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Citation
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Judgment date
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| 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 |
| 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 |
| 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 |