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Citation
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Judgment date
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| 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 |
| December 2017 |
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Assigned counsel and refusal to adjourn did not render trial unfair; murder convictions affirmed, robbery convictions quashed as procedural nullity.
Criminal law – fair trial and right to counsel of choice – limits on adjournments; assigned counsel valid where defendant refuses available legal aid counsel; defence conduct – importance of written instructions and signed record when defendant elects not to testify; provocation/manslaughter only left to jury if supported by credible evidence; admissibility of caution statements decided at voir dire; procedural nullity where capital and non-capital offences tried together contrary to Jury Ordinance (different jury sizes) – robbery conviction quashed.
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1 December 2017 |
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Court reduced a manifestly excessive 10-year sentence for intentional grievous bodily harm to 8 years, criticizing use of unadopted UK guidelines.
Criminal law – Sentencing – grievous bodily harm with intent – appropriate starting point for sentence – manifest excess; use of foreign (UK) sentencing guidelines without formal adoption. Sentencing practice – need for uniform sentencing guidelines to be issued by Chief Justice after consultation. Consideration of previous convictions, aggravating factors (unprovoked knife attack), and mitigation (remorse, family responsibilities).
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1 December 2017 |
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1 December 2017 |
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1 December 2017 |
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1 December 2017 |
| November 2017 |
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A warrantless arrest is unlawful where the charged offence is time‑barred, invalidating consequent convictions.
Criminal law – Arrests – Warrantless arrest – Lawful only where there is a prosecutable offence; Summary Offences Ordinance s.30 (escape from lawful custody) – Magistrate’s Court Ordinance s.20(1) – six‑month limitation for summary complaints – Effect of time‑bar on lawfulness of arrest and validity of subsequent convictions.
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28 November 2017 |
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Appeal dismissed because claim for unpaid final wages was unpleaded, so Tribunal lacked jurisdiction to award section 19(3) relief.
Employment law – Unfair dismissal – Section 19(3) entitlement to statutory remuneration where employer fails to pay after termination; Pleading requirements – necessity to particularise claims in originating application; Jurisdiction – Tribunal cannot decide unpleaded claims; Compensation structure – Basic and compensatory awards do not include unpaid wages.
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22 November 2017 |
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Procedural irregularities did not deny natural justice where the employer had actual notice; appeal dismissed.
Labour law – unfair dismissal – service of process under Employment (Labour Tribunal Procedure) Rules – Rule 4, Rule 12, Rule 18 – actual notice and conciliation participation – procedural irregularity does not necessarily equal denial of natural justice.
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21 November 2017 |
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Appellant’s claim of mistake insufficient; valid marriage certificate and lack of corroboration justify dismissal of annulment petition.
Matrimonial Causes Ordinance s16(c) – annulment for lack of valid consent (mistake). Validity of marriage certificates and hallmarks of lawful ceremony. Evidential burden and need for corroboration (officiant/witness testimony). Procedural fairness – use of Attorney General's written opinion v. formal intervention. Appellate review – interference only for identifiable legal/factual error or perversity.
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20 November 2017 |
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Appellant's prior threat and return with an armed companion supported inference of joint enterprise; appeal dismissed, conviction affirmed.
Criminal law – Firearms/Imitation firearm – joint enterprise and secondary participation; sufficiency of evidence to infer joint enterprise from threats, return with armed companion, and conduct; spontaneous formation of joint enterprise; appellate review limited to sufficiency of factual evidence.
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16 November 2017 |
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Leave to appeal to the Privy Council refused; extradition questions not of sufficient general or public importance.
Extradition law – leave to appeal to Privy Council – threshold of "great or general importance"; conduct test for dual criminality; double jeopardy applicability across jurisdictions; specialty rule and presumption of treaty compliance.
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15 November 2017 |
| June 2017 |
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15 June 2017 |
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15 June 2017 |
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15 June 2017 |
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Labour and Employment Law
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15 June 2017 |
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Appeal against murder conviction and mandatory life sentence dismissed; trial judge’s summing-up and sentence upheld.
Criminal law – murder – intention to kill – drawing of inferences from conduct and words; jury directions on intention and burden of proof. Criminal law – self-defence and provocation – appropriate directions and effect of provocation reducing murder to manslaughter. Criminal procedure – alleged judicial bias – summing-up – fair-minded observer test. Sentencing – mandatory life imprisonment for murder – constitutionality – parole review and relevant precedent.
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9 June 2017 |
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The court reduced the applicant's 10‑year sentence to 8 years, finding the original term manifestly excessive and guideline use inappropriate.
Criminal law — Sentencing — grievous bodily harm with intent — knife attack causing serious internal injuries; prior convictions considered. Sentencing practice — use of United Kingdom sentencing guidelines by individual judges without official adoption is inappropriate; consistency in sentencing ranges requires Chief Justice guidance. Appeal — sentence found manifestly excessive and reduced from 10 to 8 years.
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6 June 2017 |
| April 2017 |
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Statutory Interpretation
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27 April 2017 |
| February 2017 |
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A secured creditor who has paid under a guarantee is entitled to leave to enforce its security outside the winding-up.
Companies Ordinance s.109/130 — leave required to sue a company in liquidation; secured creditors — right to enforce security outside winding-up; implied indemnity where surety pays under guarantee (Re a Debtor); appellate review of discretionary refusal where judge errs in principle; relevance of prior judgments and documentary evidence to determine secured status.
