commit 1ce84719ea2e3e404ca621c098319a9ded5a40e5 Author: fengruixiang <474182370@qq.com> Date: Thu Apr 16 12:18:33 2026 +0800 init diff --git a/.gitignore b/.gitignore new file mode 100644 index 0000000..6d45c0a --- /dev/null +++ b/.gitignore @@ -0,0 +1,3 @@ +*.doc +*.docx +*.html \ No newline at end of file diff --git a/en_cases_hkca/2000_HKCA_341/CACV000175_2000.txt b/en_cases_hkca/2000_HKCA_341/CACV000175_2000.txt new file mode 100644 index 0000000..24419c7 --- /dev/null +++ b/en_cases_hkca/2000_HKCA_341/CACV000175_2000.txt @@ -0,0 +1,76 @@ +CACV 75/2000 + +IN THE HIGH COURT OF THE +HONG KONG SPECIAL ADMINISTRATIVE REGION +COURT OF APPEAL +CIVIL APPEAL NO. 175 OF 2000 +(ON APPEAL FROM CoURT OF FIRST INSTANCE ACTION No. HCA 11533 of 1996) +____________________ + +BETWEEN + +Dr Paul KI Ping-ki 1st Plaintiff +Hong Kong Washington Company 2nd Plaintiff + + and + +Next Magazine Publishing Ltd 1st Defendant +CHEUNG Kim-hung 2nd Defendant +Toppan Printing Co (HK) Ltd 3rd Defendant +YEUNG Wai-hong 4th Defendant +LEE Kwong-fung 5th Defendant + +____________________ + + +Before: Hon Leong and Woo JJA in Court +Date of hearing: 6 July 2000 +Date of delivery of judgment: 13 July 2000 + + +_________________ + +J U D G M E N T +________________ + +Woo JA (giving the judgment of the Court) : + This is an appeal by the 1st plaintiff, Dr Paul Ki, against Yuen J’s decision made on 2 May 2000. The decision was made in respect of an application for leave to appeal out of time from an order made on 30 May 1999 by Registrar Chu. The Registrar’s order was to the effect that the 1st defendant was entitled to set off the debt owed to it by Dr Ki against a judgment sum of $200,100 awarded to the plaintiffs in the action entitled HCA 11533 of 1996. Despite the fact that the Registrar’s order was made on 30 May 1999, Dr Ki only made an application for leave to appeal against that order out of time on 15 March 2000. + The factual background of this matter was set out in pages 2-4 of Yuen J’s judgment, which we do not propose to repeat except the following significant dates and events : +A defamation action brought by Dr Ki against Next Magazine Publishing Limited (“Next”, the 1st defendant herein), being HCA No. 8071 of 1994, was dismissed in June 1996 with costs to be paid by Dr Ki to Next. +In October 1996, Dr Ki brought another defamation against Next and four other defendants, being HCA No. 11533 of 1996 (this action), in respect of an article published by Next on 3 November 1995. +In May 1997, the costs payable by Dr Ki to Next in HCA No. 8071 of 1994 were taxed, amounting to $906,185.40 (“the taxed costs”). +In July 1997, Dr Ki not having made payment of the taxed costs, Next served a Bankruptcy Notice on him; in September 1997, a petition was presented for Dr Ki’s bankruptcy; in December 1997, a receiving order was made against Dr Ki; and in April 1998, Next filed its proof of debt. +In December 1998, the jury in HCA No. 111533 of 1996 awarded damages for defamation in the sum of $200,100 in favour of the plaintiffs (“the damages”). +Next had submitted a proof of debt in the sum of $1,060,882.66 to the trustee in bankruptcy (being the taxed costs payable by Dr Ki to Next plus interest). On the other hand, Next was also indebted to Dr Ki in the sum of $200,100 being the damages. + By a letter of 20 January 1999 addressed to the solicitors for Next, the Official Receiver stated that as the damages of $200,100 were exclusively to compensate the damage done to the personal reputation to Dr Ki, the sum did not form part of the property vested in the Official Receiver and trustee in bankruptcy in Dr Ki’s bankruptcy. + On 19 March 1999, Dr Ki took out a summons in HCA No. 11533 of 1996 to seek payment of the damages against the defendants. Registrar Chu who heard the summons, ordered that the 1st defendant do within seven days amend the proof of debt filed with the Official Receiver by deducting therefrom the sum of $200,100 together with interest thereon at judgment rate from 3 December 1998 until the date of the amended proof of debt. Regarding the effect of this order, Yuen J said : +“Although couched in mandatory terms requiring Next to amend its proof of debt, the effect of the order was that Next could set-off its liability to pay Dr Ki’s damages in the 2nd defamation action against its entitlement to costs from Dr Ki in the 1st defamation action.” + In his notice of appeal against Yuen J’s decision, Dr Ki raises three grounds of appeal, as follows : +the defendants did not obey the order of the Official Receiver made on 20 January 1999 (ie, the statement of the Official Receiver made in the letter of 20 January 1999 referred to above) and were therefore in contempt of court. +Dr Ki had made the mistake of applying to the Registrar instead of the Bailiff’s Office to execute the judgment in his favour in the sum of $200,100. The Registrar did not have the right to overturn the Official Receiver’s order. +The reason for the late appeal against Registrar Chu’s order was that Dr Ki had never received the written order which was made on 13 May 1999 and that the sealed copy of the order was not filed until 5August 1999. + Yuen J in her judgment identified, and we are of the view correctly, four factors to be considered whether the court should grant extension of time to Dr Ki to appeal the Registrar’s decision, namely, +the length of the delay; +the explanation for the delay; +the extent of prejudice to the respondent; and +the merit of the appeal. + The Judge held that the length of the delay, from the time limit of 5 days after the Registrar’s order for lodging the appeal, to 15 March 2000, a total of 10 months, was a most substantial delay. Even where the Registrar’s order was sealed on 5 August 1999, as Dr Ki now points out, there was a delay of over 7 months before Dr Ki lodged his application for time to appeal against the Registrar’s order. In our view, that is still a very substantial delay. + It is interesting to note that the reason for the delay now raised as ground (3) of appeal, referred to above, is very different from the reasons that were mentioned to Yuen J. Before the Judge, Dr Ki said that he was confused by the Registrar’s order which he told the Judge was inconsistent with the judgment in HCA No. 11553 of 1996 in his favour and the position of the trustee in bankruptcy as expressed in the Official Receiver’s letter of 20 January 1999. He also told the Judge that he had been distracted by another action in which he was involved sometime in May 1999. All these reasons were rejected by the Judge as amounting to no reasonable excuse for his lengthy delay. We agree with the Judge. Before us, Dr Ki points out that the Registrar’s order was difficult for him to understand. It was sometime in June 1999 when he went to the Bailiff’s Office trying to pursue the enforcement of the damages award that he was told that the Registrar’s order obstructed the enforcement. It is therefore clear that even if he was “confused” by the Registrar’s order, his confusion must have been cleared up as early as June 1999. + In the present notice of appeal, Dr Ki states that he had never received the written order which was made by the Registrar on 13 May 1999 and that the sealed copy of the order was not filed until 5 August 1999 as a reason for his delay in proposing to appeal against the Registrar’s order. He elaborates by telling us that it was not until sometime in February 2000 (and counsel for Next confirms that it was 8 February 2000) that the defendants’ solicitors sent him a copy of the sealed order. First, this reason for making his application for leave to appeal the Registrar’s order out of time is unbelievable because if it were true, it would have been made known to Yuen J. Secondly, even where Dr Ki was only supplied with a copy of the sealed order on 8 February 2000, there is not, nor can there be, any reasonable explanation why he did not lodge his appeal within the time allowed, instead of only making an application for leave out of time on 15 March 2000. + Neither the sealing of the order on 5 August 1999 nor the supply of a copy of the sealed order to him in February 2000 affects the time for lodging the appeal. Order 58, rule 1 of the Rules of the High Court relevant to the appeal against the Registrar’s order provides: +“Unless the Court otherwise orders, the notice [of appeal] must be issued within 5 days after the judgment, order or decision appealed against was given or made and must be served within 5 days after issue …” [emphasis added] +This differs from the terms of Order 59, rule 4 of the Rules of the High Court applicable to appeals to the Court of Appeal. Order 59, rule 4 provides: +“(1) Except as otherwise provided by these rules, every notice of appeal must be served under rule 3(5) not later than the expiration of the following period beginning on the date immediately following the date on which the judgment or order of the court below was sealed or otherwise perfected, that is to say – [the various periods are then set out]” [emphasis added] + From the difference in terms as emphasised above in the two rules, it is clear that regarding an appeal from a master’s or a Registrar’s order, the time starts to run from the date when the order or decision was given or made, whereas regarding an appeal to the Court of Appeal, the time starts to run from the date when the order appealed against was sealed or perfected. The sealing of the Registrar’s order in August 1999 and Dr Ki’s receipt of a copy of the sealed order in February 2000 therefore do not assist Dr Ki. Despite Dr Ki’s submissions and elaboration to us, the position remains almost the same that Dr Ki has advanced no reason or reasonable explanation for his delay, at least since June 1999, in taking any step to appeal against the Registrar’s order. The delay was inordinate and without any reasonable excuse. + While Yuen J held that there was no substantial prejudice suffered by Next or anyone else as Next was the only proving creditor in the bankruptcy of Dr Ki, she held that there was no merit in Dr Ki’s proposed appeal against the Registrar’s order. Section 35 of the Bankruptcy Ordinance, Cap 6 governs set-offs in bankruptcy. After citing that section, the Judge referred to authorities on the meaning of “mutual dealings” provided in the section. She came to the view, and we think correctly, that Next was entitled to set-off the taxed costs against the damages awarded in favour of Dr Ki. She therefore concluded, again correctly, that Dr Ki had failed to show a “real prospect of success on the merit” of the appeal in order for the court to exercise its discretion to extend time for him to appeal against the Registrar’s order, particularly in the light of such a lengthy delay. + The first ground of appeal raised by Dr Ki is premised on his assertion that the letter of the Official Receiver dated 20 January 1999 was an order made by the Official Receiver that the damages of $200,100 awarded to him were not to form part of the property vested in the Official Receiver and trustee in bankruptcy and that the defendants committed a contempt of court in failing to obey that order. In fact, the statement made by the Official Receiver in that letter could not be said to be an order. It was rather an opinion held by the Official Receiver and the letter was an expression of that opinion. It was just a matter for the court’s consideration in deciding how the judgment carrying the damages of $200,100 should be enforced. It is not a court order the disobedience of which may amount to a contempt of court. + Linked with this ground (1) of appeal, ground (2) also states that the Registrar did not have the right to overturn the Official Receiver’s so-called order. Dr Ki tries to reinforce this ground (2) by saying that he had made a mistake of making an application to the Registrar instead of to the Bailliff’s Office to enforce the judgment in the sum of $200,100 against Next. His application to the court on 19 March 1999 was by way of a summons for an order that Next pay him the damages of $200,100. As Yuen J said in her judgment, “in effect, the Registrar was being asked to determine whether Next could set off the damages, or whether Dr Ki could enforce the judgment giving him that award.” The Registrar had the jurisdiction to decide whether the judgment sum could be enforced against Next, and her decision was sought by Dr Ki. There was no mistake as alleged by Dr Ki that he had made. + In our view, the Judge had carefully decided the matter and considered all the four relevant factors regarding the exercise of her discretion whether to grant an extension of time for Dr Ki to appeal against the Registrar’s order. She also decided correctly on all those four factors. In our judgment, the Judge was fully justified in refusing to exercise her discretion to grant leave to Dr Ki. Dr Ki has not shown us any basis for our interfering with the Judge’s decision. We therefore dismiss the appeal with costs. + + + + (Arthur Leong) (K H WOO) +Justice of Appeal Justice of Appeal + +1st Plaintiff : Dr Paul KI Ping-ki, in person +Mr Richard Khaw, instructed by T.S. Tong & Co., for the 1st – 5th Defendant \ No newline at end of file diff --git a/en_cases_hkca/2000_HKCA_341/case.json b/en_cases_hkca/2000_HKCA_341/case.json new file mode 100644 index 0000000..fe08c8b --- /dev/null +++ b/en_cases_hkca/2000_HKCA_341/case.json @@ -0,0 +1,26 @@ +{ + "Date": "13 Jul, 2000", + "Action No.": "CACV175/2000", + "Neutral Cit.": "[2000] HKCA 341", + "case_title": "DR PAUL KI PING KI AND ANOTHER V. NEXT MAGAZINE PUBLISHING LTD AND OTHERS", + "page_title": "DR PAUL KI PING KI AND ANOTHER V. NEXT MAGAZINE PUBLISHING LTD AND OTHERS | [2000] HKCA 341 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "CACV175/2000", + "link": "https://www.hklii.hk/en/appealhistory/CACV/2000/175" + } + ], + "case_url": "https://www.hklii.hk/en/cases/hkca/2000/341", + "neutral_cit": "[2000] HKCA 341", + "court_code": "HKCA", + "content": "CACV000175/2000 DR PAUL KI PING KI AND ANOTHER v. NEXT MAGAZINE PUBLISHING LTD AND OTHERS\nCACV000175/2000\nCACV 175/2000\nIN THE HIGH COURT OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOURT OF APPEAL\nCIVIL APPEAL NO. 175 OF 2000\n(ON APPEAL FROM COURT OF FIRST INSTANCE ACTION NO.\nHCA 11533 OF 1996)\n____________________\nBETWEEN\nDr Paul KI Ping-ki\n1st Plaintiff\nHong Kong Washington Company\n2nd Plaintiff\nAND\nNext Magazine Publishing Ltd\n1st Defendant\nCHEUNG Kim-hung\n2nd Defendant\nToppan Printing Co (HK) Ltd\n3rd Defendant\nYEUNG Wai-hong\n4th Defendant\nLEE Kwong-fung\n5th Defendant\n____________________\nCoram: Hon Leong and Woo JJA in Court\nDate of hearing: 6 July 2000\nDate of delivery of judgment: 13 July 2000\n________________\nJ U D G M E N T\n________________\nWoo JA\n(giving the judgment of the Court) :\n1.\nThis is an appeal by the 1st plaintiff, Dr Paul Ki, against Yuen J's decision made on 2 May 2000. The decision was made in respect of an application for leave to appeal out of time from an order made on 30 May 1999 by Registrar Chu. The Registrar's order was to the effect that the 1st defendant was entitled to set off the debt owed to it by Dr Ki against a judgment sum of $200,100 awarded to the plaintiffs in the action entitled HCA 11533 of 1996. Despite the fact that the Registrar's order was made on 30 May 1999, Dr Ki only made an application for leave to appeal against that order out of time on 15 March 2000.\n2.\nThe factual background of this matter was set out in pages 2-4 of Yuen J's judgment, which we do not propose to repeat except the following significant dates and events :\n(a) A defamation action brought by Dr Ki against Next Magazine Publishing Limited (\"Next\", the 1st defendant herein), being HCA No. 8071 of 1994, was dismissed in June 1996 with costs to be paid by Dr Ki to Next.\n(b) In October 1996, Dr Ki brought another defamation against Next and four other defendants, being HCA No. 11533 of 1996 (this action), in respect of an article published by Next on 3 November 1995.\n(c) In May 1997, the costs payable by Dr Ki to Next in HCA No. 8071 of 1994 were taxed, amounting to $906,185.40 (\"the taxed costs\").\n(d) In July 1997, Dr Ki not having made payment of the taxed costs, Next served a Bankruptcy Notice on him; in September 1997, a petition was presented for Dr Ki's bankruptcy; in December 1997, a receiving order was made against Dr Ki; and in April 1998, Next filed its proof of debt.\n(e) In December 1998, the jury in HCA No. 111533 of 1996 awarded damages for defamation in the sum of $200,100 in favour of the plaintiffs (\"the damages\").\n(f) Next had submitted a proof of debt in the sum of $1,060,882.66 to the trustee in bankruptcy (being the taxed costs payable by Dr Ki to Next plus interest). On the other hand, Next was also indebted to Dr Ki in the sum of $200,100 being the damages.\n3.\nBy a letter of 20 January 1999 addressed to the solicitors for Next, the Official Receiver stated that as the damages of $200,100 were exclusively to compensate the damage done to the personal reputation to Dr Ki, the sum did not form part of the property vested in the Official Receiver and trustee in bankruptcy in Dr Ki's bankruptcy.\n4.\nOn 19 March 1999, Dr Ki took out a summons in HCA No. 11533 of 1996 to seek payment of the damages against the defendants. Registrar Chu who heard the summons, ordered that the 1st defendant do within seven days amend the proof of debt filed with the Official Receiver by deducting therefrom the sum of $200,100 together with interest thereon at judgment rate from 3 December 1998 until the date of the amended proof of debt. Regarding the effect of this order, Yuen J said :\n\"Although couched in mandatory terms requiring Next to amend its proof of debt, the effect of the order was that Next could set-off its liability to pay Dr Ki's damages in the 2nd defamation action against its entitlement to costs from Dr Ki in the 1st defamation action.\"\n5.\nIn his notice of appeal against Yuen J's decision, Dr Ki raises three grounds of appeal, as follows :\n(1) the defendants did not obey the order of the Official Receiver made on 20 January 1999 (ie, the statement of the Official Receiver made in the letter of 20 January 1999 referred to above) and were therefore in contempt of court.\n(2) Dr Ki had made the mistake of applying to the Registrar instead of the Bailiff's Office to execute the judgment in his favour in the sum of $200,100. The Registrar did not have the right to overturn the Official Receiver's order.\n(3) The reason for the late appeal against Registrar Chu's order was that Dr Ki had never received the written order which was made on 13 May 1999 and that the sealed copy of the order was not filed until 5August 1999.\n6.\nYuen J in her judgment identified, and we are of the view correctly, four factors to be considered whether the court should grant extension of time to Dr Ki to appeal the Registrar's decision, namely,\n(1) the length of the delay;\n(2) the explanation for the delay;\n(3) the extent of prejudice to the respondent; and\n(4) the merit of the appeal.\n7.\nThe Judge held that the length of the delay, from the time limit of 5 days after the Registrar's order for lodging the appeal, to 15 March 2000, a total of 10 months, was a most substantial delay. Even where the Registrar's order was sealed on 5 August 1999, as Dr Ki now points out, there was a delay of over 7 months before Dr Ki lodged his application for time to appeal against the Registrar's order. In our view, that is still a very substantial delay.\n8.\nIt is interesting to note that the reason for the delay now raised as ground (3) of appeal, referred to above, is very different from the reasons that were mentioned to Yuen J. Before the Judge, Dr Ki said that he was confused by the Registrar's order which he told the Judge was inconsistent with the judgment in HCA No. 11553 of 1996 in his favour and the position of the trustee in bankruptcy as expressed in the Official Receiver's letter of 20 January 1999. He also told the Judge that he had been distracted by another action in which he was involved sometime in May 1999. All these reasons were rejected by the Judge as amounting to no reasonable excuse for his lengthy delay. We agree with the Judge. Before us, Dr Ki points out that the Registrar's order was difficult for him to understand. It was sometime in June 1999 when he went to the Bailiff's Office trying to pursue the enforcement of the damages award that he was told that the Registrar's order obstructed the enforcement. It is therefore clear that even if he was \"confused\" by the Registrar's order, his confusion must have been cleared up as early as June 1999.\n9.\nIn the present notice of appeal, Dr Ki states that he had never received the written order which was made by the Registrar on 13 May 1999 and that the sealed copy of the order was not filed until 5 August 1999 as a reason for his delay in proposing to appeal against the Registrar's order. He elaborates by telling us that it was not until sometime in February 2000 (and counsel for Next confirms that it was 8 February 2000) that the defendants' solicitors sent him a copy of the sealed order. First, this reason for making his application for leave to appeal the Registrar's order out of time is unbelievable because if it were true, it would have been made known to Yuen J. Secondly, even where Dr Ki was only supplied with a copy of the sealed order on 8 February 2000, there is not, nor can there be, any reasonable explanation why he did not lodge his appeal within the time allowed, instead of only making an application for leave out of time on 15 March 2000.\n10.\nNeither the sealing of the order on 5 August 1999 nor the supply of a copy of the sealed order to him in February 2000 affects the time for lodging the appeal.\nOrder 58\n, rule 1 of\nthe Rules of the High Court\nrelevant to the appeal against the Registrar's order provides:\n\"Unless the Court otherwise orders, the notice [of appeal] must be issued within 5 days after the judgment, order or decision appealed against was\ngiven or made\nand must be served within 5 days after issue ...\" [emphasis added]\nThis differs from the terms of\nOrder 59\n, rule 4 of\nthe Rules of the High Court\napplicable to appeals to the Court of Appeal. Order 59, rule 4 provides:\n\"(1) Except as otherwise provided by these rules, every notice of appeal must be served under rule 3(5) not later than the expiration of the following period beginning on the date immediately following the date on which the judgment or order of the court below was\nsealed or otherwise perfected,\nthat is to say - [the various periods are then set out]\" [emphasis added]\n11.\nFrom the difference in terms as emphasised above in the two rules, it is clear that regarding an appeal from a master's or a Registrar's order, the time starts to run from the date when the order or decision was given or made, whereas regarding an appeal to the Court of Appeal, the time starts to run from the date when the order appealed against was sealed or perfected. The sealing of the Registrar's order in August 1999 and Dr Ki's receipt of a copy of the sealed order in February 2000 therefore do not assist Dr Ki. Despite Dr Ki's submissions and elaboration to us, the position remains almost the same that Dr Ki has advanced no reason or reasonable explanation for his delay, at least since June 1999, in taking any step to appeal against the Registrar's order. The delay was inordinate and without any reasonable excuse.\n12.\nWhile Yuen J held that there was no substantial prejudice suffered by Next or anyone else as Next was the only proving creditor in the bankruptcy of Dr Ki, she held that there was no merit in Dr Ki's proposed appeal against the Registrar's order.\nSection 35\nof the\nBankruptcy Ordinance\n,\nCap 6\ngoverns set-offs in bankruptcy. After citing that section, the Judge referred to authorities on the meaning of \"mutual dealings\" provided in the section. She came to the view, and we think correctly, that Next was entitled to set-off the taxed costs against the damages awarded in favour of Dr Ki. She therefore concluded, again correctly, that Dr Ki had failed to show a \"real prospect of success on the merit\" of the appeal in order for the court to exercise its discretion to extend time for him to appeal against the Registrar's order, particularly in the light of such a lengthy delay.\n13.\nThe first ground of appeal raised by Dr Ki is premised on his assertion that the letter of the Official Receiver dated 20 January 1999 was an order made by the Official Receiver that the damages of $200,100 awarded to him were not to form part of the property vested in the Official Receiver and trustee in bankruptcy and that the defendants committed a contempt of court in failing to obey that order. In fact, the statement made by the Official Receiver in that letter could not be said to be an order. It was rather an opinion held by the Official Receiver and the letter was an expression of that opinion. It was just a matter for the court's consideration in deciding how the judgment carrying the damages of $200,100 should be enforced. It is not a court order the disobedience of which may amount to a contempt of court.\n14.\nLinked with this ground (1) of appeal, ground (2) also states that the Registrar did not have the right to overturn the Official Receiver's so-called order. Dr Ki tries to reinforce this ground (2) by saying that he had made a mistake of making an application to the Registrar instead of to the Bailliff's Office to enforce the judgment in the sum of $200,100 against Next. His application to the court on 19 March 1999 was by way of a summons for an order that Next pay him the damages of $200,100. As Yuen J said in her judgment, \"in effect, the Registrar was being asked to determine whether Next could set off the damages, or whether Dr Ki could enforce the judgment giving him that award.\" The Registrar had the jurisdiction to decide whether the judgment sum could be enforced against Next, and her decision was sought by Dr Ki. There was no mistake as alleged by Dr Ki that he had made.\n15.\nIn our view, the Judge had carefully decided the matter and considered all the four relevant factors regarding the exercise of her discretion whether to grant an extension of time for Dr Ki to appeal against the Registrar's order. She also decided correctly on all those four factors. In our judgment, the Judge was fully justified in refusing to exercise her discretion to grant leave to Dr Ki. Dr Ki has not shown us any basis for our interfering with the Judge's decision. We therefore dismiss the appeal with costs.\n(Arthur Leong)\n(K H WOO)\nJustice of Appeal\nJustice of Appeal\nRepresentation:\n1st Plaintiff : Dr Paul KI Ping-ki, in person\nMr Richard Khaw, instructed by T.S. Tong & Co., for the 1st - 5th Defendant", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2000/CACV000175_2000.doc", + "file_name": "CACV000175_2000.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkca/2013_HKCA_16/CACC000171_2012.txt b/en_cases_hkca/2013_HKCA_16/CACC000171_2012.txt new file mode 100644 index 0000000..5ca80be --- /dev/null +++ b/en_cases_hkca/2013_HKCA_16/CACC000171_2012.txt @@ -0,0 +1,54 @@ +CACC 171/2012 + + +IN THE HIGH COURT OF THE +HONG KONG SPECIAL ADMINISTRATIVE REGION +COURT OF APPEAL +CRIMINAL APPEAL NO. 171 OF 2012 +(On Appeal From District Court Criminal Case No. 1383 of 2011) +___________ + +BETWEEN + +____________ + +Before : Hon Cheung and Barma JJA in Court +Date of Hearing : 4 January 2013 +Date of Judgment: 4 January 2013 +Date of Reasons for Judgment: 15 January 2013 + + + +Hon Cheung JA (giving the reasons for judgment of the Court) : + The appellant pleaded guilty to three charges of dealing with property known or believed to represent proceeds of an indictable offence, contrary to sections 25(1) and (3) of the Organized and Serious Crimes Ordinance, Cap. 455 and was sentenced to imprisonment of 2 years and 8 months by H H Judge Douglas Yau. The appellant was successful in his appeal against sentence before us and had his sentence reduced to 2 years’ imprisonment. We now give reasons for our judgment. +Facts + According to the summary of facts, between 20 October and 23 October 2009, two persons who resided in America and Taiwan, namely ‘PW1’ and ‘PW2’ were deceived by investment and lottery fraud and induced to remit funds into the Hong Kong bank accounts held in the name of the appellant. The total amount involved in relation to the three charges was in the sum of HK$2,042,120.47. + The appellant was the sole account signatory and account-holder of three personal saving bank accounts. + On 20 October and 23 October 2009, PW2 was deceived to remit HK$547,969 and HK$618,835.31 into one of the appellant’s bank accounts (charge 3). On 23 October 2009, PW1 was deceived to remit HK$355,251.90 and HK$520,064.26 into two of the appellant’s bank accounts (charges 1 and 2). + The monies were then withdrawn in cash or ATM transfer within one to two days. + The appellant was arrested on 12 December 2009. Under caution, he stated that: +He met a male named ‘Ah Yung’ when gambling in Macau and he owed ‘Ah Yung’ debts; +He was requested by ‘Ah Yung’ to use his bank accounts to deal with certain remittances and he did so accordingly; +After the monies were deposited into his bank accounts, he withdrew the monies and passed them to ‘Ah Yung’; +He did not know PW1 and did not know the reason why he deposited monies into his bank accounts; +He was told that PW2 was a relative of ‘Ah Yung’ and the inward remittance of HK$618,835.31 was related to the construction business of ‘Ah Yung’; +Although he did not receive any rewards for lending his bank accounts to ‘Ah Yung’, ‘Ah Yung’ did not require him to pay the debt in the sum of about $50,000 to $60,000. +The sentence + At the suggestion of the appellant’s lawyer (not Ms Flora Cheng who only appeared in this appeal), the Judge adopted a starting point of three years’ imprisonment for each of the charges, reduced it by one-third because of the plea and arrived at a sentence of two years’ imprisonment. He ordered 8 months on charge 3 to be served consecutively to the sentences on charges 1 and 2 which are to be served concurrently and arrived at a total sentence of 2 years and 8 months’ imprisonment. +The Court’s approach + In HKSAR v Boma Amaso [2012] 2 HKLRD 33 this Court (Stock VP, Cheung and Lunn JJA) maintained the view that because of the different circumstances that may arise in money laundering cases, it is not appropriate to provide a tariff of sentence. Instead the sentence should be based on factors such as the nature of the predicate offence, knowledge of the offender, whether an international element is involved, the sophistication of the offence, whether an organised criminal syndicate is involved, the number of transactions and the length of the crime, the role of the offender and whether the offender continued with the offence after detection by the authorities or discovery by the offender of the nature of the offence. + In considering the degree of culpability of the offender, the Court cited the example of the drug addict or petty crook who is paid a small sum to open an account and hand over its operation to another with no more participation and no more knowledge than that it is going to be used for some sort of crime and held that he ‘is much less culpable than an offender of a different sort not “used” in that way’. + + +Our view + The role played by the appellant in this case fits the example. As the Judge said, he had no knowledge of the crime behind the proceeds and all that he did was to allow his bank accounts to be used for dealing with the money. + In this case the amount involved is slightly more than $2 million and the money was remitted within a four day period. While the amount involved in the transaction is not a conclusive factor, it is nonetheless often an important factor to be considered. Although this case has an international element because of the overseas fraud, we are of the view that the final sentence of 2 years and 8 months’ imprisonment is excessive. This reflects a notional starting point of four years’ imprisonment which is usually adopted in cases involving far larger amounts (see, for example, HKSAR v. Lee Shun Fat (CACC 49/2012)). In HKSAR v. Zhan Jian Fu (詹劍富) CACC 258/2007, a sentence of 2 years and 8 months’ imprisonment was upheld on appeal where the amount under the two charges was about $2 million. But the aggravating feature in that case, apart from a similar overseas lottery fraud, is that the applicant there was a Mainlander who came to Hong Kong specifically to commit the crime by opening two bank accounts for the purpose of receiving the proceeds of fraud. On that basis the 2 years and 8 months’ imprisonment was clearly justified. + In our view an overall sentence of two years’ imprisonment is appropriate in this case. Although Ms Flora Cheng criticised the Judge for adopting an identical starting point for the three different sums, we had decided not to disturb the approach adopted by the Judge and had, instead, simply ordered the three sentences to be served concurrently to arrive at a global sentence of two years’ imprisonment. + + + + + + +Ms Peggy Lo, SPP of Department of Justice, for the respondent +Ms Flora Cheng, instructed by Director of Legal Aid, for the appellant diff --git a/en_cases_hkca/2013_HKCA_16/case.json b/en_cases_hkca/2013_HKCA_16/case.json new file mode 100644 index 0000000..d3a65f5 --- /dev/null +++ b/en_cases_hkca/2013_HKCA_16/case.json @@ -0,0 +1,26 @@ +{ + "Date": "15 Jan, 2013", + "Action No.": "CACC171/2012", + "Neutral Cit.": "[2013] HKCA 16", + "case_title": "HKSAR V. POON LOK MAN", + "page_title": "HKSAR V. POON LOK MAN | [2013] HKCA 16 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "CACC171/2012", + "link": "https://www.hklii.hk/en/appealhistory/CACC/2012/171" + } + ], + "case_url": "https://www.hklii.hk/en/cases/hkca/2013/16", + "neutral_cit": "[2013] HKCA 16", + "court_code": "HKCA", + "content": "CACC171/2012 HKSAR v. POON LOK MAN\nCACC 171/2012\nIN THE HIGH COURT OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOURT OF APPEAL\nCRIMINAL APPEAL NO. 171 OF 2012\n(On Appeal From District Court Criminal Case No. 1383 of 2011)\n___________\nBETWEEN\nHKSAR\nRespondent\nand\nPOON LOK MAN (潘樂民)\nAppellant\n____________\nBefore : Hon Cheung and Barma JJA in Court\nDate of Hearing : 4 January 2013\nDate of Judgment: 4 January 2013\nDate of Reasons for Judgment: 15 January 2013\n________________________\nREASONS FOR JUDGMENT\n________________________\nHon Cheung JA\n(giving the reasons for judgment of the Court) :\n1.\nThe appellant pleaded guilty to three charges of dealing with property known or believed to represent proceeds of an indictable offence, contrary to sections 25(1) and (3) of the\nOrganized and Serious Crimes Ordinance\n,\nCap. 455\nand was sentenced to imprisonment of 2 years and 8 months by H H Judge Douglas Yau. The appellant was successful in his appeal against sentence before us and had his sentence reduced to 2 years’ imprisonment. We now give reasons for our judgment.\nFacts\n2.\nAccording to the summary of facts, between 20 October and 23 October 2009, two persons who resided in America and Taiwan, namely ‘PW1’ and ‘PW2’ were deceived by investment and lottery fraud and induced to remit funds into the Hong Kong bank accounts held in the name of the appellant. The total amount involved in relation to the three charges was in the sum of HK$2,042,120.47.\n3.\nThe appellant was the sole account signatory and account-holder of three personal saving bank accounts.\n4.\nOn 20 October and 23 October 2009, PW2 was deceived to remit HK$547,969 and HK$618,835.31 into one of the appellant’s bank accounts (charge 3). On 23 October 2009, PW1 was deceived to remit HK$355,251.90 and HK$520,064.26 into two of the appellant’s bank accounts (charges 1 and 2).\n5.\nThe monies were then withdrawn in cash or ATM transfer within one to two days.\n6.\nThe appellant was arrested on 12 December 2009. Under caution, he stated that:\n1) He met a male named ‘Ah Yung’ when gambling in Macau and he owed ‘Ah Yung’ debts;\n2) He was requested by ‘Ah Yung’ to use his bank accounts to deal with certain remittances and he did so accordingly;\n3) After the monies were deposited into his bank accounts, he withdrew the monies and passed them to ‘Ah Yung’;\n4) He did not know PW1 and did not know the reason why he deposited monies into his bank accounts;\n5) He was told that PW2 was a relative of ‘Ah Yung’ and the inward remittance of HK$618,835.31 was related to the construction business of ‘Ah Yung’;\n6) Although he did not receive any rewards for lending his bank accounts to ‘Ah Yung’, ‘Ah Yung’ did not require him to pay the debt in the sum of about $50,000 to $60,000.\nThe sentence\n7.\nAt the suggestion of the appellant’s lawyer (not Ms Flora Cheng who only appeared in this appeal), the Judge adopted a starting point of three years’ imprisonment for each of the charges, reduced it by one-third because of the plea and arrived at a sentence of two years’ imprisonment. He ordered 8 months on charge 3 to be served consecutively to the sentences on charges 1 and 2 which are to be served concurrently and arrived at a total sentence of 2 years and 8 months’ imprisonment.\nThe Court’s approach\n8.\nIn\nHKSAR v Boma Amaso\n[2012] 2 HKLRD 33\nthis Court (Stock VP, Cheung and Lunn JJA) maintained the view that because of the different circumstances that may arise in money laundering cases, it is not appropriate to provide a tariff of sentence. Instead the sentence should be based on factors such as the nature of the predicate offence, knowledge of the offender, whether an international element is involved, the sophistication of the offence, whether an organised criminal syndicate is involved, the number of transactions and the length of the crime, the role of the offender and whether the offender continued with the offence after detection by the authorities or discovery by the offender of the nature of the offence.\n9.\nIn considering the degree of culpability of the offender, the Court cited the example of the drug addict or petty crook who is paid a small sum to open an account and hand over its operation to another with no more participation and no more knowledge than that it is going to be used for some sort of crime and held that he ‘is much less culpable than an offender of a different sort not “used” in that way’.\nOur view\n10.\nThe role played by the appellant in this case fits the example. As the Judge said, he had no knowledge of the crime behind the proceeds and all that he did was to allow his bank accounts to be used for dealing with the money.\n11.\nIn this case the amount involved is slightly more than $2 million and the money was remitted within a four day period. While the amount involved in the transaction is not a conclusive factor, it is nonetheless often an important factor to be considered. Although this case has an international element because of the overseas fraud, we are of the view that the final sentence of 2 years and 8 months’ imprisonment is excessive. This reflects a notional starting point of four years’ imprisonment which is usually adopted in cases involving far larger amounts (see, for example,\nHKSAR v. Lee Shun Fat\n(CACC 49/2012)). In\nHKSAR v. Zhan Jian Fu\n(\n詹劍富\n) CACC 258/2007, a sentence of 2 years and 8 months’ imprisonment was upheld on appeal where the amount under the two charges was about $2 million. But the aggravating feature in that case, apart from a similar overseas lottery fraud, is that the applicant there was a Mainlander who came to Hong Kong specifically to commit the crime by opening two bank accounts for the purpose of receiving the proceeds of fraud. On that basis the 2 years and 8 months’ imprisonment was clearly justified.\n12.\nIn our view an overall sentence of two years’ imprisonment is appropriate in this case. Although Ms Flora Cheng criticised the Judge for adopting an identical starting point for the three different sums, we had decided not to disturb the approach adopted by the Judge and had, instead, simply ordered the three sentences to be served concurrently to arrive at a global sentence of two years’ imprisonment.\n(Peter Cheung)\n(Aarif Barma)\nJustice of Appeal\nJustice of Appeal\nMs Peggy Lo, SPP of Department of Justice, for the respondent\nMs Flora Cheng, instructed by Director of Legal Aid, for the appellant", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2012/CACC000171_2012.docx", + "file_name": "CACC000171_2012.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkca/2013_HKCA_328/CACC000188A_2009_abp_fallback.txt b/en_cases_hkca/2013_HKCA_328/CACC000188A_2009_abp_fallback.txt new file mode 100644 index 0000000..5f9c2b9 --- /dev/null +++ b/en_cases_hkca/2013_HKCA_328/CACC000188A_2009_abp_fallback.txt @@ -0,0 +1,12 @@ +CACC 188/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO. 188 OF 2009 (ON APPEAL FROM HCCC NO. 7 OF 2009) _______________________ BETWEEN HKSAR Respondent   and    MBUGUA JAMES WAIGWA Applicant  _______________________ Before: Hon Yuen JA, Barnes and McWalters JJ in Court Date of Hearing: 3 July 2013 Date of Judgment: 10 July 2013 J U D G M E N T    Hon Yuen JA (giving the Judgment of the Court): This is an application by James Waigwa Mbugua (“the Applicant”) for leave to appeal out of time against his conviction on 21 May 2009 by the late Deputy High Court Judge Mackintosh and a jury of one count of trafficking in dangerous drugs. +Prosecution case at trial The prosecution case against the Applicant, a 44 year old businessman from Kenya, was that on 6 July 2008, he arrived at Hong Kong International Airport from Kuala Lumpur. He was from Kenya, and he had flown from Delhi to Mumbai and from there to Kuala Lumpur the previous day. Customs officials at Hong Kong airport observed that his abdomen was bulging abnormally. He was escorted to hospital where a medical examination confirmed the presence of foreign objects in his body. He was arrested. On that and the following 8 days, he excreted a total of 75 pellets containing 610.67g of heroin hydrochloride, with a street value of more than $500,000. The day after his arrest, the Applicant was interviewed by Customs officers through a Swahili interpreter. The record of interview was produced at the trial. He said he had gone to India for business. While in India, he met some West Africans at a hotel. He said they forced him to swallow the pellets. If he did not do so, he would not be able to continue with his journey to Guangzhou, where he was heading to buy clothes and medical equipment. The West Africans paid for his fare to Hong Kong and promised a reward of US$4,000. He said he was forced to smuggle illegal goods into Hong Kong, he regretted what he had done and asked for leniency. There was no mention of any threat to any members of his family. Defence case at trial The Applicant pleaded not guilty to a charge of trafficking in dangerous drugs. He gave evidence at trial. He said that the year +before, in August 2007 his father had been kidnapped or “hijacked”. His own business failed and he was promised work by some people in Kenya at a factory in India. He borrowed money to travel to Delhi. In Delhi he met some West Africans who took him to Mumbai. They claimed to be the same people, or in the same gang of people, who had kidnapped his father. They gave him some pellets which he was told to swallow. They threatened they would kill his father and impliedly injure his wife and family if he did not co-operate. If he did, his father would be released. He said he was beaten and during cross-examination he said (for the first time) that two guns were pointed at his head. He therefore did as he was told. The West Africans paid for his trip to Hong Kong. His instructions were that when he arrived in Guangzhou, he should find himself a hotel, call a number in Mumbai to give the name of the hotel he was staying at, and someone would be sent to collect the goods from him. Issues at Trial The Applicant was represented at trial. The issues were whether he knew the contents of the pellets and whether he was acting under duress. Conviction The Applicant was found guilty by a unanimous verdict. The judge took a starting point of 20 years imprisonment in view of the quantity of drugs involved and added 1 year to reflect the international element involved in the offence, making a total term of 21 years. +Application for leave to appeal On 3 June 2009 the Applicant applied for leave to appeal against sentence. A typewritten document and a handwritten document accompanied his Form XI. In the typewritten document headed “PLEAD GUILTY”, he said that when he was in Mumbai he was driven off to a slum where he saw two Indians with guns. He was told that he had to swallow some pellets containing “powder chemical”, that he had to follow instructions otherwise he would be killed and his family would be hurt, and he had no choice but to agree. He said “I plead guilty and beg leniency”. In the handwritten document, he said he had wanted to plead guilty whilst at the magistracy and had given mitigation instructions to his solicitors, but a Chinese man in court asked him to plead not guilty and eventually he pleaded not guilty. On 14 May 2010 the application for leave to appeal against sentence was dismissed by another division of this court (Hartmann JA and Lunn J, now Lunn JA). Nine months later, on 24 February 2011 the Applicant filed a notice for leave to appeal against conviction out of time. In an affirmation he admitted being a drug trafficker and said he had only pleaded not guilty because he was mentally ill. This allegation led to directions being given for an examination of the Applicant’s mental condition by psychiatrists. + Two psychiatric reports were produced which stated that in August 2009 (about 3 months after his conviction), he was referred to hospital for disturbance in his cell but no psychotic symptoms were elicited. He was diagnosed to be suffering from Adjustment Disorder. In December 2009 he was referred to hospital again and psychosis was diagnosed on that occasion. Anti-psychotic medication was prescribed. The psychiatrists were of the opinion that the Applicant was “likely suffering from schizophrenia currently in remission” at the time of their examination. Their opinion was that he was mentally fit to plead and give instructions at the time they examined him, but they were unable to express an opinion for the period from 6 July 2008 (when he was arrested) to 21 May 2009 (when he was sentenced). Ground of appeal The Applicant is now represented by Mr Ross of counsel and the only ground of appeal advanced concerns the judge’s direction to the jury to the effect that the threats would only be valid as a defence of duress if they were of “immediate or almost immediate” harm. It is argued that the judge should have used the word “imminent” or the phrase “close temporal link” as these refer to a longer period in the future. Mr Ross argued that by using the words “immediate or almost immediate”, the judge had excluded the threat of harm to the Applicant’s father, because (on the Applicant’s evidence) he was already in the gang’s hands and the harm to him could be inflicted sometime in the more distant future. Mr Ross also argued that when the judge directed the jury to ask themselves whether the Applicant could have taken evasive action “whether by going to the police or Customs, or in some +other way, such as warning his family by telephone or message of some sort, to ensure their safety ...”, he failed to take into account the position of the father who (on the Applicant’s evidence) had already been kidnapped the year before. Discussion The principles governing the court’s decision whether to grant leave to appeal out of time are well-established. The first relevant factor is the length of delay. As indicated earlier, this application is substantially out of time. There was a period of more than 1½ years between June 2009 (when the Applicant was convicted) and February 2011 (when he applied for leave to appeal against conviction out of time). The longer the delay, the more onerous is the Applicant’s burden to persuade the court to grant him leave out of time (R v Wong Kai Kong [1990] HKC 279, HKSAR v Corredor Medina CACC296/2007). Secondly, the Applicant was well aware of the appeal procedure as he had applied for leave to appeal against sentence within time. It was after that application failed that he sought to apply for leave to appeal against conviction. The reason he has given for the delay was his mental condition. However the psychiatric evidence can only account for at most a period of 4 months (from August to December 2009) when his psychosis was untreated. There was no expert evidence to support his allegation that his mental condition affected his ability to decide whether to lodge an application for leave to appeal against +conviction (in addition to pursuing the application regarding sentence) for the balance of the period of delay. Thirdly, and most importantly, is the consideration whether the ground of appeal is substantial and plainly arguable. In our view, it is not. Regarding the use of the words “immediate or almost immediate”, the judge was clearly tracking the language of Lord Bingham in R v Z [2005] 2 AC 467. Pausing here, it is correct that that part of Lord Bingham’s speech was obiter, but the breadth and depth of the discussion are such that it can be safely taken as the authoritative exposition of the current law regarding the defence of duress and should be preferred to other cases decided prior to that case. Moreover in our view there is no real difference between “imminent” and “almost immediate”. Thus at para 27 of R v Z, Lord Bingham refers to “the requirement that execution of a threat must be reasonably believed to be imminent and immediate if it is to support a plea of duress” and at para 28 he said “it should however be made clear to juries that if the retribution threatened against the defendant or his family ... is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged”. (Emphasis added). He drew no distinction between the two phrases. As for the term “close temporal link”, in our view that is a less direct way of expressing “imminence” or “immediacy”, and the latter should be preferred when directing a jury. + Nor can we agree with Mr Ross’s argument that by using the words “immediate or almost immediate”, the judge had excluded the threat of harm to the Applicant’s father, because (on the Applicant’s evidence) he was already in the gang’s hands and the harm to him could be inflicted sometime in the more distant future. One would have thought that the threatened harm to the Applicant’s father (who was already being held captive) would be more immediate than that to the Applicant’s wife and children. As for Mr Ross’s last argument, as we understand it, his complaint is that when the judge directed the jury to ask themselves whether the Applicant could have taken evasive action “whether by going to the police or Customs, or in some other way, such as warning his family by telephone or message of some sort, to ensure their safety before going to the authorities”, he failed to take into account the position of the father, who (on the Applicant’s evidence) had been held captive for some time (nearly a year) before the gang made its approach to the Applicant in Mumbai and who the gang threatened to kill if the Applicant did not co-operate. In our view, the “evasive action” meant in R v Z is that of the defendant avoiding the commission of a crime. The availability of such an action is of course directly affected by whether the defendant reasonably expected an immediate or almost immediate threat to life or serious injury to those threatened. In the passage set out in the above paragraph, the learned judge was simply giving examples of “evasive action”, hence the use of words like “some other way, such as ...”. One example of evasive action, which may be pertinent to the father’s position, was going to the police or customs in India, Malaysia or Hong Kong as +rescue efforts might have been made in the time lag before the gang expected to hear from the Applicant after checking into a hotel in Guangzhou. Another example of evasive action, which may be pertinent to the wife and children, was warning them by telephone. But these were just examples to explain to the jury what was meant by “evasive action”. The judge did not in any way suggest that the jury should find that the Applicant did in fact have those evasive actions available to him at the relevant time. That was a matter for the jury. The judge made sure that the jury did not lose sight of the Applicant’s allegations about the father’s position. The judge referred to it virtually immediately before handing out a document on the essential features of duress, when he reminded the jury of the Applicant’s evidence that “his father had been kidnapped in Kenya in August 2007 and was in the hands of the same syndicate or gang who were forcing him, in Mumbai, to swallow the packets and that his father would be killed if he did not co-operate and would be released if he did”. The judge referred to the father again when he recounted the Applicant’s evidence-in-chief “about his father’s kidnap, or hijack as it was put, in August 2007 by some people. He suggested that these were from the same group as those he had met in India. There was an agreement for his father’s release if he co-operated but, he said, his father would be killed, or so he believed, if he did not co-operate”. The judge referred to the father again when he recounted the Applicant’s cross-examination when he said the Applicant “reaffirmed that he was protecting his father ...”. + In the circumstances discussed above, we do not consider that there are any merits in the intended appeal and we would dismiss the application for leave to appeal against conviction out of time. (MARIA YUEN) Justice of Appeal (JUDIANNA BARNES) Judge of the Court of First Instance (IAN McWALTERS) Judge of the Court of First Instance   Mr Phillip Ross, instructed by Christine M. Koo & Ip, assigned by the Director of Legal Aid, for the Applicant Ms Catherine Ko, ADPP (Ag.) of Department of Justice, for the Respondent + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/en_cases_hkca/2013_HKCA_328/case.json b/en_cases_hkca/2013_HKCA_328/case.json new file mode 100644 index 0000000..0cc271b --- /dev/null +++ b/en_cases_hkca/2013_HKCA_328/case.json @@ -0,0 +1,26 @@ +{ + "Date": "10 Jul, 2013", + "Action No.": "CACC188/2009", + "Neutral Cit.": "[2013] HKCA 328", + "case_title": "HKSAR V. MBUGUA JAMES WAIGWA", + "page_title": "HKSAR V. MBUGUA JAMES WAIGWA | [2013] HKCA 328 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "CACC188/2009", + "link": "https://www.hklii.hk/en/appealhistory/CACC/2009/188" + } + ], + "case_url": "https://www.hklii.hk/en/cases/hkca/2013/328", + "neutral_cit": "[2013] HKCA 328", + "court_code": "HKCA", + "content": "CACC188A/2009 HKSAR v. MBUGUA JAMES WAIGWA\nCACC188A/2009 HKSAR v. MBUGUA JAMES WAIGWA\nCACC188A/2009 HKSAR v. MBUGUA JAMES WAIGWA\nCACC188A/2009 HKSAR v. MBUGUA JAMES WAIGWA\nCACC188A/2009 HKSAR v. MBUGUA JAMES WAIGWA\nCACC188A/2009 HKSAR v. MBUGUA JAMES WAIGWA\nCACC188A/2009 HKSAR v. MBUGUA JAMES WAIGWA\nCACC188A/2009 HKSAR v. MBUGUA JAMES WAIGWA\nCACC188A/2009 HKSAR v. MBUGUA JAMES WAIGWA\nCACC188A/2009 HKSAR v. MBUGUA JAMES WAIGWA\nCACC188A/2009 HKSAR v. MBUGUA JAMES WAIGWA\nCACC188A/2009 HKSAR v. MBUGUA JAMES WAIGWA\nCACC188A/2009 HKSAR v. MBUGUA JAMES WAIGWA\nCACC188A/2009 HKSAR v. MBUGUA JAMES WAIGWA\nCACC188A/2009 HKSAR v. MBUGUA JAMES WAIGWA\nCACC 188/2009\nIN THE HIGH COURT OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOURT OF APPEAL\nCRIMINAL APPEAL NO. 188 OF 2009\n(ON APPEAL FROM HCCC NO. 7 OF 2009)\n_______________________\nBETWEEN\nHKSAR\nRespondent\nAND\nMBUGUA JAMES WAIGWA\nApplicant\n_______________________\nBefore: Hon Yuen JA, Barnes and McWalters JJ in Court\nDate of Hearing: 3 July 2013\nDate of Judgment: 10 July 2013\n________________________\nJ U D G M E N T\n________________________\nHon Yuen JA\n(giving the Judgment of the Court):\n1.\nThis is an application by James Waigwa Mbugua (“the Applicant”) for leave to appeal out of time against his conviction on 21 May 2009 by the late Deputy High Court Judge Mackintosh and a jury of one count of trafficking in dangerous drugs.\nProsecution case at trial\n2.\nThe prosecution case against the Applicant, a 44 year old businessman from Kenya, was that on 6 July 2008, he arrived at Hong Kong International Airport from Kuala Lumpur. He was from Kenya, and he had flown from Delhi to Mumbai and from there to Kuala Lumpur the previous day. Customs officials at Hong Kong airport observed that his abdomen was bulging abnormally. He was escorted to hospital where a medical examination confirmed the presence of foreign objects in his body. He was arrested. On that and the following 8 days, he excreted a total of 75 pellets containing 610.67g of heroin hydrochloride, with a street value of more than $500,000.\n3.\nThe day after his arrest, the Applicant was interviewed by Customs officers through a Swahili interpreter. The record of interview was produced at the trial. He said he had gone to India for business. While in India, he met some West Africans at a hotel. He said they forced him to swallow the pellets. If he did not do so, he would not be able to continue with his journey to Guangzhou, where he was heading to buy clothes and medical equipment. The West Africans paid for his fare to Hong Kong and promised a reward of US$4,000. He said he was forced to smuggle illegal goods into Hong Kong, he regretted what he had done and asked for leniency. There was no mention of any threat to any members of his family.\nDefence case at trial\n4.\nThe Applicant pleaded not guilty to a charge of trafficking in dangerous drugs. He gave evidence at trial. He said that the year before, in August 2007 his father had been kidnapped or “hijacked”. His own business failed and he was promised work by some people in Kenya at a factory in India. He borrowed money to travel to Delhi.\n5.\nIn Delhi he met some West Africans who took him to Mumbai. They claimed to be the same people, or in the same gang of people, who had kidnapped his father. They gave him some pellets which he was told to swallow. They threatened they would kill his father and impliedly injure his wife and family if he did not co-operate. If he did, his father would be released. He said he was beaten and during cross-examination he said (for the first time) that two guns were pointed at his head. He therefore did as he was told.\n6.\nThe West Africans paid for his trip to Hong Kong. His instructions were that when he arrived in Guangzhou, he should find himself a hotel, call a number in Mumbai to give the name of the hotel he was staying at, and someone would be sent to collect the goods from him.\nIssues at Trial\n7.\nThe Applicant was represented at trial. The issues were whether he knew the contents of the pellets and whether he was acting under duress.\nConviction\n8.\nThe Applicant was found guilty by a unanimous verdict. The judge took a starting point of 20 years imprisonment in view of the quantity of drugs involved and added 1 year to reflect the international element involved in the offence, making a total term of 21 years.\nApplication for leave to appeal\n9.\nOn 3 June 2009 the Applicant applied for leave to appeal against sentence. A typewritten document and a handwritten document accompanied his Form XI.\n10.\nIn the typewritten document headed “PLEAD GUILTY”, he said that when he was in Mumbai he was driven off to a slum where he saw two Indians with guns. He was told that he had to swallow some pellets containing “powder chemical”, that he had to follow instructions otherwise he would be killed and his family would be hurt, and he had no choice but to agree. He said “I plead guilty and beg leniency”.\n11.\nIn the handwritten document, he said he had wanted to plead guilty whilst at the magistracy and had given mitigation instructions to his solicitors, but a Chinese man in court asked him to plead not guilty and eventually he pleaded not guilty.\n12.\nOn 14 May 2010 the application for leave to appeal against sentence was dismissed by another division of this court (Hartmann JA and Lunn J, now Lunn JA).\n13.\nNine months later, on 24 February 2011 the Applicant filed a notice for leave to appeal against conviction out of time. In an affirmation he admitted being a drug trafficker and said he had only pleaded not guilty because he was mentally ill. This allegation led to directions being given for an examination of the Applicant’s mental condition by psychiatrists.\n14.\nTwo psychiatric reports were produced which stated that in August 2009 (about 3 months after his conviction), he was referred to hospital for disturbance in his cell but no psychotic symptoms were elicited. He was diagnosed to be suffering from Adjustment Disorder. In December 2009 he was referred to hospital again and psychosis was diagnosed on that occasion. Anti-psychotic medication was prescribed.\n15.\nThe psychiatrists were of the opinion that the Applicant was “likely suffering from schizophrenia currently in remission” at the time of their examination. Their opinion was that he was mentally fit to plead and give instructions at the time they examined him, but they were unable to express an opinion for the period from 6 July 2008 (when he was arrested) to 21 May 2009 (when he was sentenced).\nGround of appeal\n16.\nThe Applicant is now represented by Mr Ross of counsel and the only ground of appeal advanced concerns the judge’s direction to the jury to the effect that the threats would only be valid as a defence of duress if they were of “immediate or almost immediate” harm. It is argued that the judge should have used the word “imminent” or the phrase “close temporal link” as these refer to a longer period in the future. Mr Ross argued that by using the words “immediate or almost immediate”, the judge had excluded the threat of harm to the Applicant’s father, because (on the Applicant’s evidence) he was already in the gang’s hands and the harm to him could be inflicted sometime in the more distant future. Mr Ross also argued that when the judge directed the jury to ask themselves whether the Applicant could have taken evasive action “whether by going to the police or Customs, or in some other way, such as warning his family by telephone or message of some sort, to ensure their safety ...”, he failed to take into account the position of the father who (on the Applicant’s evidence) had already been kidnapped the year before.\nDiscussion\n17.\nThe principles governing the court’s decision whether to grant leave to appeal out of time are well-established.\n18.\nThe first relevant factor is the length of delay. As indicated earlier, this application is substantially out of time. There was a period of more than 1½ years between June 2009 (when the Applicant was convicted) and February 2011 (when he applied for leave to appeal against\nconviction\nout of time). The longer the delay, the more onerous is the Applicant’s burden to persuade the court to grant him leave out of time (\nR v Wong Kai Kong\n[1990] HKC 279,\nHKSAR v Corredor Medina\nCACC296/2007).\n19.\nSecondly, the Applicant was well aware of the appeal procedure as he had applied for leave to appeal against\nsentence\nwithin time. It was after that application failed that he sought to apply for leave to appeal against conviction. The reason he has given for the delay was his mental condition. However the psychiatric evidence can only account for at most a period of 4 months (from August to December 2009) when his psychosis was untreated. There was no expert evidence to support his allegation that his mental condition affected his ability to decide whether to lodge an application for leave to appeal against conviction (in addition to pursuing the application regarding sentence) for the balance of the period of delay.\n20.\nThirdly, and most importantly, is the consideration whether the ground of appeal is substantial and plainly arguable. In our view, it is not.\n21.\nRegarding the use of the words “immediate or almost immediate”, the judge was clearly tracking the language of Lord Bingham in\nR v Z\n[2005]\n2 AC 467\n. Pausing here, it is correct that that part of Lord Bingham’s speech was\nobiter\n, but the breadth and depth of the discussion are such that it can be safely taken as the authoritative exposition of the current law regarding the defence of duress and should be preferred to other cases decided prior to that case.\n22.\nMoreover in our view there is no real difference between “imminent” and “almost immediate”. Thus at para 27 of\nR v Z,\nLord Bingham refers to “the requirement that execution of a threat must be reasonably believed to be\nimminent and immediate\nif it is to support a plea of duress” and at para 28 he said “it should however be made clear to juries that if the retribution threatened against the defendant or his family ... is not such as he reasonably expects to follow\nimmediately or almost immediately\non his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged”. (Emphasis added). He drew no distinction between the two phrases. As for the term “close temporal link”, in our view that is a less direct way of expressing “imminence” or “immediacy”, and the latter should be preferred when directing a jury.\n23.\nNor can we agree with Mr Ross’s argument that by using the words “immediate or almost immediate”, the judge had excluded the threat of harm to the Applicant’s father, because (on the Applicant’s evidence) he was already in the gang’s hands and the harm to him could be inflicted sometime in the more distant future. One would have thought that the threatened harm to the Applicant’s father (who was already being held captive) would be more immediate than that to the Applicant’s wife and children.\n24.\nAs for Mr Ross’s last argument, as we understand it, his complaint is that when the judge directed the jury to ask themselves whether the Applicant could have taken evasive action “whether by going to the police or Customs, or in some other way, such as warning his family by telephone or message of some sort, to ensure their safety before going to the authorities”, he failed to take into account the position of the father, who (on the Applicant’s evidence) had been held captive for some time (nearly a year) before the gang made its approach to the Applicant in Mumbai and who the gang threatened to kill if the Applicant did not co-operate.\n25.\nIn our view, the “evasive action” meant in\nR v Z\nis that of the defendant avoiding the commission of a crime. The availability of such an action is of course directly affected by whether the defendant reasonably expected an immediate or almost immediate threat to life or serious injury to those threatened. In the passage set out in the above paragraph, the learned judge was simply giving examples of “evasive action”, hence the use of words like “some other way, such as ...”. One example of evasive action, which may be pertinent to the father’s position, was going to the police or customs in India, Malaysia or Hong Kong as rescue efforts might have been made in the time lag before the gang expected to hear from the Applicant after checking into a hotel in Guangzhou. Another example of evasive action, which may be pertinent to the wife and children, was warning them by telephone. But these were just examples to explain to the jury what was meant by “evasive action”. The judge did not in any way suggest that the jury should find that the Applicant did in fact have those evasive actions available to him at the relevant time. That was a matter for the jury.\n26.\nThe judge made sure that the jury did not lose sight of the Applicant’s allegations about the father’s position. The judge referred to it virtually immediately before handing out a document on the essential features of duress, when he reminded the jury of the Applicant’s evidence that “his father had been kidnapped in Kenya in August 2007 and was in the hands of the same syndicate or gang who were forcing him, in Mumbai, to swallow the packets and that his father would be killed if he did not co-operate and would be released if he did”.\n27.\nThe judge referred to the father again when he recounted the Applicant’s evidence-in-chief “about his father’s kidnap, or hijack as it was put, in August 2007 by some people. He suggested that these were from the same group as those he had met in India. There was an agreement for his father’s release if he co-operated but, he said, his father would be killed, or so he believed, if he did not co-operate”.\n28.\nThe judge referred to the father again when he recounted the Applicant’s cross-examination when he said the Applicant “reaffirmed that he was protecting his father ...”.\n29.\nIn the circumstances discussed above, we do not consider that there are any merits in the intended appeal and we would dismiss the application for leave to appeal against conviction out of time.\n(MARIA YUEN)\nJustice of Appeal\n(JUDIANNA BARNES)\nJudge of the\nCourt of First Instance\n(IAN McWALTERS)\nJudge of the\nCourt of First Instance\nMr Phillip Ross, instructed by Christine M. Koo & Ip, assigned by the Director of Legal Aid, for the Applicant\nMs Catherine Ko, ADPP (Ag.) of Department of Justice, for the Respondent\nPlease refer to FAMC19/2014 for the relevant appeal(s) to the Court of Final Appeal.", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2009/CACC000188A_2009.doc", + "file_name": "CACC000188A_2009.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkca/2013_HKCA_567/CACC000042_2012.txt b/en_cases_hkca/2013_HKCA_567/CACC000042_2012.txt new file mode 100644 index 0000000..bc15c59 --- /dev/null +++ b/en_cases_hkca/2013_HKCA_567/CACC000042_2012.txt @@ -0,0 +1,301 @@ +CACC 42/2012 + + + +IN THE HIGH COURT OF THE +HONG KONG SPECIAL ADMINISTRATIVE REGION +COURT OF APPEAL +CRIMINAL APPEAL NO. 42 OF 2012 +(ON APPEAL FROM HCCC NO. 40 OF 2010) + + +BETWEEN + +Before : Hon Stock VP, Lunn JA and Barnes J in Court +Date of Hearing : 18 June and 28 August 2013 +Date of Judgment : 25 October 2013 +________________ +J U D G M E N T +________________ + +Hon Lunn JA (giving the Judgment of the Court): + The applicant sought leave to appeal against her conviction after trial by Deputy High Court Judge Andrew Chan , as he was then and a jury on 17 January 2012 of 14 counts of fraud, contrary to section 16A of the Theft Ordinance, Cap. 210 and the sentences of imprisonment imposed upon her in consequence, to a total of 7 years and 3 months imprisonment. +The Counts + Each of the counts alleged that the applicant, together with Hui Po Keung and Leung Chi Keung, Kenny, committed fraud on the respective banks on stipulated dates in the overall period 2 January to 9 July 2007. The Particulars of Offence of Count 1 illustrate the nature of the alleged frauds, namely that those persons: +“ … by deceit, namely by falsely representing that the purported or intended sales and purchases of goods mentioned in 21 Ming Fai Production Company Limited invoices were genuine, and with intent to defraud, induced the Standard Chartered Bank (Hong Kong) Limited to accept the said documents as genuine and to pay Ming Fai Production Company Limited, which resulted in benefit of the total sum of $9,805,355 Hong Kong currency to themselves, or in prejudice or a substantial risk of prejudice to the said Standard Chartered Bank (Hong Kong) Limited.” + +Background + The applicant, who is the wife of Mr Kenny Leung and the sister-in-law of Mr Hui Po Keung, stood trial together with them in a trial on the same indictment before the same judge in a trial which concluded in June 2011. Whilst her two co-accuseds were convicted of all 14 counts on the indictment the jury was unable to reach a verdict in respect of the applicant. As a result, the applicant was re-tried. +Overview + The 14 counts on the indictment concerned a total of 301 applications that were made on behalf of Cyberspeed Technology Company Limited (“Cyberspeed”) to 14 different banks for invoice financing payments in respect of alleged purchases of computers by Cyberspeed, to a total value of over $153 million, to be made to the vendor, Ming Fai Production Company Limited (“Ming Fai”) in the period in and between January and July 2007. There was no dispute that the banks granted those applications and made payments to that value to the stipulated bank accounts of Ming Fai. When Cyberspeed ceased business in July 2007, a total of over $21.47 million was owed to the various banks under the invoice financing arrangements. +The prosecution case +The fraud + It was the prosecution case that none of the 301 transactions described in the documentation provided in support of the application for invoice financing was concerned with a genuine transaction. That documentation asserted on its face that Cyberspeed had bought computers from Ming Fai, payment in respect of which was to be made through that bank financing. There were no such transactions. The purpose of the arrangement was to provide for funds for Cyberspeed. Hui Po Keung, the applicant’s brother-in-law, was a shareholder and director of Ming Fai and in control of that company. + Shortly after payments were made to Ming Fai by the banks as requested on behalf of Cyberspace, the monies, less a deduction of 0.2% commission of the monetary value received by Ming Fai, were transferred, first to one of three companies controlled by the applicant and her husband Kenny Leung and then to Cyberspeed. Those companies were Sofmap Company Limited (“Sofmap”), Global Gain Properties Limited (“Global Gain”) and Cyberspeed Services Limited (“Cyberspeed Services”). The movement of those monies, reflected in fund flows, was the subject of admitted facts. +The prosecution case against the applicant + The prosecution case against the applicant was that she was not only in name but also in fact the Financial Controller of Cyberspeed. She stated in her tax returns that she occupied that position for the financial years 2004-2005, 2005-2006 and 2006-2007 in which she described receiving salary of $360,000, $450,000 and $720,000 respectively. As the Financial Controller of Cyberspeed, she knew that Ming Fai, her brother-in-law’s decoration company, did not sell computers to Cyberspeed to a value of $153 million in the period of just over six months in the first half of 2007. She knew that there were no goods involved in the transactions in respect of which applications were made to the banks for invoice financing payments to be made to Ming Fai. + It was the prosecution case that the applicant was knowledgeable about invoice financing, having not only signed on applications for the grant of such facilities but also having received explanations about the operations of the facility from bank officers employed by a number of the banks with whom Cyberspeed had such facilities. +The defence case + Although the applicant did not avail herself of her right to give evidence she called her husband, Mr Kenny Leung as a witness in the defence case. He testified they met while the applicant was working at American Express and they married in 1994. In 2002, the applicant had left her employment with American Express and become a housewife. He said that 60 to 70% of the 301 transactions that were the subject of the charges were not genuine transactions. However, he said that the remaining balance concerned genuine sales of computers from Ming Fai to Cyberspeed. He prepared all the invoices and purchase orders on the letterhead of Ming Fai. It was an admitted fact that Mr Kenny Leung signed on all 301 application forms made to the banks for invoice financing. He testified that the applicant played no part in making those applications. Mr Kenny Leung testified that, having been given the security key to the bank accounts of Ming Fai, he transferred the payments made by the banks to Ming Fai in respect of invoice financing, less the 0.2% commission, to one or other of the three companies used as a first step in receiving those monies, which he then transferred to Cyberspeed itself. + Although the applicant held the title of Financial Controller of Cyberspeed, Mr Kenny Leung testified that in reality she did not perform any such duties. She was accorded that title for purposes of window dressing only. He said that although the applicant did attend the offices of Cyberspeed several mornings a week she merely followed arrangements approved by him. Her time was primarily absorbed looking after their young daughter. +GROUNDS OF APPEAL AGAINST CONVICTION + In the grounds of appeal against conviction advanced on behalf of the applicant by Mr Eric Kwok SC it was submitted, in effect, that the applicant had not received a fair trial. Firstly, evidence had been adduced improperly from witnesses called by the prosecution. Counsel for the prosecution had asked leading questions and even cross-examined some of those witnesses. Four former employees of Cyberspeed were stipulated to be the witnesses concerned. Further, that evidence had been accompanied by improper comments made by counsel for the prosecution. Secondly, it was submitted that the judge had interrupted and intervened in the evidence of prosecution witnesses to the extent that he had assumed the role of an advocate in the proceedings. Further, the judge had conducted himself in that manner in the defence case as well, in the evidence adduced from Mr Kenny Leung. + Finally, it was contended that the judge had failed to give the jury proper/adequate directions that they consider each of the 14 counts separately from one another. +A CONSIDERATION OF THE SUBMISSIONS + The four witnesses called in the prosecution case in respect of whom criticisms were made of prosecution counsel for the manner in which their evidence was adduced, namely by leading questions and cross-examination accompanied by improper comments, were identified as Mr Joe Lai Yiu Cho, Mr Danny Ho Kwai Yuen, Ms Ann Ng Mee Lin and Mr Marco Chan Yik Lung. All four of them had been former employees of Cyberspeed and, save for Mr Marco Chan, were colleagues at Super Dragon Technology at the time of their testimony. Mr Joe Lai is the sole proprietor of the latter company. Mr Danny Ho is the brother of the applicant. The court has been provided with a transcript of the testimony of all four witnesses. + Unsurprisingly, a considerable amount of evidence was adduced in evidence-in-chief of those witnesses by answers given to leading questions. Broadly speaking, that was done without issue being taken by counsel for the applicant. No doubt, that was because the evidence was not controversial. Where the evidence was controversial, counsel for the applicant objected readily. + An issue in the trial canvassed with some of the four witnesses was the nature of the business conducted at or the use made of premises of Cyberspeed at Kwai Chung, in particular whether or not any wholesale, rather than retail, business in computers was conducted at the premises. + In his evidence in chief, Mr Danny Ho, the warehouse supervisor of Cyberspeed said that nobody manned the Kwai Chung warehouse. He said that it was used, “to keep some laptop computer bags, laptop computer display shelves and miscellaneous items”. He agreed with the leading question that it was, “not a warehouse for computers”. However, he also said that Cyberspeed conducted a wholesale business, albeit that he was not involved himself. In cross-examination, it was asserted to him by counsel on behalf of the applicant that in his witness statement dated 12 November 2007 he had said of the Kwai Chung premises, “its main function was to put company’s goods, to store company’s goods, mostly hand-carry computers”. There followed an interchange with counsel: +“ A. I believe what I said in my witness statement was hand-carry computer bags. +Q. No…do you want to read paragraph 2 of that statement of yours dated 12 November?” + + It appears that thereafter the witness was provided with a copy of the statement and he was given an opportunity to read paragraph 2. However, counsel did not return to the issue of whether or not the statement asserted that hand-carry computers were stored at that warehouse, contenting himself with the witness’s agreement that he only visited the Kwai Chung warehouse rarely and that the items stored there were not his responsibility. He agreed that the wholesale side of the business was carried on by Mr Kenny Leung and that he was not involved. Also, Mr Danny Ho agreed with a series of leading questions asked at the end of cross-examination to the effect that his sister, the applicant, was not responsible for the day-to-day management of either the retail or wholesale business of Cyberspeed, its sales or purchases or negotiations with suppliers, customers or bankers. + Re-examination by counsel for the prosecution began with a wholly unacceptable sarcastic comment: + + +“ Now, since you were so observant of the management of Cyberspeed Technology… +Mr Chang: I object to that question. +Q. That is the sum total of your answer .. +Mr Chang: That is comment. +COURT: You can skip the first sentence, yes. +Mr Iu: All right.” + + Next, Mr Danny Ho said that Mr Kenny Leung was responsible for looking after the stock of the wholesale business. That evidence produced a barrage of hostile questions from counsel for the prosecution: +“ Why? What was the reason as you saw it? Why was it that you were required to look after the stocks for retail and he did not employ anybody to look after the stocks for wholesale but he would look after it personally?” +In the absence of the jury, the judge overruled counsel for the applicant’s objection that counsel for the prosecution was cross-examining his own witness. Counsel for the prosecution continued his line of questioning before the jury: +“ Q. …I was dealing with the stocks for the wholesale. You said there was wholesale. Now, you said Kenny Leung looked after the stocks himself. +Yes +Q. Now, you said he was a very busy man, right? +A. Yes. +Q. Right. Now, in the warehouse, that was yourself and three other staff. +A. Yes. +Q. Can you think of any reason why Kenny Leung would not appoint one of the four of you to help him or engage another person… +Mr Chang: I object to that question. It amounts to cross-examination of his own witness. +COURT: Allow. Thank you +Q. Can you think of any reason why he wouldn’t employ another one or delegate it to you or one of the four of you to do that? + A. I don’t know.” + + Counsel for the prosecution questioned the witness in a similar vein in respect of the role of the applicant in the company: +“ Q. Did you know that your sister signed cheques for Cyberspeed Technology? +No, I don’t know. +Q. I see. You don’t know. Did you know that your sister is one of the signatories to the Cyberspeed cheque accounts? +A. No, I don’t know. +Q. Do you know that your sister employed people, employed staff working for Cyberspeed Technology? Did you know that? +A. I don’t know either. +Q. You don’t know. I see. Did you know that the office staff would turn to her when there was an accounting problem? Did you know that? +Mr Chang: That’s a leading question, putting words into the witnesses mouth, and I apologise. +Mr Iu: I’ll rephrase it. Alright. There’s no argument.” + + That pattern of posing leading questions to the witness had been employed by counsel for the prosecution, without objection, in eliciting evidence-in-chief from the witness in respect of the applicant: +“ Q. Did you know that she was officially the Financial Controller of Cyberspeed Technology at Hua Chiao? +I don’t know. +Q. Did you know that she looked after the accounts or the accounting matters of Cyberspeed Technology at Hua Chiao? +A. I don’t know.” + + Although counsel for the prosecution was deflected in pursuing that pattern of impermissible questioning on that occasion, it was soon resumed: +“ Q. ...Did you know that bankers sometimes came to the offices of Cyberspeed Technology and would speak to Kenny Leung? Did you know that? +A. Yes, I know. +Q. Did you know that sometimes Wendy, sister Wendy also took part in those discussions? +Mr Chang: I object to that question, and that is not in accordance with the material on hand, and that is also a leading question, putting words into the witness’ mouth. +COURT: Thank you. Allow. +Q. Did you know that? +A. I don’t know. +Q. Or vice versa, put it this way, sometimes your sister and your brother-in-law would go to the banks and talk to the bankers, vice versa. +Mr Chang: I object to that again, putting words into the witness’ mouth. +COURT: “Do you know?” That is the question. +Mr Iu: Yes. +Q. Do you know that sometimes your.. +COURT: Yes or no? +I don’t know.” + + Counsel for the prosecution then embarked on traversing the assertion made by counsel for the applicant to Mr Danny Ho that he had said in an out-of-court statement that the main function of the Kwai Chung warehouse was, “to store company’s goods, mostly hand-carry computers.” He did so by the extraordinary device of simply reading out to Mr Danny Ho passages in another statement made shortly after the statement in respect of which he had been questioned in cross-examination and inviting the witness to confirm that the questions and answers were as read out and that the answers were correct to the best of his recollection at the time the statement was made. No objection was taken and the court did not intervene, notwithstanding the fact that the witness had in effect denied making the statement asserted by counsel for the applicant, who had not persisted in his attempt to have the witness confirm that the statement was inconsistent with his oral testimony. In the result, the assertion by counsel for the applicant to the witness was just that, a bare assertion, not supported by evidence. Nevertheless, counsel for the prosecution embarked in questioning his own witness in re-examination in the following fashion: +“ Q. Could you now look at Question 2 and Answer No. 2 in that statement? Does the question read like this: “Did the company have any other stores for goods in the time it was in business at Hua Chiao Commercial Building, Nathan Road, Mongkok?” That was the question the police asked of you. +A. Yes. +Q. And you answered the police like this: “As far as I know, besides the store at Hua Chiao, the company also leased a store once in an industrial building unit in Lam Tin Street, Kwai Chung, especially for holding parts and notebook computer covers.” +A. Yes. +Q. And then you go on to say this: “However, no notebook computers were kept at the store because it was not manned.” “It was not manned.” +A. Yes. +Q. Lastly, you said, “My workmates and I went to the store to draw stocks only when required.” +A. Yes. +Q. That was your answer. +A. Yes. +Q. Was that a correct answer to the best of your recollection at the time? +A. Yes. +Q. Finally, in the next question, Question No. 3, you were asked this question: “Did the suppliers deliver notebook computers to the store in Kwai Chung?” That was the question put to you. +A. Yes. +Q. And your answer was no. +A. That’s right. +Q. That was a correct answer at the time to the best of your recollection. +A. Yes.” + + It is apparent from an interchange between counsel during cross-examination on behalf of the applicant of Mr Joe Lai, the manager of Cyberspeed, which required the intervention of the court, that counsel for the prosecution failed to conduct himself in the manner appropriate to that role: +“ Q. Did you understand Mr Tsoi to be the company’s employee? +A. I am not sure. +Q. He helped Kenny Leung in wholesale business, as you said. +A. Yes, but I don’t know in what way Kenny employed him, the form of recruitment, I don’t know. +Q. His work was delivery, transportation of goods, he’s a driver. +MR IU: No, I think the proper question or the fair question is, “Do you know how he worked?” +MR CHANG: That’s my way of asking. +MR IU: No, it’s not your way of asking. +COURT: Stop. +MR IU: Sorry.” + + The context in which the interchange occurred concerned the evidence of Mr Joe Lai as to the business conducted at or the use made of premises of Cyberspeed at Kwai Chung, in particular whether or not any wholesale, rather than retail, business was conducted at the premises. In cross-examination, Mr Joe Lai testified that he had encountered a Mr Tsoi at the Kwai Chung premises and understood that he had something to do with a wholesale business in notebook computers of Mr Kenny Leung. + The question posed by counsel for the applicant was unobjectionable. In any event, it was no business of counsel for the prosecution to formulate the question he wished the witness to be asked. His intervention was uncalled for and rude to boot. It ought never to have happened. Fortunately, decisive judicial intervention brought the matter to a close eliciting a thoroughly merited appropriate apology from counsel for the prosecution. + In re-examination of that witness, counsel for the prosecution re-visited the issue of the operation of a wholesale business at the Kwai Chung warehouse. Again, he did so in a manner inappropriate to questioning a prosecution witness: +“ Q. Now, if the wholesale, as you understood it, that was taking place at Kwai Chung, you know why there was only one staff, Mr Tsoi, doing a.. one-man job? +A. I don’t know why, neither do I know how it was operated. +Q. You told this court in the beginning of your examination that the thrust of the business of Cyberspeed was retail throughout the years. Remember that? +A. Yes. +Q. You stand by that answer? +A. I only dealt with the retail business. +Q. Come on, you’re on the senior management, you work there six, seven years, you know what the business was about, what was the thrust of the business. +Mr Chang: my Lord, I hate to rise again and to object, but I do appreciate if my learned friend will refrain from cross-examining his own witness. +COURT: Thank you. Noted. Allow. +Q. Please. +A. Mainly carry out retail business.” + + As counsel for the applicant pointed out in their written submissions there were many other instances in which leading questions were put to prosecution witnesses by counsel for the prosecution in areas in which it was clear there was a dispute between the parties. However, in almost all of those instances no objection was taken on behalf of the applicant. The style of questioning of counsel for the prosecution created a strong impression that he suspected that the sentiments of those witnesses lay in the defence camp. Whilst that approach in a prosecutor is to be deprecated strongly, we are satisfied that in instances, cited earlier, in which impermissible questions were posed of witnesses to which objection was taken those witnesses held firm to their testimony and no damage was done to the defence case. Accordingly, we are satisfied that there is no merit in this ground of appeal. +Judicial interruptions of testimony + Needless to say, there were interventions from time to time from the judge in the course of the testimony of the four prosecution witnesses highlighted on behalf of the applicant. Counsel has not been able to point to any interruption which was in any way inappropriate. By contrast, the judge’s interruption at the end of the examination-in-chief of Mr Kenny Leung was uncalled for and inappropriate. + There was no issue that the documentary and computer records of Cyberspace were not available to the police when they made their investigation. Mr Danny Ho testified that in September 2007, at the request of Mr Kenny Leung, he had arranged for 80 to 100 boxes of documentation to be removed from the offices of Cyberspeed and taken to a 20 tonne lorry in a scrapyard in the New Territories where they were stored. Ms Ann Ng testified that on 18 September 2007 she had accompanied Mr Kenny Leung to that scrapyard in order to retrieve some of that documentation. However, they found no lorry in the scrapyard and were unable to retrieve any documentation. At Mr Kenny Leung’s behest she reported the loss to the police that day. Similarly, there was no dispute that the hard disks on the computers of Cyberspeed were damaged or missing. + In the context of Mr Kenny Leung’s evidence of the movement for storage of the documentary records of Cyberspeed from the company’s offices to the lorry in the scrapyard in the New Territories and the subsequent attempts to retrieve them, the following interchange ensued: +“ COURT: Well, straight to the question, please. +MR CHANG: Yes. +COURT: What happened? +Q. Did you -- did you type out a list of things to be retrieved? +A. Yes. +Q. What documents did you need at that time? Why did you need those documents? +COURT: Why did you need first? +MR CHANG: Yes. +COURT: The restructuring company wished to have those documents. Yes. +A. Yes. +Q. Now, look at page 25 which is the police report dated 18 September, which contained a list of 19 company names in respect of which a documents of lost report was filed. +A. Yes. +COURT: Were those documents really lost? Really? +A. The documents are put away for storage by Danny Ho were lost. +COURT: They were not caused to be lost. +INTERPRETER: Sorry, I don’t understand. +COURT: They [were] not made to disappear. They were genuinely lost. +A. Genuinely lost. +COURT: Thank you. So as the hard disk within the company’s computers. Hard disks. +MR CHANG: Server. +COURT: Hard disk. +MR CHANG: Hard disk. +COURT: Hard disk, within office computer, desktop. You see, we have heard evidence that they were either removed or damaged. Office, Mr Leung. Office. Office computers. Office computers. +A. Now I’m telling you why... +COURT: No. Office computers. +Q. Used in the office. +COURT: The computers used in your office. +Q. Used by Karen Lee, used by Ann Ng, used by you, those computers. +A. Yes. +COURT: Why were those hard disks either damaged or removed? +A. I don’t know. I was not the last person to deal with them. It was engineering staff who dealt with it. +COURT: Can you think of any reason why they would do such things? +A. Maybe apart from contacting me the liquidator, Alvan Liu, also contacted my secretary or the repair staff. Maybe he said if the data will not be used after liquidation the hard disk should be removed because those hardware would be sold later. The data would be lost. So I remember that he talked to me about that then I told him to talk to my secretary who arranged somebody to deal with it. That’s what I remember about this matter. +COURT: Without consulting you? Without asking you to look into what’s inside the hard disk? +A. He did not ask me further. +COURT: You see, at that stage you were still hoping for restructuring or second creditors’ meetings. You know, information inside computer would still be of some assistance to you. +A. It was not at that time. I saw that before the first creditors’ meetings they’d dealt with the computers. Computers were returned from the shops to the of course. They were put together with other computers in the office. I saw them do it before the first creditors’ meeting. Many equipments had already been put in the meeting room.” [Italics added.] + + Clearly, the judge evinced an obvious suspicion that the documentary and computer records of Cyberspeed had been deliberately destroyed, the clear inference being that Mr Kenny Leung was directly or indirectly responsible for that happening. In due course, that was the suggestion put to Mr Kenny Leung in cross-examination by counsel for the prosecution. At that time, the judge returned to the issue asking the witness: + “So the destruction of hard disc, the disappearance of the server as well as the documents they were simply coincidence?” + + In asking Mr Kenny Leung whether the documents had really been lost and in asking him if, in fact, they had been “caused” to be lost, the judge was trespassing onto the remit of counsel for the prosecution. He ought not to have asked those questions. They were questions for counsel for the prosecution. + Clearly, the line of questioning by the judge went primarily to the ambit of Mr Kenny Leung’s admitted criminality. He accepted that he was responsible for practising fraud on each of the 14 banks by presenting them with applications for the grant of invoices financing in respect of sham transactions to the extent of 60 to 70% of the purported transactions with Ming Fai. The questions asked by the judge, put directly in due course by counsel for the prosecution, went to the issue of whether or not Mr Kenny Leung was involved in covering up his crimes by having the relevant company records destroyed. Whilst it was the prosecution case that the applicant was a party to the frauds, it was never suggested that she was in any way a party to the destruction of the relevant company records. There was no evidence of that at all, as is apparent from the judge’s recitation of the evidence relevant to that issue in his summing up. + Insofar as the judge’s questioning might have impacted on the general credibility of Mr Kenny Leung, it is to be noted that not only did he admit in testimony that he had practiced fraud on the 14 banks but also be accepted that in his own trial he had lied in his testimony to the jury in testifying that the transactions were genuine. + In the result, whilst we are satisfied that the judge ought not to have posed the impugned questions, that did not viewed in context of his conduct of the proceedings as a whole constitute a material irregularity. +Separate consideration of each count + In order better to understand the context of the judge’s directions to the jury in respect of the need to consider each count separately, the hearing of 18 June 2013 was adjourned, so that the court could have the benefit of a transcript of the Opening and Closing speeches of counsel for the prosecution at trial and of the Closing speech of counsel for the applicant. It is clear from the speeches that counsel for the prosecution, notwithstanding the fact that there were 14 counts of fraud on the indictment, put its case on the basis that there was one underlying “fraudulent scheme” in which the applicant was a party. It was the prosecution case that the applicant was a party to the arrangement of the banking facilities, in which Ming Fai was named as a supplier of computers to Cyberspeed, pursuant to which the banks provided funding in the applications reflected in the 14 counts, in which Ming Fai was named as a supplier of computers to Cyberspeed. Further, it was contended that the applicant knew that Ming Fai was not a supplier of computers to Cyberspeed. It did not deal in computers at all. On the prosecution case, that obtained throughout in respect of Ming Fai, notwithstanding the fact that none of that behaviour was the subject of charges in the period mid-2004 to December 2006. + There is no dispute that the judge gave the jury the standard direction that they should consider each count on the indictment separately. He said: +“ You must consider the case against and for the defendant on each count separately.” + + Then, the judge went on to give the direction envisaged by footnote 5 of Specimen Direction 3 of the Judicial Studies Board’s Specimen Directions, namely: + “ Of course, that does not mean that you must consider each count in isolation from the other counts. There is quite a lot of common ground between the different counts on this indictment, because they cover a course of business dealings in the business over a significant period and there are common features between all these different counts. You are entitled to use your decision in relation to the facts of one count to assist you in reaching a conclusion on the facts of another count.” + + At an early stage in his directions to the jury the judge identified as one of the issues between the prosecution and defence: +“ whether the defendant had the necessary knowledge, intention and participation in defrauding the banks.” + + Subsequently, the judge gave the jury directions in respect of the issue of joint responsibility: +“ The prosecution case is that the defendant jointly committed the offence with Kenny and Hui Po Keung in all counts. … Where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are in it together as part of a joint plan or agreement to commit it, they are each guilty. The words “plan” and “agreement” do not mean there has to be any formality about it. An agreement to commit an offence may arise out of the course of conduct of two or more people….From their conduct you may be able to infer there is a plan or agreement. An agreement can be inferred from acting together. +The essence of joint responsibility for a criminal offence is that each person shared the intention to commit the offence and took some part in it, however great or small, so as to achieve that aim. +Your approach to this case should therefore be as follows: if you are satisfied that the offence of fraud was committed, and if, looking at the case of the defendant, you are sure that with the intention to commit the offence, she took some part in it, then she is guilty of the offence in question.” + + Then, the judge went on to describe to the jury how the prosecution put its case against the applicant: +“ …the defendant, being the financial controller, director and person in charge of the accounting department of Cyberspeed Technology: +knowing that there existed no genuine goods in these 301 transactions; +knowing that false invoices would be used by her husband to obtain invoice financing; and +knowing that false invoices would be relied on by the bank; +took part in applying and signing banking facilities, executing personal guarantees and transferring moneys.” [Italics added.] + + Later in the summing up, the judge revisited the twin issues of the applicant’s knowledge of the perpetration of the fraud on the various banks and her acts of participation in the frauds: +“ At the beginning of my summing-up, I have told you the essence of joint responsibility for a criminal offence is that each person shared the intention to commit the offence and took some part in it, however great or small, so as to achieve that aim. +Putting that into the context of this case, it means the prosecution have to make you sure that the defendant, knowing that there existed no genuine goods in these 301 transactions or some of these 301 transactions, knowing that invoices produced to the banks were false and would be relied upon, she took some part in it.” + + Of the evidence relevant to those issues, having reminded the jury that the applicant and her husband Mr Kenny Leung were shareholders and directors of all the relevant companies, except Sofmap, the judge said: +“ She could also operate all the corporate bank accounts singly. In addition to that, Wendy also had internet access to Cyberspeed Technology’s bank accounts in DBS and BEA since 2004. She could see all invoice finance transactions, including those of Ming Fai, on the computer screen in respect of the DBS account. +The prosecution say the defendant had knowledge about invoice financing. Between 2004 and 2007, the defendant signed on many, many banking facilities letters, corporate resolutions, authorising the granting of such facilities. The prosecution say after the granting of this invoice finance facilities, Kenny and Wendy started to purchase a large number of properties. The prosecution say by 2007, when Cyberspeed Technology had difficulty in paying their staffs, when Wendy had to move to a smaller house, the fact that the influx of 153 million could not have escaped her attention. Furthermore, the defendant continued to participate in the signing of letters of guarantee and banking facilities letters in 2007, and as late as April 2007. The last banking facilities letter that the defendant put her signature on was the Citic Ka Wah Bank facilities letter. That was done on 24 April 2007. +The prosecution say she was a real financial controller of Cyberspeed Technology. Between 2004 and 2007 the defendant claimed herself to be financial controller on tax returns. It was admitted in paragraph 62 of the Admitted Facts that at different places and times, she held herself out as financial controller. +The prosecution say she was responsible for the accounting department. I mentioned this morning about the bankers’ evidence. I do not want to repeat myself here, but PW19, Mr Man, of Bank of Communication; PW20, Miss Tam, of ICBC; PW29, Mr Lui Man-fai of Fubon; PW22, Mr Leung Ping-shun of DBS; PW31, Mr Li Wai-nin, Edwin, of PT Bank told you all about that, that they all thought that the defendant was responsible for financial matters or accounting matters. +The prosecution say looking from the monetary aspects, Wendy could not be involved only superficially in the company’s financial affairs. These monetary aspects include her interest in properties either personal or corporate, her interest in fixed deposits, her liability in mortgage repayment, her liability in executing unlimited personal guarantees. +The prosecution say the defendant had personal knowledge about Ming Fai’s business nature. Ming Fai was no more than just a decorator for Cyberspeed Technology’s retail shop and office. Ming Fai could not be a supplier of any computer or computer-related accessories to Cyberspeed Technology. She certainly should know the business of her sister’s husband. +The prosecution also say the defendant’s silence when contents of the banking facilities letters were read to her indicate her knowledge throughout. She did not raise any questions to the bankers about Ming Fai.” + + There is no dispute that the judge did not condescend to identifying the specific evidence available on each of the counts, contrasting and comparing the evidence on different counts. In respect of the evidence of the applicant’s role in securing and renewing invoice financing facilities with the various banks, as noted above, the judge dealt with matters generally, reminding the jury that: +“ Between 2004 and 2007 the defendant signed on many, many banking facilities letters, corporate resolutions, authorising the granting of such facilities.” + + Earlier in the summing up, the judge had reminded the jury of the Admitted Facts, including Exhibit 46, which put into evidence banking documentation in respect of each of the banks alleged to have been defrauded in each of the 14 counts. Those documents included the applications for the grant/renewal of invoice financing bank facilities, together with lists stipulating Cyberspeed’s suppliers. The applicant was a signatory of those documents. Of significance, was the fact that the banks restricted invoice financing to stipulated suppliers. Ming Fai was named as one of their suppliers in the facilities arranged by the applicant with the banks. + The judge summarised the evidence of the banker witnesses who testified in respect of the invoice financing facilities granted by the 14 respective banks: +“ All the bank officers stated generally in their evidence that prior to the granting of the facilities, their banks required Cyberspeed Technology: +to submit a pre-approved list of suppliers; +not in any way related or connected to any of those suppliers; +if such relationship exists, to declare the relationship to the bank and to provide further evidence to substantiate the purchase; +to use the money advanced to finance genuine purchase of goods.” + + As noted earlier, the judge reminded the jury that Ming Fai was a business run by her sister’s husband, which provided decoration services, including for Cyberspeed. As such, the issue was how it could be named as a supplier of computers and computer related accessories to Cyberspeed? + The judge made specific reference to the fact that the invoice financing facility with the Citic Ka Wah Bank, stipulating Ming Fai as a supplier, had been renewed by the applicant in April 2007. Of course, that was in the middle of the period stipulated in the counts on the indictment in which the offences were alleged to have been committed. However, the invoice financing facilities arranged with other banks had been granted prior to January 2007. + It follows that in identifying the three issues of knowledge said to be relevant to the applicant’s acts in applying for and signing bank facilities, namely knowing that “there existed no genuine goods in the 301 transactions” the judge was putting the cart before the horse. The bank facilities, save for Citic Ka Wah Bank, had been obtained before the impugned 301 transactions the subject of the counts. Clearly, the gravamen of the prosecution case was that the applicant secured the banking facilities naming Ming Fai as a supplier of computers knowing that not to be the case. Rather, she knew and intended that, as when required by their mutual cash-flow needs, her husband, Kenny Leung, would avail himself of that facility to obtain financing in respect of Ming Fai invoices. + Of the evidence of the limits of the applicant’s participation in the execution of the frauds, the judge reminded the jury of the defence case: +“ The defence say between January 2007 and July 2007, she only signed 70 cheques out of 283 cheques issued by Cyberspeed Technology through five of the 14 lending banks. She did not sign on any of the 301 invoice finance applications. Her only involvement in these 301 transactions was signing on five cheques transferring 2.85 million out of a total of 153 million. You can do your calculation yourself. I did mine briefly: 2.85 out of 153. She drew salary because she needed to, otherwise the creditworthiness as a guarantor would be called into question. The salary given to her was no more than using for mortgage repayment. +The defence say that the defendant may have knowledge about banking facilities, may have knowledge about invoice financing, or may have knowledge about Ming Fai, that, however, did not mean the defendant had the necessary knowledge of and involvement in, Kenny’s fraudulent scheme.” + + Notwithstanding the judge’s inaccuracy, save in respect of the Citic Ka Wah Bank’s invoice financing facility, in stating that the applicant had signed bank invoice financing facilities knowing that there were no genuine goods in the 301 transactions, we are satisfied that it was readily apparent from the banking documentation before the jury that all the other banking facilities were granted before any of the 301 transactions. More accurately stated, the issue was whether she had done that knowing that any application for invoice financing in respect of Ming Fai, rather than the 301 transactions it turned out to be, would not involve genuine goods and would be false. We are satisfied that was obvious to the jury. + As was made clear to the jury, the primary issue was the applicant’s knowledge of the falsity of the stipulation in the information supplied by her to the banks in respect of invoice finance facilities that Ming Fai was a supplier of computers to Cyberspeed. If the applicant knew that to be false, what was the purpose of Ming Fai being so stipulated? As the judge had directed the jury, the issue was whether the applicant was a party in a joint enterprise with her husband and her brother-in-law where that had been her role, whereas it was her husband’s role to apply for the invoice financing funds in each purported transaction in which Ming Fai was the named beneficiary, as particularised in the counts in the indictment. At issue, was whether when she applied for the bank invoice financing facilities from the 14 banks she knew and intended that, as and when required by their mutual cash-flow needs, her husband, Kenny Leung, would avail himself of that facility to obtain funds in respect of Ming Fai invoices. + We are satisfied that that the summing up overall identified those issues and posed the appropriate questions for the jury. +Conclusion + Having regard to the matters addressed in paragraphs 26 to 31 of this judgment. We grant the application for leave to appeal against conviction but, treating the hearing of the application as the hearing of the appeal, we dismiss the appeal against conviction. +SENTENCE +Reasons for sentence + In imposing sentence on the applicant, the judge acknowledged that her husband, Mr Kenny Leung was the “mastermind” behind the fraudulent scheme, in which he had made false invoices and purchase orders which he produced to banks in order to obtain invoice finance loans. He found that he had done so, “to save you and your husband’s ailing computer business and to ease the financial difficulty”. Of the applicant’s role, the judge to determine that she had assisted her husband: +“ in applying for banking facilities, signing on banking facility letters, company resolutions, exercising deeds of guarantee and transferring moneys.” + + The judge said that the seriousness in the commission of these offences lay, first of all, in the fact that invoice financing requires a relationship of trust between the applicants for finance and the banks. He noted that that relationship of trust is vulnerable to the use of false documents. He said that the factors identified by the courts in cases involving letters of credit fraud of banks as relevant to sentence were relevant to sentence in this case. He identified the relevant factors stipulated in the judgment of this court in HKSAR v Dai Chi Wai as being, “the amount of the loans, the number of banks, the period, the role of each defendant and the actual loss to the bank”. + The judge noted that in HKSAR v Law Chi-man, Kenneth this court had determined that a total sentence of 6 years’ imprisonment imposed on the appellant after trial in respect of three charges, two of conspiracy to fraud and one of fraud of three separate banks, involving total loans of $15.6 million and the loss of $9.8 million was not excessive. + As Stock JA, as he was then, noted in the judgment of the court the applicant was not the prime mover behind the offences. The three charges involved loans of $4.5 million, $3.6 million and $7.5 million of which the respective losses were $2.5 million, $1.8 million and $5.5 million. The court quashed sentences of 6 years’ imprisonment imposed in respect of each of the charges and substituted sentences of 4 years’ imprisonment. However, it ordered that two years of sentence of imprisonment imposed in respect of Charge 3 be served consecutively to the sentences of imprisonment imposed in respect of the other charges. Accordingly, the total sentence of imprisonment imposed on the appellant remained 6 years’ imprisonment. + Finally, the judge referred to the judgment of this court in the HKSAR v Lee Kwok Yun & Others. He noted that this court determined appropriate a total sentence of 6 years’ imprisonment imposed upon the applicant after he had pleaded guilty. There, the applicant pleaded guilty to 18 counts of false accounting, concerning letters of credit related to goods which did not exist in which the banks sustained a total loss of US$11.4 million. + Of the circumstances of the commission of this case, the judge noted that the loans obtained from the banks in total amounted to $153 million, with an outstanding loss of $21.4 million. Further, that those monies have been obtained by way of 301 applications in a period of just over six months. He noted that Citic Ka Wah Bank suffered a loss of $6.8 million having advanced a total of $17.5 million (Count 3), whereas Industrial and Commercial Bank of China sustained a loss of $6.4 million having advanced a total of $25.7 million (Count 9). +Sentence + In sentencing the applicant, the judge acknowledged that the applicant had played a “slightly lesser role” and imposed sentences of 4 years’ imprisonment in respect of each of Counts 3 and 9 and three years’ imprisonment in respect of each of the other 12 counts. Then, the judge ordered that 3 months’ imprisonment imposed in respect of counts 1 to 8 and counts 10 to 14 be served consecutively to the sentence of imprisonment imposed in respect of Count 9. Accordingly, the total sentence of imprisonment imposed upon the applicant was 7 years and 3 months. +GROUNDS OF APPEAL AGAINST SENTENCE + Mr Kwok submitted that the overall sentence of 7 years and 3 months’ imprisonment imposed upon the applicant was manifestly excessive. He suggested that the judge had placed inadequate weight on mitigating factors, including: +the applicant had committed the offences because her husband’s business had encountered financial difficulties and her role culpability was less than that of her husband; and +the loss suffered by the banks of around $21 million was far less than the aggregate amount of loans obtained. + Next, it was submitted that the judge erred in sentencing the applicant to 4 years’ imprisonment in respect of counts 3 and 9, given that the respective losses were $6.4 million and $6.8 million. Further, given that 6 out of the 12 banks involved in the other counts sustained no loss at all and the largest loss was only $3.2 million, the sentences of 3 years’ imprisonment imposed in respect of the other counts was excessive. +A CONSIDERATION OF THE SUBMISSIONS + In HKSAR v Hui Po Keung and Leung Chi Keung, Kenny this court, differently constituted, was concerned, inter-alia, with the sentences of imprisonment imposed by the judge upon the applicant’s husband and her brother-in-law after their convictions in the first trial, of the offences of which the applicant was convicted in the re-trial. Determining Kenny Leung to have been the “mastermind” of the fraudulent scheme and Hui Po Keung to have played a lesser role the judge had imposed a total sentence of 8 years and 3 months’ imprisonment on the former and 7 years and 3 months’ imprisonment on the latter. Having regard to the aggravating features of the commission of the offences the subject of Counts 3 and 9, the judge sentenced Kenny Leung and Hui Po Keung to 5 years and 4 years’ imprisonment respectively for each count. For the other 12 counts, the judge sentenced Kenny Leung to 3 years’ imprisonment on each count and Hui Po Keung to 2 years’ imprisonment on each count. + Mr Kwok, who appeared in that appeal for Hui Po Keung, advanced arguments, some of which are similar to those advanced on behalf of the applicant in this case. The court rejected the submission that the sentences imposed in respect of Counts 3 and 9 were excessive, noting: +“ In Count 3, no fewer than 46 false applications were made to the Industrial and Commercial Bank of China over the period 2 January to 6 July 2007 resulting in total loans of $25,721,989, of which $6,443,718 was lost to the bank. In Count 9, no fewer than 33 false applications were made to Citic Ka Wah Bank over the period 11 January to 5 July 2007 resulting in total loans of $17,518,242, of which $6,804,251 was lost to the bank.” + + However, the court did accept that there was merit in the submission that in imposing the same sentences for each of the counts, other than Count 3 and Count 9, the judge failed to reflect appropriately the different aggravating factors obtaining in the commission of the offences. Of Count 4, the court noted that it concerned only three applications in the period 3 to 12 January 2007, as a result of which only $1,572,020 was lent, but nothing lost to the bank. In the result, the court quashed the sentences imposed on that count and substituted sentences of 3 years’ imprisonment for Kenny Leung and 2 years imprisonment for Hui Po Keung. + Having regard to the fact that, “not only was the 2nd applicant the mastermind of the fraudulent scheme but also its primary beneficiary” and noting the extent and duration of the fraudulent scheme and the loss to the banks, the court determined that the sentence imposed on Kenny Leung was “entirely appropriate”. By contrast, the court concluded that, having regard to the different roles and the benefits received, the sentence imposed on Hui Po Keung was excessive. The court quashed the order that 3 months of each of the sentences imposed in respect of Counts 4, 6 to 9 be served consecutively to the sentence of 4 years’ imprisonment imposed in respect of count 9. In the result, the total sentence of imprisonment imposed upon Hui Po Keung was 6 years. + We are satisfied that the applicant’s culpability fell between the culpability of her husband, Kenny Leung, and that of her brother-in-law, Hui Po Keung. The latter’s benefit from his participation in the fraudulent scheme was only 0.2% of the $153 million obtained from the banks. By contrast, the applicant and Kenny Leung shared the benefits flowing from the frauds. Further, we are satisfied that the total sentence of 7 years and 3 months’ imprisonment imposed upon the applicant was entirely appropriate. +Conclusion + For the reasons set out earlier, we allow the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, allow the appeal in respect of Count 4, which sentence we quash imposing in its place a sentence of 2 years’ imprisonment. We do not disturb any of the other orders. Accordingly, the total sentence of imprisonment imposed on the applicant is 7 years and 3 months. + + + + + +Mr David Leung, DDPP(Ag) and Mr Felix Tam, PP, of the Department of Justice, for the respondent + +Mr Eric T M Kwok, SC and Mr Tony C Y Li, instructed by Cham & Co, for the applicant diff --git a/en_cases_hkca/2013_HKCA_567/case.json b/en_cases_hkca/2013_HKCA_567/case.json new file mode 100644 index 0000000..618f8dc --- /dev/null +++ b/en_cases_hkca/2013_HKCA_567/case.json @@ -0,0 +1,26 @@ +{ + "Date": "25 Oct, 2013", + "Action No.": "CACC42/2012", + "Neutral Cit.": "[2013] HKCA 567", + "case_title": "HKSAR V. HO WAI CHING", + "page_title": "HKSAR V. HO WAI CHING | [2013] HKCA 567 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "CACC42/2012", + "link": "https://www.hklii.hk/en/appealhistory/CACC/2012/42" + } + ], + "case_url": "https://www.hklii.hk/en/cases/hkca/2013/567", + "neutral_cit": "[2013] HKCA 567", + "court_code": "HKCA", + "content": "CACC42/2012 HKSAR v. HO WAI CHING\nCACC 42/2012\nIN THE HIGH COURT OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOURT OF APPEAL\nCRIMINAL APPEAL NO. 42 OF 2012\n(ON APPEAL FROM HCCC NO. 40 OF 2010)\n________________________\nBETWEEN\nHKSAR\nRespondent\nand\nHO WAI CHING (何惠貞)\nApplicant\n________________________\nBefore : Hon Stock VP, Lunn JA and Barnes J in Court\nDate of Hearing : 18 June and 28 August 2013\nDate of Judgment : 25 October 2013\n________________\nJ U D G M E N T\n________________\nHon Lunn JA\n(giving the Judgment of the Court):\n1.\nThe applicant sought leave to appeal against her conviction after trial by Deputy High Court Judge Andrew Chan , as he was then and a jury on 17 January 2012 of 14 counts of fraud, contrary to section 16A of the\nTheft Ordinance\n,\nCap. 210\nand the sentences of imprisonment imposed upon her in consequence, to a total of 7 years and 3 months imprisonment.\nThe Counts\n2.\nEach of the counts alleged that the applicant, together with Hui Po Keung and Leung Chi Keung, Kenny, committed fraud on the respective banks on stipulated dates in the overall period 2 January to 9 July 2007. The Particulars of Offence of Count 1 illustrate the nature of the alleged frauds, namely that those persons:\n“ …by deceit, namely by falsely representing that the purported or intended sales and purchases of goods mentioned in 21 Ming Fai Production Company Limited invoices were genuine, and with intent to defraud, induced the Standard Chartered Bank(Hong Kong) Limited to accept the said documents as genuine and to pay Ming Fai Production Company Limited, which resulted in benefit of the total sum of $9,805,355 Hong Kong currency to themselves, or in prejudice or a substantial risk of prejudice to the said Standard Chartered Bank (Hong Kong) Limited.”\nBackground\n3.\nThe applicant, who is the wife of Mr Kenny Leung and the sister-in-law of Mr Hui Po Keung, stood trial together with them in a trial on the same indictment before the same judge in a trial which concluded in June 2011. Whilst her two co-accuseds were convicted of all 14 counts on the indictment the jury was unable to reach a verdict in respect of the applicant. As a result, the applicant was re-tried.\nOverview\n4.\nThe 14 counts on the indictment concerned a total of 301 applications that were made on behalf of Cyberspeed Technology Company Limited (“Cyberspeed”) to 14 different banks for invoice financing payments in respect of alleged purchases of computers by Cyberspeed, to a total value of over $153 million, to be made to the vendor, Ming Fai Production Company Limited (“Ming Fai”) in the period in and between January and July 2007. There was no dispute that the banks granted those applications and made payments to that value to the stipulated bank accounts of Ming Fai. When Cyberspeed ceased business in July 2007, a total of over $21.47 million was owed to the various banks under the invoice financing arrangements.\nThe prosecution case\nThe fraud\n5.\nIt was the prosecution case that none of the 301 transactions described in the documentation provided in support of the application for invoice financing was concerned with a genuine transaction. That documentation asserted on its face that Cyberspeed had bought computers from Ming Fai, payment in respect of which was to be made through that bank financing. There were no such transactions. The purpose of the arrangement was to provide for funds for Cyberspeed. Hui Po Keung, the applicant’s brother-in-law, was a shareholder and director of Ming Fai and in control of that company.\n6.\nShortly after payments were made to Ming Fai by the banks as requested on behalf of Cyberspace, the monies, less a deduction of 0.2% commission of the monetary value received by Ming Fai, were transferred, first to one of three companies controlled by the applicant and her husband Kenny Leung and then to Cyberspeed. Those companies were Sofmap Company Limited (“Sofmap”), Global Gain Properties Limited (“Global Gain”) and Cyberspeed Services Limited (“Cyberspeed Services”). The movement of those monies, reflected in fund flows, was the subject of admitted facts.\nThe prosecution case against the applicant\n7.\nThe prosecution case against the applicant was that she was not only in name but also in fact the Financial Controller of Cyberspeed. She stated in her tax returns that she occupied that position for the financial years 2004-2005, 2005-2006 and 2006-2007 in which she described receiving salary of $360,000, $450,000 and $720,000 respectively. As the Financial Controller of Cyberspeed, she knew that Ming Fai, her brother-in-law’s decoration company, did not sell computers to Cyberspeed to a value of $153 million in the period of just over six months in the first half of 2007. She knew that there were no goods involved in the transactions in respect of which applications were made to the banks for invoice financing payments to be made to Ming Fai.\n8.\nIt was the prosecution case that the applicant was knowledgeable about invoice financing, having not only signed on applications for the grant of such facilities but also having received explanations about the operations of the facility from bank officers employed by a number of the banks with whom Cyberspeed had such facilities.\nThe defence case\n9.\nAlthough the applicant did not avail herself of her right to give evidence she called her husband, Mr Kenny Leung as a witness in the defence case. He testified they met while the applicant was working at American Express and they married in 1994. In 2002, the applicant had left her employment with American Express and become a housewife. He said that 60 to 70% of the 301 transactions that were the subject of the charges were not genuine transactions. However, he said that the remaining balance concerned genuine sales of computers from Ming Fai to Cyberspeed. He prepared all the invoices and purchase orders on the letterhead of Ming Fai. It was an admitted fact that Mr Kenny Leung signed on all 301 application forms made to the banks for invoice financing. He testified that the applicant played no part in making those applications. Mr Kenny Leung testified that, having been given the security key to the bank accounts of Ming Fai, he transferred the payments made by the banks to Ming Fai in respect of invoice financing, less the 0.2% commission, to one or other of the three companies used as a first step in receiving those monies, which he then transferred to Cyberspeed itself.\n10.\nAlthough the applicant held the title of Financial Controller of Cyberspeed, Mr Kenny Leung testified that in reality she did not perform any such duties. She was accorded that title for purposes of window dressing only. He said that although the applicant did attend the offices of Cyberspeed several mornings a week she merely followed arrangements approved by him. Her time was primarily absorbed looking after their young daughter.\nGROUNDS OF APPEAL AGAINST CONVICTION\n11.\nIn the grounds of appeal against conviction advanced on behalf of the applicant by Mr Eric Kwok SC it was submitted, in effect, that the applicant had not received a fair trial. Firstly, evidence had been adduced improperly from witnesses called by the prosecution. Counsel for the prosecution had asked leading questions and even cross-examined some of those witnesses. Four former employees of Cyberspeed were stipulated to be the witnesses concerned. Further, that evidence had been accompanied by improper comments made by counsel for the prosecution. Secondly, it was submitted that the judge had interrupted and intervened in the evidence of prosecution witnesses to the extent that he had assumed the role of an advocate in the proceedings. Further, the judge had conducted himself in that manner in the defence case as well, in the evidence adduced from Mr Kenny Leung.\n12.\nFinally, it was contended that the judge had failed to give the jury proper/adequate directions that they consider each of the 14 counts separately from one another.\nA CONSIDERATION OF THE SUBMISSIONS\n13.\nThe four witnesses called in the prosecution case in respect of whom criticisms were made of prosecution counsel for the manner in which their evidence was adduced, namely by leading questions and cross-examination accompanied by improper comments, were identified as Mr Joe Lai Yiu Cho, Mr Danny Ho Kwai Yuen, Ms Ann Ng Mee Lin and Mr Marco Chan Yik Lung. All four of them had been former employees of Cyberspeed and, save for Mr Marco Chan, were colleagues at Super Dragon Technology at the time of their testimony. Mr Joe Lai is the sole proprietor of the latter company. Mr Danny Ho is the brother of the applicant. The court has been provided with a transcript of the testimony of all four witnesses.\n14.\nUnsurprisingly, a considerable amount of evidence was adduced in evidence-in-chief of those witnesses by answers given to leading questions. Broadly speaking, that was done without issue being taken by counsel for the applicant. No doubt, that was because the evidence was not controversial. Where the evidence was controversial, counsel for the applicant objected readily.\n15.\nAn issue in the trial canvassed with some of the four witnesses was the nature of the business conducted at or the use made of premises of Cyberspeed at Kwai Chung, in particular whether or not any wholesale, rather than retail, business in computers was conducted at the premises.\n16.\nIn his evidence in chief, Mr Danny Ho, the warehouse supervisor of Cyberspeed said that nobody manned the Kwai Chung warehouse. He said that it was used, “to keep some laptop computer bags, laptop computer display shelves and miscellaneous items”. He agreed with the leading question that it was, “not a warehouse for computers”. However, he also said that Cyberspeed conducted a wholesale business, albeit that he was not involved himself. In cross-examination, it was asserted to him by counsel on behalf of the applicant that in his witness statement dated 12 November 2007 he had said of the Kwai Chung premises, “its main function was to put company’s goods, to store company’s goods, mostly hand-carry computers”. There followed an interchange with counsel\n[1]\n:\n“ A. I believe what I said in my witness statement was hand-carry computer bags.\nQ. No…do you want to read paragraph 2 of that statement of yours dated 12 November?”\n17.\nIt appears that thereafter the witness was provided with a copy of the statement and he was given an opportunity to read paragraph 2. However, counsel did not return to the issue of whether or not the statement asserted that hand-carry computers were stored at that warehouse, contenting himself with the witness’s agreement that he only visited the Kwai Chung warehouse rarely and that the items stored there were not his responsibility. He agreed that the wholesale side of the business was carried on by Mr Kenny Leung and that he was not involved. Also, Mr Danny Ho agreed with a series of leading questions asked at the end of cross-examination to the effect that his sister, the applicant, was not responsible for the day-to-day management of either the retail or wholesale business of Cyberspeed, its sales or purchases or negotiations with suppliers, customers or bankers.\n18.\nRe-examination by counsel for the prosecution began with a wholly unacceptable sarcastic comment\n[2]\n:\n“ Now, since you were so observant of the management of Cyberspeed Technology…\nMr Chang: I object to that question.\nQ. That is the sum total of your answer ..\nMr Chang: That is comment.\nCOURT: You can skip the first sentence, yes.\nMr Iu: All right.”\n19.\nNext, Mr Danny Ho said that Mr Kenny Leung was responsible for looking after the stock of the wholesale business. That evidence produced a barrage of hostile questions from counsel for the prosecution\n[3]\n:\n“ Why? What was the reason as you saw it? Why was it that you were required to look after the stocks for retail and he did not employ anybody to look after the stocks for wholesale but he would look after it personally?”\nIn the absence of the jury, the judge overruled counsel for the applicant’s objection that counsel for the prosecution was cross-examining his own witness. Counsel for the prosecution continued his line of questioning before the jury\n[4]\n:\n“ Q. …I was dealing with the stocks for the wholesale. You said there was wholesale. Now, you said Kenny Leung looked after the stocks himself.\nA. Yes\nQ. Now, you said he was a very busy man, right?\nA. Yes.\nQ. Right. Now, in the warehouse, that was yourself and three other staff.\nA. Yes.\nQ. Can you think of any reason why Kenny Leung would not appoint one of the four of you to help him or engage another person…\nMr Chang: I object to that question. It amounts to cross-examination of his own witness.\nCOURT: Allow. Thank you\nQ. Can you think of any reason why he wouldn’t employ another one or delegate it to you or one of the four of you to do that?\nA. I don’t know.”\n20.\nCounsel for the prosecution questioned the witness in a similar vein in respect of the role of the applicant in the company\n[5]\n:\n“ Q. Did you know that your sister signed cheques for Cyberspeed Technology?\nA. No, I don’t know.\nQ. I see. You don’t know. Did you know that your sister is one of the signatories to the Cyberspeed cheque accounts?\nA. No, I don’t know.\nQ. Do you know that your sister employed people, employed staff working for Cyberspeed Technology? Did you know that?\nA. I don’t know either.\nQ. You don’t know. I see. Did you know that the office staff would turn to her when there was an accounting problem? Did you know that?\nMr Chang: That’s a leading question, putting words into the witnesses mouth, and I apologise.\nMr Iu: I’ll rephrase it. Alright. There’s no argument.”\n21.\nThat pattern of posing leading questions to the witness had been employed by counsel for the prosecution, without objection, in eliciting evidence-in-chief from the witness in respect of the applicant\n[6]\n:\n“ Q. Did you know that she was officially the Financial Controller of Cyberspeed Technology at Hua Chiao?\nA. I don’t know.\nQ. Did you know that she looked after the accounts or the accounting matters of Cyberspeed Technology at Hua Chiao?\nA. I don’t know.”\n22.\nAlthough counsel for the prosecution was deflected in pursuing that pattern of impermissible questioning on that occasion, it was soon resumed\n[7]\n:\n“ Q. ...Did you know that bankers sometimes came to the offices of Cyberspeed Technology and would speak to Kenny Leung? Did you know that?\nA. Yes, I know.\nQ. Did you know that sometimes Wendy, sister Wendy also took part in those discussions?\nMr Chang: I object to that question, and that is not in accordance with the material on hand, and that is also a leading question, putting words into the witness’ mouth.\nCOURT: Thank you. Allow.\nQ. Did you know that?\nA. I don’t know.\nQ. Or vice versa, put it this way, sometimes your sister and your brother-in-law would go to the banks and talk to the bankers, vice versa.\nMr Chang: I object to that again, putting words into the witness’ mouth.\nCOURT: “Do you know?” That is the question.\nMr Iu: Yes.\nQ. Do you know that sometimes your..\nCOURT: Yes or no?\nA. I don’t know.”\n23.\nCounsel for the prosecution then embarked on traversing the assertion made by counsel for the applicant to Mr Danny Ho that he had said in an out-of-court statement that the main function of the Kwai Chung warehouse was, “to store company’s goods, mostly hand-carry computers.” He did so by the extraordinary device of simply reading out to Mr Danny Ho passages in another statement made shortly after the statement in respect of which he had been questioned in cross-examination and inviting the witness to confirm that the questions and answers were as read out and that the answers were correct to the best of his recollection at the time the statement was made. No objection was taken and the court did not intervene, notwithstanding the fact that the witness had in effect denied making the statement asserted by counsel for the applicant, who had not persisted in his attempt to have the witness confirm that the statement was inconsistent with his oral testimony. In the result, the assertion by counsel for the applicant to the witness was just that, a bare assertion, not supported by evidence. Nevertheless, counsel for the prosecution embarked in questioning his own witness in re-examination in the following fashion\n[8]\n:\n“ Q. Could you now look at Question 2 and Answer No. 2 in that statement? Does the question read like this: “Did the company have any other stores for goods in the time it was in business at Hua Chiao Commercial Building, Nathan Road, Mongkok?” That was the question the police asked of you.\nA. Yes.\nQ. And you answered the police like this: “As far as I know, besides the store at Hua Chiao, the company also leased a store once in an industrial building unit in Lam Tin Street, Kwai Chung, especially for holding parts and notebook computer covers.”\nA. Yes.\nQ. And then you go on to say this: “However, no notebook computers were kept at the store because it was not manned.” “It was not manned.”\nA. Yes.\nQ. Lastly, you said, “My workmates and I went to the store to draw stocks only when required.”\nA. Yes.\nQ. That was your answer.\nA. Yes.\nQ. Was that a correct answer to the best of your recollection at the time?\nA. Yes.\nQ. Finally, in the next question, Question No. 3, you were asked this question: “Did the suppliers deliver notebook computers to the store in Kwai Chung?” That was the question put to you.\nA. Yes.\nQ. And your answer was no.\nA. That’s right.\nQ. That was a correct answer at the time to the best of your recollection.\nA. Yes.”\n24.\nIt is apparent from an interchange between counsel during cross-examination on behalf of the applicant of Mr Joe Lai, the manager of Cyberspeed, which required the intervention of the court, that counsel for the prosecution failed to conduct himself in the manner appropriate to that role:\n[9]\n“ Q. Did you understand Mr Tsoi to be the company’s employee?\nA. I am not sure.\nQ. He helped Kenny Leung in wholesale business, as you said.\nA. Yes, but I don’t know in what way Kenny employed him, the form of recruitment, I don’t know.\nQ. His work was delivery, transportation of goods, he’s a driver.\nMR IU: No, I think the proper question or the fair question is, “Do you know how he worked?”\nMR CHANG: That’s my way of asking.\nMR IU: No, it’s not your way of asking.\nCOURT: Stop.\nMR IU: Sorry.”\n25.\nThe context in which the interchange occurred concerned the evidence of Mr Joe Lai as to the business conducted at or the use made of premises of Cyberspeed at Kwai Chung, in particular whether or not any wholesale, rather than retail, business was conducted at the premises. In cross-examination, Mr Joe Lai testified that he had encountered a Mr Tsoi at the Kwai Chung premises and understood that he had something to do with a wholesale business in notebook computers of Mr Kenny Leung.\n26.\nThe question posed by counsel for the applicant was unobjectionable. In any event, it was no business of counsel for the prosecution to formulate the question he wished the witness to be asked. His intervention was uncalled for and rude to boot. It ought never to have happened. Fortunately, decisive judicial intervention brought the matter to a close eliciting a thoroughly merited appropriate apology from counsel for the prosecution.\n27.\nIn re-examination of that witness, counsel for the prosecution re-visited the issue of the operation of a wholesale business at the Kwai Chung warehouse. Again, he did so in a manner inappropriate to questioning a prosecution witness:\n“ Q. Now, if the wholesale, as you understood it, that was taking place at Kwai Chung, you know why there was only one staff, Mr Tsoi, doing a.. one-man job?\nA. I don’t know why, neither do I know how it was operated.\nQ. You told this court in the beginning of your examination that the thrust of the business of Cyberspeed was retail throughout the years. Remember that?\nA. Yes.\nQ. You stand by that answer?\nA. I only dealt with the retail business.\nQ. Come on, you’re on the senior management, you work there six, seven years, you know what the business was about, what was the thrust of the business.\nMr Chang: my Lord, I hate to rise again and to object, but I do appreciate if my learned friend will refrain from cross-examining his own witness.\nCOURT: Thank you. Noted. Allow.\nQ. Please.\nA. Mainly carry out retail business.”\n28.\nAs counsel for the applicant pointed out in their written submissions there were many other instances in which leading questions were put to prosecution witnesses by counsel for the prosecution in areas in which it was clear there was a dispute between the parties. However, in almost all of those instances no objection was taken on behalf of the applicant. The style of questioning of counsel for the prosecution created a strong impression that he suspected that the sentiments of those witnesses lay in the defence camp. Whilst that approach in a prosecutor is to be deprecated strongly, we are satisfied that in instances, cited earlier, in which impermissible questions were posed of witnesses to which objection was taken those witnesses held firm to their testimony and no damage was done to the defence case. Accordingly, we are satisfied that there is no merit in this ground of appeal.\nJudicial interruptions of testimony\n29.\nNeedless to say, there were interventions from time to time from the judge in the course of the testimony of the four prosecution witnesses highlighted on behalf of the applicant. Counsel has not been able to point to any interruption which was in any way inappropriate. By contrast, the judge’s interruption at the end of the examination-in-chief of Mr Kenny Leung was uncalled for and inappropriate.\n30.\nThere was no issue that the documentary and computer records of Cyberspace were not available to the police when they made their investigation. Mr Danny Ho testified that in September 2007, at the request of Mr Kenny Leung, he had arranged for 80 to 100 boxes of documentation to be removed from the offices of Cyberspeed and taken to a 20 tonne lorry in a scrapyard in the New Territories where they were stored. Ms Ann Ng testified that on 18 September 2007 she had accompanied Mr Kenny Leung to that scrapyard in order to retrieve some of that documentation. However, they found no lorry in the scrapyard and were unable to retrieve any documentation. At Mr Kenny Leung’s behest she reported the loss to the police that day. Similarly, there was no dispute that the hard disks on the computers of Cyberspeed were damaged or missing.\n31.\nIn the context of Mr Kenny Leung’s evidence of the movement for storage of the documentary records of Cyberspeed from the company’s offices to the lorry in the scrapyard in the New Territories and the subsequent attempts to retrieve them, the following interchange ensued\n[10]\n:\n“ COURT: Well, straight to the question, please.\nMR CHANG: Yes.\nCOURT: What happened?\nQ. Did you ‑‑ did you type out a list of things to be retrieved?\nA. Yes.\nQ. What documents did you need at that time? Why did you need those documents?\nCOURT: Why did you need first?\nMR CHANG: Yes.\nCOURT: The restructuring company wished to have those documents. Yes.\nA. Yes.\nQ. Now, look at page 25 which is the police report dated 18 September, which contained a list of 19 company names in respect of which a documents of lost report was filed.\nA. Yes.\nCOURT:\nWere those documents really lost? Really?\nA. The documents are put away for storage by Danny Ho were lost.\nCOURT:\nThey were not caused to be lost.\nINTERPRETER: Sorry, I don’t understand.\nCOURT:\nThey\n[\nwere\n]\nnot made to disappear. They were genuinely lost.\nA. Genuinely lost.\nCOURT: Thank you. So as the hard disk within the company’s computers. Hard disks.\nMR CHANG: Server.\nCOURT: Hard disk.\nMR CHANG: Hard disk.\nCOURT: Hard disk, within office computer, desktop. You see, we have heard evidence that they were either removed or damaged. Office, Mr Leung. Office. Office computers. Office computers.\nA. Now I’m telling you why...\nCOURT: No. Office computers.\nQ. Used in the office.\nCOURT: The computers used in your office.\nQ. Used by Karen Lee, used by Ann Ng, used by you, those computers.\nA. Yes.\nCOURT: Why were those hard disks either damaged or removed?\nA. I don’t know. I was not the last person to deal with them. It was engineering staff who dealt with it.\nCOURT: Can you think of any reason why they would do such things?\nA. Maybe apart from contacting me the liquidator, Alvan Liu, also contacted my secretary or the repair staff. Maybe he said if the data will not be used after liquidation the hard disk should be removed because those hardware would be sold later. The data would be lost. So I remember that he talked to me about that then I told him to talk to my secretary who arranged somebody to deal with it. That’s what I remember about this matter.\nCOURT: Without consulting you? Without asking you to look into what’s inside the hard disk?\nA. He did not ask me further.\nCOURT: You see, at that stage you were still hoping for restructuring or second creditors’ meetings. You know, information inside computer would still be of some assistance to you.\nA. It was not at that time. I saw that before the first creditors’ meetings they’d dealt with the computers. Computers were returned from the shops to the of course. They were put together with other computers in the office. I saw them do it before the first creditors’ meeting. Many equipments had already been put in the meeting room.” [Italics added.]\n32.\nClearly, the judge evinced an obvious suspicion that the documentary and computer records of Cyberspeed had been deliberately destroyed, the clear inference being that Mr Kenny Leung was directly or indirectly responsible for that happening. In due course, that was the suggestion put to Mr Kenny Leung in cross-examination by counsel for the prosecution. At that time, the judge returned to the issue asking the witness\n[11]\n:\n“So the destruction of hard disc, the disappearance of the server as well as the documents they were simply coincidence?”\n33.\nIn asking Mr Kenny Leung whether the documents had really been lost and in asking him if, in fact, they had been “caused” to be lost, the judge was trespassing onto the remit of counsel for the prosecution. He ought not to have asked those questions. They were questions for counsel for the prosecution.\n34.\nClearly, the line of questioning by the judge went primarily to the ambit of Mr Kenny Leung’s admitted criminality. He accepted that he was responsible for practising fraud on each of the 14 banks by presenting them with applications for the grant of invoices financing in respect of sham transactions to the extent of 60 to 70% of the purported transactions with Ming Fai. The questions asked by the judge, put directly in due course by counsel for the prosecution, went to the issue of whether or not Mr Kenny Leung was involved in covering up his crimes by having the relevant company records destroyed. Whilst it was the prosecution case that the applicant was a party to the frauds, it was never suggested that she was in any way a party to the destruction of the relevant company records. There was no evidence of that at all, as is apparent from the judge’s recitation of the evidence relevant to that issue in his summing up\n[12]\n.\n35.\nInsofar as the judge’s questioning might have impacted on the general credibility of Mr Kenny Leung, it is to be noted that not only did he admit in testimony that he had practiced fraud on the 14 banks but also be accepted that in his own trial he had lied in his testimony to the jury in testifying that the transactions were genuine.\n36.\nIn the result, whilst we are satisfied that the judge ought not to have posed the impugned questions, that did not viewed in context of his conduct of the proceedings as a wholeconstitute a material irregularity.\nSeparate consideration of each count\n37.\nIn order better to understand the context of the judge’s directions to the jury in respect of the need to consider each count separately, the hearing of 18 June 2013 was adjourned, so that the court could have the benefit of a transcript of the Opening and Closing speeches of counsel for the prosecution at trial and of the Closing speech of counsel for the applicant. It is clear from the speeches that counsel for the prosecution, notwithstanding the fact that there were 14 counts of fraud on the indictment, put its case on the basis that there was one underlying “fraudulent scheme”\n[13]\nin which the applicant was a party. It was the prosecution case that the applicant was a party to the arrangement of the banking facilities, in which Ming Fai was named as a supplier of computers to Cyberspeed\n[14]\n, pursuant to which the banks provided funding in the applications reflected in the 14 counts, in which Ming Fai was named as a supplier of computers to Cyberspeed. Further, it was contended that the applicant knew that Ming Fai was not a supplier of computers to Cyberspeed. It did not deal in computers at all\n[15]\n. On the prosecution case, that obtained throughout in respect of Ming Fai, notwithstanding the fact that none of that behaviour was the subject of charges in the period mid-2004 to December 2006\n[16]\n.\n38.\nThere is no dispute that the judge gave the jury the standard direction that they should consider each count on the indictment separately. He said\n[17]\n:\n“ You must consider the case against and for the defendant on each count separately.”\n39.\nThen, the judge went on to give the direction envisaged by footnote 5 of Specimen Direction 3 of the Judicial Studies Board’s Specimen Directions, namely:\n“ Of course, that does not mean that you must consider each count in isolation from the other counts. There is quite a lot of common ground between the different counts on this indictment, because they cover a course of business dealings in the business over a significant period and there are common features between all these different counts. You are entitled to use your decision in relation to the facts of one count to assist you in reaching a conclusion on the facts of another count.”\n40.\nAt an early stage in his directions to the jury the judge identified\n[18]\nas one of the issues between the prosecution and defence:\n“ whether the defendant had the necessary knowledge, intention and participation in defrauding the banks.”\n41.\nSubsequently, the judge gave the jury directions in respect of the issue of joint responsibility\n[19]\n:\n“ The prosecution case is that the defendant jointly committed the offence with Kenny and Hui Po Keung in all counts. … Where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are in it together as part of a joint plan or agreement to commit it, they are each guilty. The words “plan” and “agreement” do not mean there has to be any formality about it. An agreement to commit an offence may arise out of the course of conduct of two or more people….From their conduct you may be able to infer there is a plan or agreement. An agreement can be inferred from acting together.\nThe essence of joint responsibility for a criminal offence is that each person shared the intention to commit the offence and took some part in it, however great or small, so as to achieve that aim.\nYour approach to this case should therefore be as follows: if you are satisfied that the offence of fraud was committed, and if, looking at the case of the defendant, you are sure that with the intention to commit the offence, she took some part in it, then she is guilty of the offence in question.”\n42.\nThen, the judge went on to describe to the jury how the prosecution put its case against the applicant\n[20]\n:\n“ …the defendant, being the financial controller, director and person in charge of the accounting department of Cyberspeed Technology:\n(i) knowing that there existed no genuine goods in these 301 transactions;\n(ii) knowing that false invoices would be used by her husband to obtain invoice financing; and\n(iii) knowing that false invoices would be relied on by the bank;\ntook part in applying and signing banking facilities, executing personal guarantees and transferring moneys\n.” [Italics added.]\n43.\nLater in the summing up, the judge revisited the twin issues of the applicant’s knowledge of the perpetration of the fraud on the various banks and her acts of participation in the frauds\n[21]\n:\n“ At the beginning of my summing-up, I have told you the essence of joint responsibility for a criminal offence is that each person shared the intention to commit the offence and took some part in it, however great or small, so as to achieve that aim.\nPutting that into the context of this case, it means the prosecution have to make you sure that the defendant, knowing that there existed no genuine goods in these 301 transactions or some of these 301 transactions, knowing that invoices produced to the banks were false and would be relied upon, she took some part in it.”\n44.\nOf the evidence relevant to those issues, having reminded the jury that the applicant and her husband Mr Kenny Leung were shareholders and directors of all the relevant companies, except Sofmap, the judge said:\n“ She could also operate all the corporate bank accounts singly. In addition to that, Wendy also had internet access to Cyberspeed Technology’s bank accounts in DBS and BEA since 2004. She could see all invoice finance transactions, including those of Ming Fai, on the computer screen in respect of the DBS account.\nThe prosecution say the defendant had knowledge about invoice financing. Between 2004 and 2007, the defendant signed on many, many banking facilities letters, corporate resolutions, authorising the granting of such facilities. The prosecution say after the granting of this invoice finance facilities, Kenny and Wendy started to purchase a large number of properties. The prosecution say by 2007, when Cyberspeed Technology had difficulty in paying their staffs, when Wendy had to move to a smaller house, the fact that the influx of 153 million could not have escaped her attention. Furthermore, the defendant continued to participate in the signing of letters of guarantee and banking facilities letters in 2007, and as late as April 2007. The last banking facilities letter that the defendant put her signature on was the Citic Ka Wah Bank facilities letter. That was done on 24 April 2007.\nThe prosecution say she was a real financial controller of Cyberspeed Technology. Between 2004 and 2007 the defendant claimed herself to be financial controller on tax returns. It was admitted in paragraph 62 of the Admitted Facts that at different places and times, she held herself out as financial controller.\nThe prosecution say she was responsible for the accounting department. I mentioned this morning about the bankers’ evidence. I do not want to repeat myself here, but PW19, Mr Man, of Bank of Communication; PW20, Miss Tam, of ICBC; PW29, Mr Lui Man-fai of Fubon; PW22, Mr Leung Ping-shun of DBS; PW31, Mr Li Wai-nin, Edwin, of PT Bank told you all about that, that they all thought that the defendant was responsible for financial matters or accounting matters.\nThe prosecution say looking from the monetary aspects, Wendy could not be involved only superficially in the company’s financial affairs. These monetary aspects include her interest in properties either personal or corporate, her interest in fixed deposits, her liability in mortgage repayment, her liability in executing unlimited personal guarantees.\nThe prosecution say the defendant had personal knowledge about Ming Fai’s business nature. Ming Fai was no more than just a decorator for Cyberspeed Technology’s retail shop and office. Ming Fai could not be a supplier of any computer or computer-related accessories to Cyberspeed Technology. She certainly should know the business of her sister’s husband.\nThe prosecution also say the defendant’s silence when contents of the banking facilities letters were read to her indicate her knowledge throughout. She did not raise any questions to the bankers about Ming Fai.”\n45.\nThere is no dispute that the judge did not condescend to identifying the specific evidence available on each of the counts, contrasting and comparing the evidence on different counts. In respect of the evidence of the applicant’s role in securing and renewing invoice financing facilities with the various banks, as noted above, the judge dealt with matters generally, reminding the jury that\n[22]\n:\n“ Between 2004 and 2007 the defendant signed on many, many banking facilities letters, corporate resolutions, authorising the granting of such facilities.”\n46.\nEarlier in the summing up\n[23]\n, the judge had reminded the jury of the Admitted Facts, including Exhibit 46, which put into evidence banking documentation in respect of each of the banks alleged to have been defrauded in each of the 14 counts. Those documents included the applications for the grant/renewal of invoice financing bank facilities, together with lists stipulating Cyberspeed’s suppliers. The applicant was a signatory of those documents. Of significance, was the fact that the banks restricted invoice financing to stipulated suppliers. Ming Fai was named as one of their suppliers in the facilities arranged by the applicant with the banks.\n47.\nThe judge summarised the evidence of the banker witnesses who testified in respect of the invoice financing facilities granted by the 14 respective banks\n[24]\n:\n“ All the bank officers stated generally in their evidence that prior to the granting of the facilities, their banks required Cyberspeed Technology:\n(1) to submit a pre-approved list of suppliers;\n(2) not in any way related or connected to any of those suppliers;\n(3) if such relationship exists, to declare the relationship to the bank and to provide further evidence to substantiate the purchase;\n(4) to use the money advanced to finance genuine purchase of goods.”\n48.\nAs noted earlier, the judge reminded the jury\n[25]\nthat Ming Fai was a business run by her sister’s husband, which provided decoration services, including for Cyberspeed. As such, the issue was how it could be named as a supplier of computers and computer related accessories to Cyberspeed?\n49.\nThe judge made specific reference to the fact that the invoice financing facility with the Citic Ka Wah Bank, stipulating Ming Fai as a supplier, had been renewed by the applicant in April 2007. Of course, that was in the middle of the period stipulated in the counts on the indictment in which the offences were alleged to have been committed. However, the invoice financing facilities arranged with other banks had been granted prior to January 2007.\n50.\nIt follows that in identifying the three issues of knowledge said to be relevant to the applicant’s acts in applying for and signing bank facilities, namely knowing that “there existed no genuine goods in the 301 transactions” the judge was putting the cart before the horse. The bank facilities, save for Citic Ka Wah Bank, had been obtained before the impugned 301 transactions the subject of the counts. Clearly, the gravamen of the prosecution case was that the applicant secured the banking facilities naming Ming Fai as a supplier of computers knowing that not to be the case. Rather, she knew and intended that, as when required by their mutual cash-flow needs, her husband, Kenny Leung, would avail himself of that facility to obtain financing in respect of Ming Fai invoices.\n51.\nOf the evidence of the limits of the applicant’s participation in the execution of the frauds, the judge reminded the jury\n[26]\nof the defence case:\n“ The defence say between January 2007 and July 2007, she only signed 70 cheques out of 283 cheques issued by Cyberspeed Technology through five of the 14 lending banks. She did not sign on any of the 301 invoice finance applications. Her only involvement in these 301 transactions was signing on five cheques transferring 2.85 million out of a total of 153 million. You can do your calculation yourself. I did mine briefly: 2.85 out of 153. She drew salary because she needed to, otherwise the creditworthiness as a guarantor would be called into question. The salary given to her was no more than using for mortgage repayment.\nThe defence say that the defendant may have knowledge about banking facilities, may have knowledge about invoice financing, or may have knowledge about Ming Fai, that, however, did not mean the defendant had the necessary knowledge of and involvement in, Kenny’s fraudulent scheme.”\n52.\nNotwithstanding the judge’s inaccuracy, save in respect of the Citic Ka Wah Bank’s invoice financing facility, in stating that the applicant had signed bank invoice financing facilities knowing that there were no genuine goods in the 301 transactions, we are satisfied that it was readily apparent from the banking documentation before the jury that all the other banking facilities were granted before any of the 301 transactions. More accurately stated, the issue was whether she had done that knowing that any application for invoice financing in respect of Ming Fai, rather than the 301 transactions it turned out to be, would not involve genuine goods and would be false. We are satisfied that was obvious to the jury.\n53.\nAs was made clear to the jury, the primary issue was the applicant’s knowledge of the falsity of the stipulation in the information supplied by her to the banks in respect of invoice finance facilities that Ming Fai was a supplier of computers to Cyberspeed. If the applicant knew that to be false, what was the purpose of Ming Fai being so stipulated? As the judge had directed the jury, the issue was whether the applicant was a party in a joint enterprise with her husband and her brother-in-law where that had been her role, whereas it was her husband’s role to apply for the invoice financing funds in each purported transaction in which Ming Fai was the named beneficiary, as particularised in the counts in the indictment. At issue, was whether when she applied for the bank invoice financing facilities from the 14 banks she knew and intended that, as and when required by their mutual cash-flow needs, her husband, Kenny Leung, would avail himself of that facility to obtain funds in respect of Ming Fai invoices.\n54.\nWe are satisfied that that the summing up overall identified those issues and posed the appropriate questions for the jury.\nConclusion\n55.\nHaving regard to the matters addressed in paragraphs 26 to 31 of this judgment. We grant the application for leave to appeal against conviction but, treating the hearing of the application as the hearing of the appeal, we dismiss the appeal against conviction.\nSENTENCE\nReasons for sentence\n56.\nIn imposing sentence on the applicant, the judge acknowledged\n[27]\nthat her husband, Mr Kenny Leung was the “mastermind” behind the fraudulent scheme, in which he had made false invoices and purchase orders which he produced to banks in order to obtain invoice finance loans. He found that he had done so, “to save you and your husband’s ailing computer business and to ease the financial difficulty”. Of the applicant’s role, the judge to determine that she had assisted her husband\n[28]\n:\n“ in applying for banking facilities, signing on banking facility letters, company resolutions, exercising deeds of guarantee and transferring moneys.”\n57.\nThe judge said that the seriousness in the commission of these offences lay, first of all, in the fact that invoice financing requires a relationship of trust between the applicants for finance and the banks. He noted that that relationship of trust is vulnerable to the use of false documents. He said that the factors identified by the courts in cases involving letters of credit fraud of banks as relevant to sentence were relevant to sentence in this case. He identified the relevant factors stipulated in the judgment of this court in\nHKSAR v Dai Chi Wai\n[29]\nas being, “the amount of the loans, the number of banks, the period, the role of each defendant and the actual loss to the bank”.\n58.\nThe judge noted that in\nHKSAR v Law Chi-man, Kenneth\n[30]\nthis court had determined that a total sentence of 6 years’ imprisonment imposed on the appellant after trial in respect of three charges, two of conspiracy to fraud and one of fraud of three separate banks, involving total loans of $15.6 million and the loss of $9.8 million was not excessive.\n59.\nAs Stock JA, as he was then, noted\n[31]\nin the judgment of the court the applicant was not the prime mover behind the offences. The three charges involved loans of $4.5 million, $3.6 million and $7.5 million of which the respective losses were $2.5 million, $1.8 million and $5.5 million. The court quashed sentences of 6 years’ imprisonment imposed in respect of each of the charges and substituted sentences of 4 years’ imprisonment. However, it ordered that two years of sentence of imprisonment imposed in respect of Charge 3 be served consecutively to the sentences of imprisonment imposed in respect of the other charges. Accordingly, the total sentence of imprisonment imposed on the appellant remained 6 years’ imprisonment.\n60.\nFinally, the judge referred to the judgment of this court in the\nHKSAR v Lee Kwok Yun & Others\n[32]\n. He noted that this court determined appropriate a total sentence of 6 years’ imprisonment imposed upon the applicant after he had pleaded guilty. There, the applicant pleaded guilty to 18 counts of false accounting, concerning letters of credit related to goods which did not exist in which the banks sustained a total loss of US$11.4 million.\n61.\nOf the circumstances of the commission of this case, the judge noted that the loans obtained from the banks in total amounted to $153 million, with an outstanding loss of $21.4 million. Further, that those monies have been obtained by way of 301 applications in a period of just over six months. He noted that Citic Ka Wah Bank suffered a loss of $6.8 million having advanced a total of $17.5 million (Count 3), whereas Industrial and Commercial Bank of China sustained a loss of $6.4 million having advanced a total of $25.7 million (Count 9).\nSentence\n62.\nIn sentencing the applicant, the judge acknowledged that the applicant had played a “slightly lesser role” and imposed sentences of 4 years’ imprisonment in respect of each of Counts 3 and 9 and three years’ imprisonment in respect of each of the other 12 counts. Then, the judge ordered that 3 months’ imprisonment imposed in respect of counts 1 to 8 and counts 10 to 14 be served consecutively to the sentence of imprisonment imposed in respect of Count 9. Accordingly, the total sentence of imprisonment imposed upon the applicant was 7 years and 3 months.\nGROUNDS OF APPEAL AGAINST SENTENCE\n63.\nMr Kwok submitted that the overall sentence of 7 years and 3 months’ imprisonment imposed upon the applicant was manifestly excessive. He suggested that the judge had placed inadequate weight on mitigating factors, including:\n(i) the applicant had committed the offences because her husband’s business had encountered financial difficulties and her role culpability was less than that of her husband; and\n(ii) the loss suffered by the banks of around $21 million was far less than the aggregate amount of loans obtained.\n64.\nNext, it was submitted that the judge erred in sentencing the applicant to 4 years’ imprisonment in respect of counts 3 and 9, given that the respective losses were $6.4 million and $6.8 million. Further, given that 6 out of the 12 banks involved in the other counts sustained no loss at all and the largest loss was only $3.2 million, the sentences of 3 years’ imprisonment imposed in respect of the other counts was excessive.\nA CONSIDERATION OF THE SUBMISSIONS\n65.\nIn\nHKSAR v Hui Po Keung and Leung Chi Keung, Kenny\n[33]\nthis court, differently constituted, was concerned,\ninter-alia\n, with the sentences of imprisonment imposed by the judge upon the applicant’s husband and her brother-in-law after their convictions in the first trial, of the offences of which the applicant was convicted in the re-trial. Determining Kenny Leung to have been the “mastermind” of the fraudulent scheme and Hui Po Keung to have played a lesser role the judge had imposed a total sentence of 8 years and 3 months’ imprisonment on the former and 7 years and 3 months’ imprisonment on the latter. Having regard to the aggravating features of the commission of the offences the subject of Counts 3 and 9, the judge sentenced Kenny Leung and Hui Po Keung to 5 years and 4 years’ imprisonment respectively for each count. For the other 12 counts, the judge sentenced Kenny Leung to 3 years’ imprisonment on each count and Hui Po Keung to 2 years’ imprisonment on each count.\n66.\nMr Kwok, who appeared in that appeal for Hui Po Keung, advanced arguments, some of which are similar to those advanced on behalf of the applicant in this case. The court rejected the submission that the sentences imposed in respect of Counts 3 and 9 were excessive, noting\n[34]\n:\n“ In Count 3, no fewer than 46 false applications were made to the Industrial and Commercial Bank of China over the period 2 January to 6 July 2007 resulting in total loans of $25,721,989, of which $6,443,718 was lost to the bank. In Count 9, no fewer than 33 false applications were made to Citic Ka Wah Bank over the period 11 January to 5 July 2007 resulting in total loans of $17,518,242, of which $6,804,251 was lost to the bank.”\n67.\nHowever, the court did accept that there was merit in the submission that in imposing the same sentences for each of the counts, other than Count 3 and Count 9, the judge failed to reflect appropriately the different aggravating factors obtaining in the commission of the offences. Of Count 4, the court noted\n[35]\nthat it concerned only three applications in the period 3 to 12 January 2007, as a result of which only $1,572,020 was lent, but nothing lost to the bank. In the result, the court quashed the sentences imposed on that count and substituted sentences of 3 years’ imprisonment for Kenny Leung and 2 years imprisonment for Hui Po Keung.\n68.\nHaving regard to the fact that, “not only was the 2\nnd\napplicant the mastermind of the fraudulent scheme but also its primary beneficiary” and noting the extent and duration of the fraudulent scheme and the loss to the banks, the court determined that the sentence imposed on Kenny Leung was “entirely appropriate”. By contrast, the court concluded that, having regard to the different roles and the benefits received, the sentence imposed on Hui Po Keung was excessive. The court quashed the order that 3 months of each of the sentences imposed in respect of Counts 4, 6 to 9 be served consecutively to the sentence of 4 years’ imprisonment imposed in respect of count 9. In the result, the total sentence of imprisonment imposed upon Hui Po Keung was 6 years.\n69.\nWe are satisfied that the applicant’s culpability fell between the culpability of her husband, Kenny Leung, and that of her brother-in-law, Hui Po Keung. The latter’s benefit from his participation in the fraudulent scheme was only 0.2% of the $153 million obtained from the banks. By contrast, the applicant and Kenny Leung shared the benefits flowing from the frauds. Further, we are satisfied that the total sentence of 7 years and 3 months’ imprisonment imposed upon the applicant was entirely appropriate.\nConclusion\n70.\nFor the reasons set out earlier, we allow the application for leave to appeal against sentence and, treating the hearing of the application as the hearing of the appeal, allow the appeal in respect of Count 4, which sentence we quash imposing in its place a sentence of 2 years’ imprisonment. We do not disturb any of the other orders. Accordingly, the total sentence of imprisonment imposed on the applicant is 7 years and 3 months.\n(Frank Stock)\nVice President\n(Michael Lunn)\nJustice of Appeal\n(Judianna Barnes)\nJudge of the Court of First Instance\nMr David Leung, DDPP(Ag) and Mr Felix Tam, PP, of the Department of Justice, for the respondent\nMr Eric T M Kwok, SC and Mr Tony C Y Li, instructed by Cham & Co, for the applicant\n[1]\nAppeal Bundle, page 179 O - Q.\n[2]\nAppeal Bundle, page 186 O.\n[3]\nAppeal Bundle, page 186 U.\n[4]\nAppeal Bundle, pages 188 Q - 189 D.\n[5]\nAppeal Bundle, page 190 L - R.\n[6]\nAppeal Bundle, page 177 B - D.\n[7]\nAppeal Bundle, page 191 J - U.\n[8]\nAppeal Bundle, pages 189 P - 190 D.\n[9]\nAppeal Bundle, page 227 K - R.\n[10]\nAppeal Bundle, page 355 G - 356 U.\n[11]\nAppeal Bundle, page 422 J.\n[12]\nAppeal Bundle: the evidence of Mr Danny Ho, page 100 G - L; Ms Ann Ng, page 102 P - S; and Kenny Leung, page 119 J - P.\n[13]\nAppeal Bundle, page 454 O - P (Opening); page 503 E (Closing).\n[14]\nAppeal Bundle, page 497 P - R (Closing).\n[15]\nAppeal Bundle, page 440 J - M; page 455 M - O (Opening).\n[16]\nAppeal Bundle, page 503 E - H (Closing).\n[17]\nAppeal Bundle, page 84 Q.\n[18]\nAppeal Bundle, page 83 N - P.\n[19]\nAppeal Bundle, page 88 Q - 89 G.\n[20]\nAppeal Bundle, page 92 Q - 93 B.\n[21]\nAppeal Bundle, page 123 S - 124 E.\n[22]\nAppeal Bundle, page 124 M.\n[23]\nAppeal Bundle, page 94 F and following.\n[24]\nAppeal Bundle, page 107 L - Q.\n[25]\nAppeal Bundle, page 125 L.\n[26]\nAppeal Bundle, page 127 C - K.\n[27]\nAppeal Bundle, page 141.\n[28]\nAppeal Bundle, page 141 S - T.\n[29]\nHKSAR v Dai Chi Wai\n[2011] 4 HKLRD 534\nat page 537, paragraph 4.\n[30]\nHKSAR v Law Chi-man, Kenneth\n(CACC 356/2006; unreported, 7 September 2007).\n[31]\nHKSAR v Law Chi -man, Kenneth\n, paragraph 2.\n[32]\nHKSAR v Lee Kwok Yun & Others\n(CACC 117/2004; unreported, 18 July 2005).\n[33]\nHKSAR v Hui Po Keung and Leung Chi Keung, Kenny\n(CACC 240/2011; unreported, 29 November 2012).\n[34]\nHKSAR v Hui Po Keung and Leung Chi Keung, Kenny,\nparagraph 91.\n[35]\nHKSAR v Hui Po Keung and Leung Chi Keung, Kenny,\nparagraph 93.", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2012/CACC000042_2012.docx", + "file_name": "CACC000042_2012.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkca/2020_HKCA_649/CACV000441A_2019.txt b/en_cases_hkca/2020_HKCA_649/CACV000441A_2019.txt new file mode 100644 index 0000000..e0297af --- /dev/null +++ b/en_cases_hkca/2020_HKCA_649/CACV000441A_2019.txt @@ -0,0 +1,46 @@ + CACV 441/2019 + [2020] HKCA 649 + + + IN THE HIGH COURT OF THE + HONG KONG SPECIAL ADMINISTRATIVE REGION + COURT OF APPEAL + CIVIL APPEAL NO 441 OF 2019 + (ON APPEAL FROM HCAL NO 2619 OF 2018) + +_____________________ + +BETWEEN +_____________________ + +Before: Hon Yuen, Au JJA and Lisa Wong J in Court +Date of Written Submissions: 22 June 2020 +Date of Judgment: 6 August 2020 + +___________________ +J U D G M E N T +___________________ +Hon Yuen JA (giving the Judgment of the Court): +This court (Hon Yuen JA and Lisa Wong J) handed down judgment on 28 May 2020 ([2020] HKCA 370) dismissing the applicant’s appeal from an order of DHCJ K.W. Lung given on 16 September 2019 refusing her application for leave to apply for judicial review concerning her non-refoulement claim. The facts and issues in the appeal before the Court of Appeal, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here. +The applicant subsequently applied, by a Notice of Motion on 9 June 2020, for leave to appeal to the Court of Final Appeal. +On 10 June 2020, the Registrar of Civil Appeals directed that the applicant shall lodge her written submissions on or before 23 June 2020, and the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged her written submissions on 22 June 2020. We agree it is appropriate to determine this application on paper. +The applicant only stated the following in her Notice of Motion: +“1. In my appeal judgment the assessor did not consider my fear that why I would not return to my country of origin because of fully political dispute against current regime in my country, my claim is fully political conflict but not private dispute, for which my life would be at danger upon refoulement. +2. The assessment of my claim, the assessor gave their decision on based on paper, lack of inquiry about country of conditions, and did not [properly] consider under BOR 3 risk.” (sic) +In the applicant’s submissions, she mainly repeated her arguments which had been assessed by the Judge and this court in detail. She did not address the reasons in this court’s judgment at all. +Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that leave to appeal to the Court of Final Appeal may be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal. +No question of great general or public importance has been identified in the Notice of Motion. +Nor do we see any basis for granting leave on the “or otherwise” limb under section 22(1)(b). +By reason of the above, the Notice of Motion dated 9 June 2020 is dismissed. + + + + + + + + + +The applicant, unrepresented, acting in person. + + diff --git a/en_cases_hkca/2020_HKCA_649/case.json b/en_cases_hkca/2020_HKCA_649/case.json new file mode 100644 index 0000000..127f6b2 --- /dev/null +++ b/en_cases_hkca/2020_HKCA_649/case.json @@ -0,0 +1,26 @@ +{ + "Date": "6 Aug, 2020", + "Action No.": "CACV441/2019", + "Neutral Cit.": "[2020] HKCA 649", + "case_title": "AKTHER MOSAMMAT FATEMA V. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER", + "page_title": "AKTHER MOSAMMAT FATEMA V. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER | [2020] HKCA 649 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "CACV441/2019", + "link": "https://www.hklii.hk/en/appealhistory/CACV/2019/441" + } + ], + "case_url": "https://www.hklii.hk/en/cases/hkca/2020/649", + "neutral_cit": "[2020] HKCA 649", + "court_code": "HKCA", + "content": "CACV441A/2019 AKTHER MOSAMMAT FATEMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER\nCACV 441/2019\n[2020] HKCA 649\nIN THE HIGH COURT OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOURT OF APPEAL\nCIVIL APPEAL NO 441 OF 2019\n(ON APPEAL FROM HCAL NO 2619 OF 2018)\n_____________________\nBETWEEN\nAKTHER MOSAMMAT FATEMA\nApplicant\n(Appellant)\nand\nTORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE\n1\nst\nPutative Respondent\nand\nTHE DIRECTOR OF IMMIGRATION\n2\nnd\nPutative Respondent\n_____________________\nBefore: Hon Yuen, Au JJA and Lisa Wong J in Court\nDate of Written Submissions: 22 June 2020\nDate of Judgment: 6 August 2020\n___________________\nJ U D G M E N T\n___________________\nHon Yuen JA (giving the Judgment of the Court):\n1.\nThis court (Hon Yuen JA and Lisa Wong J) handed down judgment on 28 May 2020 (\n[2020] HKCA 370\n) dismissing the applicant’s appeal from an order of DHCJ K.W. Lung given on 16 September 2019 refusing her application for leave to apply for judicial review concerning her non-refoulement claim. The facts and issues in the appeal before the Court of Appeal, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.\n2.\nThe applicant subsequently applied, by a Notice of Motion on 9 June 2020, for leave to appeal to the Court of Final Appeal.\n3.\nOn 10 June 2020, the Registrar of Civil Appeals directed that the applicant shall lodge her written submissions on or before 23 June 2020, and the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged her written submissions on 22 June 2020. We agree it is appropriate to determine this application on paper.\n4.\nThe applicant only stated the following in her Notice of Motion:\n“1. In my appeal judgment the assessor did not consider my fear that why I would not return to my country of origin because of fully political dispute against current regime in my country, my claim is fully political conflict but not private dispute, for which my life would be at danger upon refoulement.\n2. The assessment of my claim, the assessor gave their decision on based on paper, lack of inquiry about country of conditions, and did not [properly] consider under BOR 3 risk.” (\nsic\n)\n5.\nIn the applicant’s submissions, she mainly repeated her arguments which had been assessed by the Judge and this court in detail. She did not address the reasons in this court’s judgment at all.\n6.\nSection 22\n(1)(b) of the\nHong Kong Court of Final Appeal Ordinance\n(\nCap. 484\n) provides that leave to appeal to the Court of Final Appeal may be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.\n7.\nNo question of great general or public importance has been identified in the Notice of Motion.\n8.\nNor do we see any basis for granting leave on the “or otherwise” limb under section 22(1)(b).\n9.\nBy reason of the above, the Notice of Motion dated 9 June 2020 is dismissed.\n(Maria Yuen)\n(Thomas Au)\n(Lisa Wong)\nJustice of Appeal\nJustice of Appeal\nJudge of the Court of First Instance\nThe applicant, unrepresented, acting in person.", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2019/CACV000441A_2019.docx", + "file_name": "CACV000441A_2019.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkcfa/2007_HKCFA_6/FAMC000002_2007.txt b/en_cases_hkcfa/2007_HKCFA_6/FAMC000002_2007.txt new file mode 100644 index 0000000..279f042 --- /dev/null +++ b/en_cases_hkcfa/2007_HKCFA_6/FAMC000002_2007.txt @@ -0,0 +1,46 @@ +FAMC No. 2 of 2007 + +IN THE COURT OF FINAL APPEAL OF THE +HONG KONG SPECIAL ADMINISTRATIVE REGION + +MISCELLANEOUS PROCEEDINGS NO. 2 OF 2007 (CRIMINAL) +(ON APPLICATION FOR LEAVE TO APPEAL +FROM CACC NO. 26 OF 2006) + +_____________________ + + +Between: + + +_____________________ + + + +Mr Justice Bokhary PJ: +The Court of Appeal’s judgment leaves the applicant with two convictions. One is of conspiracy to defraud (under Charge 2), and the other is of conspiracy to pervert the course of public justice (under Charge 3). The Court of Appeal certified the applicant’s first point, which is her point to the effect that the elements of the offence of conspiracy to defraud are insufficiently precise to satisfy the constitutional requirement of legal certainty. They refused to certify her remaining four points, namely points 2 to 5 which are the ones identified by these questions : +(2) Whether it is sufficient for the admission against A of evidence of acts and declarations by B in furtherance of a conspiracy, that there is prima facie proof that A has agreed with B to be party to that conspiracy. +(3) Whether it is necessary for a judge to direct himself in terms of the dangers of relying on the acts and declarations of co-conspirators where the person against whom the evidence has been admitted has no effective opportunity to cross examine in relation to that evidence. +(4) Whether on appeal from a professional judge, an appellate court is in law entitled to assume that an element of an offence as charged has been proved (Charge 2) or an important evidential matter has or has not been relied upon (Charge 3) in the absence of an express finding by the trial judge or alternatively notwithstanding an express finding that suggests the contrary. +Whether on appeal from a professional judge, an appellate court shall have regard to the findings of the trial judge and consider the merits of an appeal by reference to a proper construction of those findings. + +Shortly stated, the Court of Appeal’s reasons for refusing to certify points 2 to 5 are as follows. The context was so plain and straightforward that nothing turned on point 2. On the Court of Appeal’s view as to what evidence the trial judge had relied upon, point 3 did not arise. Point 4 did not arise because the Court of Appeal took the view that, contrary to the applicant’s contention, the trial judge did make the findings concerned. And point 5 was obvious, did not call for certification and merely went to a complaint that the Court of Appeal had erred in its analysis of the trial judge’s reasoning. + +What the applicant now asks to do can be summarised as follows. She asks us to : +grant her leave to appeal for the purpose of pursuing the point certified by the Court of Appeal; +certify points 2 to 4 and grant her leave to appeal for the purpose of pursuing them; +grant her leave to appeal on the “substantial and grave injustice” ground for the purpose of pursuing the substance of the complaint under point 4 if we do not certify that point; and +grant her leave to appeal on the “substantial and grave injustice” ground for the purpose of pursuing complaints that the trial judge had given insufficient reasons, that the Court of Appeal had wrongly resorted to a process of inference to interpret the reasons given by the trial judge and that the Court of Appeal had failed to have regard to certain findings of the trial judge which were relevant to their consideration of whether an inference drawn by the trial judge was warranted. + +We think that the Court of Appeal were right in refusing to certify the points which they refused to certify. And we see no basis for leave to appeal in this case on the “substantial and grave injustice” ground. + +As for the point which the Court of Appeal certified, we consider it appropriate to grant leave to appeal for the purpose of pursuing it. We extend time and grant the applicant leave to appeal to the Court of Final Appeal for the pursuing the certified point. + +This means that the applicant does not have leave to appeal against her conviction for conspiracy to pervert the course of public justice but has leave to appeal against her conviction for conspiracy to defraud, such appeal being limited to the question of whether the elements of the offence of conspiracy to defraud are sufficiently precise to satisfy the constitutional requirement of legal certainty. + + + + + +Ms Clare Montgomery QC and Ms Po Wing Kay (instructed by Messrs W M Lo & Co.) for the applicant +Mr Kevin P Zervos SC and Ms Winnie Ho (of the Department of Justice) for the respondent diff --git a/en_cases_hkcfa/2007_HKCFA_6/case.json b/en_cases_hkcfa/2007_HKCFA_6/case.json new file mode 100644 index 0000000..63abb09 --- /dev/null +++ b/en_cases_hkcfa/2007_HKCFA_6/case.json @@ -0,0 +1,26 @@ +{ + "Date": "5 Feb, 2007", + "Action No.": "FAMC2/2007", + "Neutral Cit.": "[2007] HKCFA 6", + "case_title": "MO YUK PING V. HKSAR", + "page_title": "MO YUK PING V. HKSAR | [2007] HKCFA 6 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "FAMC2/2007", + "link": "https://www.hklii.hk/en/appealhistory/FAMC/2007/2" + } + ], + "case_url": "https://www.hklii.hk/en/cases/hkcfa/2007/6", + "neutral_cit": "[2007] HKCFA 6", + "court_code": "HKCFA", + "content": "FAMC000002/2007 MO YUK PING v. HKSAR\nFAMC No. 2 of 2007\nIN THE COURT OF FINAL APPEAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nMISCELLANEOUS PROCEEDINGS NO. 2 OF 2007 (CRIMINAL)\n(ON APPLICATION FOR LEAVE TO APPEAL\nFROM CACC NO. 26 OF 2006)\n_____________________\nBetween:\nMO YUK PING\nApplicant\nand\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nRespondent\n_____________________\nAppeal Committee:\nChief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ\nDate of Hearing:\n5 February 2007\nDate of Determination:\n5 February 2007\n__________________________________\nD E T E R M I N A T I O N\n__________________________________\nMr Justice Bokhary PJ:\n1.\nThe Court of Appeal’s judgment leaves the applicant with two convictions. One is of conspiracy to defraud (under Charge 2), and the other is of conspiracy to pervert the course of public justice (under Charge 3). The Court of Appeal certified the applicant’s first point, which is her point to the effect that the elements of the offence of conspiracy to defraud are insufficiently precise to satisfy the constitutional requirement of legal certainty. They refused to certify her remaining four points, namely points 2 to 5 which are the ones identified by these questions :\n(2)\nWhether it is sufficient for the admission against A of evidence of acts and declarations by B in furtherance of a conspiracy, that there is prima facie proof that A has agreed with B to be party to that conspiracy.\n(3)\nWhether it is necessary for a judge to direct himself in terms of the dangers of relying on the acts and declarations of co-conspirators where the person against whom the evidence has been admitted has no effective opportunity to cross examine in relation to that evidence.\n(4)\nWhether on appeal from a professional judge, an appellate court is in law entitled to assume that an element of an offence as charged has been proved (Charge 2) or an important evidential matter has or has not been relied upon (Charge 3) in the absence of an express finding by the trial judge or alternatively notwithstanding an express finding that suggests the contrary.\n(5)\nWhether on appeal from a professional judge, an appellate court shall have regard to the findings of the trial judge and consider the merits of an appeal by reference to a proper construction of those findings.\n2.\nShortly stated, the Court of Appeal’s reasons for refusing to certify points 2 to 5 are as follows. The context was so plain and straightforward that nothing turned on point 2. On the Court of Appeal’s view as to what evidence the trial judge had relied upon, point 3 did not arise. Point 4 did not arise because the Court of Appeal took the view that, contrary to the applicant’s contention, the trial judge did make the findings concerned. And point 5 was obvious, did not call for certification and merely went to a complaint that the Court of Appeal had erred in its analysis of the trial judge’s reasoning.\n3.\nWhat the applicant now asks to do can be summarised as follows. She asks us to :\n(i)\ngrant her leave to appeal for the purpose of pursuing the point certified by the Court of Appeal;\n(ii)\ncertify points 2 to 4 and grant her leave to appeal for the purpose of pursuing them;\n(iii)\ngrant her leave to appeal on the “substantial and grave injustice” ground for the purpose of pursuing the substance of the complaint under point 4 if we do not certify that point; and\n(iv)\ngrant her leave to appeal on the “substantial and grave injustice” ground for the purpose of pursuing complaints that the trial judge had given insufficient reasons, that the Court of Appeal had wrongly resorted to a process of inference to interpret the reasons given by the trial judge and that the Court of Appeal had failed to have regard to certain findings of the trial judge which were relevant to their consideration of whether an inference drawn by the trial judge was warranted.\n4.\nWe think that the Court of Appeal were right in refusing to certify the points which they refused to certify. And we see no basis for leave to appeal in this case on the “substantial and grave injustice” ground.\n5.\nAs for the point which the Court of Appeal certified, we consider it appropriate to grant leave to appeal for the purpose of pursuing it. We extend time and grant the applicant leave to appeal to the Court of Final Appeal for the pursuing the certified point.\n6.\nThis means that the applicant does\nnot\nhave leave to appeal against her conviction for conspiracy to pervert the course of public justice but\nhas\nleave to appeal against her conviction for conspiracy to defraud, such appeal being limited to the question of whether the elements of the offence of conspiracy to defraud are sufficiently precise to satisfy the constitutional requirement of legal certainty.\n(Andrew Li)\nChief Justice\n(Kemal Bokhary)\nPermanent Judge\n(Patrick Chan)\nPermanent Judge\nMs Clare Montgomery QC and Ms Po Wing Kay (instructed by Messrs W M Lo & Co.) for the applicant\nMr Kevin P Zervos SC and Ms Winnie Ho (of the Department of Justice) for the respondent", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2007/FAMC000002_2007.doc", + "file_name": "FAMC000002_2007.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkcfa/2008_HKCFA_13/FACV000011_2007.txt b/en_cases_hkcfa/2008_HKCFA_13/FACV000011_2007.txt new file mode 100644 index 0000000..f42d4ed --- /dev/null +++ b/en_cases_hkcfa/2008_HKCFA_13/FACV000011_2007.txt @@ -0,0 +1,469 @@ +FACV No. 11 of 2007 + +IN THE COURT OF FINAL APPEAL OF THE +HONG KONG SPECIAL ADMINISTRATIVE REGION + +FINAL APPEAL NO. 11 OF 2007 (Civil) +(ON APPEAL FROM CACV No. 44 of 2006) +_______________________ + +Between: + + KENSLAND REALTY LIMITED Plaintiff + (in compulsory liquidation) (Appellant) + + - and - + + TAI, TANG & CHONG Defendant + (Respondent) +_______________________ + +Court: Mr Justice Bokhary PJ, Mr Justice Chan PJ, +Mr Justice Ribeiro PJ, Sir Noel Power NPJ and +Mr Justice McHugh NPJ +Date of Hearing: 9 January 2008 +Date of Judgment: 7 March 2008 +_______________________ + +J U D G M E N T +_______________________ + +Mr Justice Bokhary PJ and Sir Noel Power NPJ : +The Court has been shown a number of English decisions on s.14A of the Limitation Act 1980, which is the United Kingdom provision on which s.31 of the Limitation Ordinance, Cap.347, is modelled. We do not consider an exhaustive discussion of those decisions essential to the disposal of this relatively straightforward appeal. This is not to say that we have any quarrel with any of those decisions. Indeed we consider them helpful. Mr John Scott SC for Kensland has submitted that those decisions, or at least some of them, have put a gloss on the legislation concerned. As to that, we would say this. +Purposive construction … +Statutes of limitation seek to provide potential defendants with a measure of repose. They seek to do that without unduly curtailing the right of would-be plaintiffs to pursue their claims. So they always involve striking a balance between competing interests. The balance struck by way of any given limitation provision would reflect a legislative policy. We would not rule out the possibility of a limitation provision that is open to a constitutional challenge, for example, because it so favours defendants as to fall foul of the access to the courts clause of art.35 of the Basic Law. But subject to that possibility, which is always remote and certainly does not arise in the present case, there can be no doubt as to the judiciary’s duty when a limitation provision calls for construction. That duty is to construe such provision so as to promote its underlying legislative policy. Construing a provision of course involves more than reciting its terms. Considerably more is often needed, especially where there are substantial difficulties to be resolved in a purposive way. Putting a purposive construction on a provision is not to be equated with putting a gloss on it. +There is nothing unprecedented in the idea of purposive construction aimed at promoting underlying legislative policy. Look at what the Barons of the Exchequer said in Stradling v. Morgan (2 Eliz. I) 1 Plowden 199. They said (at p.205) that “the sages of the law … have ever been guided by the intent of the Legislature, which they have always taken according to the necessity of the matter, and according to that which is consonant to reason and good discretion”. The phraseology may be dated, but the idea is there. Then there is the statement which Chief Justice Abbott famously made in R v. Hall (1822) 1 B & C 123 at p.136 when giving the judgment of the Court of King’s Bench. He said that the meaning of a statutory provision “is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion, on which they are used, and the object that is intended to be attained”. That statement now bears the imprimatur of the Privy Council, for Lord Romilly MR cited it with approval in The “Lion” (1869) LR 2 PC 525 at p.530 in the course of delivering their Lordships’ advice. +… of statutes of limitation in particular +We move now from the general to the particular. It is well-known that statutes of limitation have been described as statutes of repose. That description was first made famous by Story J in Bell v. Morrison 26 US (1 Peters) 350 (1828) at p.360 when giving the judgment of the United States Supreme Court. It has been repeated in the House of Lords (by Lord Simon of Glaisdale in The Ampthill Peerage Case [1977] AC 547 at p.575H) and in this Court (by Chief Justice Li in Wong Tak Yue v. Kung Kwok Wai No.2 (1997-98) 1 HKCFAR 55 at p.67 D-E). What we wish to draw attention to in particular is Story J’s statement on construction. He said (at p.359) that the construction of a statute of limitation should “proceed upon principles … adapted to carry into effect the real objects of the statute”. +The case of Haward v. Fawcetts [2006] 1 WLR 682 has been made the subject-matter of a case commentary by Ms Janet O’Sullivan. That commentary is to be found in PRFN 2006, 22(2) 127. We will not conceal our admiration for the refreshing candour of Ms O’Sullivan’s observation at p.130 that “the words of the statute may require some bending when dealing with cases of negligent professional advice”. That is of course not to deny the desirability of legislation free from any need of such treatment. Hence the call at the conclusion of the commentary for legislative reform. But such reform is another day and somebody else’s work. Meanwhile the Court has the present case to deal with on current legislation. +Circumstances of the case +Turning to the circumstances of the case at hand, they are shortly stated as follows. On 13 January 2004 Kensland Realty Ltd (“Kensland”), now the appellant, commenced an action against its former solicitors Messrs Tai Tang & Chong (“TTC”), now the respondent. The action is for damages sustained as a result of acting on legal advice tendered to Kensland by TTC, which advice Kensland complains against as negligent. In striking-out proceedings taken out by TTC, the Court of Appeal (Rogers VP and Le Pichon JA) reversed the High Court (Deputy Judge Gill) and dismissed Kensland’s action as time-barred. Kensland now appeals to this Court, seeking the reinstatement of its action. +Kensland had entered into an agreement to sell certain shop premises to a company named Whale View Investment Ltd (“Whale View”). Since Kensland was selling as a confirmor, the agreement not surprisingly provided for payment of the balance of the purchase price by such cashier’s orders or cheques in favour of such persons as Kensland may direct. The agreement provided that completion was to take place between 10:00 am and 1:00 pm on 2 September 1997 and that time was of the essence. Whale View did not tender the balance of the purchase price until six minutes after the 1:00 pm deadline. But there was a question of whether the missing of that deadline was due to Kensland’s lateness in giving Whale View a split payment direction. Nevertheless Kensland treated the missing of the 1:00 pm deadline as a repudiatory breach on Whale View’s part, refused to complete and forfeited Whale View’s deposit of $8.25 million. According to Kensland, it took that course on TCC’s advice that such a course might result in Kensland being sued by Whale View for the return of its deposit but that such a suit’s chances of success would be very low. As it turned out, the suit succeeded. We will come to its details later. +Obviously out of time under s.4 +Where negligent advice gives rise to a cause of action, that cause of action accrues when the person who is given such advice acts on it. So the cause of action on which Kensland’s action against TTC is based would have accrued on 2 September 1997. As has been noted, that action was commenced more than six years after that date. Section 4 of the Limitation Ordinance provides that an action founded on simple contract or tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. Obviously therefore Kensland’s action against TTC is out of time under s.4. +Turning to s.31 +So the question becomes whether that action was commenced within the time allowed by the ameliorating effect of s.31 of the Limitation Ordinance. This section reads : +“(1) This section applies to any action for damages for negligence, other than one to which section 27 applies, where the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both +(a) the knowledge required for bringing an action for damages in respect of the relevant damage; and +(b) a right to bring such an action, +(referred to in this section as the ‘date of knowledge’) falls after the date on which the cause of action accrued. +(2) The period of limitation prescribed by section 4(1) in respect of actions founded on tort shall not apply to an action to which this section applies. +(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4). +(4) That period is either – +(a) 6 years from the date on which the cause of action accrued; or +(b) 3 years from the date of knowledge, if that period expires later than the period mentioned in paragraph (a). +(5) In subsection (1) ‘the knowledge required for bringing an action for damages in respect of the relevant damage’ means knowledge – +(a) of such facts about the damage in respect of which damages are claimed as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment; +(b) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; +(c) of the identity of the defendant; and +(d) if it is alleged that the act or omission was that of a person other than the defendant, of the identity of that person and the additional facts supporting the bringing of an action against the defendant. +(6) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (1). +(7) For the purposes of this section or section 33 a person’s knowledge includes knowledge which he might reasonably have been expected to acquire – +(a) from facts observable or ascertainable by him; or +(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek, +but a person shall not be taken by virtue of this subsection or section 33 to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.” +Reverting to the circumstances of the case +We now revert to the circumstances of the case. Relevant to the question of whether Kensland’s action against TCC is within time under s.31, this is what happened in consequence of Kensland’s refusal to complete. On the day following such refusal, Whale View took two steps. One was the commencement of an action against Kensland by a writ endorsed with a claim for, among other relief, specific performance and damages in addition to or in lieu of specific performance. The other was the registration of that action as a lis pendens (pending action) against the shop premises concerned, which step would so deter other purchasers as to block any attempt that Kensland might make to sell those premises to someone else. +Initially Whale View’s sought specific performance. But after the property market fell, as it had by November 1997, Whale View sought instead the return of its deposit and damages representing the profit which it would have made if the sale and purchase had been completed and it had then on-sold the shop premises within a few weeks of completion on 2 September 1997. +Whale View’s action against Kensland proceeded to trial in the High Court. It was dismissed by the High Court on 5 April 2000. The matter then went on appeal to the Court of Appeal, and that appeal succeeded. On 23 January 2001 the Court of Appeal entered judgment for Whale View against Kensland in the sum of $16.25 million (made up of a returned deposit of $8.25 million and damages of $8 million) with interest at the rate of 10.5% from the issue of the writ until the Court of Appeal’s judgment and with the costs of the action and of that appeal. Kensland then appealed to this Court. On 10 December 2001 this Court (by a judgment now reported at (2001) 4 HKCFAR 381) dismissed that appeal with costs nisi. +By 14 November 1997 if not before, Kensland realised that the fall in the property market had resulted in the shop premises becoming worth much less than the $55 million for which it had agreed to sell and Whale View had agreed to purchase those premises. That is attested by the fact that on that day Kensland sought counsel’s advice on whether it could successfully reverse course so as to hold Whale View to that sale and purchase by admitting Whale View’s claim. +It is also to be noted that by November 1997 Kensland had already been billed for $78,300 by way of costs incurred in defending Whale View action up to that time. +Knowledge +One sees the reference in s.31(1)(a) to “the knowledge required for bringing an action in respect of the relevant damage”. And one sees what s.31(5)(a) to (d) say as to what such knowledge means. Mr Scott submits that Kensland did not have such knowledge until this Court gave judgment on 10 December 2001 affirming the Court of Appeal’s decision to enter judgment for Whale View. Alternatively, Mr Scott submits that Kensland did not have such knowledge until, at the earliest, the Court of Appeal entered judgment for Whale View on 23 January 2001. For the reasons which we are about to state, we are unable to accept either of those submissions. +Among the decisions on s.14A of the Limitation Act 1980 which this Court was shown is that of the House of Lords in Haward v. Fawcetts (the case the subject-matter of the case commentary which we referred to earlier). It was a case of allegedly negligent advice. The advice was that of an accountant in reliance on which the claimant had acquired a controlling interest in a company. And the House of Lords was concerned with the question of knowledge in the s.14A sense on the part of the claimant. In regard to the degree of certainty required, Lord Nicholls of Birkenhead endorsed the guidance given by Lord Donaldson of Lymington MR in Halford v. Brookes [1991] 1 WLR 428 at p.443. Doing that, Lord Nicholls said (in para.9) that “knowledge … means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice, and collecting evidence”. +Lord Nicholls then turned to the degree of detail required, noting that questions as to that have mostly arisen in the context of the need for the claimant to know that the damage was attributable in whole or in the part to the act or omission which is alleged to constitute negligence. In para.10 he considered what had been said in Wilkinson v. Ancliff (BLT) Ltd [1986] 1 WLR 1352 at p.1365, Hendy v. Milton Keynes Health Authority [1992] 3 Med LR 114 at pp 117-118, Nash v. Eli Lilly & Co. [1993] 1 WLR 782 at pp 797-799, Spargo v. North Essex District Health Authority [1997] PIQR 235 at p.242 and Broadley v. Guy Clapham & Co. [1994] 4 All ER 439 at p.448. He concluded (in para.11) that “paraphrasing, time does not begin to run against a claimant until he knows that there is a real possibility his damage was caused by the act or omission in question”. +Statutory provisions are typically expressed in general terms which are sometimes far from happily worded. But they always have to be applied with a view to doing practical justice in real life situations. So they often call for construction, and the construction that they receive should be a purposive one. It is in the nature of purposive construction to give practical guidance for the application of a statutory provision according to its true meaning and effect. Giving such guidance is, in our view, precisely what Lord Nicholls did in Haward v. Fawcetts. +As to the language of our s.31 (modelled on the legislation with which the House of Lords was there concerned), one sees what subsection (5) says “knowledge” means. One sees what subsection (6) says about the irrelevance of knowledge that any acts or omission involve negligence. And one sees what subsection (7) says about knowledge which a person might reasonably have been expected to acquire. Lord Nicholls’s approach is, we think, amply accommodated by the language of the legislation read as a whole, in context and purposively. +Facts known and the knowledge to which they amounted +By the end of November 1997 Kensland obviously knew that acting on TTC’s advice had (i) prevented it from on-selling the shop premises quickly, (ii) exposed it to the drop in value which those premises had undergone, (iii) involved it in already considerable costs and (iv) left it facing a substantial and triable claim. +Knowing those facts must amount at least to knowing that there was a real possibility that it had suffered damage caused by TTC’s advice on which it had acted. +Although the agreement for sale and purchase provided for completion “between the hours of 10:00 am and 1:00 pm”, the correct split payment direction was not given until 11:48 am. And when it was eventually given, it was for nine cheques and complying with it involved eight cheques and two cashier’s orders. On Kensland’s case, the only thing which TTC warned that Whale View might sue for was the return of its deposit. There was no warning that TTC might sue for specific performance and damages in addition to or in lieu of specific performance. Nor was there any warning that Whale View might register its action as a lis pendens against the shop premises, effectively preventing Kensland from on-selling those premises to someone else. And, despite the lateness of the split payment direction, TTC advised that a suit by Whale View would have no more than a very low chance of success. +Those omissions were highly material in themselves. Moreover there was another dimension to them. As soon as it appeared that there was much advice that should have been given but had been omitted, it became natural to wonder about the accuracy of such advice as had been given. Rather like the thirteenth stroke of the clock that falsifies all that went before, the omissions called into question the accuracy of the advice which had been given. In this case the thirteenth stroke of the clock sounded loud and clear on the following day. +Time barred on any approach +By reason of the knowledge which Kensland had by the end of November 1997. The limitation period for its action against TTC having expired long before Kensland commenced it on 13 January 2004, that action is plainly time-barred. We have proceeded on the approach articulated by Lord Nicholls in Haward v. Fawcetts, but would reach the same conclusion on any of the approaches to be discerned from the speeches of the other Law Lords in that case. +For the purposes of our s.31, we would take the precaution of drawing attention to an observation which Lord Walker of Gestingthorpe made in para.56. This is that “[t]he wide range of claims to which section 14A may extend suggests that general observations made by the court in one type of case may not be directly apposite in a case of another type”. At the same time, we would point out that of the principles stated in Lord Nicholls’s speech, the ones which we have treated as the most significant come essentially from paras 10 and 11. And in para.80 Lord Walker described those principles – accurately in our view – as “settled”. +Result +In the result, we would dismiss this appeal with costs (the parties having accepted at the hearing that costs should follow the event). +Mr Justice Chan PJ: +I have had the advantage of reading the judgment of Mr Justice Ribeiro PJ in draft. I entirely agree with his detailed and comprehensive analysis of the provisions in s.31 of the Limitation Ordinance, Cap 347 and the case law relevant to these provisions. For the reasons he has given, I agree that this appeal should be dismissed with costs. +The purpose of having limitation provisions is to ensure on the one hand, that a defendant is not unduly vexed by stale claims to his disadvantage particularly when the relevant evidence has been lost and the memory of the witnesses has failed; and on the other hand, that a plaintiff is not unfairly prejudiced by a lack of knowledge of the relevant facts required to bring a claim until after it is time barred. This is what s.31 is aimed at achieving in relation to actions based on non-personal injury negligence. +As Mr Justice Ribeiro’s analysis amply demonstrates, the construction of that section and its application to the facts of a particular case is by no means an easy task. The reason is that this provision (closely following the English equivalent in s.14A of the Limitation Act 1980 as amended by the Latent Damage Act 1986), to quote the words of Ms Janet O’Sullivan in her helpful and enlightening article, Limitation, latent damage and solicitors’ negligence, “which was enacted primarily with claims for property damage in mind and based closely on the drafting of the parallel provisions for personal injury claims, is not easily applied to claims for economic loss arising from the alleged negligence of solicitors” at p.219 of Professional Negligence, Vol. 20 No. 4, 2004. This is evident from the increasing volume of jurisprudence purporting to apply this provision (or its equivalent) in professional negligence claims in England and Australia. No doubt, the legal and other professions here would also be anxious to have some clear guidance on how s.31 operates in practice. A legislative review of the relevant statutory provisions may well be necessary in future. +Whether a plaintiff can invoke s.31 is a question of mixed law and fact. This involves an examination of a host of issues, such as, what was the defendant’s act or omission complained of, what is the cause of action relied on, when did the cause of action accrue, what was the damage caused to the plaintiff, how much did the plaintiff know about these facts or ought he reasonably to have known about these facts, would a reasonable person having such knowledge or imputed knowledge consider the damage sufficiently serious to justify instituting proceedings for damages, when did the plaintiff first have actual or imputed knowledge of such facts, did the plaintiff know or ought he reasonably to have known that the damage was attributable in whole or in part to the defendant’s act or omission, and if so, when did he first have actual or imputed knowledge of this. Needless to say, all the circumstances of the case have to be considered. +Applying s.31 to the facts of this case, one cannot escape the conclusion that Kensland had acquired the necessary knowledge required to bring the present action at the latest by November 1997 and that the present action is clearly statute-barred. +Mr Justice Ribeiro PJ: +The appellant (“Kensland”) seeks to overturn the decision of the Court of Appeal striking out its action alleging professional negligence against the respondents, a firm of solicitors (“TTC”). The action was struck out on the ground that it is statute-barred under the Limitation Ordinance, Cap 347 (“the Ordinance”). +In the courts below, Kensland conceded that its writ had been issued after expiry of the primary limitation period of six years under section 4 of the Ordinance. However, Kensland was allowed to withdraw that concession without opposition so that on this appeal, the Court is asked to decide whether the action should be permitted to proceed on the basis either that it was started within the primary limitation period or that the secondary limitation period provided for by section 31 of the Ordinance applies. +A. The original proceedings +The present action arises out of a property transaction which led to legal proceedings culminating in an appeal to this Court decided in 2001. The course of events was as follows. +A.1 The underlying property transaction +In June 1997, with TTC acting as solicitors on its behalf, Kensland agreed to purchase certain shop premises for HK$53 million and contracted to re-sell them to a purchaser named Whale View Investment Ltd (“Whale View”) for HK$55 million. The solicitors acting for Whale View were Messrs Tam, Pun and Yipp (“TPY”). Deposits totalling HK$8.25 million were paid by Whale View and completion was agreed to take place on or before 2 September 1997 between the hours of 10.00 am and 1.00 pm at TTC’s offices, with time made of the essence. An important clause of the contract entitled Kensland to direct that payment should be by a specified number of cashier orders or solicitors’ cheques in stated amounts, designed to enable Kensland to pass on appropriately denominated cheques to the head vendor. Unless payment was made in accordance with Kensland’s directions (referred to in the original proceedings as the “split cheque directions”) Whale View’s payment obligations would be deemed not to have been discharged. +It was therefore necessary for Whale View to receive the split cheque directions in good time. However, they were not received from TTC until 11.13 am (with a correction made at 11.48 am) on 2 September 1997, that is, until rather less than two hours before the 1.00 pm deadline for completion. Whale View was keen to complete its purchase since the property market was very buoyant and, as the parties later agreed, the shop premises were then worth some HK$63 million. But despite the urgent efforts of TPY and Whale View’s bankers, the 1.00 pm deadline was not met: the payment instruments arrived at TTC’s offices at 1.06 pm, six minutes late. +In an affirmation filed in the present proceedings by Yvonne Yeung Han Yi (“Ms Yeung”), one of Kensland’s directors, Ms Yeung states that shortly after 1.00 pm on that day, she was advised by TTC that Whale View’s tender of payment after the deadline entitled Kensland to rescind the contract and forfeit the deposits. She affirms that Kensland acted on that advice. It will be necessary later to consider more closely the exchanges between Ms Yeung, TTC and TPY surrounding that decision. +A.2 The original proceedings brought by Whale View +Whale View issued proceedings against Kensland on the very next day, 3 September 1997, claiming specific performance and alternatively, return of the deposits with damages, interest and costs. The writ was immediately registered against the property as a lis pendens. +The original proceedings were dismissed by the trial Judge on 5 August 2000 on the basis that sufficient time had been allowed for completion. Whale View had sued TPY in an alternative claim for negligence in their preparation of related banking documents. That action succeeded with damages being awarded against TPY. However, the Judge’s decision was reversed by the Court of Appeal on 23 January 2001. It held that Kensland was in breach of an implied term and had itself repudiated the contract. It ordered Kensland to return the deposits and to pay damages of $8 million to Whale View with interest (agreed to run at the rate of 10.5% from 3 September 1997) and costs. It also allowed TPY’s appeal. +Kensland’s appeal to this Court was dismissed on 10 December 2001, for reasons differing in some respects from those of the Court of Appeal. It was held that Kensland’s provision of the split cheque directions at such a late stage constituted breach of an implied term that such directions had to allow the purchaser’s solicitors a reasonable time to comply. Kensland was therefore not entitled to take advantage of its own wrong by invoking the “time of the essence” clause and refusing completion. It was held to have repudiated the contract, entitling Whale View to the relief granted by the Court of Appeal. +B. The present proceedings +After the Court of Appeal’s judgment in the original proceedings, Kensland went into compulsory liquidation and, on 23 November 2001, its liquidators were appointed. +B.1 The claims made by Kensland in the present proceedings +The writ in the present proceedings was issued on 13 January 2004. It is indorsed with claims for damages in the sum of HK$8 million (in respect of the damages paid by Kensland to Whale View); damages of HK$2,767,407.33 (representing legal fees incurred by Kensland); and damages in the sum of HK$17,980,000 in respect of “the diminution in value [of the premises] between 9 September 1997 and 19 May 1998”; all said to result “from negligent legal advice by” TTC. Interest is claimed on all these sums. +Kensland’s Statement of Claim alleges that the damage suffered was “a result of TTC’s negligent handling of Kensland’s affairs” particularised in terms of TTC : +failing to provide the split cheque directions to TPY within a reasonable time; +wrongly advising Kensland “that TPY’s late tender, in the circumstances, constituted a repudiation of the agreement”; +wrongly advising that the split cheque directions “had been given within sufficient time for the preparation of split cheques and cashier[s] orders”; +failing “to advise Kensland that, in law, it would not be entitled to take advantage of [its] own breach of the implied term”; +failing “to advise Kensland ... that if Kensland’s delay in completion was due to its default Kensland would not be entitled to treat the agreement as repudiated or take any consequential steps”; and, +failing “to point out and advise Kensland fully of the risks involved in refusing to complete and, in particular, of the very real risk of having to compensate Whale View”. +B.2 TTC’s limitation defence and the striking-out application +In its Defence TTC joins issue with many of the factual allegations of negligence but these do not require discussion. Pertinently, it pleads limitation, contending that Kensland’s causes of action arose on 2 or 3 September 1997, more than six years before issue of the writ, and are statute-barred. +TTC proceeded to issue the striking-out summons and evidence was filed. At the hearing before the Judge, a “draft Reply” was handed up on Kensland’s behalf, pleading section 31 and putting the availability of the secondary limitation in issue. +The striking-out application has proceeded on the basis of essentially undisputed evidence, in particular of Ms Yeung, regarding the circumstances in which Kensland refused to complete the sale agreement and consequential developments. It has also proceeded on the assumption, made for striking-out purposes, that Kensland’s pleaded allegations, particularly regarding TTC’s negligence and the resultant damage suffered by Kensland, are made good. +At first instance, the Judge refused to strike out Kensland’s claim, holding that it was arguably not time-barred. But the Court of Appeal reversed the Judge, holding that knowledge relevant to section 31 was established so that Kensland’s action was not saved by the secondary limitation period. +C. Kensland’s claim and the primary limitation period +The primary limitation period relevant to Kensland’s claim is laid down by section 4(1)(a) of the Ordinance which provides: +“The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action accrued, that is to say ... actions founded on simple contract or on tort ...” +While Kensland’s complaint against TTC may in principle be founded on concurrent breaches of contractual and tortious duties, it is rightly accepted by Mr John Scott SC on Kensland’s behalf that its contractual cause of action is time-barred. In accordance with the general rule, that cause of action accrued on the date when the contract was broken, that is on 2 September 1997 when TTC allegedly gave the negligent advice. We are accordingly concerned only with Kensland’s claim in tort and, for the purposes of this first argument, with the date when Kensland first incurred damage. +C.1 Damage which completes the cause of action in tort +Mr Scott seeks to argue that no damage was suffered “until the Court of Appeal handed down judgment in the [original proceedings]” and therefore that the cause of action only accrued on 23 January 2001, putting issue of the writ well within the primary limitation period. In the draft Reply, there is a suggestion that damage was only incurred even later, that is, when this Court handed down its judgment on 10 December 2001. In my judgment, neither proposition is sound and Kensland’s argument must be rejected. +A cause of action in tort accrues when the damage which results from the tortious conduct is real, as distinct from minimal or negligible and is actual, as opposed to purely contingent. The concept of “damage” is given a broad meaning. It encompasses damage consisting of “any detriment, liability or loss capable of assessment in money terms.” Where economic loss is involved, it includes loss suffered “by payment of money, by transfer of property, by diminution in the value of an asset or by the incurring of a liability.” Whether damage has been incurred in any particular case is a question of fact. Its precise quantification may only be possible at a later date, by which time it may have become more serious, but that does not detract from the earlier accrual of the cause of action. The damage must, however, be recoverable as falling within the measure of damages applicable to the defendant’s wrong in question. +C.2 When damage was incurred in the present case +Applying these principles, there can be no doubt that Kensland’s cause of action accrued on 2 September 1997. The applicable measure of damages for negligence aims to put Kensland in the position that it would have occupied had there been no breach of duty by TTC. Kensland’s case is that it would have completed the sale but for TTC’s negligent advice. If that had happened, then having purchased the property for HK$53 million, it would have on-sold to Whale View for HK$55 million, making a profit of HK$2 million less transaction expenses. +Instead, acting upon TTC’s advice, it refused to complete and immediately incurred a liability in damages to Whale View, later quantified at HK$8 million. It also incurred a liability to pay interest on that amount which, as noted above, Kensland later agreed should run from 3 September 1997. On that date, Kensland was made a defendant in the action brought by Whale View and began incurring legal costs in mounting its defence and prosecuting its counterclaim. Kensland now claims damages from TTC in the sum of HK$2,767,407.33 representing accumulated legal costs. It also found itself saddled with a property which was encumbered by the registration of a lis pendens in a volatile property market, effectively rendering it unsaleable until the encumbrance was vacated. It now claims that it suffered a loss of HK$17,980,000 “between 9 September 1997 and 19 May 1998” representing “the diminution in value of the premises” during that period. +Mr Scott’s argument that no loss was incurred until the handing-down of the courts’ decisions is untenable in the light of the abovementioned facts. Those decisions merely declared that the immediate legal consequence of Kensland’s refusal to complete on 2 September 1997 was the incurring of liability in respect of the heads of loss set out above. Kensland’s proceedings were therefore commenced outside the primary limitation period and the concession made below was correct. +D. Legal principles applicable to the secondary limitation period +D.1 Section 31 +The secondary limitation period which Kensland relies on is provided for by section 31 of the Ordinance as follows: + Actions in respect of latent damage not involving personal injuries +Section 31: Special time limit for negligence actions where facts relevant to cause of action are not known at date of accrual +(1) This section applies to any action for damages for negligence, other than one to which section 27 applies, where the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both- +(a) the knowledge required for bringing an action for damages in respect of the relevant damage; and +(b) a right to bring such an action, +(referred to in this section as the “date of knowledge”) falls after the date on which the cause of action accrued. +(2) The period of limitation prescribed by section 4(1) in respect of actions founded on tort shall not apply to an action to which this section applies. +(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4). +(4) That period is either- +(a) 6 years from the date on which the cause of action accrued; or +(b) 3 years from the date of knowledge, if that period expires later than the period mentioned in paragraph (a). +(5) In subsection (1) “the knowledge required for bringing an action for damages in respect of the relevant damage” means knowledge- +(a) of such facts about the damage in respect of which damages are claimed as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment; +(b) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; +(c) of the identity of the defendant; and +(d) if it is alleged that the act or omission was that of a person other than the defendant, of the identity of that person and the additional facts supporting the bringing of an action against the defendant. +(6) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (1). +(7) For the purposes of this section or section 33 a person’s knowledge includes knowledge which he might reasonably have been expected to acquire- +(a) from facts observable or ascertainable by him; or +(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek, +but a person shall not be taken by virtue of this subsection or section 33 to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice. +D.2 The effect of section 31 +The effect of being brought within section 31 is, at least for present purposes, uncontroversial: the plaintiff is enabled to rely on a three-year secondary limitation period which commences, not from the accrual of the cause of action, but from his “date of knowledge”, as defined in section 31(1). The barring of the plaintiff’s claim is postponed to the extent, if any, that the secondary limitation period expires later than the six-year primary limitation period. However, by section 32, the potential period of postponement is subject to an overall cap of 15 years from the occurrence of the last act or omission alleged to constitute negligence (whether or not the resultant damage has by then been incurred). +Since the secondary limitation period allows a period of only three years from the “date of knowledge”, that is, the date when the plaintiff first acquired the relevant knowledge, for starting proceedings, the section can only help a plaintiff who did not acquire such knowledge until over halfway into the six-year primary limitation period. Earlier knowledge would not result in any extension of time for issuing the writ. +The controversial provisions which have given rise to some difficulties of construction are subsections (1), (5), (6) and (7) of section 31, setting out the conditions for applicability of the secondary limitation period. They must be construed in the context of their statutory purpose. +D.2 The origins and purpose of section 31 +The objective of limitation periods is well known. A defendant who is forced to defend an action long after the events which gave rise to the plaintiff’s claim is likely to suffer injustice. Evidence required in his defence may no longer be available or may, over time, have diminished in cogency. From the court’s point of view, such cases are much more difficult to try. The various statutes of limitation therefore require plaintiffs, in the public interest, to pursue their claims within a reasonable time. +Limitation periods generally run from the date of accrual of the cause of action. With the tort of negligence, as we have seen, this is when damage is incurred, “damage” being broadly defined as encompassing any detriment, liability or loss capable of monetary assessment. The great breadth of the concept means that the consequences which immediately follow upon a defendant’s breach of duty will often qualify as “damage” so as to set time running for limitation purposes. This is so even if such damage is imperceptible at that stage and is not reasonably discoverable until much later – by which time the limitation period may already have expired. +Plainly, a limitation statute works an injustice if it bars a plaintiff’s claim in such circumstances. And well-known cases of such injustice have arisen. As Lord Nicholls points out: +“They were high-lighted in decisions of your Lordships’ House in appeals such as the pneumoconiosis case of Cartledge v E Jopling & Sons Ltd [1963] AC 758 and the defective chimney case of Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1. There claimants were held to be statute-barred before they knew or could be expected to know they had suffered damage.” +The legislative amendments introduced in England and Wales to remedy that injustice are now contained in the Limitation Act 1980 (“the Act”). The provisions presently relevant derive from those amendments which were shadowed in our Ordinance. Section 11 of the Act, which introduced a secondary limitation period in personal injury cases, is reproduced in section 27 of the Ordinance. And section 14A of the Act, inserted by the Latent Damage Act 1986 in respect of non-personal injury negligence actions, is replicated in section 31. +The essential purpose of section 31 is therefore to redress the injustice of barring a plaintiff’s claim by limitation where the latency of the damage incurred has deprived him of the knowledge required to bring proceedings within the primary limitation period. +D.3 The main features of section 31 +I will begin by mentioning three features of section 31 which appear to me to be of importance. +D.3a The method of approach under section 31 +First, section 31 provides an indication of how it should be approached from what it implicitly assumes. It presupposes the existence of an action for negligence brought by a plaintiff, stating in section 31(1)(a) that it relates to an “action for damages for negligence.” Indeed, if there were no action being prosecuted, there would be no defendant raising a plea of limitation. It also presupposes that the action is brought both after the cause of action has accrued and after the primary limitation period has expired since it is only necessary to consider the section if the six-year period has gone by. Accordingly, section 31 assumes that in applying its provisions, the court will be able to refer to a pleaded negligence claim, in which the plaintiff has identified the defendant who is alleged directly or vicariously to be responsible for acts or omissions said to constitute negligence and to have resulted in specified damage. What section 31 addresses is the question of when the plaintiff first acquired knowledge of the matters which he has since been able to set out in his pleadings. +Section 31 focuses on the four aspects of knowledge set out in section 31(5). These concern knowledge about the seriousness of the damage incurred; the linkage between that damage and the acts or omissions alleged to constitute negligence; and the identity of the defendant. Time does not begin to run until the plaintiff acquires all four aspects of knowledge. But since the identity of the defendant is not in issue in the present case, I will confine myself to a discussion of the first two aspects, the seriousness of the damage and its attributability dealt with in paragraphs (a) and (b). +It is established that where a defendant raises a limitation defence and the plaintiff invokes the section 31 secondary limitation period, it is the plaintiff who bears the burden of proving that he did not acquire the required knowledge until a point of time within the three year period immediately preceding the issue of the writ. +D.3b The plaintiff’s actual and imputed knowledge are taken into account +Secondly, the knowledge which sets time running under section 31 consists both of the plaintiff’s actual knowledge and knowledge which is imputed to him. When sections 31(1)(a) and 31(5) speak of the plaintiff having knowledge of certain matters, they are naturally taken to be referring to the plaintiff’s actual knowledge. However, an objective standard is clearly also applicable. Section 31(7) provides that for the purposes of the section, “a person’s knowledge includes knowledge which he might reasonably have been expected to acquire (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek.” It follows that the extended meaning given to “knowledge” by section 31(7) is part of the definition of that word wherever it appears in section 31. +Of course, on the facts of a particular case, it may be unnecessary to resort to any concepts of imputed or constructive knowledge. If the court finds that a plaintiff had actual knowledge of the matters set out in section 31(5), it needs to go no further. But if a plaintiff lacked actual knowledge but could reasonably have been expected to have acquired the relevant knowledge in accordance with the provisions of section 31(7), then such knowledge is to be imputed to him. +I should mention one aspect of the House of Lords’ judgment in Haward v Fawcetts that may at first sight appear puzzling. Their Lordships approached their decision on the footing that it was not open to them to take into account any constructive knowledge within the meaning of section 14A(10) of the Act (the Hong Kong equivalent being section 31(7)). Lord Walker of Gestingthorpe thought this an “unusual feature” of the case and both Lord Brown of Eaton-under-Heywood and Lord Mance thought that this hampered their decision-making. Lord Mance stated: +“I have not found this an easy appeal to resolve on the facts, bearing in mind that all that is in issue is actual knowledge. The difficulty I have found would have been unlikely to exist had the issue of constructive knowledge been squarely raised before the judge. The House was not invited to depart from the Court of Appeal’s conclusion that it was not open to Fawcetts to assert constructive knowledge within section 14A(10).” +In my view, their Lordships should not be understood as suggesting that the applicability of section 31(7) (which is in terms materially identical to section 14A(10)) is somehow a matter dependent upon the attitude taken by one of the parties or indeed, by the lower court. It is part of the statutory definition of what constitutes “the knowledge required for bringing an action” referred to in section 31(1)(a) as elaborated upon in the subsections following and it is obviously not open to a party to opt out of part of a statutory definition. A plaintiff’s invocation of the secondary limitation period requires the court to construe the word “knowledge” wherever it arises in section 31 and in doing so, it inescapably takes into account what the statute, including section 31(7), says that term does and does not include. +Their Lordships should, in my opinion, be understood merely to have been expressing regret that factual issues relevant to the application of the equivalent of section 31(7) had not been aired. Consequently, they reached their decision on grounds which dispensed with any need to consider imputed knowledge. They held that Mr Haward’s case for being allowed to rely on the secondary limitation period had been misdirected, the inquiry having been addressed not to knowledge of the relevant damage (the plaintiff’s loss of large sums invested) but to damage falling outside the proper measure of damages (the failure of the company acquired). Accordingly, Mr Haward was held not to have properly addressed, and therefore not to have discharged, his burden. Nevertheless, their Lordships did indicate that even on the evidence as it stood, Mr Haward could have had imputed to him knowledge of the relevant damage and its attributability. Thus, Lord Nicholls commented that the disparity between the advice received and the company’s disastrous losses had “stared Mr Haward in the face” well before the relevant cut-off date. And Lord Mance referred to “the obviousness of the company’s problems from the outset in contrast with the optimism of the 1995 business plan and of Fawcetts’ alleged advice and attitude” as supporting his decision to allow the appeal. Other members of the panel took a similar view. +D.3c The required knowledge relates to damage, not liability +Thirdly, section 31 is concerned with the plaintiff’s knowledge relating to the damage incurred and not with the defendant’s liability. This is in accordance with the statutory purpose of postponing limitation in cases of latent damage. Section 31 centres on whether the plaintiff had “the knowledge required for bringing an action for damages in respect of the relevant damage”. This is made to depend on the state of his knowledge, actual or imputed, regarding the damage incurred and its attributability, in other words, on whether the damage should in the circumstances be considered latent. +Postponement of the limitation period has nothing to do with whether the plaintiff knew that the defendant’s conduct amounted in law to negligence or that he had a good claim against the defendant. Thus, in laying down the standard for deciding whether the damage is known to be sufficiently serious, section 31(5)(a) posits an objective test involving a defendant who does not dispute liability, so that negligence is hypothetically assumed. And section 31(6) expressly provides that “knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant.” This is consistent with the law’s general approach to limitation periods, dismissing a statute-barred action whether or not it would otherwise have been a good claim. +D.4 Section 31(5)(a) +Against this background, I turn to consider more closely the construction of section 31(5)(a) which materially provides as follows: +“In subsection (1) ‘the knowledge required for bringing an action for damages in respect of the relevant damage’ means knowledge of such facts about the damage in respect of which damages are claimed as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment ...” +Obviously, by the time the action is commenced and the case is pleaded, the plaintiff will have considered the damage to be of a sufficient magnitude to justify initiating legal proceedings. However, the fact that the plaintiff needs to invoke the secondary limitation period means that he has only commenced the proceedings after expiry of the primary limitation period and accordingly that there has for some reason been a delay. +A legitimate reason recognized by section 31(5)(a) as justifying postponement involves the case where the plaintiff did not commence proceedings because he only realised the seriousness of the damage incurred at a late stage: a typical case of latent damage. The other paragraphs of section 31(5) identify the other matters considered legitimate reasons for delay (up to the maximum of 15 years): lack of knowledge of the linkage between the damage and the relevant acts or omissions and ignorance of the identity of the defendant. +Section 31(5)(a) imposes an objective standard to judge the plaintiff’s delay from the aforesaid perspective. It postulates a reasonable person’s assessment of the facts known to the plaintiff about the damage and deems his knowledge sufficient to trigger the secondary limitation period at the point in time when a reasonable person would have considered the damage sufficiently serious to justify starting proceedings against a hypothetical solvent defendant who does not dispute liability. Gaining such knowledge may of course involve a process during which additional facts become known over time. It is a question of fact, applying the objective standard, when the plaintiff should be taken to have acquired the relevant knowledge. +Section 31(5)(a) establishes a low threshold. If a reasonable person knows that the defendant will not contest liability and will pay up, quite minor damage may be thought to justify the cost and effort of issuing a writ. It follows that where a plaintiff becomes aware or has imputed to him knowledge of some actual damage, provided that it is not so trivial as to be not worth bothering about, the knowledge requirement of section 31(5)(a) is likely to be satisfied. +In adopting this low threshold, section 31(5)(a) mirrors the rule concerning objective accrual of the cause of action in a negligence claim. Thus, in Cartledge v Jopling, Lord Reid held that the cause of action is complete where the injury suffered is “beyond what can be regarded as negligible” and Lord Evershed spoke of “real damage as distinct from purely minimal damage.” Section 31(5)(a) treats knowledge of damage with similarly slight dimensions as sufficient for the purposes of section 31(1)(a). +A potential source of confusion involves the different contexts in which section 31 introduces separate objective standards which interact with the subjective knowledge possessed by the plaintiff. +As we have seen in Section D.3b above, one such objective standard, introduced by section 31(7), relates to the knowledge which is to be imputed to the plaintiff where he might reasonably have been expected to acquire knowledge about the damage and its attributability from facts observable or ascertainable by him, with appropriate expert help if necessary. +That standard obviously differs from the standard introduced by section 31(5)(a) just discussed. The latter operates to assess the seriousness of the damage which the plaintiff knew about or is (pursuant to section 31(7)) taken to have known about. +The distinction between these two standards was emphasised in Lord Hoffmann’s analysis of sections 14(2) and 14(3) of the Act (parallels of our sections 31(5)(a) and 31(7) in the English personal injury context) in the recent decision of the House of Lords in A v Hoare. His Lordship stated: +“The test for imputing knowledge in section 14(3) is by reference to what the claimant ought reasonably to have done. It asks whether he ought reasonably to have acquired certain knowledge from observable or ascertainable facts or to have obtained expert advice. But section 14(2) is simply a standard of seriousness applied to what the claimant knew or must be treated as having known. It involves no inquiry into what the claimant ought to have done. A conclusion that the injury would reasonably have been considered sufficiently serious to justify the issue of proceedings implies no finding that the claimant ought reasonably to have issued proceedings. He may have had perfectly good reasons for not doing so. It is a standard to determine one thing and one thing only, namely whether the injury was sufficiently serious to count as significant.” +As we shall see, a third objective standard, performing yet another different function, has been introduced by the case-law. That third standard is applied to assess the quality and scope of the plaintiff’s knowledge, as discussed below. It is important that the different roles played by each of these different standards be recognized and kept analytically separate. +D.5 Section 31(5)(b) +Section 31(5)(b) relevantly provides: +“In subsection (1) ‘the knowledge required for bringing an action for damages in respect of the relevant damage’ means knowledge that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence.” +As noted in Section D.3c above, section 31 does not concern itself with any knowledge on the plaintiff’s part concerning the defendant’s liability. The courts have emphasised that the words “knowledge that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence” do not invite any such discussion. As Hoffmann LJ stated in Dobbie v Medway Health Authority: +“...the words ‘which is alleged to constitute negligence, nuisance or breach of duty’ serve to identify the facts of which the plaintiff must have knowledge without implying that he should know that they constitute a breach of a rule, whether of law or some other code of behaviour.” +Those words indicate the method of approach discussed in Section D.3a above, pointing the court in the direction of the plaintiff’s pleaded case regarding the acts or omissions alleged to constitute the defendant’s negligence. +Sir Thomas Bingham MR, in the Dobbie case, illustrated the way the equivalent of section 31(5)(b) works with the following example: +“Time starts to run against the claimant when he knows that the personal injury on which he founds his claim is capable of being attributed to something done or not done by the defendant whom he wishes to sue. This condition is not satisfied where a man knows that he has a disabling cough or shortness of breath but does not know that his injured condition has anything to do with his working conditions. It is satisfied when he knows that his injured condition is capable of being attributed to his working conditions, even though he has no inkling that his employer may have been at fault.” +D.6 Further issues +In most cases, the application of section 31 presents no difficulty. +Having identified, from the pleadings and, in so far as relevant, any other materials, the damage and the acts or omissions from which such damage is said to have resulted, it becomes a question of fact when the plaintiff first had actual knowledge of the damage and its level of seriousness (applying the objective standard of seriousness laid down by section 31(5)(a)), as well as actual knowledge of the attributability of that damage to the acts or omissions in question. +If the court finds that such actual knowledge did exist as from a particular time, the secondary limitation period is deemed to commence running from that moment on and no further consideration of the section’s operation is required. It proceeds to determine whether the action was commenced before expiry of the secondary limitation period. Many cases will be decided at this point. +To the extent that the court finds that the plaintiff lacked such actual knowledge, it goes on to consider whether, given the facts observable or ascertainable by him, the plaintiff ought reasonably to have such knowledge imputed to him under section 31(7), applying the objective standard contained in that provision. It is likely that the great majority of cases can be resolved at this stage. +However, the experience of the courts has been that in some cases, further issues arise for resolution. These are issues concerning the quality and scope of the knowledge possessed by or imputed to the plaintiff. Having gone through the process described in the preceding paragraph, the court may arrive at the conclusion that the plaintiff’s actual or imputed knowledge was incomplete or lacking in detail or involved a significant degree of uncertainty. Does knowledge with such characteristics qualify as knowledge within section 31 so as to set time running? What tests or standards should one apply for drawing the line between knowledge which is too uncertain or too vague and knowledge which suffices? +D.6a The quality and scope of the knowledge +These issues stem from the immense variety of possible types of damage and their interaction with the almost limitless permutations of conduct which may be alleged to constitute negligence. They are issues which can arise in the context of both section 31(5)(a) and section 31(5)(b): To what degree of certainty must the plaintiff know (or be taken to know) that he has in fact suffered damage and that such damage is sufficiently serious? How certain, complete and detailed must his knowledge (or imputed knowledge) be of the attributability of such damage to the acts or omissions subsequently alleged to constitute negligence? +One example of a case where such issues arose in the personal injury context is Nash v Eli Lilly & Co, which concerned wide-ranging side-effects experienced by users of a drug called “Opren”, licensed to be used in the treatment of arthritis. Some plaintiffs suffered from photosensitivity and others from onycholysis, being a condition damaging to finger and toe nails. Some suffered from conditions said to be “to a large extent subjective, eg irritation, pain, dizziness, etc,” with little to be seen by way of organic damage. Yet others suffered from serious complications such as liver and kidney failure, resulting in some cases, in death. Plainly, it would not have been easy for some of these plaintiffs to be confident of the fact and extent of the damage suffered or confident of attributing their particular side-effects to the drug. There would in some cases have been difficulty in drawing a “distinction between an expected, or accepted, side effect, and an injurious and unacceptable consequence of taking a prescribed drug.” At what point is equivocal knowledge of this sort, located somewhere in a spectrum of suspicion and belief, sufficient to start time running under section 31? I turn to consider the solutions developed in the case-law. +D.6b Where knowledge has a significant degree of uncertainty +It has, of course, always been acknowledged that the knowledge which triggers the secondary limitation period does not have to involve the plaintiff knowing anything “for certain”. Life seldom lends itself to such certainty and such a high standard would in practice be likely to mean that the secondary limitation period is routinely extended to the limit of the 15 year cap under section 32. Thus, in Halford v Brookes, Lord Donaldson of Lymington MR stated (as to the degree of certainty of knowledge regarding the identity of the defendant): +“The word has to be construed in the context of the purpose of the section, which is to determine a period of time within which a plaintiff can be required to start any proceedings. In this context ‘knowledge’ clearly does not mean ‘know for certain and beyond possibility of contradiction’. It does, however, mean ‘know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence’. Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice.” +Halford v Brookes was an unusual case. A mother, suing as the personal representative of her daughter whom she had strong reason to believe had been murdered by either one or other of two defendants, could not be sure to which of these men’s actions her daughter’s death should be attributed. The court held that “attributable” in the equivalent of our section 31(5)(b) meant “capable of being attributed” and that this applied to both men who could be made defendants in the alternative, there being no need for the plaintiff to have any greater degree of certainty to start time running. On the strict application of the secondary limitation period, the case was held to be time-barred since the mother had possessed the requisite knowledge at an early stage. But as it was a personal injury claim, the court had, and decided to exercise, a discretion to override the limitation period and permit the action to continue. +In Nash v Eli Lilly & Co, the “Opren” case, Purchas LJ proposed a standard of certainty similar to that suggested by Lord Donaldson MR: +“In applying the section to the facts of these cases, we shall proceed on the basis that knowledge is a condition of mind which imports a degree of certainty and that the degree of certainty which is appropriate for this purpose is that which, for the particular plaintiff, may reasonably be regarded as sufficient to justify embarking upon the preliminaries to the making of a claim for compensation such as the taking of legal or other advice.” +The answer which their Lordships gave in these two cases was therefore a pragmatic one: the plaintiff’s knowledge is to be treated as sufficient for setting time running from the moment when a reasonable person would have regarded it as certain enough “to justify embarking upon the preliminaries to the making of a claim for compensation such as the taking of legal or other advice”. He would then have three years to bring preparations to a stage when a writ could be issued. However, a reasonable person could be expected to refrain from taking such steps while the knowledge remained too scanty or too vague or amounted only to speculation or unsubstantiated suspicion. This introduces the third objective standard mentioned above. It obviously plays a role different from the two objective standards previously discussed. It is an approach which has often since been adopted. +It is my respectful view that this approach involves an entirely legitimate and necessary purposive construction of section 31. That provision is centred around ascertaining when the plaintiff first had “the knowledge required for bringing an action for damages in respect of the relevant damage” as stated in section 31(1)(a). That concept is defined in subsections (5), (6) and (7). But those definitions have been found not to be exhaustive, leaving further issues concerning the quality and scope of the knowledge possessed by or imputed to the plaintiff to be dealt with. In seeking to address the issue concerning the degree of certainty required, Lord Donaldson MR and Purchas LJ returned to the central concept of “the knowledge required for bringing an action.” The pragmatic threshold of certainty which they adopted implements the basic statutory purpose of section 31, asking: At what point in time did the knowledge become certain enough objectively to justify taking the first steps in the bringing of an action? +D.6c Uncertainty in the context of legal liabilities +As noted above, one form of damage which completes the cause of action in negligence is the incurring of legal liability. This raises two particular issues in relation to the certainty of knowledge. +In the first place, since the incurring of such a liability is a legal construct and not in itself physically perceptible, there may be cases where the plaintiff has no knowledge whatsoever that he has incurred such damage and only finds out when he is visited with some palpably detrimental consequences, such as when a demand is made by mortgagees in respect of a debt which he did not previously know had been secured on the property in question. It was on this basis that the House of Lords in Haward v Fawcetts overruled HF Pension Trustees v Ellison, a case where trustees of a pension scheme were wholly unaware that a reorganization and transfer of surplus monies effected under legal advice constituted an invalid exercise of a fiduciary power which attracted potentially irrecoverable tax liabilities. +Secondly, even where a plaintiff knows that he has attracted a potential liability to a third person as a result of the acts or omissions of the defendant, uncertainty may exist as to whether such liability will ultimately crystallize in favour of that third person so as to be translated into actual financial loss. +Issues of this kind are resolved by applying the pragmatic objective test referred to above. If the potential for being made liable to the third party is real enough to lead a reasonable person to conclude that steps preliminary to the commencement of proceedings against the defendant ought to be taken, the plaintiff is taken to have sufficiently certain knowledge to set time running for the purposes of section 31. Consistently with this approach, Lord Nicholls held that time does not begin to run against a claimant until he knows there is “a real possibility” that his damage was caused by the act or omission in question. And Lord Brown considered it sufficient if Mr Haward “knew that his loss might well have resulted from an investment made on Fawcetts’ advice.” +D.6d Where knowledge is incomplete or lacking in detail +In the plaintiff’s pleadings, the acts or omissions alleged to constitute negligence are likely to have been particularised in a number of alternative ways aimed at covering a variety of findings that may be made at the trial. Such particulars may have been fashioned for various legal purposes, such as for bringing the case within a precedent favourable to the plaintiff. They are obviously not intended to describe what the plaintiff actually came to know about the attributability of the damage to the defendant’s acts or omissions now said to amount to negligence. Nor should section 31 be construed as requiring the plaintiff to have detailed knowledge of the matters set out in such particulars before he is treated as having the knowledge required to set time running. What matters is the plaintiff’s knowledge of what lies at the core of the pleaded case. +That is the principle developed in the case-law. As Hoffmann LJ put it in Broadley v Guy Clapham & Co: +“Section 14(1)(b) [the equivalent for our purposes of section 31(5)(b)] requires that one should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had, in broad terms, knowledge of the facts on which that complaint is based.” +The requisite knowledge is not of the acts or omissions as pleaded, but knowledge of the facts constituting “the essence of the complaint of negligence” distilled from such pleading. Lord Nicholls summarises some of the authorities in the following terms: +“Consistently with the underlying statutory purpose, Slade LJ observed in Wilkinson v Ancliff (BLT) Ltd [1986] 1 WLR 1352, 1365, that it is not necessary for the claimant to have knowledge sufficient to enable his legal advisers to draft a fully and comprehensively particularised statement of claim. Where the complaint is that an employee was exposed to dangerous working conditions and his employer failed to take reasonable and proper steps to protect him it may well be sufficient to set time running if the claimant has ‘broad knowledge’ of these matters. In the clinical negligence case of Hendy v Milton Keynes Health Authority [1992] 3 Med LR 114, 117-118, Blofeld J said a plaintiff may have sufficient knowledge if she appreciates ‘in general terms’ that her problem was capable of being attributed to the operation, even where particular facts of what specifically went wrong or how or where precise error was made is not known to her. In proceedings arising out of the manufacture and sale of the drug Opren Purchas LJ said that what was required was knowledge of the ‘essence’ of the act or omission to which the injury was attributable: Nash v Eli Lilly & Co [1993] 1 WLR 782, 799. In Spargo v North Essex District Health Authority [1997] PIQR P235, P242 Brooke LJ referred to ‘a broad knowledge of the essence’ of the relevant acts or omissions ...” +These formulations make the important point that the section does not require the plaintiff to have had knowledge of the full-blown pleaded facts. But it may well be said that notions like “the essence” of the complaint, “broad knowledge” of the facts, an appreciation of the problem “in general terms” and “a broad knowledge of the essence” are not very informative as standards to be applied. +Once again, as Hoffmann LJ held in Broadley v Guy Clapham & Co, a purposive construction leads to application of the pragmatic objective standard discussed above for guidance as to when the plaintiff’s knowledge should be regarded as sufficiently complete and detailed. His Lordship stated: +“How does one determine the ‘essence’ of the act or omission? The purpose of s 14(1), as Lord Donaldson MR pointed out in Halford v Brookes [1991] 3 All ER 559 at 573, [1991] 1 WLR 428 at 443 is to determine the moment at which the plaintiff knows enough to make it reasonable for him to begin to investigate whether or not he has a case against the defendant. He then has three years in which to conduct his inquiries and, if advised that he has a cause of action, prepare and issue his writ. Ordinarily it will suffice that he knows that the injury was caused by an act or omission of the defendant. But there may be cases in which his knowledge of what the defendant did or did not do is so vague and general that he cannot fairly be expected to know what he should investigate.” +D.6e The knowledge must extend to all the essentials +The proposition that the plaintiff must know “the essence” of the complaint has two aspects. We have seen that it means that he does not need to know all the pleaded details. But it also means that he must know or be taken to know all the essential facts necessary to constitute the claim before time starts running against him. That is not to say that he must know he has a good claim in law. Such knowledge is plainly made irrelevant by section 31(6). What it does mean is that he must be shown to have actual or imputed knowledge of all the facts which are essential to the complaint which is eventually formulated as his negligence claim. +As Lord Mance points out, this is indicated by the language of section 31(5)(b): +“Turning to the phrase ‘the act or omission which is alleged to constitute negligence’, the word ‘constitute’ is in my view significant. It indicates that the claimant must know the factual essence of what is subsequently alleged as negligence in the claim.” +As Hoffmann LJ explains in Hallam-Eames v Merrett Syndicates, it would be an over-simplification to read section 31(5)(b) as merely requiring the plaintiff to have known that his damage had been caused by an act or omission of the defendant. That provision: +“... speaks of the damage being attributable to the act or omission which is alleged to constitute negligence. In other words, the act or omission of which the plaintiff must have knowledge must be that which is causally relevant for the purposes of an allegation of negligence. ... He must have known the facts which can fairly be described as constituting the negligence of which he complains. It may be that knowledge of such facts will also serve to bring home to him the fact that the defendant has been negligent or at fault. But that is not in itself a reason for saying that he need not have known them.” +This passage has often been followed and was approved in Haward v Fawcetts. However, deciding what facts should be characterised as part of the essentials can give rise to difficulty. This is illustrated by Dobbie v Medway Health Authority, a case in which the plaintiff, who had detected a lump in her left breast underwent surgery, believing that this was in order to have the growth removed and diagnostically examined. However, upon excising the lump, the surgeon thought it appeared to be cancerous and he proceeded, without her prior consent, to perform a mastectomy. The growth was in fact found to be benign. On coming round from the anaesthetic, the plaintiff was horrified to learn that her left breast had been removed but accepted the view of the surgeon and the nurse “that she was very fortunate that the growth had not proved to be malignant”. But she was devastated by loss of her breast and suffered not merely that physical injury but also serious psychological harm in consequence. It was not until some 15 years later that she realised, from hearing about a similar case, that the breast should not have been removed prior to a biopsy. She issued the writ a year later. The issue was whether her state of knowledge had been such as to have triggered the secondary limitation period long before it could save her action from being time-barred. +Sir Thomas Bingham MR held that “the essential thrust of the case was that the breast should not have been removed until the lump had been microscopically examined and found to be malignant.” On this footing he found that she had, from an early stage, knowledge of all the essentials so that the secondary limitation period had long expired: +“The personal injury on which the plaintiff seeks to found her claim is the removal of her breast and the psychological and physical harm which followed. She knew of this injury within hours, days or months of the operation and she, at all times, reasonably considered it to be significant. She knew from the beginning that this personal injury was capable of being attributed to, or more bluntly was the clear and direct result of, an act or omission of the health authority. What she did not appreciate until later was that the health authority’s act or omission was (arguably) negligent or blameworthy. But her want of that knowledge did not stop time beginning to run.” +In Hallam-Eames v Merrett Syndicates, Hoffmann LJ, illustrating by reference to the Dobbie case the need for the plaintiff to have actual or imputed knowledge of all the essential facts which constitute the claim, emphasised that it would not have been enough merely to assert that she knew, as she obviously did, that her left breast had been removed. The essential additional fact which she had to know to constitute the required knowledge and to set time running was that it was a healthy and not a cancerous breast that had been removed : +“If one asks on common sense principles what Mrs Dobbie was complaining about, the answer is that the surgeon had removed a healthy breast. It would in our view be a seriously incomplete statement of her case to say that it was simply that the surgeon had removed her breast. This is not a matter of elaborating the detail by requiring knowledge of precisely how he had come to do the act complained of, such as this court rejected in Broadley. It was part of the essence of her complaint. Nor is it requiring knowledge of fault or negligence. The court’s emphatic rejection of such a requirement is entirely consistent with characterising the act complained of (and of which knowledge was therefore required) as the removal of a healthy breast.” +One readily sees the necessity of requiring the plaintiff at least to know that the removed breast had not in fact harboured a cancerous growth and that there had been no diagnostic examination before its removal, if time was to run against her. One can, however, also see the attraction of characterising the essentials of her complaint as having additionally to include the proposition that removal of a breast merely on the surgeon’s suspicion that the growth was cancerous and without a biopsy was not accepted medical practice – something that she did not discover until 15 years later. However, it is understandable that such argument was rejected as shading too far into a requirement for knowledge that the surgeon had acted negligently, which is territory forbidden by section 31(6). I venture to suggest that in the light of A v Hoare, a similar case to Dobbie occurring in the future might well find the court more willing to exercise the personal injury discretion to override the limitation period, especially in the light of the plaintiff having been advised by the surgeon and the nurse that she had had a fortunate surgical outcome, thereby putting her off the scent and contributing greatly to her delay. +D.7 Legal advice and section 31(7) +The position taken by both parties during submissions was that section 31(7), which deals with imputed or constructive knowledge, has no application to the taking of legal advice. In my view, that is too broad and undifferentiated a proposition. +Two matters might be suggested in favour of excluding section 31(7)’s application to the giving of legal advice, namely: +that section 31(6) provides: “Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (1)”; and +that section 31(7)(b) confines the imputation to knowledge which the plaintiff might reasonably have been expected to acquire “from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek.” +To take the first of these, section 31(6) operates to make it clear that time may run against a plaintiff even though he has no idea that the acts or omissions of the defendant involved negligence as a matter of law. It follows that it is never relevant to ask whether the plaintiff knew that such acts or omissions involved negligence on the defendant’s part. It also must follow that it is never relevant to invoke section 31(7) with a view to establishing that the plaintiff ought to have such knowledge of the defendant’s negligence imputed to him. But that is the limit of section 31(6)’s impact on section 31(7). There is nothing in section 31(6) to suggest that it operates so that the expert advice of a lawyer on topics other than the defendant’s liability to the plaintiff can never be “appropriate expert advice” or advice “appropriate to act on” within the meaning of section 31(7)(b). +The second matter centres on the word “facts” in section 31(7)(b). A person, it might be said, goes to a lawyer for advice on the law and not about facts. Accordingly, one would not expect the plaintiff to acquire knowledge from facts which he has ascertained with the help of expert legal advice since that is not the function of such advice. Therefore, so the argument runs, section 31(7) has no role to play in connection with legal advice. In my view, this argument over-simplifies the nature of the advice which a client seeks and obtains from his lawyer. +Section 31(7) might of course have no application in a situation where the plaintiff seeks advice purely on some point of law, for instance as to whether under Hong Kong law a company can operate with only one director or whether we have the equivalent of American anti-trust legislation. However, it must be very rare for advice to be sought purely on a point of law. A client does not go to a lawyer for an academic seminar but to ascertain matters of factual relevance to himself. He may for instance wish to find out, to use commercial rather than legal terms, what his “exposure” is or what financial consequences he faces in a particular situation: how much he might have to pay or be able to recover following a failed transaction; whether he may have difficulties realising security taken for a loan; or whether his insurers might refuse to indemnify him for a loss; or how much tax he has to pay; and so forth. These are all factual matters and may constitute damage which has already occurred or which may be looming in the future. Simply because the lawyer, in giving the advice is likely to refer to a statutory provision or principle of the common law in support of his conclusions, does not eclipse the factual dimensions of the advice given which may be important in a limitation context. It is therefore my view that advice obtained from lawyers in such circumstances is capable of being characterised as advice about “facts ascertainable by [the plaintiff] with the help of appropriate expert advice”, although, as it happens, resort to such imputed knowledge is unnecessary in the present case. +E. Kensland’s claim and the secondary limitation period +E.1 Kensland’s case on knowledge +In Section B.1 above, the damages claimed by Kensland have been set out together with the factual basis of such claims: HK$8 million to recover the damages Kensland was held liable to pay to Whale View; HK$2,767,407.33 to recover legal fees incurred; and HK$17,980,000 to compensate for “the diminution in value [of the premises] between 9 September 1997 and 19 May 1998”. They are all pleaded to be attributable to the “negligent legal advice by [TTC]” consisting of the particularised acts and omissions referred to above. +Financial detriment of this magnitude is plainly sufficiently serious on the objective standard imported by section 31(5)(a). Neither can there be any doubt that insofar as Kensland knew or is taken to have known that it had incurred such damage, it must have known or could be taken to have known that it was attributable to the advice given by TTC and acted upon by Kensland. +So the crucial question is: When, as a matter of fact, did Kensland first have knowledge (or to the extent necessary, imputed knowledge) that it had incurred such damage? Unless its date of knowledge fell within the three-year period immediately preceding 13 January 2004 when the writ against TTC was issued, the secondary limitation period does not save the claim from being statute-barred. +Kensland puts forward as its date of knowledge, 23 January 2001 which does fall within that three-year period. That was when the Court of Appeal handed down judgment in the original proceedings. Kensland argues that it did not have the required knowledge until it knew, as a result of that judgment, that the advice it had received from TTC was wrong: +“... it is necessary to know that the advice was wrong, because without that knowledge, there was no knowledge of a loss and so no knowledge of the facts which constitute the cause of action.” +E.2 The facts relating to Kensland’s actual knowledge +To put Kensland’s argument in a proper context, the facts relating to its rejection of the tendered purchase monies and the events which followed must be examined. +According to Ms Yeung, shortly after payment had been tendered by Whale View at 1:06 pm on 2 September 1997 she received a phone call from a Mr Tang of TTC who advised her that Whale View had repudiated the contract and that Kensland was entitled to rescind the agreement and to forfeit the deposit. She adds: +“... Mr Tang said to me that if I decided to rescind the Agreement, the other side might argue that the late delivery of the cheques was caused by [Kensland’s] delay in giving the instructions on the split cheque arrangement. However, he then said to me that he thought ‘one and a half hour’ would be regarded as sufficient time for the preparation of the split cheques.” +Ms Yeung records that when she went to Mr Tang’s office a little later that afternoon, he advised her that : +“... the other side might sue [Kensland] to get back the deposit. However, he told me that the chances of their succeeding were very low.” +Later that day, TTC received a letter from TPY (which TTC forwarded to Kensland) asking whether TTC had instructions to accept service of proceedings and stating: +“We … wish to place on record that [after a fax received at 11:12 a.m.] ... correct instructions were only given to us by telephone ... at around 11:45 a.m. You have given us effectually one hour and fifteen minutes to arrange for the issue of cashier orders for completion. ... Your delay in advising us the manner in which the balance of the purchase price is to be paid has left us with an unreasonably short period of time to arrange the cashier order for completion.” +On the following day, Whale View’s writ claiming specific performance and damages was served and a lis pendens registered. In the Statement of Claim which followed on 16 October 1997, Whale View pleaded an implied term that the split cheque directions should be given within a reasonable time before the deadline for completion, that the time allowed was not reasonable and that Kensland was accordingly not entitled to rescind and was liable for the relief claimed. +On 28 October 1997, Kensland filed a Defence stating: “If, which is not admitted, there was an implied term [to give the directions allowing a reasonable time] the defendant says that such reasonable time is 1 hour”. +By mid-November 1997, the property market had collapsed and on 14 November 1997, reflecting Kensland’s realisation that the value of the property had fallen sharply, TTC wrote to counsel instructing him to advise on questions including the following: +“(1) Can [Kensland] bind [Whale View] to purchase the said property at the price of HK$55,000,000 if we take out a Summons (or write a letter) admitting [its] claims or submitting to judgment as claimed? +(2) In such event, can [Whale View] amend ... to avoid purchasing the property if [it] takes note that the property is now worth much less than HK$55 million? ... +(4) If [Kensland] successfully admits [Whale View’s] whole claim and [Whale View] accepts such admission, what is the likely quantum of damages which [Whale View] can recover? +(5) If [Whale View] withdraws its claim for specific performance, can [Kensland] successfully apply to vacate the lis pendens from the Land Registry?” +By this time, some HK$78,300.00 in legal costs had been incurred. +On 19 December 1998, Kensland changed its solicitors, TTC ceasing to act, although no evidence was filed as to why this occurred. +E.3 What Kensland knew +On the foregoing facts, there can be no doubt that Kensland had actual knowledge of its having incurred serious financial damage from the outset and well before the start of the relevant three-year period in January 2001. +The first head of damage consisted of the liability to Whale View arising upon Kensland’s refusal to complete on 2 September 1997. Kensland knew full well on that very day that in doing so, it ran the risk of being held liable for breach of the agreement. That was what Ms Yeung was told by Mr Tang, even before Kensland decided to refuse the payment. This is not one of those cases where the plaintiff contracted a liability without having any inkling that this has occurred. +The risk of being held liable to Whale View was manifestly brought home to Kensland by TPY’s letter delivered later on 2 September and by Whale View’s writ issued the next day. The particulars of Whale View’s claim based on an implied term – essentially upheld in the Court of Appeal and in this Court – were set out in the Statement of Claim so that by 16 October 1997 Kensland knew in detail how it was at risk. +What Mr Scott’s argument actually amounts to is the contention that Kensland was not fixed with the required knowledge because it did not know for certain that liability for breach of the agreement would be established until the court declared that such was the position. But, as we have seen, knowledge as a certainty is not the standard. Rather, applying the objective standard developed by the courts regarding certainty of knowledge, one must ask at what point in time the potential for being held liable to Whale View would have been regarded by a reasonable person as sufficiently real to lead him to conclude that taking steps preliminary to the commencement of proceedings against TTC would be justified. +It is true that on 2 September 1997, Ms Yeung was being advised by Mr Tang that the risk was low. But on any objective assessment, the risk ought to have been seen as very significant. The precariousness of Kensland’s position is brought out by the plea in its Defence that a “reasonable time” for completion “is one hour.” Bearing in mind that Whale View had written on 2 September complaining that 1 hour and 15 minutes had insufficiently been allowed, Kensland’s defence rested on the slim margin of about 15 minutes. Concepts of “reasonableness” are obviously to some degree impressionistic and commonsense dictates that no one could be confident in drawing such a fine line to separate what would, from what would not, constitute a “reasonable time” in this context. +Moreover, whatever confidence might have been exuded in the advice received on 2 September, it is clear from the letter to counsel dated 14 November that, at least by then, Kensland fully appreciated that if it lost or admitted the other side’s case, an award of damages would be faced and was seeking advice as to its likely quantum. Additionally, the possibility that the advice received may have been wrong and that the advising solicitors may have been negligent must have occurred to Kensland when they saw Whale View joining TPY as alternative defendants in their writ. There can accordingly be no doubt that, so far as damage in the form of liability to Whale View was concerned, Kensland’s actual awareness was at an ample level of certainty and detail to qualify as knowledge within section 31. +Furthermore, as we have seen, Kensland’s case is not merely that it had suffered damage in the form of such liability. It also claims damages in respect of damage incurred by having to pay legal costs and in suffering the property’s fall in value. By 15 November 1997, Kensland knew that it had already incurred legal costs totalling $78,300.00 and that the property was “worth much less than HK$55 million”. There was no element of uncertainty or vagueness regarding such damage although the precise quantification of each head of loss was something for the future. As noted above, the need for quantification does not detract from the earlier accrual of the cause of action. Moreover, as previously noted, Kensland agreed with Whale View that its liability to pay interest should date from 3 September 1997. Additionally, in its own pleadings, Kensland crystallizes the loss in the value of the premises, presumably a matter within its own knowledge, in the sum of $17.98 million as at 19 May 1998, a date well before the start of the relevant three-year period. There was, in brief, nothing latent about the damage incurred. +F. Conclusion +Kensland plainly had actual knowledge about the relevant damage with a sufficient degree of certainty for section 31 purposes commencing on 2 September 1997. The damage and actual knowledge thereof were added to in the period leading to mid-November 1997 and supplemented further in the period up to 19 May 1998, all well before the secondary limitation period can make any difference. It is unnecessary to consider any imputed knowledge. Kensland’s case is that the damage flowed from its acting on TTC’s advice when it refused to complete the contract. It obviously knew that it was acting on such advice. It therefore knew that such damage was attributable to TTC’s acts and omissions representing the advice tendered. Kensland’s claim is accordingly, in my view, statute-barred and the appeal must be dismissed. +I would finally add that where a plaintiff’s reliance on section 31 is sought to be challenged in advance of the trial, this should generally be by trial of a preliminary issue so that all relevant evidence can be adduced and tested. As it happens, the materials available to the court in the present case were sufficient to allow the claim to be struck out in the exercise of the court’s inherent jurisdiction. However, even then, certain issues of possibly relevant fact were unresolved, such as why Kensland changed solicitors in December 1998 and on what basis the value of the property was said to have dropped by HK$17.98 million as at 19 May 1998. Issues such as these ought to be investigated, with oral evidence if necessary, on the trial of a preliminary issue. If the facts had been less unequivocal, adoption of the striking-out procedure would have involved a waste of time and costs since an arguable question of whether Kensland’s case was time-barred would have had to be examined afresh at the trial. +Mr Justice McHugh NPJ: +Kensland Realty Limited (in compulsory liquidation) (“Kensland”) appeals against an order of the Court of Appeal which ordered that Kensland’s action for damages for negligence against Tai, Tang & Chong (“TTC”), the respondent be dismissed. The first question in the appeal is whether Kensland’s action was commenced outside the six-year limitation period mandated by s.4 of the Limitation Ordinance, Cap. 347 (“the Ordinance”)? If it was, two further questions arise. First, when did Kensland know such facts about its damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify instituting proceedings? Second, when did it know that that damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence on the part of TTC? If Kensland first obtained knowledge of either of these two matters within three years of commencing its action against TTC, s.31 of the Ordinance entitled it to bring the action, despite the action otherwise being barred by s.4 of the Ordinance. +In my opinion, Kensland’s claim against TTC was barred by s.4 of the Ordinance, and it was not entitled to the benefit of s.31 of the Ordinance because, over three years before it commenced its action, it knew facts about its damage that would lead a reasonable person to conclude that the damage was sufficiently serious to institute proceedings against TTC and knew that that damage was attributable to the acts or omissions of TTC that it alleges constitute negligence. +The material facts +TTC were Kensland’s former solicitors who had advised Kensland on 2 September 1997 that it could lawfully terminate a contract for the sale of premises on the ground that the purchaser of the premises had tendered payment of the sale price after the expiration of the time for completion. +In June 1997, Kensland, which had agreed to buy shop premises from Delight Holdings Limited for HK$53 million, agreed to sell the premises to Whale View Investment Ltd (“Whale View”) for HK$55 million. The contract with Whale View had to be completed by 1 pm on 2 September 1997 at the offices of TTC. Under the contract, Kensland was entitled to direct how the balance of the purchase price was to be paid, and Whale View’s obligation to pay that balance was not discharged unless payment was made in the manner stipulated. On three occasions – the last on the morning of 2 September 1997, Whale View’s solicitors asked TTC for the breakdown of the cheques and the persons in whose favour they should be drawn. TTC did not answer any of the requests until 11:13 am on 2 September. And it was not until 11:48 am that Whale View’s solicitors were finally informed of the correct amounts to be paid to various parties. In all, eight cheques and two cashier’s orders were required to be drawn and paid. Realising that they would not meet the 1:00 pm deadline, the solicitors for Whale View asked TTC for an extension of time to complete, but TTC, after saying that it would seek instructions, did not contact the solicitors for Whale View before 1:00 pm. In the result, the solicitors for Whale View did not arrive with the required cheques and cashier’s orders until 1:06 pm. +According to para.15 of Kensland’s Statement of Claim in the present action, TTC spoke to a director of Kensland shortly after this time and informed her that Whale View’s solicitors had failed to complete the purchase in time and that this constituted a breach of a material term of the agreement. TTC advised her that, because Whale View had repudiated the contract, Kensland was entitled to rescind the contract and forfeit the deposit. TTC also informed her that Whale View might challenge the rescission and seek the return of the deposit but its chance of succeeding in an action for these purposes was very low. Relying on this advice, Kensland terminated the contract. +On the following day, Whale View commenced proceedings against Kensland in which it claimed that the rescission was invalid, that the Court should order specific performance of the contract of sale and that the Court should assess its damages. It registered the writ as a lis pendens against the property. Kensland was kept fully informed of the progress of the action and the allegations made in Whale Views pleading and the terms of Kensland’s Defence to the action. By November 1997 Kensland had been invoiced for HK$78,300 for the costs of defending the action brought by Whale View. +On 14 November 1997, Kensland instructed TTC to admit Whale View’s claims. It also sought counsel’s advice on the possibility of admitting those claims and requiring Whale View to complete the purchase. This turnaround was motivated by the fact that “the property is now worth much less than HK$55 million”. +The trial of the action came before Deputy High Court Judge Gill who held that Whale View had repudiated the contract and that Kensland was entitled to damages. However, on 23 January 2001, the Court of Appeal allowed an appeal against these findings and held that it was Kensland who had repudiated the contract. It ordered Kensland to repay the deposit of HK$8.25 million and damages of HK$8 million together with interest at the rate of 10.5% from 3 September 1997. On 10 December 2001, this Court upheld the orders of the Court of Appeal but for different reasons. It held that, in the absence of an express clause to the contrary, where a contract for sale contains a clause empowering the vendor to give a direction concerning the manner of payment, there is an implied term arising from business efficacy to the effect that, if a direction is given, it will allow the purchaser a reasonable time to do what has to be done to comply with the direction prior to the time for completion. This Court held that the direction given at 11:13 am did not allow Whale View reasonable time to complete by 1:00 pm. Accordingly, Kensland had breached the implied term. Furthermore, because a party to a contract cannot take advantage of its own breach and because Kensland’s breach was the direct cause of Whale View’s failure to complete in time, Kensland could not treat that failure as a ground for terminating the contract. To the contrary, Kensland’s failure to accept the tender at 1:06 pm was itself a repudiatory breach of the contract entitling Whale View to damages. +Over two years after this Court’s decision and almost three years after the Court of Appeal’s decision, on 13 January 2004 the liquidators of Kensland commenced an action for damages and interest thereon against TTC for negligent advice. Paragraph 19 of the Statement of Claim alleged that as a result of TTC’s negligent handling of Kensland’s affairs, it “has suffered damages”. Paragraph 21 gave “the particulars as to damages suffered by Kensland as the result of TTC’s negligent handling and advice concerning the sale and purchase of the property”: (1) HK$8 million, payable “as damages pursuant to the judgment of the Court of Final Appeal”; (2) HK$2,767,407.33, “paid by Kensland as legal fees”; and (3) HK$17,980,000, “being the diminution in value of the property following the non-completion of the sale”. +Paragraph 20 of the Statement of Claim pleaded six particulars of negligence. The first alleged that “TTC, for no good reason, failed to provide the instructions to [Whale View] within a reasonable time”. The second and third particulars alleged that TTC wrongly advised Kensland that Whale View’s late tender constituted a repudiation of the agreement and that instructions were given within sufficient time for the preparation of the cheques and cashier’s orders. The fourth particular alleged that TTC failed properly to review and consider the agreement, failed properly to advise on the basis thereof and in particular failed to advise that in law Kensland would not be entitled to take advantage of its own breach of the implied term. The fifth particular alleged that TTC failed to advise that, if Kensland’s delay in completion was due to its default, it would not be entitled to treat the agreement as repudiated. The sixth particular alleges that TTC failed generally to inform Kensland of the impact of the late instructions in the circumstances and failed to point out and advise fully of the risks involved in refusing to complete and of the very real risk of having to compensate Whale View. +On 26 May 2005, TTC issued a summons under RHC O.18 r.19 for an Order that the Statement of Claim be struck out on the ground that it was frivolous or vexatious or otherwise an abuse of the process of the Court. By a subsequent order, the parties were given leave to file and serve evidence in support of or opposition to the Orders sought. At first instance, Deputy High Court Judge Gill dismissed the Summons by TTC, but the Court of Appeal allowed an appeal by TTC and ordered that the action brought by Kensland be dismissed. Subsequently, this Court by a determination of the appeal committee gave leave to appeal against the order of the Court of Appeal. +The application to strike out +An order striking out a Statement of Claim, which is based on a limitation defence, can only be sustained if that defence is “manifestly and immediately destructive of the Plaintiff’s claim”: Ronex Properties v. John Laing Construction Ltd [1983] 1 QB 398 at 408A; Peconic Industrial Development Ltd v. Yu Ka Hong [2006] 4 HKC 406 at para.27. However, once a limitation defence is raised, the onus is on the plaintiff to prove that the cause of action relied upon accrued within the limitation period. In form, a limitation defence appears to be a defence of confession and avoidance. If it were, the onus of proof would lie on the party raising it. Indeed, the Full Court of the Supreme Court of Victoria has decided that, where the action concerns the occurrence of latent damage, the onus is on the defendant to plead and prove that the cause of action fell outside the period specified in the statute of limitations: Pullen & Another v. Gutteridge Haskins and Davey Pty Ltd [1993] 1 VR 27. But courts in the United Kingdom and this Court have taken the opposite view. They have insisted that, although the defendant must raise and plead the limitation defence, once the defence is pleaded, the onus is on the plaintiff to prove that the cause of action accrued within the limitation period: Darley Main Colliery Co. v. Mitchell (1886) 11 AC 127 at 135; Cartledge v. Jopling & Sons Ltd [1963] AC 758 at 784; London Congregational Union v. Harriss & Harriss [1988] 1 All ER 15 at 29; Bank of East Asia v. Tsien Wui Marble Factory (1999) 2 HKCFAR 349 at 384; Haward v. Fawcetts [2006] 1 WLR 682 at 688, HL. Accordingly, Kensland carries the burden of proving that its claim fell within the limitation period. +The Limitation Periods +(a) Section 4 +Section 4 of the Limitation Ordinance, Cap. 347 declares that an action founded on simple contract or tort “shall not be brought after the expiration of six years from the date on which the cause of action accrued”. +Kensland contended that its cause of action had been brought within the six-year limitation period specified in s.4 of the Ordinance. It pointed out that a cause of action in tort does not accrue until damage is suffered: Coburn v. Colledge [1897] 1 QB 702, CA. Moreover, the damage must be damage in a “real and substantial sense”: Bank of East Asia v. Tsien Wui Marble Factory (1999) 2 HKCFAR 349 at 385, 388 and 390. In the usual case of an action based on the negligent advice of a solicitor, the cause of action arises when the advice is acted upon: Forster v. Outred & Co. [1982] 1 WLR 86; D W Moore & Co. v. Ferrier [1988] 1 WLR 267. However, Kensland contended that this was not the usual case. It argued that the outcome of its action in acting on the advice of TTC was unpredictable and that it suffered no damage before the decision of the Court of Appeal on 23 January 2001. Only then, so Kensland argued, could it or anyone else know that it had suffered damage. Until then, its liability to pay damages was contingent, not actual. Kensland sought to reinforce the argument by pointing out that it had succeeded at first instance in the High Court. Hence, so Kensland argued, its damage had not occurred earlier than 23 January 2001. Consequently, it contended that it could have commenced the present action at any time before 23 January 2007, and the present action, which was commenced on 13 January 2004, was well within the six-year limitation period specified by s.4 of the Ordinance. +In the courts below, Kensland conceded that it suffered damage and its cause of action arose in September 1997 when it acted on the advice of TTC in refusing to accept the late tender of payment by Whale View. In this Court, however, it sought to withdraw the concession. TTC did not oppose the withdrawal provided that it could rely on an affidavit whose tender had been rejected by Deputy High Court Judge Gill because of the concession. Kensland did not oppose TTC tendering and relying on the affidavit in question. Because that is so and the question is one of law on undisputed facts, it is a proper case for the Court to exercise its discretion and allow Kensland to withdraw its concession, despite the disadvantage of not having the benefit of the judgments of the courts below on the point: Adams (Deputy Federal Commissioner of Taxation (Victoria)) v. Chas. S. Watson Pty Ltd (1938) 60 CLR 545 at 548. +In my opinion, however, the concession made by Kensland in the courts below was correct. A plaintiff suffers damage when that person incurs a liability to pay damages, and that is so even though the quantification of the damage is not then ascertainable: Wardley Australia Ltd v. State of Western Australia (1992) 175 CLR 514 at 536 per Brennan J cited with approval by Lord Nicholls of Birkenhead in Nykredit Mortgage Bank Plc v. Edward Erdman Group Ltd (No.2) [1997] 1 WLR 1627 at 1634 and by Lord Hoffmann in Law Society v. Sephton [2006] 2 AC 543 at 551. Thus, when a defendant’s negligent breach of a duty of care causes physical harm to the plaintiff or the plaintiff’s property, the defendant incurs a liability to pay damages from that moment. The time for bringing the plaintiff’s action runs from the moment that the plaintiff suffers damage. That the damage cannot be quantified, or is not known, at that moment is not relevant. If the plaintiff acquires a benefit at the same time as acquiring the liability, however, it may not be possible to determine whether the plaintiff has suffered damage until an adverse balance is struck between the benefit and the burden of the liability: Wardley Australia Ltd v. State of Western Australia (1992) 175 CLR 514 at 536 per Brennan J. Similarly, if the damages are not payable until the happening of a further event, the plaintiff’s liability is contingent only and damage is not sustained until the event occurs: Wardley Australia Ltd v. State of Western Australia. Personal guarantees are cases that usually fall within this category. +Paragraph 21 of Kensland’s Statement of Claim sets out three heads of damage that it incurred as the result of TTC’s breach of duty. They were the liability to pay the damages that Whale View ultimately received – HK$8 million, the loss that it suffered in the diminution of the value of the property following non-completion of the sale – HK$17,980,000 and the consequential loss of legal fees incurred – HK$2,767,407.33. In acting upon the advice of TTC, Kensland did not obtain any benefit from Whale View or TTC. So no question of balancing benefit and burden arises. It is true that both the fact of its liability and the quantification of that liability had to await a judicial determination. But once that determination was made, both the liability and its quantification were fixed as from the date when Kensland acted upon the advice of TTC – 2 September 1997. Whale View was entitled to damages and interest thereon as from that date, and Kensland’s damage was incurred as at that date. + In contending that it had suffered no damage before the Court of Appeal gave its decision, Kensland sought to rely on the decision of the High Court of Australia in Wardley Australia Ltd v. State of Western Australia (1992) 175 CLR 514. In Wardley, the High Court unanimously held that a claimant who had been induced by misleading conduct to give an indemnity did not suffer damage until it was called on to meet the indemnity. The Court rejected the argument that the indemnifier suffered damage on entering into the indemnity agreement. However in Wardley, the indemnifier did not, and could not suffer, damage until it was called on to make good the indemnity. Until that time, its liability to pay damages was contingent only because it might never be called on to indemnify the party indemnified. The principle of that case has no application to a case such as the present where the determination of liability and damages is dependent upon a judicial decision. Judicial decisions determine the rights and liabilities of parties as at the date when the facts giving rise to those rights and liabilities arose. If the contrary were true, no defence under limitation statutes could succeed. Nor is there any valid analogy between the situation in Wardley and the present case. The rights and liabilities of Whale View and Kensland were not fixed as at the date of the Court of Appeal’s decision or the date when this Court affirmed that decision. The Court of Appeal and this Court declared the rights and liabilities of Kensland and Whale View as they existed as at 2 September 1997, not January 2001 or December 2001. Neither the liability nor the damage suffered by Kensland arose on the handing down of those decisions which merely declared the pre-existing rights and liabilities of the parties. +Accordingly, Kensland’s damage was suffered on 2 September 1997. As from that date, it had a liability to pay damages and interest thereon to Whale View. It was liable to pay nominal damages for its breach of contract as at that date even if Whale View had not suffered any actual damage. The damage flowing from that breach increased as time passed and eventually included the three heads of damage to which I have referred. However, for the purposes of s.4 of the Ordinance, Kensland suffered its damage on 2 September 1997, the date on which Whale View’s cause of action for damages arose. The present action, having been commenced more than six years after 2 September 1997, is therefore barred by s.4 of the Ordinance unless the case falls within s.31 of that Ordinance. +(b) Section 31 +Section 31 of the Ordinance ameliorates the stringency of the operation of s.4. It provides: +“(1) This section applies to any action for damages for negligence, other than one to which section 27 applies, where the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both- +(a) the knowledge required for bringing an action for damages in respect of the relevant damage; and +(b) a right to bring such an action, +(referred to in this section as the ‘date of knowledge’) falls after the date on which the cause of action accrued. +(2) The period of limitation prescribed by section 4(1) in respect of actions founded on tort shall not apply to an action to which this section applies. +(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4). +(4) That period is either- +(a) 6 years from the date on which the cause of action accrued; or +(b) 3 years from the date of knowledge, if that period expires later than the period mentioned in paragraph (a). +(5) In subsection (1) ‘the knowledge required for bringing an action for damages in respect of the relevant damage’ (就有關損害而提出損害賠償訴訟所需的知悉) means knowledge- +(a) of such facts about the damage in respect of which damages are claimed as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment; +(b) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence; +(c) of the identity of the defendant; and +(d) if it is alleged that the act or omission was that of a person other than the defendant, of the identity of that person and the additional facts supporting the bringing of an action against the defendant. +(6) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (1). +(7) For the purposes of this section or section 33 a person’s knowledge includes knowledge which he might reasonably have been expected to acquire- +(a) from facts observable or ascertainable by him; or +(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek, +but a person shall not be taken by virtue of this subsection or section 33 to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.” +(c) The history of s.31 +Section 31 is based on s.14A of the Limitation Act 1980 (UK) which was enacted to overcome the deficiencies in the law that existed in cases of latent injury or damage. It applies only to actions for the tort of negligence; it does not apply to an action for breach of contract or misrepresentation: Societe Commerciale de Reassurance v. ERAS (International) Ltd [1992] 2 All ER 82; Laws v. Society of Lloyd’s [2003] EWCA Civ 1887. Judicial exposition of the section is best understood by reference to the history of limitation legislation in the United Kingdom which led to the enactment of 14A of the Limitation Act 1980 (UK) through the medium of the Latent Damage Act 1986 (UK). +The long journey to s.14A began with the decision of the House of the Lords in Cartledge v. Jopling & Sons Ltd [1963] AC 758 where the House held that a plaintiff who suffered pneumoconiosis as the result of the defendant’s negligence suffered damage as soon as he inhaled the noxious dust that caused the disease even though he did not become aware of the disease until long afterwards. Consequently, the House held that the plaintiff’s action was commenced after the expiration of the limitation period and his action was statute barred. +To overcome the injustice that arose from the decision in Cartledge v. Jopling & Sons Ltd [1963] AC 758, the United Kingdom Parliament enacted the Limitation Act 1963, whose meaning gave rise to controversy with various courts and judges interpreting it differently. In 1975, Parliament made a second attempt to cure the injustice that arose from Cartledge. To overcome the perceived ambiguities in the 1963 legislation, it enacted what later became s.14 of Limitation Act 1980, which was a consolidation Act. As will appear, decisions on s.14 of that Act have been influential in interpreting s.14A. +However s.14 was also deficient. It applied only to actions for damages consisting of or including personal injuries or death. It did not apply to actions for latent damage to property. Consequently, in Pirelli General Cable Works Ltd v. Oscar Faber & Partners [1983] 2 AC 1, the House of Lords held that, because the plaintiff suffered damage when cracks first occurred in the chimney of its factory even though the plaintiff did not discover the damage until seven years later, the plaintiff’s action was commenced after the expiration of the limitation period. Accordingly the House held that the action was statute barred. +To overcome the injustice that the decision in Pirelli General Cable Works Ltd exposed, the Parliament enacted the Latent Damage Act 1986 (UK) which inserted s.14A in the Limitation Act 1980. Although there are differences both in form and verbiage between s.14A and s.31 of the Ordinance, these differences are not material. Consequently, decisions of the United Kingdom courts on s.14A would normally be persuasive authorities on the meaning of s.31 of the Ordinance. +As often happens with a much litigated section, however, the United Kingdom courts now tend to apply the judicial exposition of s.14A rather than its words. Unfortunately, as I see it, the judicial exposition in the United Kingdom has so far not been notably successful. This Court is not bound by judicial expositions by Courts in other jurisdictions, no matter how eminent is the stature of those Courts. That reminder is particularly important when the issue concerns the meaning of a statute. It is the text of the enactment, not the judicial expositions on similar statutes in other jurisdictions, that is binding. My preference would be to disregard the dicta with which the equivalents of s.31 have become encrusted, except in so far as they are helpful in applying it in particular circumstances, and apply what is to me, at least, the reasonably clear intention of the legislative text. I would have preferred this Court to develop its own jurisprudence on s.31. However, the parties conducted their cases within the framework of the judicial exposition of the equivalents of s.31. Because that is so, it would not be proper on this occasion to look at the section, stripped clean of the judicial exposition on the statutory equivalents of s.31 in the United Kingdom. +However, it does not follow that this Court should automatically apply the United Kingdom decisions. Judges develop the common law and interpret statutes against a background of the social, moral, economic and political values and assumptions of the societies in which they work. Inevitably, these values and assumptions influence the development of the common law and the interpretation of legislative texts. But the values and assumptions of societies are not necessarily the same. This is the reason why the courts of former United Kingdom colonies have legitimately developed the common law of their countries so that it no longer retains its unity with the common law of the United Kingdom: Invercargill City Council v. Hamlin [1996] AC 624 at 640 – 644 per Lord Lloyd of Berwick. It is also the reason that identical legislative texts may legitimately have different interpretations in different countries even in those countries that have inherited the rule of law and their legal systems from the United Kingdom: Geelong Harbor Trust Commissioners v. Gibbs Bright & Co. [1974] AC 810 at 818 – 820 per Lord Diplock. +In interpreting s.14 and s.14A of the Limitation Act 1980 (UK), the United Kingdom courts have given those sections a restricted meaning with the result, as the great majority of the leading cases show, plaintiffs have difficulty in obtaining the benefit of those sections. Whether or not these restrictive interpretations reflect an underlying assumption that justice requires that defendants should not have to litigate stale claims, as may well be the case, it does not follow that this Court should slavishly follow the reasoning and dicta in the United Kingdom cases. Despite the parameters in which the parties litigated this case, the rational development of s.31 of the Ordinance requires this Court to depart from the reasoning and dicta of those cases when it is persuaded that their reasoning and dicta cannot be justified by the legislative text of s.31. +(d) The construction of s.31 +As the opening words of s.31 show, neither that section nor its UK counterpart is confined to cases of physical injury or physical damage. Cases of pure economic loss also attract the application of the section. In Haward v. Fawcetts [2006] 1 WLR 682 at 698, however, Lord Walker of Gestingthorpe warned that the “wide range of claims to which section 14A may extend suggests that general observations made by the court in one type of case may not be directly apposite in a case of another type”. Although, as reported cases on s.14A in the United Kingdom show, the section is sometimes difficult to apply in cases of physical injury or property damage, it is usually harder to apply in cases of economic loss. This is especially so when the provisions of s.31(5)(a) and (b) have to be applied to cases of economic loss resulting from a solicitor’s negligence, as in the present case. +Section 31(5)(a) is readily understandable and often easy of application when it has to be applied to the paradigm case of latent damage to property. In that case, it usually poses no difficulty to determine whether the plaintiff’s knowledge of “facts about the damage” would lead a reasonable person to consider the damage sufficiently serious to institute proceedings against a defendant who would not dispute liability. If the plaintiff knew that a chimney had cracks and also had constructive knowledge from “facts ascertainable by him with the help of appropriate expert advice”, s.31(7), that the chimney was liable to collapse, it is a simple matter of judgment as to whether a reasonable person would think those facts “sufficiently serious to justify his instituting proceedings”. Cases of latent physical injury may sometimes be more difficult of decision, but s.31(5)(a) also readily applies to them. The difficult cases are those of pure economic loss where the loss results from acting on professional advice. In cases concerning the professional advice of solicitors in particular, s.31(7) often does not have the scope for the operation that it has in other situations: see O’Sullivan, Limitation, latent damage and solicitor’s negligence 20 PN 218 at 219, 225. +The chief reason for this is that, in solicitors’ negligence cases, often there are no facts about the damage in any sense meaningful to a non-lawyer. It is legal advice or the lack of it in conjunction with facts in their ordinary sense that brings about the plaintiff’s damage in many cases concerned with a solicitor’s negligence. Without legal advice, facts – such as the contents of a document – may have no significance for the lay plaintiff. For example, a plaintiff who suffers damage because she executed a mortgage document with an “all moneys” clause in it may have no idea that she has suffered damage until she learns either from legal advice or the enforcement of the mortgage that she has suffered damage. And in such cases, it is the solicitor’s failure to give such advice that constitutes the case against him. It is unrealistic to conclude that, because a plaintiff had read or ought to have read the mortgage, that person knew the facts about the damage that he or she has suffered. As Janet O’Sullivan points out in Limitation, latent damage and solicitor’s negligence 20 PN 218 at 225: +“[I]n cases of solicitor’s negligence it is impossible to retain this sharp division between the facts and the law. At its simplest, the claimant’s case may be that he suffered damage as a result of incorrect advice about the law: he cannot know he has suffered damage unless he knows that the legal advice was incorrect. Or the claimant may have read a particular document revealing that he has suffered damage (and thus have knowledge of its contents), but may not have appreciated its meaning or its legal significance, primarily because his solicitor has not taken care to explain it to him. Or a solicitor may fail to give advice in circumstances in which the claimant, quite reasonably, does not appreciate that the solicitor owed her any duty of care at all. +In a nutshell, the problem once again is that the ‘the fact v law’ distinction was first enacted to solve a personal injury issue, more particularly the problem of claimants suffering from asbestos related industrial disease, who knew the facts of their injury and that it had been caused by their working conditions, but had not been advised that they had a cause of action against their employer. This wording was adopted wholesale for cases other than personal injury in the Latent Damage Act 1986, with no mention or discussion of it in the proceeding Law Reform Committee Report, and is, it will be suggested, wholly ill-suited to cases of solicitor’s negligence.” +But even if the fact v law distinction is glossed over, there are other problems. The “facts about the damage” in pure economic loss cases are often not observable or ascertainable by the plaintiff and, because it is often reasonable for the plaintiff to rely on the advice of the solicitor, it cannot be said that the plaintiff “might reasonably have been expected to acquire” knowledge of facts “with the help of appropriate expert advice” even if legal opinions and predictions concerning legal or curial events are treated as “facts”. Because of the reliance factor, it is also often difficult to determine whether the plaintiff had knowledge “that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence”. +The United Kingdom decisions +The similarities in the terms and purpose of s.14 and s.14A are such that the United Kingdom case law on s.14 assists in considering the meaning of the comparable or identical terms in s.14A. Indeed, the speeches in the House of Lords in the leading case of Haward v. Fawcetts [2006] 1 WLR 682 – a s.14A case – are replete with references to the case law on s.14. Because of the high similarity in the language of s.14A and s.31 of the Ordinance, the United Kingdom cases do give guidance on the meaning and application of s.31. But, as appears below, there are arguable difficulties in reconciling the judicial interpretation of the term “knowledge” with the text of the United Kingdom equivalents of s.31. +In Halford v. Brookes [1991] 1 WLR 428 at 443 – a decision on s.14 – Lord Donaldson MR said that the purpose of the section was “to determine a period of time within which a plaintiff can be required to start any proceedings”. In Broadley v. Guy Clapham & Co. [1994] 4 All ER 439 at 449, Hoffmann LJ agreed that this was the purpose of the section. And, in my view, it is also the purpose of s.14A and s.31 of the Ordinance. +As s.31(1) shows, the section is concerned with “the earliest date on which the plaintiff … had both … the knowledge required for bringing an action for damages in respect of the relevant damage; and … a right to bring such an action”. In the present case, it is common ground that Kensland had a right to bring the action. What is in dispute is whether it had the requisite knowledge. +The “knowledge required for bringing an action” means knowledge of the four matters specified in s.31(5). Time does not begin to run against the plaintiff for the purposes of the section unless that person had knowledge of those four matters: Dobbie v. Medway Health Authority [1994] 1 WLR 1234 at 1247 per Steyn LJ. If the plaintiff can establish that he or she did not have knowledge concerning any one of these matters until a date within three years of the commencement of his action in cases where the cause of action accrued more than six years before the action was commenced, the plaintiff obtains the benefit of s.31(4)(b). The legal onus is on the plaintiff to prove that he or she did not have knowledge of one or more of the matters in s.31(5) until a date within the three-year period in such cases. Forensically, however, the defendant will seek to show the opposite for the purpose of rebutting the plaintiff’s claim or, if possible, to establish positively that the plaintiff knew of each of the four matters more than three years before the commencement of an action that is otherwise statute barred. +In Halford v. Brookes [1991] 1 WLR 428 at 443, Lord Donaldson MR said that the term “knowledge” has to be construed in the context of the purpose of the section. His Lordship went on to say: +“In this context ‘knowledge’ clearly does not mean ‘know for certain and beyond possibility of contradiction.’ It does, however, mean ‘know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence.’ Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice.” +In Haward v. Fawcetts [2006] 1 WLR 682 at 685, Lord Nicholls of Birkenhead said that this statement of Lord Donaldson MR “gave valuable guidance” “as to the degree of certainty required”. “In other words”, Lord Nicholls said, “the claimant must know enough for it to be reasonable to begin to investigate further”. In Dobbie v. Medway Health Authority [1994] 1 WLR 1234 at 1240, Sir Thomas Bingham MR said that Lord Donaldson’s test was not hard to apply. It involved, he said, “ascertaining the personal injury on which the claim is founded and asking when the claimant knew of it”. +In Nash v. Eli Lilly & Co [1993] 1 WLR 782 at 792, Purchas LJ, in giving the judgment of the Court of Appeal, said that it did not intend to lay down a definition for the purposes of the statute which Parliament had “left to speak for itself”. However, he went on to say that knowledge: +“… is a condition of mind which imports a degree of certainty and that the degree of certainty which is appropriate for this purpose is that which, for the particular plaintiff, may reasonably be regarded as sufficient to justify embarking upon the preliminaries to the making of a claim for compensation such as the taking of legal or other advice.” +In Broadley v. Guy Clapham & Co. [1994] 4 All ER 439 at 449, Hoffmann LJ expressed a view similar to that of Lord Nicholls and said that the purpose of s.14(1) was: +“… to determine the moment at which the plaintiff knows enough to make it reasonable for him to begin to investigate whether or not he has a case against the defendant. He then has three years in which to conduct his inquiries and, if advised that he has a cause of action, prepare and issue his writ. Ordinarily it will suffice that he knows that the injury was caused by an act or omission of the defendant. But there may be cases in which his knowledge of what the defendant did or did not do is so vague and general that he cannot fairly be expected to know what he should investigate. He will also not have reached the starting point if, in an unusual case like Driscoll-Varley v. Parkside Health Authority, he thinks he knows the acts and omissions he should investigate but in fact he is barking up the wrong tree.” (emphasis in original) +The courts have taken a strict view of a plaintiff’s obligation to investigate. In Forbes v. Wandsworth Health Authority [1997] QB 402 the plaintiff had two operations on his leg which was subsequently amputated. Nine years later he consulted a solicitor who obtained an expert report which indicated that the leg could have been saved but for the negligent delay in carrying out the second operation. The Court of Appeal held that the claimant was fixed with constructive knowledge from about 12 to 18 months following the operation. Stuart-Smith LJ said (at 412): +“It seems to me that where, as here, the deceased expected, or at least hoped, that the operation would be successful and it manifestly was not, with the result that he sustained a major injury, a reasonable man of moderate intelligence, such as the deceased, if he thought about the matter, would say that the lack of success was ‘either just one of those things, a risk of the operation, or something may have gone wrong and there may have been a want of care; I do not know which, but if I am ever make a claim, I must find out.’ +In my judgment, any other construction would make the Act unworkable since the plaintiff could delay indefinitely before seeking expert advice and say, as the deceased did in this case, ‘I had no occasion to seek it earlier.’ He would therefore be able, as of right, to bring the action, no matter how many years had elapsed. This is contrary to the whole purpose of the Act which is to prevent defendants being vexed by stale claims which it is no longer possible to contest.” +Nothing in s.14, s.14A of the Limitation Act or s.31 of the Ordinance expressly refers to the investigation of a plaintiff’s case. But that requirement seems the inevitable construction of s.31(7) and its UK equivalents. The reference in that sub-section to “knowledge which he might reasonably have been expected to acquire … from facts observable or ascertainable by him; or … from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek” necessarily implies that the plaintiff will be fixed with facts whose observation or ascertainment can be determined objectively when they could reasonably have been obtained. And the words “which he might reasonably have been expected to acquire” imply a course of investigation by the plaintiff during which the plaintiff could be expected to observe or ascertain those facts. +But judicial statements about investigating whether the plaintiff has a claim or has a case or statements about beginning to investigate need to be read with care. They are relevant to the issue of constructive knowledge, not actual knowledge. They are concerned with the process by which the plaintiff becomes fixed with knowledge of facts that that person ought to have known. As will appear, I think that three of the Law Lords in Haward v. Fawcetts [2006] 1 WLR 682 overlooked this vital distinction and led them into error. The questions posed by s.31(5)(a) – (d) are required to be answered by the actual knowledge of the plaintiff as supplemented by the deemed knowledge of those facts that “he might reasonably have been expected to have acquired”. But questions about whether the plaintiff has or might have a claim or should embark on an investigation of the claim have nothing to do with answering the questions posed by those four paragraphs. Not only does s.31(7) exclude negligence as an issue but s.31(5)(a) is concerned only with the extent of the damage being sufficient to institute proceedings on the hypothesis that the defendant does not dispute his or her liability. +The knowledge of a plaintiff that is relevant for the purposes of s.31 is (1) his actual knowledge concerning the matters referred to in s.31(5)(a) – (d) and (2) the deemed knowledge of those matters that “he might reasonably have been expected to acquire” (i) from facts observable or ascertainable by him and (ii) from facts ascertainable by him with the help of appropriate expert advice which it was reasonable for him to seek. The Court is then required to make a judgment as to whether the combination of actual and deemed knowledge constitutes “knowledge” of those four matters. The fact that s.31(7) requires constructive knowledge to be taken into account means that the ultimate issue of knowledge does not depend on the mental state of the plaintiff. Knowledge for the purpose of s.31(5) is a legal construct consisting of the plaintiff’s actual knowledge and the deemed knowledge that is imputed to that person. Because that is so, to my mind, “knowledge” in s.31(5) simply means “awareness” or “recognition”. In dealing with each paragraph in that sub-section, the Court asks itself whether it was more likely than not that the plaintiff was aware of or recognised the existence of the matters specified in that paragraph. +Properly understood, I do not think that the statements of Lord Nicholls, Lord Donaldson MR, Purchas LJ or Hoffmann LJ to which I have referred were intended as an exhaustive description of the term “knowledge” in the United Kingdom equivalents of s.31(5). Rather they should be read as referring to the point in time when the plaintiff is required to find out more about bringing an action. In other words, they are directed to the s.31(7) situation; they are directed to the time when the plaintiff “might reasonably have been expected to acquire” (s.31(7)) further information about his or her case. If their Lordships had meant that a plaintiff had “knowledge” for the purpose of s.31(5)(a) – (d) as soon the plaintiff knew “enough for it to be reasonable to begin to investigate further”, the constructive knowledge provisions of s.31(7) would seem superfluous. It is hardly to be supposed that the plaintiff was to be fixed with knowledge of the facts referred to in s.31(7) before he had sufficient knowledge to require further investigation. If that is so, the point at which the plaintiff has “knowledge” for the purpose of s.31(5) cannot be the point at which it was reasonable for the plaintiff to investigate further. +Although a literal reading of what was said by Lord Nicholls, Lord Donaldson MR, Purchas LJ and Hoffmann LJ supports a contrary view, I do not think that their statements should be so read. It would mean that time would run against a plaintiff not from when he or she had knowledge of all the matters specified in s.31(5)(a) – (d) but from the time when the plaintiff should begin to investigate whether those matters were present and whether he or she had a valid or arguable claim. That seems contrary to what the legislature intended to be the case. +Knowledge “of such facts about the damage” – s.31(5)(a) +The first matter to which s.31(5) refers is knowledge “of such facts about the damage in respect of which damages are claimed as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment”. This paragraph draws a distinction between “the damage” and the “damages” that are claimed. It is knowledge of the “facts about the damage” that is relevant for the purpose of this paragraph, not knowledge of the damages that the plaintiff claims in the action. Section 31(5) also distinguishes between knowledge of “facts about the damage” in para.(a) and knowledge of “the damage” in para.(b). +It seems reasonable to conclude that “facts” in s.31(5)(a) include not only phenomena that are perceptible by or through the senses but also intellectual constructs such as systems, methods and expert opinions including predictions. Whether “facts about the damage” are “sufficiently serious” is a value judgment, and it is not to be supposed that the “reasonable person” of whom s.31(5)(a) speaks must always make that judgment unaided by expert advice as to the seriousness of the facts concerning that damage. It seems likely that s.31(7)(b), which refers to “facts ascertainable by him with the help of appropriate expert advice”, was enacted so that expert opinions that could reasonably be obtained would be considered in respect of the issues arising under s.31(5) whether the issue relates to the seriousness of damage under para.(a), attributability under para.(b) or identity under paras (c) and (d). Much expert advice consists of opinion, and there is no reason to confine the facts of which s.31(7) speaks to those physical phenomena that only the expert can see or identify and relate to the plaintiff. Section 31(5)(b), for example, raises the causal issue whether “the damage was attributable … to the act or omission which is alleged to constitute negligence”. In many cases, the issue of attributability is one on which expert opinion is required. Again, it is not to be supposed that the legislature intended this causal issue to be determined by reference only to the knowledge or judgment of a hypothetical reasonable person unassisted by expert opinion. Furthermore, I see no reason to confine opinions to past or current matters or events. In the context of the issues raised by s.31(5), there is no good reason for excluding “predictions” from the concept of “facts”. Suppose a plaintiff learns or could have learned from an expert: (1) that the cracking of a building was caused by defective foundations; (2) that the cracking is continuing; and (3) that the foundations are so defective that the building is likely to collapse. It would be astonishing if the legislature intended to exclude item (3) from the “facts” to be considered in determining whether the facts about the damage were sufficiently serious to justify proceedings. +Speaking generally, in cases concerning physical injury or property, the only issue under s.31(5)(a) is whether what is accepted as damage and was known to the plaintiff was sufficiently serious to justify instituting proceedings. As s.31(6) emphasizes, questions of whether any acts or omissions involve negligence is irrelevant to the s.31(5) issues, and s.31(5)(a) operates on the hypothesis that the defendant does not dispute that he is liable for the damage caused. Cases concerning economic loss, however, do raise difficult questions as to whether the plaintiff knew that he or she had suffered damage. Some cases of physical injury or property damage also raise questions as to whether the plaintiff knew that he or she had suffered damage. These cases raise the question whether bare physical facts alone constitute the existence of damage of which the plaintiff knew or whether the existence of damage requires an evaluation of those physical facts, an evaluation which will require either expert advice or the existence of an additional fact. The problem is illustrated by Dobbie v. Medway Health Authority [1994] 1 WLR 1234. +In Dobbie, the plaintiff had had an operation to remove a lump in her breast. Thinking that the lump was cancerous, the surgeon removed the whole breast without having the lump pathologically tested. In fact, the lump was benign, which the plaintiff learned shortly after the operation. Fifteen years passed before the plaintiff discovered that the surgeon should have had the lump tested before removing her breast. Dismissing her appeal against a lower court finding that the claim was statute barred, Sir Thomas Bingham MR said (at 1243): +“She knew of this injury within hours, days or months of the operation and she at all times reasonably considered it to be significant. She knew from the beginning that this personal injury was capable of being attributed to, or more bluntly was the clear and direct result of, an act or omission of the health authority. What she did not appreciate until later was that the health authority’s act or omission was (arguably) negligent or blameworthy. But her want of that knowledge did not stop time beginning to run.” +Beldam LJ said (at 1245): +“The injury in respect of which the plaintiff claims damages is the loss of her left breast and the severe psychological symptoms which followed. The act or omission of the defendant on which she relies is the act of the surgeon in removing the breast and the omission to carry out a test before doing so which would have indicated that the removal of her breast was unnecessary. +Thus the plaintiff had actual knowledge as required by section 14 within a few days of the operation being performed.” +The difficulty about this reasoning is that the damage that the plaintiff suffered was not the loss of her left breast, as Beldam LJ found. If the breast had been cancerous, its removal would have caused her no damage. No one could sensibly say that a person suffers damage when a cancerous growth is removed. The plaintiff’s damage was the loss of a healthy breast. Until she learned that her breast should not have been removed, she did not know “that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence”. The Court of Appeal subsequently recognised this in Hallam-Eames v. Merrett Syndicates [2001] Lloyd’s Reports PN 178 where Hoffmann LJ, giving the judgment of the Court, said (at 181): +“If one asks on common sense principles what Mrs Dobbie was complaining about, the answer is that the surgeon had removed a healthy breast. It would in our view be a seriously incomplete statement of her case to say that it was simply that the surgeon had removed her breast. This is not a matter of elaborating the detail by requiring knowledge of precisely how he had come to do the act complained of, such as this court rejected in Broadley. It was part of the essence of her complaint. Nor is it requiring knowledge of fault or negligence. The court’s emphatic rejection of such a requirement is entirely consistent with characterising the act complained of (and of which knowledge was therefore required) as the removal of a healthy breast. But the judge [ie in the present case], as it seems to us, has read Dobbie to mean that knowledge that the surgeon had removed her breast would have been enough. +If one asks what is the principle of common sense on which one would identify Mrs Dobbie’s complaint as the removal of a healthy breast rather than simply the removal of a breast, it is that the additional fact is necessary to make the act something of which he would prima facie seemed entitled to complain. She was suspected of having a cancerous lump and if this had been the case, the removal of the breast would not have been a matter for complaint.” +The analysis of Dobbie by Hoffmann LJ was directed at the United Kingdom equivalents of s.31(5)(b) “that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence”. The difficulty I have with the reasoning of the Court of Appeal in explaining Dobbie is that it re-writes the terms of s.31(5)(b). It substitutes the plaintiff’s complaint in a broad sense for the words “act or omission which is alleged to constitute negligence”. By referring to the “removal of a healthy breast”, the Court substituted a compound conception of s.31(5)(a) and s.31(5)(b). I would have thought it was the failure to test the lump in her breast that was relevantly the “act or omission” and that losing a healthy breast was “the damage”. Nevertheless, Lord Justice Hoffmann’s analysis indicates that Dobbie was wrongly decided on para.