The Respondent is a Pakistani who resided in Hong Kong since August 1997. In 2005, he was arrested and charged with two counts of wounding with intent. He was remanded in jail custody pending trial between November 2005 and March 2006. The Respondent was found to have applied to the Director of Immigration for verification of his status as a permanent resident in mid-March 2006. It is accepted that, at the time when he made his application, if the fact that he was held in custody pending trial was not taken into account, he had been ordinarily resident in Hong Kong on a continuing basis for at least the previous seven years. Some two weeks after the application was made, the Respondent was convicted and sentenced to 3 years imprisonment. The day before his release from prison, he was served with an order of deportation for life issued by the Secretary for Security. The Respondent brought judicial review proceedings against the deportation order. The trial judge upheld the deportation order, but was reversed by the Court of Appeal. The Court of Final Appeal (“CFA”) dismissed the appeal. The issue before the CFA was whether a period of time spent in custody pending trial is to be read as a period of “imprisonment or detention pursuant to the sentence or order of any court” in section 2(4)(b) of the Immigration Ordinance when the trial results in a conviction and sentence of imprisonment. The Appellants noted that where a person who served a period of detention in custody pending trial was subsequently convicted and sentenced to a term of imprisonment, section 67A of the Criminal Procedure Ordinance operates to treat the length of that sentence as being reduced by the time spent in custody pending trial. It was submitted that, viewed as such, the period of custody pending trial becomes part of the sentence of imprisonment by operation of section 67A. The CFA rejected the argument and held that there is a fundamental qualitative difference between detention pending trial, which is not punitive, and imprisonment pursuant to the sentence of the court after trial, which serves the very purpose of being punitive. The legislative intent behind section 67A is to treat the prisoner fairly by recognising the hardship imposed upon him if he was kept in custody pending trial for the purpose of ensuring the integrity of the criminal trial process. It is not designed to give the period of detention pending trial the necessary punitive character. Further, the Appellant’s submissions would give rise to a potential for injustice, as it places pivotal emphasis on whether bail is granted or its conditions are met. 
Background 1. Mr. Cheung Wai Kwong (“Cheung”) was prosecuted for the offence of “using an unlicensed vehicle” contrary to sections 52(1)(a) and 52(10)(a) of the Road Traffic Ordinance, Cap.374 (“RTO”). 2. The prosecution’s case that Cheung was “using” the vehicle in question was based on the following evidence: Cheung was sitting in the driver’s seat of the car with the headlights and reading light on; he bent down inside the car and looked outside from time to time; he switched off the headlights and alighted from and locked the car; and he walked towards the rear of the car (collectively “the relevant evidence”). 3. Based on the relevant evidence, a magistrate held that Cheung was “using” the car and, on that basis, convicted him. 4. On appeal, the Court of First Instance (“CFI”) held that the word “use” in section 52(1) of RTO applied only to (i) the driver of the vehicle or (ii) the driver’s employer where the driver was employed to drive for the employer’s affairs. The CFI held that, since Cheung did not belong to either of those categories of persons, Cheung did not “use” the vehicle and his conviction was quashed. 5. The prosecution appealed to the Court of Final Appeal, with the focus of the appeal being the interpretation of the word “use” in section 52(1) of RTO. The Meaning of “Use” 6. The Court construed the language of section 52(1) of RTO in the light of its purpose and context, and concluded as follows: (1) By using the two words “use” and “drive” in section 52(1) of RTO, the Legislature must have contemplated different meanings to be attached to the two words. To “use” a vehicle includes driving it but also embraces a wider range of activities. (2) To “drive” means to operate and control the course of a motor vehicle. The usual (but not the only) scenario is where a person sits in the driver’s seat and directly operates the vehicle with the engine running. Depending on the reason for stopping, a person may still be driving the vehicle when it is stopped. (3) To “use” a vehicle means to exercise a measure of control, management or operation over the vehicle as a means of transport, including any period of time between journeys. The circumstances in which a person may “use” a vehicle vary infinitely. Ultimately, each case is one of fact and degree. (4) The word “use” must also be understood in light of the concept of being “in charge of”, which is found in other sections of RTO (for example, section 39A of RTO, which makes it an offence for a person to be “in charge of” a vehicle with an alcohol concentration above the prescribed limit). “In charge of” is a broadly defined concept. To “use” a vehicle imports something more active than being “in charge of” it. (5) A person may vicariously use a vehicle through another person. It was well-established in the authorities that “use” in a provision like section 52(1) of RTO (which is qualified by the alternatives of suffering or permitting the use of vehicle) should be construed narrowly so that such vicarious user may occur only where a person employs another person to drive or use a vehicle for the former’s business. This was not the situation in the present case since there was no question of Cheung having used the vehicle vicariously through another person. Disposition of the Present Case 7. Based on the analysis in paragraph 6 above, the Court rejected the approach of the CFI (see paragraph 4 above). By asking whether Cheung was the driver or the employer of the driver, the CFI wrongly focused on Cheung’s identity. The real focus should instead have been on whether the activities of Cheung were sufficient to constitute “use” of the car. 8. The Court concluded that, based on the relevant evidence, Cheung’s activities did not constitute “use” of the car for the purposes of section 52(1) of RTO. 9. Accordingly, the Court affirmed the CFI’s order quashing Cheung’s conviction, and dismissed the prosecution’s appeal. 
1. This case arose out of a shareholder dispute. Prior to the proceedings, LCL held approximately 46.58% of the issued shares of CYF and was its largest shareholder. Dato Poh Po Lian (“Dato Poh”) was the sole director and shareholder of LCL. A3 to A8 together held 25.211% of the issued shares in CYF. A2, A1’s wife, controlled A3 to A8. 2. A1 and Dato Poh fell out, and a struggle for board control at CYF ensued. LCL attempted to install its own nominees, but the resolution did not pass as a special resolution (requiring 75% approval) was required for removing directors under bye-law 86(4). 3. LCL then alleged that bye-law 86(4) contravened paragraph 4(3) of Appendix 3 of the Listing Rules, which stated that a director was to be removed by an ordinary resolution. On three occasions, LCL proposed a resolution to change the bye-law requirement for removing a director from a special resolution to an ordinary resolution, but A1 and A2 held enough shares to block the resolution each time. 4. In April 2010, LCL began proceedings against A1 to A8 and CYF under section 168A of the Companies Ordinance (Cap. 32), contending that CYF was in breach of the Listing Rules, putting its listed status and shareholders’ interests in jeopardy, and that this was unfairly prejudicial to CYF shareholders. LCL asked the Court for an order that bye-law 86(4) be amended such that directors could be removed via an ordinary resolution in compliance with the Listing Rules. 5. While the proceedings were ongoing, Dato Poh regained control of the board at the AGM on 8 April 2011. 6. At first instance, Barma J ordered the bye-laws to be amended as demanded by LCL. 7. The stock, which was previously suspended for various reasons, resumed trading after such amendment. A1 to A8 had reduced their shareholding below 5% by 21 September 2012 and lost their blocking vote. The case had therefore become completely academic. 8. However, none of this was revealed to the Court of Appeal, which upheld Barma J’s ruling and granted leave to appeal to the Court of Final Appeal. 9. The Court of Final Appeal was only informed of the facts set out in paragraph 7 above two days before the hearing. 10. The Court admonished the Appellants and their solicitors for failing in their duty to the court and wasting the Court’s resources at two levels of appeal, ordering indemnity costs against them. 11. Counsel for the Appellants invited the court to the merits of the appeal, notwithstanding the academic nature of the case. The Court, however, found that the facts were too unusual to be broadly applicable and relevant. 
FACTS 1. In May 2011, as part of the government’s measures to protect country park enclaves, the Respondent prepared a working paper (“the Working Paper”) for the consultation and advice of the Country and Marine Parks Board (“the Board”). The Working Paper provided for an action plan to assess the suitability of including 54 enclaves into their surrounding country parks or for protection by other measures (“the Assessments”) based on a new set of criteria. Of the enclaves assessed, 6 of them were deemed not appropriate for inclusion into their surrounding country parks (“the 6 Enclaves”). 2. The Appellant applied for judicial review in respect of the Respondent’s decision not to consult the Board when determining that the 6 Enclaves should not be incorporated into their surrounding country parks (“the Decision”). Under section 5(1)(b) of the Country Parks Ordinance (Cap 208) (“the Ordinance”), the Board “shall … consider and to advise the [Respondent] on, the policy and programmes prepared by the [Respondent] in respect of country parks and special areas, including proposed country parks and special areas”. 3. The Court of First Instance held that the words “policy” and “programmes” refer to the formulation of principle (as policy) and the making of plan or scheme (as programme) on a high level of generality. It held that the Assessments were neither “policy” nor “programmes” in respect of country parks. 4. The Court of Appeal dismissed the Appellant’s appeal. The fact that the Assessments were conducted with the same approach and with the same set of criteria did not mean that each should be viewed together to form a programme. ISSUES 5. The Appellant appealed to the Court of Final Appeal on two questions of law. First, under what circumstances does the Respondent have a duty to consult the Board? Secondly, to what extent, if any, does the Respondent have a duty to consult the Board regarding the Assessments? DECISION 6. The Court unanimously allowed the appeal. The Decision was quashed and the Respondent was required to consult the Board on the suitability of incorporating each of the 6 Enclaves into their surrounding country parks. REASONS 7. Section 5(1)(b) of the Ordinance must be interpreted by reference to its context and purpose. The respective functions of the Respondent and the Board are clearly set out in the Ordinance and overlap in relation to the designation of areas as country parks. There exists a clear link between the duty of the Respondent in relation to designating or not designating areas as country parks and the participation of the Board in this matter. The Respondent and the Board are the only relevant persons involved in determining whether an area should be recommended to the Chief Executive for designation as a country park. 8. The word “policy” refers to a course or set of general principles that guides or points the way towards an objective. On the other hand, the word “programme” is more specific. It refers to a plan of action, a project or scheme, or a series of intended activities, events or future actions to implement a policy. It is not limited to mean only a plan or outline of those matters. It is capable of referring to intended activities, events or actions themselves. Read together, “policy” and “programmes” indicate the range of matters on which the Respondent must consult the Board under section 5(1)(b) of the Ordinance. Whether something falls within a “policy” or “programme” depends on the facts of each case. 9. A policy or programme is “in respect of” country parks if it involves something to do with country parks, whether if actual or proposed. 10. The assessment of enclaves for the purposes of designation of country parks by reference to the new criteria set in the Working Paper fell within the meaning of “policy”. The Assessments fell within the meaning of “programmes” under section 5(1)(b) of the Ordinance because they were part of a programme to implement the policy protecting the 54 enclaves, which is a programme “in respect of” the neighbouring country parks or “in respect of” proposed country parks. Accordingly, the Respondent is required to consult the Board on whether or not to include the 6 Enclaves into their surrounding country parks. 
1. Z (“Wife”) and X (“Husband”) were married. C (“Cohabitee”) is the cohabitee of the Husband. The Wife petitioned for divorce and applied for ancillary relief. 2. A primary issue between the parties was the beneficial ownership of the shares in New Asia-International (Group) Ltd (“NAIGL”), a private BVI company. If the shares belong to the Husband they would be taken into account in determining the award to the Wife of ancillary relief, increasing it. So the ownership of the shares was tried as a preliminary issue in the Wife's application for ancillary relief, in which application the Cohabitee became an intervener for the purposes of the preliminary issue. 3. At first instance, Saunders J found as a fact that 83.1% of the shareholding of NAIGL (“the Shares”) belong to the Husband, thus deciding the preliminary issue in favour of the Wife and against the Husband and the Cohabitee. On appeal to the Court of Appeal by the Husband and the Cohabitee, the Court of Appeal affirmed the finding of fact that the Shares belong to the Husband, thus making that finding of fact a concurrent one. 4. On appeal to the Court of Final Appeal by the Husband and the Cohabitee, the Court of Final Appeal held that it would not be purposeful to embark upon a review of the concurrent findings of fact in this case by the courts below and dismissed the appeal. The Court of Final Appeal’s practice, in common with that of the courts of last resort of comparable legal systems, is not to review concurrent findings of fact save in rare and exceptional circumstances. This practice springs from the nature of a court of last resort’s role, which is primarily of resolving points of law of the highest importance. Furthermore, the practice also serves to spare litigants from the oppression of unduly protracted litigation. 
1. A wealthy couple divorced, and during the matrimonial proceedings, the court had to determine what assets belonged to the Husband (“H”) so as to be available for distribution. The H and the H’s Father (“F”) claimed that a significant portion of the assets in question belonged to F, while the Wife (“W”) claimed that a fraudulent transaction had taken place between them to defeat her claim for financial provision. 2. W compelled H to produce certain documents through the discovery process. H protested that some of those documents were protected by legal professional privilege (“LPP”), whereby communications between a lawyer and client are not subject to compulsory disclosure. However, the Court of First Instance (“CFI”) held that this rule did not apply since the documents involved the commission of a crime. Amongst the documents H produced, W alleged that one was a forgery. H and F did not admit to forgery, but eventually did not oppose the order setting the transactions aside. The Judge referred the case to the Secretary of Justice (“SJ”) in the light of his findings in the financial provision proceedings that H and F had committed the crimes of perjury, forgery and attempting to pervert the course of justice. 3. The SJ applied to the Court for access to the documents in relation to the alleged crimes. W wanted to assist the investigation by giving the SJ the documents in her possession. Since documents received in the discovery process are subject to an undertaking that they will only be used for the proceedings in which they were disclosed, W applied to the Court to be released from her undertaking. The CFI granted the SJ access to documents and released the wife from her undertaking. 4. The Court of Appeal set aside the order granting the SJ access to the documents because some of them might be protected by LPP and required the SJ first to establish independently that LPP was inapplicable because the documents fell under the crime exception. 5. The Court of Appeal held however that as between W and H and F, it had been established in the CFI that the documents were not protected by LPP. It upheld the CFI order allowing W to give the documents to the SJ, even though the SJ might not obtain them directly from H or F in his pending application. 6. The Court held that a party should not be released from the undertaking without special circumstances, and only where it would not cause injustice to the person who produced the documents. W argued that as a potential victim who wished to report a crime, her release from the undertaking was justified. 7. The Court emphasised that LPP is an absolute right enshrined in Article 35 of the Basic Law, which the SJ had not yet established to be inapplicable. He should have access only if he established in the pending application that the documents are not protected by LPP, being documents involving the commission of a crime. That process should not be side-stepped simply by obtaining them from the Wife. 8. The Court therefore reversed the Orders releasing W from her undertaking with respect to the contested documents. 
1. The Appellant, a barrister, was instructed to represent Ms Lau, who was charged with theft in a separate set of criminal proceedings. Ms Lau was a director of a company, which in turn was a corporate director of another company called EC Textiles. Ms Lau was alleged to have created a deed of charge securing facilities at a bank over property which did not belong to her. Ms Mak, the solicitor in charge of this transaction and deed execution, was summoned to give evidence as a prosecution witness in the criminal proceedings against Ms Lau. The Appellant drafted letters which were issued through his instructing solicitor’s firm to Ms Mak, asserting legal professional privilege (“LPP”) on behalf of EC Textiles and threatening legal or disciplinary action against her if LPP was not protected. 2. The Appellant was charged with the offence of attempting to pervert the course of justice. He was convicted at trial and sentenced to six months’ imprisonment. The Court of Appeal dismissed his appeal. It was of the view that whatever the Appellant’s belief in the validity of the LPP point, he was not entitled to harass or bully Ms Mak, the witness, intending by that harassment to force her into taking a course which she was not willing to take, namely, making an application to the court to assert LPP as a basis for not giving evidence. 3. The Court of Final Appeal unanimously allowed the appeal. First of all, it found ample basis for the Appellant to believe that there existed an implied retainer between Ms Mak and EC Textiles. It agreed with the Court of Appeal in giving the Appellant the benefit of the doubt as to his belief in the existence of LPP. During the Appellant’s preparation of Ms Lau’s case, he wrote notes containing his opinion that there was a LPP point to be taken or at least to be further explored. Furthermore, it was evident that he had a poor understanding of the scope and effect of LPP. The Court of Final Appeal rejected the prosecution’s theory that he was a barrister with sound knowledge of the law who cynically used LPP as a pretext for his threats against Ms Mak. 4. In relation to the issue of whether the Appellant’s conduct had the prohibited tendency to pervert the course of justice, the Court of Final Appeal agreed with the Court of Appeal’s reasons for reversing the trial judge’s finding of a prohibited tendency. However, the Court of Final Appeal rejected the Court of Appeal’s substituted basis for such finding. The Appellant caused the threatening letters to be sent for the purpose of pressuring Ms Mak to raise the LPP claim by making an application to the court. Applying pressure on her to make such an application did not constitute the offence charged as it did not constitute conduct with a tendency to interfere with the court’s capacity to administer justice and therefore did not have the prohibited tendency. 5. The Court of Final Appeal reminded members of the legal profession to exercise caution when approaching a witness or potential witness of the other side. Approaching such a witness without informing the other side is bound to arouse suspicion of impropriety. 
1. The Plaintiff is a licensed money lender and lent the Defendant $30,000. As he defaulted in making repayments, it obtained a judgment against him, a charging order on his flat and an order for vacant possession and sale, all in default of acknowledgement of service by the Defendant. The Appellant, the Defendant’s wife, approached the Court contending that the Defendant was mentally incapacitated and sought orders that she be appointed his guardian ad litem and that the judgment and consequential orders be set aside. 2. The Plaintiff objected to her appointment and Deputy District Judge Yu dismissed her application. He rejected the Appellant’s expert evidence in favour of the Plaintiff’s and held that it had not been established that the Defendant was mentally incapacitated. The Court of Appeal upheld the Judge’s decision. 3. There were two questions before the Court:- a. What is the correct approach in law to deciding whether a person should be allowed to act as guardian ad litem with a view to protecting the interests of a person sued as defendant, who is alleged to be a mentally incapacitated person? b. Is it appropriate to permit the plaintiff in such cases to oppose such intervention by the proposed guardian ad litem? 4. As regards the first question, the Court held that the lower courts had fallen into error in failing to distinguish between cases where the court was being asked to debar a party from direct access to the court and cases like the present where the Appellant was seeking to act as the Defendant’s guardian ad litem to protect his interests in the face of the Plaintiff’s suit. Since the Appellant was neither acting in an adversarial position vis-à-vis the Defendant nor restricting the Plaintiff’s access to the courts, a judicial inquiry into the Defendant’s mental incapacity was unnecessary provided that the documents specified in the Rules were filed in court. The Courts below had consequently adopted too stringent a test before allowing the Defendant to defend the Plaintiff’s action through a guardian ad litem. 5. As regards the second question, it was inappropriate to allow the Plaintiff whose interests were adverse to those of the mentally handicapped Defendant to prevent him from being represented by a guardian ad litem. This meant that possible lines of defence against the Plaintiff’s claim have never been properly explored. 6. Accordingly, the Court unanimously allowed the appeal, appointed the Appellant as the Defendant’s guardian ad litem and restored the Appellant’s applications to set aside the default judgment and consequential orders. 
1. The parties were a wealthy couple owning approximately 50% of the shares in a publicly listed company called ADHL. ADHL’s wholly owned subsidiary held four of the six units in Severn Villa on the Peak. The parties later divorced and the wife applied for ancillary relief. 2. The issue in the Court of Final Appeal concerned a clawback order, which would have allowed the wife to benefit from any possible future redevelopment of Severn Villa by requiring the husband to pay the wife, upon the commencement of the redevelopment, a further sum representing one half of the notional increase in the value of the ADHL shares attributable to the redevelopment. 3. No such order was sought in the Court of First Instance; it was only obtained in the Court of Appeal. 4. Both parties appealed to the Court of Final Appeal. The husband challenged the propriety of the clawback order, while the wife argued that the terms of the clawback order were such that the order was nugatory. 5. For the following reasons, the Court held that it was inappropriate to make the clawback order:- a. First, the making of the clawback order was not fair. The effect of the clawback order was that the wife would get the benefit of what was likely to be ADHL’s best asset without taking the burden of the further investment necessitated by ADHL’s financial condition. Also, the wife was not going to contribute to the expenses or share in any of the risks involved in the redevelopment of Severn Villa. b. Second, the court must as far as possible try to achieve a clean break between the parties. In this case, the terms of the clawback order were fraught with difficulties and would inevitably have given rise to substantial disputes between the parties in the future. c. Finally, if the question of a clawback order had been properly raised at trial, the husband would have adduced additional evidence to deal with aspects of fairness and the foreseeable problems that a clawback order would have caused. 6. Accordingly, the Court unanimously allowed the husband’s appeal and dismissed the wife’s appeal. 
1. On 2 June 2004, the Appellant assaulted a Correctional Services Department (“CSD”) officer whilst serving an 18-year prison sentence for drug trafficking. He was convicted by the Magistrate of common assault and sentenced to six months’ imprisonment to be served consecutively. His appeal was dismissed by the Court of First Instance. In support of his application for leave to appeal to the Court of Final Appeal, he relied on two undisclosed inconsistent statements purportedly made by the two CSD officers who had testified against him at the common assault trial. The Respondent conceded the appeal and the Court of Final Appeal quashed the conviction. 2. Subsequently, the statements relied on were found to have been forged and the Appellant was convicted in the District Court after a 96-day trial of perverting the course of justice in relation to the appeal heard by the Court of Final Appeal, and sentenced to four years in prison. The Court of Appeal dismissed the Appellant’s appeal and increased the sentence from four years to six. The Respondent sought an order to re-open and set aside the Court of Final Appeal judgment on the ground that it was obtained by the Appellant’s fraud. 3. The Court held that it had a discretionary power to re-open an appeal where a reasonable basis existed for alleging that its judgment was obtained by fraud. It had an implied power exceptionally to order an appeal to be re-opened where justice so demanded. 4. The Court held that it would not be appropriate to reinstate the original six-month sentence for the common assault. By increasing the sentence from four years to six years for perverting the course of justice, the Court of Appeal had sufficiently punished the Appellant for his fraud on this Court. The six-year sentence reflected the Appellant’s overall criminality. 5. If the Court were to re-open its judgment and then embark on a determination of whether it had in fact been obtained by fraud, disproportionate judicial and public resources would have to be employed without practical consequences in terms of sentence. Accordingly, the Court declined to exercise its discretion to re-open the appeal and dismissed the Respondent’s application. 
1. The Appellant and Mr Kwok Wing (“Kwok”) had been close friends for 30 years. Kwok was the chairman and a major shareholder of Tack Fat Group International Limited (“Tack Fat”), a company listed on the Hong Kong Stock Exchange. 2. On 4 June 2008, Kwok caused a total of 40 million share options to be granted to two mainlanders. The options were exercised two days later by the two mainlanders. However, Tack Fat never received any money for the shares. Between 16 June and 29 July 2008, all 40 million shares, in the name of the two mainlanders, were sold in the stock market. The Appellant had no knowledge of any of the share dealings between Kwok, the two mainlanders, and Tack Fat. 3. On 1 August 2008, at Kwok’s request, the Appellant arranged to allow HK$14,049,380 to be transferred from the two mainlanders’ Hong Kong bank accounts and be deposited into a bank account of Mickles International Limited (“Mickles”), a Hong Kong company of which the Appellant was a director and sole shareholder. Unknown to the Appellant, the money derived from the sale of shares was fraudulently obtained from Tack Fat. Twenty-six days later, the same amount (minus bank charges) was, again at Kwok’s request, remitted by the Appellant from Mickles’ bank account to a bank account of Asia World Agricultural Development (Cambodia) Limited, a company controlled by Kwok. 4. The Appellant was charged with one count of dealing with property known or believed to represent proceeds of an indictable offence, contrary to sections 25(1) and (3) of the Organized and Serious Crimes Ordinance (“OSCO”). Before the District Court, the Appellant was convicted, and sentenced to a term of imprisonment of two years and six months. The Appellant’s appeal was dismissed by the Court of Appeal. Three grounds were submitted by the Appellant on the appeal in the Court. 5. First, in relation to offences under section 25(1) of OSCO, when seeking to determine whether a person has reasonable grounds to believe that the property dealt with represents the proceeds of an indictable offence, the Court held that when assessing the whole of the evidence, the judge or jury are entitled to take into account the Appellant’s perception and evaluation of the facts and matters as constituting or contributing to reasonable grounds. Accordingly, since the lower courts did not take into account the Appellant’s case on the trust that existed between himself and Kwok, it failed to take into account of the Appellant’s perception and evaluation of relevant facts. The appeal was allowed on this ground. 6. Second, in the determination of whether the defendant’s grounds of belief are reasonable, the test is whether any reasonable person looking at grounds “would believe” that the property dealt with represents the proceeds of an indictable offence rather than a test of “could believe”. The Court of Appeal had erred in following an earlier case and applying the “could believe” test, which is an inappropriately low standard compared to the “would believe” test. The appeal was also allowed on this ground. 7. Third, the Appellant asked the Court to consider whether it is a defence to a charge under section 25(1) of OSCO for a defendant to show that notwithstanding the establishment by the prosecution of reasonable grounds to believe that the property dealt with represents the proceeds of an indictable offence, he nonetheless honestly and reasonably did not suspect the property to represent such proceeds. The Court held that this “halfway house” defence does not arise. 8. The appeal was allowed and the conviction set aside. 
1. The Appellant was convicted, with others, of an offence of conspiring to commit a money laundering offence contrary to sections 25(1) and (3) of the Organised and Serious Crimes Ordinance (“OSCO”). Their appeal to the Court of Appeal was dismissed. His co-accused then successfully appealed to the Court of Final Appeal against their conviction of that offence in the related case of HKSAR v Li Kwok Cheung George & Ors (2014) 17 HKCFAR 319. 2. In HKSAR v Li Kwok Cheung George & Ors, the Court of Final Appeal held that the ordinary meaning of “proceeds of an indictable offence” in section 25(1) of OSCO was confined to funds derived from the commission of an indictable offence. Thus, no money laundering offence could be committed contrary to section 25(1) of OSCO where a person deals with funds that are known not to derive from any offence but instead are only intended to be used as part of a fraudulent conspiracy. 3. In the present appeal, the Court of Final Appeal noted that, although the grant of an extension of time to appeal on the basis of a subsequent authoritative judgment holding the previous understanding of the law as incorrect was rare and exceptional, the Appeal Committee’s grant of an extension here was justified since the Appellant’s conviction was in the same case, was for the same offence as his successful co-accused and was based on the same facts and evidence. 4. The Court held that in the light of its judgment in HKSAR v Li Kwok Cheung George, the appellant’s conviction in respect of Charge 4 was unsustainable as a matter of law for precisely the same reasons that led to the appeals of his co-accused being allowed in that case. 5. Accordingly, the Court of Final Appeal held that the money laundering offence charged against the Appellant had not been established and that the appellant’s conviction of the money laundering offence, alone amongst the various parties charged with that offence and on an erroneous view of the law, involved a substantial and grave injustice. It therefore unanimously allowed the appeal. 
1. The Appellant is a Pakistani national who had committed offences of overstaying in Hong Kong in 1992, 1994, 1999 and 2000 respectively, entering each time with a passport bearing a slightly different name and a different date of birth. When convicted in respect of his last period of overstaying, he was sentenced to a total of 7 months’ imprisonment. 2. Upon being discharged from prison, the Director of Immigration immediately placed him under administrative detention pursuant to section 32(2A) of the Immigration Ordinance. A removal order against him was made on 10 September 2005 but it was not served because the Appellant lodged a claim under the Convention Against Torture (“CAT”) against being returned to Pakistan. The removal order was revoked on 15 September 2005 and the Appellant was eventually released on recognizance on 7 October 2005 as his CAT claim was processed. 3. The Appellant sued the Director for damages for false imprisonment claiming that he had been unlawfully detained during the six week period after his release from prison. His claim failed in the District Court and in the Court of Appeal. 4. The Court of Final Appeal allowed his appeal. It held that his detention was initially lawful but that the Director was duty bound to decide with reasonable diligence and expedition whether it would be possible to reach a decision to remove him within the time limits for detention laid down in section 32(2A) of the Immigration Ordinance and to release him once it became clear that such decision could not be reached in time. The Court held that if the Director had acted with reasonable diligence and expedition, his release would have occurred 10 days earlier and held that liability in damages for false imprisonment for those 10 days had been established. 5. The Court did not accept the Appellant’s submission that the entire period of detention was unlawful because the Director had breached a public law duty to publish a statement of policy identifying the criteria to be adopted in exercising his powers under section 32. No such duty was held to exist, the question being instead whether the person affected was able to know enough about the basis of his or her detention to be able to make informed and meaningful representations regarding the exercise of the power. Because of the built-in requirements of section 32 and because of the Appellant’s background as a repeated immigration offender, he was well aware of the basis of his detention in the present case. 6. The Court held that arguments raised by the Appellant on the basis of Article 5(1) of the Hong Kong Bill of Rights and Articles 28 and 41 of the Basic Law added nothing to the public law argument which had succeeded. It also held that in any event, by virtue of Article 39 of the Basic Law and the immigration exception contained in section 11 of the Hong Kong Bill of Rights Ordinance, the Appellant was unable to rely on those constitutional provisions. 7. Taking the trial judge’s assessment of $30,000 for the entire period as a base, the Court awarded the Appellant $10,000 as damages for false imprisonment on the basis of his having unlawfully been detained for 10 days and accordingly allowed the appeal. 
1. The appellants were charged and convicted on two counts of conspiracy to defraud. The first count alleged a conspiracy to defraud the Stock Exchange of Hong Kong (“SEHK”) and the second, a conspiracy to defraud China Jin Hui Mining Co Ltd (later known as Natural Dairy (NZ) Ltd, “462”), a company listed on the SEHK with the Stock Code No. 462 and its existing shareholders. A1 was also convicted on a further count of money laundering in respect of his dealing with the alleged proceeds of such conspiracies to defraud. 2. A1 was a director of 462 while A2 was the ultimate beneficial owner of the companies that entered into an agreement to sell to 462 some farms in New Zealand (the “Acquisition”). Given the size of the Acquisition, 462 was required under the Listing Rules to make a public announcement and publish a circular approved by the SEHK. In both of these documents, A1 and A2 claimed that they (including the companies controlled by them) are independent from each other and not connected persons to the Acquisition. A3 was brought in by A2 to handle the accounts of the farms. 3. The prosecution case is that the appellants conspired together to cause SEHK to allow the publication of the aforementioned announcement and circular, and to cause 462 to approve the Acquisition and its financing measures (the “Intended Results”) using dishonest means. 4. Through the particulars contained in the indictment, the prosecution alleged that, in order to achieve the Intended Results: a. A1 and A2 had dishonestly made false representations in relation to or concealed the connections between themselves and their interests otherwise in the Acquisition (“Particulars (a)-(c)”). b. A1, A2 and A3 had dishonestly made false representations in relation to or concealed the true financial position of the farms (“Particulars (d)-(e)”). 5. The trial judge instructed the jury that, in order to convict the appellants of conspiracy to defraud, the jury must be sure that in respect of each count, that the appellants had agreed to use dishonest means to bring about the Intended Results. Of particular relevance, the jury was also reminded that: a. The dishonest means referred to in Particulars (a)-(c) concerned only A1 and A2, while Particulars (d)-(e) covered all appellants. b. In relation to Particulars (a)-(c), the trial judge instructed the jury that it is sufficient if the jury is satisfied that A1 and A2 were “working together” in the Acquisition when deciding whether they had made misrepresentations or concealments regarding their connection and interest in the Acquisition. c. The prosecution do not need to prove all of these particulars, but it is sufficient that one or more of these are made out, and the jury is sure that at least two of the appellants knowingly and intentionally made these representations or concealed the truth. 6. After trial, the jury convicted all the appellants in relation to the two counts of conspiracy to defraud, and A1 was further convicted of a count of money laundering in relation to his dealing with the funds derived from the Acquisition. 7. A1, A2 and A3 were respectively sentenced to imprisonment for 7 years and 9 months, 8 years and 3 months and 5 years. All appellants were further disqualified from management of companies for 10 years. 8. The Court of Appeal dismissed the appellants’ appeals. The appellants further appealed to this Court. ISSUES 9. The appellants argued that, since Particulars (a)-(c) and Particulars (d)-(e) involved different dishonest means with different alleged co-conspirators, they are therefore two different conspiracies. As it is wrong for one count of conspiracy to defraud to contain more than one conspiracy, the counts in the present case are improper in that they respectively include both Particulars (a)-(c) and Particulars (d)-(e) (the “Duplicity Argument”). 10. The appellants also argued that, for the purposes of directing the jury as to the alleged falsity of the representations under Particulars (a)-(b) as to A1 and A2’s alleged connections with each other and the Acquisition, it was wrong for the trial judge to use the “working together” formulation instead of properly defining legal concepts such as “connected persons” or “connected transactions” to the jury (the “Misdirection Argument”). The Duplicity Argument 11. The essence of an offence of conspiracy to defraud is the making of an agreement in which the co-conspirators agreed to use dishonest means intending to achieve the object of either injuring or imperiling the victim’s economic interests, or deflecting the victim from performing his duty. 12. Hence, generally speaking, to find the co-conspirators guilty, the prosecution’s job is complete if he could prove that there is such an agreement to use some unspecified dishonest means to achieve the fraudulent object. 13. In proving such an agreement, the prosecution need to spell out facts and matters which they rely on in order to inform the accused of the case they have to meet. This is done through providing particulars in an indictment. That said, not every fact specified in an indictment would necessarily have to be proven by the prosecution in order to secure a conviction. For example, in the case of an indictment for an offence of conspiracy to defraud such as the present case, the particulars frequently set out some overt acts allegedly performed by the co-conspirators which the prosecution rely upon to infer the existence of an agreement to use dishonest means. In such a case, these particulars are supplied merely to provide reasonable information in respect of the agreement alleged. It would therefore be sufficient for the prosecution to prove the existence of the agreement with or without proving these overt acts also. 14. However, it would be a very different situation where the prosecution rely on the particulars as the very dishonest means agreed upon. In such a case, the particulars, being an essential element of the offence of conspiracy to defraud, would have to be proven by the prosecution. 15. Therefore, it is important to determine whether the particulars in the present case are simply overt acts, or were they the very dishonest means agreed upon. Having regard to the wording of the indictment, the written and oral directions of the trial judge, and how counsel had conducted the trial, the Court found that Particulars (a) to (e) were relied upon as the agreed dishonest means rather than merely overt acts. As such, these particulars must be proven. 16. Having established that these particulars are all agreed dishonest means which have to be proven, and given how Particulars (a)-(c) and Particulars (d)-(e) encapsulate rather different dishonest means involving different co-conspirators, the counts containing both of these sets of particulars would thus essentially include two conspiracies each. Furthermore, as mentioned above, the jury was directed that it is sufficient that “at least” two of the accused were part of a conspiracy. Therefore, there is a risk that the jurors may have convicted the appellants without actually agreeing upon whether the dishonest means of the conspiracy was the one under Particulars (a)-(c) or that under Particulars (d)-(e), and who among A1, A2, and A3 were part of this conspiracy. In other words, there is a risk that the jury had not arrived at a valid verdict against the same appellants based on an agreement to employ the same dishonest means, which means that the prosecution may not have proven their alleged criminal agreement beyond reasonable doubt. The convictions against all of the appellants were thus unsafe. The Misdirection Argument 17. Given the conclusion above to the Duplicity Argument, the Court found it unnecessary and undesirable to deal with the issues arising from the Misdirection Argument. DISPOSITION 18. Accordingly, the appeals were unanimously allowed, and the convictions of the appellants were quashed. A re-trial was ordered, and the prosecution was given the choice to amend the present indictment or to issue a new one. 
1. The Appellant was convicted by a magistrate for careless driving contrary to section 38(1) of the Road Traffic Ordinance (Cap. 374). His appeal to the Court of First Instance was dismissed. Although the prosecution did not ask for costs, the judge ordered the Appellant to pay costs in the sum of HK$2,000 to the prosecution without first affording him an opportunity to be heard as to whether a costs order should be made. The Appellant duly paid those costs. 2. Section 13 of the Costs in Criminal Cases Ordinance (Cap. 492) governs the making of costs orders against defendants in unsuccessful magistracy appeals. The legal principles governing the making of a costs order under that section are those stated by Ribeiro PJ in HKSAR v Chui Shu Shing (2017) 20 HKCFAR 333. 3. It is first necessary for the judge to find that the appeal was not reasonably arguable. The judge must then go on to apply the principles laid down under section 15 of the same Ordinance, which obliges the court to ensure that any sum awarded is not punitive but only compensatory of properly incurred expenses, and that a contemplated award would be ‘just and reasonable’. 4. To do so, it is necessary for the court to have some idea of the magnitude of costs incurred by the prosecutor, which will likely arise in practice only where the prosecution applies for costs. The court must then afford a proper opportunity to the defendant to be heard as to whether the order should be made. The court must have regard to the financial means of the defendant and satisfy itself that any costs order is one that the defendant is able to pay. It would not be ‘just and reasonable’ to order the appellant to pay costs beyond his or her means. 5. In the present case, it was unquestionable that the judge did not adhere to these principles, and substantive and grave injustice resulted from the costs order made by him against the Appellant. 6. Accordingly, the appeal was unanimously allowed, the costs order made by the Court of First Instance quashed, and the Respondent ordered to refund the costs paid by the Appellant pursuant to the costs order. 
1. On 10 January 2011, at a works site adjacent to the East Rail Line near Tai Po Tau, the Respondent carried out works in the vicinity of an underground electricity cable. The works involved the erection of iron rods to set up a safety net and demarcate the works site. This involved rods of 1-2 meters in length being hammered by hand into the ground to a depth of approximately 1 foot. During the process of hammering, an underground electricity cable was damaged. 2. The Respondent was charged and convicted by a Magistrate under sections 10(1)(a) and 17(3) of the Electricity Supply Lines (Protection) Regulation, Cap. 406H (“the Regulation”) which prohibits a person from carrying out works in the vicinity of an underground electrical cable, unless before the works have begun he has taken reasonable steps to ascertain the existence of any such cable within the works site. This conviction was set aside on appeal to the Court of First Instance. 3. The Court of Final Appeal considered the interpretation of section 2 of the Regulation which defines “works” as meaning any kind of works involving or in connection with, among other things, “ramming” but as not including “works necessary to ascertain the alignment and depth of an underground electricity cable”. 4. The Court looked specifically at two issues. First, whether the word “ramming” should be construed as “ramming involving at least the use of machinery” and “excluding the act of hammering by hand”. Second, whether the erection of the iron rods to set up safety nets to form the boundary of the works site fell within the exclusion of “works necessary to ascertain the alignment and depth of an underground electricity cable”. 5. The Court held that under sections 2 and 10(1)(a) of the Regulation, “ramming” should be construed to include penetration of the ground by an object by means of force applied by any means, including a hammer, and not just by means of machinery. 6. On the second issue, the Court held that the preparatory acts of erecting the iron rods to set up safety nets to form the boundary of the works site were not necessary to the ascertainment of the alignment and depth of an underground electricity cable and so did not fall within the exclusion in the definition of “works” in section 2 of the Regulation. 7. The appeal was accordingly allowed, and the conviction restored. 
1. This appeal concerns the meaning and proper application of accounting standards relating to the treatment of available-for-sale financial assets (“AFSFAs”), and the duties of auditors in respect thereof for the purposes of professional disciplinary proceedings. 2. This Court dismissed the Appellants’ appeal, finding that: (a) The Appellants’ understanding of the relevant accounting standard was wrong; and (b) Section 34(1)(a)(vi) of the Professional Accountants Ordinance (Cap. 50) (“PAO”) does not incorporate a standard of reasonableness capable of excusing auditors’ default in observing the standard or otherwise excusing a failure to understand the applicable standard. 3. The 2nd Appellant audited the financial statements (the “Financial Statements”) of Heng Tai Consumables Group Limited (“Heng Tai”). The 1st Appellant acted as the engagement partner of the audit. 4. The relevant AFSFA was a parcel of shares (the “Shares”) held by Heng Tai in another listed company. 5. The standards for accounting treatment of AFSFAs are contained in Hong Kong Accounting Standard 39 (“HKAS 39”). The relevant version contains amendments as at May 2009. 6. HKAS 39 requires AFSFAs to be measured at fair value, and gains and losses of such assets to be recognised directly in equity through the statement of changes in equity. However, if the fair value should decline to an extent that provides objective evidence that impairment loss has been incurred, HKAS 39 requires the cumulative loss to be removed from equity, and recognised in profit or loss. 7. The auditors agreed with Heng Tai’s management that the Shares should not be treated as impaired, notwithstanding that their cumulative loss represented more than 60% of the investment cost. The auditors issued an unqualified audit report. 8. Investigations and proceedings were brought against the Appellants. The complaint, in substance, was that the Appellants had “failed or neglected to observe, maintain or otherwise apply a professional standard, namely [Hong Kong Standards of Auditing 700 (“HKSA 700”)], in that they failed properly to evaluate Heng Tai’s compliance with HKAS 39 in respect of the Shares, before issuing an unqualified audit opinion.” The Disciplinary Committee (“Committee”) of the Hong Kong Institute of Certified Public Accountants (the “Institute”) found the complaint substantiated. The Court of Appeal (“CA”) dismissed the Appellants’ appeal. 9. This Court concluded that on the true construction of HKAS 39, an impairment adjustment had to be made in respect of Heng Tai’s AFSFA which consisted of an equity instrument since there had been a significant or prolonged decline in its fair value. 10. A “significant or prolonged decline in the fair value of equity instrument below its cost” is a head of objective evidence of impairment, which is in addition to, and independent of, the categories of objective evidence set out in HKAS 39.59. It is also independent of the head of objective evidence described in the first sentence of HKAS 39.61. 11. On a proper construction, PAO s.34(1)(a)(vi) does not provide for any form of reasonable excuse as a justification for failing or neglecting to apply a relevant standard. 12. It is not aimed at punishment, but aimed simply at enforcing the applicable published standards in the interest of uniform and predictable professional practice without implying any fault, moral blame or misconduct. 13. This Court held that the auditors failed properly to evaluate Heng Tai’s failure to trigger HKAS 39.67 before issuing their unmodified audit opinion and thus failed or neglected to observe, maintain or otherwise apply the professional standards set out in HKSA 700. Accordingly, the appeal was dismissed. 
