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+1. The 1st Defendant, Young Bik Fung (“Betty”), was a solicitor in the employ of Slaughter and May (“SANDM”). The 1st Appellant, Lee Kwok Wa (“Eric”) was also a solicitor. He was Betty’s good friend and one-time lover. The 2nd Appellant, Lee Siu Ying Patsy (“Patsy”) and the 3rd Appellant, Lee Siu Fung Stella (“Stella”) are Eric’s sisters. 2. In April 2006, Betty was sent by her employer to Standard Chartered Bank (HK) Limited (“SCB”) on secondment to work on SCB’s intended takeover of Hsinchu International Bank Co Ltd (“Hsinchu Bank”). Hsinchu Bank was a company listed on the Taiwan Stock Exchange. In the course of such work, Betty learned of the impending takeover offer and the proposed price of the offer. This information was inside information. 3. In breach of her duties to her employer and SCB, Betty shared the inside information with Eric. They then arranged for Patsy to open a new securities account in Hong Kong with Tai Fook Securities Co Ltd (“Tai Fook”). Between 22 and 29 September 2016, Patsy placed purchase order for substantial shares in Hsinchu Bank via Tai Fook on the behalf of Betty, Eric and Stella using the purchase money contributed by all four of them. The instruction was relayed to an intermediary in Taiwan where the purchase of securities took place. On 29 September 2016, the takeover offer was announced. Betty and the appellants accepted the offer via Tai Fook, netting substantial profits. 4. The Securities and Futures Commission (“SFC”) commenced proceedings against Betty and the appellants in the Court of First Instance. The Court of First Instance found that they have misused the inside information in the dealings in Hsinchu Bank shares to obtain personal profits without the consent of SANDM and SCB. Accordingly, the Court of First Instance found that Betty, Eric and Patsy were culpable of employing fraudulent or deceptive devices in transactions involving securities under section 300 of the Securities and Futures Ordinance (“SFO”). While the Court of First Instance found that Stella did not contravene s 300, she was involved in the contravention and thus was liable to return her profits. 5. The appellants appealed to the Court of Appeal. One of the appellants’ arguments was that the word “transaction” under s 300 does not include conduct that occurred before the purchase and sale of securities, such as the opening of the securities account by Patsy in Hong Kong. Furthermore, it was argued that s 300 does not cover the purchase and sale of the Hsinchu Bank shares which took place outside Hong Kong. Therefore, the appellants could not have contravened s 300. 6. Additionally, the appellants argued that in order for their conduct to be regarded as occurring “in a transaction involving securities” for the purpose of s 300, the fraud must have been practised on the counterparty of either the purchase or the sale of the securities. It was argued that when the shares were purchased, the vendors of the Hsinchu Bank shares were not defrauded. Nor was there deception in the sale of the shares as the information about the takeover offer had ceased to be inside information by the time the sale took place. Therefore, there was no deception “in the transaction involving securities”. 7. The Court of Appeal rejected both arguments and affirmed the decision of the Court of First Instance. The appellants brought a further appeal to this Court. 8. The central questions in this appeal turn on the construction of s 300. Firstly, whether the word “transaction” in the context of s 300 of the SFO should be widely interpreted to include conduct which took place before the purchase and sale of securities. Secondly, whether any fraudulent or deceptive acts have occurred “in a transaction involving securities”. 9. The Court held that the word “transaction” should be interpreted by the context and purpose of s 300. S 300 is a general provision that outlaws fraudulent conduct in securities transactions. Adopting this approach, the word “transaction”, for the purpose of s 300, must be given a wide meaning. 10. In the present case, it includes a series of purchases and sales of Hsinchu Bank shares and the steps that were taken with a view to profit or avoid loss by misusing inside information, such as the opening of the securities account and the giving of instructions for the purpose of trading in securities. 11. Additionally, the Court held that in the present case, there was fraud on SCB “in a transaction involving securities” in respect of the appellants’ misuse of the inside information for personal gain. 12. Moreover, insider dealing is a species of fraud. It is a fraud on the public and not a victimless crime. Since it is undisputed that the appellants would have contravened s 291(5) of the SFO for inside dealing but for the fact that Hsinchu Bank shares were not listed in Hong Kong, their conduct amounted to a species of fraud which comes within s 300. Given that substantial activities constituting the complaint under s 300 occurred in Hong Kong, the appellants’ conduct is covered by s 300. CONCLUSION: 13. Accordingly, the appeal was unanimously dismissed. 
+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. By a notice of motion dated 4 September 2017, the 2nd respondent applied to the Court of Appeal for a certificate that the following points of law of great and general importance were involved in the Court’s judgment handed down on 17 August 2017 (“Judgment”) to enable him to obtain leave to appeal to the Court of Final Appeal : “ (1) Whether on an application by the Secretary for Justice for review of sentence pursuant to section 81A of the Criminal Procedure Ordinance (Cap 221), the Court of Appeal has the power to make any factual findings not made at the trial or contrary to findings made by the trial judge, where by reason of or in consideration of the same the sentence is increased? (2) If the Court of Appeal has such power, under what circumstances and to what extent should the Court of Appeal exercise such power?” 2. By a notice of motion dated 27 September 2017, the 3rd respondent applied to the Court of Appeal for a certificate that the following points of law of great and general importance were involved in the Judgment to enable him to obtain leave to appeal to the Court of Final Appeal : “ In a Secretary for Justice’s sentence review application under section 81A of the Criminal Procedure Ordinance, is it correct that the Court of Appeal does not have the power to make any factual findings adverse to the defendants different from or in addition to those made by the tribunal of fact at trial?” 3. For the reasons set out below, the Court dismissed both applications : 3.1 It is well established by both Hong Kong and English appellate authorities that : (1) On an application for review of sentence, the Secretary for Justice is not entitled to change the factual basis for sentence that it had relied on at trial and ask the Court of Appeal to inquire into facts which had not been pursued below. Even if the sentencing court had proceeded on a wrong factual basis for sentence, it is not open to the Secretary for Justice to make such an assertion before the Court of Appeal if the prosecution had the opportunity to have it corrected at trial but they had not sought to do so. The Court of Appeal will adopt the same factual basis as it was before the sentencing court. (2) Subject to (1), where the ground for review is that the sentencing court acted on an erroneous factual basis, the Court of Appeal is entitled to examine the evidence adduced below to consider if, based on the facts proved, admitted or not in dispute, the sentencing court did make the error as asserted by the Secretary for Justice. If so, the Court of Appeal is entitled to correct the factual error and to consider if, based on the factual basis as corrected, the sentence imposed is wrong in principle or manifestly inadequate. If so, the Court of Appeal is entitled to interfere. 3.2 As a corollary of the proposition in §3.1(2) above and according to first principle, where it is shown that, based on the facts proved, admitted or not in dispute, the sentencing court has failed to take into account certain matters which are relevant to sentence, the sentencing court has proceeded on an incomplete factual basis, rendering the sentence imposed wrong as a matter of law and principle. In such circumstances, the Court of Appeal is not bound by the findings made by the sentencing court for the purpose of sentence because those findings are incomplete for such purpose. The Court of Appeal is entitled to consider all the relevant matters including those wrongly ignored by the sentencing court to determine if in the overall circumstances of the case, the sentence imposed is wrong in principle and/or manifestly inadequate. If so, the Court of Appeal is entitled to interfere. 3.3 Applying the above principles, the Court held in the Judgment that according to the facts proved, admitted or not in dispute based on the evidence adduced before the Magistrate : (1) the unlawful assembly was a serious and large-scale unlawful assembly, involving violence; (2) the Magistrate had failed to take into account those relevant factors as identified by the Court; (3) the Magistrate had made the errors as identified by the Court; and (4) the sentences imposed by the Magistrate were wrong in principle and were manifestly inadequate. 3.4 The Court then set aside the sentences imposed by the Magistrate and substituted them with immediate custodial sentences as stated. Neither the 2nd nor the 3rd respondent has been able to demonstrate an arguable case that the Court had erred in allowing the application for review as it did in the manner as described. 3.5 Since the answers to the questions sought to be certified by the 2nd and 3rd respondents are well settled, and they have failed to show an arguable case that the Court had erred, the Court dismissed their applications. 
+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. In 2013, the Appellant and the Respondent entered into a joint venture agreement (the “JVA”). The JVA provided that one party might exclude the other from the joint venture if the other were insolvent. Should this option be invoked, the excluded party would be entitled to a share of the profit up to the date of exclusion, less expenditure and losses caused by the excluded party. 2. In August 2018, a winding-up petition was presented against the Appellant and, subsequently, the Respondent exercised its option under the JVA to exclude the Appellant from the joint venture. In December 2018, the parties entered into a Supplemental Agreement (the “SA”). Under the SA, the Respondent agreed to pay a sum of money for the Appellant’s residual rights and interests under the JVA (the “Transaction”) to Cogent Spring Limited (“Cogent Spring”), a sister company of the Appellant within the Hsin Chong Group. The Respondent paid the first instalment to Cogent Spring (the “Funds”). The Funds were then dissipated through various payroll and MPF payments owed by the Appellant, as well as legal costs and other expenses of other entities in the Hsin Chong Group. 3. The Respondent retrospectively sought to validate the Transaction. The Court of First Instance (“CFI”) granted a validation order (the “Validation Order”), holding that the payment of the Funds by the Respondent should be regarded as a discharge of its obligations under the SA, and not as a disposition of the Appellant’s property. Also, the CFI found that the Appellant might have to repay the Funds to the Respondent if the Transaction were not validated. While the Respondent had “an inkling” as to how the Funds would be spent, they did not breach any duties. To not validate the transaction would be to punish the Respondent, which would not benefit the Appellant’s unsecured creditors. The Court of Appeal held that there was no valid ground to interfere with the CFI’s exercise of discretion in granting the Validation Order. 4. The issue before this Court was whether, in validating the Transaction, the lower courts correctly applied section 182 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) (“CWUMPO”). 5. The Court of Final Appeal held that under section 182 of CWUMPO, after the presentation of a winding-up petition, a transaction that disposes of a company’s property would be void unless the court grants a validation order. If the Transaction is seen as a transaction disposing of the Appellant’s property, it is presumptively void and the burden is on the Respondent to show why the Validation Order should be granted. In granting a validation order, the order must benefit all unsecured creditors and the interests of the general body of creditors is paramount. 6. The Court of Final Appeal held that the Transaction involved a disposition of the Appellant’s property. The Appellant exchanged its rights under the JVA for the right to be paid under the SA: this right to be paid was the Appellant’s property. By paying Cogent Spring instead of the Appellant, the Transaction dissipated the Appellant’s property. The court would look at the substance of a transaction instead of its form. It was irrelevant that the parties contractually agreed that the Funds were to be paid to Cogent Spring. 7. The Court of Final Appeal held that the lower courts wrongly emphasised that the Respondent had no ulterior motive and breached no duty. The concern of section 182 of CWUMPO is to preserve the company’s property for proper distribution to unsecured creditors and it does not concern itself with the parties to the transaction or require it to be shown that such parties were involved in any breaches of duty before the disposition is rendered presumptively void. The Appellant never received any of the Funds, nor was any part of them made available to be distributed to the creditors of the Appellant. Further, contrary to what was suggested by the CFI, the Appellant would not have to repay the Respondent because none of the Funds were ever paid to the Appellant. Therefore, the Transaction was void by reason of section 182 and the Validation Order set aside. Disposition 8. Accordingly, the appeal was unanimously allowed. 
+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. These appeals involved two consolidated actions by Ryder Industries Limited, formerly known as Saitek Limited (“Saitek”) against Timely Electronics Company Limited (“Timely”), both of which are Hong Kong companies, and against Mr Chan Shui Woo (“Mr Chan”), the majority shareholder and director of Timely, as guarantor. The claims were for about HK$6.5 million claimed to be due under a series of agreements between 2005 and 2007 concerning a joint venture for the manufacture of mobile phones in the PRC. The agreements were governed by Hong Kong law, but most of the performance (other than payment) was to take place on the mainland. 2. For the purposes of the agreements, the parties operated a periodic mutual account. By mid-2006, the account was considerably in favour of Saitek, and the sum due had been accruing and unpaid for some time. In March 2007, Timely and Saitek entered into a supplementary agreement and agreed that the net outstanding payable was HK$5,615,394.97 and that Timely would pay the debts before the end of 2007. Mr. Chan personally guaranteed that all outstanding debts would be paid by then. 3. When proceedings were commenced by Saitek, Timely and Mr. Chan resisted payment on the ground that enforcement of the agreements was barred as a result of acts of performance of the co-operation agreement which were illegal under PRC law. 4. The trial judge gave judgment for Saitek. He found that Saitek was involved in the outsourcing of bonded materials for the production of mobile phones in the absence of customs office’s approval required under the relevant PRC law. He nevertheless held that Saitek did not need to rely on the illegality as a basis for the claim and it would be disproportionate to decline to enforce the payment obligation under the agreement because of that breach of PRC law. His decision was affirmed by the Court of Appeal. 5. Timely and Mr. Chan appealed to the Court. The appeals raised the question of the enforceability in Hong Kong of a contract governed by Hong Kong law when it had been performed in the PRC partly in breach of PRC law. 6. The Court held that the trial judge and the Court of Appeal were wrong to have treated the case as if it were purely an internal Hong Kong case, and should have addressed the issues on the basis of the rules of conflict of laws. Under the applicable principles, 6.1 if the performance of a contract requires or necessarily involves conduct which is illegal under the laws of the place where it is required to be performed, it will not be enforced; and 6.2 a contract will not be given effect if the real object and intention of the parties at the time of concluding the contract necessitates them joining in an endeavour to perform in a foreign and friendly country some act which is illegal by the law of such country notwithstanding the fact that there may be alternative modes or places of performing which permit the contract to be performed legally. 7. The Court noted that the principle in paragraph 6.2 above was one of public policy, and that it was not a pre-condition to the principle that the plaintiff was relying on its own illegality. A sufficiently serious breach of foreign law which reflected important policies of the foreign state or separate law district may be such that it would be contrary to public policy to enforce a contract. However, there was no basis in authority or principle for holding that every breach of foreign law would come into this category. 8. The Court therefore rejected Timely’s submission that comity required Hong Kong courts to treat the contract as unenforceable because of incidental breaches under PRC law in its performance. 9. Applying the principles to the facts of the case, the Court held that there was no basis for denying relief because: 9.1 First, there was no suggestion that performance of the contract in accordance with its terms was prohibited by PRC law. 9.2 Second, there was no finding that the parties had agreed to a scheme whereby PRC law would be contravened. 9.3 Third, there was no finding that Saitek always intended to commit the illegality. Even if it had so intended, it would be extraordinary if it could be regarded as contrary to public policy in Hong Kong to enforce a contract because of breaches which the judge found (a) not to be a very serious contravention of the law; (b) not to be conduct which could be described as iniquitous; (c) not to have resulted in actual criminal or enforcement proceedings in the PRC; and (d) to have been mere administrative contraventions. 10. Accordingly, the appeals were unanimously dismissed. Concurring judgment of Chief Justice Ma: 11. Chief Justice Ma observed that it was not necessary to discuss illegality in the domestic context, and he would leave open any detailed discussion of the applicable principles for a case in which the point arises. However, Chief Justice Ma was not in favour of applying the proportionality test as the applicable test for illegality since it appeared to suggest some kind of judicial discretion to be exercised. The question of illegality must be based on firmer principle and policy, although the facts in any given case would inevitably differ. 
+Background facts 1. This appeal concerns a charge to profits tax in relation to a payment received by the appellant taxpayer upon the disposal of a property that had been owned by it as a long-term capital asset. 2. The appellant, Perfekta Enterprises Limited, was the owner of a building situated on a site in Kwun Tong, Kowloon (the “Lot”), which the appellant used as its manufacturing base in Hong Kong since 1969. The appellant’s manufacturing base shifted from Hong Kong to the Mainland from the late 1970s, and it made a series of applications in 1991 to 1993 to various government departments to enable the redevelopment of the Lot. 3. On 21 April 1994, the appellant’s board of directors discussed a proposal from Cheung Kong (Holdings) Limited (“Cheung Kong”) for the redevelopment of the Lot. The minutes of the meeting (the “Minutes”) showed that the board of directors decided to proceed with the discussions with Cheung Kong, and that any such joint development venture with Cheung Kong should be carried out by a subsidiary company of the appellant. 4. On 30 July 1994, the appellant, Cheung Kong and Great Poka Limited (a subsidiary of Cheung Kong) (“Great Poka”) entered into an agreement concerning the redevelopment of the Lot (the “Redevelopment Agreement”). Under this agreement, Great Poka agreed to pay a sum of HK$165,104,100 to the appellant (the “Initial Payment”) as consideration for the right to develop the Lot. In return, the appellant agreed to transfer the ownership of the Lot to its wholly owned subsidiary (later known as Prodes Company Limited, “Prodes”). It was also agreed that the appellant would procure Prodes to enter into a new agreement (the “New Agreement”) with Great Poka to carry out the redevelopment joint venture. 5. Pursuant to the Redevelopment Agreement, the Initial Payment was duly paid, the Lot was assigned to Prodes, and Prodes, Great Poka and Cheung Kong entered into the New Agreement. Procedural history 6. Under section 14(1) of the Inland Revenue Ordinance (Cap.112) (the “IRO”), profits tax would not be chargeable on the Initial Payment if it was a profit arising from the sale of a capital asset. It would only be chargeable if the profit was derived by the appellant from its carrying on of “a trade, profession or business” in Hong Kong. In a Determination dated 19 May 2011, the Deputy Commissioner of Inland Revenue took the view that the Initial Payment should be assessable to profits tax. 7. The appellant appealed to the Board of Review contending that the Initial Payment was a capital receipt on which profits tax was not chargeable. By a majority, the Board of Review allowed the appellant’s appeal and remitted the assessment to the respondent for revision or annulment. The Board majority found that, although there was a change of intention on the part of the appellant, there was no relevant change of intention to one of trading. This was based on its finding that the appellant intended to sell the Lot and use part of the proceeds to invest in a joint venture to be carried out by Prodes (the “Reinvestment Theory”). In contrast, the Board minority found that the appellant changed its intention into one of trading as at the date of the Redevelopment Agreement. 8. The respondent successfully appealed to the Court of First Instance. Chung J set aside the Board majority’s decision, holding that there was no evidential basis for the Reinvestment Theory. The appellant’s appeal to the Court of Appeal on this issue was dismissed. The majority agreed with Chung J and the Board minority’s view that the appellant had changed its intention to one of trading in respect of the Lot. Godfrey Lam J dissented on this ground, and took the view that there was no change of intention on the part of the appellant. The central issue before this Court 9. The central issue before this Court was whether the majority in the Court of Appeal erred in concluding that the appellant had changed its intention, and had disposed of the Lot as a trading asset. 10. It was common ground that the Lot had been held by the appellant as a long-term capital asset prior to its disposal, therefore it would be necessary to find that there was a change of intention on the part of the appellant in order for the Initial Payment to be taxable under section 14(1) of the IRO. 11. It was also common ground that the role of an appellate court on an appeal on a point of law only is limited. If the fact-finding tribunal’s conclusion is a reasonable one, the appellate court cannot disturb that finding. The courts (including this Court) can therefore only substitute a different conclusion to that drawn by the Board if the contrary conclusion is the true and only reasonable conclusion on those primary facts. 12. The respondent contended that the true and only reasonable conclusion on the facts was that the appellant did change its intention from capital holding to trading via its subsidiary, Prodes, as held by the Board minority. It argued that the appellant embarked on a venture in the nature of trade as a property developer. 13. The Court rejected this argument because the Minutes clearly showed that the redevelopment venture would be carried out by its subsidiary (i.e. Prodes). The Court is not free to disregard the fact that the appellant and Prodes were two separate legal entities. The operations of Prodes could not be treated as those of the appellant itself on the facts. The provisions of the Redevelopment Agreement and the appellant’s subsequent actions also showed that the appellant all along intended that Prodes, rather than the appellant, would carry on the redevelopment with Great Poka and Cheung Kong. 14. The respondent argued, alternatively, that the appellant engaged in a trade in the nature of procuring its subsidiary to enter into the joint venture agreement. This argument was not raised before the Court of First Instance or the Court of Appeal. In any event, the proper question that the Court has to answer is “What trading or business venture has the taxpayer embarked upon?” On the facts of the case, it was no part of the appellant’s business to act as a procurer of joint venture participants for property developers. The Court therefore also rejected the respondent’s alternative argument. 15. The Court concluded that the true and only reasonable conclusion on the facts is that the appellant did not change its intention in relation to the Lot and did not enter into a venture in the nature of a trade in disposing of it. The Court therefore substituted this conclusion in place of that reached by the Board of Review and the courts below. 16. In these circumstances, it was therefore unnecessary to address the question of whether the court can substitute the finding of a minority decision of a board of review/tribunal as the finding of that board of review/tribunal, with the consequence that any challenge to the minority decision becomes a challenge to a conclusion from primary facts which can only succeed if it is demonstrated to be unreasonable, illogical or plainly wrong. DISPOSITION: 17. Accordingly, the Court unanimously allowed the appeal and annulled the assessment. 
+1. The appellant was charged with murdering Madam Yeung, with whom he cohabitated, at their home. The evidence revealed that Madam Yeung’s death was caused by multiple cut wounds and there were at least 213 cut wounds all over her body in what the forensic pathologist described as a frenzied attack. 2. The appellant admitted to killing Madam Yeung but raised the defence of provocation (“Defence”). 3. By their unanimous verdict, the jury were satisfied that the Defence did not apply and convicted the appellant of murder. Issues in this Appeal 4. The Defence is statutorily defined under section 4 of the Homicide Ordinance (Cap. 339). The appeal was concerned with the manner in which a judge is to direct a jury in respect of the objective question of the Defence, namely (assuming the defendant was provoked to lose his self-control) whether the provocation was enough to make a reasonable man do as the defendant did? 5. There are two elements to the objective question: (a) an assessment of the gravity of the provocation for the defendant in all the circumstances; and (b) whether, having regard to the actual provocation and its gravity, a person having ordinary powers of self-control would have done what the defendant did. 6. The issues in this appeal were: (a) Whether it is a misdirection of law to fail to direct the jury to form a discrete view as to the gravity of the provocation on the defendant, having the particular attributes he has, separately from and before determining whether, objectively, having regard to the actual provocation and their view as to its gravity, a person with ordinary powers of self-control would or might have done what the defendant did (“the Gravity Question”); and (b) Whether in directing the jury in relation to the objective question, it may in certain cases be incumbent on the trial judge to direct the jury that the words “do as he did” refer to the formation of an intent to kill or cause really serious bodily harm rather than the precise form of physical reaction. If so, whether the present case is such a case (“the ‘do as he did’ Question”). The Gravity Question 7. The Court held that both elements of the objective question, including the assessment of the gravity of the provocation, are to be assessed objectively. This conclusion was supported by (a) the principle that the criminal law is based on a generally accepted standard of conduct applicable to all; (b) the wording and policy of section 4 of the Homicide Ordinance; and (c) the authorities interpreting that section. Accordingly, the appellant’s contention that the first element of the objective question was to be assessed subjectively must be rejected. 8. However, the gravity of the provocation may well depend on the characteristics or circumstances of the defendant. The objective test incorporates the features of the defendant that might affect the gravity of the provocation. Thus, the “reasonable man” under the objective test bears the relevant history, experiences, background, features and attributes of the defendant. 9. The Court held that the Judge’s directions, read as a whole, fairly summarised Madam Yeung’s provocative acts and words in their proper context and therefore answered the Gravity Question in the negative. The “do as he did” Question 10. This question concerned the meaning of the words “do as he did” in section 4 of the Homicide Ordinance and the Court would construe this phrase in the light of its context and purpose. As a matter of context, section 4 provides a partial defence to a charge of murder, and its statutory purpose is to excuse certain impulsive homicidal acts resulting from substantial provocation from the ultimate penalty for murder. Further, as the authorities show, there is no longer a rule of law that the mode of resentment must be proportionate in type to the provocation. On a proper construction, the phrase “do as he did” means the forming of an intention to kill or cause grievous bodily harm to the victim and acting on that intention. 11. Where there is a risk that the jury may be misled into thinking that “do as he did” refers to the precise form of physical reaction of the defendant rather than an intent to kill, it is incumbent on a Judge to direct a jury not to pursue this impermissible line of reasoning. There was clearly a risk in the present case that the jury would have done so and the Judge’s directions on the “do as he did” question were inadequate. The Court therefore answered the “do as he did” question in the affirmative. 12. Accordingly, the Court quashed the appellant’s murder conviction and ordered a re-trial. 
