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Citation
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Judgment date
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| November 2010 |
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Governor/PSC lawfully placed a senior officer on administrative leave pending investigation; not unlawful interdiction.
Public service law – administrative leave under General Order 8.1.11 – lawful to require senior officer to take/ remain on leave pending investigation; Interdiction under Regulation 34 requires disciplinary or criminal proceedings to have been or be about to be instituted; Procedural fairness requires adequate particulars and opportunity to respond once disciplinary proceedings are indicated; Ultra vires challenge to appeal regulation (Reg 41) not determined.
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19 November 2010 |
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Prior trial involvement does not automatically disqualify a judge from hearing bail pending appeal; case returned for hearing and legal aid ordered.
Criminal procedure – Bail pending appeal – Requirement to consider grounds of appeal and real possibility of success – Time likely to be served before appeal relevant to bail decision. Recusal – Prior role as trial judge not automatically disqualifying in bail applications, though genuine anxiety may justify adjournment. Legal aid – Prompt provision can be ordered to facilitate appellate representation; inability to fund overseas counsel while in custody may justify renewed bail application. Case management – Application returned to allocated judge to fix hearing date when initial listing fails.
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5 November 2010 |
| October 2010 |
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The court held that public‑interest regulatory breaches, liquidity and solvency risks justified winding up the Bank and confirming liquidators.
Company law – winding up on public interest/just and equitable grounds – regulatory breaches, inadequate capital and liquidity, weak credit administration and insolvency risk. Insolvency procedure – ex parte appointment of provisional liquidators justified to prevent run and protect public/depositor interests. Rescue proposals – failure to meet regulatory escrow/approval requirements and lack of substance do not justify further adjournment. Remedy – compulsory winding up and confirmation of provisional liquidators as liquidators.
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29 October 2010 |
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Court admitted absent complainant’s and officer’s written statements under Evidence Ordinance after finding no unfairness.
Evidence Ordinance 2001 – admissibility of written statements; sections 6 and 8 – witnesses outside jurisdiction/untraceable; section 10 – court’s discretion to exclude in interests of justice; considerations: authenticity, availability, relevance and risk of unfairness; identification and consent issues in sexual offences; jury directions where written statements admitted.
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12 October 2010 |
| September 2010 |
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The applicant was granted leave to amend to add quantum meruit and a resulting‑trust claim as being fairly arguable despite delay.
Civil procedure – Amendment of pleadings – Order 20 and Order 15 – Leave to amend to add quantum meruit and resulting trust claims – Test whether amendment is "fairly arguable" and not futile, frivolous or in bad faith – Delay and non‑compliance with directions not fatal where prejudice can be remedied by costs.
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23 September 2010 |
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Court suspended a 14‑month sentence for cannabis supply due to exceptional delay and demonstrable post-conviction rehabilitation.
Sentencing — Possession with intent to supply cannabis — Significant quantity — Application of R v Freitas guidelines — Immediate custody normally required for drug supply offences — Suspension of sentence only in exceptional circumstances — Delay in appeal and post-conviction good conduct may justify suspension.
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2 September 2010 |
| August 2010 |
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Appellants' convictions upheld but excessive fines replaced by imprisonment after appellate correction of flawed sentencing.
Fisheries law – possession and taking of marine products – regulation 34 deemed possession; limits of deeming provisions as to knowledge. Statutory interpretation – whether offences under regs 4 and 5 are absolute; regulation 12 likely absolute. Criminal procedure – validity/unequivocality of guilty pleas obtained amid an apparent arrangement between detainees and prosecution. Sentencing – improper use of excessive fines to achieve default imprisonment; default terms cannot be made concurrent; sentencing discretion corrected on appeal.
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10 August 2010 |
| July 2010 |
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Failure to hold an identification parade and inadequate judicial warnings made dock identifications unsafe, so conviction was quashed.