1. The Legislative (Amendment) Bill 2012 (the “Bill”) was introduced into the Legislative Council (the “LegCo”) for a first reading on 8 February 2012 and a second reading on 2 May 2012. The Bill sought to disqualify a person who had resigned as a member of the LegCo from standing for a by-election scheduled to be held within 6 months of his resignation. Prior to the second reading, two legislators proposed a total of 1,306 amendments to the Bill. This was part of an avowed attempt by the Appellant and other legislators to filibuster the Bill. 2. On 17 May 2012, the debate had continued for over 33 hours, during the course of which the President had on numerous occasions ruled speeches made by the Appellant and other filibusters to be irrelevant to the clauses and amendments. A Legislative Councillor referred to a “closure motion” that exists in other legislative bodies and suggested that the President conclude the debate immediately. 3. Subsequently, the President announced his decision at 9:00am on the same day to give all those involved until 12:00 noon to conclude the debate. He based his decision on rule 92 of the Rules of Procedure of the LegCo (the “Rules”) which provides that “in any matter not provided for” in those rules, the practice and procedure to be followed shall be as decided by the President. The debate ended as directed. The amendments to the Bill proposed by the legislators were put to the vote and were all defeated. The Bill eventually became law on 1 June 2012. 4. Two issues arise on the appeal: First, having regard to the Basic Law (the “BL”) and the Rules, under what circumstances may a decision of the President of LegCo made during the legislative process be judicially reviewed? Second, in light of the answer to that question, is the decision of the President of LegCo on 17 May 2012 to close the debate of the committee of the whole Council on the amendments to the Bill purportedly pursuant to Article 72(1) of the BL and Rule 92 of the Rules, amenable to judicial review? 5. Regarding the first issue, the Court held that on the basis of public policy, the provisions on the constitutional separation of powers set out in the BL and the doctrine of separation of powers and the principle of non-intervention embedded in the common law, the Court will only exercise jurisdiction to determine the existence, but not the manner of exercise, of a power, privilege or immunity of LegCo or its President. 6. Regarding the second issue, the Appellant submitted that the decision of the President is amenable to judicial review because Article 73(1) of the BL confers on the Appellant as a member of LegCo a right to participate in the legislative process of LegCo which he was deprived of by the President’s decision, and because rule 92 of the Rules confers no power on the President to close the debate. The Court held that the purpose of Article 73 of the BL is to confer certain powers and functions on LegCo as a law-making body but not on individual members of LegCo. The Court further held that the President has power to set limits to and to terminate a debate which is inherent in or incidental to his power under Article 72(1) of the BL to “preside over meetings”; and that it is not for the Court to consider whether the President’s power was properly exercised nor whether the President’s decision constituted an unauthorised making of a rule of procedure. 7. The Court accordingly unanimously dismissed the appeal. 
1. The Appellant was a Mainland Chinese company listed in Hong Kong. Following disputes between the parties under a joint venture agreement, the Respondent obtained an arbitral award (the “Award”) in its favour. Subsequently, the Respondent obtained leave from the Court of First Instance to enforce the Award in Hong Kong. In October 2016, the Respondent served a statutory demand on the Appellant in respect of the amounts due under the Award. The Appellant did not pay the amounts demanded and sought declaratory relief to prevent the Respondent from presenting a winding-up petition against it. 2. In the present proceedings, the Appellant argued that, since the Appellant was an unregistered company, the Respondent would not be able to satisfy the three core requirements for the Hong Kong court to exercise its jurisdiction to wind up the Appellant pursuant to section 327(3) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) (the “Ordinance”). The three core requirements are that: (1) There must be a sufficient connection with Hong Kong; (2) There must be a reasonable possibility that the winding-up order would benefit those applying for it; and (3) The court must be able to exercise jurisdiction over one or more persons in the distribution of the company’s assets. 3. In the courts below, the Appellant accepted that the first and third requirements were met and the argument proceeded on whether the second requirement was satisfied. At trial, Harris J held that the second requirement was satisfied because the leverage created by the prospect of a winding-up petition constituted sufficient benefit for the Respondent. Unless the Appellant was surprisingly indifferent to the adverse consequences of a winding-up order, such as the loss of its status as a Hong Kong listed company, one would expect it to pay the Award.The Court of Appeal upheld Harris J’s decision on the basis that there was a real possibility of benefit to the Respondent in the leverage created by the making of a winding-up order against the Appellant. 4. Before the Court of Final Appeal, the Appellant contended that the second requirement was not met on two broad bases: (1) First, since the three requirements are restraints on the court’s jurisdiction, they must be interpreted in light of comity and, in this case, comity required the court to pay sufficient deference to the jurisdiction of the company’s state of incorporation. This weighed against accepting leverage as a proper benefit. (2) Secondly, the benefit under the second requirement had to be a benefit resulting from the making of a winding-up order, not from any pressure or leverage arising before such an order was actually made. Further, the relevant benefit had to be money or property convertible into money, not an intangible benefit such as leverage. The purpose of the three core or threshold requirements 5. The Court noted that the jurisdiction to wind up foreign companies is provided by sections 327(1) and (3) of the Ordinance and that the three requirements are self-imposed restraints on the court’s exercise of jurisdiction to set in motion its winding-up procedures over a foreign company. But they were not statutory provisions and their interpretation should not be approached as if it were an exercise of statutory construction. They did not go to the existence of jurisdiction, but to the discretion of the court in deciding whether to exercise jurisdiction. It would therefore be preferable to refer to these requirements as threshold requirements, to avoid their description as “core” requirements being misunderstood. The nature of the benefit under the second threshold requirement 6. The Court observed that, in the case of an undisputed debt due and owing from a company to a creditor, the statutory demand mechanism provided a convenient means for seeking payment of that debt by the presentation of a winding-up petition. A company which failed to comply with a statutory demand is deemed to be insolvent. Where this was so, the case law recognised that it is entirely proper for a creditor to present a winding-up petition on the basis of the company’s insolvency as a means of applying commercial pressure to seek repayment of the undisputed debt. 7. The Court held that the benefit for the purposes of the second requirement is not limited only to one arising from the making of a winding-up order and need not be monetary or tangible in nature. The rationale of the benefit requirement is to ensure that the winding-up process will serve some useful purpose to the petitioner and the Court noted that the threshold for the benefit requirement had been recognised by the case law to be a low one. Since it was entirely proper to seek repayment of an undisputed debt by a statutory demand and winding-up petition, there was no reason to confine the relevant benefit narrowly to a consequence materialising only upon the making of the winding-up order itself. Further, once it was accepted that commercial pressure to achieve the repayment of an undisputed debt is an entirely proper purpose for a creditor’s winding-up petition, there was no reason to exclude such commercial pressure as a relevant benefit for the purposes of the second requirement. Comity and the three threshold requirements 8. The Court noted that, in the present context, comity meant that the court should exercise its winding-up jurisdiction over a foreign company only where it had a sufficient connection with Hong Kong. However, this issue did not arise in the present case because the Appellant had accepted, correctly, that the first requirement was satisfied. 9. The Court observed that the Appellant’s comity argument was an attempt to add a separate jurisdictional requirement of appropriate forum, namely that there was no more appropriate jurisdiction in which to wind up the company than Hong Kong. The Court held that there was no room for adding such a further requirement. If sufficient connection were established under the first requirement, any issue related to appropriate forum should only be a factor (as opposed to an essential requirement) that the court would consider at the hearing of the petition in deciding if a winding-up order should be made. Application of the principles to this case 10. The Court held that the second requirement could be satisfied by the commercial pressure placed on the debtor to pay an undisputed, or indisputable, debt by the invocation of the court’s winding-up procedures. In the present case, this was satisfied by the presentation of the winding-up petition. Disposition 11. Accordingly, the Court unanimously dismissed the appeal. It also directed that the sum paid into court pursuant to the order of Harris J, as a condition on which the winding-up petition presented by the Respondent in respect of the Appellant had been adjourned, together with the accrued interest thereon, be paid out to the Respondent forthwith. 
1. The Appellant was charged with taking part in an unlawful assembly (the “Offence”), contrary to sections 18(1) and (3) of the Public Order Ordinance (Cap.245) (“POO”). It was the Prosecution’s case that, on 2 November 2016, the Appellant, together with other persons, took part in an unlawful assembly outside a conference room of the Legislative Council Complex. 2. The Appellant was convicted after trial and sentenced to 4 weeks’ imprisonment by a Magistrate. His appeal against conviction and sentence to the Court of First Instance was dismissed. 3. Section 18(1) of the POO provides that “when 3 or more persons, assembled together, conduct themselves in a disorderly, intimidating, insulting or provocative manner”, they are an unlawful assembly if, in acting so, they: (1)“intend … to cause any person reasonably to fear that [they] will commit a breach of the peace” (the “Intended Limb”); or (2)are “likely to cause any person reasonably to fear that [they] will commit a breach of the peace” (the “Likely Limb”). 4. The issue on appeal was the requisite degree of mental element, if any, the prosecution must prove to convict a person charged under the Likely Limb of the Offence. 5. In Kulemesin v HKSAR (2013) 16 HKCFAR 195, this Court held that, in cases where a statutory offence is silent or ambiguous as to the mental state required for conviction, the presumption of there being a mental element arises. A court is then to ask herself two questions in tandem: first, whether the presumption is displaced; and second, if such presumption is displaced, what is the requisite mental requirement, if any, that needs to be established. In answering these two questions, five alternatives are available. They were considered in this appeal. 6. In this appeal: (1) The Appellant argued that under the Likely Limb, the Respondent either has to prove knowledge, intention or recklessness on the part of the defendant (the “1st Alternative”), or that the defendant did not act in an honest and reasonable belief that the circumstances or likely consequences of his conduct were such that he would not be liable for his actions (the “2nd Alternative”). (2) The Respondent argued that it is not necessary to establish any state of mind on the part of the defendant under the Likely Limb (the “5th Alternative”). 7. In the present case, the Court held that the 1st Alternative does not apply to the Likely Limb, as intention as a mental element is already provided for under the Intended Limb of the Offence. It can be assumed that the legislature did not intend to duplicate it in the Likely Limb. 8. The Court also held that the 2nd Alternative does not apply. This is because when defendants, in a group of at least three persons, have assembled together and conducted themselves in a disorderly, intimidating, insulting or provocative manner which, viewed objectively, will have been likely to cause any person reasonably to fear that the assembled persons will commit a breach of the peace, they are not persons who have acted in a reasonable, diligent and socially unblameworthy manner. Such construction aligns with the purpose of the Offence which is to prevent and control disorders, as early as possible. 9. In holding that the 5th Alternative applies, the Court concluded that, the offence under the Likely Limb is designed to prevent breaches of the peace from happening. As such, it is not logically linked to whether the assembled persons do or do not foresee reasonable apprehension of breach of the peace as the consequence of their acts, but is focused instead on responding to the objectionable nature and quality of those acts. 10. The Court further observed that, although no mental element needs to be proved under the Likely Limb, such construction does not “overcriminalise” behaviour as the Offence has built-in requirements ensuring that the conduct is deserving of criminal punishment. The Offence still requires proof of a guilty mind in relation to the acts of assembling together and acting together in conducting themselves in a disorderly, intimidating, insulting or provocative manner. Further, section 18(3) of the POO requires the prosecution to prove that a defendant took part in the unlawful assembly. 11. In the present case, on the facts found by the Magistrate and upheld by the Court of First Instance, the Appellant must have known at the time of the gathering in which he took part in the Legislative Council Complex that the group’s conduct was likely to cause fear of a breach of the peace. In the circumstances, regardless of the Court’s answer as to which of the Kulemesin alternatives applies, the Appellant’s appeal was bound to be dismissed. Disposition 12. Accordingly, the appeal was unanimously dismissed. 
1.Ricky and Jason were business partners in a chain of Japanese noodle restaurants in Hong Kong under the name “Ajisen Ramen”. Each Ajisen Ramen restaurant was held by a separate company (together, “the Ajisen Group”) in which Ricky, Jason and others held shares. In around 2004, the shareholders of the Ajisen Group decided to go into the sushi restaurant business, and Smart Wave was set up to operate a sushi restaurant under the name of “Itamae”. Ricky is a director and shareholder of Smart Wave. Ricky subsequently went on, on his own, to set up other sushi restaurants, each held by a separate company, being the 2nd to 30th Respondents (the “further restaurants”). 2. Disputes arose between the shareholders and they entered into a shareholders’ agreement known as the Hero Elegant Agreement under which it was intended that Hero Elegant Limited and its subsidiaries would operate the Itamae restaurants and Ricky and Jason (through a company owned by him), amongst others, would be issued shares in the separate companies operating those restaurants. Jason sued for breach of the Hero Elegant Agreement, claiming that Ricky had failed to perform it. The trial judge dismissed that claim, holding that Jason’s company had been in repudiatory breach of the Hero Elegant Agreement. There was no appeal in relation to that part of the judgment. 3. Jason also sued in a derivative action, on behalf of the shareholders of Smart Wave except Ricky, for breach of fiduciary duties owed by Ricky to Smart Wave as its sole director by opening further restaurants. 4. The central question in this appeal was whether, in the events that occurred, the conduct complained of went beyond the scope of the duties owned by Ricky to Smart Wave (“Question 1”). 5. The duty of a director to act in the best interest of the company is a statement of the positive duty of loyalty which encompasses (and is broader than) the conflict rule. The conflict rule provides that a fiduciary may not put himself in a position where his own interest and duties to the company conflict. 6. The majority held that Ricky was in breach of the conflict rule by setting up further restaurants because, in addition to the further restaurants being in competition with Smart Wave, there was the possibility that a business opportunity was diverted from Smart Wave. Furthermore, Smart Wave, as the first restaurant in what was to become a chain of restaurants, had an interest in the establishment and operation of the chain as it developed. The strength of the brand, and its popularity, would redound to its advantage. 7. The majority also held that the agreement between Jason, Daisy Poon (sister of Jason) and Ricky that Smart Wave would be the first of a number of companies, each operating one restaurant, was coupled with an expectation and agreement that they would all be substantial shareholders in each such company (together, the “2004 Agreement”). The Appellant could not rely only on that part of the 2004 Agreement that suits his case. Mr. Justice Ribeiro PJ and Mr. Justice Fok PJ also held that the 2004 Agreement was superseded by the mutual consent between the parties reflected in the Hero Elegant Agreement and, even if it continued to operate, it involved an agreement for the establishment of chain restaurants in which its parties would be able to participate as shareholders rather than an agreement simply allowing Ricky to open further restaurants on his own. 8. All shareholders with a right to vote at a general meeting of Smart Wave may assent to the opening of further restaurants by Ricky, even if those activities breach the conflict rule. However, the majority was unable to find such unanimous assent in this case. There was no direct evidence of any such acquiescence, let alone agreement, by the minority shareholders in Smart Wave authorising Ricky to open the further restaurants. Absent authorisation, Ricky was in breach of his fiduciary duties to Smart Wave. 9. The other question raised in this appeal was, in essence, whether inconsistent conduct or the failure of an alleged obligation to call “contrary evidence” was sufficient to deny the equitable relief which Jason sought on behalf of Smart Wave (“Question 2”). 10. The majority refused to entertain Question 2, since it was only raised for the first time in the Court of Final Appeal; it was not pleaded, nor was the evidence directed to it. Dissenting judgment of Mr. Justice Tang PJ (Mr. Justice Bokhary NPJ agreeing): 11. Dissenting on Question 1, the minority found that since Smart Wave was established pursuant to the 2004 Agreement, any fiduciary duties which Ricky might owe to Smart Wave must be consistent with and conform to the terms of the 2004 Agreement. And because Smart Wave was limited to operating the first Itamae restaurant only, as per the 2004 Agreement, the opening of further restaurants by Ricky would not be in breach of his fiduciary duties owed to Smart Wave. It also followed that the remedy to Ricky cutting the other parties out of their shares in the further restaurants would be contractual, pursuant to the 2004 Agreement, and the breach of the 2004 Agreement has been resolved by the Hero Elegant Agreement. The fact that the Hero Elegant Agreement miscarried by reason of Jason committing a repudiatory breach, through no fault of Ricky, made no difference to the contractual nature of the remedy. 12. The minority also found that the minority shareholders had been allotted shares in Smart Wave on the understanding that Smart Wave was to be the first of a number of companies, each operating one restaurant. In this way, there was understanding between all shareholders of Smart Wave that Ricky could open further restaurants. 13. The minority agreed with the majority that the Court should not entertain Question 2. CONCLUSION: 14. The appeal on Question 1 was dismissed by a 3:2 majority, and the appeal on Question 2 was dismissed unanimously. 
Facts 1. The Appellant was leaving a flat when he was intercepted by the police. Two packets of ice (the “First Batch”) were found in a sling bag which he was carrying. Inside the flat, ten packets of ice and one packet of ketamine (the “Second Batch”) were found in a black bag. A key to the flat was found in his sling bag. Under caution, the Appellant admitted to the police that all the ice belonged to him. 2. The Appellant was charged with a single count of trafficking in all the drugs found. He pleaded not guilty. At trial before a jury, the Appellant’s defence was that he was framed, that he had nothing to do with either batch of drugs and the admission he had made was extracted by force. 3. The prosecution case was conducted on the basis that the Appellant was in possession of both batches of drugs in the two bags. Neither the prosecution nor the defence sought to distinguish between the Appellant’s possession of the drugs in the two bags. However, in closing submissions, the prosecutor suggested that the jury could convict, even if they were satisfied that the Appellant was only in possession of one of the two bags. Defence counsel in his closing submissions postulated several different possible scenarios on the facts, but submitted that the jury had to be satisfied the Appellant was in possession of both bags before they could convict. The trial judge agreed and directed the jury that they could only convict if satisfied that the Appellant was in possession of both bags; it was not enough if they thought he was in possession of only one. In other words, the trial judge gave an “all or nothing” direction to the jury. The jury, by a majority of 6 to 1, found the Appellant guilty. 4. The Appellant applied for leave to appeal to the Court of Appeal on the basis that, notwithstanding that defence counsel had asked for an “all or nothing” direction, the judge should have required the prosecution to amend the charge by splitting it into several charges dealing with different scenarios regarding the Appellant’s possession of the drugs found in different places. 5. The application for leave to appeal was dismissed. The majority in the Court of Appeal held it was proper to direct the jury on an “all or nothing” basis dealing with one count of trafficking. McWalters JA, dissenting, held that the prosecution should have applied to amend the charge by laying an alternative count of trafficking in the First Batch only. Issue 6. On appeal before the Court of Final Appeal, the Appellant argued that the trial judge was under a duty to place before the jury all possible alternative scenarios which were open to it on the evidence, even if such alternatives were not raised by the parties and even if they were inconsistent with the defence case. The Appellant argued that the trial judge should have split the indictment into three counts involving trafficking in the First Batch, trafficking in the ice in the Second Batch and mere possession of the ketamine in the Second Batch. Since the trial judge failed to do so, there was a danger that the Appellant was unfairly over-convicted. Decision 7. The Court unanimously dismissed the appeal. Reasons 8. The primary responsibility for ensuring a fair trial rests on the trial judge. Alternative verdicts should be put to a jury only if they are obvious and supported by evidence. The way the defence case is run is relevant in determining whether there is sufficient evidence to support an obvious alternative verdict. If an alternative verdict does not arise in the way the defence case is run, this will in most cases be decisive. 9. When faced with the possibility of an alternative verdict, the trial judge has a discretion in deciding on the most appropriate course to take. The trial judge should elicit the views of the parties, which are relevant but not necessarily decisive. Counsel have the duty to assist the court in putting forward relevant considerations, particularly those relating to a fair trial, for the judge to consider. 10. In the present case, there was no evidence to suggest that the ketamine was for the Appellant’s own consumption, nor was this a part of his case. Hence, this was not an obvious alternative verdict. Since it was the Appellant’s defence that he had nothing to do with either batch of drugs, the scenario that the Appellant was in possession of only the First Batch was not an obvious alternative verdict either. 11. In any event, the Appellant was given what was undoubtedly a favourable direction. There was no danger that he was unfairly over-convicted. 
Facts 1. Human trafficking is a worldwide as well as a Hong Kong problem. Against this context, the Appellant, who is a Pakistani national, was brought to Hong Kong as a foreign domestic helper between 2007 and 2010. During that period, he was badly mistreated by his employer. His movements were restricted to the office and he worked long hours. He was regularly beaten and was not paid any wages. The employer also threatened him with serious harm if he left his employment. In 2010, his employer tricked him into returning to Pakistan. 2. After returning to Hong Kong in 2012, the Appellant made multiple reports about the mistreatment that he had suffered to the Immigration Department, the Police and the Labour Department. A claim for unpaid wages was registered, but there was no investigation of his complaints as a possible case of human trafficking for forced labour. 3. The Appellant applied for judicial review in respect of the Government’s breach of his rights under Article 4 of the Hong Kong Bill of Rights (“BOR4”). BOR4 is divided into three separate numbered paragraphs. BOR4(1) states that “no one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.” BOR4(2) states that “no one shall be held in servitude”. BOR4(3)(a) states that “no one shall be required to perform forced or compulsory labour.” 4. The Court of First Instance allowed the application. It held that firstly, implicit in each of the concepts prohibited by BOR4 is a prohibition against trafficking a person for each of slavery, servitude and forced labour respectively. Secondly, the Appellant was a victim of human trafficking for the purpose of forced labour. Thirdly, the Government had positive obligations under BOR4 to enact measures to ensure the prohibition of forced labour, including human trafficking for that purpose. The current legal regime is insufficient and the Government had failed to maintain a criminal offence that prohibits forced labour. 5. The Court of Appeal allowed the Government’s appeal in part, ruling that this is a case of forced labour and that the Government breached its investigative duty under BOR4 in relation to the Appellant’s complaints. However, it held that BOR4 does not cover human trafficking and does not impose positive obligations on the Government to specifically criminalise forced labour. Issue 6. The Appellant appealed to the Court of Final Appeal on two questions of law. First, does BOR4 prohibit human trafficking and, if so, what is the scope of the prohibition? Secondly, does BOR4 impose a positive duty on the Government to maintain a specific offence criminalising the activities prohibited under BOR4? Decision 7. The Court unanimously dismissed the appeal. Reasons 8. On the first question, the Court held that BOR4(1) may, by referring to “slavery and the slave-trade in all their forms”, prohibit human trafficking for the purposes of slavery. However, BOR4(1) does not prohibit human trafficking generally for the purposes of exploitation or for the purposes of servitude and forced or compulsory labour. Furthermore, BOR4(3)(a) does not prohibit human trafficking for forced or compulsory labour. 9. BOR4 is structured to distinguish between three separate and distinct concepts. Since the prohibition against forced or compulsory labour under BOR4(3)(a) is derogable, it is different from the prohibitions against slavery and servitude under BOR4(1) and BOR4(2). Furthermore, BOR4(2) and BOR4(3)(a) prohibit substantive conduct in the form of servitude and forced or compulsory labour, rather than the process of trafficking. To expand the meaning of BOR4 to prohibit human trafficking for exploitation generally would be to ignore the language of BOR4 and impermissibly alter the underlying concepts addressed in BOR4(2) and BOR4(3)(a). 10. On the second question, the Court held that the Government has a wide margin of discretion in the manner in which it complies with its positive obligations under BOR4, subject to the supervision of the courts. There is no absolute duty on the Government to maintain a specific offence criminalising forced or compulsory labour. To comply with its obligations under BOR4, the Government must afford practical and effective protection of rights under BOR4. Whether it has done so will depend on the facts of any given case. 11. In this case, it had not been shown that the breach of the Appellant’s BOR4 rights was caused by the lack of a specific offence criminalising forced or compulsory labour, or that existing offences failed to afford the Appellant sufficient protection. Nonetheless, this judgment did not prevent a different conclusion being reached in a future case. 
1. In these proceedings, the Court is asked to determine the legal questions of (a) whether the oaths taken by Mr. Nathan Law Kwung Chung (“Mr. Law”), Mr. Leung Kwok Hung (“Mr. Leung”), Ms. Lau Siu Lai (“Ms. Lau”), and Mr. Yiu Chung Yim (“Mr. Yiu”) on 12 October 2016 were valid in law and, (b) whether they should be regarded in law as having declined or neglected to take the oaths. Mr. Law, Mr. Leung, Ms. Lau, and Mr. Yiu are collectively referred to as the “Defendants”. 2. The Defendants are members-elect for the LegCo term starting from 2016. On 12 October 2016, they proceeded to take the LegCo Oath before the Clerk to the LegCo (“the Clerk”). The Clerk administered the oaths taken by Mr. Law, Mr. Leung and Ms. Lau but declined the jurisdiction to administer the oath-taking by Mr. Yiu on the ground that Mr. Yiu had altered the form of the oath (“the Clerk’s Decision”). 3. On 18 October 2016, the President of the LegCo (“the President”) ruled that the oath taken by Mr. Law was valid but the respective oaths taken by Ms. Lau and Mr. Yiu were not. However, the President allowed Ms. Lau and Mr. Yiu to retake their oaths (“the President’s Rulings”). Ms. Lau and Mr. Yiu retook the oaths on 2 November and 19 October 2016 respectively, and the President regarded their retaken oaths valid. 4. The Chief Executive (“CE”) and the Secretary for Justice (“SJ”) (collectively “the Plaintiffs”) sought (among others) (a) orders to quash the Clerk’s Decision and the President’s Rulings, and (b) declarations that the oath taken by each of the Defendants was invalid, that each of the Defendants has been disqualified from assuming or entering the Office of a LegCo Member (“the Office”). 5. On a proper construction of Article 104 (“BL104”) of the Basic Law (together with its Interpretation issued by the National People’s Congress Standing Committee on 7 November 2016 (“the Interpretation”)), the provisions in the Oaths and Declarations Ordinance (“ODO”) and as derived from the relevant case law, the Court identifies the following principles relating to the legal requirements for taking the LegCo Oath. 6. First, it is a constitutional and mandatory requirement that a member elect of the LegCo must properly and validly take the LegCo Oath both in form and in substance as required by the law before he could assume the Office. 7. Second, taking the LegCo Oath in form and in substance means, in law, that the oath taker must: (1) take the LegCo Oath in exactly the same form and content as prescribed under Schedule 2 of ODO (“the Exact Form and Content Requirement”); (2) do it solemnly and sincerely (“the Solemnity Requirement”); and (3) sincerely believe in and strictly abide by the oath (“the Substantive Belief Requirement”). 8. Third, under the Exact Form and Content Requirement, the oath taker must accurately and completely read out the oath as prescribed, and must not read out words which do not accord with the wording of the prescribed oath. Additions of other worded messages in the oath would be regarded in law as altering the form of the prescribed oath and thus in breach of the Exact Form and Content Requirement. 9. Fourth, under the Solemnity Requirement, the oath taker must take the oath in such a solemn manner which is consistent and commensurate with the occasion of taking the LegCo Oath. “Solemn” means dignified and formal. The manner should reflect and demonstrate the due respect consistent with the utmost constitutional importance of the oath taking procedure and support the serious and important commitment of the oath taker to bind himself to the pledges in the oath. 10. Fifth, under the Substantive Belief Requirement, the oath taker in taking the oath must at the time of the oath also faithfully and genuinely believe and commit himself or herself to uphold and abide by the obligations in the LegCo Oath. 11. Sixth, an oath taker who seeks to alter the form, the manner and the substance of the oath when taking it will offend Art. 104 of BL, and the oath so purportedly taken will be unlawful and of no effect. He will be regarded as declining and neglecting to take the oath. A LegCo member-elect who declines or neglects to take the oath would be disqualify automatically as a matter of law from assuming or entering into the Office. 12. Seventh, the Court is the final arbiter in determining whether an oath taker’s oath is compliant with the legal requirements. 13. Eight, the Court adopts an objective test in assessing such compliance: (i) In an objective assessment, the Court will look at the conducts, manner and words adopted by an oath taker in taking the LegCo Oath with a view to deciding what meaning those conducts, manner and words convey to a reasonable person. The oath taker’s subjective intention or thinking is irrelevant. (ii) In the objective assessment, the oath taker would be regarded in law to have declined or neglected to take the oath if (a) he objectively intended to adopt the particular manner, conducts or words in taking the oath, and (b) the particular manner, conducts or words objectively viewed do not comply with any of the oath taking legal requirements. It is not necessary element to find that the oath taker objectively intended to flout the law. Mr. Law 14. It is not disputed that, right before reading out the oath, Mr. Law made an Opening Statement “誓詞，英文係‘Affirmation’，佢拉丁文原意係使其更堅定更堅強。宣誓就係一個莊嚴嘅儀式，要我地向香港人承諾未來要知行合一，捍衛香港人嘅權利。但今日呢個神聖嘅儀式，已經淪為政權嘅工具，強行令民意代表屈服喺制度同埋極權之下。You can chain me, you can torture me, you can even destroy this body, but you will never imprison my mind. 我今日要完成必要嘅程序，但係唔代表我會屈服喺極權之下。香港市民永遠都係我地服務同埋團結嘅對象，我係絕對唔會效忠於殘殺人民嘅政權，我一定會堅持原則，用良知守護香港。希望在於人民，改變始於抗爭。”[1]. 15. Further, he adopted a distinct rising tone whenever he spoke the word “國” in reading the phrase “中華人民共和國香港特別行政區” of the LegCo Oath. Right after reading out the oath, he made a closing statement “權力歸於人民，暴政必亡，民主自決，抗爭到底。” 16. The Plaintiffs submit that, objectively assessed the above way in which he took the oath, Mr. Law did not comply with the legal requirements to faithfully or truthfully believe and commit himself to upholding and abiding the obligations set out in the LegCo Oath. 17. Applying the legal principles to the above indisputable objective facts of this case, the Court agrees with the Plaintiffs’ submissions. (a) Viewed objectively, by the Opening Statement, Mr. Law manifested a reasonable person the message that (i) the requirement to take the LegCo Oath was something that Mr. Law as the elected representative was “forced” to do under the system and a totalitarian authority, and (ii) the requirement to take the LegCo Oath was only a political tool employed by the PRC and the HKSAR to force him to pledge allegiance to the HKSAR of the PRC and the uphold the BL. (b) By adopting a rising intonation in pronouncing the word “國＂in the phase “the HKSAR of the PRC” in the oath, and understood in the context of the Opening Statement, Mr. Law has objectively expressed a doubt on or disrespect of the status of the PRC as a legitimate sovereign of the HKSAR. (c) The Court and Court of Appeal have previously held in another case that doubting or refusing to recognize the legitimacy of the PRC as the sovereign of the HKSAR is inconsistent with and contrary to the swearing allegiance to the HKSAR and to uphold the BL. (d) For all these reasons, view objectively, Mr. Law did not manifest a genuine and truthful intention to commit himself to and abide by the obligations in the LegCo Oath when purportedly taking it. (e) Further, there is no dispute that Mr. Law intentionally made the Opening Statement and adopted the rising tone. In the premises, Mr. Law is regarded in law to have declined or neglected to take the LegCo Oath on 12 October 2016 when requested to do so. 18. Further, Mr. Law read the Opening Statement right before he read out the LegCo Oath, and the Closing Statement right after. Objectively viewed, Mr. Law intended to convey the worded messages in the opening and closing statements as part of the oath taking itself. The Court therefore also agrees with the Plaintiffs’ submissions that by making the Opening and Closing Statements in the way he did, Mr. Law failed to comply with the Exact Form and Content Requirement in taking the LegCo Oath. 19. Mr. Law has provided various subjective explanations in his affirmation explaining what he did in the oath taking process. These explanations are evidence or matters relating to Mr. Law’s subjective thought process, thinking and subjective meanings he sought to accord to his conducts. The Court do not regard them relevant to the objective test for determining the legal compliance of his oath taking. In any event, even if the court was to consider them, Mr. Law’ explanations are not borne out by and are clearly inconsistent with the clear and objective evidence adduced before the Court. They therefore could not have any bearing in the objective assessment to displace the objective meaning as found by the court. 20. Mr Law also says the way and manner he adopted to take the LegCo Oath is modelled upon the previous ways and manner in which past LegCo members had taken the oath, which had been accepted to be valid by the President or Clerk. He therefore did not have any intention to flout the legal requirements when taking the oath in such a way. As such, he should therefore not be held to have declined or neglected to take the oath. The Court rejects this submission in light of the legal principle set out at paragraph 13(ii) above. 21. In the premises, the Court finds it clear in law that objectively Mr. Law declined or neglected to take the LegCo Oath on 12 October 2016 and is disqualified from assuming or entering the Office since 12 October 2016. The Plaintiffs are granted the reliefs as they sought against Mr. Law. Mr. Leung 22. It is not disputed that, after the Clerk called Mr. Leung to take the oath, Mr. Leung wearing a black T-shirt with the words “公民抗命” walked up to the table by carrying an opened yellow umbrella (with many words written thereon, including “結束一黨專政”) in his right hand and a paper board showing “人大831決議” in his left hand and at the same time shouted a slogan in Cantonese. After he reached the table, he made a statement in Cantonese “雨傘運動！不屈不撓！公民抗命！無畏無懼！人民自主自決！無須中共批准！我要雙普選！梁振英下台！”[2]. He then read out the words of the LegCo Oath in a truncated manner. After he completed reading out the words, he shouted another slogan “撤銷人大831決議！我要雙普選！”;[3], put down the umbrella, tore a piece of paper with the words “人大831決議” into pieces, threw them away towards the ceiling and left where he had been standing. 23. The Clerk treated the oath taking as valid. did not say anything about Mr. Leung’s purported oath-taking. 24. Applying the legal principles to the objective facts of this case, the Court agrees with the Plaintiffs’ submissions that Mr Leung did not comply with the Solemnity Requirement. 25. The ceremony and procedure of oath taking serve only one purpose, which is for the oath taker to comply with the constitutional requirements by taking the oath in the form and substance as prescribed and required by the BL and ODO. 26. In Mr. Leung’s case, the holding of an opened umbrella, the chanting of slogans, and the tearing of paper with message on it are not related to the very purpose of the oath taking. Objectively to a reasonable person, these theatrical acts and conducts clearly go outside an objective reasonable range of the requisite dignity and respect that would commensurate with the constitutional importance and seriousness of the oath taking process. Objectively viewed, the acts and conducts of Mr. Leung in his taking of the LegCo Oath therefore did not satisfy the Solemnity Requirement. 27. Furthermore, the Court also holds that, given Mr Leung made the chanted slogans right before and after his reading of the oath, objectively viewed by a reasonable person, Mr. Leung sought to convey the additional worded messages in the chant as part of the oath taking itself. His oath taking therefore also failed the Exact Form and Content Requirement. 28. Mr. Leung has provided various explanations in his affirmation saying that he made those short statements in the oath taking process to express to his voter his political goals. He also does not advocate for the independence of Hong Kong and is in fact genuine in making his pledges in the oath. The Court does not regard these subjective explanations relating to his thought process, thinking and subjective meanings he sought to accord to his conductsas relevant to the objective assessment. In any event, even if the court was to consider them, these explanations do not impact on the court’s conclusion on the failure to comply with the Solemnity Requirement, and indeed support the objective view that Mr. Leung sought to incorporate and convey in the oath taking additional worded messages, thereby violating the Exact Form and Content Requirement. 29. For the legal principle set out at paragraph 13(ii) above, the Court also rejects Mr. Leung’s reliance on the past rulings of the President in accepting previous oath taking by Mr. Leung himself and other LegCo members to say that he had no intention to flout the legal requirements and therefore did not decline or neglect to take the oath. Similarly, the court does not accept that LegCo practices on what are acceptable members’ conducts in conducting LegCo proceedings and debates as the benchmark for measuring the requisite solemnity for oath taking, since they are of very different nature and for different purposes. 30. The Court concludes that, objectively, Mr. Leung declined or neglected to take the LegCo Oath when he was requested to do so on 12 October 2016. He should be disqualified from assuming the Office since and is not entitled to claim to act as a LegCo member. The Clerk’s Decision to accept Mr. Leung’s purported oath as valid was wrong in law and should be quashed. The Plaintiffs are granted reliefs as they sought against Mr. Leung. Ms. Lau 31. It is not disputed that, after having been requested to take the LegCo oath, but before her reading out the words of the oath, Ms. Lau made an opening Statement “本人劉小麗謹此承諾，本人由街頭進入議會，定必秉承雨傘運動命運自主精神，與香港人同行，連結議會內外，對抗極權。我們要活在真誠磊落之中，打破冷漠犬儒，在黑暗中尋找希望，共同開創民主自決之路。推倒高牆，自決自強。”[4]. Ms. Lau then read the words of the oath at slow pace with a clear pause lasting about 6 seconds between each word of the oath. It took about 10 minutes for Ms. Lau to complete reading out the entire context of the LegCo Oath in this manner. Ms. Lau then made a closing Statement “爭取全民退休保障，落實墟市政策，捍衛香港人生活尊嚴”,[5] right after she completed reading out the text. On 13 October 2016, Ms. Lau published on the Facebook an article explaining her conduct during the oath taking process. Ms. Lau also gave her explanations reported in an article published in Apple Daily on the same date. 32. On 18 October 2016, the President ruled that the oath purportedly taken by Ms. Lau was invalid. Notwithstanding the ruling, the President said he was prepared to allow Ms. Lau to retake the oath. 33. Applying the legal principles to the objective facts of this case, the Court agrees with the Plaintiffs’ submission that the conducts of Ms. Lau clearly show objectively that she did not genuinely and faithfully accept and bind and commit herself to the obligations pledged in the LegCo Oath. The way in which Ms. Lau read out the LegCo Oath by breaking up each of the words with an interval of 6 seconds objectively clearly show to a reasonable person that she did not intend to convey any meaning of the contents and pledges of the LegCo Oath. Hence, objectively, Ms. Lau did not intend to commit herself to the obligations under the LegCo Oath. This is indeed confirmed by her own admissions in the Facebook article and the Apple Daily article. Accordingly, Ms. Lau has failed to comply with the Substantive Belief Requirement. 34. The Court also finds that Ms. Lau has violated the Exact Form and Content Requirement. Given that she made the opening and closing statements right before and after the reading of the oath, objectively viewed, she intended to convey additional worded messages (as embodied in the statements) as part of the oath taking itself. 35. Ms. Lau has provided in her affirmation various subjective explanations to say that she wanted to use the slow-paced reading to underline to the public “the hypocrisy” of some unidentified LegCo members who “treated the oath as going through the motion” and to convey the message that “their fluent oaths are hypocritical”. 36. The Court reiterates that these subjective explanations relating to her thought process, thinking and subjective meanings she sought to accord to her conducts are irrelevant to the objective assessment and should not be taken into account. Further, the Court also refuses to treat them as the relevant background and context as they could not have been known to a reasonable person at the time of the oath taking. In any event, even if the court was to consider them, the explanations cannot be accepted to displace obvious and unequivocal objective meaning conveyed by the conduct of the slow-paced reading as found by the court. 37. It clear that Ms. Lau intended to take the LegCo Oath in a slow-paced manner. Accordingly, she has objectively declined or neglected to take the LegCo Oath. The oath purported taken by her was therefore unlawful and invalid. As a matter of law, she has since been disqualified from taking the Office. In the premises, the Clerk’s Decision and the President’s Ruling were wrong in law and should be quashed. The Plaintiffs are granted reliefs as they sought against Ms. Lau. Mr. Yiu 38. It is not disputed that when Mr. Yiu first purported to take the LegCo Oath on 12 October 2016, he inserted and read out the extra words “定當守護香港制度公義，爭取真普選，為香港可持續發展服務”[6] in the middle of the LegCo Oath. The Clerk then told Mr. Yiu that, since he had added extra words to the oath, the Clerk had no jurisdiction to administer the oath and requested Mr. Yiu to retake the oath in the prescribed form. In retaking the oath, Mr. Yiu again added the same extra words at the end of the oath. The Clerk then informed Mr. Yiu that the Clerk had no jurisdiction to administer the oath. Mr. Yiu then returned to the seat. 39. On 18 October 2016, the President ruled that the oath purportedly taken by Mr. Yiu was invalid but that he acceded to Mr. Yiu’s request for retaking the oath. 40. The court agrees with the Plaintiffs’ submissions that the oath taken by Mr. Yiu on 12 October 2016 violated the Exact Form and Content Requirement. 41. The Court finds that, objectively viewed, Mr. Yiu intended to add the extra words in the middle of the LegCo Oath in his first attempt to take the oath. The Court notes that, after reading out the extra words, Mr. Yiu had paused momentarily and then continued to read out the remaining words in the LegCo Oath. The Court takes the view that, given that the extra words constituted a complete sentence of 25 words, objectively the fact that Mr. Yiu read the entire sentence out in the middle of the oath and completed reading the rest is consistent with the position that he intended to read it that way. Alternatively, if it was a mistake in inserting the extra words, a reasonable person in Mr. Yiu’s position would have started the oath over again without continuing reading the remaining wordings of the oath. Mr. Yiu’s then decision to continue to read out the remaining words after inserting the extra words clearly demonstrates that at the latest by then, he intended to insert and read out the extra words in the way he did in his first attempt. Mr. Yiu therefore violated the Exact Form and Content Requirement already in his first attempt, and has so declined or neglected to take the LegCo Oath when requested to do so. 42. In any event, the Court has no hesitation in finding that Mr. Yiu’s second attempt was also invalid. In the second attempt, Mr. Yiu was warned by the Clerk that the oath taking would be invalid by inserting extra words. Mr. Yiu has nonetheless inserted the extra words at the end of the prescribed form of the LegCo Oath. He read out the extra words immediately, continuously and smoothly after reading out the last sentence of the prescribed text of the LegCo Oath. Viewed objectively, the extra words uttered by Mr. Yiu were intended to be understood as part and parcel of the oath. This is a breach of Exact Form and Content Requirement. As Mr. Yiu has intentionally read out the extra words in the way he did, he has declined or neglected to take the LegCo Oath. He should be disqualified from taking the Office after his second attempt. 43. Mr. Yiu says he did not decline to take the LegCo Oath. He explained that he had made a mistake in the first attempt, and in any event he was under the misunderstanding of the law that he could add words to the LegCo Oath anywhere as long as he did not alter the substance of the pledges in it. He said he never intended to flout the oath taking law. 44. The Court rejects these arguments because: (a) as stated in paragraph 13(ii) above, it is not a necessary element in the objective assessment to find an intention to flout the law; (b) Mr. Yiu’s subjective explanations relating to his thought process, thinking and subjective meanings he sought to accord to his conducts are irrelevant to the objective assessment, and (c) in any event, the explanations support the Court’s conclusion that Mr. Yiu has violated the Exact Form and Content Requirement as in his own case, he did intend to add the words to the LegCo Oath even though to the end of it. 45. In the premises, Mr. Yiu failed to comply with the Exact Form and Content Requirement in taking the LegCo Oath on 12 October 2016. Objectively, he has in law declined or neglected to take the LegCo Oath. The President was wrong to allow Mr. Yiu to retake the oath. The President’s Ruling should be quashed. The Plaintiffs are granted reliefs as sought against Mr. Yiu. Defendant’s Stay Application 46. On the last day of the hearing, the Defendants applied for a permanent stay or dismissal of these proceeding against them on the basis that they are an abuse of process as their commencement was allegedly motivated by political considerations or ulterior reasons that the Plaintiffs have failed to disclose. This is particularly so as the Defendants say there are other members-elect of the LegCo in this term who have taken the LegCo Oath in allegedly the same manner and ways as the Defendants, but the Plaintiffs have not explained why they did not also bring the disqualification proceedings against the others. 47. Having considered the parties’ written submissions subsequently filed, the Court dismissed the application for stay for the following reasons: (a) It is noted that the Government has issued public statements back in December 2016 explaining that the decision of taking out the proceedings was based on legal advice including the advice from independent counsel and no political consideration had been involved. (b) The Defendants says that the Government is “politically motivated” in only bringing the proceedings against the Defendants but not the others so as to disqualify so many pro‑democrats and other non-establishment members as would destroy their majority in the LegCo in Geographical Constituencies. The Defendants also submit that it is proper to infer in these circumstances that these proceedings were only brought against them in succumbing to undue political pressure. The court finds these allegations at best speculative and the conclusions are illogical since they could not logically explain why the Plaintiffs would have to be selective and only proceeded against the four defendants but not the others, which could generally also be regarded as “pro-democrats” or the non-establishment camp. (c) Further, the authorities emphasize that the law draws an important and clear distinction between the use of the process for obtaining judgment and the misuse of the process for predominant purpose other than for which the proceedings are designed. It is clear that the Plaintiffs intended to proceed against the Defendants to trial and to seek reliefs as claimed. Even if (which the Court does not accept) the disqualification achieves some extraneous purposes, this cannot constitute an abuse of process because the alleged purpose is to bring about a result for which the law provides in any event. (d) When all these are assessed a whole, the Defendants have failed to discharge the burden imposed in law to show that the commencement of these proceedings against them is an abuse of process by the Plaintiffs to achieve an ulterior or political motive. [1] English translation: Affirmation, English being ‘affirmation’, has a Latin meaning strengthening the affirmative. Taking the oath is a solemn ceremony, requiring us (the members-elect) to make a promise to Hong Kong people that we will keep our words and actions as one, to protect the rights of the Hong Kong people. However, this solemn ceremony has today been rendered a political tool used by those in power to forcefully subject elected representatives under the system and the authority. You can chain me, you can torture me, you can even destroy this body, but you will never imprison my mind. Today I must complete the required procedure, but this does not mean 1am subjugating myself under the totalitarian authority. Hong Kong citizens will always be those whom we serve and unite, I will absolutely not bear allegiance to a political administration which brutally kills its people, I will maintain my principles, and protect Hong Kong people with my conscience. Hope is in the people, change is in resistance. [2] English translation: Umbrella Movement! Indomitable! Civil Disobedience! Without Fear! Self-Autonomy and Self-Determination for People! No Approval from the Communist Party of China is Required! I Want Dual Universal Suffrage! Leung Chun Ying Step Down! [3] English translation: Revoke NPC 831Decision! I Want Dual Universal Suffrage! [4] English translation: I, Lau Siu Lai, hereby make this pledge, that I, having entered the Council from the streets, will certainly carry forth the spirit of self-determination of destiny in the Umbrella Movement, walk with the Hong Kong people, connect the inside and outside of the Council, to fight against totalitarianism. We must live in truth, break the indifference and cynicism, look for hope in the darkness, and blaze a trail to democratic self-determination together. Tear down the high wall [for] self-determination and self-reliance. [5] English translation: Fight for universal retirement protection, implement policy for bazaar and staunchly defend the dignity of Hong Kong people in their living. [6] Translated as: I will protect the justice system in Hong Kong, fight for true democracy, and serve Hong Kong for its continuing development. 