+1. Fraudsters hacked into e-mails concerning a contract to supply fertilizer. The contract required buyer to pay seller 5% of the contract price as deposit (“Money”). However, the fraudsters tricked the buyer into paying the Money instead to a bank account held by the Appellant’s company. The Appellant made withdrawals of the Money in Hong Kong and was arrested on one occasion of doing so. 2. The Appellant was charged with the offence of conspiracy to deal with money having reasonable grounds to believe that it was “tainted” (“Conspiracy Offence”) contrary to s159A of the Crimes Ordinance, Cap 200 (“s159A”) and s25(1) of the Organized and Serious Crimes Ordinance, Cap 455 (“Money Laundering Offence”). 3. At trial, the Appellant gave evidence that he was a businessman who held the honest belief that the person who asked him to handle the Money was a bona fide middleman in a genuine transaction and the Money represented funds from that transaction. 4. The Judge found that the Appellant turned a blind eye to the facts and had reasonable grounds to believe that the Money was tainted. Such level of culpability sufficed to find him guilty of the Conspiracy Offence. 5. The Court of Appeal (“CA”) held that a genuinely held belief that the Money was not tainted would secure an acquittal even if it were unreasonable. However, the CA confirmed the Appellant’s conviction on the basis that the Judge had found the Appellant’s asserted belief to be both unreasonable and untrue. 6. On appeal before the Court of Final Appeal, the Appellant argued that a substantial and grave injustice had been done because the CA wrongly held that the Judge had disbelieved the Appellant’s asserted belief when no such finding had been made. 7. The Court raised several questions of law for determination: - What is the meaning of a defendant “having reasonable grounds to believe” that money is tainted for the purposes of proving the Money Laundering Offence, and in particular what is the relevance of the defendant’s subjective belief that the money is not tainted? (“Issue 1”) - To what extent is a defendant’s “wilful blindness” to the likelihood that the money is tainted relevant to proving the Money Laundering Offence? (“Issue 2”) - Can a defendant be guilty of the Conspiracy Offence only “having reasonable grounds to believe” that the money is tainted given that: (i) s159A(2) requires that even if an offence can be committed without the defendant’s knowledge of “any particular fact or circumstance necessary for the commission of the offence”, the defendant charged for conspiracy to commit that offence must nevertheless “intend or know” the future existence of that particular fact or circumstance at the time the conspiratorial agreement is to be carried out (Issue 3); and/or (ii) s159A(1) defines conspiracy as an agreement between two or more persons to do an act or acts which, if the agreement is carried out in accordance with their intentions by any one of them, “will necessarily” involve the commission of an offence or would do so but for the existence of facts which make it impossible (Issue 4). Issue 1 8. The Court affirmed the correctness of the test propounded in previous authorities to determine whether a defendant had reasonable grounds to believe that the money in question was tainted for the purposes of the Money Laundering Offence. 9. In the interests of clarity, the test was reformulated as follows: (i) What facts or circumstances, including those personal to the defendant, were known to him that may have affected his belief as to whether the money was tainted? (ii) Would any reasonable person who shared the defendant’s knowledge be bound to believe that the money was tainted? (iii) If the answer to (ii) is “yes”, the defendant is guilty. If “no”, the defendant is not guilty. 10. Where a defendant believed or may have believed that the money was clean, it is the facts and circumstances that the defendant asserts led him to that belief that are significant, rather than that belief itself. If a reasonable person who shared the defendant’s knowledge of the relevant facts and circumstances would be bound to believe that the money was tainted, the offence is still made out even though the defendant subjectively believed or may have believed otherwise. However, his subjective belief may well be a mitigating factor when he is sentenced. Issue 2 11. The Court explained “wilful blindness” as a concept which treats a defendant as having the required knowledge if he suspects the likely truth but deliberately avoids making the enquiries that would have given him knowledge of the truth. In principle, the concept can be used to infer that the defendant actually knew that the money was tainted in a money laundering case where the prosecution alleges that the money was tainted and the defendant knew about it. However, in practice, since “having reasonable grounds to believe” is the statutory alternative to having knowledge for the Money Laundering Offence, it will normally not be necessary or helpful to apply the concept to prove the offence. Issue 3 12. S159A(2) requires a defendant charged for conspiracy to commit an offence to “intend or know” the future existence of any particular “fact or circumstance necessary for the commission of” that offence. The Court held that the subsection is not engaged in the Conspiracy Offence because the tainted character of the money is not required to be proved as a “fact or circumstance necessary for” committing the Money Laundering Offence. Issue 4 13. The Court held that a defendant is guilty of the Conspiracy Offence where he agrees and intends with another to deal with money in the future, “having reasonable grounds to believe” at the time of the conspiratorial agreement that the money is and would remain tainted. He is guilty because such an agreement, if carried out in accordance with the conspirators’ intentions, “will necessarily” involve the commission of the Money Laundering Offence, even if it does not actually materialise in the end. Substantial and Grave Injustice 14. The Court held that no substantial and grave injustice had been done. First, the Judge had evidently rejected the Appellant’s asserted belief that the Money was not tainted. Secondly, even if his asserted belief had been accepted, he would still have been found guilty because any reasonable person who shared his knowledge of the relevant facts and circumstances would be bound to believe that the Money was tainted. DISPOSITION: 15. The Court unanimously dismissed the appeal. 
+1. The Respondents (“the taxpayers”) had owned land since the 1930s, part of which was occupied by an orphanage. By September 1989, the taxpayers submitted plans to the Government to relocate the orphanage and to redevelop the land. In July 1990, the taxpayers obtained planning approval to redevelop the land into residential units. Then in December 1990, the taxpayers applied to the Government for a land exchange, which was subsequently approved. In 1993, the taxpayers accepted a tender from a property developer and entered into a joint venture agreement to develop an extensive residential complex on the new piece of land. Eventually, the taxpayers sold the residential units and car parking spaces allocated to them under the joint venture and made substantial profits. 2. Profits tax is chargeable only on profits arising in or derived from carrying on by a taxpayer of a trade, profession or business in Hong Kong and profits arising from the sale of capital assets are excluded from such charge. The Board of Review determined that the taxpayers were liable to profits tax on the profits assessed on the basis of the valuation of the land by September 1989 at the latest, or by December 1990. The issue before the Court was whether the taxpayers were carrying on a trade or business when they made the profits sought to be taxed, or whether those profits arose from the sale of a capital asset. 3. Whether an activity amounts to the carrying on of a trade or business is a question of fact and degree to be answered by the relevant fact-finding body on a consideration of all the circumstances. Trading requires an intention to trade; such intention may be formed before the relevant asset is sold. The intention then may be different to the intention when the asset was originally acquired. If a change of intention is to be relied upon as the basis for a finding of an intention to trade, precision in the fact finding process is required. 4. One of the factors that the fact-finding body may consider in ascertaining whether there has been a change of intention is whether the taxpayer has expended time, money or effort in selling the asset or commodity that goes beyond what might be expected of a non-trader seeking to sell an asset of that class. 5. Enhancement of the value of the property for the purpose of sale, if going beyond what might be expected of ,a non-trader preparing to sell a long term capital asset, may on its own be sufficient to support a finding of fact that the landowner has formed the intention to sell the land in the course of a trade or business. Thus, the taxpayers’ contention that a finding of change of intention can never, as a matter of law, be based solely on activities relating to the enhancement of the value of the property for the purpose of sale was rejected. 6. Nevertheless, the Court upheld the decision of the Court of Appeal to overturn the Board of Review’s finding of fact that, by September 1989 at the latest or, alternatively, by December 1990, the taxpayers had formed the intention to trade in the land, and to remit the matter to the Board of Review to ascertain when that change of intention occurred. The Court held that, on the facts found by the Board of Review, none of the conducts of the taxpayers had gone beyond what a non-trader owner might have done in similar circumstances and they did not support a finding of change of intention. As a result, the Board of Review’s conclusion was one which no reasonable Board of Review, properly instructed in the law, could find. 7. Fok PJ added that in 1993 when the taxpayers invited various property developers to submit tender offers, the invitations were either to purchase the new piece of land or to enter into a joint venture agreement for development of the new piece of land. The taxpayers could have accepted an outright sale of land then, so it could not be said that a firm intention to commit to one method of disposal rather than the other had been formed before the taxpayers decided to enter into a joint venture agreement with a developer. 8. Accordingly, the Court dismissed the appeal. 
+The 2nd and 3rd Appellants are partners of the 1st Appellant, a firm of Certified Public Accountants. The Respondent is the principal regulator of the accountancy profession. There were concerns over the standard of the Appellants’ work as the auditors of Tiffit Securities (Hong Kong) Ltd. after Tiffit was found to have misappropriated substantial numbers of securities held for its clients. Pursuant to the Professional Accountants Ordinance (PAO), an Investigation Committee (“IC”) was appointed by the Respondent to investigate the matter. It had to decide whether there was a prima facie case against the Appellants. If so, the Council of the Respondent would then decide whether to constitute a disciplinary committee. A consultant, hired by the Council to assist the IC, examined the relevant evidence and prepared a draft report stating that there was a prima facie case against the Appellants. The meetings of the IC were attended by the consultant and by officers of the Compliance Department of the Respondent. The IC adopted the draft report. The Appellants complained, among others, that the IC was not acting independently and impartially, as manifested in an appearance of “simply rubber stamping a draft report which was wholly or substantially prepared by the staff”. The Appellants also requested the Council to reconstitute a different IC. The Council rejected the Appellants’ complaints about the IC and refused to reconstitute a different IC. The Appellants sought judicial review of the Council’s decisions.The trial judge rejected the Appellants’ arguments on the facts and dismissed the Appellants’ application for judicial review. Both the Court of Appeal and Court of Final Appeal upheld the trial judge’s decision. The Court observed from the outset that it is difficult to relate either of the impugned decisions to any exercise of statutory power by the Council. The Council does not have a statutory function of resolving complaints about an IC or duty to reconstitute a different IC. The Court also found it difficult to relate the challenges to the decisions to the recognized grounds of judicial review of administrative action. The Appellants advanced three criticisms of the reasoning of the lower courts, but were all rejected by the Court. The first criticism was that the trial judge wrongly sanctioned and applied, and the Court of Appeal wrongly approved, a variable or flexible standard of independence and impartiality. The Court examined the statutory scheme under the PAO in relation to the complaints and disciplinary procedures. In particular, having regard to the nature and work of the IC, the Court found that, at least in substantial cases, the IC will need assistance, and the assistance of people such as the consultant in the present appeal and the officers of the Compliance Department is clearly within legislative contemplation. The Court noted that the IC is undoubtedly obliged to act fairly and to be, and appear to be, independent and impartial. However, while recognizing that the concept of independence and impartiality does not vary in its meaning as between different kinds of administrative body, the Court held that the practical content of such concept varies according to circumstances which include the functions assigned to the body, and its place in a wider statutory scheme. Conduct that may compromise the appearance of independence and impartiality of one person or body required to form an opinion for the purpose of one statutory scheme may not have that effect in the case of another. The function of investigation, even where it is required by statute to be performed independently and impartially, almost always involves contact between the investigator and third parties. The circumstances of the case will determine what is a fair and efficient procedure. In this respect, the PAO is not prescriptive. The investigative process will be tailored to the individual case; some investigations may call for more extensive outside input and assistance than others. In the end, what was essential was that the IC made up its own mind, and formed its own opinion, on the question it was directed by the Council to consider, and then informed the Council of its opinion. The Court pointed out that the issue faced by the lower courts was whether the IC and those upon whom it relied for assistance created a reasonable apprehension that the IC was not independent and impartial. This is a question of fact. The Court held that in answering that question in the negative, the lower courts rightly recognized that the kind of conduct that may warrant an apprehension of lack of independence and impartiality in the case of one kind of statutory body or tribunal may not do so in the case of another. The Appellants’ first criticism was rejected. The Appellants’ second criticism was that the courts should not have relied on the evidence given by one of the IC members. The Appellants argued that since their case was based on appearances of lack of independence and impartiality, evidence from the IC member that he made up his own mind in the decision-making process of the IC was irrelevant. The Court rejected this criticism and pointed out that the evidence that the IC member made up his own mind was prefatory to an account of the IC’s work and procedure. Such an account is relevant and admissible. Where a court, undertaking judicial review, has to deal with an allegation that a decision-making process was such as to create in the mind of a reasonable person an appearance of bias or lack of independence and impartiality, evidence which gives a full account of the objective facts and circumstances of the process will often be necessary. In the present case, given the nature of the Appellants’ challenge to the work of the IC, the lower courts were entitled, and obliged, to consider all the objective facts concerning that process referred to in the IC member’s evidence, regardless of whether they were known to the Appellants at the time the allegation was first made. Further, the Court noted that such evidence was in reply to allegation put to the IC member, and held that the allegation was made in terms that invited the response that was given, and the response was relevant. The third criticism was that the Court of Appeal failed to apply a relevant case law. That case was distinguished by the Court on the basis that it concerned a body that made decisions dealing with the merits of charges of professional misconduct, and therefore not applicable to the present case. 
+1. The Appellants were unsuccessful in their applications for the issue of dependant visas by the Respondent. They applied to the Court of First Instance for leave to apply for judicial review to challenge the Respondent’s decisions. Since both applications were considerably outside the 3-month time limit under Order 53 rule 4 of the Rules of the High Court (Cap. 4A) (“RHC”), the Appellants each applied for an extension of time in which to apply for leave to apply for judicial review. In both cases, Chow J dismissed the application for extension of time and refused leave to apply for judicial review. 2. The Appellants applied to the Court of Appeal for leave to appeal against Chow J’s decisions under section 14AA(1) of the High Court Ordinance (Cap. 4) (“HCO”), which provides that leave to appeal is required to appeal against an interlocutory judgment or order. The Court of Appeal dismissed both applications. The Court of Appeal further dismissed the Appellants’ applications for leave to appeal to this Court, on the ground that section 14AB of the HCO states that the Court of Appeal’s decision as to whether leave to appeal to it should be granted is final. 3. The main issue in these appeals was whether section 14AA(1) of the HCO applies to a decision by a judge of the Court of First Instance to refuse extension of time to apply for leave to apply for judicial review, so that leave is required to appeal to the Court of Appeal. If leave to appeal is required, the Appellants further argued that section 14AB of the HCO is inconsistent with Article 82 of the Basic Law, which provides that the power of final adjudication of the Hong Kong Special Administrative Region shall be vested in the Court of Final Appeal, insofar as section 14AB restricts appeals to this Court in judicial review proceedings. 4. Section 21K(3) of the HCO and Order 53 rule 3(1) of the RHC provide that an application for judicial review can only be made when leave to apply has been granted. Order 53 rule 4(1) of the RHC states that an application for leave to apply for judicial review shall be made promptly, and in any event within 3 months, but the court retains a discretion to extend time where it considers there is good reason to do so. Section 21K(6) of the HCO states that when the Court of First Instance considers that there has been undue delay in making an application for leave to apply for judicial review, the court may refuse to grant leave if the granting of the relief sought would be likely to cause hardship or prejudice or be detrimental to good administration. 5. Order 59 rule 21(1)(g) of the RHC provides that section 14AA(1) of the HCO does not apply to an order under Order 53 rule 3 refusing to grant leave to apply for judicial review. 6. The Court held that, upon proper construction of Order 53 rule 4(1) of the RHC and section 21K(6) and (7) of the HCO, the issue of delay is intrinsically bound up with the question of whether leave to apply for judicial review should be granted. A decision by a judge of the Court of First Instance to refuse extension of time is therefore not a discrete and separate decision. It leads to, and is part and parcel of, the decision to refuse leave to apply for judicial review. Such decision falls within the exception in Order 59 rule 21(1)(g) of the RHC, so that leave to appeal is not required. By reason of this conclusion, it was unnecessary for the Court to consider the issue of the compatibility of section 14AB of the HCO with Article 82 of the Basic Law in relation to judicial review proceedings. DISPOSITION: 7. Accordingly, the Court unanimously allowed the appeals, to the extent that the Appellants did not require leave to appeal against Chow J’s decisions to the Court of Appeal. The further course of the appeals would depend on the Appeal Committee’s consideration of the other questions of law for which leave to appeal to the Court was sought by the Appellants and these would be dealt with on a date to be fixed. 
+1. This appeal was concerned with an aspect of the regulation of fish farms (known as fish culture zones) in Hong Kong concerning the validity of a licence to engage in fish culture after its expiry date. Specifically, when a licence has been cancelled and an appeal against that cancellation is instituted, does the validity of the licence automatically continue until the determination of the appeal even if that date is beyond the expiry date? FACTS 2. A licence from the Agricultural, Fisheries and Conservation Department (“AFCD”) issued under the Marine Fish Culture Ordinance (“MFCO”) is required to operate a raft in a fish culture zone in Hong Kong. Licences are valid for 12 months and, for renewal, application must be made to the AFCD at least 1 month before the expiry date of the licence, i.e. by the 11th month of the term of the licence. 3. The Respondent company, Special View Limited (“SVL”) had a licence to operate a raft in Tiu Cham Wan, which was valid for a year from 17 December 2014. The Director of the AFCD (the “Director”) considered that SVL was in breach of relevant regulations and licence conditions and therefore gave notice on 24 November 2015 that he had made a decision to cancel its licence under section 9(1) of the MFCO with immediate effect. By that time, there was less than one month to run on the licence before its expiry date but no application to renew it had been made by SVL. SVL appealed to the Administrative Appeals Board against the cancellation of its licence under section 16(1)(c) of the MFCO. That appeal was instituted within the statutory appeal period of 28 days of the cancellation decision but was after the expiry date of the licence. The appeal was eventually dismissed. 4. In the meantime, SVL continued to allow its raft to remain in the fish farm and so it was therefore charged under section 13(2) of the MFCO at the Kwun Tong Magistracy with the offence of causing or permitting a raft to remain in a fish culture zone without a licence. At trial, SVL argued that, by virtue of section 16(2)(a) of the MFCO, which provided that a cancellation, if appealed, did not become effective until the determination of the appeal, its licence should be deemed to have been in force during the period of the charge by reason of SVL’s appeal. The magistrate rejected that defence, convicted SVL and imposed a fine of $2,500. 5. SVL appealed to the Court of First Instance, and the Deputy Judge allowed its appeal on this ground. He essentially held that the validity of the licence was frozen at the point in time when the cancellation notice was served, since SVL had appealed against the cancellation of its licence, and so there was no need for SVL to apply for renewal of the licence pending the determination of the appeal. 6. The prosecution brought a further appeal to this Court against the decision of the Court of First Instance. ISSUES 7. The question before the Court was one of interpretation of section 16 of the MFCO, which gives a statutory right of appeal against certain decisions of the Director. 8. The language of section 16(2)(a) of MFCO did not support SVL’s defence. That sub-section provides that a decision to cancel the licence “shall not become effective” pending an appeal against it. It says nothing about what effect the passage of time has on the licence in the meantime. This can be contrasted with the language found in sections 16(2)(b) and 16(2)(c), which spells out clearly that the licence will “continue in force” when appeals were made against refusals to renew or approve transfers of the licence. This is further supported by the fact that section 16(3) only provides for liability for the payment of a fee for a licence beyond its expiry date when appeals are made under sections 16(2)(b) and 16(2)(c) but not section 16(2)(a). 9. Construing the language of section 16(2)(a) in the light of its context and purpose therefore, the Court held that its effect was as follows: (1) Where an appeal is timeously lodged against a decision to cancel a licence under the MFCO and within the validity of the licence, the cancellation does not become effective pending the determination of the appeal notwithstanding that the cancellation may on its face state that it takes immediate effect. Nevertheless, the expiry date and other terms of the licence remain applicable and, if no application to renew the licence is made, the licence will expire on the expiry date when that date arrives. (2) If a cancellation is made during the currency of a licence but an appeal is only lodged against the cancellation decision after the expiry date of licence, the licence will have run its original course and expired before the lodging of the appeal. In those circumstances, the lodging of the appeal (within the 28-day time limit) will have the effect of nullifying the cancellation. However, as indicated in sub-paragraph (1) above, the licence will have continued to run and will have expired on its expiry date. If the licensee continued to operate a fish farm after the cancellation, there would be no offence until the expiry date of the licence. Thereafter, however, the continued operation of a fish farm would be an offence since there would no longer be a valid licence in place. (3) There were contrasting consequences of an appeal under section 16(2)(b) or (c). Where, for example, an application for renewal is refused under section 8(6) and that refusal is appealed, the effect of section 16(2)(b) is that the licence will be deemed to continue in force according to its terms and conditions until the determination of the appeal. This applies even if the licence has expired as at the date of the institution of the appeal. In that event, the appeal will relate back to the expiry date of the licence and the licence is deemed to continue in force thereafter. The continuation of the licence is on its original terms so a breach of the licence conditions thereafter will render it liable to enforcement action by the Director (including cancellation, which may in turn give rise to the consequences of section 16(2)(a)). 10. The Court of First Instance’s view that the validity of SVL’s licence was “frozen” pending the appeal against its cancellation was incorrect. SVL failed to apply to renew its licence within time and had operated its fish farm without a valid licence. It was therefore properly convicted by the magistrate of the offence charged. DISPOSITION 11. Accordingly, the appeal was unanimously allowed. SVL’s conviction and the fine imposed by the magistrate were reinstated. 
+1. The Respondent group of companies is the successor to a Hong Kong business which commenced operations in 1932, initially as a wholesaler in the supply of tea and coffee products. The second Respondent, a member of the TWG Group, is registered as owner of trade marks 300635463 and 300655470 in respect of goods including coffee, tea and sugar. Each registration is of two marks. Each mark contains concentric ovals adjacent to the letters “TWG”. 2. The first Appellant was incorporated in Singapore in 2001 and in 2008 adopted “TWG” to identify “The Wellness Group”. On 8 December 2011 the second Appellant opened a “Tea Salon and Boutique” in Hong Kong Central at Podium LevelOne, IFC Mall. There were adopted two signs, a cartouche mark which involved the use of “1837 TWG TEA” in the middle and a balloon mark which involved the use of “TWG TEA” and “PARIS SINGAPORE TEA”. 3. The Respondents succeeded at trial before Deputy High Court Judge Saunders in their action as plaintiffs against the Appellants for passing-off and also for infringement of registered trade marks contrary to s 18(3) of the Trade Marks Ordinance Cap 559. Subject to modification of the terms of the injunction restraining trade mark infringement, an appeal was dismissed by the Court of Appeal. The Appellants appealed to this Court. 4. In respect of the claim of passing off, the Court accepted the Appellants’ submission that the United States approach to “dilution” of common law trade marks does not represent the law of passing-off in Hong Kong. However, the Court found for the Respondents because: (a) the present case is not one where there was a finding of liability on the ground of dilution without confusion and deception; (b) it is well established that the passing-off action protects goodwill against its threatened erosion by the activity of the defendant in cognate fields into which the plaintiff may wish to enter, where that activity causes or is likely to cause deception of those familiar with the mark or other indicia of the plaintiff; and (c) on the findings at trial the present is just such a case. 5. In respect of the correct approach to determining infringement of a registered trade mark under s 18(3), the Court held that: (a) if there are several reasonably possible interpretations of a statutory provision such as s 18(3), it should favour that which is consistent with the international obligation found in Art 16(1) of TRIPS; (b) given the text of Art 16(1) of TRIPS and, in particular, its evident influence in Hong Kong upon the relevant amendment ordinance in 1996, the coordinate “and” in s 18(3) should be employed in a cumulative and causal sense; and (c) the alleged appeal point failed because it was never contended by the Appellants that the absence of similarity was such that para (a) of s 18(3) was not satisfied and there was thus no occasion to consider para (b); rather their case was that the level of similarity, coupled with the context of use, was that there was no likelihood of confusion. 6. In respect of the approach to determining questions of similarity and likelihood of confusion where the marks and signs comprise letters of the alphabet and other elements, the Court held that: (a) when applying s 18(3) it cannot be erroneous in assessing “similarity” to consider if there be any striking features of the mark or sign which appear “essential” or “dominant”, but doing so without disregarding the entirety of the mark or sign or stripping it of its context, including evidence of what happens in the particular trade; and (b) there was no error in this respect by the approaches to the evidence by the trial judge and the Court of Appeal. 7. The Court unanimously dismissed the appeal. 
+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 intercepted by police officers when seen to be interfering with the property of a drunk man. When searched he was found to be in possession of a plastic bag containing 12.07g of the dangerous drug known as “Ice”. The Appellant was arrested and cautioned but remained silent. Later at the police station, he was interviewed again and remained silent. The Appellant was charged with a count of theft and a count of trafficking in a dangerous drug. The Appellant pleaded guilty to the theft charge and not guilty to the trafficking charge. He offered to plead guilty to a charge of possession but the prosecution proceeded with the trafficking charge. 2. At trial, the Appellant gave evidence that the “Ice” was only for his own consumption, and that drug-taking equipment was kept outside the window of his bedroom. In cross-examination, prosecuting counsel questioned the Appellant about his failure to volunteer to the police the location of his drug-taking equipment, and suggested that he was lying about its existence. Furthermore, prosecuting counsel in his closing speech asked the rhetorical question why the police failed to find the drug-taking equipment at the Appellant’s home, and suggested to the jury that the Appellant’s account for possession was inherently unbelievable. The jury convicted the Appellant of trafficking. 3. It was common ground that the cross-examination as to why he did not tell the police where his drug-taking equipment was located constituted inadmissible evidence. It infringed the Appellant’s right to silence by impermissibly undermining the Appellant’s credibility through the suggestion that his evidence was a late invention. The Court of Appeal, by a majority, concluded that, although this was an irregularity in the trial, it was not material. 4. The Court of Final Appeal observed that, since the question of whether the right to silence has been materially infringed is fact and context sensitive, it was necessary to identify the issue to which the inadmissible evidence related and its importance in the context of the case as a whole. 5. It was common ground at trial and on appeal that the sole and critical issue at trial was the credibility of the Appellant. This was an important context in which to judge the materiality of the inadmissible evidence and also the effectiveness of any remedial steps taken to cure any prejudicial effect. 6. The Court concluded that the introduction of the inadmissible evidence was clearly a material irregularity in the context of the present case. The purpose of prosecuting counsel’s cross-examination and closing speech was clearly to suggest that the Appellant was a dishonest person. The consistent theme of the prosecution was that the Appellant was not to be believed in part because he made things up as he went along. In the context of a short trial such as this, it was reasonable to conclude that the prejudicial effect of any inadmissible evidence would still have been fresh in the minds of the jury when returning their verdict. 7. The Court also concluded that, in the context of the summing-up, such prejudicial effect was not remedied by the judge’s directions. There was a real risk that the jury may have embarked on an impermissible line of reasoning: namely that, because the Appellant did not mention something helpful to his defence at the earliest opportunity, the defence was not to be believed. 8. By reason of the Appellant’s conviction in these circumstances, substantial and grave injustice was done to the Appellant and the appeal was therefore allowed. The Appellant’s conviction for trafficking in a dangerous drug was quashed and substituted by a conviction for possession of a dangerous drug. At both counsel’s invitation, the Court substituted a sentence that would allow for the Appellant’s immediate release. 
+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. 