(a) of the UK equivalents of s.31. +In Haward v. Fawcetts [2006] 1 WLR 682 at 686-687, Lord Nicholls said the Court of Appeal in Dobbie had erred when it criticised the trial judge in that case for saying that the claimant had to have “broad knowledge of sufficient facts to describe compendiously (i) that her breast had been unnecessarily removed, (ii) that something had gone wrong”. Lord Nicholls said (at 687) that the essence of the claimant’s case in Dobbie was that “she had suffered injury by the removal of a healthy breast, that is, her breast had been removed unnecessarily and something had gone wrong. These were the acts and omissions she alleged constituted negligence. Under the statute, time did not begin to run until she knew of these acts or omissions. Until she was aware of these matters she could not know her injury was attributable to them”. Lord Nicholls said that he agreed with the observations concerning Dobbie that the Court of Appeal made in Hallam-Eames v. Merrett Syndicates [2001] Lloyd’s Reports PN 178 at 181. +These remarks of Lord Nicholls were also directed to the United Kingdom equivalent of s.31(5)(b) but they apply equally to the issue under s.31(5)(a). It may be that his Lordship did not think his analysis of Dobbie applied to the United Kingdom equivalent of s.31(5)(a), but this seems unlikely. In Haward v. Fawcetts [2006] 1 WLR 682 at 701, Lord Walker also agreed with the analysis by Hoffmann LJ of Dobbie. +In Dobbie, Sir Thomas Bingham MR had said that questions of evaluation do not enter into the question of a plaintiff’s knowledge in the United Kingdom equivalent of s.31(5)(a). After referring to Broadley v. Guy Clapham & Co. [1994] 4 All ER 439 and Nash v. Eli Lilly & Co. [1993] 1 WLR 782, Sir Thomas Bingham MR said [1994] 1 WLR 1234 at 1241H: +“These decisions are, I think, consistent with and supportive of the construction of the statutory language set out above, subject to one possible qualification. The requirement that the injury of which a plaintiff has knowledge should be ‘significant’ is in my view directed solely to the quantum of the injury and not to the plaintiff’s evaluation of its cause, nature or usualness. Time does not run against the plaintiff, even if he is aware of the injury, if he would reasonably have considered it insufficiently serious to justify proceedings against an acquiescent and credit-worthy defendant, if (in other words) he would reasonably have accepted it as a fact of life or not worth bothering about…” (my emphasis) +In Dobbie, Sir Thomas Bingham MR was construing s.14 which required knowledge “that the injury in question was significant”. The term “significant” does not appear in s.14A or s.31 but Lord Mance in Haward v. Fawcetts [2006] 1 WLR 682 at 717 and Chadwick LJ in 3M United Kingdom Plc v. Linklaters & Paines (A Firm) [2006] PNLR 543 at 553-554 took the view that Sir Thomas Bingham’s remarks were equally applicable to the United Kingdom equivalent of s.31(5)(a). In Haward, Lord Mance said (at 717): +“106 …Subsection (6) of section 14A distinguishes two aspects of the knowledge required. The first aspect relates to the seriousness of the damage, the second to ‘the other facts relevant to the current action’ including in particular that such damage was attributable in whole or part to the act or omission alleged to constitute negligence and the identity of the defendant. The seriousness of the damage is relevant because there may be cases where, although it is known that loss has been suffered due to the negligence of another person, the loss may appear for a time so minor that no one would contemplate instituting proceedings. That is I think more likely in the area of personal injuries and fatal accidents, covered by section 14 on which section 14A (7) - (10) were modelled, than in the area covered by section 14A itself. In both areas, the statutory language assumes that it is known that there has been some injury (under section 14) or damage (under section 14A). But this too can give rise to difficulty. If a doctor advises that it is necessary to operate, or to remove a breast, in order to remove a malignant tumour, one would not usually speak of the patient sustaining an injury until one knew that the diagnosis was misconceived and there was no such tumour. Similarly, if a financial adviser advises in favour of an investment, one would not describe the making of the investment itself as ‘damage’ until one discovered that it had been a bad or unsound investment from the outset. +107. In such cases, there is an interplay between knowledge of what would ordinarily be regarded as injury or damage and knowledge regarding the factual circumstances in which the operation or investment occurred. Yet, the first aspect of the knowledge required relates to damage of sufficient seriousness ‘to justify [the claimant] instituting proceedings’ … whereas the knowledge required regarding the attributability of such damage to some act or omission of the defendants is, as will appear, not necessarily such knowledge as to justify proceedings. To maintain a coherent scheme, the better view therefore appears to be to treat the first aspect of knowledge as relating solely to matters of quantum and all questions regarding the evaluation or classification of damage as such as falling within the second aspect of the knowledge required. This is also the view taken in the authority: see Dobbie v. Medway Health Authority [1994] 1 WLR 1234, 1241 - 1242, per Sir Thomas Bingham MR.” +These passages were cited by Chadwick LJ in 3M United Kingdom Plc v. Linklaters & Paines (A Firm) [2006] PNLR 543 at 553-554. +No doubt s.31(5)(a) and its United Kingdom equivalents are directed solely to the issue of quantum (how serious is it?) but it does not follow that, in determining that issue, evaluation of the nature of the damage is irrelevant. One must first identify the damage before one can assess the quantum issue, and evaluation of facts may be necessary in determining whether damage has been suffered. +The difficulty of determining the issue of a plaintiff’s knowledge of damage in a solicitor’s negligence case is illustrated by Bowie v. Southorns [2003] PNLR 135. It also shows that the United Kingdom courts meet this difficulty by looking at the issue of “facts about the damage” in very broad terms. In 1988, the claimant and her husband had executed a charge in favour of a bank over their matrimonial home to secure the husband’s business debts. Although a partner in the defendant firm of solicitors had signed an attestation clause confirming that he had explained the charge to the claimant, she alleged in an action brought in 2001 against that firm for negligence that he had not done so. She further alleged that she did not believe that the solicitor was acting for her in 1988 and, although she had consulted solicitors and counsel in 1992 when she had unsuccessfully defended possession proceedings brought by the bank, she was not told that she might have an action against the defendant firm. Nelson J held that the action against the defendant firm was statute barred. He found (at 148) that the plaintiff knew that she had signed the legal charge over her home which secured repayment of some of the husband’s debts, that, when the bank commenced proceedings for possession, she knew there was a risk she might lose the home, that she thought that the solicitor acted for her husband’s business, that he had not explained the nature of the charge to her before she signed it, that she knew that the attestation clause was false and that she would not have signed the charge if he had explained what the document meant for her. His Lordship said (at 152): +“What is required is that the claimant must have in broad terms knowledge of the facts on which her complaint is based. She does not in my judgment have to know how a claim in damages might be presented by the lawyers. If she knows that she has suffered damage or loss or potential damage or loss that is sufficient … Here [the plaintiff] knew that there was a risk that she might lose her home, that that risk would become a reality if the bank succeeded in its action, and that that loss arose from her signing a legal charge which, if [the solicitor] had explained it to her properly, she would not have signed. I am satisfied on the evidence that she had this knowledge by November 1992. She did not need expert advice in order to have that knowledge which was in my judgment sufficient to lead her to the view, after the bank had commenced possession proceedings, that she had suffered damage such as to consider it sufficiently serious to justify the institution of proceedings. I am further satisfied that on the facts as I have found them, she knew that the damage was attributable in part to [the solicitor’s] failure to explain the charge to her, as but for that failure she would not have entered into the transaction.” (my emphasis) +Just as in Dobbie, “an additional fact” was necessary to convert the facts that the plaintiff knew into “damage”, so, in Bowie v. Southorns, it is difficult to see how the bare facts that Mrs Bowie knew constituted knowledge of “facts about the damage” unless there was added an element of legal knowledge, an element that did not exist until 2000. As Janet O’Sullivan points out in her comment on that case (Limitation, latent damage and solicitor’s negligence 20 PN 218 at 238): +“Unfortunately, justifying the result by reference to attribution in ‘broad terms’ does not explain how the solicitor’s omission to explain the charge to the claimant makes her damage attributable to the omission - unless you add that the solicitor was under a duty to her, he stands in the same position as ‘everyone else in the world’ who gave no advice about the charge!” +However, not all cases concerning a solicitor’s negligence raise difficult questions concerning the plaintiff’s knowledge of damage in the context of s.31(5)(a). In 3M United Kingdom Plc v. Linklaters & Paines (A Firm) [2006] PNLR 543, three related companies who were members of the 3M corporate group, held leases expiring in 2012. Each lease contained a break clause, personal to the tenant, which allowed the tenant at a price to determine the lease on one year’s notice ending on 4 December 1997. As part of restructuring the group in 1989, the defendant solicitors drafted assignments of the leases without noticing that the break clause in each lease was personal to the tenant. The loss of the right to terminate came to the knowledge of the group’s in-house lawyer during negotiations on 30 August 1995 for an extension of the break date to 31 March 2001. The landlord took the point that the option to terminate could no longer be exercised as a result of the assignments, and 3M lost the opportunity to move its operations penalty free to new premises it had obtained. The 3M companies did not commence their action against the solicitors until 1999 but it was agreed that it should be treated as started on 1 September 1998. +The Court of Appeal held that the action was statute barred. The Court rejected the argument that 3M did not know that it had suffered damage before 1 September 1995 because it did not know until after that date that the landlord could and would rely on the fact that the option had been lost which was knowledge acquired after 1 September 1995. Chadwick LJ said that the damage to the plaintiff was the loss of the options when the leases were assigned in 1989. He said (at 557) that it was impossible to contend that, because the landlord had agreed in principle to defer the options before 30 August 1995 when it thought that they were exercisable in 1997 it could be taken as an indication that it would be willing to affirm the agreement in principle once it knew the options were not exercisable. His Lordship said (at 557): +“The true position on August 30, 1995, as the judge appreciated, was that the claimant companies…well knew what they had lost by the assignments in 1989. And they knew that that loss was serious, unless the problem could be solved. The hope that [the landlord] would not receive informed advice as to the strength of its position has not been advanced: there could be no basis for a suggestion that the landlord would not be properly advised by its solicitors. The hope that there could be a solution to the problem by negotiation was founded on sand: there was no basis for negotiation.” +The foregoing discussion shows that there are difficulties in applying s.31(5)(a) in some cases, particularly when the case concerns a solicitor’s negligence and more so when it concerns a negligent omission. There is also, as I have indicated, judicial support for the view that s.31(5)(a) is concerned solely with quantum and does not concern itself with “questions regarding evaluation or classification of damage”, a view which I think is erroneous. +The questions under s.31(5)(a) aided by s.31(7) then are: +when did the plaintiff know enough to make it reasonable for him to begin to investigate whether or not there are other facts that are relevant to the issues under that paragraph; +what facts about the damage did the plaintiff actually know with or without that investigation; +what facts about the damage should the plaintiff have known by reason of the hypothetical investigation; and +would the plaintiff’s actual or constructive knowledge of facts about the damage have led a reasonable person to consider that they were sufficiently serious to justify instituting proceedings against the defendant on the assumption that the defendant did not dispute liability and would meet a resulting judgment? +Section 31(5)(a) and the present case +Whatever difficulties may be present in some cases in determining whether the plaintiff had knowledge of the “facts about the damage” for the purpose of s.31(5)(a), no difficulties arise in this case. Paragraph 19 of the Statement of Claim alleged that as a result of TTC’s negligent handling of Kensland’s affairs, it “has suffered damages”. Paragraph 21 gave “the particulars as to damages suffered by Kensland as the result of TTC’s negligent handling and advice concerning the sale and purchase of the property”: (1) HK$8 million, payable “as damages pursuant to the judgment of the Court of Final Appeal”; (2) HK$2,767,407.33, “paid by Kensland as legal fees”; and (3) HK$17,980,000, “being the diminution in value of the property following the non-completion of the sale”. +Kensland almost certainly did not know the quantum of this damage until the litigation against Whale View had concluded. But it knew each of the three heads of damage that are the basis of its claim for damages no later than the end of November 1997. It knew on 3 September 1997 that it was being sued for specific performance of the contract and for damages as the result of acting on the advice of TTC that it could terminate the contract for the sale of the premises. By November 1997, it had been required to pay HK$78,300 to defend the action brought by Whale View. On 14 November 1997, it sought counsel’s advice on the possibility of admitting Whale View’s claim because “the property is now worth much less than HK$55 million”. Thus, by the end of November 1997, it knew each of the three heads of damage that now form the basis of its action for damages against TTC, and these three heads of damage are “the facts about the damage” that are relevant for the purpose of s.31(5)(a). +Kensland’s knowledge of these heads of damage then raises the question whether they would lead a reasonable person to consider them sufficiently serious to justify his instituting proceedings for damages against TTC. Section 31(5)(a) does not make time run when a plaintiff knows “the damage”; it makes it run when the plaintiff knows “the facts about the damage” which would lead a reasonable person to conclude that proceeding are justified. On this aspect of the present case, it is not even necessary to adopt the approach of Nelson J in Bowie v. Southorns [2003] PNLR 135 and look at the facts about the damage in “broad terms” or look at the “potential damage or loss”. No later than the end of November 1997, Kensland had knowledge of the specific facts concerning the damage which is the subject of its damages claim. +Given the hypothesis upon which s.31(5)(a) proceeds – that the defendant does not dispute its liability and is able to satisfy a judgment against it – there can be no doubt that a reasonable person would have considered the facts about the damage in this case sufficiently serious to justify instituting proceedings by the end of November 1997. As I have indicated, this paragraph is concerned with quantum. What it requires is the judgment of a reasonable person as to whether the facts about the damage are sufficiently serious and therefore the likely amount of damages recoverable sufficiently large to justify bringing an action against a defendant who will not be disputing that he is liable for the damage and can satisfy the judgment obtained. Thus, the s.31(5)(a) issue in the present case must be decided on the basis that TTC did not dispute its liability to Kensland for damages for the three heads of damage which is the basis of its damages claim. Each of those heads of damage was substantial and exposed Kensland to a liability to pay large sums of money to Whale View. To my mind, there can be no doubt that in these circumstances a reasonable person would regard the facts about the damage sufficiently serious to justify proceedings against a hapless defendant who cannot dispute its liability and can satisfy the judgment against it. +Accordingly, in my opinion by the end of November 1997, Kensland had the relevant knowledge for the purpose of s. 31(5)(a). +Section 31(5)(b) +Section 31(5)(b) raises the issue whether, by reason of actual or constructive knowledge or both, the plaintiff knew “that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence”. It is necessary that the plaintiff know the act or omission that allegedly constitutes negligence, but the plaintiff does not need to know “that, as a matter of law, such act or omission involve negligence”: Haward v. Fawcetts [2006] 1 WLR 682 at 719 per Lord Mance. As I earlier indicated, this paragraph concerns “the damage” as opposed to para.(a)’s concern with the “facts about the damage”. +If one simply examined the terms of s.31 and its United Kingdom equivalents, the meaning of s.31(5)(b) would seem clear enough. By reason of the provisions of s.31(6), all that s.31(5)(b) requires is for the Court to identify the damage and the act or omission alleged to constitute negligence and ask whether the plaintiff had knowledge that the damage was attributable to that act or omission without its negligent quality. Unfortunately, as I see it, the clear meaning of the paragraph has become encrusted with judicial dicta that have substituted judicial exposition for the meaning of the paragraph. One of the best known expositions of the paragraph is found in the judgment of Hoffmann LJ in Hallam-Eames v. Merrett Syndicates [2001] Lloyd’s Reports PN 178 when he explained the operation of the United Kingdom equivalent of s.31(5)(b). He said (at 181): +“In other words, the act or omission of which the plaintiff must have knowledge must be that which is causally relevant for the purposes of an allegation of negligence… It is this idea of causal relevance which various judges of this court have tried to express by saying the plaintiff must know the ‘essence of the act or omission to which the injury is attributable’ (Purchas LJ in Nash v. Eli Lilly & Co [1993] 1 WLR 782, 799) or ‘the essential thrust of the case’ (Sir Thomas Bingham MR in Dobbie [1994] 1 WLR 1238) or that ‘one should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had in broad terms knowledge of the facts on which that complaint is based’ (Hoffmann LJ in Broadley [1993] 4 Med L R 328, 332).” +Lord Scott cited this passage with evident approval in Haward v. Fawcetts [2006] 1 WLR 682 at 695, as did Lord Walker at 700-701. In the same case, Lord Nicholls cited with approval the above passage in the judgment of Hoffmann LJ in Broadley v. Guy Clapham & Co. [1993] 4 Med L R 328, 332. +The various tests to which Hoffmann LJ refers represent, with great respect to those that have formulated them, a departure from the statutory text. What s.31(5)(b) and its United Kingdom equivalents require is knowledge “that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence”. They do not require knowledge of the “essence of the act or omission”, “the essential thrust of the case” or “in broad terms knowledge of the facts on which that complaint is based”. They require identification of the “act or omission” that the plaintiff says is negligent. And the inference to be drawn from s.31(6) is that the “act or omission” must be stripped of its negligent quality. If the plaintiff says that he was negligently advised, the act or omission is the advising. The issue under para.(b) then becomes when, as in Haward v. Fawcetts [2006] 1 WLR 682, whether the plaintiff knew that the loss of money invested (the damage) was attributable to that advising. If the plaintiff says that she lost a healthy breast by reason of the surgeon’s negligent failure to test the lump to see whether it was cancerous before removing it, as in Dobbie v. Medway Health Authority [1994] 1 WLR 1234, the issue becomes when the plaintiff knew that the loss of her breast was attributable to not testing the lump to see whether it was cancerous before it was removed. +Three cases illustrate the operation of para.(b) in the United Kingdom. The first is Broadley v. Guy Clapham & Co. [1994] 4 All ER 439 where the plaintiff sued her solicitor for negligence in failing to commence an action for negligence against Mr Lowy, a surgeon, who had operated on her to remove a foreign body from her knee. As a result of the operation – which took place in August 1980 – the plaintiff “had left foot drop”. In June 1983, she consulted the defendant who arranged for her to see another orthopaedic surgeon who told her that the operation on her knee might have been negligent, but the solicitor did not receive a report from that surgeon and he did not issue a writ against Mr Lowy. It was not until 17 August 1990 that the plaintiff issued her writ against the defendant for negligence. The solicitor defended the action by asserting that, if he was negligent, it caused the plaintiff no damage because her claim against Mr Lowy was barred by the Limitation Act when the alleged negligence occurred. Hence, as Balcombe LJ said (at 442) “the plaintiff’s cause of action against the defendant is barred if her knowledge of her cause of action against Mr Lowy and the hospital existed before 19 August 1981”. Strictly speaking, knowledge of a cause of action was not the issue. At first instance, Turner J found (at 442 – 444) that, by reason of the plaintiff’s actual and constructive knowledge, she knew before the relevant date in August 1981 all the matters to which the United Kingdom equivalent of s.31 refer. The Court of Appeal affirmed his decision. +Hoffmann LJ said (at 449): +“In this case the plaintiff knew, or could have known with the help of the medical advice reasonably obtainable, that her injury had been caused by damage to the nerve resulting from something which Mr Lowy had done or not done in the course of the operation. In my judgment this was all the knowledge or imputed knowledge which she needed to have.” +With respect, this decision and this reasoning seem plainly correct. Broadley and the facts in Forbes to which I earlier referred illustrate how the operation of s.31(7) with its constructive knowledge provisions works smoothly in most physical injury cases. +The second case is the leading case of Haward v. Fawcetts [2006] 1 WLR 682 where, on 9 December 1994, relying on the advice of Mr Austreng, a partner in a firm of accountants, the claimants acquired a controlling interest in a company. In addition, one of the claimants acquired the freehold of the company’s leased premises for ₤100,000. Mr Austreng also forecast that, by investing about another ₤100,000, the company would be brought to reasonable profitability during 1995. However, although the claimants invested further substantial sums in the company in 1995, 1996, 1997 and 1998, it failed to become profitable. In 1998 the first claimant asked a specialist in corporate rescues to investigate the company’s losses. On 6 December 2001 the claimants brought an action against the accountants for professional negligence. The House of Lords unanimously held that, before 6 December 1998, the claimants knew with sufficient confidence that the damage was attributable to the acts or omissions of the accountants. That was because they knew in broad terms the facts on which their complaint was based and of the accountants’ acts or omissions and knew that there was a real possibility that those acts or omissions had been the cause of the damage they had suffered. +I must confess that there are parts of the reasoning in Haward which I find puzzling and which supports the comment of counsel for TTC – who relied on the decision - that their Lordships have put a “gloss” on the statute. I think that some of the difficulties that I have with these parts of the reasoning arise from some of their Lordships equating “knowledge” with knowing enough to require further investigation. I have already set out the reasons why that cannot be so, and I need not to repeat them. The remaining difficulties that I have with parts of the reasoning is the re-writing of the equivalent of s.35(1)(b), a point to which I earlier referred. +Lord Nicholls said (at 688) that the conduct alleged to constitute negligence “was the giving of flawed advice”. He went on to say: +“20 …This feature is the very essence of [the first claimant’s] claim. Stated in simple and broad terms, his claim is that Mr Austreng did not do his job properly. Time did not start to run against [the first claimant] until he knew enough for it to be reasonable to embark on preliminary investigations into this possibility. +21. There may be cases where the defective nature of the advice is transparent on its face. It is not suggested that was so here. So, for time to run, something more was needed to put [the first claimant] on inquiry. For time to start running there needs to have been something which would reasonably cause [the first claimant] to start asking questions about the advice he was given.” +Lord Nicholls said that the claimants had the burden of proving that they were not put on inquiry until after 6 December 1998 but had not attempted to discharge this burden. Accordingly, their claim for an extension of the limitation period failed. +With great respect, I find two features of this reasoning difficult to accept. The first is the reference to being put on inquiry. In Haward, the accountants did not rely on the claimants’ constructive knowledge, as Lord Nicholls acknowledged. So no question of investigation or inquiry arose. It follows that the reference to start asking questions or an inquiry was irrelevant. Because the accountants did not contend that the claimants had constructive knowledge of any facts, the only issue was whether, on the facts actually known to the claimants, they had knowledge of each of the four matters referred to in the United Kingdom equivalent of s.31(5). Of those four matters, the only live issue concerned whether before 6 December 1998 they knew “that the damage was attributable in whole or in part to the act or omission” that constituted the alleged negligence. If they had that knowledge, their claim was barred. Lord Nicholls did not address the issue posed by the United Kingdom equivalent of s.31(5)(b) in these terms. Instead of asking whether the claimants knew that Mr Austreng had advised investment in the company (which was the relevant act or omission when stripped of its negligent quality), his Lordship asked whether [the first claimant] “knew enough for it to be reasonable to embark on preliminary investigations into this possibility”. That was a question that would be relevant if constructive knowledge was an issue in Haward, but it was not an issue in that case. The second feature is the characterization of the act or omission as flawed advice. In substance, that seems to reintroduce by another name the element of negligence which the United Kingdom equivalent of s.31(6) renders irrelevant. +With great respect, and independently of this last point, what his Lordship did in Haward was to apply the process for ascertaining facts that are imputed to the plaintiff’s store of knowledge to a case where facts constructively known were not an issue. +Lord Scott said (at 696) that the damage that the claimants had suffered “was the making of a bad investment”. He went on to say (at 696) that the essence of the claimant’s complaint against the accountants was that they did not give them the advice that the true state of the company’s affairs warranted and that, if given, would have warned them against the disastrous investment of their money. Lord Scott said (at 697) that the first claimant knew what advice had been given and what advice had not been given by the accountants. He “knew by 6 December 1998 that the true financial state of the company had required, if the company were to keep trading, the very substantial additional investment that had to be made, and was made, to cover the losses incurred in the years 1995, 1996 and 1997”. Lord Scott said that the trial judge had summed up the situation accurately and in accordance with the requirements of the United Kingdom equivalent of s.31 when he said: +“it is the basis of [the claimants] claim that [the accountants] advised ongoing investment and it is hard to see how [the first claimant] could have failed to appreciate that he was spending money either on their advice or without their advice. So far as [the first claimant] was concerned, there was nothing of a factual nature that was latent; all was patent. The only thing that he did not know was that [the accountants] had been, as he now alleges, negligent or that he had a claim against them but such matters are irrelevant.” +With respect, I think that Lord Scott’s and the trial judge’s approach was the correct one. The damage was the loss of the moneys invested, and the “act or omission” was the advice that was given or not given. +Lord Walker also thought that, although the trial judge’s judgment was “not without some defects and difficulties”, he “was basically right in his overall conclusion”. +Lord Brown said (at 710): +“90. What the claimant must know to set time running is the essence of the act or omission to which his damage is attributable, the substance of what ultimately comes to be pleaded as his case in negligence. That essence or substance here could no doubt be characterised in either of two ways: either as the act of recommending investment in the company (or omitting to caution against it - on the particular parts of this case these are two sides of the same coin), or, with greater particularity, the act of recommending investment without first carrying out the investigations necessary to justify such positive advice. Having at first preferred the latter characterisation, I have come to prefer the former. True, under the former the claimant knows nothing beyond the fact that his advisers led him into what turned out to be a bad investment; he does not know, as under the latter characterisation he would, that he has a justifiable complaint against his advisers. But he surely knows enough (constructive knowledge aside) to realise that there is a real possibility of his damage having been caused by some flaw or inadequacy in his advisers’ investment advice, and enough therefore to start an investigation into that possibility, which section 14A then gives him three years to complete. +91. If the other approach is adopted, time only starts to run once the claimant recognizes that a fuller examination of the company’s prospects should have been carried out than was in fact carried out, knowledge which [the first claimant] only learned here at some unascertained date after the investigation into [the accountants] conduct had itself begun in an May 1999 (when another accountant first suggested to [the first claimant] that a negligence claim might lie against [the accountants]). But what if that suggestion and the investigation which it prompted had themselves been made at a later date still, perhaps very substantially later? On this approach the limitation period would appear capable of almost limitless extension and for no sufficient reason…” +With great respect, for the reasons that I gave in discussing Lord Nicholl’s speech, I find part of the reasoning in these paragraphs puzzling. Because the claimants did not have constructive knowledge of any facts, the only issue was whether, on the facts known to them, they knew before 6 December 1998 “that the damage was attributable in whole or in part to the act or omission” that constituted the alleged negligence. Lord Brown held that, for the purpose of the United Kingdom equivalent of s.31(5)(b), the claimant had that knowledge although he knew “nothing beyond the fact that his advisers led him into what turned out to be a bad investment”. Earlier, Lord Brown had said (at 709) that “[g]iven, however, that [the accountants] case is based solely on [the first claimant’s] actual knowledge, to my mind it must fail if anything more is required than that [the first claimant] knew that his loss might well have resulted from an investment made on [the accountants’] advice”. With respect, this analysis of the relevant act or omission was correct. +However, his Lordship then went on to comment that “he surely knows enough (constructive knowledge aside) to realise that there is a real possibility of his damage having been caused by some flaw or inadequacy in his advisers’ investment advice, and enough therefore to start an investigation into that possibility, which s.14A then gives him three years to complete”. In Haward, the accountants did not rely on the claimants’ constructive knowledge. So no question of investigation arose, and the reference to the starting of an investigation seems irrelevant unless Lord Brown is speaking hypothetically of a case whose facts are similar to those in Haward. Having correctly identified the relevant act or omission, I find it difficult to see why his Lordship thought that the case turned on the issue of investigation. The claimants either had knowledge of that act or omission or they did not have it. Lord Brown’s reasons show that they had that knowledge. That, in my opinion, was enough to defeat their claim. +Lord Mance, like Lord Nicholls, saw the issue as being when the first claimant knew enough to make it reasonable for him to investigate whether the claimants had a case against the accountants. Lord Mance said (at 725): +“The question is when [the first claimant] actually knew both enough of the acts or omissions now alleged to constitute negligence and that the loss suffered was capable of being attributable thereto to make it reasonable for him to begin to investigate whether or not the claimants had a claim against [the accountants]. That would be the case, taking the reasoning in Hallam-Eames’s case, once he realised that he had prima facie cause to complain of unsoundness from the outset of the investments; this would in turn suggest unsoundness in the advice given or not given by [the accountants]. In relation to the issue raised by this question, the onus was on the claimants. It was for the claimants to displace the basic limitation period by showing, if they could, that [the first claimant] did not have the requisite knowledge prior to 6 December 1998.” +Lord Mance went on to hold (at 728) that the claimants had not discharged the onus that lay on them. Lord Mance’s approach was similar to that of Lord Nicholls and, with respect, open to the same criticism. Perhaps the source of his Lordship’s error was reliance on Hallam-Eames which turned on the potential availability of constructive knowledge. +Thus, the reasoning of three of their Lordships is predicated on the assumption of a need to find that it was reasonable for the claimants to have begun an investigation. As I have indicated, this was not an issue in a case where constructive knowledge of facts was not a relevant issue. It also led to the curious conclusion that time ran against the claimants not from when the claimants had knowledge of the four matters specified in s.14A but when they should have commenced to investigate those matters. +Fortunately, as will appear, the present appeal can be disposed of without the necessity of invoking the reasoning of the House of Lords in Haward. Whether this Court should apply that reasoning should be left for another day. Indeed, it is unlikely that future courts will need to apply its ratio decidendi and principal reasoning, helpful as much of its dicta is. That is because much of what their Lordships said would be applicable in cases where constructive knowledge was in issue, which it was not in Haward. +The third case is Hallam-Eames v. Merrett Syndicates [2001] Lloyd’s Reports PN 178 which shows the difficulty of striking out a statement of claim on the basis of the plaintiff’s knowledge when the facts known or imputed to the plaintiff are not clearly admitted or established. The claimants in that case were Lloyd’s Names who suffered losses when syndicates of which they were members became liable to meet a number of large claims. The defendants contended that all the plaintiffs could reasonably have been expected to acquire the knowledge required for bringing an action in respect of the relevant damage from documents that had been sent to them or their agents more than three years before the issue of the first group. The issue for decision was whether they knew that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence. At first instance, Gatehouse J found that the documents supplied would have told the Names that they had suffered losses sufficiently serious to justify instituting proceedings and struck out the Names actions. However, the Court of Appeal held that the Gatehouse J had “unduly restricted the facts which s.14A(8)(a) [the equivalent of s.31(5)(b)] requires to be known and the material before him did not enable him or this court to decide … as a preliminary issue that the plaintiff’s claims was statute barred”. +Section 31(5)(b) in the present case +The issue in this case under s.31(5)(b) is whether Kensland knew that the damage it suffered “was attributable in whole or in part to the act or omission which is alleged to constitute negligence”. As I have indicated it knew the heads of damage that are the basis of its action against TTC. Paragraph 20 pleaded six particulars of negligence. The first alleged that “TTC, for no good reason, failed to provide the instructions to [Whale View] within a reasonable time”. The second and third particulars alleged that TTC wrongly advised Kensland that Whale View’s late tender constituted a repudiation of the agreement and that instructions were given within sufficient time for the preparation of the cheques and cashier’s orders. The fourth particular alleged that TTC failed properly to review and consider the agreement, failed properly to advise on the basis thereof and in particular failed to advise that in law Kensland would not be entitled to take advantage of its own breach of the implied term. The fifth particular alleged that TTC failed to advise that, if Kensland’s delay in completion was due to its default, it would not be entitled to treat the agreement as repudiated. The sixth particular alleged that TTC failed generally to inform Kensland of the impact of the late instructions in the circumstances and failed to point out and advise fully of the risks involved in refusing to complete and of the very real risk of having to compensate Whale View. +So the question under this part of the case is whether Kensland knew before 13 January 2001 that its liability to pay damages to Whale View was attributable in whole or in part to each of these six particulars of negligence. Kensland bears the onus of establishing that it did not know before that date that its damage was attributable to one or more of these acts or omissions of TTC. In determining that question, it is necessary in accordance with s.31(6) to disregard so much of these particulars as “involve negligence”. Hence, the use of terms such as “no good reason”, “wrongly” and “properly” must be disregarded. +In my opinion, by the end of November 1997, Kensland knew that its damage was attributable to the particularised acts and omissions that are alleged to constitute negligence on the part of TTC. Once the descriptions of negligence are stripped from the particulars, Kensland’s claim is that TTC gave it or failed to give it advice concerning the termination of the contract of sale or its construction and failed to advise it of the risks involved in terminating the contract and that this led to the damage that it has suffered. However, Kensland knew what advice TTC had or had not given it. By the end of November, it even knew from the Statement of Claim served by Whale View and correspondence between the parties the respects in which this advice or lack of it was the basis of Whale View’s claim for damages. By the end of November, Kensland knew that its liability to pay damages and costs and the drop in the valuation of its property was the result of the advice and lack of advice that TTC had given it. What it did not know was whether that advice or lack of it was negligent, but, for the purposes of s.31(5)(b) that is irrelevant. Consequently, Kensland knew by the end of November 1997 that the damage that is the subject of its action for damages against TTC “was attributable…to the act or omission” of TTC. +Conclusion +It follows that TTC has established that by the end of November 1997, Kensland had knowledge of each of the four matters referred to in s.31(5) (two of them not being in dispute), that it cannot obtain the ameliorating benefit of s.31 and that its claim against TTC is statute barred. +Order +The appeal must be dismissed with costs. +Mr Justice Bokhary PJ: +The Court unanimously dismisses the appeal with costs. + + + + (Kemal Bokhary) (Patrick Chan) (R A V Ribeiro) + Permanent Judge Permanent Judge Permanent Judge + + + + (Sir Noel Power) (Michael McHugh) + Non-Permanent Judge Non-Permanent Judge + +Mr John Scott, SC and Mr Charles Manzoni (instructed by Messrs Jonathan Rostron Solicitors) for the Appellant +Mr Michael Thomas, SC and Mr Andrew Bullett (instructed by Messrs Richards Butler) for the Respondent \ No newline at end of file diff --git a/en_cases_hkcfa/2008_HKCFA_13/case.json b/en_cases_hkcfa/2008_HKCFA_13/case.json new file mode 100644 index 0000000..e545076 --- /dev/null +++ b/en_cases_hkcfa/2008_HKCFA_13/case.json @@ -0,0 +1,26 @@ +{ + "Date": "7 Mar, 2008", + "Action No.": "FACV11/2007", + "Neutral Cit.": "[2008] HKCFA 13", + "case_title": "KENSLAND REALTY LTD V. TAI, TANG CHONG", + "page_title": "KENSLAND REALTY LTD V. TAI, TANG CHONG | [2008] HKCFA 13 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "FACV11/2007", + "link": "https://www.hklii.hk/en/appealhistory/FACV/2007/11" + } + ], + "case_url": "https://www.hklii.hk/en/cases/hkcfa/2008/13", + "neutral_cit": "[2008] HKCFA 13", + "court_code": "HKCFA", + "content": "FACV000011/2007 KENSLAND REALTY LTD v. TAI, TANG CHONG\nFACV No. 11 of 2007\nIN THE COURT OF FINAL APPEAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nFINAL APPEAL NO. 11 OF 2007 (Civil)\n(ON APPEAL FROM CACV No. 44 of 2006)\n_______________________\nBetween:\nKENSLAND REALTY LIMITED\n(in compulsory liquidation)\nPlaintiff\n(Appellant)\nand\nTAI, TANG CHONG\nDefendant\n(Respondent)\n_______________________\nCourt:\nMr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Sir Noel Power NPJ and Mr Justice McHugh NPJ\nDate of Hearing:\n9 January 2008\nDate of Judgment:\n7 March 2008\n_______________________\nJ U D G M E N T\n_______________________\nMr Justice Bokhary PJ and Sir Noel Power NPJ :\n1.\nThe Court has been shown a number of English decisions on\ns.14A\nof the Limitation Act 1980, which is the United Kingdom provision on which s.31 of the\nLimitation Ordinance\n,\nCap.347\n, is modelled. We do not consider an exhaustive discussion of those decisions essential to the disposal of this relatively straightforward appeal. This is not to say that we have any quarrel with any of those decisions. Indeed we consider them helpful. Mr John Scott SC for Kensland has submitted that those decisions, or at least some of them, have put a gloss on the legislation concerned. As to that, we would say this.\nPurposive construction …\n2.\nStatutes of limitation seek to provide potential defendants with a measure of repose. They seek to do that without unduly curtailing the right of would-be plaintiffs to pursue their claims. So they always involve striking a balance between competing interests. The balance struck by way of any given limitation provision would reflect a legislative policy. We would not rule out the possibility of a limitation provision that is open to a constitutional challenge, for example, because it so favours defendants as to fall foul of the access to the courts clause of art.35 of the Basic Law. But subject to that possibility, which is always remote and certainly does not arise in the present case, there can be no doubt as to the judiciary’s duty when a limitation provision calls for construction. That duty is to construe such provision so as to promote its underlying legislative policy. Construing a provision of course involves more than reciting its terms. Considerably more is often needed, especially where there are substantial difficulties to be resolved in a purposive way. Putting a purposive construction on a provision is not to be equated with putting a gloss on it.\n3.\nThere is nothing unprecedented in the idea of purposive construction aimed at promoting underlying legislative policy. Look at what the Barons of the Exchequer said in Stradling v. Morgan (2 Eliz. I) 1 Plowden 199. They said (at p.205) that “the sages of the law … have ever been guided by the intent of the Legislature, which they have always taken according to the necessity of the matter, and according to that which is consonant to reason and good discretion”. The phraseology may be dated, but the idea is there. Then there is the statement which Chief Justice Abbott famously made in R v. Hall (1822) 1 B & C 123 at p.136 when giving the judgment of the Court of King’s Bench. He said that the meaning of a statutory provision “is to be found not so much in a strict etymological propriety of language, nor even in popular use, as in the subject or occasion, on which they are used, and the object that is intended to be attained”. That statement now bears the imprimatur of the Privy Council, for Lord Romilly MR cited it with approval in The “Lion”\n(1869) LR 2 PC 525\nat p.530 in the course of delivering their Lordships’ advice.\n… of statutes of limitation in particular\n4.\nWe move now from the general to the particular. It is well-known that statutes of limitation have been described as statutes of repose. That description was first made famous by Story J in Bell v. Morrison 26 US (1 Peters) 350 (1828) at p.360 when giving the judgment of the United States Supreme Court. It has been repeated in the House of Lords (by Lord Simon of Glaisdale in The Ampthill Peerage Case\n[1977] AC 547\nat p.575H) and in this Court (by Chief Justice Li in Wong Tak Yue v. Kung Kwok Wai No.2\n(1997-98) 1 HKCFAR 55\nat p.67 D-E). What we wish to draw attention to in particular is Story J’s statement on construction. He said (at p.359) that the construction of a statute of limitation should “proceed upon principles … adapted to carry into effect the real objects of the statute”.\n5.\nThe case of Haward v. Fawcetts\n[2006] 1 WLR 682\nhas been made the subject-matter of a case commentary by Ms Janet O’Sullivan. That commentary is to be found in PRFN 2006, 22(2) 127. We will not conceal our admiration for the refreshing candour of Ms O’Sullivan’s observation at p.130 that “the words of the statute may require some bending when dealing with cases of negligent professional advice”. That is of course not to deny the desirability of legislation free from any need of such treatment. Hence the call at the conclusion of the commentary for legislative reform. But such reform is another day and somebody else’s work. Meanwhile the Court has the present case to deal with on current legislation.\nCircumstances of the case\n6.\nTurning to the circumstances of the case at hand, they are shortly stated as follows. On 13 January 2004 Kensland Realty Ltd (“Kensland”), now the appellant, commenced an action against its former solicitors Messrs Tai Tang & Chong (“TTC”), now the respondent. The action is for damages sustained as a result of acting on legal advice tendered to Kensland by TTC, which advice Kensland complains against as negligent. In striking-out proceedings taken out by TTC, the Court of Appeal (Rogers VP and Le Pichon JA) reversed the High Court (Deputy Judge Gill) and dismissed Kensland’s action as time-barred. Kensland now appeals to this Court, seeking the reinstatement of its action.\n7.\nKensland had entered into an agreement to sell certain shop premises to a company named Whale View Investment Ltd (“Whale View”). Since Kensland was selling as a confirmor, the agreement not surprisingly provided for payment of the balance of the purchase price by such cashier’s orders or cheques in favour of such persons as Kensland may direct. The agreement provided that completion was to take place between 10:00 am and 1:00 pm on 2 September 1997 and that time was of the essence. Whale View did not tender the balance of the purchase price until six minutes after the 1:00 pm deadline. But there was a question of whether the missing of that deadline was due to Kensland’s lateness in giving Whale View a split payment direction. Nevertheless Kensland treated the missing of the 1:00 pm deadline as a repudiatory breach on Whale View’s part, refused to complete and forfeited Whale View’s deposit of $8.25 million. According to Kensland, it took that course on TCC’s advice that such a course might result in Kensland being sued by Whale View for the return of its deposit but that such a suit’s chances of success would be very low. As it turned out, the suit succeeded. We will come to its details later.\nObviously out of time under s.4\n8.\nWhere negligent advice gives rise to a cause of action, that cause of action accrues when the person who is given such advice acts on it. So the cause of action on which Kensland’s action against TTC is based would have accrued on 2 September 1997. As has been noted, that action was commenced more than six years after that date.\nSection 4\nof the\nLimitation Ordinance\nprovides that an action founded on simple contract or tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. Obviously therefore Kensland’s action against TTC is out of time under s.4.\nTurning to s.31\n9.\nSo the question becomes whether that action was commenced within the time allowed by the ameliorating effect of\ns.31\nof the\nLimitation Ordinance\n. This section reads :\n“(1)\nThis section applies to any action for damages for negligence, other than one to which section 27 applies, where the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both­\n(a)\nthe knowledge required for bringing an action for damages in respect of the relevant damage; and\n(b)\na right to bring such an action,\n(referred to in this section as the ‘date of knowledge’) falls after the date on which the cause of actionaccrued.\n(2) The period of limitation prescribed by section 4(1) in respect of actions founded on tort shall not apply to an action to which this section applies.\n(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4).\n(4) That period is either –\n(a)\n6 years from the date on which the cause of action accrued; or\n(b)\n3 years from the date of knowledge, if that period expires later than the period mentioned in paragraph (a).\n(5) In subsection (1) ‘the knowledge required for bringing an action for damages in respect of the relevant damage’ means knowledge –\n(a)\nof such facts about the damage in respect of which damages are claimed as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment;\n(b)\nthat the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence;\n(c)\nof the identity of the defendant; and\n(d)\nif it is alleged that the act or omission was that of a person other than the defendant, of the identity of that person and the additional facts supporting the bringing of an action against the defendant.\n(6) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (1).\n(7) For the purposes of this section or section 33 a person’s knowledge includes knowledge which he might reasonably have been expected to acquire –\n(a)\nfrom facts observable or ascertainable by him; or\n(b)\nfrom facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek,\nbut a person shall not be taken by virtue of this subsection or section 33 to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”\nReverting to the circumstances of the case\n10.\nWe now revert to the circumstances of the case. Relevant to the question of whether Kensland’s action against TCC is within time under s.31, this is what happened in consequence of Kensland’s refusal to complete. On the day following such refusal, Whale View took two steps. One was the commencement of an action against Kensland by a writ endorsed with a claim for, among other relief, specific performance and damages in addition to or in lieu of specific performance. The other was the registration of that action as a lis pendens (pending action) against the shop premises concerned, which step would so deter other purchasers as to block any attempt that Kensland might make to sell those premises to someone else.\n11.\nInitially Whale View’s sought specific performance. But after the property market fell, as it had by November 1997, Whale View sought instead the return of its deposit and damages representing the profit which it would have made if the sale and purchase had been completed and it had then on-sold the shop premises within a few weeks of completion on 2 September 1997.\n12.\nWhale View’s action against Kensland proceeded to trial in the High Court. It was dismissed by the High Court on 5 April 2000. The matter then went on appeal to the Court of Appeal, and that appeal succeeded. On 23 January 2001 the Court of Appeal entered judgment for Whale View against Kensland in the sum of $16.25 million (made up of a returned deposit of $8.25 million and damages of $8 million) with interest at the rate of 10.5% from the issue of the writ until the Court of Appeal’s judgment and with the costs of the action and of that appeal. Kensland then appealed to this Court. On 10 December 2001 this Court (by a judgment now reported at\n(2001) 4 HKCFAR 381\n) dismissed that appeal with costs nisi.\n13.\nBy 14 November 1997 if not before, Kensland realised that the fall in the property market had resulted in the shop premises becoming worth much less than the $55 million for which it had agreed to sell and Whale View had agreed to purchase those premises. That is attested by the fact that on that day Kensland sought counsel’s advice on whether it could successfully reverse course so as to hold Whale View to that sale and purchase by admitting Whale View’s claim.\n14.\nIt is also to be noted that by November 1997 Kensland had already been billed for $78,300 by way of costs incurred in defending Whale View action up to that time.\nKnowledge\n15.\nOne sees the reference in s.31(1)(a) to “the knowledge required for bringing an action in respect of the relevant damage”. And one sees what s.31(5)(a) to (d) say as to what such knowledge means. Mr Scott submits that Kensland did not have such knowledge until this Court gave judgment on 10 December 2001 affirming the Court of Appeal’s decision to enter judgment for Whale View. Alternatively, Mr Scott submits that Kensland did not have such knowledge until, at the earliest, the Court of Appeal entered judgment for Whale View on 23 January 2001. For the reasons which we are about to state, we are unable to accept either of those submissions.\n16.\nAmong the decisions on s.14A of the Limitation Act 1980 which this Court was shown is that of the House of Lords in Haward v. Fawcetts (the case the subject-matter of the case commentary which we referred to earlier). It was a case of allegedly negligent advice. The advice was that of an accountant in reliance on which the claimant had acquired a controlling interest in a company. And the House of Lords was concerned with the question of knowledge in the s.14A sense on the part of the claimant. In regard to the degree of certainty required, Lord Nicholls of Birkenhead endorsed the guidance given by Lord Donaldson of Lymington MR in Halford v. Brookes\n[1991] 1 WLR 428\nat p.443. Doing that, Lord Nicholls said (in para.9) that “knowledge … means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice, and collecting evidence”.\n17.\nLord Nicholls then turned to the degree of detail required, noting that questions as to that have mostly arisen in the context of the need for the claimant to know that the damage was attributable in whole or in the part to the act or omission which is alleged to constitute negligence. In para.10 he considered what had been said in Wilkinson v. Ancliff (BLT) Ltd\n[1986] 1 WLR 1352\nat p.1365, Hendy v. Milton Keynes Health Authority [1992] 3 Med LR 114 at pp 117-118, Nash v. Eli Lilly & Co.\n[1993] 1 WLR 782\nat pp 797-799, Spargo v. North Essex District Health Authority [1997] PIQR 235at p.242 and Broadley v. Guy Clapham & Co.\n[1994] 4 All ER 439\nat p.448. He concluded (in para.11) that “paraphrasing, time does not begin to run against a claimant until he knows that there is a real possibility his damage was caused by the act or omission in question”.\n18.\nStatutory provisions are typically expressed in general terms which are sometimes far from happily worded. But they always have to be applied with a view to doing practical justice in real life situations. So they often call for construction, and the construction that they receive should be a purposive one. It is in the nature of purposive construction to give practical guidance for the application of a statutory provision according to its true meaning and effect. Giving such guidance is, in our view, precisely what Lord Nicholls did in Haward v. Fawcetts.\n19.\nAs to the language of our s.31 (modelled on the legislation with which the House of Lords was there concerned), one sees what subsection (5) says “knowledge” means. One sees what subsection (6) says about the irrelevance of knowledge that any acts or omission involve negligence. And one sees what subsection (7) says about knowledge which a person might reasonably have been expected to acquire. Lord Nicholls’s approach is, we think, amply accommodated by the language of the legislation read as a whole, in context and purposively.\nFacts known and the knowledge to which they amounted\n20.\nBy the end of November 1997 Kensland obviously knew that acting on TTC’s advice had (i) prevented it from on-selling the shop premises quickly, (ii) exposed it to the drop in value which those premises had undergone, (iii) involved it in already considerable costs and (iv) left it facing a substantial and triable claim.\n21.\nKnowing those facts must amount at least to knowing that there was a real possibility that it had suffered damage caused by TTC’s advice on which it had acted.\n22.\nAlthough the agreement for sale and purchase provided for completion “between the hours of 10:00 am and 1:00 pm”, the correct split payment direction was not given until 11:48 am. And when it was eventually given, it was for nine cheques and complying with it involved eight cheques and two cashier’s orders. On Kensland’s case, the only thing which TTC warned that Whale View might sue for was the return of its deposit. There was no warning that TTC might sue for specific performance and damages in addition to or in lieu of specific performance. Nor was there any warning that Whale View might register its action as a\nlis pendens\nagainst the shop premises, effectively preventing Kensland from on-selling those premises to someone else. And, despite the lateness of the split payment direction, TTC advised that a suit by Whale View would have no more than a very low chance of success.\n23.\nThose omissions were highly material in themselves. Moreover there was another dimension to them. As soon as it appeared that there was much advice that should have been given but had been omitted, it became natural to wonder about the accuracy of such advice as had been given. Rather like the thirteenth stroke of the clock that falsifies all that went before, the omissions called into question the accuracy of the advice which had been given. In this case the thirteenth stroke of the clock sounded loud and clear on the following day.\nTime barred on any approach\n24.\nBy reason of the knowledge which Kensland had by the end of November 1997. The limitation period for its action against TTC having expired long before Kensland commenced it on 13 January 2004, that action is plainly time-barred. We have proceeded on the approach articulated by Lord Nicholls in\nHaward v. Fawcetts\n, but would reach the same conclusion on any of the approaches to be discerned from the speeches of the other Law Lords in that case.\n25.\nFor the purposes of our s.31, we would take the precaution of drawing attention to an observation which Lord Walker of Gestingthorpe made in para.56. This is that “[t]he wide range of claims to which section 14A may extend suggests that general observations made by the court in one type of case may not be directly apposite in a case of another type”. At the same time, we would point out that of the principles stated in Lord Nicholls’s speech, the ones which we have treated as the most significant come essentially from paras 10 and 11. And in para.80 Lord Walker described those principles – accurately in our view – as “settled”.\nResult\n26.\nIn the result, we would dismiss this appeal with costs (the parties having accepted at the hearing that costs should follow the event).\nMr Justice Chan PJ:\n27.\nI have had the advantage of reading the judgment of Mr Justice Ribeiro PJ in draft. I entirely agree with his detailed and comprehensive analysis of the provisions in\ns.31\nof the\nLimitation Ordinance\n,\nCap 347\nand the case law relevant to these provisions. For the reasons he has given, I agree that this appeal should be dismissed with costs.\n28.\nThe purpose of having limitation provisions is to ensure on the one hand, that a defendant is not unduly vexed by stale claims to his disadvantage particularly when the relevant evidence has been lost and the memory of the witnesses has failed; and on the other hand, that a plaintiff is not unfairly prejudiced by a lack of knowledge of the relevant facts required to bring a claim until after it is time barred. This is what s.31 is aimed at achieving in relation to actions based on non-personal injury negligence.\n29.\nAs Mr Justice Ribeiro’s analysis amply demonstrates, the construction of that section and its application to the facts of a particular case is by no means an easy task. The reason is that this provision (closely following the English equivalent in s.14A of the Limitation Act 1980 as amended by the Latent Damage Act 1986), to quote the words of Ms Janet O’Sullivan in her helpful and enlightening article, Limitation, latent damage and solicitors’ negligence, “which was enacted primarily with claims for property damage in mind and based closely on the drafting of the parallel provisions for personal injury claims, is not easily applied to claims for economic loss arising from the alleged negligence of solicitors” at p.219 of Professional Negligence, Vol. 20 No. 4, 2004. This is evident from the increasing volume of jurisprudence purporting to apply this provision (or its equivalent) in professional negligence claims in England and Australia. No doubt, the legal and other professions here would also be anxious to have some clear guidance on how s.31 operates in practice. A legislative review of the relevant statutory provisions may well be necessary in future.\n30.\nWhether a plaintiff can invoke s.31 is a question of mixed law and fact. This involves an examination of a host of issues, such as, what was the defendant’s act or omission complained of, what is the cause of action relied on, when did the cause of action accrue, what was the damage caused to the plaintiff, how much did the plaintiff know about these facts or ought he reasonably to have known about these facts, would a reasonable person having such knowledge or imputed knowledge consider the damage sufficiently serious to justify instituting proceedings for damages, when did the plaintiff first have actual or imputed knowledge of such facts, did the plaintiff know or ought he reasonably to have known that the damage was attributable in whole or in part to the defendant’s act or omission, and if so, when did he first have actual or imputed knowledge of this. Needless to say, all the circumstances of the case have to be considered.\n31.\nApplying s.31 to the facts of this case, one cannot escape the conclusion that Kensland had acquired the necessary knowledge required to bring the present action at the latest by November 1997 and that the present action is clearly statute-barred.\nMr Justice Ribeiro PJ:\n32.\nThe appellant (“\nKensland\n”) seeks to overturn the decision of the Court of Appeal striking out its action alleging professional negligence against the respondents, a firm of solicitors (“\nTTC\n”). The action was struck out on the ground that it is statute-barred under the\nLimitation Ordinance\n,\nCap 347\n(“\nthe Ordinance\n”).\n33.\nIn the courts below, Kensland conceded that its writ had been issued after expiry of the primary limitation period of six years under section 4 of the Ordinance. However, Kensland was allowed to withdraw that concession without opposition so that on this appeal, the Court is asked to decide whether the action should be permitted to proceed on the basis either that it was started within the primary limitation period or that the secondary limitation period provided for by section 31 of the Ordinance applies.\nA. The original proceedings\n34.\nThe present action arises out of a property transaction which led to legal proceedings culminating in an appeal to this Court decided in 2001.\n[1]\nThe course of events was as follows.\nA.1 The underlying property transaction\n35.\nIn June 1997, with TTC acting as solicitors on its behalf, Kensland agreed to purchase certain shop premises for HK$53 million and contracted to re-sell them to a purchaser named Whale View Investment Ltd (“\nWhale View\n”) for HK$55 million. The solicitors acting for Whale View were Messrs Tam, Pun and Yipp (“\nTPY\n”). Deposits totalling HK$8.25 million were paid by Whale View and completion was agreed to take place on or before 2 September 1997 between the hours of 10.00 am and 1.00 pm at TTC’s offices, with time made of the essence. An important clause of the contract entitled Kensland to direct that payment should be by a specified number of cashier orders or solicitors’ cheques in stated amounts, designed to enable Kensland to pass on appropriately denominated cheques to the head vendor. Unless payment was made in accordance with Kensland’s directions (referred to in the original proceedings as the “\nsplit cheque directions\n”) Whale View’s payment obligations would be deemed not to have been discharged.\n36.\nIt was therefore necessary for Whale View to receive the split cheque directions in good time. However, they were not received from TTC until 11.13 am (with a correction made at 11.48 am) on 2 September 1997, that is, until rather less than two hours before the 1.00 pm deadline for completion. Whale View was keen to complete its purchase since the property market was very buoyant and, as the parties later agreed, the shop premises were then worth some HK$63 million. But despite the urgent efforts of TPY and Whale View’s bankers, the 1.00 pm deadline was not met: the payment instruments arrived at TTC’s offices at 1.06 pm, six minutes late.\n37.\nIn an affirmation filed in the present proceedings by Yvonne Yeung Han Yi (“\nMs Yeung\n”), one of Kensland’s directors, Ms Yeung states that shortly after 1.00 pm on that day, she was advised by TTC that Whale View’s tender of payment after the deadline entitled Kensland to rescind the contract and forfeit the deposits. She affirms that Kensland acted on that advice. It will be necessary later to consider more closely the exchanges between Ms Yeung, TTC and TPY surrounding that decision.\nA.2 The original proceedings brought by Whale View\n38.\nWhale View issued proceedings against Kensland on the very next day, 3 September 1997, claiming specific performance and alternatively, return of the deposits with damages, interest and costs. The writ was immediately registered against the property as a lis pendens.\n39.\nThe original proceedings were dismissed by the trial Judge on 5 August 2000\n[2]\non the basis that sufficient time had been allowed for completion. Whale View had sued TPY in an alternative claim for negligence in their preparation of related banking documents. That action succeeded with damages being awarded against TPY. However, the Judge’s decision was reversed by the Court of Appeal on 23 January 2001.\n[3]\nIt held that Kensland was in breach of an implied term and had itself repudiated the contract. It ordered Kensland to return the deposits and to pay damages of $8 million to Whale View with interest (agreed to run at the rate of 10.5% from 3 September 1997) and costs. It also allowed TPY’s appeal.\n40.\nKensland’s appeal to this Court was dismissed on 10 December 2001, for reasons differing in some respects from those of the Court of Appeal. It was held that Kensland’s provision of the split cheque directions at such a late stage constituted breach of an implied term that such directions had to allow the purchaser’s solicitors a reasonable time to comply. Kensland was therefore not entitled to take advantage of its own wrong by invoking the “time of the essence” clause and refusing completion. It was held to have repudiated the contract, entitling Whale View to the relief granted by the Court of Appeal.\nB. The present proceedings\n41.\nAfter the Court of Appeal’s judgment in the original proceedings, Kensland went into compulsory liquidation and, on 23 November 2001, its liquidators were appointed.\nB.1 The claims made by Kensland in the present proceedings\n42.\nThe writ in the present proceedings was issued on 13 January 2004. It is indorsed with claims for damages in the sum of HK$8 million (in respect of the damages paid by Kensland to Whale View); damages of HK$2,767,407.33 (representing legal fees incurred by Kensland); and damages in the sum of HK$17,980,000 in respect of “the diminution in value [of the premises] between 9 September 1997 and 19 May 1998”; all said to result “from negligent legal advice by” TTC. Interest is claimed on all these sums.\n43.\nKensland’s Statement of Claim alleges that the damage suffered was “a result of TTC’s negligent handling of Kensland’s affairs” particularised in terms of TTC :\n(a)\nfailing to provide the split cheque directions to TPY within a reasonable time;\n(b)\nwrongly advising Kensland “that TPY’s late tender, in the circumstances, constituted a repudiation of the agreement”;\n(c)\nwrongly advising that the split cheque directions “had been given within sufficient time for the preparation of split cheques and cashier[s] orders”;\n(d)\nfailing “to advise Kensland that, in law, it would not be entitled to take advantage of [its] own breach of the implied term”;\n(e)\nfailing “to advise Kensland ... that if Kensland’s delay in completion was due to its default Kensland would not be entitled to treat the agreement as repudiated or take any consequential steps”; and,\n(f)\nfailing “to point out and advise Kensland fully of the risks involved in refusing to complete and, in particular, of the very real risk of having to compensate Whale View”.\nB.2 TTC’s limitation defence and the striking-out application\n44.\nIn its Defence TTC joins issue with many of the factual allegations of negligence but these do not require discussion. Pertinently, it pleads limitation, contending that Kensland’s causes of action arose on 2 or 3 September 1997, more than six years before issue of the writ, and are statute-barred.\n45.\nTTC proceeded to issue the striking-out summons and evidence was filed. At the hearing before the Judge, a “draft Reply” was handed up on Kensland’s behalf, pleading section 31 and putting the availability of the secondary limitation in issue.\n46.\nThe striking-out application has proceeded on the basis of essentially undisputed evidence, in particular of Ms Yeung, regarding the circumstances in which Kensland refused to complete the sale agreement and consequential developments. It has also proceeded on the assumption, made for striking-out purposes, that Kensland’s pleaded allegations, particularly regarding TTC’s negligence and the resultant damage suffered by Kensland, are made good.\n47.\nAt first instance, the Judge refused to strike out Kensland’s claim, holding that it was arguably not time-barred.\n[4]\nBut the Court of Appeal reversed the Judge, holding that knowledge relevant to section 31 was established so that Kensland’s action was not saved by the secondary limitation period.\n[5]\nC. Kensland’s claim and the primary limitation period\n48.\nThe primary limitation period relevant to Kensland’s claim is laid down by section 4(1)(a) of the Ordinance which provides:\n“The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action accrued, that is to say ... actions founded on simple contract or on tort ...”\n49.\nWhile Kensland’s complaint against TTC may in principle be founded on concurrent breaches of contractual and tortious duties,\n[6]\nit is rightly accepted by Mr John Scott SC\n[7]\non Kensland’s behalf that its contractual cause of action is time-barred. In accordance with the general rule, that cause of action accrued on the date when the contract was broken,\n[8]\nthat is on 2 September 1997 when TTC allegedly gave the negligent advice. We are accordingly concerned only with Kensland’s claim in tort and, for the purposes of this first argument, with the date when Kensland first incurred damage.\n[9]\nC.1 Damage which completes the cause of action in tort\n50.\nMr Scott seeks to argue that no damage was suffered “until the Court of Appeal handed down judgment in the [original proceedings]”\n[10]\nand therefore that the cause of action only accrued on 23 January 2001, putting issue of the writ well within the primary limitation period. In the draft Reply, there is a suggestion that damage was only incurred even later, that is, when this Court handed down its judgment on 10 December 2001. In my judgment, neither proposition is sound and Kensland’s argument must be rejected.\n51.\nA cause of action in tort accrues when the damage which results from the tortious conduct is real, as distinct from minimal or negligible\n[11]\nand is actual, as opposed to purely contingent.\n[12]\nThe concept of “damage” is given a broad meaning. It encompasses damage consisting of “any detriment, liability or loss capable of assessment in money terms.”\n[13]\nWhere economic loss is involved, it includes loss suffered “by payment of money, by transfer of property, by diminution in the value of an asset or by the incurring of a liability.”\n[14]\nWhether damage has been incurred in any particular case is a question of fact.\n[15]\nIts precise quantification may only be possible at a later date, by which time it may have become more serious, but that does not detract from the earlier accrual of the cause of action.\n[16]\nThe damage must, however, be recoverable as falling within the measure of damages applicable to the defendant’s wrong in question.\n[17]\nC.2 When damage was incurred in the present case\n52.\nApplying these principles, there can be no doubt that Kensland’s cause of action accrued on 2 September 1997. The applicable measure of damages for negligence aims to put Kensland in the position that it would have occupied had there been no breach of duty by TTC.\n[18]\nKensland’s case is that it would have completed the sale but for TTC’s negligent advice. If that had happened, then having purchased the property for HK$53 million, it would have on-sold to Whale View for HK$55 million, making a profit of HK$2 million less transaction expenses.\n53.\nInstead, acting upon TTC’s advice, it refused to complete and immediately incurred a liability in damages to Whale View, later quantified at HK$8 million. It also incurred a liability to pay interest on that amount which, as noted above, Kensland later agreed should run from 3 September 1997. On that date, Kensland was made a defendant in the action brought by Whale View and began incurring legal costs in mounting its defence and prosecuting its counterclaim. Kensland now claims damages from TTC in the sum of HK$2,767,407.33 representing accumulated legal costs. It also found itself saddled with a property which was encumbered by the registration of a lis pendens in a volatile property market, effectively rendering it unsaleable until the encumbrance was vacated. It now claims that it suffered a loss of HK$17,980,000 “between 9 September 1997 and 19 May 1998” representing “the diminution in value of the premises” during that period.\n54.\nMr Scott’s argument that no loss was incurred until the handing-down of the courts’ decisions is untenable in the light of the abovementioned facts. Those decisions merely declared that the immediate legal consequence of Kensland’s refusal to complete on 2 September 1997 was the incurring of liability in respect of the heads of loss set out above. Kensland’s proceedings were therefore commenced outside the primary limitation period and the concession made below was correct.\nD. Legal principles applicable to the secondary limitation period\nD.1 Section 31\n55.\nThe secondary limitation period which Kensland relies on is provided for by section 31 of the Ordinance as follows:\nActions in respect of latent damage not involving personal injuries\nSection 31: Special time limit for negligence actions where facts relevant to cause of action are not known at date of accrual\n(1) This section applies to any action for damages for negligence, other than one to which section 27 applies, where the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both-\n(a)\nthe knowledge required for bringing an action for damages in respect of the relevant damage; and\n(b)\na right to bring such an action,\n(referred to in this section as the “date of knowledge”) falls after the date on which the cause of action accrued.\n(2) The period of limitation prescribed by section 4(1) in respect of actions founded on tort shall not apply to an action to which this section applies.\n(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4).\n(4) That period is either-\n(a)\n6 years from the date on which the cause of action accrued; or\n(b)\n3 years from the date of knowledge, if that period expires later than the period mentioned in paragraph (a).\n(5) In subsection (1) “the knowledge required for bringing an action for damages in respect of the relevant damage” means knowledge-\n(a)\nof such facts about the damage in respect of which damages are claimed as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment;\n(b)\nthat the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence;\n(c)\nof the identity of the defendant; and\n(d)\nif it is alleged that the act or omission was that of a person other than the defendant, of the identity of that person and the additional facts supporting the bringing of an action against the defendant.\n(6) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (1).\n(7) For the purposes of this section or section 33 a person’s knowledge includes knowledge which he might reasonably have been expected to acquire-\n(a)\nfrom facts observable or ascertainable by him; or\n(b)\nfrom facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek,\nbut a person shall not be taken by virtue of this subsection or section 33 to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.\nD.2 The effect of section 31\n56.\nThe effect of being brought within section 31 is, at least for present purposes, uncontroversial: the plaintiff is enabled to rely on a three-year secondary limitation period which commences, not from the accrual of the cause of action, but from his “date of knowledge”, as defined in section 31(1). The barring of the plaintiff’s claim is postponed to the extent, if any, that the secondary limitation period expires later than the six-year primary limitation period. However, by section 32, the potential period of postponement is subject to an overall cap of 15 years from the occurrence of the last act or omission alleged to constitute negligence (whether or not the resultant damage has by then been incurred).\n57.\nSince the secondary limitation period allows a period of only three years from the “\ndate of knowledge\n”, that is, the date when the plaintiff first acquired the relevant knowledge, for starting proceedings,\n[19]\nthe section can only help a plaintiff who did not acquire such knowledge until over halfway into the six-year primary limitation period. Earlier knowledge would not result in any extension of time for issuing the writ.\n58.\nThe controversial provisions which have given rise to some difficulties of construction are subsections (1), (5), (6) and (7) of section 31, setting out the conditions for applicability of the secondary limitation period. They must be construed in the context of their statutory purpose.\nD.2 The origins and purpose of section 31\n59.\nThe objective of limitation periods is well known.\n[20]\nA defendant who is forced to defend an action long after the events which gave rise to the plaintiff’s claim is likely to suffer injustice. Evidence required in his defence may no longer be available or may, over time, have diminished in cogency. From the court’s point of view, such cases are much more difficult to try. The various statutes of limitation therefore require plaintiffs, in the public interest, to pursue their claims within a reasonable time.\n60.\nLimitation periods generally run from the date of accrual of the cause of action. With the tort of negligence, as we have seen, this is when damage is incurred, “damage” being broadly defined as encompassing any detriment, liability or loss capable of monetary assessment.\n[21]\nThe great breadth of the concept means that the consequences which immediately follow upon a defendant’s breach of duty will often qualify as “damage” so as to set time running for limitation purposes. This is so even if such damage is imperceptible at that stage and is not reasonably discoverable until much later – by which time the limitation period may already have expired.\n61.\nPlainly, a limitation statute works an injustice if it bars a plaintiff’s claim in such circumstances. And well-known cases of such injustice have arisen. As Lord Nicholls points out:\n[22]\n“They were high-lighted in decisions of your Lordships’ House in appeals such as the pneumoconiosis case of\nCartledge v E Jopling & Sons Ltd\n[1963] AC 758\nand the defective chimney case of\nPirelli General Cable Works Ltd v Oscar Faber & Partners\n[1983]\n2 AC 1\n. There claimants were held to be statute-barred before they knew or could be expected to know they had suffered damage.”\n62.\nThe legislative amendments introduced in England and Wales to remedy that injustice are now contained in the Limitation Act 1980 (“\nthe Act\n”). The provisions presently relevant derive from those amendments which were shadowed in our Ordinance. Section 11 of the Act, which introduced a secondary limitation period in personal injury cases, is reproduced in section 27 of the Ordinance. And section 14A of the Act, inserted by the Latent Damage Act 1986 in respect of non-personal injury negligence actions, is replicated in section 31.\n63.\nThe essential purpose of section 31 is therefore to redress the injustice of barring a plaintiff’s claim by limitation where the latency of the damage incurred has deprived him of the knowledge required to bring proceedings within the primary limitation period.\nD.3 The main features of section 31\n64.\nI will begin by mentioning three features of section 31 which appear to me to be of importance.\nD.3a The method of approach under section 31\n65.\nFirst, section 31 provides an indication of how it should be approached from what it implicitly assumes. It presupposes the existence of an action for negligence brought by a plaintiff, stating in section 31(1)(a) that it relates to an “action for damages for negligence.”\n[23]\nIndeed, if there were no action being prosecuted, there would be no defendant raising a plea of limitation. It also presupposes that the action is brought both after the cause of action has accrued and after the primary limitation period has expired since it is only necessary to consider the section if the six-year period has gone by. Accordingly, section 31 assumes that in applying its provisions, the court will be able to refer to a pleaded negligence claim, in which the plaintiff has identified the defendant who is alleged directly or vicariously to be responsible for acts or omissions said to constitute negligence and to have resulted in specified damage. What section 31 addresses is the question of when the plaintiff first acquired knowledge of the matters which he has since been able to set out in his pleadings.\n66.\nSection 31 focuses on the four aspects of knowledge set out in section 31(5). These concern knowledge about the seriousness of the damage incurred;\n[24]\nthe linkage between that damage and the acts or omissions alleged to constitute negligence;\n[25]\nand the identity of the defendant.\n[26]\nTime does not begin to run until the plaintiff acquires all four aspects of knowledge. But since the identity of the defendant is not in issue in the present case, I will confine myself to a discussion of the first two aspects, the seriousness of the damage and its attributability dealt with in paragraphs (a) and (b).\n67.\nIt is established\n[27]\nthat where a defendant raises a limitation defence and the plaintiff invokes the section 31 secondary limitation period, it is the plaintiff who bears the burden of proving that he did not acquire the required knowledge until a point of time within the three year period immediately preceding the issue of the writ.\nD.3b The plaintiff’s actual and imputed knowledge are taken into account\n68.\nSecondly, the knowledge which sets time running under section 31 consists both of the plaintiff’s actual knowledge and knowledge which is imputed to him. When sections 31(1)(a) and 31(5) speak of the plaintiff having knowledge of certain matters, they are naturally taken to be referring to the plaintiff’s actual knowledge. However, an objective standard is clearly also applicable. Section 31(7) provides that for the purposes of the section, “a person’s knowledge includes knowledge which he might reasonably have been expected to acquire (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek.” It follows that the extended meaning given to “knowledge” by section 31(7) is part of the definition of that word wherever it appears in section 31.\n69.\nOf course, on the facts of a particular case, it may be unnecessary to resort to any concepts of imputed or constructive knowledge. If the court finds that a plaintiff had actual knowledge of the matters set out in section 31(5), it needs to go no further. But if a plaintiff lacked actual knowledge but could reasonably have been expected to have acquired the relevant knowledge in accordance with the provisions of section 31(7), then such knowledge is to be imputed to him.\n70.\nI should mention one aspect of the House of Lords’ judgment in\nHaward v Fawcetts\n[28]\nthat may at first sight appear puzzling. Their Lordships approached their decision on the footing that it was not open to them to take into account any constructive knowledge within the meaning of section 14A(10) of the Act (the Hong Kong equivalent being section 31(7)). Lord Walker of Gestingthorpe thought this an “unusual feature”\n[29]\nof the case and both Lord Brown of Eaton-under-Heywood\n[30]\nand Lord Mance thought that this hampered their decision-making. Lord Mance stated:\n“I have not found this an easy appeal to resolve on the facts, bearing in mind that all that is in issue is actual knowledge. The difficulty I have found would have been unlikely to exist had the issue of constructive knowledge been squarely raised before the judge. The House was not invited to depart from the Court of Appeal’s conclusion that it was not open to Fawcetts to assert constructive knowledge within section 14A(10).”\n[31]\n71.\nIn my view, their Lordships should not be understood as suggesting that the\napplicability\nof section 31(7) (which is in terms materially identical to section 14A(10)) is somehow a matter dependent upon the attitude taken by one of the parties or indeed, by the lower court. It is part of the statutory definition of what constitutes “the knowledge required for bringing an action” referred to in section 31(1)(a) as elaborated upon in the subsections following and it is obviously not open to a party to opt out of part of a statutory definition. A plaintiff’s invocation of the secondary limitation period requires the court to construe the word “knowledge” wherever it arises in section 31 and in doing so, it inescapably takes into account what the statute, including section 31(7), says that term does and does not include.\n72.\nTheir Lordships should, in my opinion, be understood merely to have been expressing regret that factual issues relevant to the application of the equivalent of section 31(7) had not been aired. Consequently, they reached their decision on grounds which dispensed with any need to consider imputed knowledge. They held that Mr Haward’s case for being allowed to rely on the secondary limitation period had been misdirected, the inquiry having been addressed not to knowledge of the relevant damage (the plaintiff’s loss of large sums invested) but to damage falling outside the proper measure of damages (the failure of the company acquired). Accordingly, Mr Haward was held not to have properly addressed, and therefore not to have discharged, his burden.\n[32]\nNevertheless, their Lordships did indicate that even on the evidence as it stood, Mr Haward could have had imputed to him knowledge of the relevant damage and its attributability. Thus, Lord Nicholls commented that the disparity between the advice received and the company’s disastrous losses had “stared Mr Haward in the face” well before the relevant cut-off date.\n[33]\nAnd Lord Mance referred to “the obviousness of the company’s problems from the outset in contrast with the optimism of the 1995 business plan and of Fawcetts’ alleged advice and attitude” as supporting his decision to allow the appeal.\n[34]\nOther members of the panel took a similar view.\n[35]\nD.3c The required knowledge relates to damage, not liability\n73.\nThirdly, section 31 is concerned with the plaintiff’s knowledge relating to the damage incurred and not with the defendant’s liability. This is in accordance with the statutory purpose of postponing limitation in cases of latent damage. Section 31 centres on whether the plaintiff had “the knowledge required for bringing an action for damages\nin respect of the relevant damage\n”. This is made to depend on the state of his knowledge, actual or imputed, regarding the damage incurred and its attributability, in other words, on whether the damage should in the circumstances be considered latent.\n74.\nPostponement of the limitation period has nothing to do with whether the plaintiff knew that the defendant’s conduct amounted in law to negligence or that he had a good claim against the defendant.\n[36]\nThus, in laying down the standard for deciding whether the damage is known to be sufficiently serious, section 31(5)(a) posits an objective test involving a defendant who does not dispute liability, so that negligence is hypothetically assumed. And section 31(6) expressly provides that “knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant.” This is consistent with the law’s general approach to limitation periods, dismissing a statute-barred action whether or not it would otherwise have been a good claim.\nD.4 Section 31(5)(a)\n75.\nAgainst this background, I turn to consider more closely the construction of section 31(5)(a) which materially provides as follows:\n“In subsection (1) ‘the knowledge required for bringing an action for damages in respect of the relevant damage’ means knowledge of such facts about the damage in respect of which damages are claimed as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment ...”\n76.\nObviously, by the time the action is commenced and the case is pleaded, the plaintiff will have considered the damage to be of a sufficient magnitude to justify initiating legal proceedings. However, the fact that the plaintiff needs to invoke the secondary limitation period means that he has only commenced the proceedings after expiry of the primary limitation period and accordingly that there has for some reason been a delay.\n77.\nA legitimate reason recognized by section 31(5)(a) as justifying postponement involves the case where the plaintiff did not commence proceedings because he only realised the seriousness of the damage incurred at a late stage: a typical case of latent damage. The other paragraphs of section 31(5) identify the other matters considered legitimate reasons for delay (up to the maximum of 15 years): lack of knowledge of the linkage between the damage and the relevant acts or omissions and ignorance of the identity of the defendant.\n78.\nSection 31(5)(a) imposes an objective standard to judge the plaintiff’s delay from the aforesaid perspective. It postulates a reasonable person’s assessment of the facts known to the plaintiff about the damage and deems his knowledge sufficient to trigger the secondary limitation period at the point in time when a reasonable person would have considered the damage sufficiently serious to justify starting proceedings against a hypothetical solvent defendant who does not dispute liability. Gaining such knowledge may of course involve a process during which additional facts become known over time. It is a question of fact, applying the objective standard, when the plaintiff should be taken to have acquired the relevant knowledge.\n79.\nSection 31(5)(a) establishes a low threshold. If a reasonable person knows that the defendant will not contest liability and will pay up, quite minor damage may be thought to justify the cost and effort of issuing a writ. It follows that where a plaintiff becomes aware or has imputed to him knowledge of\nsome\nactual damage, provided that it is not so trivial as to be not worth bothering about, the knowledge requirement of section 31(5)(a) is likely to be satisfied.\n80.\nIn adopting this low threshold, section 31(5)(a) mirrors the rule concerning objective accrual of the cause of action in a negligence claim. Thus, in\nCartledge v Jopling\n,\n[37]\nLord Reid held that the cause of action is complete where the injury suffered is “beyond what can be regarded as negligible” and Lord Evershed spoke of “real damage as distinct from purely minimal damage.”\n[38]\nSection 31(5)(a) treats knowledge of damage with similarly slight dimensions as sufficient for the purposes of section 31(1)(a).\n81.\nA potential source of confusion involves the different contexts in which section 31 introduces separate objective standards which interact with the subjective knowledge possessed by the plaintiff.\n82.\nAs we have seen in Section D.3b above, one such objective standard, introduced by section 31(7), relates to the knowledge which is to be imputed to the plaintiff where he might reasonably have been expected to acquire knowledge about the damage and its attributability from facts observable or ascertainable by him, with appropriate expert help if necessary.\n83.\nThat standard obviously differs from the standard introduced by section 31(5)(a) just discussed. The latter operates to assess the seriousness of the damage which the plaintiff knew about or is (pursuant to section 31(7)) taken to have known about.\n84.\nThe distinction between these two standards was emphasised in Lord Hoffmann’s analysis of sections 14(2) and 14(3) of the Act (parallels of our sections 31(5)(a) and 31(7) in the English personal injury context) in the recent decision of the House of Lords in\nA v Hoare\n.\n[39]\nHis Lordship stated:\n“The test for imputing knowledge in section 14(3) is by reference to what the claimant ought reasonably to have done. It asks whether he ought reasonably to have acquired certain knowledge from observable or ascertainable facts or to have obtained expert advice. But section 14(2) is simply a standard of seriousness applied to what the claimant knew or must be treated as having known. It involves no inquiry into what the claimant ought to have done. A conclusion that the injury would reasonably have been considered sufficiently serious to justify the issue of proceedings implies no finding that the claimant ought reasonably to have issued proceedings. He may have had perfectly good reasons for not doing so. It is a standard to determine one thing and one thing only, namely whether the injury was sufficiently serious to count as significant.”\n[40]\n85.\nAs we shall see, a third objective standard, performing yet another different function, has been introduced by the case-law. That third standard is applied to assess the quality and scope of the plaintiff’s knowledge, as discussed below. It is important that the different roles played by each of these different standards be recognized and kept analytically separate.\nD.5 Section 31(5)(b)\n86.\nSection 31(5)(b) relevantly provides:\n“In subsection (1) ‘the knowledge required for bringing an action for damages in respect of the relevant damage’ means knowledge that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence.”\n87.\nAs noted in Section D.3c above, section 31 does not concern itself with any knowledge on the plaintiff’s part concerning the defendant’s liability. The courts have emphasised that the words “knowledge that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence” do not invite any such discussion. As Hoffmann LJ stated in\nDobbie v Medway Health Authority\n:\n“...the words ‘which is alleged to constitute negligence, nuisance or breach of duty’ serve to identify the facts of which the plaintiff must have knowledge without implying that he should know that they constitute a breach of a rule, whether of law or some other code of behaviour.”\n[41]\n88.\nThose words indicate the method of approach discussed in Section D.3a above, pointing the court in the direction of the plaintiff’s pleaded case regarding the acts or omissions alleged to constitute the defendant’s negligence.\n89.\nSir Thomas Bingham MR, in the\nDobbie\ncase, illustrated the way the equivalent of section 31(5)(b) works with the following example:\n“Time starts to run against the claimant when he knows that the personal injury on which he founds his claim is capable of being attributed to something done or not done by the defendant whom he wishes to sue. This condition is not satisfied where a man knows that he has a disabling cough or shortness of breath but does not know that his injured condition has anything to do with his working conditions. It is satisfied when he knows that his injured condition is capable of being attributed to his working conditions, even though he has no inkling that his employer may have been at fault.”\n[42]\nD.6 Further issues\n90.\nIn most cases, the application of section 31 presents no difficulty.\n(a)\nHaving identified, from the pleadings and, in so far as relevant, any other materials,\n[43]\nthe damage and the acts or omissions from which such damage is said to have resulted, it becomes a question of fact when the plaintiff first had actual knowledge of the damage and its level of seriousness (applying the objective standard of seriousness laid down by section 31(5)(a)), as well as actual knowledge of the attributability of that damage to the acts or omissions in question.\n(b)\nIf the court finds that such actual knowledge did exist as from a particular time, the secondary limitation period is deemed to commence running from that moment on and no further consideration of the section’s operation is required. It proceeds to determine whether the action was commenced before expiry of the secondary limitation period. Many cases will be decided at this point.\n(c)\nTo the extent that the court finds that the plaintiff lacked such actual knowledge, it goes on to consider whether, given the facts observable or ascertainable by him, the plaintiff ought reasonably to have such knowledge imputed to him under section 31(7), applying the objective standard contained in that provision. It is likely that the great majority of cases can be resolved at this stage.\n91.\nHowever, the experience of the courts has been that in some cases, further issues arise for resolution. These are issues concerning the quality and scope of the knowledge possessed by or imputed to the plaintiff. Having gone through the process described in the preceding paragraph, the court may arrive at the conclusion that the plaintiff’s actual or imputed knowledge was incomplete or lacking in detail or involved a significant degree of uncertainty. Does knowledge with such characteristics qualify as knowledge within section 31 so as to set time running? What tests or standards should one apply for drawing the line between knowledge which is too uncertain or too vague and knowledge which suffices?\nD.6a The quality and scope of the knowledge\n92.\nThese issues stem from the immense variety of possible types of damage and their interaction with the almost limitless permutations of conduct which may be alleged to constitute negligence. They are issues which can arise in the context of both section 31(5)(a) and section 31(5)(b): To what degree of certainty must the plaintiff know (or be taken to know) that he has in fact suffered damage and that such damage is sufficiently serious? How certain, complete and detailed must his knowledge (or imputed knowledge) be of the attributability of such damage to the acts or omissions subsequently alleged to constitute negligence?\n93.\nOne example of a case where such issues arose in the personal injury context is\nNash v Eli Lilly & Co\n,\n[44]\nwhich concerned wide-ranging side-effects experienced by users of a drug called “Opren”, licensed to be used in the treatment of arthritis. Some plaintiffs suffered from photosensitivity and others from onycholysis, being a condition damaging to finger and toe nails. Some suffered from conditions said to be “to a large extent subjective, eg irritation, pain, dizziness, etc,”\n[45]\nwith little to be seen by way of organic damage. Yet others suffered from serious complications such as liver and kidney failure, resulting in some cases, in death.\n[46]\nPlainly, it would not have been easy for some of these plaintiffs to be confident of the fact and extent of the damage suffered or confident of attributing their particular side-effects to the drug. There would in some cases have been difficulty in drawing a “distinction between an expected, or accepted, side effect, and an injurious and unacceptable consequence of taking a prescribed drug.”\n[47]\nAt what point is equivocal knowledge of this sort, located somewhere in a spectrum of suspicion and belief, sufficient to start time running under section 31? I turn to consider the solutions developed in the case-law.\nD.6b Where knowledge has a significant degree of uncertainty\n94.\nIt has, of course, always been acknowledged that the knowledge which triggers the secondary limitation period does not have to involve the plaintiff knowing anything “for certain”. Life seldom lends itself to such certainty and such a high standard would in practice be likely to mean that the secondary limitation period is routinely extended to the limit of the 15 year cap under section 32. Thus, in\nHalford v Brookes\n,\n[48]\nLord Donaldson of Lymington MR stated (as to the degree of certainty of knowledge regarding the identity of the defendant):\n“The word has to be construed in the context of the purpose of the section, which is to determine a period of time within which a plaintiff can be required to start any proceedings. In this context ‘knowledge’ clearly does not mean ‘know for certain and beyond possibility of contradiction’. It does, however, mean ‘know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence’. Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice.”\n95.\nHalford v Brookes\nwas an unusual case. A mother, suing as the personal representative of her daughter whom she had strong reason to believe had been murdered by either one or other of two defendants, could not be sure to which of these men’s actions her daughter’s death should be attributed. The court held that “attributable” in the equivalent of our section 31(5)(b) meant “capable of being attributed”\n[49]\nand that this applied to both men who could be made defendants in the alternative, there being no need for the plaintiff to have any greater degree of certainty to start time running. On the strict application of the secondary limitation period, the case was held to be time-barred since the mother had possessed the requisite knowledge at an early stage. But as it was a personal injury claim, the court had, and decided to exercise, a discretion to override the limitation period and permit the action to continue.\n96.\nIn\nNash v Eli Lilly & Co\n, the “Opren” case, Purchas LJ proposed a standard of certainty similar to that suggested by Lord Donaldson MR:\n“In applying the section to the facts of these cases, we shall proceed on the basis that knowledge is a condition of mind which imports a degree of certainty and that the degree of certainty which is appropriate for this purpose is that which, for the particular plaintiff, may reasonably be regarded as sufficient to justify embarking upon the preliminaries to the making of a claim for compensation such as the taking of legal or other advice.”\n[50]\n97.\nThe answer which their Lordships gave in these two cases was therefore a pragmatic one: the plaintiff’s knowledge is to be treated as sufficient for setting time running from the moment when a reasonable person would have regarded it as certain enough “to justify embarking upon the preliminaries to the making of a claim for compensation such as the taking of legal or other advice”. He would then have three years to bring preparations to a stage when a writ could be issued. However, a reasonable person could be expected to refrain from taking such steps while the knowledge remained too scanty or too vague or amounted only to speculation or unsubstantiated suspicion. This introduces the third objective standard mentioned above. It obviously plays a role different from the two objective standards previously discussed. It is an approach which has often since been adopted.\n[51]\n98.\nIt is my respectful view that this approach involves an entirely legitimate and necessary purposive construction of section 31. That provision is centred around ascertaining when the plaintiff first had “the knowledge required for bringing an action for damages in respect of the relevant damage” as stated in section 31(1)(a). That concept is defined in subsections (5), (6) and (7). But those definitions have been found not to be exhaustive, leaving further issues concerning the quality and scope of the knowledge possessed by or imputed to the plaintiff to be dealt with. In seeking to address the issue concerning the degree of certainty required, Lord Donaldson MR and Purchas LJ returned to the central concept of “the knowledge required for bringing an action.” The pragmatic threshold of certainty which they adopted implements the basic statutory purpose of section 31, asking: At what point in time did the knowledge become certain enough objectively to justify taking the first steps in the bringing of an action?\nD.6c Uncertainty in the context of legal liabilities\n99.\nAs noted above, one form of damage which completes the cause of action in negligence is the incurring of legal liability. This raises two particular issues in relation to the certainty of knowledge.\n100.\nIn the first place, since the incurring of such a liability is a legal construct and not in itself physically perceptible, there may be cases where the plaintiff has no knowledge whatsoever that he has incurred such damage and only finds out when he is visited with some palpably detrimental consequences, such as when a demand is made by mortgagees in respect of a debt which he did not previously know had been secured on the property in question.\n[52]\nIt was on this basis that the House of Lords in\nHaward v Fawcetts\noverruled\nHF Pension Trustees v Ellison\n,\n[53]\na case where trustees of a pension scheme were wholly unaware that a reorganization and transfer of surplus monies effected under legal advice constituted an invalid exercise of a fiduciary power which attracted potentially irrecoverable tax liabilities.\n[54]\n101.\nSecondly, even where a plaintiff knows that he has attracted a potential liability to a third person as a result of the acts or omissions of the defendant, uncertainty may exist as to whether such liability will ultimately crystallize in favour of that third person so as to be translated into actual financial loss.\n102.\nIssues of this kind are resolved by applying the pragmatic objective test referred to above. If the potential for being made liable to the third party is real enough to lead a reasonable person to conclude that steps preliminary to the commencement of proceedings against the defendant ought to be taken, the plaintiff is taken to have sufficiently certain knowledge to set time running for the purposes of section 31. Consistently with this approach, Lord Nicholls held that time does not begin to run against a claimant until he knows there is “a real possibility”that his damage was caused by the act or omission in question.\n[55]\nAnd Lord Brown considered it sufficient if Mr Haward “knew that his loss\nmight well have\nresulted from an investment made on Fawcetts’ advice.”\n[56]\nD.6d Where knowledge is incomplete or lacking in detail\n103.\nIn the plaintiff’s pleadings, the acts or omissions alleged to constitute negligence are likely to have been particularised in a number of alternative ways aimed at covering a variety of findings that may be made at the trial. Such particulars may have been fashioned for various legal purposes, such as for bringing the case within a precedent favourable to the plaintiff. They are obviously not intended to describe what the plaintiff actually came to know about the attributability of the damage to the defendant’s acts or omissions now said to amount to negligence. Nor should section 31 be construed as requiring the plaintiff to have detailed knowledge of the matters set out in such particulars before he is treated as having the knowledge required to set time running. What matters is the plaintiff’s knowledge of what lies at the core of the pleaded case.\n104.\nThat is the principle developed in the case-law. As Hoffmann LJ put it in\nBroadley v Guy Clapham & Co\n:\n[57]\n“Section 14(1)(b) [the equivalent for our purposes of section 31(5)(b)] requires that one should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had, in broad terms, knowledge of the facts on which that complaint is based.”\n105.\nThe requisite knowledge is not of the acts or omissions as pleaded, but knowledge of the facts constituting “the essence of the complaint of negligence” distilled from such pleading.\n[58]\nLord Nicholls summarises some of the authorities in the following terms:\n“Consistently with the underlying statutory purpose, Slade LJ observed in\nWilkinson v Ancliff (BLT) Ltd\n[1986] 1 WLR 1352\n, 1365, that it is not necessary for the claimant to have knowledge sufficient to enable his legal advisers to draft a fully and comprehensively particularised statement of claim. Where the complaint is that an employee was exposed to dangerous working conditions and his employer failed to take reasonable and proper steps to protect him it may well be sufficient to set time running if the claimant has ‘broad knowledge’ of these matters. In the clinical negligence case of\nHendy v Milton Keynes Health Authority\n[1992] 3 Med LR 114, 117-118, Blofeld J said a plaintiff may have sufficient knowledge if she appreciates ‘in general terms’ that her problem was capable of being attributed to the operation, even where particular facts of what specifically went wrong or how or where precise error was made is not known to her. In proceedings arising out of the manufacture and sale of the drug Opren Purchas LJ said that what was required was knowledge of the ‘essence’ of the act or omission to which the injury was attributable:\nNash v Eli Lilly & Co\n[1993] 1 WLR 782\n, 799. In\nSpargo v North Essex District Health Authority\n[1997] PIQR P235, P242 Brooke LJ referred to ‘a broad knowledge of the essence’ of the relevant acts or omissions ...”\n[59]\n106.\nThese formulations make the important point that the section does not require the plaintiff to have had knowledge of the full-blown pleaded facts. But it may well be said that notions like “the essence” of the complaint, “broad knowledge” of the facts, an appreciation of the problem “in general terms” and “a broad knowledge of the essence” are not very informative as standards to be applied.\n107.\nOnce again, as Hoffmann LJ held in\nBroadley v Guy Clapham & Co\n, a purposive construction leads to application of the pragmatic objective standard discussed above for guidance as to when the plaintiff’s knowledge should be regarded as sufficiently complete and detailed. His Lordship stated:\n[60]\n“How does one determine the ‘essence’ of the act or omission? The purpose of s 14(1), as Lord Donaldson MR pointed out in\nHalford v Brookes\n[1991] 3 All ER 559\nat 573,\n[1991] 1 WLR 428\nat 443 is to determine the moment at which the plaintiff knows enough to make it reasonable for him to begin to investigate whether or not he has a case against the defendant. He then has three years in which to conduct his inquiries and, if advised that he has a cause of action, prepare and issue his writ. Ordinarily it will suffice that he knows that the injury was caused by an act or omission of the defendant. But there may be cases in which his knowledge of what the defendant did or did not do is so vague and general that he cannot fairly be expected to know what he should investigate.”\nD.6e The knowledge must extend to all the essentials\n108.\nThe proposition that the plaintiff must know “the essence” of the complaint has two aspects. We have seen that it means that he does not need to know all the pleaded details. But it also means that he must know or be taken to know all the essential facts necessary to constitute the claim before time starts running against him. That is not to say that he must know he has a good claim in law.\n[61]\nSuch knowledge is plainly made irrelevant by section 31(6). What it does mean is that he must be shown to have actual or imputed knowledge of all the facts which are essential to the complaint which is eventually formulated as his negligence claim.\n109.\nAs Lord Mance points out, this is indicated by the language of section 31(5)(b):\n“Turning to the phrase ‘the act or omission which is alleged to constitute negligence’, the word ‘constitute’ is in my view significant. It indicates that the claimant must know the factual essence of what is subsequently alleged as negligence in the claim.”\n[62]\n110.\nAs Hoffmann LJ explains in\nHallam-Eames v Merrett Syndicates\n,\n[63]\nit would be an over-simplification to read section 31(5)(b) as merely requiring the plaintiff to have known that his damage had been caused by an act or omission of the defendant. That provision:\n“... speaks of the damage being attributable to the act or omission which is alleged to constitute negligence. In other words, the act or omission of which the plaintiff must have knowledge must be that which is causally relevant for the purposes of an allegation of negligence. ... He must have known the facts which can fairly be described as constituting the negligence of which he complains. It may be that knowledge of such facts will also serve to bring home to him the fact that the defendant has been negligent or at fault. But that is not in itself a reason for saying that he need not have known them.”\n[64]\n111.\nThis passage has often been followed and was approved in\nHaward v Fawcetts\n.\n[65]\nHowever, deciding what facts should be characterised as part of the essentials can give rise to difficulty. This is illustrated by\nDobbie v Medway Health Authority\n,\n[66]\na case in which the plaintiff, who had detected a lump in her left breast underwent surgery, believing that this was in order to have the growth removed and diagnostically examined. However, upon excising the lump, the surgeon thought it appeared to be cancerous and he proceeded, without her prior consent, to perform a mastectomy. The growth was in fact found to be benign. On coming round from the anaesthetic, the plaintiff was horrified to learn that her left breast had been removed but accepted the view of the surgeon and the nurse “that she was very fortunate that the growth had not proved to be malignant”. But she was devastated by loss of her breast and suffered not merely that physical injury but also serious psychological harm in consequence. It was not until some 15 years later that she realised, from hearing about a similar case, that the breast should not have been removed prior to a biopsy. She issued the writ a year later. The issue was whether her state of knowledge had been such as to have triggered the secondary limitation period long before it could save her action from being time-barred.\n112.\nSir Thomas Bingham MR held that “the essential thrust of the case was that the breast should not have been removed until the lump had been microscopically examined and found to be malignant.”\n[67]\nOn this footing he found that she had, from an early stage, knowledge of all the essentials so that the secondary limitation period had long expired:\n“The personal injury on which the plaintiff seeks to found her claim is the removal of her breast and the psychological and physical harm which followed. She knew of this injury within hours, days or months of the operation and she, at all times, reasonably considered it to be significant. She knew from the beginning that this personal injury was capable of being attributed to, or more bluntly was the clear and direct result of, an act or omission of the health authority. What she did not appreciate until later was that the health authority’s act or omission was (arguably) negligent or blameworthy. But her want of that knowledge did not stop time beginning to run.”\n[68]\n113.\nIn\nHallam-Eames v Merrett Syndicates\n,\n[69]\nHoffmann LJ, illustrating by reference to the\nDobbie\ncase the need for the plaintiff to have actual or imputed knowledge of all the essential facts which constitute the claim, emphasised that it would not have been enough merely to assert that she knew, as she obviously did, that her left breast had been removed. The essential additional fact which she had to know to constitute the required knowledge and to set time running was that it was a healthy and not a cancerous breast that had been removed :\n“If one asks on common sense principles what Mrs Dobbie was complaining about, the answer is that the surgeon had removed a healthy breast. It would in our view be a seriously incomplete statement of her case to say that it was simply that the surgeon had removed her breast. This is not a matter of elaborating the detail by requiring knowledge of precisely how he had come to do the act complained of, such as this court rejected in Broadley. It was part of the essence of her complaint. Nor is it requiring knowledge of fault or negligence. The court’s emphatic rejection of such a requirement is entirely consistent with characterising the act complained of (and of which knowledge was therefore required) as the removal of a healthy breast.”\n114.\nOne readily sees the necessity of requiring the plaintiff at least to know that the removed breast had not in fact harboured a cancerous growth and that there had been no diagnostic examination before its removal, if time was to run against her. One can, however, also see the attraction of characterising the essentials of her complaint as having additionally to include the proposition that removal of a breast merely on the surgeon’s suspicion that the growth was cancerous and without a biopsy was not accepted medical practice – something that she did not discover until 15 years later. However, it is understandable that such argument was rejected as shading too far into a requirement for knowledge that the surgeon had acted negligently, which is territory forbidden by section 31(6). I venture to suggest that in the light of\nA v Hoare\n,\n[70]\na similar case to\nDobbie\noccurring in the future might well find the court more willing to exercise the personal injury discretion to override the limitation period, especially in the light of the plaintiff having been advised by the surgeon and the nurse that she had had a fortunate surgical outcome, thereby putting her off the scent and contributing greatly to her delay.\n[71]\nD.7 Legal advice and section 31(7)\n115.\nThe position taken by both parties during submissions was that section 31(7), which deals with imputed or constructive knowledge, has no application to the taking of legal advice. In my view, that is too broad and undifferentiated a proposition.\n116.\nTwo matters might be suggested in favour of excluding section 31(7)’s application to the giving of legal advice, namely:\n(a)\nthat section 31(6) provides: “Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (1)”; and\n(b)\nthat section 31(7)(b) confines the imputation to knowledge which the plaintiff might reasonably have been expected to acquire “from\nfacts\nascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek.”\n117.\nTo take the first of these, section 31(6) operates to make it clear that time may run against a plaintiff even though he has no idea that the acts or omissions of the defendant involved negligence as a matter of law. It follows that it is never relevant to ask whether the plaintiff knew that such acts or omissions involved negligence on the defendant’s part. It also must follow that it is never relevant to invoke section 31(7) with a view to establishing that the plaintiff ought to have such knowledge of the defendant’s negligence imputed to him. But that is the limit of section 31(6)’s impact on section 31(7). There is nothing in section 31(6) to suggest that it operates so that the expert advice of a lawyer on topics other than the defendant’s liability to the plaintiff can never be “appropriate expert advice” or advice “appropriate to act on” within the meaning of section 31(7)(b).\n118.\nThe second matter centres on the word “facts” in section 31(7)(b). A person, it might be said, goes to a lawyer for advice on the law and not about facts. Accordingly, one would not expect the plaintiff to acquire knowledge from facts which he has ascertained with the help of expert legal advice since that is not the function of such advice. Therefore, so the argument runs, section 31(7) has no role to play in connection with legal advice. In my view, this argument over-simplifies the nature of the advice which a client seeks and obtains from his lawyer.\n119.\nSection 31(7) might of course have no application in a situation where the plaintiff seeks advice purely on some point of law, for instance as to whether under Hong Kong law a company can operate with only one director or whether we have the equivalent of American anti-trust legislation. However, it must be very rare for advice to be sought purely on a point of law. A client does not go to a lawyer for an academic seminar but to ascertain matters of factual relevance to himself. He may for instance wish to find out, to use commercial rather than legal terms, what his “exposure” is or what financial consequences he faces in a particular situation: how much he might have to pay or be able to recover following a failed transaction; whether he may have difficulties realising security taken for a loan; or whether his insurers might refuse to indemnify him for a loss; or how much tax he has to pay; and so forth. These are all factual matters and may constitute damage which has already occurred or which may be looming in the future. Simply because the lawyer, in giving the advice is likely to refer to a statutory provision or principle of the common law in support of his conclusions, does not eclipse the factual dimensions of the advice given which may be important in a limitation context. It is therefore my view that advice obtained from lawyers in such circumstances is capable of being characterised as advice about “facts ascertainable by [the plaintiff] with the help of appropriate expert advice”, although, as it happens, resort to such imputed knowledge is unnecessary in the present case.\nE. Kensland’s claim and the secondary limitation period\nE.1 Kensland’s case on knowledge\n120.\nIn Section B.1 above, the damages claimed by Kensland have been set out together with the factual basis of such claims: HK$8 million to recover the damages Kensland was held liable to pay to Whale View; HK$2,767,407.33 to recover legal fees incurred; and HK$17,980,000 to compensate for “the diminution in value [of the premises] between 9 September 1997 and 19 May 1998”. They are all pleaded to be attributable to the “negligent legal advice by [TTC]” consisting of the particularised acts and omissions referred to above.\n121.\nFinancial detriment of this magnitude is plainly sufficiently serious on the objective standard imported by section 31(5)(a). Neither can there be any doubt that insofar as Kensland knew or is taken to have known that it had incurred such damage, it must have known or could be taken to have known that it was attributable to the advice given by TTC and acted upon by Kensland.\n122.\nSo the crucial question is: When, as a matter of fact, did Kensland first have knowledge (or to the extent necessary, imputed knowledge) that it had incurred such damage? Unless its date of knowledge fell within the three-year period immediately preceding 13 January 2004 when the writ against TTC was issued, the secondary limitation period does not save the claim from being statute-barred.\n123.\nKensland puts forward as its date of knowledge, 23 January 2001 which does fall within that three-year period. That was when the Court of Appeal handed down judgment in the original proceedings. Kensland argues that it did not have the required knowledge until it knew, as a result of that judgment, that the advice it had received from TTC was wrong:\n“... it is necessary to know that the advice was wrong, because without that knowledge, there was no knowledge of a loss and so no knowledge of the facts which constitute the cause of action.”\n[72]\nE.2 The facts relating to Kensland’s actual knowledge\n124.\nTo put Kensland’s argument in a proper context, the facts relating to its rejection of the tendered purchase monies and the events which followed must be examined.\n125.\nAccording to Ms Yeung, shortly after payment had been tendered by Whale View at 1:06 pm on 2 September 1997 she received a phone call from a Mr Tang of TTC who advised her that Whale View had repudiated the contract and that Kensland was entitled to rescind the agreement and to forfeit the deposit. She adds:\n“... Mr Tang said to me that if I decided to rescind the Agreement, the other side might argue that the late delivery of the cheques was caused by [Kensland’s] delay in giving the instructions on the split cheque arrangement. However, he then said to me that he thought ‘one and a half hour’ would be regarded as sufficient time for the preparation of the split cheques.”\n[73]\n126.\nMs Yeung records that when she went to Mr Tang’s office a little later that afternoon, he advised her that :\n“... the other side might sue [Kensland] to get back the deposit. However, he told me that the chances of their succeeding were very low.”\n127.\nLater that day, TTC received a letter from TPY (which TTC forwarded to Kensland) asking whether TTC had instructions to accept service of proceedings and stating:\n“We … wish to place on record that [after a fax received at 11:12 a.m.] ... correct instructions were only given to us by telephone ... at around 11:45 a.m. You have given us effectually one hour and fifteen minutes to arrange for the issue of cashier orders for completion. ... Your delay in advising us the manner in which the balance of the purchase price is to be paid has left us with an unreasonably short period of time to arrange the cashier order for completion.”\n128.\nOn the following day, Whale View’s writ claiming specific performance and damages was served and a\nlis pendens\nregistered. In the Statement of Claim which followed on 16 October 1997, Whale View pleaded an implied term that the split cheque directions should be given within a reasonable time before the deadline for completion, that the time allowed was not reasonable and that Kensland was accordingly not entitled to rescind and was liable for the relief claimed.\n129.\nOn 28 October 1997, Kensland filed a Defence stating: “If, which is not admitted, there was an implied term [to give the directions allowing a reasonable time] the defendant says that such reasonable time is 1 hour”.\n130.\nBy mid-November 1997, the property market had collapsed and on 14 November 1997, reflecting Kensland’s realisation that the value of the property had fallen sharply, TTC wrote to counsel instructing him to advise on questions including the following:\n“(1) Can [Kensland] bind [Whale View] to purchase the said property at the price of HK$55,000,000 if we take out a Summons (or write a letter) admitting [its] claims or submitting to judgment as claimed?\n(2) In such event, can [Whale View] amend ... to avoid purchasing the property if [it] takes note that the property is now worth much less than HK$55 million? ...\n(4) If [Kensland] successfully admits [Whale View’s] whole claim and [Whale View] accepts such admission, what is the likely quantum of damages which [Whale View] can recover?\n(5) If [Whale View] withdraws its claim for specific performance, can [Kensland] successfully apply to vacate the lis pendens from the Land Registry?”\n131.\nBy this time, some HK$78,300.00 in legal costs had been incurred.\n132.\nOn 19 December 1998, Kensland changed its solicitors, TTC ceasing to act, although no evidence was filed as to why this occurred.\nE.3 What Kensland knew\n133.\nOn the foregoing facts, there can be no doubt that Kensland had actual knowledge of its having incurred serious financial damage from the outset and well before the start of the relevant three-year period in January 2001.\n134.\nThe first head of damage consisted of the liability to Whale View arising upon Kensland’s refusal to complete on 2 September 1997. Kensland knew full well on that very day that in doing so, it ran the risk of being held liable for breach of the agreement. That was what Ms Yeung was told by Mr Tang, even before Kensland decided to refuse the payment. This is not one of those cases where the plaintiff contracted a liability without having any inkling that this has occurred.\n135.\nThe risk of being held liable to Whale View was manifestly brought home to Kensland by TPY’s letter delivered later on 2 September and by Whale View’s writ issued the next day. The particulars of Whale View’s claim based on an implied term – essentially upheld in the Court of Appeal and in this Court – were set out in the Statement of Claim so that by 16 October 1997 Kensland knew in detail how it was at risk.\n136.\nWhat Mr Scott’s argument actually amounts to is the contention that Kensland was not fixed with the required knowledge because it did not know\nfor certain\nthat liability for breach of the agreement would be established until the court declared that such was the position. But, as we have seen,\n[74]\nknowledge as a certainty is not the standard. Rather, applying the objective standard developed by the courts regarding certainty of knowledge,\n[75]\none must ask at what point in time the potential for being held liable to Whale View would have been regarded by a reasonable person as sufficiently real to lead him to conclude that taking steps preliminary to the commencement of proceedings against TTC would be justified.\n137.\nIt is true that on 2 September 1997, Ms Yeung was being advised by Mr Tang that the risk was low. But on any objective assessment, the risk ought to have been seen as very significant. The precariousness of Kensland’s position is brought out by the plea in its Defence that a “reasonable time” for completion “is one hour.” Bearing in mind that Whale View had written on 2 September complaining that 1 hour and 15 minutes had insufficiently been allowed, Kensland’s defence rested on the slim margin of about 15 minutes. Concepts of “reasonableness” are obviously to some degree impressionistic and commonsense dictates that no one could be confident in drawing such a fine line to separate what would, from what would not, constitute a “reasonable time” in this context.\n138.\nMoreover, whatever confidence might have been exuded in the advice received on 2 September, it is clear from the letter to counsel dated 14 November that, at least by then, Kensland fully appreciated that if it lost or admitted the other side’s case, an award of damages would be faced and was seeking advice as to its likely quantum. Additionally, the possibility that the advice received may have been wrong and that the advising solicitors may have been negligent must have occurred to Kensland when they saw Whale View joining TPY as alternative defendants in their writ. There can accordingly be no doubt that, so far as damage in the form of liability to Whale View was concerned, Kensland’s actual awareness was at an ample level of certainty and detail to qualify as knowledge within section 31.\n139.\nFurthermore, as we have seen, Kensland’s case is not merely that it had suffered damage in the form of such liability. It also claims damages in respect of damage incurred by having to pay legal costs and in suffering the property’s fall in value. By 15 November 1997, Kensland knew that it had already incurred legal costs totalling $78,300.00 and that the property was “worth much less than HK$55 million”. There was no element of uncertainty or vagueness regarding such damage although the precise quantification of each head of loss was something for the future. As noted above,\n[76]\nthe need for quantification does not detract from the earlier accrual of the cause of action. Moreover, as previously noted, Kensland agreed with Whale View that its liability to pay interest should date from 3 September 1997. Additionally, in its own pleadings, Kensland crystallizes the loss in the value of the premises, presumably a matter within its own knowledge, in the sum of $17.98 million as at 19 May 1998, a date well before the start of the relevant three-year period. There was, in brief, nothing latent about the damage incurred.\nF. Conclusion\n140.\nKensland plainly had actual knowledge about the relevant damage with a sufficient degree of certainty for section 31 purposes commencing on 2 September 1997. The damage and actual knowledge thereof were added to in the period leading to mid-November 1997 and supplemented further in the period up to 19 May 1998, all well before the secondary limitation period can make any difference. It is unnecessary to consider any imputed knowledge. Kensland’s case is that the damage flowed from its acting on TTC’s advice when it refused to complete the contract. It obviously knew that it was acting on such advice. It therefore knew that such damage was attributable to TTC’s acts and omissions representing the advice tendered. Kensland’s claim is accordingly, in my view, statute-barred and the appeal must be dismissed.\n141.\nI would finally add that where a plaintiff’s reliance on section 31 is sought to be challenged in advance of the trial, this should generally be by trial of a preliminary issue so that all relevant evidence can be adduced and tested. As it happens, the materials available to the court in the present case were sufficient to allow the claim to be struck out in the exercise of the court’s inherent jurisdiction. However, even then, certain issues of possibly relevant fact were unresolved, such as why Kensland changed solicitors in December 1998 and on what basis the value of the property was said to have dropped by HK$17.98 million as at 19 May 1998. Issues such as these ought to be investigated, with oral evidence if necessary, on the trial of a preliminary issue. If the facts had been less unequivocal, adoption of the striking-out procedure would have involved a waste of time and costs since an arguable question of whether Kensland’s case was time-barred would have had to be examined afresh at the trial.\nMr Justice McHugh NPJ:\n142.\nKensland Realty Limited (in compulsory liquidation) (“Kensland”) appeals against an order of the Court of Appeal which ordered that Kensland’s action for damages for negligence against Tai, Tang & Chong (“TTC”), the respondent be dismissed. The first question in the appeal is whether Kensland’s action was commenced outside the six-year limitation period mandated by\ns.4\nof the\nLimitation Ordinance\n,\nCap. 347\n(“the Ordinance”)? If it was, two further questions arise. First, when did Kensland know such facts about its damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify instituting proceedings? Second, when did it know that that damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence on the part of TTC? If Kensland first obtained knowledge of either of these two matters within three years of commencing its action against TTC, s.31 of the Ordinance entitled it to bring the action, despite the action otherwise being barred by s.4 of the Ordinance.\n143.\nIn my opinion, Kensland’s claim against TTC was barred by s.4 of the Ordinance, and it was not entitled to the benefit of s.31 of the Ordinance because, over three years before it commenced its action, it knew facts about its damage that would lead a reasonable person to conclude that the damage was sufficiently serious to institute proceedings against TTC and knew that that damage was attributable to the acts or omissions of TTC that it alleges constitute negligence.\nThe material facts\n144.\nTTC were Kensland’s former solicitors who had advised Kensland on 2 September 1997 that it could lawfully terminate a contract for the sale of premises on the ground that the purchaser of the premises had tendered payment of the sale price after the expiration of the time for completion.\n145.\nIn June 1997, Kensland, which had agreed to buy shop premises from Delight Holdings Limited for HK$53 million, agreed to sell the premises to Whale View Investment Ltd (“Whale View”) for HK$55 million. The contract with Whale View had to be completed by 1 pm on 2 September 1997 at the offices of TTC. Under the contract, Kensland was entitled to direct how the balance of the purchase price was to be paid, and Whale View’s obligation to pay that balance was not discharged unless payment was made in the manner stipulated. On three occasions – the last on the morning of 2 September 1997, Whale View’s solicitors asked TTC for the breakdown of the cheques and the persons in whose favour they should be drawn. TTC did not answer any of the requests until 11:13 am on 2 September. And it was not until 11:48 am that Whale View’s solicitors were finally informed of the correct amounts to be paid to various parties. In all, eight cheques and two cashier’s orders were required to be drawn and paid. Realising that they would not meet the 1:00 pm deadline, the solicitors for Whale View asked TTC for an extension of time to complete, but TTC, after saying that it would seek instructions, did not contact the solicitors for Whale View before 1:00 pm. In the result, the solicitors for Whale View did not arrive with the required cheques and cashier’s orders until 1:06 pm.\n146.\nAccording to para.15 of Kensland’s Statement of Claim in the present action, TTC spoke to a director of Kensland shortly after this time and informed her that Whale View’s solicitors had failed to complete the purchase in time and that this constituted a breach of a material term of the agreement. TTC advised her that, because Whale View had repudiated the contract, Kensland was entitled to rescind the contract and forfeit the deposit. TTC also informed her that Whale View might challenge the rescission and seek the return of the deposit but its chance of succeeding in an action for these purposes was very low. Relying on this advice, Kensland terminated the contract.\n147.\nOn the following day, Whale View commenced proceedings against Kensland in which it claimed that the rescission was invalid, that the Court should order specific performance of the contract of sale and that the Court should assess its damages. It registered the writ as a lis pendens against the property. Kensland was kept fully informed of the progress of the action and the allegations made in Whale Views pleading and the terms of Kensland’s Defence to the action. By November 1997 Kensland had been invoiced for HK$78,300 for the costs of defending the action brought by Whale View.\n148.\nOn 14 November 1997, Kensland instructed TTC to admit Whale View’s claims. It also sought counsel’s advice on the possibility of admitting those claims and requiring Whale View to complete the purchase. This turnaround was motivated by the fact that “the property is now worth much less than HK$55 million”.\n149.\nThe trial of the action came before Deputy High Court Judge Gill who held that Whale View had repudiated the contract and that Kensland was entitled to damages. However, on 23 January 2001, the Court of Appeal allowed an appeal against these findings and held that it was Kensland who had repudiated the contract. It ordered Kensland to repay the deposit of HK$8.25 million and damages of HK$8 million together with interest at the rate of 10.5% from 3 September 1997. On 10 December 2001, this Court upheld the orders of the Court of Appeal but for different reasons. It held that, in the absence of an express clause to the contrary, where a contract for sale contains a clause empowering the vendor to give a direction concerning the manner of payment, there is an implied term arising from business efficacy to the effect that, if a direction is given, it will allow the purchaser a reasonable time to do what has to be done to comply with the direction prior to the time for completion. This Court held that the direction given at 11:13 am did not allow Whale View reasonable time to complete by 1:00 pm. Accordingly, Kensland had breached the implied term. Furthermore, because a party to a contract cannot take advantage of its own breach and because Kensland’s breach was the direct cause of Whale View’s failure to complete in time, Kensland could not treat that failure as a ground for terminating the contract. To the contrary, Kensland’s failure to accept the tender at 1:06 pm was itself a repudiatory breach of the contract entitling Whale View to damages.\n150.\nOver two years after this Court’s decision and almost three years after the Court of Appeal’s decision, on 13 January 2004 the liquidators of Kensland commenced an action for damages and interest thereon against TTC for negligent advice. Paragraph 19 of the Statement of Claim alleged that as a result of TTC’s negligent handling of Kensland’s affairs, it “has suffered damages”. Paragraph 21 gave “the particulars as to damages suffered by Kensland as the result of TTC’s negligent handling and advice concerning the sale and purchase of the property”: (1) HK$8 million, payable “as damages pursuant to the judgment of the Court of Final Appeal”; (2) HK$2,767,407.33, “paid by Kensland as legal fees”; and (3) HK$17,980,000, “being the diminution in value of the property following the non-completion of the sale”.\n151.\nParagraph 20 of the Statement of Claim pleaded six particulars of negligence. The first alleged that “TTC, for no good reason, failed to provide the instructions to [Whale View] within a reasonable time”. The second and third particulars alleged that TTC wrongly advised Kensland that Whale View’s late tender constituted a repudiation of the agreement and that instructions were given within sufficient time for the preparation of the cheques and cashier’s orders. The fourth particular alleged that TTC failed properly to review and consider the agreement, failed properly to advise on the basis thereof and in particular failed to advise that in law Kensland would not be entitled to take advantage of its own breach of the implied term. The fifth particular alleged that TTC failed to advise that, if Kensland’s delay in completion was due to its default, it would not be entitled to treat the agreement as repudiated. The sixth particular alleges that TTC failed generally to inform Kensland of the impact of the late instructions in the circumstances and failed to point out and advise fully of the risks involved in refusing to complete and of the very real risk of having to compensate Whale View.\n152.\nOn 26 May 2005, TTC issued a summons under RHC O.18 r.19 for an Order that the Statement of Claim be struck out on the ground that it was frivolous or vexatious or otherwise an abuse of the process of the Court. By a subsequent order, the parties were given leave to file and serve evidence in support of or opposition to the Orders sought. At first instance, Deputy High Court Judge Gill dismissed the Summons by TTC, but the Court of Appeal allowed an appeal by TTC and ordered that the action brought by Kensland be dismissed. Subsequently, this Court by a determination of the appeal committee gave leave to appeal against the order of the Court of Appeal.\nThe application to strike out\n153.\nAn order striking out a Statement of Claim, which is based on a limitation defence, can only be sustained if that defence is “manifestly and immediately destructive of the Plaintiff’s claim”:\nRonex Properties v. John Laing Construction Ltd\n[1983]\n1 QB 398\nat 408A;\nPeconic Industrial Development Ltd v. Yu Ka Hong\n[2006] 4 HKC 406\nat para.27. However, once a limitation defence is raised, the onus is on the plaintiff to prove that the cause of action relied upon accrued within the limitation period. In form, a limitation defence appears to be a defence of confession and avoidance. If it were, the onus of proof would lie on the party raising it. Indeed, the Full Court of the Supreme Court of Victoria has decided that, where the action concerns the occurrence of latent damage, the onus is on the defendant to plead and prove that the cause of action fell outside the period specified in the statute of limitations:\nPullen & Another v. Gutteridge Haskins and Davey Pty Ltd\n[1993] 1 VR 27\n. But courts in the United Kingdom and this Court have taken the opposite view. They have insisted that, although the defendant must raise and plead the limitation defence, once the defence is pleaded, the onus is on the plaintiff to prove that the cause of action accrued within the limitation period:\nDarley Main Colliery Co. v. Mitchell\n(1886)\n11 AC 127\nat 135;\nCartledge v. Jopling & Sons Ltd\n[1963] AC 758\nat 784;\nLondon Congregational Union v. Harriss & Harriss\n[1988] 1 All ER 15\nat 29;\nBank of East Asia v. Tsien Wui Marble Factory\n(1999) 2 HKCFAR 349\nat 384;\nHaward v. Fawcetts\n[2006] 1 WLR 682\nat 688, HL. Accordingly, Kensland carries the burden of proving that its claim fell within the limitation period.\nThe Limitation Periods\n(a) Section 4\n154.\nSection 4\nof the\nLimitation Ordinance\n,\nCap. 347\ndeclares that an action founded on simple contract or tort “shall not be brought after the expiration of six years from the date on which the cause of action accrued”.\n155.\nKensland contended that its cause of action had been brought within the six-year limitation period specified in s.4 of the Ordinance. It pointed out that a cause of action in tort does not accrue until damage is suffered: Coburn v. Colledge [1897]\n1 QB 702\n, CA. Moreover, the damage must be damage in a “real and substantial sense”: Bank of East Asia v. Tsien Wui Marble Factory\n(1999) 2 HKCFAR 349\nat 385, 388 and 390. In the usual case of an action based on the negligent advice of a solicitor, the cause of action arises when the advice is acted upon: Forster v. Outred & Co.\n[1982] 1 WLR 86\n; D W Moore & Co. v. Ferrier\n[1988] 1 WLR 267\n. However, Kensland contended that this was not the usual case. It argued that the outcome of its action in acting on the advice of TTC was unpredictable and that it suffered no damage before the decision of the Court of Appeal on 23 January 2001. Only then, so Kensland argued, could it or anyone else know that it had suffered damage. Until then, its liability to pay damages was contingent, not actual. Kensland sought to reinforce the argument by pointing out that it had succeeded at first instance in the High Court. Hence, so Kensland argued, its damage had not occurred earlier than 23 January 2001. Consequently, it contended that it could have commenced the present action at any time before 23 January 2007, and the present action, which was commenced on 13 January 2004, was well within the six-year limitation period specified by s.4 of the Ordinance.\n156.\nIn the courts below, Kensland conceded that it suffered damage and its cause of action arose in September 1997 when it acted on the advice of TTC in refusing to accept the late tender of payment by Whale View. In this Court, however, it sought to withdraw the concession. TTC did not oppose the withdrawal provided that it could rely on an affidavit whose tender had been rejected by Deputy High Court Judge Gill because of the concession. Kensland did not oppose TTC tendering and relying on the affidavit in question. Because that is so and the question is one of law on undisputed facts, it is a proper case for the Court to exercise its discretion and allow Kensland to withdraw its concession, despite the disadvantage of not having the benefit of the judgments of the courts below on the point: Adams (Deputy Federal Commissioner of Taxation (Victoria)) v. Chas. S. Watson Pty Ltd\n(1938) 60 CLR 545\nat 548.\n157.\nIn my opinion, however, the concession made by Kensland in the courts below was correct. A plaintiff suffers damage when that person incurs a liability to pay damages, and that is so even though the quantification of the damage is not then ascertainable: Wardley Australia Ltd v. State of Western Australia\n(1992) 175 CLR 514\nat 536 per Brennan J cited with approval by Lord Nicholls of Birkenhead in Nykredit Mortgage Bank Plc v. Edward Erdman Group Ltd (No.2)\n[1997] 1 WLR 1627\nat 1634 and by Lord Hoffmann in Law Society v. Sephton [2006]\n2 AC 543\nat 551. Thus, when a defendant’s negligent breach of a duty of care causes physical harm to the plaintiff or the plaintiff’s property, the defendant incurs a liability to pay damages from that moment. The time for bringing the plaintiff’s action runs from the moment that the plaintiff suffers damage. That the damage cannot be quantified, or is not known, at that moment is not relevant. If the plaintiff acquires a benefit at the same time as acquiring the liability, however, it may not be possible to determine whether the plaintiff has suffered damage until an adverse balance is struck between the benefit and the burden of the liability: Wardley Australia Ltd v. State of Western Australia\n(1992) 175 CLR 514\nat 536 per Brennan J. Similarly, if the damages are not payable until the happening of a further event, the plaintiff’s liability is contingent only and damage is not sustained until the event occurs: Wardley Australia Ltd v. State of Western Australia. Personal guarantees are cases that usually fall within this category.\n158.\nParagraph 21 of Kensland’s Statement of Claim sets out three heads of damage that it incurred as the result of TTC’s breach of duty. They were the liability to pay the damages that Whale View ultimately received – HK$8 million, the loss that it suffered in the diminution of the value of the property following non-completion of the sale – HK$17,980,000 and the consequential loss of legal fees incurred – HK$2,767,407.33. In acting upon the advice of TTC, Kensland did not obtain any benefit from Whale View or TTC. So no question of balancing benefit and burden arises. It is true that both the fact of its liability and the quantification of that liability had to await a judicial determination. But once that determination was made, both the liability and its quantification were fixed as from the date when Kensland acted upon the advice of TTC – 2 September 1997. Whale View was entitled to damages and interest thereon as from that date, and Kensland’s damage was incurred as at that date.\n159.\nIn contending that it had suffered no damage before the Court of Appeal gave its decision, Kensland sought to rely on the decision of the High Court of Australia in Wardley Australia Ltd v. State of Western Australia\n(1992) 175 CLR 514\n. In\nWardley\n, the High Court unanimously held that a claimant who had been induced by misleading conduct to give an indemnity did not suffer damage until it was called on to meet the indemnity. The Court rejected the argument that the indemnifier suffered damage on entering into the indemnity agreement. However in\nWardley\n, the indemnifier did not, and could not suffer, damage until it was called on to make good the indemnity. Until that time, its liability to pay damages was contingent only because it might never be called on to indemnify the party indemnified. The principle of that case has no application to a case such as the present where the determination of liability and damages is dependent upon a judicial decision. Judicial decisions determine the rights and liabilities of parties as at the date when the facts giving rise to those rights and liabilities arose. If the contrary were true, no defence under limitation statutes could succeed. Nor is there any valid analogy between the situation in\nWardley\nand the present case. The rights and liabilities of Whale View and Kensland were not fixed as at the date of the Court of Appeal’s decision or the date when this Court affirmed that decision. The Court of Appeal and this Court declared the rights and liabilities of Kensland and Whale View as they existed as at 2 September 1997, not January 2001 or December 2001. Neither the liability nor the damage suffered by Kensland arose on the handing down of those decisions which merely declared the pre-existing rights and liabilities of the parties.\n160.\nAccordingly, Kensland’s damage was suffered on 2 September 1997. As from that date, it had a liability to pay damages and interest thereon to Whale View. It was liable to pay nominal damages for its breach of contract as at that date even if Whale View had not suffered any actual damage. The damage flowing from that breach increased as time passed and eventually included the three heads of damage to which I have referred. However, for the purposes of s.4 of the Ordinance, Kensland suffered its damage on 2 September 1997, the date on which Whale View’s cause of action for damages arose. The present action, having been commenced more than six years after 2 September 1997, is therefore barred by s.4 of the Ordinance unless the case falls within s.31 of that Ordinance.\n(b) Section 31\n161.\nSection 31 of the Ordinance ameliorates the stringency of the operation of s.4. It provides:\n“(1) This section applies to any action for damages for negligence, other than one to which section 27 applies, where the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both-\n(a)\nthe knowledge required for bringing an action for damages in respect of the relevant damage; and\n(b)\na right to bring such an action,\n(referred to in this section as the ‘date of knowledge’) falls after the date on which the cause of action accrued.\n(2) The period of limitation prescribed by section 4(1) in respect of actions founded on tort shall not apply to an action to which this section applies.\n(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4).\n(4) That period is either-\n(a)\n6 years from the date on which the cause of action accrued; or\n(b)\n3 years from the date of knowledge, if that period expires later than the period mentioned in paragraph (a).\n(5) In subsection (1) ‘the knowledge required for bringing an action for damages in respect of the relevant damage’ (就有關損害而提出損害賠償訴訟所需的知悉) means knowledge-\n(a)\nof such facts about the damage in respect of which damages are claimed as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment;\n(b)\nthat the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence;\n(c)\nof the identity of the defendant; and\n(d)\nif it is alleged that the act or omission was that of a person other than the defendant, of the identity of that person and the additional facts supporting the bringing of an action against the defendant.\n(6) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (1).\n(7) For the purposes of this section or section 33 a person’s knowledge includes knowledge which he might reasonably have been expected to acquire-\n(a)\nfrom facts observable or ascertainable by him; or\n(b)\nfrom facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek,\nbut a person shall not be taken by virtue of this subsection or section 33 to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”\n(c) The history of s.31\n162.\nSection 31 is based on s.14A of the Limitation Act 1980 (UK) which was enacted to overcome the deficiencies in the law that existed in cases of latent injury or damage. It applies only to actions for the tort of negligence; it does not apply to an action for breach of contract or misrepresentation: Societe Commerciale de Reassurance v. ERAS (International) Ltd\n[1992] 2 All ER 82\n; Laws v. Society of Lloyd’s\n[2003] EWCA Civ 1887\n. Judicial exposition of the section is best understood by reference to the history of limitation legislation in the United Kingdom which led to the enactment of 14A of the Limitation Act 1980 (UK) through the medium of the Latent Damage Act 1986 (UK).\n163.\nThe long journey to s.14A began with the decision of the House of the Lords in Cartledge v. Jopling & Sons Ltd\n[1963] AC 758\nwhere the House held that a plaintiff who suffered pneumoconiosis as the result of the defendant’s negligence suffered damage as soon as he inhaled the noxious dust that caused the disease even though he did not become aware of the disease until long afterwards. Consequently, the House held that the plaintiff’s action was commenced after the expiration of the limitation period and his action was statute barred.\n164.\nTo overcome the injustice that arose from the decision in Cartledge v. Jopling & Sons Ltd\n[1963] AC 758\n, the United Kingdom Parliament enacted the Limitation Act 1963, whose meaning gave rise to controversy with various courts and judges interpreting it differently. In 1975, Parliament made a second attempt to cure the injustice that arose from\nCartledge\n. To overcome the perceived ambiguities in the 1963 legislation, it enacted what later became s.14 of Limitation Act 1980, which was a consolidation Act. As will appear, decisions on s.14 of that Act have been influential in interpreting s.14A.\n165.\nHowever s.14 was also deficient. It applied only to actions for damages consisting of or including personal injuries or death. It did not apply to actions for latent damage to property. Consequently, in Pirelli General Cable Works Ltd v. Oscar Faber & Partners [1983]\n2 AC 1\n, the House of Lords held that, because the plaintiff suffered damage when cracks first occurred in the chimney of its factory even though the plaintiff did not discover the damage until seven years later, the plaintiff’s action was commenced after the expiration of the limitation period. Accordingly the House held that the action was statute barred.\n166.\nTo overcome the injustice that the decision in Pirelli General Cable Works Ltd exposed, the Parliament enacted the Latent Damage Act 1986 (UK) which inserted s.14A in the Limitation Act 1980. Although there are differences both in form and verbiage between s.14A and s.31 of the Ordinance, these differences are not material. Consequently, decisions of the United Kingdom courts on s.14A would normally be persuasive authorities on the meaning of s.31 of the Ordinance.\n167.\nAs often happens with a much litigated section, however, the United Kingdom courts now tend to apply the judicial exposition of s.14A rather than its words. Unfortunately, as I see it, the judicial exposition in the United Kingdom has so far not been notably successful. This Court is not bound by judicial expositions by Courts in other jurisdictions, no matter how eminent is the stature of those Courts. That reminder is particularly important when the issue concerns the meaning of a statute. It is the text of the enactment, not the judicial expositions on similar statutes in other jurisdictions, that is binding. My preference would be to disregard the dicta with which the equivalents of s.31 have become encrusted, except in so far as they are helpful in applying it in particular circumstances, and apply what is to me, at least, the reasonably clear intention of the legislative text. I would have preferred this Court to develop its own jurisprudence on s.31. However, the parties conducted their cases within the framework of the judicial exposition of the equivalents of s.31. Because that is so, it would not be proper on this occasion to look at the section, stripped clean of the judicial exposition on the statutory equivalents of s.31 in the United Kingdom.\n168.\nHowever, it does not follow that this Court should automatically apply the United Kingdom decisions. Judges develop the common law and interpret statutes against a background of the social, moral, economic and political values and assumptions of the societies in which they work. Inevitably, these values and assumptions influence the development of the common law and the interpretation of legislative texts. But the values and assumptions of societies are not necessarily the same. This is the reason why the courts of former United Kingdom colonies have legitimately developed the common law of their countries so that it no longer retains its unity with the common law of the United Kingdom: Invercargill City Council v. Hamlin\n[1996] AC 624\nat 640 – 644 per Lord Lloyd of Berwick. It is also the reason that identical legislative texts may legitimately have different interpretations in different countries even in those countries that have inherited the rule of law and their legal systems from the United Kingdom: Geelong Harbor Trust Commissioners v. Gibbs Bright & Co.\n[1974] AC 810\nat 818 – 820 per Lord Diplock.\n169.\nIn interpreting s.14 and s.14A of the Limitation Act 1980 (UK), the United Kingdom courts have given those sections a restricted meaning with the result, as the great majority of the leading cases show, plaintiffs have difficulty in obtaining the benefit of those sections. Whether or not these restrictive interpretations reflect an underlying assumption that justice requires that defendants should not have to litigate stale claims, as may well be the case, it does not follow that this Court should slavishly follow the reasoning and dicta in the United Kingdom cases. Despite the parameters in which the parties litigated this case, the rational development of s.31 of the Ordinance requires this Court to depart from the reasoning and dicta of those cases when it is persuaded that their reasoning and dicta cannot be justified by the legislative text of s.31.\n(d) The construction of s.31\n170.\nAs the opening words of s.31 show, neither that section nor its UK counterpart is confined to cases of physical injury or physical damage. Cases of pure economic loss also attract the application of the section. In Haward v. Fawcetts\n[2006] 1 WLR 682\nat 698, however, Lord Walker of Gestingthorpe warned that the “wide range of claims to which section 14A may extend suggests that general observations made by the court in one type of case may not be directly apposite in a case of another type”. Although, as reported cases on s.14A in the United Kingdom show, the section is sometimes difficult to apply in cases of physical injury or property damage, it is usually harder to apply in cases of economic loss. This is especially so when the provisions of s.31(5)(a) and (b) have to be applied to cases of economic loss resulting from a solicitor’s negligence, as in the present case.\n171.\nSection 31(5)(a) is readily understandable and often easy of application when it has to be applied to the paradigm case of latent damage to property. In that case, it usually poses no difficulty to determine whether the plaintiff’s knowledge of “facts about the damage” would lead a reasonable person to consider the damage sufficiently serious to institute proceedings against a defendant who would not dispute liability. If the plaintiff knew that a chimney had cracks and also had constructive knowledge from “facts ascertainable by him with the help of appropriate expert advice”, s.31(7), that the chimney was liable to collapse, it is a simple matter of judgment as to whether a reasonable person would think those facts “sufficiently serious to justify his instituting proceedings”. Cases of latent physical injury may sometimes be more difficult of decision, but s.31(5)(a) also readily applies to them. The difficult cases are those of pure economic loss where the loss results from acting on professional advice. In cases concerning the professional advice of solicitors in particular, s.31(7) often does not have the scope for the operation that it has in other situations: see O’Sullivan, Limitation, latent damage and solicitor’s negligence 20 PN 218 at 219, 225.\n172.\nThe chief reason for this is that, in solicitors’ negligence cases, often there are no facts about the damage in any sense meaningful to a non-lawyer. It is legal advice or the lack of it in conjunction with facts in their ordinary sense that brings about the plaintiff’s damage in many cases concerned with a solicitor’s negligence. Without legal advice, facts – such as the contents of a document – may have no significance for the lay plaintiff. For example, a plaintiff who suffers damage because she executed a mortgage document with an “all moneys” clause in it may have no idea that she has suffered damage until she learns either from legal advice or the enforcement of the mortgage that she has suffered damage. And in such cases, it is the solicitor’s failure to give such advice that constitutes the case against him. It is unrealistic to conclude that, because a plaintiff had read or ought to have read the mortgage, that person knew the facts about the damage that he or she has suffered. As Janet O’Sullivan points out in Limitation, latent damage and solicitor’s negligence 20 PN 218 at 225:\n“[I]n cases of solicitor’s negligence it is impossible to retain this sharp division between the facts and the law. At its simplest, the claimant’s case may be that he suffered damage as a result of incorrect advice about the law: he cannot know he has suffered damage unless he knows that the legal advice was incorrect. Or the claimant may have read a particular document revealing that he has suffered damage (and thus have knowledge of its contents), but may not have appreciated its meaning or its legal significance, primarily because his solicitor has not taken care to explain it to him. Or a solicitor may fail to give advice in circumstances in which the claimant, quite reasonably, does not appreciate that the solicitor owed her any duty of care at all.\nIn a nutshell, the problem once again is that the ‘the fact v law’ distinction was first enacted to solve a personal injury issue, more particularly the problem of claimants suffering from asbestos related industrial disease, who knew the facts of their injury and that it had been caused by their working conditions, but had not been advised that they had a cause of action against their employer. This wording was adopted wholesale for cases other than personal injury in the Latent Damage Act 1986, with no mention or discussion of it in the proceeding Law Reform Committee Report, and is, it will be suggested, wholly ill-suited to cases of solicitor’s negligence.”\n173.\nBut even if the fact v law distinction is glossed over, there are other problems. The “facts about the damage” in pure economic loss cases are often not observable or ascertainable by the plaintiff and, because it is often reasonable for the plaintiff to rely on the advice of the solicitor, it cannot be said that the plaintiff “might reasonably have been expected to acquire” knowledge of facts “with the help of appropriate expert advice” even if legal opinions and predictions concerning legal or curial events are treated as “facts”. Because of the reliance factor, it is also often difficult to determine whether the plaintiff had knowledge “that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence”.\nThe United Kingdom decisions\n174.\nThe similarities in the terms and purpose of s.14 and s.14A are such that the United Kingdom case law on s.14 assists in considering the meaning of the comparable or identical terms in s.14A. Indeed, the speeches in the House of Lords in the leading case of\nHaward v. Fawcetts\n[2006] 1 WLR 682\n– a s.14A case – are replete with references to the case law on s.14. Because of the high similarity in the language of s.14A and s.31 of the Ordinance, the United Kingdom cases do give guidance on the meaning and application of s.31. But, as appears below, there are arguable difficulties in reconciling the judicial interpretation of the term “knowledge” with the text of the United Kingdom equivalents of s.31.\n175.\nIn\nHalford v. Brookes\n[1991] 1 WLR 428\nat 443 – a decision on s.14 – Lord Donaldson MR said that the purpose of the section was “to determine a period of time within which a plaintiff can be required to start any proceedings”. In\nBroadley v. Guy Clapham & Co.\n[1994] 4 All ER 439\nat 449, Hoffmann LJ agreed that this was the purpose of the section. And, in my view, it is also the purpose of s.14A and s.31 of the Ordinance.\n176.\nAs s.31(1) shows, the section is concerned with “the earliest date on which the plaintiff … had both … the knowledge required for bringing an action for damages in respect of the relevant damage; and … a right to bring such an action”. In the present case, it is common ground that Kensland had a right to bring the action. What is in dispute is whether it had the requisite knowledge.\n177.\nThe “knowledge required for bringing an action” means knowledge of the four matters specified in s.31(5). Time does not begin to run against the plaintiff for the purposes of the section unless that person had knowledge of those four matters:\nDobbie v. Medway Health Authority\n[1994] 1 WLR 1234\nat 1247 per Steyn LJ. If the plaintiff can establish that he or she did not have knowledge concerning any one of these matters until a date within three years of the commencement of his action in cases where the cause of action accrued more than six years before the action was commenced, the plaintiff obtains the benefit of s.31(4)(b). The legal onus is on the plaintiff to prove that he or she did not have knowledge of one or more of the matters in s.31(5) until a date within the three-year period in such cases. Forensically, however, the defendant will seek to show the opposite for the purpose of rebutting the plaintiff’s claim or, if possible, to establish positively that the plaintiff knew of each of the four matters more than three years before the commencement of an action that is otherwise statute barred.\n178.\nIn\nHalford v. Brookes\n[1991] 1 WLR 428\nat 443, Lord Donaldson MR said that the term “knowledge” has to be construed in the context of the purpose of the section. His Lordship went on to say:\n“In this context ‘knowledge’ clearly does not mean ‘know for certain and beyond possibility of contradiction.’ It does, however, mean ‘know with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking legal and other advice and collecting evidence.’ Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice.”\n179.\nIn\nHaward v. Fawcetts\n[2006] 1 WLR 682\nat 685, Lord Nicholls of Birkenhead said that this statement of Lord Donaldson MR “gave valuable guidance” “as to the degree of certainty required”. “In other words”, Lord Nicholls said, “the claimant must know enough for it to be reasonable to begin to investigate further”. In\nDobbie v. Medway Health Authority\n[1994] 1 WLR 1234\nat 1240, Sir Thomas Bingham MR said that Lord Donaldson’s test was not hard to apply. It involved, he said, “ascertaining the personal injury on which the claim is founded and asking when the claimant knew of it”.\n180.\nIn\nNash v. Eli Lilly & Co\n[1993] 1 WLR 782\nat 792, Purchas LJ, in giving the judgment of the Court of Appeal, said that it did not intend to lay down a definition for the purposes of the statute which Parliament had “left to speak for itself”. However, he went on to say that knowledge:\n“… is a condition of mind which imports a degree of certainty and that the degree of certainty which is appropriate for this purpose is that which, for the particular plaintiff, may reasonably be regarded as sufficient to justify embarking upon the preliminaries to the making of a claim for compensation such as the taking of legal or other advice.”\n181.\nIn\nBroadley v. Guy Clapham & Co.\n[1994] 4 All ER 439\nat 449, Hoffmann LJ expressed a view similar to that of Lord Nicholls and said that the purpose of s.14(1) was:\n“… to determine the moment at which the plaintiff knows enough to make it reasonable for him to\nbegin\nto investigate whether or not he has a case against the defendant. He then has three years in which to conduct his inquiries and, if advised that he has a cause of action, prepare and issue his writ. Ordinarily it will suffice that he knows that the injury was caused by an act or omission of the defendant. But there may be cases in which his knowledge of what the defendant did or did not do is so vague and general that he cannot fairly be expected to know what he should investigate. He will also not have reached the starting point if, in an unusual case like\nDriscoll-Varley v. Parkside Health Authority\n, he thinks he knows the acts and omissions he should investigate but in fact he is barking up the wrong tree.” (emphasis in original)\n182.\nThe courts have taken a strict view of a plaintiff’s obligation to investigate. In\nForbes v. Wandsworth Health Authority\n[1997]QB 402 the plaintiff had two operations on his leg which was subsequently amputated. Nine years later he consulted a solicitor who obtained an expert report which indicated that the leg could have been saved but for the negligent delay in carrying out the second operation. The Court of Appeal held that the claimant was fixed with constructive knowledge from about 12 to 18 months following the operation. Stuart-Smith LJ said (at 412):\n“It seems to me that where, as here, the deceased expected, or at least hoped, that the operation would be successful and it manifestly was not, with the result that he sustained a major injury, a reasonable man of moderate intelligence, such as the deceased, if he thought about the matter, would say that the lack of success was ‘either just one of those things, a risk of the operation, or something may have gone wrong and there may have been a want of care; I do not know which, but if I am ever make a claim, I must find out.’\nIn my judgment, any other construction would make the Act unworkable since the plaintiff could delay indefinitely before seeking expert advice and say, as the deceased did in this case, ‘I had no occasion to seek it earlier.’ He would therefore be able, as of right, to bring the action, no matter how many years had elapsed. This is contrary to the whole purpose of the Act which is to prevent defendants being vexed by stale claims which it is no longer possible to contest.”\n183.\nNothing in s.14, s.14A of the Limitation Actor s.31 of the Ordinance expressly refers to the investigation of a plaintiff’s case. But that requirement seems the inevitable construction of s.31(7) and its UK equivalents. The reference in that sub-section to “knowledge which he might reasonably have been expected to acquire … from facts observable or ascertainable by him; or … from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek” necessarily implies that the plaintiff will be fixed with facts whose observation or ascertainment can be determined objectively when they could reasonably have been obtained. And the words “which he might reasonably have been expected to acquire” imply a course of investigation by the plaintiff during which the plaintiff could be expected to observe or ascertain those facts.\n184.\nBut judicial statements about investigating whether the plaintiff has a claim or has a case or statements about beginning to investigate need to be read with care. They are relevant to the issue of constructive knowledge, not actual knowledge. They are concerned with the process by which the plaintiff becomes fixed with knowledge of facts that that person ought to have known. As will appear, I think that three of the Law Lords in\nHaward v. Fawcetts\n[2006] 1 WLR 682\noverlooked this vital distinction and led them into error. The questions posed by s.31(5)(a) – (d) are required to be answered by the actual knowledge of the plaintiff as supplemented by the deemed knowledge of those facts that “he might reasonably have been expected to have acquired”. But questions about whether the plaintiff has or might have a claim or should embark on an investigation of the claim have nothing to do with answering the questions posed by those four paragraphs. Not only does s.31(7) exclude negligence as an issue but s.31(5)(a) is concerned only with the extent of the damage being sufficient to institute proceedings on the hypothesis that the defendant does not dispute his or her liability.\n185.\nThe knowledge of a plaintiff that is relevant for the purposes of s.31 is (1) his actual knowledge concerning the matters referred to in s.31(5)(a) – (d) and (2) the deemed knowledge of those matters that “he might reasonably have been expected to acquire” (i) from facts observable or ascertainable by him and (ii) from facts ascertainable by him with the help of appropriate expert advice which it was reasonable for him to seek. The Court is then required to make a judgment as to whether the combination of actual and deemed knowledge constitutes “knowledge” of those four matters. The fact that s.31(7) requires constructive knowledge to be taken into account means that the ultimate issue of knowledge does not depend on the mental state of the plaintiff. Knowledge for the purpose of s.31(5) is a legal construct consisting of the plaintiff’s actual knowledge and the deemed knowledge that is imputed to that person. Because that is so, to my mind, “knowledge” in s.31(5) simply means “awareness” or “recognition”. In dealing with each paragraph in that sub-section, the Court asks itself whether it was more likely than not that the plaintiff was aware of or recognised the existence of the matters specified in that paragraph.\n186.\nProperly understood, I do not think that the statements of Lord Nicholls, Lord Donaldson MR, Purchas LJ or Hoffmann LJ to which I have referred were intended as an exhaustive description of the term “knowledge” in the United Kingdom equivalents of s.31(5). Rather they should be read as referring to the point in time when the plaintiff is required to find out more about bringing an action. In other words, they are directed to the s.31(7) situation; they are directed to the time when the plaintiff “might reasonably have been expected to acquire” (s.31(7)) further information about his or her case. If their Lordships had meant that a plaintiff had “knowledge” for the purpose of s.31(5)(a) – (d) as soon the plaintiff knew “enough for it to be reasonable to begin to investigate further”, the constructive knowledge provisions of s.31(7) would seem superfluous. It is hardly to be supposed that the plaintiff was to be fixed with knowledge of the facts referred to in s.31(7) before he had sufficient knowledge to require further investigation. If that is so, the point at which the plaintiff has “knowledge” for the purpose of s.31(5) cannot be the point at which it was reasonable for the plaintiff to investigate further.\n187.\nAlthough a literal reading of what was said by Lord Nicholls, Lord Donaldson MR, Purchas LJ and Hoffmann LJ supports a contrary view, I do not think that their statements should be so read. It would mean that time would run against a plaintiff not from when he or she had knowledge of all the matters specified in s.31(5)(a) – (d) but from the time when the plaintiff should begin to investigate whether those matters were present and whether he or she had a valid or arguable claim. That seems contrary to what the legislature intended to be the case.\nKnowledge “of such facts about the damage” – s.31(5)(a)\n188.\nThe first matter to which s.31(5) refers is knowledge “of such facts about the damage in respect of which damages are claimed as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment”. This paragraph draws a distinction between “the damage” and the “damages” that are claimed. It is knowledge of the “facts about the damage” that is relevant for the purpose of this paragraph, not knowledge of the damages that the plaintiff claims in the action. Section 31(5) also distinguishes between knowledge of “facts about the damage” in para.(a) and knowledge of “the damage” in para.(b).\n189.\nIt seems reasonable to conclude that “facts” in s.31(5)(a) include not only phenomena that are perceptible by or through the senses but also intellectual constructs such as systems, methods and expert opinions including predictions. Whether “facts about the damage” are “sufficiently serious” is a value judgment, and it is not to be supposed that the “reasonable person” of whom s.31(5)(a) speaks must always make that judgment unaided by expert advice as to the seriousness of the facts concerning that damage. It seems likely that s.31(7)(b), which refers to “facts ascertainable by him with the help of appropriate expert advice”, was enacted so that expert opinions that could reasonably be obtained would be considered in respect of the issues arising under s.31(5) whether the issue relates to the seriousness of damage under para.(a), attributability under para.(b) or identity under paras (c) and (d). Much expert advice consists of opinion, and there is no reason to confine the facts of which s.31(7) speaks to those physical phenomena that only the expert can see or identify and relate to the plaintiff. Section 31(5)(b), for example, raises the causal issue whether “the damage was attributable … to the act or omission which is alleged to constitute negligence”. In many cases, the issue of attributability is one on which expert opinion is required. Again, it is not to be supposed that the legislature intended this causal issue to be determined by reference only to the knowledge or judgment of a hypothetical reasonable person unassisted by expert opinion. Furthermore, I see no reason to confine opinions to past or current matters or events. In the context of the issues raised by s.31(5), there is no good reason for excluding “predictions” from the concept of “facts”. Suppose a plaintiff learns or could have learned from an expert: (1) that the cracking of a building was caused by defective foundations; (2) that the cracking is continuing; and (3) that the foundations are so defective that the building is likely to collapse. It would be astonishing if the legislature intended to exclude item (3) from the “facts” to be considered in determining whether the facts about the damage were sufficiently serious to justify proceedings.\n190.\nSpeaking generally, in cases concerning physical injury or property, the only issue under s.31(5)(a) is whether what is accepted as damage and was known to the plaintiff was sufficiently serious to justify instituting proceedings. As s.31(6) emphasizes, questions of whether any acts or omissions involve negligence is irrelevant to the s.31(5) issues, and s.31(5)(a) operates on the hypothesis that the defendant does not dispute that he is liable for the damage caused. Cases concerning economic loss, however, do raise difficult questions as to whether the plaintiff knew that he or she had suffered damage. Some cases of physical injury or property damage also raise questions as to whether the plaintiff knew that he or she had suffered damage. These cases raise the question whether bare physical facts alone constitute the existence of damage of which the plaintiff knew or whether the existence of damage requires an evaluation of those physical facts, an evaluation which will require either expert advice or the existence of an additional fact. The problem is illustrated by\nDobbie v. Medway Health Authority\n[1994] 1 WLR 1234\n.\n191.\nIn\nDobbie,\nthe plaintiff had had an operation to remove a lump in her breast. Thinking that the lump was cancerous, the surgeon removed the whole breast without having the lump pathologically tested. In fact, the lump was benign, which the plaintiff learned shortly after the operation. Fifteen years passed before the plaintiff discovered that the surgeon should have had the lump tested before removing her breast. Dismissing her appeal against a lower court finding that the claim was statute barred, Sir Thomas Bingham MR said (at 1243):\n“She knew of this injury within hours, days or months of the operation and she at all times reasonably considered it to be significant. She knew from the beginning that this personal injury was capable of being attributed to, or more bluntly was the clear and direct result of, an act or omission of the health authority. What she did not appreciate until later was that the health authority’s act or omission was (arguably) negligent or blameworthy. But her want of that knowledge did not stop time beginning to run.”\n192.\nBeldam LJ said (at 1245):\n“The injury in respect of which the plaintiff claims damages is the loss of her left breast and the severe psychological symptoms which followed. The act or omission of the defendant on which she relies is the act of the surgeon in removing the breast and the omission to carry out a test before doing so which would have indicated that the removal of her breast was unnecessary.\nThus the plaintiff had actual knowledge as required by section 14 within a few days of the operation being performed.”\n193.\nThe difficulty about this reasoning is that the damage that the plaintiff suffered was not the loss of her left breast, as Beldam LJ found. If the breast had been cancerous, its removal would have caused her no damage. No one could sensibly say that a person suffers damage when a cancerous growth is removed. The plaintiff’s damage was the loss of a healthy breast. Until she learned that her breast should not have been removed, she did not know “that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence”. The Court of Appeal subsequently recognised this in\nHallam-Eames v. Merrett Syndicates\n[2001] Lloyd’s Reports PN 178 where Hoffmann LJ, giving the judgment of the Court, said (at 181):\n“If one asks on common sense principles what Mrs Dobbie was complaining about, the answer is that the surgeon had removed a healthy breast. It would in our view be a seriously incomplete statement of her case to say that it was simply that the surgeon had removed her breast. This is not a matter of elaborating the detail by requiring knowledge of precisely how he had come to do the act complained of, such as this court rejected in\nBroadley\n. It was part of the essence of her complaint. Nor is it requiring knowledge of fault or negligence. The court’s emphatic rejection of such a requirement is entirely consistent with characterising the act complained of (and of which knowledge was therefore required) as the removal of a healthy breast. But the judge [ie in the present case], as it seems to us, has read\nDobbie\nto mean that knowledge that the surgeon had removed her breast would have been enough.\nIf one asks what is the principle of common sense on which one would identify Mrs Dobbie’s complaint as the removal of a healthy breast rather than simply the removal of a breast, it is that the additional fact is necessary to make the act something of which he would\nprima facie\nseemed entitled to complain. She was suspected of having a cancerous lump and if this had been the case, the removal of the breast would not have been a matter for complaint.”\n194.\nThe analysis of\nDobbie\nby Hoffmann LJ was directed at the United Kingdom equivalents of s.31(5)(b) “that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence”. The difficulty I have with the reasoning of the Court of Appeal in explaining\nDobbie\nis that it re-writes the terms of s.31(5)(b). It substitutes the plaintiff’s complaint in a broad sense for the words “act or omission which is alleged to constitute negligence”. By referring to the “removal of a healthy breast”, the Court substituted a compound conception of s.31(5)(a) and s.31(5)(b). I would have thought it was the failure to test the lump in her breast that was relevantly the “act or omission” and that losing a healthy breast was “the damage”. Nevertheless, Lord Justice Hoffmann’s analysis indicates that\nDobbie\nwas wrongly decided on para.(a) of the UK equivalents of s.31.\n195.\nIn\nHaward v. Fawcetts\n[2006] 1 WLR 682\nat 686-687, Lord Nicholls said the Court of Appeal in\nDobbie\nhad erred when it criticised the trial judge in that case for saying that the claimant had to have “broad knowledge of sufficient facts to describe compendiously (i) that her breast had been unnecessarily removed, (ii) that something had gone wrong”. Lord Nicholls said (at 687) that the essence of the claimant’s case in\nDobbie\nwas that “she had suffered injury by the removal of a healthy breast, that is, her breast had been removed unnecessarily and something had gone wrong. These were the acts and omissions she alleged constituted negligence. Under the statute, time did not begin to run until she knew of these acts or omissions. Until she was aware of these matters she could not know her injury was attributable to them”. Lord Nicholls said that he agreed with the observations concerning\nDobbie\nthat the Court of Appeal made in\nHallam-Eames v. Merrett Syndicates\n[2001] Lloyd’s Reports PN 178 at 181.\n196.\nThese remarks of Lord Nicholls were also directed to the United Kingdom equivalent of s.31(5)(b) but they apply equally to the issue under s.31(5)(a). It may be that his Lordship did not think his analysis of\nDobbie\napplied to the United Kingdom equivalent of s.31(5)(a), but this seems unlikely. In\nHaward v. Fawcetts\n[2006] 1 WLR 682\nat 701, Lord Walker also agreed with the analysis by Hoffmann LJ of\nDobbie\n.\n197.\nIn\nDobbie,\nSir Thomas Bingham MR had said that questions of evaluation do not enter into the question of a plaintiff’s knowledge in the United Kingdom equivalent of s.31(5)(a). After referring to\nBroadley v. Guy Clapham & Co.\n[1994] 4 All ER 439\nand\nNash v. Eli Lilly & Co.\n[1993] 1 WLR 782\n, Sir Thomas Bingham MR said\n[1994] 1 WLR 1234\nat 1241H:\n“These decisions are, I think, consistent with and supportive of the construction of the statutory language set out above, subject to one possible qualification. The requirement that the injury of which a plaintiff has knowledge should be ‘significant’ is in my view\ndirected solely to the quantum of the injury\nand not to the plaintiff’s evaluation of its cause, nature or usualness. Time does not run against the plaintiff, even if he is aware of the injury, if he would reasonably have considered it insufficiently serious to justify proceedings against an acquiescent and credit-worthy defendant, if (in other words) he would reasonably have accepted it as a fact of life or not worth bothering about…” (my emphasis)\n198.\nIn\nDobbie,\nSir Thomas Bingham MR was construing s.14 which required knowledge “that the injury in question was significant”. The term “significant” does not appear in s.14A or s.31 but Lord Mance in\nHaward v. Fawcetts\n[2006] 1 WLR 682\nat 717 and Chadwick LJ in\n3M United Kingdom Plc v. Linklaters & Paines (A Firm)\n[2006] PNLR 543 at 553-554 took the view that Sir Thomas Bingham’s remarks were equally applicable to the United Kingdom equivalent of s.31(5)(a). In\nHaward\n, Lord Mance said (at 717):\n“106 …Subsection (6) of section 14A distinguishes two aspects of the knowledge required. The first aspect relates to the seriousness of the damage, the second to ‘the other facts relevant to the current action’ including in particular that such damage was attributable in whole or part to the act or omission alleged to constitute negligence and the identity of the defendant. The seriousness of the damage is relevant because there may be cases where, although it is known that loss has been suffered due to the negligence of another person, the loss may appear for a time so minor that no one would contemplate instituting proceedings. That is I think more likely in the area of personal injuries and fatal accidents, covered by section 14 on which section 14A (7) - (10) were modelled, than in the area covered by section 14A itself. In both areas, the statutory language assumes that it is known that there has been some injury (under section 14) or damage (under section 14A). But this too can give rise to difficulty. If a doctor advises that it is necessary to operate, or to remove a breast, in order to remove a malignant tumour, one would not usually speak of the patient sustaining an injury until one knew that the diagnosis was misconceived and there was no such tumour. Similarly, if a financial adviser advises in favour of an investment, one would not describe the making of the investment itself as ‘damage’ until one discovered that it had been a bad or unsound investment from the outset.\n107. In such cases, there is an interplay between knowledge of what would ordinarily be regarded as injury or damage and knowledge regarding the factual circumstances in which the operation or investment occurred. Yet, the first aspect of the knowledge required relates to damage of sufficient seriousness ‘to justify [the claimant] instituting proceedings’ … whereas the knowledge required regarding the attributability of such damage to some act or omission of the defendants is, as will appear, not necessarily such knowledge as to justify proceedings. To maintain a coherent scheme, the better view therefore appears to be to treat the first aspect of knowledge as relating solely to matters of quantum and all questions regarding the evaluation or classification of damage as such as falling within the second aspect of the knowledge required. This is also the view taken in the authority: see\nDobbie v. Medway Health Authority\n[1994] 1 WLR 1234\n, 1241 - 1242, per Sir Thomas Bingham MR.”\n199.\nThese passages were cited by Chadwick LJ in\n3M United Kingdom Plc v. Linklaters & Paines (A Firm)\n[2006] PNLR 543 at 553-554.\n200.\nNo doubt s.31(5)(a) and its United Kingdom equivalents are directed solely to the issue of quantum (how serious is it?) but it does not follow that, in determining that issue, evaluation of the nature of the damage is irrelevant. One must first identify the damage before one can assess the quantum issue, and evaluation of facts may be necessary in determining whether damage has been suffered.\n201.\nThe difficulty of determining the issue of a plaintiff’s knowledge of damage in a solicitor’s negligence case is illustrated by\nBowie v. Southorns\n[2003] PNLR 135. It also shows that the United Kingdom courts meet this difficulty by looking at the issue of “facts about the damage” in very broad terms. In 1988, the claimant and her husband had executed a charge in favour of a bank over their matrimonial home to secure the husband’s business debts. Although a partner in the defendant firm of solicitors had signed an attestation clause confirming that he had explained the charge to the claimant, she alleged in an action brought in 2001 against that firm for negligence that he had not done so. She further alleged that she did not believe that the solicitor was acting for her in 1988 and, although she had consulted solicitors and counsel in 1992 when she had unsuccessfully defended possession proceedings brought by the bank, she was not told that she might have an action against the defendant firm. Nelson J held that the action against the defendant firm was statute barred. He found (at 148) that the plaintiff knew that she had signed the legal charge over her home which secured repayment of some of the husband’s debts, that, when the bank commenced proceedings for possession, she knew there was a risk she might lose the home, that she thought that the solicitor acted for her husband’s business, that he had not explained the nature of the charge to her before she signed it, that she knew that the attestation clause was false and that she would not have signed the charge if he had explained what the document meant for her. His Lordship said (at 152):\n“What is required is that the claimant must have in\nbroad terms\nknowledge of the facts on which her complaint is based. She does not in my judgment have to know how a claim in damages might be presented by the lawyers. If she knows that she has suffered damage or loss\nor potential damage or loss\nthat is sufficient … Here [the plaintiff] knew that there was a risk that she might lose her home, that that risk would become a reality if the bank succeeded in its action, and that that loss arose from her signing a legal charge which, if [the solicitor] had explained it to her properly, she would not have signed. I am satisfied on the evidence that she had this knowledge by November 1992. She did not need expert advice in order to have that knowledge which was in my judgment sufficient to lead her to the view, after the bank had commenced possession proceedings, that she had suffered damage such as to consider it sufficiently serious to justify the institution of proceedings. I am further satisfied that on the facts as I have found them, she knew that the damage was attributable in part to [the solicitor’s] failure to explain the charge to her, as but for that failure she would not have entered into the transaction.” (my emphasis)\n202.\nJust as in\nDobbie\n,“an additional fact” was necessary to convert the facts that the plaintiff knew into “damage”, so, in\nBowie v. Southorns\n, it is difficult to see how the bare facts that Mrs Bowie knew constituted knowledge of “facts about the damage” unless there was added an element of legal knowledge, an element that did not exist until 2000. As Janet O’Sullivan points out in her comment on that case (\nLimitation, latent damage and solicitor’s negligence\n20 PN 218 at 238):\n“Unfortunately, justifying the result by reference to attribution in ‘broad terms’ does not explain how the solicitor’s omission to explain the charge to the claimant makes her damage attributable to the omission - unless you add that the solicitor was under a duty to her, he stands in the same position as ‘everyone else in the world’ who gave no advice about the charge!”\n203.\nHowever, not all cases concerning a solicitor’s negligence raise difficult questions concerning the plaintiff’s knowledge of damage in the context of s.31(5)(a). In\n3M United Kingdom Plc v. Linklaters & Paines (A Firm)\n[2006] PNLR 543, three related companies who were members of the 3M corporate group, held leases expiring in 2012. Each lease contained a break clause, personal to the tenant, which allowed the tenant at a price to determine the lease on one year’s notice ending on 4 December 1997. As part of restructuring the group in 1989, the defendant solicitors drafted assignments of the leases without noticing that the break clause in each lease was personal to the tenant. The loss of the right to terminate came to the knowledge of the group’s in-house lawyer during negotiations on 30 August 1995 for an extension of the break date to 31 March 2001. The landlord took the point that the option to terminate could no longer be exercised as a result of the assignments, and 3M lost the opportunity to move its operations penalty free to new premises it had obtained. The 3M companies did not commence their action against the solicitors until 1999 but it was agreed that it should be treated as started on 1 September 1998.\n204.\nThe Court of Appeal held that the action was statute barred. The Court rejected the argument that 3M did not know that it had suffered damage before 1 September 1995 because it did not know until after that date that the landlord could and would rely on the fact that the option had been lost which was knowledge acquired after 1 September 1995. Chadwick LJ said that the damage to the plaintiff was the loss of the options when the leases were assigned in 1989. He said (at 557) that it was impossible to contend that, because the landlord had agreed in principle to defer the options before 30 August 1995 when it thought that they were exercisable in 1997 it could be taken as an indication that it would be willing to affirm the agreement in principle once it knew the options were not exercisable. His Lordship said (at 557):\n“The true position on August 30, 1995, as the judge appreciated, was that the claimant companies…well knew what they had lost by the assignments in 1989. And they knew that that loss was serious, unless the problem could be solved. The hope that [the landlord] would not receive informed advice as to the strength of its position has not been advanced: there could be no basis for a suggestion that the landlord would not be properly advised by its solicitors. The hope that there could be a solution to the problem by negotiation was founded on sand: there was no basis for negotiation.”\n205.\nThe foregoing discussion shows that there are difficulties in applying s.31(5)(a) in some cases, particularly when the case concerns a solicitor’s negligence and more so when it concerns a negligent omission. There is also, as I have indicated, judicial support for the view that s.31(5)(a) is concerned\nsolely\nwith quantum and does not concern itself with “questions regarding evaluation or classification of damage”, a view which I think is erroneous.\n206.\nThe questions under s.31(5)(a) aided by s.31(7) then are:\n(1)\nwhen did the plaintiff know enough to make it reasonable for him to begin to investigate whether or not there are other facts that are relevant to the issues under that paragraph;\n(2)\nwhat facts about the damage did the plaintiff actually know with or without that investigation;\n(3)\nwhat facts about the damage should the plaintiff have known by reason of the hypothetical investigation; and\n(4)\nwould the plaintiff’s actual or constructive knowledge of facts about the damage have led a reasonable person to consider that they were sufficiently serious to justify instituting proceedings against the defendant on the assumption that the defendant did not dispute liability and would meet a resulting judgment?\nSection 31(5)(a) and the present case\n207.\nWhatever difficulties may be present in some cases in determining whether the plaintiff had knowledge of the “facts about the damage” for the purpose of s.31(5)(a), no difficulties arise in this case. Paragraph 19 of the Statement of Claim alleged that as a result of TTC’s negligent handling of Kensland’s affairs, it “has suffered damages”. Paragraph 21 gave “the particulars as to damages suffered by Kensland as the result of TTC’s negligent handling and advice concerning the sale and purchase of the property”: (1) HK$8 million, payable “as damages pursuant to the judgment of the Court of Final Appeal”; (2) HK$2,767,407.33, “paid by Kensland as legal fees”; and (3) HK$17,980,000, “being the diminution in value of the property following the non-completion of the sale”.\n208.\nKensland almost certainly did not know the quantum of this damage until the litigation against Whale View had concluded. But it knew each of the three heads of damage that are the basis of its claim for damages no later than the end of November 1997. It knew on 3 September 1997 that it was being sued for specific performance of the contract and for damages as the result of acting on the advice of TTC that it could terminate the contract for the sale of the premises. By November 1997, it had been required to pay HK$78,300 to defend the action brought by Whale View. On 14 November 1997, it sought counsel’s advice on the possibility of admitting Whale View’s claim because “the property is now worth much less than HK$55 million”. Thus, by the end of November 1997, it knew each of the three heads of damage that now form the basis of its action for damages against TTC, and these three heads of damage are “the facts about the damage” that are relevant for the purpose of s.31(5)(a).\n209.\nKensland’s knowledge of these heads of damage then raises the question whether they would lead a reasonable person to consider them sufficiently serious to justify his instituting proceedings for damages against TTC. Section 31(5)(a) does not make time run when a plaintiff knows “the damage”; it makes it run when the plaintiff knows “\nthe facts about\nthe damage” which would lead a reasonable person to conclude that proceeding are justified. On this aspect of the present case, it is not even necessary to adopt the approach of Nelson J in\nBowie v. Southorns\n[2003] PNLR 135 and look at the facts about the damage in “\nbroad terms\n” orlook at the “\npotential damage or loss\n”. No later than the end of November 1997, Kensland had knowledge of the specific facts concerning the damage which is the subject of its damages claim.\n210.\nGiven the hypothesis upon which s.31(5)(a) proceeds – that the defendant does not dispute its liability and is able to satisfy a judgment against it – there can be no doubt that a reasonable person would have considered the facts about the damage in this case sufficiently serious to justify instituting proceedings by the end of November 1997. As I have indicated, this paragraph is concerned with quantum. What it requires is the judgment of a reasonable person as to whether the facts about the damage are sufficiently serious and therefore the likely amount of damages recoverable sufficiently large to justify bringing an action against a defendant who will not be disputing that he is liable for the damage and can satisfy the judgment obtained. Thus, the s.31(5)(a) issue in the present case must be decided on the basis that TTC did not dispute its liability to Kensland for damages for the three heads of damage which is the basis of its damages claim. Each of those heads of damage was substantial and exposed Kensland to a liability to pay large sums of money to Whale View. To my mind, there can be no doubt that in these circumstances a reasonable person would regard the facts about the damage sufficiently serious to justify proceedings against a hapless defendant who cannot dispute its liability and can satisfy the judgment against it.\n211.\nAccordingly, in my opinion by the end of November 1997, Kensland had the relevant knowledge for the purpose of s. 31(5)(a).\nSection 31(5)(b)\n212.\nSection 31(5)(b) raises the issue whether, by reason of actual or constructive knowledge or both, the plaintiff knew “that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence”. It is necessary that the plaintiff know the act or omission that allegedly constitutes negligence, but the plaintiff does not need to know “that, as a matter of law, such act or omission involve negligence”:\nHaward v. Fawcetts\n[2006] 1 WLR 682\nat 719 per Lord Mance. As I earlier indicated, this paragraph concerns “the damage” as opposed to para.(a)’s concern with the “facts about the damage”.\n213.\nIf one simply examined the terms of s.31 and its United Kingdom equivalents, the meaning of s.31(5)(b) would seem clear enough. By reason of the provisions of s.31(6), all that s.31(5)(b) requires is for the Court to identify the damage and the act or omission alleged to constitute negligence and ask whether the plaintiff had knowledge that the damage was attributable to that act or omission without its negligent quality. Unfortunately, as I see it, the clear meaning of the paragraph has become encrusted with judicial\ndicta\nthat have substituted judicial exposition for the meaning of the paragraph. One of the best known expositions of the paragraph is found in the judgment of Hoffmann LJ in\nHallam-Eames v. Merrett Syndicates\n[2001] Lloyd’s Reports PN 178 when he explained the operation of the United Kingdom equivalent of s.31(5)(b). He said (at 181):\n“In other words, the act or omission of which the plaintiff must have knowledge must be that which is causally relevant for the purposes of an allegation of negligence… It is this idea of causal relevance which various judges of this court have tried to express by saying the plaintiff must know the ‘essence of the act or omission to which the injury is attributable’ (Purchas LJ in\nNash v. Eli Lilly & Co\n[1993] 1 WLR 782\n, 799) or ‘the essential thrust of the case’ (Sir Thomas Bingham MR in\nDobbie\n[1994] 1 WLR 1238\n) or that ‘one should look at the way the plaintiff puts his case, distil what he is complaining about and ask whether he had in broad terms knowledge of the facts on which that complaint is based’ (Hoffmann LJin\nBroadley\n[1993] 4 Med L R 328, 332).”\n214.\nLord Scott cited this passage with evident approval in\nHaward v. Fawcetts\n[2006] 1 WLR 682\nat 695, as did Lord Walker at 700-701. In the same case, Lord Nicholls cited with approval the above passage in the judgment of Hoffmann LJin\nBroadley v. Guy Clapham & Co.\n[1993] 4 Med L R 328, 332.\n215.\nThe various tests to which Hoffmann LJ refers represent, with great respect to those that have formulated them, a departure from the statutory text. What s.31(5)(b) and its United Kingdom equivalents require is knowledge “that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence”. They do not require knowledge of the “essence of the act or omission”, “the essential thrust of the case” or “in broad terms knowledge of the facts on which that complaint is based”. They require identification of the “act or omission” that the plaintiff says is negligent. And the inference to be drawn from s.31(6) is that the “act or omission” must be stripped of its negligent quality. If the plaintiff says that he was negligently advised, the act or omission is the advising. The issue under para.(b) then becomes when, as in\nHaward v. Fawcetts\n[2006] 1 WLR 682\n, whether the plaintiff knew that the loss of money invested (the damage) was attributable to that advising. If the plaintiff says that she lost a healthy breast by reason of the surgeon’s negligent failure to test the lump to see whether it was cancerous before removing it, as in\nDobbie v. Medway Health Authority\n[1994] 1 WLR 1234\n, the issue becomes when the plaintiff knew that the loss of her breast was attributable to not testing the lump to see whether it was cancerous before it was removed.\n216.\nThree cases illustrate the operation of para.(b) in the United Kingdom. The first is\nBroadley v. Guy Clapham & Co.\n[1994] 4 All ER 439\nwhere the plaintiff sued her solicitor for negligence in failing to commence an action for negligence against Mr Lowy, a surgeon, who had operated on her to remove a foreign body from her knee. As a result of the operation – which took place in August 1980 – the plaintiff “had left foot drop”. In June 1983, she consulted the defendant who arranged for her to see another orthopaedic surgeon who told her that the operation on her knee might have been negligent, but the solicitor did not receive a report from that surgeon and he did not issue a writ against Mr Lowy. It was not until 17 August 1990 that the plaintiff issued her writ against the defendant for negligence. The solicitor defended the action by asserting that, if he was negligent, it caused the plaintiff no damage because her claim against Mr Lowy was barred by theLimitation Act when the alleged negligence occurred. Hence, as Balcombe LJ said (at 442) “the plaintiff’s cause of action against the defendant is barred if her knowledge of her cause of action against Mr Lowy and the hospital existed before 19 August 1981”. Strictly speaking, knowledge of a cause of action was not the issue. At first instance, Turner J found (at 442 – 444) that, by reason of the plaintiff’s actual and constructive knowledge, she knew before the relevant date in August 1981 all the matters to which the United Kingdom equivalent of s.31 refer. The Court of Appeal affirmed his decision.\n217.\nHoffmann LJ said (at 449):\n“In this case the plaintiff knew, or could have known with the help of the medical advice reasonably obtainable, that her injury had been caused by damage to the nerve resulting from something which Mr Lowy had done or not done in the course of the operation. In my judgment this was all the knowledge or imputed knowledge which she needed to have.”\n218.\nWith respect, this decision and this reasoning seem plainly correct.\nBroadley\nand the facts in\nForbes\nto which I earlier referred illustrate how the operation of s.31(7) with its constructive knowledge provisions works smoothly in most physical injury cases.\n219.\nThe second case is the leading case of\nHaward v. Fawcetts\n[2006] 1 WLR 682\nwhere, on 9 December 1994, relying on the advice of Mr Austreng, a partner in a firm of accountants, the claimants acquired a controlling interest in a company. In addition, one of the claimants acquired the freehold of the company’s leased premises for ₤100,000. Mr Austreng also forecast that, by investing about another ₤100,000, the company would be brought to reasonable profitability during 1995. However, although the claimants invested further substantial sums in the company in 1995, 1996, 1997 and 1998, it failed to become profitable. In 1998 the first claimant asked a specialist in corporate rescues to investigate the company’s losses. On 6 December 2001 the claimants brought an action against the accountants for professional negligence. The House of Lords unanimously held that, before 6 December 1998, the claimants knew with sufficient confidence that the damage was attributable to the acts or omissions of the accountants. That was because they knew in broad terms the facts on which their complaint was based and of the accountants’ acts or omissions and knew that there was a real possibility that those acts or omissions had been the cause of the damage they had suffered.\n220.\nI must confess that there are parts of the reasoning in\nHaward\nwhich I find puzzling and which supports the comment of counsel for TTC – who relied on the decision - that their Lordships have put a “gloss” on the statute. I think that some of the difficulties that I have with these parts of the reasoning arise from some of their Lordships equating “knowledge” with knowing enough to require further investigation. I have already set out the reasons why that cannot be so, and I need not to repeat them. The remaining difficulties that I have with parts of the reasoning is the re-writing of the equivalent of s.35(1)(b), a point to which I earlier referred.\n221.\nLord Nicholls said (at 688) that the conduct alleged to constitute negligence “was the giving of flawed advice”. He went on to say:\n“20 …This feature is the very essence of [the first claimant’s] claim. Stated in simple and broad terms, his claim is that Mr Austreng did not do his job properly. Time did not start to run against [the first claimant] until he knew enough for it to be reasonable to embark on preliminary investigations into this possibility.\n21. There may be cases where the defective nature of the advice is transparent on its face. It is not suggested that was so here. So, for time to run, something more was needed to put [the first claimant] on inquiry. For time to start running there needs to have been something which would reasonably cause [the first claimant] to start asking questions about the advice he was given.”\n222.\nLord Nicholls said that the claimants had the burden of proving that they were not put on inquiry until after 6 December 1998 but had not attempted to discharge this burden. Accordingly, their claim for an extension of the limitation period failed.\n223.\nWith great respect, I find two features of this reasoning difficult to accept. The first is the reference to being put on inquiry. In\nHaward\n, the accountants did not rely on the claimants’ constructive knowledge, as Lord Nicholls acknowledged\n.\nSo no question of investigation or inquiry arose. It follows that the reference to start asking questions or an inquiry was irrelevant. Because the accountants did not contend that the claimants had constructive knowledge of any facts, the only issue was whether, on the facts actually known to the claimants, they had knowledge of each of the four matters referred to in the United Kingdom equivalent of s.31(5). Of those four matters, the only live issue concerned whether before 6 December 1998 they knew “that the damage was attributable in whole or in part to the act or omission” that constituted the alleged negligence. If they had that knowledge, their claim was barred. Lord Nicholls did not address the issue posed by the United Kingdom equivalent of s.31(5)(b) in these terms. Instead of asking whether the claimants knew that Mr Austreng had advised investment in the company (which was the relevant act or omission when stripped of its negligent quality), his Lordship asked whether [the first claimant] “knew enough for it to be reasonable to embark on preliminary investigations into this possibility”. That was a question that would be relevant if constructive knowledge was an issue in\nHaward\n, but it was not an issue in that case. The second feature is the characterization of the act or omission as flawed advice. In substance, that seems to reintroduce by another name the element of negligence which the United Kingdom equivalent of s.31(6) renders irrelevant.\n224.\nWith great respect, and independently of this last point, what his Lordship did in\nHaward\nwas to apply the process for ascertaining facts that are imputed to the plaintiff’s store of knowledge to a case where facts constructively known were not an issue.\n225.\nLord Scott said (at 696) that the damage that the claimants had suffered “was the making of a bad investment”. He went on to say (at 696) that the essence of the claimant’s complaint against the accountants was that they did not give them the advice that the true state of the company’s affairs warranted and that, if given, would have warned them against the disastrous investment of their money. Lord Scott said (at 697) that the first claimant knew what advice had been given and what advice had not been given by the accountants. He “knew by 6 December 1998 that the true financial state of the company had required, if the company were to keep trading, the very substantial additional investment that had to be made, and was made, to cover the losses incurred in the years 1995, 1996 and 1997”. Lord Scott said that the trial judge had summed up the situation accurately and in accordance with the requirements of the United Kingdom equivalent of s.31 when he said:\n“it is the basis of [the claimants] claim that [the accountants] advised ongoing investment and it is hard to see how [the first claimant] could have failed to appreciate that he was spending money either on their advice or without their advice. So far as [the first claimant] was concerned, there was nothing of a factual nature that was latent; all was patent. The only thing that he did not know was that [the accountants] had been, as he now alleges, negligent or that he had a claim against them but such matters are irrelevant.”\nWith respect, I think that Lord Scott’s and the trial judge’s approach was the correct one. The damage was the loss of the moneys invested, and the “act or omission” was the advice that was given or not given.\n226.\nLord Walker also thought that, although the trial judge’s judgment was “not without some defects and difficulties”, he “was basically right in his overall conclusion”.\n227.\nLord Brown said (at 710):\n“90. What the claimant must know to set time running is the essence of the act or omission to which his damage is attributable, the substance of what ultimately comes to be pleaded as his case in negligence. That essence or substance here could no doubt be characterised in either of two ways: either as the act of recommending investment in the company (or omitting to caution against it - on the particular parts of this case these are two sides of the same coin), or, with greater particularity, the act of recommending investment without first carrying out the investigations necessary to justify such positive advice. Having at first preferred the latter characterisation, I have come to prefer the former. True, under the former the claimant knows nothing beyond the fact that his advisers led him into what turned out to be a bad investment; he does not know, as under the latter characterisation he would, that he has a justifiable complaint against his advisers. But he surely knows enough (constructive knowledge aside) to realise that there is a real possibility of his damage having been caused by some flaw or inadequacy in his advisers’ investment advice, and enough therefore to start an investigation into that possibility, which section 14A then gives him three years to complete.\n91. If the other approach is adopted, time only starts to run once the claimant recognizes that a fuller examination of the company’s prospects should have been carried out than was in fact carried out, knowledge which [the first claimant] only learned here at some unascertained date after the investigation into [the accountants] conduct had itself begun in an May 1999 (when another accountant first suggested to [the first claimant] that a negligence claim might lie against [the accountants]). But what if that suggestion and the investigation which it prompted had themselves been made at a later date still, perhaps very substantially later? On this approach the limitation period would appear capable of almost limitless extension and for no sufficient reason…”\n228.\nWith great respect, for the reasons that I gave in discussing Lord Nicholl’s speech, I find part of the reasoning in these paragraphs puzzling. Because the claimants did not have constructive knowledge of any facts, the only issue was whether, on the facts known to them, they knew before 6 December 1998 “that the damage was attributable in whole or in part to the act or omission” that constituted the alleged negligence. Lord Brown held that, for the purpose of the United Kingdom equivalent of s.31(5)(b), the claimant had that knowledge although he knew “nothing beyond the fact that his advisers led him into what turned out to be a bad investment”. Earlier, Lord Brown had said (at 709) that “[g]iven, however, that [the accountants] case is based solely on [the first claimant’s] actual knowledge, to my mind it must fail if anything more is required than that [the first claimant] knew that his loss might well have resulted from an investment made on [the accountants’] advice”. With respect, this analysis of the relevant act or omission was correct.\n229.\nHowever, his Lordship then went on to comment that “he surely knows enough (constructive knowledge aside) to realise that there is a real possibility of his damage having been caused by some flaw or inadequacy in his advisers’ investment advice, and enough therefore to start an investigation into that possibility, which s.14A then gives him three years to complete”. In\nHaward\n, the accountants did not rely on the claimants’ constructive knowledge\n.\nSo no question of investigation arose, and the reference to the starting of an investigation seems irrelevant unless Lord Brown is speaking hypothetically of a case whose facts are similar to those in\nHaward\n. Having correctly identified the relevant act or omission, I find it difficult to see why his Lordship thought that the case turned on the issue of investigation. The claimants either had knowledge of that act or omission or they did not have it. Lord Brown’s reasons show that they had that knowledge. That, in my opinion, was enough to defeat their claim.\n230.\nLord Mance, like Lord Nicholls, saw the issue as being when the first claimant knew enough to make it reasonable for him to investigate whether the claimants had a case against the accountants. Lord Mance said (at 725):\n“The question is when [the first claimant] actually knew both enough of the acts or omissions now alleged to constitute negligence and that the loss suffered was capable of being attributable thereto to make it reasonable for him to begin to investigate whether or not the claimants had a claim against [the accountants]. That would be the case, taking the reasoning in\nHallam-Eames’\ns case, once he realised that he had prima facie cause to complain of unsoundness from the outset of the investments; this would in turn suggest unsoundness in the advice given or not given by [the accountants]. In relation to the issue raised by this question, the onus was on the claimants. It was for the claimants to displace the basic limitation period by showing, if they could, that [the first claimant] did not have the requisite knowledge prior to 6 December 1998.”\n231.\nLord Mance went on to hold (at 728) that the claimants had not discharged the onus that lay on them. Lord Mance’s approach was similar to that of Lord Nicholls and, with respect, open to the same criticism. Perhaps the source of his Lordship’s error was reliance on\nHallam-Eames\nwhich turned on the potential availability of constructive knowledge.\n232.\nThus, the reasoning of three of their Lordships is predicated on the assumption of a need to find that it was reasonable for the claimants to have begun an investigation. As I have indicated, this was not an issue in a case where constructive knowledge of facts was not a relevant issue. It also led to the curious conclusion that time ran against the claimants not from when the claimants had knowledge of the four matters specified in s.14A but when they should have commenced to investigate those matters.\n233.\nFortunately, as will appear, the present appeal can be disposed of without the necessity of invoking the reasoning of the House of Lords in\nHaward.\nWhether this Court should apply that reasoning should be left for another day. Indeed, it is unlikely that future courts will need to apply its\nratio decidendi\nand principal reasoning, helpful as much of its\ndicta\nis. That is because much of what their Lordships said would be applicable in cases where constructive knowledge was in issue, which it was not in\nHaward\n.\n234.\nThe third case is\nHallam-Eames v. Merrett Syndicates\n[2001] Lloyd’s Reports PN 178 which shows the difficulty of striking out a statement of claim on the basis of the plaintiff’s knowledge when the facts known or imputed to the plaintiff are not clearly admitted or established. The claimants in that case were Lloyd’s Names who suffered losses when syndicates of which they were members became liable to meet a number of large claims. The defendants contended that all the plaintiffs could reasonably have been expected to acquire the knowledge required for bringing an action in respect of the relevant damage from documents that had been sent to them or their agents more than three years before the issue of the first group. The issue for decision was whether they knew that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence. At first instance, Gatehouse J found that the documents supplied would have told the Names that they had suffered losses sufficiently serious to justify instituting proceedings and struck out the Names actions. However, the Court of Appeal held that the Gatehouse J had “unduly restricted the facts which s.14A(8)(a) [the equivalent of s.31(5)(b)] requires to be known and the material before him did not enable him or this court to decide … as a preliminary issue that the plaintiff’s claims was statute barred”.\nSection 31(5)(b) in the present case\n235.\nThe issue in this case under s.31(5)(b) is whether Kensland knew that the damage it suffered “was attributable in whole or in part to the act or omission which is alleged to constitute negligence”. As I have indicated it knew the heads of damage that are the basis of its action against TTC. Paragraph 20 pleaded six particulars of negligence. The first alleged that “TTC, for no good reason, failed to provide the instructions to [Whale View] within a reasonable time”. The second and third particulars alleged that TTC wrongly advised Kensland that Whale View’s late tender constituted a repudiation of the agreement and that instructions were given within sufficient time for the preparation of the cheques and cashier’s orders. The fourth particular alleged that TTC failed properly to review and consider the agreement, failed properly to advise on the basis thereof and in particular failed to advise that in law Kensland would not be entitled to take advantage of its own breach of the implied term. The fifth particular alleged that TTC failed to advise that, if Kensland’s delay in completion was due to its default, it would not be entitled to treat the agreement as repudiated. The sixth particular alleged that TTC failed generally to inform Kensland of the impact of the late instructions in the circumstances and failed to point out and advise fully of the risks involved in refusing to complete and of the very real risk of having to compensate Whale View.\n236.\nSo the question under this part of the case is whether Kensland knew before 13 January 2001 that its liability to pay damages to Whale View was attributable in whole or in part to each of these six particulars of negligence. Kensland bears the onus of establishing that it did not know before that date that its damage was attributable to one or more of these acts or omissions of TTC. In determining that question, it is necessary in accordance with s.31(6) to disregard so much of these particulars as “involve negligence”. Hence, the use of terms such as “no good reason”, “wrongly” and “properly” must be disregarded.\n237.\nIn my opinion, by the end of November 1997, Kensland knew that its damage was attributable to the particularised acts and omissions that are alleged to constitute negligence on the part of TTC. Once the descriptions of negligence are stripped from the particulars, Kensland’s claim is that TTC gave it or failed to give it advice concerning the termination of the contract of sale or its construction and failed to advise it of the risks involved in terminating the contract and that this led to the damage that it has suffered. However, Kensland knew what advice TTC had or had not given it. By the end of November, it even knew from the Statement of Claim served by Whale View and correspondence between the parties the respects in which this advice or lack of it was the basis of Whale View’s claim for damages. By the end of November, Kensland knew that its liability to pay damages and costs and the drop in the valuation of its property was the result of the advice and lack of advice that TTC had given it. What it did not know was whether that advice or lack of it was negligent, but, for the purposes of s.31(5)(b) that is irrelevant. Consequently, Kensland knew by the end of November 1997 that the damage that is the subject of its action for damages against TTC “was attributable…to the act or omission” of TTC.\nConclusion\n238.\nIt follows that TTC has established that by the end of November 1997, Kensland had knowledge of each of the four matters referred to in s.31(5) (two of them not being in dispute), that it cannot obtain the ameliorating benefit of s.31 and that its claim against TTC is statute barred.\nOrder\n239.\nThe appeal must be dismissed with costs.\nMr Justice Bokhary PJ:\n240.\nThe Court unanimously dismisses the appeal with costs.\n(Kemal Bokhary)\nPermanent Judge\n(Patrick Chan)\nPermanent Judge\n(R A V Ribeiro)\nPermanent Judge\nMr John Scott, SC and Mr Charles Manzoni (instructed by Messrs Jonathan Rostron Solicitors) for the Appellant\nMr Michael Thomas, SC and Mr Andrew Bullett (instructed by Messrs Richards Butler) for the Respondent\n[1]\nKensland Realty Ltd v Whale View Investment Ltd\n(2001) 4 HKCFAR 381\n.\n[2]\nHH Judge Gill, sitting as a Deputy High Court Judge\n[2000] 2 HKLRD 261\n.\n[3]\n[2001] 2 HKLRD 342\n.\n[4]\nHH Judge Gill sitting as a Deputy High Court Judge, HCA 74/2004 (9 November 2005).\n[5]\nCACV 44/2006 (18 October 2006) Rogers VP and Le Pichon JA.\n[6]\nHendserson v Merrett Syndicates Ltd\n[1995]\n2 AC 145\n.\n[7]\nAppearing with Mr Charles Manzoni.\n[8]\nNykredit v Edward Erdman (No 2)\n[1997] 1 WLR 1627\nat 1630 per Lord Nicholls of Birkenhead.\n[9]\nCartledge v E Jopling & Sons Ltd\n[1963] AC 758\n;\nPirelli General Cable Works Ltd v\n.\nOscar Faber & Partners\n[1983]\n2 AC 1\n.\n[10]\nAppellant’s Case, §35.\n[11]\nCartledge v Jopling\n[1963] AC 758\nat 771-772 per Lord Reid and 773-4 per Lord Evershed;\nHaward v Fawcetts\n[2006] 1 WLR 682\n, §3 per Lord Nicholls.\n[12]\nWardley Australia v State of Western Australia\n(1992) 175 CLR 514\nat 531 per Mason CJ, Dawson, Gaudron and McHugh JJ and 544 per Deane J;\nLaw Society v Sephton\n[2006]\n2 AC 543\nat 549-550 per Lord Hoffmann.\n[13]\nForster v Outred\n[1982] 1 WLR 86\nat 94; approved in\nNykredit v Edward Erdman (No 2)\n[1997] 1 WLR 1627\nat 1630 per Lord Nicholls.\n[14]\nWardley Australia v State of Western Australia\n(1992) 175 CLR 514\nat 536 per Brennan J;\nLaw Society v Sephton\n[2006]\n2 AC 543\nat 549-550 per Lord Hoffmann.\n[15]\nUBAF v European American Banking\n[1984]\n1 QB 713\n;\nD W Moore v Ferrier\n[1988] 1 WLR 267\nat 278 per Neill LJ;\nNykredit v Edward Erdman (No 2)\n[1997] 1 WLR 1627\n.\n[16]\nD W Moore v Ferrier\n[1988] 1 WLR 267\nat 277 per Neill LJ;\nKnapp v Ecclesiastical Insurance Group Plc\n[1998] PNLR 172 at 178 and 184 per Hobhouse LJ.\n[17]\nFirst National Commercial Bank plc v Humberts (a firm)\n[1995] 2 All ER 673\n;\nNykredit v Edward Erdman (No 2)\n[1997] 1 WLR 1627\nat 1630 per Lord Nicholls.\n[18]\nFirst National Commercial Bank plc v Humberts (a firm)\n[1995] 2 All ER 673\nat 676 per Saville LJ.\n[19]\nAs no issue arises concerning Kensland’s right to bring the action, the second requirement for establishing the “date of knowledge” under section 31(1)(b), it needs no discussion in this judgment.\n[20]\nSee, for example,\nCave v Robinson Jarvis & Rolf\n[2003]\n1 AC 384\nat §§6 and 7 per Lord Millett;\nHaward v Fawcetts\n[2006] 1 WLR 682\nat §§2 and 3 per Lord Nicholls.\n[21]\nAs discussed in section C.1 above.\n[22]\nHaward v Fawcetts\n[2006] 1 WLR 682\nat 684, §3.\n[23]\nIt does not apply to contract claims:\nIron Trade Mutual Insurance v Buckenham\n[1990] 1 All ER 808\n;\nSociété Commerciale de Réassurance v ERAS\n[1992] 2 All ER 82\n;\nLaws v Society of Lloyd’s\n[2003] EWCA Civ 1887\n.\n[24]\nSection 31(5)(a).\n[25]\nSection 31(5)(b).\n[26]\nSections 31(5)(c) and 31(5)(d).\n[27]\nLondon Congregational Union v Harriss & Harriss\n[1988] 1 All ER 15\nat 30 per Ralph Gibson LJ;\nNash v Eli Lilly\n[1993] 1 WLR 782\nat 796 per Purchas LJ;\nHaward v Fawcetts\n[2006] 1 WLR 682\nat §23 per Lord Nicholls.\n[28]\n[2006] 1 WLR 682\n.\n[29]\nAt 703, §68.\n[30]\nAt 709, §87.\n[31]\nAt 728, §138.\n[32]\nHaward v Fawcetts\n[2006] 1 WLR 682\nat 688, §24 per Lord Nicholls; at 697, §53 per Lord Scott; at 706, §76 per Lord Walker; at 728, §§137-138 per Lord Mance.\n[33]\nIbid\nat 688, §24.\n[34]\nIbid\nat 728 §138.\n[35]\nIbid\nat 697, §§51-52 per Lord Scott; at 704-705, §§72-73 per Lord Walker; at 710, §§89-90 per Lord Brown.\n[36]\nBroadley v Guy Clapham & Co\n[1994] 4 All ER 439\nat 448 per Hoffmann LJ;\nHallam-Eames v Merrett Syndicates\n[2001] Lloyd’s Rep PN178 at 181 per Hoffmann LJ.\n[37]\n[1963] AC 758\nat 772.\n[38]\nIbid\nat 774. This was echoed by Lord Nicholls in\nHaward v Fawcetts\n[2006] 1 WLR 682\nat 684, §3.\n[39]\n[2008] 2 WLR 311\n.\n[40]\nAt 325, §38. See Lord Carswell to like effect at 332, §68.\n[41]\n[1994] 1 WLR 1234\nat 1241.\n[42]\nIbid\nat 1240.\n[43]\nSuch as affidavits and testimony on the trial of a preliminary issue.\n[44]\n[1993] 1 WLR 782\n.\n[45]\n[1993] 1 WLR 782\nat 808.\n[46]\nIbid\nat 788.\n[47]\nIbid\nat 791.\n[48]\n[1991] 1 WLR 428\nat 443.\n[49]\nIbid\nat 433-434.\n[50]\n[1993] 1 WLR 782\nat 792. As pointed out in\nA v Hoare\n[2008] 2 WLR 311\n, the idea that the intelligence and other personal characteristics of the plaintiff are taken into account (adhered to by Purchas LJ) should be rejected. Accordingly the words “for the particular plaintiff” in this citation should be ignored.\n[51]\nEg,\nBroadley v Guy Clapham & Co\n[1994] 4 All ER 439\nat 449 per Hoffmann LJ;\nFennon v Anthony Hodari\n[2001] Lloyd’s Rep PN 183 at 188 per Otton LJ;\nHaward v Fawcetts\n[2006] 1 WLR 682\nat 685, §9 per Lord Nicholls; 709, §87 per Lord Brown; 718-719 §112 per Lord Mance.\n[52]\nAs in\nForster v Outred\n[1982] 1 WLR 86\n; and\nFennon v Anthony Hodari\n[2001] Lloyd’s Rep PN 183. A plaintiff may, however, be held to have imputed knowledge of the liability where, for instance, she simply omitted to read a letter from the bank listing the debts secured:\nWebster v Cooper Burnett\n[2000] PNLR 240.\n[53]\n[1999] Lloyd’s Rep PN 489.\n[54]\nSee Lord Walker’s analysis at\n[2006] 1 WLR 682\nat 699-700, §§60-61.\n[55]\nHaward v Fawcetts\n[2006] 1 WLR 682\nat 686, §11.\n[56]\nIbid\nat 709, §§87-88 (my italics).\n[57]\n[1994] 4 All ER 439\nat 448.\n[58]\nHaward v Fawcetts\n[2006] 1 WLR 682\nat 696,§49. Lord Walker at 708, §79; Lord Brown at 710, §90; and Lord Mance at 722, §120, are of the same view.\n[59]\nIbid\nat 685, §10.\n[60]\n[1994] 4 All ER 439\nat 449.\n[61]\nBroadley v Guy Clapham & Co\n[1994] 4 All ER 439\nat 448 per Hoffmann LJ.\n[62]\nHaward v Fawcetts\n[2006] 1 WLR 682\nat 719, §113.\n[63]\n[2001] Lloyd’s Rep PN178 at 181.\n[64]\nIbid.\n[65]\n[2006] 1 WLR 682\nat 686-687, §14 per Lord Nicholls; at 695, §45 per Lord Scott; at 700-701 §62 and at 702, §66 per Lord Walker; at 720, §116 per Lord Mance.\n[66]\n[1994] 1 WLR 1234\n.\n[67]\nIbid\nat 1238.\n[68]\nIbid\nat 1243. Beldam LJ agreed at 1245, as did Steyn LJ.\n[69]\n[2001] Lloyd’s Rep PN178 at 181.\n[70]\n[2008] 2 WLR 311\n.\n[71]\nIbid\n,see 326, §§44- 45 per Lord Hoffmann; 333, §70 per Lord Carswell; 335-336, §§84 and 86 per Lord Brown.\n[72]\nAppellant’s Case §57.\n[73]\nAffirmation of Yeung Han Yi Yvonne, 27 July 2005, §5(d).\n[74]\nSection D.6b above.\n[75]\nSections D.6b and D6.c above.\n[76]\nSection C.1.", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2007/FACV000011_2007.doc", + "file_name": "FACV000011_2007.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkcfa/2014_HKCFA_22/case.json b/en_cases_hkcfa/2014_HKCFA_22/case.json new file mode 100644 index 0000000..61847a7 --- /dev/null +++ b/en_cases_hkcfa/2014_HKCFA_22/case.json @@ -0,0 +1,14 @@ +{ + "Date": "", + "Action No.": "", + "Neutral Cit.": "", + "case_title": "MOULIN GLOBAL EYECARE TRADING LTD (IN LIQUIDATION) (FORMERLY KNOWN AS MOULIN OPTICAL MANUFACTORY LTD) V. THE COMMISSIONER OF INLAND REVENUE", + "page_title": "undefined | | HKLII", + "case_history": [], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkcfa/2014/22", + "neutral_cit": "[2014] HKCFA 22", + "court_code": "HKCFA", + "content": "", + "attachments": [] +} \ No newline at end of file diff --git a/en_cases_hkcfa/2016_HKCFA_41/case.json b/en_cases_hkcfa/2016_HKCFA_41/case.json new file mode 100644 index 0000000..211c5c5 --- /dev/null +++ b/en_cases_hkcfa/2016_HKCFA_41/case.json @@ -0,0 +1,26 @@ +{ + "Date": "19 May, 2016", + "Action No.": "FAMC15/2016", + "Neutral Cit.": "[2016] HKCFA 41", + "case_title": "HKSAR V. LUK KIN PETER JOSEPH AND ANOTHER", + "page_title": "HKSAR V. LUK KIN PETER JOSEPH AND ANOTHER | [2016] HKCFA 41 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "FAMC15/2016", + "link": "https://www.hklii.hk/en/appealhistory/FAMC/2016/15" + } + ], + "case_url": "https://www.hklii.hk/en/cases/hkcfa/2016/41", + "neutral_cit": "[2016] HKCFA 41", + "court_code": "HKCFA", + "content": "FAMC68/2015 HKSAR v. LUK KIN PETER JOSEPH AND ANOTHER\nFAMC Nos 68, 69 of 2015 & 15 of 2016\nFAMC No 68 of 2015\nIN THE COURT OF FINAL APPEAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nMISCELLANEOUS PROCEEDINGS NO 68 OF 2015 (CRIMINAL)\n(ON APPLICATION FOR LEAVE TO APPEAL\nFROM CACC NO 283 OF 2014)\n____________________\nBETWEEN\nHKSAR\nRespondent\nand\nLUK KIN PETER JOSEPH (陸健)\nApplicant\n(1\nst\nDefendant)\n____________________\nFAMC No 69 of 2015\nIN THE COURT OF FINAL APPEAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nMISCELLANEOUS PROCEEDINGS NO 69 OF 2015 (CRIMINAL)\n(ON APPLICATION FOR LEAVE TO APPEAL\nFROM CACC NO 283 OF 2014)\n____________________\nBETWEEN\nHKSAR\nRespondent\nand\nYU OI KEE (余藹琪)\nApplicant\n(2\nnd\nDefendant)\n____________________\nFAMC No 15 of 2016\nIN THE COURT OF FINAL APPEAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nMISCELLANEOUS PROCEEDINGS NO 15 OF 2016 (CRIMINAL)\n(ON APPLICATION FOR LEAVE TO APPEAL\nFROM CACC NO 283 OF 2014)\n____________________\nBETWEEN\nHKSAR\nApplicant\nand\nLUK KIN PETER JOSEPH(陸健)\n1\nst\nRespondent\nYU OI KEE (余藹琪)\n2\nnd\nRespondent\n____________________\nAppeal Committee: Chief Justice Ma, Mr Justice Ribeiro PJ and\n Mr Justice Tang PJ\nDate of Hearing: 19 May 2016\nDate of Determination: 19 May 2016\n________________________\nDETERMINATION\n________________________\nChief Justice Ma:\n1.\nLeave is given for all three applications, on the following questions: -\n(1) What is the meaning of “agent” for the purposes of\ns.9\nof the\nPrevention of Bribery Ordinance\n,\nCap. 201\n(“the POBO”) and specifically whether a person who is under no legal, contractual or fiduciary obligation to act in relation to the affairs or business of another is that person’s “agent” for the purposes of s.9?\n(2) Whether the words “or other document” in s.9(3) of the POBO are to be construed\nejusdem generis\nwith the words which precede them and specifically whether board minutes are documents which come under this definition?\n(3) Whether or not the common law principle as espoused in\nR v McDonnell\n[1966] QB 233\nand\nAttorney-General’s Reference (No. 2 of 1982)\n1 QB 624\n, in the context of the offence of conspiracy to defraud or theft, namely, the principle that the mind and will of the sole director(s) are treated in law as the mind and will of the limited company, applies in the context of the statutory anti-corruption regime under the POBO and, in particular, to the offence of conspiracy for agents to use a document with intent to deceive their principal, contrary to sections 9(3) and 12(1) of the POBO and section\ns 159A\nand 159C of the\nCrimes Ordinance\n,\nCap. 200\n?\n2.\nThese appeals will be listed for hearing on 23 November 2016.\n(Geoffrey Ma)\nChief Justice\n(R A V Ribeiro)\nPermanent Judge\n(Robert Tang)\nPermanent Judge\nMr Edwin Choy and Mr Joe Chan, instructed by V. Hau & Chow, for the 1\nst\nDefendant (Applicant in FAMC 68/2015)\nMr Gerard McCoy SC leading Mr Albert N.B. Wong in FAMC 69/2015, and leading Ms Nisha Mohamed in FAMC 15/2016, instructed by Leung & Lau, for the 2\nnd\nDefendant (Applicant in FAMC 69/2015)\nMr William Tam SC, DDPP, and Ms Samantha Chiu, SPP, of the Department of Justice, for the HKSAR (Applicant in FAMC 15/2016)", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2015/FAMC000068_2015.doc", + "file_name": "FAMC000068_2015.doc", + "file_ext": ".doc", + "status": "failed" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkcfa/2023_HKCFA_30/FAMC000050_2022.txt b/en_cases_hkcfa/2023_HKCFA_30/FAMC000050_2022.txt new file mode 100644 index 0000000..acac4ca --- /dev/null +++ b/en_cases_hkcfa/2023_HKCFA_30/FAMC000050_2022.txt @@ -0,0 +1,50 @@ +FAMC No. 50 of 2022 + [2023] HKCFA 30 + +IN THE COURT OF FINAL APPEAL OF THE +HONG KONG SPECIAL ADMINISTRATIVE REGION + +MIsCELLANEOUS PROCEEDINGS nO. 50 OF 2022 (CRIMINAL) +(ON APPLICATION FOR LEAVE TO APPEAL FROM +HCMA NO. 187 OF 2021) + + + +BETWEEN + + + + + + + +Mr Justice Ribeiro PJ: +At the hearing, we dismissed this leave application for reasons which we now provide. +On 1 May 2020, about three months after the first case of COVID-19 was reported in Hong Kong, eight persons decided to stage a May Day procession from Admiralty Centre to the Central Government Offices to demand unemployment benefits and to protest against COVID restrictions on public gatherings affecting freedom of demonstration. +After ignoring repeated police warnings, they were charged with participating in a prohibited group gathering contrary to section 6 of the Prevention and Control of Disease (Prohibition on Gathering) Regulation (“the Regulation”) which had come into operation on 29 March 2020, having been issued by the Chief Executive in Council as a public health emergency regulation pursuant to section 8 of the Prevention and Control of Disease Ordinance. +The Regulation’s object was to ban “group gatherings” for the purpose of “preventing, protecting against, delaying or otherwise controlling the incidence or transmission of” the COVID-19 virus. Section 3 provided that “No group gathering may take place in any public place during a specified period”. “Group gathering” was defined as “a gathering of more than four persons” and a “prohibited group gathering” was defined as “a group gathering the taking place of which is prohibited under section 3”. Section 6 made it an offence for anyone to participate in or organise, etc, a prohibited group gathering (subject to a defence of lawful authority or reasonable excuse) punishable by a fine and imprisonment for 6 months. A person committing such offence might be given an option of paying a fixed penalty fine of $2,000. Although fixed penalty tickets were issued against them, summonses were issued against the eight defendants since they chose not to pay and to dispute liability. +After trial before the Magistrate, Mr Cheang Kei-hong, they were convicted of participation in a prohibited group gathering contrary to section 6 and sentenced to 14 days’ imprisonment suspended for 18 months. Their appeal before Wong J was dismissed. The Courts below found that the eight defendants had together constituted and participated in a group gathering involving more than the permitted maximum of four persons. Applications to the Judge for certification of points of law with a view to making a leave application to this Court were refused on the basis that the grounds advanced either involved pure questions of fact or were not reasonably arguable. +The present applicants, comprising four of the convicted defendants, now seek certification and leave to appeal. They seek to raise questions as to the true construction of certain sections of the Regulation, in particular, as to the meaning of “group gathering” in the context of the Regulation as a whole, and as to what is capable of constituting a “reasonable excuse”. They wish to challenge the restriction on group gatherings arguing that this involves a disproportionate and unconstitutional infringement of the freedom of demonstration. +It is unnecessary to deal with the specific grounds sought to be advanced since this application falls at the first hurdle. In criminal cases, the Court’s statute provides that leave to appeal shall not be granted unless the court below or the Appeal Committee certifies: +“... that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.” +In the present case, the applicants have no prospect of showing that a point of law of great and general importance is involved in the decision since the Regulation expired at midnight on 31 March 2023 and has since been a dead letter. The proper construction of its provisions, whether regarding its definition of “group gathering” or any of its other sections, is no longer of any general importance, let alone of great and general importance. The prohibition no longer operates so that its constitutionality and questions of proportionality are entirely moot. There is no arguable question of any substantial and grave injustice. +In their reply submissions, the applicants contend that the questions are of great and general importance because “there may be similar regulations enacted in response to similar pandemic[s] in the future”, inviting the Court to “take judicial notice that the SARS outbreak occurred in just less than 20 years before COVID-19”. +That submission is without substance. The hope is obviously that there will not be a fresh pandemic any time soon. But even if there is, no basis exists for assuming that the same public health emergency measures, let alone a regulation having similar wording and calling for a similar construction, would be issued. What control measures may be required would depend on the nature of the pandemic, its mode of infection and a host of other considerations. The SARS outbreak was very different in nature and called for very different public health measures. +The Regulation was not a statute. It was a public health regulation made by the Chief Executive in Council in response to a developing public health emergency. It was on each occasion given a short expiry date and was frequently amended – changing the maximum number of participants in a group gathering eight times before the matter came to trial in the present case. Unlike a property or commercial or criminal statute, there is no question of such a Regulation receiving a beneficial, enduring construction from the Court of Final Appeal. + + + For the aforesaid reasons, leave to appeal was refused. + + + + + + + + + + + +Mr Anson Wong Yu Yat and Mr Jason Kung, instructed by JCC Cheung & Co. Solicitors, for the 1st, 2nd, 5th and 7th Appellants (Applicants) + +Mr Andrew Li, SPP and Mr Christopher Fung, SPP (Ag), of the Department of Justice, for the Respondent diff --git a/en_cases_hkcfa/2023_HKCFA_30/case.json b/en_cases_hkcfa/2023_HKCFA_30/case.json new file mode 100644 index 0000000..a6b5891 --- /dev/null +++ b/en_cases_hkcfa/2023_HKCFA_30/case.json @@ -0,0 +1,26 @@ +{ + "Date": "7 Sep, 2023", + "Action No.": "FAMC50/2022", + "Neutral Cit.": "[2023] HKCFA 30", + "case_title": "HKSAR V. KWOK WING KIN AND OTHERS", + "page_title": "HKSAR V. KWOK WING KIN AND OTHERS | [2023] HKCFA 30 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "FAMC50/2022", + "link": "https://www.hklii.hk/en/appealhistory/FAMC/2022/50" + } + ], + "case_url": "https://www.hklii.hk/en/cases/hkcfa/2023/30", + "neutral_cit": "[2023] HKCFA 30", + "court_code": "HKCFA", + "content": "FAMC50/2022 HKSAR v. KWOK WING KIN AND OTHERS\nFAMC No. 50 of 2022\n[2023] HKCFA 30\nIN THE COURT OF FINAL APPEAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nMISCELLANEOUS PROCEEDINGS NO. 50 OF 2022 (CRIMINAL)\n(ON APPLICATION FOR LEAVE TO APPEAL FROM\nHCMA NO. 187 OF 2021)\n________________________\nBETWEEN\nHKSAR\nRespondent\nand\nKWOK WING KIN (郭永健) (D1)\n1\nst\nAppellant\n(1\nst\nApplicant)\nHO STANLEY WAI HONG (何偉航) (D2)\n2\nnd\nAppellant\n(2\nnd\nApplicant)\nWONG HO MING RAPHAEL (黃浩銘) (D3)\n3\nrd\nAppellant\nTSANG KIN SHING (曾健成) (D4)\n4\nth\nAppellant\nMAK TAK CHING (麥德正) (D5)\n5\nth\nAppellant\n(3\nrd\nApplicant)\nNG MAN YUEN AVERY (吳文遠) (D6)\n6\nth\nAppellant\nLEE CHEUK YAN (李卓人) (D7)\n7\nth\nAppellant\n(4\nth\nApplicant)\nLEUNG KWOK HUNG (梁國雄) (D8)\n8\nth\nAppellant\n________________________\nAppeal Committee:\nMr Justice Ribeiro PJ, Mr Justice Lam PJ and Mr Justice Tang NPJ\nDate of Hearing and Determination:\n4 September 2023\nDate of Reasons for Determination:\n7 September 2023\n______________________________________\nREASONS FOR DETERMINATION\n______________________________________\nMr Justice Ribeiro PJ:\n1.\nAt the hearing, we dismissed this leave application for reasons which we now provide.\n2.\nOn 1 May 2020, about three months after the first case of COVID-19 was reported in Hong Kong, eight persons decided to stage a May Day procession from Admiralty Centre to the Central Government Offices to demand unemployment benefits and to protest against COVID restrictions on public gatherings affecting freedom of demonstration.\n3.\nAfter ignoring repeated police warnings, they were charged with participating in a prohibited group gathering contrary to section 6 of the Prevention and Control of Disease (Prohibition on Gathering) Regulation (“\nthe Regulation\n”)\n[1]\nwhich had come into operation on 29 March 2020, having been issued by the Chief Executive in Council as a public health emergency regulation pursuant to\nsection 8\nof the\nPrevention and Control of Disease Ordinance\n.\n[2]\n4.\nThe Regulation’s object was to ban “group gatherings” for the purpose of “preventing, protecting against, delaying or otherwise controlling the incidence or transmission of” the COVID-19 virus.\n[3]\nSection 3 provided that “No group gathering may take place in any public place during a specified period”.\n[4]\n“Group gathering” was defined as “a gathering of more than four persons”\n[5]\nand a “prohibited group gathering” was defined as “a group gathering the taking place of which is prohibited under section 3”.\n[6]\nSection 6 made it an offence for anyone to participate in or organise, etc, a prohibited group gathering (subject to a defence of lawful authority or reasonable excuse\n[7]\n) punishable by a fine and imprisonment for 6 months. A person committing such offence might be given an option of paying a fixed penalty fine of $2,000.\n[8]\nAlthough fixed penalty tickets were issued against them, summonses were issued against the eight defendants since they chose not to pay and to dispute liability.\n5.\nAfter trial before the Magistrate, Mr Cheang Kei-hong,\n[9]\nthey were convicted of participation in a prohibited group gathering contrary to section 6 and sentenced to 14 days’ imprisonment suspended for 18 months. Their appeal before Wong J\n[10]\nwas dismissed. The Courts below found that the eight defendants had together constituted and participated in a group gathering involving more than the permitted maximum of four persons. Applications to the Judge for certification of points of law with a view to making a leave application to this Court were refused on the basis that the grounds advanced either involved pure questions of fact or were not reasonably arguable.\n[11]\n6.\nThe present applicants, comprising four of the convicted defendants, now seek certification and leave to appeal. They seek to raise questions as to the true construction of certain sections of the Regulation, in particular, as to the meaning of “group gathering” in the context of the Regulation as a whole, and as to what is capable of constituting a “reasonable excuse”. They wish to challenge the restriction on group gatherings arguing that this involves a disproportionate and unconstitutional infringement of the freedom of demonstration.\n7.\nIt is unnecessary to deal with the specific grounds sought to be advanced since this application falls at the first hurdle. In criminal cases, the Court’s statute provides that leave to appeal shall not be granted unless the court below or the Appeal Committee certifies:\n“... that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done.”\n[12]\n8.\nIn the present case, the applicants have no prospect of showing that a point of law of great and general importance is involved in the decision since the Regulation expired at midnight on 31 March 2023 and has since been a dead letter. The proper construction of its provisions, whether regarding its definition of “group gathering” or any of its other sections, is no longer of any general importance, let alone of great and general importance. The prohibition no longer operates so that its constitutionality and questions of proportionality are entirely moot. There is no arguable question of any substantial and grave injustice.\n9.\nIn their reply submissions, the applicants contend that the questions are of great and general importance because “there may be similar regulations enacted in response to similar pandemic[s] in the future”, inviting the Court to “take judicial notice that the SARS outbreak occurred in just less than 20 years before COVID-19”.\n10.\nThat submission is without substance. The hope is obviously that there will not be a fresh pandemic any time soon. But even if there is, no basis exists for assuming that the same public health emergency measures, let alone a regulation having similar wording and calling for a similar construction, would be issued. What control measures may be required would depend on the nature of the pandemic, its mode of infection and a host of other considerations. The SARS outbreak was very different in nature and called for very different public health measures.\n11.\nThe Regulation was not a statute. It was a public health regulation made by the Chief Executive in Council in response to a developing public health emergency. It was on each occasion given a short expiry date and was frequently amended – changing the maximum number of participants in a group gathering eight times before the matter came to trial in the present case. Unlike a property or commercial or criminal statute, there is no question of such a Regulation receiving a beneficial, enduring construction from the Court of Final Appeal.\n12.\nFor the aforesaid reasons, leave to appeal was refused.\n(R A V Ribeiro)\nPermanent Judge\n(M H Lam)\nPermanent Judge\n(Robert Tang)\nNon-Permanent Judge\nMr Anson Wong Yu Yat and Mr Jason Kung, instructed by JCC Cheung & Co. Solicitors, for the 1\nst\n, 2\nnd\n, 5\nth\nand 7\nth\nAppellants (Applicants)\nMr Andrew Li, SPP and Mr Christopher Fung, SPP (Ag), of the Department of Justice, for the Respondent\n[1]\nCap 599G\n, the 29 April 2020 version being in force at the material time.\n[2]\nCap 599\n.\n[3]\nRegulation section 4(1).\n[4]\nRegulation section 3(1). Then operative was a 14-day period from 24 April to 7 May 2020. These periods were subsequently frequently extended.\n[5]\nRegulation section 2.\n[6]\nIbid\n.\n[7]\nRegulation section 7.\n[8]\nRegulation section 8.\n[9]\nESFS 5-12/2020.\n[10]\n[2022] HKCFI 2525\n.\n[11]\n[2022] HKCFI 3831\n.\n[12]\nHong Kong Court of Final Appeal Ordinance\n(\nCap 484\n) section 32(2).", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2022/FAMC000050_2022.doc", + "file_name": "FAMC000050_2022.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkcfi/1995_HKCFI_34/HCA007670_1992_abp_fallback.txt b/en_cases_hkcfi/1995_HKCFI_34/HCA007670_1992_abp_fallback.txt new file mode 100644 index 0000000..49e33d4 --- /dev/null +++ b/en_cases_hkcfi/1995_HKCFI_34/HCA007670_1992_abp_fallback.txt @@ -0,0 +1,35 @@ +No. A7670 of 1992 IN THE SUPREME COURT OF HONG KONG HIGH COURT ____________ BETWEEN LAI SAU KING Plaintiff and LAM CHARP FAT Defendant ____________ Before : The Hon. Mr. Justice Barnett in Court Dates of Hearing: 8th - 10th, 13th - 17th and 20th - 22nd February 1995 Date of Delivery of Judgment: 10th March 1995 _______________ J U D G M E N T _______________ Introduction This action arises out of the former cohabitation between the parties. It is the plaintiff’s case that, during the period of cohabitation, she made available, to put it neutrally, certain sums of money to the plaintiff. She now pursues four separate claims against the defendant : - + First, she seeks a declaration that Shop 6, Ground Floor, Jing Ying Building, Yuen Long (the shop) is held on resulting trust for her by the defendant to the extent of 50%. This on the ground that she contributed some 36% of the purchase price and made other contributions in kind. She also seeks other appropriate declarations and orders. Second, she seeks a declaration that she is the sole beneficial owner of Flat A, 1st Floor, Shiu Yat House, On Lok Road, Yuen Long (the flat) now held jointly by the plaintiff and the defendant, and other appropriate relief. This on the ground that she contributed the whole of the purchase price of the flat. Third, she seeks $50,000 as money lent to the defendant. Fourth, she claims damages of $75,262.07 for breach of an agreement by which she loaned $200,000 to the defendant, the money having been raised by way of mortgage on the flat. The plaintiff’s case The plaintiff gave evidence. She said she first met the defendant when aged 17 or 18 (which would be in about 1965) through their mothers. They became acquaintances. Then the plaintiff went to Holland where she worked hard on a farm and occasionally in a restaurant. She married a Mr. Ottens in 1972 by whom she had a son Wai Chi in November 1972. They separated in 1977 and divorced in 1979. At about the beginning of 1977, the plaintiff set up her own restaurant in Holland, Hong Kong Restaurant. For this purpose, she +purchased a house with the help of a bank loan of Dutch Guilders 90,000. The ground floor of the house was turned into the restaurant. For this, the plaintiff obtained a loan from a finance company of Guilders 80,000, secured on the inventory of the restaurant. The plaintiff also expended a sum in the region of Guilders 80,000 from her own pocket. Additionally, she obtained a loan of Guilders 80,000 from her father, the intention being to pay off the loan used to purchase the house. In the event, it was not used for that purpose but for general business purposes and was not required to be repaid. The restaurant made little profit over the years, although the plaintiff was paid between Guilders 2,000 and 3,000 per month as wages. Ultimately, in circumstances which are a matter of dispute, the restaurant was sold in 1980. In 1977, the plaintiff said she met the defendant by chance when, with her younger brother, she went into the defendant’s restaurant in Amsterdam to use the telephone. The defendant’s restaurant was called Sam Sing Restaurant. Following this, they frequently contacted each other and at the end of the year or at the beginning of 1978 began to cohabit. Next came the purchase of the shop. Because of its importance, I set out the plaintiff’s evidence in full : - “In 1979, I let the defendant bring Guilders 160,000 to Hong Kong to buy property in Hong Kong. We intended to come back to Hong Kong for further business development. We had a discussion. We decided to use our money to buy property in Hong Kong. He brought the money to Hong Kong and afterwards returned to Holland and asked me to go to Hong Kong to look at the site.” + The plaintiff said that the money she gave to the defendant to take to Hong Kong was money which she had saved. The defendant left the money with his mother in Hong Kong. On the defendant’s return to Holland, he said that the plaintiff should go to Hong Kong in 1980 to look at the site. This she did, and visited the site with the defendant’s mother where she obtained a catalogue or brochure showing the size of the shop premises. On her return to Holland, she and the defendant decided to buy the shop and asked the defendant’s mother to purchase it for them. The price was to be $1,138,380. The defendant’s mother was given a power of attorney to act on behalf of the defendant in the purchase of the shop. The shop was registered in the defendant’s name only. I should mention here that the plaintiff was asked why the shop was registered in the defendant’s sole name. The plaintiff said that she asked the defendant why this had been done and the defendant said : “in future when we get married, you automatically get a share of the property”. Mr. Li, for the defendant, at that stage as at other times objected to the evidence because the plaintiff’s pleaded case was one of contribution giving rise to a resulting trust. He said that it was not open to the plaintiff to rely upon a promise, an agreement or any other form of factual basis giving rise to the plaintiff’s interest other than the one pleaded. Mr. Poon, for the plaintiff, said it was and would remain the plaintiff’s case that her interest arose because of contribution. No amendment was made to the statement of claim. Accordingly, I disregard this piece of evidence as I do assertions by the plaintiff that there was an agreement that they were acquiring half shares in the shop. + The plaintiff said that she also made decisions about and arrangements for the decoration of the shop including the installation of a cockloft, a staircase and a rolling shutter. She said she paid in arrears 6 months management fees of $100.00 per month for the period February to July 1981. She said that, with the defendant’s mother, she negotiated a tenancy agreement of the shop with a Mr. Yeung Kam Sing in 1981. The rent arising from that tenancy was collected by the defendant’s mother. After the plaintiff returned to Hong Kong in 1982 to settle there, the defendant’s mother intended to return all the rent to her but the plaintiff suggested that the mother keep half of the accumulated rent in the bank to earn interest while the plaintiff received the other half for household expenses. The plaintiff explained that, in mid 1982, she set up her own boutique. From this, she had enough money for her expenses so told the defendant’s mother to keep the rent. Between 1985 and 1987, the plaintiff and the defendant sold fruit and snacks from the shop. From 1st September 1987 until 31st August 1990, the shop was let at $22,000 or 23,000 per month. And from 1st November 1990 until 31st October 1993 at $38,000 per month. The defendant collected the rent throughout and kept it all in spite of the plaintiff asking for it. After returning to Hong Kong in 1982, the plaintiff purchased the flat using Guilders 160,000 arising from the sale of her restaurant in Holland. She said she sold the restaurant in 1981 to her younger brother for that sum. She kept the house in Holland which was subsequently let. The tenant paid rent to her bank account from which she authorised the defendant to draw half, the other half being used to pay off the bank loan on +the house. The defendant, however, drew more than half and later the tenant stopped paying. Eventually, she sold the house in 1985 by private sale to a neighbour for Guilders 90,000. After paying off the bank, little money remained. The plaintiff said that the flat was put in the joint names of the defendant and herself because the defendant returned to Hong Kong for a visit in June 1982. The defendant said it would be more convenient for him to apply for water and other utilities because the plaintiff was busy with her boutique and the two children. Accordingly, by nomination dated 30th June 1982, the plaintiff nominated the defendant as joint tenant. The defendant had previously been married, that marriage having been dissolved in Hong Kong in January 1980. He had one son by that marriage. After the flat was purchased in mid 1982, the plaintiff said that she, the defendant and their two sons went to live there. Shortly thereafter, the defendant returned to Holland and, until 1985, lived partly in Holland and partly in Hong Kong where he stayed both with the plaintiff and with his mother. The plaintiff looked after the defendant’s son until 1983 when the boy went to live with the defendant’s mother. After the defendant returned to Hong Kong to settle in 1985, he still divided his time between the plaintiff and his mother because, according to the plaintiff, the defendant could not face the plaintiff because of what he had done with the rent of her house in Holland. Eventually, the defendant moved out of the flat altogether at the end of 1989. In 1987, the defendant told the plaintiff that he wanted to run a business and asked her to obtain a loan of $200,000. An agreement was +signed with the Kwang Tung Provincial Bank on 12th March 1987. On 20th March, $200,000 were paid into a savings account opened in the plaintiff’s sole name, the flat having been mortgaged to the bank for the purpose of the loan. $100,000 were immediately transferred to the defendant. The defendant was to repay the loan and he kept the passbook for this purpose. In cross-examination, the plaintiff accepted that the defendant decided that he only wanted a loan of $100,000 and that the balance would be used to repay the mortgage, to which arrangement the plaintiff said she agreed. She said that 3 withdrawals in October 1987 of $42,480, $50,400 and $50,430 and re-deposits of slightly increased amounts were 3 forex trades. They were carried out at the request of the defendant who simply gave her the necessary documents to sign because all transactions on the savings account required the plaintiff’s signature. The plaintiff said that when the defendant finally left her and the flat at the end of 1989, he returned the passbook to her. She found a balance of only $238.99. She discovered that some $60,000 of the loan had not been repaid to the bank. Through solicitors, she discharged the mortgage by paying the solicitors $75,262.07 which included $69,082.07 for redemption of the mortgage. On 14th March 1988, the plaintiff said that she transferred $50,000 to the defendant’s account at his request to help him buy shares. The defendant never repaid that sum. The plaintiff’s evidence covered many years and a great deal of ground. She was, accordingly, subjected to a lengthy and probing cross- +examination. In this cross-examination 2 important matters were canvassed. First, at the beginning of 1980, the plaintiff became the subject of bankruptcy proceedings in Holland. The genesis of these proceedings lay in the default by the plaintiff’s husband in repayment of a bank loan for a car. Although the plaintiff was guarantor of this loan, her liability, according to sealed copies of documents from the District Court in Assen, appears to have arisen from community of property. Although she had been divorced in February 1979, partition of the joint matrimonial property had not yet been enforced. Accordingly, the plaintiff was liable for half of the outstanding loan, her liability being about Guilders 10,500. According to the court documents, she was declared bankrupt on 29th April 1980. In his report dated 6th June 1980, the plaintiff’s trustee in bankruptcy (the trustee) recorded that the plaintiff had sold her restaurant to her brother on 24th March 1980, in consideration of the brother making repayments on the restaurant loan. The mortgage on the house was being repaid out of rent paid by the brother to the plaintiff. Neither the bank nor the finance company appeared, according to the trustee, interested in foreclosure. On 19th September , the trustee reported a deficit of about Guilders 12,000 including the car loan. By 14th January 1981, the deficit had risen to approximately Guilders 27,000. However, the trustee anticipated a settlement by virtue of a payment of Guilders 20,000 to be made by her brother on behalf of the plaintiff. On 24th March 1981, the court sanctioned a settlement by which preferential creditors were paid in +full and ordinary creditors, who included the finance company which had made the car loan, received 25%. The plaintiff was remarkably unperturbed by all this. According to her, in 1979 or 1980 she was chased for payment of the car loan. She spoke to her former husband, Mr. Ottens, and also to the company’s lawyer. Following that, she understood that Mr. Ottens had repaid the loan and returned the car. She was no longer pressed about the bankruptcy proceedings. She did speak to the trustee who asked her if she could pay the debts. She told him she could. There was no enquiry about her financial position and she did not disclose it. Indeed, she said it was not necessary to disclose it because the trustee would soon find out anyway. She said she did not borrow from her family. She only told the trustee she would borrow if necessary. She did not pay her creditors because they trusted her and would only press her after she was declared bankrupt. In any event, when she transferred her restaurant to her brother, she said he would have to be responsible for her debts. Since then, she had not been pressed. She was adamant that she was never declared bankrupt. At that time, both the plaintiff and the defendant were using the same accountant in Holland. For the purpose of these proceedings, both parties made enquires of the accountant. The replies which they received and which were in evidence before me are conflicting. Various suggestions were made as to the reason for this conflict. I am quite satisfied that there is nothing sinister attaching to this conflict. The accountant was trying to provide information about matters which occurred over ten years before. It may be that his records were incomplete and his memory not wholly accurate. Further, in all probability, he was irritated by the demands of two +erstwhile clients. It is clear to me that the conflict between the accountant’s letters amounts to no more than confusion and that the letters must be given no weight. The documents to which weight must plainly be attached are the court documents relating to the bankruptcy proceedings. From the documents, it is clear that the plaintiff was declared bankrupt and that her ordinary creditors were not paid in full. Yet, if the plaintiff is believed, she had or could have made available funds from which the creditors could have been paid. The second factor was that two documents were discovered during trial. These were two sale and purchase agreements by which the plaintiff’s restaurant was sold first to her brother and then by her brother to another. An agreement dated 24th March 1980 recorded the sale by the plaintiff to her brother for Guilders 80,000 of which Guilders 2,666 were to be paid in cash, Guilders 40,000 were to settle a loan made by her brother to the plaintiff in 1977 and the balance was to defray the loan from the finance company. The plaintiff explained that the actual price was Guilders 160,000 but this was stated in the agreement as Guilders 80,000 to avoid the attention of the tax authorities. In any event, the plaintiff said that because her brother had only just come to Holland, he had no money at all to pay her at the time. The second agreement dated 17th April 1981 recorded the sale by the plaintiff’s brother, also for Guilders 80,000. The plaintiff said that +again the real price was Guilders 160,000. She gave the same reason as before for the difference between the recorded and real prices. She said it was upon this sale that she actually received Guilders 160,000 and was able to buy the flat in Hong Kong. The defendant’s case The defendant’s case was somewhat startling to say the least. The defendant said that he went to Holland in 1971 where he worked as a chef until 1975 when he opened Sam Sing Restaurant. He was divorced in January 1980, met the plaintiff for the first time in mid 1981 and at the end of that year began to cohabit with her. If that evidence is true, there can be no question of the plaintiff having contributed to the shop as it had already been purchased a year previously. According to the defendant, he took Guilders 200,000 back to Hong Kong in 1978 which, with his share of his father’s estate, was used for the shop. In 1982, the defendant said he returned to Hong Kong with the plaintiff who did not want to stay in Holland. In Hong Kong, they lived with his mother in her flat No. 7C located in the same building as the shop. The defendant returned to Holland where he received a call from the plaintiff saying that she did not get on with his mother and wished to purchase a flat in which to live with their two children. Before the defendant could react, the plaintiff had paid the deposit of $30,000 which the defendant said came from Guilders 20,000 he had left with her for expenses. The plaintiff, however, had no money to complete the purchase and, with his agreement, the balance of $270,000 was provided by his mother from family funds. He has since repaid his mother that sum. + In 1982 and 1983, the plaintiff ran a boutique for which she obtained an advance of $44,000 from the defendant’s mother. After that the plaintiff invested in a restaurant in Tsim Sha Tsui but withdrew in 1985 when it made no profit. The defendant said he returned to Hong Kong in 1985, recovered possession of the shop from the tenant, Mr. Yeung, who had not paid the management fees and caused some damage. He began the Universal Fruit business in his name although the plaintiff assisted him. Later, he changed the business to 328 Snack Shop in which the plaintiff played no part. That business ceased about July 1987. Soon after, the shop was let. At the time, when the defendant was considering changing to the 328 Snack Shop, the plaintiff said she wanted to go into business with two ex-schoolmates. Between them, they opened Hoi Wan Good Food Shop but after one month, they quarrelled. To help the plaintiff raise the money for that business, the defendant said he agreed to mortgage the flat for $200,000. It was agreed that each would have $100,000 and if both had good business, they would repay the mortgage together. The defendant used the money to change his business. The plaintiff told him that she withdrew large sums for speculation. It is of course not in dispute that several large sums were transferred from the loan passbook into the plaintiff’s forex account. It is, however, in dispute as to who instigated these transfers. In any event, the defendant denied that he was responsible and said that he had never had possession of the passbook. + The defendant said he repaid the mortgage until January 1991 because “if I didn’t, who would”. He said he ceased living at the flat since December 1989 when, to avoid a dispute with the plaintiff, he stayed with his mother for two days. When he returned, he found the plaintiff had changed the locks of the flat and he could not gain access. He continued to pay the mortgage thereafter because he still wanted to try and maintain a happy family and anyway his daughter was living there. It is not in dispute that the plaintiff had a daughter by the defendant in 1987. In 1991, however, the defendant said there was a bad quarrel between the parties after which he ceased paying the mortgage. As to the loan of $50,000, the defendant said that in 1987, when he let the shop, he lent money acquired from that letting to the plaintiff for investment. He said she transferred it back to his account in March 1988 when he asked for its return so that he could pay for some shares. Availability of funds Unlike the plaintiff, the defendant is able to point with some conviction to sources of funds available to him or his mother for the purchase of the shop and flat. First, the defendant said, and there seems no reason to doubt it, that his Sam Sing Restaurant which he opened in Holland in 1975 was very successful. In evidence was a commercially printed postcard of the restaurant from which it appears to be large, well decorated and well appointed. It seems the restaurant was still in business until at least 1989 because the defendant’s younger brother, Lam Bo, continued to operate it until then. It was, said the defendant, from the profits of the restaurant that in 1978, he brought Guilders 200,000 from +Holland to Hong Kong. The money was left with his mother who suggested putting it into property rather than a bank. As a result, the shop was eventually purchased. It must be said that the defendant brought that money to Hong Kong for the same reason as the plaintiff remitted her funds namely, to avoid coming to the attention of the tax authorities. Second, it is clear that the defendant’s family was quite well-off. The defendant’s father died in 1974 leaving land. Some land was sold privately and some resumed by the government for cash compensation and Letters B. New Territories Land Office records show that the private sales were worth approximately $1.3 m. The defendant also said, and it was not challenged, that his father left $300,000 cash. The defendant, his mother and sister all said that the family had approximately $2 m. There seems no reason to doubt this. According to the defendant and his mother, the $2 m. was divided into four shares, one for each of the defendant and his two brothers, and one for his mother. The defendant’s share, $500,000, together with the sum of Guilders 200,000 would, it seems, more or less have financed the purchase of the shop. The money for the purchase of the flat came from money still retained by the defendant’s mother but which was recently repaid by the defendant. The plaintiff’s account of the funding of the shop and the flat lacks any support other than that she is named as a joint owner of the flat. That, however, is equally consistent with the parties’ relationship as with a +contribution to or complete provision of the price. The evidence of the bankruptcy proceedings and of the two sale and purchase agreements of her restaurant tended to undermine the plaintiff’s case. The defendant’s credibility There is, however, evidence which in my judgment destroys the defendant’s credibility entirely and which goes some way to breathing life into the plaintiff’s case. The plaintiff has three photographs (exhibit P1) labelled A, B and C taken, she said, in Holland on the occasion of the wedding banquet of an acquaintance, Madam Yeung Wan Hen (PW2). The plaintiff said that the banquet was held in the defendant’s Sam Sing Restaurant on 2nd December 1978, i.e. at least two years before the defendant said that they first met. Photograph B shows the defendant sitting behind PW2, the bridegroom and friends. Photograph C shows the plaintiff, defendant and plaintiff’s son Wai Chi. Photographs A and B also show the traditional red wedding cloth signed by guests at a wedding banquet. This too was produced and appears to bear, amongst others, the signatures of the plaintiff, defendant and plaintiff’s son. PW2 gave evidence. She said her future husband worked in Sam Sing Restaurant where she occasionally helped him. She saw the plaintiff and the defendant there in 1978 while preparing for her wedding. After the wedding, she went to live in the Sam Sing Restaurant’s dormitory where she saw the plaintiff and defendant sharing a room. She confirmed the identity of the persons appearing in the photographs, where the photographs +were taken and the contents of the wedding cloth. She said that the defendant in fact helped take some photographs on the occasion. She identified him in court, picking him out of three men sitting together, one of whom was the defendant’s younger brother, Lam Bo. The defendant asserted that the photographs do not depict his restaurant, that the man alleged to be him is his elder brother Lam Chak Tai, and that the lady alleged to be the plaintiff is unknown to him as is the child (it is worth noting that, in cross-examination, it was put to the plaintiff that the lady in photograph C was the niece of PW2’s husband). He expressed his suspicion about the wedding cloth, saying that it looked in good condition although the inscription of the occasion was of poor quality compared with the guests’ signatures. He could not explain why the characters of his name appear on the cloth. He would not however go so far as to say that it was some sort of fabrication. I have no hesitation in rejecting the defendant’s evidence on this topic. The photographs were quite clearly taken in Sam Sing Restaurant. Photograph C shows part of a window of the establishment. The “M” of Sam and “S” of Sing can be seen in reverse. Although obscured by a curtain, it is almost possible to read the word “Sam”. Further, with other wording on the window, the whole clearly resembles the logo of Sam Sing Restaurant as shown upon the postcard to which I referred earlier. In photograph A, although taken in another part of the restaurant, the word “Sing” and the “S” of Sam are clearly visible on the window in the background. Further, the decoration of the restaurant and the chairs shown in the postcard appear in the photographs. The defendant explained that he copied the decoration from another restaurant and indeed that there is a +number of similar restaurants in Amsterdam. I found that explanation rather feeble. In my view, the decorations shown in the photographs and the postcard are identical, down to the last detail including the red lanterns with their yellow tassels shown in the postcard, because the bottom of the yellow tassels appear in the photographs. I have no doubt they are the same restaurant. Notwithstanding the lapse of over 16 years since it is said the photographs were taken, the man in photograph C is plainly the defendant, who has a rather pronounced and distinctive aspect to his left jaw. The lady in photograph C is certainly the plaintiff. It is significant that the defendant’s elder brother, Lam Chak Tai, who was identified as the man in photograph C and photograph B, did not give evidence. He was in Hong Kong throughout the period of the trial. Early in the proceedings I was told from the bar that it was unlikely he would be available to give evidence because he was involved in an important ceremony, which I understood to be connected with the birth of his first grandson. In the event, he did not give evidence, partly for that reason; I was told also because he was superstitious and because he was reluctant to give evidence. Mr. Li, of course, was only following his instructions. But I found his instructions far from convincing or satisfactory. The plaintiff’s witnesses I see no reason to believe that PW2 was other than an honest witness who reliably recalled her wedding banquet and the persons there present. She said that copies of photographs taken at her wedding were sent to the plaintiff about a week after the wedding banquet itself. The +wedding cloth she brought to Hong Kong when she returned in 1982, where it has been in the custody of her father-in-law until provided to the plaintiff for the purpose of the trial. The plaintiff called two other witnesses in support of her case. Yeung Kam Sing was the first tenant of the shop in 1982 who, I bear in mind, might not have been an entirely disinterested witness, having been sued by the defendant for possession of the shop. He said that he met the defendant’s mother at the shop when he went to look at it but she told him she was unable to make any decision without instruction from her daughter-in-law, the plaintiff. That night, he said, he met the plaintiff and her mother-in-law at Lok To Restaurant where agreement was reached. He said in mid August he went to a firm of solicitors to sign the tenancy agreement, where the plaintiff and her mother-in-law were present. He also said that the plaintiff wrote a receipt for the cheque deposit which he then paid and that he was able to recognise her signature on subsequent rent receipts in which the plaintiff was named as landlord. He said he no longer had those receipts. That evidence was substantially in accord with that of the plaintiff. The only real flaw was as to the date when all this took place. In answer to a request for further and better particulars, the plaintiff said that she “negotiated with the first tenant, Mr. Yeung Kam Sing in beginning of 1981, inside and outside the shop . . .”. The plaintiff’s passport showed and she accepted that she was not in Hong Kong at the beginning of 1981. She was in Hong Kong only between 10th June and 8th July. The tenancy agreement is dated 23rd June 1981. Apart from the evidence of Mr. Yeung, there was nothing to suggest that the date on the tenancy agreement is not +the date when it was actually signed. Therefore, it was perfectly possible for the plaintiff to have taken part in the negotiations and in the signing of the tenancy agreement. Mr. Yeung, apart from putting the visit to the solicitor’s office in mid August, also said that he did not go in the shop to inspect it. After all this time, I do not find these discrepancies to be of great significance. The plaintiff also called another acquaintance, Madam Wong Kwai Hing. This lady said that she was in the flat at the end of December 1989 when a man came, took some clothing and left behind a passbook. She identified this passbook as the plaintiff’s passbook relating to the loan. She also purported to identify the defendant whom she said she had not seen before or since. Mr. Poon for the plaintiff did not seek to rely on that identification. Madam Wong also purported to recall the exact date on which this incident occurred. In the circumstances, I attach little weight to her evidence. Its only significance, it seems to me, is to demonstrate the extraordinary lengths to which the plaintiff must have gone in order to substantiate the story she has allegedly concocted. There are other discrepancies in the plaintiff’s case. For example, the plaintiff was adamant that the $200,000 loan was for the defendant only, and that she did not need it for and had no part in the business of the Hoi Wan Good Food Shop. PW2, however, in cross-examination said she had heard that the plaintiff was operating the shop and that the plaintiff had mentioned that she was a partner. That answer, however, was a vague one involving reference to both a fruit shop and a good food shop. I am satisfied that PW2 was simply confused about the businesses which had +previously been carried on in the shop which, at the time mentioned to her, would have been of no great significance. Criticisms of the plaintiff’s case I accept that, notwithstanding my rejection of the defendant’s evidence, there must still be credible evidence of the plaintiff’s assertion, particularly in relation to the shop which is in the defendant’s name only. In assessing the plaintiff’s evidence upon which her case alone depends, I keep in mind all the factors urged upon me by Mr. Li. In particular, there is effectively a complete lack of any documentary evidence. The plaintiff said that on bringing Guilders 160,000 from the sale of her restaurant to Hong Kong, she deposited it in a bank. The records relating to that deposit she had long since thrown away. In contrast, she was insistent that Lam Bo has in Holland several boxes of her belongings including three boxes of documents which he kept for her after she sold the house in Holland. There is some credence perhaps to be attached to this. Lam Bo brought to Hong Kong, just before trial, the two agreements for the sale of the plaintiff’s restaurant in Holland and also some papers relating to the loan made to the plaintiff by her father in connection with her restaurant. Lam Bo denied that he had simply extracted from the boxes documents favouring the defendant. He explained that they were three documents he had found when clearing up for the defendant when the defendant finally left Holland in 1985. He said that there are no other documents and no boxes of belongings. Lam Bo’s evidence I am unable to accept for reasons to which I shall come. + Mr. Li pointed out that the plaintiff produced one document namely, what is essentially an address book in which there is a note to the effect that the defendant had borrowed (or had had lent) Guilders 160,000 in 1979, also that the plaintiff had lent Guilders 50,000 to her father. I attach no weight to the document as it is not clear when or why this entry was made. Mr. Li, however, made two points on it. First, the use of the word “borrow” or “lent”. He said that the plaintiff had in evidence also spoken of lending Guilders 160,000 to the defendant or of the defendant borrowing that sum. He argued that if Guilders 160,000 was given to the defendant, it was given as a loan. Therefore, no questions of contribution and trust arose. At best, he said, the plaintiff would be entitled to seek repayment of the loan, a claim which is now statute barred. I reject that argument. If the plaintiff’s evidence is accepted, it is plain she was not using those words in their strict sense but in the sense simply of having transferred money to the defendant. Second, Mr. Li said that it is curious that the plaintiff was lending money to her father when the loan for the restaurant was still outstanding. The plaintiff explained that it was for the purpose of sponsoring a visit by her father to Holland. I find that explanation not to be wholly lacking in credibility. Next, Mr. Li submitted that the bankruptcy proceedings cast doubt both upon the plaintiff’s financial position and her credibility generally. He said that it is inexplicable that the plaintiff could be as well off as she said she was at the time and able to pay her creditors in full when the court documents show that she had to borrow money from her family, +that the agreement for the sale of the restaurant to her brother recites that she had earlier borrowed from him, and that the ordinary creditors received a dividend of only 25%. Further, the plaintiff’s evidence to the effect that she was ignorant of the progress and effect of the bankruptcy proceedings is unacceptable from someone who had been and continued to be a business woman. Mr. Li added that the bankruptcy documents and the two agreements for the sale of the restaurant indicated that, even if the price for the restaurant was actually Guilders 160,000, she would have received nothing like that sum once various commitments had been paid off. Mr. Li then pointed to confusion on the part of the plaintiff. In a letter before action, the plaintiff’s solicitors asserted a claim by the plaintiff to the whole of the shop. In contrast, no claim for rent was made until the statement of claim was amended. In relation to the flat, Mr. Li suggested that the plaintiff’s explanation of why the defendant’s name was added is barely credible, particularly as the defendant was then only in Hong Kong for a short stay and not yet intending to settle in Hong Kong. Finally, Mr. Li said that the plaintiff’s evidence about the loan of $200,000 was inconsistent with her pleaded case and anyway incredible. He pointed out that the plaintiff’s evidence was that, having arranged the loan from the bank, the defendant said that he only required $100,000, which was transferred to his business at the shop, and that he would use the balance to pay off the mortgage. The plaintiff agreed to that. Mr. Li said +the plaintiff’s evidence was that there was then a number of forex transactions, using money left in the plaintiff’s account, at the instigation of the defendant who prepared the necessary documents which she merely signed. Mr. Li said that the plaintiff is a business woman in her own right who admitted trading in forex and gold and would hardly be amenable to signing without question any documents which the defendant put before her. The defendant’s witnesses The defendant, for reasons which I have already given, was left with little credibility after his effort to try and establish that he had no link or relationship with the plaintiff before 1981. That part of his evidence I reject entirely. The remainder, necessarily, I view with the utmost suspicion. In support of his case, the defendant called four witnesses. His younger brother, Lam Bo, said that he first met the plaintiff only in 1981 in Sam Sing Restaurant. He said he did not know PW2 or her husband. He said that the photographs do not show Sam Sing Restaurant, that the man in photograph C is Lam Chak Tai, while the lady is not the plaintiff. In view of my findings in relation to the photographs, I reject Lam Bo’s evidence. Mr. Leung Kwok Choi had been employed by the defendant as a chef in Sam Sing Restaurant for about nine months. He had been approached by the plaintiff and signed a prepared statement in which he said the plaintiff and the defendant met him when he arrived in Europe in 1980. He was called by the defendant. He said that the date given in that +statement was incorrect and the date should have been in 1981. In my view, Mr. Leung clearly could not recall exactly when he arrived and was in Holland. He did however say that the plaintiff and the defendant were living together and that he saw the defendant’s mother when she visited Holland. The defendant’s mother also gave evidence. She is an engaging but redoubtable lady of at least 80. She was plainly determined to protect her family and family interests. Her evidence was emphasized periodically by “I didn’t know her at the time” when referring to the plaintiff. She was adamant that she did not know the plaintiff until after the shop had been let for the first time in 1982. Yet, if Mr. Leung is to be believed, she must have met the plaintiff in Holland at least in 1981. The defendant’s mother certainly supported the defendant’s case. She said she was responsible for buying the shop, and also a flat for Lam Bo, using money in her possession that is, the brothers’ respective shares of the estate and, in relation to the defendant, Guilders 200,000 which he had provided. She said she arranged decoration of the shop and also its letting before the plaintiff came on the scene. Later, she advanced $270,000 to the plaintiff to purchase the flat. It is, in my view, on that sum of $270,000 that her evidence finally founders. It was not until late in the defendant’s cross-examination that this figure, a precise one, first occurred when the defendant said that he had repaid his mother $270,000 in two instalments, being $150,000 and $120,000, in mid 1994 out of rent collected from the shop. His mother gave evidence to the same effect. She had, however, made a witness statement +on 4th August 1994 in which she said that she totally gave the plaintiff $297,000, the plaintiff having paid a deposit of $3,000. She made no mention of any repayment by the defendant. Given the explanation for the sum of $270,000, it is difficult to see why that amount only emerged so late in the case and why the defendant’s mother should have referred to a different sum in her statement, a sum which she simply never mentioned at trial. It is no explanation that the mother is an old and illiterate lady. She was quite alert and quick to understand questions put to her. She had no difficulty in remembering figures, dates and other facts when it suited. With great reluctance, I find myself unable to accept her evidence. The only witness called by the defendant who remained undamaged was his sister, Lam Yuk Wah. The importance of her evidence was that the plaintiff was not involved in the purchase, decoration or letting of the shop and that she first met the plaintiff in early 1982. From the plaintiff’s evidence and her passport, the plaintiff returned to Hong Kong on 10th February 1982 to settle. She had, however, been in Hong Kong in June/July the previous year by when, there is no dispute, the plaintiff and the defendant were already cohabiting. It seems inconceivable that the plaintiff would not seek to assist the defendant in dealing with the shop even if the defendant had provided the finance, and that she would not have met the defendant’s mother and sister at that time. Evaluation The plaintiff was generally a composed witness who gave evidence of events spanning many years. Her account was an elaborate +one. But it hung together and was not, as far as I could see, undermined in any significant or substantial way in a lengthy cross-examination. The dates, sequence of events and other details did not begin to unravel under persistent questioning as they would undoubtedly have done if the story was wholly contrived. The plaintiff’s account was, however, exposed to all the criticisms which I have already set out. It is true that the sums which the plaintiff said she was able to save or derive from the sale of her restaurant were substantial, particularly when set against the background of her financial difficulty in Holland. Chinese people, however, have a well deserved reputation for hard work and thriftiness, particularly when working in another country. I see no reason why the plaintiff should not have been able to accumulate funds as the defendant said he did. Both parties said that they tried to avoid the attention of the tax authorities in Holland. The plaintiff is as likely as the defendant to have been anxious to repatriate hard-earned money. She would have had, I have no doubt, no scruples about putting a price lower than the real one in a contract and, I have no doubt, about depriving creditors of their full entitlement. In all the circumstances, after accepting all the justified criticism of the plaintiff’s evidence, in particular the complete lack of any documentation to support the financial aspect of it, I am satisfied that the plaintiff was giving an honest account of the financial transactions between her and the defendant. In relation to the shop, I find that the plaintiff did give the defendant Guilders 160,000 which was used as part of the purchase money for the shop. I infer from what passed between the parties at the time and from the plaintiff’s activities in visiting the site and the shop generally that it was the intention of the parties that the plaintiff should have a beneficial interest in the shop. That beneficial interest, however, I +find to be limited to her financial contribution. I am quite unable to accept that the somewhat loose cohabitation arrangement between the parties, the relatively short period during which the plaintiff looked after the defendant’s son or any other activities on her part, somehow increased her contribution to an interest in the shop. Although pleaded, no evidence was led as to the exchange rate between the Dutch Guilder and Hong Kong dollar at the time. Unless the parties can, as they should, reach agreement upon the rate, I propose to order an enquiry for that purpose so that the correct percentage of the plaintiff’s contribution can be assessed. Subject thereto, the plaintiff appears entitled to the relief which she seeks in relation to the shop. I also find that the plaintiff paid the whole of the purchase price of the flat. There can be no question in the circumstances but that it was intended that she should be the beneficial owner. Again, the plaintiff appears entitled to the relief which she seeks. I also find that the plaintiff loaned the sum of $50,000 to the defendant in 1987. She is entitled to the repayment of that sum. In spite of Mr. Li’s submission, I do not find that the plaintiff has departed from her pleaded case in relation to the loan of $200,000. Accepting, as I do, the plaintiff’s evidence, the whole sum was obtained at the request of and made available to the defendant. How the defendant then decided to use the money was entirely a matter for him as long as he honoured the agreement to repay the loan which, in the event, he did not. Accordingly, I find the plaintiff entitled to the damages she seeks. + The plaintiff also seeks payment of her share of the rental income of the shop from 16th August 1987 onwards. In fact, the shop was let for three years from 1st September 1987 at a rent of $22,000 per month which continued until 1st November 1990 when, under a new agreement, the tenant paid $38,000 per month. Although that agreement expired in 1993 at the end of three years, the tenant has, according to the defendant, remained in the shop paying the same rent. There being no evidence to the contrary, apart from the plaintiff’s suspicion, the proportion of rent payable to the plaintiff must be calculated on the basis of a rent of $38,000 still being payable. I leave it to the parties to work out the exact figure. +Discretion On the assumption of all facts being found against him, Mr. Li fell back upon the principle that he who seeks equity must come with clean hands to receive it, a principle followed by the Court of Appeal in Yim Bo Ying v. Chan Iu Warm (1985) HKLR 354. In that case, the defendant said that he had provided the purchase price but directed the conveyance into the name of the plaintiff to effect a saving in stamp duty. The Court of Appeal denied the defendant relief upon the basis that “there is no resulting trust where it would be against public policy to permit the presumption”. Mr. Li relied upon three matters. First, the second sum of Guilders 160,000 at least was brought by the plaintiff to Hong Kong to avoid the attention of the tax authorities. Second, the first sum of Guilders 160,000 was not, when it could have been, made available for payment of creditors in Holland. Third, the mis-statement of the sale price of the plaintiff’s restaurant was apt to deceive both the tax authorities and the trustee. Therefore, said Mr. Li, the money contributed by the plaintiff was tainted money, the plaintiff should be denied the equitable relief which she seeks in relation to the shop and flat, and as the Court of Appeal said, “the estate should lie where it falls”. Mr. Poon drew my attention to Snells Equity, page 32 paragraph 6, where it is said : - “The maxim must not be taken too widely; “Equity does not demand that its suitors shall have led blameless lives”. What bars the claim is not a general depravity but one which has “an immediate and +necessary relation to the equity sued for,” and it is not balanced by any mitigating factors.” Mr. Poon made two points. First, he said that, unlike the case with which the Court of Appeal was dealing, there was no direct connection between the taint, if it be a taint, affecting the plaintiff’s money and the purchase of the shop and flat. Second, the plaintiff’s activities were not tax evasion, as I was minded to describe them, but rather the not uncommon practice of a lay person who, having received money which he believes not to be taxable, keeps it secret in order to avoid becoming unnecessarily entangled with the tax authorities. I accept that, in Hong Kong at least, it is not necessary to declare to the tax authorities all sums of money of which a person is or becomes possessed. It seems to me, however, that if a business person seeks to hide substantial savings, the proper and adverse inference to be drawn is that they derived from some income or profit which itself has not fully been disclosed. I would think that a person, like the plaintiff, in business on his or her own account can have few illusions on that score. While what the plaintiff did may not have been tax evasion in its strict sense, it was certainly an evasion of the tax authorities. The same applies to the understatement of the price in the agreement for the sale of the restaurant. The money is plainly tainted. I accept that the taint attaching to the money has no direct connection with the use to which the money was ultimately put. There is, however, a plain connection in that the money affected by the taint was used for the purchase of and effectively has become the shop and flat. If +the matters rested there, I would be inclined to deny the plaintiff the relief which she seeks in relation to these two premises. I take into account, however, that the defendant on his own evidence is not blameless in relation to the tax authorities in Holland. Further, the plaintiff has been hardly treated by the defendant in relation to these two premises. The manner in which the defendant has conducted these proceedings, in which he has not only denied any contribution at all on the part of the plaintiff but sought to deny any knowledge of her existence in what can only have been an attempt to try and avoid the loss of any interest in the shop, militates strongly against the defendant. In the circumstances, I am not prepared to deprive the plaintiff of the relief which she seeks. Accordingly, I give judgment for the plaintiff for declarations that the plaintiff is the sole beneficial owner of the flat and that the defendant holds the legal estate jointly with the plaintiff on trust for the plaintiff. I also order that the defendant transfer and vest the legal estate in the flat in the plaintiff. I grant declarations that the plaintiff is beneficial owner of the shop as to a percentage to be ascertained, and that the defendant holds the legal estate in the shop on trust for the plaintiff to that extent. I order that the defendant pay to the plaintiff her share or rental income from the shop calculated with effect from 1st September 1987. I am satisfied that, in principle, there should be an order for sale of the shop, the net proceeds of which are to be divided between the plaintiff and defendant, according to their respective entitlements. I will hear counsel on the precise terms of such an order if the terms cannot be agreed. + The defendant is to repay the plaintiff the sum of $50,000 being money lent. I award the plaintiff damages for breach of contract amounting to $75,262.07. I dismiss the counter claim. I make an order nisi that the plaintiff have the costs of the action. I will hear counsel further on the question of interest if this cannot be agreed. There is to be liberty to apply. (N.J. Barnett) Judge of the High Court Mr. J. Poon, inst’d by Leo K.W. Lok & Co. for Plaintiff Mr. C.Y. Li, inst’d by Woo & Woo for Defendant + + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/en_cases_hkcfi/1995_HKCFI_34/case.json b/en_cases_hkcfi/1995_HKCFI_34/case.json new file mode 100644 index 0000000..8e832cf --- /dev/null +++ b/en_cases_hkcfi/1995_HKCFI_34/case.json @@ -0,0 +1,26 @@ +{ + "Date": "10 Mar, 1995", + "Action No.": "HCA7670/1992", + "Neutral Cit.": "[1995] HKCFI 34", + "case_title": "LAI SAU KING V. LAM CHARP FAT", + "page_title": "LAI SAU KING V. LAM CHARP FAT | [1995] HKCFI 34 | HKLII", + "case_history": [ + { + "name": "HCA7670/1992", + "link": "https://www.hklii.hk/en/appealhistory/HCA/1992/7670" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkcfi/1995/34", + "neutral_cit": "[1995] HKCFI 34", + "court_code": "HKCFI", + "content": "HCA007670/1992 LAI SAU KING v. LAM CHARP FAT\nHCA007670/1992\nNo. A7670 of 1992\nIN THE SUPREME COURT OF HONG KONG\nHIGH COURT\n____________\nBETWEEN\nLAI SAU KING\nPlaintiff\nAND\nLAM CHARP FAT\nDefendant\n____________\nCoram : The Hon. Mr. Justice Barnett in Court\nDates of hearing: 8, 9, 10, 13, 14, 15, 16, 17, 20, 21 and\n22 February 1995\nDate of delivery of judgment: 10 March 1995\n__________________\nJ U D G M E N T\n__________________\nIntroduction\n1.\nThis action arises out of the former cohabitation between the parties. It is the plaintiff's case that, during the period of cohabitation, she made available, to put it neutrally, certain sums of money to the plaintiff. She now pursues four separate claims against the defendant : -\nFirst, she seeks a declaration that Shop 6, Ground Floor, Jing Ying Building, Yuen Long (the shop) is held on resulting trust for her by the defendant to the extent of 50%. This on the ground that she contributed some 36% of the purchase price and made other contributions in kind. She also seeks other appropriate declarations and orders.\nSecond, she seeks a declaration that she is the sole beneficial owner of Flat A, 1st Floor, Shiu Yat House, On Lok Road, Yuen Long (the flat) now held jointly by the plaintiff and the defendant, and other appropriate relief. This on the ground that she contributed the whole of the purchase price of the flat.\nThird, she seeks $50,000 as money lent to the defendant.\nFourth, she claims damages of $75,262.07 for breach of an agreement by which she loaned $200,000 to the defendant, the money having been raised by way of mortgage on the flat.\nThe plaintiff's case\n2.\nThe plaintiff gave evidence. She said she first met the defendant when aged 17 or 18 (which would be in about 1965) through their mothers. They became acquaintances. Then the plaintiff went to Holland where she worked hard on a farm and occasionally in a restaurant. She married a Mr. Ottens in 1972 by whom she had a son Wai Chi in November 1972. They separated in 1977 and divorced in 1979.\n3.\nAt about the beginning of 1977, the plaintiff set up her own restaurant in Holland, Hong Kong Restaurant. For this purpose, she purchased a house with the help of a bank loan of Dutch Guilders 90,000. The ground floor of the house was turned into the restaurant. For this, the plaintiff obtained a loan from a finance company of Guilders 80,000, secured on the inventory of the restaurant. The plaintiff also expended a sum in the region of Guilders 80,000 from her own pocket. Additionally, she obtained a loan of Guilders 80,000 from her father, the intention being to pay off the loan used to purchase the house. In the event, it was not used for that purpose but for general business purposes and was not required to be repaid. The restaurant made little profit over the years, although the plaintiff was paid between Guilders 2,000 and 3,000 per month as wages. Ultimately, in circumstances which are a matter of dispute, the restaurant was sold in 1980.\n4.\nIn 1977, the plaintiff said she met the defendant by chance when, with her younger brother, she went into the defendant's restaurant in Amsterdam to use the telephone. The defendant's restaurant was called Sam Sing Restaurant. Following this, they frequently contacted each other and at the end of the year or at the beginning of 1978 began to cohabit.\n5.\nNext came the purchase of the shop. Because of its importance, I set out the plaintiff's evidence in full : -\n\"In 1979, I let the defendant bring Guilders 160,000 to Hong Kong to buy property in Hong Kong. We intended to come back to Hong Kong for further business development. We had a discussion. We decided to use our money to buy property in Hong Kong. He brought the money to Hong Kong and afterwards returned to Holland and asked me to go to Hong Kong to look at the site.\"\n6.\nThe plaintiff said that the money she gave to the defendant to take to Hong Kong was money which she had saved. The defendant left the money with his mother in Hong Kong. On the defendant's return to Holland, he said that the plaintiff should go to Hong Kong in 1980 to look at the site. This she did, and visited the site with the defendant's mother where she obtained a catalogue or brochure showing the size of the shop premises. On her return to Holland, she and the defendant decided to buy the shop and asked the defendant's mother to purchase it for them. The price was to be $1,138,380. The defendant's mother was given a power of attorney to act on behalf of the defendant in the purchase of the shop. The shop was registered in the defendant's name only.\n7.\nI should mention here that the plaintiff was asked why the shop was registered in the defendant's sole name. The plaintiff said that she asked the defendant why this had been done and the defendant said : \"in future when we get married, you automatically get a share of the property\". Mr. Li, for the defendant, at that stage as at other times objected to the evidence because the plaintiff's pleaded case was one of contribution giving rise to a resulting trust. He said that it was not open to the plaintiff to rely upon a promise, an agreement or any other form of factual basis giving rise to the plaintiff's interest other than the one pleaded. Mr. Poon, for the plaintiff, said it was and would remain the plaintiff's case that her interest arose because of contribution. No amendment was made to the statement of claim. Accordingly, I disregard this piece of evidence as I do assertions by the plaintiff that there was an agreement that they were acquiring half shares in the shop.\n8.\nThe plaintiff said that she also made decisions about and arrangements for the decoration of the shop including the installation of a cockloft, a staircase and a rolling shutter. She said she paid in arrears 6 months management fees of $100.00 per month for the period February to July 1981. She said that, with the defendant's mother, she negotiated a tenancy agreement of the shop with a Mr. Yeung Kam Sing in 1981. The rent arising from that tenancy was collected by the defendant's mother. After the plaintiff returned to Hong Kong in 1982 to settle there, the defendant's mother intended to return all the rent to her but the plaintiff suggested that the mother keep half of the accumulated rent in the bank to earn interest while the plaintiff received the other half for household expenses. The plaintiff explained that, in mid 1982, she set up her own boutique. From this, she had enough money for her expenses so told the defendant's mother to keep the rent.\n9.\nBetween 1985 and 1987, the plaintiff and the defendant sold fruit and snacks from the shop. From 1st September 1987 until 31st August 1990, the shop was let at $22,000 or 23,000 per month. And from 1st November 1990 until 31st October 1993 at $38,000 per month. The defendant collected the rent throughout and kept it all in spite of the plaintiff asking for it.\n10.\nAfter returning to Hong Kong in 1982, the plaintiff purchased the flat using Guilders 160,000 arising from the sale of her restaurant in Holland. She said she sold the restaurant in 1981 to her younger brother for that sum. She kept the house in Holland which was subsequently let. The tenant paid rent to her bank account from which she authorised the defendant to draw half, the other half being used to pay off the bank loan on the house. The defendant, however, drew more than half and later the tenant stopped paying. Eventually, she sold the house in 1985 by private sale to a neighbour for Guilders 90,000. After paying off the bank, little money remained.\n11.\nThe plaintiff said that the flat was put in the joint names of the defendant and herself because the defendant returned to Hong Kong for a visit in June 1982. The defendant said it would be more convenient for him to apply for water and other utilities because the plaintiff was busy with her boutique and the two children. Accordingly, by nomination dated 30th June 1982, the plaintiff nominated the defendant as joint tenant.\n12.\nThe defendant had previously been married, that marriage having been dissolved in Hong Kong in January 1980. He had one son by that marriage. After the flat was purchased in mid 1982, the plaintiff said that she, the defendant and their two sons went to live there. Shortly thereafter, the defendant returned to Holland and, until 1985, lived partly in Holland and partly in Hong Kong where he stayed both with the plaintiff and with his mother. The plaintiff looked after the defendant's son until 1983 when the boy went to live with the defendant's mother. After the defendant returned to Hong Kong to settle in 1985, he still divided his time between the plaintiff and his mother because, according to the plaintiff, the defendant could not face the plaintiff because of what he had done with the rent of her house in Holland. Eventually, the defendant moved out of the flat altogether at the end of 1989.\n13.\nIn 1987, the defendant told the plaintiff that he wanted to run a business and asked her to obtain a loan of $200,000. An agreement was signed with the Kwang Tung Provincial Bank on 12th March 1987. On 20th March, $200,000 were paid into a savings account opened in the plaintiff's sole name, the flat having been mortgaged to the bank for the purpose of the loan. $100,000 were immediately transferred to the defendant. The defendant was to repay the loan and he kept the passbook for this purpose. In cross-examination, the plaintiff accepted that the defendant decided that he only wanted a loan of $100,000 and that the balance would be used to repay the mortgage, to which arrangement the plaintiff said she agreed. She said that 3 withdrawals in October 1987 of $42,480, $50,400 and $50,430 and re-deposits of slightly increased amounts were 3 forex trades. They were carried out at the request of the defendant who simply gave her the necessary documents to sign because all transactions on the savings account required the plaintiff's signature.\n14.\nThe plaintiff said that when the defendant finally left her and the flat at the end of 1989, he returned the passbook to her. She found a balance of only $238.99. She discovered that some $60,000 of the loan had not been repaid to the bank. Through solicitors, she discharged the mortgage by paying the solicitors $75,262.07 which included $69,082.07 for redemption of the mortgage.\n15.\nOn 14th March 1988, the plaintiff said that she transferred $50,000 to the defendant's account at his request to help him buy shares. The defendant never repaid that sum.\n16.\nThe plaintiff's evidence covered many years and a great deal of ground. She was, accordingly, subjected to a lengthy and probing cross-examination. In this cross-examination 2 important matters were canvassed.\n17.\nFirst, at the beginning of 1980, the plaintiff became the subject of bankruptcy proceedings in Holland. The genesis of these proceedings lay in the default by the plaintiff's husband in repayment of a bank loan for a car. Although the plaintiff was guarantor of this loan, her liability, according to sealed copies of documents from the District Court in Assen, appears to have arisen from community of property. Although she had been divorced in February 1979, partition of the joint matrimonial property had not yet been enforced. Accordingly, the plaintiff was liable for half of the outstanding loan, her liability being about Guilders 10,500. According to the court documents, she was declared bankrupt on 29th April 1980.\n18.\nIn his report dated 6th June 1980, the plaintiff's trustee in bankruptcy (the trustee) recorded that the plaintiff had sold her restaurant to her brother on 24th March 1980, in consideration of the brother making repayments on the restaurant loan. The mortgage on the house was being repaid out of rent paid by the brother to the plaintiff. Neither the bank nor the finance company appeared, according to the trustee, interested in foreclosure.\n19.\nOn 19th September , the trustee reported a deficit of about Guilders 12,000 including the car loan. By 14th January 1981, the deficit had risen to approximately Guilders 27,000. However, the trustee anticipated a settlement by virtue of a payment of Guilders 20,000 to be made by her brother on behalf of the plaintiff. On 24th March 1981, the court sanctioned a settlement by which preferential creditors were paid in full and ordinary creditors, who included the finance company which had made the car loan, received 25%.\n20.\nThe plaintiff was remarkably unperturbed by all this. According to her, in 1979 or 1980 she was chased for payment of the car loan. She spoke to her former husband, Mr. Ottens, and also to the company's lawyer. Following that, she understood that Mr. Ottens had repaid the loan and returned the car. She was no longer pressed about the bankruptcy proceedings. She did speak to the trustee who asked her if she could pay the debts. She told him she could. There was no enquiry about her financial position and she did not disclose it. Indeed, she said it was not necessary to disclose it because the trustee would soon find out anyway. She said she did not borrow from her family. She only told the trustee she would borrow if necessary. She did not pay her creditors because they trusted her and would only press her after she was declared bankrupt. In any event, when she transferred her restaurant to her brother, she said he would have to be responsible for her debts. Since then, she had not been pressed. She was adamant that she was never declared bankrupt.\n21.\nAt that time, both the plaintiff and the defendant were using the same accountant in Holland. For the purpose of these proceedings, both parties made enquires of the accountant. The replies which they received and which were in evidence before me are conflicting. Various suggestions were made as to the reason for this conflict. I am quite satisfied that there is nothing sinister attaching to this conflict. The accountant was trying to provide information about matters which occurred over ten years before. It may be that his records were incomplete and his memory not wholly accurate. Further, in all probability, he was irritated by the demands of two erstwhile clients. It is clear to me that the conflict between the accountant's letters amounts to no more than confusion and that the letters must be given no weight.\n22.\nThe documents to which weight must plainly be attached are the court documents relating to the bankruptcy proceedings. From the documents, it is clear that the plaintiff was declared bankrupt and that her ordinary creditors were not paid in full. Yet, if the plaintiff is believed, she had or could have made available funds from which the creditors could have been paid.\n23.\nThe second factor was that two documents were discovered during trial. These were two sale and purchase agreements by which the plaintiff's restaurant was sold first to her brother and then by her brother to another. An agreement dated 24th March 1980 recorded the sale by the plaintiff to her brother for Guilders 80,000 of which Guilders 2,666 were to be paid in cash, Guilders 40,000 were to settle a loan made by her brother to the plaintiff in 1977 and the balance was to defray the loan from the finance company.\n24.\nThe plaintiff explained that the actual price was Guilders 160,000 but this was stated in the agreement as Guilders 80,000 to avoid the attention of the tax authorities. In any event, the plaintiff said that because her brother had only just come to Holland, he had no money at all to pay her at the time.\n25.\nThe second agreement dated 17th April 1981 recorded the sale by the plaintiff's brother, also for Guilders 80,000. The plaintiff said that again the real price was Guilders 160,000. She gave the same reason as before for the difference between the recorded and real prices. She said it was upon this sale that she actually received Guilders 160,000 and was able to buy the flat in Hong Kong.\nThe defendant's case\n26.\nThe defendant's case was somewhat startling to say the least. The defendant said that he went to Holland in 1971 where he worked as a chef until 1975 when he opened Sam Sing Restaurant. He was divorced in January 1980, met the plaintiff for the first time in mid 1981 and at the end of that year began to cohabit with her. If that evidence is true, there can be no question of the plaintiff having contributed to the shop as it had already been purchased a year previously. According to the defendant, he took Guilders 200,000 back to Hong Kong in 1978 which, with his share of his father's estate, was used for the shop.\n27.\nIn 1982, the defendant said he returned to Hong Kong with the plaintiff who did not want to stay in Holland. In Hong Kong, they lived with his mother in her flat No. 7C located in the same building as the shop. The defendant returned to Holland where he received a call from the plaintiff saying that she did not get on with his mother and wished to purchase a flat in which to live with their two children. Before the defendant could react, the plaintiff had paid the deposit of $30,000 which the defendant said came from Guilders 20,000 he had left with her for expenses. The plaintiff, however, had no money to complete the purchase and, with his agreement, the balance of $270,000 was provided by his mother from family funds. He has since repaid his mother that sum.\n28.\nIn 1982 and 1983, the plaintiff ran a boutique for which she obtained an advance of $44,000 from the defendant's mother. After that the plaintiff invested in a restaurant in Tsim Sha Tsui but withdrew in 1985 when it made no profit. The defendant said he returned to Hong Kong in 1985, recovered possession of the shop from the tenant, Mr. Yeung, who had not paid the management fees and caused some damage. He began the Universal Fruit business in his name although the plaintiff assisted him. Later, he changed the business to 328 Snack Shop in which the plaintiff played no part. That business ceased about July 1987. Soon after, the shop was let.\n29.\nAt the time, when the defendant was considering changing to the 328 Snack Shop, the plaintiff said she wanted to go into business with two ex-schoolmates. Between them, they opened Hoi Wan Good Food Shop but after one month, they quarrelled. To help the plaintiff raise the money for that business, the defendant said he agreed to mortgage the flat for $200,000. It was agreed that each would have $100,000 and if both had good business, they would repay the mortgage together. The defendant used the money to change his business. The plaintiff told him that she withdrew large sums for speculation.\n30.\nIt is of course not in dispute that several large sums were transferred from the loan passbook into the plaintiff's forex account. It is, however, in dispute as to who instigated these transfers. In any event, the defendant denied that he was responsible and said that he had never had possession of the passbook.\n31.\nThe defendant said he repaid the mortgage until January 1991 because \"if I didn't, who would\". He said he ceased living at the flat since December 1989 when, to avoid a dispute with the plaintiff, he stayed with his mother for two days. When he returned, he found the plaintiff had changed the locks of the flat and he could not gain access. He continued to pay the mortgage thereafter because he still wanted to try and maintain a happy family and anyway his daughter was living there. It is not in dispute that the plaintiff had a daughter by the defendant in 1987. In 1991, however, the defendant said there was a bad quarrel between the parties after which he ceased paying the mortgage.\n32.\nAs to the loan of $50,000, the defendant said that in 1987, when he let the shop, he lent money acquired from that letting to the plaintiff for investment. He said she transferred it back to his account in March 1988 when he asked for its return so that he could pay for some shares.\nAvailability of funds\n33.\nUnlike the plaintiff, the defendant is able to point with some conviction to sources of funds available to him or his mother for the purchase of the shop and flat. First, the defendant said, and there seems no reason to doubt it, that his Sam Sing Restaurant which he opened in Holland in 1975 was very successful. In evidence was a commercially printed postcard of the restaurant from which it appears to be large, well decorated and well appointed. It seems the restaurant was still in business until at least 1989 because the defendant's younger brother, Lam Bo, continued to operate it until then. It was, said the defendant, from the profits of the restaurant that in 1978, he brought Guilders 200,000 from Holland to Hong Kong. The money was left with his mother who suggested putting it into property rather than a bank. As a result, the shop was eventually purchased.\n34.\nIt must be said that the defendant brought that money to Hong Kong for the same reason as the plaintiff remitted her funds namely, to avoid coming to the attention of the tax authorities.\n35.\nSecond, it is clear that the defendant's family was quite well-off. The defendant's father died in 1974 leaving land. Some land was sold privately and some resumed by the government for cash compensation and Letters B. New Territories Land Office records show that the private sales were worth approximately $1.3 m. The defendant also said, and it was not challenged, that his father left $300,000 cash. The defendant, his mother and sister all said that the family had approximately $2 m. There seems no reason to doubt this.\n36.\nAccording to the defendant and his mother, the $2 m. was divided into four shares, one for each of the defendant and his two brothers, and one for his mother. The defendant's share, $500,000, together with the sum of Guilders 200,000 would, it seems, more or less have financed the purchase of the shop. The money for the purchase of the flat came from money still retained by the defendant's mother but which was recently repaid by the defendant.\n37.\nThe plaintiff's account of the funding of the shop and the flat lacks any support other than that she is named as a joint owner of the flat. That, however, is equally consistent with the parties' relationship as with a contribution to or complete provision of the price. The evidence of the bankruptcy proceedings and of the two sale and purchase agreements of her restaurant tended to undermine the plaintiff's case.\nThe defendant's credibility\n38.\nThere is, however, evidence which in my judgment destroys the defendant's credibility entirely and which goes some way to breathing life into the plaintiff's case. The plaintiff has three photographs (exhibit P1) labelled A, B and C taken, she said, in Holland on the occasion of the wedding banquet of an acquaintance, Madam Yeung Wan Hen (PW2). The plaintiff said that the banquet was held in the defendant's Sam Sing Restaurant on 2nd December 1978, i.e. at least two years before the defendant said that they first met. Photograph B shows the defendant sitting behind PW2, the bridegroom and friends. Photograph C shows the plaintiff, defendant and plaintiff's son Wai Chi.\n39.\nPhotographs A and B also show the traditional red wedding cloth signed by guests at a wedding banquet. This too was produced and appears to bear, amongst others, the signatures of the plaintiff, defendant and plaintiff's son.\n40.\nPW2 gave evidence. She said her future husband worked in Sam Sing Restaurant where she occasionally helped him. She saw the plaintiff and the defendant there in 1978 while preparing for her wedding. After the wedding, she went to live in the Sam Sing Restaurant's dormitory where she saw the plaintiff and defendant sharing a room. She confirmed the identity of the persons appearing in the photographs, where the photographs were taken and the contents of the wedding cloth. She said that the defendant in fact helped take some photographs on the occasion. She identified him in court, picking him out of three men sitting together, one of whom was the defendant's younger brother, Lam Bo.\n41.\nThe defendant asserted that the photographs do not depict his restaurant, that the man alleged to be him is his elder brother Lam Chak Tai, and that the lady alleged to be the plaintiff is unknown to him as is the child (it is worth noting that, in cross-examination, it was put to the plaintiff that the lady in photograph C was the niece of PW2's husband). He expressed his suspicion about the wedding cloth, saying that it looked in good condition although the inscription of the occasion was of poor quality compared with the guests' signatures. He could not explain why the characters of his name appear on the cloth. He would not however go so far as to say that it was some sort of fabrication.\n42.\nI have no hesitation in rejecting the defendant's evidence on this topic. The photographs were quite clearly taken in Sam Sing Restaurant. Photograph C shows part of a window of the establishment. The \"M\" of Sam and \"S\" of Sing can be seen in reverse. Although obscured by a curtain, it is almost possible to read the word \"Sam\". Further, with other wording on the window, the whole clearly resembles the logo of Sam Sing Restaurant as shown upon the postcard to which I referred earlier. In photograph A, although taken in another part of the restaurant, the word \"Sing\" and the \"S\" of Sam are clearly visible on the window in the background. Further, the decoration of the restaurant and the chairs shown in the postcard appear in the photographs. The defendant explained that he copied the decoration from another restaurant and indeed that there is a number of similar restaurants in Amsterdam. I found that explanation rather feeble. In my view, the decorations shown in the photographs and the postcard are identical, down to the last detail including the red lanterns with their yellow tassels shown in the postcard, because the bottom of the yellow tassels appear in the photographs. I have no doubt they are the same restaurant.\n43.\nNotwithstanding the lapse of over 16 years since it is said the photographs were taken, the man in photograph C is plainly the defendant, who has a rather pronounced and distinctive aspect to his left jaw. The lady in photograph C is certainly the plaintiff. It is significant that the defendant's elder brother, Lam Chak Tai, who was identified as the man in photograph C and photograph B, did not give evidence. He was in Hong Kong throughout the period of the trial. Early in the proceedings I was told from the bar that it was unlikely he would be available to give evidence because he was involved in an important ceremony, which I understood to be connected with the birth of his first grandson. In the event, he did not give evidence, partly for that reason; I was told also because he was superstitious and because he was reluctant to give evidence. Mr. Li, of course, was only following his instructions. But I found his instructions far from convincing or satisfactory.\nThe plaintiff's witnesses\n44.\nI see no reason to believe that PW2 was other than an honest witness who reliably recalled her wedding banquet and the persons there present. She said that copies of photographs taken at her wedding were sent to the plaintiff about a week after the wedding banquet itself. The wedding cloth she brought to Hong Kong when she returned in 1982, where it has been in the custody of her father-in-law until provided to the plaintiff for the purpose of the trial.\n45.