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Citation
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Judgment date
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| November 2018 |
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Counsel’s failure to consult on alibi witnesses and to secure a good character direction rendered the trial unfair; conviction quashed.
Criminal appeal — right to a fair trial — defence counsel’s duty to consult accused before declining to call alibi witnesses — duty to take instructions about previous/spent convictions and to seek a good character direction — failure may render conviction unsafe — retrial ordered.
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21 November 2018 |
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Circumstantial evidence and equivocal statements were insufficient to prove the applicant’s possession or keeping; convictions quashed.
Criminal law – Circumstantial evidence – possession of controlled drug – elements of possession (custody/control and knowledge) – necessity to exclude reasonable hypotheses inconsistent with guilt.* Criminal law – Firearms Ordinance – occupier presumed keeper – limits of inference where multiple adult occupants have access.* Evidence – Equivocal extra-judicial utterances – caution in leaving meaning to jury – equivocal statements may carry no weight as admissions.* Evidence – Hearsay – third party statements recounted by police – inadmissible if relied on testimonialy.* Criminal procedure – Jury directions – requirement to direct acquittal if reasonable doubt remains; appellate intervention where verdict unreasonable.
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21 November 2018 |
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Defective jury summation deprived the appellant of a fair trial; conviction quashed and no retrial ordered.
Criminal law – jury summation – necessity of judge’s directions on burden, standard of proof, legal definition of rape and reasonable belief in consent – appellate review under constitutional fair trial and record rights (s6(1), s6(3), s6(12)) – defective record renders conviction unsafe – remedy: quash conviction, no retrial due to delay.
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2 November 2018 |
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1 November 2018 |
| August 2018 |
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31 August 2018 |
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A charging order under s39(3) attaches only to legal estates or bare trusts, not equitable proceeds from constructive trusts.
Charging orders – section 39(3) Civil Procedure Ordinance – scope limited to legal estates and bare trusts; Common-intention/constructive trusts – equitable interest normally limited to proceeds of sale; Verification required before converting charging order nisi to absolute where third-party legal title affected; Charging order cannot attach to Crown’s title when Crown is not judgment debtor.
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31 August 2018 |
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Single-particle GSR admissible but of no standalone evidential value; applicant’s conviction and sentence affirmed.
Criminal law – evidential and admissibility issues – gunshot residue (GSR) – single particle and low-level findings; secondary transfer and limited probative value; jury directions and weight of forensic evidence; shoeprint comparison evidence; proviso/safety of conviction.
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31 August 2018 |
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Whether the respondent held a 'hotel licence' under the Business Licensing Ordinance for preferential electricity rates.
Statutory interpretation — meaning of "hotel licence" in subordinate regulations; interaction of Liquor Licensing Ordinance, Business Licensing Ordinance and Tourist Accommodation (Licensing) Ordinance; judicial research and procedural fairness; costs discretion (standard vs indemnity).
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31 August 2018 |
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Conviction for carrying a firearm upheld; incomplete weapon can be a 'firearm' and mandatory sentence of seven years imposed.
Firearms — statutory definition — component parts and deactivated weapons; Criminal procedure — jury directions on firearm definition, good character (credibility and propensity limbs), and burden of proof; Right to silence — no duty on accused to call expert evidence; Sentencing — mandatory minimums, unlawful suspension corrected.
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31 August 2018 |
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Appellant’s false imprisonment conviction quashed for misdirection and failure to put defence that complainant could leave.
Criminal law – False imprisonment – Essential element of total restraint – Trial judge’s duty to put defence to jury where complainant admits ability to leave; Misdirection by conflating offences; Improper reliance on police opinion and size of response; Conviction quashed as unsafe. Sentencing – Burglary sentence reduced from five to four years; credit for time served.
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31 August 2018 |
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An appellate court may amend a defective information to correct statutory references if no prejudice to the accused.
