, or whether the warrant should be set aside. 3. The applicant does not have a free‑standing right to the production of the warrant on demand either under statute or common law. There are existing mechanisms in the law for the applicant to seek, on proper grounds, production of the warrant in the context of actual or intended proceedings to impugn it. The applicant has so far not utilised these mechanisms. There are legal avenues potentially open to the applicant for impugning the validity of the warrant and not only for recovering damages, which the applicant has so far not utilised. The fact that the respondent has not produced the warrant to the applicant on demand does not mean her right of access to the courts has been infringed. Accordingly, the application for judicial review is dismissed with costs, with the applicant’s own costs being taxed in accordance with the Legal Aid Regulations.
1. The Appellant was convicted after trial in the District Court of 5 charges, including one count of indecent assault that allegedly took place on 5 August 2005, the subject charge of this appeal. This charge arose from a complaint by the Complainant (“Miss X”) that on 5 August 2005 between 12 p.m. and 3 p.m., the Appellant took her to an hourly hotel and indecently assaulted her inside a hotel room, and took some 10 naked photographs of her. 2. The Appellant did not give evidence, but relied on an alibi given by his brother-in-law (“DW1”) who testified that on 5 August 2005, he was in the hospital visiting the grandfather of his wife (then girlfriend) from 12:30 p.m. to 2 p.m.. The application to produce alibi evidence was served after Miss X had given evidence under cross-examination. 3. At trial, the judge rejected the alibi evidence; he found Miss X a credible witness and accepted her evidence. The Appellant was convicted and sentenced to two years’ imprisonment on this particular charge. Both the Court of Final Appeal (the “CFA”) and the Court of Appeal upheld the judge’s decision. 4. The crux of this appeal concerned whether the judge had properly considered the alibi evidence given on behalf of the Appellant. 5. The Appellant argued that the judge was wrong to attach little or no weight to the alibi evidence solely on the ground that the alibi notice was filed late. This was rejected by the CFA. It was held that when the judgment is read as a whole and the paragraphs construed in context, it is clear that the lateness of the alibi notice and the absence of explanation was not the main, let alone the sole, reason for the judge’s rejection of the alibi evidence. The CFA noted that although the lateness of the alibi notice and lack of satisfactory explanation for the delay are relevant factors when considering the weight of the alibi, what is of greater importance is the cogency of the Prosecution evidence and the quality of the alibi evidence, which the judge had rightly considered and dealt with in his judgment. 6. The Appellant also argued that as it was not directly put to the DW1 during his cross-examination that his evidence was being challenged, DW1 was deprived of the opportunity to explain the delay of the alibi evidence. However, the CFA found that it must have been quite plain to DW1 from the way he was cross-examined that his evidence was being tested. The CFA further held that the judge accepted Miss X’s evidence only after he had considered all the evidence, including the alibi evidence, and found that Miss X was telling the truth.