\nThe plaintiff called two other witnesses in support of her case. Yeung Kam Sing was the first tenant of the shop in 1982 who, I bear in mind, might not have been an entirely disinterested witness, having been sued by the defendant for possession of the shop. He said that he met the defendant's mother at the shop when he went to look at it but she told him she was unable to make any decision without instruction from her daughter-in-law, the plaintiff. That night, he said, he met the plaintiff and her mother-in-law at Lok To Restaurant where agreement was reached. He said in mid August he went to a firm of solicitors to sign the tenancy agreement, where the plaintiff and her mother-in-law were present. He also said that the plaintiff wrote a receipt for the cheque deposit which he then paid and that he was able to recognise her signature on subsequent rent receipts in which the plaintiff was named as landlord. He said he no longer had those receipts.\n46.\nThat evidence was substantially in accord with that of the plaintiff. The only real flaw was as to the date when all this took place. In answer to a request for further and better particulars, the plaintiff said that she \"negotiated with the first tenant, Mr. Yeung Kam Sing in beginning of 1981, inside and outside the shop . . .\". The plaintiff's passport showed and she accepted that she was not in Hong Kong at the beginning of 1981. She was in Hong Kong only between 10th June and 8th July. The tenancy agreement is dated 23rd June 1981. Apart from the evidence of Mr. Yeung, there was nothing to suggest that the date on the tenancy agreement is not the date when it was actually signed. Therefore, it was perfectly possible for the plaintiff to have taken part in the negotiations and in the signing of the tenancy agreement.\n47.\nMr. Yeung, apart from putting the visit to the solicitor's office in mid August, also said that he did not go in the shop to inspect it. After all this time, I do not find these discrepancies to be of great significance.\n48.\nThe plaintiff also called another acquaintance, Madam Wong Kwai Hing. This lady said that she was in the flat at the end of December 1989 when a man came, took some clothing and left behind a passbook. She identified this passbook as the plaintiff's passbook relating to the loan. She also purported to identify the defendant whom she said she had not seen before or since. Mr. Poon for the plaintiff did not seek to rely on that identification. Madam Wong also purported to recall the exact date on which this incident occurred. In the circumstances, I attach little weight to her evidence. Its only significance, it seems to me, is to demonstrate the extraordinary lengths to which the plaintiff must have gone in order to substantiate the story she has allegedly concocted.\n49.\nThere are other discrepancies in the plaintiff's case. For example, the plaintiff was adamant that the $200,000 loan was for the defendant only, and that she did not need it for and had no part in the business of the Hoi Wan Good Food Shop. PW2, however, in cross-examination said she had heard that the plaintiff was operating the shop and that the plaintiff had mentioned that she was a partner. That answer, however, was a vague one involving reference to both a fruit shop and a good food shop. I am satisfied that PW2 was simply confused about the businesses which had previously been carried on in the shop which, at the time mentioned to her, would have been of no great significance.\nCriticisms of the plaintiff's case\n50.\nI accept that, notwithstanding my rejection of the defendant's evidence, there must still be credible evidence of the plaintiff's assertion, particularly in relation to the shop which is in the defendant's name only. In assessing the plaintiff's evidence upon which her case alone depends, I keep in mind all the factors urged upon me by Mr. Li. In particular, there is effectively a complete lack of any documentary evidence. The plaintiff said that on bringing Guilders 160,000 from the sale of her restaurant to Hong Kong, she deposited it in a bank. The records relating to that deposit she had long since thrown away. In contrast, she was insistent that Lam Bo has in Holland several boxes of her belongings including three boxes of documents which he kept for her after she sold the house in Holland. There is some credence perhaps to be attached to this. Lam Bo brought to Hong Kong, just before trial, the two agreements for the sale of the plaintiff's restaurant in Holland and also some papers relating to the loan made to the plaintiff by her father in connection with her restaurant. Lam Bo denied that he had simply extracted from the boxes documents favouring the defendant. He explained that they were three documents he had found when clearing up for the defendant when the defendant finally left Holland in 1985. He said that there are no other documents and no boxes of belongings. Lam Bo's evidence I am unable to accept for reasons to which I shall come.\n51.\nMr. Li pointed out that the plaintiff produced one document namely, what is essentially an address book in which there is a note to the effect that the defendant had borrowed (or had had lent) Guilders 160,000 in 1979, also that the plaintiff had lent Guilders 50,000 to her father. I attach no weight to the document as it is not clear when or why this entry was made. Mr. Li, however, made two points on it. First, the use of the word \"borrow\" or \"lent\". He said that the plaintiff had in evidence also spoken of lending Guilders 160,000 to the defendant or of the defendant borrowing that sum. He argued that if Guilders 160,000 was given to the defendant, it was given as a loan. Therefore, no questions of contribution and trust arose. At best, he said, the plaintiff would be entitled to seek repayment of the loan, a claim which is now statute barred.\n52.\nI reject that argument. If the plaintiff's evidence is accepted, it is plain she was not using those words in their strict sense but in the sense simply of having transferred money to the defendant.\n53.\nSecond, Mr. Li said that it is curious that the plaintiff was lending money to her father when the loan for the restaurant was still outstanding. The plaintiff explained that it was for the purpose of sponsoring a visit by her father to Holland. I find that explanation not to be wholly lacking in credibility.\n54.\nNext, Mr. Li submitted that the bankruptcy proceedings cast doubt both upon the plaintiff's financial position and her credibility generally. He said that it is inexplicable that the plaintiff could be as well off as she said she was at the time and able to pay her creditors in full when the court documents show that she had to borrow money from her family, that the agreement for the sale of the restaurant to her brother recites that she had earlier borrowed from him, and that the ordinary creditors received a dividend of only 25%. Further, the plaintiff's evidence to the effect that she was ignorant of the progress and effect of the bankruptcy proceedings is unacceptable from someone who had been and continued to be a business woman.\n55.\nMr. Li added that the bankruptcy documents and the two agreements for the sale of the restaurant indicated that, even if the price for the restaurant was actually Guilders 160,000, she would have received nothing like that sum once various commitments had been paid off.\n56.\nMr. Li then pointed to confusion on the part of the plaintiff. In a letter before action, the plaintiff's solicitors asserted a claim by the plaintiff to the whole of the shop. In contrast, no claim for rent was made until the statement of claim was amended.\n57.\nIn relation to the flat, Mr. Li suggested that the plaintiff's explanation of why the defendant's name was added is barely credible, particularly as the defendant was then only in Hong Kong for a short stay and not yet intending to settle in Hong Kong.\n58.\nFinally, Mr. Li said that the plaintiff's evidence about the loan of $200,000 was inconsistent with her pleaded case and anyway incredible. He pointed out that the plaintiff's evidence was that, having arranged the loan from the bank, the defendant said that he only required $100,000, which was transferred to his business at the shop, and that he would use the balance to pay off the mortgage. The plaintiff agreed to that. Mr. Li said the plaintiff's evidence was that there was then a number of forex transactions, using money left in the plaintiff's account, at the instigation of the defendant who prepared the necessary documents which she merely signed. Mr. Li said that the plaintiff is a business woman in her own right who admitted trading in forex and gold and would hardly be amenable to signing without question any documents which the defendant put before her.\nThe defendant's witnesses\n59.\nThe defendant, for reasons which I have already given, was left with little credibility after his effort to try and establish that he had no link or relationship with the plaintiff before 1981. That part of his evidence I reject entirely. The remainder, necessarily, I view with the utmost suspicion.\n60.\nIn support of his case, the defendant called four witnesses. His younger brother, Lam Bo, said that he first met the plaintiff only in 1981 in Sam Sing Restaurant. He said he did not know PW2 or her husband. He said that the photographs do not show Sam Sing Restaurant, that the man in photograph C is Lam Chak Tai, while the lady is not the plaintiff. In view of my findings in relation to the photographs, I reject Lam Bo's evidence.\n61.\nMr. Leung Kwok Choi had been employed by the defendant as a chef in Sam Sing Restaurant for about nine months. He had been approached by the plaintiff and signed a prepared statement in which he said the plaintiff and the defendant met him when he arrived in Europe in 1980. He was called by the defendant. He said that the date given in that statement was incorrect and the date should have been in 1981. In my view, Mr. Leung clearly could not recall exactly when he arrived and was in Holland. He did however say that the plaintiff and the defendant were living together and that he saw the defendant's mother when she visited Holland.\n62.\nThe defendant's mother also gave evidence. She is an engaging but redoubtable lady of at least 80. She was plainly determined to protect her family and family interests. Her evidence was emphasized periodically by \"I didn't know her at the time\" when referring to the plaintiff. She was adamant that she did not know the plaintiff until after the shop had been let for the first time in 1982. Yet, if Mr. Leung is to be believed, she must have met the plaintiff in Holland at least in 1981.\n63.\nThe defendant's mother certainly supported the defendant's case. She said she was responsible for buying the shop, and also a flat for Lam Bo, using money in her possession that is, the brothers' respective shares of the estate and, in relation to the defendant, Guilders 200,000 which he had provided. She said she arranged decoration of the shop and also its letting before the plaintiff came on the scene. Later, she advanced $270,000 to the plaintiff to purchase the flat.\n64.\nIt is, in my view, on that sum of $270,000 that her evidence finally founders. It was not until late in the defendant's cross-examination that this figure, a precise one, first occurred when the defendant said that he had repaid his mother $270,000 in two instalments, being $150,000 and $120,000, in mid 1994 out of rent collected from the shop. His mother gave evidence to the same effect. She had, however, made a witness statement on 4th August 1994 in which she said that she totally gave the plaintiff $297,000, the plaintiff having paid a deposit of $3,000. She made no mention of any repayment by the defendant. Given the explanation for the sum of $270,000, it is difficult to see why that amount only emerged so late in the case and why the defendant's mother should have referred to a different sum in her statement, a sum which she simply never mentioned at trial. It is no explanation that the mother is an old and illiterate lady. She was quite alert and quick to understand questions put to her. She had no difficulty in remembering figures, dates and other facts when it suited. With great reluctance, I find myself unable to accept her evidence.\n65.\nThe only witness called by the defendant who remained undamaged was his sister, Lam Yuk Wah. The importance of her evidence was that the plaintiff was not involved in the purchase, decoration or letting of the shop and that she first met the plaintiff in early 1982.\n66.\nFrom the plaintiff's evidence and her passport, the plaintiff returned to Hong Kong on 10th February 1982 to settle. She had, however, been in Hong Kong in June/July the previous year by when, there is no dispute, the plaintiff and the defendant were already cohabiting. It seems inconceivable that the plaintiff would not seek to assist the defendant in dealing with the shop even if the defendant had provided the finance, and that she would not have met the defendant's mother and sister at that time.\nEvaluation\n67.\nThe plaintiff was generally a composed witness who gave evidence of events spanning many years. Her account was an elaborate one. But it hung together and was not, as far as I could see, undermined in any significant or substantial way in a lengthy cross-examination. The dates, sequence of events and other details did not begin to unravel under persistent questioning as they would undoubtedly have done if the story was wholly contrived. The plaintiff's account was, however, exposed to all the criticisms which I have already set out. It is true that the sums which the plaintiff said she was able to save or derive from the sale of her restaurant were substantial, particularly when set against the background of her financial difficulty in Holland. Chinese people, however, have a well deserved reputation for hard work and thriftiness, particularly when working in another country. I see no reason why the plaintiff should not have been able to accumulate funds as the defendant said he did. Both parties said that they tried to avoid the attention of the tax authorities in Holland. The plaintiff is as likely as the defendant to have been anxious to repatriate hard-earned money. She would have had, I have no doubt, no scruples about putting a price lower than the real one in a contract and, I have no doubt, about depriving creditors of their full entitlement.\n68.\nIn all the circumstances, after accepting all the justified criticism of the plaintiff's evidence, in particular the complete lack of any documentation to support the financial aspect of it, I am satisfied that the plaintiff was giving an honest account of the financial transactions between her and the defendant. In relation to the shop, I find that the plaintiff did give the defendant Guilders 160,000 which was used as part of the purchase money for the shop. I infer from what passed between the parties at the time and from the plaintiff's activities in visiting the site and the shop generally that it was the intention of the parties that the plaintiff should have a beneficial interest in the shop. That beneficial interest, however, I find to be limited to her financial contribution. I am quite unable to accept that the somewhat loose cohabitation arrangement between the parties, the relatively short period during which the plaintiff looked after the defendant's son or any other activities on her part, somehow increased her contribution to an interest in the shop. Although pleaded, no evidence was led as to the exchange rate between the Dutch Guilder and Hong Kong dollar at the time. Unless the parties can, as they should, reach agreement upon the rate, I propose to order an enquiry for that purpose so that the correct percentage of the plaintiff's contribution can be assessed. Subject thereto, the plaintiff appears entitled to the relief which she seeks in relation to the shop.\n69.\nI also find that the plaintiff paid the whole of the purchase price of the flat. There can be no question in the circumstances but that it was intended that she should be the beneficial owner. Again, the plaintiff appears entitled to the relief which she seeks.\n70.\nI also find that the plaintiff loaned the sum of $50,000 to the defendant in 1987. She is entitled to the repayment of that sum.\n71.\nIn spite of Mr. Li's submission, I do not find that the plaintiff has departed from her pleaded case in relation to the loan of $200,000. Accepting, as I do, the plaintiff's evidence, the whole sum was obtained at the request of and made available to the defendant. How the defendant then decided to use the money was entirely a matter for him as long as he honoured the agreement to repay the loan which, in the event, he did not. Accordingly, I find the plaintiff entitled to the damages she seeks.\n72.\nThe plaintiff also seeks payment of her share of the rental income of the shop from 16th August 1987 onwards. In fact, the shop was let for three years from 1st September 1987 at a rent of $22,000 per month which continued until 1st November 1990 when, under a new agreement, the tenant paid $38,000 per month. Although that agreement expired in 1993 at the end of three years, the tenant has, according to the defendant, remained in the shop paying the same rent. There being no evidence to the contrary, apart from the plaintiff's suspicion, the proportion of rent payable to the plaintiff must be calculated on the basis of a rent of $38,000 still being payable. I leave it to the parties to work out the exact figure.\nDiscretion\n73.\nOn the assumption of all facts being found against him, Mr. Li fell back upon the principle that he who seeks equity must come with clean hands to receive it, a principle followed by the Court of Appeal in\nYim Bo Ying v. Chan Iu Warm\n(1985) HKLR 354\n. In that case, the defendant said that he had provided the purchase price but directed the conveyance into the name of the plaintiff to effect a saving in stamp duty. The Court of Appeal denied the defendant relief upon the basis that \"there is no resulting trust where it would be against public policy to permit the presumption\".\n74.\nMr. Li relied upon three matters. First, the second sum of Guilders 160,000 at least was brought by the plaintiff to Hong Kong to avoid the attention of the tax authorities. Second, the first sum of Guilders 160,000 was not, when it could have been, made available for payment of creditors in Holland. Third, the mis-statement of the sale price of the plaintiff's restaurant was apt to deceive both the tax authorities and the trustee. Therefore, said Mr. Li, the money contributed by the plaintiff was tainted money, the plaintiff should be denied the equitable relief which she seeks in relation to the shop and flat, and as the Court of Appeal said, \"the estate should lie where it falls\".\n75.\nMr. Poon drew my attention to Snells Equity, page 32 paragraph 6, where it is said : -\n\"The maxim must not be taken too widely; \"Equity does not demand that its suitors shall have led blameless lives\". What bars the claim is not a general depravity but one which has \"an immediate and necessary relation to the equity sued for,\" and it is not balanced by any mitigating factors.\"\n76.\nMr. Poon made two points. First, he said that, unlike the case with which the Court of Appeal was dealing, there was no direct connection between the taint, if it be a taint, affecting the plaintiff's money and the purchase of the shop and flat. Second, the plaintiff's activities were not tax evasion, as I was minded to describe them, but rather the not uncommon practice of a lay person who, having received money which he believes not to be taxable, keeps it secret in order to avoid becoming unnecessarily entangled with the tax authorities.\n77.\nI accept that, in Hong Kong at least, it is not necessary to declare to the tax authorities all sums of money of which a person is or becomes possessed. It seems to me, however, that if a business person seeks to hide substantial savings, the proper and adverse inference to be drawn is that they derived from some income or profit which itself has not fully been disclosed. I would think that a person, like the plaintiff, in business on his or her own account can have few illusions on that score. While what the plaintiff did may not have been tax evasion in its strict sense, it was certainly an evasion of the tax authorities. The same applies to the understatement of the price in the agreement for the sale of the restaurant. The money is plainly tainted.\n78.\nI accept that the taint attaching to the money has no direct connection with the use to which the money was ultimately put. There is, however, a plain connection in that the money affected by the taint was used for the purchase of and effectively has become the shop and flat. If the matters rested there, I would be inclined to deny the plaintiff the relief which she seeks in relation to these two premises.\n79.\nI take into account, however, that the defendant on his own evidence is not blameless in relation to the tax authorities in Holland. Further, the plaintiff has been hardly treated by the defendant in relation to these two premises. The manner in which the defendant has conducted these proceedings, in which he has not only denied any contribution at all on the part of the plaintiff but sought to deny any knowledge of her existence in what can only have been an attempt to try and avoid the loss of any interest in the shop, militates strongly against the defendant. In the circumstances, I am not prepared to deprive the plaintiff of the relief which she seeks.\n80.\nAccordingly, I give judgment for the plaintiff for declarations that the plaintiff is the sole beneficial owner of the flat and that the defendant holds the legal estate jointly with the plaintiff on trust for the plaintiff. I also order that the defendant transfer and vest the legal estate in the flat in the plaintiff.\n81.\nI grant declarations that the plaintiff is beneficial owner of the shop as to a percentage to be ascertained, and that the defendant holds the legal estate in the shop on trust for the plaintiff to that extent. I order that the defendant pay to the plaintiff her share or rental income from the shop calculated with effect from 1st September 1987. I am satisfied that, in principle, there should be an order for sale of the shop, the net proceeds of which are to be divided between the plaintiff and defendant, according to their respective entitlements. I will hear counsel on the precise terms of such an order if the terms cannot be agreed.\n82.\nThe defendant is to repay the plaintiff the sum of $50,000 being money lent.\n83.\nI award the plaintiff damages for breach of contract amounting to $75,262.07.\n84.\nI dismiss the counter claim.\n85.\nI make an order nisi that the plaintiff have the costs of the action.\n86.\nI will hear counsel further on the question of interest if this cannot be agreed.\n87.\nThere is to be liberty to apply.\n(N.J. Barnett)\nJudge of the High Court\nRepresentation:\nMr. J. Poon, inst'd by Leo K.W. Lok & Co. for Plaintiff\nMr. C.Y. Li, inst'd by Woo & Woo for Defendant", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/1992/HCA007670_1992.doc", + "file_name": "HCA007670_1992.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkcfi/2016_HKCFI_33/case.json b/en_cases_hkcfi/2016_HKCFI_33/case.json new file mode 100644 index 0000000..836dbf6 --- /dev/null +++ b/en_cases_hkcfi/2016_HKCFI_33/case.json @@ -0,0 +1,26 @@ +{ + "Date": "12 Jan, 2016", + "Action No.": "HCMP1588/2012", + "Neutral Cit.": "[2016] HKCFI 33", + "case_title": "BIRKENHEAD PROPERTIES AND INVESTMENTS LTD V. LAM KAI-MAN AND ANOTHER", + "page_title": "BIRKENHEAD PROPERTIES AND INVESTMENTS LTD V. LAM KAI-MAN AND ANOTHER | [2016] HKCFI 33 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "HCMP1588/2012", + "link": "https://www.hklii.hk/en/appealhistory/HCMP/2012/1588" + } + ], + "case_url": "https://www.hklii.hk/en/cases/hkcfi/2016/33", + "neutral_cit": "[2016] HKCFI 33", + "court_code": "HKCFI", + "content": "HCMP1588/2012 BIRKENHEAD PROPERTIES AND INVESTMENTS LTD v. LAM KAI-MAN AND ANOTHER\nHCMP 1588/2012\nIN THE HIGH COURT OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOURT OF FIRST INSTANCE\nMISCELLANEOUS PROCEEDINGS NO 1588 OF 2012\n___________________\nIN THE MATTER of all those pieces or parcels of ground registered in Land Registry as Lot No 769 (part) in Demarcation District No 99, Yuen Long, New Territories.\nand\nIN THE MATTER of\nOrder 113\nof\nthe Rules of the High Court\n__________________\nBETWEEN\nBIRKENHEAD PROPERTIES AND INVESTMENTS LIMITED\nPlaintiff\nand\nLAM KAI-MAN (林啟文)\n1\nst\nDefendant\nPERSON(S) IN OCCUPATION OF THE LAND\n2\nnd\nDefendant\n__________________\nBefore : Hon To J in Court\nDates of Hearing : 7 to 9 and 14 July 2015\nDate of Judgment : 12 January 2016\n______________\nJ U D G M E N T\n______________\nINTRODUCTION\n1.\nThis is an action for recovery of land by its registered owner, ie the Plaintiff against a squatter in possession. By an assignment dated 25 May 1978, the Plaintiff became the registered owner of a plot of land registered in the Land Registry as Lot No 769 (part) in Demarcation District No 99, Yuen Long, New Territories (the “\nPlaintiff’s Land\n”). It seeks to recover possession of a rectangular plot of land within the Plaintiff’s Land shaded in black in the amended statement of claim (the “\nArea\n”), which is also identified as a plot of land delineated by a pink line within the area shaded white in the Annex to the 1\nst\nDefendant’s amended defence and counterclaim (“\nArea Shaded White\n”). The Area falls entirely within the Area Shaded White. The western part of the Area Shaded White rests on a slope leading to a stream below. The slope is covered with vegetation. For identification purpose, that slope is referred to as the “\nMarshy Area\n”. The 2005 aerial photograph of the location which was taken when the vegetation on both sides of the slope above the stream had been cleared shows a clear view of the stream, the Marshy Area, and the Area Shaded White, including the Area which was occupied by vehicles and containers.\n2.\nOnly the 1\nst\nDefendant (“Lam”) entered appearance. No party entered appearance as the 2\nnd\nDefendant. On Lam’s case, he is the only person in exclusive possession of the Area Shaded White. This action is therefore one between the Plaintiff and the 1\nst\nDefendant only.\n3.\nLam’s defence is that well before March 1999 he had been and still is in continuous exclusive possession not only of the Area, claimed by the Plaintiff, but also the entire Area Shaded White including the Area and the Marshy Area; and he is counterclaiming adverse possession of the entire Area Shaded White against the Plaintiff. I have used different descriptions for the two areas in question which the parties just described as “the Area”, with the Plaintiff meaning the Area and Lam meaning the bigger Area Shaded White. Thus, Lam is counterclaiming more land against the Plaintiff than the Plaintiff is claiming against him.\n4.\nImmediately to the south of the Plaintiff’s Land is government land. There is an almost square plot of government land adjoining the Area Shaded White which is bounded on the western side by the stream, on the southern side by Castle Peak Road – San Tin Section and on the eastern side by containers and later, in addition, by a fence. For identification purpose, this plot of land is referred to as the “\nLeft Government Land\n”. There was, and still is, a temporary structure in the Left Government Land (“TS-1”). Between August 2004 and October 2005, an additional and much bigger temporary structure was erected immediately adjacent to TS-1 to the north within the Left Government Land (“TS-2”). Between October 2005 and December 2006, a second additional small structure was erected immediately adjacent to TS-2 further to the north in the Area (“TS-3”).\n5.\nAdjoining the Left Government Land on the east is another trapezium plot of government land which is bounded by the boundary of the Plaintiff’s Land on the north, Castle Peak Road on the south and the stream on the east and north-east. For identification purpose, that plot of government land is referred to as the “\nRight\nGovernment Land\n”. Inside the land was a temporary structure. The said stream runs in an anticlockwise direction along the eastern side of the Right Government Land to the north enclosing a small portion of the Plaintiff’s Land and then to the western side of the Area Shaded White.\n6.\nAccording to Lam, the Left Government Land, the Right Government Land and the Area Shaded White are collectively known as “No 100-B2, Mai Po Tsuen, San Tin, New Territories”, which he referred to as “the said Premises” in his defence and counterclaim (“\nNo 100-B2\n”). Across the road on the south side of Castle Peak Road and slightly to the east is another plot of land known as “No 100-B4, Mai Po Tsuen, San Tin, New Territories” (“\nNo 100-B4\n”). The vicinity, including No 100-B2, No 100-B4, some neighbouring building structures, a village, a school and a section of Castle Peak Road are collectively called “\nLot 105\n”. “Lot 105” has been used as the address for the residents in the vicinity for receiving mails which are delivered to and collected at the school. Thus, Lot 105 includes No 100-B2 and No 100-B4; No 100-B2 includes the Left Government Land, the Right Government Land, and the Area Shaded White; and the Area Shaded White includes the Area and the Marshy Area.\nThe applicable legal principles\n7.\nThe legal principles applicable to adverse possession are well established. Sections 7, 13 and 17 of the\nLimitation Ordinance\nprovide the statutory basis on which the case law developed. The relevant provisions under these sections are as follows:\n“7(2) No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person:\nProvided that, if the right of action first accrued to the Crown through whom the person bringing the action claims, the action may be brought at any time before the expiration of the period during which the action could have been brought by the Crown, or of 12 years from the date on which the right of action accrued to some person other than the Crown, whichever period first expires.\n13(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.\n(2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the Plaintiff’s Land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action shall be deemed to accrue unless and until the land is again taken in adverse possession.\n17 Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”\nIf a squatter is in adverse possession of land belonging to another, ie the paper title land owner, for a period of 12 years or more, the title of that other person shall be extinguished.\n8.\nThe legal principles applicable to adverse possession were usefully summarised by Slade J (as he then was) in\nPowell v McFarlane\n[1]\nwhich was approved by the English Court of Appeal in\nBuckinghamshire County Council v Moran\n[2]\n. Those principles were applied by the Court of Final Appeal in\nWong Tak Yue v Kung Kwok Wai David (No 2)\n[3]\n.\nThe following principles may be distilled from these authorities.\n9.\nExclusive possession is the bedrock of English land law. The starting point of land law is that in the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land. He is the person with the\nprima facie\nright to possession. A person seeking to establish title to land by adverse possession has to prove he has, in respect of that land and for a period of 12 years or more: (i) factual possession; (ii) intention to possess or\nanimus possidendi\n; and (iii) adverse possession.\n10.\nFactual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession. What acts constitute a sufficient degree of exclusive physical control depend on the circumstances, in particular the nature of the land in question and the manner in which land of that nature is commonly used or enjoyed. Everything depends on the particular circumstances. Broadly speaking, what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so:\nPowell v McFarlane\n[4]\n.\n11.\nIntention to possess or\nanimus possidendi\nis the intention to possess the land in one’s own name and on one’s own behalf, to the exclusion of the world at large, including the owner with the paper title so far as is reasonably practicable and so far as the process of the law will allow. In the case of a paper owner, the slightest act done in manifestation of his title is sufficient evidence of that intention which may negative intention to discontinue or abandon possession. By contrast, for a squatter, he has to make it perfectly plain to the world at large by his actions or words that he is enjoying the land openly as of right as if he is the rightful owner. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the court will treat him as not having had the requisite intention and consequently as not having dispossessed the owner:\nPowell v McFarlane\n[5]\n.\nAn intention to pay rent for the use of the land is plainly and completely inconsistent with the intention to possess.\nAs was pointed out by Nourse LJ in\nBuckinghamshire County Council v Moran\n[6]\n, adverse possession can be described as ‘possession as of wrong’. For the purpose of the\nLimitation Ordinance\n, it is the intention of the squatter that is essential. Further, it is not necessary for the squatter to establish an intention to own or even an intention to acquire ownership of the land:\nBuckinghamshire County Council v Moran\n[7]\n.\n12.\nAdverse possession means that the possession by the squatter must be adverse against the title of the paper owner. Possession is never adverse if it is enjoyed under a lawful title or with the permission of the paper owner:\nBuckinghamshire County Council v Moran\n[8]\n.\n13.\nThe burden of proof of these three requirements is on the squatter. The standard of proof is the civil standard. However, the burden is a heavy one. The squatter has to adduce objective and compelling evidence:\nPowell v McFarlane\n[9]\n.\nSelf serving evidence is hardly likely to be of assistance. The court will scrutinize such evidence with great care. The squatter’s evidence of his subjective intention will invariably be given no weight as being self serving evidence, but his statements against his interest will usually be accorded considerable weight. Objective evidence will be given such weight as they deserve.\nTHE PARTIES’ PLEADED CASE\n14.\nThe Plaintiff rests its case on its undisputed title to the Plaintiff’s Land. It has no factual witness. It relies on the evidence of its expert witness, Mr Chan of Ted Chan & Associates Limited (“the Plaintiff’s expert”). The Plaintiff’s expert gave opinion evidence about the development history of the Area and the surrounding land based on his interpretation of the archival survey sheets and aerial photographs taken by the Survey and Mapping Office of the Lands Department between 1986 and 2007.\n15.\nLam’s pleaded case of adverse possession is that he began non-exclusive possession of No 100-B2, ie the Area Shaded White, the Left Government Land and the Right Government Land, since 1988 or 1989 with the permission of a fellow villager, Mr Shea (“Shea”). Then, starting from 1995, his possession was exclusive.\n16.\nPrior to 1970, No 100-B2 was a barren piece of land with no inhabitants. It had been occupied by Shea who filled the fish ponds there and constructed two temporary structures to raise poultry and pigs. Lam is a motor mechanics by trade. In 1988 or 1989, he started operating a motor service company called “Chi Shing” at No 100-B4 on the south side of Castle Peak Road, opposite No 100-B2. No 100-B4 was and is his workshop, garage and residence. He used No 100-B2 across the road on the north side of Castle Peak Road as a storage area for tyres, vehicle parts, containers, trailers and tractors. His possession of No 100-B2 gradually turned exclusive in 1995 or 1996.\n17.\nHis further and alternative case is that on 5 February 1999, by a handwritten agreement (the “1999 Agreement”), Lam and a Mr Siu (“Siu”) purchased the Left Government Land, the Right Government Land and the two temporary structures thereon from Shea. But his evidence relating to the subject matter of sale under the 1999 Agreement is ambiguous. In his evidence in chief, he said that the agreement only concerned the two temporary structures. Under cross-examination, he said it was about the sale and purchase of Lot 105, including the Area Shaded White. In re-examination, he said the agreement was about sale and purchase of the Left Government Land and the Right Government Land only. Whatever the subject matter of the sale under the 1999 Agreement, as between Lam and Siu, they divided whatever was purchased so that Lam had exclusive possession of the Left Government Land and the Area Shaded White, while Siu had exclusive possession of the Right Government Land. Then in March 1999, Lam applied to China Light and Power Limited for electricity supply. An electricity meter was subsequently installed on the Left Government Land near Castle Peak Road which supplied electricity to No 100-B2. Lam asserted, in the alternative, that since 5 February 1999 his possession of No 100-B2 was exclusive.\n18.\nThus, Lam’s primary pleaded case is that he started with non-exclusive possession of No 100-B2 in 1988 or 1989 and then he displaced Shea in 1995 or 1996 and acquired exclusive possession of No 100-B2, including the Area Shaded White. His further and alternative case is that in 1999 he and Siu bought out Shea and divided whatever they had purchased among themselves so that he has exclusive possession of the Left Government Land and the Area Shaded White. The two cases are inconsistent. His possession prior to February 1999 could not have been exclusive and adverse as his purchase under the 1999 Agreement was an acknowledgment that his possession of the land was with Shea’s permission. That is beside the point. As the Plaintiff commenced action on 1 August 2000, what Lam needs to prove is adverse possession against the Plaintiff since 31 July 2000.\n19.\nLam gave evidence as a factual witness and adduced expert opinion from Mr Joseph Wong of Land Marker (1980) HK Co Ltd (“the Defendant’s expert”) on interpretation of the survey sheets and aerial photographs.\n20.\nMr Cheung, counsel for the 1\nst\nDefendant, criticises the Plaintiff for pleading no positive case and for calling no factual witnesses. But, in all fairness to the Plaintiff, it does not have to. It is entitled to rely on its paper title, as the burden is on the squatter to prove adverse possession. It may test the squatter’s case and is entitled to judgment if the squatter fails to discharge the very high burden of proof. That precisely is what Mr Chan is seeking to achieve. He attacks Lam’s credibility based on certain aspects of his evidence; the 1999 Agreement; the alignment of the vehicles parked on the Area Shaded White and the surrounding land; the paving pattern of the Area Shaded White and the surrounding land; and Lam’s attitude towards the application by a third party, namely Mr Yip (“Yip”), in relation to the use of the Left Government Land and part of the Area. Mr Chan’s hypothesis underlying these attacks is that although Lam had exclusive possession of part of the Area Shaded White including the Area at the time of commencement of the action, he did not have exclusive possession prior to 31 July 2000. His hypothesis is that previously Siu had possession of the Area up to 2005; and after that Lam took over the Area when Siu vacated it and the Right Government Land. There is no need for Mr Chan to prove his hypothesis as the burden of proving adverse possession is on Lam. What Mr Chan seeks to do by his hypothesis is to cast doubt on Lam’s evidence so as to tilt the balance against him. Mr Chan does not dispute whether Lam had exclusive possession of the Left Government Land, which is irrelevant as far as the Plaintiff is concerned.\nTHE EVIDENCE\n21.\nThe evidence in this case comprises of Lam’s evidence on the factual issues and documents in support; the aerial photographs and survey sheets prepared by the Lands Department; and the parties’ expert evidence on the interpretation of these photographs and survey sheets.\n22.\nLam’s own evidence on these factual issues has to be cautiously scrutinised as being self-serving. He has no other factual witnesses. The only sources of objective evidence are the aerial photographs, survey sheets and the experts’ interpretation of those photographs and survey sheets. Great caution has to be exercised in examining and interpreting these exhibits. The aerial photographs were taken from a far distance. Objects placed underneath the umbrellas formed by trees and shrubs cannot be revealed on the photographs. Likewise, fences may be concealed by vegetation overgrowing on them. Though the survey sheets are produced annually, the experts agree that they only contain partial updates. That an item shown in the survey sheet in the previous years which is not shown in a later year does not necessarily mean it ceased to exist in that later year. It could have ceased to exist earlier but the change was not updated on the survey sheet. Likewise, an item shown to exist for the first time in a survey sheet might have existed earlier. These photographs and survey sheets have to be examined together and considered as a whole. Lam’s evidence would have to be tested against these aerial photographs and survey sheets.\n23.\nWith exception of those for the years 1989, 1990, 1992, 1994, 1995 and 1997, aerial photographs from 1986 to 2013 have been produced in court. The photographs for those six missing years are not produced because the Plaintiff’s expert found no material change in those photographs from what is depicted in the preceding year. That is not disputed by the Defendant’s expert.\n24.\nLam produced a number of exhibits, including the deposit advice for electricity supply from China Light and Power Limited, notice of insurance for employees’ compensation in respect of employees in his business, and business registration certificates etc. Invariably the address of his business stated in those exhibits are “Lot 105” and not referable to Lot 769 or the Area Shaded White or No 100-B2. Mr Chan, counsel for the Plaintiff, argues that those exhibits do not support Lam’s case. With respect, I disagree. The non-controversial fact that an electricity meter was installed on the Left Government Land which supplies electricity to the Left Government Land and the Area Shaded White is sufficient to connect those exhibits to the Area Shaded White. On the basis of those exhibits, I think there can be no dispute that Lam has been in physical possession of the Left Government Land and the Area Shaded White or part of it. The real controversies are: since when has he been in exclusive possession of which parts of the Area Shaded White; whether he has\nanimus possidendi\n; and whether the possession was adverse.\n25.\nThe dispute in this case is entirely factual. The squatter bears the burden of proof. The outcome of this trial depends heavily on my finding of Lam’s credibility. Mr Chan’s attack on Lam’s case and his credibility will be analyzed in turn.\nLam’s admission of being partially untruthful\n26.\nWhen cross-examining Lam about Yip’s Town Planning Application to use the Left Government Land and part of the Area, Mr Chan put to Lam that he had not been truthful in his evidence (不盡不實). To that, Lam replied some was true but some was not (有啲實,有啲唔實). Based on that answer, Mr Chan suggests that Lam was not a truthful witness.\n27.\nLam did not appear to me to be a person of sophistication. He appeared confuse when answering some of the questions put to him in cross-examination and he answered that he did not know what to say or explain. Those answers referred to by Mr Chan were given in the context of Mr Chan’s questions about his knowledge of Yip’s application. Lam said he knew about the application but was wavering in his answer about the purpose of the application. He said he did not know the details except that government wanted to demolish the temporary structure (it is not clear whether he meant TS-1, TS-2 or TS-3 or all of them). I think he was just confused. In re-examination, he affirmed that he had told the court the whole truth. Ironically, an admission that one is partially truthful appears to be an honest answer which would boost one’s credibility, whereas an answer which asserts one’s truthfulness is self-serving and may not be truthful. I draw no adverse inference on his credibility based on those answers in cross-examination. In any event, I give no weight to Lam’s answers in relation to this Town Planning Application which was made in 2015. It has no bearing to Lam’s intention in 2012.\nThe 1999 Agreement\n28.\nIn answer to the Plaintiff’s request for further and better particulars, Lam brought up an oral agreement between him and Shea for the use of the Area Shaded White, the Left Government Land and the Right Government Land, which was later reduced into writing, ie the 1999 Agreement. The agreement reads as follows:\n“立約人\n甲方\n佘常光\n乙方\n林啟文、蕭樹棠\n甲方將地段DD105，官地牌照2064，將這官地上之物業借用於乙方使用，由一九九九年二月四日開始，費用弍拾捌萬元正。\n這官地日後若政府收地發展，或其他關於此地的爭議與甲方無關，但若政府收地則需交還給政府。\n恐口講無憑，立此為據，一式三份。\n甲方簽名\n佘常光\n身份証\nxxxxxxx(x)\n乙方簽名\n林啟文 蕭樹棠\n身份証\nxxxxxxx(x)\n身份証\nxxxxxxx(x)\n乙方簽名\n見證人簽名\n劉秀鳳\n身份証\nxxxxxxx(x)\n日期 一九九九年二月五日”\nTranslation:\n“ Parties to the Contract:\nParty A - Shea Sheung Kwong（佘常光）\nParty B - Lam Kai Man（林啟文）, Siu Shu Tong（蕭樹棠）\nParty A shall let Party B borrow the landed property situated on government land of lot no. DD105 (government land license no. 2064) for their use. It shall begin on 4 February 1999. The fee is Two Hundred and Eighty Thousand Dollars only.\nIf in future the government resumes the land for development or if any dispute arises over the land, it shall have nothing to do with Party A, but if the land is to be resumed by the government, it shall be returned to the government.\nFor fear that there is no evidence of what has been said verbally, this is made as proof and is made in triplicate.\nSignature of Party A:\nShea Sheung Kwong\nidentity card no.: xxxxxxx(x)\nSignature of Party B:\nLam Kai Man,\nidentity card no.: xxxxxxx(x)\nSiu Shu Tong\nidentity card no.: xxxxxxx(x)\nSignature by witness:\nLau Sau Fung\nidentity card no.: xxxxxxx(x)\nDate: 5 February 1999”\n29.\nIt is not entirely clear what reliance Lam sought to place on the 1999 Agreement. It is his case that he gradually acquired exclusive possession of No 100-B2 in 1995 or 1996. It appears to be his further or alternative case in his answer to the Plaintiff’s request for further and better particulars that he bought No 100-B2, which included the Area Shaded White and the Left Government Land (but not including the Right Government Land) from Shea on 5 February 1999 and acquired exclusive possession of the Area Shaded White since that date. That is inconsistent with his case of exclusive possession of No 100-B2 since 1995 or 1996 as his possession before 5 February 1999 must have been with Shea’s permission.\n30.\nWhatever was the first date of his exclusive possession of No 100-B2, the problem with his reliance on the 1999 Agreement is that it referred to the sale and purchase of “DD 105”, “Government licence no 2064” and the “the landed property situated on government land”. It is not referable to No 100-B2 or Lot 769. But even assuming for some unknown reasons, such as a former system of land identification, that “DD 105” referred to No 100-B2 and/or Lot 769, the subject matter of sale referred to in the 1999 Agreement was a “borrowing” of “the landed property on the said government land”, ie a licence for the use of government land. It bears no reference whatever to the Plaintiff’s Land. On the first day of trial, Lam sought to explain that the 1999 Agreement was for the sale and purchase of No 100-B2; that Shea mis-described the subject matter of sale and purchase for not knowing exactly which part was government land; and that “Government licence” referred to a farming licence. On the second day of trial, when he was re-examined, Lam changed his evidence and asserted that the 1999 Agreement was for sale and purchase of the Left Government Land and Right Government Land only. That evidence rendered the 1999 Agreement absolutely useless to Lam’s case, save for the purpose of setting out the background at the time of his alleged occupation of the Area Shaded White.\n31.\nLam’s testimony about the 1999 Agreement served no useful purpose for him. It only showed him as a wavering witness who changed his evidence and his case in the witness box. He has not made up his mind what his case is before he pleaded his defence, reflecting an absence of a\nbona fide\ndefence. His evidence has also damaged his credibility as a witness.\n32.\nMr Chan disputes the authenticity of the 1999 Agreement. I do not find it necessary to debate on this point. On Lam’s own case, the subject matter of the 1999 Agreement was sale and purchase of a landed property on government land or assignment of a farming licence. The 1999 Agreement has no effect of conferring title to the Area Shaded White. It has no bearing on Lam’s case of adverse possession against the Plaintiff.\nLam’s occupation of No 100-B2 since 1988 to 1989\n33.\nIn his witness statement, his amended defence, answers to further and better particulars and his testimony in court, Lam asserted that he began a vehicle repair business in 1988 to 1989 and since then has been using both No 100-B2 and No 100-B4 and not just the latter. However, the aerial photographs of 1988, 1991 and 1993 show no sign of activity in or use of the type in the land as alleged by Lam at all. In the 1991 photograph, two lorries were shown parked outside the temporary structures, presumably in connection with Shea’s use of the land for raising poultry and pigs. The first sign of use of the Left Government Land and Right Government Land in connection with Lam’s alleged purpose of storage appeared in the 1996 photograph.\n34.\nThe disparity between Lam’s evidence and the photographs may be due to failure of his memory or deliberate exaggeration. Since he applied for and obtained electricity supply in 1999, which must be a landmark event in his business and occupation of that large plot of land, he could not have been mistaken if he had been occupying and using the land for eleven years without electricity supply. For this reason, I rule out the possibility of an honest mistake. While the 1996 photograph supports Lam’s case of his possession of the Left Government Land since 1996, it discredits him insofar as his evidence about using the land since 1988 is concerned. Such unnecessary exaggeration only served to discredit him.\nLam’s occupation of the Right Government Land between 1988 and 1996\n35.\nIn the course of his evidence, Lam asserted that he had occupied the Right Government Land since 1988 to 1989 along with his occupation of the Left Government Land. He said he jointly used the Right Government Land with Siu until when they entered into the 1999 Agreement with Shea. This is a first time assertion not contained in his pleading or witness statement. He explained its absence for the simple reason that he thought it unimportant. The first sign of occupation and use of the Left Government Land and Right Government Land only manifested itself in the 1996 photograph. Regardless of whether that explanation is true or not, for reasons as explained in paragraphs 33 and 34 above, the assertion is a deliberate exaggeration which is simply untrue. This exaggeration again unnecessarily damaged his credibility.\nThe existence of a fence separating the Area Shaded White and the Left Government Land\n36.\nIt is Lam’s evidence under cross-examination that there was no fence separating the Left Government Land from the Area Shaded White. However, the aerial photographs from 1986 to 1996 show a peculiar feature suggesting the presence of a divider between the two plots of land which ran more or less along the boundary of the Plaintiff’s Land and the Left Government Land. That divider deviated from the boundary in the Right Government Land as it approached the stream. The Defendant’s expert agreed under cross-examination that the divider was possibly a fence covered by overgrowing vegetation. The divider is particularly obvious in the 1991 photograph (which is larger) and in the 1993 coloured photograph. The eastern and north-eastern part of the divider is still very obvious in the 1996 photograph. The northern part of the divider is inconspicuous, probably hidden under the umbrellas of trees. I have no difficulties accepting the Defendant’s expert’s opinion. If Lam had possession of the Area Shaded White as early as 1989 as he alleged, he could not have failed to see the fence at least during the seven or eight years between then and 1996. The 1993 photograph shows no activity of the sort suggested by Lam. There was not a vehicle shown in the photograph. There was only a container by TS-1, which according to Lam was used by Shea for raising poultry. I have not the slightest doubt that Lam did not have possession of the Left Government Land or the Area Shaded White before 1993. Though this aspect of his evidence does no damage to his case, it dented his credibility.\nLam’s paving of the Area\n37.\nIt is Lam’s evidence that he paved the Area. Mr Chan tested that assertion by referring to the absence of paving between the Area which was paved and an adjacent unpaved strip in between that Area and the Left Government Land (“the Unpaved Strip”); and the pattern of paving on the Right Government Land. Mr Chan’s hypothesis is that the Area was paved by Siu who extended his occupation from the Right Government Land to the north into the Plaintiff’s Land and then to the west into the Area thereby touching on the northern side of the Left Government Land occupied by Lam.\n38.\nThe only reason offered by Lam for not paving the Unpaved Strip is that he cleared the vegetation and paved the land bit by bit as he was afraid he would be sued. That is an explanation which is difficult to accept. The 1998 photograph as compared with the 1996 photograph shows that Lam had paved a substantial part of the Left Government Land. The 1999 photograph as compared with the 1998 photograph shows that he paved the entirety of, if not beyond, the Left Government Land. He could not have been concerned about the risk of being sued for paving that small Unpaved Strip of land. I do not accept his explanation.\n39.\nThis Unpaved Strip is used by Mr Chan to advance his hypothesis that it was Siu who first paved and occupied the Area. There is a lot of evidence supportive of that hypothesis. Viewing these aerial photographs from 1993 to 2000 chronologically in that order, one can see how the paved area “grew” over those years. Prior to 1996 (as shown by the 1993 photograph), the Left Government Land and Right Government Land were covered by vegetation. The space between the two temporary structures was somewhat barren, which was probably caused by movement of vehicles accessing the two temporary structures.\n40.\nThe 1996 photograph shows that most of the space between the two temporary structures and much of the Right Government Land was paved. The common entrance to the two lots of government land from Castle Peak Road was also paved. TS-1 in the Left Government Land was built near to the boundary with the Right Government Land. A lot more vehicles were placed on the Right Government Land than on the Left Government Land. On the basis of Lam’s evidence that he and Siu used the two lots of government land jointly, who actually paved the Left Government Land and the Right Government Land is immaterial.\n41.\nThe 1998 photograph shows more extensive paving on both lots of government land.\n42.\nThe March 1999 photograph shows for the first time a paved area in the Plaintiff’s Land to the north of the Right Government Land. By reference to the position of TS-1 on the Left Government Land, the other temporary structures on the Right Government Land and the survey sheets, it is obvious that newly paved area (the “First Paved Area”) was within the Plaintiff’s Land outside the Area Shaded White. The photograph also shows some containers placed between the two temporary structures serving as a partial divider between the Left Government Land and the Right Government Land leaving an opening to be used as access to the Right Government Land via the common entrance at Castle Peak Road. It is significant that it is Lam’s evidence that he and Siu bought the two lots of government land in February 1999 and thereafter he used the Left Government Land exclusively and Siu used the Right Government Land exclusively. On the basis of that evidence, the irresistible inference is that it was Siu who paved the First Paved Area as an extension from the Right Government Land because Lam could not access the First Paved Area from the Left Government Land. If Lam were to encroach more of the Plaintiff’s Land, it would have been more convenient for him to clear the vegetation on the Unpaved Strip and begin paving from there into the Area, instead of first paving the First Paved Area and then the Area, leaving the Unpaved Strip unpaved as is shown by the March 1999 photograph.\n43.\nThe August 2000 photograph is of critical importance. It shows more paving extending from the First Paved Area to the west into the Area, which was to the north of TS-1 on the Left Government Land, with the Unpaved Strip separating the now paved Area from the Left Government Land. There were a lot of vehicles placed on that Unpaved Strip, serving as if it were a divider between the now paved Area and the Left Government Land, blocking access to the now paved Area from the Left Government Land. The containers between the two temporary structures were re-positioned to provide a complete divider between the two lots of government land. The photograph also shows for the first time a separate entrance to the Right Government Land from Castle Peak Road. From the 1999 and 2000 photographs, Lam’s agreement with Siu on their exclusive use of the respective lots of government land, the Unpaved Strip and divider formed by the vehicles placed on it, the repositioning of the containers between the two temporary structures and the new and separate entrance to the Right Government Land from Castle Peak Road, the irresistible inference is that by 9 August 2000 Lam and Siu achieved total segregation between the two lots of government land; and that the First Paved Area and then the Area and the entire Area Shaded White were paved by Siu as part of his expanded occupation of the Right Government Land. The 9 August 2000 photograph shows conclusively that Lam did not and could not have exclusive possession of the Area or any part of the Area Shaded White.\n44.\nI now jump to the 2005 and 2006 photographs. The 2006 photograph shows that the Right Government Land and the First Paved Area in the Plaintiff’s Land were vacant and unoccupied. The vehicles which were shown there in the 2005 photograph disappeared. These two photographs show that between October 2005 and December 2006 Siu vacated the Right Government Land and the First Paved Area. If Lam was the one who paved and occupied the First Paved Area, there was no reason why that area was abandoned when Siu vacated the Right Government Land. These facts fortify the inference that Siu was the one who paved and occupied the First Paved Area and then further paved and occupied the Area Shaded White between 1999 and 2000. The further inference that may reasonably be drawn is that after Siu vacated, Lam conveniently fenced off the eastern access to the Area which he was then occupying from the rest of the Plaintiff’s Land. Lam’s exclusive occupation of the Area commenced at the earliest in October 2005.\nThe alignment of vehicles in the Unpaved Strip and access to the Area in 2000 and 2001\n45.\nMr Chan refers to the vehicles placed on the Unpaved Strip in 2000 and 2001 and their alignment which blocked access to the Area from the Left Government Land. He argues that Lam could not access the Area except through the Right Government Land, therefore suggesting that Lam did not have possession of the Area. Lam denied. Lam explained that he used a crane to lift vehicles over the blockage. He also identified a lorry with crane in the 2001 photograph parked in a east-west direction in the Area to support his assertion. I think that answer artificial and wholly incredible having regard to the width of the blockage created by the vehicles placed on the Unpaved Strip, the fact that the vehicles were stacked one on top of another and the size of the crane on the craned lorry. The 2000 and 2001 photographs suggest that the newly paved Area was an extension paved by Siu; occupied and used exclusively by him; and that Lam did not have possession of the Area Shaded White before 9 August 2000.\nThe 2002 to 2007 photographs\n46.\nThe above finding is sufficient to dispose of this action. However, for completeness, I now turn to the subsequent photographs.\n47.\nThe May 2002 photograph shows that the Unpaved Strip had been cleared of vegetation and was paved. The vehicles placed on the Unpaved Strip which formed a divider between the Area Shaded White and the Left Government Land disappeared. The vehicles in the Left Government Land were re-aligned and encroached on the Area. Some of the vehicles were accessible from the Left Government Land. This is the first sign of Lam’s occupation of part of the Area Shaded White. But there was no such sign of occupation in the March 2001 photograph. The change was very substantial. It involved re-alignment of almost all the vehicles in the Left Government Land and in part of the Area Shaded White. The photograph suggests that Lam may have possession of the Area Shaded White or part of it. But at the highest, what these two photographs and those thereafter show is a case of use by two squatters, neither of whom has any exclusivity from a date between 1 March 2001 and 8 May 2002 to 2005. Even on this scenario, Lam would fail to prove adverse possession for 12 years, let alone this is not his case.\n48.\nIt is worth noting that the 2002 survey sheet shows for the first time an inverted “L” temporary structure on the Right Government Land. This structure appeared for the first time in the 2001 photograph.\n49.\nThe 2003 survey sheet shows for the first time a fence erected from the above mentioned inverted “L” temporary structure along the boundary between the Left Government Land and the Right Government Land to the boundary between the Plaintiff’s Land the Right Government Land. This fence is not shown on the 2002 survey sheet when the inverted “L” temporary structure was first marked on the survey sheet, suggesting that the fence was erected between 2002 and 2003. It is not known who erected that fence. But the significance is that whoever erected it preserved the access from the Right Government Land to the newly paved Area. This suggests that it was Siu who had occupation and possession of the newly paved Area since 1999 at least until May 2002.\n50.\nThe August 2004 photograph shows more encroachment on the Area by Lam.\n51.\nThe October 2005 photograph shows clear encroachment by Lam on the Area. The vegetation on the Area Shaded White was cleared. The stream in the northern and north-western side of the Area Shaded White and the surrounding area is clearly visible. The photograph shows for the first time a new temporary structure to the north of and immediately adjacent to TS-1, namely TS-2. It is about three times as large as TS-1. Judging from its relative position with TS-1 and the stream, TS-2 is well within the Left Government Land. The clearance of the vegetation in the Area Shaded White and the paving of the Area coupled with the erection of TS-2, albeit in government land, and the use of the Area and the Left Government Land for storage of vehicles by Lam were exercise of rights of ownership. Lam has clear occupation and use of the Area as if he were the owner.\n52.\nThe December 2006 photograph shows complete encroachment of the Area by Lam and a second temporary structure, namely TS-3, was erected in the Area immediately adjacent to and to the north of TS-2. Another remarkable event shown by this photograph is that all the structures and vehicles on the Right Government Land and the First Paved Area were removed. Clearly, Siu had vacated the Right Government Land and the First Paved Area; and Lam was in exclusive possession of the Left Government Land, the Area and possibly some other part in the Area Shaded White. But, such exclusive possession fell well outside the critical date.\n53.\nThe 2008 survey sheet shows that a fence was erected to close the access from the Right Government Land to the Area. It might have been erected by Lam in the exercise of his possessory right over the Area or by Government.\nThe Marshy Area\n54.\nLam asserted that he also had possession of the Marshy Area. He insisted that he had dumped scrapped cars and vehicle parts there or into the stream for storage and retrieved them for sale when market was available and price was right. His assertion is flatly contradicted by the joint expert opinion that the Marshy Area had never been occupied. The experts were instructed to give expert opinion on this specific issue of adverse possession. They had been to the site to make observation and comment as experts. The Plaintiff’s expert confirmed that he saw no sign of occupation throughout the years and the Defendant’s expert agreed.\n55.\nOn the photographs, I can see no sign of such occupation. The 2005 photograph is particularly useful for this purpose as the vegetation along both sides of the stream had been cleared. I cannot see any large objects in the Marshy Area. Though engines and small vehicle parts may be too small to be visible on the photograph, there is no reason not to trust the experts’ evidence. Furthermore, it is also a matter of credibility. It is simply incredible to throw metal objects into the stream for storage. The metal objects would turn rusty and reduce their saleable value. It may be easy to dump the objects into the stream from the slope but it may be very difficult to examine them and retrieve them when needed. In the light of his dented credibility, the agreed expert opinion and on the face of the photographs, I do not accept Lam’s evidence. He has failed to prove possession of the Marshy Area throughout the years. Accordingly, I accept the expert’s opinion and reject Lam’s evidence that he had ever used or occupied the Marshy Area.\nPhysical possession of the Area and the Area Shaded White\n56.\nHaving analysed the various aspects of the evidence, I now turn to the crucial issue. The burden of proving adverse possession is on the squatter, ie Lam. He has to prove he has uninterrupted exclusive possession of the Area Shaded White or such part of it for a period of 12 years commencing on 31 July 2000;\nanimus possidendi\n; and that his possession is adverse to the Plaintiff. However, he has proven himself to be an exaggerating and incredible witness. While the attacks on his credibility are mainly based on events before the crucial date, these attacks nevertheless have an adverse effect on his credibility which may impact on his case.\n57.\nLam’s continued occupation of the Left Government Land since March 1999 cannot be disputed. As the aerial photographs show, the first sign of occupation of the Plaintiff’s Land by a squatter appeared between May 1998 and March 1999. The encroachment was at a location east of the Area, ie the First Paved Area. As shown by the 9 August 2000 photograph, by that time the encroachment has extended into the Area and possibly into part of the Area Shaded White outside the Area. The Plaintiff commenced action on 31 July 2012. The critical date is therefore 31 July 2000. The crucial question is whether Lam was in possession of the Area or the Area Shaded White since 31 July 2000.\n58.\nTo answer that question, I start with the 1999 Agreement, the March 1999 photograph and Lam’s own evidence that since February 1999 he was in exclusive possession of the Left Government Land and Siu was in exclusive possession of the Right Government Land. As the March 1999 photograph shows, the encroachment on the Plaintiff’s Land started from the First Paved Area, which is outside the Area Shaded White and immediately to the north of the Right Government Land occupied by Siu. By 9 August 2000, the Left Government Land was completely segregated from the Right Government Land. By that time, the paving and occupation of the First Paved Area had extended into the Area and possibly the entire Area Shaded White. The August 2000 and March 2001 photographs show the Right Government Land, the First Paved Area, the Area and the rest of the Area Shaded White except the Marshy Area as one continuous stretch of land accessible from the entrance to the Right Government Land from Castle Peak Road. It also shows a divider between the Left Government Land and the Area Shaded White formed by rows and stacks of vehicles placed on the Unpaved Strip. Having found Lam incredible and rejected his evidence, the irresistible inference which could be drawn from these photographs and the surrounding circumstances is that the First Paved Area, the Area and the rest of the Area Shaded White except the Marshy Area were paved and occupied by Siu as part of his extension from the Right Government Land before 9 August 2000. In other words, Lam did not and could not have exclusive possession of the Area Shaded White or any part of it since 31 July 2000: see paragraphs 37-43,\nante\n. This is fatal to his defence.\n59.\nThe first signs of any occupation of the Plaintiff’s Land by Lam are only found in the 8 May 2002 photograph which shows a re-alignment of the vehicles in the Left Government Land encroaching slightly into part of the Area Shaded White, which may or may not include the Area. There was no such sign of occupation in the 1 March 2001 photograph. Even assuming an overnight change, possession since 2 March 2001 is more than seven months short of the twelve-year period.\n60.\nAs shown in the 25 December 2006 photograph, Siu vacated or abandoned his occupation of the Right Government Land and part of the Plaintiff’s Land altogether between 25 October 2005 and 25 December 2006. The alignment of the vehicles on the Left Government Land, Right Government Land, the Area and possibly part of the Area Shaded White as shown in the 2004 to 2006 photographs have changed in such a way as to suggest that Siu had “ceded” the Area which he had paved and occupied to Lam. These two photographs also show that TS-3 was erected in the Area between 25 October 2005 and 25 December 2006. This evidence supports Lam’s possession of the Area and part of the Area Shaded White. Lam said he had occupied the Marshy Area by throwing vehicle parts into the slope and the stream. But the October 2005 photograph shows no sign of any occupation of the Marshy Area. For reasons as explained in paragraphs 54 and 55, I reject such evidence.\n61.\nIn summary, my findings are as follow. Lam and Siu began occupation of the Left Government Land and Right Government Land respectively before 1998. After obtaining metered electricity supply in 1999, their occupation became more extensive. They paved the Left Government Land and Right Government Land with concrete. Between March 1999 and August 2000, Siu started encroaching into the Plaintiff’s Land to the north. He commenced paving the First Paved Area to the north and then almost the entirety of the Area Shaded White to the west, except the Marshy Area. These areas were separated from the Left Government Land by an Unpaved Strip and rows of cars placed on that Unpaved Strip. They were occupied by Siu to the exclusion of Lam. Between 1 March 2001 and 8 May 2002, Lam extended his occupation into the Area Shaded White, but not the Marshy Area. The vegetation on the Unpaved Strip and the vehicles on it separating the Left Government Land from the Area Shaded White were removed. The vehicles were re-aligned and occupied part of the Area Shaded White. Probably, sometime between 1 March 2001 and 8 May 2002, Lam commenced possession of part of the Area Shaded White, either exclusively or jointly with Siu. Between October 2005 and December 2006, Lam erected TS-3 in the Area. At about the same time, Siu vacated the Right Government Land and abandoned his possession of the First Paved Area. Then Lam continued possession of part of the Area Shaded White and took over possession of other parts of the Area Shaded White previously occupied by Siu and fenced it off from the First Paved Area. As the 2005 photograph shows and as confirmed by the parties’ expert, Lam never had possession of the Marshy Area.\n62.\nLam’s pleaded case is that he solely has exclusive possession of the Area Shaded White from 2000 (and before) to 2012. It is not his case that he was in joint possession with Siu for part of the time and then claims through this joint possession between 2000 and 2001 and then his sole exclusive possession thereafter. Another possibility is that Siu had allowed Lam to use part of the Area Shaded White which Siu paved and controlled. Neither of these is the case Lam pleaded. Lam bears the burden of proving adverse possession. The burden could only be discharged with cogent and convincing evidence. Unfortunately, he has failed to show by convincing evidence that he had possession of any part of the Area Shaded White on or before 31 July 2000.\nExclusive possession of the Area and Area Shaded White and animus possidendi\n63.\nAs Lam has failed to establish possession of the Area and the Area Shaded White for a continuous period of 12 years, there is no need to consider whether he has\nanimus possidendi\nand whether his possession is adverse. If I have to make a finding in respect of these two issues, I would have no difficulties to find in Lam’s favour. The Area and the Area Shaded White (except the Marshy Area) together with the Left Government Land occupied by Lam were enclosed to the east by a divider made of vehicles and containers, to the south by a fence at Castle Peak Road, and to the west and the north by vehicles and containers physically placed on the Area and Area Shaded White forming a single lot of land. The northern and western boundary of this plot of land rests on elevated ground such that the enclosed plot of land is separated from the rest of the Plaintiff’s Land by the Marshy Area which covers the slope and by the stream making access to the Area Shaded White difficult. This plot of land could only be conveniently accessed through the gate from Castle Peak Road with the permission of Lam. This isolated plot of the Plaintiff’s Land and the Left Government Land were paved. Three temporary structures were erected there in connection with Lam’s use and enjoyment of the land for storage purpose. Having regard to the use to which the land was put, the nature of the objects placed there in occupation of the land, the inference could readily be drawn that Lam had exclusive possession of the Area Shaded White except the Marshy Area and the intention to exclude others from it. Lam did not pay any rent for the use of the Area Shaded White and did not seek the Plaintiff’s permission for his use of the land. He even challenged the Plaintiff’s title. Such possession is clearly adverse to the Plaintiff.\nCONCLUSION\n64.\nIn conclusion, I find that although Lam has exclusive possession of the Area Shaded White except the Marshy Area, the necessary\nanimus possidendi\nand that such possession is adverse to the Plaintiff, his possession fell short of the 12 years period required to extinguish the Plaintiff’s title to the land. His defence has to be dismissed. Accordingly, I enter judgment for the Plaintiff. I make an order that:\n(1) judgment for possession of the Area Shaded White be entered against the 1\nst\nand 2\nnd\nDefendants;\n(2) the 1\nst\nDefendant’s counterclaim be dismissed; and\n(3) the 1\nst\nDefendant to pay the Plaintiff’s costs of this action, with certificate for two counsel, to be taxed if not agreed.\nThe Plaintiff has abandoned its other claims.\n( Anthony To )\nJudge of the Court of First Instance\nHigh Court\nMr Chan Chi-hung, SC and Mr Liu Cheong Wang, Jerome, instructed by Messrs \n\tKao, Lee & Yip, for the Plaintiff\nMr Lawrence Cheung and Mr Patrick S L Wong, instructed by Messrs LCP for \n\tthe 1\nst\nDefendant\nThe 2\nnd\nDefendant was not represented and did not appear\n[1]\n(1979) 38 P and CR 452\n[2]\n[1990]\n1 Ch 623\n[3]\n(1997-1998) 1 HKCFAR 55\n[4]\n(1979) 38 P and CR 452\n[5]\n(1979) 38 P and CR 452\n[6]\n[1990]\n1 Ch 623\n[7]\n[1990]\n1 Ch 623\n[8]\n[1990]\n1 Ch 623\n[9]\n(1979) 38 P and CR 452 at 476", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2012/HCMP001588_2012.doc", + "file_name": "HCMP001588_2012.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkcfi/2019_HKCFI_2252/HCAL002573_2019_abp_fallback.txt b/en_cases_hkcfi/2019_HKCFI_2252/HCAL002573_2019_abp_fallback.txt new file mode 100644 index 0000000..c631130 --- /dev/null +++ b/en_cases_hkcfi/2019_HKCFI_2252/HCAL002573_2019_abp_fallback.txt @@ -0,0 +1,3 @@ +HCAL 2573/2019 [2019] HKCFI 2252 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2573 OF 2019 BETWEEN 郭‍卓‍堅 1st Applicant 葉‍慶‍祥 2nd Applicant and 香‍港行‍政長‍官林‍鄭‍月‍娥女‍士 Putative Respondent ________________ Before: Hon Chow J in Chambers Date of Decision: 11 September 2019 ___________________ D E C I S I O N ___________________ In this application for leave to apply for judicial review, the Applicants seek to challenge the decision of the Chief Executive not to establish a Commission to inquire into whether the Police have acted in abuse of their powers and the reasons for the recent continuous protests seen in Hong Kong. It is alleged that the Chief Executive’s failure to do so amounts to improper conduct (行為失當) and is contrary to the reasonable, or legitimate, expectation (合理期望) of the Applicants and the public. Accordingly, the Applicants seek a court order to require the Government to appoint a Commission to inquire into the recent protests arising from the proposed amendments to the Fugitive Offenders Ordinance, Cap 503, why the protesters have refused to compromise with the Government despite more than 2 months of protests, whether the Police have abused their powers against the citizens, whether the protesters have gone too far, and whether it is reasonable of the Police to use force to stop or suppress the protests. In my view, the application is not reasonably arguable, and has no realistic prospect of success, for the following reasons. First, under Section 2(1) of the Commission of Inquiry Ordinance, Cap 86, the power to appoint a Commission is vested in the Chief Executive in Council, which is defined in Section 3 of the Interpretation and General Clauses Ordinance, Cap 1, to mean “the Chief Executive acting after consultation with the Executive Council”. The court has no power to appoint, or direct or compel the Chief Executive in Council to appoint, a Commission. Second, it has not been contended, and cannot reasonably be contended, that the Chief Executive in Council is under a legal duty to appoint a Commission, or has acted in breach of a legal duty for failing to do so. In so far as “legitimate expectation” is concerned, such expectation would generally only arise from a relevant representation, by words or a previous consistent course of conduct, made by the decision-maker. No such representation exists, or is alleged to exist, in the present case. Third, the relief sought by the Applicants are plainly inappropriate to be granted by the court. The Applicants invite that court to order the Government to establish a Commission, without identifying the precise incident or incidents which the Commission is supposed to inquire into or the scope of inquiry or terms of reference of the Commission. No Commission can properly function unless these matters are clearly and precisely defined. The question of whether a Commission should be established in the prevailing circumstances in Hong Kong is plainly a political decision. As the court has repeatedly emphasised, it is not the function of the court in an application for judicial review to resolve political issues. The court can only determine legal issues properly defined in a Form 86 and raised by an applicant with a sufficient interest in the matter to which the application relates. The present application is an attempt by the Applicants to ask the court to make a political decision which it has no power to make. It amounts to an abuse of the court’s process and must be rejected. Accordingly, the application for leave to apply for judicial review is dismissed. (Anderson Chow) Judge of the Court of First Instance High Court The Applicants acting in person + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/en_cases_hkcfi/2019_HKCFI_2252/case.json b/en_cases_hkcfi/2019_HKCFI_2252/case.json new file mode 100644 index 0000000..defbf79 --- /dev/null +++ b/en_cases_hkcfi/2019_HKCFI_2252/case.json @@ -0,0 +1,26 @@ +{ + "Date": "11 Sep, 2019", + "Action No.": "HCAL2573/2019", + "Neutral Cit.": "[2019] HKCFI 2252", + "case_title": "郭卓堅 AND ANOTHER V. 香港行政長官林鄭月娥女士", + "page_title": "郭卓堅 AND ANOTHER V. 香港行政長官林鄭月娥女士 | [2019] HKCFI 2252 | HKLII", + "case_history": [ + { + "name": "HCAL2573/2019", + "link": "https://www.hklii.hk/en/appealhistory/HCAL/2019/2573" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkcfi/2019/2252", + "neutral_cit": "[2019] HKCFI 2252", + "court_code": "HKCFI", + "content": "HCAL2573/2019 郭卓堅 AND ANOTHER v. 香港行政長官林鄭月娥女士\nHCAL 2573/2019\n[2019] HKCFI 2252\nIN THE HIGH COURT OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOURT OF FIRST INSTANCE\nCONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2573 OF 2019\n________________________\nBETWEEN\n郭卓堅\n1st Applicant\n葉慶祥\n2nd Applicant\nand\n香港行政長官林鄭月娥女士\nPutative\nRespondent\n________________________\nBefore:\nHon Chow J in Chambers\nDate of Decision:\n11 September 2019\n___________________\nD E C I S I O N\n___________________\n1.\nIn this application for leave to apply for judicial review, the Applicants seek to challenge the decision of the Chief Executive not to establish a Commission to inquire into whether the Police have acted in abuse of their powers and the reasons for the recent continuous protests seen in Hong Kong. It is alleged that the Chief Executive’s failure to do so amounts to improper conduct (行為失當) and is contrary to the reasonable, or legitimate, expectation (合理期望) of the Applicants and the public. Accordingly, the Applicants seek a court order to require the Government to appoint a Commission to inquire into the recent protests arising from the proposed amendments to the\nFugitive Offenders Ordinance\n,\nCap 503\n, why the protesters have refused to compromise with the Government despite more than 2 months of protests, whether the Police have abused their powers against the citizens, whether the protesters have gone too far, and whether it is reasonable of the Police to use force to stop or suppress the protests.\n2.\nIn my view, the application is not reasonably arguable, and has no realistic prospect of success, for the following reasons.\n3.\nFirst, under Section 2(1) of the\nCommission of Inquiry Ordinance\n,\nCap 86\n, the power to appoint a Commission is vested in the Chief Executive in Council, which is defined in Section 3 of the\nInterpretation and General Clauses Ordinance\n,\nCap 1\n, to mean “the Chief Executive acting after consultation with the Executive Council”. The court has no power to appoint, or direct or compel the Chief Executive in Council to appoint, a Commission.\n4.\nSecond, it has not been contended, and cannot reasonably be contended, that the Chief Executive in Council is under a legal duty to appoint a Commission, or has acted in breach of a legal duty for failing to do so. In so far as “legitimate expectation” is concerned, such expectation would generally only arise from a relevant representation, by words or a previous consistent course of conduct, made by the decision-maker. No such representation exists, or is alleged to exist, in the present case.\n5.\nThird, the relief sought by the Applicants are plainly inappropriate to be granted by the court. The Applicants invite that court to order the Government to establish a Commission, without identifying the precise incident or incidents which the Commission is supposed to inquire into or the scope of inquiry or terms of reference of the Commission. No Commission can properly function unless these matters are clearly and precisely defined.\n6.\nThe question of whether a Commission should be established in the prevailing circumstances in Hong Kong is plainly a political decision. As the court has repeatedly emphasised, it is not the function of the court in an application for judicial review to resolve political issues. The court can only determine legal issues properly defined in a Form 86 and raised by an applicant with a sufficient interest in the matter to which the application relates. The present application is an attempt by the Applicants to ask the court to make a political decision which it has no power to make. It amounts to an abuse of the court’s process and must be rejected.\n7.\nAccordingly, the application for leave to apply for judicial review is dismissed.\n(Anderson Chow)\nJudge of the Court of First Instance\nHigh Court\nThe Applicants acting in person", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2019/HCAL002573_2019.doc", + "file_name": "HCAL002573_2019.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkcfi/2019_HKCFI_918/HCMA000526_2018_abp_fallback.txt b/en_cases_hkcfi/2019_HKCFI_918/HCMA000526_2018_abp_fallback.txt new file mode 100644 index 0000000..a876652 --- /dev/null +++ b/en_cases_hkcfi/2019_HKCFI_918/HCMA000526_2018_abp_fallback.txt @@ -0,0 +1,3 @@ +HCMA 526/2018 [2019] HKCFI 918 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 526 OF 2018 (ON APPEAL FROM STCC NO 2607 OF 2018) ____________ BETWEEN HKSAR Respondent and ABDULLAH, MOHAMMAD Appellant ____________ Before: Deputy High Court Judge C P Pang in Court Dates of Hearing: 24 January and 20 February 2019 Date of Judgment: 10 April 2019 _______________ J U D G M E N T _______________ The Appellant was charged with one count of “Taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully”, contrary to sections 38AA(1)(a) and 38AA(2) of the Immigration Ordinance, Cap 115. Pleading not guilty to the charge, he was convicted after trial and sentenced to a term of imprisonment of 21 months. The Appellant now appeals his conviction only. PROSECUTION CASE The case concerned a covert operation of the Immigration Department by sending 2 decoy officers to pretend as customers in a restaurant. There is no dispute that the Appellant was inside the restaurant. He had sneaked into Hong Kong illegally and was not allowed to take up any employment, whether paid or unpaid in Hong Kong. The prosecution called three immigration assistants as witnesses (PW1, PW2 and PW3). At trial, the Appellant was represented by counsel assigned by the Duty Lawyer Service Scheme. The Appellant elected not to give evidence, nor did he call any defence witnesses. The issue of the case was the identity of the Appellant. At about 17:31 hours on 8 July 2018, PW1 together with a colleague went to the restaurant located at G/F, 60 Po Tung Road, Sai Kung. Inside the restaurant, PW1 was in regular contact with his team leader to report his observations in the restaurant. PW1 observed three foreign males in the restaurant: (i) one male wearing a blue polo top (“the blue polo top male”); (ii) one male in an all-white chef outfit; and (iii) one male customer (“the Customer”). PW1 testified that the blue polo top male (not wearing glasses), subsequently: (i) greeted PW1 and his colleague and seated them at a table; (ii) placed 2 menus and 2 glasses of water on the table; (iii) stood at the beverage bar; (iv) used a big ladle to ladle some soup from a big soup pot into a bowl in the front of the kitchen; (v) placed a bowl of soup on PW1’s table and returned to the beverage bar to operate the coffee machine; and (vi) placed two cups of coffee on the beverage bar table. PW1 also testified that 1 foreigner female staff had taken orders from them. At about 17:56 hours on the same day, the operation turned overt. PW2 together with the team leader and members went into the restaurant. They revealed their identities and purpose of the visit. PW2 said he saw a male wearing blue polo top coming out from the back door (the rear exit). As his outfit matched the description by the team leader, PW2 approached this male who was identified as the Appellant. PW1 said he had concentrated on the blue polo top male who had served him until he was approached by PW2. PW3 was tendered for crossexamination. He testified that he guarded the back door. He saw two males attempted to flee from the back door of the restaurant. The Appellant (not wearing glasses) was wearing a relatively darker blue polo top, while another arrested person (wearing glasses) was wearing lightblue shirt which was of a very different tone from the Appellant’s upper garment. The prosecution case, put simply, was that the Appellant was the male wearing blue polo top who had served PW1 as a waiter. He had taken up employment in the restaurant. DEFENCE CASE The Appellant chose not to give evidence nor call any defence witnesses. The Appellant had a clear record in Hong Kong. The defence case was that the Appellant was not the person who served PW1. As there were two SouthAsian males (one of them being the Appellant) arrested at the restaurant, both of them wearing similar outfit, and a customer sitting at a table was also a SouthAsian male, it was suggested that there was the possibility that the Appellant was not the person who served PW1. The issue at trial was the identity of the Appellant. REASONS FOR CONVICTION The Magistrate correctly reminded herself of the standard of proof and gave herself proper direction in respect of the Appellant not giving or calling evidence. She also noted that the Appellant had a clear record in Hong Kong and gave herself the relevant direction in favour of the Appellant. The Magistrate applied Turnbull guidelines when considering the identification evidence. The Magistrate did not draw an adverse inference against the Appellant for his attempt to leave the restaurant through the backdoor. Having carefully considered all the evidence, the Magistrate found all the prosecution witnesses to be credible and reliable. As regards the issue of identity which the Magistrate identified as the main issue, the Magistrate found beyond a reasonable doubt that the Appellant was the blue polo top male, who PW1 observed doing the various work. The Magistrate found as the only reasonable and irresistible inference that the Appellant was doing the acts as observed by PW1 in the course of and for the purpose of employment. The Magistrate therefore convicted the Appellant as charged. GROUNDS OF APPEAL In the Notice of Appeal (Form 101), the Appellant stated only the general grounds that the evidence was insufficient to found the conviction. At the appeal hearing, the unrepresented Appellant reiterates that he was not the person who served the immigration officers. He was only in the restaurant to pray and he never did the acts as described by PW1. THE COURT’S CONSIDERATION At the hearing on 24 January 2019, I expressed my concern about the identification of the Appellant as the Statement of Findings was not very clear about the circumstances of the arrest and how the Appellant was identified as the waiter who had served the immigration officers. I was under the impression that the Appellant had left the restaurant. He was only subsequently arrested because of his clothing by PW2, without subsequent identification by PW1. I therefore adjourned the case to call for the transcripts of the evidence of all the prosecution witnesses to examine the evidence of identification in particular. The hearing was resumed on 20 February 2019 when the transcripts were ready and served on the Appellant. The transcript showed that while there was no specific identification of the Appellant by PW1 at the scene or dock identification at trial, PW1 actually saw PW2 intercept the blue polo top male. PW1 confirmed that he had not lost sight of the blue polo top male, except for about 10 seconds, and he had concentrated on this waiter until he was approached by PW2 (see transcripts pages 9K-N and 11M). It would appear from the transcript of evidence that the Appellant had not successfully left the restaurant. Therefore, while the identity of the Appellant was in issue, the crux of the case turned on the credibility of PW1, who had not lost sight of the Appellant before he was caught. As mentioned above, the Magistrate found PW1 - 3 credible and reliable witnesses. In a magistracy appeal which is heard by way of “rehearing”, the appeal court will only depart from a magistrate’s determination of witness credibility if it is “plainly wrong”: HKSAR ‍v Fok, James Alistair [2015] 4 HKC 247.  There was no dispute at trial that there were two SouthAsian males arrested by the immigration officers. While one of them was the Appellant wearing blue polo top, the other one who attempted to escape was wearing a blue colour shirt. There was suggestion that the immigration officers had mixed them up. The Magistrate was alive to this issue and applied the Turnbull guidelines, which in my view might not be necessary in the circumstances of the case. The crux of the matter is the credibility of PW1. The Magistrate noted that the other arrested person was only wearing a light blue coloured shirt and that he was wearing glasses, his appearance and clothing were clearly different from the Appellant’s. The Magistrate also noticed that a customer of the restaurant was a SouthAsian male. However, as PW1 testified, the customer never left his seat throughout the observation of PW1. Having considered the possibility of mistaken identification and found PW1 as a credible and reliable witness, the Magistrate was sure that the Appellant was the person who served PW1. In my judgment, such a finding of fact was one that the Magistrate was entitled to make. The Magistrate gave sufficient reasons to explain her decision.  It cannot be shown that the Magistrate’s finding was plainly wrong. There is no basis for me to interfere with such a finding. The Magistrate properly considered the concept of employment in the context of the relevant offence. In my judgment, the Magistrate’s drawing the inference that the Appellant was taking up employment in the restaurant cannot be faulted. By way of re-hearing, I am satisfied that the evidence of the prosecution can prove the charge beyond a reasonable doubt. CONCLUSION For the reasons given, the conviction is not unsafe or unsatisfactory. The appeal against conviction is therefore dismissed. (C P Pang) Deputy High Court Judge Mr Prakash L Daryanani, SPP of the Department of Justice, for the respondent The Appellant appeared in person + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/en_cases_hkcfi/2019_HKCFI_918/case.json b/en_cases_hkcfi/2019_HKCFI_918/case.json new file mode 100644 index 0000000..b51f6e3 --- /dev/null +++ b/en_cases_hkcfi/2019_HKCFI_918/case.json @@ -0,0 +1,26 @@ +{ + "Date": "10 Apr, 2019", + "Action No.": "HCMA526/2018", + "Neutral Cit.": "[2019] HKCFI 918", + "case_title": "HKSAR V. ABDULLAH, MOHAMMAD", + "page_title": "HKSAR V. ABDULLAH, MOHAMMAD | [2019] HKCFI 918 | HKLII", + "case_history": [ + { + "name": "HCMA526/2018", + "link": "https://www.hklii.hk/en/appealhistory/HCMA/2018/526" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkcfi/2019/918", + "neutral_cit": "[2019] HKCFI 918", + "court_code": "HKCFI", + "content": "HCMA526/2018 HKSAR v. ABDULLAH, MOHAMMAD\nHCMA 526/2018\n[2019] HKCFI 918\nIN THE HIGH COURT OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOURT OF FIRST INSTANCE\nMAGISTRACY APPEAL NO 526 OF 2018\n(ON APPEAL FROM STCC NO 2607 OF 2018)\n____________\nBETWEEN\nHKSAR\nRespondent\nand\nABDULLAH, MOHAMMAD\nAppellant\n____________\nBefore:\nDeputy High Court Judge C P Pang in Court\nDates of Hearing:\n24 January and 20 February 2019\nDate of Judgment:\n10 April 2019\n_______________\nJ U D G M E N T\n_______________\n1.\nThe Appellant was charged with one count of “Taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully”, contrary to sections 38AA(1)(a) and 38AA(2) of the\nImmigration Ordinance\n,\nCap 115\n. Pleading not guilty to the charge, he was convicted after trial and sentenced to a term of imprisonment of 21 months.\n2.\nThe Appellant now appeals his conviction only.\nPROSECUTION CASE\n3.\nThe case concerned a covert operation of the Immigration Department by sending 2 decoy officers to pretend as customers in a restaurant. There is no dispute that the Appellant was inside the restaurant. He had sneaked into Hong Kong illegally and was not allowed to take up any employment, whether paid or unpaid in Hong Kong.\n4.\nThe prosecution called three immigration assistants as witnesses (PW1, PW2 and PW3). At trial, the Appellant was represented by counsel assigned by the Duty Lawyer Service Scheme. The Appellant elected not to give evidence, nor did he call any defence witnesses. The issue of the case was the identity of the Appellant.\n5.\nAt about 17:31 hours on 8 July 2018, PW1 together with a colleague went to the restaurant located at G/F, 60 Po Tung Road, Sai Kung. Inside the restaurant, PW1 was in regular contact with his team leader to report his observations in the restaurant.\n6.\nPW1 observed three foreign males in the restaurant:\n(i) one male wearing a blue polo top (“the blue polo top male”);\n(ii) one male in an all-white chef outfit; and\n(iii) one male customer (“the Customer”).\n7.\nPW1 testified that the blue polo top male (not wearing glasses), subsequently:\n(i) greeted PW1 and his colleague and seated them at a table;\n(ii) placed 2 menus and 2 glasses of water on the table;\n(iii) stood at the beverage bar;\n(iv) used a big ladle to ladle some soup from a big soup pot into a bowl in the front of the kitchen;\n(v) placed a bowl of soup on PW1’s table and returned to the beverage bar to operate the coffee machine; and\n(vi) placed two cups of coffee on the beverage bar table.\n8.\nPW1 also testified that 1 foreigner female staff had taken orders from them.\n9.\nAt about 17:56 hours on the same day, the operation turned overt. PW2 together with the team leader and members went into the restaurant. They revealed their identities and purpose of the visit. PW2 said he saw a male wearing blue polo top coming out from the back door (the rear exit). As his outfit matched the description by the team leader, PW2 approached this male who was identified as the Appellant. PW1 said he had concentrated on the blue polo top male who had served him until he was approached by PW2.\n10.\nPW3 was tendered for cross‑examination. He testified that he guarded the back door. He saw two males attempted to flee from the back door of the restaurant. The Appellant (not wearing glasses) was wearing a relatively darker blue polo top, while another arrested person (wearing glasses) was wearing light‑blue shirt which was of a very different tone from the Appellant’s upper garment.\n11.\nThe prosecution case, put simply, was that the Appellant was the male wearing blue polo top who had served PW1 as a waiter. He had taken up employment in the restaurant.\nDEFENCE CASE\n12.\nThe Appellant chose not to give evidence nor call any defence witnesses. The Appellant had a clear record in Hong Kong.\n13.\nThe defence case was that the Appellant was not the person who served PW1. As there were two South‑Asian males (one of them being the Appellant) arrested at the restaurant, both of them wearing similar outfit, and a customer sitting at a table was also a South‑Asian male, it was suggested that there was the possibility that the Appellant was not the person who served PW1.\n14.\nThe issue at trial was the identity of the Appellant.\nREASONS FOR CONVICTION\n15.\nThe Magistrate correctly reminded herself of the standard of proof and gave herself proper direction in respect of the Appellant not giving or calling evidence.\n16.\nShe also noted that the Appellant had a clear record in Hong Kong and gave herself the relevant direction in favour of the Appellant.\n17.\nThe Magistrate applied\nTurnbull\nguidelines when considering the identification evidence.\n18.\nThe Magistrate did not draw an adverse inference against the Appellant for his attempt to leave the restaurant through the backdoor.\n19.\nHaving carefully considered all the evidence, the Magistrate found all the prosecution witnesses to be credible and reliable. As regards the issue of identity which the Magistrate identified as the main issue, the Magistrate found beyond a reasonable doubt that the Appellant was the blue polo top male, who PW1 observed doing the various work.\n20.\nThe Magistrate found as the only reasonable and irresistible inference that the Appellant was doing the acts as observed by PW1 in the course of and for the purpose of employment. The Magistrate therefore convicted the Appellant as charged.\nGROUNDS OF APPEAL\n21.\nIn the Notice of Appeal (Form 101), the Appellant stated only the general grounds that the evidence was insufficient to found the conviction. At the appeal hearing, the unrepresented Appellant reiterates that he was not the person who served the immigration officers. He was only in the restaurant to pray and he never did the acts as described by PW1.\nTHE COURT’S CONSIDERATION\n22.\nAt the hearing on 24 January 2019, I expressed my concern about the identification of the Appellant as the Statement of Findings was not very clear about the circumstances of the arrest and how the Appellant was identified as the waiter who had served the immigration officers. I was under the impression that the Appellant had left the restaurant. He was only subsequently arrested because of his clothing by PW2, without subsequent identification by PW1. I therefore adjourned the case to call for the transcripts of the evidence of all the prosecution witnesses to examine the evidence of identification in particular. The hearing was resumed on 20 February 2019 when the transcripts were ready and served on the Appellant.\n23.\nThe transcript showed that while there was no specific identification of the Appellant by PW1 at the scene or dock identification at trial, PW1 actually saw PW2 intercept the blue polo top male. PW1 confirmed that he had not lost sight of the blue polo top male, except for about 10 seconds, and he had concentrated on this waiter until he was approached by PW2 (see transcripts pages 9K-N and 11M). It would appear from the transcript of evidence that the Appellant had not successfully left the restaurant.\n24.\nTherefore, while the identity of the Appellant was in issue, the crux of the case turned on the credibility of PW1, who had not lost sight of the Appellant before he was caught. As mentioned above, the Magistrate found PW1 - 3 credible and reliable witnesses.\n25.\nIn a magistracy appeal which is heard by way of “re‑hearing”, the appeal court will only depart from a magistrate’s determination of witness credibility if it is “plainly wrong”:\nHKSAR v Fok, James Alistair\n[2015] 4 HKC 247\n.\n26.\nThere was no dispute at trial that there were two South‑Asian males arrested by the immigration officers. While one of them was the Appellant wearing blue polo top, the other one who attempted to escape was wearing a blue colour shirt. There was suggestion that the immigration officers had mixed them up.\n27.\nThe Magistrate was alive to this issue and applied the\nTurnbull\nguidelines, which in my view might not be necessary in the circumstances of the case. The crux of the matter is the credibility of PW1.\n28.\nThe Magistrate noted that the other arrested person was only wearing a light blue coloured shirt and that he was wearing glasses, his appearance and clothing were clearly different from the Appellant’s.\n29.\nThe Magistrate also noticed that a customer of the restaurant was a South‑Asian male. However, as PW1 testified, the customer never left his seat throughout the observation of PW1.\n30.\nHaving considered the possibility of mistaken identification and found PW1 as a credible and reliable witness, the Magistrate was sure that the Appellant was the person who served PW1.\n31.\nIn my judgment, such a finding of fact was one that the Magistrate was entitled to make. The Magistrate gave sufficient reasons to explain her decision. It cannot be shown that the Magistrate’s finding was plainly wrong. There is no basis for me to interfere with such a finding.\n32.\nThe Magistrate properly considered the concept of employment in the context of the relevant offence\n[1]\n. In my judgment, the Magistrate’s drawing the inference that the Appellant was taking up employment in the restaurant cannot be faulted.\n33.\nBy way of re-hearing, I am satisfied that the evidence of the prosecution can prove the charge beyond a reasonable doubt.\nCONCLUSION\n34.\nFor the reasons given, the conviction is not unsafe or unsatisfactory. The appeal against conviction is therefore dismissed.\n(C P Pang)\nDeputy High Court Judge\nMr Prakash L Daryanani, SPP of the Department of Justice, for the\n respondent\nThe Appellant appeared in person\n[1]\nThe magistrate considered\nHKSAR v Ferosh\n(2014) 5 HKC 104\n;\nThe Queen v IP Po-fai\nHCMA 1201/1995;\nHKSAR v Chan So Bing\nHCMA 506/2005", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2018/HCMA000526_2018.doc", + "file_name": "HCMA000526_2018.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkcfi/2023_HKCFI_1165/HCAL000779_2019_abp_fallback.txt b/en_cases_hkcfi/2023_HKCFI_1165/HCAL000779_2019_abp_fallback.txt new file mode 100644 index 0000000..c28a76d --- /dev/null +++ b/en_cases_hkcfi/2023_HKCFI_1165/HCAL000779_2019_abp_fallback.txt @@ -0,0 +1,7 @@ +HCAL 779/2019 [2023] HKCFI 1165 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 779 of 2019 BETWEEN Valles Julie Ann Caranto Applicant    and        Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent   and        Director of Immigration Putative Interested Party          Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following; ( consideration of documents only; or     ( consideration of documents and Applicant being absent in open court;   Order by Deputy High Court Judge K.W. Lung: Leave to apply for Judicial Review be refused. Observations for the Applicant: THE APPLICATION The applicant applies for leave to apply for judicial review of the Decision dated 7 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s BOR 2 Decision”) refusing to allow the applicant’s late filing of notice of appeal/petition against the Director’s Second Decision as described below. The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with her application on paper. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party. +The applicant The applicant is a national of the Philippines. She entered Hong Kong as a foreign domestic helper on 16 September 2011. However, her employment contract was prematurely terminated on 20 June 2012. She was required to leave within two weeks. However, she did not depart and had overstayed since 5 July 2012. On 21 June 2013, she was arrested by the police. On 14 April 2014, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband, Valles Oscar Paderon, and a couple of loan sharks. According to the applicant, she married her husband on 14 May 1996. Her husband was from Valles family which was rich and influential. However, her own family was middle class. In around 1997, her husband became addicted to drugs and their family financial situation worsened. Her husband refused to seek assistance from the Valles and demanded the applicant to work and support their family. Initially, the applicant worked as a laundry lady but the income was insufficient. Her husband became abusive and assaulted her on several occasions. She then decided to work in Hong Kong in 2002. From 2002 to 2004, she would remit the salary to her husband. However, her mother told her that he spent the sum on alcohol and drugs. She then changed to send money to her mother. Upon knowing the change, her husband threatened and hit the applicant’s mother. When the applicant’s employment contract was terminated in 2005, she returned to the Philippines. The physical and mental abuses from her husband continued and escalated. Thereafter, her husband took her to the loan sharks and borrowed money for her overseas employments. While abroad, in 2007, she learnt from her mother that her husband got into troubles with her family members and other villagers. On 28 March 2009, the applicant returned home to attend her son’s graduation ceremony. She did not encounter her husband during this visit. In May 2011, she started to receive letters from the loan sharks demanding the repayments. In September 2011, she came to work in Hong Kong again. In around February 2012, her mother informed her that her husband had returned to the village. He later sent threatening messages to the applicant’s Hong Kong number. Meanwhile, her mother also received a message asking them to repay the loan. Out of fear, the applicant decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 28 July 2015 (the “Director’s First Decision”). The Director’s Decisions The Director considered the applicant’s claim in relation to the following risks: risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”); risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”). By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found +that (i) the past events did not support her assertions that her husband or the loan sharks had the intention to cause harm or kill her and there was no state involvement in these disputes [16]-[37]; (ii) state protection would be available to her [38]-[45]; and (iii) internal relocation was a viable alternative [46]-[49]. In passing, the Director also noted that her delay in seeking non-refoulement protection undermined her credibility [50]-[53]. In the Notice of Further Decision dated 11 April 2017, the Director found that the applicant’s right to life would not be violated and thus rejected her claim on BOR 2 risk (the “Director’s Second Decision”). The Board’s Decisions The applicant first appealed the Director’s First Decision to the Board. On 11 August 2016, the Board conducted an oral hearing for her appeal. The applicant chose not to testify in the hearing [4]. At the outset, the Board rejected the applicant’s claimed risk of harm from the loan sharks on the basis of lack of evidence [2]. It then proceeded to consider the claimed risk of harm from the husband. The Board noted that the dispute with the husband had no state involvement [7]-[9]; that the alleged injuries failed to attain a minimum level of severity [10]; that, while she was raped by her husband, it was 9 years ago and she conceded that her husband had ceased to demand sex long before she came to Hong Kong [11]; and that internal relocation was proven to be available according to the country of origin information [15]-[21]. As a result, the Board rejected the applicant’s claim on Torture risk. For the same reasons, it also rejected her claim on the remaining grounds. Independently, the Board found that her delay in lodging the non-refoulement claim undermined her credibility [33]-[36]. For the aforesaid reasons, by way of a decision dated 18 January 2017, the Board rejected the applicant’s claim and dismissed her appeal against the Director’s First Decision (the “Board’s First Decision”). On 5 June 2017, the applicant filed a notice of appeal/petition against the Director’s Second Decision. She was around 1 month and 9 days out of time [5]. The Board rejected the applicant’s explanation of change of address as it was her responsibility to notify the Board about the change of address [8.1]-[8.2]. It also noted that the applicant’s grounds of appeal only contained a summary of her claim which had been ventilated in the Board’s First Decision [9]. In any event, based on the findings of the Board’s First Decision, her appeal was devoid of merits. As a result, by way of the Board’s BOR 2 Decision, the Board refused to allow the applicant’s late filing of notice of appeal/petition. Application for leave to apply for judicial review of the Board’s Decision The applicant has filed Form 86 dated 20 March 2019 for leave to apply for judicial review of the Board’s Second Decision. In her affidavit in support of her application, the applicant did not raise any specific ground. DISCUSSION The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C +Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1). The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. The question before this Court is whether the Board was correct to refuse to extend time to the applicant to file her notice of appeal and whether there are any merits in her application. The applicant has an obligation to keep the Director and the Board up to date as to her address or telephone number for communication. The Court of Appeal in Re: Karamjit Singh [2018] HKCA 460, 2 August 2018 held: “14. … …It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346….” In any event, there is no merit in the applicant’s application as she had failed in her claim on the other risks, particularly the BOR 3 risk. The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held “59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].” There is no valid ground to challenge the Board’s Second Decision. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review. CONCLUSION I refuse to grant leave to the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss her application. Dated the 10th day of May 2023 (M.O. WONG)(Ms) for Registrar, High Court   +Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:    a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). Sent to the Applicant on 10/5/2023 Valles Julie Ann Caranto Applicant’s ref. no: Nil. Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 10/5/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 2035/15/8/56/F155; BOR 702/17/6/19/F53 Director of Immigration Putative Interested Party’s ref. no.: QA T/C/313/15 & RBCZ 9000954/17 (Formerly RBCZ 3000873/14)(T6S6) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)   Form CALL-1 + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/en_cases_hkcfi/2023_HKCFI_1165/case.json b/en_cases_hkcfi/2023_HKCFI_1165/case.json new file mode 100644 index 0000000..1fa2fa2 --- /dev/null +++ b/en_cases_hkcfi/2023_HKCFI_1165/case.json @@ -0,0 +1,26 @@ +{ + "Date": "10 May, 2023", + "Action No.": "HCAL779/2019", + "Neutral Cit.": "[2023] HKCFI 1165", + "case_title": "VALLES JULIE ANN CARANTO V. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE", + "page_title": "VALLES JULIE ANN CARANTO V. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE | [2023] HKCFI 1165 | HKLII", + "case_history": [ + { + "name": "HCAL779/2019", + "link": "https://www.hklii.hk/en/appealhistory/HCAL/2019/779" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkcfi/2023/1165", + "neutral_cit": "[2023] HKCFI 1165", + "court_code": "HKCFI", + "content": "HCAL779/2019 VALLES JULIE ANN CARANTO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE\nHCAL 779/2019\n[2023] HKCFI 1165\nIN THE HIGH COURT OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOURT OF FIRST INSTANCE\nCONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 779 of 2019\nBETWEEN\nValles Julie Ann Caranto\nApplicant\nand\nTorture Claims Appeal Board/\nPutative\nNon-refoulement Claims Petition Office\nRespondent\nand\nDirector of Immigration\nPutative\nInterested Party\nApplication for Leave to Apply for Judicial Review\nNOTIFICATION of the Judge’s decision (Ord. 53 r. 3)\nFollowing;\nconsideration of documents only; or\nconsideration of documents\nand\nApplicant being absent in open court;\nOrder by\nDeputy High Court Judge K.W. Lung\n:\nLeave to apply for Judicial Review be refused\n.\nObservations for the Applicant:\nTHE APPLICATION\n1.\nThe applicant applies for leave to apply for judicial review of the Decision dated 7 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s BOR 2 Decision”) refusing to allow the applicant’s late filing of notice of appeal/petition against the Director’s Second Decision as described below.\n2.\nThe applicant did not ask for a hearing. Pursuant to\nOrder 53\n, rule 3(3) of\nthe Rules of the High Court\n, I shall deal with her application on paper.\n3.\nPursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.\nThe applicant\n4.\nThe applicant is a national of the Philippines. She entered Hong Kong as a foreign domestic helper on 16 September 2011. However, her employment contract was prematurely terminated on 20 June 2012. She was required to leave within two weeks. However, she did not depart and had overstayed since 5 July 2012. On 21 June 2013, she was arrested by the police. On 14 April 2014, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband, Valles Oscar Paderon, and a couple of loan sharks.\n5.\nAccording to the applicant, she married her husband on 14 May 1996. Her husband was from Valles family which was rich and influential. However, her own family was middle class. In around 1997, her husband became addicted to drugs and their family financial situation worsened. Her husband refused to seek assistance from the Valles and demanded the applicant to work and support their family. Initially, the applicant worked as a laundry lady but the income was insufficient. Her husband became abusive and assaulted her on several occasions. She then decided to work in Hong Kong in 2002. From 2002 to 2004, she would remit the salary to her husband. However, her mother told her that he spent the sum on alcohol and drugs. She then changed to send money to her mother. Upon knowing the change, her husband threatened and hit the applicant’s mother. When the applicant’s employment contract was terminated in 2005, she returned to the Philippines. The physical and mental abuses from her husband continued and escalated.\n6.\nThereafter, her husband took her to the loan sharks and borrowed money for her overseas employments. While abroad, in 2007, she learnt from her mother that her husband got into troubles with her family members and other villagers. On 28 March 2009, the applicant returned home to attend her son’s graduation ceremony. She did not encounter her husband during this visit. In May 2011, she started to receive letters from the loan sharks demanding the repayments. In September 2011, she came to work in Hong Kong again.\n7.\nIn around February 2012, her mother informed her that her husband had returned to the village. He later sent threatening messages to the applicant’s Hong Kong number. Meanwhile, her mother also received a message asking them to repay the loan. Out of fear, the applicant decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 28 July 2015 (the “Director’s First Decision”).\nThe Director’s Decisions\n8.\nThe Director considered the applicant’s claim in relation to the following risks:\na. risk of torture under Part VIIC of the\nImmigration Ordinance\n,\nCap. 115\n, (“the Ordinance”) (“Torture risk”);\nb. risk of violation of the right to life under Article 2 of\nSection 8\nof the\nHong Kong Bill of Rights Ordinance\n,\nCap. 383\n(“HKBOR”) (“BOR 2 risk”);\nc. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and\nd. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).\n9.\nBy way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the past events did not support her assertions that her husband or the loan sharks had the intention to cause harm or kill her and there was no state involvement in these disputes [16]-[37]; (ii) state protection would be available to her [38]-[45]; and (iii) internal relocation was a viable alternative [46]-[49]. In passing, the Director also noted that her delay in seeking non-refoulement protection undermined her credibility [50]-[53].\n10.\nIn the Notice of Further Decision dated 11 April 2017, the Director found that the applicant’s right to life would not be violated and thus rejected her claim on BOR 2 risk (the “Director’s Second Decision”).\nThe Board’s Decisions\n11.\nThe applicant first appealed the Director’s First Decision to the Board. On 11 August 2016, the Board conducted an oral hearing for her appeal. The applicant chose not to testify in the hearing [4].\n12.\nAt the outset, the Board rejected the applicant’s claimed risk of harm from the loan sharks on the basis of lack of evidence [2]. It then proceeded to consider the claimed risk of harm from the husband. The Board noted that the dispute with the husband had no state involvement [7]-[9]; that the alleged injuries failed to attain a minimum level of severity [10]; that, while she was raped by her husband, it was 9 years ago and she conceded that her husband had ceased to demand sex long before she came to Hong Kong [11]; and that internal relocation was proven to be available according to the country of origin information [15]-[21]. As a result, the Board rejected the applicant’s claim on Torture risk. For the same reasons, it also rejected her claim on the remaining grounds. Independently, the Board found that her delay in lodging the non-refoulement claim undermined her credibility [33]-[36].\n13.\nFor the aforesaid reasons, by way of a decision dated 18 January 2017, the Board rejected the applicant’s claim and dismissed her appeal against the Director’s First Decision (the “Board’s First Decision”).\n14.\nOn 5 June 2017, the applicant filed a notice of appeal/petition against the Director’s Second Decision. She was around 1 month and 9 days out of time [5]. The Board rejected the applicant’s explanation of change of address as it was her responsibility to notify the Board about the change of address [8.1]-[8.2]. It also noted that the applicant’s grounds of appeal only contained a summary of her claim which had been ventilated in the Board’s First Decision [9]. In any event, based on the findings of the Board’s First Decision, her appeal was devoid of merits.\n15.\nAs a result, by way of the Board’s BOR 2 Decision, the Board refused to allow the applicant’s late filing of notice of appeal/petition.\nApplication for leave to apply for judicial review of the Board’s Decision\n16.\nThe applicant has filed Form 86 dated 20 March 2019 for leave to apply for judicial review of the Board’s Second Decision.\n17.\nIn her affidavit in support of her application, the applicant did not raise any specific ground.\nDISCUSSION\n18.\nThe role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See\nTK v Michael C Jenkins Esq and Director of Immigration\n[2013] 1 HKC 526\n, §40 and\nNupur Mst v Director of Immigration\n[2018] HKCA 524\n, §14 (1).\n19.\nThe Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.\n20.\nThe question before this Court is whether the Board was correct to refuse to extend time to the applicant to file her notice of appeal and whether there are any merits in her application.\n21.\nThe applicant has an obligation to keep the Director and the Board up to date as to her address or telephone number for communication. The Court of Appeal in\nRe: Karamjit Singh\n[2018] HKCA 460\n, 2 August 2018 held:\n“14. … …It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see:\nIslam Raja Rais v Director of Immigration\nHCMP 881/2017, 26 June 2017;\nSaid Umair v Torture Claims Appeal Board\n[2018] HKCA 82\n; and\nRe Saqlain Muhammad\n[2018] HKCA 346\n….”\n22.\nIn any event, there is no merit in the applicant’s application as she had failed in her claim on the other risks, particularly the BOR 3 risk. The Court of Appeal in\nKulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office\n[2022] HKCA 48\n, 7 January 2022, held\n“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see\nAA v Sweden\n(2017) 64 EHRR 20\nat [52] and [96];\nRM v Gerard Paul Muttrie Esq\n(unrep., HCAL 166/2015, 3 March 2016) at [52].”\n23.\nThere is no valid ground to challenge the Board’s Second Decision.\n24.\nThe Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as\nWednesbury\nunreasonable or irrational.\n25.\nThe applicant fails to show that she has any realistic prospect of success in her proposed judicial review.\nCONCLUSION\n26.\nI refuse to grant leave to the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss her application.\nDated the 10\nth\nday of May 2023\n(M.O. WONG)(Ms)\nfor Registrar, High Court\nWhere leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence\nNotes for the Applicant\n:\nIf leave has been granted, the Applicant or the Applicant’s solicitors must:\na) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);\nb) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and\nc) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).\nSent to the Applicant\non 10/5/2023\nValles Julie Ann Caranto\nApplicant’s ref. no:\nNil.\nSent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 10/5/2023\nTorture Claims Appeal Board/Non-refoulement Claims Petition Office\nPutative Respondent’s ref. no.:\nUSM 2035/15/8/56/F155; BOR 702/17/6/19/F53\nDirector of Immigration\nPutative Interested Party’s ref. no.: QA T/C/313/15 & RBCZ 9000954/17 (Formerly RBCZ 3000873/14)(T6S6)\nDepartment of Justice,\nSenior Assistant Law Officer\n(Civil Law)\n(Civil Litigation Unit 2)\nForm CALL-1", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2019/HCAL000779_2019.doc", + "file_name": "HCAL000779_2019.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkcrc/2016_HKCrC_5/CCDI000346_2013.txt b/en_cases_hkcrc/2016_HKCrC_5/CCDI000346_2013.txt new file mode 100644 index 0000000..28d11e6 --- /dev/null +++ b/en_cases_hkcrc/2016_HKCrC_5/CCDI000346_2013.txt @@ -0,0 +1,175 @@ +CCDI 346-354/2013 (PW) + +IN THE CORONER’S COURT +THE HONG KONG SPECIAL ADMINSTRATIVE REGION +(Case No. CCDI 346-354 of 2013) + +HO Oi-hing +HO Oi-ying +HO Oi-ming +TANG Yuk-ling +SIU Chi-man +KWAN Pui-man Eleni +POON Lau-tim +TO Sau-ching +POON Tak-sze + +Coram: June Cheung, Coroner +Dates of hearing: 15-26 Feb, 2 March, 9 March, 31 March and 23 May 2016 +Date of delivery of inquisition: 7 June 2016 +____________________ +I N Q U I S I T I O N + _____________________ +Introduction +1. I have mentioned at the commencement of and during this inquest, but I will reiterate here: that the purpose of this Inquest is to inquire into the cause of the death and the circumstances connected with the death. We are not concerned with the fault, civil liability or compensation here. Although we have looked into matters concerning travel insurance as well as responsibility of travel agent at different locality, those, as I have mentioned more than once, were to facilitate me in making practicable recommendation to prevent future tragedy. In fact, the law expressly prohibits any conclusion being framed in such a way as to determine any question of civil liability. Therefore the question as to whether or not there was negligence such as to give rise to an action for damages or compensation is not a matter for this court; - that is a matter for the civil courts. My role here is to determine simply: what happened and what did not happen as well as making practicable recommendation having the hard lesson learnt. +2. The standard of proof I apply in this inquest, unless I specify otherwise, when deciding upon all matters is what known is as “on a balance of probabilities”. In other words, is it more likely than not that a fact existed or an event occurred. +3. Despite the difficulties encountered during the investigation, namely the fact that all eye witnesses of incident were not available, the court was not able to examine the real exhibits and that Hong Kong itself does not have experience or expertise in hot-air ballooning, this court has fortunately obtained two detailed reports from the Egyptian authority which were admitted as evidence, namely, 1) the investigation report issued by the Egyptian Ministry of Civil Aviation in December 2013 (“AAIC report”) governed by Annex 13 to the Convention on International Civil Aviation and 2) the Public prosecution report signed by the “President of the Appeals, Acting Chairman of the Technical Officer to the Officer of the Attorney General of the Arab Republic of Egypt (“Prosecution report”) containing the transcript and memorandum from the General Prosecutor’s office. The two reports are in my view thorough, detailed and professionally produced by persons with the necessary skills, knowledge and expertise. We also have the benefit of having Mr. Chadwick, General Aviation Flight Standard Officer (Balloon Operations) from the UK Civil Aviation Authority, to assist this court to understand the two reports and operation of hot air balloon (“HAB”) in general. I consider Mr. Chadwick’s expert evidence was most helpful, impartial and professional. +4. During the inquest, we have called 9 witnesses: they were Mr Wilson AU (CW1) (“AU”) and LAU Tak ping (CW3) (“LAU”) from Kuoni Travel (“Kuoni”); Mr Wong Kong Sing (CW2), one of the tour member who did not join the optional hot air balloon ride; Mr Joseph Tung, Chairman of the Travel Industry Council (“TIC”) (CW4), Mr Chin Shing (CW5) who was responsible for making the HAB model for the purpose of this inquest and two Arabic translators for clarification of some of the contents of the reports (CW6 and CW7); Mr Chadwick (CW8), the HAB expert mentioned above and finally Miss Scarlett SO Lai-kuen (CW9), person in charge in Hong Kong of Paradise Travel (“Paradise”) which was the Destination Management Company (“DMC”) engaged by Kuoni for this Egypt tour. Their evidence covered a number of issues in great details that apparently might not be strictly relevant to the findings at inquest set out in Form 12 but essential for this court to understand the background of the case and finally making recommendation to prevent future similar tragedy. +General course of event leading to the deaths +5. The present case may be one of the most tragic incidents happened while Hong Kong citizens were travelling abroad. As a matter of fact, it was the deadliest hot air ballooning disaster in history resulted in 19 deaths, 9 of which were the deceased in the present inquest. The general course of event was largely undisputed. All the nine deceased, together with 6 other tour members who did not join the HAB ride, were joining a 10 days’ tour to Egypt departing on 22 February 2013 organized by Kuoni. The HAB ride in question took place in Luxor city and was one of the self-pay optional activities offered in the tour. Kuoni has engaged Paradise as their DMC responsible for the arrangement in Egypt and Paradise has chosen Egyptian Airship and Balloon-Sky Cruise Company (“Sky Cruise”) as the local HAB service provider. +6. At small hours on 26 Feb 2013, the 9 deceased, AU, tour escort of Kuoni, and Mostafa, assistant from Paradise, set off from hotel to the place where the balloon would take off. It was around 0615 hours local time when the balloon took off with 20 passengers. When the balloon had flown for more than 35 minutes, the pilot instructed the ground crew to receive the drop line starting the landing procedure. The HAB suddenly caught fire in the air which caused major injury to the pilot who exited the basket followed by a few passengers. While the balloon was still burning with less weight on the basket, it kept ascending until the envelope was so badly damaged, incapable of supporting the basket and fell on the field. As a result of the incident, 19 passengers were dead, 9 of which were the deceased of the present inquest. The pathologists found that the injury causing each of their death to be multiple injuries and burns. +Cause of the accident +7. The HAB in question was manufactured in 2004 by a Spanish balloon company called Ultramagic and registered as SU 283. The balloon type was “Ultramagic N425” and Sky Cruise bought it in 2005 from a Sweden operator. The balloon was operated by wind action effects for horizontal movements while vertical movements control was made through the control of the burners by the balloon pilot. +8. On the evidence, the take-off procedures seemed to be normal and the balloon had flown for about 35 minutes before the fire started in the course of landing. +Evidence from the Pilot +9. The only surviving eye-witness of the event who has given evidence to the Egyptian authority was the pilot of the HAB in question, Mr Momen Murad Ali Hussein, Egyptian, aged 29. The other surviving passenger was not willing to give evidence. The pilot has held a balloon pilot commercial licence issued by the Egyptian Civil Aviation Authority since 2006. He was firstly interrogated by the authority when he was badly injured in bed after the accident. He was further taxed for the purpose of prosecution in April 2013 and he gave a statement to the investigation authority again on 17 June 2013. The prosecution was not proceeded with finally. His evidence was contained in the AAIC report and prosecution report. +10. He stated that because there was no maintenance manager available at the time, he took a look at the balloon and ensured the hoses were safely installed using sense of smell before taking off. At the time of taking off, he contacted the control tower but no one was there to answer him. He said however the take-off procedures went smoothly and the balloon kept flying like usual until it started to land at around 10 meters height from the ground. At the beginning of the landing, the fuel quantity for both aft cylinders showed ¼ capacity, whilst the forward burners were not used except for the “pilot light”. After about 35 minutes, the pilot used the forward cylinders. All of a sudden, a fire hit him on his back and ejected him from the balloon. He was not able to take any measures to control the fire, neither using the extinguisher nor turning off the valve of the gas cylinder. +11. The pilot also stated that at the beginning of the landing, he dropped the rope out of the basket before he heard a loud sound of a fire flame. He did not notice any interference between the rope and any of the hoses. The location of the drop line rope is far from the hoses, he believed it cannot be scrambled around them. Neither did he smell any gas nor hear any explosion sound of any part. All he heard was the sound of a fire flame. The fire sound was similar to the spraying sound coming out of an “insect repellant pressurized can”. He said the fire came from the forward burners but was not able to identify the exact location of the fire source. The fire was from left side and his injuries mainly on the left side. The fire was in one direction of yellow color. +12. He could not conclusively identify the source of the flame. He believed that the cause of accident could be as a result of defect of one of the hoses connecting the cylinder to the burner. +13. The Egyptian investigation also showed that the surviving pilot was suffering from burn wounds scattered on his head, his face, his back, his left upper limb and right upper arm, and upper chest and abdomen and lower limbs. Skin grafting operations were conducted. +Maintenance of the hoses +14. The maintenance manual states the need for a special inspection of the hoses every ten years and to check if there are any cuts or damage. It is said that the maintenance manager conducted a 100 hour annual inspection dated 5 October 2012 under the supervision of Egyptian Civil Aviation Authority and the Validity Certificate was renewed for the period of 13 October 2012 until 12 October 2013. + +15. Within the AAIC analysis, it is stated that maintenance carried out by Sky Cruise did not always refer to the appropriate part number or serial number, as per the full maintenance procedures. + +16. On the other hand, Hasan Muhammad Kinnawi, the assistant of the Ground Team Head for the HAB who was responsible for supervising the workers in taking off and landing, stated that gas leakage was a usual occurrence in his job, and they usually noticed the leakage by smell it and would change it without mentioning of any reporting system. He also said that the operation manager (ground team head) and the maintenance engineer were both absent on the day of the incident for unknown reasons. The operation manager of Viking Company, another HAB company in Luxor, also said that gas leakage of HAB happened a lot. +17. Mr Chadwick commentedthat the hose that was attached to the burner that was made in 2005 and may have accumulated high flight hours may not necessarily be directly a contributing factor to the accident. Hoses with many more confirmed flying hours and much older are being regularly used in the world hot air balloon fleet. At the time of this report, the UK CAA are unaware of another hot air balloon accident that is attributed to an in-flight hose failure of the nature specified in the report, this being largely due to the stringent inspection and maintenance requirements in of HAB activities in UK and the implementation of it. +Conclusions from the Egyptian authority +18. It is stated in AAIC report (Exhibit C30), at page 147, that: +“The probable cause for the accident as seen by the investigation committee is due to a (1) hose fuel leak at the upper portion of the forward right hose connected to burner number 193 capturing its ignition source from burner’s fire causing a fire that caused a major and direct injury to the (2) balloon captain” (my emphasis) +19. Nevertheless, it could not be ascertained from the investigation carried out by the Egyptian authority if the hose fuel leak was as a result of internal malfunction of the hose due to lack of inspection and/or maintenance or if there was an outer force pulling off the hose from the burner, e.g. tangling by drop line at the time of landing. +20. The AAIC report also considered two contributing factors to the accident at page 147 of the report: +“1. Maintenance actions that were carried out on the hoses could not indicate the need to replace the hose that was the cause of the accident” +2. The part number of the hose connected to the burner 193 was for a hose made in 2005 and therefore it has accumulated high flight hours and sometimes under adverse conditions” +21. On the other hand, the Spanish Civil Aviation Commission of Accidents (CIAIAC) made their point in their letter, as the accredited representative from Spain in the Egyptian investigation, that: +“the simultaneity or coincidence in time of the action of pulling down the balloon by the ground crew through the drop line rope (handling line) and the start of the gas leak and a further fire should be considered as a significant condition for the accident scenario under which the fire broke out” +22. Further conclusion by CIAIAC was that: +“- Operator maintenance discrepancy issues and certain lack of maintenance control were evident during the AAIC investigation; +With regard to this particular flight, the pre-departure check had not been fully completed by the balloon pilot.” +Finding at inquest in Form 12 +23. Having heard all the evidence I accept and find that: + Injury causing death +The medical causes of death for all of the deceased were multiple injuries and burns. +Time, place and circumstances at or in which injury was sustained +All nine deceased died in the morning of 26 Feb 2013 during a hot-air balloon ride over Luxor City when the balloon caught fire during the flight after the landing procedure had started. The fire was due to hose fuel leak at the upper portion of the forward right hose connected to the burner number 193. Such fire also caused serious and direct injury to the balloon pilot who was unable to do anything to control the fire. +Conclusion as to the deaths +I find the conclusion as to the deaths of all deceased to be deaths by accident. +24. I now also read out the Particulars for the time being of each deceased required by the Birth and Deaths Registration Ordinance (Cap 174) to be registered concerning the death (See form 12 attached for each deceased). +Consideration of recommendation +25. Under section 44(2) of the Coroners Ordinance (Cap 504), the coroner at an inquest may make recommendation designed: +(a) to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held; +(b) to prevent other hazards to life disclosed by the evidence at the inquest; +(c) to bring to the attention of a person who may have power to take appropriate action any deficiencies in a system or method of work which are disclosed by the evidence at the inquest and which are of public concern. +26. The following are some features of the evidence which are helpful to me in considering recommendations to be made after the inquest. +Risk involved in HAB ride in Egypt +27. HAB is an activity not available in Hong Kong and has become a popular activity around the world and welcomed by Hong Kong tourists travelling abroad. As HAB was operated under apparently simple mechanics and the speed of the same is generally quite slow and steady for commercial/tourism purpose, the risk of the same was generally not recognized by tourists. Although Mr LAU of Kuoni testified that he, as a member of senior management responsible for designing tour, viewed that HAB ride involved moderate degree of risk, Kuoni has not conducted any risk assessment on this activity before offering them and there was no particular attention, guidelines or information concerning risk of taking part in this activity provided to their employees, including front desk receptionists or tour escorts nor their customers. LAU said that they basically relied on the fact that other companies were also offering HAB activities and they were aware that HAB was offered in many other countries and considered to be safe in general. +28. HAB is a type of aircraft and a highly regulated industry. Of course, each jurisdiction has its own civil authority to regulate this activity. It was emphasized at times by Mr Ozorio, SC, representing Kuoni, that HAB ride is a safe activity by quoting Mr Chadwick’s report: “the advancement in fabric technology and envelope rapid deflation systems has facilitated larger balloons to be operated with a high degree of safety and reliability.” However, since HAB ride is taken place in the air with considerable height, it undoubtedly involves a certain degree of risk. By giving a simple click in the internet will show a number of serious fatal HAB accidents occurred in the past around the world. That is why hot air ballooning needs stringent regulation on the airworthiness and operation of the balloon and pilot licensing scheme. In fact, as testified by Mr Chadwick, UK has developed a set of stringent regulations to ensure safety of air ballooning activities especially the commercial passenger carrying balloon has been vastly developed over the years around the world. The safety of and risk involved in this activity actually depend on how stringent such regulations are and how well the same are implemented. +29. It is of note that AAIC report did make a recommendation, at p.149 of the report, that: +“Issue necessary instructions to balloon companies to assure informing passengers when they reserve their flights that this kind of sports included some degree of risk and for the purpose of adventure in order that passengers would make their decisions from the beginning .” (my emphasis) +30. In relation to that, Mr Chadwick responded in his report that: +“Many hot-air balloon passenger flights are bought by a third party as a present, with the actual passenger not finding out about their flight until the day of the flight. However, it is accepted that flying as a passenger in a hot-air balloon involves certain different threats to that of flying on a commercial airliner, and the AAIC is correct that information as to the physical requirements of flying in a hot-air balloon needs to be given at the point of reservation. This would therefore have implications to tour operators and local representatives at resorts, etc.” (my emphasis) +Information about HAB ride provided by Kuoni to its staff +31. The present tour was the fifth Egypt tour Mr AU led as he testified. He started escorting Egypt tour since Sept 2012. He testified that before he led the first Egypt tour it was the experienced colleagues sharing to him local information about Egypt and he has not received any formal training or briefing relating to safety of leading tour in Egypt or taking part in hot air balloon activities. About half to one month prior to the 1st Egypt tour escorted by him in Sept 2012, experienced colleagues did mention to him briefly and casually in office how HAB was operated by wind, the flight distance and landing posture. Apart from that, no other information or training was given to him in respect of the risk of taking HAB ride. He was also told that people who had heart condition, hypertension and fear of height should not take part in HAB. +Information about HAB provided to tour members +32. In early 2013, Mr AU was assigned by Kuoni to host the “tea party” on 7 Feb 2013 for the present tour. By then, he did not know if he would be the tour escort of the tour. About a week before the departure, Mr AU was informed by Kuoni to escort the tour in question. +33. There is no dispute that the need for customers to purchase comprehensive travel insurance before departure is generally set out in the tour booking form and the receipts issued by Kuoni to the deceased. It was also reminded in the receipts, though in small prints, under the heading of “Important Notice” that customers are suggested to read carefully the coverage and relevant clauses in their insurance policies to ensure sufficient coverage in case of accident. I am also well aware that Kuoni was not allowed by the TIC nor did they put pressure upon or force customers to purchase Kuoni’s own Generali insurance. The question is whether the customers are provided with clear and sufficient information concerning the activity they are joining and the risk involved in it before they made an informed decision of participation. +34. AU said that during the tea party, among other information, there was a note named “Safety guidance of activities in Middle East and African area”, provided to tour members. On which there was a paragraph concerning taking HAB rides which stated to the effect that participants shall follow staff’s safety guidance and rules of activity. Participants shall only leave the balloon as directed by the staff upon landing of the balloon. +35. At the tea party, tour members were also provided with a Price list of Self-pay Activities in Middle East and Africa on which it was said relating to HAB ride: “Go on a hot air balloon ride in Luxor to view the beauty of Nile and Luxor. This activity includes breakfast and insurance. An aviation certificate will be issued: Approx. 45 minutes (the entire trip takes approx. 2.5 hrs: USD 190 for all age group” (my emphasis) +36. The information given to customers in the above price list: “this activity includes insurance” was ambiguous. When Senior Manager LAU was asked as to what it exactly meant, he said vaguely that might mean this activity included flying insurance taken by Sky Cruise and customers were covered by insurance when they take part in this HAB activity. LAU said they in fact just translated and copied the information stated on the Sky Cruise’s leaflet. In my view, this clause may let the customers misunderstand that their joining of this activity was covered by insurance which turned out to be not the case, as revealed from the evidence of this inquest. Should the members be warned more clearly and specifically that their insurance may not cover this HAB activity, their decision to join the activity may be changed. +37. This court is well aware of its limited jurisdiction. I am not concerned about why 6 deceased out of 9 did not buy Kuoni’s travel insurance but bought their own Comprehensive Travel Insurance from China Merchants Insurance Company Limited. Nor is this court attempting to explore the reasons why they were not insured. My concern is whether practicable recommendation could be made to prevent recurrence of similar fatalities. The ambiguous wording on the above optional self-pay activity price list about the HAB ride and the lack of sufficient information provided to the customers joining the HAB ride so that they could make better assessment of the risk may affect their choices of participating the activity. +38. On AU’s evidence, he said that when tour members were paying the fees the day before the ride, he had told them briefly information about the duration of the flight, what scenery to be seen and advised them not to join if they have heart condition, hypertension and fear of height. He has also shown pictures taken about the ride before to the tour members. Upon arrival at the taking-off place before they were approaching the balloon in question, he gave his group of 9 members some information as to the duration of the flight and landing posture. He also told them he would be taking pictures for them and taking care of their belongings. While the pilot of the HAB from Sky Cruise was conducting briefing session in English to 20 passengers before taking off, no instant interpretation was given by AU because he saw no need as his had given his own briefing to the deceased earlier on. +Information concerning HAB ride acquired by Kuoni +39. In fact, after hearing the evidence, it was not surprising why not much information relating to HAB ride was given to the employees and customers by Kuoni. On LAU’s evidence, even the senior management designing the tour did not have much information about the HAB ride. Apart from having been told by Paradise that Sky Cruise was licensed, insured and experienced, Lau basically told the court that he had never discussed the HAB ride among the senior management before offering this activity. Neither did he nor Kuoni as far as he knew conduct any formal evaluation after this incident. +40. It was submitted by Mr Ozorio, SC for Kuoni that there were no discussion nor query raised among tour members concerning risk of +HAB ride and that they could easily do researches on their own should they wish so. That, as submitted, showed that the deceased were not concerned with the risk of HAB ride. I am afraid I cannot agree with that. It is not hard to observe that people who tend to join travel tour, as opposed to planning their own trip, are those who are either more senior in age or do not prefer to plan by their own. Participants of travel tours tend to leave the planning and entrust all the arrangement to the travel agent company and the tour escort. That may require higher responsibility from the travel company to conduct sufficient risk assessment before offering the activities and to provide sufficient information to the customers. +41. It is of note that this case happened in Egypt which is not a developed and advanced country like the United Kingdom, Australia or New Zealand where HAB industry is long established and governed by stringent regulatory system. It is common sense that an activity is considered to be safe in one country does not necessarily mean that it is safely operated in another. +42. As a matter of fact, it was not the first HAB accident occurred in Luxor. It is not disputed that there was a major HAB accident happened in Luxor as a result of which 16 passengers were injured which caused temporary suspension of the activity. I consider that Hong Kong travel companies apart from designating a DMC to appoint and liaise with the local service providers should also acquire sufficient information of such activity before offering the activities that involved a certain degree of risk. +43. Instead of relying on the fact that other companies are also providing the same activity, travel companies should acquire sufficient information for its own risk assessment before providing such activity. The information is also essential for training the frontline staff. More importantly, customers should be well informed of the information before taking part in such activity involving certain degree of risk. In my view, the list of basic information about the HAB ride that should be acquired by the travel company and provided to the customers includes but not limited to: +- Height and duration of the HAB flight; +- Pictures of HAB showing the envelope, basket and burners of the HAB; +- Size of the HAB; +- Brief information about material and mechanics of operation of the HAB; +-Information about experience and reputation of the company providing the HAB ride; +- Any HAB accidents happened before in the destination and any of such related to the service provider; +- The licensing system in the country as compared with other worldly recognized country. +44. In fact, it is stated at paragraph 9.3 of Code of Conduct for Outbound Tour Escort issued by TIC in October 2007 that: “Prior to arranging self-pay activities, tour escort shall explain clearly to tour participants the content, duration, fee, safety and responsibility of such activities.” Checklist 4.2 attached to the same Code also provides a few items for checking in respect of optional activities. +Selecting and supervising the local destination management company and/or service provider +45. From the evidence of LAU, Senior manager of Kuoni responsible for product designing and tour planning, Kuoni started to offer HAB ride in 2008. Kuoni stopped offering HAB immediately after this accident, but still offer Egypt tour until June 2013. He said that Kuoni relied upon the fact that other Hong Kong travel companies were also offering HAB ride before they were offering the same. He was aware that HAB ride was also provided in other countries around the world and was considered to be safe by other companies. He said that some of their colleagues also had the experience of HAB ride in other companies before they joined Kuoni. +46. When asked if there was any risk assessment of HAB ride in Egypt done by him or Kuoni as far as he knew before the accident, LAU replied negative and said that they usually relied on the local licensing system and if the company was insured. He was informed by Paradise that Sky Cruise was licensed and insured (being one of criteria of obtaining license). Surprisingly, Kuoni has not even obtained a copy of those documents but just relied on Paradise words until the accident occurred. He was told by Paradise that Sky Cruise was an experienced operator of HAB and started to operate HAB activities in 90s. Kuoni basically relied on the choice and information given by Paradise. LAU said that they also relied on feedback from tour escorts and customers when considering the quality of service provided by local company. +47. Despite the absence of any risk assessment done by LAU/Kuoni before offering HAB ride, he agreed that HAB contained certain degree of risk. He considered HAB ride as an activity having moderate degree of risk. As to what training, if any, was given to tour escort or front desk staff, he said there would only be casual sharing given by experienced colleagues to junior ones. Kuoni did not have particular safety guidelines or briefing of HAB ride provided to staff. During the tour in Egypt, AU basically was responsible for liaisoning with the local guide/assistant there called Mostafa and relied on him for all the local arrangements. +48. Miss Scarlet So, the person in charge of Paradise in Hong Kong testified that she had not received any training on travel industry. She worked for Osama, founder of Paradise in Egypt, since 2005 through an introduction by a common friend. She did not have any travel or working experience in Egypt. She, although being the person in charge of Paradise in Hong Kong and having the title as Regional Manager, basically said that she was not more than a mail box transferring message between Kuoni and Osama. In relation to the choosing Sky Cruise, she said it was Osama’s choice and she had no idea why it was chosen. She said there was no discussion between Kuoni and her on HAB activities. Before the accident, she has never given any copy of Sky Cruise’s license or insurance but just told Kuoni that Sky Cruise was chosen as the HAB service provider upon Osama’s instruction. +49. A Risk Solutions Manual for Travel Industry in Hong Kong was issued by TIC in February 2008. Paragraph A1.1.1 of the Manual provided a Supplier selection criteria checklist. However, the checklist does not cover present situation in which the Hong Kong travel company has engaged a DMC to select and arrange with the local service providers. + +50. Despite the fact that Kuoni was told by Paradise that Sky Cruise was an experienced service provider with reputation, it was revealed from the Egyptian investigation that the maintenance carried out at Sky cruise did not always refer to the appropriate part numbers or serial numbers, as per the full maintenance procedures; for example: absence of record of the 5th tank (for inflating the balloon) and unclear basket number. Further, gas leakage appeared to be a common problem as testified by the staff of balloon companies, which did not appear to cause serious concern by the company, which seemed to be quite contrary to the stringent UK reporting system as testified by Mr. Chadwick. + +51. Regarding operation of the present HAB, it was also revealed that the pilot was allowed to take off, despite absence of the maintenance engineer and the operation manager and that he was not able to contact the control tower until 10 minutes after taking off. When the pilot was asked by the investigation team about the dissimilarity between his pre-departure check signature and his previous signature, he claimed that he would use several signatures in order not to be imitated! Mr. Chadwick could not help expressing his concern as to why anyone would want to imitate a pre-departure check signature during normal operation. Also, no summary or translation of pilot briefing was supplied to the passengers before taking off. It was however recommended by Mr. Chadwick that the use of laminated passenger safety briefing cards should complement the pilot’s briefing to passengers. The use of diagrams and briefing cards in major world language should be provided. + +52. My pointing out the above observation made after Egyptian investigation was not because I wanted to discuss or determine the fault or liability, but to show the danger of Hong Kong travel companies simply replying on words of DMC without conducting its own risk assessment. It is equally important for Hong Kong travel companies to properly select and supervise the service providers even after a DMC has been engaged. +53. Given the highly technical nature of HAB operation and the fact that the inquest does not have the advantage of hearing direct evidence, this court is not in the best position to make any conclusion or comments on the requirement of a safe HAB maintenance or operation. +54. Upon hearing this inquest, I reckon that there is at present a lacuna in TIC’s guidance on Hong Kong travel companies’ duty and responsibility on local service providers when DMC is engaged. I note that there is quite a detailed list for TIC members to select local service providers, however such manual does not cover situation when travel agent companies have entrusted a local DMC. +55. Apart from telling me that we should trust the licensing system of each country and it is very difficult for Hong Kong travel company to monitor local service providers as well as it is a worldwide common practice to engage a DMC to do the work for travel companies, Mr. Tung of TIC basically gave me no suggestion nor assistance as to how the service of Hong Kong travel companies can be improved and safety of Hong Kong customers be better safeguarded. +56. To my surprise, both Kuoni and TIC have never conducted any evaluation of the case until the present inquest. Neither has TIC done anything to review the existing guidelines. More than three years have lapsed since the date of this tragic event. It is disappointing to learn that not only the travel company and TIC were not able to realize the risk involved in this particular activity showed by the lack of risk assessment, they were also not alerted after loss of nine precious lives. That in a way shows how insensitive the Hong Kong travel industry is to the well-being of customers. Regardless of whether this tragedy could possibly be avoided, the cursory attitude in assessing risk and reflecting after the accident as showed from the testimony given by LAU being senior management of Kuoni, given its reputation as one of the most high-end travel companies in Hong Kong, was unsatisfactory in my view. Similarly, I consider TIC’s reaction after the accident to be too slow and attitude too passive. The AAIC report was issued in December 2013 and I expect TIC should have looked into the matter thoroughly and reviewed the present guidelines on outbound activities involving risk much earlier instead of waiting for the result of this inquest. +57. Further, I consider that information or assistance currently provided by TIC to travel companies and more importantly to customers as to risks involved in various activities operated at various countries to be insufficient. +Recommendations to Travel Industry Council (TIC) + +58. Analyzed as the above, I now recommend: + +TIC to conduct a thorough research and collect data from the industry so as to list out popular activities operated in different countries offered by travel companies involving certain degree of risk. TIC to categorize the degree of risk in respect of different activities provided in different countries for industry as reference. Such list should be updated from time to time; + +TIC to set out clear guidelines for travel companies as to the necessary information of activities involving certain degree of risk to be provided to customers before taking part in such activities; + +TIC to set out clear and specific guidelines for travel companies that customers should be reminded that their travel insurance may not cover activities involving certain degree of risk; + +TIC to look into travel companies’ duty and responsibility in selecting and supervising the local service providers and review the existing guidelines when destination management companies are engaged; + +TIC to set out new guidelines on travel companies’ duty and responsibility to supervise destination management companies; + +TIC to set out safety guidance and advertise to customers as to the importance of obtaining details of travel policy insurance and information on activities involving risk before enrolment. + +Recommendations to Kuoni + +59. I also recommend: + +Kuoni to obtain sufficient information from local service providers and conduct thorough risk assessment on activities involving certain degree of risk provided to customers before offering the same; + +Kuoni to conduct thorough evaluation after every major accident taking place during tours provided by them so as to find out the cause of the accident and consider if there is anything that can be done to improve the quality and safety of service provided to customers. + +Kuoni to provide sufficient information to customers about activities involving certain risk and remind them in more specific and clear terms that activities involving risk may not be covered by their travel insurance; + +Kuoni to provide more training and information to front desk staff, including receptionists and tour escorts, so that they can be better equipped to explain the risk involved in activities provided by the company; + +Kuoni to set out clear criteria for selecting destination management companies and local service providers with first hand information and to closely monitor the service provided by destination management companies and local service providers. + +60. Both TIC and Kuoni need to reply the Coroner in writing in three months’ time as to 1) whether the above recommendations are accepted and if yes 2) what steps have been taken to implement the recommendations and 3) reasons if the recommendations are not accepted. + +61. Lastly, let me offer my deepest condolence again to the next of kin for their loss of loved ones and also thank you all for attending this inquest. I cannot even try to imagine the difficult journey you have gone through and dare not expect that by having this inquest you will be soothed in anyway. What I sincerely hope is that you will find this inquest helpful in some way having been informed of more details about the incident. I am indebted to the Hong Kong police, Mr Brook and Mr IP, SPP of Department of Justice, for their unfailing support in this investigation despite all the difficulties. I also thank counsel’s assistance from all parties. Lastly, I need to deliver my gratitude to the senior interpreters, Mr Wong and Mr Lai and the Clerk to Coroner, Miss On for their invaluable assistance throughout the hearing. + +62. If parties and the press wish, a copy of this inquisition can be obtained from my clerk after the court rises. A press summary is also available for the press. The inquisition and press summary will also be uploaded to the Judiciary website very soon after today’s hearing. The inquest is hereby closed. + + + +June CHEUNG +Coroner + + + + +Representation: + +Mr Michael Ozorio, SC instructed by Messrs Paul C. K. Tang & Chiu for KUONI Travel (China) LTD. + +Mr Bernard Murphy of Messrs Howse Williams Bowers for Ultramagic S.A. + +Mr Foster Yim instructed by Messrs Wan Yeung Hau & Co. for next of kin of Ho Oi Hing, Ho Oi Ying, Ho Oi Ming, Tang Yuk Ling, Siu Chi Man & Kwan Pui Man Eleni + +Mr Edward Brook and Mr Cliff Ip of Department of Justice as Coroner’s Officer diff --git a/en_cases_hkcrc/2016_HKCrC_5/case.json b/en_cases_hkcrc/2016_HKCrC_5/case.json new file mode 100644 index 0000000..9b61fb2 --- /dev/null +++ b/en_cases_hkcrc/2016_HKCrC_5/case.json @@ -0,0 +1,26 @@ +{ + "Date": "7 Jun, 2016", + "Action No.": "CCDI350/2013", + "Neutral Cit.": "[2016] HKCrC 5", + "case_title": "RE HO OI HING AND OTHERS", + "page_title": "RE HO OI HING AND OTHERS | [2016] HKCrC 5 | HKLII", + "case_history": [ + { + "name": "CCDI350/2013", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2013/350" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkcrc/2016/5", + "neutral_cit": "[2016] HKCrC 5", + "court_code": "HKCRC", + "content": "CCDI346/2013 RE HO OI HING AND OTHERS\nPress Summary (English)\nPress Summary (Chinese)\nCCDI 346-354/2013 (PW)\nIN THE CORONER’S COURT\nTHE HONG KONG SPECIAL ADMINSTRATIVE REGION\n(Case No. CCDI 346-354 of 2013)\nHO Oi-hing\nHO Oi-ying\nHO Oi-ming\nTANG Yuk-ling\nSIU Chi-man\nKWAN Pui-man Eleni\nPOON Lau-tim\nTO Sau-ching\nPOON Tak-sze\nCoram: June Cheung, Coroner\nDates of hearing: 15-26 Feb, 2 March, 9 March, 31 March and 23 May 2016\nDate of delivery of inquisition: 7 June 2016\n____________________\nI N Q U I S I T I O N\n_____________________\nIntroduction\n1.\nI have mentioned at the commencement of and during this inquest, but I will reiterate here: that the purpose of this Inquest is to inquire into the cause of the death and the circumstances connected with the death. We are not concerned with the fault, civil liability or compensation here. Although we have looked into matters concerning travel insurance as well as responsibility of travel agent at different locality, those, as I have mentioned more than once, were to facilitate me in making practicable recommendation to prevent future tragedy. In fact, the law expressly prohibits any conclusion being framed in such a way as to determine any question of civil liability. Therefore the question as to whether or not there was negligence such as to give rise to an action for damages or compensation is not a matter for this court; - that is a matter for the civil courts. My role here is to determine simply: what happened and what did not happen as well as making practicable recommendation having the hard lesson learnt.\n2.\nThe standard of proof I apply in this inquest, unless I specify otherwise, when deciding upon all matters is what known is as “on a balance of probabilities”. In other words, is it more likely than not that a fact existed or an event occurred.\n3.\nDespite the difficulties encountered during the investigation, namely the fact that all eye witnesses of incident were not available, the court was not able to examine the real exhibits and that Hong Kong itself does not have experience or expertise in hot-air ballooning, this court has fortunately obtained two detailed reports from the Egyptian authority which were admitted as evidence, namely, 1) the investigation report issued by the Egyptian Ministry of Civil Aviation in December 2013 (“\nAAIC report\n”) governed by Annex 13 to the Convention on International Civil Aviation and 2) the Public prosecution report signed by the “President of the Appeals, Acting Chairman of the Technical Officer to the Officer of the Attorney General of the Arab Republic of Egypt (“\nProsecution report\n”) containing the transcript and memorandum from the General Prosecutor’s office. The two reports are in my view thorough, detailed and professionally produced by persons with the necessary skills, knowledge and expertise. We also have the benefit of having Mr. Chadwick, General Aviation Flight Standard Officer (Balloon Operations) from the UK Civil Aviation Authority, to assist this court to understand the two reports and operation of hot air balloon (“\nHAB”\n) in general. I consider Mr. Chadwick’s expert evidence was most helpful, impartial and professional.\n4.\nDuring the inquest, we have called 9 witnesses: they were Mr Wilson AU (CW1) (“\nAU\n”) and LAU Tak ping (CW3) (“\nLAU\n”) from Kuoni Travel (“\nKuoni\n”); Mr Wong Kong Sing (CW2), one of the tour member who did not join the optional hot air balloon ride; Mr Joseph Tung, Chairman of the Travel Industry Council (“\nTIC\n”) (CW4), Mr Chin Shing (CW5) who was responsible for making the HAB model for the purpose of this inquest and two Arabic translators for clarification of some of the contents of the reports (CW6 and CW7); Mr Chadwick (CW8), the HAB expert mentioned above and finally Miss Scarlett SO Lai-kuen (CW9), person in charge in Hong Kong of Paradise Travel (“\nParadise\n”) which was the Destination Management Company (“\nDMC”\n) engaged by Kuoni for this Egypt tour. Their evidence covered a number of issues in great details that apparently might not be strictly relevant to the findings at inquest set out in Form 12 but essential for this court to understand the background of the case and finally making recommendation to prevent future similar tragedy.\nGeneral course of event leading to the deaths\n5.\nThe present case may be one of the most tragic incidents happened while Hong Kong citizens were travelling abroad. As a matter of fact, it was the deadliest hot air ballooning disaster in history resulted in 19 deaths, 9 of which were the deceased in the present inquest. The general course of event was largely undisputed. All the nine deceased, together with 6 other tour members who did not join the HAB ride, were joining a 10 days’ tour to Egypt departing on 22 February 2013 organized by Kuoni. The HAB ride in question took place in Luxor city and was one of the self-pay optional activities offered in the tour. Kuoni has engaged Paradise as their DMC responsible for the arrangement in Egypt and Paradise has chosen Egyptian Airship and Balloon-Sky Cruise Company (“\nSky Cruise\n”) as the local HAB service provider.\n6.\nAt small hours on 26 Feb 2013, the 9 deceased, AU, tour escort of Kuoni, and Mostafa, assistant from Paradise, set off from hotel to the place where the balloon would take off. It was around 0615 hours local time when the balloon took off with 20 passengers. When the balloon had flown for more than 35 minutes, the pilot instructed the ground crew to receive the drop line starting the landing procedure. The HAB suddenly caught fire in the air which caused major injury to the pilot who exited the basket followed by a few passengers. While the balloon was still burning with less weight on the basket, it kept ascending until the envelope was so badly damaged, incapable of supporting the basket and fell on the field. As a result of the incident, 19 passengers were dead, 9 of which were the deceased of the present inquest. The pathologists found that the injury causing each of their death to be multiple injuries and burns.\nCause of the accident\n7.\nThe HAB in question was manufactured in 2004 by a Spanish balloon company called Ultramagic and registered as SU 283. The balloon type was “Ultramagic N425” and Sky Cruise bought it in 2005 from a Sweden operator. The balloon was operated by wind action effects for horizontal movements while vertical movements control was made through the control of the burners by the balloon pilot.\n8.\nOn the evidence, the take-off procedures seemed to be normal and the balloon had flown for about 35 minutes before the fire started in the course of landing.\nEvidence from the Pilot\n9.\nThe only surviving eye-witness of the event who has given evidence to the Egyptian authority was the pilot of the HAB in question, Mr Momen Murad Ali Hussein, Egyptian, aged 29. The other surviving passenger was not willing to give evidence. The pilot has held a balloon pilot commercial licence issued by the Egyptian Civil Aviation Authority since 2006. He was firstly interrogated by the authority when he was badly injured in bed after the accident. He was further taxed for the purpose of prosecution in April 2013 and he gave a statement to the investigation authority again on 17 June 2013\n[1]\n. The prosecution was not proceeded with finally\n[2]\n. His evidence was contained in the AAIC report\n[3]\nand prosecution report\n[4]\n.\n10.\nHe stated that because there was no maintenance manager available at the time, he took a look at the balloon and ensured the hoses were safely installed using sense of smell before taking off. At the time of taking off, he contacted the control tower but no one was there to answer him. He said however the take-off procedures went smoothly and the balloon kept flying like usual until it started to land at around 10 meters height from the ground. At the beginning of the landing, the fuel quantity for both aft cylinders showed ¼ capacity, whilst the forward burners were not used except for the “pilot light”. After about 35 minutes, the pilot used the forward cylinders. All of a sudden, a fire hit him on his back and ejected him from the balloon. He was not able to take any measures to control the fire, neither using the extinguisher nor turning off the valve of the gas cylinder.\n11.\nThe pilot also stated that at the beginning of the landing, he dropped the rope out of the basket before he heard a loud sound of a fire flame. He did not notice any interference between the rope and any of the hoses. The location of the drop line rope is far from the hoses, he believed it cannot be scrambled around them. Neither did he smell any gas nor hear any explosion sound of any part. All he heard was the sound of a fire flame. The fire sound was similar to the spraying sound coming out of an “insect repellant pressurized can”. He said the fire came from the forward burners but was not able to identify the exact location of the fire source. The fire was from left side and his injuries mainly on the left side. The fire was in one direction of yellow color.\n12.\nHe could not conclusively identify the source of the flame. He believed that the cause of accident could be as a result of defect of\n[5]\none of the hoses connecting the cylinder to the burner.\n13.\nThe Egyptian investigation\n[6]\nalso showed that the surviving pilot was suffering from burn wounds scattered on his head, his face, his back, his left upper limb and right upper arm, and upper chest and abdomen and lower limbs. Skin grafting operations were conducted.\nMaintenance of the hoses\n14.\nThe maintenance manual states the need for a special inspection of the hoses every ten years and to check if there are any cuts or damage.\n[7]\nIt is said that the maintenance manager conducted a 100 hour annual inspection dated 5 October 2012 under the supervision of Egyptian Civil Aviation Authority and the Validity Certificate was renewed for the period of 13 October 2012 until 12 October 2013\n[8]\n.\n15.\nWithin the AAIC analysis\n[9]\n, it is stated that maintenance carried out by Sky Cruise did not always refer to the appropriate part number or serial number, as per the full maintenance procedures.\n[10]\n16.\nOn the other hand, Hasan Muhammad Kinnawi, the assistant of the Ground Team Head for the HAB who was responsible for supervising the workers in taking off and landing, stated that gas leakage was a usual occurrence in his job, and they usually noticed the leakage by smell it and would change it without mentioning of any reporting system. He also said that the operation manager (ground team head) and the maintenance engineer were both absent on the day of the incident for unknown reasons\n[11]\n. The operation manager of Viking Company, another HAB company in Luxor, also said that gas leakage of HAB happened a lot.\n[12]\n17.\nMr Chadwick commented\n[13]\nthat the hose that was attached to the burner that was made in 2005 and may have accumulated high flight hours may not necessarily be directly a contributing factor to the accident. Hoses with many more confirmed flying hours and much older are being regularly used in the world hot air balloon fleet. At the time of this report, the UK CAA are unaware of another hot air balloon accident that is attributed to an in-flight hose failure of the nature specified in the report, this being largely due to the stringent inspection and maintenance requirements in of HAB activities in UK and the implementation of it.\nConclusions from the Egyptian authority\n18.\nIt is stated in AAIC report (Exhibit C30), at page 147, that:\n“The probable cause for the accident as seen by the investigation committee is due to a (1)\nhose fuel leak\nat the upper portion of the forward right hose connected to burner number 193 capturing its ignition source from burner’s fire causing a fire that caused a major and direct injury to the (2)\nballoon captain\n” (my emphasis)\n19.\nNevertheless, it could not be ascertained from the investigation carried out by the Egyptian authority if the hose fuel leak was as a result of internal malfunction of the hose due to lack of inspection and/or maintenance or if there was an outer force pulling off the hose from the burner, e.g. tangling by drop line at the time of landing.\n20.\nThe AAIC report also considered two contributing factors to the accident at page 147 of the report:\n“1. Maintenance actions that were carried out on the hoses could not indicate the need to replace the hose that was the cause of the accident”\n2. The part number of the hose connected to the burner 193 was for a hose made in 2005 and therefore it has accumulated high flight hours and sometimes under adverse conditions”\n21.\nOn the other hand, the Spanish Civil Aviation Commission of Accidents (\nCIAIAC\n) made their point in their letter\n[14]\n, as the accredited representative from Spain in the Egyptian investigation, that:\n“the simultaneity or coincidence in time of the action of pulling down the balloon by the ground crew through the drop line rope (handling line) and the start of the gas leak and a further fire should be considered as a significant condition for the accident scenario under which the fire broke out”\n22.\nFurther conclusion by CIAIAC\n[15]\nwas that:\n“- Operator maintenance discrepancy issues and certain lack of maintenance control were evident during the AAIC investigation;\n- With regard to this particular flight, the pre-departure check had not been fully completed by the balloon pilot.”\nFinding at inquest in Form 12\n23.\nHaving heard all the evidence I accept and find that:\nInjury causing death\nThe medical causes of death for all of the deceased were\nmultiple injuries and burns.\nTime, place and circumstances at or in which injury was sustained\nAll nine deceased died in the morning of 26 Feb 2013 during a hot-air balloon ride over Luxor City when the balloon caught fire during the flight after the landing procedure had started. The fire was due to hose fuel leak at the upper portion of the forward right hose connected to the burner number 193. Such fire also caused serious and direct injury to the balloon pilot who was unable to do anything to control the fire.\nConclusion as to the deaths\nI find the conclusion as to the deaths of all deceased to be\ndeaths by accident.\n24.\nI now also read out the Particulars for the time being of each deceased required by the Birth and Deaths Registration Ordinance (\nCap 174\n) to be registered concerning the death (See form 12 attached for each deceased).\nConsideration of recommendation\n25.\nUnder\nsection 44\n(2) of the\nCoroners Ordinance\n(\nCap 504\n), the coroner at an inquest may make recommendation designed:\n(a) to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held;\n(b) to prevent other hazards to life disclosed by the evidence at the inquest;\n(c) to bring to the attention of a person who may have power to take appropriate action any deficiencies in a system or method of work which are disclosed by the evidence at the inquest and which are of public concern.\n26.\nThe following are some features of the evidence which are helpful to me in considering recommendations to be made after the inquest.\nRisk involved in HAB ride in Egypt\n27.\nHAB is an activity not available in Hong Kong and has become a popular activity around the world and welcomed by Hong Kong tourists travelling abroad. As HAB was operated under apparently simple mechanics and the speed of the same is generally quite slow and steady for commercial/tourism purpose, the risk of the same was generally not recognized by tourists. Although Mr LAU of Kuoni testified that he, as a member of senior management responsible for designing tour, viewed that HAB ride involved moderate degree of risk, Kuoni has not conducted any risk assessment on this activity before offering them and there was no particular attention, guidelines or information concerning risk of taking part in this activity provided to their employees, including front desk receptionists or tour escorts nor their customers. LAU said that they basically relied on the fact that other companies were also offering HAB activities and they were aware that HAB was offered in many other countries and considered to be safe in general.\n28.\nHAB is a type of aircraft and a highly regulated industry. Of course, each jurisdiction has its own civil authority to regulate this activity. It was emphasized at times by Mr Ozorio, SC, representing Kuoni, that HAB ride is a safe activity by quoting Mr Chadwick’s report: “the advancement in fabric technology and envelope rapid deflation systems has facilitated larger balloons to be operated with a high degree of safety and reliability.”\n[16]\nHowever, since HAB ride is taken place in the air with considerable height, it undoubtedly involves a certain degree of risk. By giving a simple click in the internet will show a number of serious fatal HAB accidents occurred in the past around the world. That is why hot air ballooning needs stringent regulation on the airworthiness and operation of the balloon and pilot licensing scheme. In fact, as testified by Mr Chadwick, UK has developed a set of stringent regulations to ensure safety of air ballooning activities especially the commercial passenger carrying balloon has been vastly developed over the years around the world\n[17]\n. The safety of and risk involved in this activity actually depend on how stringent such regulations are and how well the same are implemented.\n29.\nIt is of note that AAIC report did make a recommendation, at p.149 of the report,\n[18]\nthat:\n“Issue necessary instructions to balloon companies to assure informing passengers when they reserve their flights that this kind of sports\nincluded some degree of risk\nand for the purpose of adventure in order that passengers would make their decisions from the beginning .” (\nmy emphasis\n)\n30.\nIn relation to that, Mr Chadwick responded in his report\n[19]\nthat:\n“Many hot-air balloon passenger flights are bought by a third party as a present, with the actual passenger not finding out about their flight until the day of the flight. However, it is accepted that flying as a passenger in a hot-air balloon\ninvolves certain different threats\nto that of flying on a commercial airliner, and the AAIC is correct that information as to the physical requirements of flying in a hot-air balloon needs to be given at the point of reservation. This would therefore have implications to tour operators and local representatives at resorts, etc.” (\nmy emphasis\n)\nInformation about HAB ride provided by Kuoni to its staff\n31.\nThe present tour was the fifth Egypt tour Mr AU led as he testified. He started escorting Egypt tour since Sept 2012. He testified that before he led the first Egypt tour it was the experienced colleagues sharing to him local information about Egypt and he has not received any formal training or briefing relating to safety of leading tour in Egypt or taking part in hot air balloon activities. About half to one month prior to the 1\nst\nEgypt tour escorted by him in Sept 2012, experienced colleagues did mention to him briefly and casually in office how HAB was operated by wind, the flight distance and landing posture. Apart from that, no other information or training was given to him in respect of the risk of taking HAB ride. He was also told that people who had heart condition, hypertension and fear of height should not take part in HAB.\nInformation about HAB provided to tour members\n32.\nIn early 2013, Mr AU was assigned by Kuoni to host the “tea party” on 7 Feb 2013 for the present tour. By then, he did not know if he would be the tour escort of the tour. About a week before the departure, Mr AU was informed by Kuoni to escort the tour in question.\n33.\nThere is no dispute that the need for customers to purchase comprehensive travel insurance before departure is generally set out in the tour booking form\n[20]\nand the receipts issued by Kuoni to the deceased\n[21]\n. It was also reminded in the receipts, though in small prints, under the heading of “Important Notice” that customers are suggested to read carefully the coverage and relevant clauses in their insurance policies to ensure sufficient coverage in case of accident. I am also well aware that Kuoni was not allowed by the TIC\n[22]\nnor did they put pressure upon or force customers to purchase Kuoni’s own Generali insurance. The question is whether the customers are provided with clear and sufficient information concerning the activity they are joining and the risk involved in it before they made an informed decision of participation.\n34.\nAU said that during the tea party, among other information, there was a note named “Safety guidance of activities in Middle East and African area”\n[23]\n, provided to tour members. On which there was a paragraph concerning taking HAB rides which stated to the effect that participants shall follow staff’s safety guidance and rules of activity. Participants shall only leave the balloon as directed by the staff upon landing of the balloon.\n[24]\n35.\nAt the tea party, tour members were also provided with a Price list of Self-pay Activities in Middle East and Africa\n[25]\non which it was said relating to HAB ride: “Go on a hot air balloon ride in Luxor to view the beauty of Nile and Luxor.\nThis activity includes breakfast and insurance\n. An aviation certificate will be issued: Approx. 45 minutes (the entire trip takes approx. 2.5 hrs: USD 190 for all age group” (\nmy emphasis\n)\n36.\nThe information given to customers in the above price list: “this activity includes insurance” was ambiguous. When Senior Manager LAU was asked as to what it exactly meant, he said vaguely that might mean this activity included flying insurance taken by Sky Cruise and customers were covered by insurance when they take part in this HAB activity. LAU said they in fact just translated and copied the information stated on the Sky Cruise’s leaflet\n[26]\n. In my view, this clause may let the customers misunderstand that their joining of this activity was covered by insurance which turned out to be not the case, as revealed from the evidence of this inquest. Should the members be warned more clearly and specifically that their insurance may not cover this HAB activity, their decision to join the activity may be changed.\n37.\nThis court is well aware of its limited jurisdiction. I am not concerned about why 6 deceased out of 9 did not buy Kuoni’s travel insurance but bought their own Comprehensive Travel Insurance from China Merchants Insurance Company Limited. Nor is this court attempting to explore the reasons why they were not insured. My concern is whether practicable recommendation could be made to prevent recurrence of similar fatalities. The ambiguous wording on the above optional self-pay activity price list\n[27]\nabout the HAB ride and the lack of sufficient information provided to the customers joining the HAB ride so that they could make better assessment of the risk may affect their choices of participating the activity.\n38.\nOn AU’s evidence, he said that when tour members were paying the fees the day before the ride, he had told them briefly information about the duration of the flight, what scenery to be seen and advised them not to join if they have heart condition, hypertension and fear of height. He has also shown pictures taken about the ride before to the tour members. Upon arrival at the taking-off place before they were approaching the balloon in question, he gave his group of 9 members some information as to the duration of the flight and landing posture. He also told them he would be taking pictures for them and taking care of their belongings. While the pilot of the HAB from Sky Cruise was conducting briefing session in English to 20 passengers before taking off, no instant interpretation was given by AU because he saw no need as his had given his own briefing to the deceased earlier on.\nInformation concerning HAB ride acquired by Kuoni\n39.\nIn fact, after hearing the evidence, it was not surprising why not much information relating to HAB ride was given to the employees and customers by Kuoni. On LAU’s evidence, even the senior management designing the tour did not have much information about the HAB ride. Apart from having been told by Paradise that Sky Cruise was licensed, insured and experienced, Lau basically told the court that he had never discussed the HAB ride among the senior management before offering this activity. Neither did he nor Kuoni as far as he knew conduct any formal evaluation after this incident.\n40.\nIt was submitted by Mr Ozorio, SC for Kuoni that there were no discussion nor query raised among tour members concerning risk of HAB ride and that they could easily do researches on their own should they wish so. That, as submitted, showed that the deceased were not concerned with the risk of HAB ride. I am afraid I cannot agree with that. It is not hard to observe that people who tend to join travel tour, as opposed to planning their own trip, are those who are either more senior in age or do not prefer to plan by their own. Participants of travel tours tend to leave the planning and entrust all the arrangement to the travel agent company and the tour escort. That may require higher responsibility from the travel company to conduct sufficient risk assessment before offering the activities and to provide sufficient information to the customers.\n41.\nIt is of note that this case happened in Egypt which is not a developed and advanced country like the United Kingdom, Australia or New Zealand where HAB industry is long established and governed by stringent regulatory system. It is common sense that an activity is considered to be safe in one country does not necessarily mean that it is safely operated in another.\n42.\nAs a matter of fact, it was not the first HAB accident occurred in Luxor. It is not disputed that there was a major HAB accident happened in Luxor as a result of which 16 passengers were injured which caused temporary suspension of the activity. I consider that Hong Kong travel companies apart from designating a DMC to appoint and liaise with the local service providers should also acquire sufficient information of such activity before offering the activities that involved a certain degree of risk.\n43.\nInstead of relying on the fact that other companies are also providing the same activity, travel companies should acquire sufficient information for its own risk assessment before providing such activity. The information is also essential for training the frontline staff. More importantly, customers should be well informed of the information before taking part in such activity involving certain degree of risk. In my view, the list of basic information about the HAB ride that should be acquired by the travel company and provided to the customers includes but not limited to:\n- Height and duration of the HAB flight;\n- Pictures of HAB showing the envelope, basket and burners of the HAB;\n- Size of the HAB;\n- Brief information about material and mechanics of operation of the HAB;\n-Information about experience and reputation of the company providing the HAB ride;\n- Any HAB accidents happened before in the destination and any of such related to the service provider;\n- The licensing system in the country as compared with other worldly recognized country.\n44.\nIn fact, it is stated at paragraph 9.3 of Code of Conduct for Outbound Tour Escort issued by TIC in October 2007\n[28]\nthat: “Prior to arranging self-pay activities, tour escort shall explain clearly to tour participants the content, duration, fee, safety and responsibility of such activities.” Checklist 4.2 attached to the same Code also provides a few items for checking in respect of optional activities.\nSelecting and supervising the local destination management company and/or service provider\n45.\nFrom the evidence of LAU, Senior manager of Kuoni responsible for product designing and tour planning, Kuoni started to offer HAB ride in 2008. Kuoni stopped offering HAB immediately after this accident, but still offer Egypt tour until June 2013. He said that Kuoni relied upon the fact that other Hong Kong travel companies were also offering HAB ride before they were offering the same. He was aware that HAB ride was also provided in other countries around the world and was considered to be safe by other companies. He said that some of their colleagues also had the experience of HAB ride in other companies before they joined Kuoni.\n46.\nWhen asked if there was any risk assessment of HAB ride in Egypt done by him or Kuoni as far as he knew before the accident, LAU replied negative and said that they usually relied on the local licensing system and if the company was insured. He was informed by Paradise that Sky Cruise was licensed and insured (being one of criteria of obtaining license). Surprisingly, Kuoni has not even obtained a copy of those documents but just relied on Paradise words until the accident occurred. He was told by Paradise that Sky Cruise was an experienced operator of HAB and started to operate HAB activities in 90s. Kuoni basically relied on the choice and information given by Paradise. LAU said that they also relied on feedback from tour escorts and customers when considering the quality of service provided by local company.\n47.\nDespite the absence of any risk assessment done by LAU/Kuoni before offering HAB ride, he agreed that HAB contained certain degree of risk. He considered HAB ride as an activity having moderate degree of risk. As to what training, if any, was given to tour escort or front desk staff, he said there would only be casual sharing given by experienced colleagues to junior ones. Kuoni did not have particular safety guidelines or briefing of HAB ride provided to staff. During the tour in Egypt, AU basically was responsible for liaisoning with the local guide/assistant there called Mostafa and relied on him for all the local arrangements.\n48.\nMiss Scarlet So, the person in charge of Paradise in Hong Kong testified that she had not received any training on travel industry. She worked for Osama, founder of Paradise in Egypt, since 2005 through an introduction by a common friend. She did not have any travel or working experience in Egypt. She, although being the person in charge of Paradise in Hong Kong and having the title as Regional Manager, basically said that she was not more than a mail box transferring message between Kuoni and Osama. In relation to the choosing Sky Cruise, she said it was Osama’s choice and she had no idea why it was chosen. She said there was no discussion between Kuoni and her on HAB activities. Before the accident, she has never given any copy of Sky Cruise’s license or insurance but just told Kuoni that Sky Cruise was chosen as the HAB service provider upon Osama’s instruction.\n49.\nA Risk Solutions Manual for Travel Industry in Hong Kong was issued by TIC in February 2008\n[29]\n. Paragraph A1.1.1 of the Manual provided a Supplier selection criteria checklist. However, the checklist does not cover present situation in which the Hong Kong travel company has engaged a DMC to select and arrange with the local service providers.\n50.\nDespite the fact that Kuoni was told by Paradise that Sky Cruise was an experienced service provider with reputation, it was revealed from the Egyptian investigation that the maintenance carried out at Sky cruise did not always refer to the appropriate part numbers or serial numbers, as per the full maintenance procedures\n[30]\n; for example: absence of record of the 5\nth\ntank (for inflating the balloon) and unclear basket number\n[31]\n. Further, gas leakage appeared to be a common problem as testified by the staff of balloon companies, which did not appear to cause serious concern by the company, which seemed to be quite contrary to the stringent UK reporting system as testified by Mr. Chadwick.\n51.\nRegarding operation of the present HAB, it was also revealed that the pilot was allowed to take off, despite absence of the maintenance engineer and the operation manager and that he was not able to contact the control tower until 10 minutes after taking off\n[32]\n. When the pilot was asked by the investigation team about the dissimilarity between his pre-departure check signature and his previous signature, he claimed that he would use several signatures in order not to be imitated! Mr. Chadwick could not help expressing his concern as to why anyone would want to imitate a pre-departure check signature during normal operation.\n[33]\nAlso, no summary or translation of pilot briefing was supplied to the passengers before taking off. It was however recommended by Mr. Chadwick that the use of laminated passenger safety briefing cards should complement the pilot’s briefing to passengers. The use of diagrams and briefing cards in major world language should be provided.\n[34]\n52.\nMy pointing out the above observation made after Egyptian investigation was not because I wanted to discuss or determine the fault or liability, but to show the danger of Hong Kong travel companies simply replying on words of DMC without conducting its own risk assessment. It is equally important for Hong Kong travel companies to properly select and supervise the service providers even after a DMC has been engaged.\n53.\nGiven the highly technical nature of HAB operation and the fact that the inquest does not have the advantage of hearing direct evidence, this court is not in the best position to make any conclusion or comments on the requirement of a safe HAB maintenance or operation.\n54.\nUpon hearing this inquest, I reckon that there is at present a lacuna in TIC’s guidance on Hong Kong travel companies’ duty and responsibility on local service providers when DMC is engaged. I note that there is quite a detailed list for TIC members to select local service providers\n[35]\n, however such manual does not cover situation when travel agent companies have entrusted a local DMC.\n55.\nApart from telling me that we should trust the licensing system of each country and it is very difficult for Hong Kong travel company to monitor local service providers as well as it is a worldwide common practice to engage a DMC to do the work for travel companies, Mr. Tung of TIC basically gave me no suggestion nor assistance as to how the service of Hong Kong travel companies can be improved and safety of Hong Kong customers be better safeguarded.\n56.\nTo my surprise, both Kuoni and TIC have never conducted any evaluation of the case until the present inquest. Neither has TIC done anything to review the existing guidelines. More than three years have lapsed since the date of this tragic event. It is disappointing to learn that not only the travel company and TIC were not able to realize the risk involved in this particular activity showed by the lack of risk assessment, they were also not alerted after loss of nine precious lives. That in a way shows how insensitive the Hong Kong travel industry is to the well-being of customers. Regardless of whether this tragedy could possibly be avoided, the cursory attitude in assessing risk and reflecting after the accident as showed from the testimony given by LAU being senior management of Kuoni, given its reputation as one of the most high-end travel companies in Hong Kong, was unsatisfactory in my view. Similarly, I consider TIC’s reaction after the accident to be too slow and attitude too passive. The AAIC report was issued in December 2013 and I expect TIC should have looked into the matter thoroughly and reviewed the present guidelines on outbound activities involving risk much earlier instead of waiting for the result of this inquest.\n57.\nFurther, I consider that information or assistance currently provided by TIC to travel companies and more importantly to customers as to risks involved in various activities operated at various countries to be insufficient.\nRecommendations to Travel Industry Council (TIC)\n58.\nAnalyzed as the above, I now recommend:\n1) TIC to conduct a thorough research and collect data from the industry so as to list out popular activities operated in different countries offered by travel companies involving certain degree of risk. TIC to categorize the degree of risk in respect of different activities provided in different countries for industry as reference. Such list should be updated from time to time;\n2) TIC to set out clear guidelines for travel companies as to the necessary information of activities involving certain degree of risk to be provided to customers before taking part in such activities;\n3) TIC to set out clear and specific guidelines for travel companies that customers should be reminded that their travel insurance may not cover activities involving certain degree of risk;\n4) TIC to look into travel companies’ duty and responsibility in selecting and supervising the local service providers and review the existing guidelines when destination management companies are engaged;\n5) TIC to set out new guidelines on travel companies’ duty and responsibility to supervise destination management companies;\n6) TIC to set out safety guidance and advertise to customers as to the importance of obtaining details of travel policy insurance and information on activities involving risk before enrolment.\nRecommendations to Kuoni\n59.\nI also recommend:\n1) Kuoni to obtain sufficient information from local service providers and conduct thorough risk assessment on activities involving certain degree of risk provided to customers before offering the same;\n2) Kuoni to conduct thorough evaluation after every major accident taking place during tours provided by them so as to find out the cause of the accident and consider if there is anything that can be done to improve the quality and safety of service provided to customers.\n3) Kuoni to provide sufficient information to customers about activities involving certain risk and remind them in more specific and clear terms that activities involving risk may not be covered by their travel insurance;\n4) Kuoni to provide more training and information to front desk staff, including receptionists and tour escorts, so that they can be better equipped to explain the risk involved in activities provided by the company;\n5) Kuoni to set out clear criteria for selecting destination management companies and local service providers with first hand information and to closely monitor the service provided by destination management companies and local service providers.\n60.\nBoth TIC and Kuoni need to reply the Coroner in writing in three months’ time as to 1) whether the above recommendations are accepted and if yes 2) what steps have been taken to implement the recommendations and 3) reasons if the recommendations are not accepted.\n61.\nLastly, let me offer my deepest condolence again to the next of kin for their loss of loved ones and also thank you all for attending this inquest. I cannot even try to imagine the difficult journey you have gone through and dare not expect that by having this inquest you will be soothed in anyway. What I sincerely hope is that you will find this inquest helpful in some way having been informed of more details about the incident. I am indebted to the Hong Kong police, Mr Brook and Mr IP, SPP of Department of Justice, for their unfailing support in this investigation despite all the difficulties. I also thank counsel’s assistance from all parties. Lastly, I need to deliver my gratitude to the senior interpreters, Mr Wong and Mr Lai and the Clerk to Coroner, Miss On for their invaluable assistance throughout the hearing.\n62.\nIf parties and the press wish, a copy of this inquisition can be obtained from my clerk after the court rises. A press summary is also available for the press. The inquisition and press summary will also be uploaded to the Judiciary website very soon after today’s hearing. The inquest is hereby closed.\nJune CHEUNG\nCoroner\nRepresentation:\nMr Michael Ozorio, SC instructed by Messrs Paul C. K. Tang & Chiu for KUONI Travel (China) LTD.\nMr Bernard Murphy of Messrs Howse Williams Bowers for Ultramagic S.A.\nMr Foster Yim instructed by Messrs Wan Yeung Hau & Co. for next of kin of Ho Oi Hing, Ho Oi Ying, Ho Oi Ming, Tang Yuk Ling, Siu Chi Man & Kwan Pui Man Eleni\nMr Edward Brook and Mr Cliff Ip of Department of Justice as Coroner’s Officer\n[1]\nPp. 17-20 of the AAIC report (Exhibit C30)\n[2]\nP.12 of the prosecution report (Exhibit C32A)\n[3]\nParas.1.5.1, pp.16-20, AAIC report (Exhibit C30)\n[4]\nPp.74-84, prosecution report (Exhibit C32A)\n[5]\nP.17 of AAIC report (Exhibit C30)\n[6]\nP.5 of the investigation report (Exhibit C30)\n[7]\nP.6.8 of Maintenance Manual of Ultramagic HAB (Exhibit C50)\n[8]\nP.7 of the prosecution report (Exhibit C32A)\n[9]\nParagraph 2.6, page 140 of AAIC report (Exhibit C30)\n[10]\nParagraph 3.4.6 of Chadwick’s report (Exhibit C46a)\n[11]\npp.48-59 of Prosecution report (Exhibit C32A)\n[12]\np.66 of Prosecution report (Exhibit C32A)\n[13]\nPage 8 of Chadwick’s report (Exhibit C46a)\n[14]\nP.219 of the AAIC report (Exhibit C32a)\n[15]\nPage 217 and 218 of AAIC report and page 10, para 3.3.3 of Chadwick’s report (Exhibit C46a)\n[16]\nPara.2.12, page 2 of Chadwick’s report (Exhibit C46a)\n[17]\nParagraphs 6.1-6.8 of Chadwick’s report (Exhibit C46a)\n[18]\nParagraph 4.1.4, page 149 of AAIC report (Exhibit C30)\n[19]\nPara. 4.14, page 20 of Chadwick’s report (Exhibit C46a)\n[20]\nExhibit C1\n[21]\nExhibits C8 and C9\n[22]\nExhibit C35\n[23]\nExhibit C5\n[24]\nExhibit C5\n[25]\nExhibit C6\n[26]\nSky Cruise HAB leaflet (Exhibit C11)\n[27]\nExhibit C6\n[28]\nExhibit C34\n[29]\nExhibit C 36\n[30]\npage 140 of AAIC report, comment 13 of Chadwick report (Exhibit C46a)\n[31]\ncomments 12 of Chadwick report (Exhibit C46a)\n[32]\npp.75-86 of the prosecution report (Exhibit C32a)\n[33]\nParagraph 3.4.4, p.11 of Chadwick’s report (Exhibit C46a)\n[34]\nParagraph 5(g), pp. 22 and 23 of Chadwick’s report (Exhibit C46a)\n[35]\nParagraph A1.1.1 if Risk Solution Manual (Exhibit C36 and 36A)", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2013/CCDI000346_2013.doc", + "file_name": "CCDI000346_2013.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkcrc/2016_HKCrC_6/case.json b/en_cases_hkcrc/2016_HKCrC_6/case.json new file mode 100644 index 0000000..2e2d6b4 --- /dev/null +++ b/en_cases_hkcrc/2016_HKCrC_6/case.json @@ -0,0 +1,26 @@ +{ + "Date": "7 Jun, 2016", + "Action No.": "CCDI351/2013", + "Neutral Cit.": "[2016] HKCrC 6", + "case_title": "RE HO OI HING AND OTHERS", + "page_title": "RE HO OI HING AND OTHERS | [2016] HKCrC 6 | HKLII", + "case_history": [ + { + "name": "CCDI351/2013", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2013/351" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkcrc/2016/6", + "neutral_cit": "[2016] HKCrC 6", + "court_code": "HKCRC", + "content": "CCDI346/2013 RE HO OI HING AND OTHERS\nPress Summary (English)\nPress Summary (Chinese)\nCCDI 346-354/2013 (PW)\nIN THE CORONER’S COURT\nTHE HONG KONG SPECIAL ADMINSTRATIVE REGION\n(Case No. CCDI 346-354 of 2013)\nHO Oi-hing\nHO Oi-ying\nHO Oi-ming\nTANG Yuk-ling\nSIU Chi-man\nKWAN Pui-man Eleni\nPOON Lau-tim\nTO Sau-ching\nPOON Tak-sze\nCoram: June Cheung, Coroner\nDates of hearing: 15-26 Feb, 2 March, 9 March, 31 March and 23 May 2016\nDate of delivery of inquisition: 7 June 2016\n____________________\nI N Q U I S I T I O N\n_____________________\nIntroduction\n1.\nI have mentioned at the commencement of and during this inquest, but I will reiterate here: that the purpose of this Inquest is to inquire into the cause of the death and the circumstances connected with the death. We are not concerned with the fault, civil liability or compensation here. Although we have looked into matters concerning travel insurance as well as responsibility of travel agent at different locality, those, as I have mentioned more than once, were to facilitate me in making practicable recommendation to prevent future tragedy. In fact, the law expressly prohibits any conclusion being framed in such a way as to determine any question of civil liability. Therefore the question as to whether or not there was negligence such as to give rise to an action for damages or compensation is not a matter for this court; - that is a matter for the civil courts. My role here is to determine simply: what happened and what did not happen as well as making practicable recommendation having the hard lesson learnt.\n2.\nThe standard of proof I apply in this inquest, unless I specify otherwise, when deciding upon all matters is what known is as “on a balance of probabilities”. In other words, is it more likely than not that a fact existed or an event occurred.\n3.\nDespite the difficulties encountered during the investigation, namely the fact that all eye witnesses of incident were not available, the court was not able to examine the real exhibits and that Hong Kong itself does not have experience or expertise in hot-air ballooning, this court has fortunately obtained two detailed reports from the Egyptian authority which were admitted as evidence, namely, 1) the investigation report issued by the Egyptian Ministry of Civil Aviation in December 2013 (“\nAAIC report\n”) governed by Annex 13 to the Convention on International Civil Aviation and 2) the Public prosecution report signed by the “President of the Appeals, Acting Chairman of the Technical Officer to the Officer of the Attorney General of the Arab Republic of Egypt (“\nProsecution report\n”) containing the transcript and memorandum from the General Prosecutor’s office. The two reports are in my view thorough, detailed and professionally produced by persons with the necessary skills, knowledge and expertise. We also have the benefit of having Mr. Chadwick, General Aviation Flight Standard Officer (Balloon Operations) from the UK Civil Aviation Authority, to assist this court to understand the two reports and operation of hot air balloon (“\nHAB”\n) in general. I consider Mr. Chadwick’s expert evidence was most helpful, impartial and professional.\n4.\nDuring the inquest, we have called 9 witnesses: they were Mr Wilson AU (CW1) (“\nAU\n”) and LAU Tak ping (CW3) (“\nLAU\n”) from Kuoni Travel (“\nKuoni\n”); Mr Wong Kong Sing (CW2), one of the tour member who did not join the optional hot air balloon ride; Mr Joseph Tung, Chairman of the Travel Industry Council (“\nTIC\n”) (CW4), Mr Chin Shing (CW5) who was responsible for making the HAB model for the purpose of this inquest and two Arabic translators for clarification of some of the contents of the reports (CW6 and CW7); Mr Chadwick (CW8), the HAB expert mentioned above and finally Miss Scarlett SO Lai-kuen (CW9), person in charge in Hong Kong of Paradise Travel (“\nParadise\n”) which was the Destination Management Company (“\nDMC”\n) engaged by Kuoni for this Egypt tour. Their evidence covered a number of issues in great details that apparently might not be strictly relevant to the findings at inquest set out in Form 12 but essential for this court to understand the background of the case and finally making recommendation to prevent future similar tragedy.\nGeneral course of event leading to the deaths\n5.\nThe present case may be one of the most tragic incidents happened while Hong Kong citizens were travelling abroad. As a matter of fact, it was the deadliest hot air ballooning disaster in history resulted in 19 deaths, 9 of which were the deceased in the present inquest. The general course of event was largely undisputed. All the nine deceased, together with 6 other tour members who did not join the HAB ride, were joining a 10 days’ tour to Egypt departing on 22 February 2013 organized by Kuoni. The HAB ride in question took place in Luxor city and was one of the self-pay optional activities offered in the tour. Kuoni has engaged Paradise as their DMC responsible for the arrangement in Egypt and Paradise has chosen Egyptian Airship and Balloon-Sky Cruise Company (“\nSky Cruise\n”) as the local HAB service provider.\n6.\nAt small hours on 26 Feb 2013, the 9 deceased, AU, tour escort of Kuoni, and Mostafa, assistant from Paradise, set off from hotel to the place where the balloon would take off. It was around 0615 hours local time when the balloon took off with 20 passengers. When the balloon had flown for more than 35 minutes, the pilot instructed the ground crew to receive the drop line starting the landing procedure. The HAB suddenly caught fire in the air which caused major injury to the pilot who exited the basket followed by a few passengers. While the balloon was still burning with less weight on the basket, it kept ascending until the envelope was so badly damaged, incapable of supporting the basket and fell on the field. As a result of the incident, 19 passengers were dead, 9 of which were the deceased of the present inquest. The pathologists found that the injury causing each of their death to be multiple injuries and burns.\nCause of the accident\n7.\nThe HAB in question was manufactured in 2004 by a Spanish balloon company called Ultramagic and registered as SU 283. The balloon type was “Ultramagic N425” and Sky Cruise bought it in 2005 from a Sweden operator. The balloon was operated by wind action effects for horizontal movements while vertical movements control was made through the control of the burners by the balloon pilot.\n8.\nOn the evidence, the take-off procedures seemed to be normal and the balloon had flown for about 35 minutes before the fire started in the course of landing.\nEvidence from the Pilot\n9.\nThe only surviving eye-witness of the event who has given evidence to the Egyptian authority was the pilot of the HAB in question, Mr Momen Murad Ali Hussein, Egyptian, aged 29. The other surviving passenger was not willing to give evidence. The pilot has held a balloon pilot commercial licence issued by the Egyptian Civil Aviation Authority since 2006. He was firstly interrogated by the authority when he was badly injured in bed after the accident. He was further taxed for the purpose of prosecution in April 2013 and he gave a statement to the investigation authority again on 17 June 2013\n[1]\n. The prosecution was not proceeded with finally\n[2]\n. His evidence was contained in the AAIC report\n[3]\nand prosecution report\n[4]\n.\n10.\nHe stated that because there was no maintenance manager available at the time, he took a look at the balloon and ensured the hoses were safely installed using sense of smell before taking off. At the time of taking off, he contacted the control tower but no one was there to answer him. He said however the take-off procedures went smoothly and the balloon kept flying like usual until it started to land at around 10 meters height from the ground. At the beginning of the landing, the fuel quantity for both aft cylinders showed ¼ capacity, whilst the forward burners were not used except for the “pilot light”. After about 35 minutes, the pilot used the forward cylinders. All of a sudden, a fire hit him on his back and ejected him from the balloon. He was not able to take any measures to control the fire, neither using the extinguisher nor turning off the valve of the gas cylinder.\n11.\nThe pilot also stated that at the beginning of the landing, he dropped the rope out of the basket before he heard a loud sound of a fire flame. He did not notice any interference between the rope and any of the hoses. The location of the drop line rope is far from the hoses, he believed it cannot be scrambled around them. Neither did he smell any gas nor hear any explosion sound of any part. All he heard was the sound of a fire flame. The fire sound was similar to the spraying sound coming out of an “insect repellant pressurized can”. He said the fire came from the forward burners but was not able to identify the exact location of the fire source. The fire was from left side and his injuries mainly on the left side. The fire was in one direction of yellow color.\n12.\nHe could not conclusively identify the source of the flame. He believed that the cause of accident could be as a result of defect of\n[5]\none of the hoses connecting the cylinder to the burner.\n13.\nThe Egyptian investigation\n[6]\nalso showed that the surviving pilot was suffering from burn wounds scattered on his head, his face, his back, his left upper limb and right upper arm, and upper chest and abdomen and lower limbs. Skin grafting operations were conducted.\nMaintenance of the hoses\n14.\nThe maintenance manual states the need for a special inspection of the hoses every ten years and to check if there are any cuts or damage.\n[7]\nIt is said that the maintenance manager conducted a 100 hour annual inspection dated 5 October 2012 under the supervision of Egyptian Civil Aviation Authority and the Validity Certificate was renewed for the period of 13 October 2012 until 12 October 2013\n[8]\n.\n15.\nWithin the AAIC analysis\n[9]\n, it is stated that maintenance carried out by Sky Cruise did not always refer to the appropriate part number or serial number, as per the full maintenance procedures.\n[10]\n16.\nOn the other hand, Hasan Muhammad Kinnawi, the assistant of the Ground Team Head for the HAB who was responsible for supervising the workers in taking off and landing, stated that gas leakage was a usual occurrence in his job, and they usually noticed the leakage by smell it and would change it without mentioning of any reporting system. He also said that the operation manager (ground team head) and the maintenance engineer were both absent on the day of the incident for unknown reasons\n[11]\n. The operation manager of Viking Company, another HAB company in Luxor, also said that gas leakage of HAB happened a lot.\n[12]\n17.\nMr Chadwick commented\n[13]\nthat the hose that was attached to the burner that was made in 2005 and may have accumulated high flight hours may not necessarily be directly a contributing factor to the accident. Hoses with many more confirmed flying hours and much older are being regularly used in the world hot air balloon fleet. At the time of this report, the UK CAA are unaware of another hot air balloon accident that is attributed to an in-flight hose failure of the nature specified in the report, this being largely due to the stringent inspection and maintenance requirements in of HAB activities in UK and the implementation of it.\nConclusions from the Egyptian authority\n18.\nIt is stated in AAIC report (Exhibit C30), at page 147, that:\n“The probable cause for the accident as seen by the investigation committee is due to a (1)\nhose fuel leak\nat the upper portion of the forward right hose connected to burner number 193 capturing its ignition source from burner’s fire causing a fire that caused a major and direct injury to the (2)\nballoon captain\n” (my emphasis)\n19.\nNevertheless, it could not be ascertained from the investigation carried out by the Egyptian authority if the hose fuel leak was as a result of internal malfunction of the hose due to lack of inspection and/or maintenance or if there was an outer force pulling off the hose from the burner, e.g. tangling by drop line at the time of landing.\n20.\nThe AAIC report also considered two contributing factors to the accident at page 147 of the report:\n“1. Maintenance actions that were carried out on the hoses could not indicate the need to replace the hose that was the cause of the accident”\n2. The part number of the hose connected to the burner 193 was for a hose made in 2005 and therefore it has accumulated high flight hours and sometimes under adverse conditions”\n21.\nOn the other hand, the Spanish Civil Aviation Commission of Accidents (\nCIAIAC\n) made their point in their letter\n[14]\n, as the accredited representative from Spain in the Egyptian investigation, that:\n“the simultaneity or coincidence in time of the action of pulling down the balloon by the ground crew through the drop line rope (handling line) and the start of the gas leak and a further fire should be considered as a significant condition for the accident scenario under which the fire broke out”\n22.\nFurther conclusion by CIAIAC\n[15]\nwas that:\n“- Operator maintenance discrepancy issues and certain lack of maintenance control were evident during the AAIC investigation;\n- With regard to this particular flight, the pre-departure check had not been fully completed by the balloon pilot.”\nFinding at inquest in Form 12\n23.\nHaving heard all the evidence I accept and find that:\nInjury causing death\nThe medical causes of death for all of the deceased were\nmultiple injuries and burns.\nTime, place and circumstances at or in which injury was sustained\nAll nine deceased died in the morning of 26 Feb 2013 during a hot-air balloon ride over Luxor City when the balloon caught fire during the flight after the landing procedure had started. The fire was due to hose fuel leak at the upper portion of the forward right hose connected to the burner number 193. Such fire also caused serious and direct injury to the balloon pilot who was unable to do anything to control the fire.\nConclusion as to the deaths\nI find the conclusion as to the deaths of all deceased to be\ndeaths by accident.\n24.\nI now also read out the Particulars for the time being of each deceased required by the Birth and Deaths Registration Ordinance (\nCap 174\n) to be registered concerning the death (See form 12 attached for each deceased).\nConsideration of recommendation\n25.\nUnder\nsection 44\n(2) of the\nCoroners Ordinance\n(\nCap 504\n), the coroner at an inquest may make recommendation designed:\n(a) to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held;\n(b) to prevent other hazards to life disclosed by the evidence at the inquest;\n(c) to bring to the attention of a person who may have power to take appropriate action any deficiencies in a system or method of work which are disclosed by the evidence at the inquest and which are of public concern.\n26.\nThe following are some features of the evidence which are helpful to me in considering recommendations to be made after the inquest.\nRisk involved in HAB ride in Egypt\n27.\nHAB is an activity not available in Hong Kong and has become a popular activity around the world and welcomed by Hong Kong tourists travelling abroad. As HAB was operated under apparently simple mechanics and the speed of the same is generally quite slow and steady for commercial/tourism purpose, the risk of the same was generally not recognized by tourists. Although Mr LAU of Kuoni testified that he, as a member of senior management responsible for designing tour, viewed that HAB ride involved moderate degree of risk, Kuoni has not conducted any risk assessment on this activity before offering them and there was no particular attention, guidelines or information concerning risk of taking part in this activity provided to their employees, including front desk receptionists or tour escorts nor their customers. LAU said that they basically relied on the fact that other companies were also offering HAB activities and they were aware that HAB was offered in many other countries and considered to be safe in general.\n28.\nHAB is a type of aircraft and a highly regulated industry. Of course, each jurisdiction has its own civil authority to regulate this activity. It was emphasized at times by Mr Ozorio, SC, representing Kuoni, that HAB ride is a safe activity by quoting Mr Chadwick’s report: “the advancement in fabric technology and envelope rapid deflation systems has facilitated larger balloons to be operated with a high degree of safety and reliability.”\n[16]\nHowever, since HAB ride is taken place in the air with considerable height, it undoubtedly involves a certain degree of risk. By giving a simple click in the internet will show a number of serious fatal HAB accidents occurred in the past around the world. That is why hot air ballooning needs stringent regulation on the airworthiness and operation of the balloon and pilot licensing scheme. In fact, as testified by Mr Chadwick, UK has developed a set of stringent regulations to ensure safety of air ballooning activities especially the commercial passenger carrying balloon has been vastly developed over the years around the world\n[17]\n. The safety of and risk involved in this activity actually depend on how stringent such regulations are and how well the same are implemented.\n29.\nIt is of note that AAIC report did make a recommendation, at p.149 of the report,\n[18]\nthat:\n“Issue necessary instructions to balloon companies to assure informing passengers when they reserve their flights that this kind of sports\nincluded some degree of risk\nand for the purpose of adventure in order that passengers would make their decisions from the beginning .” (\nmy emphasis\n)\n30.\nIn relation to that, Mr Chadwick responded in his report\n[19]\nthat:\n“Many hot-air balloon passenger flights are bought by a third party as a present, with the actual passenger not finding out about their flight until the day of the flight. However, it is accepted that flying as a passenger in a hot-air balloon\ninvolves certain different threats\nto that of flying on a commercial airliner, and the AAIC is correct that information as to the physical requirements of flying in a hot-air balloon needs to be given at the point of reservation. This would therefore have implications to tour operators and local representatives at resorts, etc.” (\nmy emphasis\n)\nInformation about HAB ride provided by Kuoni to its staff\n31.\nThe present tour was the fifth Egypt tour Mr AU led as he testified. He started escorting Egypt tour since Sept 2012. He testified that before he led the first Egypt tour it was the experienced colleagues sharing to him local information about Egypt and he has not received any formal training or briefing relating to safety of leading tour in Egypt or taking part in hot air balloon activities. About half to one month prior to the 1\nst\nEgypt tour escorted by him in Sept 2012, experienced colleagues did mention to him briefly and casually in office how HAB was operated by wind, the flight distance and landing posture. Apart from that, no other information or training was given to him in respect of the risk of taking HAB ride. He was also told that people who had heart condition, hypertension and fear of height should not take part in HAB.\nInformation about HAB provided to tour members\n32.\nIn early 2013, Mr AU was assigned by Kuoni to host the “tea party” on 7 Feb 2013 for the present tour. By then, he did not know if he would be the tour escort of the tour. About a week before the departure, Mr AU was informed by Kuoni to escort the tour in question.\n33.\nThere is no dispute that the need for customers to purchase comprehensive travel insurance before departure is generally set out in the tour booking form\n[20]\nand the receipts issued by Kuoni to the deceased\n[21]\n. It was also reminded in the receipts, though in small prints, under the heading of “Important Notice” that customers are suggested to read carefully the coverage and relevant clauses in their insurance policies to ensure sufficient coverage in case of accident. I am also well aware that Kuoni was not allowed by the TIC\n[22]\nnor did they put pressure upon or force customers to purchase Kuoni’s own Generali insurance. The question is whether the customers are provided with clear and sufficient information concerning the activity they are joining and the risk involved in it before they made an informed decision of participation.\n34.\nAU said that during the tea party, among other information, there was a note named “Safety guidance of activities in Middle East and African area”\n[23]\n, provided to tour members. On which there was a paragraph concerning taking HAB rides which stated to the effect that participants shall follow staff’s safety guidance and rules of activity. Participants shall only leave the balloon as directed by the staff upon landing of the balloon.\n[24]\n35.\nAt the tea party, tour members were also provided with a Price list of Self-pay Activities in Middle East and Africa\n[25]\non which it was said relating to HAB ride: “Go on a hot air balloon ride in Luxor to view the beauty of Nile and Luxor.\nThis activity includes breakfast and insurance\n. An aviation certificate will be issued: Approx. 45 minutes (the entire trip takes approx. 2.5 hrs: USD 190 for all age group” (\nmy emphasis\n)\n36.\nThe information given to customers in the above price list: “this activity includes insurance” was ambiguous. When Senior Manager LAU was asked as to what it exactly meant, he said vaguely that might mean this activity included flying insurance taken by Sky Cruise and customers were covered by insurance when they take part in this HAB activity. LAU said they in fact just translated and copied the information stated on the Sky Cruise’s leaflet\n[26]\n. In my view, this clause may let the customers misunderstand that their joining of this activity was covered by insurance which turned out to be not the case, as revealed from the evidence of this inquest. Should the members be warned more clearly and specifically that their insurance may not cover this HAB activity, their decision to join the activity may be changed.\n37.\nThis court is well aware of its limited jurisdiction. I am not concerned about why 6 deceased out of 9 did not buy Kuoni’s travel insurance but bought their own Comprehensive Travel Insurance from China Merchants Insurance Company Limited. Nor is this court attempting to explore the reasons why they were not insured. My concern is whether practicable recommendation could be made to prevent recurrence of similar fatalities. The ambiguous wording on the above optional self-pay activity price list\n[27]\nabout the HAB ride and the lack of sufficient information provided to the customers joining the HAB ride so that they could make better assessment of the risk may affect their choices of participating the activity.\n38.\nOn AU’s evidence, he said that when tour members were paying the fees the day before the ride, he had told them briefly information about the duration of the flight, what scenery to be seen and advised them not to join if they have heart condition, hypertension and fear of height. He has also shown pictures taken about the ride before to the tour members. Upon arrival at the taking-off place before they were approaching the balloon in question, he gave his group of 9 members some information as to the duration of the flight and landing posture. He also told them he would be taking pictures for them and taking care of their belongings. While the pilot of the HAB from Sky Cruise was conducting briefing session in English to 20 passengers before taking off, no instant interpretation was given by AU because he saw no need as his had given his own briefing to the deceased earlier on.\nInformation concerning HAB ride acquired by Kuoni\n39.\nIn fact, after hearing the evidence, it was not surprising why not much information relating to HAB ride was given to the employees and customers by Kuoni. On LAU’s evidence, even the senior management designing the tour did not have much information about the HAB ride. Apart from having been told by Paradise that Sky Cruise was licensed, insured and experienced, Lau basically told the court that he had never discussed the HAB ride among the senior management before offering this activity. Neither did he nor Kuoni as far as he knew conduct any formal evaluation after this incident.\n40.\nIt was submitted by Mr Ozorio, SC for Kuoni that there were no discussion nor query raised among tour members concerning risk of HAB ride and that they could easily do researches on their own should they wish so. That, as submitted, showed that the deceased were not concerned with the risk of HAB ride. I am afraid I cannot agree with that. It is not hard to observe that people who tend to join travel tour, as opposed to planning their own trip, are those who are either more senior in age or do not prefer to plan by their own. Participants of travel tours tend to leave the planning and entrust all the arrangement to the travel agent company and the tour escort. That may require higher responsibility from the travel company to conduct sufficient risk assessment before offering the activities and to provide sufficient information to the customers.\n41.\nIt is of note that this case happened in Egypt which is not a developed and advanced country like the United Kingdom, Australia or New Zealand where HAB industry is long established and governed by stringent regulatory system. It is common sense that an activity is considered to be safe in one country does not necessarily mean that it is safely operated in another.\n42.\nAs a matter of fact, it was not the first HAB accident occurred in Luxor. It is not disputed that there was a major HAB accident happened in Luxor as a result of which 16 passengers were injured which caused temporary suspension of the activity. I consider that Hong Kong travel companies apart from designating a DMC to appoint and liaise with the local service providers should also acquire sufficient information of such activity before offering the activities that involved a certain degree of risk.\n43.\nInstead of relying on the fact that other companies are also providing the same activity, travel companies should acquire sufficient information for its own risk assessment before providing such activity. The information is also essential for training the frontline staff. More importantly, customers should be well informed of the information before taking part in such activity involving certain degree of risk. In my view, the list of basic information about the HAB ride that should be acquired by the travel company and provided to the customers includes but not limited to:\n- Height and duration of the HAB flight;\n- Pictures of HAB showing the envelope, basket and burners of the HAB;\n- Size of the HAB;\n- Brief information about material and mechanics of operation of the HAB;\n-Information about experience and reputation of the company providing the HAB ride;\n- Any HAB accidents happened before in the destination and any of such related to the service provider;\n- The licensing system in the country as compared with other worldly recognized country.\n44.\nIn fact, it is stated at paragraph 9.3 of Code of Conduct for Outbound Tour Escort issued by TIC in October 2007\n[28]\nthat: “Prior to arranging self-pay activities, tour escort shall explain clearly to tour participants the content, duration, fee, safety and responsibility of such activities.” Checklist 4.2 attached to the same Code also provides a few items for checking in respect of optional activities.\nSelecting and supervising the local destination management company and/or service provider\n45.\nFrom the evidence of LAU, Senior manager of Kuoni responsible for product designing and tour planning, Kuoni started to offer HAB ride in 2008. Kuoni stopped offering HAB immediately after this accident, but still offer Egypt tour until June 2013. He said that Kuoni relied upon the fact that other Hong Kong travel companies were also offering HAB ride before they were offering the same. He was aware that HAB ride was also provided in other countries around the world and was considered to be safe by other companies. He said that some of their colleagues also had the experience of HAB ride in other companies before they joined Kuoni.\n46.\nWhen asked if there was any risk assessment of HAB ride in Egypt done by him or Kuoni as far as he knew before the accident, LAU replied negative and said that they usually relied on the local licensing system and if the company was insured. He was informed by Paradise that Sky Cruise was licensed and insured (being one of criteria of obtaining license). Surprisingly, Kuoni has not even obtained a copy of those documents but just relied on Paradise words until the accident occurred. He was told by Paradise that Sky Cruise was an experienced operator of HAB and started to operate HAB activities in 90s. Kuoni basically relied on the choice and information given by Paradise. LAU said that they also relied on feedback from tour escorts and customers when considering the quality of service provided by local company.\n47.\nDespite the absence of any risk assessment done by LAU/Kuoni before offering HAB ride, he agreed that HAB contained certain degree of risk. He considered HAB ride as an activity having moderate degree of risk. As to what training, if any, was given to tour escort or front desk staff, he said there would only be casual sharing given by experienced colleagues to junior ones. Kuoni did not have particular safety guidelines or briefing of HAB ride provided to staff. During the tour in Egypt, AU basically was responsible for liaisoning with the local guide/assistant there called Mostafa and relied on him for all the local arrangements.\n48.\nMiss Scarlet So, the person in charge of Paradise in Hong Kong testified that she had not received any training on travel industry. She worked for Osama, founder of Paradise in Egypt, since 2005 through an introduction by a common friend. She did not have any travel or working experience in Egypt. She, although being the person in charge of Paradise in Hong Kong and having the title as Regional Manager, basically said that she was not more than a mail box transferring message between Kuoni and Osama. In relation to the choosing Sky Cruise, she said it was Osama’s choice and she had no idea why it was chosen. She said there was no discussion between Kuoni and her on HAB activities. Before the accident, she has never given any copy of Sky Cruise’s license or insurance but just told Kuoni that Sky Cruise was chosen as the HAB service provider upon Osama’s instruction.\n49.\nA Risk Solutions Manual for Travel Industry in Hong Kong was issued by TIC in February 2008\n[29]\n. Paragraph A1.1.1 of the Manual provided a Supplier selection criteria checklist. However, the checklist does not cover present situation in which the Hong Kong travel company has engaged a DMC to select and arrange with the local service providers.\n50.\nDespite the fact that Kuoni was told by Paradise that Sky Cruise was an experienced service provider with reputation, it was revealed from the Egyptian investigation that the maintenance carried out at Sky cruise did not always refer to the appropriate part numbers or serial numbers, as per the full maintenance procedures\n[30]\n; for example: absence of record of the 5\nth\ntank (for inflating the balloon) and unclear basket number\n[31]\n. Further, gas leakage appeared to be a common problem as testified by the staff of balloon companies, which did not appear to cause serious concern by the company, which seemed to be quite contrary to the stringent UK reporting system as testified by Mr. Chadwick.\n51.\nRegarding operation of the present HAB, it was also revealed that the pilot was allowed to take off, despite absence of the maintenance engineer and the operation manager and that he was not able to contact the control tower until 10 minutes after taking off\n[32]\n. When the pilot was asked by the investigation team about the dissimilarity between his pre-departure check signature and his previous signature, he claimed that he would use several signatures in order not to be imitated! Mr. Chadwick could not help expressing his concern as to why anyone would want to imitate a pre-departure check signature during normal operation.\n[33]\nAlso, no summary or translation of pilot briefing was supplied to the passengers before taking off. It was however recommended by Mr. Chadwick that the use of laminated passenger safety briefing cards should complement the pilot’s briefing to passengers. The use of diagrams and briefing cards in major world language should be provided.\n[34]\n52.\nMy pointing out the above observation made after Egyptian investigation was not because I wanted to discuss or determine the fault or liability, but to show the danger of Hong Kong travel companies simply replying on words of DMC without conducting its own risk assessment. It is equally important for Hong Kong travel companies to properly select and supervise the service providers even after a DMC has been engaged.\n53.\nGiven the highly technical nature of HAB operation and the fact that the inquest does not have the advantage of hearing direct evidence, this court is not in the best position to make any conclusion or comments on the requirement of a safe HAB maintenance or operation.\n54.\nUpon hearing this inquest, I reckon that there is at present a lacuna in TIC’s guidance on Hong Kong travel companies’ duty and responsibility on local service providers when DMC is engaged. I note that there is quite a detailed list for TIC members to select local service providers\n[35]\n, however such manual does not cover situation when travel agent companies have entrusted a local DMC.\n55.\nApart from telling me that we should trust the licensing system of each country and it is very difficult for Hong Kong travel company to monitor local service providers as well as it is a worldwide common practice to engage a DMC to do the work for travel companies, Mr. Tung of TIC basically gave me no suggestion nor assistance as to how the service of Hong Kong travel companies can be improved and safety of Hong Kong customers be better safeguarded.\n56.\nTo my surprise, both Kuoni and TIC have never conducted any evaluation of the case until the present inquest. Neither has TIC done anything to review the existing guidelines. More than three years have lapsed since the date of this tragic event. It is disappointing to learn that not only the travel company and TIC were not able to realize the risk involved in this particular activity showed by the lack of risk assessment, they were also not alerted after loss of nine precious lives. That in a way shows how insensitive the Hong Kong travel industry is to the well-being of customers. Regardless of whether this tragedy could possibly be avoided, the cursory attitude in assessing risk and reflecting after the accident as showed from the testimony given by LAU being senior management of Kuoni, given its reputation as one of the most high-end travel companies in Hong Kong, was unsatisfactory in my view. Similarly, I consider TIC’s reaction after the accident to be too slow and attitude too passive. The AAIC report was issued in December 2013 and I expect TIC should have looked into the matter thoroughly and reviewed the present guidelines on outbound activities involving risk much earlier instead of waiting for the result of this inquest.\n57.\nFurther, I consider that information or assistance currently provided by TIC to travel companies and more importantly to customers as to risks involved in various activities operated at various countries to be insufficient.\nRecommendations to Travel Industry Council (TIC)\n58.\nAnalyzed as the above, I now recommend:\n1) TIC to conduct a thorough research and collect data from the industry so as to list out popular activities operated in different countries offered by travel companies involving certain degree of risk. TIC to categorize the degree of risk in respect of different activities provided in different countries for industry as reference. Such list should be updated from time to time;\n2) TIC to set out clear guidelines for travel companies as to the necessary information of activities involving certain degree of risk to be provided to customers before taking part in such activities;\n3) TIC to set out clear and specific guidelines for travel companies that customers should be reminded that their travel insurance may not cover activities involving certain degree of risk;\n4) TIC to look into travel companies’ duty and responsibility in selecting and supervising the local service providers and review the existing guidelines when destination management companies are engaged;\n5) TIC to set out new guidelines on travel companies’ duty and responsibility to supervise destination management companies;\n6) TIC to set out safety guidance and advertise to customers as to the importance of obtaining details of travel policy insurance and information on activities involving risk before enrolment.\nRecommendations to Kuoni\n59.\nI also recommend:\n1) Kuoni to obtain sufficient information from local service providers and conduct thorough risk assessment on activities involving certain degree of risk provided to customers before offering the same;\n2) Kuoni to conduct thorough evaluation after every major accident taking place during tours provided by them so as to find out the cause of the accident and consider if there is anything that can be done to improve the quality and safety of service provided to customers.\n3) Kuoni to provide sufficient information to customers about activities involving certain risk and remind them in more specific and clear terms that activities involving risk may not be covered by their travel insurance;\n4) Kuoni to provide more training and information to front desk staff, including receptionists and tour escorts, so that they can be better equipped to explain the risk involved in activities provided by the company;\n5) Kuoni to set out clear criteria for selecting destination management companies and local service providers with first hand information and to closely monitor the service provided by destination management companies and local service providers.\n60.\nBoth TIC and Kuoni need to reply the Coroner in writing in three months’ time as to 1) whether the above recommendations are accepted and if yes 2) what steps have been taken to implement the recommendations and 3) reasons if the recommendations are not accepted.\n61.\nLastly, let me offer my deepest condolence again to the next of kin for their loss of loved ones and also thank you all for attending this inquest. I cannot even try to imagine the difficult journey you have gone through and dare not expect that by having this inquest you will be soothed in anyway. What I sincerely hope is that you will find this inquest helpful in some way having been informed of more details about the incident. I am indebted to the Hong Kong police, Mr Brook and Mr IP, SPP of Department of Justice, for their unfailing support in this investigation despite all the difficulties. I also thank counsel’s assistance from all parties. Lastly, I need to deliver my gratitude to the senior interpreters, Mr Wong and Mr Lai and the Clerk to Coroner, Miss On for their invaluable assistance throughout the hearing.\n62.\nIf parties and the press wish, a copy of this inquisition can be obtained from my clerk after the court rises. A press summary is also available for the press. The inquisition and press summary will also be uploaded to the Judiciary website very soon after today’s hearing. The inquest is hereby closed.\nJune CHEUNG\nCoroner\nRepresentation:\nMr Michael Ozorio, SC instructed by Messrs Paul C. K. Tang & Chiu for KUONI Travel (China) LTD.\nMr Bernard Murphy of Messrs Howse Williams Bowers for Ultramagic S.A.\nMr Foster Yim instructed by Messrs Wan Yeung Hau & Co. for next of kin of Ho Oi Hing, Ho Oi Ying, Ho Oi Ming, Tang Yuk Ling, Siu Chi Man & Kwan Pui Man Eleni\nMr Edward Brook and Mr Cliff Ip of Department of Justice as Coroner’s Officer\n[1]\nPp. 17-20 of the AAIC report (Exhibit C30)\n[2]\nP.12 of the prosecution report (Exhibit C32A)\n[3]\nParas.1.5.1, pp.16-20, AAIC report (Exhibit C30)\n[4]\nPp.74-84, prosecution report (Exhibit C32A)\n[5]\nP.17 of AAIC report (Exhibit C30)\n[6]\nP.5 of the investigation report (Exhibit C30)\n[7]\nP.6.8 of Maintenance Manual of Ultramagic HAB (Exhibit C50)\n[8]\nP.7 of the prosecution report (Exhibit C32A)\n[9]\nParagraph 2.6, page 140 of AAIC report (Exhibit C30)\n[10]\nParagraph 3.4.6 of Chadwick’s report (Exhibit C46a)\n[11]\npp.48-59 of Prosecution report (Exhibit C32A)\n[12]\np.66 of Prosecution report (Exhibit C32A)\n[13]\nPage 8 of Chadwick’s report (Exhibit C46a)\n[14]\nP.219 of the AAIC report (Exhibit C32a)\n[15]\nPage 217 and 218 of AAIC report and page 10, para 3.3.3 of Chadwick’s report (Exhibit C46a)\n[16]\nPara.2.12, page 2 of Chadwick’s report (Exhibit C46a)\n[17]\nParagraphs 6.1-6.8 of Chadwick’s report (Exhibit C46a)\n[18]\nParagraph 4.1.4, page 149 of AAIC report (Exhibit C30)\n[19]\nPara. 4.14, page 20 of Chadwick’s report (Exhibit C46a)\n[20]\nExhibit C1\n[21]\nExhibits C8 and C9\n[22]\nExhibit C35\n[23]\nExhibit C5\n[24]\nExhibit C5\n[25]\nExhibit C6\n[26]\nSky Cruise HAB leaflet (Exhibit C11)\n[27]\nExhibit C6\n[28]\nExhibit C34\n[29]\nExhibit C 36\n[30]\npage 140 of AAIC report, comment 13 of Chadwick report (Exhibit C46a)\n[31]\ncomments 12 of Chadwick report (Exhibit C46a)\n[32]\npp.75-86 of the prosecution report (Exhibit C32a)\n[33]\nParagraph 3.4.4, p.11 of Chadwick’s report (Exhibit C46a)\n[34]\nParagraph 5(g), pp. 22 and 23 of Chadwick’s report (Exhibit C46a)\n[35]\nParagraph A1.1.1 if Risk Solution Manual (Exhibit C36 and 36A)", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2013/CCDI000346_2013.doc", + "file_name": "CCDI000346_2013.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkcrc/2016_HKCrC_7/case.json b/en_cases_hkcrc/2016_HKCrC_7/case.json new file mode 100644 index 0000000..ea264ab --- /dev/null +++ b/en_cases_hkcrc/2016_HKCrC_7/case.json @@ -0,0 +1,26 @@ +{ + "Date": "7 Jun, 2016", + "Action No.": "CCDI352/2013", + "Neutral Cit.": "[2016] HKCrC 7", + "case_title": "RE HO OI HING AND OTHERS", + "page_title": "RE HO OI HING AND OTHERS | [2016] HKCrC 7 | HKLII", + "case_history": [ + { + "name": "CCDI352/2013", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2013/352" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkcrc/2016/7", + "neutral_cit": "[2016] HKCrC 7", + "court_code": "HKCRC", + "content": "CCDI346/2013 RE HO OI HING AND OTHERS\nPress Summary (English)\nPress Summary (Chinese)\nCCDI 346-354/2013 (PW)\nIN THE CORONER’S COURT\nTHE HONG KONG SPECIAL ADMINSTRATIVE REGION\n(Case No. CCDI 346-354 of 2013)\nHO Oi-hing\nHO Oi-ying\nHO Oi-ming\nTANG Yuk-ling\nSIU Chi-man\nKWAN Pui-man Eleni\nPOON Lau-tim\nTO Sau-ching\nPOON Tak-sze\nCoram: June Cheung, Coroner\nDates of hearing: 15-26 Feb, 2 March, 9 March, 31 March and 23 May 2016\nDate of delivery of inquisition: 7 June 2016\n____________________\nI N Q U I S I T I O N\n_____________________\nIntroduction\n1.\nI have mentioned at the commencement of and during this inquest, but I will reiterate here: that the purpose of this Inquest is to inquire into the cause of the death and the circumstances connected with the death. We are not concerned with the fault, civil liability or compensation here. Although we have looked into matters concerning travel insurance as well as responsibility of travel agent at different locality, those, as I have mentioned more than once, were to facilitate me in making practicable recommendation to prevent future tragedy. In fact, the law expressly prohibits any conclusion being framed in such a way as to determine any question of civil liability. Therefore the question as to whether or not there was negligence such as to give rise to an action for damages or compensation is not a matter for this court; - that is a matter for the civil courts. My role here is to determine simply: what happened and what did not happen as well as making practicable recommendation having the hard lesson learnt.\n2.\nThe standard of proof I apply in this inquest, unless I specify otherwise, when deciding upon all matters is what known is as “on a balance of probabilities”. In other words, is it more likely than not that a fact existed or an event occurred.\n3.\nDespite the difficulties encountered during the investigation, namely the fact that all eye witnesses of incident were not available, the court was not able to examine the real exhibits and that Hong Kong itself does not have experience or expertise in hot-air ballooning, this court has fortunately obtained two detailed reports from the Egyptian authority which were admitted as evidence, namely, 1) the investigation report issued by the Egyptian Ministry of Civil Aviation in December 2013 (“\nAAIC report\n”) governed by Annex 13 to the Convention on International Civil Aviation and 2) the Public prosecution report signed by the “President of the Appeals, Acting Chairman of the Technical Officer to the Officer of the Attorney General of the Arab Republic of Egypt (“\nProsecution report\n”) containing the transcript and memorandum from the General Prosecutor’s office. The two reports are in my view thorough, detailed and professionally produced by persons with the necessary skills, knowledge and expertise. We also have the benefit of having Mr. Chadwick, General Aviation Flight Standard Officer (Balloon Operations) from the UK Civil Aviation Authority, to assist this court to understand the two reports and operation of hot air balloon (“\nHAB”\n) in general. I consider Mr. Chadwick’s expert evidence was most helpful, impartial and professional.\n4.\nDuring the inquest, we have called 9 witnesses: they were Mr Wilson AU (CW1) (“\nAU\n”) and LAU Tak ping (CW3) (“\nLAU\n”) from Kuoni Travel (“\nKuoni\n”); Mr Wong Kong Sing (CW2), one of the tour member who did not join the optional hot air balloon ride; Mr Joseph Tung, Chairman of the Travel Industry Council (“\nTIC\n”) (CW4), Mr Chin Shing (CW5) who was responsible for making the HAB model for the purpose of this inquest and two Arabic translators for clarification of some of the contents of the reports (CW6 and CW7); Mr Chadwick (CW8), the HAB expert mentioned above and finally Miss Scarlett SO Lai-kuen (CW9), person in charge in Hong Kong of Paradise Travel (“\nParadise\n”) which was the Destination Management Company (“\nDMC”\n) engaged by Kuoni for this Egypt tour. Their evidence covered a number of issues in great details that apparently might not be strictly relevant to the findings at inquest set out in Form 12 but essential for this court to understand the background of the case and finally making recommendation to prevent future similar tragedy.\nGeneral course of event leading to the deaths\n5.\nThe present case may be one of the most tragic incidents happened while Hong Kong citizens were travelling abroad. As a matter of fact, it was the deadliest hot air ballooning disaster in history resulted in 19 deaths, 9 of which were the deceased in the present inquest. The general course of event was largely undisputed. All the nine deceased, together with 6 other tour members who did not join the HAB ride, were joining a 10 days’ tour to Egypt departing on 22 February 2013 organized by Kuoni. The HAB ride in question took place in Luxor city and was one of the self-pay optional activities offered in the tour. Kuoni has engaged Paradise as their DMC responsible for the arrangement in Egypt and Paradise has chosen Egyptian Airship and Balloon-Sky Cruise Company (“\nSky Cruise\n”) as the local HAB service provider.\n6.\nAt small hours on 26 Feb 2013, the 9 deceased, AU, tour escort of Kuoni, and Mostafa, assistant from Paradise, set off from hotel to the place where the balloon would take off. It was around 0615 hours local time when the balloon took off with 20 passengers. When the balloon had flown for more than 35 minutes, the pilot instructed the ground crew to receive the drop line starting the landing procedure. The HAB suddenly caught fire in the air which caused major injury to the pilot who exited the basket followed by a few passengers. While the balloon was still burning with less weight on the basket, it kept ascending until the envelope was so badly damaged, incapable of supporting the basket and fell on the field. As a result of the incident, 19 passengers were dead, 9 of which were the deceased of the present inquest. The pathologists found that the injury causing each of their death to be multiple injuries and burns.\nCause of the accident\n7.\nThe HAB in question was manufactured in 2004 by a Spanish balloon company called Ultramagic and registered as SU 283. The balloon type was “Ultramagic N425” and Sky Cruise bought it in 2005 from a Sweden operator. The balloon was operated by wind action effects for horizontal movements while vertical movements control was made through the control of the burners by the balloon pilot.\n8.\nOn the evidence, the take-off procedures seemed to be normal and the balloon had flown for about 35 minutes before the fire started in the course of landing.\nEvidence from the Pilot\n9.\nThe only surviving eye-witness of the event who has given evidence to the Egyptian authority was the pilot of the HAB in question, Mr Momen Murad Ali Hussein, Egyptian, aged 29. The other surviving passenger was not willing to give evidence. The pilot has held a balloon pilot commercial licence issued by the Egyptian Civil Aviation Authority since 2006. He was firstly interrogated by the authority when he was badly injured in bed after the accident. He was further taxed for the purpose of prosecution in April 2013 and he gave a statement to the investigation authority again on 17 June 2013\n[1]\n. The prosecution was not proceeded with finally\n[2]\n. His evidence was contained in the AAIC report\n[3]\nand prosecution report\n[4]\n.\n10.\nHe stated that because there was no maintenance manager available at the time, he took a look at the balloon and ensured the hoses were safely installed using sense of smell before taking off. At the time of taking off, he contacted the control tower but no one was there to answer him. He said however the take-off procedures went smoothly and the balloon kept flying like usual until it started to land at around 10 meters height from the ground. At the beginning of the landing, the fuel quantity for both aft cylinders showed ¼ capacity, whilst the forward burners were not used except for the “pilot light”. After about 35 minutes, the pilot used the forward cylinders. All of a sudden, a fire hit him on his back and ejected him from the balloon. He was not able to take any measures to control the fire, neither using the extinguisher nor turning off the valve of the gas cylinder.\n11.\nThe pilot also stated that at the beginning of the landing, he dropped the rope out of the basket before he heard a loud sound of a fire flame. He did not notice any interference between the rope and any of the hoses. The location of the drop line rope is far from the hoses, he believed it cannot be scrambled around them. Neither did he smell any gas nor hear any explosion sound of any part. All he heard was the sound of a fire flame. The fire sound was similar to the spraying sound coming out of an “insect repellant pressurized can”. He said the fire came from the forward burners but was not able to identify the exact location of the fire source. The fire was from left side and his injuries mainly on the left side. The fire was in one direction of yellow color.\n12.\nHe could not conclusively identify the source of the flame. He believed that the cause of accident could be as a result of defect of\n[5]\none of the hoses connecting the cylinder to the burner.\n13.\nThe Egyptian investigation\n[6]\nalso showed that the surviving pilot was suffering from burn wounds scattered on his head, his face, his back, his left upper limb and right upper arm, and upper chest and abdomen and lower limbs. Skin grafting operations were conducted.\nMaintenance of the hoses\n14.\nThe maintenance manual states the need for a special inspection of the hoses every ten years and to check if there are any cuts or damage.\n[7]\nIt is said that the maintenance manager conducted a 100 hour annual inspection dated 5 October 2012 under the supervision of Egyptian Civil Aviation Authority and the Validity Certificate was renewed for the period of 13 October 2012 until 12 October 2013\n[8]\n.\n15.\nWithin the AAIC analysis\n[9]\n, it is stated that maintenance carried out by Sky Cruise did not always refer to the appropriate part number or serial number, as per the full maintenance procedures.\n[10]\n16.\nOn the other hand, Hasan Muhammad Kinnawi, the assistant of the Ground Team Head for the HAB who was responsible for supervising the workers in taking off and landing, stated that gas leakage was a usual occurrence in his job, and they usually noticed the leakage by smell it and would change it without mentioning of any reporting system. He also said that the operation manager (ground team head) and the maintenance engineer were both absent on the day of the incident for unknown reasons\n[11]\n. The operation manager of Viking Company, another HAB company in Luxor, also said that gas leakage of HAB happened a lot.\n[12]\n17.\nMr Chadwick commented\n[13]\nthat the hose that was attached to the burner that was made in 2005 and may have accumulated high flight hours may not necessarily be directly a contributing factor to the accident. Hoses with many more confirmed flying hours and much older are being regularly used in the world hot air balloon fleet. At the time of this report, the UK CAA are unaware of another hot air balloon accident that is attributed to an in-flight hose failure of the nature specified in the report, this being largely due to the stringent inspection and maintenance requirements in of HAB activities in UK and the implementation of it.\nConclusions from the Egyptian authority\n18.\nIt is stated in AAIC report (Exhibit C30), at page 147, that:\n“The probable cause for the accident as seen by the investigation committee is due to a (1)\nhose fuel leak\nat the upper portion of the forward right hose connected to burner number 193 capturing its ignition source from burner’s fire causing a fire that caused a major and direct injury to the (2)\nballoon captain\n” (my emphasis)\n19.\nNevertheless, it could not be ascertained from the investigation carried out by the Egyptian authority if the hose fuel leak was as a result of internal malfunction of the hose due to lack of inspection and/or maintenance or if there was an outer force pulling off the hose from the burner, e.g. tangling by drop line at the time of landing.\n20.\nThe AAIC report also considered two contributing factors to the accident at page 147 of the report:\n“1. Maintenance actions that were carried out on the hoses could not indicate the need to replace the hose that was the cause of the accident”\n2. The part number of the hose connected to the burner 193 was for a hose made in 2005 and therefore it has accumulated high flight hours and sometimes under adverse conditions”\n21.\nOn the other hand, the Spanish Civil Aviation Commission of Accidents (\nCIAIAC\n) made their point in their letter\n[14]\n, as the accredited representative from Spain in the Egyptian investigation, that:\n“the simultaneity or coincidence in time of the action of pulling down the balloon by the ground crew through the drop line rope (handling line) and the start of the gas leak and a further fire should be considered as a significant condition for the accident scenario under which the fire broke out”\n22.\nFurther conclusion by CIAIAC\n[15]\nwas that:\n“- Operator maintenance discrepancy issues and certain lack of maintenance control were evident during the AAIC investigation;\n- With regard to this particular flight, the pre-departure check had not been fully completed by the balloon pilot.”\nFinding at inquest in Form 12\n23.\nHaving heard all the evidence I accept and find that:\nInjury causing death\nThe medical causes of death for all of the deceased were\nmultiple injuries and burns.\nTime, place and circumstances at or in which injury was sustained\nAll nine deceased died in the morning of 26 Feb 2013 during a hot-air balloon ride over Luxor City when the balloon caught fire during the flight after the landing procedure had started. The fire was due to hose fuel leak at the upper portion of the forward right hose connected to the burner number 193. Such fire also caused serious and direct injury to the balloon pilot who was unable to do anything to control the fire.\nConclusion as to the deaths\nI find the conclusion as to the deaths of all deceased to be\ndeaths by accident.\n24.\nI now also read out the Particulars for the time being of each deceased required by the Birth and Deaths Registration Ordinance (\nCap 174\n) to be registered concerning the death (See form 12 attached for each deceased).\nConsideration of recommendation\n25.\nUnder\nsection 44\n(2) of the\nCoroners Ordinance\n(\nCap 504\n), the coroner at an inquest may make recommendation designed:\n(a) to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held;\n(b) to prevent other hazards to life disclosed by the evidence at the inquest;\n(c) to bring to the attention of a person who may have power to take appropriate action any deficiencies in a system or method of work which are disclosed by the evidence at the inquest and which are of public concern.\n26.\nThe following are some features of the evidence which are helpful to me in considering recommendations to be made after the inquest.\nRisk involved in HAB ride in Egypt\n27.\nHAB is an activity not available in Hong Kong and has become a popular activity around the world and welcomed by Hong Kong tourists travelling abroad. As HAB was operated under apparently simple mechanics and the speed of the same is generally quite slow and steady for commercial/tourism purpose, the risk of the same was generally not recognized by tourists. Although Mr LAU of Kuoni testified that he, as a member of senior management responsible for designing tour, viewed that HAB ride involved moderate degree of risk, Kuoni has not conducted any risk assessment on this activity before offering them and there was no particular attention, guidelines or information concerning risk of taking part in this activity provided to their employees, including front desk receptionists or tour escorts nor their customers. LAU said that they basically relied on the fact that other companies were also offering HAB activities and they were aware that HAB was offered in many other countries and considered to be safe in general.\n28.\nHAB is a type of aircraft and a highly regulated industry. Of course, each jurisdiction has its own civil authority to regulate this activity. It was emphasized at times by Mr Ozorio, SC, representing Kuoni, that HAB ride is a safe activity by quoting Mr Chadwick’s report: “the advancement in fabric technology and envelope rapid deflation systems has facilitated larger balloons to be operated with a high degree of safety and reliability.”\n[16]\nHowever, since HAB ride is taken place in the air with considerable height, it undoubtedly involves a certain degree of risk. By giving a simple click in the internet will show a number of serious fatal HAB accidents occurred in the past around the world. That is why hot air ballooning needs stringent regulation on the airworthiness and operation of the balloon and pilot licensing scheme. In fact, as testified by Mr Chadwick, UK has developed a set of stringent regulations to ensure safety of air ballooning activities especially the commercial passenger carrying balloon has been vastly developed over the years around the world\n[17]\n. The safety of and risk involved in this activity actually depend on how stringent such regulations are and how well the same are implemented.\n29.\nIt is of note that AAIC report did make a recommendation, at p.149 of the report,\n[18]\nthat:\n“Issue necessary instructions to balloon companies to assure informing passengers when they reserve their flights that this kind of sports\nincluded some degree of risk\nand for the purpose of adventure in order that passengers would make their decisions from the beginning .” (\nmy emphasis\n)\n30.\nIn relation to that, Mr Chadwick responded in his report\n[19]\nthat:\n“Many hot-air balloon passenger flights are bought by a third party as a present, with the actual passenger not finding out about their flight until the day of the flight. However, it is accepted that flying as a passenger in a hot-air balloon\ninvolves certain different threats\nto that of flying on a commercial airliner, and the AAIC is correct that information as to the physical requirements of flying in a hot-air balloon needs to be given at the point of reservation. This would therefore have implications to tour operators and local representatives at resorts, etc.” (\nmy emphasis\n)\nInformation about HAB ride provided by Kuoni to its staff\n31.\nThe present tour was the fifth Egypt tour Mr AU led as he testified. He started escorting Egypt tour since Sept 2012. He testified that before he led the first Egypt tour it was the experienced colleagues sharing to him local information about Egypt and he has not received any formal training or briefing relating to safety of leading tour in Egypt or taking part in hot air balloon activities. About half to one month prior to the 1\nst\nEgypt tour escorted by him in Sept 2012, experienced colleagues did mention to him briefly and casually in office how HAB was operated by wind, the flight distance and landing posture. Apart from that, no other information or training was given to him in respect of the risk of taking HAB ride. He was also told that people who had heart condition, hypertension and fear of height should not take part in HAB.\nInformation about HAB provided to tour members\n32.\nIn early 2013, Mr AU was assigned by Kuoni to host the “tea party” on 7 Feb 2013 for the present tour. By then, he did not know if he would be the tour escort of the tour. About a week before the departure, Mr AU was informed by Kuoni to escort the tour in question.\n33.\nThere is no dispute that the need for customers to purchase comprehensive travel insurance before departure is generally set out in the tour booking form\n[20]\nand the receipts issued by Kuoni to the deceased\n[21]\n. It was also reminded in the receipts, though in small prints, under the heading of “Important Notice” that customers are suggested to read carefully the coverage and relevant clauses in their insurance policies to ensure sufficient coverage in case of accident. I am also well aware that Kuoni was not allowed by the TIC\n[22]\nnor did they put pressure upon or force customers to purchase Kuoni’s own Generali insurance. The question is whether the customers are provided with clear and sufficient information concerning the activity they are joining and the risk involved in it before they made an informed decision of participation.\n34.\nAU said that during the tea party, among other information, there was a note named “Safety guidance of activities in Middle East and African area”\n[23]\n, provided to tour members. On which there was a paragraph concerning taking HAB rides which stated to the effect that participants shall follow staff’s safety guidance and rules of activity. Participants shall only leave the balloon as directed by the staff upon landing of the balloon.\n[24]\n35.\nAt the tea party, tour members were also provided with a Price list of Self-pay Activities in Middle East and Africa\n[25]\non which it was said relating to HAB ride: “Go on a hot air balloon ride in Luxor to view the beauty of Nile and Luxor.\nThis activity includes breakfast and insurance\n. An aviation certificate will be issued: Approx. 45 minutes (the entire trip takes approx. 2.5 hrs: USD 190 for all age group” (\nmy emphasis\n)\n36.\nThe information given to customers in the above price list: “this activity includes insurance” was ambiguous. When Senior Manager LAU was asked as to what it exactly meant, he said vaguely that might mean this activity included flying insurance taken by Sky Cruise and customers were covered by insurance when they take part in this HAB activity. LAU said they in fact just translated and copied the information stated on the Sky Cruise’s leaflet\n[26]\n. In my view, this clause may let the customers misunderstand that their joining of this activity was covered by insurance which turned out to be not the case, as revealed from the evidence of this inquest. Should the members be warned more clearly and specifically that their insurance may not cover this HAB activity, their decision to join the activity may be changed.\n37.\nThis court is well aware of its limited jurisdiction. I am not concerned about why 6 deceased out of 9 did not buy Kuoni’s travel insurance but bought their own Comprehensive Travel Insurance from China Merchants Insurance Company Limited. Nor is this court attempting to explore the reasons why they were not insured. My concern is whether practicable recommendation could be made to prevent recurrence of similar fatalities. The ambiguous wording on the above optional self-pay activity price list\n[27]\nabout the HAB ride and the lack of sufficient information provided to the customers joining the HAB ride so that they could make better assessment of the risk may affect their choices of participating the activity.\n38.\nOn AU’s evidence, he said that when tour members were paying the fees the day before the ride, he had told them briefly information about the duration of the flight, what scenery to be seen and advised them not to join if they have heart condition, hypertension and fear of height. He has also shown pictures taken about the ride before to the tour members. Upon arrival at the taking-off place before they were approaching the balloon in question, he gave his group of 9 members some information as to the duration of the flight and landing posture. He also told them he would be taking pictures for them and taking care of their belongings. While the pilot of the HAB from Sky Cruise was conducting briefing session in English to 20 passengers before taking off, no instant interpretation was given by AU because he saw no need as his had given his own briefing to the deceased earlier on.\nInformation concerning HAB ride acquired by Kuoni\n39.\nIn fact, after hearing the evidence, it was not surprising why not much information relating to HAB ride was given to the employees and customers by Kuoni. On LAU’s evidence, even the senior management designing the tour did not have much information about the HAB ride. Apart from having been told by Paradise that Sky Cruise was licensed, insured and experienced, Lau basically told the court that he had never discussed the HAB ride among the senior management before offering this activity. Neither did he nor Kuoni as far as he knew conduct any formal evaluation after this incident.\n40.\nIt was submitted by Mr Ozorio, SC for Kuoni that there were no discussion nor query raised among tour members concerning risk of HAB ride and that they could easily do researches on their own should they wish so. That, as submitted, showed that the deceased were not concerned with the risk of HAB ride. I am afraid I cannot agree with that. It is not hard to observe that people who tend to join travel tour, as opposed to planning their own trip, are those who are either more senior in age or do not prefer to plan by their own. Participants of travel tours tend to leave the planning and entrust all the arrangement to the travel agent company and the tour escort. That may require higher responsibility from the travel company to conduct sufficient risk assessment before offering the activities and to provide sufficient information to the customers.\n41.\nIt is of note that this case happened in Egypt which is not a developed and advanced country like the United Kingdom, Australia or New Zealand where HAB industry is long established and governed by stringent regulatory system. It is common sense that an activity is considered to be safe in one country does not necessarily mean that it is safely operated in another.\n42.\nAs a matter of fact, it was not the first HAB accident occurred in Luxor. It is not disputed that there was a major HAB accident happened in Luxor as a result of which 16 passengers were injured which caused temporary suspension of the activity. I consider that Hong Kong travel companies apart from designating a DMC to appoint and liaise with the local service providers should also acquire sufficient information of such activity before offering the activities that involved a certain degree of risk.\n43.\nInstead of relying on the fact that other companies are also providing the same activity, travel companies should acquire sufficient information for its own risk assessment before providing such activity. The information is also essential for training the frontline staff. More importantly, customers should be well informed of the information before taking part in such activity involving certain degree of risk. In my view, the list of basic information about the HAB ride that should be acquired by the travel company and provided to the customers includes but not limited to:\n- Height and duration of the HAB flight;\n- Pictures of HAB showing the envelope, basket and burners of the HAB;\n- Size of the HAB;\n- Brief information about material and mechanics of operation of the HAB;\n-Information about experience and reputation of the company providing the HAB ride;\n- Any HAB accidents happened before in the destination and any of such related to the service provider;\n- The licensing system in the country as compared with other worldly recognized country.\n44.\nIn fact, it is stated at paragraph 9.3 of Code of Conduct for Outbound Tour Escort issued by TIC in October 2007\n[28]\nthat: “Prior to arranging self-pay activities, tour escort shall explain clearly to tour participants the content, duration, fee, safety and responsibility of such activities.” Checklist 4.2 attached to the same Code also provides a few items for checking in respect of optional activities.\nSelecting and supervising the local destination management company and/or service provider\n45.\nFrom the evidence of LAU, Senior manager of Kuoni responsible for product designing and tour planning, Kuoni started to offer HAB ride in 2008. Kuoni stopped offering HAB immediately after this accident, but still offer Egypt tour until June 2013. He said that Kuoni relied upon the fact that other Hong Kong travel companies were also offering HAB ride before they were offering the same. He was aware that HAB ride was also provided in other countries around the world and was considered to be safe by other companies. He said that some of their colleagues also had the experience of HAB ride in other companies before they joined Kuoni.\n46.\nWhen asked if there was any risk assessment of HAB ride in Egypt done by him or Kuoni as far as he knew before the accident, LAU replied negative and said that they usually relied on the local licensing system and if the company was insured. He was informed by Paradise that Sky Cruise was licensed and insured (being one of criteria of obtaining license). Surprisingly, Kuoni has not even obtained a copy of those documents but just relied on Paradise words until the accident occurred. He was told by Paradise that Sky Cruise was an experienced operator of HAB and started to operate HAB activities in 90s. Kuoni basically relied on the choice and information given by Paradise. LAU said that they also relied on feedback from tour escorts and customers when considering the quality of service provided by local company.\n47.\nDespite the absence of any risk assessment done by LAU/Kuoni before offering HAB ride, he agreed that HAB contained certain degree of risk. He considered HAB ride as an activity having moderate degree of risk. As to what training, if any, was given to tour escort or front desk staff, he said there would only be casual sharing given by experienced colleagues to junior ones. Kuoni did not have particular safety guidelines or briefing of HAB ride provided to staff. During the tour in Egypt, AU basically was responsible for liaisoning with the local guide/assistant there called Mostafa and relied on him for all the local arrangements.\n48.\nMiss Scarlet So, the person in charge of Paradise in Hong Kong testified that she had not received any training on travel industry. She worked for Osama, founder of Paradise in Egypt, since 2005 through an introduction by a common friend. She did not have any travel or working experience in Egypt. She, although being the person in charge of Paradise in Hong Kong and having the title as Regional Manager, basically said that she was not more than a mail box transferring message between Kuoni and Osama. In relation to the choosing Sky Cruise, she said it was Osama’s choice and she had no idea why it was chosen. She said there was no discussion between Kuoni and her on HAB activities. Before the accident, she has never given any copy of Sky Cruise’s license or insurance but just told Kuoni that Sky Cruise was chosen as the HAB service provider upon Osama’s instruction.\n49.\nA Risk Solutions Manual for Travel Industry in Hong Kong was issued by TIC in February 2008\n[29]\n. Paragraph A1.1.1 of the Manual provided a Supplier selection criteria checklist. However, the checklist does not cover present situation in which the Hong Kong travel company has engaged a DMC to select and arrange with the local service providers.\n50.\nDespite the fact that Kuoni was told by Paradise that Sky Cruise was an experienced service provider with reputation, it was revealed from the Egyptian investigation that the maintenance carried out at Sky cruise did not always refer to the appropriate part numbers or serial numbers, as per the full maintenance procedures\n[30]\n; for example: absence of record of the 5\nth\ntank (for inflating the balloon) and unclear basket number\n[31]\n. Further, gas leakage appeared to be a common problem as testified by the staff of balloon companies, which did not appear to cause serious concern by the company, which seemed to be quite contrary to the stringent UK reporting system as testified by Mr. Chadwick.\n51.\nRegarding operation of the present HAB, it was also revealed that the pilot was allowed to take off, despite absence of the maintenance engineer and the operation manager and that he was not able to contact the control tower until 10 minutes after taking off\n[32]\n. When the pilot was asked by the investigation team about the dissimilarity between his pre-departure check signature and his previous signature, he claimed that he would use several signatures in order not to be imitated! Mr. Chadwick could not help expressing his concern as to why anyone would want to imitate a pre-departure check signature during normal operation.\n[33]\nAlso, no summary or translation of pilot briefing was supplied to the passengers before taking off. It was however recommended by Mr. Chadwick that the use of laminated passenger safety briefing cards should complement the pilot’s briefing to passengers. The use of diagrams and briefing cards in major world language should be provided.\n[34]\n52.\nMy pointing out the above observation made after Egyptian investigation was not because I wanted to discuss or determine the fault or liability, but to show the danger of Hong Kong travel companies simply replying on words of DMC without conducting its own risk assessment. It is equally important for Hong Kong travel companies to properly select and supervise the service providers even after a DMC has been engaged.\n53.\nGiven the highly technical nature of HAB operation and the fact that the inquest does not have the advantage of hearing direct evidence, this court is not in the best position to make any conclusion or comments on the requirement of a safe HAB maintenance or operation.\n54.\nUpon hearing this inquest, I reckon that there is at present a lacuna in TIC’s guidance on Hong Kong travel companies’ duty and responsibility on local service providers when DMC is engaged. I note that there is quite a detailed list for TIC members to select local service providers\n[35]\n, however such manual does not cover situation when travel agent companies have entrusted a local DMC.\n55.\nApart from telling me that we should trust the licensing system of each country and it is very difficult for Hong Kong travel company to monitor local service providers as well as it is a worldwide common practice to engage a DMC to do the work for travel companies, Mr. Tung of TIC basically gave me no suggestion nor assistance as to how the service of Hong Kong travel companies can be improved and safety of Hong Kong customers be better safeguarded.\n56.\nTo my surprise, both Kuoni and TIC have never conducted any evaluation of the case until the present inquest. Neither has TIC done anything to review the existing guidelines. More than three years have lapsed since the date of this tragic event. It is disappointing to learn that not only the travel company and TIC were not able to realize the risk involved in this particular activity showed by the lack of risk assessment, they were also not alerted after loss of nine precious lives. That in a way shows how insensitive the Hong Kong travel industry is to the well-being of customers. Regardless of whether this tragedy could possibly be avoided, the cursory attitude in assessing risk and reflecting after the accident as showed from the testimony given by LAU being senior management of Kuoni, given its reputation as one of the most high-end travel companies in Hong Kong, was unsatisfactory in my view. Similarly, I consider TIC’s reaction after the accident to be too slow and attitude too passive. The AAIC report was issued in December 2013 and I expect TIC should have looked into the matter thoroughly and reviewed the present guidelines on outbound activities involving risk much earlier instead of waiting for the result of this inquest.\n57.\nFurther, I consider that information or assistance currently provided by TIC to travel companies and more importantly to customers as to risks involved in various activities operated at various countries to be insufficient.\nRecommendations to Travel Industry Council (TIC)\n58.\nAnalyzed as the above, I now recommend:\n1) TIC to conduct a thorough research and collect data from the industry so as to list out popular activities operated in different countries offered by travel companies involving certain degree of risk. TIC to categorize the degree of risk in respect of different activities provided in different countries for industry as reference. Such list should be updated from time to time;\n2) TIC to set out clear guidelines for travel companies as to the necessary information of activities involving certain degree of risk to be provided to customers before taking part in such activities;\n3) TIC to set out clear and specific guidelines for travel companies that customers should be reminded that their travel insurance may not cover activities involving certain degree of risk;\n4) TIC to look into travel companies’ duty and responsibility in selecting and supervising the local service providers and review the existing guidelines when destination management companies are engaged;\n5) TIC to set out new guidelines on travel companies’ duty and responsibility to supervise destination management companies;\n6) TIC to set out safety guidance and advertise to customers as to the importance of obtaining details of travel policy insurance and information on activities involving risk before enrolment.\nRecommendations to Kuoni\n59.\nI also recommend:\n1) Kuoni to obtain sufficient information from local service providers and conduct thorough risk assessment on activities involving certain degree of risk provided to customers before offering the same;\n2) Kuoni to conduct thorough evaluation after every major accident taking place during tours provided by them so as to find out the cause of the accident and consider if there is anything that can be done to improve the quality and safety of service provided to customers.\n3) Kuoni to provide sufficient information to customers about activities involving certain risk and remind them in more specific and clear terms that activities involving risk may not be covered by their travel insurance;\n4) Kuoni to provide more training and information to front desk staff, including receptionists and tour escorts, so that they can be better equipped to explain the risk involved in activities provided by the company;\n5) Kuoni to set out clear criteria for selecting destination management companies and local service providers with first hand information and to closely monitor the service provided by destination management companies and local service providers.\n60.\nBoth TIC and Kuoni need to reply the Coroner in writing in three months’ time as to 1) whether the above recommendations are accepted and if yes 2) what steps have been taken to implement the recommendations and 3) reasons if the recommendations are not accepted.\n61.\nLastly, let me offer my deepest condolence again to the next of kin for their loss of loved ones and also thank you all for attending this inquest. I cannot even try to imagine the difficult journey you have gone through and dare not expect that by having this inquest you will be soothed in anyway. What I sincerely hope is that you will find this inquest helpful in some way having been informed of more details about the incident. I am indebted to the Hong Kong police, Mr Brook and Mr IP, SPP of Department of Justice, for their unfailing support in this investigation despite all the difficulties. I also thank counsel’s assistance from all parties. Lastly, I need to deliver my gratitude to the senior interpreters, Mr Wong and Mr Lai and the Clerk to Coroner, Miss On for their invaluable assistance throughout the hearing.\n62.\nIf parties and the press wish, a copy of this inquisition can be obtained from my clerk after the court rises. A press summary is also available for the press. The inquisition and press summary will also be uploaded to the Judiciary website very soon after today’s hearing. The inquest is hereby closed.\nJune CHEUNG\nCoroner\nRepresentation:\nMr Michael Ozorio, SC instructed by Messrs Paul C. K. Tang & Chiu for KUONI Travel (China) LTD.\nMr Bernard Murphy of Messrs Howse Williams Bowers for Ultramagic S.A.\nMr Foster Yim instructed by Messrs Wan Yeung Hau & Co. for next of kin of Ho Oi Hing, Ho Oi Ying, Ho Oi Ming, Tang Yuk Ling, Siu Chi Man & Kwan Pui Man Eleni\nMr Edward Brook and Mr Cliff Ip of Department of Justice as Coroner’s Officer\n[1]\nPp. 17-20 of the AAIC report (Exhibit C30)\n[2]\nP.12 of the prosecution report (Exhibit C32A)\n[3]\nParas.1.5.1, pp.16-20, AAIC report (Exhibit C30)\n[4]\nPp.74-84, prosecution report (Exhibit C32A)\n[5]\nP.17 of AAIC report (Exhibit C30)\n[6]\nP.5 of the investigation report (Exhibit C30)\n[7]\nP.6.8 of Maintenance Manual of Ultramagic HAB (Exhibit C50)\n[8]\nP.7 of the prosecution report (Exhibit C32A)\n[9]\nParagraph 2.6, page 140 of AAIC report (Exhibit C30)\n[10]\nParagraph 3.4.6 of Chadwick’s report (Exhibit C46a)\n[11]\npp.48-59 of Prosecution report (Exhibit C32A)\n[12]\np.66 of Prosecution report (Exhibit C32A)\n[13]\nPage 8 of Chadwick’s report (Exhibit C46a)\n[14]\nP.219 of the AAIC report (Exhibit C32a)\n[15]\nPage 217 and 218 of AAIC report and page 10, para 3.3.3 of Chadwick’s report (Exhibit C46a)\n[16]\nPara.2.12, page 2 of Chadwick’s report (Exhibit C46a)\n[17]\nParagraphs 6.1-6.8 of Chadwick’s report (Exhibit C46a)\n[18]\nParagraph 4.1.4, page 149 of AAIC report (Exhibit C30)\n[19]\nPara. 4.14, page 20 of Chadwick’s report (Exhibit C46a)\n[20]\nExhibit C1\n[21]\nExhibits C8 and C9\n[22]\nExhibit C35\n[23]\nExhibit C5\n[24]\nExhibit C5\n[25]\nExhibit C6\n[26]\nSky Cruise HAB leaflet (Exhibit C11)\n[27]\nExhibit C6\n[28]\nExhibit C34\n[29]\nExhibit C 36\n[30]\npage 140 of AAIC report, comment 13 of Chadwick report (Exhibit C46a)\n[31]\ncomments 12 of Chadwick report (Exhibit C46a)\n[32]\npp.75-86 of the prosecution report (Exhibit C32a)\n[33]\nParagraph 3.4.4, p.11 of Chadwick’s report (Exhibit C46a)\n[34]\nParagraph 5(g), pp. 22 and 23 of Chadwick’s report (Exhibit C46a)\n[35]\nParagraph A1.1.1 if Risk Solution Manual (Exhibit C36 and 36A)", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2013/CCDI000346_2013.doc", + "file_name": "CCDI000346_2013.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkcrc/2016_HKCrC_9/case.json b/en_cases_hkcrc/2016_HKCrC_9/case.json new file mode 100644 index 0000000..040ef18 --- /dev/null +++ b/en_cases_hkcrc/2016_HKCrC_9/case.json @@ -0,0 +1,26 @@ +{ + "Date": "7 Jun, 2016", + "Action No.": "CCDI354/2013", + "Neutral Cit.": "[2016] HKCrC 9", + "case_title": "RE HO OI HING AND OTHERS", + "page_title": "RE HO OI HING AND OTHERS | [2016] HKCrC 9 | HKLII", + "case_history": [ + { + "name": "CCDI354/2013", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2013/354" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkcrc/2016/9", + "neutral_cit": "[2016] HKCrC 9", + "court_code": "HKCRC", + "content": "CCDI346/2013 RE HO OI HING AND OTHERS\nPress Summary (English)\nPress Summary (Chinese)\nCCDI 346-354/2013 (PW)\nIN THE CORONER’S COURT\nTHE HONG KONG SPECIAL ADMINSTRATIVE REGION\n(Case No. CCDI 346-354 of 2013)\nHO Oi-hing\nHO Oi-ying\nHO Oi-ming\nTANG Yuk-ling\nSIU Chi-man\nKWAN Pui-man Eleni\nPOON Lau-tim\nTO Sau-ching\nPOON Tak-sze\nCoram: June Cheung, Coroner\nDates of hearing: 15-26 Feb, 2 March, 9 March, 31 March and 23 May 2016\nDate of delivery of inquisition: 7 June 2016\n____________________\nI N Q U I S I T I O N\n_____________________\nIntroduction\n1.\nI have mentioned at the commencement of and during this inquest, but I will reiterate here: that the purpose of this Inquest is to inquire into the cause of the death and the circumstances connected with the death. We are not concerned with the fault, civil liability or compensation here. Although we have looked into matters concerning travel insurance as well as responsibility of travel agent at different locality, those, as I have mentioned more than once, were to facilitate me in making practicable recommendation to prevent future tragedy. In fact, the law expressly prohibits any conclusion being framed in such a way as to determine any question of civil liability. Therefore the question as to whether or not there was negligence such as to give rise to an action for damages or compensation is not a matter for this court; - that is a matter for the civil courts. My role here is to determine simply: what happened and what did not happen as well as making practicable recommendation having the hard lesson learnt.\n2.\nThe standard of proof I apply in this inquest, unless I specify otherwise, when deciding upon all matters is what known is as “on a balance of probabilities”. In other words, is it more likely than not that a fact existed or an event occurred.\n3.\nDespite the difficulties encountered during the investigation, namely the fact that all eye witnesses of incident were not available, the court was not able to examine the real exhibits and that Hong Kong itself does not have experience or expertise in hot-air ballooning, this court has fortunately obtained two detailed reports from the Egyptian authority which were admitted as evidence, namely, 1) the investigation report issued by the Egyptian Ministry of Civil Aviation in December 2013 (“\nAAIC report\n”) governed by Annex 13 to the Convention on International Civil Aviation and 2) the Public prosecution report signed by the “President of the Appeals, Acting Chairman of the Technical Officer to the Officer of the Attorney General of the Arab Republic of Egypt (“\nProsecution report\n”) containing the transcript and memorandum from the General Prosecutor’s office. The two reports are in my view thorough, detailed and professionally produced by persons with the necessary skills, knowledge and expertise. We also have the benefit of having Mr. Chadwick, General Aviation Flight Standard Officer (Balloon Operations) from the UK Civil Aviation Authority, to assist this court to understand the two reports and operation of hot air balloon (“\nHAB”\n) in general. I consider Mr. Chadwick’s expert evidence was most helpful, impartial and professional.\n4.\nDuring the inquest, we have called 9 witnesses: they were Mr Wilson AU (CW1) (“\nAU\n”) and LAU Tak ping (CW3) (“\nLAU\n”) from Kuoni Travel (“\nKuoni\n”); Mr Wong Kong Sing (CW2), one of the tour member who did not join the optional hot air balloon ride; Mr Joseph Tung, Chairman of the Travel Industry Council (“\nTIC\n”) (CW4), Mr Chin Shing (CW5) who was responsible for making the HAB model for the purpose of this inquest and two Arabic translators for clarification of some of the contents of the reports (CW6 and CW7); Mr Chadwick (CW8), the HAB expert mentioned above and finally Miss Scarlett SO Lai-kuen (CW9), person in charge in Hong Kong of Paradise Travel (“\nParadise\n”) which was the Destination Management Company (“\nDMC”\n) engaged by Kuoni for this Egypt tour. Their evidence covered a number of issues in great details that apparently might not be strictly relevant to the findings at inquest set out in Form 12 but essential for this court to understand the background of the case and finally making recommendation to prevent future similar tragedy.\nGeneral course of event leading to the deaths\n5.\nThe present case may be one of the most tragic incidents happened while Hong Kong citizens were travelling abroad. As a matter of fact, it was the deadliest hot air ballooning disaster in history resulted in 19 deaths, 9 of which were the deceased in the present inquest. The general course of event was largely undisputed. All the nine deceased, together with 6 other tour members who did not join the HAB ride, were joining a 10 days’ tour to Egypt departing on 22 February 2013 organized by Kuoni. The HAB ride in question took place in Luxor city and was one of the self-pay optional activities offered in the tour. Kuoni has engaged Paradise as their DMC responsible for the arrangement in Egypt and Paradise has chosen Egyptian Airship and Balloon-Sky Cruise Company (“\nSky Cruise\n”) as the local HAB service provider.\n6.\nAt small hours on 26 Feb 2013, the 9 deceased, AU, tour escort of Kuoni, and Mostafa, assistant from Paradise, set off from hotel to the place where the balloon would take off. It was around 0615 hours local time when the balloon took off with 20 passengers. When the balloon had flown for more than 35 minutes, the pilot instructed the ground crew to receive the drop line starting the landing procedure. The HAB suddenly caught fire in the air which caused major injury to the pilot who exited the basket followed by a few passengers. While the balloon was still burning with less weight on the basket, it kept ascending until the envelope was so badly damaged, incapable of supporting the basket and fell on the field. As a result of the incident, 19 passengers were dead, 9 of which were the deceased of the present inquest. The pathologists found that the injury causing each of their death to be multiple injuries and burns.\nCause of the accident\n7.\nThe HAB in question was manufactured in 2004 by a Spanish balloon company called Ultramagic and registered as SU 283. The balloon type was “Ultramagic N425” and Sky Cruise bought it in 2005 from a Sweden operator. The balloon was operated by wind action effects for horizontal movements while vertical movements control was made through the control of the burners by the balloon pilot.\n8.\nOn the evidence, the take-off procedures seemed to be normal and the balloon had flown for about 35 minutes before the fire started in the course of landing.\nEvidence from the Pilot\n9.\nThe only surviving eye-witness of the event who has given evidence to the Egyptian authority was the pilot of the HAB in question, Mr Momen Murad Ali Hussein, Egyptian, aged 29. The other surviving passenger was not willing to give evidence. The pilot has held a balloon pilot commercial licence issued by the Egyptian Civil Aviation Authority since 2006. He was firstly interrogated by the authority when he was badly injured in bed after the accident. He was further taxed for the purpose of prosecution in April 2013 and he gave a statement to the investigation authority again on 17 June 2013\n[1]\n. The prosecution was not proceeded with finally\n[2]\n. His evidence was contained in the AAIC report\n[3]\nand prosecution report\n[4]\n.\n10.\nHe stated that because there was no maintenance manager available at the time, he took a look at the balloon and ensured the hoses were safely installed using sense of smell before taking off. At the time of taking off, he contacted the control tower but no one was there to answer him. He said however the take-off procedures went smoothly and the balloon kept flying like usual until it started to land at around 10 meters height from the ground. At the beginning of the landing, the fuel quantity for both aft cylinders showed ¼ capacity, whilst the forward burners were not used except for the “pilot light”. After about 35 minutes, the pilot used the forward cylinders. All of a sudden, a fire hit him on his back and ejected him from the balloon. He was not able to take any measures to control the fire, neither using the extinguisher nor turning off the valve of the gas cylinder.\n11.\nThe pilot also stated that at the beginning of the landing, he dropped the rope out of the basket before he heard a loud sound of a fire flame. He did not notice any interference between the rope and any of the hoses. The location of the drop line rope is far from the hoses, he believed it cannot be scrambled around them. Neither did he smell any gas nor hear any explosion sound of any part. All he heard was the sound of a fire flame. The fire sound was similar to the spraying sound coming out of an “insect repellant pressurized can”. He said the fire came from the forward burners but was not able to identify the exact location of the fire source. The fire was from left side and his injuries mainly on the left side. The fire was in one direction of yellow color.\n12.\nHe could not conclusively identify the source of the flame. He believed that the cause of accident could be as a result of defect of\n[5]\none of the hoses connecting the cylinder to the burner.\n13.\nThe Egyptian investigation\n[6]\nalso showed that the surviving pilot was suffering from burn wounds scattered on his head, his face, his back, his left upper limb and right upper arm, and upper chest and abdomen and lower limbs. Skin grafting operations were conducted.\nMaintenance of the hoses\n14.\nThe maintenance manual states the need for a special inspection of the hoses every ten years and to check if there are any cuts or damage.\n[7]\nIt is said that the maintenance manager conducted a 100 hour annual inspection dated 5 October 2012 under the supervision of Egyptian Civil Aviation Authority and the Validity Certificate was renewed for the period of 13 October 2012 until 12 October 2013\n[8]\n.\n15.\nWithin the AAIC analysis\n[9]\n, it is stated that maintenance carried out by Sky Cruise did not always refer to the appropriate part number or serial number, as per the full maintenance procedures.\n[10]\n16.\nOn the other hand, Hasan Muhammad Kinnawi, the assistant of the Ground Team Head for the HAB who was responsible for supervising the workers in taking off and landing, stated that gas leakage was a usual occurrence in his job, and they usually noticed the leakage by smell it and would change it without mentioning of any reporting system. He also said that the operation manager (ground team head) and the maintenance engineer were both absent on the day of the incident for unknown reasons\n[11]\n. The operation manager of Viking Company, another HAB company in Luxor, also said that gas leakage of HAB happened a lot.\n[12]\n17.\nMr Chadwick commented\n[13]\nthat the hose that was attached to the burner that was made in 2005 and may have accumulated high flight hours may not necessarily be directly a contributing factor to the accident. Hoses with many more confirmed flying hours and much older are being regularly used in the world hot air balloon fleet. At the time of this report, the UK CAA are unaware of another hot air balloon accident that is attributed to an in-flight hose failure of the nature specified in the report, this being largely due to the stringent inspection and maintenance requirements in of HAB activities in UK and the implementation of it.\nConclusions from the Egyptian authority\n18.\nIt is stated in AAIC report (Exhibit C30), at page 147, that:\n“The probable cause for the accident as seen by the investigation committee is due to a (1)\nhose fuel leak\nat the upper portion of the forward right hose connected to burner number 193 capturing its ignition source from burner’s fire causing a fire that caused a major and direct injury to the (2)\nballoon captain\n” (my emphasis)\n19.\nNevertheless, it could not be ascertained from the investigation carried out by the Egyptian authority if the hose fuel leak was as a result of internal malfunction of the hose due to lack of inspection and/or maintenance or if there was an outer force pulling off the hose from the burner, e.g. tangling by drop line at the time of landing.\n20.\nThe AAIC report also considered two contributing factors to the accident at page 147 of the report:\n“1. Maintenance actions that were carried out on the hoses could not indicate the need to replace the hose that was the cause of the accident”\n2. The part number of the hose connected to the burner 193 was for a hose made in 2005 and therefore it has accumulated high flight hours and sometimes under adverse conditions”\n21.\nOn the other hand, the Spanish Civil Aviation Commission of Accidents (\nCIAIAC\n) made their point in their letter\n[14]\n, as the accredited representative from Spain in the Egyptian investigation, that:\n“the simultaneity or coincidence in time of the action of pulling down the balloon by the ground crew through the drop line rope (handling line) and the start of the gas leak and a further fire should be considered as a significant condition for the accident scenario under which the fire broke out”\n22.\nFurther conclusion by CIAIAC\n[15]\nwas that:\n“- Operator maintenance discrepancy issues and certain lack of maintenance control were evident during the AAIC investigation;\n- With regard to this particular flight, the pre-departure check had not been fully completed by the balloon pilot.”\nFinding at inquest in Form 12\n23.\nHaving heard all the evidence I accept and find that:\nInjury causing death\nThe medical causes of death for all of the deceased were\nmultiple injuries and burns.\nTime, place and circumstances at or in which injury was sustained\nAll nine deceased died in the morning of 26 Feb 2013 during a hot-air balloon ride over Luxor City when the balloon caught fire during the flight after the landing procedure had started. The fire was due to hose fuel leak at the upper portion of the forward right hose connected to the burner number 193. Such fire also caused serious and direct injury to the balloon pilot who was unable to do anything to control the fire.\nConclusion as to the deaths\nI find the conclusion as to the deaths of all deceased to be\ndeaths by accident.\n24.\nI now also read out the Particulars for the time being of each deceased required by the Birth and Deaths Registration Ordinance (\nCap 174\n) to be registered concerning the death (See form 12 attached for each deceased).\nConsideration of recommendation\n25.\nUnder\nsection 44\n(2) of the\nCoroners Ordinance\n(\nCap 504\n), the coroner at an inquest may make recommendation designed:\n(a) to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held;\n(b) to prevent other hazards to life disclosed by the evidence at the inquest;\n(c) to bring to the attention of a person who may have power to take appropriate action any deficiencies in a system or method of work which are disclosed by the evidence at the inquest and which are of public concern.\n26.\nThe following are some features of the evidence which are helpful to me in considering recommendations to be made after the inquest.\nRisk involved in HAB ride in Egypt\n27.\nHAB is an activity not available in Hong Kong and has become a popular activity around the world and welcomed by Hong Kong tourists travelling abroad. As HAB was operated under apparently simple mechanics and the speed of the same is generally quite slow and steady for commercial/tourism purpose, the risk of the same was generally not recognized by tourists. Although Mr LAU of Kuoni testified that he, as a member of senior management responsible for designing tour, viewed that HAB ride involved moderate degree of risk, Kuoni has not conducted any risk assessment on this activity before offering them and there was no particular attention, guidelines or information concerning risk of taking part in this activity provided to their employees, including front desk receptionists or tour escorts nor their customers. LAU said that they basically relied on the fact that other companies were also offering HAB activities and they were aware that HAB was offered in many other countries and considered to be safe in general.\n28.\nHAB is a type of aircraft and a highly regulated industry. Of course, each jurisdiction has its own civil authority to regulate this activity. It was emphasized at times by Mr Ozorio, SC, representing Kuoni, that HAB ride is a safe activity by quoting Mr Chadwick’s report: “the advancement in fabric technology and envelope rapid deflation systems has facilitated larger balloons to be operated with a high degree of safety and reliability.”\n[16]\nHowever, since HAB ride is taken place in the air with considerable height, it undoubtedly involves a certain degree of risk. By giving a simple click in the internet will show a number of serious fatal HAB accidents occurred in the past around the world. That is why hot air ballooning needs stringent regulation on the airworthiness and operation of the balloon and pilot licensing scheme. In fact, as testified by Mr Chadwick, UK has developed a set of stringent regulations to ensure safety of air ballooning activities especially the commercial passenger carrying balloon has been vastly developed over the years around the world\n[17]\n. The safety of and risk involved in this activity actually depend on how stringent such regulations are and how well the same are implemented.\n29.\nIt is of note that AAIC report did make a recommendation, at p.149 of the report,\n[18]\nthat:\n“Issue necessary instructions to balloon companies to assure informing passengers when they reserve their flights that this kind of sports\nincluded some degree of risk\nand for the purpose of adventure in order that passengers would make their decisions from the beginning .” (\nmy emphasis\n)\n30.\nIn relation to that, Mr Chadwick responded in his report\n[19]\nthat:\n“Many hot-air balloon passenger flights are bought by a third party as a present, with the actual passenger not finding out about their flight until the day of the flight. However, it is accepted that flying as a passenger in a hot-air balloon\ninvolves certain different threats\nto that of flying on a commercial airliner, and the AAIC is correct that information as to the physical requirements of flying in a hot-air balloon needs to be given at the point of reservation. This would therefore have implications to tour operators and local representatives at resorts, etc.” (\nmy emphasis\n)\nInformation about HAB ride provided by Kuoni to its staff\n31.\nThe present tour was the fifth Egypt tour Mr AU led as he testified. He started escorting Egypt tour since Sept 2012. He testified that before he led the first Egypt tour it was the experienced colleagues sharing to him local information about Egypt and he has not received any formal training or briefing relating to safety of leading tour in Egypt or taking part in hot air balloon activities. About half to one month prior to the 1\nst\nEgypt tour escorted by him in Sept 2012, experienced colleagues did mention to him briefly and casually in office how HAB was operated by wind, the flight distance and landing posture. Apart from that, no other information or training was given to him in respect of the risk of taking HAB ride. He was also told that people who had heart condition, hypertension and fear of height should not take part in HAB.\nInformation about HAB provided to tour members\n32.\nIn early 2013, Mr AU was assigned by Kuoni to host the “tea party” on 7 Feb 2013 for the present tour. By then, he did not know if he would be the tour escort of the tour. About a week before the departure, Mr AU was informed by Kuoni to escort the tour in question.\n33.\nThere is no dispute that the need for customers to purchase comprehensive travel insurance before departure is generally set out in the tour booking form\n[20]\nand the receipts issued by Kuoni to the deceased\n[21]\n. It was also reminded in the receipts, though in small prints, under the heading of “Important Notice” that customers are suggested to read carefully the coverage and relevant clauses in their insurance policies to ensure sufficient coverage in case of accident. I am also well aware that Kuoni was not allowed by the TIC\n[22]\nnor did they put pressure upon or force customers to purchase Kuoni’s own Generali insurance. The question is whether the customers are provided with clear and sufficient information concerning the activity they are joining and the risk involved in it before they made an informed decision of participation.\n34.\nAU said that during the tea party, among other information, there was a note named “Safety guidance of activities in Middle East and African area”\n[23]\n, provided to tour members. On which there was a paragraph concerning taking HAB rides which stated to the effect that participants shall follow staff’s safety guidance and rules of activity. Participants shall only leave the balloon as directed by the staff upon landing of the balloon.\n[24]\n35.\nAt the tea party, tour members were also provided with a Price list of Self-pay Activities in Middle East and Africa\n[25]\non which it was said relating to HAB ride: “Go on a hot air balloon ride in Luxor to view the beauty of Nile and Luxor.\nThis activity includes breakfast and insurance\n. An aviation certificate will be issued: Approx. 45 minutes (the entire trip takes approx. 2.5 hrs: USD 190 for all age group” (\nmy emphasis\n)\n36.\nThe information given to customers in the above price list: “this activity includes insurance” was ambiguous. When Senior Manager LAU was asked as to what it exactly meant, he said vaguely that might mean this activity included flying insurance taken by Sky Cruise and customers were covered by insurance when they take part in this HAB activity. LAU said they in fact just translated and copied the information stated on the Sky Cruise’s leaflet\n[26]\n. In my view, this clause may let the customers misunderstand that their joining of this activity was covered by insurance which turned out to be not the case, as revealed from the evidence of this inquest. Should the members be warned more clearly and specifically that their insurance may not cover this HAB activity, their decision to join the activity may be changed.\n37.\nThis court is well aware of its limited jurisdiction. I am not concerned about why 6 deceased out of 9 did not buy Kuoni’s travel insurance but bought their own Comprehensive Travel Insurance from China Merchants Insurance Company Limited. Nor is this court attempting to explore the reasons why they were not insured. My concern is whether practicable recommendation could be made to prevent recurrence of similar fatalities. The ambiguous wording on the above optional self-pay activity price list\n[27]\nabout the HAB ride and the lack of sufficient information provided to the customers joining the HAB ride so that they could make better assessment of the risk may affect their choices of participating the activity.\n38.\nOn AU’s evidence, he said that when tour members were paying the fees the day before the ride, he had told them briefly information about the duration of the flight, what scenery to be seen and advised them not to join if they have heart condition, hypertension and fear of height. He has also shown pictures taken about the ride before to the tour members. Upon arrival at the taking-off place before they were approaching the balloon in question, he gave his group of 9 members some information as to the duration of the flight and landing posture. He also told them he would be taking pictures for them and taking care of their belongings. While the pilot of the HAB from Sky Cruise was conducting briefing session in English to 20 passengers before taking off, no instant interpretation was given by AU because he saw no need as his had given his own briefing to the deceased earlier on.\nInformation concerning HAB ride acquired by Kuoni\n39.\nIn fact, after hearing the evidence, it was not surprising why not much information relating to HAB ride was given to the employees and customers by Kuoni. On LAU’s evidence, even the senior management designing the tour did not have much information about the HAB ride. Apart from having been told by Paradise that Sky Cruise was licensed, insured and experienced, Lau basically told the court that he had never discussed the HAB ride among the senior management before offering this activity. Neither did he nor Kuoni as far as he knew conduct any formal evaluation after this incident.\n40.\nIt was submitted by Mr Ozorio, SC for Kuoni that there were no discussion nor query raised among tour members concerning risk of HAB ride and that they could easily do researches on their own should they wish so. That, as submitted, showed that the deceased were not concerned with the risk of HAB ride. I am afraid I cannot agree with that. It is not hard to observe that people who tend to join travel tour, as opposed to planning their own trip, are those who are either more senior in age or do not prefer to plan by their own. Participants of travel tours tend to leave the planning and entrust all the arrangement to the travel agent company and the tour escort. That may require higher responsibility from the travel company to conduct sufficient risk assessment before offering the activities and to provide sufficient information to the customers.\n41.\nIt is of note that this case happened in Egypt which is not a developed and advanced country like the United Kingdom, Australia or New Zealand where HAB industry is long established and governed by stringent regulatory system. It is common sense that an activity is considered to be safe in one country does not necessarily mean that it is safely operated in another.\n42.\nAs a matter of fact, it was not the first HAB accident occurred in Luxor. It is not disputed that there was a major HAB accident happened in Luxor as a result of which 16 passengers were injured which caused temporary suspension of the activity. I consider that Hong Kong travel companies apart from designating a DMC to appoint and liaise with the local service providers should also acquire sufficient information of such activity before offering the activities that involved a certain degree of risk.\n43.\nInstead of relying on the fact that other companies are also providing the same activity, travel companies should acquire sufficient information for its own risk assessment before providing such activity. The information is also essential for training the frontline staff. More importantly, customers should be well informed of the information before taking part in such activity involving certain degree of risk. In my view, the list of basic information about the HAB ride that should be acquired by the travel company and provided to the customers includes but not limited to:\n- Height and duration of the HAB flight;\n- Pictures of HAB showing the envelope, basket and burners of the HAB;\n- Size of the HAB;\n- Brief information about material and mechanics of operation of the HAB;\n-Information about experience and reputation of the company providing the HAB ride;\n- Any HAB accidents happened before in the destination and any of such related to the service provider;\n- The licensing system in the country as compared with other worldly recognized country.\n44.\nIn fact, it is stated at paragraph 9.3 of Code of Conduct for Outbound Tour Escort issued by TIC in October 2007\n[28]\nthat: “Prior to arranging self-pay activities, tour escort shall explain clearly to tour participants the content, duration, fee, safety and responsibility of such activities.” Checklist 4.2 attached to the same Code also provides a few items for checking in respect of optional activities.\nSelecting and supervising the local destination management company and/or service provider\n45.\nFrom the evidence of LAU, Senior manager of Kuoni responsible for product designing and tour planning, Kuoni started to offer HAB ride in 2008. Kuoni stopped offering HAB immediately after this accident, but still offer Egypt tour until June 2013. He said that Kuoni relied upon the fact that other Hong Kong travel companies were also offering HAB ride before they were offering the same. He was aware that HAB ride was also provided in other countries around the world and was considered to be safe by other companies. He said that some of their colleagues also had the experience of HAB ride in other companies before they joined Kuoni.\n46.\nWhen asked if there was any risk assessment of HAB ride in Egypt done by him or Kuoni as far as he knew before the accident, LAU replied negative and said that they usually relied on the local licensing system and if the company was insured. He was informed by Paradise that Sky Cruise was licensed and insured (being one of criteria of obtaining license). Surprisingly, Kuoni has not even obtained a copy of those documents but just relied on Paradise words until the accident occurred. He was told by Paradise that Sky Cruise was an experienced operator of HAB and started to operate HAB activities in 90s. Kuoni basically relied on the choice and information given by Paradise. LAU said that they also relied on feedback from tour escorts and customers when considering the quality of service provided by local company.\n47.\nDespite the absence of any risk assessment done by LAU/Kuoni before offering HAB ride, he agreed that HAB contained certain degree of risk. He considered HAB ride as an activity having moderate degree of risk. As to what training, if any, was given to tour escort or front desk staff, he said there would only be casual sharing given by experienced colleagues to junior ones. Kuoni did not have particular safety guidelines or briefing of HAB ride provided to staff. During the tour in Egypt, AU basically was responsible for liaisoning with the local guide/assistant there called Mostafa and relied on him for all the local arrangements.\n48.\nMiss Scarlet So, the person in charge of Paradise in Hong Kong testified that she had not received any training on travel industry. She worked for Osama, founder of Paradise in Egypt, since 2005 through an introduction by a common friend. She did not have any travel or working experience in Egypt. She, although being the person in charge of Paradise in Hong Kong and having the title as Regional Manager, basically said that she was not more than a mail box transferring message between Kuoni and Osama. In relation to the choosing Sky Cruise, she said it was Osama’s choice and she had no idea why it was chosen. She said there was no discussion between Kuoni and her on HAB activities. Before the accident, she has never given any copy of Sky Cruise’s license or insurance but just told Kuoni that Sky Cruise was chosen as the HAB service provider upon Osama’s instruction.\n49.\nA Risk Solutions Manual for Travel Industry in Hong Kong was issued by TIC in February 2008\n[29]\n. Paragraph A1.1.1 of the Manual provided a Supplier selection criteria checklist. However, the checklist does not cover present situation in which the Hong Kong travel company has engaged a DMC to select and arrange with the local service providers.\n50.\nDespite the fact that Kuoni was told by Paradise that Sky Cruise was an experienced service provider with reputation, it was revealed from the Egyptian investigation that the maintenance carried out at Sky cruise did not always refer to the appropriate part numbers or serial numbers, as per the full maintenance procedures\n[30]\n; for example: absence of record of the 5\nth\ntank (for inflating the balloon) and unclear basket number\n[31]\n. Further, gas leakage appeared to be a common problem as testified by the staff of balloon companies, which did not appear to cause serious concern by the company, which seemed to be quite contrary to the stringent UK reporting system as testified by Mr. Chadwick.\n51.\nRegarding operation of the present HAB, it was also revealed that the pilot was allowed to take off, despite absence of the maintenance engineer and the operation manager and that he was not able to contact the control tower until 10 minutes after taking off\n[32]\n. When the pilot was asked by the investigation team about the dissimilarity between his pre-departure check signature and his previous signature, he claimed that he would use several signatures in order not to be imitated! Mr. Chadwick could not help expressing his concern as to why anyone would want to imitate a pre-departure check signature during normal operation.\n[33]\nAlso, no summary or translation of pilot briefing was supplied to the passengers before taking off. It was however recommended by Mr. Chadwick that the use of laminated passenger safety briefing cards should complement the pilot’s briefing to passengers. The use of diagrams and briefing cards in major world language should be provided.\n[34]\n52.\nMy pointing out the above observation made after Egyptian investigation was not because I wanted to discuss or determine the fault or liability, but to show the danger of Hong Kong travel companies simply replying on words of DMC without conducting its own risk assessment. It is equally important for Hong Kong travel companies to properly select and supervise the service providers even after a DMC has been engaged.\n53.\nGiven the highly technical nature of HAB operation and the fact that the inquest does not have the advantage of hearing direct evidence, this court is not in the best position to make any conclusion or comments on the requirement of a safe HAB maintenance or operation.\n54.\nUpon hearing this inquest, I reckon that there is at present a lacuna in TIC’s guidance on Hong Kong travel companies’ duty and responsibility on local service providers when DMC is engaged. I note that there is quite a detailed list for TIC members to select local service providers\n[35]\n, however such manual does not cover situation when travel agent companies have entrusted a local DMC.\n55.\nApart from telling me that we should trust the licensing system of each country and it is very difficult for Hong Kong travel company to monitor local service providers as well as it is a worldwide common practice to engage a DMC to do the work for travel companies, Mr. Tung of TIC basically gave me no suggestion nor assistance as to how the service of Hong Kong travel companies can be improved and safety of Hong Kong customers be better safeguarded.\n56.\nTo my surprise, both Kuoni and TIC have never conducted any evaluation of the case until the present inquest. Neither has TIC done anything to review the existing guidelines. More than three years have lapsed since the date of this tragic event. It is disappointing to learn that not only the travel company and TIC were not able to realize the risk involved in this particular activity showed by the lack of risk assessment, they were also not alerted after loss of nine precious lives. That in a way shows how insensitive the Hong Kong travel industry is to the well-being of customers. Regardless of whether this tragedy could possibly be avoided, the cursory attitude in assessing risk and reflecting after the accident as showed from the testimony given by LAU being senior management of Kuoni, given its reputation as one of the most high-end travel companies in Hong Kong, was unsatisfactory in my view. Similarly, I consider TIC’s reaction after the accident to be too slow and attitude too passive. The AAIC report was issued in December 2013 and I expect TIC should have looked into the matter thoroughly and reviewed the present guidelines on outbound activities involving risk much earlier instead of waiting for the result of this inquest.\n57.\nFurther, I consider that information or assistance currently provided by TIC to travel companies and more importantly to customers as to risks involved in various activities operated at various countries to be insufficient.\nRecommendations to Travel Industry Council (TIC)\n58.\nAnalyzed as the above, I now recommend:\n1) TIC to conduct a thorough research and collect data from the industry so as to list out popular activities operated in different countries offered by travel companies involving certain degree of risk. TIC to categorize the degree of risk in respect of different activities provided in different countries for industry as reference. Such list should be updated from time to time;\n2) TIC to set out clear guidelines for travel companies as to the necessary information of activities involving certain degree of risk to be provided to customers before taking part in such activities;\n3) TIC to set out clear and specific guidelines for travel companies that customers should be reminded that their travel insurance may not cover activities involving certain degree of risk;\n4) TIC to look into travel companies’ duty and responsibility in selecting and supervising the local service providers and review the existing guidelines when destination management companies are engaged;\n5) TIC to set out new guidelines on travel companies’ duty and responsibility to supervise destination management companies;\n6) TIC to set out safety guidance and advertise to customers as to the importance of obtaining details of travel policy insurance and information on activities involving risk before enrolment.\nRecommendations to Kuoni\n59.\nI also recommend:\n1) Kuoni to obtain sufficient information from local service providers and conduct thorough risk assessment on activities involving certain degree of risk provided to customers before offering the same;\n2) Kuoni to conduct thorough evaluation after every major accident taking place during tours provided by them so as to find out the cause of the accident and consider if there is anything that can be done to improve the quality and safety of service provided to customers.\n3) Kuoni to provide sufficient information to customers about activities involving certain risk and remind them in more specific and clear terms that activities involving risk may not be covered by their travel insurance;\n4) Kuoni to provide more training and information to front desk staff, including receptionists and tour escorts, so that they can be better equipped to explain the risk involved in activities provided by the company;\n5) Kuoni to set out clear criteria for selecting destination management companies and local service providers with first hand information and to closely monitor the service provided by destination management companies and local service providers.\n60.\nBoth TIC and Kuoni need to reply the Coroner in writing in three months’ time as to 1) whether the above recommendations are accepted and if yes 2) what steps have been taken to implement the recommendations and 3) reasons if the recommendations are not accepted.\n61.\nLastly, let me offer my deepest condolence again to the next of kin for their loss of loved ones and also thank you all for attending this inquest. I cannot even try to imagine the difficult journey you have gone through and dare not expect that by having this inquest you will be soothed in anyway. What I sincerely hope is that you will find this inquest helpful in some way having been informed of more details about the incident. I am indebted to the Hong Kong police, Mr Brook and Mr IP, SPP of Department of Justice, for their unfailing support in this investigation despite all the difficulties. I also thank counsel’s assistance from all parties. Lastly, I need to deliver my gratitude to the senior interpreters, Mr Wong and Mr Lai and the Clerk to Coroner, Miss On for their invaluable assistance throughout the hearing.\n62.\nIf parties and the press wish, a copy of this inquisition can be obtained from my clerk after the court rises. A press summary is also available for the press. The inquisition and press summary will also be uploaded to the Judiciary website very soon after today’s hearing. The inquest is hereby closed.\nJune CHEUNG\nCoroner\nRepresentation:\nMr Michael Ozorio, SC instructed by Messrs Paul C. K. Tang & Chiu for KUONI Travel (China) LTD.\nMr Bernard Murphy of Messrs Howse Williams Bowers for Ultramagic S.A.\nMr Foster Yim instructed by Messrs Wan Yeung Hau & Co. for next of kin of Ho Oi Hing, Ho Oi Ying, Ho Oi Ming, Tang Yuk Ling, Siu Chi Man & Kwan Pui Man Eleni\nMr Edward Brook and Mr Cliff Ip of Department of Justice as Coroner’s Officer\n[1]\nPp. 17-20 of the AAIC report (Exhibit C30)\n[2]\nP.12 of the prosecution report (Exhibit C32A)\n[3]\nParas.1.5.1, pp.16-20, AAIC report (Exhibit C30)\n[4]\nPp.74-84, prosecution report (Exhibit C32A)\n[5]\nP.17 of AAIC report (Exhibit C30)\n[6]\nP.5 of the investigation report (Exhibit C30)\n[7]\nP.6.8 of Maintenance Manual of Ultramagic HAB (Exhibit C50)\n[8]\nP.7 of the prosecution report (Exhibit C32A)\n[9]\nParagraph 2.6, page 140 of AAIC report (Exhibit C30)\n[10]\nParagraph 3.4.6 of Chadwick’s report (Exhibit C46a)\n[11]\npp.48-59 of Prosecution report (Exhibit C32A)\n[12]\np.66 of Prosecution report (Exhibit C32A)\n[13]\nPage 8 of Chadwick’s report (Exhibit C46a)\n[14]\nP.219 of the AAIC report (Exhibit C32a)\n[15]\nPage 217 and 218 of AAIC report and page 10, para 3.3.3 of Chadwick’s report (Exhibit C46a)\n[16]\nPara.2.12, page 2 of Chadwick’s report (Exhibit C46a)\n[17]\nParagraphs 6.1-6.8 of Chadwick’s report (Exhibit C46a)\n[18]\nParagraph 4.1.4, page 149 of AAIC report (Exhibit C30)\n[19]\nPara. 4.14, page 20 of Chadwick’s report (Exhibit C46a)\n[20]\nExhibit C1\n[21]\nExhibits C8 and C9\n[22]\nExhibit C35\n[23]\nExhibit C5\n[24]\nExhibit C5\n[25]\nExhibit C6\n[26]\nSky Cruise HAB leaflet (Exhibit C11)\n[27]\nExhibit C6\n[28]\nExhibit C34\n[29]\nExhibit C 36\n[30]\npage 140 of AAIC report, comment 13 of Chadwick report (Exhibit C46a)\n[31]\ncomments 12 of Chadwick report (Exhibit C46a)\n[32]\npp.75-86 of the prosecution report (Exhibit C32a)\n[33]\nParagraph 3.4.4, p.11 of Chadwick’s report (Exhibit C46a)\n[34]\nParagraph 5(g), pp. 22 and 23 of Chadwick’s report (Exhibit C46a)\n[35]\nParagraph A1.1.1 if Risk Solution Manual (Exhibit C36 and 36A)", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2013/CCDI000346_2013.doc", + "file_name": "CCDI000346_2013.