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Citation
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Judgment date
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| December 2009 |
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Unsuccessful recusal applicants ordered to pay the Official Liquidator’s costs for the recusal proceedings.
Civil procedure — Costs in recusal applications — Unsuccessful applicants ordered to pay costs to participating Official Liquidator — Counsel’s dual duty to client and court — Participation by non‑party can justify costs award.
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22 December 2009 |
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Plea equivocal where accused charged under section limited to domestic supply; conviction quashed and substituted for simple possession, sentence confirmed.
Criminal law – Drug offences – Territorial scope of offence – Presumption against extra‑territoriality restricts section 6(3) to intended supply within the jurisdiction. Plea law – Guilty plea equivocal where accused pleads to an offence not committed in law. Statutory construction – Control of Drugs (Trafficking) Ordinance does not expand substantive offence extraterritorially. Sentencing – Possession in circumstances showing intent to supply abroad may justify custodial sentence comparable to possession with intent.
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3 December 2009 |
| November 2009 |
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Court refused to admit untested written statement and denied adjournment to protect the accused’s fair‑trial rights.
Evidence Ordinance s6 — admissibility of written statements; requirement to serve copy and allow seven‑day objection unless parties agree; court retains discretion to exclude even compliant statements. Criminal Procedure Ordinance s28 — depositions must meet Part IV requirements; Part IVA/section 48B/48F statements do not automatically qualify as depositions for trial. Fair trial (Article 6) — balance probative value against prejudicial effect of untested hearsay. Adjournment — s28(2) discretionary; refusal appropriate where prosecution failed to take timely steps and adjournment prejudices the defence.
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26 November 2009 |
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Convictions for joint wounding upheld; sentencing of a younger appellant adjourned for mitigation due to lack of recorded consideration.
Criminal law – wounding; Appeal procedure – amended grounds filed without leave; Magistrates’ duties – advising accused of rights to silence, to give evidence, to address court, and to call witnesses; Magistrates’ Court Ordinance s.58 and s.59(1) – scope of duty to enquire about absent witnesses; Self-defence – requirement to consider; Appeal standard – deference to trial findings of fact and credibility; Sentencing – mitigation, youth, first offender considerations; adjournment for re-sentencing.
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24 November 2009 |
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Leave to continue a derivative action refused where quasi‑partnership liquidation is an appropriate alternative and no prima facie case was shown.
Company law – derivative actions – leave under Order 15 Rule 12A – requirement to show a prima facie case and fall within exceptions to Foss v Harbottle. Quasi‑partnerships and deadlock – availability of winding‑up as alternative remedy and its weight in derivative action applications. Evidence and disclosure – necessity of full, frank and consistent evidence to establish equitable fraud or undervalue sale. Costs and indemnity – Wallersteiner indemnity not considered where leave to continue is refused.
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20 November 2009 |
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Conviction quashed where magistrate’s adverse credibility findings were unsupported by evidence; retrial ordered.
Criminal law – appeal against conviction – appellate interference with trial court’s credibility findings – requirement for adequate reasoning where trial judge rejects or impugns witness credibility; reliance on contemporaneous statements; safety of conviction.
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11 November 2009 |
| October 2009 |
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Court lacked jurisdiction to order security for arbitration costs absent an express statutory or contractual grant.
Arbitration — Security for costs — Jurisdiction of Court — Arbitration Ordinance 1974 — Absence of statutory enabling provision — Choice‑of‑law clause not a grant of jurisdiction — Originating summons dismissed.
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26 October 2009 |
| September 2009 |
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Interlocutory challenge to winding‑up petition: affidavits (including expert reports) admissible; cross‑examination of deponent refused.
Company law – winding‑up petition – interlocutory injunction to restrain presentation – interlocutory proceedings permit affidavit (hearsay) evidence; Expert evidence – admissibility of expert affidavits under Order 38 r.36(2); Prior employment of expert affects weight not automatic inadmissibility; Cross‑examination – court ordinarily will not order attendance for cross‑examination in disputed‑debt interlocutory applications absent necessity.
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23 September 2009 |
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Appellant’s lack of counsel and psychiatric history did not render trial unfair; sentencing adjourned to permit rehabilitative treatment arrangements.
Criminal law – Appeal against conviction – Fair trial – Unrepresented defendant with psychiatric history – Whether trial unfair; Evidence – Credibility findings – Magistrate’s assessment of alibi and intoxicated witness upheld; Sentencing – Consideration of psychiatric illness and alcohol dependence – Rehabilitation v imprisonment; Procedure – Adjournment and conditional suspension to permit overseas treatment arrangements.
