Shuaiqi/CLSum huggingface dataset:
1. The Appellant was charged with one count of tampering with a motor vehicle contrary to section 49 of the Road Traffic Ordinance Cap. 374 (“the Ordinance”). It was alleged that the Appellant, without lawful authority or reasonable excuse, tampered with a door of a light goods vehicle by closing it. 2. The Appellant was convicted after trial and was sentenced to six weeks’ imprisonment. His appeal to the Court of First Instance was dismissed and he 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. The Court disposed of the appeal on the papers and without an oral hearing. 3. The word “tampers” in section 49 is not defined in the Ordinance and is not a technical term. The purpose of section 49 is to deter persons from the acts of getting on to a vehicle or tampering with any part of the vehicle, unless they are done with lawful authority or reasonable excuse. The nature of the acts prohibited indicates that section 49 is designed to afford broad protection to owners and users of vehicles or those who might be affected by their use (such as other road users or passengers). 4. Following the dictionary definition of the word “tamper”, tampering within section 49 means an act constituting either interference or meddling with part of a vehicle so as to cause alteration or harm to it, or the making of an unauthorised change to it. More specific definition was unnecessary for the purpose of the appeal since the word “tampers” may embrace a large range of different acts. 5. The Court concluded that, in the present case, all that the evidence disclosed was that the Appellant closed the door of the vehicle in question. This was a mere act of touching the vehicle and did not result in any alteration or harm to it or change in it. It followed that this could not amount to an act of tampering within section 49 of the Ordinance. 6. Accordingly, the Court allowed the appeal and quashed the Appellant’s conviction.
1. In January 2008, the Appellant entered into a contract of marine insurance (the “Contract”) with the Respondent in respect of the shipment of a cargo of logs from Malaysia to the PRC. The relevant carrying vessel, as identified in the Contract, was “MV Ho Feng No.7” (the “Vessel”) and the amount insured was USD1,555,209.00. The Contract contained a clause warranting that the deadweight capacity of the carrying vessel was not less than 10,000 tonnes (the “Deadweight Warranty”). 2. In or about mid-January 2008, the Vessel sank and the cargo of logs was totally lost. The Appellant’s claim for the insured value was rejected by the Respondent on the basis that the Appellant was in breach of the Deadweight Warranty – the Vessel only had a deadweight capacity of about 8,960 tonnes. 3. The Court held that the Respondent was not prevented from relying on the Deadweight Warranty. To begin with, the Court saw no inconsistency in the Contract between the identification of the Vessel and the existence of the Deadweight Warranty. Moreover, though a party’s knowledge may, in appropriate circumstances, result in some form of waiver on estoppel being applicable, there was no evidence to support a finding that the Respondent had actual knowledge of the Vessel’s deadweight capacity. 4. Accordingly, the Court held that the Deadweight Warranty was breached and unanimously dismissed the appeal.
1. The Appellant was a cross-border truck driver. On 21 June 2010, while he was driving a truck from the Mainland into Hong Kong, it was discovered that his cargo contained goods to which forged trademarks were applied and goods which were not included in the manifests submitted by him. He was arrested and charged with importing (a) goods to which a forged trademark was applied; (b) an infringing copy of a copyright work into Hong Kong without licence or exemption; and (c) unmanifested cargo. 2. Upon arraignment before the Magistrate on 9 June 2011, the Appellant, represented by counsel, pleaded not guilty to each of these charges and the case was adjourned to 18 August 2011 for trial. On the date of the trial, the Appellant, represented by the same counsel, pleaded guilty to all charges and was convicted. The case was then adjourned for three weeks for background and community service order reports to be obtained before sentencing. 3. At the resumed hearing on 8 September 2011, the Appellant applied to change his plea to not guilty and to adjourn the hearing for 7 days for him to instruct a new counsel. The Magistrate believed that it was a delaying tactic and refused the application. He sentenced the Appellant to 6 months’ imprisonment. After serving his term of imprisonment, the Appellant appealed against his conviction. The appeal was uncontested and the parties filed joint written submissions. 4. The Court of Final Appeal reiterated the principle that, where a defendant applies to change his plea from guilty to not guilty, a magistrate must make sufficient inquiries to ascertain the basis of the defendant’s wish to reverse his plea and to decide if that basis is sound in fact and in law. As the Magistrate failed to make sufficient inquiries before refusing the application to change plea, the Court allowed the appeal and quashed the Appellant’s conviction. 5. In ordinary circumstances, the appropriate disposition where there has been a failure to make proper inquiry is an order remitting the matter to a magistrate to inquire into that application. In the present case, the Court did not remit the matter to a magistrate because there had been a lapse of nearly three years since the original plea and the Appellant had already served his sentence. 6. The Court also provided some guidance as to the practice and procedure to be adopted in future uncontested appeals (civil and criminal).