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkcrc/2026_HKCrC_1/case.json b/en_cases_hkcrc/2026_HKCrC_1/case.json new file mode 100644 index 0000000..d8e047c --- /dev/null +++ b/en_cases_hkcrc/2026_HKCrC_1/case.json @@ -0,0 +1,178 @@ +{ + "Date": "22 Jan, 2026", + "Action No.": "CCDI1075/2012", + "Neutral Cit.": "[2026] HKCrC 1", + "case_title": "RE INQUEST INTO THE DEATHS OF 39 PERSONS ARISING OUT OF THE COLLISION BETWEEN LAMMA IV AND SEA SMOOTH ON 1 OCTOBER 2012", + "page_title": "RE INQUEST INTO THE DEATHS OF 39 PERSONS ARISING OUT OF THE COLLISION BETWEEN LAMMA IV AND SEA SMOOTH ON 1 OCTOBER 2012 | [2026] HKCrC 1 | HKLII", + "case_history": [ + { + "name": "CCDI1075/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1075" + }, + { + "name": "CCDI1076/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1076" + }, + { + "name": "CCDI1077/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1077" + }, + { + "name": "CCDI1078/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1078" + }, + { + "name": "CCDI1079/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1079" + }, + { + "name": "CCDI1080/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1080" + }, + { + "name": "CCDI1081/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1081" + }, + { + "name": "CCDI1082/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1082" + }, + { + "name": "CCDI1083/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1083" + }, + { + "name": "CCDI1084/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1084" + }, + { + "name": "CCDI1085/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1085" + }, + { + "name": "CCDI1086/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1086" + }, + { + "name": "CCDI1087/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1087" + }, + { + "name": "CCDI1088/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1088" + }, + { + "name": "CCDI1089/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1089" + }, + { + "name": "CCDI1090/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1090" + }, + { + "name": "CCDI1091/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1091" + }, + { + "name": "CCDI1092/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1092" + }, + { + "name": "CCDI1093/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1093" + }, + { + "name": "CCDI1094/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1094" + }, + { + "name": "CCDI1095/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1095" + }, + { + "name": "CCDI1096/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1096" + }, + { + "name": "CCDI1097/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1097" + }, + { + "name": "CCDI1098/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1098" + }, + { + "name": "CCDI1099/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1099" + }, + { + "name": "CCDI1100/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1100" + }, + { + "name": "CCDI1101/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1101" + }, + { + "name": "CCDI1102/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1102" + }, + { + "name": "CCDI1103/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1103" + }, + { + "name": "CCDI1104/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1104" + }, + { + "name": "CCDI1105/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1105" + }, + { + "name": "CCDI1106/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1106" + }, + { + "name": "CCDI1107/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1107" + }, + { + "name": "CCDI1108/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1108" + }, + { + "name": "CCDI1109/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1109" + }, + { + "name": "CCDI1110/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1110" + }, + { + "name": "CCDI1111/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1111" + }, + { + "name": "CCDI1112/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1112" + }, + { + "name": "CCDI1113/2012", + "link": "https://www.hklii.hk/en/appealhistory/CCDI/2012/1113" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkcrc/2026/1", + "neutral_cit": "[2026] HKCrC 1", + "court_code": "HKCRC", + "content": "CCDI1075B/2012 RE INQUEST INTO THE DEATHS OF 39 PERSONS ARISING OUT OF THE COLLISION BETWEEN LAMMA IV AND SEA SMOOTH ON 1 OCTOBER 2012\nPress Summary (English)\nPress Summary (Chinese)\nCCDI 1075-1113/2012\n[2026] HKCrC 1\nIN THE CORONER’S COURT OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCASE NO. 1075 to 1113 OF 2012\n______________\nINQUEST INTO THE DEATHS OF 39 PERSONS ARISING OUT OF THE COLLISION BETWEEN\nLAMMA IV\nAND\nSEA SMOOTH\nON 1 OCTOBER 2012\n________________\nBefore:\nMonica Chow, Coroner\nDates of Hearing:\n6-9, 12-16, 19-23, 26-30 May, 2-6, 9-13, 16-20, 23 June, 2, 10, 11, 15, 17, 22-24 July, 18 September 2025\nDates of delivery of Verdict:\n21-22 January 2026\nVERDICT\nA. Introduction\n1.\nThis Inquest is held pursuant to the Order of the Court of Appeal dated 26 July 2023, following an appeal brought by the next of kin of two of the deceased, which arose from the maritime collision between the passenger vessels Lamma IV and Sea Smooth on the evening of 1 October 2012 off Lamma Island.\n[1]\nB. Background\n2.\nOn 1 October 2012, The Hongkong Electric Company Limited (“Hongkong Electric”) organised an outing for its employees, their families and friends. The itinerary included a visit to Hongkong Electric’s Power Station on Lamma Island, followed by dinner. The final part of the programme was a trip to Victoria Harbour to view the National Day fireworks display, during which the participants boarded two company-operated vessels, Lamma II and Lamma IV.\n3.\nAt approximately 8:20pm, shortly after\nLamma IV\ndeparted from the Power Station pier en route to Victoria Harbour, it collided with Sea Smooth, a high-speed passenger ferry owned by Islands Ferry Company Limited, a wholly owned subsidiary of Hong Kong & Kowloon Ferry Holdings Limited (“HKKF”).\nSea Smooth\nwas on its schedule voyage from Central to Yung Shue Wan, Lamma Island. The collision occurred in the waters off Shek Kok Tsui light beacon, northwest of Lamma Island, when the port side bow of Sea Smooth struck the port aft quarter of\nLamma IV\n. As a result of the impact, Sea Smooth sustained damage to its port hull. It remained afloat and continued its journey to Yung Shue Wan Ferry Pier.\n4.\nThe collision caused a substantial breach to the aft port side of\nLamma IV\n’s hull at the stern, specifically the Engine Room and the Tank Room. As a result, both compartments flooded rapidly. Due to an opening in the bulkhead between the Tank Room and the Steering Gear Compartment, water also entered and flooded the latter.\n5.\nThe uncontrolled ingress of seawater caused the vessel to list heavily to port and settle by the stern. Within 118 seconds of impact,\nLamma IV\nassumed an almost vertical position, with its stern resting on the seabed and its bow protruding above the waterline. Many passengers were thrown overboard; others, trapped within the aft compartments, were unable to escape before the vessel submerged. As a result of the collision and ensuing flooding, 39 passengers on board\nLamma IV\n, including eight children, lost their lives, 97 others were injured.\n6.\nA Commission of Inquiry (“COI”) was appointed on 22 October 2012 by the Chief Executive-in-Council to investigate the facts and circumstances leading to and surrounding the collision between\nLamma IV\nand\nSea Smooth\n, to ascertain the causes of the incident and to make appropriate findings. The COI was further tasked with evaluating the adequacy of maritime safety arrangements and the regulatory system governing passenger vessels in Hong Kong, and to make recommendations to prevent the recurrence of similar incidents. On 19 April 2013, the COI submitted to the Chief Executive a detailed report running to 186 pages and over 100 pages of annexes, with 13 recommendations (“COI Report”).\n7.\nIn its findings relating to the rapid sinking of Lamma IV, the COI concluded that a principal cause was the absence of a watertight door at the bulkhead separating the Steering Gear Compartment from the Tank Room. It found that water entering through the breach in the port side hull was able to flood successively the Steering Gear Compartment, the Tank Room and the Engine Room because the opening in the Steering Gear Compartment bulkhead was not fitted with a watertight closure.\n8.\nFollowing the COI Report, criminal proceedings were brought against the coxswains of both vessels and two Marine Department officers.\n[2]\nThe Transport and Housing Bureau also conducted an internal investigation into the practices of the Marine Department.\n9.\nIn view of the findings of the COI and the subsequent criminal proceedings, the then Coroner declined to hold an inquest on the basis that the circumstances of the deaths had already been sufficiently examined, and that the recommendations made by the COI adequately addressed the matters of public safety arising from the incident.\n10.\nFollowing that decision, the next of kin of ten of the deceased wrote to the then Secretary for Justice seeking to invoke\nsection 16\nof the\nCoroners Ordinance\n[3]\n(“the Ordinance”) for an order that an inquest be held. Their application was declined.\n11.\nThe next of kin of four of the deceased then applied to the High Court under section 20(1)(a) of the Ordinance for an order that a death inquest be held. By a judgment handed down on 24 November 2022, Coleman J refused the application on the basis that he was not satisfied that the public interest required an inquest to be held.\n[4]\n12.\nUpon appeal, the Court of Appeal allowed the application and directed that an inquest be held. The Court held that it was in the public interest to do so in order to promote transparency, enhance public confidence in the regulation of maritime safety, and address matters that had not been fully examined in either the COI or the criminal proceedings. Six issues were identified by the Court of Appeal for determination at this Inquest, namely:\n(1) whether from the outset Cheoy Lee knew that the Bulkhead was to be built watertight (“Issue 1”);\n(2) whether Mr. Cheung who was responsible for making the Damage Stability Calculations shifted the blame for the mistakes to Mr. Leizaola (“Issue 2”);\n(3) whether the Port Hull Bow Plating was attached to the Sea Smooth at the time of the collision (“Issue 3”);\n(4) whether the coaming of the Lamma IV was lower than required (“Issue 4”);\n(5) whether the Bulkhead was inspected annually or bi-annually (“Issue 5”); and\n(6) the long working hours of seafarers in the passenger ferry industry (“Issue 6”).\nC. The Inquest\n13.\nThe purpose of a death inquest is prescribed by\nsection 27\nof the Ordinance namely, to inquire into the cause of death and the circumstances connected with the death. For that purpose, the proceedings and evidence are directed to ascertaining the identity of the deceased; determining when, where and by what means they came by their deaths; recording such particulars as are required under the\nBirths and Deaths Registration Ordinance\n[5]\n(“Registration Ordinance”); and returning a conclusion as to the death. It is not the function of an inquest to apportion blame or to determine civil or criminal liability.\n14.\nPursuant to section 44(2) of the Ordinance, the Court is also empowered, where appropriate, to make recommendations aimed at preventing the recurrence of similar fatalities.\n15.\nHowever, this Inquest was not conducted in the ordinary way. Its scope and focus were directed by the six issues identified by the Court of Appeal, which defined the parameters of this Inquest.\n16.\nA total of 84 witnesses gave viva voce evidence at the Inquest and 364 exhibits were produced. Several key witnesses were unable to attend owing to age or infirmity, and others could not be traced despite reasonable efforts. Those who did give evidence were required to recall events that had taken place many years ago, in some instances nearly three decades earlier. Inevitably, this resulted in faded memories, gaps in recollection, and at times inconsistencies.\n17.\nThe expert witnesses before the COI whose reports and evidence are relevant to the issues in this Inquest include Dr Neville Anthony Armstrong (“Dr Armstrong”), Dr Peter Cheng Jui Shan, M.B.E. (“Dr Peter Cheng”), and Dr Cheng Yuk Ki. Dr Armstrong and Dr Cheng Yuk Ki both gave evidence and submitted reports at the COI. Dr Peter Cheng did not given evidence, but his reports\n[6]\nwere provided to the COI at the request of the Marine Department. The transcript of Dr Armstrong’s evidence given over eight days at the COI was admitted in this Inquest.\n[7]\nOther experts who appeared before the COI dealt with matters outside the scope of this Inquest.\n18.\nExpert witnesses who gave evidence at the Inquest included Dr Cheng Yuk Ki, who had also given expert evidence at the COI; Dr Martin Renilson (“Dr Renilson”), instructed on behalf of the Next of Kin; Mr Simon Burthem and Captain Jeremy Ayling (“Captain Ayling”), instructed by the Marine Department; and Mr Robert Vart, Mr Anthony York, and Captain Dominic Bell (“Captain Bell”), all instructed by the Hong Kong Marine Police.\n19.\nOf these experts, Dr Armstrong, Dr Peter Cheng, Dr Renilson and Mr Simon Burthem are naval architects; Mr Vart is a marine engineer; Captain Bell and Captain Ayling are master mariners; and Dr Cheng Yuk Ki is a forensic scientist. Mr William Boyd, also a naval architect, was instructed by the Marine Department and prepared a report addressing Issue 3 (the port hull bow plating of Sea Smooth) and Issue 4 (the coaming height of Lamma IV).\n[8]\nAlthough Mr Boyd did not attend this Inquest, the contents of his report were adopted and produced by Mr Burthem.\n20.\nThe parties’ written submissions on the six issues identified by the Court of Appeal are extensive and detailed. I will not summarise every point put forward but will, under separate headings for each Issue, set out those submissions relevant to my analysis and determination. Submissions not specifically summarised will be considered as and when appropriate in the course of analysing the relevant evidence, to the extent that they are relevant to the issues to be determined.\n21.\nAll findings are made on the civil standard of proof, namely the balance of probabilities.\nC1. Form 12\n22.\nThe next of kin of seven of the deceased, including the appellants in the proceedings before the Court of Appeal (“Next of Kin”), participated in the Inquest. In accordance with the Coroner’s duty to inquire into all deaths arising from the same incident, and to ensure consistency and completeness, this Inquest was conducted in respect of all 39 deceased. Separate findings for each of the deceased are entered in Form 12 pursuant to the Ordinance.\n23.\nForm 12 is the prescribed form under section 43 of the Ordinance by which a Coroner records the findings made at the conclusion of an inquest. It sets out the particulars required to be registered concerning the death. Pursuant to the Registration Ordinance, the Coroner is required, after the conclusion of the inquest, to forward Form 12 to the Registrar of Births and Deaths together with the time and place at which the inquest was held for the purpose of registering the death.\nC2. Personal Particulars of the Deceased\n24.\nFor reasons of privacy, the personal particulars of the deceased recorded in Form 12 are not reproduced in this written Verdict. These particulars will be read into the record. The names and sexes of the 39 deceased, excluding personal particulars such as date of birth, place of birth, occupation and address, are set out in “Annex A” which forms part of this Verdict but will not be read out. I will now read the personal particulars of each deceased.\nC3. Date and Cause of Death\n25.\nAutopsy examinations were carried out in respect of each of the deceased. The autopsy reports and toxicology reports of all 39 deceased were admitted into evidence during the Inquest by consent.\n[9]\n26.\nAlthough several of the deceased were certified dead when their bodies were recovered on 2 October 2012, I am satisfied on the evidence that their deaths occurred on 1 October 2012 at the time of the collision and the subsequent sinking of\nLamma IV\n.\n27.\nOf the 39 deceased, 38 lost their lives on 1 October 2012 in the sea off Shek Kok Tsui, Yung Shue Wan, Lamma Island. This includes Wong Lai Chun\n[10]\nand Lai Chui Yuk\n[11]\nwhose deaths were certified at Queen Mary Hospital; Li Wing Mui\n[12]\n, at Ruttonjee and Tang Shiu Kin Hospitals and Yan Tsz Ki\n[13]\n, at Queen Elizabeth Hospital. I am satisfied that these four individuals had already died at sea, as they presented with no spontaneous breathing or cardiac activity upon rescue and did not respond to resuscitation. The remaining person, Tsui Hoi Ying,\n[14]\ndied on 5 October 2012 at Pamela Youde Nethersole Eastern Hospital.\n28.\nAs to the medical cause of death, 36 of the deceased died from drowning.\n[15]\nOf the remaining three: Au Hiu Lam died from traumatic asphyxia and drowning;\n[16]\nHui Ka Wai Edwin died from multiple injuries;\n[17]\nand Tsui Hoi Ying died from drowning and multiple injuries, including subluxation of cervical vertebra.\n[18]\nC4. Time, Place and Circumstances in which Injury\nwas Sustained\n29.\nAt about 8:20pm on 1 October 2012, the high-speed ferry Sea Smooth collided with the passenger ferry Lamma IV in the sea off Shek Kok Tsui, Yung Shue Wan, Lamma Island. Lamma IV sank within 118 seconds of the collision. The deceased was on board\nLamma IV\nat the time of the collision and sinking.\nC5. Conclusion as to the Death\n30.\nThe undisputed evidence, together with the findings in the criminal proceedings, established that the collision was caused by the negligent navigation of the coxswains of the two vessels. The coxswain of\nSea Smooth\nbore the greater culpability, having been convicted of 39 counts of manslaughter in addition to an offence of endangering the safety of others at sea, while the coxswain of\nLamma IV\nwas convicted of endangering the lives of others at sea.\n[19]\nThese failings were not mere errors of judgment but constituted a gross departure from the standard of care that was reasonably expected and imposed by law, thereby rendering their conduct criminally culpable.\n31.\nWhere death results from conduct amounting to manslaughter by gross negligence, the proper conclusion is unlawful killing. In reaching this conclusion, the civil standard of proof namely, the balance of probabilities, has been applied in accordance with\nR (Maughan) v HM Senior Coroner for Oxfordshire\n,\n[20]\nin which the majority held that all short form conclusions in an inquest, including unlawful killing, are to be determined by the civil standard. This marks a departure from the previous position where unlawful killing required proof to the criminal standard. The rationale in\nMaughan\nis compelling in that the inquest is a fact-finding inquiry, not a criminal trial, and the civil standard should apply to all conclusions, including unlawful killing.\n32.\nIn the present case, the criminal convictions of the two coxswains, particularly of\nSea Smooth,\nprovide evidence that not only satisfies the civil standard but would satisfy the higher criminal standard previously applied. The balance of probabilities test is therefore amply met. I find each of the 39 deceased was killed unlawfully.\nD. Construction, Hull Compartmentation and Regulatory Requirements\n33.\nBefore turning to the issues identified by the Court of Appeal, it is necessary to first set out the construction history of\nLamma IV\n, the internal arrangement of its hull compartments and the safety standards applicable to it at the material time.\nD1. Tender Process\n34.\nOn 13 July 1994, Hongkong Electric invited Cheoy Lee Shipyards Ltd (“Cheoy Lee”) and other shipbuilders to tender for the construction of a passenger launch to ferry its employees to and from Lamma Power Station. The Tender Documents comprised the Form of Tender, the General Conditions of Contract and Hongkong Electric’s Specifications for the vessel. Under the General Conditions of Contract, Cheoy Lee was required to submit drawings for approval, and Hongkong Electric was to signify its approval or otherwise within a reasonable time. Hongkong Electric’s Specifications required the launch to comply with all Marine Department requirements in force at the time of delivery and to be suitable for its intended operational use, including achieving a minimum service speed of 21 knots.\n35.\nHongkong Electric’s Specifications did not stipulate any requirement as to the number, design, subdivision, or watertight integrity of bulkheads. Instead, they provided that aspects of the vessel’s design and construction not expressly enumerated were to be of a standard at least comparable to existing Hongkong Electric ferries. The Specifications further required that construction was not to commence until the relevant plans for each part had been submitted to, and approved by, Hongkong Electric.\n36.\nOn 12 August 1994, Cheoy Lee submitted its tender to Hongkong Electric. Cheoy Lee’s tender documents comprised an Addendum to the Form of Tender (“Addendum”), a General Arrangement drawing (“Tender GA”) and a tender specification (“Tender Specification”).\nD1.1 Addendum\n37.\nThe Addendum specified the contract price and required completion of the vessel within sixty-two calendar weeks from the date of signing and receipt by Cheoy Lee of instructions to proceed. The construction timetable was expressly conditional upon drawings submitted for approval being returned by Hongkong Electric within a reasonable time. The Addendum further stipulated that the vessel was to be built closely in accordance with the Tender Specification and Tender GA.\nD1.2 Tender GA\n38.\nThe Tender GA was prepared by Cheoy Lee and appears to be dated 8 August 1994. The precise date is immaterial as it is not in dispute that the drawing was produced prior to the submission of the tender on 12 August 1994. The drawing comprised four plans: the Lower Deck plan, the Main Deck plan, the Profile view and the Upper Deck plan. The Lower Deck plan showed the watertight subdivision of the hull by transverse bulkheads. Starting from the stern, the compartments were: the Steering Gear Compartment, the Tank Room, the Engine Room, the Crew Space, the Void Space and the Fore Peak. Each was delineated by a solid vertical line, indicating a bulkhead dividing the hull into watertight sections.\n39.\nMr Ken Lo Ngok Yang (“Ken Lo”), a director of Cheoy Lee, explained that at the tender stage Cheoy Lee had identified the vessel Eastern District No. 1 as the blueprint for the vessel that would become Lamma IV. In other words, it was the reference vessel on which the proposed design for\nLamma IV\nwas modelled.\n40.\nThe copyright in Eastern District No. 1 was held by Naval-Consult Pte Ltd (“Naval-Consult”), a Singapore-based firm of naval architects. Ken Lo stated that his primary role was in the sales of commercial vessels and that technical design matters were ordinarily the responsibility of the shipyard’s Engineering Manager, Mr Cheung Chuen Yau. However, between 1994 and 1997, Mr Cheung had left Cheoy Lee, and during this period the shipyard’s business in Singapore was expanding. As he was spending considerable time in Singapore and Naval-Consult was based there, Ken Lo naturally assumed responsibility for liaising with Naval-Consult on the design of Lamma IV.\n41.\nTo determine costs prior to submitting its tender, Ken Lo approached Naval-Consult on behalf of Cheoy Lee to obtain a quotation. The quotation covered both the right to use the General Arrangement drawing of Eastern District No. 1 as the blueprint for Lamma IV, and Naval-Consult’s professional fees for adapting that design to meet Hongkong Electric’s operational specifications and the applicable regulatory requirements in Hong Kong.\n42.\nKen Lo’s evidence, both at the COI and at the Inquest, was that the Tender GA was based on the design of Eastern District No. 1, which comprised six compartments separated by five watertight bulkheads. Cheoy Lee adopted the layout of Eastern District No. 1 as the template for the Tender GA. The Tender GA therefore reflected the same watertight subdivision arrangement as Eastern District No. 1. All experts at the Inquest accepted that\nEastern District No. 1\nwas the basis ship on which the design of\nLamma IV\nwas based.\nD1.3 Tender Specification\n43.\nThe Tender Specification required that all critical working drawings, including those relating to vessel stability and floodable length calculations, be submitted to the Marine Department for approval where necessary. It further required that any deviation from the drawings or specifications, and any resulting variation in cost, be mutually agreed before the relevant work commenced.\n44.\nUnder Clause 17 of the Tender Specification, the hull shell, bulkheads, main deck plating and extrusions for frames and beams were to be constructed of marine-quality aluminium. The hull and superstructure were to be welded and built in conformity with the Marine Department’s requirements for vessels operating in Class III waters.\n[21]\nThe hull was required to be robustly built and of hard-chine hull form with transom stern. To be subdivided by five watertight bulkheads into six compartments comprising forepeak/chain locker, void space, crew accommodation, engine room, storeroom and aft peak/steering flat.\n[22]\n45.\nKen Lo explained that the reference in the Tender Specification to the hull being divided into six compartments by five watertight bulkheads corresponded with the Tender GA, which showed five such bulkheads.\n46.\nOn 10 November 1994, Cheoy Lee was awarded the contract by Hongkong Electric to construct a passenger launch. On 8 December 1994, Cheoy Lee entered into an agreement with Naval-Consult for the design of a 28-metre fast passenger launch, being the vessel ultimately built and commissioned as\nLamma IV\n. The vessel was to be constructed in accordance with the Specification annexed to the agreement and General Arrangement Drawing No. NC-391-1 Rev-A (“Revised GA”). Under the agreement, Naval-Consult was required to prepare a complete design and engineering package, including drawings, specifications, calculations and detailed construction documentation, such as the Inclining Experiment Report and the Intact and Damaged Stability Report Booklet. Naval-Consult was also required to submit the specified drawings to Cheoy Lee for onward submission to the Marine Department to obtain stamped copies for regulatory approval and for use in the construction of the vessel.\n47.\nHaving been awarded the tender by Hongkong Electric, Cheoy Lee notified the Marine Department on 24 November 1994 of its plan to construct\nLamma IV\nand submitted the Revised GA.\n48.\nBy letter dated 3 January 1995, the Marine Department informed Cheoy Lee that it had no objection to the construction of the proposed passenger launch and confirmed that the vessel would be surveyed as a passenger launch under the\nMerchant Shipping (Launches and Ferry Vessels) Regulations\n[23]\n(“\nCap 313E\n”). The Marine Department further requested that Cheoy Lee submit drawings, including the Profile Plan, Deck Plans, Bulkhead Plans and the Sections and Bulkheads Plan, together with the vessel’s stability information, prior to the commencement of construction.\nD2. Drawings of Lamma IV\n49.\nThe drawings relevant to the design and construction of\nLamma IV\nconsisted of the Revised GA and a series of structural drawings, including the Profile and Deck, the Sections and Bulkheads and the Shell Expansion.\n50.\nThe Profile and Deck and the Shell Expansion drawings showed the subdivision of the hull of\nLamma IV\ninto compartments by reference to frames and bulkheads. The bulkhead between the Steering Gear Compartment and the Tank Room was located at Frame ½, positioned midway between Frames 0 and 1 (“the Frame ½ Bulkhead”\n[24]\n). The Steering Gear Compartment and the Tank Room were the two aftmost compartments on the vessel. The Steering Gear Compartment was situated at the extreme rear, immediately adjacent to the transom with the Tank Room directly forward of it. The Tank Room was bounded by the Frame ½ Bulkhead aft and by the bulkhead at Frame 4 forward (“the Frame 4 Bulkhead”), which separated it from the Engine Room.\nD3. Construction\n51.\nThe construction of the hull of\nLamma IV\nwas subcontracted by Cheoy Lee to Wuzhou Shipyard in Guangxi, China (“Wuzhou”). Vanzon (Sino-Hong Kong) Co, Ltd (“Vanzon”) acted as Cheoy Lee’s agent and intermediary in its dealings with Wuzhou. Mr Fung Kai Ming of Cheoy Lee was the Engineering Manager responsible for overseeing the construction of the hull at Wuzhou. Upon completion of the hull, the China Classification Society, pursuant to an arrangement with the Marine Department, conducted the hull survey in China. The hull was then returned to Cheoy Lee to enable the remaining construction works to be carried out, including the fitting out of compartments, installation of equipment and the creation of an Access Opening in the Frame ½ Bulkhead.\nD4. Safety and Survey Requirements\n52.\nAt the time when Lamma IV was designed and built, there were no legislations regulating its construction. The requirements applicable to its construction were those contained in the Instructions for the Survey of Launches and Ferry Vessels (1989), commonly referred to as the “Blue Book”. The Blue Book was issued by the Director of Marine for the guidance of surveyors, builders and owners, and compliance with its requirements was necessary if a vessel was to obtain certification. The Blue Book therefore set out the regulatory requirements for the construction of Lamma IV.\n53.\nParagraph 12(iv) of the Blue Book required peak bulkheads at both ends of all double-ended launches and all launches over 70 feet long.\n[25]\nParagraph 12(v) required that any opening in a watertight bulkhead be fitted with an efficient closing appliance.\n54.\nThe Blue Book also incorporated the safety standards set out in the\nMerchant Shipping (Safety) (Passenger Ship Construction and Survey) (Ships Built on or After 1 September 1984) Regulations\n[26]\n(“\nCap. 369AM\n”). Paragraph 15 of the Blue Book stipulated that all new launches designed to carry more than 100 passengers were required to comply with the watertight subdivision requirements. The instruction referred to\nRegulation 5\nof\nCap. 369AM\nas the applicable provision. It is accepted that this was a drafting error and that the correct provision governing watertight subdivision was Regulation 6 of.\n55.\nRegulation 6\nof\nCap 369AM\nentitled “Watertight Subdivision”, required passenger ships built on or after 1 September 1984 to be subdivided by transverse watertight bulkheads. The detailed rules for the calculation of the length of watertight compartments were set out in Schedule 1 “Calculation of Maximum Length of Watertight Compartments”, under paragraph 6(6) of Schedule 1, if two adjacent main transverse bulkheads are spaced closer than the minimum permitted distance, defined as 3.00 metres, 11.00 metres, or 0.1L (whichever is the least), then only one of them is treated as part of the ship’s watertight subdivision. For\nLamma IV\n, the relevant limit was 0.1L, this was referred to as the 0.1L Rule during the Inquest, with “L” denoting the length of the ship.\n[27]\n56.\nIn his report,\n[28]\nDr Armstrong explained that the stability requirements applicable to\nLamma IV\nwere set out in Schedules 1 and 3 of\nCap 369AM\n. Whilst both Schedules refer to the margin line, they do so for different purposes, and compliance with one did not remove the need to comply with the other.\n57.\nAlthough the Blue Book did not expressly refer to\nSchedule 3\nof\nCap 369AM\n, Dr Armstrong explained in his report\n[29]\nand in his evidence before the COI\n[30]\nthat the damage stability standard applicable to vessels such as\nLamma IV\nwas derived from\nSchedule 3\n(“Stability in Damaged Condition”) of\nCap 369AM\n. Paragraph 1(3)(a) of Schedule 3 originally defined the assumed longitudinal extent of damage by reference to a formula, but the Marine Department removed that formula and replaced it with the requirement of “one-compartment flooding”.\n[31]\nUnder that standard, a vessel like\nLamma IV\nwas required to remain afloat, with its margin line\n[32]\nabove the water, following the complete flooding of any single watertight compartment. By contrast, a two-compartment flooding standard would require survivability following the simultaneous flooding of two adjacent watertight compartments;\nEastern District No. 1\n, as an ocean-going vessel, was designed to that higher standard.\n58.\nSchedule 3 also imposed transverse stability requirements in the damaged condition. In particular, it required that, following the assumed damage, the vessel maintain a minimum metacentric height of 0.05 metres and that the margin line not be immersed as a result of heel. The metacentric height requirement was intended to ensure that the vessel retained sufficient transverse stability when damaged so as to avoid capsizing.\n[33]\n59.\nThe Blue Book remained in force until 19 January 1996, when it was replaced by the Instructions for the Survey of Launches and Ferry Vessels (1995) (“1995 Instructions”). There was no substantive difference between the two sets of Instructions so far as the construction and survey requirements for\nLamma IV\nwere concerned. As\nLamma IV\nhad already been built by the time the 1995 Instructions came into effect, they were not relevant to its construction but only to its subsequent survey and certification by the Marine Department. The 1995 Instructions were superseded on 29 December 2006 by the Code of Practice – Safety Standards for Class I, II and III Vessels (“2006 Code of Practice”).\nE. Cheoy Lee’s Knowledge of the Frame ½ Bulkhead Being Watertight (Issue 1)\n60.\nThe question whether Cheoy Lee knew at the outset that the bulkhead at Frame ½ was to be built watertight is ultimately one of design intent, whether the omission of the watertight door reflected a deliberate design choice or an inadvertent departure from the contractual specifications and approved drawings.\n61.\nThe matters bearing on this issue include the contractual specifications, the design drawings, the stability calculations, the Wuzhou fax and Vanzon’s reply, as well as the evidence of those involved in the design process, and the opinions of the expert witnesses.\n62.\nThese matters will be examined under three broad categories: (i) direct evidence from those involved in the design process; (ii) documentary evidence; and (iii) expert opinions.\nE1. Direct Evidence of Design Intent\n63.\nOf those directly involved in the design process, only Ken Lo gave evidence at the Inquest. Mr John Lim, director of Naval-Consult (“John Lim”), with whom Ken Lo said he had discussed the watertightness of the Frame ½ Bulkhead, did not attend the Inquest.\n64.\nAlthough not involved in the design decisions, Mr Tan Kian Choon (“KC Tan”)\n,\nthe draughtsman responsible for preparing the Sections and Bulkheads and Profile and Deck drawings, may shed some light on the instructions he received from John Lim, which in turn reflect the discussions between John Lim and Ken Lo concerning the watertightness of the Frame ½ Bulkhead.\nE1.1 Evidence of Ken Lo\n65.\nAt the COI, Ken Lo explained that, despite the “W.T. BHD.”\n[34]\nmarkings appearing on some drawings, the Frame ½ Bulkhead was always intended to be fitted with an opening rather than a watertight door. He said this was because the aft peak compartment\n[35]\nmeasured less than 0.1L and therefore fell outside the statutory requirement for subdivision by a watertight bulkhead, and because the vessel was required to comply only with the one-compartment flooding standard. He maintained that this design decision was made deliberately during discussions with John Lim and was subsequently approved by the Marine Department.\n66.\nKen Lo also explained that the Frame 4 Bulkhead, being the aft boundary of the Engine Room, satisfied the requirement for an aft peak bulkhead under paragraph12(iv) of the Blue Book\n.\nSince the Frame ½ Bulkhead was not watertight, paragraph 12(v) which governed efficient closing appliance in watertight bulkheads, did not apply.\n67.\nKen Lo attributed the presence of watertight markings in some drawings to a drafting carry-over from the Eastern District No. 1 drawings. He pointed out that neither Hongkong Electric nor the Marine Department raised any query about the missing watertight door until after the collision.\n68.\nAs to the Tender Specification which required five watertight bulkheads, Ken Lo said those provisions were preliminary and could be modified during detailed design, provided the completed vessel complied with regulatory requirements. He asserted that, had his advice been sought at the time, he would have recommended omitting the watertight door at the Frame ½ Bulkhead as it was unnecessary under the prevailing standards for passenger ferries in Hong Kong.\n69.\nKen Lo further described the long and established relationship between Cheoy Lee and Hongkong Electric.\nLamma IV\nwas the eighth vessel built by Cheoy Lee for Hongkong Electric, at the time of the collision two further vessels were under construction. Over the years, it had become established practice for Cheoy Lee to submit design drawings to Hongkong Electric as a matter of routine, without receiving any feedback from the latter. Hongkong Electric consistently left Cheoy Lee to design and construct the vessels as it saw fit, subject only to approval by the Marine Department.\n70.\nIn accordance with that established practice, the drawings for\nLamma IV\nwere sent to Hongkong Electric in July 1995, and no response was received. This was regarded by Cheoy Lee as consistent with the long-standing pattern of non-interference between the two companies. Although the Specifications of Hongkong Electric stipulated that work was not to commence until plans for each part had been approved, Ken Lo said this requirement was never implemented in practice. Drawings were routinely submitted, no comments were made and such silence was treated as tacit approval, a practice which have been followed since the 1980s when Cheoy Lee first began constructing launches for Hongkong Electric.\n71.\nDuring the Inquest, Ken Lo elaborated on how the design decision had been reached. Although unable to recall the precise sequence of the discussions he had with John Lim, he believed they occurred intermittently in Singapore, both during tendering and after award of the construction contract. The design decision for the Frame ½ Bulkhead was twofold: (i)\nLamma IV\nonly needed to meet a one-compartment flooding standard, whereas Eastern District No. 1 was designed for two-compartment flooding; and (ii) under the 0.1L Rule, the Frame ½ Bulkhead could not qualify as an effective watertight subdivision or an aft peak bulkhead.\n72.\nKen Lo consistently maintained that the Revised GA prepared by John Lim in October 1994 reflected their discussions during the tender stage concerning the application of the one-compartment flooding standard in Hong Kong. He explained that the drawing provided a visual benchmark that the combined volume of the Steering Gear Compartment and the Tank Room was clearly smaller than that of the Engine Room, and if the Engine Room could satisfy the one-compartment flooding standard, then, on the same reasoning, the combined aft space would also meet that requirement. Although he did not expressly say so, the proper inference is that he was referring to the drawings of Eastern District No. 1 as the visual benchmark. Ken Lo was adamant that John Lim would not have altered the watertight door of\nEastern District No. 1\nto an Access Opening in the Revised GA had it not been for their discussions.\n73.\nKen Lo accepted that he only started to consider the Hong Kong regulatory requirements, including the 0.1L Rule, after Cheoy Lee was awarded the tender in November 1994. He said he discussed the 0.1L Rule with John Lim in around December 1994 and they agreed paragraph 6(6) of\nSchedule 1\n,\nCap. 369AM\nas requiring a watertight aft peak bulkhead to extend for at least 10 per cent of the vessel’s length. On that basis, they considered the Frame ½ Bulkhead, being located within 0.1L of the stern, incapable of serving as an aft peak bulkhead for regulatory purposes. He and John Lim therefore decided to omit the watertight door from the Frame ½ Bulkhead, leaving that bulkhead non-watertight so that the Frame 4 Bulkhead could serve as the aft peak bulkhead.\n74.\nAlthough the aft peak bulkhead was located at Frame 4 and not at the Frame ½ Bulkhead, Ken Lo said that the latter remained necessary as it provided structural support. Its removal would have required a recalculation of the hull strength. When it was put to him that a lighter web frame could have been used instead, he maintained that Cheoy Lee did not interfere with Naval-Consult’s structural design decisions, which were left entirely to the naval architect. The only deliberate design change in which he was personally involved, he said, was the decision to remove the watertight door at the Frame ½ Bulkhead from the\nEastern District No. 1\ndesign for application to\nLamma IV\n.\n75.\nAs to the Wuzhou fax, Ken Lo explained that it reflected Wuzhou’s mistaken assumption that a watertight door would be fitted in Hong Kong. In his view, Cheoy Lee was not bound by that assumption. He said that because the drawings were inconsistent, with some depicting the Frame ½ Bulkhead as watertight, Wuzhou had wrongly inferred that a watertight door would be installed. In any event, Wuzhou required a temporary opening for welding access within the Steering Gear Compartment and the decision whether to install a door was a matter for Cheoy Lee to determine during outfitting in Hong Kong.\n76.\nKen Lo acknowledged that the survey carried out by the China Classification Society was conducted on the assumption that the bulkhead at Frame ½ was watertight and that Wuzhou sealed the manhole accordingly. He described the China Classification Society certificate as a quality assurance document for Wuzhou’s workmanship, not a certification required for completion of outfitting in Hong Kong.\n77.\nWhen asked why Cheoy Lee did not correct Wuzhou’s or Vanzon’s references to a watertight door at the Frame ½ Bulkhead, Ken Lo said that no correction was necessary because the final decision on whether to fit such a door rested with Cheoy Lee in Hong Kong. He accepted that he was copied in the correspondence but explained that he was often overseas at the time and believed he only became aware of its contents after the relevant actions had already been taken. He said the Wuzhou contract did not include the supply or installation of a watertight door. His earlier evidence at the COI was that, if a watertight door had been required, Cheoy Lee would have instructed Wuzhou to install it and to prepare the plating accordingly.\n[36]\nAfter the hull was returned to Hong Kong, Cheoy Lee opened the Access Opening at the Frame ½ Bulkhead.\n78.\nKen Lo explained that the finish of the Access Opening at the Frame ½ Bulkhead was consistent with an ordinary opening rather than one intended for a watertight door. The opening was completed with flat bars suitable for a hole, not for fitting a door. Ken Lo noted that the congregated area was already so close to the end, leaving no clearance for attaching a door. He further pointed out that the absence of reinforcing, flanges, hinges, or other preparatory work confirmed that no watertight door had ever been intended. To fit such a door, the adjoining plating must be prepared to provide sufficient flat surface for bolting, but in this case, the plating terminated too close to the stiffened areas, leaving no space for installation. The structure, as completed, thus indicated that no watertight door was ever intended.\n[37]\n79.\nIn summary, Ken Lo’s evidence was that the omission of the watertight door at the Frame ½ Bulkhead was a deliberate design decision, reached after discussions with John Lim and made to comply with the applicable regulatory requirements, namely the one-compartment flooding standard and the 0.1L Rule. He maintained that the Frame ½ Bulkhead was never intended to be watertight, that any contrary markings on the drawings were drafting mistakes carried over from Eastern District No. 1, and that both the construction details and the absence of preparatory work confirmed this intent. Throughout his evidence, Ken Lo’s position was that the design satisfied the one-compartment flooding standard, as evidenced by the Preliminary Trim and Stability Booklet and that the watertight door at the Frame ½ Bulkhead had been intentionally omitted in order to comply with the 0.1L Rule, this omission also being consistent with the one-compartment flooding standard.\nE1.2 Evidence of John Lim\n80.\nJohn Lim, who retired from Naval-Consult in 2014, did not give evidence at this Inquest. His evidence before this Court comprises his emails in January 2013; his oral evidence given via video link to the COI in April 2013;\n[38]\nand his witness statement given after the COI. At the COI he produced the agreement between Naval-Consult and Cheoy Lee dated 8 December 1994 as well as the Preliminary Trim & Stability Booklet.\n81.\nJohn Lim’s emails are the earliest record of his position on the matters in issue. On 31 December 2012, the Marine Department wrote to John Lim informing him of the collision on 1 October 2012, stating that it was examining the design, construction and maintenance of\nLamma IV\n. The Department referred to the Tender Specification which required the hull to be subdivided by five watertight bulkheads into six compartments. John Lim was asked to confirm whether the design he prepared followed that requirement, particularly the watertight subdivisions. The Marine Department also enclosed the Profile and Deck and Shell Expansion drawings, which depicted Frame ½ as corrugated watertight bulkheads, as well as the Sections and Bulkheads drawing that showed an access opening at the Frame ½ Bulkhead. John Lim was also told that the Damage Stability Calculations submitted by Cheoy Lee treated the bulkhead at Frame ½ as watertight. He was asked to clarify: (i) whether Frame ½ was designed as a watertight bulkhead; (ii) if not, why the structural drawings indicated it was watertight; and (iii) why, the watertight door at the corresponding frame on\nEastern District No. 1\nwas changed to “Access Opening” on\nLamma IV\n.\n82.\nIn his reply dated 2 January 2013, John Lim stated that\nLamma IV\nwas designed with five watertight bulkheads creating six compartments, and that the Access Opening in the Frame ½ Bulkhead was intended to have a watertight door. He added that although the draughtsman had changed the marking from “WT door” to “Access Opening,” it should still have been fitted with a watertight door. He further noted that there was no record of the Specification referred to in the agreement with Cheoy Lee.\n83.\nIn another email on 18 January 2013, John Lim referred to his telephone conversation with Ken Lo where it was confirmed that\nLamma IV\nhad been designed to a one-compartment flooding standard. He stated that his draughtsman had not treated the Frame ½ Bulkhead as watertight. John Lim noted that the design work for\nLamma IV\ntook place many years ago and owing to several relocations of Naval-Consult, documents relating to\nLamma IV\nhad been discarded. He clarified that Naval-Consult had supplied to Cheoy Lee a basic design package comprising, amongst others, the Revised GA, the Sections and Bulkheads drawing, the Shell Expansion drawing and the Intact and Damaged Stability Report booklet.\n84.\nAt the COI, John Lim explained that the apparent inconsistency arose because, when he wrote the first email on 2 January 2013, he did not have the Preliminary Trim and Stability Booklet and had assumed the Frame ½ Bulkhead was watertight. After speaking with Ken Lo, who reminded him that\nLamma IV\nwas a one-compartment flooding vessel, he located the Preliminary Trim and Stability Booklet and realised his earlier assumption was mistaken. He maintained that his change of view resulted from his own review of the booklet, not from influence by Ken Lo.\n85.\nJohn Lim confirmed that KC Tan was the draughtsman who prepared the\nLamma IV\ndrawings. He said KC Tan left Naval-Consult around 1995, shortly after completion of the project. Regarding the adaptation of Eastern District No. 1’s design, he stated that a decision was made during the design process to remove the watertight door at the Frame ½ Bulkhead and replace it with an Access Opening, primarily to reflect\nLamma IV\n’s operational requirements under Hong Kong regulations. He said the one-compartment flooding standard was satisfied because the combined Tank Room and Steering Gear Compartment was smaller than the Engine Room; if the latter met the flooding requirement so would the combined aft space.\n86.\nAs for the Access Opening shown on the Revised GA, John Lim explained that the Frame ½ Bulkhead was not watertight because of the one-compartment flooding standard he had discussed with Ken Lo. He agreed that treating the Steering Gear Compartment and the Tank Room as a single compartment for the purpose of that standard was also consistent with the application of the 0.1L Rule.\n[39]\n87.\nAt the COI, it was put to John Lim that, under Naval-Consult’s contract with Cheoy Lee, the firm was required to design the vessel in accordance with the Tender Specification, which provided for five watertight bulkheads, and that the omission of a watertight door at the Frame ½ Bulkhead might amount to a breach of that contract. John Lim replied that there was no issue so long as the vessel met the relevant stability requirements and that Cheoy Lee had never suggested that the omission constituted a contractual breach.\n[40]\n88.\nIn his witness statement given after the COI,\n[41]\nJohn Lim confirmed that he was responsible for the design of\nLamma IV\nand that the design discussions were conducted between himself and Ken Lo. He said Cheoy Lee provided an initial general arrangement drawing and a verbal brief but did not participate in detailed design decisions. Naval-Consult adapted Eastern District No. 1’s design to meet a one-compartment flooding standard for\nLamma IV\n, whereas Eastern District No. 1 had been built to a two-compartment standard under the High-Speed Craft Code.\n89.\nJohn Lim accepted that his draughtsman had mistakenly labelled the Frame ½ Bulkhead as “W.T. BHD.” in several drawings, including the top-right annotation Section B-B on the Sections and Bulkheads drawing. He said the lower left depiction showing an “Access Opening” without reference to a watertight door correctly reflected the intended arrangement. He maintained that the design intent was for the Frame ½ Bulkhead to be non-watertight, consistent with the one-compartment flooding standard.\n90.\nHe relied on the Preliminary Trim and Stability Booklet to support this view, noting that one of the loading conditions modelled flooding of the Steering Gear Compartment while treating the Frame ½ Bulkhead as non-watertight, and that the vessel nonetheless passed the one-compartment flooding criterion. He said the erroneous labelling in the drawings only came to light when the Marine Department contacted him in December 2012.\n91.\nJohn Lim said that both he and KC Tan were responsible for the draughting and the preparation of the Intact and Damage Stability Calculations for\nLamma IV\n, while he was also involved in the design and checking of the drawings. He said he was not involved in the decisions concerning the addition or relocation of lead ballast and said that Naval-Consult’s role ended with the delivery of the approved design package to Cheoy Lee.\n92.\nIn summary, John Lim’s evidence was that the omission of the watertight door at the Frame ½ Bulkhead was a deliberate design decision made when adapting the Eastern District No. 1 design to meet Hong Kong’s one-compartment flooding standard. The inconsistent “W.T. BHD.” markings on the drawings were drafting errors by his draughtsman. He relied on the Preliminary Trim and Stability Booklet, which he and KC Tan had prepared, to confirm that the design complied with the one-compartment flooding requirement.\nE1.3 Evidence of KC Tan\n93.\nKC Tan was the draughtsman who prepared the Profile and Deck and the Sections and Bulkheads drawings for\nLamma IV\n. He is not a witness at the Inquest; his evidence consists of a witness statement.\n[42]\n94.\nKC Tan worked as a freelance naval draughtsman and was engaged part time by Naval-Consult. The\nLamma IV\nassignment, he explained, was sent to him by email and he returned the drawings to John Lim by email.\n95.\nKC Tan said that the overall concept of the drawings originated from John Lim. He was aware of only one vessel,\nLamma IV\n, being constructed in accordance with those drawings. He confirmed that he was not familiar with the safety standards or regulatory requirements applicable to shipbuilding in Hong Kong. When asked who had inserted the annotations “W.T. BHD”, “watertight bulkhead” or “W.T. Door” at the Frame ½ Bulkhead on the\nLamma IV\ndrawings, he said he did not know who had written them. The suggestion that a “W.T. Door” notation appeared at the Frame ½ Bulkhead is not supported by the drawings produced at this Inquest, which contain no such annotation.\nE2. Indirect Evidence of Design Intent\n96.\nIn addition to the direct evidence of those involved in the design of\nLamma IV\n, the issue of design intent must also be examined through the documentary evidence. This encompasses three principal categories: first, the design and structural drawings of\nLamma IV\napproved by the Marine Department; secondly, the damage stability calculations; and thirdly, the correspondence exchanged between Wuzhou and Vanzon during hull construction.\nE2.1 Drawings\n97.\nNaval-Consult prepared a series of drawings for\nLamma IV\n. These included the Revised GA, the Sections and Bulkheads (Sheet 1 of 2 and Sheet 2 of 2) drawings, the Profile and Deck drawing and the Shell Expansion drawing. These drawings formed part of the design package supplied by Naval-Consult to Cheoy Lee. It is not clear which of these drawings were provided to, or relied upon by, Wuzhou during the hull construction.\nRevised GA\n98.\nThe Revised GA, prepared by John Lim on 12 October 1994, was the same drawing referred to in the agreement between Cheoy Lee and Naval-Consult.\n99.\nThe drawing consisted of four plans: the Profile, the Upper Deck Plan, the Main Deck Plan and the Underdeck Plan. The Underdeck Plan showed the hull subdivided by transverse bulkheads into six compartments. In the same sequence as set out in the Tender Specifications, it depicted the Forepeak, the Void Space, the Crew’s Space, the Engine Room, the Tank Room, and, at the stern, the Steering Gear Compartment. These compartments were delineated by solid vertical lines indicating the watertight bulkheads. At the Frame ½ Bulkhead, between the Steering Gear Compartment and the Tank Room, the vertical line was marked by two shaded triangles with their apexes facing each other.\n[43]\nAccording to the evidence, these triangles are the recognised symbol on general arrangement drawings for an access opening.\nProfile and Deck\n100.\nThe Profile and Deck drawing prepared by KC Tan on 20 December 1994, depicted four views of the vessel. In the Side Shell profile, the bulkhead located at Frame ½ was marked “W.T. BHD”. In the Centreline profile, the same bulkhead was described as “CORRUGATED W.T. BHD”. In the Bottom Plan, it was again labelled “W.T. BHD”.\n101.\nThe drawing was approved on 3 May 1995 by Mr Wong Chi Kin, then a Principal Surveyor of Ships in the Local Vessels Safety Section of the Marine Department. Mr Wong confirmed that the handwritten annotation he had made “See Section B-B of drawing ‘Sections and Bulkheads’” on the Centreline Profile plan referred to the installation of a bracket at the relevant location. The Profile and Deck drawing also bore a typed Marine Department note stating “This drawing is to be read in conjunction with the following drawings: Midship Section, Sections and Bulkheads Drawing, Engine Girder.”\nSections and Bulkheads\n102.\nThe Sections and Bulkheads drawing consisted of two sheets. Of these, only Sheet 1 of 2 is relevant to this Inquest. The draughtsman of the drawing was KC Tan, and it was dated 22 December 1994. Sheet 1 includes a detailed depiction of the bulkhead at Frame ½, showing its corrugated construction, plate thickness and stiffener arrangements. An opening is shown on the port side of the bulkhead, annotated “ACCESS OPENING 1200 x 600 W/50R AT CORNER (PORT ONLY)”. Dr Armstrong explained that this annotation indicated an opening on the port side of the otherwise watertight bulkhead, measuring 1200mm in height and 600mm in width, with the corners rounded to a radius of 50mm. The drawing also specified the precise horizontal and vertical positioning of the opening within the bulkhead.\n[44]\n103.\nLocated at the top right-hand corner in the same sheet, is the Section B-B drawing depicting a cross-section of the same bulkhead at Frame ½ as ‘WT BHD’. This inconsistency within a single drawing, one view showing an opening with reinforcement in the Frame ½ Bulkhead, the other labelling the same bulkhead as watertight, lies at the heart of the dispute as to whether the Frame ½ Bulkhead was intended to be watertight or to have an access opening.\n104.\nThe Sections and Bulkheads drawing (Sheet 1 of 2) was approved by Mr Wong Chi Kin on 3 May 1995. Mr Wong’s evidence was that, when approving the drawing, he read the notation “ACCESS OPENING 1,200 x 600 W/50R AT CORNER (PORT ONLY)” in the context of the other drawings, which indicated the bulkhead to be “WT,” meaning watertight. At the Inquest, Mr Wong stated that his approval had been given on the understanding that a watertight door would be fitted to the Access Opening in accordance with paragraph 12(v) of the Blue Book. He said he had assumed that the Frame ½ Bulkhead was watertight and that his approval had been granted on that basis.\nShell Expansion\n105.\nThe Shell Expansion drawing, prepared by the draughtsman identified as “LEX” and dated 19 January 1995, showed the bulkhead at Frame ½ with the marking “W.T. BHD”, indicating it as a watertight bulkhead. It is noted that John Lim made no mention of any draughtsman named LEX and said the draughtsman for\nLamma IV\nwas KC Tan.\n106.\nAt the Inquest, Mr Wong Chi Kin said the Shell Expansion drawing was approved by a ship inspector though signed by him on 17 May 1995.\nE2.2 Damage Stability Calculations\n107.\nThe Damaged Stability Calculations provide another source from which inferences may be drawn as to whether the Frame ½ Bulkhead was intended to be watertight. Two sets of calculations are material: first, the Preliminary Trim and Stability Booklet prepared by Naval-Consult and second, the Damage Stability Calculations prepared by Mr Cheung Fook Chor of Cheoy Lee in 1996.\nPreliminary Trim and Stability Booklet\n108.\nKen Lo stated that the preparation of preliminary stability calculations was a standard requirement in the vessel design process. Their purpose was to provide an initial check on whether the proposed design could satisfy the applicable stability requirements; if the vessel failed to meet those requirements, the design would have to be modified.\n109.\nJohn Lim told the COI that the Preliminary Trim and Stability Booklet was prepared by Naval-Consult between December 1994 and early May 1995, prior to 9 May 1995.\n[45]\nHe explained that the calculations were carried out on the basis of a one-compartment flooding assumption. For the purposes of the damage assessment, the Steering Gear Compartment and the Tank Room were treated as a single combined compartment. John Lim also agreed that this approach was consistent with the fact that the Steering Gear Compartment measured less than 10 per cent of the vessel’s length and therefore met the 0.1L Rule. He further confirmed that, apart from the Steering Gear Compartment and the Tank Room, the other damage conditions in the booklet were likewise assessed on a one-compartment flooding basis, so that the vessel’s overall damage stability was evaluated against that same standard.\n[46]\n1996 Damage Stability Calculations\n110.\nFollowing the Preliminary Trim and Stability Booklet prepared by Naval-Consult, in which compliance with the one-compartment flooding standard was established, the next set of Damage Stability Calculations for\nLamma IV\nwas prepared in 1996 by Mr Cheung Fook Chor, a naval draughtsman of Cheoy Lee.\n111.\nMr Cheung Fook Chor did not appear at this Inquest owing to age and ill health. His evidence at the COI,\n[47]\ntogether with his three witness statements,\n[48]\nhave been admitted in evidence before this Inquest.\n112.\nMr Cheung Fook Chor, who gave evidence at the COI as a retired naval draughtsman, had served in Cheoy Lee from 1972 until 2007. He held a Higher Certificate in Naval Architecture and was responsible for vessel design drawings, damage stability calculations and the preparation of inclining experiment and stability booklets.\n113.\nMr Cheung stated that in January 1996 he was instructed by his supervisor, Mr Jon Leizaola, to prepare the Inclining Experiment and Stability Calculation Booklet for the newly constructed\nLamma IV\n. The Inclining Experiment was conducted on 31 January 1996 in the presence of a Marine Department Ship Inspector, using only the Revised GA as his reference document. Mr Cheung subsequently prepared the stability calculations, which were submitted to the Marine Department and approved on 26 July 1996.\n114.\nMr Cheung explained that he found the drawings concerning the watertightness of the Frame ½ Bulkhead confusing and therefore proceeded on the assumption that it was watertight, leaving it to Mr Leizaola or the Marine Department to determine otherwise. In preparing the 1996 Damage Stability Calculations, he did not have before him the Sections and Bulkheads drawing, relying instead on the Revised GA, the Profile and Deck drawing and the Lines Plan. He noted that while the Revised GA contained no notation of watertightness, the Profile and Deck drawing marked the Frame ½ Bulkhead as watertight, therefore he treated it as such. Although he had earlier made amendments to the Sections and Bulkheads drawings in March 1995 at Mr Leizaola’s request, his attention had been confined to the specific dimensions he was instructed to alter, and he did not notice the Access Opening at the Frame ½ Bulkhead. He accepted that if the bulkhead were watertight and contained an access opening, a watertight door would have been required.\n115.\nAt the COI, Mr Cheung Fook Chor frankly admitted that in preparing the 1996 Damage Stability Information Booklet, he had omitted to apply the 0.1L Rule. He said that he knew at a glance that the Steering Gear Compartment was short but had forgotten about the 0.1L Rule at the time. He accepted that it was an omission not to have applied the rule and described this omission as “negligent” on his part.\n[49]\n116.\nIn his witness statements, Mr Cheung further recounted that he attended all three inclining and stability experiments conducted for\nLamma IV\nin 1996, in 1998 after the addition of 8.25 tonnes of lead ballast, and in 2005 after the ballast was raised. On each occasion, he was responsible for recording the test results on deck and used the Revised GA as reference but did not enter the under-deck compartments.\n117.\nMr Cheung also described Cheoy Lee’s internal organisation, explaining that the Engineering Department, headed by Mr Leizaola, had overall supervisory responsibility for the Design Department, in which he worked. The Design Department had no separate supervisor and its work on vessel drawings and stability calculations was carried out under the direction of the Engineering Department.\nE2.3 Wuzhou Fax and Vanzon’s Reply\n118.\nThe final category of indirect evidence relevant to design intent concerns the correspondence between Wuzhou and Vanzon.\n[50]\n119.\nOn 21 June 1995, Mr Lee Hang Shing of Wuzhou sent a fax to Mr Fung Kai Ming of Cheoy Lee, copied to Mr Cheng Tak Ming of Vanzon, seeking clarification of the transverse measurement of an opening shown on the construction plan. Wuzhou also proposed cutting a small manhole in the Frame ½ Bulkhead to permit access for welding, to be sealed thereafter for a watertight test, and referred to the later installation of a watertight door at that bulkhead together with associated T65×65×6 stiffeners. On the same day, Vanzon replied to Wuzhou, stating that it had discussed the matter with Mr Fung Kai Ming. The reply confirmed agreement on the transverse measurement, accepted the proposal to cut and later seal the temporary manhole, requesting Wuzhou to suggest the appropriate air-pressure for the test, and agreed that the stiffener work should proceed. The reply also recorded that the work was two to three days behind schedule and asked Wuzhou to expedite the next phase. Copies of both communications were circulated between Wuzhou, Vanzon and Cheoy Lee.\n120.\nMr Fung Kai Ming did not attend the Inquest, his witness statements were admitted into evidence.\n[51]\nMr Fung explained that the Wuzhou fax had been sent to inform Cheoy Lee that Wuzhou intended to cut a small manhole in the aft peak bulkhead of Lamma IV to allow workers to enter the stern compartment for welding, and that the opening would be sealed afterwards for a pressure test. He stated that he was unsure whether he had seen Vanzon’s reply at the time.\n121.\nIn his witness statements dated 30 May 2014, Mr Fung stated that the hull constructed at Wuzhou comprised the decks, the hull and five watertight bulkheads, and that it did not include watertight covers, access openings or watertight doors, which were to be dealt with by Cheoy Lee in Hong Kong. However, in his later witness statements dated 31 July 2014, Mr Fung stated that he could not remember how many watertight bulkheads Lamma IV had.\n122.\nMr Fung confirmed that, after completion of the hull at Wuzhou, it was transported to Cheoy Lee in Hong Kong for further work, including the formation of the Access Opening at the Frame ½ Bulkhead. He likewise could not recall who undertook the work relating to Access Opening on the vessel.\n123.\nMr Cheng Tak Ming, the sole proprietor of Vanzon, explained at the Inquest that although the fax had been addressed to Mr Fung Kai Ming but as it was copied to him, he took the initiative to reply because time was of the essence, and Vanzon was responsible for ensuring the construction was on schedule. At that time, the work was already two to three days behind. He telephoned Mr Fung Kai Ming to seek confirmation that Wuzhou’s proposals were acceptable, upon receiving that confirmation he immediately relayed the response to Wuzhou to avoid further delay.\n124.\nMr Cheng Tak Ming said his focus was on the three specific technical queries raised by Wuzhou: (i) a clarification of transverse dimensions, (ii) approval to open and later seal a manhole for welding and to conduct a pressure test, and (iii) matters of material shortage and schedule recovery. He said he copied the headings from Wuzhou’s fax so that his reply followed the subjects raised by Wuzhou, though the substance of Vanzon’s response dealt only with Wuzhou’s specific proposals. Mr Cheng Tak Ming emphasised that he had no knowledge of any watertight door at the Frame ½ Bulkhead, the reference to a watertight door in Vanzon’s fax was merely an adoption of the subject heading from Wuzhou’s fax for the purpose of structuring the reply.\nE3. Expert Opinions on the Frame ½ Bulkhead\n125.\nDr Armstrong, Dr Renilson, Mr Simon Burthem, Mr Robert Vart and Mr Anthony York each provided opinions on the design intent of the Frame ½ Bulkhead. While their views were based on their respective professional expertise, they were necessarily derived from an interpretation of the available drawings and documents rather than on any direct involvement in the original design or construction of Lamma IV.\nE3.1 Dr. Armstrong\n126.\nIn his report,\n[52]\nDr Armstrong considered that the bulkhead at Frame ½, which he regarded as the aft peak bulkhead, ought to have been watertight in accordance with the drawings, the applicable regulations and the relevant Instructions. He observed that the term “Access Opening” was unhelpful, as it did not indicate whether a watertight door was intended and noted that there was no evidence that a watertight door had ever been fitted at the Frame ½ Bulkhead. Dr Armstrong further stated that, under both the Blue Book and the 1995 Instructions\n,\nany access opening in a watertight bulkhead was required to be fitted with an efficient watertight closing appliance. On that basis, he considered that the use of the term “Access Opening” on a structural drawing of a watertight bulkhead could be regarded as acceptable terminology, provided that a watertight door was intended.\n127.\nWhen John Lim’s evidence was brought to Dr Armstrong’s attention namely, that his draughtsman had mistakenly marked the Frame ½ Bulkhead as “WT BHD” in the Sections and Bulkheads drawing (Section B-B), had annotated the Centreline Profile on the Profile and Deck drawing with “Corrugated WT BHD,” and had done likewise on the Shell Expansion drawing, Dr Armstrong accepted that this explanation was consistent with the manner in which the Preliminary Trim and Stability Booklet treated the Tank Room and the Steering Gear Compartment as a single damaged space, and with the deliberate change in wording from “WT Door” on\nEastern District No. 1\nto “Access Opening” on\nLamma IV\n. Nevertheless, he described it as “an astonishing trail” that a draughtsman would leave such a fundamental inconsistency between drawings, observing that “it is a very basic understanding of drawing that if you change something in one view, you change it in all views.”\n[53]\nE3.2 Dr Martin Renilson\n[54]\n128.\nDr Martin Renilson relied on the Tender Specification, which stated that there were to be five watertight bulkheads, and noted there was no agreement to vary that specification. He considered it contrary to industry practice and inherently unlikely that a shipyard would unilaterally convert a bulkhead initially intended to be watertight into a non-watertight bulkhead without informing either the shipowner or the Marine Department.\n129.\nIn his evidence at the Inquest, given via video link, Dr Renilson stated that six watertight compartments would improve the vessel’s safety and reiterated that this was consistent with what the owner was seeking. When asked whether the 0.1L Rule related to design or calculation, he said that in his view the 0.1L Rule was concerned with damage stability calculation and that at the preliminary design stage the draughtsman was unlikely to have calculated floodable length curves or known whether the bulkhead at Frame ½ was necessary to meet the one-compartment requirement.\n130.\nAs to the drawings, Dr Renilson rejected John Lim’s assertion that the marking of Frame ½ Bulkhead as ‘WT BHD’ was a drafting mistake. He considered it highly unlikely that multiple drawings, including the Profile and Deck, the Sections and Bulkheads and the Shell Expansion, would all contain the same error.\n[55]\nHe said that even if John Lim asserted that the notation was incorrect, the structural depiction of the Frame ½ Bulkhead still indicated a watertight intent.\n131.\nDr. Renilson further relied on the Wuzhou and Vanzon fax correspondence, both referring to a watertight door at the Frame ½ Bulkhead, as evidence that it was understood by all parties that the bulkhead at Frame ½ was to be watertight. Lastly, he noted that all three Damage Stability Booklets prepared by Cheoy Lee treated the Frame ½ Bulkhead as watertight, reinforcing his view that it was so intended.\nE3.3 Mr Simon Burthem\n[56]\n132.\nMr Simon Burthem concluded that, on balance, the design intent was for the Frame ½ Bulkhead to be watertight and fitted with a watertight door. He relied principally on the Tender Specification, which required five watertight bulkheads, and on the stability booklets, which treated the Tank Room and Steering Gear Compartment as separate watertight spaces. He considered the Tender Specification to be the key contractual and technical document defining the vessel’s safety features, including the number and disposition of watertight bulkheads and openings.\n133.\nMr Burthem accepted that inconsistencies in documentation could occur within a complex design process but regarded it as unlikely that Cheoy Lee would have departed from the Tender Specification without consultation with Hongkong Electric. He thought it improbable that the omission of a watertight door resulted from oversight alone, considering it more likely that one of the parties namely, designer, builder, regulator, or owner, had decided the door was unnecessary without ensuring the change was consistently reflected in all drawings.\n134.\nMr Burthem further noted that while the Tender Specification and stability booklets supported a watertight interpretation, the Sections and Bulkheads drawing described the same location as an “Access Opening.” He also observed that the physical inspection of\nLamma IV\nrevealed no evidence that a watertight door had ever been fitted or later removed. He therefore described the evidence as “mixed,” concluding on balance that a watertight door was intended but that the intention might have changed later.\n135.\nMr Burthem also examined the fax correspondence between Wuzhou and Vanzon. He observed that while the fax from Wuzhou referred to a watertight door at the Frame ½ Bulkhead, Vanzon’s reply did not expressly confirm that one would be fitted, nor did it rule out the possibility of a subsequent change of intention by Cheoy Lee. In his view, the correspondence was consistent with the uncertainty and inconsistency seen in the drawings and did not conclusively prove that a watertight door was intended or installed.\n136.\nAt the Inquest, Mr Burthem reiterated that the weight of drawings prepared by different draughtsmen suggested watertightness at the Frame ½ Bulkhead. He regarded it as inconceivable that a competent shipbuilder could simply overlook a watertight door specified in the contract and therefore inferred that the design intent must have changed at a later stage.\n137.\nWhen informed of John Lim’s evidence that the “WT BHD” markings were draughtsman errors and that the “Access Opening” notation reflected the true intent, Mr Burthem accepted that this would alter his view. If the “WT BHD” notations were indeed mistaken, he agreed that the bulkhead at Frame ½ should be regarded as non-watertight and said he would have no reason to doubt that explanation.\nE3.4 Mr Robert Vart\n[57]\n138.\nMr Robert Vart concluded that the evidence strongly suggests that the design intent was for a watertight door to be fitted in the bulkhead at Frame ½, preferring Dr Renilson’s unequivocal finding that there was no doubt as to such intent over the more cautious opinion of Mr Simon Burthem that regarded the evidence as not entirely conclusive. Mr Vart attributed the contradictory notations in the drawings to poor drafting practice within Naval-Consult and/or Cheoy Lee, coupled with miscommunication between Wuzhou and Cheoy Lee. He characterised the omission of the watertight door as an accidental omission rather than any deliberate change of design intent. He further emphasised that the omission should have been detected by both the shipyard’s quality assurance processes and the Marine Department’s surveyors, since procuring and fitting a watertight door was straightforward, inexpensive and standard practice.\n139.\nAt the Inquest, Mr Vart reiterated that the Access Opening at the Frame ½ Bulkhead was intended to be fitted with a watertight door. He explained that, although the Sections and Bulkheads drawing referred only to an “Access Opening”, this was not inconsistent with Section B-B, which described the same bulkhead as a “WT BHD”. In his evidence, established marine practice is that any access opening in a watertight bulkhead must be fitted with an efficient watertight closing appliance.\n140.\nMr Vart further stressed that, had the bulkhead not been intended to be watertight, Cheoy Lee would have avoided the additional cost by omitting the bulkhead altogether and installing a deep frame instead. He also relied on the Wuzhou fax, which expressly referred to watertight testing under air pressure, testing which, in his view, could only have been contemplated if the Access Opening were to be fitted with a watertight door.\n141.\nHe further pointed to the installation of stiffeners around the Access Opening as evidence that the opening was not intended to be temporary, explaining that stiffeners would not ordinarily be fitted to a temporary opening. He accepted, however, that because of the dimensions and configuration of the opening, any watertight door would likely have had to be custom-made rather than an off-the-shelf unit.\n142.\nMr Vart agreed that, if the Frame ½ Bulkhead were intended to be watertight with an Access Opening, he would ordinarily expect a watertight door to be shown on the drawings, in accordance with normal naval architectural practice. He nevertheless maintained that the absence of such depiction did not necessarily mean that the bulkhead was non-watertight, as the drawings had to be read as a whole.\n143.\nWhen informed of John Lim’s evidence at the COI that the drawings depicting the Frame ½ Bulkhead as watertight were mistakes, Mr Vart maintained that his view remained unchanged. According to Mr Vart, the primary document was the Tender Specification, which he regarded as the shipbuilding contract, which clearly required the vessel to be constructed with five watertight bulkheads.\nE3.5 Mr Anthony York\n[58]\n144.\nFollowing his inspection of\nLamma IV\nbetween 13 and 17 November 2012, Mr Anothony York confirmed that the Frame ½ Bulkhead was not watertight in its as-built condition. The bulkhead contained an access opening without a watertight door. He identified a clear discrepancy among the drawings with some depicting the Frame ½ Bulkhead as watertight others, particularly the Sections and Bulkheads drawing, showed only an Access Opening without any indication of a watertight closure.\n145.\nAt the Inquest, Mr York considered the question of what the Frame ½ Bulkhead of\nLamma\nIV should have been by reference to both design intent and regulatory requirements. He accepted that the contractual specifications called for five watertight bulkheads and that, when the drawings were read together, they appeared to indicate that the Frame ½ Bulkhead was intended to be watertight. He stated that under the Blue Book, any access opening in a watertight bulkhead must be fitted with an efficient closing appliance, namely a watertight door. On that basis, he concluded that, in principle, the Frame ½ Bulkhead should have been watertight and fitted with a watertight door.\n146.\nMr York also addressed the ambiguity in the drawings and the proper procedure to follow when such uncertainty arose. He described the representation of the Frame ½ Bulkhead as ambiguous and observed that good design practice would have required the drawing to specify a watertight door explicitly if that was the intention. He emphasised that any intended deviation from the regulatory requirement should have been formally referred to the Marine Department for approval through the submission of amended plans. He regarded the failure to do so, and the absence of any record of such approval, as a procedural and regulatory deficiency.\n147.\nMr York said he could not think of any reason why, if a watertight door had been intended, the drawings referred only to an “Access Opening” rather than a “watertight door”. He also agreed that, from a safety perspective, it made no sense to remove a watertight door at the Frame ½ Bulkhead.\nE4. Submissions of the Parties\n148.\nBoth the Next of Kin and the Marine Department took essentially the same position on this issue, namely, Cheoy Lee knew from the outset that the bulkhead at Frame ½ was to be constructed watertight. Cheoy Lee, however, submitted that it did not have such knowledge or intention. Hongkong Electric maintained that Cheoy Lee knew from the outset that the Frame ½ Bulkhead was intended to be watertight but qualified its position by suggesting that the design intention might have changed at a later stage. HKKF made no submissions on this point.\nE4.1 Next of Kin and the Marine Department\n149.\nThe Next of Kin and the Marine Department submitted that the Tender Specification expressly required the vessel to be constructed with five watertight bulkheads. They argued that if any deliberate design change had been intended to depart from this requirement, such as treating the Frame ½ Bulkhead as non-watertight, such a change would have been clearly recorded across all relevant drawings, including the Profile and Deck, Sections and Bulkheads and Shell Expansion, and would have been formally communicated to Hongkong Electric and the Marine Department. The absence of any such revision or notification was said to demonstrate that no change was made.\n150.\nThey noted that Ken Lo has given two incompatible explanations for the removal of the watertight door at the Frame ½ Bulkhead. At the COI he said the change was justified by the one-compartment flooding standard; at the Inquest he claimed it was required to comply with the 0.1L Rule. The Marine Department argued there was no logical connection between either rationale and the removal of a watertight subdivision. Both parties described the shift as a recent fabrication.\n151.\nThe Next of Kin additionally stressed that removing a watertight subdivision without notifying Hongkong Electric or the Marine Department was contrary to normal shipbuilding practice and could not reasonably have been done informally.\n152.\nReliance was placed on the fax from Wuzhou and Vanzon’s reply, both of which referred to a watertight door at the Frame ½ Bulkhead. It was submitted that this correspondence is inconsistent with any suggestion that the bulkhead was intended to be non-watertight. The China Classification Society survey and certification were said to reinforce this position, as they were conducted on the basis that the bulkhead at Frame ½ was watertight.\n153.\nRelying on the evidence of Dr Renilson, Mr Robert Vart and Mr Simon Burthem, it was submitted that any unilateral removal of a watertight door would have required notification to the approving authorities. The experts further opined that the Frame ½ Bulkhead was constructed with corrugated plating and stiffeners consistent with watertight construction, rather than as a simple web frame, which would have been expected had it not been intended to be watertight.\n154.\nBoth the Marine Department and the Next of Kin submitted that the apparent difference between the drawings depicting the Frame ½ Bulkhead as having an “Access Opening” and others showing the same bulkhead as watertight was the result of a difference in drafting style rather than any change in design intent. They argued that the drawings must be read collectively in order to ascertain the designer’s true intention regarding the watertight integrity of the bulkhead at Frame ½.\n155.\nIn addition, the Marine Department produced the drawings of two vessels constructed by Cheoy Lee\n[59]\nand a Damage Stability Information prepared by the shipyard\n[60]\nin which the aft peak bulkheads of the vessels were located at less than 10% of the vessel’s length. This was relied upon to challenge the credibility of Ken Lo’s evidence that he had believed, under the 0.1L Rule, the aft peak compartment could not be less than 0.1L in length. The Department argued that such belief was inconsistent with Cheoy Lee’s established design practice and that Ken Lo’s assertion to that effect was not credible.\n156.\nThe Marine Department also submitted that the Blue Book did not stipulate that an aft peak bulkhead must be watertight or located at any prescribed position within the vessel. It argued that functionally, on Lamma IV, the bulkhead at Frame 4 performed the structural and watertight functions ordinarily associated with an aft peak bulkhead.\n157.\nReliance was placed on John Lim’s email of 2 January 2013, in which he stated that\nLamma IV\nwas designed with five watertight bulkheads and that a watertight door was to be fitted at the Frame ½ Bulkhead. It was submitted by both the Next of Kin and the Marine Department that this early unprompted statement was more reliable than his later revised position.\n158.\nA central theme of the submissions from the Next of Kin and the Marine Department was that Ken Lo and John Lim, particularly Ken Lo, should not be believed on the circumstances surrounding the omission of the watertight door at the Frame ½ Bulkhead. They argued that Ken Lo’s account namely, that the door was omitted after discussions with John Lim because it was unnecessary under the one-compartment flooding standard and the 0.1L Rule, was inherently improbable and therefore unreliable. They further submitted that his reliance on the 0.1L Rule was a late invention, pointing out that he made no reference at the COI to any such discussion with John Lim in December 1994, and that this explanation only first surfaced at this Inquest.\n159.\nThe Next of Kin submitted that Ken Lo had a clear motive to be untruthful in order to conceal the fact that Cheoy Lee had, through inadvertence, failed to install the watertight door as required by the approved drawings. They argued that his shifting explanations were designed to cover up this omission, notwithstanding that all related civil claims had since been settled.\n160.\nThe Next of Kin further submitted that John Lim’s clarification that the draughtsman of Naval-Consult had mistakenly labelled the Frame ½ Bulkhead as watertight was not a genuine admission of error but an attempt to shield Cheoy Lee from criticism. They argued that, although it may on its face appear unusual for someone to admit to a mistake he did not commit, such an admission would have had minimal adverse implications for Naval-Consult while serving to divert responsibility away from Cheoy Lee, who created an Access Opening at the Frame ½ Bulkhead.\n161.\nThe Marine Department, while expressly stating that it did not speculate as to Ken Lo’s motive, whether personal or to protect the shipyard’s reputation, maintained that the number of inconsistent versions given by him as to the reason for the removal of the watertight door rendered his evidence wholly unreliable.\nE4.2 Cheoy Lee\n162.\nCheoy Lee did not dispute that the Tender Specification expressly required the vessel to be constructed with five watertight bulkheads. However, it submitted that a design change was subsequently made at the design stage based on the application of the one-compartment flooding standard and the 0.1L Rule under\nSchedule 1\nof\nCap. 369AM\n. Cheoy Lee submitted that the preliminary stability calculations demonstrated that the aft peak compartment at the Frame ½ Bulkhead did not require watertight integrity in order to comply with the regulatory requirements and it was therefore entitled to omit the watertight door as part of a rational and deliberate design decision.\n163.\nCheoy Lee maintained that Lamma IV, as constructed and delivered in 1996, satisfied all statutory stability and safety requirements without a watertight door at the Frame ½ Bulkhead. It relied on calculations accepted by Dr Armstrong and corroborated by Dr Peter Cheng, which demonstrated compliance with both the margin line and metacentric height criteria under Schedules 1 and 3 of\nCap 369AM\n.\n164.\nCheoy Lee further submitted that any margin line submersion occurred only following subsequent alterations made after delivery namely, the addition of 8.25 tonnes of lead ballast in 1998 and changes made in 2005, which were not relevant to the design or condition of the vessel at the time of construction.\n165.\nCheoy Lee pointed to the fact that Hongkong Electric accepted the vessel upon delivery without any objection concerning the absence of a watertight door at the Frame ½ Bulkhead. It submitted that Hongkong Electric was provided with the approved drawings in July 1995 and raised no issue, which demonstrated acceptance and understanding of the design.\n166.\nCheoy Lee also submitted that the omission of the watertight door reflected the professional naval architectural judgment of Ken Lo, who believed the regulatory requirements were met. Counsel for Cheoy Lee argued that Ken Lo’s explanation was credible and consistent with his expertise and longstanding role as director of Cheoy Lee.\n167.\nFurther, Cheoy Lee said expert evidence supported the proposition that the Preliminary Trim and Stability Booklet’s damage stability calculations treated the Frame ½ Bulkhead as non-watertight and the vessel remained compliant. This confirmed the omission of the watertight door was an intentional design feature rather than an oversight.\n168.\nFinally, Cheoy Lee submitted that the sinking of Lamma IV resulted from an extraordinary two-compartment flooding event beyond the one-compartment flooding standard applicable to such vessels. The omission of the watertight door was not causative of the sinking and was permissible within the regulatory framework at the time of design.\nE4.3 Hongkong Electric\n169.\nHongkong Electric adopted a limited and neutral stance on Issue 1. It submitted that, on the face of the contractual specifications and the Wuzhou fax, there was clear evidence that Cheoy Lee knew or intended from the outset that the Frame ½ Bulkhead was to be constructed watertight. The separate question was whether the shipyard later made a deliberate decision not to build it watertight, as opposed to the omission being inadvertent. Hongkong Electric submitted that this depended on the credibility of Ken Lo and John Lim, on which it expressed no view.\n170.\nHongkong Electric emphasised its position as a lay purchaser and end-user, rather than a technical or regulatory participant in the design process. Its involvement with the Frame ½ Bulkhead was entirely secondary. Hongkong Electric maintained that it discharged its contractual obligations as purchaser and operator and had no part in the design decisions relating to watertight subdivision.\n171.\nClause 17 of the Tender Specification drafted and signed by Cheoy Lee required the hull to be subdivided by five watertight bulkheads into six compartments. Hongkong Electric pointed out that this clause was introduced by Cheoy Lee and did not appear in its Specifications, which were confined to operational parameters such as speed, capacity and dimensions. Accordingly, Hongkong Electric was entitled to rely on Cheoy Lee’s professional expertise for all naval-architectural matters, including watertight subdivision.\n172.\nUnder Clause 9 of the Tender Specification, any variation required mutual agreement before work commenced. Hongkong Electric stated that it was never informed of any variation or decision to depart from the watertight specification, and it gave no consent to any such change.\n173.\nHongkong Electric also highlighted the regulatory environment in which\nLamma IV\nwas constructed. Prior to 2007, the construction and survey of local vessels were governed only by the Blue Book, an internal Marine Department guideline rather than legislation. In practice, approval and certification rested largely on the professional judgment of the Marine Department officers. Vessel owners, including Hongkong Electric, relied on the Marine Department’s approval and licensing processes to ensure compliance. As an electricity supply company without in-house naval architectural expertise, Hongkong Electric deferred to Cheoy Lee and the Marine Department on all technical matters and did not engage independent consultants, in line with industry practice at the time.\n174.\nLamma IV\nwas certified by the Marine Department in 1996 and thereafter received annual Certificates of Survey for 17 consecutive years without comment on the Frame ½ Bulkhead. The Intact and Damage Stability Calculations were approved by the Department in 1996, 1998 and 2005 as conditions of certification. Hongkong Electric therefore had no reason to question the vessel’s structural integrity or the watertight status of the Frame ½ Bulkhead until the issue was first raised by Dr Armstrong at the COI.\n175.\nExpert analyses at the COI indicated that\nLamma IV\n, even without a watertight door at the Frame ½ Bulkhead, would have satisfied the damage stability requirements applicable in 1996. Hongkong Electric relied on this as confirmation that the vessel was safe in its certified configuration.\n176.\nHongkong Electric stressed that it played no role in preparing or verifying the Damage Stability Calculations, which was within the professional domain of Cheoy Lee and Naval-Consult, subject to the Marine Department’s scrutiny. As a purchaser, it was both reasonable and necessary for Hongkong Electric to rely on the professional and regulatory expertise of others.\nE5. Analysis of Evidence\n177.\nIn assessing the evidence on Issue 1, it is necessary to consider not only the regulations in force at the time, but also how those regulations were understood and applied during the design stage. Ship design involves forward planning, and designers must make decisions based on how they expected the rules and regulations to be interpreted and applied by the Marine Department at the time of approval. The question is therefore not whether those interpretations were later shown to be correct, but whether the design decisions were genuinely and reasonably made on that basis, rather than arising from mistake or oversight.\n178.\nIssue 1 is therefore concerned with whether the explanations given for omitting a watertight door at the Frame ½ Bulkhead were credible and reasonable when assessed by reference to the regulatory requirements in force at the time of design and construction in 1994 and 1995. These included the one-compartment flooding standard and the 0.1L Rule, as they were then understood and applied. Subsequent events, including the collision and sinking of Lamma IV in 2012, should not be conflated with the question whether the design decision taken in 1994 complied with the regulations then in force.\nE5.1 Ken Lo’s Credibility and Understanding of the 0.1L Rule\n179.\nIn assessing Ken Lo’s evidence across the COI and this Inquest, it is essential to recognise the different purposes of the two proceedings. The COI was directed to the cause and circumstances of the collision on 1 October 2012. Watertight subdivision and design rationale arose as background and Ken Lo’s understanding of the 0.1L Rule was not examined in any depth.\n180.\nBy contrast, this Inquest was expressly ordered by the Court of Appeal to determine six specific issues, one of which concerns the design intent behind the absence of a watertight door at the Frame ½ Bulkhead. That required a detailed examination of the one-compartment flooding standard, the 0.1L Rule, the design drawings and the Preliminary Trim and Stability Booklet. Ken Lo’s evidence on these matters was therefore the subject of detailed examination for the first time at the Inquest.\n181.\nCounsel for the Marine Department relied on paragraph 17 of Ken Lo’s witness statement at the COI\n[61]\nas demonstrating a correct understanding of the 0.1L Rule, namely that the Tank Room and the aft peak\n[62]\ncould be treated as a single compartment for damage stability purposes because the length of the aft peak was less than 0.1 of the vessel’s length. However, paragraph 17 should not be read in isolation. When the statement is read as a whole, in particular together with paragraph 32, it is apparent that Ken Lo treated the 0.1L Rule as determining the design decision as to whether the bulkhead at Frame ½ was required to be watertight.\n182.\nIn paragraph 32, Ken Lo explained that he did not consider the bulkhead at Frame ½ would need to be made watertight because the length of the Steering Gear Compartment was less than 0.1L, which he described as a statutory requirement. That explanation was consistent with the view that the 0.1L Rule was considered in the design of the placement and watertightness of bulkheads, and not merely in the subsequent assessment of damage stability. Read as a whole, Ken Lo’s evidence showed a consistent understanding that the 0.1L Rule was relevant to design considerations, including the treatment of the aft peak bulkhead.\n183.\nAt the COI,\n[63]\nwhen asked what was “not workable” about fitting a watertight door to the Access Opening at the Frame ½ Bulkhead, Ken Lo’s answers made it clear that the 0.1L Rule was a design constraint in his mind at the material time. He explained that installing a watertight door at the Frame ½ Bulkhead would “break the 0.1L requirement”, as that bulkhead lay within 0.1L of the stern. He went on to say the door could of course be left in place, but in that event, it served no real purpose; he repeated that a watertight door was unnecessary unless the flooding standard required it. Although he did not specifically mention the December 1994 discussion with John Lim, the substance of his COI answers showed that he regarded the 0.1L Rule as a relevant consideration at the design stage and that this was not an explanation invented for the present Inquest.\n184.\nAt the Inquest, Ken Lo’s evidence concerning the decision on the watertightness of the Frame ½ Bulkhead was given in greater detail. He described the 0.1L Rule as exerting a “location restraint” on where watertight bulkheads could be placed, if a bulkhead lay within 0.1L of the stern, the Marine Department would treat it as the aft peak bulkhead and would expect it to meet the survivability standard. Because the Steering Gear Compartment aft of the Frame ½ Bulkhead was shorter than 0.1L, making that bulkhead watertight would create a compliance problem. After discussion with John Lim, the simpler solution was to omit the watertight door so that the Frame ½ Bulkhead would not be treated as a subdivision boundary, making the Frame 4 Bulkhead as the effective aft peak bulkhead.\n185.\nExpert evidence supports the substance of this reasoning. Dr Armstrong explained that the aft peak bulkhead is ordinarily the final barrier against flooding from propeller or rudder-shaft seal failure and is invariably watertight and located close to the stern. He had never encountered a design where this was otherwise.\n[64]\n186.\nDr. Renilson agreed that the aft peak bulkhead, while not prescribed at a precise location by regulation, is generally watertight and situated near the stern. He regarded it as odd to treat the Frame 4 Bulkhead as the aft peak bulkhead because of its distance from the transom and observed that the Marine Department would naturally have assumed the Frame ½ Bulkhead to be the aft peak bulkhead.\n187.\nMr Simon Burthem accepted that the aft most watertight bulkhead is typically viewed as the aft peak bulkhead, though he considered that the Frame 4 Bulkhead could perform the function. His evidence was consistent with Ken Lo’s explanation that the purpose of such a bulkhead is to prevent progressive flooding.\n188.\nI find that Ken Lo’s reasoning made practical sense in the regulatory and design context at the time. According to the COI Report,\n[65]\nMr Wong Chi Kin, stated that if the bulkhead at Frame ½ had a watertight door fitted to the Access Opening, it could be considered an aft peak bulkhead as required by paragraph 12(iv) of the Blue Book; if not, it could not be so considered.\n189.\nGiven that the Steering Gear Compartment aft of Frame ½ was shorter than 0.1L, Ken Lo and John Lim understood that such a bulkhead would not meet the minimum subdivision length under the 0.1L Rule. They therefore decided not to fit a watertight door at Frame ½, so that the Frame 4 Bulkhead would instead be treated as the aft peak bulkhead for regulatory assessment. The Preliminary Trim and Stability booklet prepared by Naval-Consult showed that, with the Frame ½ Bulkhead left non-watertight, Lamma IV nevertheless satisfied the damage stability calculations. Seen in its proper context, this was a rational design decision, not an ex-post facto justification as alleged.\n190.\nAlthough Ken Lo’s description of the 0.1L Rule as a “location restraint” was not technically accurate, it nevertheless reflected his understanding of the practical consequence of the 0.1L Rule in the design context in which he was working, namely that a watertight bulkhead located very close to the stern would not, for regulatory and damage stability purposes, be treated as an effective subdivision boundary. Ken Lo’s choice of words, although not technically correct, and strictly inaccurate insofar as the 0.1L Rule is applied for calculation purposes, was not misleading as to the substance of the design rationale he was putting forward.\n191.\nThe fact that Ken Lo did not mention his December 1994 discussion with John Lim at the COI does not mean it did not take place, it simply reflects the narrower scope of that inquiry. His evidence at this Inquest is more detailed as the questioning was directed specifically towards understanding the design rationale of the Frame ½ Bulkhead. I do not find any real inconsistency between his evidence at the COI and at this Inquest, there is simply more detail now because of the focus of this Inquest, the difference lies in emphasis, not reliability. His evidence at the Inquest was therefore not a departure from, but a clearer articulation of an explanation he had already put forward.\n192.\nTherefore, I reject the submission that Ken Lo’s explanation that the removal of the watertight door at the Frame ½ Bulkhead, by reference to the 0.1L Rule, is a recent fabrication. The suggestion that Ken Lo lied to protect Cheoy Lee from the alleged failure to install the watertight door at the Frame ½ Bulkhead defies common sense and is unsupported by the evidence. All related civil proceedings have long concluded, Cheoy Lee’s reputation had already been publicly affected by the COI Report and, in any event, will remain associated with one of Hong Kong’s worst maritime tragedies.\n193.\nQuite apart from that, having regard to Ken Lo’s professional qualifications\n[66]\nand experience, it is implausible that he would have fabricated reliance on the 0.1L Rule as a justification for the design decision only at the Inquest. The COI took place shortly after the accident, when the events were still recent and issues of responsibility and potential civil liability were at their height. By contrast, at the time of the Inquest, all civil proceedings had long since concluded, as accepted by counsel for the Next of Kin. If reliance on the 0.1L Rule had been manufactured by Ken Lo to conceal an omission by Cheoy Lee, it would be inherently more likely for such an alleged fabrication to have been put forward at that earlier stage, rather than more than a decade later at the Inquest. The suggestion that the 0.1L Rule was only relied upon for the first time at the Inquest is therefore illogical.\n194.\nAgainst that background, I find that Ken Lo gave his evidence in a straightforward manner. He did not attempt to embellish his account; his imperfect recollection was consistent with the passage of time rather than with invention. When it was initially put to him that he had not mentioned the 0.1L Rule at the COI, Ken Lo did not protest but simply said he could not recall, even though he had in fact done so.\n[67]\nLikewise, when his understanding of the 0.1L Rule was questioned, he did not become defensive or attempt to justify himself while a dishonest witness might be expected to be more insistent or defensive in such circumstances, Ken Lo was neither. His demeanour and evidence were consistent with a witness recounting event as he remembered them, rather than promoting an invented account. I find him to be a truthful and credible witness.\nE5.2 Scope of Application of the 0.1L Rule\n195.\nA key issue in this Inquest was whether the 0.1L Rule applied solely to calculation, as asserted by the Next of Kin and the Marine Department, or whether it also had relevant consideration at the design stage, including the positioning of watertight bulkheads. Their case was that the 0.1L Rule was only relevant to calculation with no role in design or construction. They further submitted that Ken Lo’s understanding that the 0.1L Rule was relevant to determining the location of the aft peak bulkhead at the design stage was wrong, and that for someone of his professional qualifications, such a mistake undermined his credibility and reliability.\n196.\nThe evidence showed that Ken Lo was not alone in considering the 0.1L Rule to be relevant to the design and construction of the vessel. Mr Cheung Chuen Yau, Engineering Manager of Cheoy Lee, stated at the Inquest that the 0.1L Rule governed both the construction of the vessel and the stability calculations. Senior Surveyors of Ship of the Marine Department also expressed the same view in their witness statements at the COI. Mr Leung Wai Hok, himself a naval architect, stated that a vessel should be designed such that the spacing between watertight bulkheads was not less than 10% of the vessel’s length; if the spacing was less, only one of the bulkheads would be treated as watertight for the purpose of the damage stability calculation.\n[68]\nMr Liu Chiu Fai also confirmed that the design must ensure that if the distance between two adjacent watertight bulkheads was less than 0.1L, only one of them would be regarded as forming part of the watertight subdivision.\n[69]\nMr Choi Chi Chuen stated that the 0.1L Rule required a vessel to be designed so that the minimum distance between any two watertight bulkheads was not less than 10% of the vessel’s length. If the spacing between two bulkheads was less than 0.1L, the watertightness of one of those bulkheads is not to be regarded as effective for the purposes of determining the vessel’s watertight subdivision.\n[70]\nIt follows that Ken Lo’s understanding of the 0.1L Rule was shared by other witnesses, including Senior Surveyors of Ships of the Marine Department.\n197.\nDr Renilson, however, regarded the 0.1L Rule as confined to damage stability calculations. Mr Robert Vart took a similar view, describing it as a safety criterion used in stability calculation, not as a designer’s tool and unconnected with construction or bulkhead arrangement.\n198.\nAt the Inquest, Dr Renilson accepted that floodable length is determined during the design process and that bulkheads are to be positioned within the permissible limits. That acceptance necessarily means that the designer must have regard to the applicable stability criteria when deciding where bulkheads are to be placed. Although Dr Renilson characterised the 0.1L Rule as a calculation criterion, his evidence on floodable length indicates that a stability criterion which governs the permissible location of a watertight bulkhead is, in practice, a matter that the designer must have regard to at the design stage.\n199.\nMr Simon Burthem agreed that paragraph 6(6) of\nSchedule 1\nof\nCap 369AM\n, entitled “Minimum Spacing of Bulkheads”, was derived from paragraph 10.2.4 of United Kingdom Merchant Shipping Notice MSN 1823. That provision prescribes minimum longitudinal spacing requirement between effective watertight bulkheads for the purposes of damage stability assessment, one of which is the 0.1L Rule.\n200.\nIn explaining that provision, Mr Burthem said that it is concerned with the assumed maximum extent of damage to a vessel. Although the heading refers to “Minimum Spacing of Bulkheads”, what the rule addresses is the extent of damage to be assumed in a damage stability assessment, and the consequence that any bulkhead lying within that assumed extent of damage would be included in the damaged length. He explained that, in that context, “if you were designing the ship and you have compartments, you don’t want your bulkheads to be closer than this, because then you would inevitably get extended damage into the adjacent compartments”.\n201.\nWhen asked whether there was any rule requiring the physical distance between two bulkheads to be not less than 0.1L, Mr Burthem explained that there was no such physical prohibition, and that a shipbuilder could, in principle, place a bulkhead within that distance. However, he made clear that such a bulkhead would be ineffective from a damage stability perspective, stating that “you could put a bulkhead in the middle of this, but it would be ineffective from the point of damage stability”. He emphasised that additional bulkheads could always be installed, but that doing so would add weight, cost and operational difficulty without conferring any damage stability benefit where the bulkhead lay within the assumed extent of damage and was therefore disregarded in the calculations.\n202.\nAlthough Mr Burthem agreed with counsel for the Marine Department that the 0.1L Rule is applied as part of the damage stability assessment, his evidence makes clear that the practical effect of the 0.1L Rule is to determine which bulkheads can operate as effective watertight subdivision for damage stability purposes. Where two bulkheads are spaced at less than 0.1L, only one can be treated as effective in the calculations. In the case of\nLamma IV\n, the Frame ½ Bulkhead lay within 0.1L and, on Mr Burthem’s evidence, could not be treated as an effective watertight subdivision or as the aft peak bulkhead for damage stability purposes in accordance with paragraph 6(6) of\nSchedule 1\nof\nCap 369AM\n.\n203.\nAt the Inquest, Mr Anthony York described the 0.1L Rule as a rule used for calculation and assessment, forming part of the floodable length and damage stability process. He accepted that, procedurally, the 0.1L Rule determined how bulkheads were treated for subdivision and survivability, but he added that its implications extended beyond mere calculation. He explained that the 0.1L Rule existed to prevent designers from producing vessels that appeared compliant on paper but would not in practice survive flooding, and that it therefore constrained how bulkheads were arranged during the design process. Taken as a whole, Mr York’s evidence was that while the 0.1L Rule was expressed as a calculative criterion, its purpose and practical effect were integral to the design stage. It operated as a design constraint, guiding the placement of watertight bulkheads to ensure the arrangement would satisfy statutory damage stability requirements.\n204.\nDr Armstrong stated that “the 0.1L Rule should apply equally to watertight subdivision or floodable length and to damage stability.”\n[71]\nThis must necessarily mean that the 0.1L Rule governs both the physical arrangement of the vessel and the assessment of its survivability. Watertight subdivision and floodable length concern the layout of bulkheads and the length of compartments, matters determined during the design stage, whereas damage stability relates to the subsequent verification that the vessel, as designed, can remain afloat when any one compartment is flooded.\n205.\nDr Armstrong also described the practical process of positioning bulkheads, beginning with the collision bulkhead and progressively checking each compartment against the flooding standard.\n[72]\nHis explanation showed that determining the position of bulkheads was a design consideration inseparable from compliance with the flooding and stability requirements on which the 0.1L Rule is founded.\n206.\nIn his report,\n[73]\nDr Armstrong emphasised that watertight subdivision was a defining feature of ship design, determined at the outset of the design process and often dictating the vessel’s main structural features. This confirms that the application of floodable length and the 0.1L Rule arose as a matter of design, not merely at the later calculation stage.\n207.\nThe Blue Book did not prescribe the distance between the aft peak bulkhead and the stern. Rather, it established the minimum distance that must separate watertight bulkheads for both to be treated as effective subdivision. If the spacing was less than 0.1L, the bulkheads were treated as forming a single compartment for damage stability calculations purposes. In effect, the 0.1L Rule defined the framework within which watertight subdivision had to be arranged, while the one-compartment flooding standard then tested whether that arrangement would keep the vessel afloat.\n208.\nRegulation 6\nof\nCap. 369AM\nrequires a ship to be subdivided into watertight compartments, the maximum length of which must be calculated in accordance with the applicable provisions of Schedule 1. That wording links the vessel’s physical watertight subdivision directly to the maximum permissible compartment length derived from Schedule 1, which incorporates the 0.1L Rule. As the Regulation requires the actual arrangement of watertight bulkheads to comply with that calculated maximum, the Schedule 1 criteria must be applied at the design stage, when the subdivision is first determined. A vessel cannot be approved or certified unless its proposed subdivision satisfies those requirements. The operation of the Regulation therefore proceeds on the basis that the designer applies the 0.1L Rule when fixing the position of watertight bulkheads.\n209.\nThis interpretation of Regulation 6 is reinforced by the expert evidence. I find that Dr Armstrong’s evidence provides a clear analysis of the operation of the 0.1L Rule, namely that it is integral to the vessel’s design process and not merely a calculation tool. Mr Anthony York’s explanation that the 0.1L Rule operates as a constraint guiding the designer in the placement of watertight bulkheads is consistent with Ken Lo’s understanding and supports the conclusion that the rule was applied, in practice, both as a design consideration and as a damage stability criterion. Although Mr Burthem did not describe the 0.1L Rule as a formal location constraint, his evidence explains why, in practical terms, the rule necessarily bears upon where an effective watertight bulkhead can be placed. Ken Lo’s description of the 0.1L Rule as a “location constraint” was therefore not a statement of a physical prohibition, but a recognition of its practical effect in determining the location of effective watertight subdivision for damage stability purposes.\n210.\nIn the circumstances, I find that while the 0.1L Rule is a calculation standard, it is not confined to damage stability calculations but is necessarily relevant at the design stage when watertight subdivision is determined. A competent designer would take it into account when determining the subdivision arrangement; otherwise, watertight bulkheads may be arranged in a manner incapable of passing the later calculations. In practice, design and calculation is a continuous process: the calculations confirm regulatory compliance, while the design is determined with that compliance in mind.\n211.\nAccordingly, irrespective of the terminology used by Ken Lo in describing the 0.1L Rule, I find that Ken Lo and John Lim were entitled, and acted reasonably, to take the 0.1L Rule into account when determining the watertight subdivision of\nLamma IV\nin 1994.\nE5.3 Application of the 0.1L Rule in the Design of Lamma IV\n212.\nThe Next of Kin and the Marine Department further argued that the 0.1L Rule did not prohibit the installation of a watertight door at the Frame ½ Bulkhead and that there was no valid reason to remove it. These submissions overlook the essential question in 1994 and 1995 namely, not whether a watertight door was prohibited, but whether it served any functional or regulatory purpose. The Preliminary Trim and Stability Booklet prepared between late 1994 and early 1995, demonstrated compliance with the one-compartment flooding standard without a watertight door at the Frame ½ Bulkhead.\n213.\nAt the COI,\n[74]\nDr Armstrong explained that paragraph 6(6) of\nCap. 369AM\ndoes not give the designer a choice as to which bulkhead to treat as watertight but directs that the bulkhead corresponding to the longest floodable length must be used. He said that where the aftmost bulkhead is located less than 0.1L from the stern, that bulkhead cannot be treated as part of the watertight subdivision. Referring to the Steering Gear Compartment of\nLamma IV\n, he agreed with the Marine Department’s Mr Wong Chi Kin that the principle of the 0.1L Rule is to disregard any bulkhead which would otherwise form a compartment shorter than 0.1L. Ken Lo confirmed at the Inquest that Dr Armstrong’s interpretation aligned with his own understanding of the 0.1L Rule.\n214.\nThe Frame ½ Bulkhead of Lamma IV was located less than 0.1L from the stern. On the evidence, a watertight bulkhead in that position was not, in practice, treated as forming the effective watertight subdivision for the purposes of damage stability assessment under the 0.1L Rule. Whether a watertight door was fitted at the Frame ½ Bulkhead did not, of itself, alter how the damage stability was assessed or which bulkhead was regarded as the relevant watertight boundary.\n215.\nIn his report,\n[75]\nDr Armstrong stated that, prior to the addition of ballast in 1998, the permissible floodable length was not exceeded and that the watertight door at the Frame ½ Bulkhead could have been omitted without breaching the requirements relating to floodable length or damage stability. At the COI,\n[76]\nhe further observed that, for damage stability purposes, the Steering Gear Compartment and the Tank Room would in any event be treated as a single compartment, rendering the presence of a watertight door at the Frame ½ Bulkhead immaterial for those calculations.\n216.\nAgainst that background, the decision to allocate the watertight subdivision at the Frame 4 Bulkhead, and to provide an Access Opening rather than a watertight door at the Frame ½ Bulkhead, was consistent with the understanding of how the 0.1L Rule would be applied in regulatory and stability assessments.\n217.\nDr Renilson said there was “no reason whatsoever for not exceeding the minimum one-compartment standard” and described it as “an odd thing to deliberately make a bulkhead, initially intended to be watertight, non-watertight.”.\n[77]\nMr Robert Vart agreed, telling counsel for the Next of Kin that he had never come across a situation where a ship has been “deliberately downgraded”, as he put it, “from being extra safe to being just meeting the requirements”, adding that there would be “no point in doing so”. However, neither expert, nor the Next of Kin or the Marine Department, identified any regulatory or technical requirement in 1994 and 1995 that required a vessel designed to a one-compartment flooding standard to retain watertight subdivision intended to provide protection beyond that standard.\n218.\nWhile a watertight door at the Frame ½ Bulkhead would have increased safety in a two-compartment flooding scenario, that fact alone did not give rise to any regulatory requirement. Lamma IV was designed to a one-compartment flooding standard, and no rule, guidance, or established practice in force at the material time required additional safety measures beyond that standard.\n219.\nThe criticism made by the Next of Kin, the Marine Department, Dr Renilson and Mr Vart in relation to the removal of the watertight door at the Frame ½ Bulkhead is circular. It proceeded from the premise that the removal was itself wrong and then relied on that premise to criticise the design decision.\n220.\nIn my view, the criticism is founded on two assumptions: first, that a safety feature providing protection beyond the applicable regulatory standard ought to have been retained; and second, the removal of such a feature is inherently unsafe. Neither assumption is supported by any identified regulations, standard or shipbuilding practice in force in 1994 and 1995.\n221.\nThe first assumption that\nLamma IV\nwas required to retain the watertight door at the Frame ½ Bulkhead necessarily implies an obligation to follow the design of its basis ship,\nEastern District No. 1\n. This assumption was evident from the questioning of Mr Robert Vart by counsel for the Next of Kin, which proceeded on the premise that reducing a safety feature from a level exceeding regulatory requirements to the minimum standard was inherently improper.\n222.\nIt was evident in the questioning that, because\nEastern District No. 1\n, as the basis ship of\nLamma IV\n, was fitted with a watertight door at the corresponding bulkhead,\nLamma IV\nshould likewise have retained such a door. In the case of the Marine Department, although the assumption was not articulated expressly in the same way, it was implicit in its criticisms directed at the decision to remove the watertight door.\n223.\nAs explained by Dr Renilson in his evidence, a “basis ship” is not a mandatory template but a reference design used as a starting point for a new vessel. Designers do not begin from scratch but commonly adapt an existing vessel to meet different operational, regulatory and design requirements. A vessel derived from a basis ship need not replicate all of its features, and departures from the basis ship’s design is normal.\n224.\nThe assumption that\nLamma IV\nwas required to follow the design of\nEastern District No. 1\n, including its watertight sub-division, is wrong for two reasons. First, Eastern District No. 1 was an ocean-going vessel designed to withstand two-compartment flooding and built in accordance with the High-Speed Craft Code, which did not apply to\nLamma IV\n. Second, a basis ship is not a mandatory template and a departure from its design does not of itself constitute error. The weakness of the assumption is illustrated by the obvious point that, had Eastern District No. 1 itself been designed only to a one-compartment flooding standard and not fitted with a watertight door at the corresponding Frame ½ Bulkhead, the criticism made on this basis would fall away.\n225.\nThe second assumption underlying this criticism is that the omission of the watertight door at the Frame ½ Bulkhead rendered\nLamma IV\nless safe. That was submitted by the Next of Kin, relying on the evidence of Dr Renilson and Mr Robert Vart. However, neither the Next of Kin nor the experts explained why, or in what respect,\nLamma IV\nwas less safe at the time of its construction in 1995. A vessel can only be regarded as less safe if it fails to meet the survivability standard prescribed by the applicable regulations. In the case of\nLamma IV\n, that standard was one-compartment flooding, and the expert evidence confirmed that\nLamma IV,\nas built, met that requirement. The argument that the vessel was nevertheless less safe can only be supported by judging the 1994 design decision retrospectively by reference to the 2012 collision, and an extreme two-compartment flooding scenario, that\nLamma IV\nwas never required to survive. That is an erroneous approach founded on hindsight.\n226.\nTogether, these two assumptions lead to a standard that was not required of\nLamma IV\n, a sheltered water vessel. They overlook the proper design issue which was, whether a watertight door was required to meet the one-compartment flooding standard and the applicable regulatory requirements, including the 0.1L Rule.\n227.\nDr Renilson further questioned whether Naval-Consult could have known, at the design stage, that floodable length calculations justified the removal of the door, suggesting that such calculations were unlikely to have been completed.\n228.\nKen Lo explained that, at the design stage, it was understood that the combined length of the Steering Gear Compartment and the Tank Room was shorter than that of the Engine Room, which was known to satisfy the one-compartment flooding standard. On that basis, it was concluded that the combined space would likewise comply, even though formal floodable length calculations for\nLamma IV\nhad not yet been completed at the design stage. Those calculations were subsequently verified in the Preliminary Trim and Stability Booklet prepared by Naval-Consult before construction, and any non-conformity would have required design modification.\n229.\nCommenting on the Preliminary Trim and Stability Booklet prepared by Naval-Consult, Dr Armstrong expressed the view that its preparation prior to construction demonstrated due diligence by Cheoy Lee and that the necessary floodable length calculations had been properly undertaken.\n[78]\n230.\nDr Armstrong stated in his report that\nLamma IV\nwas designed in accordance with the stability regulations in force at the time and was intended to remain afloat in a stable condition with any one watertight compartment flooded below decks.\n[79]\nHe confirmed in another report that, as built in 1995,\nLamma IV\ncomplied fully with the one-compartment flooding standard.\n[80]\n231.\nFollowing the collision, the Marine Department sought clarification from the United Kingdom Maritime and Coastguard Agency on the interpretation of minimum bulkhead spacing and the treatment of small aft compartments. In its email,\n[81]\nthe Marine Department noted that the 0.1L Rule was inherited from the Maritime and Coastguard Agency.\n232.\nIn its reply, the Maritime and Coastguard Agency explained that, in the United Kingdom, passenger ships would ordinarily be expected to have an aft peak bulkhead. However, on smaller passenger ships, this requirement could be satisfied by the Engine Room bulkhead rather than by a separate aft peak bulkhead. The Maritime and Coastguard Agency further stated that, although the provision of a distinct aft peak compartment was good practice, it would not be regarded as essential where the aft peak space and the next compartment forward, taken together, met the applicable damage stability requirements.\n233.\nIn that context, the Maritime and Coastguard Agency indicated that it would regard the subdivision arrangement adopted on\nLamma IV\nas acceptable, given that the Steering Gear Compartment and the Tank Room together satisfied the subdivision requirements. This clarification is consistent with the design approach adopted by Ken Lo and John Lim, who removed the watertight door at the Frame ½ Bulkhead so that the aft spaces would be treated as a single compartment and ensured that the Frame 4 Bulkhead constituted the first effective aft watertight subdivision. The Maritime and Coastguard Agency’s response therefore supports the conclusion that the subdivision arrangement of\nLamma IV\nas built was compliant and not deficient.\n234.\nWhen asked by counsel for the Marine Department whether a designer could remove a watertight door under the 0.1L Rule, Mr Anthony York accepted that this was permissible, provided the modification was supported by a subsequent stability assessment. He added that the 0.1L Rule must be read together with the wider regulatory requirements, and that any competent naval architect would either review the existing stability data or obtain fresh calculations.\n235.\nMr Chan See Yin, Assistant Director of Marine of the Marine Department, confirmed that if\nLamma IV\nmet the damage stability requirements, the presence or absence of a watertight door at the Frame ½ Bulkhead made no material difference. Mr Chick King Fai, who held the same post at the material time, agreed. He stated that fitting a door at the Frame ½ Bulkhead was a matter of discretion, provided the vessel complied with the required flooding standard. Mr Wong Chi Kin likewise explained that, because the Steering Gear Compartment aft of Frame ½ Bulkhead was shorter than 0.1L, the latter could not be treated as an effective watertight subdivision regardless of whether a door was fitted, and that the presence of such a door was therefore irrelevant for regulatory purposes.\n236.\nI accept Dr Armstrong’s opinion that the Preliminary Trim and Stability Booklet reflected a deliberate and informed design process by Cheoy Lee and Naval-Consult. On the evidence, I find that the omission of the watertight door at the Frame ½ Bulkhead cannot be regarded as non-compliant with the regulations in force at the time of design and construction\n.\n237.\nAccordingly, I find that the omission of a watertight door at the Frame ½ Bulkhead reflected a rational design decision, taken in accordance with the understanding and application of the one-compartment flooding standard and the 0.1L Rule at the time. The fact that the 2012 collision resulted in flooding of more than one compartment does not justify a retrospective reassessment of that decision by reference to a standard that was not required at the relevant time. A design choice made in 1994 in compliance with the regulatory requirements is not undermined by a later casualty resulting in damage of a kind which the regulations did not require the vessel to withstand.\nE5.4 Corroborative Evidence Supporting the Design Decision on the Frame ½ Bulkhead\n238.\nThe Revised GA, dated 12 October 1994, is the earliest record of Lamma IV’s intended configuration. It was prepared before Cheoy Lee knew whether it would be awarded the Hongkong Electric contract and, at that stage, stood as the sole representation of the proposed vessel arrangement. On its face, it depicts an Access Opening at the Frame ½ Bulkhead in place of the watertight door shown at the corresponding position of Eastern District No.1.\n239.\nThe configuration shown on the Revised GA is consistent with Ken Lo’s evidence that, at the tender stage, he discussed the one-compartment flooding requirement with John Lim. At that time, it was apparent to both that the combined space of the Steering Gear Compartment and the Tank Room would be smaller than the Engine Room. Since the Engine Room satisfied the one-compartment flooding standard, the combined space would likewise do so. On that reasoning, it was considered unnecessary to make the Frame ½ Bulkhead watertight.\n240.\nThe submission made on behalf of the Next of Kin and the Marine Department that the Revised GA must be interpreted together with the Comments added seven months later, in May 1995, overlooks the chronological fact that those Comments did not exist when the Revised GA was produced. They could not have been contemplated by Naval-Consult or Cheoy Lee, who had not yet secured the contract with Hongkong Electric. It is illogical to interpret an October 1994 drawing by reference to requirements which were not in existence at the time\n.\n241.\nComment 2 on the requiring Blue Book compliance, inserted later by the Marine Department, cannot be read as converting an access opening into a watertight door. The Blue Book requirement that any access opening in a watertight bulkhead be fitted with an efficient closing appliance applies only where watertightness was already intended. It does not, by implication or inference, create such an intention where none existed on the face of the drawing.\n242.\nThe further submission that all the drawings must be read collectively to determine watertightness intention is likewise without merit. At the date of the Revised GA, no other detailed or structural drawings had been prepared or could reasonably have been anticipated since Cheoy Lee had yet to be awarded the tender. There was therefore no “jigsaw” of drawings to assemble, the Revised GA stood alone as the definitive representation of Lamma IV’s proposed bulkhead configuration in October 1994.\n243.\nJohn Lim’s position as director of Naval-Consult, the firm that designed Eastern District No. 1 with a watertight door at the corresponding location, gives particular significance to the substitution shown on Lamma IV’s Revised GA. Had there been no discussion with Ken Lo concerning the removal of the watertight door, there would have been no rational basis for departing from the basis ship design which incorporated such a door. The deliberate change of symbol therefore evidenced a design change reflecting the agreement reached between John Lim and Ken Lo. Unlike the subsequent drawings which contain admitted copying errors from Eastern District No. 1, the Revised GA represents the unmediated record of their design agreement without the contamination of miscommunication or inadvertence.\n244.\nI find the Revised GA to be the clearest and most reliable evidence of Lamma IV’s design intent. Prepared before the contract award and in the absence of other drawings capable of qualifying its meaning, it unequivocally shows an Access Opening, not a watertight door, at the Frame ½ Bulkhead. It therefore stands as the earliest and most reliable record of the intended configuration of the Frame ½ Bulkhead.\n245.\nOn the balance of probabilities, I further find that the Revised GA corroborates the evidence of Ken Lo that at the tender stage, a deliberate decision was made to omit a watertight door at the Frame ½ Bulkhead in light of the one-compartment flooding requirement. The depiction of an Access Opening at that location was not accidental or provisional but represented the design as first conceived in 1994.\n246.\nThe Preliminary Trim and Stability Booklet prepared by Naval-Consult before the construction of Lamma IV further reinforces this conclusion. John Lim, one of the vessel’s designers, confirmed that he participated in the damage stability calculations with KC Tan and that, in accordance with the one-compartment flooding standard, the Steering Gear Compartment and the Tank Room were intentionally treated as a single combined space for damage stability purposes. This approach placed the watertight subdivision forward at the Frame 4 Bulkhead rather than at the Frame ½ Bulkhead. The calculation basis reflected in the Preliminary Trim and Stability Booklet further corroborates Ken Lo’s account of his discussion with John Lim and further supports the conclusion that the omission of the watertight door at the Frame ½ Bulkhead was an intentional and justified design decision, consistent with the vessel’s one-compartment flooding standard.\n247.\nIt has been suggested that Naval-Consult’s treatment of the Steering Gear Compartment and the Tank Room as a single compartment in the Preliminary Trim and Stability Booklet reflected the correct application of the 0.1L Rule. However, at the COI,\n[82]\nwhen asked why these two aft spaces were combined in the preliminary calculations, John Lim made it plain that the purpose was to demonstrate compliance with the one-compartment flooding standard. He made no reference to the 0.1L Rule. His explanation was consistent throughout his evidence, whether in his January 2013 emails or his witness statement, showing that the approach adopted was based on the one-compartment flooding requirement rather than any application of the 0.1L Rule.\n248.\nAlthough both approaches would produce the same outcome of treating the two aft compartments as a single damaged space, John Lim’s evidence supports the conclusion that the designers were adapting\nEastern District No. 1\n’s two-compartment flooding arrangement to meet\nLamma IV\n’s less stringent one-compartment flooding requirement.\n249.\nTaken together, the Revised GA and the Preliminary Trim and Stability Booklet corroborate Ken Lo’s evidence and undermine the argument that his explanation for the removal of the watertight door at the Frame ½ Bulkhead was an afterthought fabricated to deflect from Cheoy Lee’s omission to install the watertight door.\nE5.5 Documentary Evidence Indicating or Suggesting that the Frame ½ Bulkhead Was to be Built Watertight\n250.\nThe Next of Kin and the Marine Department relied on the Tender Specification, the drawings marking the Frame ½ Bulkhead as watertight, the Wuzhou fax and Vanzon’s reply and John Lim’s email as evidence that Cheoy Lee knew from the outset that the bulkhead at Frame ½ was to be constructed as watertight. Hongkong Electric likewise relied on the Tender Specification and the Wuzhou fax, maintaining that the reference to five watertight bulkheads, together with the fax treating the Frame ½ Bulkhead as watertight, showed that Cheoy Lee knew from the outset that the Frame ½ Bulkhead should be watertight.\nTender Specification\n251.\nThe Next of Kin, the Marine Department, Hongkong Electric and the experts at the Inquest relied on the Tender Specification as evidence that Cheoy Lee had, at the tender stage, already formed an intention that the Frame ½ Bulkhead would be watertight. However, Ken Lo said the tender documents, including the Tender Specification, were prepared solely for tender purposes. They were preliminary materials used to set out the commercial and conceptual basis of the bid; they were not documents intended to fix the technical characteristics of the vessel. The detailed design process, during which regulatory requirements and stability criteria would be worked through and finalised, will only commence after Cheoy Lee secured the contract.\n252.\nKen Lo further explained that Hongkong Electric consistently left all naval architectural and regulatory matters to Cheoy Lee. Their concern was with operational issues such as speed, carriage capacity and general layout, not with watertight subdivision. On his evidence, this has been the long-standing practice between the parties.\n253.\nKen Lo also made clear that the Tender GA depicted only the layout and functional division of the vessel, not the watertight or structural characteristics in their final form. He explained that no vessel is built precisely in accordance with every element of a tender drawing, as departures are often required to satisfy regulatory requirements during detailed design. This is consistent with the wording of the Addendum, which stated that the vessel would be built “closely in accordance with” the Tender Specification and Tender GA, which anticipated that modifications would inevitably be made.\n254.\nAlthough the Tender Specification required that any amendments be agreed in writing before construction commenced, and Hongkong Electric’s Specifications further stated that no work was to begin until plans for the relevant parts had been approved, the evidence showed that neither requirement was followed in practice\n.\n255.\nKen Lo’s unchallenged evidence was that, for all seven earlier vessels built for Hongkong Electric, Cheoy Lee routinely submitted drawings, but no comments, queries or approvals were ever returned. Hongkong Electric did not scrutinise, discuss, or formally approve any drawings, notwithstanding the contractual clauses requiring written approval before commencement of work.\n256.\nCheoy Lee therefore adopted the established practice of waiting roughly two weeks for any response and, if none was received, proceeding on the basis that silence amounted to tacit acceptance. This consistent pattern of dealing, involving both the approval of drawings and the approval of amendments, reinforced the long-standing working relationship between the parties, under which Hongkong Electric left all technical and naval-architectural matters entirely to Cheoy Lee.\n257.\nMr Francis Cheng, Managing Director of Hongkong Electric, gave evidence that the company’s focus was on functional and operational requirements, such as passenger capacity, speed, engine power and safety appliances. He said that responsibility for detailed technical compliance and design matters was left to Cheoy Lee and its naval architects, and that Hongkong Electric relied on the vessel being licensed by the Marine Department. This long-standing practice showed that the contractual clause requiring agreement to amendments was not invoked in practice. It also supports the conclusion that Hongkong Electric did not involve itself in the detailed design of the watertight subdivision at the Frame ½ Bulkhead.\n258.\nViewed against this long-standing practice, the Tender Specification, Tender GA and Addendum cannot be taken as reflecting any concluded technical intention on the part of Cheoy Lee concerning the watertight status of the Frame ½ Bulkhead. The requirement of written approval of amendments or approval of drawings before work commenced was never implemented. Hongkong Electric did not review or approve drawings, did not intervene in technical matters and did not involve itself in questions of watertight subdivision at any stage. The fact that regulatory considerations were only addressed during detailed design stage confirmed that the tender materials did not govern\nLamma IV\n’s final subdivision arrangement.\nDrawings Showing the Frame ½ Bulkhead as Watertight\n259.\nReliance was also placed on those drawings showing the bulkhead at Frame ½ as watertight. It was submitted by the Next of Kin and the Marine Department that these drawings demonstrated Cheoy Lee’s knowledge and intention that the Frame ½ Bulkhead should be constructed as a watertight bulkhead.\n260.\nIn light of my finding that Ken Lo had discussed with John Lim to make the Frame ½ Bulkhead non-watertight with an Access Opening, initially to meet the one-compartment flooding requirement and later to satisfy the 0.1L Rule, I accept that the references in the Sections and Bulkheads, Profile and Deck and Shell Expansion drawings describing the Frame ½ Bulkhead as watertight were drafting errors. John Lim’s evidence at the COI was that these notations were mistakes made by his draughtsman which went unnoticed and were therefore left uncorrected.\n[83]\nHaving accepted Ken Lo’s evidence and found him to be a credible witness, weight should likewise be given to John Lim’s explanation of those inaccuracies, notwithstanding his absence from the Inquest.\n261.\nDespite finding that the notations describing the Frame ½ Bulkhead as watertight were drafting errors, I will address the submissions of the Next of Kin and the Marine Department that the use of the term “Access Opening” on the Lamma IV drawings, in place of the “WT Door” shown on Eastern District No. 1, can be explained by a difference in drafting style.\n262.\nIn support of this submission, the Next of Kin and the Marine Department relied on the absence of any international standard or guideline requiring a watertight door to be expressly identified.\n263.\nThat reliance, while it may at first sight appear logical, overlooks the practical reality established by the expert evidence. The experts were clear that naval architects would unlikely introduce uncertainty or ambiguity into an element as fundamental as watertightness, particularly when working from an established template in which the presence of a watertight door had been clearly and deliberately identified.\n264.\nIn my view, it is implausible that a competent draughtsman would elect to replace an explicit “WT Door” notation with the less precise term “Access Opening” merely as a matter of personal drafting preference, if the watertight integrity of that bulkhead were intended to remain unchanged.\n265.\nThe draughtsman responsible for the Lamma IV drawings was not preparing an original design from scratch but adapting an established template in which a watertight door at that location was clearly identified. In those circumstances, there would have been no rational basis for discarding a specific and well-understood notation and substituting it with a more ambiguous term, while expecting the shipbuilder to infer the continued presence of a watertight door by cross-referencing other drawings and the regulatory material like the Blue Book.\n266.\nThe argument that the change in terminology can be attributed merely to drafting style would carry greater weight if the drawing had been prepared from scratch, rather than adapted from a template in which the presence of a watertight door was clearly marked.\n267.\nThis is particularly so given that Naval-Consult was a Singapore firm, and that the naval architects involved were based in Singapore rather than Hong Kong. It is unlikely that a draughtsman operating in that context would assume familiarity on the part of the shipbuilder with Hong Kong-specific regulations such as the Blue Book or expect the shipbuilder to piece together the intended watertight status of a bulkhead by putting together multiple drawings and regulatory requirements. Such an approach would add unnecessary and uncertainty to the construction process.\n268.\nThe far more straightforward course, had a watertight door been intended at the Frame ½ Bulkhead, would have been simply to replicate the existing “WT Door” annotation carried over from the basis ship. This is consistent with the expert evidence. Dr Armstrong, Dr Renilson, Mr Anthony York and Mr Simon Burthem were unanimous that it would make no sense to remove the “WT Door” designation at the Frame ½ Bulkhead and replace it with an “Access Opening” if the bulkhead were intended to be watertight, and that, where watertightness was intended, the presence of a watertight door would ordinarily be explicitly specified.\n269.\nThe reliance placed on paragraph 12(v) of the Blue Book, which requires an access opening in a watertight bulkhead to be fitted with an efficient closing appliance, overlooks the evidence of KC Tan\n,\nwho said he was unfamiliar with Hong Kong’s regulatory requirements, including the Blue Book and that he did not know who had inserted the “W.T. BHD” notations on the drawings.\n270.\nIn the circumstances, and independently of my finding that the drawings showing the Frame ½ Bulkhead as watertight were mistaken, I do not accept that the marking of an “Access Opening” at the Frame ½ Bulkhead in the Sections and Bulkheads drawing was merely a different drafting style. Nor do I accept that the draughtsman intended the watertight status of the Frame ½ Bulkhead to be inferred by reading all the drawings together with the Blue Book.\nWuzhou Fax and Vanzon’s Reply\n271.\nThe Next of Kin and the Marine Department placed considerable reliance on the fax exchange between Wuzhou and Vanzon as evidence that a watertight door was intended at the Frame ½ Bulkhead. Hongkong Electric likewise relied on the fax exchange to demonstrate Cheoy Lee’s intention at the outset was to fit a watertight door at the Frame ½ Bulkhead.\n272.\nDuring the Inquest, Mr Cheng Tak Ming, Vanzon’s proprietor, emphasised that Vanzon’s response was focused on the three questions raised by Wuzhou and was directed to the construction schedule, which was already behind time. He stated that he did not examine, or intend to confirm, the necessity for a watertight door as such matters lay outside his knowledge or expertise. This is consistent with Mr Simon Burthem’s analysis where he observed in his report that, read carefully, Vanzon’s response does not expressly confirm any intent to fit a watertight door, nor does the exchange as a whole preclude the possibility of a later change in Cheoy Lee’s intention.\n[84]\nI am satisfied that the reply from Vanzon cannot be construed as confirming or endorsing any requirement for a watertight door at the Frame ½ Bulkhead.\n273.\nHaving accepted John Lim’s evidence that the structural drawings were incorrectly annotated as a result of drafting errors made by Naval-Consult’s draughtsman, it follows that Wuzhou’s understanding that the Frame ½ Bulkhead was watertight arose from that mistake. I am satisfied that the reference in Wuzhou’s fax to a watertight door at the Frame ½ Bulkhead was an extension of the erroneous annotation.\n274.\nThat Wuzhou’s understanding of the watertightness of the Frame ½ Bulkhead was not shared by Cheoy Lee, nor did it represent Cheoy Lee’s intent or knowledge, is supported by the drawings prepared by Cheoy Lee’s draughtsman, Mr Kwong Kai Kee (“KK Kwong”). The Hydraulic Steering Gear Piping System drawing (“Hydraulic drawing”), dated 10 October 1995, showed an Access Opening at the Frame ½ Bulkhead. Similarly, the Safety Plan, produced on 31 October 1996, similarly showed an opening rather than a watertight door. Both drawings were prepared after the hull had been returned to Hong Kong and they reflected how Cheoy Lee understood and presented the vessel’s configuration to the Marine Department.\n275.\nHenry Lo Yen Yang, a director of Cheoy Lee who oversaw hull construction and fitting out in Hong Kong, confirmed at the Inquest that no preparatory work for a watertight door was undertaken and no door of the correct specification was ever supplied or ordered for the access opening at the Frame ½ Bulkhead.\n276.\nWhen considered alongside the Revised GA, the Preliminary Trim and Stability Booklet and the two drawings prepared by KK Kwong after the hull had been returned to Cheoy Lee, the Wuzhou fax and Vanzon’s reply carry little weight as evidence of watertight intent. Instead, the Revised GA, the Preliminary Trim and Stability Booklet, the Hydraulic drawing and the Safety Plan are far more reliable indicators of Cheoy Lee’s actual understanding of the watertight status of the Frame ½ Bulkhead than a brief construction-stage exchange between Wuzhou and Vanzon.\nDamage Stability Calculations\n277.\nThe Next of Kin submitted that Mr Cheung Fook Chor was right to treat the Frame ½ Bulkhead as watertight in his 1996 Damage Stability Calculations, and that his only error was failing to apply the 0.1L Rule. That submission is contrary to the findings of the COI which held that Mr Cheung made two errors: first, in treating the Frame ½ Bulkhead as watertight, and second, failing to apply the 0.1L Rule. Mr Cheung accepted at the COI that he did not apply the 0.1L Rule, that he had treated the Steering Gear Compartment as separate from the Tank Room and that he found the drawings unclear on the watertight boundary at the Frame ½ Bulkhead.\n[85]\n278.\nThe 1998 and 2005 Damage Stability Calculations were derived from the 1996 version and therefore carried forward the same mistaken assumptions. The COI described the 1996 calculations as a “template” of error, and the later calculations replicated those errors. Mr Cheung’s evidence shows that he treated the Frame ½ Bulkhead as watertight because that is how it appeared from the drawings. It did not reflect any instruction or design intention. He accepted that he relied on Mr Leizaola or the Marine Department to correct him if he had misinterpreted the drawings.\n279.\nIn these circumstances, neither the 1996 Calculations nor the later versions derived from it can be relied upon as evidence of design intent. They were based on a misreading of drawings that Mr Cheung himself found confusing.\nJohn Lim’s emails\n280.\nConsiderable emphasis was placed by the Next of Kin and the Marine Department on John Lim’s first email reply, in which he stated that\nLamma IV\nwas designed to have five watertight bulkheads and that any access opening was required to be fitted with a watertight door. That assertion necessarily implied that the Frame ½ Bulkhead was intended to be watertight, in the same manner as the corresponding bulkhead on\nEastern District No. 1\n. If that were correct, there would have been no reason for John Lim, on 12 October 1994, to replace the watertight door shown on the\nEastern District No. 1\ndrawing with an Access Opening at the Frame ½ Bulkhead on the Revised GA of\nLamma IV\n. The replacement of a watertight door with a non-watertight access opening is inconsistent with an intention to treat the Frame ½ Bulkhead as watertight. On the contrary, it supports the conclusion that\nLamma IV\nwas not designed with five watertight bulkheads, and that the Frame ½ Bulkhead was never intended to form part of the vessel’s watertight subdivision.\n281.\nIn assessing the apparent inconsistency between John Lim’s two emails of January 2013, I accept the explanation that his initial response was the result of incomplete recollection. At that time, more than 18 years had elapsed since the design discussions in 1994, John Lim did not have before him the Revised GA or the Preliminary Trim and Stability Booklet, which treated the Steering Gear Compartment and the Tank Room as a single compartment for the purpose of damage stability calculations. The email enquiry from the Marine Department referred to the Tender Specification and to drawings depicting the Frame ½ Bulkhead as watertight, without drawing attention to the Preliminary Trim and Stability Booklet or the Revised GA of 12 October 1994, although it appears that the Department did not have the Preliminary Trim and Stability Booklet at that stage. Framed in that manner, the question may have unintentionally led John Lim to respond on the basis of general assumptions derived from the Tender Specification rather than on the specific modifications that had been adopted.\n282.\nBy contrast, his subsequent email of 18 January 2013 reflected the position set out in the Preliminary Trim and Stability Booklet namely\n, Lamma IV\nwas designed as a one-compartment flooding vessel and that the Frame ½ Bulkhead was not a watertight subdivision. This is consistent with his evidence at the COI, where he denied that his clarification was prompted by any external influence and maintained that it was based on the documentation available to him.\n[86]\nIn these circumstances, the inconsistency in his two emails can be understood because of lapse of time and the absence of reference to the relevant design documents in the initial enquiry. It does not undermine his credibility; rather, the clarification supports the conclusion that his later position more accurately reflects the design intent in 1994.\n283.\nAccordingly, I find that John Lim’s initial email does not represent the true design intention for Lamma IV but was more likely a generalised or assumed statement made without reference to the specific design modifications being implemented at that time.\nE5.6 Expert Opinions\n284.\nThe experts who concluded that the Frame ½ Bulkhead was intended to be watertight did not dispute that\nLamma IV\n, as built, satisfied the one-compartment flooding standard. Their views were directed instead to whether that bulkhead was intended to be watertight at the design stage. Those views were, however, reached without access to several pieces of information which are material to that question. With the exception of Mr Robert Vart, none of the experts had sight of the Hydraulic drawing or the Safety Plan, which show an access opening at the Frame ½ Bulkhead without any watertight door. Nor did they have the Preliminary Trim and Stability Booklet prepared between late 1994 and early May 1995, or John Lim’s evidence explaining the rationale on which that booklet was based, namely that\nLamma IV\nwas designed as a one-compartment flooding vessel. These matters may, or may not, have influenced their assessment of the intended watertightness of the bulkhead at Frame ½, but they were not available to them.\n285.\nThe expert opinions were also formed without appreciation of the circumstances in which the Revised GA drawing came to be produced in October 1994, before Cheoy Lee had been awarded the contract by Hongkong Electric. That context explains why the Revised GA holds significant weight as it reflects the designers‘ preliminary intent before later refinement for regulatory approval. Nor did the experts take into account the established commercial relationship and practice between Cheoy Lee and Hongkong Electric in the 1990s, under which the latter’s concern was confined to operational matters while all technical and structural issues, including watertight subdivision, were left to Cheoy Lee, provided that the Marine Department’s requirements were met. In those circumstances, departures from the Tender Specification were common and formed part of the normal design development process rather than exceptional deviations.\n286.\nFurthermore, experts such as Mr Simon Burthem, Mr Robert Vart and Mr Anthony York were unaware that John Lim had admitted at the COI that his draughtsman had mistakenly marked the Frame ½ Bulkhead as “W.T. BHD” on the Profile and Deck, the Section B-B of the Sections and Bulkheads and the Shell Expansion drawings. Although Dr Renilson was aware of John Lim’s explanation, he rejected it as unlikely. None of the experts, however, were aware of the reasoning of Ken Lo and John Lim at the time for omitting the watertight door, the correctness of which was subsequently confirmed by the Preliminary Trim and Stability Booklet. Their conclusions were therefore reached without the benefit of the key documentary and other evidence that directly explained the designers’ intentions.\n287.\nWhile Mr Burthem was of the opinion that, on balance, the Frame ½ Bulkhead was intended to be watertight at the drawing stage, he acknowledged the ambiguity created by conflicting drawings.\n288.\nIn the case of Dr Renilson and Mr Robert Vart, I find their opinions were influenced by hindsight. Both assessed the question of design intent through the lens of the accident’s outcome namely, two-compartment flooding and retrospectively criticised the removal of the watertight door as having made\nLamma IV\nless safe. Such reasoning, while understandable from a safety perspective, does not fairly reflect the regulatory requirement or the design standards that existed in 1994 and 1995, when the one-compartment flooding standard governed Hong Kong’s passenger vessels in sheltered water.\n289.\nNo expert has suggested that the watertight subdivision on\nLamma IV\nwas wrongly located or that the vessel, as built, failed to meet the one-compartment flooding standard. Although Dr Renilson and Mr Robert Vart considered\nLamma IV\nto be less safe, neither they nor any other expert, including Dr Armstrong and Dr Peter Cheng, indicated that the vessel fell short of that requirement. Their evidence was in fact to the contrary, that\nLamma IV\n, in its constructed form, complied with the one-compartment flooding standard.\n290.\nAccordingly, I attach limited weight to the experts’ conclusions on the design intent of the bulkhead at Frame ½.\nE5.7 Findings on Issue 1\n291.\nOn the balance of probabilities, I find the provenance of the Revised GA, the Preliminary Trim and Stability Booklet, the Safety Plan, the Hydraulic drawing and the evidence of Ken Lo and John Lim, provide the clearest and most reliable account of the intended configuration of the Frame ½ Bulkhead.\n292.\nI further find that the design intent of Lamma IV was for the aft peak watertight subdivision to be located at the Frame 4 Bulkhead. The omission of the watertight door at the Frame ½ Bulkhead was a deliberate design decision taken to give effect to that intent, having regard to the understanding and application of the one-compartment flooding standard and the 0.1L Rule.\n293.\nOn Issue 1, I find that the evidence establishes, on the balance of probabilities, that Cheoy Lee did not know from the outset that the Frame ½ Bulkhead was to be built watertight. The decision that this bulkhead would be non-watertight and that no watertight door would be fitted, was a conscious design choice rather than an omission or oversight.\nF. Responsibility for Damage Stability Calculations (Issue 2)\n294.\nThe second issue concerns the responsibility for the Damage Stability Calculations, specifically whether Mr Cheung Fook Chor who was responsible for making the 1996 and 1998 Damage Stability Booklets shifted the blame for the mistakes to Mr Jon Leizaola.\nF1. Evidence of Mr Cheung Fook Chor\n295.\nThe preparation of the 1996 Damage Stability Calculations by Mr Cheung Fook Chor has already been dealt with when addressing the issue of design intent above. The evidence shows that the approach adopted in 1996, specifically, the treatment of the bulkhead between the Steering Gear Compartment and the Tank Room as watertight, and the failure to apply the 0.1L Rule, was perpetuated unchanged in subsequent years. The 1998 and 2005 Damage Stability Calculations prepared for\nLamma IV\nessentially replicated the methodology, input data, and key assumptions of the 1996 calculations.\n296.\nIn his witness statements,\n[87]\nMr Cheung Fook Chor stated that he acted under instructions from his supervisor, Mr Leizaola, to whom he handed all Damage Stability Booklets for checking and onward submission to the Marine Department. Mr Cheung Fook Chor did not undertake site visits or independently consult all the relevant drawings, instead working from drawings given to him by Mr Leizaola and left it to the latter to detect any errors or ambiguities.\n297.\nDuring the COI,\n[88]\nMr Cheung Fook Chor accepted that the Sections and Bulkheads drawing was confusing. However, he stated that he would in any event have interpreted the drawing as showing a watertight bulkhead at Frame ½ and would have proceeded with his calculations on that basis, pending any further direction from his superior or the Marine Department. He further acknowledged that the Steering Gear Compartment was clearly a short compartment and that it was his own omission and negligence not to apply the 0.1L Rule, as he had forgotten the requirement when performing the calculation.\nF2. Evidence concerning Mr Jon Leizaola\n298.\nMr Jon Leizaola, a naval engineer employed by Cheoy Lee from 1993 to 1996, provided a witness statement\n[89]\noutlining his limited role in the\nLamma IV\nproject. Mr Leizaola confirmed that he was not an accredited vessel designer and had no design, supervisory or inspection responsibilities for\nLamma IV\n’s construction or design drawings. His responsibilities at Cheoy Lee were largely clerical, preparing draft letters and compiling documents for submission to the Marine Department, with prior approvals from Ken Lo or another director and calculating ship costs. Mr Leizaola said he did not participate in inspection or approval of the delivered hull of\nLamma IV\n. He stated that decisions on the submission of plans, preparation of Damage Stability Booklets and related technical matters were handled by Mr Cheung Fook Chor and the directors. Mr Leizaola claimed he had no knowledge of the installation of any watertight door at the Frame ½ Bulkhead, or which drawings were consulted during construction. He described Cheoy Lee as a family business controlled by seven brothers, with Ken Lo being chiefly responsible for technical and engineering decisions, contract negotiation, and the approval of outgoing correspondence.\n299.\nKen Lo gave evidence that he personally hired Mr Leizaola as Assistant Engineering Manager, approximately six months before Mr Cheung Chuen Yau left Cheoy Lee. Mr Leizaola held a degree in naval architecture from England. He assumed Mr Cheung Chuen Yau’s responsibilities when the latter left Cheoy Lee. Ken Lo stated that Mr Leizaola understood naval architectural drawings and had the professional knowledge necessary to review stability calculations. He disagreed that Mr Leizaola’s role at Cheoy Lee was purely administrative, pointing to the fact that Mr Leizaola had taken over the responsibilities of Mr Cheung Chuen Yau, and that Mr Leizaola later became the general manager of a reputable shipyard in Spain after leaving Cheoy Lee.\nF3. Cheoy Lee’s System of Vetting and Reviewing Damage Stability Calculations\n300.\nMr Cheung Chuen Yau stated that Cheoy Lee’s Engineering Department was responsible for work on new vessels, including the review of drawings and stability calculations. He confirmed that damage stability calculations were undertaken by Mr Cheung Fook Chor, who worked in the Design Section, and said that the colleagues working with him did not have professional training. Mr Cheung Chuen Yau returned to Cheoy Lee in about 1997 and Mr Leizaola left in 1998. He relied on Mr Cheung Fook Chor to carry out the calculations and regarded his own role as limited to checking whether the results showed any submersion of the margin line before forwarding them to the Marine Department.\n301.\nIn relation to the 1998 Damage Stability Calculations necessitated by the addition of lead ballast, Mr Cheung Chuen Yau confirmed that he instructed Mr Cheung Fook Chor to prepare the calculation and that the latter simply adopted the basis of the 1996 calculations. He admitted that he did not verify whether the underlying assumptions of the earlier calculations were correct. He did not notice that the Steering Gear Compartment and the Tank Room had been treated as separate spaces, nor that the 0.1L Rule had not been applied. He said that because the calculations were first sent to Hongkong Electric and no amendments were requested, he assumed it was correct and forwarded that information to the Marine Department. He said that Mr Cheung Fook Chor had been negligent in classifying the compartments incorrectly and acknowledged that he himself did not detect the error, despite being responsible for ensuring that the stability calculations were correct before submission.\n302.\nThe 2005 Damage Stability Booklet was prepared by Cheoy Lee’s Mr Kwok Hing Yin using the AutoHydro software programme to generate damage stability calculations. Although the booklet stated that it had been checked by Mr Cheung Fook Chor, Mr Cheung Chuen Yau said that no such review in fact took place, as neither he nor Mr Cheung Fook Chor knew how to use the software. He trusted the AutoHydro software even though he did not know how to use it. The 2005 calculation was therefore not independently verified before submission to the Marine Department.\nF4. Submissions of the Parties\n303.\nHKKF did not make any submissions on this issue. Hongkong Electric maintained a neutral position, noting that neither Mr Cheung Fook Chor nor Mr Leizaola attended the Inquest, making it difficult to formulate any views on the matter.\nF4.1 Next of Kin\n304.\nThe Next of Kin emphasised that Mr Cheung Fook Chor indicated to the COI that even if he had access to the drawings during the calculations, he would have continued to treat the bulkhead at Frame ½ as watertight, albeit he would have sought a decision from his superior or from the Marine Department. Next of Kin say this is evidence that Mr Cheung Fook Chor put the responsibility for the calculations with Mr Leizaola.\n305.\nThe Next of Kin further said it would have been unreasonable for Mr Cheung Fook Chor to expect Mr Leizaola to review his calculations, given the then practice at Cheoy Lee where superiors did not routinely vet the calculations but only reviewed the results. They also highlighted the fact that Mr Leizaola lacked the technical expertise to perform the necessary calculations or to operate the hydrostatic software and that his role was administrative. In contrast, Mr Cheung Fook Chor possessed direct familiarity with the vessel, having conducted the inclining experiment, while Mr Leizaola had never boarded\nLamma IV\n. Therefore, the Next of Kin submitted that Mr Cheung Fook Chor shifted responsibility for his mistakes onto Mr Leizaola.\nF4.2 Cheoy Lee\n306.\nCheoy Lee submitted that Mr Leizaola’s claim that he carried out purely administrative work, and that responsibility for checking plans rested with Mr Cheung Fook Chor, was not credible. It was said that Mr Leizaola took over the position and duties of Mr Cheung Cheun Yau after the latter left and that, given his experience and his role as head of the Engineering Department, he was expected to check the calculations and work produced by Mr Cheung Fook Chor.\n307.\nCheoy Lee accepted the COI’s finding that the calculation errors made by Mr Cheung Fook Chor in 1996 created a template of error, which led to the same mistakes being repeated in the 1998 and 2005 calculations. Cheoy Lee also drew attention to the fact that the Marine Department approved those calculations without realising the errors made in the 1996 calculations.\n308.\nIn light of the findings in the COI report, Cheoy Lee said that it had since implemented internal controls to improve the checking of stability calculations. These measures included ensuring that the employee responsible for preparing stability calculations had access to the full set of plans for review and cross-checking, requiring the head of the Design Department to cross-check stability calculations against the underlying plans, and carrying out further cross-checks against the actual construction of the vessel through site visits.\nF4.3 Marine Department\n309.\nThe Marine Department submitted that Mr Leizaola downplayed his role at Cheoy Lee by characterising his position as purely administrative, thereby distancing himself from responsibility. It argued that it is unlikely Cheoy Lee would have appointed someone without relevant qualifications to its Engineering Department or to assume duties previously held by an experienced employee such as Mr Cheung Chuen Yau.\n310.\nCounsel for the Marine Department noted that neither Mr Cheung Fook Chor nor Mr Leizaola gave evidence at the Inquest, resulting in conflicting accounts of their respective responsibilities. In these circumstances, they submitted that it cannot be definitively concluded that Mr Cheung Fook Chor shifted blame to Mr Leizaola. Rather, any uncertainty may be due to the lack of clear job responsibilities within Cheoy Lee at the time.\nF5. Analysis of Evidence\n311.\nFor the purposes of Issue 2, it is not necessary for this Court to determine whether Mr Cheung Fook Chor treating the Steering Gear Compartment and the Tank Room as watertight was ultimately correct or incorrect. What is relevant is Mr Cheung Fook Chor’s evidence that he was uncertain as to the watertight status of the Frame ½ Bulkhead, that he found the drawings confusing, and that he left the matter to Mr Leizaola or the Marine Department to resolve if he was wrong. Whether he was in fact right or mistaken technically does not alter his state of mind at the time. It was this uncertainty, and his reliance on others to determine the matter rather than forming his own view, which gave rise to Issue 2.\n312.\nGiven Mr Leizaola’s qualifications, his position within Cheoy Lee, and the evidence of Mr Cheung Chuen Yau, who was both his predecessor and, upon his return to Cheoy Lee, his successor, as to the responsibilities ordinarily undertaken by an Engineering Manager, I do not accept that Mr Leizaola’s duties were confined to administrative work. I agree with the Marine Department that Mr Leizaola sought to minimise his involvement in order to distance himself from responsibility for matters arising in this Inquest. That conclusion is reinforced by the evidence of Mr Cheung Fook Chor that, in 1995, Mr Leizaola instructed him to prepare the Damage Stability Booklet for\nLamma IV\nand once prepared, Mr Cheung handed the booklet to Mr Leizaola for submission to the Marine Department.\n313.\nThe Design Department at Cheoy Lee was under the Engineering Department without its own supervisor, and Mr Leizaola was the Engineering Manager. Mr Cheung Fook Chor indicated at the COI that it was Mr Leizaola who provided him with the drawings required for the preparation of the damage stability calculations. Taken together, this evidence shows that Mr Leizaola’s role went well beyond administration and was consistent with a position of authority involving the giving of instructions, the delegation of work and oversight of technical matters.\n314.\nThe assumption that the Frame ½ Bulkhead was watertight was first introduced in the 1996 Damage Stability Calculations and remained uncorrected in later submissions. This assumption went undetected by Mr Leizaola in 1996, Mr Cheung Chuen Yau in 1998 and 2005 and the Marine Department across all those years.\nF6. Findings on Issue 2\n315.\nOn the balance of probabilities, I find that Mr Cheung Fook Chor did not consciously or deliberately seek to shift responsibility to Mr Leizaola. Rather, his conduct is consistent with the absence of clear supervisory structures and defined responsibility within Cheoy Lee at the material time.\n316.\nThe evidence shows that there was no established system for technical verification or cross-checking of calculations. In those circumstances, it appears that Mr Cheung Fook Chor proceeded on the assumption that his responsibility ended once he had completed the work he was instructed to do, and that any error would be identified by a supervisor or by the Marine Department. Having worked for many years within an environment where responsibility boundaries were not clearly defined, he did not turn his mind to whether those assumptions were well-founded or whether any checking would in fact take place.\n317.\nAny apparent shifting of responsibility was therefore only superficial and did not arise from an intention to deflect responsibility or avoid accountability, but from a systemic lack of oversight and an ingrained reliance on unverified external review.\nG. Port Hull Plating of\nSea Smooth\n(Issue 3)\n318.\nThe third issue identified by the Court of Appeal was whether Sea Smooth had its port bow plating in place at the time of the collision and, if so, what impact this had on the circumstances of the collision. This plating was an L-shaped stainless-steel plate (“Bow Plate”) fitted externally to the port bow of Sea Smooth (“Port Bow Plate”). The Court of Appeal observed that there was credible evidence suggesting that the Port Bow Plate may have remained attached to Sea Smooth at the time of the collision which could explain its ability to penetrate the aluminium hull of Lamma IV causing the extensive breach that followed. The issues to be determined are whether the Port Bow Plate was in fact present, if so, whether it had any material effect on the collision and sinking of\nLamma IV\n.\n319.\nIn addition, the Court of Appeal considered this issue also raises regulatory questions about its design and installation. Specifically, whether Cheoy Lee had obtained the requisite approval from the Marine Department for the installation of the Bow Plates, what standards were applicable at the time, whether compliance with those standards was achieved, and what approval or certification processes were in place. It is also necessary to consider whether the Marine Department inspected or surveyed this aspect of Sea Smooth prior to the collision and, if the Bow Plates had been fitted without approval, whether this was detected and what steps, if any, were taken in consequence.\nG2. Factual and Expert Evidence concerning the Port Bow Plate\n320.\nSea Smooth\nis a twin-hulled catamaran built by Cheoy Lee between 2002 and 2003. The 1995 Instructions were the applicable instructions. The general arrangement drawing of\nSea Smooth\n, approved by the Marine Department on 2 November 2002, did not show the Bow Plates. These plates, made of 2 mm thick stainless steel and fastened externally to each bow by screws, appeared in the “as fitted” general arrangement drawing prepared for the Inclining Experiment and Stability Calculations. Cheoy Lee did not at any stage inform the Marine Department of their addition.\n321.\nMartin Lo King Ying (“Martin Lo”), director of Cheoy Lee in charge of repair and maintenance of HKKF vessels, gave evidence that the Bow Plates of\nSea Smooth\nwere non-structural, decorative items intended for aesthetics and protection from minor impacts, with no bearing on the vessel's navigational safety. He confirmed that the Port Bow Plate was found to be missing during maintenance and hull cleaning of\nSea Smooth\non 25 September 2012, a discovery he stated was reported to him by both his subordinate Mr Law Ping Sang and a HKKF engineer.\n322.\nMartin Lo explained that as the Port Bow Plate's absence posed no urgent safety issue, it was decided to defer its replacement until the vessel's next scheduled annual maintenance. The invoice issued by Cheoy Lee to Islands Ferry Company Ltd\n[90]\nmade no reference to the replacement of the Port Bow Plate and a work order would only have been created upon its installation.\n323.\nDr. Armstrong’s evidence at the COI was that the presence of the Bow Plates on the stem of\nSea Smooth\ndid not materially affect the outcome of the collision with\nLamma IV\n. Dr. Armstrong provided detailed analysis showing that, due to\nSea Smooth\n’s trim and the angle of impact, the initial collision forces acted above the level of the Bow Plates. Most of the destructive energy was therefore transmitted through the vessel’s robust stem structure, not the 2mm plates. Dr. Armstrong concluded that the Port Bow Plate, if it contacted\nLamma IV\nat all, did so only after the principal hull gash had already been inflicted and was likely sheared off or destroyed during the early moments of the impact. He considered the Port Bow Plate played little or no part in the collision or sinking of\nLamma IV\n.\n324.\nDr. Cheng Yuk Ki produced a forensic report following his examination of both Sea Smooth and Lamma IV after the collision.\n[91]\nThat report also dealt with other matters, including the seating arrangements on Lamma IV, the drafts of Sea Smooth and the collection of forensic trace evidence. The part that is relevant to this Inquest is his finding that a large fragment of fibreboard, with deep blue paint at the top and brown paint at the bottom, was recovered from the gash in the hull of Lamma IV. This fragment originated from the bow of the port hull of Sea Smooth. Close examination of the fibreboard fragments revealed an imprint whose size and shape partially matched the Bow Plate on the starboard hull of Sea Smooth, but no metal plate was recovered from within the hull of Lamma IV.\n325.\nAt the inquest, Dr. Cheng confirmed that the Port Bow Plate was not present at the time of the collision. His opinion was based on the absence of the plate at the damaged breach, the fact that only fibreboard fragments were found embedded in the hull of Lamma IV and a police note recording that the Port Bow Plate had been dismantled for maintenance before the accident. Dr. Cheng further explained that the catastrophic damage to Lamma IV was caused not by any Bow Plates but by the structural elements of Sea Smooth’s port hull itself, first, the bow piercing the hull, and then the broken keel acting like a can-opener tearing open the Tank Room. In his opinion, the absence of the Port Bow Plate meant it played no role in the collision, and the fatal flooding of Lamma IV was directly attributable to the impact and raking action of the bow and keel of Sea Smooth’s port hull below the waterline. He added that even if the Port Bow Plate had been in place at the time of the collision, its effect on the impact would have been negligible.\n326.\nDr. Renilson and Mr Simon Burthem agreed that the principal cause of the extensive hull breach was the structural raking action of Sea Smooth’s port bow and broken keel. They considered that the Port Bow Plate, even if fitted, would not have materially changed the mechanics of the collision or the outcome.\n327.\nMr Robert Vart similarly emphasised that the decisive damage to Lamma IV was inflicted by the bow and keel of Sea Smooth. He noted that the thin stainless steel plate, fastened externally by screws, was designed only as a guard against floating debris and would have provided negligible resistance when compared with the forces of the collision. He agreed that the presence or absence of the Port Bow Plate had no significant effect on the penetration of Sea Smooth’s bow into Lamma IV or the subsequent rapid flooding.\nG2. Submissions of the Parties\n328.\nAll parties accepted that the Port Bow Plate was not fitted on\nSea Smooth\nat the time of the collision and its presence or absence played no part in the collision or the subsequent sinking of\nLamma IV.\nThe only point of divergence was whether the installation of the Bow Plates ought to have been reported to and approved by the Marine Department. HKKF left the question of approval to Cheoy Lee and Hongkong Electric adopted a neutral position.\nG2.1 Next of Kin\n329.\nThe Next of Kin submitted that Cheoy Lee breached the regulatory requirements by installing the Bow Plates without obtaining the Marine Department’s prior approval. Relying on paragraph 4.6 of the 1995 Instructions, they argued that any alteration, however minor, required the Director’s consent, and that Cheoy Lee had no discretion to decide otherwise. They cited Mr Simon Burthem’s evidence that screwing the Bow Plates into the fibreglass hull could compromise watertight integrity and should therefore have been reported.\n330.\nThey rejected Cheoy Lee’s claim that the alteration was non-structural and the opinion of Mr Robert Vart that it was “almost cosmetic,” arguing that the obligation to notify lay with Cheoy Lee.\nG2.2 Cheoy Lee\n331.\nCheoy Lee’s position was that the installation of the Bow Plates did not require prior approval from the Marine Department. The plate, being only 2mm thick and intended as protective shield against debris, was neither structural nor part of the vessel’s “equipment” within the meaning of the 1995 Instructions.\nG2.3 Marine Department\n332.\nThe Marine Department submitted that Cheoy Lee ought to have reported the installation of the Bow Plates although its omission did not amount to a breach of any specific regulatory provision, because the Department, not the builder, was the proper authority to determine whether a modification might affect safety or seaworthiness. While the omission was a procedural oversight, it was mitigated by the fact that the Bow Plates appeared to have been in place for a long period and would not reasonably have been considered by a surveyor as an unauthorised addition.\nG3. Analysis of Evidence\n333.\nThat the Port Bow Plate was not present at the time of the collision is supported by Dr. Cheng Yuk Ki’s examination of the recovered fibreboard fragments from the gash in Lamma IV where no plate was recovered, and by the police note that the plate had been dismantled for maintenance before the accident. It is also consistent with the expert opinions of Dr. Armstrong, Dr. Renilson, Mr Simon Burthem and Mr Robert Vart, all of whom agreed that, even if the plate had been in place, it would have had no material impact on how the collision occurred or the damage inflicted. The fatal breach to Lamma IV was caused by the penetration of Sea Smooth’s port bow and the raking action of the broken keel, rather than by any bow plate. I further find that the Bow Plates were non-structural addition, designed to guard against floating debris. On the evidence, I am satisfied that the presence or absence of the Port Bow Plate had no bearing on the rapid sinking of Lamma IV.\n334.\nTurning to the regulatory question of notification and approval, while the Bow Plates were thin, cosmetic and installed as debris protection, they were nonetheless attached to the bow with screws. Mr Simon Burthem’s view was that, whilst the Marine Department would likely have approved their addition, the process of consultation itself was essential. On the other hand, Mr Robert Vart considered the plates to be cosmetic addition, and would not fault Cheoy Lee for not reporting them, but nonetheless conceded that, even if the risk to watertightness was slight, this was ultimately for the Marine Department to judge.\n335.\nParagraph 4.6 of the 1995 Instructions requires that after any initial or periodic survey, both the vessel and its equipment must be maintained in accordance with the Instructions, ensuring that the vessel remains fully fit for its intended services. It further states that no alteration to the vessel is permitted without the Director’s prior approval. In the present case, Mr Chan See Yin, agreed that the addition of the Bow Plates did not alter the condition of\nSea Smooth\nnor did it constitute equipment as contemplated by the Instructions. Therefore, the prohibition on unauthorised changes in paragraph 4.6 did not apply to the installation of the Bow Plates.\n336.\nAlthough the 2mm Bow Plate in question was cosmetic in function and unlikely to affect the vessel’s structural or operational safety, its installation involved drilling screws into the hull and therefore carried a potential, albeit small, risk to the vessel’s watertight integrity, as noted by Mr Simon Burthem. While experts differed in their assessment of the significance of that risk and the need for notification, the existence of any safety risk places the responsibility for determining whether an alteration is material, and thus requires approval, with the Marine Department rather than the shipbuilder. On that basis, the prudent and correct course would have been for Cheoy Lee to notify the Marine Department so that the matter could be assessed and any approval formally recorded. Although it is virtually certain that approval would have been granted, Cheoy Lee should have erred on the side of caution by reporting the installation and allowing the Marine Department to confirm that the risk was of no material significance.\nG4. Findings on Issue 3\n337.\nI find that the Port Bow Plate was not fitted on\nSea Smooth\nat the time of the collision. Had it been in place, its minimal thickness and limited role as a protective shield means that it would have had no causal effect on either the collision or the subsequent sinking of\nLamma IV\n. Although the Bow Plates had no safety significance, Cheoy Lee should, as a matter of prudence and proper practice, have informed the Marine Department of its addition.\nH. Coaming Height (Issue 4)\n338.\nThe fourth issue identified by the Court of Appeal is whether the height of the coaming on Lamma IV was lower than that required under the applicable regulations, and, if so, what effect this had on the safety of the vessel and the circumstances of its sinking. The Court of Appeal observed that this question gives rise not only to the matter of compliance in the individual case, but also to systemic questions including how such non-compliance could have gone undetected by the Marine Department during the regular surveys of\nLamma IV\n.\nH1. Background and Applicable Regulations\n339.\nThe height of the coaming in question was fitted at the internal doorway leading from the Passenger Saloon into the underdeck Crew Space on Lamma IV (“the Internal Door”). Access to the Passenger Saloon from the main deck was through external doors leading from the weather deck (“the External Doors”). The Internal Door, situated forward within the Passenger Saloon, provided access to the underdeck Crew Space located forward of the Engine Room. The Internal Door was fitted with a coaming of 190 mm within a fully enclosed superstructure, the entrances to which were protected by the External Doors having coaming height in excess of 300 mm.\n340.\nParagraph 11(i) of the Blue Book provided that:\n“\nFor a “deck launch” all deck openings are to be protected by weather-tight coamings, of the following heights unless as otherwise provided in (ii)\nClass 1 – 9”\nClass II – 12”\nClass III & IV – 15\n”\nLamma IV being a Class 1 vessel, the prescribed height of 9 inches (approximately 230–300 mm) was applicable.\n341.\nThe Revised GA was reviewed by Mr Leung Kwong Chow, ship inspector of the Marine Department, who inserted fifteen comments before approval. These comments were acknowledged by Mr Wong Chi Kin when he approved the drawing on 8 May 1995. Comment 4 stated: “All air pipes and access hatches that lead down from main deck to be of 300 mm coaming height.” Mr Leung also marked “W.T.” and “See Note 4” at the location of the Internal Door. Mr Leung explained that Comment 4 was intended as a general and preliminary note at a stage when it was not yet settled whether the External Doors alone would provide compliance. The undisputed evidence is that “W.T.” on the upper deck drawing denoted weathertight\n,\nnot watertight.\n342.\nThe Marine Department approved the arrangement whereby the Internal Door was fitted with a coaming of 190 mm, and the External Doors were fitted with coamings of 300mm during both the initial and final surveys, raising no objection to the coaming height of the Internal Door. Taken together with the inspection records, this indicates that the Marine Department regarded the protection afforded by the External Doors as satisfying the requirements of Paragraph 11(i) of the Blue Book.\nH2. Submissions of the Parties\n343.\nHKKF made no submissions on this issue. Hongkong Electric, while adopting a neutral stance, submitted that the coaming height did not play a causal role to the collision or sinking speed of\nLamma IV\n, pointing out the lack of evidence as to whether the Marine Department made a conscious decision to approve the coaming height of the Internal Door.\n344.\nCounsel for the Next of Kin, relying primarily on the expert opinion of Dr Renilson and, to a lesser extent, Mr Robert Vart, submitted that the term “deck openings” in paragraph 11(i) of the Blue Book included the Internal Door. They argued that Comment 4 expressly required a 300 mm coaming for all such access points and that strict compliance with the Blue Book was mandatory. Had a 300 mm coaming been fitted, the risk of water entering the Crew Space would have been reduced in the event that the Passenger Saloon became flooded following breach of the superstructure. As the coaming height was only 190 mm, they submitted it was non-compliant.\n345.\nCheoy Lee and the Marine Department, citing expert evidence from Mr Simon Burthem and Mr Anthony York, submitted that the coaming height requirement applied only to external deck openings exposed to weather or sea water, not to internal doors within an enclosed superstructure. The protective purpose of the rule, to prevent water on the open deck from entering the hull, was satisfied because all External Doors with coamings exceeded 300 mm and were weather-tight. Therefore, the 190 mm coaming of the Internal Door complied with both the 1995 Instructions and the Marine Department’s regulatory practice.\nH3. Analysis of Evidence and Regulatory Interpretation\n346.\nThe annotations and Comment 4 on the Revised GA were made at an early and preliminary stage, before the final configuration of the superstructure of\nLamma IV\nhad been decided. Mr Leung Kwong Chow confirmed that Comment 4 was intended as a general note at a stage when it had not yet been determined whether compliance with paragraph 11(i) of the Blue Book would be achieved by external or internal coamings. He further confirmed that the comment related to deck openings leading down from the main deck and was not directed at internal openings enclosed within the Passenger Saloon. The expert evidence of Mr Simon Burthem and Mr Anthony York was consistent in describing the 300 mm notation as a preliminary draft note rather than a binding specification.\n347.\nMr Simon Burthem explained that, although\nLamma IV\n, as a ferry operating within Hong Kong waters, was not required to comply with the International Load Line Convention 1966 (as amended in 1988) or the Lloyd’s Register of Shipping Rules (which were not in force when\nLamma IV\nwas constructed), those international conventions and classification rules were nevertheless relevant in understanding the underlying purpose of requiring weathertight closures on board a vessel. He said that the essential objective was to protect the vessel’s watertight envelope, namely the hull up to the bulkhead deck, by preventing the passage of water into spaces that provided access down into the hull, thereby avoiding loss of buoyancy and flooding. This objective was achieved by ensuring that openings at points of entry, such as doors, hatches, windows and ventilators, were fitted with effective weathertight closures.\n348.\nMr Burthem agreed with Mr Robert Vart that the reference to “deck openings” in paragraph 11(i) of the Blue Book was directed to exposed deck openings, namely openings subject to weather or wave action, and not to internal doors located within an enclosed superstructure. He disagreed with Dr Renilson’s interpretation that the phrase “all deck openings” referred to openings on the bulkhead deck irrespective of exposure. Mr Burthem explained that, while Dr Renilson’s evidence concerning the treatment of enclosed superstructures for stability calculations was “not incorrect”, it addressed a different issue. The present question concerned downflooding protection, which was a separate regulatory consideration. From that perspective, Marine regulations consistently focused on exposure to sea or weather.\n349.\nApplying that approach to\nLamma IV\n, Mr Burthem explained that the required protection against downflooding could be achieved in one of two ways: either by fitting the three External Doors\n[92]\nto the Passenger Saloon with weathertight closures and coamings of 300 mm, or by making the Internal Door weathertight with a 300 mm coaming, in which case additional protection at the External Doors would not be required. On that basis, Mr Burthem agreed with Mr Vart’s interpretation and rejected Dr Renilson’s construction of paragraph 11(i) of the Blue Book.\n350.\nParagraph 11(i) of the Blue Book required Class I vessels to have deck openings protected by coamings not less than nine inches (approximately 230–300 mm) in height in order to prevent seawater washing over external decks from entering internal spaces. The requirement was directed at openings exposed to weather and wave action and did not extend to internal doors situated within an enclosed superstructure where such doors were not exposed to external conditions.\n351.\nThe Revised GA contained an early annotation stating that “all air pipes and access hatches that lead down from the main deck” were to have 300 mm coamings. That note was general in nature and was made before the Marine Department confirmed which openings would be treated as external deck openings for the purposes of paragraph 11(i). Mr Leung Kwong Chow confirmed that compliance could be achieved either by external or internal coamings, depending on the arrangement ultimately approved by the Marine Department.\n352.\nThe Marine Department subsequently approved the arrangement under which the External Doors were fitted with weathertight closures and coamings of 300 mm and accepted this as satisfying the requirement under paragraph 11(i) of the Blue Book. The Internal Door, being located within an enclosed superstructure and not exposed to weather, was not subject to the same requirement. This approach was consistent with long-standing Marine Department regulatory practice and with the international conventions from which the Blue Book provisions were derived.\n353.\nI accept the evidence of Mr Simon Burthem and Mr Anthony York that the functional purpose of weathertight coamings is to prevent direct ingress of seawater from the external environment, and that this purpose was fully met on\nLamma IV\nby the coamings fitted at the External Doors. I further accept the evidence of all experts that the internal coaming height of 190 mm was not a causal factor in the loss of\nLamma IV\n.\n354.\nBearing in mind that the function of coamings is to prevent ingress arising from periodic or accidental weather exposure, and not to guard against flooding caused by major hull breaches resulting from collision, the Internal Door leading from the Passenger Saloon to the Crew Space was not required to be fitted with a coaming of 300 mm. That requirement had been satisfied by the External Doors, which were fitted with weathertight closures and coamings of 300 mm.\nH4. Findings on Issue 4\n355.\nOn Issue 4, I find that the 190mm coaming height of the Internal Door did not constitute a breach of any applicable regulatory requirement. The purpose of paragraph 11(i) of the Blue Book was fulfilled by the 300 mm coamings provided at the External Doors. Even if the Internal Door’s coaming height were technically below 300 mm, it neither contributed to the sinking nor had any material connection with the loss of life.\nI. Inspection of the Frame ½ Bulkhead (Issue 5)\n356.\nThe fifth issue identified by the Court of Appeal concerns whether the bulkhead at Frame ½ was subject to inspection on an annual or biennial basis, and whether the Marine Department’s survey was adequate to ensure the continued watertight integrity of the vessel. The Court of Appeal referred to the inspection frequency as “bi-annually”. For consistency with the terminology used in the 1995 Instructions and 2006 Code of Practice, I shall refer to the same interval as “biennially”, both expressions being understood to mean every two years.\nI1. 1995 Instructions\n357.\nParagraph 4.1of the 1995 Instructions provides that:\n“In order to be licensed to operate, launches and ferry vessels shall be built and surveyed in accordance with these Instructions for the issue of a Certificate of Survey.”\n358.\nChapter IX of the 1995 Instructions, which deals with Periodic Surveys, states that such surveys “shall be carried out in accordance with the following stipulated programme.” Under this programme, vessels were subject to annual, biennial and quadrennial inspections depending on the age and class of the vessel and the particular items to be examined. There is no dispute that\nLamma IV\nwas a Category A vessel within the meaning of the Instructions.\nUnder the Survey Intervals table in Chapter IX:\nItem 2 – Watertight/Weathertight Closing Appliances were to be inspected annually;\nItem 14 – Hull (External Inspection on Slip) was also to be carried out annually;\nItem 16 – Hull (Internal Examination of Hull, including Void Spaces and Built-in Tanks) was to be undertaken biennially; and\nItem 17 – Hull (Internal – Gauging Thickness of Deck, Shell and Bulkhead Plating) was likewise a biennial item, but applicable only to vessels aged eight years or more\n359.\nThe relevant internal examination of the hull, including void spaces such as those containing the Frame ½ Bulkhead, would thus have fallen under Item 16, requiring inspection biennially.\n360.\nLamma IV’\ns surveys after 2 January 2007 were conducted under the 2006 Code of Practice. Although the 2006 Code is more detailed and structured than the earlier 1995 Instructions, the substantive requirements relevant to this Inquest, particularly the scope and intervals of periodic surveys, remain materially the same.\n361.\nThe documentation associated with these surveys included a series of forms used by ship inspectors to record their findings and certify compliance. These included Marine Office Forms, MO 242 (Periodic Survey Form), MO 539 (Final Survey Form), and MO 540 (Result of Survey). The Forms did not require surveyors to cross-check the vessel’s structure against the approved design drawings but were intended to record that inspections had been carried out, deficiencies rectified, and the vessel found fit for service.\n362.\nIn practice, Marine Department surveyors appear to have relied on these Marine Office Forms to guide the scope of work for each inspection cycle. The evidence suggests that internal inspection of structural compartments, such as the Frame ½ Bulkhead, occurred only during the biennial or quadrennial surveys, and not during every annual inspection. It is within this procedural context that the question arises, whether the Frame ½ Bulkhead was inspected annually or biennially, and whether surveyors had an ongoing duty to check that it complied with the approved drawings.\nI2. Submissions of the Parties\n363.\nThe parties have different interpretations as to the nature and scope of the Marine Department’s duties during periodical surveys, and whether those duties required the ship inspectors to verify the watertight integrity of internal bulkheads against the approved drawings. HKKF took a neutral position and deferred to the Marine Department as the regulatory authority.\nI2.1 Next of Kin\n364.\nThe Next of Kin submitted that the Marine Department failed to conduct proper periodical surveys of the bulkhead at Frame ½ and that this failure was systemic rather than incidental. They argued that, had the surveys been carried out properly with reference to the vessel’s approved structural drawings, the absence of the watertight door at the Frame ½ Bulkhead would have been detected and rectified before the collision.\n365.\nIt was further argued by the Next of Kin that the biennial periodic survey required internal hull inspection, which necessarily included examining watertight bulkheads. A watertight bulkhead cannot be meaningfully inspected without confirming the presence and condition of its watertight door, as the door was integral to its watertight integrity. They submitted that, between 1997 and 2012, there were eight missed opportunities during biennial surveys to detect the discrepancy, any inspector who had consulted the Profile and Deck drawing would have seen that an Access Opening existed where a watertight door should have been fitted.\n366.\nThe Next of Kin criticised the failure by the ship inspectors to consult the vessel’s structural drawings before conducting internal hull inspections. They argued that it was good practice for surveyors to review such drawings to identify which bulkheads were designated as watertight. However, the ship inspectors relied on visual observation and did not routinely bring or consult the drawings. The Next of Kin submitted that this fell below acceptable standards and was contrary to international guidance which emphasised the need to review drawings prior to survey.\n367.\nThe Next of Kin said that the omission was particularly serious during the quadrennial surveys, which incorporated both thickness gauging and the biennial inspection requirements. They referred to the evidence of Mr Louk Hon Ying, ship inspector for the 2005 and 2009 quadrennial surveys, who confirmed that he had the Shell Expansion drawing available during thickness gauging. That plan identified the Frame ½ Bulkhead as watertight. The Next of Kin argued that Mr Louk’s explanation, that he consulted the drawing only for specific measurements and did not consider its wider implications, was unacceptable. As the officer responsible for the hull internal inspection, he had a duty to identify and verify the location of all watertight bulkheads, which he failed to do.\n368.\nThe Next of Kin noted the confusion among Marine Department officers as to whether the inspection of “watertight/weathertight closing appliances” during the Final Survey extended to below-deck fittings. They argued that it must do so as the term “watertight/weathertight” applied logically to all such appliances irrespective of location and there was no justification for subjecting below-deck watertight doors to a lesser standard. Logistical matters, such as obtaining a confined space certificate, cannot excuse the failure to inspect. In their submission, the fundamental problem was that the Marine Department officers did not appreciate that below-deck watertight appliances existed and therefore did not ask or check. This was said to be an omission caused by lack of awareness, rather than by any limitation in the survey process.\n369.\nIn summary, the Next of Kin submitted that a properly conducted biennial periodical survey conducted by reference to approved structural drawings as required, would have revealed that the Frame ½ Bulkhead was not built watertight as specified. They submitted that the Marine Department’s systemic failure to carry out periodical inspections with the necessary diligence, documentation and cross-referencing allowed this critical safety defect to go undetected throughout\nLamma IV\n’s operational life.\nI2.2 Cheoy Lee\n370.\nCheoy Lee submitted that, after delivery of the vessel, their role in inspections was limited to assisting the Marine Department when requested. It emphasised that inspection items were determined by Hongkong Electric and that internal hull inspections, including any bulkhead inspection, were conducted only at the biennial or quadrennial intervals specified. It maintained that verification against drawings was not part of their post-delivery responsibility.\nI2.3 Marine Department\n371.\nThe Marine Department submitted that the absence of a watertight door at the Frame ½ Bulkhead was a matter that fell within the initial survey, not a matter that periodical surveys were required to detect.\n372.\nThe Department emphasised the distinction between the initial survey and the periodical survey. The initial survey verifies that a vessel has been built in accordance with its approved plans. Periodical surveys, by contrast, examine the vessel’s condition as it exists in service, focusing on wear, deterioration, damage or unauthorised alterations. This distinction, they submitted, reflects universal industry practice and was supported by expert evidence. Both Mr Simon Burthem and Mr Robert Vart stated that a periodical surveyor’s task is to look for signs of alteration and that it would be “harsh” to expect a surveyor to revisit or question the vessel’s original construction.\n373.\nThe Department submitted that ship inspectors were not required to bring or consult vessel plans during periodical surveys. Where drawings were referred to, it was to check for possible unauthorised modifications, not to re-verify compliance with the original design. The international guidelines cited by the Next of Kin do not impose a broader obligation. The Maritime and Coastguard Agency Guidance\n[93]\nwas directed at confirming the condition and operability of existing fittings, and recommended consultation of the ship’s file in more complex cases. The International Association of Classification Societies guideline cited was a recommendation intended for large, complex vessels, and did not apply to a small ferry such as\nLamma IV\n.\n374.\nThe Marine Department noted that the internal examination of the hull, including bulkheads, was expressly required during the biennial survey under both the 1995 Instructions and the 2006 Code of Practice. The evidence from eighteen Marine Department ship inspectors was consistent: the internal structure of the vessel was inspected every two years in accordance with those requirements.\n375.\nThe Department submitted that any uncertainty among the ship inspectors as to whether the annual Final Survey of “watertight/weathertight closing appliances” included below-deck fittings is immaterial. No watertight door was ever fitted at the Frame ½ Bulkhead. There was therefore no appliance capable of inspection. Visual inspection of the bulkhead showed smooth edges without hinges, bolt holes or any indication that a door had previously existed.\n376.\nThe Department further argued that the suggestion that the Access Opening should have aroused suspicion is based on hindsight. No one, neither the Marine Department inspectors, the shipyard, nor the operator, identified the opening as suspicious at any stage. However, counsel for the Marine Department acknowledged that the general awareness of inspectors at the time could have been higher, and noted that subsequent reforms have enhanced training, the use of onboard technology and the structure of inspection forms.\n377.\nIn summary, the Marine Department submitted that the bulkhead at Frame ½ was inspected as required during the biennial surveys. The failure to identify the missing watertight door did not represent a failure of the periodical survey system. It was a mistake originating at the vessel’s original construction and not something that ordinary periodical inspections, which focused on the vessel’s condition, could reasonably have been expected to pick up.\nI2.3 Hongkong Electric\n378.\nHongkong Electric adopted a largely neutral position on the Marine Department’s internal policies and practices concerning periodical surveys, stating that these procedures were not known to Hongkong Electric at the material times.\n379.\nHongkong Electric submitted that it possessed no naval architectural expertise and therefore depended wholly on the Marine Department’s professional judgment. Between 1997 and 2012, the Department issued seventeen Certificates of Survey, each confirming that the vessel had passed the required periodical inspections. Hongkong Electric argued it had no reason to doubt the vessel’s seaworthiness or the adequacy of the survey regime in light of these annual certifications.\n380.\nBased on the evidence of Marine Department officers, Hongkong Electric noted that the inspection of the Frame ½ Bulkhead during periodical surveys was confined to assessing its condition and detecting any post-construction alterations. Inspectors were not required to check below-deck watertight closing appliances during the annual Final Survey nor were they required to bring structural drawings to periodical surveys. The Department’s focus, as presented in the evidence, was on wear, damage and unauthorised changes, rather than verification of the vessel’s original construction.\n381.\nHongkong Electric relied on the evidence of Mr Robert Vart, who observed that it would be “harsh” to expect Marine Department inspectors to question the vessel’s internal structure during a periodical survey. This supported the proposition that periodical surveys were directed to condition, not design verification.\n382.\nHongkong Electric further submitted that evidence regarding the operator’s routine maintenance had limited value to the Inquest. Such maintenance focused on wear and tear and not on identifying structural issues originating from construction. Hongkong Electric maintained that\nLamma IV\nwas well-maintained throughout its operational life.\nI3. Analysis of Evidence and Parties’ submissions\n383.\nThe difficulty with the Next of Kin’s submissions is that they proceeded from a premise that was not based on the regulatory requirement. Their argument depended on the proposition that a watertight door should have been fitted at the Frame ½ Bulkhead, and that the Marine Department ship inspectors, had they conducted their periodical surveys properly, would have detected its absence and ensured that it was rectified. Their position presupposed that\nLamma IV,\na vessel operating in the sheltered waters of Hong Kong, ought to have been constructed as a two-compartment flooding vessel with a watertight door at the Frame ½ Bulkhead, when that was not the requirement.\n384.\nFurther, even if a ship inspector had appreciated that the Access Opening at the Frame ½ Bulkhead was not fitted with a watertight door and that certain structural drawings depicted that bulkhead as watertight, it does not follow that the appropriate solution would have been the installation of such a door. Dr Armstrong confirmed at the COI that fixing a watertight door at that location was not the solution, and that compliance with the one-compartment flooding standard would instead have required either a reduction in ballast weight or the provision of additional buoyancy, such as by fitting a buoyancy tank at the transom.\n[94]\nIn those circumstances, the premise underlying the Next of Kin’s criticism of the periodical surveys, that proper inspection would have led to the installation of a watertight door and thereby addressed the underlying deficiency, is unsound.\n385.\nI accept the submissions of the Marine Department and Hongkong Electric. The expectation of the Next of Kin that ship inspectors conducting periodical surveys should routinely consult the approved structural drawings in order to re-verify compliance with the vessel’s original construction is, in my view, impractical, unrealistic, and inconsistent with the purpose of a periodical survey.\n386.\nIt is essential to maintain a clear distinction between the initial survey and periodical surveys. The former ensures a vessel's initial compliance with its design and regulatory standards. The latter, by contrast, are concerned solely with the vessel's ongoing condition, verifying that it has not been compromised by wear, deterioration or unauthorized alterations. They are not a re-approval of the original design.\n387.\nTo impose on periodical surveyors a duty to revisit questions of design compliance at every inspection would be to conflate these two distinct types of surveys. It would also divert the time and attention of the ship inspectors from the tasks the periodical survey has to address. The suggestion by the Next of Kin effectively demands near-perfect scrutiny, carried out with the benefit of hindsight and without appreciation of the practical realities faced by ship inspectors conducting multiple inspections in a day.\nI4. Findings on Issue 5\n388.\nI therefore find that the Frame ½ Bulkhead was inspected at the prescribed biennial intervals. The purpose of the biennial survey was to assess the vessel’s condition, not re-verifying the correctness of its original construction.\nThe absence of the watertight door was inherent to the\nLamma IV\n's approved design; it was not something that a ship inspector would have been required to identify or report\nduring periodical survey.\nJ. Working Hours of Seafarers (Issue 6)\n389.\nThe sixth issue directed by the Court of Appeal concerns the long working hours of seafarers in Hong Kong’s passenger ferry industry and whether such practices posed a systemic risk to maritime safety.\nJ1. Evidence concerning HKKF Seafarers’ Working Hours\n390.\nMr Cheung Tai Kei, Director of HKKF since 1998, gave evidence concerning the duty arrangements of HKKF’s seafarers. He explained that crew shifts were organised in accordance with the schedules stipulated under government service contracts and operated under two main systems: the 24-hour on, 24-hour off arrangement (“Double-Shift”) and the Single-Shift system.\n391.\nUnder the Double-Shift system, seafarers commenced duty at approximately 7 or 8 a.m. and remained on board until the same time the following day. They were rostered to work around 13 days per month, generally three days per week, and were off duty for the remaining 17 days. During their 24-hour shift, they were required to remain on the vessel but not continuously at work. The sailing between Yung Shue Wan and Central took about 25 minutes, with intervals of 15 to 45 minutes between trips depending on traffic and passenger demand. The vessels were equipped with bunks, air-conditioning, washrooms, refrigerators and microwaves, allowing crew to rest and sleep between sailings. Mr Cheung stated that no staff had ever complained of inadequate rest or excessive fatigue.\n392.\nThe Single-Shift arrangement was typically applied to substitute crew members covering for absent colleagues. Such shifts lasted about 12 hours, beginning at 6 or 7 a.m. Mr Cheung acknowledged that seafarers on Single-Shifts generally accumulated more total working hours per month than those on the Double-Shift. However, he said that crew members preferred the Double-Shift arrangement as it provided longer consolidated periods of time off and reduced the need for daily commuting, particularly for those serving outlying island routes.\n393.\nFollowing the 2012 collision, the Marine Department issued a consultation paper to the Local Vessels Advisory Committee on 28 December 2012 proposing guidelines to regulate crew working hours. The proposals included capping continuous navigation time, limiting total accumulated duty hours and ensuring minimum meal breaks. These proposals were refined at the fifth Local Vessels Advisory Committee meeting on 11 April 2013.\n394.\nThe Local Vessels Advisory Committee is a statutory body, comprising representatives from the Marine Department, the Transport Department, major ferry operators, and seafarer unions including the Harbour Transportation Workers General Union, the Small Craft Workers Union, and the First Ferry/Hong Kong Seamen’s Union.\n395.\nMr Lee Kwok Keung, Chairman of the Hong Kong & Kowloon Trade Union Council, was not a member of the Local Vessels Advisory Committee. His organisation represents seafarers employed on ocean-going vessels rather than local ferries. Mr Lee advocated extending international conventions applicable to ocean-going vessels to local operations, asserting that there was no material difference between local and international waters. However, Mr Chan See Yin explained that ocean-going seafarers might spend 15 to 30 days continuously at sea, whereas local ferry crews, even under the Double-Shift arrangement, returned home after each shift. Mr Lee admitted that he had never worked as a seafarer, nor received any complaints from local ferry crews about the Double-Shift arrangement, though he drew analogies with land-based occupations such as bus and taxi drivers where duty hours are capped.\n396.\nMr Chan See Yin gave evidence that the Marine Department had received consistent feedback from ferry crews indicating a general preference for Double-Shift. He confirmed that there was resistance within the industry to altering the arrangement, which many crew members considered practical and beneficial. No evidence was presented at the Inquest of crew fatigue or complaints concerning the adequacy of rest under the existing Double-Shift system.\n397.\nAt the time of the collision, there was no specific statutory regulation governing the working hours of crew employed in the local passenger ferry trade. The\nMerchant Shipping (Seafarers) (Hours of Work) Regulation\n[95]\n(“\nCap. 478D\n”), subsidiary legislation under the\nMerchant Shipping (Seafarers) Ordinance\n[96]\n, only applied to sea-going Hong Kong ships and not to local ferries operating within Hong Kong waters. In practice, the working hours and rest arrangements of masters, coxswains, engineers, and crew of local passenger vessels were managed through company policies\n398.\nEvidence before this Inquest indicated that in practice, ferry operations in Hong Kong were subject to commercial and logistical pressures which may result in extended working hours. Both the HKKF and Hongkong Electric, maintained internal guidelines on crew duty hours, but these were not subject to external audit or verification by the Marine Department.\nJ3. Submissions of the Parties\n399.\nCheoy Lee & Hongkong Electric took a neutral stance on this issue and did not make submissions.\nJ3.1 Next of Kin\n400.\nThe Next of Kin submitted that excessive working hours and fatigue among seafarers in the local passenger ferry industry posed a serious and long-standing safety risk. They identified the Double-Shift system, commonly adopted by ferry operators, as the root cause of seafarer fatigue. The engineer of the Sea Smooth had himself admitted to being “a little bit tired” and paying “not much attention” at the time of the collision,\n[97]\nand an earlier collision involving First Ferry VIII on 3 April 2012 had been officially attributed to crew fatigue under the same roster pattern.\n[98]\n401.\nIt was submitted by the Next of Kin that Hong Kong lacked any statutory regulation or prescribed duty-roster requirements for local ferries, in contrast to other jurisdictions such as the United Kingdom and Sydney, where minimum rest periods were required by law. Although the Marine Department proposed working hour guidelines in 2013, intended to cap duty hours and require minimum rest breaks, the Department had since adopted a “laid-back attitude”, leaving the proposal dormant for nearly a decade.\n402.\nThe Next of Kin further submitted that the industry’s present claim of an average 10 to 13.5-hour working day was misleading, as such figures accounted only for navigation hours and excluded other on-board duties. When all tasks were taken into account, total working hours could extend to as much as 16 hours. They emphasised that crew members were required to undertake the first morning sailing at the twenty-third hour of their shift, when fatigue was at its most acute.\n403.\nThe Next of Kin relied on\nsection 4\nof\nCap 478D\nwhich mandates, subject to Regulation 6, that seafarers be provided with a minimum of 10 hours of rest in any 24-hour period, which shall not be counted as on-duty time. Although the Regulation applies exclusively to ocean-going vessels, the Next of Kin submitted that there were compelling justifications for extending the same requirement to seafarers working on local vessels.\n404.\nThey pointed out that local ferries carry numbers of passengers comparable to those on ocean-going vessels, thereby necessitating the same level of vigilance during navigation, as noted by Mr Lee Kwok Keung. Moreover, seafarers on both ocean-going and local vessels are required to comply with the same navigational standards, including the duty to maintain a proper lookout under Rule 5 of the International Regulations for Preventing Collisions at Sea (“COLREGs”). Given these similarities, the Next of Kin submitted that it was only logical to ensure that seafarers on local vessels are afforded equivalent rest periods in order to uphold safety standards and to prevent fatigue-related incidents.\n405.\nCounsel for the Next of Kin further argued that working hour caps similar to those applied to other forms of public transport, such as buses and MTR train operators, should be introduced. They argued that intervals between sailings and overnight stays on vessels do not constitute genuine rest, as noise, standby duties, and operational interruptions limit sleep to only a few hours.\n406.\nCounsel for the Next of Kin also argued that passenger safety must take precedence over operational convenience and that long working hours undermined both safety and the attractiveness of the profession, contributing to the industry’s manpower shortage. The need for reform was said to be particularly urgent during peak hours, when compressed turn-around times reduced the already limited rest intervals between late-night and early-morning sailings. In conclusion, the Next of Kin argued that both the Lamma IV and First Ferry VIII collisions illustrated the real and foreseeable risk of fatigue within the existing Double-Shift system, and they urged the Marine Department to review and reform the practice and to impose a statutory cap on maximum working hours in the interest of passenger safety.\nJ3.2 Marine Department\n407.\nThe Marine Department submitted that the employment arrangements and working hours of crew serving on local vessels fall primarily within the purview of the\nEmployment Ordinance\n[99]\nand the Labour Department, rather than under the direct control of the Marine Department. It stated that while the Department has made efforts to facilitate improvement in industry practices, any change to the existing duty systems would require cooperation among all stakeholders, including ferry operators and crew unions, and could not be implemented unilaterally by the regulatory authority.\n408.\nThe Marine Department noted that HKKF had received no complaints from its crew concerning inadequate rest and that its vessels were fitted with facilities intended to provide a reasonable level of comfort during non-working periods. It further acknowledged that fatigue had been identified as a contributory factor in at least one previous marine accident involving another ferry but maintained that this did not justify regulatory intervention directed at a single operator.\n409.\nIn 2013, the Marine Department proposed a set of voluntary guidelines to address the Double-Shift system. These included:\n(i) a 30-minute rest period after 6 hours of continuous navigation;\n(ii) a cap of 13 hours of cumulative duty time in any 24-hour period; and\n(iii) a minimum 40-minute meal break.\n410.\nThe Marine Department explained that implementation of these voluntary guidelines required the cooperation of all industry stakeholders, including ferry operators, crew unions, and passenger representatives. Owing to manpower shortages and the absence of industry consensus, the proposals were not formally adopted. The Marine Department’s current stance is that no regulatory change will be pursued at this stage, although the Department remains prepared to revisit the issue should industry circumstances permit.\nJ3.3 HKKF\n411.\nHKKF submitted that the Double-Shift system was neither relevant to the Lamma IV collision nor causative of it. The company maintained that this system is accepted by crew, and the call for its investigation stemmed from a misunderstanding of local ferry operations.\n412.\nHKKF argued that there was no evidence, either before the COI or in the subsequent criminal proceedings, to suggest that crew fatigue or working hours played any role in the 2012 collision. The concern was said to have originated from Mr Lee Kwok Keung whom HKKF described as an unrepresentative source, noting that his union represented ocean-going seafarers rather than local ferry crews, that he had never served at sea, and that he had received no direct complaints from local ferry staff.\n413.\nHKKF explained that the Double-Shift system did not involve continuous 24-hour work. Instead, two crews alternated in 24-hour duty cycles, during which they had multiple breaks between short voyages, meal periods, and overnight rest on board ranging from 4.5 to 6.75 hours. The system is said to balance operational efficiency with crew welfare, accommodating early and late sailings when commuting was impracticable.\n414.\nHKKF further submitted that the system complied with the\nEmployment Ordinance\n, and that the Marine Department had never received any complaints about it from crew or unions. On the contrary, evidence from both HKKF and the Marine Department indicated that crew generally preferred the arrangement as it afforded longer rest periods between shifts and reduced commuting time.\n415.\nHKKF emphasised that international standards concerning hours of rest were devised for ocean-going vessels operating at sea for extended periods and were not applicable to short-haul ferry services within Hong Kong waters. The working arrangements of local ferry crews, they said, should be understood within that context.\n416.\nFinally, HKKF pointed out that the issue of working hours had already been reviewed by the Local Vessels Advisory Committee. Following post-collision discussions, the Committee found existing working practices broadly consistent with proposed guidelines, and employee representatives expressed concern that more rigid regulation might reduce income and rest days. HKKF therefore submitted that the matter was an industry-wide policy issue that had been adequately addressed through existing channels and was not relevant to the causes of the Lamma IV disaster.\nJ2. Consideration of the Working Hours of Seafarers\n417.\nThe evidence concerning the working hours of ferry crews presents a complex picture. On the one hand, the Double-Shift system appears, at first sight, to be an arduous arrangement. It is intuitively associated with fatigue, particularly where crew members are responsible for the safe navigation of passenger vessels. On the other hand, the evidence before the Inquest does not demonstrate that fatigue played any part in the circumstances of the Lamma IV collision. There is also no evidence of any complaint from the seafarers of HKKF, or from other ferry operators, concerning excessive hours or inadequate rest, although one of the crew of Sea Smooth told the COI that he was “a little tired” before the collision.\n418.\nThe Court’s concern, therefore, lies not in identifying a causal link to the 2012 collision, but in examining whether the system presents a latent risk to maritime safety. In this respect, I accept that the working hour system for local ferries is influenced by several competing considerations: the need to maintain continuous public transport to the outlying islands, the shortage of manpower, and the practical limits of crew rotation logistics. These matters extend beyond the remit of this Inquest and cannot be resolved by judicial recommendations alone.\n419.\nWhile the Next of Kin have criticised the Marine Department’s perceived passivity, the Court acknowledges the Department’s predicament as realistically, it can only act as a mediator to bring stakeholders together rather than unilaterally impose change. The Court further acknowledges the broader societal challenge that the seafaring profession which, like many other traditional occupations, struggles to attract new entrants in a changing social and economic climate.\n420.\nThe proposals made by the Marine Department in 2013 were reasonable in principle and would, if implemented, have provided a balanced improvement. However, progress has been impeded by the absence of statutory backing, a continuing manpower shortage, and, as established in evidence, the requirement for HKKF to maintain the minimum service frequency stipulated in its licence.\n[100]\nJ3. Findings on Issue 6\n421.\nI find that the difficulties identified in Issue 6 arise principally from the manpower shortage within the ferry operators. Any meaningful reform of working hours cannot be achieved by the Marine Department acting alone as it requires the cooperation of multiple stakeholders across the industry, including operators and unions. In these circumstances, the Marine Department’s role is better carried out through engagement, consultation supported by evidence, rather than by imposing requirements unilaterally. Given the staffing constraints and the need for agreement, formal recommendations would not realistically resolve this issue. The more appropriate course is for the Marine Department to continue working collaboratively with the industry to identify measures that are both practical and capable of implementation.\nK. Navigation Speed\n422.\nThe 2012 collision occurred in an area of Hong Kong waters that was not subject to statutory speed limits. Although navigational speed was not one of the six issues remitted by the Court of Appeal, the question was examined at the Inquest because Dr Armstrong’s report highlighted the contribution of\nSea Smooth\n’s speed to the severity of the collision.\n[101]\nDr Armstrong identified the high kinetic energy generated at the moment of impact as the principal physical cause of the catastrophic damage to\nLamma IV\n. He observed that, had\nSea Smooth\nbeen travelling more slowly, it might not have penetrated the hull a second time or caused such extensive structural damage to the Tank Room.\n423.\nIn light of these observations, Captain Dominic Bell was instructed by the Hong Kong Marine Police to review the system for granting Speed Restriction Exemption Permit to passenger ferries, and Captain Jeremy Ayling was instructed by the Marine Department to address the same matters.\nK1. Law and Regulations Governing Navigational Speed\n424.\nAt the time of the collision in 2012, navigational speed for local vessels in Hong Kong was governed by two sources. The\nMerchant Shipping (Local Vessels) (General) Regulation\n[102]\n(“\nCap. 548F\n”), a subsidiary regulation under the\nMerchant Shipping (Local Vessels) Ordinance\n[103]\n(“\nCap 548\n”), the statute regulating local vessels in Hong Kong waters, set maximum permitted speeds for different classes of vessel and locations, with high-speed craft limited to 15 knots between half an hour after sunset and half an hour before sunrise, unless exempted by the Director of Marine under a Miscellaneous Permit issued pursuant to\nsection 70\nof\nCap. 548\n. More importantly, COLREGs applied to all vessels at all times. Rule 6 imposes a continuing duty to proceed at a safe speed having regard to visibility, traffic density, manoeuvring characteristics, and prevailing navigational hazards. That duty is paramount and is not displaced by any local speed limit or exemption.\n425.\nThe Miscellaneous Permit system in force at the time required, amongst other matters, that the vessel be radar-equipped to Marine Department specifications, that the coxswain possess at least two years’ relevant experience or a Type Rating Certificate, and that a certified radar observer be on board. The grant of a speed restriction exemption did not relieve the master or coxswain of the obligation to comply with the COLREGs or to exercise prudent seamanship in determining a safe speed.\nK2. Captain Dominic Bell\n[104]\n426.\nCaptain Dominic Bell emphasised that COLREGs govern all vessels at all times. Rule 6 (safe speed) and Rule 5 (proper lookout) impose overriding duties that cannot be displaced by local legislation or permits.\n427.\nHe considered that the Speed Restriction Exemption Permit system in force in 2012 placed undue weight on administrative compliance and insufficient emphasis on real-time judgment and seamanship. He regarded the Permit’s crew-qualification requirements as inadequate, noting that two years’ experience could not properly substitute for structured accreditation such as a Type Rating Certificate.\n428.\nHe further criticised the drafting of the radar-certificate condition, which required only one crew member to hold the qualification. In his view, the coxswain, being the person in charge of navigation, should have been expressly required to hold the certificate, and a dedicated lookout should have been required at night or at high speed.\n429.\nReferencing the High-Speed Craft Code and practices at the Port of Southampton, he noted that other jurisdictions exercise closer and more dynamic control, often involving real-time authorisation. He observed that the Hong Kong system, although procedurally sound, did not adequately ensure that the operational requirements of safe speed were met.\n430.\nCaptain Bell accepted that some of Captain Ayling’s additional radar considerations were correct but stated they were immaterial to the circumstances of the night in question. He maintained that\nSea Smooth\nwas not a high-speed craft under the international code and therefore rejected the relevance of Captain Ayling’s lighting observations.\n431.\nCaptain Bell also rejected Captain Ayling’s concerns about the Southampton comparison, stating that he had been instructed to identify “equivalencies” and that the Red Jet ferries met that criterion.\nK3. Captain Jeremy Ayling\n[105]\n432.\nCaptain Jeremy Ayling broadly agreed with Captain Bell’s analysis of COLREGs. He emphasised that COLREGs remain paramount and that the duties of safe speed and proper lookout cannot be displaced by any local exemption.\n433.\nHe explained the limitations of radar fitted to vessels such\nas Sea Smooth\n, noting that the low scanner height reduced effectiveness, thereby increasing the importance of continuous visual lookout. He corrected certain matters in Captain Bell’s report, including the latter’s reference to\nCap. 313E\n, which had been repealed by the time of the collision. Captain Bell defended his reference to\nCap. 313E\n, explaining that it was in force when\nSea Smooth\nwas built.\n434.\nCaptain Ayling regarded Marine Department Notice 124/1998 requiring applicants for a Speed Restriction Exemption Permit to submit records confirming two years’ operating experience as a sufficient local requirement for coxswains on domestic routes.\n435.\nAlthough he accepted that the wording of the radar-certificate condition could have been clearer, he considered the system operationally sound, as coxswains generally remained on the bridge throughout the voyage and were typically the certified radar operators.\n436.\nCaptain Ayling disagreed with Captain Bell’s comparison with the Port of Southampton, stating that Hong Kong waters are far busier, more open, and subject to different topographical constraints, making a case-by-case system impracticable.\n437.\nIn conclusion, Captain Ayling regarded the Speed Restriction Exemption Permit system as proportionate to Hong Kong’s operating environment and consistent with the overarching duty of safe speed under the COLREGs.\nK4. Consideration of Expert Opinions on Navigational Speed\n438.\nThe opinions of Captain Bell and Captain Ayling are best understood as complementary: one approaching the matter from the standpoint of international best practice, the other from the operational realities of Hong Kong’s busy and constrained waterways. Together, their evidence provides a clear basis for assessing the regulation of navigational speed and the adequacy of the then-existing permit system.\n439.\nCOLREGs, and in particular Rule 6, impose an overriding duty to proceed at a safe speed at all times. That obligation cannot be displaced by any local exemption and remains a personal responsibility of the master or coxswain. It is the ultimate safeguard against excessive speed.\n440.\nExperience alone may not ensure navigational competence. Structured training, such as the Type Rating Certificate or the Fast-Speed Passenger Vessel Endorsement, affords a higher level of assurance that those operating high-speed ferries have the professional skills required to make safe-speed judgements.\n441.\nElectronic aids, including radar, do not displace the primary duty to maintain an effective visual lookout. Vigilance, situational awareness, and sound seamanship remain essential elements of safe navigation.\n442.\nThe Speed Restriction Exemption Permit system in force in 2012 was not inherently unsafe, but it placed insufficient emphasis on continuing training, radar proficiency, and lookout discipline, matters central to the effective discharge of the safe-speed obligation.\n443.\nThe measures introduced by the Marine Department since the 2012 collision, most notably the Fast-Speed Passenger Vessel Endorsement Scheme, mandatory radar training, and strengthened lookout requirements, have substantially addressed the shortcomings identified by the experts.\nK5. Findings on Navigational Speed\n444.\nAlthough navigational speed was a critical factor in the severity of this tragedy, the underlying regulatory system was not in itself defective. The collision resulted from a failure to comply with the overriding obligations under COLREGs, rather than from any deficiency in the Speed Restriction Exemption Permit system. The reforms subsequently implemented by the Marine Department have materially strengthened the system which is now consistent with international standards while remaining suited to the practical realities of Hong Kong waters. Ultimately, no exemption, permit condition or training requirement can relieve a coxswain of the absolute duty to proceed at a safe speed and to always maintain a proper lookout.\nL. Integration of Findings: Broad Circumstances and Systemic Deficiencies\n445.\nHaving dealt with the issue of navigation speed, I now look at how the six issues identified by the Court of Appeal fit into the regulatory design basis that applied at the time of the deaths. This section does not revisit the findings of the COI. Instead, it focuses on the watertight subdivision of Lamma IV and the design standards required by the regulations at the time, as this is central to understanding the broad circumstances of the deaths. The other issues identified by the Court of Appeal were considered elsewhere in this Verdict but did not materially change the overall circumstances in which the deaths occurred.\nL1. Watertight Subdivision and the Broad Circumstances of the Deaths\n446.\nConsiderable attention at this Inquest was directed to the absence of a watertight door in the bulkhead at Frame ½, an issue originally highlighted in the COI Report, which found that the rapid sinking of Lamma IV was materially attributable to that omission. This Court does not depart from, or seek to revisit, that finding, which was made in the context of identifying the factors contributing to the speed of\nLamma IV\n’s sinking.\n447.\nThe focus of this Inquest, however, extends beyond the cause of the rapid sinking to include the broader and more complete context of the vessel’s design intent, the regulatory requirements in force at the time and the rationale for the absence of a watertight door in the construction of Lamma IV. When viewed within that broader context, it becomes evident that the omission of a watertight door at the Frame ½ Bulkhead did not constitute a design error nor amount to a breach of the regulatory requirements in force at the time.\n448.\nAt the material time, Lamma IV was required to meet the one-compartment flooding standard following the assumed extent of damage. Dr Armstrong observed that this was a standard commonly applied internationally to local vessels.\n[106]\nThere was no regulation requiring a watertight door at any particular bulkhead, including the Frame ½ Bulkhead. The requirement under the Blue Book and\nCap. 369AM\npermitted flexibility in subdivision arrangements, provided the damage stability calculations demonstrated compliance. It was on this basis that both Mr Chan See Yin and Mr Chick King Fai confirmed that the fitting of a watertight door at the Frame ½ Bulkhead was optional and that its absence did not affect\nLamma IV’\ns compliance with the regulatory requirements in force at the material time.\n449.\nNeither the Next of Kin nor the Marine Department identified any regulation requiring the Frame ½ Bulkhead to be watertight, nor any rule breached by its removal in 1994 and 1995. Their criticism focused instead on the consequence of the collision namely, that flooding extended across two compartments, and on the argument that the 0.1L Rule was merely a calculation tool. They further suggested that the decision to replace the watertight door fitted on the basis ship Eastern District No. 1 with an Access Opening on Lamma IV was improper. However, this post-event reasoning does not establish that any regulatory requirement was contravened at the time of design and construction.\n450.\nDr Armstrong confirmed that Lamma IV, as built in 1995, satisfied the one-compartment flooding standard. That position changed after 8.25 tonnes of lead ballast were added in 1998, resulting in an increase of around 30 per cent of the vessel’s lightship weight. The additional ballast increased displacement and reduced residual buoyancy. Had the 0.1L Rule been correctly applied in the 1998 or 2005 Damage Stability Calculations, it would have shown that\nLamma IV\nno longer met the one-compartment flooding standard, as the margin line would have become immersed. Accordingly, by the time of the collision in 2012, Lamma IV, though designed and approved for one-compartment flooding, was no longer compliant with that standard.\n451.\nDr Armstrong explained that, once non-compliance arose after 1998, the proper way to restore compliance with the one-compartment flooding standard would have been either to reduce the ballast or to fit buoyancy boxes aft of the transom.\n[107]\nMr Wong Wing Cheun, Senior Surveyor of Ships confirmed that such measures could have been adopted and that the Marine Department would have accepted them. He also confirmed that, had any such measure been taken so that the margin line would not be immersed, the revised ballast arrangement would have been approved by the Department.\n[108]\n452.\nDr Armstrong further stated that installing a watertight door at the Frame ½ Bulkhead was not an appropriate solution.\n[109]\nMr Anthony York likewise accepted that, since the 0.1L Rule required the Steering Gear Compartment and the Tank Room to be treated as a single space for calculation purposes, installing a watertight door would not have corrected the underlying deficiency. Accordingly, even if the Damage Stability Calculations in 1998 or 2005 had been identified as erroneous, any remedial measure would have been directed towards re-establishing compliance with the one-compartment flooding standard rather than converting Lamma IV into a two-compartment flooding vessel by installing a watertight door at the Frame ½ Bulkhead. Put simply, even if the errors had been detected and rectified, Lamma IV would still have remained a vessel designed, and approved, to withstand flooding of only one compartment.\n453.\nDr Renilson\n[110]\nand Mr Simon Burthem confirmed that, had Lamma IV remained in her original 1996 lightship weight, without the addition of lead ballast, the Damage Stability Calculations showed that her margin line would not have been submerged in a one-compartment flooding scenario. Nonetheless, they agreed that the vessel would still have sunk following the 2012 collision, albeit between 20 and 60 seconds later, a delay that would still have been insufficient to permit safe evacuation. This evidence is consistent with the assessment that the decisive factor was that\nLamma IV\n, a one-compartment flooding vessel, was subjected to a two-compartment damage, an extent of damage more characteristic of an ocean-going vessel than one operating within Hong Kong sheltered waters.\n454.\nIn his report,\n[111]\nDr Armstrong observed that a vessel’s survivability depended upon compliance with the watertight subdivision standards prescribed by regulation. He confirmed that the regulations required Lamma IV to withstand flooding of one compartment only. The collision between Lamma IV and Sea Smooth caused two-compartment flooding, an extent of damage beyond the standard\nLamma IV\nwas required, or expected, to survive.\n455.\nDr Armstrong also observed that the effect of the missing watertight door “would not have been catastrophic if only one compartment on Lamma IV had been damaged, as postulated by the regulation.”\n[112]\nDr Armstrong’s evidence underscores that the rapid sinking, while accelerated by the absence of the watertight door, ultimately occurred because a vessel designed to survive flooding of a single compartment sustained damage across two. The watertight door’s absence thus became consequential only within that extraordinary damage scenario, one that exceeded both the vessel’s design basis and the regulatory assumptions then applicable. Within that context, the COI’s finding that the lack of a watertight door contributed to the rapid sinking can be understood as reflecting that extraordinary damage scenario.\n456.\nDuring the Inquest, Mr Chick King Fai said that\nLamma IV\n“never had a chance” in reference to the fact that it was built to a one-compartment flooding standard but suffered a collision involving two compartments. Counsel for the Next of Kin relied on this to argue that the Marine Department still fails to acknowledge past shortcomings. I do not agree with that interpretation. Mr Chick’s remark was a factual description of the reality that the damage sustained by\nLamma IV\nexceeded the vessel’s design standard.\n457.\nOn the evidence,\nLamma IV\n, as a vessel designed to the one-compartment flooding standard, could not have survived the damage sustained in the 2012 collision. Evidence at this Inquest showed that, under the regulatory requirement applicable at the time of design, the aft spaces were required to be assessed together for damage stability purposes. Even if the watertight door at the Frame ½ Bulkhead had been retained, it would not have been taken into account for regulatory assessment and would have had no practical utility except in a casualty scenario beyond that contemplated by the applicable standard.\n458.\nMr Chan See Yin confirmed that\nLamma IV\nwas only required to comply with that standard and was not obliged to meet the higher standard applicable to vessels designed for two-compartment flooding.\n459.\nAccordingly, although the absence of a watertight door at the Frame ½ Bulkhead contributed to the rapid sinking of\nLamma IV\n, it neither constituted a design error nor contravened the applicable regulatory requirements, including the one-compartment flooding standard and the 0.1L Rule.\nL2. Systemic Deficiencies\n460.\nThe significance of the watertight door issue therefore lies not in the absence of the door itself, but in what its absence reveals about the Marine Department’s shortcomings as the regulatory gatekeeper prior to 2012.\n461.\nThe approval of the Revised GA in 1995 shows a reliance on assumption rather than verification. Mr Leung Kwong Chow, Ship Inspector, inserted 15 printed comments, including Comment 2 referring to Blue Book compliance. He explained that these were general remarks relating to routine penetrations for cables and pipes; he did not regard himself as having the authority to approve drawings. Mr Leung had only reviewed Sheet 2 of the Sections and Bulkheads drawing and had not seen Sheet 1, where the Access Opening at the Frame ½ Bulkhead was shown. Therefore, he had no reason to be aware of any inconsistency in the drawings with regard to the watertightness of the Frame ½ Bulkhead. The COI accepted that, having regard only to the material then available to Mr Leung, there was nothing to alert him to the conflict that arose from the drawings.\n[113]\n462.\nMr Wong Chi Kin, who approved the Revised GA, dealt with the comments on that drawing in a manner that shows a shortcoming in the approval process. He approved both the handwritten and the 15 printed comments inserted by Mr Leung Kwong Chow on the Revised GA.\n463.\nAt the Inquest, Mr Wong accepted that the Revised GA did not show a watertight door at the Access Opening in the Frame ½ Bulkhead. Nevertheless, he explained that he understood such a door would be fitted. That understanding was based on the printed Comment 2 inserted by Mr Leung Kwong Chow, which required compliance with the Blue Book. Mr Wong considered that such compliance required any access opening fitted in a watertight bulkhead to be provided with an efficient closing appliance.\n464.\nIn reaching that view, Mr Wong relied on other drawings which showed the Frame ½ Bulkhead to be watertight. Taken together with the requirement in paragraph 12(v) of the Blue Book, he therefore assumed that the Access Opening at the Frame ½ Bulkhead would be fitted with a watertight door, notwithstanding that no such door was shown on the Revised GA.\n465.\nAlthough both Mr Leung and Mr Wong were concerned with ensuring watertight integrity, the purpose for which Comment 2 was inserted by Mr Leung differed from the purpose for which Mr Wong later relied upon it. Mr Leung’s concern was directed to hull penetrations, whereas Mr Wong understood the same comment as addressing the Access Opening in the Frame ½ Bulkhead. As a result, Comment 2 was capable of having different meanings to different officers within the approval chain.\n466.\nThis shows a systemic deficiency in which broad, generalised references to Blue Book compliance, including numerous and disparate requirements, were treated as a substitute for clear, drawing-specific identification of critical watertight features. Where the fitting of a watertight door was intended, it should have been explicitly shown on the approved drawing, rather than left to assumption and expectation.\n467.\nThe Safety Plan, approved by Mr Wong on 4 March 1996, showed in detail\nLamma IV\n’s internal arrangements, including the seating layout, the location of the engines in the Engine Room, the bench table and berth in the Crew Space, and the locations of tanks in the Tank Room. The Underdeck Plan also identified the locations of safety equipment within the hull, including dry powder and foam fire extinguishers, smoke detectors and fire hydrants. Taken together, this demonstrated that the layout of the underdeck spaces was being presented on an “as fitted” basis.\n468.\nThe same plan clearly showed an Access Opening between the Steering Gear Compartment and the Tank Room without any watertight door. Given the level of detail shown, the absence of a watertight door at that location should reasonably have been apparent. Nevertheless, despite his expectation at the time of approving the Revised GA in May 1998, that a watertight door would be fitted at the Access Opening, Mr Wong approved the Safety Plan without raising any query, making any annotation, or requiring that such a door be fitted.\n469.\nIn these circumstances, the depiction of an Access Opening between the Steering Gear Compartment and the Tank Room was inconsistent with any earlier expectation that a watertight door would be installed. The omission of such a door on a Safety Plan that otherwise recorded detailed safety arrangements should have prompted inquiry or clarification as to whether a watertight door had in fact been intended.\n470.\nAt the Inquest, Mr Wong stated that he nonetheless expected the Access Opening shown on the Safety Plan to comply with the Blue Book and to be fitted with a watertight door. In matters of safety, however, an expectation that is neither recorded nor raised on the approved Safety Plan cannot be relied upon.\n471.\nA similar pattern of approval based on assumptions rather than verification is also seen in the Marine Department’s handling of the 1996 Damage Stability Calculations. Those calculations, prepared by Mr Cheung Fook Chor, incorrectly treated the Steering Gear Compartment and the Tank Room as separate watertight spaces and omitted application of the 0.1L Rule. These errors were not identified at the time of approval, although Lamma IV nonetheless met the one-compartment flooding standard then applicable.\n472.\nMr Ho Kai Tak, a ship inspector of the Marine Department who witnessed the Inclining Experiment of Lamma IV on 31 January 1996 and examined the 1996 Damage Stability Information Booklet submitted by Cheoy Lee, proceeded on the assumption that there was a watertight bulkhead between the Steering Gear Compartment and the Tank Room. That assumption was derived from the Revised GA and from the understanding that any access opening in a watertight bulkhead would be required to be sealed by a watertight door. On that basis, Mr Ho marked the 1996 Damage Stability Information Booklet “Seen” on 26 July 1996.\n473.\nMr Ho did not attend the Inquest and declined to provide any information to the Police.\n[114]\nHis evidence was therefore derived from what he said at the COI.\n[115]\nMr Ho said he was not aware of the 0.1L Rule. In line with that, he did not apply the 0.1L Rule, nor did he notice that it had not been applied in the submitted calculations. He also did not notice that the 1996 Damage Stability Information Booklet incorrectly stated the length of the Steering Gear Compartment as 0.87 metres, when in fact it was 1.625 metres.\n474.\nThe endorsement of the 1996 Damage Stability Information Booklet by Mr Leung Wai Hok, Surveyor of Ship of the Marine Department, likewise proceeded on the assumption that the Steering Gear Compartment and the Tank Room were separated by a watertight bulkhead. No step was taken at that stage to verify whether that assumption accorded with the vessel’s actual configuration. Like Mr Ho, Mr Leung was not alerted to the fact that the calculations did not apply the 0.1L Rule nor did Mr Leung consider applying it when endorsing the 1996 Damage Stability Information Booklet.\n475.\nWhen 8.25 tonnes of lead ballast were added in 1998, the 1996 Damage Stability Calculations were reused as a template, thereby repeating the same underlying errors. Mr Mak Yat Wai, the ship inspector who witnessed the Inclining Experiment on 2 April 1998, proceeded on the assumption that, as Lamma IV was not a new vessel, it had been constructed in accordance with the approved drawings. He accepted the 1998 Damage Stability Information Booklet, which treated the vessel as having six watertight compartments, and entered the data into the Marine Department’s stability software, producing a printout for onward submission. At the Inquest, Mr Mak accepted that he did not know of the 0.1L Rule in 1998 and only became aware of it after the 2012 collision.\n476.\nThe calculations and printout prepared by Mr Mak were subsequently endorsed by Mr Choi Chi Chuen, Surveyor of Ships. Although Mr Choi was aware of the 0.1L Rule, he did not identify any issue arising from its application to Lamma IV, being satisfied that the calculations showed a positive metacentric height value in excess of 0.05 metres and that the margin line was met for each compartment. He assumed that compliance with the applicable stability requirements had been addressed by the ship inspector and, on that basis, endorsed the Damage Stability Information Booklet with the “Seen” chop on 13 January 1999. He also did not notice that the length of the steering gear compartment was stated as 0.87 metres, when it should have been 1.625 metres.\n477.\nThe recorded lightship weight after the 1998 ballast addition was illogically lower than the 1996 figure. No follow-up occurred. This illustrated a reliance on previous documents as authoritative without checking whether they remained accurate.\n478.\nThe approval of the 1998 Damage Stability Calculations therefore repeated the same pattern of approval based on assumptions rather than verification, with reliance placed on prior approvals, without identification of the continued non-application of the 0.1L Rule or reconsideration of the compartmental assumptions underlying the calculations.\n479.\nThe same pattern is evident in the approval of the 2005 Stability Booklet following the raising of lead ballast. Mr Chau To Yui, ship inspector, attended the Inclining Experiment on 19 July 2005. The Stability Booklet dated 21 July 2005 was prepared by Mr Kwong Hing Yin of Cheoy Lee on the basis of information provided by Mr Cheung Fook Chor and proceeded on the assumption that all six compartments were watertight. On that basis, the calculations produced a satisfactory residual metacentric height and showed that the margin line was not submerged. Mr Kwong stated that he was not aware of the 0.1L Rule, and the COI accepted that it was reasonable for him to rely on information provided by Mr Cheung Fook Chor.\n[116]\n480.\nMr Chau To Yui checked the 2005 calculations against the 1998 Stability Booklet and identified no issue of significance other than changes to the lightship weight and vertical centre of gravity, which he drew to the attention of his superior, Mr Barry Liu Chiu Fai, then Senior Surveyor of Ships. Mr Liu vetted and approved the 2005 Stability Booklet, being satisfied that the residual metacentric height exceeded 0.05 metres and that the margin line requirement was met, and noting no inconsistency with the earlier calculations. Although Mr Liu was aware of the 0.1L Rule, he was not alerted by the contents of the 2005 Stability Booklet to any issue arising from its application, accepting that he relied on what had gone before.\n481.\nThe approval of the 2005 Stability Booklet therefore proceeded on the same underlying assumptions as the earlier approvals, with reliance placed on prior calculations and acceptance of satisfactory metacentric height and margin line values, rather than verification of whether the compartmental assumptions on which the calculations were based remained valid or whether the 0.1L Rule required reconsideration.\n482.\nAs a result, assumptions replaced confirmation. There was no effective internal safeguard to prevent technical errors from being repeated. From 1996 to 2005, the same fundamental error of treating the Steering Gear Compartment and the Tank Room as separate watertight compartments was repeated in every set of calculations without detection. The mandatory 0.1L Rule was never applied. The approval process failed to operate as an effective check against those errors.\n483.\nIn 1996, both the mistaken assumption that the Steering Gear Compartment and the Tank Room were separated by a watertight bulkhead, and the failure to apply the 0.1L Rule\n,\nhad no practical effect on Lamma IV’s compliance with the one-compartment flooding standard. At that stage, Lamma IV satisfied the damage stability requirements then in force. However, after the addition of lead ballast in 1998, those same errors became material. As a result, Lamma IV, which had been compliant upon construction, became non-compliant following modification in 1998, yet continued in passenger service under a false assurance of safety.\n484.\nHowever, the systemic deficiency of the Marine Department did not lie in its failure to convert Lamma IV into a two-compartment flooding vessel. The expert evidence, including that of Dr Armstrong and Mr Anthony York, was clear that, having regard to the 0.1L Rule, such a course was neither required by the applicable regulatory standards nor achievable by the simple addition of a watertight door at the Frame ½ Bulkhead.\n485.\nEven if the contradictions in the drawings and the errors in the Damage Stability Calculations had been identified at the time, whether arising from Mr Cheung Fook Chor’s work or otherwise, the appropriate regulatory response would not have been to seek to confer two-compartment survivability on Lamma IV. The corrective steps would instead have been directed to restoring and ensuring compliance with the one-compartment flooding standard applicable to the vessel.\n486.\nAccordingly, the real systemic deficiency of the Marine Department was not its failure to ensure that Lamma IV was a two-compartment flooding vessel capable of surviving a two-compartment damage scenario, but the mistaken assurance it gave, namely that\nLamma IV\ncontinued to comply with the one-compartment flooding standard after 1998.\nL3. Measures and Reforms since the COI\n487.\nMr Chan See Yin, provided a comprehensive account of the reforms implemented by the Marine Department following the Lamma IV tragedy. These included reforms to its training, licensing, survey and safety practices.\n488.\nThe Fast Speed Passenger Vessel Scheme, effective from January 2023, replaced the former experience requirement for high-speed vessels with a competency-based system. Coxswains and engine operators on vessels above 20 knots must now complete crisis-management training, in-house assessments, a navigation attitude course, and hold a Fast Speed Passenger Vessel endorsement.\n489.\nLicensing and manning requirements have also been tightened. High-speed vessels must carry a certificated coxswain with the Fast Speed Passenger Vessel endorsement, and a radar-trained operator must be on board whenever the vessel is underway. Vessels carrying more than 100 passengers, and all high-speed craft, must carry an additional lookout in accordance with the revised Code of Practice issued in November 2014.\n490.\nTo improve construction oversight, an Inspection Testing Plan was introduced in August 2025 for Class I passenger vessels and certain Class II cargo vessels, requiring all inspections and tests during construction to be planned and documented before the initial survey. The Certificate of Survey has also been updated to record clearly the date and nature of periodic surveys within the cycle.\n491.\nBetween 2012 and 2016, the Department reviewed and implemented recommendations from the COI, the Secretary for Transport and Housing, external experts, and independent reviewers. These measures led to improvements in plan approval, survey standards, navigation practices, crew training, manning and equipment requirements.\n492.\nMr Chan described a comprehensive enhancement of the Department’s training and competency regime. A multi-layered system has been implemented to ensure technical proficiency and professional accountability among ship inspectors. This includes a structured induction programme, competency schemes specific to new construction and existing vessel surveys, and a Naval Architecture Mentorship Programme introduced in 2022 to strengthen specialist expertise. He further noted that surveyors and inspectors are now subject to defined entry requirements, mandatory assessments, and confirmatory training before assuming approval responsibilities.\n493.\nMr Chan also reported on three major initiatives demonstrating the Department’s ongoing commitment to marine safety:\n1. The establishment of a Local Safety Management (LSM) regime for local vessels, implemented on a voluntary basis from the third quarter of 2024.\n2. The revalidation of Local Certificates of Competency (LCOC) with mandatory medical fitness assessments for coxswains from June 2025.\n3. The enactment of the Marine Safety (Alcohol and Drugs) Ordinance\n,\neffective from 1 January 2025, following extensive public consultation and legislative work.\n494.\nFollowing the findings of the COI, Cheoy Lee also implemented a series of internal reforms to strengthen design control, quality assurance, and accountability in the vessel construction process. First, Cheoy Lee introduced a mandatory written communication protocol for all design changes. Any alteration to the approved design of a vessel, however minor, must be conveyed to the vessel owner in writing. This ensures that no modification proceeds on verbal instruction and that all parties remain informed of any change in design intent. Secondly, Cheoy Lee instituted a system of verification, requiring both the Head of the Design Department and the Head of the Engineering Department to confirm that each vessel is constructed in accordance with contractual specifications and the plans approved by the Marine Department. Thirdly, Cheoy Lee and its associated shipyard have obtained ISO 9001:2015 and ISO 45001:2018 certification for management system standards, confirming that they have established and maintained effective systems for the design, construction, and servicing of steel, aluminium, and fibreglass composite vessels and their associated components. These certifications demonstrate the adoption of recognised international benchmarks for quality and occupational safety management.\n495.\nIn addition, Cheoy Lee has established an internal control system for verifying stability calculations. Under this process, the employee responsible for preparing stability data is provided with a full set of approved drawings for cross-referencing. The Head of the Design Department conducts independent checks of the stability calculations against those drawings, and further verification is carried out through site inspections to ensure that the calculations correspond to the vessel’s as-built configuration.\n496.\nHongkong Electric has since introduced several measures to strengthen the safety of its new launches. For vessels launched after\nLamma IV,\nHongkong Electric has introduced several safeguards: the positions of bulkheads separating each watertight compartment are now marked externally on the hull, with additional rubber fenders fitted to reduce the risk of simultaneous damage to adjacent compartments; and an independent naval architect is engaged to review and cross-check the static, dynamic and damage stability of every new vessel, providing an added layer of technical assurance at the design stage.\nM. Recommendations\n497.\nIt is acknowledged that many of the deficiencies exposed by the Inquest related to practices that occurred between ten and thirty years ago. It is also recognised that substantial progress has since been made by Hong Kong Electric, Cheoy Lee and notably, the Marine Department.\nM1. Marine Department\n498.\nIn light of the extensive reforms carried out by the Marine Department following the reports of the COI, the Transport and Housing Bureau,\n[117]\nand various experts and professionals in the field, the recommendations that follow do not call for major new changes. They are intended to fine-tune what is already in place, so that the improvements made over the past years continue to operate effectively in day-to-day practice.\n499.\nThe following recommendations are made to the Marine Department:\n(1) The Marine Department to continue regular engagement with shipbuilders, operators and professional bodies to ensure that the practical application of rules and regulations is clearly understood. This may include issuing simple guidance notes or clarification where recurring areas of misunderstanding are identified.\n(2) The Marine Department to implement a declaration system requiring vessel owners, before each periodical survey, to confirm whether any alterations have been made since the previous survey, so that modifications are properly recorded and regulated.\n(3) The Marine Department, in consultation with major ferry operators, continue to review the working hours and rest arrangements of seafarers. This review should concentrate on identifying fatigue risks observed in day-to-day operations instead of introducing new fixed rules.\n(4) The Marine Department should continue to use the Local Vessels Advisory Committee as the forum for ongoing discussion of seafarers’ working hours and rest arrangements. In doing so, the Marine Department should ensure that the Committee’s discussions remain focused on fatigue risks observed in day-to-day ferry operations, the practical effectiveness of existing working arrangements, and the experience of operators and seafarers.\nM2. Cheoy Lee and Other Shipyards Constructing Class 1 vessels\n500.\nAny recommendations for Cheoy Lee would have limited value if they were confined to a single shipyard. Other than Cheoy Lee, there are other shipyards that also design and construct Class I vessels in Hong Kong. The matters identified in this Inquest would not be unique to Cheoy Lee. While the other shipyards were not parties to this Inquest, the following recommendations can be brought to their attention through the Marine Department, as the regulatory body responsible for plan approval, surveys and oversight of new vessel construction. Circulating these recommendations through the Marine Department would allow these recommendations to be applied to all shipyards engaged in the construction of Class I vessels.\n501.\nThe following are recommendation to Cheoy Lee and all shipyards constructing Class 1 vessels:\n(1) The shipyard to notify the Marine Department of any alteration made to a vessel after construction approval, irrespective of whether the change affects the vessel’s structure or stability.\n(2) The shipyard to adopt a formal “Inspection and Test Plan” (“ITP”) for every vessel under construction. The ITP should provide a comprehensive list of all items requiring inspection and testing, specifying the method, timing and responsible personnel for each stage.\n(3) The shipyard to maintain a clear and up-to-date organisational chart that defines the duties and reporting lines of staff involved in vessel design, stability calculations and construction supervision, so that staff understand their respective responsibilities.\n(4) The shipyard to implement and maintain a Document Control System to ensure that all design and construction drawings are properly updated and cross-checked.\n(5) The shipyard to maintain a central archive of all design drawings, stability data, approval correspondence and inspection records for the full-service life of each vessel and ensure that these records are readily accessible to staff responsible for stability calculations.\nM3. Hongkong Electric\n502.\nHongkong Electric was the owner and end-user of Lamma IV at the time of the accident. The Court makes the following recommendation for Hongkong Electric, notwithstanding it has since engaged its own independent marine consultant:\n(1) Hongkong Electric to establish a formal Vessel Acceptance and Handover Procedure to ensure that every new vessel is independently verified for compliance with contractual specifications and Marine Department-approved drawings. The verification should confirm that the as-built condition matches the approved plans, with particular attention to watertight integrity and stability features.\nM4. HKKF and Other Licensed Ferry Operators Providing Scheduled Passenger Services of Comparable Capacity\n503.\nThe Court recognises that shortage of manpower is a genuine and persistent problem, compounded by HKKF’s duty to meet the scheduled services required under its Transport Department licence to serve the outlying-island communities. There was evidence that manpower shortage has been an industry-wide issue affecting the local passenger ferry sector. The Court therefore accepts that this is a complex issue involving multiple stakeholders and regulatory, operational and socio-economic considerations, many of which fall outside the scope of this Inquest.\n504.\nThe following recommendations to HKKF and other licensed ferry operators providing scheduled passenger services of comparable capacity (“the Relevant Operators”) are directed at promoting vigilance, continuing dialogue and the development of measures to manage fatigue proactively within the constraints of operational reality:\n(1) The Relevant Operators to reinforce fatigue-awareness among its seafarers through periodic briefings, ensuring that coxswains and crew are fully aware of the risks of working while fatigued and of their responsibility to declare unfitness for duty when necessary.\n(2) The Relevant Operators to maintain open channels for seafarers to raise fatigue-related concerns without fear of penalty, ensuring concerns can be reported at any time.\n(3) The Relevant Operators to implement a routine process for gathering feedback from its seafarers on working hours and fatigue, so that the issue remains actively monitored.\n(4) The Relevant Operators to continue to provide regular navigation and radar training for its coxswains and crew, reinforcing safe operating practices appropriate for high-speed passenger vessels.\nN. Referral to the Department of Justice\n505.\nDuring the Inquest, a significant inconsistency arose between the evidence given by Mr Leung Wai Hok, Senior Surveyor of Ships of the Marine Department, and the account he had provided in his 2013 witness statement\n[118]\nand oral evidence before the COI.\n[119]\nAt the Inquest, Mr Leung said he had no knowledge of the 0.1L Rule in 1996, had never applied it, had not taken part in drawing approval, and only learnt about the 0.1L Rule after the 2012 collision. He also said that, at the time, he was new to the Marine Department, did not understand the system and that the Damage Stability Booklet had simply been placed in his tray. This is very different from the evidence he gave in 2013. In his COI witness statement and oral evidence, Mr Leung described his duties as a Surveyor of Ships, including supervising ship inspectors, vetting plans and stability calculations, and carrying out certification work. He said he had checked and vetted the Inclining Experiment and Stability Calculation Booklet and the Damage Stability Information Booklet for\nLamma IV\nin 1996 and accepted that the signatures dated 26 July 1996 were his. He also gave a clear explanation of the 0.1L Rule, cited paragraph 15 of the Blue Book and accepted that the 0.1L Rule applied to\nLamma IV\n.\n506.\nHe further explained to the COI that although the Damage Stability Booklet treated the Steering Gear Compartment and Tank Room as separate spaces, he had considered three possible courses of action and chose to assess whether the vessel would still meet the stability requirement if the two spaces were treated as a single compartment. He said he believed it would, based on the metacentric height figures, the compartment volumes, and the large reserve margin in freeboard. When this earlier evidence was put to him at the Inquest, he could not explain why he had said he was unaware of the 0.1L Rule and claimed he could not recall whether he had known of it or not.\n507.\nGiven Mr Leung’s qualifications as a naval architect, his previous work as a Ship Surveyor with Lloyd’s Register of Shipping and the clarity of his earlier statement and evidence on the 0.1L Rule, the Court considers that this inconsistency cannot reasonably be explained as a lapse of memory or a misunderstanding. The contradiction raises a serious question as to whether the evidence he gave under affirmation at the Inquest was truthful. In these circumstances, I consider it appropriate to refer the matter to the Department of Justice for such consideration and action as it may think fit.\nO. Epilogue\n508.\nThe Court acknowledges the profound loss suffered by the families and loved ones of the 39 persons who perished in this disaster. No verdict or recommendations can erase that loss, but it is hoped that the findings of this Inquest will provide some measure of understanding and assurance that lessons have been learned.\n509.\nWith the conclusion of this Inquest, it is hoped that the 39 lives lost on 1 October 2012 will continue to remind all concerned, builders, regulators, operators and the community, of the continuing obligation to maintain the highest standards of maritime safety and vigilance.\n510.\nFinally, the Court expresses its gratitude to the experts for their contributions, the Hong Kong Marine Police for their investigation, and the Coroner’s Officers, counsel and solicitors for their conduct and assistance in this case involving complex shipping technicalities.\nMonica Chow\nCoroner\nMr Andrew Li Hay Chit, SPP, and Mr Bryan Fung Yung Yu, PP, appearing as Coroner’s Officers\nMr Jeffrey Tam and Mr Colman Li, instructed by Messrs Ho Tse Wai & Partners assigned by the Director of Legal Aid for the next of kin of Au Hiu Lam, Wong Lai Chun, Tsui Chi Wai, Leung Ka Kit, Li Wing Mui, Chiu Siu King and Tsui Hoi Ying\nMs Deanna Law and Ms Nicole Chui, instructed by Department of Justice for the Director of Marine\nMr Jonathan Chang, SC and Mr Arthur Poon, instructed by Messrs. Wilkinson & Grist for Cheoy Lee Shipyards Ltd\nMr Donald Sham and Ms Gabriel Wan, of Messrs. Reed Smith Richards Butler LLP for The Hongkong Electric Company, Limited\nMs Nicola Hui and Mr Tam Siu Hong, of Messrs. Holman Fenwick Willan for Hong Kong & Kowloon Ferry Limited\nAnnex\n[1]\nLeung Shuk Ling and Coroner\n[2023] 4 HKLRD 264\n.\n[2]\nHKSAR v Chow Chi Wai & Anor\n(HCCC 458/2013, 16 February 2015);\nHKSAR v Wong Kam-ching\n(DCCC 337/2015, 1 February 2016);\nHKSAR v So Ping Chi\n(DCCC 338/2015, 7 June 2016).\n[3]\nCap 504\n.\n[4]\nLeung Shuk Ling and Coroner\n[2022] 5 HKLRD 1025\n.\n[5]\nCap 174\n.\n[6]\nDr Peter Cheng’s reports dated 21 January 2013 (Exhibit C189A), 29 January 2013 (Exhibits C189B and C189C).\n[7]\nCOI evidence, Days 24, 25, 26, 27, 28, 46, 47 and 48 (Exhibit C217).\n[8]\nMr William Boyd’s report dated 14 August 2024 (Exhibit C221B).\n[9]\nAutopsy Reports (Exhibits C160A-D; C161A-C; C162A-F; C163A-E; C164A-F; C165A-E; C168A-D; C169A-F). Toxicology Reports (Exhibits C175A-O; C176A-L; C177A-K).\n[10]\nCase No. CCDI 1093/2012.\n[11]\nCase No. CCDI 1094/2012.\n[12]\nCase No. CCDI 1101/2012.\n[13]\nCase No. CCDI 1102/2012.\n[14]\nCase No. CCDI 1113/2012.\n[15]\nAutopsy Reports (Exhibits C160C-D; C161A-C; C162A-F; C163A-E; C164A-F; C165A-E; C168A-D; C169A-E).\n[16]\nAutopsy Report (Exhibit C160A).\n[17]\nAutopsy Report (Exhibit C160B).\n[18]\nAutopsy Report (Exhibit C169F).\n[19]\nHKSAR v Chow Chi Wai and Another\n, HCCC 458/2013.\n[20]\n[2021] AC 454\n.\n[21]\n“Class III waters” referred to the Waters of the Colony, i.e. Hong Kong waters, constituting the plying limits within which launches and ferries were licensed to operate under the Blue Book classification and the First Schedule to the\nMerchant Shipping (Launches and Ferry Vessels) Regulations\n(\nCap. 313E\n).\n[22]\n“Steering flat” and “Steering gear” are interchangeable terms for the same space.\n[23]\nCap 313E\n.\n[24]\n“Frame ½ Bulkhead” and “bulkhead at Frame ½” are used interchangeably in this Verdict.\n[25]\nLamma IV\nmeasured 28 metres (approximately 92 feet) and therefore fell within the ‘over 70 feet’ category.\n[26]\nCap 369AM\n.\n[27]\nParagraph 1(2) of\nSchedule 1\n,\nCap 369AM\n.\n[28]\nParagraph 9 of Dr Armstrong’s report dated 25 January 2013(Exhibit C182C).\n[29]\nParagraph 57 of Dr Armstrong’s report dated 3 January 2013 (Exhibit C182A).\n[30]\nCOI evidence, Day 24 (Exhibit C217, pages 113-117).\n[31]\nFax dated 1 August 1994 from the Marine Department to Meyjes Design, a Singapore shipbuilder, dealing with stability requirements for ferry vessels, enclosing Schedule 3 showing the removal of the formula in paragraph 1(3)(a) and its replacement with a requirement for one-compartment flooding (marked for identification as “MFI-4” at the Inquest).\n[32]\nRegulation 1\nof\nCap 369AM\ndefined margin line as a line drawn at least 76 mm below the bulkhead deck at the side of the ship.\n[33]\nParagraphs 7-8 of Dr Armstrong’s report dated 25 January 2013 (Exhibit C182C).\n[34]\nFor Underdeck drawings, “W.T.” denotes ‘watertight’, indicating that the bulkhead was intended to be watertight. The abbreviation “BHD” is commonly used to denote ‘bulkhead’.\n[35]\nThe aft peak compartment refers to the same space as the Steering Gear Compartment.\n[36]\nCOI evidence, Day 18 (Exhibit C96, page 115).\n[37]\nCOI evidence, Day 18 (Exhibit C96, pages 115-116).\n[38]\nCOI evidence, Day 19 (Exhibit C153, pages 111-156).\n[39]\nCOI evidence, Day 19 (Exhibit C153, pages 140-141).\n[40]\nCOI evidence, Day 19 (Exhibit C153, page 142).\n[41]\nJohn Lim’s witness statement dated 25 September 2014 (Exhibit C59).\n[42]\nKC Tan’s witness statement dated 23 October 2014 (Exhibit C60).\n[43]\nRevised GA marked by Mr Cheung Chuen Yau indicating the two inverted shaded triangles (Exhibit C53).\n[44]\nParagraph 64 of Dr. Armstrong’s report dated 3 January 2013 (Exhibit C182A).\n[45]\nCOI evidence, Day 19 (Exhibit C153, pages 149-151).\n[46]\nCOI evidence, Day 19 (Exhibit C153, pages.140-141).\n[47]\nCOI evidence, Day 41 (Exhibit C155).\n[48]\nMr Cheung Fook Chor’s witness statements dated 4 December 2013 (Exhibits C56A), 12 May 2014 (Exhibit C56B) and 20 May 2014 (Exhibit C56C).\n[49]\nCOI evidence, Day 41(Exhibit C155, page 81).\n[50]\nEnglish translations of the fax correspondence (Exhibit C219).\n[51]\nMr Fung Kai Ming’s witness statements dated 30 May 1994 (Exhibits C57A and C57B) and 31 July 1994 (Exhibits C57C and C57D).\n[52]\nParagraphs 64-67 of Dr Armstrong’s report dated 3 January 2013 (Exhibit C182A).\n[53]\nCOI evidence, Day 28 (Exhibit C217, pages. 49-52).\n[54]\nParagraphs 46-83 of Dr Renilson’s report dated 6 December 2024 (Exhibit C218A).\n[55]\nParagraphs 63-68 of Dr Renilson’s report dated 6 December 2024 (Exhibit C218A).\n[56]\nParagraphs 7- 48 of Mr Simon Burthem’s report dated 10 March 2025 (Exhibit 221A).\n[57]\nParagraphs 2.10-2.14 of Mr Robert Vart’s reports dated 28 February 2025 (Exhibit C211C), paragraphs 1.1-1.9 of Mr Vart’s report dated 31 March 2025 (Exhibit C211D).\n[58]\nMr Anthony York’s report dated 23 January 2013 (Exhibit C230).\n[59]\nGeneral Arrangements drawings of two Catamarans designed by Incat Crowther (Exhibits C119 and 120).\n[60]\nDamage Stability Information of 30m Catamaran Passenger Ferry “Sea Superb 海永” (Exhibit C121).\n[61]\nKen Lo’s witness statement dated 16 January 2013 (Exhibit C97).\n[62]\nIn Ken Lo’s witness statement, the term “Aft Peak” was used to refer to the Steering Gear Compartment.\n[63]\nCOI evidence, Day 18 (Exhibit C96, page 106).\n[64]\nCOI evidence, Day 24 (Exhibit C217, pages 93-95).\n[65]\nParagraph 234 of the COI Report.\n[66]\nKen Lo is a Fellow of the Royal Institution of Naval Architects (UK); Fellow of the Institute of Marine Engineering, Science and Technology (UK); Fellow of the Hong Kong Institution of Engineers; a Chartered Engineer (UK); and a Registered Professional Engineer (Hong Kong).\n[67]\nCOI evidence, Day 18 (Exhibit C96, page 106).\n[68]\nParagraph 13(1) of Mr Leung Wai Hok’s witness statement dated 14 January 2013 (Exhibit C166).\n[69]\nParagraph 15 of Mr Liu Chiu Fai’s witness statement dated 16 January 2013 (Exhibit C187).\n[70]\nParagraph 15 of Mr Choi Chi Chuen’s witness statement dated 16 January 2013 (Exhibit C188).\n[71]\nCOI evidence, Day 28 (Exhibit C217, page 28).\n[72]\nCOI evidence, Day 48 (Exhibit C217, pages 2 - 4).\n[73]\nParagraph A-44 of Dr Armstrong’s report dated 5 March 2013 (Exhibit C182E).\n[74]\nCOI evidence, Day 24 (Exhibit C217, pages 119-121).\n[75]\nParagraph 10 of Dr Armstrong’s report dated 25 January 2013 (Exhibit C182C).\n[76]\nCOI evidence, Day 24 (Exhibit C217, pages 120-121 and page 127).\n[77]\nParagraph 50 of Dr Renilson’s report dated 6 December 2024 (Exhibit C218A).\n[78]\nCOI evidence, Day 28 (Exhibit C217, page 21).\n[79]\nParagraph 74 of Dr Armstrong’s report dated 3 January 2013 (Exhibit C182A).\n[80]\nParagraph A-38 of Dr Armstrong’s report dated 5 March 2013 (Exhibit C182E).\n[81]\nEmail exchange between the Marine Department (4 March 2013) and the Maritime and Coastguard Agency (9 March 2013) (Exhibit C193).\n[82]\nCOI evidence, Day 19 (Exhibit C153, page 141).\n[83]\nCOI evidence, Day 19 (Exhibit C153, pages 153-155).\n[84]\nParagraph 32, 10 March 2025 (Exhibit 221A).\n[85]\nCOI evidence, Day 41 (Exhibit C155).\n[86]\nCOI evidence, Day 19 (Exhibit 153, page 147).\n[87]\nMr Cheung Fook Chor’s witness statements dated 4 December 2013 (Exhibit C56A) and 12 May 2014 (Exhibit C56B).\n[88]\nCOI evidence, Day 41 (Exhibit C155, pages 46-117).\n[89]\nWitness statement of Mr Jon Leizaola (Exhibit C58).\n[90]\nDebit Note/Invoice dated 26 September 2012 (Exhibit C199).\n[91]\nDr Cheng Yuk Ki’s report dated 12 December 2012 (Exhibit C215).\n[92]\nRevised GA marked by Mr Simon Burthem, indicating the three External Doors by asterisks in the Maindeck Plan (Exhibit C225).\n[93]\nThe Maritime and Coastguard Agency Guidance (Exhibit C212).\n[94]\nCOI evidence, Day 27 (Exhibit 217, pages 57-58).\n[95]\nCap 478D\n.\n[96]\nCap 478\n.\n[97]\nParagraph 15 of the COI Report.\n[98]\nMarine Accident Investigation Report dated 30 May 2013 (Exhibit C208).\n[99]\nCap 57\n.\n[100]\nConditions of Licence, Ferry Service Licence (Exhibit C227).\n[101]\nParagraph 19 of Dr Armstrong’s report dated 3 January 2013 (Exhibit 182A).\n[102]\nCap 548F\n.\n[103]\nCap 548\n.\n[104]\nCaptain Dominic Bells’ reports dated 16 December 2024 (Exhibit C229A) and 26 March 2025 (Exhibit C229B).\n[105]\nCaptain Jeremy Ayling’s report dated 10 March 2025 (Exhibit C228).\n[106]\nParagraph 59 of Dr Armstrong’s report dated 3 January 2013 (Exhibit C182A).\n[107]\nCOI evidence, Day 26, (Exhibit C217, page 14).\n[108]\nMr Wong Wing Cheun’s 4\nth\nSupplemental Witness Statement dated 25 February 2013.\n[109]\nCOI evidence, Day 27, (Exhibit C217, page 58).\n[110]\nParagraph 25 of Dr Renilson’s Supplemental Expert Witness Report dated 20 December 2024 (Exhibit C218B).\n[111]\nParagraphs 29-31 of Dr Armstrong’s report dated 3 January 2013 (Exhibit C182A).\n[112]\nParagraph 75 of Dr Armstrong’s report dated 3 January 2013 (Exhibit C182A).\n[113]\nParagraph 293 of the COI Report.\n[114]\nMr Ho Kai Tak’s witness statement dated 20 March 2014 (Exhibit C71).\n[115]\nCOI evidence, Day 20 (Exhibit C154, pages 61-102) and Day 21 (Exhibit C167, pages 2-11).\n[116]\nParagraph 309 of the COI Report.\n[117]\nReport of The Transport and Housing Bureau’s Investigation into Staff Conduct in the Marine Department in relation to the Vessel Collision Incident near Lamma Island on 1 October 2012 (Exhibit C194)\n[118]\nWitness statement of Leung Wai Hok, 14 January 2013 (Exhibit C166).\n[119]\nCOI evidence, Day 21 (Exhibit C167, pages 11-53).", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2012/CCDI001075B_2012.docx", + "file_name": "CCDI001075B_2012.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkct/2018_HKCT_4/case.json b/en_cases_hkct/2018_HKCT_4/case.json new file mode 100644 index 0000000..c0e02e3 --- /dev/null +++ b/en_cases_hkct/2018_HKCT_4/case.json @@ -0,0 +1,26 @@ +{ + "Date": "12 Sep, 2018", + "Action No.": "CTA1/2018", + "Neutral Cit.": "[2018] HKCT 4", + "case_title": "TACHING PETROLEUM CO LTD V. MEYER ALUMINIUM LTD", + "page_title": "TACHING PETROLEUM CO LTD V. MEYER ALUMINIUM LTD | [2018] HKCT 4 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "CTA1/2018", + "link": "https://www.hklii.hk/en/appealhistory/CTA/2018/1" + } + ], + "case_url": "https://www.hklii.hk/en/cases/hkct/2018/4", + "neutral_cit": "[2018] HKCT 4", + "court_code": "HKCT", + "content": "CTA1/2018 TACHING PETROLEUM CO LTD v. MEYER ALUMINIUM LTD\nCTA 1/2018\n[2018] HKCT 4\nIN THE COMPETITION TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOMPETITION TRIBUNAL ACTION NO 1 OF 2018\n____________\nBETWEEN\nTACHING PETROLEUM COMPANY LIMITED\nPlaintiff\nand\nMEYER ALUMINIUM LIMITED\nDefendant\nand\nSHELL HONG KONG LIMITED\nIntended\nIntervener\n____________\nBefore: Hon Au-Yeung J in Chambers\nDate of Hearing: 7 September 2018\nDate of Decision: 7 September 2018\nDate of Reasons for Decision: 12 September 2018\n_________________________________\nREASONS FOR DECISION\n_________________________________\nIntroduction\n1.\nTaching and Shell were dealers in fuel oil. They commenced separate actions in HCA 1929/2017 (“\nthe Taching Action\n”) and HCA 1069/2018 (“\nthe Shell Action\n”) respectively, to sue\nMeyer\nfor diesel oil sold and delivered.\n2.\nMeyer raised a common defence in both Actions, alleging that Taching and Shell colluded in price fixing over the years in breach of the First Conduct Rule (“\nthe Allegation\n”) under the\nCompetition Ordinance\n,\nCap 619\n(“\nCO\n”).\n3.\nG Lam J has transferred the Allegation in the Taching Action to this Tribunal. This hearing was the case management conference, which was listed for hearing with the Taching Action.\n4.\nShell has previously applied to intervene but agreed to withdraw the application after having sight of Meyer’s defence in the Shell Action. Shell and Meyer agreed to have the Shell Action transferred to the Tribunal (“the Transferred Action”). The Tribunal also gave directions regarding the Shell Action immediately upon transfer.\n5.\nMost of the directions had been agreed except the following:\n(1) whether Meyer should file an originating notice of application (“\nONA\n”);\n(2) whether Meyer should file pleadings in the Competition Tribunal;\n(3) whether Meyer should be given general leave to file a rejoinder;\n(4) whether the remainder of the High Court Actions should be consolidated or tried together with the proceedings at the Tribunal;\n(5) who should bear costs for Shell’s application for intervention in the Taching Action; and\n(6) whether there should be separate orders for the Tribunal and the High Court Actions.\n6.\nAfter the hearing, I directed that Meyer need not file an ONA but it had to file Points of Defence that set out its case on all competition issues. I declined to give general leave to file a rejoinder. I also directed that all four sets of proceedings (ie the Taching Action, CTA 1/2018, the Shell Action and the Transferred Action) be listed and heard together for directions until further order. I ordered that costs of Shell’s application for intervention should be costs in the cause of the Shell Action. Here are my reasons.\nWhether Meyer should file an ONA\n7.\nTaching and Shell suggested that Meyer should file an ONA that fulfilled the requirements of\nrule 74\n(1) of the\nCompetition Tribunal Rules\n(\n“CTR”\n), §§88-89 of the Competition Tribunal Practice Directions CTPD1 and §11(1) of CTPD2.\n8.\nRule 74(1) requires an applicant to set out the grounds and material facts in support of the application together with the relief sought.\n9.\n§§88-89 of CTPD1 requires the ONA to contain also a succinct presentation of the arguments of fact, economics (if applicable) or law supporting the findings and relief sought, so that from the outset the Tribunal and the respondent are apprised of the substance of the case advanced by the applicant. Prolixity in an ONA should be avoided.\n10.\n§11(1) of CTPD2 deals with confidentiality treatment of an ONA.\n11.\nFor two reasons, I do not consider it necessary for an ONA to be filed.\n12.\nFirstly, as Mr Lee and Ms Lui (counsel for Meyer) indicated, Meyer had no relief to seek, not even for a declaration. The defence filed in response to the Shell Action did not even contain a counterclaim. There would thus be no relief for Meyer to seek in the ONA.\n13.\nThe Allegation was the only matter transferred. The Tribunal is only required to find whether such allegation is substantiated or not. Upon the making of the relevant “decision” or “finding” on the Allegation, the CFI will take over and decide the rights of the parties through further proceedings. See s 119 and 149 CO.\n14.\nIn fact, s 108 of CO appears to prohibit the bringing of any private actions in reliance of contravention of competition rules. If so, Meyer would not have a right to seek any relief under s 94 and s 1(a) Schedule 3 to CO, but instead may seek “follow-on” relief under s 110 after the Tribunal has found contravention of a conduct rule.\n15.\nSecondly, proceedings have already been commenced in the High Court and the writ was the originating document. In this respect, I agree with the analyses of Mr Lee as follows.\n16.\n“Originating document” has a prescribed meaning in r 2 of CTR, which means:\n“ (a) an originating notice of application in Form 1 in the Schedule, a notice of application for leave in Form 7 in the Schedule, an originating notice of claim in Form 8 in the Schedule, or any other form that is prescribed in these Rules, by filing of which proceedings are commenced in the Tribunal; or\n(b) for proceedings transferred from the CFI to the Tribunal under section 113 of the Ordinance, a writ of summons, an originating summons, an originating motion or a petition, by filing of which the proceedings were commenced in the CFI”.\n17.\nThe CTR therefore draws a clear distinction between proceedings that are commenced at the Tribunal (which therefore have their respective prescribed originating forms) and proceedings “transferred” to the Tribunal from the CFI (where the originating documents remain to be the writ, etc, in the originating CFI proceedings).\n18.\nFurther, CTA 1/2018 was immediately before the Tribunal upon the making of the transfer order Hon G Lam J on 17 May 2018: r 100(1) CTR. CTA 1/2018 has never been “commenced” by using any originating document prescribed by CTR.\n19.\nIn any case, none of the originating documents in CTR were applicable to Meyer:\n(a) Form 1 was for an application by the Commission for enforcement of a commitment, pecuniary penalty, disqualification order or financial penalty;\n(b) Form 7 was for an application for leave to apply for a review of a reviewable determination is made.\n(c) Form 8 was for the commencement of follow-on actions by private parties.\n20.\nThe true nature of transferred proceedings is for trial of competition issues as preliminary issues. The Competition Appeal Tribunal (“\nCAT\n”) in the United Kingdom in\nAgents’ Mutual Ltd v Gascoigne\nHalman Ltd\n[2017] CAT 22 at [12], stated that:\n“ [12] We consider the appropriate analogy in this case to be the determination of a preliminary issue. The effect of the Transfer Order was to transfer the Competition Issues from the High Court to the Tribunal, which the Tribunal determined as if they were preliminary issues. The unusual feature of the present case is that the preliminary issues (i.e. the Competition Issues) have been determined in the Tribunal, whilst all other issues (i.e. the non-Competition Issues) remain for determination in the Chancery Division.”\n21.\nCompetition issues are special issues that require the determination by a specialist tribunal. Upon resolution of the special issues, the original action can continue with its normal course in the CFI.\nWhether Meyer should file pleadings in this Tribunal\n22.\nMeyer has filed a defence in the Shell Action but not the Taching Action. Meyer suggested using the same defence as filed in the Tribunal proceedings. In fact, on the face of the defence, the Tribunal had no problem segregating the Allegation from other issues in the defence. As Mr Lee submitted, the only material matters raised in the defence related to the Allegation. The delivery and non-payment of goods were not disputed. Mr Lee submitted that the court would not require parties to file new pleadings just for the sake of determining a preliminary issue.\n23.\nShell criticized Meyer’s defence as deficient in material facts, only pleaded evidence and bald assertions. I have reservations as to the correctness of this comment but it was not necessary to decide it at the hearing. There was, however, room for its defence to comply with CTPD1.\n24.\nAs Meyer bore the burden of proof and as a matter of good practice, it should file Points of Defence that clearly delineated all the competition issues, given that the Tribunal only has jurisdiction to deal with “allegations of contraventions, or involvements in contraventions, of the conduct rules raised as a defence”: s 142, CO.\n25.\nAccordingly, I directed Meyer to file Points of Defence (instead of an ONA) that should comply with §§88-89 CTPD1. The Points in Response should likewise comply with §90 (save for the time frame for filing). The pleadings in the High Court Actions can, insofar as competition issues are concerned, be kept succinct (similar to the general endorsement for a writ), only incorporating the pleadings in the Tribunal by reference.\nWhether Meyer should be given general leave to file a rejoinder\n26.\nMeyer has not yet filed a defence in CTA1/2018. Shell has not filed a reply in the Shell Action. Yet Meyer sought leave to file a rejoinder now.\n27.\nIn my view, it was pre-mature to give leave. Although it was Meyer who should first file pleadings in the Tribunal, it remained the defendant. The last word insofar as pleadings were concerned rested with Taching/Shell.\n28.\nMr Lee, however, cited the\nAgents’ Mutual\nin support of his application. With respect to Mr Lee, that case only contained a set of the directions given by CAT. The rationale behind the directions was not stated. That case was not authority to disturb the default position concerning filing of pleadings.\n29.\nThis Tribunal may reconsider the need for a rejoinder upon a proper application in due course.\nWhether the remainder of the High Court Actions should be consolidated, heard together or tried together with the proceedings at the Tribunal\n30.\nThe Allegation appeared to be the only defence. Taching and Shell asked for all the proceedings to be tried together. However, Meyer wanted the High Court Actions to be stayed. It suggested that if, eg the Tribunal found against Meyer on the competition issues, Taching and Shell may enter judgment. On the other hand, if there was finding of breach of the First Conduct Rule, Meyer may start a follow-on action after the Tribunal has given its decision: s 110 and 111 CO. That follow-on action may be tried with the High Court Actions.\n31.\nIt was in my view too early to talk about trying cases together before pleadings were closed. Equally, it was not appropriate for case management to take into account a follow-on action, the cause for which had not even arisen.\n32.\nThe more appropriate order was for the four sets of proceedings to be listed and heard together in the case management stage and stay the High Court Actions, if appropriate, at the next CMC when the issues are defined.\nCosts for Shell’s intervention in the Taching Action\n33.\nShell initially applied to intervene in CTA1/2018 but withdrew the application at this hearing. Shell sought the costs of the hearing on 28 August 2018 when its application was adjourned pending the filing of Meyer’s defence in the Shell Action on 3 September 2018. Shell claimed that if Meyer had given its indication by correspondence that it would run a similar competition defence as in the Taching Action, costs of the hearing could have been saved.\n34.\nHowever, with respect to Ms Sit, the Tribunal had made an order on 28 August 2018 for costs to be in the cause. There was no reservation in the order itself as regards costs of that hearing. Accordingly, the Tribunal declined to make another costs order for that hearing.\n35.\nThe intervention was properly taken out. As Mr Lee agreed, costs of the intervention application should be in the cause of the Shell Action.\nWhether there should be separate orders by the Tribunal and the Court of First Instance\n36.\nMr Lee reminded the Tribunal that although I had dual capacity in making directions for the Tribunal and the Court of First Instance, I should be wary of making a composite set of directions.\n37.\nI agreed. There should be drafting up of the proper orders for the two different courts although the terms would overlap much.\n(Queeny Au-Yeung)\nJudge of the Court of First Instance\nHigh Court\nMs Catrina Lam and Ms Cherry Xu, instructed by Herbert Tsoi & Partners, for Taching, the Plaintiff in CTA 1/2018 and HCA 1929/2017\nMr Kenneth K H Lee and Ms Nana Lui, instructed by Robertsons,\nfor Meyer, the Defendant in all cases\nMs Eva Sit, instructed by Clifford Chance, for Shell, the Intended Intervener in CTA 1/2018 and the Plaintiff in HCA 1069/2018", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2018/CTA000001_2018.docx", + "file_name": "CTA000001_2018.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkct/2020_HKCT_10/case.json b/en_cases_hkct/2020_HKCT_10/case.json new file mode 100644 index 0000000..d322454 --- /dev/null +++ b/en_cases_hkct/2020_HKCT_10/case.json @@ -0,0 +1,26 @@ +{ + "Date": "3 Nov, 2020", + "Action No.": "CTEA1/2020", + "Neutral Cit.": "[2020] HKCT 10", + "case_title": "COMPETITION COMMISSION V. QUANTR LTD AND ANOTHER", + "page_title": "COMPETITION COMMISSION V. QUANTR LTD AND ANOTHER | [2020] HKCT 10 | HKLII", + "case_history": [ + { + "name": "CTEA1/2020", + "link": "https://www.hklii.hk/en/appealhistory/CTEA/2020/1" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkct/2020/10", + "neutral_cit": "[2020] HKCT 10", + "court_code": "HKCT", + "content": "CTEA1/2020 COMPETITION COMMISSION v. QUANTR LTD AND ANOTHER\nCTEA 1/2020\n[2020] HKCT 10\nIN THE COMPETITION TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOMPETITION TRIBUNAL ENFORCEMENT ACTION NO 1 OF 2020\n________________________\nBETWEEN\nCOMPETITION COMMISSION\nApplicant\nand\nQUANTR LIMITED\n1\nst\nRespondent\nCHEUNG MAN KIT\n2\nnd\nRespondent\n________________________\nBefore:\nHon Linda Chan J\nDate of Judgment:\n3 November 2020\n________________________\nJ U D G M E N T\n________________________\n1.\nThere is before the Tribunal a joint application\n[1]\nmade by the Applicant, the Competition Commission (“\nCommission\n”), and the 1\nst\nand 2\nnd\nRespondents, Quantr Limited and Cheung Man Kit, pursuant to\nrule 39\nof the\nCompetition Tribunal Rules\n(\nCap 619D\n) (“\nCTR\n”) for the following Order:\n“1. It is declared that the 1\nst\nRespondent has contravened the First Conduct Rule under\ns.6\nof the\nCompetition Ordinance\n(\nCap. 619\n) (the “\nOrdinance\n”).\n2. It is declared that the 2\nnd\nRespondent is a person involved in the 1\nst\nRespondent’s contravention under s.91 of the Ordinance.\n3. The 1\nst\nRespondent do pay to the Government a pecuniary penalty in the amount of HK$37,702.26.\n4. All further proceedings in this action, in particular, the Applicant’s claim against:\n(i) The 1\nst\nRespondent for an order under s.94(1) and paragraphs 1(a) and 1(c) of Schedule 3 of the Ordinance as set out in paragraph 59 of the Originating Notice of Application (“\nONA\n”);\n(ii) The 2\nnd\nRespondent for:\n(a) a pecuniary penalty under s.93 of the Ordinance as set out in paragraph 61 of the ONA; and\n(b) a director disqualification order under s.101 of the Ordinance as set out in paragraphs 62 – 63 of the ONA; and\n(iii) The 1\nst\nand 2\nnd\nRespondents for an order under s.96(1) of the Ordinance as set out in paragraph 61.2 of the ONA.\nbe stayed upon the terms set out in the Schedule to this Order with liberty to apply as to carrying such terms into effect. For the avoidance of doubt, there be also a liberty to restore the stayed proceedings in the event of any non-compliance of the terms as set out in the Schedule to this Order.\n5. The Respondents do pay the Applicant’s costs of and incidental to these proceedings on a joint and several liability basis. Such costs are to be taxed if not agreed.”\n2.\nThe Schedule referred to in §4 of the proposed Order is reproduced in\nAppendix 1\nto this Judgment. In short, it sets out (1) the actions required to be taken by the 1\nst\nRespondent to ensure that all its current and future staff will have sufficient knowledge of, and will comply with, the competition law in future; and (2) the obligations of the 2\nnd\nRespondent to guarantee and oversee the 1\nst\nRespondent’s implementation of the same.\n3.\nThe proceedings were commenced by the Commission against (1) the 1\nst\nRespondent in respect of an alleged contravention of the First Conduct Rule pursuant to\nsection 6\nof the\nCompetition Ordinance\n(\nCap 619\n) (“\nOrdinance\n”); and (2) the 2\nnd\nRespondent in respect of his involvement in the 1\nst\nRespondent’s contravention under section 91 of the Ordinance.\n4.\nThe background of the proceedings and the factual bases for seeking the proposed Order are stated out in the Statement of Agreed Facts prepared pursuant to rule 39 of CTR and §72 of the Competition Tribunal Practice Direction No 1. The Statement of Agreed Facts, with confidential information replaced by abbreviations, is in\nAppendix 2\nto this Judgment.\n5.\nThe juridical basis and the justifications for adopting the\nCarecraft\nprocedure to dispose of enforcement proceedings commenced by the Commission against respondents who admit liability has been fully considered by Harris J in\nCompetition Commission v Kam Kwong Engineering Company Limited & ors\n[2020] 4 HKLRD 61\n, at §§6-17. For present purposes, the following principles are relevant:\n(1) The justifications for adopting the\nCarecraft\nprocedure, which found its genesis in an application made by the Official Receiver in the UK for an order to disqualify certain persons as directors under the Company Directors Disqualification Act 1986, apply equally to proceedings under the Ordinance.\n(2) The Tribunal must be satisfied that it has the power to make the orders proposed and that the orders are appropriate. Once satisfied, the Tribunal should exercise a degree of restraint when scrutinizing the proposed settlement terms, particularly when both parties are legally represented and are able to evaluate the desirability of settlement.\n(3) In deciding whether the agreed order conforms with legal principle, the Tribunal is entitled to treat the consent of the respondent as an admission of all facts necessary to the granting of relief sought against it. The same applies to declarations sought by consent.\n6.\nSection 94(1) of the Ordinance provides that:\n“If the Tribunal is satisfied that a person has contravened, or been involved in a contravention of a competition rule, it may (whether or not it makes make any order under section 93 imposing a pecuniary penalty), either of its own motion or on application made for this purpose, make any order it considers appropriate against that person, including all or any of the orders specified in Schedule 3.”\n7.\nThe range of orders which may be made by the Tribunal, as specified in Schedule 3, include a declaration of contravention, an order restraining conduct that constitutes contravention, an order requiring the disposition of operations, assets or shares of any undertaking, an order declaring an agreement to be void or voidable or requiring the parties to modify or terminate it, and an order requiring any person who has contravened or been involved in the contravention to do or refrain from doing anything specified in the order.\n8.\nAs stated in the Statement of Agreed Facts, the contravention of the First Conduct Rule involved the 1\nst\nRespondent (acting by the 2\nnd\nRespondent) engaged in communications with, and eventually made and given effect to an agreement or engaged in concerted practice with another company (“\nX\n”) whereby they exchanged details of their respective quotations (including price sensitive information) and coordinated their return bids pursuant to a request for quotation exercise undertaken by Ocean Park Corporation (“\nOcean Park\n”) to carry out a workflow automation project through a Nintex software (“\nProject\n”). The agreement and concerted practice between the 1\nst\nRespondent and X had the object of preventing, restricting, or distorting competition in relation to the quotation exercise undertaken by Ocean Park and constituted price fixing, which is one of the “serious anti-competitive conducts” as defined in section 2(1) of the Ordinance.\n9.\nI am satisfied that on the facts as admitted by the 1\nst\nand 2\nnd\nRespondents in the Statement of Agreed Facts, the 1\nst\nRespondent contravened the First Conduct Rule and the 2\nnd\nRespondent was involved in such contravention. It is appropriate to make the declarations sought in §§1-2 of the proposed Order.\n10.\nAs regards §3 of the proposed Order, the power to impose a pecuniary penalty is conferred by section 93(1) of the Ordinance which provides as follows:\n“If the Tribunal is satisfied, on application by the Commission under section 92, that a person has contravened or been involved in a contravention of a competition rule, it may order that person to pay to the Government a pecuniary penalty of any amount it considers appropriate.”\n11.\nThe approach of the Tribunal in determining the amount of penalty has been stated by Godfrey Lam J in\nCompetition Commission v W. Hing Construction Company Limited & ors\n[2020] 2 HKLRD 1229\nat §§46-74. In short, the Tribunal adopts a structured methodological approach which involves 4 main steps:\n(1) Step 1: determining the “Base Amount”. This involves identifying the value of the undertaking’s sales directly or indirectly related to the contravention within Hong Kong in the financial year in question (“\nValue of Sales\n”) and applies a “Gravity Percentage” of 15% to 30% and multiplied by the number of years of the undertaking’s participation in the contravention.\n(2) Step 2: making adjustments for aggravating, mitigating and other factors.\n(3) Step 3: applying the statutory cap.\n(4) Step 4: applying cooperation reduction and considering plea of inability to pay, if any.\n12.\nThe proposed pecuniary penalty of HK$37,702.26 is appropriate and proportionate to the contravention by the 1\nst\nRespondent, taking into account the following facts and matters:\n(1) The Value of Sales directly related to the contravention was less than HK$150,000 and the contravention took place within a few months.\n(2) The 1\nst\nRespondent has agreed to undertake steps to ensure genuine compliance with the Ordinance in future.\n(3) The amount of pecuniary penalty is less than 10% of the turnover of the 1\nst\nRespondent in the year of infringement.\n(4) The 1\nst\nRespondent has been cooperative with the Commission and has admitted the facts stated in the Statement of Agreed Facts shortly after the commencement of the proceedings.\n13.\nI am also satisfied that it is appropriate to make an order in terms of §4 of the proposed Order, so as to give effect to the terms of settlement reached between the parties.\n14.\nAs to costs, the 1\nst\nand 2\nnd\nRespondents agreed to pay the costs of the proceedings on a joint and several basis. This is consistent with the usual order disposed of through the\nCarecraft\nprocedure.\n(Linda Chan)\nJudge of the Court of First Instance\nHigh Court\nMinterEllison LLP, solicitors for the applicant\nHumphrey & Associates, solicitors for the 1\nst\nand 2\nnd\nrespondents\nAppendix 1\nSchedule\nA. Circulation of Commission Materials\n1. The 1\nst\nRespondent shall within 7 working days of this order to circulate by email copies of the following documents published on the Applicant's website\n(\n“\nCommission Materials\n”\n)\nto all current staff and to indicate to such staff that such documents be studied carefully:\n(1) “The\nCompetition Ordinance\nand SMEs” brochure;\n(2) “Combat Market Sharing” brochure;\n(3) “Fighting Bid-rigging” brochure;\n(4) “How to comply with the\nCompetition Ordinance\nPractical Compliance Tools for Small and Medium-sized Enterprises” brochure; and\n(5) “Guideline on the First Conduct Rule”.\n2. In respect of all new staff recruited by the 1\nst\nRespondent within a period of 3 years after the date of the order to be made herein, the 1\nst\nRespondent shall within 7 working days of the commencement date of their employment circulate by email copies of the Commission Materials to such new staff and indicate to such new staff that such documents be studied carefully.\n3. The 1\nst\nRespondent shall provide a copy of the email referred to in paragraph 1 to the Applicant within 14 working days of the order to be made herein, and any emails circulated pursuant to paragraph 2 within 3 working days upon receipt of the Applicant's request for a period of 3 years from the date of the order to be made herein.\nB. Competition compliance policy\n4. The 1\nst\nRespondent shall adopt a competition compliance policy, in the form of a written statement signed by the 1\nst\nRespondent’s director(s), which shall at least indicate the personal commitment of the 1\nst\nRespondent’s director(s) to compliance with competition law and that competition law compliance is the responsibility of all staff\n(\n“\nPolicy\n”\n)\n.\n5. The 1\nst\nRespondent shall, prior to the adoption of the Policy, first submit its draft Policy for the Applicant’s review within 14 working days from the date of the order to be made herein.\n6. Within 7 working days from the date of receiving the Applicant’s approval, the 1\nst\nRespondent shall adopt the Policy as approved by the Applicant and promulgate the Policy to all current and future staff, and procure that each staff member signs a statement acknowledging their receipt and understanding of the Policy.\n7. For a period of 3 years from the date of the order to be made herein, the 1\nst\nRespondent shall keep a record of the staff acknowledgements referred to in paragraph 6 and provide them for the Applicant’s inspection within 3 working days upon receipt of the Applicant’s request from time to time.\nC. Attendance at the Applicant’s training\n8. The 1st Respondent shall procure all current staff to attend one of the Applicant’s public seminars or workshops on competition law within 12 months of the order to be made herein.\n9. In respect of all new staff recruited by the 1\nst\nRespondent within a period of 3 years after the date of the order to be made herein, the 1\nst\nRespondent shall procure that they attend one of the Applicant’s public seminars or workshops on competition law within 12 months from the commencement date of their employment.\n10. For a period of 3 years from the date of the order to be made herein, the 1\nst\nRespondent shall keep proper training records recording each staff’s name, the date and venue of the seminar or workshop attended, and provide a copy of the records for the Applicant’s inspection within 3 working days upon receipt of the Applicant's request from time to time.\nD. The 2\nnd\nRespondent’s Obligations\n11. The 2\nnd\nRespondent shall guarantee and oversee the 1\nst\nRespondent’s implementation of the above and, to the extent applicable, shall personally complete the implementation of the above.\n12. The 2\nnd\nRespondent shall ensure the 1\nst\nRespondent is equipped with sufficient funds to enable the latter to meet any of its monetary liabilities set out in the Tribunal’s orders, including any pecuniary penalty ordered against it.\nAppendix 2\nSTATEMENT OF AGREED FACTS\nINTRODUCTION\n1. On 22 January 2020, the Competition Commission (“\nCommission\n”) issued proceedings pursuant to ss. 92, 94, 96, and 101 of the\nCompetition Ordinance\n,\nCap. 619\n(“\nOrdinance\n”) against the 1\nst\nand 2\nnd\nRespondents, seeking:\n(a) a declaration that the 1\nst\nRespondent has contravened the First Conduct Rule under s.6 of the Ordinance and that the 2\nnd\nRespondent has been involved in the 1\nst\nRespondent’s contravention under s.91 of the Ordinance;\n(b) a pecuniary penalty against each of the Respondents in respect of their contravention of the First Conduct Rule or involvement in the contravention, and orders requiring them to pay the Commission’s costs arising from the investigation and the proceedings;\n(c) an order requiring the 1\nst\nRespondent to undertake certain compliance measures;\n(d) a disqualification order against the 2\nnd\nRespondent; and\n(e) such further and/or other relief as the Competition Tribunal (“\nTribunal\n”) may consider appropriate.\n2. Subject to the approval of the Tribunal, the Commission and the 1\nst\nand 2\nnd\nRespondents agree to dispose of these proceedings by way of the summary procedure as provided for in Rule 39 CTR and §72 CTPD1. The procedure as envisaged by the parties is that sanctioned by the High Court in England and Wales in the case of\nRe Carecraft Construction Co Ltd\n[1994] 1 WLR 172\nand clarified by the English Court of Appeal in\nSecretary of State for Trade and Industry v Rogers\n[1996] 1 WLR 1569\n, and as adopted in Hong Kong for proceedings under\ns.214\nof the\nSecurities and Futures Ordinance\n,\nCap.571\nand\ns.168H\nof the former\nCompanies Ordinance\n,\nCap.32\n.\n3. This Statement of Agreed Facts (“\nStatement\n”) is submitted pursuant to Rule 39 CTR and §72 CTPD1 for the purpose of setting out the factual basis upon which the Tribunal is asked to make the orders sought.\n4. For the purpose of resolving these proceedings summarily, by reference to the facts as set out below, which the 1\nst\nand 2\nnd\nRespondents admit and accept:\n(a) The Commission contends and the 1\nst\nRespondent admits that it has contravened the First Conduct Rule under s.6 of the Ordinance by having made and given effect to an agreement or engaged in a concerted practice with B Co whereby they exchanged future price sensitive information (“\nInformation Exchange\n”) and/or coordinated their return bids to a request for quotation exercise (“\nBidding Exercise\n”); and\n(b) The Commission contends and the 2\nnd\nRespondent admits that, by his personal involvement in the facts stated in this Statement, he is liable under s.91 of the Ordinance for counseling or procuring the 1\nst\nRespondent’s contravention, and/or being directly and knowingly concerned in or a party to the contravention.\n5. The facts as set out in this Statement is agreed by the parties and is filed before the Tribunal to support the joint application by the Applicant and the Respondents for an order to be made under Rule 39 CTR (“\nJoint Application\n”).\n6. For the avoidance of doubt, the agreed facts as set out in this Statement shall remain binding on the Respondents regardless of the Tribunal’s decision on the Joint Application. This includes for all purposes connected with or ancillary to these proceedings including, but not limited to, the prosecution of any proceedings that are stayed against the 1\nst\nand 2\nnd\nRespondent pursuant to the terms of the draft order that was submitted together with the Joint Application on August 2020.\n7. The Applicant shall also be at liberty to disclose this Statement to any third party where it considers proper to do so in the interests of the public.\nAGREED FACTS\nA The Relevant Parties\n8. The Applicant is the Competition Commission established under s.129 of the Ordinance.\n9. The 1\nst\nRespondent was at all material times, and still is:\n(a) a limited liability company incorporated on 25 August 2016 in Hong Kong whose registered office is RM1305, Prosper Commercial Building, No. 9 Yin Chong Street, Mong Kok, Kowloon, Hong Kong; and\n(b) engaged in the business of, among other things, reselling IT software and providing necessary IT solutions to end-users.\n10. The 2\nnd\nRespondent was at all material times, and still is, the sole director and sole shareholder of the 1\nst\nRespondent.\n11. B Co was at all material times, and still is, a limited liability company registered in Hong Kong engaged in the business of, among other things, reselling IT software and providing necessary IT solutions to end-users.\n12. Nintex Pty Limited (“\nNintex\n”) was at all material times, and still is:\n(a) a limited liability company incorporated in Australia; and\n(b) part of a multinational undertaking specializing in the development of workflow automation technologies and supplying relevant software products by the brand name of “Nintex”.\n13. H at all material times represented and acted for Nintex as its “Territory Manager – North Asia” based in Hong Kong.\nB The Workflow Automation Project\n14. In or about early 2017, Ocean Park Corporation (“\nOcean Park\n”) planned to carry out a workflow automation project (“\nProject\n”) to replace its existing manual process in preparing IT account application forms. The Project aimed to automate the manual process through software that adopted the Microsoft SharePoint platform. Ocean Park identified a piece of Nintex software (“\nSoftware\n”) as the suitable software for the Project.\n15. H initially introduced T, director of B Co, to Ocean Park for the purpose of providing Ocean Park with an online demonstration of the proposed solution using the Software.\n16. In or around April to May 2017, Ocean Park began the process of procuring the Software and relevant IT services. The Project’s estimated budget was HK$250,000.\n17. Since Nintex did not deal directly with end-users in Hong Kong, H recommended to Ocean Park a number of Nintex’s local resale partners that offered the Software and relevant IT services (the “\nResellers\n”), including the 1\nst\nRespondent and B Co who were, at all material times, competitors in the market for the resale of IT solutions to end-users in Hong Kong.\nC Invitations for Quotation\n18. On 9 June 2017, Ocean Park, by email, invited the Resellers to submit a quotation for the Project. The emails attached certain documents relating to the specifications for the Project, and requested interested Resellers to return completed versions of the attached Compliance Form and Quotation Form to Ocean Park by 3:30 pm on 15 June 2017.\n19. The Quotation Form requested the Resellers to provide quotations in respect of:\n(a) two mandatory items, being: (1) the license fee for the Software for the first year, and (2) the accompanying development and installation services (titled ‘Workflow Development for IT Services Application’) (“\nItem (2)\n”); and\n(b) certain optional items.\nD The Agreement / Concerted Practice\n20. Shortly after Ocean Park sent out the invitations to submit a quotation for the Project, on 9 June 2017, between 18:28 and 21:36, WhatsApp messages were exchanged among H (of Nintex), the 2\nnd\nRespondent, and T (of B Co). The following,\ninter alia\n, were exchanged:\nTable 1: Messages between H (of Nintex) and the 2\nnd\nRespondent\nTime\nMessages from H\n(of Nintex)\nMessages from the 2\nnd\nRespondent\n18:28\nPlease manage the ocean park RFQ immediately\n收到\n[2]\n21:29\nPlease coordinate with T about the ocean park tender. What shall he propose? What shall you propose? Who is going to win it? Of course, he will let you implement if he win the case, etc. Please do talk to him\n21:29/\n\n 21:30\nOk\nhe told me the ocean park ask him to quo lesser man day\n[3]\nif same man day and price, who will win?\nlet me ask him tuesday\n21:31\nPlease ask him today or tomorrow. We need to submit all those proposal and quotation in early next week. Otherwise, insufficient time for ocean park to award the tender and place the order to me\nTable 2: Messages between the 2\nnd\nRespondent and T (of B Co)\nTime\nMessages from the 2\nnd\nRespondent\nMessages from T\n(of\nB Co\n)\n21:31\nH ask me what is the arrangement of ocean park\nu want to get the deal?\ni am ok to anything\nYes, share me your effort estimation and I will check against mine\n21:32\nThen we can discuss the arrangement.\nI quoted x man days and $x each day, so total x\n21:33\nHaha, you quoted more expensive than mine on manday rate\nsmiling face (Emoji)\n21:35\nI only quote $x after they removed the SAP integration part\n21:36\nokok\nTable 3: Messages between H (of Nintex) and the 2\nnd\nRespondent\nTime\nMessages from H\n(of Nintex)\nMessages from the 2\nnd\nRespondent\n21:35\n同T講咗，佢應該自己做返\n[4]\nWhat the hell\n[Cheung then sent H a screen capture showing the WhatsApp conversation between T and Cheung as follows:\nCheung: H ask me what is the arrangement of ocean park. u want to get the deal? i am ok to anything.\nT: Yes, share me your effort estimation and I will check against mine. Then we can discuss the arrangement.\nCheung: i quoted x man days and $x each day, so total x\nT: Haha, you quoted more expensive than mine on manday rate. I only quote $x after they removed the SAP integration part.]\n21. With regards to the communications as set out at Tables 1-3 above, H referred to in the above is H, i.e. H; T referred to in the above is T, i.e. T. The figures of $x and $x referred to above relate to Item (2) of the two mandatory items in Ocean Park’s Quotation Form, that is, the price for the development and installation of the Nintex software. At this point in time, neither the 1\nst\nRespondent nor B Co had submitted their quotations to Ocean Park.\n22. The 1\nst\nRespondent submitted its quotation to Ocean Park by the deadline of 3:30 pm on 15 June 2017, quoting HK$x for Item (2) on the Quotation Form.\n23. Ocean Park eventually awarded the Project to the 1\nst\nRespondent and issued a purchase order in the amount of HK$x to the 1\nst\nRespondent on 28 June 2017.\n24. The 1\nst\nRespondent completed the Project in about two months’ time.\nE The Contravention\n25. The communications between the 1\nst\nRespondent (\nvia\nthe 2\nnd\nRespondent) and B Co (\nvia\nT) and the Information Exchange as set out at Table 2 in in §20 above constituted the making and giving effect to an agreement and/or engaging in a concerted practice between the 1\nst\nRespondent and B Co to:\n(a) exchange future price sensitive information in the Bidding Exercise (i.e., the Information Exchange); and/or\n(b) discuss who would win the Bidding Exercise.\n26. The 1\nst\nRespondent acted on the Information Exchange by lowering its quotation for Item (2) from HK$x to HK$x, i.e. the price planned to be submitted by B Co, in the quotation it submitted to Ocean Park following the Information Exchange with B Co.\n27. The said agreement or concerted practice between the 1\nst\nRespondent and B Co had the object of preventing, restricting, or distorting competition in relation to the Bidding Exercise and is one that involves serious anti-competitive conduct (i.e. price-fixing) for the purpose of s.2(1) of the Ordinance.\n28. By his personal involvement as particularized below, the 2\nnd\nRespondent has been involved in a contravention of a competition rule under s.91 of the Ordinance:\n(a) At the material times, the 2\nnd\nRespondent was the sole director and sole shareholder of the 1\nst\nRespondent;\n(b) The 2\nnd\nRespondent, on behalf of the 1\nst\nRespondent, was the individual directly agreeing with Nintex (\nvia\nH) that he would discuss with B Co (\nvia\nT) their respective proposed quotations and coordinate in the Bidding Exercise. The 2\nnd\nRespondent was also the individual that directly initiated the Information Exchange with B Co (\nvia\nT) as set out in Table 2 above;\n(c) The 2\nnd\nRespondent, at all material times, possessed actual knowledge of all the undisputed facts stated above; and\n(d) The 2\nnd\nRespondent acted on the Information Exchange by lowering the 1\nst\nRespondent’s quotation for Item (2) from HK$x to HK$x, i.e. the price planned to be submitted by B Co, in the quotation it submitted to Ocean Park following the Information Exchange with B Co (\nvia\nT).\nF The 1\nst\nRespondent’s Financial Information\n29. The following financial information about the 1\nst\nRespondent is relevant to the calculation of the recommended pecuniary penalty, the amount and underlying methodology of which is agreed by the parties:\n(a) Ocean Park paid a total amount of HK$x to the 1\nst\nRespondent for the completion of the Project, including a license fee of HK$x for the Software, and a service fee of HK$x (comprising HK$x for Item (2) and HK$x for an optional item);\n(b) The 1\nst\nRespondent’s contravention took place during its first financial year starting from 25 August 2016 and ending on 31 December 2017. Based on the method stipulated in\ns.2\n(1) of the\nCompetition (Turnover) Regulation\n,\nCap.619C\n, the 1\nst\nRespondent’s turnover for the relevant financial year is HK$x, being its total gross revenue of HK$x after deducting taxes of HK$x directly related to the revenues; and\n(c) In the same financial year and other than the Project, the 1\nst\nRespondent did not make any other sales from reselling Nintex workflow automation software or provided related services.\n30. Using the above information, and based on the proper approach for the determination of the pecuniary penalty for an undertaking that has contravened a competition rule as established by the Tribunal in its judgment in\nCompetition Commission v W. Hing Construction Co Ltd & Ors\n[2020] HKCT 1\nand as reflected in the Commission’s\nPolicy on Recommended Pecuniary Penalties\n, the Commission recommends, and the 1\nst\nRespondent agrees to jointly apply, that the Tribunal imposes a pecuniary penalty in the amount of HK$37,702.26 on the 1\nst\nRespondent in light of its admission of a contravention of the First Conduct Rule under s.6 of the Ordinance.\n[1]\nBy way of a consent summons dated 11 August 2020\n[2]\nTranslates to\n“Noted.”\nin English.\n[3]\nThe term “man day” is a reference to the number of billable working days which the Reseller is quoting to Ocean Park as its service fee in addition to the Software licence fee.\n[4]\nTranslates to\n“Spoken with T, he should be doing the Project himself.”\nin English.", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2020/CTEA000001_2020.docx", + "file_name": "CTEA000001_2020.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkct/2021_HKCT_3/case.json b/en_cases_hkct/2021_HKCT_3/case.json new file mode 100644 index 0000000..d7909eb --- /dev/null +++ b/en_cases_hkct/2021_HKCT_3/case.json @@ -0,0 +1,26 @@ +{ + "Date": "7 Oct, 2021", + "Action No.": "CTEA3/2020", + "Neutral Cit.": "[2021] HKCT 3", + "case_title": "COMPETITION COMMISSION V. LINDE HKO LTD AND OTHERS", + "page_title": "COMPETITION COMMISSION V. LINDE HKO LTD AND OTHERS | [2021] HKCT 3 | HKLII", + "case_history": [ + { + "name": "CTEA3/2020", + "link": "https://www.hklii.hk/en/appealhistory/CTEA/2020/3" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkct/2021/3", + "neutral_cit": "[2021] HKCT 3", + "court_code": "HKCT", + "content": "CTEA3/2020 COMPETITION COMMISSION v. LINDE HKO LTD AND OTHERS\nCTEA 3/2020\n[2021] HKCT 3\nIN THE COMPETITION TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOMPETITION TRIBUNAL ENFORCEMENT ACTION NO 3 OF 2020\n________________\nBETWEEN\nCOMPETITION COMMISSION\nApplicant\nand\nLINDE HKO LIMITED\n1\nst\nRespondent\nTSE CHUN WAH\n2\nnd\nRespondent\nLINDE GMBH\n3\nrd\nRespondent\n________________\nBefore: Hon Harris J, President of the Competition Tribunal in Chambers\nDates of Hearing: 7 October 2021\nDate of Decision: 7 October 2021\n________________\nD E C I S I O N\n________________\n1.\nToday I heard a case management conference for directions for the further conduct of this enforcement action brought by the Commission. The Parties agreed most of the directions. Only one matter that was addressed before me needs comment and that concerns discovery.\n2.\nThe Commission offered to make discovery of all documents in its possession relevant to the issues in the action. In other words effectively giving general discovery. Although I do not have any evidence concerning what that might involve it appears to be uncontentious that many of the documents will have been obtained by the Commission during its investigations that have led to the action and by virtue of the exercise of its powers to require documents to be provided to advance the investigations. The Commission wants orders that the Respondents also make general discovery. However, the Commission’s legal team have in my view overlooked the procedure that is required of a party seeking discovery and this has contributed to the application not being properly formulated as a consequence of which I declined to make an order for the Respondents to make discovery at this time.\n3.\nRule 24 of the\nCompetition Tribunal Rules\n(“\nRules\n”),\nCap 619D\n, deals with discovery and inspection. It provides as follows:\n“(1) A party may apply to the Tribunal for an order for discovery and production of a document relating to the proceedings from a person for inspection.\n(2) The application may be determined by the Tribunal with or without a hearing.\n(3) The Tribunal may make or refuse to make an order for discovery and production of a document having regard to all the circumstances of the case, including—\n(a) the need to secure the furtherance of the purposes of the Ordinance as a whole;\n(b) whether the information contained in the document sought to be discovered or produced is confidential;\n(c) the balance between the interests of the parties and other persons; and\n(d) the extent to which the document sought to be discovered or produced is necessary for the fair disposal of the proceedings.\n(4) Order 24 (except rules 1, 2, 3, 4 and 6) of the RHC applies to the discovery and production of documents in any proceedings.”\n4.\nRule 8 provides that all interlocutory applications, which includes discovery, must be made by filing a summons in Form 2 in the Schedule to the Rules. This form is for all practical purposes the same as the form of\ninter partes\nsummons used in High Court proceedings. No application has been issued by the Commission.\n5.\nThe way in which the Commission has formulated its submissions on discovery seem to assume that there is a presumption of sorts that general discovery is the norm in enforcement actions. This in my view is wrong. Although the parties can agree to make general discovery, if this is not agreed it is necessary for a party to make an application for what is analogous to an order under Order 24 rule 3 or rule 7 of the RHC. Justifying the Commission making general discovery given the nature of the proceedings will be straightforward for a respondent as the Commission accepts that it should make discovery on the generous basis explained in\nSecurities and Futures Commission v Wong Yuen Yee\n[1]\n; a position which the Commission has accepted from the first case to come before the Tribunal\n[2]\n. However, the opposite is not the case. The Tribunal aims to ensure that enforcement actions are conducted fairly not just in the sense of applying the Rules and substantive law in a consistent, intellectually coherent and equitable way, but also expeditiously and cost effectively. Orders for discovery need to be proportionate to those objectives. It follows from this that it is necessary for the Commission to justify the order sought and this requires the Commission to explain to the Tribunal what documents or categories of documents it seeks, how they are relevant to the issues and, in many cases I anticipate, why discovery is justified given the fact that the Commission has already been able to obtain documents through its investigatory powers. This has not been done in the present case. I have no idea what documents the Commission has and what additional documents they anticipate being able to obtain. It seems to me likely that if discovery is justified it should be limited to clear categories of documents. If, as I assume it will, the Commission wishes to pursue a discovery application it will have to formulate it broadly in line with my observations.\n(Jonathan Harris)\nPresident of the Competition Tribunal\nHigh Court\nMr Jin Pao SC and Mr Timothy Parker, instructed by Eversheds Sutherland, for the applicant\nMs Eva Sit SC and Mr Joshua Chan, instructed by Linklaters, for the 1\nst\nrespondent\nMr Nigel Francis, of YTL LLP, for the 2\nnd\nrespondent\nMr Carter Chim, instructed by Linklaters, for the 3\nrd\nrespondent\n[1]\n[2017] 1 HKLRD 788\n.\n[2]\nCompetition Commission v Nutanix Hong Kong Ltd & Others\n[2017] 3 HKLRD 584\n, [4].", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2020/CTEA000003_2020.docx", + "file_name": "CTEA000003_2020.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkct/2022_HKCT_2/case.json b/en_cases_hkct/2022_HKCT_2/case.json new file mode 100644 index 0000000..cfe33f9 --- /dev/null +++ b/en_cases_hkct/2022_HKCT_2/case.json @@ -0,0 +1,26 @@ +{ + "Date": "22 Jul, 2022", + "Action No.": "CTEA1/2018", + "Neutral Cit.": "[2022] HKCT 2", + "case_title": "COMPETITION COMMISSION V. KAM KWONG ENGINEERING COMPANY LTD AND OTHERS", + "page_title": "COMPETITION COMMISSION V. KAM KWONG ENGINEERING COMPANY LTD AND OTHERS | [2022] HKCT 2 | HKLII", + "case_history": [ + { + "name": "CTEA1/2018", + "link": "https://www.hklii.hk/en/appealhistory/CTEA/2018/1" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkct/2022/2", + "neutral_cit": "[2022] HKCT 2", + "court_code": "HKCT", + "content": "CTEA1B/2018 COMPETITION COMMISSION v. KAM KWONG ENGINEERING COMPANY LTD AND OTHERS\nCTEA 1/2018\n[2022] HKCT 2\nIN THE COMPETITION TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOMPETITION TRIBUNAL ENFORCEMENT ACTION NO 1 OF 2018\n________________\nBETWEEN\nCOMPETITION COMMISSION\nApplicant\nand\nKAM KWONG ENGINEERING COMPANY LTD\n1\nst\nRespondent\n(金光工程有限公司)\nGOLDFIELD N&W CONSTRUCTION\n2\nnd\nRespondent\nCOMPANY LTD (聯合金輝建築工程有限公司)\nPACIFIC VIEW ENGINEERING LTD\n3\nrd\nRespondent\n(豪景工程有限公司)\nCHAN KAM SHUI (陳金水)\n4\nth\nRespondent\nLAM PO WONG (林保旺)\n5\nth\nRespondent\n________________\nBefore:\nHon Harris J in Chambers\nDates of Hearing:\n24 September 2020\nDate of Decision:\n22 July 2022\n__________________________________\nDECISION ON PENALTIES\n__________________________________\nIntroduction\n1.\nThe present proceedings concern contravention of the First Conduct Rule in relation to tendering for renovation and redecoration work pursuant to the Hong Kong Housing Authority (“\nHKHA\n”)’s Decoration Contractor System (“\nDCS\n”). On 3 June 2020 I entered judgment by agreement between the Commission and the 1\nst\n, 2\nnd\nand 4\nth\nRespondents for declarations that the 1\nst\n, 2\nnd\nand 4\nth\nRespondents had contravened or been involved in the contravention of the First Conduct Rule, pursuant to a process analogous to the\nCarecraft\nprocedure\n[1]\nused in director’s disqualification proceedings pursuant to the\nSecurities and Futures Ordinance\n,\nCap 571\nand the\nCompanies (Winding Up and Miscellaneous Provisions) Ordinance\n,\nCap 622\nto resolve applications, to which a respondent concedes. In the Competition context it can conveniently be referred to as the\nKam Kwong\nprocedure. That is how I shall refer to it in future. The issue of penalties was adjourned. The application came back on before me on 7 August 2020. By that time an appeal had been issued in respect of the penalties imposed in CTEA 2/2017 by a judgment of G Lam J (as he then was) in those proceedings on 29 April 2020. As the appeal concerned an issue, which was directly relevant to the penalties to be imposed in the present proceedings I awaited the handing down of the Court of Appeal’s judgment on 2 June 2022 before determining the penalties against the 1\nst\n, 2\nnd\nand 4\nth\nRespondents.\n2.\nSubsequent to the 1\nst\n, 2\nnd\nand 4\nth\nRespondents conceding that they had contravened the First Conduct Rule, the 3\nrd\nand 5\nth\nRespondents agreed to do so. On 4 August 2020 I entered judgment granting declarations that the 3\nrd\nRespondent had contravened the First Conduct Rule and that the 5\nth\nRespondent was involved in the contravention of the First Conduct Rule. This was made on the basis of a Statement of Agreed Facts dated 3 August 2020, which is appended to this Decision. The penalty stage of the proceedings was adjourned and heard by me on 24 September 2020. I also delayed determining the penalties against the 3\nrd\nand 5\nth\nRespondents until the Court of Appeal handed down the decision to which I have referred to in the previous paragraph. The penalties decision in respect of the 1\nst\n, 2\nnd\nand 4\nth\nRespondents has been handed down on the same day as this decision. In order to fully understand this decision, my decision dated 17 July 2020 dealing with the\nKam Kwong\nprocedure in respect of the 1\nst\n, 2\nnd\nand 4\nth\nRespondents, today’s penalty decision in respect of those Respondents (“\n1\nst\nPenalties Decision\n”) and the Statement of Agreed Facts appended to this Decision should be read first as I have not repeated matters addressed in those two decisions or the Statement of Agreed Facts. I use the definitions in this decision used in the earlier decisions. A very brief summary of the case against the 3\nrd\nand 5\nth\nRespondents is as follows: the 3\nrd\nand 5\nth\nRespondents entered into an illicit arrangement, exploiting the 3\nrd\nRespondent’s privileged position of access to King Tai Court as a HKHA designated DC, which enabled the 5\nth\nRespondent as manager of the 3\nrd\nRespondent’s contracted works within the estate to enter into a market allocation and price fixing agreement with the 1\nst\nand 2\nnd\nRespondents, with a view to sharing the profits from this anti-competitive arrangement between them.\nPenalties sought by the Commission\n3.\nHaving considered all the available materials, including evidence filed by the 3\nrd\nand 5\nth\nRespondents, the Commission proposes the following penalties and orders:\n(1) The 3\nrd\nRespondent shall pay to the Government a pecuniary penalty of $1,579,000 within 28 days from the date of the order.\n(2) The 5\nth\nRespondent shall pay to the Government a pecuniary penalty between $280,250 and $380,000 (precise figure to be decided by the Tribunal) within 28 days from the date of the order.