+FACTS 1. This appeal concerns the requirement under the common law offence of attempting to pervert the course of justice that the accused’s act has to have a tendency to pervert the course of justice, in the context of an investigation by the Independent Commission Against Corruption(the“ICAC”) against the Appellant. 2. The Appellant used to be a staunch supporter of Mr C Y Leung in his successful bid to become the Chief Executive of the Hong Kong Special Administrative Region (the “CE”). Their relationship turned sour after Mr Leung assumed office. 3. On 8 January 2013, the Appellant was arrested and interviewed by the ICAC on suspicion for having conspired with others to commit an offence contrary to the Prevention of Bribery Ordinance (Cap 201) (the “Investigation”). He was released on bail after the arrest and interview. 4. On 9 January 2013, on the Appellant’s instruction, his personal secretary prepared and sent emails addressed to the CE and the Commissioner of the ICAC (the “Commissioner”). The Appellant protested his innocence in the email and requested the CE and the Commissioner to stop the Investigation, describing it as “groundless” and “political persecution”. The Appellant claimed that if the Investigation was not terminated, “a political bomb would be detonated”. 5. On 10 January 2013, again on the Appellant’s instruction, his personal secretary prepared and delivered a letter addressed to the CE and copied it to the Commissioner. It directly accused the CE of instigating the Investigation and claimed that, if it was not stopped immediately, the Appellant would announce the call for the CE’s resignation to the media and the Central People’s Government using “shocking insider information”. The letter requested the CE to instruct the ICAC to stop the Investigation. 6. In 2015, the Appellant was tried and acquitted on conspiracy charges arising from the Investigation. He was subsequently tried on January 2016 in the District Court on the present charge of doing acts tending and intended to pervert the course of public justice, contrary to common law. The Appellant was accused of seeking to rely on his past dealings and association with the CE, by threat or by intimidation, to influence the CE and/or the Commissioner to terminate the Investigation. 7. On February 2016, the Appellant was convicted in the District Court and sentenced to 18 months’ imprisonment. His conviction was confirmed by the Court of Appeal (“the CA”) in March 2018. 8. In May 2018, the CA certified three points of law of great and general importance for consideration before this Court. The questions were concerned with the nature and details of the CE and Commissioner’s legal powers. They arose from lower courts’ proceedings where the Appellant argued that what he had done had no tendency to pervert the course of justice as neither the CE or the Commissioner had legal power to do what the appellant wanted them to do. The Appeal Committee of this Court added an additional question as a prior question to those identified by the CA, such that the CA’s questions would not arise should the answer to the Appeal Committee’s question be “no”. ISSUES 9. The prior and key question of this appeal was whether, in order to prove that the Appellant’s acts had a tendency to pervert the course of justice, it was necessary for the prosecution to establish that the CE or the Commissioner could, by the lawful exercise of a legal power that he possesses, stop or interfere with the criminal investigation. 10. Setting out the general principles, the Court held that for an act to have a tendency to pervert the course of justice, it must have a tendency to bring about a miscarriage of justice in curial proceedings. This includes acts that have a tendency and are intended to frustrate or deflect the course of imminent, probable or possible curial or tribunal proceedings. The offence may be found on acts of interference in relation to curial proceedings which may result from an investigation. The Court further observed that whether a defendant’s act had the tendency to pervert the course of justice is a question of fact in each case. 11. The CE and the Commissioner are respectively, the head of the HKSAR and of the ICAC. The CE is the person to whom the Commissioner is accountable in respect of his work. The emails and letter were written while the Investigation was ongoing. Both the CE and the Commissioner were relevantly connected with the Investigation. It is plain that writing to them asking them to stop an ongoing ICAC investigation, with the threat that otherwise a huge political bomb would be detonated, involves a tendency to pervert the course of justice. 12. The Appellant’s suggestion that in order for the approaches to them to have a tendency to pervert the course of justice, the CE and the Commissioner must have the legal power to stop the investigation, is unrealistic on the facts of this case. 13. The CE is in a unique constitutional and legal position. He is undoubtedly in a position to influence or otherwise affect the Commissioner’s and, through the Commissioner, his officers’ handling of the investigation, if not to stop it altogether. Whether the CE may or may not be successful is not to the point. 14. Similarly, the Commissioner holds the position as head of the ICAC. There would be many things that he could do, or attempt to do, directly or indirectly, administratively or otherwise, which frustrates, delays or otherwise interferes with the investigation or affects its outcome, even bringing about its termination altogether. 15. The key question above must therefore be answered with a “no”. As such, it is unnecessary to deal with the questions certified by the CA. However, the Court should not be taken as agreeing with the analysis of the lower courts on them. DISPOSITION 16. The appeal was unanimously dismissed. 
+1. The defendant is charged with one count of “attempted arson with intent”, contrary to sections 60(2) and (3), 63(1) and 159G of the Crimes Ordinance, Cap 200. 2. The prosecution case is that on 18 November 2019 near the junction of Nathan Road and Jordan Road, Yau Ma Tei, Kowloon, in Hong Kong, the defendant, without lawful excuse, attempted to damage by fire property belonging to himself or another, being reckless as to whether such property would be destroyed or damaged, and being reckless as to whether the life of another would be thereby endangered. 3. The prosecution called 2 witnesses- Acting Sergeant 7720 (“PW1”) and exhibit officer DPC 10518 (“PW2”). 4. In a nutshell, PW1 testified that he and his colleagues had been dispersing a crowd of protesters on Nathan Road in the small hours of 18 November 2019. At about 2:12 am, he saw the defendant trying several times but failed to set light to a petrol bomb with a lighter. He subdued the defendant in the nick of time before he attempted again. He seized the petrol bomb in question as well as other exhibits. He searched the defendant’s backpack and found a pair of goggles and a head wrap therein. At about 2:53 am, PW1 handed over the defendant, the defendant’s backpack and the other exhibits to PW2 for custody. Later in the police station, PW2 found an orange lighter inside the big compartment of the defendant’s backpack and seized it as exhibit. 5. The defendant did not testify and called no evidence at trial. During cross-examination, it was put to PW1 that the defendant had been with other protesters at the time and the petrol bomb was passed to the defendant by one of the protesters. No sooner had he got hold of the petrol bomb than he was pushed to the ground and subdued. The defence case was categorically denied by PW1 who maintained that the defendant was alone by himself and there were no protesters around him or in his vicinity. 6. There is no other independent evidence of what happened on the night in question. 7. In order to fund a conviction, the prosecution have to prove their case beyond reasonable doubt, which is a very high standard. Anything short of that would mean the defendant’s guilt is not proven to the required standard and the defendant will be acquitted. 8. Having considered all the evidence carefully, the court cannot be sure what PW1 described was what happened. The main considerations are as follows. 9. PW1 initially arrested the defendant for “possession of offensive weapon”. The defendant has submitted that the fact that the defendant was initially arrested for any offence other than attempted arson shows that PW1 did not then regard what the defendant had done amounted to attempted arson. 10. There was no attempt by anyone at the scene, including PW1, to recover the lighter allegedly used by the defendant. It is not the prosecution’s case that the orange lighter subsequently discovered by PW2 had been used by the defendant. Given his evidence, PW1 should know that both the lighter and the petrol bomb would be relevant evidence and should be seized as exhibit. There is nothing to suggest that PW1 had conducted any search for the lighter or requested his colleagues to look for it during the 40 odd minutes he dealt with the defendant at the scene. He only accounted for the fact that no lighter was recovered from the scene in his second statement which was made almost one year after the incident and just 2 days before the trial. 11. Whilst the defence case put to PW1 is not evidence as it has not been adopted by the witness and the defence has called no evidence in support of it, it does provide a perspective for the court to consider the prosecution evidence. If the defendant had just been holding the petrol bomb at the time, there would be no lighter and it would make sense to arrest him for “possession of offensive weapon”. 12. Turning to PW2, he said he later discovered the orange lighter inside the defendant’s backpack at the police station. This is inconsistent with PW1’s evidence as he had searched the backpack before handing it over to PW2 at the scene and there was no mentioning of finding any orange lighter inside. In fact, PW2’s testimony is inconsistent with his own witness statement wherein he described PW1 handling over 10 exhibits to him at the scene at 2:53 am and the last one being “an orange lighter”. Given the evidence, the court cannot be sure who is to believe and what to make of the orange lighter. 13. All in all, the court is of the view that it is not safe to rely on the testimony of PW1 and PW2 and is not sure if the event really happened in the way described by them. The prosecution has failed to prove the defendant’s guilt to the required standard and the defendant is therefore acquitted. 
+1. The testatrix, Nina Kung, passed away leaving a home-made Chinese will dated 28 July 2002 (the “Will”) that bequeathed all of her properties to the Appellant, a registered Hong Kong charitable company. After introductory words, the Will contained four clauses, which are summarised as follows: - Clause 1 contained a gift of Nina’s property to the Foundation. - Clause 2 contained provisions about the appointment of a managing organisation to supervise the Foundation, about the continuation of existing projects, and about the funding of “a Chinese prize of worldwide significance to that of the Nobel Prize”. - Clause 3 related to the Foundation’s management of the Chinachem Group [for both business and charitable purposes]. - Clause 4 contained provisions about the Foundation providing support for members of the family of Nina’s late husband Teddy Wang (“Teddy”), and staff of the Chinachem Group and their children. 2. The principal issue that divided the Foundation and the Secretary for Justice in the proceedings was whether the Foundation should take the properties bequeathed to it (i) as a gift absolutely for the general charitable objects set out in its memorandum; or (ii) as a charitable trustee and be obliged to give effect to all or some of the directions in clauses 2, 3, and 4 of the Will. 3. The Court of First Instance and the Court of Appeal held that the language used in clauses 2, 3, and 4 of the Will was imperative in nature and sufficiently clear that the Foundation would hold the estate as a trustee and would be obliged to give effect to clauses, 2, 3, and 4 of the Will in so far as it would be possible. 4. The Court of Final Appeal held that the words of the home-made Will must be read and understood in their context, and that the Will must be read as a whole. The Court further held that a gift to a charitable company is a gift to the company unless it was sufficiently clear that the imposition of a trust was intended. 5. In the present case, the Court considered the effects of the imperative language and specific phrases used in the entire context of the home-made Will, and held it was sufficiently clear that clause 2(2) imposed a trust for charitable purposes. The alternative argument, that the clause 2(2) imposed a personal obligation on the Foundation, was held to be unworkable and unnatural. 6. The Court held that clause 3, which concerned the administration and management of the trust property rather than the application of its income for charitable purposes, must be taken to be aspirational or declaratory in nature. The Court held that the objects in clause 4 were discretionary, the powers of which the Foundation would have an obligation to consider exercising from time to time. In view of the foregoing findings, the Court concluded that the Foundation would hold the entire estate as a trustee and would not receive any part of the estate as an absolute gift. 7. Finally, the Court further held that the language of 2(1) was sufficiently clear to indicate that Nina wished to “entrust” the Foundation to the supervision of a managing organization outside the Foundation, and accordingly the Court would exercise its inherent jurisdiction to establish a scheme for the administration of the charitable trusts under the Will. 8. Accordingly, the appeal was unanimously dismissed. 
+1. This appeal concerns the proper interpretation of section 17 of the Summary Offences Ordinance (Cap. 228) regarding the offence of possession of an instrument fit for unlawful purposes. Section 17 reads: “Any person who has in his possession any wrist restraint or other instrument or article manufactured for the purpose of physically restraining a person, any handcuffs or thumbcuffs, any offensive weapon, or any crowbar, picklock, skeleton-key or other instrument fit for unlawful purposes, with intent to use the same for any unlawful purpose, shall be liable to a fine at level 2 or to imprisonment for 2 years.” 2. The instrument in question was a bag containing 48 six-inch plastic cable ties, which were found in the Appellant’s backpack when he was intercepted by the police within the vicinity of an unauthorised assembly that had been dispersed. 3. At trial, the Magistrate held that the “unlawful purposes” for which an instrument is fit must be related to physically restraining or injuring a person, or housebreaking. He also held that the “unlawful purpose” for which a defendant intended to use the offending instrument could be any unlawful purpose. The Magistrate found that the cable ties could be easily linked together to physically restrain a person. He further found that the Appellant had intended to use the cable ties to bind detached metal railings or other objects on the road to form barricades or large structures for use in armed confrontations, fights, inflicting injuries or obstructing or blocking the road or traffic. Therefore, the Appellant was convicted. 4. The Court of Appeal dismissed the Appellant’s appeal against conviction and sentence. It held that the “unlawful purposes” for which an instrument is fit and the “unlawful purpose” for which a defendant intends to use that instrument are not restricted to any specific purposes. Noting that section 17 had undergone amendments, the Court of Appeal departed from previous case law, which had applied the ejusdem generis rule, a general rule of statutory interpretation, to limit “other instrument fit for unlawful purposes” to instruments fit for gaining unlawful access. Instead, it placed emphasis on the subsequent Chinese text of the section. 5. In the present appeal, the key issue before this Court is the scope of the phrases “other instrument fit for unlawful purposes” and “with intent to use the same for any unlawful purpose” under section 17. “other instrument fit for unlawful purposes” 6. Whilst the task of the Court in the present appeal is to construe section 17 in its modern form, the Court noted thatthe evolution of the section and earlier case law form an important part of the context in which the section should be construed. The Court first considered the original scope of section 17 when it was first enacted, before considering the effect of the amendments it had since undergone. 7. Originally, section 17 covered two categories only: (1) “spear, bludgeon, or other offensive weapon”; and (2) “crowbar, picklock, skeleton-key, or other instrument fit for unlawful purpose”. The Court noted that the phrase “other instrument fit for unlawful purposes” was present in the statutory provision from the very beginning, being the last item in category (2). The scope of this phrase was interpreted by earlier case law as being limited to instruments that are fit for gaining unlawful access. Such an interpretation was made by applying the ejusdem generis rule, whereby wide words (“other instrument fit for unlawful purposes”) associated with more limited words (“crowbar, picklock, skeleton-key”) within the same list of words are taken to be restricted to matters of the same character (i.e. instruments that are fit for gaining unlawful access), provided a common character can be identified. 8. In 1984, a new category covering “any wrist restraint or other instrument or article manufactured for the purpose of physically restraining a person, any handcuffs or thumbcuffs” was added to the section. The Court noted that the new category consisted of items manufactured for physical restraint which fell within a category of their own. Such an addition by the legislature was premised on the interpretation by earlier case law that “other instrument fit for unlawful purposes” did not cover just any instrument fit for any unlawful purposes, but only an instrument fit for gaining unlawful access. 9. The authenticated Chinese text of section 17 came into being in 1993 as a translation of the original English text. The Court noted that the Chinese translation does not faithfully follow the original English text in that it has re-grouped the articles and instruments into two categories.[1] Handcuffs, thumbcuffs, offensive weapon, crowbar, picklock, skeleton-key and “other instrument fit for unlawful purposes” are all grouped together as one single category. Such a grouping leaves no room for the application of the ejusdem generis rule, as the articles and instruments so grouped together simply do not share a common character. 10.The Court held that the true construction of section 17 was not altered by the introduction of the translation as the Chinese text. One could not ascribe to the legislature an intention to effect any change in meaning of the original English text merely by reason of the Chinese translation. 11.Therefore, guided by the original English text, the Court held that the ejusdem generis rule continued to apply to limit “other instrument fit for unlawful purposes” to instruments fit for gaining unlawful access. 12.The Court held that an unrestricted construction of “other instrument fit for unlawful purposes” would do violence to the language when read ejusdem generis and render the spelling out of all the specific articles or instruments in the section redundant. Furthermore, such a construction would render the scope of section 17 extremely wide and effectively turn the section into a thought crime. This would run contrary to the legislative history of the section, and the restrained, incremental approach of the legislature when amending the section in the past. “with intent to use the same for any unlawful purpose” 13.The Court held that “any unlawful purpose” should accordingly be confined with reference to the three categories of articles or instruments set out in section 17. For an instrument or article falling within the restraint category, there must be an intent to use it for restraining a person. For an offensive weapon, the defendant must intend to use it to inflict physical injury on another person, or intend to use it to threaten physical harm to another. For an instrument or article falling within the unlawful access category, the intention must be to use it for obtaining unlawful access. Application of section 17 to the present case 14.The Court held that the 48 six-inch plastic cable ties fall outside section 17. The six-inch cable ties do not fall within the restraint category and were simply not manufactured for the purpose of physically restraining a person. They are not offensive weapons nor instruments fit for gaining unlawful access. Therefore, the Appellant should not have been convicted under that section. Disposition 15.Accordingly, the Court unanimously allowed the appeal. [1] A literal translation of the Chinese text back into English can be found in paragraph 43 of the Judgment. 
+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. Background 1.1 The Appellant, then a serving Superintendent of Police, was charged with one charge of Assault Occasioning Actual Bodily Harm. He pleaded not guilty and was convicted after trial. The Principal Magistrate sentenced him to three months’ imprisonment. He appealed against the conviction and sentence. 1.2 On the day of the incident, the Appellant was deployed as the Company Commander in charge of Tier II New Territories South Company to conduct crowd control at Argyle Street, Mong Kok. It was alleged that, when the Appellant was discharging his duty, he hit with his baton a man (PW1) who was one of the persons in the crowd which the Police sought to control. 1.3 There was no dispute that PW1 had been hit by the Appellant with his baton though whether actual bodily harm had been caused as alleged was in dispute. The thrust of the defence case was that the action of the Appellant was conducted as a means to control the crowd and for prevention of crime. He did not have the mens rea required for the offence and in any case he was exempted from liability by operation of certain statutory provisions. 1.4 The grounds of appeal put forward on his behalf are: (1) The Magistrate erred in relation to the mens rea of the Appellant. (2) She failed to adequately consider whether the Appellant was mistaken as to the factual situation. (3) She erred in her finding of fact impacting on her assessment of the Appellant’s honest belief in the necessity and lawfulness of his conduct. (4) She wrongly accepted PW1’s evidence in its entirety. (5) She erred in finding that the Appellant’s blow caused the injury. (6) She erred in her assessment as to whether the strike was justified. 2. Application to adduce new evidence: 2.1 The Appellant sought to adduce for the purpose of the appeal additional evidence which is a CD-rom containing a video footage purported to be downloaded from YouTube depicting events that occurred in Mong Kok shortly before the incident. 2.2 Section 118(1)(b) of the Magistrates Ordinance provides: “… If the judge thinks additional evidence to be necessary he may receive such evidence, and for that purpose shall have the like powers under subsections (1) and (6) to (17) of section 83V of the Criminal Procedure Ordinance (Cap. 221) that the Court of Appeal would have had if the appeal had been an appeal to which that section applied, …” 2.3 The explanation for not adducing the evidence at the time of the trial was that it had not been found. The Court accepts the explanation as reasonable and is of the view that the evidence would have been admissible at the trial. 2.4 Nevertheless, as the proposed new evidence would not afford any ground for allowing the appeal, the Court considers it not necessary to receive it and refuses the application. 3. Appeal against conviction: 3.1 Assault includes battery which is an intentional or reckless act of the accused by which he applies unlawful force to another person. There are circumstances in which force may be applied lawfully to another person. Obvious examples are self-defence, prevention of crime or where the person consents to the force applied to him. If lawfulness of the act is a live issue, it is for the prosecution to prove the unlawfulness. The mental element to be proved is an intent to apply unlawful force. 3.2 In deciding these issues, if there is credible evidence which shows that the accused might have been labouring under a mistake of facts, he is to be judged according to his mistaken view of the facts, whether or not that mistake is, on an objective view, reasonable or not. 3.3 Reasonableness, however, is a factor in deciding whether the alleged perception or belief is to be accepted or not. 3.4 The law is not that if a person believes, or may be believing, that the situation requires him to use force, he can use whatever force to achieve the aim, say as in the present case, to prevent crime. Excessive force cannot be used, otherwise it would justify shooting of someone who is merely threatening to throw a punch. 3.5 Whether the force used is excessive has to be gauged in the light of what that person believes the circumstances to be. 3.6 In the present case, the relevant state of mind of the Appellant is what he had at the time he struck his baton and shortly before that. 3.7 The Principal Magistrate was aware that the Appellant was a senior police officer as well as his role and duties in the difficult time. 3.8 She found PW1 credible. The Court does not find her erred in accepting the evidence of PW1 in particular the part of his evidence which was material to her decision on what the Prosecution had to prove. 3.9 The video footages produced at trial, despite short, show a situation generally consistent with the finding of the Principal Magistrate. 3.10 The Principal Magistrate also found: (1) The Appellant did not honestly believe PW1 was actively aggressive to his colleague; and (2) Even if he did, he was not justified in the circumstances in hitting PW1 from behind with his baton as he was seen to do. 3.11 The Appellant said it was his perception and belief that PW1 was aggressive and / or not complying with police order. The Principal Magistrate was entitled to find on evidence in particular the video footages that PW1 was not aggressive and was complying with order. As regards the state of mind of the Appellant, the Court agrees with the Principal Magistrate that it was not reasonable for the Appellant to have the perception and belief he alleged to have. There is no sufficient reason for the Court to interfere with the decision of the Principal Magistrate in rejecting the asserted perception and belief of the Appellant. 3.12 Further, the Principal Magistrate was entitled to find the required intent: the intent to apply unlawful force, being the only reasonable inference supported by the evidence. It was not necessary for the Principal Magistrate to find that the Appellant had some sinister or improper motive. 3.13 The Principal Magistrate found that PW1 had suffered actual bodily harm at the left side of his neck and this was caused by the strike with the baton by the Appellant. She found that “the force applied by the Appellant on PW1 with his baton was neither technical nor trivial and the accompanying pain PW1 suffered was neither trifling nor transitory.” 3.14 Bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim; such hurt or injury need not be permanent but must be more than mere transient or trifling. 3.15 The Court does not consider the Principal Magistrate erred in making the finding that by striking his baton on PW1, the Appellant had assaulted PW1 occasioning him actual bodily harm. 3.16 Sections 45, 46 and 53 of the Public Order Ordinance were put forward to justify the actions of the Appellant. 3.17 The key words in section 45(a) are “may use such force as may be necessary” and “to prevent the commission or continuance of any offence”. 3.18 The Principal Magistrate found that the appellant was not justified to use any force at all, it follows that the question whether the level of force was reasonable did not arise. In any case, she did consider further and found the level of force used was not reasonable in the circumstances. The court finds her conclusion justified on evidence and also agrees that section 45 and section 46 are not applicable in the circumstances. 3.19 As regards section 53, the Court agrees with the Principal Magistrate that it only covers civil proceedings and not criminal proceedings. 3.20 Having considered the evidence and the reasons for the verdict, the Court considers the findings and conclusion of the Principal Magistrate reasonable and sufficiently supported by evidence. The conviction is neither unsafe nor unsatisfactory. 3.21 The appeal against conviction is therefore dismissed. 4. Appeal against sentence: 4.1 It was an unlawful act performed by a senior police officer in the course of duty. A law abiding citizen is entitled to expect no such thing to happen on him. If that happens, public confidence is shaken. That the act was done by a senior police officer in the presence of other officers including his subordinates further aggravated the matter. There is a reasonable expectation from the community of what a senior police officer should do and not do. What the Appellant did failed to meet the expectation. He also set a very bad example to his subordinates. 4.2 There is no doubt that the Appellant and his colleagues were in a very difficult situation. However, at the moment before the strike, PW1 was amongst a crowd of people moving steadily on the pavement and there was no sign of non-compliance, let alone any aggressive or abusive behaviour either on the part of PW1 or the people around him. 4.3 A police baton is a potent weapon. On this occasion, the baton was raised high and the strike was not applied without force, it landed near the neck of PW1. Despite there was only one strike, it was not a strike as a gesture. It occasioned actual bodily harm which was not serious. Had PW1 not put the clothing on that part of the body the consequence would have been more harmful. 4.4 There is substantial element of public interest in the present case. In all the circumstances, the Court is of the view that it is not wrong in principle to impose an immediate custodial sentence. 4.5 Four months as the starting point is a heavy penalty. However, taking into account the whole circumstances, it is within the reasonable range. The discount of one month is sufficient in the circumstances of the case. 4.6 As the Appellant does not show he has genuine remorse, it is right not to impose a Community Service Order. 4.7 It is also correct not to suspend the sentence. 4.8 No matter how much sympathy the Court has on the Appellant, and despite the Appellant had already spent 16 days in custody, the Court cannot accept that it is correct to order conditional discharge as the Appellant urged the Court to do. 4.9 The Court does not find the sentence imposed wrong in principle or manifestly excessive. The appeal against sentence is therefore also dismissed. 
+Mr Leung Chun Ying (“Mr Leung”) was declared the returned candidate in the elections for the Chief Executive held on 25 March 2012. On 4 July 2012, Mr Ho Chun Yan Albert (“Mr Ho”), a candidate in the same election, lodged an election petition and on 5 July 2012, Mr Ho and Mr Leung Kwok Hung both issued a notice of application of leave to apply for judicial review. All three proceedings put in issue whether Mr Leung was duly elected, alleging that he made false or misleading statements in the course of the election which amounted to illegal conduct within the meaning of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554) and that this rendered him not a “person of integrity, dedicated to his or her duties” for the purposes of Article 47(1) of the Basic Law. On 30 July 2012, the Court of First Instance refused leave to apply for judicial review, ruling that Mr Ho and Mr Leung Kwok Hung cannot rely on grounds for election petitions in a judicial review, that Mr Ho has abused the process in bringing both an election petition and judicial review in relation to the same matter and that the challenge based on Article 47 of the Basic Law was unsustainable. In a judgment of 12 September 2012, the Court of First Instance held that in relation to Mr Ho’s out-of-time election petition, the 7-day time limit contained in s34(1) of the Chief Executive Election Ordinance (Cap 569) (“CEEO”) was unconstitutional. A remedial interpretation was adopted and the section was held to be subjected to the court’s discretion to extend time. However, the Court of First Instance held that the complaints made by Mr Ho against Mr Leung did not have any real prospect of success, thus the extension of time to lodge the election petition was refused on 5 October 2012. The judge ordered Mr Ho and Mr Leung Kwok Hung each to pay half of the costs of Mr Leung on 28 September 2012. The Appeal Committee of the Court of Final Appeal held in the Determination of 13 November 2012 that no reasonably arguable grounds existed to appeal the Court of First Instance judgment regarding Mr Leung’s statements in relation to the unauthorized building works at his home. The challenges made by Mr Ho and Mr Leung Kwok Hung were disposed of but in view of the importance of some of the issues raised, leave was granted on two issues: (1) the scope of election petitions in the CEEO and their relationship to judicial review and other proceedings; and (2) the constitutionality of the absolute 7-day time limit for lodging election petitions in s34(1) of the CEEO. On the first issue, the Court emphasised the importance of considering the context and purpose of relevant provisions when engaging in statutory interpretation. In the present case, election of the Chief Executive is obviously of great importance and interest to Hong Kong people, thus the sooner any doubts as to election results are resolved the better. S32(1) of the CEEO stipulated grounds on which election petitions may be brought to challenge the result and s33 identifies the category of persons who may lodge an election petition (e.g. candidates in the election like Mr Ho) (“s33 persons”). S34 provides that the time limit for lodging an election petition is 7 days after declaration of an election result. Given this elaborate structure, the Court held that the intention must have been for election petitions to be the primary and most speedy means of questioning the result since a s33 person will likely be the class of persons most affected by an adverse election result. The limited time allowed for lodging of election petitions indicated speed was of essence. The Court held that where results of an election are challenged by someone within the class of s33 persons on the grounds set out in s32(1) of the CEEO, this can only be done by way of election petition. Judicial review is not available to any s33 persons on these grounds, but they may bring judicial review proceedings on any grounds other than those in s32(1) provided the usual requirements for judicial review proceedings have been satisfied. As for non s33 persons, nothing in the CEEO excludes them from relying on the s32(1) grounds or otherwise to bring judicial review proceedings. Again, the usual requirements for judicial review proceedings, including whether the applicant has sufficient standing to bring the action, have to be satisfied. On whether the 7-day absolute time limit to lodge an election petition pursuant to s34(1) is unconstitutional where it infringes the right of access to courts under Article 35 of the Basic Law, the Court held that the right of access to courts is not absolute and the restriction did not impair the essence of this constitutional right. The purpose of s34 is to ensure that any challenges to elections take place quickly so that the certainty of the election of the Chief Executive can be achieved as quickly as possible. The time limit is not unduly short, given the class of persons entitled to lodge election petitions proceedings are those who can be expected to have been intimately involved in an election and to pay close attention to the activities of their opponents. This time limit is in line with those imposed for similar proceedings in other jurisdictions and it being non-extendable is by no means unusual. Further, a due margin of appreciation should be accorded by the court to the legislature in deciding whether a 7-day time limit is appropriate since elections involve not only access to court considerations but also political and policy ones. The Court further noted that where one or more of the grounds in s32(1) only came to light after the 7-day limit, the election petition procedure does not provide the only means of redress since there exist judicial review proceedings, criminal proceedings or simple political realities. The 7-day absolute time limit is thus not unconstitutional. In respect of the cost appeal, since the Court differed from the reasoning of the Judge in the 30 July 2012 judgment although the effect of the Court’s decisions is the same, the Judge’s order for cost should be set aside and that there be no order as to cost. The Court made no order as to costs in respect of these three appeals since both Mr Leung and Mr Ho have to an extent succeeded but also failed in relation both to outcome as well as in their submissions on various issues. 