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21 September 2009 |
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An Erinford injunction restrained winding-up steps pending appeal, subject to an undertaking but without fortification.
Injunction pending appeal (Erinford injunction) – preservation of status quo to prevent appeal becoming nugatory – balancing convenience and potential irreparable harm in winding-up context – solvency evidence – cross-undertaking and fortification (refusal to order security absent sufficient risk of uncompensable loss).
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18 September 2009 |
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Summary judgment refused over disputed casino marker signatures; judgment entered for undisputed $60,000 and unconditional leave to defend granted.
Civil procedure – Order 14 summary judgment – genuineness of document signatures and procedural discrepancies can create triable issues of fact; partial judgment allowed for undisputed items; unconditional leave to defend where restraint order makes conditional terms impossible.
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14 September 2009 |
| July 2009 |
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Failure to ask an unrepresented accused about absent defence witnesses rendered his conviction unsafe and was quashed.
Criminal procedure – unrepresented accused – duty of magistrate under s.59(1) to ask if absent defence witnesses should be summoned – failure may render conviction unsafe. Evidence – non‑production of exhibit (knife) – appellate deference to trial magistrate’s factual findings where supporting evidence exists. Evidence – uncautioned verbal admissions – admissibility concerns but conviction may stand if other evidence proves guilt. Judicial conduct – trial judge questioning – permitted for clarification but must not assist prosecution; no bias found.
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22 July 2009 |
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Summary judgment refused where disputed facts about authority and contract existence required trial; unconditional leave to defend granted.
Order 14/14A – Summary judgment – where substantial disputed facts (authority to bind, receipt of funds) exist summary judgment inappropriate; non est factum/authority issues; trustee and negligence claims require trial; court may decide clear points of law summarily but should not determine disputed factual matrix on affidavit.
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22 July 2009 |
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Applicants may not be arraigned on a fresh indictment more than two months after a retrial order without Court of Appeal leave.
Constitutional right to a trial within a reasonable time; retrial procedure after Court of Appeal quashing convictions; application by analogy of English Court of Appeal Act 1968 section 8(1); requirement of Court of Appeal leave where indictment preferred more than two months after order for retrial; remedies for prosecutorial delay.
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17 July 2009 |
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6 July 2009 |
| June 2009 |
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Applicant's out‑of‑time appeal over remand-credit refused because the sentencing judge had already allowed remand credit.
Criminal procedure – application for leave to appeal out of time – remand-time credit – sentencing calculation and remission (one-third) – court must check record to determine whether remand credit was applied.
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30 June 2009 |
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Court permits preliminary evaluative findings by a Commission, finds procedural shortcomings remedied, and refuses pre‑publication relief.
Commissions of Inquiry – scope of terms of reference – preliminary findings versus findings of guilt; natural justice and Salmon principles – notice, disclosure and opportunity to be heard; legitimate expectation; judicial review pre‑publication; power to identify third parties "in relation to" elected members.
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16 June 2009 |
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Court requires determinate sentence for juvenile detainee, balancing offence seriousness against rehabilitation, imposing 12 years concurrent.
Criminal law — Sentencing — Juvenile originally detained "during Her Majesty's pleasure" — Court must fix determinate sentence — Consideration of youth, prior good character and prison conduct as mitigation — Murder sentence to be substantially greater than attempted murder — Concurrent sentencing and backdating to original sentencing date.
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3 June 2009 |
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Confidential documents need only be disclosed where necessary for the fair disposal of proceedings; limited parts were ordered produced.
Order 24 r.10–12; inspection and production of documents in winding‑up related proceedings — confidentiality v necessity for fair disposal — limited disclosure and redaction permissible; Court may inspect in camera.
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1 June 2009 |
| May 2009 |
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Court granted extension to apply for leave to continue derivative action despite procedural delay, reserving costs.
Civil procedure – extension of time under Order 3 r.5 – application of Costellow, Mortgage Corporation and Finnegan guidance; Derivative actions – requirement to apply for leave under Order 15 r.12A(2); Delay and prejudice – delay not fatal absent irremediable prejudice; Permissible use of late/unsworn affidavits in exceptional circumstances.
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26 May 2009 |
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Foreign residence alone does not justify security for costs; applicants must show enforcement obstacles or disproportional burden.
Civil procedure – Security for costs – Order 23 r.1 – Foreign plaintiffs – Modern approach (Nasser/Plaskett/Elliott) – foreign residence alone not determinative – applicant must show obstacles to or substantial burden of enforcement in plaintiff’s jurisdiction – court discretion to be exercised to avoid discriminatory restriction on access to courts.
