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Citation
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Judgment date
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| October 2014 |
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Late service of sufficiency bundle cannot be cured by "additional evidence"; court may grant out‑of‑time adjournment.
Criminal procedure – sufficiency hearings – statutory service of prosecution documents (s2B(4)) – late service cannot be cured by treating documents as "additional evidence" – adjournment applications (s2B(1)) directory, court retains discretion – discharge not required as punishment for Crown/police error.
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3 October 2014 |
| September 2014 |
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Magistrate’s assistance to an unrepresented accused was proper; possession established by presence; cannabis intent to supply conviction upheld.
Criminal law – possession – presence at premises where drugs found sufficient to prove possession. Criminal procedure – unrepresented accused – permissible judicial assistance; magistrate interventions not unfair where opportunities to obtain counsel given. Proof of intent to supply – packaging and other evidence required; doubt warrants acquittal. Sentencing – avoid double punishment where simple possession arises from same transaction as intent to supply.
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17 September 2014 |
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A Minister-director's nondisclosure of higher valuations breached fiduciary duty; defendant must account under a constructive trust.
Public law / Crown land – sale of Crown land – undervalue – fiduciary obligations of a Minister / Belonger to disclose knowledge of higher valuations. Equity – constructive trust and tracing – where fiduciary uses principal’s undervalued asset to obtain property, beneficiary entitled to proportionate share or lien (Foskett v McKeown; Lord Millett). Unjust enrichment / mutual mistake – alternative claims rejected where fiduciary knew of undervalue and Government intended to sell at stated price. Remedies – account for benefit, constructive trust, interest on unpaid rent, costs.
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5 September 2014 |
| July 2014 |
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A complex commercial dispute involving alleged LIBOR manipulation and indirect libel requires detailed documentary scrutiny and will be tried by judge alone.
Civil procedure – jury trial – Order 33 r 5 and Civil Procedure Ordinance sections 15–17 – whether prolonged examination of documents makes jury trial inconvenient – commercial loan disputes and alleged LIBOR manipulation – indirect libel claim – equitable issues and displacement of jury presumption.
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8 July 2014 |
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Remote testimony permitted only from properly equipped facilities; home Skype refused to protect trial fairness.
Audio Visual Link Ordinance – remote testimony – admissibility of evidence by Skype – unacceptable from private/home locations without proper transmission standards and safeguards – necessity to approximate viva voce to protect fair trial rights.
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8 July 2014 |
| May 2014 |
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Delay alone, without actual prejudice or prosecutorial fault, does not justify a permanent stay; unfitness requires expert proof.
Criminal procedure – application for permanent stay due to delay; fitness to stand trial – need for current psychiatric evidence; right to trial within reasonable time – stay only where fair trial impossible or trial unfair (Attorney General's Reference No 2 of 2001 [2003] UKHL 68); allocation of responsibility for delay; absence of actual prejudice.
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19 May 2014 |
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Criminal law
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9 May 2014 |
| March 2014 |
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Late disclosure of crucial expert evidence during trial justified exclusion where adjournment would cause unreasonable delay and unfairness.
Criminal law – Disclosure – Prosecutor’s duty to disclose evidence and material assisting the defence – Late disclosure of expert evidence during trial – Remedies: adjournment versus exclusion; unfairness and integrity of process.
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27 March 2014 |
| February 2014 |
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Loss of crucial bank CCTV, which prosecution failed to preserve, caused such prejudice that a permanent stay for abuse of process was granted.
Criminal law – Abuse of process – Loss/unavailability of material evidence (CCTV/video) – Duty of police/prosecutor to obtain, retain and disclose unused relevant material – Ebrahim test for stays where material unavailable; stay warranted if absence causes serious prejudice making fair trial impossible or if bad faith/serious fault by authorities.
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26 February 2014 |
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Appellants’ convictions for corruption upheld; Commission’s investigatory powers valid; sentences modified and fines reduced.