+1. This was an appeal against the Appellant’s conviction for criminal damage, contrary to section 60(1) of the Crimes Ordinance (Cap. 200) (“CO”). 2. In October 2014, the Appellant took part in a Distributed Denial of Service (“DDoS”) attack on the website of the Shanghai Commercial Bank (the “Bank”). During the DDoS attack, the website server of the Bank received a total of 504,592 “requests”, of which 6,652 came from the Appellant’s computer over 16 seconds. The DDoS attack was a failure because the server had enough surplus capacity to prevent the attack from affecting its other operations. 3. The Appellant was charged with criminal damage, contrary to section 60(1) of the CO. Under section 59(1A) of the CO, damage to property included “misuse of a computer”. “Misuse of a computer” was defined to include (1) causing the computer to function other than as it has been established to function by its owner (“paragraph (a)”), and (2) adding data to the contents of a computer (“paragraph (c)”). 4. The central questions before the magistrate were whether the Appellant was the user of the computer at the time, and whether the Appellant participated in the DDoS attack intentionally or by accident. It was found that he was the user of the computer and his participation was intentional. The magistrate therefore found that the Appellant had misused the Bank’s computer as defined under section 59(1A), and convicted the Appellant. The conviction was upheld upon appeal to the Court of First Instance. 5. The principal issue in this appeal was whether the Appellant had caused the computer “to function other than as it has been established to function by or on behalf of its owner”. The Appellant argued that the Bank’s computer was established to receive and respond to “requests”. As the computer responded to such “requests” exactly as it had been programmed to do during the DDoS attack, the Appellant contended that the attack caused no difference to the way the computer functioned. 6. The Court rejected the Appellant’s submissions. The Court held that paragraph (a) of section 59(1A) is not concerned with the way that the computer is programmed to work, but what the owner has set it up to do. 7. On the facts, the website and the Bank’s server were established to provide banking service, not to deal with a multitude of “requests” made in order to inconvenience the Bank and generate publicity for the attackers. The Appellant had therefore caused the computer to function other than how the Bank has established it to function. The Appellant’s conviction is therefore upheld on the basis of paragraph (a) of section 59(1A). 8. Had it been necessary to consider paragraph (c) of section 59(1A), the Court would have held that the conviction in reliance upon paragraph (c) was unjust to the Appellant. This is because the prosecution based its case before the magistrate solely upon paragraph (a), and the Appellant therefore adduced no evidence in relation to paragraph (c). However, given this Court’s decision in regards paragraph (a), the magistrate’s wrongful reliance on paragraph (c) was immaterial in this appeal. DISPOSITION 9. Accordingly, the appeal was unanimously dismissed and the Appellant’s conviction was upheld. 
+1. The matter underlying these appeals was connected with the case of Ao Man-long (“Ao”), formerly Secretary for Transport and Public Works in Macau, who was convicted there on multiple counts of corruption, money laundering and related offences. Madam Tam Kit-I (“Tam”), who resided in Macau, had a bank account at the Wing Hang Bank in Hong Kong (“Account”). In 2006, there were transfers of funds between Tam’s Account and certain accounts maintained or controlled by Ao. It was alleged that those funds were the proceeds of corrupt transactions involving Ao. After Ao was arrested, a balance of $22.4 million remained in the Account. The appeal concerned the fate of that balance. 2. The authorities in Hong Kong initially contemplated proceedings against Tam under the Prevention of Bribery Ordinance (Cap. 201). In 2007, they obtained a restraining order under that ordinance freezing the Account. Later, the authorities shifted their focus to a potential charge of money laundering under the Organized and Serious Crimes Ordinance (Cap. 455) (“OSCO”). Thus, on 12 January 2011, prosecutors obtained a magistrate’s warrant for Tam’s arrest for such offence. Then, on 14 January 2011, the Secretary for Justice (“SJ”) obtained a restraint order under OSCO, again freezing the Account (“the Restraint Order”). The court later ordered the Restraint Order to be extended and to remain in force until further order of the court. Those orders were served on Tam in Macau. Apart from one occasion in June 2008 when she came to Hong Kong and left on the same day, she has remained outside the jurisdiction, so no criminal proceedings against her have taken place. 3. In 2014, the SJ applied under section 8(1)(a)(ii)(B) of OSCO to confiscate the funds in the Account on the basis that Tam had absconded. Campbell-Moffat J (“the Judge”) dismissed the application. She did so on the basis that Tam had not been shown to have absconded without embarking on the process of inquiry and determination prescribed by sections 8(3) to 11 for deciding whether to grant a confiscation order. The Judge held, however, that the Restraint Order remained in force. 4. In 2019, Tam applied to discharge the Restraint Order. Relying on sections 2(16A)(a) and 15(5)(b) of OSCO, Tam contended that the Restraint Order was automatically discharged when the Judge decided in 2016 not to grant the confiscation order sought. The Judge rejected that argument, holding that those sections did not apply to discharge the Restraint Order since the reason for her refusal of the confiscation order sought was that Tam had not been shown to have absconded. 5. The Court of Appeal allowed Tam’s appeal. The court held that sections 2(16A)(a) and 15(5)(b) operated to discharge the Restraint Order when the Judge decided not to grant the confiscation order sought, no matter what the reason for that decision was. 6. The Appeal Committee granted leave to appeal to this Court on two questions. Leave was initially granted to the SJ to appeal from the Court of Appeal’s judgment following both civil and criminal routes of appeal (FACV 12/2022 and FACC 4/2022). However, concerns were canvassed at the leave hearing as to the possibility that the Court of Appeal’s judgment was a nullity, depending on this Court’s decision as to whether the appeal should be characterised as civil or criminal. Consequently, the parties took steps to cater for different contingencies with appropriate fresh orders issued for the grant of leave. 7. The two questions arising on these appeals were as follows: (a) Whether a restraint order freezing certain assets made under OSCO fell to be discharged as a matter of law where the court decided not to grant an application for a confiscation order (“Question 1”); (b) Whether an appeal relating to the discharge of such a restraint order was to be characterised for procedural and jurisdictional appellate purposes as civil or criminal (“Question 2”). Restraint order not discharged unless purpose spent 8. On Question 1, this Court held that the Judge’s decision not to grant a confiscation order on the basis of her conclusion that Tam had not absconded did not result in the automatic discharge of the Restraint Order. On a proper contextual and purposive construction of the OSCO provisions, a restraint order would be discharged pursuant to those sections only if the purpose of that order was spent, as where there was no longer any extant or prospective confiscation order for the enforcement of which the freezing of the affected assets had to continue. In the present case, the Judge’s decision to refuse the confiscation order sought was taken for a reason which did not involve any decision on the merits of the application. It was also taken without eliminating the prospect of a confiscation order eventually being made, for example, upon Tam’s demise pursuant to section 8(1)(a)(ii)(A). The mere fact that the Judge had decided not to grant the confiscation order sought was not itself sufficient to trigger discharge of the Restraint Order. The Court of Appeal was wrong to hold that the reason for a court’s decision not to grant a confiscation order did not matter. Judge’s approach to “abscond” doubted 9. Although not strictly arising for consideration, this Court questioned the correctness of the Judge’s approach to the meaning of “abscond” under OSCO, and decided to review her reasoning for future reference. Without seeking to define the term, the Court considered the essence of “abscond” to involve the evasion of apprehension to face criminal proceedings for the offence concerned. In deciding whether a person had absconded, there was no requirement that the person must have been arrested or charged, or for proceedings to have been instituted, prior to the person’s act of absconding. On the facts of the present case, it was hard to avoid the conclusion that Tam was an absconder evading arrest. Had this been the Judge’s conclusion, the disposal of the SJ’s confiscation application would have followed a more normal course of events focusing on the merits of that application. Appeal relating to discharge of restraint order civil in character 10. On Question 2, this Court held that decisions relating to restraint orders are civil in character. The regime for the enforcement of confiscation orders underlies decisions relating to restraint orders. Despite the criminal nature of proceedings for a confiscation order, the enforcement regime is collateral to the criminal process and is civil in character. Therefore, in the present case, the appeal against the Judge’s decision refusing to discharge the Restraint Order was civil in character. The Court of Appeal had jurisdiction to entertain the appeal, and in giving its judgment the Court of Appeal was properly constituted. Disposition 11. Accordingly, this Court unanimously allowed the appeal in FACV 12/2022 (being the civil appeal from the Court of Appeal’s judgment) and set aside the Court of Appeal’s order discharging the Restraint Order. There was no need to make any order in the other appeals. They were accordingly dismissed with no order as to costs. 
+1. Every Hong Kong Identity Card (“HKID card”) contains on its face the holder’s photograph and a gender marker indicating the holder as male or female. The gender marker merely operates as an element for verifying the holder’s identity; it neither establishes nor signifies recognition of the holder’s sex as a matter of law. However, for transgender persons seeking to have the gender marker amended to reflect their acquired gender (i.e. the gender with which they intrinsically identify, as opposed to the gender assigned at birth), the Commissioner of Registration (“Commissioner”) adopts a policy (“Policy”) requiring them to have undergone full sex reassignment surgery (“SRS”) unless they are medically exempted from doing so. 2. The appellants are female to male (“FtM”) transgender persons who have identified themselves as male since their youth. Having been diagnosed with gender dysphoria, they each underwent a lengthy course of medical and surgical treatments, including psychiatric treatment, hormonal treatment, mastectomy (the removal of breasts) and real life experience (living life as male with professional support and guidance). As a result, they have acquired masculine bodily features, and the gender dysphoria of each of them has been medically certified to have been sufficiently attenuated to enable their social integration and psychological well-being without the need for additional surgical procedures. 3. In the light of these changes, the appellants applied to the Commissioner to amend the gender markers on their HKID cards. The Commissioner refused their applications (“Refusals”) on the basis that they had not undergone full SRS as required by the Policy which, in the case of FtM transsexualism, involves a highly invasive surgery to remove the uterus and ovaries and construct an artificial penis. This surgery carries certain post-operative risks and possible complications, and is medically unnecessary for many transgender persons, including the appellants. 4. The appellants brought judicial review proceedings to challenge the Refusals which they contended violate their constitutional right to privacy under Article 14 of the Hong Kong Bill of Rights (“BOR 14”). The judicial reviews were dismissed by both the Court of First Instance and the Court of Appeal. Leave to appeal to this Court were granted by the Court of Appeal. 5. There was no dispute between the parties that: (a) the appellants’ BOR 14 rights included their rights to gender identity and physical integrity; (b) the Policy encroached upon such rights by causing the appellants regular humiliation, distress and loss of dignity in routine activities involving the production and inspection of their HKID cards, and requiring them to choose between suffering these consequences and undergoing a highly invasive and medically unnecessary surgery; and (c) such encroachment was rationally connected with the legitimate aim of establishing a clear administrative guideline for deciding when an amendment to the HKID card gender marker was to be accepted. 6. The focus of these appeals was on whether the condition of full SRS underlying the Policy could be justified as proportionate and as having struck a reasonable balance between the Policy’s societal benefits and the appellants’ BOR 14 rights. The applicable standard of scrutiny 7. This Court agreed with the courts below that it was appropriate to apply the “no more than reasonably necessary” standard in assessing the proportionality of the Policy since it concerned core values relating to intimate personal characteristics which engaged a narrower standard of scrutiny. Proportionality: reasonable necessity 8. Differing from the courts below, this Court held that the Policy was disproportionate in its encroachment upon the appellants’ BOR 14 rights. This Court was unable to accept the following three justifications advanced by the Commissioner. 9. First, this Court did not accept that full SRS was the only workable, objective and verifiable criterion for amending the HKID card gender marker. The availability of a medical exemption under the existing Policy as well as examples of different policies adopted in other jurisdictions showed that other criteria were plainly workable without causing administrative difficulty. Should a criterion other than full SRS were to be adopted, any possibility of questionable medical certification could be addressed by the Commissioner stipulating what constituted acceptable certification. 10. Secondly, this Court did not accept that full SRS was justified by a need to avoid administrative problems that would allegedly arise if other criteria were to be adopted causing incongruence between a transgender person’s physical appearance and the HKID card gender marker. The kind of incongruence which most commonly caused problems arose out of the discordance between the gender marker and a transgender person’s outward appearance, not the appearance of the genital area. In the great majority of cases, leaving the gender marker unamended simply because a transgender person had not undergone full SRS produced greater confusion or embarrassment, and rendered the gender marker’s identification function deficient. This Court did not deny that there were areas of society where genuine and difficult issues arose concerning the appropriate treatment of transgender persons, but the resolution of such difficulties normally did not bear on the HKID card gender marker. 11. Lastly, this Court did not accept that the exceedingly small risk of reversal of FtM transition leading to pregnancy justified the full SRS requirement. Reasonable balance between the Policy’s societal benefits and the appellants’ rights 12. Since the Policy had failed the proportionality test, it was strictly unnecessary to go on to consider whether it had struck a reasonable balance. However, this Court considered that the Policy did impose an unacceptably harsh burden on the individuals concerned and did not reflect a reasonable balance with the societal benefits of the Policy. Disposition 13. Accordingly, this Court unanimously allowed the appeals and quashed the Refusals. This Court also granted a declaration that the Refusals and the underlying Policy requiring FtM transgender persons to undergo full SRS as a necessary condition for amending the gender markers on their HKID cards, violated the appellants’ BOR 14 rights and were unconstitutional. 
+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. 
+The respondent entered into an agreement to purchase property in a high-rise office building from the appellant. The purchase price was to be paid in two instalments: a deposit of ten percent and the balance upon completion. However, on the day for completion, the respondent refused to complete and demanded the return of the deposit. The respondent argued that the appellant had failed and/or was unable to give good title. In particular, the respondent said that the appellant failed to produce all the title deeds required under the agreement, providing only certified copies and no originals for some title deeds exclusively relating to the property and tendering only certified copies of attested copies (and for one document, there was no copy at all) in respect of certain other documents not exclusively related to the property, known as the Pump Pit Tenancies and Wayleave Agreements. The appellant refused to return the deposit and subsequently sold the property to another purchaser for a lower price. The respondent brought an action before the Court of First Instance, seeking repayment of the deposit and costs. The appellant counterclaimed damages for the loss suffered by the respondent’s repudiation of the agreement. The Judge dismissed the respondent’s claim and gave judgment on the counterclaim for the appellant. The Court of Appeal reversed the Judge, holding that at completion the vendor of a property has a duty to produce originals of title deeds where they relate exclusively to the property being sold – but dismissing the respondent’s arguments about the inadequacy of the documents not exclusively related to the property. The Court of Appeal held that vendors must provide clear and cogent proof of the contents of any missing original title deeds, their due execution, and the fact of their loss or destruction – which the appellant had failed to do. Both parties appealed, the appellant arguing for the dismissal of the respondent’s claim (“the Appeal”), and the respondent arguing that it was entitled at least to certified copies of the original Pump Pit Tenancies and Wayleave Agreements (“the Cross-appeal”). The Court of Final Appeal unanimously allowed the Appeal, but dismissed the Cross-appeal. The Appeal raised issues concerning the scope of the appellant’s obligation of giving good title to the property at completion, in particular regarding the delivery of original title deeds or the provision of a satisfactory explanation for the absence of any such originals. In their concurring judgments, the Court held that a distinction had to be drawn between three related rights enjoyed by a purchaser, namely: its entitlement to require a vendor to produce documents as proof of title at the stage of showing title; its entitlement to require the vendor to deliver documents of title upon completion; and its common law proprietary right to all title deeds relating exclusively to the property which are in the vendor’s possession or power. The requirements of proving good title are set out in s 13 of the Conveyancing and Property Ordinance, Cap 219 (“CPO”). No issue on those requirements arose on the Appeal. As to the third entitlement, a purchaser’s proprietary right to title deeds is, as against the vendor, a right to have all such documents in the vendor’s possession or power. That right is not co-extensive with the second right mentioned above. A vendor’s failure to hand over such documents in its possession or power may be vindicated by an action in detinue. There was also no issue in the present case regarding that right. The Appeal centred on the second right. The Court held that the purchaser’s right to refuse to complete on the ground that certain original title deeds (as opposed to certified copies) have, without satisfactory explanation, not been provided arises only where the absence of the originals indicate the realistic possibility that some transaction exists affecting the land which could affect the purchaser if it took title. No such risk had been shown in the present case, so the purchaser had wrongly refused to complete. The Cross-appeal was dismissed as there was no realistic possibility that the Pump Pit Tenancies and Wayleave Agreements could still have any effect on title. Furthermore, certification of attested copies was acceptable for showing or proving title under s 13 of the CPO. 
+1. There are 5 appellants in these two appeals which were heard together. Each of them was charged with the offence of contravening an Administrative Instruction (“section 11”) issued under section 8(3) of the Legislative Council (Powers and Privileges) Ordinance(“LCPPO”), namely failing to “behave in an orderly manner” within the precincts of the Chamber of the Legislative Council (“LegCo”)[1]. Three of them were defendants in the case of ESCC 3350/2014 (HCMA 617/2015) : Yip Po‑lam (D1 at trial, hereinafter called “D1”), Cheung Hon‑yin (D2 at trial, hereinafter called “D2”) and Wong Kan‑yuen (D3 at trial, hereinafter called “D3”). The other two were defendants in the case of ESCC 3406/2014 (HCMA 438/2015) : Cheung Kwai‑choi (D1 at trial, hereinafter called “D4”) and Chow Nok‑hang (D2 at trial, hereinafter called “D5”). The cases stemmed from two different incidents of demonstration in the precincts of the Chamber of LegCo. With consent from parties, the two cases of appeal were heard together. As D2 was absent allegedly due to health reason, his case was severed. 2. All the appellants appeal against conviction. D1 and D3 also appeal against sentence. D1 was sentenced to an imprisonment term of two weeks and D3 a term of three weeks. Prosecution Case ESCC 3350/2014 3. On 6 June 2014, the Finance Committee (“FC”) of LegCo held a meeting at which the funding application for the advance works of the “North-East New Territories Development Proposal” (“NENT Proposal”) was discussed. 4. At about 5:27pm, protesters rushed into the Lobby of the precinct of the Chambers and occupied it. Some of them, including D3, resisted the effort of staff and police officers to close the doors. The doors were obstructed until around 9:57pm. 5. At about 9:45pm, the FC meeting was adjourned. However, a large number of protesters remained in the Lobby and refused to leave despite repeated warnings. During that time, D1 delivered two speeches. At about 11:35pm, protesters started to leave with the last batch left after midnight. ESCC 3406/2014 6. The FC meeting resumed at 3pm on 13 June 2014. Some protesters demonstrated in the designated public activity area (“DPAA”) at the car park of the LegCo Complex. 7. At about 5:05pm, D4 went onto the Canopy and with the assistance of D5 hang up four big banners. They ignored warnings from LegCo security staff and the order was allegedly disturbed. Appeal against Conviction 8. Major grounds of appeal include that section 11 of the Administrative Instruction is unconstitutional, the Magistrates erred in relation to the elements of the offence, and the conviction is unsafe or unsatisfactory. 9. Section 11 of the Administrative Instruction, which was issued pursuant to section 8(3) of the LCPPO, restricts the rights to freedom of expression, demonstration and assembly, which are rights guaranteed under the International Covenant on Civil and Political Rights and enshrined in the Basic Law. 10. The relevant rights can only be restricted if two requirements are satisfied: (1) The restriction is prescribed by law; and (2) The restriction is necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. 11. The restriction is prescribed by law by virtue of section 11. The question is whether the restriction imposed in section 11 is necessary. 12. To be necessary, the following criteria have to be met : (a)The restriction or limitation pursues a legitimate aim; (b) The restriction or limitation is rationally connected to that legitimate aim; (c) The restriction or limitation is no more than is necessary to accomplish that legitimate aim; and (d)A fair balance is struck between the rights of the individual and the interests of the community. 13. Owing to its constitutional role and functions as the sole legislature body in the HKSAR, the LegCo has institutional uniqueness. 14. It is also where members of the community may go and express their view. It is an important constitutional right. Nevertheless, exercise of the right must be subject to regulation, otherwise the role and functions of the LegCo as well as the rights of other members of the community may be jeopardised. 15. Section 11 only prohibits failure to “behave in an orderly manner” within the precinct of the Chambers. Whether a conduct amounts to failure to “behave in an orderly manner” is to be judged on evidence by applying the ordinary meaning of “behave in an orderly manner” to the time, place and circumstances in question, having regard to the purpose of the Administrative Instruction, of which section 11 is a part. 16. The restriction is necessary in the interest of public order (ordre public) as well as protection of the rights of those who enter and stay in the precincts of the Chamber for a legitimate purpose. Creating a secure and dignified environment which is conducive to the legislature carrying out its constitutional function is a legitimate aim. Setting a standard of orderly behavior and regulating the behavior of members of the public in the precincts of the Chamber are rationally connected to that aim. 17. If an incident which section 11 seeks to regulate occurs, there will be impact on the important duties and functions which the LegCo has to execute, and the rights of members of the public to observe LegCo proceedings may be compromised. 18. The restriction is clearly defined. The Court finds that restricting the relevant right of the people inside the precinct of the Chambers by means of penalising a person for failing to “behave in an orderly manner” is rationally connected to a legitimate aim, the limitation is necessary and not disproportionate, it strikes the right balance between the rights of the individual and the interests of the community. 19. The Court therefore finds section 11 constitutional and valid. 20. The Court does not agree that only the conduct which has, or is likely to have, the effect of direct and actual disruption or disturbance of the LegCo proceedings or other members of the public in observing such proceedings amounts to failure to “behave in an orderly manner”. 21. The Court does not agree that the prosecution has to prove that the accused had both failed to “behave in an orderly manner” and “failed to comply with the direction of the officer”. These are two separate offences. 22. The Court does not accept the submission that as a matter of course where there was no order in existence or the proper order had been disturbed or disrupted, the duty of behaving in an orderly manner no longer exists. 23. The Court does not agree that section 11 only targets persons officially permitted into the precincts of the Chamber but not those who enter without permission. 24. In all the circumstances, having perused the video footages already adduced as evidence at trial, the Court finds the conclusion of the Magistrate that D1 and D3 had each failed to “behave in an orderly manner” reasonable, accord with the legislative purpose and sufficiently supported by evidence. 25. As regards the convictions of D4 and D5, even though the incident took place in a DPAA, it was part of the precinct of the Chambers. The Court is of the view that the Magistrate was entitled to find on evidence that the conduct of D4 amounted to failing to “behave in an orderly manner” and D5 was acting in concert with D4. 26. The Court therefore dismisses the appeal against conviction by the relevant Appellants. Appeal against sentence 27. The Court does not consider D1 a suitable candidate for CSO, nor is CSO appropriate in her case, for the following reasons: (1) Despite the incident was peaceful, it was prolonged and D1 did not play a minor role; (2) D1 has been convicted of offences of like nature though not identical; and (3) There is no indication that she is in genuine remorse. 43. The starting point of two weeks is not wrong in principle or manifestly excessive. There is nothing which justifies a discount. The Court does not consider it appropriate to have the sentence suspended. Fine is plainly insufficient to reflect the true culpability of D1 in the case. 44. In relation to D3, despite there is no evidence to prove that his conduct directly caused any injuries, the chaotic situation in which he actively took part had caused the injuries of several staff. Even though he did not have any prior criminal conviction, in the circumstances of the present case, immediate custodial sentence is the only appropriate sentence to impose. A fine is insufficient to reflect the nature and seriousness of the conduct and its consequences. CSO is not appropriate due to the lack of genuine remorse on the part of D3. There is no justification to suspend the imprisonment term. 45. As the sentence imposed respectively on D1 and D3 is neither wrong in principle nor manifestly excessive, the appeal against sentence is also dismissed. [1] Contrary to section 20(b) of LCPPO, Cap 382, Laws of Hong Kong. 