\n(3) The 3\nrd\nand 5\nth\nRespondents be restrained from entering into any agreement or concerted practice involving any anti-competitive conduct or from being involved in any anti-competitive conduct in respect of any projects under the HKHA’s DCS.\n(4) The 3\nrd\nand 5\nth\nRespondents shall each pay 1/5 of the Commission’s costs of this action up to and including the hearing on 3 June 2020, 1/2 of the Commission’s costs of the present hearing, and 1/2 of the costs incurred for the preparation for the trial originally to commence on 15 September 2020 (with seven days reserved), to be taxed if not agreed, with certificate for two counsel for the 3 June hearing, the present hearing and the original trial.\n4.\nThe Commission has calculated the pecuniary penalty it submits should be made against the 3\nrd\nRespondent as follows:\nR3\nStep 1: Base Amount\n$1,330,199\nStep 2: Adjustment for aggravation/mitigation\n+25%\n=$1,662,748.8\nStep 3: Statutory cap\n$4,135,425.4\nStep 4: Adjustment for cooperation/inability to pay\n-5%\nResultant penalty\n(rounded down to the nearest $1000)\n$1,579,000\nShould the 3\nrd\nand 5\nth\nRespondents be held jointly liable for the penalty?\n5.\nThe 3\nrd\nand 5\nth\nRespondents, who have the same legal representation, suggest an alternative approach to the penalties to be imposed on the 3\nrd\nand 5\nth\nRespondents, namely, that they be treated as one undertaking and argue that one penalty should be imposed for which they are jointly and severally liable. This begs the question: why does the 5\nth\nRespondent suggest this as it increases his liabilities. The 5\nth\nRespondent is a sole proprietor and personally liable for any penalty imposed on him. This was not a question to which Mr Ngai, who acted for both the 3\nrd\nand 5\nth\nRespondents, could give a satisfactory answer other than that it might reflect an agreement between the 3\nrd\nand 5\nth\nRespondents and perhaps the 3\nrd\nRespondent has agreed to pay the full amount, because the 5\nth\nRespondent is in financial difficulties. Given that it is the 3\nrd\nRespondent’s case (described in more detail in [26]–[28]) that the contravention was entirely the 5\nth\nRespondent’s doing and that he had been told in writing not to do the very thing that constitutes the contravention, it is unclear to me why the 3\nrd\nRespondent would so agree.\n6.\nThe 3\nrd\nand 5\nth\nRespondents’ submission gives rise to the question of whether the 3\nrd\nand 5\nth\nRespondents should be viewed for the purpose of\nsections 91\nto\n93\nof the\nCompetition Ordinance\n,\nCap 619\n(“\nOrdinance\n”) as one or two legal persons. Those sections are as follows:\n“\n91. Persons involved in contravention of competition rule\nA reference in this Part to a person being involved in a contravention of a competition rule means a person who—\n(a) attempts to contravene the rule;\n(b) aids, abets, counsels or procures any other person to contravene the rule;\n(c) induces or attempts to induce any other person, whether by threats or promises or otherwise, to contravene the rule;\n(d) is in any way, directly or indirectly, knowingly concerned in or a party to the contravention of the rule; or\n(e) conspires with any other person to contravene the rule.”\n93. Tribunal may impose pecuniary penalty\n(1) If the Tribunal is satisfied, on application by the Commission under section 92, that a person has contravened or been involved in a contravention of a competition rule, it may order that person to pay to the Government a pecuniary penalty of any amount it considers appropriate.”\n7.\nThe sections themselves refer to “\na person\n”. They also clearly envisage cases in which the Commission proceeds on the basis, and the Tribunal finds, that one legal person has contravened a competition rule and another legal person has been involved in a contravention of a competition rule. The result is that there may be individual findings against each person and individual penalties imposed on each person.\n8.\nThe 3\nrd\nand 5\nth\nRespondents’ case is that the\nOrdinance\nin Hong Kong involves concepts of undertakings and economic entities that are not synonymous with legal persons. For example the term “\nundertaking\n” appears in\nsection 2\n(definitions) of the\nOrdinance\nand “\nmeans any entity, regardless of its legal status or the way in which it is financed, engaged in economic activity, and includes a natural person engaged in economic activity\n”. The First Conduct Rule prohibits an\nundertaking\nengaging in the anti-competitive activities prohibited by s\nections 6 and 7\nof the\nOrdinance\nnot a\nperson\n: broadly, agreements and practices that restrict or distort competition. Similarly, the Second Conduct Rule also prohibits an\nundertaking\nnot a\nperson\nfrom engaging in the anti-competitive activities prohibited by\nsections 21\nand\n22\nof the\nOrdinance\n: broadly, abuse of market position.\n9.\nMr Ngai from this foundation argued, based on European jurisprudence, that it should be the relevant undertaking that is penalised and that in the present case the undertaking is the 3\nrd\nand 5\nth\nRespondents jointly. I disagree. Hong Kong has decided to take a different approach at the penalties stage to the European Union. This is clear from\nsections 91\nto\n93\n. They do not refer to\nundertakings\n. The Hong Kong approach is to treat each legal person forming part of an undertaking found to have contravened a conduct rule individually, when it comes to the imposition of penalties.\n10.\nMr Ngai’s argument also sits uncomfortably with the judgments which the 3\nrd\nand 5\nth\nRespondents agreed should be entered against them, namely, that the 3\nrd\nRespondent contravened the First Conduct Rule (\ns92(1)(a)\n) and the 5\nth\nRespondent was involved in the contravention of the First Conduct Rule (\ns92(1)(b)\n). Given the materially different findings against them it is difficult to identify any grounds or principle, which justifies treating them as jointly liable for penalties imposed in respect of contraventions in which they were not involved. This is very clear in the case of the 5\nth\nRespondent, who has not been declared by the Tribunal to have breached the First Conduct Rule.\n11.\nI proceed on the basis that penalties should be imposed on the 3\nrd\nand 5\nth\nRespondents individually. In [13]–[31] I deal with the penalty for the 3\nrd\nRespondent. In [32]–[33] I deal with the penalty for the 5\nth\nRespondent.\nPrinciples on the assessment of Penalties\n12.\nThe principles applicable to the assessment of penalties for contravention of the First Conduct Rule (\nsection 6\n) are uncontroversial and explained in [7]–[10] of the 1\nst\nPenalties Decision.\nStep 1\n13.\nThe Commission and the 3\nrd\nRespondent agree the following base amount under Step 1:\nR3\nValue of Sales\n$5,542,496\n[2]\nGravity Percentage\n24%\nDuration Multiplier\n1\nBase Amount\n$1,330,199\n14.\nThe value of sales is derived from the 3\nrd\nRespondent’s own financial documents recording the value of the works the 3\nrd\nRespondent treated itself as having undertaken. The documents were obtained as the result of the execution of a search warrant on 7 November 2017. According to the affidavit of Lee Hiu Leung, Head of Litigation at the Commission, filed on 11 September 2020, the 3\nrd\nRespondent has been requested to provide additional financial documents, which assist in assessing the gross and net profit made by the 3\nrd\nRespondent. It has not provided them. The Commission has not sought an order for their disclosure. This is not satisfactory for the reasons that I explain in the next two paragraphs. Although as matter of expediency I will use in the present case the agreed value of sales in a similar case in the future I will expect the Commission to seek full discovery of a corporate respondent’s financial documents for the relevant period.\n15.\nThe 3\nrd\nRespondent is a limited company. It is required by the\nCompanies Ordinance\n,\nCap 622\nto keep the financial documents and prepare audited financial statements pursuant to\nsections 373\nand\n379\nof the\nCompanies Ordinance\n. It is also required to submit a tax return to the Inland Revenue Department. The 3\nrd\nRespondent should, therefore, have had the documents requested by the Commission.\n16.\nOn 27 August 2020 the sole director and shareholder of the 3\nrd\nRespondent, Chan Hong Wing, filed an affirmation containing evidence said by the 3\nrd\nRespondent to be relevant to the determination of penalties. Mr Chan says that the 5\nth\nRespondent was to carry out works at King Tai Court in the name of the 3\nrd\nRespondent. The 3\nrd\nRespondent had no involvement or knowledge at all of the work undertaken by the 5\nth\nRespondent pursuant to this arrangement. The 5\nth\nRespondent was, however, to receive 70% of the profit made on the works, but would not be responsible for any loss; self-evidently a highly beneficial arrangement for the 3\nrd\nRespondent, although Mr Chan says that the 3\nrd\nRespondent never received anything from the 5\nth\nRespondent and, as he had no knowledge of what the 5\nth\nRespondent was making, the profit split was academic. Mr Chan hints, but does not actually say, that the 3\nrd\nRespondent had not anticipated receiving anything, which seems to me unconvincing as he gives no reason for entering into the arrangement other than in anticipation of receiving what amounted to a fee for lending the 3\nrd\nRespondent’s licence to the 5\nth\nRespondent. What is clear, but is not commented on by Mr Lee (who had Mr Chan’s affirmation when preparing his affidavit) is that the documents obtained in November 2017 are, if Mr Chan’s evidence is correct, which seems likely, bogus. The 3\nrd\nRespondent had no turnover generated by contracts for building works. The agreement entered into with the 5\nth\nRespondent was for the payment of a licence fee, the amount of which would be dependent on the profit made by the 5\nth\nRespondent. It was the 5\nth\nRespondent that carried out the works and generated the associated turnover. This ramifications of this kind of arrangement for the calculation of the value of sales needs to be given more thought in future cases. The Commission also needs to be alert to obtaining documents and information that suggest that offences other than contravention of the\nOrdinance\nmay have taken place. It would appear on Mr Chan’s own case that he caused false accounting documents to be produced and, presumably, this led to false and misleading statements being made to the auditors, the preparation of false and misleading audited financial statements and their submission to the Inland Revenue.\n17.\nAs can be seen the Commission and the 3\nrd\nRespondent agree a 25% uplift for the gravity of the contravention is appropriate. This is consistent with\nW Hing 3\nand 1\nst\nPenalties Decision. I accept that it is appropriate to use the same percentage in respect of the 3\nrd\nRespondent.\nStep 2—Uplift for aggravating circumstances\n18.\nThe Commission seeks an uplift because, it contends, the contravention is part of a long standing and wide-spread industry practice. I dealt with the same argument and rejected it in respect of the 1\nst\n, 2\nnd\nand 4\nth\nRespondents: see [20]–[21] of the 1\nst\nPenalty Decision. I will do the same in respect of the 3\nrd\nand 5\nth\nRespondents; although it is necessary to say more about it given what in my view is the unsatisfactory way in which the Commission had attempted to deal with this matter in respect of the 3\nrd\nand 5\nth\nRespondents.\n19.\nThe judgment of 4 August 2020 contained conventional directions for the penalty stage of the proceedings. This included directions giving the 3\nrd\nand 5\nth\nRespondents’ leave to file further evidence relevant to the penalties no later than 27 August 2020 and the Commission leave to file evidence in reply by 11 September 2020.\n20.\nOn 20 August 2020 the Commission filed without leave an affirmation from Chan Wai Ching the Head (Intelligence, Forensics and Leniency) in the Operations Division of the Commission dealing exclusively with whether or not there was a wide-spread practice of contractors acting as a cartel and contravening the First Conduct Rule in the manner that has occurred in the present case. Mr Chan makes substantial reference to the evidence in\nCompetition Commission v W Hing Construction Co Ltd (No 2)\n[3]\n(“\nW Hing 2\n”), which concerned the same kind of conduct. The 3\nrd\nand 5\nth\nRespondents did not respond to this evidence in their affirmations filed on 27 August 2020 and, understandably, objected to its admission at the hearing.\n21.\nI agree that the new evidence should not be admitted. I would have thought it self-evident that it cannot be correct for the Tribunal to be put in the position of having to determine this issue on the basis of different evidence in the case of (A) the 1\nst\n, 2\nnd\nand 4\nth\nRespondents and (B) the 3\nrd\nand 5\nth\nRespondents. It is also not satisfactory that the 3\nrd\nand 5\nth\nRespondents were put in the position at short notice of having to consider how to respond to this argument, which was made all the more challenging as such evidence as had been filed by the Commission on 20 August 2020 to a considerable extent relied on the Commission’s familiarity with\nW Hing 2\nand its access to the evidence that had been advanced in those proceedings. If the Commission wished to seek an uplift based on a pervasive and wide-spread practice it should have thought through with considerably more care well in advance of the August penalty hearing in respect of the 1\nst\n, 2\nnd\nand 4\nth\nRespondents, what evidence was required.\nStep 2—mitigating factors\n22.\nThe Commission argues that there are no mitigating factors in the present case. The 3\nrd\nand 5\nth\nRespondents suggest there are two.\nFirst\n, their consent to Statement of Agreed Facts, which justifies a 5% reduction.\nSecondly\n, the uncertainty as to the state of the law, which they also suggest justifies a further 5% reduction. The Commission accepts that conceding contravention is a mitigating matter. It contends that it should be taken into account at stage 4: see [28]–[37] of the 1\nst\nPenalty Decision.\n23.\nThe argument that a discount for admitting the facts that constitute the alleged contravention should result in a reduction under Step 2, necessarily involves the assumption that a reduction for cooperation under Step 4 does not include an element for admitting the facts. It seems to me that this is obviously wrong and I note that the 1\nst\n, 2\nnd\nand 4\nth\nRespondents’ counsel did not suggest that a separate deduction for agreeing the Statement of Facts should be made under Step 2. In making a deduction for cooperation after proceedings are commenced the Tribunal is taking into account the saving of time and costs that results from a respondent’s concession that it has contravened the\nOrdinance\n. Necessarily in a case such as the present in which the\nKam Kwong\nProcedure is adopted the deduction takes into account agreeing a Statement of Agreed Facts. The suggestion, inherent in the 3\nrd\nand 5\nth\nRespondents’ Counsel’s submission, that the deduction given to the 1\nst\n, 2\nnd\nand 4\nth\nRespondents did not take into account their agreement to the Statement of Fact is unsustainable.\n24.\nThe 3\nrd\nand 5\nth\nRespondents’ argument is based on an obtuse readings of [14.053] of\nEuropean Union Law of Competition\n, 8\nth\ned., ed David Bellamy and [64] of\nKier Group Plc v Office of Fair Trading\n[4]\n. The passage in\nEuropean Union Law of Competition\nsuggests that the Commission may reduce a fine where the undertaking acknowledges the facts and the infringement. This tells us nothing about the stage of the penalty assessment with which I am concerned, at which the reduction is to be made. Paragraph 64 of\nKier\nsays this:\n“Separately, in response to the Statement of Objections, the OFT received new admissions from a number of undertakings that had not applied for leniency and that had not accepted the FTO in respect of one or more of their alleged infringements. Although those admissions were made at a very late stage of the investigation, the OFT decided to reduce the fine imposed at Step 4, albeit the discount was smaller than the one given to companies which had accepted the FTO. The following discounts were granted in these circumstances:\n(a) where a company made a clear admission of the facts, or alternatively a clear positive statement that it did not dispute or contest the facts, it was given a 10% discount;\n(b) where, in addition to the above, a company had clearly admitted that its conduct constituted an infringement of the 1998 Act, the OFT made a 15% reduction in the fine instead of the discount noted in the previous subparagraph. (Decision, VI.323-8)”\n25.\nA fair reading of this paragraph is that (A) the discount for admitting the facts was taken into account at Step 4 and (B) it was subsumed into a 15% reduction for ultimately admitting not only the facts, but the contravention itself. In other words it is inconsistent with the 3\nrd\nand 5\nth\nRespondents’ argument, which I reject.\n26.\nThe second matter is what is said to be the uncertainty in the state of the law. There is nothing in the evidence filed by either the 3\nrd\nor the 5\nth\nRespondent, which suggests that they misunderstood the law and that this in some way contributed to the contravention. I have already referred to the affirmation of Mr Chan Hon Wing. Mr Chan describes the arrangement that he entered into with the 5\nth\nRespondent as “\nlicence borrowing\n” in [25] of his affirmation and he suggests it is common industry practice, although he does not make clear whether he is referring to the construction industry generally or HKHA’s DCS in particular. Mr Chan does not address clause 16 of the undertaking he signed with the HKHA when the 3\nrd\nRespondent was admitted to the HKHA’s list of approved decoration contractors, which expressly prohibits sub-letting work; although it is implicit in some of what he says that because of the way in which the contractors worked, including using a site office provided by the HKHA, that the HKHA’s staff must have known that licence borrowing was taking place. In [40]–[41] Mr Chan says this:\n“40. Apart from a simple PowerPoint slide on no pie-sharing used by the HA, there is no other notice or warning, whether from the estate management, the HA, the Commission or any other authority, informing the designated contractors that their conducts could amount to a breach of the new competition laws in Hong Kong Futther, to my understanding, there was not a single act taken against any of the designated contractors in relation to any anti-competition conduct prior to the involvement of the Commission.\n41. Indeed, during the relevant period of carrying out the Works at the Estate, there was uncertainty as to the lawfulness of the conducts in question. In any event, the 3\nrd\nRespondent is now willing to concede on its liability.”\n27.\nMr Chan does not explain what “uncertainty” he is referring to, how he suggests it was caused or what difference it made. Mr Chan exhibits to his affirmation an email to the 5\nth\nRespondent (who is a sole proprietor) dated 5 January 2017 which says (in translation from Chinese):\n“In relation to the decoration project for Hong Kong Authority’s Home Ownership Scheme flats in King Tai Court, San Po Kong, please do not engage in price fixing and / or conduct of ‘pie sharing’ with other contractors, and all decoration work shall fulfill the requirements under Hong Kong legislations and of the HA.”\n28.\nThe 5\nth\nRespondent confirms the arrangements described in Mr Chan’s affirmation to be correct in the evidence he also filed on 27 August 2020. I can see no sensible reason for concluding that either the 3\nrd\nor 5\nth\nRespondent were confused about the state of the law and this contributed in any shape or form to their contravention of the\nOrdinance\n. No reduction in the penalty should be made on this ground.\n29.\nMr Ngai argued that if reject, as I do, his argument that the 3\nrd\nand 5\nth\nRespondents should be treated as one entity for the purpose of imposing a penalty there are other mitigating matters specific to the 3\nrd\nRespondent’s position. They are that the 3\nrd\nRespondent was not directly involved in the contravention and the fact that it did not make a profit out of it. I do not consider these justify any reduction in the penalty. The 3\nrd\nRespondent’s readiness to breach its undertaking to the HKHA not to sub-licence the work and its failure to provide any supervision at all in my view cannot sensibly be viewed as ameliorating the contravention. As I explain in [20] of the 1\nst\nPenalty Decision, properly understood it is the converse of the matters relied on by the 3\nrd\nRespondent, knowing of a pie-sharing arrangement and making a profit out of it, which might be viewed as aggravating factors. The absence of them does not in my view mitigate responsibility for the contravention.\nStep 3\n30.\nStep 3 is the statutory cap. The 3\nrd\nRespondent relying on its now audited turnover for the relevant period, HK$44,584,104, submits that the cap is HK$4,458,410.40, representing 10% of the undertakings total turnover for each year in which the contravention occurred (\ns93(3)(a)\n) which is more than the HK$4,135,425.40 penalty proposed by the Commission. Nothing turns on this other than, as I have already explained, it appears inconsistent with Mr Chan’s explanation of his agreement with the 5\nth\nRespondent.\nStep 4\n31.\nThe 3\nrd\nand 5\nth\nRespondents seek a 10% discount for conceding contraventions of the\nOrdinance\n. I have dealt with the approach to the assessment of a reduction to reflect cooperation and admission of liability in the 1\nst\nPenalty Decision. In that case I made a reduction of 12% for the reasons explained in the 1\nst\nPenalty Decision. The concessions were made later in the present case. This has made disposing of the proceedings more time consuming and complicated. It seems clear that the 3\nrd\nand 5\nth\nRespondents had no defence to the complaint and no reason has been advanced for them not conceding earlier. There is a limited amount of science that can be applied to the calculation of a reduction. Over time a rough scale will probably emerge as more cases are determined. In the present case I will made a reduction of 9%.\nPecuniary Penalty for 5\nth\nRespondent\n32.\nAs I have explained, the 3\nrd\nand 5\nth\nRespondents’ principle argument is that there should be one penalty imposed for which both the 3\nrd\nand 5\nth\nRespondents are jointly liable. I have rejected that argument. Submissions have not been advanced by the 5\nth\nRespondent, which address an assessment of a penalty on the 5\nth\nRespondent pursuant to\nsections 91\nto\n93\n. Although, I do not consider the absence of any financial information provided by the 5\nth\nRespondent to be satisfactory, in the absence of an objection to the Commission’s assessment of the works or the profit margin I find the value of the sales to be HK$528,754.\n33.\nI accept the Commission’s submission that the value of sales should be the starting point in assessing the penalty. The Commission does not suggest that the amount should be increased by virtue of aggravating factors. It is implicit in the Commission’s proposal that the penalty should be between HK$280,250 and HK$380,000, that unless I differ from the Commission’s view, the penalty will be favourable to the 5\nth\nRespondent in that it will be less than the value of sales. I will order that the 5\nth\nRespondent pay a penalty of HK$280,000.\nInjunctive Relief\n34.\nThe Commission seeks injunctions (as it did against the 1\nst\nand 4\nth\nRespondents) restraining the 3\nrd\nand 5\nth\nRespondents from future contraventions of the First Conduct Rule. The 3\nrd\nand 5\nth\nRespondents offer undertakings instead. These I am willing to accept, although their precise language has not been provided to the Tribunal. The Commission and the 3\nrd\nand 5\nth\nRespondents should endeavour to agree the terms of the undertakings and send them to my Clerk.\nCosts\n35.\nThe Commission seeks the following costs order against the 3\nrd\nand 5\nth\nRespondents:\n(1) The 3\nrd\nand 5\nth\nRespondents shall each pay 1/5 of the Commission’s costs of this action up to and including the hearing on 3 June 2020.\n(2) The 3\nrd\nand 5\nth\nRespondents shall each pay 1/2 of the Commission’s costs of the present hearing, including the costs incurred for the preparation of the trial originally to commence on 15 September 2020 (with 7 days reserved).\n(3) There be certificate for two counsel for the hearing on 3 June 2020, the present hearing and the original trial.\n(4) All costs are to be taxed if not agreed.\n36.\nThe 3\nrd\nand 5\nth\nRespondents accept that they should be liable for 1/5 of the Commission’s costs reduced by 30% to reflect two matters.\nFirst\n, that the costs order the Commission seeks would result in the 3\nrd\nand 5\nth\nRespondents having to pay for costs of preparation for trial that have not been incurred. This is not correct. The Commission can only recover on taxation what it has actually incurred.\nSecondly\n, that a discount of 20% on costs was given in\nW Hing 3\n, it being one of the first cases before the Tribunal. I can see no basis for making such a reduction in the present case. The matter was not complicated and the 3\nrd\nand 5\nth\nRespondents clearly contravened the First Conduct Rule. If they gave accurate instructions to their lawyers and were given sensible advice they should have conceded their contravention at a much earlier stage. I will make a costs order in the terms sought by the Commission.\nDisposition\n37.\nI will make an order in the terms of [3] subject to the changes in respect of the following matter:\n(1) A reduction of 9% to reflect the 3\nrd\nRespondent’s cooperation.\n(2) The 5\nth\nRespondent’s pecuniary penalty is HK$280,000.\n(3) The Undertakings to be given by the 3\nrd\nand 5\nth\nRespondents instead of injunctions, if the language of the Undertakings can be agreed.\n(Jonathan Harris)\nPresident of the Competition Tribunal\nHigh Court\nMr Abraham Chan SC and Mr Issac Chan, instructed by King & Wood Mallesons, for the applicant\nMr Matthew Ngai and Ms Mandy Chan, instructed by Dundons, for the 3\nrd\nand 5\nth\nrespondents\nAppendix\nSTATEMENT OF AGREED FACTS (“STATEMENT”) BETWEEN THE\nCOMPETITION COMMISSION (“COMMISSION”) AND THE 3\nrd\nRESPONDENT AND THE 5\nth\nRESPONDENT\n(For the purposes of a settlement pursuant to\nRule 39\nof the\nCompetition Tribunal Rules\n,\nCap.619D\n(“\nCTR\n”) and Paragraph 72 of the Competition Tribunal Practice Direction 1 (“\nCTPD1\n”))\nPART A — INTRODUCTION\n1. On 6 September 2018, the Commission issued these proceedings pursuant to ss.92, 94, 96, 101 and 102 of the\nCompetition Ordinance\n(\nCap. 619\n) (“\nOrdinance\n”) against, inter alia, the 3\nrd\nand 5\nth\nRespondents, seeking an order for, amongst other things:\n(a) A declaration that the 3\nrd\nRespondent has contravened the First Conduct Rule pursuant to s.6 of the Ordinance;\n(b) A declaration that the 5\nth\nRespondent has been involved in a contravention of the First Conduct Rule, within the meaning of s.91 of the Ordinance;\n(c) A pecuniary penalty to be assessed;\n(d) An order that the 3\nrd\nand 5\nth\nRespondents shall cease entering into any agreement or concerted practice involving any anti-competitive conduct, or aiding, abetting, counselling or procuring, and/or being knowingly concerned in any anti-competitive conduct, in respect of any projects under the Housing Authority’s Decoration Contractor System (“\nDC\nSystem\n”);\n(e) An order that the 3\nrd\nand 5\nth\nRespondents pay the Government an amount equal to the amount of the costs of and incidental to any investigation into the conduct or affairs of the 3\nrd\nand 5\nth\nRespondent, that has been reasonably incurred by the Commission in connection with these proceedings;\n(f) Costs of the proceedings; and\n(g) Such further and/or other relief as the Competition Tribunal (“\nTribunal\n”) may consider appropriate.\n2. Subject to the approval of the Tribunal, the Commission and the 3\nrd\nand 5\nth\nRespondents agree to enter judgment on liability by way of the summary procedure as provided for in Rule 39 CTR and paragraph 72 CTPD1 and applied by the Honourable Mr Justice Harris in his Reasons for Decision dated 17 July 2020 in these proceedings (\n[2020] HKCT 3\n).\n3. This Statement is intended to be submitted pursuant to Rule 39 of the CTR and paragraph 72 of the CTPD1 for the purpose of settling the factual basis upon which the Tribunal is asked to make the orders sought.\n4. For the purpose of resolving these proceedings summarily, by reference to the facts as set out in Part B below, the Commission contends and the 3\nrd\nand 5\nth\nRespondents accept that between 16 June and 7 November 2017 (“\nRelevant Period\n”):\n(a) The 3\nrd\nRespondent had contravened the First Conduct Rule by having made and given effect to a market allocation and price-fixing agreement with Kam Kwong Engineering Company Limited (“\n1\nst\nRespondent\n”) and Goldfield N & W Construction Company Limited (“\n2\nnd\nRespondent\n”) (“\nContravention\n”);\n(b) The 3\nrd\nRespondent had permitted the 5\nth\nRespondent to manage all renovation works to be carried out in the name of the 3\nrd\nRespondent at King Tai Court, San Po Kong, Kowloon, Hong Kong (“\nEstate\n”); and\n(c) By his conduct, the 5\nth\nRespondent was involved in the Contravention within the meaning of s.91 of the Ordinance.\n5. The Commission, and the 3\nrd\nand 5\nth\nRespondents accept and acknowledge that none of the admissions made by the 3\nrd\nand 5\nth\nRespondents in this Statement shall be binding against any other Respondent in these proceedings.\n6. In the event that the Tribunal does make the proposed orders set out in Part C below, the Commission reserves the right to refer to this signed Statement for all purposes connected with or ancillary to these proceedings.\nPART B – UNDISPUTED FACTS\nB1. The Estate\n7.\nThe Estate was, at all material times, a housing estate consisting of one domestic block developed by the Housing Authority (“\nHKHA\n”) under the Green Form Subsidized Home Ownership Pilot Scheme (“\nGSH\n”).\n8. The Estate was completed in 2017, and the new owners began collecting the keys to their respective units on 20 June 2017.\n9. The Estate consists of 857 units spread over 32 floors.\nB2. The HKHA and the DC System\n10. HKHA is a statutory body which seeks to provide affordable rental housing to low-income families with housing needs, and help low-income to middle-income families to gain access to subsidised home ownership. The Estate is one of such initiatives by the HKHA.\n11. At all material times, the HKHA has operated the DC System for newly completed public rental housing estates as well as newly completed buildings for one of the HKHA’s ownership scheme, including the buildings under the GSH such as the Estate. The aim of the DC System was to protect tenants of public rental housing estates or owners of the buildings under the ownership schemes by preventing infiltration of illegal elements so that decoration works in new estates and courts can be carried out in an orderly manner.\n12. Under the DC System:\n(a) The HKHA maintains a “Reference List of Decoration Contractors” (“\nReference List\n”). Anyone may apply to be put on the Reference List but, to be successful, a contractor has to meet the eligibility criteria set by HKHA and will be checked by the police for triad connections;\n(b) When a new building is about to be ready for owners to move in, the HKHA will grant licences to a number of contractors on the Reference List for undertaking decoration works for the tenants (“\nLicence\n”). The number of contractors thus appointed (“\nDesignated DCs\n”) is based on the ratio of one contractor to every 250 flats;\n(c) Contractors are selected for appointment from a ballot‑generated priority list of all those on the Reference List. When offered an appointment, a contractor is obliged to take it up, although if there are unforeseen circumstances or valid reasons, it may decline the opportunity once during its registration on the Reference List;\n(d) Before obtaining the Licence, a contractor has to provide to HKHA (i) a valid business registration certificate, (ii) documents to prove it meets the eligibility criteria in respect of cash at bank or unutilised overdraft facility, and (iii) a surety bond;\n(e) The Designated DCs will be invited to attend a briefing session which includes a presentation about HKHA’s relevant regulations with one of the regulations being that the Appointed DCs should not agree among themselves to allocate flats to a certain contractor (referred to as “pie-sharing” in the HKHA’s briefing), but should allow tenants to choose freely which contractors they want to engage;\n(f) The tenants/owners are free to decide whether they wish to have their units decorated and, if they do, whether to engage a Designated DC or any other contractor or to decorate it themselves or by their friends or relatives;\n(g) The scope and price of any decoration works undertaken by the Designated DC for a tenant/owner is a matter between the tenant/owner and the Designated DC to negotiate; and\n(h) Designated DCs are not agents or representatives of the HKHA and any dispute or claim for loss or damage arising from the decorative works is to be dealt with and resolved between the Designated DC and the tenant/owner concerned.\n13. Each Designated DC has to enter into the Licence which is an agreement by deed with HKHA, with the title “Licence for Tenants’ Decoration Works”. By this, HKHA grants to the Designated DC the right to enter the estate and carry out decoration works on behalf of tenants.\nB3. The Contravention\nB3a. Appointment as a Designated DC for the Estate\n14. The 3\nrd\nRespondent is a limited liability company with a single director and shareholder. The 3\nrd\nRespondent has been on the HKHA’s Reference List since 2016.\n15. By letter dated 14 November 2016, HKHA invited the 3\nrd\nRespondent to be a Designated DC at the Estate.\n16. On 16 November 2016, the 3\nrd\nRespondent, by its authorized person, Chan Hon Wing, accepted HKHA’s invitation to be a Designated DC at the Estate.\n17. In early 2017, the 3\nrd\nRespondent asked and the 5\nth\nRespondent agreed, that the 5\nth\nRespondent would be responsible for managing the works on behalf of the 3\nrd\nRespondent at the Estate, and would also be responsible for recruiting onsite personnel for and on behalf of the 3\nrd\nRespondent. It was agreed that the profits would be shared by the ratio of 70% for the 3\nrd\nRespondent and 30% for the 5\nth\nRespondent, if any.\n18. At all material times (including during the Relevant Period):\n(a) The 3\nrd\nRespondent was the Designated DC of the Estate having been duly appointed pursuant to the DC System described above;\n(b) The 5\nth\nRespondent acted for and on behalf of the 3\nrd\nRespondent at the Estate, recruited all on-site personnel to work for and on behalf of the 3\nrd\nRespondent, and gave instructions to those personnel.\n19. The 3\nrd\nRespondent accepts that for the purpose of the Ordinance, the acts / omissions of all of its employees, agents, and representatives including but not limited to, the 5\nth\nRespondent are attributable to the 3\nrd\nRespondent such that it is liable for any contraventions of the First Conduct Rule that were carried out in the name of the 3\nrd\nRespondent by any of its employees, agents and/or representatives.\nB3b. Market Allocation\n20. In order to ensure that the 1\nst\n, 2\nnd\nand 3\nrd\nRespondents would not actively compete with each other for the decoration works at the Estate, the 5\nth\nRespondent, on behalf of the 3\nrd\nRespondent, entered into an allocation arrangement (“\nAllocation Arrangement\n”) with the 1\nst\nand 2\nnd\nRespondents whereby they agreed to allocate potential customers from the Estate between themselves with reference to the owners’ unit and floor number. Specifically, the agreed allocation between the 1\nst\n, 2\nnd\nand 3\nrd\nRespondents was as follows:\nUnits on 1\nst\nand 2\nnd\nFloors\nFloors\n1\nst\nRespondent\n101-104, 221-226\n5,8,9,12,15,18,21,24,27,30\n2\nnd\nRespondent\n105-108, 207-220\n4,7,10,13,16,19,22,25,28,31\n3\nrd\nRespondent\n109-110, 201-206, 227-228\n3,6,11,14,17,20,23,26,29,32\n(“\nAgreed Allocation\n”).\n21. The Allocation Arrangement was entered into in on or around June 2017 after the site office was erected at the Estate.\n22. During the Relevant Period, the 1\nst\n, 2\nnd\n, and 3\nrd\nRespondents carried out the decoration works in accordance with the Allocation Arrangement.\nParticulars\n(a) In order to facilitate the performance of the Allocation Arrangement, persons acting for and on behalf of the 3\nrd\nRespondent (including the 5\nth\nRespondent) had in their possession notebooks which recorded the units and floors assigned to the 3\nrd\nRespondent under the Agreed Allocation (\n“Notebooks”\n). As the person responsible for the works on behalf of the 3\nrd\nRespondent, the 5\nth\nRespondent instructed persons acting for and on behalf of the 3\nrd\nRespondent to only solicit business from persons living in units/floors assigned to the 3\nrd\nRespondent.\n(b) The Notebooks were used by the 5\nth\nRespondent and persons acting on behalf of the 3\nrd\nRespondent as a point of reference during the course of business in particular, to identify owners from whom to solicit (and/or not solicit) business at the Estate. Persons acting on behalf of the 3\nrd\nRespondent were asked to distribute business cards at the floors allocated to the 3\nrd\nRespondent;\n(c) Whenever a person acting for and on behalf of the 3\nrd\nRespondent:\n(1) was approached by a unit owner in the Estate; or\n(2) wished to solicit a person who appeared to be a unit owner in the Estate,\n(d) If the owner’s unit or floor was allocated to either the 1\nst\nor 2\nnd\nRespondent, persons acting on behalf of the 3\nrd\nRespondent (including the 5\nth\nRespondent) would decline to accept the business and/or direct the owner to the relevant Respondent which had been allocated with such unit or floor; and\n(e) As a result of the Allocation Arrangement, the 5\nth\nRespondent on behalf of the 3\nrd\nRespondent performed decoration works exclusively on Units and floors allocated to it, namely on the 3\nrd\n, 6\nth\n, 11\nth\n, 14\nth\n, 17\nth\n, 20\nth\n, 23\nrd\n, 26\nth\n, 29\nth\nand 32\nnd\nfloor as well as units on the 1\nst\nand 2\nnd\nfloor. In total, the 3\nrd\nRespondent performed decoration works in at least 63 units.\n23. At all material times, the 5\nth\nRespondent:\n(a) Had recruited all on-site personnel to work for, and on behalf of, the 3\nrd\nRespondent;\n(b) On behalf of the 3\nrd\nRespondent agreed to the Agreed Allocation;\n(c) Had actively dealt with potential customers in accordance with the Allocation Arrangement and the particulars as set out at paragraph 22 above; and\n(d) Had directed the agents, and/or representatives of the 3\nrd\nRespondent to give effect to the Allocation Arrangement by only soliciting business from the units/floors allocated to the 3\nrd\nRespondent in accordance with the Agreed Allocation in accordance with the particulars as set out at paragraph 22 above.\n24. In the premises:\n(a) By virtue of the matters stated at paragraphs 20 to 22 above, the Allocation Arrangement was a market and/or customer allocation agreement which allocated the owners (i.e. actual or potential customers) between the 1\nst\n, 2\nnd\n, and 3\nrd\nRespondents. The object of the Allocation Arrangement was to prevent, or restrict, or distort competition in relation to the provision of decoration works for the Estate;\n(b) The 1\nst\n, 2\nnd\n, and 3\nrd\nRespondents had accordingly made and gave effect to an agreement/concerted practice with the object of preventing, or restricting, or distorting competition in Hong Kong, in contravention of the First Conduct Rule; and\n(c) Such conduct constitutes ‘serious anti-competitive conduct’ within the meaning of s. 2(1) of the Ordinance.\n25. Also, with regards to the Allocation Arrangement, the 5\nth\nRespondent was a person involved (within the meaning of s.91 of the Ordinance) in a contravention of the First Conduct Rule as the 5\nth\nRespondent had:\n(a) On behalf of the 3\nrd\nRespondent entered into the Allocation Arrangement with the 1\nst\nand 2\nnd\nRespondents;\n(b) Been knowingly concerned in the entering of the Allocation Arrangement as per paragraph 23 above; and\n(c) Aided, abetted, counseled, and/or procured, the giving effect of the Allocation Arrangement by the 3\nrd\nRespondent as per paragraph 23 above.\nB3b. Price Coordination Arrangement\n26. On 16 June 2017, the 1\nst\n, 2\nnd\n, and 3\nrd\nRespondents had also engaged in the concerted practice of exchanging and coordinating the content and price of the standard decoration packages on offer to the owners of the units in the Estate (“\nPrice Coordination Arrangement\n”).\n27. As respects the Price Coordination Arrangement, the 5\nth\nRespondent, on behalf of the 3\nrd\nRespondent, agreed with representatives of the 1\nst\nand 2\nnd\nRespondents that the 4\nth\nRespondent would procure and produce in Chinese text leaflets for use to promote certain standard packages for decoration services.\n28. In accordance with this agreement, sometime before 16\nth\nJuly 2017, the 5\nth\nRespondent liaised with the 4\nth\nRespondent to determine the 3\nrd\nRespondent’s proposed prices to various standardised decoration packages.\n29. The 4\nth\nRespondent subsequently produced one set of leaflets for each of the 1\nst\n, 2\nnd\n, and 3\nrd\nRespondents (\n“Leaflets”\n, attached herein together with the agreed English translations, as\nAnnex A\n). The Leaflets for each of these contained substantially identical features:\n(a) The 3 sets of Leaflets adopted the same layout and design;\n(b) The 3 sets of Leaflets listed the same 10 items of decoration works; and\n(c) Save for the smallest Unit, there were two packages labelled “Package A”, which included items 1 to 4, and “Package B”, which included items 1 to 10, on offer, respectively.\n30. Persons acting on behalf of the 3\nrd\nRespondent (including the 5\nth\nRespondent) used the Leaflets in the course of business at the Estate.\n31. The Leaflets also stated a package price for each of the basic packages on offer in respect of each of the Units (“\nPackage Prices\n”) which only differed marginally:\nUnit Size\nRespondent\nPackage A\n(HKD)\nPackage B\n(HKD)\n1 to 2 person\n1\nst\nRespondent\n5,680\n-\n2\nnd\nRespondent\n5,780\n-\n3\nrd\nRespondent\n5,580\n-\n2 to 3 person\n1\nst\nRespondent\n8,580\n22,980\n2\nnd\nRespondent\n8,380\n23,180\n3\nrd\nRespondent\n8,480\n23,180\n1-bedroom\n1\nst\nRespondent\n13,680\n35,580\n2\nnd\nRespondent\n13,780\n35,680\n3\nrd\nRespondent\n13,580\n35,880\n2-bedrooms\n1\nst\nRespondent\n15,380\n39,480\n2\nnd\nRespondent\n15,280\n38,680\n3\nrd\nRespondent\n15,480\n39,180\n32. In the premises, it is the Commission’s case (which is not disputed by the 3\nrd\nand 5\nth\nRespondents) that:\n(a) By virtue of the matters stated in paragraphs 26 to 31 above, the Price Coordination Arrangement was an agreement/concerted practice entered into by the 5\nth\nRespondent on behalf of the 3\nrd\nRespondent with the 1\nst\nand 2\nnd\nRespondents to facilitate the Allocation Arrangement by reducing the incentive of potential customers to seek out other Respondents once the said potential customers had been approached by the Respondent which had been allocated such particular units or floors;\n(b) Together, the Allocation Arrangement and the Price Coordination Arrangement were part of a single overall agreement/concerted practice, with each instance of customer allocation and price coordination under the respective agreements/concerted practices being in pursuit of a common objective of giving effect to the single overall agreement/concerted practice with the object of such agreement being to prevent, or restrict, or distort competition in Hong Kong in contravention of the First Conduct Rule; and\n(c) Such conduct constitutes ‘serious anti-competitive conduct’ within the meaning of s. 2(1) of the Ordinance.\n33. Also, with regards to the Price Coordination Arrangement, the 5\nth\nRespondent was a person involved (within in the meaning of s.91 of the Ordinance) in a contravention of the First Conduct Rule as the 5\nth\nRespondent:\n(a) Had actual knowledge of the Price Coordination Arrangement between the 1\nst\n, 2\nnd\n, and 3\nrd\nRespondent;\n(b) Had agreed to the Price Coordination Arrangement by liaising the 4\nth\nRespondent on the 3\nrd\nRespondent’s proposed Package Prices;\n(c) In his capacity as the person responsible for the works on behalf of the 3\nrd\nRespondent at the Estate, had directed the agents, and/or representatives of the 3\nrd\nRespondent to give effect to the Price Coordination Arrangement by using the Leaflets printed by the 4\nth\nRespondent when marketing the services of the 3\nrd\nRespondent to potential customers; and\n(d) Had, himself, given effect to the Price Coordination Arrangement by using the Leaflets and the Package Prices therein in the course of soliciting business from potential customers, and had used the Package Prices as an anchoring reference point from which to begin negotiations.\nPART C – PROPOSED ORDERS\n34. On the basis of the facts not in dispute as set out in Part B above, the Commission and the 3\nrd\nand 5\nth\nRespondents agree that judgment should be entered against the 3\nrd\nand 5\nth\nRespondents. There shall be a declaration that the 3\nrd\nRespondent has contravened the First Conduct Rule and that the 5\nth\nRespondent was a person involved (within the meaning of s.91 of the Ordinance) in the contravention of the First Conduct Rule.\n35. As for the further reliefs that are sought by the Commission, the Commission and the 3\nrd\nand 5\nth\nRespondents agree that a separate hearing should be held for the determination of the appropriate reliefs to be imposed by the Tribunal.\n36. If, pursuant to this Statement, the Tribunal disposes of these proceedings summarily, 3\nrd\nand 5\nth\nRespondents agree that there should be an order that they do pay the Commission’s costs of these proceedings.\nPART D – AGREED MITIGATING FACTOR\n37.\nIn agreeing to deal with the present proceedings in accordance with Rule 39 CTR and Section 72 CTPD1, the 3\nrd\nand 5\nth\nRespondents have adopted a reasonable cause of action which has saved time and costs of the Commission and that of the Tribunal.\n38. Further, the 3\nrd\nRespondent had no actual knowledge of the anti-competition conduct of the 5\nth\nRespondent acting in its name at the Estate. It admits liability on the basis that under the Ordinance, the 3\nrd\nRespondent and those acting on behalf of the 3\nrd\nRespondent at the Estate constitute a single undertaking.\n39. As of the date of this Statement, the 3\nrd\nRespondent has not received any payment from the 5\nth\nRespondent.\n40. The Commission will recommend to the Tribunal that the above factors be taken into account (subject to the Commission’s submissions on weight) should the Tribunal decide that an order for pecuniary penalty against the 3\nrd\nand 5\nth\nRespondents be appropriate.\nDated this the 3\nrd\nday of August 2020.\nKing & Wood Mallesons\nFor and on behalf of the Commission\nDundons Solicitors\nSolicitors for the 3\nrd\nand 5\nth\nRespondents\n[1]\nSee [3] of the 3 July 2019 decision.\n[2]\nBased on the 3\nrd\nRespondent’s assertion that works in respect of one of the units appearing on the work orders did not in fact materialize.\n[3]\n[2019] HKCT 3\n.\n[4]\n[2011] CAT 3.", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2018/CTEA000001B_2018.docx", + "file_name": "CTEA000001B_2018.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkct/2024_HKCT_1/case.json b/en_cases_hkct/2024_HKCT_1/case.json new file mode 100644 index 0000000..9417d4e --- /dev/null +++ b/en_cases_hkct/2024_HKCT_1/case.json @@ -0,0 +1,30 @@ +{ + "Date": "11 Jan, 2024", + "Action No.": "CTEA2/2022", + "Neutral Cit.": "[2024] HKCT 1", + "case_title": "COMPETITION COMMISSION V. ATAL BUILDING SERVICES ENGINEERING LTD AND OTHERS", + "page_title": "COMPETITION COMMISSION V. ATAL BUILDING SERVICES ENGINEERING LTD AND OTHERS | [2024] HKCT 1 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "CTEA2/2022", + "link": "https://www.hklii.hk/en/appealhistory/CTEA/2022/2" + }, + { + "name": "CTEA2/2023", + "link": "https://www.hklii.hk/en/appealhistory/CTEA/2023/2" + } + ], + "case_url": "https://www.hklii.hk/en/cases/hkct/2024/1", + "neutral_cit": "[2024] HKCT 1", + "court_code": "HKCT", + "content": "CTEA2A/2022 COMPETITION COMMISSION v. ATAL BUILDING SERVICES ENGINEERING LTD AND OTHERS\nCTEA 2/2022 and CTEA 2/2023\n(HEARD TOGETHER)\n[2024] HKCT 1\nCTEA 2/2022\nIN THE COMPETITION TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOMPETITION TRIBUNAL ENFORCEMENT ACTION NO 2 OF 2022\n____________________\nBETWEEN\nCOMPETITION COMMISSION\nApplicant\nand\nATAL BUILDING SERVICES ENGINEERING LIMITED\n1\nst\nRespondent\nANALOGUE HOLDINGS LIMITED\n2\nnd\nRespondent\nSHUN HING ENGINEERING CONTRACTING COMPANY LIMITED\n3\nrd\nRespondent\nSHUN HING HOLDINGS COMPANY LIMITED\n4\nth\nRespondent\nSER KA WAI\n5\nth\nRespondent\nCHENG KIT SHUN\n6\nth\nRespondent\nKWAN SIU KIN\n7\nth\nRespondent\nAND\nCTEA 2/2023\nIN THE COMPETITION TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOMPETITION TRIBUNAL ENFORCEMENT ACTION NO 2 OF 2023\n____________________\nBETWEEN\nCOMPETITION COMMISSION\nApplicant\nand\nATAL BUILDING SERVICES ENGINEERING\n1\nst\nRespondent\nLIMITED\nJOHNSON CONTROLS HONG KONG LIMITED\n2\nnd\nRespondent\nYORK INTERNATIONAL (NORTHERN ASIA) LIMITED\n3\nrd\nRespondent\nJOHNSON CONTROLS INTERNATIONAL PLC\n4\nth\nRespondent\nLEE YUI MING\n5\nth\nRespondent\n____________________\n(HEARD TOGETHER)\nBefore:\nHon Harris J, President of the Competition Tribunal in Chambers\nDate of Hearing:\n27 November 2023\nDate of Decision:\n27 November 2023\nDate of Reasons for Decision:\n11 January 2024\n_________________________________\nREASONS FOR DECISION\n_________________________________\n1.\nOn 25 October 2023 I handed down my decision in respect of applications heard on 29 August 2023 in CTEA 2/2023 (“\n1\nst\nAction\n”). The applications were for an order that a\nKam Kwong\napplication that had been made in the 1\nst\nAction (although wrongly formulated as an order for a declaration and penalty by consent\n[1]\n) by the Commission and the 1\nst\nRespondent (“\nATAL\n”) be heard together with a similar application in CTEA 2/2022 (“\n2\nnd\nAction\n”), although no such application had been issued and listed in the 2\nnd\nAction before 29 August 2023. I determined that the applications in the 1\nst\nAction and (necessarily when the requisite application was made) in the 2\nnd\nAction, be heard at or immediately after the trial of the Actions or when all the Respondents had agreed that the Actions be determined by\nKam Kwong\napplications for the reasons explained in my decision. The Commission seeks leave to appeal that decision along with directions to which ATAL and 5\nth\nand 6\nth\nRespondents (employees of ATAL) agree for the\nKam Kwong\napplications in the 2\nnd\nAction to be heard at the same time as the\nKam Kwong\napplications to be made in the 1\nst\nAction.\n2.\nI wrote to the Parties in both Actions on 18 September 2023 directing that as the Commission and ATAL sought one penalty of HK$150,000,000 be imposed in both the Actions that at the next CMC the following questions be addressed:\n“2.1\nIssue 1\n: whether one pecuniary penalty can be imposed in two proceedings;\n2.2\nIssue 2\n: if yes, the matters to be taken into account in determining the appropriate penalty;\n2.3\nIssue 3\n: when the pecuniary penalty in Action 1 should be determined (this matter was addressed in Action 2); and\n2.4\nIssue 4\n: whether the facts of the Actions make it appropriate for a single pecuniary penalty to be imposed.”\n3.\nIt was apparent from ATAL’s skeleton that it understood that my concern was whether the Tribunal could properly give one composite judgment imposing one composite fine in two proceedings. At the hearing it was accepted by both the Commission and ATAL that this would not be appropriate, although the calculation of the penalties would need to be calculated so as to avoid unfairly imposing in each proceeding a penalty, which duplicated the penalty imposed in the other proceeding. This seems to me broadly correct. As a consequence, the 2\nnd\nand 4\nth\nquestions did not require consideration.\n4.\nThe 2\nnd\nquestion is academic, because it is the same issue as that already determined in the 1\nst\nAction and in respect of which leave to appeal is sought, namely, whether the\nKam Kwong\napplication in respect of ATAL should be determined at this stage or, as I have directed, at trial or, if all the Respondents reach agreement with the Commission, at that stage. For the same reasons it seems to me that the\nKam Kwong\nProceedings in the 2\nnd\nAction should be dealt with after trial or if all the Respondents reach agreement with the Commission, at that stage. As I understand it the Commission and ATAL accept, unsurprisingly, that the\nKam Kwong\nApplications should be dealt with together, whenever that may be. I refused to grant leave to appeal. The question of when a\nKam Kwong\napplication be determined is, in my view, clearly a matter of discretion and its determination ultimately a case management decision. There is no material point of law involved. The Commission simply wish to reargue the matter before the Court of Appeal.\n5.\nI also determined, on the 1\nst\nRespondent’s application, that the Commission should disclose correspondence relating to cooperation agreements entered between two of ATAL’s employees and the Commission. Leave is also sought to appeal that decision (“\nDecision\n”). I also refused leave in respect of this application. It does not seem to me that it has been demonstrated that the appeal has a reasonable prospect of success or raises an issue on which in my view it would be helpful for the Court of Appeal to opine. However, I ordered an interim stay of my Decision until the determination of ATAL’s application to Court of Appeal.\n6.\nI will direct on the consent summons dated 18 August 2023 in CTEA 2/2023 and the summons dated 27 September 2023 in CTEA 2/2022 that the two proceedings be heard together with liberty to apply, and costs reserved. I will make no other directions until the Court of Appeal has determined the leave application in CTEA 2/2023 other than in respect of costs. In my view the vast majority of the time at the Case Management Conference involved dealing with the applications for leave to appeal and the questions I refer to in [2], which in the case of issue 1 seems from the lengthy submissions filed by the Commission to have been misunderstood by the Commission. I order that 80% of the costs in both proceedings be paid by the Commission; 20% be paid by the 1\nst\nRespondent to the  3\nrd\nto 7\nth\nRespondents in CTEA 2/2022 and 2\nnd\nto 5\nth\nRespondents in CTEA 2/2023 with a certificate for two counsel.\n(Jonathan Harris)\nPresident of the Competition Tribunal\nCTEA 2/2022\nMr Norman NIP SC, Ms Leticia Tang and Mr Jonathan Fung, instructed by Dentons Hong Kong LLP, for the applicant\nMr Abraham Chan SC and Mr Joshua Chan, instructed by Deacons, for the 1\nst\nand 2\nnd\nrespondents\nMs Ebony Ling, instructed by Wong Heung Sum & Lawyers, for the 3\nrd\nrespondent\nMr Dicky Cheung and Mr Jonathan Ip, instructed by Au Yeung Chan & Ho, Solicitors, for the 4\nth\nrespondent\nMr Patrick Siu, instructed by Tang & Ku Solicitors, for the 5\nth\nand 6\nth\nrespondents\nThe 7\nth\nrespondent appeared in person\nCTEA 2/2023\nMr Norman NIP SC, Ms Leticia Tang and Mr Jonathan Fung, instructed by Dentons Hong Kong LLP, for the applicant\nMr Abraham Chan SC and Mr Joshua Chan, instructed by Deacons, for the 1\nst\nrespondent\nMr Paul Shieh SC and Mr Jonathan Ng, instructed by Baker & McKenzie, for the 2\nnd\nto 4\nth\nrespondents\nMr Stephen Crosswell, solicitor advocate of Baker & McKenzie, for the 2\nnd\nto 4\nth\nrespondents\nThe 5\nth\nrespondent was not represented and did not appear\n[1]\nSee [3] of my decision in\nCompetition Commission v Kam Kwong Engineering Co Ltd\n[2020] 4 HKLRD 61.", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2022/CTEA000002A_2022.docx", + "file_name": "CTEA000002A_2022.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkdc/2005_HKDC_216/case.json b/en_cases_hkdc/2005_HKDC_216/case.json new file mode 100644 index 0000000..fcbdf6b --- /dev/null +++ b/en_cases_hkdc/2005_HKDC_216/case.json @@ -0,0 +1,26 @@ +{ + "Date": "22 Nov, 2005", + "Action No.": "DCCJ1586/2003", + "Neutral Cit.": "[2005] HKDC 216", + "case_title": "FONG CHI YUNG T/A LONG FAI BUS CO V. CHEUNG HOI YING", + "page_title": "FONG CHI YUNG T/A LONG FAI BUS CO V. CHEUNG HOI YING | [2005] HKDC 216 | HKLII", + "case_history": [ + { + "name": "DCCJ1586/2003", + "link": "https://www.hklii.hk/en/appealhistory/DCCJ/2003/1586" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkdc/2005/216", + "neutral_cit": "[2005] HKDC 216", + "court_code": "HKDC", + "content": "DCCJ001586/2003 FONG CHI YUNG t/a LONG FAI BUS CO v. CHEUNG HOI YING\nDCCJ 1586/2003 & 2569/2003\n(Consolidated)\nIN THE DISTRICT COURT OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCIVIL ACTION NOS. 1409 OF 2003 AND 2569 OF 2003\n--------------------\nBETWEEN\nFONG CHI YUNG trading as\nLONG FAI BUS CO.\nPlaintiff\nand\nCHEUNG HOI YING\nDefendant\n--------------------\nCoram : Deputy District Judge J. Ko in Court\nDates of Hearing : 25\nth\n– 29\nth\nJuly 2005 & 10\nth\n– 11\nth\nAugust 2005\nDate of submission of Plaintiff’s written reply : 22\nnd\nAugust 2005\nDate of Handing Down Judgment : 22\nnd\nNovember 2005\nJ U D G M E N T\n1.\nThis case concerns with the termination of the employment relationship between the Plaintiff (“P”) as the employer and the Defendant (“D”) as the employee in September 2002.\n2.\nPrior to the first day of trial, it was P’s pleaded case that the employment relationship between of P and D had been terminated on 3\nrd\nJuly 2002 by mutual agreement and that D had, since 4\nth\nJuly 2002, been working for P as an independent contractor. This has always been disputed by D (see Statement of Claim para.2 at Agreed Bundle p.1; Defence and Counterclaim para.5(4) at Agreed Bundle p.12; and Reply and Defence to Counterclaim para.4(6) at Agreed Bundle p.54).\n3.\nOn the first day of trial, Ms. Wong (counsel for P) informed the court that P would no longer take issue with the fact that the employment relationship between P and D had not been terminated in July 2002. Leave was granted to P to amend her pleadings accordingly.\n4.\nAs a result of the above concession made by P, it is now common ground that D had been employed by P as a coach driver up to its termination in September 2002 (see Amended Statement of Claim para.2 at Agreed Bundle p.604). How their employment relationship ended, however, is a matter in great dispute.\nOverview of the respective case of the parties\n5.\nIt is P’s case that D’s employment was terminated on 14\nth\nSeptember 2002 by mutual agreement. However, D failed and refused to inform P the whereabouts of the coach then assigned to him bearing the registration no. KJ 4376 (“the Coach”) despite requests and demands after the date of termination (see Amended Statement of Claim para.7(1) at Agreed Bundle p.606). In addition, D has also failed and refused to return to P the wireless transceiver installed on board the Coach (“the Transceiver”), the cover of the coolant reservoir, the cover of the lubricant chamber and the small engine cover of the Coach (“the 3 Covers”), as well as boarding tickets/coupons that D had collected from passengers (see Amended Statement of Claim para.7(3)-(4) at Agreed Bundle p.606).\n6.\nBy reason of the aforesaid, says P, D has breached the employment contract and committed the tort of conversion and P has suffered loss and damage as a result (see Amended Statement of Claim para.8-9 at Agreed Bundle pp.607-608). Initially, P prayed for both an order for delivery up of the Transceiver and damages. However, it has now become clear that the damages claimed by P includes the cost of replacement of the Transceiver. In the end, P only asks for damages in the total sum of $124,570.\n7.\nD denies that his employment was terminated on 14\nth\nSeptember 2002 as alleged by P. Instead, D says he was constructively dismissed on 16\nth\nSeptember 2002 when P withdrew the Coach and demanded the return of the keys to the Coach from him (see Defence and Counterclaim para.5(5) and 12 at Agreed Bundle pp.12-13 and 19-31). D is counterclaiming against P in the total sum of $23,677.70 being wages in lieu of notice, annual leave pay and end of year payment.\n8.\nD denies that he has breached the employment contract or committed conversion. It is D’s case that all along P knew where the Coach was parked. He denies having taken the Transceiver. He maintains that he had removed the 3 Covers from the Coach as a security measure to prevent the Coach from being stolen, which were handed to the police for P on 16\nth\nSeptember 2002.\nBackground\n9.\nDespite the vast difference between the parties, there is much common ground in the evidence. Mr. Iu (solicitor for D) has helpfully summarized those facts which are not in dispute in his written closing submission. They have been subjected to remarks made by Ms. Wong in her written reply.\n10.\nFor the purpose of this judgment, I have accepted the following facts to be common ground between the parties. These facts provide the backbone for the ensuring discussion and their relevance will become apparent when one turns to the specific issues in dispute.\n11.\nP is the sole-proprietress of Long Fai Bus Company (“Long Fai”) and holds the title of deputy general manager of the company. Mr. Man Tat Shing (“MAN”) is the general manager of Long Fai whereas Mr. Li Kwok Wing (“LI”) is Long Fai’s supervisor of coaches.\n12.\nLong Fai Bus Limited (“LF Limited”) was incorporated on 10\nth\nJune 2002. MAN holds 99.99 % of the shareholding in LF Limited and P holds the remaining 0.01 % shareholding. MAN and P are the only directors of LF Limited.\n13.\nAvonwin Holdings Tour Limited (“Avonwin”) was incorporated on 26\nth\nJune 2002. MAN holds 98 % of the shareholding in Avonwin and P holds the remaining 2 % shareholding. There are 4 directors of Avonwin including MAN and P.\n14.\nLong Fai, LF Limited and Avonwin share the same address as their offices.\n15.\nD’s employment contract was negotiated and agreed upon by MAN (for and on behalf of P or Long Fai) and D in November 2001. P commenced working for Long Fai as a coach driver on 3\nrd\nDecember 2001.\n16.\nIn early January 2002, P purchased the Coach, which was then brand new, at $300,000 to $400,000. The Coach has a seating capacity of 30 (including driver). The Transceiver was installed on board the Coach for use by the driver for communication purposes. The Transceiver had a detachable front panel cover (“the Panel”). No anti-theft security measure was installed on the Coach.\n17.\nSoon after its purchase, the Coach was assigned to be driven exclusively by D. D was given one set of keys to the Coach and a spare set was kept by Long Fai.\n18.\nGenerally, Long Fai’s coaches are parked at its designated car park in Hang Mei (坑尾) in Tin Shui Wai. Shortly after the Coach was assigned to D, D obtained permission from P through MAN to park the Coach in the vicinity of D’s residence in Sung Ching San Tsuen (崇正新村) in Yuen Long. At all material times, P (and MAN) knew where D resided.\n19.\nWhat happened between 6\nth\nand 16\nth\nSeptember 2002 is hotly contested. Be that as it may, the following facts are not in dispute:\n(a)\nOn 6\nth\nSeptember 2002:\n(i)\nThere was a meeting at about 11 am, in San Yung Kee Restaurant between P, D and other Long Fai’s drivers including LI and Mr. Cheng Yee-yan.\n(ii)\nThere was another meeting at about 2 pm in Kar Shing Restaurant, which was attended by P, D, LI, Cheng Yee-yan and Mr. Yuen Kin Wing (“Yuen”). Yuen was also a driver of Long Fai.\n(b)\nOn 14\nth\nSeptember 2002 (Saturday), there was a meeting between P and D in Kar Shing Restaurant, which ended at about noon.\n(c)\nOn 16\nth\nSeptember 2002 (Monday):\n(i)\nIn the morning, D called MAN informing MAN that he was not well and asked for half day sick leave.\n(ii)\nAgain in the morning, MAN arranged the Coach, which was then parked at Yung Yuen Car Park (“YYCP”) in Yuen Long, to be towed away. The location of YYCP is about 15 minutes walking distance from D’s residence.\n(iii)\nIn the afternoon, MAN received the keys of the Coach from D at a police station.\n20.\nOn 4\nth\nNovember 2002, D filed a claim against P in the Labour Tribunal under LBTC 10532/2002 claiming for $12,000 being wages in lieu of notice, $5,600 being arrears of wages, $2,209.30 being annual leave pay, $9,468.40 being end of year pay and $220 being order fee, totaling $29,497.70 (see Form of Claim at Agreed Bundle pp.144-145).\n21.\nD, P and MAN gave evidence at the Labour Tribunal on 28\nth\nNovember 2002.\n22.\nOn 9\nth\nJanuary 2003, the Labour Tribunal made an Award in favour of D on P’s admission for $5,600 being arrears of wages and $220 being order fee, totaling $5,720.00, and adjourned D’s remaining claim for further consideration (see Award at Agreed Bundle p.186).\n23.\nOn 20\nth\nMarch 2003, P issued the Writ in this action against D.\n24.\nOn 23\nrd\nApril 2003, the Labour Tribunal ordered D’s remaining claim in LBTC 10532/2002 to be transferred to the District Court (see Order at Agreed Bundle p.190). By an Order dated 23\nrd\nMay 2003, D’s remaining claim in LBTC 10532/2002 has been consolidated with P’s claim in this action and becomes the counterclaim herein.\nMain issues in dispute\n25.\nThe main issues in dispute can be summarized as follows:\n(a)\nWhat were the terms of the employment contract between P and D?\n(b)\nHow was the employment contract terminated? In particular:\n(i)\nWhether, as alleged by P, D’s employment contract was terminated by mutual agreement on 14\nth\nSeptember 2002?\n(ii)\nWhether, as alleged by D, D was constructively dismissed by P on 16\nth\nSeptember 2002?\n(c)\nWhether D was in breach of the employment contract and/or committed the tort of conversion as alleged by P? If so, whether P is entitled to the damages claimed?\n(d)\nIf D was constructively dismissed by P as alleged by D, whether D is entitled to his counterclaim? In particular, whether D was entitled to any end of year payment under his employment \n\t\t\t\tcontract?\n(e)\nWhether D’s employment contract is unenforceable by reason of illegality?\nWitnesses and evidence at trial\n26.\nP testified at trial. She also called MAN and LI as her witnesses.\n27.\nD testified at trial. He also called YUEN as a witness.\n28.\nIn addition, parties have adduced 2 agreed bundles of documentary evidence (“Agreed Bundle”).\nWhat were the terms of the employment contract between P and D?\n29.\nThe natural starting point for the discussion is on the terms of the employment contract between P and D.\n30.\nThe terms of the employment contract will be particularly relevant to the following issues discussed below, namely, whether D was in breach of the employment contract (as alleged by P), whether D was constructively dismissed by P (as alleged by D) and whether D is entitled to any end of year payment (as alleged by D).\n31.\nOn pleadings, both parties agree the following terms were terms of the employment contract (see Defence and Counterclaim para.5(3)(a)-(d) at Agreed Bundle pp.10-11; Re-Amended Reply and Defence to Counterclaim para.4(2) at Agreed Bundle p.612):\n(a)\nthe monthly basic salary of D was $12,000;\n(b)\neither party might terminate the employment contract by giving the other party 1 month’s advance notice;\n(c)\nD was entitled to 1 rest day in every period of 7 days; and\n(d)\nD was entitled to 7 days’ annual leave with pay every year.\n32.\nIn addition to the agreed terms, P has pleaded that D was required under the employment contract (see Amended Statement of Claim para.3 at Agreed Bundle pp.604-605):\n(a)\nto provide service as driver on such coach or coaches as P might in her absolute discretion assigned to him;\n(b)\nto ply such route or routes according to such time schedule as P might in her absolute discretion designate;\n(c)\nto park the coach D had driven at such place as might be designated by P and/or to inform P the whereabouts of the coach after D had completed his order so as to enable P to get it back herself or through other employee/contractor;\n(d)\nto keep in safe custody the door key(s), the engine ignition key(s) and the wireless transceiver mounted on the coach at the times when D was required to take control of a coach over a period of time and to deliver the same to P as and when required; and\n(e)\nto keep all boarding ticket(s)/coupons collected from passengers in safe custody in respect of particular journey(s) when boarding ticket(s)/coupons were used and to deliver the same to P as and when required.\n33.\nP is also relying on an implied term that D should not intentionally cause damage to the coach he was assigned to drive and/or to remove any part therefrom without the express authorization or consent from P (see Amended Statement of Claim para.4 at Agreed Bundle p.605).\n34.\nD has either denied or not admitted the above terms pleaded by P (see Defence and Counterclaim para.7 at Agreed Bundle p.13 and para.9 at Agreed Bundle p.19). In addition to the abovementioned agreed terms, D pleads that he was entitled to end of year payment equivalent to 1 month’s basic salary under his employment contract (see Defence and Counterclaim para.5(3)(e) at Agreed Bundle p.11).\n35.\nI observe from the evidence at trial that the parties are in fact on common ground that D was required under the employment contract:\n(a)\nto provide service as driver on such coach or coaches as P might in her absolute discretion assigned to him;\n(b)\nto ply such route or routes according to such time schedule as P might in the absolute discretion designate;\n(c)\nto keep in safe custody the door key(s), the engine ignition key(s) and the wireless transceiver mounted on the coach at all times when D was required to take control of a coach over a period of time and to deliver the same to P as and when required; and\n(d)\nto keep all boarding ticket(s)/coupons collected from passengers in safe custody in respect of particular journey(s) when boarding ticket(s)/coupons were used and to deliver the same to P as and when required.\n36.\nInsofar as the parking of the coach assigned by P to D is concerned, the evidence at trial (which are again not disputed) is that soon after the Coach had been assigned to D, he obtained permission from P through MAN to park the Coach in the vicinity of D’s residence in Yuen Long instead of in Long Fai’s designated car park in Tin Shui Wai.\n37.\nInsofar as the implied term alleged by P is concerned, it must be looked at in 2 parts:\n(a)\nthat D should not intentionally cause damage to the coach he was assigned to drive; and/or\n(b)\nD should not remove any part from the coach he was assigned to drive without the expressed authorization or consent from P.\n38.\nWhilst D denies the first limb of the alleged implied term on pleading, Mr. Iu submits in his written closing submission that there was a bailment of the Coach by P to D. Relying on\nGilchrist Watt & Sanderson Pty Ltd v. York Products Pty Ltd\n[1970] 3 All ER 825\n, he submits that D (as bailee) was under an obligation to take due care of the Coach. Curiously, Ms. Wong submits in her written reply that there was no bailment and that\nGilchrist Watt & Sanderson Pty Ltd v. York Products Pty Ltd\nis not applicable but without giving any reason.\n39.\nIf, according to Mr. Iu, D was obligated to take due care of the Coach, D must be taken to be under an obligation not to intentionally cause damage to the Coach. It therefore seems to me that both parties are in fact in agreement that at least D was under an obligation not to intentionally cause damage to the Coach. Whether such obligation flows from the employment contract (as alleged by P) or from the law of bailment (as alleged by D) is perhaps academic in the circumstances of this case.\n40.\nAs to the second limb of the alleged implied term, it is clear from MAN’s testimony that Long Fai had not given instructions to its drivers that they had first to obtain Long Fai’s authorization or consent before they could remove anything from the coaches assigned to them. In any event, P has adduced no evidence as to why this limb should be implied into the employment contract.\n41.\nIn the premises, I only find that it was an implied term of the employment contract that D was under an obligation not to intentionally cause damage to the Coach.\n42.\nAs to whether D should be entitled to end of year payment under the employment contract, the matter is much more complicated and will be discussed later in this judgment when I consider D’s counterclaim.\n43.\nLastly, it must be noted that parties are also in disagreement on pleading as to the term of the employment contract entitling D to any “order fee” for additional work not covered by his basic salary (see paragraphs 5(3)(f)-(g) of Defence and Counterclaim at Agreed Bundle 11-12; and paragraph 4(4)-(5) of the Re-Amended Reply and Defence to Counterclaim at Agreed Bundle pp.612-613).\n44.\nSince D’s claim for “order fee” has apparently been dealt with by the Labour Tribunal in the Award dated 9\nth\nJanuary 2003 and D is not claiming for any “order fee” in his counterclaim herein, it is not necessary for me to resolve this dispute and I shall say no more.\nHow was the employment contract terminated?\n45.\nThe main dispute in this case is how the employment relationship between P and D ended.\n46.\nTo recap, it is P’s case that D’s employment contract was terminated by mutual agreement on 14\nth\nSeptember 2002. On the other hand, it is D’s case that D was constructively dismissed by P on 16\nth\nSeptember 2002.\n47.\nIn order for P to succeed, P must establish that she has given oral notice to D on 6\nth\nSeptember to terminate D’s employment on 14\nth\nSeptember. The relevant conversation was between P and D in person. MAN was not present at the meetings. Although LI was present at both meetings and YUEN had attended the afternoon one, the discussion between P and each employee was apparently held individually at a separate table and so they do not know what was said between P and D.\n48.\nAccording to P:\n(a)\nShe met with D and other employees of Long Fai in the morning of 6\nth\nSeptember 2002 for the purpose of making arrangement to transfer the business of Long Fai to LF Limited. Insofar as D is concerned, she put 2 documents to him. The object of the first document was to confirm that D had been a self-employed independent contractor of Long Fai for the period from 3rd December 2001 to 2nd December 2002. The object of the second document was to confirm that D would be a self-employed independent contractor of LF Limited from 3rd December 2002 to 2nd December 2003. When the meeting concluded, D refused to sign both documents.\n(b)\nP met with D and other employees of Long Fai again in the afternoon of 6th September 2002. At the conclusion of the meeting, D still refused to sign both documents. P then told D that since D had refused to sign the documents, D’s employment would be up to 14th September 2002. D replied it was fine to him and asked to calculate his outstanding wages. P asked D to return on 14th September to do the calculation.\n49.\nHaving considered all the evidence before me, I am not satisfied that oral notice has been given on 6\nth\nSeptember.\n50.\nTo start with, P’s testimony in court is contradicted by MAN’s testimony at the Labour Tribunal. On 28\nth\nNovember 2002, MAN has told the Labour Tribunal that after he had learnt from P that D had refused on 6\nth\nSeptember to change his working status, he instructed P on 7\nth\nSeptember 2002 to tell D that D’s employment would be terminated on 15\nth\nSeptember and D needed not report to work on 16\nth\nSeptember (see transcript at 26H-I, T-V and 27O-175G at Agreed Bundle pp.173-174).\n51.\nIn my view, P’s testimony is inconsistent with MAN’s testimony at the Tribunal in 2 material aspects. First, Man said he only gave instructions to P to terminate D’s employment on 7\nth\nSeptember. So, P could not have given oral notice to D on 6\nth\nSeptember. Secondly, Man’s understanding of the effect of the notice is to terminate D’s employment with effect from 16\nth\nSeptember. This, again, is different from P’s case that D’s employment was terminated on 14\nth\nSeptember. When Man is cross-examined on the above inconsistencies, he simply says that P might not have followed his instructions and that he does not know what P has in fact told D on 6\nth\nSeptember. Given MAN’s role in Long Fai as general manager and P’s admission that she relied on MAN for Long Fai’s administrative matters, the above inconsistencies are remarkable and Man’s excuses unsatisfactory. Furthermore, if P had already given notice of termination to D, it would not be necessary for MAN to instruct P to do that again!\n52.\nSecondly, according to P’s pleaded case either party might terminate D’s employment by giving 1-month advance notice. So, if P had given notice to terminate D’s employment on 6\nth\nSeptember, such termination should take effect on 5\nth\nOctober – i.e. 1 month from 6\nth\nSeptember! However, it is P’s testimony that the termination would take effect on 14\nth\nSeptember. How could this possible?\n53.\nP tries very hard to explain away in cross-examination by alleging that prior to 6\nth\nSeptember the parties had reached another agreement to amend the notice period from 1 month to 7 days. When she was pressed hard on the timing of this alleged prior agreement, she first said that the agreement was made in early September 2002. Later on, she alleged that it was made in the month of July 2002. In any event, the alleged prior agreement, whether in early September or in July, has never been pleaded.\n54.\nThirdly, if P is correct that D’s employment ended on 14\nth\nSeptember and that she had asked D to return to calculate the outstanding wages, one would expect P to be prepared to calculate D’s outstanding wages on 14\nth\nSeptember. It is noted that, in the past, D had received his basic salary of $12,000 by cheques or cash (see Agreed Bundle at pp.263-273). However, it is clear from P’s testimony that she was not in a position to do so on that day. She was admittedly not ready to calculate D’s outstanding wages and did not bring any cash or cheques for payment to D. This leads one to doubt if P had really meant to terminate D’s employment and calculate D’s outstanding wages on 14\nth\nSeptember.\n55.\nOther than the above obvious discrepancies, I have also causes to doubt the genuineness of P’s case.\n56.\nOn pleadings, P has always denied that there was a second meeting on 6\nth\nSeptember (see Re-Amended Reply and Defence to Counterclaim para.7(5) at Agreed Bundle p.616; and Defence and Counterclaim para.12(5)-(6) at Agreed Bundle p.21). The implication, insofar as P’s pleaded case is concerned, must be that the oral notice to terminate D’s employment was given in the morning meeting (see Re-Amended Reply and Defence to Counterclaim para.7(1) at Agreed Bundle p.615; Defence and Counterclaim para.12(1) at Agreed Bundle p.19). Yet, P admits during cross-examination that there was a second meeting on 6\nth\nSeptember and further alleges in re-examination that the alleged oral notice was given in the afternoon meeting. So, P’s testimony in court is not consistent with her pleadings.\n57.\nAgain on pleadings, P has always alleged that she had only showed D one document on 6\nth\nSeptember (see Re-Amended Reply and Defence to Counterclaim para.7(3) at Agreed Bundle p.616; Defence and Counterclaim para.12(3) at Agreed Bundle p.20). P’s former solicitors have even supplied a copy of this alleged single document to D’s solicitors upon the latter’s request (see Agreed Bundle pp.281-283). However, it is quite apparent from P’s testimony that the document supplied by P’s former solicitors is none of the 2 documents mentioned in her testimony. The document supplied by P’s former solicitors is concerned with the period between 4\nth\nJuly 2002 and 3\nrd\nJuly 2003 (see Agreed Bundle p.283). However, according to P’s testimony in court, the 2 documents put to D should relate to the periods of 3\nrd\nDecember 2001 to 2\nnd\nDecember 2002 and 3\nrd\nDecember 2002 and 2\nnd\nDecember 2003 respectively.\n58.\nP’s case that D had demanded for $29,000 on 14\nth\nSeptember is also suspicious. The amount allegedly demanded by D (i.e. $29,000) matches the amount of D’s claim in the Labour Tribunal (i.e. $29,497.70, see Agreed Bundle p.144) closely. According to D, he was only advised by the Labour Department on 16\nth\nOctober 2002 that his claim against P would be in the region of $29,000 odd and so he could not have made such demand on 14\nth\nSeptember. Curiously, when D was interviewed by the police under caution on 16\nth\nSeptember 2002, no question was put to him about this alleged demand of $29,000 (see Agreed Bundle pp.289-292)! This subject was only brought up during the interview on 1\nst\nNovember 2002 (see question and answer no. 8 in D’s cautioned statement at Agreed Bundle p.322). If D had really demanded for $29,000 on 14\nth\nSeptember, would MAN have failed to mention it to the police when he reported the matter? D’s solicitors have consistently requested for a copy of MAN’s statement to the police to confirm what had been said by MAN to the police but to no avail (see D’s solicitors’ letters at Agreed Bundle pp.542, 545, 548, 550, 555 and 558). P has never disclosed MAN’s statement to the police to D or at trial. When MAN is cross-examined, he initially said he did not recall whether he had mentioned D’s demand of $29,000 when he made his initial report to the police. Upon further cross-examination by Mr. Iu, MAN then admits that he probably have only told the police well after 16\nth\nSeptember 2002 about the demand when he was requested by the police to give a further statement. In my view, MAN’s testimony not only casts doubt on P’s testimony but supports D’s testimony that no demand for $29,000 was made on 14\nth\nSeptember.\n59.\nTurning to D’s case that there had not been any notice to terminate his employment, his case tends to be supported by the following evidence:\n(a)\nThe content of his cautioned statement given at 1835 hours on 16\nth\nSeptember 2002 (see Agreed Bundle pp.289-291) is consistent with D’s defence. It is highly unlikely that D could have thought out his whole defence at this early stage!\n(b)\nAccording to D, he had queried the terms of the documents and refused to sign them on 6\nth\nSeptember 2002. At the conclusion of the morning meeting, P said she would discuss the terms with MAN and revert to D and other employees. At the afternoon meeting, P told D and the other employees that MAN had refused to alter the terms of the documents. In the end, P said she would speak to MAN again and asked D to re-consider his stance and gave her an answer by 14\nth\nSeptember. She further warned D that if he should refuse to sign the documents, he would be fired. D then asked P to confirm if P had decided to fire him but there was no answer from P. Curiously, P agrees under cross-examination that she has indeed told D in the afternoon meeting that D would have to resign if he still refused to sign the documents by 14\nth\nSeptember.\n(c)\nAccording to D, he called in sick in the morning on 16\nth\nSeptember and requested for half-day sick leave. MAN confirms that he has received such call from D. If D’s employment had already been terminated on 14\nth\nSeptember, why would D need to ask for sick leave from MAN? What is even more surprising is MAN’s response over the same call. He testifies in court that he had scolded D for not calling earlier and in any event it was not necessary for D to call as D had already been fired. This is inconsistent with his evidence at the Labour Tribunal. Man’s alleged scolding of D does not feature in his testimony in the Labour Tribunal on 28\nth\nNovember 2002. Instead, Man is reported to have told the Labour Tribunal that his reply to D was simply, “Alright, can’t help it” (“好呀，冇辦法囉”) (see transcript at 31P at Agreed Bundle p.178).\n60.\nAccording to D, there was another meeting between MAN and D in the evening of 6\nth\nSeptember 2002. At the conclusion of the meeting, D told MAN that P should follow the employment law if P wished to fire him. MAN asked D to continue with his work. Ms. Wong criticizes D in her written closing submission for not mentioning this meeting in D’s witness statement filed herein. However, D has apparently mentioned such a meeting when he testified on 28\nth\nNovember 2002 at the Labour Tribunal (see transcript at 4A-E at Agreed Bundle p.151).\n61.\nMs. Wong, in her written closing submission, submits that the fact that P had indicated to D on 6\nth\nSeptember 2002 that the employment relationship would terminate on 14\nth\nSeptember 2002 and they would do the calculation on that day is reflected in D’s witness statement to the Labour Tribunal at Agreed Bundle p.523. However, I cannot discern such an indication in D’s said witness statement.\n62.\nIn her written closing submission, Ms. Wong on the one hand criticizes D for going to the Labour Department (as opposed to the police or contacting P) on 16\nth\nSeptember 2002 when he found the Coach missing. On the other hand, D was also criticized for going to P after his enquiry with the Labour Department. I find these criticisms unjustified. According to D, he immediately called MAN to enquire if MAN had repossessed the Coach when he discovered the Coach missing. MAN did not give him a direct answer (“支吾以對”), which gave him the impression that P wanted to fire him. That, together with the fact that he had been asked to sign the 2 documents on 6\nth\nSeptember, prompted him to seek advise from the Labour Department. I find D’s action in seeking advise from the Labour Department as opposed to contacting P or the police reasonable. It is also D’s evidence that he called P at about 4 pm after he had consulted the Labour Department to enquire if she had taken the Coach. I find nothing remarkable in D calling P at that stage. D had earlier called MAN and could not get a definite answer as to the whereabouts of the Coach. He then went to the Labour Department and was advised to send letters to P to preserve his rights and to wait for 7 days. I find it reasonable for him then to enquire with P to clarify his position in relation to the Coach.\n63.\nMs. Wong also submits that D’s and YUEN’s testimony are in complete contradiction insofar as the telephone conversation between them on 16\nth\nSeptember 2002 is concerned. This is not supported by the evidence. On the contrary, I find their evidence generally consistent with each other. What is clear from their evidence is that D had learnt from YUEN that MAN had made accusation against him to the police. And this has, according to D, prompted him to go to the police on 16\nth\nSeptember.\n64.\nAll in all, I find D’s case more believable. I find that P has not given oral notice to D on 6\nth\nSeptember 2002 to terminate D’s employment on 14\nth\nSeptember 2002.\n65.\nThe next question is whether D was constructively dismissed by P in the circumstances of this case.\n66.\nThe starting point is the principle laid down in\nWestern Excavating (ECC) Ltd v. Sharp\n[1978] I.C.R. 221 at 227 that:\n“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer's conduct. He is constructively dismissed.”\n67.\nIn my view, the following facts are pertinent to the question of whether D was constructively dismissed:\n(a)\nOn 6\nth\nSeptember 2002, P put 2 documents to D with the view to change the nature of D’s engagement from an employee to an independent contractor. D refused to sign any of these documents. This much is admitted by P.\n(b)\nOn 15\nth\nSeptember 2002, MAN has apparently complained to the police against D for criminal damage of the Coach and theft of the 3 Covers. This has caused the police to interview D under caution on 16\nth\nSeptember 2002 and these allegations were put toD in the interview (see record of interview at Agreed Bundle pp.289-293).\n(c)\nIn the morning of 16\nth\nSeptember, P recovered possession of the Coach through MAN. In the afternoon, MAN demanded for the return of and eventually obtained the keys from D inside police station.\n68.\nWhen stripped of the purported context of having given due notice of termination, P’s action of withdrawing the keys and the Coach from D without assigning a replacement coach to him was without legal basis. The very work D was employed to do according to the employment contract was to provide service as a coach driver of such coach assigned by P. D was prevented from performing his duties as a coach driver without the Coach. The withdrawal of the Coach without assigning a replacement coach must go to the root of the employment contract. When one further takes into account the fact that P had unilaterally tried to alter the nature of D’s engagement earlier and P’s complaint to the police against D, P’s conduct on the whole, viewed objectively, show an intention no longer to be bound by the employment contract.\n69.\nOn the evidence, therefore, I find D was constructively dismissed by P on 16\nth\nSeptember 2002.\nWhether D was in breach of the employment contract and/or committed the tort of conversion as alleged by P? If so, whether P is entitled to the damages claimed?\n70.\nP is claiming against D for the following loss and damage (see Amended Statement of Claim para.9 at Agreed Bundle pp.607-608):\n(1)\nReplacement of the Transceiver\n$4,000\n(2)\nTowing charges\n$470\n(3)\nChange of lubricant with service fee\n$1,000\n(4)\nLoss of hiring contracts\n$6,000\n(5)\nReplacement of car parts with service fee\n$1,100\n(6)\nHiring of replacement coach for completion of customers’ contracts\n$9,000\n(7)\nDamages paid to customers in respect of disruption of contracts\n$100,000\n(8)\nAdditional wages paid to staff\n$3,000\nTOTAL\n$124,570\n71.\nItem (1) relates to the Transceiver. The remaining items concern with the Coach and/or the 3 Covers. I shall now examine each item of P’s claim more closely.\n(a) The Transceiver\n72.\nIt is common ground that the Transceiver installed on board the Coach has a detachable front panel cover (“the Panel”).\n73.\nIt is P’s pleaded case that D has failed and refused to return the Transceiver to P after D’s employment was terminated. MAN describes in his witness statement filed herein how he discovered on 15\nth\nSeptember 2002 the Transceiver to be missing (at Agreed Bundle p.107):\n“Having carried with me spare keys to the Coach, I open the door and went up for an inspection. It was found that the Kenwood brand wireless transceiver was missing from the metal mount near the dashboard of the Coach.”\nThus it is clear that what P has been alleging to be missing is the Transceiver, as opposed to the Panel.\n74.\nHowever, when P and MAN testify in court they both say that it was the Panel but not the Transceiver that was found missing. This seems to be inconsistent with what has been pleaded and what is described in MAN’s statement.\n75.\nFurther, MAN has apparently omitted to mention the loss of either the Transceiver or the Panel to the police and when he testified before the Labour Tribunal. He agrees during cross-examination that he did not mention the loss of the Transceiver or the Panel when he gave his statement to the police. He has similarly omitted to mention it when he testified before the Labour Tribunal on 28\nth\nNovember 2002 (see transcript at 29S at Agreed Bundle p.176).\n76.\nCuriously, P has also made the same omission repeatedly. She mentioned only the loss of the 3 Covers but failed to mention the loss of either the Transceiver or the Panel:\n(a)\nin her statement filed with the Labour Tribunal (at Agreed Bundle p.531);\n(b)\nwhen she testified before the Labour Tribunal on 28\nth\nNovember 2002 (see the transcript at 12Q at Agreed Bundle p.159); and\n(c)\nin paragraph 6 of her supplemental witness statement dated 25th July 2005 filed herein (at Agreed Bundle 581).\n77.\nDuring cross-examination, P explains that she did not regard the Panel as lost because she had seen it inside the plastic bag D was carring on 14\nth\nSeptember and she thought D would return it to her. Hence, she did not state in her statement filed with the Labour Tribunal that the Panel was also lost. However, it is noted that she has also stated in the same statement that she had demanded D for the return of the 3 Covers on 15\nth\nSeptember. If she had then considered the 3 Covers (which she knew were kept by D) lost, why did she not consider the Panel as lost? P’s explanation is clearly untenable.\n78.\nIt has always been D’s case that he has not taken the Transceiver or the Panel away. He consistently maintains that he has put the Panel inside the drawer in the driver’s compartment of the Coach after detaching it from the Transceiver when he last got off work.\n79.\nIn view of the glaring omission on the part of P and MAN highlighted above and my doubt on the invoice produced (see below), I consider D’s version more believable. I therefore find that the Panel has not been lost.\n80.\nGiven my above finding, there can be no question of breach of the employment contract or conversion in relation to the Panel.\n(b) Item (1): $4,000 being\nthe cost of replacement of the Transceiver\n81.\nIn any event, I have grave doubt about P’s claim of $4,000 to replace the Transceiver.\n82.\nIt is true that P has produced an invoice (at Agreed Bundle p.591) to support her claim for $4,000. However, I find P’s case in this respect far from satisfactory.\n83.\nIt is P’s case that without the Panel, the whole Transceiver would have to be replaced. P’s testimony is that she asked MAN and LI to purchase a replacement transceiver for the Coach. After the purchase, the new transceiver was installed in the Coach and she was given the said invoice. However, when it is pointed out to her during cross-examination that the said invoice is apparently dated 10\nth\nDecember 2001 (i.e. long before 15\nth\nSeptember 2002 when MAN allegedly discovered the Panel missing), she replies that the said invoice is only produced for reference purpose.\n84.\nMAN’s initial testimony in court is already quite different from that of P. He says that the invoice at Agreed Bundle p.591 was the invoice for the Transceiver (i.e. the one that was lost). He further alleged that the Transceiver was installed on the Coach about 1-2 days after purchase. However, when he is confronted with the fact that the said invoice (dated 10\nth\nDecember 2001) pre-dated the purchase of the Coach (i.e. January 2002, see the certificate of particulars of the Coach at Agreed Bundle p.192), he simply agrees without offering any explanation!\n85.\nIf P has indeed purchased a replacement transceiver, one would expect some documentary evidence such as invoice or receipt to evidence the purchase. This is all the more so as P should be very astute in retaining relevant evidence given the events that P said had happened in September 2002. I consider it most unsatisfactory that P is unable to produce any documentary evidence. Worse still, neither P nor MAN can offer any consistent and satisfactory account on the absence of an invoice/receipt.\n86.\nAll in all, I find P has not discharged her burden of proving Item (1) of her claim.\n(c) The Coach\n87.\nIt is P’s case that D has unlawfully failed and/or refused to inform P the whereabouts of the Coach despite repeated requests and demands after the date of termination of the employment contract.\n88.\nTo succeed in this regard, P must establish that neither she nor MAN knew where the Coach was at the material time. If they had all along known where the Coach was parked, there could be no question of D failing or refusing to inform them.\n89.\nIt is common ground that Long Fai’s coaches are generally parked at its designated car park in Tin Shui Wai. According to P, Long Fai’s coaches may not be parked anywhere else without first obtaining permission. MAN is principally responsible to know the whereabouts of Long Fai’s coaches and she does not need to know and it is enough to obtain MAN’s permission to park somewhere else. At the material time, although she knew the Coach was not parked at Long Fai’s designated car park, she did not know where D had parked the Coach.\n90.\nMAN confirms that he had given permission to D to park the Coach in the vicinity of D’s residence. He, however, denies he had been informed where exactly D was parking the Coach. On 14\nth\nSeptember 2002, he spent half an hour driving around the vicinity of D’s residence but failed to locate the Coach. On the next day, he managed to find the Coach inside YYCP after another half-hour search. He confirms that YYCP is within walking distance from where D resided.\n91.\nIt is D’s testimony that he had obtained permission from MAN to park the Coach nearer his residence in order to save traveling time. He rented a car parking space at YYCP, which is within walking distance from his residence, and had been parking the Coach there. He has produced the receipts from YYCP evidencing the fact that he had been parking there (see Agreed Bundle at pp.275-276). He has informed MAN that he was parking the Coach at YYCP and MAN had even been to YYCP to inspect the location.\n92.\nBoth P and MAN deny knowledge that the Coach was parked at YYCP. They both testify that they were in fact not concerned where the Coach was parked. I find their laxity most surprising. First, it is inconsistent with the strict policy of Long Fai to have all coaches parked at the designated car park. Secondly, it is common ground that Long Fai kept a set of spare keys to the Coach in case the Coach was urgently required. What was the point in keeping the spare keys if no one in Long Fai (other than D) knew where the Coach was?\n93.\nOn the other hand, the fact that the Coach was eventually “found” inside YYCP is consistent with D’s case that he did not fail or refuse to inform P of the whereabouts of the Coach. First, D had been permitted to park the Coach in the vicinity of his residence and it is common ground that YYCP is within walking distance from D’s residence. Secondly, if he had wanted to keep P from knowing the whereabouts of the Coach, would he have parked it at YYCP – something that he had been permitted to do? Thirdly, D’s witness, YUEN, also says that MAN had made it his business to know the whereabouts of YUEN’s coach, which had also been permitted to park away from the designated car park. This tends to confirm D’s case that MAN should know the whereabouts of the Coach.\n94.\nIn her written closing submission, Ms. Wong criticizes D for referring to YYCP in 3 different ways. In fact, D might only have referred to YYCP by 2 names at most, namely, “榕苑停車場” (see answer no.8 of D’s cautioned statement at Agreed Bundle p.291) and “容記停車場” (see transcript at 12R at Agreed Bundle p.453). The remaining description, namely, “元朗大棠路榕苑士多對面停車場” was in fact used by a police officer (see Agreed Bundle p.321). In any event, I find the 2 names used by D reasonably close to each other.\n95.\nIn the premises, I do not accept that P did not know that the Coach was parked at YYCP at all material times.\n96.\nBased on the above finding of fact, there can be no question of D breaching the employment contract. D had been permitted to park the Coach in the vicinity of his residence and that was exactly what he did.\n97.\nThere cannot be a claim on conversion in those circumstances either. According to\nClerk & Lindsell on Torts\n,\n18\nth\nEdition (2000)\nat para.14-09:\n“... conversion is an act of deliberate dealing with a chattel in a manner inconsistent with another's right whereby that other is deprived of the use and possession of it. To be liable the defendant need not intend to question or deny the claimant's right; it is enough that his conduct is inconsistent with those rights.”\n98.\nThere is simply no evidence of any deliberate dealing with the Coach inconsistent with P’s right.\n99.\nGiven my above finding that the Plaintiff has not given any notice of termination on 6\nth\nSeptember 2002, any alleged requests and demands (whether by P personally or through LI) for the return of the Coach must be viewed with suspicion. In any event, LI’s testimony is that he demanded D on 14\nth\nSeptember 2002 to return the Coach by 2 pm on the same day. There is no evidence of P demandingfor the return of the Coach after the date of termination of the employment contract (i.e. after 14\nth\nSeptember 2002) as pleaded.\n(d) The 3 Covers\n100.\nTo recap, it is common ground that the 3 Covers were found missing from the Coach when MAN “found” the Coach on 15\nth\nSeptember 2002. It is P’s case that by removing the 3 Covers, D has breached the employment contract and/or committed the tort of conversion. D admits to have removed the 3 Covers.\n101.\nAccording to P, it is quite rare for the type of coach same as the Coach to be stolen. It would suffice if drivers simply lock up after work and Long Fai would not hold its drivers responsible for theft from or of the coaches assigned to them.\n102.\nMAN also gives similar evidence. At one stage, he claimed that Long Fai was not concerned that its coaches might be stolen because it had bought comprehensive insurance for all its coaches. However, upon further cross-examination, he retracted from this and alleges that it is only common sense that no one would be interested to steal a coach manufactured by Mitsubishi or Isuzu! It is noted that the make of the Coach is Mitsubishi. However, it is also his testimony that he felt it necessary to file a report with the police before actually recovering the Coach on 15\nth\nSeptember because he was afraid that he might be mistaken as a thief and got beaten up! If it were indeed common sense that no thief would be interested in the Coach, why did MAN hesitate in recovering the Coach on 15\nth\nSeptember before going to the police? After all, he did have the spare keys to the Coach, did he not?\n103.\nWhilst D admits that he removed the 3 Covers, he maintains that they were removed as a security measure to prevent the Coach from being stolen. In any event, he has returned the 3 Covers to P through the police since 16\nth\nSeptember 2002.\n104.\nThe question here is whether D’s assertion of removing the 3 Covers as a security measure can be accepted.\n105.\nMs. Wong has attempted to demonstrate in her examination of witnesses that the Coach without the 3 Covers might still be driven for a short while or distance and that was good enough for a thief. In my view, that is quite beside the point.\n106.\nAlthough P, MAN and LI all insist that they have not heard of removing the 3 Covers as a security measure before, it is clear from MAN’s evidence that he was unable to drive away the Coach in the evening of 15\nth\nSeptember and had to await someone to tow it away on the following day.\n107.\nIt is MAN’s evidence that he noticed a strange noise the moment he ignited the engine on 15\nth\nSeptember. He then noticed that the big cover inside the driver’s compartment which covered the engine had been displaced. When he opened the big cover, he noticed the 3 Covers missing. During re-examination, he explains that if he had tried to drive the Coach away without the 3 Covers, hot coolant and lubricant would burst out from the uncovered tanks and might cause injury to him at the driver seat. In addition, the engine would eventually overheat and burn without sufficient coolant and lubricant.\n108.\nIn my view, the effectiveness of D’s alleged means of securing the Coach has been confirmed by the testimony of MAN.\n109.\nD’s act must also be viewed in its proper context. It is common ground that the Coach was brand new when it was assigned to D and no anti-theft security measure was installed. Although it has been suggested that the more usual anti-theft measures adopted by other coach drivers would be by means of steering wheel lock or brake lock, none had been supplied to D.\n110.\nMs. Wong has criticized D in her written closing submission for only employing such security measure over the weekends but not on weekdays. D has explained that he would normally stayed across the border if he knew he had no order over the weekend. So he would remove the 3 Covers to secure the Coach over such longer period. I find D’s explanation reasonable.\n111.\nIn the circumstances, I accept D’s explanation and find that he had removed the 3 Covers as a security measure to prevent the Coach from being stolen.\n112.\nD’s act in securing the Coach is consistent with his obligation under the employment contract. All employees are deemed to have a discretion to act for the protection of the employer’s property (see Clerk and Lindsell on Torts, 18\nth\nEdition (2000), para.5-34). This is all the more so as it is remembered that P had not instructed her employees to seek permission before removing parts from their coaches. As such, there cannot be any breach of the employment contract.\n113.\nThere cannot be any conversion either as I have found what D did to be consistent with the right of P as owner of the Coach.\n(e) Item (8): $3,000 being additional wages paid to staff\n114.\nP has adduced 2 receipts to support P’s claim in this regard (at Agreed Bundle pp.596-597). However, the sum total of these 2 receipts, which is $3,755, does not support her claim of $3,000. P has apparently noted this inconsistency in court and volunteers to limit her claim to $3,000 only.\n115.\nBe that as it may, I am still not satisfied with the genuineness of these receipts. These 2 receipts have been purportedly issued to evidence payments to MAN and LI for their extra work on 15\nth\nand 16\nth\nSeptember. Both MAN and LI say they have already received payment and it is handwritten on each receipt the date of 30\nth\nSeptember 2002. If P has already paid them as early as 30\nth\nSeptember 2002 and such payments have all along been evidenced by these receipts, I find it strange that P would claim for $3,000 (but not $3,755) in her Statement of Claim dated 16\nth\nJune 2003.\n(f) Item (2): $470 being towing charges\n116.\nGiven my above finding that D was constructively dismissed by P, there is no basis for D to be responsible for any towing charges. In any event, the receipt produced by P (at Agreed Bundle p.593), which shows an amount of $400, does not tally with P’s claim of $470!\n(g) Item (3): $1,000 being change of lubricant with service fee\n117.\nP has not satisfied me that this item is anything other than for general maintenance of the Coach to which P as owner should be responsible.\n(h) Item (5): $1,100 being replacement for car parts with service fee\n118.\nP has failed to produce any documentary evidence to support this item of claim.\n119.\nP has not satisfied me as to the circumstances of incurring this $1,100. According to both P and MAN on the one hand, this sum of $1,100 is for the parts to replace the 3 Covers and was paid to the same garage which had changed the lubricant oil and serviced the Coach (i.e. 建新車房). P even claims that she has received a receipt from the garage but has since misplaced it. However, it is LI’s evidence on the other hand that he himself bought the 3 Covers from Mitsubishi service centre and paid for them. He passed the invoice to Long Fai and has been reimbursed.\n120.\nIn any event, MAN agrees that he has always knownthat the 3 Covers are being kept by the police and he could have obtained them from the police. I am not satisfied that it was necessary to get replacement for the 3 Covers.\n(i) Item (4): $6,000 being loss of hiring contracts\n121.\nThe basis of P’s claim here is that the Coach was under repair for 5 days. But for the repair, P would have received hiring charges in the sum of $6,000 from Avonwin (i.e. at $1,200 per day). P’s claim therefore is premised upon the fact that it has taken 5 days to repair the Coach.\n122.\nAccording to MAN, it required 5 days to repair the Coach because there was no available parts to replace the 3 Covers. This is contradicted by LI who says that he managed to purchase the lubricant cover and the water-coolant cover from Mitsubishi service centre for the Coach (although he cannot quite remember exactly when he did that). However, the small engine cover was out of stock and had to be ordered in from Japan which would take 6 weeks. In the meantime, the garage had used a wooden plank to act as a makeshift cover for the small engine cover and the Coach was useable.\n123.\nCurious enough, LI’s evidence is consistent with MAN’s witness statement filed herein (see paragraph 29 of MAN’s witness statement at Agreed Bundle p.109) which stated that:\n“Because the Coach was required to be repaired, it was left with the service company Kin Sang Garage for 1 day.”\n124.\nAll in all, I am not satisfied with this item of claim.\n(j) Item (6): $9,000 being loss of hiring contracts\n125.\nIt is P’s case that the Coach was hired to Avonwin at the material time. As the Coach was repaired for 5 days, Avonwin hired a replacement coach at $1,800 per day for 5 days. Hence, Long Fai paid $9,000 to Avonwin for this additional cost.\n126.\nTo start with, this item is also premised upon the taking of 5 days to repair the Coach and I have already found against P in this regard. Secondly, no invoice or receipt is produced to evidence this payment of $9,000 to Avonwin and the payment is not reflected in the accounting records of Avonwin either (see Agreed Bundle pp.561-567). Thirdly, given P’s case that Avonwin is paying P $1,200 a day for the hiring of the Coach, the extra cost incurred by Avonwin (if any) in hiring the replacement coach for 5 days could only have been $3,000 (i.e. ($1,800 – $1,200) x 5). MAN has failed to provide any explanation on this discrepancy under cross-examination. Instead, he merely insists on the claim for $9,000.\n(j) Item (7): $100,000 being damages paid to customers in respect of disruption of contracts\n127.\nThis is perhaps the single most important item in P’s claim by reason of the amount claimed.\n128.\nAccording to P and MAN, the non-availability of the Coach to run Avonwin’s orders has caused business loss to Avonwin. Eventually, P and Avonwin have agreed that P should pay $100,000 to Avonwin as compensation. This agreement, according to P’s case, has been reduced in writing (see Agreed Bundle p.595).\n129.\nTo start with, I find this alleged agreement highly suspicious in view of the intricate relationship between Long Fai and Avonwin. P says that she instructed MAN to negotiate with Avonwin and MAN says he negotiated with the other directors of Avonwin. However, MAN himself holds 98 % of the shareholding in Avonwin and the remainder is held by P. The other directors of Avonwin (i.e. other than P and MAN) do not have any beneficial interest in Avonwin! Secondly, the written agreement produced at trial is apparently unsigned!\n130.\nMost suspicious of all, it is P’s case that the basis of the agreement on the amount of compensation of $100,000 is 10 % of the turnover of Avonwin for the months of July, August and September 2002 totaling $1,000,000. P has even adduced the accounting records of Avonwin (at Agreed Bundle pp.561-567) purportedly to show that:\n(a)\nthe monthly turnover of Avonwin for the months of July, August and September 2002 is in the region of $300,000 odd; and\n(b)\nthere has been a significant drop in the turnover of Avonwin in the month of December 2002 to $254,400 (at Agreed Bundle p.564).\nP and MAN both testify that it took about 3 months for Avonwin’s loss due to the non-availability of the Coach in September 2002 to be reflected in the accounts.\n131.\nMr. Iu has been most meticulous in scrutinizing Avonwin’s accounting records. The result, which has been admitted by MAN in cross-examination, is that Avonwin has in fact made more profit in the month of December 2002 (at $4,400) than the months of July, August and September 2002 (averaging at about $4,000 per month)! So, what P is really claiming under this item is in fact about 25 times of the average monthly profit of Avonwin!\n132.\nAs the accounting record of Avonwin does not support P’s allegation that Avonwin has suffered a loss in business in December due to the non-availability of the Coach back in September, there is simply no basis to claim for any compensation!\n(k) Conclusion on P’s claim\n133.\nBy reason of the above, I am not satisfied that D has breached the employment contract or committed the tort of conversion. Even if I am wrong, I am not satisfied that P has discharged her burden in proving any of the items of loss and damages claimed.\nWhether D is entitled to his counterclaim in the sum of $23,677.70?\n134.\nI now turn to the counterclaim. D is counterclaiming against P for the following items (at Agreed Bundle p.35):\n(1)\nWages in lieu of notice\n$12,000.00\n(2)\nAnnual leave pay\n$2,209.30\n(3)\nEnd of year pay\n$9,468.40\nTOTAL\n23,677.70\n135.\nI have already noted above that:\n(a)\nD’s employment with P as a coach driver commenced on 3\nrd\nDecember 2001.\n(b)\nD was entitled to basic salary of $12,000 per month.\n(c)\nD was entitled to 7 days’ annual leave with pay every year.\n(d)\nEither P or D might give the other party one-month advance notice to terminate the employment agreement.\n(a) Item (1): $12,000 being wages in lieu of notice\n136.\nGiven my above finding that D has been constructively dismissed by P on 16\nth\nSeptember 2002, P should be entitled to wages in lieu of notice. This should be calculated on the basis of 1 month’s basic salary at $12,000.\n(b) Item (2): $2,209.30 being annual leave pay\n137.\nThere is no evidence that D has taken any annual leave between 3\nrd\nDecember 2001 (i.e. when he commenced working for P) and 16\nth\nSeptember 2002 (when D was constructively dismissed). It is common ground that D was entitled to 7 days’ annual leave with pay every year under the employment contract.\n138.\nD should therefore be entitled to $2,209.30 (i.e. $12,000 ¸ 30 x 7 x 288/365).\n(c) Item (3): $9,468.40 being end of year pay\n139.\nDespite the concession made by P at the beginning of the trial that D was still an employee of Long Fai up to September 2002, the parties are still in dispute as to whether D was entitled to any end of year payment under his employment agreement.\n140.\nIt is common ground that the employment contract was concluded between MAN and D during the interview conducted in November 2001.\n141.\nAccording to MAN, he did not offer any end of year payment as part of the employment package to D. He says that D could do nothing if Long Fai was unwilling to offer such benefit and D eventually accepted the situation (i.e. without entitlement to end of year payment) by reporting to work. It is also MAN’s evidence that Long Fai has only offered end of year payment to one employee, namely, LI because LI is a supervisor.\n142.\nTo start with, MAN’s testimony that Long Fai has only offered end of year payment to LI is contradicted by his own evidence in the Labour Tribunal. On 28\nth\nNovember 2002, MAN has apparently told the Tribunal that many employees of Long Fai have received such benefit before (see the transcript at 24K at Agreed Bundle p.171).\n143.\nMore significantly, MAN’s evidence that he did not offer end of year payment to D is contradicted by his own statement filed with the Labour Tribunal. In his statement to the Tribunal signed on 16\nth\nDecember 2002 (at Agreed Bundle pp.534-535), it is stated that D would be entitled to double pay upon completion of 12 months’ work. When he is confronted with his own statement during cross-examination, he agrees that he did tell D that D would be entitled to end of year payment.\n144.\nMAN tries to salvage the situation by then insisting that D’s entitlement to end of year payment should be conditional upon D completing a year’s service and that such payment should be calculated on the basis of basic salary of $4,500 per month. This last twist in MAN’s testimony is particularly amazing. First, that has never been P’s pleaded case. Secondly, P has clearly admitted on pleading that D’s monthly basic salary should be $12,000. MAN has failed to elaborate why D’s end of year payment should be calculated on the basis of $4,500 per month but not the monthly salary of $12,000.\n145.\nAlthough P was not present during the interview when the employment contract was concluded, her testimony may shred some light on this issue. After all, she is the sole-proprietress of Long Fai. According to P, all drivers of Long Fai employed on monthly basis should be entitled to end of year payment. She, however, maintains that D is not entitled to such payment because D was employed on “daily basis”! P has never alleged in her pleadings that P was employed on “daily basis”! That much is admitted by Ms. Wong.\n146.\nInsofar as D is concerned, he has consistently maintained that one of the terms of his employment agreement was that he was entitled to end of year payment. He, however, agrees during cross-examination that he would be paid oncompletion a year’s work.\n147.\nGiven the different versions advanced by MAN at different times and the inconsistency between his testimony and that of P, I find D’s case more believable.\n148.\nIt has been noted above that it is also D’s evidence that he is entitled to such payment upon completion of a year’s work. Would this affect his entitlement to end of year payment?\n149.\n“End of year payment” is governed by Part IIA of the\nEmployment Ordinance\n,\nCap.57\n(“the Ordinance”). Section 11B(1) of the Ordinance provides that:\n“Subject to any agreement to the contrary … [Part IIA of the Ordinance] shall apply to an employee employed under a\ncontinuous contract\nif an\nend of year payment\nis payable by the employer to that employee by virtue of a term or condition (whether written or oral, express or implied) of the contract of employment.” (my emphasis)\n150.\n“End of year payment” is defined in s.11A of the Ordinance as:\n“any annual payment (whether described as \"thirteenth month payment\", \"fourteenth month payment\", \"double pay\", \"end of year bonus\" or otherwise) or annual bonus of a contractual nature,\nbut does not include any annual payment or any annual bonus, or any proportion thereof, which is of a gratuitous nature or which is payable only at the discretion of the employer\n” (my emphasis)\n151.\nThere is no evidence in this case that the “end of year payment” to which D is entitled under his employment contract is of a gratuitous nature or which is payable only at the discretion of P. In any event, s.11AA(1) of the Ordinance presumed that an end of year payment is not of a gratuitous nature and is not payable only at the discretion of the employer unless there is a written term or condition in the contract of employment to the contrary. It is noted that D’s employment contract is entirely oral and there can be no question of any written term or condition to that effect.\n152.\nGiven P’s present pleadings, it is clear that D was employed under a continuous contract. So the conditions set out in s.11B(1) is satisfied and Part IIA of the Ordinance applies to D.\n153.\nBut what about D’s evidence that he would be paid his end of year payment upon completion of a year’s work?\n154.\nTo start with, although the parties might have agreed that D would be paid end of year payment upon completion of a year’s work, there is no term disentitling D from payment of a proportion of his end of year payment if he does not complete a year’s work.\n155.\nIn any event, s.11B(2) provides that:\n“In the case of an employee to whom this Part [i.e. Part II] applies, any term or condition of the contract of employment which purports to prevent the payment under section 11F of a proportion of the end of year payment shall be void.”\n156.\nSection 11F(1) in Part IIA of the Ordinance prescribes proportioning of end of year payment. It provides as follows:\n“\nSubject to subsections (1A) and (1B) [which are not applicable to this case], where, in the case of an employee to whom this Part [i.e. Part II] applies who has not been employed by the same employer for the whole of a payment period but has been so employed for a period of not less than 3 months in the payment period-\n(a)\nthe contract of employment is terminated-\n(i)\nat any time during the payment period; or\n(ii)\non the expiry of the payment period; or\n(b)\nthe employee continues to be employed by the employer after the expiry of the payment period,\nthe employee shall be paid a proportion, calculated in accordance with subsection (2), of the end of year payment that would have been payable under this Part if he had been employed by the same employer for the whole of the payment period.”\n157.\nSection 11F(2) of the Ordinance then provides the following calculation:\n“\nThe proportion of the end of year payment payable under subsection (1) shall be-\n(a)\nthe proportion specified in that behalf in the contract of employment; or\n(b)\nif a proportion is not so specified, the sum which bears the same proportion to a full month's wages of the employee as his period of service under the contract of employment in the payment period bears to that payment period.”\n158.\nIt is clear that D’s employment contract does not provide for payment of a proportion of the end of year payment. Section 11F(2)(b) is therefore applicable and D should be entitled to end of payment proportioned in accordance with s.11F(2).\n159.\nUnder Section 11F(2)(b), the end of payment to which D is entitled would be $9,468.40 (i.e. $12,000 x 288/365).\n(d) Conclusion on D’s counterclaim\n160.\nFor the above reasons, I am satisfied that D has proved his counterclaim in the sum of $23,677.70.\nWhether D’s employment contract is unenforceable by reason of illegality?\n161.\nAs a last ditch attempt to refute D’s counterclaim, P has alleged that D’s employment contract is contrary to public policy and unenforceable (see Re-Amended Reply and Defence to Counterclaim para.14 at Agreed Bundle p.621). P’s allegation is said to be based on D’s own pleading that as far as D knew the routes operated by Long Fai designated to D were illegal (see Defence and Counterclaim para.8(11) at Agreed Bundle pp.17).\n162.\nTo start with, there is a presumption of legality. According to Chitty on Contracts, 29\nth\nEdition (2004), para.16-193:\n“The party alleging the illegality of the contract bears the legal burden of proving this fact; therefore if the contract be reasonably susceptible of two meanings or two modes of performance, one legal and the other not the legal burden of proving its illegality is undischarged and that interpretation is to be put upon the contract which will support it and give it operation. If the contract on the face of it shows an illegal intention, an evidential burden lies upon the party supporting the contract to bring evidence reasonably capable of showing the legality of the intention.”\n163.\nThere is nothing illegal on the face of what I found to be the terms of the employment contract. So the burden is on P (as the party alleging illegality) to prove that fact. However, P has denied on pleadings that the routes are illegal (see Re-Amended Reply and Defence to Counterclaim para.6(9) at Agreed Bundle p.614). So the running of this most desperate allegation on the part of P is inconsistent with her pleaded case!\n164.\nBe that as it may, the evidence at trial in this regard is that:\n(a)\nAccording to MAN, Avonwin hired coaches with driver from Long Fai to run Avonwin’s routes. So, D had been assigned by Long Fai to ply routes designated by Avonwin. At all material times, Avonwin did not have the requisite licence from Transport Department to run those routes.\n(b)\nAccording to D, he was informed by the police that the routes that he plied for Long Fai were illegal.\n165.\nGiven MAN’s role in Avonwin, he would be in a position to know whether the routes ran by Avonwin and designated to D were illegal. However, MAN’s testimony at trial is contradicted by his evidence at the Labour Tribunal. On 28\nth\nNovember 2002, he has apparently told the Tribunal that those routes were legal (see transcript at 16F-K at Agreed Bundle p.367). I therefore find MAN’s testimony in court to be suspicious.\n166.\nThat leaves D’s testimony. However, D’s understanding was apparently based on what he learnt from the police. D was last interviewed by the police on 1\nst\nNovember 2002 (see Agreed Bundle p.321) and he has apparently complained to the Transport Department in November/December 2002 (see Agreed Bundle p.201). So the timing of D’s complaint supports D’s case that only learnt of such information from the police!\n167.\nIn the end, it is not at all clear whet the alleged illegality is. Which route(s) is/are alleged to be illegal? How is the running of such route illegal? What is/are the relevant legislative provision(s)? What is/are the contravention(s) alleged? All these are neither covered by evidence nor dealt with in P’s submission.\n168.\nAll in all, I am not satisfied with the evidence before me that the routes assigned to D by P were illegal.\n169.\nWhat P has tried very hard to say in this case is that the employment contract may be invalidated on the grounds of public policy so much so that D may not found his counterclaim on his employment contract. In this regard, Le Pichon JA in\nYip Alice v. Wong Shun (No.2)\n[2003] 2 HKC 528\nat 537 has observed that:\n“\nOne important element of public policy is that stated by Lord Wright in\nVita Food Poroducts Inc v. Unus Shipping Co Ltd\n[1939] AC 277\nat 293:\n‘\nNor must it be forgotten that the rule by which contracts not expressly forbidden by statute or declared to be void are in proper cases nullified for disobedience to a statute is a rule of public policy only, and public policy understood in a wider sense may at times be better served by refusing to nullify a bargain save on serious and sufficient grounds’”\n170.\nIn the present case, the only person who stands to reap a windfall from the allegation of illegality would be P. She would then be able to profit from running such “illegal” routes for Avonwin but, at the same time, avoid paying D under D’s employment contract. It is difficult to see how the general public may benefit from depriving D of his contractual rights against P under the employment contract!\nConclusion and Judgment\n171.\nBy reason of the above, I dismiss P’s claim and enter judgment in favour of D on the counterclaim. P is adjudged to pay D the sum of $23,677.70 with interest thereon at judgment rate from 4\nth\nNovember 2002 (i.e. the date when D filed his claim with the Labour Tribunal) until payment.\n172.\nLastly, I make an order nisi that P do pay D’s costs of defence and counterclaim including all reserved costs, to be taxed if not agreed. D’s own costs to be taxed in accordance with\nLegal Aid Regulations\n. Unless an application has been made to vary such order, such order shall become absolute 14 days after this written decision is handed down.\n( J. Ko )\nDeputy District Judge\nMiss Catherine K. K. Wong instructed by Messrs. Yeung & Tsang for Plaintiff.\nMr. Iu Ting Pong, Wallace of Messrs. A. M. Mui & Kwan, assigned by D.L.A., for Defendant.", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2003/DCCJ001586_2003.doc", + "file_name": "DCCJ001586_2003.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkdc/2009_HKDC_282/case.json b/en_cases_hkdc/2009_HKDC_282/case.json new file mode 100644 index 0000000..f132449 --- /dev/null +++ b/en_cases_hkdc/2009_HKDC_282/case.json @@ -0,0 +1,26 @@ +{ + "Date": "27 Nov, 2009", + "Action No.": "DCCJ4581/2008", + "Neutral Cit.": "[2009] HKDC 282", + "case_title": "SUPER POWER PROPERTIES LTD V. TANG HING CHEUNG", + "page_title": "SUPER POWER PROPERTIES LTD V. TANG HING CHEUNG | [2009] HKDC 282 | HKLII", + "case_history": [ + { + "name": "DCCJ4581/2008", + "link": "https://www.hklii.hk/en/appealhistory/DCCJ/2008/4581" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkdc/2009/282", + "neutral_cit": "[2009] HKDC 282", + "court_code": "HKDC", + "content": "DCCJ004581/2008 SUPER POWER PROPERTIES LTD v. TANG HING CHEUNG\nDCCJ4581/2008\nIN THE DISTRICT COURT OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCIVIL ACTION NO. 4581 OF 2008\n_________________________\nBETWEEN\nSUPER POWER PROPERTIES LIMITED\nPlaintiff\nand\nTANG HING CHEUNG\nDefendant\n_________________________\nBefore: Her Honour Judge Mimmie Chan in Chambers (open to public)\nDate of Hearing: 27 November 2009\nDate of Delivery of Decision: 27 November 2009\n_______________________\nD E C I S I O N\n_______________________\n1.\nIn this application to set aside the judgment entered in default on 10 February 2009, the issue is whether the Writ had been duly served on the Defendant on 17 October 2008, when the Plaintiff’s representatives inserted the Writ through the Defendant’s letterbox at Flat B, rear block, 14th Floor, Wai On Building, 1A Austin Road, Kowloon, at the last known residential address of the Defendant.\n2.\nThe Summons to set aside was issued on 9 July 2009, supported by an affirmation made by the Defendant on 8 July 2009. The Defendant claims that he had never received the Writ, nor the letter before action dated 15 August 2008, nor any of the court documents served by the Plaintiff. He claims that the first time he became aware of these proceedings was when he received the letter from the Food and Environmental Hygiene Department dated 3 March 2009, when he was informed that his wall stall abutting the Plaintiff’s property had to be vacated within 6 months as the Plaintiff had obtained a court order on 10 February 2009.\n3.\nI accept that the Defendant has to show a credible and convincing case that he had no notice of the issue and the service of the Writ. Service by insertion through the letterbox can be deemed good service but it is always open to the Defendant to show that he had not received the writ in fact. Whether or not there is sufficient evidence for the court to accept the credibility of the Defendant’s assertion that he had not received the Writ obviously depends on the facts of each and every case.\n4.\nHaving considered the evidence filed on behalf of both parties, I accept that there is a credible case that the Writ may not have been brought to the attention of the Defendant and may have been mis-delivered. From the Defendant’s evidence and the photographs exhibited as “THC-7” and “THC-5”, the two entrances to Wai On Building on Austin Road do appear very confusing and misleading. Importantly, so do the letterboxes which are in the lobby of the building identified as “Number 1”; “Number 1 rear block”; “Number 1A”, “Number 1B”, “Number 1B rear block”; and “Number 1C” of Austin Road. Looking objectively at the photographs of the letterboxes, it appears very difficult to make out which should be the correct letterbox for the address of the Defendant given as Flat B, rear block, 14th Floor, 1A Austin Road.\n5.\nThe Defendant having put forward, in my opinion, a credible case and despite the fact that the Plaintiff had filed evidence in reply to the Defendant’s affirmation, the Plaintiff’s representative had not identified which entrance to Wai On Building he took, and in which of the 6 letterboxes for the 14th Floor he had inserted the Writ, by way of confirmation or clarification, at least, that he had put the Writ in the Defendant’s correct letterbox.\n6.\nThe evidence relating to the service of the Summons for the hearing of the application for judgment and injunction is not, in my judgment, material. Even if it was true that the Summons had been left at the Defendant’s stall at Bowring Street, this cannot prove that the Defendant had received the Writ, nor can it accordingly throw doubt on the credibility of the Defendant’s assertion that the Writ had not been served on him. On the same basis, the allegation that the Defendant had telephoned the Plaintiff’s solicitors after the issue of the Summons for the hearing on 10 February 2009 cannot establish that the Defendant had duly received the Writ.\n7.\nI find, therefore, on the evidence that the only manner of service of the Writ relied upon by the Plaintiff, i.e. through insertion through the letterbox on 17 October 2008,is irregular.\n8.\nBeing bound by\nPo Kw\nong\nMarble Factory Limited\nv Wah Yee Decoration Co Ltd\n[1996] 4 HKC 157\n, the judgment on 10 February 2009 must be set aside without regard to the merits of the proposed Defence. I have seen nothing in the evidence which justifies my imposing any condition in the exercise of my residual discretion on the setting aside.\n9.\nI therefore set aside the Judgment entered on 10 February 2009, with costs to the Defendant. The costs include the reserved costs.\n(Mimmie Chan)\nDistrict Judge\nMr Kent Yee, instructed by Messrs Chu & Lau, for the Plaintiff\nMs Bethany M.Y. Chan, instructed by Rowdget W. Young & Co., for the Defendant", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2008/DCCJ004581_2008.doc", + "file_name": "DCCJ004581_2008.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkdc/2013_HKDC_1253/case.json b/en_cases_hkdc/2013_HKDC_1253/case.json new file mode 100644 index 0000000..4041da7 --- /dev/null +++ b/en_cases_hkdc/2013_HKDC_1253/case.json @@ -0,0 +1,26 @@ +{ + "Date": "13 Sep, 2013", + "Action No.": "DCCC727/2013", + "Neutral Cit.": "[2013] HKDC 1253", + "case_title": "HKSAR V. GAO HUACHANG AND OTHERS", + "page_title": "HKSAR V. GAO HUACHANG AND OTHERS | [2013] HKDC 1253 | HKLII", + "case_history": [ + { + "name": "DCCC727/2013", + "link": "https://www.hklii.hk/en/appealhistory/DCCC/2013/727" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkdc/2013/1253", + "neutral_cit": "[2013] HKDC 1253", + "court_code": "HKDC", + "content": "DCCC727/2013 HKSAR v. GAO HUACHANG AND OTHERS\nDCCC727/2013 HKSAR v. GAO HUACHANG AND OTHERS\nDCCC727/2013 HKSAR v. GAO HUACHANG AND OTHERS\nDCCC727/2013 HKSAR v. GAO HUACHANG AND OTHERS\nDCCC727/2013 HKSAR v. GAO HUACHANG AND OTHERS\nDCCC727/2013 HKSAR v. GAO HUACHANG AND OTHERS\nDCCC727/2013\nIN THE DISTRICT COURT OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCRIMINAL CASE NO.727 OF 2013\n--------------------\nHKSAR\nv.\nGAO Huachang\n(D1)\nGAO Shixin\n(D2)\nCAI Jingxiang\n(D3)\n--------------------\nBefore:\nDeputy District Judge A. Yim\nDate:\n13 September 2013\nPresent:\nMiss Sheroy Tam, SPP, of the Department of Justice, for HKSAR\nMr Kam Yee Wai Andrew, of Messrs. Kam & Fan, assigned by the Director of Legal Aid, for all Defendants\nOffences:\n(1)Theft (盜竊罪)\n(2)-(4) Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong (在香港非法入境後未得入境事務處處長授權而留在香港)\n---------------------\nReasons for Sentence\n---------------------\n1.\nThe defendants were jointly charged with theft, contrary to\nsection 9\nof the\nTheft Ordinance\n,\nCap.210\nand each was charged with one count of illegal remaining contrary to\nsection 38\n(1)(b) of the\nImmigration Ordinance\nCap.115\n.\n2.\nThe defendants pleaded guilty to their respective charges and admitted the facts, they are convicted accordingly.\nFacts\n3.\nAt about 1817 hours on 29 May 2013, whilst conducting anti-crime patrol along the hillside of Tsim Kong Tung near Yung Shue Au, Sha Tau Kok, the police spotted 5 males including D1 to D3 walking into the area. When the police approached the 5 males, they attempted to flee. Eventually, the police managed to intercept D1 to D3 whilst the other 2 males had escaped.\nCharge 1\n4.\nUpon search of the rucksacks carried by D1 to D3, the police had the following findings:\n(1) Inside D1’s black rucksack were items including:\na)one chopper about 32 cm long;\nb)one bending chisel/sickle about 17 cm long;\nc)one hoe with 2 mental blades/fixers;\nd)one green coloured bag containing one canvas; and\ne)wood chips of incense tree weighed 9.7kg.\n(2) Inside D2’s black rucksack were items including:\na)one whetstone about 17 cm long;\nb)one chisel/plow about 30 cm long;and\nc)wood chips of incense tree weighed 10.4kg.\nAlso, in the orange coloured bag of D2 further wood block of incense tree weighed 6.3kg was found.\n(3) Inside D3’s green rucksack were items including:\na)one chopper about 32 cm long;\nb)one whetstone about 19 cm long;\nc)one chisel/plow about 30 cm long; and\nd)wood chips of incense tree weighed 8.8kg.\n5.\nFurther, in the green rucksack left behind by one of the escaped male, the police found:\na)two whetstones about 12 cm and 18 cm long respectively;\nb)one chisel/plow about 30 cm long; and\nc)wood chips of incense tree weighed 9.6kg.\nCharge 2 to 4\n6.\nEach of the defendants entered Hong Kong unlawfully and remaining in Hong Kong without the authority of the Director of Immigration between 27 May 2013 and 29 May 2013.\n7.\nUpon examination, it is confirmed that all the wooden chips/blocks seized were Aquilaria sinensis (commonly known as Incense Tree), and they were recently cut from the tree trunks of Aquilaria sinensis if not the branches. The value of the woods blocks/chips of Incense Tree estimated to be $3,863,000.\n8.\nThe tools found were tools suitable or tailor-made for harvesting Incense Tree or fit for tool sharpening.\n9.\nThe prosecution case is that the defendants shortly after they illegally entered Hong Kong, together with other persons unknown, stole the Incense Tree by cutting and the total Incense Tree involved being 44.8kg in weight.\n10.\nThe populations of Aquilaria sinensis have reportedly been over-exploited or depleted in Hong Kong. The illegal harvesting or unsustainable felling of species has caused irreplaceable damages to the general natural feature and ecology of the natural forests of Hong Kong.\nMitigation\n11.\nD1 aged 36, married with a son and 3 daughters aged from 17 to 10. He is a Mainland resident and a farmer in home village. He has a clear record.\n12.\nD2 aged 20, single living with his parents and siblings. He is a Mainland resident and a farmer in home village. He received education up to Form 2, he has a clear record.\n13.\nD3 aged 59, married with a son and a daughter aged 26 and 23 respectively. He is a Mainland resident and a farmer in home village. He has 1 previous conviction record for going equipped for stealing in 2004 of which he was sentenced for 4 weeks, this conviction is 9 years ago, I will treat him as of clear record.\n14.\nThe defendants all from the same village, they came to Hong Kong with 2 other clansmen to steal the Incense Tree by cutting for profit to support their respective families, they thought the value of the woods in question would be about ¥20,000, they were not aware the value of the woods would be over $3.8 mils. Each of the defendants submitted a mitigation letter to court to show their remorse.\n15.\nThe defence rely on the sentencing principle and reasoning in\nHKSAR v Xie Jinbin CACC 195/2010,\nand urged me to adopt the same starting point despite the quantity of Incense Trees involved is much more than that in the present case and that the defendant entered into Hong Kong illegally. The defence submitted that the quantity found on the defendant is a matter of chance, what the law seeks to achieve is protection of our endangered flora, thus the quantity should not be the primary consideration. Further the defence urged the court to take into account of the totality principle and have the sentence of illegal remaining partly concurrent with the theft charge.\nSentencing\n16.\nIn\nHKSAR v Wen Zelang CACC 220/2006\n, the appellant together with three other defendants entered Hong Kong on 19 March 2006 as visitor. They came with woodchoppers for the purpose of finding incense trees so that the wood they cut from such trees could be sold in the Mainland. On 24 March, they were discovered to be carrying wooden blocks weighing 5.6 kg., which had been cut from a large and mature incense tree on 20 March. The sentencing judge adopted a starting point of 3 years’ imprisonment for all of them, allowing all the usual 1/3 discount for their pleas, and then, upon the prosecution’s application, enhanced the sentence by 25% under\nsection 27\nof the\nOrganized and Serious Crimes Ordinance\n,\nCap.455\nby reason of the prevalence of the offence to bring the sentence to 30 months’ imprisonment. The court of Appeal stated that\n“ …. the judge was right to have taken a serious view of the offence when the defendants had expressly come to Hong Kong for the purpose of cutting endangered trees for profit.\nA clear and strong message is needed to deter Mainland people from coming to Hong Kong to cut endangered trees, be they Buddist Pines or incense trees. In our view, neither the three-year starting point nor the 25% enhancement for prevalence of the offence under OSCO is manifestly excessive.”\nThe sentence of the appellant in that case was reduced because of his special circumstance being 17 years at time of offence and one of the defendant is his paternal uncle, who had assumed a de facto parental role towards the appellant from a time when he was very young and the court was entitled to assume the uncle may have exercised considerable influence over the appellant when the appellant decided to embark upon this criminal enterprise.\n17.\nIn\nHKSAR v Xie Jinbin CACC 195/2010\n, on 29 March 2010 the appellant together with 3 other males was found cutting tree and packing the blocks into their rucksacks at a hillside. When the police approached, all of them fled. Later the appellant and other 2 were intercepted and arrested; tools and blocks of incense tree were found on all three. The total of all blocks of incense tree was 1.181 kg. All the three entered Hong Kong on 27 March 2010 with two way permits and were granted leave to stay for 7 days. The conservation officer who examined the wood opined that illegal exploitations of incense tree would threaten the natural survival of the native plant. The sentencing judge after considering HKSAR v Wen Zelang adopted a starting point of 3 years, reduced to 2 years on account of the guilty plea, then enhanced the sentence by 25% upon the application of the prosecution pursuant to section 27(2) of OSCO. Though only 1.181 kg of wood was found, the sentence was approved by the court of appeal. The court of appeal dismissing the appeal stated that:\n“While the quantity of stolen goods in a case of theft is usually an important factor in determining the appropriate sentence, it is not necessarily the only and determinative factor. … where the stolen property involved is a protected endangered species, the considerations are wholly different. The end which the law seeks to achieve is protection of our endangered flora. Thus, the evil which the law seeks to prevent is not theft as such but injury to the protected flora.\n:\n:\n… The Applicant is not to be punished only according to the weight of the wood block he has stolen, but according to the enterprise he and the other three offenders had collectively participated in and the seriousness of the offence. The Applicant and three others come to Hong Kong in a joint enterprise with the intention to exploit our endangered flora for profit. They equipped themselves with a knife, hoe and saw. They acted as a group. The offence was clearly premeditated. The four of them were seen cutting the tree and packing the blocks into their rucksacks, though only three of them were arrested. The offence is one which calls for deterrence.”\n18.\nIn the present case, the defendants together with the other 2 escaped males equipped themselves with tools suitable or tailor-made for harvesting Incense Tree. They came to Hong Kong in a joint enterprise with the intention to exploit our endangered flora for profit. The offence was clearly premeditated. The total quantity involved is 44.8kg, which is exactly 8 times of that found in the case of\nWen Zelang.\nAlthoughthe end which the law seeks to achieve is protection of our endangered flora, where the quantity involved is significant, proper consideration should be given to that. I consider the appropriate starting point for the theft charge to be 3.5 years’ imprisonment.\n19.\nThe defendants entitled to 1/3 discount for their pleas respectively, the sentence is thus reduced to 28 months. For D2 he is the youngest one, he was born on 15 July 1993, and was 19 at time of the offence, all the defendants come from the same village, I am entitle to assume the defendants may have exercised considerable influence over the D2, taking all these into account, I consider it is appropriate to reduce his sentence on the theft charge by 4 months down to 24 months. For the other 2 defendants I do not consider there is any mitigating factor that called for further deduction.\n20.\nThe prosecution applies for enhancement of sentence of the theft charge pursuant to\nsection 27\n(2) of the\nOrganized and Serious Crimes Ordinance\n,\nCap.455\non the ground that the nature and extent of any harm, whether direct or indirect, caused to the community by recent occurrence of this specified offence. The notice of the application was duly served to the defendants.\n21.\nIn support of the application, the prosecution submits the statement of Mr Pang Kuen-shum, the conservation officer of the Agriculture Fisheries and Conservation Department dated 8 September 2013. The defence did not object to the application and did not take issue of the content of the statement, and conceded the prosecution has made out her ground.\n22.\nMr Pang stated that from the point of view of flora conservation in Hong Kong, as those populations in other parts of China are reportedly over-exploited and depleted, the local populations of Aquilaria sinensis represent likely some of the remaining healthy populations in China. The plant communities to which local populations of Aquilaria sinensis belong (lowland broadleaved forests and fung shui woods) have been well-preserved by both former villagers and local legislations, and are considered of conservation value. Most illegal exploitations of the species involve the use of unsustainable method of harvesting, which caused undesirable impact to the survival of Aquilaria sinensis, particularly the larger individuals. And he is of the view that the illegal exploitations would threaten the natural survival of the native plant Aquilaria sinensis.\n23.\nAfter consideration, I am satisfied beyond reasonable doubt that the ground for enhancement is made out.\n24.\nTaking into account of all the circumstances, I considered that the sentence should be enhanced by 25%. Consequently, the sentence on the theft charge becomes 35 months for D1 and D3 and 30 months for D2.\n25.\nFor illegal remaining in Hong Kong, I refer to the tariff in\nSo Man-king [1989]\n1 HKLR 142\n, and I consider that nothing in their mitigation called for departure from the tariff. Upon their own plea they are sentenced to 15 months’ imprisonment for their respective illegal remaining charge.\n26.\nThe theft and the illegal remaining charges were separate offences, and part of the sentences should be served consecutively. Having considered the totality principle, I order 3 months of the sentence imposed on the illegal remaining charge to be served consecutively with that of the first charge, making a total sentence of 38 months’ imprisonment in case of D1 and D3 and 33 months’ imprisonment in case of D2.\nOrder\nD1\nCharge 1 sentenced to 35 months imprisonment;\nCharge 2 sentenced to 15 months imprisonment, 3 months of which be served consecutively with charge 1;\nmaking a total of 38 months imprisonment.\nD2\nCharge 1 sentenced to 30 months imprisonment;\nCharge 3 sentenced to 15 months imprisonment, 3 months of which be served consecutively with charge 1;\nmaking a total of 33 months imprisonment.\nD3\nCharge 1 sentenced to 35 months imprisonment;\nCharge 4 sentenced to 15 months imprisonment, 3 months of which be served consecutively with charge 1;\nmaking a total of 38 months imprisonment.\nA. Yim\nDeputy District Judge", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2013/DCCC000727_2013.doc", + "file_name": "DCCC000727_2013.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkdc/2019_HKDC_677/case.json b/en_cases_hkdc/2019_HKDC_677/case.json new file mode 100644 index 0000000..7ff8c89 --- /dev/null +++ b/en_cases_hkdc/2019_HKDC_677/case.json @@ -0,0 +1,26 @@ +{ + "Date": "28 Jun, 2019", + "Action No.": "DCCJ1922/2016", + "Neutral Cit.": "[2019] HKDC 677", + "case_title": "LI KUEN KWAI JAY AND ANOTHER V. LOK CHUN CHEONG AND ANOTHER", + "page_title": "LI KUEN KWAI JAY AND ANOTHER V. LOK CHUN CHEONG AND ANOTHER | [2019] HKDC 677 | HKLII", + "case_history": [ + { + "name": "DCCJ1922/2016", + "link": "https://www.hklii.hk/en/appealhistory/DCCJ/2016/1922" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkdc/2019/677", + "neutral_cit": "[2019] HKDC 677", + "court_code": "HKDC", + "content": "DCCJ1922/2016 LI KUEN KWAI JAY AND ANOTHER v. LOK CHUN CHEONG AND ANOTHER\nDCCJ 1922/2016\n[2019] HKDC 677\nIN THE DISTRICT COURT OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCIVIL ACTION NO 1922 OF 2016\n--------------------\nBETWEEN\nLI KUEN KWAI JAY and\nLEUNG WING TUNG LILIAN\nPlaintiffs\nand\nLOK CHUN CHEONG\n1\nst\nDefendant\nCHUNG KIT CHU\n2\nnd\nDefendant\n--------------------\nBefore: Deputy District Judge Barbara Wong in Court\nDate of Hearing: 18, 19, 20, 21 March 2019 and 4 April 2019\nDate of Judgment: 28 June 2019\n--------------------\nJUDGMENT\n--------------------\nA. BACKGROUND\n1.\nThis case is about an unfortunate affliction not infrequently visited upon multistoried buildings in Hong Kong. Our multistoried buildings are usually in multiple ownership and occupancy. They share common walls, ceiling slabs and external walls. Water and waste disposal piping from each unit is connected to common piping throughout the building. As each year of habitation takes its inevitable toll on the building, it is only natural that all kinds of structural problems would occur as the building ages. One such problem is water seepage. This is one such case.\n2.\nThe building in question is one of the residential buildings in the South Horizon Development in Apleichau, Island South of Hong Kong. This development was built in the early 1990s. It is now close to 30 years old. It is not surprising, therefore, that water leaking from ageing pipes and continued use would have eroded protective layers, leading to water seepages. But because there is so much that is commonly shared and uses are so varied in multi-storied buildings, it is rare that there is a ready answer to the question as to where water seepages originate.\n3.\nSeepage in a multi-storied building is usually dealt with between the occupant/owner of the apartment suspected to be the source and the occupant/owner of the apartment suffering from the seepage, with the assistance of building management. Most Deeds of Mutual Covenant in multistoried buildings, as in this case, would require individual owners to keep their units in good order so as not to cause loss, damage or nuisance to other owners. If this co-operative effort fails to resolve the problem, the Joint Office (“the Joint Office”) set up by the Government comprising the Buildings Department (“BD”) and the Food and Environmental Hygiene Department (“FEHD”) is called in.\nSection 127\nof the\nPublic Health and Municipal Services Ordinance\n,\nCap 132\n, empowers the FEHD to issue a Nuisance Notice to the owner/occupier of a flat suspected of water leakage to take steps to stop the leakage\n(“Nuisance\nNotice”). If the Nuisance Notice is not complied with, the FEHD may apply to court for a summary Nuisance Order, ordering compliance with the steps stipulated in the Nuisance Notice but this only occurs if the FEHD makes a positive finding of water leakage or seepage from the suspect premises. If the previous steps fail to resolve the problem, a dis-satisfied occupant is often left with little option but to take a step of last resort – litigation in our courts. The events in this case essentially followed this same trajectory.\n4.\nThe plaintiffs in this Action are the joint owners and occupants of Flat 5E on the 5\nth\nFloor of Tower 11, Yee Fung Court, in South Horizons (“5E”). The 2\nnd\nplaintiff Leung Wing Tung, Lilian (“Leung”), who gave evidence for the plaintiffs, said they purchased 5E on 5 November 2009 and then soon started renovation of these premises. Leung testified that the plaintiffs moved into 5E around January 2010.\nShe said\nthat sometime in 2010, she noticed water seepage\n[1]\ncoming from the flat above (6E), affecting 5E’s (i) ceiling of Guest Bathroom,\n(ii) ceiling of\nMaster Bathroom, and (iii) ceiling of her corridor & the partition wall, but she did nothing about it until about February 2012, when she made a formal complaint to the Management Office.\n5.\nThe 1\nst\ndefendant (“Lok”), in giving evidence for the defence, stated that the initial complaint related only to the Guest Bathroom and corridor outside the Guest Bathroom (which was described as “internal corridor” in defendant’s case or submissions) of 5E and the complaints in relation to the Master\nBathroom\nof 5E did not emerge until 2017 when the plaintiffs’ solicitors wrote to him about concrete spalling falling from the roof of the Master Bathroom.\n6.\nThe Management Office issued a letter to the defendants dated 7 May 2012\n(“Management Company’s 1\nst\nLetter”)\ninforming the defendants that a complaint of water seepage into Flat 5E had been received and requested inspection of 6E as well as remedial measures. The Management Office then conducted inspections and tests of both premises in May 2012 in the presence of the owners of 6E and 5E (“Joint Inspection”)\n[2]\nand by letter dated 17 August 2012 (“Management Company’s 2\nnd\nLetter”), which letter did not mention the results of the inspections and tests carried out by the Management Company, requested the owners of 6E (the defendants) to take remedial steps.\n7.\nAccording to the defendants, the Management Company had carried out many inspections and tests including water ponding tests (with a dye) (technically known as the “Fluorescent Dye Test” or “FDT”)\n[3]\nwhich were conducted between May and October 2012, but they did not produce any evidence of seepage from 6E to 5E. Lok under cross examination said the Management Office verbally told him that the Management Office observed no color patches (which would indicate a positive result of the ponding tests) on the ceilings of the Guest Bathroom and internal corridor of 5E. Nevertheless, according to Lok, the plaintiffs kept lodging water seepage complaints.\n8.\nIt is not in dispute between the parties that back in early 2012, the defendants, after receiving complaints from the plaintiffs, did at their own (defendants’) expense conduct the following initial repairs (“2012 Ps’ Premises Repair Works”) to the Guest\nBathroom\nand the internal corridor in 5E:-\n(i) In relation to the walls of the internal corridor:-\n(a) Removing the existing layer of plaster on the walls;\n(b) Re-plastering and skim coating the walls; and\n(c) Repainting the walls\n(ii) In relation to the walls of the ceiling of the Guest Bathroom:-\n(a) Removing the existing layer of plaster on the ceiling;\n(b) Carrying out chemical grout injection to the ceiling; and\n(c) Re-plastering and skim coating the ceiling.\n9.\nThe 2012 Ps’ Premises Repair Works did not, however, satisfy the plaintiffs, and so, the Joint Inspection was conducted in May 2012. There were further complaints from the plaintiffs and the letter of 17 August 2012 from the Management Office (“Management Company’s 2\nnd\nLetter”) was issued requesting remedial action. This letter made, inter alia, the following statement:-\n“於八月十三日，我們再次到訪五樓E座單位進行視察，發現走廊天花及牆身仍然出現滲漏情況，故懷疑 貴單位滲漏情況仍然持續.”\n10.\nBy this time, the Joint Office had been called in. On 5 July 2012, staff of the Joint Office visited 6E and 5E and carried out FDTs to the drainage inlets of the hand basins, toilets, floor drains and bath tubs of both bathrooms in 6E. In a report dated the same day, one Chow Suk Yee of the Joint Office reported that no colour stain was observed in the “affected areas” of 5E. On 2 August 2012, staff of the Joint Office visited 5E for a second time and reported that no colour stain was observed in the ceiling and walls of internal corridor and the ceiling of the Guest Bathroom\n[4]\n.\n11.\nIn December 2012, the defendants caused a second series of repairs (“\n2012 Ds’ Premises Repair Work”\n)\nto be undertaken on the Guest Bathroom in their own premises (6E) (which is directly above the Guest Bathroom of 5E). These repair works appeared to be quite extensive and designed to prevent water leakage, and\nconsisted of the following:-\n(i) Removing all the existing fixtures in the Guest Bathroom, including the hand basin, toilet and bath tub;\n(ii) Removing the original tiles and screeding on the floor and the walls;\n(iii) Replacing the original supply and drainage pipes, which were galvanised iron pipes, with copper pipes (which are more expensive, more durable and higher quality than galvanised iron pipes);\n(iv) Laying cementitious waterproofing coating on the floor and the walls up to the underside of the ceiling;\n(v) Laying E-mix waterproofing screed layer on the floor and the walls, on top of the cementitious waterproofing layer;\n(vi) Laying new tiles on the floor, on top of the E-mix waterproofing screed layer;\n(vii) Filling the gaps between the floor tiles with mastic grout;\n(viii) Applying Dip Etanche transparent waterproofing layer on top of the new floor tiles and on the walls; and\n(ix) Installing new fixtures, including a new hand basin, a toilet and a shower\n12.\nThe 1\nst\ndefendant (Lok) asserted that he had ensured that the best materials and workmanship were deployed in such works.\n13.\nDespite the 2012 Ds’ Premises Repair Work, the plaintiffs remained dis-satisfied and continued to complain of water seepage.\n14.\nOn 26 February 2013, the FEHD issued a Nuisance Notice to the defendants directing that the floor platform (地台) of the Guest Bathroom in 6E be repaired to prevent any leakage. The FEHD was probably unaware at this time that the 2012 Ds’ Premises Repair Work had been completed.\n15.\nOn 16 April 2013, the FEHD visited 6E and observed that the defendants had refurbished the floor platform of the Guest Bathroom of 6E. On that same day, the FEHD staff also conducted an FDT at the Guest Bathroom of 6E and visited 5E the following day, observing no coloured dye. A further visit on 23 August 2013 by the FEHD observed no coloured dye at 5E\n[5]\n.\n16.\nThe FEHD further together with its nominated consultant visited 6E on 29 August 2013 to conduct confirmatory FDT, reporting negative results. The FEHD also thereafter on 19 September 2013 and 18 February 2014 conducted further FDT for potential seepage from 6E to 5E but did not by these tests find any evidence of seepage\n[6]\n.\n17.\nIn September 2013, a third round of repair works (“2013 Ps’ Premises Repair Works”)also at the defendants’ expense, was conducted in the\nGuest Bathroom\nand internal corridor of 5E, consisting of the following:-\n(i) In relation to the walls of internal corridor:-\n(a) Removing the existing layer of plaster on the walls;\n(b) Re-plastering and skim coating the walls; and\n(c) Repainting the walls.\n(ii) In relation to the walls of the ceiling of the Guest Bathroom:-\n(a) Removing the existing layer of plaster on the ceiling;\n(b) Carrying out chemical grouting injection to the ceiling; and\n(c) Re-plastering and skim coating the ceiling.\n18.\nThis 3\nrd\nround of repairs did not also satisfy the plaintiffs who kept on complaining about water leakage.\n19.\nThus, in about April 2014, the defendants also refurbished the Master Bathroom in 6E (“2014 Ds’ Premises Repair Works”), to prevent water leakage to the flat below, although up to this point in time, according to Lok (the 1\nst\ndefendant), who gave evidence, that there had been no complaint about water leakage from the Master Bathroom of 6E. The 2014 Ds’ Premises Repair Worksdone to the Master Bathroom in 5E, included the following:-\n(i) Removing the existing toilet and installing a new toilet which was designed in a way that any overflowing toilet water would flow back to the toilet bowl;\n(ii) Removing the existing hand basin, conducting drainage tests on the existing draining pipes of the hand basin, and installing a new hand basin together with a new floor cabinet;\n(iii) Conducting pressure tests on other existing pipes;\n(iv) Laying new cementitious waterproofing coating on the floor, on top of the existing floor tiles;\n(v) Laying new floor tiles, on top of new cementitious waterproofing coating;\n(vi) Filling the gaps between the new floor tiles with mastic grout; and\n(vii) Applying Dip Etanche transparent waterproofing to the new floor tiles, to the walls, to the junctions between the walls, and to the junctions between the walls and with the floor or the bathroom fixtures.\n20.\nThe plaintiffs in their evidence dubbed the aforesaid four rounds of repair works undertaken respectively on 5E and 6E by the defendants at the latter’s expense, collectively as “the Four Works”. While the plaintiffs did not dispute that the Four Works had been undertaken at the material times, they found the workmanship “ineffective” and the standard of workmanship “not good enough”. No elaboration was provided by the plaintiffs save their allegation that these works failed to stop the seepage in the affected areas in 5E.\n21.\nDespite the Four Works undertaken at 5E and 6E at the expense of the defendants, complaints from the plaintiffs continued into 2015, and joint visits by the 1\nst\ndefendant with the Management of South Horizons and the plaintiffs took place in November 2015 (“Joint Inspection”). The Joint Inspection also included the 1\nst\ndefendant’s colleague Mr Vincent Chan, who was a chartered surveyor and professional surveyor. The Joint Inspection covered the Guest Bathroom, Master Bathroom and internal corridor of 5E. The Joint Inspection “found that there were no water droplets and no damp patches on the ceilings”. Photos were taken during the Joint Inspection and were exhibited with the witness statement of Lok\n[7]\n.\n22.\nOn 26 April 2016, this Action was commenced by writ taken out from the District Court seeking an order against the defendants requiring them to rectify the water seepage emanating from 6E and restraining them from causing or permitting such seepage, and damages. By commencing this Action, it is probable that the plaintiffs had waited long enough for the Joint Office to take action. This Action is based on the defendants’ contractual duty in the Deed of Mutual Covenant to keep their premises in good repair in order to avoid loss or damage to other unit owners and their common law duty of care to the plaintiffs.\n23.\nThen, the Joint Office sent a letter dated 3 May 2016 to the owners of 5E and 6E informing them that since the non-destructive tests conducted by Joint Office and its nominated consultant could not ascertain the source of the seepage, the Joint Office would take no further action. The letter was in the following terms:-\n“業主 / 住戶：\n有關香港南區海怡半島11座5樓E室天花滲水事宜\n就上述滲水個案，本處曾於2013年2月26日根據《公眾衛生及市政條例》第127(1)條向閣下發出「妨擾事故通知」，規定在限期內完成所需的維修工程。\n本處職員於2013年4月17日及2013年8月23日到下層單位跟進調查，發現受影響的天花仍有滲水情況。本處人員亦於2013年4月16日到貴單位跟進調查，確定閣下已妥善維修客人浴室的地台。因此，本處職員聯同本處委派的合約顧問公司職員其後於2013年8月29日在貴單位的客人浴室的地台進行覆核測試，並於2013年9月19日及2014年2月18日再到下層單位作跟進調查，惟並未發現覆核測試所使用的色水於下層單位滲水位置出現。\n由於本處已進行既定的非破壞性測試仍無法確定滲水源頭，因此本處只好暫時停止跟進此個案。…”\n24.\nOn 3 October 2017 and 17 October 2017, the defendants’ Solicitors received two letters from the plaintiffs’ Solicitors complaining of falling spalling from the ceiling of the Master Bedroom in 5E (“SHC Letters”). This, according to the 1\nst\ndefendant (Lok), the SHC letters “were wrong to state that spalling occurred in the ‘master bedroom’. Photos attached to the SHC Letters were clearly taken in the master bathroom and they showed spalled pieces of concrete lying in a bathtub, and concrete missing from an area of a ceiling where pipes were installed.”\n[8]\nLok said this was the first time that a complaint of water leakage regarding the Master Bathroom and/or Master Bedroom in 5E was made.\nB. THE LEGAL PRINCIPLES\n25.\nThere is very little in dispute as to the relevant legal principles.\n26.\nIt is admitted that the defendants owe the plaintiffs a contractual duty of care under the Deed of Mutual Covenant in the following terms:-\n“Each Owner shall maintain his own unit in good repair and condition to the satisfaction of the Manager of the Estate and in such manner so as to avoid any loss, damage or nuisance or annoyance to other owners.”\n27.\nSection 34H\nof the\nBuilding Management Ordinance\n,\nCap 344\n, Laws of Hong Kong, also imposes a duty on the person having the right of exclusive possession in a multistoried building, to maintain the premises in his exclusive possession in good repair and condition.\n28.\nIt is also admitted that the defendants owe the plaintiffs a common law duty of care to avoid negligently damaging the property of the plaintiffs.\n29.\nThe question is whether there had been breach of either the contractual or the common law duty of care. In this respect, in relation to water seepage, both parties agree that the following principles shall apply:-\n(i) The doctrine of res ipsa loquitur does not apply, and the burden is on the plaintiff to prove, on a balance of probabilities, that the seepage originated from the defendants’ premises (6E).\n(ii) The defendants have\nno duty to identify the source of the leakage\n[9]\n.\n(iii) Where the water leakage remains a mystery at the end of the trial (ie where the plaintiffs fail to prove, on a balance of probabilities, that the source of the seepage originated from the defendant’s apartment), then the court should dismiss the action\n[10]\n.\n30.\nCounsel for both sides cited a few more cases in support of their submissions. I have considered all of these. To the extent necessary, I will refer to these cases in the discussion below.\nC. THE EVIDENCE\n31.\nMadam Leung Wing Tung Lilian (“Leung”) the 2\nnd\nplaintiff gave evidence at the trial, as did Mr Lok Chun Cheong (“Lok”), the 1\nst\ndefendant. In addition, the plaintiffs’ expert, Ms Lau Shan La (“Lau”) and the defendants’ expert, Mr Tsang Chun Wang (“Tsang”) gave evidence.\n32.\nI have re-read and carefully considered the evidence presented. As the evidence was presented over a period of 4 days, it would not be possible for me to enumerate all of this evidence. I hope the parties will understand that I could only expressly deal with such evidence as is crucial in helping me come to a decision.\nThe Expert Evidence\n33.\nThe focus of the cross-examination at the trial was on the experts. I will, therefore, first deal with the evidence of the Expert Witnesses.\n34.\nThe Expert Witness for the plaintiffs was Ms Lau Shan La (“Lau”), BSc (Engineering), Hong Kong Polytechnic University, Chartered Engineer (CEng), Registered Professional Engineer (RPE), TCP-T5\n[11]\n, AS(RGBC)\n[12]\n, AS(RSC)\n[13]\n, MHKIE\n[14]\n, MICE\n[15]\n, etc\n[16]\n. The plaintiffs Expert Report & Supplemental Expert Report made by Lau were all written in Chinese.\n35.\nThe Expert Witness for the defendants was Mr Tsang Chun Wang (“Tsang”), BSc (Hons) (Surveying), Hong Kong Polytechnic University, Registered Professional Surveyor, Member of the Hong Kong Institute of Surveyors (HKIS). The defendants’ Expert Report was done in English, but the Joint Survey Report by Lau and Tsang was written in Chinese.\n36.\nLau by herself produced the following reports:-\n(i) The plaintiffs’ 1\nst\nSurvey Report dated 15 August 2015\n[17]\n; and\n(ii) The plaintiffs’ 2\nnd\nSurvey Report dated 14 November 2017\n[18]\n.\n37.\nTsang by himself produced the Water Seepage Investigation Report dated 25 April 2018 (“defendants’ Expert Report”)\n[19]\n.\n38.\nThe two experts following the conduct of tests at both 6E and 5E on 28 May and 28 June 2018, produced a Joint Survey Report dated 30 August 2018 (“Joint Expert Report”)\n[20]\n. For the Joint Expert Report, the two experts conducted the following six tests (the first 5 of which were common):-\n(i) Visual Inspection (目測法);\n(ii) High Resolution Thermal Scanning / Infrared Scan\n(高清紅外線掃描法);\n(iii) Flow Meter Test (流量錶測試);\n(iv) Fluorescent Dye Test (“FDT”)\n(螢光色水（蓄水）測試);\n(v) Electrical Moisture Meter (“EMM”)\n(導電感應法); and\n(vi) Microwave Leakage Detection Test (“MLD”)\n(微波濕度掃描法).\n39.\nThe experts agreed on the suitability of the use of all the above tests, ie (i) Visual Inspection, (ii) High Resolution Thermal Scanning / Infrared Scan, (iii) Flow Meter Test, (iv) Fluorescent Dye Test and (v) Electrical Moisture Meter Test except the MLD. For reasons set out below in paragraphs 66-71, only the plaintiffs’ Expert, Lau, solely by herself, conducted the MLD, in addition to the 5 common tests.\n40.\nBoth experts purported to conduct their tests in accordance with the “Professional Guide to Water Seepage investigation, Diagnosis, Testing & Reporting in Residential Buildings” First Edition 2014 (“Professional Guide”), issued by the Building Surveying Division of the Hong Kong Institute of Surveyors, and acknowledged the authority of the Professional Guide in defining the utility and limitations of the tests they conducted.\nNegative results from Visual Inspection, Infrared Scan and Flow Meter Tests\n41.\nThe first three tests by the experts, namely visual inspection, infrared scan and flow meter test, showed the common result that there was an accumulation of moisture present in the Guest Bathroom and Master Bathroom and the wall along the corridor in 5E.\n42.\nVisual inspection of 5E indicated indeed that there was an accumulation of moisture in the ceilings of the Guest Bathroom and the Master Bathroom as well as the walls of the corridor outside of the Guest Bathroom. Infrared scans produced similar results. However, both experts agreed that these tests could only show that there was an accumulation of moisture and possible seepage from outside of 5E, but they cannot determine the source of such seepage.\n43.\nThe Flow Meter Tests were conducted to establish whether the fresh water supply pipes in 6E and 5E were leaking and therefore the potential source of leakage into 5E. However, these tests established that there was no leakage in the fresh water pipes in either 5E or 6E.\n44.\nThus, these tests cannot establish that the seepage came from 6E. The two experts were, therefore, left with the results of the FDT and EMM tests conducted by them and the MLD Test conducted by Lau, the plaintiffs’ Expert.\nNegative results from the FDT\n45.\nParagraph 4.2.1 and Appendix 7.3 and 7.4 of the Professional Guide give a detailed guide as to how the Fluorescent Dye Test (FDT) should be conducted. The relevant standard for such tests is stated to be ASTM D5957-98, 2005 –\nStandard Guide for Flood Testing Horizontal Waterproofing installations\n. This test is also sometimes known as the “Ponding Test”, as referred to by the 1\nst\ndefendant in evidence.\n46.\nDye mixed with water is placed in various places, bath tub, shower tray, water closet, floor drain and vertical grating in the suspected premises (6E Guest Bathroom and Master Bathroom) and a number of Check Points (“CPs”) in the seepage area (the Guest Bathroom Ceiling, and corridor walls outside Guest Bathroom and Master Bathroom in 5E). In this case, a total of 8 CPs in the seepage areas in 5E were chosen. The Professional Guide states that the appearance of colour dye in or around the seepage area should be a sign of seepage and allows one to trace its path from the test area. If colour dye is not observed anywhere in or around the seepage area within three weeks of the flood test (FDT), the test should be negative.\n47.\nThe FDT tests conducted by both experts during the two occasions of their joint visits to 5E and 6E on 8 checkpoints in 5E\n[21]\n. They all produced negative results. In other words, there was no evidence of any colored water coming from 6E seen from these tests.\n48.\nI was reminded by counsel for the defendants during final submissions, that during cross-examination, Lau (the plaintiffs’ Expert), confirmed that she does not dispute the reliability of FDT in the present case and also, apart from the FDT jointly done by the two experts in 2018, the other FDTs conducted on the following occasions between 2012 and 2018, which also produced negative results:-\n(i) The FDT conducted by the Management Office on 6 October 2012\n[22]\n;\n(ii) Tsang’s FDT reported in his 25 April 2018 Report\n[23]\n; and\n(iii) The Joint Office’s FDTs conducted on 5 July 2012 and 29 August 2013\n[24]\n.\n49.\nFaced with these negative results, Lau (the plaintiffs’ Expert) pointed to the observation in p 23 of the Professional Guide to the effect that the dye test is not always successful and a failure to record its presence in the damp zone cannot be taken as conclusive evidence against the suspected source. She suggests that the reason why there was no trace of dye on the checkpoints in 5E is as follows:-\n“….由於物業上層（即6樓E室）住戶的用水習慣及混凝土有機會將色水過濾而導致色水無法滲透到物業（即5樓E室）天花或牆身表面”\n[25]\n。\n50.\nTsang (the defendants’ Expert) in giving evidence, however, said that this was merely speculation because even if the dye is trapped between the concrete in the slabs between 6E and 5E, some dye could still be seen through the spalled concrete if there was seepage. The absence of any evidence of coloured dye meant that there had been no seepage. Counsel for the defendants reminded the court in final submissions that Lau presented no evidence that habit of use of water by either of the parties could affect the negative FDT results.\n51.\nLau also sought to counteract the negative FTD results by the results in two other tests, namely, EMM and MLD.\nThe EMM Test\n52.\nThe EMM is an Electrical Moisture Meter designed to detect moisture through the measurement of electrical resistance. The meter adopted by the Experts is a pin-type meter, which measures resistance and is referred to in the Professional Guide as an Electrical Resistance Meter. The meter comes with two pins that puncture the surface to a depth of 3 mm, and the amount of moisture present in the concrete is measured by the amount of electrical resistance between the two pins. The theory is that since electricity is better conducted by water, the more moisture there is in the area covered by the two pins, the less resistance there is to the passage of the electrical current. The reading in the meter is in degrees of moisture.\n53.\nThe EMM test is conducted in tandem with the FDT as shown in Appendix 7.4 of the Professional Guide. It is the differences in readings before and after the FDT, which tends to show whether additional moisture had passed through the concrete slab and thus tend to show seepage from 6E to 5E.\n54.\nAppendix 7.4 of the Professional Guide suggests that Reference Points (“RPs”) should be set up around the CPs (Checkpoints in the seepage area) and EMM readings are made before the start of the FDT in the RPs as a baseline. EMM readings are then made at end of the FDT, for comparison purposes.\n55.\nThe Professional Guide points out that pin type EMMs were usually used for checking moisture content in wood and are usually calibrated for that purpose. It cautions that corrections are necessary for different materials and ambient temperatures need to be recorded to make calibrations easier and temperature compensations and adjustments should be made with reference to the calibrated temperature and any moisture content obtained can reflect moisture gradient and contour changes between readings.\n56.\nThe Professional Guide, while pointing to certain advantages, cautions against the pitfalls and limitations of the EMM:-\n(i) Potential Pitfalls during application\n• Some EMMs are calibrated for wood testing. Selection of the correct test mode is required.\n• Tests that involve conductive materials will give invalid results.\n• Readings may be affected by the density of materials, aggregate size, smoothness of the measuring surface, surrounding temperatures, surface contaminants, hand pressure on electrodes, and contact area between the electrode and the testing material.\n(ii) Limitations of Method\n• Pinholes are left on the surface of the test object (electrical resistance meter)\n• For materials other than timber, scaling and calibration may be required\n• Not suitable for measuring hard surfaces such as marble or fair-faced concrete\n• Surface should be dry and free from contaminants and salts\n• Generally measures of dampness near the surface. Certain models may be able to measure dampness in concrete to a depth of 20 mm, hence eliminating the possible influence of surface condensation.\n• Usage prohibited in electrical conductive materials\n57.\nThe 8 CPs chosen for the FTD were in the following seepage areas in 5E:-\n(i) Wall A (wall on the other side of the corridor to the Guest Bathroom);\n(ii) Wall B (wall on the side of the corridor of the Guest Bathroom);\n(iii) Ceiling of the Guest Bathroom;\n(iv) Ceiling of the Master Bathroom; and\n(v) Ceiling of the Corridor.\n58.\nThe 86 RPs for the EMM Tests were distributed around each of the 8 CPs in the 5 seepage areas in 5E.\n59.\nLau, the plaintiffs’ Expert, expressed her conclusions from this EMM test, as follows:-\n“根據度電感應法（針入式）結果顯示，可見原告人物業單位（即5樓E室）走廊牆身B，客廁天花及主廁天花部分測試點的濕度度數於被告人物業單位（即6樓E座）進行螢光水測試後有明顯上升\n[26]\n”。\n60.\nFrom this conclusion, she extrapolates to the further conclusion that the seepage had come from 6E upon the hypothesis that although the FTD had failed to identify 6E as the source of the seepage, the increase of moisture in the ceiling of the Guest Bathroom and the Master Bathroom in 5E detected by the EMM after the FDTs would indicate seepage from above.\n61.\nTsang, the defendants’ Expert, pointed out that the changes in readings observed by Lau in the RPs, recorded immediately before and after each FDT, were generally minor. Tsang suggests thatincreases of over 20 degrees of moisture on before and after FDT EMM measurements could only be regarded as significant, based on industry practice and his professional experience\n[27]\n. Although Lau disagreed with this suggestion by Tsang, she did not provide contradictory evidence\n[28]\n.\n62.\nTsang’s analysis of the EMM results were as follows:-\n(i) Wall A (wall on the other side of the corridor to the Guest Bathroom):\nOf the 18 RPs tested by EMM before and after FDT,\nnone\n(emphasis added) showed any significant increase in moisture content of the concrete slab\n[29]\n.\n(ii) Wall B (wall on the side of the corridor of the Guest Bathroom):\nOf the 30 RPs tested by EMM before and after FDT,\nonly 1\n(emphasis added) showed any significant increase in moisture content in the concrete slab\n[30]\n.\n(iii) Ceiling of the Guest Bathroom:\nOf the 20 RPs tested by EMM before and after FDT,\nonly 4\n(emphasis added) showed any significant increase in moisture content in the concrete slab\n[31]\n.\n(iv) Ceiling of the Master Bathroom:\nOf the 14 RPs tested by EMM before and after FDT,\nnone\n(emphasis added) showed any significant increase in moisture content in the concrete slab\n[32]\n.\n(v) Ceiling of the Corridor:\nOf the 4 RPs tested by EMM before and after FDT,\nnone\n(emphasis added) showed any significant increase in moisture content in the concrete slab\n[33]\n.\n63.\nIn relation to the small number of instances where significant increases in moisture were noted in relation Wall B in the corridor and the ceiling of the Guest Bathroom in 5E, Tsang suggested that these are discrepancies caused by erroneous insertion of the pins in the EMM\n[34]\n.\n64.\nTsang also referred to the rainfall data of the Hong Kong observatory during the times the EMM tests were conducted. During those times, there was little rainfall and yet the surface humidity in the corridor wall as well as the ceiling of the Guest Bathroom in 5E was high, with moisture readings exceeding 35 degrees in many cases and even to 99.9 degrees in some. Thus, the EMM data showing small variations in moisture readings have little value in pointing to 6E as the source of the seepage and only significant changes in moisture readings before and after FDT could be trusted. Accordingly, he does not think that the small number (6 out of 86) of increased moisture readings which could be regarded as significant, could be relied upon to show that there had been seepage from 6E\n[35]\n.\n65.\nIn cross examination, Lau accepted that discrepancies in EMM readings could be due to the following situations:-\n(i) Hand pressure differences in taking the readings at different times;\n(ii) Differences in ambient temperature at the different times when readings were taken;\n(iii) Differences in humidity at the different times readings were taken;\n(iv) Failure to take readings at the same point at different times when readings were taken.\nThe MLD Test\n66.\nMLD stands for Microwave Leakage Detection. The meter is used to evaluate “free” moisture content by measuring the dielectric constant (electricity storing capacity) of the material being tested.\n67.\nOnly Lau\n(the plaintiffs’ Expert)\nconducted this test. Her conclusions arising from this test is as follows:-\n“檢驗人員利用微波濕度掃瞄法，對物業（即5樓E室）客廁天花進行測試，檢驗人員利用三種不同深度的探頭，分別包括110 mm，70 mm及30 mm深度探頭進行測試。天花的測試的面積為1971mm x 1450mm，每個測試點距離約為493mm x 483 mm\n[36]\n.”\n“微波濕度掃瞄結果顯示，物業（及5樓E室）客廁天花的滲水水源頭位於天花上方（即6樓 E室）客廁抵台。水分由上滲入至物業（即5樓E室）客廁天花表面四周擴散\n[37]\n”\n68.\nTsang (the defendants’ Expert) points out that the concrete slab between 5E and 6E would have metal reinforcement bars and because of this presence MLD conducted at the ceiling of the Guest Bathroom could produce false readings. He refers to p 32 of the Professional Guide in the Joint Survey Report\n[38]\n. In addition, he had the following to say:-\n“微波濕度掃描法結果並不能作滲水源頭的參考指標，根據香港測量師學會所撰寫的（Professional guide to water seepage）當中第32頁（見下圖B5）說明，[“The presence of metals in the tested material (e.g. concrete reinforcement) can give false reading”\n[E/1049]\n] 根據樓宇結構，5樓E室的天花內必定含有兩層鋼筋，因此微波掃描的數據並不能於此案中作參考”\n[39]\n69.\nThe Professional Guide (p. 32) refers to the following pitfalls and limitations:-\nPotential Pitfalls\n• Errors may occur with certain ceramics.\n• The presence of metals in the tested material (eg concrete reinforcement) can give false readings.\n• Water near the surface of the test object will heavily affect the readings.\n• Can only be used to measure damp areas along a wall or on a floor\nLimitations of method\n• Attention should be paid to the interpretation of the readings when applied to elements that contain metal or ceramics.\n• Surface of the test object should be kept dry and flat.\n• Test surface must be open to the application of sensors.\n70.\nIn cross-examination, Lau accepted the caveats in the Professional Guide relating to the MLD. She also accepted that while the MLD readings showed different moisture content at various areas and different depths, they do not show the movement of the water, that is whether they come from above, horizontally or from below and therefore they cannot show that the source of the leakage comes from 6E.\n71.\nTsang in re-examination pointed out that there is only one water path shown in the 110 mm map/diagram for Wall B (which did not have reinforced metal bars) and that path is from the floor. As will be seen from the discussion on the factual evidence below, this observation is consistent with a layman’s test conducted by the 1\nst\ndefendant (Lok).\nThe factual evidence\n72.\nThere was much factual evidence given by Leung and Lok. Both factual witnesses were extensively cross-examined on matters which could not be said to be critical to the focal issue in this case, namely, whether the water seepage found in 5E originated from 6E. Therefore, I propose, in addition to the factual background narrative in paragraphs 1 to 23 above, only to give such treatment here to the factual evidence as might help to determine this focal issue.\n73.\nLok pointed out that he refurbished his flat (6E) soon after the plaintiffs purchased 5E in about November 2009 but before they moved into the unit. There were no complaints from the previous owners of 5E nor were there complaints before the plaintiffs moved into 5E but after they had bought the unit. It was only after the plaintiffs moved in, sometime in 2010, that the complaints of seepage began.\n74.\nLok said that\nthe plaintiffs\nwere persistent complainants and pointed out that in light of the frequent complaints by the plaintiffs, he had undertaken repairs at his own expense, despite there being no direct evidence that the seepage had come from 6E. the plaintiffs, however, pointed out that the repair works undertaken by Lok were insufficient to stem the seepage from 6E, but Lok countered by pointing out that he, being a person experienced in the building industry, would be careful to ensure that all repair works were performed to high standards.\n75.\nLok suggested that the seepage could have originated from the Guest Bathroom in 5E as he noticed that the shower in that bathroom was higher than the floor and it was possible that the seepage could have been the result of water flowing from this shower onto the floor and seeping into the floor slab of 5E. Lok referred to an experiment he conducted by placing a dry piece of tissue paper on the corridor wall and finding it soaked the next day, suggesting that this soaking was the result of capillary action from the floor.\n76.\nLok also referred to the false ceilings in the Guest Bathroom and the Master Bedroom Bathroom and that the accumulation of moisture on the ceiling inside these false ceilings could have been the result of showering with hot water in these bathrooms. Both experts acknowledged the plausibility of these suggestions that do not consider these suggestions to be conclusive.\n77.\nThere was some cross-examination of Lok as to the details for the monies he spent on the various repair works, presumably to establish some kind of baseline for the amount monies needed for repair works in the event the court finds that the seepage did come from 6E or to demonstrate the alleged parsimony of Lok by his scrimping on the Four Works.\nD. DETERMINATION\n78.\nI remind myself of the observations of Lam, J (as he then was) when a court has to choose between the versions of expert witnesses expressing different views to the court\n[40]\n. I also remind myself that expert witnesses could only help the court with their expert knowledge as would enable the court to make findings of fact. It is for the court, and the court alone, to make the findings of fact.\n79.\nI also remind myself that the burden of proof lies squarely on the shoulders of the plaintiffs to demonstrate, on a balance of probabilities, that the seepage found in 5E did originate from 6E.\n80.\nOf all the tests conducted by the experts, the one test, which consistently showed a negative result, stands out as the most convincing. This was the FDT conducted on two joint visits by the experts with 8 CPs with reference to the seepage areas set out in paragraph 56 above. There is also neither suggestion nor evidence that the proper protocols were not followed in these tests.\n81.\nThe FDT is a simple test. It is simply the placing of water mixed with coloured dye in places in the suspect premises (6E in our case) and observation of any trace of the same dye in the putative affected premises (5E) sometime afterwards, to allow the coloured water to seep through if indeed there was a path in the concrete slab between 6E and 5E allowing seepage. This test does not require other variables to be kept constant, and therefore is likely to produce fewer false positives. I note that no coloured dye was observed in 5E long after each of the tests conducted. Appendix 7.4 of the Professional 7.4.7 h states:-\n“h. If colour dye is not observed anywhere in or around the seepage area\nwithin three weeks of the flood test\n, the test should be negative”. (emphasis added)\n82.\nFDTs were also independently conducted by the Management Office and by the FEHD on at least three occasions. They all produced negative results. There is neither suggestion nor evidence that proper test protocols were not followed. These are parties with no interest in the affairs of the plaintiffs and the defendants. I note that such independent tests have been viewed by the High Court as good and weighty evidence\n[41]\n. I take the same view.\n83.\nIn addition, visual inspections and tests using infrared scans and flow meters undertaken by both experts also showed negative results. The flow meter tests showed no leakage to the fresh water pipes in 6E and 5E. Thus, seepage could not have come from leaking pipes. The experts differ as to whether the waste water pipes in the external walls of the Building could have been a contributory cause of the seepage. Lau said no but Tsang said he could not tell. Lau was obviously trying to eliminate a source of seepage, but this was not agreed to by Tsang. I cannot place any reliance on this and in any event, the burden still rests on the plaintiffs to prove that the seepage originated from the defendants’ premises.\n84.\nI take note of the fact that the defendants had made repairs on four occasions. Although the plaintiffs assert that these repairs did not stem the seepage, I must take note of the fact that the 1\nst\ndefendant is in the building industry and in face of a persistent complainant such as the 1\nst\nplaintiff, he would, more likely than not, ensure that the best materials and workmanship were deployed to avoid more complaints. In fact, the 1\nst\ndefendant said that he had embarked on those repairs despite there being no direct evidence of seepage from his apartment (6E). I have no hesitation in accepting the 1\nst\ndefendant’s evidence in this respect, as his reaction would have been the most rational in the circumstances. The repairs and refurbishments made by the defendants, dubbed the Four Works by the plaintiffs, given their quality and extent, appear to me to be consistent with and tend to explain why the many FDTs resulted in negative findings.\n85.\nThere is however a suggestion by Lau, the plaintiffs’ expert, that the negative results in the FDTs could not be relied on the basis that the Professional Guide suggested that negative FDT results cannot be taken as definite evidence against the suspected source\n[42]\n. But she did not refer the court to Appendix 7.4 h of the Professional Guide, which states that if there is no trace of coloured dye three weeks after the FDT, then the test should be negative.\n86.\nShe also suggested\n[43]\nthat habits in the use of water and the nature of the concrete slab could render it impossible for the dye to penetrate to the face of the ceiling wall in 5E. Tsang disagrees with this, as he stated that the dye may still find it possible to penetrate through concrete spallings. If indeed there was seepage from above and the water was trapped inside the concrete and then slowly seeps into 5E, one should see coloured dye traces sometime after the test, but none could be seen by either of the Experts, the FEHD or the Management Office, weeks after the FDT.\n87.\nLau also did not provide any evidence of water usage habits and did not demonstrate how such habits may produce negative results in FDTs. Lau under cross-examination agreed that she could offer no evidence as to water usage habits in 6E. Also, during cross-examination of Lau, it was put to her that “negative result of FDT could be evidence that water seepage may not be related to D’s unit in other words, if D’s unit was not the source of water seepage, there would not have color appeared?” Lau agreed but followed up with the phrase “可能唔係”. Lau further said that if there was a negative result from FDT, FEHD would say 未能確定源頭。\n88.\nLau also suggested that as her EMM readings showed that as the RPs in 5E after the FDTs showed a pattern of high moisture, that indicated seepage from 6E. She did not however dispute that the seepage areas in 5E were humid to start with, before the FDT and remained wet at the end of the FTD. Lau’s premise was that there was a pattern of high moisture in the seepage area in 5E, but that does not necessarily indicate whether the coloured dye in the FDT did seep from 6E to 5E.\n89.\nDuring cross-examination of Lau by D’s Counsel, Lau agreed that there was less than one hour difference before the FDT (which the Defence described it in cross examination as ponding test (蓄水測試)) and the EMM reading. Lau was asked whether the rise or fall in the reading is in fact unrelated to the ponding test, she disagreed. It was further put to Lau that Tsang was correct in his assertion that “業界提「明顯上升」，是指超過20度變化?” Lau disagreed and said “看有無一個pattern是明顯上升” (it depends whether there is a pattern for significant increase).\n90.\nTsang (the defendants’ Expert) pointed out that only significant differences of 20 degrees in moisture before and after an FDT are relevant to show seepage. Although Lau disagreed with Tsang that a distinct difference must be in the region of 20 degrees of difference in moisture, she could not point to any professional literature or other evidence, which counters that opinion. In the circumstances, I must accept Tsang’s evidence that only such significant increases of moisture before and after an FDT could indicate seepage from 6E to 5E.\n91.\nTsang pointed out only a few readings in the 86 RPs showed a rise in moisture which may be recognized as significant\n[44]\n.\n92.\nTsang attributes these readings to have been the possible result of erroneous insertions of the pins in the EMM. According to Tsang, the rise in moisture implied in Lau’s small number of EMM readings cannot be taken to be a reliable indication of seepage from 6E.\n93.\nI note that the preponderance of EMM readings showed only small changes in humidity readings in the 86 RPs in the seepage area in 5E, before and after the FDTs. The exception was in the 6 cases of changes of over 20 degrees of moisture shown in the before and after readings. 6 out of 86 cannot on any view be statistically significant. Such a small number would indicate that the readings were aberrant and could have been the result of errors in the usage of the EMM, as Tsang suggests and as shown in the Professional Guide.\n94.\nI also note that all of the 86 RPs were all humid to start with (ranging from 35 degrees in many cases and 99.9 degrees of moisture in some cases), and the only 6 readings with comparative values of over 20 degrees of moisture were in close proximity to RPs, which did not exhibit significant moisture differences. RP 3 and 23 in Wall B in 5E (with readings of over 20 degrees of difference in moisture) were in close proximity to RP 1 and 2, both of which showed very little change in moisture before and after the FDT. RP 10 and 11, 13, 17 in the ceiling of the Guest Bathroom in 5E (with readings of over 20 degrees of difference in moisture) were in close proximity respectively to RP 9 and 12 and RP 14 and 18, all of which showed very little change in moisture before and after the FDT. This evidence suggests that these 6 significant rises observed in the EMM readings would more likely than not be false positives.\n95.\nIn light of the foregoing analysis of the evidence, I have no hesitation in accepting Tsang’s analysis of Lau’s EMM results and find that they cannot be relied upon to overturn the multiple and clear negative FDT results obtained both by the Experts, the Management Office and FEHD in this case.\n96.\nLau, the plaintiffs’ Expert, further relies on her MLD tests but here again, the validity of the test is tainted by the presence of metal reinforcements in the concrete slab between 5E and 6E. More importantly, Tsang points out, and Lau agreed, that the tests merely showed the presence of water but not the direction of flow and therefore, they do not show that the water came from 6E.\n97.\nIn light of the foregoing analysis of the evidence, I have no hesitation in accepting Tsang’s evidence in preference to Lau’s. Lau’s refutation of the negative results in the many FDTs by her reference to water usage habits and the nature of the concrete and the results of her EMM and MLD tests remain unconvincing and cannot stand up to the negative results of many FDTs conducted by the two Experts and independent parties over the 6 years between 2012 and 2018. In coming to this conclusion, I also take note of the limitations of the EMM and MLD tests as set out in the Professional Guide.\n98.\nTherefore, I have no hesitation in finding that the plaintiffs have failed to demonstrate, on a balance of probabilities, that the seepage had come from 6E and therefore the case encapsulated in this Action cannot succeed.\n99.\nThe defendants’ suggestion that the seepage had originated from 5E itself must remain a matter for speculation. It is not the function of this court to find the source of the seepage. I will therefore make no finding on the defendants’ suggestion.\n100.\nThe only outcome from the foregoing is that the Action must be dismissed. The assessment of loss is therefore otiose in light of this outcome.\n101.\nI realize that this outcome must come as a disappointment to the plaintiffs. But it is trite law that the owner of the above unit has no duty to identify the source of the leakage. Thus, there is no obligation for the owner of a unit above to do any renovation work or repair work unless his unit was confirmed as the source of seepage, since repair / renovation work can only be effectively done when the source of seepage should be ascertained.\n102.\nI hope that the plaintiffs would take solace from the fact that in the present case, the defendants, owner of 6E above 5E, despite no source of seepage could be found by the independent parties, such as the Joint Office and the Management Office, did nevertheless undertake renovation works, 4 times at their own expense, trying obviously to solve the water seepage complaints raised by the plaintiffs over the years. The court realizes that the plaintiffs did not feel that the Four Works had the requisite quality but the court could only say that it was only logical and reasonable for the defendants to try to ensure the Four Works were duly carried out with good materials and a standard of workmanship designed to prevent annoyance to the plaintiffs in the face of persistent complaints from them.\nE. DISPOSITION\n103.\nIt is hereby ORDERED THAT THIS ACTION BE DISMISSED.\n104.\nAs I have not heard from the parties on costs, I make an Order Nisi that the plaintiffs shall pay the costs of this Action to the defendants, with Certificate for Counsel, to be taxed if not agreed at the District Court Scale. The plaintiffs may, if they wish, make any submissions that there should be some other order as to costs, and if that is their wish, they may do so in writing within 14 days hereof. If that were to take place, the defendants shall have 7 days thereafter to respond in writing, and the plaintiffs shall have another 7 days thereafter to make a final submission in writing. If no written submission is received within 14 days of this Order Nisi, the Order shall become absolute.\n105.\nThe parties are requested to submit for approval by this court, an agreed Draft Order within 14 days hereof. If no agreement can be reached, the parties may present their own version.\nF. NOTE OF THANKS TO COUNSEL\n106.\nLast but not least, it remains for me to thank counsel for both sides for their extensive submissions and their detailed exploration of the evidence in examination of the witnesses. The industry of counsel over a hearing lasting 5 days has lightened my burden considerably, and I am grateful to them.\n(Barbara Wong)\nDeputy District Judge\nMr Wilson Tam, instructed by Simon Ho & Co, for the plaintiffs\nMr Kaiser Leung & Mr Tommy Cheung, instructed by Bryan Cave Leighton Paisner, for the 1\nst\nand 2\nnd\ndefendants\n[1]\nUnder cross-examination, Leung said the water seepage was mild, her evidence was recorded as “… 2010 年，發現有輕微漏水”. Her witness statement (which is adopted as her evidence in chief), stated that subsequently the water seepage deteriorated: see paragraph 3 of her witness statement.\n[2]\nManagement Office 1st letter dated 7 May 2012 was sent to the Defendants regarding suspicion of water leakage from the Defendants’ premises to the Plaintiffs’ premises.\n[3]\nFluorescent Dye Tests (FDTs) are explained in paragraphs 45 and 46 below.\n[4]\nSee: Paragraph 58 (a) of the 1st Defendant’s Witness Statement of 30 May 2018.\n[5]\nSee: Paragraph 58(b) of the witness statement of Lok Chun Cheong (D1) dated 30 May 2018 which was admitted as evidence in chief.\n[6]\nSee: Paragraph 58 (c) of the witness statement of Lok Chun Cheong (D1) dated 30 May 2018 which was admitted as evidence in chief.\n[7]\nSee\nparagraphs 42-44\nof the witness statement of Lok Chun Cheong (D1) dated 30 May 2018 which was admitted as evidence in chief.\n[8]\nSee paragraphs 62-64 of the witness statement of Lok Chun Cheong (D1) dated 30 May 2018 which was admitted as evidence in chief.\n[9]\nHui Ling Ling v Sky Field Development Limited\nCACV 122/2012 unreported (22 March 2013),\nHui Ling Ling v Sky Field Development\nHCA 35/2007 (8 May 2012) unreported, and\n張秀玲及另一個人\nv\n鄭禮莊\nCACV 268/1998 （9 April 1999 unreported). Despite such legal principle, the Plaintiffs in their Closing Submissions said that “During 2010 to 2012, the Defendants had done no work to investigate, locate or repair the source of water leakage but nevertheless denied (that the leakage originated from 6E).” (see: paragraph 11 therein).\n[10]\nVast Team (Hong Kong) Limited v Hong Kong Marine Contractors Ltd\nDCCJ 5903/2008, (15 June 2011 unreported).\n[11]\n屋宇署適任技術人員 TCP-T5 職級\n[12]\n屋宇署註冊一般建築承建商獲授權簽署人\n[13]\n屋宇署註冊專門承建商獲授權簽署人\n[14]\n香港工程師學會會員\n[15]\n土木工程師學會會員\n[16]\n香港專業教育學院 樓宇診斷及檢驗專業證書、紅外線熱像樓宇診斷證書、英國特許仲裁師學會仲裁會員、法庭專家證人。\n[17]\nD/218-311. This report was prepared based on an inspection of 5E only.\n[18]\nD/313-337.\nThis report was also prepared based on an inspection of 5E only.\n[19]\nD/339-365. This report was prepared based on an inspection of both 5E & 6E.\n[20]\nD/366-729, prepared as a result of a joint visit by experts of both sides of 5E and 6E & without prejudice meeting on 9 August 2018 between experts for preparing a joint expert report, in accordance with Expert Directions of the Court dated 27 March 2018.\n[21]\nJoint Expert Report B11-B12, D/373, 380-381, 531-532, 550, and §32 of defendants’ closing submissions.\n[22]\nSee paragraph 11 of the witness statement of Lok Chun Cheong (D1) dated 30 May 2018 which was admitted as evidence in chief (B/52, paragraph 11 and C/118 – 119).\n[23]\nD/350, paragraph 3.1.\n[24]\nC181 – 182.\n[25]\nD/374, A6.\n[26]\nD/374, A4\n[27]\nJoint Expert Report B6 – B10/379-380\n[28]\nJoint\nExpert\nReport D/375 – 377.\n[29]\nJoint Expert Report D/384, B6.\n[30]\nJoint Expert Report D/384, B7. It may be noted that perusal of para 4/16 (D/537) would show two RPs (3, near ceiling and 23 near floor) with over 20 degrees of moisture increase.\n[31]\nJoint Expert Report D/384, B8, and D/537, para 4.17, the RPs are 10, 11 and 13,17 with over 20 degrees of moisture increase.\n[32]\nSee: Joint Expert Report D383-384, B9.\n[33]\nSee: Joint Expert Report D/383, B10.\n[34]\nSee: Joint Survey Report D/383, B7 and B8.\n[35]\nSee: B6 to B16, D/379 – 386.\n[36]\nD/545\n[37]\nD/547\n[38]\nSee: B13 of the Joint Report, D/382\n[39]\nJoint Expert Report §B13, D/381\n[40]\nChinachem Charitable Foundation Ltd v Chan Chun Chung\n, H\nCAP 8\n/2007 (unreported, 2 February 2010) at paragraph 483 – 491)\n[41]\nHui Ling Ling v Sky Field Development\nHCA 35/2007, 8 May 2012 (para 46, 58, Recorder Rimsky Yuen, SC).\n[42]\nParagraph 4.2.1 p 23 of the Professional Guide.\n[43]\n“用水習慣及混凝土有機會將色水過濾而導致色水無法滲透到物業（即5樓E室）天花或牆身表面”, paragraph 49 above.\n[44]\nSee: Paragraph 62 above. He pointed to five cases where the moisture difference was over 20 degrees in the Joint Survey Report but there was in fact another one in the ceiling of the Guest Bathroom, making a total of six.", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2016/DCCJ001922_2016.docx", + "file_name": "DCCJ001922_2016.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkdc/2021_HKDC_611/case.json b/en_cases_hkdc/2021_HKDC_611/case.json new file mode 100644 index 0000000..d512aa9 --- /dev/null +++ b/en_cases_hkdc/2021_HKDC_611/case.json @@ -0,0 +1,26 @@ +{ + "Date": "20 May, 2021", + "Action No.": "DCCC328/2020", + "Neutral Cit.": "[2021] HKDC 611", + "case_title": "HKSAR V. NG SHEUNG YEE", + "page_title": "HKSAR V. NG SHEUNG YEE | [2021] HKDC 611 | HKLII", + "case_history": [ + { + "name": "DCCC328/2020", + "link": "https://www.hklii.hk/en/appealhistory/DCCC/2020/328" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkdc/2021/611", + "neutral_cit": "[2021] HKDC 611", + "court_code": "HKDC", + "content": "DCCC328/2020 HKSAR v. NG SHEUNG YEE\nDCCC 328/2020\n[2021] HKDC 611\nIN THE DISTRICT COURT OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCRIMINAL CASE NO. 328 OF 2020\n________________________\nHKSAR\nv\nNG SHEUNG YEE\n________________________\nBefore:\nHH Judge Dufton\nDate:\n20 May 2021\nPresent:\nMr Phil Chau, counsel on fiat, for HKSAR\nMr Derek Chan SC leading Ms Jolie Chao and Ms Vanessa Ho instructed by Wong & Co, for the defendant\nOffence:\nCausing grievous bodily harm by dangerous driving\n(危險駕駛引致他人身體受嚴重傷害)\n________________________\nREASONS FOR SENTENCE\n________________________\n1.\nThe defendant pleads guilty to one charge of causing grievous bodily harm by dangerous driving, contrary to\nsection 36A\nof the\nRoad Traffic Ordinance\n[1]\n.\n2.\nOn the morning of 2 November 2019 the defendant, driving private car GH 9701, failed to comply with the red traffic light at a pedestrian crossing outside Savannah College of Art and Design on Tai Po Road and knocked down Mr Tam who was crossing the road when the pedestrian light was green.\n3.\nFull particulars of the offence are set out in the summary of facts admitted by the defendant on 20 April 2021.\n4.\nIn summary the section of Tai Po Road is a two-lane carriageway with a speed limit of 50km/h. At the material time the weather was fine, the lighting was good and the road surface was dry and in good repair. The traffic lights at the pedestrian crossing were functioning properly at the time.\n5.\nAt around 8:21 a.m. on 2 November 2019 Mr Chan, the driver of light goods vehicle SX 9182, was travelling in the left lane of Tai Po Road, southbound (“the first lane”). As Mr Chan approached the pedestrian crossing outside Savannah College of Art and Design the traffic lights for vehicles turned from green to amber. Mr Chan slowed down and stopped in front of the horizontal line at the traffic lights by which time the traffic lights had turned red.\n6.\nWhile waiting at the traffic lights Mr Chan noticed from his side mirrors private car GH 9701 travelling along the second lane at a speed of around 50km/h. Notwithstanding the traffic light was red GH 9701 did not reduce speed on approaching the pedestrian crossing.\n7.\nGH 9701 failed to comply with the red traffic light signal and hit Mr Tam who was crossing the road when the pedestrian light was green. Mr Tam was thrown into the air and landed on the first lane. GH 9701 came to a halt on the second lane. After the accident Mr Chan noticed that the traffic lights were still red against vehicular traffic\n[2]\n.\n8.\nThe police were called and very shortly afterwards police officers and an ambulance arrived. Mr Tam was taken to hospital having sustained a fracture of the right ankle.\n9.\nA breath test was conducted on the defendant which recorded a negative result for alcohol. Subsequent examination of GH 9701 revealed no mechanical defects.\nMitigation\n10.\nIn passing sentence, I have carefully considered the oral and written submissions of Mr Chan SC, including that the defendant has been a practising surgeon for the past fifty-two years and has devoted his life to serving his patients and contributing to the welfare of the wider general public\n[3]\n.\n11.\nI take into account the defendant, who is 76, is a person of good character and that the traffic record shows no traffic contraventions, the defendant having held a driving licence since 1967\n[4]\n.\n12.\nI take into account the defendant is a person of positive good character who has contributed to the field of medicine, including training medical students; volunteering to help the Hospital Authority during SARS and supporting the Government’s health initiatives, most recently Colorectal Cancer Screening\n[5]\n.\n13.\nI have read the defendant’s mitigation letter in which he expresses his deep remorse for what happened. The defendant feels extremely guilty about hitting Mr Tam having himself witnessed first–hand how bad driving can affect other road users, his wife having been knocked down by a drunk driver in 2002 from which she suffered permanent disability\n[6]\n.\n14.\nI have also read the letters written by the defendant’s daughters, friends, patients and nurses who have worked for the defendant. The defendant is variously described as a loving, faithful and hardworking man; a kind, competent and careful surgeon; an optimistic, frank and honest person with integrity; a benevolent and kind person; a caring person who understands the needs of his patients and a responsible and caring person to his patients, his family and his employees\n[7]\n.\n15.\nI take into account the deterioration in health of the defendant’s wife who, apart from being unable to walk as a result of the traffic accident in 2002, has developed Parkinson’s disease, dementia and chronic constipation which requires daily assistance\n[8]\n.\n16.\nIn his letter to court the defendant states that after he hit Mr Tam he immediately stopped and tended to Mr Tam; he was confused about how he could have hit Mr Tam because he recalled at the time the traffic light was green and that he told the same to the police and that he did not think he had driven wrongly.\n17.\nAfter reading the case papers the defendant was shocked to learn the traffic lights had already turned red before he arrived at the crossing; shocked to learn he was the one at fault and confused about how he could not recall seeing the red light. Suspecting there might be some neurological issues the defendant consulted neurologist Dr Kan\n[9]\n.\n18.\nThe defence have placed before the court the medical reports of Dr Kan and submit that it was reasonably possible that the defendant suffered from a transient hypotensive episode (or a brief pre-syncope attack arising from hypotension) which was then unknown to the defendant, but had impaired his ability to drive carefully and alertly\n[10]\n.\n19.\nAs indicated in court in the absence of evidence being called I do not accept that the defendant had or may have had a pre-syncope attack. Mr Chan having taking instructions informs the court that the defendant does not wish to rely on the medical reports.\n20.\nMr Chan invites the court to proceed on the basis that the defendant failed to keep a proper lookout and did not deliberately drive through the red light\n[11]\n.\nDiscussion\n21.\nCausing grievous bodily harm by dangerous driving is a serious offence for which the maximum penalty is 7 years’ imprisonment.\n22.\nIn\nR v Boswell\nthe Court of Appeal set out a number of aggravating and mitigating factors, factors which are relevant to both dangerous driving and dangerous driving causing death\n[12]\n. These factors were revised in\nR v Cooksley\n[13]\nand have been adopted in Hong Kong.\n23.\nIn\nSecretary for Justice v Chu Wing Yin Christine,\na case of causing grievous bodily harm by dangerous driving,the court listed thirteen aggravating factors, including the fact that the offence took place at a pedestrian crossing\n[14]\n.\n24.\nIn\nR v Cooksley\nas applied in the\nSecretary for Justice v Poon Wing Kay & another\nthe court emphasised that a sentencing court must look at the overall circumstances and the overall culpability of the offender\n[15]\n.\n25.\nIn\nSecretary for Justice v Chu Wing Ying Christine\nthe Court of Appeal stated that the dominant factor to be considered in sentencing is the defendant’s culpability, which involves two related assessments, the objective dangerousness of the defendant’s driving and the moral culpability of the defendant and having assessed culpability the court should consider the harm and impact caused to the victim, which involved an assessment of the nature and degree of the injuries sustained\n[16]\n.\n26.\nIn\nSecretary for Justice v Lau Sin Ting\nthe Court of Appeal said that each case is different and may vary greatly in its circumstances and too formulaic an approach to sentence may result in injustice\n[17]\n.\n27.\nIn\nR v Cooksley\nfour categories of culpability were adopted: where there are no aggravating circumstances; intermediate culpability; higher culpability; and most serious culpability, which categories have been adopted in Hong Kong\n[18]\n.\nFailure to comply with the red traffic light signal\n28.\nIn\nSecretary for Justice v Lam Siu Tong\n, a case of dangerous driving causing death, the Court of Appeal held that the disregarding of traffic lights when approaching a pedestrian crossing would be regarded as a serious aggravating feature, the degree of seriousness depending on the precise circumstances and that a conscious disregard for traffic lights would likely put the case into the most serious category\n[19]\n.\n29.\nMr Chan invites the court to note that not all cases of failing to stop at a red traffic light involving a pedestrian crossing, even where a pedestrian is hit, will be considered objectively dangerous and refers the court to various decisions where a finding of careless driving was made\n[20]\n.\n30.\nThis Mr Chan submits is not to suggest that the defendant’s driving was not dangerous but to illustrate that there may be a small degree of overlap between the upper end of careless driving and the lower end of dangerous driving.\n31.\nThe cases referred to by Mr Chan are factually very different to the facts of the present case for example in one case the pedestrian crossed the road when the light for pedestrians was red. I do not find these cases very helpful.\n32.\nThere have been a number of cases heard by the Court of Appeal involving pedestrians knocked down on pedestrian crossings:\nHKSAR v Lui Chung Tak\n[21]\n,\nHKSAR v Lee Yau Wing\n[22]\n,\nSecretary for Justice v Chu Wing Ying Christine\n[23]\nand\nHKSAR v Kwan Wan Ki\n[24]\n.\n33.\nClearly each case is to be decided on its own facts and circumstances. This is perhaps best highlighted by\nHKSAR v Lee Yau Wing\na case where the driving exhibited a conscious disregard for the traffic lights and for those pedestrians who might be using the crossing. The Court of Appeal in describing the circumstances as “very unusual”held the sentencing judge was right to adopt a starting point of 15 months’ imprisonment, which is less than the sentence in both\nHKSAR v Lui Chung Tak\nand\nSecretary for Justice v Chu Wing Ying Christine\nwhere the Court of Appeal accepted the driver did not deliberately jump the red light\n[25]\n.\nInjuries\n34.\nMr Tam sustained a fracture of the right ankle. Fracture reduction and fixation of ankle fracture was performed on 11 November 2019. Postoperatively Mr Tam was given an ankle foot orthosis. Mr Tam was discharged from hospital on 16 November 2019. Mr Tam was given sick leave for 189 days.\n35.\nMedical reports have been submitted to court detailing the injuries and follow up treatment\n[26]\n. Mr Chau confirms that Mr Tam, who is a student, has made a full recovery although he still experiences pain after exercising for ten minutes.\n36.\nIn\nHKSAR v Lui Chung Tak\nthe Court of Appeal said that it is not helpful to compare the various injuries which amounted to grievous bodily harm save where a dramatic level of injury may have an impact on sentence\n[27]\n. In\nSecretary for Justice v Chu Wing Ying Christine\nthe court said that really serious injury which impacts on the victim will be an important factor in the sentencing exercise\n[28]\n.\n37.\nWhilst the impact on people’s lives is to be taken into account when sentencing the Court of Appeal in\nSecretary for Justice v Poon Wing Kay\nsaid that a sentencing court must look at the overall circumstances and the overall culpability of the offender and that in assessing the overall seriousness culpability is often the dominant factor\n[29]\n.\nSentence\n38.\nIn\nSecretary for Justice v Poon Wing Kay\nthe Court of Appeal stated\n[30]\n: -\n“It is important for courts to drive home the message that there may sometimes be extremely grave consequences flowing from acts of dangerous driving and it is therefore necessary to have in mind a deterrent effect when sentencing in many cases involving dangerous driving …. A motor vehicle, many may often forget, when not driven to requisite standards, can kill or maim. The standards required by the law for motorists found in the road traffic legislation and elsewhere are there to ensure that all who can come into contact with motor vehicles (whether fellow motorists, passengers or pedestrians) are safe and that their lives are not endangered.”\n39.\nWith regard to the objective dangerousness of the defendant’s driving I take into account the section of Tai Po Road is long and affords the driver an unobstructed view of the traffic lights and the pedestrian crossing. This is shown in photograph 2 of the photographs submitted to court. The location is outside the former North Kowloon Magistracy, a location which I am familiar with having worked in North Kowloon Magistracy, albeit a long time ago, a fact made known to the parties.\n40.\nIf the defendant was paying attention he could not have failed to notice the crossing and that the traffic light changed from green to amber and then to red. Further, the defendant did not slow down on his approach to the pedestrian crossing.\n41.\nI am however prepared to accept that the defendant, who has driven for over fifty years without contravening any traffic law and was familiar with the road, did not deliberately drive through the red light and that due to inattention failed to realise the traffic lights had changed to red.\n42.\nI accept that apart from the offence taking place on a pedestrian crossing there are no other aggravating factors. I am satisfied the defendant’s driving falls within the intermediate category of culpability.\n43.\nWhilst Mr Tam still feels pain when exercising, I accept the injuries cannot be described as very serious. In\nHKSAR v Kwan Wan Ki\nthe injury was also a fracture of the ankle which required emergency closed reduction and external fixation. The court described the injuries as much less serious than those of the victims in\nSecretary for Justice v Chu Wing Ying Christine\nwhere one of three victims was extremely seriously injured.\n44.\nTaking into account all the circumstances, I am satisfied that the proper starting point after trial is 12 months’ imprisonment.\nTimely plea of guilty\n45.\nMr Chan explains the late plea arises from previous legal advice that on an objective analysis it was arguable the defendant’s driving was not dangerous. Mr Chan says this is because the line between careless driving and dangerous driving, being a completely objective analysis, is thin and that the consideration of whether the defendant had a defence in law was a difficult decision to make, case law being inconsistent in this area\n[31]\n.\n46.\nIn\nHKSAR v Ngo Van Nam\nthe Court of Appeal stated that subject to the overriding discretion of the judge in sentencing, a defendant who gives the Court or the prosecution an indication of a plea of guilty after trial dates are fixed and before the first day of trial is to be afforded a discount between 25% and 20%. In determining the appropriate discount the court further stated that the judge will have regard to the time at which the indication to plead guilty was given and all other relevant circumstances\n[32]\n.\n47.\nMr Chan accepting that a plea of guilty on the first day of trial attracts a discount of 20% submits that the basis of a reduced discount is largely focused on a lack of remorse.\n48.\nMr Chan invites the court to accept that the late plea is not an indication of the defendant’s lack of remorse\n[33]\n. In oral submissions Mr Chan asks the court to exercise the discretion in favour of the defendant.\n49.\nI reject the submission that the basis of a reduced discount is a lack of remorse. In my view the reduced discount reflects the time when the plea was entered and that remorse is subsumed in that discount. As the court stated in\nHKSAR v Ngo Van Nam\nthe utilitarian value of a plea of guilty is greater the earlier the plea of guilty is intimated or tendered\n[34]\n.\n50.\nWhilst I have no doubt the defendant is genuinely remorseful, in particular considering his wife was seriously injured as a result of a drink driver, the fact remains the plea tendered is a late plea.\n51.\nOn 6 October 2020 after an adjournment of almost four months to obtain legal advice, including from Senior Counsel (not Mr Chan SC), the defendant indicated a plea of not guilty to the charge. Trial dates were then fixed. The prosecution was required to prepare the case for trial and obtain their own expert report.\n52.\nMr Chau confirms that he was first notified that the defendant would plead guilty on the weekend prior to trial. As a result, no witnesses were required to attend court.\n53.\nTaking into account the indication was first given at the weekend prior to trial, just over six months after the trial dates were fixed and that no witnesses were required to attend court, I am satisfied a discount of 3 months’ imprisonment is appropriate which reduces the sentence to 9 months’ imprisonment.\nSuspended sentence\n54.\nIn\nSecretary for Justice v Chu Wing Yin Christine\nthe Court of Appeal stated that a judge will proceed on the basis that the normal sentence for an offence of causing grievous bodily harm by dangerous driving is one of immediate imprisonment and that other sentencing options would only be available in exceptional cases dependent upon the circumstances of the offence and of the offender\n[35]\n.\n55.\nAlthough it has been said that not much assistance will be derived from an examination and comparison of the facts of other cases\n[36]\n, I note that in the cases to which I have referred earlier involving pedestrians knocked down on pedestrian crossings, the Court of Appeal held that immediate imprisonment ranging from 6 months to 20 months’ imprisonment was appropriate.\n56.\nMr Chan submits that the defendant did not deliberately run the red light and invites the court to consider the defendant’s age, impeccable traffic record, contribution to society and that the defendant has to look after his elderly wife and find that this is one of those exceptional cases where the circumstances of the offence and the offender justifies consideration of other sentencing options aside from one of immediate imprisonment and that a suspended sentence is justified\n[37]\n.\n57.\nIn support of the submission that the circumstances of the offence and the offender justifies a suspended sentence Mr Chan refers the court to the Reasons for Sentence in\nHKSAR v Lee Yeung Chi, Richard\n[38]\nand\nHKSAR v Mok Wong Kin Ming\n[39]\n.\n58.\nMr Chan, accepting that the sentences in these cases may well be considered to be lenient, submits they show that in the right circumstances, it is open to the court to achieve an appropriate balance between the need for deterrence and compassion to an individual defendant’s circumstances without the need to impose an immediate custodial sentence\n[40]\n.\n59.\nAs another example of where a non-custodial sentence was imposed Mr Chan also refers to\nHKSAR v Cheung Yuk Tong\n, which was an appeal against conviction only for the offence of dangerous driving\n[41]\n. I note this is a case which was heard prior to the enactment of the offence of causing grievous bodily harm by dangerous driving. I do not find this case of assistance.\n60.\nIn his supplemental written submission Mr Chan refers the court to\nSecretary for Justice v Wade, Ian Francis\nwhere the Secretary for Justice appealed the sentence of a fine of $30,000 imposed for dangerous driving\n[42]\n. The respondent drove whilst the alcohol level in his body was 3.36 times the legal limit during which time he was involved in collisions with four other vehicles. The vehicles were only slightly damaged and nobody was injured.\n61.\nThe Court of Appeal describing the driving as a persistent, prolonged course of very bad driving, which evinced a reckless disregard for the safety of other road users, held the fact that the respondent drove his motor vehicle whilst the alcohol level in his body was 3.36 times the legal limit, the appropriate starting point was 9 months’ imprisonment\n[43]\n.\n62.\nThe court then went on to consider whether or not it was appropriate to suspend the sentence. Notwithstanding the aggravating features of the driving, having regard to the low speed at which the respondent drove, the absence of injury to anyone, the relatively low level of damage caused to other vehicles and the age of the defendant who was 75 and of positive good character and in ill-health, the court were satisfied that it was appropriate to suspend the sentence\n[44]\n.\n63.\nMr Chan next refers the court to the Reasons for Sentence in\nHKSAR v Yeung Tak Man\nas an example of the court following the guidance given in\nSecretary for Justice v Wade, Ian Francis\nand imposing a suspended sentence for dangerous driving\n[45]\n.\n64.\nAfter careful consideration of all the circumstances of the offence and the defendant and bearing in mind the need for individual justice, I am persuaded that a suspended sentence is appropriate. The defendant is convicted and sentenced to 9 months’ imprisonment suspended for 12 months.\n65.\nIf the defendant commits a further offence punishable by imprisonment during the next 12 months, the suspension will be lifted and the defendant ordered to serve 9 months in addition to any sentence imposed for the new offence.\nDisqualification\n66.\nThere is mandatory disqualification of not less than 2 years for causing grievous bodily harm by dangerous driving unless the court for special reasons decides not to make such an order. I find there are no special reasons.\n67.\nThe defendant says he is determined not to drive again and asks the court to make an order that he be disqualified from driving for the rest of his life\n[46]\n. The court does not have the power to disqualify for life. Only on conviction for causing death by dangerous driving or driving a motor vehicle without proper control under influence of a specified illicit drug may a court order the person to be disqualified for life\n[47]\n.\n68.\nTaking into account the circumstances of the driving and the defendant’s good traffic record, I am satisfied that the minimum period of 2 years’disqualification is appropriate. The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 2 years.\nRe-testing\n69.\nSection 70\nof the\nRoad Traffic Ordinance\nprovides that a court may order that a person be disqualified until he has passed the test of competence to drive. Re-testing is designed to protect road users from an offender who has shown himself a real risk on the roads\n[48]\n.\n70.\nIn view of the defendant’s good traffic record I was initially of the view that a re-test order was not appropriate. Having given the matter further consideration, in particular the defendant asking to be disqualified for life which indicates a lack of confidence that he can drive safely, I am of the view if the defendant wishes to drive again he must first pass a test of competence to drive.\n71.\nI order that the defendant cannot drive after the disqualification period until he has passed a test of competence to drive. Having made an order of re-testing I do not order the defendant to attend and complete a driving improvement course pursuant to\nsection 72A\n(1A) of the\nRoad Traffic Ordinance\n.\n(D. J. DUFTON)\nDistrict Judge\n[1]\nCap 374\n.\n[2]\nMr Chau informed the court that Mr Tam crossed the road from left to right.\n[3]\nSee §§6 & 10 of the mitigation submission of the defendant.\n[4]\nAlso see §§4 & 8 of the mitigation submission of the defendant.\n[5]\nSee §10 of the mitigation submission of the defendant.\n[6]\nAlso see §§9 & 12 of the mitigation submission of the defendant.\n[7]\nAlso see §11 of the mitigation submission of the defendant.\n[8]\nAlso see §13 of the mitigation submission of the defendant and the letters from the defendant’s daughters.\n[9]\nAlso see §§14-21 of the mitigation submission of the defendant\n[10]\nSee §§35, 41 (c), 56 & 66 (e) of the mitigation submission of the defendant.\n[11]\nSee §§34 & 66 (e) of the mitigation submission of the defendant.\n[12]\n[1984] 3 All ER 35\n.\n[13]\n[2003] RTR 32.\n[14]\n[2020] 1 HKLRD 771\nat §80.\n[15]\n[2007] 1 HKLRD 660\nat §53.\n[16]\n[2020] 1 HKLRD 771\nat §§53-56 & 78-79.\n[17]\n[2010] 5 HKLRD 318\nat §36.\n[18]\nFor example, see\nSecretary for Justice v Liu Kwok Chun\nCAAR 3/2009.\n[19]\n[2009] 5 HKLRD 601\nat §20.\n[20]\nSee §31 of the mitigation submission of the defendant.\n[21]\nCACC 221/2012.\n[22]\n[2013] 1 HKC 572\n.\n[23]\n[2020] 1 HKLRD 771\n.\n[24]\nCACC 5/2019 (English Translation)\n[25]\n[2013] 1 HKC 572\nat §§45 & 46.\n[26]\nMFI-5\n[27]\nCACC 221/2012.\n[28]\n[2020] 1 HKLRD 771\nat §56.\n[29]\nSee\nSecretary for Justice v Poon Wing Kay\n[2007] 1 HKLRD 660\nat §10 (2) & (4).\n[30]\nSee\nSecretary for Justice v Poon Wing Kay\n[2007] 1 HKLRD 660\nat §10 (3).\n[31]\nSee §§58-61 of the mitigation submission of the defendant.\n[32]\n[2016] 5 HKLRD 1\nat §224.\n[33]\nSee §63 of the mitigation submission of the defendant.\n[34]\n[2016] 5 HKLRD 1\nat §198-200.\n[35]\n[2020] 1 HKLRD 771\nat §§58 & 81 cited by Mr Chan SC.\n[36]\nSee\nHKSAR v Chan Chi Chiu, Louis\nCACC 249/2012.\n[37]\nSee §§37 & 65-72 of the mitigation submission of the defendant and §57 of the supplemental submission of the defendant.\n[38]\nDCCC 26/2017.\n[39]\nDCCC 397/2018. See §§67-72 of the mitigation submission of the defendant.\n[40]\nSee §67 of the mitigation submission of the defendant.\n[41]\n[2008] 1 HKCLRT 85. See §71 (b) of the mitigation submission of the defendant.\n[42]\nCAAR 1/2015.\n[43]\nCAAR 1/2015 at §§36-40.\n[44]\nCAAR 1/2015 at §48.\n[45]\nDCCC 334/2017\n[46]\nSee §§56 & 74 of the mitigation submission of the defendant.\n[47]\nSee section 36 (2AB) and\nsection 39J\n(4) of the\nRoad Traffic Ordinance\n.\n[48]\nSee for example\nHKSAR v Lee Chak Kuen\nHCMA 1034/2004.", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2020/DCCC000328_2020.docx", + "file_name": "DCCC000328_2020.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hklat/2009_HKLaT_1/LBTC002827_2008_abp_fallback.txt b/en_cases_hklat/2009_HKLaT_1/LBTC002827_2008_abp_fallback.txt new file mode 100644 index 0000000..780deac --- /dev/null +++ b/en_cases_hklat/2009_HKLaT_1/LBTC002827_2008_abp_fallback.txt @@ -0,0 +1,51 @@ +LBTC 2827/2008 IN THE LABOUR TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CLAIM NO. LBTC 2827/2008, 2828/2008 & 2829/2008 __________________________________ BETWEEN LBTC 2827/2008 LBTC 2828/2008 LBTC 2829/2008 KWAN SIU WA BECKY WU YEE MEI VERA HO KIT MAN JENNY CLAIMANTS   and    CATHAY PACIFIC AIRWAYS LIMITED DEFENDANT   __________________________________ Coram: Pang Ka Kwong, Esq., Deputy Presiding Officer Date of Trial: 22, 23 & 24 December 2008, 12 January 2009 Date of Decision on Liability: 12 January 2009 Date of Reasons for Decision on Liability: 12 January2009 __________________________________ Reasons for Decision on Liability The trial proceedings use the Chinese language. The parties agree that I can deliver this Reasons for Decision on Liability in the English language. The parties reserve their respective positions on quantum. +Under paragraph (a) 1 of the Claimants’ respective Form 2, the Claimants stated that their grounds for the claims include :- (a) “Failure to grant statutory holidays” (b) “Failure to grant annual leaves”. The Claimants do not pursue the claims under paragraph (a) 1. Claim The present claims are for "shortfalls" in the amounts of Statutory Holiday Pay ("SHP") and Annual Leave Pay ("ALP") that were paid by Cathay Pacific, such shortfalls allegedly arising from the non-inclusion of Line Duty Allowance ("LDA"), Outport Allowance ("OA"), Ground Duty Allowance ("GDA") and Duty Free Sales Commission ("DFSC") in calculating SHP and ALP. In material, there is no dispute on the background facts of the cases. Kwan Siu Wa Becky ("Becky") By a letter of appointment dated 20th September 1975, Becky joined Cathay Pacific as a Junior Flight Hostess of the cabin crew. She was promoted to the post of Chief Purser L1011 on 18th September 1987. The post was retitled to Inflight Service Manager on 1st April 1999 and she remains in the same position to date. She is required to perform duties in air and on ground as Cathay Pacific directs. Becky is a monthly paid cabin crew. She receives a basic salary and title allowance of HK$23,883 and HK$11,501 respectively +each month. In addition, she receives various allowances such as LDA and OA. By 2002 Becky has served Cathay Pacific for more than 10 years and therefore she is entitled to 5 weeks' paid annual leave and 94 Guaranteed Days Off ("GDOs") each year. Additionally, Cathay Pacific provides Becky with the following days without work :- (a) Short Break - A period, at or away from base, of at least 34 hours and including 2 local nights during which a crew members are not required to perform any duty. (b) Stop over in outports - A period commencing after the scheduled arrival time of crew at an outport until 60 minutes before the scheduled departure time. Crew members are not required to perform any duty during the stop over. (c) Standby duty also known as reserve duty (without being called out) – Crew members are scheduled for standby duty period specified on the front sheet of the roster. The actual period scheduled varies from roster to roster. Crew members will be notified within their standby period to operate a flight if it is required. (d) Guaranteed Days Off ("GDOs") - these are essentially days without work and are further explained below. Clause 16(C) of Conditions of Service 1986 (“COS 1986”) provides :- +"Guaranteed Days Off (GDO) - the annual GDO count for cabin crew on line flying will be based on two days off per week less the period of the cabin crew member's annual leave entitlement, i.e. those cabin crew entitled to three weeks annual leave per year will be entitled to 98 GDO's, those cabin crew with four weeks annual leave per year will be entitled to 96 GDO's and those cabin crew entitled to five weeks annual leave will be entitled to 94 GDO's. Cabin crew required to operate on a 'G' day will be given the option of having another 'G' day at a mutually convenient time or payment at the rate of HK$40 per flying hour for the duration of the flight. Such payment will be made only for the first 24 hours involved. If payment is made then these GDOs will be deducted from the annual GDO entitlement. Rules contained in Operations Manual. Volume 1 Part 2 will apply." Wu Yee Mei Vera ("Vera") By a letter of appointment, dated 12th June 1995, Vera joined Cathay Pacific as a cabin attendant. She was promoted to the post of purser on 1st December 2000 and remains in the same position to date. She is required to perform duties in air and on ground as Cathay Pacific directs. Vera is a monthly paid cabin crew. She receives a basic salary and title allowance of HK$20,139 and HK$2,370 respectively each month. In addition, she receives various allowances such as LDA and OA. + Between June 1995 and May 2000, Vera is entitled to 3 weeks' paid annual leave and 98 GDOs each year. Between June 2000 and May 2005, she is entitled to 4 weeks' paid annual leave and 96 GDOs each year. By June 2005, she is entitled to 5 weeks' paid annual leave and 94 GDOs each year. Additionally, Cathay Pacific provides Vera with the following days without work :- (a) Short Break; (b) Stop over in outports; (c) Standby duty also known as reserve duty (without being called out); (d) Guaranteed Days Off ("GDOs") (see explanation below). Clause 13(b) of Conditions of Service 1993 (“COS 1993”) provides :- "Those Cabin Attendants entitled to three weeks annual leave per year will be entitled to 98 GDOs, those Cabin Attendants entitled to four weeks annual leave per year will be entitled to 96 GDOs and those Cabin Attendants entitled to five weeks annual leave will be entitled to 94 GDOs. In any of the above case, the number of GDOs granted includes days off in lieu of the statutory holidays to which a Cabin Attendant would otherwise be entitled pursuant to the Employment Ordinance of Hong Kong" The details of the Short Break, Stop over in outports, Standby duty also known as reserve duty and GDOs are the same in Vera's case as +in Becky's case. Ho Kit Man Jenny ("Jenny") By a letter of appointment, dated 19th January 2005, Jenny joined Cathay Pacific as a Flight Attendant of the Inflight Services Department and she remains in the same position to date. She is required to perform duties in air and on ground as Cathay Pacific directs. Cathay Pacific pays Jenny Minimum Guaranteed Flying Pay ("MGFP") at the value of 70 Block Hours (see explanation below) i.e. 70 hours X HK$146.4 per hour = HK$10,248 per month. The payment structure of Jenny is set out in Clause 3 of the COS 2003, Clause 3.1 of which provides :- "Salary Cabin Attendants will (subject to any provisions stated in the Letter as to probation or otherwise) receive a salary calculated on a monthly basis. Salary will be calculated with reference to the Minimum Guaranteed Flying Pay. If the total value of a Cabin Attendant's Block Hours and Credits in the relevant month exceeds the Minimum Guaranteed Flying Pay, he or she will receive a salary calculated by reference to the actual Block Hours flown and Credits earned in that month. The applicable payment rate of a Block Hour, and the number of Block Hours assigned to Cabin Attendants, will be determined by the Company from time to time and notified to the Cabin Attendant. For the purposes of these COS: +Block Hours are the hours between Departure Time and Arrival Time (or otherwise, as amended or determined by the Company in its absolute discretion from time to time). Credits comprise : (i) Work Credits : these are credits received for absences from flight duties by reason of, for example, Reserve Duty or Special Duties; and (ii) Leave Credits : these are credits received for absences from flight duties by reason of leave. Leave Credits may include payment additional to the paid time off that a Cabin Attendant receives as such leave pursuant to these COS. (However, for the avoidance of doubt, the Company's use of a formula which records Leave Credits for the purpose of computation of salary does not create any entitlement to payment additional to the actual paid time off taken, except and to the extent determined by the Company from time to time.) The type and value of credits available to Cabin Attendants will be determined by the Company and notified to the Cabin Attendants, from time to time, having regard to relevant Company Policies." Credits that Jenny may earn include :- (i) Work Credits : Jenny earns credits for absences from flight duties by reason of :- Training - 4.65 credit hours for each calendar day of training; Special duties - 4.65 credit hours for each +calendar day of special duties; Standby duties - 1 credit hour for each 3 hours of standby duties; Duty travel - 0.5 credit hour for each 1 hour of duty travel. (ii) Leave credits : Jenny earns 3.25 credit hours for each day of leave taken. The credit of 3.25 block hours for each day of leave is calculated by reference to the following mathematical formula. Cathay Pacific assumes that a cabin crew works 85 credit hours (inclusive of Block Hours flown) and 25.5 ground duty hours (see explanation in paragraph 83 below) each month. Ground duty hours worth 50% of Block Hours. Therefore, total monthly credit hours for such crew member are :- 85 + (25.5 ÷ 2) = 97.75 This figures is then averaged over 30 days to give a standard credit of 3.25 block hours for each day of leave taken. In addition, Jenny receives various allowances such as OA, GDA and DFSC. Jenny does not receive LDA, whilst Becky and Vera do not receive GDA or DFSC. With less than 5 years’ service, she is entitled to 21 days' paid annual leave. Additionally, Cathay Pacific provides Jenny with the following days without work :- +(a) Short Break (b) Stop over in outports (c) Standby duty also known as reserve duty (without being called out) (d) Days Without Duties - see explanation below. The details of Short Break, Stop over in outports and Standby duty are the same in Jenny’s case as in Vera and Becky’s case. Clause 2.4(3) of the Conditions of Service 2003 (“COS 2003”) provides :- "Days Without Duties The company will periodically issue rosters for Cabin Attendant Days Without Duties. These rosters will apply for the stated time period. The Days Without Duties will include any statutory holidays (or alternative holidays) and rest days, as the case may be, to which a Cabin Attendant is entitled under the Employment Ordinance. For operational reasons, the Company reserves the right to require Cabin Attendants to work on any Day Without Duties subject to and in accordance with the provisions of the Employment Ordinance." The Issues Despite that Becky and Vera are employed under different COS, they are in the same position for the purpose of the present claims. They contend that Cathay Pacific should include OA and LDA in the calculation of their ALP and SHP in accordance with the old ss.41 and 41C of the Employment Ordinance (“EO”). Jenny contends that Cathay +Pacific should include OA, GDA and DFSC in the calculation of her ALP and SHP in accordance with the old ss.41 and 41C of EO. Jenny also contends that as she is hourly paid, Cathay Pacific has not paid her any SHP on her statutory holidays. Cathay Pacific denies that OA, LDA, GDA and DFSC are required to be included in the calculation of SHP and ALP. Cathay Pacific also contends that Jenny is paid a monthly salary that is calculated with reference to the MGFP and, therefore, it has already paid Jenny’s SHP. The Employment Ordinance ("EO") The following provisions are relevant to the present claims : “2. Interpretation (1) In this Ordinance, unless the context otherwise requires "wages"(工資), subject to subsections (2) and (3), means all remuneration, earnings, allowances including traveling allowances and attendance allowances, attendance bonus, commission, overtime pay, tips and service charges, however designated or calculated, capable of being expressed in terms of money, payable to an employee in respect of work done or to be done under his contract of employment, but does not include (d) any sum payable to the employee to defray special expenses incurred by him by the nature of his employment;” +The old s.41 of the EO (prior to the changes introduced by the Employment (Amendment) Ordinance ("EAO") in July 2007) provides : "41 Rate of Holiday Pay (1) Holiday pay shall be a sum equivalent to the wages which the employee would have earned on a full working day. (2) Notwithstanding subsection (1), where an employee is employed on piece rates or where the daily wages of an employee vary from day to day, the holiday pay shall be a sum equivalent to the average daily wage earned by the employee, and for the purposes of this subsection the average daily wage shall be the average of the daily wages earned by the employee on each day on which he worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the holiday or first day of the holiday." The old s.41C of EO (prior to the changes introduced by the EAO) provides : "41C. Rate of Annual LeavePay (1) Annual leave pay shall, subject to subsection (2), be a sum equivalent to the wages which the employee would have earned if he had worked every day during the period of annual leave. Where an employee is employed on piece rates or where the wages of an employee vary from +day to day, the annual leave pay shall be calculated by reference to the average daily wage earned by the employee, and for the purposes of this subsection the average daily wage shall be the average of the daily wages earned by the employee on each day on which he worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the first day of the annual leave or on the day on which the contract of employment terminates, as the case may be." Following the introduction of the EAO, the provisions for calculating SHP and ALP are :- (i) SHP "41. Rate of Holiday pay (1) For the purposes of subsections (2), (3) and (4), "wages"(工資) includes any sum paid by an employer in respect of - (a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; (b) a day of leave taken by the employee with the agreement of his employer; (c) a normal working day on which the employee is not provided with work; (d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap 282). +(2) The daily rate of holiday pay is a sum equivalent to the daily average of the wages earned by the employee during - (a) a period of 12 months immediately before the holiday or first day of the holidays (as appropriate); or (b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the holiday or first day of the holidays (as appropriate), the shorter period. (3) In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period - (a) any period therein for which the employee was not paid his wages or full wages by reason of - (i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee; (ii) any leave taken by the employee with the agreement of his employer; (iii) his not being provided by his employer with work on any normal working day; or (iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap 282); and (b) any wages paid to him for the period +referred to in paragraph (a). (4) For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (3). ….." (ii) ALP "41C Rate of annual leave pay (1) For the purposes of subsections (2), (3) and (4), "wages"(工資) includes any sum paid by an employer in respect of - (a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; (b) a day of leave taken by the employee with the agreement of his employer; (c) a normal working day on which the employee is not provided with work; (d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap 282). (2) The daily rate of holiday pay is a sum equivalent to the daily average of the wages earned by the employee during - (a) a period of 12 months immediately before the holiday or first day of the holidays (as appropriate); or +(b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the holiday or first day of the holidays (as appropriate), the shorter period. (3) In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period - (a) any period therein for which the employee was not paid his wages or full wages by reason of - (i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee; (ii) any leave taken by the employee with the agreement of his employer; (iii) his not being provided by his employer with work on any normal working day; or (iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap 282); and (b) any wages paid to him for the period referred to in paragraph (a). (4) For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a fraction of the amount earned by the employee +on a normal working day, the wages and the day are to be disregarded in accordance with subsection (3). ….." The EAO Since the EAO takes effect, Cathay Pacific has included LDA, GDA and DFSC in calculating SHP and ALP. OA is not included in the calculation of SHP and ALP even after the introduction of the EAO. Analysis and Findings OA Becky is employed under Conditions of Service 1986 ("COS 1986"). Clause 5(C) of COS 1986 provides : Outport Allowance "Overnight, meal and laundry allowances will be paid in accordance with the rates laid down in Operations Manual, Volume 1, Part 4." OA is known as "Overnight allowances" in Operations Manual, Volume 1, Part 4, which provides (among other things) : "Overnight allowances are reviewed bi-annually and on any change of hotel. They are intended to cover reasonable out-of-pocket expenses. Vera is employed under Conditions of Service 1993 ("COS 1993"). + Clause 15(ii) of the COS 1993 provides, "Whilst Cabin Attendants are on duty in outports, they will receive overnight, meal and laundry allowances in accordance with the policy and rates laid down in Operations Manual, Vol. 1 Part 2 and 4 as amended from time to time and/or such other allowances or meal arrangements a published from time to time. Jenny is employed under Conditions of Service 2003 ("COS 2003"). Clause 1.3 of the COS 2003 provides :- "In addition to the duties and obligations set out in these COS, the Cabin Attendant is also required to comply with Company Policies." Clause 4.1 of the COS 2003 provides :- "4.1 Outport facilities and reimbursement Subject to Company Policies in force from time to time, a Cabin Attendant who is required to stay at an Outport between flying duties may be provided: (i) rest facilities and accommodation; and (ii) reimbursement of expenses for necessary meals and other expenditure incurred during the stay. 4.2 Other benefits A Cabin Attendant may be entitled or eligible to receive other benefits offered or provided by the Company in accordance with the relevant Company Policies." +Clause 10 of the COS 2003 provides that "Company Policies" means :- "the provisions of that document produced by the Company entitled the Operations Manual, as in force from time to time, and any other policies, schemes, rules and regulations relating to or arising from employment which may be issued, and amended or varied by the Company in its discretion from time to time. Such Operations Manual, policies, schemes, rules and regulations are collectively referred to in these COS as "Company Policies", and references in these COS to Company Policies shall where the context permits be construed accordingly." Clause 5.1 of the Operations Manual, Volume 6, Part 1 provides :- "At each outport a schedule of meal and overnight allowance has been established. These allowances are reviewed bi-annually in order to meet price changes. The allowances are intended to meet reasonable costs. Upon arrival at an outport where a stopover is scheduled crew members will be issued with the cash allowance by the hotel in accordance with the schedule, and based on a telex from Crew Control." Although their entitlement is arising from difference contractual provisions, the details of OA are the same in all Claimants’ case. OA is calculated by reference to a formula agreed with the Fight Attendants Union (“FAU”) that takes account of the actual cost of meals and services at the relevant crew hotel. The amount of each item +of OA is determined by reference to the costs in the designated crew hotel in each port. In practice, reviews of the allowance are held twice a year and adjustments will also be made whenever there is a change in crew hotel. The allowance may decrease as well as increase. OA includes :- meal allowance; allowance in case of delayed and rescheduled flight; incidental allowance ("IA"); laundry allowance; duty travel expenses and management crew allowance; taxi allowance; and Indian port allowance. Meal allowance will be paid if crew members are rostered on flight that requires a stopover at an outport that exceeds 2 hours and the stopover includes any part of the following period : (i) Breakfast - 0600 to 0859; (ii) Lunch - 1200 to 1359; (iii) Dinner - 1800 to 2159. When the stopover time falls between 0600-0859 of the local time, crew members will be paid an amount in respect of breakfast. The calculation is based on the hotel coffee shop prices for full American breakfast consists of fruit juice, two eggs with ham or bacon or sausage, toast with jam or marmalade and coffee, or the breakfast set rate covering all the above items, whichever the least expensive. When the stopover time falls between 1200-1359 of the local time, the amount paid in respect of lunch will not be less than a set lunch +menu consisting of soup of the day, a chicken dish, medium priced dessert and coffee in the medium priced Western style restaurant in the crew hotel. When the stopover time falls between 1800-2159 of the local time, crew members will be paid an amount in respect of dinner. The calculation of the amount in respect of dinner is based on the crew hotel medium priced Western style restaurant. If no medium restaurant exists in the hotel then the prices will be based on the most expensive hotel coffee shop price or the lower end of the top class hotel restaurant. The amount covers a medium priced steak, a medium priced dessert and coffee in a set menu. Delayed flights allowance will be paid if crew members are in the airport and the flight delays for more than 30 minutes. Operations Manual Volume 1, Part 4, Clause 2.1C(a) provides : "Delayed Flights If the crew are at the airport, refreshment chit or reimbursement up to a maximum of HK$90 will be authorized if the delay exceeds 30 minutes." As to rescheduled flight allowance, if crew members are required to stay at the airport, meal vouchers will be given. When crew members are required to stay at the hotel, meal allowance will be provided if the rescheduled stopover includes any part of the period stated in the above. In respect of IA, Clause 2.1(D) of Operations Manual, Volume 1, Part 4 provides : +"D. Incidental Allowance An incidental allowance will be paid when a stopover exceeds 6 hours. If a stopover exceeds 30 hours, a second incidental allowance will be paid. A third incidental allowance will be paid if a stopover exceeds 54 hours and so on. During a continuous duty period if a stopover exceeds 6 hours an incidental allowance will be paid." Crew members on "shuttle" duties are deemed to be on continuous duty for the purpose of qualifying for overnight allowance. An example of a "shuttle" duty is Paris-Manchester-Paris. No allowance is paid for crew members operating shuttle duties from their homeports. IA is calculated based on two times flag fall in an air-conditioned taxi to and from places for a beer or drinks, eight km or five miles total, two small local beers in the crew hotel bar or crew lounge and a tip for one small suitcase. The provision of IA is similar to that of "Overnight Allowance" in Clause 5.5 of the Operations Manual, Volume Part 1. There is no provision on IA in Operations Manual, Volume 6 Part 1. Laundry allowance is paid on the 3rd night and consecutive nights away from home base. The laundry allowance calculation is based on costs in the crew hotel to launder one shirt, one undershirt, one pair of underpants, one pair of socks and one handkerchief. Taxi allowance will be paid if crew members incur cost on taxi journey between the airport and the hotel. Taxi allowance will not +normally be paid when Cathay Pacific or the hotel provides transport or where the hotel operates regular shuttle bus service between the airport and the hotel. Indian port allowance is simply the overnight allowances where crew members fly into Indian ports. The only difference is that the allowance for Indian ports is paid in Hong Kong instead of overseas. The parties dispute where crew members are put in a hotel that is more expensive than the designated crew hotel in an ad hoc situation, if they want to receive OA that is calculated according to the higher of the different hotel tariffs, whether receipts are required to prove that extra out-of-pocket expenses are incurred. The Claimants testified that in their personal experience, receipts were never required. Ms Li Ka Lia Elizabeth, Cathay Pacific’s representative do not have personal experience in the matter. I accept that the Claimants are honest witnesses and their testimony is reliable. After having carefully considered all evidence, I accept that in such case, in practice, receipts will not be required. Usually, crew members are not required to demonstrate that they actually incur any expense while working away from home base. The Claimants produced a 1994 Year and Review Agreement between Cathay Pacific and FAU the contents of which show that there were discussions to change the manner of calculation of OA from meals basis to time basis. In this respect, however, no change has been agreed. The rate of LDA(A) is four times more than that of LDA(B) +(See paragraph 86 below). Becky explained that it is because crew members do not earn OA when they perform duties on day turnaround and split duty flights. Becky said that the purpose of the division being to compensate crew members’ loss of OA, it shows that Cathay Pacific recognizes that OA is a source of income of crew members. Cathay Pacific denies that OA is required to be included in calculating SHP and/or ALP on the following basis : (a) OA is not "wages" within the definition of "wages" in s.2 of the EO as it falls within the exception in subparagraph (d) of s.2 being a "sum payable to the employee" to defray special expenses incurred by him by the nature of his employment", and (b) further and in the alternative, if OA is "wages" under s.2 of the EO (which is denied): (i) OA is not "wages" which the Claimants "would have earned" for the purposes of ss.41(1) and 41C(1) of the EO, and (ii) OA is not "daily wages" for the purposes ss.41(2) and 41C(2) of the EO and/or it is impossible to calculate OA on a daily basis. Firstly, I deal with the question on whether OA is wages within the definition of "wages" in s.2 of the EO. The Claimants contend that OA is wages because it is described in the COS and the Operations Manual as an item of allowance +and that it is represented by Cathay Pacific in its advertisements as forming part of a cabin crew's income. The above considerations relate to how the parties label OA. It is trite that the court does not only look at the label of a payment to determine its true nature. The label is not conclusive. It is not what the parties call it but what it is in substance that matters. One has to look into the nature of the payment, the reasons therefore and the circumstances under which the payment is made. In practice, the Claimants have never paid salary tax on income earned by OA. OA (except for the allowance for Indian ports) is paid overseas. Due to foreign exchange restrictions, allowance for Indian ports is paid when crew members report duty at the Hong Kong airport as they start the flying duty. In my view, the above arrangement is congruent with the intention that OA is to cover out of pocket expenses. OA is calculated by reference to a formula agreed with FAU, which takes account of the actual cost of meals and services at the relevant crew hotel in each port. Periodical reviews of the allowance are held. It appears that the amount of OA payable is a genuine pre-estimate of what the amount of the expense is likely to be. I am aware that OA forms a substantial part of the Claimants' total income and it arises in the course of flying duties performed by them at outports. +After having carefully considered all evidence, I accept that the purpose of OA is to cover meals and miscellaneous out-of-pocket expenses relating to the Claimants' layover overseas between flying duties. OA is however paid in the form of a fixed allowance instead of an actual reimbursement against receipts and, it is on this basis (and on the basis that the allowance is non accountable rather than an accountable reimbursement) that the Claimants seek to argue that OA constitutes wages within the meaning of s.2 of the EO and, does not fall within exception (d). Cathay Pacific contends that the meaning of the words "to defray" means "to reimburse" or "to provide money to cover the costs or expenses". Therefore, the exception in subparagraph (d) applies to a non-accountable allowance as well as to an allowance that is available on a reimbursement basis only. Cathay Pacific lends support from the judgment of Deputy High Court Judge To in Star Express Limited v Cheng Tak and Ors, Labour Tribunal Appeal No. 86/1998, unreported, 11 May 1999. In that case, it was held that on the basis that pre-determined and non-accountable fixed monthly payments made to drivers of tourist coaches to cover parking fees were genuine pre-estimates of what the amount of the parking fees was likely to be, such payments constituted the reimbursement of expense and did not constitute "wages". The Claimants contend that the term "special expenses" in subparagraph (d) to the definition of "wages" in s.2 of the EO denotes something that is of a non-recurrent nature and should be an one-off +expenditure pertinent to the nature of the employment. I note that there is no requirement under the EO that such "special expenses" should be non-recurrent in nature. Though some OA components such as meals and traveling expenses are daily expenses that are incurred whether the Claimants are inside or outside Hong Kong, the Claimants should accept that probably they will incur extra meal and traveling expenses when they stay overseas. Plainly such extra expenses can be regarded as special expenses incurred by them by the nature of their employment. During the trial hearing, the Claimants did not pursue the contention that as IA does not relate to out-of-pocket expenses, IA is a hardship allowance. Anyway, such assertion is not borne out by the relevant provisions of the COS and the Operations Manual. In my view, there is no suggestion that IA is in the nature of a hardship allowance as alleged by the Claimants. After having carefully considered all evidence, I hold that OA is not "wages" within the definition of s.2 of the EO because it falls within the exception in subparagraph (d) being "a sum payable to the employee to defray special expenses incurred by him by the nature of his employment." I do not need to deal with the second leg of Cathay Pacific's argument (See para. 64(b) above). LDA and GDA The details of LDA and GDA are as follows. Clause 5(A) of the COS 1993 provides :- +"A Line Duty Allowance will be paid at the rate published from time to time from each flying duty hour. This allowance will be paid to all Cabin Attendants for each hour spent on flying duty. It is not part of basic salary and will not be paid for any other duty or non-flying activities including sick leave travel. The Line Duty Allowance will be calculated and paid on the basis of Flying Duty Period (FDP) as defined in the Operations Manual Vol. 6." Clause 3.2 of the COS 2003 provides :- "Allowances A Cabin Attendant may also receive, in addition to salary, other payments or allowances, in respect of any special or other duties or circumstances arising from the Cabin Attendant's employment, in accordance with any Company Policies or as determined by the Company's discretion. Such allowances may include … [Ground Duty Allowance]." Clause 3.2(A) of the COS 2003 provides that GDA is payable for ground duty hours spent on ground, being :- “(i) the time between when Cabin Attendants are required by the Company to report for duty and the time from which the aircraft commences to move whether under its own power or not ("Departure Time"); (ii) 15 minutes after the time when the aircraft is finally stationary after landing ("Arrival Time") in the last single sector a cabin crew operates prior to the Rest Period ("the Final Sector") or (as the case may be), in situations of extended delay after the Arrival Time where a cabin crew is required to remain on an aircraft in excess of one hour after arrival in the Final Sector, the actual +time the cabin crew is required to carry out duties in relation to the extended delay; and (iii) save in relation to extended delays which are covered by paragraph (ii) above, within a Flight Duty Period any time on ground which is not considered as Rest Period.” Crew members' duty comprises of time on ground and time in air. LDA is payable due to time in air (line duty hours). GDA is payable due to time on ground preparing to fly (ground duty hours). They both relate to duty time that is dependant on a number of different factors. While LDA and GDA are different, I consider that I can deal with them at the same time for the purpose of the present claims. In the Statement of Defence filed in these proceedings, Cathay Pacific said that as the COS provides that the Claimants “may” be entitled to OA, LDA, GDA and DFSC, there is a strong argument that the Claimants does not have any contractual entitlement to the same. During the trial hearing, Cathay Pacific's representative accepted that LDA and GDA are part of the Claimants' wages, although she maintained that they are not wages that the Claimants would have earned for the purpose of the old ss.41(1) and 41C(1) of EO. There is no provision in COS 1986 that provides for entitlement to LDA. Clause 5(A) of COS 1986 provides that Becky was entitled to Inflight Meal Compensation Allowance. Clause 5(B) of COS 1986 provides that Becky was entitled to Ground Allowance. Loosely speaking, since about 1988, the Inflight Meal Compensation Allowance and Ground Allowance have been replaced by LDA. Clause 5(A) of COS 1993 provides Vera’s entitlement to LDA. Details of when LDA is payable are set out in Clause 6 of the Operations Manual Volume 6, Part 1. Clause 3.2 of COS 2003 provides Jenny’s entitlement to GDA. +Details of when GDA is payable are set out in Clause 3.2(A) of COS 2003. After having carefully considered all evidence, I consider that Jenny receives GDA pursuant to Company Policies rather than Cathay Pacific’s discretion. On the whole, LDA and GDA are not of a gratuitous nature or payable only at Cathay Pacific's discretion. LDA and GDA represent a component in the Claimants' wages for work that they have done. In my view, it is indisputable that LDA and GDA are part of the Claimants' wages. The real issue is whether they are wages that the Claimants would have earned for the purpose of the old s.s41(1) and 41C(1) of the EO. LDA is paid on two scales that are LDA(A) and LDA(B). LDA(A) is payable for day turnaround and split duty flights at HK$60.5 per hour. LDA(B) is payable for all other flights at HK$15.125 per hour. Such division is again a deal struck between Cathay Pacific and FAU. Becky and Vera receive LDA on the total number of line duty hours that they operate in an aircraft. LDA is calculated based on the total number of line duty hours that starts when a cabin crew reports duty and finishes on blocks or engines off on the final sector. The duty hours start when the cabin crew reports duty and finishes 30 minutes after on blocks or engines off on final sector. The cabin crew will have a 30 minutes debriefing after the engines are off. Therefore, the line duty hours are 30 minutes less than the duty hours. LDA varies based on the flight that the cabin crew is rostered to operate and the length of time spent on a flight. LDA is calculated down to the minute. No two flights produce the same amount of LDA. There are various factors that affect +the number of the line duty hours of a flight and therefore LDA a cabin crew earns. These factors include weather, wind speed, location of the gate, delay or cancellation of flights etc. When a flight is cancelled due to adverse weather, the cabin crew will not earn any LDA even if she is rostered on a flight on that day. If the flight is delayed because of some technical problems, the line duty hours will be longer and the cabin crew will earn more LDA. The rate of GDA is HK$73.2 per hour. Jenny receives GDA on the total number of ground duty hours. Very rarely would two flights depart at the same time. Again, factors such as weather, delay or cancellation of flights etc affect the Departure Time of a flight and therefore the GDA a cabin crew earns. If a cabin crew reports for duty and the flight is subsequently cancelled due to adverse weather, the cabin crew will earn GDA for the period between the time she reports duty and the time Cathay Pacific announces that the flight is cancelled. The ground duty hours could be longer or shorter than the period between the time required to report duty and the scheduled departure time. If the flight is cancelled before the time required to for report duty, the cabin crew will not receive any GDA. If the flight is delayed because of, say, some technical problems, the ground duty hours will be longer and the cabin crew will receive more GDA. Some flights depart earlier than others. There is no certainty on the number of ground duty hours. A cabin crew will not earn any LDA or GDA if she reports +sick on a day that she is rostered with flying duties. Crew members may swap duties among themselves and Cathay Pacific has the right to alter, vary or substitute the roster issued to a crew, as it considers appropriate to meet its operational requirements. Cathay Pacific pays LDA and GDA monthly at the end of the following month. Cathay Pacific contends that LDA and GDA are not "wages" that the Claimants "would have earned", rather it is something that the Claimants "might have earned" because there is no certainty on the amount of LDA or GDA that the Claimants will earn each month; that both LDA and GDA are paid only if a cabin crew has performed flying duties and that the Claimants are not always assigned with flying duties. After having carefully considered all evidence, I accept that LDA and GDA should not be regarded as wages that would have earned for the purpose of ss.41(1) and 41C(1) of the old EO because there is no workable mode of calculation for working out the amount of LDA and GDA that the Claimants would have earned during the leave period. I now turn to the question on whether LDA and GDA should be included in the calculation of the ALP and SHP in accordance with the old ss.41(2) and 41C(2) of the EO. In Lam Pik Shan v. Hong Kong Wing On Travel Services Ltd., CACV 394/2007, unreported, 9 May 2008, the Court of Appeal upheld the decision of the High Court that tips received by the Plaintiff (Respondent), a travel escort, should be included in the calculation of ALP and SHP. In the paragraph (1) of the Judgment, Hon. Rogers VP held, +"In that judgment (Lisbeth Enterprises Ltd. v. Mandy Luk (2006) 9 HKFAR 131) the Court of Final Appeal came to the conclusion that the provisions in the Employment Ordinance, Cap. 57 relating to commission were unworkable where the commission was calculated at rates that varied on a monthly basis. That is not the situation in this case, which relates to tips which are based on a daily rate. In the second place it is quite clear that the legislature intended that tips should be taken into account in calculating wages. That is the clear intention emerging from the Ordinance itself. I am fortified in that conclusion because in passing the Employment (Amendment) Ordinance 2007, and in particular sections 10-15, the legislature has removed any difficulty there might be in making the relevant calculations. In the absence of the new provisions, had there some supposed difficulty in the method of calculation, it would have been the function of this court to give effect to the manifest intention of the legislature that tips should be taken into account in the calculation." In the following paragraphs, Hon. Le Pichon JA held, "20. Prima facie, tips received from tour participants would fall squarely within the statutory definition of "wages". The real question is whether a workable mode of calculation exists for working out the net tips and whether it can be said to accrue daily. 21. As already noted, the discretionary nature of tips is not a bar (as distinct from the case of commissions) to their forming part of an employee's wages. Further any discretion in the payment of a tip would be that of the tour participant and not employer i.e. the tour operator. While +the amount of tips received per month may vary, depending on a number of factors including the number of days spent escorting tours, the type of tour, the number of persons joining the tours etc., in the present case, these factors do not pose any particular difficulty in the way of calculating daily wages. Not only is the rate of recommended tips made on a per person per day basis, the tips the tour guide/escort had to defray in the foreign country are also expressed in a similar fashion. Even if the tour guide does not receive his tips until the end of the tour, given that the duration of the tour is a fixed number of days, the net tips per day can be said to "accrue" on a daily basis and are readily calculable on the same basis." Notably, in Lam Pik Shan v. Hong Kong Wing On travel Services Ltd, the travel escort, like Becky and Vera, received a monthly salary. In Lam Pik Shan v. Hong Kong Wing On Travel Services Ltd, the travel escort was paid tips that were based on a daily rate. In the present case, LDA and GDA are not calculated at daily rate. It seems to me that for the old ss.41(2) and 41C(2) of EO to apply, however, it is not necessary that the wages shall be calculated at daily rate. The old ss.41(2) and 41C(2) of EO apply where an employee is employed on piece rates or where the daily wages of an employee vary from day to day. I hold that LDA is part of Becky and Vera's wages and GDA is part of Jenny's wages. In my view, inasmuch as an employee's wages are calculable daily, the old ss.41(2) and 41C(2) of EO may apply. As Hon Le Pichon JA held, "The real question is whether a workable mode of calculation exists for working out … and whether it can be said to accrue daily". LDA and GDA are calculated by minutes. There should be no difficulty in calculating the LDA and GDA already earned by the Claimants on any +given day. Therefore, even if the Claimants do not receive LDA and GDA until the end of the next month, given that LDA and GDA is calculable daily and therefore can be said to accrue daily, in my view, they can be said to be daily wages that vary from day to day. In Wong Yin Fong & Others v. ISS Hong Kong Services Ltd [2005] 2 HKLRD 648, Labour Tribunal Appeal 56 of 2003, 17-19 May and 28 June 2005, Court of First Instance, J Lam J held, "99. Although there are differences between the statutory scheme for rest days and that for annual leave, I think it is equally plain from the statutory scheme as analyzed above that the protection conferred under Pt. VIIIA by way of annual leave is to protect employees from the evils of continuously working without proper opportunity to rest. The Legislature obviously considered that it is important that an employer (p.679) should give an employee proper rest by way of annual leave. This explains the mandatory nature of annual leave, see the observations of A Cheung J in para. 33 of his judgment in Laing & Others v. Lisbeth Enterprises Ltd [2004] 3 HKC 548. Given its paternalistic nature, the statutory scheme strives to achieve through s.41C that an employee will not suffer any accompanying economic loss for not working during the leave period." The above-mentioned Judgment was delivered before Lisbeth Enterprises Ltd v Mandy Luk [2006] 9 HKFAR 131. It is worthy of noting that when the case went further to the Court of Appeal, Wong Yin Fong & Others v. ISS Hong Kong Services Ltd [2008] 1 HKLRD 63, 28 November 2007, Court of Appeal, Hon Cheung JA said, "52. Wong Ping Kong and Lam J's decision in the first +instance on section 41C were referred to by the Court of Final Appeal in Lisbeth Enterprises Ltd v. Mandy Luk [2006] 9 HKCFAR 132. In my view the Court of Final Appeal not only has not disapproved of these two cases but has actually approved them." Taking that the legislative intention is to achieve through s.41C that employees will not suffer any accompanying economic loss for not working during the leave period, given that s.41 is parallel to s.41C at this end, I am satisfied that Cathay Pacific should include LDA and GDA in the calculation of the Claimants’ ALP and SHP by using the following formulas, in accordance with the old ss.41(2) and 41C(2) of EO : ALP - (Total LDA/GDA earned during the month immediately preceding or expiring on the first day of the annual leave or on the day on which the contract of employment terminates, as the case may be) ÷ (Number of working days during the same period) SHP – (Total LDA/GDA earned during the month immediately preceding or expiring on the holiday or first day of the holiday) ÷ (Number of working days during the same period) I reckon that probably the parties will propound different modes of calculation for working out the number of working days for the purpose of the formulas. Becky and Vera are monthly salaried while Jenny is hourly paid. Does it mean that the whole month immediately preceding or expiring on the holiday or first day of the leave (i.e. 30 or 31 days) should +be counted as working days of Becky and Vera? Further or in the alternative, should only the days on which the Claimants are required to perform duties (in air and on ground) be counted as working days; should only the days on which Becky and Vera are required to perform duties in air (but not on ground) be counted as their working days, as LDA is payable due to time in air; should only the days on which Jenny is required to perform duties on ground (but not in air) be counted as her working days, as GDA is payable due to time on ground preparing to fly; should the days during which the Claimants are put on Standby duties be counted as working days; should the days during which the Claimants are put on Stop over in outports be counted as working days; and/or should the days during which Jenny earns Work credits and Leave credits be counted as her working days, for the purpose of the formulas? The parties reserve their respective positions on these questions. I shall leave them to be dealt with when the question of quantum arises. In any case, once these questions are resolved, the parties will have no difficulty in working out the amount that Cathay Pacific is liable to pay in compensation to the Claimants. DFSC Cathay Pacific would assign hourly paid crew members to conduct inflight duty free sales. Once an hourly paid crew is assigned, she has no choice but to perform the same as part of her duties. The details of Duty Free Sales Commission (“DFSC”) are set out in Cathay Pacific's Inflight Sales Commission Policy. DFSC is separated into Individual Commission, Team Award, BC Star Award and ISM Star Award. Individual cabin crew earns a flat rate of 3.5% of sales +made by her. The commission is paid at the end of the following month. Team Award is given to the top team with the best inflight sales performance. Crew members of the top team receive gifts as prizes. BC Star Award is given to top performers. ISM Star Award is given to the top Inflight Services Managers. During the trial hearing, Cathay Pacific’s representative accepted that DFSC is part of Jenny's wages. After having carefully considered all evidence, I am satisfied that DFSC is not of a gratuitous nature or payable only at Cathay's discretion. I hold that DFSC represents a component in Jenny's wages for work that she has done and is part of her wages. Cathay Pacific contends that DFSC is not "wages" that Jenny "would have earned", rather it is something that Jenny "might have earned" because : (1) Some, but not all, of the flights have inflight sales. There is no certainty that Jenny will be rostered on a flight that has inflight sales; (2) Not all crew members are entitled as of right to earn DFSC. The computer may assign a crew to be responsible for inflight sales and the Inflight Service Manager can always assign another crew to perform inflight sales; (3) The entitlement to DFSC depends on the flight Jenny is rostered on and whether or not she is assigned with the inflight sales duty. After having carefully considered all evidence, I accept that +DFSC should not be regarded as wages that would have earned for the purpose of the old ss.41(1) and 41C(1) of the EO because there is no workable mode of calculation for working out the amount of DFSC that Jenny would have earned during the leave period. I now turn to the question on whether DFSC should be included in the calculation of the ALP and SHP in accordance with the old ss.41(2) and 41C(2) of the EO. In my view, inasmuch as an employee’s wages are calculable daily, the old ss.41(2) and 41C(2) of the old EO may apply. In Lisbeth Enterprises Ltd v Mandy Luk, the employee who worked in a health and beauty club was entitled not only to a monthly salary but also to a commission on sales made by her. The contractual commission was calculated on a monthly basis, payable according to fluctuating monthly results on a sliding scale. Jenny’s case is different from Lisbeth Enterprises Ltd v Mandy Luk in that Jenny receives DFSC on the flat rate of 3.5% of the sales made by her. The upshot is that there would be no difficulty in calculating the amount of DFSC already made by Jenny on any given day (disregarding the Team Award gifts, BC Star Award and ISM Star Award), and therefore it can be said to accrue daily. Even if the Claimants do not receive DFSC until the end of the next month, given that DFSC can be said to accrue daily, it is daily wages that vary from day to day. Further or alternatively, apparently Jenny is employed on piece rate when she performs the duty free sales duty. By reason of matters aforesaid, I hold that Cathay Pacific should include DFSC in the calculation of Jenny's ALP and SHP by using the following formulas, in accordance with the provisions of the old ss.41(2) and 41C(2) of the EO : ALP - (Total DFSC earned during the month immediately preceding or expiring on the first day of the annual leave or +on the day on which the contract of employment terminates, as the case may be) ÷ (Number of working days during the same period) SHP – (Total DFSC earned during the month immediately preceding or expiring on the holiday or first day of the holiday) ÷ (Number of working days during the same period) Again, I shall deal with those questions regarding the mode of calculation for working out the relevant number of working days for the purpose of the formulas when the question of quantum arises. Has Jenny received any SHP at all? Clause 2.4(3) of the COS 2003 provides :- "Days Without Duties The Days Without Duties will include any statutory holidays (or alternative holidays) and rest days, as the case may be, to which a Cabin Attendant is entitled under the Employment Ordinance. Clause 5.3 of the COS 2003 provides :- "Statutory Holidays and Rest Days Statutory holidays and rest days are allocated to Cabin Attendants as Days Without Duties (please refer to paragraph 2.4(3) of these COS, above.)" Cathay Pacific intimates that, in addition to the Days Without Duties, Cathay Pacific also uses Standby duties (Jenny earns 1 credit hour +for each 3 hours of Standby duties) to discharge its obligation to provide Jenny with statutory holidays under the EO. I do not agree. It is clear from the above-mentioned contractual provisions that Cathay Pacific uses Days Without Duties to discharge its obligation to provide Jenny with statutory holidays under the EO. Unlike to the other two Claimants who are monthly paid crew, Jenny's wages are calculated on the numbers of flying hours she is able to achieve on a monthly basis. Her salary structure is not governed by the Master Pay Scale like the monthly paid crew members do. She does not enjoy the benefit of automatic annual increment along the Master Pay Scale. Generally, Jenny is rostered to not less than the value of 70 hours of flying duties each month. If she wants to earn more, she may swap flights with colleagues to fly more, thus earning the extra flying hours which are all calculated on the basis of HK$146.4 per hour. In practice, Jenny swapped flights with colleagues to fly less, thus receiving only the MGFP in many months. Her wages are linked to performance of flying duties, Work Credits and Leave Credits. Therefore, Jenny contends that Cathay Pacific has not paid her any SHP at all. Cathay Pacific contends that according to Clause 3.1 of the COS 2003, Jenny receives a monthly salary that is, rather than a specified amount in her contract, calculated with reference to MGFP that is paid regardless of the work or duty she may or may not have undertaken or been assigned to her during the month; that MGFP is payable due to time on duty as well as time not on duty in the same way as a worker is paid a +basic monthly salary but may also be entitled to monthly overtime if she works extra hours in that month. Clause 3.1 of the COS 2003 provides that Jenny will receive salaries calculated on a monthly basis. Having salaries calculated on a monthly basis does not mean that she is monthly salaried. Employees employed at piece rate or hourly rate may receive salaries calculated on a monthly basis. In my view, the payment structure of Jenny plainly shows that she is an hourly paid employee. Cathay Pacific pays Jenny MGFP at the value of 70 Block Hours, as it assumes that a cabin crew works 85 credit hours (inclusive of Block Hours flown) and 25.5 ground duty hours each month. It demonstrates that the MGFP relates to crew members’ flying duties rather than the Days Without Duties. For example, when an hourly paid cabin crew performs more than 70 flying hours in a month, she is paid by the actual flying hours plus any credits earned. It means that she will not reap any benefit from the MGFP, notwithstanding that Cathay Pacific may well provide her with Days Without Duties in that month. An hourly paid cabin crew is not paid for those Days Without Duties that coincide with the statutory holidays. In other words, in a month if there is a statutory holiday, she is still paid 70 flying hours plus the extra flying hours she has performed (if any) without any SHP. In my view, the corollary is that she does not receive any SHP. One can educe from Jenny’s salary structure that she does not +receive any payment for the Days Without Duties. In so far as Cathay Pacific uses Days Without Duties to discharge its obligation to provide Jenny with statutory holidays under the EO, Jenny does not receive any SHP. Ordinary Wages Prior to the amendments introduced by the EAO, s.42 of the EO provides :- "42 Ordinary wages instead of holiday pay, annual leave pay, maternity leave pay or sickness allowance Where, pursuant to the terms of his contract of employment or the terms of any other agreement or for any other reason, an employee is paid his ordinary wages in respect of any holidays, annual eave, maternity leave or sickness day, the employee shall not, in addition to such ordinary wages, be entitled to be paid holidays pay, annual leave pay, maternity leave pay or sickness allowance, as the case may be." The EAO repealed s.42 of EO. Cathay Pacific contends that the Claimants' monthly basic salary, together with other regular fixed monthly allowance, represents their "ordinary wages" for the purposes of s.42 of the EO. Mr Justice Rogers VP held at paragraph 21 of Lam Pik Shan v. Hong Kong Wing On Travel Services Ltd, "21. As regards section 42 of the Ordinance, I see no +basis for restricting the meaning of "ordinary wages" to the bare, almost notional, payment under clause 7 of the agreement. In my view "ordinary wages" has no other meaning than "wages" as used in the Ordinance." Such view was echoed by the Honorable Mr. Justice Cheung JA in Fong Mung Yan v. ISS Hong Kong Service Limited, at paragraph 49 where the learned Judge said, "49. In my view section 42 does not assist the Defendant. This section merely prevents the worker from receiving a double benefit. It provides no answer to the question whether wages include attendance bonus. In my view there is no distinction between the term "wages" as defined by section 2(1) and ''ordinary wages' referred to in section 42." I hold that s.42 of does not assist Cathay Pacific. S.40 of the EO In relation to the payment of SHP, s.40 of the EO provides : "40. Payment of holiday pay Subject to section 12(11), an employee who has been employed by his employer under a continuous contract for a period of 3 months immediately preceding a statutory holiday shall, not later than the day on which the employee is next paid his wages after that holiday, be paid by his employer holiday pay at the rate specified in section 41, whether the employee takes a holiday on the statutory holiday or on an alternative or substituted holiday or a holiday +under section 39(4)." This section is applicable both prior to and after the introduction of the EAO. Cathay Pacific contends that by virtue of the provisions of s.40, to the extent that the Claimants worked on a statutory holiday, the wages paid to them in respect of that statutory holiday (which she worked) constitute their full entitlement under the EO in respect of that statutory holiday. In these circumstances, the Claimants will have received the amount they "would have earned" on the statutory holiday. In effect, Cathay Pacific rigidly construes "that holiday" referred to in s.40 as the statutory holiday. In my view, "that holiday" plainly means the holiday actually taken by the employee, whether the employee takes a holiday on the statutory holiday or on an alternative or substituted holiday or a holiday under s.39(4). Were Cathay Pacific's construction acceptable, an employer would have no obligation under the EO to pay SHP in respect of an alternative or substituted holiday. That must be wrong. Contractual Annual Leave Pay Clause 16(A) of the COS 1986 provides :- "Annual Leave – Cabin crew will be granted three weeks’ paid leave per year. In the first year cabin crew do not qualify for annual leave until they have completed nine months’ service. After completing five years of service, cabin crew will be granted four weeks’ paid leave per year. After completing ten years of service, cabin crew will be +granted five weeks’ paid leave per year." Clause 12(A) of the COS 1993 provides :- "Annual Leave – Cabin Attendants will be granted three weeks’ paid leave per year. In the first year Cabin Attendants do not qualify for annual leave until they have completed probation. After completing five years of service, Cabin Attendants will be granted four weeks’ paid leave per year. After completing ten years of service, Cabin Attendants will be granted five weeks’ paid leave per year. Leave shall be taken in accordance with the leave roster system established by the Company. The taking of leave will be subject to the exigencies of service as determined by the Company. " Clause 5.1 of the COS 2003 provides :- "Annual Leave The Company operates a common leave year from 1 January to 31 December. Cabin Attendants are eligible to apply for and take annual leave in accordance with Company Policies. Annual leave will be granted subject to the needs of the Company, determined in its discretion from time to time. A Cabin Attendant is expected to take all annual leave within the current leave. Annual leave cannot be carried forward without prior written approval of the Company. Advance annual leave may be granted at the Company’s sole discretion. If granted, the Cabin Attendant’s annual leave entitlement for the ensuing period will be adjusted accordingly. If, upon leaving the employment of the Company, a Cabin Attendant has taken annual leave in excess of the Cabin Attendant’s pro-rata annual leave entitlement, calculated +to cessation of employment, the final payment made to the Cabin Attendant will be adjusted accordingly." The Company Policy provides Jenny’s AL entitlement as follows :- "Cabin crew who join on or after 01 September 1996: Flight Attendant or Flight Purser with less than 5 years of service as cabin crew, 21 days of leave entitlement Flight Attendant or Flight Purser with more than 5 years of service as cabin crew, 24 days of leave entitlement Senior Purser or Inflight Service Manager, 28 days of leave entitlement" Section 2 of the EO provides that "annual leave" means the annual leave provided for in Part VIIIA and "annual leave pay" means the annual leave pay required by the EO to be paid in respect of a period of annual leave provided for in Part VIIIA in respect of a period of annual leave required to be paid under section 41D. Therefore, Cathay Pacific contends that the provisions in the EO relation to annual leave and annual leave pay are applicable only to statutory annual leave (a maximum of 14 days); that the statutory provisions do not apply to leave granted by an employer in excess of the statutory annual leave and that leave granted in excess of the statutory requirement. In other words, contractual annual leave, including the taking and the payment of such leave, is therefore governed solely by the terms of the relevant employment contract, which fall to be interpreted and construed in accordance with general contractual principles. Cathay Pacific contends that on the basis of general +contractual principles of construction and on the basis of plain common sense, the expression "paid leave" means leave of absence from work with the payment of basic salary and those allowances to which a cabin attendant is entitled by virtue of his or her position i.e. title and appointment allowances, but excluding allowances which arise by virtue of the actual performance of in flight or other specific duties, such as OA, LDA and GDA and which plainly do not arise at all during periods of leave. I accept that the Claimants' contractual AL is governed by the terms of the employment contract. The COS are drafted in details. Upon reading the relevant provisions of the COS, I observe that they do not make any distinction between a cabin crew's statutory and contractual annual leave payment. In practice, there is no way to tell when the Claimants take AL, whether they are on the statutory or contractual AL. As a matter of construction of the employment contract, I take the starting point that the calculation of the ALP regarding all AL provided by the employment contract is equal. In Wong Yin Fong & others v. ISS Hong Kong Services Ltd, J Lam J held that "Given its paternalistic nature, the statutory scheme strives to achieve through s.41C that an employee will not suffer any accompanying economic loss for not working during the leave period". In the present case, Cathay Pacific takes into account of the numbers of days of AL taken by Becky and Vera to calculate their Excess Flying Pay ("EFP") (See Clause 6 of COS 1986 and Clause 5 of COS 1993 for EFP’s meaning). Jenny's situation is similar. Cathay Pacific takes into account the number of hours flown as well as credits earned by reasons of leave (including AL) to calculate MGFP and Jenny's wages. Jenny earns +3.25 leave credits per day of AL. Such arrangements suggest that the parties are also prepared to make provision for making up a cabin crew’s accompanying economic loss for not working during the leave period. Conversely, Cathay Pacific contends that on the basis of plain common sense, allowances that arise by virtue of the actual performance of duties such as LDA and GDA should be excluded in calculating ALP and SHP. Courts will imply terms into individual contracts on the ground of business efficacy but it is nothing to do with making things reasonable or fair. All in all, I am not persuaded by Cathay Pacific's common sense approach. After having carefully considered all evidence, I take the view that there is no contractual basis to calculate the ALP attributable to the statutory and contractual AL differently. Conclusion I hold that Jenny is hourly paid. Therefore, she is employed on daily wages that vary from day to day. In accordance with the old s.41(2) of EO, her holiday pay shall be a sum equivalent to the average of the daily wages earned by her on each day on which she worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the holiday or first day of the holiday. In my view, she does not receive any SHP. In accordance with the old s.41C(2) of EO, her annual leave pay shall be calculated by reference to the average of the daily wages earned by her on each day on which she worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the first day of the annual leave or on the day on which the contract of employment terminates, as the case may be. Account will be taken into ALP that were already paid by Cathay Pacific. +In conclusion, I hold that Cathay Pacific should calculate and pay Becky and Vera shortfalls in the amounts of ALP and SHP in the manners as set out in the above paragraph 102 and should calculate and pay Jenny shortfalls in the amounts of ALP and SHP in the manners as set out in the above paragraphs 102, 108 and 140, but it is not required to include OA in the calculation of ALP and SHP. The parties shall make arrangements with the case Tribunal Officer for the purpose of fixing a mutually convenient date for a mention hearing on the question of quantum. Costs reserved.  (K.K. PANG) Deputy Presiding Officer   + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/en_cases_hklat/2009_HKLaT_1/case.json b/en_cases_hklat/2009_HKLaT_1/case.json new file mode 100644 index 0000000..bd1c43f --- /dev/null +++ b/en_cases_hklat/2009_HKLaT_1/case.json @@ -0,0 +1,32 @@ +{ + "Date": "12 Jan, 2009", + "Action No.": "LBTC2827/2008", + "Neutral Cit.": "[2009] HKLaT 1", + "case_title": "KWAN SIU WA BECKY V. CATHAY PACIFIC AIRWAYS LIMITED", + "page_title": "KWAN SIU WA BECKY V. CATHAY PACIFIC AIRWAYS LIMITED | [2009] HKLaT 1 | HKLII", + "case_history": [ + { + "name": "LBTC2827/2008", + "link": "https://www.hklii.hk/en/appealhistory/LBTC/2008/2827" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hklat/2009/1", + "neutral_cit": "[2009] HKLaT 1", + "court_code": "HKLAT", + "content": "LBTC 2827/2008\nIN THE LABOUR TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCLAIM NO. LBTC 2827/2008, 2828/2008 & 2829/2008\n__________________________________\nBETWEEN\nLBTC 2827/2008\nKWAN SIU WA BECKY\nCLAIMANTS\nLBTC 2828/2008\nWU YEE MEI VERA\nLBTC 2829/2008\nHO KIT MAN JENNY\nand\nCATHAY PACIFIC AIRWAYS LIMITED\nDEFENDANT\n__________________________________\nCoram: Pang Ka Kwong, Deputy Presiding Officer\nDate of Trial: 22, 23 & 24 December 2008, 12 January 2009\nDate of Decision on Liability: 12 January 2009\nDate of Reasons for Decision on Liability: 12 January 2009\nDate of Corrigendum:  22 January 2009\n__________________________________\nCORRIGENDUM\nThe quoted provisions of ss.41 and 41C of the Employment (Amendment) Ordinance on pp. 12-15 should be amended as shown in red in the Attachment to this Corrigendum.\n(Yau Wai-yuen)\nClerk to Pang Ka Kwong, Deputy Presiding Officer\nhe worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the first day of the annual leave or on the day on which the contract of employment terminates, as the case may be.\"\n33.  Following the introduction of the EAO, the provisions for calculating SHP and ALP are :-\n(i)\nSHP\n\"\n41. Rate of Holiday pay\n(1) For the purposes of subsections (2), \n (3) and (4), \"wages\"(工資) includes any sum paid by an employer in respect \n of -\n(a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee;\n(b) a day of leave taken by the employee with the agreement of his employer;\n(c) a normal working day on which the employee is not provided with work;\n(d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap\n.\n282).\n(2) The daily rate of holiday pay is a sum equivalent to the daily average of the wages earned by the employee during -\n(a)\na\nthe\nperiod of 12 months immediately before the holiday or first day of the holidays \n (as appropriate); or\n(b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the holiday or first day of the holidays (as appropriate), the shorter period.\n(3) In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period -\n(a) any period therein for which the employee was not paid his wages or full wages by reason of -\n(i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee;\n(ii) any leave taken by the employee with the agreement of his employer;\n(iii) his not being provided by his employer with work on any normal working day; or\n(iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap\n.\n282); and\n(b) any wages paid to him for the period referred to in paragraph (a)\n.\n,\nare to be disregarded.\n(4) For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a\nfraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (3).\n…..\"\n(ii)\nALP\n\"\n41C Rate of annual leave pay\n(1) For the purposes of subsections (2), (3) and (4), \"wages\"(\n工資) includes any sum paid by an employer in respect of -\n(a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee;\n(b) a day of leave taken by the employee with the agreement of his employer;\n(c) a normal working day on which the employee is not provided with work;\n(d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap\n.\n282).\n(2) The daily rate of\nholiday\nannual leave\npay is a sum equivalent to the daily average of the wages earned by the employee during -\n(a)\na\nthe\nperiod of 12 months immediately before the\nholiday\nday of annual leave,\nor\nthe\nfirst day of the\nholidays\nannual leave or the date of termination of the contract of employment\n(as appropriate); or\n(b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the\nholiday\nday of annual leave,\nor\nthe\nfirst day of the\nholidays\nannual leave or the date of termination of the contract\n(as appropriate), the shorter period.\n(3) In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period -\n(a) any period therein for which the employee was not paid his wages or full wages by reason of -\n(i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee;\n(ii) any leave taken by the employee with the agreement of his employer;\n(iii) his not being provided by his employer with work on any normal working day; or\n(iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap\n.\n282); and\n(b) any wages paid to him for the period referred to in paragraph (a)\n.\n,\nare to be disregarded.\n(4) For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a fraction of the amount earned by the employee", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2008/LBTC002827_2008.doc", + "file_name": "LBTC002827_2008.doc", + "file_ext": ".doc", + "status": "success" + }, + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2008/LBTC002827M_2008.doc", + "file_name": "LBTC002827M_2008.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hklat/2009_HKLaT_2/LBTC002828M_2008_abp_fallback.txt b/en_cases_hklat/2009_HKLaT_2/LBTC002828M_2008_abp_fallback.txt new file mode 100644 index 0000000..1ca96eb --- /dev/null +++ b/en_cases_hklat/2009_HKLaT_2/LBTC002828M_2008_abp_fallback.txt @@ -0,0 +1,8 @@ +LBTC 2828/2008 IN THE LABOUR TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CLAIM NO. LBTC 2827/2008, 2828/2008 & 2829/2008 __________________________________ BETWEEN LBTC 2827/2008 LBTC 2828/2008 LBTC 2829/2008 KWAN SIU WA BECKY WU YEE MEI VERA HO KIT MAN JENNY CLAIMANTS   and    CATHAY PACIFIC AIRWAYS LIMITED DEFENDANT   __________________________________ Coram: Pang Ka Kwong, Deputy Presiding Officer Date of Trial: 22, 23 & 24 December 2008, 12 January 2009 Date of Decision on Liability: 12 January 2009 Date of Reasons for Decision on Liability: 12 January 2009 Date of Corrigendum: 22 January 2009 __________________________________ CORRIGENDUM The quoted provisions of ss.41 and 41C of the Employment (Amendment) Ordinance on pp. 12-15 should be amended as shown in red in the Attachment to this Corrigendum. + (Yau Wai-yuen) Clerk to Pang Ka Kwong, Deputy Presiding Officer + he worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the first day of the annual leave or on the day on which the contract of employment terminates, as the case may be." 33. Following the introduction of the EAO, the provisions for calculating SHP and ALP are :- (i) SHP "41. Rate of Holiday pay (1) For the purposes of subsections (2), (3) and (4), "wages"(工資) includes any sum paid by an employer in respect of - (a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; (b) a day of leave taken by the employee with the agreement of his employer; (c) a normal working day on which the employee is not provided with work; (d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap. 282). (2) The daily rate of holiday pay is a sum equivalent to the daily average of the wages earned by the employee during - (a) the period of 12 months immediately before the holiday or first day of the holidays (as appropriate); or +(b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the holiday or first day of the holidays (as appropriate), the shorter period. (3) In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period - (a) any period therein for which the employee was not paid his wages or full wages by reason of - (i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee; (ii) any leave taken by the employee with the agreement of his employer; (iii) his not being provided by his employer with work on any normal working day; or (iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap. 282); and (b) any wages paid to him for the period referred to in paragraph (a), are to be disregarded. (4) For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a +fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (3). ….." (ii) ALP "41C Rate of annual leave pay (1) For the purposes of subsections (2), (3) and (4), "wages"(工資) includes any sum paid by an employer in respect of - (a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; (b) a day of leave taken by the employee with the agreement of his employer; (c) a normal working day on which the employee is not provided with work; (d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap. 282). (2) The daily rate of annual leave pay is a sum equivalent to the daily average of the wages earned by the employee during - (a) the period of 12 months immediately before the day of annual leave, the first day of the annual leave or the date of termination of the contract of employment (as appropriate); or (b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the +day of annual leave, the first day of the annual leave or the date of termination of the contract (as appropriate), the shorter period. (3) In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period - (a) any period therein for which the employee was not paid his wages or full wages by reason of - (i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee; (ii) any leave taken by the employee with the agreement of his employer; (iii) his not being provided by his employer with work on any normal working day; or (iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap. 282); and (b) any wages paid to him for the period referred to in paragraph (a), are to be disregarded. (4) For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a fraction of the amount earned by the employee + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/en_cases_hklat/2009_HKLaT_2/LBTC002828_2008_abp_fallback.txt b/en_cases_hklat/2009_HKLaT_2/LBTC002828_2008_abp_fallback.txt new file mode 100644 index 0000000..748a1f6 --- /dev/null +++ b/en_cases_hklat/2009_HKLaT_2/LBTC002828_2008_abp_fallback.txt @@ -0,0 +1,51 @@ +LBTC 2828/2008 IN THE LABOUR TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CLAIM NO. LBTC 2827/2008, 2828/2008 & 2829/2008 __________________________________ BETWEEN LBTC 2827/2008 LBTC 2828/2008 LBTC 2829/2008 KWAN SIU WA BECKY WU YEE MEI VERA HO KIT MAN JENNY CLAIMANTS   and    CATHAY PACIFIC AIRWAYS LIMITED DEFENDANT   __________________________________ Coram: Pang Ka Kwong, Esq., Deputy Presiding Officer Date of Trial: 22, 23 & 24 December 2008, 12 January 2009 Date of Decision on Liability: 12 January 2009 Date of Reasons for Decision on Liability: 12 January2009 __________________________________ Reasons for Decision on Liability The trial proceedings use the Chinese language. The parties agree that I can deliver this Reasons for Decision on Liability in the English language. The parties reserve their respective positions on quantum. +Under paragraph (a) 1 of the Claimants’ respective Form 2, the Claimants stated that their grounds for the claims include :- (a) “Failure to grant statutory holidays” (b) “Failure to grant annual leaves”. The Claimants do not pursue the claims under paragraph (a) 1. Claim The present claims are for "shortfalls" in the amounts of Statutory Holiday Pay ("SHP") and Annual Leave Pay ("ALP") that were paid by Cathay Pacific, such shortfalls allegedly arising from the non-inclusion of Line Duty Allowance ("LDA"), Outport Allowance ("OA"), Ground Duty Allowance ("GDA") and Duty Free Sales Commission ("DFSC") in calculating SHP and ALP. In material, there is no dispute on the background facts of the cases. Kwan Siu Wa Becky ("Becky") By a letter of appointment dated 20th September 1975, Becky joined Cathay Pacific as a Junior Flight Hostess of the cabin crew. She was promoted to the post of Chief Purser L1011 on 18th September 1987. The post was retitled to Inflight Service Manager on 1st April 1999 and she remains in the same position to date. She is required to perform duties in air and on ground as Cathay Pacific directs. Becky is a monthly paid cabin crew. She receives a basic salary and title allowance of HK$23,883 and HK$11,501 respectively +each month. In addition, she receives various allowances such as LDA and OA. By 2002 Becky has served Cathay Pacific for more than 10 years and therefore she is entitled to 5 weeks' paid annual leave and 94 Guaranteed Days Off ("GDOs") each year. Additionally, Cathay Pacific provides Becky with the following days without work :- (a) Short Break - A period, at or away from base, of at least 34 hours and including 2 local nights during which a crew members are not required to perform any duty. (b) Stop over in outports - A period commencing after the scheduled arrival time of crew at an outport until 60 minutes before the scheduled departure time. Crew members are not required to perform any duty during the stop over. (c) Standby duty also known as reserve duty (without being called out) – Crew members are scheduled for standby duty period specified on the front sheet of the roster. The actual period scheduled varies from roster to roster. Crew members will be notified within their standby period to operate a flight if it is required. (d) Guaranteed Days Off ("GDOs") - these are essentially days without work and are further explained below. Clause 16(C) of Conditions of Service 1986 (“COS 1986”) provides :- +"Guaranteed Days Off (GDO) - the annual GDO count for cabin crew on line flying will be based on two days off per week less the period of the cabin crew member's annual leave entitlement, i.e. those cabin crew entitled to three weeks annual leave per year will be entitled to 98 GDO's, those cabin crew with four weeks annual leave per year will be entitled to 96 GDO's and those cabin crew entitled to five weeks annual leave will be entitled to 94 GDO's. Cabin crew required to operate on a 'G' day will be given the option of having another 'G' day at a mutually convenient time or payment at the rate of HK$40 per flying hour for the duration of the flight. Such payment will be made only for the first 24 hours involved. If payment is made then these GDOs will be deducted from the annual GDO entitlement. Rules contained in Operations Manual. Volume 1 Part 2 will apply." Wu Yee Mei Vera ("Vera") By a letter of appointment, dated 12th June 1995, Vera joined Cathay Pacific as a cabin attendant. She was promoted to the post of purser on 1st December 2000 and remains in the same position to date. She is required to perform duties in air and on ground as Cathay Pacific directs. Vera is a monthly paid cabin crew. She receives a basic salary and title allowance of HK$20,139 and HK$2,370 respectively each month. In addition, she receives various allowances such as LDA and OA. + Between June 1995 and May 2000, Vera is entitled to 3 weeks' paid annual leave and 98 GDOs each year. Between June 2000 and May 2005, she is entitled to 4 weeks' paid annual leave and 96 GDOs each year. By June 2005, she is entitled to 5 weeks' paid annual leave and 94 GDOs each year. Additionally, Cathay Pacific provides Vera with the following days without work :- (a) Short Break; (b) Stop over in outports; (c) Standby duty also known as reserve duty (without being called out); (d) Guaranteed Days Off ("GDOs") (see explanation below). Clause 13(b) of Conditions of Service 1993 (“COS 1993”) provides :- "Those Cabin Attendants entitled to three weeks annual leave per year will be entitled to 98 GDOs, those Cabin Attendants entitled to four weeks annual leave per year will be entitled to 96 GDOs and those Cabin Attendants entitled to five weeks annual leave will be entitled to 94 GDOs. In any of the above case, the number of GDOs granted includes days off in lieu of the statutory holidays to which a Cabin Attendant would otherwise be entitled pursuant to the Employment Ordinance of Hong Kong" The details of the Short Break, Stop over in outports, Standby duty also known as reserve duty and GDOs are the same in Vera's case as +in Becky's case. Ho Kit Man Jenny ("Jenny") By a letter of appointment, dated 19th January 2005, Jenny joined Cathay Pacific as a Flight Attendant of the Inflight Services Department and she remains in the same position to date. She is required to perform duties in air and on ground as Cathay Pacific directs. Cathay Pacific pays Jenny Minimum Guaranteed Flying Pay ("MGFP") at the value of 70 Block Hours (see explanation below) i.e. 70 hours X HK$146.4 per hour = HK$10,248 per month. The payment structure of Jenny is set out in Clause 3 of the COS 2003, Clause 3.1 of which provides :- "Salary Cabin Attendants will (subject to any provisions stated in the Letter as to probation or otherwise) receive a salary calculated on a monthly basis. Salary will be calculated with reference to the Minimum Guaranteed Flying Pay. If the total value of a Cabin Attendant's Block Hours and Credits in the relevant month exceeds the Minimum Guaranteed Flying Pay, he or she will receive a salary calculated by reference to the actual Block Hours flown and Credits earned in that month. The applicable payment rate of a Block Hour, and the number of Block Hours assigned to Cabin Attendants, will be determined by the Company from time to time and notified to the Cabin Attendant. For the purposes of these COS: +Block Hours are the hours between Departure Time and Arrival Time (or otherwise, as amended or determined by the Company in its absolute discretion from time to time). Credits comprise : (i) Work Credits : these are credits received for absences from flight duties by reason of, for example, Reserve Duty or Special Duties; and (ii) Leave Credits : these are credits received for absences from flight duties by reason of leave. Leave Credits may include payment additional to the paid time off that a Cabin Attendant receives as such leave pursuant to these COS. (However, for the avoidance of doubt, the Company's use of a formula which records Leave Credits for the purpose of computation of salary does not create any entitlement to payment additional to the actual paid time off taken, except and to the extent determined by the Company from time to time.) The type and value of credits available to Cabin Attendants will be determined by the Company and notified to the Cabin Attendants, from time to time, having regard to relevant Company Policies." Credits that Jenny may earn include :- (i) Work Credits : Jenny earns credits for absences from flight duties by reason of :- Training - 4.65 credit hours for each calendar day of training; Special duties - 4.65 credit hours for each +calendar day of special duties; Standby duties - 1 credit hour for each 3 hours of standby duties; Duty travel - 0.5 credit hour for each 1 hour of duty travel. (ii) Leave credits : Jenny earns 3.25 credit hours for each day of leave taken. The credit of 3.25 block hours for each day of leave is calculated by reference to the following mathematical formula. Cathay Pacific assumes that a cabin crew works 85 credit hours (inclusive of Block Hours flown) and 25.5 ground duty hours (see explanation in paragraph 83 below) each month. Ground duty hours worth 50% of Block Hours. Therefore, total monthly credit hours for such crew member are :- 85 + (25.5 ÷ 2) = 97.75 This figures is then averaged over 30 days to give a standard credit of 3.25 block hours for each day of leave taken. In addition, Jenny receives various allowances such as OA, GDA and DFSC. Jenny does not receive LDA, whilst Becky and Vera do not receive GDA or DFSC. With less than 5 years’ service, she is entitled to 21 days' paid annual leave. Additionally, Cathay Pacific provides Jenny with the following days without work :- +(a) Short Break (b) Stop over in outports (c) Standby duty also known as reserve duty (without being called out) (d) Days Without Duties - see explanation below. The details of Short Break, Stop over in outports and Standby duty are the same in Jenny’s case as in Vera and Becky’s case. Clause 2.4(3) of the Conditions of Service 2003 (“COS 2003”) provides :- "Days Without Duties The company will periodically issue rosters for Cabin Attendant Days Without Duties. These rosters will apply for the stated time period. The Days Without Duties will include any statutory holidays (or alternative holidays) and rest days, as the case may be, to which a Cabin Attendant is entitled under the Employment Ordinance. For operational reasons, the Company reserves the right to require Cabin Attendants to work on any Day Without Duties subject to and in accordance with the provisions of the Employment Ordinance." The Issues Despite that Becky and Vera are employed under different COS, they are in the same position for the purpose of the present claims. They contend that Cathay Pacific should include OA and LDA in the calculation of their ALP and SHP in accordance with the old ss.41 and 41C of the Employment Ordinance (“EO”). Jenny contends that Cathay +Pacific should include OA, GDA and DFSC in the calculation of her ALP and SHP in accordance with the old ss.41 and 41C of EO. Jenny also contends that as she is hourly paid, Cathay Pacific has not paid her any SHP on her statutory holidays. Cathay Pacific denies that OA, LDA, GDA and DFSC are required to be included in the calculation of SHP and ALP. Cathay Pacific also contends that Jenny is paid a monthly salary that is calculated with reference to the MGFP and, therefore, it has already paid Jenny’s SHP. The Employment Ordinance ("EO") The following provisions are relevant to the present claims : “2. Interpretation (1) In this Ordinance, unless the context otherwise requires "wages"(工資), subject to subsections (2) and (3), means all remuneration, earnings, allowances including traveling allowances and attendance allowances, attendance bonus, commission, overtime pay, tips and service charges, however designated or calculated, capable of being expressed in terms of money, payable to an employee in respect of work done or to be done under his contract of employment, but does not include (d) any sum payable to the employee to defray special expenses incurred by him by the nature of his employment;” +The old s.41 of the EO (prior to the changes introduced by the Employment (Amendment) Ordinance ("EAO") in July 2007) provides : "41 Rate of Holiday Pay (1) Holiday pay shall be a sum equivalent to the wages which the employee would have earned on a full working day. (2) Notwithstanding subsection (1), where an employee is employed on piece rates or where the daily wages of an employee vary from day to day, the holiday pay shall be a sum equivalent to the average daily wage earned by the employee, and for the purposes of this subsection the average daily wage shall be the average of the daily wages earned by the employee on each day on which he worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the holiday or first day of the holiday." The old s.41C of EO (prior to the changes introduced by the EAO) provides : "41C. Rate of Annual LeavePay (1) Annual leave pay shall, subject to subsection (2), be a sum equivalent to the wages which the employee would have earned if he had worked every day during the period of annual leave. Where an employee is employed on piece rates or where the wages of an employee vary from +day to day, the annual leave pay shall be calculated by reference to the average daily wage earned by the employee, and for the purposes of this subsection the average daily wage shall be the average of the daily wages earned by the employee on each day on which he worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the first day of the annual leave or on the day on which the contract of employment terminates, as the case may be." Following the introduction of the EAO, the provisions for calculating SHP and ALP are :- (i) SHP "41. Rate of Holiday pay (1) For the purposes of subsections (2), (3) and (4), "wages"(工資) includes any sum paid by an employer in respect of - (a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; (b) a day of leave taken by the employee with the agreement of his employer; (c) a normal working day on which the employee is not provided with work; (d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap 282). +(2) The daily rate of holiday pay is a sum equivalent to the daily average of the wages earned by the employee during - (a) a period of 12 months immediately before the holiday or first day of the holidays (as appropriate); or (b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the holiday or first day of the holidays (as appropriate), the shorter period. (3) In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period - (a) any period therein for which the employee was not paid his wages or full wages by reason of - (i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee; (ii) any leave taken by the employee with the agreement of his employer; (iii) his not being provided by his employer with work on any normal working day; or (iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap 282); and (b) any wages paid to him for the period +referred to in paragraph (a). (4) For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (3). ….." (ii) ALP "41C Rate of annual leave pay (1) For the purposes of subsections (2), (3) and (4), "wages"(工資) includes any sum paid by an employer in respect of - (a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; (b) a day of leave taken by the employee with the agreement of his employer; (c) a normal working day on which the employee is not provided with work; (d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap 282). (2) The daily rate of holiday pay is a sum equivalent to the daily average of the wages earned by the employee during - (a) a period of 12 months immediately before the holiday or first day of the holidays (as appropriate); or +(b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the holiday or first day of the holidays (as appropriate), the shorter period. (3) In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period - (a) any period therein for which the employee was not paid his wages or full wages by reason of - (i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee; (ii) any leave taken by the employee with the agreement of his employer; (iii) his not being provided by his employer with work on any normal working day; or (iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap 282); and (b) any wages paid to him for the period referred to in paragraph (a). (4) For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a fraction of the amount earned by the employee +on a normal working day, the wages and the day are to be disregarded in accordance with subsection (3). ….." The EAO Since the EAO takes effect, Cathay Pacific has included LDA, GDA and DFSC in calculating SHP and ALP. OA is not included in the calculation of SHP and ALP even after the introduction of the EAO. Analysis and Findings OA Becky is employed under Conditions of Service 1986 ("COS 1986"). Clause 5(C) of COS 1986 provides : Outport Allowance "Overnight, meal and laundry allowances will be paid in accordance with the rates laid down in Operations Manual, Volume 1, Part 4." OA is known as "Overnight allowances" in Operations Manual, Volume 1, Part 4, which provides (among other things) : "Overnight allowances are reviewed bi-annually and on any change of hotel. They are intended to cover reasonable out-of-pocket expenses. Vera is employed under Conditions of Service 1993 ("COS 1993"). + Clause 15(ii) of the COS 1993 provides, "Whilst Cabin Attendants are on duty in outports, they will receive overnight, meal and laundry allowances in accordance with the policy and rates laid down in Operations Manual, Vol. 1 Part 2 and 4 as amended from time to time and/or such other allowances or meal arrangements a published from time to time. Jenny is employed under Conditions of Service 2003 ("COS 2003"). Clause 1.3 of the COS 2003 provides :- "In addition to the duties and obligations set out in these COS, the Cabin Attendant is also required to comply with Company Policies." Clause 4.1 of the COS 2003 provides :- "4.1 Outport facilities and reimbursement Subject to Company Policies in force from time to time, a Cabin Attendant who is required to stay at an Outport between flying duties may be provided: (i) rest facilities and accommodation; and (ii) reimbursement of expenses for necessary meals and other expenditure incurred during the stay. 4.2 Other benefits A Cabin Attendant may be entitled or eligible to receive other benefits offered or provided by the Company in accordance with the relevant Company Policies." +Clause 10 of the COS 2003 provides that "Company Policies" means :- "the provisions of that document produced by the Company entitled the Operations Manual, as in force from time to time, and any other policies, schemes, rules and regulations relating to or arising from employment which may be issued, and amended or varied by the Company in its discretion from time to time. Such Operations Manual, policies, schemes, rules and regulations are collectively referred to in these COS as "Company Policies", and references in these COS to Company Policies shall where the context permits be construed accordingly." Clause 5.1 of the Operations Manual, Volume 6, Part 1 provides :- "At each outport a schedule of meal and overnight allowance has been established. These allowances are reviewed bi-annually in order to meet price changes. The allowances are intended to meet reasonable costs. Upon arrival at an outport where a stopover is scheduled crew members will be issued with the cash allowance by the hotel in accordance with the schedule, and based on a telex from Crew Control." Although their entitlement is arising from difference contractual provisions, the details of OA are the same in all Claimants’ case. OA is calculated by reference to a formula agreed with the Fight Attendants Union (“FAU”) that takes account of the actual cost of meals and services at the relevant crew hotel. The amount of each item +of OA is determined by reference to the costs in the designated crew hotel in each port. In practice, reviews of the allowance are held twice a year and adjustments will also be made whenever there is a change in crew hotel. The allowance may decrease as well as increase. OA includes :- meal allowance; allowance in case of delayed and rescheduled flight; incidental allowance ("IA"); laundry allowance; duty travel expenses and management crew allowance; taxi allowance; and Indian port allowance. Meal allowance will be paid if crew members are rostered on flight that requires a stopover at an outport that exceeds 2 hours and the stopover includes any part of the following period : (i) Breakfast - 0600 to 0859; (ii) Lunch - 1200 to 1359; (iii) Dinner - 1800 to 2159. When the stopover time falls between 0600-0859 of the local time, crew members will be paid an amount in respect of breakfast. The calculation is based on the hotel coffee shop prices for full American breakfast consists of fruit juice, two eggs with ham or bacon or sausage, toast with jam or marmalade and coffee, or the breakfast set rate covering all the above items, whichever the least expensive. When the stopover time falls between 1200-1359 of the local time, the amount paid in respect of lunch will not be less than a set lunch +menu consisting of soup of the day, a chicken dish, medium priced dessert and coffee in the medium priced Western style restaurant in the crew hotel. When the stopover time falls between 1800-2159 of the local time, crew members will be paid an amount in respect of dinner. The calculation of the amount in respect of dinner is based on the crew hotel medium priced Western style restaurant. If no medium restaurant exists in the hotel then the prices will be based on the most expensive hotel coffee shop price or the lower end of the top class hotel restaurant. The amount covers a medium priced steak, a medium priced dessert and coffee in a set menu. Delayed flights allowance will be paid if crew members are in the airport and the flight delays for more than 30 minutes. Operations Manual Volume 1, Part 4, Clause 2.1C(a) provides : "Delayed Flights If the crew are at the airport, refreshment chit or reimbursement up to a maximum of HK$90 will be authorized if the delay exceeds 30 minutes." As to rescheduled flight allowance, if crew members are required to stay at the airport, meal vouchers will be given. When crew members are required to stay at the hotel, meal allowance will be provided if the rescheduled stopover includes any part of the period stated in the above. In respect of IA, Clause 2.1(D) of Operations Manual, Volume 1, Part 4 provides : +"D. Incidental Allowance An incidental allowance will be paid when a stopover exceeds 6 hours. If a stopover exceeds 30 hours, a second incidental allowance will be paid. A third incidental allowance will be paid if a stopover exceeds 54 hours and so on. During a continuous duty period if a stopover exceeds 6 hours an incidental allowance will be paid." Crew members on "shuttle" duties are deemed to be on continuous duty for the purpose of qualifying for overnight allowance. An example of a "shuttle" duty is Paris-Manchester-Paris. No allowance is paid for crew members operating shuttle duties from their homeports. IA is calculated based on two times flag fall in an air-conditioned taxi to and from places for a beer or drinks, eight km or five miles total, two small local beers in the crew hotel bar or crew lounge and a tip for one small suitcase. The provision of IA is similar to that of "Overnight Allowance" in Clause 5.5 of the Operations Manual, Volume Part 1. There is no provision on IA in Operations Manual, Volume 6 Part 1. Laundry allowance is paid on the 3rd night and consecutive nights away from home base. The laundry allowance calculation is based on costs in the crew hotel to launder one shirt, one undershirt, one pair of underpants, one pair of socks and one handkerchief. Taxi allowance will be paid if crew members incur cost on taxi journey between the airport and the hotel. Taxi allowance will not +normally be paid when Cathay Pacific or the hotel provides transport or where the hotel operates regular shuttle bus service between the airport and the hotel. Indian port allowance is simply the overnight allowances where crew members fly into Indian ports. The only difference is that the allowance for Indian ports is paid in Hong Kong instead of overseas. The parties dispute where crew members are put in a hotel that is more expensive than the designated crew hotel in an ad hoc situation, if they want to receive OA that is calculated according to the higher of the different hotel tariffs, whether receipts are required to prove that extra out-of-pocket expenses are incurred. The Claimants testified that in their personal experience, receipts were never required. Ms Li Ka Lia Elizabeth, Cathay Pacific’s representative do not have personal experience in the matter. I accept that the Claimants are honest witnesses and their testimony is reliable. After having carefully considered all evidence, I accept that in such case, in practice, receipts will not be required. Usually, crew members are not required to demonstrate that they actually incur any expense while working away from home base. The Claimants produced a 1994 Year and Review Agreement between Cathay Pacific and FAU the contents of which show that there were discussions to change the manner of calculation of OA from meals basis to time basis. In this respect, however, no change has been agreed. The rate of LDA(A) is four times more than that of LDA(B) +(See paragraph 86 below). Becky explained that it is because crew members do not earn OA when they perform duties on day turnaround and split duty flights. Becky said that the purpose of the division being to compensate crew members’ loss of OA, it shows that Cathay Pacific recognizes that OA is a source of income of crew members. Cathay Pacific denies that OA is required to be included in calculating SHP and/or ALP on the following basis : (a) OA is not "wages" within the definition of "wages" in s.2 of the EO as it falls within the exception in subparagraph (d) of s.2 being a "sum payable to the employee" to defray special expenses incurred by him by the nature of his employment", and (b) further and in the alternative, if OA is "wages" under s.2 of the EO (which is denied): (i) OA is not "wages" which the Claimants "would have earned" for the purposes of ss.41(1) and 41C(1) of the EO, and (ii) OA is not "daily wages" for the purposes ss.41(2) and 41C(2) of the EO and/or it is impossible to calculate OA on a daily basis. Firstly, I deal with the question on whether OA is wages within the definition of "wages" in s.2 of the EO. The Claimants contend that OA is wages because it is described in the COS and the Operations Manual as an item of allowance +and that it is represented by Cathay Pacific in its advertisements as forming part of a cabin crew's income. The above considerations relate to how the parties label OA. It is trite that the court does not only look at the label of a payment to determine its true nature. The label is not conclusive. It is not what the parties call it but what it is in substance that matters. One has to look into the nature of the payment, the reasons therefore and the circumstances under which the payment is made. In practice, the Claimants have never paid salary tax on income earned by OA. OA (except for the allowance for Indian ports) is paid overseas. Due to foreign exchange restrictions, allowance for Indian ports is paid when crew members report duty at the Hong Kong airport as they start the flying duty. In my view, the above arrangement is congruent with the intention that OA is to cover out of pocket expenses. OA is calculated by reference to a formula agreed with FAU, which takes account of the actual cost of meals and services at the relevant crew hotel in each port. Periodical reviews of the allowance are held. It appears that the amount of OA payable is a genuine pre-estimate of what the amount of the expense is likely to be. I am aware that OA forms a substantial part of the Claimants' total income and it arises in the course of flying duties performed by them at outports. +After having carefully considered all evidence, I accept that the purpose of OA is to cover meals and miscellaneous out-of-pocket expenses relating to the Claimants' layover overseas between flying duties. OA is however paid in the form of a fixed allowance instead of an actual reimbursement against receipts and, it is on this basis (and on the basis that the allowance is non accountable rather than an accountable reimbursement) that the Claimants seek to argue that OA constitutes wages within the meaning of s.2 of the EO and, does not fall within exception (d). Cathay Pacific contends that the meaning of the words "to defray" means "to reimburse" or "to provide money to cover the costs or expenses". Therefore, the exception in subparagraph (d) applies to a non-accountable allowance as well as to an allowance that is available on a reimbursement basis only. Cathay Pacific lends support from the judgment of Deputy High Court Judge To in Star Express Limited v Cheng Tak and Ors, Labour Tribunal Appeal No. 86/1998, unreported, 11 May 1999. In that case, it was held that on the basis that pre-determined and non-accountable fixed monthly payments made to drivers of tourist coaches to cover parking fees were genuine pre-estimates of what the amount of the parking fees was likely to be, such payments constituted the reimbursement of expense and did not constitute "wages". The Claimants contend that the term "special expenses" in subparagraph (d) to the definition of "wages" in s.2 of the EO denotes something that is of a non-recurrent nature and should be an one-off +expenditure pertinent to the nature of the employment. I note that there is no requirement under the EO that such "special expenses" should be non-recurrent in nature. Though some OA components such as meals and traveling expenses are daily expenses that are incurred whether the Claimants are inside or outside Hong Kong, the Claimants should accept that probably they will incur extra meal and traveling expenses when they stay overseas. Plainly such extra expenses can be regarded as special expenses incurred by them by the nature of their employment. During the trial hearing, the Claimants did not pursue the contention that as IA does not relate to out-of-pocket expenses, IA is a hardship allowance. Anyway, such assertion is not borne out by the relevant provisions of the COS and the Operations Manual. In my view, there is no suggestion that IA is in the nature of a hardship allowance as alleged by the Claimants. After having carefully considered all evidence, I hold that OA is not "wages" within the definition of s.2 of the EO because it falls within the exception in subparagraph (d) being "a sum payable to the employee to defray special expenses incurred by him by the nature of his employment." I do not need to deal with the second leg of Cathay Pacific's argument (See para. 64(b) above). LDA and GDA The details of LDA and GDA are as follows. Clause 5(A) of the COS 1993 provides :- +"A Line Duty Allowance will be paid at the rate published from time to time from each flying duty hour. This allowance will be paid to all Cabin Attendants for each hour spent on flying duty. It is not part of basic salary and will not be paid for any other duty or non-flying activities including sick leave travel. The Line Duty Allowance will be calculated and paid on the basis of Flying Duty Period (FDP) as defined in the Operations Manual Vol. 6." Clause 3.2 of the COS 2003 provides :- "Allowances A Cabin Attendant may also receive, in addition to salary, other payments or allowances, in respect of any special or other duties or circumstances arising from the Cabin Attendant's employment, in accordance with any Company Policies or as determined by the Company's discretion. Such allowances may include … [Ground Duty Allowance]." Clause 3.2(A) of the COS 2003 provides that GDA is payable for ground duty hours spent on ground, being :- “(i) the time between when Cabin Attendants are required by the Company to report for duty and the time from which the aircraft commences to move whether under its own power or not ("Departure Time"); (ii) 15 minutes after the time when the aircraft is finally stationary after landing ("Arrival Time") in the last single sector a cabin crew operates prior to the Rest Period ("the Final Sector") or (as the case may be), in situations of extended delay after the Arrival Time where a cabin crew is required to remain on an aircraft in excess of one hour after arrival in the Final Sector, the actual +time the cabin crew is required to carry out duties in relation to the extended delay; and (iii) save in relation to extended delays which are covered by paragraph (ii) above, within a Flight Duty Period any time on ground which is not considered as Rest Period.” Crew members' duty comprises of time on ground and time in air. LDA is payable due to time in air (line duty hours). GDA is payable due to time on ground preparing to fly (ground duty hours). They both relate to duty time that is dependant on a number of different factors. While LDA and GDA are different, I consider that I can deal with them at the same time for the purpose of the present claims. In the Statement of Defence filed in these proceedings, Cathay Pacific said that as the COS provides that the Claimants “may” be entitled to OA, LDA, GDA and DFSC, there is a strong argument that the Claimants does not have any contractual entitlement to the same. During the trial hearing, Cathay Pacific's representative accepted that LDA and GDA are part of the Claimants' wages, although she maintained that they are not wages that the Claimants would have earned for the purpose of the old ss.41(1) and 41C(1) of EO. There is no provision in COS 1986 that provides for entitlement to LDA. Clause 5(A) of COS 1986 provides that Becky was entitled to Inflight Meal Compensation Allowance. Clause 5(B) of COS 1986 provides that Becky was entitled to Ground Allowance. Loosely speaking, since about 1988, the Inflight Meal Compensation Allowance and Ground Allowance have been replaced by LDA. Clause 5(A) of COS 1993 provides Vera’s entitlement to LDA. Details of when LDA is payable are set out in Clause 6 of the Operations Manual Volume 6, Part 1. Clause 3.2 of COS 2003 provides Jenny’s entitlement to GDA. +Details of when GDA is payable are set out in Clause 3.2(A) of COS 2003. After having carefully considered all evidence, I consider that Jenny receives GDA pursuant to Company Policies rather than Cathay Pacific’s discretion. On the whole, LDA and GDA are not of a gratuitous nature or payable only at Cathay Pacific's discretion. LDA and GDA represent a component in the Claimants' wages for work that they have done. In my view, it is indisputable that LDA and GDA are part of the Claimants' wages. The real issue is whether they are wages that the Claimants would have earned for the purpose of the old s.s41(1) and 41C(1) of the EO. LDA is paid on two scales that are LDA(A) and LDA(B). LDA(A) is payable for day turnaround and split duty flights at HK$60.5 per hour. LDA(B) is payable for all other flights at HK$15.125 per hour. Such division is again a deal struck between Cathay Pacific and FAU. Becky and Vera receive LDA on the total number of line duty hours that they operate in an aircraft. LDA is calculated based on the total number of line duty hours that starts when a cabin crew reports duty and finishes on blocks or engines off on the final sector. The duty hours start when the cabin crew reports duty and finishes 30 minutes after on blocks or engines off on final sector. The cabin crew will have a 30 minutes debriefing after the engines are off. Therefore, the line duty hours are 30 minutes less than the duty hours. LDA varies based on the flight that the cabin crew is rostered to operate and the length of time spent on a flight. LDA is calculated down to the minute. No two flights produce the same amount of LDA. There are various factors that affect +the number of the line duty hours of a flight and therefore LDA a cabin crew earns. These factors include weather, wind speed, location of the gate, delay or cancellation of flights etc. When a flight is cancelled due to adverse weather, the cabin crew will not earn any LDA even if she is rostered on a flight on that day. If the flight is delayed because of some technical problems, the line duty hours will be longer and the cabin crew will earn more LDA. The rate of GDA is HK$73.2 per hour. Jenny receives GDA on the total number of ground duty hours. Very rarely would two flights depart at the same time. Again, factors such as weather, delay or cancellation of flights etc affect the Departure Time of a flight and therefore the GDA a cabin crew earns. If a cabin crew reports for duty and the flight is subsequently cancelled due to adverse weather, the cabin crew will earn GDA for the period between the time she reports duty and the time Cathay Pacific announces that the flight is cancelled. The ground duty hours could be longer or shorter than the period between the time required to report duty and the scheduled departure time. If the flight is cancelled before the time required to for report duty, the cabin crew will not receive any GDA. If the flight is delayed because of, say, some technical problems, the ground duty hours will be longer and the cabin crew will receive more GDA. Some flights depart earlier than others. There is no certainty on the number of ground duty hours. A cabin crew will not earn any LDA or GDA if she reports +sick on a day that she is rostered with flying duties. Crew members may swap duties among themselves and Cathay Pacific has the right to alter, vary or substitute the roster issued to a crew, as it considers appropriate to meet its operational requirements. Cathay Pacific pays LDA and GDA monthly at the end of the following month. Cathay Pacific contends that LDA and GDA are not "wages" that the Claimants "would have earned", rather it is something that the Claimants "might have earned" because there is no certainty on the amount of LDA or GDA that the Claimants will earn each month; that both LDA and GDA are paid only if a cabin crew has performed flying duties and that the Claimants are not always assigned with flying duties. After having carefully considered all evidence, I accept that LDA and GDA should not be regarded as wages that would have earned for the purpose of ss.41(1) and 41C(1) of the old EO because there is no workable mode of calculation for working out the amount of LDA and GDA that the Claimants would have earned during the leave period. I now turn to the question on whether LDA and GDA should be included in the calculation of the ALP and SHP in accordance with the old ss.41(2) and 41C(2) of the EO. In Lam Pik Shan v. Hong Kong Wing On Travel Services Ltd., CACV 394/2007, unreported, 9 May 2008, the Court of Appeal upheld the decision of the High Court that tips received by the Plaintiff (Respondent), a travel escort, should be included in the calculation of ALP and SHP. In the paragraph (1) of the Judgment, Hon. Rogers VP held, +"In that judgment (Lisbeth Enterprises Ltd. v. Mandy Luk (2006) 9 HKFAR 131) the Court of Final Appeal came to the conclusion that the provisions in the Employment Ordinance, Cap. 57 relating to commission were unworkable where the commission was calculated at rates that varied on a monthly basis. That is not the situation in this case, which relates to tips which are based on a daily rate. In the second place it is quite clear that the legislature intended that tips should be taken into account in calculating wages. That is the clear intention emerging from the Ordinance itself. I am fortified in that conclusion because in passing the Employment (Amendment) Ordinance 2007, and in particular sections 10-15, the legislature has removed any difficulty there might be in making the relevant calculations. In the absence of the new provisions, had there some supposed difficulty in the method of calculation, it would have been the function of this court to give effect to the manifest intention of the legislature that tips should be taken into account in the calculation." In the following paragraphs, Hon. Le Pichon JA held, "20. Prima facie, tips received from tour participants would fall squarely within the statutory definition of "wages". The real question is whether a workable mode of calculation exists for working out the net tips and whether it can be said to accrue daily. 