1. These appeals concerned the protection conferred by Articles 6 and 105 of the Basic Law (“BL6 and BL105”) on private property rights in connection with planning restrictions laid down by the Town Planning Board (“TPB”). 2. The appellants, who are property owners and developers, had succeeded in having the TPB’s decisions quashed on traditional judicial review grounds in the lower courts, but unsuccessfully contended that the planning restrictions represented a disproportionate and therefore unconstitutional infringement of their property rights. 3. The Court of Appeal made orders for remitter to direct the TPB to reconsider its decisions in accordance with the Court of Appeal’s judgment, which included its conclusion that the planning restrictions did not engage the constitutional rights in BL6 and BL105. The appellants challenged that conclusion in these appeals and sought a direction that the TPB consider whether the restrictions were unconstitutional. 4. The first question for the Court was whether BL6 and BL105 are engaged in relation to planning restrictions imposed by the TPB on the use of land. 5. Both Articles stipulate that the obligation to protect private property rights is to be discharged “in accordance with law”. Such a phrase does not serve to qualify or limit the protection conferred but provides an additional layer of legal certainty. 6. Even though the statutory power to impose planning restrictions existed prior to the appellants’ acquisition of the sites, this did not mean that the new and more intrusive constraints imposed by the TPB after the land’s acquisition could be disregarded as mere incidents of ownership so as to exclude the protection of BL6 and BL105. The Court thus concluded that both Articles were plainly engaged. 7. BL6 and BL105 are not absolute rights. It is for the Court to determine the permissible extent of any restrictions that limit such rights by a process referred to as a proportionality analysis. In addition to the existing three-step inquiry taken in a proportionality analysis, a fourth step should be added which involves asking whether a reasonable balance has been struck between the societal benefits of the encroachment and the inroads made into the constitutionally protected rights of the individual, asking in particular whether pursuit of the societal interest results in an unacceptably harsh burden on the individual. 8. The first two steps of the proportionality analysis were satisfied as it was assumed that the planning restrictions did pursue a legitimate aim and that they were rationally connected thereto. It was at the third stage of the inquiry, assessing the permissible extent of the incursion into the protected right, that two main standards have been applied: (i) whether the intruding measure is “no more than necessary” to achieve the legitimate aim (for which standard the appellants and interveners argued), and (ii) whether the encroaching measure is “manifestly without reasonable foundation” (for which standard the respondents argued). 9. The difference between the standards is one of degree and both standards are on a spectrum of reasonableness. The “manifest” standard has been used in cases where the Court recognizes that the originator of the impugned measure is better placed to assess the appropriate means to advance the legitimate aim espoused and is afforded a wide margin of discretion. It has been applied in cases involving implementation of political, social or economic policies but is not confined to such cases. 10. Having considered jurisprudence from the European Court of Human Rights, the Court concluded that the application of either standard would depend on the circumstances of the underlying case and the factual bases claimed for the incursion. The location of the standard in the spectrum of reasonableness depends on many factors relating principally to the significance and degree of interference with the right, the identity of the decision-maker, and the nature and features of the encroaching measure relevant to setting the margin of discretion. 11. In general, where the TPB reaches decisions which are not flawed on traditional judicial review grounds, any planning restrictions should be subject to review applying the “manifestly without reasonable foundation” test. It is highly unlikely that decisions arrived at lawfully and in conformity with principles of traditional review would be susceptible to constitutional review unless the incursions are exceptionally unreasonable. 12. The views of the Court on BL6 and BL105 differed from those of the Court of Appeal. It was ordered that the order of the Court of Appeal remitting the matter to the TPB for reconsideration of its decisions would remain, but the order for such reconsideration to be in accordance with the Court of Appeal’s views on the two Articles would be deleted. 
1. The current general practice in sentencing is that an applicant is afforded a full one-third discount from the starting point for sentence, if a plea of guilty is tendered up to and until the first day of trial. The judgment reviews that practice and provides for a revised practice. 2. In the revised practice, the following principles remain the same for all cases: (i) the court will retain an overriding discretion in sentencing and (ii) the court’s practice of not having regard to the strength of the prosecution case in determining the discount to be afforded for a plea of guilty. 3. The revised practice only applies to a defendant who in future will reach the stages in criminal proceedings for which revised discounts are identified (e.g. it applies to a defendant who is currently in the magistracy but will be committed or transferred for trial in the future). Defendants whose trial dates have already been fixed will benefit from the previous practice. 4. The effect of this judgment is to reflect the principle that the utilitarian value of a guilty plea is greater the earlier it is given. Pleas on first day of trial and thereafter (applicable at all levels of court) 5. For pleas of guilty made on the first day of trial, the appropriate discount is 20% from the starting point for sentence. 6. For pleas of guilty made during the trial itself (after the first day of trial), the discount would usually be less than 20%. The actual discount will reflect the circumstances in which the plea was tendered. The Court of First Instance 7. For cases to be heard in the Court of First Instance: the stage to afford a full one-third discount from the starting point is at the committal (i.e. the defendant should then be committed for sentence to the Court of First Instance). 8. If the indication to plead guilty is made after committal, up to the fixing of trial dates by the Listing Judge, the appropriate discount is 25% from the starting point. 9. After trial dates have been fixed, but before the first day of trial, the appropriate discount for an indication of plea of guilty lies between 25% and 20% from the starting point. The judge will have regard to the time at which the indication was given and all other relevant circumstances. The District Court 10. For cases transferred to the District Court: a full one-third discount from the starting point is to be afforded to defendants who indicate a guilty plea on the first or a subsequent Plea Day. 11. Defendants who indicate a plea of guilty between the fixing of trial dates at the Plea Day and the first day of trial are to be afforded discount of between 25% and 20% from the starting point. The judge will have regard to the time at which the indication was given and all other relevant circumstances. The Magistracy 12. For cases in the Magistracies, the opportunity to secure a one-third discount from the starting point occurs when the defendant is asked to tender a plea to the charge; if trial dates are fixed that opportunity is lost. 13. If the defendant indicates before the first day of trial that he wishes to plead guilty, the discount to be afforded lies between 25% and 20% of the starting point for sentence. The magistrate will have regard to the time at which the indication was given and all other relevant circumstances. 
1. This appeal arises from a mortgage action brought by the Respondent (“Lender”) against the Appellant (“Borrower”). The Judge dismissed the action on the ground that both the legal charge and the loan it secured were unenforceable because the parties had agreed an interest rate exceeding 60% per year, contrary to section 24 of the Money Lenders Ordinance (Cap 163). The Court of Appeal reversed the decision of the Judge and ordered enforcement of the charge and payment of the loan. The Borrower was granted leave to appeal to this Court. 2. The loan of around HK$40 million was advanced by the Lender to the Borrower in February 2015. Upon expiry of the original three-month loan period, the parties agreed to four successive extensions, the last of which allowed the period of extension to continue indefinitely. It is undisputed that up to and including the fourth extension, the interest rates charged by the Lender fell below 60% per year. In October 2016, the parties entered into a final agreement which retrospectively revised the interest rate over the whole period of extension. The revised interest rate also did not exceed 60% per year. 3. The unlawful interest rate forming the basis of the decision of the Judge was said to have been charged by the Lender under an agreement made by the parties between the conclusion of the fourth extension and the final agreement. That agreement was found to have existed by a process of inference. The evidence upon which the Judge made such an inference was a demand letter sent by the Lender’s solicitors to the Borrower in June 2016. That letter first set out, according to the terms of the four extensions, the Borrower’s total indebtedness at the time (principal and unpaid interest included), which was around HK$60 million. It went on to say that further interest “continued to accrue on the sum”. The Judge inferred from that letter that there must have been an agreement whereby interest had been charged on the said HK$60 million as from June 2016 which, when applied to a loan of some HK$40 million, produced an interest rate that was higher than the fourth extension rate and exceeded 60% per year. 4. The Judge took a poor view of the Lender’s failure to disclose its retained copy of the 2016 demand letter at an earlier stage of the proceedings, considering this as an attempt by the Lender to conceal the letter in order not to reveal that there had been an agreement charging an unlawful interest rate. 5. The Court of Appeal accepted that such an inferred agreement existed, and agreed with the Judge that there was a rule of law that whenever a loan was extended a new loan capitalising the unpaid interest arose. But the Court of Appeal considered the Judge had failed to apply this rule to the inferred agreement when he calculated the interest rate with reference to the original loan amount of some HK$40 million, instead of the deemed new loan amount of some HK$60 million. Applying the higher figure, the interest rate charged under the inferred agreement fell below 60% per year. Thus, no issue of unlawful interest rate arose and the Court of Appeal decided in favour of the Lender on the basis of the final agreement. Existence of the inferred agreement 6. This Court held there was no basis upon which the Judge could properly draw an inference that an agreement charging unlawful interest rate existed. The 2016 demand letter did not support such an inference. The use of the word “continued” in the letter must mean that interest continued to accrue at the fourth extension rate, and the words “on the sum” simply meant that such accruing interest would be added to the Borrower’s total indebtedness which happened to stand at some HK$60 million in June 2016. Neither the demand letter itself nor the parties in the proceedings alleged there was any agreement as inferred by the Judge. There was nothing to support the finding that the Lender attempted to conceal any such agreement, particularly given that the original of the 2016 demand letter would have been in the possession of the Borrower, making any such attempt a futile exercise. Effect of extension of loan 7. Although the point did not arise given the conclusion on the existence of the inferred agreement, this Court considered there was no rule of law that whenever parties agreed to vary the terms of a loan by extending its loan period or changing the interest rate, that must count as entering into a new loan. The law would simply give effect to what, as a matter of construction, appeared to have been the intention of the parties as shown by the language they had used. Disposition 8. Accordingly, this Court unanimously dismissed the appeal. The orders of the Court of Appeal were affirmed, although this Court departed from the Court of Appeal’s reasoning in reaching the same conclusion. 
The Facts 1. ENM Holdings Limited (“ENM”) operates a private members’ club, the Hilltop Club (the “Club”), on top of a hill in Tsuen Wan. It also owns the land on which the Club is situated (the “Club premises”). 2. The Club is surrounded by Government land. From public roads, the only way for vehicles to go in and out of the Club is through Hilltop Road (the “Road”), which is also on Government land. 3. The Road was in existence when ENM was granted the Club premises by the Government in 1976. It is not known who built the Road. 4. The Road was built by the “cutting and tipping method”. Part of the natural terrain was cut to create a flat surface. The cutting is then used to build a slope and an embankment downhill, widening the flat surface, which make up the Road. The Dangerous Hillside Orders 5. Features 33 and 156 are man-made slopes (the “Features”) which support the Road. They lie outside of the Road, and became dangerous and in need of repair. 6. The Building Authority (“BA”) came to a view that ENM was responsible for repairing certain subdivisions of the Features: Features 33(1) and 156(1) (the “Slopes”). 7. BA therefore issued ENM with dangerous hillside orders (the “Orders”) under s.27A of the Buildings Ordinance, Cap.123 (the “Ordinance”) over the Slopes. The Orders require ENM to investigate the Slopes and submit proposals for remedial/preventive work for BA’s approval. 8. For the purposes of this Appeal, BA relies on Special Condition 31 (“SC31”) of the grant, which provides the legal basis of ENM’s ownership of the Club premises (the “Grant”), to establish ENM’s responsibility for the Slopes. It provides, “The grantee shall construct a paved way to the standards laid down in the Building (Private Streets and Access Roads) Regulations… over the [the Road] and shall uphold, maintain and repair such paved way and everything forming portion of or pertaining to it …, and the grantee shall be responsible for the whole as if he were absolute owner thereof…” The Courts Below 9. ENM (among other things) denied responsibility for the Slopes under SC31. The Appeal Tribunal (Buildings) (the “Tribunal”) held that SC31 only covers the Road itself, but not the Slopes. On BA’s judicial review of the Tribunal’s decision, the Court of First Instance (the “CFI”) came to an opposite view, holding that “pertaining to [the Road]” should be read widely to include the Slopes, even if they lie outside Road. The Court of Appeal (“CA”) allowed ENM’s appeal on the construction of SC31. The BA now appeals the CA’s construction of SC31. The Parties’ Submissions 10. Before this Court, BA argued that, when the Grant was made in 1976, ENM and the Government must have proceeded under the false assumption that the Road had not been built. If ENM had to make the Slopes to build the Road, ENM would clearly be responsible for their maintenance. Since ENM is treated as if it had made the Slopes, it is responsible for them under SC31. 11. ENM replied that there is nothing to show that the Grant was made under this false assumption. Further, there was no awareness in 1976 that hillsides might attract onerous maintenance responsibilities. At the time slopes were not regulated; the Ordinance was only enacted four years later in 1980. The Court’s Analysis and Conclusions 12. SC31 has to be read in light of what ENM and the Government would have reasonably understood it to mean when they entered into the Grant in 1976. If an unusual or onerous duty was part of the Grant, it would have been spelled out in clear terms. 13. There is nothing to show that ENM and the Government assumed between themselves that there was no road. Instead, since the Road was already in existence, the words “shall construct a paved way to the standards laid down in the Building (Private Streets and Access Roads) Regulations” is apt to describe ENM’s duty to pave the existing road or upgrade it to the standard required under the regulation. 14. It follows that SC31 does not impose any maintenance duty on the Slopes, which were not built by ENM. The appeal is dismissed. 
1. This appeal concerns a claim by the Appellant for a success fee (“Transaction Fee”) in respect of a fundraising transaction entered into by the Respondent after the termination of a Financial Advisory Agreement supplemented by an Addendum (“FAA”). 2. The central question before this Court concerned the correct approach to contractual interpretation and the possible implication of terms in relation to contracts governing such payments. 3. The Respondent, pursuant to the FAA, engaged the Appellant to act as its financial adviser and sought advice and assistance on fundraising with a view to the Respondent expanding its business internationally. 4. The material provisions of the FAA stated that (1) the Appellant should provide a range of services to the Respondent during the period of its engagement, (2) the Appellant would be entitled to a Transaction Fee if the Respondent entered into a fundraising transaction and (3) the Appellant would in certain circumstances be protected by a so-called “tail-gunner clause” (“TGC”) so that the Appellant would be entitled to a Transaction Fee if a fundraising transaction were to take place within two years after the termination of the FAA. 5. In April 2009, the Appellant introduced Dentsply International Inc (“Dentsply”) to the Respondent as a prospective investor. After having a telephone conference, Dentsply decided not to invest in the Respondent. 6. In May 2010, after the FAA was terminated and without the Appellant’s participation, Dentsply approached the Respondent for business dealings. This eventually led to Dentsply’s investment in the Respondent (the “Investment”), and the parties announced the deal in December 2010. 7. In September 2011, the Appellant commenced an action against the Respondent for payment of a Transaction Fee pursuant to the TGC before the Court of First Instance (“CFI”). The CFI dismissed the Appellant’s claim, holding that the Appellant had failed to show that any work done by it was the effective cause of the Investment. The Appellant appealed to the Court of Appeal (“CA”) which dismissed the Appellant’s appeal, holding that the Appellant was not entitled to a Transaction Fee merely for having introduced a party to the Respondent without any involvement in the resultant transaction. 8. The Appellant argued before this Court that the TGC should be construed as requiring merely the introduction of a party as opposed to introduction of the ultimate transaction to entitle it to payment. The Appellant further contended that it should alternatively be entitled to a Transaction Fee by “shaping up” the Respondent to make it more attractive to potential investors. Both arguments were rejected by this Court. 9. The Court held that the purpose of the TGC was to guard against the Appellant being unfairly deprived of a Transaction Fee which it had substantially earned. 10. After interpreting the material provisions of the FAA, it held that it was not enough merely to introduce a third party, but the Appellant was also required to contribute to achieving the successful completion of an actual fundraising transaction in order to earn a Transaction Fee. Therefore, it was insufficient for the Appellant to have merely introduced the Respondent to Dentsply without having played any part in relation to achievement of the eventual transaction. Disposition 11. Accordingly, the Court unanimously dismissed the appeal. 
1. In 2012, the Appellant arrived at the Hong Kong International Airport from Kuala Lumpur. During inspection, heroin was discovered in the lining of her suitcase. 2. At trial in 2014, by a majority of 5:2, the jury found the Appellant guilty of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (Cap 134). The Court of Appeal dismissed her appeal but in 2017, the Court of Final Appeal quashed her conviction and ordered a retrial. 3. At the second trial in 2017, the Appellant was convicted by a second jury on a 6:1 majority and sentenced to imprisonment for 21 years. She succeeded on appeal to the Court of Appeal, which quashed her conviction and ordered a second retrial. The Court of Appeal made no reference to the evidence before it relating to the Appellant’s psychiatric condition, noting only that a third trial and being remanded in custody “might be causing her frustration”. 4. At issue before this Court was whether the Court of Appeal had been wrong in ordering a second retrial, by not sufficiently taking into account the undue hardship and unfairness allegedly occasioned to the Appellant by the second retrial order, particularly given her psychiatric condition. 5. The Court held that the Court of Appeal should have taken into account the Appellant’s mental condition in determining whether to order a second retrial. 6. In deciding not to order a second retrial, the Court considered the following factors. 7. The Appellant had been in custody for 7½ years, from her arrest to the hearing of this appeal, through no fault of her own. If a third trial took place later this year, she would have been in custody for 8 years without her guilt having been established. If she were convicted and sentenced for 21 years again, taking into account the 1/3 allowance for good behaviour, she would already have been in custody for 8 years out of 14, more than half of a long sentence. 8. Psychiatric evidence before this Court put into perspective this lengthy period of custody. The medical experts agreed that the Appellant suffered from a moderate to severe Major Depressive Disorder with psychotic symptoms. She was significantly stressed when reminded of the ongoing court proceedings. 9. Although the offence in question was serious, the strength of the prosecution’s case was open to question. In the circumstances, it was clearly in the interests of justice not to order a second retrial for the Appellant. DISPOSITION: 10. The Court unanimously allowed the appeal, quashed the order for a retrial, and ordered the release of the Appellant. 
1. The 5 defendants (“D1 to D5”) herein were the executives of the Executive Council of the General Union of the Hong Kong Speech Therapists [香港言語治療師總工會] (“GUHKST”). They face one charge of conspiracy to print, publish, distribute, display and/or reproduce seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance, Cap 200 (“the Charge”). 2. It is alleged by the prosecution that D1 to D5 among themselves and together with Wong Hoi-ching and other persons had embarked upon an agreement to cause the three picture books particularized in the Charge, i.e. “羊村守衛者” (“Book 1”), “羊村十二勇士” (“Book 2”) and “羊村清道夫” (“Book 3”), to be printed, published, distributed, displayed and/or reproduced in the name of GUHKST from 4 June 2020 (ie the day when Book 1 was published) until 22 July 2021 when they were arrested, and that these three books had the seditious intention as particularized in the Charge. 3. All defendants argue that the offence charged is unconstitutional on the ground that it is inconsistent with their freedom of expression, speech and publication, and/or freedom to engage in literary and artistic creation and other cultural activities guaranteed by the Basic Law (“BL”), and the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”), and that the offence charged should therefore be struck down outright, or it should be given a remedial interpretation in the way suggested by counsel for some defendants to render it constitutionally compliant. It is also argued that the Charge should not cover “Central Authorities”, and that the facts proved by the prosecution are insufficient to prove the Charge beyond reasonable doubt against each of the defendants. 4. Nearly the whole of the prosecution evidence is admitted by the defendants. There is no submission of no case to answer, and the defendants elect not to give evidence and call no witnesses. On the other hand, certain facts have been agreed between D4 and the prosecution. 5. The following issues fall for consideration: - (1) Does the offence charged cover the “Central Authorities”? (2) What are the elements of the offence, in particular whether it requires proof of “the common law intention”? (3) Is the offence charged unconstitutional? (4) Were the three picture books or any of them seditious publication? (5) Was there the alleged conspiracy, and if so, did D1 to D5 or any of them take part in it? (6) Is prosecution of the offence time-barred? 6. On Issue (1), the court rules that the Central Authorities have been properly included in the Charge against the defendants. 7. Section 9(1)(a) of the Crimes Ordinance shall now read: “A seditious intention is an intention to bring into hatred or contempt or to excite disaffection against the Central Authorities, or against the Government of Hong Kong”. The other parts of the written section 9(1)(a) are to be disregarded as the types of colonial governments referred to therein do not exist now. 8. Sections 9(1)(c), 9(1)(f) and 9(1)(g) shall remain unchanged, but section 9(1)(d) shall read: “A seditious intention is an intention to raise discontent or disaffection amongst inhabitants of Hong Kong.” 9. On Issue (2), from the plain reading of the statutory provision in question, a person will not commit an offence contrary to section 10(1)(c) of the Crimes Ordinance unless: (a) he prints, publishes, sells, offers for sale, distributes, displays or reproduces any publication (“the prescribed act”); (b) the publication is having a seditious intention; and (c) at the time when he performs the prescribed act, (i) he intends to perform the prescribed act, (ii) he knows that the publication is having a seditious intention, and (iii) he has a seditious intention. 10. The court holds that “seditious intention” as defined in section 9 of the Crimes Ordinance has never included “an intention to incite persons to violence or to create public disturbance or disorder for the purpose of disturbing constituted authority” formulated by case law in various common law jurisdiction (“the Common Law Intention”) as its necessary ingredient, and that there is no basis today to interpret seditious intention to include the Common Law Intention. 11. As to Issue (3), since this prosecution is based on what the defendants had allegedly said and published, it raises the question whether the offence charged has infringed upon their rights to freedoms of expression, of speech, of publication, and of literary and artistic creation and other cultural activities. 12. It is accepted by all parties that these freedoms are fundamental rights guaranteed and protected by Articles 27 and 34 of the BL, Article 19 of the International Covenant on Civil and Political Right (“ICCPR”) which is implemented by Article 39 of the BL, as well as Article 16 of the HKBOR. It is also accepted that these are not absolute rights and may be subject to restrictions. However, such restrictions must be “prescribed by law” and must not contravene the provisions of ICCPR. 13. In its deliberation, the court must give a generous interpretation to the fundamental rights guaranteed by the constitution, and that any restriction must be narrowly interpreted. In the context of this particular case, it is particularly important to remember that: “This freedom [of expression] includes the freedom to express ideas which the majority may find disagreeable or offensive and the freedom to criticize governmental institutions and the conduct of public officials.” 14. After due consideration, the court is satisfied that despite the use of words like “hatred”, “contempt”, “disaffection”, and “discontent” in section 9 of the Crimes Ordinance, these concepts are not so vague or imprecise. The court is of the view that the degree of legal certainty satisfies the “prescribed by law” requirement stipulated in Article 19 of the ICCPR and Article 16 of HKBOR. 15. Applying the 4-step analysis as set out in Hysan Development Co Ltd v Town Planning Board, (a) The court is satisfied that criminalization of seditious acts clearly pursues a legitimate aim. (b) It is beyond argument that criminalization of seditious acts by sections 9 and 10 of the Crimes Ordinance is rationally connected with that legitimate aim. (c) The court finds that the restrictions imposed by sections 9 and 10 of the Crimes Ordinance on the right to freedoms of expression and publication are necessary for the protection of national security and protection of public order (ordre public), and they do not impose restriction more than necessary to limit the right to freedom of expression, publication, etc for the protection of national security and of public order (ordre public). (d) There is also nothing to suggest that a reasonable balance had not been struck between the restrictions and the societal benefits obtained as a result. 16. The court therefore rules that the constitutional challenge fails. 17. On Issue (4), upon the court’s analysis, each of Books 1, 2 and 3 is a publication having seditious intention. The seditious intention stems not merely from the words, but from the words with the proscribed effects intended to result in the mind of children as stated in section 9(1)(a), (c), (d), (f) and (g). 18. As to Issue (5), there is no dispute that Book 1, Book 2 and Book 3 are the publications of GUHKST. This per se provides direct evidence that all executives of the Executive Council of GUHKST had participated in this agreement to print, publish, distribute, display and reproduce the three picture books unless there is evidence that may prevent the inference to be drawn. As to who were the executives at the material times, the evidence has proved beyond reasonable doubt that D1 to D5 and Wong Hoi-ching were the executives of the 1st Executive Council of GUHKST from 12 December 2019 until the date of arrest on 22 July 2021. 19. In addition, there are other evidence linking each of the defendants to the agreement for the printing, publication, distribution, display, etc of Books 1, 2 and 3. The court finds that each one of them had a seditious intention to publish the books. 20. Based on the evidence, the court finds that it has been proved beyond reasonable doubt, from the roles played by each of the defendants, each of them had between 4 June 2020 and 22 July 2021 entered into an agreement amongst themselves and with Wong Hoi-ching and others to print, publish, distribute, display, and/or reproduce Books 1, 2 and 3, knowing that the books printed or to be printed are publications with seditious intention. The court finds that they intended to have this agreement carried out, and in the course of carrying out the agreement, Books 1, 2 and 3 had already been published, and Book 4 was being prepared. 21. As to Issue (6), it is beyond any shadow of doubt that the conspiracy entered into between the defendants had not come to an end before their arrest, and that the conspiracy was not just for printing of the books, but also for publishing, distributing and displaying the books as well. 22. As there is no time bar, each of D1 to D5 is convicted as charged. 
1. The appellant was convicted in the District Court on three counts of money laundering, contrary to section 25(1) of the Organized and Serious Crimes Ordinance, Cap 455 (“OSCO”). 2. It was alleged by the prosecution that the appellant had reasonable grounds to believe that the property he dealt with, directly or indirectly represented the proceeds of an indictable offence. 3. The appellant had set up two companies in Hong Kong, which opened Hong Kong dollar and foreign currency accounts. At trial, he claimed that through these accounts he ran an “underground” banking operation to overcome exchange control restrictions, and that he had performed “gatekeeping” precautions. 4. The dismissal of the appellant’s appeal by the Court of Appeal led to the appeal before the Court. 5. The key issues on appeal are: (1) where the relevant property had emanated from overseas activities, by reason of section 25(4) of OSCO, whether the prosecution had to prove that an accused knew of the nature of such activities and that such conduct constituted an indictable offence under Hong Kong law (“The s 25(4) point”); (2) where the relevant property is a chose in action (such as a deposit of money into a bank account), whether a global charge aggregating a number of different items would offend the rule against duplicity (“The duplicity issue”); and (3) whether the trial judge wrongly regarded the facts as being sufficient to establish the elements of the offence (“Factual issues”). The s 25(4) point 6. OSCO neither required proof of knowledge of the actual conduct that produced the relevant property, nor that such identified conduct would be illegal under Hong Kong law. It was sufficient for the prosecution to prove that an accused had reasonable grounds to believe that the property dealt with, directly or indirectly represented the proceeds of an indictable offence. The duplicity issue 7. There were numerous deposits followed by withdrawals in the accounts used by the appellant in his underground banking operation, all within a short period of time. Also given that no complaint had been made at or before trial based on duplicity, the three charges were unobjectionable. Factual issues 8. There was no merit in the complaint regarding the factual issues. The trial judge had carefully considered the underground banking operations and looked at the matter from the appellant’s point of view, particularly as to whether he performed “gatekeeping” precautions. The charges were established on the facts. Conclusion 9. Accordingly, the Court dismissed the appeal. 
1. In 2007, the 1st Appellant entered into a share purchase agreement (“the SPA”) with the Respondent under which it agreed to sell to the Respondent 370 million shares in a Hong Kong Company called Hans Energy Company Limited (“Hans”), and the 2nd Appellant guaranteed the 1st Appellant’s obligations under the SPA. The SPA included a put option under which, on the occurrence of certain specified events, the Respondent would be entitled to sell the shares back to the 1st Appellant. In 2009, the Respondent purported to exercise that option. 2. The appeal raised the issue of whether the put option was validly exercised. It concerned the construction of the put option clause in the SPA, in particular, whether the dilatoriness of the 1st Appellant in procuring or obtaining the necessary approval from the National Development and Reform Commission of the PRC (“NDRC”) in relation to the change in shareholding in a company formed specifically to carry out a petro-chemical dock construction project (the project being an attraction in the SPA to the Respondent) amounted to the occurrence of an “event”, which was “the failure [to obtain the necessary approval of NDRC]... at the fault of, or arising from an act or omission of [the 1st Appellant]”, thereby triggering the exercise of the put option. 3. At the Court of First Instance, it was held that the put option had been validly exercised, and the Appellants were ordered to pay to the Respondent the put option price, together with interest. The Appellants’ appeal was dismissed by the Court of Appeal. The Appellants appealed to the Court of Final Appeal. 4. The Court unanimously allowed the Appellants’ appeal. In relation to “event”, the Court held that giving the word its natural meaning, it is something which happens at a specific moment in time. A helpful definition was given by Lord Mustill in Axa Reinsurance (UK) PLC v Field, that “event” is something which happens at a particular time, at a particular place, in a particular way, as distinguished from “cause”, which can be a continuing state of affairs and can be the absence of something happening. Therefore, in order for there to be a triggering event for the exercise of put option in the SPA, it had to be possible to identify the date on which the event occurred. 5. In relation to “failure”, the Court held that while the continuous omission of the 1st Appellant to obtain approval could, if taken out of context, properly be described as a “failure” to obtain approval, it could not properly be described as an “event” and could not properly bear the meaning of a continuous state of affairs in the context of the put option clause in the SPA. The Respondent had been unable to point to a moment in time when the “failure” (i.e. the refusal by the NDRC to grant approval) occurred, therefore the continuing omission to obtain approval was incapable of acting as a trigger. Both in theory and in practice, it was impossible to identify the moment when the continuous omission to obtain approval had become attributable to the fault, or an act or omission of the 1st Appellant. 6. The Court came to the conclusion that the put option was never triggered, as the “event” described as “failure to obtain the necessary approval of NDRC” in the put option clause in the SPA was a refusal by NDRC to give that approval, and such event never occurred. On the contrary, NDRC finally gave the necessary approval, albeit belatedly. 
1. The Appellant was convicted after trial before a jury of the offence of trafficking in 1 kilogram of a mixture containing 0.86 kilogram of cocaine. 2. The Prosecution’s (i.e. the Respondent’s) case at trial was that the Appellant was arrested by a group of policemen, after a tip-off, at about 5:55 pm on 15 July 2011 in the corridor of King Wah House, Shan King Estate, Tuen Mun. A police officer searched the Appellant on the spot, and found that the Appellant was carrying a brick of suspected drugs. The police officer then arrested the Appellant for trafficking in a dangerous drug, and cautioned him. The Appellant replied “Ah Sir, I am caught. I carried the drugs for somebody else.” This oral statement was the relevant statement to be considered in the present appeal, as it was a confession that the Appellant knew that he was carrying a dangerous drug. Subsequently, the police made a post-recorded statement, and conducted a video-recorded interview. 3. The Defendant’s (i.e. the Appellant’s) case at trial was that as the Appellant was walking in the corridor, at least four to five people rushed towards him, and twisted his arms. At the same time, one of the policemen pressed his head down, while another took out a white paper bag from his shoulder bag. The Appellant was then handcuffed, but he was not cautioned, nor was he formally arrested. He was made to stand against a wall for about 9 minutes. The Appellant denied he made the oral statement. 4. At trial, a voir dire (i.e. a preliminary hearing) was held. The trial judge ruled that the post-recorded statement and the video-recorded interview were not admissible as evidence to be put before the jury, as he was not satisfied that they were made voluntarily. While the voluntariness of the oral statement did not appear to have been dealt with in the voir dire, this was of no consequence to the issues which arose in the present appeal, because it was in issue before the jury. 5. The trial judge directed the jury to consider whether the Appellant had in fact made the oral statement. He did not give any direction as to the voluntariness of the oral statement. 6. The Appellant was convicted. The Court of Appeal upheld the conviction. The Appellant appealed to the Court of Final Appeal. 7. Two issues arose before the Court. First, in what circumstances should a direction be given to a jury about the voluntariness of a confession, notwithstanding the fact that an accused denies making the confession. Secondly, if such a direction is required, whether the trial judge must direct the jury that if they conclude that a confession may have been obtained as a result of oppression, they are required to disregard it. 8. As to the first issue, the Court held that where there is a possibility that a jury may conclude that (1) a confession was made by the defendant, (2) the confession was true, but (3) the confession was, or may have been, induced by oppression, the trial judge should direct the jury on the voluntariness of the statement. This is so even where the defendant denies making the confession. 9. As to the second issue, the Court held that, in cases where the three conditions above are satisfied, the trial judge must direct the jury that if they conclude that a confession may have been obtained as a result of oppression, they must disregard it. This is known as the Mushtaq direction. 10. The defendant’s right to silence is the main rationale for the Mushtaq direction. 11. In the present case, even though the Appellant denied he made the oral statement, a Mushtaq direction should have been, but was not, given. 12. The Court allowed the appeal and quashed the Appellant’s conviction. A re-trial was ordered. 
This appeal concerns the ascertainment of the Government rent payable by Best Origin Limited (“Best Origin”) in 1997-1998 under the Government lease of Inland Lot No.8874 on Electric Road. As at the valuation date, the tenement was a development site undergoing the early phase of the development. Rents payable under Government leases of land in course of development or redevelopment are calculated by reference to its rateable value. Under the Rating Ordinance, a building site is not a rateable tenement and therefore does not attract a liability for rates. However, section 2 of the Government Rent (Assessment and Collection) Regulation changes this position by providing that when ascertaining Government rent, a building site should be treated as if it were a rateable tenement. The rules as to the ascertainment of rateable value are set out in sections 7(2) and 7A(2) of the Rating Ordinance, which together create a hypothetical test. The test requires the rateable value to be fixed based on the assumption that the tenement is subject to a yearly tenancy. It is calculated by reference to the rent of the yearly tenancy; the tenement will be assessed as it is on the valuation date, having regard to all the intrinsic quality and characteristics of the site which may affect the rental value. In 2001, Best Origin was one of the 59 developers which challenged the Director of Lands’ assessment of rent based on a substantial rateable value. They succeeded in the Court of Appeal, but the decision was reversed by the Court of Final Appeal (“CFA”) in the case reported as Commissioner of Rating and Valuation v Agrila Ltd and others (2001) HKCFAR 83. The challenge failed, and as a result of the CFA judgment, the Lands Tribunal was to assess the rateable value of the land on the basis that its mode or character of occupation on the valuation date was that of a development site. The Lands Tribunal ascertained the value by treating development potential as an intrinsic characteristic of a development site, which would generally result in a higher value as compared with a tenement lacking development potential. Best Origin appealed to the Court of Appeal and subsequently to the CFA on the basis that the Lands Tribunal made a number of errors of law in understanding and applying the principles relating to the assessment of rateable value. Both appeals were dismissed. In particular, CFA agreed with the reasoning of the Lands Tribunal except on two points, which are immaterial to the decision reached by the Lands Tribunal. Best Origin argued that the Lands Tribunal should not have taken into account development potential of the site. This error led the Lands Tribunal to assess what the premises may be capable of being developed into and then used for in the future, instead of reflecting the tenement as it is on the valuation date.It further criticized the Lands Tribunal for disregarding the fact that no developer in the real world would take up a site for development based on a yearly tenancy; it was contended that had this fact been properly considered, the resulting rateable value would have been nil or nominal. In response, the Government argued that it is in line with authorities for the valuer to take into account the prospect of the development. Further, Best Origin’s proposition that a lack of demand for a yearly tenancy in the real world would lead to a nil valuation was not supported by case law, and would enable occupiers of property for uses requiring long-term leases to escape liability for rates and Government rent. In essence, the CFA had to determine the implications of the fact that the mode and character of the occupation of the site was that of a development site. This involved an exercise in statutory construction of the relevant provisions and hypotheses. The CFA remarked that statutory hypotheses should be applied in a practical and flexible way without over elaboration beyond its statutory purpose. The CFA held that the starting point is to recognize that an active development site has an intrinsic characteristic of change towards completion of the development, where the site will grow in its physical appearance and value. Hence, the Lands Tribunal was correct to take into account the prospect of successful and profitable development, which is an intrinsic character of a development site during the course of construction. The CFA recognized that for many years courts have assessed the rateable values of tenements for public utilities such as sewage system and portion of railway lines, which no statutory undertakers would contemplate taking on a yearly tenancy. When dealing with these cases, the yearly character of the hypothetical tenancy should be interpreted as indicating an indefinite duration unless terminated by notice. Such tenements are generally valued on the contractor’s basis method of valuation by reference to an appropriate yield on their capital cost. The CFA confirmed that this approach should be extended to development sites for the purposes of assessing Government rent, taking account of the cost of the site but not the cost of the construction work. Therefore, the Lands Tribunal rightly concluded, and the Court of Appeal and the CFA have affirmed, that while a development site is not immediately productive of income or profits during the course of construction, it is nevertheless of real value to the occupier and has a significant rateable value for purposes of Government rent. 
The appellant was employed by the Hospital Authority as a doctor to provide medical consultations to out-patients in a clinic. On 16 occasions, the appellant booked appointments in the clinic, bought consultation tickets, wrote consultation summaries and prescribed medicines worth a total of $247 for his parents and his son. However, his parents and his son did not attend the clinic for these consultations. The diagnoses of his parents were conducted over long distance phone calls as they were overseas and the diagnoses of his son were conducted at home. The appellant was convicted of one count of misconduct in public office by the Deputy Magistrate. The conviction was upheld on appeal by the Deputy High Court Judge. There are two key issues: First, did the appellant falsify records of the Hospital Authority? Second, was the appellant’s conduct sufficiently serious to amount to the offence of misconduct in public offence? In respect of the falsification issue, the Deputy Magistrate and the Deputy High Court Judge held that the appellant falsified consultation summaries and computer records (the “Records”) as a whole as he failed to clearly state in the Records that his family members did not attend the clinic, knowing that such Records would give rise to the impression that they did. The Court of Final Appeal disagreed with the lower courts and concluded that the appellant’s omission did not amount to falsification of records for several reasons: firstly, the commonly understood meaning of “falsification” involves creating a false document or record, or changing any entry or adding any false entry in a document or record; the appellant did not do any of these. Secondly, there was no evidence of any requirement for a doctor to state in the Records whether a patient personally attended the clinic; nor was there any evidence showing that the Records were intended to record such personal attendance. Thirdly, there was no clear evidence as to any other way in which a doctor could get medicine for his family members whom he had diagnosed outside the clinic. In respect of the “seriousness” issue, the Court of Final Appeal held that the appellant’s conduct was not sufficiently serious to amount to the offence of misconduct in public office. The aim of this offence is to punish an abuse by a public officer of the power and duty entrusted to him for the public benefit or of his official position. It would be wrong simply to conclude that if the misconduct in question is not trivial, then it must be serious enough to merit criminal sanction. The Deputy Magistrate’s reasoning overlooked the fact that the appellant was not required by any rule or the Code of Professional Conduct to diagnose patients inside the clinic and that the appellant’s family members were entitled to public medical services. Further, it was not proved that the public had been deprived of medical services as a result of the appellant’s conduct. Accordingly, though the appellant showed preferential treatment to his family members by dispensing them with attendance at the clinic, his conduct was not so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. 
1. This was an appeal against the Appellant’s conviction for making a false declaration to obtain registration for carrying on a vocation, contrary to section 37(a) of the Crimes Ordinance (Cap.200) (“CO”). 2. In October 2013, the Appellant submitted to the Nursing Council an application for enrolment as a nurse and a declaration form in which he declared that he had not been convicted of any offence punishable with imprisonment in Hong Kong (the “Declaration Form”). In fact, the Appellant had been convicted in 2007 of two charges of obtaining property by deception for which he was sentenced to seven weeks’ imprisonment for each charge. 3. The prosecution alleged that the Appellant wilfully made the declaration which he knew to be false or fraudulent to procure himself to be registered as an enrolled nurse. 4. At trial, the Appellant argued that he genuinely believed that he was not required to disclose his previous conviction on the Declaration Form due to the provisions of the Rehabilitation of Offenders Ordinance (Cap. 297) (“ROO”). This belief was confirmed by the legal advice obtained by him from the Free Legal Advice Scheme (“Legal Advice”). As understood by the Appellant, the Legal Advice meant that he would be excused from disclosing his previous convictions unless the application form expressly excluded the ROO. Since the Declaration Form did not contain such an express exclusion, the Appellant claimed that he genuinely believed that he could properly declare that he had no previous conviction. 5. After analysing the content of the Legal Advice, the Deputy Magistrate disbelieved the Appellant’s evidence. This was because he was of the view (which the Appellant challenged in this appeal) that the Legal Advice did not convey what the Appellant said it meant. As the Deputy Magistrate understood it, the Legal Advice directed the Appellant to disclose his previous convictions on the Declaration Form. The Deputy Magistrate therefore concluded that the Appellant wilfully and knowingly made a false declaration, and convicted him. 6. The Appellant appealed to the Court of First Instance without challenging this aspect of the findings by the Deputy Magistrate. While the court upheld the Appellant’s conviction on grounds unrelated to the present appeal, the Deputy Judge remarked that the Deputy Magistrate was right in his understanding of the content of the Legal Advice. 7. The Appellant brought a further appeal to the Court of Final Appeal. 8. The central questions in this appeal turned on the construction of section 37(a) of the CO and the meaning of the Legal Advice. Specifically, (a) as a matter of law, whether the prosecution had to prove that the Appellant appreciated the falsity of the declaration and whether a genuine and mistaken belief that the declaration was not false negated the Appellant’s liability; and (b) whether the declaration made by the Appellant was one which he knew to be false. 9. The Court held that the mental element of the offence under section 37(a) of the CO requires the prosecution to prove that the defendant has an appreciation of the falsity of the declaration he is making. If a defendant honestly and genuinely believes that the declaration is not false, even if it is the result of a mistake of law, he cannot be said to know that it is false. In that event, the mental element of the offence will not be established. 10. In this case, the Appellant’s understanding of the Legal Advice was correct. The Deputy Magistrate and Deputy Judge should not have disbelieved the Appellant’s evidence that he held the honest and genuine belief that the declaration was not false. It followed that the prosecution had not proved beyond reasonable doubt that the Appellant knew that the declaration he made was false. Therefore, the basis of his conviction was flawed. DISPOSITION 11. Accordingly, the appeal was unanimously allowed and the Appellant’s conviction quashed. 