+1. The Respondent is a Hong Kong permanent resident who claimed to be an employee of two companies, a Hong Kong company and a company incorporated in Pennsylvania in the United States (“the US Company”). His case was that he had suffered serious personal injuries by falling into a trench while working for his employers in a sewage treatment plant in Mainland China. Following his accident, he returned to Hong Kong to receive extensive medical treatment. 2. The Respondent obtained leave to serve a writ on the US Company in the United States, relying on three so-called jurisdictional “gateways” contained in O. 11, r. 1 of the Rules of the High Court, one of which was O. 11, r. 1(1)(f) (“Gateway F”). Gateway F allows a writ to be served on a defendant situated outside Hong Kong, and the Hong Kong courts to assume jurisdiction, if the claim is founded on a tort and the damage was sustained within the jurisdiction. Interlocutory judgment in default was entered in the Respondent’s favour against the US Company. 3. After the Hong Kong company settled the Respondent’s claim, the Appellant applied for, and was granted leave, to join in the proceeding pursuant to s. 25A(a) of the Employees Compensation Assistance Ordinance (Cap. 365) (“ECAO”), since, as a result of the settlement, it considered itself at risk of having to satisfy the Respondent’s claim against the US Company. The Appellant then applied to set aside the order granting leave to serve the US Company and the interlocutory judgment. 4. The Court of First Instance held that “damage” under Gateway F includes indirect or consequential damage. Although the Respondent was injured in Mainland China, he had received medical treatment and experienced pain, suffering and loss of amenities in Hong Kong, which was held to constitute sufficient indirect damage, therefore satisfying the requirements under Gateway F. 5. The Appellant appealed to the Court of Appeal, which agreed that the requirements under Gateway F were satisfied. The Appeal Committee granted leave to appeal on one question of law of great and general importance concerning the interpretation of Gateway F, as well as a new question relating to the Appellant’s standing to intervene in the light of s. 33(d) of the ECAO, which provides that no claim against the Employees Compensation Assistance Fund (“the Fund”) lies in respect of injuries to employees who were engaged outside Hong Kong by an employer who is outside Hong Kong and has no place of business in Hong Kong. 6. The Court held that a person is “engaged” by an employer under s. 33(d) of the ECAO when that person enters into a contract of employment whereby he or she is hired as an employee. Although s. 33(d) was not directly addressed in the lower courts, when discussing other jurisdictional gateways, in particular, those concerning the making of contract within the jurisdiction, the Court of First Instance found that the Respondent’s employment contract was entered into in the United States. This finding was upheld by the Court of Appeal. Since it was not disputed that the other two elements of the provision were satisfied, the Court held that s. 33(d) precludes the Respondent from making a successful claim against the Appellant for a statutory relief payment. Therefore, the Appellant was not at risk and had no standing to challenge the Court’s assumption of jurisdiction against the US company. 7. The Court went on to consider whether the default judgment against the US Company should be set aside on the ground that the case did not come within Gateway F. The Court held that the natural and ordinary meaning of Gateway F is that it includes indirect or consequential damage. The gateways are only one element of the jurisdictional test. The court can refuse leave to serve a writ outside the jurisdiction, notwithstanding that one or more of the gateways are satisfied, if a case falls outside the letter and spirit of the gateways, or if Hong Kong is not the most appropriate forum. Therefore, there are sufficient safeguards against inappropriate invocation of the local courts’ jurisdiction. The indirect damage suffered by the Respondent in Hong Kong was sufficient to satisfy Gateway F. DISPOSITION 8. Accordingly, the Court unanimously dismissed the appeal. 
+1. The appellant is a Mainland resident and the mother of G, a girl who was born in 2007 and is a Hong Kong permanent resident by birth. Her father is the respondent, also a Hong Kong permanent resident, who was and still is married with a wife and two children in Hong Kong. Shortly after G was born, the appellant and the respondent separated and the appellant brought G to live on the Mainland. 2. In 2012, the appellant applied in the Family Court for maintenance of G under section 10 of the Guardianship of Minors Ordinance (Cap.13) (“GMO”) (“Hong Kong proceedings”) against the respondent. The respondent acknowledged service and then commenced proceedings on the Mainland, seeking both custody and maintenance for G against the appellant. The respondent then applied for a dismissal of the Hong Kong proceedings on the ground that the court has no jurisdiction, or alternatively, to stay the Hong Kong proceedings on the ground of forum non conveniens. 3. The respondent’s application was dismissed by Deputy Judge Wong (“Judge”), who was of the view that the court did have jurisdiction. On appeal, the Court of Appeal allowed the respondent’s appeal and stayed the proceedings. The Court of Appeal was prepared to proceed on the basis that the court had jurisdiction, but held that the court below should have declined to exercise its jurisdiction. The appellant appealed to this Court. 4. Four questions arose on this appeal: First, does the Court have jurisdiction to entertain applications under the GMO in respect of a child who is neither ordinarily resident nor present in Hong Kong? Secondly, if such jurisdiction exists, does the Court have a discretion to decline jurisdiction other than on forum non conveniens principles? Thirdly, if it has such a discretion, what are the criteria to be considered in deciding whether jurisdiction should be declined? Fourthly, if the appellant succeeds in establishing jurisdiction under the GMO or inherent jurisdiction, whether the Judge’s dismissal of the respondent’s forum non conveniens stay application stands? 5. In relation to the first question, the majority of the Court held that jurisdiction was established as of right when the respondent was duly served and acknowledged service within the jurisdiction. On the true construction of the GMO, the fact that the minor in respect of whom the maintenance order is sought is not ordinarily resident or physically present in Hong Kong would not preclude the Court from making an order for maintenance. Tang PJ whilst agreeing that, as the Court of Appeal had assumed, the court had jurisdiction, held that the Court of Appeal was wrong to have concluded that the Judge ought to have declined jurisdiction. He also held that had the appellant and the respondent been married when G was born, the court would have had jurisdiction to make an order for maintenance under the Matrimonial Proceedings and Property Ordinance (Cap.192); the Court should not decline to exercise its statutory jurisdiction under section 10 of the GMO for a child of an unmarried couple where it would make an order in favour of a child of a married couple. 6. On the second question, the Court held that in the context of this case, the court did not have a discretion to decline jurisdiction other than on forum non conveniens principles. The third question thus did not arise and was not addressed by the Court. 7. Finally, as to the fourth question, the Court held that there was nothing before the Court to cast doubt on the correctness of the Judge’s decision to dismiss the respondent’s application. Accordingly, the Court allowed the appeal and restored the Judge’s order. 
+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. On 4 October 2012, the appellant was convicted after trial on one charge of conspiracy to defraud and served his sentence. On 14 March 2014, the Court of Appeal dismissed his application for leave to appeal against conviction. On 4 August 2014, the Court of Final Appeal granted the appellant leave to appeal from the judgment of the Court of Appeal. However, the appellant passed away before the scheduled hearing could take place before the Court of Final Appeal. 2. The appellant’s widow wished to continue the appellant’s appeal. On 14 January 2015, the appellant’s widow took out a summons for leave to be made a party to the appeal and for the appeal to be carried on as if she had been substituted for the appellant notwithstanding his death. Thus, in the present case, the Court was concerned only with the disposal of that summons and not the disposal of the substantive appeal. 3. The principal questions the Court had to determine were: (i) Is there jurisdiction to continue a criminal appeal after an appellant’s death and, if so, on what basis, or does the appeal simply abate (i.e. terminate)? (ii) If there is jurisdiction to continue, is it necessary to substitute a living party for a deceased appellant and, if so, what is the power and procedure by which the Court can do so? (iii) Assuming there is jurisdiction to continue the appeal, how is the Court’s discretion to be exercised in the present case? 4. The Court held that where leave to appeal to the Court of Final Appeal is granted, there is a strong public interest in such an appeal being heard and this interest goes beyond that of an individual appellant. In relation to the three questions, the Court held, first, that it retained jurisdiction to hear a final criminal appeal where a convicted appellant has applied for leave to appeal but then subsequently dies and has a discretion whether to do so or not. This jurisdiction is found in the Hong Kong Court of Final Appeal Ordinance (Cap. 484), properly construed according to its context and purpose. 5. Secondly, the Court held that it is a matter of discretion whether the Court considers that substitution of a living party for the deceased appellant is appropriate when it is exercising its jurisdiction to continue the appeal after the appellant’s death. As the Court has jurisdiction to hear an appeal notwithstanding an appellant’s death, the Court’s exercise of discretion to order a substitution of a living party for the deceased appellant in order to achieve that purpose is plainly an exercise of implied power ancillary to the Court’s statutory jurisdiction. 6. Finally, the Court held that the discretion whether to continue an appeal after an appellant’s death must be exercised on a principled basis. Factors relevant to the exercise of this discretion may include: (i) whether leave to appeal has been or will be granted; (ii) the existence of an applicant who wishes for the appeal to be continued; (iii) the continuation of the appeal on a proper adversarial basis; and (iv) the reasons of the applicant for wishing the appeal to be continued. The Court held that this list of factors was not exhaustive nor was it intended to apply as a checklist of factors that had to be present in every case. However, it highlighted that the grant of leave would likely be a critical factor. This is because where leave to appeal has been granted on a point of law, it demonstrates that the Court is of the view that the appeal is of sufficient importance to be heard by the Court as the final appellate court in Hong Kong. 7. In the present case, the Court had granted leave to appeal on the basis that a point of great and general importance was involved and that it was reasonably arguable that substantial and grave injustice had been done to the appellant. Thus, the Court held that, taking all the relevant factors into account, in particular the critical factor of the grant of leave to appeal, it was a case in which it was appropriate to exercise the Court’s discretion to permit the appeal to continue notwithstanding the appellant’s death. 8. Accordingly, the Court ordered that, notwithstanding the death of the appellant: (1) the appellant’s spouse be made a party to the appeal in her capacity as the personal representative of her husband’s estate in substitution for the appellant; and (2) the appeal be continued in her name in such capacity. 
+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. 
+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. 
+Background 1. An ex-government doctor was charged with the common law offence of misconduct in public office. The charge arose from the following circumstances. 2. In 1994, the defendant began working for the Department of Health as a medical officer and, in 1999, was posted to a health centre at San Po Kong; the purpose of the centre was to provide medical and health services for the aged. She was officer-in-charge and the only doctor there, the only person therefore with the power to make requests of two government laboratories for clinical tests to be conducted on bodily samples collected from members of the centre. 3. The defendant had to comply with guidelines and circulars issued by the Department with respect to the standards of behaviour expected of her in her work at the centre. In gist, she was to serve the public with integrity, honesty, and impartiality: she must avoid conflict between her official duties and her private interests, must not coerce or induce her subordinates to act to her benefit or that of her family members, and must not abuse the powers, duties, and discretions exercisable by virtue of her official position. 4. As holders of Hong Kong Identity Cards, the defendant’s daughter was entitled to free medical services at a families clinic and, on payment of a small consultation fee, the defendant’s brothers and sister could obtain medical services at an out-patient clinic. However, for the 12 years between 2004 and 2016, the defendant had, on 67 occasions, under cover of the centre’s request forms issued by her, delivered for testing by the laboratories clinical samples belonging to her family members, namely, two elder brothers, an elder sister, and her daughter, none of whom were aged. As per the defendant’s requests, the laboratories carried out the tests and sent to the centre a total of 75 reports in the period covered by the charge. Upon receipt, staff members of the centre had the reports handed over to the defendant herself. 5. In 2016, a complaint was received from a member of the centre, alleging that the defendant had provided medical services at the centre to her family members. In accordance with proper procedures, the Department issued to the defendant a Questionnaire with respect to the complaint. In reply, she apologised and admitted to the allegations but explained that she did so out of concern for the health of her family members and that she did not know it was improper to do so. 6. The Independent Commission Against Corruption took over the investigation, at the conclusion of which the Commission charged the defendant with the offence of misconduct in public officer, alleging that she had, in 12 years, (i) made or caused members of her staff at the centre to process the 75 requests, (ii) falsely represented to the laboratories that the 75 clinical specimens sent to them for analysis were collected from members of the centre, and (iii) required and caused the two laboratories to carry out the tests as per the defendant’s requests and to issue the reports to the defendant. Issues and the court’s rulings on them 7. The major issues at trial were whether the defendant acts were “wilful misconduct” in common law, whether her conduct was without reasonable excuse or justification, and whether her conduct was serious enough as would amount to a criminal offence. 8. The court finds that the defendant was the most important person at the centre. Her official duties were to provide professional services which, in a functional sense, made the centre a health centre. Her duties included the powers and discretions to decide whether clinical tests on bodily samples should be carried out for diagnostic purposes and to cause the tests to be carried out at the two government laboratories. The court finds proved beyond all reasonable doubt that the defendant was at the material time a public officer and that the misconduct had taken place in the course of her public office. Wilful misconduct 9. While none of the personal particulars entered by the defendant on the centre’s request forms were false, the court rules that the defendant had made a false representation by conduct: by the very use of the centre’s request forms, the defendant had misrepresented to the laboratories that her family members were members of the centre and were, as such, entitled to the professional services provided by the laboratories. The court attaches no weight to the defendant’s explanations in her response to the Questionnaire, and finds (i) the defendant’s acts dishonest, and (ii) that, as a well-educated professional and having worked as a civil servant for decades, she herself must have realised that her misconduct was both unlawful and dishonest. Reasonable excuse or justification 10. In light of the totality of evidence, the court finds that the defence has failed to raise, on the evidence, the issue of reasonable excuse or justification, and that the defendant’s acts were without reasonable excuse or justification. There is no room for an argument for “mistake” or “error of judgment.” Seriousness of the misconduct 11. In the court’s view, there is a special feature in the present prosecution, a feature that does not appear to have been subject to previous judicial decision: namely, misappropriation of public resources. 12. Similar to cases like HKSAR v Hui Rafael Junior and Ors (2017) 20 HKCFAR 264, HKSAR v Tsang Yam-Kuen, Donald [2018] HKCA 425, and R v Rebecca King [2014] 1 Cr App R (S) 73, the prosecution here was unable to prove that the defendant’s misconduct had resulted in any significant loss to the government. However, the defendant was entrusted with public powers and discretions the valid and proper exercise of which would lead to the employment of valuable human and technological resources, resources that belonged to the public, for the benefit of the public, but the dishonest and unlawful exercise of which amounted to misappropriation of them. 13. The human and technological resources in question were (i) processing the requests by the defendant’s staff at the centre and by the staff members at the two laboratories, (ii) conducting the clinical tests by the laboratories as per the defendant’s requests, and (iii) compiling the laboratory reports, which contained information of diagnostic significance. The resources were valuable as they yielded diagnostic material. 14. The fact that the defendant’s family members could have obtained alternative public medical services is irrelevant, as it is merely another way of saying that the government has suffered no loss. Conclusion 15. The law on misconduct of public office does not insist on perfect human behaviour, as perfection is not the standard for criminal culpability (see R v Boulanger [2006] 2 RCS 49). However, the defendant here knew what she had done was dishonest and unlawful, and her conduct had fallen so far below the standard of behaviour expected of a person in her position that criminal condemnation and punishment are called for. In light of the evidence before the court, all the elements of offence have been made out. The court finds the defendant guilty as charge. 
+1. These cases concern the alleged commission of criminal contempt by the Respondents for what they had done on 26 November 2014 in the portions of Nathan Road between Argyle Street and Dundas Street in Mong Kok, Kowloon (“the Area”). It was alleged that the Respondents interfered with and/or impeded the due execution of the injunction order made by Au J on 10 November 2014 (amended 21 November 2014) in HCA 2104/2014 (“the HC 2104 Action”) by refusing to leave the area covered by the injunction order despite repeated warnings. The present cases are not about the right or wrong of the “Occupy Movement”. Factual Background 2. Most of the factual backgrounds of these proceedings are not in dispute. As a result of what was generally known as the “Occupy Movement”, a significant part of the public highway in Mong Kok, namely the Area, was occupied by a crowd of protestors since late September 2014. The Plaintiffs in the HC 2104 Action made an ex parte application for an injunction against those occupying in the Area. 3. Poon J (as he then was) granted the injunction order. On 24 and 27 October 2014, the hearings were heard before Au J, who continued the injunction order pending the delivery of the final decision. On 10 November 2014, Au J handed down the judgment continuing the injunction order. The injunction order was subsequently amended on 21 November 2014 (“the Amended Injunction Order”). The Court of Appeal also refused to grant leave to appeal against Au J’s order dated 10 November 2014. The Court notes that each step of the injunction proceedings was widely reported by the local media. 4. The Amended Injunction Order was duly served by advertising the same in one Chinese and one English newspapers on 24 November 2014. A Bailiff officer also served the order by placing it (together with the Notice of Injunction Order dated 24 November 2014) in clear plastic envelopes in eleven different prominent locations in the Area. The Court notes that both the service of the order and the intention of the Plaintiffs and the Bailiff to take action on 26 November 2014 to execute/carry out the Amended Injunction Order were widely reported by the local media. 5. The Court further notes that the Bailiff had executed another injunction order in similar terms granted by Au J in another case in an area at Argyle Street. The enforcement action was also widely reported by the local media. 6. On 26 November 2014: (1) At about 8:40 am, an Assistant Chief Bailiff (PW2) made an announcement through loudhailer to the crowd at the junction of Argyle Street and Nathan Road that the Bailiff officers were there to enforce the Amended Injunction Order. PW2 warned that any person who obstructed the execution might be guilty of contempt of court. Following that, the Plaintiffs’ legal representatives made an announcement repeating the contents of the Amended Injunction Order. PW2 then announced that the lawful agents of the Plaintiffs would execute the Amended Injunction Order and clear the obstacles at the Area within 30 minutes; (2) An Acting Assistant Chief Bailiff (PW4) and the Plaintiffs’ legal representatives repeated the announcements at about 8:45 am near the junction of Nelson Street and Nathan Road; (3) PW2 and the Plaintiffs’ legal representatives repeated the announcements at about 8:51 am at the junction of Shantung Street and Nathan Road; (4) PW4 and the Plaintiffs’ legal representatives repeated the announcements at about 9:05 am at the junction of Dundas Street and Nathan Road; and (5) Finally, at about 9:49 am, PW4 and PW2 announced at the junction of Argyle Street and Nathan Road near to the barricade that the lawful agents of the Plaintiffs would execute the Amended Injunction Order and clear the obstacles in the Area. 7. In the 1st-4th announcements, the crowd was repeatedly advised to obey the Amended Injunction Order and to leave the Area immediately. Following the making of the 5th announcement, at about 9:53 am, PW2 requested the Plaintiffs’ legal representatives and lawful agents to clear the barricades. While parts of the barricades were cleared at the junction of Argyle Street and Nathan Road, there was a commotion in the crowd in about 9:59 am. Another Assistant Chief Bailiff (PW5) warned the crowd that their actions had impeded the bailiffs’ execution of the Amended Injunction Order. Despite the warning, the crowd did not desist. The Chief Bailiff (PW6) then requested the assistance from the police at about 10:00 am. 8. At about 10:05 am, a Chief Inspector of Police (PW7) gave a warning that any person who obstructed or interfered with any bailiff or person assisting him in enforcing the order of the Court might be in breach of the court order and obstructing the administration of justice. It was also warned that such conduct might constitute a criminal contempt of court and an offence under the Summary Offences Ordinance. Another warning was given at about 10:15 am, where the crowd was requested to stop obstructing or interfering with the bailiffs in clearing or removing the obstructions on the road, failing which they might be arrested for suspected criminal contempt of court, resisting or obstructing a public officer, and other offences that they were suspected to have committed. Between 10:25 am to 12:00 p.m., public announcements were made advising the crowd, the onlookers and the press of their own safety as the police might raise the level of appropriate use of force. The crowd was advised to leave the Area via Tsim Sha Tsui direction in an orderly manner and not to obstruct police officers in the execution of their duties. 9. At about 11:07 am when the police checkline reached the junction of Shantung Street and Nathan Road, PW7 gave a final warning to the crowd gathered there. The crowd was also advised to leave the Area via Tsim Sha Tsui direction. Afterwards, the police started arresting people who refused to leave the Area. The Area was cleared at about 12:40 p.m. Legal Principles of Criminal Contempt 10. It was argued that the necessary mens rea for criminal contempt was the intention to interfere with the administration of justice. The Court rejects this argument. In reliance on the Court of Appeal decision in Secretary for Justice v. Ng Wai Bing[1](which is binding on the Court), the legal principles regarding criminal contempt are as follows: (a) Proof of a specific intent to interfere with the administration of justice would not be a prerequisite for liability for criminal contempt; (b) The applicant only needs to show the basic intent, that is that the respondents intended to perform the acts which constituted the actus reus of the contempt; (c) The act which is said to constitute criminal contempt of court is the conduct calculated to prejudice or interfere with the due administration of justice, and it is inherently likely to do so. 11. Applying the said principles to the present proceedings, the Applicant needed only to prove that each of the Respondents remained in the Area with the intention to remain therein. Further, their conduct in remaining was inherently likely to prejudice or interfere with the due administration of justice. Whether each of the Respondents did in fact obstruct or interfere with those who were responsible for clearing up the obstacles was not part of the legal requirement. If the Respondent did in fact obstruct or interfere with the clearing up of the obstacles it would more certainly amount to a criminal contempt. 12. It is further argued that mere presence at the scene only amounted to disobedience of the Amended Injunction Order, hence civil contempt. The Court disagrees. The Court takes the view that that might be the case prior to the 26th November 2014 but this argument ignores (1) the factual matrix leading to the granting of the Amended Injunction Order, (2) the wide reporting of each step of the injunction proceedings, (3) the extensive media coverage of the clearance on the previous day, (4) the wide reporting of the intended clearance on 26 November 2014, and (5) the repeated warnings given by the Bailiffs that the crowd should leave the Area immediately. 13. Whether each of the Respondents chose to remain, and did remain, in the Area would be a matter of fact and degree in every instance, whether or not the alleged contempt is made out. 14. The Court further holds that seriousness of the conduct is not an additional element of criminal contempt. Police Power of Arrest 15. As has been noted by the Court of Appeal in HCMP 3028/2014[2], steps would be taken by the Bailiff so that all parties concerned would be given the last opportunity to comply with the order voluntarily. Whether a police officer would like to repeat the steps before exercising his power to arrest was a matter for him to decide. Accordingly, so far as the police power of arrest is concerned, the relevance lies in the fact that by the time the police took the arrest action, the Respondents were still present at the Area. The circumstances of the Respondents’ arrest bore little relevance as to whether they committed criminal contempt. The Pleaded Case 16. During the trial and particularly in the final submissions of the Respondents, it was complained that the Applicant had relied on new grounds which caused unfairness to the Respondents. The alleged new grounds contained detailed description of the Respondents’ movements, which went beyond the original case pleaded by the Applicant. 17. The Court takes the view that the Applicant’s case was clearly pleaded. It was the presence of the Respondents and their acts and movements which had caused interference and/or obstruction to the clearance operation. Even if that was not clear enough in the pleadings, the Applicant’s opening put his position beyond dispute. The fresh particulars were revealed because of the additional footage used by the Respondents in cross-examining witnesses. The Court also held that it was entitled to look at the video footage before or after those used for cross-examination since matters had to be judged in their context. All video evidence had been provided to the Respondents; and the Respondents did not challenge the authenticity of the videos. No witness was required to be recalled. In these circumstances, the Court sees no unfairness for the Applicant to rely on the fresh particulars. 18. The Applicant called a number of witnesses in these proceedings. Very little challenge was made to the credibility of the witnesses. This was so because the most crucial evidence came from the video footage taken by different teams of police officers. In such circumstances, the fact of this case, in particular the conducts of each Respondent, could be ascertained with little difficulty. The Cases of Chu Pui Yan (HCMP 778/2015), Kwok Yeung Yuk (HCMP 780/2015), & Hung Cheuk Lun (HCMP 789/2015) 19. These Respondents were all seen to be present at various times when the announcements were made. Ms Chu was seen posing photographs with a group of young people outside HSBC just after the making of the 1st announcement, and was seen either sitting or standing near a sofa outside HSBC during the making of the 2nd and 3rd announcements. Mr Kwok and Mr Hung were seen to be present behind the barricades when the 5th announcement was made. The Court has no doubt that they must have been aware of the Bailiff’s warnings. Mr Hung was also seen jeering and booing by a police officer (PW41). 20. The Court notes that, as mentioned earlier, the matters from the application to the granting of the injunction order were widely reported in the local media. It was also reported that there would be a clearance operation in Argyle Street, a very short distance away from the Area. The announcements and warnings given by various parties were clear. In such circumstances, it was highly unlikely that any citizen in Hong Kong would misapprehend the situation. The Court takes the view that those who had decided to stand in the middle of the Nathan Road within the Area knew precisely what they were doing. 21. The Court takes the view that the presence of the Respondents at the Area made the job of the bailiffs and the police officers in clearing and removing obstacles along the Area substantially more difficult. As is common in mass protests, the presence of individual protestors lend support to other fellow protestors. They banded together to fight for their beliefs. Their presence and conducts were, not only inherently likely, but factually calculated, to delay if not to frustrate the execution of the Amended Injunction Order. The Court has no doubt that the Respondents’ actions amounted to a serious interference with the administration of justice. 22. It was submitted on behalf of Ms Chu, Mr Kwok, and Mr Hung that, by the time the police took the arrest action, they were no longer able to leave the Area. As mentioned earlier (§15 above), the Court rules that the circumstances of the Respondents’ arrest bore little relevance to the commission of the offence. Having considered all the evidence, the Court is satisfied that they are guilty of criminal contempt. The Cases of Kwan Siu Wang (HCMP 788/2015), Fung Kai Hei (HCMP 791/2015), Chiu Chi Sum (HCMP 783/2015) & Chan Po Ying (HCMP 784/2015) 23. Mr Kwan was seen staying close to the barricade before he was arrested. He and Mr Fung were seen either being present behind the barricade or emerging from a tent behind the barricade after the making of the 5th announcement. Mr Fung was standing within earshot when PW7 gave the first police warning. 24. Ms Chan was seen to be heading away from the barricades towards Tsim Sha Tsui direction at about 9:53 am The Court is of the view that she would have ample opportunities to leave the Area if she wanted to do so. Instead, she returned to the Area and was seen to be moving towards the Argyle direction when PW7 gave the final warning (§8 above). At about 11:11 am, Ms Chan was seen holding a loudhailer, and Mr Chiu was standing next to her and acting as a guide leading her to move backwards against the advance of the police checkline. 25. The Court has no doubt that their decision to stay in the Area had made the removal of the barricades substantially more difficult. Furthermore, Ms Chan and Mr Chiu were aware that they were required to leave the Area but chose not to leave. The Court’s comments as regards the presence of Ms Chu, Mr Kwok and Mr Hung at the Area (see §§20 & 21 above) are also applicable to these Respondents. Their presence together with the presence of other protestors put extra burden on the people responsible for clearing out the obstacles. Accordingly, their conducts were not only inherently likely to but did factually cause prejudice to or interference with the due administration of justice. Having considered all the evidence, the Court is satisfied that they are guilty of criminal contempt. The Case of Mak Ying Sheung (HCMP 796/2015) 26. Ms Mak is the only respondent who testified in these proceedings. It was her case that she joined the Hong Kong Independent Media as an intern journalist at the beginning of November 2014. She was present at the Area on 26 November 2014 intending to interview the protestors and to take some photographs. It was admitted that she overheard the warning given by the police, but Ms Mak claimed that she did not hear the content due to the noisy background. When she heard that the police requested the crowd not to obstruct the Bailiff in removing the obstacles, she wanted to leave. However, the police did not allow her to do so because she could not produce a journalist pass. She then returned to the front of the barricade. 27. At issue was whether Ms Mak was wrongly arrested as she was doing no more than her journalistic work. 28. Having heard the evidence and viewed all the relevant video footage, the Court does not find Ms Mak a credible witness. While the Court accepts that Ms Mak joined the Hong Kong Independent Media as an intern journalist, it does not find that she was given instructions by her employer to return to the Area on 26 November 2014. On the contrary, there was evidence showing that she and her employer would meet in the following Tuesday to discuss her work. Ms Mak presented no photographs taken by her, nor was there evidence suggesting that any journalistic works had been performed on the occasion. Video footage showed that Ms Mak had been looking at her phone, instead of interviewing protestors. There was also footage showing Ms Mak shouting and raising her arms along with other protestors. In such circumstances, having considered all the evidence, the Court comes to the conclusion that Ms Mak was not doing any journalistic work on that occasion, instead she joined in the protest along with other protesters. It was held that her presence created extra burden on the people who were responsible for clearing the obstacles. Her conducts were not only inherently likely to but did factually cause prejudice to or interference with the due administration of justice. Having considered all the evidence, the Court finds that she is guilty of criminal contempt. The Case of Wong Ho Ming (HCMP 798/2015) 29. Video footage showed that, when the Bailiffs and the Plaintiffs’ solicitors made announcements at different road junctions, Mr Wong had repeatedly asked questions on (a) whether people present in the Area amounted to obstacles, (b) whether the Plaintiffs’ agents had been properly authorized, (c) how to ensure the content of the Amended Injunction Order being communicated to the people present at the Area, and (d) demanding the Bailiff to use a bigger loudhailer. His challenges to the Bailiff and the Plaintiffs’ solicitors were broadcast to the crowd. The Court finds that the way and manners adopted by Mr Wong were intended to a certain extent, ridicule the Plaintiffs’ solicitors and to incite the crowd to continue their defiance. 30. As the Court points out earlier, matters leading to the execution of the Amended Injunction Order were widely reported in the media. If Mr Wong had any questions or doubt regarding the scope or validity of the terms of the Amended Injunction Order, he could have sought further directions or clarification from the Court. 31. After the making of the 5th announcement, Mr Wong continued his challenge by demanding for the identity of the Plaintiffs’ agents and written authorisation. His presence and challenge created enormous burden for the Bailiffs and the Plaintiffs’ agents. At the time of issuing the first warning by PW7 at about 10:03 am (§7 above), Mr Wong decided to remain in the Area and stood in front of the barricade. When the police moved in to effect arrest, he signalled that he had no weapon on his body. The Court finds that his presence and challenge to the Bailiffs and the Plaintiffs’ agents were not only inherently likely to but did factually cause prejudice to or interference with the clearance operation hence the due administration of justice. Having considered all the evidence, the Court is satisfied that he is guilty of criminal contempt. [1][2012] 1 HKLRD 245 [2] Judgment dated 21 November 2014 
+1. At the material time, D1 was the vice-chairperson of the “Hong Kong Alliance in Support of Patriotic Democratic Movements of China” [香港市民支援愛國民主運動聯合會] (“HKA”) while D2 and D5 were its committee members. 2. The Commissioner of Police (“the Commissioner”), having reasonable grounds to believe that HKA was a “foreign agent” under Schedule 5 of the Implementation Rules and Article 43 of the National Security Law (“Schedule 5”), issued a Notice under Schedule 5 s.3(1) requiring HKA to provide within 14 days some specified information with supporting documents reasonably believed to be necessarily required for the prevention and investigation of an offence endangering national security. 3. By virtue of Schedule 5 s.3(3)(a), the office-bearer of the organization has the obligation to provide such information. The Notice was served on D1, D2 and D5. 4. Before the deadline, HKA held a press conference criticising such requirement, and subsequently sent an open letter to the Commissioner with D1, D2, D5 and others as cosignatories raising questions on some legal issues, and clearly stating that they would not provide any information. They had never provided any information, not even up to the expiration date. 5. At the initial stage, the prosecution made a claim for Public Interest Immunity to redact some information from the defence for case preparation on the grounds that a full disclosure would jeopardize the ongoing investigation on national security cases. The Court agrees that it was a large-scale ongoing investigation which involved subjects other than HKA. Since HKA was only one of the targets, a redaction of all the ongoing investigation information unrelated to HKA and the Defendants was necessary, and on the other hand, when partial redaction was required, the principle of a fair trial must be upheld. 6. Upon due consideration with paramount concern for the defendants’ rights to a fair trial, the Court ordered partial redaction, and yet, that was not final but subject to review at any time when necessary. 7. And indeed, there had been some reviews throughout the trial upon which more information was disclosed as ordered by the Court. The Court is satisfied that in general, the Defendants’ rights to a fair trial was not undermined at all. 8. At the early stage of the trial, the Court made a preliminary ruling on two material issues: (1) It was not necessary to prove that the subject organization, as a matter of fact, was a foreign agent; (2) The defence was entitled to challenge the legality of the Notice at the trial. The trial proper then proceeded based on the above ruling. 9. The prosecution case mainly relied on the police superintendent who worked on the investigation information with his own analysis of HKA’s background, nature and the nexus of interactions as well as the monetary flows to and from other local and non-local organizations and people, upon which he made recommendations to the Commissioner on measures to be taken under Schedule 5. The Commissioner endorsed the recommendations in full and with the approval given by the Secretary for Security, the Notice was finally issued and served on the Defendants. The Court accepted the superintendent’s evidence. 10. The defence contended that HKA was not a foreign agent and challenged the legality of the Notice on numerous aspects and also questioned the analysis concerned. They asserted that since the legality of the Notice was faulty, they had no obligations to comply with the purported notice. 11. There was little for the prosecution to dispute as far as the facts raised by the defence was concerned, for the prosecution did not have any participation and hence not in any position to dispute them, on that basis the Court accepted the defence factual evidence be the factual basis for this trial; but rejected the speculative observations for lack of factual foundation. The Court is satisfied the information required had struck a balance between the necessity for the prevention and investigation of an offence endangering national security and protection of rights. The Court finds that the material time relevant to the issue of legality of the Notice was the time when the Notice was served. Any additional information subsequent to that were information in hindsight and not helpful at all. 12. Upon due consideration, having made the analysis and taken a balance of all factors of this case, the Court finds that: (1) The Notice was legal at the time of service and there was no basis for the Court to exercise any discretion to reject it; (2) The Defendants had the obligation to answer the Notice; (3) They had no intention to provide any information at all; (4) They had never provided any information; (5) The statutory defence was not applicable to this case. 13. The Court therefore convict all Defendants accordingly. 