Integrity Commission – validity and commencement of amendments – power to investigate on own initiative; procedural requirements for complaints vs. investigations; Magistrates’ Court jurisdiction to try on Informations; Public Authorities Protection Ordinance limitation inapplicable to acts not bona fide executed; distinction between departmental policy and legal duty under Customs law; sufficiency of veterinary certificate under s.28 Public and Environmental Health Ordinance; aiding and abetting liability for participation in corruption; sentencing — custodial suspension quashed and fines reduced.
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7 February 2014 |
| January 2014 |
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Court refused to admit an absent witness’s written statement under s8(2) because admission would be unfair to the defence.
Evidence (Special Provisions) Ordinance s8(2) — admissibility of absent witness statements; distinction between s8(2)(b) and s8(2)(c) (outside jurisdiction v. all reasonable steps); s10 discretion — refusal where admission would be unfair and deprive accused of opportunity to controvert; what constitutes 'reasonable steps' to locate a witness.
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24 January 2014 |
| December 2013 |
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Court may extend time to file/serve information under s2G(7) where no real prejudice to accused is shown.
Criminal Procedure Ordinance s2G — Plea and directions hearings — Failure to file/serve information — Soneji approach: statutory intent and interests of justice — extension of time under s2G(7) — prejudice test; administrative failings of the prosecution.
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6 December 2013 |
| November 2013 |
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After conviction, bail pending appeal requires exceptional circumstances; defective notice and weak prospects meant bail was refused.
Criminal procedure – Bail pending appeal – No presumption of bail after conviction – Exceptional circumstances required (prima facie likelihood of success or sentence likely to be served) – Defective notice of appeal for failing to specify alleged misdirection/non‑direction – Alleged summing up misdirections (unanimity and good character) insufficient on material before court – Application for bail refused.
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25 November 2013 |
| August 2013 |
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Orders authorising biological samples are final and appealable; buccal swabs are "intimate" and appeals dismissed.
Criminal procedure — Police Force Ordinance — orders for intimate and non-intimate samples; finality of sample-taking orders and right to appeal; commencement of appeal and effect of recognizance on stay; definition of "intimate sample" includes buccal swabs; validity of affidavits sworn before presiding magistrate; orders may be made while suspect is in prison custody.
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21 August 2013 |
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Appeal dismissed where original information showed required magistrate endorsements; omission from appeal bundle did not void conviction.
Magistrates' Courts Ordinance s.18 — endorsement of information — mode of trial, election, plea — appeal against conviction — completeness of appeal record — nullity of proceedings.
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6 August 2013 |
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An appeal alleging a conviction was null for missing magistrate endorsements failed because the original information was properly endorsed.
Magistrate's Courts Ordinance s.18 – endorsement on information – mode of trial/election/plea; Strict compliance required; Appeal bundle deficiencies do not establish nullity where original record shows proper endorsements; Appellate review of original record permitted when bundle incomplete.
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6 August 2013 |
| July 2013 |
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Property Law
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26 July 2013 |
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An unincorporated association cannot hold land or claim proprietary estoppel where the Crown genuinely lacked knowledge of its rights; claims dismissed.
Crown land – Trespass and recovery of possession – Proprietary estoppel and unconscionability – Owner's knowledge and passive acquiescence essential for estoppel based on improvements – Unincorporated associations lack legal personality to hold land or be sued – Representative proceedings require court order and common interest.
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12 July 2013 |
| May 2013 |
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Applicant given opportunity to be heard; deportation recommendation and removal held lawful; application dismissed.
Immigration law – Deportation of overstayer – Adequacy of reasons and procedural fairness – Natural justice – Article 14 (protection from expulsion) – Wednesbury/irrationality not established – Detention and removal lawful under Immigration Ordinance.
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28 May 2013 |
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A widely circulated press release did not, without more, create a duty of care to investors for negligent misstatement.