Immigration law — unlawful entry — offence created by section 79(1)(a) — Magistrate’s power to amend information (s161 Magistrate’s Court Act) — appellate power to exercise Magistrate’s powers (s186) — amendment of information on appeal where no prejudice — authority distinguished: R v Swansea; supported: Blackman.
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31 August 2018 |
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Appellant entitled to compensation for breach of legitimate expectation and property rights after government resiled from agreed park development.
National parks and planning law; legitimate expectation and property rights; ultra vires executive acts; entitlement to compensation for resiling from governmental representations; damages assessed by diminution in value; proportionality in constitutional property interference.
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31 August 2018 |
| April 2018 |
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Applicant’s prior threat and armed return supported finding he joined a spontaneous joint enterprise to intimidate the victim.
Criminal law – Joint enterprise – Spontaneous formation of joint enterprise – Sufficiency of evidence to establish secondary participation where appellant threatened to return and subsequently returned with an armed companion – Appellate review confined to whether Crown evidence was capable of supporting the conviction.
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25 April 2018 |
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Courts cannot suspend or reduce mandatory five-year firearms sentences; guilty-plea discounts cannot reduce the statutory minimum.
Criminal law – Sentencing – Firearms offences – Mandatory five-year minimum under Firearms Ordinance – Suspended Sentences Ordinance limited to sentences ≤2 years – No power to suspend or reduce statutory mandatory minimum – No guilty-plea discount below statutory minimum – Remand credit may be ordered.
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25 April 2018 |
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Court reduced sentence after trial judge attributed co‑accused’s prior convictions to the applicant.
Criminal law – Sentencing – Burglary in dwelling – aggravating factors (night-time offence, tourists, high-value property) – UK Sentencing Guidelines persuasive but not binding – error in conflating co-accused antecedents – manifestly excessive sentence – appellate substitution of sentence.
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25 April 2018 |
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25 April 2018 |
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Suspended Sentences Ordinance does not permit suspending or reducing statutory five-year mandatory firearms sentences.
Criminal law – Firearms offences – Mandatory minimum sentence of five years – Interaction with Suspended Sentences Ordinance (limited to sentences ≤2 years) – No discretion to suspend or reduce statutory mandatory minima – No guilty-plea discount below mandatory minimum – Remand credit may be applied.
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25 April 2018 |
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Appellate court reduced the applicant’s sentences, clarified sentencing methodology and affirmed a one-fifth guilty-plea discount.
Sentencing – armed robbery and discharge of firearm – necessity for courts to state starting point and articulate reasoning; UK and modeled Cayman guidelines are persuasive but not decisive; mitigation (remorse, cooperation, previous good character) must be properly weighted; guilty-plea discounts ordinarily apply (20% where plea not at earliest opportunity); being apprehended at scene does not extinguish guilty-plea credit.
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25 April 2018 |
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Leave to appeal to the Privy Council refused: dual criminality satisfied, double jeopardy and specialty rule posed no novel public-law issues.
Extradition law – leave to appeal to Privy Council – threshold of "great or general importance"; dual criminality – conduct test applies; double jeopardy – no bar where convictions in different jurisdictions against different victims; specialty rule – presumption that requesting state will observe treaty, no cogent evidence to rebut.
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25 April 2018 |
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Conviction for possessing a firearm with intent to put another in fear affirmed; trial directions and inference from circumstantial evidence upheld.
Criminal law – Firearms offence – Inference of a firearm from circumstantial and physical evidence; Identification directions – adequacy of summation in chaotic, multi‑shooter scene; Intent to put another in fear may be inferred from conduct and victims’ reactions; Jury’s fact‑finding respected on appeal.
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25 April 2018 |
| March 2018 |
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Majority verdict unsafe where statutory three‑hour deliberation and procedure for receiving verdicts were not observed.
Criminal procedure – jury majority verdict – section 36 Jury Ordinance requires at least three hours actual deliberation (excluding walking/administrative time) before accepting a majority verdict; departure from Practice Direction in taking verdicts constitutes material irregularity – retrial ordered.
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22 March 2018 |