+1. The New Territories Small House Policy provides that a male New Territories Indigenous Inhabitant (“NTII”) may apply for permission, once in his lifetime, to erect a small house on a suitable site within his own village. Under the Policy, three kinds of grant are available for application: (1) free building licenses, (2) private treaty grants, and (3) exchanges. The Appellant sought judicial review of the Policy on the ground that it is unconstitutional for being discriminatory on the basis of birth, sex and social origin. All parties agreed that the Policy is, on its face, discriminatory. The central issue is whether it is protected by Article 40 of the Basic Law (“BL40”), which provides that: “The lawful traditional rights and interests of the indigenous inhabitants of the ‘New Territories’ shall be protected by the Hong Kong Special Administrative Region”. 2. The Court of First Instance (“CFI”) held that the rights or interests enjoyed by male NTIIs under the Policy (“Ding rights”) were “lawful” ones within the meaning of BL40 as “lawful” was merely descriptive of the Ding rights enjoyed by the male NTIIs in April 1990 when the Basic Law was promulgated. However, the Court held that private treaty grants and exchanges are not “traditional” rights and interests under BL40 because they are not traceable to the rights and interests enjoyed by NTIIs prior to the New Territories lease in 1898. Only free building licenses were held to be “traditional” rights for the purposes of BL40 because they are so traceable. The Policy was held to be unconstitutional to the extent of private treaty grants and exchanges. 3. On appeal, the Court of Appeal (“CA”) held that the Policy is constitutional in its entirety. A right or interest is “traditional” under BL40 if it was recognised as such by the Basic Law drafters at the time of its promulgation in April 1990. As at that date, all Ding rights were so recognised. Alternatively, even if they had to be “traceable” to 1898, they were so traceable as they originated from, and retained the essence of, the NTIIs’ pre-1898 custom of building a house for their own occupation on village land. The CA agreed with the CFI on the meaning of “lawful”. Ding rights are accordingly protected under BL40. In any event, the CA would have refused to grant relief on the grounds of standing and delay. 4. Before this Court, the Appellant argued that “lawful” means the scope of BL40 is qualified by, and ought to be interpreted in line with, the anti-discrimination provisions in Articles 25 and 39 of the Basic Law (“BL25” and “BL39”) and Article 22 of the Bill of Rights (“BOR22”). The Appellant also argued that “traditional” means the Ding rights have to be traceable to 1898 and they are not. The Respondents’ and the Interested Party’s case was that BL40 limits and qualifies the application of the anti-discrimination provisions, not the other way round. They also argued that “traditional” means traditional by 1990, not 1898. The proper construction of BL40 5. The Court rejected the Appellant’s arguments. The starting point is to identify the nature of the “right” or “interest” which an applicant under the Policy may be said to have. The Policy is implicitly acknowledged in several ordinances and the Basic Law itself, but does not have a statutory basis. The Policy is applied as a matter of administrative discretion. Accordingly, the relevant right is founded entirely on public law. It is a right to have one’s application dealt with in accordance with the criteria laid down in the government’s statements of current policy, subject to the lawfully exercised discretion of the Lands Department. It falls within “rights and interests” in BL40. 6. The word “lawful” in BL40 refers to the lawfulness of the way that the discretion to make a grant under the Policy is exercised as a matter of public law. The relevant right or interest of an applicant under the Policy is lawful if such discretion is lawfully exercised. “Lawful” in BL40 is not intended to refer to the absence of discrimination forbidden by BL25, BL39 and BOR22, whose application in the special context of indigenous rights is excluded by BL40. 7. Furthermore, this Court held that the CA was correct to find that the word “traditional” in BL40 is to be determined by reference to the state of affairs in April 1990, and does not require that a protected right or interest be traceable to the period before 1898. BL40 does not say this, nor is such an approach necessary to give effect to BL40. The principle of traceability is not implicit in the concept of tradition as a matter of language. More importantly, such an interpretation is not consistent with the purpose of BL40. In line with the principle of continuity, the fact that only male descendants of pre-1898 villagers were eligible under the Policy was part of the description of the system which the HKSAR inherited and which BL40 intends to protect. Standing and delay 8. The Court disagreed with the CA on the issues of standing and delay. On delay, this Court observed that the rule that judicial reviews must be brought promptly has never been absolute. When, as in this case, the proceedings concern some general issue of legal or constitutional principle, prejudice to individuals or disruption to good administration are less likely and the public importance of having the issue resolved is greater. If a policy is unconstitutional or otherwise unlawful, it is in the public interest that the court should say so. Thus, the CFI Judge’s decision to grant relief (on the view that he took of the merits) was within his discretion. 9. On standing, when an applicant does not have a direct interest in the subject matter of the case, but seeks to raise a general legal or constitutional issue, the crucial question is whether the purpose of judicial review and the rule of law will be served by allowing him to proceed. The CFI was right to hold that the Appellant has standing because the only people who would have a greater interest in the constitutionality of the Policy are beneficiaries of the Policy who clearly have no interest in challenging it. Disposition 10. Accordingly, the Court unanimously dismissed the appeal. 
+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. Following protests around the Tamar Central Government Offices on 26 September 2014, the 1st and 3rd Appellants were found guilty after trial by the magistrate of taking part in an unlawful assembly contrary to s.18 of the Public Order Ordinance, Cap 245 (“POO”). The 2nd Appellant was found guilty of inciting others to take part in an unlawful assembly. On 15 August 2016, the 1st and 2nd Appellants were sentenced to 80 hours and 120 hours of community service respectively whereas the 3rd Appellant was sentenced to 3 weeks’ imprisonment suspended for one year. 2. On 13 October 2016, the Secretary for Justice applied to the Court of Appeal for a review of those sentences under s.81A of the Criminal Procedure Ordinance, Cap 221 (“CPO”). Finding that the magistrate erred in principle and that her sentences were manifestly inadequate, the Court of Appeal increased the sentences and, making allowance for the fact that the 1st and 2nd Appellants had both completed their community service orders, imposed on the 1st, 2nd and 3rd Appellants imprisonment sentences of 6 months, 8 months and 7 months respectively. 3. On 7 November 2017, the Court of Final Appeal granted the Appellants’ application for leave to appeal on four separate issues. Issue 1: The Court of Appeal’s power to review facts on a review of sentence 4. The first issue concerns the extent to which, on an application for review of sentence under s.81A of the CPO, the Court of Appeal may reverse, modify, substitute or supplement the factual basis on which the original sentence was based. 5. As a matter of principle, in an application for review of sentence, the Secretary for Justice does not have an analogous right to that of a convicted person appealing against sentence, and a review of sentence differs procedurally from an appeal against sentence. As the wording of s.81B of the CPO suggests, the Court of Appeal may only interfere with the sentence under review if it thinks that the sentence was (i) not authorised by law, (ii) wrong in principle, (iii) manifestly excessive, or (iv) manifestly inadequate. Unlike an appeal, a review of sentence is therefore strictly limited to an examination of whether any of those four grounds are made out. [paras 47-49, 53] 6. In determining whether the sentencing court has committed any of the errors above which permit interference with sentence, it is plainly appropriate for the Court of Appeal to look at any relevant evidence available to the sentencing court below. If the sentencing court below has made an error as to the facts on which it proceeds to sentence, it is only right that the Court of Appeal can correct these in the review. [para 59] 7. However, save where it concludes that the sentence is manifestly inadequate, the Court of Appeal may not in the review ascribe a different weight to a factor properly taken into account by the sentencing judge in arriving at a sentence that is otherwise within the range of sentences appropriate for the offence. [para 62] 8. In the present appeals, the Court was unable to agree with the Court of Appeal’s view that the magistrate erred in principle by failing to take into account relevant matters. The magistrate was plainly aware of the factor of deterrence, the large scale nature of the assembly, the risk of violent clashes, the Appellants’ knowledge of the likelihood of clashes between the participants and the security guards and the police and the inevitability that at least some security guards would be injured, and the fact that there was a prior lawful assembly and that the protesters did not have an absolute right to enter the forecourt. The weight to be accorded to the Appellants’ personal circumstances and motives, as well as their expression of remorse, was strictly a matter within the magistrate’s discretion unless the sentences the magistrate imposed were manifestly inadequate or out of line with the range of sentences imposed in practice. [paras 98-103] 9. In this regard, the Court concluded that the magistrate’s sentences were not manifestly inadequate. At the time of the sentences, there was no appellate court guidance requiring an immediate custodial sentence for a case of this nature, and a community service order was a sentence frequently passed in respect of unlawful assemblies. [para 105] 10. As regards the Appellants’ contention that the Court of Appeal had taken into account factors which constituted new findings of fact, all of the factors highlighted by the Court of Appeal save two were open to it to make on the evidence before the magistrate. [paras 111-114] Issue 2: Civil disobedience and the exercise of constitutional rights as motive 11. The second issue relates to the extent to which the magistrate should have taken into account the motives of the Appellants in committing the offences, particularly where it was asserted that the offences were committed as acts of civil disobedience or in the exercise of a constitutional right. 12. While the fact that an offence arises out of an occasion when constitutional rights to assemble and protest are being exercised is relevant to the background and context of the offending, the fact of a conviction of the offence will necessarily mean that the offender has crossed the line separating the lawful exercise of constitutional rights from unlawful activity subject to sanctions and constraints, and so there is little merit in a plea for leniency on the ground that the offender was merely exercising his constitutional rights. [paras 67-69] 13. The concept of civil disobedience is recognisable in Hong Kong, and can broadly consist of (i) breaches of a particular law which is believed to be unjust by the offender, or (ii) law-breaking done in order to protest against perceived injustice or in order to effect change in either the law or society. The offender’s conscientious objections and genuine beliefs actuating either type of behaviour may be taken into consideration as the motive for the offending. The weight attached to the motive must however vary depending on the circumstances, and the court will not evaluate the worthiness of any causes espoused. Civil disobedience as generally understood also requires the protester to expect and accept punishment, and the action carried out to be peaceful and non-violent. [paras 70-72, 74-75] 14. In the present appeals, the acts of civil disobedience relied upon were not directed towards s.18 of the POO as an unjust law, but were committed in the course of protesting against the Government’s proposals for constitutional reform. A plea for leniency at the stage of sentencing on the ground of civil disobedience should therefore carry little weight as the acts infringed the criminal law, involved violence and were thus not peaceful and non-violent. [paras 73-74] Issue 3: The Court of Appeal’s guidance for future cases 15. The third issue relates to whether the Court of Appeal was laying down sentencing guidelines for future cases in its judgment. 16. The Court recognised it to be settled law reflecting the protection against retroactive criminal penalties that the sentence for an offence should be in accordance with the sentencing practice prevailing at the time of the commission of the offence. However, the public order offences of which the Appellants were guilty were offences where there had been no established guidelines or tariffs of sentence. [paras 77-78, 81] 17. The Court of Appeal’s judgment did not lay down any fixed starting point of sentence for the offences but instead simply emphasised the need for deterrence and punishment in large scale unlawful assembly cases involving violence given the circumstances now prevailing in Hong Kong. It was appropriate for the Court of Appeal to do so and it was consistent with its responsibility to provide guidance in sentencing matters for the future. In this regard, the sentencing principles the Court of Appeal laid down and the list of sentencing factors it considered to be relevant for unlawful assembly involving violence were to be endorsed. [paras 83, 119-123] 18. It was right for the Court of Appeal to send the message that unlawful assemblies involving violence, even the relatively low degree of violence that occurred in the present appeals, will not be condoned and may justifiably attract sentences of immediate imprisonment in the future. Greater culpability is also to be ascribed to those who have participated in violent acts, incited others to commit the offence, or have encouraged the unlawful assembly for example by virtue of their status or leadership of others joining the assembly. [paras 124-125] 19. That being said, the Court considered it inappropriate to apply the Court of Appeal’s guidance to the Appellants in these appeals in order to avoid retrospectively imposing significantly more severe sentences on them based on the new sentencing guideline. [para 126] Issue 4: S.109A of the CPO and the relevance of youth in sentencing 20. The final issue, relating solely to the 1st Appellant’s appeal, is the extent to which the Court of Appeal should have taken into account s.109A of the CPO. 21. On its plain wording, s.109A of the CPO obliges a sentencing court when considering the appropriate sentence to be imposed on an offender aged between 16 and 21, to obtain and consider information about the circumstances of the young offender, the offence and his suitability for particular types of punishment, as well as information which is relevant to the young offender’s character and physical and mental condition. Nevertheless, the requirement to obtain information is not absolute. [paras 87-89] 22. The Court held that the magistrate was plainly entitled to take s.109A of the CPO into account when sentencing. The Court of Appeal misunderstood the submissions of the 1st Appellant’s counsel to mean that it was not appropriate or necessary for the Court of Appeal to consider alternatives to a sentence of imprisonment. In any event, it would have been the Court of Appeal’s duty under s.109A of the CPO as the sentencing court, if it had been entitled to review the sentences of the magistrate, to consider all non-imprisonment sentencing options. [para 131] 23. While there may be circumstances where it will be clear without the need to obtain further information that the only appropriate sentence is imprisonment, in the circumstances of the present offence of taking part in an unlawful assembly this was certainly not one of those cases. The Court of Appeal therefore erred in dispensing with the need to consider other sentencing options and in not following the requirements of s.109A. [paras 132-133] Disposition 24. The Court unanimously allowed all three appeals, quashed the sentences of imprisonment imposed by the Court of Appeal and reinstated those imposed by the magistrate, emphasising, however, that future offenders involved in large scale unlawful assemblies involving violence will be subject to the new guidelines rightly laid down by the Court of Appeal. [para 135] 
+Background 1. Mr Lo Siu Wa (“Mr Lo”) was a carpenter employed by Nuovo Design Limited (“Nuovo”), which engaged in the business of interior design. Mr Lo was injured in the course of his employment. He obtained judgment against Nuovo for employees’ compensation and damages for personal injuries, but Nuovo failed to pay any of these sums and was wound up on the grounds of insolvency. 2. As required by the Employees’ Compensation Ordinance, Cap. 282 (“the Ordinance”), Nuovo had taken out an insurance policy (“the Policy”) with AXA China Region Insurance Company (Bermuda) Limited (“AXA”) in respect of its liability to pay compensation to employees. Under the Ordinance, provided that a policy is in force “in relation to” an employee at the time of his injury, the insurer is liable to pay any compensation due to the employee by his employer. The insurer is liable even if, as a matter of contract between the insurer and the employer, the insurer would have been entitled to repudiate its liability for misrepresentation or breach of contract on the employer’s part. If the insurer would have been entitled to so repudiate, but has paid compensation to an injured employee, the insurer has a right of recourse against the employer. (See sections 40(1), 43(1) and 43(4) of the Ordinance.) 3. Mr Lo made a claim against AXA pursuant to the Ordinance. AXA refused to pay on the ground that the Policy did not cover him (i.e. was not “in relation to” him). Mr Lo therefore turned to the Employees Compensation Assistance Fund (“the Fund”), a statutory fund for employees with unpaid claims for compensation. The Employees Compensation Assistance Fund Board (“the Board”), which administers the Fund, took the view that the Policy covered Mr Lo and therefore AXA was liable. Mr Lo therefore sued both AXA and the Board. When the case came before the Court of First Instance, Mr Lo had been paid, and the remaining issue was which of the two, AXA or the Board, should be liable. This boils down to whether the Policy covered Mr Lo. 4. The Court of First Instance held that the Policy did not cover Mr Lo and accordingly the Board was liable. The decision was upheld by a majority in the Court of Appeal. The Board appealed to this Court. 5. The Policy contained a body and a schedule. The “Scope of Cover” clause in the body stated: “If any employee in the insured’s immediate employ shall sustain bodily injury or death by accident … arising out of and in the course of his employment by the insured in the business”. The last word “business” was described in the schedule as “interior design” and “office (interior design)”. The schedule also contained, under the heading “Employees’ Compensation”, a list (“the List”) of several posts in Nuovo. Those posts did not include construction workers such as carpenters. The Policy imposed two further obligations on Nuovo: (i) to provide AXA with the full particulars of its employees so that appropriate adjustment of the premium could be made, and (ii) to notify AXA of any material change in the number of its employees. 6. The evidence showed that, while Nuovo’s principal business was the production of interior designs, it engaged in a variety of construction works to execute its designs. The evidence also showed that Nuovo did not regard its construction workers as its employees. Accordingly, Nuovo did not notify AXA that it had employed construction workers, and no construction workers were mentioned in the List. Decision of this Court 7. The Policy did cover Mr Lo. The word “business” in the Policy included carpentry works which Mr Lo undertook. Courts should not be too finicky or pedantic about the interpretation of a brief description of an employer’s business. Otherwise, an employer might be found to have committed the criminal offence of failing to insure (see section 40(2) of the Ordinance) because it did not provide a sufficiently detailed description of its business. Construction work such as carpentry, which executed the designs produced by Nuovo, was ancillary to Nuovo’s principal business. Moreover, despite the use of the word “office”, the Policy (especially the references to overseas activities) showed that Nuovo’s activities were not confined to an office. 8. The Policy covered not just those employees stated in the List. The reason why AXA needed to know the full particulars of all employees of Nuovo (whether mentioned in the List or not), and to be informed of material change in the number of Nuovo’s employees, was that all these employees were covered by the Policy. 9. Nuovo had made a mistake in not realising that its construction workers such as Mr Lo were employees. Based on that mistaken view, Nuovo failed to provide correct information about its employees to AXA, and hence misrepresented them to AXA and was in breach of its obligations under the Policy. If Nuovo had not gone insolvent, AXA might have been entitled to repudiate its liability under the Policy, and seek recourse against Nuovo. But AXA remains liable to Mr Lo under the Ordinance. 10. For these reasons, this Court held that it was AXA rather than the Board which was liable to Mr Lo. Accordingly, this Court allowed the appeal. 