1. This appeal concerns an application for judicial review brought by the Appellant challenging the lawfulness of a policy adopted by the Respondent. The policy required applicants submitting building plans for approval under section 14 of the Buildings Ordinance (Cap. 123) (“Ordinance”) to provide proof and particulars of ownership or realistic prospects of control of the site shown on the plans (“policy”). 2. In support of the policy, the Respondent relied on section 16 of the Ordinance which specifies the grounds on which approval of plans or consent to the commencement of building works may be refused. The Appellant however contended that the Ordinance does not expressly or by implication require an applicant to be the owner or have a realistic prospect of control of the site. As “site” is not defined in the Ordinance or in the subsidiary legislation, the Appellant argued that it is simply the physical area that an applicant chooses to put on the plan. 3. In the light of the decision of the Privy Council in Attorney General v Cheng Yick Chi [1983] 1 HKC 14 (“Cheng Yick Chi”), that a site can only include land which an applicant owns or has a realistic prospect of controlling, which was binding on them, the Court of First Instance dismissed the application for judicial review, and the Court of Appeal similarly dismissed the Appellant’s appeal. The Appellant now appeals to the Court of Final Appeal, contending, inter alia, that Cheng Yick Chi was wrongly decided and that on a proper construction of the Ordinance and the subsidiary legislation, a site is simply the physical area which an applicant chooses to put on the plan. 4. The Court first considered the proper construction of the Ordinance. It held that “site” is the single most important determining factor in a building plan and the word should be interpreted according to its context and purpose. The approval of building plans is dealt with in the context of prohibition against building works without the necessary approval. The building plans were required to be approved or disapproved within a tight time table, and it was not envisaged that a site could be hypothetical. Given that the plans to be submitted were expected to be plans for bona fide intended developments, as a matter of statutory construction, “site” can only include land which an applicant owns or has a realistic prospect of controlling. Therefore, the Respondent was entitled to require particulars of ownership or realistic prospects of control of the site. 5. The Court came to the same conclusion reached by the Privy Council in Cheng Yick Chi, with which it was in respectful agreement. Accordingly, the appeal was unanimously dismissed. Concurring judgment of Mr Justice Ribeiro PJ: 6. Construing section 16 of the Ordinance in the light of its context and purpose, the policy is reasonably necessary to enable the Respondent fully to consider whether submitted building plans should be approved. 7. First, section 16(1)(d), taken in combination with section 16(1)(i), supplies a statutory basis for the policy. Ownership and realistic prospects of control are often directly relevant to ascertaining the extent, position and nature of the site as an essential step in calculating the permitted parameters of the development. Possible grounds for disapproval because of contravention by exceeding the statutory maxima may only emerge as a result of the Respondent requiring particulars and proof of ownership or control of the site in the first place. 8. Second, the policy is justifiable on a broader construction of section 16 in the context of other provisions in the Ordinance. The statutory intent maintains its focus on an actual, and not a purely hypothetical, development project. Resources naturally being limited, the state of affairs following from the Appellant’s contention would place heavy administrative burdens on the Respondent and cause delays in the approval process in relation to genuine and bona fide development projects. 
The Respondent was the holding company of the Rockapetta Group of companies (the “Group”), including Rockapetta Industrial Company Limited (“RICL”) and Grand Extend Investments Limited (“GEIL”). The Appellant was the co-founder, chairman and executive director of the Group. The Appellant extended loans totalling $83 million between 1995 and 1998. Financial documents indicated such loans were made to RICL and GEIL. The loans were partly repaid, reducing the outstanding balance of the loans to $44.5 million. In 2004, the Appellant sued the Respondent, claiming the outstanding balance of the loans he made in the sum of $44.5 million and interest. It was alleged that the Respondent was itself liable for the repayment of the loans. The trial judge held in favour of the Appellant against the Respondent. The Court of Appeal allowed the Respondent’s appeal on the basis that the trial judge erred in holding that the Appellant’s loans were made to the Respondent rather than to RICL and GEIL. The Court of Final Appeal unanimously dismissed the Appellant’s appeal. The essential issue was a factual one: who was or were liable for the repayment of the loans? The Court of Final Appeal rejected the Appellant’s submission that companies in the Group, including the Respondent, had assumed joint and several liability in relation to the loans. A claim on such a basis had not been made by the Appellant in any of the claim documents filed in court. The Court of Final Appeal referred to a number of documents and other matters evidencing the fact that the loans made by the Appellant were to RICL and GEIL, instead of the Respondent. Accordingly, the Respondent could not be held liable. The Court of Final Appeal observed that the present appeal is one of many instances of an unmeritorious appeal under the “as of right” provision of section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance (Cap 484). If leave to appeal had been required, it would no doubt have been refused. Hopeless appeals brought under the “as of right” provision such as the present one lead to injustice and are wasteful of resources. The “as of right” provision no longer has any validity or proper purpose. 
1. The Appellant was convicted after trial of one count of trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap.134. On a stop-and-search by the police, he was found in possession of a box containing cocaine and also in possession of the keys of a car beside him in which a further quantity of cocaine was found. 2. The Appellant’s case at trial was that he did not know what the box contained or of the presence of the drugs in the car. He did not give evidence at the trial but relied on the content of his video recorded interview (“VRI”) in which he explained that he had earlier handed his car over to a “Hak Chai”, who was a car repairman, to quote for its repair and he had arranged to meet Hak Chai on the night in question to pay him. When he arrived, Hak Chai had said he had to go to the lavatory and so asked the Appellant to wait by the car for him. Hak Chai left the Appellant with the car key and a box, saying that there was something valuable inside it and that someone would come and collect it. 3. However, there were three mistranslations in the English transcript of the VRI, which suggested that the Appellant had already paid Hak Chai and that the car had been fixed. As a result, the Trial Judge, who did not speak Cantonese, commented in the course of her summing-up to the jury that the Appellant’s answers in the VRI were inconsistent and that there were chronological difficulties in his account. 4. The Court of Appeal considered that the Judge had been misled by the mistranslations but concluded that the mistranslations did not result in any material unfairness for two reasons. First, much of what the Judge said was directed at the generally confused and muddled nature of the Appellant’s answers in his VRI. Second, by requesting to review the VRI, the jury had gone to the primary materials to determine for themselves what to make of the Appellant’s account. This was coupled with the observation that the bulk of what the Appellant said in the VRI should be clear to the native Cantonese speaker. 5. The issue in the appeal was whether the Judge's comments relying on the mistranslated portions of the VRI may have resulted in the Appellant not receiving a fair trial. 6. The Court of Final Appeal held that whether a mistranslation leads to unfairness in a trial will necessarily depend on the nature and context of the mistranslation and its importance to the issues in the particular case. 7. In the present case, there was only one issue, namely whether the Appellant knew the drugs were in the box and in the car. The contents of the VRI and the Appellant’s credibility were critical to that issue. Therefore, the Judge’s comments on the basis of the mistranslated portions of the VRI resulted in the summing-up being unbalanced and unfair to the Appellant. 8. The Court did not agree that the unfairness had been overcome by the reasons given by the Court of Appeal. It was speculative to assume all the jurors were native Cantonese speakers and to conclude that, by requesting to review the VRI, the jury must have done so in order to check the accuracy of the Judge’s comments on the Appellant’s answers. More importantly, it devalued the significance of the summing-up in the trial process, as the jury was bound, as well as entitled, to take the Judge’s summing-up into account in its deliberations. 9. The Court therefore concluded that it had been shown that substantive and grave injustice had been done to the Appellant since, in the circumstances, the Judge’s comments based on the mistranslations did result in the Appellant not receiving a fair trial. 10. The Court allowed the Appellant’s appeal, quashed his conviction and ordered a re-trial. 
1. Yiu Hoi Ying Charles (“Charles”) and Wong Nam Marian (“Marian”) were respectively the Director of Finance and Company Secretary of a listed company - Asia TeleMedia Limited (“ATML”). In July 2002, ATML owed Madam Liu Lien Lien (“Madam Liu”) sums totalling $83.39 million and was insolvent. ATML defaulted in repayment which led Madam Liu to serve five statutory demands on ATML between October 2002 and April 2006. On each occasion, she had been willing to negotiate and did not follow up the statutory demands by serving any winding-up petitions. ATML remained listed and was regarded as having value only as a potential listing-shell. 2. In February 2007, Madam Liu assigned the balance of ATML’s debt in the sum of $58.08 million plus accrued interest to Goodpine Limited (“Goodpine”). Goodpine demanded payment of the debt and served a statutory demand on 26 April 2007, stating that it would petition to wind-up ATML if ATML failed to pay the full amount within 21 days. The public was never informed of the assignment and statutory demand. In the meantime, there was a surge of speculative interest in ATML shares which sharply drove up their price and trading volumes. 3. Between 28 February and 5 June 2007, both Charles and Marian exercised share options and sold their shares, netting substantial profits. On 6 June 2007, Goodpine presented a winding-up petition and the share price of ATML fell very substantially. 4. A Market Misconduct Tribunal (the “MMT”) was constituted to determine whether any insider dealing had taken place. The MMT found that the assignment of the debt to Goodpine and the consequent statutory demand constituted inside information. It was also found that both Charles and Marian knew that the information, if it fell into the public domain, would be likely to have a material effect on the price of ATML shares. Accordingly, the MMT found that Charles and Marian were culpable of insider dealing under section 270(1) of the Securities and Futures Ordinance (the “SFO”), unless a defence could be established. 5. The MMT, however, acquitted Charles and Marian on the basis of the defence under section 271(3) of the SFO, which provided that a person should be acquitted if he did not have a purpose of making profit by using inside information. This was because the MMT found that (1) the sole motivation of Charles and Marian in selling the ATML shares was to seize the opportunity to sell at the surge prices, and that (2) they did not use the inside information since they believed that whatever threatened the share price would be resolved “behind closed doors” and would not influence the market price of the shares. The decision was upheld by the Court of Appeal. 6. The central question in this appeal was whether, on the findings of the MMT, it was correct as a matter of law to hold that Charles and Marian were entitled to rely on the section 271(3) defence. 7. It was agreed that the questions of whether insider dealing took place and also whether the defence applies should be determined at the time when the insider traded the shares. 8. Charles and Marian asserted that their sole purpose was to secure an unexpectedly high profit. This meant that they could only rely on the section 271(3) defence if they could prove that they did not use inside information to secure such profits. 9. The majority held that Charles and Marian failed to establish that defence. In selling the shares, they did take advantage of their knowledge that the prices they were securing would not have been achievable if the information was disclosed to the market. By doing so, they were using inside information and so were excluded from the section 271(3) defence. 10. In the majority’s view, MMT made an error in law since Charles and Marian’s subjective belief that the threat of liquidation would be sorted out in due course and that negative news about the company would remain “behind closed doors” was legally irrelevant. When they traded their shares for profit, they were using the information at that very time and a belief as to what might happen in the future to resolve ATML’s problems was beside the point. The majority therefore held that Charles and Marian were guilty of market misconduct by insider dealing. Dissenting judgment of Mr Justice Tang PJ: 11. In Tang PJ’s view, whether the insider can show that he had not in any way been motivated by the inside information is a question of fact on a subjective issue. 12. Tang PJ held that the section 271(3) defence should be interpreted to provide a defence for a defendant who can show that he would have done what he did even if he had not had the information. 13. On the facts, Tang PJ held that the MMT did not make an error in fact or in law, and did not believe that the Court was entitled to interfere with the MMT’s findings. The MMT was entitled to hold that, like the other employees of ATML, Charles and Marian sold because of the speculative bubble in the shares and the relevant information was not a factor. CONCLUSION: 14. Accordingly, the appeal was allowed by a 4:1 majority. 
The 1st Appellant, as debtor, and 2nd and 3rd Appellants as guarantors, took out a series of mortgaged loans with the Respondent, a moneylender. The Appellants defaulted in repayment in 2003 and the outstanding loan amount then was some $20 million. The Appellants and Respondent entered into successive Tomlin Orders in 2004 and 2005, each containing a schedule of monthly repayment for that year of part of the total outstanding amount. Upon default of the Appellants in complying with the 2005 Order, the Respondent sought to recover the entire loan. The Appellants claimed that since they had belatedly fully complied with the 2005 Order, their entire liability had been discharged and the Respondent could no longer claim the amount outstanding. The Court upheld the decision of the Court of Appeal and the Court of First Instance that there was a common intention between the two parties that the full payment of the 2005 instalments would not discharge the entire post-2005 debt. Since both parties appeared to have agreed that the result of their agreement should be embodied in the 2005 Order, it followed that if their Order could be construed as implying a full release of all outstanding debt, it did so by common mistake. The Court affirmed the trial judge’s finding that the 2nd Appellant was not an honest witness, that he always knew it was never the intention of the Respondent to release its debt and that it was misconduct on his part to use the form of the Tomlin Order to support a claim that the parties had done so. The Court held that there is no inconsistency on the Respondent’s part in asserting in the alternatives both common mistake and in the case of misconduct by one party, the unilateral mistake of the other. The Court upheld the lower courts’ rectification of the terms of the two Tomlin Orders which were made to reflect the Appellants’ duty to discharge all that is outstanding in the repayment of the approximately $20 million owed to the Respondent. The appeal is unanimously dismissed. 
1. China Mining Resources Group Limited (“China Mining”) is a company listed on the Hong Kong Stock Exchange. It wholly owned Biogrowth Assets Limited (“Biogrowth”), which in turn wholly owned Cell Therapy Technologies Centre Limited (“Cell Therapy”). At the material time, Luk Kin Peter Joseph (“Mr Luk”) and Yu Oi Kee (“Miss Yu”) were sole directors of Biogrowth but were not directors of China Mining. 2. United Easy Investments Limited (“United Easy”), a company apparently controlled by the aunt of Mr Luk’s wife, acquired Cell Therapy for HK$15 million (“the Transaction”). Mr Luk and Miss Yu signed board minutes of Biogrowth authorizing the Transaction, which stated that none of Biogrowth’s directors was interested in the Transaction (“the Board Minutes”). However, at trial it was found that Mr Luk was secretly the ultimate beneficial owner of United Easy such that the Transaction was a connected transaction requiring disclosures and subject to voting restrictions in accordance with the Stock Exchange rules. 3. Mr Luk and Miss Yu were convicted of conspiring as agents to commit an offence under section 9(3) of the Prevention of Bribery Ordinance, Cap 201 (“POBO”) by using the Board Minutes, which falsely stated that Mr Luk was not interested in the Transaction, to deceive and mislead their principal. The Court of Appeal held that, since Mr Luk and Miss Yu were the sole directors of Biogrowth, Biogrowth was incapable of being deceived by them. However, Mr Luk and Miss Yu were agents of China Mining and were convicted on that basis. 4. Additionally, Mr Luk was convicted of offering, and Miss Yu as an agent of China Mining, of accepting a bribe consisting of 1.5 million shares in China Mining as an inducement for Miss Yu’s participation in the conspiracy. 5. Three questions arose: First, were the lower courts right to hold that Mr Luk and Miss Yu were agents of China Mining even though being directors of its subsidiary (Biogrowth), they were under no legal obligation to act on behalf of China Mining? Second, were the Board Minutes a “document” for the purpose of section 9(3) of the POBO or does “document” only refer to documents of the same type as “receipt and account”? Third, was the Court of Appeal right to hold that the principle that the mind and will of the sole director(s) are treated in law as the mind and will of the limited company, applied in the present case so that Biogrowth was incapable of being deceived by Mr Luk and Miss Yu? 6. In relation to the first question, the Court stated that to become an agent of another for the purpose of section 9(3), it was not necessary to have some pre-existing legal, contractual or fiduciary obligation to act in relation to that person’s affairs or business. In the present case, when Mr Luk agreed with the Chief Financial Officer of China Mining that he would find a buyer for Cell Therapy, he created a reasonable expectation that he would act in the interest of China Mining and to the exclusion of his own interest. More specifically, he assumed a duty to act in good faith and not deceive China Mining into making a false statement to the Stock Exchange about his having no interest in the Transaction. Therefore, the lower courts were right to hold that Mr Luk was an agent of China Mining. As for Miss Yu, she was aware of the basis upon which Mr Luk put forward United Easy as a buyer and participated in his deception. That is sufficient for her liability under the conspiracy charge. 7. As to the second question, the Court held that the Board Minutes were a “document” for the purpose of section 9(3) of the POBO. There is no need to confine the meaning of “document” to documents of the same type as receipts and accounts. However, it also cannot mean any document but must be a document in respect of which the principal is interested and which contains a false or erroneous statement intended to mislead. 8. Finally in relation to the third question, the Court stated that Biogrowth was indeed capable of being deceived by Mr Luk and Miss Yu. To be liable under section 9(3) of the POBO, the deceiver need not have in mind the particular person whose state of mind will count as that of the principal. In the present case, the false statement in the Board Minutes deceived an authorised officer of China Mining into thinking the buyer was an independent party and he thereby executed the sale agreement on behalf of Biogrowth. That was an act of Biogrowth and that officer’s deceived state of mind could be attributed to Biogrowth. 9. In relation to the bribery offences, the Court held that even assuming Mr Luk and Miss Yu were only agents of Biogrowth, their knowledge of the bribe could not be attributed to Biogrowth, let alone treated as a grant of permission by Biogrowth to give and receive it. 10. There are no uniform principles by which one will attribute acts, knowledge and states of mind to a company. In every case, the criteria for attribution must be such as will give effect to the purpose and policy of the relevant substantive rule, whether that rule is contained in a statute or the common law. In the context of bribery offences under the POBO, it would be absurd, and would also defeat the purpose and policy of the statute, to attribute to the company the knowledge of its directors of their own breach of duty to the company by giving and taking a bribe. 11. Accordingly, the Court dismissed the appeals. 
With the leave of the court, the Applicant seeks to challenge, by way of judicial review, the decision of the Principal Magistrate Mr Peter Law (“Magistrate”) made on 25 April 2022 (“Decision”) refusing her application to lift reporting restrictions for committal proceedings pursuant to s87A(2) of the Magistrates Ordinance (Cap 227) (“MO”). By the direction of the court, the Secretary for Justice (“SJ”) is added as the Respondent of this judicial review. On 2 August 2022, the Court of First Instance gives judgment allowing the judicial review of the Applicant. The Court of First Instance held: 1. The issues in this judicial review, which concern the true interpretation of s87A(2) of the MO, are narrow, namely (i) whether the Magistrate was under a mandatory duty to lift reporting restrictions imposed by s87A(1) on committal proceedings at the instance of an accused; and (ii) if the Magistrate had a discretion in the aforesaid matter, whether he had taken into irrelevant considerations or ignored relevant considerations in coming to the Decision. 2. In gist, the Applicant submits that s87A means what it says, to the effect that reporting restrictions must be lifted if an application is made pursuant to subsection (2) requiring that the default position under subsection (1) of the section should no longer apply. As such, the Magistrate erred in supposing that a discretion existed. It is further submitted that even if such a discretion existed, the Magistrate’s reasoning was totally in opposition to the principles of Open Justice that govern the exercise of judicial power in the context of restricting access to, or reporting of, court proceedings. 3. On the other hand, SJ submits that purposively and properly construed and having regard to the ultimate aim of having a fair trial, an examining magistrate presiding over committal proceedings has a discretion under s87A(2) whether or not to lift reporting restrictions imposed by s87A(1). Furthermore, it is submitted that the Magistrate had properly exercised his discretion in the matter. 4. Having considered submissions of counsel and having regard to the existence of other measures available for the protection of witnesses, the court rejects SJ’s contention that the lifting of reporting restrictions under s87A(2) would frustrate the ultimate aim of doing justice. Besides, having regard to the legislative background of the provisions in the MO governing committal proceedings; the relevant articles in the Basic Law, the Bill of Rights and the National Security Law; and also the case authorities, the court can find no cogent or convincing reasons that the provisions in s87A(2), MO should bear the meaning as contended by SJ. To the contrary, a purposive and contextual interpretation and a consideration of the case law point in unison to the conclusion that s87A(2) means what it says in that the magistrate has no discretion but to lift the reporting restrictions at the instance of the accused. It follows that the Decision is ultra vires in that the Magistrate purported to exercise a discretion which did not exist. 5. Furthermore, even assuming that such a discretion did exist, based on BOR 10, the court is inclined to the view that a magistrate presiding over committal proceedings should not refuse to accede to an application made by an accused pursuant to s87A(2) unless such refusal is “strictly necessary” in the interests of justice. On that basis, the Decision would still be flawed in that it entails a failure to take into account relevant considerations, as a result of which it has not been shown that the reporting restrictions were “strictly necessary” in the circumstances. 6. That said, the court restrains from expressing any conclusive views as to whether s87A(2) is so wide as to violate the fair trial right (provided for in the BOR and entrenched by the BL) of the co-accused. This is because the issue does not arise in the present case. 
1. The case concerned a charge of money laundering. The Appellant was charged with dealing with all the monies deposited between 1 January 2006 and 26 October 2011 into her accounts with five banks and with jewellery and property found in her flat and in two bank safe deposit boxes rented by her. After trial, the Appellant was convicted and sentenced to 6 years’ imprisonment. 2. The Appellant appealed against the conviction on the basis that the charge was duplicitous in that it improperly charged more than one offence in one count of the indictment against her. 3. Applying the approach in HKSAR v Yeung Ka Sing Carson and HKSAR v Salim Majed (FACC 5 & 6/2015 and FACC 1/2015, unrep., Judgment dated 11 July 2016), the Court held that there was a sufficient connection between the acts of money laundering with which the Appellant was charged, such that they might fairly be regarded as forming part of the same transaction or criminal enterprise. Furthermore, there was a lack of any prejudice to the Appellant in the conduct of her trial and appeal to the Court of Appeal by reason of the form of the charge against her. Thus, the charge was held not to be duplicitous within the meaning of the Indictment Rules. 4. Accordingly, the appeal was dismissed. Nevertheless, the Court observed that, depending on the facts in other cases, a combined charge similar to that in this case could potentially give rise to a risk of unfairness due to the inherently duplicitous nature of such a charge. 
1. This appeal concerns the proper construction of a will. Mr. Tan Kiam Toen (the “Testator”) was a successful businessman. His main assets included shares (the “Shares”) in one Afro-Asia International Enterprises PTE Limited, which in turn held interest in one Singaporean listed company, EnGro Corporation Ltd. The Shares are registered in the names of the Testator’s 2 daughters, namely the 3rd Appellant and the 1st Respondent. 2. The Testator executed the will in question in 2008 (the “Will”). The Will provides that it governs “all the properties under [the Testator’s] name [wheresoever situate worldwide]”. It provides that his wife, Madam Ng, who survives the Testator, is to “enjoy during her lifetime the income derived from the estate of” the Testator, and that upon her death, the entire residue is to pass to specified charities. The Testator further declares that he does not intend to give any portion of his residuary estate to his children, stating that they have received adequate and appropriate care during their parents’ lifetime. 3. The Testator passed away in 2008. The Respondent as sole executrix of the Will included the Shares in the probate’s Schedule of Assets and Liabilities as the Testator’s assets in Hong Kong, along with other assets including the Testator’s art collections. 4. The Appellants, being the Testator’s 3 sons and 1 daughter, issued proceedings to seek the Court’s interpretation of the Will. They contended that words “under [the Testator’s] name” (the “Words”) mean the Will only governs assets held in the name of the Testator. Since the Shares are not held in the name of the Testator, but in his 2 daughters’ names on trust for him, the Shares are excluded from the Will and should not pass under the Will to the charities, but pass by way of partial intestacy to the Testator’s children. The 1st Respondent disagreed, submitting that the Words were intended to merely mean “belonging to the Testator”, encompassing property held on trust for him. 5. At the Court of First Instance, DHCJ B Chu (as she then was) concluded that the Shares are not excluded in the Will, holding that the Words are wide enough to cover assets beneficially belonging to the Testator. Furthermore, the Judge held that since the meaning of the Words was clear, it was not necessary to consider s. 23B of the Wills Ordinance to ascertain the meaning of the Words by adducing extrinsic evidence, as the section only operates only when the words in a will are ambiguous. In any event, the Judge held that even if s. 23B were engaged, the outcome would have been the same. The Court of Appeal upheld the Judge, and held that the Words in their dictionary meaning mean assets “belonging” to the person concerned. 6. The Court also questioned the validity of the Appellant’s narrower interpretation, as it would implausibly suggest that the Testator had gone to the trouble of making a will to provide for how his property should be dealt with after his death, but had chosen to exclude his most valuable assets from this exercise, leaving them to be dealt with on a partial intestacy. 7. Similarly, the Court reasoned that, on the Appellant’s narrower interpretation, by excluding the Shares, the gift of income to his widow could have no meaningful effect, as this effectively excludes the only obvious income-earning assets from the operation of the Will. Hence the Court concluded on the Will’s true construction, unaided by any extrinsic evidence, the Words apply to all properties belonging to the Testator, including properties held on trust for him. Other alternative meanings are less than reasonably arguable when the Will is read as a whole, and the Court dismissed the appeal. 8. Nonetheless, although it was unnecessary to do so since the Court had found an absence of ambiguity, the Court held that even if potential extrinsic evidence were adduced via s. 23B, it would not have led to a different outcome. 9. The evidence showed that before and after the Testator executed the Will, he had wished to make a gift whilst he was living of the Shares to Madam Ng and the children. This was not achieved before the Testator passed away. The Court found that this evidence, even if admissible, would not throw any light on the Testator’s testamentary intentions. Evidence that the Testator had intended when alive to make a gift of the Shares to his family, was not evidence of an intention to dispose of such property outside his Will if the intended gift failed to materialise. CONCURRING JUDGMENT OF TANG PJ: 10. Tang PJ took the view that, given the extrinsic evidence shows that in a previous will in 2006, the Testator had declared that he has no assets held by his daughters, it would seem clear that the Shares, now said to be beneficially held by the Testator, were not then regarded by the Testator as part of his estate. This declaration was not repeated in subsequent wills, and hence there is no way of knowing whether the Shares held in the names of others were regarded by the Testator as part of his “remaining properties”. 11. Tang PJ did not find it necessary to resort to the clause in the Will that gave Madam Ng life interest in the income, as Tang PJ regarded it as a standard clause normally found in wills that provide for life interests. On the evidence of the potential gift, Tang PJ agreed that the Testator could not have intended by the use of the Words to indicate that should the gift fail it would devolve as on intestacy. 
1. On 7 October 2011, Fu Ming Transport Co Ltd (“Fu Ming”) went into voluntary liquidation and dismissed its employees (including the Applicant) with immediate effect. The Applicant was owed severance payment and applied to the Respondent for an ex gratia payment in relation to this item under the Protection of Wages on Insolvency Ordinance, Cap 380 (“the PWIO”). The Respondent was of the view that no ex gratia payment was payable in relation to severance payment and his decision was upheld by the Board. The Court of First Instance dismissed the Applicant’s application for judicial review to challenge the Board’s decision. The Applicant’s appeal to the Court of Appeal was dismissed. The Applicant appealed to the Court of Final Appeal. 2. The question before the Court was one of statutory interpretation. Severance payments are calculated under s.31G of the Employment Ordinance, Cap 57 (“the EO”). After calculation under s.31G, in order to arrive at the net or actual severance payment due to an employee for the purposes of the EO, deductions are then made (by reason of s.31I of the EO) if an employee has benefits from, for example, an occupational retirement scheme or a mandatory provident scheme (“s.31I benefits”). Ex gratia payments are made under the PWIO to employees (like the Applicant) where an employer (like Fu Ming) fails to make severance payments by reason of insolvency. Financial limits are set out in s.16(2)(f)(i) of the PWIO on the amount of ex gratia payments payable on account of severance payment. These limits are calculable by applying the formula set out in s.16(2)(f)(i) to the amount of severance payment to which an applicant is entitled (the formula is $50,000 plus 50% of the excess beyond that amount). The question in the present appeal was how to calculate (for the purposes of applying the said formula) the appropriate amount of severance payment to which an applicant was entitled in order to arrive at the amount of ex gratia payment (if any) that can be made under the PWIO. The specific question was how and at what stage to take account of the s.31I benefits. 3. The Court of Appeal held that the formula in s.16(2)(f)(i) was first to be applied to the amount of severance payment calculated under s.31G of the EO to arrive at a sum, from which would then be deducted the s.31I benefits in order to arrive at the appropriate ex gratia payment (if any). This resulted in the Applicant getting no ex gratia payment in the present case. The Court of Appeal therefore applied the same approach in calculating ex gratia payments under the PWIO as was the approach under the EO. It held that the statutory intention of the PWIO was similarly to treat all employees the same irrespective of whether such employees had s.31I benefits. 4. The Court of Final Appeal held that this was a wrong approach as matter of statutory construction. Nothing in the wording of the PWIO permitted this approach and the words of this Ordinance did not permit the statutory intention held by the Court of Appeal. Instead, the amount of severance payment to which an applicant was entitled for the purposes of s.16(2)(f)(i) was the actual net amount of severance due and therefore any s.31I benefits had first to be taken into account in arriving at this net sum. Only then was the statutory formula applied to this net sum to arrive at the ex gratia payment on account of severance payment. 5. Accordingly, the Court unanimously allowed the appeal and quashed the decision of the Board. 
1. This appeal concerns a piece of land in Sai Kung (the “Disputed Land”) jointly owned by three brothers who died respectively in 1991 or 1992, 1997 and 1999 (the “Three Brothers”). The Appellant is the personal representative administering the estates of the two younger brothers. The 1st and 2nd Respondents are the children of the eldest brother and have inherited his share in the Disputed Land. The 3rd Respondent is the son of the 1st Respondent. 2. Since the 1970s, there had been an understanding among the Three Brothers and the 3rd Respondent that the latter could use and own the Disputed Land and build a house thereon when he became an adult (the “Common Understanding”). The Common Understanding did not include an assurance that the Three Brothers would leave the Disputed Land by will to the 3rd Respondent. Knowing about the Common Understanding, the 3rd Respondent started carrying out various building works on the Disputed Land since the 1980s. He also erected two buildings on the Disputed Land in 2002 and 2003 (the “Structures”). 3. The Appellant brought an action against the Respondents, seeking an injunction to restrain them from carrying out building works on the Disputed Land and requiring them to remove the Structures. Based on the Common Understanding, the Respondents argued that the 3rd Respondent is beneficially entitled to the Disputed Land, and the Appellant is prevented from claiming relief due to the doctrines of common intention constructive trust, proprietary estoppel, estoppel by acquiescence, and promissory estoppel. The 1st and 2nd Respondents counterclaimed against the Appellant for one-third of the rental income of a house built on land adjacent to the Disputed Land (the “House”). The House is jointly owned as to one-third by the 1st and 2nd Respondents and as to two-thirds by the Appellant as tenants-in-common in undivided shares. 4. The Court of First Instance (“CFI”) dismissed the Appellant’s claims and held that the 3rd Respondent is the sole beneficial owner of the Disputed Land, and the Appellant is a constructive trustee holding a two-thirds interest therein for him. The CFI also upheld the counterclaim of the 1st and 2nd Respondents. The Court of Appeal (“CA”) set aside the CFI Judgment and remitted a number of questions that raise both factual and legal issues to the CFI Judge. 5. On the Appellant’s application for leave to appeal, the CA held that the questions raised are reasonably arguable but decided to adjourn the leave application, pending the CFI’s determination of the remitted issues. The Appellant then successfully obtained leave to appeal to this Court from the Appeal Committee. 6. The issues on appeal related to the scope and timing of the “detrimental reliance” required to establish a proprietary estoppel and to whether the counterclaim for occupation rent and rental receipts by the 1st and 2nd Respondents as co-owners against the Appellant was made out. The requirement of “detrimental reliance” in proprietary estoppel 7. The issue was whether there was sufficient detrimental reliance by the 3rd Respondent on the Common Understanding prior to the death of all of the Three Brothers to give rise to a proprietary estoppel against the Appellant as the personal representative administering the estates of the two younger brothers. 8. The Court held that where there is a lack of the necessary detrimental reliance by the promisee prior to the death of the promisor, the promise or assurance by the promisor must be taken to have lapsed upon the latter’s death. If a promisee can establish a proprietary estoppel based on sufficient detrimental reliance incurred prior to the death of the promisor, his/her interest so created would prevail over the interests of the testamentary beneficiaries or of the next of kin (under the Intestates’ Estates Ordinance (Cap.73)). 9. On the facts of the case, the steps taken by the 3rd Respondent prior to the death of the Three Brothers to improve the Disputed Land constituted sufficient detrimental reliance by him upon the Common Understanding. The Court therefore ordered the Appellant to transfer her two-thirds interest in the Disputed Land to the 3rd Respondent. The payment of occupation rent to co-owners of land in cases other than partition or ouster in the absence of an agreement 10. The issue was whether the Appellant should be ordered to pay the 1st and 2nd Respondents occupation rent and rental receipts, despite the fact that they had not been ousted (i.e., excluded) from the House and there were neither partition nor analogous proceedings in being, nor any agreement between the parties giving rise to a duty to account. 11. The Court held that the CA’s reference to a “modern approach” that a court will order a payment of occupation rent even if there is no ouster simply when it is necessary to do equity between the parties is not supported by the existing authorities. 12. In a case where partition or analogous proceedings have been instituted but no co-owner has been ousted from the property in question, an equity in favour of one of the co-owners who spent money on substantial repairs and lasting improvements may be recognised while debiting the other co-owner with an occupation rent to set off the expenditure appropriately incurred. This reciprocally balances the parties’ interests in the distribution of the proceeds of sale of a co-owned property. 13. On the facts of the case, the Court held that the 1st and 2nd Respondents had failed to show any basis for claiming occupation rent or an account of rent. The counterclaim was therefore dismissed and it was unnecessary to remit the issue of building expenses incurred by the Appellant to the CFI for determination. DISPOSITION: 14. Accordingly, the appeal was unanimously allowed, the CA’s Orders were set aside and in their place, the Court dismissed the Appellant’s claim against the 1st, 2nd and 3rd Respondents and ordered her to transfer her share of the Disputed Land to the 3rd Respondent; the Court also dismissed the claim of the 1st and 2nd Respondents for an account of rent, making necessary consequential Orders. 
1. The Appellant was responsible for the management and operation of the Jockey Club Kau Sai Chau Public Golf Course (the “Golf Course”). On 18 May 2009, an employee of the Appellant (the “employee”) received an instruction to pick up four workers in a vehicle owned by the Appellant (the “light utility vehicle”) for some electrical engineering repair work. As the employee was driving the light utility vehicle on a road adjacent to one of the golf courses, it lost control and overturned as it was going downhill. The employee and the four workers were thrown out of the light utility vehicle and injured. One of the workers subsequently died as a result of his injuries. 2. The Appellant was charged with one count of using a motor vehicle without third party insurance, contrary to sections 4(1) and 4(2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap 272) (the “MVI(TPR)O”). It was convicted at trial and fined HK$6,000. The Court of First Instance dismissed its appeal. The Appellant appealed to the Court of Final Appeal. The appeal raised questions concerning the definitions of “road” and “motor vehicle” in the MVI(TPR)O. 3. The Court unanimously dismissed the Appellant’s appeal. In relation to whether the section of the road where the accident occurred was a “road” to which the public had access, the Court considered that golfers playing at the Golf Course were members of the public in general. The Golf Course was a public golf facility and not a private club. There was ample evidence to find that golfers used and had access to the road in question. Therefore, it was a road to which the public had access. 4. In relation to whether the light utility vehicle was a “motor vehicle” as defined in the MVI(TPR)O, the material question was whether it was “a vehicle intended or adapted for use on roads”. The correct test to be applied was Lord Parker CJ’s objective test in Burns v Currell, namely whether a reasonable person looking at the vehicle would say that one of its users would be a road user. An application of the Burns test was highly fact-sensitive. In particular, the Court highlighted the fact that the light utility vehicle was regularly used on the road in question, being a road to which the public had access. The Courts below were correct to find that a reasonable person looking at the light utility vehicle would say that one of its users was use on a “road”. Therefore, the light utility vehicle was a “motor vehicle” as defined in the MVI(TPR)O. 
1. The charge was that, on 13 May 2013 at 10.12 am at Yu Tung Road Cycling Track near lamp post AC 1509, the Respondent being a person riding a bicycle on a road did, without reasonable excuse, fail to comply with the requirement indicated by a traffic sign of the type shown in Figure No. 155 in Schedule 1 of the Road Traffic (Traffic Control) Regulations Cap.374G (“the Regulations”). Figure No. 155 is a cycling restriction sign and indicates that cycling is prohibited beyond the sign and that cyclists must dismount and push their bicycle if they wish to proceed beyond the point of the sign. 2. The Respondent’s case at trial was that she was honestly and reasonably confused by the sign and thought that it meant cycling was permitted. 3. The magistrate convicted the Respondent and imposed a fine of $500 by way of sentence. The Court of First Instance (CFI) quashed the Respondent’s conviction and set aside her sentence on the basis that there had been material non-disclosure of relevant materials. The CFI held that the Figure No. 155 sign was ambiguous, unclear and confusing. Therefore, the CFI held that it offended the principle of legal certainty and also gave the Respondent a reasonable excuse for failure to comply with the traffic sign in question. 4. On the prosecution’s appeal to the Court of Final Appeal, the focus was on the nature and scope of the offence of failing to comply with the requirements of a traffic sign and the limits of the statutory defence of reasonable excuse. Specifically, the issues were whether the meaning of a traffic sign depends on the cyclist’s subjective interpretation and, if not, whether her mistaken belief in its meaning constitutes a reasonable excuse for failing to comply with the requirement indicated by it. 5. The Court held that the offence is not a failure to comply with a traffic sign but with the requirement that the traffic sign indicates. The interpretation of the sign is not dependent on the cyclist’s subjective appreciation or non-appreciation of the meaning conveyed by it. Instead, the interpretation of the sign is approached taking in the meaning assigned to it by the Schedule of the Regulations. It is therefore no part of the offence that the sign alone must be interpreted, either by the cyclist or by a court, in order to determine what it is that the cyclist should or should not do. 6. The Court held that a consideration of the defence of reasonable excuse involves looking to three matters: (i) the matters said to constitute reasonable excuse must be identified; (ii) the court will then examine whether the excuse is genuine; and (iii) the court must make an assessment of whether that excuse is reasonable, which the court will do on an objective standard depending on the particular facts of the case. In applying the test, the Court held that the Respondent’s excuse fell short of the “reasonableness” requirement in (iii) because: (a) given that the prescribed meaning of the Figure No. 155 sign is that set out in Schedule 1 of the Regulations and not as determined either by the cyclist or by the court by reference to the sign alone, there is no room, objectively, to conclude that the Respondent’s honestly held but mistaken belief as to the meaning of the sign was reasonable; (b) there are a number of traffic signs, the meanings of which are not immediately apparent merely from looking at them. It would be a recipe for traffic chaos if an honest belief that those signs had different meanings to those set out in the relevant Schedule of the Regulations could constitute a reasonable excuse for not complying with their requirements; (c) the meaning of a prescribed traffic sign being that set out in the relevant Schedule of the Regulations and reproduced in the Road Users’ Code, it is a simple matter for any cyclist to ascertain the meaning of any applicable traffic sign; (d) all users of the road have a responsibility to familiarise themselves with the meaning of traffic signs and road markings, since this is important not only in terms of compliance with the Ordinance and Regulations, but also from the perspective of road safety; and (e) it was contrary to the general principle that ignorance of the law is not a good defence. 7. The Court considered that whilst the non-disclosed materials might have been relevant to the “genuineness” requirement in (ii), they were not relevant to the “reasonableness” requirement in (iii). The Court also found that the principle of legal certainty simply did not arise as an issue and the CFI erred in holding that it was engaged in the context of the present case. 8. The Court unanimously allowed the prosecution’s appeal on the issues of law raised. 
1. On 12 September 2009, the Appellant killed his cohabitee. The Appellant admitted to the killing and pleaded guilty to manslaughter. The key disagreement between the Respondent (the “Prosecution”) and the Appellant was whether the defence of provocation or diminished responsibility was available to the Appellant, which would reduce the charge of murder to manslaughter. 2. For the same killing, the Appellant was tried for and convicted of murder three times. The Appellant appealed the latest conviction on the basis that the trial judge misdirected the jury by failing to draw their attention to the relevance of the psychiatric evidence adduced in support of diminished responsibility to whether the Appellant had lost his self-control because of provocation. The Court of Appeal (the “CA”) unanimously allowed the appeal and quashed the conviction. 3. The majority of the CA ordered a third re-trial for murder (i.e. a fourth trial). They did so after considering numerous factors. These included the seriousness of murder, the strength of the case against the Appellant, how the Appellant’s counsel gained tactical advantage by failing to point out the relevance of the psychiatric evidence to the Appellant’s loss of self-control and this was the first trial where the Appellant raised the defence of diminished responsibility. 4. The issue before this Court was whether, by ordering a third retrial for murder, the exercise of discretion by the majority of the CA miscarried. 5. This Court held that first, the Appellant’s counsel had not deliberately chosen to keep quiet about the relevance of psychiatric evidence to the question of loss of self-control and let the trial judge err for some tactical advantage. No tactical advantage would be gained by the Appellant’s counsel in doing so. In fact, neither the Prosecution nor the trial judge realised the relevance either and all three were on the same footing. Even if the Appellant’s counsel were at fault, it would be highly debatable that fault should be attributed to the Appellant. Secondly, the fact that diminished responsibility was raised for the first time at the third trial was not something that should count against the Appellant. There was evidence supporting the defence and the Appellant was entitled to run it. Whether raising it earlier could have prevented problems was highly speculative. Regardless, given the highly technical nature of this defence, any fault for not raising it earlier should not lie with the Appellant. By considering these two factors, the majority had taken into account irrelevant considerations when ordering the third re-trial. The CA’s exercise of discretion miscarried. 6. This Court held that the discretion should be re-exercised and in doing so decided not to order a third retrial. There were five matters which were particularly important to reaching this decision: 6.1. First, if a third retrial was ordered, this would be a fourth trial for murder, which would be oppressive to the Appellant on the facts of the present case. 6.2. Second, the Appellant had already been remanded in custody for a period of time equivalent to a sentence of imprisonment of almost 27 years (after taking into account the discount for an early guilty plea and remission for good behaviour). It went well beyond the higher end of the usual range of sentences for manslaughter. 6.3. Third, given the long lapse of time, the Appellant’s and other witnesses’ memory of the relevant events must be affected, affecting the quality of the evidence and demeanour of the witnesses. Since the Appellant’s performance in the witness box would be important to the issues in the fourth trial, the Court was not of the view that it could be satisfactorily remedied by the trial judge giving appropriate directions to the jury. 6.4. Fourth, as for the strength of the Prosecution case for murder, the Appellant’s case on provocation was at least reasonably arguable and a murder verdict was certainly not a foregone conclusion. 6.5. Fifth, even though the quashing of the convictions in the first and third trials was partly due to mistakes made by the Appellant’s counsel, this carried little weight. In the first trial, the primary responsibility for the mistake lay with the Prosecution. For the third trial, the mistake made did not arise out of a deliberate, tactical decision by the Appellant’s counsel. Disposition 7. Accordingly, the appeal was unanimously allowed. 8. This Court quashed the order for a third retrial, entered a conviction for manslaughter on the basis of provocation and sentenced the Appellant to such sentence that would allow for his immediate release from custody. 