Criminal law – Identification evidence – Dock identification without prior identification parade – Necessity for parade where complainant gave no name/adequate description – Duty to give specific warnings about dangers of dock identification and potential advantage of an inconclusive parade – Failure may render conviction unsafe.
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29 July 2010 |
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Allegations that defendants procured breach by diverting sale proceeds were sufficiently pleaded; strike-out application dismissed.
Civil procedure – strike out under Order 18 r 19 – no reasonable cause of action; Tort – inducing breach of contract – elements: knowledge, intention to procure (targeting/aimed at), breach and damage; Pleading sufficiency – need for particulars but triable issue where facts permit inference of intent; Disposal of assets/sale proceeds alleged to procure breach; Abuse of process considerations.
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6 July 2010 |
| May 2010 |
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Leave for judicial review of a committal was refused; committal proper and fitness-to-plead issues belong to trial court.
Criminal procedure – committal hearings – preliminary inquiry not a trial – ss.16 and 50 Criminal Procedure Ordinance inapplicable at committal stage. Fitness to plead/insanity – psychiatric evidence before magistrate does not automatically invalidate committal; trial court to decide plea/insanity at or before arraignment. Judicial review – leave refused where proper remedy is determination at trial stage; application must properly plead and support constitutional claims.
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10 May 2010 |
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The court struck out the plaintiff’s action for lack of standing and awarded costs to all defendants.
Civil procedure – striking out – lack of standing to sue alone where plaintiff is not sole owner/shareholder – abuse of court process. Civil procedure – pleadings – no cause of action as separate basis for strike out against some defendants. Costs – where strike out disposes of whole action, defendants entitled to costs including where success was on the standing ground. Correction of court’s costs order where original wording was inconsistent with findings.
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4 May 2010 |
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An out‑of‑time judicial review seeking an oral preliminary inquiry was refused due to inordinate delay, unpaid fees, and abuse of process.
Judicial review — leave to apply — time limit — Order 53 r 4(1) — promptness and three‑month rule Filing requirements — payment of filing fee as condition to proper filing Abuse of process — inordinate delay and lack of diligence Prejudice — potential prejudice to prosecution (witness memory) from delay Committal challenges — sufficiency of evidence at committal may be addressed at trial
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4 May 2010 |
| April 2010 |
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Non-joinder of jointly entitled parties and failure to plead causes of action led to striking claims against finance and corporate-service defendants.
Civil procedure – strike out under Order 18 r.19(1): failure to disclose reasonable cause of action; abuse of process by non-joinder of persons jointly entitled; contractual/ fiduciary claims require particularisation; acts of a partner may bind the firm.
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28 April 2010 |
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Court balanced open justice and confidentiality, granting creditor inspection rights while redacting depositor account details.
Insolvency — open justice v confidentiality — application of English Insolvency Rules (Rule 7.31) where local rules absent — restoration of creditors’ right to inspect court file; ex parte provisional liquidator appointments justified by public‑interest and run‑risk; limited redaction of depositor details; Governor granted special leave to receive petition.
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28 April 2010 |
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A winding-up petition dismissed because the alleged debt was genuinely disputed on substantial grounds and petitioner lacked standing.
Company law – Winding-up – creditor’s standing – debt disputed on substantial grounds defeats petition. Company law – Winding-up – provisional liquidator – cannot be appointed absent good prima facie case that winding-up order will be made. Procedure – disputed valuation/facts on affidavit – such disputes should ordinarily be tried in ordinary civil proceedings; cross-examination rarely ordered. Petitioners – contingent/prospective creditors do not have statutory standing to present winding-up petitions under the Ordinance.
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21 April 2010 |
| March 2010 |
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Court holds Section 30 permits secured maintenance, not outright lump-sum awards, and ancillary relief cannot decide proprietary claims.