1. The Appellant worked for a private equity fund known as SAIF Partners (the“Fund”). The Fund was administratively structured by a series of superimposed Cayman Islands Exempted Limited Partnerships. The Appellant was a limited partner in one such partnership called SAIF Partners II LP, which was the 1st Respondent. 2. Although under Cayman law, the Appellant did not generally owe fiduciary duties, it was held by the trial judge in the Court of First Instance (the “CFI”) that he owed such duties in the present case by reason of a partnership agreement entered into between the Appellant and the other partners in the 1st Respondent. Such partners included the 2nd Respondent. The trial judge found that the Appellant owed duties to the other partners to act in the interests of the 1st Respondent and not to make a personal profit from investment opportunities which were available to the Fund. 3. It was found by the CFI that the Appellant breached his fiduciary duties by diverting a business opportunity in a PRC technology company (dealing with internet advertising) to a company in which he had a personal interest. This led to an order made against the Appellant to disgorge profits he had made and to be accountable for such to the 1st Respondent. 4. However, the trial judge was of the view that since the 1st Respondent was itself a trustee and accountable to the investors of the Fund down the chain of limited partnerships, in order to avoid “over-recovery” by the Respondents, it was ordered that the profits disgorged by the Appellant would be held on trust for the Fund. This order was upheld by the Court of Appeal. 5. The issue on appeal to the Court of Final Appeal was whether the Respondents were able to sue on behalf of other parties when those parties were not joined in the action nor had they given any authority to be represented by the Respondents. 6. The Court held that the trial judge’s order was in error. The 1st Respondent was not suing on behalf of anyone else. The 1st Respondent was asserting its own cause of action based on the fiduciary duties owed to it by the Appellant. These duties were owed by the Appellant to the Respondents and to no one else, and he was accordingly liable to account to the 1st Respondent for profits. The 1st Respondent had in its own right a complete cause of action for an account of profits. There was no question of over recovery. The fact that the 1st Respondent may be liable to account to other parties was a matter between it and the Fund, and was not relevant to the liability of the Appellant. DISPOSITION 7. The appeal was therefore dismissed.
1. The Appellant was convicted of a charge of burglary in the District Court and sentenced to three years’ imprisonment. He applied before the Court of Appeal for leave to appeal against conviction and sentence. The application was dismissed by a single Justice of Appeal, Macrae JA. The Appellant renewed his application for leave but this was also dismissed by a panel of three judges in the Court of Appeal which included Macrae JA. 2. The question on the present appeal is: may a single Justice of Appeal, who refused leave to appeal to the Court of Appeal, lawfully sit as a member of the panel on a renewed application for leave to appeal? 3. Under section 34A(2) of the High Court Ordinance, Cap 4 and section 83Y(3) of the Criminal Procedure Ordinance, Cap 221, a single Justice of Appeal has the power to grant leave to appeal. Should the application for leave be dismissed, the applicant is entitled to have the application determined by the full court. 4. The context for construing this statutory right of criminal appeal includes the rights to a fair and public hearing by a competent, independent and impartial tribunal, and to review one’s conviction and sentence by a higher tribunal, under the Hong Kong Bill of Rights Ordinance, Cap 383. 5. On a purposive construction, a renewed application is not an appeal from the single judge’s decision but instead a further hearing of the same application which will lead to a final determination. This statutory process provided a genuine power of review, since the single judge may change his mind upon the rehearing. The full Court of Appeal benefited from the single judge’s reasons for provisionally refusing the initial application. The other two members also form a majority which could overrule the single judge. 6. All judges are subject to the rules of disqualification for actual or apparent bias. The latter depends on whether a fair-minded and informed observer would conclude that there was a real possibility that the tribunal was biased. It is by the application of the rules concerning disqualification for bias that the existence of an independent and impartial tribunal is ensured. 7. In the ordinary judicial reconsideration of an issue such as leave to appeal or a bail application, the observer would not consider there to be a real possibility of bias. He is aware of the qualities of a judge, the essential characteristics of the judicial process, and the judicial oath which judges generally try to live up to. He will expect that a single judge who has previously refused leave to appeal will hear the renewed application with an open mind, and consider the arguments advanced to the full court and the deliberation of his judicial colleagues. 8. Although apparent bias might arise in an individual case depending on its particular circumstances, in the circumstances of the present case the fair-minded and informed observer would not think there was any risk that Macrae JA was biased when he sat on the Court of Appeal hearing the renewed application for leave. 9. Accordingly, the Court dismissed the appeal.
