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Citation
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Judgment date
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| December 2011 |
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Applicant's conviction and sentence for procuring a valuable security by deception upheld.
* Criminal law – procuring execution of a valuable security by deception – whether transfer document constituted deception given evidential context; credibility of witnesses and weight of evidence; necessity of proving lender's reliance on security. * Evidentiary principles – assessment of witness testimony and inferences from documents created by accused. * Sentencing – proportionality and manifest excessiveness.
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12 December 2011 |
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Civil Remedies
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12 December 2011 |
| November 2011 |
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Applicant ordered to pay respondent’s costs from 14 June 2011 after an unaccepted settlement offer; costs to be taxed if not agreed.
* Civil procedure — costs — dismissal of both claim and counterclaim — usual order upheld until relevant settlement offer date.
* Costs — effect of late-amended counterclaim and backdating — amendment date does not automatically shift costs.
* Offers to settle — unaccepted offer dated 22 May 2011 — calculation of acceptance period (Sunday effect) and entitlement to costs from expiry of acceptance period (21 days).
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24 November 2011 |
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Defendant vicariously liable for a staff-caused spillage slip; plaintiff not contributorily negligent; damages to be assessed.
Occupier/employer duty of care – slip from staff-caused spillage at kitchen exit; vicarious liability for unidentified employee; foreseeability of spillages in high-traffic confined areas; evidential burden on defendant to prove accident would have occurred irrespective of system failings; contributory negligence and failure to warn; absence of investigation and risk assessment material to liability.
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1 November 2011 |
| October 2011 |
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A magistrate lacks discretion to refuse the applicant's change from summary to Supreme Court trial under section 34(1).
Criminal procedure — change of election from summary trial to Supreme Court trial — construction and effect of section 34(1) (Magistrate's Court Ordinance, amended) — magistrate's discretion; forum shopping; requirement to adjourn to sufficiency hearing; duty to ensure informed election.
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25 October 2011 |
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Leave to appeal out of time granted only to determine quantification of rents and profits from disputed properties.
Civil procedure – extension of time for appeal – discretion to extend time – factors: promptness, reasons for delay, prospects of success and prejudice – findings of fact and credibility on appeal – proprietary interests in land – quantification/accounting of rents and profits.
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7 October 2011 |
| August 2011 |
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Claims to beneficial interests by constructive trust dismissed for lack of proven common intention and insufficient evidence of joint funding.
* Property law – Constructive trust – Common intention constructive trust requires express agreement or conduct showing common intention plus detrimental reliance.
* Presumption – Registered proprietor presumed beneficial owner; burden on claimant to displace that presumption.
* Evidence – Direct financial contributions and reliable accounts are central; vague or aggregated partnership records insufficient.
* Credibility – Court preferred defendant’s evidence; inconsistent and exaggerated witness evidence undermines claims.
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11 August 2011 |
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Court granted adjournment but emphasised strict statutory time limits and limited exceptions for sufficiency hearings.
Criminal procedure – Sufficiency hearing regime – adjournment applications (s2B(1)) – timing of applications and service; prosecution’s duty to serve statements seven days before sufficiency hearing (s2B(4)); court’s duty to list and hear adjournment applications even if unopposed; limits on evidence at sufficiency hearing; consequences of non‑compliance (possible discharge).
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8 August 2011 |
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Respondent convicted of sex with a 13-year-old sentenced to four years; guilty plea and mitigation reduced the term.
* Criminal law – Sexual offences – Unlawful sexual intercourse with a girl under 16 – Sentencing principles following increase of statutory maximum to 14 years; mitigation for guilty plea and absence of force; victim anonymity ordered.
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8 August 2011 |
| July 2011 |
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Tenant liable for extensive damage; court orders repair damages, limited window repair by glazier, and reduced lost-rent award.
Property damage – tenancy – measure of damages for repair and replacement of contents; window repair versus replacement (spring replacement sufficient) – mitigation/reduction of loss of rent where plaintiff declined defendant’s offer to repair – assessment of quantum based on expert estimates and assumed occupancy rate.
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27 July 2011 |
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Omissions in the magistrate’s record of statutory procedural safeguards render the summary trial a nullity and require retrial.
Criminal procedure – Magistrate’s Court Ordinance – s53 proviso (right to elect trial) – s17 (enquiry/endorsement as to jurisdiction) – ss58/59 (advice of rights) – necessity to record compliance – omissions render trial a nullity – duty of Crown counsel to point out procedural omissions.
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22 July 2011 |
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Appeal dismissed; quantum meruit award upheld where contractor proved entitlement and valuation was uncontradicted.
* Civil procedure – appellate timeliness – computation of days under Interpretation Ordinance; excluded days not counted. * Evidence – appellate deference to trial court’s factual and credibility findings. * Restitution/Quantum meruit – entitlement where services rendered believing payment was due; rentals not a quid pro quo. * Assessment of value – trial court may accept uncontradicted contractor’s itemised charges as reasonable.
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20 July 2011 |
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Section 33 requires the applicant to be unmarried when applying; respondent’s subsisting marriage defeated standing.
Domestic Proceedings Ordinance s33 – "single woman" requirement for affiliation applications; interpretation: literal v purposive construction; standing of married but separated women to seek affiliation orders; reliance on Stacey v Lintell, Jones v Evans, Gaines v W; absence of local equivalent to Legitimacy/Legitimacy Act reform.
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13 July 2011 |
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Failure to comply with mandatory s17 requirements renders a summary trial and conviction a nullity; committal is set aside.