Divorce Ordinance s.30 — secured gross or annual sums refer to secured maintenance, not outright lump-sum capital awards; ancillary relief cannot determine proprietary or constructive trust claims over property registered solely in the other spouse; court invited further submissions on whether "security" may be charged against property; procedural treatment of late affidavits.
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30 March 2010 |
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An appeal by case stated under the Registered Land Ordinance is properly constituted without filing a separate court notice of appeal.
Registered Land Ordinance – appeals by case stated – statutory procedure under sections 146–148; Civil procedure – whether English rules or Order 55/Order 93 apply by virtue of Supreme Court Act s.3; Procedural requirements – notice to Registrar vs. separate Notice of Appeal in Court; Validity of appeal – when an appeal by case stated is properly constituted.
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19 March 2010 |
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Appeal under Employment Ordinance confined to questions of law; arbitrary summary dismissals were unreasonable and unfair.
Employment law – unfair dismissal – section 35 "some other substantial reason" – reasonableness of employer’s response; appeal under Employment Ordinance limited to questions of law; appellate standard of review for factual findings (O’Kelly principle).
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15 March 2010 |
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Court refused prosecution’s late, unsupported application to vacate a trial fixture and ordered an immediate decision to proceed or offer no evidence.
Criminal procedure – trial fixtures – application to break fixture – late notice and inadequate evidence – prosecutorial duty to give timely, documented reasons; court’s case management to prevent unnecessary jury attendance and protect courtroom time.
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11 March 2010 |
| February 2010 |
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Blood sample taken in custody without statutorily required court order and notifications excluded as improperly obtained.
Criminal procedure – intimate samples (blood) – statutory regime under Police Force Ordinance s.37B – court order, written consent, notification and recording requirements. Evidence – admissibility – discretion to exclude self‑incriminatory material improperly obtained from accused (R v Sang exception) – fairness and right against self‑incrimination. Police procedure – failure to follow mandatory safeguards renders consent unfair and evidence inadmissible.
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9 February 2010 |
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Interim injunction restraining mortgagee auctions refused where damages adequate and applicant failed to make full and frank disclosure.
Interlocutory injunctions – American Cyanamid principles – adequacy of damages as remedy – urgency applications requiring full and frank disclosure – adequacy of undertaking in damages – mortgagee auctions and enforcement.
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1 February 2010 |
| January 2010 |
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Non-compliance with court timetable justified costs and time extension but not strike-out absent contumelious delay.
Civil procedure — Appeals from Magistrate’s Court — Inherent jurisdiction of Supreme Court to manage appeals and prevent abuse of process — Strike out for contumelious or inexcusable delay — Requirements for summary dismissal — Costs consequences for non-compliance with court timetable; application of s.172 cap to lump-sum daily awards.
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29 January 2010 |
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Court continued worldwide freezing order, took account, found US$85,037,331.63 due, struck out defendants’ counterclaim, ordered payment and costs.
Civil procedure – Mareva (freezing) injunction – continuation of ex parte freezing order – real risk of dissipation; Contract and remedies – guarantor liability – account as equitable remedy to ascertain debt; Contract interpretation – effectiveness of express "no set‑off/counterclaim" clauses; Striking out – counterclaim and defence struck out as disclosing no reasonable cause of action and abuse of process; Evidence – admission of receiver’s late affidavit and parties afforded opportunity to respond.
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28 January 2010 |
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Application to appoint arbitrator refused where insured accepted payment as full and final settlement.
Insurance law – settlement acceptance – signed proforma constituting full and final settlement; Arbitration – applicability where payment accepted; Procedural – insufficiency of affidavits; Arbitration Ordinance s.6(1)(a).
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18 January 2010 |
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A protection order may only be continued if objectively necessary, not merely because it is 'prudent'.
Domestic Proceedings Ordinance s17(2) – protection / non‑molestation orders – continuation requires objective necessity not mere prudence – power of arrest requires specific reasons and duration – relevance of passage of time and absence of breaches – rehearing on record.
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5 January 2010 |