1. The Appellant was a chef who operated a restaurant. He was accused of assaulting an inspector of the Environmental Protection Department (“EPD”), contrary to section 40 of the Offences Against the Person Ordinance (Cap.212) (“the Offence”). 2. At trial, Magistrate Debbie Ng (“the Magistrate”) accepted the evidence of the two EPD officers (“the EPD Officers”) and disbelieved the Appellant. Accordingly, the Magistrate convicted him of the Offence. Deputy High Court Judge Gary Lam (“the Deputy Judge”) dismissed the appeal against conviction. Before this Court, the Appellant argued that the Magistrate’s conduct of the trial and treatment of the evidence had denied him a fair trial. 3. Since the Appellant was unrepresented at trial, it was incumbent on the Magistrate to assist him in the conduct of his defence and to conduct the trial fairly and impartially. It was also incumbent on the Magistrate to address and explain material inconsistencies in the evidence of the EPD Officers. 4. In the present case, there were several discrepancies in the evidence of the EPD Officers, including when the Appellant left the kitchen and when he allegedly committed the Offence. The Magistrate did not address those differences. The Deputy Judge held that those differences did not cast doubt on the credibility and reliability of the EPD Officers. 5. The Court held that, since the Appellant’s only defence was an outright denial of the evidence of the EPD Officers, those inconsistencies were material. The Magistrate’s failure to address those inconsistencies and assist the Appellant in putting those inconsistencies to the EPD Officers, together with her conduct of questioning the Appellant when she was assisting him to cross-examine the EPD Officers, had denied the Appellant a fair trial. DISPOSITION: 6. Accordingly, the appeal was unanimously allowed.
1. The appellant pleaded guilty to two offences of possession of dangerous drug, being possession of 0.85 grammes of cocaine inside 3 plastic bags at a bar in Lamma Island (“1st Charge”) and possession of 1.05 grammes of cannabis resin and 5.63 grammes of cocaine at home (“2nd Charge”). The Deputy District Judge found there is latent risk, also known as risk of dissemination, which refers to the risk of the drugs being passed on to others. He increased the starting points of sentencing for both charges by 3 months. The appellant was eventually sentenced to 6 months imprisonment on the 1st Charge and 10 months imprisonment on the 2nd Charge to be served concurrently. 2. The Court of Appeal dismissed the appellant’s appeal against the uplift of 3 months on each sentence. The appellant argued that the latent risk sentencing principle is unconstitutional since it imputes to a person convicted of a possession offence an unproven propensity to commit the more serious offence of trafficking. The Court of Appeal held that the Deputy District Judge is correct to take into account as an aggravating factor the risk to society of drugs being redistributed and finding their way into other hands apart from the offender’s. There has not been an imputation of an intention to traffic the dangerous drugs on the part of the appellant. 3. The Court of Final Appeal affirmed the Court of Appeal’s approach and dismissed the appeal. It is held that the risk of dissemination of drugs depends on the drawing of the correct inference from the circumstances of possession as established on evidence. It is a matter of common sense in judging whether the risk of dissemination is real in each case. If a judge is minded to enhance sentence on the basis of risk of dissemination, he must forewarn counsel for the accused so that the accused may challenge the issue. Judges are also reminded not to sentence those accused of a possession offence for an unproved intention to traffic drugs. 4. The Court of Final Appeal confirmed that this approach to latent risk does not in any way contravene the presumption of innocence.
The appellant is a married man who met the respondent, a masseuse, at a massage establishment in Jordan in 1998. They were involved in a “romantic” relationship between late 2004 and October 2007. The appellant claims he has made a total of 178 loans to the respondent between January 2005 and October 2007 and he seeks to recover a sum of HK$3,197,701 in this action. The respondent claims that the money has been given to her as gifts, that the appellant has asked her to give up her job and that he would look after her. The appellant produced an Acknowledgment of Debt for HK$1,000,000 and certain taped conversations to support his case. His claim was dismissed by the Court of First Instance as the judge was not fully satisfied with the evidence of the appellant or the respondent. He held that the monies might have been paid to the respondent as gifts, joint investment or loans and not necessarily just loans. Both the Court of Appeal and the Court of Final Appeal dismissed the appeal. On the treatment of evidence, the respondent said the appellant tried to persuade her to sign some documents similar to the Acknowledgment of Debt but she refused. The appellant was actually under pressure at that time to repay his borrowings from the company which he owns together with his wife’s cousin. Despite the financial pressure, the appellant wrote the respondent a love letter after the present action was commenced. The Court agreed with the Court of Appeal and the Court of First Instance that given the circumstances, the appellant’s evidence regarding the Acknowledgment of Debt is not satisfactory and no weight should be placed on it. The Court also noted that despite the numerous loans that the appellant relied on, there was a lack of clear evidence from the taped conversations he produced that there was any request for loan by the respondent or making of a loan by him. The Court held that the relationship between the appellant and the respondent would not give rise to a presumption that a transfer of property was intended to be a gift, unlike that between a married couple or parent and child (known as “presumption of advancement”). However, the proper inference to draw from the circumstances of this case is that all the payments were gifts.