+1. The Appellants, who were civil servants, were charged with conspiracy to defraud and using documents, namely applications for Private Tenancy Allowance (“PTA”), with intent to deceive their principal, namely the Hong Kong Government. 2. Under the Civil Service Regulations, civil servants were entitled to apply for PTA for a refund of a portion of rent they paid for premises they leased privately, provided that they did not own or have a financial interest in the property leased. 3. In 1985, the 1st Appellant (“Mak”) (and his wife) became the registered owners of Flat 21E and the 2nd Appellant (“Tsang”) (and his wife), the registered owners of Flat 22E, both in Block 9, City Garden, North Point (“Flat 21E” and “Flat 22E”). Mak leased Flat 22E from Tsang, and Tsang leased Flat 21E from Mak. Both Appellants applied for and received PTA. 4. Tsang in 1990 moved into Government Quarters. By then both Appellants had ceased to receive PTA. In 1990, Tsang sold Flat 21E (under a power of attorney granted by Mak), with Tsang keeping the proceeds. In 1992, Mak sold Flat 22E (under a power of attorney granted by Tsang), with Mak keeping the proceeds. 5. The Prosecution case was that the Appellants had conspired to defraud the Government by obtaining PTA that they knew they were not entitled to. The Prosecution alleged that Mak was actually the beneficial owner of Flat 22E and Tsang actually the beneficial owner of Flat 21E and that they had agreed to pretend they were renting each other’s flat, concealing their financial interests in order to obtain PTA. This arrangement was referred to as “cross-holding”. 6. The Defence case was that neither Appellant had any financial interest in the flat each was leasing and it was common ground that the leasing of one another’s property, a practice known as “cross-leasing”, was not unlawful. In 1990, Tsang wished to sell Flat 22E but since there was an existing tenant there he had agreed with Mak to swap flats, so that he could sell with vacant possession. This happened only after both Appellants had ceased receiving PTA. 7. The Appellants were convicted in the District Court. HH Judge Johnny Chan found that it was Mak who provided the purchase money for Flat 22E, and Tsang the purchase money for Flat 21E, giving rise to a beneficial interest in each Appellant in the flat leased. The Judge therefore found that they dishonestly conspired to obtain PTA. 8. The Court of Appeal held that the Judge’s finding that each Appellant had provided the purchase money for the flat that they leased was erroneous, as the evidence actually showed that contrarily, each Appellant had provided the purchase money for the flat that they were the registered owner of. Nonetheless, the Court of Appeal upheld the conviction holding that, despite the error, no miscarriage of justice had occurred. The Court of Appeal held that the conviction was justified given the Judge’s finding that there had been an agreement to hold the flats on trust for each other. 9. There was no direct evidence that the Appellants agreed to a cross-holding arrangement, making themselves trustees of the flats they legally owned as opposed to a permissible cross-leasing arrangement. For the conviction to be upheld, the inference that they had indeed entered into such an arrangement had to be irresistible, that is, the only reasonable inference to be drawn on the available evidence. 10. The Court reasoned that since claiming PTA through cross-leasing was permissible, it was implausible that the Appellants would enter into a cross-holding arrangement to obtain PTA unlawfully. 11. The Court held that various matters relied on by the prosecution in support of inferring that there had been a cross-holding agreement were at least as consistent with the existence of a permissible cross-leasing arrangement, making the inference urged by the prosecution far from irresistible. 12. The prosecution had relied heavily on the cross retention of the sale proceeds as evidence of cross-holding. However, the Court found there was contemporaneous evidence in support of the Appellants’ case that each Appellant had agreed to grant each other the right to sell their respective flats in 1990, providing a plausible and innocent explanation for the retention of the sale proceeds. 13. For these reasons, the Court held that the inference of a cross-holding agreement giving the Appellants a financial interest in the flats they leased was implausible and unsustainable. The convictions were quashed. 
+Background 1. A total of 28 Uber drivers were each charged with the offence of driving a motor vehicle for the carriage of passengers for hire or reward, contrary to sections 52(3) and 52(10) of the Road Traffic Ordinance, Cap. 374. The charges arose from the following circumstances. 2. In early- to mid-2017, the police conducted 22 undercover operations against private car hire via Uber; in the same period, three civilians made complaints to the police of six other incidents of private car hire, also via Uber. One civilian suffered injuries as a result of an accident in the ride, while the other two were dissatisfied with the transport services. The undercover officers and the civilians are referred to as “passengers” below. 3. Some of the passengers installed Uber’s Riders App on their mobile phones shortly before the incidents, whereas others had had it installed well beforehand. On the days of the incidents, using the App, they made requests for transport services, from various locations to various destinations. In response, on the screens of the passengers’ mobile phones were shown a map describing the routes, several choices of cars, together with corresponding fares. The passengers chose the cars for the rides, and were then provided the defendants’ nicknames and photographs, plus details of their cars. Next, the defendants turned up at the stipulated pick-up points and the passengers got in their cars for the journeys. Most of the journeys were completed; several were not, due to police actions before the cars arrived at the destinations or because there had been a car accident. Whether or not the journeys were completed, the fares were charged and paid by way of credit cards transfers. Issues and the court’s rulings on them 4. In the previous road traffic control regime under the Road Traffic Ordinance, Cap. 220, for the purposes of a prosecution of private car hire, it was necessary for the prosecution to prove an unenforceable agreement of carriage between the driver and the passenger. This court holds that under the current Road Traffic Ordinance, Cap. 374, proof of such an illegal agreement is no longer required, and it is unnecessary for the court to take into account contextual considerations such as social and domestic occasions in such prosecutions. However, the court is bound by previous authorities to construe the expression “hire or reward” disjunctively. 5. There has been an enlargement of the scope of prohibition against private car hire under the current legislation. The prohibition applies to all motor vehicles, registered or not, except the four classes of vehicles referred to in section 52(3) itself. Reward includes salary. In consequence, section 52(3) applies to all employed drivers as well as those running a private car hire. The court finds, on the constitutional principle of “overbreadth”, that the section infringes the fundamental rights guaranteed by art. 28 of the Basic Law, and it contravenes art. 11 as well. 6. The court has no jurisdiction to perform the rationality and proportionality tests to justify (a) a rights-infringing provision due to its being overbroad, and (b) a contravention of the Basic Law. The court has, however, the jurisdiction, and is under a positive legal duty, to adopt a remedial interpretation of section 52(3), to ensure that it is Basic Law-compliant. By adopting a restrictive interpretation of the section, the court rules that the prosecution must prove that (i) the defendants had undertaken the journeys for the sole reason or purpose that a reward would be paid or received, (ii) the passengers had accepted the carriage for no other reasons but a payment of the reward quid pro quo the journeys, in that the reward must be calculated per ride and as per the distance travelled. 7. The court finds that the section 52(3) offence is not a strict liability offence because it does not have the nature and characteristics of a regulatory offence, and because making it a strict liability offence will have no effect on enforcement. Conclusion 8. There is no evidence before the court suggesting that the defendants undertook the journeys for reasons other than that the journeys were intended to be paid, of which the defendants were in full knowledge and in which the defendants had full intention. As the rewards were paid shortly after the journeys, the offences were complete on the days charged. The court finds each of the 28 defendants guilty of the respective charge they each face. 
+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. This appeal concerns the liability of the Appellants in relation to a family trust (“the Trust”) set up under Jersey law in 2005. 2. The 1st Appellant (“DBS Trustee”) was the trustee and held the only share of the 2nd Respondent (“Wise Lords”) as the sole trust asset. The 2nd Appellant (“DHJ Management”) was the sole director of Wise Lords. Madam Ji, a settlor and a beneficiary of the trust, was the investment adviser of Wise Lords and directed its investments. 3. In July and August 2008, during the unfolding global financial crisis, DBS Trustee and DHJ Management gave after-the-event approvals for three transactions entered into by Wise Lords, namely (i) an increase in Wise Lords’ credit facilities to USD100m; (ii) purchases of USD83m worth of AUD; and (iii) purchases of three decumulators (“Transactions”). As a result of AUD falling sharply against USD, Wise Lords suffered significant losses. 4. The courts below found DBS Trustee liable for grossly negligent breach of trust as trustee and DHJ Management liable for grossly negligent breach of fiduciary duty as director in approving the Transactions. As the Appellants’ breaches were held to have directly caused loss of the Trust assets, they were therefore ordered to pay equitable compensation to the Respondents. 5. The issues on appeal related to the bases on which the courts below found liability against the Appellants and ordered them to pay equitable compensation. The Appellants’ liability 6. The basis on which the courts below found the Appellants liable for gross negligence was that they owed a “high level supervisory duty” to the Respondents. 7. Jersey trust law applied to the Trust subject to the terms of the trust deed (“Trust Deed”). The Trust Deed contained what are commonly known as “anti-Bartlett” provisions, which relieved the trustee from any duty to interfere with or supervise the business of the Trust’s underlying company (i.e. Wise Lords), unless the trustee has actual knowledge of dishonesty in the conduct of the business. 8. The issue was whether, despite the “anti-Bartlett” provisions, the Appellants owed the “high level supervisory duty” as found by the trial judge and Court of Appeal, and whether they had breached such duty. 9. The Court held that there was no such duty and no such breach. 10. The existence of such a duty was inconsistent with the “anti-Bartlett” provisions. Such a duty would require DBS Trustee to query and disapprove of the Transactions, which would be interfering with Wise Lords’ business contrary to the terms of the Trust Deed. There was no actual knowledge of dishonesty that required DBS Trustee to interfere. 11. In any event, the Appellants’ approvals of the Transactions did not constitute gross negligence. While the Transactions were speculative and risky, the Trust Deed specifically allowed the taking of such risks. As such, the Appellants would still be protected by liability exemption clauses for any acts and omissions short of gross negligence. The proper approach to equitable compensation 12. Even if the Appellants were liable, the present case was not one where the trustee misapplied or lost the trust assets and was obliged to restore them to the trust. Rather, the present case would be categorised as involving a lack of appropriate skill or care causing a decrease in value of trust assets, for which any equitable compensation payable to the Respondents would be reparative in nature. In such a case, the courts would apply common law principles of foreseeability and remoteness to examine whether and to what extent the trustee’s breach had caused the loss in the trust assets. Discretion to deliver judgment despite post-hearing settlement 13. After the hearing but before judgment was delivered, the parties notified the Court that they had agreed to settle their dispute. The Court held that this did not necessarily prevent the publication of the judgment. The Court has discretion to deliver judgment even after a post-hearing settlement. The Court exercised its discretion to do so in this case because there are important issues of law involved and the Court’s judgment differed from those of the lower courts. DISPOSITION: 14. Accordingly, if the case had not been settled, the Court would have unanimously allowed the appeal. 
+1. The appellant strongly opposed a project for extending the South-East New Territories landfill. She and several others staged demonstrations in the public gallery at two meetings of the Legislative Council’s Public Works Subcommittee when the project was discussed. 2. On the first occasion, she removed her jacket so that the characters 保衛將軍澳 (“Defend Tseung Kwan O”) were displayed on the T-shirt that she was wearing and also handed to another protester a paper poster depicting a Nazi Swastika with the characters 毒氣集中營 – 堆填區 (“Poison Gas Concentration Camp – Landfill”) which he displayed in the public gallery above the conference room. This led to a commotion as security guards sought to seize the sign, leading to one guard sustaining bruising on her left wrist. The incident caused the Subcommittee’s meeting to be prematurely adjourned. 3. On the second occasion, the appellant and several others in the public gallery chanted slogans and were warned by the Subcommittee’s chairman that they would be ejected if they did not stop. As they ignored the warnings and linked arms to resist ejectment, the meeting was adjourned and reconvened in a different conference room about an hour later with the public excluded from attendance. 4. The appellant was later convicted of contravening section 12(1) of the Administrative Instructions for Regulating Admittance and Conduct of Person, which provides that “No person shall, in a press or public gallery, display any sign, message or banner”. She was also convicted of contravening section 11 which requires persons entering or within the precincts of LegCo to behave in an orderly manner. 5. She argued on appeal that those sections violated her right to freedom of expression, protected by Article 27 of the Basic Law and Article 16 of the Bill of Rights and so were unconstitutional. 6. Dealing with arguments made on both sides, the Court held first that the appellant’s right to freedom of expression was applicable. It was not excluded by virtue of LegCo having the right under the law of property to deny admittance to members of the public. 7. Second, the Court held that the principle that the Court should not intervene with the internal processes of the LegCo does not apply to its regulation of the admittance and conduct of strangers to the LegCo complex. In any case, that principle would have to give way since the Court is duty-bound to examine the validity of sections 11 and 12(1) in so far as they impose restrictions on the exercise of a constitutional right. 8. Third, the Court rejected the argument that section 11 is invalid because it lacks legal certainty. When properly interpreted in the light of its context and purpose, it makes it clear what precisely a person must avoid doing. 9. Fourth, the Court rejected the argument that the words of section 12 amounted to a blanket prohibition on the display of any sign, message or banner and thus were far too broad a restriction on the right to free expression. When properly interpreted, the section was aimed only at displays which entail the risk of disorder in public galleries and which may disturb LegCo sittings and the rights of others observing the proceedings. 10. The Court held that the restriction on the right to freedom of expression imposed by section 12 is proportionate and constitutionally valid. Accordingly, the appeal was dismissed. 
+In dismissing the appellant’s appeal against the judgment of Andrew Chan J dated 13 October 2017 finding him liable of criminal contempt, the Court of Appeal held: As regards whether proof of specific intent to interfere with administration of justice is required 1. In Hong Kong where the rule of law reigns, the due administration of justice can in no way be obstructed or interfered with. When executing court orders, bailiffs act as an extended arm of the court in administering justice. Public policy dictates that bailiffs must be fully protected by the law from obstruction or interference by parties when executing orders against them in the discharge of their duty. Thus obstructing or interfering with a bailiff in discharge of his duty when executing a court order by a party bound by the order amounts to a criminal contempt, and proof of a specific intent to interfere with the administration of justice is not required. 2. The present case is a particular strong case for holding that proof of a specific intent to interfere with the administration of justice is not required: (1) The appellant was a party to the underlying proceedings bound by the Amended Injunction Order, yet he had acted in breach of the same by conducting himself in the manner complained of. (2) The Amended Injunction was widely publicized through the local media. It targeted at the sizeable crowd of occupiers who had been unlawfully occupying large portions of several main public roads in Kowloon for quite a long time, thereby creating serious obstruction and interference with normal vehicular access which had been seriously affecting the livelihood of the Plaintiffs and causing significant inconvenience and nuisance to the public at large. The purpose of the Amended Injunction Order was to immediately restore the normal vehicular traffic to the public roads affected and remove the public nuisance occasioned pending the final determination of the disputes between the parties by court process, which might well take some time to conclude. There were accordingly considerable public interests involved in the occupiers fully obeying the Amended Injunction in a timely manner. The public at large as well as the court itself had very substantial interests in seeing that was done. (3) Given the immense public interests involved in the due administration of justice by the appellant complying with the Amended Injunction Order, by thwarting it in the manner complained of, the appellant had seriously (a) frustrated its very purpose; (b) undermined the public confidence in its effective enforcement; (c) diminished the respect for it as a court order and the court’s authority in granting it; and (d) defied the bailiff’s authority in enforcing it. His conduct had seriously interfered with the administration of justice by the established courts of law as a whole and constituted an affront to the rule of law. His conduct plainly warranted the imposition of a punitive sanction. (4) Involvement of the bailiff for execution of the Amended Injunction Order became necessary when there had been a real and substantial risk that the due administration of justice and the respect for the authority of the court and therefore the rule of law would be seriously undermined. Plainly, without the bailiff’s involvement, execution of the Amended Injunction Order in the then prevailing circumstances would be extremely difficult if not impossible. The court appointed the bailiff to execute the Amended Injunction Order with a view to arresting the imminent and serious risk of interference with the administration of justice posed by the occupiers’ continuous disobedience and flouting of the injunctions granted by the court. Through the wide publication of the judgment in granting the Amended Injunction Order in the local media, the appellant must have been fully aware of the reason why the bailiff was so appointed. When the appellant breached the Amended Injunction Order in the manner complained of, he knew that his conduct was more than a breach. He knew that the very terms that he had breached, that is, those that specifically envisaged the involvement of the bailiff, were provided for in the Amended Injunction Order to prevent interference with the administration of justice. He knew by committing the breach, he had interfered with the due administration of justice. On those facts, the deliberate and knowing breach of the Amended Injunction Order was in substance the same as the specific intent to interfere with the administration of justice, and the latter was therefore unnecessary and not required. As regards the findings of fact made by the trial judge 3. All the factual findings made by Andrew Chan J in respect of how the appellant had conducted himself on 26 November 2014 were upheld. Not only were these findings of fact not “plainly wrong” – the threshold for the Court of Appeal to disturb on appeal a finding of fact by a trial court, they were in fact “plainly right”. Based on those findings, it was beyond reasonable doubt that the appellant had by so conducting himself, including obstructing the bailiff officers in discharge of their duty when executing the Amended Injunction Order, interfered with the due administration of justice. 
+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 Chief Executive (“CE”) and President of the Executive Council (“ExCo”) and was charged with one offence of bribery and two offences of misconduct in public office arising from the following facts. 2. In late 2009, the Government invited applications for sound broadcasting licenses. In April 2010, four applications were made, one of which was submitted by Wave Media Limited (“WML”), a company of which Mr. Wong Cho-bau (“Wong”) was a major shareholder, and Mr. Arthur Li (“Li”) was another shareholder. In late 2010, WML applied to surrender a previously granted sound broadcasting licence. Between July and November 2011, a further application was made for Li, a legally disqualified person, to exercise control over WML, by then renamed Digital Broadcasting Corporation (“DBC”), as its director and Chairman (collectively the “Applications”). All of the Applications were ultimately approved by the Appellant as CE in Council. There was no evidence of any irregularity in the applications or the administrative process by which they were handled. 3. At the same time, the Appellant was arranging to live in a Shenzhen apartment (the “Property”) owned by a company controlled by Wong (the “Company”). The Appellant claimed that, in early 2010, the proposal was that he or his wife would take a lease of the Property for three years commencing 1 July 2012, the rental amount being the market price of RMB 800,000 per annum, and that renovations would be carried out by the Company at its expense but in accordance with the requirements of the Appellant and his wife. The cost of the refurbishment was to be around HK$3.5 million, with an additional amount of HK$350,000 for the engagement of a well-known interior designer. 4. The Appellant had made declarations of interest on many occasions during his term of office, and was obviously aware of the importance of declaring interests when necessary. He made no declaration of interest to the ExCo regarding the Property. 5. On 20, 21 and 22 February 2012, media reports raised concerns about the Appellant’s integrity in respect of his associations with prominent business people. On 26 February 2012, the Appellant revealed in a radio interview (the “Interview”) his renting of the Property. He explained in the Interview that it did not occur to him a declaration of interest regarding the Property to the ExCo was required, and that such a requirement was “pretty farfetched”. The Independent Commission Against Corruption (“ICAC”) commenced an investigation thereafter. 6. The Applicant was tried in the Court of First Instance before a judge and jury on three counts. The first count was accepting an advantage as CE contrary to s.4(2B)(a) and s.12 of the Prevention of Bribery Ordinance (Cap. 201) (“Count 1”), the essence being that the refurbishment of the Property was a bribe for the Appellant’s handling of the Applications. The second and third counts were two counts of misconduct in public office, contrary to common law and punishable under s.101I(1) of the Criminal Procedure Ordinance (Cap.221) (“Counts 2 and 3”), the essence of Count 2 being primarily the deliberate concealment of the Appellant’s dealings with Wong, with an alternative case of failing to declare or disclose, or concealing the dealings. 7. At his trial, the jury was unable to reach a verdict in respect of Count 1 but the Appellant was convicted on Count 2 and acquitted on Count 3. He was sentenced to a term of imprisonment in respect of his conviction on Count 2. On a subsequent re-trial of Count 1, a second jury was also unable to reach a verdict and Count 1 was no longer in issue. This appeal related solely to Count 2. 8. The Court of Appeal regarded the jury’s guilty verdict on Count 2 as indicating a complete rejection of the Appellant’s explanation given in the Interview for his non-disclosure of the Property to the ExCo. The Appellant’s appeal against his conviction was dismissed. He was granted leave to bring a further appeal to the Court of Final Appeal. ISSUES 9. The primary prosecution case was that the Appellant’s dealings with Wong were corrupt, and that they were deliberately concealed in order to hide that corruption. If that case had been accepted, there would have been a conviction on Count 1, and a conviction on Count 2 would have been almost inevitable. The jury was however unable to reach a verdict on this primary case. 10. The alternative prosecution case on Count 2 proceeded on the basis that the dealings between the appellant and Wong were not proven to be corrupt, and simply relied on the Appellant’s non-disclosure of his dealings with Wong. Under this alternative case, issues regarding wilfulness and seriousness of the non-disclosure became prominent in relation to the offence of misconduct in public office. The central question in this appeal was therefore whether the jury was appropriately guided on how to approach these elements of wilful misconduct and seriousness. 11. In his summing up to the jury, the trial judge said on the issue of wilfulness that “wilfully” in this context meant “deliberately”, rather than by accident and inadvertence or oversight. On the issue of seriousness, the trial judge said that it had to be “serious, not trivial”, and that the jury should assess this by considering the responsibilities of the Appellant and the office, and the extent of departure from such responsibilities. 12. In the circumstances of the present case, the trial judge’s direction on the issue of wilfulness was inadequate. A decision-maker’s failure to disclose an interest in the subject matter of the decision might be deliberate in the sense that he considered disclosure and decided against it, but not wilful because he did not know or believe there was an obligation to disclose in the circumstances of the case, and did not disregard the risk of there being such an obligation. A conscious but erroneous decision not to disclose was not the same as a wilful failure to disclose, or concealment. On the prosecution’s alternative non-corrupt case, there was a viable issue on the element of wilfulness, and it was not explained to the jury in the judge’s direction on wilfulness. The jury’s guilty verdict on Count 2 could not simply be regarded as a total rejection of the Appellant’s explanation given in the Interview for the non-disclosure such that the judge’s inadequate direction on wilfulness could be treated as immaterial. 13. The trial judge’s direction on the issue of seriousness was also inadequate. If the primary prosecution case of corruption was accepted by the jury, corruption as the motive for concealment would have been established and the element of seriousness would have required little elaboration. In the present case, since corruption had not been established, an evaluation of the nature and extent of the Appellant’s departure from his responsibilities and the seriousness of possible consequences required consideration of the motives behind his omission, what he was required to disclose, and the consequences of non-disclosure, none of which were properly analysed. DISPOSITION 14. Accordingly, the appeal was unanimously allowed and the Appellant’s conviction and sentence quashed. 15. As the Appellant had already served his sentence for the same offence for which he could now be re-tried, the interests of justice did not require a new trial, and so no order was made for a re-trial of Count 2. 
+On 22 June 2021, the Court of Appeal handed down a judgment dismissing the appeal by the applicant who was refused leave in the Court of First Instance to apply for judicial review against the decision of the Secretary for Justice (“SJ”) to issue a certificate under Article 46(1) of the National Security Law (“NSL”). The Court of Appeal held: 1. The applicant accepted the constitutionality of the NSL 46(1) and the certificate issued under it. He also accepted that his asserted right to a jury trial in the Court of First Instance is not absolute and may be abrogated by NSL 46(1). Moreover, he accepted that he can have a fair trial before the panel of three judges without a jury. He did not allege that the SJ was motivated by bad faith, dishonesty or other ulterior motives in issuing the NSL 46(1) certificate. 2. Applying a purposive construction, NSL 46(1) has to be examined in the light of the general context and purpose of the NSL as a whole. As a national law applied to the HKSAR, the NSL has a special constitutional status focusing on preventing and suppressing acts endangering national security. At the same time, NSL 46(1) has to be read together with NSL 4 and NSL 5, as well as provisions in the Basic Law and the Hong Kong Bill of Rights (BL 63, BL 86, BL 87, BOR 10 and BOR 11), ensuring that the primary purpose of the NSL is served; and an accused’s constitutional right to a fair trial is not compromised. The prosecution also has a legitimate interest in maintaining the fairness of the trial. 3. Although jury trial is the conventional mode of trial in the Court of First Instance, it should not be assumed to be the only means of achieving fairness in the criminal process. Neither BL 87 nor BOR 10 specifies trial by jury as an indispensable element of a fair trial in the determination of a criminal charge. When personal safety of jurors and their family members is under threat and due administration of justice might be impaired, there is a real risk that the goal of a fair trial by jury will be put in peril. In such circumstances, the only assured means for achieving a fair trial is a non-jury trial by a panel of three judges. Such a mode of trial servesthe prosecution’s legitimate interest in maintaining a fair trial and safeguards the accused’s constitutional right to a fair trial. 4. NSL 42(1) directs that cases concerning national security offences are to be handled in a fair and timely manner, so as to effectively prevent, suppress and impose punishment for such offences. This direction for timely disposal strongly militates against the applicant’s contention that the issuing of a NSL 46(1) certificate is amenable to challenge by conventional judicial review. It is because such a challenge will breed elaborate and protracted satellite proceedings, delaying if not derailing the criminal process, contrary to NSL 42(1). 5. A decision by the SJ to issue a NSL 46(1) certificate is a prosecutorial decision protected from interference under BL 63. Under common law, a prosecutorial decision can only be reviewed on limited grounds under the rubric of dishonesty, bad faith or other exceptional circumstances. It is not open to challenge on conventional judicial review grounds based on the principle of legality and procedural safeguards as contended. 6. The applicant did not allege dishonesty and bad faith in the present case. He only relied on his asserted constitutional right to a jury trial in the Court of First Instance. However, that alone does not amount to exceptional circumstances for challenging the SJ’s prosecutorial decision of issuing a NSL 46(1) certificate. 