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23 February 2017 |
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A secured creditor (the applicant) entitled to leave to sue the company in liquidation to enforce its security.
Companies Ordinance s.109/130 – leave to commence proceedings against a company in liquidation; secured creditor’s right to enforce security outside winding-up; implied indemnity/debt where guarantor pays (Re a Debtor); In Re David Lloyd & Co; appellate review of discretionary refusal of leave.
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23 February 2017 |
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Court affirmed convictions where admissible DNA and fingerprint evidence supported identification and no trial unfairness occurred.
Criminal law – robbery – identification by DNA and fingerprints – admissibility and weight of expert evidence – trial continuance in accused’s absence – duty to direct on good character – refusal of state-funded witness where expertise not shown.
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21 February 2017 |
| September 2016 |
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Transfer dividing matrimonial assets was not a "conveyance on sale"; stamp duty recovery requires Collector's adjudication and proper standing.
Stamp Duty — conveyance on sale — meaning requires price in money paid or promised; voluntary disposition under s.23 requires Collector's adjudication that inadequate consideration confers substantial benefit; recovery of unpaid stamp duty vests in Collector — Attorney General lacks standing unless proceedings brought on Collector's behalf.
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20 September 2016 |
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Labour and Employment Law
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20 September 2016 |
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Amendments to an information to particularize uttering with intent to defraud and correct the complainant were lawful and caused no prejudice.
Criminal law – indictment amendments – court's power under s.20(1) CPO to amend defective information during trial – particulars of uttering must include intent to defraud – amendment allowed where no prejudice to accused and amendments merely align charges with evidence.
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6 September 2016 |
| May 2016 |
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Administrative Review
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13 May 2016 |
| February 2016 |
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The Transfer covenant is triggered when non-Belongers beneficially own or control more than 51% of the shares.
Contract/Property – Interpretation of transfer covenant – "Control" relates to ownership or control of shares, not merely management control; beneficial ownership by non-Belongers triggers repayment of discounted purchase sum; nominee directors’ status does not negate shareholder control.
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21 February 2016 |
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A planning decision changing policy was quashed for failing to carry out adequate, purpose‑related statutory consultation.
Planning law — Procedural fairness and statutory consultation — Duty to consult proportionately with affected persons when changing planning policy — Failure to carry out meaningful, purpose‑related consultation renders planning decision unlawful and liable to be quashed.
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8 February 2016 |
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A fiduciary who knowingly buys Crown land at an undervalue holds the value on constructive trust and must account proportionately.
Constructive trust; fiduciary duty and disclosure for Crown land sales; knowing receipt and tracing into substituted assets; applicability of Foskett v McKeown to land-related value; proprietary v personal remedies; account of profits and measure of liability (proportionate share of unimproved land, attributable improvements, and financing benefits).
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4 February 2016 |
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Property Law
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4 February 2016 |
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Labour and Employment Law
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4 February 2016 |
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Criminal law
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4 February 2016 |
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Criminal law
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4 February 2016 |
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A faxed notice did not meet statutory service requirements under the RLO; appeal dismissed as out of time.
Registered Land Ordinance – appeals – section 147 requires notice in prescribed form within 30 days; Service of notices – section 151 deeming provisions prescribe methods of service; facsimile not covered; Time limits – statutory appeal period is mandatory and not extendable by the Court; Electronic service – legislative change required to validate modern electronic methods.
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2 February 2016 |
| January 2016 |
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Trying capital and non-capital offences together before a twelve-member jury rendered the non-capital conviction null and the murder verdict unsafe.
Jury practice – statutory jury sizes – capital offences (murder) require twelve jurors, non-capital offences require seven; trying both together before twelve jurors unlawful; accomplice evidence – witnesses who pleaded guilty require directions to treat their evidence with great caution; unsafe convictions – quashing and ordering new trials.
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25 January 2016 |
| December 2015 |
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Consent to "minor" strata-plan amendments did not authorize converting common-property parking into a separately registered strata lot.
Strata titles — Amendment of registered strata plan — Construction of proprietor consent permitting "minor" changes — Whether consent allowed creation/registration of parking structure as new strata lot — Statutory controls on disposition of common property (s.22) — Application of contractual interpretation principles (Arnold v Britton).
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31 December 2015 |
| September 2015 |
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Minister's letter created a binding sale contract; respondent entitled to title on payment of the agreed price.
Contract – Ministerial letter constituting binding agreement for sale; Conditional Purchase Lease background; equitable interest and purchaser in possession; specific performance; time not of the essence; breach entitling to damages not forfeiture; refusal to transfer cannot be met by demanding later market valuation.
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18 September 2015 |
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Civil Procedure
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18 September 2015 |
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Civil Remedies
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18 September 2015 |
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An interlocutory recusal ruling in criminal proceedings does not attract an as‑of‑right constitutional appeal absent proper section 21 procedure and notice.
Constitutional law — section 21 constitutional redress — interlocutory recusal ruling in criminal proceedings — appeal as of right under section 21(4) — absence of rules under section 21(6) — Jaundoo principle that any practicable procedure may be used but must give notice to Attorney‑General — no appeal where no final determination under section 21 and proper notice absent.
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18 September 2015 |