21. As already noted, the discretionary nature of tips is not a bar (as distinct from the case of commissions) to their forming part of an employee's wages. Further any discretion in the payment of a tip would be that of the tour participant and not employer i.e. the tour operator. While +the amount of tips received per month may vary, depending on a number of factors including the number of days spent escorting tours, the type of tour, the number of persons joining the tours etc., in the present case, these factors do not pose any particular difficulty in the way of calculating daily wages. Not only is the rate of recommended tips made on a per person per day basis, the tips the tour guide/escort had to defray in the foreign country are also expressed in a similar fashion. Even if the tour guide does not receive his tips until the end of the tour, given that the duration of the tour is a fixed number of days, the net tips per day can be said to "accrue" on a daily basis and are readily calculable on the same basis." Notably, in Lam Pik Shan v. Hong Kong Wing On travel Services Ltd, the travel escort, like Becky and Vera, received a monthly salary. In Lam Pik Shan v. Hong Kong Wing On Travel Services Ltd, the travel escort was paid tips that were based on a daily rate. In the present case, LDA and GDA are not calculated at daily rate. It seems to me that for the old ss.41(2) and 41C(2) of EO to apply, however, it is not necessary that the wages shall be calculated at daily rate. The old ss.41(2) and 41C(2) of EO apply where an employee is employed on piece rates or where the daily wages of an employee vary from day to day. I hold that LDA is part of Becky and Vera's wages and GDA is part of Jenny's wages. In my view, inasmuch as an employee's wages are calculable daily, the old ss.41(2) and 41C(2) of EO may apply. As Hon Le Pichon JA held, "The real question is whether a workable mode of calculation exists for working out … and whether it can be said to accrue daily". LDA and GDA are calculated by minutes. There should be no difficulty in calculating the LDA and GDA already earned by the Claimants on any +given day. Therefore, even if the Claimants do not receive LDA and GDA until the end of the next month, given that LDA and GDA is calculable daily and therefore can be said to accrue daily, in my view, they can be said to be daily wages that vary from day to day. In Wong Yin Fong & Others v. ISS Hong Kong Services Ltd [2005] 2 HKLRD 648, Labour Tribunal Appeal 56 of 2003, 17-19 May and 28 June 2005, Court of First Instance, J Lam J held, "99. Although there are differences between the statutory scheme for rest days and that for annual leave, I think it is equally plain from the statutory scheme as analyzed above that the protection conferred under Pt. VIIIA by way of annual leave is to protect employees from the evils of continuously working without proper opportunity to rest. The Legislature obviously considered that it is important that an employer (p.679) should give an employee proper rest by way of annual leave. This explains the mandatory nature of annual leave, see the observations of A Cheung J in para. 33 of his judgment in Laing & Others v. Lisbeth Enterprises Ltd [2004] 3 HKC 548. Given its paternalistic nature, the statutory scheme strives to achieve through s.41C that an employee will not suffer any accompanying economic loss for not working during the leave period." The above-mentioned Judgment was delivered before Lisbeth Enterprises Ltd v Mandy Luk [2006] 9 HKFAR 131. It is worthy of noting that when the case went further to the Court of Appeal, Wong Yin Fong & Others v. ISS Hong Kong Services Ltd [2008] 1 HKLRD 63, 28 November 2007, Court of Appeal, Hon Cheung JA said, "52. Wong Ping Kong and Lam J's decision in the first +instance on section 41C were referred to by the Court of Final Appeal in Lisbeth Enterprises Ltd v. Mandy Luk [2006] 9 HKCFAR 132. In my view the Court of Final Appeal not only has not disapproved of these two cases but has actually approved them." Taking that the legislative intention is to achieve through s.41C that employees will not suffer any accompanying economic loss for not working during the leave period, given that s.41 is parallel to s.41C at this end, I am satisfied that Cathay Pacific should include LDA and GDA in the calculation of the Claimants’ ALP and SHP by using the following formulas, in accordance with the old ss.41(2) and 41C(2) of EO : ALP - (Total LDA/GDA earned during the month immediately preceding or expiring on the first day of the annual leave or on the day on which the contract of employment terminates, as the case may be) ÷ (Number of working days during the same period) SHP – (Total LDA/GDA earned during the month immediately preceding or expiring on the holiday or first day of the holiday) ÷ (Number of working days during the same period) I reckon that probably the parties will propound different modes of calculation for working out the number of working days for the purpose of the formulas. Becky and Vera are monthly salaried while Jenny is hourly paid. Does it mean that the whole month immediately preceding or expiring on the holiday or first day of the leave (i.e. 30 or 31 days) should +be counted as working days of Becky and Vera? Further or in the alternative, should only the days on which the Claimants are required to perform duties (in air and on ground) be counted as working days; should only the days on which Becky and Vera are required to perform duties in air (but not on ground) be counted as their working days, as LDA is payable due to time in air; should only the days on which Jenny is required to perform duties on ground (but not in air) be counted as her working days, as GDA is payable due to time on ground preparing to fly; should the days during which the Claimants are put on Standby duties be counted as working days; should the days during which the Claimants are put on Stop over in outports be counted as working days; and/or should the days during which Jenny earns Work credits and Leave credits be counted as her working days, for the purpose of the formulas? The parties reserve their respective positions on these questions. I shall leave them to be dealt with when the question of quantum arises. In any case, once these questions are resolved, the parties will have no difficulty in working out the amount that Cathay Pacific is liable to pay in compensation to the Claimants. DFSC Cathay Pacific would assign hourly paid crew members to conduct inflight duty free sales. Once an hourly paid crew is assigned, she has no choice but to perform the same as part of her duties. The details of Duty Free Sales Commission (“DFSC”) are set out in Cathay Pacific's Inflight Sales Commission Policy. DFSC is separated into Individual Commission, Team Award, BC Star Award and ISM Star Award. Individual cabin crew earns a flat rate of 3.5% of sales +made by her. The commission is paid at the end of the following month. Team Award is given to the top team with the best inflight sales performance. Crew members of the top team receive gifts as prizes. BC Star Award is given to top performers. ISM Star Award is given to the top Inflight Services Managers. During the trial hearing, Cathay Pacific’s representative accepted that DFSC is part of Jenny's wages. After having carefully considered all evidence, I am satisfied that DFSC is not of a gratuitous nature or payable only at Cathay's discretion. I hold that DFSC represents a component in Jenny's wages for work that she has done and is part of her wages. Cathay Pacific contends that DFSC is not "wages" that Jenny "would have earned", rather it is something that Jenny "might have earned" because : (1) Some, but not all, of the flights have inflight sales. There is no certainty that Jenny will be rostered on a flight that has inflight sales; (2) Not all crew members are entitled as of right to earn DFSC. The computer may assign a crew to be responsible for inflight sales and the Inflight Service Manager can always assign another crew to perform inflight sales; (3) The entitlement to DFSC depends on the flight Jenny is rostered on and whether or not she is assigned with the inflight sales duty. After having carefully considered all evidence, I accept that +DFSC should not be regarded as wages that would have earned for the purpose of the old ss.41(1) and 41C(1) of the EO because there is no workable mode of calculation for working out the amount of DFSC that Jenny would have earned during the leave period. I now turn to the question on whether DFSC should be included in the calculation of the ALP and SHP in accordance with the old ss.41(2) and 41C(2) of the EO. In my view, inasmuch as an employee’s wages are calculable daily, the old ss.41(2) and 41C(2) of the old EO may apply. In Lisbeth Enterprises Ltd v Mandy Luk, the employee who worked in a health and beauty club was entitled not only to a monthly salary but also to a commission on sales made by her. The contractual commission was calculated on a monthly basis, payable according to fluctuating monthly results on a sliding scale. Jenny’s case is different from Lisbeth Enterprises Ltd v Mandy Luk in that Jenny receives DFSC on the flat rate of 3.5% of the sales made by her. The upshot is that there would be no difficulty in calculating the amount of DFSC already made by Jenny on any given day (disregarding the Team Award gifts, BC Star Award and ISM Star Award), and therefore it can be said to accrue daily. Even if the Claimants do not receive DFSC until the end of the next month, given that DFSC can be said to accrue daily, it is daily wages that vary from day to day. Further or alternatively, apparently Jenny is employed on piece rate when she performs the duty free sales duty. By reason of matters aforesaid, I hold that Cathay Pacific should include DFSC in the calculation of Jenny's ALP and SHP by using the following formulas, in accordance with the provisions of the old ss.41(2) and 41C(2) of the EO : ALP - (Total DFSC earned during the month immediately preceding or expiring on the first day of the annual leave or +on the day on which the contract of employment terminates, as the case may be) ÷ (Number of working days during the same period) SHP – (Total DFSC earned during the month immediately preceding or expiring on the holiday or first day of the holiday) ÷ (Number of working days during the same period) Again, I shall deal with those questions regarding the mode of calculation for working out the relevant number of working days for the purpose of the formulas when the question of quantum arises. Has Jenny received any SHP at all? Clause 2.4(3) of the COS 2003 provides :- "Days Without Duties The Days Without Duties will include any statutory holidays (or alternative holidays) and rest days, as the case may be, to which a Cabin Attendant is entitled under the Employment Ordinance. Clause 5.3 of the COS 2003 provides :- "Statutory Holidays and Rest Days Statutory holidays and rest days are allocated to Cabin Attendants as Days Without Duties (please refer to paragraph 2.4(3) of these COS, above.)" Cathay Pacific intimates that, in addition to the Days Without Duties, Cathay Pacific also uses Standby duties (Jenny earns 1 credit hour +for each 3 hours of Standby duties) to discharge its obligation to provide Jenny with statutory holidays under the EO. I do not agree. It is clear from the above-mentioned contractual provisions that Cathay Pacific uses Days Without Duties to discharge its obligation to provide Jenny with statutory holidays under the EO. Unlike to the other two Claimants who are monthly paid crew, Jenny's wages are calculated on the numbers of flying hours she is able to achieve on a monthly basis. Her salary structure is not governed by the Master Pay Scale like the monthly paid crew members do. She does not enjoy the benefit of automatic annual increment along the Master Pay Scale. Generally, Jenny is rostered to not less than the value of 70 hours of flying duties each month. If she wants to earn more, she may swap flights with colleagues to fly more, thus earning the extra flying hours which are all calculated on the basis of HK$146.4 per hour. In practice, Jenny swapped flights with colleagues to fly less, thus receiving only the MGFP in many months. Her wages are linked to performance of flying duties, Work Credits and Leave Credits. Therefore, Jenny contends that Cathay Pacific has not paid her any SHP at all. Cathay Pacific contends that according to Clause 3.1 of the COS 2003, Jenny receives a monthly salary that is, rather than a specified amount in her contract, calculated with reference to MGFP that is paid regardless of the work or duty she may or may not have undertaken or been assigned to her during the month; that MGFP is payable due to time on duty as well as time not on duty in the same way as a worker is paid a +basic monthly salary but may also be entitled to monthly overtime if she works extra hours in that month. Clause 3.1 of the COS 2003 provides that Jenny will receive salaries calculated on a monthly basis. Having salaries calculated on a monthly basis does not mean that she is monthly salaried. Employees employed at piece rate or hourly rate may receive salaries calculated on a monthly basis. In my view, the payment structure of Jenny plainly shows that she is an hourly paid employee. Cathay Pacific pays Jenny MGFP at the value of 70 Block Hours, as it assumes that a cabin crew works 85 credit hours (inclusive of Block Hours flown) and 25.5 ground duty hours each month. It demonstrates that the MGFP relates to crew members’ flying duties rather than the Days Without Duties. For example, when an hourly paid cabin crew performs more than 70 flying hours in a month, she is paid by the actual flying hours plus any credits earned. It means that she will not reap any benefit from the MGFP, notwithstanding that Cathay Pacific may well provide her with Days Without Duties in that month. An hourly paid cabin crew is not paid for those Days Without Duties that coincide with the statutory holidays. In other words, in a month if there is a statutory holiday, she is still paid 70 flying hours plus the extra flying hours she has performed (if any) without any SHP. In my view, the corollary is that she does not receive any SHP. One can educe from Jenny’s salary structure that she does not +receive any payment for the Days Without Duties. In so far as Cathay Pacific uses Days Without Duties to discharge its obligation to provide Jenny with statutory holidays under the EO, Jenny does not receive any SHP. Ordinary Wages Prior to the amendments introduced by the EAO, s.42 of the EO provides :- "42 Ordinary wages instead of holiday pay, annual leave pay, maternity leave pay or sickness allowance Where, pursuant to the terms of his contract of employment or the terms of any other agreement or for any other reason, an employee is paid his ordinary wages in respect of any holidays, annual eave, maternity leave or sickness day, the employee shall not, in addition to such ordinary wages, be entitled to be paid holidays pay, annual leave pay, maternity leave pay or sickness allowance, as the case may be." The EAO repealed s.42 of EO. Cathay Pacific contends that the Claimants' monthly basic salary, together with other regular fixed monthly allowance, represents their "ordinary wages" for the purposes of s.42 of the EO. Mr Justice Rogers VP held at paragraph 21 of Lam Pik Shan v. Hong Kong Wing On Travel Services Ltd, "21. As regards section 42 of the Ordinance, I see no +basis for restricting the meaning of "ordinary wages" to the bare, almost notional, payment under clause 7 of the agreement. In my view "ordinary wages" has no other meaning than "wages" as used in the Ordinance." Such view was echoed by the Honorable Mr. Justice Cheung JA in Fong Mung Yan v. ISS Hong Kong Service Limited, at paragraph 49 where the learned Judge said, "49. In my view section 42 does not assist the Defendant. This section merely prevents the worker from receiving a double benefit. It provides no answer to the question whether wages include attendance bonus. In my view there is no distinction between the term "wages" as defined by section 2(1) and ''ordinary wages' referred to in section 42." I hold that s.42 of does not assist Cathay Pacific. S.40 of the EO In relation to the payment of SHP, s.40 of the EO provides : "40. Payment of holiday pay Subject to section 12(11), an employee who has been employed by his employer under a continuous contract for a period of 3 months immediately preceding a statutory holiday shall, not later than the day on which the employee is next paid his wages after that holiday, be paid by his employer holiday pay at the rate specified in section 41, whether the employee takes a holiday on the statutory holiday or on an alternative or substituted holiday or a holiday +under section 39(4)." This section is applicable both prior to and after the introduction of the EAO. Cathay Pacific contends that by virtue of the provisions of s.40, to the extent that the Claimants worked on a statutory holiday, the wages paid to them in respect of that statutory holiday (which she worked) constitute their full entitlement under the EO in respect of that statutory holiday. In these circumstances, the Claimants will have received the amount they "would have earned" on the statutory holiday. In effect, Cathay Pacific rigidly construes "that holiday" referred to in s.40 as the statutory holiday. In my view, "that holiday" plainly means the holiday actually taken by the employee, whether the employee takes a holiday on the statutory holiday or on an alternative or substituted holiday or a holiday under s.39(4). Were Cathay Pacific's construction acceptable, an employer would have no obligation under the EO to pay SHP in respect of an alternative or substituted holiday. That must be wrong. Contractual Annual Leave Pay Clause 16(A) of the COS 1986 provides :- "Annual Leave – Cabin crew will be granted three weeks’ paid leave per year. In the first year cabin crew do not qualify for annual leave until they have completed nine months’ service. After completing five years of service, cabin crew will be granted four weeks’ paid leave per year. After completing ten years of service, cabin crew will be +granted five weeks’ paid leave per year." Clause 12(A) of the COS 1993 provides :- "Annual Leave – Cabin Attendants will be granted three weeks’ paid leave per year. In the first year Cabin Attendants do not qualify for annual leave until they have completed probation. After completing five years of service, Cabin Attendants will be granted four weeks’ paid leave per year. After completing ten years of service, Cabin Attendants will be granted five weeks’ paid leave per year. Leave shall be taken in accordance with the leave roster system established by the Company. The taking of leave will be subject to the exigencies of service as determined by the Company. " Clause 5.1 of the COS 2003 provides :- "Annual Leave The Company operates a common leave year from 1 January to 31 December. Cabin Attendants are eligible to apply for and take annual leave in accordance with Company Policies. Annual leave will be granted subject to the needs of the Company, determined in its discretion from time to time. A Cabin Attendant is expected to take all annual leave within the current leave. Annual leave cannot be carried forward without prior written approval of the Company. Advance annual leave may be granted at the Company’s sole discretion. If granted, the Cabin Attendant’s annual leave entitlement for the ensuing period will be adjusted accordingly. If, upon leaving the employment of the Company, a Cabin Attendant has taken annual leave in excess of the Cabin Attendant’s pro-rata annual leave entitlement, calculated +to cessation of employment, the final payment made to the Cabin Attendant will be adjusted accordingly." The Company Policy provides Jenny’s AL entitlement as follows :- "Cabin crew who join on or after 01 September 1996: Flight Attendant or Flight Purser with less than 5 years of service as cabin crew, 21 days of leave entitlement Flight Attendant or Flight Purser with more than 5 years of service as cabin crew, 24 days of leave entitlement Senior Purser or Inflight Service Manager, 28 days of leave entitlement" Section 2 of the EO provides that "annual leave" means the annual leave provided for in Part VIIIA and "annual leave pay" means the annual leave pay required by the EO to be paid in respect of a period of annual leave provided for in Part VIIIA in respect of a period of annual leave required to be paid under section 41D. Therefore, Cathay Pacific contends that the provisions in the EO relation to annual leave and annual leave pay are applicable only to statutory annual leave (a maximum of 14 days); that the statutory provisions do not apply to leave granted by an employer in excess of the statutory annual leave and that leave granted in excess of the statutory requirement. In other words, contractual annual leave, including the taking and the payment of such leave, is therefore governed solely by the terms of the relevant employment contract, which fall to be interpreted and construed in accordance with general contractual principles. Cathay Pacific contends that on the basis of general +contractual principles of construction and on the basis of plain common sense, the expression "paid leave" means leave of absence from work with the payment of basic salary and those allowances to which a cabin attendant is entitled by virtue of his or her position i.e. title and appointment allowances, but excluding allowances which arise by virtue of the actual performance of in flight or other specific duties, such as OA, LDA and GDA and which plainly do not arise at all during periods of leave. I accept that the Claimants' contractual AL is governed by the terms of the employment contract. The COS are drafted in details. Upon reading the relevant provisions of the COS, I observe that they do not make any distinction between a cabin crew's statutory and contractual annual leave payment. In practice, there is no way to tell when the Claimants take AL, whether they are on the statutory or contractual AL. As a matter of construction of the employment contract, I take the starting point that the calculation of the ALP regarding all AL provided by the employment contract is equal. In Wong Yin Fong & others v. ISS Hong Kong Services Ltd, J Lam J held that "Given its paternalistic nature, the statutory scheme strives to achieve through s.41C that an employee will not suffer any accompanying economic loss for not working during the leave period". In the present case, Cathay Pacific takes into account of the numbers of days of AL taken by Becky and Vera to calculate their Excess Flying Pay ("EFP") (See Clause 6 of COS 1986 and Clause 5 of COS 1993 for EFP’s meaning). Jenny's situation is similar. Cathay Pacific takes into account the number of hours flown as well as credits earned by reasons of leave (including AL) to calculate MGFP and Jenny's wages. Jenny earns +3.25 leave credits per day of AL. Such arrangements suggest that the parties are also prepared to make provision for making up a cabin crew’s accompanying economic loss for not working during the leave period. Conversely, Cathay Pacific contends that on the basis of plain common sense, allowances that arise by virtue of the actual performance of duties such as LDA and GDA should be excluded in calculating ALP and SHP. Courts will imply terms into individual contracts on the ground of business efficacy but it is nothing to do with making things reasonable or fair. All in all, I am not persuaded by Cathay Pacific's common sense approach. After having carefully considered all evidence, I take the view that there is no contractual basis to calculate the ALP attributable to the statutory and contractual AL differently. Conclusion I hold that Jenny is hourly paid. Therefore, she is employed on daily wages that vary from day to day. In accordance with the old s.41(2) of EO, her holiday pay shall be a sum equivalent to the average of the daily wages earned by her on each day on which she worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the holiday or first day of the holiday. In my view, she does not receive any SHP. In accordance with the old s.41C(2) of EO, her annual leave pay shall be calculated by reference to the average of the daily wages earned by her on each day on which she worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the first day of the annual leave or on the day on which the contract of employment terminates, as the case may be. Account will be taken into ALP that were already paid by Cathay Pacific. +In conclusion, I hold that Cathay Pacific should calculate and pay Becky and Vera shortfalls in the amounts of ALP and SHP in the manners as set out in the above paragraph 102 and should calculate and pay Jenny shortfalls in the amounts of ALP and SHP in the manners as set out in the above paragraphs 102, 108 and 140, but it is not required to include OA in the calculation of ALP and SHP. The parties shall make arrangements with the case Tribunal Officer for the purpose of fixing a mutually convenient date for a mention hearing on the question of quantum. Costs reserved.  (K.K. PANG) Deputy Presiding Officer   + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/en_cases_hklat/2009_HKLaT_2/case.json b/en_cases_hklat/2009_HKLaT_2/case.json new file mode 100644 index 0000000..d65f48d --- /dev/null +++ b/en_cases_hklat/2009_HKLaT_2/case.json @@ -0,0 +1,32 @@ +{ + "Date": "12 Jan, 2009", + "Action No.": "LBTC2828/2008", + "Neutral Cit.": "[2009] HKLaT 2", + "case_title": "WU YEE MEI VERA V. CATHAY PACIFIC AIRWAYS LIMITED", + "page_title": "WU YEE MEI VERA V. CATHAY PACIFIC AIRWAYS LIMITED | [2009] HKLaT 2 | HKLII", + "case_history": [ + { + "name": "LBTC2828/2008", + "link": "https://www.hklii.hk/en/appealhistory/LBTC/2008/2828" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hklat/2009/2", + "neutral_cit": "[2009] HKLaT 2", + "court_code": "HKLAT", + "content": "LBTC 2828/2008\nIN THE LABOUR TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCLAIM NO. LBTC 2827/2008, 2828/2008 & 2829/2008\n__________________________________\nBETWEEN\nLBTC 2827/2008\nKWAN SIU WA BECKY\nCLAIMANTS\nLBTC 2828/2008\nWU YEE MEI VERA\nLBTC 2829/2008\nHO KIT MAN JENNY\nand\nCATHAY PACIFIC AIRWAYS LIMITED\nDEFENDANT\n__________________________________\nCoram: Pang Ka Kwong, Deputy Presiding Officer\nDate of Trial: 22, 23 & 24 December 2008, 12 January 2009\nDate of Decision on Liability: 12 January 2009\nDate of Reasons for Decision on Liability: 12 January 2009\nDate of Corrigendum:  22 January 2009\n__________________________________\nCORRIGENDUM\nThe quoted provisions of ss.41 and 41C of the Employment (Amendment) Ordinance on pp. 12-15 should be amended as shown in red in the Attachment to this Corrigendum.\n(Yau Wai-yuen)\nClerk to Pang Ka Kwong, Deputy Presiding Officer\nhe worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the first day of the annual leave or on the day on which the contract of employment terminates, as the case may be.\"\n33.  Following the introduction of the EAO, the provisions for calculating SHP and ALP are :-\n(i)\nSHP\n\"\n41. Rate of Holiday pay\n(1) For the purposes of subsections (2), \n (3) and (4), \"wages\"(工資) includes any sum paid by an employer in respect \n of -\n(a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee;\n(b) a day of leave taken by the employee with the agreement of his employer;\n(c) a normal working day on which the employee is not provided with work;\n(d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap\n.\n282).\n(2) The daily rate of holiday pay is a sum equivalent to the daily average of the wages earned by the employee during -\n(a)\na\nthe\nperiod of 12 months immediately before the holiday or first day of the holidays \n (as appropriate); or\n(b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the holiday or first day of the holidays (as appropriate), the shorter period.\n(3) In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period -\n(a) any period therein for which the employee was not paid his wages or full wages by reason of -\n(i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee;\n(ii) any leave taken by the employee with the agreement of his employer;\n(iii) his not being provided by his employer with work on any normal working day; or\n(iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap\n.\n282); and\n(b) any wages paid to him for the period referred to in paragraph (a)\n.\n,\nare to be disregarded.\n(4) For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a\nfraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (3).\n…..\"\n(ii)\nALP\n\"\n41C Rate of annual leave pay\n(1) For the purposes of subsections (2), (3) and (4), \"wages\"(\n工資) includes any sum paid by an employer in respect of -\n(a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee;\n(b) a day of leave taken by the employee with the agreement of his employer;\n(c) a normal working day on which the employee is not provided with work;\n(d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap\n.\n282).\n(2) The daily rate of\nholiday\nannual leave\npay is a sum equivalent to the daily average of the wages earned by the employee during -\n(a)\na\nthe\nperiod of 12 months immediately before the\nholiday\nday of annual leave,\nor\nthe\nfirst day of the\nholidays\nannual leave or the date of termination of the contract of employment\n(as appropriate); or\n(b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the\nholiday\nday of annual leave,\nor\nthe\nfirst day of the\nholidays\nannual leave or the date of termination of the contract\n(as appropriate), the shorter period.\n(3) In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period -\n(a) any period therein for which the employee was not paid his wages or full wages by reason of -\n(i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee;\n(ii) any leave taken by the employee with the agreement of his employer;\n(iii) his not being provided by his employer with work on any normal working day; or\n(iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap\n.\n282); and\n(b) any wages paid to him for the period referred to in paragraph (a)\n.\n,\nare to be disregarded.\n(4) For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a fraction of the amount earned by the employee", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2008/LBTC002828_2008.doc", + "file_name": "LBTC002828_2008.doc", + "file_ext": ".doc", + "status": "success" + }, + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2008/LBTC002828M_2008.doc", + "file_name": "LBTC002828M_2008.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hklat/2009_HKLaT_3/LBTC002829M_2008_abp_fallback.txt b/en_cases_hklat/2009_HKLaT_3/LBTC002829M_2008_abp_fallback.txt new file mode 100644 index 0000000..362beb1 --- /dev/null +++ b/en_cases_hklat/2009_HKLaT_3/LBTC002829M_2008_abp_fallback.txt @@ -0,0 +1,8 @@ +LBTC 2829/2008 IN THE LABOUR TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CLAIM NO. LBTC 2827/2008, 2828/2008 & 2829/2008 __________________________________ BETWEEN LBTC 2827/2008 LBTC 2828/2008 LBTC 2829/2008 KWAN SIU WA BECKY WU YEE MEI VERA HO KIT MAN JENNY CLAIMANTS   and    CATHAY PACIFIC AIRWAYS LIMITED DEFENDANT   __________________________________ Coram: Pang Ka Kwong, Deputy Presiding Officer Date of Trial: 22, 23 & 24 December 2008, 12 January 2009 Date of Decision on Liability: 12 January 2009 Date of Reasons for Decision on Liability: 12 January 2009 Date of Corrigendum: 22 January 2009 __________________________________ CORRIGENDUM The quoted provisions of ss.41 and 41C of the Employment (Amendment) Ordinance on pp. 12-15 should be amended as shown in red in the Attachment to this Corrigendum. + (Yau Wai-yuen) Clerk to Pang Ka Kwong, Deputy Presiding Officer + he worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the first day of the annual leave or on the day on which the contract of employment terminates, as the case may be." 33. Following the introduction of the EAO, the provisions for calculating SHP and ALP are :- (i) SHP "41. Rate of Holiday pay (1) For the purposes of subsections (2), (3) and (4), "wages"(工資) includes any sum paid by an employer in respect of - (a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; (b) a day of leave taken by the employee with the agreement of his employer; (c) a normal working day on which the employee is not provided with work; (d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap. 282). (2) The daily rate of holiday pay is a sum equivalent to the daily average of the wages earned by the employee during - (a) the period of 12 months immediately before the holiday or first day of the holidays (as appropriate); or +(b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the holiday or first day of the holidays (as appropriate), the shorter period. (3) In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period - (a) any period therein for which the employee was not paid his wages or full wages by reason of - (i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee; (ii) any leave taken by the employee with the agreement of his employer; (iii) his not being provided by his employer with work on any normal working day; or (iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap. 282); and (b) any wages paid to him for the period referred to in paragraph (a), are to be disregarded. (4) For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a +fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (3). ….." (ii) ALP "41C Rate of annual leave pay (1) For the purposes of subsections (2), (3) and (4), "wages"(工資) includes any sum paid by an employer in respect of - (a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; (b) a day of leave taken by the employee with the agreement of his employer; (c) a normal working day on which the employee is not provided with work; (d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap. 282). (2) The daily rate of annual leave pay is a sum equivalent to the daily average of the wages earned by the employee during - (a) the period of 12 months immediately before the day of annual leave, the first day of the annual leave or the date of termination of the contract of employment (as appropriate); or (b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the +day of annual leave, the first day of the annual leave or the date of termination of the contract (as appropriate), the shorter period. (3) In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period - (a) any period therein for which the employee was not paid his wages or full wages by reason of - (i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee; (ii) any leave taken by the employee with the agreement of his employer; (iii) his not being provided by his employer with work on any normal working day; or (iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap. 282); and (b) any wages paid to him for the period referred to in paragraph (a), are to be disregarded. (4) For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a fraction of the amount earned by the employee + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/en_cases_hklat/2009_HKLaT_3/LBTC002829_2008.txt b/en_cases_hklat/2009_HKLaT_3/LBTC002829_2008.txt new file mode 100644 index 0000000..733cdc9 --- /dev/null +++ b/en_cases_hklat/2009_HKLaT_3/LBTC002829_2008.txt @@ -0,0 +1,519 @@ +LBTC 2829/2008 + IN THE LABOUR TRIBUNAL OF THE +HONG KONG SPECIAL ADMINISTRATIVE REGION +CLAIM NO. LBTC 2827/2008, 2828/2008 & 2829/2008 +__________________________________ + BETWEEN + + +__________________________________ +Coram: Pang Ka Kwong, Esq., Deputy Presiding Officer +Date of Trial: 22, 23 & 24 December 2008, 12 January 2009 +Date of Decision on Liability: 12 January 2009 +Date of Reasons for Decision on Liability: 12 January2009 +__________________________________ + + +Reasons for Decision on Liability + +The trial proceedings use the Chinese language. The parties agree that I can deliver this Reasons for Decision on Liability in the English language. + +The parties reserve their respective positions on quantum. + +Under paragraph (a) 1 of the Claimants’ respective Form 2, the Claimants stated that their grounds for the claims include :- + +(a) “Failure to grant statutory holidays” +(b) “Failure to grant annual leaves”. +The Claimants do not pursue the claims under paragraph (a) 1. + +Claim +The present claims are for "shortfalls" in the amounts of Statutory Holiday Pay ("SHP") and Annual Leave Pay ("ALP") that were paid by Cathay Pacific, such shortfalls allegedly arising from the non-inclusion of Line Duty Allowance ("LDA"), Outport Allowance ("OA"), Ground Duty Allowance ("GDA") and Duty Free Sales Commission ("DFSC") in calculating SHP and ALP. + +In material, there is no dispute on the background facts of the cases. + +Kwan Siu Wa Becky ("Becky") +By a letter of appointment dated 20th September 1975, Becky joined Cathay Pacific as a Junior Flight Hostess of the cabin crew. + +She was promoted to the post of Chief Purser L1011 on 18th September 1987. The post was retitled to Inflight Service Manager on 1st April 1999 and she remains in the same position to date. She is required to perform duties in air and on ground as Cathay Pacific directs. + +Becky is a monthly paid cabin crew. She receives a basic salary and title allowance of HK$23,883 and HK$11,501 respectively each month. In addition, she receives various allowances such as LDA and OA. + +By 2002 Becky has served Cathay Pacific for more than 10 years and therefore she is entitled to 5 weeks' paid annual leave and 94 Guaranteed Days Off ("GDOs") each year. + +Additionally, Cathay Pacific provides Becky with the following days without work :- + +(a) Short Break - A period, at or away from base, of at least 34 hours and including 2 local nights during which a crew members are not required to perform any duty. +(b) Stop over in outports - A period commencing after the scheduled arrival time of crew at an outport until 60 minutes before the scheduled departure time. Crew members are not required to perform any duty during the stop over. +(c) Standby duty also known as reserve duty (without being called out) – Crew members are scheduled for standby duty period specified on the front sheet of the roster. The actual period scheduled varies from roster to roster. Crew members will be notified within their standby period to operate a flight if it is required. +(d) Guaranteed Days Off ("GDOs") - these are essentially days without work and are further explained below. + +Clause 16(C) of Conditions of Service 1986 (“COS 1986”) provides :- +"Guaranteed Days Off (GDO) - the annual GDO count for cabin crew on line flying will be based on two days off per week less the period of the cabin crew member's annual leave entitlement, i.e. those cabin crew entitled to three weeks annual leave per year will be entitled to 98 GDO's, those cabin crew with four weeks annual leave per year will be entitled to 96 GDO's and those cabin crew entitled to five weeks annual leave will be entitled to 94 GDO's. +Cabin crew required to operate on a 'G' day will be given the option of having another 'G' day at a mutually convenient time or payment at the rate of HK$40 per flying hour for the duration of the flight. Such payment will be made only for the first 24 hours involved. If payment is made then these GDOs will be deducted from the annual GDO entitlement. + +Rules contained in Operations Manual. Volume 1 Part 2 will apply." + +Wu Yee Mei Vera ("Vera") +By a letter of appointment, dated 12th June 1995, Vera joined Cathay Pacific as a cabin attendant. She was promoted to the post of purser on 1st December 2000 and remains in the same position to date. She is required to perform duties in air and on ground as Cathay Pacific directs. + +Vera is a monthly paid cabin crew. She receives a basic salary and title allowance of HK$20,139 and HK$2,370 respectively each month. In addition, she receives various allowances such as LDA and OA. + +Between June 1995 and May 2000, Vera is entitled to 3 weeks' paid annual leave and 98 GDOs each year. Between June 2000 and May 2005, she is entitled to 4 weeks' paid annual leave and 96 GDOs each year. By June 2005, she is entitled to 5 weeks' paid annual leave and 94 GDOs each year. + +Additionally, Cathay Pacific provides Vera with the following days without work :- +(a) Short Break; +(b) Stop over in outports; +(c) Standby duty also known as reserve duty (without being called out); +(d) Guaranteed Days Off ("GDOs") (see explanation below). + +Clause 13(b) of Conditions of Service 1993 (“COS 1993”) provides :- +"Those Cabin Attendants entitled to three weeks annual leave per year will be entitled to 98 GDOs, those Cabin Attendants entitled to four weeks annual leave per year will be entitled to 96 GDOs and those Cabin Attendants entitled to five weeks annual leave will be entitled to 94 GDOs. In any of the above case, the number of GDOs granted includes days off in lieu of the statutory holidays to which a Cabin Attendant would otherwise be entitled pursuant to the Employment Ordinance of Hong Kong" + +The details of the Short Break, Stop over in outports, Standby duty also known as reserve duty and GDOs are the same in Vera's case as in Becky's case. + +Ho Kit Man Jenny ("Jenny") +By a letter of appointment, dated 19th January 2005, Jenny joined Cathay Pacific as a Flight Attendant of the Inflight Services Department and she remains in the same position to date. She is required to perform duties in air and on ground as Cathay Pacific directs. + +Cathay Pacific pays Jenny Minimum Guaranteed Flying Pay ("MGFP") at the value of 70 Block Hours (see explanation below) i.e. 70 hours X HK$146.4 per hour = HK$10,248 per month. + +The payment structure of Jenny is set out in Clause 3 of the COS 2003, Clause 3.1 of which provides :- +"Salary +Cabin Attendants will (subject to any provisions stated in the Letter as to probation or otherwise) receive a salary calculated on a monthly basis. + +Salary will be calculated with reference to the Minimum Guaranteed Flying Pay. If the total value of a Cabin Attendant's Block Hours and Credits in the relevant month exceeds the Minimum Guaranteed Flying Pay, he or she will receive a salary calculated by reference to the actual Block Hours flown and Credits earned in that month. + +The applicable payment rate of a Block Hour, and the number of Block Hours assigned to Cabin Attendants, will be determined by the Company from time to time and notified to the Cabin Attendant. + +For the purposes of these COS: +Block Hours are the hours between Departure Time and Arrival Time (or otherwise, as amended or determined by the Company in its absolute discretion from time to time). + +Credits comprise : +(i) Work Credits : these are credits received for absences from flight duties by reason of, for example, Reserve Duty or Special Duties; and + +(ii) Leave Credits : these are credits received for absences from flight duties by reason of leave. Leave Credits may include payment additional to the paid time off that a Cabin Attendant receives as such leave pursuant to these COS. (However, for the avoidance of doubt, the Company's use of a formula which records Leave Credits for the purpose of computation of salary does not create any entitlement to payment additional to the actual paid time off taken, except and to the extent determined by the Company from time to time.) + +The type and value of credits available to Cabin Attendants will be determined by the Company and notified to the Cabin Attendants, from time to time, having regard to relevant Company Policies." + +Credits that Jenny may earn include :- +(i) Work Credits : Jenny earns credits for absences from flight duties by reason of :- +Training - 4.65 credit hours for each calendar day of training; +Special duties - 4.65 credit hours for each calendar day of special duties; +Standby duties - 1 credit hour for each 3 hours of standby duties; +Duty travel - 0.5 credit hour for each 1 hour of duty travel. + +(ii) Leave credits : Jenny earns 3.25 credit hours for each day of leave taken. + +The credit of 3.25 block hours for each day of leave is calculated by reference to the following mathematical formula. Cathay Pacific assumes that a cabin crew works 85 credit hours (inclusive of Block Hours flown) and 25.5 ground duty hours (see explanation in paragraph 83 below) each month. Ground duty hours worth 50% of Block Hours. Therefore, total monthly credit hours for such crew member are :- + 85 + (25.5 ÷ 2) = 97.75 +This figures is then averaged over 30 days to give a standard credit of 3.25 block hours for each day of leave taken. + +In addition, Jenny receives various allowances such as OA, GDA and DFSC. Jenny does not receive LDA, whilst Becky and Vera do not receive GDA or DFSC. + +With less than 5 years’ service, she is entitled to 21 days' paid annual leave. + +Additionally, Cathay Pacific provides Jenny with the following days without work :- +(a) Short Break +(b) Stop over in outports +(c) Standby duty also known as reserve duty (without being called out) +(d) Days Without Duties - see explanation below. + +The details of Short Break, Stop over in outports and Standby duty are the same in Jenny’s case as in Vera and Becky’s case. + +Clause 2.4(3) of the Conditions of Service 2003 (“COS 2003”) provides :- +"Days Without Duties +The company will periodically issue rosters for Cabin Attendant Days Without Duties. These rosters will apply for the stated time period. +The Days Without Duties will include any statutory holidays (or alternative holidays) and rest days, as the case may be, to which a Cabin Attendant is entitled under the Employment Ordinance. +For operational reasons, the Company reserves the right to require Cabin Attendants to work on any Day Without Duties subject to and in accordance with the provisions of the Employment Ordinance." + +The Issues +Despite that Becky and Vera are employed under different COS, they are in the same position for the purpose of the present claims. They contend that Cathay Pacific should include OA and LDA in the calculation of their ALP and SHP in accordance with the old ss.41 and 41C of the Employment Ordinance (“EO”). Jenny contends that Cathay Pacific should include OA, GDA and DFSC in the calculation of her ALP and SHP in accordance with the old ss.41 and 41C of EO. Jenny also contends that as she is hourly paid, Cathay Pacific has not paid her any SHP on her statutory holidays. + +Cathay Pacific denies that OA, LDA, GDA and DFSC are required to be included in the calculation of SHP and ALP. Cathay Pacific also contends that Jenny is paid a monthly salary that is calculated with reference to the MGFP and, therefore, it has already paid Jenny’s SHP. + +The Employment Ordinance ("EO") +The following provisions are relevant to the present claims : +“2. Interpretation +(1) In this Ordinance, unless the context otherwise requires + "wages"(工資), subject to subsections (2) and (3), means all remuneration, earnings, allowances including traveling allowances and attendance allowances, attendance bonus, commission, overtime pay, tips and service charges, however designated or calculated, capable of being expressed in terms of money, payable to an employee in respect of work done or to be done under his contract of employment, but does not include +(d) any sum payable to the employee to defray special expenses incurred by him by the nature of his employment;” + +The old s.41 of the EO (prior to the changes introduced by the Employment (Amendment) Ordinance ("EAO") in July 2007) provides : +"41 Rate of Holiday Pay +(1) Holiday pay shall be a sum equivalent to the wages which the employee would have earned on a full working day. + +(2) Notwithstanding subsection (1), where an employee is employed on piece rates or where the daily wages of an employee vary from day to day, the holiday pay shall be a sum equivalent to the average daily wage earned by the employee, and for the purposes of this subsection the average daily wage shall be the average of the daily wages earned by the employee on each day on which he worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the holiday or first day of the holiday." + +The old s.41C of EO (prior to the changes introduced by the EAO) provides : +"41C. Rate of Annual LeavePay +(1) Annual leave pay shall, subject to subsection (2), be a sum equivalent to the wages which the employee would have earned if he had worked every day during the period of annual leave. + +Where an employee is employed on piece rates or where the wages of an employee vary from day to day, the annual leave pay shall be calculated by reference to the average daily wage earned by the employee, and for the purposes of this subsection the average daily wage shall be the average of the daily wages earned by the employee on each day on which he worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the first day of the annual leave or on the day on which the contract of employment terminates, as the case may be." + +Following the introduction of the EAO, the provisions for calculating SHP and ALP are :- + (i) SHP +"41. Rate of Holiday pay +(1) For the purposes of subsections (2), (3) and (4), "wages"(工資) includes any sum paid by an employer in respect of - +(a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; +(b) a day of leave taken by the employee with the agreement of his employer; +(c) a normal working day on which the employee is not provided with work; +(d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap 282). + +(2) The daily rate of holiday pay is a sum equivalent to the daily average of the wages earned by the employee during - +(a) a period of 12 months immediately before the holiday or first day of the holidays (as appropriate); or +(b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the holiday or first day of the holidays (as appropriate), the shorter period. + +(3) In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period - +(a) any period therein for which the employee was not paid his wages or full wages by reason of - +(i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee; +(ii) any leave taken by the employee with the agreement of his employer; +(iii) his not being provided by his employer with work on any normal working day; or +(iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap 282); and +(b) any wages paid to him for the period referred to in paragraph (a). + +(4) For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (3). +….." + +(ii) ALP +"41C Rate of annual leave pay + (1) For the purposes of subsections (2), (3) and (4), "wages"(工資) includes any sum paid by an employer in respect of - +(a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee; +(b) a day of leave taken by the employee with the agreement of his employer; +(c) a normal working day on which the employee is not provided with work; +(d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap 282). +(2) The daily rate of holiday pay is a sum equivalent to the daily average of the wages earned by the employee during - +(a) a period of 12 months immediately before the holiday or first day of the holidays (as appropriate); or +(b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the holiday or first day of the holidays (as appropriate), the shorter period. + +(3) In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period - +(a) any period therein for which the employee was not paid his wages or full wages by reason of - +(i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee; +(ii) any leave taken by the employee with the agreement of his employer; +(iii) his not being provided by his employer with work on any normal working day; or +(iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap 282); and +(b) any wages paid to him for the period referred to in paragraph (a). + +(4) For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a fraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (3). +….." + +The EAO +Since the EAO takes effect, Cathay Pacific has included LDA, GDA and DFSC in calculating SHP and ALP. OA is not included in the calculation of SHP and ALP even after the introduction of the EAO. + +Analysis and Findings +OA +Becky is employed under Conditions of Service 1986 ("COS 1986"). + +Clause 5(C) of COS 1986 provides : +Outport Allowance +"Overnight, meal and laundry allowances will be paid in accordance with the rates laid down in Operations Manual, Volume 1, Part 4." + +OA is known as "Overnight allowances" in Operations Manual, Volume 1, Part 4, which provides (among other things) : +"Overnight allowances are reviewed bi-annually and on any change of hotel. They are intended to cover reasonable out-of-pocket expenses. + +Vera is employed under Conditions of Service 1993 ("COS 1993"). + +Clause 15(ii) of the COS 1993 provides, +"Whilst Cabin Attendants are on duty in outports, they will receive overnight, meal and laundry allowances in accordance with the policy and rates laid down in Operations Manual, Vol. 1 Part 2 and 4 as amended from time to time and/or such other allowances or meal arrangements a published from time to time. + +Jenny is employed under Conditions of Service 2003 ("COS 2003"). + +Clause 1.3 of the COS 2003 provides :- +"In addition to the duties and obligations set out in these COS, the Cabin Attendant is also required to comply with Company Policies." + +Clause 4.1 of the COS 2003 provides :- +"4.1 Outport facilities and reimbursement +Subject to Company Policies in force from time to time, a Cabin Attendant who is required to stay at an Outport between flying duties may be provided: + +(i) rest facilities and accommodation; and + +(ii) reimbursement of expenses for necessary meals and other expenditure incurred during the stay. +4.2 Other benefits +A Cabin Attendant may be entitled or eligible to receive other benefits offered or provided by the Company in accordance with the relevant Company Policies." + +Clause 10 of the COS 2003 provides that "Company Policies" means :- +"the provisions of that document produced by the Company entitled the Operations Manual, as in force from time to time, and any other policies, schemes, rules and regulations relating to or arising from employment which may be issued, and amended or varied by the Company in its discretion from time to time. Such Operations Manual, policies, schemes, rules and regulations are collectively referred to in these COS as "Company Policies", and references in these COS to Company Policies shall where the context permits be construed accordingly." + +Clause 5.1 of the Operations Manual, Volume 6, Part 1 provides :- +"At each outport a schedule of meal and overnight allowance has been established. These allowances are reviewed bi-annually in order to meet price changes. The allowances are intended to meet reasonable costs. Upon arrival at an outport where a stopover is scheduled crew members will be issued with the cash allowance by the hotel in accordance with the schedule, and based on a telex from Crew Control." + +Although their entitlement is arising from difference contractual provisions, the details of OA are the same in all Claimants’ case. + +OA is calculated by reference to a formula agreed with the Fight Attendants Union (“FAU”) that takes account of the actual cost of meals and services at the relevant crew hotel. The amount of each item of OA is determined by reference to the costs in the designated crew hotel in each port. In practice, reviews of the allowance are held twice a year and adjustments will also be made whenever there is a change in crew hotel. The allowance may decrease as well as increase. OA includes :- +meal allowance; +allowance in case of delayed and rescheduled flight; +incidental allowance ("IA"); +laundry allowance; +duty travel expenses and management crew allowance; +taxi allowance; and +Indian port allowance. + +Meal allowance will be paid if crew members are rostered on flight that requires a stopover at an outport that exceeds 2 hours and the stopover includes any part of the following period : +(i) Breakfast - 0600 to 0859; +(ii) Lunch - 1200 to 1359; +(iii) Dinner - 1800 to 2159. + +When the stopover time falls between 0600-0859 of the local time, crew members will be paid an amount in respect of breakfast. The calculation is based on the hotel coffee shop prices for full American breakfast consists of fruit juice, two eggs with ham or bacon or sausage, toast with jam or marmalade and coffee, or the breakfast set rate covering all the above items, whichever the least expensive. + +When the stopover time falls between 1200-1359 of the local time, the amount paid in respect of lunch will not be less than a set lunch menu consisting of soup of the day, a chicken dish, medium priced dessert and coffee in the medium priced Western style restaurant in the crew hotel. + +When the stopover time falls between 1800-2159 of the local time, crew members will be paid an amount in respect of dinner. The calculation of the amount in respect of dinner is based on the crew hotel medium priced Western style restaurant. If no medium restaurant exists in the hotel then the prices will be based on the most expensive hotel coffee shop price or the lower end of the top class hotel restaurant. The amount covers a medium priced steak, a medium priced dessert and coffee in a set menu. + +Delayed flights allowance will be paid if crew members are in the airport and the flight delays for more than 30 minutes. Operations Manual Volume 1, Part 4, Clause 2.1C(a) provides : +"Delayed Flights +If the crew are at the airport, refreshment chit or reimbursement up to a maximum of HK$90 will be authorized if the delay exceeds 30 minutes." + +As to rescheduled flight allowance, if crew members are required to stay at the airport, meal vouchers will be given. When crew members are required to stay at the hotel, meal allowance will be provided if the rescheduled stopover includes any part of the period stated in the above. + +In respect of IA, Clause 2.1(D) of Operations Manual, Volume 1, Part 4 provides : +"D. Incidental Allowance +An incidental allowance will be paid when a stopover exceeds 6 hours. If a stopover exceeds 30 hours, a second incidental allowance will be paid. A third incidental allowance will be paid if a stopover exceeds 54 hours and so on. During a continuous duty period if a stopover exceeds 6 hours an incidental allowance will be paid." + +Crew members on "shuttle" duties are deemed to be on continuous duty for the purpose of qualifying for overnight allowance. An example of a "shuttle" duty is Paris-Manchester-Paris. No allowance is paid for crew members operating shuttle duties from their homeports. + +IA is calculated based on two times flag fall in an air-conditioned taxi to and from places for a beer or drinks, eight km or five miles total, two small local beers in the crew hotel bar or crew lounge and a tip for one small suitcase. + +The provision of IA is similar to that of "Overnight Allowance" in Clause 5.5 of the Operations Manual, Volume Part 1. There is no provision on IA in Operations Manual, Volume 6 Part 1. + +Laundry allowance is paid on the 3rd night and consecutive nights away from home base. The laundry allowance calculation is based on costs in the crew hotel to launder one shirt, one undershirt, one pair of underpants, one pair of socks and one handkerchief. + +Taxi allowance will be paid if crew members incur cost on taxi journey between the airport and the hotel. Taxi allowance will not normally be paid when Cathay Pacific or the hotel provides transport or where the hotel operates regular shuttle bus service between the airport and the hotel. + +Indian port allowance is simply the overnight allowances where crew members fly into Indian ports. The only difference is that the allowance for Indian ports is paid in Hong Kong instead of overseas. + +The parties dispute where crew members are put in a hotel that is more expensive than the designated crew hotel in an ad hoc situation, if they want to receive OA that is calculated according to the higher of the different hotel tariffs, whether receipts are required to prove that extra out-of-pocket expenses are incurred. The Claimants testified that in their personal experience, receipts were never required. Ms Li Ka Lia Elizabeth, Cathay Pacific’s representative do not have personal experience in the matter. I accept that the Claimants are honest witnesses and their testimony is reliable. After having carefully considered all evidence, I accept that in such case, in practice, receipts will not be required. + +Usually, crew members are not required to demonstrate that they actually incur any expense while working away from home base. + +The Claimants produced a 1994 Year and Review Agreement between Cathay Pacific and FAU the contents of which show that there were discussions to change the manner of calculation of OA from meals basis to time basis. In this respect, however, no change has been agreed. + +The rate of LDA(A) is four times more than that of LDA(B) (See paragraph 86 below). Becky explained that it is because crew members do not earn OA when they perform duties on day turnaround and split duty flights. Becky said that the purpose of the division being to compensate crew members’ loss of OA, it shows that Cathay Pacific recognizes that OA is a source of income of crew members. + +Cathay Pacific denies that OA is required to be included in calculating SHP and/or ALP on the following basis : +(a) OA is not "wages" within the definition of "wages" in s.2 of the EO as it falls within the exception in subparagraph (d) of s.2 being a "sum payable to the employee" to defray special expenses incurred by him by the nature of his employment", and + +(b) further and in the alternative, if OA is "wages" under s.2 of the EO (which is denied): + +(i) OA is not "wages" which the Claimants "would have earned" for the purposes of ss.41(1) and 41C(1) of the EO, and + +(ii) OA is not "daily wages" for the purposes ss.41(2) and 41C(2) of the EO and/or it is impossible to calculate OA on a daily basis. + +Firstly, I deal with the question on whether OA is wages within the definition of "wages" in s.2 of the EO. + +The Claimants contend that OA is wages because it is described in the COS and the Operations Manual as an item of allowance and that it is represented by Cathay Pacific in its advertisements as forming part of a cabin crew's income. + +The above considerations relate to how the parties label OA. It is trite that the court does not only look at the label of a payment to determine its true nature. The label is not conclusive. It is not what the parties call it but what it is in substance that matters. One has to look into the nature of the payment, the reasons therefore and the circumstances under which the payment is made. + +In practice, the Claimants have never paid salary tax on income earned by OA. + +OA (except for the allowance for Indian ports) is paid overseas. Due to foreign exchange restrictions, allowance for Indian ports is paid when crew members report duty at the Hong Kong airport as they start the flying duty. In my view, the above arrangement is congruent with the intention that OA is to cover out of pocket expenses. + +OA is calculated by reference to a formula agreed with FAU, which takes account of the actual cost of meals and services at the relevant crew hotel in each port. Periodical reviews of the allowance are held. It appears that the amount of OA payable is a genuine pre-estimate of what the amount of the expense is likely to be. + +I am aware that OA forms a substantial part of the Claimants' total income and it arises in the course of flying duties performed by them at outports. + +After having carefully considered all evidence, I accept that the purpose of OA is to cover meals and miscellaneous out-of-pocket expenses relating to the Claimants' layover overseas between flying duties. + +OA is however paid in the form of a fixed allowance instead of an actual reimbursement against receipts and, it is on this basis (and on the basis that the allowance is non accountable rather than an accountable reimbursement) that the Claimants seek to argue that OA constitutes wages within the meaning of s.2 of the EO and, does not fall within exception (d). + +Cathay Pacific contends that the meaning of the words "to defray" means "to reimburse" or "to provide money to cover the costs or expenses". Therefore, the exception in subparagraph (d) applies to a non-accountable allowance as well as to an allowance that is available on a reimbursement basis only. + +Cathay Pacific lends support from the judgment of Deputy High Court Judge To in Star Express Limited v Cheng Tak and Ors, Labour Tribunal Appeal No. 86/1998, unreported, 11 May 1999. In that case, it was held that on the basis that pre-determined and non-accountable fixed monthly payments made to drivers of tourist coaches to cover parking fees were genuine pre-estimates of what the amount of the parking fees was likely to be, such payments constituted the reimbursement of expense and did not constitute "wages". + +The Claimants contend that the term "special expenses" in subparagraph (d) to the definition of "wages" in s.2 of the EO denotes something that is of a non-recurrent nature and should be an one-off expenditure pertinent to the nature of the employment. I note that there is no requirement under the EO that such "special expenses" should be non-recurrent in nature. Though some OA components such as meals and traveling expenses are daily expenses that are incurred whether the Claimants are inside or outside Hong Kong, the Claimants should accept that probably they will incur extra meal and traveling expenses when they stay overseas. Plainly such extra expenses can be regarded as special expenses incurred by them by the nature of their employment. + +During the trial hearing, the Claimants did not pursue the contention that as IA does not relate to out-of-pocket expenses, IA is a hardship allowance. Anyway, such assertion is not borne out by the relevant provisions of the COS and the Operations Manual. In my view, there is no suggestion that IA is in the nature of a hardship allowance as alleged by the Claimants. + +After having carefully considered all evidence, I hold that OA is not "wages" within the definition of s.2 of the EO because it falls within the exception in subparagraph (d) being "a sum payable to the employee to defray special expenses incurred by him by the nature of his employment." + +I do not need to deal with the second leg of Cathay Pacific's argument (See para. 64(b) above). + +LDA and GDA +The details of LDA and GDA are as follows. + +Clause 5(A) of the COS 1993 provides :- +"A Line Duty Allowance will be paid at the rate published from time to time from each flying duty hour. This allowance will be paid to all Cabin Attendants for each hour spent on flying duty. It is not part of basic salary and will not be paid for any other duty or non-flying activities including sick leave travel. +The Line Duty Allowance will be calculated and paid on the basis of Flying Duty Period (FDP) as defined in the Operations Manual Vol. 6." + +Clause 3.2 of the COS 2003 provides :- +"Allowances +A Cabin Attendant may also receive, in addition to salary, other payments or allowances, in respect of any special or other duties or circumstances arising from the Cabin Attendant's employment, in accordance with any Company Policies or as determined by the Company's discretion. +Such allowances may include … [Ground Duty Allowance]." + +Clause 3.2(A) of the COS 2003 provides that GDA is payable for ground duty hours spent on ground, being :- +“(i) the time between when Cabin Attendants are required by the Company to report for duty and the time from which the aircraft commences to move whether under its own power or not ("Departure Time"); + +(ii) 15 minutes after the time when the aircraft is finally stationary after landing ("Arrival Time") in the last single sector a cabin crew operates prior to the Rest Period ("the Final Sector") or (as the case may be), in situations of extended delay after the Arrival Time where a cabin crew is required to remain on an aircraft in excess of one hour after arrival in the Final Sector, the actual time the cabin crew is required to carry out duties in relation to the extended delay; and + +(iii) save in relation to extended delays which are covered by paragraph (ii) above, within a Flight Duty Period any time on ground which is not considered as Rest Period.” + +Crew members' duty comprises of time on ground and time in air. LDA is payable due to time in air (line duty hours). GDA is payable due to time on ground preparing to fly (ground duty hours). They both relate to duty time that is dependant on a number of different factors. While LDA and GDA are different, I consider that I can deal with them at the same time for the purpose of the present claims. + +In the Statement of Defence filed in these proceedings, Cathay Pacific said that as the COS provides that the Claimants “may” be entitled to OA, LDA, GDA and DFSC, there is a strong argument that the Claimants does not have any contractual entitlement to the same. During the trial hearing, Cathay Pacific's representative accepted that LDA and GDA are part of the Claimants' wages, although she maintained that they are not wages that the Claimants would have earned for the purpose of the old ss.41(1) and 41C(1) of EO. There is no provision in COS 1986 that provides for entitlement to LDA. Clause 5(A) of COS 1986 provides that Becky was entitled to Inflight Meal Compensation Allowance. Clause 5(B) of COS 1986 provides that Becky was entitled to Ground Allowance. Loosely speaking, since about 1988, the Inflight Meal Compensation Allowance and Ground Allowance have been replaced by LDA. Clause 5(A) of COS 1993 provides Vera’s entitlement to LDA. Details of when LDA is payable are set out in Clause 6 of the Operations Manual Volume 6, Part 1. Clause 3.2 of COS 2003 provides Jenny’s entitlement to GDA. Details of when GDA is payable are set out in Clause 3.2(A) of COS 2003. After having carefully considered all evidence, I consider that Jenny receives GDA pursuant to Company Policies rather than Cathay Pacific’s discretion. On the whole, LDA and GDA are not of a gratuitous nature or payable only at Cathay Pacific's discretion. LDA and GDA represent a component in the Claimants' wages for work that they have done. In my view, it is indisputable that LDA and GDA are part of the Claimants' wages. The real issue is whether they are wages that the Claimants would have earned for the purpose of the old s.s41(1) and 41C(1) of the EO. + +LDA is paid on two scales that are LDA(A) and LDA(B). LDA(A) is payable for day turnaround and split duty flights at HK$60.5 per hour. LDA(B) is payable for all other flights at HK$15.125 per hour. Such division is again a deal struck between Cathay Pacific and FAU. + +Becky and Vera receive LDA on the total number of line duty hours that they operate in an aircraft. LDA is calculated based on the total number of line duty hours that starts when a cabin crew reports duty and finishes on blocks or engines off on the final sector. The duty hours start when the cabin crew reports duty and finishes 30 minutes after on blocks or engines off on final sector. The cabin crew will have a 30 minutes debriefing after the engines are off. Therefore, the line duty hours are 30 minutes less than the duty hours. LDA varies based on the flight that the cabin crew is rostered to operate and the length of time spent on a flight. + +LDA is calculated down to the minute. No two flights produce the same amount of LDA. There are various factors that affect the number of the line duty hours of a flight and therefore LDA a cabin crew earns. These factors include weather, wind speed, location of the gate, delay or cancellation of flights etc. + +When a flight is cancelled due to adverse weather, the cabin crew will not earn any LDA even if she is rostered on a flight on that day. If the flight is delayed because of some technical problems, the line duty hours will be longer and the cabin crew will earn more LDA. + +The rate of GDA is HK$73.2 per hour. + +Jenny receives GDA on the total number of ground duty hours. Very rarely would two flights depart at the same time. Again, factors such as weather, delay or cancellation of flights etc affect the Departure Time of a flight and therefore the GDA a cabin crew earns. + +If a cabin crew reports for duty and the flight is subsequently cancelled due to adverse weather, the cabin crew will earn GDA for the period between the time she reports duty and the time Cathay Pacific announces that the flight is cancelled. The ground duty hours could be longer or shorter than the period between the time required to report duty and the scheduled departure time. If the flight is cancelled before the time required to for report duty, the cabin crew will not receive any GDA. If the flight is delayed because of, say, some technical problems, the ground duty hours will be longer and the cabin crew will receive more GDA. Some flights depart earlier than others. There is no certainty on the number of ground duty hours. + +A cabin crew will not earn any LDA or GDA if she reports sick on a day that she is rostered with flying duties. Crew members may swap duties among themselves and Cathay Pacific has the right to alter, vary or substitute the roster issued to a crew, as it considers appropriate to meet its operational requirements. + +Cathay Pacific pays LDA and GDA monthly at the end of the following month. + +Cathay Pacific contends that LDA and GDA are not "wages" that the Claimants "would have earned", rather it is something that the Claimants "might have earned" because there is no certainty on the amount of LDA or GDA that the Claimants will earn each month; that both LDA and GDA are paid only if a cabin crew has performed flying duties and that the Claimants are not always assigned with flying duties. + +After having carefully considered all evidence, I accept that LDA and GDA should not be regarded as wages that would have earned for the purpose of ss.41(1) and 41C(1) of the old EO because there is no workable mode of calculation for working out the amount of LDA and GDA that the Claimants would have earned during the leave period. + +I now turn to the question on whether LDA and GDA should be included in the calculation of the ALP and SHP in accordance with the old ss.41(2) and 41C(2) of the EO. In Lam Pik Shan v. Hong Kong Wing On Travel Services Ltd., CACV 394/2007, unreported, 9 May 2008, the Court of Appeal upheld the decision of the High Court that tips received by the Plaintiff (Respondent), a travel escort, should be included in the calculation of ALP and SHP. In the paragraph (1) of the Judgment, Hon. Rogers VP held, +"In that judgment (Lisbeth Enterprises Ltd. v. Mandy Luk (2006) 9 HKFAR 131) the Court of Final Appeal came to the conclusion that the provisions in the Employment Ordinance, Cap. 57 relating to commission were unworkable where the commission was calculated at rates that varied on a monthly basis. That is not the situation in this case, which relates to tips which are based on a daily rate. In the second place it is quite clear that the legislature intended that tips should be taken into account in calculating wages. That is the clear intention emerging from the Ordinance itself. I am fortified in that conclusion because in passing the Employment (Amendment) Ordinance 2007, and in particular sections 10-15, the legislature has removed any difficulty there might be in making the relevant calculations. In the absence of the new provisions, had there some supposed difficulty in the method of calculation, it would have been the function of this court to give effect to the manifest intention of the legislature that tips should be taken into account in the calculation." + +In the following paragraphs, Hon. Le Pichon JA held, +"20. Prima facie, tips received from tour participants would fall squarely within the statutory definition of "wages". The real question is whether a workable mode of calculation exists for working out the net tips and whether it can be said to accrue daily. + +21. As already noted, the discretionary nature of tips is not a bar (as distinct from the case of commissions) to their forming part of an employee's wages. Further any discretion in the payment of a tip would be that of the tour participant and not employer i.e. the tour operator. While the amount of tips received per month may vary, depending on a number of factors including the number of days spent escorting tours, the type of tour, the number of persons joining the tours etc., in the present case, these factors do not pose any particular difficulty in the way of calculating daily wages. Not only is the rate of recommended tips made on a per person per day basis, the tips the tour guide/escort had to defray in the foreign country are also expressed in a similar fashion. Even if the tour guide does not receive his tips until the end of the tour, given that the duration of the tour is a fixed number of days, the net tips per day can be said to "accrue" on a daily basis and are readily calculable on the same basis." + + Notably, in Lam Pik Shan v. Hong Kong Wing On travel Services Ltd, the travel escort, like Becky and Vera, received a monthly salary. In Lam Pik Shan v. Hong Kong Wing On Travel Services Ltd, the travel escort was paid tips that were based on a daily rate. In the present case, LDA and GDA are not calculated at daily rate. It seems to me that for the old ss.41(2) and 41C(2) of EO to apply, however, it is not necessary that the wages shall be calculated at daily rate. The old ss.41(2) and 41C(2) of EO apply where an employee is employed on piece rates or where the daily wages of an employee vary from day to day. I hold that LDA is part of Becky and Vera's wages and GDA is part of Jenny's wages. In my view, inasmuch as an employee's wages are calculable daily, the old ss.41(2) and 41C(2) of EO may apply. As Hon Le Pichon JA held, "The real question is whether a workable mode of calculation exists for working out … and whether it can be said to accrue daily". LDA and GDA are calculated by minutes. There should be no difficulty in calculating the LDA and GDA already earned by the Claimants on any given day. Therefore, even if the Claimants do not receive LDA and GDA until the end of the next month, given that LDA and GDA is calculable daily and therefore can be said to accrue daily, in my view, they can be said to be daily wages that vary from day to day. + +In Wong Yin Fong & Others v. ISS Hong Kong Services Ltd [2005] 2 HKLRD 648, Labour Tribunal Appeal 56 of 2003, 17-19 May and 28 June 2005, Court of First Instance, J Lam J held, +"99. Although there are differences between the statutory scheme for rest days and that for annual leave, I think it is equally plain from the statutory scheme as analyzed above that the protection conferred under Pt. VIIIA by way of annual leave is to protect employees from the evils of continuously working without proper opportunity to rest. The Legislature obviously considered that it is important that an employer (p.679) should give an employee proper rest by way of annual leave. This explains the mandatory nature of annual leave, see the observations of A Cheung J in para. 33 of his judgment in Laing & Others v. Lisbeth Enterprises Ltd [2004] 3 HKC 548. Given its paternalistic nature, the statutory scheme strives to achieve through s.41C that an employee will not suffer any accompanying economic loss for not working during the leave period." + +The above-mentioned Judgment was delivered before Lisbeth Enterprises Ltd v Mandy Luk [2006] 9 HKFAR 131. It is worthy of noting that when the case went further to the Court of Appeal, Wong Yin Fong & Others v. ISS Hong Kong Services Ltd [2008] 1 HKLRD 63, 28 November 2007, Court of Appeal, Hon Cheung JA said, +"52. Wong Ping Kong and Lam J's decision in the first instance on section 41C were referred to by the Court of Final Appeal in Lisbeth Enterprises Ltd v. Mandy Luk [2006] 9 HKCFAR 132. In my view the Court of Final Appeal not only has not disapproved of these two cases but has actually approved them." + +Taking that the legislative intention is to achieve through s.41C that employees will not suffer any accompanying economic loss for not working during the leave period, given that s.41 is parallel to s.41C at this end, I am satisfied that Cathay Pacific should include LDA and GDA in the calculation of the Claimants’ ALP and SHP by using the following formulas, in accordance with the old ss.41(2) and 41C(2) of EO : + +ALP - (Total LDA/GDA earned during the month immediately preceding or expiring on the first day of the annual leave or on the day on which the contract of employment terminates, as the case may be) ÷ (Number of working days during the same period) + +SHP – (Total LDA/GDA earned during the month immediately preceding or expiring on the holiday or first day of the holiday) ÷ (Number of working days during the same period) + +I reckon that probably the parties will propound different modes of calculation for working out the number of working days for the purpose of the formulas. Becky and Vera are monthly salaried while Jenny is hourly paid. Does it mean that the whole month immediately preceding or expiring on the holiday or first day of the leave (i.e. 30 or 31 days) should be counted as working days of Becky and Vera? Further or in the alternative, should only the days on which the Claimants are required to perform duties (in air and on ground) be counted as working days; should only the days on which Becky and Vera are required to perform duties in air (but not on ground) be counted as their working days, as LDA is payable due to time in air; should only the days on which Jenny is required to perform duties on ground (but not in air) be counted as her working days, as GDA is payable due to time on ground preparing to fly; should the days during which the Claimants are put on Standby duties be counted as working days; should the days during which the Claimants are put on Stop over in outports be counted as working days; and/or should the days during which Jenny earns Work credits and Leave credits be counted as her working days, for the purpose of the formulas? The parties reserve their respective positions on these questions. I shall leave them to be dealt with when the question of quantum arises. In any case, once these questions are resolved, the parties will have no difficulty in working out the amount that Cathay Pacific is liable to pay in compensation to the Claimants. + +DFSC +Cathay Pacific would assign hourly paid crew members to conduct inflight duty free sales. Once an hourly paid crew is assigned, she has no choice but to perform the same as part of her duties. + +The details of Duty Free Sales Commission (“DFSC”) are set out in Cathay Pacific's Inflight Sales Commission Policy. DFSC is separated into Individual Commission, Team Award, BC Star Award and ISM Star Award. Individual cabin crew earns a flat rate of 3.5% of sales made by her. The commission is paid at the end of the following month. Team Award is given to the top team with the best inflight sales performance. Crew members of the top team receive gifts as prizes. BC Star Award is given to top performers. ISM Star Award is given to the top Inflight Services Managers. + +During the trial hearing, Cathay Pacific’s representative accepted that DFSC is part of Jenny's wages. After having carefully considered all evidence, I am satisfied that DFSC is not of a gratuitous nature or payable only at Cathay's discretion. I hold that DFSC represents a component in Jenny's wages for work that she has done and is part of her wages. + +Cathay Pacific contends that DFSC is not "wages" that Jenny "would have earned", rather it is something that Jenny "might have earned" because : +(1) Some, but not all, of the flights have inflight sales. There is no certainty that Jenny will be rostered on a flight that has inflight sales; + +(2) Not all crew members are entitled as of right to earn DFSC. The computer may assign a crew to be responsible for inflight sales and the Inflight Service Manager can always assign another crew to perform inflight sales; + +(3) The entitlement to DFSC depends on the flight Jenny is rostered on and whether or not she is assigned with the inflight sales duty. + +After having carefully considered all evidence, I accept that DFSC should not be regarded as wages that would have earned for the purpose of the old ss.41(1) and 41C(1) of the EO because there is no workable mode of calculation for working out the amount of DFSC that Jenny would have earned during the leave period. + +I now turn to the question on whether DFSC should be included in the calculation of the ALP and SHP in accordance with the old ss.41(2) and 41C(2) of the EO. In my view, inasmuch as an employee’s wages are calculable daily, the old ss.41(2) and 41C(2) of the old EO may apply. In Lisbeth Enterprises Ltd v Mandy Luk, the employee who worked in a health and beauty club was entitled not only to a monthly salary but also to a commission on sales made by her. The contractual commission was calculated on a monthly basis, payable according to fluctuating monthly results on a sliding scale. Jenny’s case is different from Lisbeth Enterprises Ltd v Mandy Luk in that Jenny receives DFSC on the flat rate of 3.5% of the sales made by her. The upshot is that there would be no difficulty in calculating the amount of DFSC already made by Jenny on any given day (disregarding the Team Award gifts, BC Star Award and ISM Star Award), and therefore it can be said to accrue daily. Even if the Claimants do not receive DFSC until the end of the next month, given that DFSC can be said to accrue daily, it is daily wages that vary from day to day. Further or alternatively, apparently Jenny is employed on piece rate when she performs the duty free sales duty. By reason of matters aforesaid, I hold that Cathay Pacific should include DFSC in the calculation of Jenny's ALP and SHP by using the following formulas, in accordance with the provisions of the old ss.41(2) and 41C(2) of the EO : + +ALP - (Total DFSC earned during the month immediately preceding or expiring on the first day of the annual leave or on the day on which the contract of employment terminates, as the case may be) ÷ (Number of working days during the same period) + +SHP – (Total DFSC earned during the month immediately preceding or expiring on the holiday or first day of the holiday) ÷ (Number of working days during the same period) + +Again, I shall deal with those questions regarding the mode of calculation for working out the relevant number of working days for the purpose of the formulas when the question of quantum arises. + +Has Jenny received any SHP at all? +Clause 2.4(3) of the COS 2003 provides :- +"Days Without Duties +The Days Without Duties will include any statutory holidays (or alternative holidays) and rest days, as the case may be, to which a Cabin Attendant is entitled under the Employment Ordinance. + +Clause 5.3 of the COS 2003 provides :- + "Statutory Holidays and Rest Days +Statutory holidays and rest days are allocated to Cabin Attendants as Days Without Duties (please refer to paragraph 2.4(3) of these COS, above.)" + +Cathay Pacific intimates that, in addition to the Days Without Duties, Cathay Pacific also uses Standby duties (Jenny earns 1 credit hour for each 3 hours of Standby duties) to discharge its obligation to provide Jenny with statutory holidays under the EO. I do not agree. It is clear from the above-mentioned contractual provisions that Cathay Pacific uses Days Without Duties to discharge its obligation to provide Jenny with statutory holidays under the EO. + +Unlike to the other two Claimants who are monthly paid crew, Jenny's wages are calculated on the numbers of flying hours she is able to achieve on a monthly basis. Her salary structure is not governed by the Master Pay Scale like the monthly paid crew members do. She does not enjoy the benefit of automatic annual increment along the Master Pay Scale. + +Generally, Jenny is rostered to not less than the value of 70 hours of flying duties each month. If she wants to earn more, she may swap flights with colleagues to fly more, thus earning the extra flying hours which are all calculated on the basis of HK$146.4 per hour. In practice, Jenny swapped flights with colleagues to fly less, thus receiving only the MGFP in many months. + +Her wages are linked to performance of flying duties, Work Credits and Leave Credits. Therefore, Jenny contends that Cathay Pacific has not paid her any SHP at all. + +Cathay Pacific contends that according to Clause 3.1 of the COS 2003, Jenny receives a monthly salary that is, rather than a specified amount in her contract, calculated with reference to MGFP that is paid regardless of the work or duty she may or may not have undertaken or been assigned to her during the month; that MGFP is payable due to time on duty as well as time not on duty in the same way as a worker is paid a basic monthly salary but may also be entitled to monthly overtime if she works extra hours in that month. + +Clause 3.1 of the COS 2003 provides that Jenny will receive salaries calculated on a monthly basis. Having salaries calculated on a monthly basis does not mean that she is monthly salaried. Employees employed at piece rate or hourly rate may receive salaries calculated on a monthly basis. In my view, the payment structure of Jenny plainly shows that she is an hourly paid employee. + +Cathay Pacific pays Jenny MGFP at the value of 70 Block Hours, as it assumes that a cabin crew works 85 credit hours (inclusive of Block Hours flown) and 25.5 ground duty hours each month. It demonstrates that the MGFP relates to crew members’ flying duties rather than the Days Without Duties. + +For example, when an hourly paid cabin crew performs more than 70 flying hours in a month, she is paid by the actual flying hours plus any credits earned. It means that she will not reap any benefit from the MGFP, notwithstanding that Cathay Pacific may well provide her with Days Without Duties in that month. + +An hourly paid cabin crew is not paid for those Days Without Duties that coincide with the statutory holidays. In other words, in a month if there is a statutory holiday, she is still paid 70 flying hours plus the extra flying hours she has performed (if any) without any SHP. In my view, the corollary is that she does not receive any SHP. + +One can educe from Jenny’s salary structure that she does not receive any payment for the Days Without Duties. In so far as Cathay Pacific uses Days Without Duties to discharge its obligation to provide Jenny with statutory holidays under the EO, Jenny does not receive any SHP. + +Ordinary Wages +Prior to the amendments introduced by the EAO, s.42 of the EO provides :- +"42 Ordinary wages instead of holiday pay, annual leave pay, maternity leave pay or sickness allowance + Where, pursuant to the terms of his contract of employment or the terms of any other agreement or for any other reason, an employee is paid his ordinary wages in respect of any holidays, annual eave, maternity leave or sickness day, the employee shall not, in addition to such ordinary wages, be entitled to be paid holidays pay, annual leave pay, maternity leave pay or sickness allowance, as the case may be." + +The EAO repealed s.42 of EO. + +Cathay Pacific contends that the Claimants' monthly basic salary, together with other regular fixed monthly allowance, represents their "ordinary wages" for the purposes of s.42 of the EO. + +Mr Justice Rogers VP held at paragraph 21 of Lam Pik Shan v. Hong Kong Wing On Travel Services Ltd, +"21. As regards section 42 of the Ordinance, I see no basis for restricting the meaning of "ordinary wages" to the bare, almost notional, payment under clause 7 of the agreement. In my view "ordinary wages" has no other meaning than "wages" as used in the Ordinance." + +Such view was echoed by the Honorable Mr. Justice Cheung JA in Fong Mung Yan v. ISS Hong Kong Service Limited, at paragraph 49 where the learned Judge said, +"49. In my view section 42 does not assist the Defendant. This section merely prevents the worker from receiving a double benefit. It provides no answer to the question whether wages include attendance bonus. In my view there is no distinction between the term "wages" as defined by section 2(1) and ''ordinary wages' referred to in section 42." + +I hold that s.42 of does not assist Cathay Pacific. + +S.40 of the EO +In relation to the payment of SHP, s.40 of the EO provides : +"40. Payment of holiday pay +Subject to section 12(11), an employee who has been employed by his employer under a continuous contract for a period of 3 months immediately preceding a statutory holiday shall, not later than the day on which the employee is next paid his wages after that holiday, be paid by his employer holiday pay at the rate specified in section 41, whether the employee takes a holiday on the statutory holiday or on an alternative or substituted holiday or a holiday under section 39(4)." + +This section is applicable both prior to and after the introduction of the EAO. + +Cathay Pacific contends that by virtue of the provisions of s.40, to the extent that the Claimants worked on a statutory holiday, the wages paid to them in respect of that statutory holiday (which she worked) constitute their full entitlement under the EO in respect of that statutory holiday. In these circumstances, the Claimants will have received the amount they "would have earned" on the statutory holiday. + +In effect, Cathay Pacific rigidly construes "that holiday" referred to in s.40 as the statutory holiday. In my view, "that holiday" plainly means the holiday actually taken by the employee, whether the employee takes a holiday on the statutory holiday or on an alternative or substituted holiday or a holiday under s.39(4). Were Cathay Pacific's construction acceptable, an employer would have no obligation under the EO to pay SHP in respect of an alternative or substituted holiday. That must be wrong. + +Contractual Annual Leave Pay +Clause 16(A) of the COS 1986 provides :- +"Annual Leave – Cabin crew will be granted three weeks’ paid leave per year. In the first year cabin crew do not qualify for annual leave until they have completed nine months’ service. After completing five years of service, cabin crew will be granted four weeks’ paid leave per year. After completing ten years of service, cabin crew will be granted five weeks’ paid leave per year." + +Clause 12(A) of the COS 1993 provides :- +"Annual Leave – Cabin Attendants will be granted three weeks’ paid leave per year. In the first year Cabin Attendants do not qualify for annual leave until they have completed probation. After completing five years of service, Cabin Attendants will be granted four weeks’ paid leave per year. After completing ten years of service, Cabin Attendants will be granted five weeks’ paid leave per year. +Leave shall be taken in accordance with the leave roster system established by the Company. The taking of leave will be subject to the exigencies of service as determined by the Company. " + +Clause 5.1 of the COS 2003 provides :- + "Annual Leave +The Company operates a common leave year from 1 January to 31 December. Cabin Attendants are eligible to apply for and take annual leave in accordance with Company Policies. +Annual leave will be granted subject to the needs of the Company, determined in its discretion from time to time. +A Cabin Attendant is expected to take all annual leave within the current leave. Annual leave cannot be carried forward without prior written approval of the Company. +Advance annual leave may be granted at the Company’s sole discretion. If granted, the Cabin Attendant’s annual leave entitlement for the ensuing period will be adjusted accordingly. +If, upon leaving the employment of the Company, a Cabin Attendant has taken annual leave in excess of the Cabin Attendant’s pro-rata annual leave entitlement, calculated to cessation of employment, the final payment made to the Cabin Attendant will be adjusted accordingly." + +The Company Policy provides Jenny’s AL entitlement as follows :- +"Cabin crew who join on or after 01 September 1996: +Flight Attendant or Flight Purser with less than 5 years of service as cabin crew, 21 days of leave entitlement +Flight Attendant or Flight Purser with more than 5 years of service as cabin crew, 24 days of leave entitlement +Senior Purser or Inflight Service Manager, 28 days of leave entitlement" + +Section 2 of the EO provides that "annual leave" means the annual leave provided for in Part VIIIA and "annual leave pay" means the annual leave pay required by the EO to be paid in respect of a period of annual leave provided for in Part VIIIA in respect of a period of annual leave required to be paid under section 41D. + +Therefore, Cathay Pacific contends that the provisions in the EO relation to annual leave and annual leave pay are applicable only to statutory annual leave (a maximum of 14 days); that the statutory provisions do not apply to leave granted by an employer in excess of the statutory annual leave and that leave granted in excess of the statutory requirement. In other words, contractual annual leave, including the taking and the payment of such leave, is therefore governed solely by the terms of the relevant employment contract, which fall to be interpreted and construed in accordance with general contractual principles. + +Cathay Pacific contends that on the basis of general contractual principles of construction and on the basis of plain common sense, the expression "paid leave" means leave of absence from work with the payment of basic salary and those allowances to which a cabin attendant is entitled by virtue of his or her position i.e. title and appointment allowances, but excluding allowances which arise by virtue of the actual performance of in flight or other specific duties, such as OA, LDA and GDA and which plainly do not arise at all during periods of leave. + +I accept that the Claimants' contractual AL is governed by the terms of the employment contract. The COS are drafted in details. Upon reading the relevant provisions of the COS, I observe that they do not make any distinction between a cabin crew's statutory and contractual annual leave payment. In practice, there is no way to tell when the Claimants take AL, whether they are on the statutory or contractual AL. As a matter of construction of the employment contract, I take the starting point that the calculation of the ALP regarding all AL provided by the employment contract is equal. + +In Wong Yin Fong & others v. ISS Hong Kong Services Ltd, J Lam J held that "Given its paternalistic nature, the statutory scheme strives to achieve through s.41C that an employee will not suffer any accompanying economic loss for not working during the leave period". In the present case, Cathay Pacific takes into account of the numbers of days of AL taken by Becky and Vera to calculate their Excess Flying Pay ("EFP") (See Clause 6 of COS 1986 and Clause 5 of COS 1993 for EFP’s meaning). Jenny's situation is similar. Cathay Pacific takes into account the number of hours flown as well as credits earned by reasons of leave (including AL) to calculate MGFP and Jenny's wages. Jenny earns 3.25 leave credits per day of AL. Such arrangements suggest that the parties are also prepared to make provision for making up a cabin crew’s accompanying economic loss for not working during the leave period. Conversely, Cathay Pacific contends that on the basis of plain common sense, allowances that arise by virtue of the actual performance of duties such as LDA and GDA should be excluded in calculating ALP and SHP. Courts will imply terms into individual contracts on the ground of business efficacy but it is nothing to do with making things reasonable or fair. All in all, I am not persuaded by Cathay Pacific's common sense approach. After having carefully considered all evidence, I take the view that there is no contractual basis to calculate the ALP attributable to the statutory and contractual AL differently. + +Conclusion +I hold that Jenny is hourly paid. Therefore, she is employed on daily wages that vary from day to day. In accordance with the old s.41(2) of EO, her holiday pay shall be a sum equivalent to the average of the daily wages earned by her on each day on which she worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the holiday or first day of the holiday. In my view, she does not receive any SHP. In accordance with the old s.41C(2) of EO, her annual leave pay shall be calculated by reference to the average of the daily wages earned by her on each day on which she worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the first day of the annual leave or on the day on which the contract of employment terminates, as the case may be. Account will be taken into ALP that were already paid by Cathay Pacific. + +In conclusion, I hold that Cathay Pacific should calculate and pay Becky and Vera shortfalls in the amounts of ALP and SHP in the manners as set out in the above paragraph 102 and should calculate and pay Jenny shortfalls in the amounts of ALP and SHP in the manners as set out in the above paragraphs 102, 108 and 140, but it is not required to include OA in the calculation of ALP and SHP. + +The parties shall make arrangements with the case Tribunal Officer for the purpose of fixing a mutually convenient date for a mention hearing on the question of quantum. + +Costs reserved. + diff --git a/en_cases_hklat/2009_HKLaT_3/case.json b/en_cases_hklat/2009_HKLaT_3/case.json new file mode 100644 index 0000000..c92aebe --- /dev/null +++ b/en_cases_hklat/2009_HKLaT_3/case.json @@ -0,0 +1,32 @@ +{ + "Date": "12 Jan, 2009", + "Action No.": "LBTC2829/2008", + "Neutral Cit.": "[2009] HKLaT 3", + "case_title": "HO KIT MAN JENNY V. CATHAY PACIFIC AIRWAYS LIMITED", + "page_title": "HO KIT MAN JENNY V. CATHAY PACIFIC AIRWAYS LIMITED | [2009] HKLaT 3 | HKLII", + "case_history": [ + { + "name": "LBTC2829/2008", + "link": "https://www.hklii.hk/en/appealhistory/LBTC/2008/2829" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hklat/2009/3", + "neutral_cit": "[2009] HKLaT 3", + "court_code": "HKLAT", + "content": "LBTC 2829/2008\nIN THE LABOUR TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCLAIM NO. LBTC 2827/2008, 2828/2008 & 2829/2008\n__________________________________\nBETWEEN\nLBTC 2827/2008\nKWAN SIU WA BECKY\nCLAIMANTS\nLBTC 2828/2008\nWU YEE MEI VERA\nLBTC 2829/2008\nHO KIT MAN JENNY\nand\nCATHAY PACIFIC AIRWAYS LIMITED\nDEFENDANT\n__________________________________\nCoram: Pang Ka Kwong, Deputy Presiding Officer\nDate of Trial: 22, 23 & 24 December 2008, 12 January 2009\nDate of Decision on Liability: 12 January 2009\nDate of Reasons for Decision on Liability: 12 January 2009\nDate of Corrigendum:  22 January 2009\n__________________________________\nCORRIGENDUM\nThe quoted provisions of ss.41 and 41C of the Employment (Amendment) Ordinance on pp. 12-15 should be amended as shown in red in the Attachment to this Corrigendum.\n(Yau Wai-yuen)\nClerk to Pang Ka Kwong, Deputy Presiding Officer\nhe worked during every complete wage period, comprising not less than 28 days and not more than 31 days, immediately preceding or expiring on the first day of the annual leave or on the day on which the contract of employment terminates, as the case may be.\"\n33.  Following the introduction of the EAO, the provisions for calculating SHP and ALP are :-\n(i)\nSHP\n\"\n41. Rate of Holiday pay\n(1) For the purposes of subsections (2), \n (3) and (4), \"wages\"(工資) includes any sum paid by an employer in respect \n of -\n(a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee;\n(b) a day of leave taken by the employee with the agreement of his employer;\n(c) a normal working day on which the employee is not provided with work;\n(d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap\n.\n282).\n(2) The daily rate of holiday pay is a sum equivalent to the daily average of the wages earned by the employee during -\n(a)\na\nthe\nperiod of 12 months immediately before the holiday or first day of the holidays \n (as appropriate); or\n(b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the holiday or first day of the holidays (as appropriate), the shorter period.\n(3) In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period -\n(a) any period therein for which the employee was not paid his wages or full wages by reason of -\n(i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee;\n(ii) any leave taken by the employee with the agreement of his employer;\n(iii) his not being provided by his employer with work on any normal working day; or\n(iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap\n.\n282); and\n(b) any wages paid to him for the period referred to in paragraph (a)\n.\n,\nare to be disregarded.\n(4) For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a\nfraction of the amount earned by the employee on a normal working day, the wages and the day are to be disregarded in accordance with subsection (3).\n…..\"\n(ii)\nALP\n\"\n41C Rate of annual leave pay\n(1) For the purposes of subsections (2), (3) and (4), \"wages\"(\n工資) includes any sum paid by an employer in respect of -\n(a) a day of maternity leave, a rest day, a sickness day, a holiday or a day of annual leave taken by the employee;\n(b) a day of leave taken by the employee with the agreement of his employer;\n(c) a normal working day on which the employee is not provided with work;\n(d) a day of absence from work of the employee due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap\n.\n282).\n(2) The daily rate of\nholiday\nannual leave\npay is a sum equivalent to the daily average of the wages earned by the employee during -\n(a)\na\nthe\nperiod of 12 months immediately before the\nholiday\nday of annual leave,\nor\nthe\nfirst day of the\nholidays\nannual leave or the date of termination of the contract of employment\n(as appropriate); or\n(b) if the employee has been employed by the employer concerned for a period shorter than 12 months immediately before the\nholiday\nday of annual leave,\nor\nthe\nfirst day of the\nholidays\nannual leave or the date of termination of the contract\n(as appropriate), the shorter period.\n(3) In calculating the daily average of the wages earned by an employee during the period of 12 months or the shorter period -\n(a) any period therein for which the employee was not paid his wages or full wages by reason of -\n(i) any maternity leave, rest day, sickness day, holiday or annual leave taken by the employee;\n(ii) any leave taken by the employee with the agreement of his employer;\n(iii) his not being provided by his employer with work on any normal working day; or\n(iv) his absence from work due to temporary incapacity for which compensation is payable under section 10 of the Employees' Compensation Ordinance (Cap\n.\n282); and\n(b) any wages paid to him for the period referred to in paragraph (a)\n.\n,\nare to be disregarded.\n(4) For the avoidance of doubt, if the amount of the wages paid to an employee in respect of a day specified in subsection (1) is only a fraction of the amount earned by the employee", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2008/LBTC002829_2008.doc", + "file_name": "LBTC002829_2008.doc", + "file_ext": ".doc", + "status": "success" + }, + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2008/LBTC002829M_2008.doc", + "file_name": "LBTC002829M_2008.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hklat/2012_HKLaT_1/LBTC000595AX_2012.txt b/en_cases_hklat/2012_HKLaT_1/LBTC000595AX_2012.txt new file mode 100644 index 0000000..df50ee1 --- /dev/null +++ b/en_cases_hklat/2012_HKLaT_1/LBTC000595AX_2012.txt @@ -0,0 +1,37 @@ +LBTC 595/2012 + +IN THE LABOUR TRIBUNAL OF THE +HONG KONG SPECIAL ADMINISTRATIVE REGION +LABOUR TRIBUNAL CLAIM NO. 595 OF 2012 + --------------------- + ---------------------- + +Before : Ms. Michelle Lam, Presiding Officer +Dates of Hearing: 21-23 and 26-27 March, 25-28 May and 14 June 2012 +Date of Decision: 13 July 2012 +Date of Review Hearing: 6 August 2012 +Date of Reasons for Decision on Review: 20 September 2012 + +REASONS FOR DECISION ON REVIEW + +1. After trial, I made the following rulings in respect of the present case on 13 July 2012: + +The five Claimants’ claims under item (A) for severance payments is allowed, and the Defendant shall pay forthwith: HK$13,412.05 to the 3rd Claimant, HK$3,003.42 to the 4th Claimant, HK$21,848 to the 7th Claimant, HK$13,827.86 to the 9th Claimant, and HK$13,826.82 to the 11th Claimant; +The five Claimants’ claims under the second item for terminal payments are dismissed; +The Defendant shall pay forthwith costs of: HK$197 to the 3rd Claimant, HK$1,020 to the 4th Claimant, HK$180 to the 7th Claimant, HK$290 to the 9th Claimant, and HK$199 to the 11th Claimant; +Interest on the above judgment sums shall be calculated in accordance with section 39(3) of the Labour Tribunal Ordinance (Cap 25) and be paid by the Defendant. + +2. The Defendant applied for review of the above rulings, and the hearing of the application took place on 6 August 2012. + +3. Having carefully considered all the grounds of application by the Defendant, I found that those grounds had been raised at trial and each of them had been considered and eventually rejected by me. Therefore, the Defendant failed to put forward any additional grounds in support of the application for review. + +4. For the above reason, I have rejected the Defendant’s application for review. + +5. The Defendant had also applied for a stay of payment-out to the five Claimants of the sum of HK$67,996.81, being the judgment sum paid in by the Defendant on 26 July 2012. In this respect, having taken into account that the Defendant had all along merely repeated the grounds of defence already raised and fully canvassed but eventually rejected at trial, that the Defendant’s appeal had little prospect of success, and the temporal impact of the appeal proceedings on the five Claimants who were senescent, and also having assessed the impact of a stay of payment-out of the judgment sum on the Defendant and the five Claimants and all relevant factors, I took the view that the Defendant’s application was unjustified. I have therefore dismissed the application. + +6. As for costs, in the absence of any application by the parties, I make no order as to costs. + + + + +Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor \ No newline at end of file diff --git a/en_cases_hklat/2012_HKLaT_1/case.json b/en_cases_hklat/2012_HKLaT_1/case.json new file mode 100644 index 0000000..e69b05c --- /dev/null +++ b/en_cases_hklat/2012_HKLaT_1/case.json @@ -0,0 +1,26 @@ +{ + "Date": "20 Sep, 2012", + "Action No.": "LBTC595/2012", + "Neutral Cit.": "[2012] HKLaT 1", + "case_title": "CHENG KWOK WAH AND OTHERS V. LI HING CLEANING SERVICES CO. LTD", + "page_title": "CHENG KWOK WAH AND OTHERS V. LI HING CLEANING SERVICES CO. LTD | [2012] HKLaT 1 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "LBTC595/2012", + "link": "https://www.hklii.hk/en/appealhistory/LBTC/2012/595" + } + ], + "case_url": "https://www.hklii.hk/en/cases/hklat/2012/1", + "neutral_cit": "[2012] HKLaT 1", + "court_code": "HKLAT", + "content": "LBTC595AX/2012 CHENG KWOK WAH AND OTHERS v. LI HING CLEANING SERVICES CO. LTD\nLBTC 595/2012\nIN THE LABOUR TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nLABOUR TRIBUNAL CLAIM NO.595 OF 2012\n---------------------\nBETWEEN\nCHENG KWOK WAH（鄭國華）\n3rd Claimant\nLAI AH LOI（黎亞來）\n4th Claimant\nLIU FAT HOI（廖發開）\n7th Claimant\nHO CHING HOI（何清海）\n9th Claimant\nHSU CHE CHEONG（徐志中）\n11th Claimant\nand\nLI HING CLEANING SERVICES CO. LIMITED\n（利興清潔服務有限公司）\nDefendant\n----------------------\nBefore : Ms. Michelle Lam, Presiding Officer\nDates of Hearing: 21-23 and 26-27 March, 25-28 May and 14 June 2012\nDate of Decision: 13 July 2012\nDate of Review Hearing: 6 August 2012\nDate of Reasons for Decision on Review: 20 September 2012\nREASONS FOR DECISION ON REVIEW\n1.\nAfter trial, I made the following rulings in respect of the present case on 13 July 2012:\n(1) The five Claimants’ claims under item (A) for severance payments is allowed, and the Defendant shall pay forthwith: HK$13,412.05 to the 3\nrd\nClaimant, HK$3,003.42 to the 4\nth\nClaimant, HK$21,848 to the 7\nth\nClaimant, HK$13,827.86 to the 9\nth\nClaimant, and HK$13,826.82 to the 11\nth\nClaimant;\n(2) The five Claimants’ claims under the second item for terminal payments are dismissed;\n(3) The Defendant shall pay forthwith costs of: HK$197 to the 3rd Claimant, HK$1,020 to the 4th Claimant, HK$180 to the 7th Claimant, HK$290 to the 9th Claimant, and HK$199 to the 11th Claimant;\n(4) Interest on the above judgment sums shall be calculated in accordance with\nsection 39\n(3) of the\nLabour Tribunal Ordinance\n(\nCap 25\n) and be paid by the Defendant.\n2.\nThe Defendant applied for review of the above rulings, and the hearing of the application took place on 6 August 2012.\n3.\nHaving carefully considered all the grounds of application by the Defendant, I found that those grounds had been raised at trial and each of them had been considered and eventually rejected by me. Therefore, the Defendant failed to put forward any additional grounds in support of the application for review.\n4.\nFor the above reason, I have rejected the Defendant’s application for review.\n5.\nThe Defendant had also applied for a stay of payment-out to the five Claimants of the sum of HK$67,996.81, being the judgment sum paid in by the Defendant on 26 July 2012. In this respect, having taken into account that the Defendant had all along merely repeated the grounds of defence already raised and fully canvassed but eventually rejected at trial, that the Defendant’s appeal had little prospect of success, and the temporal impact of the appeal proceedings on the five Claimants who were senescent, and also having assessed the impact of a stay of payment-out of the judgment sum on the Defendant and the five Claimants and all relevant factors, I took the view that the Defendant’s application was unjustified. I have therefore dismissed the application.\n6.\nAs for\ncosts, in the absence of any application by the parties, I make no order as to costs.\n(Michelle Lam)\nPresiding Officer of the Labour Tribunal\nTranslated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2012/LBTC000595AX_2012.doc", + "file_name": "LBTC000595AX_2012.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hklat/2012_HKLaT_2/LBTC000595X_2012.txt b/en_cases_hklat/2012_HKLaT_2/LBTC000595X_2012.txt new file mode 100644 index 0000000..72c3b8b --- /dev/null +++ b/en_cases_hklat/2012_HKLaT_2/LBTC000595X_2012.txt @@ -0,0 +1,258 @@ +LBTC 595/2012 + +IN THE LABOUR TRIBUNAL OF THE +HONG KONG SPECIAL ADMINISTRATIVE REGION +LABOUR TRIBUNAL CLAIM NO. 595 OF 2012 + +--------------------- + + +---------------------- +Before : Ms. Michelle Lam, Presiding Officer +Dates of Hearing: 21-23 and 26-27 March, 25-28 May and 14 June 2012 +Date of Decision : 13 July 2012 +Date of Reasons for Decision: 20 September 2012 + +REASONS FOR DECISION + +Background +1. The five Claimants herein, being the 3rd, 4th, 7th, 9th and 11th Claimants, claim against the Defendant for severance payments and alternatively terminal payments. The Defendant denies liability to pay but does not dispute the quantum of the claims. + +Background facts +2. The background facts of the present case are not subject to serious dispute. + +3. The Defendant provided various cleaning services to the Government and also various types of private and public organizations. Following a tender exercise, the Defendant entered into a two-year “Street Cleaning Services Contract for Wanchai” with the Food and Environmental Hygiene Department (“FEHD”) under which the Defendant provided cleaning services to FEHD for streets in Wanchai from 1 January 2008 to 31 December 2009. Following a subsequent tender exercise, the Defendant entered into another two-year “Street Cleaning Services Contract for Wanchai”, i.e. Government Service Contract No. FEHDSC/63/09, with the FEHD (“FEHD Contract”), under which the Defendant continued to provide cleaning services for streets in Wanchai from 1 January 2010 to 31 December 2011. On 7 December 2011, however, the FEHD notified the Defendant in writing that it was not selected as the contractor in the new tender exercise for the two-year period starting from 2012, and hence no new service contract would be made with the Defendant upon expiry of the FEHD Contract on 31 December 2011. + +4. A total of 375 staff members were affected by then. 371 of them were engaged on monthly basis and had each entered into a “Standard Employment Contract for Employees of Contractors of Government Services Contract” with the Defendant (“Government Standard Contract”). This was a pro forma Standard Employment Contract which, pursuant to the mandatory requirement of the government, contractors had to enter into with non-skilled workers whom they employed to provide services under any Government Services Contract. For the remaining four staff members, as they were temporary daily-wage workers who had worked for less than seven days, the Defendant was not required to enter into Government Standard Contracts with them. + +5. In mid to late December, the Defendant sent personnel to various roll-call points across the district where cleaning services were provided, informing the cleaning workers that the FEHD Contract would end on 31 December. Cleaning workers of less than two years’ service were given seven days’ notice of termination of their employment contracts, whereas workers of more than two years’ service, totalling 163, were asked whether they would accept re-deployment by the Defendant to other places of work starting from 1 January 2012. Some of the staff members signed a pro forma “Staff Reply Slip on Arrangements upon Expiry of Contract at Site” prepared by the Defendant (“Reply Slip(s) on Expiry of Contract”). + +6. The Defendant was notified by the Labour Department on 23 December that the Cleaning Workers Union and the Department had received complaints from workers against the Defendant, alleging that the Defendant had misled workers into signing the Reply Slips on Expiry of Contract with a view to evading liability for severance payment. The Labour Department invited the Defendant to attend a meeting with its staff scheduled for 28 December. + +7. Among the attendees of the meeting on 28 December were two officers from the Labour Department; one Ms Wu Mei-lin, an officer of the Cleaning Workers Union (“the Union Representative”); and one Ms Woo Ching Sum Connie, Executive Director of the Defendant (“the Company Representative”). Some of the cleaning workers were notified by the Union to attend the meeting, and some by fellow workers. + +8. No agenda was set for the above meeting. No pre-arrangement was made as to the time of attending the meeting or the number of attendees, and the cleaning workers went in and out of the meeting randomly and freely. As there was no outline of topics for discussion, the Defendant played a passive role at the meeting and merely answered questions from individual staff members. As the meeting became very disorderly, the Union Representative took the initiative to propose that the Defendant should set out its deployment arrangements in writing, specifying the new working hours and places of work for each member of staff, and to request that each member of staff be given a copy of those written arrangements at the meeting on the following day. + +9. Similarly, among the attendees of the meeting on 29 December were two Labour Department officers, the Union Representative and the Company Representative. The Defendant had prepared 162 copies (with one person being omitted) of “Notification of Re-deployment to Workplaces” (“Re-deployment Notification”), each of which set out the new place of work to which a particular staff member would be deployed and his working hours. At that time, the Labour Department and the Union Representative asked the Company Representative to distribute, in person and on the spot, the Re-deployment Notifications to each staff member present at the meeting. Regarding the Re-deployment Notifications to the 26 staff members who did not attend the meeting, as the Labour Department and the Union Representative both refused to collect them on behalf of those staff members, the Defendant took the copies back. + +10. Some of the staff members who attended the meeting (including the five Claimants herein) wrote down the reasons for refusing to be re-deployed in the respective Re-deployment Notifications distributed to them and then returned them to the Company Representative on the spot. The Company Representative said that she would take into account the replies of each individual and consider whether they would be re-deployed. + +11. On the following day, namely 30 December, the Defendant revised the re-deployed work places and/or working hours of some of the staff members. As regards the five Claimants herein, only the 9th and 11th Claimants had their re-deployed work places and/or working hours revised. However, the Defendant only sent the revised particulars concerned to the Union Representative and the Labour Department by e-mail without notifying the staff members individually. + +12. Having sent the e-mail, the Defendant telephoned the Labour Department and the Union Representative to see if they had duly received the e-mail. Apart from this, the Defendant did not communicate any further with the workers, the Labour Department or the Union Representative regarding the arrangements on re-deployment or resignation. + +13. Some of the workers were dissatisfied with the Defendant’s arrangements and took part in a strike on 31 December in which the Union also participated. + +14. On 6 January 2012 the Defendant sent by post the Notifications of Termination of Employment Contract to those cleaning workers who did not turn up for work at their new posts after 1 January, including the five Claimants. + +15. Of the 163 workers of two years’ service or more, only six continued to work for the Defendant after 1 January. These six workers had already entered into employment contracts with the Defendant for the provision of services under other Government services contracts. + +The five Claimants +16. Except for the 4th Claimant, who started working for the Defendant on 4 July 2008, the Claimants started working for the Defendant on 1 January 2008. Each of the five Claimants had entered into his own Government Standard Contract with the Defendant when he first joined the Company. Those contracts specified that they were employed by the Defendant as cleaning workers providing cleaning services in Wanchai district. As the previous “Street Cleaning Services Contract for Wanchai” between the Defendant Company and the FEHD came to an end on 1 January 2010 and they entered into a new contract – the FEHD contract, the Defendant was required to enter into another Government Standard Contract with each of the five Claimants as required by the FEHD contract. All these contracts came into effect on 1 January 2010 and the Claimants’ wages were revised. + +17. On 1 May 2011, following the implementation of the Minimum Wage Ordinance, the Defendant entered into another Government Standard Employment Contract with each of the five Claimants which took effect from 1 May 2011 and under which wages were revised (“the 3rd Contract(s)”). The second and the 3rd Contracts mentioned above both specified that the places of work of the five Claimants were within the service area specified in the FEHD contract (with the FEHD contract number stated), and also specified the Claimants’ respective working hours and monthly wages. + +18. The five Claimants had provided services exclusively under the “Wanchai Street Cleaning Services Contracts” ever since their recruitment by the Defendant until 31 December 2011. Except for the 7th Claimant, whose working hours had been varied once during his employ with the Defendant, the places of work and the working hours of the Claimants had never changed. Their working hours were specified in their respective Government Standard Contracts with the Defendant, and their places of work were within the service area under the FEHD contract. The relevant particulars are set out below: + + +19. The personal background of the five Claimants is summarized below: + + +Contact on two occasions +20. During the period from 7 December 2011 to 6 January 2012 when the Defendant sent dismissal letters by post to the five Claimants, the five Claimants and the Defendant had contacted each other on only two occasions in relation to the arrangements after 31 December (except for the 9th Claimant, who was present for some time at the Labour Department meeting on 28 December). The first one took place in mid to late December when the Defendant sent personnel to various roll-call points, informing the workers of the expiry of the FEHD contract on 31 December and enquiring if they were willing to be re-deployed to other places of work. All but the 11th Claimant signed the “Reply Slip on Expiry of Contract”. + +21. The second occasion was when all the five Claimants attended the Labour Department meeting on 29 December, at which the Re-deployment Notifications were distributed to them. However, the Defendant did not hold any direct or separate discussion with any of the Claimants. According to the Re-deployment Notifications given to the Claimants, the work arrangements after 1 January 2012 which the Defendant required of the five of them are as follows: + +22. On 30 December the Defendant re-arranged the workplaces and working hours of the 9th and 11th Claimants (as shown below), but the arrangement was not communicated to those two Claimants. + + +Claimants’ case +23. It was the five Claimants’ case that they had at various points of time entered into three Government Standard Contracts with the Defendant, which specified that the Claimants were employed to provide cleaning services under the “Wanchai District Street Cleaning Services Contract” between the Defendant and the FEHD, with places of work being confined to the locations at which services were to be provided under the said contract, and which also specified the Claimants’ working time, number of working hours and wages. Given that, following the expiry of the FEHD contract on 31 December, the parties did not enter into new employment contracts, nor did the Defendant offer to enter into new contracts with the Claimants or renew their existing contracts pursuant to the Employment Ordinance, the Defendant is liable for severance payments or terminal payments. + +Defendant’s case +24. The Defendant’s case is that its employment relationship with the five Claimants did not terminate as a result of the expiry of the FEHD contract, because the Defendant had notified the Claimants in mid-December that they would be re-deployed to other workplaces starting from 1 January 2012 and had also given the Claimants written notice on 29 December informing them of the new time and place of work. It was just that the Claimants did not comply with the re-deployment order by failing to turn up for work at the new workplaces on or after 1 January 2012. The Defendant contends that, as the Claimants failed to comply with a legitimate and reasonable order, the Defendant was entitled to issue to them notices of dismissal on 6 January, notwithstanding it was stated therein that the Defendant would not claim against the Claimants for wages in lieu of notice. The Defendant therefore considers the Claimants’ claims unjustified. + +25. The five Claimants gave evidence in court and called the Union Representative as their witness, whereas the Defendant called the Company Representative and Wong Shuk Yin, the Defendant’s Deputy Human Resources Officer, to give evidence in court. + +Findings of fact +26. In determining the present case, I have carefully considered all the witness statements and exhibits submitted by the parties, the testimonies and demeanour of the witnesses in court, as well as all relevant surrounding circumstances. + +Severance payment +27. Under section 31B of the Employment Ordinance (Cap 57), where an employee who has been employed under a continuous contract for a period of not less than 24 months is dismissed by his employer by reason of redundancy, the employer shall be liable to pay to the employee a severance payment. + +28. It is not disputed in the present case that the five Claimants had each been employed for not less than 24 months under a continuous contract. The issue is whether they were dismissed by reason of redundancy. + +29. Section 31D of the Employment Ordinance provides as follows: +“(1) For the purposes of and subject to this Part, an employee shall be taken to be dismissed by his employer if, but only if - + +(a) the contract under which he is employed is terminated by the employer with or without notice or payment in lieu thereof other than in accordance with section 9; + +(b) where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract; or + +(c) the employee terminates that contract with or without notice or payment in lieu, in circumstances such that he is entitled to terminate it without notice or payment in lieu in accordance with section 10 by reason of the employer’s conduct. + +(2) An employee shall not be taken for the purposes of this Part to be dismissed by his employer if - + +(a) his contract of employment is renewed, or he is re-engaged by the same employer under a new contract of employment; and + +(b) the renewal or re-engagement takes effect immediately on the ending of his employment under the previous contract. + +(3) For the purposes of the application of subsection (2) to a contract under which the employment ends on a rest day or holiday, the renewal or re-engagement shall be treated as taking effect immediately on the ending of the employment under the previous contract if it takes effect on or before the next day after that rest day or holiday.” + +Dismissal +30. Having carefully considered all the evidence, I find the five Claimants to have been dismissed by the Defendant in the circumstances as provided in section 31D(1)(b). In other words, they were employed under the 3rd Contracts for a fixed term, upon expiry of which the contract was not renewed. I consider that the fixed term concerned is the period from 1 May 2011 to 31 December 2011. + +31. The employment relationship between the five Claimants and the Defendant since 1 May 2011 was based on the 3rd Contracts which they individually entered into with the Defendant. All the five contracts were Government Standard Contracts in the prescribed format and terms, and they differed from one another only in terms of wages, working time and the number of working hours. + +32. In construing the five contracts, I have taken into account the underlying factual matrix. The Defendant entered into the FEHD contract, following which the five Claimants were employed to provide services under that contract, which expressly required the Defendant to enter into a Government Standard Employment Contract with each of the Claimants. + +33. As a matter of fact, since April 2005, in respect of service contracts mainly involving the use of non-skilled workers, the Government has required the relevant service contractors to enter into Standard Employment Contracts with non-skilled workers in their employ. This is to ensure that the places of work, working hours and calculation and amount of wages of those employed by the contractors to provide services under the service contracts are governed by the relevant terms of the service contracts, the objective of which is to provide clear and stable places and time of work to non-skilled workers who provide services for the Government but who are employed by the service contractors. The service contracts also provide for a penalty points system under which contractors who fail to comply with the above requirements are penalized. + +34. The 3rd Contract is the version of the Government Standard Employment Contract which has been revised consequential to the implementation of Minimum Wage Ordinance on 1 May 2011. + +35. The relevant terms and conditions of the five employment contracts read as follows: +“Standard Employment Contract +for Employees of Contractors of Government Service Contract (Note 1) +Government Service Contract No.: FEHDSC/63/09 (Note 2) +… +This employment contract shall commence on 1 May 2011. + +The Employee shall be employed by the Employer as cleaning worker (job title). The place of work is street cleaning services in Wanchai district (as specified in Government service contract no.: (Note 2) FEHDSC/63/09). If necessary, the Employer shall be allowed to deploy the Employee to work within the Hong Kong Island region (Note 3) under an urgent situation or on an ad hoc and limited basis. + +(a) The Employee shall work 6 days per week, and his/her daily working hours shall be: (Note 4) +[state the exact time of going on and off duty] + +Under exceptional circumstances and at the request of the relevant procuring department, the Employer may make appropriate adjustment to the above working hours, provided that such adjustment shall be on an ad hoc basis and shall not affect the original daily number of working hours of the Employee. +… + +6. In respect of work done in accordance with the working hours specified in Clause 3(a) of this employment contract, the Employee shall receive: + +(a) wages of HK$… [state the exact amount of wages] per month … + +21. Any variation of, amendment to, cancellation of or addition to any terms of this employment contract (including the Schedule) shall be void unless it does not extinguish or reduce any right, benefit or protection conferred upon the Employee by this employment contract and is signed by both parties. The Employer shall also provide a copy of the amendments signed by both parties to the Employee for his/her retention. + +[Emphasis added] + +36. Furthermore, Clauses 22 and 23 of the 3rd Contract state that the Employee and the Defendant agree that a copy of the 3rd Contract, wage records, attendance records and other relevant information shall be provided to the FEHD for record and for the purpose of monitoring the Defendant’s performance of employment-related obligations under the FEHD contract. + +37. It follows that Clause 2 of the contract strictly provides that the place of work must be the place where cleaning services are to be provided under the FEHD contract. In other words, the Claimants can only work within the areas specified in the FEHD contract. + +38. Although a mobility clause is also provided under Clause 2, it is a rather stringent provision in that it only allows the Defendant to adjust the deployment within Hong Kong Island region where it is necessary to do so as an emergency measure or on an ad hoc and limited basis. In other words, even when there is an actual need, the Defendant may not re-deploy an employee to work somewhere beyond the cleaning service area specified in the FEHD contract for an extended period of time, let alone permanently. + +39. Therefore, it is apparent from Clause 2 itself that the subsistence of the 3rd Contract was highly dependent on the fixed term of the FEHD contract. And paragraph 1(a) of Part 2 of the FEHD contract [Exhibit D-238, page 34] expressly stated that the fixed term of the contract was from 1 January 2010 to 31 December 2011. This being the case, a term must have been implied in the 3rd Contract that the employment contract would come to an end on 31 December 2011. + +40. Furthermore, the existence of such an implied term finds support in the other terms and provisions of the 3rd Contract. + +41. First of all, the title of the contract made it clear that it was an employment contract between the Defendant as a FEHD contractor and its employees. Moreover, the salient terms of the contract, such as those on working time, number of working hours and wages, were all governed by the relevant provisions of the FEHD contract. Furthermore, the contract expressly prohibited any variation of, amendment to, cancellation of or addition to any terms of the contract, and also provided that the rights and benefits conferred upon the employee by the contract must not be extinguished or reduced. Both parties expressly agreed to allow the FEHD to monitor the performance of the contract. + +42. It would indeed be impossible to perform or enforce these terms following the expiry of the FEHD contract. For this reason, a term must have been implied in the 3rd Contract that the 3rd Contract would be terminated at the same time as the expiry of the FEHD contract. As such, the 3rd Contract must have come to an end on 31 December 2011. + +43. It follows that, according to the 3rd Contract which each of the five Claimants entered into with the Defendant, the fixed term of employment of each of them expired on 31 December 2011. After the expiry of the term, the Defendant failed in a subsequent tender exercise and was therefore unable to renew the terms of employment of the five Claimants under the same contracts. For this reason, the circumstances of their dismissal fall within sections 31B(2) and 31D(1)(b) of the Employment Ordinance, and accordingly, pursuant to section 31B(1)(a), they shall be taken to be dismissed by their employer by reason of redundancy, and the Defendant is liable for severance payments. + +44. Alternatively, even if the said implied term did not exist, which means that the 3rd Contract did not come to an end with the expiry of the FEHD contract on 31 December 2011, the Defendant would still not have been able to comply with Clause 2 of the 3rd Contract. + +45. The reason is that, with the expiry of the FEHD contract on 31 December 2011, the Defendant could no longer assign the five Claimants to the places of work specified in the FEHD contract, but as pointed out above, the mobility clauses in Clause 2 prohibited the Defendant from re-deploying an employee to work at places other than those specified in the FEHD contract for an extended period of time or on a permanent basis. + +46. Therefore, when the Defendant, as mentioned above, sent personnel to contact the five Claimants individually for the first time so as to ascertain their intentions regarding the Defendant’s proposal to re-deploy them to other places of work, the Claimants were entitled to refuse the re-deployment. This was all the more so given the fact that they had been working in the same place throughout the many years of employment by the Defendant. + +47. When the Defendant issued Re-deployment Notifications to the five Claimants on 29 December, ordering them to show up for work on 1 January 2012 at the specified new places of work, of which none was among those specified in the FEHD contract, the Defendant had unilaterally varied a major employment condition on which the parties had mutually agreed. + +48. Furthermore, Clause 3 of the 3rd Contract clearly stated that the Defendant could make appropriate adjustments to the working hours only in special circumstances and upon request of the FEHD, and that such adjustments were to be temporary and should not affect the daily number of working hours as originally prescribed. This being the case, the Re-deployment Notifications show that the Defendant had unilaterally varied the working hours and even the number of working hours, thereby unilaterally varying another major employment condition. + +49. For these reasons, the five Claimants were entitled to refuse re-deployment on the spot as they did and not to show up at the new places of work on 1 January 2012. It was beyond doubt that in doing so, they were exercising their rights to terminate their respective employment contracts in response to the employer’s breach. + +50. These rights are aptly illustrated in the case of Western Excavating (ECC) Ltd v Sharp [1978] 1 QB 761 and form part of the legal principle of constructive dismissal. Under this principle, if an employer acts in serious breach of an employment contract, which expressly or implicitly shows that he no longer intends to be bound by the essential terms of the contract, the employee is entitled to treat himself as discharged from any further performance of his obligations under the contract. If the employee chooses to do so, he terminates the contract by reason of the employer’s conduct. In that case, the breach of contract by the employer constitutes constructive dismissal. The employee is entitled to leave at the instant without giving any notice to the employer, or he may give notice to the employer or leave at the end of the notice period. Applying this legal principle, it was by reason of the serious breach of contract by the Defendant that the five Claimants terminated the employment contract with the Defendant after 31 December 2011, and the Defendant could neither allege that the Claimants voluntarily resigned on 6 January 2012 by reason of absence for work at the new places of work, nor dismiss them summarily pursuant to section 9 of the Employment Ordinance, and hence cannot rely on section 31C(1) of the Employment Ordinance to avoid liability for severance payments. On the other hand, under 31D(1)(c), the five Claimants are taken to have been dismissed by their employer and the Defendant is liable to pay to them severance payments. + +51. Although the Defendant contends that the five Claimants were bound by the unlimited mobility clause in the Code of Conduct for Staff prepared by the Defendant, there is no concrete evidence whatsoever which indicates that the Defendant had ever distributed the Code or made the contents thereof known to the five Claimants. Further, it was only in the middle of the trial that the above contention was raised out of the blue. I do not believe that the Defendant had ever drawn the attention of the five Claimants to the abovementioned clause. + +52. Furthermore, given the presence of an express mobility clause in Clause 2 of the 3rd Contract, coupled with the stringent restrictions in Clause 21 on variation of contract terms, the 3rd Contract could not possibly allow for the unlimited mobility clause in the Code of Conduct for Staff or an implied term permitting permanent re-deployment of the Claimants to other places of work (Wong Yuk Ling v East East Food Products Limited, HCLA 95/2002). + +Reply Slips on Expiry of Contract +53. On the other hand, I have also carefully considered the effect, if any, of the following incidents on the Claimants’ case, namely the first contact the Defendant made with the five Claimants in relation to the ending of the FEHD contract, and the fact that the 3rd, 4th, 7th and 9th Claimants signed the Reply Slips on Expiry of Contract. + +54. The overall case of the five Claimants is that, around mid to late [December], the Defendant sent personnel to their respective places of work during their respective working hours (some time after 15 December for the 3rd and 4th Claimants; on 23 or 24 December for the 7th Claimant; on 26 December for the 9th Claimant; and on 28 December for the 11th Claimant), telling them the FEHD contract would come to an end on 31 December and asking if they were willing to be re-deployed to other workplaces thereafter, but without specifying the places, times and re-deployment arrangements. The five Claimants expressed their refusal right away. + +55. According to the 3rd, 4th, 7th and 9th Claimants, at that time they were shown a document which they did not understand and the contents of which were not explained to them. They had no idea whatsoever about the contents of the document when they signed it. The 4th Claimant’s case is that he was specifically told that he would be paid wages and annual leave pay as soon as possible after he signed the document at hand. The 7th Claimant’s case is that he signed the document as instructed as he was told that the document was merely a Notice of Expiry of Contract. The other two Claimants’ case is that they were arranged to sign the document without knowing what was going on. All the four of them claim that they did not know that refusal to accept the re-deployment was tantamount to voluntary resignation, and that they had never indicated that they would resign. + +56. On the other hand, while the Company Representative, who claimed to have talked to the 3rd and 9th Claimants individually in person and had them sign the Reply Slips on Expiry of Contract in mid-December was called by the Defendant to give evidence in court, the staff members who had communicated with the other three Claimants regarding the Reply Slips on Expiry of Contract were not called as witnesses. + +57. The Company Representative contended that although specific re-deployment arrangements or places of work had yet to be confirmed when she talked face to face with the 3rd and 9th Claimants individually, she did read out to them the contents of the Reply Slips including the two available options and leave them to make their own choices, telling them that it was for the purpose of ascertaining their preferences before proceeding to make further arrangements. When she learned that they refused to accept re-deployment to other places of work, she ticked the second option for them and then let them sign the Reply Slips. She testified that she also told the 9th Claimant that his failure to follow the re-deployment by the Defendant amounted to resignation. + +58. And under cross-examination, Ms. Wong Shuk Yin admitted in the end that she neither communicated directly with the five Claimants nor had any idea of the details of the communication between her colleagues and the five Claimants. She only maintained that, upon instructions given by her superior on 16 December, she visited various FEHD cleaning services roll-call points on 20 and 21 December, bringing along the Reply Slips on Expiry of Contract and informing staff members of less than two years’ service of their last day of service; and after 23 December, she notified staff members of more than two years’ service and ascertaining their intentions regarding re-deployment to other places of work. + +59. Having carefully considered all the evidence, including all the witness statements, exhibits and testimonies, and having closely observed their demeanour in the course of giving evidence in court and taken into account all the relevant surrounding circumstances, I do not consider any of the Defendant’s witnesses veracious or reliable. There were extensive contradictions in their testimonies and statements, which were also inconsistent with the actual circumstances on the material days. Furthermore, when they gave evidence, they were evasive from time to time and kept changing their stance. I find their evidence to be incredible. + +60. On the contrary, although there were discrepancies between the evidence given by the four Claimants in court and their witness statements, given they are seniors with limited education and, as far as I could observe during the trial, their hearing and ability in comprehension and expression are obviously poor, it is understandable that some of their thoughts were not properly expressed in their statements, which were not prepared by professionals on their behalf. However, in the course of giving evidence, as long as the questions put to them were clear enough for them to truly understand their meaning and they were given sufficient time to organize their thoughts, they could eventually give clear accounts of the crucial details of events. Their testimonies were also consistent with both their individual circumstances and objective circumstances. I accept their evidence. + +61. On the contrary, I do not accept that the Company Representative had face-to-face conversations with the 3rd and 9th Claimants and had the Reply Slips on Expiry of Contract signed. The reason is that such contention had never been mentioned in any of her statements, nor had it ever been raised at any of the numerous pre-trial hearings or any stage of the two-day trial. What is more unbelievable is that she did not mention such contention or put it to the 3rd Claimant when the 3rd Claimant gave evidence. She was unable to give a reasonable explanation of her failure to recognize the appearance of the 3rd or 9th Claimant all along. She could not even provide such basic information as the date and time. She also gave various versions of what people did at the scene. Given a time lapse of only two months and her background as a young professional, her memory of the events should have been fresh. + +62. Furthermore, it is clear from a comparison of the handwriting on the two sets of Reply Slips on Expiry of Contract [Exhibits D-208(1) and D-208(7)] which she claimed to have been written by her, and further comparison of the same with what she wrote in court [Exhibits D-210 and D-213(1)] and in other documents, that she was lying. + +63. Therefore, the Defendant did not have any substantial evidence to dispute the fact that the five Claimants had communicated with personnel sent over by the Defendant at that time. + +64. Furthermore, turning to the Reply Slips themselves, they contain the following relevant provisions: +“[ ] I am willing to be re-deployed to Yue Wan Estate or Hong Kong Museum of Coastal Defence or Chi Fu Fa Yuen or ( ) as from 1 January 2012 to perform duties of the same nature. From the date hereof until the date of re-deployment, if I change my mind and do not intend to work at ( ), I will be taken as resigning of my own accord and have to give 7 days’ notice or payment in lieu of notice to the Company in order to terminate the employment contract. + +[ ] For personal reasons, I am not willing to be re-deployed to other places of work for personal reasons, and I also decide to resign of my own accord and my last working day is _____(Day)____(Month)_____(Year). + +* Please delete as appropriate +* Please tick as appropriate” + +65. There is no doubt that the Reply Slips offered the workers only two options, one being willing to be re-deployed to other places of work, and the other being unwilling to be re-deployed, which would be taken as a decision to resign voluntarily. No other options were available. Therefore, it is highly probable that the Reply Slips did not truly reflect the intentions of the signatories, which is also consistent with the contention made by the four Claimants that they had merely indicated that they were unwilling to accept the re-deployment but had never indicated that they would resign. + +66. And taking into account each Claimant’s age, education background and handwriting on the relevant Reply Slip, I accept the Claimants’ evidence that they simply put their signatures on the Reply Slips and that the rest was filled in by staff members of the Defendant. The Claimants could not read and understand the contents of the Reply Slips, and no one explained the contents to them. They did not know that refusal to be re-deployed would be taken as voluntary resignation. + +67. Therefore, having carefully considered the proper construction of the Reply Slips and the fact that the four Claimants signed them without full knowledge and understanding of their effect, I find that although they signed the Reply Slips, the four Claimants had never decided or indicated that they would resign of their own accord, and the Reply Slips did not serve to terminate the employment relationship between the Defendant and the four Claimants. + +68. Indeed, the Defendant’s case and the conduct of the parties further demonstrate the fact that the four Claimants’ signing of the Reply Slips on Expiry of Contract had not been taken as voluntary resignation. + +69. First of all, on the Defendant’s own case, it sent staff members to various roll-call points for the purpose of informing the cleaning workers of the expiry of the cleaning services contract on 31 December, and the Defendant merely wanted to make preliminary enquiries about the workers’ intentions regarding re-deployment so as to enable the Defendant to decide the way forward. For this reason, particular re-deployment arrangements and new places of work were yet to be confirmed. + +70. Furthermore, neither party had ever made any subsequent move in respect of voluntary resignation. The Defendant took no corresponding steps to accept their resignation; instead, it issued re-deployment notifications to the five Claimants on 29 December, requiring them to turn up for work at the new places of work on 1 January 2012, failing which they would be regarded as being absent without leave. + +71. Subsequently on 6 January 2012, the Defendant sent notifications to the Claimants by post, informing them that by reason of their absence at the new places of work on 1 January 2012 and thereafter, they were deemed to have resigned of their own accord and terminated the employment contracts. This shows that at no time did the Defendant or the Claimants regard the signing of the Reply Slips by the four Claimants as voluntary resignation. The Defendant was all along fully aware that the Claimants had not indicated that they would resign. + +Exclusion from right to severance payment +72. I have also considered whether the re-deployment of staff to other working places by the Defendant would enable the Defendant to avoid liability to pay severance payment by relying on section 31C of the Employment Ordinance. As the Defendant sought to change the times and places of the Claimants’ employment and most of the terms and conditions of the 3rd Contract could not be retained, I only have to consider whether section 31C(3) is applicable, in other words, whether the Defendant had made written offers to the five Claimants to renew their employment contracts or to re-engage them under new contracts not less than 7 days before the termination of the employment contracts, and in relation to the five Claimants the offers constituted offers of suitable employment which were no less favourable than hitherto, so that if the five Claimants unreasonably refused those offers, they shall not be entitled to severance payments. + +73. Viewing the arrangements made by the Defendant as a whole, I do not consider section 31C(3) applicable. The Defendant had only contacted the five Claimants twice in relation to the arrangements after 31 December 2011, with only the first contacts with the 3rd, 4th and 7th Claimants made no less than 7 days before the termination of the employment contracts or the expiry of the contract terms as required by section 31C(3). + +74. Besides, during the course of the first contact, the Defendant only showed the Claimants the Reply Slips on Expiry of Contract which, however, contained no terms and conditions of new contracts, not even essential terms of employment such as working hours, wages, specific places of work and holidays. They simply could not satisfy the statutory requirements. + +75. The second contact was made on 29 December, which temporally failed to meet the 7-day requirement. Furthermore, the re-deployment notices, being the only documents shown, specified nothing but the working hours and places of work and were silent on wages or other essential terms and conditions of employment. + +76. Moreover, the working hours of each of the five Claimants were varied. The working hours of the 7th and 11th Claimants were even significantly varied, and this would, as the Claimants pointed out, certainly affect their other part-time engagements and family arrangements. In addition, the five Claimants had hitherto worked at the same places all along; given their senescence and limited education or even illiteracy, they would naturally find it difficult to work in a completely new environment. + +77. Furthermore, at no stage did the Defendant specify the amount of wages. Although the Company Representative contended that at the Labour Department meeting on 28 December she mentioned that the wages would not be lower than those in the original contracts or the statutory minimum wage, none of the four Claimants attended that meeting. Nor is there evidence that the 9th Claimant, who was the only Claimant present for some time at the meeting on 28 December, was actually present at the moment the Company Representative made the above statement on wages. In any event, even if it is assumed that the five Claimants were all present, given that the Defendant had varied their places of work, working times and number of working hours, a general statement that the wages would not be lower than those in the original contracts or the statutory minimum wage would not, without more, suffice to show that the new offers of employment were not less favourable than hitherto. All these indicate that the five of them had not unreasonably refused the Defendant’s offers. + +78. In the premises, the arrangements made by the Defendant failed to comply with the statutory requirements, and the five Claimants were entitled to refuse the Defendant’s offer on 29 December. The Defendant cannot avoid liability for severance payments on the ground that it had arranged new jobs for the Claimants. + +Working for the new service contractor +79. The Defendant also sought to argue that, since 1 January 2012, the contractor who took over the FEHD service contract from the Defendant had employed the five Claimants as cleaning workers in their existing posts. However, the Defendant admitted that, as of the middle of the present trial, it had no idea at all whether the five Claimants were employed by that contractor. The Defendant also admitted that at no point during their employ by the Defendant had the five Claimants indicated that they would switch over to work for the new service contractor. + +80. On the other hand, the five Claimants indicated that they had been awaiting specific arrangements by the Defendant and it was only when they heard nothing from the Defendant that they decided to work for the new service contractor from 1 January 2012, and written employment contracts were entered into only after they reported duty. This being the case, the Defendant cannot possibly avoid liability for severance payments on the ground that the Claimants eventually switched to another company on 1 January 2012. + +Ruling +81. Having considered all the evidence and the various arguments and grounds of defence put forward by the Defendant, I do not consider any of those grounds sustainable. The employment contracts between the Defendant and the five Claimants came to an end following the expiry of the FEHD contract on 31 December 2011. As the parties neither renewed the existing contracts nor entered into any new contracts, the Defendant is liable to pay severance payments to the Claimants. Alternatively, even if the employment contracts did not come to an end upon the termination of the FEHD contract, the Defendant was in breach of the fundamental terms and conditions of the employment contracts by making the requests for re-deployment, and the Claimants were therefore entitled to refuse re-deployment on 29 December, not to turn up for work at the new places of work on 1 January 2012, and to seek severance payments. + +82. For the above reasons, by virtue of section 31D of the Employment Ordinance, the five Claimants have been dismissed by reason of redundancy. Accordingly, I allow their claims under item (A) for severance payments and order that the Defendant do pay forthwith: HK$13,412.05 to the 3rd Claimant, HK$3,003.42 to the 4th Claimant, HK$21,848 to the 7th Claimant, HK$13,827.86 to the 9th Claimant, and HK$13,826.82 to the 11th Claimant. + +83. As I have allowed the five Claimants’ claims for severance payments, their claims under the second item for terminal payments are dismissed. + +84. Interest on the said judgment sums is to be calculated in accordance with section 39(3) of the Labour Tribunal Ordinance (Cap 25). + +Costs +85. I have considered the submissions on costs made by the parties. The basic principle governing awards of costs is that costs are to follow the event. There are no exceptional circumstances in the present case to justify a departure from that principle. As provided in section 28 of the Labour Tribunal Ordinance, costs include any reasonable expenses necessarily incurred and any loss of salary or wages suffered by a party and its witnesses in attending a hearing of the Tribunal. Having regard to the reasonableness of costs and the factual background to the present case, I order that the Defendant do pay forthwith: HK$197 to the 3rd Claimant, HK$1,020 to the 4th Claimant, HK$180 to the 7th Claimant, HK$290 to the 9th Claimant, and HK$199to the 11th Claimant. + +86. Interest on the above sums is also to be calculated in accordance with section 39(3) of the Labour Tribunal Ordinance and to be paid by the Defendant. + + + + + + (Michelle Lam) + Presiding Officer of the Labour Tribunal + + +Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr Edmund Cham, Solicitor + diff --git a/en_cases_hklat/2012_HKLaT_2/case.json b/en_cases_hklat/2012_HKLaT_2/case.json new file mode 100644 index 0000000..69450a3 --- /dev/null +++ b/en_cases_hklat/2012_HKLaT_2/case.json @@ -0,0 +1,26 @@ +{ + "Date": "20 Sep, 2012", + "Action No.": "LBTC595/2012", + "Neutral Cit.": "[2012] HKLaT 2", + "case_title": "CHENG KWOK WAH AND OTHERS V. LI HING CLEANING SERVICES CO. LTD", + "page_title": "CHENG KWOK WAH AND OTHERS V. LI HING CLEANING SERVICES CO. LTD | [2012] HKLaT 2 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "LBTC595/2012", + "link": "https://www.hklii.hk/en/appealhistory/LBTC/2012/595" + } + ], + "case_url": "https://www.hklii.hk/en/cases/hklat/2012/2", + "neutral_cit": "[2012] HKLaT 2", + "court_code": "HKLAT", + "content": "LBTC595X/2012 CHENG KWOK WAH AND OTHERS v. LI HING CLEANING SERVICES CO. LTD\nLBTC595/2012\nIN THE LABOUR TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nLABOUR TRIBUNAL CLAIM NO.595 OF 2012\n---------------------\nBETWEEN\nCHENG KWOK WAH（鄭國華）\n3rd Claimant\nLAI AH LOI（黎亞來）\n4th Claimant\nLIU FAT HOI（廖發開）\n7th Claimant\nHO CHING HOI（何清海）\n9th Claimant\nHSU CHE CHEONG（徐志中）\n11th Claimant\nand\nLI HING CLEANING SERVICES CO. LIMITED\n（利興清潔服務有限公司）\nDefendant\n----------------------\nBefore : Ms. Michelle Lam, Presiding Officer\nDates of Hearing: 21-23 and 26-27 March, 25-28 May and 14 June 2012\nDate of Decision : 13 July 2012\nDate of Reasons for Decision: 20 September 2012\nREASONS FOR DECISION\nBackground\n1.\nThe five Claimants herein, being the 3\nrd\n, 4\nth\n, 7\nth\n, 9\nth\nand 11\nth\nClaimants, claim against the Defendant for severance payments and alternatively terminal payments. The Defendant denies liability to pay but does not dispute the quantum of the claims.\nBackground facts\n2.\nThe background facts of the present case are not subject to serious dispute.\n3.\nThe Defendant provided various cleaning services to the Government and also various types of private and public organizations. Following a tender exercise, the Defendant entered into a two-year “Street Cleaning Services Contract for Wanchai” with the Food and Environmental Hygiene Department (“FEHD”) under which the Defendant provided cleaning services to FEHD for streets in Wanchai from 1 January 2008 to 31 December 2009. Following a subsequent tender exercise, the Defendant entered into another two-year “Street Cleaning Services Contract for Wanchai”, i.e. Government Service Contract No. FEHDSC/63/09, with the FEHD (“FEHD Contract”), under which the Defendant continued to provide cleaning services for streets in Wanchai from 1 January 2010 to 31 December 2011. On 7 December 2011, however, the FEHD notified the Defendant in writing that it was not selected as the contractor in the new tender exercise for the two-year period starting from 2012, and hence no new service contract would be made with the Defendant upon expiry of the FEHD Contract on 31 December 2011.\n4.\nA total of 375 staff members were affected by then. 371 of them were engaged on monthly basis and had each entered into a “Standard Employment Contract for Employees of Contractors of Government Services Contract” with the Defendant (“Government Standard Contract”). This was a pro forma Standard Employment Contract which, pursuant to the mandatory requirement of the government, contractors had to enter into with non-skilled workers whom they employed to provide services under any Government Services Contract. For the remaining four staff members, as they were temporary daily-wage workers who had worked for less than seven days, the Defendant was not required to enter into Government Standard Contracts with them.\n5.\nIn mid to late December, the Defendant sent personnel to various roll-call points across the district where cleaning services were provided, informing the cleaning workers that the FEHD Contract would end on 31 December. Cleaning workers of less than two years’ service were given seven days’ notice of termination of their employment contracts, whereas workers of more than two years’ service, totalling 163, were asked whether they would accept re-deployment by the Defendant to other places of work starting from 1 January 2012. Some of the staff members signed a pro forma “Staff Reply Slip on Arrangements upon Expiry of Contract at Site” prepared by the Defendant (“Reply Slip(s) on Expiry of Contract”).\n6.\nThe Defendant was notified by the Labour Department on 23 December that the Cleaning Workers Union and the Department had received complaints from workers against the Defendant, alleging that the Defendant had misled workers into signing the Reply Slips on Expiry of Contract with a view to evading liability for severance payment. The Labour Department invited the Defendant to attend a meeting with its staff scheduled for 28 December.\n7.\nAmong the attendees of the meeting on 28 December were two officers from the Labour Department; one Ms Wu Mei-lin, an officer of the Cleaning Workers Union (“the Union Representative”); and one Ms Woo Ching Sum Connie, Executive Director of the Defendant (“the Company Representative”). Some of the cleaning workers were notified by the Union to attend the meeting, and some by fellow workers.\n8.\nNo agenda was set for the above meeting. No pre-arrangement was made as to the time of attending the meeting or the number of attendees, and the cleaning workers went in and out of the meeting randomly and freely. As there was no outline of topics for discussion, the Defendant played a passive role at the meeting and merely answered questions from individual staff members. As the meeting became very disorderly, the Union Representative took the initiative to propose that the Defendant should set out its deployment arrangements in writing, specifying the new working hours and places of work for each member of staff, and to request that each member of staff be given a copy of those written arrangements at the meeting on the following day.\n9.\nSimilarly, among the attendees of the meeting on 29 December were two Labour Department officers, the Union Representative and the Company Representative. The Defendant had prepared 162 copies (with one person being omitted) of “Notification of Re-deployment to Workplaces” (“Re-deployment Notification”), each of which set out the new place of work to which a particular staff member would be deployed and his working hours. At that time, the Labour Department and the Union Representative asked the Company Representative to distribute, in person and on the spot, the Re-deployment Notifications to each staff member present at the meeting. Regarding the Re-deployment Notifications to the 26 staff members who did not attend the meeting, as the Labour Department and the Union Representative both refused to collect them on behalf of those staff members, the Defendant took the copies back.\n10.\nSome of the staff members who attended the meeting (including the five Claimants herein) wrote down the reasons for refusing to be re-deployed in the respective Re-deployment Notifications distributed to them and then returned them to the Company Representative on the spot. The Company Representative said that she would take into account the replies of each individual and consider whether they would be re-deployed.\n11.\nOn the following day, namely 30 December, the Defendant revised the re-deployed work places and/or working hours of some of the staff members. As regards the five Claimants herein, only the 9\nth\nand 11\nth\nClaimants had their re-deployed work places and/or working hours revised. However, the Defendant only sent the revised particulars concerned to the Union Representative and the Labour Department by e-mail without notifying the staff members individually.\n12.\nHaving sent the e-mail, the Defendant telephoned the Labour Department and the Union Representative to see if they had duly received the e-mail. Apart from this, the Defendant did not communicate any further with the workers, the Labour Department or the Union Representative regarding the arrangements on re-deployment or resignation.\n13.\nSome of the workers were dissatisfied with the Defendant’s arrangements and took part in a strike on 31 December in which the Union also participated.\n14.\nOn 6 January 2012 the Defendant sent by post the Notifications of Termination of Employment Contract to those cleaning workers who did not turn up for work at their new posts after 1 January, including the five Claimants.\n15.\nOf the 163 workers of two years’ service or more, only six continued to work for the Defendant after 1 January. These six workers had already entered into employment contracts with the Defendant for the provision of services under other Government services contracts.\nThe five Claimants\n16.\nExcept for the 4\nth\nClaimant, who started working for the Defendant on 4 July 2008, the Claimants started working for the Defendant on 1 January 2008. Each of the five Claimants had entered into his own Government Standard Contract with the Defendant when he first joined the Company. Those contracts specified that they were employed by the Defendant as cleaning workers providing cleaning services in Wanchai district. As the previous “Street Cleaning Services Contract for Wanchai” between the Defendant Company and the FEHD came to an end on 1 January 2010 and they entered into a new contract – the FEHD contract, the Defendant was required to enter into another Government Standard Contract with each of the five Claimants as required by the FEHD contract. All these contracts came into effect on 1 January 2010 and the Claimants’ wages were revised.\n17.\nOn 1 May 2011, following the implementation of the\nMinimum Wage Ordinance\n, the Defendant entered into another Government Standard Employment Contract with each of the five Claimants which took effect from 1 May 2011 and under which wages were revised (“the 3rd Contract(s)”). The second and the 3rd Contracts mentioned above both specified that the places of work of the five Claimants were within the service area specified in the FEHD contract (with the FEHD contract number stated), and also specified the Claimants’ respective working hours and monthly wages.\n18.\nThe five Claimants had provided services exclusively under the “Wanchai Street Cleaning Services Contracts” ever since their recruitment by the Defendant until 31 December 2011. Except for the 7\nth\nClaimant, whose working hours had been varied once during his employ with the Defendant, the places of work and the working hours of the Claimants had never changed. Their working hours were specified in their respective Government Standard Contracts with the Defendant, and their places of work were within the service area under the FEHD contract. The relevant particulars are set out below:\nClaimant\nPlace of Work\nWorking Hours\nNumber of Working Hours\nFrom\nTo\n3\nrd\nClaimant\nCanal Road Public Toilet\n17:30\n23:30\n6 hours\n4\nth\nClaimant\nGloucester Road point\n17:30\n23:30\n6 hours\n7\nth\nClaimant\nWanchai streets\n07:00\n11:30 and\n9.5 hours\n12:30\n17:30\n9\nth\nClaimant\nWong Nai Chung Road Public Toilet\n17:30\n23:30\n6 hours\n11\nth\nClaimant\nKat On Street Public Toilet\n17:30\n23:30\n6 hours\n19.\nThe personal background of the five Claimants is summarized below:\nClaimant\nAge\nEducation Level\nResidential Address\nDate of joining the\nDefendant (in 2008)\n3\nrd\nClaimant\n80\nPrimary 3\nChai Wan Estate\n1 January\n4\nth\nClaimant\n64\nCan write his own name\nLei Tung Estate,\nAp Lei Chau\n4 July\n7\nth\nClaimant\n72\nPrimary\nStone Nullah Street,\nWanchai\n1 January\n9\nth\nClaimant\n84\nPrimary 3\nHo Man Tin Estate,\nKowloon\n1 January\n11\nth\nClaimant\n71\nPrimary\nBelcher’s Street,\nKennedy Town\n1 January\nContact on two occasions\n20.\nDuring the period from 7 December 2011 to 6 January 2012 when the Defendant sent dismissal letters by post to the five Claimants, the five Claimants and the Defendant had contacted each other on only two occasions in relation to the arrangements after 31 December (except for the 9\nth\nClaimant, who was present for some time at the Labour Department meeting on 28 December). The first one took place in mid to late December when the Defendant sent personnel to various roll-call points, informing the workers of the expiry of the FEHD contract on 31 December and enquiring if they were willing to be re-deployed to other places of work. All but the 11\nth\nClaimant signed the “Reply Slip on Expiry of Contract”.\n21.\nThe second occasion was when all the five Claimants attended the Labour Department meeting on 29 December, at which the Re-deployment Notifications were distributed to them. However, the Defendant did not hold any direct or separate discussion with any of the Claimants. According to the Re-deployment Notifications given to the Claimants, the work arrangements after 1 January 2012 which the Defendant required of the five of them are as follows:\nClaimant\nPlace of Work\nWorking Hours\nNumber of Working Hours\nFrom\nTo\n3\nrd\nClaimant\nSheung Wan Municipal Services Building\n Public Toilet\n17:00\n23:00\n6 hours\n4\nth\nClaimant\nWong Nai Chung Market\n16:30\n23:00\n6.5 hours\n7\nth\nClaimant\nSheung Wan Municipal Services Building\n07:00\n12:00 and\n9 hours\n13:00\n17:00\n9\nth\nClaimant\nSheung Wan Municipal Services Building\nPublic Toilet\n17:00\n23:00\n6 hours\n11\nth\nClaimant\nTang Lung Chau Market Public Toilet\n14:00\n18:00 and\n7 hours\n19:00\n22:00\n22.\nOn 30 December the Defendant re-arranged the workplaces and working hours of the 9\nth\nand 11\nth\nClaimants (as shown below), but the arrangement was not communicated to those two Claimants.\nClaimant\nPlace of Work\nWorking Hours\nFrom\nTo\nNumber of Working Hours\n9\nth\nClaimant\nLockhart Road Municipal Market\n17:00\n22:00\n5 hours\n11\nth\nClaimant\nSheung Wan Municipal Services Building Public Toilet\n17:00\n23:00\n6 hours\nClaimants’\nc\nase\n23.\nIt was the five Claimants’ case that they had at various points of time entered into three Government Standard Contracts with the Defendant, which specified that the Claimants were employed to provide cleaning services under the “Wanchai District Street Cleaning Services Contract” between the Defendant and the FEHD, with places of work being confined to the locations at which services were to be provided under the said contract, and which also specified the Claimants’ working time, number of working hours and wages. Given that, following the expiry of the FEHD contract on 31 December, the parties did not enter into new employment contracts, nor did the Defendant offer to enter into new contracts with the Claimants or renew their existing contracts pursuant to the\nEmployment Ordinance\n, the Defendant is liable for severance payments or terminal payments.\nDefendant\n’s\nc\nase\n24.\nThe Defendant’s case is that its employment relationship with the five Claimants did not terminate as a result of the expiry of the FEHD contract, because the Defendant had notified the Claimants in mid-December that they would be re-deployed to other workplaces starting from 1 January 2012 and had also given the Claimants written notice on 29 December informing them of the new time and place of work. It was just that the Claimants did not comply with the re-deployment order by failing to turn up for work at the new workplaces on or after 1 January 2012. The Defendant contends that, as the Claimants failed to comply with a legitimate and reasonable order, the Defendant was entitled to issue to them notices of dismissal on 6 January, notwithstanding it was stated therein that the Defendant would not claim against the Claimants for wages in lieu of notice. The Defendant therefore considers the Claimants’ claims unjustified.\n25.\nThe five Claimants gave evidence in court and called the Union Representative as their witness, whereas the Defendant called the Company Representative and Wong Shuk Yin, the Defendant’s Deputy Human Resources Officer, to give evidence in court.\nFindings of\nf\nact\n26.\nIn determining the present case, I have carefully considered all the witness statements and exhibits submitted by the parties, the testimonies and demeanour of the witnesses in court, as well as all relevant surrounding circumstances.\nSeverance\np\nayment\n27.\nUnder\nsection 31B\nof the\nEmployment Ordinance\n(\nCap 57\n), where an employee who has been employed under a continuous contract for a period of not less than 24 months is dismissed by his employer by reason of redundancy, the employer shall be liable to pay to the employee a severance payment.\n28.\nIt is not disputed in the present case that the five Claimants had each been employed for not less than 24 months under a continuous contract. The issue is whether they were dismissed by reason of redundancy.\n29.\nSection 31D\nof the\nEmployment Ordinance\nprovides as follows:\n“(1) For the purposes of and subject to this Part, an employee shall be taken to be dismissed by his employer if, but only if -\n(a) the contract under which he is employed is terminated by the employer with or without notice or payment in lieu thereof other than in accordance with section 9;\n(b) where under that contract he is employed for a fixed term, that term expires without being renewed under the same contract; or\n(c) the employee terminates that contract with or without notice or payment in lieu, in circumstances such that he is entitled to terminate it without notice or payment in lieu in accordance with section 10 by reason of the employer’s conduct.\n(2) An employee shall not be taken for the purposes of this Part to be dismissed by his employer if -\n(a) his contract of employment is renewed, or he is re-engaged by the same employer under a new contract of employment; and\n(b) the renewal or re-engagement takes effect immediately on the ending of his employment under the previous contract.\n(3) For the purposes of the application of subsection (2) to a contract under which the employment ends on a rest day or holiday, the renewal or re-engagement shall be treated as taking effect immediately on the ending of the employment under the previous contract if it takes effect on or before the next day after that rest day or holiday.”\nDismissal\n30.\nHaving carefully considered all the evidence, I find the five Claimants to have been dismissed by the Defendant in the circumstances as provided in section 31D(1)(b). In other words, they were employed under the 3rd Contracts for a fixed term, upon expiry of which the contract was not renewed. I consider that the fixed term concerned is the period from 1 May 2011 to 31 December 2011.\n31.\nThe employment relationship between the five Claimants and the Defendant since 1 May 2011 was based on the 3rd Contracts which they individually entered into with the Defendant. All the five contracts were Government Standard Contracts in the prescribed format and terms, and they differed from one another only in terms of wages, working time and the number of working hours.\n32.\nIn construing the five contracts, I have taken into account the underlying factual matrix. The Defendant entered into the FEHD contract, following which the five Claimants were employed to provide services under that contract, which expressly required the Defendant to enter into a Government Standard Employment Contract with each of the Claimants.\n33.\nAs a matter of fact, since April 2005, in respect of service contracts mainly involving the use of non-skilled workers, the Government has required the relevant service contractors to enter into Standard Employment Contracts with non-skilled workers in their employ. This is to ensure that the places of work, working hours and calculation and amount of wages of those employed by the contractors to provide services under the service contracts are governed by the relevant terms of the service contracts, the objective of which is to provide clear and stable places and time of work to non-skilled workers who provide services for the Government but who are employed by the service contractors. The service contracts also provide for a penalty points system under which contractors who fail to comply with the above requirements are penalized.\n34.\nThe 3rd Contract is the version of the Government Standard Employment Contract which has been revised consequential to the implementation of\nMinimum Wage Ordinance\non 1 May 2011.\n35.\nThe relevant terms and conditions of the five employment contracts read as follows:\n“Standard Employment Contract\nfor Employees of Contractors of Government Service Contract (Note 1)\nGovernment Service Contract No.:\nFEHDSC/63/09\n(Note 2)\n…\n1. This employment contract shall commence on 1 May 2011.\n2. The Employee shall be employed by the Employer as cleaning worker (job title). The place of work is street cleaning services in Wanchai district (as specified in Government service contract no.: (Note 2) FEHDSC/63/09). If necessary, the Employer shall be allowed to deploy the Employee to work within the Hong Kong Island region (Note 3) under an urgent situation or on an\nad hoc\nand limited basis.\n3. (a) The Employee shall work 6 days per week, and his/her daily working hours shall be: (Note 4)\n[\nstate the exact time of going on and off duty\n]\nUnder exceptional circumstances and at the request of the relevant procuring department, the Employer may make appropriate adjustment to the above working hours, provided that such adjustment shall be on an\nad hoc\nbasis and shall not affect the original daily number of working hours of the Employee.\n…\n6. In respect of work done in accordance with the working hours specified in Clause 3(a) of this employment contract, the Employee shall receive:\n(a) wages of HK$… [\nstate the exact amount of wages\n] per month …\n21. Any variation of, amendment to, cancellation of or addition to any terms of this employment contract (including the Schedule) shall be void unless it does not extinguish or reduce any right, benefit or protection conferred upon the Employee by this employment contract and is signed by both parties. The Employer shall also provide a copy of the amendments signed by both parties to the Employee for his/her retention.\n[\nEmphasis added\n]\n36.\nFurthermore, Clauses 22 and 23 of the 3\nrd\nContract state that the Employee and the Defendant agree that a copy of the 3\nrd\nContract, wage records, attendance records and other relevant information shall be provided to the FEHD for record and for the purpose of monitoring the Defendant’s performance of employment-related obligations under the FEHD contract.\n37.\nIt follows that Clause 2 of the contract strictly provides that the place of work must be the place where cleaning services are to be provided under the FEHD contract. In other words, the Claimants can only work within the areas specified in the FEHD contract.\n38.\nAlthough a mobility clause is also provided under Clause 2, it is a rather stringent provision in that it only allows the Defendant to adjust the deployment within Hong Kong Island region where it is necessary to do so as an emergency measure or on an\nad hoc\nand limited basis. In other words, even when there is an actual need, the Defendant may not re-deploy an employee to work somewhere beyond the cleaning service area specified in the FEHD contract for an extended period of time, let alone permanently.\n39.\nTherefore, it is apparent from Clause 2 itself that the subsistence of the 3\nrd\nContract was highly dependent on the fixed term of the FEHD contract. And paragraph 1(a) of Part 2 of the FEHD contract [Exhibit D-238, page 34] expressly stated that the fixed term of the contract was from 1 January 2010 to 31 December 2011. This being the case, a term must have been implied in the 3\nrd\nContract that the employment contract would come to an end on 31 December 2011.\n40.\nFurthermore, the existence of such an implied term finds support in the other terms and provisions of the 3\nrd\nContract.\n41.\nFirst of all, the title of the contract made it clear that it was an employment contract between the Defendant as a FEHD contractor and its employees. Moreover, the salient terms of the contract, such as those on working time, number of working hours and wages, were all governed by the relevant provisions of the FEHD contract. Furthermore, the contract expressly prohibited any variation of, amendment to, cancellation of or addition to any terms of the contract, and also provided that the rights and benefits conferred upon the employee by the contract must not be extinguished or reduced. Both parties expressly agreed to allow the FEHD to monitor the performance of the contract.\n42.\nIt would indeed be impossible to perform or enforce these terms following the expiry of the FEHD contract. For this reason, a term must have been implied in the 3\nrd\nContract that the 3\nrd\nContract would be terminated at the same time as the expiry of the FEHD contract. As such, the 3\nrd\nContract must have come to an end on 31 December 2011.\n43.\nIt follows that, according to the 3\nrd\nContract which each of the five Claimants entered into with the Defendant, the fixed term of employment of each of them expired on 31 December 2011. After the expiry of the term, the Defendant failed in a subsequent tender exercise and was therefore unable to renew the terms of employment of the five Claimants under the same contracts. For this reason, the circumstances of their dismissal fall within sections 31B(2) and 31D(1)(b) of the\nEmployment Ordinance\n, and accordingly, pursuant to section 31B(1)(a), they shall be taken to be dismissed by their employer by reason of redundancy, and the Defendant is liable for severance payments.\n44.\nAlternatively, even if the said implied term did not exist, which means that the 3\nrd\nContract did not come to an end with the expiry of the FEHD contract on 31 December 2011, the Defendant would still not have been able to comply with Clause 2 of the 3\nrd\nContract.\n45.\nThe reason is that, with the expiry of the FEHD contract on 31 December 2011, the Defendant could no longer assign the five Claimants to the places of work specified in the FEHD contract, but as pointed out above, the mobility clauses in Clause 2 prohibited the Defendant from re-deploying an employee to work at places other than those specified in the FEHD contract for an extended period of time or on a permanent basis.\n46.\nTherefore, when the Defendant, as mentioned above, sent personnel to contact the five Claimants individually for the first time so as to ascertain their intentions regarding the Defendant’s proposal to re-deploy them to other places of work, the Claimants were entitled to refuse the re-deployment. This was all the more so given the fact that they had been working in the same place throughout the many years of employment by the Defendant.\n47.\nWhen the Defendant issued Re-deployment Notifications to the five Claimants on 29 December, ordering them to show up for work on 1 January 2012 at the specified new places of work, of which none was among those specified in the FEHD contract, the Defendant had unilaterally varied a major employment condition on which the parties had mutually agreed.\n48.\nFurthermore, Clause 3 of the 3\nrd\nContract clearly stated that the Defendant could make appropriate adjustments to the working hours only in special circumstances and upon request of the FEHD, and that such adjustments were to be temporary and should not affect the daily number of working hours as originally prescribed. This being the case, the Re-deployment Notifications show that the Defendant had unilaterally varied the working hours and even the number of working hours, thereby unilaterally varying another major employment condition.\n49.\nFor these reasons, the five Claimants were entitled to refuse re-deployment on the spot as they did and not to show up at the new places of work on 1 January 2012. It was beyond doubt that in doing so, they were exercising their rights to terminate their respective employment contracts in response to the employer’s breach.\n50.\nThese rights are aptly illustrated in the case of\nWestern Excavating (ECC) Ltd v Sharp\n[1978]\n1 QB 761\nand form part of the legal principle of constructive dismissal. Under this principle, if an employer acts in serious breach of an employment contract, which expressly or implicitly shows that he no longer intends to be bound by the essential terms of the contract, the employee is entitled to treat himself as discharged from any further performance of his obligations under the contract. If the employee chooses to do so, he terminates the contract by reason of the employer’s conduct. In that case, the breach of contract by the employer constitutes constructive dismissal. The employee is entitled to leave at the instant without giving any notice to the employer, or he may give notice to the employer or leave at the end of the notice period. Applying this legal principle, it was by reason of the serious breach of contract by the Defendant that the five Claimants terminated the employment contract with the Defendant after 31 December 2011, and the Defendant could neither allege that the Claimants voluntarily resigned on 6 January 2012 by reason of absence for work at the new places of work, nor dismiss them summarily pursuant to\nsection 9\nof the\nEmployment Ordinance\n, and hence cannot rely on\nsection 31C\n(1) of the\nEmployment Ordinance\nto avoid liability for severance payments. On the other hand, under 31D(1)(c), the five Claimants are taken to have been dismissed by their employer and the Defendant is liable to pay to them severance payments.\n51.\nAlthough the Defendant contends that the five Claimants were bound by the unlimited mobility clause in the Code of Conduct for Staff prepared by the Defendant, there is no concrete evidence whatsoever which indicates that the Defendant had ever distributed the Code or made the contents thereof known to the five Claimants. Further, it was only in the middle of the trial that the above contention was raised out of the blue. I do not believe that the Defendant had ever drawn the attention of the five Claimants to the abovementioned clause.\n52.\nFurthermore, given the presence of an express mobility clause in Clause 2 of the 3\nrd\nContract, coupled with the stringent restrictions in Clause 21 on variation of contract terms, the 3\nrd\nContract could not possibly allow for the unlimited mobility clause in the Code of Conduct for Staff or an implied term permitting permanent re-deployment of the Claimants to other places of work (\nWong Yuk Ling v East East Food Products Limited\n, HCLA 95/2002).\nReply Slip\ns\non Expiry of Contract\n53.\nOn the other hand, I have also carefully considered the effect, if any, of the following incidents on the Claimants’ case, namely the first contact the Defendant made with the five Claimants in relation to the ending of the FEHD contract, and the fact that the 3\nrd\n, 4\nth\n, 7\nth\nand 9\nth\nClaimants signed the Reply Slips on Expiry of Contract.\n54.\nThe overall case of the five Claimants is that, around mid to late [December], the Defendant sent personnel to their respective places of work during their respective working hours (some time after 15 December for the 3\nrd\nand 4\nth\nClaimants; on 23or 24 December for the 7\nth\nClaimant; on 26 December for the 9\nth\nClaimant; and on 28 December for the 11\nth\nClaimant), telling them the FEHD contract would come to an end on 31 December and asking if they were willing to be re-deployed to other workplaces thereafter, but without specifying the places, times and re-deployment arrangements. The five Claimants expressed their refusal right away.\n55.\nAccording to the 3\nrd\n, 4\nth\n, 7\nth\nand 9\nth\nClaimants, at that time they were shown a document which they did not understand and the contents of which were not explained to them. They had no idea whatsoever about the contents of the document when they signed it. The 4\nth\nClaimant’s case is that he was specifically told that he would be paid wages and annual leave pay as soon as possible after he signed the document at hand. The 7\nth\nClaimant’s case is that he signed the document as instructed as he was told that the document was merely a Notice of Expiry of Contract. The other two Claimants’ case is that they were arranged to sign the document without knowing what was going on. All the four of them claim that they did not know that refusal to accept the re-deployment was tantamount to voluntary resignation, and that they had never indicated that they would resign.\n56.\nOn the other hand, while the Company Representative, who claimed to have talked to the 3\nrd\nand 9\nth\nClaimants individually in person and had them sign the Reply Slips on Expiry of Contract in mid-December was called by the Defendant to give evidence in court, the staff members who had communicated with the other three Claimants regarding the Reply Slips on Expiry of Contract were not called as witnesses.\n57.\nThe Company Representative contended that although specific re-deployment arrangements or places of work had yet to be confirmed when she talked face to face with the 3\nrd\nand 9\nth\nClaimants individually, she did read out to them the contents of the Reply Slips including the two available options and leave them to make their own choices, telling them that it was for the purpose of ascertaining their preferences before proceeding to make further arrangements. When she learned that they refused to accept re-deployment to other places of work, she ticked the second option for them and then let them sign the Reply Slips. She testified that she also told the 9\nth\nClaimant that his failure to follow the re-deployment by the Defendant amounted to resignation.\n58.\nAnd under cross-examination, Ms. Wong Shuk Yin admitted in the end that she neither communicated directly with the five Claimants nor had any idea of the details of the communication between her colleagues and the five Claimants. She only maintained that, upon instructions given by her superior on 16 December, she visited various FEHD cleaning services roll-call points on 20 and 21 December, bringing along the Reply Slips on Expiry of Contract and informing staff members of less than two years’ service of their last day of service; and after 23 December, she notified staff members of more than two years’ service and ascertaining their intentions regarding re-deployment to other places of work.\n59.\nHaving carefully considered all the evidence, including all the witness statements, exhibits and testimonies, and having closely observed their demeanour in the course of giving evidence in court and taken into account all the relevant surrounding circumstances, I do not consider any of the Defendant’s witnesses veracious or reliable. There were extensive contradictions in their testimonies and statements, which were also inconsistent with the actual circumstances on the material days. Furthermore, when they gave evidence, they were evasive from time to time and kept changing their stance. I find their evidence to be incredible.\n60.\nOn the contrary, although there were discrepancies between the evidence given by the four Claimants in court and their witness statements, given they are seniors with limited education and, as far as I could observe during the trial, their hearing and ability in comprehension and expression are obviously poor, it is understandable that some of their thoughts were not properly expressed in their statements, which were not prepared by professionals on their behalf. However, in the course of giving evidence, as long as the questions put to them were clear enough for them to truly understand their meaning and they were given sufficient time to organize their thoughts, they could eventually give clear accounts of the crucial details of events. Their testimonies were also consistent with both their individual circumstances and objective circumstances. I accept their evidence.\n61.\nOn the contrary, I do not accept that the Company Representative had face-to-face conversations with the 3\nrd\nand 9\nth\nClaimants and had the Reply Slips on Expiry of Contract signed. The reason is that such contention had never been mentioned in any of her statements, nor had it ever been raised at any of the numerous pre-trial hearings or any stage of the two-day trial. What is more unbelievable is that she did not mention such contention or put it to the 3\nrd\nClaimant when the 3\nrd\nClaimant gave evidence. She was unable to give a reasonable explanation of her failure to recognize the appearance of the 3\nrd\nor 9\nth\nClaimant all along. She could not even provide such basic information as the date and time. She also gave various versions of what people did at the scene. Given a time lapse of only two months and her background as a young professional, her memory of the events should have been fresh.\n62.\nFurthermore, it is clear from a comparison of the handwriting on the two sets of Reply Slips on Expiry of Contract [Exhibits D-208(1) and D-208(7)] which she claimed to have been written by her, and further comparison of the same with what she wrote in court [Exhibits D-210 and D-213(1)] and in other documents, that she was lying.\n63.\nTherefore, the Defendant did not have any substantial evidence to dispute the fact that the five Claimants had communicated with personnel sent over by the Defendant at that time.\n64.\nFurthermore, turning to the Reply Slips themselves, they contain the following relevant provisions:\n“[ ] I am willing to be re-deployed to Yue Wan Estate or Hong Kong Museum of Coastal Defence or Chi Fu Fa Yuen or\n( )\nas from\n1 January 2012\nto perform duties of the same nature. From the date hereof until the date of re-deployment, if I change my mind and do not intend to work at\n( )\n, I will be taken as resigning of my own accord and have to give 7 days’ notice or payment in lieu of notice to the Company in order to terminate the employment contract.\n[ ] For personal reasons, I am not willing to be re-deployed to other places of work for personal reasons, and I also decide to resign of my own accord and my last working day is _____(Day)____(Month)_____(Year).\n*\nPlease delete as appropriate\n* Please tick as appropriate”\n65.\nThere is no doubt that the Reply Slips offered the workers only two options, one being willing to be re-deployed to other places of work, and the other being unwilling to be re-deployed, which would be taken as a decision to resign voluntarily. No other options were available. Therefore, it is highly probable that the Reply Slips did not truly reflect the intentions of the signatories, which is also consistent with the contention made by the four Claimants that they had merely indicated that they were unwilling to accept the re-deployment but had never indicated that they would resign.\n66.\nAnd taking into account each Claimant’s age, education background and handwriting on the relevant Reply Slip, I accept the Claimants’ evidence that they simply put their signatures on the Reply Slips and that the rest was filled in by staff members of the Defendant. The Claimants could not read and understand the contents of the Reply Slips, and no one explained the contents to them. They did not know that refusal to be re-deployed would be taken as voluntary resignation.\n67.\nTherefore, having carefully considered the proper construction of the Reply Slips and the fact that the four Claimants signed them without full knowledge and understanding of their effect, I find that although they signed the Reply Slips, the four Claimants had never decided or indicated that they would resign of their own accord, and the Reply Slips did not serve to terminate the employment relationship between the Defendant and the four Claimants.\n68.\nIndeed, the Defendant’s case and the conduct of the parties further demonstrate the fact that the four Claimants’ signing of the Reply Slips on Expiry of Contract had not been taken as voluntary resignation.\n69.\nFirst of all, on the Defendant’s own case, it sent staff members to various roll-call points for the purpose of informing the cleaning workers of the expiry of the cleaning services contract on 31 December, and the Defendant merely wanted to make preliminary enquiries about the workers’ intentions regarding re-deployment so as to enable the Defendant to decide the way forward. For this reason, particular re-deployment arrangements and new places of work were yet to be confirmed.\n70.\nFurthermore, neither party had ever made any subsequent move in respect of voluntary resignation. The Defendant took no corresponding steps to accept their resignation; instead, it issued re-deployment notifications to the five Claimants on 29December, requiring them to turn up for work at the new places of work on 1 January 2012, failing which they would be regarded as being absent without leave.\n71.\nSubsequently on 6 January 2012, the Defendant sent notifications to the Claimants by post, informing them that by reason of their absence at the new places of work on 1 January 2012 and thereafter, they were deemed to have resigned of their own accord and terminated the employment contracts. This shows that at no time did the Defendant or the Claimants regard the signing of the Reply Slips by the four Claimants as voluntary resignation. The Defendant was all along fully aware that the Claimants had not indicated that they would resign.\nExclusion from right to\ns\neverance\np\nayment\n72.\nI have also considered whether the re-deployment of staff to other working places by the Defendant would enable the Defendant to avoid liability to pay severance payment by relying on\nsection 31C\nof the\nEmployment Ordinance\n. As the Defendant sought to change the times and places of the Claimants’ employment and most of the terms and conditions of the 3\nrd\nContract could not be retained, I only have to consider whether section 31C(3) is applicable, in other words, whether the Defendant had made written offers to the five Claimants to renew their employment contracts or to re-engage them under new contracts not less than 7 days before the termination of the employment contracts, and in relation to the five Claimants the offers constituted offers of suitable employment which were no less favourable than hitherto, so that if the five Claimants unreasonably refused those offers, they shall not be entitled to severance payments.\n73.\nViewing the arrangements made by the Defendant as a whole, I do not consider section 31C(3) applicable. The Defendant had only contacted the five Claimants twice in relation to the arrangements after 31 December 2011, with only the first contacts with the 3\nrd\n, 4\nth\nand 7\nth\nClaimants made no less than 7 days before the termination of the employment contracts or the expiry of the contract terms as required by section 31C(3).\n74.\nBesides, during the course of the first contact, the Defendant only showed the Claimants the Reply Slips on Expiry of Contract which, however, contained no terms and conditions of new contracts, not even essential terms of employment such as working hours, wages, specific places of work and holidays. They simply could not satisfy the statutory requirements.\n75.\nThe second contact was made on 29 December, which temporally failed to meet the 7-day requirement. Furthermore, the re-deployment notices, being the only documents shown, specified nothing but the working hours and places of work and were silent on wages or other essential terms and conditions of employment.\n76.\nMoreover, the working hours of each of the five Claimants were varied. The working hours of the 7\nth\nand 11\nth\nClaimants were even significantly varied, and this would, as the Claimants pointed out, certainly affect their other part-time engagements and family arrangements. In addition, the five Claimants had hitherto worked at the same places all along; given their senescence and limited education or even illiteracy, they would naturally find it difficult to work in a completely new environment.\n77.\nFurthermore, at no stage did the Defendant specify the amount of wages. Although the Company Representative contended that at the Labour Department meeting on 28 December she mentioned that the wages would not be lower than those in the original contracts or the statutory minimum wage, none of the four Claimants attended that meeting. Nor is there evidence that the 9\nth\nClaimant, who was the only Claimant present for some time at the meeting on 28 December, was actually present at the moment the Company Representative made the above statement on wages. In any event, even if it is assumed that the five Claimants were all present, given that the Defendant had varied their places of work, working times and number of working hours, a general statement that the wages would not be lower than those in the original contracts or the statutory minimum wage would not, without more, suffice to show that the new offers of employment were not less favourable than hitherto. All these indicate that the five of them had not unreasonably refused the Defendant’s offers.\n78.\nIn the premises, the arrangements made by the Defendant failed to comply with the statutory requirements, and the five Claimants were entitled to refuse the Defendant’s offer on 29 December. The Defendant cannot avoid liability for severance payments on the ground that it had arranged new jobs for the Claimants.\nWorking for the new service contractor\n79.\nThe Defendant also sought to argue that, since 1 January 2012, the contractor who took over the FEHD service contract from the Defendant had employed the five Claimants as cleaning workers in their existing posts. However, the Defendant admitted that, as of the middle of the present trial, it had no idea at all whether the five Claimants were employed by that contractor. The Defendant also admitted that at no point during their employ by the Defendant had the five Claimants indicated that they would switch over to work for the new service contractor.\n80.\nOn the other hand, the five Claimants indicated that they had been awaiting specific arrangements by the Defendant and it was only when they heard nothing from the Defendant that they decided to work for the new service contractor from 1 January 2012, and written employment contracts were entered into only after they reported duty. This being the case, the Defendant cannot possibly avoid liability for severance payments on the ground that the Claimants eventually switched to another company on 1 January 2012.\nRuling\n81.\nHaving considered all the evidence and the various arguments and grounds of defence put forward by the Defendant, I do not consider any of those grounds sustainable. The employment contracts between the Defendant and the five Claimants came to an end following the expiry of the FEHD contract on 31 December 2011. As the parties neither renewed the existing contracts nor entered into any new contracts, the Defendant is liable to pay severance payments to the Claimants. Alternatively, even if the employment contracts did not come to an end upon the termination of the FEHD contract, the Defendant was in breach of the fundamental terms and conditions of the employment contracts by making the requests for re-deployment, and the Claimants were therefore entitled to refuse re-deployment on 29 December, not to turn up for work at the new places of work on 1 January 2012, and to seek severance payments.\n82.\nFor the above reasons, by virtue of\nsection 31D\nof the\nEmployment Ordinance\n, the five Claimants have been dismissed by reason of redundancy. Accordingly, I allow their claims under item (A) for severance payments and order that the Defendant do pay forthwith: HK$13,412.05 to the 3\nrd\nClaimant, HK$3,003.42 to the 4\nth\nClaimant, HK$21,848 to the 7\nth\nClaimant, HK$13,827.86 to the 9\nth\nClaimant, and HK$13,826.82 to the 11\nth\nClaimant.\n83.\nAs I have allowed the five Claimants’ claims for severance payments, their claims under the second item for terminal payments are dismissed.\n84.\nInterest on the said judgment sums is to be calculated in accordance with\nsection 39\n(3) of the\nLabour Tribunal Ordinance\n(\nCap 25\n).\nCosts\n85.\nI have considered the submissions on costs made by the parties. The basic principle governing awards of costs is that costs are to follow the event. There are no exceptional circumstances in the present case to justify a departure from that principle. As provided in\nsection 28\nof the\nLabour Tribunal Ordinance\n, costs include any reasonable expenses necessarily incurred and any loss of salary or wages suffered by a party and its witnesses in attending a hearing of the Tribunal. Having regard to the reasonableness of costs and the factual background to the present case, I order that the Defendant do pay forthwith: HK$197 to the 3rd Claimant, HK$1,020 to the 4th Claimant, HK$180 to the 7th Claimant, HK$290 to the 9th Claimant, and HK$199to the 11\nth\nClaimant.\n86.\nInterest on the above sums is also to be calculated in accordance with\nsection 39\n(3) of the\nLabour Tribunal Ordinance\nand to be paid by the Defendant\n.\n(Michelle Lam)\nPresiding Officer of the Labour Tribunal\nTranslated by the Judgment Translation Unit of the Judiciary and vetted by Mr Edmund Cham, Solicitor", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2012/LBTC000595X_2012.doc", + "file_name": "LBTC000595X_2012.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkldt/1983_HKLDT_145/LDMR000001_1982.txt b/en_cases_hkldt/1983_HKLDT_145/LDMR000001_1982.txt new file mode 100644 index 0000000..e41e61f --- /dev/null +++ b/en_cases_hkldt/1983_HKLDT_145/LDMR000001_1982.txt @@ -0,0 +1,242 @@ +LDMR000001/1982 +Statutory Electricity Easements - compensation for diminution in value of property - revocable modification of agricultural lease permitting residential use - whether residential user to be taken into account in assessing open market value of land - evidential value of owner’s asking sale price for property - affect on comparables of New Town layout - whether oversails affect value - whether danger to human and animal health - risk of future loss or damage - Held: 1. registration of easement and existence of oversails diminished open market value of property entitling owner to compensation; 2. no compensation payable for risk of future loss or damage but remedies for persons suffering actual loss available at common law and under statutory cause of action by way of damages and not by way of compensation - Sections 10, 11 Electricity Networks (Statutory Easements) Cap. 357, Section 12(c) Crown Lands Resumption Ordinance, Cap. 124. + +IN THE LANDS TRIBUNAL OF HONG KONG + + Miscellaneous Reference No.1 of 1982 + + IN THE MATTER of the Electricity Networks(Statutory Easements Ordinance, Cap.357 + +BETWEEN CHOW CHI KEUNG Applicant + +AND CHINA LIGHT & POWER COMPANY LIMITED Respondent + +JUDGMENT + +TRIBUNAL: His Honour Judge Cruden, Presiding Officer and +M.W. Phillips, Esq., Member. + + This is the first application for compensation under the Electricity Networks (Statutory Easements) Ordinance Cap. 357 which was enacted on the 11th day of July, 1980. The applicant is the registered Crown lessee of all that parcel of land containing 2178 square feet (202.34 square metres) being Lot 998 in Demarcation District 130, New Territories, Hong Kong. The lease was for a term, including renewals, of 99 years from the 1st day of July 1898 less the last 3 days thereof. + In 1981 the respondent commenced to construct a 400 KV transmission network in the New Territories. One of the reasons for the enactment of this new Ordinance was to facilitate the construction of the transmission line and to enable owners of land which suffers a diminution in value as a consequence of the construction of the network, to apply to the Tribunal for Compensation. + Under the Ordinance statutory easements may be created in favour of a power company, in the terms of a scheme approved by the Secretary of Lands and Works, to enable the power company to carry out works in accordance with the approved scheme. The respondent is a “power company” as defined in Section 2. + The respondent’s scheme to construct a 400 KV network was approved by the Secretary, under his earlier designation as Secretary of the Environment, and deposited in the Land Office on the 5th day of March 1981. Subsequently on the 25th day of March 1981 the Governor in Council ordered, pursuant to Section 3, that the provision’s of the Ordinance should apply to the approved scheme. Notice of the Order was published on the 27th day of March 1981 in No. 13 Volume CXXIII Hong Kong Government Gazette under L.N. 80 of 1981. + + The applicant’s property is situated near Lo Fu Hang Village which is south-east of To Yuen Wai, To Yuen Wai is on the main road between Tuen Mun and Yuen Long. There is no vehicular access to the appellant’s property which is about 30 minutes walking distance from To Yuen Wai along partly paved footpaths. + The Crown lease describes the property as a “padi lot” and we find that it is at present lawfully used for residential and agricultural purposes. The property is beyond the Tuen Mun New Town Layout Plan. We were informed that the property falls within an area zoned Lowland Rural Area on the Government’s internal department plans. At present pigs and chickens are reared and some vegetables are grown on the property. A house of two stories and an adjoining kitchen, used for residential purposes, are occupied by the applicant’s parents. There are also two pigsties with a total area of 51.68 square metres and chicken sheds of a total area of 38.99 square metres. + The right to compensation is contained in Section 10 which provides :- + + ”10.(1) Where an order made under this Ordinance affecting any land is registered by a power compensation under the Land Registration Ordinance, the company shall be liable to pay company to the person who, at the date of registration of the order is the owner of the land in respect of any diminution of the value of his estate or interest therein attributable to the registration of the order.” + + We are satisfied that the Order has been duly registered and that the applicant was at the date of registration the Crown lessee of the land. Section 10 goes on to give the Lands Tribunal jurisdiction to determine the amount of compensation, if any, payable in the case of a claim and Sub-section 6 provides that: + + ”(6) For the purposes of this section “value”, in relation to any land affected by an order made under this Ordinance, means the open market value of the land assessed as at the date of registration of the order.” + + However, the Section also provides that in determining the compensation payable thereunder, no compensation shall be paid for: + + ”(a) any expectancy or probability of the grant or renewal or continuance by the Crown or any person of any licence, permission, lease or permit whatsoever; + +(b) any use of the land which is not in accordance with the terms of the Crown lease under which the land is held.” + + At the hearing evidence was given as to the status of the house and related buildings used for domestic premises. In accordance with New Territories agricultural land practice the applicant is the holder of a Modification of Tenancy permitting him to maintain the residential buildings we have referred to on this agricultural land subject to the conditions appearing on the modification document. These conditions include: + 1. The permission may be cancelled on 1 month’s notice or where there a breach of the conditions forthwith. +2. The permission is not transferable. +3 The annual permit fee is $12. + In practice a purchaser of the property may, upon the existing Modification of Tenancy in favour of the vendor being cancelled, apply for a new Modification of Tenancy in his name. In a letter from the Principal Government Land Agent/Acquisition of the Lands Department dated the 30th day of July 1982 to the respondent, that officer confidently asserts that as the permit is of a temporary nature and is subject to cancellation in the case of breach of conditions: + +“ … no compensation shall be given under Section 10 of the Electrcity Networks (Statutory Easements) Ordinance 1980,” + + The respondent adopted that view in its submissions and contended that any valuation of the property must be on the basis that it is bare agricultural land without any buildings erected thereon. The respondent pointed out that Section 10(5) provides: + +”10. (5) In the determination of the amount of compensation, if any, payable under this section, no compensation shall be given in respect of - + (a) any expectancy or probability of the grant or renewal or continuance by the Crown or any person of any licence, permission, lease or permit whatsoever;” + + Our attention was drawn to the fact that Section 10(5) appears to have been modelled on Section 12(c) of the Crown Lands Resumption Ordinance, Cap. 124 which provides: + + ”12 In the determination of the compensation to be paid order this Ordinance - + + (c) no compensation shall be given in respect of any expectancy or probability of the grant or renewal or continuance by the Crown or any person of any licence, permission, lease or permit whatsoever; +Provided that this paragraph shall not apply to any case in which the grant or renewal or continuance of any licence, permission, lease or permit could have been enforced as of right if the land in question had not been resumed; and ” + + We are satisfied that the applicant could not have enforced any right to have the Modification of Tenancy renewed or continued. So had this been a resumption under the Crown Lands Resumption Ordinance, his position would not have been protected by the proviso to Section 12(c). We are further satisfied that the provisions of Section 10(5) and Section 12(c), are, for practical purposes, identical. + + The affect of Section 12(c) when land is resumed under the Crown Lands Ordinance was considered by the Court of Appeal in Ching Chun-Kau v. Director of Lands and Survey (1978) H.K.L.R. 320. In that case the land resumed was held under a Crown lease which at the date of resumption had an unexpired term of 22 years. However, the sole permitted use under the lease was for the purposes of a dairy. A dairy required an annual licence from the Director of Agriculture and Fisheries. The annual licence in that case had 6 months to run at the date of resumption and the grant of a new annual licence was within the discretion of the Director of Agriculture and Fisheries. The Lands Tribunal, relying on Section 12(c), held that the value of the unexpired term of the lease was not to be calculated on the basis of 22 years but merely on the 6 months remaining under the annual licence. + + The Court of Appeal had little difficulty in rejecting that approach and held that the land should be valued on the whole of the unexpired term of the lease of 22 years. On appeal Huggins J.A., thought Section 12(c) was irrelevant and would have been prepared to dispose of the appeal on that basis: + +“The short answer appears to me to be that the Claimant is not seeking compensation in respect of any expectancy or probability of the grant of a licence but in respect of the unexpired term of the Crown lease. … + The Tribunal felt constrained to limit the compensation to the period of six months, a period entirely unconnected with the unexpired term in respect of which the claim was made and dependant solely upon the relationship between the date of resumption and the date of expiry of the current dairy licence. It was, no doubt, a pure matter of chance that the resumption order was not made either on the day on which that licence was granted or on the day on which it expired. Had it been the latter day the Tribunal would presumably have awarded no compensation at all. Such an extraordinary result is not one which I could endorse unless driven by the clearest possible language. It was the force of the words of s. 12(c) which so impressed the Tribunal that they thought they were driven to that result. As I have said, I think that paragraph has no relevance to the case before us.” + + The Court of Appeal emphasised that the application for compensa-tion was for the unexpired 22 years of the Crown lease. The application was not for compensation for the expectancy of the renewal or continuance of the dairy licence. If the dairy licence were not renewed Huggins J.A. went on to point out that certain action could in any event have been taken against the Director of Agriculture and Fisheries or alternatively there were other remedies under the Crown lease. + + There are, of course, important differences between the instant facts and those in Ching Chun-kau V. Director of Lauds and Survey. In the latter case the claim was for compensation upon a resumption, while here we are concerned with compensation for diminution of value of land. The Lands Tribunal appealed from, attempted to limit the assessment of compensation to the 6 months remaining under the annual licence when the interest being resumed was the much longer term under the lease. + + The respondent here makes a far less ambitious submission. For it recognises that any valuation is to be based on the whole unexpired term of the Crown lease. It simply submits that in that valuation the buildings not authorised under the lease, but permitted by the Modification of Tenancy, should not be included. We recognise that Ching Chun-kau’s position against the Crown as lessor, was very different and more power-ful than the present applicant’s position as grantee under the Modification of Tenancy and as Crown lessee. + + However, the Court of Appeal’s judgment in Ching Chun-kau V. Director of Lands and Survey remains most helpful in indicating the limited extent of the perhaps otherwise apparently wide provisions of Section 12(c) and by analogy in this particular case Section 10(5). In view of the several factual differences it may be helpful if we return to the relevant provision of the Electricity Networks (Statutory) Easements Ordinance relating to compensation, namely Section 10. Under Section 10, as we have seen, the applicant is entitled to compensation for “any diminution of the value” of his land. Further the value of his land is the “open market value of the land” as at the date of registration of the order. + + Any accurate assessment of any diminution of value will usually include an assessment of the value of that land to provide a base. If there has been any diminution we must then quantify that diminution. The first task would require the open market value of the subject property to be determined. + + What then comprises the subject property for the purposes of this valuation? It is undisputed that it at least includes the bare agricultural land. We are equally satisfied that some of the buildings are incidentally used for agricultural purposes, namely the pigsties and chicken sheds. The respondent’s objection to buildings being included seems to have overlooked the fact that it is only the residential buildings which are referred to in the Modification of Tenancy. The Modification of Tenancy is also, to some extent, a misnomer for under that document, as the body of that document declares:- + + “ … the Crown hereby permits the modification of the Crown Lease … “ + + The modification is, of course, subject to the terms therein set out but it is far more than merely a modification of a tenancy. In terms of the document it is a modification by the Crown of the Crown lease. The modification permits the applicant to maintain on the land contained in the lease the private residence, porch and kitchen at present situate on the property. + + From a consideration of the whole of the evidence including the Crown lease and the modification thereof, we are satisfied that the other buildings used for pig and chicken farming are lawfully erected and used for agricultural purposes in terms of the lease. We have not overlooked that, as was typical for leases of this vintage, the permitted use is described as a “padi” lot. We hold that such a use includes not merely the growing of rice but general agricultural purposes. Such buildings must necessarily be included in any valuation. So the subject property clearly includes at least the land and those agricultural buildings. + + We accept that the residential buildings are only permitted under the Modification of Tenancy. However, it is equally clear that those residential buildings are lawfully erected on the land for residential purposes pursuant to the Crown lease as modified by the Crown under the modification document. We recognise that the modi-fication in respect of those residential buildings may be cancelled by the Crown on 1 month’s notice and is not transferable. + + However, we also remind ourselves that the established practice in the New Territories is for residential modifications to enure in favour of the grantee subject to payment of an annual fee. We note that the modification in favour of the applicant has continued on payment of an annual fee since he purchased the property in 1977. We further accept that upon a property, subject to a modification in favour of the vendor, being sold the new owner will normally have no difficulty in obtaining a new Modification of Tenancy, in relation to existing residential buildings included in the purchase. The new modification too, in the normal course, will continue subject to the annual fee being paid. + + For these reasons we are well satisfied that the open market value of the subject property will include an element for the residential buildings. The present residential occupancy is clearly lawful and in the context of Hong Kong’s relatively high residential property values, even in the New Territories, these particular residential buildings must have value. + + In ascertaining the open market value of the subject property we therefore hold in accordance with Ching Chun-kau v. Director of Lands and Survey that no deduction for residential buildings is to be made under Section 10(5). On the basis of the evidence available to us, we now turn to consider the open market value of the subject property. We would con-firm that the subject property includes the bare land, the buildings used for pig farming, the buildings used for chicken farming and the residential buildings referred to in the Modification of Tenancy. + + We would also confirm that under Section 10 the relevant date for assessing the open market value of the subject property is at the date of registration of the order. In this case the order was registered against the subject property in the Tuen Mun District Land Registry on the 30th day of March, 1981 as Memorial No. 202470. + + The applicant did not call a chartered surveyor or other expert to give evidence of value. However, he informed the Tribunal that he purchased the property after negotiations were conducted by a village elder on his behalf on the 16th day of May, 1977. We were informed that the consideration formally expressed in the assignment was $20,000. There were suggestions that the total cost to the applicant may have been in excess of that sum but the evidence was not sufficiently clear for us to make any contrary finding on this issue and we are left with the stated consideration of $20,000. + + The applicant also stated that in 1980 he attempted to sell the property through a village elder for $350,000. He was offered $250,000 which he rejected. No sale was effected. In January 1982, by which time the pro-perty was subject to the statutory electricity easement, he reduced the sale price to $200,000, to take into account the effect of the easement on the property, but was unable to find a purchaser. + + It is trite law that an offer to buy or sell at a certain price is not direct evidence of value. Often it may merely be an estimate by the offeror of the value of the property to him. Depending on the circumstances it may not even be evidence of that fact. For an offer may also reflect the financial position of the offeror and his estimate of his bargaining position against the other party, rather than his estimate of the real value of the property. A variety of other factors, not directly related to value, may also influence the calculation of the offer. Generally little or no weight should be given to evidence of this kind as was emphasised by the High Court of Australia in McDonald v. The Deputy Federal Commissioner of Land Tax for New South Wales (1915) 20 C.L.R. 231, 237, where in a taxation appeal Isaacs J., pointed out:- + +“ … it is plain that the mere fact of a statement by an owner to a stranger that he would be willing to sell at a given figure, and that offer was not accepted, for some reason undisclosed, is not evidence of what the Statute requires, namely the price which a willing buyer would give, supposing the seller announced reasonable conditions. At most, it is evidence of the owner’s bona fide belief at the time as to the value of his land. Nor is the refusal of the person to whom the offer was made to accept it, even if specifically on the ground of excessive amount, any more than an expression of his opinion on the point … When the matter has reached the point of a concluded contract, there has been a definite concrete fact established, which not only evidences value, but to some extent helps to create or modify it. Where an owner has actually parted with his land for a fixed sum and a buyer has parted with his money for the land, a clear event has arisen, which, based on the ordinary instincts and impulses of human nature, indicates a consensus of opinion between two adverse parties in the community respecting the value of similar lands. Some advantage to justice is therefore manifestly possible from considering it, and the law presumes that up to that point the disadvantages of having to undertake the collateral inquiries as to comparison do not outweigh the possible advantages. + +But if the negotiations do not end in a concluded bargain, the field is at once open to a multitude of other considerations before the same point of opinion is reached. Excursions into the realm of collateral circumstances would be endless. ” + + We have been unable in this application to refer, if only for background purposes, to current rateable values. For the subject property is exempt from rates under the Rating Ordinance, Cap. 116. Section 36(1)(a) exempts from assess-ment agricultural land while Section 36(1)(b) exempts any dwelling house in the New Territories (except New Kowloon) which is occupied in connexion with agricul-tural land. The Commissioner of Rating and Valuation has therefore not been obliged to value the property. + + However, we did have the assistance of the evidence of Mr. T. Lo, Chartered Surveyor, who was called by the respondent. Mr. Lo was of the opinion that there had not been any diminution in value attributable to the registration of the order. In coming to that conclusion, he disregarded the existence of the residential buildings treating the property as agricultural land. Turning to possible comparables he stated that there was no record of any comparable transactions for similar properties before and after orders were registered. So there was no direct evidence of any possible diminution in value as reflected in actual sales. As far as sales generally in the immediate locality were concerned, he stated that these suffered from the disadvantage that they were either in or near the Tuen Mun New Town Layout. He was of the opinion that sales in both of these areas reflect a speculative element arising from the Crown’s practice of making generous ex-gratia payments to owners of resumed land. + + We have already considered this issue in Hofei Estates Limited v. Secretary for City and New Territories Administration C.L.R. No. 1/82. We accept that prices paid within layouts tend to exceed the true value of those properties for agricultural use. However, we are not satisfied that principle can properly be extended to properties outside a layout. If there is a pattern of sales of comparable agricultural land outside a layout, those sales should not be rejected solely because of the possibility that they may include a speculative element arising from the hope that, at some indeterminate time in the future, an existing layout maybe extended to include such properties. + + In Appendix XI of his report, Mr. Lo set out details of sales of Properties Nos. 1, 2, 3 and 4 all of which are within the Tuen Mun New Town Layout and quite properly rejected by him as comparables for that reason. He then went on to give details of Properties Nos. 5, 6 and 7 all of which are not only outside the layout but are situated in the same locality as the sub-ject property. However, he also rejected these latter three properties on the ground that, while they were outside the layout, their sale prices were also inflated due to the vicinity of the layout. Yet, in relative terms, they were no closer to the layout than the subject property. To overcome this self-imposed restriction, Mr. Lo went far beyond the locality of the subject property and preferred to rely on much larger agricultural properties in more remote areas. The procedure he followed, he explained, was that he:- + +“ … gathered sales evidence of land lying in the more remote part of the New Territories where there is little or no prospect of resumption or development. ” + +In March 1981, sales of agricultural land in those remote areas ranged from as low as $43 to $80 per square metres for properties ten to twenty times larger than the subject property. The subject property is 202.34 square metres. The area of Mr. Lo’s preferred comparables were 4694.31 square metres, 4532.44 square metres and 2630.43 square metres. On the basis of those very different transactions he adopted a rate of $80 per square metres for the subject pro-perty producing a value of $16,187. Having considered the particulars of those much larger and more remote properties, which are referred to Appendix XII of his Report, we are satisfied that they are not sufficiently comparable to be used as a sound basis for valuing the subject property. Indeed, they would be well below the market value of the subject property as, conversely, agricul-tural land within a layout, would be above the value of the subject property. + + We note in passing, that the Crown’s ex-gratia zonal rate for resump-tion of agricultural land within the Tuen Mun Layout, being 75% of $89 per square foot, is very much higher. Indeed it equals $718.50 per square metre compared to the $80 per square metre used by Mr. Lo for his valuation of the subject property. We understand that the zonal rates are for bare agricultural land without buildings. If the subject property were within the layout, that would produce a figure of $145,000 plus an allowance for buildings. + + Notwithstanding Mr. Lo’s hesitancy, we are satisfied that greater weight should have been given to Properties Nos. 5, 6 and 7 in Appendix XI. Of these Property No. 7 appears most closely to relate to the subject property. Property No. 7 is similar in size comprising 228.17 square metres compared with the subject property’s 202.34 square metres. The property was sold for $98,240 on the 30th day of May 1981 which also is very close to the date at which we have to assess compensation, namely the 30th day of March 1981. This property also appears to be a similar if not even a further distance inland, from Castle Peak Road and to lack vehicular access. It is likewise outside the Tuen Mun Town Layout. Unfortunately, we were not told whether Property No. 7 was bare agricultural land or whether it includes any buildings. + + Nevertheless, even after taking into account Properties Nos. 5, 6 and 7, the evidence remains insufficient for us to make any precise finding as to the actual open market value of the subject property as at the 30th day of March 1981. We are satisfied, however, that it is worth less than the applicant’s suggested valuations which varied from $350,000 to $200,000. Equally it is worth very much more than the respondent’s value of $16,187. Some of our difficulties may not have arisen if the applicant had called a valuer. In the circumstance’s we can only estimate that the open market value of the property as at the 30th day of March 1981, may have been somewhere in the region of $100,000 to $200,000. We would emphasise that we have not arrived at those figures as the open market value of the property but merely record them as parameters within which the actual open market value would probably fall. + + We must now proceed, as best as we are able, subject to all the foregoing qualifications, to ascertain the diminution, if any, in that value of the land “attributable to the registration of the order”. We hold that any such diminution necessarily includes not merely the registration of the Order in terms of the Ordinance but also the construction of the transmission line which includes the pylons and the lines themselves. The normal method of ascertaining any diminution would be to compare the value of properties, as reflected in actual sales, which are subject to such orders with similar pro-perties which are not encumbered by such orders. It was common ground that as this is the first major transmission line affecting privately owned pro-perties there simply is, as yet, no record of any such sales. + + However, we have had the advantage of inspecting the property. No pylons are constructed on the property but the transmission lines pass over the property. This particular transmission line appears physically to be of a much larger kind than is commonly seen elsewhere in Hong Kong. The pylons are major steel structures carrying 6 transmission lines at a height of about 100 feet above the residential buildings of the subject property. The subject property itself is largely covered by the buildings we have already described. The buildings take up 65% of the total area. The balance of 35% comprises paths and a small garden. So this is not an example of the more common case of electrical transmission lines covering large areas of remote bare agricultural land. + + Before proceeding to consider the effect of the order on the subject property it may be helpful, particularly as this is the first application under our new Ordinance, to consider the position in countries overseas where for much longer, statutory provision has been made for the erection of electrical trans-mission lines over private property. In England the empowering legislation is the Electricity (Supply) Act 1919 and the Electricity Acts 1947-1958. Where “way-leaves” are acquired a right of compensation arises. Compensation is determined under the Land Compensation Act 1961 so the general principles relating to the compulsory acquisition of land by the Crown are applicable. A “way-leave” is defined in Volume XII Oxford English Dictionary 211 as:- + +”way-leave: permission to make and use a way for conveying coal from the pithead across a person’s land; the rent or royalty for such permission; the way or road constructed for the purpose. Also, permission to carry telephone wires over or along buildings, or to lay waterpipes or drains across private land, and the charge or rent payable therefor.” + + The first cited use of “way-leave” goes back to 1427. With the development of electricity and the necessity to reticulate it over long distances “way-leave” has also been used, to mean the right to carry electri-cal transmission lines over or under land. In ’Modern Methods of Valuation of Land, Houses and Buildings’ (6th Edn.) 413 it is stated that in England:- + + ’The acquisition of “way-leaves” ... may include the following: + + (a) The carrying of overhead conductors across land by means of supports erected on the land; + + (b) the carrying of overhead conductors across land without any supports being erected on the land itself - sometimes referred to as “oversails”; + + (c) the carrying of conductors underground. + + The extent of the injury suffered by owners and occupiers will obviously differ according to the nature of the wayleave.’ + + In this particular case the species of wayleave affecting this pro-perty is that categorised in paragraph (b) as “oversails”. As to the diminution in value caused by oversails the authors go on to state: + +”In (b) there is no actual occupation of the land itself, and in the case of purely agricultural land the presence of the oversail may have little, if any, effect on value, although the minimum height at which the conductor crosses the land is always a matter for consideration.” + + In England compensation is paid either by way of annual rent or by way of lump sum payment. Under Section 10 the power to award compensation seems to be wide enough to cover both alternatives. In this claim, the applicant sought a lump sum payment. “Modern Methods of Valuation”, after referring to actual loss suffered to owners by damage to crops and the like, observes that normally electricity conductors cross open country and that if it were proposed to carry a line over ripe building land the better course for an owner would be to make representations for an alternative route. This implicity recognises that a loss may be suffered by the mere presence of an oversail, even though there is no physical damage to crops or other property. Express reference to the affect of oversails on bare land with development potential is made at page 415: + +”If the original proposal were persisted in, then the effect on the value of the state of the erection of pylons on certain plots and the presence of high-voltage cables over other plots would have to be considered. In such a case a claim for depreciation in the value of the land affected could be made.” + + Reference is also made to the decision of the English Lands Tribunal in Radnor Trust Ltd. v. Central Electricity Generating Board (1960) 12 P. & C.R. 111 which was a claim for compensation due to the erection of pylons and oversails. £220 was awarded for the value of the land taken for the pylons and £750 for depreciation in the value of the house. However, the depreciation appears to have been allowed because of the pylons and no separate provision was made for the oversails. The Tribunal was satisfied that the pylons and the wires depreciated the property’s value stating at page 114: + +”I have viewed the property and in the light of that view I am satisfied that the existence of the pylons and wires does not materially detract from the enjoyment of the very attractive property. At the same time I am satisfied by the evidence that it would prove a deterrent to some, and form a strong bargaining point in the case of all prospective purchasers.” + + So the Tribunal found that the pylons, together with the transmission wires, would affect the bargaining position of all prospective purchasers. A less generous view seems to have been taken by a differently constituted Lands Tribunal in Pryor v. Central Electricity Generating Board (1968) 206 E.G. 1143. In that case compensation was allowed for the potential interference with aerial cultivation, annual cleaning, converging of double lines and injurious affection to the farmhouse. But on the facts of that particular case a claim that future sales would be impaired was rejected. + + The present applicant places the affect of the transmission lines on a future sale in the forefront of his claim for $200,000. He submitted that the erection of the transmission lines had affected his enjoyment of the pro-perty by their physical presence above the property; their affect on fung shui; their danger to human and animal health; and their affect on television reception. All these factors, it was submitted, would result in a lower resale value of the property. + + As to loss of resale value, the applicant cited his first offer to sell the property before the transmission lines were erected for $350,000 com-pared with his reduced subsequent offer of $200,000. Now he expected to be able to sell the property at about $150,000. He therefore assessed his loss of value on resale at $200,000 being the difference between the earlier $350,000 and the present $150,000. In the New Territories he stated that fung shui is a dominant factor in ascertaining land values. The installation of the transmission lines, in his opinion, had reduced the fung shui value. + + The applicant produced a newspaper article in the ’Oriental Daily News’ of 3rd September, 1981 apparently prompted by the construction of these trans-mission lines, raising fears of the danger to human life. On whether high voltage lines cause danger to human and animal life the respondent called its Environmental Protection Officer Dr.C.J. Muskett. Dr Muskett holds the degrees of Bachelor of Science (Honours) and Doctor of Philosophy in Applied Biology from the University of London and is a Member of the Institute of Biology. For 8 years he has been employed as a professional environmental scientist. We accept he is an expert in these fields. He produced reports on the effects of high voltage transmission systems on animals and humans, supporting his opinion by reference to 27 authorities. Dr. Muskett’s evidence was most interesting and revealed that for some years research studies have been carried out to investigate the effect of high voltage transmissions on animals and humans. His evidence included the following observations: + +”Overhead transmission lines affect the surrounding environment in a number of ways. In addition to the electric and magnetic fields generated; small arc discharges, air ions, low frequency noise, ozone nitrous exide and radio interference are also characteristically produced. Hence the environment in the vicinity of transmission lines can be in chemical and physical terms, extremely complex ... research studies carried out in America and Western Europe into the possible effects of transmission lines on human health ... none of these studies was able to indicate a significant effect of electric fields on humans number of Soviet studies and more recently Spanish studies have been carried out on persons occupationally exposed to high voltage electric fields in switchyard environments. Before proceeding with a review of the research results from these studies, it is important to consider the differences in environmental conditions prevalent in switchyards as opposed to those in the vicinity of transmission lines. In contrast to the studies conducted in America and Western Europe, Soviet studies have indicated adverse effects of high voltage transmission. In a report by Krivova for example, in which 319 men aged up to fifty years exposed to switchyard environments rated at 220,330 and 500 kV were tested, it was concluded that the electric field caused a nonspecific disturbance to the central nervous system. Another Soviet study, by Asanova and Rakov carried out on workers employed on 400 and 500 kV installions found multiple functional disorders of the neurological, cardiovascular and digestive systems. Sazonova followed up these disorders and found comparable results in further studies ... Much criticism has been levelled at the Russian studies, principally with regard to methodology ... However, as a result of the Russian work, exposure standards have been set for occupationally exposed persons in the USSR ... Based on this review of available data, it appears that there is no conclusive evidence to support the hypothesis that there may be significant biological effects from exposure of the public to EHV transmission systems. The effects that have so far been reported are confined to occupational exposure situations (switchyards) and are non-specific. Persons working in switchyards would be expected to be exposed to greater electric field intensities than would be the case for members of the public in the vicinity of transmission lines. In addition occupationally exposed workers would be subject to additional environmental influences such as low frequency noise, small arc discharges, vapours from transformer oils and oxidants (ozone). These additional factors are unlikely to be significant to members of the public. The overall conclusion resulting from a review of the relevant literature is that 400 kV transmission systems have not been shown to be in any way hazardous to the general public.” + + Dr. Muskett was of the opinion that the high voltage electricity transmitted in the wires would not affect the health of either the persons living at the property or the pigs and chickens reared for sale. He therefore equated their position with that of the general public. + + The complaint in respect of television reception seemed credible. It was consistent with Dr. Muskett’s concession that the transmission lines could cause radio interference. Yet when we visited the property and the television was put on, for demonstration purposes, it did not appear to be affected by the high voltage transmission lines. + + We were informed by the respondent that if one of the wires should break and fall to the ground it would be automatically neutralised posing no danger. The pylons and the wires had been designed to withstand a wind force several tines greater than the maximum recorded winds in this area during the past 50 years. Many of the applicants’ fears were either ungrounded or speculative. + + At the same time we sympathise with his obvious concern. A layman’s fears caused by these transmission lines is certainly understandable. As to the speculative nature of some of these fears, a similar issue arose in Wood & Anor v. Taranaki Electric-Power Board (1927) N.Z.L.R. 392. The Board had erected a transmission line along the common boundary of the claimants farm and an adjoining major drain. The claimants claimed compensation for diminu-tion in the value of their land caused by the proximity of the lines which rendered more costly the regular cleaning of the drain. The Court of Appeal held that the Board was by statute responsible to clean the drain and no duty devolved on the claimants. However, as to the possible damage to land or animals from falling wires, the Chief Justice observed: + +“On the argument before us counsel for the claimants admitted that the claimants could only recover compensation in respect of losses sustained in consequence of what the respondent Board has lawfully done or might lawfully do under its statutory powers. If it exceeds those powers, either by committing an act not authorized or by doing an authorized act in a negligent manner, the person injured would have a remedy by action and would not be entitled to compensation. The respondent Board contended that no injuries of any kind mentioned were proved to be necessarily incidental to the proper use of such transmission-line, or to its use without negligence; and that if any injury can be suggested to be necessarily incidental to the proper use of the transmission-line the happening of the same is too uncertain and speculative to be the subject of compensation. The claim therefore is based entirely upon an anticipated injury to the land of the claimants not due to negligence on the part of the respondent Board. The risk, it is suggested, may arise from the breaking of one or more of the transmission-wires by tempest, accident, or some unforeseen cause bringing the wires into contact with the lands through which they run, and so causing fires on the lands and to the fences and injury to the live-stock. It was shown however, by the evidence that the transmission-lines of the respondent Board are supplied with what is ordinarily known as an overloading device, and in addition with a leakage relay device. The effect of these safety devices, according to the evidence, is that directly a transmission-line comes off the insulator or makes contact with the earth the line is deadened automatically ... After considering the evidence we hold as a fact that there is no reasonable probability of injury to the land or the live-stock of the claimants by reason of the accidental fall to earth of the transmission-wires. The possibility of such a fall of wires is wholly uncertain and quite incapable of estimation. It may never happen. If it should happen it appears clear from the evidence that there is no reasonable probability of injury to the land ... It is impossible to hazard or guess whether some such accident would ever happen, or whether, if it should happen, what injury would be sustained by the workmen. The whole matter is in the region of mere speculation. For these reasons we determine that the claimants are not entitled to compensation in respect of the injurious affection claimed for risk of damage to their lands by fire and injury to workmen and stock, and generally to the lands, through the escape of electrical energy from the said works.” + + We have also considered the English Court Appeal decision in West Midlands Joint Electricity Authority v. Pitt & Ors. (1931) 2 K.B. 2 which considered wayleaves; the power to place electric lines across land; land-owners right to compensation; and the procedure by which it was determined. The power to place transmission lines over private land in England was introduced in 1919 by the Electricity (Supply) Act. Among several issues resolved by the Court of Appeal which are of interest in the present claim, is that it was undisputed that the wayleave was “land” within the meaning of the English Acquisition of Land (Assessment of Compensation) Act 1919. The easement constituted an interest in land and was therefore “land” for compensation purposes. The narrow question was whether compensation was to be determined judicially or decided administratively by the Minister of Transport. + + The rental offered for the wayleave was calculated on the basis of the number of towers with different rates depending whether they were erected on arable, grass or other land together with a different rate for underground cables. The length of oversails was not an element expressly taken into account. However, the judgments of the Court of Appeal were emphatic that, apart from statutory rights under the Electricity Acts, the Crown had no right to enter upon private land to erect pylons or carry electric lines across such land. Romer L.J. at page 54, referring to the effect of a wayleave over private property, observed:- + +“But an electric line cannot be so placed without taking away some of the rights of property of the owner or occupier of the land … But he does obtain a legal right to compensation as I understand those words. The compensation to which the statement of Lord Atkinson refers is surely compensation commensurate with the invasion of his property that the land owner has incurred, and not a compensation commensurate with the sense of justice possessed by the Minister of Transport for the time being.” + + In Hong Kong a right to compensation arises pursuant to Section 10 in favour of a claimant, upon the registration of an order under the Electricity Networks (Statutory) Easements Ordinance against his property. In the event of a dispute it is to be determined judicially by this Tribunal. Section 10 further provides that the measure of compensation is the diminution in the open market value of the property attributable to the registration of the order. + + Before proceeding to determine if there has been any diminution in value, there is one other matter which arose in evidence which we should refer to at this stage. We were informed that the route of the wayleave affecting many properties was determined after consultations with at least some of the parties affected. An arrangement was also made between the Government and the respondent whereby the Government, as agent for the respondent, would make ex-gratia offers to the various owners whose properties were affected by the wayleave. The offers were conditional upon the owners waiving and surrendering all their rights against the respondent. A letter from Government to the applicant dated the 4th day of August, 1981 included this provision: + + “4 However, Government on behalf of China Light and Power Company Limited is prepared to offer you for the land affected an ex-gratia cash allowance of $10,346. This offer is subject to the following conditions: + + (a) that you waive and surrender to China Light and Power Company Limited all your rights to and interest in the compensation payable to you in respect of the said lot(s) under Section 10 of the Ordinance; and + +(b) that you accept this offer in writing by signing the acceptance part of this letter and returning it to me before 3rd August 1982.” + + The Government is not a party to these proceedings for under the Ordinance the parties are the owner of the property as applicant and the China Light and Power Company Limited as respondent. In Hong Kong the production and sale of electricity is not a Government function but is the business of public limited liability companies. The Government may have considered that it was in the public interest for the technicalities in relation to the way-leave to be resolved expeditiously and offered assistance. In any event it undertook the task of negotiating with the owners on behalf of China Light and Power Company Limited. We are not concerned with that decision. What does concern us in this claim, however, is the preceding paragraph of that letter which concluded: + +“The Tribunal must, under Section 10 of the said Ordinance, determine the compensation for your estate or interest strictly in accordance with the lease conditions and is precluded from awarding any compensation in respect of any expectancy or possibility of a grant of land exchange or licence and must discount any evidence which shows that the land values have been enhanced by expectation of development or of a modification of lease conditions. If you are not sure of your rights you should enquire from the District Office, Tuen Mun or seek independent professional advice.” + + No doubt that paragraph was written in the utmost good faith. It includes a statement of what the Tribunal “must” do in determining compensation which might be thought to be an unhappy choice of words. What is more important is the reference to the Tribunal having to discount the expectancy or possibility of a grant of land exchange or licence or any enhancement by expectation of development or of a modification of lease conditions, which enters a difficult area of law. In certain circumstances that statement of law in the letter apparently limiting a claim for compensation is wrong. A similar statement was included in a subsequent letter from the respondent to the applicant dated 14th April 1982. An example of where such an expectancy or possibility, to the contrary, is not to be discounted has already been referred to in Ching Chun-kai v. Director of Lands and Survey (supra). + +The very same issue arose in this application when we came to consider the Modification of Tenancy. We have held the mere expectancy of the annual renewal of the modification of tenancy is not to be a discounting factor. In many compensation claims a variety of delicate questions may arise. If the Government ventures to inform the parties with whom it is negotiating of the legal limit of their right to compensation, care should be taken to ensure that such information is accurate. Here the Government informed this applicant that, as a matter of law, his right to compensation was in one particular limited, when in fact it appears to be not so limited. + + We now return to the question whether there was any diminution of value. We have already seen that due to the fact that the wayleave had just been completed and is the first of its kind to be built in Hong Kong affect-ing private land, that there simply are no comparables of affected and unaffected similar properties from which we could arrive at a figure by that method. + + In those circumstances Mr. Lo adopted what he described as a notional method of valuation. He discounted the possibility of the annual renewal of the modification of tenancy. He accepted that the lines are inherently safe and that there was no substantiated health hazard to humans or to livestock. On that basis he concluded that the registration of the Order would not diminish the agricultural value of the land. + + We have already held that in assessing the value of the property the existing permitted residential use is to be taken into account, as well as the agricultural user. We accept, however, that the oversails are inherently safe and following Wood & Anor v. Taranaki Electric Power Board no compensa-tion is presently payable for the possibility that they may become unsafe or cause damage in the future. This finding in no way prejudices the applicant. For if in the future the lines became unsafe and the applicant were to suffer damage he would then, depending on the circumstances, have a claim not for compensation but an action for damages. In particular we would point out that Section 11 not only preserves a party’s common law rights but, in addition, creates a separate statutory cause of action in favour of persons suffering loss or damage. + + From our view of the property we are satisfied that the oversails do not affect television reception. Nor on the evidence has it been established that there is any health hazard caused by their presence. If any of these factors were established then, while they are not separate statutory heads of compensation, it would be open to us to infer that their presence would diminish the open market value of the property. + + Similarly, if the adverse fung shui effect of the transmission lines was reflected in a reduced open market value, weight would also have to be given to that factor. It matters not whether fung shui is a separate head of compensation or recognised by the statutory or common law, if in fact it affects the open market value. The position might well be the same even if the open market value was not the test and we had to consider loss or damage generally. For Section 3 of the Application of English Law Ordinance, Cap. 88 provides that the common law shall be in force in Hong Kong so far as it is applicable to the circumstances of Hong Kong and its inhabitants and “subject to such modifications as such circumstances may require.” Under that provision Hong Kong Courts have, for example, long recognised as separate common law heads for damages in personal injuries actions, claims for extra nourishment and bonesetters fees, which would not be allowed in England. + + If the need arose there is no reason why the courts in Hong Kong, in appropriate compensation cases, might not recognise fung shui. However, in this case we do not need to consider fung shui as a separate head of com-pensation for if it is, as alleged, a factor in the price of land in the New Territories, it would be reflected in the open market value. The only evidence on fung shui was from the applicant himself. He was a relatively young man, who did not claim any expertise in fung shui, but merely made the general assertion that fung shui is a dominant factor in land transactions among villagers in the New Territories and that the fung shui of his property had been adversely affected. On that evidence, alone, if it were necessary we would be unable to find that the order has diminished the value of the pro-perty because of the alleged detrimental fung shui effect. + + The ownership of property at common law includes, of course, not only the surface of the earth, but as stated by Pollock C.B. in Electric Telegraph Co. v. Salford Overseers (1855) 11 Ex. 181 everything under and over the surface of the land. However, those rights are only to everything immediately above and immediately below the surface. On the other hand we accept the respondent’s submission, citing William Aldred’s Case 9 Co. Rep. 57b, that an owner of land enjoys no right of prospect. As Wray C.J. declared at page 58b: + + “ … the law does not give an action for such things of delight. ” + +On this point we were also referred to Megarry & Wade “Law of Real Property” (3rd Edn.) 812. We therefore ignore the fact that the pylons and transmission lines on at least one adjoining property may have effected the applicant’s view. For loss of view beyond his property he is not entitled to any compensation. + + As to the right of ownership of everything above and below the surface the only restriction on that common law right is where legislation has intervened to impose modifications or restrictions. The enactment of the Electricity Networks (Statutory Easements) Ordinance as recently as 1980 is an implied recognition of that common law right in Hong Kong. For the respondent had to obtain the statutory power, not merely to construct pylons on private land, but also to carry electric lines across private property. The exercise of that power, whether described in the terms of Romer L.J. in West Midlands Joint Electricity Authority v. Pitt & Ors. (supra) 54, as an “invasion” of the applicant’s property rights, is certainly an interference with the applicant’s estate or interest in the property which, but for that exercise, would not have occurred. + + On the basis of the evidence and our inspection, we are satisfied that in applications under the Electricity Networks (Statutory Easements) Ordinance, it will be important for each affected property to be considered on its own particular facts. Properties necessarily vary one from another. In some cases an affected property may be bare agricultural land; others may include residential buildings; still others may consist solely of residential buildings. In large properties the effect of a wayleave may be less than in the case of smaller properties. These and other differences will be among the factors which will inevitably result in different amounts of compensation being awarded Certainly these differences make it impossible to evolve a simple formula, statistical, by way of percentage or otherwise, which could directly be applied to all affected properties. In this particular case, we considered it necessary to view the property. We found our inspection invaluable. In the light of the differences we have adverted to, it would seem to be necessary and certainly desirable, for the Tribunal to view each property involved in similar applications under the Ordinance before compensation is determined. + + The easement registered against the subject property is in relation to 144 square metres or approximately two-thirds of the total area of the pro-perty. The respondent contended that as only two-thirds of the property was immediately under the 6 transmission lines compensation was payable for a maximum sum equal to the diminution of two-thirds only, of the total area of the subject property. We reject that contention. Where an affected property is relatively small, if it is crossed by transmission lines of this size, then probably the whole of the property will be detrimentally affected. In this particular case we are satisfied that while the transmission lines are immediately over only two-thirds of the property, their presence affects the whole of the property. It would be artificial and misleading to attempt to limit their affect by partition, severance or other means. We are well satisfied that while the transmission lines cross directly over two-thirds of the property, the whole property is affected. + + What we also find from our view of the property is that the sheer size of the lines together with manner in which they are strung, materially detracts from the visible appearance and enjoyment of the property. We are satisfied that if there were an otherwise identical property in this area, not subject to the wayleave, then it would be preferred by a willing buyer to the applicant’s property subject to the wayleave. The presence of the wayleave to the detriment of the owner would certainly, to apply the words used in Radnor Trust Ltd. v. Central Electricity Generating Board, page 114, “form a strong bargaining point in the case of all prospective purchasers”. + + Against this background we hold that the value of the applicant’s property has diminished but the real difficulty is to quantify the amount of the diminution. We have already observed that this is not a case where com-parables indicating diminution in value are available or where unit rates or before and after methods of valuation, are appropriate. We share the view expressed in ’Modern Methods of Valuation’ at page 413, that generally over-sails will have little effect or no effect on value. In this particular case we are not concerned with a major diminution of value but we are satisfied there has been some diminution. + + We have already dwelt on the fact that in some areas we have, to some extent, been inhibited by a lack of detailed evidence. However, on the basis of the evidence that has been adduced and in accordance with the principles we have mentioned, we determine the compensation payable to the applicant under Section 10, by way of lump sum, at $20,000. The applicant is also entitled to interest since the 30th day of March 1981. Leave to apply is reserved in respect of interest, costs and any other incidental matters. + + DATED this 11th day of March, 1983. + + + + + (Judge G.N. Cruden) M.W. Phillips + Presiding Officer Member + + +Representation: +The applicant in person. +Mr. C.N. Ingham, by leave, for the respondent. \ No newline at end of file diff --git a/en_cases_hkldt/1983_HKLDT_145/case.json b/en_cases_hkldt/1983_HKLDT_145/case.json new file mode 100644 index 0000000..e566b6a --- /dev/null +++ b/en_cases_hkldt/1983_HKLDT_145/case.json @@ -0,0 +1,26 @@ +{ + "Date": "11 Mar, 1983", + "Action No.": "LDMR1/1982", + "Neutral Cit.": "[1983] HKLDT 145", + "case_title": "CHOW CHI KEUNG V. CHINA LIGHT AND POWER CO LTD", + "page_title": "CHOW CHI KEUNG V. CHINA LIGHT AND POWER CO LTD | [1983] HKLDT 145 | HKLII", + "case_history": [ + { + "name": "LDMR1/1982", + "link": "https://www.hklii.hk/en/appealhistory/LDMR/1982/1" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkldt/1983/145", + "neutral_cit": "[1983] HKLDT 145", + "court_code": "HKLDT", + "content": "LDMR000001/1982 CHOW CHI KEUNG v. CHINA LIGHT AND POWER CO LTD\nLDMR000001/1982\nStatutory Electricity Easements - compensation for diminution in value of property- revocable modification of agricultural lease permitting residential use - whether residential user to be taken into account in assessing open market value of land - evidential value of owner's asking sale price for property - affect on comparables of New Town layout - whether oversails affect value - whether danger to human and animal health - risk of future loss or damage - Held: 1. registration of easement and existence of oversails diminished open market value of property entitling owner to compensation; 2. no compensation payable for risk of future loss or damage but remedies for persons suffering actual loss available at common law and under statutory cause of action by way of damages and not by way of compensation - Sections 10, 11 Electricity Networks (Statutory Easements)\nCap. 357\n,\nSection 12\n(c)\nCrown Lands Resumption Ordinance\n,\nCap. 124\n.\nIN THE LANDS TRIBUNAL OF HONG KONG\nMiscellaneous Reference No.1 of 1982\nIN THE MATTER\nof the Electricity\nNetworks(Statutory Easements)Ordinance,\nCap.357\nBETWEEN\nCHOW CHI KEUNG\nApplicant\nAND\nCHINA LIGHT & POWER COMPANY LIMITED\nRespondent\nCoram:\nTRIBUNAL\n: His Honour Judge Cruden, Presiding Officer and M.W. Phillips, Esq., Member.\nDate: 11th day of March, 1983.\n--------------------\nJUDGMENT\n--------------------\n1.\nThis is the first application for compensation under the\nElectricity Networks (Statutory Easements) Ordinance\nCap. 357\nwhich was enacted on the 11th day of July, 1980.The applicant is the registered Crown lessee of all that parcel of land containing 2178 square feet (202.34 square metres) being Lot 998 in Demarcation District 130, New Territories, Hong Kong. The lease was for a term, including renewals, of 99 years from the 1st day of July 1898 less the last 3 days thereof.\n2.\nIn 1981 the respondent commenced to construct a 400 KV transmission network in the New Territories. One of the reasons for the enactment of this new Ordinance was to facilitate the construction of the transmission line and to enable owners of land which suffers a diminution in value as a consequence of the construction of the network, to apply to the Tribunal for Compensation.\n3.\nUnder the Ordinance statutory easements may be created in favour of a power company, in the terms of a scheme approved by the Secretary of Lands and Works, to enable the power company to carry out works in accordance with the approved scheme. The respondent is a \"power company\" as defined in Section 2.\n4.\nThe respondent's scheme to construct a 400 KV network was approved by the Secretary, under his earlier designation as Secretary of the Environment, and deposited in the Land Office on the 5th day of March 1981. Subsequently on the 25th day of March 1981 the Governor in Council ordered, pursuant to Section 3, that the provision's of the Ordinance should apply to the approved scheme. Notice of the Order was published on the 27th day of March 1981 in No. 13 Volume CXXIII\nHong Kong Government Gazette\nunder L.N. 80 of 1981.\n5.\nThe applicant's property is situated near Lo Fu Hang Village which is south-east of To Yuen Wai, To Yuen Wai is on the main road between Tuen Mun and Yuen Long. There is no vehicular access to the appellant's property which is about 30 minutes walking distance from To Yuen Wai along partly paved footpaths.\n6.\nThe Crown lease describes the property as a \"padi lot\" and we find that it is at present lawfully used for residential and agricultural purposes. The property is beyond the Tuen Mun New Town Layout Plan. We were informed that the property falls within an area zoned Lowland Rural Area on the Government's internal department plans. At present pigs and chickens are reared and some vegetables are grown on the property. A house of two stories and an adjoining kitchen, used for residential purposes, are occupied by the applicant's parents. There are also two pigsties with a total area of 51.68 square metres and chicken sheds of a total area of 38.99 square metres.\n7.\nThe right to compensation is contained in Section 10 which provides :-\n\"10.(1)\nWhere an order made under this Ordinance affecting any land is registered by a power compensation under the\nLand Registration Ordinance\n, the company shall be liable to pay compensation to the person who, at the date of registration of the order is the owner of the land in respect of any diminution of the value of his estate or interest therein attributable to the registration of the order.\"\n8.\nWe are satisfied that the Order has been duly registered and that the applicant was at the date of registration the Crown lessee of the land. Section 10 goes on to give the Lands Tribunal jurisdiction to determine the amount of compensation, if any, payable in the case of a claim and Sub-section 6 provides that:\n\"(6)\nFor the purposes of this section \"value\", in relation to any land affected by an order made under this Ordinance, means the open market value of the land assessed as at the date of registration of the order.\"\nHowever, the Section also provides that in determining the compensation payable thereunder, no compensation shall be paid for:\n\"(a)\nany expectancy or probability of the grant or renewal or continuance by the Crown or any person of any licence, permission, lease or permit whatsoever;\n(b)\nany use of the land which is not in accordance with the terms of the Crown lease under which the land is held.\"\n9.\nAt the hearing evidence was given as to the status of the house and related buildings used for domestic premises. In accordance with New Territories agricultural land practice the applicant is the holder of a Modification of Tenancy permitting him to maintain the residential buildings we have referred to on this agricultural land subject to the conditions appearing on the modification document. These conditions include:\n1.\nThe permission may be cancelled on 1 month's notice or where there a breach of the conditions forthwith.\n2.\nThe permission is not transferable.\n3.\nThe annual permit fee is $12.\n10.\nIn practice a purchaser of the property may, upon the existing Modification of Tenancy in favour of the vendor being cancelled, apply for a new Modification of Tenancy in his name. In a letter from the Principal Government Land Agent/Acquisition of the Lands Department dated the 30th day of July 1982 to the respondent, that officer confidently asserts that as the permit is of a temporary nature and is subject to cancellation in the case of breach of conditions:\n\" ... no compensation shall be given under Section 10 of the Electrcity Networks (Statutory Easements) Ordinance 1980,\"\n11.\nThe respondent adopted that view in its submissions and contended that any valuation of the property must be on the basis that it is bare agricultural land without any buildings erected thereon. The respondent pointed out that Section 10(5) provides:\n\"10. (5)\nIn the determination of the amount of compensation, if any, payable under this section, no compensation shall be given in respect of -\n(a)\nany expectancy or probability of the grant or renewal or continuance by the Crown or any person of any licence, permission, lease or permit whatsoever;\"\n12.\nOur attention was drawn to the fact that\nSection 10\n(5) appears to have been modelled on Section 12(c) of the\nCrown Lands Resumption Ordinance\n,\nCap. 124\nwhich provides:\n\"12. In the determination of the compensation to be paid under this Ordinane -\n(c)\nno compensation shall be given in respect of any expectancy.or probability of the grant or renewal or continuance by the Crown or any person of any licence, permission, lease or permit whatsoever;\nProvided that this paragraph shall not apply to any case in which the grant or renewal or continuance of any licence, permission, lease or permit could have been enforced as of right if the land in question had not been resumed; and \"\n13.\nWe are satisfied that the applicant could not have enforced any right to have the Modification of Tenancy renewed or continued.So had this been a resumption under the\nCrown Lands Resumption Ordinance\n, his position would not have been protected by the proviso to Section 12(c). We are further satisfied that the provisions of Section 10(5) and Section 12(c), are, for practical purposes, identical.\n14.\nThe affect of Section 12(c) when land is resumed under the Crown Lands Ordinance was considered by the Court of Appeal in\nChing Chun-Kau\nv.\nDirector of Lands and Survey\n(1978) H.K.L.R. 320\n. In that case the land resumed was held under a Crown lease which at the date of resumption had an unexpired term of 22 years. However, the sole permitted use under the lease was for the purposes of a dairy. A dairy required an annual licence from the Director of Agriculture and Fisheries. The annual licence in that case had 6 months to run at the date of resumption and the grant of a new annual licence was within the discretion of the Director of Agriculture and Fisheries. The Lands Tribunal, relying on Section 12(c), held that the value of the unexpired term of the lease was not to be calculated on the basis of 22 years but merely on the 6 months remaining under the annual licence.\n15.\nThe Court of Appeal had little difficulty in rejecting that approach and held that the land should be valued on the whole of the unexpired term of the lease of 22 years. On appeal Huggins J.A., thought Section 12(c) was irrelevant and would have been prepared to dispose of the appeal on that basis:\n\"The short answer appears to me to be that the Claimant is not seeking compensation in respect of any expectancy or probability of the grant of a licence but in respect of the unexpired term of the Crown lease. ...\nThe Tribunal felt constrained to limit the compensation to the period of six months, a period entirely unconnected with the unexpired term in respect of which the claim was made and dependant solely upon the relationship between the date of resumption and the date of expiry of the current dairy licence. It was, no doubt, a pure matter of chance that the resumption order was not made either on.the day on which that licence was granted or on the day on which it expired. Had it been the latter day the Tribunal would presumably have awarded no compensation at all. Such an extraordinary result is not one which I could endorse unless driven by the clearest possible language. It was the force of the words of s. 12(c) which so impressed the Tribunal that they thought they were driven to that result. As I have said, I think that paragraph has no relevance to the case before us.\"\n16.\nThe Court of Appeal emphasised that the application for compensa-tion was for the unexpired 22 years of the Crown lease. The application was not for compensation for the expectancy of the renewal or continuance of the dairy licence. If the dairy licence were not renewed Huggins J.A. went on to point out that certain action could in any event have been taken against the Director of Agriculture and Fisheries or alternatively there were other remedies under the Crown lease.\n17.\nThere are, of course, important differences between the instant facts and those in\nChing Chun-kau v. Director of Lauds and Survey\n. In the latter case the claim was for compensation upon a resumption, while here we are concerned with compensation for diminution of value of land. The Lands Tribunal appealed from, attempted to limit the assessment of compensation to the 6 months remaining under the annual licence when the interest being resumed was the much longer term under the lease.\n18.\nThe respondent here makes a far less ambitious submission. For it recognises that any valuation is to be based on the whole unexpired term of the Crown lease. It simply submits that in that valuation the buildings not authorised under the lease, but permitted by the Modification of Tenancy, should not be included. We recognise that Ching Chun-kau's position against the Crown as lessor, was very different and more power-ful than the present applicant's position as grantee under the Modification of Tenancy and as Crown lessee.\n19.\nHowever, the Court of Appeal's judgment in\nChing Chun-kau V. Director of Lands and Survey\nremains most helpful in indicating the limited extent of the perhaps otherwise apparently wide provisions of Section 12(c) and by analogy in this particular case Section 10(5). In view of the several factual differences it may be helpful if we return to the relevant provision of the Electricity Networks (Statutory) Easements Ordinance relating to compensation, namely Section 10. Under Section 10, as we have seen, the applicant is entitled to compensation for \"any diminution of the value\" of his land. Further the value of his land is the \"open market Value of the land\" as at the date of registration of the order.\n20.\nAny accurate assessment of any diminution of value will usually include an assessment of the value of that land to provide a base. If there has been any diminution we must then quantify that diminution. The first task would require the open market value of the subject property to be determined.\n21.\nWhat then comprises the subject property for the purposes of this valuation? It is undisputed that it at least includes the bare agricultural land. We are equally satisfied that some of the buildings are incidentally used for agricultural purposes, namely the pigsties and chicken sheds. The respondent's objection to buildings being included seems to have overlooked the fact that it is only the residential buildings which are referred to in the Modification of Tenancy. The Modification of Tenancy is also, to some extent, a misnomer for under that document, as the body of that document declares:-\n\" ... the Crown hereby permits the modification of the Crown Lease ... \"\n22.\nFrom a consideration of the whole of the evidence including the Crown lease and the modification thereof, we are satisfied that the other buildings used for pig and chicken farming are lawfully erected and used for agricultural purposes in terms of the lease. We have not overlooked that, as was typical for leases of this vintage, the permltted use is described as a \"padi\" lot. We hold that such a use includes not merely the growing of rice but.general agricultural purposes. Such buildings must necessarily be included in any valuation.So the subject property clearly includes at least the land and those agricultural buildings.\n23.\nWe accept that the residential buildings are only permitted under the Modification of Tenancy. However, it is equally clear that those residential buildings are lawfully erected on the land for residential purposes pursuant to the Crown lease as modified by the Crown under the modification document. We recognise that the modi-fication in respect of those residential buildings may be cancelled by the Crown on 1 month's notice and is not transferable.\n24.\nHowever, we also remind ourselves that the established practice in the New Territories is for residential modifications to enure in favour of the grantee subject to payment of an annual fee. We note that the modification in favour of the applicant has continued on payment of an annual fee since he purchased the property in 1977.We further accept that upon a property, subject to a modification in favour of the vendor, being sold the new owner will normally have no difficulty in obtaining a new Modification of Tenancy, in relation to existing residential buildings included in the purchase. The new modification too, in the normal course, will continue subject to the annual fee being paid.\n25.\nFor these reasons we are well satisfied that the open market value of the subject property will include an element for the residential buildings. The present residential occupancy is clearly lawful and in the context of Hong Kong's relatively high residential property values, even in the New Territories, these particular residential buildings must have value.\n26.\nIn ascertaining the open market value of the subject property we therefore hold in accordance with\nChing Chun-kau v. Director of Lands and Survey\nthat no deduction for residential buildings is to be made under Section 10(5). On the basis of the evidence available to us, we now turn to consider the open market value of the subject property. We would con-firm that the subject property includes the bare land, the buildings used for pig farming, the buildings used for chicken farming and the residential buildings referred to in the Modification of Tenancy.\n27.\nWe would also confirm that under Section 10 the relevant date for assessing the open market value of the subject property is at the date of registration of the order. In this case the order was registered against the subject property in the Tuen Mun District Land Registry on the 30th day of March, 1981 as Memorial No. 202470.\n28.\nThe applicant did not call a chartered surveyor or other expert to give evidence of value. However, he informed the Tribunal that he purchased the property after negotiations were conducted by a village elder on his behalf on the 16th day of May,1977. We were informed that the consideration formally expressed in the assignment was $20,000. There were suggestions that the total cost to the applicant may have been in excess of that sum but the evidence was not sufficiently clear for us to make any contrary finding on this issue and we are left with the stated consideration of $20,000.\n29.\nThe applicant also stated that in 1980 he attempted to sell the property through a village elder for $350,000. He was offered $250,000 which he rejected. No sale was effected. In January 1982, by which time the pro-perty was subject to the statutory electricity easement, he reduced the sale price to $200,000, to take into account the effect of the easement on the property, but was unable to find a purchaser.\n30.\nIt is trite law that an offer to buy or sell at a certain price is not direct evidence of value Often it may merely be an estimate by the offeror of the value of the property to him. Depending on the circumstances it may not even be evidence of that fact. For an offer may also reflect the financial position of the offeror and his estimate of his bargaining position against the other party, rather than his estimate of the real value of the property. A variety of other factors, not directly related to value, may also influence the calculation of the offer. Generally little or no weight should be given to evidence of this kind as was emphasised by.the High Court of Australia in\nMcDonald v. The Deputy Federal Commissioner of Land Tax for New South Wales\n(1915) 20 C.L.R. 231, 237, where in a taxation appeal Isaacs J., pointed out:-\n\"\n... it is plain that the mere fact of a statement by an owner to a stranger that he would be willing to sell at a given figure, and that offer was not accepted, for some reason undisclosed, is not evidence of what the Statute requires, namely the price which a willing buyer would give, supposing the seller announced reasonable conditions. At most, it is evidence of the owner's bona fide belief at the time as to the value of his land. Nor is the refusal of the person to whom the offer was made to accept it, even if specifically on the ground of excessive amount, any more than an expression of his opinion on the point ... When the matter has reached the point of a concluded contract, there has been a definite concrete fact established, which not only evidences value, but to some extent helps to create or modify it. Where an owner has actually parted with his land for a fixed sum and a buyer has parted with his money for the land, a clear event has arisen, which, based on the ordinary instincts and impulses of human nature, indicates a consensus of opinion between two adverse parties in the community respecting the value of similar lands. Some advantage to justice is therefore manifestly possible from considering it, and the law presumes that up to that point the disadvantages of having to undertake the collateral inquiries as to compari-son do not outweigh the possible advantages.\nBut if the negotiations do not end in a concluded bargain, the field is at once open to a multitude of other considerations before the same point of opinion is reached. Excursions into the realm of collateral circumstances would be endless. \"\n31.\nWe have been unable in this application to refer, if only for background purposes, to current rateable values. For the subject property is exempt from rates under the\nRating Ordinance\n,\nCap. 116\n. Section 36(1)(a) exempts from assess-ment agricultural land while Section 36(1)(b) exempts any dwelling house in the New Territories (except New Kowloon) which is occupied in connexion with agricul-tural land. The Commissioner of Rating and Valuation has therefore not been obliged to value the roperty.\n32.\nHowever, we did have the assistance of the evidence of Mr. T. Lo, Chartered Surveyor, who was called by the respondent. Mr. Lo was of the opinion that there had not been any diminution in value attributable to the registration of the order. In coming to that conclusion, he disregarded the existence of the residential buildings treating the property as agricultural land. Turning to possible comparables he stated that there was no record of any comparable transactions for similar properties before and after orders were registered. So there was no direct evidence of any possible diminution in value as reflected in actual sales. As far as sales generally in the immediate locality were concerned, he stated that these suffered from the disadvantage that they were either in or near the Tuen Mun New Town Layout. He was of the opinion that sales in both of these areas reflect a speculative element arising from the Crown's practice of making generous ex-gratia payments to owners of resumed land.\n33.\nWe have already considered this issue in\nHofei Estates Limited v. Secretary for City and New Territories Administration\nC.L.R. No. 1/82. We accept that prices paid within layouts tend to exceed the true value of those properties for agricultural use However, we are not satisfied that principle can properly be extended to properties outside a layout. If there is a pattern of sales of comparable agricultural land outside a layout, those sales should not be rejected solely because of the possibility that they may include a speculative element arising from the hope that, at some indeterminate time in the future, an existing layout maybe extended to include such properties.\n34.\nIn Appendix XI of his report, Mr. Lo set out details of sales of Properties Nos. 1, 2, 3 and 4 all of which are within the Tuen Mun New Town Layout and quite properly rejected by him as comparables for that reason. He then went on to give details of Properties Nos. 5, 6 and 7 all of which are not only outside the layout but are situated in the same locality as the sub-ject property. However, he also rejected these latter three properties on the ground that, while they were outside the layout, their sale prices were also inflated due to the vicinity of the layout.Yet, in relative terms, 'they were no closer to the layout than the subject property. To overcome this self-imposed restriction, Mr. Lo went far beyond the locality of the subject property and preferred to rely on much larger agricultural properties in more remote areas. The procedure he followed, he explained, was that he:-\n\"... gathered sales evidence of land lying in the more remote part of the New Territories where there is little or no prospect of resumption or development. \"\nIn March 1981, sales of agricultural land in those remote areas ranged from as low as $43 to $80 per square metres for properties ten to twenty times larger than the subject property. The subject property is 202.34 square metres. The area of Mr. Lo's preferred comparables were 4694.31 square metres, 4532.44 square metres and 2630.43 square metres. On the basis of those very different transactions he adopted a rate of $80 per square metres for the subject pro-perty producing a value of $16,187. Having considered the particulars of those much larger and more remote properties, which are referred to Appendix XII of his Report, we are satisfied that they are not sufficiently comparable to be used as a sound basis for valuing the subject property.Indeed, they would be well below the market value of the subject property as, conversely, agricul-tural land within a layout, would be above the value of the subject property.\n35.\nWe note in passing, that the Crown's ex-gratia zonal rate for resump-tion of agricultural land within the Tuen Mun Layout,being 75% of $89 per square foot,is very much higher. Indeed it equals $718.50 per square metre compared to the $80 per square metre used by Mr. Lo for his valuation of the subject property. We understand that the zonal rates are for bare agricultural land without buildings. If the subject property were within the layout, that would produce a figure of $145,000 plus an allowance for buildings.\n36.\nNotwithstanding Mr. Lo's hesitancy, we are satisfied that greater weight should have been given to Properties Nos. 5, 6 and 7 in Appendix XI. Of these Property No. 7 appears most closely to relate to the subject property. Property No. 7 is similar in size comprising 228.17 square metres compared with the subject property's 202.34 square metres. The property was sold for $98,240 on the 30th day of May 1981 which also is very close to the date at which we have to assess compensation, namely the 30th day of March 1981. This property also appears to be a similar if not even a further distance inland, from Castle Peak Road and to lack vehicular access. It is likewise outside the Tuen Mun Town Layout. Unfortunately, we were not told whether Property No. 7 was bare agricultural land or whether it includes any buildings.\n37.\nNevertheless, even after taking into account Properties Nos. 5, 6 and 7, the evidence remains insufficient for us to make any precise finding as to the actual open market value of the subject property as at the 30th day of March 1981. We are satisfied, however, that it is worth less than the applicant's suggested valuations which varied from $350,000 to $200,000.Equally it is worth very much more than the respondent's value of $16,187. Some of our difficulties may not have arisen if the applicant had called a valuer. In the circumstances we can only estimate that the open market value of the property as at the 30th day of March 1981, may have been somewhere in the region of $100,000 to $200,000. We would emphasise that we have not arrived at those figures as the open market value of the property but merely record them as parameters within which the actual open market value would probably fall.\n38.\nWe must now proceed, as best as we are able, subject to all the foregoing qualifications, to ascertain the diminution, if any, in that value of the land \"attributable to the registration of the order\". We hold that any such diminution necessarily.includes not merely the registration of the Order in terms of the Ordinance but also the construction of the transmission line which includes the pylons and the lines themselves. The normal method of ascertaining any diminution would be to compare the value of properties, as reflected in actual sales, which are subject to such orders with similar pro-perties which are not encumbered by such orders. It was common ground that as this is the first major transmission line affecting privately owned pro-perties there simply is, as yet, no record of any such sales.\n39.\nHowever, we have had .the advantage of inspecting the property. No pylons are constructed on the property but the transmission lines pass over the property. This particular transmission line appears physically to be of a much larger kind than is commonly seen elsewhere in Hong Kong.The pylons are major steel structures carrying 6 transmission lines at a height of about 100 feet above the residential buildings of the subject property. The subject property itself is largely covered by the buildings we have already described. The buildings take up 65% of the total area. The balance of 35% comprises paths and a small garden. So this is not an example of the more common case of electrical transmission lines covering large areas of remote bare agricultural land.\n40.\nBefore proceeding to consider the effect of the order on the subject property it may be helpful, particularly as this is the first application under our new Ordinance, to consider the position in countries overseas where for much longer, statutory provision has been made for the erection of electrical trans-mission lines over private property. In England the empowering legislation is the Electricity .(Supply) Act 1919 and the Electricity Acts 1947-1958. Where \"way-leaves\" are.acquired a right of compensation arises. Compensation is determined under the Land Compensation Act 1961 so the general principles relating to the compulsory acquisition of land by the Crown are applicable.A \"way-leave\" is defined in Volume XII\nOxford English Dictionary\n211 as:-\n\"\nway-leave\n: permission to make and use a way for conveying coal from the pithead across a person's land; the rent or royalty for such permission; the way or road constructed for the purpose. Also, permission to carry telephone wires over or along buildings, or to lay waterpipes or drains across private land, and the charge or rent payable therefor.\"\n41.\nThe first cited use of \"way-leave\" goes back to 1427. With the development of electricity and the necessity to reticulate it over long distances \"way-leave\" has also been used, to mean the right to carry electri-cal transmission lines over or under land. In '\nModern Methods\nof Valuation of Land, Houses and Buildings\n' (6th Edn.) 413 it is stated that in England:-\n42.\n'The acquisition of \"way-leaves\" ... may include the following:-\n(a)\nThe carrying of overhead conductors across land by means of supports erected on the land;\n(b)\nthe carrying of overhead. conductors across land without any supports being erected on the land itself - sometimes referred to as \"oversails\";\n(c)\nthe carrying of conductors underground.\nThe extent of the injury suffered by owners and occupiers will obviously differ according to the nature of the wayleave.'\n43.\nIn this particular case the species of wayleave affecting this property is that categorised in paragraph (b) as \"\noversails\n\". As to the diminution in value caused by\noversails\nthe authors go on to state:\n\"In (b) there is no actual occupation of the land itself, and in the case of purely agricultural land the presence of the oversail may have little, if any, effect on value, although the minimum height at which the conductor crosses the land is always a matter for consideration.\"\n44.\nIn England compensation is paid either by way of annual rent or by way of lump sum payment. Under Section 10 the power to award compensation seems to be wide enough to cover both alternatives. In this claim, the applicant sought a lump sum payment.\"\nModern Methods of Valuation\n\", after referring to actual loss suffered to owners by damage to crops and the like, observes that normally electricity conductors cross open country and that if it were proposed to carry a line over ripe building land the better course for an owner would be to make representations for an alternative route. This implicity recognises that a loss may be suffered by the mere presence of an oversail, even though there is no physical damage to crops or other property. Express reference to the affect of oversails on bare land with development potential is made at page 415:\n\"If the original proposal were persisted in, then the effect on the value of the state of the erection of pylons on certain plots and the presence of high-voltage cables over other plots would have to be considered. In such a case a claim for depreciation in the value of the land affected could be made.\"\n45.\nReference is also made to the decision of the English Lands Tribunal in\nRadnor\nTrust Ltd. v. Central Electricity Generating Board\n(1960) 12 P. & C.R. 111 which was a claim for compensation due to the erection of pylons and oversails. £220 was awarded for the value of the land taken for the pylons and £750 for depreciation in the value of the house. However, the depreciation appears to have been allowed because of the pylons and no separate provision was made for the oversails. The Tribunal was satisfied that the pylons and the wires depreciated the property's value stating at page 114:\n\"I have viewed the property and in the light of that view I am satisfied that the existence of the pylons and wires does not materially detract from the enjoyment of the very attractive property. At the same time I am satisfied by the evidence that it would prove a deterrent to some, and form a strong bargaining point in the case of all prospective purchasers.\"\n46.\nSo the Tribunal found that the pylons, together with the transmission wires, would affect the bargaining position of\nall\nprospective purchasers. A less generous view seems to have been taken by a differently constituted Lands Tribunal in Pryor v. Central Electricity Generating Board (1968) 206 E.G. 1143. In that case compensation was allowed for the potential interference with aerial cultivation, annual cleaning, converging of double lines and injurious affection to the farmhouse. But on the facts of that particular case a claim that future sales would be impaired was rejected.\n47.\nThe present applicant places the affect of the transmission lines on a future sale in the forefront of his claim for $200,000.He submitted that the erection of the transmission lines had affected his enjoyment of the pro-perty by their physical presence above the property; their affect on fung shui; their danger to human and animal health; and their affect on television reception. All these factors, it was submitted, would result in a lower resale value of the property.\n48.\nAs to loss of resale value, the applicant cited his first offer to sell the property before the transmission lines were erected for $350,000 compared with his reduced subsequent offer of $200,000. Now he expected to be able to sell the property at about $150,000. He therefore assessed his loss of value on resale at $200,000 being the difference between the earlier $350,000 and the present $150,000. In the New Territories he stated that fung shui is a dominant factor in ascertaining land values. The installation of the transmission lines, in his opinion, had reduced the fung shui value.\n49.\nThe applicant produced a newspaper article in the '\nOriental Daily News'\nof 3rd September, 1981 apparently prompted by the construction of these transmission lines, raising fears of the danger to human life. On whether high voltage lines cause danger to human and animal life the respondent called its Environmental Protection Officer Dr.C.J. Muskett Dr Muskett holds the degrees of Bachelor of Science (Honours) and Doctor of Philosophy, in Applied Biology from the University of London and is a Member of the Institute of Biology. For 8 years he has been employed as a professional environmental scientist. We accept he is an expert in these fields. He produced reports on the effects of high voltage transmission systems on animals and humans, supporting his.opinion by reference to 27 authorities. Dr. Muskett's evidence was most interesting and revealed that for some years research studies have been carried out to investigate the effect of high voltage transmissions on animals and humans. His evidence included the following observations:\n\"Overhead transmission lines affect the surrounding environment in a number of ways. In addition to the electric and magnetic fields generated; small arc discharges, air ions, low frequency noise, ozone nitrous exide and radio interference are also characteristically produced. Hence the environment in the vicinity of transmission lines can be in chemical and physical terms, extremely complex ... research studies carried out in America and Western Europe into the possible effects of transmission lines on human health ... none of these studies was able to indicate a significant effect of electric fields on humans number of Soviet studies and more recently Spanish studies have been carried out on persons occupationally exposed to high voltage electric fields in switchyard environments. Before proceeding with a review of the research results from these studies, it is important to Consider the differences in environmental conditions prevalent in switchyards as opposed to those in the vicinity of transmission lines. In contrast to the studies conducted in America and Western Europe, Soviet studies have indicated adverse effects of high voltage trans mission. In a report by Krivova for example, in which 319 men aged up to fifty years exposed to switchyard environments rated at 220,330 and 500 kV were tested, it was concluded that the electric field caused a nonspecific disturbance to the central nervous system. Another Soviet study, by Asanova and Rakov carried out on workers employed on 400 and 500 kV installions found multiple functional disorders of the neurological, cardiovascular and digestive systems. Sazonova followed up these disorders and found comparable results in further studies ... Much criticism has been levelled at the Russian studies, principally with regard to methodology ... However, as a result of the Russian work, exposure standards have been set for occupationally exposed persons in the USSR ... Based on this review of available data, it appears that there is no conclusive evidence to support the hypothesis that there may be significant biological effects from exposure of the public to EHV transmission systems.The effects that have so far been reported are confined to occupational exposure situations (switchyards) and are non-specific. Persons working in switchyards would be expected to be exposed to greater electric field intensities than would be the case for members of the public in the vicinity of transomission lines. In addition occupationally exposed workers would be subject to additional environmental influences such as low frequency noise, small arc discharges, vapours from transformer oils and oxidants (ozone). These additional factors are unlikely to be significant to members of the public. The overall conclusion resulting from a review of the relevant literature is that 400 kV transmission systems have not been shown to be in any way hazardous to the general public.\"\n50.\nDr. Muskett was of the opinion that the high voltage electricity transmitted in the wires would not affect the health of either the persons living at the property or the pigs and chickens reared for sale.He therefore equated their position with that of the general public.\n51.\nThe complaint in respect of television reception seemed credible. It was consistent with Dr. Muskett's concession that the transmission lines could cause radio interference. Yet when we visited the property and the television was put on, for demonstration purposes, it did not appear to be affected by the high voltage transmission lines.\n52.\nWe were informed by the respondent that if one of the wires should break and fall to the ground it would be automatically neutralised posing no danger. The pylons and the wires had been designed to withstand a wind force several tines greater than the maximum recorded winds in this area during the past 50 years. Many of the applicants' fears were either ungrounded or speculative.\n53.\nAt the same time we sympathise with his obvious concern. A layman's fears caused by these transmission lines is certainly understandable. As to the speculative nature of some of these fears, a similar issue arose in\nWood & Anor v. Taranaki Electric-Power Board\n(1927) N.Z.L.R. 392. The Board had erected a transmission line along the common boundary of the claimants farm and an adjoining major drain. The claimants claimed compensation for diminu-tion in the value of their land caused by the proximity of the lines which rendered more costly the regular cleaning of the drain. The Court of Appeal held that the Board was by statute responsible to clean the drain and no duty devolved on the claimants. However, as to the possible damage to land or animals from falling wires, the Chief Justice observed:\n\"On the argument before us counsel for the claimants admitted that the claimants could only recover compensation in respect of losses sustained in consequence of what the respondent Board has lawfully done or might lawfully do under its statutory powers. If it exceeds those powers, either by committing an act not authorized or by doing an authorized act in a negligent manner, the person injured would have a remedy by action and would not be entitled to compensation. The respondent Board contended that no injuries of any kind mentioned were proved to be necessarily incidental to the proper use of such transmission-line, or to its use without negligence; and that if any injury can be suggested to be necessarily incidental to the proper use of the transmission-line the happening of the same is too uncertain and speculative to be the subject of compensation. The claim therefore is based entirely upon an anticipated injury to the land of the claimants not due to negligence on the part of the respondent Board. The risk, it is suggested, may arise from the breaking of one or more of the transmission-wires by tempest, accident, or some unforeseen cause bringing the wires into contact with the lands through which they run, and so causing fires on the lands and to the fences and injury to the live-stock. It was shown however, by the evidence that the transmission-lines of the respondent Board are supplied with what is ordinarily known as an overloading device, and in addition with a leakage relay device. The effect of these safety devices, according to the evidence, is that directly a transmission line comes off the insulator or makes contact with the earth the line is deadened automatically ... After considering the evidence we hold as a fact that there is no reasonable probability of injury to the land or the live-stock of the claimants by reason of the accidental fall to earth of the transmission-wires. The possibility of such a fall of wires is wholly uncertain and quite incapable of estimation. It may never happen. If it should happen it appears clear from the evidence that there is no reasonable probability of injury to the land .... It is impossible to hazard or guess whether some such accident would ever happen, or whether, if it should happen, what injury would be sustained by the workmen. The whole matter is in the region of mere speculation. For these reasons we determine that the claimants are not entitled to compensation in respect of the injurious affection claimed for risk of damage to their lands by fire and injury to workmen and stock, and generally to the lands, through the escape of electrical energy from the said works.\"\n54.\nWe have also considered the English Court Appeal decision in\nWest Midlands Joint\nElectricity Authority v. Pitt & Ors.\n(1931) 2 K.B. 2 which considered wayleaves; the power to place electric lines across land; land- owners right to compensation; and the procedure by which it was determined. The power to place transmission lines over private land in England was introduced in 1919 by the Electricity (Supply) Act. Among several issues resolved by the Court of Appeal which are of interest in the present claim, is that it was undisputed that the wayleave was \"land\" within the meaning of the English Acquisition of Land (Assessment of Compensation) Act 1919. The easement constituted an interest in land and was therefore \"land\" for com-pensation purposes. The narrow question was whether compensation was to be determined judicially or decided administratively by the Minister of Transport.\n55.\nThe rental offered for the wayleave was calculated on the basis of the number of towers with different rates depending whether they were erected on arable, grass or other land together with a different rate for underground cables. The length of oversails was not an element expressly taken into account. However, the judgments of the Court of Appeal were emphatic that, apart from statutory rights under the Electricity Acts, the Crown had no right to enter upon private land to erect pylons or carry electric lines across such land. Romer L.J. at page 54, referring to the effect of a wayleave over private property, observed:-\n\"But an electric line cannot be so placed without taking away some of the rights of property of the owner or occupier of the land ... But he does obtain a legal right to compensation as I understand those words. The compensation to which the statement of Lord Atkinson refers is surely compensation commensurate with the invasion of his property that the land owner has incurred, and not a compensation commensurate with the sense of justice possessed by the Minister of Transport for the time being.\"\n56.\nIn Hong Kong a right to compensation arises pursuant to Section 10 in favour of a claimant, upon the registration of an order under the Electricity Networks (Statutory) Easements Ordinance against his property. In the event of a dispute it is to be determined judicially by this Tribunal. Section 10 further provides that the measure of compensation is the diminution in the open market value of the property attributable to the registration of the order.\n57.\nBefore proceeding to determine if there has been any diminution in value, there is one other matter which arose in evidence which we should refer to at this stage. We were informed that the route of the wayleave affecting many properties was determined after consultations with at least some of the parties affected. An arrangement was also made between the Government and the respondent whereby the Government, as agent for the respondent, would make ex-gratia offers to the various owners whose properties were affected by the wayleave. The offers were conditional upon the owners waiving and surrendering all their rights against the respondent. A letter from Government to the applicant dated the 4th day of August, 1981 included this provision:\n\"4\nHowever, Government on behalf of China Light and Power Company Limited is prepared to offer you for the land affected an ex-gratia cash allowance of $10,346. This offer is subject to the following conditions:\n(a)\nthat you waive and surrender to China Light and Power Company Limited all your rights to and interest in the compensation payable to you in respect of the said lot(s) under Section 10 of the Ordinance; and\n(b)\nthat you accept this offer in writing by signing the acceptance part of this letter and returning it to me before 3rd August 1982.\"\n58.\nThe Government is not a party to these proceedings for under the Ordinance the parties are the owner of the property as applicant and the China Light and Power Company Limited as respondent. In Hong Kong the production and sale of electricity is not a Government function but is the business of public limited liability companies. The Government may have considered that it was in the public interest for the technicalities in relation to the way-leave to be resolved expeditiously and offered assistance. In any event it undertook the task of negotiating with the owners on behalf of China Light and Power Company Limited. We are not concerned with that decision. What does concern us in this claim, however, is the preceding paragraph of that letter which concluded:\n\"The Tribunal must, under Section 10 of the said Ordinance, determine the compensation for your estate or interest strictly in accordance with the lease conditions and is precluded from awarding any compensation in respect of any expectancy or possibility of a grant of land exchange or licence and must discount any evidence which shows that the land values have been enhanced by expectation of development or of a modification of lease conditions. If you are not sure of your rights you should enquire from the District Office, Tuen Mun or seek independent professional advice.\"\n59.\nNo doubt that paragraph was written in the utmost good faith. It includes a statement of what the Tribunal \"must\" do in determining compensation which might be thought to be an unhappy choice of words. What is more important is the reference to the Tribunal having to discount the expectancy or possibility of a grant of land exchange or licence or any enhancement by expectation of development or of a modification of lease conditions, which enters a difficult area of law. In certain circumstances that statement of law in the letter apparently limiting a claim for compensation is wrong. A similar statement was included in a subsequent letter from the respondent to the applicant dated 14th April 1982. An example of where such an expectancy or possibility, to the contrary, is\nnot\nto be discounted has already been referred to in\nChing Chun-kai v. Director of Lands and Survey\n(supra).\n60.\nThe very same issue arose in this application when we came to consider the Modification of Tenancy. We have held the mere expectancy of the annual renewal of the modification of tenancy is not to be a discounting factor. In many compensation claims a variety of delicate questions may arise. If the Government ventures to inform the parties with whom it is negotiating of the legal limit of their right to compensation, care should be taken to ensure that such information is accurate. Here the Government informed this applicant that, as a matter of law, his right to compensation was in one particular limited, when in fact it appears to be not so limited.\n61.\nWe now return to the question whether there was any diminution of value. We have already seen that due to the fact that the wayleave had just been completed and is the first of its kind to be built in Hong Kong affect-ing private land, that there simply are no comparables of affected and unaffected similar properties from which we could arrive at a figure by that method.\n62.\nIn those circumstances Mr. Lo adopted what he described as a notional method of valuation. He discounted the possibility of the annual renewal of the modification of tenancy. He accepted that the lines are inherently safe and that there was no substantiated health hazard to humans or to livestock. On that basis he concluded that the registration of the Order would not diminish the agricultural value of the land.\n63.\nWe have already held that in assessing the value of the property the existing permitted residential use is to be taken into account, as well as the agricultural user. We accept, however, that the oversails are inherently safe and following\nWood & Anor v. Taranaki Electric Power Board\nno compensa-tion is presently payable for the possibility that they may become unsafe or cause damage in the future. This finding in no way prejudices the applicant. For if in the future the lines became unsafe and the applicant were to suffer damage he would then, depending on the circumstances, have a claim not for compensation but an action for damages. In particular we would point out that Section 11 not only preserves a party's common law rights but, in addition, creates a separate statutory cause of action in favour of persons suffering loss or damage.\n64.\nFrom our view of the property we are satisfied that the oversails do not affect television reception. Nor on the evidence has it been established that there is any health hazard caused by their presence. If any of these factors were established then, while they are not separate statutory heads of compensation, it would be open to us to infer that their presence would diminish the open market value of the property.\n65.\nSimilarly,if the adverse fung shui effect of the transmission lines was reflected in a reduced open market value, weight would also have to be given to that factor. It matters not whether fung shui is a separate head of compensation or recognised by the statutory or common law, if in fact it affects the open market value. The position might well be the same even if the open market value was not the test and we had to consider loss or damage generally. For\nSection 3\nof the\nApplication of English Law Ordinance\n,\nCap. 88\nprovides that the common law shall be in force in Hong Kong so far as it is applicable to the circumstances of Hong Kong and its inhabitants and \"subject to such modifications as such circumstances may require.\" Under that provision Hong Kong Courts have, for example, long recognised as separate common law heads for damages in personal injuries actions, claims for extra nourishment and bonesetters fees, which would not be allowed in England.\n66.\nIf the need arose there is no reason why the courts in Hong Kong, in appropriate compensation cases, might not recognise fung shui. However, in this case we do not need to consider fung shui as a separate head of com-pensation for if it is, as alleged, a factor in the price of land in the New Territories, it would be reflected in the open market value. The only evidence on fung shui was from the applicant himself. He was a relatively young man, who did not claim any expertise in fung shui, but merely made the general assertion that fung shui is a dominant factor in land transactions among villagers in the New Territories and that the fung shui of his property had been adversely affected. On that evidence, alone, if it were necessary we would be unable to find that the order has diminished the value of the pro-perty because of the alleged detrimental fung shui effect.\n67.\nThe ownership of property at common law includes, of course, not only the surface of the earth, but as stated by Pollock C.B. in\nElectric Telegraph Co. v. Salford Overseers\n(1855) 11 Ex. 181 everything under and over the surface of the land. However, those rights are only to everything immediately above and immediately below the surface. On the other hand we accept the respondent's submission, citing\nWilliam Aldred's Case\n9 Co. Rep. 57b, that an owner of land enjoys no right of prospect. As Wray C.J. declared at page 58b:\n\"... the law does not give an action for such things of delight. \"\n68.\nOn this point we were also referred to Megarry & Wade\n\"Law of Real Property\n\" (3rd Edn.) 812. We therefore ignore the fact that the pylons and transmission lines on at least one adjoining property may have effected the applicant's view. For loss of view beyond his property he is not entitled to any compensation.\n69.\nAs to the right of ownership of everything above and below the surface the only restriction on that common law right is where legislation has intervened to impose modifications or restrictions. The enactment of the\nElectricity Networks (Statutory Easements) Ordinance\nas recently as 1980 is an implied recognition of that common law right in Hong Kong. For the respondent had to obtain the statutory power, not merely to construct pylons on private land, but also to carry electric lines across private property. The exercise of that power, whether described in the terms of Romer L.J. in\nWest Midlands Joint\nElectricity Authority v. Pitt & Ors.\n(supra) 54, as an \"invasion\" of the applicant's property rights, is certainly an interference with the applicant's estate or interest in the property which, but for that exercise, would not have occurred.\n70.\nOn the basis of the evidence and our inspection, we are satisfied that in applications under the\nElectricity Networks (Statutory Easements) Ordinance\n, it will be important for each affected property to be considered on its own particular facts. Properties necessarily vary one from another. In some cases an affected property may be bare agricultural land; others may include residential buildings;still others may consist solely of residential buildings.In large properties the effect of a wayleave may be less than in the case of smaller properties. These and other differences will be among the factors which will inevitably result in different amounts of compensation being awarded. Certainly these differences make it impossible to evolve a simple formula, statistical, by way of percentage or otherwise, which could directly be applied to all affected properties. In this particular case, we considered it necessary to view the property. We found our inspection invaluable. In the light of the differences we have adverted to, it would seem to be necessary and certainly desirable, for the Tribunal to view each property involved in similar applications under the Ordinance before compensation is determined.\n71.\nThe easement registered against the subject property is in relation to 144 square metres or approximately two-thirds of the total area of the pro-perty. The respondent contended that as only two-thirds of the property was immediately under the 6 transmission lines compensation was payable for a maximum sum equal to the diminution of two-thirds only, of the total area of the subject property. We reject that contention. Where an affected property is relatively small, if it is crossed by transmission lines of this size, then probably the whole of the property will be detrimentally affected. In this particular case we are satisfied that while the transmission lines are immediately over only two-thirds of the property, their presence affects the whole of the property. It would be artificial and misleading to attempt to limit their affect by partition, severance or other means. We are well satisfied that while the transmission lines cross directly over two-thirds of the property, the whole property is affected.\n72.\nWhat we also find from our view of the property is that the sheer size of the lines together with manner in which they are strung, materially detracts from the visible appearance and enjoyment of the property. We are satisfied that if there were an otherwise identical property in this area, not subject to the wayleave, then it would be preferred by a willing buyer to the applicant's property subject to the wayleave. The presence of the wayleave to the detriment of the owner would certainly, to apply the words used in\nRadnor Trust Ltd. v. Central Electricity Generating Board,\npage 114, \"form a strong bargaining point in the case of all prospective purchasers\".\n73.