1. Paragraph 1 of the judgment states that this is an assessment of damages for personal injuries suffered in a road traffic accident that occurred on 27 June 2014. At the time of the accident, the plaintiff, who was born on 1 October 1959, was about 54.5 years of age. Liability was admitted on 25 November 2015, before proceedings were commenced on 29 May 2017. Interlocutory judgment for damages to be assessed was entered on 8 June 2017 against the 1st and 2nd defendants. At the time of the accident, the 1st defendant was the driver of the 2nd defendant’s bus bearing registration number HS539. 2. Paragraphs 2 to 12 of the judgment contain a summary of the contents of the assessment bundles and the course of the trial. 3. Paragraph 13 of the judgment contains an overview of the parties’ cases and reproduces a table showing the amounts claimed by the plaintiff and the amounts conceded by the defendants. This table is set out below: 4. Paragraphs 14 to 22 of the judgment contain a review of the documentary evidence in relation to the accident that occurred, including statements taken by the police and photographs taken at the scene. 5. Paragraph 23 of the judgment sets out in detail the various treatments received by the plaintiff since the accident. 6. Paragraphs 24 to 37 of the judgment contain a review of the opinion evidence of the following experts: 7. Paragraphs 38 to 49 of the judgment contain a review of the plaintiff’s evidence. 8. Paragraphs 50 to 70 of the judgment contain the analysis of the evidence and the findings of the court. The key findings are contained in paragraphs 71 and 72 of the judgment which are set out below: “71. The plaintiff has told me a multitude of lies. He is a consummate, flagrant and egregious liar and I disbelieve his evidence. I find that he is a malingerer. I find that he suffered a contusion of the face and a mild neck soft tissue injury without any complications in the accident on 27 June 2014. I entirely reject his evidence and his claims that he suffered a multitude of disabilities, including his claims that he suffered frequent headaches and dizziness and severe headaches at night; severe pain on the back of his neck and persistent pain on his back; weakness of right hand, numbness and loss of sensation of his thumb and fingers; impaired hearing in his right ear; urinary incontinence; mentally slow in response and reduce concentration; depression, auditory hallucinations and suicidal ideas; being wheelchair-bound because of paralysis and loss of sensation of right leg. 72. I find that sometime after 31 August 2015, as discovered by an examination on 15 December 2017, the plaintiff suffered from a small PED which was not present in the previous examination conducted on or about 31 August 2015. This was a primary retinal disease not caused by ocular trauma. As a result, his right eye vision was blurred with distorted images. The newly diagnosed PED in the right eye and its subsequent visual impairment were not related to the accident on 27 June 2014 and his current ocular complaints of blurred and distorted vision in his right eye are not attributable to the accident. I reject the plaintiff’s evidence that he suffered from visual problems as a result of the accident on 27 June 2014.” 9. Paragraphs 73 to 76 contain the assessment of the quantum of the plaintiff’s claims by the court. The conclusions of the court are contained in paragraph 77 of the judgment which is set out below: “77. The plaintiff received the amount of $652,808.33 as employees’ compensation from Artwell Tapioca Limited on or before mid-March 2019 [E/361-363] which far exceeds my assessment of damages in this case as shown on the following table. Accordingly, I do not award any damages nor any interest on damages to the plaintiff. 10. Paragraphs 78 to 80, which are set out below, contain judge’s orders and directions in this action: “78. I dismiss the plaintiff’s action. I make a cost order nisi that the plaintiff pays the costs of the action to the 1st and 2nd defendants on an indemnity basis, to be taxed if not agreed. Such an order will become absolute unless a written application is made within 14 days by any party to vary it. I direct that such written application may be made by letter addressed to my clerk. Such letter should state the variation of my order that is sought and the reasons for seeking such variation. Upon application being made, I will dispose of the same on paper. I may or may not give directions to serve further written submissions before disposing of the same on paper. 79. As the cost order nisi will impact upon the Director of Legal Aid, I grant him leave to apply, by letter, to vary the order within 14 days and/or to apply for wasted costs orders, in respect of which I had made certain observations in paragraph 26 of my recent decision in Lai Sin Yan Elsie v. Tata Communications (Hong Kong) Ltd. HCPI 1092/2015, 14 August 2020.If application is made for wasted costs orders, I will give appropriate directions to enable affected parties to be heard and to deal with the same. 80. I also direct the solicitors for the defendants to send a copy of this judgment to Artwell Tapioca Limited or to their solicitors.” 11. A full translation of this judgment is available upon request. 
1. Tang Pui King (the “Deceased”) died intestate in 1978 and left a large estate (the “Estate”) to his five sons including the 1st Appellant and the Respondent. The 1st Appellant and the Deceased’s widow were appointed as administrators of the Estate. 2. In March 2003, the 1st Appellant bought a property in Yuen Long (the “Property”). Without having sought the Respondent’s or the other brothers’ consent, the 1st Appellant completed the purchase with $11.48 million of the Estate’s money, representing 40.4% of the total purchase price. The 1st Appellant then executed a declaration of trust stating that he held the property on trust for the 2nd Appellant, his corporate vehicle, and eventually assigned the Property to the 2nd Appellant. 3. In October 2003, the 1st Appellant repaid the amount taken from the Estate with interest at 3% per annum (the “Repayment”). The Respondent became aware of the 1st Appellant’s use of the Estate’s money in 2005 and commenced proceedings in 2009, claiming to be entitled to a share of the profit the 1st Appellant derived from the acquisition of the Property. 4. The trial judge held that the 1st Appellant had misused the Estate’s funds and that the Respondent was entitled to a share of the profit. This was affirmed by the Court of Appeal. 5. The Court held that the present case is concerned with a fiduciary who made a profit by applying his principal’s money for his own benefit. It is a straightforward case where a trustee has committed a breach of trust. 6. As a matter of law, the 1st Appellant’s taking of the Estate’s money for his own purposes was an unauthorised disbursement. Although the 1st Appellant had intended to repay and did so within a short time, this does not convert the misappropriation into an authorised loan. 7. When the Respondent discovered the disbursement, he had the right to elect whether to reject or affirm it. Had he rejected it, the 1st Appellant would have been obliged to make good the deficit in the Estate’s account. However, the Respondent has affirmed the transaction by treating it as an authorised investment of the Estate’s money for the benefit of the Estate. 8. The right to affirm or reject the use of the money to purchase the Property belongs to the beneficiaries and not the trustee. By insisting that the Repayment discharged the 1st Appellant’s liability to reimburse the Estate, he is attempting to buy out the Estate’s interest, which the Respondent has elected to reject. 9. The policy behind a claim by a beneficiary for a breach of trust in the present case is to deter the trustee from using the trust fund as his personal bank account. Such conduct puts the trust fund at risk without hope of gain, and equity’s response is to insist that any profit is for the beneficiaries and any loss for the trustee. 10. Accordingly, the Court dismissed the appeal. 
1. At about 2:45 a.m. on 15 October 2014 the police carried out Operation Solarpeak to clear the protestors of the Occupy Central movement. When the police reached the end of the underpass on Lung Wo Road, Tsang Kin Chiu (“Tsang”) was seen on the planter above Lung Wo Road pouring liquid on the police. 2. The prosecution case was that Tsang was pulled down from the planter to the pavement and subdued by several uniform police officers. After successfully handcuffing Tsang the uniform police officers handed Tsang over to D1-D6, who escorted Tsang away in the direction of Lung Wo Road. On the way Tsang was picked up and carried face down. 3. Protestors were to be taken to the escort coaches and cars on Lung Wo Road for transport to the Central Police Station. D1-D6 did not carry Tsang direct to where the coaches and cars were parked but instead carried Tsang to the north side of the Lung Wui Road Government Building Pump Station East Substation (“the substation”). 4. On reaching the substation D1-D6 were joined by D7, who helped carry Tsang to the north side of the substation. On reaching the north side of the substation Tsang was dumped on the ground and assaulted by the defendants. 5. Tsang was then frogmarched to Lung Wo Road where he boarded a car. D5 and D6 sat on either side of Tsang and accompanied him to the Central Police Station. At the police station Tsang was taken to room 7 where he stayed until he was escorted by coach to the Police College in Wong Chuk Hang. While in room 7 D5, in the presence of D6, slapped Tsang on the face twice. 6. Part of what happened that night was captured on video by TVB, Apple Daily, ATV and Now TV and police video teams. Photographs from Apple Daily and Oriental Daily also showed Tsang being escorted and carried face down. Apart from the police video, the defence objected to the admissibility of the video and photograph evidence. 7. CCTV of the Central Police Station recorded two police officers taking Tsang into and out of the police station. The defence objected to the admissibility of the CCTV recordings. 8. The court ruled all the video evidence, photographs and CCTV recordings admissible in evidence. 9. The defendants elected not to give evidence or call any witnesses on their behalf. Charge 1 - Causing grievous bodily harm with intent 10. The main issues were whether Tsang was the person seen assaulted on the video footage; whether the defendants were the assailants; whether the defendants were part of a joint enterprise and whether Tsang suffered grievous bodily harm. 11. The court was satisfied that the video footage, photographs and CCTV recordings were authentic and accurately depicted the events of that morning. 12. The court was satisfied reliance could be placed on the evidence of Tsang that after he was subdued for pouring liquid on the police he was handed over to other police officers who escorted him, carried him by his arms and legs face down and took him to the substation (the dark corner) where they dumped him on the ground and assaulted him. 13. The court was satisfied that the video footage and photographs showed Tsang being apprehended by uniform police officers for pouring liquid on the police; being handed over to crime officers; and being escorted and carried face down to the substation where he was assaulted. 14. The court was satisfied that Tsang was handed over to D1-D6, who escorted and carried him face down to the substation. The court was satisfied that when they arrived at the substation there was no change in the persons seen carrying Tsang, save that the positions of the six had changed and that they had been joined by D7. 15. The court was satisfied that by carrying Tsang to the substation where he was dumped on the ground and immediately assaulted, the only inference to draw was that Tsang was carried to the substation to be assaulted. 16. The court was satisfied that D3 participated in the assault by stabbing Tsang; stamping on Tsang and kicking Tsang and that D4, D5, D6 and D7 also participated in the assault by kicking Tsang. 17. D1 and D2 did not take part in the assault but watched what happened. The court was satisfied that every police officer has a duty to prevent the commission of a crime, even by fellow police officers. The court was satisfied that by carrying Tsang to the substation and watching their colleagues beat up Tsang, D1 and D2, the two senior officers, intended to and did encourage and support D3-D7 to carry out the assault on Tsang, intending Tsang to sustain unlawful personal violence. 18. The court was satisfied that most of the injuries to the face; the left side of the neck; the left shoulder and clavicle; the left flank; the right flank and some of the circular reddish bruises on the chest and back, were sustained during the assault at the substation. The court was not however satisfied these injuries amounted to grievous bodily harm but was satisfied they amounted to actual bodily harm. The defendants were therefore found not guilty of causing grievous bodily harm with intent and guilty of assault occasioning actual bodily harm. Charge 2 – Common assault 19. The main issues were whether Tsang was slapped on his face inside the Central Police Station and, if so, whether D5 was the police officer who slapped him. 20. Tsang identified D5 in a direct confrontation. The defence objected to the admissibility of this evidence. The court was satisfied the holding of a direct confrontation was not unfair and that the direct confrontation was conducted fairly. 21. The court was satisfied reliance could be placed on the evidence of Tsang that the two police officers who escorted him in the car to the Central Police Station were D5 and D6 and that while in room 7 of the police station D5 slapped Tsang on the face twice. 
This appeal concerned five lots of land in Kowloon City (the “five Lots”). The Government Leases under which each of the five Lots are held (the “Government Leases”) contained restrictive covenants, including prohibition against industrial user, the building of a factory and, if houses were to be built, building more than one house on each Lot. Currently there stands a house on each Lot. The Respondent wishes to redevelop the five Lots by building a 26 storey composite building straddling across all five Lots. The building plans for the redevelopment were rejected by the Lands Department. The position of the Director of Lands was that the proposed redevelopment breached the relevant restrictive covenants. The Respondent applied to the court for a declaration that the relevant restrictive covenants had not been breached. The trial judge dismissed the application on the basis that a composite 26 storey building was not a “house” contemplated by the Government Leases. The Court of Appeal held to the contrary and allowed the Respondent’s appeal. The Court of Final Appeal (the “Court”) allowed the appeal and restored the orders made by the trial judge. The central question in this appeal was whether the Government Leases permit the construction of the proposed building. This involved construing the meaning of the word “house” in the restrictive covenants and ascertaining the intention behind such covenants. The Court emphasized the overall importance of context in statutory interpretation. It examined, among others, the clauses in and the relevant factual circumstances underlying the relevant Conditions of Exchange and the Government Leases. It held that the meaning of the word “house” in the restrictive covenants must have reference to those characteristics of the houses which were actually standing on the Lots at the time the Government Leases were entered into. On proper construction, the only permitted redevelopment under the Government Leases is the building of no more than one house on each Lot, with the characteristics of the houses in existence at the time the Government Leases were entered into and no other type of building. Therefore the proposed redevelopment by building a 26 storey building is prohibited. 
1. The appellant was charged with murdering his girlfriend (the “Deceased”) by chopping her to death. The evidence was that there were 64 separate wounds to the Deceased’s body. The appellant admitted to killing the Deceased but raised the defence of provocation. He was convicted of murder after a re-trial. 2. Following the grant of leave to appeal, the parties filed a joint written case agreeing that the appeal should be allowed. The only contested part of the appeal was whether, if the appeal were to be allowed, a further re-trial should be ordered. 3. Accepting the parties’ joint submissions, the Court allowed the appeal and quashed the conviction. The Court held that, in the particular circumstances of this case, there was a real risk of the jury adopting an impermissible line of reasoning when considering the objective limb of the provocation defence. It was therefore of such a nature as to require the special direction referred to in HKSAR v Liang Yaoqiang (2017) 20 HKCFAR 1 at paragraph [124] in order to counteract that risk. 4. On the issue of re-trial, the Court was satisfied that it would be in the interests of justice to order a re-trial in the present case. 5. Accordingly, the Court allowed the appeal, quashed the appellant’s conviction and ordered a further re-trial for murder. 
1. This case concerns the sale and purchase of a commercial property which was sub-sold three times. The 3rd sub-sale involved the Appellant (De Monsa) contracting to purchase the property from the 1st Respondent (Richly Bright) for $135,586,400 (paying a 10% deposit), but De Monsa failed to complete the purchase. The sub-purchasers up the chain also failed to complete their transactions. 2. Summary judgment was entered against De Monsa with Richly Bright held entitled to forfeit the deposit and additionally entitled to damages reflecting losses incurred by parties up the chain of contracts for the sale and purchase of the property. This resulted in De Monsa’s liability being assessed in the total sum of HK$40,783,238 plus interest and costs. These orders were upheld by the Court of Appeal in dismissing De Monsa’s appeal. 3. The question before this Court was whether liability in that total amount was correctly imposed. 4. The Court considered the principles governing the amount of damages recoverable for breach of a contract for the sale and purchase of property, especially where there were sub-sales. An award of damages aims to place the innocent party financially in the position he would have occupied if the contract had duly been performed, but within the limits of losses within the parties’ reasonable contemplation and losses for which responsibility has been contractually assumed. 5. The normal rule where the purchaser buying directly from the property owner fails to complete is for the award of damages to equal the difference between the contract price and the market value of the property at the completion date. However, damages payable to a sub-purchasing confirmor whose own sub-purchaser fails to complete are measured by the difference between the price at which the confirmor had contracted to purchase the property and the on-sale price agreed with his sub-purchaser. Where, as is usually the case, the purchaser or sub-purchaser has provided a deposit, the vendor’s remedy is confined to forfeiture of the deposit unless the loss flowing from the breach exceeds the value of the deposit. In the present case, the loss which Richly Bright suffered was less than the deposit. 6. The Court therefore held that the awards made below erroneously exceeded the amounts recoverable on a proper application of the limiting principles mentioned above. De Monsa had assumed responsibility to compensate Richly Bright by agreeing to the forfeiture of the deposit in the sum of HK$13,586,499 and, there being no additional recoverable loss, Richly Bright’s remedy was limited to such forfeiture. Accordingly, the Court allowed the appeal and set aside the Orders of the lower courts. Concurring judgment of Tang PJ: 7. Tang PJ was of the view that the Respondents’ claims, other than for the forfeiture of the deposit must fail because the normal rule for the recovery of damages is the difference between the contract price and the market value at the time of completion, and there was no claim for damages on such basis. The Respondents’ other claims were neither within the reasonable contemplation of the parties at the time of the contract nor were they for losses in respect of which the Appellant could be regarded as having undertaken responsibility. 
The Appellants, from the Democratic Republic of Congo and the Republic of Congo, claimed protection as refugees upon or shortly after their respective arrival in Hong Kong. They made their claims to the United Nations High Commissioner for Refugees (“UNHCR”) which processed them in accordance with the procedural standards for Refugee Status Determination (“RSD”). Although the PRC is a party to The United Nations Convention Relating to the Status of Refugees 1951 and the Protocol Relating to the Status of Refugees 1967, the PRC did not apply them to Hong Kong and it is the Government’s policy not to grant asylum. The critical decision for the Director of Immigration (“Director”) is whether to order the removal of such claimants and if so, to which country they should be removed. The Director’s practice is that pending RSD by UNHCR, a refugee claimant in Hong Kong would be permitted to remain and that if the claim succeeds, the refugee would not be repatriated pending resettlement. In this case, the UNHCR investigated and then denied the claims of the appellants. Their appeals to the UNHCR were also dismissed. The Appellants sought judicial review against the Director’s decision to return them to the countries of putative persecution. Both the Court of First Instance and the Court of Appeal dismissed their claims. The Court of Final Appeal allowed the appeal. The Court accepted the appellants’ argument that the Director’s decision to return a refugee claimant is subject to judicial review and must satisfy the high standards of fairness required. Given it is the practice of the Director to have regard to humanitarian considerations when deciding whether or not to exercise his power to remove a refugee claimant, and that whether such claim is well-founded is a relevant humanitarian consideration, the Director must independently determine whether the claim is well-founded. The Court noted that there is a Memorandum of Understanding between the Government and the UNHCR, which provides that the Government would send representatives to the UNHCR to perform RSD duties and the UNHCR shall take full responsibility for the final determination of refugee status of the claimants. The Court held that, while the Director is entitled to give weight to a RSD by the UNHCR, the Director must independently consider the exercise of his power of removal in each case on its own merits. The Court affirmed that the exercise of administrative powers by the Government is necessarily subject to some limits, of which the court has the power to review based on the rule of law. However, the Court acknowledged that judicial review is also subject to a number of limitations, such as those arising from the principles of separation of power and the requirement of justiciability, which may deny jurisdiction to the courts. In this case, the discretion which the Director enjoys in deciding whether to deport refugee claimants is not unfettered, and the rule of law dictates that the decision must be made in accordance with high standards of fairness and subject to judicial review. 
1. The Appeal Committee of the Court of Final Appeal dismissed the application by the Secretary for Justice for leave to appeal from the decision of the Court of Appeal in this matter concerning the admission to the Hong Kong Bar of Mr Timothy Owen KC to represent Mr Lai Chee Ying in his trial on charges of conspiracy in relation to seditious publications and conspiracy to collude with a foreign country or external elements to endanger national security. 2. The Secretary for Justice had, together with the Bar Council, opposed the application for the admission of Mr Owen KC to represent Mr Lai. The Chief Judge of the High Court, sitting as a judge of first instance, had exercised his discretion in favour of Mr Owen KC’s admission, applying long-standing principles based on the public interest. 3. The Secretary for Justice, but not the Bar Council, appealed to the Court of Appeal, essentially challenging the weight attributed to relevant aspects of the public interest involved in the Chief Judge’s exercise of discretion. The Court of Appeal dismissed that appeal, concluding there was no valid basis to interfere with the Chief Judge’s exercise of discretion and confirming the admission of Mr Owen KC. 4. The Secretary for Justice then applied to the Court of Appeal for leave to appeal to the Court of Final Appeal. At that stage, the Secretary for Justice advanced a fundamentally different case seeking to challenge the established principles for admissions of overseas counsel for a specific case and contending instead for a blanket ban on such admissions in cases involving national security, subject only to undefined exceptional circumstances. The Court of Appeal refused to grant leave to appeal on this new argument. 5. The Secretary for Justice renewed his application for leave to appeal to the Appeal Committee of the Court of Final Appeal. 6. In dismissing the application, the Appeal Committee applied the Court’s well-established principle that a new point will not be permitted to be raised on appeal where it bears on fairness to the other party and on the Court’s ability properly to adjudicate on the matter. In the present case, both these considerations weighed against the grant of leave to appeal since the Secretary for Justice was seeking to raise radically new points which, notwithstanding their obvious importance, had not been mentioned or explored either before the Chief Judge or the Court of Appeal. The Appeal Committee held that the Secretary for Justice had not made out a proper case for the grant of leave to appeal and so dismissed the application. 7. Since the application was dismissed on the basis of the principle governing the raising of new points, it was not necessary for the Appeal Committee to enter into any discussion of the Court of Appeal’s views of the merits of the Secretary for Justice’s underlying arguments, which were in any event entirely case-specific and not binding on subsequent cases. 8. The Appeal Committee noted that the courts of the HKSAR were fully committed to safeguarding national security and to acting effectively to prevent, suppress and impose punishment for any act or activity endangering national security as required by Article 3 of the National Security Law. That duty would be carried out whenever national security issues were properly raised and duly explored, enabling the courts to undertake a proper adjudication of those issues. Thus, in relation to admissions of overseas counsel for a specific case, where national security considerations properly arose, such considerations were plainly of the highest importance to be taken into account. In the present case, however, the Secretary for Justice had fundamentally changed his case only at the stage of seeking leave to appeal to the Court of Final Appeal, had raised undefined and unsubstantiated issues said to involve national security which were not mentioned or explored in the courts below, and no appropriate basis had been made out for the grant of leave to appeal. 
1. This inquest is to inquire into the cause of death, the circumstances connected with the death and to facilitate the coroner to make practicable recommendation to prevent future tragedy. It is not concerned with the fault, civil liability or compensation here. The law prohibits any conclusion being framed in such a way as to determine any question of civil liability. 2. All eye witnesses were not available. The two reports issued by the Egyptian aviation and prosecution authorities were received as evidence. The expert evidence of Mr. Chadwick (the General Aviation Flight Standard Officer (Balloon Operations) of UK Civil Aviation Authority was most helpful, impartial and professional. 3. It was the deadliest hot ballooning disaster in history resulted in 19 deaths with 9 Hong Kong citizens. All nine deceased died in the morning of 26 Feb 2013 during a hot-air balloon ride over Luxor City when the balloon caught fire during the flight after the landing procedure has started. The fire was due to hose fuel leak at the upper portion of the forward right hose connected to the burner number 193. Such fire also caused serious and direct injury to the balloon pilot who was unable to do anything to control the fire. The medical causes of death for all of the deceased were multiple injuries and burns. The conclusion as to deaths of all deceased is “deaths by accident”. 4. Recommendations to Travel Industry Council (TIC) 1) TIC to conduct a thorough research and collect data from the industry so as to list out popular activities operated in different countries offered by travel companies involving certain degree of risk. TIC to categorize the degree of risk in respect of different activities provided in different countries for the industry as reference. Such list should be updated from time to time; 2) TIC to set out clear guidelines to travel companies as to the necessary information of activities involving certain degree of risk to be provided to customers before taking part in such activities; 3) TIC to set out clear and specific guidelines to travel companies that customers should be reminded that their travel insurance may not cover activities involving certain degree of risk; 4) TIC to look into travel companies’ duty and responsibility in selecting and supervising the local service providers and review the existing guidelines when destination management companies are engaged; 5) TIC to set out new guidelines on travel companies’ duty and responsibility to supervise destination management companies; 6) TIC to set out safety guidance and advertise to customers as to the importance of obtaining details of travel policy insurance and information on activities involving risk before enrolment. 5. Recommendations to Kuoni 1) Kuoni to obtain sufficient information from local service providers and conduct thorough risk assessment on activities involving certain degree of risk provided to customers before offering the same; 2) Kuoni to conduct thorough evaluation after every serious accident taking place during tours provided by them so as to find out the cause of the accident and consider if there is anything that can be done to improve the quality and safety of service provided to customers. 3) Kuoni to provide sufficient information to customers about activities involving certain risk and remind them in more specific and clear terms that activities involving risk may not be covered by their travel insurance; 4) Kuoni to provide more training and information to front desk staff, including receptionists and tour escorts, so that they can be better equipped to explain the risk involved in activities provided by them; 5) Kuoni to set out clear criteria for selecting destination companies and local service providers with first hand information and to closely monitor the service provided by destination management companies and local service providers. 6. Both TIC and Kuoni need to reply the Coroner in writing in three months’ time as to 1) whether the above recommendations are accepted and if yes 2) what steps have been taken to implement the recommendations and 3) reasons if the recommendations are not accepted. 
1. These are two applications for judicial review seeking to impugn the Emergency Regulations Ordinance (Cap 241) (“ERO”) and the Prohibition of Face Covering Regulation (Cap 241K)(“PFCR”) made thereunder as being invalid and unconstitutional. 2. By Ground 1, the applicants contend that the ERO is unconstitutional because it amounts to an impermissible grant or delegation of general legislative power by the legislature to the Chief Executive in Council (“CEIC”) and contravenes the constitutional framework under the Basic Law. The court holds that the ERO, insofar as it empowers the CEIC to make regulations on any occasion of public danger, is incompatible with the Basic Law, having regard in particular to Arts 2, 8, 17(2), 18, 48, 56, 62(5), 66 and 73(1) thereof. The court leaves open the question of the constitutionality of the ERO insofar as it relates to any occasion of emergency. 3. As to Ground 2, the court holds that the ERO was not impliedly repealed by s 5 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”). Insofar as it is invoked in situations not falling within the kind of public emergency referred to in the HKBORO, the Bill of Rights is not suspended and the measures adopted will have to comply with it. 4. On Ground 3, the court holds that the ERO does not in itself fall foul of the “prescribed by law” requirement (ie the principle of legal certainty). Where regulations and measures are adopted under the ERO that curtail fundamental rights, the entire relevant body of law including the regulations and measures have to be taken together to see whether they meet the requirement of sufficient accessibility and certainty. 5. Under Ground 4, the applicants contend that the general words in s 2(1) of the ERO are not to be construed as allowing the Government to adopt measures that infringe fundamental rights of the individual and that the PFCR is therefore beyond the power conferred on the CEIC by the ERO. The court finds that it is not necessary to deal with this Ground and does not express any view on it. 6. Under Ground 5A, the applicants contend that s 3 of the PFCR fails to satisfy the proportionality test (as explained in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, §§134‑135). The court holds that the provisions in s 3(1)(a), (b), (c) and (d) of the PFCR are rationally connected to legitimate societal aims that the respondents intend by those measures to pursue but the restrictions that sub‑paragraphs (b), (c) and (d) impose on fundamental rights go further than is reasonably necessary for the furtherance of those objects and therefore fail to meet the proportionality test. 7. Under Ground 5B, the applicants contend that s 5 of the PFCR fails to satisfy the proportionality test. The court holds that the measure introduced by s 5 of the PFCR is rationally connected to the legitimate societal aims pursued but the restrictions it imposes on fundamental rights also go further than is reasonably necessary for the furtherance of those objects and therefore fail to meet the proportionality test. 8. In the light of these conclusions, there will be a further hearing for the parties to make submissions on the appropriate relief and costs. 
BACKGROUND TO THE APPEAL: 1. This appeal concerns Standing Order 41-05 (“SO 41-05”), issued by the Commissioner of Correctional Services (“Commissioner”) to regulate the hair length of prisoners. SO 41-05 requires the hair of male prisoners to be cut “sufficiently close”. As for the hair of female prisoners, it shall not be cut shorter than her style on admission to prison without her consent, unless otherwise recommended by a Medical Officer. Accordingly, female prisoners were given a choice that male prisoners did not have. 2. The appellant was imprisoned for four weeks in June 2014 after being convicted of several charges. Whilst in custody, he was required to have his hair cut pursuant to SO 41-05 (“Decision”). 3. The appellant challenged the lawfulness of both the Decision and SO 41-05 on the grounds that they (a) constituted direct discrimination under s.5 of the Sex Discrimination Ordinance (Cap.480) (“SDO”) and (b) were contrary to art.25 of the Basic Law. Essentially, the issue was whether male prisoners like the appellant were treated less favourably than female prisoners. 4. The Court of First Instance held in favour of the appellant on both grounds (a) and (b) above, allowing his application. On the respondent’s appeal, the Court of Appeal allowed the respondent’s appeal. In essence, it held that the Commissioner applied conventional standards of appearance to both male and female prisoners, hence male prisoners were not treated less favourably. The appellant appealed to the Court of Final Appeal. 5. The issue before the Court is whether SO 41-05 by requiring male but not female prisoners to have their hair cut “sufficiently close”: (a) constitutes direct discrimination under s.5(1)(a) of the SDO, thus unlawful under s.38 SDO; (Question 1) and/or (b)is inconsistent with the right to equality before the law under art.25 of the Basic Law, thus unconstitutional (Question 2)? JUDGMENT: 6. The Court unanimously allowed the appellant’s appeal. REASONS FOR THE JUDGMENT: Question 1 7. The Court held that SO 41-05 constitutes direct discrimination under s.5(1)(a) SDO, and is hence unlawful under s.38 SDO. 8. Establishing direct discrimination under s.5(1)(a) SDO involves four elements: (a) there is a difference in treatment between one person and another (of a different sex); (b) the relevant circumstances between the two persons are not materially different; (c) the complainant is treated less favourably than the compared person; and (d) such difference in treatment is on the basis of sex. 9. It is not disputed that elements (a), (b) and (d) are established under SO 41-05. The central issue is element (c), which is whether there has been “less favourable treatment” of male prisoners on account of the denial of choice to them. On its face, the fact that male prisoners are denied a choice as to their hair length, suggests that they are treated less favourably than female prisoners. The burden shifts to the Commissioner to explain why that is not so. 10. The Commissioner explained that SO 41-05 ensures custodial discipline which requires reasonable uniformity in appearance amongst prisoners. Such uniformity is achieved through applying conventional standards of appearance in Hong Kong society to both genders in prison. 11. The Court rejected the Commissioner’s submission. 12. First, there is no reasonable connection between ensuring custodial discipline and asserting conventional standards of hair length. No proper explanation had been given by the Commissioner. Without such connection shown, the Commissioner cannot proceed to explain why there is such differential treatment and why that is not less favourable treatment. 13. Second, as a matter of evidence, the Commissioner failed to show that SO 41-05 reflects the conventional standards of appearance. The Commissioner failed to provide any bases for suggesting that in Hong Kong society, the conventional hairstyle for men is short, whilst it may be long or short for women. Question 2 14. Given that the Court has allowed the appeal on Question 1, it is unnecessary to deal with Question 2, although on the facts of the present case, the outcome would be the same under art.25 of the Basic Law as under s.5(1) of the SDO. 
1. This was an appeal against the Appellant’s conviction for conspiracy to defraud. It arose as a consequence of the Court’s judgment in HKSAR v Wan Thomas [2018] HKCFA 15, (2018) 21 HKCFAR 214. 2. The Appellant’s conviction arose from the same case as that in HKSAR v Wan Thomas. The Appellant was one of the nine defendants jointly charged with the offence. The prosecution alleged that the defendants had conspired to defraud officers of the Correctional Services Department (“CSD”) by dishonestly and falsely representing to those officers that each of them was a “friend” of an inmate remanded at Lai Chi Kok Reception Centre in order to induce the officers to grant them permission to visit the relevant inmates. 3. The Appellant, together with five other defendants, were convicted after trial by the magistrate. The appeals to the Court of Appeal by four of the defendants, including the Appellant, were dismissed (their original appeal was ordered to be transferred from the Court of First Instance to the Court of Appeal). While the Appellant did not pursue a further appeal to this Court, the 1st defendant (D1) and 2nd defendant (D2) appealed to this Court which led to the judgment of the Court in HKSAR v Wan Thomas. 4. The Court held, in HKSAR v Wan Thomas, that the appeals of D1 and D2 should be allowed and their convictions quashed. The Court reasoned that on a proper construction of the relevant rules of the Prison Rules (Cap. 234A), D1 and D2 were “friends” of the prisoners whom they visited. Hence, they did not make misrepresentations to the CSD officers as to their relationship to those prisoners. Furthermore, the Court held that there was insufficient evidence at trial to prove that the defendants had agreed together to induce the CSD staff to admit them as visitors nor that they had made any misrepresentation dishonestly. 5. In the light of the Court’s judgment in HKSAR v Wan Thomas, the Appellant applied for leave to appeal to the Court of Final Appeal. On the prosecution’s indication that it was prepared to consent to the application, leave was granted and directions were given for the filing by the parties of a Joint Case. 6. The Court accepted the parties’ joint submission that the Appellant’s conviction was unsustainable as a matter of law for the same reasons that led to the appeals of D1 and D2 being allowed in HKSAR v Wan Thomas. Additionally, of the original nine defendants, five had already had their convictions quashed. Substantial and grave injustice would result from the Appellant remaining convicted. DISPOSITION 7. Accordingly, the appeal was unanimously allowed and the Appellant’s conviction quashed. 
1. The 1st and 2nd Appellants were executive directors of Upbest Group Limited (“Upbest”), a company listed on the Stock Exchange of Hong Kong (the “Stock Exchange”) involved in the business of money lending. The 3rd Appellant and his wife, the 4th Appellant, were directors and shareholders of Grand Field Group Holdings Limited (“Grand Field”), also a company listed on the Stock Exchange. 2. The 3rd and 4th Appellants, in order to bolster the falling share price of Grand Field, came up with a scheme to give a false impression of profitable activity. A company, Sino Richest Limited (“Sino Richest”), was incorporated to acquire the interest in a gas joint venture in Chongqing. Grand Field purported to acquire 75% of Sino Richest, the consideration being the issuing of 315 million Grand Field shares to the shareholders of Sino Richest, including a company called Logistic China Enterprise Limited (“Logistic China”). 3. In fact the 3rd and 4th Appellants never intended to proceed with the joint venture. In response to the Stock Exchange’s queries, the 3rd and 4th Appellants pretended that Grand Field had sold its interest in the joint venture back to Logistic China. This was the basis of their conviction on the conspiracy to defraud charge. 4. The Appellants put in place a circular fund flow arrangement to create a false picture that there had been a real re-acquisition by Logistic China from Grand Field. HK$32 million originated from Upbest and passed through a number of parties, including Logistic China, Ka Fong Industrial Limited (a subsidiary of Grand Field) and the 3rd Appellant. The money would eventually return to the source, Upbest. In relation to these circular payments, the Appellants were charged with conspiracy to deal with property known or believed to represent proceeds of an indictable offence (the “money laundering charge”), contrary to sections 25(1) and (3) of the Organized and Serious Crimes Ordinance (“OSCO”). The question in the Court of Final Appeal was whether the offence of money laundering could be committed where a person dealt with funds that were known not to derive from any offence but which were used in the furtherance of such an offence. 5. Section 2(6)(a) of OSCO relevantly defines “a person’s proceeds of an offence” as “any payments or other rewards received by him at any time… in connection with the commission of that offence”. The Respondent argued that section 2(6)(a) widens the concept of “proceeds of an indictable offence” in section 25(1) to extend to money or property received in circumstances in which such receipt may be said to be “in connection with” the commission of an indictable offence even if that money or property is known not to be tainted as a benefit received on account of the commission of such offence. 6. The Court of Final Appeal rejected the Respondent’s wide interpretation of OSCO. It held that the ordinary meaning of “proceeds” was money or property derived from the commission of an offence. Section 25A of OSCO imposes a duty to report suspected money laundering offences and makes express provision to cover property which “was used in connection with” or which “is intended to be used in connection with” an indictable offence, suggesting that the Respondent’s wide interpretation was wrong. The Court of Final Appeal also gave due weight to the words “or other rewards” in the phrase “payments or other rewards”. The payment must be in the nature of a reward, linking the payment and the commission of the offence. Further, the Court of Final Appeal accepted that, interpreting sections 2(6)(a) and 25(1) in the light of OSCO’s fundamental purpose, the word “proceeds” had to be understood to refer only to money or property which represented an economic benefit gained by the relevant defendant in connection with the commission of the underlying indictable offence. The HK$32 million from Upbest was not a benefit received in connection with the conspiracy to defraud charge and so did not represent the proceeds of that offence. In addition, adopting the Respondent’s wide interpretation would have detrimental policy consequences. 7. Accordingly, the Court of Final Appeal held that the money laundering charge was not established and unanimously allowed the appeal. 
1. The police seized 2 mobile phones from the plaintiff in a search of his residence in 2020. The plaintiff commenced proceedings to have the seized materials returned to him. One of his claims was that the seized materials contained journalistic material. As a result, the phones were ordered to be sealed by the judge, pending determination of the plaintiff’s claims. 2. In 2022, the police obtained from a designated magistrate a warrant under the Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (the Rules). This warrant authorized the searching of the digital contents in the phones seized by the police, including those subject to the claim on journalistic material, but it provided that the phones could only be unsealed by a further order of the judge. 3. To give effect to the warrant, the police applied to the judge by summons for the phones’ contents to be made available. In opposition, the plaintiff applied for leave for judicial review against the validity of the warrant, on the ground that the term “specified evidence” (as defined in section 1 of Schedule 1 of the Rules) does not cover journalistic material. The judge dismissed the plaintiff’s leave application and allowed the summons by the police. The plaintiff appealed both decisions to the Court of Appeal. 4. The Court of Appeal observed that the proper context in which the term “specified evidence” is to be interpreted is as follows:- (1) the Rules authorize a warrant to be issued by a magistrate for a police officer to search “specified evidence”; and “specified evidence” is defined to mean “anything that is or contains, or that is likely to be or contain, evidence of an offence endangering national security” (section 1 of Schedule 1); (2) the Rules are delegated legislation made pursuant to The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL). One primary objective of the NSL is to effectively suppress, prevent and punish offences and acts endangering national security. The legislative purpose of the Rules must be consistent with the NSL, and a proper interpretation of “specified evidence” must give effect to that purpose; (3) on the other hand, the NSL requires the protection of fundamental rights (NSL Art.4). Journalistic material concerns the freedom of the press, which is a facet of freedom of expression, and is protected as a fundamental right under the Basic Law and the Hong Kong Bill of Rights Ordinance. The immense importance of journalistic material to freedom of the press is central to the construction of “specified evidence”; (4) the NSL also emphasizes adherence to the principle of the rule of law (NSL Art.5). This requires that if a statute does not expressly or by necessary implication override or restrict fundamental rights, it will not be construed as doing so; (5) the NSL is intended to operate in tandem with the laws of the HKSAR, seeking convergence, compatibility and complementarity with local laws (subject to NSL Art.62 which gives priority to NSL in case of inconsistency). This indicates that the Rules and local laws on search are to work as a coherent whole, and consequently local laws powerfully informs the construction of “specified evidence” in the Rules; (6) in exercising the discretion of issuing a warrant under the Rules, a magistrate is to be guided by the primary objective of the NSL, the legislative purpose of the Rules, the requirements for the protection of the freedom of the press, adherence to the principle of the rule of law, and local laws on search, as set out above. 5. As for local laws, the Court observed that:- (1) under the common law, in dealing with a search warrant for journalistic material, the court performs the judicial gatekeeping role of guarding against unlawful and arbitrary interference with fundamental rights that a search warrant might entail, balancing the competing public interests in protecting such material on the one hand, and crime prevention and law enforcement objectives on the other hand; (2) in addition, search and seizure of journalistic material under statutory provisions is generally subjected to the regime in Part XII of the Interpretation and General Clauses Ordinance (Cap 1). Under this regime, the court is required to look at all the circumstances of the case, and to consider whether it would be in the public interest that the seized material should be made use of for the purpose of the relevant investigation. Public interest is relevant at both the issue and execution stages of the warrant. This regime does not have the effect of abrogating the common law, and therefore it is not the only lawful regime to address claims based on journalistic material; (3) in performing its judicial gatekeeping role, the court has to balance the public interest in deciding whether to issue the warrant with or without conditions, and may set aside or vary the warrant based on public interest upon the application by the person affected by it. 6. Based on these observations, and referring to well established local and overseas case law, the Court reiterated that journalistic material is not immune from search and seizure for the purpose of criminal investigation. The Court further held that:- (1) despite its importance to the freedom of the press, the protection afforded to journalistic material is not absolute. Although always subject to the protection and procedural safeguards based on public interest and vigilant judicial scrutiny, it is not immune from search and seizure in investigation of any criminal offence, and the same must be true for offences endangering national security as a matter of principle; (2) to serve the legislative purpose of furthering the primary objective of the NSL to effectively suppress, prevent and punish offences endangering national security, the police must be able to carry out effective search on anything, including journalistic material, that contains or is likely to contain evidence of an offence endangering national security. Were such material excluded from the definition of “specified evidence”, it would unduly limit the scope and hence reduce the effectiveness of police investigation. That would not be conducive to the said legislative purpose; (3) such an interpretation does not diminish the protection afforded to the freedom of the press by local laws or violate the principle of legality. For the Rules operate in tandem with local laws on search as a coherent whole. The same protection and safeguards based on public interest for journalistic material under local laws equally apply to a warrant under the Rules. The magistrate will perform the same judicial gatekeeping role in exercising his discretion under the Rules as he would under local laws, to ensure that the search and seizure of journalistic material is justified in the public interest. 7. The Court of Appeal therefore dismissed the plaintiff’s appeals, holding that “specified evidence” as defined in the Rules, in its proper context and as borne out by its natural and ordinary language, covers journalistic material. 