* Magistrate’s Court Ordinance s17 – mandatory requirement to hold enquiry, make an order for trial endorsed on the information and signed by the Magistrate – strict compliance required
* Non-compliance with s17 renders summary trial and conviction a nullity
* Proceeds of Crime Ordinance s55 – committal based on a void conviction must be set aside
* Appellate procedure – appeal against conviction may be determined before related Supreme Court proceedings; appellate scrutiny depends on magistrate’s record
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5 July 2011 |
| June 2011 |
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Property Law
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21 June 2011 |
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Appeal dismissed: cutting a padlock constituted attempted burglary; identification and 12‑month sentence upheld.
* Criminal law – attempt – acts going beyond preparation: use of bolt cutters to break a lock can amount to attempt. * Evidence – identification – night-time, brief sighting may be reliable where witness knew accused, lighting and proximity adequate and witness steady under cross-examination. * Appellate review – interference with factual findings only where no evidence or unreasonable. * Sentencing – prior convictions relevant; lenient sentence not necessarily defective.
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21 June 2011 |
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Court upheld termination and rescinded land transactions on strong probability of bribery, granting declarations and damages in default of defence.
Public law/contract – judgment in default of defence; declaratory relief in alleged bribery/corruption cases; standard of proof (strong probability) for rescission; rescission without restitution where set-offable damages exceed restitution; striking out for non‑compliance with disclosure orders.
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14 June 2011 |
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Applicant's claim dismissed: respondent's ISM-band meters lawfully operated and applicant had no exclusive spectrum right.
Telecommunications law; ISM band designation and shared use; scope and effect of interim Spectrum Plan; requirement for spectrum licences; formal amendment of spectrum licences and Regulation 7 publication; liability for interference by ISM-certified devices.
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4 June 2011 |
| May 2011 |
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Buyer entitled to repayment and rescission after sellers failed to produce completion documents and repudiated the contract.
Contract law – share purchase: interim and final completion obligations; time-of-the-essence notice; waiver and affirmation by conduct; repudiatory breach for failure to produce contractual documents; attorney’s undertaking not a substitute for contractual delivery; remedies — restitution, rescission and cancellation of promissory note; wasted expenditure not recoverable where loss would not have been recouped.
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29 May 2011 |
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Deportation based solely on an untested recommendation without a right to be heard breached natural justice and was quashed.
Immigration law – Deportation under s.62 – Duty to afford a fair procedure and opportunity to be heard (Article 14(5)) – Ouster clause does not protect decisions that are nullities for breach of natural justice – ECHR applicable by extension – Lawfulness and reasonableness of detention under immigration powers.
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6 May 2011 |
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1 May 2011 |
| April 2011 |
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Criminal law
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19 April 2011 |
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Restrictive covenant in a building scheme enforceable; association’s approval power limited to honesty and good faith, not court-style reasonableness.
* Registered land – restrictive covenants – building scheme – requirements for mutual enforceability (common vendor; pre-laid estate; vendor’s intention; purchaser notice). * Construction of restrictive agreement – certainty – prior approval clause not void for uncertainty. * Implied terms – whether consent must be unreasonably withheld – court rejects broad implied reasonableness requirement where decisions are to be made by a small private committee; limits implied restriction to honesty, good faith and absence of improper purpose. * Equitable relief – conduct of parties – association entitled to injunction where it acted in good faith and respondent acted unilaterally.
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19 April 2011 |
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A declared 'full and final' payment was upheld; promissory estoppel and change of position bar restitution for alleged mistaken settlement.
Accord and satisfaction; promissory estoppel; change of position (defence to restitution); common and unilateral mistake; agency/authority to accept settlement; creditor status of investors.
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8 April 2011 |
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A creditor’s summons compelling liquidators to pay charged book debts was dismissed as procedurally improper; a six‑month adjournment for liquidators’ investigations was ordered.
Insolvency—liquidator’s investigatory duty and discretion—limits on court intervention—procedural propriety of summons by creditor seeking payment of charged book debts—absence of local insolvency rule analogous to ss.167/168 Insolvency Act 1986—adjournment to permit investigation.
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6 April 2011 |
| March 2011 |
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Magistrate’s credibility findings and admission of oral medical evidence upheld; appeal against conviction and sentence dismissed.
Criminal appeal — standard of appellate review of magistrates' factual findings (reasonableness) — self-defence — assessment of witness credibility — section 19 Evidence Ordinance (medical certificates) — admissibility of oral medical evidence — sufficiency of magistrate's reasons — grievous bodily harm — sentence review.
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31 March 2011 |
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An interim injunction restraining the respondent’s use of the applicant’s Yellow Pages trademarks and logo was granted pending trial.
* Trade mark and passing off – interim injunction – American Cyanamid principles – whether serious question to be tried and adequacy of damages – balance of convenience – protection of goodwill associated with YELLOW PAGES and Walking Fingers logo.
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7 March 2011 |
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An unequivocal guilty plea bars appeal against conviction; 18-month sentence for 153.19g cocaine was not manifestly excessive.
* Criminal law – guilty plea – appeal against conviction – section 161 Magistrate’s Court Ordinance – plea must be unequivocal to bar appeal.
* Criminal law – possession of cocaine – 153.19 grams – evidence of intent to supply.
* Sentencing – immediate custodial sentence – manifestly excessive test – appellate restraint.
* Judicial practice – magistrates’ reasons – must reflect contemporaneous thinking; avoid post-appeal tailoring.
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1 March 2011 |
| February 2011 |
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The appellant's appeal against refusal to set aside a default judgment was dismissed as out of time; no costs ordered.
Appeal — time limits — appeal against dismissal of application to set aside default judgment — operative order dated 16 January 2009 — notice of appeal filed 7 April 2009 out of time; Appeal procedure — determining whether a hearing produced an appealable order; Court procedure — proceeding in absence where respondent not served and further adjournment would be wasteful.
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25 February 2011 |