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1 May 2009 |
| April 2009 |
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A stay was properly refused where overlapping claims involved different parties and the Magistrate reasonably balanced duplication risk against respondent prejudice.
Stay of proceedings — concurrent proceedings in different courts — abuse of process and multiplicity — requirement of substantial duplication and party identity — discretion to stay balanced against prejudice, delay and costs; removal/mis-joinder of party — employer’s vicarious liability does not automatically justify striking employee from proceedings.
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23 April 2009 |
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Mareva injunction discharged for material non-disclosure in ex parte application; receiver revoked and documents returned.
Mareva injunction — ex parte applications — duty of full and frank disclosure — material non-disclosure where affidavits rely on unverified or undisclosed sources — publication of ex parte order prejudicing defendants — revocation of receiver and return of documents.
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20 April 2009 |
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Defendant convicted of wounding seeks suspended/non‑custodial sentence based on character, circumstances, and prison overcrowding.
Sentencing — wounding with intent — mitigation: right to trial, prior good character, family responsibilities, victim aggression, prison overcrowding and remand time.
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9 April 2009 |
| March 2009 |
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Civil Procedure
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25 March 2009 |
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Court confined ancillary relief to statutory financial orders (lump sum/maintenance); no general power to order sale or redistribute property.
Divorce — Ancillary relief — Scope of powers under Divorce Law Ordinance — Section 30: lump sums and maintenance orders; no general power to order sale/distribution of property — Section 4 does not import broader Chancery jurisdiction — Procedural requirements: Form 16 and Form E disclosure; waiver of rule 45(2) affidavit.
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23 March 2009 |
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A McKenzie friend may assist only an unrepresented litigant; an instructed lawyer cannot sit alongside retained counsel.
Civil procedure – right to assistance by a McKenzie friend – limited to unrepresented litigants; instructed counsel may not act as McKenzie friend. Administrative law – immigration department’s unexplained refusal of temporary work permit may deprive litigant of chosen counsel. Precedent – McKenzie v McKenzie and Collier v Hicks concern litigants in person; limited authority for a lawyer acting as McKenzie friend where client is represented.
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11 March 2009 |
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The applicants' challenge to the fuel-cost power adjustment fails; the Governor lawfully prescribed it in the tariff regulations.
Electricity law – statutory interpretation of section 32(5) – meaning of 'by order' – regulations as functional equivalent of Governor's order; Tariff of Rates – inclusion of Power Cost Adjustment in Schedule validly prescribed under section 32(1); Variation of tariff – monthly PCA adjustments are charges under an existing tariff, not prohibited variations under section 33(2).
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3 March 2009 |
| February 2009 |
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Default judgment set aside and Mareva freezing order discharged for lack of solid evidence of risk of dissipation.
Civil procedure – Order 19 r.9 – setting aside default judgment – requirement of a bona fide arguable defence with a real prospect of success; Mareva injunction – ex parte applications – duty of full and frank disclosure; urgency and notice; exceptional nature of freezing orders; Commercial law – disputed identity of contracting party (director v company / undisclosed principal) — merits to be determined at trial; Principles for granting Mareva relief – good arguable case for an ascertainable sum and solid evidence of real risk of dissipation (business insolvency or proposed sale not alone sufficient).
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16 February 2009 |
| January 2009 |
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Court stayed local declarations on mortgage possession due to parties’ contractual choice of Florida law and forum.
Forum non conveniens — contractual jurisdiction clause — Article VI selecting Southern District of Florida and US maritime law — stay of local proceedings as Florida is the natural forum to decide validity, interpretation and operation of mortgage; ex parte injunction disclosure obligations and defective pleadings; Article II(C) right to retake vessel without legal process.
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15 January 2009 |
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Court refused the respondent's application to discharge the restraint order, but varied the non‑disclosure order.
Proceeds of Crime Ordinance – restraint orders – s.44(3)(c) discharge for unreasonable delay; non‑disclosure (gag) orders – balancing investigatory efficacy and respondents’ rights; limited variation of gag order to permit witness disclosure and public statement of restrained business account balances; disclosure as precondition to release for living/legal expenses.
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11 January 2009 |
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A non-intended beneficiary cannot sue solicitors for negligent will-drafting; claim struck out for disclosing no cause of action.
Probate/solicitor liability – duty of care to intended beneficiaries; standing of non-intended beneficiaries to sue for negligent will-drafting; strike-out for disclosing no reasonable cause of action; timing/estoppel of strike-out applications.
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5 January 2009 |