1. The Respondent was charged with the offence of unlawful assembly upon trailing closely behind a plainclothes police officer (“PW1”) with three other persons and using a video camera continuously to make a recording. 2. After trial, Principal Magistrate Don So (“the magistrate”) found the Respondent guilty and imposed a sentence of 3 months’ imprisonment. The magistrate found, amongst other things, that (1) the Respondent consciously assembled with the other three defendants; (2) their acts insulted and provoked PW1, in particular, the Respondent’s conduct of filming PW1 was provocative; (3) such acts were likely to cause other persons reasonably to fear that those assembled would commit a breach of the peace or provoke other persons to commit a breach of the peace; (4) these acts cumulatively had a greater intimidating effect; and (5) the Respondent was aware of the harassment, threat and provocation directed towards PW1 at the scene and he deliberately participated in the assembly. 3. On appeal to the Court of First Instance, A Wong J (“the Judge”) allowed the Respondent’s appeal against conviction because he could not draw the irresistible inference that the Respondent had the participatory intent. 4. The Court reiterated the law on unlawful assembly previously discussed in HKSAR v Lo Kin Man. With respect to the participatory intent for the offence, it was held that two ingredients are needed to satisfy the requirement: (a) the defendant intended to become part of the assembly; and (b) while he or she assembled together with these other participants and was aware of the related conduct of other participants, he or she intended to engage in or act in furtherance of the prohibited conduct under Section 18(1) of the Public Order Ordinance (Cap 245). 5. This Court held that in the present case the unlawful assembly came into being as the Respondent joined the other defendants in the group trailing closely behind PW1. He had committed a prohibited act under Section 18(1) by the way and the circumstances in which he filmed PW1 in the unlawful assembly. 6. According to the findings of the courts below, the Respondent had the intent to become part of the group of people who pestered PW1 at close distance. This finding was supported by the video recordings which showed that the Respondent rushed towards PW1 together with others in the group. Further, as found by the magistrate and affirmed by the Judge, the Respondent was able to film without objection or fear of reprisal by the others in the group. Thus, ingredient (a) was established. 7. As the Respondent was aware of the related conduct of the other participants and intended to engage in his own prohibited act of filming PW1 while assembled with the other defendants. Thus, ingredient (b) was also established. 8. This is clearly not a case of mere presence or spontaneous filming by an innocent bystander. Had the Judge properly directed himself on requirement of participatory intent, there is nothing to preclude him from drawing the irresistible inference that the Respondent had the requisite intent. 9. Accordingly, this Court unanimously allowed the appeal and restored the conviction and sentence against the Respondent. 
1. Poon Lok To Otto (the “Husband”) and Kan Lai Kwan (the “Wife”) were married in 1968. The Husband became very successful with his business from the mid-1990s. Analogue Holdings Ltd (“Analogue”) was incorporated to be the holding company of his business. In July 1995, a discretionary trust based in Jersey was set up (the “Trust”). The Husband was the Settlor, Protector and a potential beneficiary. HSBC International Trustee Limited was the Trustee. The Husband settled 84.63% of the shares of Analogue in the Trust. 2. In February 2009, the Husband petitioned for divorce on the basis of two years’ separation. The Wife did not defend the proceedings. The decree nisi was pronounced in May 2009 and made absolute in September 2010. The Wife applied for ancillary relief. She argued that the equal sharing principle should be applied to the entire value of the Trust, not only to two-thirds of that amount (which the Husband contended for). She also claimed that they had been separated only since 2008. The Husband, on the other hand, claimed that they had been separated since 2001. This was relevant due to the substantial profits generated by Analogue after 2001. 3. To decide whether the Trust was a financial resource of the Husband, the Court of Final Appeal adopted the test of asking whether, if the Husband were to request the Trustee to advance the whole or part of the capital or income of the Trust to him, the Trustee would, on the balance of probabilities, be likely to do so. Considering the creation and terms of the Trust, the Husband’s letters of wishes, the nature of the Trust assets and previous distributions made by the Trustee, the Court held that there was clear evidence of the overwhelming likelihood that the Trustee would, if requested by the Husband, advance the whole or part of the capital or income of the Trust to him. Accordingly, the Court of First Instance and the Court of Appeal were wrong to hold that the matrimonial assets included only a two-thirds interest in the value of the Trust. The entire Trust fund should be regarded as a financial resource available to the Husband. 4. Disagreeing with the finding of the Court of First Instance that the Husband and the Wife separated in 2001, the Court of Final Appeal held that as a matter of fact their marriage continued until they finally separated in 2008. The Court of Final Appeal also disagreed with the finding of the Court of Appeal, based on the doctrine of estoppel, that they separated in 2007. Whether the Husband and the Wife had separated was a question of fact. The Court was subject to a statutory duty to have regard to all the circumstances of the case. It was not estopped from finding that the Husband and the Wife in fact separated in 2008. 5. On the question of whether there should be a departure from the equality principle, the Court of Final Appeal held that the increased profits of Analogue did not provide a ground for such a departure. Those profits arose out of the business which had been built up during the Husband’s and the Wife’s marriage, in respect of which the Wife could legitimately assert an unascertained share. 6. Accordingly, the Court of Final Appeal unanimously allowed the Wife’s appeal and dismissed the Husband’s appeal. 
1. On 3 November 2016, the Appellant was driving a private car when his offside front wheel pressed against the left foot of a pedestrian who was crossing the road from a safety island. 2. On 1 June 2018, the Appellant, acting in person, pleaded guilty to a charge of careless driving contrary to section 38(1) of the Road Traffic Ordinance (Cap. 374). After the summary of facts was read and agreed, the Appellant was convicted by the Magistrate. The Appellant then contended during mitigation that although he was careless, (1) the pedestrian unexpectedly extended her foot onto the road and he was unable to stop his car; (2) he did not know how the incident could have been avoided; (3) he could not avoid the pedestrian despite already stopping his car immediately, and (4) he had already stopped the car immediately. 3. The court adjourned the case to obtain a community service report before sentencing. It was stated in the report that the Appellant maintained his story of how the accident happened, and insisted he was innocent, and that he had only pleaded guilty in order to save time. 4. In the meantime, the Appellant engaged counsel and made an application to the court to reverse his guilty plea on the ground that his plea was equivocal and the conviction could not stand. 5. On 6 July 2017, the Magistrate dismissed the Appellant’s application and held that because the Appellant understood the charge, admitted the facts and upon the court’s enquiry also made an admission to the elements to the charge, there was thus no inconsistency with his guilty plea, which was an unequivocal one. 6. On appeal, the Court of First Instance upheld the Appellant’s conviction. The Judge observed that the only issue was whether the Appellant’s plea was equivocal. As the Magistrate had clarified with the Appellant during his mitigation submission and confirmed his admission of driving carelessly, there was nothing improper with the way the Magistrate dealt with the matter. The statements the Appellant made to the probation officer, as stated in the community service report, were irrelevant. 7. The Appellant brought a further appeal to this Court against the decision of the Court of First Instance. ISSUES 8. The Court clarified the legal principles on the reversal of guilty pleas. 9. Firstly, a plea is equivocal if a defendant adds to his plea of guilty a qualification which, if true, may show that he is not guilty of the offence charged. An equivocal plea cannot be accepted and cannot form the basis of a conviction. A conviction resulting from the erroneous acceptance of an equivocal plea is a nullity and must be set aside; no discretion is involved. 10. Secondly, whether a plea is equivocal is to be determined at the time it is made. The terminology employed in some previous case law was wrong and must be clarified: anything that is said or comes to light after conviction cannot and does not retrospectively turn an unequivocal plea into an equivocal one; it instead may form the basis of an application to invoke the court’s discretion to allow a reversal of plea. In the current appeal, the Appellant’s plea was an unequivocal one. His allegations during mitigation and to the probation officer did not turn his unequivocal plea into an equivocal one. 11. Thirdly, a conviction is not complete and the court’s jurisdiction over the matter does not lapse until sentence is passed. Where, as in the current appeal, material emerges after conviction but before sentence which, if true, may show that the defendant is not guilty of the offence charged, the court has a discretion to allow a change of plea. 12. Fourthly, such discretion is an unfettered one. The way the court exercises it must turn on the facts, and the overriding consideration must be the interests of justice. In the current appeal, where material emerged in mitigation and reports suggesting that the Appellant might not be guilty of the offence charged, the interests of justice would weigh heavily in favour of allowing a reversal of plea. Further, while an equivocal plea is defined by the threshold of a qualification that, if true, may show that the defendant is not guilty of the offence charged, for the purposes of invoking the court’s discretion on allowing a reversal of plea, the threshold need not be so and could be lower. DISPOSITION 13. Accordingly, the appeal was unanimously allowed and the Appellant’s conviction was quashed. As the Appellant has already served his sentence of 150 hours of community service, retrial was exceptionally not ordered. 
1. The Appellant was directed to go through a customs inspection when she arrived at Hong Kong International Airport from Kuala Lumpur. During the inspection carried out in her presence, white powder was discovered in the lining of her suitcase. Tests conducted on the spot revealed that the white powder was heroin and the Appellant was arrested and cautioned. Upon being asked what the white powder was, the Appellant responded orally in Cantonese, “我諗呢一啲係毒品啩”, translated in English as “I suppose this is dangerous drug”. Before the Court of First Instance, whether the Appellant’s response was capable of an admission as to knowledge was left to the jury. The jury convicted the Appellant of trafficking in a dangerous drug. 2. The Court of Final Appeal observed that the Appellant gave her response after her suitcase had been searched in her presence and had heard the drug results of the white powder testing positive. Furthermore, the addition of the “啩” final particle was a non-committal response by the Appellant and was not intended to be an admission of knowledge. 3. The Court concluded that the Appellant’s response was incapable of being an admission. Even if the statement was treated as possibly being an admission, it was so ambiguous that the probative value would be extremely limited and outweighed by risk of unfair prejudice from leaving it to the jury. Thus, the trial judge should have considered exercising his residual discretion to exclude the ambiguous statement as a possible admission. 4. Accordingly, the appeal was allowed and a re-trial ordered. 
1. The Appellant offered money to persons associated with localist political organizations as an inducement for them either to stand themselves, or to get others to stand, as a candidate in the 2015 Hong Kong District Council Election. 2. The Appellant was convicted before the District Court of offences relating to corrupt conduct at an election, contrary to sections 6 and 7(1) of the Elections (Corrupt and Illegal Conduct) Ordinance, Cap 554 (“ECICO”). 3. Section 7(1) of the ECICO (“s7(1)”) states that a person engages in corrupt conduct at an election if he/she “corruptly” does specified acts. Such specified acts include the offer, solicitation or acceptance of an advantage as an inducement for a person to, or to get a third person to, stand or not stand as a candidate at an election. 4. The sole issue on appeal before the Court of Final Appeal was the meaning of the word “corruptly” in s7(1), on which the Trial Judge and the Court of Appeal (“CA”) differed in their interpretations. The Trial Judge held that “corruptly” meant that a defendant must intend not only to do a specified act under s7(1), but also to prevent a fair, open and honest election. The CA held that it required only that a defendant intentionally does a specified act which results in personal gain. 5. The Court held that neither interpretation was correct. 6. The Court first observed that section 3 of the ECICO lays down the legislative objectives of promoting fair, open and honest elections, and prohibiting corrupt and illegal conduct in relation to elections. Therefore, conduct that is “corrupt” is intended to mean conduct which is inconsistent with the attainment of fair, open and honest elections. 7. In light of this legislative purpose, the Court held that the word “corruptly” in s7(1) is not a mental element. It does not require proof of specific intent on the part of a defendant to prevent a fair, open and honest election. Instead, it functions to define what amounts to “corrupt conduct at an election” by confining the specified acts in s7(1), which involve the offer, solicitation or receipt of “an advantage”, only to those acts which carry an objective tendency to undermine a fair, open and honest election. A defendant is not necessarily guilty under s7(1) by engaging in any of the specified acts if the act does not have the requisite tendency. 8. The Court concluded that the Appellant was guilty as charged because he intentionally engaged in specified acts under s7(1) “corruptly” in that his conduct involved inducing his co-defendants to stand for election for personal gain in order to divert votes away from targeted candidates with a view to manipulating the election results against them in a way which tended to undermine a fair, open and honest election. DISPOSITION: 9. The Court unanimously dismissed the appeal. 
Facts 1. The present cross-appeals concern a dispute arising out of a commercial agreement made between Xiamen Xinjingdi Group Co Ltd (the “Plaintiff”)and Eton Properties Limited and Eton Properties (Holdings) Limited (collectively “D1-D2”) in July 2003 (the “Agreement”). 2. The Agreement provided that the Plaintiff would acquire from D1-D2 the right to develop a piece of land in Xiamen (“Lot 22”) owned by the PRC-incorporated Legend Properties (Xiamen) Company Limited (“D5”). D1-D2 wholly and indirectly owned D5 through a Hong Kong-incorporated company sharing the same name as D5 (“D4”). The Agreement required D1-D2 to transfer their shares in D4 (the “D4 Shares”) to the Plaintiff’s nominee upon receiving the total transfer price. Under the Agreement, delivery of Lot 22 was to take place within 6 months of the date of the Agreement. 3. Tan Lucio C (“D6”), who controlled the group of companies, later procured D1-D2 to terminate the Agreement and develop Lot 22. In response, the Plaintiff commenced arbitration proceedings against D1-D2 at the China International Economic and Trade Arbitration Commission (“CIETAC”) in Beijing in August 2005. 4. Between November 2005 and March 2006, restructuring of the corporate shareholdings relating to Lot 22 began, so that all the D4 Shares came to be held by Eton Properties Group Limited (“D3”) as legal and beneficial owner in place of D1-D2. This restructuring allowed D3, via D4, to hold D5, which owned the rights to develop Lot 22. This made it impossible for D1-D2 to transfer their D4 Shares to the Plaintiff’s nominee as agreed. 5. In October 2006, the Plaintiff obtained an arbitral award from CIETAC requiring D1-D2 to continue to perform the Agreement (“First Award”). The Plaintiff attempted but failed to enforce the First Award in Xiamen before the Xiamen Municipal Intermediate Court in July 2007. The Plaintiff then successfully applied to the Hong Kong Court of First Instance (“CFI”) to enforce the First Award in HCCT 54/2007. D1-D2 then appealed unsuccessfully to the Court of Appeal (“CA”). 6. Having lost the appeal, D1-D2 returned to CIETAC to ask for a determination that the Agreement could no longer be performed and that the parties to it be discharged. This application was dismissed in April 2009. 7. In May 2008, the Plaintiff commenced a common law action against D1-D2 to enforce the First Award as an alternative to the statutory action, and also against D3, D4, and D5 before the CFI to raise the following additional claims. The Plaintiff asserted proprietary rights over the D4 Shares held by D3. Those proprietary rights were said to have arisen out of alleged breaches of fiduciary duty by D1-D2 in effecting the restructuring, with D3, the recipient of the D4 Shares, knowing that they were the product of those breaches and thus subject to a constructive trust in the Plaintiff’s favour. 8. In 2010, the Plaintiff further amended its claim to add 5 individuals, including D6, as defendants, and to seek damages for failure to honour the First Award, damages in tort for inducing breach of contract and unlawful means conspiracy, and equitable compensation for breach of fiduciary duty as constructive trustees. 9. In June 2012, the CFI dismissed all of the Plaintiff’s claims. On appeal by the Plaintiff, the CA, in April 2016, awarded damages to the Plaintiff for D1-D2’s failure to perform the First Award (setting aside, at the Plaintiff’s election, the enforcement order granted in HCCT 54/2007) and dismissed the rest of the claims. 10. The Plaintiff and D1-D2 sought leave to appeal to this Court. The Plaintiff appealed against the parts of the CA judgment dismissing its claims collectively against D1-D2, D3, D4, and D6. D1-D2 appealed against the part of the CA judgment which allowed the appeal in relation to the damages award. The FACV 3/2019 Appeal 11. The main question in this appeal by D1-D2 concerned the scope of the relief that the Hong Kong court, enforcing a Mainland award at common law, may grant. In particular, the question was whether the court can only make an order which mirrors and does not go beyond the award made by the arbitral tribunal. In the present case, First Award required D1-D2 to continue to perform the Agreement. Was it open to the enforcement court to award damages to the Plaintiff? 12. The Court held that the enforcement court is not restricted to duplicating the arbitral award. While at the arbitration phase, the arbitrators determine the parties’ mutual rights and liabilities, at the enforcement stage, the court has power, if necessary, to fashion an appropriate remedy to give effect to the arbitral award. 13. The second question was whether (referring to a case called Johnson v Agnew) the fact that the First Award requiring continued performance was still in existence prevented the enforcement court from awarding damages on the basis that such relief is inconsistent with the award. The Court held that the answer is “No”. D1-D2’s argument was based on a failure to distinguish between the arbitration and enforcement phases of the claim. The FACV 5/2019 Appeal 14. The first main question on this appeal by the Plaintiff concerned the tort of inducing a breach of contract. The Plaintiff alleged that D3 to D6 had caused it loss by inducing D1-D2 to hand over to D3 their D4 Shares and complete control of D4 and D5 and thus to breach their contractual obligation to transfer their D4 Shares to the Plaintiff’s nominee under the Agreement. The Defendants argued that since D1-D2 had firmly decided two years earlier not to perform the Agreement, the restructuring had not caused them to breach the contract. The Court held that the claim against the Defendants failed, not so much for lack of a causal connection, but because, on the facts, D3 to D6 could not be said to have had the necessary intent to frustrate the share transfer envisaged in the Agreement in effecting the restructuring. 15. The second main question (expressed as three separate questions at the hearing) related to the Plaintiff’s claim that, upon entering into the Agreement whereby D1-D2 contracted to transfer the D4 Shares to the Plaintiff’s nominee, the Plaintiff acquired by virtue of the Agreement an immediate beneficial interest in the D4 Shares and that, since D3 to D6 had notice of the Plaintiff’s interest, in D3 receiving the D4 Shares as a result of the restructuring, it became liable as a constructive trustee of those shares in favour of the Plaintiff. D4 to D6 were alleged to be liable for knowingly assisting D1-D2 and D3 in their breach of fiduciary duty in respect of those shares. 16. The Court held that this claim failed because the Agreement, which was expressly made subject to PRC law, did not have the characteristics of a contract which, if governed by Hong Kong law, would have been enforceable by an order of specific performance. The Agreement did not qualify for specific performance because the obligation to transfer the D4 Shares to the Plaintiff’s nominee was subject to conditions precedent and because the Agreement’s terms were such as to require close cooperation between the parties and D1-D2’s performance to be supervised by the court. Disposition 17. Accordingly, the Court unanimously dismissed both appeals. 
1. The basic issue of principle raised on these appeals is whether a person other than the Secretary for Justice (“the SJ”) who wishes to bring proceedings for criminal contempt of court must obtain the consent of the SJ before commencing such proceedings. 2. The action underlying the instant contempt application (“the underlying action”) arose from a dispute concerned with the control of a motor vessel “Grain Pearl” (“the Vessel”), which was owned by Joint Silver Limited (“JSL”), a company (i) 50% owned by the Respondent and two associates; and (ii) 50% ultimately owned by Lau Wing Yan and his associates, and the 1st and 2nd Appellants (“Lau and associates”). 3. The Respondent fell out with Lau and associates, and the disagreements between them included a dispute as to what, if anything, had been orally agreed as to how decisions relating to JSL would be made, as to the role of the 3rd Appellant in managing the Vessel, and as to the 3rd Appellant’s fee entitlement. 4. The disagreements led to the commencement of the underlying action, in which Lau and associates and the 3rd Appellant relied, among other things, on three emails (“the emails”) which were exhibited to the 1st Appellant’s affirmation, to support their ex parte application for an injunction against the Respondent. 5. The emails had actually been altered by one Yan Donghai (“Yan”) so as to bolster the case of Lau and associates. The Respondent contended that the 1st and 3rd Appellants were aware of these alterations, whereas the 1st Appellant, while accepting that the emails were altered by Yan, said that she was unaware of this until January 2016. 6. The Respondent applied on 17th August 2016 for leave to commence contempt proceedings against the Appellants and Yan in respect of their use of the emails. 7. DHCJ Kent Yee granted the Respondent leave to bring the contempt proceedings on 20th December 2016, but the grant of leave was set aside by DHCJ Saunders on 5th July 2017 on the ground of material non-disclosure. However, DHCJ Saunders held that it was unnecessary for the Respondent to obtain the SJ’s consent to bring the contempt proceedings. 8. On 25th July 2018, the Court of Appeal allowed the Respondent’s appeal against DHCJ Saunders’s decision, overruling DHCJ Saunders’s finding of material non-disclosure, but agreeing that the SJ’s consent to the bringing of the contempt proceedings was not needed. 9. On 18th July 2022, the Court of Final Appeal granted the Appellants’ application for leave on four questions: (1) Whether the SJ has the exclusive right to bring criminal contempt proceedings against an alleged contemnor; (2) if the answer to the first question is “no”, whether a private litigant who seeks to commit another for criminal contempt under Order 52 of the Rules of the High Court (Cap 4A) is or should be required to consult the SJ; (3) if the answer to the second question is “yes”, and the SJ declines to bring the proceedings, whether the private litigant is required to join the SJ as party, and/or lay the relevant facts before the court including any views expressed by the SJ; and (4) if the answer(s) to any of the above questions is/are “yes”, whether the leave granted to the Respondent to commence committal proceedings against the Appellants and Yan should be set aside, and these contempt proceedings dismissed. The court’s jurisdiction on contempt of court 10. The function of the contempt jurisdiction is to prevent or punish conduct which tends to obstruct, prejudice or abuse the administration of justice. The Court held that an essential ingredient of “justice being effectively administered” is the ability of a court to entertain applications for contempt of court and the power to punish those who commit contempts. This power represents a well-established aspect of the court’s inherent jurisdiction, as part of the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner. Nature of criminal contempt proceedings 11. The Court held that criminal contempt proceedings are ultimately civil in nature, and that the initiation of contempt proceedings should not be described as a “prosecution”. While it is open (and indeed normal) for criminal contempt proceedings to be initiated by an individual interested in the proceedings or the SJ, the court has jurisdiction to punish a person for criminal contempt of its own motion. Reasoning of the Court 12. The Court held that no entity other than the court itself should be able to fetter the ability of any person to bring an alleged contempt, whether civil or criminal, to the attention of the court. The SJ cannot prevent a court from prosecuting criminal contempt proceedings of its own motion. This view is not undermined by the fact that the SJ can initiate or intervene in or take over the conduct of criminal contempt proceedings brought by an individual. The court decides whether to let an application proceed since its leave is needed to bring contempt proceedings. 13. The Court rejected the argument that the SJ’s consent is necessary to prevent abuse by a private party bringing contempt proceedings with a vindictive or otherwise improper motive because the need for the court’s leave is a sufficient safeguard. Disposition 14. Accordingly, the Court unanimously dismissed the appeals. 
1. This appeal concerns the assessment of the rateable value for 2004/2005 of certain fixed equipment used by the Respondent, an electricity company, at its generating stations in the New Territories and on Lantau Island. The Appellant is the Commissioner of Rating and Valuation (the “Commissioner”). 2. The items of equipment in issue in this appeal include (collectively, the “Disputed Items”): (a) The supporting steelwork for boilers at Section B of the Castle Peak Power Station (“CPPS ‘B’”); (b) The cooling water circuits at CPPS ‘B’ and the Black Point Power Station (“BPPS”); and (c) Ancillary pipework and electrical cables within the power stations. 3. The Commissioner contended that the supporting steelwork for boilers at BPPS also formed part of the Disputed Items but this was objected to by the Respondent. 4. At the Lands Tribunal, the Disputed Items (including the supporting steelwork for boilers at BPPS) were held to fall within the definition of “plant” under section 8A of the Rating Ordinance, Cap 116 (the “Ordinance”) and thus form part of the Respondent’s tenement for rating assessment. The Respondent contended that the Disputed Items were process machinery within the meaning of section 8(b) of the Ordinance and thus not rateable. The Court of Appeal set aside the Lands Tribunal’s ruling and held that section 8A of the Ordinance did not cover cases like the present one where there is already a rateable tenement and the issue of the rateability of the Disputed Items was remitted back to the Lands Tribunal for consideration of evidence. The Commissioner further appealed to this Court. 5. Four questions arose on this appeal: First, what is the correct construction of section 8A, in particular its statutory purpose and its reach? Secondly, what is the interaction of section 8A with section 8, and especially the relieving provision in section 8(b)? Thirdly, is there a unique rule in the law of rating that in deciding whether an item is plant, it is not permissible to have regard to its function as part of a larger whole (the “piecemeal principle”)? Fourthly, should the Court of Appeal have remitted the matter back to the Lands Tribunal? The construction of section 8A 6. The Court held that section 8A was to apply to any equipment which is plant by means of which any land, building or structure is occupied by a person “whether or not such land, building or structure is otherwise a tenement”. It achieves that result in two stages. Subsection (1) deems the land, building or structure (to the extent of its being occupied by the relevant plant) to be a separate tenement, and subsection (2) provides that the plant is to be regarded as part of that separate tenement for the purpose of ascertaining its rateable value. 7. The purpose of subsection (1), which treats land occupied by the relevant plant as a separate tenement, is partly to avoid difficulty with the long-standing principle of rating law that a tenement can have only one person at a time in rateable occupation of it, although as a matter of practical administration, the theoretical “separateness” of all the relevant tenements would be overridden by an in cumulo assessment (meaning valuing 2 or more tenements together as a single unit in certain circumstances) under section 10 of the Ordinance. 8. The application of section 8A is not limited to cases where there is not already a rateable tenement. Based on their natural meaning, the words in section 8A(1) “whether or not such land, building or structure is otherwise a tenement” make clear that the plant occupying the relevant land, building or structure may be either plant that would not otherwise be recognised as a tenement at all, or plant that would otherwise be treated as part of a larger tenement. The relationship of section 8 and section 8A 9. The Court held that section 8A altered the effect of section 8 in a technical way in that if plant occupying some land, building or structure within the meaning of section 8A also happens to be machinery which is an adjunct to a tenement within the meaning of section 8(a), then the words “shall be regarded as part of the tenement” in section 8(a) must be displaced as the plant cannot simultaneously be a separate tenement and part of another tenement. However, it is a technicality with little practical significance since in practice the Commissioner will make an in cumulo assessment under section 10. 10. In other respects, section 8 remains in full force despite the existence of section 8A. In particular, the relieving provision in section 8(b) continues to apply in respect of “any machinery in or on the tenement for the purpose of manufacturing operations or trade processes”. 11. It is possible that most adjunct machinery falling within section 8(a) will also be occupying plant falling within section 8A. This overlap could be avoided by treating the inclusive definition of “plant” in section 8A(3) as limited to ancillary equipment which is not adjunct machinery falling within section 8(a), and is one of the seven types of ancillary equipment specifically mentioned in the definition. The piecemeal principle 12. There is no such thing as the piecemeal principle. Nor are there any sort of unwritten common law principles which apply in the specialized field of rating. The decisions relied on by the Commissioner in deriving the so-called piecemeal principle, namely, Shell-Mex and BP Ltd v Holyoak [1959] 1 WLR 188 and Manchester Marine Ltd v Duckworth (Valuation Officer) [1973] 1 WLR 1431, were both results of applying general principles of statutory construction to specific English statute law on rating, which is very different from the rating law in Hong Kong. The issue of remission 13. The Court held that supporting steelwork for boilers fell squarely within the definition in section 8A(3) and cannot reasonably be described as a machine or part of a machine. Likewise, the ancillary pipework and electrical cables as well as the whole of water-cooling systems cannot be regarded as a machine, or part of a machine, falling within section 8(b). Therefore, there is no need to order a remitter to the Lands Tribunal in respect of the rateability of these items. 14. As for the supporting steelwork for the boilers at BPPS, the issue as to whether it forms part of the Disputed Items was not resolved either before the Lands Tribunal or at the Court of Appeal. Given that the Lands Tribunal did not make findings of fact on this issue and the reference year 2004/2005 is now so long ago, also given that the Court of Appeal did not set aside or direct remitter of the Lands Tribunal’s judgment so far as it affects the structural steelwork at BPPS, the Court held that it should leave in force the Lands Tribunal’s judgment on this issue, namely, the supporting steelwork for the boilers at BPPS is rateable. Conclusion 15. Accordingly, the appeal was allowed and no remitter to the Lands Tribunal was directed. 
1. These proceedings concern the questions (a) whether the oaths purportedly taken by Mr. Leung and Ms. Yau at the LegCo meeting on 12 October 2016 before the Clerk to the LegCo (“the Clerk”) contravene the requirements under Art. 104 of the Basic Law (“BL104”) and/or the Oaths and Declarations Ordinance (“ODO”), and (b) if so, whether they shall be regarded as having vacated their respective office (“the Office”) of a LegCo member as a matter of law. 2. BL104 constitutionally mandates, among others, an elected LegCo member when assuming his office to take an oath in accordance with the laws under the ODO (a) to swear to uphold the Basic Law and (b) to swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China. 3. Sections 16 and 19 of the ODO further require that a LegCo member elect must take the Legislative Council Oath (“the LegCo Oath”) which is in the form prescribed under the ODO. Section 21 of the ODO further relevantly provides that if a LegCo member who “declines or neglects” to take the LegCo Oath when requested to do so shall vacate the Office (if he has already entered on it); or shall be disqualified from entering on it (if he has not yet entered on it). 4. There is no dispute among the parties that, on 12 October 2016, Mr. Leung and Ms. Yau purported to take the oath in the following ways and manners: (a) Each of them used the term “Hong Kong nation” at the outset of the oath-taking; (b) After the interjection by the Clerk, each of them mispronounced the word “China” as “Geen-na” or “Sheen-na” (“支那”); (c) Ms. Yau mis-pronounced “People’s Republic of China” as “the People’s Refucking of Sheen-na”; (d) Each of them unfolded and displayed a blue banner bearing the words “HONG KONG IS NOT CHINA”; (e) Mr. Leung displayed dismissive and not-serious tone in taking the oath after the Clerk’s interjection and crossed his index and middle finger of his right hand over the Bible; and (f) Ms. Yau emphasized “Hong Kong” with a distinctly loud tone of voice but adopted a lower voice and hurried manner for the rest of the oath. 5. The Court notes that Mr. Leung and Ms. Yau have not put forward any positive case by way of submissions or evidence that the oaths they purportedly took on 12 October 2016 complied with BL104 or the requirements under the ODO. Nor have they put forward any positive case by way of submissions or evidence that their above conducts did not amount to declining or neglecting to take the LegCo Oath under BL104 or the ODO. 6. Instead, Mr. Leung and Ms. Yau oppose the application on the principal grounds that the court could or should not intervene in the matters now under challenged in light of: (1) the non-intervention principle; and (2) the LegCo member’s immunity provided under Article 77 of the Basic Law (“BL77”) and sections 3 and 4 of the Legislative Council (Power and Privilege Ordinance (Cap 382) (“LCPPO”). So far as the President is concerned, his only objection is that he should not be joined as a party in these proceedings. 7. On 7 November 2016, in exercise of its power under Article 158 of the Basic Law (“BL158”) the Standing Committee of the National People’s Congress (“NPCSC”) pronounced an interpretation of the meaning of BL104 (“the Interpretation”). The Interpretation is binding on all Hong Kong courts and the courts should give effect to it[1]. 8. Relevant for the present purposes, the meaning of BL104 under the Interpretation essentially provides that an elected LegCo member when assuming office must take the LegCo Oath as prescribed under the ODO (being the laws of HKSAR) solemnly and sincerely and in compliance with it both in substance and in form. If he intentionally declines to so take the LegCo Oath, whether in form or in substance, the oath taken is invalid and he shall be disqualified from assuming the Office. 9. On the other hand, the Court also accepts CE/SJ’s submissions that the laws of Hong Kong as set out in relevant provisions of the ODO, when properly construed independent of the Interpretation, carry effectively the same meanings and legal effects as those of the above meaning of BL104. 10. Adopting a purposive construction and common law[2], the Court holds that sections 16, 19 and 21 of the ODO have the following meanings and effects[3]: (a) These relevant provisions in the ODO reflect and underline the requirements under BL104; (b) A LegCo member must take the oath as soon as possible after being elected and before his assumption of office; (c) A LegCo member must take the oath in the same form, manner and substance of the LegCo Oath as prescribed under the ODO; (d) An oath must be taken solemnly and sincerely and is a form of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truthfully. An oath of allegiance or loyalty means that a person promises and binds himself to bear true allegiance to a particular sovereign and government and to support its constitution. In determining the validity of the taking of an oath, the essential question to be answered is whether it can be seen objectively that the person taking the oath faithfully and truthfully commits himself or herself to uphold and abide by the obligations set out in the oath. (e) For the purposes of the ODO, the word “decline” means an intentional act to refuse or object to the taking of the oath as prescribed by law; and the word “neglect” means a deliberate or willful (in contrast to an inadvertent or accidental) omission to perform the duty to take the oath as prescribed. (f) If a LegCo member “declines or neglects” to take the LegCo Oath whether in form or in substance, by the operation of law, he must (“shall”) be regarded as having vacated his office if he has entered upon it, or be disqualified from entering his office if he has not done so. 11. The Court agrees with the CE/SJ that the undisputed and unchallenged evidence in the present cases shows that (a) Mr. Leung and Ms. Yau had been requested to take the LegCo Oath on 12 October 2016, (b) the manner and way in which they purported to take the oaths show objectively and clearly that they did not truthfully and faithfully intend to commit themselves to uphold and abide by the two obligations under the LegCo Oath and BL104, as they objectively clearly did not recognize the principle of “one country, two systems” and the importance of “one country” under that principle, which (as well recognized by the Court of Final Appeal[4]) is the foundation for the establishment of the Hong Kong Special Administrative Region under the People’s Republic of China and of the Hong Kong’s constitutional model under the Basic Law. 12. In the premises, Mr. Leung and Ms. Yau therefore objectively manifested a clear conduct to refuse (thus “decline”) to take the LegCo Oath, whether in form or in substance, as required under BL104 and the ODO. It is again noted that neither Mr. Leung nor Ms. Yau has suggested otherwise by way of submissions or evidence. 13. In such circumstances, s.21 of ODO should apply and operate as a matter of law to disqualify Mr. Leung and Ms. Yau from continuing to be a LegCo member. 14. The Court rejects the opposition ground based on the non-intervention principle. The principle has its origin in common law based on the doctrine of separation of powers as practised in England, where there is the principle of Parliamentary supremacy and the absence of a written constitution. The extent and limit of this principle’s application in another jurisdiction must be subject to and considered in the context of that other jurisdiction, in particular where there is a written constitution. 15. In Hong Kong, there is a written mini-constitution of the Basic Law and the Basic Law is supreme instead of the legislature (see: Cheng Kar Shun v. Li Fung Ying[5]). The scope and limit of the non-intervention principle as applied in Hong Kong has since been laid down by the CFA in Leung Kwok Hung v. The President of the Legislative Council (No. 1)[6]. Deriving from the CFA’s judgment: (1) the principle of non-intervention as applied in Hong Kong is necessarily subject to the constitutional requirements of the Basic Law; (2) where the Basic Law confers law-making powers and functions on the legislature, the court has powers to determine whether the legislature has a particular power, privilege or immunity; and (3) what can be properly regarded as the “internal business” or “internal process” of the LegCo must be viewed under the above caveat. 16. Applying the above principles, the non-intervention principle as applied in Hong Kong therefore does not prohibit the court from determining the questions of (a) whether an oath taken by the LegCo member complies with the important constitutional requirements under BL104 (and hence also the legal requirements under the ODO), and (b) whether, in failing to so comply with these constitutional and legal requirements, the LegCo member shall be disqualified from the Office under BL104 and/or section 21 of the ODO. 17. In this respect, neither sections 19 and 21 of the ODO nor paragraph (4) of the Interpretation provides expressly that the decision of those administering the oath as to whether an oath is in compliance with BL104 and the laws of Hong Kong is final. Accordingly, although the Clerk or the President has an incidental duty and power to determine whether the oath taken is in compliance with the law as and when circumstances practically require, the Court holds that it does have power to finally adjudicate the matters under challenged in the present cases. 18. The court also rejects the ground based on LegCo members’ immunity. The Court holds that, on proper construction, the protection provided under BL77 and sections 3 and 4 of the LCPPO only covers statements and speeches made by a LegCo member in the course of official debate on the floor of the LegCo when exercising his powers and discharging his functions as a LegCo member. The words expressed by a LegCo member in taking an oath cannot be properly regarded as falling within these meanings nor could they be regarded as expressed in the course of the exercise of a LegCo member’s power or carrying out his functions since he has not yet validly assumed the Office. 19. The Court also holds alternatively that, in any event, the court must have jurisdiction as expressly granted by section 73 of the Legislative Council Ordinance (Cap 542) (“LCO”) to adjudicate the underlying question of whether a LegCo member has been disqualified when proceedings are brought under that provision against a person purporting to act as a LegCo member when disqualified. The Court rejects Mr. Leung and Ms. Yau’s submissions that section 73 of the LCO does not intend to cover the circumstances where a member has been disqualified under section 21 of the ODO. 20. The Court further holds that the decision of the President to allow Mr. Leung and Ms. Yau to re-administer the oath in substance and in effect implies that Mr. Leung and Ms. Yau did not decline or neglect to take the LegCo Oath on 12 October. Hence, the decision of the President has a substantive effect and is amenable to judicial review and the President was properly joined as a party. 21. As regards the locus of CE, the Court holds that, since under Article 48 of the Basic Law, the CE has the constitutional responsibility for the implementation of the Basic Law and other laws in Hong Kong, the CE therefore does have locus to bring either the judicial review or HCMP 2819/2016. On the other hand, in so far as proceedings concerning section 73 of the LCO are concerned, the Court accepts that the CE in his capacity as the CE has no locus to bring such proceedings against Mr. Leung and Ms. Yau. However, this does not materially affect these proceedings, as the SJ as one of the plaintiffs is a proper party to bring the section 73 proceedings. 22. Finally, Mr. Leung and Ms. Yau contend that the Court is not bound by the Interpretation since, properly construed under common law, the Interpretation amounts to amendments of BL104 instead of an interpretation as understood under BL158. The Court does not find this submission to be relevant to the present cases as it agrees with the submissions of CE/SJ that, with or without the Interpretation, the Court would reach the same above conclusion. The Court therefore does not see the need to determine on this question. 23. Upon the President’s request, the Court further clarifies that Mr. Leung and Ms. Yau have vacated their office since 12 October 2016. [1] See: Director of Immigration v. Chong Fung Yuen (2001) 4 HKCFAR 211 [2] Having referred to authorities such as Leung Kwok Hung v. Clerk to the Legislative Council (HCAL 112/2005, 6 October 2004, per Hartmann J), Haridasan Palayil v. The Speaker,Kerala Legislative Assembly AIR 2003 Ker 328, 2003 (3) KLT 119, and AG v. Bradlaugh (1885) 14 QBD 667 [3] These are in any event not disputed or challenged in a material way by the President, Mr. Leung and/or Ms. Yau. [4] See Ng Ka Ling v. Director of Immigration (1999) 2 HKCFAR 4, and HKSAR v. Ng Kung Siu (1999) 2 HKCFAR 442 [5] [2011] 2 HKLRD 555 [6] (2014) 17 HKCFAR 689 
1. The appellant challenged the constitutionality of section 63B of the District Court Ordinance (Cap. 336) (“Section 63B”), contending that it was inconsistent with Article 82 of the Basic Law (“Article 82”) whichvests the power of final adjudication in the Court of Final Appeal. 2. While Article 82 does not confer on litigating parties any constitutional right of appeal to the final court, the Court held that any restrictions on rights of appeal cannot be arbitrarily imposed. 3. Section 63B restricts the right of appeal by expressly providing for finality when leave to appeal is refused, aiming to prevent a class of cases from reaching the Court of Final Appeal. 4. The Court found that the statutory restrictions are justified under a proportionality analysis on the basis that it legitimately aims to screen out cases which have no reasonable prospect of success and also to maintain a balance between litigation costs and the amounts at stake. 5. Thus, the Court found Section 63B both proportionate and constitutionally valid and does not go beyond what is reasonably necessary for the achievement of the legitimate aim. 6. Accordingly, the Court dismissed the appeal. 
1. These were appeals against sentences of imprisonment imposed by the Court of Appeal, in place of community service orders originally imposed by the trial magistrate on the appellants, following a review of sentence pursuant to section 81A of the Criminal Procedure Ordinance (Cap. 221) (“CPO”). 2. The appellants had been convicted of unlawful assembly contrary to section 18(3) of the Public Order Ordinance (Cap. 245). The convictions arose from a protest that took place outside the Legislative Council (“LegCo”) on 13 June 2014 against development works in the North East New Territories New Development areas. At around 8:45pm, while LegCo’s Finance Committee was in session, the appellants, who were amongst protesters in the designated demonstration area, rushed towards the entrances of the LegCo building and used Mills barriers, bamboo poles and metal bars to batter and to try to prise open the locked doors in order to force their way in. As a result of this violent unlawful assembly, a security officer was injured and damage was caused to the LegCo facilities which cost over HK$400,000 to repair. 3. At the conclusion of the hearing, the Court of Final Appeal (“the Court”) allowed the appeals and set aside the sentences of imprisonment imposed by the Court of Appeal. The Court, however, did not reinstate the magistrate’s community service orders but instead proceeded to sentence the appellants to terms of imprisonment equal to the length of time each had already been in prison, which ranged from 3 months and 9 days to 5 months and 24 days. 4. In its Reasons for Judgment, the Court concluded that the magistrate erred in principle in imposing community service orders on the appellants because he effectively ignored the element of violence involved and also their lack of genuine remorse. Also, given the scale of the violence involved, the magistrate’s sentences of community service orders of between 80 and 150 hours were manifestly inadequate. The Court of Appeal was therefore entitled to increase the sentences on review. The appropriate sentences in the present case would be custodial sentences rather than community service orders. 5. However, as was accepted by the Director of Public Prosecutions on behalf of the respondent, it was clear that the Court of Appeal could only have imposed sentences with a 15-month starting point by retrospectively applying the new sentencing guidelines laid down by it in Wong Chi Fung for unlawful assemblies involving violence. This was wrong in principle, as the Court of Final Appeal had laid down in Wong Chi Fung, and so the appeals must be allowed and the sentences imposed by the Court of Appeal quashed. 6. Furthermore, section 109A of the CPO required a court not to sentence a young person under the age of 21 to imprisonment unless of the opinion that no other method of dealing with him was appropriate. For the purposes of section 109A, it was the person’s age at the time he was sentenced to imprisonment that was strictly relevant. However, although the 5th and 6th appellants were both 21 years old when sentenced to imprisonment by the Court of Appeal, given that they had passed the threshold age of 21 after committing the offences, the Court of Appeal should have had regard to the conceptual approach laid down in section 109A and imposed sentences on them that were in substance much the same as those which would have been imposed on an offender aged just under 21. 7. As to the disposition of the appeals, it was necessary for the appellants to be re-sentenced on the basis of the sentencing regime for the offence of taking part in an unlawful assembly in accordance with the pre-Wong Chi Fung guidelines. Although this would usually be done by the Court of Appeal as a sentencing court, the Court of Final Appeal itself had jurisdiction to re-sentence and would do so here. 8. On the applicable pre-Wong Chi Fung guidelines, none of the appellants would have been sentenced to more than 6 months’ imprisonment. Given the normal discount when a sentence was increased on review and also allowing for time off for good behaviour, the periods of imprisonment already actually served by each of the appellants (which varied only because of the different dates on which each applied for bail) were such that none of the appellants should now be required to return to prison. Accordingly, they would be sentenced to terms of imprisonment equal to the length of time respectively served by each. 