Negligent misstatement – duty of care – Hedley Byrne principle and assumption of responsibility – requirement of proximity and identifiable class for statements made to induce investment. Press releases and general circulation – no duty to indeterminate class; foreseeability alone insufficient. Targeted communications (letters) – scope for duty depends on purpose, identifiable addressees and pleaded reliance.
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14 May 2013 |
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General press release and neutral bank letter did not create sufficient proximity or assumption of responsibility; claim struck out.
Negligent misstatement – duty of care – Hedley Byrne and Caparo – assumption of responsibility and proximity – press release as general circulation – requirement of identified person/class and pleaded reliance – strike out under Order 18 r19.
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13 May 2013 |
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Abolition of hearsay applies to affidavits; interlocutory discovery materials should ordinarily be admitted and weighed at trial.
Civil Evidence – hearsay – Evidence (Special Provisions) Ordinance abolishing hearsay rule applies to affidavits used in civil proceedings. Civil Procedure – Order 41, r.5 (affidavits limited to facts of deponent’s knowledge) and r.6 (power to strike scandalous, irrelevant or oppressive matter) – r.6 remains a discretionary exclusionary rule. Norwich Pharmacal / discovery – interlocutory proceedings attract a low threshold for admitting unsourced or redacted material; weight assessed at substantive hearing. Redacted documents and inquiry report extracts – admissibility depends on relevance and fairness, not automatic exclusion as hearsay.
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9 May 2013 |
| February 2013 |
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Transfer of Crown land set aside where it was procured under mistake and a total failure of contractual consideration.
Crown land transfer – rescission for mistake and total failure of consideration; alleged variation of Head of Agreement – requirement for contemporaneous documentary evidence; valuation/certification of works – evidentiary weight where actual works differ; Crown’s relief by setting aside transfer and restoration of title.
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18 February 2013 |
| December 2012 |
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The Registrar, not the Chief Justice, determines legal-aid fee mechanisms; the Registrar's fees decision was lawful and reasonable.
Administrative law – judicial review – illegality, irrationality and procedural impropriety – standard Wednesbury review. Constitutional/criminal procedure – right to legal representation at public expense – distinction between grant of legal aid and determination of fee mechanism. Court administration – Legal Aid Rules 1999 – Rule 3 (grant of legal aid) v Rule 5 (Registrar sets fees) – Registrar's discretion to establish fee scheme. Interpretation – advisory notes by Chief Justice do not amount to binding directions or orders where Rules delegate fee-setting to the Registrar.
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14 December 2012 |
| July 2012 |
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Defendant obtains summary judgment: registered restrictive agreement declared a forgery and removed from the land register.
Registered land – Restrictive agreement – Validity and registration – s.94 RLO: registration not conclusive; court may look behind the register to test execution and validity. Forgery – Signatures on restrictive covenant – Document expert evidence held decisive. Civil procedure – Summary judgment – Appropriate where no real or bona fide defence exists despite allegations of fraud. Burden of proof and credibility – Unchallenged expert and vendor affidavits sufficient to dispose without trial.
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16 July 2012 |
| March 2012 |
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Convictions quashed because sand was taken outside the statutory "coast," which must be narrowly construed.
Coast Protection Ordinance – definition of "coast" – statutory construction – "land bordering on the sea" confined to seashore/beach margin (low water mark to vegetation line); penal statute construed narrowly; appellate court cannot substitute findings of fact where trial judge made none.
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12 March 2012 |
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Civil Remedies
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5 March 2012 |
| January 2012 |
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Fraudulent understatement of transaction value attracts full stamp duty, interest and a statutory fourfold penalty against the respondent.
Stamp duty — classification of fixtures and chattels — application of Megarry & Wade test — valuation evidence — fraudulent understatement of transaction value — purposive construction of Stamp Duty Ordinance section 8 — fourfold penalty and interest.
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30 January 2012 |
| 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 |