+1. The 1st Appellant set up a company which offered “representative visiting services” to family and friends of prisoners on remand awaiting trial (“PATs”) detained in Lai Chi Kok Reception Centre (“LCKRC”). The 2nd Appellant was employed by the 1st Appellant to provide the visiting services. Each Appellant completed Visit Request Slips for the purpose of gaining entry as visitors to PATs in LCKRC indicating they were a “friend” of the PATs in question. 2. The Appellants, with others, were charged with and convicted of conspiracy 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 a PAT at LCKRC, thereby inducing the officers to act contrary to their public duty, namely to grant them permission to visit the PAT which the officers would not otherwise have granted. 3. This appeal concerned the regime under the Prison Rules (Cap.234A) (the “Rules”) for visits to PATs. Rule 203, applicable specifically to PATs, permits such prisoners to receive “visitors”. Rule 48, applicable generally to all classes of prisoner unless inconsistent with rules for a particular class of prisoner, prohibits persons other than “relatives and friends” (except by special authority) to visit. The appeal raised the questions of (i) whether under those Rules visits to PATs are limited to their relatives and friends, and (ii) if so, whether under the visiting regime a PAT’s friends are limited only to those persons who are personal acquaintances and known to him so that, absent special authority, visits by strangers or persons he has not previously met are excluded in all cases and regardless of the purpose of the visit. The proper construction of Rule 203 4. The Court held that on its proper construction, the word “visitor” in Rule 203 means “relatives and friends” of PATs. To construe Rule 203 in context, it is necessary to have regard to the other rules. Rule 48, which only allows “relatives and friends” of a prisoner to visit him, must apply to PATs as well unless it is inconsistent with the rules relating to PATs. There is no inconsistency between Rule 48 and Rule 203 as to the identity of the persons who may visit and there is no reason in principle why there should be a difference in respect of the identity of visitors. 5. Next, the Court concluded that a wider definition should be given to the word “friends” to include persons in the position of the Appellants. A principled approach to determining the meaning of “friends” in the present case is to examine the word by reference to the purposes for which visits to PATs are made. The most important purpose of any prison visit to PATs is contact with persons outside the prison and the provision of moral and material support. But the purpose of visits to PATs is additionally to enable them to take advantage of the more liberal regime in which they are entitled to procure for themselves food and malt liquor, their own clothes, newspapers and other means of occupation. These entitlements are of no practical benefit if these things cannot actually be supplied to them. 6. The Appellants would, in these circumstances, properly be described from the point of view of the prisoner as his friends. This would be the case even if the services were contracted directly by the prisoner himself. 7. The Court considered that, as well as personal acquaintances, “friends” of such a PAT can also include a person: (a) who has been requested to visit the prisoner, either directly by the prisoner himself or indirectly through a relative or personal acquaintance of the prisoner; (b) who wishes to visit the prisoner in order to provide him with some moral or material benefit consistent with the statutory purposes of visits to that category of prisoner; and (c) by whom the prisoner is willing to be visited. If those conditions are satisfied, the visitor should, objectively, be regarded as a “friend” of the prisoner. 8. The putative “friend” of a prisoner must have a legitimate reason for visiting him and must be seeking to do so in good faith and not for some improper ulterior purpose. 9. Any person not fulfilling the three conditions might still wish to apply for special authority to visit a prisoner. Representatives of religious groups or other voluntary organisations are examples of persons who might fall into this category. It is also to be noted that the Rules themselves provide for visits by visiting justices and prison visitors. Substantial and grave injustice 10.As the charges against the Appellants were serious and involved dishonesty, it was appropriate to address them briefly, because there were two respects in which the evidence fell short of establishing necessary elements of the charge against the Appellants. 11.First, the evidence fell short of proving the element of dishonesty, which was fundamental to the alleged conspiracy to defraud. In determining if a defendant has made a dishonest misrepresentation, it is necessary to consider whether he honestly believed the misrepresentation to be true in the sense in which he understood it. 12.It is entirely possible that the Appellants might have believed that they were “friends” of the PATs whom they visited within the meaning of the Rules and were not dishonest. 13.Second, the evidence was also insufficient to support the existence of a conspiracy agreement. The mere fact that the Appellants were all from the same company does not support the conclusion that the only irresistible inference here was that they all agreed together that they would select the category “friend” to insert in the Visit Request Slips in order to induce the CSD staff to admit them as visitors. There were only two categories of relationship on the Visit Request Slips for them to complete. If they were not a “relative” of the prisoners, the only other possible status was “friend”. Conclusion 14. The Court allowed the Appellants’ appeals and quashed their convictions. 
+The factual background 1. This appeal concerns equality under the law and involves an application of the legal principles identified and applied in this Court’s recent decision in QT v Director of Immigration (2018) 21 HKCFAR 324. 2. Leung Chun Kwong (“Leung”) is a Hong Kong permanent resident of Chinese nationality. He has been serving the HKSAR Government as an immigration officer since 2003. He is homosexual and Leung married his same-sex partner, Mr Scott Adams (“Adams”), in New Zealand on 18 April 2014. Same-sex marriage is legal in New Zealand and, upon their marriage there, the couple were issued a New Zealand Marriage Certificate formally acknowledging their marriage. 3. Pursuant to the Civil Service Regulations (“CSRs”), Leung is entitled to various medical and dental benefits. These benefits are extended to his family, including his spouse. In order to access these benefits, Leung sought to update his marital status with the Civil Service Bureau. However, the Secretary for the Civil Service (the “Secretary”) replied that Leung’s same-sex marriage with Adams was not a marriage within the meaning of Hong Kong law, so that Adams was not his spouse for the purposes of the CSRs and was therefore not entitled to the spousal benefits (the “Benefits Decision”). 4. In May 2015, Leung sought to include Adams as his spouse when e-filing his income tax return. However, the system did not allow him to do so as Adams had the same prefix as Leung. He raised this issue with the Inland Revenue Department, explaining that since he and Adams were legally married in New Zealand, Adams qualified as his spouse for tax purposes. The Commissioner of Inland Revenue (the “Commissioner”) replied that marriage in the context of the Inland Revenue Ordinance (Cap 112) (“IRO”) referred to an opposite-sex marriage between a man and a woman and therefore Leung’s marriage was not regarded as a valid one for the purposes of the IRO (the “Tax Decision”). Leung then submitted a paper tax return, electing for joint assessment with his husband. His election was refused by the Commissioner on the ground that Leung and Adams were not husband and wife for the purposes of the IRO. The proceedings below and issues for decision 5. Leung challenged the Benefits Decision and the Tax Decision by way of judicial review proceedings. He argued that the decisions unlawfully discriminated against him on the ground of his sexual orientation. 6. The Court of First Instance ruled in favour of Leung on the Benefits Decision but against him on the Tax Decision. However, the Court of Appeal allowed the Secretary’s appeal and dismissed Leung’s appeal, and as a result Leung’s challenges to both decisions failed. 7. The Court of Appeal held that whilst both the Benefits Decision and the Tax Decision might constitute indirect discrimination on the basis of Leung’s sexual orientation, they were justifiable because according to Hong Kong law and the prevailing socio-moral values on marriage, the only acceptable form of marriage was opposite-sex marriage. Hence, both the Benefits Decision and the Tax Decision were rationally connected to and no more than necessary to protect and not to undermine the institution of traditional marriage as understood in Hong Kong. 8. The Court of Appeal gave permission for Leung to appeal to this Court. The three main contested issues were (i) were local legal landscape and societal circumstances including the prevailing socio-moral values on marriage relevant to the issue of justification; (ii) was the discriminatory treatment rationally connected to the legitimate aim of protecting and not undermining the institution of marriage; and (iii) if so, whether such discriminatory treatment could be justified? 9. It should be noted that this appeal does not concern the question of whether same-sex couples have a right to marry under Hong Kong law. The Court’s analysis 10. It was not disputed by the parties that Leung and Adams contracted a valid same-sex marriage in New Zealand. Their marriage has the same characteristics of publicity and exclusivity of a heterosexual marriage which distinguish them from a mere relationship. In the context of the present case, concerned with financial spousal benefits, the Court was satisfied that a same-sex married couple such as Leung and Adams are relevantly analogous with an opposite-sex married couple. Hence, the respondents had rightly accepted that the two challenged decisions, if not justified, would be discriminatory against Leung. 11. The respondents argued, however, that the differential treatment was justified in order to protect the institution of traditional marriage. 12. The Court agreed that the protection of the institution of marriage as defined by the laws of Hong Kong is a legitimate aim. To that extent, the local legal landscape and societal circumstances are relevant to the issue of justification. However, the Court rejected the prevailing views of the community on marriage as a relevant consideration since reliance on the absence of a majority consensus as a reason for rejecting a minority’s claim is inimical in principle to fundamental rights. 13. The Court also held that there was no rational connection between denying Leung employment and tax benefits and the aim of protecting or not undermining the institution of marriage in Hong Kong. First, it is difficult to see how any person will be encouraged to enter into an opposite-sex marriage in Hong Kong because a same-sex spouse is denied those benefits. Second, it is circular logic to justify the restriction of these benefits to opposite-sex married couples simply because heterosexual marriage is the only form of marriage recognised in Hong Kong law. It uses the fact that the couple has a different sexual orientation from others as the very justification to deny them equality, despite their analogous position. The rationality of the two decisions was further undermined by the Secretary’s own equal opportunities employment policies and the fact that the IRO does not serve the purpose of promoting marriage as defined under Hong Kong law as it also recognises polygamous marriage. 14. Nor was administrative difficulty a rational justification for the differential treatment of Leung given that Leung and Adams can produce their marriage certificate without any difficulty. 15. In the absence of a rational connection, the Court found it unnecessary to consider whether the differential treatment was proportionate to accomplishing any legitimate aim. 16. For the reasons stated above, the Court concluded that both the Secretary and the Commissioner failed to justify the differential treatment in the Benefits Decision and the Tax Decision. DISPOSITION 17. Accordingly, the appeal was unanimously allowed. 
+1. The Appellant was ordered to be wound up in mid-2006. The Appellant’s former directors (later convicted of fraud) were found to have inflated the Appellant’s reported profits through creation of fictitious sales. Profits tax returns were submitted to the Commissioner based on such falsified accounts and as a result, in respect of the 1998/99 to 2003/04 years of assessment, the Appellant paid a total of almost HK$89 million in profits tax. The liquidators claimed a refund of those taxes, on the basis that the Appellant did not make any taxable profits in the relevant years, and that its reported profits were false and non-existent as the result of various frauds perpetrated by its former directors. 2. The liquidators’ claim was based on (i) section 64 of the Inland Revenue Ordinance (the “IRO”) which allows a taxpayer to object to an assessment within one month after the notice of assessment, provided that, if owing to reasonable cause, the taxpayer is prevented from objecting within time, an extension of time may be granted; and (ii) section 70A of the IRO which empowers the Commissioner to correct an assessment within six years after the end of a year of assessment (in the present case, only 2003/04 was eligible) if the tax charged is excessive by reason of an error in the tax return submitted. The Commissioner rejected the liquidators’ claim, an important reason given being that the relevant returns were filed with knowledge of the Appellant of the alleged fraud. 3. The Court of First Instance decided in favour of the liquidators and directed the Commissioner to reconsider her decisions, holding that knowledge of an agent should not be attributed to the principal where it is acquired by the agent who is defrauding the principal in the same transaction. The Court of Appeal disagreed and allowed the Commissioner’s appeal. 4. The Court, by a majority, dismissed the Appellant’s appeal. After reviewing the factual situation and the language and legislative purpose of the statutory provisions, the Court held that the guilty knowledge of the fraudulent directors should be attributed to the Appellant in the present context. Therefore, the liquidators could not rely on the proviso in section 64 because the Appellant was not “prevented” from lodging an objection with time: it “chose” not to do so. Nor could the liquidators rely on section 70A, because the Appellant, knowing that the return was false, had not made an “error” but had instead told a deliberate lie by filing the return. 5. The Court accepted the importance of having a fair and efficient tax system which can be expected, year on year, to produce public revenue to a more or less predictable level. To that end, prompt payment and finality within a reasonably short time were the policy aims of the provisions in question. Dissenting judgment of Tang PJ: 6. Tang PJ dissented on the issue of attribution, and held that section 70A of the IRO was applicable. If the liquidators could prove that the profits had indeed been inflated, and that the Appellant paid more tax than was properly chargeable, justice and common sense should not allow knowledge of the fraudulent directors be attributed to the Appellant. The order of the Court of First Instance should be restored, and the matter be remitted to the Commissioner for further consideration. 
+1. The Appellants were drivers of private cars in respect of each of which a hire car permit (“HCP”) was not in force. They provided carriage services to passengers who requested a ride through the Uber App. The passengers paid a fare for each trip by credit card transfer to Uber, which in turn remunerated the drivers. 2. The Magistrate convicted each of the Appellants of the offence of driving a motor vehicle “for the carriage of passengers for hire or reward” (“the phrase”)without an HCP, contrary to section 52(3) of the Road Traffic Ordinance (Cap.374) (“s.52(3)”). This was because they had allowed passengers to get in their cars solely for the purpose of the car rides that were to be paid, and they must have known and intended that the journeys were to be paid. This conclusion was upheld on appeal to the Court of First Instance. 3. Both the Magistrate and the Judge rejected the Appellants’ interpretation of the phrase, namely that it required proof that each driver was driving for the sole purpose of fulfilling a direct agreement for carriage between himself and the passenger from which he was to be rewarded. 4. The same interpretation was argued on behalf of the Appellants and rejected by the Court of Final Appeal. 5. The Court observed that the issue to be addressed was one of statutory construction of s.52(3), which required consideration of the text, context and purpose of the provision. 6. The Court held that, although the wording of s.52(3) requires there to be a link between the carriage of passengers and the hire or reward, there is no basis to read the phrase as requiring a single contract between the driver and his passenger in the context of s.52(3) as a whole, which also applies to someone other than the driver who “uses” or “suffers or permits” a vehicle without an HCP to be driven for the same prohibited purpose. Instead, the phrase is to be read as referring to the nature or circumstance of the carriage, namely for hire or reward, whether by or from the passenger or someone else. 7. The Court held that the legislative purpose of s.52(3) is not limited merely to the prohibition of private cars plying for hire on the streets but extends also to revenue generation, administrative regulation, road safety and, more specifically, regulation of transport services businesses. The Court held that rejecting the Appellants’ interpretation of the phrase would not lead to s.52(3) catching situations in which an employed chauffeur drove his employer’s friends or family or his employer’s employees or work associates. This is because the carriage of passengers will be for hire or reward only where it constitutes a business arrangement for carriage. Friendly arrangements, such as where an employed chauffeur drove someone at his employer’s direction for the latter’s private purposes, would not usually be carriage for hire or reward. 8. Further, although the legislature did not have in mind technology such as the Uber App when s.52(3) was enacted, it did not follow that the prohibition was not intended to criminalise the conduct of the Appellants. The Court applied the principle that a statute is “always speaking” and held that the activities of the Appellants fell within the prohibition and regulatory purpose of s.52(3). 9. Where there is no HCP in force in respect of a private car, the facts or circumstances required to be proved beyond reasonable doubt for the s.52(3) offence to be made out are that: (i) a person has driven or used a motor vehicle, or suffered or permitted another to do so; (ii) the driving or use of the vehicle has been for the purpose of carrying passengers for hire or reward in that the carriage is undertaken as a business or commercial arrangement whereby payment is made by the passenger or on his behalf (whether to the driver or some third party) and that payment is received (whether by the driver or some third party) in respect of the provision of the carriage in question. 10. In the present case, the Appellant drivers each drove a private car, in respect of which an HCP was not in force, for the carriage of passengers for hire or reward. On the proper construction of s.52(3), it was sufficient that the carriage was undertaken as part of the Uber ride service business and unnecessary that there be a direct contract between each driver and their respective passengers. Disposition 11. Accordingly, the appeal was unanimously dismissed. 
+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 1st appellant is a company of which the 2nd appellant is the Chief Executive Officer and provides investment advice. The 1st appellant sent an email to various recipients, announcing the launch of a fund (“the Fund”) and attaching a press release to the same effect. The 1st appellant’s website also published documents relating to the Fund. 2. The appellants were charged under section 103(1) of the Securities and Futures Ordinance (“SFO”), which makes it an offence to issue advertisements, invitations or documents relating to investments subject to various exemptions under section 103(3). 3. The Magistrate acquitted the appellants. He found that since the appellants had adopted screening procedures to ensure that the Fund was available to professional investors only, the Fund was or was intended to be available solely to professional investors. Accordingly, the exemption in section 103(3)(k) of the SFO applied. 4. V Bokhary J allowed the respondent’s appeal and remitted the case to the Magistrate. The Judge held that for section 103(3)(k) to apply it was necessary for it be seen from the advertisement itself whether it was, by its terms, confined to professional investors to the exclusion of other members of the investing public. She also held that the carrying out of the screening process was irrelevant. 5. There were two questions before the Court. First, whether for section 103(3)(k) to be applicable, it must be seen from the advertisement, invitation or document itself, that it is, by its terms, confined to professional investors to the exclusion of other members of the investing public. Second, whether the carrying out of a screening process to ensure that all investors investing in the collective investment scheme are professional investors is irrelevant. 6. For the following reasons, the Court answered “No” to each question and held that the exemption applies if, as a matter of fact, the relevant investment product is or is intended to be sold only to professional investors:- a. First, according to section 103(3)(k), the advertisement must be “made in respect of” one of the relevant products. This is a wide expression and suggests that the exemption applies to advertisements having some connection or relation to the investment products disposed of only to professional investors. b. Secondly, when an advertisement must contain a particular express statement in order for an exemption to the application of section 103(1) to apply, the Legislature has clearly and expressly stated this and identified the substance of the particular form of words to be used. This is absent in section 103(3)(k). c. Thirdly, the purpose of sections 103(1) and 103(3)(k) is to protect retail investors against exposure to an unsuitable investment product. This purpose will be achieved if the defendant is required to demonstrate that the relevant investment is in fact intended solely for professional investors, without reference to the express wording of the advertisement in question. d. Lastly, where a statutory provision is ambiguous, unclear or open to two reasonable interpretations, its penal effect may indicate a narrower interpretation. Had the proper interpretation of section 103(3)(k) not been clear, there would have been some scope for the application of this principle. 7. Accordingly, the Court unanimously allowed the appeal and set aside the Judge’s order remitting the case to the Magistrate. The Magistrate’s subsequent convictions following the remitter are under appeal and its outcome will follow this judgment. 
+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. 
+1. The Appellant was a solicitor involved with his clients in dealings relating to a property in Tuen Mun (the “Property”). He was charged with one count of “using a copy of a false instrument” and two counts of “using a false instrument” contrary to ss.74 and 73 respectively of the Crimes Ordinance (Cap. 200) (the “CO”). Charge 1 concerned the use of a copy of a sale and purchase agreement (the “SPA”) of the Property in support of a mortgage loan application. Charges 2 and 3 concerned the use of the SPA and an assignment of the Property (the “Assignment”) respectively for registration at the Land Registry. 2. The Prosecution alleged that the SPA and Assignment were “false” instruments by relying on s.69(a)(vii) of the CO, which provides that: “For the purpose of this Part— (a) an instrument is false if it purports to have been— … (vii) made or altered on a date on which or place at which or otherwise in circumstances in which it was not in fact made or altered;” 3. At trial, the Judge found that the SPA and Assignment, which the Appellant helped prepare and witness, were “false” because they falsely stated that a consideration of HK$3 million was paid by the purchaser to the seller. On appeal, the Court of Appeal held that those documents were false on a significantly different basis, namely that the underlying sale and purchase transaction was a “sham” because it did not, and was never intended to, transfer title to the Property. The proper construction of s.69(a)(vii) of the CO 4. The Court observed that the courts below favoured a wide construction of s.69(a)(vii). They based the falsity of the SPA and Assignment on an extraneous fact or circumstance: non-payment of the stated consideration or the “sham” character of the underlying transaction. However, there is a competing view that s.69(a)(vii) covers only lies concerning the circumstances of the instrument’s own making or alteration, such as lies as to who made it, the signatory’s authority to sign it, when and where it was made etc. This is known as the “automendacity” approach. 5. The Court held that, on a purposive and contextual interpretation, s.69(a)(vii) must follow the automendacity approach. The statutory purpose of the forgery offences in the CO is to target frauds that use instruments of spurious authenticity, documents which tell lies about themselves. The main emphasis is on what the instrument purports or appears to be. Accordingly, s.69(a)(vii)’s reference to “circumstances” in which the instrument was not in fact made or altered should be construed consistently with the other two instances of falsity specified in that provision, namely, falsity as to the date or place of the making of the instrument. As with those two instances, the “circumstances” in question relate to falsity of the purported circumstances of the making or alteration of the instrument, not to extraneous facts. Application of the relevant provisions to the facts 6. The Court noted that it had grave reservations as to whether it was open to the Court of Appeal to uphold the Appellant’s conviction on a basis which significantly departed from the Prosecution’s case and was not explored at the trial. In any event, the decisions below rest upon the wide construction which the Court rejected. Although the SPA and Assignment told lies about the underlying transaction, they did not tell a lie about the circumstances of their making. Thus, they were not “false” according to s.69(a)(vii), and the Appellant’s convictions were quashed. 7. The Court observed that the difficulties in the present case flowed from the Prosecution’s decision to charge the forgery offences rather than bringing more straightforward charges which might well have led to a different outcome. In holding that the offences charged were not proved, it must not be thought that the Court in any way condones schemes of the type which was carried out in the present case. Substitution of a conviction for another offence 8. The Prosecution sought, in the alternative, to substitute the Appellant’s convictions for a conviction for conspiracy to defraud at common law or for fraud under s.16A of the Theft Ordinance (Cap. 210) (the “TO”). The Court observed that the power to substitute an alternative conviction is discretionary. Section 83A(1) of the Criminal Procedure Ordinance (Cap. 221) contains two conditions that must be satisfied before the discretion is exercised. First, the case must be one where the trial judge could, on the indictment, have found the accused guilty of some other offence (the “First Condition”). This means that the allegation in the original charge must expressly or impliedly include or amount to an allegation of the proposed alternative offence. In deciding whether the First Condition is satisfied, the court looks at the content of the charges as laid and not at the evidence. Secondly, the trial judge must have made findings sufficient to establish guilt of the alternative offence (the “Second Condition”). 9. The Court refused to substitute an alternative conviction because the First Condition is not met. As to conspiracy to defraud, the present charges do not allege any agreement between the Appellant and any other person, let alone an agreement which amounts to a conspiracy to defraud. As to fraud, the present charges do not contain any allegation that the use of the allegedly false instruments produced a prohibited result: the present allegations only describe the Appellant’s acts and intention. The offence of fraud and dishonesty 10. The Appellant submitted that, in relation to the fraud offence, another reason why the First Condition is not met is that the present charges do not contain an allegation of dishonesty, which is an essential ingredient of fraud. Although the Court held that the First Condition is not met on other grounds, it proceeded to examine this submission because the Appellant was able to rely on the Court of Appeal’s decision in HKSAR v Ho Ka Keung [2009] 1 HKC 61 in support. 11. The Court held that dishonesty is not an element of fraud. “Dishonesty” is not mentioned in s.16A of the TO. When the TO creates an offence requiring proof of dishonesty, it expressly so provides. It has done this in respect of at least twelve different offences. The Court of Appeal’s suggestion in Ho Ka Keung that the word “deceit” in s.16A incorporates the element of dishonesty is untenable. “Deceit” and “dishonesty” are entirely different and independent concepts. Thus, Ho Ka Keung should not be followed on this point. Disposition 12. Accordingly, the Court unanimously allowed the appeal and quashed the Appellant’s convictions. It also declined to substitute any alternative convictions. 
+FACTS 1. These appeals are brought by two families against the Director of Immigration’s (“the Director”) refusal to grant the 1st appellants extensions of permission to remain in Hong Kong. 2. The 1st appellants, Ms Comilang and Mrs Luis, are foreign nationals with no right of abode and no right to enter or remain in Hong Kong. The 1st appellants (“the mothers”) are the mothers of the other appellants, who are all minors (“the child appellants”). Amongst them, Ms Comilang’s daughter and Ms Luis’ eldest son are Hong Kong permanent residents whereas the remaining appellants enjoy Hong Kong resident status. The mothers applied for extensions of permission to remain in Hong Kong to take care of the child appellants. 3. The Director refused their applications as they did not fall within any of the recognized categories under his immigration policy and there were no exceptional circumstances to justify extensions of permission to remain based on humanitarian or compassionate grounds. 4. The appellants sought judicial reviews against the Director’s refusal decisions, arguing that he wrongly failed to take into account and give effect to a series of rights under the Basic Law (“the BL”); the International Covenant on Civil and Political Rights (“the ICCPR”); the International Covenant on Economic, Social and Cultural Rights (“the ICESCR”); the Convention on the Rights of the Child (“the CRC”); and the best interests of the child principle at common law. 5. The mothers contended that they were entitled to assert the relevant rights directly to dispute the Director’s respective refusal decisions. The child appellants asserted the relevant rights on their own behalves, contending that such rights entitled them to have the mothers granted permission to stay in Hong Kong to take care of them, or at least required the Director to consider those rights in making his decisions. 6. The judicial reviews were dismissed in both the Court of First Instance and the Court of Appeal, with both courts holding that, by virtue of the immigration reservation under section 11 (“the Reservation”) of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”), which enjoys constitutional status by virtue of Article 39 of the BL, the asserted rights were not engaged. ISSUES 7. The central questions in these appeals were whether, in deciding the mothers’ applications, the Director is obliged to take into account the parent-and-child families’ enjoyment of any applicable fundamental rights while living in Hong Kong and whether the Reservation exempts immigration authorities from having to take into account any rights protected under the BL of a child member of the family. 8. The Court affirmed the well-established constitutional status, scope and effect of the Reservation. The Reservation mirrors and gives effect to the ICCPR immigration reservation as applied to Hong Kong and is consistent with the rights of sovereign states to control the entry, residence and expulsions of non-residents. It operates at the constitutional level in excluding immigration legislation governing entry into, stay in and departure from Hong Kong from the scope of the provisions of the Bill of Rights (“the BOR”). Further, the BL must be interpreted as a coherent whole and consistent with the Reservation. Thus, the Reservation is not confined to excluding rights in the BOR but extends to similar rights in the BL in the specified immigration context. 9. As the mothers do not have the right to enter and remain in Hong Kong, they may not rely on BOR rights by virtue of the Reservation. Neither can the mothers rely on rights under Chapter III of the BL, as their BL rights are enjoyed pursuant to article 41 of the BL, which is in turn qualified by the Reservation. 10. As for the rights of the child appellants, the Court held that the Reservation generally precludes reliance on BOR rights so long as the relevant decision involves the entry into, stay in or departure from Hong Kong of a person not having the right to enter or remain. It would upset the purpose of the Reservation and article 39 of the BL should a person with no right to enter and remain be able to overcome that position by relying on someone else’s rights. The same applies to the child appellants’ BL rights, which must be read coherently with the Reservation. 11. The Reservation should also be read together with article 154(2) of the BL, which affirms the need for immigration control. Accordingly, while the child appellants enjoy rights under article 37 of the BL (being rights similar to those under the BOR), as well as rights under article 24 of the BL (which has no equivalent in the BOR), they do not enable a permanent resident to require the Director to permit any other person to enter Hong Kong. The reliance on article 24 depends on an asserted family unity right incidental to the right of abode and such right was limited by the Reservation which excludes BOR and similar BL rights whether invoked directly or in connection with the enjoyment of another right. Therefore, the Reservation prevents the child appellants from relying on their own rights to require the mothers to be granted extensions of permission to stay. 12. The appellants could not rely on the ICESCR as it is neither self-executing nor domesticated. Even if it were domesticated, it would be subject to the Reservation. This is the same for the CRC. Further, the common law rights relied upon relate to custody and wardship and did not assist the appellants in the context of their appeals concerning immigration decisions. DISPOSITION 13. Accordingly, the Court concluded that the Director was not duty bound to take into account the various rights relied upon. The appeals were unanimously dismissed. 
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