The facts and prosecution case 1. The 1st appellant was appointed Chief Secretary of the HKSAR Government on 30 June 2005, and thus also became an Official Member of the Executive Council. The 2nd appellant was a Co-Chairman and Managing Director of Sun Hung Kai Properties Limited (“SHKP”), a major property developer and publicly listed company in Hong Kong. The 3rd appellant was an executive director of SHKP, while the 4th appellant was a close friend of the 1st appellant. 2. In the period between 27 and 30 June 2005, immediately before, and in anticipation of, the 1st appellant taking office as Chief Secretary, payments totalling HK$8.5 million were made into his bank account. The payments were made on the ultimate directions of the 2nd appellant, in a convoluted manner through the 3rd and 4th appellants. 3. While the 1st appellant was Chief Secretary, there were substantial commercial negotiations between SHKP and the HKSAR Government, including the Ma Wan Park Project and the West Kowloon Cultural District Project, in which SHKP had a significant interest. 4. The prosecution case was that the payments of HK$8.5 million were bribes, not in contemplation of any specific act or omission, but in order to secure an improper inclination and that, in return for the payments, the 1st appellant agreed to be or remain favourably disposed, in office as Chief Secretary, to SHKP, its subsidiaries or associated companies and/or the 2nd or 3rd appellants. The conviction and issue on appeal 5. The appellants were convicted, before a jury, of a conspiracy the alleged object of which was for the 1st appellant to engage in misconduct in public office. Their appeals against their convictions were dismissed by the Court of Appeal and they further appealed to the Court of Final Appeal. 6. The appeal involved the question of whether such an agreement is capable of answering the description of an agreement on the part of the 1st appellant to misconduct himself in the course of or in relation to his public office. The appellants contended that no relevant act of misconduct was involved and that what was alleged to constitute the intended misconduct was merely a state of mind. The Court’s consideration of the issue and analysis of the charge against the appellants 7. The Court considered the law on misconduct in public office and bribery in Hong Kong. Ever since the first Hong Kong legislation on bribery in 1898, the essence of an advantage being corrupt was its tendency to obtain improper influence or secure a disloyal inclination. Subsequent legislative development has widened the anti-corruption net without abandoning this concept. 8. A broad range of different acts and omissions can constitute the conduct element of the common law offence of misconduct in public office. There must however be a relationship between the act or omission constituting the misconduct and the public office. The essence of the offence is the abuse of public trust by the officer. The misconduct must be serious, not trivial, having regard to the responsibilities of the office and the officeholder. 9. The appellants were charged with a conspiracy to commit misconduct in public office. It was therefore necessary to focus on the character of the conspiratorial agreement alleged by the prosecution. 10. As the Chief Secretary, the 1st appellant was the second most senior officer in the HKSAR Government. Being part of the Executive Council, he played an important role in the development of Government policy. He was privy to highly confidential information, in relation to matters in which SHKP had substantial interests. He was also a Principal Official and was hence subject to Government Regulations relating to conduct and conflicts of interest. 11. The conspiratorial agreement concerned the 1st appellant being paid HK$8.5 million in return for his favourable disposition while in the office of Chief Secretary. This bargain was therefore clearly corrupt. Its purpose was to cause the anticipated Chief Secretary to be inclined to show favour to the other conspirators’ interests. 12. The conspiratorial agreement was made in anticipation of his entering into that public office and was wholly concerned with his anticipated holding of it. Once he had accepted the HK$8.5 million in relation to his holding the office of Chief Secretary, his independence when he assumed office would be hopelessly compromised and he could not properly discharge his duties nor be trusted to do so. This involved a continuing offence that commenced from the time he entered into his public office and infected the entire period he held that office under the influence of the payment made to him. 13. So analysed, the conspiracy alleged was an agreement under which, in return for a substantial payment of money, the 1st appellant would incline himself in a manner inconsistent with his duty as a public officer. This improper inclination was wholly inimical to his duties as Chief Secretary and involved a serious abuse of office and public trust. 14. The abuse of public trust contemplated by the conspirators was clear and, by agreeing to place himself in such a compromised state, the 1st appellant made an agreement which contemplated a continuing act of misconduct whilst he was Chief Secretary. The fact that the payment made to induce that compromised state was made before he assumed his public office did not mean the abuse of trust occurred at the time of the making of the payment. That payment was made to secure an ongoing inclination on the part of the 1st appellant towards SHKP once he assumed the office of Chief Secretary and it was by agreeing to act as Chief Secretary whilst in the “golden fetters” constituted by that payment that he conspired to commit an act of misconduct sufficient to satisfy the conduct element of the offence of misconduct in public office. Disposition 15. The appeals were accordingly dismissed. 
1. Television Broadcasts Limited (“TVB”) produced a New Year’s Eve Countdown show broadcast from Olympian City on 31 December 2009. At the material time, Chan was the General Manager (Broadcasting) of TVB while Tseng was the sole director of Idea Empire Advertising & Production Company Limited (“IEAP”) and acted as Chan’s agent for outside engagements. 2. Chan accepted $112,000 from Olympian City through IEAP to host a live edition of his “Be My Guest” show as part of the Countdown broadcast. Tseng, being the sole director of IEAP, was charged with offering, and Chan with accepting, that sum in contravention of section 9 of the Prevention of Bribery Ordinance. They were also charged with and convicted of a conspiracy to commit those offences. 3. The Court considered the mental fault element in relation to different variants of the section 9 offence, explaining what has to be intended by persons offering, and agents soliciting or accepting, advantages as inducements or rewards in such cases. 4. The Court also considered the requirement in section 9 that the prosecution prove that the advantage was offered, solicited or accepted as an inducement or reward for or otherwise on account of the agent doing or forbearing to do the relevant act “in relation to his principal’s affairs or business”, the main focus of the appeal being as to the meaning of that phrase. Applying and expanding upon a decision in the Privy Council in 1997 (Commissioner of the ICAC v Ch'ng Poh), the majority of the Court disagreed with the Court of Appeal and held that Chan’s appearance on the “Be My Guest” segment of the Countdown show, was not an act “in relation to his principal’s affairs or business”, and gave guidance as to the proper interpretation of that phrase. The majority of the Court also considered how a provision in the Ordinance which places the burden of proving the defences of lawful authority and reasonable excuse on the accused operates in relation to a charge of conspiracy to contravene section 9. Tang PJ gave different reasons for arriving at the same conclusion as the majority. He held that Chan’s performance on the show did constitute an act “in relation to his principal’s affairs or business” but held that he had a reasonable excuse for so acting. 5. The Court unanimously allowed the appeals and quashed the appellants’ convictions. 
1. This appeal concerns the Appellant’s counterclaim against the Respondent for damages. The Appellant was appointed a technical representative by the Respondent, an insurance agent, by a contract dated 23 January 2007. On 23 August 2007, the Appellant’s appointment was duly terminated by notice. The Appellant complained that the Respondent had failed to report (1) the termination of his appointment to the Insurance Agents Registration Board (“IARB”) and (2) his Continuing Professional Development (“CPD”) credits to the IARB. 2. Under the relevant provisions of the Code of Practice for the Administration of Insurance Agents (“Code”), an insurance agent should inform the IARB of cessation of appointment of technical representatives within seven days of such cessation, and a person cannot act as a technical representative for more than one insurance agent. The relevant Guidance Note issued by the IARB also provides that an insurance agent is responsible for reporting the technical representative’s CPD credits to the IARB. Should such reporting be not complied with, the technical representative would suffer a mandatory de-registration for three months. 3. The District Court held in favour of the Appellant at trial, but the judgment was reversed on appeal. The Court of Appeal held that there was no actionable breach of statutory duty and that the Respondent owed the Appellant no duty of care at common law. The Court of Appeal also held that the Appellant suffered no loss because he could work as an insurance agent for more than one insurer. The Appellant now appeals to the Court. 4. The Court held that the Respondent owed a tortious duty of care to the Appellant. There was a clear foreseeability of loss to the Appellant in the event of the Respondent’s failure to report the cessation of appointment and the CPD credits. Since the Respondent was assigned a role under the Code to report these matters, and the Appellant relied on the Respondent to perform its role, the Respondent must be taken to have assumed the responsibility to comply with the reporting requirements. In these circumstances, it would be fair, just and reasonable to impose a duty of care on the Respondent. The contract was not inconsistent with the tortious liability and could not exclude the duty of care. 5. The Court also held that the Court of Appeal was wrong to on its own initiative refer to the Appellant’s registration history and take a new point against the clear and uncontradicted evidence at trial that the Appellant could not work before the cessation of his appointment by the Respondent had been reported. The important difference between a technical representative and an insurance agent is that while an insurance agent could work for four principals with the requisite consent, a technical representative could not act for more than one insurance agent. The fact that the Appellant had been an insurance agent for two insurers in the past was therefore not to the point. 6. The appeal was therefore unanimously allowed. 
1. The appellant was charged with five counts of raping a girl, X, contrary to section 118(1) of the Crimes Ordinance (Cap. 200). The prosecution’s case was that the appellant raped X on five occasions in a rental premise in the New Territories, when X’s mother, Y, was not home. Counts 1 to 4 identified that the offences were committed on various unknown dates from March to May 2014 respectively, while a specific date, 4 June 2014, was identified for count 5. The appellant contended that the whole case was fabricated, that Y was his “kept woman”, and that Y had abetted X to falsely accuse him of rape in order to extort money from him. 2. The appellant stood trial before a trial judge and a jury, during which he gave alibi evidence regarding count 5. The trial judge observed in her directions to the jury that this was a word-against-word case where the evidence basically consisted of the oral evidence of X against that of the appellant. The appellant was convicted on counts 1 to 4 by a majority verdict of five to two, and unanimously acquitted of count 5. He was later sentenced to 10 years’ imprisonment. 3. The appellant appealed against his convictions to the Court of Appeal. The Court of Appeal rejected the appellant’s submissions that his acquittal on count 5 rendered his conviction on counts 1 to 4 unsafe and unsatisfactory. His appeal was therefore dismissed. 4. The appellant further appealed to this Court. At the conclusion of oral argument, the Court ordered that the appeal be dismissed. The reasons are summarised as follows. ISSUES 5. The first issue before this Court was whether the standard direction to the jury – that they should consider each count separately, and may accept part of a witness’ evidence and not the other parts of the same witness’s evidence (the “separate offences direction”) – should be qualified in cases of sexual offences where the only direct evidence of the commission of the offences came from the complainant. 6. The appellant contended not only that the trial judge should have indicated to the jury that any reasonable doubt they form concerning one aspect of the complainant's evidence must also be taken into account in assessing the overall credibility of the complainant and hence in relation to other counts (a “Markuleski direction”), but also that the trial judge should have given a more detailed direction to the jury that they may consider it very difficult to find the appellant guilty on counts 1 to 4 if they find him not guilty on count 5. 7. The Court held that a Markuleski direction was not always necessary or desirable as a counterweight to the separate offences direction. The direction should only be given when necessary, and only where a risk of unfairness to the accused had truly arisen. The overarching criterion was the conduct of a fair trial. 8. In the present case, the trial judge had already given a Markuleski direction during trial with particular reference to count 5, which at trial counsel did not request to expand in the detailed terms suggested before this Court. The Court therefore rejected the appellant’s submission that he was denied a fair trial. 9. The second issue before this Court concerned the proper approach of an appellate court towards inconsistent verdicts where, although not logically inconsistent, the verdicts were based on the uncorroborated evidence of the complainant. The Court reaffirmed the previous position in Hong Kong that in order to successfully appeal on the grounds of “factual inconsistency”, the appellant had to show that no reasonable jury which had applied their minds properly to the facts of the case could have returned the verdict in question. 10. On the facts of this case, the Court rejected the appellant’s submission because the absence of corroborated evidence could not of itself be decisive; there had been no undue delay in making the complaint; and that there had been an apparent difference in the quality of X’s evidence between counts 1 to 4 and count 5, as count 5 was contradicted by the alibi. The different verdicts were not inconsistent such as to necessitate intervention on appeal. DISPOSITION 11. The appeal was unanimously dismissed. 
1. This case concerns the public reprimand and fines imposed upon Moody’s Investors Service Hong Kong Limited (“Moody’s”) for its preparation and publication of a report published on 11th July 2011, entitled “Red Flags for Emerging-Market Companies: A Focus on China” (the “Report”), in breach of section 193(1)(d) of the Securities and Futures Ordinance, Cap. 571 (“SFO”). FACTS 2. In the Report, Moody’s applied a framework of five “red flags” to analyse 61 high-yield non-financial Chinese companies. These 5 “red flags” covered concerns in relation to corporate governance, business models, business strategies, quality of earnings or cash flow, and quality of auditors and financial statements. 49 of these companies were analysed under the framework with relevant figures tabulated. 3. Moody’s made various statements in the Report, including that its “findings show that screens for governance or accounting risks can help identify areas to investigate but cannot serve as mechanisms to rank order credit risk”, and that “[t]he red flags provide further clarity and detail, but do not represent a change in our rating methodologies”. It was also stated that “[t]he identified issues that we flag do not represent a change to our analytical approach”, and that a company’s “tripping of many red flags does not represent an immediate rating concern”. 4. Following its publication, the Report received extensive media attention. The price of the shares of many of the 49 companies covered in the Report fell substantially (well over 10% in some cases). 5. The publication of credit ratings in Hong Kong is an activity regulated by the Securities and Futures Commission (the “SFC”) and subject to a Code of Conduct. The SFC formed the view that, in preparing and subsequently circulating the Report, Moody’s had “failed to have the required procedural safeguards in place to ensure the integrity of the Report and that the Report itself was in a number of material respects misleading, confusing and inaccurate to the extent that the publication was, or was likely to be, prejudicial to the interests of the investing public, including Moody’s own clients, and prejudicial also to the integrity of the market”. Moody’s was therefore found to have failed to live up to the standards to be expected of a licensed Credit Rating Agency (“CRA”), and breached provisions of the relevant Code of Conduct. Moody’s was fined HK$23 million and declared unfit. 6. Moody’s sought a review against SFC’s decision at the Securities and Futures Appeals Tribunal (the “Tribunal”). One of Moody’s arguments was that the publication of the Report was not a regulated activity since it was not a “credit rating” nor was it “an act or omission relating to the carrying on of [a credit rating]” under section 193(1)(d) of the SFO, and therefore cannot possibly constitute misconduct. The argument was rejected, though the fine was reduced to HK$11 million for other reasons. 7. On appeal, the Court of Appeal, while deciding, in disagreement with the Tribunal, that the Report did not constitute a “credit rating”, agreed with the Tribunal that its publication constituted “an activity relating to credit ratings”, since it included “additions and clarifications which were meant to be read together with such classic ratings”. Moody’s brought a further appeal to this Court. ISSUES (1)The meaning and effect of the phrase “relating to” under SFO section 193(1)(d) 8. The main question is whether the preparation and publication of the Report is an act “relating to” the carrying on of the provision of credit rating services. 9. Bokhary PJ had previously commented in Mariner International Hotels Ltd v Atlas Ltd (2007) 10 HKCFAR 1 that “relating to” is a phrase which is, if anything, even wider than “involving”, which is “one of the broadest words of association known to the English language”. Where the legislature used words which are very general in their natural ambit such as “relating to”, it is inappropriate, in the absence of a cogent reason, to give a relatively specific meaning to those words. 10. There are no such reasons to narrow down the meaning of the phrase, especially given how the purpose of this law is to serve the public interest, and aimed at encouraging high standards and penalises substandard work that affects financial markets and investors. (2)Does the Report “relate to” Moody’s credit rating services? 11. The correct approach to determining whether a publication “relates to” credit rating services should be to consider the publication by reference to what it says, reading it in a practical and realistic way in its commercial context, and to decide “how the market would reasonably have been anticipated to treat” it, rather than referring to its compiler’s own thoughts and intentions. In this process, the Tribunal can also take into account how the market actually reacted. 12. Applying this approach, the following factors led this Court to find that the Report is “related to” credit rating. 13. Moody’s is a licensed CRA renowned for its credit rating services. There must be a substantial risk that many people in the market will assume that any report by Moody’s will in some way be related to its credit rating services, especially given that it is concerned with accounting, governance, and quality of earnings. 14. Furthermore, all 61 companies covered by the Report were also the subject of Moody’s existing published credit ratings. The text of the Report also makes frequent references to the credit ratings of some of these companies. The “red flags” were also presented according to “rating category”, and the number of “red flags” tripped by the company in each case were also compared with its credit rating. 15. Moreover, it is telling that the announcement Moody’s made accompanying the Report described it as “supplemental to Moody’s methodological approach to rating non-financial corporates”. If the Report is said to be “supplemental” to credit rating, it would likely also to “relate to” the same. 16. There is also the further external factor of the actual negative reaction of the market, which should have been foreseen by Moody’s given the importance accorded by the market on its ratings. 17. A clear and convincing disclaimer might have changed the view of the public that the Report was related to credit ratings, but there was none. DISPOSITION 18. Accordingly, the appeal was unanimously dismissed, and Moody’s is ordered to pay costs of this appeal to the SFC. 
1. The Basic Law, not the legislature, is supreme in Hong Kong. It provides for the exercise of the independent judicial power of adjudication of the Hong Kong Special Administrative Region by the courts and the courts alone. 2. When a constitutional requirement in the Basic Law is in issue, the common law doctrine of separation of powers and of non-intervention must give way to the court’s constitutional duty to apply the Basic Law to adjudicate and rule on the matter. In so doing, the court does not undermine the Legislative Council (“LegCo”)’s authority or function, or diminish the mandate the electors gave to its members. It ensures that the LegCo and its members exercise their powers lawfully in accordance with the constitutional requirement of the Basic Law. 3. Article 104 of the Basic Law lays down a constitutional requirement on oath taking by members of the LegCo. The scope of the constitutional requirement extends to the consequence of its non-compliance which is laid down in article 104 itself as interpreted by the Standing Committee of the National People’s Congress under the Interpretation dated 7 November 2016 (“the Interpretation”), as well as section 21 of the Oaths and Declarations Ordinance (Cap 11) (“ODO”). Compliance with the constitutional requirement under article 104 of the Basic Law is not a matter of the internal business or process of the LegCo. 4. The court, and the court alone, has the constitutional power and duty to adjudicate on the question of non-compliance with the constitutional requirement and its consequence, and the principle of non-intervention does not apply. 5. In deciding this question, the court conducts a full merit review. The views of the oath administrator may be of evidential value but are not binding on the court. 6. Under article 104 (as interpreted) and section 21(a) of the ODO, disqualification and vacation of office are automatic by operation of law. Proceedings under section 73 of the Legislative Council Ordinance (Cap 542) (“LCO”) are not confined to the situations described in section 15(1) of the LCO, or dependent on a declaration by the LegCo President under article 79(1) of the Basic Law. In fact, article 79(1) does not apply to the relevant situation described in article 104 (as interpreted) and section 21(a) of the ODO. 7. The Chief Executive has a constitutional responsibility to implement the Basic Law pursuant to article 48(2) of the Basic Law. He may do so by means of judicial review under sections 21J and 21K(1)(b) of the High Court Ordinance (Cap 4) in the present type of dispute. Section 73(7) of the LCO does not prevent him from doing so. 8. The immunity from suit granted under article 77 of the Basic Law to LegCo members does not extend to cover a LegCo member’s taking of the LegCo Oath when assuming office as required by article 104. 9. The Interpretation sets out the true and proper meaning of article 104 from day one. It speaks from 1 July 1997 and applies to all cases save as provided in article 158(3) of the Basic Law. It is binding on the courts in Hong Kong. The court does not have jurisdiction under the Basic Law to entertain the argument that the Interpretation is in substance a purported amendment of the Basic Law and therefore not binding. In any event, no evidential foundation has been laid for the argument. 10. On the facts, Leung and Yau declined to the take the LegCo Oath when duly requested to do so on 12 October 2016. By operation of law under article 104 (as interpreted) and section 21, they were disqualified forthwith and have automatically vacated their offices. There is no question of allowing them to retake the oath as a matter of law. 
1. The Plaintiff is the mother of the Defendant, her daughter. The case concerned the transfer of a flat and a shop (collectively “the properties”) by the Plaintiff to the Defendant in 1999. The Assignments of the properties showed on their face a purchase by the Defendant of the Plaintiff’s interest in them. The consideration for the shop was said to be $300,000, the consideration for the flat, $500,000. The Plaintiff also signed receipts for these amounts. It was common ground that the Plaintiff did not receive these (or any) amounts from the Defendant. 2. The main issue in the courts below was whether the properties were transferred by way of trust or by way of gift. The Court of First Instance found that the Plaintiff’s intention in making the Assignments was to avoid the threatened actions by the Plaintiff’s husband and not to make a gift of the properties to the Defendant. The legal effect was that the properties were held by the Defendant on resulting trust for the Plaintiff. The Court of Appeal could not fault the Court of First Instance’s analysis of the evidence. 3. The Defendant appealed to the Court under the now repealed “as of right” provision in the Hong Kong Court of Final Appeal Ordinance (Cap 484). 4. The Court held that it did not, save in rare and exceptional cases, review concurrent findings of fact. It was no part of the Court’s function to debate “yet again the factual findings made at first instance and previously reviewed by the Court of Appeal” in the hope on the part of an appellant of finally obtaining favourable findings. Given that the determination of the factual disputes on the evidence was critical to the outcome of the present case and there were concurrent findings of fact before the Court, this appeal was hopeless and amounted to no more than a third attempt by the Defendant to seek to persuade a court to try the case again. 5. The Court held that other legal issues raised by the Defendant were all equally hopeless. 6. Finally, the Court reserved a detailed consideration of the doctrine of the presumption of advancement for another occasion, in particular whether a modern view should be taken of the presumption to include transfers from mother to daughter. 7. Accordingly, the Court unanimously dismissed the appeal with costs. 
1. These two appeals involve questions concerning the requirements of the offences of unlawful assembly and riot under sections 18 and 19 respectively of the Public Order Ordinance (Cap 245). 2. The Appellant in FACC 6/2021 (“Lo”) was charged with and convicted of taking part in a riot in Portland Street in Mongkok on 8 and 9 February 2016. 3. Lo’s appeal against conviction was dismissed by the Court of Appeal. On his main ground of appeal, it was held that the defendants’ common purpose of conducting themselves in a disorderly, intimidating, insulting or provocative manner or in a manner endangering the public peace was sufficient to satisfy a requirement of common purpose. 4. The Appellant in FACC 7/2021 (“Tong”) and two others were jointly charged with taking part in a riot with others in the area of Des Voeux Road West near Western Street on 28 July 2019. Tong was acquitted after trial. 5. In the light of his acquittal, the Secretary for Justice referred two questions of law to the Court of Appeal for its opinion pursuant to section 81D of the Criminal Procedure Ordinance (Cap 221). The Court of Appeal held that the common law doctrine of joint enterprise is applicable to the offences of unlawful assembly and riot, so that a defendant may be convicted of those offences even if not present at the scene. 6. On appeal to the Court of Final Appeal, the following issues regarding the offences of unlawful assembly and riot were addressed: (i) whether there is a requirement for proof of a “common purpose” shared by the defendant and other persons taking part in the unlawful assembly or riot; (ii) the applicability of the doctrine of joint enterprise and whether liability can be established without the defendant being present at the scene; (iii) whether a defendant can be found guilty on the basis of mere presence at the scene; and (iv) whether there was any “substantial and grave injustice” arising from the indictment having made no mention of any participants in the riot other than the named co-defendants who were not convicted after trial. 7. The Court examined the inter-related structure of the two offences and noted that both are participatory in nature. The defendant must be shown not just to have been acting alone but to have taken part in the unlawful or riotous assembly together with others so assembled, being aware of their related conduct and with the intention of so taking part. The Court held that there is no requirement for the persons taking part to share some extraneous common purpose. 8. The Court also held that a defendant who is not present at the scene of an unlawful assembly or riot cannot be found guilty as a principal offender because “taking part” in the criminal assembly is a centrally important element of these statutory offences. That requirement cannot be overridden by the common law doctrine of joint enterprise. 9. The Court further held that the basic form of joint enterprise is not applicable to the offences of unlawful assembly and riot even if the defendant was present at the scene, since its application would give rise to duplication and possible confusion regarding the central element of “taking part” in the criminal assembly. 10. However, the Court emphasised that culpable conduct of both present and absent defendants who promote, encourage or act in furtherance of a criminal assembly is covered by secondary and inchoate liability offences and punishable to the same extent as principal offenders. 11. The Court also held that the extended form of joint enterprise may operate to fix participants in the unlawful assembly or riot with liability for more serious offences if they can be proved to have agreed to take part together in the criminal assembly and foreseen commission by one or more of their number of that more serious offence as a possible incident of the execution of their joint plan. 12. The Court held that mere presence at the scene of an unlawful or riotous assembly without more does not give rise to criminal liability. However, a defendant who, being present, provides encouragement by words, signs or actions may be held guilty of “taking part” or as an aider and abettor of the offences of unlawful assembly or riot committed by others. 13. The Court held that that the indictment of Lo was defective but there was no miscarriage of justice given the ample evidence for the jury to be satisfied of Lo’s guilt beyond reasonable doubt. Disposition 14. Accordingly, the Court unanimously dismissed Lo’s appeal. 
1. The appellants are directors of a dental company that employed a dentist (“JT”) who (unknown to them) continued to practise after failing to renew his practising certificate and consequently was removed from the General Register. They were found guilty of unprofessional conduct by the Dental Council of Hong Kong (“the Council”) for doing so. 2. The Court stated that it would be slow to interfere with a disciplinary body’s assessment of matters which call for clinical judgment or other professional expertise, but the present case does not concern such matters. 3. Three questions arose: First, was the Council right to find the appellants guilty of unprofessional conduct even though they did not know of JT’s unregistered status? Secondly, could they be convicted of unprofessional conduct on the basis that their absence of knowledge was due to their gross negligence? Thirdly, was the Court of Appeal right to hold that directors of dental companies have a professional duty to ensure that only registered dentists are employed by the company and that by inserting a person’s name in an annual return filed by such companies with the Council the directors were warranting that he was a registered dentist? 4. When the case got to the Court of Final Appeal, the Council conceded that the appellants’ convictions could not stand because of procedural unfairness but it asked for the case to be sent back to the Council for a re-hearing. The appellants objected, arguing that there is no power to order a re-hearing and that the Court should in any case refuse such an order on discretionary grounds. 5. In relation to the first two questions, the approach of the Council and the Court of Appeal to unprofessional conduct was closely based on their interpretation of section 12 of the Dentists Registration Ordinance, Cap 156 (“DRO”), which makes it an offence for companies to carry on business using unregistered persons to provide dental services. In so far as the appellants’ convictions were based on section 12, those convictions could not stand since section 12A gives directors a defence if they show that they did not know that the company was carrying on business in breach of section 12, whether or not their lack of knowledge was due to gross negligence. 6. An alternative approach adopted by the Court of Appeal was to uphold the convictions on the basis of a head of unprofessional conduct not based on the section 12 offence. The Court held that this approach was unsound because it did not apply the statutory definition of unprofessional conduct which requires proof of acts or omissions which would be reasonably regarded as disgraceful or dishonourable by registered dentists of good repute and competency. The Court of Appeal’s attempt to justify the convictions solely on the basis of a perceived need to reinforce the statutory registration regime and without reference to the statutory definition was therefore held insufficient. 7. As to the third question, the Court held that the Court of Appeal was wrong to imply the asserted warranty from the words of section 12(3) of DRO. The Court also did not agree that the appellants had “undermined the effectiveness of the registration regime”, as their conduct did not have such a consequence. 8. The Court and the Court of Appeal have jurisdiction to remit a case to the Council for a re-hearing by virtue of the Rules of the High Court. Nevertheless, there are strong reasons why an order should be refused in the present case. Having answered the three questions in the negative, the Council’s purpose would not be achieved by sending the case for a re-hearing. Furthermore, it would not be fair for the appellants to be subjected to a new set of charges tailored to this Court’s judgment. Accordingly, the Court allowed the appeal and refused to send the matter back to the Council. 
Background to the Appeals 1. Since June 2019, Hong Kong has experienced a series of protests in opposition to the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019. The protests have escalated into serious social unrests and public disorder, including assaults on persons, arsons, and vandalisms on public transport facilities and highways. In response to the dire situation, the Chief Executive in Council (“CEIC”) exercised the power under section 2 of the Emergency Regulations Ordinance (“ERO”) and announced the enactment of the Prohibition on Face Covering Regulation (“PFCR”). The applicants in these appeals brought judicial reviews challenging the constitutionality and legality of ERO and PFCR. 2. In its judgment, the Court of First Instance (“CFI”) declared that the ERO was not compatible with the Basic Law (“BL”) and ruled that, while sections 3 and 5 of the PFCR were rationally connected to the legitimate social aims, the restrictions that sections 3(1)(b), (c), (d) and 5 imposed on the fundamental rights went beyond what was reasonably necessary for the furtherance of those objects. It declared that such sections were null, void, and of no effect. The respondents appealed, and each of the applicants cross-appealed. Judgment 3. The Court of Appeal (“CA”) partially allows the respondents’ appeals and dismisses the applicants’ cross-appeals. The CA upholds the constitutionality of the ERO insofar as it empowers the CEIC to make emergency regulations on any occasion of public danger. In respect of the PFCR, there is no challenge against section 3(1)(a) relating to unlawful assembly. The CA upholds the constitutionality of section 3(1)(b) relating to unauthorized assembly. The CA holds that sections 3(1)(c) and (d), relating to public meeting and public procession respectively, and section 5 on police powers in relation to facial covering, are all unconstitutional. Reasons for the Judgment Constitutionality of ERO 4. In holding that the ERO does not contravene the BL as it does not confer on the CEIC general legislative power to make primary legislation: (1) The CA reiterates that the court has jurisdiction and constitutional duty to scrutinize the constitutionality of a pre-1 July 1997 law adopted as part of the laws of the HKSAR. In so doing, the court upholds the preeminence of the BL as a living constitutional instrument over all pre-1 July 1997 law even after adoption as laws of the HKSAR, which is consistent with the purpose of article 160 of the BL and the Decision of the Standing Committee of the National People’s Congress (“NPCSC”) dated 23 February 1997. (2) The CA holds that the constitutionality of the ERO is informed by the theme of continuity. After reviewing the relevant law and authorities, the CA observes that for the exercise of the general legislative power, the constitutional arrangement under the BL broadly resembles the past before 1997 subject to the change of constitutional order. (3) Before 1997, the Pre-97 LegCo was the legislature of Hong Kong vested with general legislative powers exclusively by the Letters Patent. The Governor was not. The Pre-97 LegCo was bound by the Letters Patent and other constitutional requirements in exercising its general legislative powers. Under the common law, subject to the restriction that it could not abdicate its general legislative powers, the Pre-97 LegCo could delegate to the Governor limited legislative power to make subordinate legislation by virtue of a specific enabling ordinance. When called upon, the courts would examine the enabling ordinance and the regulations made thereunder to see if they were ultra vires the Pre-97 LegCo or the enabling ordinance, as the case might be. (4) After 1997, the LegCo is the only institution vested with general legislative powers exclusively under the BL. The CE does not have the general legislative power to legislate. In exercising its functions and powers, the LegCo is bound by the BL and other constitutional requirements. Under the same common law principle, the LegCo can delegate to the CE power to make subordinate legislation by an enabling ordinance, as acknowledged under article 56(2) of the BL. When a challenge is made, the court can examine the constitutionality of the enabling ordinance, or the constitutionality of the subordinate legislation made thereunder, as the case may be. (5) The CA therefore holds that under the constitutional framework of the BL, the LegCo can delegate to the CEIC legislative powers by an enabling ordinance to make emergency regulations provided that they are subordinate legislation. (6) The CA further holds that the BL contemplates a wide range of options available to the NPCSC and the Government allowing different and specific measures to be made to address the varying exigencies of emergency or public danger generally: (a) In the case of a declared state of war or turmoil endangering national unity or security beyond the control of the Government, the Central People’s Government (“CPG”) may issue an order applying the relevant national laws in Hong Kong: article 18. (b) The Government may ask the CPG for assistance from the garrison for maintenance of public order or disaster relief: article 14(3). (c) The CE may adopt executive and administrative measures in emergencies: article 56(2). (d) The CE may make a request to the President of the LegCo to convene an emergency session of the LegCo: article 72(5). (e) The CE may invoke the ERO to make emergency regulations. As article 56(2) of the BL recognizes, under the common law, the CE can make emergency regulation pursuant to an enabling ordinance. As at 1 July 1997, the only piece of enabling ordinance in that regard was the ERO. So both the ERO and the CE’s power to invoke it to make emergency regulations were clearly within the contemplation of the drafters of the BL. They must have regarded the ERO to be compatible with the BL so that it would remain as part of the laws of HKSAR after 1997. Based on past invocations, it is powerful and versatile enough to enable the CE to legislate speedily and effectively to meet all and every kind of emergency and public danger that imposes serious and subsisting threats to Hong Kong and its citizens. (7) The theme of continuity strongly suggests that the ERO, as an integral option for tackling emergency and public danger, is constitutionally compliant. If the ERO were held to be unconstitutional, it would leave a significant lacuna in the law. The CE would be deprived of the powers to respond swiftly, flexibly and sufficiently by the necessary making emergency regulations even though the circumstances clearly warrant it and it is in the public interest to do so. (8) The CA further holds that the constitutionality of the ERO is also supported by a proper construction adopting an updated analysis of its principal features with reference to contemporaneous jurisprudence. The ERO confers on the CEIC limited power to make subordinate legislation, and not primary legislation, in a state of emergency or public danger: (a) Under the relevant law, if a sudden emergency arises it may be essential to give the executive wide and flexible powers to deal with it by emergency regulations whether the legislature is sitting or not. By nature, emergency or public danger is not capable of exhaustive definition, which means that usually a general or board definition is used. It requires an urgent and effective response to avoid an imminent threat, prevent a worsening of the situation or mitigate the effects of the emergency. The executive needs wide and flexible powers to deal with every and all exigencies expeditiously and effectually. The emergency regulations are necessarily wide and extensive in scope. They may even dis-apply or amend a primary legislation. Considered in this proper context, the width and extensive scope of emergency regulations that can be made by the CEIC under the ERO does not render them to be primary legislations in nature. (b) Because of the contrary context, various provisions of the ERO have dis-applied the relevant provisions of the Interpretation and General Clauses Ordinance (Cap 1). (c) The CE’s decision to invoke the ERO and the emergency regulations made are subject to close scrutiny. She can only invoke it when there is a public danger, which condition must be strictly adhered to. Her decision that an occasion of public danger existed is subject to judicial review. She must also act bona fide in furtherance of the statutory purpose of the ERO. The emergency regulations are subject to judicial review on their constitutionality and vires. Their duration is also subject to judicial review. (d) The emergency regulations made under the ERO are subject to the negative vetting procedure. Under the procedure, the Government will ordinarily present a LegCo Brief, which is a public document and supply further information as requested by the LegCo. The LegCo Brief and such information will provide the necessary materials to facilitate the mounting of a legal challenge. (e) The LegCo exercises control over the emergency regulations made by the CE under the ERO by means of the negative vetting procedure or by repeal by primary legislation. Constitutionality of PFCR 5. The PFCR imposes restrictions on fundamental rights and must satisfy the prescribed by law requirement and the proportionality test. In determining whether the PFCR satisfies the proportionality test, the CA adopts the stricter standard of no more than necessary. It was accepted by the applicants’ counsel that section 3(1)(a) of the PFCR (prohibition in respect of unlawful assembly) was proportional. 6. Section 3(1)(b) concerns the use of facial coverings at an unauthorized assembly. The CA first points out that the rights of demonstration and of assembly are not absolute. Restriction on freedom of peaceful assembly in public places may serve to protect the rights of others with a view to preventing disorder and maintaining an orderly flow of traffic. In analyzing different scenarios of unauthorized assembly as envisaged under section 17A(2) of the Public Order Ordinance (“POO”), the CA rules that the power under POO must be exercised for the purpose of maintenance of public safety, public order, and the protection of the rights and freedom of others. Further, such exercise must be subject to the test of proportionality on an operational level. Unless there are violent or other reprehensible conducts of the part of some demonstrators posing serious and imminent risk to public order, there should be prior warnings and the issuance and announcement of an order under section 17(3) of the POO before more drastic actions like arrests and dispersals are taken. After an order for stop and dispersal, the gathering should be discontinued. A person cannot be found to have refused, or willfully neglected, to obey such an order unless that person is aware of the order; and a person cannot be regarded as knowingly taking part in an unauthorized assembly unless he or she is aware of the unauthorized nature of the gathering or the order for stop and dispersal. 7. The CA holds that there are valid and serious public order concerns for unauthorized assembly. The CA highlights the pre-emptive nature of the provisions relating to unauthorized assembly and there are safeguards in the actual operation of the POO regime against unjustified interference with the rights of peaceful demonstration and assembly. 8. The CA construes person “at an unauthorized assembly” to include those remain at the assembly after being aware of the unauthorized nature of the assembly and reasonable opportunity have been given to him to disperse and leave the scene. The CA stresses that it should be the duty of all citizens who treasure the rule of law as the core value to maintain the rule of law. Hence, in the wake of an order for stop and dispersal, a responsible law-abiding citizen should follow the direction instead of remaining there in defiance of such order and direction. By remaining at the assembly, even without the commission of further act of violence, such person perpetuates the worsening situation which could potentially escalate to serious violent confrontations and frustrate the crowd control scheme. 9. On the other hand, a mere bystander or passer-by cannot be regarded as people “at the assembly”. 10. When a person lawfully wears a mask in a lawful public assembly or procession, which is somehow hijacked by others participating in it, that person should be able to resort to the defence of reasonable excuse under section 4of the PFCR so long as they are not aware of any order made under section 17(3) of the POO or they have not had a reasonable opportunity to leave the scene after becoming so aware. 11. Section 3(1)(b) can be considered on its own. Given the public order concerns in respect of unauthorized assembly amidst the fluidity in terms of the rapid deterioration of many large scale processions and demonstrations into violent riots with most of the rioters adopting the black bloc strategy to escape from responsibility for very serious criminal acts, the CA is of the view that such ban is no more than necessary to achieve the legitimate aims. The need to deter people from wearing facial coverings to frustrate the legitimate aims of the statutory scheme under the POO applies with equal force in the context of unlawful assembly as well as unauthorized assembly. 12. The CA is also satisfied that on a systemic level the prohibition under section 3(1)(b) of the PFCR strikes a fair balance between the societal benefits pursued by the restriction and the inroads made to the rights of the individual subject to the same. 13. For these reasons, the CA reverses the CFI’s holding on the proportionality of section 3(1)(b). 14. In light of the power to regulate the safe and peaceful conduct of lawful assembly and the power to disperse a gathering when it was hijacked by violent or disorderly conducts, the CA finds no justification for the further restrictions on the lawful public assembly or public procession under sections 3(1)(c) and (d). 15. As regards section 5 of the PFCR, the CA considers that the police have already had the power to order a person to reveal identity by removing facial covering under section 54(1)(a) of the Police Force Ordinance and section 49(1) of the POO. The powers conferred under section 5 are much wider. It involves a temporary restriction on the liberty of a person, and an interference of the privacy of a person. It finds that the statutory powers already in place are sufficient to address the law enforcement objectives. The CA finds no justification for a wider power envisaged under the section, and that such wide and unqualified power also contravenes the concept of law providing proper safeguard against arbitrary interference of fundamental rights. For these reasons, the CA upholds the CFI’s decision that section 5 failed to meet the proportionality test. ERO not impliedly repealed 16. The CFI held that the ERO was not impliedly repealed by the Hong Kong Bills of Rights Ordinance (“HKBORO”). The applicants in HCAL 2945/2019 cross-appealed against this ruling. The CA agrees with the CFI that a permissible, and indeed the proper, construction is that the ERO is to be read subject to section 5 of the HKBORO. The CA rejects the submission that such a construction was inappropriate and unworkable. When and even if a regulation enacted by the ERO does have the effect of derogating from any rights protected under the HKBORO, such a regulation is still subject to the tests of “prescribed by law” and “proportionality”. For these reasons, the CA upholds the CFI’s ruling in this respect. ERO is prescribed by law 17. The CFI also held that the ERO did not fall foul of the “prescribed by law” requirement. All the applicants in these appeal cross-appealed against this ruling. It was submitted that section 2(1) of the ERO did not meet the “prescribed by law” requirement because it was too uncertain in law as to the scope of the power conferred on the CEIC and the manner on which it exercised its power. The CA agrees with the CFI that the ERO does not by itself restrict or limit any fundamental rights. It is therefore not subject to a “prescribed by law” requirement challenge. Rather, if and when a particular regulation enacted under the ERO which does provide restrictions on the rights, such a regulation must then meet the “prescribed by law” requirement. The CA further holds that, in any event, on a proper construction, the ERO cannot be said to have conferred “unfettered and unlimited” power on the CEIC with “no independent safeguards against abuses or excesses”. The reasons are that first, the true nature of emergency regulations makes it impossible to provide exhaustive definition in advance. Second, the mere use of general wordings in an enactment does not by itself necessarily mean that it falls foul of the legal certainty test. Whether it does so is still a question of construction made in its proper context. Finally, the exercise of power under the ERO and the emergency regulations are subject to negative vetting and judicial review scrutiny. For these reasons, the CA rejects the applicants’ cross-appeal on this ground. ERO permits the enactment of PFCR 18. The CFI rejected the applicants’ argument that the general wordings of section 2(1) of the ERO did not allow the Government to adopt measures that infringe the fundamental rights of an individual and hence the PFCR was illegal. By a Respondent’s Notice, the applicants in HCAL 2945/2019 asked the CA to affirm the CFI’s judgment also on this ground. The CA rules that, by adopting purposive interpretation, in using the general wordings, the legislature objectively intended section 2(1) to permit, if necessary, the imposition of restriction on rights and freedoms when enacting a relevant regulation under the ERO. This is so as, because of its nature, the general wordings of the ERO were intended to confer a wide power on the CEIC to enact regulation and to implement measures to combat emergency and public danger. The CA also accepts the respondents’ submissions that, when reading the ERO as a whole, the legislature when enacting the ordinance did have the objective intent that regulations enacted under the ERO may, if necessary, impose restrictions on rights and freedoms. For these reasons, the CA refuses to affirm the CFI’s decision based on this ground. 