\nAgainst this background we hold that the value of the applicant's property has diminished but the real difficulty is to quantify the amount of the diminution. We have already observed that this is not a case where comparables indicating diminution in value are available or where unit rates or before and after methods of valuation, are appropriate. We share the view expressed in\n'Modern Methods of Valuation' at page\n413, that generally oversails will have little effect or no effect on value. In this particular case we are not concerned with a major diminution of value but we are satisfied there has been some diminution.\n74.\nWe have already dwelt on the fact that in some areas we have, to some extent, been inhibited by a lack of detailed evidence. However, on the basis of the evidence that has been adduced and in accordance with the principles we have mentioned, we determine the compensation payable to the applicant under Section 10, by way of lump sum, at $20,000. The applicant is also entitled to interest since the 30th day of March 1981. Leave to apply is reserved in respect of interest, costs and any other incidental matters.\nDATED this 11th day of March, 1983.\n(Judge G.N. Cruden)\n(M.W. Phillips)\nPresiding Officer\nMember\nRepresentation:\nThe applicant in person.\nMr. C.N. Ingham, by leave, for the respondent.", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/ref/en/1982/LDMR000001_1982.doc", + "file_name": "LDMR000001_1982.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkldt/2004_HKLDT_32/LDPD001380_2004_direct_fallback.txt b/en_cases_hkldt/2004_HKLDT_32/LDPD001380_2004_direct_fallback.txt new file mode 100644 index 0000000..d6664cf --- /dev/null +++ b/en_cases_hkldt/2004_HKLDT_32/LDPD001380_2004_direct_fallback.txt @@ -0,0 +1,34 @@ +``` +The Background 1.The Applicant of the captioned application is the landlord of a property at No.67B. 10th Street, Hong Lok Yuen (on SS 847 of S.H. of Lot No.1945 in D.D. 7). The property is a semi-detached house leased to the Respondent since 6th September 2002. The application seeks to recover the arrears of rent and possession of the above-mentioned property. + +The Dispute 2.The Applicant was represented by her husband and the Respondent appeared in court in person. The Applicant's representative advised the Tribunal that the Respondent had since the 6th October 2003 failed to pay the full rent stipulated under the tenancy agreement. The rent stipulated under the tenancy agreement is $18,000 per month whereas the amount the Applicant received each month since 6th October 2003 fell short by $2,500 to $6,840. The total amount she received since 6th October 2004 up to the Respondent's last payment in April 2004 fell short by $21,840. By the amount of $104,160 she received to set off the amount the Respondent needs to pay each month, she reckoned that the arrears emerged in the month of March 2004 (i.e. from 6th March 2004 to 5th April 2004). The amount of arrears for this month is $3,840. Thereafter, the Respondent owed her $18,000 per month. + +Agreement for Rent Reduction 4.To substantiate the agreement, the Respondent took out two letters between the Applicant and himself. These are the letter sent from the Applicant to the Respondent on 21st May 2003 and the Respondent's reply on 10th October 2003. The Applicant's letter in brief proposed to the Respondent a reduction of rent from $18,000 to $15,500 per month. The Respondent's reply is an acceptance of the offer. The Respondent considered that he was obliged to pay only $15,500 per month with effect from the 6th October 2003. + +Other allegations against the Applicant included the Applicant's threatening and evasive manner, and the Applicant's failure to implement structural repairs to up-keep the safety of the property. + +Conclusion 6.The Tribunal first of all does not accept that the outstanding repair works are good defence for not paying rent. The decision of the court higher in hierarchy than the Lands Tribunal in this respect is quite clear and binding upon the Tribunal. The Respondent should first establish the nature of works required and the responsibility for the repair. Only if the Applicant is responsible and she refuses to undertake the responsibility on request, the Respondent is entitled to kicking off the legal action. + +7.The Tribunal does not agree that the letter of 21st May 2003 was not an offer for reduction of rent. The gist of the letter is clear. The gist of the Respondent's letter of acceptance is clear, too. There was an agreement between the Applicant and the Respondent. The third letter from the Applicant on 17th October 2003 attempted to repudiate or withdraw the offer. The intention of this letter is clear, too. The point central to the issue is whether the third letter from the Applicant can validly overturn the agreement reached. + +8.For an agreement to be valid, there must be consideration passed from one party to the other. The consideration passed from the Respondent to the Applicant in the present case is as the letter of 21st May 2003 stated that the Respondent has to give up his right (under Clause 4 in Schedule II of the tenancy agreement) to determine the tenancy earlier than the stipulated tenancy expiry date. By this, the Tribunal considers that there was consideration passed and therefore a binding agreement between the two parties. The third letter of 17th October 2003 cannot invalidate the agreement reached. + +9.The Tribunal must now tackle the Applicant's view concerning the term "without Prejudice." The Applicant's view was correct that the contents of the letter marked "without Prejudice" should not be disclosed to the Tribunal. The Tribunal is supposed not to have knowledge about the existence of the offer. The Applicant's intention was quite clear. If the contents were not to be disclosed, the Tribunal would have no evidence of an offer on rent reduction. The Applicant's representative had attempted in court to block the Respondent's submission (of the letter) on this ground (not appropriate to disclose the contents). The Tribunal did not accept his move because the Tribunal was totally not aware the background of the issue. Without knowing the contents of that letter, the Tribunal would have to guess the full picture of the issue from the pieces of information provided in piecemeal. The Tribunal's refusal to view the contents (of the letter) therefore may result in injustice to the Respondent. The Tribunal's view is that it should see the contents of the letter in order to have a full picture of the case but since the letter should be barred, it should ignore this part of the information in arriving at its decision for the case. + +10.Having said so, the Tribunal's conclusion is that there is no agreement on rent reduction. The Respondent must pay back the arrears of rent as claimed. + +Orders: 11.(a)Vacant possession of the suit premises shall be delivered to the Applicant conditional upon the Respondent failing within 14 days in terms of the High Court Ordinance, Cap. 4, to pay the sums provided for in paragraphs (b) and (c) herein (if paid within 14 days, the Respondent be relieved from forfeiture and that all further proceedings in respect of this application be stayed); + +(b)The Respondent shall pay the Applicant (i) arrears of rent for the period from 6th March 2004 to 5th April 2004 in the sum of $3840 and (ii) the arrears of rent/mesne profits from 6th April 2004 until the date of delivery of vacant possession at the rate of $18,000 per month; + +(c)The Respondent shall pay the Applicant's costs of this application fixed at $800; and + +(d)Payment out to the Applicant upon payment in to the Tribunal by the Respondent. + +C.Y. LAM +Member Lands Tribunal +Mr. LEUNG Yiu-ki, the representative of the Applicant, in person +The Respondent, in person +``` + +--- FALLBACK: 此文件由直接二进制扫描提取文本生成 --- diff --git a/en_cases_hkldt/2004_HKLDT_32/case.json b/en_cases_hkldt/2004_HKLDT_32/case.json new file mode 100644 index 0000000..8bccbb7 --- /dev/null +++ b/en_cases_hkldt/2004_HKLDT_32/case.json @@ -0,0 +1,26 @@ +{ + "Date": "16 Jul, 2004", + "Action No.": "LDPD1380/2004", + "Neutral Cit.": "[2004] HKLDT 32", + "case_title": "CHAN YUK WAH V. RICHARDS, CAMERON KEITH", + "page_title": "CHAN YUK WAH V. RICHARDS, CAMERON KEITH | [2004] HKLDT 32 | HKLII", + "case_history": [ + { + "name": "LDPD1380/2004", + "link": "https://www.hklii.hk/en/appealhistory/LDPD/2004/1380" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkldt/2004/32", + "neutral_cit": "[2004] HKLDT 32", + "court_code": "HKLDT", + "content": "LDPD001380/2004 CHAN YUK WAH v. RICHARDS, CAMERON KEITH\nLDPD001380/2004\nLDPD 1380/2004\nIN THE LANDS TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nPart IV Possession Application No. LDPD 1380 of 2004\n_________________\nBETWEEN\nChan Yuk Wah\nApplicant\nAND\nRichards, Cameron Keith\nRespondent\nCoram: Member C.Y. LAM, Member, Lands Tribunal\nDates of Hearing: 29 June 2004\nDate of Judgment: 16 July 2004\n_________________\nJ U D G M E N T\n___________________\nThe Background\n1.\nThe Applicant of the captioned application is the landlord of a property at No.67B. 10th Street, Hong Lok Yuen (on SS 847 of S.H. of Lot No.1945 in D.D. 7). The property is a semi-detached house leased to the Respondent since 6th September 2002. The application seeks to recover the arrears of rent and possession of the above-mentioned property.\nThe Dispute\n2.\nThe Applicant was represented by her husband and the Respondent appeared in court in person. The Applicant 's representative advised the Tribunal that the Respondent had since the 6th October 2003 failed to pay the full rent stipulated under the tenancy agreement. The rent stipulated under the tenancy agreement is $18,000 per month whereas the amount the Applicant received each month since 6th October 2003 fell short by $2,500 to $6,840. The total amount she received since 6th October 2004 up to the Respondent's last payment in April 2004 fell short by $21,840. By the amount of $104,160 she received to set off the amount the Respondent needs to pay each month, she reckoned that the arrears emerged in the month of March 2004 (i.e. from 6th March 2004 to 5th April 2004). The amount of arrears for this month is $3,840. Thereafter, the Respondent owed her $18,000 per month.\n3.\nThe Respondent disagreed to all the above pleading of the Applicant's representative. He considered that he had paid all the required rent. He ceased to pay for the month of May 2004 because of the Applicant's legal action. He, nevertheless, has no financial problem to pay it any time. The Tribunal, in the absence of evidence regarding the payments made, had once felt puzzled as to whether there was outstanding payment. Upon further inquiry, the Tribunal understood that the Respondent's pleading was based on an agreement for reduction of rent from $18,000 down to $15,500 per month effective in October 2003, whereas the Applicant's reckoning was based on no such agreement.\nAgreement for Rent Reduction\n4.\nTo substantiate the agreement, the Respondent took out two letters between the Applicant and himself. These are the letter sent from the Applicant to the Respondent on 21st May 2003 and the Respondent's reply on 10th October 2003. The Applicant's letter in brief proposed to the Respondent a reduction of rent from $18,000 to $15,500 per month. The Respondent's reply is an acceptance of the offer. The Respondent considered that he was obliged to pay only $15,500 per month with effect from the 6th October 2003. Other allegations against the Applicant included the Applicant's threatening and evasive manner, and the Applicant's failure to implement structural repairs to up-keep the safety of the property.\n5.\nThe Applicant's representative denied that there was agreement on rent reduction. He advised the Tribunal that by a letter to the Respondent dated the 17th October 2003, the Applicant's stance that there was no promise to reduce the rent was clarified. The Applicant's representative had attempted to block the Respondent from submitting the letter dated 21st May 2003. He said that the letter on 21st May 2003 was marked \"Without Prejudice\". His solicitor advised him before the trial that the Tribunal should not accept its submission.\nConclusion\n6.\nThe Tribunal first of all does not accept that the outstanding repair works are good defence for not paying rent. The decision of the court higher in hierarchy than the Lands Tribunal in this respect is quite clear and binding upon the Tribunal. The Respondent should first establish the nature of works required and the responsibility for the repair. Only if the Applicant is responsible and she refuses to undertake the responsibility on request, the Respondent is entitled to kicking off the legal action.\n7.\nThe Tribunal does not agree that the letter of 21st May 2003 was not an offer for reduction of rent. The gist of the letter is clear. The gist of the Respondent's letter of acceptance is clear, too. There was an agreement between the Applicant and the Respondent. The third letter from the Applicant on 17th October 2003 attempted to repudiate or withdraw the offer. The intention of this letter is clear, too. The point central to the issue is whether the third letter from the Applicant can validly overturn the agreement reached.\n8.\nFor an agreement to be valid, there must be consideration passed from one party to the other. The consideration passed from the Respondent to the Applicant in the present case is as the letter of 21st May 2003 stated that the Respondent has to give up his right (under Clause 4 in Schedule II of the tenancy agreement) to determine the tenancy earlier than the stipulated tenancy expiry date. By this, the Tribunal considers that there was consideration passed and therefore a binding agreement between the two parties. The third letter of 17th October 2003 cannot invalidate the agreement reached.\n9.\nThe Tribunal must now tackle the Applicant's view concerning the term \"Without Prejudice\". The Applicant's view was correct that the contents of the letter marked \"Without Prejudice\" should not be disclosed to the Tribunal. The Tribunal is supposed not to have knowledge about the existence of the offer. The Applicant's intention was quite clear. If the contents were not to be disclosed, the Tribunal would have no evidence of an offer on rent reduction. The Applicant's representative had attempted in court to block the Respondent's submission (of the letter) on this ground (not appropriate to disclose the contents). The Tribunal did not accept his move because the Tribunal was totally not aware the background of the issue. Without knowing the contents of that letter, the Tribunal would have to guess the full picture of the issue from the pieces of information provided in piecemeal. The Tribunal's refusal to view the contents (of the letter) therefore may result in injustice to the Respondent. The Tribunal's view is that it should see the contents of the letter in order to have a full picture of the case but since the letter should be barred, it should ignore this part of the information in arriving at its decision for the case.\n10.\nHaving said so, the Tribunal's conclusion is that there is no agreement on rent reduction. The Respondent must pay back the arrears of rent as claimed.\nOrders:\n11.\n(a)\nVacant possession of the suit premises shall be delivered to the Applicant conditional upon the Respondent failing within 14 days in terms of the\nHigh Court Ordinance\n,\nCap. 4\n, to pay the sums provided for in paragraphs (b) and (c) herein (if paid within 14 days, the Respondent be relieved from forfeiture and that all further proceedings in respect of this application be stayed);\n(b)\nThe Respondent shall pay the Applicant (i) arrears of rent for the period from 6th March 2004 to 5th April 2004 in the sum of $3840 and (ii) the arrears of rent/mesne profits from 6th April 2004 until the date of delivery of vacant possession at the rate of $18,000 per month;\n(c)\nThe Respondent shall pay the Applicant's costs of this application fixed at $800; and\n(d)\nPayment out to the Applicant upon payment in to the Tribunal by the Respondent.\nC.Y. LAM\nMember\nLands Tribunal\nRepresentation:\nMr. LEUNG Yiu-ki, the representative of the Applicant, in person\nThe Respondent, in person", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2004/LDPD001380_2004.doc", + "file_name": "LDPD001380_2004.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkldt/2006_HKLDT_29/LDPD001477M_2006.txt b/en_cases_hkldt/2006_HKLDT_29/LDPD001477M_2006.txt new file mode 100644 index 0000000..b798846 --- /dev/null +++ b/en_cases_hkldt/2006_HKLDT_29/LDPD001477M_2006.txt @@ -0,0 +1,27 @@ +LDPD 1477/2006 +IN THE LANDS TRIBUNAL OF THE +HONG KONG SPECIAL ADMINISTRATIVE REGION +Application No. LDPD 1477 of 2006 +________________ +BETWEEN +SOUND VIEW ENTERPRISES LIMITED Applicant +and +CHAN KAI LUNG LERRY Respondent +________________ +Before: Deputy Judge WONG, Presiding Officer, Lands Tribunal +Date of Hearing: 12 September 2006 +Date of Handing Down of Judgment: 4 October 2006 +________________ +CORRIGENDUM +________________ +Please note the following amendments in the Judgment handed down on 4 October 2006: +On page 6 at paragraph 14: +1st line – “Mennai” should be “Mannai” +3rd line – “Mennai” should be “Mannai” +On page 6 at paragraph 15: +2nd line – “Mennai” should be “Mannai” +Dated this 31st day of January 2007. + + + (Carmen Leung) + Clerk to Deputy Judge WONG \ No newline at end of file diff --git a/en_cases_hkldt/2006_HKLDT_29/LDPD001477_2006.txt b/en_cases_hkldt/2006_HKLDT_29/LDPD001477_2006.txt new file mode 100644 index 0000000..fa2a163 --- /dev/null +++ b/en_cases_hkldt/2006_HKLDT_29/LDPD001477_2006.txt @@ -0,0 +1,86 @@ +LDPD 1477/2006 + +IN THE LANDS TRIBUNAL OF THE +HONG KONG SPECIAL ADMINISTRATIVE REGION +Application No. LDPD 1477 of 2006 +________________ + +BETWEEN +SOUND VIEW ENTERPRISES LIMITED Applicant + +and + +CHAN KAI LUNG LERRY Respondent + +________________ + +Before: Deputy Judge WONG, Presiding Officer, Lands Tribunal +Date of Hearing: 12 September 2006 +Date of Handing Down of Judgment: 4 October 2006 + +________________ + +JUDGMENT +________________ + +Background +1. This is an application by the Applicant for possession of the premises known as Flat C, 12th Floor, Block 7, and Car Parking Space No.198 on Basement, Beverly Villas, No.16 La Salle Road, Kowloon, Hong Kong (“the Premises”). The Applicant is the landlord of the Premises. By a tenancy agreement written in Chinese and dated 15 April 2003, the Applicant let the Premises to the Respondent for a term of two years from 9 May 2003 to 8 May 2005 at the rental of $18,500.00 per month (“the Tenancy”). + +2. Although the contractual term of the Tenancy expired on 8 May 2005, the Tenancy continues by virtue of the Landlord and Tenant (Consolidation) (Amendment) Ordinance 2004 (“the Ordinance”). Section 5(2) of the Ordinance stipulates that:- + +“On and after the commencement date, a tenancy to which Part IV applies and which is in existence on the day before the commencement date, but in respect of which no notice or request has been given or made before the commencement date under section 119 or 119A of the principal Ordinance, may, subject to subsections (4) ands (5), only be terminated by a transitional termination notice as provided for by section 6.” + +3. There is no dispute that section 5(2) of the Ordinance applies to the Tenancy and hence a transitional termination notice is required to terminate it. The Applicant did issue a transitional termination notice dated 8 May 2005 (“the TTN”) to the Respondent, and the Respondent did receive the same on 14 May 2005. The Applicant relies on the TTN to say that the tenancy has been terminated and claim for possession of the Premises. However, the TTN states that:- + +“Pursuant to section 5(2) of the above Ordinance, I hereby notify you that the tenancy of the above premises will be terminated on May 8th , 2005.” + +4. On the face of it, it seems that there was a mistake of the date of termination as it was the same date of the issuance of the notice. However, it is not the Applicant’s case that the date “May 8th , 2005” was wrongly typed by clerical mistake or that it should be read as “May 8th , 2006”. According to the evidence of the Applicant’s witness, Mdm. Chan Kwai Chuen, she did intend to put down the date “May 8th , 2005”, as she thought that she had to put down the date of expiration of the Tenancy. Thus, there was no clerical mistake, but only a mistaken belief of Mdm. Chan. + +5. Section 6(2) of the Ordinance stipulates that:- + + “A transitional termination notice must be served- +by a landlord, not less than 12 months; +… + before the day on which it is to take effect.” + +6. Despite Mdm. Chan’s mistaken belief, the Applicant argues that the TTN is a valid notice, as the Ordinance does not require the date of termination to be stated in the TTN, and once the Applicant has served the TTN, it can recover possession after 12 months. + +7. The Respondent disputes the Applicant’s claim, as the TTN issued by the Applicant is not a valid notice. The Respondent argues that the TTN must state a termination date by which the termination is to take effect and it cannot be less than 12 months from the date when the TTN was served. + +8. Thus, the only issue in this case is whether the TTN is a valid notice. + +Whether the TTN is a valid notice +9. Although, as submitted by the Applicant, there is no standard form for a transitional termination notice as prescribed by the Ordinance, it does not mean that the Applicant can give an ambiguous notice to the Respondent. At common law, a notice must be clear and certain, so as to bind the party who gives it and to enable the party to whom it is given to act upon it, at the time when it is given (see Woodfall: Landlord and Tenant, Release 63, at para. 17.246). The TTN issued by the Applicant is far from clear as to when the Respondent is to quit the Premises. The date “May 8th , 2005” would not give the Respondent, or any reasonable man, a meaningful deadline by which the Respondent must quit. + +10. The Applicant, however, argues that section 6(2) of the Ordinance does not require the date of termination to be stated in the notice and since the TTN has made reference to section 5(2) of the Ordinance, the Respondent should be able to refer to the Ordinance and know that the Applicant can recover possession after 12 months. The Applicant contends that it can simply wait for 12 months after the notice was served and then recover possession thereafter even though the notice did not specify an effective date of the termination. + +11. I totally reject this line of argument. I think section 6(2) of the Ordinance makes it clear that a transitional termination notice must be served by a landlord not less than 12 months before the day on which it is to take effect. Such a notice is equivalent to a notice to quit. The purpose of a notice to quit is to notify the recipient when he has to quit. A transitional termination notice must be interpreted in the same way. So it must state when it is to take effect. In other words, the date of termination must be mentioned in the notice or at least it is ascertainable from the notice the deadline by which the recipient must quit. The reference to the Ordinance would not help the Applicant, as it would not give the deadline by which the Respondent must quit. It only gives the earliest time the Applicant may recover possession, but it does not say that 12 months is the deadline for the Respondent to quit. A landlord can always give a longer notice period than 12 months because section 6(2) only stipulates that the period cannot be less than 12 months. So one would not know the deadline by reference to the Ordinance. + +12. The Applicant also argues that the Ordinance should be interpreted in a way that would give effect to the purpose of the legislation. According to the Applicant, the purpose of the Ordinance is to ensure that a landlord can recover possession after 12 months. I do not agree with the Applicant on this contention either. As submitted by the Respondent, the purpose of the legislation is to give a transitional period for those tenants who would be affected by the Ordinance. When the Ordinance took effect on 9 July 2004, a landlord would no longer be required to give any statutory notice to terminate a tenancy. Section 5(2) and section 6(2) are to safeguard the position of those tenancies created before the commencement of the Ordinance. I think the purpose of the legislation is to ensure that the tenants of such tenancies would have sufficient notice to quit and not affected by the new law during the transitional period. Thus, the purpose of such transitional provisions in the Ordinance is to protect the tenants rather than the landlord. On such purposive interpretation, I would also find in favour of the Respondent. + +13. The Applicant refers to two cases mentioned by Mr. Malcolm Merry in his book “Hong Kong Tenancy Law 4th edition”, at page 140, to support the contention that a notice to quit should be given a more liberal interpretation. It used to be thought that notices should receive a strict or literal construction and the notice should be precise, but in Carradine v. Aslam [1976] 1 WLR 442, the court held that the test was whether the notice was clear to a reasonable tenant reading it: was it plain that he could not be misled by it? In the Carradine case, a landlord was held to be entitled to break a lease in September 1975, when he had given notice to do so in September 1974, but mistakenly put down a date in September 1973. As the date given was impossible, having already passed, it was clear that the landlord could not have meant September 1973. + +14. The second case is Mennai Investment Co Ltd v. Eagle Star Assurance Co Ltd [1997] AC 749, where the House of Lords approved the test laid down in the Carradine case. In the Mennai case, the lease contained a break clause permitting the tenant to end the lease by serving written notice of not less than six months upon the landlord to expire on the third anniversary of the term commencement date. That date should be 13 January 1995, but the tenant gave the date of 12 January 1995 in the notice. The House of Lords ruled that as the landlord would know the date of the third anniversary of the commencement of the lease, the landlord would not have been misled by the wrong date. The House of Lords emphasized that the test was to be applied objectively, i.e. the question was not whether the notice was clear to the actual recipient but whether it would have been clear to a reasonable recipient. + +15. Although I agree with the test laid down in the Carradine case and approved by the Mennai case, I do not think that these cases and the test help the Applicant. First of all, even according to the Applicant’s case, there is no clerical mistake in the present case. The Applicant is not saying that the date should read 8 May 2006 instead of 8 May 2005. The Applicant only stated the contractual expiry date of the Tenancy in the TTN, so no effective date of the notice was ever stated in the TTN. By reading the date “8 May 2005” in the TTN, no reasonable recipient would know when the Tenancy is going to be terminated. There cannot be such an interpretation that the Tenancy must end on 8 May 2006, as a landlord can give a notice that is more than 12 months. + +16. The Applicant also submits that I should consider some of the telephone conversations and representations made between the parties, as these events are indicative of the parties’ comprehension of the situation. These factual matters are in dispute by the parties. However, I do not find that these factual disputes are relevant to the issue of the validity of the TTN. The Ordinance requires a valid notice to be issued and it is my finding that the notice must state or indicate the effective date of the termination. As there is no such date given or indicated, no valid notice has been given. When there is no valid notice given, the Tenancy is not terminated and the Applicant cannot recover possession. That should be the end of the matter. I need not deal with these factual disputes at all. + +17. In the circumstances, it is my finding that the TTN is not a valid notice. + +Conclusion +18. By reasons aforesaid, the Applicant’s claim must fail and I order as follows:- + +The Applicant’s application herein be dismissed. + +Costs order nisi: The Applicant do pay costs of the application to the Respondent, to be taxed on District Court Scale if not agreed. If there is no application for costs within the next 14 days, the costs order nisi herein shall become absolute. + + + + +Deputy Judge WONG + Presiding Officer +Lands Tribunal + +Mr. Martin WONG, instructed by M/S Tang & So, for the Applicant. +Mr. Dennis CHAN, of M/S Gallant Y.T. Ho & Co., for the Respondent. \ No newline at end of file diff --git a/en_cases_hkldt/2006_HKLDT_29/case.json b/en_cases_hkldt/2006_HKLDT_29/case.json new file mode 100644 index 0000000..7315fe6 --- /dev/null +++ b/en_cases_hkldt/2006_HKLDT_29/case.json @@ -0,0 +1,32 @@ +{ + "Date": "4 Oct, 2006", + "Action No.": "LDPD1477/2006", + "Neutral Cit.": "[2006] HKLDT 29", + "case_title": "SOUND VIEW ENTERPRISES LTD V. CHAN KAI LUNG LERRY", + "page_title": "SOUND VIEW ENTERPRISES LTD V. CHAN KAI LUNG LERRY | [2006] HKLDT 29 | HKLII", + "case_history": [ + { + "name": "LDPD1477/2006", + "link": "https://www.hklii.hk/en/appealhistory/LDPD/2006/1477" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkldt/2006/29", + "neutral_cit": "[2006] HKLDT 29", + "court_code": "HKLDT", + "content": "LDPD 1477/2006\nIN THE LANDS TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nApplication No. LDPD 1477 of 2006\n________________\nBETWEEN\nSOUND VIEW ENTERPRISES LIMITED\nApplicant\nand\nCHAN KAI LUNG LERRY\nRespondent\n________________\nBefore:   Deputy Judge WONG, Presiding Officer, Lands Tribunal\nDate of Hearing:  12 September 2006\nDate of Handing Down of Judgment:   4 October 2006\n________________\nCORRIGENDUM\n________________\nPlease note the following amendments in the Judgment handed down on 4 October 2006:\nOn page 6 at paragraph 14:\n1\nst\nline – “\nMennai\n” should be “\nMannai\n”\n3\nrd\nline – “\nMennai\n” should be “\nMannai\n”\nOn page 6 at paragraph 15:\n2\nnd\nline – “\nMennai\n” should be “\nMannai\n”\nDated this 31\nst\nday of January 2007.\n(Carmen Leung)\nClerk to Deputy Judge WONG", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2006/LDPD001477_2006.doc", + "file_name": "LDPD001477_2006.doc", + "file_ext": ".doc", + "status": "success" + }, + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2006/LDPD001477M_2006.doc", + "file_name": "LDPD001477M_2006.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkldt/2008_HKLdT_130/LDRA000536_1999_abp_fallback.txt b/en_cases_hkldt/2008_HKLdT_130/LDRA000536_1999_abp_fallback.txt new file mode 100644 index 0000000..12f5ed9 --- /dev/null +++ b/en_cases_hkldt/2008_HKLdT_130/LDRA000536_1999_abp_fallback.txt @@ -0,0 +1,9 @@ + LDRA536/1999 & 48 others IN THE LANDS TRIBUNAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION RULES 4, 14 AND 20 OF THE LANDS TRIBUNAL RULES APPLICATION NO. LDRA 536-540 OF 1999, LDRA 542-543 OF 1999, LDRA 504-508 OF 2001, LDRA 363-367 OF 2002, LDRA 819-823 OF 2003, LDRA 365-369 OF 2004, LDRA 466-470 OF 2005, LDRA 130-134 OF 2006, LDRA 114-118 OF 2007, LDGA 21 OF 2001, LDGA 767 OF 2002, LDGA 618 OF 2003, LDGA 241 OF 2004, LDGA 173 OF 2005, LDGA 153 OF 2006, LDGA 112 OF 2007 (Heard together) _______________ BETWEEN CLP POWER HONG KONG LIMITED Applicant and COMMISSIONER OF RATING AND VALUATION Respondent _______________ Before: Hon Lam J, President of the Lands Tribunal, in Chambers Date of Hearing: 3 December 2008 Date of Judgment: 3 December 2008 _______________ J U D G M E N T _______________ + This is an application for a review of my decision on 3 November this year concerning various appeals, in particular whether they should be consolidated and be heard together or whether there should be a single appeal being allowed to be proceeded and treated as a test appeal. In my decision on 3 November I decided that as a matter of case management, having considered various factors which I have mentioned in my judgment given on that day, there should be a single case chosen as a test appeal, with the other appeals continued to be stayed in the meantime pending the outcome of the test appeal. The applicant seeks to review that decision. Under the Lands Tribunal Ordinance, the Tribunal may review its decisions in accordance with section 11A of the Lands Tribunal Ordinance. Subsection (1) says the Tribunal may, within one month from the date of any decisions by it, decide to review their decisions, and on such grounds that it may think sufficient may set aside, reverse, vary or confirm it. Subsection (3) provides that: “If the Tribunal shall have decided within one month from the date of any decisions to exercise its power of review in respect thereof, such power may be exercised at any time thereafter, whether within such period of one month or otherwise.” In my judgment, the wording of section 11A makes it quite clear that a review process in the Lands Tribunal is a two stage process. First, the Tribunal has to ask the question whether there should be a review and make a decision on that. If the Tribunal decided that there should be a review, then the review will proceed. That will be the second stage. And at the second stage, as provided under section 11A(4), the Tribunal may hear and receive evidence it thinks fit for the purpose of determining the issues between the parties. +As far as the first stage is concerned, it is no less a decision by the Tribunal. In other words, on the question of whether there should be a review, it is quite clear from the wording of subsection (1) and (3) that the Tribunal has to make a decision and that decision has to be made within one month. Since the present application is made in respect of my decision on 3 November, time will expire today for me to decide whether there should be a review. Unfortunately this application for a review was made by the applicant quite late yesterday afternoon. There has been some confusion as to whether the respondent is entitled to be heard on this matter in regard to the first stage of the process. Mr Wilmot referred me to a decision of Judge Wong in the case of Good Trader Limited v Hinking Investment Limited in LDCS1000/2006, in which the presiding officer held that as far as the first stage is concerned it could be an ex-parte process, i.e. there is no requirement that the respondent be afforded an opportunity to be heard. With respect, I do not agree. A decision of the Tribunal, like any judicial decision, should - except in clearly established cases (like ex parte applications for injunctive or similar relief) or except when the wording of the statute clearly indicates to the contrary - should not be decided on ex parte basis. It is a fundamental precept of our legal system that no party shall be condemned unheard. So when there is a matter which requires judicial determination, prima facie everybody interested or every party to the application is entitled to be heard. One then turns to the wording of the statute to see whether there is anything by implication stemming from the statute which suggests that the statute authorised ex parte application as far as application for review is concerned. I appreciate a decision on whether there should be a review does not touch on the substantive merit as far the matters under review is concerned. In a way it is a procedural decision. But the fact that it is a procedural decision does not mean that by implication the other party is not entitled to be heard. The court has to decide on procedural matters as well as substantive matters. And it is a feature in our legal +system that even for procedural matters normally the court should not make a decision unless both parties are heard. In the Good Trader case Judge Wong in fact referred to another decision, an earlier decision by the Tribunal, which decided that a respondent is entitled to be heard on the first stage. This is the case of Solar Max Limited v Homex Investment Limited, LT358/1997. However, Judge Wong was persuaded otherwise in the light of the decision of Deputy High Court Judge Kwan, as she then was, in the case of Lee King Sin v Stikeman, Elliott, a Labour Tribunal case, HCLA83/2000. I am not concerned with the review procedures in the Labour Tribunal, but it seems to me that there are differences in the wording in the Labour Tribunal Ordinance and that in Section 11A. One must remember that a review will inevitably disrupt the smooth continuation of proceedings, especially if a review is sought in respect of case management decisions as regards how a matter should be proceeded. In my view, in this sort of situation there is no justification for depriving a respondent an opportunity to be heard as regards why there should not be a review. As Mr Man pointed out at today’s hearing, taking the present case as an example, since 3 November the respondent has been working on the assumption, or rather on the basis, that there will be a test appeal and expert reports were prepared accordingly. In other words, experts were instructed to deal with the matters on the basis that he is only concerned with one single appeal as opposed to appeal covering different years. I would not repeat what I said on the last occasion about the difference in terms of an expert report for several years or an appeal covering several years as opposed to a report on just one single year. I remain of the view that if the appeal is to be heard on the basis that it will deal with matters covering several years, it will be unduly complicated. This is because the state of the knowledge of the hypothetical tenant and the hypothetical landlord may vary in different years, and +therefore, as far as preparation of expert reports covering appeals on several years is concerned, the expert has to give evidence on the perspective of the hypothetical landlord and hypothetical tenant in respect of each of the years under appeal. I am not satisfied that this is a case where one can say that, “Well, the additional burden on the evidence would only be minimal just because of the inclusion of several years instead of just one year in the appeal.” And this illustrates why it is important that one should stick to the original decision on case management unless there is very cogent and overriding reason to suggest that one should re-examine the situation. And on these matters I think the respondent is entitled to be heard. Coming to the facts of the present case, the applicant pinpointed two new matters to suggest that as a result of those matters this court should re-examine the decisions on 3 November. The first point is about the possibility of a refund and the substantial amount being involved in the case of a refund. The argument is that because of what has been said by the expert in another appeal the applicant expects the same thing will be said in respect of these appeals involving the applicants. As a result of the increase in the WACC, the applicant said it is likely that there will be a refund. And if all these appeals of the applicant were heard together and decided at the same time, they can expect a refund at an earlier time, as compared with having a test appeal and the other appeals not to be dealt with in the meantime. That may be so, but I am not impressed that one should revisit the question of the decision on 3 November 2008 just because of this factor. This is particularly so in the light of the fact that the applicant has agreed to have all these appeals stayed for quite a considerable time already. Moreover, as soon as a decision is reached in a test appeal, and by then it is also likely that there will also be a decision handed down in respect of the HEC appeal, it is very likely that all the other appeals can be resolved in the light of what has been decided in the test appeal as well as the HEC appeal. +It is also likely that even if the other appeals have to be restored for argument there could be arrangement in the meantime for some partial refunds. In any event, I am told that there is a High Court action pending, namely High Court action 2290/2007, in which the applicant is making a restitution claim against the respondent with regard to amount to be refunded as far as the interest element is concerned. Therefore, if the applicant has a claim for any financial disadvantage as a result of rate being paid in advance pending the outcome of appeal, that can be ventilated in the High Court proceedings. The other new factor urged upon me to reconsider my decision is the new appeal by the applicant with regard to the Commissioner’s decision for the year of 2008. I am not going to speculate about the progress of that appeal. That may or may not be stayed pending the outcome of the test appeal. It may be that the parties would like to give some consideration to that after today. But I do not think the fact that there is another appeal by CLP should have any bearing at all about my case management decision with regard to the other appeal which has been stayed by consent, and the decision had been made by this court on 3 November that there should not be any lifting of those stays pending the outcome of the test appeal. I think it is important to bear in mind that it is desirable that matters are proceeded with and decisions can be made as early as possible. Unfortunately, as far as these appeals are concerned, they have been stayed, and matters have been allowed to be left hanging there for quite a substantial time already. But as far as the progress of the matters is concerned, this court has made the decisions on 3 November as to how the matters can be efficiently and effectively decided. It is a case management discretion of the Tribunal, bearing in mind the circumstances of the case, to decide that the test appeal procedure is the preferred option. If one were to re-examine that, as I have said previously, there has to be good and cogent reasons. I am afraid, having heard submissions from +Mr Wilmot and considering what he has said about the circumstances, I do not see any ground to revisit that decision. The other matters he set out in the skeleton submissions are basically points that have been raised in the hearing on 3 November. I would not go through them again. For example, he asked the court to consider the lifting of the stay in the HEC appeals, and he mentioned about perception of unfair treatment. With respect, I do not agree. As I said, the question of whether there should be a consolidated appeal in the HEC case is still an open question. In any event, as far as the practical side of the matter is concerned it really boils down to the question of the timing of the refund. And this is a point I have already dealt with. I therefore remain of the view that as far as the CLP appeals are concerned the way to proceed is to conduct a test appeal. Therefore I refuse any application for a review. (M H Lam) Judge of the Court of First Instance High Court Mr Richard Wilmot, instructed by Messrs Holman Fenwick Willan, for the Applicant Mr Bernard Man, instructed by the Department of Justice, for the Respondent + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/en_cases_hkldt/2008_HKLdT_130/case.json b/en_cases_hkldt/2008_HKLdT_130/case.json new file mode 100644 index 0000000..ee0cdb1 --- /dev/null +++ b/en_cases_hkldt/2008_HKLdT_130/case.json @@ -0,0 +1,26 @@ +{ + "Date": "3 Dec, 2008", + "Action No.": "LDGA153/2006", + "Neutral Cit.": "[2008] HKLdT 130", + "case_title": "CLP POWER HONG KONG LTD V. COMMISSIONER OF RATING AND VALUATION", + "page_title": "CLP POWER HONG KONG LTD V. COMMISSIONER OF RATING AND VALUATION | [2008] HKLdT 130 | HKLII", + "case_history": [ + { + "name": "LDGA153/2006", + "link": "https://www.hklii.hk/en/appealhistory/LDGA/2006/153" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkldt/2008/130", + "neutral_cit": "[2008] HKLdT 130", + "court_code": "HKLDT", + "content": "LDRA000536/1999 CLP POWER HONG KONG LTD v. COMMISSIONER OF RATING AND VALUATION\nLDRA536/1999 & 48 others\nIN THE LANDS TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nRULES 4, 14 AND 20 OF THE\nLANDS TRIBUNAL RULES\nAPPLICATION NO. LDRA 536-540 OF 1999, LDRA 542-543 OF 1999,\nLDRA 504-508 OF 2001, LDRA 363-367 OF 2002,\nLDRA 819-823 OF 2003, LDRA 365-369 OF 2004,\nLDRA 466-470 OF 2005, LDRA 130-134 OF 2006,\nLDRA 114-118 OF 2007, LDGA 21 OF 2001,\nLDGA 767 OF 2002, LDGA 618 OF 2003,\nLDGA 241 OF 2004, LDGA 173 OF 2005,\nLDGA 153 OF 2006, LDGA 112 OF 2007\n(Heard together)\n----------------------\nBETWEEN\nCLP POWER HONG KONG LIMITED\nApplicant\nand\nCOMMISSIONER OF RATING AND VALUATION\nRespondent\n----------------------\nBefore: Hon Lam J, President of the Lands Tribunal, in Chambers\nDate of Hearing: 3 December 2008\nDate of Judgment: 3 December 2008\n------------------------\nJ U D G M E N T\n----------------------\n1.\nThis is an application for a review of my decision on 3 November this year concerning various appeals, in particular whether they should be consolidated and be heard together or whether there should be a single appeal being allowed to be proceeded and treated as a test appeal.\n2.\nIn my decision on 3 November I decided that as a matter of case management, having considered various factors which I have mentioned in my judgment given on that day, there should be a single case chosen as a test appeal, with the other appeals continued to be stayed in the meantime pending the outcome of the test appeal.\n3.\nThe applicant seeks to review that decision. Under the\nLands Tribunal Ordinance\n, the Tribunal may review its decisions in accordance with\nsection 11A\nof the\nLands Tribunal Ordinance\n. Subsection (1) says the Tribunal may, within one month from the date of any decisions by it, decide to review their decisions, and on such grounds that it may think sufficient may set aside, reverse, vary or confirm it. Subsection (3) provides that:\n“If the Tribunal shall have decided within one month from the date of any decisions to exercise its power of review in respect thereof, such power may be exercised at any time thereafter, whether within such period of one month or otherwise.”\n4.\nIn my judgment, the wording of section 11A makes it quite clear that a review process in the Lands Tribunal is a two stage process. First, the Tribunal has to ask the question whether there should be a review and make a decision on that. If the Tribunal decided that there should be a review, then the review will proceed. That will be the second stage. And at the second stage, as provided under section 11A(4), the Tribunal may hear and receive evidence it thinks fit for the purpose of determining the issues between the parties.\n5.\nAs far as the first stage is concerned, it is no less a decision by the Tribunal. In other words, on the question of whether there should be a review, it is quite clear from the wording of subsection (1) and (3) that the Tribunal has to make a decision and that decision has to be made within one month. Since the present application is made in respect of my decision on 3 November, time will expire today for me to decide whether there should be a review. Unfortunately this application for a review was made by the applicant quite late yesterday afternoon.\n6.\nThere has been some confusion as to whether the respondent is entitled to be heard on this matter in regard to the first stage of the process. Mr Wilmot referred me to a decision of Judge Wong in the case of\nGood Trader Limited v Hinking Investment Limited\nin LDCS1000/2006, in which the presiding officer held that as far as the first stage is concerned it could be an ex-parte process, i.e. there is no requirement that the respondent be afforded an opportunity to be heard. With respect, I do not agree. A decision of the Tribunal, like any judicial decision, should - except in clearly established cases (like ex parte applications for injunctive or similar relief) or except when the wording of the statute clearly indicates to the contrary - should not be decided on ex parte basis. It is a fundamental precept of our legal system that no party shall be condemned unheard. So when there is a matter which requires judicial determination, prima facie everybody interested or every party to the application is entitled to be heard.\n7.\nOne then turns to the wording of the statute to see whether there is anything by implication stemming from the statute which suggests that the statute authorised ex parte application as far as application for review is concerned. I appreciate a decision on whether there should be a review does not touch on the substantive merit as far the matters under review is concerned. In a way it is a procedural decision. But the fact that it is a procedural decision does not mean that by implication the other party is not entitled to be heard. The court has to decide on procedural matters as well as substantive matters. And it is a feature in our legal system that even for procedural matters normally the court should not make a decision unless both parties are heard.\n8.\nIn the\nGood Trader\ncase Judge Wong in fact referred to another decision, an earlier decision by the Tribunal, which decided that a respondent is entitled to be heard on the first stage. This is the case of\nSolar Max Limited v Homex Investment Limited\n, LT358/1997. However, Judge Wong was persuaded otherwise in the light of the decision of Deputy High Court Judge Kwan, as she then was, in the case of\nLee King Sin v Stikeman, Elliott\n, a Labour Tribunal case, HCLA83/2000. I am not concerned with the review procedures in the Labour Tribunal, but it seems to me that there are differences in the wording in the\nLabour Tribunal Ordinance\nand that in Section 11A.\n9.\nOne must remember that a review will inevitably disrupt the smooth continuation of proceedings, especially if a review is sought in respect of case management decisions as regards how a matter should be proceeded. In my view, in this sort of situation there is no justification for depriving a respondent an opportunity to be heard as regards why there should not be a review. As Mr Man pointed out at today’s hearing, taking the present case as an example, since 3 November the respondent has been working on the assumption, or rather on the basis, that there will be a test appeal and expert reports were prepared accordingly. In other words, experts were instructed to deal with the matters on the basis that he is only concerned with one single appeal as opposed to appeal covering different years.\n10.\nI would not repeat what I said on the last occasion about the difference in terms of an expert report for several years or an appeal covering several years as opposed to a report on just one single year. I remain of the view that if the appeal is to be heard on the basis that it will deal with matters covering several years, it will be unduly complicated. This is because the state of the knowledge of the hypothetical tenant and the hypothetical landlord may vary in different years, and therefore, as far as preparation of expert reports covering appeals on several years is concerned, the expert has to give evidence on the perspective of the hypothetical landlord and hypothetical tenant in respect of each of the years under appeal. I am not satisfied that this is a case where one can say that, “Well, the additional burden on the evidence would only be minimal just because of the inclusion of several years instead of just one year in the appeal.” And this illustrates why it is important that one should stick to the original decision on case management unless there is very cogent and overriding reason to suggest that one should re-examine the situation. And on these matters I think the respondent is entitled to be heard.\n11.\nComing to the facts of the present case, the applicant pinpointed two new matters to suggest that as a result of those matters this court should re-examine the decisions on 3 November. The first point is about the possibility of a refund and the substantial amount being involved in the case of a refund. The argument is that because of what has been said by the expert in another appeal the applicant expects the same thing will be said in respect of these appeals involving the applicants. As a result of the increase in the WACC, the applicant said it is likely that there will be a refund. And if all these appeals of the applicant were heard together and decided at the same time, they can expect a refund at an earlier time, as compared with having a test appeal and the other appeals not to be dealt with in the meantime.\n12.\nThat may be so, but I am not impressed that one should revisit the question of the decision on 3 November 2008 just because of this factor. This is particularly so in the light of the fact that the applicant has agreed to have all these appeals stayed for quite a considerable time already. Moreover, as soon as a decision is reached in a test appeal, and by then it is also likely that there will also be a decision handed down in respect of the HEC appeal, it is very likely that all the other appeals can be resolved in the light of what has been decided in the test appeal as well as the HEC appeal.\n13.\nIt is also likely that even if the other appeals have to be restored for argument there could be arrangement in the meantime for some partial refunds. In any event, I am told that there is a High Court action pending, namely High Court action 2290/2007, in which the applicant is making a restitution claim against the respondent with regard to amount to be refunded as far as the interest element is concerned. Therefore, if the applicant has a claim for any financial disadvantage as a result of rate being paid in advance pending the outcome of appeal, that can be ventilated in the High Court proceedings.\n14.\nThe other new factor urged upon me to reconsider my decision is the new appeal by the applicant with regard to the Commissioner’s decision for the year of 2008. I am not going to speculate about the progress of that appeal. That may or may not be stayed pending the outcome of the test appeal. It may be that the parties would like to give some consideration to that after today. But I do not think the fact that there is another appeal by CLP should have any bearing at all about my case management decision with regard to the other appeal which has been stayed by consent, and the decision had been made by this court on 3 November that there should not be any lifting of those stays pending the outcome of the test appeal.\n15.\nI think it is important to bear in mind that it is desirable that matters are proceeded with and decisions can be made as early as possible. Unfortunately, as far as these appeals are concerned, they have been stayed, and matters have been allowed to be left hanging there for quite a substantial time already. But as far as the progress of the matters is concerned, this court has made the decisions on 3 November as to how the matters can be efficiently and effectively decided. It is a case management discretion of the Tribunal, bearing in mind the circumstances of the case, to decide that the test appeal procedure is the preferred option. If one were to re-examine that, as I have said previously, there has to be good and cogent reasons. I am afraid, having heard submissions from Mr Wilmot and considering what he has said about the circumstances, I do not see any ground to revisit that decision.\n16.\nThe other matters he set out in the skeleton submissions are basically points that have been raised in the hearing on 3 November. I would not go through them again. For example, he asked the court to consider the lifting of the stay in the HEC appeals, and he mentioned about perception of unfair treatment. With respect, I do not agree. As I said, the question of whether there should be a consolidated appeal in the HEC case is still an open question. In any event, as far as the practical side of the matter is concerned it really boils down to the question of the timing of the refund. And this is a point I have already dealt with.\n17.\nI therefore remain of the view that as far as the CLP appeals are concerned the way to proceed is to conduct a test appeal. Therefore I refuse any application for a review.\n(M H Lam)\nJudge of the Court of First Instance\nHigh Court\nMr Richard Wilmot, instructed by Messrs Holman Fenwick Willan, for the Applicant\nMr Bernard Man, instructed by the Department of Justice, for the Respondent", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/1999/LDRA000536_1999.doc", + "file_name": "LDRA000536_1999.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkldt/2009_HKLdT_5/case.json b/en_cases_hkldt/2009_HKLdT_5/case.json new file mode 100644 index 0000000..3364625 --- /dev/null +++ b/en_cases_hkldt/2009_HKLdT_5/case.json @@ -0,0 +1,26 @@ +{ + "Date": "22 Jan, 2009", + "Action No.": "LDBM375/2007", + "Neutral Cit.": "[2009] HKLdT 5", + "case_title": "THE INCORPORATED OWNERS OF JET FOIL MANSION V. YING KONG CO LTD", + "page_title": "THE INCORPORATED OWNERS OF JET FOIL MANSION V. YING KONG CO LTD | [2009] HKLdT 5 | HKLII", + "case_history": [ + { + "name": "LDBM375/2007", + "link": "https://www.hklii.hk/en/appealhistory/LDBM/2007/375" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkldt/2009/5", + "neutral_cit": "[2009] HKLdT 5", + "court_code": "HKLDT", + "content": "LDBM000371/2007 THE INCORPORATED OWNERS OF JET FOIL MANSION v. YING KONG CO LTD\nLDBM 371/2007\nIN THE LANDS TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nBUILDING MANAGEMENT APPLICATIONS\nNOS. 371, 372, 373, 374 AND 375 OF 2007\n____________\nBETWEEN\nTHE INCORPORATED OWNERS OF\nJET FOIL MANSION\nApplicant\nand\nYING KONG COMPANY LIMITED\nRespondent\n____________\nCoram: His Hon Judge Leung, Presiding Officer\nDate of hearing: 27 October 2008\nDate of decision: 22 January 2009\nDECISION\n1.\nJet Foil Mansion is a multi-storey building at 415-421 Jaffe Road, Wanchai, Hong Kong. The Respondent (\nYing Kong\n) was the developer and is the owner of various parts of the building. In 2007, the Applicant (\nthe IO\n) filed 5 separate claims in the Small Claims Tribunal against Ying Kong for management fees in arrears for the period between 2005 and 2007. Ying Kong contested and raised issues of construction of the deed of mutual covenants governing the building (\nDMC\n).\n2.\nThe small claims were transferred to become these 5 Applications in this Tribunal. On 13 October 2007, Messrs S K Lam, Alfred Chan & Co (\nSKLAC\n), solicitors, filed notice to act for the IO in these Applications. These Applications were consolidated.\n3.\nPleadings and witness statements have been filed and discovery has been carried out. But on 11 July 2008, Ying Kong took out a summons with a view to striking out these Applications.\n4.\nAt the last hearing on 15 October 2008, Ying Kong amended its summons. By the amended summons, Ying Kong asked for an order in the following terms:\n“1. The Applications be struck out for being abuse of process\nor stayed\non the grounds that:\n(a) The Applications were commenced and/or continued without proper authority of the Applicant; and/or\n(b) Messrs S K Lam, Alfred Chan & Co., Solicitors & Notaries, have no authority to act for and on behalf of the Applicant;\n1A. The notice of Messrs S K Lam, Alfred Chan & Co, Solicitors & Notaries dated 13\nth\nOctober 2007 be set aside;\n1B. Any other order which the Tribunal thinks fit on the further conduct of these Applications\n;\n2. Messrs S K Lam, Alfred Chan & Co., Solicitors & Notaries do pay the costs of and occasioned by these Applications personally on an indemnity basis.”\n(underlined as per the amendments)\n3. This was the hearing of the amended summons. During the hearing, Mr D Lam confirmed that Ying Kong no longer pursued the striking out for the alleged abuse of process.\n4. Essentially Ying Kong argued that the IO contracted SKLAC as their solicitors in these Applications in the absence of tender procedure as required under sections 20A(2) and (2B) of the Ordinance.\nThe Ordinance\n5.\nSection 20A reads as follows:\n“(1) The procurement of all supplies, goods or services required by a corporation in the exercise of its powers and the performance of its duties under the deed of mutual covenant (if any) or this Ordinance shall comply with such standards and guidelines as may be specified in a Code of Practice relating to such procurement.\n(2) Subject to subsection (2A), any supplies, goods or services referred to in subsection (1) the value of which exceeds or is likely to exceed-\n1. the sum of $200,000 or such sum in substitution therefor as the Authority may specify by notice in the Gazette; or\n2. a sum which is equivalent to 20% of the annual budget of the corporation or such other percentage in substitution therefor as the Authority may specify by notice in the Gazette,\nwhichever is the lesser, shall be procured by invitation to tender.\n(2A) Subsection (2) does not apply to any supplies, goods or services which but for this subsection would be required to be procured by a corporation by invitation to tender (referred to in this subsection as “relevant supplies, goods or services”) if-\n(a) the relevant supplies, goods or services are of the same type as any supplies, goods or services which are for the time being supplied to the corporation by a supplier; and\n(b) the corporation decides by a resolution of the owners passed at a general meeting of the corporation that the relevant supplies, goods or services shall be procured from that supplier on such terms and conditions as specified in the resolution, instead of by invitation to tender.\n(2B) Where any supplies, goods or services are required under subsection (2)(b) to be procured by invitation to tender, whether a tender submitted for the purpose is accepted or not shall be decided by a resolution of the owners passed at a general meeting of the corporation.\n(3) ……\n(4) ……\n(5) A contract for the procurement of any supplies, goods or services shall not be void by reason only that it does not comply with subsection (1).\n(6) Where any supplies, goods or services are required under subsection (2) to be procured by invitation to tender, a contract for the procurement of the supplies, goods or services which does not comply with subsection (2) or (2B)-\n(a) subject to any resolution passed by the corporation under paragraph (b) or any order made by the court under subsection (7), shall not be void by reason only that it does not comply with subsection (2) or (2B);\n(b) subject to any order made by the court under subsection (7), may be avoided by the corporation but only for the reason that it does not comply with subsection (2) or (2B).\n(7) In any legal proceedings in relation to a contract for the procurement of any supplies, goods or services to which subsection (2) or (2B) applies, the court may make such orders (including whether the contract is void or voidable) and give directions in respect of the rights and obligations of the contractual parties as the court thinks fit having regard to all the circumstances of the case, including (but not limited to) the following factors-\n(a) whether the supplies, goods or services have been procured by invitation to tender;\n(b) whether a general meeting of the corporation has been convened to consider the procurement of the supplies, goods or services;\n(c) whether the Code of Practice referred to in subsection (1) has been complied with;\n(d) whether the contract has been split, for the sole purpose of avoiding the compliance of the requirements in subsection (2) or (2B), from a contract which should have been made for the procurement of supplies, goods or services of a greater value;\n(e) whether the supplies, goods or services were urgently required;\n(f) the progress of any activities or works in relation to the supplies, goods or services;\n(g) whether the owners have benefited from the contract;\n(h) whether the owners have incurred any financial loss due to the contract and the extent thereof;\n(i) whether the supplier of the supplies, goods or services under the contract has acted in good faith;\n(j) whether the supplier of the supplies, goods or services under the contract has benefited from the contract; and\n(k) whether the supplier of the supplies, goods or services under the contract has incurred any financial loss due to the contract and the extent thereof.\n(8) For the purposes of subsection (7), where the court makes an order that the contract is voidable at the instance of the corporation, it shall also make an order that a general meeting of the corporation be convened and held in such manner as the court thinks fit, so as to decide whether the contract is to be avoided.\n(9) ……”\nWhether section 20A was breached\n6.\nThese 5 claims for outstanding management fees over the same period of time, though in respect of different parts of the building owned by Ying Kong, should properly be pursued as one claim. Obviously, the total amount being claimed would exceed the jurisdiction of the Small Claims Tribunal. According to the affirmations filed on its behalf, the IO had consulted the manager and solicitors before these claims were filed.\n7.\nI can understand that exposure to legal costs may be minimised by filing the claims in the Small Claims Tribunal where no legal representation is allowed. I am however curious how legal advice would have prompted or endorsed this to be done in view of the nature of these claims.\n8.\nThe question raised is whether tender procedure was necessary. The relevant time must be when the IO decided to contract SKLAC as its solicitors on record in these Applications in about October 2007. This requires an assessment of whether at that time, the costs incurred or to be incurred exceeded or was likely to exceed HK$200,000 or 20% of the annual budget of the IO, whichever is the lesser. Parties effectively expected this Tribunal to make this finding on the basis of the affidavit evidence.\n9.\nThe IO produced the amounts of the annual budgets of 2007 and 2008. The former was HK$593,084 and the latter was HK$489,579.70. 20% of the 2007 budget would be HK$118,616.80. When SKLAC was contracted, were the costs to be incurred likely to exceed this amount (not to mention the lesser amount if the 2008 budget was applied)?\n10.\nAccording to the IO, after the small claims had been transferred to this Tribunal, the owners had discussion in owners’ meetings before retaining SKLAC to conduct these proceedings on its behalf. The IO resolved to retain counsel only on 1 February 2008.\n11.\nThe IO however provided no minutes or details of the relevant owners’ meetings. But it suggested that SKLAC and the manager had at one stage advised that tender procedure was not really necessary.\n12.\nThe IO relied on what happened afterwards, saying that up to March 2008, it had paid legal fees in the sum of HK$57,996 to SKLAC. According to the minutes of the owners’ meeting on 18 March 2008, the payment was made in that very same month. For the purpose of determining the amount of the owners’ contributions towards funding the litigation, the estimated fees of solicitors and counsel were also provided in that meeting. Apart from counsel’s fee, SKLAC estimated its fees to range between HK$60,000 and HK$100,000. As Mr D Lam observed, it is unclear whether this range included the HK$57,996 already paid.\n13.\nAccording to the IO, SKLAC advised that up to the filing of witness statement (in May 2008), the legal fees were about HK$70,000. Again it is unclear whether this amount already included the sum of HK$57,996 already paid.\n14.\nThe IO also suggested the possibility of mediation under the pilot scheme that could help keeping the costs low. But it did not suggest how likely the dispute was to be resolved that way. The fact was that Ying Kong put its solicitors on record in August 2007 soon after the transfer.\n15.\nIn the 18 March 2008 meeting, apart from its fees, SKLAC also estimated counsel’s fee to range from HK$100,000 to HK$180,000. It was therefore resolved to call upon the owners to contribute a total sum of HK$283,500 to fund the litigation. The IO however suggested that this was called for merely out of prudence and the IO had no intention of utilising the entire amount. In my view, the range of fees of solicitors and counsel must be what SKLAC estimated and advised the IO to expect in the conduct of this litigation.\n16.\nMr K Lam argued that even assuming that the IO might be caught by section 20A(2), it was saved by section 20A(2A). The reason was that SKLAC were simply contracted to provide the same type of service as those SKLAC were at that time already supplying to the IO. I doubt whether this is correct and counsel also did not suggest any authority on what amounts to the same type of services for the purpose of section 20A(2A)(a).\n17.\nHowever, whether I am right about section 20A(2A)(a) or not, section 20A(2A)(b) specifies the additional requirement that the corporation has to decide by an owners’ resolution passed at a general meeting that such services shall be procured from the same supplier on such terms and conditions as specified in the resolution, instead of by invitation to tender. There was simply no such resolution for the purpose of contracting SKLAC to act for the IO in these Applications.\n18.\nThe IO also suggested that they did tender for the service of solicitors and barristers. The invitation was said to have been sent before the 18 March 2008 meeting, but apparently after SKLAC had already been contracted. Indeed the quotation from one firm was dated 31 March 2008 and a quotation from one counsel was dated as late as May 2008 and addressed to SKLAC. I fail to see the relevance of such evidence.\n19.\nWith the materials in hands, I see the basis for Ying Kong’s suspicion that the legal costs at the relevant time was likely to exceed 20% of the 2007 budget.\n20.\nHowever, as much as I doubt whether I have sufficient to make a finding on the basis of the affidavit evidence, I doubt whether it is necessary. I shall explain below even assuming that section 20A(2) applied but was not complied with.\nEffect of non-compliance\n21.\nMr D Lam for Ying Kong relied on the court of appeal decision in\nWong Tak Keung Stanley v The Management Committee of the Incorporated Owners of Grenville House\n, CACV 244/2003, 17 December 2003, and submitted that compliance with section 20A(2) is mandatory and a statutory duty on the part of the IO.\n22.\nYet as to the effect of non-compliance, the court of appeal in\nThe Incorporated Owners of Hip Wo House v Gallant King Development Limited\n, CACV 429/2006, 30 May 2007, said that it was more probable than not that such non-compliance would render the contract voidable rather than void. In other words, it would be open to the owners to elect to affirm the contract notwithstanding the absence of tender procedure. The contract remains valid until it is set aside.\n23.\nBoth the\nWong Tak Keung Stanley\ncase and the\nHip Wo House\ncase were dated prior to the commencement of effect of the various amendments of section 20A in August 2007, which apply to the present case.\n24.\nThe current subsection (5) made clear that a contract shall not be void by reason only that it does not comply with subsection (1). The current subsection (6) made clear that a contract shall not be void by reason only that it does not comply with subsection (2) or (2B), unless the owners resolve at a general meeting to avoid it for that reason or the court orders otherwise under subsection (7).\n25.\nUnder subsection (7), the court retains the discretion to still order whether the contract is void or voidable. The court is expressly required to have regard to all the circumstances of the case including but not limited to the factors listed thereunder. Both parties drew my attention to various particular circumstances of the present case with reference to some of those factors. But after considering these circumstances, it is clear to me that the contract between the IO and SKLAC could not be void. The contract could at most be voidable. On this basis, I consider each part of the present application.\nWhether the Applications\nwere\ncommenced and/or continued without proper authority of the Applicant\n26.\nThese Applications originated from the claims filed with the Small Claims Tribunal. As no legal representation was allowed in the Small Claims Tribunal, there was strictly no issue of the authority of SKLAC to act for the IO in filing the claims in the first place.\n27.\nBut whether these proceedings were “commenced” only upon the Notice of Application being filed after the claims had been transferred to this Tribunal, there is up to this moment no question as to the authority of SKLAC to act for the IO. It cannot be said that these Applications\nwere\ncommenced or continued without proper authority of the IO.\n28.\nThe application for stay on the ground set out in paragraph 1(a) of the amended summons fails.\nWhether SKLAC\nhave\nno authority to act for and on behalf of the IO\n29.\nFor the above reasons, it cannot be said that SKLAC\nhave\nno authority to act for and on behalf of the IO. SKLAC had and still have such authority unless and until the IO chooses to revoke it by avoiding their contract.\n30.\nThe application for stay on the ground set out in paragraph 1(b) the amended summons also fails.\nWhether the notice to act should be set aside\n31.\nIt follows from above that in the absence of avoidance of their contract and revocation of SKLAC’s authority to act by the IO, the notice of SKLAC to act for the IO was and still is perfectly valid. There is no basis for setting it aside at this moment. This part of the application fails too.\nSKLAC to bear costs personally\n32.\nThere is no basis for the order that SKLAC be personally liable for the costs of and occasioned by these Applications on an indemnity basis. Paragraph 2 of the amended summons fails.\nAny other order for the further conduct of these Applications\n33.\nYing Kong introduced paragraph 1B by the amendment to the original summons clearly with sections 20A(7) and (8) in mind as a fall back. Mr D Lam submitted that if I am satisfied that the contract between the IO and SKLAC is voidable, I shall make such order under subsection (7) and also order that the IO should convene and hold a general meeting so as to decide whether the contract is to be avoided under subsection (8). Pending that, the proceedings in these Applications should nevertheless be stayed.\n34.\nSection 20A(7) confers on the court the discretion to make order on the binding effect of the contract between the corporation and its contracting party and to make directions on their respective rights and obligations in any legal proceedings in relation to the contract in question.\n35.\nI do not agree that these Applications or the present application by Ying Kong fall within the context of section 20(2A)(7).\n36.\nIt might have been different if the IO had sued Ying Kong as an owner for his contribution towards such fees payable to SKLAC. Ying Kong could have raised the same issue as his defence. Alternatively, Ying Kong as an owner might have been in a position to initiate separate legal proceedings against the IO with a view to avoiding the contract between the IO and its solicitors.\n37.\nI can also understand that if Ying Kong as the Respondent is ordered to pay any costs of the IO in these Applications, Ying Kong may take the same issue and argue that on the basis of the indemnity principle, it is not liable to pay such costs that the IO should not itself be liable to pay under the problematic contract with SKLAC. Mr K Lam provided an example of that –\nSpeedy Gainer Limited v The Incorporated Owners of Malahon Apartments\n, CACV No. 336 of 2004, 9/10/2006.\n38.\nMy conclusion is that section 20A(2A)(7) cannot be the fall back of Ying Kong upon its failure to ask for stay of proceedings under paragraph 1 of the amended summons. Paragraph 1B of the amended summons therefore fails too.\nCosts\n39.\nNotwithstanding the amendment to the summons, Ying Kong fails on all fronts in this application. Ying Kong’s amended summons is dismissed with costs to the IO. Costs shall be taxed on the District Court scale, if not agreed, with certificate for counsel. In the absence of any appointment within 14 days to argue costs, this costs order shall become absolute.\nSimon Leung\nDistrict Judge\nPresiding Officer\nRepresentation:\nMr Kenneth Lam instructed by Messrs S K Lam, Alfred Chan & Co for the Applicant\nMr Douglas Lam instructed by Messrs Raymond Tong & Co for the Respondent", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2007/LDBM000371_2007.doc", + "file_name": "LDBM000371_2007.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkmagc/2005_HKMagC_2/case.json b/en_cases_hkmagc/2005_HKMagC_2/case.json new file mode 100644 index 0000000..2e012a9 --- /dev/null +++ b/en_cases_hkmagc/2005_HKMagC_2/case.json @@ -0,0 +1,26 @@ +{ + "Date": "7 Nov, 2005", + "Action No.": "TMCC1268/2005", + "Neutral Cit.": "[2005] HKMagC 2", + "case_title": "HKSAR V. CHAN NAI MING", + "page_title": "HKSAR V. CHAN NAI MING | [2005] HKMagC 2 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "TMCC1268/2005", + "link": "https://www.hklii.hk/en/appealhistory/TMCC/2005/1268" + } + ], + "case_url": "https://www.hklii.hk/en/cases/hkmagc/2005/2", + "neutral_cit": "[2005] HKMagC 2", + "court_code": "HKMAGC", + "content": "TMCC001268A/2005 HKSAR v. CHAN NAI MING\nTMCC 1268/2005\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nIN THE MAGISTRATES' COURT AT TUEN MUN\nHKSAR\nv\nCHAN NAI MING\nBefore: Colin Mackintosh, Magistrate\nSentence: 7th November 2005\n_________________________________\nREASONS FOR SENTENCE\n_________________________________\n1.\nI must say this first of all: that Hong Kong carefully guards intellectual property rights. These rights are not illusory, they are not something which exists only in theory and not in practice. They are real, they are valuable and they amount to genuine property. And the owners of those rights are entitled to the same level of protection from dishonest appropriation as the owners of ordinary, more tangible property. What is created by or on behalf of the owners of copyright is theirs to deal with and dispose of as they choose. It is not up to others to dictate how they should do so or at what price. It is not open to others to make moral judgments about the price of a book or a DVD or a music CD, and claim that it is excessive, as some form of justification for infringing the copyright. The law does not accord any validity to such attempts to justify copyright piracy.\n2.\nThe practical application of this principle, when the courts are dealing with persons who criminally infringe copyright, is to apply a firm, deterrent based sentencing policy. This is nothing new. There are many decided cases of higher courts which have, time after time, affirmed this approach. In particular, in 1999, in a case called\nChoi Sai-lok\n, the Court of Appeal approved the comments of a judge in an earlier case when he said, “The victims are the proprietors of the intellectual property whose rights are being violated. There is international pressure upon Hong Kong to stamp out traffic in pirated goods. Failure to attack th[is] illegal activity … would be perceived as a default on the part of the government on its international obligations.”\n3.\nThis provided the foundation for the approach of the Court of Appeal in\nChoi Sai-lok\nbecause it went on to say, “We emphasise that custodial sentences of immediate effect [i.e. not suspended sentences] should be imposed for offences of this kind unless the circumstances can be said to be truly exceptional … The open flouting of the law in this trade requires sentences, even for first offenders, to act as a deterrent to others.”\n4.\nThe result of these cases, and the many decisions made thereafter, is that immediate sentences of imprisonment of 6 to 12 months are generally imposed on offenders who trade in infringing copies, particularly those who sell infringing CDs or DVDs which have been manufactured on a commercial scale. The exact sentence will depend on the scale and circumstances of the offence and the age and circumstances of the offender.\n5.\nIt is to be emphasised that the courts were there dealing with those who make money out of infringing copies. There is no evidence in this case of any monetary or other commercial gain and in that sense, there is a distinction to be drawn.\n6.\nThe bulk of the cases concerning the commercial distribution of infringing discs relate to\nsection 118\n(1)(d) of the\nCopyright Ordinance\n,\nCap. 528\n. The convictions of this defendant fall under section 118(1)(f) of the Ordinance and are expressly defined, by virtue of that sub-paragraph, to be offences committed “otherwise than for the purpose of, in the course of, or in connection with, any trade or business”.\n7.\nThus the criminal conduct of the defendant was non-commercial. There was no element of trade or business in it. It was the attempted distribution of infringing copies of copyright works with out any element of personal financial gain but to an extent where the owners of the copyright were prejudiced.\n8.\nIt is appropriate to summarise the relevant acts of the defendant. I do not intend to repeat the description given in my reasons the verdict of the BitTorrent system. It is by now well known as a means by which large digital files, such as films, can be quickly, efficiently and widely distributed from one computer to many others by means of “packet switching”. In relation to each of the three films which are the subject of the three charges, the defendant was the seeder. He loaded the films into his computer using genuine, non-infringing DVDs. That act created a copy on the computer which was an infringing copy. From the digital file, in which each film was stored, the defendant created\n.torrent\nfiles, along with images of the inlay cards, imprinted with his logo, a statuette; he then published the existence of the\n.torrent\nfiles and the names of the films on a BitTorrent newsgroup to which anyone with a computer linked to the Internet could gain access. The purpose of that was to tell others interested in obtaining the film where they could go to download it using BitTorrent system. The defendant activated his\n.torrent\nfiles and maintained his connection to the internet: he retained control of the seeder computer at all times. If the defendant had not maintained his Internet connection, others would not have been able to connect through the appropriate tracker-server to download the films. I emphasise that the defendant was the original uploader, he was not a downloader.\n9.\nIn each of these cases, during the course of the investigation, 35 to 40 users commenced downloading. Some, including the customs officer monitoring the activities, obtained complete copies of the films through the BitTorrent system.\n10.\nThis was, as I have found, at least an attempted distribution of the infringing copies to such an extent as to affect prejudicially the owners of the copyright. It was done in a public, open forum where anyone with the appropriate equipment could download. It is proper to infer that some copies of films obtained by downloaders in this manner would themselves be downloaded to others. The potential for prejudice to the copyright owners by this latent risk of re-distribution, beyond those who initially take the seeded film, is extensive.\n11.\nIt is to be noted, in that context, that while this is a non-commercial distribution, the offence created by this sub-paragraph of the sub-section is bracketed together with the commercial offences in the other sub-paragraphs and it carries exactly the same maximum sentence. The legislation draws no distinction in gravity between these different offences involving the misuse of infringing copies: commercial or non-commercial activities render an offender liable to a maximum of four years’ imprisonment. This can only be because the gravity of the offences is measured by the harm caused to the victim rather than by the gain made by the offender.\n12.\nIn my judgment, the absence of commercial motives is of limited significance in assessing the seriousness of the offence and the appropriate penalty.\n13.\nIt might be said that the films the subject of these charges were not recent releases; they were not current blockbusters and may never have fallen into that category. But that is a value judgment which is which it is not open to me to make. It is not for a court to assess the quality of the material in question. It might in some circumstances be an aggravation where a newly released film is quickly pirated and distributed using BitTorrent. However, the present films could be purchased at a DVD shop and this aggravation is not present. But neither is it mitigation.\n14.\nBitTorrent is a relatively new system of distribution. The potential for its growth and development is obviously vast. In my judgment, it would be entirely wrong for the firm approach of the Hong Kong courts, which I have earlier described, to be diluted. Such a course would substantially undermine the protection against copyright piracy which is afforded by the law.\n15.\nI turn to the circumstances of this case which involves the attempted distribution of three films to the prejudice of the copyright owners. I note the following:\n(a) The defendant and those with whom he associated through the BitTorrent newsgroup, were fully aware of the criminality of uploading films through BitTorrent. One only has to look at the e-mails sent out by the defendant under his pseudonym, Big Crook, to see that on the 30th December 2004, nearly 2 weeks before the present offences, he was referring to others who were suspected of using BitTorrent to download being used to assist Customs investigators. There are e-mail references to customs regarding the defendant as a “target person” who should go into hiding.\nThese e-mails, and others, show that this was not a group innocently or naively sharing copyright materials amongst themselves without realising the potential for criminal proceedings. They knew. The defendant knew. Yet he carried on to seed the films the subject of the charges, distributing them to anyone who cared to look for them.\n(b) At the same time, it must be recognised that there have been no previous criminal prosecutions of BitTorrent offences in Hong Kong, and perhaps none anywhere else in the world. There is not therefore a body of public knowledge in Hong Kong that the use of BitTorrent in this manner will result in deterrent sentences being imposed in the same way as for commercial distribution of infringing copies\n(c) For the reasons to which I have already alluded, the distinction between the manufacturer or distributor of infringing discs and the BitTorrent seeder is not great. The use of the Internet to distribute infringing copies is insidious. It is unseen, difficult to detect and virtually impossible to prevent in a free society. An illicit factory or warehouse can be closed. Infringing DVDs can be destroyed. The Internet cannot be shut down: its very essence is the free distribution of material. But that does not mean that it cannot be used for unlawful or criminal purposes. And its use in that regard is difficult to control save by deterrence.\n(d) The message has to be sent out by courts that the distribution of infringing copies, to the prejudice of copyright owners, particularly by seeding films onto the Internet, will not be treated leniently. I treat the figures for BitTorrent distribution, given to me in court, with great caution: they appear to be estimates and I have not been provided with the basis for their calculation. I place no weight on them. But it is nevertheless obvious that the potential for damage to the film industry is huge. It would be irresponsible of the courts not to recognise that. If those contemplating the seeding of films on to the Internet by BitTorrent think that they will be able to get away with no more than a slap on the wrist, the resulting harm to the enforcement of copyright would be substantial and far reaching.\n(e) This defendant is to be treated as a man of clear record. Despite the handle which he rather flippantly adopted, he is not a bad man, he is not a big crook. He is an ordinary family man with the usual family responsibilities who has used his undoubted knowledge of the Internet, and the time he had available when he was unemployed, for illicit purposes. He is now gainfully employed and providing for his family. I am not surprised that he has been assessed as suitable for community service.\n(f) The defendant does not have the mitigation plea of guilty. It is no aggravation that he fought the case and it is to be noted that he admitted a substantial amount of factual material which would otherwise have been cumbersome to prove.\n(g) I agree that some account should be taken of the fact that this is the first prosecution of its type. But I am bound to say that I do not see great differences in terms of harm to copyright owners between this sort of conduct and the distribution of infringing discs. Neither is there any distinction to be drawn from the fact that these were attempts rather than completed offences.\n16.\nThese then are the factors to which I have regard. I do not consider that this is a case which is suitable for community service despite the defendant’s own suitability. A sentence of imprisonment is imperative. There is no basis for suspending such a sentence. The fact that this is the first such conviction does not amount to the exceptional circumstances which would be required to justify such a suspension. Nevertheless, I do make some reduction in the term to reflect the fact that it is the first such conviction.\n17.\nI make the sentences concurrent on each charge. The sentence I impose is one of three months’ imprisonment.\n18.\nBut, let future offenders be warned: I cannot bind any court dealing with them; and they might expect greater terms to be imposed, perhaps not very different to those handed down to sellers of infringing discs.\n19.\nThe case to which I have referred are:\nSecretary for Justice v Choi Sai-lok,\n[1999] 4 HKC 334\nR v Ng Wai-chin,\nHCMA 1309/1996\nAppeal dismissed: see HCMA1221/2005 dated 12 December 2006", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2005/TMCC001268A_2005.doc", + "file_name": "TMCC001268A_2005.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkmagc/2014_HKMagC_13/case.json b/en_cases_hkmagc/2014_HKMagC_13/case.json new file mode 100644 index 0000000..a50fbf1 --- /dev/null +++ b/en_cases_hkmagc/2014_HKMagC_13/case.json @@ -0,0 +1,26 @@ +{ + "Date": "11 Jun, 2014", + "Action No.": "ESS39232/2013", + "Neutral Cit.": "[2014] HKMagC 13", + "case_title": "SECURITIES AND FUTURES COMMISSION V. C.L. MANAGEMENT SERVICES LTD AND ANOTHER", + "page_title": "SECURITIES AND FUTURES COMMISSION V. C.L. MANAGEMENT SERVICES LTD AND ANOTHER | [2014] HKMagC 13 | HKLII", + "case_history": [ + { + "name": "ESS39232/2013", + "link": "https://www.hklii.hk/en/appealhistory/ESS/2013/39232" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkmagc/2014/13", + "neutral_cit": "[2014] HKMagC 13", + "court_code": "HKMAGC", + "content": "ESS30671/2013 SECURITIES AND FUTURES COMMISSION v. C.L. MANAGEMENT SERVICES LTD AND ANOTHER\nESS30671/2013 SECURITIES AND FUTURES COMMISSION v. C.L. MANAGEMENT SERVICES LTD AND ANOTHER\nESS30671/2013 SECURITIES AND FUTURES COMMISSION v. C.L. MANAGEMENT SERVICES LTD AND ANOTHER\nESS 30671-30676/2013\nESS 39231-39232/2013\nIN THE EASTERN MAGISTRATES COURT OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCASE NO. ESS 30671-30676 OF 2013 AND ESS 39231-39232 OF 2013\n----------------------\nSecurities and Futures Commission\nv\nC.L. Management Services Limited\n1st Defendant\nAU Suet-ming, Clarea\n2nd Defendant\n----------------------\nCoram : Magistrate, June Cheung\nDates of hearing : 27-28 February, 3 March and 3 April 2014\nDate of verdict : 29 April 2014\nDate of statement of findings : 11 June 2014\n--------------------------------------------\nSTATEMENT OF FINDINGS\n--------------------------------------------\nIntroduction\nThe Summonses\n1.\nIn the present case, a total of 8 summonses have been laid against C.L. Management Services Limited (“D1”), a company registered in Hong Kong and Madam AU Suet-ming, Clarea (“D2”), being the sole shareholder and director of D1. The summonses are summarised as follows:\na.\nSummonses against D1\n(four summonses in total\n[1]\n):\n(I) ESS 30671/2013 and alternative summons ESS 39231/2013: It is alleged that D1, without reasonable excuse, has carried on a business in a regulated activity, namely, advising on corporate finance, in relation to a client company, 3 Wells Group holdings Limited (“\n3 Wells”\n) without licence\n[2]\n(ESS 30671/2013). Alternatively, it is alleged that D1 has held itself out to 3 Wells as carrying on a business in advising on corporate finance\n[3]\n(ESS 39231/2013);\n(II) ESS 30673/2013 and 30675/2013: it is alleged that D1 has respectively held itself out to another two client companies, UK Fur Limited (\n“UK Fur”)\nand New Bonus Holdings Limited (\n“New Bonus”)\nas carrying on a business in advising on corporate finance\n[4]\n.\nb.\nSummonses against D2\n(four Summonses in total\n[5]\n): It is alleged that D2, being an officer of D1, has aided, abetted, counselled, procured or induced D1 in committing the above offences under section 114 of the Ordinance, or these offences were committed with the consent or connivance of D2 or was attributable to her recklessness.\n[6]\n2.\nI convicted, after trial, D1 of three summonses, i.e. ESS 39231/2013,\n30673/2013 and 30675/2013 concerning the “holding- out” offences under section 114(1)(b) of the Ordinance and D2 of the three corresponding attributable offences under section 390 (summonses ESS 39232/2013, 30674/2013 and 30676/2013). Upon conviction, I imposed fines in a total sum of $900,000\n[7]\nand $600,000\n[8]\non D1 and D2 respectively. I also sentenced D2 to a total term of imprisonment for 6 months suspended for 18 months\n[9]\n. D1 and D2 now appeal against both their convictions and sentences.\nThe Issues\n3.\nThe main issues on the law raised at trial are:\nI. Whether the summonses against D1 are strict liability offences? and if so, what defence is available and the burden of proof?\nII. Whether the term “without reasonable excuse” under section 114(8) creates an element of the offence or a defence only?\nIII. Could D1 be liable for acts of Michael, being D2’s agent?\n4.\nWhile the issues on the evidence are:\nI. Was Michael acting on behalf of D2 within her actual and specific authority to give advice on corporate finance?\nII. Whether D1 was “carrying on” the business in advising on corporate finance in respect of its dealing with 3 Wells?\nIII. Whether D1 was “holding out” as carrying on such business in advising on corporate finance in respect of its dealings with the three clients concerned?\nIV. Could the defences, if any, be factually made out by D1/D2, i.e. 1) did D2 know the content of the agreements or 2) did D2 know what Michael was doing on her behalf?\nBackground\nThe Prosecution case\n5.\nThe facts of the case are largely undisputed. The prosecution case mainly relied on the evidence given by four prosecution witnesses. They were either the chairmen/senior officers of the 3 respective client companies. Mr Clement CHEUK, PW1,\n(“Cheuk”)\nwasthe Chairman, and Ms Phoebe Lee, PW2,\n(“Lee”)\nwas the Chief Financial Officer of 3 Wells. They were called to give evidence relating to 3 Wells. While Mr Pat WONG, PW3\n(“P Wong”\n), the Chairman of UK Fur and Mr WONG Kam-fai, PW4\n(“KF Wong”\n), the chairman of New Bonus gave evidence relating to UK Fur and New Bonus respectively. The Prosecution originally intended to call a Michael ANG\n(“Michael”\n), who was engaged by D2 as her agent at the material times responsible for dealing with the three respective client companies. However, after Michael was called and taking oath, he suddenly, on his own initiative, raised with court that he was unwilling to give evidence as he worried that what he said might incriminate himself. The Prosecution finally informed the court that they decided not to call Michael and would not rely on his evidence at all.\n[10]\n3 Wells\n6.\nRegarding 3 Wells, it is alleged by the Prosecution that, during the period between July 2011 and January 2012, D1 has carried on a business in advising on corporate finance for 3 Wells with a view to assisting the latter to be listed on the Growth Enterprise Market\n(“GEM”)\nBoard of the Stock Exchange of Hong Kong Limited\n(“SEHK”).\nBy signing a detailed and unequivocal “Professional Financial Consultation Services Agreement”\n(“3 Wells Agreement”\n), Exhibit P12, with 3 Wells around July/August 2011, which was procured by D2, D1 did assign and authorise a team of her staff headed by Michael ANG (“\nMichael”\n) to have meetings, both in Hong Kong office as well as factory located in Mainland, with senior officers of 3 Wells with a view to assessing their capability of being listed on the GEM Board. D2 and Michael, representing D1, also assisted 3 Wells to line up a professional team consisting of the right professionals, including lawyers, accountants and sponsors to substantially handle the listing matters.\n7.\nPursuant to the aforesaid 3 Wells Agreement, 3 Wells made two payments in the sum of HK$ 150,000 each to D1 on 31 August 2011\n[11]\nand 14 May 2012\n[12]\nrespectively.\n8.\nAround September/October 2012, upon request by Michael, representing D1, allegedly due to problems of “internal audit”, 3 Wells agreed to terminate the 3 Wells Agreement with D1. This was done by way of a letter drafted by Michael and finalised by Cheuk and Lee.\n[13]\nCheuk said that the agreement was terminated upon D1’s promise that a full refund of HK$300,000 would be made by D1 to 3 Wells. However, no refund was ever made by D1.\n9.\nIt is the prosecution case that what D1 has done amounted to carrying on a business in “advising on corporate finance”, or alternatively holding itself out to 3 Wells as doing so.\n[14]\nMoreover, D2, in her capacity as an officer of D1, did aid, abet, counsel, procure or induce the commission of the offence under section 114 by D1 or the offence was committed by D1 with her consent or connivance or was attributable to her recklessness.\n[15]\nUK Fur and New Bonus\n10.\nThe evidence given by P Wong and KF Wong was relatively brief. The prosecution said that the mere fact that a similar written Professional Financial Consultation Services Agreement had been signed between D1 and UK Fur\n(“UK Fur Agreement”)\nas well as between D1 and New Bonus (“\nNew Bonus Agreement”\n) respectively was sufficient to prove that D1 had held itself out to the above two companies as carrying on a business in advising on corporate finance.\n11.\nAs a matter of fact, by completing the UK Fur Agreement, UK Fur has paid a total sum of HKD $600,000 to D1 in four instalments during the period between 20 October 2010 and 30 June 2011. Additionally, pursuant to the UK Fur Agreement, upon submission of UK Fur’s listing application to SEHK, D1 was granted 14,400,000 option shares at the exercise price of HKD $ 0.26 per share on 1 August 2012 which was accepted by D2 on 2 August 2012.\n[16]\nWith respect to New Bonus, in pursuant to the New Bonus Agreement, a sum of HKD $ 170,000 was paid to D1 by New Bonus on 3 January 2011.\n12.\nThe prosecution said that all the summonses against D1 laid under section 114 of the Ordinance require prosecution to prove “without reasonable excuse” as an element of the offence and that the prosecution has succeeded in proving beyond reasonable doubt that D1 had at the material times, without reasonable excuse, held itself out to the UK Fur and New Bonus as carrying on a business in advising on corporate finance and D2, being an “officer” of D1, was liable attributably in all the commission of the offences.\nDefence case\n13.\nD2 elected to give evidence herself but called no defence witness. She basically said that although she had signed all the relevant written agreements with the respective clients, she was not aware of the actual content stated therein and had no intention at all to carry on or hold herself out to the respective clients as carrying on a business in advising on corporate finance. What she actually had done was offering to the client companies that she, with the assistance of Michael, could line up a team of suitable professionals and participate in the liaison work for the listing matters only. After signing the contracts and attended the first introductory meeting with the professionals for the respective clients, she basically did nothing and was not sure what Michael and his team was doing to the respective clients. The three written agreements in question\n[17]\nwere all prepared by Michael upon her instruction but she has not read through them before signing.\n14.\nDefence contended that first of all, what D1 and D2 have done in respect of 3 Wells did not amount to carrying on a business in advising on corporate finance. Additionally, neither was there any sufficient evidence to prove D1 had held itself out to the respective companies as carrying on a business in such an activity. D2 had no intention whatsoever in carrying on or holding herself out as carrying on a business in advising on corporate finance. The defence submitted that the prosecution was required to prove\nmens rea\nfor all the summonses against D1 and that the prosecution has failed to do so. Further, what D2 said in her evidence could amount to a reasonable excuse and the statuary defence had been made out factually. It was submitted by the defence that as the commission of offences by D1 could not be proved, D2 should not be liable for all the “attributable” offences under section 390 of the Ordinance.\nAnalysis\nDiscussion on the Law\n15.\nThere are quite a number of legal issues raised during the trial by both parties that I need to resolve before analysing the evidence.\nIssue I: Whether the summonses against D1 are strict liability offences?\nThe Five Alternatives\n16.\nThe question of whether the summonses against D1, in contravention of section 114 (1) and (8) of the Ordinance, created strict liabilities or offences with full intent is never an easy one. The principles and application of the same have been thoroughly discussed in\nHin Lin Yee v HKSAR\n(2010) 13 HKCFAR 142\nand subsequently\nKulemesin Yuriy & Tang Dock Wah v HKSAR,\nFACC 6 and 7 of 2012, now the landmark cases in this area of law decided by the Court of Final Appeal.\n17.\nHin Lin Yee\nhas helpfully set out, at paragraph 96, five possible alternatives which were subsequently reformulated, by addressing the possible alternative mental requirements relating to the consequences and not just the circumstances of the defendant’s conduct\n,\nin another decision of the Court of Final Appeal,\nKulemesin Yuriy & Tang Dock Wah v HKSAR,\nFACC 6 and 7 of 2012, unreported , at paragraph 83:\n(a) first, that the\nmens rea\npresumption persists and the prosecution must prove knowledge, intention or recklessness as to every element of the offence (“\nthe first alternative”\n);\n(b) second, that the prosecution need not set out to prove\nmens rea\n, but if there is evidence capable or raising a reasonable doubt that the defendant may have acted or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct were such that, if true, liability would not attach, he must be acquitted unless the prosecution proves beyond reasonable doubt the absence of such exculpatory belief or that there were no reasonable grounds for such belief (\n“the second alternative”\n);\n(c) third, that the presumption has been displaced so that the prosecution need not prove\nmens rea\nbut that the accused has a good defence if he can prove on the balance of probabilities that he acted or omitted to act in the honest and reasonable belief that the circumstances\nor\nlikely consequences of his conduct were such that, if true, he would not be guilty of the offence (\n“the third alternative”\n);\n(d) fourth, that the presumption has been displaced and that the accused is confined to relying on the statutory defences expressly provided for, the existence of such defences being inconsistent with the second and third alternatives mentioned above (\n“the fourth alternative”\n); and\n(e) fifth, that the presumption is displaced and the offence is one of absolute liability so that the prosecution succeeds if the prohibited act or omission is proved against the accused, regardless of his state of mind regarding the relevant elements of the offence in question (\n“the fifth alternative”\n).”\nShould “mens rea” be displaced?\n18.\nI have born in mind the principle stated by Ribeiro PJ in\nHin Lin Yee,\nat paragraph 41\n,\nthat “where the offence-creating provisions are silent or ambiguous as to the mental requirements, it is generally accepted that the starting-point is that the statute must be construed adopting the presumption that it is incumbent on the prosecution to prove\nmens rea\nin relation to each element of the offence”. As Lord Scarman emphasised that the presumption of\nmens rea\n“can be displaced only if this is clearly or by necessary implication the effect of the statute”.\n[18]\n19.\nTo summarise what Ribeiro PJ said in\nHin Lin Yee\n[19]\n, the considerations that are relevant to the proper statutory construction in respect of the issue of displacement of presumption of\nmens rea\ninclude:\n(a) The statutory language;\n(b) The nature and subject matter of the offence;\n(c) The legislative purpose.\nThe statutory language\n20.\nSection 114(1) and (8) provides that:\n“(1) Subject to subsections (2), (5) and (6), no person\nshall\n-\n(a) carry on a business in a regulated activity; or\n(b) hold himself out as carrying on a business in a regulated activity….\n(8) A person who,\nwithout reasonable excuse\n, contravenes subsection (1) commits an offence and is liable-\n(a) on conviction on indictment to a fine of $5,000,000 and to imprisonment for 7 years and, in the case of a continuing offence, to a further fine of $100,000 for every day during which the offence continues; or\n(b) on summary conviction to a fine of $500,000 and to imprisonment for 2 years and, in the case of a continuing offence, to a further fine of $10,000 for every day during which the offence continues.” [\nmy emphasis\n]\n21.\nReading through section 114(1), I cannot see there are words or text stated therein which can be construed as carrying a connotation of knowledge or intention. For example, the common words of criminal intention like “knowingly”, intentionally” or “recklessly” are absent from the provision. However, the word “shall” is used is used in the provision.\n22.\nIn\nLI Yiu-kee v Chinese University of Hong Kong\n, unreported, CACV No.93 of 2009\n,\nwhen the Court of Appeal considered the meaning of “shall” appearing in the provision concerned, the entry below stated in the Hong Kong English-Chinese Legal Dictionary, Butterworth, 2005 was quoted with assistance:\n\"Mandatory\n--\nenforcing strict compliance; not directory. Whether a provision in a statute conferring a power or imposing a condition to be observed is mandatory is a question of the intention of the legislature in the context of the statute as a whole … .\nWhile the use of the word 'shall' or 'must' is prima facie indicative of a mandatory provision\n, care should be taken before identifying a provision to be mandatory to ascertain the consequences if the requirement is not complied with, particularly when such consequences are not spelt out in the provision …\" (my emphasis)\nThe nature and subject matter of the offence\n23.\nWhile exceptions exist, the more serious the offence in terms of penalty and social obloquy, the less likely it is that the presumption will be held to have been supplanted.\n[20]\nOn the other hand, as Ribeiro PJ said at paragraph 142 of his judgment in\nHin Lin Yee\n, there is generally less need to feel inhibited about overriding the presumption in relation to what may compendiously be call “regulatory offence”. Lord Reid in\nR v Warner\n[1969]\n2 AC 256\n, at paragraph 271, gave some examples of such offences which in the English context, were held to impose absolute liability. They were offences under public health, licensing and industrial legislation.\n24.\nIt is of note that the long title of the Ordinance provides that:\n“An Ordinance to consolidate and amend the law relating to financial products, the securities and futures market and the securities and futures industry,\nthe regulation\nof activities and other matters connected with financial products, the securities and futures market and the securities and futures industry,\nthe protection of investors\n, and other matters incidental thereto or connected therewith, and for connected purposes.”[\nMy emphasis\n]\n25.\nThe subject matter and nature of offences governed under section 114 are obviously “regulatory” in nature concerning “licensing” matters and the Ordinance aims at protecting the investors. I have not lost sight that the maximum penalty upon conviction on indictment is 7 years’ imprisonment, and on summary conviction is 2 years’ imprisonment. However, despite the relatively heavy penalty, and possibly the serious professional ramification imposed on the offenders upon conviction of the offence, carried by the provision, I consider that this is an offence attaches comparatively less “social obloquy” or “stigma” to the offender, especially when this kind of offence would most commonly be committed by a corporate body.\n26.\nIt is worth noting that when reading section 114(1) and section 390 together, it is clear that when an officer is involved or contributed to the commission of the offences of s.114, the provision of s.390 then deliberately require proof of\nmens rea,\nnamely “recklessness”, “with consent” “induced” or “procured” etc. It is not difficult to infer that it must be due to the presumption of\nmens rea\nand the fact that stigmatising effect on a natural person is much more than on a corporate body.\nThe legislative intent\n27.\nRibeiro PJ continued, at paragraph 143, in his judgment of\nHin Lin Yee\n: “the legislative purpose is obviously important. If, in the light of the nature and subject matter of the offence, construing the provision to require full\nmens rea\nwould make successful prosecution so unlikely that the statutory objectives would be frustrated, this must be given weight. Where this is a legitimate consideration, the response should often be to consider whether the adoption of an intermediate basis of liability accords with the true legislative intention.”\n28.\nHaving considered the subject matter and nature of the offences in question, I consider that the statutory objective of section 114(1) of the Ordinance will be frustrated if proof of full\nmens rea\nis required. It is very difficult for the prosecution to prove a company or the directing mind of it is intentionally or knowingly carrying on or holding itself out as carrying on the business in advising on corporate finance. It is common sense that companies of securities and futures industry normally involve sophisticated division of labour due to its complex nature of work. The actual works and daily operations usually are not carried out by the directing mind of the company but its professional staff. It will defeat the whole purpose of the Ordinance to protect the investors many of which may not have much knowledge of the industry and rely heavily on the conducts and integrity of their financial adviser. The onerous duty to prove full\nmens rea\nwould render the regulatory function of the governing body and enforcement of the provision ineffective.\n29.\nFurthermore, sections 114(1) and 390 of the Ordinance cannot be read in isolation. It is very clear that the legislation deliberately requires proof of\nmens rea\nin respect of section 390 when “officer” is targeted. I am of the view that it does shed light on the legislative intent. If\nmens rea\nis required for section 114(1), the legislator could have easily spelt it out like what it is done in section 390 of the Ordinance.\n30.\nTaking into account all the relevant principles of statutory construction set out in\nHin Lin Yee\n, I consider that the presumption of\nmens rea\nshould be displaced in respect of the offences created in section 114(1).\nAre the offences under section 114(1) absolute liabilities?\n31.\nRegulatory offences do not as a rule involve conduct falling within the fifth of the aforementioned categories where absolute liability may be justified. Many regulatory offences may fall within other categories of the five alternatives. The legislative policy underlying the regulatory offence may justifiably be to require diligent proactive management or supervision on the part of the person subjected to the duty.\n32.\nIn the case\nKulemesin Yuriy\n, Ribeiro PJ “noted that when dealing with a serious as opposed to regulatory offence, a court considering whether the presumption of\nmens rea\nshould be displaced – and if so, replaced by what – is likely to find it more appropriate to infer that the second (rather than the third) alternative best reflects the presumed intention of the legislature since that alternative lies closer to the full\nmens rea\nend of the spectrum and does no violence to the presumption of innocence, as befits a serious offence. On the other hand, the third alternative is likely to be more compelling in relation to a regulatory offence.”\n[21]\nThat is also in line with the observation made by him in\nHin Lin Yee\nat, paragraph 161, that “the policies underlying regulatory offences are likely to be best reflected by construing the offences as falling within the third alternative, founding liability on the absence of due diligence or the absence of honest and reasonable belief”.\n33.\nSince section 114(1) carries heavy penalty with maximum term of 7 years’ imprisonment upon indictment, I consider the fifth alternative of absolute liability should be put out of the picture in the present case. In other words, I consider the first (full\nmeas rea\nrequired) and fifth alternative (absolute liability) of liability as set out in\nHin Lin Yee\nare not applicable in the present case.\nIssue II:\n“\nWithout reasonable excuse” ---an element of the offence or a defence only?\n34.\nThere remain three alternatives: the second, the third and the fourth, which are regarded as intermediate basis of liability\n[22]\n. It is of note that the phrase “without reasonable excuse” appears in the offence-creating provision, namely section 114(8). Before deciding which alternative (2\nnd\n, 3\nrd\nor 4\nth\n) the offences under section 114(1) should fall in, I shall deal with another separate but related legal issue that has been raised in the trial: whether “without reasonable excuse” should be regarded as an element of the offence or just a defence under section 114(1)?\n35.\nIn fact, the issue has previously been discussed in the Court of First Instance by Barnes J in\nSecurities and Futures Commission v Yu Ka Tak\n[2007] HKCLRT 728. It was held by Barnes J, at paragraph 20, that “without reasonable excuse” is an element of the offence under section 114(1):\n“20. In the present case, the contents of s.114, particularly ss.114(3) and 114(9), show that the legislation has included “without reasonable excuse” as an element of the offence. Of course, this case also involved the prosecution’s allegation that the respondent was “without licence”, and under\ns.94A\nof the\nCriminal Procedure Ordinance\n, it was not necessary for the prosecution to prove that the respondent was “without licence”. If the respondent wished to prove that he had a licence, the burden of proof would be on him on a balance of probabilities. However, this does not mean that it was unnecessary for the prosecution to prove that the respondent had contravened s.114(3) without reasonable excuse. The present case is not significantly different from\nHKSAR v Lam Yuk Fai\n, and the principles stated therein are also applicable to this case.”\n36.\nBarnes J further observed that:\n“21. Although, generally speaking, whether a person has a“reasonable excuse” is probably something that only that person himself will know, this does not mean that there is anything improper in requiring the prosecution to prove the element of“without reasonable excuse” (as held by the Court of Final Appeal in\nHKSAR v Lam Yuk Fai\nand the Court of First Instance in\nHKSAR v Ng Po On\n).\n22. Apart from the fact that the provision reflects that “without reasonable excuse”is one of the elements, I have also taken the legislative spirit into consideration. Had the legislative intent been that any person who contravened s.114(3) committed an offence subject to the defence of “without reasonable excuse”, the provision could have expressly said so, as in\ns.118\n(5) of the\nCopyright Ordinance\n(\nCap.528\n) and\ns.9\n(4) of the\nTrade Descriptions Ordinance\n(\nCap.362\n).\n23. The contravention involved in this case is quite different from the offence of “possessing an offensive weapon in a public place” contrary to\ns.33\nof the\nPublic Order Ordinance\n(\nCap.245\n). It would be rather difficult for the prosecution to prove that a defendant was in possession of an offensive weapon in a public place“without reasonable excuse”. Given that the legislation is intended to protect the well being of a person, it is neither improper nor unfair for “without reasonable excuse” to be made not an element of the offence which the prosecution has to prove but a defence. Furthermore, the fact that prosecutions have to be sanctioned by the Secretary for Justice serves to provide considerable protection to a person. Lord Woolf also mentioned similar offences in\nHKSAR v Lam Yuk Fai\n(see para.18 above).\n24. The scenario in this case is different. The prosecution’s case was that the respondent carried on a regulated activity (leveraged foreign exchange trading) as business, and the case involved three persons going to the company for which the respondent worked to open accounts and carry out foreign exchange transactions. The respondent also told them that his company would charge 18% of the profit as commission etc.\n25. The prosecution alleged that the respondent did not have a licence. If the respondent claimed the contrary, he had to prove it on a balance of probabilities. If he exercised his right not to give evidence, the defence would not have any evidence to show that he had a reasonable excuse. Under such circumstances, the court could, on the evidence adduced by the prosecution, determine whether the only reasonable inference to be drawn was that the respondent was “without reasonable excuse” and had contravened s.114(3) accordingly.”\n37.\nNevertheless, subsequently in\nSecurities and Futures Commission and Liu Su Ke\n[2010] 2 HKLRD 673\n, Lunn J considered the same issue but came to a different conclusion. He ruled that “without reasonable excuse” was not an ingredient of the offence, and in pursuance to\ns. 94\nA of the\nCriminal Procedure Ordinance\n(\nCap 221\n), a defendant bore the persuasive burden of proving reasonable excuse. However, there were no compelling reasons to justify the abrogation of the presumption of innocence in this way and applying the proportionality test, s. 94A would be read down, so that an evidential burden was imposed on a defendant to point to evidence that raised the issue of reasonable excuse.\n[23]\n38.\nAlthough in\nLiu Su Ke,\nthe court was concerned with a different provision namely, section 328 (a) of the same Ordinance,the wordings and drafting of both provisions of 328 and 114 are actually very similar. As a matter of fact, the case of\nYu Ka Tak\nwas submitted to Lunn J for his consideration by Senior Counsel for the Respondent in favour of his contention that “without reasonable excuse” should be an element of the offence\n[24]\n, however\nYu Ka Tak\nwas not discussed in the judgment by Lunn J.\n39.\nLunn J made it plain, at paragraph 74 to 76, that\n“74. In my opinion, Mr Bell has identified succinctly the correct approach to the construction of the relevant provisions of this Ordinance:\n“Specific conduct or omission prohibited by a statutory provision may or may not be sufficient to constitute an offence. The essential criterion is whether the prohibited conduct or omission is inherently culpable.”\n75. It is apparent from the long title of the Ordinance that one of the purposes and objectives in regulating activities in the securities market is, and is stated, to be the \"protection of investors\". Clearly, the requirement of a disclosure of interests in shares, on acquisition or cessation of that interest, is the better to inform the market and is for the protection of investors. Importantly, the ingredients of the offence alleged against the appellant require proof by the prosecution of knowledge in the appellant of the occurrence of the relevant event. It is only with that knowledge, that culpability is imposed in consequence of a failure to make disclosure of a notifiable interest….\n76. In my judgment, in the context of the objects and purposes of the Ordinance, in particular the regime of disclosure to better inform and protect investors that is an inherently culpable act and those are the ingredients of the offence”\n40.\nI am of the view that the above principle stated in\nLiu Su Ke\nalso applies in the present scenario. Although\nLiu\ncase concerned a difference provision relating to criminal act of “non-disclosure”, advising on corporatefinance without licence in the present situation is also, in my view, inherently culpable. And we are here concerned of the same Ordinance with the same objective of protecting investors and regulating the securities and futures industry.\n41.\nIn the present case, Senior Counsel for the Defence, Mr Duncan, in court, as opposed in the defence written closing submission,\n[25]\ndid fairly agree that the terms “without reasonable excuse” should be considered as a defence instead of an ingredient of the offence while Miss PO Wing Kay for the Prosecution maintained her view that “without reasonable excuse” should be considered as an element of the offence relying on the judgment by Barnes J. Be that as it may, Miss PO frankly admitted in the court that she was not aware of the subsequent judgment of Lunn J on the same issue.\n42.\nHaving carefully considered both aforesaid authorities from the Court of First Instance, I ruled that the term “without reasonable excuse” should be regarded as a defence to be raised by defendants on evidential burden. I note that\nLiu Su Ke\ncase was delivered after\nYu\nKa Tak\ncase and that the Court of Final Appeal Judgment of\nHKSAR v\nNg Po On\n[2008] 4HKLRD 176\nhad not been delivered when\nYu\ncase was decided.\nWhat defence is available and the standard of proof?\n43.\nBy now, I have decided that a statutory defence, namely “without reasonable excuse” is available for offences under ss. 114 (1) and (8). The effect of any statutory defences applicable to the offence charged is obviously important where the presumption of\nmens rea\nrelating to the offence-creating provision is displaced. The key question is whether the statutory defence, if properly construed, is inconsistent with the availability of the second or third alternative. If so, only the statutory defence could be relied on.\n[26]\nThat was regarded as the fourth alternative liability as defined in\nHin Lin Yee\n.\n44.\nFurther, Ribeiro PJ subsequently observed in\nKulemesin Yuriy,\nat paragraphs 85- 89, that:\n“85.\nHin Lin Yee\nwas concerned with the mental element to be proved in relation to a regulatory offence, namely, breach of\nsection 54\n(1) of the\nPublic Health and Municipal Services Ordinance\n. The offence involved selling drugs which were intended for use by man but unfit for that purpose (because they had been contaminated by a certain contaminant). It was an offence punishable on summary conviction by a maximum fine of $50,000 and imprisonment for 6 months….\n86. The present case involves an offence which is not merely regulatory but involves serious criminal liability, being triable on indictment and punishable by a fine of up to $200,000 and by imprisonment for up to 4 years. In cases like the present, a conviction is also likely to have serious professional ramifications for the mariners involved. As we have seen, a constitutional challenge was made to the reverse onus apparently imposed by the statutory defences provided for.\n87. I concluded in\nHin Lin Yee\nthat the halfway house to be adopted in Hong Kong was the third (reverse onus) and not the second (evidential burden) alternative, on the basis that once the Court was prepared to go so far as to accept as a halfway house, the imposition of a reverse onus on the defendant, there was little to be said in favour of the second alternative. I also remarked that the latter alternative was less straightforward, since it requires the prosecution to proceed subject to the contingency that the accused discharges an evidential burden as to his having had reasonable grounds for an exculpatory belief. The prosecution would then have to prove either the absence of an honest belief or the absence of reasonable grounds for such belief.\n88. Such reasoning is apt when the Court is dealing with a merely regulatory offence and no constitutional issue is raised. Given the relatively minor gravity of the offence, the Court may be prepared to adopt the reverse onus alternative which falls close to the absolute liability end of the spectrum as best reflecting the presumed legislative intent upon displacement of the presumption of\nmens rea\n. Such alternative remains available and may be compelling when construing regulatory offences.\n89. However, where, as in the present case, the Court is not dealing with a merely regulatory offence, it may conclude that the presumption of\nmens rea\nhas been displaced but may not accept that adoption of the third alternative would reflect the legislative intent. Where a serious offence carrying severe penalties is involved, a reverse onus may also be regarded as making excessive inroads into both the presumption of\nmens rea\nand the constitutionally protected presumption of innocence. In such cases, the Court may find it more appropriate to infer that the second alternative best reflects the presumed intention of the legislature, doing no violence to the presumption of innocence.”\n45.\nGiven the serious criminal liability and severe penalty carried by the s.114 offences and the fact that the standard of proof of the statutory defence held in\nLiu Su Ke\nto require evidential burden only is consistent with that of the second alternative set out in\nHin Lin Yee\n, I, having considered all the above steps of statutory construction, find that the present offences under sections 114(1) and (8) are offences to which the second alternative of intermediate basis of liability applies. In other words, they are offences where:\n(a) The prosecution is required to prove beyond reasonable doubt that the D1 did carry on or hold itself out to the company clients in question as carrying on a business in advising on corporate finance;\n(b) If D1 is able to reply on evidence which, if unrebutted, raises reasonable doubt as to whether he acted or omitted to act in the honest belief on reasonable grounds that her conduct was not carrying on or holding itself out as carrying on a business in advising on corporate finance, D1 is entitled to be acquitted unless at the end of the day, the prosecution establishes beyond reasonable doubt that the D1 either did not have such belief or that his belief, although honestly held, was not based on reasonable grounds (\ncommon law defence\n);\n(c) Furthermore, given the existence a statutory defence, if D1 is able to reply on evidence which, if unrebutted, raises a reasonable doubt as to whether a reasonable excuse exists for its conduct, D1 is entitled to be acquitted unless at the end of the day, the prosecution establishes beyond reasonable doubt that no such excuse exists or that the excuse relied on is not reasonable\n[27]\n(\nstatutory defence\n).\nIssue III: Could D1 be liable for acts of Michael?\n46.\nConcerning the criminality of a corporate body, there is no dispute by both parties that the current law is that the company will have imputed to it the acts and state of mind of those of its director and managers who represent its “directing mind and will”. And it is also common ground that D2 in the present case was the directing mind of D1, being the sole shareholder and director of D1. The issue is whether the acts of Michael, having been engaged by D2 to deal with the respective clients in question, could be attributed to D1?\n47.\nThe key question was identified by Lord Reid in\nTesco Supermarkets Ltd v Nattrass\n[1972] AC 153\n, in two passages at pp. 170 and 171 respectively:\n“I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have\nknowledge or intention or be negligent\nand he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability.”\n“Normally the board of directors, the managing director and perhaps other superior officers of a company carry out the functions of management and speak and act as the company. Their subordinates do not. They carry out orders from above and it can make no difference that they are given some measure of discretion. But the board of directors may delegate some part of their functions of management giving to their delegate full discretion to act independently of instructions from them. I see no difficulty in holding that they have thereby put such a delegate in their place so that within the scope of the delegation he can act as the company. It may not always be easy to draw the line but there are cases in which the line must be drawn….”\n48.\nAlso, a contrast can be drawn between the offences of strict liability and those require proof of\nmens rea\n. Lord Templeman said at p.465 in\nre Supply of ready mixed concrete, HL,\n(No.2)\n[1995] AC 456\nthat:\n“the first principle is that a company is an entity separate from its members but, not being a physical person is only capable of acting by its agents. The second principal is that a company, in its capacity as a supplier of goods, like any other person in the capacity of taxpayer, landlord, or in any other capacity, falls to be judged by its actions and not by its language. An employee who acts for the company within the scope of his employment is the company. Directors may give instructions, top management may exhort, middle management may question and workers may listen attentively. But if a worker makes a defective product or a lower manager accepts or rejects an order, he is the company.\n49.\nIt is recently held by the Court of Appeal of England in\nR v St Regis Paper Co. Ltd\n[2011] EWCA Crim 2527\nthat the above principles however have no application to the regulation in question in that case which required proof of full intent. It again distinguished between offences of strict liability and offences which required proof of\nmens rea\n.\n50.\nOn the other hand, in\nHKSAR v Timful Garment Ltd\n, HCMA 770 of 2001, Deputy Judge Toh, as she then was, quoted what Litton JA said in the\nR v Wong Tak Choy\n[1994] 3 HKC 353\n:\n\"The Import and Export \"General\" Regulations do not by express terms make an employer liable for a servant's act of taking article out of Hong Kong contrary to the provision of the export licence unless he has caused the servant to do so. The effect of the verb to cause in the context of the Import and Export Regulations has been exhaustively analyzed by the Privy Council in\nAG v Tse Hung Lit\n[1986] AC 876\n. There the Privy Council expressively approve of the passage in the judgment of the High Court of Australia in\nO'Sullivan v Truth and Sportmans Limited\n1957-96 CLR 2001\nwhere the High Court was dealing with the offence of causing a newspaper to be offered for sale containing certain prohibited matters. The passage is in these terms:\n\"(The expression to cause) should be interpreted as confined to cases where the prohibited act is done on the actual authority, express or implied, of the party said to have caused it or in consequence of his exerting some capacity which he possesses in fact or law to control or influence the acts of the other. He must moreover contemplate or desire that the prohibited act will ensue.\"\n51.\nDeputy Judge Toh, as she then was, further observed that:\n“15. The appellant in\nWong Tak Choy\ncase was not a limited company. The appellant was one of the three partners of a garment factory. In\nWong Tak Choy\ncase there was evidence that a Mr Tsang who was in charge of the Shipping Department had carried out some import and export transactions and that the Appellant did not authorise it and knew nothing about it.\n16. The Magistrate in Wong's case decided that Wong was vicariously liable for what Mr Tsang had done. Litton JA (as he then was) held that the decision was wrong and that the Appellant could only be found guilty if there was evidence to show that he did cause the servant to commit the crime.\n17. I agree with the Respondent that the present case can be distinguished from\nWong Tak Choy\ncase in that the Appellant is a limited company and its mind and will must, of course, be exercised by the Company Directors and Managers, and the Company had through its board of directors, given full authority to Mr So to act on its behalf, as its production manager, in charge of not only production but import and export.\n18. The learned Magistrate correctly found that a company \"will have imputed to it the state of mind, both of its directors and managers, who represent its directing will and mind. So any mistakes or intentional flouting of the law by Mr So can be imputed to the Company.”\n52.\nAs I have ruled the offences under section 114(1) are strict liability to which the second alternative applies and that D1 is a corporate body instead of a natural person, I consider that, by applying the principles stated in the authorities above, what Michael (being an agent of D2)’s acts done could be attributable to not only D2 but also D1, subject to the finding of facts as to whether Michael was acting within the actual and specific authority of D2.\nDirections and reminders\n53.\nIn reaching the verdict, I have reminded myself that the prosecution is required to prove the guilt of the defendants beyond reasonable doubt. The defendants have nothing to prove except D1 to raise the defence with evidential burden in respect of s.114 offences. If I were to disbelieve D2’s evidence in court that does not mean she or D1 is guilty of the offence. Were I to disbelieve what she said in court I am also required to consider the evidence I do accept and decide if that satisfies me of the guilt of the defendant to the required standard.\n54.\nIn assessing the credibility of witnesses, I\nreminded\nmyself that each case has its own particular features\nand\nsweeping generalization should not be made. I bore in mind that I had to consider the\ninherent\nprobabilities of the evidence\nan\nd that the\ndemeanour\nof the witnesses could be relied on only as a last resort.\n55.\nD2 has a clear record and I have followed the guideline laid down in the case of\nBerrada\nand\nregarded her as having a lower propensity to crime\nand\na higher degree of credibility.\n56.\nI also reminded myself that where the prosecution relies on circumstantial evidence, the court can only draw an inference from facts proved beyond reasonable doubt and such an inference must be the only reasonable inference that can be drawn from such facts. It must also be an irresistible inference.\n57.\nThis case involved similar summonses laid against D1 and D2 under sections 114 and 390 respectively of the Ordinance, I have reminded myself that I have to deal with evidence for each summons separately.\nDiscussion on the Evidence\n58.\nThe credibility of all the prosecution witnesses are generally not in issue, except the defence challenged Cheuk had actually not read the content of the written agreements before his signature, which Cheuk firmly disagreed. In the following paragraphs, I will firstly deal with the evidence concerning summonses laid under s.114(1) against D1, i.e. C.L. Management Services Ltd, in relation to its dealing with the 3 respective client companies: 3 Wells, UK Fur and New Bonus. The “carrying-out” offence under section 114(1)(a) only concerned 3 Wells while the “holding-out” offences under section 114(1)(b) concerned all three companies in question.\nSummonses against D1\nThe “carrying-out” offence in respect of 3 Wells (ESS 30671 of 2013)\nBackground of D1, D2 and Michael\n59.\nD1, C.L. Management Services Ltd, was and is a registered company in Hong Kong and D2 was the sole director and shareholder of the company at all material times. D1 shared the same office at the address stated in the agreements in question with Cheong Lee Securities Limited\n(“Cheong Lee”)\nwhich was and is a securities company owned by D2. It is admitted by both parties that neither D1 nor D2 were licensed with SFC in any capacity or in relation to any regulated activities under the Ordinance.\n[28]\nNeither was it disputed that D2 knew that she was not licensed to do so at the material times.\n60.\nD2 is educated and received part of her education in Australia. She was divorced having 4 children. She has been actively participating in the charitable work held by Yan Oi Tong where she met Cheuk’s wife who was the chairlady of Yan Oi Tong. D2 was also elected as a vice-president of Yan Oi Tong before. She was a stockbroker and a licensee as a securities’ dealer between 1991 and 2003. D2 acquired Cheong Lee in 2007 which was and is a company engaged in the business of dealing in securities and futures. In March 2011, the holding company of Cheong Lee, CL Group (Holdings) Limited\n(“CL Group”\n) was listed on the GEM board of SEHK and D2 was and is the major shareholder. D2 knew the listing procedures from the past listing experience of her own company, CL Group and as a result of which, she knew a number of professional parties, including lawyers, accountants and sponsors for listing matters.\n61.\nAs testified by D2, Michael was a certified public accountant and also a chief financial officer of a listed company. D2 knew him since 2004 and CL Group had employed Michael as a company secretary in 2005 for 6 months. Between 2004 and 2007, D2 hired Michael to handle accounting matters for her personal companies. As far as D2 knew, Michael was conversant with the listing procedures. D2 regarded Michael as a person of experience and one could handle matters very well, as she had worked with him for a long time. In the present case, D2 alleged that he had engaged Michael to prepare the agreements in question and liaise with the respective three client companies for her. She also asked Michael to look into the internal audit of 3 Wells for allegedly “her own assessment” only as to whether 3 Wells were capable of being listed before she introduced the professional parties handling the listing procedures of 3 Wells. D2 maintained that Michael was not an employee of D1 at the material times.\nBefore 3 Wells Agreement was signed\n62.\nAccording to the evidence, what D2 and Michael have done to 3 Wells before the 3 Wells Agreement had been signed were as follows:\n(a) In early 2011, about half a year before signing the agreement, D2 firstly raised with Cheuk if he was interested to be instructed by her to upgrade 3 Wells, meaning getting it to be listed;\n(b) Cheuk subsequently visited several times D2 at the address of D1, as stated in the 3 Wells agreement for the purpose of knowing more about D1’s scale of business (though in his mind he only knew Cheong Lee) and considering whether to choose D1 for the listing matters. Every time he saw D2 working inside the office and it was Michael who received and discussed the matter with Cheuk;\n(c) Cheuk also, during the half year before the agreement was signed, has gathered information in respect of provider of consultancy services in listing matters. He said the price was generally from $300,000 to $500,000;\n(d) Cheuk was not familiar with the listing procedures and therefore he needs advice on the procedures, human resources and a professional party to line up all the right professionals for the listing application; Cheuk admitted that apart from the payment and lining up of professionals, the other terms on scope of services were not discussed with D2 in details. Those were only confirmed when the agreement was signed;\n(e) What Cheuk understood was that D2 and Michael would act like a “martial-art instructor” to help 3 Wells in the listing procedures. He expected that D2’s party would supervise or even work with the team of professionals to ensure the smoothness of the listing of 3 Wells;\n(f) Michael was the first “staff”, as said by Cheuk, D2 had introduced to Cheuk;\n(g) D2 instructed Michael to prepare the 3 Wells agreement for Cheuk to sign. Cheuk signed the agreement first at 3 Wells’ office, the agreement was subsequently sent to Michael for D2’s signature at her own office; A signed copy by both parties was later sent to 3 Wells;\n(h) Cheuk said he did read the content of the agreement before he signed. Because of their friendship and D2’s reputation on both her profession and charity, Cheuk said that he did not care much about whether D2 was signing the contract on behalf of Cheong Lee or any other company of her. Nor did he care much about the date of the agreement;\n(i) Cheuk knew well that he was appointing D1 as 3 Well’s “exclusive financial adviser” and he did believe D2 was capable of providing such service as a professional financial adviser for 3 Well’s listing and D2 being a consultant should provide such service as a whole.\nRelevant clauses in the 3 Wells Agreement\n63.\nThe written agreement\n[29]\nsigned between D1 and 3 Wells is not at all a complicated one. The terms stated in are in fact clear and easy to understand. I quote below the relevant ones:\n“PROFESSIONAL FINANCIAL CONSULTATION SERVICES AGREEMENT\nName of Party A : 3 Well Groups Holdings Limited (referred to as “Party A”)\nOffice of Party A : Units 1503 – 6, 15/F, Tower 1, Ever Gain Plaza, 88 Container Port Road, Kwai Chung, N.T., Hong Kong\nName of Party B : C. L. Management Services Limited (referred to as “Party B”)\nOffice of Party B : Room 1106, 11/F, Mass Mutual Tower, 38 Gloucester Road, Wan Chai, Hong Kong\nIn view of Party A’s intention to apply for a listing status on the Growth Enterprise Market (GEM) Board of the Hong Kong Stock Exchange, Party A and Party B hereby enter into this Engagement Agreement on matters about the engagement of Party B as an\nexclusive financial advisor\nin relation to Party A’s listing upon arm’s length negotiation :\n1.\nEngagement\nWith the effective from the confirmation and signature of this Agreement by Party A, Party B is duly appointed by Party A as the\nexclusive financial advisor\nof Party A and its subsidiaries (hereinafter referred to as the “Group”) in relation to the listing in Hong Kong.\n2.\nScope of Services\nParty B shall make full endeavour to use its resources and advantages for the listing of Party A, in order to enable Party A to be listed on the Hong Kong Stock Exchange. The responsibilities of Party B in relation to this listing include :\n(1) to provide\nprofessional financial advices\nin relation to arrange of the application for the listing on the Hong Kong Stock Exchange and to assist in resolving the relevant important issues;\n(2) to provide\ntechnical advice\non all related foreign and domestic policies, and to assist Party A in\ndrawing up a listing scheme or proposal on the basis of an initial evaluation;\n(3) to assist and guide Party A on the formulation of a restructuring plan, and a timely tracking and monitoring program for the intended listing, and on the implementation thereof;\n(4) to assist Party A in preparing the financial statements of the Group in accordance with the Hong Kong Accounting Standards;\n(5) to guide and assist the Group in the preparation of the listing financial information (including the preparation of the financial information to be contained in documents such as the prospectus of Party A) in accordance with the standard requirements, and to actively participate in the preparation work for Party A’s application for listing;\n(6)\nto assist Party A in the engagement of various listing-related intermediaries in relation to the intended listing, such as accountants, lawyers and listing managers (including securities brokers and underwrites etc., which shall be internationally-renowned institutions). The selection of the aforesaid institutions shall be confirmed by Party A, and the payment of costs to each of the intermediaries shall be made by Party A\n;\n(7) to assist Party A in performing the required due diligence in respect of the listing project and to\ncoordinate with other intermediaries\n;\n(8) to enthusiastically follow up audit work in connection with the listing matters with the Hong Kong auditors for and on behalf of Party A;\n(9) to assist Party A in the overall arrangement with respect to the questions raised by the Hong Kong Stock Exchange and the Securities and Futures Commission (SFC), including the review and submission of replies on financial information;\n(10) to consult with Party A to\nframe a practicable listing schedule\nin order to ensure the timely completion of the required work;\n(11) The advisory services shall span over the financial accounting years from September 2011 to December 2012.\n…….\n5.\nPayment of Costs\nParty A agrees and undertakes to pay a cost of HK$600,000 annually to Party B as compensation for acting as its\nfinancial adviser\n. Upon successful listing of Party A on the Stock Exchange of Hong Kong, Party A shall grant an additional number of share options, being equivalent to 1.5% of the issued shares, to Party B. The payment should be made within 7 days when this agreement effective. The payment terms is as follows\nTime of payment\nPayment\nWithin 7 days after signing this Engagement\nHK$150,000\nAgreement and payment in quarter\nThe date on which the listing application submit to the\nStock Exchange of Hong Kong\nShare options equivalent to 1.5% of the number of issued shares\nThe accommodation expenses incurred by Party A during its work should be financed by Party A.” (\nMy emphasis\n)\n64.\nI find the above 3 Wells Agreement a very clear and comprehensible agreement representing that D1 would during the period covered by the agreement act as an “exclusive financial advisor” providing a comprehensive scope of advisory services for 3 Wells concerning the compliance with and in respect of the listing rules. The reasons are:\n(a) The agreement was clearly named as\n“Professional Financial Consultation Services Agreement”\n;\n(b) It was stated therein twice\n[30]\nthat D1 was engaged by 3 Wells as an\n“exclusive financial advisor”\nin relation to 3 Wells’ listing in Hong Kong;\n(c) All the terms in Clause 2 “Scope of Services” clearly concerned advisory services on listing matters, including compliance with and in respect of the listing rules, of 3 Wells;\n(d) In Clause 5, the payment of costs was clearly for D1 acting as 3 Wells’\n“financial adviser”.\nIt is of note that the payment of costs to other professional listing-related intermediaries, e.g. lawyers, accountants and listing managers, were to be separately and additionally paid by 3 Wells\n[31]\n;\n(e) The\nadvisory services\nshall span over the financial accounting years from September 2011 to December 2012\n[32]\n.\nAfter 3 Wells Agreement was signed\n65.\nOn the evidence, after the agreement was signed, D2 and Michael did provide part of the services as stated in Clause 2 of the agreement:\n(a) 1-2 weeks after 31 Aug 2011 when 1st payment of HK$ 150,000\n[33]\nwas paid by 3 Wells to D1 in pursuance of the agreement, Cheuk and Lee met Michael and his team for the listing matters;\n(b) Michael, and his team, then requested to assess each department of 3 Wells by interviewing each department head and visiting the mainland factory;\n(c) On 1 September 2011, Geoffrey WONG\n[34]\n(“Geoffrey”)\nof Michael’s team, sent a outstanding list and time table for the listing purpose to Lee;\n[35]\nThe same was forwarded to Michael;\n(d) Between 16 September and 17 October 2011, Lee sent, as requested by Geoffrey, a list of 3 Wells’ internal documents\n[36]\nto Alex Tse\n(“Alex”)\nand Geoffrey, for the purpose of reviewing the internal control. Alex sent their comments on the internal control to 3 Wells on 22 September 2011. As seen from the email, meetings for the same purpose were held on 19 September, 4, 13 and 17 October 2011, all the emails were forwarded to Michael and Cheuk;\n(e) Cheuk understood that all the above documents were sent to Michael and his team for their consideration as to whether 3 Wells was capable of being listed;\n(f) Before D2 lining up the professional team, Cheuk recalled that either D2 or Michael had come back to him and told him that 3 Wells should be eligible to be listed;\n(g) On 3 October 2011, Michael and Cheuk’s team had the first meeting with the company lawyer\n[37]\n;\n(h) On 21 October 2011, Lee sent to Geoffrey another list of 3 Well’s information\n[38]\nwhich would be forwarded to Sponsor’s consideration;\n(i) On 25 October 2011, Michael attended the first meeting with the Sponsor and Cheuk’s team ;\n[39]\n(j) On 12 December 2011, Michael attended a meeting with the Sponsor and Cheuk’s team concerning the extension of the listing on GEM project for one year to September 2013\n[40]\n;\n(k) On 16 January 2012, Michael attended a meeting with Cheuk’s team and the Sponsor for the purpose of outlining the execution plan for GEM project\n[41]\n;\n(l) On 14 May 2012, 3 Wells paid a second payment of $150,000\n[42]\nto D1 in pursuance of the agreement;\n(m) Around September/ October 2012, Michael called Lee repeatedly and urgently requesting 3 Wells to terminate the 3 Wells Agreement due to problem of “internal audit”. It was promised that a refund of a total of $300,000 will be made to 3 Wells by D1. The request was agreed by Cheuk and a letter was finalised, drafted by Michael and amended on Cheuk’s instruction, and sent to D1’s address and to the attention of D2\n[43]\n;\n(n) D2 admitted that she had received the termination letter\n[44]\nbut did not pay heed to it and therefore did not act on it;\n(o) No refund was ever made by D1 to 3 Wells until now;\n(p) Cheuk all along understood that D2, Michael and their team, apart from lining up the professionals including the lawyers, accountants and sponsors, would supervise and work with them to make the listing process successful. However, several months after the agreement, it seemed that D2 and her team did not do much in the listing process;\n(q) Upon lining up the professionals, D2 said she had attended the first introductory meeting after which he did not take part in the process. She relied on Michael to do all the liaison work for 3 Wells’ listing matters;\n(r) D2 admitted that out of the total sum of $300,000 D1 had received from 3 Wells, $150,000 was paid to Michael.\nWas Michael acting on behalf of D2 within her actual and specific authority?\n66.\nIt is contended by the Defence the acts by Michael and his team to 3 Wells were not done within D2’s actual and specific authority.\n67.\nOn the evidence, D2 was the sole shareholder and director of D1. The scale of D1, as testified by D2, was not a huge one. She said in evidence that it was her another company Cheong Lee assigning a room at the address in question for her to work for D1. Cheuk said that Michael was the first staff D2 had introduced to 3 Wells responsible for the listing project. Michael was working in the same office as that of D2 in respect of the dealing with 3 Wells as testified by Cheuk. It is reasonable to infer that D2 and Michael did work together closely during the material times. According to Cheuk and Lee, if there was anything they wanted to inform D2, they would do it through Michael, e.g. D2 signing the 3 Wells agreement or Lee sending the termination letter to D2. 3 Wells’ party always understood Michael being the agent/staff of D2. At no stage did D2 inform 3 Wells that such her relationship with Michael had been changed.\n68.\nFurther, I found Michael was actually working as a delegate/agent of D2, being responsible for the services provided to 3 Wells about the listing matters. On the evidence, it is clear that after D2 getting the business from 3 Wells by using her connection and reputation acquired both from her charity and professional works, she then left the actual operation to her able assistant, Michael. As admitted by D2, Michael was conversant with listing procedures as he was a certified public accountant and a chief financial officer of a listed company before. Michael has also been employed by D2 as company secretary for CL Group in the past. It was mainly Michael and his team to follow up the listing matters of 3 Wells. As a matter of fact, what Michael and his team did was generally consistent with the agreement terms, although it turned out to fall short of performance as expected by Cheuk. No doubts Cheuk and his team understood that Michael was all along acting on behalf of D2.\n69.\nEven during the termination of the contract, the letter was sent to D2’ attention. D2 admitted that she had received the termination letter which showed that she remained in control and was the person in charge of the whole process on behalf of D1. Before the 3 Wells Agreement was terminated, a total of HKD$300,000 was paid to D1 by 3 Wells on schedule which has never been refunded as promised by Michael over the phone. Out of HKD$300,000, Michael was rewarded with half of the remuneration, i.e. HKD $ 150,000, as admitted by D2. All of these are consistent with Michael’s role as an agent for D2. It makes no sense that Michael, without any reasons, would be or intended to be in any way acting outside D2’s authority. Having reviewed all the evidence, I found that Michael was all along acting on behalf of D2. D2 had delegated her duties for 3 Wells to Michael and that Michael had acted within D2’s actual and specific authority and within the scope of her delegation.\n70.\nAs I have ruled above that offences under section 114 created strict liability of 2\nnd\nalternative and the fact that D1 was a corporate body in the summons concerned, together with my finding that D2 had delegated her duty in respect of 3 Wells to Michael who had acted within D2’s delegation and authority, I consider that what Michael had done on 3 Wells was attributable to D1. In other words, D1 was liable for not only D2’s, but also Michael’s acts.\nWhat amounted to “advising on corporate finance”?\n71.\nIt is common ground that the meaning of “\nadvising on corporate finance”\nis defined in Part 2 of Schedule 5 of the Ordinance and the relevant part concerned in the present case in my view is confined only to the first part of subsection (a):\n“advising on corporate finance means giving advice-\n(a) concerning compliance with or in respect of rules made under section 23 or 36 of this Ordinance governing the\nlisting of securities\n….;\n72.\nOn reading the above extract of the definition, it seems that the provision aims at covering a wide range of areas of any advice given concerning compliance with or in respect of rules governing the listing of securities.\n73.\nAs analysed in paragraphs 61-64 above, I am of the view that what D2 and Michael did to 3 Wells before, during and after the 3 Wells Agreement was signed obviously amounted to advising on matters concerning compliance with or in respect of the rules governing the listing of securities. Although what D1 did fell short of what it had promised in the written agreement and what was expected from Cheuk. On the evidence, D2, Michael and his team were but trying to give assistance and advisory services on the listing matters for 3 Wells on behalf of D1. The services provided were generally in line with what D2 had promised to 3 Wells both in the oral and written agreements.\n74.\nDefence said that D2 was just using her experience and connections to line up a professional team for 3 Wells’ listing and that was it, which fell short of amounting to advising on corporate finance. I disagree with it. That in fact was just part of D2’s work. As said above, D2, after signing the 3 Wells Agreement, also sent her team headed by Michael, as testified by Cheuk and Lee, to have meetings with Cheuk, Lee and their department heads, both in Hong Kong and Mainland. They also helped to review a list of internal documents to access whether 3 Wells had the capability to be listed. Such advices were indeed given to them before D2 lined up the professionals for the listing of 3 Wells. After that, D2 (even for the first introductory meeting only as said by her) and Michael had also met up with Cheuk’s party and other professional intermediaries concerning 3 Wells’ listing.\n75.\nI do not accept Defence contention that D2 was not aware of Michael and his team’s doing all along. D2 was a professional in the securities industry and she was involved from the beginning until the end, although she was not the person who actually did most of the liaison or advisory work. This part will be considered in more details later in my verdict.\nDid D1 “carry on” a business in advising on corporate finance?\n76.\nAs to the meaning of “carrying on” a business, it was held in\nLee Yee Shing v Commissioner of Inland Revenue\n(2008) 11 HKCFAR 6\nat paragraph 38, that “whether something amounts to the carrying on a trade or business was a question of fact and degree to be answered by the fact finding body upon the consideration of circumstances.”\n77.\nFurther, it was held in\nHKSAR v Fung Yee Man\n[2001-2003] HKCLRT 464 by Deputy Judge Pang, as he then was, that:\n“A business must be “carried on” in order to become registrable, and the term “carry on” cannoted a degree of continuity. As a matter of common sense, a one-off sale and purchase transaction did not constitute “carrying on”.\n78.\nI have found above that what D2 and Michael had done amounted to giving advice on corporate finance, I still have to consider whether on the evidence D1 was “carrying on” a business in advising on corporate finance. Applying the principle set out in the abovecases\n,\nI do have reservation in concluding beyond all reasonable doubt that what D1 had factually done to 3 Wells could satisfactorily be regarded as “carrying on” a business in advising on corporate finance, although the evidence showed that it did at some stage, through Michael and D2, give 3 Wells “some bits and pieces” advisory service on its listing during the material times\n[45]\n. Cheuk testified that several months after the agreement had been signed, he realised that D1 actually did not do much in the listing process, as opposed to what he had expected. On the evidence, the advisory service provided by D1 to 3 Wells was abruptly terminated upon D1’s request around September or October 2012 before the agreement was completed. At that moment, 3 Wells was not able to be listed as originally scheduled. Analysed as the above, I acquit D1 of ESS 30671/2013 on the “carrying-out” offence\n[46]\n. As there is no commission of the relevant offence in section 114(1)(a), D2 must also be acquitted of the “attributable offence” of ESS 30672/2013 laid under section 390 of the Ordinance.\nThe “holding-out” offences (ESS 39231, 30673 & 30675 of 2013)\n79.\nAs stated above, the “holding-out” offence against D1\n[47]\nconcerned all three client companies.\nMeaning of “Holding- out”\n80.\nFrom the Hong Kong Bilingual Legal Dictionary, it is said that the term “hold out” means:\n“To represent or pretend. It is an offence for an unqualified, unlicensed or unregistered person to\nhold out\n,\nadvertise or represent that he or she is qualified or licensed to provide professional or regulated services”\nEvidence relating to 3 Wells\n81.\nOn the evidence set out above in paragraph 62, Cheuk said that before signing the 3 Wells agreement, D2 had asked him twice whether he would like to promote 3 Wells to a higher level, which he understood was to have 3 Wells being listed. D2 asked if Cheuk was interested to be instructed by her for such purpose which Cheuk understood D2 would act like a martial art instructor in the whole listing process of 3 Wells. Cheuk had actually considered this issue for about half a year, during which he had gathered information about other companies providing similar consultancy services concerning listing procedures and visited D2’s office to learn about the scale of her business.\n82.\nBefore the written agreement was signed, the payment terms and paying schedule were largely agreed. As to the scope of services to be provided by D1, D2 and Cheuk did not discuss it in details before signing the agreement. What Cheuk understood was that, apart from introducing the right professional parties to handle the listing process for 3 Wells, D2 and his team would also supervise or work together with other professional parties to ensure the listing process would be smooth.\n83.\nThe Defence disputed that Cheuk had actually not read every term of the agreement before he signed it which was firmly disagreed by him. Cheuk explained that what he told SFC that he did not care about the contract meant that he did not care about the company’s name, the scope of services in details and the date of the agreement. Neither did he care to check whether each term of the contract was duly carried out by D2 in the course of the process after signing the agreement. It was because he trusted D2 very much. But he did read and understand every term of the contract before he signed. After considering the content of his evidence as a whole and observing the way in which Cheuk was giving evidence, I accept all what Cheuk said in court and I found him a very honest and reliable witness.\n84.\nIn any event, what the court mostly concerned is not what Cheuk had understood, but what D2 had held herself out before, during and after she had signed the agreement. The terms stated therein the 3 Wells Agreement are clear and simple. D2 is educated and has been working in the profession of securities and futures for a long time. The agreement was prepared upon her instruction. The evidence also showed that there was abundant time for her to read and understand the contract before signing the agreement.\n85.\nApart from the conduct of D2 before and when she signed the agreement with 3 Wells, what she and Michael performed to 3 Wells after signing the agreement as stated above in paragraph 65 also supported the conclusion that, at the time when D2, on behalf of D1, signed the agreement, D1 did held itself out to 3 Wells as carrying on a business in advising on corporate finance. It was also in line with 3 Wells’ understanding all along until the termination of the contract.\n86.\nThe fact that D1, urgently and strangely, requested 3 Wells to terminate the agreement also strengthened the inference that D1 did at the outset held out to 3 Wells as carrying on a business in advising on corporate finance which was later discovered to be unlawful and needed to be terminated.\n87.\nIn light of the foregoing, I have no hesitation to conclude that D1 did, at the time when the 3 Wells Agreement was signed, hold itself out to 3 Wells as carrying on a business in advising on corporate finance.\nWhat if Michael’s acts do not count?\n88.\nEven if I were wrong in concluding D1 should be liable for Michael’s acts, I still found that D2 being the “directing mind and will” of D1, had held herself out to 3 Wells as carrying on such a business.\n89.\nTaking into account the above facts concerning the acts of D2 alone performed to 3 Wells before, during and after the agreement was signed together with other circumstantial evidence, in particular her background and the clear content of the 3 Wells Agreement as set out above at paragraphs 59-65 and analysed at paragraphs 81-86, I am sure that D1 did, at the time when the 3 Wells Agreement was signed, hold itself out to 3 Wells as carrying on a business in advising on corporate finance.\nEvidence relating to UK Fur\n90.\nThe Prosecution only called PW3, P WONG, the Chairman and executive director of UK Fur, which was in the business of fur trading. P WONG knew D2 for over 20 years. P Wong’s evidence was relatively brief. What D2 had done to UK fur included:\n(a) D1 entered into a “Professional Financial Services Consultation Agreement”\n[48]\nwith UK Fur signed by P Wong and D2, on or around 20 October 2010;\n(b) The draft of the above agreement was prepared by Michael which was sent\n[49]\nto D2 for consideration before signature. After three days, D2 replied Michael, by way of email, that the draft had no problem. D2 also emphasised to Michael to make sure the payment would be well received;\n[50]\n(c) The UK Fur Agreement contained very similar terms as the one signed with 3 Wells which included:\n- The agreement was named as\n“Professional Financial Services Consultation Agreement\n”;\n- Engaging D1 as UK Fur’s\n“exclusive financial adviser”\nin relation to its listing in Hong Kong (Clause 1);\n- Purporting to provide very similar scope of\nadvisory services\nas stated in Clause 2;\n- Providing for payment of $600,000 and the granting of share options equivalent to 1.5% of the number of issued shares upon successful listing as stated in Clause 5 by UK Fur to D1 which were for the latter acting as the “\nfinancial adviser”\n;\n- The payment of costs to other professional listing-related intermediaries, e.g. lawyers, accountants and listing managers, were to be separately and additionally paid by UK Fur\n[51]\n;\n- The\nadvisory services\nshall span over the financial accounting years from 2009 to 2011.\n[52]\n(d) UK Fur had paid a total sum of $600,000\n[53]\nto D1 in 4 instalments as stated in Clause 5 of the agreement;\n(e) During the oral discussion with D2 before signing the agreement, P Wong said that D2 only had offered services of lining up of a team of professionals for the listing matters, which he agreed upon cross examination that was what he expected too;\n(f) P Wong admitted that he knew nothing about the listing procedures;\n(g) When signing the agreement, although he had read it, he did not understand the content of it;\n(h) On 26 October 2011\n[54]\n, UK Fur and D1 entered into a Supplemental Agreement\n[55]\n. This agreement varied the payment terms under clause 5 of P2 in that the consideration for the services was changed from $600,000 to $700,000. However, the additional $100,000 was not paid to D1;\n(i) D2 introduced various professional parties to UK Fur including lawyers, accountants and sponsors for the listing process;\n(a) By a Confirmation Letter dated 18 November 2011\n[56]\n, signed by D2 and P WONG, the parties confirmed that D2 did not and would not perform the services stated in the original agreement. Instead, there was a totally different list of other services stated therein the letter that D1 had and would provide during the contractual period;\n(b) Further, the role of D1 being a “financial advisor” was changed to “financial consultant” pursuant to the Confirmation Letter.\n(c) P Wong said that the confirmation letter was prepared on the advice of the Sponsor of UK Fur’s listing application as it was said that the services stated in clause 2 of the original agreement should have been provided by the sponsor but not D1;\n(d) UK Fur’s holding company was listed on the GEM board of SEHK on 24 August 2012;\n(e) On 1 August 2012, UKF Holdings granted an option of $14,400,000 shares equivalent to 1.5% of the number of issued shares in favour of D1 at the exercise price of $0.26. On 2 August 2012, D1 accepted the option in a letter signed by D2 on behalf of D1\n[57]\n91.\nGiven the unequivocal terms stated in the contract signed between D2 and P Wong, I consider that there is sufficient evidence to show that D2 did hold itself out to UK Fur as carrying on such business in advising on corporate finance. I note that P Wong said that he did not understand the terms of the contract and expected D2 did nothing more than the introductory service. However, what the court concerned the most was what D1 had held itself out to be. I must say that I did have reservation on some part of the evidence of given by P Wong, who was a good friend of D2 for more than 20 years, concerning what he understood about the scope of services provided by D2 before the agreement was signed. The court is entitled to accept part of the evidence given by a witness. In any event, the clear representation stated on the written agreement\n[58]\nshould be considered as the most forceful and reliable evidence of what parties were agreeing and representing.\n92.\nDefence said that P Wong’s understanding of what D2 said orally was in contrast with what was stated in UK Fur Agreement. Normally, the written contract should be considered as overriding if there is any discrepancy between the oral and written agreement. For example, in D2’s evidence, she orally agreed with the respective clients that she would charge around HKD$50,000 each month for her services. But in all the agreements concerned, the payment terms stated therein were quite different from what she told the clients before. This also showed that D2 intended to finalise all the terms of her service with her clients in the written but not the oral agreement.\n93.\nStrangely enough, the term about “Scope of Services” (Clause 2) has been substantially amended and the role of D1 being a “financial advisor” was changed to “financial consultant” by way of a Confirmation Letter\n[59]\ndated 18 November 2011 after almost 13 months when the UK Fur Agreement was firstly signed. A compelling inference could be drawn that either the advisory services stated in Clause 2 of the original agreement had not actually been carried out or should not have been carried by D1, which was somehow discovered and needed to be rectified by UK Fur during the listing process. In either situation, it further supported the irresistible inference that D1 did, at the time when signing the contract, hold itself out to UK Fur as carrying on a business in advising on corporate finance. On the other hand, the fact that, D1 did, at some stage after signing the agreement and performing part of the unregulated activity, try to rectify its legal status with UK Fur only showed that it might not be aware what it/D2 was doing was not permitted by the law. However, ignorance of law is no defence.\n94.\nClearly, section 114 does not only target those who actually carried on a business in the regulated activity but also those who held itself out to others as carrying on such business. In light of the unequivocal terms set out in the UK Fur Agreement and the other circumstantial evidence as set out above, I am sure that D1, at the time when the UK Fur Agreement was signed, actually held itself out as carrying on the business in advising on corporate finance.\nEvidence in relation to New Bonus\n95.\nThe Prosecution only called PW4, KF WONG, another friend of D2 and also the director of New Bonus, which was in the business of selling luxury yachts. His evidence was quite similar to what was given by P Wong of UK Fur. On the evidence, what D2 had done to New Bonus included:\n(a) Around the end of December 2010 and early January 2011, KF WONG on behalf of New Bonus entered into a Professional Financial Services Consultation Agreement\n[60]\nwith D2 signing on behalf of D1;\n(b) The New Bonus Agreement was also in very similar terms as 3 Wells Agreement\n[61]\nand UK Fur Agreement\n[62]\nwhich included:\n- The agreement was named as\n“Professional Financial Services Consultation Agreement\n”;\n- Engaging D1 as New Bonus’s\n“exclusive financial adviser”\nin relation to its listing in Hong Kong (Clause 1);\n- Purporting to provide very similar scope of\nadvisory services\nas stated in Clause 2;\n- Providing for payment of $680,000 and the granting of share options equivalent to 3% of the number of issued shares upon successful listing as stated in Clause 5 by New Bonus to D1 were for the latter acting as the “\nfinancial adviser”\n;\n- The cost for other professional parties were to be separately and additionally paid by New Bonus;\n- The\nadvisory services\nshall span over the financial accounting years from November 2011 to December 2012.\n[63]\n(c) D1 was paid $170,000 by New Bonus within 10 days after the written agreement was signed;\n(d) KF WONG said, upon cross-examination, that before signing the written agreement, he and D2 did discuss about D2 introducing professional parties to New Bonus for the listing application and that he himself did not expect D2 to provide other services regarding the listing process.\n96.\nI have to consider whether D2, on behalf of D1, by signing of an unequivocal written agreement as well as providing the introductory services to New Bonus could amount to “holding-out” in carrying on a business in advising on corporate finance. Clearly, D2, on behalf of D1, did represent in the New Bonus Agreement that services of advising on corporate finance would be provided to New Bonus. In fact, the first instalment of $170,000 was paid to D1 by New Bonus shortly after the agreement was signed. The listing application of New Bonus was somehow not proceeded with, but part of the services, namely the introductory service as specified in Clause 2 had been provided by D2 as admitted by her. In light of all the evidence concerning what D2, on behalf of D1, had done to New Bonus before, during and after the signing of the New Bonus Agreement, I have no hesitation to conclude that D1, at the time when the contract was signed, did hold itself out to New Bonus as carrying on the business in advising on corporate finance.\n97.\nDefence said that KF Wong himself did not expect D2 would provide services other than the introductory services. As what I have said earlier, the court is mostly concerned of what D2 was doing on behalf of D1. Although KF Wong testified that during prior discussion what he understood from D2 was that she would be introducing some professional parties for the New Bonus’s listing, but that would not negate the clear fact that D2, on behalf of D1, had later on by way of an unequivocal written agreement\n[64]\nheld herself out as carrying on the business in advising on corporate finance. I therefore consider that D1 had at the material time held itself out to New Bonus as carrying on the business in advising on corporate finance.\nCan the defence be made out by D1 factually?\n98.\nI pray in aid of the holding in\nHKAR v Adams Secuforce (International) Limited\n[2008] 1 HKLRD 207\n[65]\nrelating to the steps in considering the defence of “reasonable excuse”:\n“the defence of “reasonable excuse” had first to be examined and identified; secondly, that it was necessary to determine whether the excuse was genuine; and thirdly, an assessment was necessary to determine if the excuse was reasonable. The Court said that the defendant's belief or his state of mind were relevant factors and may afford some assistance to the trier of fact but the final answer must always come from an objective assessment of the particular facts of each case. The Court said that that assessment required a consideration of not merely the defendant's belief and state of mind but it required the application of community standards.”\n99.\nIn a recent case\nHKSAR v Li Fung Ching Catherine\n[2012] 3 HKLRD 377\n, the Court of First Instance also held that\n[66]\n:\n“In relation to non-payment of wages under\nsection 23\nof the\nEmployment Ordinance\n, the question of “reasonable excuse” should be considered from the perspective of a reasonable man, namely whether there was a cause which a reasonable man would regard as an excuse, consistent with a reasonable standard of conduct. Regard must be had to the objective of the Ordinance, which was to provide for the protection of the wages of employees.”\n100.\nIn reaching my conclusion as to whether the defence could be made out factually, I bear in mind the principles above and the objective of the Ordinance in question which is to protect the investors and regulate the industry of securities and futures. The defence contended that D2 firstly, was not aware of the content of all the agreements she had signed with the respective clients and secondly, did not know what Michael had done to 3 Wells. I have to consider whether the defence has successfully proved the above two assertions, if unrebutted, could amount to a “reasonable excuse” (i.e. the statutory defence) or an honest belief on reasonable grounds that what she did was not holding herself out as carrying on a business in advising on corporate finance (i.e. the common law defence).\n101.\nD2 elected to give evidence and I accept that the evidential burden for both statutory and common law defence has been satisfied by the defence. What I have to do next is to consider whether the prosecution could successfully rebut, beyond all reasonable doubt, that what was said by D2 in her evidence could never be a “reasonable excuse” (\nstatutory defence\n) nor in any way an “honest belief on reasonable grounds” (\ncommon law defence\n).\nDid D2 know the content of the agreements?\n102.\nAs narrated earlier, D2 is an educated lady and understands English. She has been dealing in the securities industry for years and her own company has gone through the process of listing in 2009-2011. She testified that the three agreements in question\n[67]\nwere prepared by Michael on her request but she did not have chance of reading through them in details before signing. She said she had told Michael to look for similar agreement which provided only introductory services for listing. On the evidence, the draft of UK Fur Agreement was sent to D2 by Michael for her perusal.\n[68]\nThe draft was subsequently approved by her as showed from the e-mail he replied to Michael.\n103.\nD2 however told the court that the first time when she had a chance to read the terms in details of the three respective agreements was when she was asked to do so during her evidence-in-chief in court. She said what she concerned the most was to get money from the clients on time and she was not concerned with other terms of the agreement because the three clients were all her friends. She even told the court that the agreements were not important. She also excused that she was just too busy, both in family and work, to read the content of the agreements.\n104.\nI must say that D2’s above assertions in court were in my view no more than a pack of lies. Being such a professional in the industry, how can one believe that she would not read carefully the terms before signing the contracts? D2 said what she concerned the most was the receipt of payment which could most effectively be showed and enforced in the agreements. Payment could only be collected when the duties of D1 was duly performed as specified in the agreement. Therefore, both the terms of payment and scope of services were equally important. D2’s saying that she only had a glance on the payment clause but not other terms was totally unreasonable. The most utterly unbelievable part was that she only read it for the very first time when she was giving evidence in court. How could one believe such a dishonest and ridiculous piece of evidence?\n102. At least, D2 would read the agreements when she was informed, on two occasions, that the same had problems. Regarding UK Fur’s case, a Supplemental Agreement\n[69]\ndated 26 October 2011 and Letter of Confirmation\n[70]\ndated 18 November 2011 were signed by both parties, specifying the substantial changes of scope of services and the role of D1. Similarly, in the case of 3 Wells, a letter back-dated to 31 May 2012\n[71]\nto terminate the original 3 Wells Agreement was received by her in late 2012. D2 although admitted that she had received all the abovesaid documents denied that she had paid much attention to the same. That again in my view defies all common sense. The above documents were unusual in nature and hardly can one be convinced that D2, being the directing mind of the party concerned of the agreements, would not have paid any attention to them. It is wholly unconvincing that D2 have not read again what she had signed when the terms of the agreements had been substantially changed. It is also absurd that D2 would not have read the contracts again when she was being investigated by SFC which was well before giving evidence in court.\n105.\nIn any event, I do not believe that D2 have not read through the respective agreements before she signed each of them. There is no evidence suggesting she was in a rush at all. As a matter of fact, the first draft of UK Fur Agreement was sent to her email account by Michael for her perusal and was approved three days later.\n[72]\nIn 3 Wells’ case, Cheuk said that after he signed the 3 Wells Agreement, the same was sent to D2’s office for her signature. In both cases, D2 had plenty of time to read and understand the agreements before signing.\n106.\nAlthough Michael did not give evidence, D2’s evidence did not suggest any ground that Michael, being her reliable agent all along, would depart from her instructions on preparing the appropriate agreements without any reasons. On the other hand, D2 said that she had known Michael for a long time and that she regarded Michael as a very competent assistant of her who could handle things very well. These must be the reasons why D2 would employ him as the company secretary before and in the present case the person responsible for most of the dealings with the clients concerned. D2 said Michael was very familiar with the listing procedures and she herself also had the experience and knowledge of the same as CL Group had gone through the listing process before. I have no doubt that the agreements must have been prepared according to D2’s instructions.\n107.\nIf D2’s evidence were true, all the agreements prepared by Michael turned out to be substantially departing from her instructions. If the services D2 intended to provide were just so simple as alleged by her, why Michael would not have just drafted an agreement with very simple terms but acted against D2’s instructions and prepared a much more detailed one instead? On the evidence, all the money was firstly paid to D1 and the substantive work was mostly done by Michael. What was the point for Michael to perform so much more arduous duties for the clients if the same amount of money would be received by D2 and him by just doing the introductory services? This is again illogical.\n108.\nD2 also testified that as she trusted Michael very much and she was very busy both at work and family, she simply did not care to read through them but just signed them right away. Such excuses are unacceptable to me. It is entirely improbable that D2 would not have read such clear and comprehensible terms even once. Each agreement contained only several pages and the terms were all very similar, clear and easy to understand. D2’s such excuse/belief was neither reasonable nor honest at all in my view. I am sure that D2 must have full knowledge of the content of all the agreements in question.\n109.\nAlso, after signing the contract, D2 was still involved in the process, at least by introducing the professional parties for and attending the first meeting with the respective clients as she testified. The receipt of payment on schedule did further infer that what she signed was what she meant. Further, the considerable monetary remuneration, let alone saying the granting of share options, received by D1 from the clients was incompatible to D2’s allegation that she intended to provide and had provided introductory services only. From Cheuk’s evidence, he did conduct some research on the fees charged for similar advisory services for listing provided by other companies which ranged from $300,000 to $500,000. Defence submitted that the prosecution should have called independent evidence to prove the normal charges for such advisory service for listing before one could comment on the reasonableness of the costs charged by D1 for the introductory service, I consider common sense, Cheuk’s evidence and other circumstantial evidence suffice to rebut D2’s assertion that the cost D1 had received from the clients only intended to cover introductory and liaison services.\n110.\nWith the above reasons, I am of the view that the prosecution has successfully rebutted beyond all reasonable doubt that D2’s assertion that she was not aware of the content of the agreement concerned when she signed each of them. The allegation of such “belief” or “excuse” was neither honest/genuine nor reasonable.\nDid D2 know what Michael was doing on her behalf\n111.\nRegarding D2’s contention that she was not aware of Michael’s acts on 3 Wells, it is also improbable and illogical to me. Michael was her able assistant, receiving a handsome amount of monetary remuneration i.e. almost half of what D1 had received\n[73]\n. Michael and D2 were working in the same office at least for the project of 3 Wells, as Cheuk testified that he did see Michael whenever he visited D2. And it was always Michael receiving and discussing the matters with him. Cheuk said clearly that the first staff D2 had introduced to him was Michael. All along, Cheuk understood Michael was acting on D2’s behalf. No one has ever informed 3 Wells that the relationship between D2 and Michael had changed in any way.\n112.\nIt was D2’s admission that she had entrusted Michael to look into the internal information of 3 Wells to assess its capacity to be listed for her own benefit but not for 3 Wells. It was said by defence that as Cheuk had testified that 3 Wells already “knew” that they were capable of being listed and therefore there was simply no need for 3 Wells to be advised by D1 on the listing matter. This submission, with respect, was convoluted and misleading in my view. I find that D2 was simply trying to explain away the fact that Michael had on the undisputed evidence looked into 3 Wells’ internal audit and gave advice as to its ability for listing. Although Cheuk was confident about his own company, it did not mean that he did not need D1’s advice on its capacity and procedures to be listed. In fact, that was the whole purpose for Cheuk to engage D1 as he was not familiar with the listing procedures and manpower and he did believe D2, like a martial art instructor as said more than once by Cheuk, had the ability to advise 3 Wells on the listing process as a whole. The assertion of D2 that the assessment of listing capacity of 3 Wells by Michael was only for her but not 3 Wells was without force.\n113.\nFurther, when Michael telephoned Lee to discuss the urgent request for termination of 3 Wells Agreement, the finalised letter was sent to and received by D2. All these could provide the court with sufficient evidence to draw an irresistible inference that D2 was well aware of Michael’s acts to 3 Wells all along and that Michael was acting with D2’s actual and specific authority at all material times. I am satisfied that the prosecution has disproved beyond reasonable doubt that the allegation of honest and reasonable belief/excuse that D2 was not aware of Michael’s doing and therefore thought that she was not holding out as carrying on the business in advising on corporate finance does not exist. Neither is such excuse/belief, if ever existed, relied on reasonable.\n114.\nAs such I consider the prosecution has proved beyond reasonable doubts all the elements of all “holding-out” offences against D1 and rebutted beyond reasonable doubt all the possible defences. I therefore convict D1 of summonses ESS 30673, 30675 and 39231 of 2013.\nFallback position--- Did D1 have\nmens rea\nin the “holding-out” offences?\n115.\nIf I were wrong in ruling the “holding-out” offence against D1 under section 114 as creating strict liability falling within the category of second alternative, meaning the offences in fact require proof of full\nmens rea\non the part of D1, I still find D1 guilty of the offences.\n116.\nOn the evidence, as I have analysed as above which I do not intend to repeat, it showed clearly that D2, being the directing mind of D1, knew full well the content of all the Professional Financial Consultancy Agreement signed with the three respective clients. She was clearly in control of D1 and she was the one who received the payments and then shared almost half of it with Michael in each and every case. Cheuk and Lee of 3 Wells said that they understood Michael was all along working on behalf of D1/D2. I am sure that what Michael did to the clients was all within D2’s authority and delegation. Further, she was also responsible for using her own connection and knowledge to introduce the professional teams for her clients’ listing applications. D2 must have knowledge that D1 did represent itself as carrying on a business in advising on corporate finance. When signing the respective agreements, D1, with D2’s directing mind, did intend to hold itself out to all respective clients as carrying on a business in advising on corporate finance which were clearly shown in the agreements and supported by all the circumstantial evidence.\nSummonses against D2\n117.\nAs I have found D1 guilty of summonses ESS 30673, 30675 and 39231of 2013 laid under section 114(1) and (8) of the Ordinance, I now move on to consider whether D2 should be liable for the respective “attributable” offences on the same facts laid against her under section 390.\n118.\nIt is stipulated in section 390 of the Ordinance that:\n“1) Where the commission of an offence under this Ordinance by a corporation is proved to have been aided, abetted, counselled, procured or induced by, or committed with the consent or connivance of, or attributable to any recklessness on the part of, any officer of the corporation, or any person who was purporting to act in any such capacity, that person, as well as the corporation, is guilty of the offence and is liable to be proceeded against and punished accordingly.”\n119.\nIn Schedule I of the Ordinance, “officer” in relation to a corporation is defined as:\n“officer (高級人員)-\n(a) in relation to a corporation, means a director, manager or secretary of, or any other person involved in the management of, the corporation;”\n120.\nThe meaning of “connivance” has been considered, at paragraphs 60-65, in\nHKSAR v Li Fung Ching Catherine\n[2012] 3 HKLRD 377\n:\n“60. The terms used in\ns.64B\nof the\nEmployment Ordinance\nare \"consent\", \"connivance\" and \"neglect\". It is spelt out clearly that the intention is to target the three different situations.\n61. In the Ordinance, there is no definition given to the term \"connivance\". Therefore, the term \"connivance\" should be interpreted in accordance with its usual meaning.\n62.\nThe New Longman Advanced Chinese Dictionary\ndefines the word \"connivance\" as indulgence and non-interference of misconduct.\n63. To connive at someone's act, whether or not one agrees or disagrees with it is not important, what is important is one fails to stop it from happening knowingly.\n64. The term \"connivance\" is used in the English version of the Ordinance. According to the\nShorter Oxford English Dictionary\n, the definition of \"connivance\" includes assistance in wrongdoing by conscious failure to prevent or condemn; or tacit permission. The word \"connive\" means shutting one's eyes to (something) .\n65. In the\nEnglish-Chinese Dictionary\nof Joint Publishing, \"connivance\" carries the meaning of \"turning a blind eye to an action one ought to oppose; and tacit permission\" which corresponds with the translation given in\nThe Oxford\n(one wrong character)\nEnglish-Chinese Dictionary.”\n121.\nIt is not in dispute that D2 was an officer of D1 at the material times. As I have ruled above that D2 did have knowledge of what D1, with the assistance by Michael, was doing all along and the content of the respective agreements, I have no difficulty at that to conclude that all the “holding-out” offences under section 114 could not have been committed by D1 without the assistance or consent or connivance of D2. The whole thing was procured and induced by D2 as elicited in the trial. At the very least, the commission of the offences must be attributable to the recklessness on the part of D2. As such I find that the commission of the offences by D1 were all aided, abetted, counselled, procured or induced by, or committed with the consent or connivance of, or attributable to any recklessness on the part of D2. Without any doubt, I find D2 guilty of all the summonses laid against her under 390 offences in respect of each of convicted offences stated above. In other words, I convicted D2 of summonses nos. ESS 30674, 30676 and 39232 of 2013 accordingly.\nConclusion\n122.\nTo conclude, I am satisfied that the prosecution has proved beyond all reasonable doubt that D1 is guilty of summonses nos. ESS 30673, 30675 and 39231 of 2013 and D2 is guilty of summonses nos. ESS 30674, 30676 and 39232 of 2013 accordingly.\n(June Cheung)\nMagistrate\nRepresentation :\nMiss PO Wing-kay, instructed by the Securities and Futures Commission, for the Prosecution\nMr Peter Duncan, SC and Mr Edwin Choy, instructed by Haldanes, for D1 and D2\n[1]\nESS 30671, 30673, 30675 of 2013 and 39231 of 2013 being an alternative to ESS 30671/2013\n[2]\nIn contravention of sections 114(1) (a) and 114(8) of the\nSecurities and Futures Ordinance\n,\nCap 571\n(“the Ordinance”)\n[3]\nIn contravention of section 114(1) (b) and (8) of the Ordinance\n[4]\nIn contravention of section 114(1) (b) and (8) of the Ordinance\n[5]\nESS 30672, 30674, 30676 of 2013 and 39232 of 2013 being a summons alternative to ESS 30671/2013\n[6]\nIn contravention of section 390 of the Ordinance\n[7]\nESS 30673/13 concerning UK Fur: $400,000; ESS 30675/13 concerning New Bonus: $200,000; ESS 39231/13\nconcerning 3 Wells: $300,000\n[8]\nESS 30674/13 concerning UK Fur: $300,000; ESS 30676/13 concerning New Bonus: $100,000; ESS 39232/13\nconcerning 3 Wells: $200,000\n[9]\nESS 30674/13 concerning UK Fur: 3 months; ESS 30676/13 concerning New Bonus: 3 months; ESS 39232/13 concerning 3 Wells: 6 months, all imprisonment to be served wholly concurrently.\n[10]\nThe issues of immunity and/or risk of Michael incriminating himself when giving evidence were actually raised by the court at the outset of the trial after Prosecution’s opening. SFC replied to the court, with no satisfactory reasons given, that such matter was still in the process of exploring and could not be decided until the last minute when Michael was called. Michael’s refusing to give evidence, on his own initiative, after taking oath due to obvious risk of incriminating himself was out of prosecution’s expectation. It was however obviously revealed in Prosecution’s opening (\nsee para.35 and 36 of Prosecution’s Opening\n) that Michael’s involvement would incriminate himself without the protection of an immunity. Those matters should have been thoroughly considered and settled well before trial. The court has expressed its concern to SFC that such undesirable situation should not recur in future.\n[11]\nExhibit P13 and P14\n[12]\nExhibit P21 and P22\n[13]\nExhibit P25, the letter was back-dated to 31 May 2012 upon request by Michael\n[14]\nConcerning summons ESS 30671/2013 and alternative summons ESS 39231/2013\n[15]\nConcerning summons ESS 39672/2013 and alternative summons ESS 39232/2013\n[16]\nExhibit P11\n[17]\nExhibit P2, P12 and P26\n[18]\nHin Lin Yee\nat paragraph 139\n,\nquoting\nGammon (Hong Kong) Ltd v Attorney General of Hong Kong\n[1985]\n1 AC 1\nat paragraph14\n[19]\nParagraphs 139-142 of\nHin Lin Yee\n[20]\nKulemesin Yuriy\nat paragraph 59 and\nHin Lin Yee\nat paragraph 141, quoting\nHe Kaw Teh v The Queen\n(1985) 157 CLR 523\nat paragraph 535,\n[21]\nKulemesin Yuriy\nat paragraph 107\n29 Exhibits D3, D4 and D16\n[22]\nPage 196 of\nHin Lin Yee\n[23]\nParagraph 91 of Securities and Futures Commission and Liu Su Ke\n[2010] 2 HKLRD 673\n[24]\nParagraph 28 of Securities and Futures Commission v Yu Ka Tak [2007] HKCLRT 728\n[25]\nParagraph 23 of Defence’s Closing Submission\n[26]\nParagraph 164 of\nHin Lin Yee\n[27]\nApplying paragraph 109 of\nKulemesin Yuriy\ncase\n[28]\nAdmitted Facts, paragraph 2.\n[29]\nExhibit P12\n[30]\nThe paragraph right after the name of Parties and Clause 1 “Engagement”\n[31]\nSub-clause (6) of Clause 2\n[32]\nSub-clause (11) of Clause 2\n[33]\nExhibit P14\n[34]\nGeoffrey Wong was also known as Wong Chi Fai in the email concerned\n[35]\nExhibit 15, page 56 of Exhibit Bundle\n[36]\nThe documents included MFGpro System work flow, Quality manual, dales cycle notes, purchase cycle notes, inventory cycle notes, shipment notes, the accounting entry flow and the payment and approval procedure and system notes for expenses, fixed asset cycle, treasury cycle and financial accounting cycle. Please see exhibit P15.\n[37]\nExhibit P16\n[38]\nThe documents included 3 Well’s organisation chart, history and development, projected profit and loss for 2011 and list of directorship and ownership: please see Exhibit P18\n[39]\nExhibit P17\n[40]\nExhibit P19\n[41]\nExhibit P20\n[42]\nExhibit P21\n[43]\nFirst draft: Exhibit P23; Amended version by Cheuk: Exhibit P24 and final version: Exhibit P25\n[44]\nExhibit P25\n[45]\nParagraph 61 referred\n[46]\nContrary to section 114 (1)(a) of the Ordinance\n[47]\nUnder section 114(1) (b) of the Ordinance\n[48]\nExhibit P2\n[49]\nThe email attaching the draft agreement was sent by Michael to D2 on 8 October 2010\n[50]\nExhibit P1\n[51]\nSub-clause (6) of Clause 2\n[52]\nSub-clause (12) of Clause 2\n[53]\nRespective cheques were paid on 20 October 2010 (P3), 17 January 2011(P5), 4 April 2011 (P7) and 30 June 2011 (P9)\n[54]\nAbout 1 year after signing the UK Fur Agreement (Exhibit P2)\n[55]\nExhibit P2A\n[56]\nExhibit P2B, signed about 13 months after the UK Fur Agreement (Exhibit P2)\n[57]\nExhibit P11\n[58]\nExhibit P2\n[59]\nExhibit P2B\n[60]\nExhibit P26\n[61]\nExhibit P12\n[62]\nExhibit P2\n[63]\nSub-clause (12) of Clause 2\n[64]\nExhibit P26\n[65]\nThe court relied on a New Zealand case of Oosterman v New Zealand Police [2007] NZAR 147 where Harrison J quoted the case of Mark & Others v Henshaw\n(1998) 85 FCR 555\n(FCA).\n[66]\nHKSAR v Ching Yeung Development Co Ltd\n[2001-2003] HKCLRT 343 applied.\n[67]\nExhibits P2, P12 and P26\n[68]\nExhibit P1\n[69]\nExhibit P2A\n[70]\nExhibit P2B\n[71]\nCheuk said the letter was sent to D1 (attention to D2) in around October 2012\n[72]\nExhibit P1\n[73]\nD2 told the court that she gave Michael $300,000 out of $600,000 she had received from UK Fur, $150,000 out of $300,000 received from 3 Wells, and several ten thousand dollars out of $170,000 from New Bonus.", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2013/ESS030671_2013.doc", + "file_name": "ESS030671_2013.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkmagc/2014_HKMagC_6/case.json b/en_cases_hkmagc/2014_HKMagC_6/case.json new file mode 100644 index 0000000..c91a17a --- /dev/null +++ b/en_cases_hkmagc/2014_HKMagC_6/case.json @@ -0,0 +1,32 @@ +{ + "Date": "9 Apr, 2014", + "Action No.": "KCS4911/2013", + "Neutral Cit.": "[2014] HKMagC 6", + "case_title": "HKSAR V. HO CHUNG YI HENRY AND OTHERS", + "page_title": "HKSAR V. HO CHUNG YI HENRY AND OTHERS | [2014] HKMagC 6 | HKLII", + "case_history": [ + { + "name": "KCS4911/2013", + "link": "https://www.hklii.hk/en/appealhistory/KCS/2013/4911" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkmagc/2014/6", + "neutral_cit": "[2014] HKMagC 6", + "court_code": "HKMAGC", + "content": "KCS 4906-4911/2013\nIN THE KOWLOON CITY MAGISTRATES’ COURTS OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCASE NO. 4906, 4907, 4908, 4909, 4910 AND 4911 OF 2013\n--------------------------\nHKSAR\nv\nHO CHUNG YI HENRY\n2nd Defendant\nWONG PAK LAM\n3rd Defendant\nHIEN LEE ENGINEERING COMPANY LIMITED\n4th Defendant\n--------------------------\nCoram: Chief Magistrate, Mr Clement Lee\nDates of hearing:\n27 November to 17 December 2013 (15 days), and\n10 to 17, 20 February 2014 (8 days)\nDate of verdict: 9 April 2014\nDate of corrigenda: 11 April 2014\n--------------------------\nCORRIGENDA\n--------------------------\nPlease note the following corrigenda in the Reasons for Verdict dated 9 April 2014 : -\n(1)Page 63, Paragraph 174 of the Reasons for Verdict, Line N to Line O: -\n“… According to PW8, the normal result for PR should be 2 or more. The normal result for LDR should be within the range of 0.15 to 2. …”\nshould read as\n“… According to PW8, the normal result for LDR should be 2 or more. The normal result for PR should be within the range of 0.15 to 0.2. …”\n(2) Page 63, Paragraph 174 of the Reasons for Verdict, Line Q to Line R: -\n“… One may note that regarding PR, only sample no. S3 has the figure closes to 2.”\nshould read as\n“… One may note that regarding PR, only sample no. S3 has the figure closes to 0.2.”\n(3) Representation : -\n“Mr Tony Jenkyn-Jones” should read as “Mr Toby Jenkyn-Jones”\nDated this 11\nth\nday of April 2014\n(Jenny Cheng)\nClerk to Chief Magistrate", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2013/KCS004906_2013.doc", + "file_name": "KCS004906_2013.doc", + "file_ext": ".doc", + "status": "success" + }, + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2013/KCS004906M_2013.doc", + "file_name": "KCS004906M_2013.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkmagc/2014_HKMagC_7/ESS030671_2013_abp_fallback.txt b/en_cases_hkmagc/2014_HKMagC_7/ESS030671_2013_abp_fallback.txt new file mode 100644 index 0000000..d9a5c28 --- /dev/null +++ b/en_cases_hkmagc/2014_HKMagC_7/ESS030671_2013_abp_fallback.txt @@ -0,0 +1,70 @@ +ESS 30671-30676/2013 ESS 39231-39232/2013 IN THE EASTERN MAGISTRATES COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CASE NO. ESS 30671-30676 OF 2013 AND ESS 39231-39232 OF 2013 Securities and Futures Commission v C.L. Management Services Limited 1st Defendant AU Suet-ming, Clarea 2nd Defendant ---------------------- Coram : Magistrate, June Cheung Dates of hearing : 27-28 February, 3 March and 3 April 2014 Date of verdict : 29 April 2014 Date of statement of findings : 11 June 2014 ---------------------- STATEMENT OF FINDINGS Introduction The Summonses In the present case, a total of 8 summonses have been laid against C.L. Management Services Limited (“D1”), a company registered in Hong Kong +and Madam AU Suet-ming, Clarea (“D2”), being the sole shareholder and director of D1. The summonses are summarised as follows: Summonses against D1 (four summonses in total): ESS 30671/2013 and alternative summons ESS 39231/2013: It is alleged that D1, without reasonable excuse, has carried on a business in a regulated activity, namely, advising on corporate finance, in relation to a client company, 3 Wells Group holdings Limited (“3 Wells”) without licence (ESS 30671/2013). Alternatively, it is alleged that D1 has held itself out to 3 Wells as carrying on a business in advising on corporate finance(ESS 39231/2013); ESS 30673/2013 and 30675/2013: it is alleged that D1 has respectively held itself out to another two client companies, UK Fur Limited (“UK Fur”) and New Bonus Holdings Limited (“New Bonus”) as carrying on a business in advising on corporate finance. Summonses against D2 (four Summonses in total): It is alleged that D2, being an officer of D1, has aided, abetted, counselled, procured or induced D1 in committing the above offences under section 114 of the Ordinance, or these offences were committed with the consent or connivance of D2 or was attributable to her recklessness. + I convicted, after trial, D1 of three summonses, i.e. ESS 39231/2013, 30673/2013 and 30675/2013 concerning the “holding- out” offences under section 114(1)(b) of the Ordinance and D2 of the three corresponding attributable offences under section 390 (summonses ESS 39232/2013, 30674/2013 and 30676/2013). Upon conviction, I imposed fines in a total sum of $900,000 and $600,000 on D1 and D2 respectively. I also sentenced D2 to a total term of imprisonment for 6 months suspended for 18 months. D1 and D2 now appeal against both their convictions and sentences. The Issues The main issues on the law raised at trial are: Whether the summonses against D1 are strict liability offences? and if so, what defence is available and the burden of proof? Whether the term “without reasonable excuse” under section 114(8) creates an element of the offence or a defence only? Could D1 be liable for acts of Michael, being D2’s agent? While the issues on the evidence are: Was Michael acting on behalf of D2 within her actual and specific authority to give advice on corporate finance? +Whether D1 was “carrying on” the business in advising on corporate finance in respect of its dealing with 3 Wells? Whether D1 was “holding out” as carrying on such business in advising on corporate finance in respect of its dealings with the three clients concerned? Could the defences, if any, be factually made out by D1/D2, i.e. 1) did D2 know the content of the agreements or 2) did D2 know what Michael was doing on her behalf? Background The Prosecution case The facts of the case are largely undisputed. The prosecution case mainly relied on the evidence given by four prosecution witnesses. They were either the chairmen/senior officers of the 3 respective client companies. Mr Clement CHEUK, PW1, (“Cheuk”) was the Chairman, and Ms Phoebe Lee, PW2, (“Lee”) was the Chief Financial Officer of 3 Wells. They were called to give evidence relating to 3 Wells. While Mr Pat WONG, PW3 (“P Wong”), the Chairman of UK Fur and Mr WONG Kam-fai, PW4 (“KF Wong”), the chairman of New Bonus gave evidence relating to UK Fur and New Bonus respectively. The Prosecution originally intended to call a Michael ANG (“Michael”), who was engaged by D2 as her agent at the material times responsible for dealing with the three respective client companies. However, after Michael was called and taking oath, he suddenly, on his own initiative, raised with court that he was unwilling to give evidence as he worried that what he said might incriminate himself. The +Prosecution finally informed the court that they decided not to call Michael and would not rely on his evidence at all.  3 Wells Regarding 3 Wells, it is alleged by the Prosecution that, during the period between July 2011 and January 2012, D1 has carried on a business in advising on corporate finance for 3 Wells with a view to assisting the latter to be listed on the Growth Enterprise Market (“GEM”) Board of the Stock Exchange of Hong Kong Limited (“SEHK”). By signing a detailed and unequivocal “Professional Financial Consultation Services Agreement” (“3 Wells Agreement”), Exhibit P12, with 3 Wells around July/August 2011, which was procured by D2, D1 did assign and authorise a team of her staff headed by Michael ANG (“Michael”) to have meetings, both in Hong Kong office as well as factory located in Mainland, with senior officers of 3 Wells with a view to assessing their capability of being listed on the GEM Board. D2 and Michael, representing D1, also assisted 3 Wells to line up a professional team consisting of the right professionals, including lawyers, accountants and sponsors to substantially handle the listing matters. Pursuant to the aforesaid 3 Wells Agreement, 3 Wells made two payments in the sum of HK$ 150,000 each to D1 on 31 August 2011 and 14 May 2012 respectively. +Around September/October 2012, upon request by Michael, representing D1, allegedly due to problems of “internal audit”, 3 Wells agreed to terminate the 3 Wells Agreement with D1. This was done by way of a letter drafted by Michael and finalised by Cheuk and Lee. Cheuk said that the agreement was terminated upon D1’s promise that a full refund of HK$300,000 would be made by D1 to 3 Wells. However, no refund was ever made by D1. It is the prosecution case that what D1 has done amounted to carrying on a business in “advising on corporate finance”, or alternatively holding itself out to 3 Wells as doing so. Moreover, D2, in her capacity as an officer of D1, did aid, abet, counsel, procure or induce the commission of the offence under section 114 by D1 or the offence was committed by D1 with her consent or connivance or was attributable to her recklessness. UK Fur and New Bonus The evidence given by P Wong and KF Wong was relatively brief. The prosecution said that the mere fact that a similar written Professional Financial Consultation Services Agreement had been signed between D1 and UK Fur (“UK Fur Agreement”) as well as between D1 and New Bonus (“New Bonus Agreement”) respectively was sufficient to prove that D1 had held itself out to the above two companies as carrying on a business in advising on corporate finance. As a matter of fact, by completing the UK Fur Agreement, UK Fur has paid a total sum of HKD $600,000 to D1 in four instalments during the period between 20 October 2010 and 30 June 2011. Additionally, pursuant to the UK +Fur Agreement, upon submission of UK Fur’s listing application to SEHK, D1 was granted 14,400,000 option shares at the exercise price of HKD $ 0.26 per share on 1 August 2012 which was accepted by D2 on 2 August 2012. With respect to New Bonus, in pursuant to the New Bonus Agreement, a sum of HKD $ 170,000 was paid to D1 by New Bonus on 3 January 2011. The prosecution said that all the summonses against D1 laid under section 114 of the Ordinance require prosecution to prove “without reasonable excuse” as an element of the offence and that the prosecution has succeeded in proving beyond reasonable doubt that D1 had at the material times, without reasonable excuse, held itself out to the UK Fur and New Bonus as carrying on a business in advising on corporate finance and D2, being an “officer” of D1, was liable attributably in all the commission of the offences. Defence case D2 elected to give evidence herself but called no defence witness. She basically said that although she had signed all the relevant written agreements with the respective clients, she was not aware of the actual content stated therein and had no intention at all to carry on or hold herself out to the respective clients as carrying on a business in advising on corporate finance. What she actually had done was offering to the client companies that she, with the assistance of Michael, could line up a team of suitable professionals and participate in the liaison work for the listing matters only. After signing the contracts and attended the first introductory meeting with the professionals for the respective clients, she basically did nothing and was not sure what Michael and his team was doing to the +respective clients. The three written agreements in question were all prepared by Michael upon her instruction but she has not read through them before signing. Defence contended that first of all, what D1 and D2 have done in respect of 3 Wells did not amount to carrying on a business in advising on corporate finance. Additionally, neither was there any sufficient evidence to prove D1 had held itself out to the respective companies as carrying on a business in such an activity. D2 had no intention whatsoever in carrying on or holding herself out as carrying on a business in advising on corporate finance. The defence submitted that the prosecution was required to prove mens rea for all the summonses against D1 and that the prosecution has failed to do so. Further, what D2 said in her evidence could amount to a reasonable excuse and the statuary defence had been made out factually. It was submitted by the defence that as the commission of offences by D1 could not be proved, D2 should not be liable for all the “attributable” offences under section 390 of the Ordinance. Analysis Discussion on the Law There are quite a number of legal issues raised during the trial by both parties that I need to resolve before analysing the evidence. Issue I: Whether the summonses against D1 are strict liability offences? The Five Alternatives + The question of whether the summonses against D1, in contravention of section 114 (1) and (8) of the Ordinance, created strict liabilities or offences with full intent is never an easy one. The principles and application of the same have been thoroughly discussed in Hin Lin Yee v HKSAR (2010) 13 HKCFAR 142 and subsequently Kulemesin Yuriy & Tang Dock Wah v HKSAR, FACC 6 and 7 of 2012, now the landmark cases in this area of law decided by the Court of Final Appeal. Hin Lin Yee has helpfully set out, at paragraph 96, five possible alternatives which were subsequently reformulated, by addressing the possible alternative mental requirements relating to the consequences and not just the circumstances of the defendant’s conduct, in another decision of the Court of Final Appeal, Kulemesin Yuriy & Tang Dock Wah v HKSAR, FACC 6 and 7 of 2012, unreported , at paragraph 83: first, that the mens rea presumption persists and the prosecution must prove knowledge, intention or recklessness as to every element of the offence (“the first alternative”); second, that the prosecution need not set out to prove mens rea, but if there is evidence capable or raising a reasonable doubt that the defendant may have acted or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct were such that, if true, liability would not attach, he must be acquitted unless the prosecution proves beyond reasonable doubt the absence of such exculpatory belief or that there were no reasonable grounds for such belief (“the second alternative”); +third, that the presumption has been displaced so that the prosecution need not prove mens rea but that the accused has a good defence if he can prove on the balance of probabilities that he acted or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct were such that, if true, he would not be guilty of the offence (“the third alternative”); fourth, that the presumption has been displaced and that the accused is confined to relying on the statutory defences expressly provided for, the existence of such defences being inconsistent with the second and third alternatives mentioned above (“the fourth alternative”); and fifth, that the presumption is displaced and the offence is one of absolute liability so that the prosecution succeeds if the prohibited act or omission is proved against the accused, regardless of his state of mind regarding the relevant elements of the offence in question (“the fifth alternative”).” Should “mens rea” be displaced? I have born in mind the principle stated by Ribeiro PJ in Hin Lin Yee, at paragraph 41, that “where the offence-creating provisions are silent or ambiguous as to the mental requirements, it is generally accepted that the starting-point is that the statute must be construed adopting the presumption that it is incumbent on the prosecution to prove mens rea in relation to each element of the offence”. As Lord Scarman emphasised that the presumption of mens rea “can be displaced only if this is clearly or by necessary implication the effect of the statute”. + To summarise what Ribeiro PJ said in Hin Lin Yee, the considerations that are relevant to the proper statutory construction in respect of the issue of displacement of presumption of mens rea include: The statutory language; The nature and subject matter of the offence; The legislative purpose. The statutory language Section 114(1) and (8) provides that: “(1) Subject to subsections (2), (5) and (6), no person shall- (a) carry on a business in a regulated activity; or (b) hold himself out as carrying on a business in a regulated activity…. (8) A person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable- (a) on conviction on indictment to a fine of $5,000,000 and to imprisonment for 7 years and, in the case of a continuing offence, to a further fine of $100,000 for every day during which the offence continues; or (b) on summary conviction to a fine of $500,000 and to imprisonment for 2 years and, in the case of a continuing offence, to a further fine of $10,000 for every day during which the offence continues.” [my emphasis] Reading through section 114(1), I cannot see there are words or text stated therein which can be construed as carrying a connotation of knowledge or intention. For example, the common words of criminal intention like “knowingly”, +intentionally” or “recklessly” are absent from the provision. However, the word “shall” is used is used in the provision. In LI Yiu-kee v Chinese University of Hong Kong, unreported, CACV No.93 of 2009, when the Court of Appeal considered the meaning of “shall” appearing in the provision concerned, the entry below stated in the Hong Kong English-Chinese Legal Dictionary, Butterworth, 2005 was quoted with assistance: "Mandatory -- enforcing strict compliance; not directory. Whether a provision in a statute conferring a power or imposing a condition to be observed is mandatory is a question of the intention of the legislature in the context of the statute as a whole … . While the use of the word 'shall' or 'must' is prima facie indicative of a mandatory provision, care should be taken before identifying a provision to be mandatory to ascertain the consequences if the requirement is not complied with, particularly when such consequences are not spelt out in the provision …" (my emphasis) The nature and subject matter of the offence While exceptions exist, the more serious the offence in terms of penalty and social obloquy, the less likely it is that the presumption will be held to have been supplanted. On the other hand, as Ribeiro PJ said at paragraph 142 of his judgment in Hin Lin Yee, there is generally less need to feel inhibited about overriding the presumption in relation to what may compendiously be call “regulatory offence”. Lord Reid in R v Warner [1969] 2 AC 256, at paragraph 271, gave some examples of such offences which in the English context, were +held to impose absolute liability. They were offences under public health, licensing and industrial legislation. It is of note that the long title of the Ordinance provides that: “An Ordinance to consolidate and amend the law relating to financial products, the securities and futures market and the securities and futures industry, the regulation of activities and other matters connected with financial products, the securities and futures market and the securities and futures industry, the protection of investors, and other matters incidental thereto or connected therewith, and for connected purposes.”[My emphasis] The subject matter and nature of offences governed under section 114 are obviously “regulatory” in nature concerning “licensing” matters and the Ordinance aims at protecting the investors. I have not lost sight that the maximum penalty upon conviction on indictment is 7 years’ imprisonment, and on summary conviction is 2 years’ imprisonment. However, despite the relatively heavy penalty, and possibly the serious professional ramification imposed on the offenders upon conviction of the offence, carried by the provision, I consider that this is an offence attaches comparatively less “social obloquy” or “stigma” to the offender, especially when this kind of offence would most commonly be committed by a corporate body. It is worth noting that when reading section 114(1) and section 390 together, it is clear that when an officer is involved or contributed to the commission of the offences of s.114, the provision of s.390 then deliberately require proof of mens rea, namely “recklessness”, “with consent” “induced” or +“procured” etc. It is not difficult to infer that it must be due to the presumption of mens rea and the fact that stigmatising effect on a natural person is much more than on a corporate body. The legislative intent Ribeiro PJ continued, at paragraph 143, in his judgment of Hin Lin Yee: “the legislative purpose is obviously important. If, in the light of the nature and subject matter of the offence, construing the provision to require full mens rea would make successful prosecution so unlikely that the statutory objectives would be frustrated, this must be given weight. Where this is a legitimate consideration, the response should often be to consider whether the adoption of an intermediate basis of liability accords with the true legislative intention.” Having considered the subject matter and nature of the offences in question, I consider that the statutory objective of section 114(1) of the Ordinance will be frustrated if proof of full mens rea is required. It is very difficult for the prosecution to prove a company or the directing mind of it is intentionally or knowingly carrying on or holding itself out as carrying on the business in advising on corporate finance. It is common sense that companies of securities and futures industry normally involve sophisticated division of labour due to its complex nature of work. The actual works and daily operations usually are not carried out by the directing mind of the company but its professional staff. It will defeat the whole purpose of the Ordinance to protect the investors many of which may not have much knowledge of the industry and rely heavily on the conducts and integrity of their financial adviser. The onerous duty to prove full mens rea would render the regulatory function of the governing body and enforcement of the provision ineffective. + Furthermore, sections 114(1) and 390 of the Ordinance cannot be read in isolation. It is very clear that the legislation deliberately requires proof of mens rea in respect of section 390 when “officer” is targeted. I am of the view that it does shed light on the legislative intent. If mens rea is required for section 114(1), the legislator could have easily spelt it out like what it is done in section 390 of the Ordinance. Taking into account all the relevant principles of statutory construction set out in Hin Lin Yee, I consider that the presumption of mens rea should be displaced in respect of the offences created in section 114(1). Are the offences under section 114(1) absolute liabilities? Regulatory offences do not as a rule involve conduct falling within the fifth of the aforementioned categories where absolute liability may be justified. Many regulatory offences may fall within other categories of the five alternatives. The legislative policy underlying the regulatory offence may justifiably be to require diligent proactive management or supervision on the part of the person subjected to the duty. In the case Kulemesin Yuriy, Ribeiro PJ “noted that when dealing with a serious as opposed to regulatory offence, a court considering whether the presumption of mens rea should be displaced – and if so, replaced by what – is likely to find it more appropriate to infer that the second (rather than the third) alternative best reflects the presumed intention of the legislature since that alternative lies closer to the full mens rea end of the spectrum and does no violence to the presumption of innocence, as befits a serious offence. On the other hand, the third alternative is likely to be more compelling in relation to a +regulatory offence.” That is also in line with the observation made by him in Hin Lin Yee at, paragraph 161, that “the policies underlying regulatory offences are likely to be best reflected by construing the offences as falling within the third alternative, founding liability on the absence of due diligence or the absence of honest and reasonable belief”. Since section 114(1) carries heavy penalty with maximum term of 7 years’ imprisonment upon indictment, I consider the fifth alternative of absolute liability should be put out of the picture in the present case. In other words, I consider the first (full meas rea required) and fifth alternative (absolute liability) of liability as set out in Hin Lin Yee are not applicable in the present case. Issue II: “Without reasonable excuse” ---an element of the offence or a defence only? There remain three alternatives: the second, the third and the fourth, which are regarded as intermediate basis of liability. It is of note that the phrase “without reasonable excuse” appears in the offence-creating provision, namely section 114(8). Before deciding which alternative (2nd, 3rd or 4th) the offences under section 114(1) should fall in, I shall deal with another separate but related legal issue that has been raised in the trial: whether “without reasonable excuse” should be regarded as an element of the offence or just a defence under section 114(1)? In fact, the issue has previously been discussed in the Court of First Instance by Barnes J in Securities and Futures Commission v Yu Ka Tak [2007] +HKCLRT 728. It was held by Barnes J, at paragraph 20, that “without reasonable excuse” is an element of the offence under section 114(1): “20. In the present case, the contents of s.114, particularly ss.114(3) and 114(9), show that the legislation has included “without reasonable excuse” as an element of the offence. Of course, this case also involved the prosecution’s allegation that the respondent was “without licence”, and under s.94A of the Criminal Procedure Ordinance, it was not necessary for the prosecution to prove that the respondent was “without licence”. If the respondent wished to prove that he had a licence, the burden of proof would be on him on a balance of probabilities. However, this does not mean that it was unnecessary for the prosecution to prove that the respondent had contravened s.114(3) without reasonable excuse. The present case is not significantly different from HKSAR v Lam Yuk Fai, and the principles stated therein are also applicable to this case.” Barnes J further observed that: “21. Although, generally speaking, whether a person has a“reasonable excuse” is probably something that only that person himself will know, this does not mean that there is anything improper in requiring the prosecution to prove the element of“without reasonable excuse” (as held by the Court of Final Appeal in HKSAR v Lam Yuk Fai and the Court of First Instance in HKSAR v Ng Po On). +22. Apart from the fact that the provision reflects that “without reasonable excuse”is one of the elements, I have also taken the legislative spirit into consideration. Had the legislative intent been that any person who contravened s.114(3) committed an offence subject to the defence of “without reasonable excuse”, the provision could have expressly said so, as in s.118(5) of the Copyright Ordinance (Cap.528) and s.9(4) of the Trade Descriptions Ordinance (Cap.362). 23. The contravention involved in this case is quite different from the offence of “possessing an offensive weapon in a public place” contrary to s.33 of the Public Order Ordinance (Cap.245). It would be rather difficult for the prosecution to prove that a defendant was in possession of an offensive weapon in a public place“without reasonable excuse”. Given that the legislation is intended to protect the well being of a person, it is neither improper nor unfair for “without reasonable excuse” to be made not an element of the offence which the prosecution has to prove but a defence. Furthermore, the fact that prosecutions have to be sanctioned by the Secretary for Justice serves to provide considerable protection to a person. Lord Woolf also mentioned similar offences in HKSAR v Lam Yuk Fai (see para.18 above). 24. The scenario in this case is different. The prosecution’s case was that the respondent carried on a regulated activity (leveraged foreign exchange trading) as business, and the case involved three persons going to the company for which the respondent worked to +open accounts and carry out foreign exchange transactions. The respondent also told them that his company would charge 18% of the profit as commission etc. 25. The prosecution alleged that the respondent did not have a licence. If the respondent claimed the contrary, he had to prove it on a balance of probabilities. If he exercised his right not to give evidence, the defence would not have any evidence to show that he had a reasonable excuse. Under such circumstances, the court could, on the evidence adduced by the prosecution, determine whether the only reasonable inference to be drawn was that the respondent was “without reasonable excuse” and had contravened s.114(3) accordingly.” Nevertheless, subsequently in Securities and Futures Commission and Liu Su Ke [2010] 2 HKLRD 673, Lunn J considered the same issue but came to a different conclusion. He ruled that “without reasonable excuse” was not an ingredient of the offence, and in pursuance to s. 94 A of the Criminal Procedure Ordinance (Cap 221), a defendant bore the persuasive burden of proving reasonable excuse. However, there were no compelling reasons to justify the abrogation of the presumption of innocence in this way and applying the proportionality test, s. 94A would be read down, so that an evidential burden was imposed on a defendant to point to evidence that raised the issue of reasonable excuse.  Although in Liu Su Ke, the court was concerned with a different provision namely, section 328 (a) of the same Ordinance, the wordings and +drafting of both provisions of 328 and 114 are actually very similar. As a matter of fact, the case of Yu Ka Tak was submitted to Lunn J for his consideration by Senior Counsel for the Respondent in favour of his contention that “without reasonable excuse” should be an element of the offence, however Yu Ka Tak was not discussed in the judgment by Lunn J. Lunn J made it plain, at paragraph 74 to 76, that “74. In my opinion, Mr Bell has identified succinctly the correct approach to the construction of the relevant provisions of this Ordinance: “Specific conduct or omission prohibited by a statutory provision may or may not be sufficient to constitute an offence. The essential criterion is whether the prohibited conduct or omission is inherently culpable.” 75. It is apparent from the long title of the Ordinance that one of the purposes and objectives in regulating activities in the securities market is, and is stated, to be the "protection of investors". Clearly, the requirement of a disclosure of interests in shares, on acquisition or cessation of that interest, is the better to inform the market and is for the protection of investors. Importantly, the ingredients of the offence alleged against the appellant require proof by the prosecution of knowledge in the appellant of the occurrence of the relevant event. It is only with that knowledge, that culpability is imposed in consequence of a failure to make disclosure of a notifiable interest…. +76. In my judgment, in the context of the objects and purposes of the Ordinance, in particular the regime of disclosure to better inform and protect investors that is an inherently culpable act and those are the ingredients of the offence” I am of the view that the above principle stated in Liu Su Ke also applies in the present scenario. Although Liu case concerned a difference provision relating to criminal act of “non-disclosure”, advising on corporatefinance without licence in the present situation is also, in my view, inherently culpable. And we are here concerned of the same Ordinance with the same objective of protecting investors and regulating the securities and futures industry. In the present case, Senior Counsel for the Defence, Mr Duncan, in court, as opposed in the defence written closing submission, did fairly agree that the terms “without reasonable excuse” should be considered as a defence instead of an ingredient of the offence while Miss PO Wing Kay for the Prosecution maintained her view that “without reasonable excuse” should be considered as an element of the offence relying on the judgment by Barnes J. Be that as it may, Miss PO frankly admitted in the court that she was not aware of the subsequent judgment of Lunn J on the same issue. Having carefully considered both aforesaid authorities from the Court of First Instance, I ruled that the term “without reasonable excuse” should be regarded as a defence to be raised by defendants on evidential burden. I note that Liu Su Ke case was delivered after Yu Ka Tak case and that the Court of Final +Appeal Judgment of HKSAR v Ng Po On [2008] 4HKLRD 176 had not been delivered when Yu case was decided. What defence is available and the standard of proof? By now, I have decided that a statutory defence, namely “without reasonable excuse” is available for offences under ss. 114 (1) and (8). The effect of any statutory defences applicable to the offence charged is obviously important where the presumption of mens rea relating to the offence-creating provision is displaced. The key question is whether the statutory defence, if properly construed, is inconsistent with the availability of the second or third alternative. If so, only the statutory defence could be relied on. That was regarded as the fourth alternative liability as defined in Hin Lin Yee. Further, Ribeiro PJ subsequently observed in Kulemesin Yuriy, at paragraphs 85- 89, that: “85. Hin Lin Yee was concerned with the mental element to be proved in relation to a regulatory offence, namely, breach of section 54(1) of the Public Health and Municipal Services Ordinance. The offence involved selling drugs which were intended for use by man but unfit for that purpose (because they had been contaminated by a certain contaminant). It was an offence punishable on summary conviction by a maximum fine of $50,000 and imprisonment for 6 months…. +86. The present case involves an offence which is not merely regulatory but involves serious criminal liability, being triable on indictment and punishable by a fine of up to $200,000 and by imprisonment for up to 4 years. In cases like the present, a conviction is also likely to have serious professional ramifications for the mariners involved. As we have seen, a constitutional challenge was made to the reverse onus apparently imposed by the statutory defences provided for. 87. I concluded in Hin Lin Yee that the halfway house to be adopted in Hong Kong was the third (reverse onus) and not the second (evidential burden) alternative, on the basis that once the Court was prepared to go so far as to accept as a halfway house, the imposition of a reverse onus on the defendant, there was little to be said in favour of the second alternative. I also remarked that the latter alternative was less straightforward, since it requires the prosecution to proceed subject to the contingency that the accused discharges an evidential burden as to his having had reasonable grounds for an exculpatory belief. The prosecution would then have to prove either the absence of an honest belief or the absence of reasonable grounds for such belief. 88. Such reasoning is apt when the Court is dealing with a merely regulatory offence and no constitutional issue is raised. Given the relatively minor gravity of the offence, the Court may be prepared to adopt the reverse onus alternative which falls close to the absolute liability end of the spectrum as best reflecting the presumed legislative intent upon displacement of the presumption of mens rea. +Such alternative remains available and may be compelling when construing regulatory offences. 89. However, where, as in the present case, the Court is not dealing with a merely regulatory offence, it may conclude that the presumption of mens rea has been displaced but may not accept that adoption of the third alternative would reflect the legislative intent. Where a serious offence carrying severe penalties is involved, a reverse onus may also be regarded as making excessive inroads into both the presumption of mens rea and the constitutionally protected presumption of innocence. In such cases, the Court may find it more appropriate to infer that the second alternative best reflects the presumed intention of the legislature, doing no violence to the presumption of innocence.” Given the serious criminal liability and severe penalty carried by the s.114 offences and the fact that the standard of proof of the statutory defence held in Liu Su Ke to require evidential burden only is consistent with that of the second alternative set out in Hin Lin Yee, I, having considered all the above steps of statutory construction, find that the present offences under sections 114(1) and (8) are offences to which the second alternative of intermediate basis of liability applies. In other words, they are offences where: The prosecution is required to prove beyond reasonable doubt that the D1 did carry on or hold itself out to the company clients in question as carrying on a business in advising on corporate finance; +If D1 is able to reply on evidence which, if unrebutted, raises reasonable doubt as to whether he acted or omitted to act in the honest belief on reasonable grounds that her conduct was not carrying on or holding itself out as carrying on a business in advising on corporate finance, D1 is entitled to be acquitted unless at the end of the day, the prosecution establishes beyond reasonable doubt that the D1 either did not have such belief or that his belief, although honestly held, was not based on reasonable grounds (common law defence); Furthermore, given the existence a statutory defence, if D1 is able to reply on evidence which, if unrebutted, raises a reasonable doubt as to whether a reasonable excuse exists for its conduct, D1 is entitled to be acquitted unless at the end of the day, the prosecution establishes beyond reasonable doubt that no such excuse exists or that the excuse relied on is not reasonable (statutory defence). Issue III: Could D1 be liable for acts of Michael? Concerning the criminality of a corporate body, there is no dispute by both parties that the current law is that the company will have imputed to it the acts and state of mind of those of its director and managers who represent its “directing mind and will”. And it is also common ground that D2 in the present case was the directing mind of D1, being the sole shareholder and director of D1. The issue is whether the acts of Michael, having been engaged by D2 to deal with the respective clients in question, could be attributed to D1? + The key question was identified by Lord Reid in Tesco Supermarkets Ltd v Nattrass [1972] AC 153 , in two passages at pp. 170 and 171 respectively: “I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability.” “Normally the board of directors, the managing director and perhaps other superior officers of a company carry out the functions of management and speak and act as the company. Their subordinates do not. They carry out orders from above and it can make no difference that they are given some measure of discretion. But the board of directors may delegate some part of their functions of management giving to their delegate full discretion to act +independently of instructions from them. I see no difficulty in holding that they have thereby put such a delegate in their place so that within the scope of the delegation he can act as the company. It may not always be easy to draw the line but there are cases in which the line must be drawn….” Also, a contrast can be drawn between the offences of strict liability and those require proof of mens rea. Lord Templeman said at p.465 in re Supply of ready mixed concrete, HL, (No.2) [1995] AC 456 that: “the first principle is that a company is an entity separate from its members but, not being a physical person is only capable of acting by its agents. The second principal is that a company, in its capacity as a supplier of goods, like any other person in the capacity of taxpayer, landlord, or in any other capacity, falls to be judged by its actions and not by its language. An employee who acts for the company within the scope of his employment is the company. Directors may give instructions, top management may exhort, middle management may question and workers may listen attentively. But if a worker makes a defective product or a lower manager accepts or rejects an order, he is the company. It is recently held by the Court of Appeal of England in R v St Regis Paper Co. Ltd [2011] EWCA Crim 2527 that the above principles however have no application to the regulation in question in that case which required proof of full intent. It again distinguished between offences of strict liability and offences which required proof of mens rea. + On the other hand, in HKSAR v Timful Garment Ltd, HCMA 770 of 2001, Deputy Judge Toh, as she then was, quoted what Litton JA said in the R v Wong Tak Choy [1994] 3 HKC 353: "The Import and Export "General" Regulations do not by express terms make an employer liable for a servant's act of taking article out of Hong Kong contrary to the provision of the export licence unless he has caused the servant to do so. The effect of the verb to cause in the context of the Import and Export Regulations has been exhaustively analyzed by the Privy Council in AG v Tse Hung Lit [1986] AC 876. There the Privy Council expressively approve of the passage in the judgment of the High Court of Australia in O'Sullivan v Truth and Sportmans Limited 1957-96 CLR 2001 where the High Court was dealing with the offence of causing a newspaper to be offered for sale containing certain prohibited matters. The passage is in these terms: "(The expression to cause) should be interpreted as confined to cases where the prohibited act is done on the actual authority, express or implied, of the party said to have caused it or in consequence of his exerting some capacity which he possesses in fact or law to control or influence the acts of the other. He must moreover contemplate or desire that the prohibited act will ensue." Deputy Judge Toh, as she then was, further observed that: “15. The appellant in Wong Tak Choy case was not a limited company. The appellant was one of the three partners of a garment +factory. In Wong Tak Choy case there was evidence that a Mr Tsang who was in charge of the Shipping Department had carried out some import and export transactions and that the Appellant did not authorise it and knew nothing about it. 16. The Magistrate in Wong's case decided that Wong was vicariously liable for what Mr Tsang had done. Litton JA (as he then was) held that the decision was wrong and that the Appellant could only be found guilty if there was evidence to show that he did cause the servant to commit the crime. 17. I agree with the Respondent that the present case can be distinguished from Wong Tak Choy case in that the Appellant is a limited company and its mind and will must, of course, be exercised by the Company Directors and Managers, and the Company had through its board of directors, given full authority to Mr So to act on its behalf, as its production manager, in charge of not only production but import and export. 18. The learned Magistrate correctly found that a company "will have imputed to it the state of mind, both of its directors and managers, who represent its directing will and mind. So any mistakes or intentional flouting of the law by Mr So can be imputed to the Company.” As I have ruled the offences under section 114(1) are strict liability to which the second alternative applies and that D1 is a corporate body instead of a natural person, I consider that, by applying the principles stated in the authorities +above, what Michael (being an agent of D2)’s acts done could be attributable to not only D2 but also D1, subject to the finding of facts as to whether Michael was acting within the actual and specific authority of D2. Directions and reminders In reaching the verdict, I have reminded myself that the prosecution is required to prove the guilt of the defendants beyond reasonable doubt. The defendants have nothing to prove except D1 to raise the defence with evidential burden in respect of s.114 offences. If I were to disbelieve D2’s evidence in court that does not mean she or D1 is guilty of the offence. Were I to disbelieve what she said in court I am also required to consider the evidence I do accept and decide if that satisfies me of the guilt of the defendant to the required standard. In assessing the credibility of witnesses, I reminded myself that each case has its own particular features and sweeping generalization should not be made. I bore in mind that I had to consider the inherent probabilities of the evidence and that the demeanour of the witnesses could be relied on only as a last resort. D2 has a clear record and I have followed the guideline laid down in the case of Berrada and regarded her as having a lower propensity to crime and a higher degree of credibility. I also reminded myself that where the prosecution relies on circumstantial evidence, the court can only draw an inference from facts proved beyond reasonable doubt and such an inference must be the only reasonable +inference that can be drawn from such facts. It must also be an irresistible inference. This case involved similar summonses laid against D1 and D2 under sections 114 and 390 respectively of the Ordinance, I have reminded myself that I have to deal with evidence for each summons separately. Discussion on the Evidence The credibility of all the prosecution witnesses are generally not in issue, except the defence challenged Cheuk had actually not read the content of the written agreements before his signature, which Cheuk firmly disagreed. In the following paragraphs, I will firstly deal with the evidence concerning summonses laid under s.114(1) against D1, i.e. C.L. Management Services Ltd, in relation to its dealing with the 3 respective client companies: 3 Wells, UK Fur and New Bonus. The “carrying-out” offence under section 114(1)(a) only concerned 3 Wells while the “holding-out” offences under section 114(1)(b) concerned all three companies in question. Summonses against D1 The “carrying-out” offence in respect of 3 Wells (ESS 30671 of 2013) Background of D1, D2 and Michael D1, C.L. Management Services Ltd, was and is a registered company in Hong Kong and D2 was the sole director and shareholder of the company at all material times. D1 shared the same office at the address stated in the agreements in question with Cheong Lee Securities Limited (“Cheong Lee”) which was and +is a securities company owned by D2. It is admitted by both parties that neither D1 nor D2 were licensed with SFC in any capacity or in relation to any regulated activities under the Ordinance.  Neither was it disputed that D2 knew that she was not licensed to do so at the material times. D2 is educated and received part of her education in Australia. She was divorced having 4 children. She has been actively participating in the charitable work held by Yan Oi Tong where she met Cheuk’s wife who was the chairlady of Yan Oi Tong. D2 was also elected as a vice-president of Yan Oi Tong before. She was a stockbroker and a licensee as a securities’ dealer between 1991 and 2003. D2 acquired Cheong Lee in 2007 which was and is a company engaged in the business of dealing in securities and futures. In March 2011, the holding company of Cheong Lee, CL Group (Holdings) Limited (“CL Group”) was listed on the GEM board of SEHK and D2 was and is the major shareholder. D2 knew the listing procedures from the past listing experience of her own company, CL Group and as a result of which, she knew a number of professional parties, including lawyers, accountants and sponsors for listing matters. As testified by D2, Michael was a certified public accountant and also a chief financial officer of a listed company. D2 knew him since 2004 and CL Group had employed Michael as a company secretary in 2005 for 6 months. Between 2004 and 2007, D2 hired Michael to handle accounting matters for her personal companies. As far as D2 knew, Michael was conversant with the listing procedures. D2 regarded Michael as a person of experience and one could handle matters very well, as she had worked with him for a long time. In the present case, D2 alleged that he had engaged Michael to prepare the agreements in question and liaise with the respective three client companies for her. She also asked Michael +to look into the internal audit of 3 Wells for allegedly “her own assessment” only as to whether 3 Wells were capable of being listed before she introduced the professional parties handling the listing procedures of 3 Wells. D2 maintained that Michael was not an employee of D1 at the material times. Before 3 Wells Agreement was signed According to the evidence, what D2 and Michael have done to 3 Wells before the 3 Wells Agreement had been signed were as follows: In early 2011, about half a year before signing the agreement, D2 firstly raised with Cheuk if he was interested to be instructed by her to upgrade 3 Wells, meaning getting it to be listed; Cheuk subsequently visited several times D2 at the address of D1, as stated in the 3 Wells agreement for the purpose of knowing more about D1’s scale of business (though in his mind he only knew Cheong Lee) and considering whether to choose D1 for the listing matters. Every time he saw D2 working inside the office and it was Michael who received and discussed the matter with Cheuk; Cheuk also, during the half year before the agreement was signed, has gathered information in respect of provider of consultancy services in listing matters. He said the price was generally from $300,000 to $500,000; Cheuk was not familiar with the listing procedures and therefore he needs advice on the procedures, human resources and a professional party to line up all the right professionals for the listing +application; Cheuk admitted that apart from the payment and lining up of professionals, the other terms on scope of services were not discussed with D2 in details. Those were only confirmed when the agreement was signed; What Cheuk understood was that D2 and Michael would act like a “martial-art instructor” to help 3 Wells in the listing procedures. He expected that D2’s party would supervise or even work with the team of professionals to ensure the smoothness of the listing of 3 Wells; Michael was the first “staff”, as said by Cheuk, D2 had introduced to Cheuk; D2 instructed Michael to prepare the 3 Wells agreement for Cheuk to sign. Cheuk signed the agreement first at 3 Wells’ office, the agreement was subsequently sent to Michael for D2’s signature at her own office; A signed copy by both parties was later sent to 3 Wells; Cheuk said he did read the content of the agreement before he signed. Because of their friendship and D2’s reputation on both her profession and charity, Cheuk said that he did not care much about whether D2 was signing the contract on behalf of Cheong Lee or any other company of her. Nor did he care much about the date of the agreement; Cheuk knew well that he was appointing D1 as 3 Well’s “exclusive financial adviser” and he did believe D2 was capable of providing such service as a professional financial adviser for 3 Well’s listing and D2 being a consultant should provide such service as a whole. +Relevant clauses in the 3 Wells Agreement The written agreement signed between D1 and 3 Wells is not at all a complicated one. The terms stated in are in fact clear and easy to understand. I quote below the relevant ones: “PROFESSIONAL FINANCIAL CONSULTATION SERVICES AGREEMENT Name of Party A : 3 Well Groups Holdings Limited (referred to as “Party A”) Office of Party A : Units 1503 – 6, 15/F, Tower 1, Ever Gain Plaza, 88 Container Port Road, Kwai Chung, N.T., Hong Kong Name of Party B : C. L. Management Services Limited (referred to as “Party B”) Office of Party B : Room 1106, 11/F, Mass Mutual Tower, 38 Gloucester Road, Wan Chai, Hong Kong In view of Party A’s intention to apply for a listing status on the Growth Enterprise Market (GEM) Board of the Hong Kong Stock Exchange, Party A and Party B hereby enter into this Engagement Agreement on matters about the engagement of Party B as an exclusive financial advisor in relation to Party A’s listing upon arm’s length negotiation : 1. Engagement With the effective from the confirmation and signature of this Agreement by Party A, Party B is duly appointed by Party A as the exclusive financial advisor of Party A and its subsidiaries (hereinafter referred to as the “Group”) in relation to the listing in Hong Kong. 2. Scope of Services Party B shall make full endeavour to use its resources and advantages for the listing of Party A, in order to enable Party A to be listed on the Hong Kong Stock Exchange. The responsibilities of Party B in relation to this listing include : (1) to provide professional financial advices in relation to arrange of the application for the listing on the Hong Kong Stock Exchange and to assist in resolving the relevant important issues; +(2) to provide technical advice on all related foreign and domestic policies, and to assist Party A in drawing up a listing scheme or proposal on the basis of an initial evaluation; (3) to assist and guide Party A on the formulation of a restructuring plan, and a timely tracking and monitoring program for the intended listing, and on the implementation thereof; (4) to assist Party A in preparing the financial statements of the Group in accordance with the Hong Kong Accounting Standards; (5) to guide and assist the Group in the preparation of the listing financial information (including the preparation of the financial information to be contained in documents such as the prospectus of Party A) in accordance with the standard requirements, and to actively participate in the preparation work for Party A’s application for listing; (6) to assist Party A in the engagement of various listing-related intermediaries in relation to the intended listing, such as accountants, lawyers and listing managers (including securities brokers and underwrites etc., which shall be internationally-renowned institutions). The selection of the aforesaid institutions shall be confirmed by Party A, and the payment of costs to each of the intermediaries shall be made by Party A; (7) to assist Party A in performing the required due diligence in respect of the listing project and to coordinate with other intermediaries; (8) to enthusiastically follow up audit work in connection with the listing matters with the Hong Kong auditors for and on behalf of Party A; (9) to assist Party A in the overall arrangement with respect to the questions raised by the Hong Kong Stock Exchange and the Securities and Futures Commission (SFC), including the review and submission of replies on financial information; (10) to consult with Party A to frame a practicable listing schedule in order to ensure the timely completion of the required work; (11) The advisory services shall span over the financial accounting years from September 2011 to December 2012. ……. 5. Payment of Costs Party A agrees and undertakes to pay a cost of HK$600,000 annually to Party B as compensation for acting as its financial adviser. Upon successful listing of Party A on the Stock Exchange of Hong Kong, Party A shall grant an additional number of share options, being equivalent to 1.5% of the issued shares, to Party B. The payment should be made within 7 days when this agreement effective. The payment terms is as follows + Time of payment Payment Within 7 days after signing this Engagement HK$150,000 Agreement and payment in quarter The date on which the listing application submit to Share options the Stock Exchange of Hong Kong equivalent to 1.5% of the number of issued shares The accommodation expenses incurred by Party A during its work should be financed by Party A.” (My emphasis) I find the above 3 Wells Agreement a very clear and comprehensible agreement representing that D1 would during the period covered by the agreement act as an “exclusive financial advisor” providing a comprehensive scope of advisory services for 3 Wells concerning the compliance with and in respect of the listing rules. The reasons are: The agreement was clearly named as “Professional Financial Consultation Services Agreement”; It was stated therein twice that D1 was engaged by 3 Wells as an “exclusive financial advisor” in relation to 3 Wells’ listing in Hong Kong; All the terms in Clause 2 “Scope of Services” clearly concerned advisory services on listing matters, including compliance with and in respect of the listing rules, of 3 Wells; In Clause 5, the payment of costs was clearly for D1 acting as 3 Wells’ “financial adviser”. It is of note that the payment of costs to other +professional listing-related intermediaries, e.g. lawyers, accountants and listing managers, were to be separately and additionally paid by 3 Wells; The advisory services shall span over the financial accounting years from September 2011 to December 2012. After 3 Wells Agreement was signed On the evidence, after the agreement was signed, D2 and Michael did provide part of the services as stated in Clause 2 of the agreement: 1-2 weeks after 31 Aug 2011 when 1st payment of HK$ 150,000 was paid by 3 Wells to D1 in pursuance of the agreement, Cheuk and Lee met Michael and his team for the listing matters; Michael, and his team, then requested to assess each department of 3 Wells by interviewing each department head and visiting the mainland factory; On 1 September 2011, Geoffrey WONG  (“Geoffrey”) of Michael’s team, sent a outstanding list and time table for the listing purpose to Lee; The same was forwarded to Michael; Between 16 September and 17 October 2011, Lee sent, as requested by Geoffrey, a list of 3 Wells’ internal documents to +Alex Tse (“Alex”) and Geoffrey, for the purpose of reviewing the internal control. Alex sent their comments on the internal control to 3 Wells on 22 September 2011. As seen from the email, meetings for the same purpose were held on 19 September, 4, 13 and 17 October 2011, all the emails were forwarded to Michael and Cheuk; Cheuk understood that all the above documents were sent to Michael and his team for their consideration as to whether 3 Wells was capable of being listed; Before D2 lining up the professional team, Cheuk recalled that either D2 or Michael had come back to him and told him that 3 Wells should be eligible to be listed; On 3 October 2011, Michael and Cheuk’s team had the first meeting with the company lawyer ; On 21 October 2011, Lee sent to Geoffrey another list of 3 Well’s information which would be forwarded to Sponsor’s consideration; On 25 October 2011, Michael attended the first meeting with the Sponsor and Cheuk’s team ; +On 12 December 2011, Michael attended a meeting with the Sponsor and Cheuk’s team concerning the extension of the listing on GEM project for one year to September 2013; On 16 January 2012, Michael attended a meeting with Cheuk’s team and the Sponsor for the purpose of outlining the execution plan for GEM project; On 14 May 2012, 3 Wells paid a second payment of $150,000 to D1 in pursuance of the agreement; Around September/ October 2012, Michael called Lee repeatedly and urgently requesting 3 Wells to terminate the 3 Wells Agreement due to problem of “internal audit”. It was promised that a refund of a total of $300,000 will be made to 3 Wells by D1. The request was agreed by Cheuk and a letter was finalised, drafted by Michael and amended on Cheuk’s instruction, and sent to D1’s address and to the attention of D2; D2 admitted that she had received the termination letter but did not pay heed to it and therefore did not act on it; No refund was ever made by D1 to 3 Wells until now; +Cheuk all along understood that D2, Michael and their team, apart from lining up the professionals including the lawyers, accountants and sponsors, would supervise and work with them to make the listing process successful. However, several months after the agreement, it seemed that D2 and her team did not do much in the listing process; Upon lining up the professionals, D2 said she had attended the first introductory meeting after which he did not take part in the process. She relied on Michael to do all the liaison work for 3 Wells’ listing matters; D2 admitted that out of the total sum of $300,000 D1 had received from 3 Wells, $150,000 was paid to Michael. Was Michael acting on behalf of D2 within her actual and specific authority? It is contended by the Defence the acts by Michael and his team to 3 Wells were not done within D2’s actual and specific authority. On the evidence, D2 was the sole shareholder and director of D1. The scale of D1, as testified by D2, was not a huge one. She said in evidence that it was her another company Cheong Lee assigning a room at the address in question for her to work for D1. Cheuk said that Michael was the first staff D2 had introduced to 3 Wells responsible for the listing project. Michael was working in the same office as that of D2 in respect of the dealing with 3 Wells as testified by Cheuk. It is reasonable to infer that D2 and Michael did work together closely during the material times. According to Cheuk and Lee, if there was +anything they wanted to inform D2, they would do it through Michael, e.g. D2 signing the 3 Wells agreement or Lee sending the termination letter to D2. 3 Wells’ party always understood Michael being the agent/staff of D2. At no stage did D2 inform 3 Wells that such her relationship with Michael had been changed. Further, I found Michael was actually working as a delegate/agent of D2, being responsible for the services provided to 3 Wells about the listing matters. On the evidence, it is clear that after D2 getting the business from 3 Wells by using her connection and reputation acquired both from her charity and professional works, she then left the actual operation to her able assistant, Michael. As admitted by D2, Michael was conversant with listing procedures as he was a certified public accountant and a chief financial officer of a listed company before. Michael has also been employed by D2 as company secretary for CL Group in the past. It was mainly Michael and his team to follow up the listing matters of 3 Wells. As a matter of fact, what Michael and his team did was generally consistent with the agreement terms, although it turned out to fall short of performance as expected by Cheuk. No doubts Cheuk and his team understood that Michael was all along acting on behalf of D2. Even during the termination of the contract, the letter was sent to D2’ attention. D2 admitted that she had received the termination letter which showed that she remained in control and was the person in charge of the whole process on behalf of D1. Before the 3 Wells Agreement was terminated, a total of HKD$300,000 was paid to D1 by 3 Wells on schedule which has never been refunded as promised by Michael over the phone. Out of HKD$300,000, Michael was rewarded with half of the remuneration, i.e. HKD $ 150,000, as admitted by D2. All of these are consistent with Michael’s role as an agent for D2. It makes no sense that Michael, without any reasons, would be or intended to be in any way +acting outside D2’s authority. Having reviewed all the evidence, I found that Michael was all along acting on behalf of D2. D2 had delegated her duties for 3 Wells to Michael and that Michael had acted within D2’s actual and specific authority and within the scope of her delegation. As I have ruled above that offences under section 114 created strict liability of 2nd alternative and the fact that D1 was a corporate body in the summons concerned, together with my finding that D2 had delegated her duty in respect of 3 Wells to Michael who had acted within D2’s delegation and authority, I consider that what Michael had done on 3 Wells was attributable to D1. In other words, D1 was liable for not only D2’s, but also Michael’s acts. What amounted to “advising on corporate finance”? It is common ground that the meaning of “advising on corporate finance” is defined in Part 2 of Schedule 5 of the Ordinance and the relevant part concerned in the present case in my view is confined only to the first part of subsection (a): “advising on corporate finance means giving advice- (a) concerning compliance with or in respect of rules made under section 23 or 36 of this Ordinance governing the listing of securities….; On reading the above extract of the definition, it seems that the provision aims at covering a wide range of areas of any advice given concerning compliance with or in respect of rules governing the listing of securities. + As analysed in paragraphs 61-64 above, I am of the view that what D2 and Michael did to 3 Wells before, during and after the 3 Wells Agreement was signed obviously amounted to advising on matters concerning compliance with or in respect of the rules governing the listing of securities. Although what D1 did fell short of what it had promised in the written agreement and what was expected from Cheuk. On the evidence, D2, Michael and his team were but trying to give assistance and advisory services on the listing matters for 3 Wells on behalf of D1. The services provided were generally in line with what D2 had promised to 3 Wells both in the oral and written agreements. Defence said that D2 was just using her experience and connections to line up a professional team for 3 Wells’ listing and that was it, which fell short of amounting to advising on corporate finance. I disagree with it. That in fact was just part of D2’s work. As said above, D2, after signing the 3 Wells Agreement, also sent her team headed by Michael, as testified by Cheuk and Lee, to have meetings with Cheuk, Lee and their department heads, both in Hong Kong and Mainland. They also helped to review a list of internal documents to access whether 3 Wells had the capability to be listed. Such advices were indeed given to them before D2 lined up the professionals for the listing of 3 Wells. After that, D2 (even for the first introductory meeting only as said by her) and Michael had also met up with Cheuk’s party and other professional intermediaries concerning 3 Wells’ listing. I do not accept Defence contention that D2 was not aware of Michael and his team’s doing all along. D2 was a professional in the securities industry and she was involved from the beginning until the end, although she was not the person who actually did most of the liaison or advisory work. This part will be considered in more details later in my verdict. +Did D1 “carry on” a business in advising on corporate finance? As to the meaning of “carrying on” a business, it was held in Lee Yee Shing v Commissioner of Inland Revenue (2008) 11 HKCFAR 6 at paragraph 38, that “whether something amounts to the carrying on a trade or business was a question of fact and degree to be answered by the fact finding body upon the consideration of circumstances.” Further, it was held in HKSAR v Fung Yee Man [2001-2003] HKCLRT 464 by Deputy Judge Pang, as he then was, that: “A business must be “carried on” in order to become registrable, and the term “carry on” cannoted a degree of continuity. As a matter of common sense, a one-off sale and purchase transaction did not constitute “carrying on”. I have found above that what D2 and Michael had done amounted to giving advice on corporate finance, I still have to consider whether on the evidence D1 was “carrying on” a business in advising on corporate finance. Applying the principle set out in the above cases, I do have reservation in concluding beyond all reasonable doubt that what D1 had factually done to 3 Wells could satisfactorily be regarded as “carrying on” a business in advising on corporate finance, although the evidence showed that it did at some stage, through Michael and D2, give 3 Wells “some bits and pieces” advisory service on its listing during the material times. Cheuk testified that several months after the agreement had been signed, he realised that D1 actually did not do much in the listing process, as opposed to what he had expected. On the evidence, the +advisory service provided by D1 to 3 Wells was abruptly terminated upon D1’s request around September or October 2012 before the agreement was completed. At that moment, 3 Wells was not able to be listed as originally scheduled. Analysed as the above, I acquit D1 of ESS 30671/2013 on the “carrying-out” offence. As there is no commission of the relevant offence in section 114(1)(a), D2 must also be acquitted of the “attributable offence” of ESS 30672/2013 laid under section 390 of the Ordinance. The “holding-out” offences (ESS 39231, 30673 & 30675 of 2013) As stated above, the “holding-out” offence against D1 concerned all three client companies. Meaning of “Holding- out” From the Hong Kong Bilingual Legal Dictionary, it is said that the term “hold out” means: “To represent or pretend. It is an offence for an unqualified, unlicensed or unregistered person to hold out, advertise or represent that he or she is qualified or licensed to provide professional or regulated services” Evidence relating to 3 Wells On the evidence set out above in paragraph 62, Cheuk said that before signing the 3 Wells agreement, D2 had asked him twice whether he would +like to promote 3 Wells to a higher level, which he understood was to have 3 Wells being listed. D2 asked if Cheuk was interested to be instructed by her for such purpose which Cheuk understood D2 would act like a martial art instructor in the whole listing process of 3 Wells. Cheuk had actually considered this issue for about half a year, during which he had gathered information about other companies providing similar consultancy services concerning listing procedures and visited D2’s office to learn about the scale of her business. Before the written agreement was signed, the payment terms and paying schedule were largely agreed. As to the scope of services to be provided by D1, D2 and Cheuk did not discuss it in details before signing the agreement. What Cheuk understood was that, apart from introducing the right professional parties to handle the listing process for 3 Wells, D2 and his team would also supervise or work together with other professional parties to ensure the listing process would be smooth. The Defence disputed that Cheuk had actually not read every term of the agreement before he signed it which was firmly disagreed by him. Cheuk explained that what he told SFC that he did not care about the contract meant that he did not care about the company’s name, the scope of services in details and the date of the agreement. Neither did he care to check whether each term of the contract was duly carried out by D2 in the course of the process after signing the agreement. It was because he trusted D2 very much. But he did read and understand every term of the contract before he signed. After considering the content of his evidence as a whole and observing the way in which Cheuk was giving evidence, I accept all what Cheuk said in court and I found him a very honest and reliable witness. + In any event, what the court mostly concerned is not what Cheuk had understood, but what D2 had held herself out before, during and after she had signed the agreement. The terms stated therein the 3 Wells Agreement are clear and simple. D2 is educated and has been working in the profession of securities and futures for a long time. The agreement was prepared upon her instruction. The evidence also showed that there was abundant time for her to read and understand the contract before signing the agreement. Apart from the conduct of D2 before and when she signed the agreement with 3 Wells, what she and Michael performed to 3 Wells after signing the agreement as stated above in paragraph 65 also supported the conclusion that, at the time when D2, on behalf of D1, signed the agreement, D1 did held itself out to 3 Wells as carrying on a business in advising on corporate finance. It was also in line with 3 Wells’ understanding all along until the termination of the contract. The fact that D1, urgently and strangely, requested 3 Wells to terminate the agreement also strengthened the inference that D1 did at the outset held out to 3 Wells as carrying on a business in advising on corporate finance which was later discovered to be unlawful and needed to be terminated. In light of the foregoing, I have no hesitation to conclude that D1 did, at the time when the 3 Wells Agreement was signed, hold itself out to 3 Wells as carrying on a business in advising on corporate finance. What if Michael’s acts do not count? Even if I were wrong in concluding D1 should be liable for Michael’s acts, I still found that D2 being the “directing mind and will” of D1, had held herself out to 3 Wells as carrying on such a business. + Taking into account the above facts concerning the acts of D2 alone performed to 3 Wells before, during and after the agreement was signed together with other circumstantial evidence, in particular her background and the clear content of the 3 Wells Agreement as set out above at paragraphs 59-65 and analysed at paragraphs 81-86, I am sure that D1 did, at the time when the 3 Wells Agreement was signed, hold itself out to 3 Wells as carrying on a business in advising on corporate finance. Evidence relating to UK Fur The Prosecution only called PW3, P WONG, the Chairman and executive director of UK Fur, which was in the business of fur trading. P WONG knew D2 for over 20 years. P Wong’s evidence was relatively brief. What D2 had done to UK fur included: D1 entered into a “Professional Financial Services Consultation Agreement” with UK Fur signed by P Wong and D2, on or around 20 October 2010; The draft of the above agreement was prepared by Michael which was sent to D2 for consideration before signature. After three days, D2 replied Michael, by way of email, that the draft had no problem. D2 also emphasised to Michael to make sure the payment would be well received;  +The UK Fur Agreement contained very similar terms as the one signed with 3 Wells which included: The agreement was named as “Professional Financial Services Consultation Agreement”; Engaging D1 as UK Fur’s “exclusive financial adviser” in relation to its listing in Hong Kong (Clause 1); Purporting to provide very similar scope of advisory services as stated in Clause 2; Providing for payment of $600,000 and the granting of share options equivalent to 1.5% of the number of issued shares upon successful listing as stated in Clause 5 by UK Fur to D1 which were for the latter acting as the “financial adviser”; The payment of costs to other professional listing-related intermediaries, e.g. lawyers, accountants and listing managers, were to be separately and additionally paid by UK Fur; The advisory services shall span over the financial accounting years from 2009 to 2011. UK Fur had paid a total sum of $600,000 to D1 in 4 instalments as stated in Clause 5 of the agreement; +During the oral discussion with D2 before signing the agreement, P Wong said that D2 only had offered services of lining up of a team of professionals for the listing matters, which he agreed upon cross examination that was what he expected too; P Wong admitted that he knew nothing about the listing procedures; When signing the agreement, although he had read it, he did not understand the content of it; On 26 October 2011, UK Fur and D1 entered into a Supplemental Agreement . This agreement varied the payment terms under clause 5 of P2 in that the consideration for the services was changed from $600,000 to $700,000. However, the additional $100,000 was not paid to D1; D2 introduced various professional parties to UK Fur including lawyers, accountants and sponsors for the listing process; By a Confirmation Letter dated 18 November 2011, signed by D2 and P WONG, the parties confirmed that D2 did not and would not perform the services stated in the original agreement. Instead, there was a totally different list of other services stated therein the letter that D1 had and would provide during the contractual period; +Further, the role of D1 being a “financial advisor” was changed to “financial consultant” pursuant to the Confirmation Letter. P Wong said that the confirmation letter was prepared on the advice of the Sponsor of UK Fur’s listing application as it was said that the services stated in clause 2 of the original agreement should have been provided by the sponsor but not D1; UK Fur’s holding company was listed on the GEM board of SEHK on 24 August 2012; On 1 August 2012, UKF Holdings granted an option of $14,400,000 shares equivalent to 1.5% of the number of issued shares in favour of D1 at the exercise price of $0.26. On 2 August 2012, D1 accepted the option in a letter signed by D2 on behalf of D1 Given the unequivocal terms stated in the contract signed between D2 and P Wong, I consider that there is sufficient evidence to show that D2 did hold itself out to UK Fur as carrying on such business in advising on corporate finance. I note that P Wong said that he did not understand the terms of the contract and expected D2 did nothing more than the introductory service. However, what the court concerned the most was what D1 had held itself out to be. I must say that I did have reservation on some part of the evidence of given by P Wong, who was a good friend of D2 for more than 20 years, concerning what he understood about the scope of services provided by D2 before the agreement was signed. The court is entitled to accept part of the evidence given by a witness. In any event, the +clear representation stated on the written agreement should be considered as the most forceful and reliable evidence of what parties were agreeing and representing. Defence said that P Wong’s understanding of what D2 said orally was in contrast with what was stated in UK Fur Agreement. Normally, the written contract should be considered as overriding if there is any discrepancy between the oral and written agreement. For example, in D2’s evidence, she orally agreed with the respective clients that she would charge around HKD$50,000 each month for her services. But in all the agreements concerned, the payment terms stated therein were quite different from what she told the clients before. This also showed that D2 intended to finalise all the terms of her service with her clients in the written but not the oral agreement. Strangely enough, the term about “Scope of Services” (Clause 2) has been substantially amended and the role of D1 being a “financial advisor” was changed to “financial consultant” by way of a Confirmation Letter dated 18 November 2011 after almost 13 months when the UK Fur Agreement was firstly signed. A compelling inference could be drawn that either the advisory services stated in Clause 2 of the original agreement had not actually been carried out or should not have been carried by D1, which was somehow discovered and needed to be rectified by UK Fur during the listing process. In either situation, it further supported the irresistible inference that D1 did, at the time when signing the contract, hold itself out to UK Fur as carrying on a business in advising on corporate finance. On the other hand, the fact that, D1 did, at some stage after signing the agreement and performing part of the unregulated activity, try to rectify its legal status with UK Fur only showed that it might not be aware what +it/D2 was doing was not permitted by the law. However, ignorance of law is no defence. Clearly, section 114 does not only target those who actually carried on a business in the regulated activity but also those who held itself out to others as carrying on such business. In light of the unequivocal terms set out in the UK Fur Agreement and the other circumstantial evidence as set out above, I am sure that D1, at the time when the UK Fur Agreement was signed, actually held itself out as carrying on the business in advising on corporate finance. Evidence in relation to New Bonus The Prosecution only called PW4, KF WONG, another friend of D2 and also the director of New Bonus, which was in the business of selling luxury yachts. His evidence was quite similar to what was given by P Wong of UK Fur. On the evidence, what D2 had done to New Bonus included: Around the end of December 2010 and early January 2011, KF WONG on behalf of New Bonus entered into a Professional Financial Services Consultation Agreementwith D2 signing on behalf of D1; The New Bonus Agreement was also in very similar terms as 3 Wells Agreement and UK Fur Agreement which included: +The agreement was named as “Professional Financial Services Consultation Agreement”; Engaging D1 as New Bonus’s “exclusive financial adviser” in relation to its listing in Hong Kong (Clause 1); Purporting to provide very similar scope of advisory services as stated in Clause 2; Providing for payment of $680,000 and the granting of share options equivalent to 3% of the number of issued shares upon successful listing as stated in Clause 5 by New Bonus to D1 were for the latter acting as the “financial adviser”; The cost for other professional parties were to be separately and additionally paid by New Bonus; The advisory services shall span over the financial accounting years from November 2011 to December 2012. D1 was paid $170,000 by New Bonus within 10 days after the written agreement was signed; KF WONG said, upon cross-examination, that before signing the written agreement, he and D2 did discuss about D2 introducing professional parties to New Bonus for the listing application and +that he himself did not expect D2 to provide other services regarding the listing process. I have to consider whether D2, on behalf of D1, by signing of an unequivocal written agreement as well as providing the introductory services to New Bonus could amount to “holding-out” in carrying on a business in advising on corporate finance. Clearly, D2, on behalf of D1, did represent in the New Bonus Agreement that services of advising on corporate finance would be provided to New Bonus. In fact, the first instalment of $170,000 was paid to D1 by New Bonus shortly after the agreement was signed. The listing application of New Bonus was somehow not proceeded with, but part of the services, namely the introductory service as specified in Clause 2 had been provided by D2 as admitted by her. In light of all the evidence concerning what D2, on behalf of D1, had done to New Bonus before, during and after the signing of the New Bonus Agreement, I have no hesitation to conclude that D1, at the time when the contract was signed, did hold itself out to New Bonus as carrying on the business in advising on corporate finance. Defence said that KF Wong himself did not expect D2 would provide services other than the introductory services. As what I have said earlier, the court is mostly concerned of what D2 was doing on behalf of D1. Although KF Wong testified that during prior discussion what he understood from D2 was that she would be introducing some professional parties for the New Bonus’s listing, but that would not negate the clear fact that D2, on behalf of D1, had later on by way of an unequivocal written agreement held herself out as carrying on the business in advising on corporate finance. I therefore consider that D1 had at the material +time held itself out to New Bonus as carrying on the business in advising on corporate finance. Can the defence be made out by D1 factually? I pray in aid of the holding in HKAR v Adams Secuforce (International) Limited [2008] 1 HKLRD 207 relating to the steps in considering the defence of “reasonable excuse”: “the defence of “reasonable excuse” had first to be examined and identified; secondly, that it was necessary to determine whether the excuse was genuine; and thirdly, an assessment was necessary to determine if the excuse was reasonable. The Court said that the defendant's belief or his state of mind were relevant factors and may afford some assistance to the trier of fact but the final answer must always come from an objective assessment of the particular facts of each case. The Court said that that assessment required a consideration of not merely the defendant's belief and state of mind but it required the application of community standards.” In a recent case HKSAR v Li Fung Ching Catherine [2012] 3 HKLRD 377, the Court of First Instance also held that: “In relation to non-payment of wages under section 23 of the Employment Ordinance, the question of “reasonable excuse” should be considered from the perspective of a reasonable man, namely +whether there was a cause which a reasonable man would regard as an excuse, consistent with a reasonable standard of conduct. Regard must be had to the objective of the Ordinance, which was to provide for the protection of the wages of employees.” In reaching my conclusion as to whether the defence could be made out factually, I bear in mind the principles above and the objective of the Ordinance in question which is to protect the investors and regulate the industry of securities and futures. The defence contended that D2 firstly, was not aware of the content of all the agreements she had signed with the respective clients and secondly, did not know what Michael had done to 3 Wells. I have to consider whether the defence has successfully proved the above two assertions, if unrebutted, could amount to a “reasonable excuse” (i.e. the statutory defence) or an honest belief on reasonable grounds that what she did was not holding herself out as carrying on a business in advising on corporate finance (i.e. the common law defence). D2 elected to give evidence and I accept that the evidential burden for both statutory and common law defence has been satisfied by the defence. What I have to do next is to consider whether the prosecution could successfully rebut, beyond all reasonable doubt, that what was said by D2 in her evidence could never be a “reasonable excuse” (statutory defence) nor in any way an “honest belief on reasonable grounds” (common law defence). Did D2 know the content of the agreements? As narrated earlier, D2 is an educated lady and understands English. She has been dealing in the securities industry for years and her own +company has gone through the process of listing in 2009-2011. She testified that the three agreements in question were prepared by Michael on her request but she did not have chance of reading through them in details before signing. She said she had told Michael to look for similar agreement which provided only introductory services for listing. On the evidence, the draft of UK Fur Agreement was sent to D2 by Michael for her perusal.  The draft was subsequently approved by her as showed from the e-mail he replied to Michael. D2 however told the court that the first time when she had a chance to read the terms in details of the three respective agreements was when she was asked to do so during her evidence-in-chief in court. She said what she concerned the most was to get money from the clients on time and she was not concerned with other terms of the agreement because the three clients were all her friends. She even told the court that the agreements were not important. She also excused that she was just too busy, both in family and work, to read the content of the agreements. I must say that D2’s above assertions in court were in my view no more than a pack of lies. Being such a professional in the industry, how can one believe that she would not read carefully the terms before signing the contracts? D2 said what she concerned the most was the receipt of payment which could most effectively be showed and enforced in the agreements. Payment could only be collected when the duties of D1 was duly performed as specified in the agreement. Therefore, both the terms of payment and scope of services were equally important. D2’s saying that she only had a glance on the payment clause but not other terms was totally unreasonable. The most utterly unbelievable part +was that she only read it for the very first time when she was giving evidence in court. How could one believe such a dishonest and ridiculous piece of evidence? 102. At least, D2 would read the agreements when she was informed, on two occasions, that the same had problems. Regarding UK Fur’s case, a Supplemental Agreement dated 26 October 2011 and Letter of Confirmation dated 18 November 2011 were signed by both parties, specifying the substantial changes of scope of services and the role of D1. Similarly, in the case of 3 Wells, a letter back-dated to 31 May 2012 to terminate the original 3 Wells Agreement was received by her in late 2012. D2 although admitted that she had received all the abovesaid documents denied that she had paid much attention to the same. That again in my view defies all common sense. The above documents were unusual in nature and hardly can one be convinced that D2, being the directing mind of the party concerned of the agreements, would not have paid any attention to them. It is wholly unconvincing that D2 have not read again what she had signed when the terms of the agreements had been substantially changed. It is also absurd that D2 would not have read the contracts again when she was being investigated by SFC which was well before giving evidence in court. In any event, I do not believe that D2 have not read through the respective agreements before she signed each of them. There is no evidence suggesting she was in a rush at all. As a matter of fact, the first draft of UK Fur Agreement was sent to her email account by Michael for her perusal and was approved three days later. In 3 Wells’ case, Cheuk said that after he signed the 3 Wells Agreement, the same was sent to D2’s office for her signature. In both cases, D2 had plenty of time to read and understand the agreements before signing. + Although Michael did not give evidence, D2’s evidence did not suggest any ground that Michael, being her reliable agent all along, would depart from her instructions on preparing the appropriate agreements without any reasons. On the other hand, D2 said that she had known Michael for a long time and that she regarded Michael as a very competent assistant of her who could handle things very well. These must be the reasons why D2 would employ him as the company secretary before and in the present case the person responsible for most of the dealings with the clients concerned. D2 said Michael was very familiar with the listing procedures and she herself also had the experience and knowledge of the same as CL Group had gone through the listing process before. I have no doubt that the agreements must have been prepared according to D2’s instructions. If D2’s evidence were true, all the agreements prepared by Michael turned out to be substantially departing from her instructions. If the services D2 intended to provide were just so simple as alleged by her, why Michael would not have just drafted an agreement with very simple terms but acted against D2’s instructions and prepared a much more detailed one instead? On the evidence, all the money was firstly paid to D1 and the substantive work was mostly done by Michael. What was the point for Michael to perform so much more arduous duties for the clients if the same amount of money would be received by D2 and him by just doing the introductory services? This is again illogical. D2 also testified that as she trusted Michael very much and she was very busy both at work and family, she simply did not care to read through them but just signed them right away. Such excuses are unacceptable to me. It is entirely improbable that D2 would not have read such clear and comprehensible terms even once. Each agreement contained only several pages and the terms were all very similar, clear and easy to understand. D2’s such excuse/belief was +neither reasonable nor honest at all in my view. I am sure that D2 must have full knowledge of the content of all the agreements in question. Also, after signing the contract, D2 was still involved in the process, at least by introducing the professional parties for and attending the first meeting with the respective clients as she testified. The receipt of payment on schedule did further infer that what she signed was what she meant. Further, the considerable monetary remuneration, let alone saying the granting of share options, received by D1 from the clients was incompatible to D2’s allegation that she intended to provide and had provided introductory services only. From Cheuk’s evidence, he did conduct some research on the fees charged for similar advisory services for listing provided by other companies which ranged from $300,000 to $500,000. Defence submitted that the prosecution should have called independent evidence to prove the normal charges for such advisory service for listing before one could comment on the reasonableness of the costs charged by D1 for the introductory service, I consider common sense, Cheuk’s evidence and other circumstantial evidence suffice to rebut D2’s assertion that the cost D1 had received from the clients only intended to cover introductory and liaison services. With the above reasons, I am of the view that the prosecution has successfully rebutted beyond all reasonable doubt that D2’s assertion that she was not aware of the content of the agreement concerned when she signed each of them. The allegation of such “belief” or “excuse” was neither honest/genuine nor reasonable. +Did D2 know what Michael was doing on her behalf Regarding D2’s contention that she was not aware of Michael’s acts on 3 Wells, it is also improbable and illogical to me. Michael was her able assistant, receiving a handsome amount of monetary remuneration i.e. almost half of what D1 had received. Michael and D2 were working in the same office at least for the project of 3 Wells, as Cheuk testified that he did see Michael whenever he visited D2. And it was always Michael receiving and discussing the matters with him. Cheuk said clearly that the first staff D2 had introduced to him was Michael. All along, Cheuk understood Michael was acting on D2’s behalf. No one has ever informed 3 Wells that the relationship between D2 and Michael had changed in any way. It was D2’s admission that she had entrusted Michael to look into the internal information of 3 Wells to assess its capacity to be listed for her own benefit but not for 3 Wells. It was said by defence that as Cheuk had testified that 3 Wells already “knew” that they were capable of being listed and therefore there was simply no need for 3 Wells to be advised by D1 on the listing matter. This submission, with respect, was convoluted and misleading in my view. I find that D2 was simply trying to explain away the fact that Michael had on the undisputed evidence looked into 3 Wells’ internal audit and gave advice as to its ability for listing. Although Cheuk was confident about his own company, it did not mean that he did not need D1’s advice on its capacity and procedures to be listed. In fact, that was the whole purpose for Cheuk to engage D1 as he was not familiar with the listing procedures and manpower and he did believe D2, like a martial art instructor as said more than once by Cheuk, had the ability to advise 3 Wells on +the listing process as a whole. The assertion of D2 that the assessment of listing capacity of 3 Wells by Michael was only for her but not 3 Wells was without force. Further, when Michael telephoned Lee to discuss the urgent request for termination of 3 Wells Agreement, the finalised letter was sent to and received by D2. All these could provide the court with sufficient evidence to draw an irresistible inference that D2 was well aware of Michael’s acts to 3 Wells all along and that Michael was acting with D2’s actual and specific authority at all material times. I am satisfied that the prosecution has disproved beyond reasonable doubt that the allegation of honest and reasonable belief/excuse that D2 was not aware of Michael’s doing and therefore thought that she was not holding out as carrying on the business in advising on corporate finance does not exist. Neither is such excuse/belief, if ever existed, relied on reasonable. As such I consider the prosecution has proved beyond reasonable doubts all the elements of all “holding-out” offences against D1 and rebutted beyond reasonable doubt all the possible defences. I therefore convict D1 of summonses ESS 30673, 30675 and 39231 of 2013. Fallback position--- Did D1 have mens rea in the “holding-out” offences? If I were wrong in ruling the “holding-out” offence against D1 under section 114 as creating strict liability falling within the category of second alternative, meaning the offences in fact require proof of full mens rea on the part of D1, I still find D1 guilty of the offences. On the evidence, as I have analysed as above which I do not intend to repeat, it showed clearly that D2, being the directing mind of D1, knew full well +the content of all the Professional Financial Consultancy Agreement signed with the three respective clients. She was clearly in control of D1 and she was the one who received the payments and then shared almost half of it with Michael in each and every case. Cheuk and Lee of 3 Wells said that they understood Michael was all along working on behalf of D1/D2. I am sure that what Michael did to the clients was all within D2’s authority and delegation. Further, she was also responsible for using her own connection and knowledge to introduce the professional teams for her clients’ listing applications. D2 must have knowledge that D1 did represent itself as carrying on a business in advising on corporate finance. When signing the respective agreements, D1, with D2’s directing mind, did intend to hold itself out to all respective clients as carrying on a business in advising on corporate finance which were clearly shown in the agreements and supported by all the circumstantial evidence. Summonses against D2 As I have found D1 guilty of summonses ESS 30673, 30675 and 39231of 2013 laid under section 114(1) and (8) of the Ordinance, I now move on to consider whether D2 should be liable for the respective “attributable” offences on the same facts laid against her under section 390. It is stipulated in section 390 of the Ordinance that: “1) Where the commission of an offence under this Ordinance by a corporation is proved to have been aided, abetted, counselled, procured or induced by, or committed with the consent or connivance of, or attributable to any recklessness on the part of, any officer of the corporation, or any person who was purporting to act in any such +capacity, that person, as well as the corporation, is guilty of the offence and is liable to be proceeded against and punished accordingly.” In Schedule I of the Ordinance, “officer” in relation to a corporation is defined as: “officer (高級人員)- (a) in relation to a corporation, means a director, manager or secretary of, or any other person involved in the management of, the corporation;” The meaning of “connivance” has been considered, at paragraphs 60-65, in HKSAR v Li Fung Ching Catherine [2012] 3 HKLRD 377: “60. The terms used in s.64B of the Employment Ordinance are "consent", "connivance" and "neglect". It is spelt out clearly that the intention is to target the three different situations. 61. In the Ordinance, there is no definition given to the term "connivance". Therefore, the term "connivance" should be interpreted in accordance with its usual meaning. 62. The New Longman Advanced Chinese Dictionary defines the word "connivance" as indulgence and non-interference of misconduct. +63. To connive at someone's act, whether or not one agrees or disagrees with it is not important, what is important is one fails to stop it from happening knowingly. 64. The term "connivance" is used in the English version of the Ordinance. According to the Shorter Oxford English Dictionary, the definition of "connivance" includes assistance in wrongdoing by conscious failure to prevent or condemn; or tacit permission. The word "connive" means shutting one's eyes to (something) . 65. In the English-Chinese Dictionary of Joint Publishing, "connivance" carries the meaning of "turning a blind eye to an action one ought to oppose; and tacit permission" which corresponds with the translation given in The Oxford (one wrong character) English-Chinese Dictionary.” It is not in dispute that D2 was an officer of D1 at the material times. As I have ruled above that D2 did have knowledge of what D1, with the assistance by Michael, was doing all along and the content of the respective agreements, I have no difficulty at that to conclude that all the “holding-out” offences under section 114 could not have been committed by D1 without the assistance or consent or connivance of D2. The whole thing was procured and induced by D2 as elicited in the trial. At the very least, the commission of the offences must be attributable to the recklessness on the part of D2. As such I find that the commission of the offences by D1 were all aided, abetted, counselled, procured or induced by, or committed with the consent or connivance of, or attributable to any recklessness on the part of D2. Without any doubt, I find D2 guilty of all the summonses laid against her under 390 offences in respect of each of convicted offences stated above. In other words, I convicted D2 of summonses nos. ESS 30674, 30676 and 39232 of 2013 accordingly. + Conclusion To conclude, I am satisfied that the prosecution has proved beyond all reasonable doubt that D1 is guilty of summonses nos. ESS 30673, 30675 and 39231 of 2013 and D2 is guilty of summonses nos. ESS 30674, 30676 and 39232 of 2013 accordingly. (June Cheung) Magistrate Representation : Miss PO Wing-kay, instructed by the Securities and Futures Commission, for the Prosecution Mr Peter Duncan, SC and Mr Edwin Choy, instructed by Haldanes, for D1 and D2 + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/en_cases_hkmagc/2014_HKMagC_7/case.json b/en_cases_hkmagc/2014_HKMagC_7/case.json new file mode 100644 index 0000000..4f848cf --- /dev/null +++ b/en_cases_hkmagc/2014_HKMagC_7/case.json @@ -0,0 +1,26 @@ +{ + "Date": "11 Jun, 2014", + "Action No.": "ESS30671/2013", + "Neutral Cit.": "[2014] HKMagC 7", + "case_title": "SECURITIES AND FUTURES COMMISSION V. C.L. MANAGEMENT SERVICES LTD AND ANOTHER", + "page_title": "SECURITIES AND FUTURES COMMISSION V. C.L. MANAGEMENT SERVICES LTD AND ANOTHER | [2014] HKMagC 7 | HKLII", + "case_history": [ + { + "name": "ESS30671/2013", + "link": "https://www.hklii.hk/en/appealhistory/ESS/2013/30671" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkmagc/2014/7", + "neutral_cit": "[2014] HKMagC 7", + "court_code": "HKMAGC", + "content": "ESS30671/2013 SECURITIES AND FUTURES COMMISSION v. C.L. MANAGEMENT SERVICES LTD AND ANOTHER\nESS30671/2013 SECURITIES AND FUTURES COMMISSION v. C.L. MANAGEMENT SERVICES LTD AND ANOTHER\nESS30671/2013 SECURITIES AND FUTURES COMMISSION v. C.L. MANAGEMENT SERVICES LTD AND ANOTHER\nESS 30671-30676/2013\nESS 39231-39232/2013\nIN THE EASTERN MAGISTRATES COURT OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCASE NO. ESS 30671-30676 OF 2013 AND ESS 39231-39232 OF 2013\n----------------------\nSecurities and Futures Commission\nv\nC.L. Management Services Limited\n1st Defendant\nAU Suet-ming, Clarea\n2nd Defendant\n----------------------\nCoram : Magistrate, June Cheung\nDates of hearing : 27-28 February, 3 March and 3 April 2014\nDate of verdict : 29 April 2014\nDate of statement of findings : 11 June 2014\n--------------------------------------------\nSTATEMENT OF FINDINGS\n--------------------------------------------\nIntroduction\nThe Summonses\n1.\nIn the present case, a total of 8 summonses have been laid against C.L. Management Services Limited (“D1”), a company registered in Hong Kong and Madam AU Suet-ming, Clarea (“D2”), being the sole shareholder and director of D1. The summonses are summarised as follows:\na.\nSummonses against D1\n(four summonses in total\n[1]\n):\n(I) ESS 30671/2013 and alternative summons ESS 39231/2013: It is alleged that D1, without reasonable excuse, has carried on a business in a regulated activity, namely, advising on corporate finance, in relation to a client company, 3 Wells Group holdings Limited (“\n3 Wells”\n) without licence\n[2]\n(ESS 30671/2013). Alternatively, it is alleged that D1 has held itself out to 3 Wells as carrying on a business in advising on corporate finance\n[3]\n(ESS 39231/2013);\n(II) ESS 30673/2013 and 30675/2013: it is alleged that D1 has respectively held itself out to another two client companies, UK Fur Limited (\n“UK Fur”)\nand New Bonus Holdings Limited (\n“New Bonus”)\nas carrying on a business in advising on corporate finance\n[4]\n.\nb.\nSummonses against D2\n(four Summonses in total\n[5]\n): It is alleged that D2, being an officer of D1, has aided, abetted, counselled, procured or induced D1 in committing the above offences under section 114 of the Ordinance, or these offences were committed with the consent or connivance of D2 or was attributable to her recklessness.\n[6]\n2.\nI convicted, after trial, D1 of three summonses, i.e. ESS 39231/2013,\n30673/2013 and 30675/2013 concerning the “holding- out” offences under section 114(1)(b) of the Ordinance and D2 of the three corresponding attributable offences under section 390 (summonses ESS 39232/2013, 30674/2013 and 30676/2013). Upon conviction, I imposed fines in a total sum of $900,000\n[7]\nand $600,000\n[8]\non D1 and D2 respectively. I also sentenced D2 to a total term of imprisonment for 6 months suspended for 18 months\n[9]\n. D1 and D2 now appeal against both their convictions and sentences.\nThe Issues\n3.\nThe main issues on the law raised at trial are:\nI. Whether the summonses against D1 are strict liability offences? and if so, what defence is available and the burden of proof?\nII. Whether the term “without reasonable excuse” under section 114(8) creates an element of the offence or a defence only?\nIII. Could D1 be liable for acts of Michael, being D2’s agent?\n4.\nWhile the issues on the evidence are:\nI. Was Michael acting on behalf of D2 within her actual and specific authority to give advice on corporate finance?\nII. Whether D1 was “carrying on” the business in advising on corporate finance in respect of its dealing with 3 Wells?\nIII. Whether D1 was “holding out” as carrying on such business in advising on corporate finance in respect of its dealings with the three clients concerned?\nIV. Could the defences, if any, be factually made out by D1/D2, i.e. 1) did D2 know the content of the agreements or 2) did D2 know what Michael was doing on her behalf?\nBackground\nThe Prosecution case\n5.\nThe facts of the case are largely undisputed. The prosecution case mainly relied on the evidence given by four prosecution witnesses. They were either the chairmen/senior officers of the 3 respective client companies. Mr Clement CHEUK, PW1,\n(“Cheuk”)\nwasthe Chairman, and Ms Phoebe Lee, PW2,\n(“Lee”)\nwas the Chief Financial Officer of 3 Wells. They were called to give evidence relating to 3 Wells. While Mr Pat WONG, PW3\n(“P Wong”\n), the Chairman of UK Fur and Mr WONG Kam-fai, PW4\n(“KF Wong”\n), the chairman of New Bonus gave evidence relating to UK Fur and New Bonus respectively. The Prosecution originally intended to call a Michael ANG\n(“Michael”\n), who was engaged by D2 as her agent at the material times responsible for dealing with the three respective client companies. However, after Michael was called and taking oath, he suddenly, on his own initiative, raised with court that he was unwilling to give evidence as he worried that what he said might incriminate himself. The Prosecution finally informed the court that they decided not to call Michael and would not rely on his evidence at all.\n[10]\n3 Wells\n6.\nRegarding 3 Wells, it is alleged by the Prosecution that, during the period between July 2011 and January 2012, D1 has carried on a business in advising on corporate finance for 3 Wells with a view to assisting the latter to be listed on the Growth Enterprise Market\n(“GEM”)\nBoard of the Stock Exchange of Hong Kong Limited\n(“SEHK”).\nBy signing a detailed and unequivocal “Professional Financial Consultation Services Agreement”\n(“3 Wells Agreement”\n), Exhibit P12, with 3 Wells around July/August 2011, which was procured by D2, D1 did assign and authorise a team of her staff headed by Michael ANG (“\nMichael”\n) to have meetings, both in Hong Kong office as well as factory located in Mainland, with senior officers of 3 Wells with a view to assessing their capability of being listed on the GEM Board. D2 and Michael, representing D1, also assisted 3 Wells to line up a professional team consisting of the right professionals, including lawyers, accountants and sponsors to substantially handle the listing matters.\n7.\nPursuant to the aforesaid 3 Wells Agreement, 3 Wells made two payments in the sum of HK$ 150,000 each to D1 on 31 August 2011\n[11]\nand 14 May 2012\n[12]\nrespectively.\n8.\nAround September/October 2012, upon request by Michael, representing D1, allegedly due to problems of “internal audit”, 3 Wells agreed to terminate the 3 Wells Agreement with D1. This was done by way of a letter drafted by Michael and finalised by Cheuk and Lee.\n[13]\nCheuk said that the agreement was terminated upon D1’s promise that a full refund of HK$300,000 would be made by D1 to 3 Wells. However, no refund was ever made by D1.\n9.\nIt is the prosecution case that what D1 has done amounted to carrying on a business in “advising on corporate finance”, or alternatively holding itself out to 3 Wells as doing so.\n[14]\nMoreover, D2, in her capacity as an officer of D1, did aid, abet, counsel, procure or induce the commission of the offence under section 114 by D1 or the offence was committed by D1 with her consent or connivance or was attributable to her recklessness.\n[15]\nUK Fur and New Bonus\n10.\nThe evidence given by P Wong and KF Wong was relatively brief. The prosecution said that the mere fact that a similar written Professional Financial Consultation Services Agreement had been signed between D1 and UK Fur\n(“UK Fur Agreement”)\nas well as between D1 and New Bonus (“\nNew Bonus Agreement”\n) respectively was sufficient to prove that D1 had held itself out to the above two companies as carrying on a business in advising on corporate finance.\n11.\nAs a matter of fact, by completing the UK Fur Agreement, UK Fur has paid a total sum of HKD $600,000 to D1 in four instalments during the period between 20 October 2010 and 30 June 2011. Additionally, pursuant to the UK Fur Agreement, upon submission of UK Fur’s listing application to SEHK, D1 was granted 14,400,000 option shares at the exercise price of HKD $ 0.26 per share on 1 August 2012 which was accepted by D2 on 2 August 2012.\n[16]\nWith respect to New Bonus, in pursuant to the New Bonus Agreement, a sum of HKD $ 170,000 was paid to D1 by New Bonus on 3 January 2011.\n12.\nThe prosecution said that all the summonses against D1 laid under section 114 of the Ordinance require prosecution to prove “without reasonable excuse” as an element of the offence and that the prosecution has succeeded in proving beyond reasonable doubt that D1 had at the material times, without reasonable excuse, held itself out to the UK Fur and New Bonus as carrying on a business in advising on corporate finance and D2, being an “officer” of D1, was liable attributably in all the commission of the offences.\nDefence case\n13.\nD2 elected to give evidence herself but called no defence witness. She basically said that although she had signed all the relevant written agreements with the respective clients, she was not aware of the actual content stated therein and had no intention at all to carry on or hold herself out to the respective clients as carrying on a business in advising on corporate finance. What she actually had done was offering to the client companies that she, with the assistance of Michael, could line up a team of suitable professionals and participate in the liaison work for the listing matters only. After signing the contracts and attended the first introductory meeting with the professionals for the respective clients, she basically did nothing and was not sure what Michael and his team was doing to the respective clients. The three written agreements in question\n[17]\nwere all prepared by Michael upon her instruction but she has not read through them before signing.\n14.\nDefence contended that first of all, what D1 and D2 have done in respect of 3 Wells did not amount to carrying on a business in advising on corporate finance. Additionally, neither was there any sufficient evidence to prove D1 had held itself out to the respective companies as carrying on a business in such an activity. D2 had no intention whatsoever in carrying on or holding herself out as carrying on a business in advising on corporate finance. The defence submitted that the prosecution was required to prove\nmens rea\nfor all the summonses against D1 and that the prosecution has failed to do so. Further, what D2 said in her evidence could amount to a reasonable excuse and the statuary defence had been made out factually. It was submitted by the defence that as the commission of offences by D1 could not be proved, D2 should not be liable for all the “attributable” offences under section 390 of the Ordinance.\nAnalysis\nDiscussion on the Law\n15.\nThere are quite a number of legal issues raised during the trial by both parties that I need to resolve before analysing the evidence.\nIssue I: Whether the summonses against D1 are strict liability offences?\nThe Five Alternatives\n16.\nThe question of whether the summonses against D1, in contravention of section 114 (1) and (8) of the Ordinance, created strict liabilities or offences with full intent is never an easy one. The principles and application of the same have been thoroughly discussed in\nHin Lin Yee v HKSAR\n(2010) 13 HKCFAR 142\nand subsequently\nKulemesin Yuriy & Tang Dock Wah v HKSAR,\nFACC 6 and 7 of 2012, now the landmark cases in this area of law decided by the Court of Final Appeal.\n17.\nHin Lin Yee\nhas helpfully set out, at paragraph 96, five possible alternatives which were subsequently reformulated, by addressing the possible alternative mental requirements relating to the consequences and not just the circumstances of the defendant’s conduct\n,\nin another decision of the Court of Final Appeal,\nKulemesin Yuriy & Tang Dock Wah v HKSAR,\nFACC 6 and 7 of 2012, unreported , at paragraph 83:\n(a) first, that the\nmens rea\npresumption persists and the prosecution must prove knowledge, intention or recklessness as to every element of the offence (“\nthe first alternative”\n);\n(b) second, that the prosecution need not set out to prove\nmens rea\n, but if there is evidence capable or raising a reasonable doubt that the defendant may have acted or omitted to act in the honest and reasonable belief that the circumstances or likely consequences of his conduct were such that, if true, liability would not attach, he must be acquitted unless the prosecution proves beyond reasonable doubt the absence of such exculpatory belief or that there were no reasonable grounds for such belief (\n“the second alternative”\n);\n(c) third, that the presumption has been displaced so that the prosecution need not prove\nmens rea\nbut that the accused has a good defence if he can prove on the balance of probabilities that he acted or omitted to act in the honest and reasonable belief that the circumstances\nor\nlikely consequences of his conduct were such that, if true, he would not be guilty of the offence (\n“the third alternative”\n);\n(d) fourth, that the presumption has been displaced and that the accused is confined to relying on the statutory defences expressly provided for, the existence of such defences being inconsistent with the second and third alternatives mentioned above (\n“the fourth alternative”\n); and\n(e) fifth, that the presumption is displaced and the offence is one of absolute liability so that the prosecution succeeds if the prohibited act or omission is proved against the accused, regardless of his state of mind regarding the relevant elements of the offence in question (\n“the fifth alternative”\n).”\nShould “mens rea” be displaced?\n18.\nI have born in mind the principle stated by Ribeiro PJ in\nHin Lin Yee,\nat paragraph 41\n,\nthat “where the offence-creating provisions are silent or ambiguous as to the mental requirements, it is generally accepted that the starting-point is that the statute must be construed adopting the presumption that it is incumbent on the prosecution to prove\nmens rea\nin relation to each element of the offence”. As Lord Scarman emphasised that the presumption of\nmens rea\n“can be displaced only if this is clearly or by necessary implication the effect of the statute”.\n[18]\n19.\nTo summarise what Ribeiro PJ said in\nHin Lin Yee\n[19]\n, the considerations that are relevant to the proper statutory construction in respect of the issue of displacement of presumption of\nmens rea\ninclude:\n(a) The statutory language;\n(b) The nature and subject matter of the offence;\n(c) The legislative purpose.\nThe statutory language\n20.\nSection 114(1) and (8) provides that:\n“(1) Subject to subsections (2), (5) and (6), no person\nshall\n-\n(a) carry on a business in a regulated activity; or\n(b) hold himself out as carrying on a business in a regulated activity….\n(8) A person who,\nwithout reasonable excuse\n, contravenes subsection (1) commits an offence and is liable-\n(a) on conviction on indictment to a fine of $5,000,000 and to imprisonment for 7 years and, in the case of a continuing offence, to a further fine of $100,000 for every day during which the offence continues; or\n(b) on summary conviction to a fine of $500,000 and to imprisonment for 2 years and, in the case of a continuing offence, to a further fine of $10,000 for every day during which the offence continues.” [\nmy emphasis\n]\n21.\nReading through section 114(1), I cannot see there are words or text stated therein which can be construed as carrying a connotation of knowledge or intention. For example, the common words of criminal intention like “knowingly”, intentionally” or “recklessly” are absent from the provision. However, the word “shall” is used is used in the provision.\n22.\nIn\nLI Yiu-kee v Chinese University of Hong Kong\n, unreported, CACV No.93 of 2009\n,\nwhen the Court of Appeal considered the meaning of “shall” appearing in the provision concerned, the entry below stated in the Hong Kong English-Chinese Legal Dictionary, Butterworth, 2005 was quoted with assistance:\n\"Mandatory\n--\nenforcing strict compliance; not directory. Whether a provision in a statute conferring a power or imposing a condition to be observed is mandatory is a question of the intention of the legislature in the context of the statute as a whole … .\nWhile the use of the word 'shall' or 'must' is prima facie indicative of a mandatory provision\n, care should be taken before identifying a provision to be mandatory to ascertain the consequences if the requirement is not complied with, particularly when such consequences are not spelt out in the provision …\" (my emphasis)\nThe nature and subject matter of the offence\n23.\nWhile exceptions exist, the more serious the offence in terms of penalty and social obloquy, the less likely it is that the presumption will be held to have been supplanted.\n[20]\nOn the other hand, as Ribeiro PJ said at paragraph 142 of his judgment in\nHin Lin Yee\n, there is generally less need to feel inhibited about overriding the presumption in relation to what may compendiously be call “regulatory offence”. Lord Reid in\nR v Warner\n[1969]\n2 AC 256\n, at paragraph 271, gave some examples of such offences which in the English context, were held to impose absolute liability. They were offences under public health, licensing and industrial legislation.\n24.\nIt is of note that the long title of the Ordinance provides that:\n“An Ordinance to consolidate and amend the law relating to financial products, the securities and futures market and the securities and futures industry,\nthe regulation\nof activities and other matters connected with financial products, the securities and futures market and the securities and futures industry,\nthe protection of investors\n, and other matters incidental thereto or connected therewith, and for connected purposes.”[\nMy emphasis\n]\n25.\nThe subject matter and nature of offences governed under section 114 are obviously “regulatory” in nature concerning “licensing” matters and the Ordinance aims at protecting the investors. I have not lost sight that the maximum penalty upon conviction on indictment is 7 years’ imprisonment, and on summary conviction is 2 years’ imprisonment. However, despite the relatively heavy penalty, and possibly the serious professional ramification imposed on the offenders upon conviction of the offence, carried by the provision, I consider that this is an offence attaches comparatively less “social obloquy” or “stigma” to the offender, especially when this kind of offence would most commonly be committed by a corporate body.\n26.\nIt is worth noting that when reading section 114(1) and section 390 together, it is clear that when an officer is involved or contributed to the commission of the offences of s.114, the provision of s.390 then deliberately require proof of\nmens rea,\nnamely “recklessness”, “with consent” “induced” or “procured” etc. It is not difficult to infer that it must be due to the presumption of\nmens rea\nand the fact that stigmatising effect on a natural person is much more than on a corporate body.\nThe legislative intent\n27.\nRibeiro PJ continued, at paragraph 143, in his judgment of\nHin Lin Yee\n: “the legislative purpose is obviously important. If, in the light of the nature and subject matter of the offence, construing the provision to require full\nmens rea\nwould make successful prosecution so unlikely that the statutory objectives would be frustrated, this must be given weight. Where this is a legitimate consideration, the response should often be to consider whether the adoption of an intermediate basis of liability accords with the true legislative intention.”\n28.\nHaving considered the subject matter and nature of the offences in question, I consider that the statutory objective of section 114(1) of the Ordinance will be frustrated if proof of full\nmens rea\nis required. It is very difficult for the prosecution to prove a company or the directing mind of it is intentionally or knowingly carrying on or holding itself out as carrying on the business in advising on corporate finance. It is common sense that companies of securities and futures industry normally involve sophisticated division of labour due to its complex nature of work. The actual works and daily operations usually are not carried out by the directing mind of the company but its professional staff. It will defeat the whole purpose of the Ordinance to protect the investors many of which may not have much knowledge of the industry and rely heavily on the conducts and integrity of their financial adviser. The onerous duty to prove full\nmens rea\nwould render the regulatory function of the governing body and enforcement of the provision ineffective.\n29.\nFurthermore, sections 114(1) and 390 of the Ordinance cannot be read in isolation. It is very clear that the legislation deliberately requires proof of\nmens rea\nin respect of section 390 when “officer” is targeted. I am of the view that it does shed light on the legislative intent. If\nmens rea\nis required for section 114(1), the legislator could have easily spelt it out like what it is done in section 390 of the Ordinance.\n30.\nTaking into account all the relevant principles of statutory construction set out in\nHin Lin Yee\n, I consider that the presumption of\nmens rea\nshould be displaced in respect of the offences created in section 114(1).\nAre the offences under section 114(1) absolute liabilities?\n31.\nRegulatory offences do not as a rule involve conduct falling within the fifth of the aforementioned categories where absolute liability may be justified. Many regulatory offences may fall within other categories of the five alternatives. The legislative policy underlying the regulatory offence may justifiably be to require diligent proactive management or supervision on the part of the person subjected to the duty.\n32.\nIn the case\nKulemesin Yuriy\n, Ribeiro PJ “noted that when dealing with a serious as opposed to regulatory offence, a court considering whether the presumption of\nmens rea\nshould be displaced – and if so, replaced by what – is likely to find it more appropriate to infer that the second (rather than the third) alternative best reflects the presumed intention of the legislature since that alternative lies closer to the full\nmens rea\nend of the spectrum and does no violence to the presumption of innocence, as befits a serious offence. On the other hand, the third alternative is likely to be more compelling in relation to a regulatory offence.”\n[21]\nThat is also in line with the observation made by him in\nHin Lin Yee\nat, paragraph 161, that “the policies underlying regulatory offences are likely to be best reflected by construing the offences as falling within the third alternative, founding liability on the absence of due diligence or the absence of honest and reasonable belief”.\n33.\nSince section 114(1) carries heavy penalty with maximum term of 7 years’ imprisonment upon indictment, I consider the fifth alternative of absolute liability should be put out of the picture in the present case. In other words, I consider the first (full\nmeas rea\nrequired) and fifth alternative (absolute liability) of liability as set out in\nHin Lin Yee\nare not applicable in the present case.\nIssue II:\n“\nWithout reasonable excuse” ---an element of the offence or a defence only?\n34.\nThere remain three alternatives: the second, the third and the fourth, which are regarded as intermediate basis of liability\n[22]\n. It is of note that the phrase “without reasonable excuse” appears in the offence-creating provision, namely section 114(8). Before deciding which alternative (2\nnd\n, 3\nrd\nor 4\nth\n) the offences under section 114(1) should fall in, I shall deal with another separate but related legal issue that has been raised in the trial: whether “without reasonable excuse” should be regarded as an element of the offence or just a defence under section 114(1)?\n35.\nIn fact, the issue has previously been discussed in the Court of First Instance by Barnes J in\nSecurities and Futures Commission v Yu Ka Tak\n[2007] HKCLRT 728. It was held by Barnes J, at paragraph 20, that “without reasonable excuse” is an element of the offence under section 114(1):\n“20. In the present case, the contents of s.114, particularly ss.114(3) and 114(9), show that the legislation has included “without reasonable excuse” as an element of the offence. Of course, this case also involved the prosecution’s allegation that the respondent was “without licence”, and under\ns.94A\nof the\nCriminal Procedure Ordinance\n, it was not necessary for the prosecution to prove that the respondent was “without licence”. If the respondent wished to prove that he had a licence, the burden of proof would be on him on a balance of probabilities. However, this does not mean that it was unnecessary for the prosecution to prove that the respondent had contravened s.114(3) without reasonable excuse. The present case is not significantly different from\nHKSAR v Lam Yuk Fai\n, and the principles stated therein are also applicable to this case.”\n36.\nBarnes J further observed that:\n“21. Although, generally speaking, whether a person has a“reasonable excuse” is probably something that only that person himself will know, this does not mean that there is anything improper in requiring the prosecution to prove the element of“without reasonable excuse” (as held by the Court of Final Appeal in\nHKSAR v Lam Yuk Fai\nand the Court of First Instance in\nHKSAR v Ng Po On\n).\n22. Apart from the fact that the provision reflects that “without reasonable excuse”is one of the elements, I have also taken the legislative spirit into consideration. Had the legislative intent been that any person who contravened s.114(3) committed an offence subject to the defence of “without reasonable excuse”, the provision could have expressly said so, as in\ns.118\n(5) of the\nCopyright Ordinance\n(\nCap.528\n) and\ns.9\n(4) of the\nTrade Descriptions Ordinance\n(\nCap.362\n).\n23. The contravention involved in this case is quite different from the offence of “possessing an offensive weapon in a public place” contrary to\ns.33\nof the\nPublic Order Ordinance\n(\nCap.245\n). It would be rather difficult for the prosecution to prove that a defendant was in possession of an offensive weapon in a public place“without reasonable excuse”. Given that the legislation is intended to protect the well being of a person, it is neither improper nor unfair for “without reasonable excuse” to be made not an element of the offence which the prosecution has to prove but a defence. Furthermore, the fact that prosecutions have to be sanctioned by the Secretary for Justice serves to provide considerable protection to a person. Lord Woolf also mentioned similar offences in\nHKSAR v Lam Yuk Fai\n(see para.18 above).\n24. The scenario in this case is different. The prosecution’s case was that the respondent carried on a regulated activity (leveraged foreign exchange trading) as business, and the case involved three persons going to the company for which the respondent worked to open accounts and carry out foreign exchange transactions. The respondent also told them that his company would charge 18% of the profit as commission etc.\n25. The prosecution alleged that the respondent did not have a licence. If the respondent claimed the contrary, he had to prove it on a balance of probabilities. If he exercised his right not to give evidence, the defence would not have any evidence to show that he had a reasonable excuse. Under such circumstances, the court could, on the evidence adduced by the prosecution, determine whether the only reasonable inference to be drawn was that the respondent was “without reasonable excuse” and had contravened s.114(3) accordingly.”\n37.\nNevertheless, subsequently in\nSecurities and Futures Commission and Liu Su Ke\n[2010] 2 HKLRD 673\n, Lunn J considered the same issue but came to a different conclusion. He ruled that “without reasonable excuse” was not an ingredient of the offence, and in pursuance to\ns. 94\nA of the\nCriminal Procedure Ordinance\n(\nCap 221\n), a defendant bore the persuasive burden of proving reasonable excuse. However, there were no compelling reasons to justify the abrogation of the presumption of innocence in this way and applying the proportionality test, s. 94A would be read down, so that an evidential burden was imposed on a defendant to point to evidence that raised the issue of reasonable excuse.\n[23]\n38.\nAlthough in\nLiu Su Ke,\nthe court was concerned with a different provision namely, section 328 (a) of the same Ordinance,the wordings and drafting of both provisions of 328 and 114 are actually very similar. As a matter of fact, the case of\nYu Ka Tak\nwas submitted to Lunn J for his consideration by Senior Counsel for the Respondent in favour of his contention that “without reasonable excuse” should be an element of the offence\n[24]\n, however\nYu Ka Tak\nwas not discussed in the judgment by Lunn J.\n39.\nLunn J made it plain, at paragraph 74 to 76, that\n“74. In my opinion, Mr Bell has identified succinctly the correct approach to the construction of the relevant provisions of this Ordinance:\n“Specific conduct or omission prohibited by a statutory provision may or may not be sufficient to constitute an offence. The essential criterion is whether the prohibited conduct or omission is inherently culpable.”\n75. It is apparent from the long title of the Ordinance that one of the purposes and objectives in regulating activities in the securities market is, and is stated, to be the \"protection of investors\". Clearly, the requirement of a disclosure of interests in shares, on acquisition or cessation of that interest, is the better to inform the market and is for the protection of investors. Importantly, the ingredients of the offence alleged against the appellant require proof by the prosecution of knowledge in the appellant of the occurrence of the relevant event. It is only with that knowledge, that culpability is imposed in consequence of a failure to make disclosure of a notifiable interest….\n76. In my judgment, in the context of the objects and purposes of the Ordinance, in particular the regime of disclosure to better inform and protect investors that is an inherently culpable act and those are the ingredients of the offence”\n40.\nI am of the view that the above principle stated in\nLiu Su Ke\nalso applies in the present scenario. Although\nLiu\ncase concerned a difference provision relating to criminal act of “non-disclosure”, advising on corporatefinance without licence in the present situation is also, in my view, inherently culpable. And we are here concerned of the same Ordinance with the same objective of protecting investors and regulating the securities and futures industry.\n41.\nIn the present case, Senior Counsel for the Defence, Mr Duncan, in court, as opposed in the defence written closing submission,\n[25]\ndid fairly agree that the terms “without reasonable excuse” should be considered as a defence instead of an ingredient of the offence while Miss PO Wing Kay for the Prosecution maintained her view that “without reasonable excuse” should be considered as an element of the offence relying on the judgment by Barnes J. Be that as it may, Miss PO frankly admitted in the court that she was not aware of the subsequent judgment of Lunn J on the same issue.\n42.\nHaving carefully considered both aforesaid authorities from the Court of First Instance, I ruled that the term “without reasonable excuse” should be regarded as a defence to be raised by defendants on evidential burden. I note that\nLiu Su Ke\ncase was delivered after\nYu\nKa Tak\ncase and that the Court of Final Appeal Judgment of\nHKSAR v\nNg Po On\n[2008] 4HKLRD 176\nhad not been delivered when\nYu\ncase was decided.\nWhat defence is available and the standard of proof?\n43.\nBy now, I have decided that a statutory defence, namely “without reasonable excuse” is available for offences under ss. 114 (1) and (8). The effect of any statutory defences applicable to the offence charged is obviously important where the presumption of\nmens rea\nrelating to the offence-creating provision is displaced. The key question is whether the statutory defence, if properly construed, is inconsistent with the availability of the second or third alternative. If so, only the statutory defence could be relied on.\n[26]\nThat was regarded as the fourth alternative liability as defined in\nHin Lin Yee\n.\n44.\nFurther, Ribeiro PJ subsequently observed in\nKulemesin Yuriy,\nat paragraphs 85- 89, that:\n“85.\nHin Lin Yee\nwas concerned with the mental element to be proved in relation to a regulatory offence, namely, breach of\nsection 54\n(1) of the\nPublic Health and Municipal Services Ordinance\n. The offence involved selling drugs which were intended for use by man but unfit for that purpose (because they had been contaminated by a certain contaminant). It was an offence punishable on summary conviction by a maximum fine of $50,000 and imprisonment for 6 months….\n86. The present case involves an offence which is not merely regulatory but involves serious criminal liability, being triable on indictment and punishable by a fine of up to $200,000 and by imprisonment for up to 4 years. In cases like the present, a conviction is also likely to have serious professional ramifications for the mariners involved. As we have seen, a constitutional challenge was made to the reverse onus apparently imposed by the statutory defences provided for.\n87. I concluded in\nHin Lin Yee\nthat the halfway house to be adopted in Hong Kong was the third (reverse onus) and not the second (evidential burden) alternative, on the basis that once the Court was prepared to go so far as to accept as a halfway house, the imposition of a reverse onus on the defendant, there was little to be said in favour of the second alternative. I also remarked that the latter alternative was less straightforward, since it requires the prosecution to proceed subject to the contingency that the accused discharges an evidential burden as to his having had reasonable grounds for an exculpatory belief. The prosecution would then have to prove either the absence of an honest belief or the absence of reasonable grounds for such belief.\n88. Such reasoning is apt when the Court is dealing with a merely regulatory offence and no constitutional issue is raised. Given the relatively minor gravity of the offence, the Court may be prepared to adopt the reverse onus alternative which falls close to the absolute liability end of the spectrum as best reflecting the presumed legislative intent upon displacement of the presumption of\nmens rea\n. Such alternative remains available and may be compelling when construing regulatory offences.\n89. However, where, as in the present case, the Court is not dealing with a merely regulatory offence, it may conclude that the presumption of\nmens rea\nhas been displaced but may not accept that adoption of the third alternative would reflect the legislative intent. Where a serious offence carrying severe penalties is involved, a reverse onus may also be regarded as making excessive inroads into both the presumption of\nmens rea\nand the constitutionally protected presumption of innocence. In such cases, the Court may find it more appropriate to infer that the second alternative best reflects the presumed intention of the legislature, doing no violence to the presumption of innocence.”\n45.\nGiven the serious criminal liability and severe penalty carried by the s.114 offences and the fact that the standard of proof of the statutory defence held in\nLiu Su Ke\nto require evidential burden only is consistent with that of the second alternative set out in\nHin Lin Yee\n, I, having considered all the above steps of statutory construction, find that the present offences under sections 114(1) and (8) are offences to which the second alternative of intermediate basis of liability applies. In other words, they are offences where:\n(a) The prosecution is required to prove beyond reasonable doubt that the D1 did carry on or hold itself out to the company clients in question as carrying on a business in advising on corporate finance;\n(b) If D1 is able to reply on evidence which, if unrebutted, raises reasonable doubt as to whether he acted or omitted to act in the honest belief on reasonable grounds that her conduct was not carrying on or holding itself out as carrying on a business in advising on corporate finance, D1 is entitled to be acquitted unless at the end of the day, the prosecution establishes beyond reasonable doubt that the D1 either did not have such belief or that his belief, although honestly held, was not based on reasonable grounds (\ncommon law defence\n);\n(c) Furthermore, given the existence a statutory defence, if D1 is able to reply on evidence which, if unrebutted, raises a reasonable doubt as to whether a reasonable excuse exists for its conduct, D1 is entitled to be acquitted unless at the end of the day, the prosecution establishes beyond reasonable doubt that no such excuse exists or that the excuse relied on is not reasonable\n[27]\n(\nstatutory defence\n).