1. The Taxpayer was Group CFO and executive director of his employer. On 20 July 2008, they entered into a Separation Agreement, terminating the Taxpayer’s employment. The Taxpayer was (i) paid a sum of money (“Sum D”) described as taking the place of a discretionary bonus, and (ii) given share options which ultimately resulted in a gain for the Taxpayer (the “Share Option Gain”). 2. The appellant assessed these two items to salaries tax. The Taxpayer successfully challenged this at the Court of Appeal, having previously lost before both the Board of Review and the Court of First Instance. Issue 3. The issue was whether Sum D and the Share Option Gain were income “from employment” under section 8(1) of the Inland Revenue Ordinance (Cap 112). That provision would include payments that were rewards and/or inducements for past, present or future employment. On the other hand, payments that were for something else were not caught and not chargeable to salaries tax. 4. In relation to Sum D, the Court looked at the substance of the payment to see if it was paid in substitution for a discretionary bonus the Taxpayer might have received as an employee. Where bonuses are concerned, an employer’s results and an employee’s performance are both matters of substance. Since the bonus decision process had not even begun when the Taxpayer was terminated, Sum D was wholly different in nature from any discretionary bonus. It was paid to make him go away quietly, and was the “antithesis” to a reward for past services. 5. In relation to the Share Option Gain, the Court found that the share options had been an acceleration, under the Separation Agreement, of prior share option rights given to the Taxpayer while employed. However, those prior rights were lost upon termination. Without the acceleration, the Taxpayer would never have received anything at all. It was plain from the evidence that the acceleration was not given to the Taxpayer as a reward for past services, but for something else: to make the Taxpayer go away quietly. 6. Generally, the Court distinguished between two situations; sometimes what an employee received was in satisfaction of his rights under his contract, at other times it was in abrogation of those rights. The former was taxable but the latter was not. Considered in terms of abrogation, the Separation Agreement abrogated whatever rights the Taxpayer may have had under his employment contract. He agreed to this in return for what was given to him to make him go away quietly. 7. Therefore, both Sum D and the Share Option Gain were not income from employment, and not therefore chargeable to salaries tax. DISPOSITION: 8. Accordingly, the Court unanimously dismissed the appeal. 
Background 1. This appeal raises issues concerning the principles applicable where a party seeks leave to resist enforcement of a 1958 New York Convention arbitration award out of time. 2. The eight respondent companies, members of a Malaysian media group (“Astro”), were the claimants in the arbitration. The appellant (“First Media”) is a substantial company listed on the Indonesian Stock Exchange and part of an Indonesian conglomerate (“Lippo”) and was the main respondent in the arbitration. 3. The arbitration was brought by Astro against Lippo pursuant to an agreement for arbitration in Singapore applying Singapore law. The arbitral tribunal joined three of the Astro claimants (“the Additional Parties”)even though they were not parties to the arbitration agreement, overriding Lippo’s objections, and made awards in favour of Astro including an award in a sum exceeding US$130 million. 4. However, when Astro sought to enforce the award in Singapore, the Singapore Court of Appeal reversed the decision of the lower courts (“the SCA Judgment”), and held that the tribunal lacked jurisdiction to make awards in favour of the Additional Parties since they were never parties to the agreement to refer the dispute to arbitration. The Singapore enforcement orders in favour of the Additional Parties were set aside. 5. In Hong Kong, in reliance on the SCA Judgment, First Media applied for an extension of time to set aside Hong Kong orders, entered some 14 months earlier, granting Astro leave to enforce the tribunal’s awards in Hong Kong (“Hong Kong orders”). Decisions of the Courts below 6. The Court of First Instance (“CFI”) refused to set aside the Hong Kong orders, finding that First Media had not acted in good faith by keeping the challenge to the tribunal’s lack of jurisdiction in reserve while proceeding with the arbitration, so that the Court should exercise its discretion to allow Astro to enforce the awards even though First Media came within an exception which would justify refusal of enforcement. Separately, it also refused to extend time for First Media to set aside the Hong Kong orders given (i) the length of the delay, (ii) the fact that a deliberate decision was taken not to apply to set aside within the time prescribed and (iii) the fact that the awards had not been set aside at the seat of the arbitration. 7. The Court of Appeal (“CA”) overturned the CFI’s decision based on the good faith principle, holding that it had failed to take sufficient account of the fundamental defect that the Awards were sought to be enforced for the benefit of the Additional Parties who were never parties to the arbitration agreement and were therefore made without jurisdiction. 8. However, the CA declined to interfere with the CFI’s exercise of discretion not to extend time and endorsed his reliance on the three factors mentioned above. Decision of this Court 9. This Court held that the proper test for considering extension of time involves looking at all relevant matters and considering the overall justice of the case, eschewing a rigid mechanistic approach. This Court also held that except in cases where section 44(2)(f) of the Arbitration Ordinance, Cap. 341 (now repealed) is relied on, the fact that the award has not been set aside by the courts of the seat of arbitration is not a relevant factor to the question of whether time should be extended. 10. Looking at all relevant matters and considering the overall justice of the case, this Court decided to set aside the decisions below and granted the appellant an extension of time. To refuse an extension would be to deny First Media a hearing where its application has decisively strong merits and would involve disproportionately penalising it for a delay which caused Astro no uncompensable prejudice to the extent of permitting enforcement of an award for US$130 million. 11. The Court allowed the appeal and extended time by three months for First Media to file its application for leave to set aside the Hong Kong orders. 
The Respondent is a Hong Kong company whose principal business consists of trading in marketable securities quoted in Hong Kong. According to the applicable accounting principles, unrealised gains or unrealised losses on trading stock were recognized in its profit and loss accounts for the relevant periods. For accounting periods where there were such unrealised gains, in computing the assessable profits for profits tax purposes for the relevant period, the Respondent excluded the unrealised gains on trading stock. However, for accounting periods where there were unrealised losses, such losses were taken into account for the purposes of profits tax assessment. The Appellant was of the view that the unrealised gains arising from revaluing the unsold stock should be included in the profits tax assessments and accordingly issued profits tax assessments to this effect (“Tax Assessments”). The Appellant contends that profits tax should be assessed according to the applicable accounting principles, and since unrealised losses were recognized for profits tax purposes in accordance with the applicable principles, unrealised gains should also be recognized for profits tax purposes in accordance with the applicable principles. The Respondent appealed against the Appellant’s Tax Assessments. The question for decision, therefore, is whether for the purposes of profits tax unrealised increases in the value of trading stock held at the end of the accounting period as a result of the revaluation should be included in the computation of “the full amount of the profits…arising in or derived from Hong Kong during the year[s] of assessment”. The Court of First Instance allowed the Respondent’s appeal. Both the Court of Appeal and the Court of Final Appeal affirmed the Court of First Instance’s decision. The Court of Final Appeal held that the Respondent’s financial statements, prepared in accordance with mandatory international accounting standards, record both profits which the taxpayer has realised during the accounting period and which are assessable to tax and increases in the value of its trading stock during the period which represent unrealised profits and are not assessable to tax. In preparing its tax computations, the Respondent was entitled to remove the amounts of its unrealised profits as not chargeable to tax. It is clear beyond argument that accounts drawn up in accordance with the ordinary principles of commercial accounting must nevertheless be adjusted for tax purposes if they do not conform to the underlying principle of taxation enunciated by the courts even if these are not expressly stated in the statue. In particular, principles of commercial accounting must give way to the core principles that profits are not taxable until they are realized and that profits must not be anticipated. 
1. These appeals arose in the context of matrimonial proceedings. The respondent husband had made a claim in the District Court for ancillary relief in relation to the assets of his wife, the petitioner. He asserted that she held the legal and beneficial interest in 20 million shares in a private company established and controlled by her father. The wife and her father asserted, on the other hand, that although the shares were registered in her name, she held them on trust for the father. The District Court Judge ordered that issue to be tried as a preliminary issue. 2. The case for the father and his daughter at trial was that he controlled the company and he only transferred shares to those of his adult children who helped him in his business with an understanding that if they left the business they were to return the shares and he relied in part on the fact that when one of his sons left Hong Kong he transferred his shares to his father, as did another son when there had been a falling out. The point of transferring shares to his daughter, he said, was to give her more status when dealing with third parties. He also said that he would not have allowed the company to buy properties after the divorce proceedings were in prospect had he thought that the shares were part of the daughter's assets. 3. The District Court Judge held that the shares were part of the wife’s assets. The judge said that the father’s explanation for transferring shares to his daughter was not logical, that had he intended her to hold the shares on trust for him, he would have executed a written declaration of trust as he had previously with one of his sons and once with the daughter, that the daughter was his right hand and that he intended to transfer the shares to her outright. 4. The judge’s decision was upheld and endorsed by the Court of Appeal. That Court noted that the relevant transfers of shares to the wife were made without declarations of trust at a time when the father, according to his own admission, knew what a declaration of trust was and had used such declarations; and the Court agreed that the evidence was entirely consistent with an intention to gift the shares to the daughter. 5. The wife and her father thereupon appealed to this Court, seeking to challenge the findings of the lower courts as to the beneficial ownership of the shares. At the time of the Court of Appeal’s decision in December 2014, the fact that the matter in dispute amounted to more than $1 million was a fact which, on its own, gave a right of appeal to this Court. These appeals came to this Court under that “as of right provision”, a provision which has since been repealed. 6. The appeals were appeals against concurrent findings of fact; in other words the same findings of fact by both the District Court and the Court of Appeal. The established practice is that the Court will not interfere with concurrent findings of fact other than in exceptional and rare circumstances. 7. The wife and her father argued that there were exceptional circumstances which warranted a review by the Court. They said that the trial judge had made inconsistent findings; that he wrongly rejected their evidence even though key assertions by them when they testified had not been challenged; that he did not apply the correct approach in deciding what the father’s intention was when he transferred the shares to his daughter; and that he failed to give enough weight to the history of the father’s dealings with his daughter and her brothers; and that the judge failed to provide adequate reasons for deciding as he did. 8. The Court held that most of the complaints did not warrant other than summary disposal since they did not lend themselves to reasonable argument justifying a full review of concurrent findings. The judge made no inconsistent finding: he found that the father intended to gift the shares to the daughter; the challenge to the father and daughter as witnesses was clear enough; and the judge adopted the correct test in deciding the father's intentions. 9. The Court held that the only issue which warranted review was whether the judge explained what weight he gave to the key events relied on by the father and daughter in support of their case and why, despite those events, the judge found as he did. Those events were the occasions on which shares were returned to the father and the property purchases by the company of property after divorce proceedings were in prospect. 10. The Court held that whilst it would have been preferable for the judge to explain in terms how these events sat comfortably with his finding that, nonetheless, father's intention was to gift shares to his daughter, the judge’s reasoning was sufficiently apparent from a sensible reading of his judgement as a whole. It was the same reasoning as articulated by the Court of Appeal, namely, that the account offered by the father and the wife made no sense either in practical terms or in the light of the documentary history and that since no consideration was paid for the shares the only rational conclusion was that a gift was intended. In the context of this case, the findings were not at odds with the incidents of return of shares on which the father relied. 11. Accordingly, the Court dismissed the appeals. 
Background 1. In August 2014, the Appellant visited an adult website on which the girl had posted an advertisement, describing herself as aged 17 and offering sexual services at listed prices. They arranged to meet and the Appellant took the girl to a guesthouse where they showered together and the Appellant ran his hands over her body. The girl then performed oral sex on him. At trial, the Appellant’s defence was that he held an honest and reasonable belief that the girl was aged 17. He testified that he did not doubt the girl’s age when he looked at her photo or on the day they met. She was in fact 13 years of age. 2. There was no dispute that the girl consented to the Appellant’s acts. However, he was charged with indecent assault, contrary to sections 122(1) and (2) of the Crimes Ordinance (Cap.200) on the basis that a person below under the age of 16 cannot in law give consent to an act of indecent assault. 3. The magistrate acquitted the Appellant, finding that he honestly and reasonably believed that the girl was aged 16 or over, but the Court of First Instance decided that the offence of indecent assault in relation to a girl who is in fact under the age of 16 is one of absolute liability, meaning that the Appellant’s honest and reasonable belief as to her age was no defence. Decision of this Court 4. In deciding whether an offence is one of absolute liability, the starting point is that a statutory offence is presumed to require proof of mens rea (i.e. knowledge or intention on the part of the accused) unless the statute expressly or by necessary implication makes the presumption inapplicable. The Court did not consider absolute liability necessary to achieve the statutory purposes of section 122, and held that the Judge was wrong to treat it as an offence of absolute liability regarding the girl’s age. 5. The Court held that section 122(2) treats girls and boys under the age of 16 as a vulnerable class in need of a high degree of protection against sexual exploitation (deeming them incapable of giving consent to indecent acts) and necessarily implied that the prosecution does not need to prove mens rea as to the girl’s age. It held, however, that the accused has a good defence if he can prove that it was more probable than not that he honestly and reasonably believed that the girl was 16 or over. 6. Given the magistrate’s findings, the Court allowed the appeal, set aside the decision of the Court of First Instance and restored the Appellant’s acquittal. 
Article 24(2)(4) of the Basic Law (the “Article”) provides that persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than 7 years and have taken Hong Kong as their place of permanent residence shall be permanent residents of Hong Kong. The Appellants are both Philippine nationals who entered Hong Kong for employment as foreign domestic helpers (“FDHs”) and have lived here continuously for well over 7 years. However, section 2(4)(vi) of the Immigration Ordinance (“IO”) states that a person employed as a FDH who is from outside Hong Kong is not to be treated as “ordinarily resident” in Hong Kong and so cannot become a Hong Kong permanent resident. The appellants contend that they come within the “natural and ordinary meaning” of the words “ordinarily resided” in the Article so that the restriction in the IO is inconsistent with the Article and unconstitutional. The Court of First Instance accepted their argument but was reversed by the Court of Appeal. The Court of Final Appeal dismissed their appeals. The Court held that the words “ordinarily resided” are capable of assuming different meanings in different contexts and that the meaning asserted by the appellants was not the only meaning. It is always necessary to examine the factual position of the person claiming to be ordinarily resident to see whether there are any special features affecting the nature and quality of his or her residence. The Court held that the immigration status of persons must be taken into account in deciding whether they satisfy the 7-year ordinary residence requirement. The Article requires a valid travel document at the point of entry and makes immigration control a constant feature in the process of building up eligibility during the 7-year qualifying period. The imposition of such controls is consistent with Article 154(2) of the Basic Law which allocates constitutional responsibility for immigration control on the HKSAR Government. The nature of FDHs’ residence in Hong Kong is highly restrictive. Permission for a FDH to enter Hong Kong is tied to employment solely as a domestic helper with a specific employer with whom the FDH must reside under a specified contract. The FDH is obliged to return to the country of origin at the end of the contract and is told from the outset that admission is not for the purposes of settlement and that dependents cannot be brought to reside in Hong Kong. The quality of their residence is therefore far-removed from what would traditionally be recognised as “ordinary residence” and the Court thus held that FDHs do not, as a class, come within the meaning of “ordinarily residence” as used in the Article. As the meaning of the Article interpreted purposively and in context was clear, there was no basis for referring to any extrinsic materials in aid of its interpretation. The respondents argued that if and insofar as the Court considers it necessary to consider the effect of the Interpretation adopted by the Standing Committee of the National People’s Congress on 26 June 1999 (the “1999 Interpretation”), the Court would be bound under Article 158(3) of the Basic Law to refer to the Standing Committee two questions: (i) what is the meaning of an “interpretation” under Article 158(1) of the Basic Law; and (ii) whether the 1996 “Opinions on the Implementation of Article 24(2) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China” referred to in the Interpretation covering the legislative intent of the Article is binding on Hong Kong courts. The Court affirmed that in deciding whether or not to refer questions to the Standing Committee, the Court and the Court alone must be satisfied on 3 conditions: (i) classification – that the provision of the Basic Law in question relates to (a) affairs which are the responsibility of the Central People’s Government or (b) the relationship between the Central Authorities and the HKSAR; (ii) necessity – that it is necessary to interpret provisions covered in condition (i) to adjudicate the case and the interpretation will affect the judgment; and (iii) arguability – that the argument that necessitates an interpretation is not a “plainly and obviously bad” one. If all 3 conditions are satisfied, the Court must make a reference to the Standing Committee. The Court held that while the classification condition is satisfied in the present case since Article 158 of the Basic Law concerns the relationship between the Central Authorities and the HKSAR, the necessity condition is not met since the Court has reached a conclusion on the meaning of the Article without need to refer to the 1999 Interpretation. Hence, it is unnecessary to consider whether the arguability condition is satisfied. The request for a reference was therefore rejected. 
1. Tang was the registered owner of a property developed under a government housing scheme for civil servants (“Property”). Under the legal assignment by which Tang purchased the Property, there was a non-alienation clause, which prohibited Tang from assigning or charging the Property without the consent of the Financial Secretary Incorporated (“FSI”). Such consent would usually be granted upon payment of a premium. To secure the performance of the non-alienation clause, a legal charge in favour of FSI was created. 2. In 2014, Tang took a loan of $2.2 million from the Appellant. To comply with the non-alienation clause, Tang assigned the balance of all future sale proceeds of the Property receivable by himself as security for the repayment of the loan. The loan agreement was registered in the Land Registry. 3. Subsequently, Tang took another loan of $1 million from the Respondent. In 2015, Tang defaulted in the repayment of the loan. After obtaining judgment on the debt, the Respondent also obtained charging orders nisi and absolute against the Property. An order for sale of the Property in enforcement of the charging order was later made and the Property was agreed to be sold to a purchaser. Both the charging orders and the order for sale were registered in the Land Registry. 4. The Court of First Instance held that (a) as the assignment of sale proceeds to the Appellant did not create any interest in or otherwise affect the Property, the Appellant’s loan agreement was not registrable and had to be vacated in the Land Registry; (b) as the charging order obtained by the Respondent was a charge on Tang’s beneficial interest in the Property itself, the Respondent’s interest had priority over any unregistrable interest that the Appellant had in any future sale proceeds. 5. The Appellant only appealed against the decision on the issue of priority, but not the decision to vacate the registration of the Appellant’s loan agreement. The Court of Appeal dismissed the appeal on the ground that the Appellant's interest was in a different class from that of the Respondent. On appeal, the only issue before this Court was the priority to the sale proceeds of the Property between the Appellant and the Respondent. 6. The Court held that pursuant to section 20B(3) of the High Court Ordinance (Cap 4), a charging order shall have the like effect of an equitable charge created by the debtor by writing. An equitable charge confers on the chargee a right to have the charged property made available by a court order. Therefore, a charging order or an equitable charge gives the chargee a proprietary interest in the property. It affects the land itself and is an encumbrance on the property. This is so despite that (a) the charge does not involve any transfer of legal or equitable ownership, (b) the interest in the charged property is inchoate and ineffectual until a court order is made. 7. On the other hand, the equitable assignment of the sale proceeds did not give the Appellant any proprietary interest in the Property itself at all, and did not constitute an encumbrance on the Property. The charge over the Property created by the charging order in favour of the Respondent was therefore not subject to the earlier assignment of the future sale proceeds. The Appellant’s entitlement to the sale proceeds was only derived from Tang’s entitlement to the surplus of the sale proceeds, if any, upon the sale of the Property. 8. The Court therefore held that the Respondent ranks prior to the Appellant in relation to the sale proceeds. DISPOSITION 9. Accordingly, the Court unanimously dismissed the appeal. 
1. The respondent was injured at work and brought proceedings against his employer for common law damages of over $4.7 million. The appellant (“the Board”) administers the Employees Compensation Assistance Fund, a last resort fund for injured employees who establish liability for work-related injuries but who are unable to recover from their employers or any insurer. Since the respondent’s employer had no insurance cover, the respondent’s claim was potentially payable out of the Fund, and so the Board joined in the proceedings to participate in the assessment of damages. 2. At the start of the trial, the respondent and the Board settled his potential claim against the Fund for $1,420,000. The employer was not party to this settlement and the trial went ahead, damages payable by him to the respondent eventually being assessed at HK$1,428,547, with the employer being ordered to pay the respondent’s costs. The trial judge held that the court has power to order the Board to pay costs, but declined to do so, ordering the respondent and the Board each to bear their own costs. The Court of Appeal dismissed the respondent’s appeal against the refusal of costs against the Board and did not accept the Board’s argument that there was no jurisdiction to order costs against it in such proceedings. 3. The Board raised two questions before this Court. The first was whether the courts have power to make costs orders against the Board in proceedings for common law damages to which it has been joined as a party. The second was whether the Board has the power to enter into binding settlements regarding potential claims for payments out of the Fund, and the legal effect of such settlements. First question: the courts’ power to order the Board to pay costs 4. The Court rejected the Board’s argument that section 20B(3) of the Employees Compensation Assistance Ordinance (Cap 365) (“the Ordinance”) deprived the court of power to order the Board to pay costs in common law actions. It held that section 20B(3) only means the Board cannot be liable for costs awarded against the employer, but does not otherwise address or limit the court’s power to order costs against the Board. 5. Instead, the Court held that such a power exists by virtue of the general power to order costs conferred upon the courts by the High Court Ordinance. Moreover, section 29 of the Ordinance also recognises such a power, as it envisions the Board making settlement offers that may entail costs consequences. 6. The Court further held that where the Board has been joined as a party and properly carries out its functions, the appropriate starting-point for costs orders should be for each party to pay its own costs instead of the “loser pays the costs” principle, but that the court retains a wide discretion to order otherwise. Second question: the Board’s power to settle 7. The Court held that section 29 of the Ordinance empowers the Board to settle claims. Settlement is an alternative route to obtaining relief and disposing of the employee’s claim against the Fund. The Board has power to decide whether to settle and to determine what amount is reasonable, arriving at its decision in good faith after making due inquiries. 8. Once the potential claim against the Board is settled, the employee should not need to pursue the action against the employer further. The settlement agreement is a binding contract between the Board and the employee and is not affected by the outcome of any subsequent judgment which the employee might obtain against the employer. DISPOSITION: 9. Accordingly, the Court unanimously dismissed the Board’s appeal. 
The applicant pleaded guilty before the District Court Judge to a charge of incitement to secession, contrary to Articles 20 and 21 of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”). The judge categorized the applicant’s case as serious, warranting a prison term between 10 years and 5 years as prescribed in NSL 21. After adopting a starting point of 5 years and 6 months, the judge was minded to give a one-third discount to reflect the guilty plea but, upon submission by counsel, held that the minimum of 5 years was mandatory. She consequently sentenced the applicant to 5 years’ imprisonment. The applicant sought leave to appeal against sentence, arguing that the judge erred in (1) categorizing his offence as serious; and in (2) construing NSL 21 as mandating a minimum of 5 years’ imprisonment for serious cases and in failing to take into account NSL 33(1) to bring the sentence below 5 years. The Court of Appeal dismissed the applicant’s application for the following reasons. 1. Applying HKSAR v Ma Chun Man [2022] HKCA 1151, the Court of Appeal agreed with the Judge’s categorization of the case as serious: 1.1 As admitted by the applicant, he was one of the two administrators of the Telegram channel in question. The channel carried posts and re-posts of a secessionist nature, inciting hatred against the Central Authorities, the People’s Republic of China, the HKSAR and the police, and were related to subjects such as Hong Kong independence and anti-communism. The posts contained slogans and expressions such as “光復香港，時代革命” (“Liberate Hong Kong, Revolution of our times”) and “香港獨立” (“Hong Kong independence”). The channel organized polls and/or shared polls by others with secessionist contents, with many responses, and offered for sale weaponry and gear. The administrators also used the channel to raise funds for the secessionist cause. 1.2 The Court of Appeal took the view that although the scale and severity of violent protests had declined by the time the offence was committed, Hong Kong was still facing considerable threats and risks to national security and public disorder. The threats and risks posed by the applicant’s incitement were real. 1.3 The Court of Appeal reiterated that incitement by the use of social media is an aggravating feature. The aggravation lies in the extreme effectiveness of social media in providing a means or platform to individuals with the ease and ability to communicate or disseminate instant messages or content to a vast audience without physical contact or geographical constraints, thereby amplifying the effects of the incitement and increases exponentially the threats and risks it poses to national security. Telegram is a widely used platform. The applicant used a public channel which all Telegram users could access the posts therein. There were 1,040 users who had joined and subscribed to the channel at or about the time of the applicant’s arrest, not a negligible number. 1.4 The Court of Appeal found that there were other aggravating factors in the applicant’s conduct. They included denouncing the NSL as a piece of waste paper; posting secessionist messages and videos on sensitive dates with high risks of provoking secessionist and other unlawful acts; acting in joint enterprise with another; arousing public attention and discussion in the guise of organizing and/or sharing polls; using secessionist materials with a view to advocating secession; offering for sale of weaponry and gear, thus encouraging the use of violence; and using the channel to raise funds for the secessionist cause. 2. The Court of Appeal further agreed with the judge’s finding that the offence fell within the lower end of the serious category of NSL 21. As the adopted starting point of 5 years and 6 months’ imprisonment was within reasonable bounds, there was no basis for the Court to disturb it as being manifestly excessive. 3. The Court of Appeal identified two core issues concerning the legislative intention and effect of NSL 21 and NSL 33(1): 3.1 Whether, in prescribing the range of penalty for serious offences, it is the legislative intention of NSL 21 to lay down a range of starting points between 10 years and 5 years or to set 5 years as a mandatory minimum? 3.2 Whether, in specifying the three conditions, it is the legislative intention of NSL 33(1) to set out exhaustively the mitigating circumstances that may allow the court to adjust the penalty for a serious NSL 21 offence to below the minimum of five years? 4. In ascertaining the legislative intention of NSL 21 and NSL 33(1), the Court of Appeal adopted the contextual and purposive approach laid down by the Court of Final Appeal in HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33 in their construction. The Court of Appeal held thus: 4.1 The NSL was enacted against the background of grave and unprecedented national security risks in the HKSAR; and that the NSL and local sentencing laws should operate in tandem to achieve the aim of safeguarding national security in the Region, giving priority to NSL provisions in case of inconsistency. 4.2 As an integral component of safeguarding national security, preventing, suppressing and imposing punishment for NSL offences is distinctly stated in NSL 1 as a primary purpose of the NSL (“the Primary Purpose”), highlighting its immense importance in the overall scheme of the NSL. 4.3 The NSL specifically emphasizes the Primary Purpose when referring to criminal proceedings and penalty, requiring strict and full application of the NSL and local laws to effectively prevent, suppress and punish offences endangering national security: NSL 3(3), NSL 8 and NSL 42(1). 4.4 The imperative in the NSL on strict and full application of laws to further the Primary Purpose (“the Imperative”), when applied to the penalty regimes in the NSL, means that priority should be given to the penological considerations of deterrence, retribution, denunciation and incapacitation (“the Penological Considerations”). It follows that the construction of NSL 21 must give full effect to the Penological Considerations. 4.5 In the context of the NSL, because of the Imperative, not all mitigating circumstances are applicable to the sentencing of NSL offences. Only those which do not compromise the Primary Purpose are permissible. This informs the construction of NSL 33(1). 4.6 The Imperative governs the application of local sentencing laws to the sentencing of NSL offences. To achieve convergence, compatibility and complementarity with NSL 21, local sentencing laws on mitigation can apply only if they do not prejudice the Penological Considerations. To achieve the same result with NSL 33(1), local sentencing laws on mitigation can apply only if they do not compromise the Primary Purpose. 4.7 The choice of imprisonment as the only penalty option for serious NSL 21 offences and the stipulated range reflects the drafters’ judgment as to the gravity of these offences and how to give full effect to the Penological Considerations to further the Primary Purpose in their sentencing. Viewed purposively, the minimum of 5 years is mandatory. 4.8 On a proper construction, NSL 33(1) provides for three disposals by the sentencing court: (1) 從輕處罰, imposing a lighter penalty within the applicable tier; (2) 減輕處罰, reducing the penalty from the upper tier to the lower tier; (3) 免除處罰, exempting penalty. 4.9 It is the weight of the mitigation that determines if the court should從輕處罰 or 減輕處罰. In sentencing an NSL 21 offence, if the court decides to從輕處罰, it may impose a lighter penalty within either of the applicable tiers. For serious offences, whatever discount the court may give, the ultimate sentence cannot go below the mandatory minimum of 5 years’ imprisonment. In contrast, if the court decides to減輕處罰, it may reduce the penalty below 5 years’ imprisonment. 4.10 The three conditions specified in NSL 33(1) do not compromise the Primary Purpose. They are in fact conducive to achieving it because they are broadly consistent with such purpose. 4.11 Moreover, among all forms of mitigation, the specification of the three conditions, without more, is intentional. It reflects the drafters’ judgment that they are the only relevant conditions in the context of national security which may allow the court to not only 從輕處罰 (impose a lighter penalty) but also 減輕處罰 (reduce a penalty), without prejudicing the Penological Considerations or compromising the Primary Purpose. The legislative intention is plainly that as specified conditions in NSL 33(1), they are exhaustive. 4.12 However, it is also the legislative intention that local sentencing laws on mitigation are to operate in tandem with the NSL, provided that they do not prejudice the Penological Considerations or compromise the Primary Purpose. Thus, as accepted by the respondent, other mitigating factors not specified in NSL 33(1) but recognized under the common law, such as guilty pleas, can operate in full for the court to consider 從輕處罰 (imposing a lighter sentence within the applicable tier). For whatever the discount those mitigating factors may afford, the ultimate sentence stays within the range for the tier, and thus accords with the drafter’s judgment as to the gravity of and Penological Considerations for NSL 21 offences. As such, they do not compromise the Primary Purpose. 4.13 However, these other mitigating factors cannot apply to 減輕處罰 (reducing the sentence for a serious case below the minimum of 5 years). For if they were to apply to discount the sentence below 5 years, it would contradict the drafter’s judgment as to the gravity of serious NSL 21 offences and prejudice the Penological Considerations for such offences, thereby compromising the Primary Purpose. As such, they are not compatible with either NSL 21 or NSL 33(1). 5. In conclusion, the Court of Appeal held that the applicant’s offence was correctly categorized as serious; and that his guilty plea could not apply to adjust the ultimate sentence below the mandatory minimum of 5 years. The Court of Appeal therefore upheld the imposed sentence of 5 years’ imprisonment and dismissed the applicant’s application for leave to appeal against sentence. 6. With regard to the respondent’s attempt to rely on Mainland sentencing law for the construction exercise, the Court of Appeal observed that according to the Explanation on the “Draft [NSL]” addressed to the 19th Session of the 13th Standing Committee of the National People’s Congress by the Responsible Official of the Legislative Affairs Commission under the Standing Committee of the National People’s Congress (18 June 2020), one of the working principles for drafting the NSL was to strive to address the convergence, compatibility and complementarity between the NSL, and the relevant national laws and local laws of the HKSAR. Accordingly, the relevant Mainland law may in principle inform the construction of the NSL or a particular NSL provision. As to which particular Mainland law is relevant for the construction exercise, how and to what extent it is relevant, and how to make reference to it must depend on the actual circumstances of the case before the court. For the present case, the need to refer to Mainland sentencing law for construing NSL 21 and NSL 33(1) did not arise. 
1. This appeal concerned 13 parking spaces in Gold King Industrial Building, an industrial building in Tsuen Wan (the “Building”). The 1st Appellant was the agent of the other Appellants, who were the first owners of the Building (the “First Owners”). The Respondent is the Incorporated Owners of the Building. The First Owners let the 13 parking spaces to the Respondent between 1998 and 2006. 2. The Appellants claimed that the 13 parking spaces are owned by the First Owners, while the Respondent contended that they are common parts of the Building. Both the trial judge and the Court of Appeal found in favour of the Respondent. 3. The Court agreed with the lower courts for four main reasons. First, the 13 parking spaces fell within the definition of “common areas” in the Deed of Mutual Covenant in respect of the Building. Second, only ownership shares but not management shares were issued in respect of the 13 parking spaces, which suggested that they were intended for common ownership. Third, the 13 parking spaces had to be reserved for common areas to comply with conditions in the Government Grant for the parking, loading and unloading of vehicles. Fourth, there would be considerable practical difficulties if the 13 parking spaces were not common areas. 4. The First Owners could not rely on the principle of estoppel by convention. This principle is concerned with persons entering into a transaction or legal relationship in reliance on a common assumption. However, since the trial judge had denied the Respondent’s claim for repayment of the rent paid in respect of the 13 parking spaces, the First Owners failed to show that any detriment had arisen from the transactions with the Respondent. 5. Accordingly, the Court dismissed the appeal. 
1. The Appellant was charged with an offence of contempt, contrary to s.17(c) of the Legislative Council (Powers and Privileges) Ordinance (Cap. 382) (“LCPPO”). S.17(c) LCPPO provides that: “Any person who – … (c) creates or joins in any disturbance which interrupts or is likely to interrupt the proceedings of the Council or a committee while the Council or such committee is sitting, commits an offence…” 2. The Prosecution alleged that on 15 November 2016, during a joint meeting of the Legislative Council (“LegCo”) Panel on Housing (of which the Appellant was a member) and the Panel on Development, the Appellant, then a LegCo member, snatched the Under Secretary for Development’s folder from the bench in front of him. He then passed the folder containing confidential documents to another LegCo member to read. The Appellant ignored the Chairperson’s repeated demands for him to return the folder and resume his seat. Eventually, the joint meeting was suspended. 3. At the defence’s request, the Magistrate gave a ruling on preliminary issues concerning the ambit of s.17(c) LCPPO. The Magistrate ruled that s.17(c) LCPPO did not apply to the Appellant as a LegCo member. Upon appeal by the Prosecution, the Court of Appeal held that s.17(c) LCPPO did apply to LegCo members and that the privilege under s.3 LCPPO (as explained below) did not apply to conduct contrary to s.17(c) LCPPO. 4. In the appeal before this Court, the Appellant contended that he was not subject to liability under s.17(c) LCPPO for the following reasons. 4.1.First, the constitutional protection of freedom of speech and debate or proceedings in LegCo, as provided by s.3 LCPPO, in addition to s.4 LCPPO and art.77 of the Basic Law (“BL”), was absolute. Section 3 provides that: “There shall be freedom of speech and debate in the Council or proceedings before a committee, and such freedom of speech and debate shall not be liable to be questioned in any court or place outside the Council.” 4.2.Second, the principle that the courts will not intervene in the conduct of LegCo proceedings, as explained by this Court in Leung Kwok Hung v President of the Legislative Council (No.1) (2014) 17 HKCFAR 689. 5. At the outset, the Court held that “disturbance” was defined as the interruption or breaking up of the proper functioning of LegCo, particularly when the rights of others have been interfered with. On its face, the Appellant’s alleged conduct was caught by s.17(c) LCPPO. Freedom of speech and debate or proceedings in LegCo 6. However, the Appellant argued that, so long as his alleged conduct occurred during the business of a LegCo meeting, s.3 LCPPO granted him, as a LegCo member, immunity from prosecution. The Appellant relied on art.9 of the UK Bill of Rights 1689 (on which s.3 LCPPO is modelled), which extended its protection to “proceedings in Parliament”. The Court noted that s.3 LCPPO and art.9 of the Bill of Rights 1689 are different. Unlike art.9, s.3 LCPPO does not refer to “proceedings” generally, but to “speech and debate”. Similarly, s.4 LCPPO refers to “words spoken…or written”, whilst art.77 BL refers to “statements”. At the same time, s.17(c) provides a criminal offence of contempt for interruptive disturbances. 7. The question of whether any particular conduct falls within the protected freedom of speech and debate therefore depends on a proper construction of the relevant provisions of the LCPPO as a whole. The LCPPO is designed to protect the freedom of speech and debate in LegCo, allowing members to express their opinions without inhibition. Equally, the LCPPO is also designed to create a secure and dignified environment in LegCo, allowing it to perform its constitutional functions without disruption or disturbance. 8. The Court held that the Appellant’s conduct did not fall within the speech or debate protected by ss.3 and 4 LCPPO or art.77 BL. If the Prosecution’s case were to be established, the Appellant’s conduct would have created a disturbance by various acts, including crossing the floor of the chamber during a debate and snatching property belonging to someone else which he passed to a third party over the owner’s objections. In doing so, he was not making a speech, nor was he participating in debating any business that was before the meeting. 9. The Court observed that its conclusion the Appellant did not come within the protection of ss.3 and 4 or art.77 BL did not mean that the freedom of speech and debate in LegCo was qualified. The freedom of expression includes the manner in which a person expresses their views. Nevertheless, conduct which does not form part of any speech or debate in LegCo falls outside the s.3 LCPPO privilege. Here, the Appellant plainly was not engaged in speech and debate in LegCo when he acted in the way alleged. Non-intervention principle 10. The Appellant further submitted that courts should not exercise jurisdiction over charges under s.17(c) LCPPO, as the courts recognise the exclusive authority of LegCo in managing its own internal processes in the conduct of its business. 11. The Court rejected this argument and held that it is for the courts to determine the scope of the legislature’s privilege. By enacting s.17(c) LCPPO as primary legislation, LegCo had deliberately conferred criminal jurisdiction on the courts. As to any concern of overlapping jurisdiction between LegCo and the courts, should LegCo commence internal disciplinary proceedings over a particular incident, it would be a factor for the Secretary for Justice to consider before consenting to any prosecution, as required under s.26 LCPPO. Disposition 12. The Court unanimously dismissed the appeal and held that the Appellant is not immune from prosecution for the alleged offence and that the courts are not precluded from exercising jurisdiction over the charge. 
1. The Appellant was caught hiding drugs in his underpants. He admitted to possession of the drugs in question (“Confession”) and was charged with trafficking in a dangerous drug, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance Cap 134. 2. At trial, the Appellant’s defence was that the Confession was involuntary and thus inadmissible. He claimed that the Confession was induced by certain promises made to him by one of the arresting police officers (“PW2”). 3. A hearing known as a “voir dire” was held to determine the admissibility of the Confession. However, when PW2 was about to give evidence one afternoon, the Appellant fell ill. The Appellant’s barrister applied to adjourn the hearing to the next morning while the Appellant sought a doctor, but the Judge refused. The Judge concluded that the Appellant had a choice to stay or leave and would not be prejudiced by being absent because his barrister had full instructions. The Appellant was therefore absent for the whole of PW2’s evidence at the voir dire. The Confession was held admissible and the Appellant was convicted. 4. The Court of Appeal (“CA”) dismissed the Appellant’s application for leave to appeal against conviction on grounds unrelated to the present appeal but in an Addendum to its judgment, noted the Appellant’s absence from part of the hearing due to illness. 5. On appeal before the Court of Final Appeal, the Appellant argued that a substantial and grave injustice had been done because the Judge’s refusal to adjourn the hearing and decision to continue in his absence deprived him of a fair trial. 6. The Court held that the right of an accused to be present at his trial, which includes a voir dire hearing, provided for by Article 11(2)(d) of the Bill of Rights, is part of the broader right to a fair trial. However, that right is not absolute. The trial judge has a discretion to continue the trial in the accused’s absence in exceptional and appropriate circumstances. A proper exercise of the discretion would require the trial judge to proceed with utmost care and caution, and to consider all factors relevant to ensuring a fair trial including, without limitation, whether the accused’s absence was voluntary or involuntary, the risk of prejudice to his defence, and the length of the required adjournment. 7. The Court held that the Judge should have exercised her discretion with greater care and consideration. In the present case where a brief adjournment is weighed against the Appellant’s important right to be present at all stages of his trial, an adjournment would have been the better course. 8. Nevertheless, the Court held that the trial must be viewed as a whole in determining whether the Appellant, in all the circumstances, had a fair trial. It concluded that the Appellant’s short absence neither prejudiced his defence nor rendered his whole trial unfair, and was in fact counterbalanced by other safeguards he enjoyed in his trial. Accordingly, no substantial and grave injustice had been done to the Appellant. DISPOSITION: 9. The Court unanimously dismissed the appeal. 
1. On 10 April 2011, a prize ceremony of a MTR charity race walking event was held on a stage in Statue Square, Chater Road, Central. A number of demonstrators were present, protesting about MTR fare increases. While the Secretary for Transport and Housing, Madam Eva Cheng (the “Secretary”), was delivering a speech, Mr Chow (a demonstrator) rushed on to the stage and scattered “hell money”. After Mr Chow had been taken away from the stage, Mr Wong rushed on to the stage and snatched away the microphone, which was being used by the Secretary. 2. Mr Chow and Mr Wong were charged with the offence of behaving in a disorderly manner in a public place with intent to provoke a breach of the peace or whereby a breach of the peace was likely to be caused, contrary to section 17B(2) of the Public Order Ordinance. They were also charged alternatively with the offence of acting in a disorderly manner for the purpose of preventing transaction of the business of a public gathering, contrary to section 17B(1). They were found guilty under section 17B(2) after trial by the magistrate and were sentenced to 14 days’ imprisonment. The Court of First Instance quashed their convictions under section 17B(2) but found them guilty under section 17B(1). The sentences of 14 days’ imprisonment were substituted by a fine of HK$2,000 for Mr Chow and a fine of HK$3,000 for Mr Wong. Mr Chow and Mr Wong sought to overturn their convictions. The HKSAR sought the restoration of their earlier convictions. 3. All the judges of the Court of Final Appeal considered the conduct of Mr Chow and Mr Wong unacceptable as a form of demonstration that is constitutionally protected. Both could have been charged with common assault and could have been bound over by a magistrate to keep the peace in the future. But they were not dealt with in that way and the Court had to consider whether the offences charged had been established. 4. Four of the members of the Court held that “disorderly” was an ordinary word and that whether behaviour was “disorderly” in any particular case was a question of fact that should be left to the trial court. The Courts below were clearly entitled to find that both Mr Chow and Mr Wong had acted in a disorderly manner. Tang PJ adopted a different view of “disorderly” conduct, holding that conduct could be properly regarded as disorderly only when it went well beyond what any citizen would have to tolerate. In Tang PJ’s view, although Mr Chow’s conduct could amount to disorderly conduct, it was unsafe to treat the findings made by the magistrate as a sufficient finding of disorderly conduct on the part of Mr Chow. 5. The gathering in the present case was interrupted for only around one minute. The evidence did not show an intention to “prevent” the prize ceremony taking place. Therefore, the Court unanimously allowed Mr Chow’s and Mr Wong’s appeals in relation to section 17B(1). 6. An offence under section 17B(2) requires the intended provocation or a likelihood of a breach of the peace by some other person. On the facts, it had not been shown that anybody was likely to breach the peace as a result of Mr Chow’s or Mr Wong’s conduct. Therefore, the Court unanimously dismissed the HKSAR’s cross appeal. 
The appellants were police officers. The 1st appellant was a prosecution witness in a criminal trial in 2007 (the “earlier proceeding”); the 2nd appellant was an exhibits officer in the same trial. During that proceeding, a defence lawyer produced a tape which recorded a discussion between two persons concerning the giving of false evidence. The present proceedings were brought against the appellants, it being alleged that they were the two persons having the recorded discussion. They were subsequently convicted by the District Court of “doing acts tending and intended to pervert the course of public justice” and “misconduct in public office”. Their convictions were upheld by the Court of Appeal. There was no evidence against the appellants of where, when and by whom the recording was made and they argued that evidence of their identity was insufficient. In concluding that the recorded voices were those of the appellants, the District Court Judge took into account both direct and circumstantial evidence, including (1) evidence from a Mr. Lau that he recognized their voices, having had many opportunities to hear them speak; (2) references to certain events on the tape; and (3) evidence as to the actual occurrence of and the appellants’ involvement in the events so referred to. The Court of Final Appeal was of the view that the combination of Mr. Lau’s evidence of identification with the abovementioned circumstantial evidence justified the lower courts in sustaining the appellants’ conviction, having duly noted the dangers of misidentification of voices.