\nIssue III: Could D1 be liable for acts of Michael?\n46.\nConcerning the criminality of a corporate body, there is no dispute by both parties that the current law is that the company will have imputed to it the acts and state of mind of those of its director and managers who represent its “directing mind and will”. And it is also common ground that D2 in the present case was the directing mind of D1, being the sole shareholder and director of D1. The issue is whether the acts of Michael, having been engaged by D2 to deal with the respective clients in question, could be attributed to D1?\n47.\nThe key question was identified by Lord Reid in\nTesco Supermarkets Ltd v Nattrass\n[1972] AC 153\n, in two passages at pp. 170 and 171 respectively:\n“I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have\nknowledge or intention or be negligent\nand he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability.”\n“Normally the board of directors, the managing director and perhaps other superior officers of a company carry out the functions of management and speak and act as the company. Their subordinates do not. They carry out orders from above and it can make no difference that they are given some measure of discretion. But the board of directors may delegate some part of their functions of management giving to their delegate full discretion to act independently of instructions from them. I see no difficulty in holding that they have thereby put such a delegate in their place so that within the scope of the delegation he can act as the company. It may not always be easy to draw the line but there are cases in which the line must be drawn….”\n48.\nAlso, a contrast can be drawn between the offences of strict liability and those require proof of\nmens rea\n. Lord Templeman said at p.465 in\nre Supply of ready mixed concrete, HL,\n(No.2)\n[1995] AC 456\nthat:\n“the first principle is that a company is an entity separate from its members but, not being a physical person is only capable of acting by its agents. The second principal is that a company, in its capacity as a supplier of goods, like any other person in the capacity of taxpayer, landlord, or in any other capacity, falls to be judged by its actions and not by its language. An employee who acts for the company within the scope of his employment is the company. Directors may give instructions, top management may exhort, middle management may question and workers may listen attentively. But if a worker makes a defective product or a lower manager accepts or rejects an order, he is the company.\n49.\nIt is recently held by the Court of Appeal of England in\nR v St Regis Paper Co. Ltd\n[2011] EWCA Crim 2527\nthat the above principles however have no application to the regulation in question in that case which required proof of full intent. It again distinguished between offences of strict liability and offences which required proof of\nmens rea\n.\n50.\nOn the other hand, in\nHKSAR v Timful Garment Ltd\n, HCMA 770 of 2001, Deputy Judge Toh, as she then was, quoted what Litton JA said in the\nR v Wong Tak Choy\n[1994] 3 HKC 353\n:\n\"The Import and Export \"General\" Regulations do not by express terms make an employer liable for a servant's act of taking article out of Hong Kong contrary to the provision of the export licence unless he has caused the servant to do so. The effect of the verb to cause in the context of the Import and Export Regulations has been exhaustively analyzed by the Privy Council in\nAG v Tse Hung Lit\n[1986] AC 876\n. There the Privy Council expressively approve of the passage in the judgment of the High Court of Australia in\nO'Sullivan v Truth and Sportmans Limited\n1957-96 CLR 2001\nwhere the High Court was dealing with the offence of causing a newspaper to be offered for sale containing certain prohibited matters. The passage is in these terms:\n\"(The expression to cause) should be interpreted as confined to cases where the prohibited act is done on the actual authority, express or implied, of the party said to have caused it or in consequence of his exerting some capacity which he possesses in fact or law to control or influence the acts of the other. He must moreover contemplate or desire that the prohibited act will ensue.\"\n51.\nDeputy Judge Toh, as she then was, further observed that:\n“15. The appellant in\nWong Tak Choy\ncase was not a limited company. The appellant was one of the three partners of a garment factory. In\nWong Tak Choy\ncase there was evidence that a Mr Tsang who was in charge of the Shipping Department had carried out some import and export transactions and that the Appellant did not authorise it and knew nothing about it.\n16. The Magistrate in Wong's case decided that Wong was vicariously liable for what Mr Tsang had done. Litton JA (as he then was) held that the decision was wrong and that the Appellant could only be found guilty if there was evidence to show that he did cause the servant to commit the crime.\n17. I agree with the Respondent that the present case can be distinguished from\nWong Tak Choy\ncase in that the Appellant is a limited company and its mind and will must, of course, be exercised by the Company Directors and Managers, and the Company had through its board of directors, given full authority to Mr So to act on its behalf, as its production manager, in charge of not only production but import and export.\n18. The learned Magistrate correctly found that a company \"will have imputed to it the state of mind, both of its directors and managers, who represent its directing will and mind. So any mistakes or intentional flouting of the law by Mr So can be imputed to the Company.”\n52.\nAs I have ruled the offences under section 114(1) are strict liability to which the second alternative applies and that D1 is a corporate body instead of a natural person, I consider that, by applying the principles stated in the authorities above, what Michael (being an agent of D2)’s acts done could be attributable to not only D2 but also D1, subject to the finding of facts as to whether Michael was acting within the actual and specific authority of D2.\nDirections and reminders\n53.\nIn reaching the verdict, I have reminded myself that the prosecution is required to prove the guilt of the defendants beyond reasonable doubt. The defendants have nothing to prove except D1 to raise the defence with evidential burden in respect of s.114 offences. If I were to disbelieve D2’s evidence in court that does not mean she or D1 is guilty of the offence. Were I to disbelieve what she said in court I am also required to consider the evidence I do accept and decide if that satisfies me of the guilt of the defendant to the required standard.\n54.\nIn assessing the credibility of witnesses, I\nreminded\nmyself that each case has its own particular features\nand\nsweeping generalization should not be made. I bore in mind that I had to consider the\ninherent\nprobabilities of the evidence\nan\nd that the\ndemeanour\nof the witnesses could be relied on only as a last resort.\n55.\nD2 has a clear record and I have followed the guideline laid down in the case of\nBerrada\nand\nregarded her as having a lower propensity to crime\nand\na higher degree of credibility.\n56.\nI also reminded myself that where the prosecution relies on circumstantial evidence, the court can only draw an inference from facts proved beyond reasonable doubt and such an inference must be the only reasonable inference that can be drawn from such facts. It must also be an irresistible inference.\n57.\nThis case involved similar summonses laid against D1 and D2 under sections 114 and 390 respectively of the Ordinance, I have reminded myself that I have to deal with evidence for each summons separately.\nDiscussion on the Evidence\n58.\nThe credibility of all the prosecution witnesses are generally not in issue, except the defence challenged Cheuk had actually not read the content of the written agreements before his signature, which Cheuk firmly disagreed. In the following paragraphs, I will firstly deal with the evidence concerning summonses laid under s.114(1) against D1, i.e. C.L. Management Services Ltd, in relation to its dealing with the 3 respective client companies: 3 Wells, UK Fur and New Bonus. The “carrying-out” offence under section 114(1)(a) only concerned 3 Wells while the “holding-out” offences under section 114(1)(b) concerned all three companies in question.\nSummonses against D1\nThe “carrying-out” offence in respect of 3 Wells (ESS 30671 of 2013)\nBackground of D1, D2 and Michael\n59.\nD1, C.L. Management Services Ltd, was and is a registered company in Hong Kong and D2 was the sole director and shareholder of the company at all material times. D1 shared the same office at the address stated in the agreements in question with Cheong Lee Securities Limited\n(“Cheong Lee”)\nwhich was and is a securities company owned by D2. It is admitted by both parties that neither D1 nor D2 were licensed with SFC in any capacity or in relation to any regulated activities under the Ordinance.\n[28]\nNeither was it disputed that D2 knew that she was not licensed to do so at the material times.\n60.\nD2 is educated and received part of her education in Australia. She was divorced having 4 children. She has been actively participating in the charitable work held by Yan Oi Tong where she met Cheuk’s wife who was the chairlady of Yan Oi Tong. D2 was also elected as a vice-president of Yan Oi Tong before. She was a stockbroker and a licensee as a securities’ dealer between 1991 and 2003. D2 acquired Cheong Lee in 2007 which was and is a company engaged in the business of dealing in securities and futures. In March 2011, the holding company of Cheong Lee, CL Group (Holdings) Limited\n(“CL Group”\n) was listed on the GEM board of SEHK and D2 was and is the major shareholder. D2 knew the listing procedures from the past listing experience of her own company, CL Group and as a result of which, she knew a number of professional parties, including lawyers, accountants and sponsors for listing matters.\n61.\nAs testified by D2, Michael was a certified public accountant and also a chief financial officer of a listed company. D2 knew him since 2004 and CL Group had employed Michael as a company secretary in 2005 for 6 months. Between 2004 and 2007, D2 hired Michael to handle accounting matters for her personal companies. As far as D2 knew, Michael was conversant with the listing procedures. D2 regarded Michael as a person of experience and one could handle matters very well, as she had worked with him for a long time. In the present case, D2 alleged that he had engaged Michael to prepare the agreements in question and liaise with the respective three client companies for her. She also asked Michael to look into the internal audit of 3 Wells for allegedly “her own assessment” only as to whether 3 Wells were capable of being listed before she introduced the professional parties handling the listing procedures of 3 Wells. D2 maintained that Michael was not an employee of D1 at the material times.\nBefore 3 Wells Agreement was signed\n62.\nAccording to the evidence, what D2 and Michael have done to 3 Wells before the 3 Wells Agreement had been signed were as follows:\n(a) In early 2011, about half a year before signing the agreement, D2 firstly raised with Cheuk if he was interested to be instructed by her to upgrade 3 Wells, meaning getting it to be listed;\n(b) Cheuk subsequently visited several times D2 at the address of D1, as stated in the 3 Wells agreement for the purpose of knowing more about D1’s scale of business (though in his mind he only knew Cheong Lee) and considering whether to choose D1 for the listing matters. Every time he saw D2 working inside the office and it was Michael who received and discussed the matter with Cheuk;\n(c) Cheuk also, during the half year before the agreement was signed, has gathered information in respect of provider of consultancy services in listing matters. He said the price was generally from $300,000 to $500,000;\n(d) Cheuk was not familiar with the listing procedures and therefore he needs advice on the procedures, human resources and a professional party to line up all the right professionals for the listing application; Cheuk admitted that apart from the payment and lining up of professionals, the other terms on scope of services were not discussed with D2 in details. Those were only confirmed when the agreement was signed;\n(e) What Cheuk understood was that D2 and Michael would act like a “martial-art instructor” to help 3 Wells in the listing procedures. He expected that D2’s party would supervise or even work with the team of professionals to ensure the smoothness of the listing of 3 Wells;\n(f) Michael was the first “staff”, as said by Cheuk, D2 had introduced to Cheuk;\n(g) D2 instructed Michael to prepare the 3 Wells agreement for Cheuk to sign. Cheuk signed the agreement first at 3 Wells’ office, the agreement was subsequently sent to Michael for D2’s signature at her own office; A signed copy by both parties was later sent to 3 Wells;\n(h) Cheuk said he did read the content of the agreement before he signed. Because of their friendship and D2’s reputation on both her profession and charity, Cheuk said that he did not care much about whether D2 was signing the contract on behalf of Cheong Lee or any other company of her. Nor did he care much about the date of the agreement;\n(i) Cheuk knew well that he was appointing D1 as 3 Well’s “exclusive financial adviser” and he did believe D2 was capable of providing such service as a professional financial adviser for 3 Well’s listing and D2 being a consultant should provide such service as a whole.\nRelevant clauses in the 3 Wells Agreement\n63.\nThe written agreement\n[29]\nsigned between D1 and 3 Wells is not at all a complicated one. The terms stated in are in fact clear and easy to understand. I quote below the relevant ones:\n“PROFESSIONAL FINANCIAL CONSULTATION SERVICES AGREEMENT\nName of Party A : 3 Well Groups Holdings Limited (referred to as “Party A”)\nOffice of Party A : Units 1503 – 6, 15/F, Tower 1, Ever Gain Plaza, 88 Container Port Road, Kwai Chung, N.T., Hong Kong\nName of Party B : C. L. Management Services Limited (referred to as “Party B”)\nOffice of Party B : Room 1106, 11/F, Mass Mutual Tower, 38 Gloucester Road, Wan Chai, Hong Kong\nIn view of Party A’s intention to apply for a listing status on the Growth Enterprise Market (GEM) Board of the Hong Kong Stock Exchange, Party A and Party B hereby enter into this Engagement Agreement on matters about the engagement of Party B as an\nexclusive financial advisor\nin relation to Party A’s listing upon arm’s length negotiation :\n1.\nEngagement\nWith the effective from the confirmation and signature of this Agreement by Party A, Party B is duly appointed by Party A as the\nexclusive financial advisor\nof Party A and its subsidiaries (hereinafter referred to as the “Group”) in relation to the listing in Hong Kong.\n2.\nScope of Services\nParty B shall make full endeavour to use its resources and advantages for the listing of Party A, in order to enable Party A to be listed on the Hong Kong Stock Exchange. The responsibilities of Party B in relation to this listing include :\n(1) to provide\nprofessional financial advices\nin relation to arrange of the application for the listing on the Hong Kong Stock Exchange and to assist in resolving the relevant important issues;\n(2) to provide\ntechnical advice\non all related foreign and domestic policies, and to assist Party A in\ndrawing up a listing scheme or proposal on the basis of an initial evaluation;\n(3) to assist and guide Party A on the formulation of a restructuring plan, and a timely tracking and monitoring program for the intended listing, and on the implementation thereof;\n(4) to assist Party A in preparing the financial statements of the Group in accordance with the Hong Kong Accounting Standards;\n(5) to guide and assist the Group in the preparation of the listing financial information (including the preparation of the financial information to be contained in documents such as the prospectus of Party A) in accordance with the standard requirements, and to actively participate in the preparation work for Party A’s application for listing;\n(6)\nto assist Party A in the engagement of various listing-related intermediaries in relation to the intended listing, such as accountants, lawyers and listing managers (including securities brokers and underwrites etc., which shall be internationally-renowned institutions). The selection of the aforesaid institutions shall be confirmed by Party A, and the payment of costs to each of the intermediaries shall be made by Party A\n;\n(7) to assist Party A in performing the required due diligence in respect of the listing project and to\ncoordinate with other intermediaries\n;\n(8) to enthusiastically follow up audit work in connection with the listing matters with the Hong Kong auditors for and on behalf of Party A;\n(9) to assist Party A in the overall arrangement with respect to the questions raised by the Hong Kong Stock Exchange and the Securities and Futures Commission (SFC), including the review and submission of replies on financial information;\n(10) to consult with Party A to\nframe a practicable listing schedule\nin order to ensure the timely completion of the required work;\n(11) The advisory services shall span over the financial accounting years from September 2011 to December 2012.\n…….\n5.\nPayment of Costs\nParty A agrees and undertakes to pay a cost of HK$600,000 annually to Party B as compensation for acting as its\nfinancial adviser\n. Upon successful listing of Party A on the Stock Exchange of Hong Kong, Party A shall grant an additional number of share options, being equivalent to 1.5% of the issued shares, to Party B. The payment should be made within 7 days when this agreement effective. The payment terms is as follows\nTime of payment\nPayment\nWithin 7 days after signing this Engagement\nHK$150,000\nAgreement and payment in quarter\nThe date on which the listing application submit to the\nStock Exchange of Hong Kong\nShare options equivalent to 1.5% of the number of issued shares\nThe accommodation expenses incurred by Party A during its work should be financed by Party A.” (\nMy emphasis\n)\n64.\nI find the above 3 Wells Agreement a very clear and comprehensible agreement representing that D1 would during the period covered by the agreement act as an “exclusive financial advisor” providing a comprehensive scope of advisory services for 3 Wells concerning the compliance with and in respect of the listing rules. The reasons are:\n(a) The agreement was clearly named as\n“Professional Financial Consultation Services Agreement”\n;\n(b) It was stated therein twice\n[30]\nthat D1 was engaged by 3 Wells as an\n“exclusive financial advisor”\nin relation to 3 Wells’ listing in Hong Kong;\n(c) All the terms in Clause 2 “Scope of Services” clearly concerned advisory services on listing matters, including compliance with and in respect of the listing rules, of 3 Wells;\n(d) In Clause 5, the payment of costs was clearly for D1 acting as 3 Wells’\n“financial adviser”.\nIt is of note that the payment of costs to other professional listing-related intermediaries, e.g. lawyers, accountants and listing managers, were to be separately and additionally paid by 3 Wells\n[31]\n;\n(e) The\nadvisory services\nshall span over the financial accounting years from September 2011 to December 2012\n[32]\n.\nAfter 3 Wells Agreement was signed\n65.\nOn the evidence, after the agreement was signed, D2 and Michael did provide part of the services as stated in Clause 2 of the agreement:\n(a) 1-2 weeks after 31 Aug 2011 when 1st payment of HK$ 150,000\n[33]\nwas paid by 3 Wells to D1 in pursuance of the agreement, Cheuk and Lee met Michael and his team for the listing matters;\n(b) Michael, and his team, then requested to assess each department of 3 Wells by interviewing each department head and visiting the mainland factory;\n(c) On 1 September 2011, Geoffrey WONG\n[34]\n(“Geoffrey”)\nof Michael’s team, sent a outstanding list and time table for the listing purpose to Lee;\n[35]\nThe same was forwarded to Michael;\n(d) Between 16 September and 17 October 2011, Lee sent, as requested by Geoffrey, a list of 3 Wells’ internal documents\n[36]\nto Alex Tse\n(“Alex”)\nand Geoffrey, for the purpose of reviewing the internal control. Alex sent their comments on the internal control to 3 Wells on 22 September 2011. As seen from the email, meetings for the same purpose were held on 19 September, 4, 13 and 17 October 2011, all the emails were forwarded to Michael and Cheuk;\n(e) Cheuk understood that all the above documents were sent to Michael and his team for their consideration as to whether 3 Wells was capable of being listed;\n(f) Before D2 lining up the professional team, Cheuk recalled that either D2 or Michael had come back to him and told him that 3 Wells should be eligible to be listed;\n(g) On 3 October 2011, Michael and Cheuk’s team had the first meeting with the company lawyer\n[37]\n;\n(h) On 21 October 2011, Lee sent to Geoffrey another list of 3 Well’s information\n[38]\nwhich would be forwarded to Sponsor’s consideration;\n(i) On 25 October 2011, Michael attended the first meeting with the Sponsor and Cheuk’s team ;\n[39]\n(j) On 12 December 2011, Michael attended a meeting with the Sponsor and Cheuk’s team concerning the extension of the listing on GEM project for one year to September 2013\n[40]\n;\n(k) On 16 January 2012, Michael attended a meeting with Cheuk’s team and the Sponsor for the purpose of outlining the execution plan for GEM project\n[41]\n;\n(l) On 14 May 2012, 3 Wells paid a second payment of $150,000\n[42]\nto D1 in pursuance of the agreement;\n(m) Around September/ October 2012, Michael called Lee repeatedly and urgently requesting 3 Wells to terminate the 3 Wells Agreement due to problem of “internal audit”. It was promised that a refund of a total of $300,000 will be made to 3 Wells by D1. The request was agreed by Cheuk and a letter was finalised, drafted by Michael and amended on Cheuk’s instruction, and sent to D1’s address and to the attention of D2\n[43]\n;\n(n) D2 admitted that she had received the termination letter\n[44]\nbut did not pay heed to it and therefore did not act on it;\n(o) No refund was ever made by D1 to 3 Wells until now;\n(p) Cheuk all along understood that D2, Michael and their team, apart from lining up the professionals including the lawyers, accountants and sponsors, would supervise and work with them to make the listing process successful. However, several months after the agreement, it seemed that D2 and her team did not do much in the listing process;\n(q) Upon lining up the professionals, D2 said she had attended the first introductory meeting after which he did not take part in the process. She relied on Michael to do all the liaison work for 3 Wells’ listing matters;\n(r) D2 admitted that out of the total sum of $300,000 D1 had received from 3 Wells, $150,000 was paid to Michael.\nWas Michael acting on behalf of D2 within her actual and specific authority?\n66.\nIt is contended by the Defence the acts by Michael and his team to 3 Wells were not done within D2’s actual and specific authority.\n67.\nOn the evidence, D2 was the sole shareholder and director of D1. The scale of D1, as testified by D2, was not a huge one. She said in evidence that it was her another company Cheong Lee assigning a room at the address in question for her to work for D1. Cheuk said that Michael was the first staff D2 had introduced to 3 Wells responsible for the listing project. Michael was working in the same office as that of D2 in respect of the dealing with 3 Wells as testified by Cheuk. It is reasonable to infer that D2 and Michael did work together closely during the material times. According to Cheuk and Lee, if there was anything they wanted to inform D2, they would do it through Michael, e.g. D2 signing the 3 Wells agreement or Lee sending the termination letter to D2. 3 Wells’ party always understood Michael being the agent/staff of D2. At no stage did D2 inform 3 Wells that such her relationship with Michael had been changed.\n68.\nFurther, I found Michael was actually working as a delegate/agent of D2, being responsible for the services provided to 3 Wells about the listing matters. On the evidence, it is clear that after D2 getting the business from 3 Wells by using her connection and reputation acquired both from her charity and professional works, she then left the actual operation to her able assistant, Michael. As admitted by D2, Michael was conversant with listing procedures as he was a certified public accountant and a chief financial officer of a listed company before. Michael has also been employed by D2 as company secretary for CL Group in the past. It was mainly Michael and his team to follow up the listing matters of 3 Wells. As a matter of fact, what Michael and his team did was generally consistent with the agreement terms, although it turned out to fall short of performance as expected by Cheuk. No doubts Cheuk and his team understood that Michael was all along acting on behalf of D2.\n69.\nEven during the termination of the contract, the letter was sent to D2’ attention. D2 admitted that she had received the termination letter which showed that she remained in control and was the person in charge of the whole process on behalf of D1. Before the 3 Wells Agreement was terminated, a total of HKD$300,000 was paid to D1 by 3 Wells on schedule which has never been refunded as promised by Michael over the phone. Out of HKD$300,000, Michael was rewarded with half of the remuneration, i.e. HKD $ 150,000, as admitted by D2. All of these are consistent with Michael’s role as an agent for D2. It makes no sense that Michael, without any reasons, would be or intended to be in any way acting outside D2’s authority. Having reviewed all the evidence, I found that Michael was all along acting on behalf of D2. D2 had delegated her duties for 3 Wells to Michael and that Michael had acted within D2’s actual and specific authority and within the scope of her delegation.\n70.\nAs I have ruled above that offences under section 114 created strict liability of 2\nnd\nalternative and the fact that D1 was a corporate body in the summons concerned, together with my finding that D2 had delegated her duty in respect of 3 Wells to Michael who had acted within D2’s delegation and authority, I consider that what Michael had done on 3 Wells was attributable to D1. In other words, D1 was liable for not only D2’s, but also Michael’s acts.\nWhat amounted to “advising on corporate finance”?\n71.\nIt is common ground that the meaning of “\nadvising on corporate finance”\nis defined in Part 2 of Schedule 5 of the Ordinance and the relevant part concerned in the present case in my view is confined only to the first part of subsection (a):\n“advising on corporate finance means giving advice-\n(a) concerning compliance with or in respect of rules made under section 23 or 36 of this Ordinance governing the\nlisting of securities\n….;\n72.\nOn reading the above extract of the definition, it seems that the provision aims at covering a wide range of areas of any advice given concerning compliance with or in respect of rules governing the listing of securities.\n73.\nAs analysed in paragraphs 61-64 above, I am of the view that what D2 and Michael did to 3 Wells before, during and after the 3 Wells Agreement was signed obviously amounted to advising on matters concerning compliance with or in respect of the rules governing the listing of securities. Although what D1 did fell short of what it had promised in the written agreement and what was expected from Cheuk. On the evidence, D2, Michael and his team were but trying to give assistance and advisory services on the listing matters for 3 Wells on behalf of D1. The services provided were generally in line with what D2 had promised to 3 Wells both in the oral and written agreements.\n74.\nDefence said that D2 was just using her experience and connections to line up a professional team for 3 Wells’ listing and that was it, which fell short of amounting to advising on corporate finance. I disagree with it. That in fact was just part of D2’s work. As said above, D2, after signing the 3 Wells Agreement, also sent her team headed by Michael, as testified by Cheuk and Lee, to have meetings with Cheuk, Lee and their department heads, both in Hong Kong and Mainland. They also helped to review a list of internal documents to access whether 3 Wells had the capability to be listed. Such advices were indeed given to them before D2 lined up the professionals for the listing of 3 Wells. After that, D2 (even for the first introductory meeting only as said by her) and Michael had also met up with Cheuk’s party and other professional intermediaries concerning 3 Wells’ listing.\n75.\nI do not accept Defence contention that D2 was not aware of Michael and his team’s doing all along. D2 was a professional in the securities industry and she was involved from the beginning until the end, although she was not the person who actually did most of the liaison or advisory work. This part will be considered in more details later in my verdict.\nDid D1 “carry on” a business in advising on corporate finance?\n76.\nAs to the meaning of “carrying on” a business, it was held in\nLee Yee Shing v Commissioner of Inland Revenue\n(2008) 11 HKCFAR 6\nat paragraph 38, that “whether something amounts to the carrying on a trade or business was a question of fact and degree to be answered by the fact finding body upon the consideration of circumstances.”\n77.\nFurther, it was held in\nHKSAR v Fung Yee Man\n[2001-2003] HKCLRT 464 by Deputy Judge Pang, as he then was, that:\n“A business must be “carried on” in order to become registrable, and the term “carry on” cannoted a degree of continuity. As a matter of common sense, a one-off sale and purchase transaction did not constitute “carrying on”.\n78.\nI have found above that what D2 and Michael had done amounted to giving advice on corporate finance, I still have to consider whether on the evidence D1 was “carrying on” a business in advising on corporate finance. Applying the principle set out in the abovecases\n,\nI do have reservation in concluding beyond all reasonable doubt that what D1 had factually done to 3 Wells could satisfactorily be regarded as “carrying on” a business in advising on corporate finance, although the evidence showed that it did at some stage, through Michael and D2, give 3 Wells “some bits and pieces” advisory service on its listing during the material times\n[45]\n. Cheuk testified that several months after the agreement had been signed, he realised that D1 actually did not do much in the listing process, as opposed to what he had expected. On the evidence, the advisory service provided by D1 to 3 Wells was abruptly terminated upon D1’s request around September or October 2012 before the agreement was completed. At that moment, 3 Wells was not able to be listed as originally scheduled. Analysed as the above, I acquit D1 of ESS 30671/2013 on the “carrying-out” offence\n[46]\n. As there is no commission of the relevant offence in section 114(1)(a), D2 must also be acquitted of the “attributable offence” of ESS 30672/2013 laid under section 390 of the Ordinance.\nThe “holding-out” offences (ESS 39231, 30673 & 30675 of 2013)\n79.\nAs stated above, the “holding-out” offence against D1\n[47]\nconcerned all three client companies.\nMeaning of “Holding- out”\n80.\nFrom the Hong Kong Bilingual Legal Dictionary, it is said that the term “hold out” means:\n“To represent or pretend. It is an offence for an unqualified, unlicensed or unregistered person to\nhold out\n,\nadvertise or represent that he or she is qualified or licensed to provide professional or regulated services”\nEvidence relating to 3 Wells\n81.\nOn the evidence set out above in paragraph 62, Cheuk said that before signing the 3 Wells agreement, D2 had asked him twice whether he would like to promote 3 Wells to a higher level, which he understood was to have 3 Wells being listed. D2 asked if Cheuk was interested to be instructed by her for such purpose which Cheuk understood D2 would act like a martial art instructor in the whole listing process of 3 Wells. Cheuk had actually considered this issue for about half a year, during which he had gathered information about other companies providing similar consultancy services concerning listing procedures and visited D2’s office to learn about the scale of her business.\n82.\nBefore the written agreement was signed, the payment terms and paying schedule were largely agreed. As to the scope of services to be provided by D1, D2 and Cheuk did not discuss it in details before signing the agreement. What Cheuk understood was that, apart from introducing the right professional parties to handle the listing process for 3 Wells, D2 and his team would also supervise or work together with other professional parties to ensure the listing process would be smooth.\n83.\nThe Defence disputed that Cheuk had actually not read every term of the agreement before he signed it which was firmly disagreed by him. Cheuk explained that what he told SFC that he did not care about the contract meant that he did not care about the company’s name, the scope of services in details and the date of the agreement. Neither did he care to check whether each term of the contract was duly carried out by D2 in the course of the process after signing the agreement. It was because he trusted D2 very much. But he did read and understand every term of the contract before he signed. After considering the content of his evidence as a whole and observing the way in which Cheuk was giving evidence, I accept all what Cheuk said in court and I found him a very honest and reliable witness.\n84.\nIn any event, what the court mostly concerned is not what Cheuk had understood, but what D2 had held herself out before, during and after she had signed the agreement. The terms stated therein the 3 Wells Agreement are clear and simple. D2 is educated and has been working in the profession of securities and futures for a long time. The agreement was prepared upon her instruction. The evidence also showed that there was abundant time for her to read and understand the contract before signing the agreement.\n85.\nApart from the conduct of D2 before and when she signed the agreement with 3 Wells, what she and Michael performed to 3 Wells after signing the agreement as stated above in paragraph 65 also supported the conclusion that, at the time when D2, on behalf of D1, signed the agreement, D1 did held itself out to 3 Wells as carrying on a business in advising on corporate finance. It was also in line with 3 Wells’ understanding all along until the termination of the contract.\n86.\nThe fact that D1, urgently and strangely, requested 3 Wells to terminate the agreement also strengthened the inference that D1 did at the outset held out to 3 Wells as carrying on a business in advising on corporate finance which was later discovered to be unlawful and needed to be terminated.\n87.\nIn light of the foregoing, I have no hesitation to conclude that D1 did, at the time when the 3 Wells Agreement was signed, hold itself out to 3 Wells as carrying on a business in advising on corporate finance.\nWhat if Michael’s acts do not count?\n88.\nEven if I were wrong in concluding D1 should be liable for Michael’s acts, I still found that D2 being the “directing mind and will” of D1, had held herself out to 3 Wells as carrying on such a business.\n89.\nTaking into account the above facts concerning the acts of D2 alone performed to 3 Wells before, during and after the agreement was signed together with other circumstantial evidence, in particular her background and the clear content of the 3 Wells Agreement as set out above at paragraphs 59-65 and analysed at paragraphs 81-86, I am sure that D1 did, at the time when the 3 Wells Agreement was signed, hold itself out to 3 Wells as carrying on a business in advising on corporate finance.\nEvidence relating to UK Fur\n90.\nThe Prosecution only called PW3, P WONG, the Chairman and executive director of UK Fur, which was in the business of fur trading. P WONG knew D2 for over 20 years. P Wong’s evidence was relatively brief. What D2 had done to UK fur included:\n(a) D1 entered into a “Professional Financial Services Consultation Agreement”\n[48]\nwith UK Fur signed by P Wong and D2, on or around 20 October 2010;\n(b) The draft of the above agreement was prepared by Michael which was sent\n[49]\nto D2 for consideration before signature. After three days, D2 replied Michael, by way of email, that the draft had no problem. D2 also emphasised to Michael to make sure the payment would be well received;\n[50]\n(c) The UK Fur Agreement contained very similar terms as the one signed with 3 Wells which included:\n- The agreement was named as\n“Professional Financial Services Consultation Agreement\n”;\n- Engaging D1 as UK Fur’s\n“exclusive financial adviser”\nin relation to its listing in Hong Kong (Clause 1);\n- Purporting to provide very similar scope of\nadvisory services\nas stated in Clause 2;\n- Providing for payment of $600,000 and the granting of share options equivalent to 1.5% of the number of issued shares upon successful listing as stated in Clause 5 by UK Fur to D1 which were for the latter acting as the “\nfinancial adviser”\n;\n- The payment of costs to other professional listing-related intermediaries, e.g. lawyers, accountants and listing managers, were to be separately and additionally paid by UK Fur\n[51]\n;\n- The\nadvisory services\nshall span over the financial accounting years from 2009 to 2011.\n[52]\n(d) UK Fur had paid a total sum of $600,000\n[53]\nto D1 in 4 instalments as stated in Clause 5 of the agreement;\n(e) During the oral discussion with D2 before signing the agreement, P Wong said that D2 only had offered services of lining up of a team of professionals for the listing matters, which he agreed upon cross examination that was what he expected too;\n(f) P Wong admitted that he knew nothing about the listing procedures;\n(g) When signing the agreement, although he had read it, he did not understand the content of it;\n(h) On 26 October 2011\n[54]\n, UK Fur and D1 entered into a Supplemental Agreement\n[55]\n. This agreement varied the payment terms under clause 5 of P2 in that the consideration for the services was changed from $600,000 to $700,000. However, the additional $100,000 was not paid to D1;\n(i) D2 introduced various professional parties to UK Fur including lawyers, accountants and sponsors for the listing process;\n(a) By a Confirmation Letter dated 18 November 2011\n[56]\n, signed by D2 and P WONG, the parties confirmed that D2 did not and would not perform the services stated in the original agreement. Instead, there was a totally different list of other services stated therein the letter that D1 had and would provide during the contractual period;\n(b) Further, the role of D1 being a “financial advisor” was changed to “financial consultant” pursuant to the Confirmation Letter.\n(c) P Wong said that the confirmation letter was prepared on the advice of the Sponsor of UK Fur’s listing application as it was said that the services stated in clause 2 of the original agreement should have been provided by the sponsor but not D1;\n(d) UK Fur’s holding company was listed on the GEM board of SEHK on 24 August 2012;\n(e) On 1 August 2012, UKF Holdings granted an option of $14,400,000 shares equivalent to 1.5% of the number of issued shares in favour of D1 at the exercise price of $0.26. On 2 August 2012, D1 accepted the option in a letter signed by D2 on behalf of D1\n[57]\n91.\nGiven the unequivocal terms stated in the contract signed between D2 and P Wong, I consider that there is sufficient evidence to show that D2 did hold itself out to UK Fur as carrying on such business in advising on corporate finance. I note that P Wong said that he did not understand the terms of the contract and expected D2 did nothing more than the introductory service. However, what the court concerned the most was what D1 had held itself out to be. I must say that I did have reservation on some part of the evidence of given by P Wong, who was a good friend of D2 for more than 20 years, concerning what he understood about the scope of services provided by D2 before the agreement was signed. The court is entitled to accept part of the evidence given by a witness. In any event, the clear representation stated on the written agreement\n[58]\nshould be considered as the most forceful and reliable evidence of what parties were agreeing and representing.\n92.\nDefence said that P Wong’s understanding of what D2 said orally was in contrast with what was stated in UK Fur Agreement. Normally, the written contract should be considered as overriding if there is any discrepancy between the oral and written agreement. For example, in D2’s evidence, she orally agreed with the respective clients that she would charge around HKD$50,000 each month for her services. But in all the agreements concerned, the payment terms stated therein were quite different from what she told the clients before. This also showed that D2 intended to finalise all the terms of her service with her clients in the written but not the oral agreement.\n93.\nStrangely enough, the term about “Scope of Services” (Clause 2) has been substantially amended and the role of D1 being a “financial advisor” was changed to “financial consultant” by way of a Confirmation Letter\n[59]\ndated 18 November 2011 after almost 13 months when the UK Fur Agreement was firstly signed. A compelling inference could be drawn that either the advisory services stated in Clause 2 of the original agreement had not actually been carried out or should not have been carried by D1, which was somehow discovered and needed to be rectified by UK Fur during the listing process. In either situation, it further supported the irresistible inference that D1 did, at the time when signing the contract, hold itself out to UK Fur as carrying on a business in advising on corporate finance. On the other hand, the fact that, D1 did, at some stage after signing the agreement and performing part of the unregulated activity, try to rectify its legal status with UK Fur only showed that it might not be aware what it/D2 was doing was not permitted by the law. However, ignorance of law is no defence.\n94.\nClearly, section 114 does not only target those who actually carried on a business in the regulated activity but also those who held itself out to others as carrying on such business. In light of the unequivocal terms set out in the UK Fur Agreement and the other circumstantial evidence as set out above, I am sure that D1, at the time when the UK Fur Agreement was signed, actually held itself out as carrying on the business in advising on corporate finance.\nEvidence in relation to New Bonus\n95.\nThe Prosecution only called PW4, KF WONG, another friend of D2 and also the director of New Bonus, which was in the business of selling luxury yachts. His evidence was quite similar to what was given by P Wong of UK Fur. On the evidence, what D2 had done to New Bonus included:\n(a) Around the end of December 2010 and early January 2011, KF WONG on behalf of New Bonus entered into a Professional Financial Services Consultation Agreement\n[60]\nwith D2 signing on behalf of D1;\n(b) The New Bonus Agreement was also in very similar terms as 3 Wells Agreement\n[61]\nand UK Fur Agreement\n[62]\nwhich included:\n- The agreement was named as\n“Professional Financial Services Consultation Agreement\n”;\n- Engaging D1 as New Bonus’s\n“exclusive financial adviser”\nin relation to its listing in Hong Kong (Clause 1);\n- Purporting to provide very similar scope of\nadvisory services\nas stated in Clause 2;\n- Providing for payment of $680,000 and the granting of share options equivalent to 3% of the number of issued shares upon successful listing as stated in Clause 5 by New Bonus to D1 were for the latter acting as the “\nfinancial adviser”\n;\n- The cost for other professional parties were to be separately and additionally paid by New Bonus;\n- The\nadvisory services\nshall span over the financial accounting years from November 2011 to December 2012.\n[63]\n(c) D1 was paid $170,000 by New Bonus within 10 days after the written agreement was signed;\n(d) KF WONG said, upon cross-examination, that before signing the written agreement, he and D2 did discuss about D2 introducing professional parties to New Bonus for the listing application and that he himself did not expect D2 to provide other services regarding the listing process.\n96.\nI have to consider whether D2, on behalf of D1, by signing of an unequivocal written agreement as well as providing the introductory services to New Bonus could amount to “holding-out” in carrying on a business in advising on corporate finance. Clearly, D2, on behalf of D1, did represent in the New Bonus Agreement that services of advising on corporate finance would be provided to New Bonus. In fact, the first instalment of $170,000 was paid to D1 by New Bonus shortly after the agreement was signed. The listing application of New Bonus was somehow not proceeded with, but part of the services, namely the introductory service as specified in Clause 2 had been provided by D2 as admitted by her. In light of all the evidence concerning what D2, on behalf of D1, had done to New Bonus before, during and after the signing of the New Bonus Agreement, I have no hesitation to conclude that D1, at the time when the contract was signed, did hold itself out to New Bonus as carrying on the business in advising on corporate finance.\n97.\nDefence said that KF Wong himself did not expect D2 would provide services other than the introductory services. As what I have said earlier, the court is mostly concerned of what D2 was doing on behalf of D1. Although KF Wong testified that during prior discussion what he understood from D2 was that she would be introducing some professional parties for the New Bonus’s listing, but that would not negate the clear fact that D2, on behalf of D1, had later on by way of an unequivocal written agreement\n[64]\nheld herself out as carrying on the business in advising on corporate finance. I therefore consider that D1 had at the material time held itself out to New Bonus as carrying on the business in advising on corporate finance.\nCan the defence be made out by D1 factually?\n98.\nI pray in aid of the holding in\nHKAR v Adams Secuforce (International) Limited\n[2008] 1 HKLRD 207\n[65]\nrelating to the steps in considering the defence of “reasonable excuse”:\n“the defence of “reasonable excuse” had first to be examined and identified; secondly, that it was necessary to determine whether the excuse was genuine; and thirdly, an assessment was necessary to determine if the excuse was reasonable. The Court said that the defendant's belief or his state of mind were relevant factors and may afford some assistance to the trier of fact but the final answer must always come from an objective assessment of the particular facts of each case. The Court said that that assessment required a consideration of not merely the defendant's belief and state of mind but it required the application of community standards.”\n99.\nIn a recent case\nHKSAR v Li Fung Ching Catherine\n[2012] 3 HKLRD 377\n, the Court of First Instance also held that\n[66]\n:\n“In relation to non-payment of wages under\nsection 23\nof the\nEmployment Ordinance\n, the question of “reasonable excuse” should be considered from the perspective of a reasonable man, namely whether there was a cause which a reasonable man would regard as an excuse, consistent with a reasonable standard of conduct. Regard must be had to the objective of the Ordinance, which was to provide for the protection of the wages of employees.”\n100.\nIn reaching my conclusion as to whether the defence could be made out factually, I bear in mind the principles above and the objective of the Ordinance in question which is to protect the investors and regulate the industry of securities and futures. The defence contended that D2 firstly, was not aware of the content of all the agreements she had signed with the respective clients and secondly, did not know what Michael had done to 3 Wells. I have to consider whether the defence has successfully proved the above two assertions, if unrebutted, could amount to a “reasonable excuse” (i.e. the statutory defence) or an honest belief on reasonable grounds that what she did was not holding herself out as carrying on a business in advising on corporate finance (i.e. the common law defence).\n101.\nD2 elected to give evidence and I accept that the evidential burden for both statutory and common law defence has been satisfied by the defence. What I have to do next is to consider whether the prosecution could successfully rebut, beyond all reasonable doubt, that what was said by D2 in her evidence could never be a “reasonable excuse” (\nstatutory defence\n) nor in any way an “honest belief on reasonable grounds” (\ncommon law defence\n).\nDid D2 know the content of the agreements?\n102.\nAs narrated earlier, D2 is an educated lady and understands English. She has been dealing in the securities industry for years and her own company has gone through the process of listing in 2009-2011. She testified that the three agreements in question\n[67]\nwere prepared by Michael on her request but she did not have chance of reading through them in details before signing. She said she had told Michael to look for similar agreement which provided only introductory services for listing. On the evidence, the draft of UK Fur Agreement was sent to D2 by Michael for her perusal.\n[68]\nThe draft was subsequently approved by her as showed from the e-mail he replied to Michael.\n103.\nD2 however told the court that the first time when she had a chance to read the terms in details of the three respective agreements was when she was asked to do so during her evidence-in-chief in court. She said what she concerned the most was to get money from the clients on time and she was not concerned with other terms of the agreement because the three clients were all her friends. She even told the court that the agreements were not important. She also excused that she was just too busy, both in family and work, to read the content of the agreements.\n104.\nI must say that D2’s above assertions in court were in my view no more than a pack of lies. Being such a professional in the industry, how can one believe that she would not read carefully the terms before signing the contracts? D2 said what she concerned the most was the receipt of payment which could most effectively be showed and enforced in the agreements. Payment could only be collected when the duties of D1 was duly performed as specified in the agreement. Therefore, both the terms of payment and scope of services were equally important. D2’s saying that she only had a glance on the payment clause but not other terms was totally unreasonable. The most utterly unbelievable part was that she only read it for the very first time when she was giving evidence in court. How could one believe such a dishonest and ridiculous piece of evidence?\n102. At least, D2 would read the agreements when she was informed, on two occasions, that the same had problems. Regarding UK Fur’s case, a Supplemental Agreement\n[69]\ndated 26 October 2011 and Letter of Confirmation\n[70]\ndated 18 November 2011 were signed by both parties, specifying the substantial changes of scope of services and the role of D1. Similarly, in the case of 3 Wells, a letter back-dated to 31 May 2012\n[71]\nto terminate the original 3 Wells Agreement was received by her in late 2012. D2 although admitted that she had received all the abovesaid documents denied that she had paid much attention to the same. That again in my view defies all common sense. The above documents were unusual in nature and hardly can one be convinced that D2, being the directing mind of the party concerned of the agreements, would not have paid any attention to them. It is wholly unconvincing that D2 have not read again what she had signed when the terms of the agreements had been substantially changed. It is also absurd that D2 would not have read the contracts again when she was being investigated by SFC which was well before giving evidence in court.\n105.\nIn any event, I do not believe that D2 have not read through the respective agreements before she signed each of them. There is no evidence suggesting she was in a rush at all. As a matter of fact, the first draft of UK Fur Agreement was sent to her email account by Michael for her perusal and was approved three days later.\n[72]\nIn 3 Wells’ case, Cheuk said that after he signed the 3 Wells Agreement, the same was sent to D2’s office for her signature. In both cases, D2 had plenty of time to read and understand the agreements before signing.\n106.\nAlthough Michael did not give evidence, D2’s evidence did not suggest any ground that Michael, being her reliable agent all along, would depart from her instructions on preparing the appropriate agreements without any reasons. On the other hand, D2 said that she had known Michael for a long time and that she regarded Michael as a very competent assistant of her who could handle things very well. These must be the reasons why D2 would employ him as the company secretary before and in the present case the person responsible for most of the dealings with the clients concerned. D2 said Michael was very familiar with the listing procedures and she herself also had the experience and knowledge of the same as CL Group had gone through the listing process before. I have no doubt that the agreements must have been prepared according to D2’s instructions.\n107.\nIf D2’s evidence were true, all the agreements prepared by Michael turned out to be substantially departing from her instructions. If the services D2 intended to provide were just so simple as alleged by her, why Michael would not have just drafted an agreement with very simple terms but acted against D2’s instructions and prepared a much more detailed one instead? On the evidence, all the money was firstly paid to D1 and the substantive work was mostly done by Michael. What was the point for Michael to perform so much more arduous duties for the clients if the same amount of money would be received by D2 and him by just doing the introductory services? This is again illogical.\n108.\nD2 also testified that as she trusted Michael very much and she was very busy both at work and family, she simply did not care to read through them but just signed them right away. Such excuses are unacceptable to me. It is entirely improbable that D2 would not have read such clear and comprehensible terms even once. Each agreement contained only several pages and the terms were all very similar, clear and easy to understand. D2’s such excuse/belief was neither reasonable nor honest at all in my view. I am sure that D2 must have full knowledge of the content of all the agreements in question.\n109.\nAlso, after signing the contract, D2 was still involved in the process, at least by introducing the professional parties for and attending the first meeting with the respective clients as she testified. The receipt of payment on schedule did further infer that what she signed was what she meant. Further, the considerable monetary remuneration, let alone saying the granting of share options, received by D1 from the clients was incompatible to D2’s allegation that she intended to provide and had provided introductory services only. From Cheuk’s evidence, he did conduct some research on the fees charged for similar advisory services for listing provided by other companies which ranged from $300,000 to $500,000. Defence submitted that the prosecution should have called independent evidence to prove the normal charges for such advisory service for listing before one could comment on the reasonableness of the costs charged by D1 for the introductory service, I consider common sense, Cheuk’s evidence and other circumstantial evidence suffice to rebut D2’s assertion that the cost D1 had received from the clients only intended to cover introductory and liaison services.\n110.\nWith the above reasons, I am of the view that the prosecution has successfully rebutted beyond all reasonable doubt that D2’s assertion that she was not aware of the content of the agreement concerned when she signed each of them. The allegation of such “belief” or “excuse” was neither honest/genuine nor reasonable.\nDid D2 know what Michael was doing on her behalf\n111.\nRegarding D2’s contention that she was not aware of Michael’s acts on 3 Wells, it is also improbable and illogical to me. Michael was her able assistant, receiving a handsome amount of monetary remuneration i.e. almost half of what D1 had received\n[73]\n. Michael and D2 were working in the same office at least for the project of 3 Wells, as Cheuk testified that he did see Michael whenever he visited D2. And it was always Michael receiving and discussing the matters with him. Cheuk said clearly that the first staff D2 had introduced to him was Michael. All along, Cheuk understood Michael was acting on D2’s behalf. No one has ever informed 3 Wells that the relationship between D2 and Michael had changed in any way.\n112.\nIt was D2’s admission that she had entrusted Michael to look into the internal information of 3 Wells to assess its capacity to be listed for her own benefit but not for 3 Wells. It was said by defence that as Cheuk had testified that 3 Wells already “knew” that they were capable of being listed and therefore there was simply no need for 3 Wells to be advised by D1 on the listing matter. This submission, with respect, was convoluted and misleading in my view. I find that D2 was simply trying to explain away the fact that Michael had on the undisputed evidence looked into 3 Wells’ internal audit and gave advice as to its ability for listing. Although Cheuk was confident about his own company, it did not mean that he did not need D1’s advice on its capacity and procedures to be listed. In fact, that was the whole purpose for Cheuk to engage D1 as he was not familiar with the listing procedures and manpower and he did believe D2, like a martial art instructor as said more than once by Cheuk, had the ability to advise 3 Wells on the listing process as a whole. The assertion of D2 that the assessment of listing capacity of 3 Wells by Michael was only for her but not 3 Wells was without force.\n113.\nFurther, when Michael telephoned Lee to discuss the urgent request for termination of 3 Wells Agreement, the finalised letter was sent to and received by D2. All these could provide the court with sufficient evidence to draw an irresistible inference that D2 was well aware of Michael’s acts to 3 Wells all along and that Michael was acting with D2’s actual and specific authority at all material times. I am satisfied that the prosecution has disproved beyond reasonable doubt that the allegation of honest and reasonable belief/excuse that D2 was not aware of Michael’s doing and therefore thought that she was not holding out as carrying on the business in advising on corporate finance does not exist. Neither is such excuse/belief, if ever existed, relied on reasonable.\n114.\nAs such I consider the prosecution has proved beyond reasonable doubts all the elements of all “holding-out” offences against D1 and rebutted beyond reasonable doubt all the possible defences. I therefore convict D1 of summonses ESS 30673, 30675 and 39231 of 2013.\nFallback position--- Did D1 have\nmens rea\nin the “holding-out” offences?\n115.\nIf I were wrong in ruling the “holding-out” offence against D1 under section 114 as creating strict liability falling within the category of second alternative, meaning the offences in fact require proof of full\nmens rea\non the part of D1, I still find D1 guilty of the offences.\n116.\nOn the evidence, as I have analysed as above which I do not intend to repeat, it showed clearly that D2, being the directing mind of D1, knew full well the content of all the Professional Financial Consultancy Agreement signed with the three respective clients. She was clearly in control of D1 and she was the one who received the payments and then shared almost half of it with Michael in each and every case. Cheuk and Lee of 3 Wells said that they understood Michael was all along working on behalf of D1/D2. I am sure that what Michael did to the clients was all within D2’s authority and delegation. Further, she was also responsible for using her own connection and knowledge to introduce the professional teams for her clients’ listing applications. D2 must have knowledge that D1 did represent itself as carrying on a business in advising on corporate finance. When signing the respective agreements, D1, with D2’s directing mind, did intend to hold itself out to all respective clients as carrying on a business in advising on corporate finance which were clearly shown in the agreements and supported by all the circumstantial evidence.\nSummonses against D2\n117.\nAs I have found D1 guilty of summonses ESS 30673, 30675 and 39231of 2013 laid under section 114(1) and (8) of the Ordinance, I now move on to consider whether D2 should be liable for the respective “attributable” offences on the same facts laid against her under section 390.\n118.\nIt is stipulated in section 390 of the Ordinance that:\n“1) Where the commission of an offence under this Ordinance by a corporation is proved to have been aided, abetted, counselled, procured or induced by, or committed with the consent or connivance of, or attributable to any recklessness on the part of, any officer of the corporation, or any person who was purporting to act in any such capacity, that person, as well as the corporation, is guilty of the offence and is liable to be proceeded against and punished accordingly.”\n119.\nIn Schedule I of the Ordinance, “officer” in relation to a corporation is defined as:\n“officer (高級人員)-\n(a) in relation to a corporation, means a director, manager or secretary of, or any other person involved in the management of, the corporation;”\n120.\nThe meaning of “connivance” has been considered, at paragraphs 60-65, in\nHKSAR v Li Fung Ching Catherine\n[2012] 3 HKLRD 377\n:\n“60. The terms used in\ns.64B\nof the\nEmployment Ordinance\nare \"consent\", \"connivance\" and \"neglect\". It is spelt out clearly that the intention is to target the three different situations.\n61. In the Ordinance, there is no definition given to the term \"connivance\". Therefore, the term \"connivance\" should be interpreted in accordance with its usual meaning.\n62.\nThe New Longman Advanced Chinese Dictionary\ndefines the word \"connivance\" as indulgence and non-interference of misconduct.\n63. To connive at someone's act, whether or not one agrees or disagrees with it is not important, what is important is one fails to stop it from happening knowingly.\n64. The term \"connivance\" is used in the English version of the Ordinance. According to the\nShorter Oxford English Dictionary\n, the definition of \"connivance\" includes assistance in wrongdoing by conscious failure to prevent or condemn; or tacit permission. The word \"connive\" means shutting one's eyes to (something) .\n65. In the\nEnglish-Chinese Dictionary\nof Joint Publishing, \"connivance\" carries the meaning of \"turning a blind eye to an action one ought to oppose; and tacit permission\" which corresponds with the translation given in\nThe Oxford\n(one wrong character)\nEnglish-Chinese Dictionary.”\n121.\nIt is not in dispute that D2 was an officer of D1 at the material times. As I have ruled above that D2 did have knowledge of what D1, with the assistance by Michael, was doing all along and the content of the respective agreements, I have no difficulty at that to conclude that all the “holding-out” offences under section 114 could not have been committed by D1 without the assistance or consent or connivance of D2. The whole thing was procured and induced by D2 as elicited in the trial. At the very least, the commission of the offences must be attributable to the recklessness on the part of D2. As such I find that the commission of the offences by D1 were all aided, abetted, counselled, procured or induced by, or committed with the consent or connivance of, or attributable to any recklessness on the part of D2. Without any doubt, I find D2 guilty of all the summonses laid against her under 390 offences in respect of each of convicted offences stated above. In other words, I convicted D2 of summonses nos. ESS 30674, 30676 and 39232 of 2013 accordingly.\nConclusion\n122.\nTo conclude, I am satisfied that the prosecution has proved beyond all reasonable doubt that D1 is guilty of summonses nos. ESS 30673, 30675 and 39231 of 2013 and D2 is guilty of summonses nos. ESS 30674, 30676 and 39232 of 2013 accordingly.\n(June Cheung)\nMagistrate\nRepresentation :\nMiss PO Wing-kay, instructed by the Securities and Futures Commission, for the Prosecution\nMr Peter Duncan, SC and Mr Edwin Choy, instructed by Haldanes, for D1 and D2\n[1]\nESS 30671, 30673, 30675 of 2013 and 39231 of 2013 being an alternative to ESS 30671/2013\n[2]\nIn contravention of sections 114(1) (a) and 114(8) of the\nSecurities and Futures Ordinance\n,\nCap 571\n(“the Ordinance”)\n[3]\nIn contravention of section 114(1) (b) and (8) of the Ordinance\n[4]\nIn contravention of section 114(1) (b) and (8) of the Ordinance\n[5]\nESS 30672, 30674, 30676 of 2013 and 39232 of 2013 being a summons alternative to ESS 30671/2013\n[6]\nIn contravention of section 390 of the Ordinance\n[7]\nESS 30673/13 concerning UK Fur: $400,000; ESS 30675/13 concerning New Bonus: $200,000; ESS 39231/13\nconcerning 3 Wells: $300,000\n[8]\nESS 30674/13 concerning UK Fur: $300,000; ESS 30676/13 concerning New Bonus: $100,000; ESS 39232/13\nconcerning 3 Wells: $200,000\n[9]\nESS 30674/13 concerning UK Fur: 3 months; ESS 30676/13 concerning New Bonus: 3 months; ESS 39232/13 concerning 3 Wells: 6 months, all imprisonment to be served wholly concurrently.\n[10]\nThe issues of immunity and/or risk of Michael incriminating himself when giving evidence were actually raised by the court at the outset of the trial after Prosecution’s opening. SFC replied to the court, with no satisfactory reasons given, that such matter was still in the process of exploring and could not be decided until the last minute when Michael was called. Michael’s refusing to give evidence, on his own initiative, after taking oath due to obvious risk of incriminating himself was out of prosecution’s expectation. It was however obviously revealed in Prosecution’s opening (\nsee para.35 and 36 of Prosecution’s Opening\n) that Michael’s involvement would incriminate himself without the protection of an immunity. Those matters should have been thoroughly considered and settled well before trial. The court has expressed its concern to SFC that such undesirable situation should not recur in future.\n[11]\nExhibit P13 and P14\n[12]\nExhibit P21 and P22\n[13]\nExhibit P25, the letter was back-dated to 31 May 2012 upon request by Michael\n[14]\nConcerning summons ESS 30671/2013 and alternative summons ESS 39231/2013\n[15]\nConcerning summons ESS 39672/2013 and alternative summons ESS 39232/2013\n[16]\nExhibit P11\n[17]\nExhibit P2, P12 and P26\n[18]\nHin Lin Yee\nat paragraph 139\n,\nquoting\nGammon (Hong Kong) Ltd v Attorney General of Hong Kong\n[1985]\n1 AC 1\nat paragraph14\n[19]\nParagraphs 139-142 of\nHin Lin Yee\n[20]\nKulemesin Yuriy\nat paragraph 59 and\nHin Lin Yee\nat paragraph 141, quoting\nHe Kaw Teh v The Queen\n(1985) 157 CLR 523\nat paragraph 535,\n[21]\nKulemesin Yuriy\nat paragraph 107\n29 Exhibits D3, D4 and D16\n[22]\nPage 196 of\nHin Lin Yee\n[23]\nParagraph 91 of Securities and Futures Commission and Liu Su Ke\n[2010] 2 HKLRD 673\n[24]\nParagraph 28 of Securities and Futures Commission v Yu Ka Tak [2007] HKCLRT 728\n[25]\nParagraph 23 of Defence’s Closing Submission\n[26]\nParagraph 164 of\nHin Lin Yee\n[27]\nApplying paragraph 109 of\nKulemesin Yuriy\ncase\n[28]\nAdmitted Facts, paragraph 2.\n[29]\nExhibit P12\n[30]\nThe paragraph right after the name of Parties and Clause 1 “Engagement”\n[31]\nSub-clause (6) of Clause 2\n[32]\nSub-clause (11) of Clause 2\n[33]\nExhibit P14\n[34]\nGeoffrey Wong was also known as Wong Chi Fai in the email concerned\n[35]\nExhibit 15, page 56 of Exhibit Bundle\n[36]\nThe documents included MFGpro System work flow, Quality manual, dales cycle notes, purchase cycle notes, inventory cycle notes, shipment notes, the accounting entry flow and the payment and approval procedure and system notes for expenses, fixed asset cycle, treasury cycle and financial accounting cycle. Please see exhibit P15.\n[37]\nExhibit P16\n[38]\nThe documents included 3 Well’s organisation chart, history and development, projected profit and loss for 2011 and list of directorship and ownership: please see Exhibit P18\n[39]\nExhibit P17\n[40]\nExhibit P19\n[41]\nExhibit P20\n[42]\nExhibit P21\n[43]\nFirst draft: Exhibit P23; Amended version by Cheuk: Exhibit P24 and final version: Exhibit P25\n[44]\nExhibit P25\n[45]\nParagraph 61 referred\n[46]\nContrary to section 114 (1)(a) of the Ordinance\n[47]\nUnder section 114(1) (b) of the Ordinance\n[48]\nExhibit P2\n[49]\nThe email attaching the draft agreement was sent by Michael to D2 on 8 October 2010\n[50]\nExhibit P1\n[51]\nSub-clause (6) of Clause 2\n[52]\nSub-clause (12) of Clause 2\n[53]\nRespective cheques were paid on 20 October 2010 (P3), 17 January 2011(P5), 4 April 2011 (P7) and 30 June 2011 (P9)\n[54]\nAbout 1 year after signing the UK Fur Agreement (Exhibit P2)\n[55]\nExhibit P2A\n[56]\nExhibit P2B, signed about 13 months after the UK Fur Agreement (Exhibit P2)\n[57]\nExhibit P11\n[58]\nExhibit P2\n[59]\nExhibit P2B\n[60]\nExhibit P26\n[61]\nExhibit P12\n[62]\nExhibit P2\n[63]\nSub-clause (12) of Clause 2\n[64]\nExhibit P26\n[65]\nThe court relied on a New Zealand case of Oosterman v New Zealand Police [2007] NZAR 147 where Harrison J quoted the case of Mark & Others v Henshaw\n(1998) 85 FCR 555\n(FCA).\n[66]\nHKSAR v Ching Yeung Development Co Ltd\n[2001-2003] HKCLRT 343 applied.\n[67]\nExhibits P2, P12 and P26\n[68]\nExhibit P1\n[69]\nExhibit P2A\n[70]\nExhibit P2B\n[71]\nCheuk said the letter was sent to D1 (attention to D2) in around October 2012\n[72]\nExhibit P1\n[73]\nD2 told the court that she gave Michael $300,000 out of $600,000 she had received from UK Fur, $150,000 out of $300,000 received from 3 Wells, and several ten thousand dollars out of $170,000 from New Bonus.", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2013/ESS030671_2013.doc", + "file_name": "ESS030671_2013.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkmagc/2023_HKMagC_2/WKCC003633_2021_abp_fallback.txt b/en_cases_hkmagc/2023_HKMagC_2/WKCC003633_2021_abp_fallback.txt new file mode 100644 index 0000000..b09134d --- /dev/null +++ b/en_cases_hkmagc/2023_HKMagC_2/WKCC003633_2021_abp_fallback.txt @@ -0,0 +1,47 @@ +WKCC 3633/2021 [2023] HKMagC 2 IN THE WEST KOWLOON MAGISTRATES’ COURTS OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 3633 OF 2021 ________________ BETWEEN HKSAR and Chow Hang Tung (鄒幸彤) D1  Tang Ngok Kwan (鄧岳君) D2  Tsui Hon Kwong (徐漢光) D5  ________________ Coram: Mr Peter Law, Principal Magistrate Date of Verdict: 4 March 2023 __________________________ V E R D I C T __________________________ CONTENTS Page   (s)  Introduction The Facts Public Interest Immunity and Legal Professional Privilege +Preliminary issues The Trial proper The Evidence PW1 PW2 D1 The principles, history and the operation Explanation on the $20,000 from Org 4 Explanation on the $3,000 from “Asia Democracy Network” Interaction with other entities Donations The allegation of foreign agent Incorrect construction by PW1 Unreasonableness Oppression Legal issue Other matters Evaluation of evidence Finding of facts Legality of the Notice The Requirement The Challenges Systemic The National Security Law The Implementation Rules Operational “Reasonable grounds to believe” it to be a foreign agent The material times Reasonable belief as to necessity Use of wordings Retrospective Alternatives Ulterior motive Oppression +Balancing Issuing the Notice Conclusion The Open letter Statutory defence The Verdict 3-6 6-7 7-9 9-15 15 15-21 15-17 17-18 18-21 18 18-19 19 19 19 19 20 20 21 21 21 22-24 24-25 25-26 26-28 29-42 29-31 30 30-31 32-42 32-34 34 34-36 36-37 37 38 38-39 39-41 41 41-42 42 42-44 44 44-45     Attachment [1] The investigation report compiled by PW1  Attachment [2] The application to the Commissioner of Police and the Commissioner submitted for approval by the Secretary for Security  Attachment [3] A chart showing (i) the content and information before the Commissioner and (ii) the corresponding content and information upon which PW1 based as recorded in Attachment [1]   Introduction D1, D2, D5 and others are facing one count of failure to comply with notice to provide information. The particulars of the offence: “… on the 8th day of September, 2021, being an office-bearer of Hong Kong Alliance in Support of Patriotic Democratic Movements of China in Hong Kong, or a person managing or assisting in the management of the said organization in Hong Kong, who has been served with a notice under section 3(1)(b) of Schedule 5 to the Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative +Region (Instrument A406A), failed to comply with the said notice.” I have dealt with D1 before in other proceedings; as a professional Magistrate I will eliminate all irrelevant matters not relating to the present case and ensure a fair trial. There are multiple Defendants in this case and each case must be considered separately. Sch. 5 s1 states: “……………….. foreign agent (外國代理人)- means a person who carries on activities in Hong Kong, and- is directly or indirectly directed, directly or indirectly supervised, directly or indirectly controlled, employed, subsidized or funded by a foreign government or foreign political organization, or accepts monetary or non-monetary rewards from a foreign government or foreign political organization; and carries on all or part of the person’s activities for the benefit of a foreign government or foreign political organization; but does not include a diplomatic agent, a consular officer, or an employee of a consular post, who is entitled to privileges and immunities in Hong Kong in accordance with the laws of Hong Kong, or any other person or body that is entitled to privileges and immunities in Hong Kong in accordance with the laws of Hong Kong;” +Sch. 5 s3 states: “Regulation of foreign or Taiwan agents (1) If the Commissioner of Police reasonably believes that it is necessary to issue the requirement for the prevention and investigation of an offence endangering national security, the Commissioner may from time to time, with the approval of the Secretary for Security, by written notice served on a foreign agent or Taiwan agent, require the agent to provide the Commissioner with the following information within the specified period in the specified way- …………………… (b) if the agent is an organization- (i) the personal particulars of the staff of the organization in Hong Kong, and of the members of the organization in Hong Kong (including name, age, type and number of identification document, occupation and residential address); (ii) the activities of the organization in Hong Kong; (iii) the assets, income, sources of income, and expenditure of the organization in Hong Kong. …………………… (3) If a foreign agent or Taiwan agent is an organization- (a) the obligations imposed on the agent by subsection (1)(b) is binding on every office-bearer in Hong Kong, and on every person managing or assisting in the management of the organization in Hong Kong, if the office-bearer or person has been served with the notice under subsection (1); and (b) if the agent fails to comply with a notice served under subsection (1)(b), every office-bearer and person who is mentioned in paragraph (a) and who has been served with the notice commits and offence and is liable +on conviction on indictment to a fine of $100,000 and to imprisonment for 6 months unless the office-bearer or person establishes to the satisfaction of the court that the office-bearer or person has exercised due diligence and that the office-bearer or person has failed to comply with the notice for reasons beyond the office-bearer’s or person’s controls.” The Facts The Hong Kong Alliance in Support of Patriotic Democratic Movements of China (HKA) was incorporated in 1989 as a company under the Companies Ordinance until the recent winding up. At all material time, D1 was the vice-chairperson while D2 and D5 were committee members. On 25 August 2021, the Commissioner of Police in pursuance NSL 43 and Sch. 5 of the Implementation Rules (IR) issued and served Notice on D1, D2, D5 and others, requiring for some specified information in writing with supporting documents within 14 days. Before the expiration of the prescribed period, HKA held a press conference announcing their non-compliance and subsequently presented an open letter to the Commissioner on the last day of the period to show their dogged determination of non-compliance. The Defence asserted that: They were not foreign agent of any organization; They will challenge the legality of the Notice; +They will take issues on numerous aspects; Infringement of rights against self-incrimination and the rights to a fair trial, freedom of association and protection of privacy. Public Interest Immunity and Legal Professional Privilege The prosecution claimed Public Interest Immunity (PII) mainly on the grounds that the disclosure would jeopardise the ongoing investigation. The investigation report and the recommendations (see attachments [1] and [2]) were not solely targeted at HKA, but also related to ongoing investigation into other organizations and persons (the other targets). I have gone through all materials including the supporting affirmation of the Chief Secretary. I followed the steps laid down in HKSAR v Nyab Amin. My ruling on PII was not final, I have monitored the developments throughout the trial and review when necessary to fit the best interest of the Defence. The investigation is large-scale and still ongoing. National security is utmost importance to public interest. Leaking of secret +information, such as identities, strategies and interim investigation results of others would definitely seriously jeopardise the ongoing investigation. The key defence is the legality of the Notice, after the preliminary rulings, to prove as a matter of fact the subject organization was a foreign agent is not required. I ordered a redaction on: The identities of entities/person are subject to ongoing investigation; All acts, activities, roles and interim investigation results which could be reasonably be regarded as leading to the leaking of the identities; All information relating to ongoing investigation, but not related to HKA and the Defendants; in order to minimize the risk of any sidetrack strategy leading to reasonably guessing as to the identities of the targets; especially the exact amount or details of monetary transactions. After balancing, I deployed some safeguards, only to disclose the figures in number of digits. The focus is on the factual nexus involvement leading to the triggering of the measure rather than the identities of others. I do not see the non-disclosure of materials, other than which related to HKA and the Defendants would undermine a fair trial. +The PII is based on the said direction, I came to the view that the anonymity with limited disclosure of some factual nexus be sufficient for purpose of conducting the defence case and ensuring a fair trial. I am satisfied there is no possible detriment or disadvantage of any kind or degree to the Defence. As to the legal advice given by the Department of Justice, it is protected by Legal Professional Privilege. Preliminary issues Two issues have been posed for preliminary determination: “(1) Legality of the Notice Whether it is open to the defence to challenge the legality of the Notice in the context of Schedule 5 to the Implementation Rules in a criminal trial. Elements of the offence Under Section 3(3) of Schedule 5 to the Implementation Rules, whether the prosecution need to prove the subject organisation was as a matter of fact a foreign agent.” I deal with the second issue first. The information required under Sch. 5 are related to privacy, any overriding of fundamental rights should take a narrow approach. NSL 43 confers on the Police some power to obtain information by two means: (1) By a Police Notice under Schedule 5. +By a Production Order issued by a CFI Judge under Schedule 7. There is a statutory definition of foreign agent under Sch. 5 s1, but silent on the criteria to identify a particular organisation as a foreign agent (the threshold). Under Schedule 7: “Requirement to furnish information and produce materials (1) The Secretary for Justice may, for the purpose of an investigation into an offence endangering national security, make an ex parte application to the Court of First Instance for an order under subsection (2) in relation to a particular person or persons of a particular description. (2) The Court of First Instance may, if on such application is satisfied that the conditions in (4)(a), (b) and (d) or 4(a), (c) and (d) are fulfilled, make an order complying with subsection (3) in respect of the particular person or persons of the particular descriptions to whom the application relates.” Under Sch. 7 s2(4): “…………………. (b) Where the application relates to a particular person that there are reasonable grounds for suspecting that the person has information, or is in possession of materials likely to be relevant to the investigation; (c) Where the application relates to persons of a particular description, that - (i) there are reasonable grounds for suspecting that some or all persons of that description have such information or in possession of such material, and” +An analogy can be drawn between Schedule 5 measure and Schedule 7 on some special features. Schedule 5 Schedule 7  Purpose The Commissioner of Police reasonably believes that it is necessary for prevention and investigation of any offence endangering national security The Secretary of Justice may, for the purpose of an investigation into an offence with reasonable grounds for suspecting endangering national security has been committed  The recipient Foreign agent The person in possession of the information or materials relevant to the investigation  Threshold to identify the recipient No mentioned Reasonable grounds for suspecting  Issuing authority Commissioner of Police with the approval by Secretary for Security Ex-parte application to the Court of First Instance by the Secretary for Justice  Nature of order Notice to produce Production Order  Frequency From time to time No mentioned  Maximum penalty 6 months imprisonment and a fine of $100,000 12 months imprisonment and a fine of $100,000   There is no doubt that the Sch. 5 measure is comparatively less stringent than that under Sch. 7. +NSL 3 states: “………………………….. It is the duty of the Hong Kong Special Administrative Region under the Constitution to safeguard national security and the Region shall perform the duty accordingly. The executive authorities, legislature and judiciary of the Region shall effectively prevent, suppress and impose punishment for any act or activity endangering national security in accordance with this Law and other relevant laws.” Taking together both the effectiveness requirement under NSL 3, and the said special features of the Sch. 5; the IR is intended to provide an effective administrative procedure to facilitate the implementation of the National Security Law, in particular to NSL 43(5). I have the following observations: (1) It is clear that measures taken under Sch. 5 are meant to be responsive and effective, which is the purpose of NSL 3. (2) To set up a foreign agent or any associate with it is not an offence. There is no mandatory scheme or mechanism for setting up a foreign agent. It can even be as simple as registered as a company. As for an individual, there is also no requirement for registration. (3) There is no mechanism or scheme for setting up a foreign agent, nor is there any list thereof. +(4) A foreign agent is inevitably associated with overseas connections. To seek information, assistance from foreign authorities is unavoidable but, that would also be delayed with unexpected difficulties and even be unfeasible under the current climate. The lawmakers were well aware of that situation and the difficulties. (5) Sch. 5 measure is comparatively less stringent than Sch. 7 for reasons that: At a more peripheral stage. Less severe on the maximum penalties upon violation. More simplified in procedure. From the above observations, I conclude that: Lesser severity of the measure should be proportionate to lesser stringency of the threshold. The overall purpose of Sch. 5 is an effective measure for prevention and investigation of matters relating to national security. To be effective, the measure must be responsive and efficient. There is a deliberate silence on the threshold requirement for identification of a foreign agent; obviously the rulemakers were minded to create some +flexibility for the Commissioner to exercise his professional judgment at that juncture, regardless of the strict rules of evidence, the burden and standard required in a criminal trial. Identifying the foreign agent is the entry to and also part and parcel of the long process of effective prevention and investigation. Looking into the background and the purpose of the promulgation coupled with the deliberate silence on the threshold requirement; it is clear that the lawmakers and the rule-makers were not intended to create the proof of foreign agent as a matter of fact be an element of the offence upon non-compliance. Prevention and investigation is a state of surmise, the threshold must be relatively low, even not requiring prima facie proof. I rule that as a matter of law: (1) The concept of foreign agent is the conclusion of an administrative decision at that juncture, not an essential constituent element that the prosecution has to prove at the trial. (2) The prosecution need not prove the subject organisation was as a matter of fact a foreign agent. +I move back to the first issue. (1) There is no existing mechanism for licensing nor registration of foreign agent. The norm is all entities are without obligation to disclose their composition, activities or means unless by stipulation. (2) I am not convinced that, as a matter of law, the defence is barred from challenging the legality of the Notice on aspects not been ruled by me. I rule that the defence is entitled to challenge the legality of the Notice at trial for matters not been dealt with before. The Trial proper After my rulings on the preliminaries, the remaining issues for the trial proper is mainly on the legality of the Notice. The Evidence PW1 Superintendent Hung was in charge of the investigation team as well as the applicant to the Commissioner for the Sch. 5 Notice. He prepared an investigation report refined the information therein and submitted his application with recommendations to the Commissioner +who subsequent endorsed them with final approval by the Secretary for Security. In the investigation report and the application, HKA was amongst the other targets for the Sch. 5 measure. For easy reference, Mr Cheung for the prosecution has prepared a chart (see attachment [3]) on the key points of: The relevant information with the corresponding contents in the investigation report which was confirmed in evidence; The information put forward to the Commissioner for consideration. PW1 explained that even though some information could be retrieved from other sources, but still necessary for cross-checks on completeness, accuracy, mistakes and different interpretation. Under the marathon and intensive cross examination by D1 on numerous aspects, mostly circling around on: By using a lot of guessing tactics from all angles aiming at retrieval of the redacted information, in particular the identities of the organizations and persons; trying to establish HKA was not a foreign agent as PW1 had thought. +To distinguish the exact wordings of the political ends of HKA from other organization, to illustrate they were not on the same track; such as “to end one party ruling” as oppose to “end one party dictatorship” and “to rebuild a democratic China” as oppose to “to build a democratic China”; To laid the basis for her subsequent testimony to establish or raise doubt on to HKA not being any foreign agent with some examples; The query about the possible unreasonableness, that some information could be retrieved from other source; Make suggestion that certain description and events could have more than one interpretations and highlight some participants with double status who participated in a capacity not related to HKA; Suggestion of ulterior motive; bring out the disparity to illustrate possible fabrication as the Police had commenced strike off proceedings against HKA almost at the same time without mentioning HKA was a foreign agent. PW2 PW2 was the arresting officer upon instructions arrested D1 at her office on 8 September 2021. +All Defendants have clear record, I have to consider their propensity and also the credibility of D1 as she testified. D1 D1’s testimony was that she joined HKA after her graduation from university and had held different positions, including part time staff, volunteer, committee member and lastly became the vice-chairperson in 2015 till the compulsory strike off from the Companies Registry. She told about what she had experienced over the years as well as some of her observations. The principles, history and the operation HKA was a joint organization of lots of bodies. D1 reiterated HKA had never an agent or a puppet of any foreign entity. It acted independently according to their own objectives. Their Memorandum and Article of Association stipulated the income and property be applied solely on the promotion of their objects. Under the mechanism, the highest decisions were made at the general meeting and the committee was responsible for the daily operation. Explanation on the $20,000 from Org 4 HKA had launched an appeal for donations for the extension of their June 4 museum by purchasing a property at $8,000,000. They had been receiving donations from various bodies including a one-off +donation (not funding) of $20,000 from an entity which was a stranger and never had and would not have other dealing with HKA. Explanation on the $3,000 from “Asia Democracy Network” It was her personal reward for writing articles and nothing to do with HKA. Since the request was about HKA’s affair and it had nothing to do with her personal matters. Interaction with other entities In the course of its normal business, HKA had met with other entities which shared common objectives and involved in some interactions, including cooperation and joint participation in some activities and yet, it had never been an agent or acting for others’ interest. Donations HKA accepted general donations, but the donors had no say in HKA’s operation nor had there been any case that it had acted for their interest. The allegation of foreign agent D1 alleged that it was the Government’s tactics for propaganda to shift the focus from the international eye. +Incorrect construction by PW1 HKA never used such slogan: rebuild a democratic China as oppose to build; end one party ruling as oppose to directorship. PW1 had misunderstood the status of some participants who had more than one capacities who shown up in HKA activities. D1 criticised PW1’s suggestion of the alleged common purpose was not substantiated Unreasonableness D1 criticised the requirement is too harsh, too much, and too far. She contended some of the information could have been retrieved from other sources, such as the director’s list from the Companies Registry, the account ledger from auditor, activities from the yearbooks and activities pamphlets or open announcements. To retrieve information of the staff even dated back to 1989 is unreasonable since it was so long ago and with lots of difficulties. They even lost contacts with some of the staff. Furthermore, asking for identity card numbers and date of birth would trigger privacy issues. +Oppression Due to insufficient manpower and resources to deal with such large amount of information required, some of which even stored in the warehouse causing hardship. However, D1 agreed no specific arrangement nor steps had been taken to retrieve it, they only had discussion. Legal issue The requirement for provision under Sch. 5 s3(1) is “… to provide the Commissioner with the following information in writing, together with the relevant supporting documents, …”, however the extra requirements of “in writing” and “together with supporting documents” are outside the perimeter of Sch. 5. Other matters D1 also asserted that: the issue of the Notice was an abuse with an ulterior purpose of doxing information of all civil societies; Political persecution; HKA had no obligation to assist the Police. +Evaluation of evidence PW1’s testimony was focused on the information from his team’s investigation and his analysis. He was unshaken under intensive and marathon cross-examination. He was not narrow-minded, and was willing to accept suggestions of possible multi-interpretations or misunderstanding without hesitation or delay. PW1 declined to give answer on some areas due to the possible risk of jeopardising the restrictions in PII. Since he was in-charge of the whole information and in the know of the ongoing investigations, he was in the best position to evaluate the potential risk of leaking information; in particular he had been at the centre of an guessing exercise. His refusal to answer was justified. I am satisfied PW1 was an honest and truthful witness. I am satisfied when he evaluated the investigation result from his team members, he held an honest belief in its truthfulness. In this regard he performed an honest and bona fide analysis in his best endeavour and professionalism. I accept the flaws from the misinterpretation and misunderstanding would not affect his overall judgement. I accept his evidence in the factual aspect and also the facts that exhibits P19(1) and P20(1) are his honest and bona fide analysis and recommendations, being direct and not bent by the flaws. However, this is not the end of the matter. As to his analysis, I still have to take a panoramic look into the operational and other legal aspects on that factual basis. +PW2 was honest and truthful. He was the arresting officer with insignificant role in the incident and there was no challenge on his credibility and truthfulness of his testimony. I accept his evidence. D1’s testimony can be divided into: a description of the nature of HKA; her role in HKA and her experience; the factual material about certain incidents; her complaint of the faults in the Notice; her criticism of the analysis of PW1. For the factual aspect, the prosecution was not in any position to challenge the truthfulness and the substance as PW1 was an outsider did not have any participation in HKA’s activities; on this basis I accept those facts for the purpose of this trial. With regard to her speculative observations, those were lack of foundation, I cannot accept that. As to her observations related to legal aspects, I will deal with that in due course with the accepted factual basis. Her suggestion of options for retrieving information from open source; such as the yearbook, pamphlets and open announcements may negate part of the challenge on privacy will also be considered in due course. +D2 and D5 elected to remain silent nor did they call any defence witness. No adverse would be drawn for exercising their legal rights. Finding of facts There is not much dispute over the facts and my facts finding, inter alia, is: Since the establishment in 1989, HKA had been active and engaged in multiple nexus activities and interaction with Hong Kong and non-Hong Kong entities and people as stated in the investigation report and the recommendations; also had been holding at least one mass rally annually; Throughout the entire period concerned, direct and indirect flow of funds was recorded; HKA had the five operational goals throughout the years, some, not all, were common in nature with other entities; D1, D2 and D5 were amongst the office-bearers at the material time; PW1 honestly relied on and evaluated the investigation information, and he bona fide compiled +the investigation report and made recommendations to the Commissioner; The Commissioner endorsed the whole of PW1’s recommendations without any query or clarification; The Secretary of Security approved the measure; HKA held a press conference and sent an open letter to the Commissioner with D1, D2 and D5’s cosignatory; Up to the due date, none of the required information was provided; The Notice was properly served on all Defendants; The Defendants were aware of the requirement. Legality of the Notice The objective of NSL 43 and Sch. 5 is for prevention and investigation of an offence endangering national security. The foundations are: honest belief in the truthfulness of the information available at that time; the analysis was in bona fides; +the Commissioner made his decision according to the information at that time, not in hindsight. The Requirement The Notice: “According to the police investigation, the Commissioner of Police has reasonable grounds to believe that the “Hong Kong Alliance” is a “foreign agent’ specified in Section 1 of Schedule 5. Under Section 3(1) of Schedule 5, as the Commissioner of Police reasonably believes that it is necessary to issue the requirement of this notice for the prevention and investigation of an offence endangering national security, the Commissioner, with the approval of the Secretary for Security, by this notice served on the “Hong Kong Alliance”, requires the “Hong Kong Alliance” to provide the Commissioner with the following information in writing together with relevant supporting documents, within 14 days: [1] For the staff members in Hong Kong and the members in Hong Kong since the establishment of the “Hong Kong Alliance”, that is, the following persons: [i] directors, [ii] standing committee members (and) [iii] full-time staff members, Their personal information, including name, date of birth, type and number of the identification document, contact phone number, residential address, position and employment period shall be provided; [2] For the activities held in Hong Kong by the “Hong Kong Alliance” from 2014 to present, involving the following organizations or person [regardless of the organizations or person participating in the activities as joint organizers, co-organizers, sponsors or attendees, and including the activities conducted by contracting with the places outside Hong Kong with the use of the communication technology]: + [i] “New School for Democracy” established in Hong Kong, [ii] “China Human Rights Lawyers Concern Group”, [iii] political parties outside the territory of the People’s Republic of China or in Taiwan or other organizations outside the territory of the People’s Republic of China or in Taiwan that pursue political ends and/or their branches in Hong Kong, including “Federation for a Democratic China”, “Asia Democracy Network”, “New School for Democracy”, “The National Endowment for Democracy” and the organizations that receive money from “The National Endowment for Democracy” [including “National Democratic Institute”, “International Republican Institute”, “Solidarity Center” and “Center for International Private Enterprise”], (and) [iv] Mark Herman SIMON, Information on the activities concerned, including name, purpose, date, time and place of the activity, details of the person-in-charge, source of fund and breakdown of the expenditure, and all records of contacting the aforesaid organizations or person for organizing, holding, sponsoring or attending the aforesaid activities [including the electronic communication records] shall be provided; [3] Minutes of the following meetings that the “Hong Kong Alliance” convened in Hong Kong from 2014 to present [including the meetings with the places outside Hong Kong by communication technology] shall be provided: [i] board meetings and standing committee meetings, [ii] meetings with political parties outside the territory of the People’s Republic of China or in Taiwan or other organizations outside the territory of the People’s Republic of China or in +Taiwan that pursue political ends and/or their branches in Hong Kong [including “Federation for a Democratic China”], (and) [iii] meetings with Mark Herman SIMON; [4] The assets, revenue, sources of revenue and expenditure of the “Hong Kong Alliance” in Hong Kong from 2014 to present shall be provided, that is; [i] details of account(s) directly or indirectly held with the local bank(s) currently or previously, including the account number, the account holder and/or the ultimate beneficial owner, [ii] details of the assets like the property, vehicle(s), stock(s), etc., in Hong Kong directly or indirectly held currently or previously, [iii] all transactions and money dealing, including reason, purpose, date, amount, the bank account and the account book(s) involved, with “New School for Democracy” [whether it was established in Taiwan or Hong Kong or other places]; “China Human Rights Lawyers Concern Group”; “Federation for a Democratic China”; “Asia Democracy Network”; “The National Endowment for Democracy”; and the organizations that receive money from “The National Endowment for Democracy” [including “National Democratic Institute”, International Republican Institute”, “Solidarity Center” and “Center for International Private Enterprise”]; Mark Herman SIMON; and political parties outside the territory of the People’s Republic of China or in Taiwan or other organizations outside the territory of the People’s Republic of China or in Taiwan that pursue political ends and/or their branches in Hong Kong, (and) [iv] reason and purpose of CHOW Hang-tung, the vice-chairperson of the “Hong Kong Alliance”, receiving some HK$3,000 from “Asia Democracy Network” on 4th February 2021 shall be provided.” +The Challenges In Leung Kwok Hung, the Court of Appeal held: “182. Thus, the proportional analysis has to be applied on two different levels: (1) examining the systemic proportionality by reference to the legislation or rules in question: (2) examining the operational proportionality by reference to the actual implementation or enforcement of the relevant rule on the facts and specific circumstances of a case at the operational level. 183. In these appeals, it should be emphasized that we are only concerned with the first level of challenges. It remains for the court to assess the proportionality on the second level on the facts and circumstances in a particular case if a charge is brought against person.” Systemic NSL 43 confers on the law enforcement authorities, including the police, certain power: “When handling cases concerning offence endangering national security, the department for safeguarding national security of the Police Force of the Hong Kong Special Administrative Region may take measures that law enforcement authorities, including the Hong Kong Police Force, are allowed to apply under the laws in force in the Hong Kong Special Administrative Region in investigating serious crimes, and may also take the following measures:” ………………. “… (5) requiring a political organisation of a foreign country or outside the mainland, Hong Kong, and Macao of the People’s Republic of China, or an agent of authorities or a political +organisation of a foreign country or outside the mainland, Hong Kong, and Macao of the People’s Republic of China, to provide information;” The National Security Law In HKSAR v Lai Chee Ying Court of Final Appeal held: “37. In our view, in the light of Ng Ka Ling v Director of Immigration (No 2), the legislative acts of the NPC and NPCSC leading to the promulgation of the NSL as a law of the HKSAR, done in accordance with the provisions of the Basic Law and the procedure therein, are not subject to review on the basis of any alleged incompatibility as between the NSL and the Basic law or the ICCPR as applied to Hong Kong.” In the light of the above context; NSL is not the subject of any challenges. The Implementation Rules Under NSL 43: “… The Chief Executive shall be authorized, in conjunction with the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region, to make relevant implementation rules for the purpose of applying the measures under the first paragraph of this Article.” NSL 13 stipulates the composition of the Committee for Safeguarding National Security be: “The Chief Executive shall be the chairperson of the Committee for Safeguarding National security of the Hong Kong Special Administrative Region. The other members of the Committee shall be the Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice, the Secretary for Security, the Commissioner of Police, the head of the +department for safeguarding national security of the Hong Kong Police Force established under Article 16 of this Law, the Director of Immigration, the commissioner of Customs and Excise, and the Director of the Chief Executive’s Office. A secretariat headed by a secretary-General shall be established under the Committee. The Secretary-General shall be appointed by the Central People’s Government upon nomination by the Chief Executive.” Under NSL 14: “The duties and functions of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region shall be: ………………… advancing the development of the legal system and enforcement mechanisms of the Region for safeguarding national security; and ………………… No institution, organization or individual in the Region shall interfere with the work of the Committee. Information relating to the work of the Committee shall not be subject to disclosure. Decisions made by the Committee shall not be amenable to judicial review.” Judicial review is not a term of art; it must be construed accordingly to ordinary language together with the purpose of promulgation. The only logical understanding is the Committee’s decisions not be amenable to any judicial proceeding or decision. Also in the light of the above contexts, the Implementation Rules, are not the subject of any challenge. +Operational NSL 42 and Sch. 5 confer on the Police the power to issue the Notice with consequential penalty in case of non-compliance. At the same time it is expected the Police will exercise the executive power properly. Although the charge is failure to comply with the Notice, the essence of the trial is basically on the legitimacy of the Notice as the recipients contended they were not obliged to answer the purported Notice. (ab initio). Being a foreign agent is not an offence, the impugned provision is the non-compliance of the Notice. Owing to that special feature in this case, the legality of the Notice requires some studies. The application of operational proportionality analysis must be taken in full picture and done objectively. “Reasonable grounds to believe” it to be a foreign agent The IR already set out in Sch. 1 and Sch. 7 the mandatory standard of the threshold for identification of the target or recipient, but none is provided in Sch. 5, the Commissioner adopted the threshold of “reasonable grounds to believe”. +I have the following observations: To identify the foreign agent is the initial step to the measure; When multiple organizations, people and interactions were involved; some even overseas. Adopting a stringent standard of identification would be unrealistic; Information obtained at the early stage would normally be in loose pieces; Ensuring effectiveness is essential; National security is of cardinal importance; There is no existing mechanism for registration nor is there any existing list of foreign agents; The overall difficulties in the entire situations. Unlike Sch. 1 or Sch. 7 which requires strict judicial scrutiny, the application of Sch. 5 is comparatively less rigid and a slightly lower threshold is to be expected. “Reasonable grounds to believe” is not in itself a low standard but, just slightly lower than “reasonable grounds for suspecting”; with which there is still a series of hurdles to overcome in the balancing exercise. Having regard to the nature, purpose, necessities and to strike a balance between the measures and the rights concerned; the decision to adopt the threshold of “reasonable grounds to believe” can hardly be criticized. +With their backgrounds, political aims, activities and nexus with both locals and non-locals throughout the years, suffice to say is that “… the Commissioner of Police has reasonable grounds to believe that the ‘Hong Kong Alliance’ is a foreign agent’…” was the correct approach. The material times The material time relevant to legality is the point of time when the Commissioner made his decision, not in hindsight. Any subsequent information, no matter how significant it was, was irrelevant as the legitimacy had already been frozen at that point of time. Reasonable belief as to necessity All measures taken for prevention and investigation on national security must be executed in a solemn way, and thoroughly, and with the highest standard of professionalism. A professional investigation body will definitely have its own judgement and strategy to act on the needs raising in different circumstance. Exploration and analysis of information is the usual course of exercise. Divergence in the deployed tactics per se cannot be criticised as unreasonable and rejected unless it is found to be obviously absurd. To evaluate reasonableness of needs, one must not derail the purpose of NSL, the IR and the reality. +Foreign agent is a new concept in Hong Kong without any legal precedent. Being an agent per se is not an offence and there is no existing mechanism for registration, everything has to start from zero. Some agents are even hidden, so a comprehensive searching and screening exercise is necessary. HKA was set up in 1989 and had been carrying out non-stop political activities mainly circulating around the June 4 incident throughout the years. Most of their activities were nexus of interactions with local and non-local organizations and people. Inevitably a comprehensive list of directors and full-time staff would be required from the outset to ascertain the background of the organization. Retrieving their personal information for the purpose of identification was essential to the exercise. Information of recent years that needed to be ascertained included from the minutes, their interactions, affiliations, and also the monetary flows with some named specified subjects and entities. HKA’s full list of assets was also essential for the ascertaining of its backgrounds and functions. Since HKA had been running actively with various entities and people aboard, it is necessary to explore their dealings, connections, monetary flows and asset in order to find out their affiliation and ultimate purpose. Such requirement for information was nothing like a broad-brush fishing exercise but rather was constrained in terms of periods of +time and nature. The police had taken an abstemious and self-restrained approach. Use of wordings “Information” is a term with wide coverage of meanings, which includes all sort of facts or details about a situation, person and event. According to the Notice: “To provide the Commissioner with the following information in writing, together with relevant supporting documents, …” Under the interpretation section of the Personal Data (Privacy) Ordinance states: “data（資料）means any representation of information (including an expression of opinion) in any document, and includes a personal identifier,” “in writing” is the means of transmission of information, “supporting documents” is additional information requiring for the purpose of verification/corroboration. Personal data is a type of information contains personal details. “Investigation” is a broad description of the exercise, including to retrieve information and verification of its correctness. +The enabling law require the information is NSL 42(5): “requiring a … to provide information;” Suffice it to say that NSL 42(5) embraces Sch. 5 s3(1) and the Personal Data (Privacy) Ordinance. I cannot see the information required is anything would go beyond the perimeter of NSL 42(5) and Sch. 5. Retrospective In the present case, there are two aspects to explore: At the date of the offence; The calling for information of events took place before the promulgation of NSL. The present charge is non-compliance of the Notice served on 25 August 2021; there is no room for argument on retrospective issue. It has been suggested that some of the information required was dated before the promulgation of NSL and some even back to 1989 when it was a time of a different regime. The concept of national security is not just limited to an outbreak at a particular point of time but instead is, as can usually be found in most of cases, a continuation of series of acts with accumulative and generative aim to an ultimate end, be it a part of the adventure under the same or another different regime. In this case, the claim for retrospective limitation is invalid. +Alternatives Sch. 5 is intended for prevention and investigation. Hence no matter the information required was obtained by direct approach or indirect research from their yearbooks and pamphlets. The more direct must be better; at least to minimize the risk of delay and omission. It would be unrealistic to expect the Police first to obtain a full collection of yearbooks and pamphlets, then approach the target under investigation for its assistance in verification as to correctness and completeness at its discretion. Sch. 1 confers on Magistrate the power upon application, to issue search warrant to enter (to use reasonable force if necessary), to search, examine, seize and can detain anyone found therein until the conclusion of the search. Sch. 7 is about an ex-parte application by the Secretary for Justice to a judge of the Court of First Instance for a Production Order. The maximum penalty is one year imprisonment and a fine of $100,000, which is double the imprisonment in Sch. 5, upon violation. From the above information, suffice to say the Sch. 5 measure is the mildest of all. Ulterior motive Although the police had initiated another proceedings against HKA, striking off HKA from the Companies Registry is under a different mechanism and criteria. Any omission from mentioning +foreign agent is nothing odd or skeptical which should lead to any reasonable doubt on the genuineness of the Sch. 5 measure taken before me nor was there any ulterior motive behind. I am satisfied Superintendent Hung held an honest belief in the truthfulness of the investigation information and he acted bona fide on his analysis. Oppression The assessment of oppression is not merely on theoretical concept; it must be practical by looking into the whole picture, including the capabilities, resources and the conduct of the recipient. The requirement of large amount of information, some even aged, within 14 days, sounded tough on the face of it, but there are some additional features of this case: A liaison contact point was provided in the Notice, which could form a channel for some constructive and potential relief if necessary; The high-profile press conference and the open letter, was a clear message of total refusal; That letter clearly stated that the refusal was due to some legal issues involved, which shows the recipients had considered all the information required; +None of the required information was provided in the end. I have the following observations: Most of the information required was not that aged, only back from 2014; Some of the information required is actually the information that needs to be maintained. Examples are: accounting records and the supporting documents for years for spot check by the Inland Revenue; the tax return and the provident fund documents with personal details of all the employees; D1 offered an explanation to the Court about the details of some of the requested information which was supposed could have been given to the Police at that time. From what can be seen, it was not that difficult to retrieve the required information; No constructive actual attempt had been made for any retrieval, not even on the easy ones. Based on the above, it is difficult to justify the significance of hardship was in any sense compromised when the Defendants had +provided none, not even some were not that hard to be accessed. There is no room for any claims of oppression. Balancing National security is cardinal importance to public interest and the whole nation. For prevention and investigation, information is the core of the measure; any obstruction would defeat the whole process. From the facts before me, the requirement was in an abstemious and restrained manner, all confined to reasonable necessary. Given the close nexus, interactions amongst HKA and the others who shared common objectives and the monetary flows. I am satisfied all the required information is necessary for the prevention and investigation of an offence endangering national security. Taken an objective, panoramic and complete evaluation of all evidence before me, I am satisfied an overall fair balance had been achieved. Issuing the Notice Although the Commissioner only had the recommendations from Superintendent Hung, it was a refinement of the investigation report in simple and direct terms put in context from one professional to his superior, focusing on the issues for the Commissioner’s decision. +The Commissioner endorsed the recommendations without query or seeking clarification was a sign of his satisfaction to the sufficiency of information which enable him to make his professional decision. There is no material faulty on the Commissioner’s decision. Conclusion In this case, the legality of the Notice is strictly related to the time when it was served; therefore the Court’s consideration is confined to that material moment. D1’s subsequent explanation with details in Court on some of the events, monetary transactions and nexus which is part and parcel of the information required; which should have been provided before the deadline, not in hindsight. I am satisfied the Notice was sound and legal at the time when it was served. There is no grounds to exercise my discretion to reject it. I rule the Notice was legal and the recipients were obliged to provide the information required. The Open letter HKA submitted an open letter co-signed by D1, D2, D5 and others to Commissioner of Police: +“ An Open Letter from the Hong Kong Alliance in Reply to the Commissioner of Police Regarding the letter dated 25th August 2021 to the Hong Kong Alliance from the Commissioner of Police [hereinafter referred to as ‘the Letter’] in accordance with Schedule 5 of the Implementation Rules for Article 43 of the National Security Law [hereinafter referred to as Schedule 5], the Alliance would like to make the following responses: The Alliance is not a ‘foreign agent’. Therefore, the Commissioner of Police has no power to request the provision of information from the Alliance under Schedule 5. The Commissioner of Police made an error of law by mistakenly assuming that as long as he ‘had reasonable grounds to believe’ that the Alliance was a ‘foreign agent’ specified in Section 1 of Schedule 5, he could make a request for the provision of information in accordance with Schedule 5. Schedule 5 is application only if the organization is in fact a foreign agent. Merely ‘having reasonable grounds to believe’ does not suffice. The Commissioner of Police failed to provide any justification to explain: On what reasonable ground did (he) believe that the Alliance was a ‘foreign agent’? Why did (he) reasonably believe the issuance of the Letter was necessary for the prevention and investigation of an offence endangering national security? The nature of the offence endangering national security to be investigated and how it was related to the required information; It is a violation of the rules of natural justice. In summary, the Alliance is of the view that there is no legal basis for the issuance of the Letter. Therefore, we will not provide any information as requested in the Letter.” +There is clear evidence of no intention to provide the required information whatsoever. Statutory defence Under Sch. 5 s3 (3)(b): “unless the office-bearer or person establishes to the satisfaction of the court that the office-bearer or person has exercised due diligence and that the office-bearer or person has failed to comply with the notice for reasons beyond the office-bearer’s or person’s controls.” In the present case, nothing of the above was done to support such. They took no actual steps to retrieve the required information. Instead they merely held discussions among themselves. The Verdict The conclusion is: the Notice was legal when it was served on D1, D2 and D5 respectively; the Defendants were obliged to answer; the Defendants’ non-compliances was unjustified. I am satisfied beyond reasonable doubt the prosecution has established their case on every aspect. +I thereby convict D1, D2 and D5 accordingly. (Peter Law) Principal Magistrate Mr Anthony Chau, DDPP (Ag.), Mr Ivan Cheung, ADPP (Ag.) and Ms Karen Ng, SPP of the Department of Justice, for the HKSAR D1 appeared in person Mr Esmond Wong, instructed by Messrs L & W Lawyers, for D2 Mr Philip Dykes SC leading Mr Albert Wong, instructed by Messrs Kenneth Lam, Solicitors, for D5 + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/en_cases_hkmagc/2023_HKMagC_2/case.json b/en_cases_hkmagc/2023_HKMagC_2/case.json new file mode 100644 index 0000000..8915137 --- /dev/null +++ b/en_cases_hkmagc/2023_HKMagC_2/case.json @@ -0,0 +1,26 @@ +{ + "Date": "4 Mar, 2023", + "Action No.": "WKCC3633/2021", + "Neutral Cit.": "[2023] HKMagC 2", + "case_title": "HKSAR V. CHOW HANG TUNG AND OTHERS", + "page_title": "HKSAR V. CHOW HANG TUNG AND OTHERS | [2023] HKMagC 2 | HKLII", + "case_history": [ + { + "name": "WKCC3633/2021", + "link": "https://www.hklii.hk/en/appealhistory/WKCC/2021/3633" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkmagc/2023/2", + "neutral_cit": "[2023] HKMagC 2", + "court_code": "HKMAGC", + "content": "WKCC3633/2021 HKSAR v. CHOW HANG TUNG AND OTHERS\nPress Summary (English)\nPress Summary (Chinese)\nWKCC 3633/2021\n[2023] HKMagC 2\nIN THE WEST KOWLOON MAGISTRATES’ COURTS OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCRIMINAL CASE NO. 3633 OF 2021\n____________________\nBETWEEN\nHKSAR\nand\nChow Hang Tung (鄒幸彤)\nD1\nTang Ngok Kwan (鄧岳君)\nD2\nTsui Hon Kwong (徐漢光)\nD5\n____________________\nCoram: Mr Peter Law, Principal Magistrate\nDate of Verdict: 4 March 2023\n__________________________\nV E R D I C T\n__________________________\nCONTENTS\nIntroduction\nThe Facts\nPublic Interest Immunity and Legal Professional Privilege\nPreliminary issues\nThe Trial proper\nThe Evidence\nPW1\nPW2\nD1\nThe principles, history and the operation\nExplanation on the $20,000 from Org 4\nExplanation on the $3,000 from “Asia Democracy Network”\nInteraction with other entities\nDonations\nThe allegation of foreign agent\nIncorrect construction by PW1\nUnreasonableness\nOppression\nLegal issue\nOther matters\nEvaluation of evidence\nFinding of facts\nLegality of the Notice\nThe Requirement\nThe Challenges\nSystemic\nThe National Security Law\nThe Implementation Rules\nOperational\n“Reasonable grounds to believe” it to be a foreign agent\nThe material times\nReasonable belief as to necessity\nUse of wordings\nRetrospective\nAlternatives\nUlterior motive\nOppression\nBalancing\nIssuing the Notice\nConclusion\nThe Open letter\nStatutory defence\nThe Verdict\nAttachment [1]\nThe investigation report compiled by PW1\nAttachment [2]\nThe application to the Commissioner of Police and the Commissioner submitted for approval by the Secretary for Security\nAttachment [3]\nA chart showing (i) the content and information before the Commissioner and (ii) the corresponding content and information upon which PW1 based as recorded in Attachment [1]\nIntroduction\n1.\nD1, D2, D5 and others are facing one count of failure to comply with notice to provide information.\n2.\nThe particulars of the offence:\n“… on the 8\nth\nday of September, 2021, being an office-bearer of Hong Kong Alliance in Support of Patriotic Democratic Movements of China in Hong Kong, or a person managing or assisting in the management of the said organization in Hong Kong, who has been served with a notice under section 3(1)(b) of Schedule 5 to the\nImplementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region\n(Instrument A406A), failed to comply with the said notice\n[1]\n.”\n3.\nI have dealt with D1 before in other proceedings; as a professional Magistrate I will eliminate all irrelevant matters not relating to the present case and ensure a fair trial.\n4.\nThere are multiple Defendants in this case and each case must be considered separately.\n5.\nSch. 5 s1 states:\n“………………..\nforeign agent\n(外國代理人)-\n(a) means a person who carries on activities in Hong Kong, and-\n(i) is directly or indirectly directed, directly or indirectly supervised, directly or indirectly controlled, employed, subsidized or funded by a foreign government or foreign political organization, or accepts monetary or non-monetary rewards from a foreign government or foreign political organization; and\n(ii) carries on all or part of the person’s activities for the benefit of a foreign government or foreign political organization; but\n(b) does not include a diplomatic agent, a consular officer, or an employee of a consular post, who is entitled to privileges and immunities in Hong Kong in accordance with the laws of Hong Kong, or any other person or body that is entitled to privileges and immunities in Hong Kong in accordance with the laws of Hong Kong;”\n6.\nSch. 5 s3 states:\n“Regulation of foreign or Taiwan agents\n(1) If the Commissioner of Police reasonably believes that it is necessary to issue the requirement for the prevention and investigation of an offence endangering national security, the Commissioner may from time to time, with the approval of the Secretary for Security, by written notice served on a foreign agent or Taiwan agent, require the agent to provide the Commissioner with the following information within the specified period in the specified way-\n……………………\n(b) if the agent is an organization-\n(i) the personal particulars of the staff of the organization in Hong Kong, and of the members of the organization in Hong Kong (including name, age, type and number of identification document, occupation and residential address);\n(ii) the activities of the organization in Hong Kong;\n(iii) the assets, income, sources of income, and expenditure of the organization in Hong Kong.\n……………………\n(3) If a foreign agent or Taiwan agent is an organization-\n(a) the obligations imposed on the agent by subsection (1)(b) is binding on every office-bearer in Hong Kong, and on every person managing or assisting in the management of the organization in Hong Kong, if the office-bearer or person has been served with the notice under subsection (1); and\n(b) if the agent fails to comply with a notice served under subsection (1)(b), every office-bearer and person who is mentioned in paragraph (a) and who has been served with the notice commits and offence and is liable on conviction on indictment to a fine of $100,000 and to imprisonment for 6 months unless the office-bearer or person establishes to the satisfaction of the court that the office-bearer or person has exercised due diligence and that the office-bearer or person has failed to comply with the notice for reasons beyond the office-bearer’s or person’s controls.”\nThe Facts\n7.\nThe Hong Kong Alliance in Support of Patriotic Democratic Movements of China\n[2]\n(HKA) was incorporated in 1989 as a company under the\nCompanies Ordinance\nuntil the recent winding up. At all material time, D1 was the vice-chairperson while D2 and D5 were committee members.\n8.\nOn 25 August 2021, the Commissioner of Police in pursuance NSL 43 and Sch. 5 of the Implementation Rules (IR) issued and served Notice on D1, D2, D5 and others, requiring for some specified information in writing with supporting documents within 14 days.\n9.\nBefore the expiration of the prescribed period, HKA held a press conference announcing their non-compliance and subsequently presented an open letter to the Commissioner on the last day of the period to show their dogged determination of non-compliance.\n10.\nThe Defence asserted that:\n(1) They were not foreign agent of any organization;\n(2) They will challenge the legality of the Notice;\n(3) They will take issues on numerous aspects;\n(4) Infringement of rights against self-incrimination\n[3]\nand the rights to a fair trial\n[4]\n, freedom of association\n[5]\nand protection of privacy\n[6]\n.\nPublic Interest Immunity and Legal Professional Privilege\n11.\nThe prosecution claimed Public Interest Immunity (PII) mainly on the grounds that the disclosure would jeopardise the ongoing investigation.\n12.\nThe investigation report\n[7]\nand the recommendations\n[8]\n(see attachments [1] and [2])\nwere not solely targeted at HKA, but also related to ongoing investigation into other organizations and persons (the other targets).\n13.\nI have gone through all materials including the supporting affirmation of the Chief Secretary. I followed the steps laid down in\nHKSAR v Nyab Amin\n[9]\n. My ruling on PII was not final, I have monitored the developments throughout the trial and review when necessary to fit the best interest of the Defence.\n14.\nThe investigation is large-scale and still ongoing. National security is utmost importance to public interest. Leaking of secret information, such as identities, strategies and interim investigation results of others would definitely seriously jeopardise the ongoing investigation.\n15.\nThe key defence is the legality of the Notice, after the preliminary rulings, to prove as a matter of fact the subject organization was a foreign agent is not required.\n16.\nI ordered a redaction on:\ni. The identities of entities/person are subject to ongoing investigation;\nii. All acts, activities, roles and interim investigation results which could be reasonably be regarded as leading to the leaking of the identities;\niii. All information relating to ongoing investigation, but not related to HKA and the Defendants;\nin order to minimize the risk of any sidetrack strategy leading to reasonably guessing as to the identities of the targets; especially the exact amount or details of monetary transactions. After balancing, I deployed some safeguards, only to disclose the figures in number of digits.\n17.\nThe focus is on the factual nexus involvement leading to the triggering of the measure rather than the identities of others. I do not see the non-disclosure of materials, other than which related to HKA and the Defendants would undermine a fair trial.\n18.\nThe PII is based on the said direction, I came to the view that the anonymity with limited disclosure of some factual nexus be sufficient for purpose of conducting the defence case and ensuring a fair trial. I am satisfied there is no possible detriment or disadvantage of any kind or degree to the Defence.\n19.\nAs to the legal advice given by the Department of Justice, it is protected by Legal Professional Privilege.\nPreliminary issues\n20.\nTwo issues have been posed for preliminary determination:\n“(1)\nLegality of the Notice\nWhether it is open to the defence to challenge the legality of the Notice in the context of Schedule 5 to the Implementation Rules in a criminal trial.\n(2)\nElements of the offence\nUnder Section 3(3) of Schedule 5 to the Implementation Rules, whether the prosecution need to prove the subject organisation was as a matter of fact a foreign agent.”\n21.\nI deal with the second issue first.\n22.\nThe information required under Sch. 5 are related to privacy, any overriding of fundamental rights should take a narrow approach.\n23.\nNSL 43 confers on the Police some power to obtain information by two means:\n(1) By a Police Notice under Schedule 5.\n(2) By a Production Order issued by a CFI Judge under Schedule 7.\n24.\nThere is a statutory definition of foreign agent under Sch. 5 s1, but silent on the criteria to identify a particular organisation as a foreign agent (the threshold).\n25.\nUnder Schedule 7:\n“\nRequirement to furnish information and produce materials\n(1) The Secretary for Justice may, for the purpose of an investigation into an offence endangering national security, make an ex parte application to the Court of First Instance for an order under subsection (2) in relation to a particular person or persons of a particular description.\n(2) The Court of First Instance may, if on such application is satisfied that the conditions in (4)(a), (b) and (d) or 4(a), (c) and (d) are fulfilled, make an order complying with subsection (3) in respect of the particular person or persons of the particular descriptions to whom the application relates.”\n26.\nUnder Sch. 7 s2(4):\n“………………….\n(b) Where the application relates to a particular person that there are reasonable grounds for suspecting that the person has information, or is in possession of materials likely to be relevant to the investigation;\n(c) Where the application relates to persons of a particular description, that -\n(i) there are reasonable grounds for suspecting that some or all persons of that description have such information or in possession of such material, and”\n27.\nAn analogy can be drawn between Schedule 5 measure and Schedule 7 on some special features.\nSchedule 5\nSchedule 7\nPurpose\nThe Commissioner of Police reasonably believes that it is necessary for prevention and investigation of any offence endangering national security\nThe Secretary of Justice may, for the purpose of an investigation into an offence with reasonable grounds for suspecting endangering national security has been committed\nThe recipient\nForeign agent\nThe person in possession of the information or materials relevant to the investigation\nThreshold to identify the recipient\nNo mentioned\nReasonable grounds for suspecting\nIssuing authority\nCommissioner of Police with the approval by Secretary for Security\nEx-parte application to the Court of First Instance by the Secretary for Justice\nNature of order\nNotice to produce\nProduction Order\nFrequency\nFrom time to time\nNo mentioned\nMaximum penalty\n6 months imprisonment and a fine of $100,000\n12 months imprisonment and a fine of $100,000\n28.\nThere is no doubt that the Sch. 5 measure is comparatively less stringent than that under Sch. 7.\n29.\nNSL 3 states:\n“…………………………..\nIt is the duty of the Hong Kong Special Administrative Region under the Constitution to safeguard national security and the Region shall perform the duty accordingly.\nThe executive authorities, legislature and judiciary of the Region shall effectively prevent, suppress and impose punishment for any act or activity endangering national security in accordance with this Law and other relevant laws.”\n30.\nTaking together both the effectiveness requirement under NSL 3, and the said special features of the Sch. 5; the IR is intended to provide an effective administrative procedure to facilitate the implementation of the National Security Law, in particular to NSL 43(5).\n31.\nI have the following observations:\n(1) It is clear that measures taken under Sch. 5 are meant to be responsive and effective, which is the purpose of NSL 3.\n(2) To set up a foreign agent or any associate with it is not an offence. There is no mandatory scheme or mechanism for setting up a foreign agent. It can even be as simple as registered as a company. As for an individual, there is also no requirement for registration.\n(3) There is no mechanism or scheme for setting up a foreign agent, nor is there any list thereof.\n(4) A foreign agent is inevitably associated with overseas connections. To seek information, assistance from foreign authorities is unavoidable but, that would also be delayed with unexpected difficulties and even be unfeasible under the current climate. The lawmakers were well aware of that situation and the difficulties.\n(5) Sch. 5 measure is comparatively less stringent than Sch. 7 for reasons that:\n(i) At a more peripheral stage.\n(ii) Less severe on the maximum penalties upon violation.\n(iii) More simplified in procedure.\n32.\nFrom the above observations, I conclude that:\na) Lesser severity of the measure should be proportionate to lesser stringency of the threshold.\nb) The overall purpose of Sch. 5 is an effective measure for prevention and investigation of matters relating to national security. To be effective, the measure must be responsive and efficient.\nc) There is a deliberate silence on the threshold requirement for identification of a foreign agent; obviously the rule‑makers were minded to create some flexibility for the Commissioner to exercise his professional judgment at that juncture, regardless of the strict rules of evidence, the burden and standard required in a criminal trial.\nd) Identifying the foreign agent is the entry to and also part and parcel of the long process of effective prevention and investigation. Looking into the background and the purpose of the promulgation coupled with the deliberate silence on the threshold requirement; it is clear that the lawmakers and the rule-makers were not intended to create the proof of foreign agent as a matter of fact be an element of the offence upon non-compliance.\ne) Prevention and investigation is a state of surmise, the threshold must be relatively low, even not requiring prima facie proof.\n33.\nI rule that as a matter of law:\n(1) The concept of foreign agent is the conclusion of an administrative decision at that juncture, not an essential constituent element that the prosecution has to prove at the trial.\n(2) The prosecution need not prove the subject organisation was as a matter of fact a foreign agent.\n34.\nI move back to the first issue.\n(1) There is no existing mechanism for licensing nor registration of foreign agent. The norm is all entities are without obligation to disclose their composition, activities or means unless by stipulation.\n(2) I am not convinced that, as a matter of law, the defence is barred from challenging the legality of the Notice on aspects not been ruled by me.\nI rule that the defence is entitled to challenge the legality of the Notice at trial for matters not been dealt with before.\nThe Trial proper\n35.\nAfter my rulings on the preliminaries, the remaining issues for the trial proper is mainly on the legality of the Notice.\nThe Evidence\nPW1\n36.\nSuperintendent Hung was in charge of the investigation team as well as the applicant to the Commissioner for the Sch. 5 Notice. He prepared an investigation report\n[10]\nrefined the information therein and submitted his application with recommendations\n[11]\nto the Commissioner who subsequent endorsed them with final approval by the Secretary for Security.\n37.\nIn the investigation report and the application, HKA was amongst the other targets for the Sch. 5 measure.\n38.\nFor easy reference, Mr Cheung for the prosecution has prepared a chart\n[12]\n(see attachment [3])\non the key points of:\n(i) The relevant information with the corresponding contents in the investigation report which was confirmed in evidence;\n(ii) The information put forward to the Commissioner for consideration.\n39.\nPW1 explained that even though some information could be retrieved from other sources, but still necessary for cross-checks on completeness, accuracy, mistakes and different interpretation.\n40.\nUnder the marathon and intensive cross examination by D1 on numerous aspects, mostly circling around on:\n(1) By using a lot of guessing tactics from all angles aiming at retrieval of the redacted information, in particular the identities of the organizations and persons; trying to establish HKA was not a foreign agent as PW1 had thought.\n(2) To distinguish the exact wordings of the political ends of HKA from other organization, to illustrate they were not on the same track; such as “to end one party ruling” as oppose to “end one party dictatorship” and “to rebuild a democratic China” as oppose to “to build a democratic China”;\n(3) To laid the basis for her subsequent testimony to establish or raise doubt on to HKA not being any foreign agent with some examples;\n(4) The query about the possible unreasonableness, that some information could be retrieved from other source;\n(5) Make suggestion that certain description and events could have more than one interpretations and highlight some participants with double status who participated in a capacity not related to HKA;\n(6) Suggestion of ulterior motive; bring out the disparity to illustrate possible fabrication as the Police had commenced strike off proceedings against HKA almost at the same time without mentioning HKA was a foreign agent.\nPW2\n41.\nPW2 was the arresting officer upon instructions arrested D1 at her office on 8 September 2021.\n42.\nAll Defendants have clear record, I have to consider their propensity and also the credibility of D1 as she testified.\nD1\n43.\nD1’s testimony was that she joined HKA after her graduation from university and had held different positions, including part time staff, volunteer, committee member and lastly became the vice-chairperson in 2015 till the compulsory strike off from the Companies Registry. She told about what she had experienced over the years as well as some of her observations.\nThe principles, history and the operation\n44.\nHKA was a joint organization of lots of bodies. D1 reiterated HKA had never an agent or a puppet of any foreign entity. It acted independently according to their own objectives. Their Memorandum and Article of Association stipulated the income and property be applied solely on the promotion of their objects. Under the mechanism, the highest decisions were made at the general meeting and the committee was responsible for the daily operation.\nExplanation on the $20,000 from Org 4\n[13]\n45.\nHKA had launched an appeal for donations for the extension of their June 4 museum by purchasing a property at $8,000,000. They had been receiving donations from various bodies including a one-off donation (not funding) of $20,000 from an entity which was a stranger and never had and would not have other dealing with HKA.\nExplanation on the $3,000 from “Asia Democracy Network”\n46.\nIt was her personal reward for writing articles and nothing to do with HKA. Since the request was about HKA’s affair and it had nothing to do with her personal matters.\nInteraction with other entities\n47.\nIn the course of its normal business, HKA had met with other entities which shared common objectives and involved in some interactions, including cooperation and joint participation in some activities and yet, it had never been an agent or acting for others’ interest.\nDonations\n48.\nHKA accepted general donations, but the donors had no say in HKA’s operation nor had there been any case that it had acted for their interest.\nThe allegation of foreign agent\n49.\nD1 alleged that it was the Government’s tactics for propaganda to shift the focus from the international eye.\nIncorrect construction by PW1\n50.\nHKA never used such slogan:\n• rebuild a democratic China as oppose to build;\n• end one party ruling as oppose to directorship.\n51.\nPW1 had misunderstood the status of some participants who had more than one capacities who shown up in HKA activities.\n52.\nD1 criticised PW1’s suggestion of the alleged common purpose was not substantiated\nUnreasonableness\n53.\nD1 criticised the requirement is too harsh, too much, and too far.\n54.\nShe contended some of the information could have been retrieved from other sources, such as the director’s list from the Companies Registry, the account ledger from auditor, activities from the yearbooks and activities pamphlets or open announcements.\n55.\nTo retrieve information of the staff even dated back to 1989 is unreasonable since it was so long ago and with lots of difficulties. They even lost contacts with some of the staff. Furthermore, asking for identity card numbers and date of birth would trigger privacy issues.\nOppression\n56.\nDue to insufficient manpower and resources to deal with such large amount of information required, some of which even stored in the warehouse causing hardship. However, D1 agreed no specific arrangement nor steps had been taken to retrieve it, they only had discussion.\nLegal issue\n57.\nThe requirement for provision under Sch. 5 s3(1) is “… to provide the Commissioner with the following information in writing, together with the relevant supporting documents, …”, however the extra requirements of “in writing” and “together with supporting documents” are outside the perimeter of Sch. 5.\nOther matters\n58.\nD1 also asserted that:\n• the issue of the Notice was an abuse with an ulterior purpose of doxing information of all civil societies;\n• Political persecution;\n• HKA had no obligation to assist the Police.\nEvaluation of evidence\n59.\nPW1’s testimony was focused on the information from his team’s investigation and his analysis. He was unshaken under intensive and marathon cross-examination. He was not narrow-minded, and was willing to accept suggestions of possible multi-interpretations or misunderstanding without hesitation or delay.\n60.\nPW1 declined to give answer on some areas due to the possible risk of jeopardising the restrictions in PII. Since he was in-charge of the whole information and in the know of the ongoing investigations, he was in the best position to evaluate the potential risk of leaking information; in particular he had been at the centre of an guessing exercise. His refusal to answer was justified.\n61.\nI am satisfied PW1 was an honest and truthful witness. I am satisfied when he evaluated the investigation result from his team members, he held an honest belief in its truthfulness. In this regard he performed an honest and\nbona fide\nanalysis in his best endeavour and professionalism. I accept the flaws from the misinterpretation and misunderstanding would not affect his overall judgement. I accept his evidence in the factual aspect and also the facts that exhibits P19(1) and P20(1) are his honest and\nbona fide\nanalysis and recommendations, being direct and not bent by the flaws.\n62.\nHowever, this is not the end of the matter. As to his analysis, I still have to take a panoramic look into the operational and other legal aspects on that factual basis.\n63.\nPW2 was honest and truthful. He was the arresting officer with insignificant role in the incident and there was no challenge on his credibility and truthfulness of his testimony. I accept his evidence.\n64.\nD1’s testimony can be divided into:\n(i) a description of the nature of HKA;\n(ii) her role in HKA and her experience;\n(iii) the factual material about certain incidents;\n(iv) her complaint of the faults in the Notice;\n(v) her criticism of the analysis of PW1.\n65.\nFor the factual aspect, the prosecution was not in any position to challenge the truthfulness and the substance as PW1 was an outsider did not have any participation in HKA’s activities; on this basis I accept those facts for the purpose of this trial. With regard to her speculative observations, those were lack of foundation, I cannot accept that.\n66.\nAs to her observations related to legal aspects, I will deal with that in due course with the accepted factual basis.\n67.\nHer suggestion of options for retrieving information from open source; such as the yearbook, pamphlets and open announcements may negate part of the challenge on privacy will also be considered in due course.\n68.\nD2 and D5 elected to remain silent nor did they call any defence witness. No adverse would be drawn for exercising their legal rights.\nFinding of facts\n69.\nThere is not much dispute over the facts and my facts finding,\ninter alia\n, is:\n(1) Since the establishment in 1989, HKA had been active and engaged in multiple nexus activities and interaction with Hong Kong and non-Hong Kong entities and people as stated in the investigation report\n[14]\nand the recommendations\n[15]\n; also had been holding at least one mass rally annually;\n(2) Throughout the entire period concerned, direct and indirect flow of funds was recorded;\n(3) HKA had the five operational goals throughout the years, some, not all, were common in nature with other entities;\n(4) D1, D2 and D5 were amongst the office-bearers at the material time;\n(5) PW1 honestly relied on and evaluated the investigation information, and he\nbona fide\ncompiled the investigation report\n[16]\nand made recommendations\n[17]\nto the Commissioner;\n(6) The Commissioner endorsed the whole of PW1’s recommendations without any query or clarification;\n(7) The Secretary of Security approved the measure;\n(8) HKA held a press conference and sent an open letter to the Commissioner with D1, D2 and D5’s cosignatory;\n(9) Up to the due date, none of the required information was provided;\n(10) The Notice was properly served on all Defendants;\n(11) The Defendants were aware of the requirement.\nLegality of the Notice\n70.\nThe objective of NSL 43 and Sch. 5 is for prevention and investigation of an offence endangering national security. The foundations are:\n(1) honest belief in the truthfulness of the information available at that time;\n(2) the analysis was in\nbona fides\n;\n(3) the Commissioner made his decision according to the information at that time, not in hindsight.\nThe Requirement\n71.\nThe Notice:\n“According to the police investigation, the Commissioner of Police has reasonable grounds to believe that the “Hong Kong Alliance” is a “foreign agent’ specified in Section 1 of Schedule 5. Under Section 3(1) of Schedule 5, as the Commissioner of Police reasonably believes that it is necessary to issue the requirement of this notice for the prevention and investigation of an offence endangering national security, the Commissioner, with the approval of the Secretary for Security, by this notice served on the “Hong Kong Alliance”, requires the “Hong Kong Alliance” to provide the Commissioner with the following information in writing together with relevant supporting documents, within 14 days:\n[1] For the staff members in Hong Kong and the members in Hong Kong since the establishment of the “Hong Kong Alliance”, that is, the following persons:\n[i] directors,\n[ii] standing committee members (and)\n[iii] full-time staff members,\nTheir personal information, including name, date of birth, type and number of the identification document, contact phone number, residential address, position and employment period shall be provided;\n[2] For the activities held in Hong Kong by the “Hong Kong Alliance” from 2014 to present, involving the following organizations or person [regardless of the organizations or person participating in the activities as joint organizers, co-organizers, sponsors or attendees, and including the activities conducted by contracting with the places outside Hong Kong with the use of the communication technology]:\n[i] “New School for Democracy” established in Hong Kong,\n[ii] “China Human Rights Lawyers Concern Group”,\n[iii] political parties outside the territory of the People’s Republic of China or in Taiwan or other organizations outside the territory of the People’s Republic of China or in Taiwan that pursue political ends and/or their branches in Hong Kong, including “Federation for a Democratic China”, “\nAsia Democracy Network\n”, “New School for Democracy”, “The National Endowment for Democracy” and the organizations that receive money from “The National Endowment for Democracy” [including “\nNational Democratic Institute\n”, “\nInternational Republican Institute\n”,\n“\nSolidarity Center\n” and “\nCenter for International Private Enterprise\n”], (and)\n[iv]\nMark Herman SIMON\n[18]\n,\nInformation on the activities concerned, including name, purpose, date, time and place of the activity, details of the person-in-charge, source of fund and breakdown of the expenditure, and all records of contacting the aforesaid organizations or person for organizing, holding, sponsoring or attending the aforesaid activities [including the electronic communication records] shall be provided;\n[3] Minutes of the following meetings that the “Hong Kong Alliance” convened in Hong Kong\nfrom 2014 to present\n[including the meetings with the places outside Hong Kong by communication technology] shall be provided:\n[i] board meetings and standing committee meetings,\n[ii] meetings with political parties outside the territory of the People’s Republic of China or in Taiwan or other organizations outside the territory of the People’s Republic of China or in Taiwan that pursue political ends and/or their branches in Hong Kong [including “Federation for a Democratic China”], (and)\n[iii] meetings with\nMark Herman SIMON\n;\n[4] The assets, revenue, sources of revenue and expenditure of the “Hong Kong Alliance” in Hong Kong\nfrom 2014 to present\nshall be provided, that is;\n[i] details of account(s) directly or indirectly held with the local bank(s) currently or previously, including the account number, the account holder and/or the ultimate beneficial owner,\n[ii] details of the assets like the property, vehicle(s), stock(s), etc., in Hong Kong directly or indirectly held currently or previously,\n[iii] all transactions and money dealing, including reason, purpose, date, amount, the bank account and the account book(s) involved, with “New School for Democracy” [whether it was established in Taiwan or Hong Kong or other places]; “China Human Rights Lawyers Concern Group”; “Federation for a Democratic China”; “\nAsia Democracy Network\n”; “The National Endowment for Democracy”; and the organizations that receive money from “The National Endowment for Democracy” [including “\nNational Democratic Institute\n”,\nInternational Republican Institute\n”, “\nSolidarity Center\n” and “\nCenter for International Private Enterprise\n”];\nMark Herman SIMON\n; and political parties outside the territory of the People’s Republic of China or in Taiwan or other organizations outside the territory of the People’s Republic of China or in Taiwan that pursue political ends and/or their branches in Hong Kong, (and)\n[iv] reason and purpose of CHOW Hang-tung, the vice-chairperson of the “Hong Kong Alliance”, receiving some HK$3,000 from “\nAsia Democracy Network\n” on 4\nth\nFebruary 2021 shall be provided.”\nThe Challenges\n72.\nIn\nLeung Kwok Hung\n[19]\n, the Court of Appeal held:\n“182. Thus, the proportional analysis has to be applied on two different levels:\n(1) examining the systemic proportionality by reference to the legislation or rules in question:\n(2) examining the operational proportionality by reference to the actual implementation or enforcement of the relevant rule on the facts and specific circumstances of a case at the operational level.\n183. In these appeals, it should be emphasized that we are only concerned with the first level of challenges. It remains for the court to assess the proportionality on the second level on the facts and circumstances in a particular case if a charge is brought against person.”\nSystemic\n73.\nNSL 43 confers on the law enforcement authorities, including the police, certain power:\n“When handling cases concerning offence endangering national security, the department for safeguarding national security of the Police Force of the Hong Kong Special Administrative Region may take measures that law enforcement authorities, including the Hong Kong Police Force, are allowed to apply under the laws in force in the Hong Kong Special Administrative Region in investigating serious crimes, and may also take the following measures:”\n……………….\n“… (5) requiring a political organisation of a foreign country or outside the mainland, Hong Kong, and Macao of the People’s Republic of China, or an agent of authorities or a political organisation of a foreign country or outside the mainland, Hong Kong, and Macao of the People’s Republic of China, to provide information;”\nThe National Security Law\n74.\nIn\nHKSAR v Lai Chee Ying\n[20]\nCourt of Final Appeal held:\n“37. In our view, in the light of Ng Ka Ling v Director of Immigration (No 2), the legislative acts of the NPC and NPCSC leading to the promulgation of the NSL as a law of the HKSAR, done in accordance with the provisions of the Basic Law and the procedure therein, are not subject to review on the basis of any alleged incompatibility as between the NSL and the Basic law or the ICCPR as applied to Hong Kong.”\n75.\nIn the light of the above context; NSL is not the subject of any challenges.\nThe Implementation Rules\n76.\nUnder NSL 43:\n“… The Chief Executive shall be authorized, in conjunction with the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region, to make relevant implementation rules for the purpose of applying the measures under the first paragraph of this Article.”\n77.\nNSL 13 stipulates the composition of the Committee for Safeguarding National Security be:\n“The Chief Executive shall be the chairperson of the Committee for Safeguarding National security of the Hong Kong Special Administrative Region. The other members of the Committee shall be the Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice, the Secretary for Security, the Commissioner of Police, the head of the department for safeguarding national security of the Hong Kong Police Force established under Article 16 of this Law, the Director of Immigration, the commissioner of Customs and Excise, and the Director of the Chief Executive’s Office.\nA secretariat headed by a secretary-General shall be established under the Committee. The Secretary-General shall be appointed by the Central People’s Government upon nomination by the Chief Executive.”\n78.\nUnder NSL 14:\n“The duties and functions of the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region shall be:\n…………………\n(2) advancing the development of the legal system and enforcement mechanisms of the Region for safeguarding national security; and\n…………………\nNo institution, organization or individual in the Region shall interfere with the work of the Committee. Information relating to the work of the Committee shall not be subject to disclosure. Decisions made by the Committee shall not be amenable to judicial review.”\n79.\nJudicial review is not a term of art; it must be construed accordingly to ordinary language together with the purpose of promulgation. The only logical understanding is the Committee’s decisions not be amenable to any judicial proceeding or decision.\n80.\nAlso in the light of the above contexts, the Implementation Rules, are not the subject of any challenge.\nOperational\n81.\nNSL 42 and Sch. 5 confer on the Police the power to issue the Notice with consequential penalty in case of non-compliance. At the same time it is expected the Police will exercise the executive power properly. Although the charge is failure to comply with the Notice, the essence of the trial is basically on the legitimacy of the Notice as the recipients contended they were not obliged to answer the purported Notice. (\nab initio\n).\n82.\nBeing a foreign agent is not an offence, the impugned provision is the non-compliance of the Notice. Owing to that special feature in this case, the legality of the Notice requires some studies.\n83.\nThe application of operational proportionality analysis must be taken in full picture and done objectively.\n“Reasonable grounds to believe” it to be a foreign agent\n84.\nThe IR already set out in Sch. 1 and Sch. 7 the mandatory standard of the threshold for identification of the target\n[21]\nor recipient\n[22]\n, but none is provided in Sch. 5, the Commissioner adopted the threshold of “reasonable grounds to believe”.\n85.\nI have the following observations:\n(a) To identify the foreign agent is the initial step to the measure;\n(b) When multiple organizations, people and interactions were involved; some even overseas. Adopting a stringent standard of identification would be unrealistic;\n(c) Information obtained at the early stage would normally be in loose pieces;\n(d) Ensuring effectiveness is essential\n[23]\n;\n(e) National security is of cardinal importance;\n(f) There is no existing mechanism for registration nor is there any existing list of foreign agents;\n(g) The overall difficulties in the entire situations.\n86.\nUnlike Sch. 1 or Sch. 7 which requires strict judicial scrutiny, the application of Sch. 5 is comparatively less rigid and a slightly lower threshold is to be expected. “Reasonable grounds to believe” is not in itself a low standard but, just slightly lower than “reasonable grounds for suspecting”; with which there is still a series of hurdles to overcome in the balancing exercise.\n87.\nHaving regard to the nature, purpose, necessities and to strike a balance between the measures and the rights concerned; the decision to adopt the threshold of “reasonable grounds to believe” can hardly be criticized.\n88.\nWith their backgrounds, political aims, activities and nexus with both locals and non-locals throughout the years, suffice to say is that “… the Commissioner of Police has reasonable grounds to believe that the ‘Hong Kong Alliance’ is a foreign agent’…”\n[24]\nwas the correct approach.\nThe material times\n89.\nThe material time relevant to legality is the point of time when the Commissioner made his decision, not in hindsight. Any subsequent information, no matter how significant it was, was irrelevant as the legitimacy had already been frozen at that point of time.\nReasonable belief as to necessity\n90.\nAll measures taken for prevention and investigation on national security must be executed in a solemn way, and thoroughly, and with the highest standard of professionalism. A professional investigation body will definitely have its own judgement and strategy to act on the needs raising in different circumstance. Exploration and analysis of information is the usual course of exercise. Divergence in the deployed tactics\nper se\ncannot be criticised as unreasonable and rejected unless it is found to be obviously absurd.\n91.\nTo evaluate reasonableness of needs, one must not derail the purpose of NSL, the IR and the reality.\n92.\nForeign agent is a new concept in Hong Kong without any legal precedent. Being an agent\nper se\nis not an offence and there is no existing mechanism for registration, everything has to start from zero. Some agents are even hidden, so a comprehensive searching and screening exercise is necessary.\n93.\nHKA was set up in 1989 and had been carrying out non-stop political activities mainly circulating around the June 4 incident throughout the years. Most of their activities were nexus of interactions with local and non-local organizations and people. Inevitably a comprehensive list of directors and full-time staff would be required from the outset to ascertain the background of the organization. Retrieving their personal information for the purpose of identification was essential to the exercise.\n94.\nInformation of recent years that needed to be ascertained included from the minutes, their interactions, affiliations, and also the monetary flows with some named specified subjects and entities. HKA’s full list of assets was also essential for the ascertaining of its backgrounds and functions.\n95.\nSince HKA had been running actively with various entities and people aboard, it is necessary to explore their dealings, connections, monetary flows and asset in order to find out their affiliation and ultimate purpose.\n96.\nSuch requirement for information was nothing like a broad-brush fishing exercise but rather was constrained in terms of periods of time and nature. The police had taken an abstemious and self-restrained approach.\nUse of wordings\n97.\n“Information” is a term with wide coverage of meanings, which includes all sort of facts or details about a situation, person and event.\n98.\nAccording to the Notice:\n“To provide the Commissioner with the following information in writing, together with relevant supporting documents, …”\n99.\nUnder the interpretation section of the\nPersonal Data (Privacy) Ordinance\n[25]\nstates:\n“data（資料）means any representation of information (including an expression of opinion) in any document, and includes a personal identifier,”\n100.\n“in writing” is the means of transmission of information, “supporting documents” is additional information requiring for the purpose of verification/corroboration. Personal data is a type of information contains personal details.\n101.\n“Investigation” is a broad description of the exercise, including to retrieve information and verification of its correctness.\n102.\nThe enabling law require the information is NSL 42(5):\n“requiring a … to provide information;”\nSuffice it to say that NSL 42(5) embraces Sch. 5\ns3\n(1) and the\nPersonal Data (Privacy) Ordinance\n. I cannot see the information required is anything would go beyond the perimeter of NSL 42(5) and Sch. 5.\nRetrospective\n103.\nIn the present case, there are two aspects to explore:\n(1) At the date of the offence;\n(2) The calling for information of events took place before the promulgation of NSL.\n104.\nThe present charge is non-compliance of the Notice served on 25 August 2021; there is no room for argument on retrospective issue.\n105.\nIt has been suggested that some of the information required was dated before the promulgation of NSL and some even back to 1989 when it was a time of a different regime.\n106.\nThe concept of national security is not just limited to an outbreak at a particular point of time but instead is, as can usually be found in most of cases, a continuation of series of acts with accumulative and generative aim to an ultimate end, be it a part of the adventure under the same or another different regime. In this case, the claim for retrospective limitation is invalid.\nAlternatives\n107.\nSch. 5 is intended for prevention and investigation. Hence no matter the information required was obtained by direct approach or indirect research from their yearbooks and pamphlets. The more direct must be better; at least to minimize the risk of delay and omission.\n108.\nIt would be unrealistic to expect the Police first to obtain a full collection of yearbooks and pamphlets, then approach the target under investigation for its assistance in verification as to correctness and completeness at its discretion.\n109.\nSch. 1 confers on Magistrate the power upon application, to issue search warrant to enter (to use reasonable force if necessary), to search, examine, seize and can detain anyone found therein until the conclusion of the search.\n110.\nSch. 7 is about an ex-parte application by the Secretary for Justice to a judge of the Court of First Instance for a Production Order. The maximum penalty is one year imprisonment and a fine of $100,000, which is double the imprisonment in Sch. 5, upon violation.\n111.\nFrom the above information, suffice to say the Sch. 5 measure is the mildest of all.\nUlterior motive\n112.\nAlthough the police had initiated another proceedings against HKA, striking off HKA from the Companies Registry is under a different mechanism and criteria. Any omission from mentioning foreign agent is nothing odd or skeptical which should lead to any reasonable doubt on the genuineness of the Sch. 5 measure taken before me nor was there any ulterior motive behind.\n113.\nI am satisfied Superintendent Hung held an honest belief in the truthfulness of the investigation information and he acted\nbona fide\non his analysis.\nOppression\n114.\nThe assessment of oppression is not merely on theoretical concept; it must be practical by looking into the whole picture, including the capabilities, resources and the conduct of the recipient.\n115.\nThe requirement of large amount of information, some even aged, within 14 days, sounded tough on the face of it, but there are some additional features of this case:\n(1) A liaison contact point was provided in the Notice, which could form a channel for some constructive and potential relief if necessary;\n(2) The high-profile press conference and the open letter, was a clear message of total refusal;\n(3) That letter clearly stated that the refusal was due to some legal issues involved, which shows the recipients had considered all the information required;\n(4) None of the required information was provided in the end.\n116.\nI have the following observations:\n(1) Most of the information required was not that aged, only back from 2014;\n(2) Some of the information required is actually the information that needs to be maintained. Examples are:\n(i) accounting records and the supporting documents for years for spot check by the Inland Revenue;\n(ii) the tax return and the provident fund documents with personal details of all the employees;\n(3) D1 offered an explanation to the Court about the details of some of the requested information which was supposed could have been given to the Police at that time. From what can be seen, it was not that difficult to retrieve the required information;\n(4) No constructive actual attempt had been made for any retrieval, not even on the easy ones.\n117.\nBased on the above, it is difficult to justify the significance of hardship was in any sense compromised when the Defendants had provided none, not even some were not that hard to be accessed. There is no room for any claims of oppression.\nBalancing\n118.\nNational security is cardinal importance to public interest and the whole nation. For prevention and investigation, information is the core of the measure; any obstruction would defeat the whole process.\n119.\nFrom the facts before me, the requirement was in an abstemious and restrained manner, all confined to reasonable necessary.\n120.\nGiven the close nexus, interactions amongst HKA and the others who shared common objectives and the monetary flows. I am satisfied all the required information is necessary for the prevention and investigation of an offence endangering national security.\n121.\nTaken an objective, panoramic and complete evaluation of all evidence before me, I am satisfied an overall fair balance had been achieved.\nIssuing the Notice\n122.\nAlthough the Commissioner only had the recommendations\n[26]\nfrom Superintendent Hung, it was a refinement of the investigation report\n[27]\nin simple and direct terms put in context from one professional to his superior, focusing on the issues for the Commissioner’s decision.\n123.\nThe Commissioner endorsed the recommendations without query or seeking clarification was a sign of his satisfaction to the sufficiency of information which enable him to make his professional decision.\n124.\nThere is no material faulty on the Commissioner’s decision.\nConclusion\n125.\nIn this case, the legality of the Notice is strictly related to the time when it was served; therefore the Court’s consideration is confined to that material moment.\n126.\nD1’s subsequent explanation with details in Court on some of the events, monetary transactions and nexus which is part and parcel of the information required; which should have been provided before the deadline, not in hindsight.\n127.\nI am satisfied the Notice was sound and legal at the time when it was served. There is no grounds to exercise my discretion to reject it.\n128.\nI rule the Notice was legal and the recipients were obliged to provide the information required.\nThe Open letter\n129.\nHKA submitted an open letter co-signed by D1, D2, D5 and others to Commissioner of Police:\n“ An Open Letter from the Hong Kong Alliance in Reply to the Commissioner of Police\nRegarding the letter dated 25\nth\nAugust 2021 to the Hong Kong Alliance from the Commissioner of Police [hereinafter referred to as ‘the Letter’] in accordance with Schedule 5 of the Implementation Rules for Article 43 of the National Security Law [hereinafter referred to as Schedule 5], the Alliance would like to make the following responses:\n1. The Alliance is not a ‘foreign agent’. Therefore, the Commissioner of Police has no power to request the provision of information from the Alliance under Schedule 5.\n2. The Commissioner of Police made an error of law by mistakenly assuming that as long as he ‘had reasonable grounds to believe’ that the Alliance was a ‘foreign agent’ specified in Section 1 of Schedule 5, he could make a request for the provision of information in accordance with Schedule 5. Schedule 5 is application only if the organization is in fact a foreign agent. Merely ‘having reasonable grounds to believe’ does not suffice.\n3. The Commissioner of Police failed to provide any justification to explain:\n(1) On what reasonable ground did (he) believe that the Alliance was a ‘foreign agent’?\n(2) Why did (he) reasonably believe the issuance of the Letter was necessary for the prevention and investigation of an offence endangering national security?\n(3) The nature of the offence endangering national security to be investigated and how it was related to the required information;\nIt is a violation of the rules of natural justice.\nIn summary, the Alliance is of the view that there is no legal basis for the issuance of the Letter. Therefore, we will not provide any information as requested in the Letter.”\n130.\nThere is clear evidence of no intention to provide the required information whatsoever.\nStatutory defence\n131.\nUnder Sch. 5 s3 (3)(b):\n“unless the office-bearer or person establishes to the satisfaction of the court that the office-bearer or person has exercised due diligence and that the office-bearer or person has failed to comply with the notice for reasons beyond the office-bearer’s or person’s controls.”\n132.\nIn the present case, nothing of the above was done to support such. They took no actual steps to retrieve the required information. Instead they merely held discussions among themselves.\nThe Verdict\n133.\nThe conclusion is:\n(1) the Notice was legal when it was served on D1, D2 and D5 respectively;\n(2) the Defendants were obliged to answer;\n(3) the Defendants’ non-compliances was unjustified.\n134.\nI am satisfied beyond reasonable doubt the prosecution has established their case on every aspect.\n135.\nI thereby convict D1, D2 and D5 accordingly.\n(Peter Law)\nPrincipal Magistrate\nMr Anthony Chau, DDPP (Ag.), Mr Ivan Cheung, ADPP (Ag.) and Ms Karen Ng, SPP of the Department of Justice, for the HKSAR\nD1 appeared in person\nMr Esmond Wong, instructed by Messrs L & W Lawyers, for D2\nMr Philip Dykes SC leading Mr Albert Wong, instructed by Messrs Kenneth Lam, Solicitors, for D5\n[1]\nContrary to section 3(3)(b) of Schedule 5 to the\nImplementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region\n(Instrument A406A).\n[2]\n香港市民支援愛國民主運動聯合會\n[3]\nBOR 11\n[4]\nBOR 10\n[5]\nBOR 18\n[6]\nBOR 14 and\nPersonal Data (Privacy) Ordinance\n,\nCap. 486\n[7]\nExhibit P19(1), also attachment [1]\n[8]\nExhibit P20(1), also attachment [2]\n[9]\n[2020] HKCA 196\n[10]\nExhibit P19(1)\n[11]\nExhibit P20(1)\n[12]\nExhibit MFI 3, also attachment [3]\n[13]\nThe identity of Org 4 is subject to PII and redacted. D1 presents her case on her own analysis.\n[14]\nExhibit P19(1)\n[15]\nExhibit P20(1)\n[16]\nExhibit P19(1)\n[17]\nExhibit P20(1)\n[18]\nAccording to the information accessed, Mark Herman SIMON is the personal assistant to LAI Chee-ying.\n[19]\nLeung Kwok Hung v Secretary for Justice (No 2)\n[2020] 2 HKLRD 771\n[20]\n[2021] HKCFA 3\n[21]\nSch. 1 IR 2(2) “A magistrate may issue a authorizing a police officer with such assistants as may be necessary to enter and search any place if the magistrate is satisfied by information on oath that there is reasonable ground for suspecting that any specified evidence is in the place.”\n[22]\nSch. 7 IR 2(4)(b) “where the application relates to a particular person – that there are reasonable grounds for suspecting that the person has information, or is in possession of material, likely to be relevant to the investigation;”\n[23]\nNSL 3\n[24]\nThe Notice\n[25]\ns2\nof\nCap. 486\n[26]\nExhibit P20(1)\n[27]\nExhibit P19(1)", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2021/WKCC003633_2021.doc", + "file_name": "WKCC003633_2021.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkoat/2007_HKOAT_1/OATD000030_2006.txt b/en_cases_hkoat/2007_HKOAT_1/OATD000030_2006.txt new file mode 100644 index 0000000..a03ce9b --- /dev/null +++ b/en_cases_hkoat/2007_HKOAT_1/OATD000030_2006.txt @@ -0,0 +1,100 @@ +OATD30/2006 +OATD31/2006 + + +Control of Obscene and Indecent Articles Ordinance Cap. 390 – Obscene Articles Tribunal – Part V jurisdiction – Determination – Section 10 Guidance – Publishers' intention – Use of previous classified publications – Reference or comparison prohibited – No distinction between classification and determination – Articles indecent. + + + +IN THE OBSCENE ARTICLES TRIBUNAL OF THE +HONG KONG SPECIAL ADMINISTRATIVE REGION +Transcript of the audio recording in the case of +Determination under Section 29(5) of Cap. 390, before the Tribunal +___________________ + +___________________________ + +Before: Mr W LEUNG Esq, Presiding Magistrate in OAT Tribunal + Ms LAM Koon-kun and + Mr TSE Wun-shuen, Edward, Adjudicators + +Date of Hearing : 20 September 2007 + + +___________________ +J U D G M E N T +___________________________ + + + + + + + + + + + + +Court: + +These are the reasons for determination. This tribunal is exercising its jurisdiction under part V of the Control of Obscene and Indecent Articles Ordinance, Cap. 390. + +Two articles are referred to this tribunal for determination under section 29. One article was published on page C21 of the Oriental Daily, to be called the Oriental article; and the other was published on page C54 of the Sun, to be called the Sun article, both of 2 December 2005. These referrals arose from two summonses issued by the Commissioner for Television and Entertainment Licensing Authority, called the TELA, against the publishers of the two articles. They are the Oriental Daily Publisher Limited and The Sun News Publisher Limited respectively. + +Miss Agnes Chan, senior government counsel, appears for TELA; and Mr Cheng Huan, senior counsel, leading Mr Paul Leung, appears for both publishers. No admission that both articles are indecent is made. Miss Agnes Chan agrees that only indecency is in issue. + +Mr Cheng calls three editors responsible for these two articles to give evidence - one from the Oriental Daily and two from the Sun. Their evidence will be dealt with later in the appropriate contexts. + +Regarding the source of the photographs, they confirm that they came from the Starpix, an international pictures seller. There was a series of photographs of model, Kelly Brook, and her actor boyfriend, Billy Zane, holidaying on the French West Indies Island of St. Barthelemy, and they chose photographs from this series. + +Both articles carry one main photograph of Kelly Brook and Billy Zane standing next to each other. They appeared to be on the beach and standing in the water of ankle deep. Billy Zane was only wearing a pair of knee-length shorts. Kelly Brook was wearing only her bikini without the bra top. It was a frontal view photograph showing the breasts of Kelly Brook, as appeared in the photographs, of significant size. Both nipples and aureoles were obscured by small oblique squares. + +The Oriental article occupies one-third of the page and the main photograph occupies half of the space of the article. There is one other small photograph about this holiday. The Sun article occupies half of the page and the main photograph occupies two-thirds of the space of the article. It also carries another photograph of 4R size showing the couple embracing and kissing while floating in the water. Both articles carry titles emphasising the naked breasts. There are the main texts and also captions to the photographs. I must point out here that the adjudicators and I would consider each article separately and in its entirety. + +This tribunal is to determine whether the two articles are indecent or not indecent according to the guidance under section 10, and I would use the compendious words for convenience to stand for the requirements of the relevant subsections as follows: +(i) moral standards; +(ii) dominant effect; +(iii) readership; +(iv) honest purpose. + +One more guidance should be added, which is the most important of all. It is the definition under section 2B, which states that a thing is indecent if by reason of indecency it is not suitable to be published to a juvenile; and a juvenile means a person under the age of 18 years. Therefore five matters have to be considered. + +I should also state here that these five matters will be set out separately later for clarity and convenience. But they will be considered jointly and severally and in such orders and combinations as common sense and logic may dictate. + +This is part of a criminal proceeding and all the relevant considerations will apply. In particular, the burden of proof is on the prosecution and the standard is beyond reasonable doubt. Before we begin with the determination according to the guidance, I should deal with some arguments and legal points raised. + +First, Mr Cheng submits that the intentions of the publishers are important, if not critical. The editors are called to say that they had been very careful in choosing the photographs. I find this evidence neither here nor there. We are only concerned with the final product, not the care with which the final product is produced. I hold that apart from the matter of honest purpose, the intentions of the publishers or editors are irrelevant. Otherwise, the indecency would be decided by the publishers or editors and the functions of the OAT will be made nugatory. + +Secondly, previous materials classified as non-indecent are produced. Mr Cheng argues that we should look at them for reference to ascertain the general moral standards. Attractive these arguments may sound, I am bound by authority. In the Court of First Instance and when the judicial review of this case was heard in relation to classification, Lam J held that this course, which included comparison, should be prohibited. + +Mr Cheng argues that the authority should be distinguished because it was made in relation to classification. I find that, apart from the criminal and civil standards of proof, there is only a difference without a distinction. I hold that on the principle of what is sauce for the goose is sauce for the gander, the prohibition should apply to both classification and determination. I therefore exclude such evidence which includes the Now Magazine and the Apple Daily’s picture. Even if comparison were allowed, I would find that the materials were so different to be beyond comparison. + +Thirdly, Mr Cheng points out that the prevalent policy of newspapers is more pictorial and less verbose, and the slightly coarse Cantonese expressions merely enhance the entertainment value of the article. I should say here that we have no prejudice against such policy or practice if they are within bounds in the present context of this hearing. + +I now come to the five matters and begin with the dominant effect. + +First: dominant effect. We find that the photographs were given prominent effect by virtue of the size in the article and on the page of the newspaper as a whole. The editors explain that they chose the photographs with care in order not to appear to be indecent. Judging from the original photograph, I find that this could not be true. The original photograph shows the couple in the middle of the photograph with large area showing the beach and the water. In the two articles, the bodies of the couple are shown on their own without any background and therefore given prominent effect. We also find there are many gratuitous portrayals of Kelly Brook on what they call ‘lustrous body and huge breasts’, and on the enjoyment of Billy Zane in relation to this body. + +Secondly: readership. It is agreed fact and I should take judicial notice that the Oriental Daily and the Sun each commands a very wide readership. They could reach public at large of all ages. This wider readership could give a boost to any small harmful effect. + +Thirdly: honest purpose. The three editors give evidence on this matter. Mr Cheng summarises it to this effect that, I quote: + +“The texts essentially describe the holiday activities and the intimate demeanour of the celebrity couple while they were in the Caribbean.” + +Mr Cheng also argues that the original intention was simply to publish a piece of light-hearted entertainment news which is capable of giving readers a good laugh. It might be for fun and attraction, but we find that it was overdone. + +Fourthly: moral standards. To avoid doubt, we wish to state that we are using the standards of moralities, decency and propriety that are generally accepted by reasonable members of the community. We find that it is indecent to expose the naked body of a woman and her breasts, despite the obscuring of the nipples in such fashion as adopted by the two articles. The body and breasts are given a large and prominent position, and the effect is further enhanced by the vivid language of the younger generation used to describe them. + +Fifthly and lastly: suitability for juvenile. We find that the two articles show titillating and seductive photographs of a half-naked body of a model of international fame, to be accompanied by gratuitous portrayals of her body and her breasts. This has a glorifying effect on the naked body of a woman, and on this basis, there is a message that her boyfriend is being envied for his company of such a naked woman and enjoyment of such an occasion. On these findings, we are satisfied beyond reasonable doubt that the two articles are not suitable to be published to a juvenile and are indecent. + +Lastly, we wish to emphasise that the above determinations are reached separately on the two articles which, we notice, have as many similarities as dissimilarities. However, the principles, reasons and conclusions are the same for them. + +These are our determinations. For the Oriental article: indecent; the Sun article: indecent. + + + +Miss Agnes CHAN, SGC, for the Television and Entertainment Licensing Authority + +Mr CHENG Huan and Mr Paul LEUNG, instructed by Messrs Iu, Lai & Li, for the defendants + diff --git a/en_cases_hkoat/2007_HKOAT_1/case.json b/en_cases_hkoat/2007_HKOAT_1/case.json new file mode 100644 index 0000000..f040b1f --- /dev/null +++ b/en_cases_hkoat/2007_HKOAT_1/case.json @@ -0,0 +1,26 @@ +{ + "Date": "20 Sep, 2007", + "Action No.": "OATD30/2006", + "Neutral Cit.": "[2007] HKOAT 1", + "case_title": "COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING AUTHORITY V. ORIENTAL DAILY PUBLISHER LTD", + "page_title": "COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING AUTHORITY V. ORIENTAL DAILY PUBLISHER LTD | [2007] HKOAT 1 | HKLII", + "case_history": [ + { + "name": "OATD30/2006", + "link": "https://www.hklii.hk/en/appealhistory/OATD/2006/30" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkoat/2007/1", + "neutral_cit": "[2007] HKOAT 1", + "court_code": "HKOAT", + "content": "OATD30/2006\nOATD30/2006\nOATD31/2006\nControl of Obscene and Indecent Articles \n Ordinance\nCap. 390\n– Obscene Articles Tribunal – Part V jurisdiction – \n Determination – Section 10 Guidance – Publishers' intention – Use of \n previous classified publications – Reference or comparison prohibited – No \n distinction between classification and determination – Articles indecent.\nIN THE OBSCENE ARTICLES TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nTranscript of the audio recording in the case of\nDetermination under\nSection 29\n(5) of\nCap. 390\n, before the Tribunal\n______________________\nCOMMISSIONER FOR\nTELEVISION AND ENTERTAINMENT LICENSING AUTHORITY\nComplainant\nversus\nOATD30/2006 (ESS12681/2006)\nORIENTAL DAILY PUBLISHER LIMITED\nDefendant\nOATD31/2006 (ESS12812/2006)\nTHE SUN NEWS PUBLISHER LIMITED\nDefendant\n___________________________\nBefore :\nMr W LEUNG Esq, Presiding Magistrate in OAT Tribunal\nMs LAM Koon-kun and Mr Tse Wun-shuen, Edward, Adjudicators\nDate of Hearing : 20 September 2007\n____________________\nJ U D G M E N T\n____________________\nCourt:\n1.\nThese are the reasons for determination. This tribunal is exercising its jurisdiction under part V of the\nControl of Obscene and Indecent Articles Ordinance\n,\nCap. 390\n.\n2.\nTwo articles are referred to this tribunal for determination under section 29. One article was published on page C21 of the Oriental Daily, to be called the Oriental article; and the other was published on page C54 of the Sun, to be called the Sun article, both of 2 December 2005. These referrals arose from two summonses issued by the Commissioner for Television and Entertainment Licensing Authority, called the TELA, against the publishers of the two articles. They are the Oriental Daily Publisher Limited and The Sun News Publisher Limited respectively.\n3.\nMiss Agnes Chan, senior government counsel, appears for TELA; and Mr Cheng Huan, senior counsel, leading Mr Paul Leung, appears for both publishers. No admission that both articles are indecent is made. Miss Agnes Chan agrees that only indecency is in issue.\n4.\nMr Cheng calls three editors responsible for these two articles to give evidence - one from the Oriental Daily and two from the Sun. Their evidence will be dealt with later in the appropriate contexts.\n5.\nRegarding the source of the photographs, they confirm that they came from the Starpix, an international pictures seller. There was a series of photographs of model, Kelly Brook, and her actor boyfriend, Billy Zane, holidaying on the French West Indies Island of St. Barthelemy, and they chose photographs from this series.\n6.\nBoth articles carry one main photograph of Kelly Brook and Billy Zane standing next to each other. They appeared to be on the beach and standing in the water of ankle deep. Billy Zane was only wearing a pair of knee-length shorts. Kelly Brook was wearing only her bikini without the bra top. It was a frontal view photograph showing the breasts of Kelly Brook, as appeared in the photographs, of significant size. Both nipples and aureoles were obscured by small oblique squares.\n7.\nThe Oriental article occupies one-third of the page and the main photograph occupies half of the space of the article. There is one other small photograph about this holiday. The Sun article occupies half of the page and the main photograph occupies two-thirds of the space of the article. It also carries another photograph of 4R size showing the couple embracing and kissing while floating in the water. Both articles carry titles emphasising the naked breasts. There are the main texts and also captions to the photographs. I must point out here that the adjudicators and I would consider each article separately and in its entirety.\n8.\nThis tribunal is to determine whether the two articles are indecent or not indecent according to the guidance under section 10, and I would use the compendious words for convenience to stand for the requirements of the relevant subsections as follows:\n(i)\nmoral standards;\n(ii)\ndominant effect;\n(iii)\nreadership;\n(iv)\nhonest purpose.\n9.\nOne more guidance should be added, which is the most important of all. It is the definition under section 2B, which states that a thing is indecent if by reason of indecency it is not suitable to be published to a juvenile; and a juvenile means a person under the age of 18 years. Therefore five matters have to be considered.\n10.\nI should also state here that these five matters will be set out separately later for clarity and convenience. But they will be considered jointly and severally and in such orders and combinations as common sense and logic may dictate.\n11.\nThis is part of a criminal proceeding and all the relevant considerations will apply. In particular, the burden of proof is on the prosecution and the standard is beyond reasonable doubt. Before we begin with the determination according to the guidance, I should deal with some arguments and legal points raised.\n12.\nFirst, Mr Cheng submits that the intentions of the publishers are important, if not critical. The editors are called to say that they had been very careful in choosing the photographs. I find this evidence neither here nor there. We are only concerned with the final product, not the care with which the final product is produced. I hold that apart from the matter of honest purpose, the intentions of the publishers or editors are irrelevant. Otherwise, the indecency would be decided by the publishers or editors and the functions of the OAT will be made nugatory.\n13.\nSecondly, previous materials classified as non-indecent are produced. Mr Cheng argues that we should look at them for reference to ascertain the general moral standards. Attractive these arguments may sound, I am bound by authority. In the Court of First Instance and when the judicial review of this case was heard in relation to classification, Lam J held that this course, which included comparison, should be prohibited.\n14.\nMr Cheng argues that the authority should be distinguished because it was made in relation to classification. I find that, apart from the criminal and civil standards of proof, there is only a difference without a distinction. I hold that on the principle of what is sauce for the goose is sauce for the gander, the prohibition should apply to both classification and determination. I therefore exclude such evidence which includes the Now Magazine and the Apple Daily’s picture. Even if comparison were allowed, I would find that the materials were so different to be beyond comparison.\n15.\nThirdly, Mr Cheng points out that the prevalent policy of newspapers is more pictorial and less verbose, and the slightly coarse Cantonese expressions merely enhance the entertainment value of the article. I should say here that we have no prejudice against such policy or practice if they are within bounds in the present context of this hearing.\n16.\nI now come to the five matters and begin with the dominant effect.\n17.\nFirst: dominant effect. We find that the photographs were given prominent effect by virtue of the size in the article and on the page of the newspaper as a whole. The editors explain that they chose the photographs with care in order not to appear to be indecent. Judging from the original photograph, I find that this could not be true. The original photograph shows the couple in the middle of the photograph with large area showing the beach and the water. In the two articles, the bodies of the couple are shown on their own without any background and therefore given prominent effect. We also find there are many gratuitous portrayals of Kelly Brook on what they call ‘lustrous body and huge breasts’, and on the enjoyment of Billy Zane in relation to this body.\n18.\nSecondly: readership. It is agreed fact and I should take judicial notice that the Oriental Daily and the Sun each commands a very wide readership. They could reach public at large of all ages. This wider readership could give a boost to any small harmful effect.\n19.\nThirdly: honest purpose. The three editors give evidence on this matter. Mr Cheng summarises it to this effect that, I quote:\n“\nThe texts essentially describe the holiday activities and the intimate demeanour of the celebrity couple while they were in the Caribbean.”\nMr Cheng also argues that the original intention was simply to publish a piece of light-hearted entertainment news which is capable of giving readers a good laugh. It might be for fun and attraction, but we find that it was overdone.\n20.\nFourthly: moral standards. To avoid doubt, we wish to state that we are using the standards of moralities, decency and propriety that are generally accepted by reasonable members of the community. We find that it is indecent to expose the naked body of a woman and her breasts, despite the obscuring of the nipples in such fashion as adopted by the two articles. The body and breasts are given a large and prominent position, and the effect is further enhanced by the vivid language of the younger generation used to describe them.\n21.\nFifthly and lastly: suitability for juvenile. We find that the two articles show titillating and seductive photographs of a half-naked body of a model of international fame, to be accompanied by gratuitous portrayals of her body and her breasts. This has a glorifying effect on the naked body of a woman, and on this basis, there is a message that her boyfriend is being envied for his company of such a naked woman and enjoyment of such an occasion. On these findings, we are satisfied beyond reasonable doubt that the two articles are not suitable to be published to a juvenile and are indecent.\n22.\nLastly, we wish to emphasise that the above determinations are reached separately on the two articles which, we notice, have as many similarities as dissimilarities. However, the principles, reasons and conclusions are the same for them.\n23.\nThese are our determinations. For the Oriental article: indecent; the Sun article: indecent.\nRepresentation:\nMiss Agnes CHAN, SGC, for the Television and Entertainment Licensing Authority\nMr CHENG Huan and Mr Paul LEUNG, instructed by Messrs Iu, Lai & Li, for the defendants", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2006/OATD000030_2006.doc", + "file_name": "OATD000030_2006.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hkoat/2007_HKOAT_2/case.json b/en_cases_hkoat/2007_HKOAT_2/case.json new file mode 100644 index 0000000..32af00e --- /dev/null +++ b/en_cases_hkoat/2007_HKOAT_2/case.json @@ -0,0 +1,26 @@ +{ + "Date": "20 Sep, 2007", + "Action No.": "OATD31/2006", + "Neutral Cit.": "[2007] HKOAT 2", + "case_title": "COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING AUTHORITY V. THE SUN NEWS PUBLISHER LTD", + "page_title": "COMMISSIONER FOR TELEVISION AND ENTERTAINMENT LICENSING AUTHORITY V. THE SUN NEWS PUBLISHER LTD | [2007] HKOAT 2 | HKLII", + "case_history": [ + { + "name": "OATD31/2006", + "link": "https://www.hklii.hk/en/appealhistory/OATD/2006/31" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/en/cases/hkoat/2007/2", + "neutral_cit": "[2007] HKOAT 2", + "court_code": "HKOAT", + "content": "OATD30/2006\nOATD30/2006\nOATD31/2006\nControl of Obscene and Indecent Articles \n Ordinance\nCap. 390\n– Obscene Articles Tribunal – Part V jurisdiction – \n Determination – Section 10 Guidance – Publishers' intention – Use of \n previous classified publications – Reference or comparison prohibited – No \n distinction between classification and determination – Articles indecent.\nIN THE OBSCENE ARTICLES TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nTranscript of the audio recording in the case of\nDetermination under\nSection 29\n(5) of\nCap. 390\n, before the Tribunal\n______________________\nCOMMISSIONER FOR\nTELEVISION AND ENTERTAINMENT LICENSING AUTHORITY\nComplainant\nversus\nOATD30/2006 (ESS12681/2006)\nORIENTAL DAILY PUBLISHER LIMITED\nDefendant\nOATD31/2006 (ESS12812/2006)\nTHE SUN NEWS PUBLISHER LIMITED\nDefendant\n___________________________\nBefore :\nMr W LEUNG Esq, Presiding Magistrate in OAT Tribunal\nMs LAM Koon-kun and Mr Tse Wun-shuen, Edward, Adjudicators\nDate of Hearing : 20 September 2007\n____________________\nJ U D G M E N T\n____________________\nCourt:\n1.\nThese are the reasons for determination. This tribunal is exercising its jurisdiction under part V of the\nControl of Obscene and Indecent Articles Ordinance\n,\nCap. 390\n.\n2.\nTwo articles are referred to this tribunal for determination under section 29. One article was published on page C21 of the Oriental Daily, to be called the Oriental article; and the other was published on page C54 of the Sun, to be called the Sun article, both of 2 December 2005. These referrals arose from two summonses issued by the Commissioner for Television and Entertainment Licensing Authority, called the TELA, against the publishers of the two articles. They are the Oriental Daily Publisher Limited and The Sun News Publisher Limited respectively.\n3.\nMiss Agnes Chan, senior government counsel, appears for TELA; and Mr Cheng Huan, senior counsel, leading Mr Paul Leung, appears for both publishers. No admission that both articles are indecent is made. Miss Agnes Chan agrees that only indecency is in issue.\n4.\nMr Cheng calls three editors responsible for these two articles to give evidence - one from the Oriental Daily and two from the Sun. Their evidence will be dealt with later in the appropriate contexts.\n5.\nRegarding the source of the photographs, they confirm that they came from the Starpix, an international pictures seller. There was a series of photographs of model, Kelly Brook, and her actor boyfriend, Billy Zane, holidaying on the French West Indies Island of St. Barthelemy, and they chose photographs from this series.\n6.\nBoth articles carry one main photograph of Kelly Brook and Billy Zane standing next to each other. They appeared to be on the beach and standing in the water of ankle deep. Billy Zane was only wearing a pair of knee-length shorts. Kelly Brook was wearing only her bikini without the bra top. It was a frontal view photograph showing the breasts of Kelly Brook, as appeared in the photographs, of significant size. Both nipples and aureoles were obscured by small oblique squares.\n7.\nThe Oriental article occupies one-third of the page and the main photograph occupies half of the space of the article. There is one other small photograph about this holiday. The Sun article occupies half of the page and the main photograph occupies two-thirds of the space of the article. It also carries another photograph of 4R size showing the couple embracing and kissing while floating in the water. Both articles carry titles emphasising the naked breasts. There are the main texts and also captions to the photographs. I must point out here that the adjudicators and I would consider each article separately and in its entirety.\n8.\nThis tribunal is to determine whether the two articles are indecent or not indecent according to the guidance under section 10, and I would use the compendious words for convenience to stand for the requirements of the relevant subsections as follows:\n(i)\nmoral standards;\n(ii)\ndominant effect;\n(iii)\nreadership;\n(iv)\nhonest purpose.\n9.\nOne more guidance should be added, which is the most important of all. It is the definition under section 2B, which states that a thing is indecent if by reason of indecency it is not suitable to be published to a juvenile; and a juvenile means a person under the age of 18 years. Therefore five matters have to be considered.\n10.\nI should also state here that these five matters will be set out separately later for clarity and convenience. But they will be considered jointly and severally and in such orders and combinations as common sense and logic may dictate.\n11.\nThis is part of a criminal proceeding and all the relevant considerations will apply. In particular, the burden of proof is on the prosecution and the standard is beyond reasonable doubt. Before we begin with the determination according to the guidance, I should deal with some arguments and legal points raised.\n12.\nFirst, Mr Cheng submits that the intentions of the publishers are important, if not critical. The editors are called to say that they had been very careful in choosing the photographs. I find this evidence neither here nor there. We are only concerned with the final product, not the care with which the final product is produced. I hold that apart from the matter of honest purpose, the intentions of the publishers or editors are irrelevant. Otherwise, the indecency would be decided by the publishers or editors and the functions of the OAT will be made nugatory.\n13.\nSecondly, previous materials classified as non-indecent are produced. Mr Cheng argues that we should look at them for reference to ascertain the general moral standards. Attractive these arguments may sound, I am bound by authority. In the Court of First Instance and when the judicial review of this case was heard in relation to classification, Lam J held that this course, which included comparison, should be prohibited.\n14.\nMr Cheng argues that the authority should be distinguished because it was made in relation to classification. I find that, apart from the criminal and civil standards of proof, there is only a difference without a distinction. I hold that on the principle of what is sauce for the goose is sauce for the gander, the prohibition should apply to both classification and determination. I therefore exclude such evidence which includes the Now Magazine and the Apple Daily’s picture. Even if comparison were allowed, I would find that the materials were so different to be beyond comparison.\n15.\nThirdly, Mr Cheng points out that the prevalent policy of newspapers is more pictorial and less verbose, and the slightly coarse Cantonese expressions merely enhance the entertainment value of the article. I should say here that we have no prejudice against such policy or practice if they are within bounds in the present context of this hearing.\n16.\nI now come to the five matters and begin with the dominant effect.\n17.\nFirst: dominant effect. We find that the photographs were given prominent effect by virtue of the size in the article and on the page of the newspaper as a whole. The editors explain that they chose the photographs with care in order not to appear to be indecent. Judging from the original photograph, I find that this could not be true. The original photograph shows the couple in the middle of the photograph with large area showing the beach and the water. In the two articles, the bodies of the couple are shown on their own without any background and therefore given prominent effect. We also find there are many gratuitous portrayals of Kelly Brook on what they call ‘lustrous body and huge breasts’, and on the enjoyment of Billy Zane in relation to this body.\n18.\nSecondly: readership. It is agreed fact and I should take judicial notice that the Oriental Daily and the Sun each commands a very wide readership. They could reach public at large of all ages. This wider readership could give a boost to any small harmful effect.\n19.\nThirdly: honest purpose. The three editors give evidence on this matter. Mr Cheng summarises it to this effect that, I quote:\n“\nThe texts essentially describe the holiday activities and the intimate demeanour of the celebrity couple while they were in the Caribbean.”\nMr Cheng also argues that the original intention was simply to publish a piece of light-hearted entertainment news which is capable of giving readers a good laugh. It might be for fun and attraction, but we find that it was overdone.\n20.\nFourthly: moral standards. To avoid doubt, we wish to state that we are using the standards of moralities, decency and propriety that are generally accepted by reasonable members of the community. We find that it is indecent to expose the naked body of a woman and her breasts, despite the obscuring of the nipples in such fashion as adopted by the two articles. The body and breasts are given a large and prominent position, and the effect is further enhanced by the vivid language of the younger generation used to describe them.\n21.\nFifthly and lastly: suitability for juvenile. We find that the two articles show titillating and seductive photographs of a half-naked body of a model of international fame, to be accompanied by gratuitous portrayals of her body and her breasts. This has a glorifying effect on the naked body of a woman, and on this basis, there is a message that her boyfriend is being envied for his company of such a naked woman and enjoyment of such an occasion. On these findings, we are satisfied beyond reasonable doubt that the two articles are not suitable to be published to a juvenile and are indecent.\n22.\nLastly, we wish to emphasise that the above determinations are reached separately on the two articles which, we notice, have as many similarities as dissimilarities. However, the principles, reasons and conclusions are the same for them.\n23.\nThese are our determinations. For the Oriental article: indecent; the Sun article: indecent.\nRepresentation:\nMiss Agnes CHAN, SGC, for the Television and Entertainment Licensing Authority\nMr CHENG Huan and Mr Paul LEUNG, instructed by Messrs Iu, Lai & Li, for the defendants", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2006/OATD000030_2006.doc", + "file_name": "OATD000030_2006.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/en_cases_hksct/crawl_index.json b/en_cases_hksct/crawl_index.json new file mode 100644 index 0000000..49a5a49 --- /dev/null +++ b/en_cases_hksct/crawl_index.json @@ -0,0 +1,18 @@ +{ + "metadata": { + "court_code": "HKSCT", + "lang": "en", + "total_from_page": 0, + "total_collected": 0, + "status_stats": { + "pending": 0, + "success": 0, + "failed": 0, + "partial": 0, + "skip": 0 + }, + "collected_at": "2026-04-16T10:12:24.943522", + "last_updated": "2026-04-16T10:12:24.943746" + }, + "records": [] +} \ No newline at end of file diff --git a/zh_cases_hkca/2002_HKCA_1116/case.json b/zh_cases_hkca/2002_HKCA_1116/case.json new file mode 100644 index 0000000..4f215a3 --- /dev/null +++ b/zh_cases_hkca/2002_HKCA_1116/case.json @@ -0,0 +1,26 @@ +{ + "Date": "10 Jun, 2002", + "Action No.": "CACV2548/2001", + "Neutral Cit.": "[2002] HKCA 1116", + "case_title": "林育麟 訴 入境事務處處長", + "page_title": "林育麟 訴 入境事務處處長 | [2002] HKCA 1116 | HKLII", + "case_history": [ + { + "name": "CACV2548/2001", + "link": "https://www.hklii.hk/tc/appealhistory/CACV/2001/2548" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkca/2002/1116", + "neutral_cit": "[2002] HKCA 1116", + "court_code": "HKCA", + "content": "CACV002548/2001 林育麟 訴 入境事務處處長\nCACV002548/2001\nCACV 2548/2001\n香港特別行政區\n高等法院上訴法庭\n民事司法管轄權\n民事上訴\n案件編號：民事上訴案件2001年第2548號\n(原本案件編號 : 高院憲法及行政訴訟2001年第2245號)\n------------------------\n申請人\n林育麟\n對\n答辯人\n入境事務處處長\n------------------------\n主審法官:\n高等法院上訴法庭法官胡國興\n高等法院上訴法庭法官張澤祐\n審理日期：2002 年 5 月 30 日\n頒發判案書日期：2002 年 6 月 10 日\n------------------------\n判案書\n------------------------\n由上訴法庭法官胡國興頒發上訴法庭判案書\n:\n1．\n就申請香港特別行政區居留權(\"居留權\")的問題，1999年1月29日終審法院判決了\n吳嘉玲及其他人士對入境事務處處長\n1\n和\n陳錦雅及其他人士對入境事務處處長\n2\n兩案。在\n吳嘉玲\n案，終審法院裁定《基本法》第24條第2款第(3)項並不受第22條第4款[須以國內機關簽發的單程證(\"單程證\")來港]規限，香港永久性居民（“永久性居民”）在香港以外所生的中國籍子女申請居留權者不須先取得單程證才可獲取居留權。在\n陳錦雅\n案，終審法院裁定永久性居民在香港以外所生的中國籍子女，不論他們是在父母之中最少一人取得永久性居民身分之前或之後出生，均屬《基本法》第24條第2款第(3)項所述的人士，享有居留權。\n2．\n1999年6月26日全國人民代表大會常務委員會對居留權問題作出解釋(\"人大常委會解釋\")，取代了終審法院上述的裁決，該等裁決不再適用。2002年1月10日，終審法院在\n吳小彤及其他人士對入境事務處處長\n3\n一案清楚闡述和解釋了\n吳嘉玲\n和\n陳錦雅\n兩案及人大常委會解釋的關係和效果，對居留權的問題作出了決定性的結論。\n3．\n吳小彤案是終審法院的判決，是對本庭有約束力的案例，人大常委會的解釋對本庭也是有約束力的，本庭必須遵守。根據該案例及該解釋，永久性居民在香港以外所生的中國籍子女，只有符合下列三項其中一項條件的才可獲法庭頒發濟助：\n(1) 申請人在1997年7月1日之前已抵達香港，而且申請人在出生時其父母之中最少一人已經是永久性居民。符合這條件者有權在香港申請或繼續申請獲取居留權，無須領取單程證；或\n(2) [有合法理期望者] 申請人曾收到(a)法律援助署在1998年12月7日至1999年1月29日間發出的有關公函，述明申請人不必參與當時的訴訟程序或展開新訴訟程序，或(b)保安局局長在1998年4月24日發出的有關信件，內容大意是入境事務處會依循法院的判決處理居留權的申請。對於符合這條件者，入境事務處處長應考慮行使\n《入境條例》\n第11條\n、\n第13條\n和\n第19(1)條\n賦予他的酌情決定權，在決定前不把申請人遣送離開香港；或\n(3) [政府寬免政策受惠者] (a)申請人在1997年7月1日至1999年1月29日期間在香港，和(b)在該期間他在香港時向入境事務處提出居留權的聲稱，和(c)入境事務處存有該聲稱的記錄或聲稱由其他政府官員在執行職務時轉交予入境事務處。如果有文件可以明確(i)辨認出申請人是永久性居民的子女；(ii)提供有關申請人的資料，如出生日期和地點；和(iii)要求申請人來香港以便定居或要求給予申請人居留權，入境事務處處長應視之為居留權的聲稱。對於符合條件者，入境事務處處長應按照\n吳嘉玲\n和\n陳錦雅\n兩案的上述裁決考慮申請人的申請。\n4．\n若申請人不能符合以上第3段所述條件的任何一項，申請人就沒有居留權；即使在他出生時其父或其母已經是永久性居民，他必須先向國內機關取得單程證，才可以在香港行使永久性居民的居留權。\n5.\n本案資料顯示，本案申請人於1968年5月9日在國內出生。出生時父母都不是香港永久性居民。本案申請人的情況也不符合上述任何一項的條件。\n6.\n本案申請人的上訴無理據支持。本庭駁回上訴，不作出訟費命令。\n（胡國興）\n(張澤祐)\n高等法院上訴法庭法官\n高等法院上訴法庭法官\n申請人 ： 無律師代表，缺席。\n答辯人 ： 由律政司何展鵬政府律師代表。\n1\n(1999) 2 HKCFAR 4\n(decision of CFA on 29 Jan 1999)\n2\n(1999) 2 HKCFAR 82\n(decision of CFA on 29 Jan 1999)\n3\nNg Siu Tung & others v The Director of Immigration\n, FACV1-3/2001 (10 Jan 2002, unreported)", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2001/CACV002548_2001.doc", + "file_name": "CACV002548_2001.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkca/2002_HKCA_3476/case.json b/zh_cases_hkca/2002_HKCA_3476/case.json new file mode 100644 index 0000000..8202b61 --- /dev/null +++ b/zh_cases_hkca/2002_HKCA_3476/case.json @@ -0,0 +1,26 @@ +{ + "Date": "22 Mar, 2002", + "Action No.": "CACV760/2000", + "Neutral Cit.": "[2002] HKCA 3476", + "case_title": "李杏彬 訴 入境事務處處長", + "page_title": "李杏彬 訴 入境事務處處長 | [2002] HKCA 3476 | HKLII", + "case_history": [ + { + "name": "CACV760/2000", + "link": "https://www.hklii.hk/tc/appealhistory/CACV/2000/760" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkca/2002/3476", + "neutral_cit": "[2002] HKCA 3476", + "court_code": "HKCA", + "content": "CACV000760/2000 李杏彬 訴 入境事務處處長\nCACV000760/2000\nCACV760/2000\n香港特別行政區\n高等法院上訴法庭\n民事司法管轄權\n民事上訴\n案件編號 : 民事上訴案件2000年第760號\n(原本案件編號 : 高院憲法及行政訴訟2000年第474號)\n----------------------\n申請人\n李杏彬\n對\n答辯人\n入境事務處處長\n------------------------\n主審法官:\n高等法院首席法官梁紹中\n高等法院上訴法庭法官胡國興\n高等法院上訴法庭法官張澤祐\n審理日期：2002年3月11日\n頒發判案書日期：2002年3月22日\n------------------------\n判案書\n------------------------\n由上訴法庭法官梁紹中頒發上訴法庭判案書：\n1．\n就申請香港特別行政區居留權(\"居留權\")的問題，1999年1月29日終審法院判決了\n吳嘉玲及其他人士對入境事務處處長\n1\n和\n陳錦雅及其他人士對入境事務處處長\n2\n兩案。在\n吳嘉玲\n案，終審法院裁定《基本法》第24條第2款第(3)項並不受第22條第4款[須以國內機關簽發的單程證(\"單程證\")來港]規限，香港永久性居民（“永久性居民”）在香港以外所生的中國籍子女申請居留權者不須先取得單程證才可獲取居留權。在\n陳錦雅\n案，終審法院裁定永久性居民在香港以外所生的中國籍子女，不論他們是在父母之中最少一人取得永久性居民身分之前或之後出生，均屬《基本法》第24條第2款第(3)項所述的人士，享有居留權。\n2．\n1999年6月26日全國人民代表大會常務委員會對居留權問題作出解釋(\"人大常委會解釋\")，取代了終審法院上述的裁決，該等裁決不再適用。2002年1月10日，終審法院在\n吳小彤及其他人士對入境事務處處長\n3\n一案清楚闡述和解釋了\n吳嘉玲\n和\n陳錦雅\n兩案及人大常委會解釋的關係和效果，對居留權的問題作出了決定性的結論。\n3．\n吳小彤案是終審法院的判決，是對本庭有約束力的案例，人大常委會的解釋對本庭也是有約束力的，本庭必須遵守。根據該案例及該解釋，永久性居民在香港以外所生的中國籍子女，只有符合下列三項其中一項條件的才可獲法庭頒發濟助：\n(1) 申請人在1997年7月1日之前已抵達香港，而且申請人在出生時其父母之中最少一人已經是永久性居民。符合這條件者有權在香港申請或繼續申請獲取居留權，無須領取單程證；或\n(2) [有合法理期望者] 申請人曾收到(a)法律援助署在1998年12月7日至1999年1月29日間發出的有關公函，述明申請人不必參與當時的訴訟程序或展開新訴訟程序，或(b)保安局局長在1998年4月24日發出的有關信件，內容大意是入境事務處會依循法院的判決處理居留權的申請。對於符合這條件者，入境事務處處長應考慮行使\n《入境條例》\n第11條\n、\n第13條\n和\n第19(1)條\n賦予他的酌情決定權，在決定前不把申請人遣送離開香港；或\n(3) [政府寬免政策受惠者] (a)申請人在1997年7月1日至1999年1月29日期間在香港，和(b)在該期間他在香港時向入境事務處提出居留權的聲稱，和(c)入境事務處存有該聲稱的記錄或聲稱由其他政府官員在執行職務時轉交予入境事務處。如果有文件可以明確(i)辨認出申請人是永久性居民的子女；(ii)提供有關申請人的資料，如出生日期和地點；和(iii)要求申請人來香港以便定居或要求給予申請人居留權，入境事務處處長應視之為居留權的聲稱。對於符合條件者，入境事務處處長應按照\n吳嘉玲\n和\n陳錦雅\n兩案的上述裁決考慮申請人的申請。\n4．\n若申請人不能符合以上第3段所述條件的任何一項，申請人就沒有居留權；即使在他出生時其父或其母已經是永久性居民，他必須先向國內機關取得單程證，才可以在香港行使永久性居民的居留權。\n5.\n申請人沒有到庭，本庭在申請人缺席下聆訊本上訴。\n6.\n本案資料顯示，本案申請人於1959年4月2日在國內出生。出生時父母都不是香港永久性居民。本案申請人的情況也不符合上述任何一項的條件。\n7.\n上訴無理據支持。本庭駁回上訴，不作出訟費命令。\n(梁紹中)\n(胡國興)\n(張澤祐)\n高等法院首席法官\n高等法院上訴法庭法官\n高等法院上訴法庭法官\n申請人： 缺席。\n答辯人： 由律政司黃惠沖高級政府律師及何展鵬政府律師代表。\n1\n(1999) 2 HKCFAR 4\n(decision of CFA on 29 Jan 1999)\n2\n(1999) 2 HKCFAR 82\n(decision of CFA on 29 Jan 1999)\n3\nNg Siu Tung & others v The Director of Immigration\n, FACV1-3/2001 (10 Jan 2002, unreported)", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2000/CACV000760_2000.doc", + "file_name": "CACV000760_2000.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkca/2002_HKCA_3796/CACV000939_2001.txt b/zh_cases_hkca/2002_HKCA_3796/CACV000939_2001.txt new file mode 100644 index 0000000..2533f6d --- /dev/null +++ b/zh_cases_hkca/2002_HKCA_3796/CACV000939_2001.txt @@ -0,0 +1,49 @@ +CACV 939/2001 +香港特別行政區 +高等法院上訴法庭 +民事司法管轄權 +民事上訴 +案件編號：民事上訴案件2001年第939號 +(原本案件編號 : 高院憲法及行政訴訟2000年第2138號) +------------------------ +申請人 蔡輝揚 + 對 +答辯人 入境事務處處長 +------------------------ + +主審法官 : 高等法院上訴法庭法官胡國興 + 高等法院原訟法庭法官朱芬齡 +審理日期 ：2002年5月7日 +頒發判案書日期 ：2002年5月21日 +------------------------ +判案書 +------------------------ +由上訴法庭法官胡國興頒發上訴法庭判案書： +1． 就申請香港特別行政區居留權(“居留權”)的問題，1999年1月29日終審法院判決了吳嘉玲及其他人士對入境事務處處長和陳錦雅及其他人士對入境事務處處長兩案。在吳嘉玲案，終審法院裁定《基本法》第24條第2款第(3)項並不受第22條第4款[須以國內機關簽發的單程證(“單程證”)來港]規限，香港永久性居民（“永久性居民”）在香港以外所生的中國籍子女申請居留權者不須先取得單程證才可獲取居留權。在陳錦雅案，終審法院裁定永久性居民在香港以外所生的中國籍子女，不論他們是在父母之中最少一人取得永久性居民身分之前或之後出生，均屬《基本法》第24條第2款第(3)項所述的人士，享有居留權。 + +2． 1999年6月26日全國人民代表大會常務委員會對居留權問題作出解釋(“人大常委會解釋”)，取代了終審法院上述的裁決，該等裁決不再適用。2002年1月10日，終審法院在吳小彤及其他人士對入境事務處處長 一案清楚闡述和解釋了吳嘉玲和陳錦雅兩案及人大常委會解釋的關係和效果，對居留權的問題作出了決定性的結論。 + +3． 吳小彤案是終審法院的判決，是對本庭有約束力的案例，人大常委會的解釋對本庭也是有約束力的，本庭必須遵守。根據該案例及該解釋，永久性居民在香港以外所生的中國籍子女，只有符合下列三項其中一項條件的才可獲法庭頒發濟助： + +(1) 申請人在1997年7月1日之前已抵達香港，而且申請人在出生時其父母之中最少一人已經是永久性居民。符合這條件者有權在香港申請或繼續申請獲取居留權，無須領取單程證；或 + +(2) [有合法理期望者] 申請人曾收到(a)法律援助署在1998年12月7日至1999年1月29日間發出的有關公函，述明申請人不必參與當時的訴訟程序或展開新訴訟程序，或(b)保安局局長在1998年4月24日發出的有關信件，內容大意是入境事務處會依循法院的判決處理居留權的申請。對於符合這條件者，入境事務處處長應考慮行使《入境條例》第11條、第13條和第19(1)條賦予他的酌情決定權，在決定前不把申請人遣送離開香港；或 + +(3) [政府寬免政策受惠者] (a)申請人在1997年7月1日至1999年1月29日期間在香港，和(b)在該期間他在香港時向入境事務處提出居留權的聲稱，和(c)入境事務處存有該聲稱的記錄或聲稱由其他香港政府官員在執行職務時轉交予入境事務處。如果有文件可以明確(i)辨認出申請人是永久性居民的子女；(ii)提供有關申請人的資料，如出生日期和地點；和(iii)要求申請人來香港以便定居或要求給予申請人居留權，入境事務處處長應視之為居留權的聲稱。對於符合條件者，入境事務處處長應按照吳嘉玲和陳錦雅兩案的上述裁決考慮申請人的申請。 + + +4． 若申請人不能符合以上第3段所述條件的任何一項，申請人就沒有居留權；即使在他出生時其父或其母已經是永久性居民，他必須先向國內機關取得單程證，才可以在香港行使永久性居民的居留權。 + +5. 本案資料顯示，本案申請人於1955年1月2日在國內出生。出生時父母都不是香港永久性居民。本案申請人的情況也不符合上述任何一項的條件。 + +6. 本案申請人的上訴無理據支持。本庭駁回上訴，不作出訟費命令。 + + + + + + + + +申請人 ： 無律師代表，缺席。 +答辯人 ： 由律政司何展鵬政府律師代表。 \ No newline at end of file diff --git a/zh_cases_hkca/2002_HKCA_3796/case.json b/zh_cases_hkca/2002_HKCA_3796/case.json new file mode 100644 index 0000000..7e52475 --- /dev/null +++ b/zh_cases_hkca/2002_HKCA_3796/case.json @@ -0,0 +1,26 @@ +{ + "Date": "21 May, 2002", + "Action No.": "CACV939/2001", + "Neutral Cit.": "[2002] HKCA 3796", + "case_title": "蔡輝揚 訴 入境事務處處長", + "page_title": "蔡輝揚 訴 入境事務處處長 | [2002] HKCA 3796 | HKLII", + "case_history": [ + { + "name": "CACV939/2001", + "link": "https://www.hklii.hk/tc/appealhistory/CACV/2001/939" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkca/2002/3796", + "neutral_cit": "[2002] HKCA 3796", + "court_code": "HKCA", + "content": "CACV000939/2001 蔡輝揚 訴 入境事務處處長\nCACV000939/2001\nCACV 939/2001\n香港特別行政區\n高等法院上訴法庭\n民事司法管轄權\n民事上訴\n案件編號：民事上訴案件2001年第939號\n(原本案件編號 : 高院憲法及行政訴訟2000年第2138號)\n------------------------\n申請人\n蔡輝揚\n對\n答辯人\n入境事務處處長\n------------------------\n主審法官:\n高等法院上訴法庭法官胡國興\n高等法院原訟法庭法官朱芬齡\n審理日期：2002 年 5 月 7 日\n頒發判案書日期：2002 年 5 月 21 日\n------------------------\n判案書\n------------------------\n由上訴法庭法官胡國興頒發上訴法庭判案書\n:\n1．\n就申請香港特別行政區居留權(\"居留權\")的問題，1999年1月29日終審法院判決了\n吳嘉玲及其他人士對入境事務處處長\n1\n和\n陳錦雅及其他人士對入境事務處處長\n2\n兩案。在\n吳嘉玲\n案，終審法院裁定《基本法》第24條第2款第(3)項並不受第22條第4款[須以國內機關簽發的單程證(\"單程證\")來港]規限，香港永久性居民（“永久性居民”）在香港以外所生的中國籍子女申請居留權者不須先取得單程證才可獲取居留權。在\n陳錦雅\n案，終審法院裁定永久性居民在香港以外所生的中國籍子女，不論他們是在父母之中最少一人取得永久性居民身分之前或之後出生，均屬《基本法》第24條第2款第(3)項所述的人士，享有居留權。\n2．\n1999年6月26日全國人民代表大會常務委員會對居留權問題作出解釋(\"人大常委會解釋\")，取代了終審法院上述的裁決，該等裁決不再適用。2002年1月10日，終審法院在\n吳小彤及其他人士對入境事務處處長\n3\n一案清楚闡述和解釋了\n吳嘉玲\n和\n陳錦雅\n兩案及人大常委會解釋的關係和效果，對居留權的問題作出了決定性的結論。\n3．\n吳小彤案是終審法院的判決，是對本庭有約束力的案例，人大常委會的解釋對本庭也是有約束力的，本庭必須遵守。根據該案例及該解釋，永久性居民在香港以外所生的中國籍子女，只有符合下列三項其中一項條件的才可獲法庭頒發濟助：\n(1) 申請人在1997年7月1日之前已抵達香港，而且申請人在出生時其父母之中最少一人已經是永久性居民。符合這條件者有權在香港申請或繼續申請獲取居留權，無須領取單程證；或\n(2) [有合法理期望者] 申請人曾收到(a)法律援助署在1998年12月7日至1999年1月29日間發出的有關公函，述明申請人不必參與當時的訴訟程序或展開新訴訟程序，或(b)保安局局長在1998年4月24日發出的有關信件，內容大意是入境事務處會依循法院的判決處理居留權的申請。對於符合這條件者，入境事務處處長應考慮行使\n《入境條例》\n第11條\n、\n第13條\n和\n第19(1)條\n賦予他的酌情決定權，在決定前不把申請人遣送離開香港；或\n(3) [政府寬免政策受惠者] (a)申請人在1997年7月1日至1999年1月29日期間在香港，和(b)在該期間他在香港時向入境事務處提出居留權的聲稱，和(c)入境事務處存有該聲稱的記錄或聲稱由其他政府官員在執行職務時轉交予入境事務處。如果有文件可以明確(i)辨認出申請人是永久性居民的子女；(ii)提供有關申請人的資料，如出生日期和地點；和(iii)要求申請人來香港以便定居或要求給予申請人居留權，入境事務處處長應視之為居留權的聲稱。對於符合條件者，入境事務處處長應按照\n吳嘉玲\n和\n陳錦雅\n兩案的上述裁決考慮申請人的申請。\n4．\n若申請人不能符合以上第3段所述條件的任何一項，申請人就沒有居留權；即使在他出生時其父或其母已經是永久性居民，他必須先向國內機關取得單程證，才可以在香港行使永久性居民的居留權。\n5.\n本案資料顯示，本案申請人於1955年1月2日在國內出生。出生時父母都不是香港永久性居民。本案申請人的情況也不符合上述任何一項的條件。\n6.\n本案申請人的上訴無理據支持。本庭駁回上訴，不作出訟費命令。\n（胡國興）\n(朱芬齡)\n高等法院上訴法庭法官\n高等法院原訟法庭法官\n申請人 ： 無律師代表，缺席。\n答辯人 ： 由律政司何展鵬政府律師代表。\n1\n(1999) 2 HKCFAR 4\n(decision of CFA on 29 Jan 1999)\n2\n(1999) 2 HKCFAR 82\n(decision of CFA on 29 Jan 1999)\n3\nNg Siu Tung & others v The Director of Immigration\n, FACV1-3/2001 (10 Jan 2002, unreported)", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2001/CACV000939_2001.doc", + "file_name": "CACV000939_2001.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkca/2013_HKCA_383/CACC000477A_2012_abp_fallback.txt b/zh_cases_hkca/2013_HKCA_383/CACC000477A_2012_abp_fallback.txt new file mode 100644 index 0000000..75493e3 --- /dev/null +++ b/zh_cases_hkca/2013_HKCA_383/CACC000477A_2012_abp_fallback.txt @@ -0,0 +1,9 @@ +CACC 477/2012 香港特別行政區 高等法院上訴法庭 刑事司法管轄權 判刑上訴申請 刑事上訴案件2012年第477號 （原區域法院刑事案件2012年第676號）    答辯人 香港特別行政區    對   上訴人 許樹榮（HUI SHU WING）        主審法官： 高等法院上訴法庭副庭長楊振權 高等法院原訟法庭法官張慧玲 聆訊日期： 2013年7月26日 判案日期： 2013年7月26日 頒發判案理由書日期： 2013年8月2日 判案理由書    +高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書： 引言 上訴人（許樹榮）被控一項“危險駕駛引致他人死亡”罪，上訴人否認控罪並在區域法院法官郭啟安（原審法官）席前受審。 2012年11月16日，原審法官裁定上訴人罪名成立，並在同日判上訴人入獄3年2個月，停牌5年。原審法官同時下令上訴人在停牌期屆滿之前的三個月，要自費參加及完成“駕駛改進課程”，才能恢復駕駛資格。 上訴人不服定罪及判刑，曾提出上訴許可申請，要求獲准就定罪及判刑上訴。其後，上訴人放棄就定罪的申請，而其就判刑的上訴許可申請則在2013年4月24日獲上訴法庭單一法官批准。因此，本庭只需考慮上訴人就判刑的上訴。代表上訴人的伍家聰大律師的立場是他關注的只是刑期的長短，而非停牌或“駕駛改進課程”令。 經聆訊後，本庭裁定上訴人上訴得直。本庭將上訴人的刑期由3年2個月減為2年6個月，其他判令則不改。以下是本庭的判案理由。 案發經過 2012年1月13日，上訴人駕駛一輛公共巴士在九龍灣德福花園C座對開的斑馬線上撞死了一名89歲的老婦 +（死者）。當時，涉案路段交通繁忙，行人眾多，而斑馬線上不斷有行人橫過馬路。死者從上訴人駕駛的巴士左邊向右邊橫過馬路時，在斑馬線中間位置遭巴士車頭正中間撞倒後捲入車底。死者被送往醫院留醫，但延至兩個月後不治。 上訴人的背景及求情理由 上訴人61歲，已婚及有一名成年女兒。上訴人任職司機30多年，事發前從沒有任何交通違例紀錄，亦沒有任何刑事定罪紀錄。 上訴人的立場是事件是不幸的意外，對他及家人造成極大的影響。上訴人多次向法庭表示他對事件感到十分悔疚，亦表示要向死者及其家人道歉。上訴人強調自己雖然學歷不高，但一直奉公守法，卻因一次意外令他終生遺憾，更影響到他年邁有病的母親及長期患病的妻子。上訴人要求法庭能對他寬大，令他能早日和家人團聚。 原審法官的判刑理由 原審法官的裁決並非是上訴人見到有人沿斑馬線過馬路時，仍不顧一切駛過斑馬線而撞到死者。原審法官的裁決基礎是上訴人沒有留意到是否有人正在等候過斑馬線或是否有人正踏在斑馬線上，而他是在駛過斑馬線時，沒有停車或慢駛並撞到死者。當時死者並非突然衝出，而是徐徐以正常步伐行至斑馬線中間位置。 +原審法官指出涉案罪行的最高判刑是十年監禁，但上訴法庭並沒有訂出判刑指引。原審法官認為涉案罪行可分兩類，一類是被告人持續地去魯莽駕駛；另一類是被告人一時作出錯誤判斷，而前者較後者為嚴重。原審法官沒有表明本案屬前者還是後者，而只指出上訴人的立場是他駕駛的車輛的車身太高，而死者的個子生得矮小，故他不能看見死者過馬路。原審法官認為上訴人理應看到死者，但他卻因見不到她而繼續前行，故撞到死者。 原審法官表示上訴人不應因其駕駛的車輛體積龐大就認為行人必會看見他的車輛而會讓開。原審法官亦認為上訴人應該禮讓斑馬線上的行人，但他卻沒有這樣做，故他的疏忽行為是嚴重的。 原審法官沒有表明在撞到死者前上訴人是否有看見死者在斑馬線上，而只表示上訴人理應看到死者。事實上，死者被撞時已行至斑馬線中間位置，若上訴人有留意斑馬線路面情況，實很難想像他何以見不到死者。 原審法官列出Secretary for Justice v Wong Wai Hung (CAAR 7/2010) 案的案情，並指出該案的判刑應為4年監禁，原因之一是同類案件的判刑須具有阻嚇性。原審法官強調上述Wong Wai Hung案的被告人除了撞死一人外，亦撞傷了另外一名傷者。 +原審法官認為適當的量刑基準為3年6個月監禁，但考慮到上訴人同意了大部分的控方案情，節省法庭時間，再加上上訴人任職司機30多年，而完全沒有任何交通違例紀錄，屬難能可貴，故將刑期扣減多4個月至3年2個月。 上訴理由 伍大律師只提出一項上訴理由。他指事發時，上訴人只是沒有留意斑馬線上行人過路的情況，而非看見死者，但仍莽顧她的安全，強行駛過班馬線。伍大律師認為在上述情況下，原判的判刑過重。 討論 原審法官表示上訴人理應看見死者，卻沒有看見死者，但原審法官沒有說明為何上訴人沒有看見死者。 從其判刑理由書字裏行間，原審法官像是接納在撞倒死者前，上訴人是沒有見到死者在斑馬線上的，而原因是上訴人沒有充分留意路面情況。證據顯示上訴人在意外前沒有減速，更沒有停下。上述事實和上訴人沒有見到死者在斑馬線上的說法相符。 根據原審法官的判刑理由，本庭認為應採取的立場是在案發時，上訴人沒有看見死者在斑馬線上。 假若上訴人能看見斑馬線上有行人橫過馬路，但卻沒有減速，而強行駛過斑馬線以致撞死在斑馬線上過馬路的 +死者，上訴人的罪行會是極為嚴重，原因是他的駕駛行為是罔顧在斑馬線上過馬路的行人之安危。 但本庭認為較合適的處理方法是上訴人在駛過涉案路段時沒有留意或沒有充分留意路面情況，故未能看見死者橫過斑馬線。 上述Wong Wai Hung案的被告人是看見死者和攙扶他的傭人一起以慢速過斑馬線，但他沒有停車，仍以時速約20公里駛過斑馬線，原因是他誤認有足夠時間駛過斑馬線。結果他撞死死者和撞傷傭人。上訴法庭認為在上述情況下，適當的量刑基準是4年。 本庭認為上訴人的罪責較Wong Wai Hung案被告人的罪責為輕。 伍大律師援引的香港特別行政區訴余永勝（CACC33/2012）案的被告人在駛近行人過路處前，已顯著減速。該名被告人沒有衝燈，而只是沒有留意路面情況，故不屬罔顧路人的安全。上訴法庭認為適當的量刑基準為2年9個月。 本庭認為上訴人的罪責較上述余永勝案被告人的罪責為重。雖然兩者都是沒有留意路面情況，但余永勝案的被告人駛過的是由燈控制的行人過路處而非斑馬線，而駛過行人過路處前，更有顯著減速。 +本庭認為上訴人並非罔顧路人的安全，在看見有人過斑馬線而仍然冒險駛過斑馬線。本庭認為以上訴人沒有留意路面情況，故看不見死者過斑馬線而導致意外作為量刑基礎，3年6個月的量刑基準屬明顯過重。本庭認為3年的量刑基準已足夠反映上訴人罪行的嚴重性。 上訴人是一名職業司機，而在30多年的駕駛生涯中完全沒有犯過任何交通規例，實屬難能可貴。原審時上訴人同意大部分控方案情，節省法庭時間。本庭認為上述因素應導致6個月的刑期扣減，而得出2年6個月的判刑。 因此，本庭裁定上訴人的減刑上訴得直，並將其刑期由3年2個月減為2年6個月。 （楊振權） 高等法院上訴法庭副庭長 （張慧玲） 高等法院原訟法庭法官   答辯人：由律政司高級檢控官趙偉天代表。 上訴人：由法律援助署委派大律師伍家聰代表。 + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/zh_cases_hkca/2013_HKCA_383/case.json b/zh_cases_hkca/2013_HKCA_383/case.json new file mode 100644 index 0000000..e2f8383 --- /dev/null +++ b/zh_cases_hkca/2013_HKCA_383/case.json @@ -0,0 +1,26 @@ +{ + "Date": "2 Aug, 2013", + "Action No.": "CACC477/2012", + "Neutral Cit.": "[2013] HKCA 383", + "case_title": "香港特別行政區 訴 許樹榮", + "page_title": "香港特別行政區 訴 許樹榮 | [2013] HKCA 383 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "CACC477/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CACC/2012/477" + } + ], + "case_url": "https://www.hklii.hk/tc/cases/hkca/2013/383", + "neutral_cit": "[2013] HKCA 383", + "court_code": "HKCA", + "content": "CACC477A/2012 香港特別行政區 訴 許樹榮\nCACC 477/2012\n香港特別行政區\n高等法院上訴法庭\n刑事司法管轄權\n判刑上訴申請\n刑事上訴案件2012年第477號\n（原區域法院刑事案件2012年第676號）\n________________________\n答辯人\n香港特別行政區\n對\n上訴人\n許樹榮（hui Shu WING）\n________________________\n主審法官：\n高等法院上訴法庭副庭長楊振權\n高等法院原訟法庭法官張慧玲\n聆訊日期： 2013年7月26日\n判案日期： 2013年7月26日\n頒發判案理由書日期： 2013年8月2日\n判案\n理由\n書\n高等法院上訴法庭副庭長楊振權頒發上訴法庭判案理由書：\n引言\n1.\n上訴人（許樹榮）被控一項“危險駕駛引致他人死亡”罪，上訴人否認控罪並在區域法院法官郭啟安（原審法官）席前受審。\n2.\n2012年11月16日，原審法官裁定上訴人罪名成立，並在同日判上訴人入獄3年2個月，停牌5年。原審法官同時下令上訴人在停牌期屆滿之前的三個月，要自費參加及完成“駕駛改進課程”，才能恢復駕駛資格。\n3.\n上訴人不服定罪及判刑，曾提出上訴許可申請，要求獲准就定罪及判刑上訴。其後，上訴人放棄就定罪的申請，而其就判刑的上訴許可申請則在2013年4月24日獲上訴法庭單一法官批准。因此，本庭只需考慮上訴人就判刑的上訴。代表上訴人的伍家聰大律師的立場是他關注的只是刑期的長短，而非停牌或“駕駛改進課程”令。\n4.\n經聆訊後，本庭裁定上訴人上訴得直。本庭將上訴人的刑期由3年2個月減為2年6個月，其他判令則不改。以下是本庭的判案理由。\n案發經過\n5.\n2012年1月13日，上訴人駕駛一輛公共巴士在九龍灣德福花園C座對開的斑馬線上撞死了一名89歲的老婦（死者）。當時，涉案路段交通繁忙，行人眾多，而斑馬線上不斷有行人橫過馬路。死者從上訴人駕駛的巴士左邊向右邊橫過馬路時，在斑馬線中間位置遭巴士車頭正中間撞倒後捲入車底。死者被送往醫院留醫，但延至兩個月後不治。\n上訴人的背景及求情理由\n6.\n上訴人61歲，已婚及有一名成年女兒。上訴人任職司機30多年，事發前從沒有任何交通違例紀錄，亦沒有任何刑事定罪紀錄。\n7.\n上訴人的立場是事件是不幸的意外，對他及家人造成極大的影響。上訴人多次向法庭表示他對事件感到十分悔疚，亦表示要向死者及其家人道歉。上訴人強調自己雖然學歷不高，但一直奉公守法，卻因一次意外令他終生遺憾，更影響到他年邁有病的母親及長期患病的妻子。上訴人要求法庭能對他寬大，令他能早日和家人團聚。\n原審法官的判刑理由\n8.\n原審法官的裁決並非是上訴人見到有人沿斑馬線過馬路時，仍不顧一切駛過斑馬線而撞到死者。原審法官的裁決基礎是上訴人沒有留意到是否有人正在等候過斑馬線或是否有人正踏在斑馬線上，而他是在駛過斑馬線時，沒有停車或慢駛並撞到死者。當時死者並非突然衝出，而是徐徐以正常步伐行至斑馬線中間位置。\n9.\n原審法官指出涉案罪行的最高判刑是十年監禁，但上訴法庭並沒有訂出判刑指引。原審法官認為涉案罪行可分兩類，一類是被告人持續地去魯莽駕駛；另一類是被告人一時作出錯誤判斷，而前者較後者為嚴重。原審法官沒有表明本案屬前者還是後者，而只指出上訴人的立場是他駕駛的車輛的車身太高，而死者的個子生得矮小，故他不能看見死者過馬路。原審法官認為上訴人理應看到死者，但他卻因見不到她而繼續前行，故撞到死者。\n10.\n原審法官表示上訴人不應因其駕駛的車輛體積龐大就認為行人必會看見他的車輛而會讓開。原審法官亦認為上訴人應該禮讓斑馬線上的行人，但他卻沒有這樣做，故他的疏忽行為是嚴重的。\n11.\n原審法官沒有表明在撞到死者前上訴人是否有看見死者在斑馬線上，而只表示上訴人理應看到死者。事實上，死者被撞時已行至斑馬線中間位置，若上訴人有留意斑馬線路面情況，實很難想像他何以見不到死者。\n12.\n原審法官列出\nSecretary for Justice v Wong Wai Hung\n(CAAR 7/2010) 案的案情，並指出該案的判刑應為4年監禁，原因之一是同類案件的判刑須具有阻嚇性。原審法官強調上述\nWong Wai Hung\n案的被告人除了撞死一人外，亦撞傷了另外一名傷者。\n13.\n原審法官認為適當的量刑基準為3年6個月監禁，但考慮到上訴人同意了大部分的控方案情，節省法庭時間，再加上上訴人任職司機30多年，而完全沒有任何交通違例紀錄，屬難能可貴，故將刑期扣減多4個月至3年2個月。\n上訴理由\n14.\n伍大律師只提出一項上訴理由。他指事發時，上訴人只是沒有留意斑馬線上行人過路的情況，而非看見死者，但仍莽顧她的安全，強行駛過班馬線。伍大律師認為在上述情況下，原判的判刑過重。\n討論\n15.\n原審法官表示上訴人理應看見死者，卻沒有看見死者，但原審法官沒有說明為何上訴人沒有看見死者。\n16.\n從其判刑理由書字裏行間，原審法官像是接納在撞倒死者前，上訴人是沒有見到死者在斑馬線上的，而原因是上訴人沒有充分留意路面情況。證據顯示上訴人在意外前沒有減速，更沒有停下。上述事實和上訴人沒有見到死者在斑馬線上的說法相符。\n17.\n根據原審法官的判刑理由，本庭認為應採取的立場是在案發時，上訴人沒有看見死者在斑馬線上。\n18.\n假若上訴人能看見斑馬線上有行人橫過馬路，但卻沒有減速，而強行駛過斑馬線以致撞死在斑馬線上過馬路的死者，上訴人的罪行會是極為嚴重，原因是他的駕駛行為是罔顧在斑馬線上過馬路的行人之安危。\n19.\n但本庭認為較合適的處理方法是上訴人在駛過涉案路段時沒有留意或沒有充分留意路面情況，故未能看見死者橫過斑馬線。\n20.\n上述\nWong Wai Hung\n案的被告人是看見死者和攙扶他的傭人一起以慢速過斑馬線，但他沒有停車，仍以時速約20公里駛過斑馬線，原因是他誤認有足夠時間駛過斑馬線。結果他撞死死者和撞傷傭人。上訴法庭認為在上述情況下，適當的量刑基準是4年。\n21.\n本庭認為上訴人的罪責較\nWong Wai Hung\n案被告人的罪責為輕。\n22.\n伍大律師援引的\n香港特別行政區訴余永勝\n（CACC33/2012）案的被告人在駛近行人過路處前，已顯著減速。該名被告人沒有衝燈，而只是沒有留意路面情況，故不屬罔顧路人的安全。上訴法庭認為適當的量刑基準為2年9個月。\n23.\n本庭認為上訴人的罪責較上述\n余永勝\n案被告人的罪責為重。雖然兩者都是沒有留意路面情況，但\n余永勝\n案的被告人駛過的是由燈控制的行人過路處而非斑馬線，而駛過行人過路處前，更有顯著減速。\n24.\n本庭認為上訴人並非罔顧路人的安全，在看見有人過斑馬線而仍然冒險駛過斑馬線。本庭認為以上訴人沒有留意路面情況，故看不見死者過斑馬線而導致意外作為量刑基礎，3年6個月的量刑基準屬明顯過重。本庭認為3年的量刑基準已足夠反映上訴人罪行的嚴重性。\n25.\n上訴人是一名職業司機，而在30多年的駕駛生涯中完全沒有犯過任何交通規例，實屬難能可貴。原審時上訴人同意大部分控方案情，節省法庭時間。本庭認為上述因素應導致6個月的刑期扣減，而得出2年6個月的判刑。\n26.\n因此，本庭裁定上訴人的減刑上訴得直，並將其刑期由3年2個月減為2年6個月。\n（楊振權）\n高等法院上訴法庭副庭長\n（張慧玲）\n高等法院原訟法庭法官\n答辯人：由律政司高級檢控官趙偉天代表。\n上訴人：由法律援助署委派大律師伍家聰代表。", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2012/CACC000477A_2012.doc", + "file_name": "CACC000477A_2012.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkca/2020_HKCA_729/CACC000296B_2019.txt b/zh_cases_hkca/2020_HKCA_729/CACC000296B_2019.txt new file mode 100644 index 0000000..74af6cc --- /dev/null +++ b/zh_cases_hkca/2020_HKCA_729/CACC000296B_2019.txt @@ -0,0 +1,46 @@ +CACC 296/2019 +[2020] HKCA 729 + + + + 香港特別行政區 + 高等法院上訴法庭 + 刑事司法管轄權 + 上訴訟費申請 + 刑事上訴案件2019年第296號 + （原區域法院刑事案件2018年第547號） +________________ +答辯人 香港特別行政區 + 對 +上訴人 盧耀國 +________________ +主審法官： 高等法院上訴法庭法官彭偉昌 + 高等法院原訟法庭法官彭寶琴 +上訴人書面陳詞日期： 2020年7月20日 +答辯人書面陳詞日期： 2020年8月3日 +上訴人進一步書面陳詞日期：2020年8月13日 +訟費判決書日期：2020年8月28日 +訟 費 判 決 書 + +高等法院原訟法庭法官彭寶琴頒發上訴法庭訟費判決書： +上訴人於區域法院法官葉佐文席前經審訊後被裁定一項「猥褻侵犯罪」罪名成立，並於2019年9月10日被判處兩年監禁。 +上訴人不服定罪及判刑，提出上訴許可申請。高等法院原訟法庭法官黃崇厚於2020年5月20日審理有關上訴許可申請後，拒絕就定罪上訴發出許可，但批准上訴人的判刑上訴許可；並在同日批准他的保釋申請。 +2020年7月15日，本庭經聆訊後，裁定上訴人的判刑上訴得直，將兩年監禁改為判處讓上訴人可獲即時釋放的刑期。 +上訴人現就以下項目，向本庭提出訟費申請： +就判刑上訴許可申請尋求法律意見的費用； +2020年5月20日就判刑部份提出的上訴許可申請聆訊； +2020年5月20日的等候上訴保釋申請聆訊；及 +2020年7月15日的判刑上訴聆訊。 +同時，上訴人亦希望本庭發出需要兩名大律師處理本案的證明書。 +就上訴人的訟費申請，答辯人明確表示並沒有任何特別理由可提出反對。然而，答辯人向本庭陳詞指針對本案的判刑上訴，理據極其簡單直接，亦沒有牽涉任何複雜的法律詮釋，故認為不需要兩名大律師處理。 +本案的背景及本庭就判刑上訴的判決理由詳見本庭於2020年7月30日頒下的判案理由書，在此不贅。 +上訴人的判刑上訴得直，成功獲得減刑，他應獲得相關的訟費，但本庭經考慮本案的背景、上訴理據及上訴得直的原因後，同意答辯人所指，本案並沒有必要由兩位大律師處理。 +因此，本庭下令，上訴人可獲得上文第4段第（1）至第（4）項的訟費，但訟費當中的大律師費用，只限於由一名大律師代表。假如雙方未能就訟費金額達成協議，則交由聆案官處理。 + + + (彭偉昌) (彭寶琴) + 高等法院上訴法庭法官 高等法院原訟法庭法官 + +答辯人：由律政司高級檢控官潘藹蓮代表 + +上訴人：由林佩琼律師行轉聘李紹強資深大律師及劉日雄大律師代表 \ No newline at end of file diff --git a/zh_cases_hkca/2020_HKCA_729/case.json b/zh_cases_hkca/2020_HKCA_729/case.json new file mode 100644 index 0000000..fc37bfd --- /dev/null +++ b/zh_cases_hkca/2020_HKCA_729/case.json @@ -0,0 +1,26 @@ +{ + "Date": "28 Aug, 2020", + "Action No.": "CACC296/2019", + "Neutral Cit.": "[2020] HKCA 729", + "case_title": "香港特別行政區 訴 盧耀國", + "page_title": "香港特別行政區 訴 盧耀國 | [2020] HKCA 729 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "CACC296/2019", + "link": "https://www.hklii.hk/tc/appealhistory/CACC/2019/296" + } + ], + "case_url": "https://www.hklii.hk/tc/cases/hkca/2020/729", + "neutral_cit": "[2020] HKCA 729", + "court_code": "HKCA", + "content": "CACC296B/2019 香港特別行政區 訴 盧耀國\nCACC 296/2019\n[2020] HKCA 729\n香港特別行政區\n高等法院上訴法庭\n刑事司法管轄權\n上訴訟費申請\n刑事上訴案件2019年第296號\n（原區域法院刑事案件2018年第547號）\n________________________\n答辯人\n香港特別行政區\n對\n上訴人\n盧耀國\n________________________\n主審法官：\n高等法院上訴法庭法官彭偉昌\n高等法院原訟法庭法官彭寶琴\n上訴人書面陳詞日期：\n2020年7月20日\n答辯人書面陳詞日期：\n2020年8月3日\n上訴人進一步書面陳詞日期：\n2020年8月13日\n訟費判決書日期：\n2020年8月28日\n訟 費 判 決 書\n高等法院原訟法庭法官彭寶琴頒發上訴法庭訟費判決書：\n1.\n上訴人於區域法院法官葉佐文席前經審訊後被裁定一項「猥褻侵犯罪」罪名成立，並於2019年9月10日被判處兩年監禁。\n2.\n上訴人不服定罪及判刑，提出上訴許可申請。高等法院原訟法庭法官黃崇厚於2020年5月20日審理有關上訴許可申請後，拒絕就定罪上訴發出許可，但批准上訴人的判刑上訴許可；並在同日批准他的保釋申請\n[1]\n。\n3.\n2020年7月15日，本庭經聆訊後，裁定上訴人的判刑上訴得直，將兩年監禁改為判處讓上訴人可獲即時釋放的刑期。\n4.\n上訴人現就以下項目，向本庭提出訟費申請：\n(1) 就判刑上訴許可申請尋求法律意見的費用；\n(2) 2020年5月20日就判刑部份提出的上訴許可申請聆訊；\n(3) 2020年5月20日的等候上訴保釋申請聆訊；及\n(4) 2020年7月15日的判刑上訴聆訊。\n5.\n同時，上訴人亦希望本庭發出需要兩名大律師處理本案的證明書。\n6.\n就上訴人的訟費申請，答辯人明確表示並沒有任何特別理由可提出反對。然而，答辯人向本庭陳詞指針對本案的判刑上訴，理據極其簡單直接，亦沒有牽涉任何複雜的法律詮釋，故認為不需要兩名大律師處理\n[2]\n。\n7.\n本案的背景及本庭就判刑上訴的判決理由詳見本庭於2020年7月30日頒下的判案理由書\n[3]\n，在此不贅。\n8.\n上訴人的判刑上訴得直，成功獲得減刑，他應獲得相關的訟費，但本庭經考慮本案的背景、上訴理據及上訴得直的原因後，同意答辯人所指，本案並沒有必要由兩位大律師處理。\n9.\n因此，本庭下令，上訴人可獲得上文第4段第（1）至第（4）項的訟費，但訟費當中的大律師費用，只限於由一名大律師代表。假如雙方未能就訟費金額達成協議，則交由聆案官處理。\n(彭偉昌)\n(彭寶琴)\n高等法院上訴法庭法官\n高等法院原訟法庭法官\n答辯人：由律政司高級檢控官潘藹蓮代表\n上訴人：由林佩琼律師行轉聘李紹強資深大律師及劉日雄大律師代表\n[1]\n香港特別行政區及盧耀國\n[2020] HKCA 379\n[2]\n答辯人舉例指出，在下列兩案，上訴法庭亦只是批出一位大律師的訟費申請：\n香港特別行政區對周禮梅\n［2018］HKCA 957及\nHKSAR v Wong Hei-chit\n[2017] 1 HKLRD 928\n，第38段\n[3]\n香港特別行政區對盧耀國\n[2020] HKCA 581", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2019/CACC000296B_2019.doc", + "file_name": "CACC000296B_2019.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkcfa/1999_HKCFA_73/FACV000015Y_1998_abp_fallback.txt b/zh_cases_hkcfa/1999_HKCFA_73/FACV000015Y_1998_abp_fallback.txt new file mode 100644 index 0000000..8cd2236 --- /dev/null +++ b/zh_cases_hkcfa/1999_HKCFA_73/FACV000015Y_1998_abp_fallback.txt @@ -0,0 +1,75 @@ +[Chinese Translation — 中譯本] FACV14/1998 香港特別行政區 終審法院 終院民事上訴1998年第14號 （原本案件編號：高院民事上訴1997年第216號）    上訴人 吳嘉玲 吳丹丹   （兩人皆屬未成年人士， 由父親及起訴監護人吳錫年代表）   對   答辯人 入境事務處處長        FACV15/1998 香港特別行政區 終審法院 終院民事上訴1998年第15號 （原本案件編號：高院民事上訴1997年第217號） +    上訴人 徐權能    對   答辯人 入境事務處處長        FACV16/1998 香港特別行政區 終審法院 終院民事上訴1998年第16號 （原本案件編號：高院民事上訴1997年第203號）    上訴人 入境事務處處長    對   答辯人 張麗華   （屬未成年人士，由父親及 起訴監護人張妙祥代表）       + 主審法官：終審法院首席法官李國能 終審法院常任法官烈顯倫 終審法院常任法官沈澄 終審法院常任法官包致金 終審法院非常任法官梅師賢爵士 聆訊日期：1999年1月6、7、8、11及12日 宣判日期：1999年1月29日 判 決    終審法院首席法官李國能宣讀判詞： 這是本法院作出的一致判決。 一直以來，香港居民與中國其他地區的居民都有家庭聯繫。自從內地實行門戶開放政策後，香港與中國的關係變得息息相關，家庭聯繫更形廣泛密切。1997年7月1 日，在中華人民共和國恢復對香港行使主權時，許多在內地出生的中國公民的父母，至少其中一人是擁有香港居留權的香港永久性居民。 + 在本上訴案中，我等所處理的是他們作為香港永久性居民的身分及在港之居留權問題。有關《基本法》的正確解釋問題亦首次在本法院審理。此等問題對於有關人士的將來，以及憲制法律體系在新制度下的發展極為重要。 有關名稱 為方便起見，我等將會使用以下簡稱：中華人民共和國稱為中國；全國人民代表大會常務委員會稱為“人大常委會”；香港特別行政區稱為特區或香港。 本判決書中提及的“條款”是指《基本法》內的條款。雖然《基本法》的文本並沒有把每條條款內的小段編號，但按照一般做法把小段編號可方便引述。舉例說，第24條第二小段將稱為第24（2）條。 首兩宗上訴案的上訴人及第三宗上訴案的答辯人均為司法覆核程序中的申請人，以下稱為“申請人”。 香港特別行政區入境事務處處長以下稱為“入境處處長”。他是首兩宗上訴案的答辯人，亦是第三宗上訴案的上訴人。 +憲制架構 《中華人民共和國憲法》第31條規定： “ 國家在必要時得設立特別行政區。在特別行政區內實行的制度按照具體情況由全國人民代表大會以法律規定。” 全國人民代表大會是最高國家權力機關，它的常設機關是常務委員會（《中國憲法》第57條）。全國人民代表大會及它的常務委員會行使國家立法權（第58條）。 《中華人民共和國香港特別行政區基本法》乃根據第31條制定，並由全國人民代表大會通過，於1990年4月4日予以公佈。當香港特別行政區於1997年7月1日成立，即中國恢復對香港行使主權時，《基本法》即成為特區的憲法。 《基本法》的序言說明特區是根據第31條成立的： “…並按照“一個國家，兩種制度”的方針，不在香港實行社會主義的制度和政策。國家對香港的基本方針政策，已由中國政府在中英聯合聲明中予以闡明。” 第一章述明總則，載有十一條條文。第1條規定香港特別行政區是中華人民共和國不可分離的部分。第2條規定全國人民代表大會授權香港特別行政區依照《基本法》的規 +定實行高度自治，享有行政管理權、立法權、獨立的司法權和終審權。第5條規定特區不實行“社會主義制度和政策”，保持原有的資本主義制度和生活方式，五十年不變。 中英政府於1984年12月19日簽訂了關於香港問題的《聯合聲明》，以處理恢復行使主權的事宜。《聯合聲明》自1985年5月27日，即互換批准書之日起生效。中國政府於《聯合聲明》第三段宣示其對香港的基本方針政策，並謂這些基本方針政策將在《基本法》加以規定，並維持五十年不變。有關方針政策並於《聯合聲明》附件一加以具體說明。 《基本法》 《基本法》第24（1）條規定，香港特別行政區居民包括永久性居民和非永久性居民。 關於第24（2）條及24（3）條的釋義乃本上訴核心所在。第24（2）條規定，永久性居民為該條文所列出的六個類別的人士，即： “（1）在香港特別行政區成立以前或以後在香港出生的中國公民； （2）在香港特別行政區成立以前或以後在香港通常居住連續七年以上的中國公民； （3）第（1）、（2）兩項所列居民在香港以外所生的中國籍子女； + （4）在香港特別行政區成立以前或以後持有效旅行證件進入香港、在香港通常居住連續七年以上並以香港為永久居住地的非中國籍的人； （5）在香港特別行政區成立以前或以後第（4）項所列居民在香港所生的未滿二十一周歲的子女； （6）第（1）至（5）項所列居民以外在香港特別行政區成立以前只在香港有居留權的人。” 我等需要處理的是第三類別的人士，以下稱為第24（2）條第三類別人士。 第24（3）條規定，永久性居民在香港享有居留權和有資格依照特區法律取得載明其居留權的永久性居民身分證。 第24（4）條規定，非永久性居民為有資格依照特區法律取得香港居民身分證，但沒有居留權的人士。 第三章的標題為“居民的基本權利和義務”，而第24條是該章內的第一條條文。在第24（1）及（2）條界定了永久性和非永久性居民的身分後，第三章就永久性居民的基本權利和義務，包括居留權訂定條文。此等權利和義務體現了憲法對各種自由的保障，而自由乃香港文明社會的要素。值得留意的是，只有永久性居民才可依法享有選舉權和被選舉權（第26條）。 + 第三章第39條是憲法在保障個人權利方面的重要條款。第39（1）條規定：“《公民權利和政治權利國際公約》……適用於香港的有關規定繼續有效，通過香港特別行政區的法律予以實施。”第39（2）條規定，香港居民享有的權利和自由，除依法規定外不得限制，此種限制不得與第39（1）條規定抵觸。 《基本法》第二章的標題為：“中央和香港特別行政區的關係”。第22（4）條規定： “ 中國其他地區的人進入香港特別行政區須辦理批准手續，其中進入香港特別行政區定居的人數由中央人民政府主管部門徵求香港特別行政區政府的意見後確定。” 第八章的標題為：“本法的解釋和修改”。第158條是關於解釋問題，該條文規定： “ 本法的解釋權屬於全國人民代表大會常務委員會。 全國人民代表大會常務委員會授權香港特別行政區法院在審理案件時對本法關於香港特別行政區自治範圍內的條款自行解釋。 香港特別行政區法院在審理案件時對本法的其他條款也可 +解釋。但如香港特別行政區法院在審理案件時需要對本法關於中央人民政府管理的事務或中央和香港特別行政區關係的條款進行解釋，而該條款的解釋又影響到案件的判決，在對該案件作出不可上訴的終局判決前，應由香港特別行政區終審法院請全國人民代表大會常務委員會對有關條款作出解釋。如全國人民代表大會常務委員會作出解釋，香港特別行政區法院在引用該條款時，應以全國人民代表大會常務委員會的解釋為準。但在此以前作出的判決不受影響。 全國人民代表大會常務委員會在對本法進行解釋前，徵詢其所屬的香港特別行政區基本法委員會的意見。” 《聯合聲明》 《基本法》第24條內有關永久性居民的定義乃源自《聯合聲明》附件一第十四部。該附件具體說明中國的基本方針政策。第十四部規定，列於該部內的各類人士有居留權並有資格按照香港法律獲得載明此項權利的永久性居民身分證。關於其後列於《基本法》第24（2）條的首三類人士，第十四部界定為： “在香港特別行政區成立以前或以後在當地出生或通常居住連續七年以上的中國公民及其在香港以外所生的中國籍子女。” 第十四部又包括以下條文： +“ 對中國其他地區的人進入香港特別行政區將按現在實行的辦法管理。” 香港法例 就香港而言，“居留權”一詞是在《聯合聲明》中才初次使用。在《聯合聲明》簽訂後，自1987年起《入境條例》（香港法例第115章）第2A條便載有香港永久性居民所享有的居留權的定義： “具有以下權利 — 在香港入境； 不會被施加任何逗留在香港的條件，而任何向他施加的逗留條件，均屬無效； 不得向他發出遞解離境令；及 不得向他發出遣送離境令。” 附表1列出屬香港永久性居民之各類人士。香港永久性居民可獲發永久性居民身分證，而永久性居民身分證之定義則為：載有“持有人擁有香港居留權”字句的身分證（見《人事登記條例》（香港法例第177章）第1A條）。 +人民入境（修訂）（第2號）條例 在1997年7月1日前，《入境條例》附表1並沒有採用《基本法》第24（2）條所界定的類別來訂明何類人士屬香港永久性居民。1997年7月1日，臨時立法會制定《人民入境（修訂）（第2號）條例》（以下簡稱“第2號條例”），並以新制定的附表1取代舊附表1。新附表1第2段規定： “2. 香港特別行政區永久性居民 任何人如屬以下任何一項，即為香港特別行政區永久性居民 — 在香港特別行政區成立以前或以後在香港出生的中國公民，而在其出生時或其後任何時間，其父親或母親已在香港定居或已享有香港居留權。 在香港特別行政區成立以前或以後通常居於香港連續7年或以上的中國公民。 （a）或（b）項的香港特別行政區永久性居民在香港以外所生的中國籍子女，而在該子女出生時，其父親或母親已享有香港居留權。 … … …” +關於該類憑藉血緣成為永久性居民的人士，“第2號條例”第2（c）段規定其父親或母親在其出生時須已享有香港居留權。有關此項要求是否符合憲法的爭論，本法院將會在另一個上訴案中審理。附表1第1（2）段界定父母與子女的關係如下： “在以下的情況下，視為有父母與子女的關係存在— 任何女子與其婚生或非婚生子女之間的關係，為母親與子女的關係； 任何男子與其婚生子女之間的關係，為父親與子女的關係；如子女屬非婚生子女，只有當該子女其後因父母結婚而獲確立婚生地位，該男子與該子女之間才存在有父親與子女的關係； 只有父親或母親與其在香港根據法院命令領養的子女之間的關係，方為父親或母親與領養子女的關係，而該法院命令是指香港法院根據《領養條例》（第290章）作出的命令。” 由此可見，就非婚生子女而言，上述定義對母親和父親的處理並不一樣。任何女子與其非婚生子女之間，被視為有“父母與子女的關係”存在；然而，任何父親與其非婚生子女之間，則只有當該子女其後因父母結婚而獲確立婚生地位，才被視為有“父母與子女的關係”存在。 +1997年入境（修訂）（第3號）條例 1997年7月10日，臨時立法會制定《入境（修訂）（第3號）條例》（以下簡稱“第3號條例”）。該條例當作自1997年7月1日起實施（第1（2）條），並引進一項計劃處理附表1第2（c）段所指的該類憑藉血緣成為永久性居民的人士。根據此項計劃，任何人依據第2（c）段所獲得的永久性居民的身分，只可藉其持有以下文件確立 — “（a）發予他的有效旅行證件，和同樣是發予他並且附貼於該旅行證件上的有效居留權證明書； （b）發予他的有效特區護照；或 （c） 發予他的有效永久性居民身分證。” （見第2AA（1）條）。任何持有有效的特區護照或有效的永久性居民身分證的人士，其居留權早已確立。誠如前述，有效的永久性居民身分證的定義是載有“持有人擁有香港居留權”字句的身分證。此外，申請領取護照的條件之一是申請人須持有永久性居民身分證（見《香港特別行政區護照條例》（香港法例第539章）第3（2）條）。因此，雖然法例列出了三種文件，然而，只有（a）項是與要求憑藉血緣取得永久性居民身分的人士有關。此類人士只可藉持有有效旅行證件及附貼於該旅行證件上的有效居留權證明書才能確立其身分。以下將簡稱該等文件為“旅行證件”及“居留權證明書”。 +而提述該等文件時應視為提述有效文件。“第3號條例”載有居留權證明書的法定表格，該表格列明： “本證明書持有人在香港特別行政區的居留權已確立。本證明書必須附貼於本證明書持有人的有效旅行證件上，方為有效。” 此段陳述強調居留權證明書本身不能單獨使用，必須附貼於旅行證件方為有效。 第2AA（2）條規定： “ （2） 任何人憑藉其作為附表1第2（c）段所指的香港特別行政區永久性居民而享有的香港居留權，只在按照第（1）款確立了他作為該類永久性居民的身分時方可行使，而據此當其作為該類永久性居民的身分並無如此確立時，他就本條例而言須視作並不享有香港居留權。” 所以，若某人並非持有附貼居留權證明書的旅行證件，則視作並不享有香港居留權。 居留權證明書的申請可向入境處處長提出，並須按處長以憲報公告指明的方式提出（見第2AB（1）及（2）條）。第2AB（4）條明確規定此類公告不是附屬法例。此條文的作用是使該公告不須受立法局根據《釋義及通則條例》（香港法例第1章）第34條所提出的修訂所限制。若申請人能提出處長所指明的證明，令處長信納申請人屬附表1第2（c）段所指的永久性居民，則處長須發出證明書（第2AB（6） +條）。若處長不信納申請人屬附表1第2（c）段所指的永久性居民，則須拒絕該申請，並將理由通知申請人，以及告知申請人向入境事務審裁處上訴的權利。 第2AD條是關於上訴的問題。審裁處須“就其所裁斷的事實”裁定上訴人是否屬附表1第2（c）段所指的憑藉血緣成為永久性居民的人士。審裁處作出的決定為最終決定。除非經過審裁處作出決定，以及在審裁處作出決定之前，任何人不得申請司法覆核（第2AE條）。 申請人不得在他留在香港的任何時間內提出上訴（第2AD（3）條）。若入境處處長已向他發出遣送離境令，他不得以其享有居留權為理由，就該命令向審裁處上訴。為了強化上述計劃：即他只可藉持有附貼居留權證明書的旅行證件確立其身分，“第3號條例”引入第53D（3）條，該條文規定，除非上訴人的身分已按照第2AA（1）條所訂明的方式確立，否則審裁處不得以上訴人憑藉附表1第2（c）段所指的身分而享有居留權為理由，就該遣送離境令的上訴判上訴人得直。 “第3號條例”訂立了一些新的刑事罪行，包括為報酬而申請居留權證明書、為取得證明書作出虛假陳述、偽造證明書、使用及管有偽造的或經改動的證明書等罪行。然而，追溯條文並不適用於新的罪行，這些罪行只在立例後才生效。 +公告 該份於1997年7月16日在憲報刊登、日期為1997年7月11日的公告（以下稱為“該公告”），公佈入境處處長已訂立列於“該公告”內之條文。關於在申請居留權證明書時居住在中國內地的人士，“該公告”指明其申請必須“通過當地的公安廳出入境管理處提出”（甲（i）段）。此外，“該公告”又述明，上述人士根據中國內地現行法律向公安廳出入境管理處所遞交的到香港定居的‘前往港澳通行證’申請書，可視為居留權證明書的申請書（見乙段）。就申請居留權證明書而言，在以下情況下，任何人士如在緊接進入香港境內之前通常居於內地，則被視為在其逗留在香港的期間是居住在內地：（i）若他未獲准許而在香港入境，後又未獲入境處處長授權的情況下在香港逗留，或（ii）同樣，若他獲准許在香港入境，並在如此入境後受逗留條件所規限（丙段）。“該公告”（丁段）又列明申請書須載有何類陳述和資料。若申請人居住在中國以外地方，其申請則須通過當地中國大使館或領事館或以郵遞方式向入境處處長提出，而若居住在台灣或澳門，則規定以郵遞方式提出（甲（ii）及（iii）段）。 “該公告”提及與申請出境通行證有關的內地法律。內地法律有管制措施規管中國公民往來香港。現行的內地法律是於1985年11月22日公佈的《公民出境入境管理法》第17條，以及於1986年12月25日公布的《中國公民因私事往來香港地區或者澳門地區的暫行管理辦法》。中國公民出 +境須取得出境批准。公安廳出入境管理處是負責發出通行證之機關。一般所指的單程證是為前來定居人士而發，而單程證的簽發受定額制度規限。《暫行管理辦法》第5條規定： “ 內地公民因私事前往香港、澳門定居，實行定額審批的辦法，以利於維護和保持香港和澳門的經濟繁榮和社會穩定。” 一般所指的雙程證，則是發給非為定居而來港的人士。 根據代表入境處處長作出並送交法院的誓章證詞所載，內地機關已實行單程證定額制度多年，而定額數目亦時有改變。現時定額為每天150名。據該誓章證詞所載，情況如下： “ ．．．．內地居民前來定居的合法途徑，仍然是必須取得單程證。公安部出入境管理廳在各省、市或縣的有關辦事處或部門負責決定是否批准發出單程證。入境事務處並無參與涉及輪候單程證之事宜，亦無參與分配或批准發出單程證之事宜，該等事宜是由公安部出入境管理廳單方面負責，而且情況一向如此。關於每天的單程證定額數目，雖然內地機關會徵詢香港機關的意見，然而最終決定仍然是由內地機關作出。換言之，問題並不僅是根據香港法律某人是否有權在香港入境或居留，而是有意在香港入境或居留的內地居民也必須符合關於在中國離境適用的內地法律。” +上述誓章證詞對有關機關的描述與“該公告”之描述略有不同。本法院將會採用“該公告”之描述，以下稱之為“內地出入境管理處”。此誓章證詞又指出，截至1997年年中為止已約有66,000名在二十歲以下的人士提出單程證申請，聲稱屬第24（2）條第三類別以內的人士。 我等注意到內地法律規定中國公民必須得到出境批准方可出境；而與本上訴有關的是上述關於中國公民從內地前來香港（即中國的另一部分）的內地法律。 “第3號條例 ”計劃的實行 就內地居民聲稱根據《入境條例》新附表1第2（c）段憑藉血緣而擁有永久性居民身分一事，本法院現闡述有關計劃之運作： 內地居民須要通過其在中國內地所居地的“內地出入境管理處”向入境處處長申請居留權證明書。向“內地出入境管理處”所遞交的單程證申請書，可視為居留權的申請書。 經確定其身分、國籍及其父母的婚姻是否有效後，“內地出入境管理處”便會將其申請書送交入境處處長處理。若入境處處長接納其申請，則會發出居留權證明書，而證明書亦會送交內地出入境管理處。 +他要受單程證定額制度所規限。內地機關負責實行該定額制度，並決定是否發出單程證。在“內地出入境管理處”批准發出單程證給他時，即會將其居留權證明書附貼於該單程證上。這單程證便是“第3號條例”引入的計劃所預計的有效旅行證件。 他的身分只可藉其持有附貼居留權證明書的單程證確立。若沒有該單程證，則須視作不享有居留權。即使入境處處長信納他憑藉血緣取得永久性居民身分並已發出居留權證明書（證明書會送交“內地出入境管理處”），情況也是如此。按照此計劃，單靠該證明書並不足以確立其身分，其身分只可藉持有附貼該證明書的單程證才能確立。 他不可來香港提出申請，而必須向其所居地的“內地出入境管理處”提出。就此計劃的運作而言，若他身處香港，則視為在其逗留在香港的期間是居住在中國內地。他不得藉提出證據以證明其身分來抗拒根據《入境條例》發出的遣送離境令。他只可藉持有附貼居留權證明書的單程證才能確立其身分。 申請人 + 各申請人的案情可作簡單陳述如下： 吳嘉玲小姐及吳丹丹小姐（終院民事上訴1998年第14號） 她們兩人是姊妹，是內地出生的中國籍人士。她倆分別於1987年及1989年出生，當時她們的父親已是在香港通常居住連續七年以上的中國公民。他在1976年來港，而兩名申請人則於1997年7月1日沒有通過入境管制站而進入本港。1997年7月4日她們向入境處報到，堅稱根據《基本法》第24（2）條第三類別擁有居留權，但她們的權利未獲入境處處長承認。入境處將她們拘捕，其後批准他們領取擔保書外出。 徐權能先生（終院民事上訴1998年第15號） 他是內地出生的中國籍人士，在1978年出生時，他父親已是在香港通常居住連續七年以上的中國公民，並早於1962年來港，而申請人則於1997年7月1日沒有通過入境管制站而進入本港。1997年7月3日，他向入境處報到，並堅稱根據《基本法》第24（2）條第三類別擁有居留權，但他的權利未獲入境處處長承認。入境處將他拘捕，其後批准他領取擔保書外出。 + 張麗華小姐（終院民事上訴1998年第16號） 她是內地出生的中國籍人士，在1989年出生時，她父親已是在香港通常居住連續七年以上的中國公民，並早於1967年來港。她不是父母所婚生的，其母親在她出生後的第二天便不幸去世。1994年12月，張小姐持雙程證來港。1995年1月，她的雙程證有效期屆滿，之後一直逾期居留。1997年7月15日，她向入境處報到，並堅稱根據《基本法》第24（2）條第三類別擁有居留權。但她的權利未獲入境處處長承認。入境處將她拘捕，她被拘留4日後，於1997年7月19日獲批准領取擔保書外出。 申請人之立場 兩名吳氏姊妹及徐先生均在1997年7月1日抵港，而張小姐則於此日之前抵步。除了徐先生外，她們均為未成年人，但他們的實際年齡對本案並不重要。我等明瞭現時大約有1,000至1,500名於1997年7月10日之前抵港的人士聲稱他們均屬《基本法》第24（2）條第三類別所述之永久性居民。 + 就吳氏姊妹及徐先生而言，入境處處長承認他們均屬《基本法》第24（2）條第三類別所述之永久性居民，在他們出生時他們的父母其中一人（即父親）屬《基本法》第24（2）條第二類別所述之永久性居民，而他們是這些居民“在香港以外所生的中國籍子女”，他們的父親則是在香港通常居住連續七年以上的中國公民。 至於張小姐，入境處處長則以她是非婚生為理由，稱她不屬《基本法》第24（2）條所述之永久性居民。但若非持有此論點，則入境處處長會承認張小姐屬《基本法》第24（2）條第三類別所述之永久性居民。她亦是在香港以外出生之中國籍人士，而她出生時，其父親屬第24（2）條第二類別所述之永久性居民。 他們的父親已分別在港居留一段頗長時間。徐先生的父親早於1962年來港。張小姐的父親於1967年抵港，而吳氏姊妹的父親則於1976年到港。雖然第24（2）條第二類別所述的永久性居民必須為在香港通常居住連續七年以上的中國公民，但我等應該留意到本案所涉及的申請人的父親在香港居住已遠遠超過七年，並且早已成為我們社會的一分子。 + 申請人堅稱他們屬第24（2）條所述之永久性居民，故享有第24（3）條所賦予之居留權。張小姐堅稱她雖屬非婚生，但這不應影響她的永久性居民的身分。 入境處處長的立場 入境處處長所持的立場為申請人受“第3號條例”引進的計劃所限制。根據這項計劃，憑藉血緣而享有之永久性居民身分只能以附貼有居港權證明書的單程通行證予以確立。上述申請人無一持有這種通行證，更遑論是附貼有此種居港權證明書的通行證。根據“第3號條例”第2AA（2）條，他們須視作不享有居留權。根據這項計劃，他們不能在香港逗留，必須返回內地向“內地出入境管理處”申請居權證，而向該管理處提出之單程證申請可視為居權證申請。有關人士只能持有附貼有這種居權證的單程證才可確立其永久性居民身分，而在此身分獲確立前，他須視作不享有居留權。 儘管入境處處長信納申請人（張小姐除外）屬第24（2）條第三類別所述之永久性居民，亦同時承認若張小姐不是非婚生子女，她也屬第24（2）條第三類別所述之永久性居民，但他們也因上述理由而不享有居留權。此外，儘管申請人在1997年7月10日計劃實施之前已扺港，情況亦是一樣。入境處處長堅稱，由於在1997年7月10日制定之“第3號條例”當作自1997年7月1日起實施，故申請人仍受該項計劃所限制。 + 透過司法覆核提出異議 各申請人提出司法覆核，要求法院作出多項宣告及命令，以推翻入境處處長的決定。這些均屬例案。 原訟庭法官之判決 原訟庭法官（祈彥輝）只在非婚生子女問題上裁定張小姐勝訴，在其他事項上則裁定各申請人均敗訴，並撤銷他們的司法覆核申請。（見[1997]《HKLRD》1081及[1997]3《HKC》64）。 上訴法庭之判決 各申請人向上訴法庭提出上訴。就張小姐一案而言，入境處處長就非婚生子女問題之判決提出上訴，而張小姐則就司法覆核之判決交相上訴。 由高等法院首席法官陳兆愷、上訴法庭副庭長黎守律及副庭長馬天敏組成之上訴法庭維持原訟庭法官之判決。他們聆聽上訴後，分兩部分作出判決。第一部分處理“第2號條例”及“第3號條例”所產生的問題（見[1998]1《HKC》617），而第二部分則處理臨時立法會的合法性問題（見[1998]1《HKLRD》772及[1998]2《HKC》382）。關於第一部分的問題，上訴法庭維持原訟庭法官就“第2號條例”判張小姐勝訴之判決，以及維持就“第3號條例”的合法性問題判入境處處 +長勝訴之判決。至於追溯條文方面，上訴法庭則以多數裁定此條文有效，但卻不適用於1997年7月1日前抵港之人士。至於第二部分之問題，上訴法庭裁定法庭受較早前該庭在香港特別行政區訴馬維騉一案的判決所約束（見[1997]《HKLRD》761及[1997] 2《HKC》315（1997年7月））。上訴法庭在該案裁定臨時立法會乃獲合法授權而成立。 上訴法庭作出判決後，徐先生獲發單程證，並以此證離開及再次進入本港。但本案的關鍵並非在此。就本上訴而言，處理徐先生的案件時，應把他當作仍在提出司法覆核申請時的階段，並無持有單程證般處理。 上訴法庭批准申請人向本法院上訴。關於張小姐一案方面，入境處處長就非婚生子女問題之判決提出上訴，而張小姐則交相上訴。至於其他案件，則屬各申請人提出之上訴。 祈彥輝法官及上訴法庭用心撰寫的判詞，特別是高等法院首席法官陳兆愷的判詞，對我等幫助很大。 所爭議之問題 在本上訴案中所爭議之問題如下：- （1） 終審法院在審理這些案件時是否有司法管轄權解釋《基本法》的有關條款，或是否必須根據《基本法》第158條請全國人民代表大會常務委會對 +有關條款作出解釋（“提交人大解釋問題”）。 （2） 引進居權證計劃的“第3號條例”是否違憲，以及倘若違憲，則“第3號條例”在那方面違憲（““第3號條例”是否違憲問題”）。 （3） “第3號條例”第1（2）條這項賦予追溯力的條文將該條例當作自1997年7月1日起實施是否符合憲法（“追溯效力問題”）。 +（4） “第2號條例”引進的附表1第1（2）（b）段是否違憲。該項條文的後果是，如果一名子女屬非婚生，則只有因父母其後結婚而獲確立婚生地位後，父親與該子女之間才可視為有“父母與子女的關係”存在，並僅以此情況為限（“非婚生子女問題”）。 （5） 臨時立法會是否一個合法組成的機構（“臨時立法會問題”）。倘若臨立會不是一個合法組成的機構，則由其制定之“第3號條例”亦順理成章是違憲的。 法律代表 在本法院以及下屬法院進行訴訟時，申請人均由法律援助署以公帑延聘律師出任他們的法律代表。本案在下屬法院審理時，申請人是由資深大律師張健利代表，而有關臨時立法會問題則由資深大律師戴啟思代表。至於入境處的法律代表則為資深大律師馬道立。他們以及由他們領導的法律代表團對本法院提供了相當大的幫助，我等在此謹表謝意。 憲法賦予法院的司法管轄權 在處理上述受爭議的問題前，我等首先說明憲法賦予香港特別行政區法院的司法管轄權，然後再為解釋《基本法》 +制定恰當的處理方法；這兩點均至為重要。 香港特區享有獨立的司法權和終審權（《基本法》第19（1）條），而特區各級法院是特區的司法機關，行使特區的審判權（《基本法》第80條）。 在行使《基本法》所賦予的司法權時，特區的法院有責任執行及解釋《基本法》。毫無疑問，香港法院有權審核特區立法機關所制定的法例或行政機關之行為是否符合《基本法》，倘若發現有抵觸《基本法》的情況出現，則法院有權裁定有關法例或行為無效。法院行使這方面的司法管轄權乃責無旁貸，沒有酌情餘地。因此，若確實有抵觸之情況，則法院最低限度必須就該抵觸部分，裁定某法例或某行政行為無效。雖然這點未受質疑，但我等應藉此機會毫不含糊地予以闡明。行使這方面的司法管轄權時，法院是按《基本法》執行憲法上的職務，以憲法制衡政府的行政及立法機構，確保它們依《基本法》行事。 一直引起爭議的問題是，特區法院是否具有司法管轄權去審核全國人民代表大會或其常務委員會的立法行為（以下簡稱為“行為”）是否符合《基本法》，以及倘若發現其抵觸《基本法》時，特區法院是否具有司法管轄權去宣佈此等行為無效。依我等之見，特區法院確實有此司法管轄權，而且有責任在發現有抵觸時，宣佈此等行為無效。關於這點，我等應藉此機會毫不含糊地予以闡明。 + 根據《中國憲法》（第57及58條），全國人民代表大會是最高國家權力機關，其常設機關是常務委員會，二者行使國家立法權，故此其行為乃屬主權國行使主權的行為。特區法院審核上述二者之行為是否符合《基本法》的司法管轄權是源自主權國，因為全國人民代表大會是根據《中國憲法》第31條而制定特區的《基本法》的。《基本法》既是全國性法律，又是特區的憲法。 與其他憲法一樣，《基本法》既分配權力，也界定權限，並且訂明各項基本權利及自由。與其他憲法一樣，任何抵觸《基本法》的法律均屬無效並須作廢。根據《基本法》，特區法院在《基本法》賦予特區高度自治的原則下享有獨立的司法權。當涉及是否有抵觸《基本法》及法律是否有效的問題出現時，這些問題均由特區法院裁定。因此，全國人民代表大會或其常務委員會的行為是否抵觸《基本法》這問題由特區法院裁定，但當然特區法院所作的決定亦必須受《基本法》的條款限制。 鑑於制定《基本法》是為了按照《聯合聲明》所宣示和具體說明的內容，落實維持香港五十年不變的中國對香港的基本方針政策，上述論點便更具說服力。《基本法》第159（4）條訂明《基本法》的任何修改均不得抵觸既定的基本方針政策。為了行使司法管轄權去執行及解釋《基本法》，法院必須具有上述的司法管轄權去審核全國人民代表大會及其常務委員會的行為，以確保這些行為符合《基本法》。 + 香港特別行政區訴馬維騉一案是涉及普通法在新制度下的繼續存在以及臨時立法會的合法性問題。上訴法庭（由高等法院首席法官陳兆愷、上訴法庭副庭長黎守律及馬天敏組成）接納政府的陳詞，裁定由於全國人民代表大會的行為是主權行為，因此特區法院並不擁有司法管轄權去質疑這些行為的合法性。上訴法庭並裁定特區法院的司法管轄權只局限於審核是否存在主權國或其代表的行為（而非行為的合法性）。我等認為上訴法庭就特區法院的司法管轄權所作出的這項結論是錯誤的，上文所述的立場才是正確的。 上訴法庭基於《基本法》第19（2）條作出其結論。第19（2）條規定：- “ 香港特別行政區法院除繼續保持香港原有法律制度和原則對法院審判權所作的限制外，對香港特別行政區所有的案件均有審判權。” 政府在該案所陳述的論據為1997年7月1日前，香港法院也不能質疑英國國會通過的法例是否違憲，即是否違反英國的不成文憲法或香港作為殖民地的憲法文件《英皇制誥》。因此，這是《基本法》第19（2）條所設想的“原有法律制度和原則”對香港法院審判權所作的一種限制。所以政府辯稱在1997年7月1日後，這限制同樣適用於全國人民代表大會的行為。上訴法庭接納了政府的論據。 把舊制度與此相提並論是對問題有所誤解。1997年7 +月1日前，香港是英國殖民地。根據普通法，英國國會擁有最高權力為香港立法而香港法院不能質疑這項權力。 基於已申述的理由，在新制度下，情況截然不同。《基本法》第19（2）條規定“原有法律制度和原則”對憲法賦予法院的司法管轄權有所限制。但這條款不能把在舊制度下純粹與英國國會法例有關的限制引進新的制度內。 我等應指出代表入境處處長的資深大律師馬先生在本法院聆訊本案時已不再堅持政府較早前在香港特別行政區訴馬維騉一案所持的立場。他實際上同意特區法院擁有我等所述之司法管轄權去審核全國人民代表大會及其常務委員會的行為是否符合《基本法》，並且同意該案在這方面的判決與我等所闡述之立場有抵觸之處，實屬錯誤。 我等亦應指出高院首席法官陳兆愷在本案就臨時立法會問題作出判決時表示，他在香港特別行政區訴馬維騉一案就特區法院司法管轄權所發表的意見只是針對該案的情況而言，不可理解為全國人民代表大會通過的法律及其行為凌駕《基本法》；他又表示他在該案把特區法院與殖民地時代法院相提並論可能不大恰當，並謂可能在某些適當的案件 +中，特區法院有司法管轄權去審核影響特區的全國人民代表大會的行為及其通過的法律。 對法院的司法管轄權所作出的任何限制必須以《基本法》為依據。如上文所述，《基本法》第19（2）條提及繼續保持香港原有法律制度和原則對法院審判權所作的限制。第19（3）條便提供了一個例子。第19（3）條規定：- “香港特別行政區法院對國防、外交等國家行為無管轄權。．．．．．” 《基本法》第158條亦規限終審法院不得在該條款所指的情況下，對《基本法》“關於中央人民政府管理的事務或中央和香港特別行政區關係”的條款進行解釋，且終審法院有責任請全國人民代表大會常務委員會對有關條款作出解釋。稍後討論到有關“提交人大解釋的問題”時，我等會再處理《基本法》第158條的問題。 + 有關解釋《基本法》的處理方法 首先我等必須認識及了解這份文件的特性。《基本法》是為貫徹獨一無二的“一國兩制”原則而制定的憲法性文件，具有不可輕易修改的地位。制定憲法性文件時，一般都會採用涵義廣泛和概括性的語言。憲法是一份具有靈活性的文件，旨在配合時代轉變和適應環境的需要。 解釋《基本法》這樣的憲法時，法院均會採用考慮立法目的這種取向，而這方法亦已被廣泛接納。法院之所以有必要以這種取向來解釋憲法，是因為憲法只陳述一般原則及表明目的，而不會流於講究細節和界定詞義，故必然有不詳盡及含糊不清之處。在解決這些疑難時，法院必須根據憲法本身及憲法以外的其他有關資料確定憲法所宣示的原則及目的，並把這些原則和目的加以貫徹落實。因此，在確定文件的真正含義時，法院必須考慮文件的目的和有關條款，同時也須按文件的背景來考慮文本的字句，而文件的背景對解釋憲法性文件尤為重要。 + 關於目的方面，制定《基本法》的目的是按照《聯合聲明》所闡述及具體說明的中國對香港的基本方針政策，在“一國兩制”的原則下成立與中華人民共和國不可分離的香港特別行政區，並實行高度自治。在確定《基本法》某項條款的目的時，法院可考慮該條款的性質，或《基本法》的其他條款，或參照包括《聯合聲明》在內的其他有關外來資料。 有關文本所使用的字句，法院必須避免採用只從字面上的意義，或從技術層面，或狹義的角度，或以生搬硬套的處理方法詮釋文意。法院必須考慮文本的背景。《基本法》某項條款的文意可從《基本法》本身及包括《聯合聲明》在內的其他有關外來資料中找到。法院也可藉用語傳統及文字慣用法去了解所用的文字的意思。 《基本法》第三章一開始便界定包括永久性居民及非永久性居民在內的香港居民類別的定義，接着訂明香港居民的權利和義務，其中包括永久性居民享有居留權。界定了香港居民類別的定義後，《基本法》第三章接着列明受憲法保障的各項自由；這些自由是兩制中香港制度的重心所在。為了令香港居民充分享有上述憲法所保障的各項基本權利及自由，法院在解釋第三章內有關那些受保障的權利及自由的 +條文時，應該採納寬鬆的解釋。 然而，法院在解釋有關界定香港居民定義的條款，特別是關於永久性居民類別的條款時（有別於解釋該等居民的權利自由等憲法保障），則只應參照任何可確定的目的及背景來考慮這些條款的字句。背景包括《基本法》的其他條款。適用於香港並根據第39條繼續有效的《公民權利和政治權利國際公約》（“國際人權公約”）的有關條文，以及任何從該公約歸納出來的有關原則，尤其有助於解釋這些條款的字句。 上文所列關於在解釋《基本法》時法院所應採納的原則，實非詳盡無遺，亦不可能一一盡列。憲法文件的詮釋跟其他文件的詮釋一樣，主要是針對具體問題。一旦出現詮釋問題時，法院便會處理這些問題所帶來的疑難，並在有需要時訂立一些原則加以解決。 我等現轉而處理所爭議的問題。 提交人大解釋問題 + 《基本法》第158條已在本判決書的較前部分原文照錄。第158（1）條規定《基本法》的解釋權，屬於全國人民代表大會常務委員會。第158（2）條規定“人大常委會”“授權”特區法院“在審理案件時對本法關於香港特別行政區自治範圍內的條款自行解釋”。顯而易見，這包含了憲法上的授權，而雙方大律師也接納這論點。我等認為，“自行”二字強調了特區的高度自治及其法院的獨立性。 但特區法院的司法管轄權並非局限於解釋這類條款。因為，第158（3）條規定特區法院在審理案件時對《基本法》的“其他條款也可解釋”。 然而對終審法院來說，這項司法管轄權存在一種規限。如果特區法院： “ 在審理案件時需要對本法關於中央人民政府管理的事務或中央和香港特別行政區關係的條款進行解釋，而該條款的解釋又影響到案件的判決，在對該案件作出不可上訴的終局判決前，應由香港特別行政區終審法院請全國人民代表大會常務委員會對有關條款作出解釋。” 由於只有終審法院才能對案件作出不可上訴的終局判決，所以這條款規限了終審法院的司法管轄權。當符合上述指定的條件時，終審法院便有責任請“人大常委會”解釋有關的條款。 + 第158（3）條接著規定當“人大常委會”對該等條款作出解釋，“香港特別行政區法院在引用該條款時，應以“人大常委會”的解釋為準。但在此以前作出的判決不受影響。” 第158（4）條規定“人大常委會”有責任在決定如何解釋有關條款前，先徵詢其所屬的《基本法》委員會的意見。《基本法》委員會是全國人民代表大會在1990年4月4日會議通過設立的。當日的議決是《基本法》委員會為“人大常委會”下設的工作委員會，由十二名成員組成；由“人大常委會”任命內地和香港人士各六名，其中包括法律界人士。香港委員須由香港特別行政區行政長官，立法會主席和終審法院首席法官聯合提名。 根據《基本法》第158條，香港法院是在“審理案件”時才有權解釋《基本法》條款。言下之意即是當法院並非在審理案件時，便沒有這項權力。這情況反映出我們的制度內一套確立已久的原則：法院的職責是審判裁決，而非提供參考意見。特區法院有以下的解釋權。《基本法》第158條提及： （a） 屬特區自治範圍內的條款，及 （b） 《基本法》的其他條款。在這些其他條款內，有兩種屬範圍之外的類別，即涉及（i）中央人民政府管理的事務，或涉及（ii）中央和香港特別行政區關係的條款。我等將（i）或（ii）條款簡稱為“範圍之外的條款”。 + 根據第158條，終審法院以下的各級法院，均有權解釋（a）及（b）項內的條款，包括“範圍之外的條款”。終審法院有權解釋（a）項內的條款，及（b）項內的其他條款，但不包括“範圍之外的條款”。 因此，終審法院以下的各級法院，有權解釋所有的《基本法》條款，不受任何限制。唯一受限制的是終審法院的司法管轄權。第158（2）條的措辭強調特區的各級法院均有權“自行”解釋在特區自治範圍內的《基本法》條款。 以終審法院來說，當符合以下兩項條件時，便有責任將有關條款提交“人大常委會”解釋： +（1）第一，當有關的《基本法》條款（a）關乎中央人民政府管理的事務，或（b）關乎中央和特區的關係，即為“範圍之外的條款”。以下簡稱此條件為“類別條件”。 （2）第二，當終審法院在審理案件時，有需要解釋這些條款（即“範圍之外的條款”），而這些條款的解釋將會影響案件的判決。以下簡稱此條件為“有需要條件”。 我等認為在審理案件時，唯獨終審法院才可決定某條款是否已符合上述兩項條件；也只有終審法院，而非全國人民代表大會，才可決定該條款是否已符合“類別條件”，即是否屬於“範圍之外的條款”。代表申請人的大律師及代表入境處處長的大律師也接納這個論點。 如果該條款不符合“類別條件”，事情就會告一段落。就算本法院需要解釋該有關條款，而該項解釋又會影響案件的判決，該條款也會因為不屬於“範圍之外的條款”而不能符合“有需要條件”。 如果該條款符合“類別條件”，也只可由終審法院決定有關案件是否符合“有需要條件”。 如果終審法院認為該“範圍之外的條款”已符合上述兩項條件，便必須請“人大常委會”解釋有關之條款。我等強調提交“人大常委會”解釋的是某些特定的“範圍之外的 +條款”而非一般性的解釋。 誠如前述，入境處處長接納，若張小姐不是因為非婚生子女這點，她與其他申請人一樣都屬《基本法》第24（2）條第三類別的永久性居民。第24（3）條規定永久性居民有居留權。根據“第3號條例”引進的居權證計劃，申請人除非擁有內地簽發的單程證，而單程證上又附貼了由入境處處長簽發的居留權證明書，否則並不享有居留權。入境處處長請求法院裁定“第3號條例”是符合憲法的，原因是《基本法》第24條受第22（4）條規限。第22（4）條規定中國其他地區的人士若要進入特區，必須辦理批准手續。這條款還進一步規定進入特區定居的人數，要由中央人民政府主管部門徵求特區政府的意見後確定。入境處處長的論點是由於申請人是第22（4）條所述的來自中國其他地區的人士，一定要先得到內地當局批准才可進入特區，而這規定也成為居權證計劃的憲法基礎，即申請人必須獲得以單程證形式簽發的出境批准，才可享有居留權。 + 代表入境處處長的資深大律師馬先生指出第22（4）條是在《基本法》的第二章內，而第二章的標題是“中央和香港特別行政區的關係”。他認為第22（4）條是“範圍之外的條款”，原因是這條款符合《基本法》第158條所述兩種“範圍之外的類別”。他認為出境批准是關乎中央人民政府管理的事務，而人民由內地進入特區則關乎中央和香港特區的關係。根據入境處處長的論點，本法院在審理本案時，必須解釋第22（4）條。所以，他認為這條款符合了“類別條件”及“有需要條件”。 資深大律師馬先生清楚指出入境處處長並非要求法院根據《基本法》第158條，將這條款提交“人大常委會”解釋，但他一定要作出這些陳詞，令本法院能夠考慮應否將該條款提交“人大常委會”。我等覺得代表入境處處長的資深大律師馬先生作出這些陳詞是恰當的，因為這是關乎法院在憲法上的司法管轄權。 雖然資深大律師馬先生同時依賴該兩種“範圍之外的類別”，但以目前處理的問題來說，我等會純粹基於第22（4）條涉及中央政府與特區的關係而假設第22（4）條為一項“範圍之外的條款”。 + 我等面對的問題關鍵在於法院在考慮該條款是否符合“類別條件”時，應該採用何種考慮原則。 資深大律師馬先生認為當（a）法院在解釋X條款時（以本案來說，即《基本法》第24條），而該條款屬關於特區自治範圍內的條款，因而並非“範圍之外的條款”，但法院發覺（b）屬關於範圍之外的Y條款（以本案來說，即第22（4）條）是否與解釋X條款有關是一個可爭論的問題，則在這情況下，法院應根據第158條，將這條款提交“人大常委會”。 我等現在要考慮的是應否根據第158條將該條款提交“人大常委會”。現階段本法院需要處理的是，有關論點是否一個可爭論的問題，而非就解釋的問題作出決定。如果該條款須要提交“人大常委會”，便會由“人大常委會”處理；如果不須提交的話，便會由本法院處理。任何論點如果是顯而易見的歪理，當然便沒有爭論餘地。如果本法院在現階段決定這論點是不可爭論的話，提交的問題便告一段落。如果法院決定這論點是可爭論的話，便會進一步考慮是否符合“類別條件”及“有需要條件”。就本案來說，一項“範圍之外的條款”(第22(4)條)是否與解釋一項“非範圍之外的條款”(第24條)有關是一個可爭論的問題。 在決定應採用何種考慮原則來決定該條款是否符合“類別條件”時，法院須要採用“立法目的”這一原則。《基本法》第158條其中一個重要的目的是“人大常委會”授權香港法院，包括終審法院，“自行”解釋《基本法》中屬“範圍之外的條款”以外的各章節，特別是關於屬特區自治範圍 +內的條款。這是特區高度自治的必不可少的部分。 從上述的觀點出發，讓我等討論應採用何種考慮原則。X條款（這裡指第24條）是關於特區自治範圍內的條款，在作出解釋時，必須考慮其背景，這自然包括《基本法》的其他條款，而這些條款可能在某幾方面與解釋X條款有關。例如這些條款可能透過增減修訂等形式來規限X條款，或潤飾X條款的意思，又或提供指標來解釋X條款。根據資深大律師馬先生的論點，當一項“範圍之外的條款”（這裡指第22（4）條）如上述般與X條款有關，便須提交“人大常委會”。提交的主題不是要求解釋X條款，因它並非“範圍之外的條款”；馬先生的論點似是：提交的主題是請“人大常委會”解釋該“範圍之外的條款”，而該項解釋只限於涉及X條款的解釋。這樣的提交，會收回了本法院對解釋《基本法》中關於屬特區自治範圍內的條款（X條款）的司法管轄權。我等認為這樣做會嚴重削弱特區的自治，而且是不對的。 我等認為，在考慮該條款是否符合“類別條件”時，應採用代表申請人的資深大律師張先生提出的考慮原則 — 實質上，法院審理案件時最主要需要解釋的是哪條條款？如果答案是一條“範圍之外的條款”，本法院必須將之提交“人大常委會”。如果最主要需要解釋的並非“範圍之外的條款”，便不須提交。在這情況下，即使一條“範圍之外的條款”可以爭辯地說成與“非範圍之外的條款”的解釋有關，甚至規限了“非範圍之外的條款”時，法院仍毋須將問題提交“人大常委會”。 + 這考慮原則落實了《基本法》第158條的兩項主要目的，就是賦予“人大常委會”有權解釋《基本法》，尤其是“範圍之外的條款”，並同時授權特區法院解釋“非範圍之外的條款”，特別是屬自治範圍內的條款，特區法院更可“自行”解釋。 我等覺得相當重要的是：《基本法》第158條規定只在解釋“範圍之外的條款”時，才須提交“人大常委會”。當多條條款（包括“範圍之外的條款”）與解決案中涉及的一般性解釋問題有關時，第158條並沒有規定法院須請“人大常委會”作一般性的解釋。 法院在採用這考慮原則來審理此案時，實質上最主要需要解釋的是第24條，即關於永久性居民的居留權及該項權利內容的規定，而申請人上訴要求行使的權利，正是源自這條款。在這情形下，本法院覺得毋須把這條款提交“人大常委會”解釋，儘管第22（4）條是否與解釋第24條有關是一個可爭論的問題。 “第3號條例”是否違憲 關於這項爭論，問題的關鍵在於《基本法》第22（4）條是否規限了第24（3）條所訂的居留權。原訟庭法官裁定後者是受前者規限。他認為這可能是削弱特區高度自治的一個例子，但這是第22（4）條所認可的。上訴法庭的兩位副 +庭長黎守律及馬天敏都同意原訟庭法官的取向。高等法院首席法官陳兆愷也裁定這兩條條款是互有關連，然而他認為第22（4）條限制了仍在內地的人士去行使這居港權利。如果恰當地解釋《基本法》後，本法院的意見跟原訟庭及上訴法庭的法官意見不同的話 — 該兩條條款並無關連，而第24條也不受第22（4）條影響，則在這情形下，“第3號條例”要求永久性居民要先持有單程證才可享有居留權便缺乏憲法上的依據。代表入境處處長的資深大律師馬先生也接納這個論點。至於要求永久性居民持有居權證來核實其聲稱，則是另一回事。 + 本法院必須強調，若張小姐不是受非婚生的問題所影響，入境處處長便會接納她和本案其他申請人一樣都屬第24（2）條第三類別所述的永久性居民。本法院現在並非要處理永久性居民類別的定義，而是要處理第24（3）條所述的人士的居留權問題，而該等人士毫無疑問屬永久性居民。 第24（3）條規定：永久性居民在特區“享有居留權”。《入境條例》（2A條）界定了永久性居民享有的權利，即有權入境，不會被施加任何逗留條件，不受任何遞解離境令或遣送離境令的約束。法例界定的居留權，類似普通法的居留權概念。普通法內的居留權曾被描述為“．．．．進入[該司法管轄區]的權利，不受任何障礙或阻礙，任由（居留權擁有人）喜歡何時入境及[隨己意]在境內逗留多久”（見1972年英國上訴案例：Director of Public Prosecutions v. Bhagwan [1972 ]《AC》 60，見第74頁B行。）因此，進入司法管轄區的權利，或根據法例所界定的入境權利，正是居留權的要素。 本法院在前文界定了永久性居民類別後，已斷定在解釋保障他們權利的憲法條款時，應採用寬鬆的取向。誠如代表申請人的資深大律師張先生所指出，居留權實為一核心權利。事實上，入境權是居留權之要素，如沒有居留權和入境權，申請人便難以享有其他獲憲法保障的權利和自由，特別是選舉權和參選權。在採用寬鬆的取向時，本法院認為，對於任何指第22（4）條削弱了核心權利的論點均應非常仔細研究。 + 第24（3）條賦予永久性居民不受限制的居留權。如果第22（4）條規限了第24（3）條這個論點是正確的話，那些亳無疑問擁有永久性居民身分卻仍在內地居住的人士，其居留權利便毫無保障。特區的憲法一方面賦予他們在特區內符合憲法的居留權，但另一方面，卻令這權利受國內機關的酌情權所限制，而這酌情控制權是在特區政府的權力範圍外。單程證所作出的控制，和配額數目及配額分配的決定有關。再者，根據這項論點，這種情況會導致兩類同樣擁有永久性居民身分的人士在憲法上有不同的居留權利，即對於仍在國內居住的人士來說，儘管他們是符合第24（2）條第三類別的永久性居民，但他們的權利受到第22（4）條規限；但同樣類別的永久性居民，如在內地以外的地方居住，其居留權則不受此規限。 我等不能接納這個論點。在解釋居留權條款時，定要採用一種寬鬆的取向。我等考慮到第24條與第22（4）條的用詞時，認為第22（4）條內所指的“中國其他地區的人”包括進入特區定居的人，但不包括《基本法》已賦予其在特區擁有居留權的特區永久性居民。按對言詞的一般理解，根據《基本法》而擁有永久性居民身分的人士不能稱之為“中國其他地區的人”。他們是中國這地區（香港）的永久性居民。將他們形容為是為了定居而進入特區的人也是不正確的。他們進入特區並非為了定居。他們本身為永久性居民，擁有進入特區及在特區隨意逗留的權利。 我等認為，按照第22（4）條的正確解釋，即使全面履 +行該條款時亦不會侵犯第24條所列的居留權。第22（4）條並不適用於特區的永久性居民，只適用於內地絕大部分沒有特區居留權的人士，儘管他們居住的地方與特區同屬一國，他們也不能未經批准便進入特區。“批准”應該是指內地機關的批准，這個假設是正確的。再者，這條例規定進入特區定居的人數，由中央人民政府主管部門徵求特區政府的意見後確定。 我等的結論符合《基本法》設立特區的目的，就是在“一國兩制”的原則下實行高度自治。批准在國內的非特區永久性居民的人士進入特區，及決定進入特區定居者的人數都是內地機關的責任。特區政府在不同的制度下行使高度自治，並有責任去接收根據憲法擁有居留權的永久性居民。我等認為，第22（4）條並沒有容許特區的自治權受到削弱。 + 代表入境處處長的資深大律師馬先生指出第24條是受到第22（4）條的規限，並援引《聯合聲明》附件一第十四部分以支持這個論點。《聯合聲明》具體說明了中國的基本方針政策。附件一第十四部分列出了永久性居民的類別，亦即現今在《基本法》第24（2）條的類別。這第十四部分繼而規定中國其他地區的人在進入特區時，“將按現在實行的辦法管理”。資深大律師馬先生所倚賴的“實行的辦法”，在1984-1985《聯合聲明》發表的當時，就是指內地居民獲得離境批准後才可進入香港的規定。第十四部分訂定這“實行的辦法”須沿用下去，然而，並無跡象顯示，這個部分的原意是要這“實行的辦法”適用於永久性居民，從而規限了他們擁有的居留權，而這居留權早已在這部分有所訂明。因此，我等並不認為《聯合聲明》在這方面能提供任何協助。 資深大律師馬先生除了基於第22（4）條作出基本陳詞外，亦同時提出另一論點（儘管他只是輕輕帶過）。他指出鑑於內地的法律規定居民來港須有出境批准，故第24（3）條的解釋便受一項隱含限制的約束，即基於合理的原則，必須遵守關於出境須經批准才可來港的國內法律。如果一條內地的法例可提供憲法基礎去規限《基本法》賦予的一項憲法權利這一論點是正確的話，這便會帶來深遠的影響。 我等認為這論點絕不能成立，原訟庭法官與上訴法庭駁回這點，實屬正確。《基本法》第18（2）條規定全國性法律除列於《基本法》附件三者外，不在特區實施；而列於附件三之全國性法律，由特區在當地公佈或立法實施。第18 +（3）條規定“人大常委會”在徵詢其所屬的《基本法》委員會和特區政府的意見後，可對列於附件三的法律作出增減。但第18（3）條跟著規限了“人大常委會”的權力，規定任何列入附件三的法律，“限於有關國防、外交和其他按本法規定不屬於香港特別行政區自治範圍的法律”。這條款限制了引用內地的法律，這點在履行“一國兩制”的原則上是非常重要的。如果資深大律師馬先生的論點是正確的話，這便會提供一偏徑，讓內地的法律得以在香港施行。我等認為這論點是毫無基礎可言的。 內地的法律規定內地居民要有出境批准才可進入香港，這法律當然可以全面在國內執行，但卻不能作為一項憲法的基礎來規限《基本法》所賦予的權利。 因此，“第3號條例”規定居於內地的特區永久性居民，要先持有單程證才可享有憲法賦予的居留權，這點是違憲的。 + 然而，這並非表示“第3號條例”所引進的整個居權證計劃是違憲。大家必須把享有居留權的永久性居民和聲稱是永久性居民的人士區別清楚。所以，立法當局引進一項計劃來核實某些人士聲稱擁有永久性居民的身分是合理的做法。我等認為在居權證計劃中，必須持有單程證的規定是違憲的，除此之外，計劃的其他部分都是符合憲法的，不能稱之為逾越核實範疇。因此，該計劃規定聲請人須向入境處處長申請及領取居權證，並且只能在持有居權證後才能確立其永久性居民的身分都是符合憲法。再者，居權證計劃訂明這些人士必須留在內地申請居權證，及在被入境處處長拒發居權證而提出上訴時，也必須留在內地，這方面也是符合憲法。永久性居民因為擁有居留權而有權入境，但聲稱擁有這身分的人其身分必須首先獲得核實。 我等裁定因居權證計劃（持有單程證的規定除外）的目的在於核實聲稱人身分，所以是符合憲法的，同時我等亦顧及到入境處處長必須合法地，以公正合理的態度來執行居權證計劃，而且在落實計劃時還有一些制衡的保護措施。 首先，以法例釋義來說，在這核實計劃運作時，法院會對若干條款定下要求，引進合理標準。例如入境處處長可透過憲報公告形式，具體說明該如何申請居權證（第2AB（2）（a）條），但在行使這項權力時，入境處處長所作出的說明必須是合理的，而法庭亦只會作如是詮釋。其次，如果入境處處長不合法地拖延作出接納或拒絕申請的決定，有關申請人雖然身處內地，仍可向特區法院要求作出公法上的補救。 +再者，如果入境處處長決定拒絕該項居權證的申請，申請人有法定的上訴權，可向入境事務審裁處提出上訴。這項上訴權利是一種全面的保障。入境處處長有法定責任提供拒絕該項申請的理由，申請人在90天內可提出上訴。根據法例，審裁處的決定為最終的判決，但審裁處有責任“就其所裁斷的事實”來決定有關人士是否可憑藉血緣成為永久性居民，如答案是肯定的話，則要裁定上訴得直。 分割（違憲部分） 我等經考慮後，認為“第3號條例”內的違憲部分，可適當地與符合憲法的部分分割開。分割的準則在於符合憲法的部分是否可清晰地與違憲部分區別出來，從而使符合憲法的部分仍保持完整。我等認為這是可行的。以下乃違憲的部分，應予刪除。在提及法院反對的部分時，我等採用《入境條例》的條款編號，除非另有所指才屬例外。 第2A（1）條 增加了的文字，即“在不抵觸第2AA（2）條的條文下”，現予刪除。經刪除後，第2A（1）條的內容如下： “（1）香港永久性居民享有香港居留權，換言之，具有以下權利 — 在香港入境； … … …” + （2）第2AA（1）（a）條 經刪除後，該條款的內容如下： “（1）任何人作為附表1第2（c）段所指的香港特別行政區永久性居民的身分，只可藉其持有以下文件確立— 發予他的有效居留權證明書” 除了以上所列之內容外，（a）段的其他文字予以刪除。 （3）第53D（3）（a）條 第53D（3）條由“第3號條例”第7條增補，刪除後，第53D（3）（a）條的內容如下： “（a）發予他的有效居留權證明書。” 除了以上所列之內容外，（a）段的其他文字予以刪除。 （4）《入境規例》之附表一 “第3號條例”第10條於附表一內加入表格12，即居留權證明書表格。現將表格內的第二句刪除，即 “ 本證明書必須附貼於本證明書持有人的有效 +旅行證件上，方為有效。” 經刪除後，只留下第一句，即 “本證明書持有人在香港特別行政區的居留權已確立。” 我等以下稱“第3號條例”及其引入的居權證計劃經刪除後的部分為“分割後的第3號條例”及“分割後的居權證計劃”。 關於入境處處長的公告，雖然並非附屬法例，但根據我等較早前對“第3號條例”的合憲性作出的結論，也可以將我等反對的部分予以刪除。據了解，因為“第3號條例”規定申請人須持有單程證，所以便牽涉“內地出入境管理處”，而我等已裁定須持有單程證的規定是違憲的。我等並不知道在“分割後的居權證計劃”下，入境處處長是否願意請“內地出入境管理處”作為入境處在內地的代理機關，方便內地居民申請居權證；本法院也不知道“內地出入境管理處”會否願意牽涉在內。因此，我等將“該公告”內的A（i）及B段剔除。這令到公告內就有關內地居民應向誰申請居權證這方面缺乏交代。入境處處長必須以公告形式，具體說明新的安排。本法院並不反對要向內地的某一單位提出申請這種安排，只要該單位是以香港入境處的代理機構身分運作，方便內地居民申請居權證便行。至於“內地出入境管理處”是不是一個合適的機構提供這項服務，便應由入境處處長及“內地出入境管理處”去考慮。 有關追溯力的問題 + “第3號條例”在1997年7月10日制訂，但根據第1（2）條，該條例被視為於1997年7月1日起生效。問題在於這條賦予追溯力的條文（“追溯條文”）是否符合憲法。若不符合的話，第1（2）條便要從該條例中刪除。 原訟庭法官和上訴法庭副庭長馬天敏都認為該條文是有效的，並影響(i)1997年7月1日之前到港人士以及(ii)在1997年7月1日或之後及在7月10日之前到港人士。上訴法庭副庭長黎守律認為該條文有效但不影響上述第(i)類人士。而高等法院首席法官陳兆愷則認為該條文無效，因此均不影響第（i）及第（ii）類人士。可是，他們考慮這個問題時，都是基於他們認為《基本法》第24條受第22（4）條規限所作出的結論，但我等對《基本法》的解釋持有不同的結論，故此我等以不同基礎來考慮這個問題。我等所要考慮的是，到底“分割後的第3號條例”中這條“追溯條文”是否違憲。 1997年7月10日“第3號條例”制定之前，任何憑藉血緣成為永久性居民的人士，如已抵達香港，便擁有憲法賦予的居留權。事實上，他們都已行使了這個權利，不能被遣返內地。“分割後的第3號條例”引進一個計劃。根據這個計劃，他們只可藉持有居留權證明書，才能確立他們永久性居民的身分；否則，他們便視作不享有居留權。在1997年7月10日前，他們當然不可能持有居留權證明書。若這條“追溯條文”是符合憲法，他們便會被視為不享有居留權。這樣便會剝奪他們根據《基本法》已享有的、具憲法性的居留權。我等認為，這條“追溯條文”乃屬違憲。代表入境處處長的 +資深大律師馬先生以“第3號條例”有部分違憲為基礎接納這點，這與他在陳詞中聲稱“第3號條例”並無違憲的說法有所不同。 我等接着考慮代表申請人的資深大律師張先生所提出的另一個理據，以支持他認為這條“追溯條文”是違憲的陳詞。 在1997年7月10日之前，永久性居民（例如那些獲入境處處長接納為屬於第24（2）條中第三類別的申請人）享有憲法所賦予的居留權，並因此有權入境及逗留。但是，倘若“第3號條例”中的“追溯條文”是符合憲法的話，追溯力便會導致他們觸犯了刑事罪行。根據“分割後的計劃”，他們必須持有居留權證明書，否則，其身分便會被視作未獲確立，而他們便須被視作不享有居留權；這樣，他們便無權入境或逗留，若入境或逗留便會觸犯刑事罪行，違反《入境條例》第38條，因該條文禁止未獲批准的人士入境或逗留，違反者便是觸犯了刑事罪行。 資深大律師張先生爭辯說，這條導致他們觸犯該等刑事罪行的“追溯條文”是違憲的，因為它與“國際人權公約”第15（1）條相抵觸。 “國際人權公約”適用於香港的有關規定，憑藉第39條而繼續有效。“國際人權公約”第15（1）條規定： “ 任何人之行為或不行為，於發生當時依香港法律及國際法均不成罪者，不為罪。……” + “國際人權公約”第15（1）條和香港法例第383章《人權法案條例》中人權法案的第12（1）條完全相同。既然“國際人權公約”第15（1）條適用於香港，引述此條公約是恰當的。 高等法院首席法官陳兆愷認為此條“追溯條文”與“國際人權公約”第15（1）條互相抵觸，也違反憲法。可是，原訟庭法官與上訴法庭副庭長黎守律及馬天敏對“國際人權公約”第15（1）條的理解則為：該條款禁止根據具追溯力的條文向任何人士提出檢控並將他們定罪，但不會令該“追溯條文”失效。 “國際人權公約”第15（1）條所用的文字是：“任何人……不為罪。”正如資深大律師張先生指出，在詮釋這一句時，必須緊記“國際人權公約”是國際性公約，其對象是不同法制的國家，包括一些不一定以立法作為刑法來源的國家。有鑑於此，我等認為，根據第39條而適用的“國際人權公約”第15（1）條確實令到該“追溯條文”違反憲法。在我們的法制下，禁止憑具追溯力條文對觸犯刑事罪行的人士定罪這個做法確實會打擊該“追溯條文”的有效性。這個觀點得到Van Dijk 及 Van Hoof的支持：見《歐洲人權公約 — 理論和實踐》（譯名）Theory and Practice of the European Convention on Human Rights（第三版）第485-486頁有關該歐洲人權公約中等同的條文。 倘若我等的判決一如原訟庭及上訴法庭的判決，這便會對有關人士造成不公平的民事後果。他們可被說成是犯了 +刑事罪；雖然他們不能受到檢控或定罪，但亦可能因此受到不利的待遇，例如，在誹謗法方面以及在各種不同情況下，能否在法律上被認定為“合適及適當”的人選。但若依我等所作的結論，他們便不會面對上述可能產生的後果。 因此，我等從“第3號條例”中刪除該“追溯條文”，亦即第1（2）條。 非婚生子女的問題 根據“第2號條例”引入《入境條例》的附表1內的第1（2）（b）段規定，如子女屬非婚生子女，只有當該子女其後因父母結婚而獲確立婚生地位才存在父親與子女的關係。問題在於究竟這條文在憲法上是否有效。這段規定應與第1（2）（a）段中的母親與子女的關係作一對比；在該條文內，非婚生子女並沒有受到歧視，他們與婚生子女受同等的待遇。 這宗例案的申請人張小姐是一名非婚生子女。她的父母從沒有結婚，母親在她出生後第二天便不幸去世。假若第1(2）（b）段是符合憲法的話，她與父親之間便會被視作不存在“父母與子女的關係”。結果，由於她不屬於“父親或母親是永久性居民”的類別，便不能符合附表1第2（c）段中憑藉血緣成為永久性居民的資格。在其他各方面，入境處處長都接納她是符合資格的。 + 問題在於經正確解釋第24（2）條第三類別後，非婚生子女是否屬於這個類別。如果是的話，附表1第1（2）（b）段把這類子女摒諸這類別之外便屬違憲。 我等在此要處理的是如何解釋一條界定永久性居民類別的條文。在解釋這條文時，必須考慮其背景，包括《基本法》內其他條文，其中第39條規定“國際人權公約”適用於香港的有關規定繼續有效。背景中有兩項相關的原則。其一，《基本法》和“國際人權公約”都奉行平等原則，反對任何歧視。見《基本法》第25條和“國際人權公約”第3及26條。在這方面，顯而易見，香港本地的法例跟隨着近年的明顯趨勢，通常都把非婚生子女與婚生子女同等看待。其二，“國際人權公約”第23（1）條認定家庭是社會之自然及基本的團體單位，應該受到社會和國家的保護。 在解釋有關條文時，緊記這些原則是很重要的。我等必須指出，若入境處處長的論點正確，則婚生與非婚生子女便會得到不平等的待遇，而非婚生子女的母親和非婚生子女的父親也受到不平等的待遇。再者，由於第24（2）條的永久性居民類別並沒有包括配偶在內，故該條款令他們不能闔家團聚。依入境處處長的論點，父親的非婚生子女不會因為與父親的血緣關係而得到永久性居民的身分；這樣對促進某程度的家庭相聚沒有任何幫助。 當緊記這些原則時，並考慮到第24（2）條第三類別的文字，我等認為這個類別明顯包括婚生及非婚生的子女。第 +三類別所界定的是在第一和第二類別列明的“[永久性]居民……所生的……子女”。不論是婚生還是非婚生，這些都是該等居民所生的子女。非婚生子女與婚生子女兩者沒有分別，同樣是該等居民所生的。我等認為這就是該條文顯而易見的意思。因此，附表1第1（2）（b）段把父親的非婚生子女（其後因父母結婚而成為婚生子女者除外）摒諸這類別之外是違反憲法的。 資深大律師馬先生向我等指出，“國際人權公約” 適用於香港的有關規定乃受英國在1976年5月簽署及確認“國際人權公約”時作出的保留條款所限制。關於香港方面，這些保留條款包括有權繼續引用入境方面的法例來監管進入香港、逗留及離開香港的人士。而且，接受“國際人權公約”的條件是該公約並不影響針對無權進入及逗留在香港的人士的法例。但是，依我等之見，這並不會阻止本法院在解釋有關永久性居民類別的憲法條文時，考慮“國際人權公約”的原則，而這些原則是構成條文背景的一部分。 代表入境處處長的資深大律師馬先生基於中國和英國政府在中英聯合聯絡小組（下稱“聯合聯絡小組”）達成的一項協議而提出其論點。我等沒有該協議的任何記錄。有關這項協議，入境處處長所倚賴的證據來自一本該處在1997年4月印制有關香港居留權的小冊子。這本小冊子內有一段文字，其意思與現在已成為法例的附表1第1（2）（b）段相同，就是對一名父親而言，他的子女不包括非婚生子女，除非他與該子女的母親其後結婚，否則該子女不能成為婚生子女。小冊子述明它是“根據現行的入境條例和常規及基於中、 +英雙方在[聯合聯絡小組]中的共同看法”而編訂的。 資深大律師馬先生以《維也納條約法公約》第31條為依據提出其論點。這公約的第31（1）條規定：“條約應依照其用語按上下文並參照條約的目的及宗旨所具有的通常意義善意解釋”。第31（3）（a）條規定： “在考慮上下文之餘，還應一併考慮： 締約國其後所訂關於條約的解釋或適用的任何協議。” 《聯合聲明》附件一第十四部分聲明，現屬於第24（2）條第三類別所指的人士應有居留權。資深大律師馬先生辯稱，在“聯合聯絡小組”達成的協議是其後達成的協議。基於《維也納公約》第31條的規定，在解釋《聯合聲明》這一部分時應依據“聯合聯絡小組”其後達成的協議來解釋，而解釋《基本法》時亦應採用同樣方法。 “聯合聯絡小組”的成立是基於《聯合聲明》附件二：“為了進行聯絡、磋商及交換情況的需要…”。其職能包括就《聯合聲明》的實施進行磋商（附件二第3（a）段）。它是聯絡機構而非權力機構（附件二第6段）。即使其職能包括由兩國政府在其後就有關《聯合聲明》的解釋或其條文的適用訂立協議，而且該協議屬《維也納公約》第31（3）（a）條的範圍，但依我等之見，該協議對本法院須要解釋的問題並無影響。 首先，達成該協議的基礎並不清楚。該協議可能是為了尋求一個實際的解決方法而達成，與解釋條文或其適用的 +問題無關。由於小冊子沒有區分母親的非婚生子女及婚生子女（第1（2）（a）段亦沒有如此區別），故此該協議是否以解釋條文或其適用為基礎實令人疑惑。倘若協議是基於解釋條文或其適用而達成，則父親與子女的關係便有別於母親與子女的關係，而要為這個區別找到一個合理的基礎並不容易。 其次，即使該協議是基於解釋條文或其適用而達成，第31（3）（a）條只規定須將其納入考慮之列。不過，經考慮後本法院可以作出不同的結論。我等認為本法院所作的結論明顯是正確的。 因此，我等裁定附表1第1（2）（b）段乃屬違憲。原訟庭法官和上訴法庭這樣裁定實屬正確。經分割後，第1（2）（b）段應為： “（2）在以下的情況下，視為有父母與子女的關係存在— （b）任何男子與其婚生或…非婚生子女之間的關係，為父親與子女的關係…” 除這些字句外，條文中其他字句予以刪除。 +臨時立法會的問題 資深大律師戴啟思先生為申請人爭辯這個問題時提出，臨時立法會（下稱“臨立會”）並不是《基本法》內所訂明的立法機關，亦不是一個合法組成的機構。任何經“臨立會”通過的法例必先符合普通法的“必需原則”方為有效。他認為“第3號條例”的“追溯條文”並不符合這個原則，因此亦屬無效。代表入境處處長的資深大律師馬先生認為“臨立會”是一個合法組成的機構。他同意“臨立會”並不是《基本法》內訂明的特區立法機關。但當時的情況是，在1997年7月1日之前的立法機關在該日之後便不再延續，套用一般的說法，就是沒有“直通車”。資深大律師馬先生認為，在這情況下“臨立會”是依據全國人民代表大會在1990年4月4日的決定而成立，亦符合該項決定及《基本法》。 有關的決定眾所周知。 在1990年4月4日正式通過的《基本法》規定特區的立法會須由選舉產生（第68（1）條）。第68（2）條規定它的產生方法須根據特區的情況及循序漸進的原則，最終達至全部議員由普選產生這個目標（第68（2）條）。第68（3）條訂明立法會產生的具體方法和法案、議案的表決程序由附件二“香港特別行政區立法會的產生辦法和表決程序”規定。 +第69條規定立法會除第一屆任期為兩年外，每屆任期均為四年。《基本法》附件二對第二屆和第三屆立法會的產生辦法有所規定。至於第一屆，附件二規定立法會須按照“全國人民代表大會關於香港特別行政區第一屆政府和第一屆立法會產生辦法的決定”產生。 該項決定與《基本法》同時在1990年4月4日經全國人民代表大會通過（下稱“1990年決定”）。第一段述明特區第一屆政府和立法會須“根據體現國家主權、平穩過渡的原則產生”。 第2段規定： “ 在1996年內，全國人民代表大會設立香港特別行政區籌備委員會，負責籌備成立香港特別行政區，根據本決定規定第一屆政府和立法會的具體產生辦法。…” 第6段規定第一屆立法會由60名議員組成，其中20名議員由分區直接選舉產生，10名議員由選舉委員會選舉產生，30名議員由功能團體選舉產生。該段進而規定，如1997年7月1日前的立法局的組成符合該決定和《基本法》的有 +關規定，其議員擁護《基本法》、願效忠中華人民共和國香港特別行政區，並符合《基本法》規定之條件者，經籌備委員會確認，即可成為第一屆立法會議員。第6段的最後部分規定第一屆立法會議員的任期為兩年。 顯然，從《基本法》及在《基本法》內提及的“1990年決定”來看，當時預期立法局會乘直通車過渡。 為進行1995年選舉，香港的選舉法例有所改變。中國政府不接受這些改變，堅稱這些改變抵觸《基本法》。中國和英國政府在這個問題上的政治爭議人所共知，而結果是沒有直通車。 1994年8月31日，“人大常委會”決定立法局不會有直通車，而籌備委員會須負責籌備成立特區的有關事宜，並須根據“1990年決定”規定第一屆立法會的具體產生方法及組織第一屆立法會。 1996年3月24日，籌備委員會決定成立臨時立法會。“臨立會”是經由負責推選特區第一屆政府的推選委員會選舉產生，並運作至特區第一屆立法會成立時為止，即不應遲過1998年6月30日。臨立會的指定職責，包括制定對特區的“日常運作必不可少”的法例，以及處理除指定在特區第一屆立法會成立之前規定須由臨時立法會處理之外的其他 +事宜。1996年10日5日，籌備委員會採納了其訂明的方法成立“臨立會”。1997年2月1日，籌委會決定“臨立會”應在1997年6月30日前開始運作，及須在特區成立時確認那些已經通過的條例草案。 《基本法》第160條規定香港特區成立時，香港原有法律除由“人大常委會”宣佈為同《基本法》有抵觸者外，採用為特區法律。1997年2月23日，“人大常委會”議決不採用若干項法例，包括1995年度立法局的選舉法例。 1997年3月14日，全國人民代表大會議決接納籌委會的工作報告，這份報告提及籌委會根據“1990年決定”成立“臨立會”。 1997年5月23日，籌委會採用指定的方式來組成特區第一屆立法會。立法會的選舉須在1998年6月30日前完成，而特區須依據該辦法制訂有關選舉立法會的條例。結果，“臨立會”制訂了這些條例。選舉在1998年5月進行。首屆立法會在1998年7月就職。 《基本法》規定第一屆立法會須按照“1990年決定”來成立。該決定授權籌委會籌備成立特區並根據該決定去規定第一屆政府和立法會的具體產生辦法。我等認為，由籌委會籌組“臨立會”是在“1990年決定”的範圍內，所以也符合《基本法》。該決定第二段所賦予籌備委員會的權力範圍廣濶，足以令籌委會有權成立臨立會。 + 作出“1990年決定”時，預期會有直通車。因此，第一屆立法會的任期為兩年。但是，“1990年決定”的第6段第二部分規定只有在符合若干條件後，才會有直通車。在沒有直通車的情況下，籌委會成立的“臨立會”職能有限，而運作的時間亦有限。“臨立會”只是一暫時性的機構，是填補根據《基本法》及“1990年決定”第6段的第一部分成立第一屆立法會之前出現的立法真空。“臨立會”並不是根據《基本法》及該決定第6段的第一部分所產生的第一屆立法會，代表入境處處長的資深大律師馬先生也同意這點。成立“臨立會”的目的完全為了使第一屆立法會得以產生。因此，“臨立會”的成立與《基本法》是相符的。“臨立會”制訂的選舉法符合籌委會在1997年5月就第一屆立法會的產生所作出的決定。這些選舉法使第一屆立法會可在1998年7月前依據該決定產生。 考慮到我等作出的結論，即“臨立會” 是符合 “1990年決定”的合法組成機構，亦與《基本法》相符，故我等無須回應資深大律師戴啟思先生基於“必須原則”所提出的論點。 +法庭判令 三宗上訴 (終院民事上訴1998年第14、15 及16號) 有關這三宗上訴案，我等就每宗案件作出宣告並頒令如下： A(1) 我等宣告以下部分的《入境條例及規例》乃屬無效，並從該條例或規例中刪除： 第2A（1）條的“在不抵觸第2AA（2）條的條文下”這句。 第2AA（1）（a）條的條文，以下字句除外： “（1） 任何人作為附表1第2（c）段所指的香港特別行政區永久性居民的身分，只可藉其持有以下文件確立— 發予他的有效居留權證明書。” 第53D（3）（a）條的條文，以下字句除外： “（a）發予他的有效居留權證明書。” 《入境規例》附表1內的居留權證明書表格12內第二句句子，即： +“ 本證明書必須附貼於本證明書持有人的有效旅行證件上，方為有效。” 我等宣告在1997年7月16日刊登於憲報，日期為1997年7月11日（1997年憲報第(E)21號）的公告內的第A（1）段及第B段為無效，並從“該公告”中刪除。 我等宣告“第3號條例”第1（2）條為無效，並從該條例中刪除。 關於訟費問題，我等不作判令。各申請人的訟費（包括終院民事上訴1998年第16號入境處處長的上訴中的申請人的訟費）按《法律援助條例及規例》評定。 吳嘉玲小姐及吳丹丹小姐（終院民事上訴1998年第14號） 有關本上訴案，我等頒令如下： B（1） 判令兩名申請人上訴得直。 （2） 判令撤銷入境處處長以下的決定： 約在1997年7月4日扣留申請人的決定， 約在1997年7月4日規定申請人須受擔保約束的決定， 約在1997年8月7日拒絕讓申請人入境的決 +定。 （3）我等宣告兩名申請人乃屬《基本法》第24（2）條第三類別的香港特別行政區永久性居民，她們自1997年7月1日開始便擁有這身分；故此，她們享有居留權。 徐權能先生（終院民事上訴1998年第15號） 資深大律師張先生告知我等現無須撤銷入境處處長的決定，因為處長已同意徐先生有居留權。有關本上訴案，我等頒令如下： C（1）判令申請人上訴得直。 （2）我等宣告申請人乃屬《基本法》第24（2）條第三類別的香港特別行政區永久性居民，他自1997年7月1日開始便擁有這身分；故此，他享有居留權。 張麗華小姐（終院民事上訴1998年第16號） D（1）我等宣告《入境條例》附表1的第1（2）（b）段中以下字句予以保留，其他字句乃屬無效並從該段中刪除： “（2）在以下情況下，視為有父母與子女的關係存在— +（b）任何男子與其婚生或…非婚生子女之間的關係，為父親與子女的關係…” （2）判令撤銷入境處處長以下的決定： （a） 約在1997年7月15日有關申請人不能享有《基本法》第24（3）條所指的居港權的決定， （b） 約在1997年7月15日羈留扣押申請人的決定， （c） 約在1997年7月19日規定申請人須受擔保約束的決定， （d） 約在1997年8月9日決定申請人必先按照《入境條例》第1B部分指定的模式，確立她在該條例附表1第2（c）段中永久性居民的身分，才有權行使居港權。 （3）我等宣告申請人乃屬《基本法》第24（2）條第三類別的香港特別行政區永久性居民，她在1997年7月1日開始便擁有這身分，故此她享有居留權。 + （李國能）  （烈顯倫）  首席法官  常任法官   （沈 澄）  （包致金）  （梅師賢爵士）  常任法官  常任法官  非常任法官   資深大律師張健利先生、資深大律師戴啟思先生及大律師郭瑞熙先生（由賈偉林劉天均律師行延聘並由法律援助署署長委派）代表終院民事上訴案1998年第14和15宗的上訴人及終院民事上訴案1998年第16宗的答辯人 資深大律師馬道立先生及大律師霍兆剛先生（由律政司延聘）代表終院民事上訴案1998年第14和15宗的答辯人及終院民事上訴案1998年第16宗的上訴人 LAW32/99 + + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/zh_cases_hkcfa/1999_HKCFA_73/case.json b/zh_cases_hkcfa/1999_HKCFA_73/case.json new file mode 100644 index 0000000..bfc6ab5 --- /dev/null +++ b/zh_cases_hkcfa/1999_HKCFA_73/case.json @@ -0,0 +1,26 @@ +{ + "Date": "29 Jan, 1999", + "Action No.": "FACV15/1998", + "Neutral Cit.": "[1999] HKCFA 73", + "case_title": "徐權能 訴 入境事務處處長", + "page_title": "徐權能 訴 入境事務處處長 | [1999] HKCFA 73 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "FACV15/1998", + "link": "https://www.hklii.hk/tc/appealhistory/FACV/1998/15" + } + ], + "case_url": "https://www.hklii.hk/tc/cases/hkcfa/1999/73", + "neutral_cit": "[1999] HKCFA 73", + "court_code": "HKCFA", + "content": "FACV000015Y/1998 徐權能 訴 入境事務處處長\nFACV000015Y/1998\n[Chinese Translation 中譯本]\nFACV14/1998\n香港特別行政區\n終審法院\n終院民事上訴1998年第14號\n（原本案件編號：高院民事上訴1997年第216號）\n上訴人\n吳嘉玲\n吳丹丹\n（兩人皆屬未成年人士，\n由父親及起訴監護人吳錫年代表）\n對\n答辯人\n入境事務處處長\nFACV15/1998\n香港特別行政區\n終審法院\n終院民事上訴1998年第15號\n（原本案件編號：高院民事上訴1997年第217號）\n上訴人\n徐權能\n對\n答辯人\n入境事務處處長\nFACV16/1998\n香港特別行政區\n終審法院\n終院民事上訴1998年第16號\n（原本案件編號：高院民事上訴1997年第203號）\n上訴人\n入境事務處處長\n對\n答辯人\n張麗華\n（屬未成年人士，\n由父親及起訴監護人張妙祥代表）\n主審法官：\n終審法院首席法官李國能\n終審法院常任法官烈顯倫\n終審法院常任法官沈澄\n終審法院常任法官包致金\n終審法院非常任法官梅師賢爵士\n聆訊日期：1999年1月6、7、8、11及12日\n宣判日期：1999年1月29日\n_____________\n判 決\n_____________\n終審法院首席法官李國能宣讀判詞：\n1.\n這是本法院作出的一致判決。\n2.\n一直以來，香港居民與中國其他地區的居民都有家庭聯繫。自從內地實行門戶開放政策後，香港與中國的關係變得息息相關，家庭聯繫更形廣泛密切。1997年7月1 日，在中華人民共和國恢復對香港行使主權時，許多在內地出生的中國公民的父母，至少其中一人是擁有香港居留權的香港永久性居民。\n3.\n在本上訴案中，我等所處理的是他們作為香港永久性居民的身分及在港之居留權問題。有關《基本法》的正確解釋問題亦首次在本法院審理。此等問題對於有關人士的將來，以及憲制法律體系在新制度下的發展極為重要。\n有關名稱\n4.\n為方便起見，我等將會使用以下簡稱：中華人民共和國稱為中國；全國人民代表大會常務委員會稱為“人大常委會”；香港特別行政區稱為特區或香港。\n5.\n本判決書中提及的“條款”是指《基本法》內的條款。雖然《基本法》的文本並沒有把每條條款內的小段編號，但按照一般做法把小段編號可方便引述。舉例說，第24條第二小段將稱為第24（2）條。\n6.\n首兩宗上訴案的上訴人及第三宗上訴案的答辯人均為司法覆核程序中的申請人，以下稱為“申請人”。\n7.\n香港特別行政區入境事務處處長以下稱為“入境處處長”。他是首兩宗上訴案的答辯人，亦是第三宗上訴案的上訴人。\n憲制架構\n8.\n《中華人民共和國憲法》第31條規定：\n“ 國家在必要時得設立特別行政區。在特別行政區內實行的制度按照具體情況由全國人民代表大會以法律規定。”\n9.\n全國人民代表大會是最高國家權力機關，它的常設機關是常務委員會（《中國憲法》第57條）。全國人民代表大會及它的常務委員會行使國家立法權（第58條）。\n10.\n《中華人民共和國香港特別行政區基本法》乃根據第31條制定，並由全國人民代表大會通過，於1990年4月4日予以公佈。當香港特別行政區於1997年7月1日成立，即中國恢復對香港行使主權時，《基本法》即成為特區的憲法。\n11.\n《基本法》的序言說明特區是根據第31條成立的：\n“…並按照“一個國家，兩種制度”的方針，不在香港實行社會主義的制度和政策。國家對香港的基本方針政策，已由中國政府在中英聯合聲明中予以闡明。”\n12.\n第一章述明總則，載有十一條條文。第1條規定香港特別行政區是中華人民共和國不可分離的部分。第2條規定全國人民代表大會授權香港特別行政區依照《基本法》的規定實行高度自治，享有行政管理權、立法權、獨立的司法權和終審權。第5條規定特區不實行“社會主義制度和政策”，保持原有的資本主義制度和生活方式，五十年不變。\n13.\n中英政府於1984年12月19日簽訂了關於香港問題的《聯合聲明》，以處理恢復行使主權的事宜。《聯合聲明》自1985年5月27日，即互換批准書之日起生效。中國政府於《聯合聲明》第三段宣示其對香港的基本方針政策，並謂這些基本方針政策將在《基本法》加以規定，並維持五十年不變。有關方針政策並於《聯合聲明》附件一加以具體說明。\n《基本法》\n14.\n《基本法》第24（1）條規定，香港特別行政區居民包括永久性居民和非永久性居民。\n15.\n關於第24（2）條及24（3）條的釋義乃本上訴核心所在。第24（2）條規定，永久性居民為該條文所列出的六個類別的人士，即：\n\"（1）在香港特別行政區成立以前或以後在香港出生的中國公民；\n（2）在香港特別行政區成立以前或以後在香港通常居住連續七年以上的中國公民；\n（3）第（1）、（2）兩項所列居民在香港以外所生的中國籍子女；\n（4）在香港特別行政區成立以前或以後持有效旅行證件進入香港、在香港通常居住連續七年以上並以香港為永久居住地的非中國籍的人；\n（5）在香港特別行政區成立以前或以後第（4）項所列居民在香港所生的未滿二十一周歲的子女；\n（6）第（1）至（5）項所列居民以外在香港特別行政區成立以前只在香港有居留權的人。”\n我等需要處理的是第三類別的人士，以下稱為第24（2）條第三類別人士。\n16.\n第24（3）條規定，永久性居民在香港享有居留權和有資格依照特區法律取得載明其居留權的永久性居民身分證。\n17.\n第24（4）條規定，非永久性居民為有資格依照特區法律取得香港居民身分證，但沒有居留權的人士。\n18.\n第三章的標題為“居民的基本權利和義務”，而第24條是該章內的第一條條文。在第24（1）及（2）條界定了永久性和非永久性居民的身分後，第三章就永久性居民的基本權利和義務，包括居留權訂定條文。此等權利和義務體現了憲法對各種自由的保障，而自由乃香港文明社會的要素。值得留意的是，只有永久性居民才可依法享有選舉權和被選舉權（第26條）。\n19.\n第三章第39條是憲法在保障個人權利方面的重要條款。第39（1）條規定：“《公民權利和政治權利國際公約》……適用於香港的有關規定繼續有效，通過香港特別行政區的法律予以實施。”第39（2）條規定，香港居民享有的權利和自由，除依法規定外不得限制，此種限制不得與第39（1）條規定抵觸。\n20.\n《基本法》第二章的標題為：“中央和香港特別行政區的關係”。第22（4）條規定：\n“ 中國其他地區的人進入香港特別行政區須辦理批准手續，其中進入香港特別行政區定居的人數由中央人民政府主管部門徵求香港特別行政區政府的意見後確定。”\n21.\n第八章的標題為：“本法的解釋和修改”。第158條是關於解釋問題，該條文規定：\n“ 本法的解釋權屬於全國人民代表大會常務委員會。\n全國人民代表大會常務委員會授權香港特別行政區法院在審理案件時對本法關於香港特別行政區自治範圍內的條款自行解釋。\n香港特別行政區法院在審理案件時對本法的其他條款也可解釋。但如香港特別行政區法院在審理案件時需要對本法關於中央人民政府管理的事務或中央和香港特別行政區關係的條款進行解釋，而該條款的解釋又影響到案件的判決，在對該案件作出不可上訴的終局判決前，應由香港特別行政區終審法院請全國人民代表大會常務委員會對有關條款作出解釋。如全國人民代表大會常務委員會作出解釋，香港特別行政區法院在引用該條款時，應以全國人民代表大會常務委員會的解釋為準。但在此以前作出的判決不受影響。\n全國人民代表大會常務委員會在對本法進行解釋前，徵詢其所屬的香港特別行政區基本法委員會的意見。”\n《聯合聲明》\n22.\n《基本法》第24條內有關永久性居民的定義乃源自《聯合聲明》附件一第十四部。該附件具體說明中國的基本方針政策。第十四部規定，列於該部內的各類人士有居留權並有資格按照香港法律獲得載明此項權利的永久性居民身分證。關於其後列於《基本法》第24（2）條的首三類人士，第十四部界定為：\n“在香港特別行政區成立以前或以後在當地出生或通常居住連續七年以上的中國公民及其在香港以外所生的中國籍子女。”\n23.\n第十四部又包括以下條文：\n“ 對中國其他地區的人進入香港特別行政區將按現在實行的辦法管理。”\n香港法例\n24.\n就香港而言，“居留權”一詞是在《聯合聲明》中才初次使用。在《聯合聲明》簽訂後，自1987年起\n《入境條例》\n（香港法例\n第115章\n）\n第2A條\n便載有香港永久性居民所享有的居留權的定義：\n“具有以下權利\n（a） 在香港入境；\n（b） 不會被施加任何逗留在香港的條件，而任何向他施加的逗留條件，均屬無效；\n（c） 不得向他發出遞解離境令；及\n（d） 不得向他發出遣送離境令。”\n附表1列出屬香港永久性居民之各類人士。香港永久性居民可獲發永久性居民身分證，而永久性居民身分證之定義則為：載有“持有人擁有香港居留權”字句的身分證（見\n《人事登記條例》\n（香港法例\n第177章\n）\n第1A條\n）。\n人民入境（修訂）（第2號）條例\n25.\n在1997年7月1日前，\n《入境條例》\n附表1並沒有採用《基本法》\n第24（2）條\n所界定的類別來訂明何類人士屬香港永久性居民。1997年7月1日，臨時立法會制定《人民入境（修訂）（第2號）條例》（以下簡稱“第2號條例”），並以新制定的附表1取代舊附表1。新附表1第2段規定：\n“2.\n香港特別行政區永久性居民\n任何人如屬以下任何一項，即為香港特別行政區永久性居民 -\n（a） 在香港特別行政區成立以前或以後在香港出生的中國公民，而在其出生時或其後任何時間，其父親或母親已在香港定居或已享有香港居留權。\n（b） 在香港特別行政區成立以前或以後通常居於香港連續7年或以上的中國公民。\n（c） （a）或（b）項的香港特別行政區永久性居民在香港以外所生的中國籍子女，而在該子女出生時，其父親或母親已享有香港居留權。\n（d） …\n（e） …\n（f） …”\n26.\n關於該類憑藉血緣成為永久性居民的人士，“第2號條例”第2（c）段規定其父親或母親在其出生時須已享有香港居留權。有關此項要求是否符合憲法的爭論，本法院將會在另一個上訴案中審理。附表1第1（2）段界定父母與子女的關係如下：\n“在以下的情況下，視為有父母與子女的關係存在 -\n（a） 任何女子與其婚生或非婚生子女之間的關係，為母親與子女的關係；\n（b） 任何男子與其婚生子女之間的關係，為父親與子女的關係；如子女屬非婚生子女，只有當該子女其後因父母結婚而獲確立婚生地位，該男子與該子女之間才存在有父親與子女的關係；\n（c） 只有父親或母親與其在香港根據法院命令領養的子女之間的關係，方為父親或母親與領養子女的關係，而該法院命令是指香港法院根據\n《領養條例》\n（\n第290章\n）作出的命令。”\n27.\n由此可見，就非婚生子女而言，上述定義對母親和父親的處理並不一樣。任何女子與其非婚生子女之間，被視為有“父母與子女的關係”存在；然而，任何父親與其非婚生子女之間，則只有當該子女其後因父母結婚而獲確立婚生地位，才被視為有“父母與子女的關係”存在。\n1997年入境（修訂）（第3號）條例\n28.\n1997年7月10日，臨時立法會制定《入境（修訂）（第3號）條例》（以下簡稱“第3號條例”）。該條例當作自1997年7月1日起實施（\n第1（2）條\n），並引進一項計劃處理附表1第2（c）段所指的該類憑藉血緣成為永久性居民的人士。根據此項計劃，任何人依據第2（c）段所獲得的永久性居民的身分，\n只可\n藉其持有以下文件確立\n“（a）發予他的有效旅行證件，和同樣是發予他並且附貼於該旅行證件上的有效居留權證明書；\n（b）發予他的有效特區護照；或\n（c） 發予他的有效永久性居民身分證。”\n（見\n第2AA（1）條\n）。任何持有有效的特區護照或有效的永久性居民身分證的人士，其居留權早已確立。誠如前述，有效的永久性居民身分證的定義是載有“持有人擁有香港居留權”字句的身分證。此外，申請領取護照的條件之一是申請人須持有永久性居民身分證（見\n《香港特別行政區護照條例》\n（香港法例\n第539章\n）\n第3（2）條\n）。因此，雖然法例列出了三種文件，然而，只有（a）項是與要求憑藉血緣取得永久性居民身分的人士有關。此類人士\n只可\n藉持有有效旅行證件\n及\n附貼於該旅行證件上的有效居留權證明書才能確立其身分。以下將簡稱該等文件為“旅行證件”及“居留權證明書”。而提述該等文件時應視為提述有效文件。“第3號條例”載有居留權證明書的法定表格，該表格列明：\n“本證明書持有人在香港特別行政區的居留權已確立。本證明書必須附貼於本證明書持有人的有效旅行證件上，方為有效。”\n此段陳述強調居留權證明書本身不能單獨使用，必須附貼於旅行證件方為有效。\n29.\n第2AA（2）條\n規定：\n“ （2） 任何人憑藉其作為附表1第2（c）段所指的香港特別行政區永久性居民而享有的香港居留權，只在按照第（1）款確立了他作為該類永久性居民的身分時方可行使，而據此當其作為該類永久性居民的身分並無如此確立時，他就本條例而言須視作並不享有香港居留權。”\n所以，若某人並非持有附貼居留權證明書的旅行證件，則視作\n並不享有\n香港居留權。\n30.\n居留權證明書的申請可向入境處處長提出，並須按處長以憲報公告指明的方式提出（見\n第2AB（1）及（2）條\n）。\n第2AB（4）條\n明確規定此類公告不是附屬法例。此條文的作用是使該公告不須受立法局根據\n《釋義及通則條例》\n（香港法例\n第1章\n）\n第34條\n所提出的修訂所限制。若申請人能提出處長所指明的證明，令處長信納申請人屬附表1第2（c）段所指的永久性居民，則處長須發出證明書（\n第2AB（6）條\n）。若處長不信納申請人屬附表1第2（c）段所指的永久性居民，則須拒絕該申請，並將理由通知申請人，以及告知申請人向入境事務審裁處上訴的權利。\n31.\n第2AD條\n是關於上訴的問題。審裁處須“就其所裁斷的事實”裁定上訴人是否屬附表1第2（c）段所指的憑藉血緣成為永久性居民的人士。審裁處作出的決定為最終決定。除非經過審裁處作出決定，以及在審裁處作出決定之前，任何人不得申請司法覆核（\n第2AE條\n）。\n32.\n申請人不得在他留在香港的任何時間內提出上訴（\n第2AD（3）條\n）。若入境處處長已向他發出遣送離境令，他不得以其享有居留權為理由，就該命令向審裁處上訴。為了強化上述計劃：即他只可藉持有附貼居留權證明書的旅行證件確立其身分，“第3號條例”引入\n第53D（3）條\n，該條文規定，除非上訴人的身分已按照\n第2AA（1）條\n所訂明的方式確立，否則審裁處不得以上訴人憑藉附表1第2（c）段所指的身分而享有居留權為理由，就該遣送離境令的上訴判上訴人得直。\n33.\n\"第3號條例\"訂立了一些新的刑事罪行，包括為報酬而申請居留權證明書、為取得證明書作出虛假陳述、偽造證明書、使用及管有偽造的或經改動的證明書等罪行。然而，追溯條文並不適用於新的罪行，這些罪行只在立例後才生效。\n公告\n34.\n該份於1997年7月16日在憲報刊登、日期為1997年7月11日的公告（以下稱為“該公告”），公佈入境處處長已訂立列於“該公告”內之條文。關於在申請居留權證明書時居住在中國內地的人士，“該公告”指明其申請必須“通過當地的公安廳出入境管理處提出”（甲（i）段）。此外，“該公告”又述明，上述人士根據中國內地現行法律向公安廳出入境管理處所遞交的到香港定居的‘前往港澳通行證’申請書，可視為居留權證明書的申請書（見乙段）。就申請居留權證明書而言，在以下情況下，任何人士如在緊接進入香港境內之前通常居於內地，則被視為在其逗留在香港的期間是居住在內地：（i）若他未獲准許而在香港入境，後又未獲入境處處長授權的情況下在香港逗留，或（ii）同樣，若他獲准許在香港入境，並在如此入境後受逗留條件所規限（丙段）。“該公告”（丁段）又列明申請書須載有何類陳述和資料。若申請人居住在中國以外地方，其申請則須通過當地中國大使館或領事館或以郵遞方式向入境處處長提出，而若居住在台灣或澳門，則規定以郵遞方式提出（甲（ii）及（iii）段）。\n35.\n“該公告”提及與申請出境通行證有關的內地法律。內地法律有管制措施規管中國公民往來香港。現行的內地法律是於1985年11月22日公佈的《公民出境入境管理法》\n第17條\n，以及於1986年12月25日公布的《中國公民因私事往來香港地區或者澳門地區的暫行管理辦法》。中國公民出境須取得出境批准。公安廳出入境管理處是負責發出通行證之機關。一般所指的單程證是為前來定居人士而發，而單程證的簽發受定額制度規限。《暫行管理辦法》\n第5條\n規定：\n“ 內地公民因私事前往香港、澳門定居，實行定額審批的辦法，以利於維護和保持香港和澳門的經濟繁榮和社會穩定。”\n一般所指的雙程證，則是發給非為定居而來港的人士。\n36.\n根據代表入境處處長作出並送交法院的誓章證詞所載，內地機關已實行單程證定額制度多年，而定額數目亦時有改變。現時定額為每天150名。據該誓章證詞所載，情況如下：\n“ ．．．．內地居民前來定居的合法途徑，仍然是必須取得單程證。公安部出入境管理廳在各省、市或縣的有關辦事處或部門負責決定是否批准發出單程證。入境事務處並無參與涉及輪候單程證之事宜，亦無參與分配或批准發出單程證之事宜，該等事宜是由公安部出入境管理廳單方面負責，而且情況一向如此。關於每天的單程證定額數目，雖然內地機關會徵詢香港機關的意見，然而最終決定仍然是由內地機關作出。換言之，問題並不僅是根據香港法律某人是否有權在香港入境或居留，而是有意在香港入境或居留的內地居民也必須符合關於在中國離境適用的內地法律。”\n上述誓章證詞對有關機關的描述與“該公告”之描述略有不同。本法院將會採用“該公告”之描述，以下稱之為“內地出入境管理處”。此誓章證詞又指出，截至1997年年中為止已約有66,000名在二十歲以下的人士提出單程證申請，聲稱屬\n第24（2）條\n第三類別以內的人士。\n37.\n我等注意到內地法律規定中國公民必須得到出境批准方可出境；而與本上訴有關的是上述關於中國公民從內地前來香港（即中國的另一部分）的內地法律。\n“第3號條例 ”計劃的實行\n38.\n就內地居民聲稱根據\n《入境條例》\n新附表1第2（c）段憑藉血緣而擁有永久性居民身分一事，本法院現闡述有關計劃之運作：\n（1） 內地居民須要通過其在中國內地所居地的“內地出入境管理處”向入境處處長申請居留權證明書。向“內地出入境管理處”所遞交的單程證申請書，可視為居留權的申請書。\n（2） 經確定其身分、國籍及其父母的婚姻是否有效後，“內地出入境管理處”便會將其申請書送交入境處處長處理。若入境處處長接納其申請，則會發出居留權證明書，而證明書亦會送交內地出入境管理處。\n（3） 他要受單程證定額制度所規限。內地機關負責實行該定額制度，並決定是否發出單程證。在“內地出入境管理處”批准發出單程證給他時，即會將其居留權證明書附貼於該單程證上。這單程證便是“第3號條例”引入的計劃所預計的有效旅行證件。\n（4） 他的身分\n只可\n藉其持有附貼居留權證明書的單程證確立。若沒有該單程證，則須視作不享有居留權。即使入境處處長信納他憑藉血緣取得永久性居民身分並已發出居留權證明書（證明書會送交“內地出入境管理處”），情況也是如此。按照此計劃，單靠該證明書並不足以確立其身分，其身分只可藉持有附貼該證明書的單程證才能確立。\n（5） 他不可來香港提出申請，而必須向其所居地的“內地出入境管理處”提出。就此計劃的運作而言，若他身處香港，則視為在其逗留在香港的期間是居住在中國內地。他不得藉提出證據以證明其身分來抗拒根據\n《入境條例》\n發出的遣送離境令。他\n只可\n藉持有附貼居留權證明書的單程證才能確立其身分。\n申請人\n39.\n各申請人的案情可作簡單陳述如下：\n吳嘉玲小姐及吳丹丹小姐（終院民事上訴1998年第14號）\n40.\n她們兩人是姊妹，是內地出生的中國籍人士。她倆分別於1987年及1989年出生，當時她們的父親已是在香港通常居住連續七年以上的中國公民。他在1976年來港，而兩名申請人則於1997年7月1日沒有通過入境管制站而進入本港。1997年7月4日她們向入境處報到，堅稱根據《基本法》\n第24（2）條\n第三類別擁有居留權，但她們的權利未獲入境處處長承認。入境處將她們拘捕，其後批准他們領取擔保書外出。\n徐權能先生（終院民事上訴1998年第15號）\n41.\n他是內地出生的中國籍人士，在1978年出生時，他父親已是在香港通常居住連續七年以上的中國公民，並早於1962年來港，而申請人則於1997年7月1日沒有通過入境管制站而進入本港。1997年7月3日，他向入境處報到，並堅稱根據《基本法》\n第24（2）條\n第三類別擁有居留權，但他的權利未獲入境處處長承認。入境處將他拘捕，其後批准他領取擔保書外出。\n張麗華小姐（終院民事上訴1998年第16號）\n42.\n她是內地出生的中國籍人士，在1989年出生時，她父親已是在香港通常居住連續七年以上的中國公民，並早於1967年來港。她不是父母所婚生的，其母親在她出生後的第二天便不幸去世。1994年12月，張小姐持雙程證來港。1995年1月，她的雙程證有效期屆滿，之後一直逾期居留。1997年7月15日，她向入境處報到，並堅稱根據《基本法》\n第24（2）條\n第三類別擁有居留權。但她的權利未獲入境處處長承認。入境處將她拘捕，她被拘留4日後，於1997年7月19日獲批准領取擔保書外出。\n申請人之立場\n43.\n兩名吳氏姊妹及徐先生均在1997年7月1日抵港，而張小姐則於此日之前抵步。除了徐先生外，她們均為未成年人，但他們的實際年齡對本案並不重要。我等明瞭現時大約有1,000至1,500名於1997年7月10日之前抵港的人士聲稱他們均屬《基本法》\n第24（2）條\n第三類別所述之永久性居民。\n44.\n就吳氏姊妹及徐先生而言，入境處處長承認他們均屬《基本法》\n第24（2）條\n第三類別所述之永久性居民，在他們出生時他們的父母其中一人（即父親）屬《基本法》\n第24（2）條\n第二類別所述之永久性居民，而他們是這些居民“在香港以外所生的中國籍子女”，他們的父親則是在香港通常居住連續七年以上的中國公民。\n45.\n至於張小姐，入境處處長則以她是非婚生為理由，稱她不屬《基本法》\n第24（2）條\n所述之永久性居民。但若非持有此論點，則入境處處長會承認張小姐屬《基本法》\n第24（2）條\n第三類別所述之永久性居民。她亦是在香港以外出生之中國籍人士，而她出生時，其父親屬\n第24（2）條\n第二類別所述之永久性居民。\n46.\n他們的父親已分別在港居留一段頗長時間。徐先生的父親早於1962年來港。張小姐的父親於1967年抵港，而吳氏姊妹的父親則於1976年到港。雖然\n第24（2）條\n第二類別所述的永久性居民必須為在香港通常居住連續七年以上的中國公民，但我等應該留意到本案所涉及的申請人的父親在香港居住已遠遠超過七年，並且早已成為我們社會的一分子。\n47.\n申請人堅稱他們屬\n第24（2）條\n所述之永久性居民，故享有\n第24（3）條\n所賦予之居留權。張小姐堅稱她雖屬非婚生，但這不應影響她的永久性居民的身分。\n入境處處長的立場\n48.\n入境處處長所持的立場為申請人受“第3號條例”引進的計劃所限制。根據這項計劃，憑藉血緣而享有之永久性居民身分只能以附貼有居港權證明書的單程通行證予以確立。上述申請人無一持有這種通行證，更遑論是附貼有此種居港權證明書的通行證。根據“第3號條例”\n第2AA（2）條\n，他們須視作不享有居留權。根據這項計劃，他們不能在香港逗留，必須返回內地向“內地出入境管理處”申請居權證，而向該管理處提出之單程證申請可視為居權證申請。有關人士只能持有附貼有這種居權證的單程證才可確立其永久性居民身分，而在此身分獲確立前，他須視作不享有居留權。\n49.\n儘管入境處處長信納申請人（張小姐除外）屬\n第24（2）條\n第三類別所述之永久性居民，亦同時承認若張小姐不是非婚生子女，她也屬\n第24（2）條\n第三類別所述之永久性居民，但他們也因上述理由而不享有居留權。此外，儘管申請人在1997年7月10日計劃實施之前已扺港，情況亦是一樣。入境處處長堅稱，由於在1997年7月10日制定之“第3號條例”當作自1997年7月1日起實施，故申請人仍受該項計劃所限制。\n透過司法覆核提出異議\n50.\n各申請人提出司法覆核，要求法院作出多項宣告及命令，以推翻入境處處長的決定。這些均屬例案。\n原訟庭法官之判決\n51.\n原訟庭法官（祈彥輝）只在非婚生子女問題上裁定張小姐勝訴，在其他事項上則裁定各申請人均敗訴，並撤銷他們的司法覆核申請。（見[1997]《HKLRD》1081及[1997]3《HKC》64）。\n上訴法庭之判決\n52.\n各申請人向上訴法庭提出上訴。就張小姐一案而言，入境處處長就非婚生子女問題之判決提出上訴，而張小姐則就司法覆核之判決交相上訴。\n53.\n由高等法院首席法官陳兆愷、上訴法庭副庭長黎守律及副庭長馬天敏組成之上訴法庭維持原訟庭法官之判決。他們聆聽上訴後，分兩部分作出判決。第一部分處理“第2號條例”及“第3號條例”所產生的問題（見[1998]1《HKC》617），而第二部分則處理臨時立法會的合法性問題（見[1998]1《HKLRD》772及[1998]2《HKC》382）。關於第一部分的問題，上訴法庭維持原訟庭法官就“第2號條例”判張小姐勝訴之判決，以及維持就“第3號條例”的合法性問題判入境處處長勝訴之判決。至於追溯條文方面，上訴法庭則以多數裁定此條文有效，但卻不適用於1997年7月1日前抵港之人士。至於第二部分之問題，上訴法庭裁定法庭受較早前該庭在\n香港特別行政區訴馬維騉\n一案的判決所約束（見[1997]《HKLRD》761及[1997] 2《HKC》315（1997年7月））。上訴法庭在該案裁定臨時立法會乃獲合法授權而成立。\n54.\n上訴法庭作出判決後，徐先生獲發單程證，並以此證離開及再次進入本港。但本案的關鍵並非在此。就本上訴而言，處理徐先生的案件時，應把他當作仍在提出司法覆核申請時的階段，並無持有單程證般處理。\n55.\n上訴法庭批准申請人向本法院上訴。關於張小姐一案方面，入境處處長就非婚生子女問題之判決提出上訴，而張小姐則交相上訴。至於其他案件，則屬各申請人提出之上訴。\n56.\n祈彥輝法官及上訴法庭用心撰寫的判詞，特別是高等法院首席法官陳兆愷的判詞，對我等幫助很大。\n所爭議之問題\n57.\n在本上訴案中所爭議之問題如下：-\n（1） 終審法院在審理這些案件時是否有司法管轄權解釋《基本法》的有關條款，或是否必須根據《基本法》\n第158條\n請全國人民代表大會常務委會對有關條款作出解釋（“提交人大解釋問題”）。\n（2） 引進居權證計劃的“第3號條例”是否違憲，以及倘若違憲，則“第3號條例”在那方面違憲（““第3號條例”是否違憲問題”）。\n（3） “第3號條例”\n第1（2）條\n這項賦予追溯力的條文將該條例當作自1997年7月1日起實施是否符合憲法（“追溯效力問題”）。\n（4） “第2號條例”引進的附表1第1（2）（b）段是否違憲。該項條文的後果是，如果一名子女屬非婚生，則只有因父母其後結婚而獲確立婚生地位後，父親與該子女之間才可視為有“父母與子女的關係”存在，並僅以此情況為限（“非婚生子女問題”）。\n（5） 臨時立法會是否一個合法組成的機構（“臨時立法會問題”）。倘若臨立會不是一個合法組成的機構，則由其制定之“第3號條例”亦順理成章是違憲的。\n法律代表\n58.\n在本法院以及下屬法院進行訴訟時，申請人均由法律援助署以公帑延聘律師出任他們的法律代表。本案在下屬法院審理時，申請人是由資深大律師張健利代表，而有關臨時立法會問題則由資深大律師戴啟思代表。至於入境處的法律代表則為資深大律師馬道立。他們以及由他們領導的法律代表團對本法院提供了相當大的幫助，我等在此謹表謝意。\n憲法賦予法院的司法管轄權\n59.\n在處理上述受爭議的問題前，我等首先說明憲法賦予香港特別行政區法院的司法管轄權，然後再為解釋《基本法》制定恰當的處理方法；這兩點均至為重要。\n60.\n香港特區享有獨立的司法權和終審權（《基本法》\n第19（1）條\n），而特區各級法院是特區的司法機關，行使特區的審判權（《基本法》\n第80條\n）。\n61.\n在行使《基本法》所賦予的司法權時，特區的法院有責任執行及解釋《基本法》。毫無疑問，香港法院有權審核特區立法機關所制定的法例或行政機關之行為是否符合《基本法》，倘若發現有抵觸《基本法》的情況出現，則法院有權裁定有關法例或行為無效。法院行使這方面的司法管轄權乃責無旁貸，沒有酌情餘地。因此，若確實有抵觸之情況，則法院最低限度必須就該抵觸部分，裁定某法例或某行政行為無效。雖然這點未受質疑，但我等應藉此機會毫不含糊地予以闡明。行使這方面的司法管轄權時，法院是按《基本法》執行憲法上的職務，以憲法制衡政府的行政及立法機構，確保它們依《基本法》行事。\n62.\n一直引起爭議的問題是，特區法院是否具有司法管轄權去審核全國人民代表大會或其常務委員會的立法行為（以下簡稱為“行為”）是否符合《基本法》，以及倘若發現其抵觸《基本法》時，特區法院是否具有司法管轄權去宣佈此等行為無效。依我等之見，特區法院確實有此司法管轄權，而且有責任在發現有抵觸時，宣佈此等行為無效。關於這點，我等應藉此機會毫不含糊地予以闡明。\n63.\n根據《中國憲法》（\n第57\n及\n58條\n），全國人民代表大會是最高國家權力機關，其常設機關是常務委員會，二者行使國家立法權，故此其行為乃屬主權國行使主權的行為。特區法院審核上述二者之行為是否符合《基本法》的司法管轄權是源自主權國，因為全國人民代表大會是根據《中國憲法》\n第31條\n而制定特區的《基本法》的。《基本法》既是全國性法律，又是特區的憲法。\n64.\n與其他憲法一樣，《基本法》既分配權力，也界定權限，並且訂明各項基本權利及自由。與其他憲法一樣，任何抵觸《基本法》的法律均屬無效並須作廢。根據《基本法》，特區法院在《基本法》賦予特區高度自治的原則下享有獨立的司法權。當涉及是否有抵觸《基本法》及法律是否有效的問題出現時，這些問題均由特區法院裁定。因此，全國人民代表大會或其常務委員會的行為是否抵觸《基本法》這問題由特區法院裁定，但當然特區法院所作的決定亦必須受《基本法》的條款限制。\n65.\n鑑於制定《基本法》是為了按照《聯合聲明》所宣示和具體說明的內容，落實維持香港五十年不變的中國對香港的基本方針政策，上述論點便更具說服力。《基本法》\n第159（4）條\n訂明《基本法》的任何修改均不得抵觸既定的基本方針政策。為了行使司法管轄權去執行及解釋《基本法》，法院必須具有上述的司法管轄權去審核全國人民代表大會及其常務委員會的行為，以確保這些行為符合《基本法》。\n66.\n香港特別行政區訴馬維騉\n一案是涉及普通法在新制度下的繼續存在以及臨時立法會的合法性問題。上訴法庭（由高等法院首席法官陳兆愷、上訴法庭副庭長黎守律及馬天敏組成）接納政府的陳詞，裁定由於全國人民代表大會的行為是主權行為，因此特區法院並不擁有司法管轄權去質疑這些行為的合法性。上訴法庭並裁定特區法院的司法管轄權只局限於審核是否存在主權國或其代表的行為（而非行為的合法性）。我等認為上訴法庭就特區法院的司法管轄權所作出的這項結論是錯誤的，上文所述的立場才是正確的。\n67.\n上訴法庭基於《基本法》\n第19（2）條\n作出其結論。\n第19（2）條\n規定：-\n“ 香港特別行政區法院除繼續保持香港原有法律制度和原則對法院審判權所作的限制外，對香港特別行政區所有的案件均有審判權。”\n政府在該案所陳述的論據為1997年7月1日前，香港法院也不能質疑英國國會通過的法例是否違憲，即是否違反英國的不成文憲法或香港作為殖民地的憲法文件《英皇制誥》。因此，這是《基本法》\n第19（2）條\n所設想的“原有法律制度和原則”對香港法院審判權所作的一種限制。所以政府辯稱在1997年7月1日後，這限制同樣適用於全國人民代表大會的行為。上訴法庭接納了政府的論據。\n68.\n把舊制度與此相提並論是對問題有所誤解。1997年7月1日前，香港是英國殖民地。根據普通法，英國國會擁有最高權力為香港立法而香港法院不能質疑這項權力。\n69.\n基於已申述的理由，在新制度下，情況截然不同。《基本法》\n第19（2）條\n規定“原有法律制度和原則”對憲法賦予法院的司法管轄權有所限制。但這條款不能把在舊制度下純粹與英國國會法例有關的限制引進新的制度內。\n70.\n我等應指出代表入境處處長的資深大律師馬先生在本法院聆訊本案時已不再堅持政府較早前在\n香港特別行政區訴馬維騉\n一案所持的立場。他實際上同意特區法院擁有我等所述之司法管轄權去審核全國人民代表大會及其常務委員會的行為是否符合《基本法》，並且同意該案在這方面的判決與我等所闡述之立場有抵觸之處，實屬錯誤。\n71.\n我等亦應指出高院首席法官陳兆愷在本案就臨時立法會問題作出判決時表示，他在\n香港特別行政區訴馬維騉\n一案就特區法院司法管轄權所發表的意見只是針對該案的情況而言，不可理解為全國人民代表大會通過的法律及其行為凌駕《基本法》；他又表示他在該案把特區法院與殖民地時代法院相提並論可能不大恰當，並謂可能在某些適當的案件中，特區法院有司法管轄權去審核影響特區的全國人民代表大會的行為及其通過的法律。\n72.\n對法院的司法管轄權所作出的任何限制必須以《基本法》為依據。如上文所述，《基本法》\n第19（2）條\n提及繼續保持香港原有法律制度和原則對法院審判權所作的限制。\n第19（3）條\n便提供了一個例子。\n第19（3）條\n規定：-\n“香港特別行政區法院對國防、外交等國家行為無管轄權。.....”\n《基本法》\n第158條\n亦規限終審法院不得在該條款所指的情況下，對《基本法》“關於中央人民政府管理的事務或中央和香港特別行政區關係”的條款進行解釋，且終審法院有責任請全國人民代表大會常務委員會對有關條款作出解釋。稍後討論到有關“提交人大解釋的問題”時，我等會再處理《基本法》\n第158條\n的問題。\n有關解釋《基本法》的處理方法\n73.\n首先我等必須認識及了解這份文件的特性。《基本法》是為貫徹獨一無二的“一國兩制”原則而制定的憲法性文件，具有不可輕易修改的地位。制定憲法性文件時，一般都會採用涵義廣泛和概括性的語言。憲法是一份具有靈活性的文件，旨在配合時代轉變和適應環境的需要。\n74.\n解釋《基本法》這樣的憲法時，法院均會採用考慮立法目的這種取向，而這方法亦已被廣泛接納。法院之所以有必要以這種取向來解釋憲法，是因為憲法只陳述一般原則及表明目的，而不會流於講究細節和界定詞義，故必然有不詳盡及含糊不清之處。在解決這些疑難時，法院必須根據憲法本身及憲法以外的其他有關資料確定憲法所宣示的原則及目的，並把這些原則和目的加以貫徹落實。因此，在確定文件的真正含義時，法院必須考慮文件的目的和有關條款，同時也須按文件的背景來考慮文本的字句，而文件的背景對解釋憲法性文件尤為重要。\n75.\n關於目的方面，制定《基本法》的目的是按照《聯合聲明》所闡述及具體說明的中國對香港的基本方針政策，在“一國兩制”的原則下成立與中華人民共和國不可分離的香港特別行政區，並實行高度自治。在確定《基本法》某項條款的目的時，法院可考慮該條款的性質，或《基本法》的其他條款，或參照包括《聯合聲明》在內的其他有關外來資料。\n76.\n有關文本所使用的字句，法院必須避免採用只從字面上的意義，或從技術層面，或狹義的角度，或以生搬硬套的處理方法詮釋文意。法院必須考慮文本的背景。《基本法》某項條款的文意可從《基本法》本身及包括《聯合聲明》在內的其他有關外來資料中找到。法院也可藉用語傳統及文字慣用法去了解所用的文字的意思。\n77.\n《基本法》第三章一開始便界定包括永久性居民及非永久性居民在內的香港居民類別的定義，接着訂明香港居民的權利和義務，其中包括永久性居民享有居留權。界定了香港居民類別的定義後，《基本法》第三章接着列明受憲法保障的各項自由；這些自由是兩制中香港制度的重心所在。為了令香港居民充分享有上述憲法所保障的各項基本權利及自由，法院在解釋第三章內有關那些受保障的權利及自由的條文時，應該採納寬鬆的解釋。\n78.\n然而，法院在解釋有關界定香港居民定義的條款，特別是關於永久性居民類別的條款時（有別於解釋該等居民的權利自由等憲法保障），則只應參照任何可確定的目的及背景來考慮這些條款的字句。背景包括《基本法》的其他條款。適用於香港並根據\n第39條\n繼續有效的《公民權利和政治權利國際公約》（“國際人權公約”）的有關條文，以及任何從該公約歸納出來的有關原則，尤其有助於解釋這些條款的字句。\n79.\n上文所列關於在解釋《基本法》時法院所應採納的原則，實非詳盡無遺，亦不可能一一盡列。憲法文件的詮釋跟其他文件的詮釋一樣，主要是針對具體問題。一旦出現詮釋問題時，法院便會處理這些問題所帶來的疑難，並在有需要時訂立一些原則加以解決。\n80.\n我等現轉而處理所爭議的問題。\n提交人大解釋問題\n81.\n《基本法》\n第158條\n已在本判決書的較前部分原文照錄。\n第158（1）條\n規定《基本法》的解釋權，屬於全國人民代表大會常務委員會。\n第158（2）條\n規定“人大常委會”“授權”特區法院“在審理案件時對本法關於香港特別行政區自治範圍內的條款自行解釋”。顯而易見，這包含了憲法上的授權，而雙方大律師也接納這論點。我等認為，“自行”二字強調了特區的高度自治及其法院的獨立性。\n82.\n但特區法院的司法管轄權並非局限於解釋這類條款。因為，\n第158（3）條\n規定特區法院在審理案件時對《基本法》的“其他條款也可解釋”。\n83.\n然而對終審法院來說，這項司法管轄權存在一種規限。如果特區法院：\n“ 在審理案件時需要對本法關於中央人民政府管理的事務或中央和香港特別行政區關係的條款進行解釋，而該條款的解釋又影響到案件的判決，在對該案件作出不可上訴的終局判決前，應由香港特別行政區終審法院請全國人民代表大會常務委員會對有關條款作出解釋。”\n由於只有終審法院才能對案件作出不可上訴的終局判決，所以這條款規限了終審法院的司法管轄權。當符合上述指定的條件時，終審法院便有責任請“人大常委會”解釋有關的條款。\n84.\n第158（3）條\n接著規定當“人大常委會”對該等條款作出解釋，“香港特別行政區法院在引用該條款時，應以“人大常委會”的解釋為準。但在此以前作出的判決不受影響。”\n85.\n第158（4）條\n規定“人大常委會”有責任在決定如何解釋有關條款前，先徵詢其所屬的《基本法》委員會的意見。《基本法》委員會是全國人民代表大會在1990年4月4日會議通過設立的。當日的議決是《基本法》委員會為“人大常委會”下設的工作委員會，由十二名成員組成；由“人大常委會”任命內地和香港人士各六名，其中包括法律界人士。香港委員須由香港特別行政區行政長官，立法會主席和終審法院首席法官聯合提名。\n86.\n根據《基本法》\n第158條\n，香港法院是在“審理案件”時才有權解釋《基本法》條款。言下之意即是當法院並非在審理案件時，便沒有這項權力。這情況反映出我們的制度內一套確立已久的原則：法院的職責是審判裁決，而非提供參考意見。特區法院有以下的解釋權。《基本法》\n第158條\n提及：\n（a） 屬特區自治範圍內的條款，及\n（b） 《基本法》的其他條款。在這些其他條款內，有兩種屬範圍之外的類別，即涉及（i）中央人民政府管理的事務，或涉及（ii）中央和香港特別行政區關係的條款。我等將（i）或（ii）條款簡稱為“範圍之外的條款”。\n87.\n根據\n第158條\n，終審法院以下的各級法院，均有權解釋（a）及（b）項內的條款，包括“範圍之外的條款”。終審法院有權解釋（a）項內的條款，及（b）項內的其他條款，但不包括“範圍之外的條款”。\n88.\n因此，終審法院以下的各級法院，有權解釋所有的《基本法》條款，不受任何限制。唯一受限制的是終審法院的司法管轄權。\n第158（2）條\n的措辭強調特區的各級法院均有權“自行”解釋在特區自治範圍內的《基本法》條款。\n89.\n以終審法院來說，當符合以下兩項條件時，便有責任將有關條款提交“人大常委會”解釋：\n（1）第一，當有關的《基本法》條款（a）關乎中央人民政府管理的事務，或（b）關乎中央和特區的關係，即為“範圍之外的條款”。以下簡稱此條件為“類別條件”。\n（2）第二，當終審法院在審理案件時，有需要解釋這些條款（即“範圍之外的條款”），而這些條款的解釋將會影響案件的判決。以下簡稱此條件為“有需要條件”。\n90.\n我等認為在審理案件時，唯獨終審法院才可決定某條款是否已符合上述兩項條件；也只有終審法院，而非全國人民代表大會，才可決定該條款是否已符合“類別條件”，即是否屬於“範圍之外的條款”。代表申請人的大律師及代表入境處處長的大律師也接納這個論點。\n91.\n如果該條款不符合“類別條件”，事情就會告一段落。就算本法院需要解釋該有關條款，而該項解釋又會影響案件的判決，該條款也會因為不屬於“範圍之外的條款”而不能符合“有需要條件”。\n92.\n如果該條款符合“類別條件”，也只可由終審法院決定有關案件是否符合“有需要條件”。\n93.\n如果終審法院認為該“範圍之外的條款”已符合上述兩項條件，便必須請“人大常委會”解釋有關之條款。我等強調提交“人大常委會”解釋的是某些特定的“範圍之外的條款”而非一般性的解釋。\n94.\n誠如前述，入境處處長接納，若張小姐不是因為非婚生子女這點，她與其他申請人一樣都屬《基本法》\n第24（2）條\n第三類別的永久性居民。\n第24（3）條\n規定永久性居民有居留權。根據“第3號條例”引進的居權證計劃，申請人除非擁有內地簽發的單程證，而單程證上又附貼了由入境處處長簽發的居留權證明書，否則並不享有居留權。入境處處長請求法院裁定“第3號條例”是符合憲法的，原因是《基本法》\n第24條\n受\n第22（4）條\n規限。\n第22（4）條\n規定中國其他地區的人士若要進入特區，必須辦理批准手續。這條款還進一步規定進入特區定居的人數，要由中央人民政府主管部門徵求特區政府的意見後確定。入境處處長的論點是由於申請人是\n第22（4）條\n所述的來自中國其他地區的人士，一定要先得到內地當局批准才可進入特區，而這規定也成為居權證計劃的憲法基礎，即申請人必須獲得以單程證形式簽發的出境批准，才可享有居留權。\n95.\n代表入境處處長的資深大律師馬先生指出\n第22（4）條\n是在《基本法》的第二章內，而第二章的標題是“中央和香港特別行政區的關係”。他認為\n第22（4）條\n是“範圍之外的條款”，原因是這條款符合《基本法》\n第158條\n所述兩種“範圍之外的類別”。他認為出境批准是關乎中央人民政府管理的事務，而人民由內地進入特區則關乎中央和香港特區的關係。根據入境處處長的論點，本法院在審理本案時，必須解釋\n第22（4）條\n。所以，他認為這條款符合了“類別條件”及“有需要條件”。\n96.\n資深大律師馬先生清楚指出入境處處長並非要求法院根據《基本法》\n第158條\n，將這條款提交“人大常委會”解釋，但他一定要作出這些陳詞，令本法院能夠考慮應否將該條款提交“人大常委會”。我等覺得代表入境處處長的資深大律師馬先生作出這些陳詞是恰當的，因為這是關乎法院在憲法上的司法管轄權。\n97.\n雖然資深大律師馬先生同時依賴該兩種“範圍之外的類別”，但以目前處理的問題來說，我等會純粹基於\n第22（4）條\n涉及中央政府與特區的關係而假設\n第22（4）條\n為一項“範圍之外的條款”。\n98.\n我等面對的問題關鍵在於法院在考慮該條款是否符合“類別條件”時，應該採用何種考慮原則。\n99.\n資深大律師馬先生認為當（a）法院在解釋X條款時（以本案來說，即《基本法》\n第24條\n），而該條款屬關於特區自治範圍內的條款，因而並非“範圍之外的條款”，但法院發覺（b）屬關於範圍之外的Y條款（以本案來說，即\n第22（4）條\n）是否與解釋X條款有關是一個可爭論的問題，則在這情況下，法院應根據\n第158條\n，將這條款提交“人大常委會”。\n100.\n我等現在要考慮的是應否根據\n第158條\n將該條款提交“人大常委會”。現階段本法院需要處理的是，有關論點是否一個可爭論的問題，而非就解釋的問題作出決定。如果該條款須要提交“人大常委會”，便會由“人大常委會”處理；如果不須提交的話，便會由本法院處理。任何論點如果是顯而易見的歪理，當然便沒有爭論餘地。如果本法院在現階段決定這論點是不可爭論的話，提交的問題便告一段落。如果法院決定這論點是可爭論的話，便會進一步考慮是否符合“類別條件”及“有需要條件”。就本案來說，一項“範圍之外的條款”(\n第22(4)條\n)是否與解釋一項“非範圍之外的條款”(\n第24條\n)有關是一個可爭論的問題。\n101.\n在決定應採用何種考慮原則來決定該條款是否符合“類別條件”時，法院須要採用“立法目的”這一原則。《基本法》\n第158條\n其中一個重要的目的是“人大常委會”授權香港法院，包括終審法院，“自行”解釋《基本法》中屬“範圍之外的條款”以外的各章節，特別是關於屬特區自治範圍內的條款。這是特區高度自治的必不可少的部分。\n102.\n從上述的觀點出發，讓我等討論應採用何種考慮原則。X條款（這裡指\n第24條\n）是關於特區自治範圍內的條款，在作出解釋時，必須考慮其背景，這自然包括《基本法》的其他條款，而這些條款可能在某幾方面與解釋X條款有關。例如這些條款可能透過增減修訂等形式來規限X條款，或潤飾X條款的意思，又或提供指標來解釋X條款。根據資深大律師馬先生的論點，當一項“範圍之外的條款”（這裡指\n第22（4）條\n）如上述般與X條款有關，便須提交“人大常委會”。提交的主題不是要求解釋X條款，因它並非“範圍之外的條款”；馬先生的論點似是：提交的主題是請“人大常委會”解釋該“範圍之外的條款”，而該項解釋只限於涉及X條款的解釋。這樣的提交，會收回了本法院對解釋《基本法》中關於屬特區自治範圍內的條款（X條款）的司法管轄權。我等認為這樣做會嚴重削弱特區的自治，而且是不對的。\n103.\n我等認為，在考慮該條款是否符合“類別條件”時，應採用代表申請人的資深大律師張先生提出的考慮原則 實質上，法院審理案件時最主要需要解釋的是哪條條款？如果答案是一條“範圍之外的條款”，本法院必須將之提交“人大常委會”。如果最主要需要解釋的並非“範圍之外的條款”，便不須提交。在這情況下，即使一條“範圍之外的條款”可以\n爭辯地\n說成與“非範圍之外的條款”的解釋有關，甚至規限了“非範圍之外的條款”時，法院仍毋須將問題提交“人大常委會”。\n104.\n這考慮原則落實了《基本法》\n第158條\n的兩項主要目的，就是賦予“人大常委會”有權解釋《基本法》，尤其是“範圍之外的條款”，並同時授權特區法院解釋“非範圍之外的條款”，特別是屬自治範圍內的條款，特區法院更可“自行”解釋。\n105.\n我等覺得相當重要的是：《基本法》\n第158條\n規定只在解釋“範圍之外的條款”時，才須提交“人大常委會”。當多條條款（包括“範圍之外的條款”）與解決案中涉及的一般性解釋問題有關時，\n第158條\n並沒有規定法院須請“人大常委會”作一般性的解釋。\n106.\n法院在採用這考慮原則來審理此案時，實質上最主要需要解釋的是\n第24條\n，即關於永久性居民的居留權及該項權利內容的規定，而申請人上訴要求行使的權利，正是源自這條款。在這情形下，本法院覺得毋須把這條款提交“人大常委會”解釋，儘管\n第22（4）條\n是否與解釋\n第24條\n有關是一個可爭論的問題。\n“第3號條例”是否違憲\n107.\n關於這項爭論，問題的關鍵在於《基本法》\n第22（4）條\n是否規限了\n第24（3）條\n所訂的居留權。原訟庭法官裁定後者是受前者規限。他認為這可能是削弱特區高度自治的一個例子，但這是\n第22（4）條\n所認可的。上訴法庭的兩位副庭長黎守律及馬天敏都同意原訟庭法官的取向。高等法院首席法官陳兆愷也裁定這兩條條款是互有關連，然而他認為\n第22（4）條\n限制了仍在內地的人士去\n行使\n這居港權利。如果恰當地解釋《基本法》後，本法院的意見跟原訟庭及上訴法庭的法官意見不同的話 該兩條條款並無關連，而\n第24條\n也不受\n第22（4）條\n影響，則在這情形下，“第3號條例”要求永久性居民要先持有單程證才可享有居留權便缺乏憲法上的依據。代表入境處處長的資深大律師馬先生也接納這個論點。至於要求永久性居民持有居權證來核實其聲稱，則是另一回事。\n108.\n本法院必須強調，若張小姐不是受非婚生的問題所影響，入境處處長便會接納她和本案其他申請人一樣都屬\n第24（2）條\n第三類別所述的永久性居民。本法院現在並非要處理永久性居民類別的定義，而是要處理\n第24（3）條\n所述的人士的居留權問題，而該等人士毫無疑問屬永久性居民。\n109.\n第24（3）條\n規定：永久性居民在特區“享有居留權”。\n《入境條例》\n（2A條）界定了永久性居民享有的權利，即有權入境，不會被施加任何逗留條件，不受任何遞解離境令或遣送離境令的約束。法例界定的居留權，類似普通法的居留權概念。普通法內的居留權曾被描述為“．．．．進入[該司法管轄區]的權利，不受任何障礙或阻礙，任由（居留權擁有人）喜歡何時入境及[隨己意]在境內逗留多久”（見1972年英國上訴案例：\nDirector of Public Prosecutions v. Bhagwan\n[1972 ]《AC》 60，見第74頁B行。）因此，進入司法管轄區的權利，或根據法例所界定的入境權利，正是居留權的要素。\n110.\n本法院在前文界定了永久性居民類別後，已斷定在解釋保障他們權利的憲法條款時，應採用寬鬆的取向。誠如代表申請人的資深大律師張先生所指出，居留權實為一核心權利。事實上，入境權是居留權之要素，如沒有居留權和入境權，申請人便難以享有其他獲憲法保障的權利和自由，特別是選舉權和參選權。在採用寬鬆的取向時，本法院認為，對於任何指\n第22（4）條\n削弱了核心權利的論點均應非常仔細研究。\n111.\n第24（3）條\n賦予永久性居民不受限制的居留權。如果\n第22（4）條\n規限了\n第24（3）條\n這個論點是正確的話，那些亳無疑問擁有永久性居民身分卻仍在內地居住的人士，其居留權利便毫無保障。特區的憲法一方面賦予他們在特區內符合憲法的居留權，但另一方面，卻令這權利受國內機關的酌情權所限制，而這酌情控制權是在特區政府的權力範圍外。單程證所作出的控制，和配額數目及配額分配的決定有關。再者，根據這項論點，這種情況會導致兩類同樣擁有永久性居民身分的人士在憲法上有不同的居留權利，即對於仍在國內居住的人士來說，儘管他們是符合\n第24（2）條\n第三類別的永久性居民，但他們的權利受到\n第22（4）條\n規限；但同樣類別的永久性居民，如在內地以外的地方居住，其居留權則不受此規限。\n112.\n我等不能接納這個論點。在解釋居留權條款時，定要採用一種寬鬆的取向。我等考慮到\n第24條\n與\n第22（4）條\n的用詞時，認為\n第22（4）條\n內所指的“中國其他地區的人”包括進入特區定居的人，但不包括《基本法》已賦予其在特區擁有居留權的特區永久性居民。按對言詞的一般理解，根據《基本法》而擁有永久性居民身分的人士不能稱之為“中國其他地區的人”。他們是中國這地區（香港）的永久性居民。將他們形容為是為了定居而進入特區的人也是不正確的。他們進入特區並非為了定居。他們本身為永久性居民，擁有進入特區及在特區隨意逗留的權利。\n113.\n我等認為，按照\n第22（4）條\n的正確解釋，即使全面履行該條款時亦不會侵犯\n第24條\n所列的居留權。\n第22（4）條\n並不適用於特區的永久性居民，只適用於內地絕大部分沒有特區居留權的人士，儘管他們居住的地方與特區同屬一國，他們也不能未經批准便進入特區。“批准”應該是指內地機關的批准，這個假設是正確的。再者，這條例規定進入特區定居的人數，由中央人民政府主管部門徵求特區政府的意見後確定。\n114.\n我等的結論符合《基本法》設立特區的目的，就是在“一國兩制”的原則下實行高度自治。批准在國內的非特區永久性居民的人士進入特區，及決定進入特區定居者的人數都是內地機關的責任。特區政府在不同的制度下行使高度自治，並有責任去接收根據憲法擁有居留權的永久性居民。我等認為，\n第22（4）條\n並沒有容許特區的自治權受到削弱。\n115.\n代表入境處處長的資深大律師馬先生指出\n第24條\n是受到\n第22（4）條\n的規限，並援引《聯合聲明》附件一第十四部分以支持這個論點。《聯合聲明》具體說明了中國的基本方針政策。附件一第十四部分列出了永久性居民的類別，亦即現今在《基本法》\n第24（2）條\n的類別。這第十四部分繼而規定中國其他地區的人在進入特區時，“將按現在實行的辦法管理”。資深大律師馬先生所倚賴的“實行的辦法”，在1984-1985《聯合聲明》發表的當時，就是指內地居民獲得離境批准後才可進入香港的規定。第十四部分訂定這“實行的辦法”須沿用下去，然而，並無跡象顯示，這個部分的原意是要這“實行的辦法”適用於永久性居民，從而規限了他們擁有的居留權，而這居留權早已在這部分有所訂明。因此，我等並不認為《聯合聲明》在這方面能提供任何協助。\n116.\n資深大律師馬先生除了基於\n第22（4）條\n作出基本陳詞外，亦同時提出另一論點（儘管他只是輕輕帶過）。他指出鑑於內地的法律規定居民來港須有出境批准，故\n第24（3）條\n的解釋便受一項隱含限制的約束，即基於合理的原則，必須遵守關於出境須經批准才可來港的國內法律。如果一條內地的法例可提供憲法基礎去規限《基本法》賦予的一項憲法權利這一論點是正確的話，這便會帶來深遠的影響。\n117.\n我等認為這論點絕不能成立，原訟庭法官與上訴法庭駁回這點，實屬正確。《基本法》\n第18（2）條\n規定全國性法律除列於《基本法》附件三者外，不在特區實施；而列於附件三之全國性法律，由特區在當地公佈或立法實施。\n第18（3）條\n規定“人大常委會”在徵詢其所屬的《基本法》委員會和特區政府的意見後，可對列於附件三的法律作出增減。但\n第18（3）條\n跟著規限了“人大常委會”的權力，規定任何列入附件三的法律，“限於有關國防、外交和其他按本法規定不屬於香港特別行政區自治範圍的法律”。這條款限制了引用內地的法律，這點在履行“一國兩制”的原則上是非常重要的。如果資深大律師馬先生的論點是正確的話，這便會提供一偏徑，讓內地的法律得以在香港施行。我等認為這論點是毫無基礎可言的。\n118.\n內地的法律規定內地居民要有出境批准才可進入香港，這法律當然可以全面在國內執行，但卻不能作為一項憲法的基礎來規限《基本法》所賦予的權利。\n119.\n因此，“第3號條例”規定居於內地的特區永久性居民，要先持有單程證才可享有憲法賦予的居留權，這點是違憲的。\n120.\n然而，這並非表示“第3號條例”所引進的整個居權證計劃是違憲。大家必須把享有居留權的永久性居民和\n聲稱\n是永久性居民的人士區別清楚。所以，立法當局引進一項計劃來核實某些人士\n聲稱\n擁有永久性居民的身分是合理的做法。我等認為在居權證計劃中，必須持有單程證的規定是違憲的，除此之外，計劃的其他部分都是符合憲法的，不能稱之為逾越核實範疇。因此，該計劃規定聲請人須向入境處處長申請及領取居權證，並且\n只能\n在持有居權證後才能確立其永久性居民的身分都是符合憲法。再者，居權證計劃訂明這些人士必須留在內地申請居權證，及在被入境處處長拒發居權證而提出上訴時，也必須留在內地，這方面也是符合憲法。永久性居民因為擁有居留權而有權入境，但\n聲稱\n擁有這身分的人其身分必須首先獲得核實。\n121.\n我等裁定因居權證計劃（持有單程證的規定除外）的目的在於核實聲稱人身分，所以是符合憲法的，同時我等亦顧及到入境處處長必須合法地，以公正合理的態度來執行居權證計劃，而且在落實計劃時還有一些制衡的保護措施。\n122.\n首先，以法例釋義來說，在這核實計劃運作時，法院會對若干條款定下要求，引進合理標準。例如入境處處長可透過憲報公告形式，具體說明該如何申請居權證（\n第2AB（2）（a）條\n），但在行使這項權力時，入境處處長所作出的說明必須是合理的，而法庭亦只會作如是詮釋。其次，如果入境處處長不合法地拖延作出接納或拒絕申請的決定，有關申請人雖然身處內地，仍可向特區法院要求作出公法上的補救。再者，如果入境處處長決定拒絕該項居權證的申請，申請人有法定的上訴權，可向入境事務審裁處提出上訴。這項上訴權利是一種全面的保障。入境處處長有法定責任提供拒絕該項申請的理由，申請人在90天內可提出上訴。根據法例，審裁處的決定為最終的判決，但審裁處有責任“就其所裁斷的事實”來決定有關人士是否可憑藉血緣成為永久性居民，如答案是肯定的話，則要裁定上訴得直。\n分割（違憲部分）\n123.\n我等經考慮後，認為“第3號條例”內的違憲部分，可適當地與符合憲法的部分分割開。分割的準則在於符合憲法的部分是否可清晰地與違憲部分區別出來，從而使符合憲法的部分仍保持完整。我等認為這是可行的。以下乃違憲的部分，應予刪除。在提及法院反對的部分時，我等採用\n《入境條例》\n的條款編號，除非另有所指才屬例外。\n（1）\n第2A（1）條\n增加了的文字，即“在不抵觸\n第2AA（2）條\n的條文下”，現予刪除。經刪除後，\n第2A（1）條\n的內容如下：\n“（1）香港永久性居民享有香港居留權，換言之，具有以下權利\n（a） 在香港入境；\n（b） …\n（c） …\n（d） …”\n（2）\n第2AA（1）（a）條\n經刪除後，該條款的內容如下：\n“（1）任何人作為附表1第2（c）段所指的香港特別行政區永久性居民的身分，只可藉其持有以下文件確立\n（a） 發予他的有效居留權證明書”\n除了以上所列之內容外，（a）段的其他文字予以刪除。\n（3）\n第53D（3）（a）條\n第53D（3）條\n由“第3號條例”\n第7條\n增補，刪除後，\n第53D（3）（a）條\n的內容如下：\n“（a）發予他的有效居留權證明書。”\n除了以上所列之內容外，（a）段的其他文字予以刪除。\n（4）\n《入境規例》\n之附表一\n“第3號條例”\n第10條\n於附表一內加入表格12，即居留權證明書表格。現將表格內的第二句刪除，即\n“ 本證明書必須附貼於本證明書持有人的有效旅行證件上，方為有效。”\n124.\n經刪除後，只留下第一句，即\n“本證明書持有人在香港特別行政區的居留權已確立。”\n125.\n我等以下稱“第3號條例”及其引入的居權證計劃經刪除後的部分為“分割後的第3號條例”及“分割後的居權證計劃”。\n126.\n關於入境處處長的公告，雖然並非附屬法例，但根據我等較早前對“第3號條例”的合憲性作出的結論，也可以將我等反對的部分予以刪除。據了解，因為“第3號條例”規定申請人須持有單程證，所以便牽涉“內地出入境管理處”，而我等已裁定須持有單程證的規定是違憲的。我等並不知道在“分割後的居權證計劃”下，入境處處長是否願意請“內地出入境管理處”作為入境處在內地的代理機關，方便內地居民申請居權證；本法院也不知道“內地出入境管理處”會否願意牽涉在內。因此，我等將“該公告”內的A（i）及B段剔除。這令到公告內就有關內地居民應向誰申請居權證這方面缺乏交代。入境處處長必須以公告形式，具體說明新的安排。本法院並不反對要向內地的某一單位提出申請這種安排，只要該單位是以香港入境處的代理機構身分運作，方便內地居民申請居權證便行。至於“內地出入境管理處”是不是一個合適的機構提供這項服務，便應由入境處處長及“內地出入境管理處”去考慮。\n有關追溯力的問題\n127.\n“第3號條例”在1997年7月10日制訂，但根據\n第1（2）條\n，該條例被視為於1997年7月1日起生效。問題在於這條賦予追溯力的條文（“追溯條文”）是否符合憲法。若不符合的話，\n第1（2）條\n便要從該條例中刪除。\n128.\n原訟庭法官和上訴法庭副庭長馬天敏都認為該條文是有效的，並影響(i)1997年7月1日之前到港人士以及(ii)在1997年7月1日或之後及在7月10日之前到港人士。上訴法庭副庭長黎守律認為該條文有效但不影響上述第(i)類人士。而高等法院首席法官陳兆愷則認為該條文無效，因此均不影響第（i）及第（ii）類人士。可是，他們考慮這個問題時，都是基於他們認為《基本法》\n第24條\n受\n第22（4）條\n規限所作出的結論，但我等對《基本法》的解釋持有不同的結論，故此我等以不同基礎來考慮這個問題。我等所要考慮的是，到底“分割後的第3號條例”中這條“追溯條文”是否違憲。\n129.\n1997年7月10日“第3號條例”制定之前，任何憑藉血緣成為永久性居民的人士，如已抵達香港，便擁有憲法賦予的居留權。事實上，他們都已行使了這個權利，不能被遣返內地。“分割後的第3號條例”引進一個計劃。根據這個計劃，他們\n只可\n藉持有居留權證明書，才能確立他們永久性居民的身分；否則，他們便視作不享有居留權。在1997年7月10日前，他們當然不可能持有居留權證明書。若這條“追溯條文”是符合憲法，他們便會被視為不享有居留權。這樣便會剝奪他們根據《基本法》已享有的、具憲法性的居留權。我等認為，這條“追溯條文”乃屬違憲。代表入境處處長的資深大律師馬先生以“第3號條例”有部分違憲為基礎接納這點，這與他在陳詞中聲稱“第3號條例”並無違憲的說法有所不同。\n130.\n我等接着考慮代表申請人的資深大律師張先生所提出的另一個理據，以支持他認為這條“追溯條文”是違憲的陳詞。\n131.\n在1997年7月10日之前，永久性居民（例如那些獲入境處處長接納為屬於\n第24（2）條\n中第三類別的申請人）享有憲法所賦予的居留權，並因此有權入境及逗留。但是，倘若“第3號條例”中的“追溯條文”是符合憲法的話，追溯力便會導致他們觸犯了刑事罪行。根據“分割後的計劃”，他們必須持有居留權證明書，否則，其身分便會被視作未獲確立，而他們便須被視作不享有居留權；這樣，他們便無權入境或逗留，若入境或逗留便會觸犯刑事罪行，違反\n《入境條例》\n第38條\n，因該條文禁止未獲批准的人士入境或逗留，違反者便是觸犯了刑事罪行。\n132.\n資深大律師張先生爭辯說，這條導致他們觸犯該等刑事罪行的“追溯條文”是違憲的，因為它與“國際人權公約”\n第15（1）條\n相抵觸。\n133.\n“國際人權公約”適用於香港的有關規定，憑藉\n第39條\n而繼續有效。“國際人權公約”\n第15（1）條\n規定：\n“ 任何人之行為或不行為，於發生當時依香港法律及國際法均不成罪者，不為罪。……”\n“國際人權公約”\n第15（1）條\n和香港法例\n第383章\n《人權法案條例》中人權法案的\n第12（1）條\n完全相同。既然“國際人權公約”\n第15（1）條\n適用於香港，引述此條公約是恰當的。\n134.\n高等法院首席法官陳兆愷認為此條“追溯條文”與“國際人權公約”\n第15（1）條\n互相抵觸，也違反憲法。可是，原訟庭法官與上訴法庭副庭長黎守律及馬天敏對“國際人權公約”\n第15（1）條\n的理解則為：該條款禁止根據具追溯力的條文向任何人士提出檢控並將他們定罪，但不會令該“追溯條文”失效。\n135.\n“國際人權公約”\n第15（1）條\n所用的文字是：“任何人……不為罪。”正如資深大律師張先生指出，在詮釋這一句時，必須緊記“國際人權公約”是國際性公約，其對象是不同法制的國家，包括一些不一定以立法作為刑法來源的國家。有鑑於此，我等認為，根據\n第39條\n而適用的“國際人權公約”\n第15（1）條\n確實令到該“追溯條文”違反憲法。在我們的法制下，禁止憑具追溯力條文對觸犯刑事罪行的人士定罪這個做法確實會打擊該“追溯條文”的有效性。這個觀點得到 Van Dijk 及 Van Hoof 的支持：見《歐洲人權公約 理論和實踐》（譯名）Theory and Practice of the European Convention on Human Rights（第三版）第485-486頁有關該歐洲人權公約中等同的條文。\n136.\n倘若我等的判決一如原訟庭及上訴法庭的判決，這便會對有關人士造成不公平的民事後果。他們可被說成是犯了刑事罪；雖然他們不能受到檢控或定罪，但亦可能因此受到不利的待遇，例如，在誹謗法方面以及在各種不同情況下，能否在法律上被認定為“合適及適當”的人選。但若依我等所作的結論，他們便不會面對上述可能產生的後果。\n137.\n因此，我等從“第3號條例”中刪除該“追溯條文”，亦即\n第1（2）條\n。\n非婚生子女的問題\n138.\n根據“第2號條例”引入\n《入境條例》\n的附表1內的第1（2）（b）段規定，如子女屬非婚生子女，只有當該子女其後因父母結婚而獲確立婚生地位才存在父親與子女的關係。問題在於究竟這條文在憲法上是否有效。這段規定應與第1（2）（a）段中的母親與子女的關係作一對比；在該條文內，非婚生子女並沒有受到歧視，他們與婚生子女受同等的待遇。\n139.\n這宗例案的申請人張小姐是一名非婚生子女。她的父母從沒有結婚，母親在她出生後第二天便不幸去世。假若第1(2）（b）段是符合憲法的話，她與父親之間便會被視作不存在“父母與子女的關係”。結果，由於她不屬於“父親或母親是永久性居民”的類別，便不能符合附表1第2（c）段中憑藉血緣成為永久性居民的資格。在其他各方面，入境處處長都接納她是符合資格的。\n140.\n問題在於經正確解釋\n第24（2）條\n第三類別後，非婚生子女是否屬於這個類別。如果是的話，附表1第1（2）（b）段把這類子女摒諸這類別之外便屬違憲。\n141.\n我等在此要處理的是如何解釋一條界定永久性居民類別的條文。在解釋這條文時，必須考慮其背景，包括《基本法》內其他條文，其中\n第39條\n規定“國際人權公約”適用於香港的有關規定繼續有效。背景中有兩項相關的原則。其一，《基本法》和“國際人權公約”都奉行平等原則，反對任何歧視。見《基本法》\n第25條\n和“國際人權公約”\n第3\n及\n26條\n。在這方面，顯而易見，香港本地的法例跟隨着近年的明顯趨勢，通常都把非婚生子女與婚生子女同等看待。其二，“國際人權公約”\n第23（1）條\n認定家庭是社會之自然及基本的團體單位，應該受到社會和國家的保護。\n142.\n在解釋有關條文時，緊記這些原則是很重要的。我等必須指出，若入境處處長的論點正確，則婚生與非婚生子女便會得到不平等的待遇，而非婚生子女的母親和非婚生子女的父親也受到不平等的待遇。再者，由於\n第24（2）條\n的永久性居民類別並沒有包括配偶在內，故該條款令他們不能闔家團聚。依入境處處長的論點，父親的非婚生子女不會因為與父親的血緣關係而得到永久性居民的身分；這樣對促進某程度的家庭相聚沒有任何幫助。\n143.\n當緊記這些原則時，並考慮到\n第24（2）條\n第三類別的文字，我等認為這個類別明顯包括婚生及非婚生的子女。第三類別所界定的是在第一和第二類別列明的“[永久性]居民……所生的……子女”。不論是婚生還是非婚生，這些都是該等居民所生的子女。非婚生子女與婚生子女兩者沒有分別，同樣是該等居民所生的。我等認為這就是該條文顯而易見的意思。因此，附表1第1（2）（b）段把父親的非婚生子女（其後因父母結婚而成為婚生子女者除外）摒諸這類別之外是違反憲法的。\n144.\n資深大律師馬先生向我等指出，“國際人權公約” 適用於香港的有關規定乃受英國在1976年5月簽署及確認“國際人權公約”時作出的保留條款所限制。關於香港方面，這些保留條款包括有權繼續引用入境方面的法例來監管進入香港、逗留及離開香港的人士。而且，接受“國際人權公約”的條件是該公約並不影響針對無權進入及逗留在香港的人士的法例。但是，依我等之見，這並不會阻止本法院在解釋有關永久性居民類別的憲法條文時，考慮“國際人權公約”的原則，而這些原則是構成條文背景的一部分。\n145.\n代表入境處處長的資深大律師馬先生基於中國和英國政府在中英聯合聯絡小組（下稱“聯合聯絡小組”）達成的一項協議而提出其論點。我等沒有該協議的任何記錄。有關這項協議，入境處處長所倚賴的證據來自一本該處在1997年4月印制有關香港居留權的小冊子。這本小冊子內有一段文字，其意思與現在已成為法例的附表1第1（2）（b）段相同，就是對一名父親而言，他的子女不包括非婚生子女，除非他與該子女的母親其後結婚，否則該子女不能成為婚生子女。小冊子述明它是“根據現行的入境條例和常規及基於中、英雙方在[聯合聯絡小組]中的共同看法”而編訂的。\n146.\n資深大律師馬先生以《維也納條約法公約》\n第31條\n為依據提出其論點。這公約的\n第31（1）條\n規定：“條約應依照其用語按上下文並參照條約的目的及宗旨所具有的通常意義善意解釋”。\n第31（3）（a）條\n規定：\n“在考慮上下文之餘，還應一併考慮：\n（a） 締約國其後所訂關於條約的解釋或適用的任何協議。”\n《聯合聲明》附件一第十四部分聲明，現屬於\n第24（2）條\n第三類別所指的人士應有居留權。資深大律師馬先生辯稱，在“聯合聯絡小組”達成的協議是其後達成的協議。基於《維也納公約》\n第31條\n的規定，在解釋《聯合聲明》這一部分時應依據“聯合聯絡小組”其後達成的協議來解釋，而解釋《基本法》時亦應採用同樣方法。\n147.\n“聯合聯絡小組”的成立是基於《聯合聲明》附件二：“為了進行聯絡、磋商及交換情況的需要…”。其職能包括就《聯合聲明》的實施進行磋商（附件二第3（a）段）。它是聯絡機構而非權力機構（附件二第6段）。即使其職能包括由兩國政府在其後就有關《聯合聲明》的解釋或其條文的適用訂立協議，而且該協議屬《維也納公約》\n第31（3）（a）條\n的範圍，但依我等之見，該協議對本法院須要解釋的問題並無影響。\n148.\n首先，達成該協議的基礎並不清楚。該協議可能是為了尋求一個實際的解決方法而達成，與解釋條文或其適用的問題無關。由於小冊子沒有區分母親的非婚生子女及婚生子女（第1（2）（a）段亦沒有如此區別），故此該協議是否以解釋條文或其適用為基礎實令人疑惑。倘若協議是基於解釋條文或其適用而達成，則父親與子女的關係便有別於母親與子女的關係，而要為這個區別找到一個合理的基礎並不容易。\n149.\n其次，即使該協議是基於解釋條文或其適用而達成，\n第31（3）（a）條\n只規定須將其納入考慮之列。不過，經考慮後本法院可以作出不同的結論。我等認為本法院所作的結論明顯是正確的。\n150.\n因此，我等裁定附表1第1（2）（b）段乃屬違憲。原訟庭法官和上訴法庭這樣裁定實屬正確。經分割後，第1（2）（b）段應為：\n“（2）在以下的情況下，視為有父母與子女的關係存在\n（b）任何男子與其婚生或…非婚生子女之間的關係，為父親與子女的關係…”\n除這些字句外，條文中其他字句予以刪除。\n臨時立法會的問題\n151.\n資深大律師戴啟思先生為申請人爭辯這個問題時提出，臨時立法會（下稱“臨立會”）並不是《基本法》內所訂明的立法機關，亦不是一個合法組成的機構。任何經“臨立會”通過的法例必先符合普通法的“必需原則”方為有效。他認為“第3號條例”的“追溯條文”並不符合這個原則，因此亦屬無效。代表入境處處長的資深大律師馬先生認為“臨立會”是一個合法組成的機構。他同意“臨立會”並不是《基本法》內訂明的特區立法機關。但當時的情況是，在1997年7月1日之前的立法機關在該日之後便不再延續，套用一般的說法，就是沒有“直通車”。資深大律師馬先生認為，在這情況下“臨立會”是依據全國人民代表大會在1990年4月4日的決定而成立，亦符合該項決定及《基本法》。\n152.\n有關的決定眾所周知。\n153.\n在1990年4月4日正式通過的《基本法》規定特區的立法會須由選舉產生（\n第68（1）條\n）。\n第68（2）條\n規定它的產生方法須根據特區的情況及循序漸進的原則，最終達至全部議員由普選產生這個目標（\n第68（2）條\n）。\n第68（3）條\n訂明立法會產生的具體方法和法案、議案的表決程序由附件二“香港特別行政區立法會的產生辦法和表決程序”規定。\n第69條\n規定立法會除第一屆任期為兩年外，每屆任期均為四年。《基本法》附件二對第二屆和第三屆立法會的產生辦法有所規定。至於第一屆，附件二規定立法會須按照“全國人民代表大會關於香港特別行政區第一屆政府和第一屆立法會產生辦法的決定”產生。\n154.\n該項決定與《基本法》同時在1990年4月4日經全國人民代表大會通過（下稱“1990年決定”）。第一段述明特區第一屆政府和立法會須“根據體現國家主權、平穩過渡的原則產生”。\n第2段規定：\n“ 在1996年內，全國人民代表大會設立香港特別行政區籌備委員會，負責籌備成立香港特別行政區，根據本決定規定第一屆政府和立法會的具體產生辦法。…”\n155.\n第6段規定第一屆立法會由60名議員組成，其中20名議員由分區直接選舉產生，10名議員由選舉委員會選舉產生，30名議員由功能團體選舉產生。該段進而規定，如1997年7月1日前的立法局的組成符合該決定和《基本法》的有關規定，其議員擁護《基本法》、願效忠中華人民共和國香港特別行政區，並符合《基本法》規定之條件者，經籌備委員會確認，即可成為第一屆立法會議員。第6段的最後部分規定第一屆立法會議員的任期為兩年。\n156.\n顯然，從《基本法》及在《基本法》內提及的“1990年決定”來看，當時預期立法局會乘直通車過渡。\n157.\n為進行1995年選舉，香港的選舉法例有所改變。中國政府不接受這些改變，堅稱這些改變抵觸《基本法》。中國和英國政府在這個問題上的政治爭議人所共知，而結果是沒有直通車。\n158.\n1994年8月31日，“人大常委會”決定立法局不會有直通車，而籌備委員會須負責籌備成立特區的有關事宜，並須根據“1990年決定”規定第一屆立法會的具體產生方法及組織第一屆立法會。\n159.\n1996年3月24日，籌備委員會決定成立臨時立法會。“臨立會”是經由負責推選特區第一屆政府的推選委員會選舉產生，並運作至特區第一屆立法會成立時為止，即不應遲過1998年6月30日。臨立會的指定職責，包括制定對特區的“日常運作必不可少”的法例，以及處理除指定在特區第一屆立法會成立之前規定須由臨時立法會處理之外的其他事宜。1996年10日5日，籌備委員會採納了其訂明的方法成立“臨立會”。1997年2月1日，籌委會決定“臨立會”應在1997年6月30日前開始運作，及須在特區成立時確認那些已經通過的條例草案。\n160.\n《基本法》\n第160條\n規定香港特區成立時，香港原有法律除由“人大常委會”宣佈為同《基本法》有抵觸者外，採用為特區法律。1997年2月23日，“人大常委會”議決不採用若干項法例，包括1995年度立法局的選舉法例。\n161.\n1997年3月14日，全國人民代表大會議決接納籌委會的工作報告，這份報告提及籌委會根據“1990年決定”成立“臨立會”。\n162.\n1997年5月23日，籌委會採用指定的方式來組成特區第一屆立法會。立法會的選舉須在1998年6月30日前完成，而特區須依據該辦法制訂有關選舉立法會的條例。結果，“臨立會”制訂了這些條例。選舉在1998年5月進行。首屆立法會在1998年7月就職。\n163.\n《基本法》規定第一屆立法會須按照“1990年決定”來成立。該決定授權籌委會籌備成立特區並根據該決定去規定第一屆政府和立法會的具體產生辦法。我等認為，由籌委會籌組“臨立會”是在“1990年決定”的範圍內，所以也符合《基本法》。該決定第二段所賦予籌備委員會的權力範圍廣濶，足以令籌委會有權成立臨立會。\n164.\n作出“1990年決定”時，預期會有直通車。因此，第一屆立法會的任期為兩年。但是，“1990年決定”的第6段第二部分規定\n只有\n在符合若干條件後，才會有直通車。在沒有直通車的情況下，籌委會成立的“臨立會”職能有限，而運作的時間亦有限。“臨立會”只是一暫時性的機構，是填補根據《基本法》及“1990年決定”第6段的第一部分成立第一屆立法會之前出現的立法真空。“臨立會”並不是根據《基本法》及該決定第6段的第一部分所產生的第一屆立法會，代表入境處處長的資深大律師馬先生也同意這點。成立“臨立會”的目的完全為了使第一屆立法會得以產生。因此，“臨立會”的成立與《基本法》是相符的。“臨立會”制訂的選舉法符合籌委會在1997年5月就第一屆立法會的產生所作出的決定。這些選舉法使第一屆立法會可在1998年7月前依據該決定產生。\n165.\n考慮到我等作出的結論，即“臨立會” 是符合 “1990年決定”的合法組成機構，亦與《基本法》相符，故我等無須回應資深大律師戴啟思先生基於“必須原則”所提出的論點。\n法庭判令\n三宗上訴 (終院民事上訴1998年第14、15 及16號)\n166.\n有關這三宗上訴案，我等就每宗案件作出宣告並頒令如下：\nA(1) 我等宣告以下部分的《入境條例及規例》乃屬無效，並從該條例或規例中刪除：\n(a)\n第2A（1）條\n的“在不抵觸\n第2AA（2）條\n的條文下”這句。\n(b)\n第2AA（1）（a）條\n的條文，以下字句除外：\n“（1） 任何人作為附表1第2（c）段所指的香港特別行政區永久性居民的身分，只可藉其持有以下文件確立\n（a） 發予他的有效居留權證明書。”\n(c)\n第53D（3）（a）條\n的條文，以下字句除外：\n“（a）發予他的有效居留權證明書。”\n(d)\n《入境規例》\n附表1內的居留權證明書表格12內第二句句子，即：\n“ 本證明書必須附貼於本證明書持有人的有效旅行證件上，方為有效。”\n（2） 我等宣告在1997年7月16日刊登於憲報，日期為1997年7月11日（1997年憲報第(E)21號）的公告內的第A（1）段及第B段為無效，並從“該公告”中刪除。\n（3） 我等宣告“第3號條例”\n第1（2）條\n為無效，並從該條例中刪除。\n（4） 關於訟費問題，我等不作判令。各申請人的訟費（包括終院民事上訴1998年第16號入境處處長的上訴中的申請人的訟費）按《法律援助條例及規例》評定。\n吳嘉玲小姐及吳丹丹小姐（終院民事上訴1998年第14號）\n167.\n有關本上訴案，我等頒令如下：\nB（1） 判令兩名申請人上訴得直。\n（2） 判令撤銷入境處處長以下的決定：\n（a） 約在1997年7月4日扣留申請人的決定，\n（b） 約在1997年7月4日規定申請人須受擔保約束的決定，\n（c） 約在1997年8月7日拒絕讓申請人入境的決定。\n（3）我等宣告兩名申請人乃屬《基本法》\n第24（2）條\n第三類別的香港特別行政區永久性居民，她們自1997年7月1日開始便擁有這身分；故此，她們享有居留權。\n徐權能先生（終院民事上訴1998年第15號）\n168.\n資深大律師張先生告知我等現無須撤銷入境處處長的決定，因為處長已同意徐先生有居留權。有關本上訴案，我等頒令如下：\nC（1）判令申請人上訴得直。\n（2）我等宣告申請人乃屬《基本法》\n第24（2）條\n第三類別的香港特別行政區永久性居民，他自1997年7月1日開始便擁有這身分；故此，他享有居留權。\n張麗華小姐（終院民事上訴1998年第16號）\nD（1）我等宣告\n《入境條例》\n附表1的第1（2）（b）段中以下字句予以保留，其他字句乃屬無效並從該段中刪除：\n“（2）在以下情況下，視為有父母與子女的關係存在\n（b）任何男子與其婚生或…非婚生子女之間的關係，為父親與子女的關係…”\n（2）判令撤銷入境處處長以下的決定：\n（a） 約在1997年7月15日有關申請人不能享有《基本法》\n第24（3）條\n所指的居港權的決定，\n（b） 約在1997年7月15日羈留扣押申請人的決定，\n（c） 約在1997年7月19日規定申請人須受擔保約束的決定，\n（d） 約在1997年8月9日決定申請人必先按照\n《入境條例》\n第1B部分指定的模式，確立她在該條例附表1第2（c）段中永久性居民的身分，才有權行使居港權。\n（3）我等宣告申請人乃屬《基本法》\n第24（2）條\n第三類別的香港特別行政區永久性居民，她在1997年7月1日開始便擁有這身分，故此她享有居留權。\n（李國能）\n（烈顯倫）\n首席法官\n常任法官\n（沈 澄）\n（包致金）\n（梅師賢爵士）\n常任法官\n常任法官\n非常任法官\n資深大律師張健利先生、資深大律師戴啟思先生及大律師郭瑞熙先生（由賈偉林劉天均律師行延聘並由法律援助署署長委派）代表終院民事上訴案1998年第14和15宗的上訴人及終院民事上訴案1998年第16宗的答辯人\n資深大律師馬道立先生及大律師霍兆剛先生（由律政司延聘）代表終院民事上訴案1998年第14和15宗的答辯人及終院民事上訴案1998年第16宗的上訴人", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/1998/FACV000015Y_1998.doc", + "file_name": "FACV000015Y_1998.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkcfa/2005_HKCFA_45/case.json b/zh_cases_hkcfa/2005_HKCFA_45/case.json new file mode 100644 index 0000000..c6e9b16 --- /dev/null +++ b/zh_cases_hkcfa/2005_HKCFA_45/case.json @@ -0,0 +1,26 @@ +{ + "Date": "20 Jul, 2005", + "Action No.": "FACV14/2004", + "Neutral Cit.": "[2005] HKCFA 45", + "case_title": "香港電話有限公司 對 電訊管理局", + "page_title": "香港電話有限公司 對 電訊管理局 | [2005] HKCFA 45 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "FACV14/2004", + "link": "https://www.hklii.hk/tc/appealhistory/FACV/2004/14" + } + ], + "case_url": "https://www.hklii.hk/tc/cases/hkcfa/2005/45", + "neutral_cit": "[2005] HKCFA 45", + "court_code": "HKCFA", + "content": "FACV14Y/2004 香港電話有限公司 對 電訊管理局\n[Chinese Translation – 中譯本]\nFACV 14/2004\n香港特別行政區\n終審法院\n終院民事上訴2004年第14號\n（原高院上訴法庭民事上訴2003年第274號）\n_____________________\n上訴人\n香港電話有限公司\n（PCCW-HKT TELEPHONE LIMITED）\n對\n答辯人\n電訊管理局\n_____________________\n主審法官：\n終審法院首席法官李國能\n終審法院常任法官包致金\n終審法院常任法官陳兆愷\n終審法院常任法官李義\n終審法院非常任法官梅師賢爵士\n聆訊日期： 2005年6月29及30日\n判案書日期： 2005年7月20日\n_____________________\n判案書\n_____________________\n終審法院首席法官李國能：\n1.\n本席同意本院常任法官包致金的判決及本院常任法官李義的判決。\n終審法院常任法官包致金：\n2.\n向電訊（競爭條文）上訴委員會（“上訴委員會”）提出的上訴待決期間，有些事項是\n自動\n暫緩執行，但其他事項則不是。上訴委員會是否有\n酌情\n權在上訴待決期間暫緩執行該等其他事項？本院現要審理的正是這項法律問題。\n3.\n香港的電訊事務受\n《電訊條例》\n（香港法例\n第106章\n）管限。除另有註明外，本席在下文提述的各條各款均源自\n《電訊條例》\n。相關法律於2000年進行改革，\n《電訊條例》\n亦受修訂，引入競爭法條文。此等條文賦權電訊管理局局長（“局長”）發出意見、決定及指示，亦賦權予局長施加制裁及補救。\n《電訊條例》\n設立上訴委員會，並規定可就該等意見、決定、指示、制裁及補救（\n《電訊條例》\n將之統稱爲“標的事項”）向上訴委員會提出上訴。\n4.\n於關鍵時間，向上訴委員會提出上訴的權利乃受\n第32N(1)條\n規管。其後該條文增補了第(1A)、(1B)及(1C)款。因此，\n第32N條\n首四款的内容現為：\n“(1) 如任何人因以下事項感到受屈 —\n(a) 局長作出的與 —\n(i)\n第7K\n、\n7L\n、\n7M\n或\n7N條\n；或\n(ii) 涉及\n第7K\n、\n7L\n、\n7M\n或\n7N條\n的牌照條件，有關的意見、決定或指示；或\n(b) 局長因為\n第7K\n、\n7L\n、\n7M\n或\n7N條\n或任何上述牌照條件遭違反，而根據本條例施加或將會如此施加的任何制裁或補救，\n該人可就該意見、決定、指示、制裁或補救(視屬何情況而定)向上訴委員會提出上訴，但以其與\n第7K\n、\n7L\n、\n7M\n或\n7N條\n或任何上述牌照條件(視屬何情況而定)有關的範圍為限。\n(1A) 任何傳送者牌照持牌人如因局長根據\n第7P(14)條\n發表的意見、指示或決定而感到受屈，可針對該意見、指示或決定向上訴委員會提出上訴(但只有在該意見、指示或決定是就該持牌人而得出、發出或作出的的情況下，該持牌人方可如此提出上訴)。\n(1B) 任何人如—\n(a) 就\n第7P(1)條\n提述的改變而言，屬\n第7P(18)條\n中“有利害關係的人”的定義的(a)段所指的有利害關係的人；及\n(b) 因局長根據\n第7P(14)(a)條\n就該項改變發表的意見或指示而感到受屈，\n可針對該意見或指示向上訴委員會提出上訴。\n(1C) 任何人如 —\n(a) 就\n第7P(6)條\n提述的建議作出的改變而言，屬\n第7P(18)條\n中“有利害關係的人”的定義的(b)段所指的有利害關係的人；及\n(b) 因局長根據\n第7P(14)(b)條\n就該項建議作出的改變發表的意見、決定或指示而感到受屈，\n可針對該意見、決定或指示向上訴委員會提出上訴。”\n第7K\n、\n7L\n、\n7M\n及\n7N條\n分別針對反競爭行爲、濫用優勢、具誤導性或欺騙性的行爲以及歧視。\n第7P條\n則規管就傳送者牌照持牌人作出的改變。\n5.\n關於在上訴待決期間暫緩執行有關事項，\n第32N條\n現規定如下：\n“(2) 除第(3)款另有規定外，任何上訴不得令標的事項暫緩執行。\n(3) 凡有任何上訴提出，而標的事項屬第(1A)、(1B)或(1C)款或\n第36C條\n所訂範圍之內，則該事項須自上訴提出之日起暫緩執行，直至該上訴已有裁定、被撤回或被放棄為止。”\n第(2)款完全未被修訂。第(3)款的唯一修訂，是於關鍵時間之後加入“第(1A)、(1B)或(1C)款或”此等字眼。這三項新增條文，即第(1A)、(1B)及(1C)款，均關乎\n第7P條\n。因此這些條文所處理的是就傳送者牌照持牌人作出的改變。\n第36C條\n則處理罰款一事。\n6.\n本案既不涉及就傳送者牌照持牌人作出的改變，亦不涉及任何罰款，故並不牽涉自動暫緩執行。故此問題是上訴委員會是否有酌情權在上訴待決期間暫緩執行涉案事項。這問題在以下情況產生。\n上訴委員會裁定\n其沒\n有酌情權在上訴待決期間暫緩執行\n事項\n7.\n上訴人公司（本席將稱之爲“電訊盈科”）持有根據\n《電訊條例》\n發出的固定電訊網絡服務牌照。\n第36B條\n對於局長向持牌人及其他人士發出指示的權力作出規定。該項條文内容如下：\n“(1) 除第(2)款另有規定外，局長可向下述的人發出書面指示 ─\n(a) 持牌人，規定其採取局長認為有需要的行動，藉以使持牌人 ─\n(i) 遵從其牌照的任何條款或條件；或\n(ii) 遵從本條例任何條文或根據本條例訂立的任何規例；或\n(iii) 就\n第36A(3D)條\n所述類型的任何互連，確保將屬其牌照的標的之任何電訊服務連接至下述服務或系統─\n(A) 屬根據本條例批給的牌照的標的或根據\n第39條\n作出的命令的標的之任何其他電訊服務；或\n(B)\n第8(4)(e)條\n所述種類的系統；或\n(C)\n第8(4)(f)條\n所述種類的閉路電視系統；及\n(D) （由1995年第40號\n第9條\n廢除）\n(b) 屬下述服務或系統的操作人的任何人─\n(i)\n第8(4)(e)條\n所述種類的系統；或\n(ii)\n第8(4)(f)條\n所述種類的閉路電視系統；或\n(iii) 屬根據\n第39條\n所作命令的標的之電訊服務，\n規定該人採取局長認為有需要的行動，藉以就第36A(3D)所述類型的任何互連，確保將任何上述系統、閉路電視系統或電訊服務連接至下述服務或系統─\n(A) 由持牌人根據本條例提供的任何電訊服務；或\n(B)\n第8(4)(e)條\n所述種類的任何其他系統；或\n(C)\n第8(4)(f)條\n所述種類的任何其他閉路電視系統；或\n(D) 屬根據\n第39條\n作出的命令的標的之任何其他電訊服務，\n(E) （由1995年第40號\n第9條\n廢除）\n而持牌人或該人須實行該項指示。\n(2) 除非局長信納持牌人或該人已獲給予合理機會向局長作出申述，否則不得根據第(1)(a)(iii)或(b)款如此發出指示。”\n8.\n2002年5月15日，局長根據\n第36B(1)(a)(iii)條\n發出指示，要求電訊盈科向競爭對手提供細分化地區性迴路。電訊盈科就該指示向上訴委員會提出上訴。電訊盈科自然希望該指示在上訴待決期間暫緩執行，於是向上訴委員會申請暫緩執行該指示約一星期。這將屬於臨時暫緩執行，以待上訴委員會決定應否暫緩執行該指示直至上訴有結果爲止。局長反對暫緩執行該指示，並陳詞指上訴委員會沒有酌情權暫緩執行該指示。\n9.\n第32O(1)(b)條\n規定，在上訴委員會席前提出的法律問題須由主席或副主席裁定。上訴委員會主席（資深大律師John Griffiths先生）在日期為2002年7月15日的判決書中裁定接納局長的陳詞，因此不准予臨時暫緩執行該指示，並命令電訊盈科支付訟費。但Griffiths先生表明，假如有權力命令臨時暫緩執行該指示，他將偏向於如此行。\n上訴法庭同意\n10.\n在上訴委員會席前的上訴過程中出現的法律問題，可藉案件呈述方式呈交上訴法庭裁決。這種上訴是\n第32R條\n所規定的。電訊盈科就兩項法律問題向上訴法庭提出上訴。第一項是就上訴委員會於2002年7月12日所作出、並於同月29日給予理由的裁決。該問題與本院席前的上訴無關。我等只關注第二項問題，即：上訴委員會是否有酌情權在上訴待決期間暫緩執行有關事項？\n11.\n上訴法庭（高等法院首席法官馬道立、上訴法庭副庭長羅傑志及上訴法庭法官郭美超）在日期為2004年7月8日的判案書中宣告，上訴委員會沒有酌情權在上訴待決期間暫緩執行有關事項。上訴法庭亦判令電訊盈科獲得其一半訟費。電訊盈科於2004年11月26日獲上訴法庭批予許可向本院提出上訴，以尋求聲明上訴委員會有酌情權在上訴待決期間暫緩執行有關事項。上訴法庭亦頒令該項上訴許可申請所涉的訟費歸於在本院上訴的訟費中。\n上訴委員會的\n理據\n12.\nGriffiths先生在達致其結論 — 即上訴委員會沒有酌情權在上訴待決期間暫緩執行有關事項 — 時所提供的理據可概述如下。如前文所述，\n第32N條\n規定“除第(3)款另有規定外，任何上訴不得令標的事項暫緩執行”。Griffiths先生認爲此等字詞的意思模棱兩可，既可解讀為除第(3)款所規定者外不得自動暫緩執行有關事項，亦可解讀為禁止上訴委員會按因由而酌情決定暫緩執行有關事項。為了解決他所認爲存在的上述歧義之處，他翻查與\n《電訊條例》\n的競爭法條文修訂有關的立法會程序資料。他使用此等立法會資料以協助詮釋法例，而此乃建基於他對於在香港應用\nPepper v. Hart\n[1993] AC 593\n案中獲上議院法官以六比一多數贊成的處理方式的看法。根據該方式，他作出結論，指\n第32N(2)條\n的“立法意圖”是“使上訴委員會在上訴的任何階段均不能批准擱置執行有關事項”。\n13.\n他繼而論及\n第32O(7)條\n，該項條文規定：\n“任何與上訴聆訊有關的實務或程序事宜，如是本條例或根據本條例訂立的規例未有條文予以規限的，則主席可決定該事宜。”\n當局未有就暫緩執行一事訂立規例。Griffiths先生認為，若然\n第32N(2)條\n不存在，上訴委員會將有酌情權根據\n第32O(7)條\n批准在上訴待決期間暫緩執行有關事項，但\n第32N(2)條\n“凌駕”\n第32O(7)條\n下的權力。\n上訴法庭的\n理據\n14.\n上訴法庭給予單一項理由，解釋因何裁定上訴委員會沒有酌情權在上訴待決期間暫緩執行有關事項。在得到上訴法庭副庭長羅傑志及上訴法庭法官郭美超贊同的判決書中，高等法院首席法官馬道立表示，\n第32N(2)條\n“的用詞清晰明確，其所提述的問題看來純粹是上訴是否會令標的事項擱置執行，不論該擱置是自動的還是酌情決定的”。\n電訊盈科的陳詞摘要\n15.\n電訊盈科的案情理據陳述書包含實用的陳詞摘要。該摘要大意如下︰—\n(a) 上訴委員會作爲由立法機關設立、就來自局長的個案的上訴作出裁決的司法審裁機構，在不受明文禁止的情況下，就具有隱含酌情權，在針對有關事項而提出的上訴得到裁決之前暫緩執行該事項。要排除這種隱含權力，就必須使用清楚明確、毫不含糊的措辭。\n(b) 作為交替陳詞，在沒有明文禁止的情況下，\n第32O(7)條\n賦予上訴委員會上述酌情權。\n(c)\n第32N(2)條\n並無禁止上訴委員會酌情在上訴待決期間暫緩執行有關事項。該條文的解釋應與第(1)和(3)款一致，並應按\n《電訊條例》\n下規管向上訴委員會提出上訴及其後就法律問題向上訴法庭提出上訴等事宜的第VC部的文意理解。按此理解，第(2)款顯然禁止在上訴待決期間自動暫緩執行不受第(3)款涵蓋的標的事項，但未有對酌情在上訴待決期間暫緩執行該等事項的問題作出規定。作為交替陳詞，第(2)款並無清楚明確地排除在上訴待決期間暫緩執行有關事項的隱含及/或明示權力。\n(d) 假如上訴委員會不具有任何酌情權在上訴待決期間暫緩執行有關事項，則：\n(i) 可能導致不公正，因爲根據\n《電訊條例》\n，局長可行使廣泛權力，而若然局長的命令其後被撤銷，受害一方將蒙受嚴重損害且無權追討任何補償；及/或\n(ii) 構成不相稱地限制感到受屈的一方得到有效補救的權利，從而違反《基本法》\n第35條\n及《人權法案》\n第10條\n。\n第32N(2)條\n的詮釋，應以避免上述不公正及侵犯基本權利的情況為依歸。\n(e) 即使符合有關的嚴格條件，致使相關立法會資料可根據\nPepper v. Hart\n案所訂立的處理方式而獲接納，該處理方式亦不應在香港採用，以致：\n(iv) 政府得以依據該種資料，對法例條文作出有利自己、不利私人一方的解釋，或\n(v) 容許以立法會法案委員會席前的文件或該委員會所作的報告為依據。\n(f)\n第32N(2)條\n如禁止酌情在上訴待決期間暫緩執行有關事項，即屬違憲。\n局長的陳詞摘要\n16.\n按其案情理據陳述書所載的摘要，局長的陳詞大意如下︰—\n(a) 上訴委員會不具有明示酌情權在上訴待決期間暫緩執行有關事項。\n(b) 該委員會亦不具有固有或隱含權力這樣做。\n(c) 按其正確解釋，\n第32N(2)條\n明文規定上訴委員會無權在上訴待決期間暫緩執行有關事項。\n(d) 如有需要，可使用法案委員會文件，以確定\n第32N(2)條\n的立法意圖，從而解決該條文的任何歧義。\n(e)\n第32N(2)條\n並無抵觸《基本法》\n第35條\n及《人權法案》\n第10條\n。\n17.\n局長在其補充案情理據陳述書中提出一項建基於\n《釋義及通則條例》\n（香港法例\n第1章\n）\n第46條\n的陳詞。該項條文内容如下：\n“凡條例授權力予任何人訂立、批給、發出或批准任何文告、命令、公告、聲明、文書、通告、牌照、許可證、豁免、登記冊或目錄，該權力包括作以下事情的權力 —\n(a) 修訂或暫時撤銷這些文告、命令、公告、聲明、文書、通告、牌照、許可證、豁免、登記冊或目錄；\n(b) 以另一份文告、命令、公告、聲明、文書、通告、牌照、許可證、豁免、登記冊或目錄取代已訂立、批給、發出或批准的一份；\n(c) 撤回藉該權力所作的任何文告、命令、公告、聲明、文書、通告、牌照、許可證、豁免、登記冊或目錄的批准；及\n(d) 宣布有關文告、命令、公告、聲明、文書、通告、牌照、許可證、豁免、登記冊或目錄的實施日期及實施期限。”\n該項陳詞大意如下。任何人如因局長作出的指示感到受屈，可向局長申請在上訴待決期間暫緩執行該指示。假如局長拒准暫緩執行，則該決定可藉司法覆核而受質疑。因此，即使上訴委員會不具有酌情權在上訴待決期間暫緩執行該指示，仍有途徑藉以尋求在上訴待決期間暫緩執行該指示。\n18.\n代表電訊盈科的御用大律師Peter Roth先生及代表局長的資深大律師鄭若驊女士稱職地陳述的論點，主要針對以下問題：有關法例是否明文禁止有酌情權在上訴待決期間暫緩執行有關事項？如無明文禁止，應否以隱含方式賦予這種酌情權？\n使用立法會資料\n19.\n與訟雙方各自尋求依賴有關人士於本案所涉法例在立法機關通過期間在立法會作出的相關言論。\n20.\n至少自合議庭在\nElson-Vernon Knitters Ltd v. Sino-Indo-American Spinners Ltd\n[1972] HKLR 468\n案作出裁決後，下述情況已相當明確，即一項條例草案所附連的《立法目的及理由或解説備忘錄》可獲接納，以確定該項建議中法例旨在補救何等禍害。各部長於提交條例草案時所作的解説，亦可爲相同目的而獲接納。然而，假如把部長就建議中法例的涵義和效力所作的陳述視爲反映立法機關的意願，則將超出為確定法規所針對的禍害而使用該等陳述。在案例\nDirector of Lands v. Yin Shuen Enterprises Ltd\n(2003) 6 HKCFAR 1\n第15頁F至H，本院非常任法官苗禮治勳爵表示（其言論亦獲本院其他法官贊同）:\n“這種證據只可為着有限的目的而獲接納，該目的是協助法庭理解有關法規在何等事實背景下制定及該法規針對何等禍害。這有別於把行政機關就法例文字的涵義及效力而作出的陳述視為反映立法機關的意願。然而，在可予容許的範圍内，可獲接納的證據並不局限於《立法目的及理由解説備忘錄》，而必須按理延展至各部長在提交條例草案時提供的解説。”\n21.\n案例\nPepper v. Hart\n使“不得參考國會資料以協助詮釋法例”這項規則得以放寬。該項經放寬了規則見於Browne-Wilkinson勳爵的判詞，載於該案彙編第640頁B至C。該規則容許在符合下列條件下參考國會資料:\n“假如(a)法例模棱兩可或含糊不清，或導致荒謬情況；(b)所依賴的資料包含部長或該條例草案的其他發起人所作的一項或多項陳述，以及在有需要下連同為理解該等陳述及其效力所需的其他國會資料；(c)所依賴的陳述是清晰明確的。”\n事實顯示，較此溫和的放寬已足以容許參考該案所涉的國會資料。在該案彙編第616頁G，Bridge of Harwich勳爵說該等資料引起\n“一個嚴重問題:假如實施課稅法例的方式將導致施加某稅項，而財政部財政司長在包含有關條文的條例草案通過期間曾變相向下議院保證該法例不擬施加該稅項，則以該方式實施該法例是否有可能正確？”\n因此，放寬的範圍原可限於部長向立法機關保證建議中的法例並不旨在訂立特定稅項。本席不難理解和接受這種有限度的放寬。但若然更冒進地使用部長就建議中法例的含義和效力所作的陳述，便會引發實務上、概念上及憲法上的問題。實務問題已由賀輔明勳爵在案例\nRobinson v. Secretary of State for Northern Ireland\n[2002] NI 390判詞第39至40段論述；概念及憲法問題則已分別由Hobhouse of Woodborough勳爵在\nRobinson\n案判詞第65段及由李啟新勳爵在案例\nWilson v. First County Trusts Ltd (No. 2)\n[2004]\n1 AC 816\n第841頁B至F論述。\n所\n依\n賴\n的陳述\n22.\n本席現處理局長在其案情理據陳述書内引用的立法會資料。該等資料包含三項陳述。第一項陳述載於一份由資訊科技及廣播局向《1999年電訊（修訂）條例草案》法案委員會提交、日期為2000年4月20日的文件。導致\n《電訊條例》\n藉引入競爭法條文而被修訂的，正是上述條例草案。該份文件所載的該項陳述，内容如下：\n“現提出的建議必須在確保上訴委員會機制符合本局政策目標及確保上訴渠道不會易受濫用這兩者之間取得平衡。因此，雖然本局建議賦權該委員會審核[局長的]決定的是非曲直，但對於上訴所針對的意見、指示及決定，上訴委員會\n應不可予暫緩執行\n以作臨時寬免，而[局長]根據新訂的\n第36C條\n可施加的處罰或補救則屬例外。”（下劃線見於原文）\n23.\n第二項陳述是法案委員會主席單仲楷議員於2000年4月27日在該委員會的會議上提出的問題的前言。我等未獲提供顯示當時實際所用言詞的謄本，但按該會議的紀錄所載，該項陳述内容如下：\n“主席注意到，建議中的\n第32N(2)及(3)條\n規定[局長]的決定不會受到暫緩執行，而根據建議中的\n第36C條\n施加的處罰及補救則屬例外。有見及此，主席提出以下查詢:一旦[局長]的決定其後被上訴委員會撤銷，[局長]會否在任何被追討損害賠償的訴訟中負上法律責任。”\n24.\n第三項陳述載於一份由立法會秘書處擬備、日期為2000年5月的文件。該份文件的目的是向内務委員會報告法案委員會的審議結果。當中所載的有關陳述，内容如下：\n“行政當局雖然堅持該條例草案符合有關人權法例下的公平聆訊規定，但亦同意在政策層面上藉該條例草案設立電訊（競爭條文）上訴委員會（上訴委員會），負責審理針對下述事宜的上訴，該等事宜包括根據建議中的與競爭事宜有關的\n第7K\n、\n7L\n、\n7M\n或\n7N條\n由[局長]作出的意見、決定及指示，以及根據建議中的\n第36C條\n由[局長]施加的罰款／補救。為確保上訴機制符合其政策目的及不會易受濫用，已提出的建議是，雖然上訴委員會可以審核[局長的]決定／意見的是非曲直，但此等決定／意見不應予以暫緩執行以作臨時寬免，而根據建議中的\n第36C條\n由[局長]施加的處罰及補救則屬例外。”\n25.\n局長的案情理據陳述書聲稱，“法案委員會的文件消除了任何對於\n第32N(2)條\n的\n效力\n的疑問”。（斜體後加，以資強調）\n26.\n就第一項陳述而言，假設資訊科技及廣播局是該條例草案的發起人，該陳述是否清楚明確？在缺乏進一步説明下，指對於上訴所針對的事項“上訴委員會應不可予暫緩執行以作臨時寬免”看來是指上訴委員會應當沒有酌情權在上訴待決期間暫緩執行該事項。然而，在未有進一步説明下，該句子沒有這樣説。接着的一句是“而電訊管理局局長根據新訂的\n第36C條\n可施加的處罰或補救則屬例外”。這不可能關乎在上訴待決期間暫緩執行有關事項的酌情權，而只可以是關乎自動暫緩執行。倘若有任何關於第一項陳述的事情是明確的，則該事情就是關於自動暫緩執行於何時產生及於何時不產生。第一項陳述不可被指為清楚說明上訴委員會將不具有酌情權在上訴待決期間暫緩執行有關事項。因此，不論從何角度理解\nPepper v. Hart\n案的原則，第一項陳述都對局長毫無幫助。\n27.\n第二及第三項陳述均不是部長或該條例草案的其他發起人作出的。事實上，該兩項陳述甚至並非向立法機關作出的陳述。第二項陳述是一名議員於列席委員會時作出的。第三項陳述則是立法機關的秘書處將一個委員會的審議結果向另一委員會報告，屬内部通訊。即使撇開用以反對引用該等陳述以協助詮釋的理由不談，不論從何角度理解\nPepper v. Hart\n案，該等陳述都不受該案的原則涵蓋。因此，不論從何角度理解該案，局長所依據的立法會資料全都不能在關於\n《電訊條例》\n的效力方面獲接納。\n28.\n在案例\nLam Pak Chiu v. Tsang Mei Ying\n(2001) 4 HKCFAR 34\n第44頁D至E，本院曾表明不解答以下問題：在\nPepper v. Hart\n案中獲上議院大多數法官贊成的處理方式是否適合香港應用，以及（如適合者）在何等程度上適合。本席將繼續讓該問題留待日後解答。\n沒有條文明\n文\n禁止酌情暫緩執行\n有關事項\n29.\n局長陳詞指\n第32N(2)條\n明文規定上訴委員會無權在上訴待決期間暫緩執行有關事項。本席無法接納這項陳詞。說“上訴須”令致暫緩執行，就必然帶來自動在上訴待決期間暫緩執行。但是說“上訴不得”令致暫緩執行，其唯一意思就是指不會自動在上訴待決期間暫緩執行。畢竟，若然審裁機構行使酌情權暫緩執行有關事項，就會是該審裁機構而不是該上訴令致暫緩執行 ¾ 也就是說作出暫緩執行。由事件帶來的暫緩執行，其本質是自動的；由審裁機構頒令的暫緩執行，其本質是酌情性的。\n30.\nRoth先生頗依賴（但決非純粹依賴）資訊科技及廣播局局長在《1999年電訊（修訂）條例草案》二讀時作出的一項陳述。局長當時說：“為免會令[電訊管理局局長]的決定無法生效的上訴機制被濫用，上訴涉及的所有事項將不會暫緩執行，就處罰而作的決定則屬例外。”Roth先生陳詞指這項陳述顯示\n第32(N)(2)條\n要對付的禍害是濫用自動暫緩執行有關事項。本席不認爲這項陳述充分明確以致有幫助。然而，Roth先生循以下推敲過程，得到他不能從這項陳述得到的結論。自動暫緩執行可被濫用，方式是提出沒有勝訴希望的上訴，藉以推遲須遵行局長的指示的日期。在自動暫緩執行的情況下，這種上訴可以得逞，除非與直至以明顯濫用程序為由而循簡易程序被駁回。另一方面，暫緩執行的酌情權則不受這種濫用。這種酌情權會牽涉上訴委員會對上訴的成功機會得出一種看法，亦會牽涉上訴委員會權衡所有關乎贊成與反對暫緩執行的考慮因素。正如本席在案例\nAnglo Starlite Insurance v. The Insurance Authority\n[1992]\n2 HKLR 31\n第36頁指出，這種酌情決定權“不會令行政上的行動陷於癱瘓”。\n31.\n基於上述理由，本席認爲\n《電訊條例》\n沒有條文明文禁止酌情暫緩執行有關事項。\n同樣沒有任何條文明\n文\n准許酌情暫緩執行\n有關事項\n32.\n本席認為，\n《電訊條例》\n亦不載有任何條文明文准許酌情暫緩執行有關事項。本席採取這觀點的理由如下。\n33.\n電訊盈科提出\n第32O(7)條\n是這樣的一項條文。正如本席在上文指出，這項條文内容如下：\n“任何與上訴聆訊有關的實務或程序事宜，如是本條例或根據本條例訂立的規例未有條文予以規限的，則主席可決定該事宜。”\n注意“聆訊”一詞。\n34.\n英格蘭當地於很久以前已有此說（見上訴法院法官Lush在案例\nPoyser v. Minors\n(1881)\n7 QBD 329\n第333頁所述）。香港亦已於很久以前採納此說（見高等法院法官Reece在案例\nLi Tse Cho (No.3) v. Ching Hua Co. (HK) Ltd\n[1961] HKLR 201\n第206頁所述）。實務如同程序，所表示的是\n“藉以強制執行法律權利的法律程序模式，而非賦予或界定該權利的法律；而法庭藉著該法律程序管理有關機制，而非從該機制所得結果。”\n在上訴待決期間暫緩執行有關事項，乃屬實務或程序事宜。但這是與上訴有關，而不是與上訴\n聆訊\n有關。如上文所述，\n第32O(7)條\n處理的是“與上訴聆訊有關的實務或程序”。該項條文賦權主席就上訴聆訊期間產生或可能產生的實務或程序事宜作出決定。立法機關極不可能會將暫緩執行有關事項的權力賦予主席而非上訴委員會。因此，\n第32O(7)條\n並不關乎在上訴待決期間暫緩執行有關事項。\n是否有隱含權力酌情暫緩執行\n有關事項\n？\n35.\n既然在上述兩方面均沒有明示權力，關於上訴委員會是否有酌情權在上訴待決期間暫緩執行有關事項的問題便可歸結如下：上訴委員會是否有隱含權力酌情暫緩執行有關事項？\n36.\n在缺乏某種特定的明示權力下，就可產生\n上級\n法院是否\n固有\n該種權力這個問題。就\n下級\n法院或審裁機構而言，對等的問題是它們是否\n隱含有\n該權力。而本席認為，用以決定下級法院或審裁機構是否隱含有該權力的正確驗證標準，是由澳大利亞高等法院法官杜偉舜在案例\nGrassby v. R\n(1989) 168 CLR 1\n第17頁所闡明的驗證標準，而該標準獲聆訊同案上訴的澳大利亞高等法院其他成員接納。該標準就是：下級法院或審裁機構具有可引伸自法例含意、且為有效行使明示授予該法院或機構的司法管轄權而必需的附帶權力。這主張在本案起主導作用，因爲上訴委員會是下級審裁機構 — 這是就司法管轄權的意義而言，但當然不帶任何貶義。\n37.\n觀察該驗證標準在\nGrassby\n案本身如何運作，是頗具啓發性的。該案所涉的問題是，按新南威爾斯州《1902年法官法令》審理交付審判程序聆訊的裁判官是否有隱含權力以該程序屬濫用法庭程序為由而將之擱置。該法令\n第41(6)條\n規定如下：\n“當所有控方證據及任何辯方證據已錄取後，一名或多名法官經考慮在其席前的所有證據後 —\n(a) 如認爲陪審團經考慮在該名或該等法官席前的所有證據後相當不可能會裁定被告人任何一項公訴罪行罪名成立 — 須立即頒令被告人獲撤銷當時在查訊中的告發；或\n(b) 如不認爲陪審團經考慮在該名或該等法官席前的所有證據後相當不可能會裁定被告人任何一項公訴罪行罪名成立 — 須將被告人交付審判。”\n諸位法官一致裁定，裁判官沒有隱含權力以濫用法庭程序為由而擱置交付審判程序。\n38.\n一眾法官為何作出如此裁決，實不難理解。杜偉舜法官在該案彙編第18頁給予以下理由（首席法官梅師賢與高等法院法官布仁立和Toohey均對之表示同意）︰\n“面對此等以強制性措辭表達的法定責任，沒有餘地加入隱含酌情權藉規定以外的方式終止該法律程序。這也不令人驚訝。誠然，被交付審判的人可能面對他原不會面對的審訊，但最終決定他事實上是否受審的權力並非由裁判官擁有。將被告人交付審判的裁判官無權基於主審法庭的程序被濫用而頒令擱置交付審判程序，而引領如何行使該權力的考慮因素與裁判官必需執行的職能幾乎全無關係。進行刑事檢控只會在特殊情況下構成濫用審理有關罪行的法庭的程序，而有見及此，便難以想象壓迫源自並僅限於交付審判程序本身。”\n39.\nGrassby\n案的判決並無剝奪負責將被告人交付審判的裁判官為有效行使其明示司法管轄權所必須具有的任何權力。正如Deane法官在該案彙編第6頁指出：\n“假如裁判官經考慮所有證據後，認爲在最高法院進行的檢控會基於該法院的程序被濫用而被永久擱置，則依本席看來，該裁判官的看法必然會是假使作出交付審判令，陪審團亦相當不可能會裁定被告人任何一項公訴罪行罪名成立。”\n而結果就會是根據《1902年法官法令》\n第41(6)(b)條\n使被告人獲撤銷正在查訊中的告發。\n40.\n另一宗關於有必要以隱含方式賦予權力的澳大利亞高等法院案例，是\nPelechowski v. Registrar, Court of Appeal (NSW)\n(1999) 198 CLR 435\n。在該案彙編第452頁，高等法院法官Gaudron、Gummow和Callinan在他們的聯合判決中表示，就此情況而言，“有需要”一詞要按Pollock男爵在案例\nAttorney-General v. Walker\n(1849) 3 Ex 242 第255至256頁；\n154 ER 833\n第838至839頁給予該詞的意義來理解。按各位法官所言，該詞的含意是指“合理所需”，本席對此亦表示同意。\n41.\n以隱含方式賦予下級法院權力的例子之一，見於英國上訴法院在\nBodden v. Metropolitan Police Commissioner\n[1990]\n2 QB 397\n案的判決。該案關乎《1981年藐視法庭法令》\n第12(1)及(2)條\n，其内容如下：\n“(1) 裁判法院根據本條文，具有司法管轄權處理任何作出以下行爲的人士 — (a)對一名或多名法官、任何出庭的證人或法庭人員、任何在法庭辦理事務的律師或大律師，當他或他們在法庭開庭或出庭時或在前往或離開法庭時，故意侮辱他或他們；或(b)故意干擾法律程序的進行或在法庭作出其他不檢行爲。\n(2) 凡屬以上情況，法庭可命令任何法庭人員或任何警員，將違犯者拘押並將他扣留直至法庭散庭；而法庭如認爲適當，可將違犯者交付羈押一段爲期不超過一個月的指明期間，或對他判處罰款不超過[£1,000]，或同時施加該兩項懲罰。”\n42.\n該案中有陳詞指，根據第(2)款而命令將某人拘留的權力並不包含命令將該人帶到裁判官席前的權力，又有陳詞指，這亦不包含為決定該人是否故意行事而對干擾情況進行查究的權力。這兩項陳詞均不獲上訴法院接納。在該案彙編第405頁F至G，上訴法院法官Beldam表示（其判詞亦獲上訴法院民事庭庭長Donaldson of Lymington 勳爵及上訴法院法官伍爾夫（其後成為首席法官伍爾夫勳爵）表示同意）：\n“藉著賦予裁判法院司法管轄權處理\n第12(1)(a)及(b)條\n提述的各種藐視行爲，國會顯然有意授予為使法庭能以司法方式行使司法管轄權而需要的一切附帶權力。”\n43.\n與此背道而馳的例子之一，是新南威爾斯州最高法院（現行司法管轄權）在\nRoad and Traffic Authority v. Hayek\n[2004] NSWSC 575\n案的判決。該案關乎裁判官就針對多項暫停授權驗車的行政命令而提出的上訴進行聆訊的法定司法管轄權。就針對這種命令而提出的上訴進行聆訊的司法管轄權，是否附隨著隱含權力在上訴待決期間擱置該等命令？法院表示，這種命令所針對的人士所蒙受的困難，並非首要考慮因素。要考慮的是公眾安全。結果，法院裁定裁判官沒有隱含權力在上訴待決期間擱置這種命令。\n44.\n在本案中，本院所要處理的問題乃關乎該等可向上訴委員會上訴但不引起自動在上訴待決期間暫緩執行的事項。該問題現歸結如下。\n第32O(4)條\n明文授予上訴委員會司法管轄權就上訴作出裁決，它可維持、更改或撤銷上訴的標的事項，並可按需要作出相應的命令。在上訴待決期間暫緩執行此等事項的酌情權，是否屬於上訴委員會為有效行使其明文獲授予的司法管轄權而必需的、並可引伸自法例含意的附帶權力？\n45.\n如一項已正確地作出的命令遭暫緩執行，以待進行針對該命令的上訴，而上訴最終失敗，這可導致相當大的損害。另一方面，若然一項錯誤地作出的命令卻實施至經上訴予以撤銷爲止，這亦可引致相當大的損失。容許針對監管機構的命令而提出上訴，並非為了令該機構的活動陷於癱瘓，而是為了向上訴人提供有效的補救措施。假如情況並非自動在上訴待決期間暫緩執行命令，則任何可予行使而導致該命令在上訴待決期間暫緩執行的酌情權，將由上訴審裁機構在小心緊記以上兩項考慮因素下行使。\n46.\n一個極端的説法是：可予行使而導致在上訴待決期間暫緩執行有關事項的酌情權，一直都是每個上訴審裁機構為有效行使其明示獲授予的司法管轄權而必需的、且可引伸自法例含意的附帶權力。另一個極端的説法是：這種酌情權從來都不是任何上訴審裁機構為有效行使其明示獲授予的司法管轄權而必需的、且可引伸自法例含意的附帶權力。上述兩種說法的任何一種都不能接受。是否要以隱含方式施加權力在上訴待決期間暫緩執行有關事項，必須取決於每宗個案的整體情況。\n47.\n若標的事項尚未在上訴待決期間暫緩執行，則在上訴待決期間不遵照該標的事項行事，將可能產生嚴重後果。本案本身已充分説明這一點。如上文所述，\n第36B(1)條\n的末部訂明，如局長已向持牌人或其他人發出指示，則“持牌人或該人須實行該項指示” ，否則便會違反\n《電訊條例》\n。而根據\n第34(4)條\n，一旦持牌人違反\n《電訊條例》\n，該人的牌照可能被暫時吊銷最高12個月甚或被取消。\n48.\n可向上訴委員會提出上訴的事項，包括該等不引起自動在上訴待決期間暫緩執行的事項，可帶來重大影響。該等事項可能涉及複雜的法律及事實問題。上訴委員會有權聽取口頭證據。上訴委員會可能隔了相當長的時間才達致決定。再者，在上訴委員會席前進行的聆訊雖是上訴，但卻會是上訴人得到的首次聆訊。\n49.\n針對局長拒絕按\n《釋義及通則條例》\n第46條\n暫緩執行有關事項而進行的司法覆核，將不足以履行上訴委員會如有酌情權在上訴待決期間暫緩執行有關事項時的職能。\n《電訊條例》\n中有條文就向上訴委員會提出全面的是非曲直方面的上訴而作出規定。由將會聆訊有關上訴的機構以外的另一機構決定是否在上訴待決期間暫緩執行有關事項，便會流於累贅和低效率。上訴審裁機構本身會處於最佳位置：就上訴的成功機會採取觀點；衡量贊成與反對在上訴待決期間暫緩執行有關事項的所有相關考慮因素；並為該機構所頒發的暫緩執行令制訂任何適用條款。\n50.\n本院就是要在上述背景情況下回答本席剛才提述的問題，即在上訴待決期間暫緩執行有關事項的酌情權是否屬於上訴委員會為對全面的是非曲直方面的上訴有效行使其明示司法管轄權而必需的、且可引伸自法例含意的附帶權力。根據該問題的背景情況，本席對該問題給予肯定的答案。因此，在無須進而考慮關乎違憲的陳詞下，電訊盈科應已獲判勝訴。\n結果\n51.\n基於上述理由，本席裁定上訴得直，並宣告上訴委員會具有酌情權在上訴待決期間暫緩執行有關事項。由於與訟雙方的共識是本上訴的訟費須視乎訴訟結果而定，因此本席向電訊盈科判給其在本上訴的訟費，當然包括上訴法庭曾下令歸於本上訴中的上訴許可申請所涉訟費。至於在上訴委員會主席席前所涉的訟費及電訊盈科在上訴法庭聆訊中的其餘訟費，由於與訟雙方沒有共識，因此本席作出指示，此等訟費將在與訟雙方於21天内提供書面陳詞後由本院以書面形式處理。\n終審法院常任法官陳兆愷：\n52.\n本席同意本院常任法官包致金的判決及本院常任法官李義的判決。\n終審法院常任法官李義：\n53.\n本席已閲讀本院常任法官包致金所撰備的判決擬本，並謹此對其內容表示贊同。本席認為，本案引發的各項論點均取決於\n《電訊條例》\n的詮釋，過程中並無需要考慮外在的立法資料或關乎基本權利的問題。\n54.\n第一個問題是：究竟是否正如以上訴委員會主席身分進行聆訊的資深大律師John Griffiths先生及上訴法庭所裁定，\n第32N(2)條\n禁止該委員會批准在針對局長發出的指示而向該委員會提出的上訴尚待裁決期間擱置執行該項指示？\n第32N(2)條\n訂明：\n“(2) 除第(3)款另有規定外，任何上訴不得令標的事項暫緩執行。”\n55.\n然而，這項條文對該委員會在批准擱置執行方面的權力隻字不提。該條文是關乎“上訴”的法律後果，而按其文意並正如第(3)及(4)款所顯示，“上訴”是指“提出上訴”或“提交上訴通知” 。於關鍵時間，此等條款規定如下：\n“(3) 凡有任何上訴提出，而標的事項屬\n第36C條\n所訂範圍之內，則該事項須自上訴提出之日起暫緩執行，直至該上訴已有裁定、被撤回或被放棄為止。\n(4) 欲提出上訴的人須於他知道或理應知道所建議的標的事項後的14日內，向上訴委員會提交上訴通知。”\n56.\n提交上訴通知是上訴人的行爲，不是該委員會的行爲，而按\n第36C條\n所訂並附於上訴事項的任何懲罰“自上訴提出之日起”暫緩執行，直至該上訴被處置為止。該暫緩執行是自動的，無須由任何人 — 特別是無須由該委員會 — 頒令擱置或暫緩執行有關懲罰。\n57.\n因此，\n第32N(2)條\n所提述的除屬\n第32N(3)條\n的情況外“任何上訴不得令標的事項暫緩執行”，純粹是關乎自動暫緩執行，而這清楚顯示，除了涉及\n第36C條\n所訂懲罰的個案之外，並無單單以提出上訴為由而存在的自動暫緩執行。\n58.\n這樣的規則並非不尋常。舉例說，具有相類效果的\n第59號命令\n第13(1)(a)條\n規則規定：\n“除下級法庭或上訴法庭或單一名法官另有指示外，上訴不具有將根據下級法庭的決定作出的執行或進行的法律程序擱置的效力。”\n59.\n於是，按其正確詮釋，\n第32N(2)條\n沒有處理 — 也因而沒有排除 — 有權酌情批准擱置執行。\n60.\n該委員會是否具有這種明文規定的或隱含存在的權力？本席同意本院常任法官包致金所言，即對於藉隱含方式賦予這種權力的恰當處理方法已述明於案例\nGrassby v.\nR\n(1989) 168 CLR 1\n第17頁以及在\nPelechowski v.\nRegistrar, Court of Appeal (NSW)\n(1999) 198 CLR 435\n案得到闡釋：若是為有效行使相關下級法院或裁判機構所獲明文授予的法定司法管轄權而有需要，意指“合理所需”，就會藉隱含方式賦予這種權力。\n61.\n與本案有關的權力，是\n第32O(4)條\n授予該委員會處置上訴的權力。此等權力使該委員會能就局長的決定進行全面的是非曲直審核：\n“上訴委員會聆訊某宗上訴後，須就該宗上訴作出裁定，它可維持、更改或撤銷有關的標的事項，並可按需要作出相應的命令。”\n62.\n明顯地，假如該委員會要在將作裁定的上訴中有效地行使其處置該上訴的權力，則在某些情況可能有必要暫緩執行局長的指示或命令。據此，毫無疑問的是有合理需要以隱含方式賦予這種權力，使上訴委員會能有效地履行其法定的審理上訴的職能。\n63.\n用以反對該委員會具有這種權力的，只有“避免上訴程序被濫用”這項政策。但由於這項隱含的暫緩執行權力屬酌情性質，因此可假設該委員會將拒絕批准任何構成濫用程序的擱置申請。就自動暫緩執行而言，“防止濫用程序”政策合情合理。\n第32N(2)條\n旨在排除這種濫用，方法是表明純粹提出上訴（\n第36C條\n除外）並不引起任何自動暫緩執行。但委員會在上訴待決期間暫緩執行局長的指示這項酌情權，並不促使上述濫用。\n64.\n基於本院常任法官包致金所給予的理由，本席同意\n第32O(7)條\n並無提供基礎以支持裁定上訴委員會具有明示權力批准臨時擱置。\n終審法院非常任法官梅師賢爵士：\n65.\n本席同意本院常任法官包致金的判決及本院常任法官李義的判決。\n終審法院首席法官李國能：\n66.\n本院一致判決上訴得直，宣告上訴委員會具有酌情權在上訴待決期間暫緩執行有關事項，並頒令判給電訊盈科在本上訴中的訟費。本院指示訴訟雙方於21天内就上訴委員會席前及上訴法庭席前所涉的訟費提交書面陳詞。\n（李國能）\n終審法院首席法官\n（包致金）\n終審法院常任法官\n（陳兆愷）\n終審法院常任法官\n（李義）\n終審法院常任法官\n（梅師賢爵士）\n終審法院非常任法官\n御用大律師Peter Roth先生與大律師Roger Beresford先生（由眾達國際法律事務所延聘）代表上訴人\n資深大律師鄭若驊女士與大律師莫樹聯先生（由律政司延聘）代表答辯人\n[本譯文由法庭語文組專責小組翻譯主任翻譯，並經由湛樹基律師核定。]", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2004/FACV000014Y_2004.docx", + "file_name": "FACV000014Y_2004.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkcfa/2006_HKCFA_44/case.json b/zh_cases_hkcfa/2006_HKCFA_44/case.json new file mode 100644 index 0000000..8cae09d --- /dev/null +++ b/zh_cases_hkcfa/2006_HKCFA_44/case.json @@ -0,0 +1,26 @@ +{ + "Date": "6 Apr, 2006", + "Action No.": "FACV22/2005", + "Neutral Cit.": "[2006] HKCFA 44", + "case_title": "香港聯合交易所有限公司 對 新世界發展有限公司及另四人", + "page_title": "香港聯合交易所有限公司 對 新世界發展有限公司及另四人 | [2006] HKCFA 44 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "FACV22/2005", + "link": "https://www.hklii.hk/tc/appealhistory/FACV/2005/22" + } + ], + "case_url": "https://www.hklii.hk/tc/cases/hkcfa/2006/44", + "neutral_cit": "[2006] HKCFA 44", + "court_code": "HKCFA", + "content": "FACV22Y/2005 香港聯合交易所有限公司 對 新世界發展有限公司及另四人\n[Chinese Translation - 中譯本]\nFACV 22/2005\n香港特別行政區\n終審法院\n終院民事上訴2005年第22號\n（原高院上訴法庭民事上訴2004年第170號）\n______________________\n上訴人\n香港聯合交易所有限公司\n(THE STOCK EXCHANGE OF HONG KONG LIMITED)\n對\n第一答辯人\n新世界發展有限公司\n(NEW WORLD DEVELOPMENT COMPANY LIMITED)\n第二答辯人\n拿督鄭裕彤博士\n(DATO’ DR CHENG YU TUNG)\n第三答辯人\n鄭家純博士\n(DR CHENG KAR-SHUN, HENRY)\n第四答辯人\n冼為堅博士\n(DR SIN WAI-KIN, DAVID)\n第五答辯人\n梁仲豪\n(LIANG CHONG-HOU, DAVID)\n______________________\n主審法官：\n終審法院常任法官包致金\n終審法院常任法官陳兆愷\n終審法院常任法官李義\n終審法院非常任法官鮑偉華爵士\n終審法院非常任法官伍爾夫勳爵\n聆訊日期：2006年3月21及22日\n判案書日期：2006年4月6日\n_________________\n判 案 書\n_________________\n終審法院常任法官包致金：\n1.\n本席同意常任法官李義的判決，裁定上訴得直，並判給上訴人於本院及下級法庭的訟費。儘管我等無法認同上訴法庭的看法，但由於上訴法庭曾極力表述其觀點，故為表尊重，本席謹此略抒己見。《基本法》第35條所屬的章節，載列在香港所享有的憲法權利和自由。這些權利和自由受司法機關保障，而司法機關的獨立性透過《基本法》的結構性條文而得以維持。因此，當第35條提述「法院」或「法庭」時，其所指的顯然只是司法機關，別無其他。這與上訴法庭對「程序公平」所正確地給予的重要性絕不相悖。「程序公平」規則引伸適用於本案各名答辯人所面對的紀律委員會。但委員會還未有機會在知悉相關情況而非單憑猜測下考慮應如何將「程序公平」規則妥為運用到各名答辯人的情況。因此，即使撇開應先用盡在有關規管制度下可供使用的覆核和上訴渠道這個問題不談，答辯人訴諸司法覆核之舉顯然是過早。\n終審法院常任法官陳兆愷：\n2.\n本席同意常任法官包致金和常任法官李義的判決。\n終審法院常任法官李義：\n3.\n本宗上訴源於各名答辯人以申請司法覆核的方式，質疑聯合交易所一個紀律委員會的主席所發出的某些程序指示。該等指示是在有關紀律聆訊開始前發出，聆訊因而暫時擱置。答辯人聲稱有權在聆訊中由律師擔任其全面法律代理，負責訊問和盤問證人以及作出口述陳詞。本院現要裁定的是，《基本法》第35條（「\n第\n35\n條\n」）是否賦予他們這一項權利?本院亦必須判決，有關指示是否（如答辯人所辯稱）侵犯答辯人根據《香港人權法案》第10條（「\n第\n10\n條\n」）所享有的接受公正審問的權利及/或違反普通法下的「程序公平」原則；抑或答辯人是否（如上訴人陳詞所言）未能證實、或在目前不能證實曾出現該種侵犯，原因是答辯人過早提出質疑和沒有首先盡量利用交替補救方法。\nA. 涉案各方\n4.\n第一答辯人（「\n新世界\n」）是一所在上訴人（「\n港交所\n」）營辦的交易所上市的公司。其餘四名答辯人是新世界的執行董事（統稱「\n有關董事\n」）。\n5.\n港交所是根據\n《公司條例》\n（\n第32章\n）成立的公司，並依據\n《證券及期貨條例》\n（\n第571章\n）\n第19條\n所授予的權限營辦交易所。它受到證券及期貨事務監察委員會（「\n證監會\n」）監管、監察和規管：\n《證券及期貨條例》\n第5(1)(b)條\n。按\n《證券及期貨條例》\n第21條\n，港交所有責任「確保……在合理地切實可行的範圍内……在有秩序、信息靈通和公平的市場中……」，「以維護公衆利益為原則而行事，尤其須顧及投資大衆的利益」。它必須把公衆利益放在本身利益之上。\n6.\n在證監會批准下，港交所獲賦權訂立規章，包括為規管市場、確保市場有效率地運作以及為規管交易所參與者及交易權持有人而訂立規章。港交所亦明文獲賦予其他權力，包括訂立規章以設立操守標準、就違反規章施加制裁以及制定程序（\n《證券及期貨條例》\n第23條\n）。稱爲《\n上市規則\n》的規章便是依據這些規定訂立。\n7.\n港交所董事會安排由「\n上市委員會\n」履行港交所的職務及職權，包括實施和執行《上市規則》（《上市規則》第2A.01及2A.27條）。上市委員會由25名委員組成，當中包括交易所的個別參與者、上市公司董事、市場從業人士及專家，以及港交所的控股公司（即香港交易及結算所有限公司（「\n交易及結算所\n」））的行政總裁（其為當然委員）。只有後者是港交所的僱員。其他委員屬自願參與，憑藉他們的經驗、專業或職業資歷以及有暇履行委員職責而獲委任（《上市規則》第2A.17及18條）。\n8.\n上市委員會繼而已安排由\n上市科\n（由港交所僱員組成）履行若干職務（《上市規則》第2A.02條）。舉例說，上市科負責執行和實施《上市規則》，職責包括調查和跟進紀律事宜。凡上市科相信曾出現違規事宜，它須向上市委員會報告。上市委員會以處理紀律事宜的身分舉行會議時，由一個小組委員會組成，其會議法定人數為五人，成員全由上市委員會的委員擔任。儘管在不同的規章中，它只被簡單地稱爲「上市委員會」，但為方便起見，本席將稱它為「\n紀律委員會\n」。\n9.\n作爲准許在港交所買賣股份的條件之一，發行公司必須與港交所訂立\n上市協議\n。該協議列出某些契諾，包括承諾遵守《上市規則》（第2(3)段）。新世界已妥為訂立這種協議。\n10.\n另一項上市條件是，發行公司的董事必須向港交所作出內容要旨如下的承諾：\n「……在執行發行人董事的權力及職責時，本人須(i)盡能力遵守不時生效的《香港聯合交易所有限公司證券上市規則》（《上市規則》）；(ii)盡最大努力促致發行人遵守《上市規則》；……」\n本案各名有關董事均曾作出上述承諾。\nB. 事實背景\n11.\n新世界截至2000年12月31日為止的六個月中期業績，預期於2001年3月中發布。各家投資行的財務分析員照例提供他們對預期數字的預測。2001年3月9日，其中一家投資行高盛（Goldman Sachs）預測新世界的中期利潤為7億3千萬元。另一家投資行唯高達（Vickers Ballas）則於3月12日預測數字為6億2千8百萬元。然而，到了3月14日，該批分析員和某些其他分析員發表和轉傳經急劇下調的預測，把新世界的預期中期利潤預測為約3億元。據上市科指出，當日市場上有3千3百50萬股新世界股票（代表其已發行股本的1.6%）進行買賣，較之前10天的平均交投量高出4.4倍以上。新世界的股價於3月14日跌至10.10元，之前曾分別以13.40元、12.60元和11.60元於3月9日、12日和13日進行買賣。新世界公布它不知道股價下跌和交投量增加的原因。\n12.\n新世界於3月15日正式公布中期利潤為3億1千1百40萬元。當天早上和翌日，報章上有文章意指該等業績曾被選擇性地泄露給某些分析員。\nC. 上市科對答辯人的指控\n13.\n2002年5月17日，上市科依據證監會於調查有人涉嫌進行内幕交易的個案期間取得的陳述書及材料，去信新世界董事會，表示上市科認爲新世界及有關董事違反了對港交所的某些義務，並説明上市科有意向他們展開紀律程序。答辯人於2002年6月24日發出信件，尋求反駁該等指稱，但不成功。同年10月4日，上市科向上市委員會提交詳細報告（「\n有關報告\n」），確認上市科認爲答辯人已違反某些規則，並建議以公開指責的方式向他們施加制裁。其後，上市科邀請紀律委員會對新世界另外施加補救性措施，目的是防止將來再有股價敏感資料被泄漏。\n14.\n上市科在有關報告中聲稱，在新世界發布業績之前，其企業傳訊部一名僱員郭先生（Terence Kwok）於2001年3月13日致電數名分析員，向他們披露該等中期利潤數字，導致分析員發布修訂預測。郭先生否認曾作出該等披露。\n15.\n按上市協議第2段，新世界須在合理可行的情況下，盡快向其成員及一般投資大衆提供與集團有關的任何股價敏感資料。上市協議特別訂明：\n「向發行人[即新世界]及其顧問以外的人士透露有關資料的方式，不應令任何人或任何界別或類別人士有機會在證券交易中處於優越地位。發放資料的方式，不應導致證券以不能反映公衆人士所得最新資料的價格在本交易所買賣。……」（§2.1）\n16.\n上市科辯稱，由於郭先生是在受僱期間作出被指的披露，因此新世界必須為泄露一事負責，從而須被視爲違反了第2段。新世界對此予以否認。\n17.\n上市科指稱，有關董事違反上述承諾，因為他們未有促使新世界設立適當監控措施，以防止股價敏感資料被不當披露。有關董事否認該項指稱。\nD.\n受爭議的程序指示\n18.\n2003年5月，紀律委員會主席就紀律聆訊向有關各方發出程序指示擬稿，以徵詢他們的意見。擬稿建議「按照紀律程序所訂的慣常做法」，限制法律顧問在聆訊中的作用，不准許顧問「向委員會陳詞（不論就口述陳詞還是在事實或其他方面訊問證人而言）。」\n19.\n上市科曾於早前（2002年12月3日）的書面陳詞中表示，如傳召證人，所有證人接受大律師訊問和盤問將屬恰當，並補充說「不過，……此事應由上市委員會決定」。答辯人致函主席，試圖説服他對上述指示擬稿作多項修改，包括准許答辯人在聆訊中不受限制地使用律師服務，但不成功。\n20.\n2003年6月25日，主席發出程序指示，引發答辯人申請司法覆核（「\n有關指示\n」）。有關指示要求有關各方界定他們之間的事實爭議點以及披露將要傳召的證人的證據内容（而所披露的證據將成爲主問證據），然後表示：\n「 3. 在實質聆訊中，上市科、[新世界]及[有關董事]只可以就有關各方所辨識為受到爭議的事實爭議點……以及[所披露的關乎上述證據的資料所辨識的]事實爭議點而盤問事實方面的證人。\n4. 擬傳召證人出席實質聆訊的有關一方，須完全承擔傳召證人出席的責任。\n5. 若無其他規定，則上市科、[新世界]及[有關董事]的陳詞，將按照《紀律程序》所訂的慣常做法作出（在所有口頭作證完結後而在作出結案陳詞之前，各方將獲給予簡短機會諮詢法律顧問）。\n6. 法律顧問不獲准向[紀律]委員會陳詞（不論就口述陳詞還是在事實或其他方面訊問證人而言）。\n7. 准許上市科、[新世界]及[有關董事]由法律顧問陪同（陪同出席實質聆訊的法律顧問人數不限）。」\n21.\n按原訟法庭法官夏正民的理解，有關指示並不禁止由法律代表訊問（本判案書中，本席將概括地使用該詞來包括「\n盤問\n」）證人，但亦沒有就該問題作決定。在代表主席一方曾發出日期為2005年5月4日的函件，以回覆上訴法庭法官張澤祐的提問，主席在信中確認「把可否由大律師或其他人士訊問或盤問證人的問題，蓄意留待在實質聆訊中如有任何一方向委員會提出有關申請時才作決定」。然而，資深大律師John Griffiths先生（與大律師Richard Zimmern先生及大律師李詠文女士一同出席代表答辯人）陳詞說，本院應純粹根據有關指示來處理本宗上訴，不應理會2005年5月4日的函件。他辯稱，本院在判斷該等程序安排是否合法時，應以有關指示已確切地完全禁止由答辯人的法律顧問訊問證人和作出口述陳詞為基礎。至於這個處理方法是否正確，本席將在本判案書稍後部分加以考慮。\n22.\n答辯人亦辯稱，不管怎樣，對法律代表的限制屬不合法。答辯人要求本院裁定，紀律委員會原則上必須在不設限制下准許法律顧問訊問證人以及在聆訊中向委員會作口述陳詞。\nE.\n上市委員會在紀律方面的權力\n23.\n該等受爭議的程序指示，必須根據下文提述的《上市規則》及《紀律程序》的文意來理解。\n24.\n《上市規則》訂定一系列就違規事項所可施加的制裁（《上市規則》第2A.09條）。那些制裁按輕重由「發出私下譴責」開始，接著是「作出公開指責」（上市科在本案便是尋求施加此項制裁），再高一級是「發出指令」，禁止個別人士繼續參與交易所的活動。最嚴重的制裁涉及停牌或取消公司的上市地位。\n25.\n《上市規則》訂明，該等制裁不但可向上市公司及其董事（他們與港交所有合約上的關係）施加，而且可向其他人施加，包括主要股東及專業顧問（《上市規則》第2A.10條）。\n26.\n遭施加上述制裁的一方，「有權將該決定再提呈上市委員會作覆核」，而且就大部分制裁而言，「上訴人」還另外有權「向上市上訴委員會申請再次及最後覆核有關的決定」（《上市規則》第2A.11條）。中級覆核由上市委員會的成員組成一個委員會進行（下稱「\n覆核委員會\n」），但曾在初審擔任紀律委員會成員者不能出任覆核委員會成員。上市上訴委員會由交易及結算所董事會的主席及兩名董事組成（《上市規則》第2A.29條）。\nF. 《紀律程序》\n27.\n《上市規則》只簡略提及紀律程序的進行，但該提述表示律師在聆訊中只能起有限的作用。《上市規則》第2A.16條規定：\n「在上市委員會進行的任何紀律程序及在上市委員會或上市上訴委員會為進一步覆核決定而產生的程序，所涉及該等程序的有關各方有權出席會議、提交意見及在其專業顧問陪同下出席。在所有紀律程序中，上市科將於會議舉行前向有關各方提供其將於會議上提呈的文件的副本。」\n28.\n至於詳細程序，則由「《\n紀律程序\n》」訂明。《紀律程序》是上市委員會依據《上市規則》第2A.15條訂立的規則（《紀律程序》第2.3條），也是有關指示第5段所提述的紀律程序。\n29.\n《紀律程序》第2.7條將紀律委員會的職能界定為「根據在其席前的事實，決定曾否發生違反《上市規則》的情況，並在裁斷曾發生違反《上市規則》的情況時，決定應施加的適當制裁。」委員會必須「顧及所有相關情況，包括書面陳詞所載述的事實、附隨陳詞的文件證據，以及在聆訊中……作出的所有口頭證據及陳詞」。\n30.\n《紀律程序》第2.5條訂明聆訊「主要以書面陳詞的方式進行」，並詳加闡述如下：\n「儘管程序容許在聆訊中作出有限度的口述陳詞，但所有陳詞應盡可能以書面載述，並在聆訊之前提交[紀律委員會]……此舉讓聆訊其他各方可公平地得到案情通知，並有助確保聆訊盡可能簡短。考慮到審裁組的性質，[紀律委員會]不鼓勵冗長的口述陳詞，而即使口述陳詞被認爲有必要，口述陳詞所涵蓋的事項亦應限於書面陳詞所沒有載述者。」\n31.\n主席在有關指示中對法律代表一事所採取的處理方法，是《紀律程序》第5.1及6.3條的反映。這兩項條文的相關內容如下：\n「有關一方可由法律顧問陪同。有關代表[即上市科的代表]通常不會、但可以由獨立法律顧問陪同，而假如有獨立法律顧問陪同，則有關一方／各方將按照上文第4.5段獲給予通知。儘管有關一方在初審聆訊的任何階段均可和其法律顧問進行商議，但所有陳詞應由有關一方／各方作出，而對於主席及／或出席初審聆訊的[紀律委員會]任何成員向有關一方提出的所有問題，該方必須直接回答，不得透過其法律顧問回答。」（《紀律程序》第5.1條）\n「初審聆訊的程序步驟如下：……\n— 出席聆訊的[紀律委員會]成員可向有關代表、有關一方／各方及出席聆訊的任何人提出任何與紀律研訊有關的問題。有關人士須直接回答向其發問的問題，不得透過其法律顧問回答，儘管由法律顧問陪同的任何一方，可在回答問題前和其法律顧問商議。然而，出席聆訊的[紀律委員會]成員，可要求任何出席聆訊的法律顧問澄清或詳細闡述其當事人所提供的答案；\n— 有關代表及有關一方／各方如有此意願，可就初審聆訊時所產生的事宜作出最後口述陳詞，陳詞次序以有關代表為先。由法律顧問陪同的任何一方，可在作出該最後陳詞之前和其法律顧問商議。」（《紀律程序》第6.3條）\n32.\n《紀律程序》強調紀律程序是不拘形式的：\n「上市委員會為非法律專業及不拘形式的審裁組，上市委員會的意向亦是保持初審聆訊不拘形式。」（《紀律程序》第6.1條）\n「證據規則並不適用。上市委員會可接收任何書面或其他形式的材料，並給予這些材料其認爲適當的分量，即使該種材料在民事或刑事法律程序中可能不獲接納，情況亦然。」（《紀律程序》第6.2條）\nG.\n總結紀律委員會的特性\n33.\n從以上論述，可總結出紀律委員會的特性如下。\n(a) 雖然紀律委員會本身並非由法例設立，但它的作用及存在是源自\n《證券及期貨條例》\n所加諸港交所的責任，即規管證券市場及以符合投資大衆的利益的方式行事。紀律委員會是維護該等利益的機制的一部分。\n(b) 港交所為了同一目的而訂立《上市規則》。儘管《上市規則》本身並非法定，但它們是獲\n《證券及期貨條例》\n明示授權訂立的。上市科把涉嫌違規者帶到紀律委員會席前，後者的任務便是要決定違規的指稱是否成立，而假若成立，應當施加何等制裁方屬適當。\n(c) 正如所有人認同紀律委員會，在執行該項任務時，必須以公正明斷的方式行事以及妥為考慮所有相關情況。它制訂《紀律程序》，確立一套適用於該委員會的程序的一般程序規則。\n(d) 紀律委員會有權施加制裁。制裁的範圍，從發出輕微譴責到發出指令不等，而那些指令可嚴重影響有關人士的聲譽及專業地位。《上市規則》既表明有權對那些與港交所有合約上關係的人士（像本案答辯人般）施加該等制裁，亦表明有權對市場所涉及的其他人士施加該等制裁。\n(e) 遭施加制裁的人士，有權要求覆核委員會重新聆訊，如有必要，亦有權向上市上訴委員會提出同樣要求。\n(f) 紀律委員會、覆核委員會及上市上訴委員會的成員均非法官或律師，而是市場從業人員及專家。他們獲挑選出任，是因為他們對市場活動具有知識、經驗和資歷。\nH.\n所尋求的濟助\n34.\n答辯人提起司法覆核法律程序，質疑他們所指的「有關決定」，即主席發出有關指示之舉，並尋求下列濟助：\n「 1. 要求法庭宣告：在有關決定看來是令[答辯人]不能在針對[答辯人]的紀律程序聆訊中得到法律代表或恰當及有效的法律代表的範圍内，有關決定為無效或沒有法律效力，理由是有關決定刻意剝奪（或在有關情況下必然剝奪）[答辯人]接受公正聆訊及得到應有的法律代表的權利，違反《基本法》、\n《香港人權法案條例》\n（\n第383章\n）及根本的自然公義規則。\n2. 要求法庭作出移審令，以撤銷有關決定。\n3. 要求法庭發出履行義務令，強迫紀律委員會容許[答辯人]在針對[答辯人]的紀律程序中自行選擇法律代表，作為[答辯人]的全面及不受阻礙的法律代理，尤其包括承認[答辯人的]法律顧問享有當然權利，在所有由紀律委員會針對[答辯人]而進行的紀律程序的聆訊中，向紀律委員會陳詞（包括作出口述及書面陳詞）和訊問事實方面的證人。」\nI. 下級法庭的判決\n35.\n原訟法庭法官夏正民裁定（他的判決刊載於\n[2004] 2 HKLRD 1027\n），就\n第35條\n而言，紀律委員會並非「法院」或「法庭」。他亦裁定，藉有關指示和《紀律程序》而訂立的程序安排，並未使答辯人得不到公正聆訊，亦沒有違反\n第10條\n或普通法下的公平原則。因此，雖然夏正民法官裁定，在涉案情況下，司法覆核申請即使在如此初段提出仍有理可據，但他拒絕給予答辯人所尋求的濟助，並駁回申請。\n36.\n上訴法庭（其判詞刊載於\n[2005] 2 HKLRD 612\n）雖然同意案件有理由在現階段接受司法覆核，但一致推翻夏正民法官的判決。上訴法庭裁定，紀律委員會屬\n第35條\n所指的「法院」或「法庭」，因此答辯人獲給予權利得到法律代表，而有關指示非法減損該權利。上訴法庭亦裁定，有關指示侵犯了\n第10條\n所賦予的接受公正審問的權利以及違反了相關的普通法原則。藉着於2005年5月27日頒發的命令，上訴法庭實質上批予答辯人所尋求的全部濟助。\nJ.\n紀律委員會是否屬\n第35條\n所指的「法院」或「法庭」？\n(i)\n憲法詮釋的問題\n37.\n從上文明顯可見，\n第35條\n能否幫助答辯人，須取決於紀律委員會是否屬\n第35條\n所指的「法院」或「法庭」。\n第35條\n規定：\n「香港居民有權得到秘密法律諮詢、向法院提起訴訟、選擇律師及時保護自己的合法權益或在法庭上為其代理和獲得司法補救。\n香港居民有權對行政部門和行政人員的行爲向法院提起訴訟。」\n38.\n紀律委員會是否屬於\n第35條\n下「有權……選擇律師……在法庭上為其代理」一句所指的「法庭」，首先及主要是一個關乎憲法詮釋的問題。\n39.\n本院處理憲法詮釋問題的方法，在\n入境事務處處長對莊豐源\n(2001)4 HKCFAR 211\n案中有所解釋。正如本院首席法官李國能指出：\n「法院根據普通法解釋《基本法》時的任務，是詮釋法律文本所使用的字句，以確定這些字句所表達的立法原意。」（彙編第223頁）\n在詮釋過程中，法院「並不純粹探討有關條文的字句本身」，而是在「顧及條文的背景及目的」下考慮該等字句。此外：\n「為協助解釋有關條文，法院會考慮《基本法》的内容，包括《基本法》内除有關條文外的其他條文及其序言。這些都是有助解釋有關條文的内在資料。」（彙編第224頁）\n40.\n上述原則在本案尤其合用。《基本法》內有許多其他條文提述「法院」或「法庭」一詞，而這些條文構成\n第35條\n所在的背景，並可能對理解\n第35條\n的原意提供重要的指引。我們會問：該等其他條文所提述的「法院」或「法庭」，究竟是指哪些機構？在顧及該等條文下解釋\n第35條\n的用語，當它提及「在法庭上為其代理」時，它所指的是否相同或某些不同的機構？\n(ii)\n《基本法》其他條文所提述為「法院」或「法庭」的機構\n41.\n《基本法》其他條文所提述為「法院」或「法庭」的機構的身分，實毋庸置疑。再者，作爲該等條文的基礎，《基本法》的主要目的相當清晰。\n42.\n《基本法》首個明顯目標，是設立香港特別行政區，而按照「一國兩制」的方針，香港特區的法律制度獨立於内地的法律制度。因此：\n(a) 按\n第2條\n，全國人民代表大會授權香港特區「依照本法的規定實行高度自治，享有行政管理權、立法權、獨立的司法權和終審權」。\n(b)\n第19條\n加以闡述，表明上述獨立司法權由本港法院行使：\n「[香港特區]享有獨立的司法權和終審權。[香港特區]法院除繼續保持香港原有法律制度和原則對法院審判權所作的限制外，對[香港特區]所有的案件均有審判權。[受限於與本案無關的一些例外規定]」\n(c)\n第80條\n繼而表明，有關法院是司法法院，組成香港特區的司法體制：\n「[香港特區]各級法院是[香港特區]的司法機關，行使[香港特區]的審判權。」\n(d)\n第81條\n具體指明有關法院：\n「[香港特區]設立終審法院、高等法院、區域法院、裁判署法庭和其他專門法庭。高等法院設上訴法庭和原訟法庭。……」\n43.\n《基本法》的第二個目的，是要為先前和現時法院和司法體制之間的延續性作出規定。因此，作爲例子：\n(a)\n第81條\n訂明「……原在香港實行的司法體制，除因設立[香港特區]終審法院而產生變化外，予以保留。」\n(b)\n第87條\n規定「[香港特區]的刑事訴訟和民事訴訟中保留原在香港適用的原則和當事人享有的權利」；法院依照香港原有法律審判案件（\n第8\n及\n18條\n）；「其他普通法適用地區」的司法判例可作參考（\n第84條\n）；法官和其他司法人員均可留用，其年資、薪金水平等予以保留（\n第93條\n）。\n44.\n就法院而言，《基本法》第三個明顯目的，是要確立負責法院運作的司法機關的獨立性。\n(a)\n第85條\n就這一點明文規定：\n「[香港特區]法院獨立進行審判，不受任何干涉，司法人員履行審判職責的行爲不受法律追究。」\n(b) 《基本法》其他條文亦反映這一點，比如\n第88條\n訂明任命法官的機制；\n第92條\n強調選用法官應根據其本人的司法和專業才能；\n第89條\n確立只可在有限的情況下把法官免職。\n45.\n因此，十分清楚的是，當《基本法》在該等條文中提述「法院」或「法庭」時，它是指司法法院：受託負責在香港特區行使司法權並構成香港特區司法體制的機關。本席將簡單地稱之爲「\n法院\n」。上述《基本法》條文的目的，是要為該個以法院為中心的司法體制建立憲制架構、把該體制與内地的司法體制分開、確保先前與現行體制的延續性，以及保障司法機關的獨立性。\n46.\n上文G節已概述紀律委員會的特性。該委員會顯然並不行使《基本法》所授予香港特區的獨立司法權。因此，顯而易見的是，儘管該審裁體可履行若干審判職責，但上文論及的各項條文對它並不適用。\n(iii)\n第35條\n的詮釋\n47.\n第35條\n如何配合該等其他條文？它所提述的「法院」或「法庭」應否被給予不同和更廣泛的解釋，使\n第35條\n涵蓋如紀律委員會般的審裁體，即有別於上文所論及的《基本法》其他條文？Griffiths先生提出，對後者的答案應是肯定的。他指出\n第35條\n所屬的《基本法》第三章，是關於「居民的基本權利和義務」，與其他條文有所分隔。\n48.\n就本上訴而言，應注意\n第35條\n的兩個特點。首先，該條規定享有的憲法權利，不一定與法院程序有關。舉例說，對於「得到秘密法律諮詢」這項權利，即使該種諮詢與任何現有或打算進行的法院程序無關，該項權利也受到保護。這一點在不久前宣判的\n某律師對香港律師會\n（終院民事上訴2005年第23號；判案書日期：2006年3月22日）案中獲得承認。該案關乎賦權調查員查閲文件的條文是否合憲的問題。調查員由律師會委任，負責調查針對一名律師的紀律投訴，而調查員所要求查閲的文件，可能載有得自不涉及該紀律投訴的當事人的享有特權資料。儘管該名當事人不涉及任何相關的法院或審裁組程序，但他的特權有資格得享獨立保護。\n第35條\n的這些方面與本宗上訴所涉的爭議點無關，而本席在本判案書所言，亦絕對無意對該等權利的獨立而強大的力量造成影響。\n49.\n與本上訴最為相關的，是\n第35條\n的第二個特點。從其用語看來，\n第35條\n亦關乎對涉及「法院」或「法庭」的個人權利的保證：個人有權「向法院提起訴訟」、有權「選擇律師……在法庭上為其代理」、有權「獲得司法補救」，和「有權對行政部門和行政人員的行爲向法院提起訴訟」。\n50.\n這是《基本法》為香港特區司法體制而訂立的憲制架構內一個至關重要的額外特點。\n第35條\n確保《基本法》所賦予的基本權利，以及原有並繼續適用於香港特區的法律權利和義務均可由個人強制執行和可由法院審理。《基本法》內有條文確立法院為負責在香港特區行使獨立司法權的機關，而\n第35條\n給予這些條文生命力和實際效力。因此，\n第35條\n的這個特點，是關乎確保個人能為該等目的而向法院提起訴訟，而《基本法》其他相關條文則加以配合，確保訴諸法院得以體現。這個背景下的「法院」或「法庭」，顯然是指法院（courts of law），也就是上文所論及的《基本法》其他條文所提述的相同機關。本席因此拒絕接納Griffiths先生所提出的相反辯據。\n51.\n答辯人亦以本院之前所闡述的原則作爲依據。本院曾經表示：「對於第三章所載關於兩制中香港制度的重心所在、並受憲法保證的自由的條文，法院應以寬鬆的方式予以詮釋」（\n入境事務處處長對莊豐源\n(2001) 4 HKCFAR 211\n案第224頁）。誠然，該項原則已妥為確立，且無可置疑。然而，我們必須認清有關的基本權利或自由究竟涵蓋什麽。從憲法詮釋的角度來看，《基本法》在\n第35條\n中的關注點，顯然不在於保證在並非法院的審裁機構獲得法律代表的權利。無論以多寬鬆的尺度來詮釋該條文，都無法把其涵義擴展至答辯人所提倡的程度。\n52.\n由此可見，紀律委員會既然並非法院，因此也\n並非\n第35條\n所指的「法院」或「法庭」。對討論中的爭議點來説，這已具決定性。不過，有鑒於上訴法庭曾引用以往兩宗上訴法庭判例而得出不同的結論，本席宜在此審視該等判例和其所根據的一些案例法。\nK. 上訴法庭的早前判決\n(i)\n葉醫生案\n53.\n在\n葉紀蘆醫生對香港醫務委員會（第二號）\n[2003] 3 HKC 579\n案中，上訴人被醫務委員會裁定專業行爲失當罪名成立，並被取消執業資格三年。在紀律聆訊中，他曾要求把聆訊押後，理由是他希望安排法律代表，但他的要求被拒絕。上訴法庭於上訴聆訊的前一天提出醫務委員會是否屬\n第35條\n所指的「法庭」的問題，而代表醫務委員會的首席大律師未能就這個重要的問題提供任何協助。上訴人是親自應訊的。\n54.\n然而，上訴法庭法官張澤祐認爲能夠裁定醫務委員會\n屬\n第35條\n所指的「法庭」，而委員會拒絕押後聆訊乃屬侵犯葉醫生的憲法權利。上訴法庭法官袁家寧認爲她的判決毋須以\n第35條\n為依據。原訟法庭法官貝偉和則表示同意上述兩位法官的判決。本席必須表明，本判案書中所作的評論，純粹關乎上訴法庭指醫務委員會屬\n第35條\n所指的「法庭」的裁決。本席在本判案書中所言，絕對無意指上訴法庭按公平原則而得出的結論不正確。\n55.\n張法官作出判決時，就所應採納的一般處理方法提出兩項意見。\n(a) 首先，他看來採納一項推定爲起始點，該推定是把審裁機構視爲屬於\n第35條\n所指的「法庭」。他說：\n「在香港，使用審裁機構的情況如此普遍，如要將審裁機構排除於「法庭」這個一般字詞的範圍之外，便先要提出強而有力的理據」。（§6）\n本席欲立刻指出，本席看不到有任何基礎以支持這種處理方法。存在衆多審裁機構這一事實反而顯示有需要在其各種各樣的職能和特徵之間加以區別，而不是乾脆把它們全推定為「法庭」。\n(b) 其次，他說由於\n第35條\n涉及「香港居民的法律權利……「法庭」一詞就不應限於指[法院]（the courts of law）」（§7）。但是，本席謹認爲這無助於回答真正的問題：該條文所賦予的是什麽權利—聘用律師在什麽審裁機構為代理的權利？\n56.\n張法官的結論是醫務委員會屬\n第35條\n所指的「法庭」，因爲：該委員會是在「履行審判職責」，即「按照規則而非政策」來作出決定（引述Wade 與 Forsyth著\n《行政法》\n（第8版）第40頁）（§8）；它是一個「法定審裁機構」，其程序受法例條文管限（§9）；以及它的決定影響該名醫生的權利，並可涉及嚴厲的懲罰（§10）。\n57.\n本席稍後將討論上述因素的含意。不過，就目前議題而言，我們也許可注意，上訴法庭在作出關於\n第35條\n的判決之前，並未試圖按《基本法》的文意來詮釋\n第35條\n，亦未有引述任何相關案例典據。\n(ii)\n律師會案\n58.\n《法律執業者條例》\n（\n第159章\n）\n第10(2)(e)條\n賦權律師紀律審裁組下令某方按完全彌償基準支付紀律聆訊的訟費。在\n某律師對香港律師會\n（上訴法庭民事上訴案2002年第302號；主審法官：副庭長胡國興、上訴法庭法官張澤祐及原訟法庭法官貝偉和；判決日期：2004年2月18日）案中，涉案律師一方辯稱在該案行使上述權力並不合憲，並爭辯說，律師可能要支付巨額訟費的風險，使他怯於對失當行爲控罪進行抗辯，因而損害他訴諸律師紀律審裁組的權利和損害他在該審裁組席前獲得公平聆訊的權利，而這情況有違（除其他憲法條文外）\n第35條\n：§60至§63。本席應同樣地説明，本判案書所作的評論，純粹處理律師紀律審裁組是否屬\n第35條\n所指的「法庭」的問題，並無意圖就該判決在其他方面的正確與否發表任何意見。\n59.\n雖然胡國興副庭長傾向認爲律師紀律審裁組不屬\n第35條\n所指的「法庭」，但他認爲自己受\n葉醫生\n案約束，因此作結論認爲\n第35條\n對該審裁組適用：§74至§76。胡副庭長並沒有就該結論提出任何獨立理由。\n60.\n上訴法庭法官張澤祐表示維持自己在\n葉醫生\n案所表達的觀點（§172）。看來該案中的法庭之友接納「\n第35條\n中的『法院』或『法庭』一詞包括審裁機構」（§173）。張法官續說（在§174至§175）：\n「本席毋須進一步闡述這個爭議點。只要確認\n第35條\n是《基本法》在『居民的基本權利和義務』標題下的條文之一，便已足夠。本席認爲，在解釋這些權利時，可以顧及對香港有約束力的國際公約（例如《公民權利和政治權利國際公約》）中處理基本權利的條文，而這些條文亦有助解釋上述權利。關於人類價值觀念的原則，本質上是普世適用的，而維護人權乃是以法規為依據。本庭（副庭長黎守律、上訴法庭法官廖子明和梅賢玉）在\n張五常（Cheung Ng Sheong Steven）對東周刊出版有限公司（Eastweek Publisher Ltd）及另一人\n(1995) 5 HKPLR 428\n案中確認，香港法律應透過參照香港所承擔的國際條約義務來發展。\n《公民權利和政治權利國際公約》\n第14條\n保證在法院（courts）或法庭（tribunals）前接受公正審問的權利。它非只限於『法院』。這項權利顯然包括訴諸法院（courts）或法庭（tribunals）的權利。因此，若把\n第35條\n所指的『法院』或『法庭』局限於傳統法院或法庭，便是極為牽強。」\n61.\n因此，張法官接納，在這個情況下，律師紀律審裁組是否屬\n第35條\n所指的「法庭」的問題，須藉着詮釋《基本法》某項條文而回答。然而，張法官並無參考《基本法》中處理「法院」或「法庭」的其他條文，而是純粹依據《公民權利和政治權利國際公約》（\n《國際公約》\n）\n第14條\n（這在香港制定為《香港人權法案》\n第10條\n）而進行詮釋。他的論證方式是這樣的：由於《國際公約》\n第14條\n同時適用於法院（courts）及法庭（tribunals），因此\n第35條\n亦應詮釋為涵蓋法院／法庭和審裁機構，因爲該條文的釋義應與香港特區的國際義務一致。\n62.\n本席不能接納上述論證方式。《國際公約》\n第14條\n（制定為《香港人權法案》\n第10條\n）獲《基本法》\n第39條\n明文收納。因此，《基本法》是透過\n第39條\n來處理相關國際義務以及對藉《香港人權法案》\n第10條\n的方式在香港實施的《國際公約》\n第14條\n賦予憲法地位。\n第35條\n則顯然與其他議題有關。如前述，\n第35條\n所關注的是受《基本法》交託負責在香港特區行使司法權的法院的憲制架構。像醫務委員會和律師紀律審裁組等審裁機構，並非該架構的一部分，而在這方面，《國際公約》\n第14條\n無關宏旨。\n63.\n除了說明上述詮釋方法之外，張法官亦返回採取他的「辨識因素」做法，即辨識有助支持作出某特定審裁機構屬「法庭」的結論的各項因素：\n「本席認爲，假如某審裁機構行使審判職責，而其審判權並非私人或經協議產生，則該機構受\n第35條\n涵蓋。行使審判職責的意思顯然是該機構將作出足以對在它席前有關各方的權利造成影響的裁決，而該等裁決將根據法律規則而作出，並將在依循訂明的方式而進行的程序之後作出。這個定義會排除像私人會所般的組織，該等組織的決定也可影響會員在比如撤銷會籍的事宜上的『權利』。」（§177）\n本席稍後將探討這個處理方法。\n64.\n原訟法庭法官貝偉和同意就\n第35條\n所作的結論。他在其他事宜上持不同看法，但該等事宜對於本案並不重要。\nL.\n上訴法庭在本案所作的判決\n65.\n在本案，上訴法庭張法官如此撮述他如何處理什麽構成\n第35條\n所指的「法院」或「法庭」的問題：\n「\n第35條\n確認獲得法律協助的重要性，特別是有權於法律程序中獲得法律代表的重要性。雖然這項條文明顯適用於法庭程序，但在決定它是否也適用於那些在法庭以外（例如審裁機構）舉行的程序時，須按個別情況來考慮。個別審裁機構的架構須予審視。然而，在這個處理方法的界限内，須注意下列相關原則：\n1. 《基本法》是憲法文件，因此在詮釋《基本法》時必須採取考慮其立法目的的處理方法。對於任何關乎居民的基本權利的條文，應當採取寬鬆的詮釋方法。\n2. 在香港，除了使用法庭外，使用審裁機構的情況亦相當普遍。有見及此，若要將審裁機構排除於\n第35條\n下『法院』或『法庭』這個一般字詞的範圍之外，便先要提出強而有力的理據。\n3. 一個審裁機構可能被叫作不同的名稱，但就此範疇而言，如何稱呼某審裁機構乃無關宏旨。\n4. 許多審裁機構由法規明文設立，但審裁機構由法規訂立並非令它受\n第35條\n涵蓋的唯一準則。同樣重要的是，該審裁機構屬於有關法例框架下的組成部分，而該立法框架是關乎和顧及與公衆利益有關的事宜。\n5. 受\n第35條\n所規限的審裁機構，不必是政府司法機關的一部分。假如審裁機構行使審判職責，而其審判權並非私人或經協議產生，該機構便受\n第35條\n涵蓋。\n6. 司法判決是根據規則而非行政政策作出。行使審判職責的意思是審裁機構將作出足以對其席前有關各方的權利造成影響的判決，而該等判決將根據法律規則並將在以訂明方式進行的程序之後作出。」（\n[2005] 2 HKLRD 612\n, §39）\n66.\n芮安牟法官在其述明理由的判決中，贊同張法官就\n第35條\n是否適用的問題而作出的結論。為決定某審裁機構是否屬\n第35條\n所指的「法庭」，芮安牟法官根據得自\n葉醫生\n案及\n律師會\n案的三個「深刻見解」來處理該問題（§103至§115）。第一、要緊的是審理場所的職能，而不是它的名稱。第二、有助確定審裁機構的特性的驗證標準包括(i)該機構在作出裁決時是否在行使審判而非行政職能（即運用規則而非純粹行政政策）；(ii)它的權力是否基於協議還是法定；和(iii)它所作的裁決的後果，是否可能對某人的聲譽或職業造成嚴重影響。第三個深刻見解是，即使某審裁機構屬\n第35條\n所指的「法庭」，但獲得法律代表的權利並非絕對，而是受到合法和相稱的限制。\n67.\n從其上述撮要第1點清楚可見，張法官亦承認案中出現憲法詮釋的問題。他強調須因應立法目的來詮釋憲法，並須以寬鬆的方式解釋基本權利。不過，看來他心中所想的可能就是他自己在\n律師會\n案中所曾採取的相同處理方法，即把\n第35條\n中的「法庭」解釋為伸展至涵蓋「審裁機構」，以期達到與《國際公約》\n第14條\n（相等於《香港人權法案》\n第10條\n）一致。本席基於上文所述的理由，已拒絕接納該種處理方法。\n68.\n本席亦已拒絕接納把審裁機構推定為法庭的處理方法（第2點）。本席認爲至關重要的，就是在顧及《基本法》其他相關條文的文意下並按照立法目的來詮釋\n第35條\n的時候，所得出的結論恰恰與第5點的說法相反：要使某審裁機構受\n第35條\n規限，它\n必須\n是構成司法體制的一部分並且在香港特區行使司法權的機關。\n69.\n本席認爲，上述在\n第35條\n方面的根本謬誤，影響了上訴法庭在本案的判決，以及\n葉醫生\n案和\n律師會\n案中的有關判決。他們沒有採取正確的方式來詮釋\n第35條\n，結果未能在顧及《基本法》的明顯目的 — 即是為了在香港特區行使司法權而奠定憲制基礎 — 這背景下詮釋\n第35條\n。\nM.\n關於「法院」或「法庭」概念的案例法\n70.\n上訴法庭的判決卻聚焦在辨識可顯示某特定審裁機構屬「法庭」的指標因素（取自英國的案例法）。張法官和芮安牟法官所贊同的因素，已在上文L節撮述。\n71.\n就本案而言，該種處理方法並不合用。在考慮各宗處理某個別審裁機構可否被視爲「法庭」的經彙編案例時，最重要的是該個爭議點在何等背景下產生。不同的問題可能要以不同的方式解答。表面看似相同的問題，可能得出不同的答案。舉例說，一個經常出現的爭議點，就是法院的某些公認特性是否適用於其「法庭」地位成疑的審裁機構。當然，這與本案所要處理的憲法詮釋問題迥然不同。事實顯示，在某些其他範疇內，就其相關目的而言，為決定某審裁機構是否屬「法庭」，普通法或法規所採納的準則，正是行使國家司法權的機關這個概念。但在其他情況下，對於什麽才具有「法庭」的資格，則可能採用不同的、也許更廣闊的概念。下述例子或可闡明背景的重要性以及它所導致的不同處理方法。\n(i)\n藐視法範疇內的「法庭」\n72.\nAttorney-General v BBC\n[1981] AC 303\n案所涉及的問題是：一個由當地《1948年地方政府法令》設立為「地方估值法庭」的機構，可否尋求藐視法的保護，使英國廣播公司可被禁制進行一項可能對一宗待決估值上訴不利的廣播。\n73.\n英國上議院法庭裁定，爲了保障表達自由，不應把藐視法的保護範圍擴至法院之外，即只有構成司法體制的一部分並行使國家司法權的法庭才受保護。上議院法庭運用該驗證標準，裁定地方估值法庭並不符合資格：\n「……依本席之見，受藐視法保護的下級法庭類別，應限於那些行使國家司法權的真正法院。」（引自Fraser of Tullybelton勳爵的判詞，彙編第353頁）\n「本席會識別法院，即司法法院，為依法設立的機構，行使概括的或受已界定限制的國家司法權。在這範疇內，司法權與立法和行政管理（即行政）權形成對比。如果受覆核的機構純為立法或行政目的而設立，則它即使要履行屬司法性質的職責，仍是國家立法或行政體制的一部分。雖然我們的法律在其發展階段從沒有設想過國家會使我們感到她在各種各樣的情況中到處存在，但透過由國家任命的法官行使國家司法權，仍是獨立和明顯地分開的政府職能。除非行使司法職能的機構獲證明是這個司法體制的一部分，否則，依本席之見，該機構並非法院。」（引自Scarman勳爵的判詞，彙編第359至360頁）\n74.\n同樣的準則獲《1981年藐視法庭法令》\n第19條\n採納。該條文規定：\n「在本法令中 — 『法庭』包括任何行使國家司法權的審裁庭或機構，而『法律程序』須據此解釋……」\n75.\n正如英國上訴法院法官Robert Walker在\nGeneral Medical Council v BBC\n[1998] 1 WLR 1573\n案中指出：\n「該定義驟眼看來只為法定用途而適用，但上訴法院民事庭庭長Donaldson of Lymington勳爵在\nP v Liverpool Daily Post and Echo Newspapers Plc\n[1991]\n2 AC 370\n案第380頁確認，該定義具有更廣泛的含意，而且『旨在反映就普通法下就藐視法庭的法庭審判權而言何謂「法庭」這個普通法概念。』事實上，『國家司法權』一詞清楚反映出上議院在\nAttorney-General v British Broadcasting Corporation\n[1981] AC 303\n案所用的語言。上議院一眾法官在該案裁定，一個為估值目的而設立的地方估值法庭並非法院，因此就\n《最高法院規則》\n第52號命令\n第1條\n而言並非一個下級法庭。」（彙編第1578頁）\n76.\n因此，在藐視法庭法律的範疇內，普通法採納了「法庭」為「行使國家司法權」的機構這個概念。事實顯示，這也是《基本法》所採納的概念。\n(ii)\n當只有「法庭」才可行使司法權\n77.\n另一個使「法庭」的概念成為爭議點的情況，涉及某審裁機構的審判權受到質疑，理由為該機構執行的職能涉及行使司法權，但它並非一個恰當地組成的「法庭」，因此不能合法地行使該權力。\n78.\n舉例說，\nShell Company of Australia Ltd v Federal Commissioner of Taxation\n[1931] AC 275\n案涉及的問題是，為覆核澳洲稅務局局長的決定而根據當地稅務法例設立的覆核委員會，是否在行使澳洲憲法\n第71條\n所指的英聯邦司法權。有關納稅人爭辯說，如果該委員會確是行使該司法權，則由於委員會成員的任命條款欠缺法官向來享有的任期保障，所以該委員會並非一個恰當地組成的「法庭」。該項質疑未能成功，原因是覆核委員會被裁定並不是在行使司法權，而只是在作出行政作爲而已。\n79.\n在我們本身的司法管轄區，依據類似理由而提出的質疑，在\n黎鴻偉\n（譯音）\n（Lai Hung Wai）\n對保安局局長\n（未載入法律彙編，高院憲法及行政訴訟2001年第1596號，主審法官：原訟法庭法官夏正民，判決日期：2002年9月9日）案中獲得勝訴；另參閲\n丘廣文\n（譯音）\n（Yau Kwong Man）及黎鴻偉\n對保安局局長\n（上訴法庭民事上訴2002年第377號，判決日期：2003年7月2日）案。被裁定謀殺罪成立的年輕罪犯，過往須被判以不確定刑期的監禁刑罰。其後政府通過法例（\n《刑事訴訟程序條例》\n（\n第221章\n）\n第67C條\n）修改該項罰則，致使可訂定最低刑期。該條文規定此項任務將由行政長官根據終審法院首席法官的建議履行。針對該項法例是否合憲的質疑獲判勝訴，理據為監禁期的訂定涉及行使司法權，而司法權須根據《基本法》\n第80條\n的規定，由法院行使，而不是由行政長官行使。結果，\n第67C條\n被進一步修訂，改爲交由法庭執行上述職能。\n80.\n在這個範疇出現的爭議點，亦顯然有別於在紀律委員會是否屬\n第35條\n所指的「法庭」的範疇出現的爭議點。在這類案件中，如果有關職能涉及行使司法權，則無疑只有法院才有資格行使。爭論乃在於有關職能的性質以及執行該項職能的機關事實上是否屬法院。\n81.\n這些個案亦凸顯出把紀律委員會等審裁機構裁定為構成《基本法》所指的「法院」或「法庭」時會出現的問題。若然如此裁定，則按照邏輯，有人繼而可能認爲審裁機構的組成可受到質疑，理由是該等機構的成員並非法官或其他司法人員。這當然會是荒謬的。\n(iii)\n就絕對特權而言的「法庭」\n82.\nRoyal Aquarium and Summer and Winter Garden Society Ltd v Parkinson\n[1892]\n1 QB 431\n案也許可作為最後的例子。就符合資格為「法庭」而言，該案採納了更廣泛的基礎。案中倫敦郡議會為根據某項法規審批音樂和跳舞牌照而舉行會議，而涉案問題是：就關於議會成員在會議進行期間作出誹謗性陳述而授予絕對特權而言，該會議是否屬「法庭」。英國上訴法院民事庭庭長Esher勳爵裁定，有關豁免不但涵蓋法院，而且涵蓋具有「類似特性」的審裁機構：\n「沒錯的是，對於在法院席前於程序進行期間作出的陳述，不論是由法官或大律師或證人作出，陳述者均獲絕對豁免負上被起訴的法律責任。該項規則乃建基於公共政策。它適用於所有種類的法院；但有關原則已被進一步伸展；看來只要研訊是獲授權，且是在具有類似特性的審裁機構席前進行，則即使並非在法院席前進行，此項豁免亦適用。」（彙編第442頁）\n83.\n法院並無說明按照何等準則來判斷是否符合資格獲納入這個更廣闊的類別。不過，即使按這個更寬廣的驗證標準，顯然不是「法庭」的倫敦郡議會，仍不合資格獲豁免。這意味着，就針對誹謗訴訟的絕對特權而言可被視為「法庭」的機構，就其他方面（例如就藐視法）而言不一定亦會被視為「法庭」。\nN. 上訴法庭所辨識的指標\n84.\n張法官和芮安牟法官均相當重視以「作出審判行為」作為決定審裁機構是否「法庭」的指標之一。但正如上文論及，真正的問題是憲法詮釋的問題。不過，即使在有需要搜尋符合資格的特性的情況下，「作出審判行為」概念所能提供的指引看來仍十分有限。\n(a) 舉例說，在上文曾經提述的\nRoyal Aquarium and Summer and Winter Garden Society Ltd v Parkinson\n案中，上訴法院拒絕接納指「倫敦郡議會須作出審判行為，故屬於『法庭』，因此絕對特權適用於倫敦郡議會所進行的發牌程序」的論據。正如上訴法院法官Lopes解釋，某機構作出審判行為這個事實，並不足以使它成爲「法庭」：\n「『審判』一詞有兩個涵義。它可指履行可由法官或司法人員在法庭行使的職責，也可指不必在法庭執行、但必須運用審判的頭腦 — 即是說，就考慮中的事宜而言，一個可決定何謂公平和公正的頭腦 — 來執行的行政職責。」（[1892]\n1 QB 431\n第452頁）\n(b) 上訴法院法官Fry指出，運用「作出審判行為」準則來界定就豁免而言什麽屬「法庭」，會網羅太多審裁機構。他順帶提及全科醫務委員會：\n「它將適用於評核委員會、監護人委員會、四所大律師學院（當考慮其中一名成員的行爲時）、全科醫務委員會（當考慮各項會影響某醫務人員的地位的問題時），以及所有仲裁員。是否有必要以公共政策為理由而把豁免原則延伸至如此大的範圍？本席認為沒有必要。」（彙編第447頁）\n(c) 上議院一眾法官在上文曾經提述的\nAttorney-General v BBC\n案中重申上述一點。正如Dilhorne子爵（在提述一所地方估值法庭時）所言：\n「它要作出審判行為，但那不能使它成爲法庭。正如上訴法院法官Fry在\nRoyal Aquarium and Summer and Winter Garden Society Ltd v Parkinson\n[1892]\n1 QB 431\n案中指出，它要作出審判行為這個事實，意味着它的程序必須『秉持法院程序的特徵 — 即公平和不偏不倚 — 來進行，這些都是合乎法官職份的特徵』，而儘管它是依法設立，這也不意味着它是一個法庭和屬於國家司法體制的一部分。」（\n[1981] AC 303\n第340頁）（另參閲Edmund-Davies勳爵在第351頁和Scarman勳爵在第360頁的判詞）\n85.\n上訴法庭亦強調醫務委員會、律師紀律審裁組和紀律委員會所作出的制裁的嚴重性，作為該三宗案件中的指標之一。很可惜，尤其是在\n葉醫生\n案中，上訴法庭未獲與訟各方向其引述\nGeneral Medical Council v BBC\n案（前述）。該案涉及的問題是藐視法是否適用於英國全科醫務委員會轄下的專業行爲委員會，該委員會在多方面 — 包括其可施加的制裁的嚴厲程度 — 與香港醫務委員會極爲相似。然而，該特點並不能使專業行爲委員會獲納入受藐視法保護的法院類別。上訴法院法官Robert Walker在宣讀上訴法院判決時表示：\n「[大律師]正確地陳詞指，全科醫務委員會轄下的專業行爲委員會，要以正式和審判的方式審理十分嚴重的爭議點，該等爭議點不但具有公衆重要性，而且可能對一名被控的執業醫生的聲譽和職業帶來最為嚴重的影響。Henderson先生正確地指出，專業行爲委員會所行使的是一種審判權。但我等認爲，它所行使的並不是國家的審判權力。……專業行爲委員會是一個特別由法規成立的專業團體轄下的法定委員會。它所履行的職責，可識別為一項為公衆利益而履行的審判職責。它按照詳細的程序規則行事，該等程序規則亦與法院所依循的極爲相似。然而，它並非國家司法體制的一部分。反而，它所行使的（儘管經法例批准）是醫學專業的自我監管權力，所履行的是業界監察和維持專業行爲水平的責任。」（\n[1998] 1 WLR 1573\n第1580頁）\n86.\n上訴法庭稍有依賴審裁機構的法定基礎以作為符合資格的準則。不過，儘管一個完全源自私人合約關係的、純粹内部的審裁機構的確極不可能被視爲「一個法庭」，但即使審裁機構由法規訂立或是法定機制下的組成部分，這也顯然不足以使該機構就任何所需目的而言有資格成為「一個法庭」。\n87.\n代表答辯人的Griffiths先生提出，本院基本上應採納上述上訴法庭判決所採取的處理方法。事實上，他試圖把網羅的範圍擴大，認為任何執行審判職責而非行政職責的審裁機構均應被裁定為受\n第35條\n涵蓋。基於上述理由，本席拒絕接納該項陳詞。\nO.\n關於\n第35條\n及紀律委員會的結論\n88.\n根據在顧及《基本法》整體下所作的詮釋，\n第35條\n只適用於法院，即行使《基本法》所賦予香港特區的獨立審判權的法院或法庭。紀律委員會並非法院，因此\n第35條\n對它不適用。\n89.\n律師紀律審裁組及醫務委員會亦不是法院。因此，在上訴法庭於\n葉紀蘆醫生對香港醫務委員會（第二號）\n[2003] 3 HKC 579\n案，及\n某律師對香港律師會\n（上訴法庭民事上訴2002年第302號；主審法官：副庭長胡國興、上訴法庭法官張澤祐及原訟法庭法官貝偉和；判決日期：2004年2月18日）案的判決中作出相反裁決的範圍内，該等裁決乃屬錯誤，不應依循。\nP.\n普通法下「程序公平」原則的適用範圍\n90.\n由於有必要審視上訴法庭就\n第35條\n這項重要的憲法議題而發展出來的案例法，因此本席在上文用了較長篇幅處理關乎該議題的辯據。\n91.\n不過，正如與訟各方正確地接納，普通法下的「程序公平」原則提供了適當的框架，以處理各方之間的爭議點。一如芮安牟法官指出，「查究一項法庭程序有否侵犯\n第35條\n下的權利，並不在僅僅識別某審裁機構為『法庭』之後便完結。正如張法官強調，仍要處理相稱性的問題。」（§113）因此，即使假設答辯人成功確立紀律委員會就\n第35條\n而言屬於法庭，他們將仍須處理在特定情況下限制法律代表或屬相稱的問題 — 這也相等於按照普通法而進行的查究。法律代表並非例必是法院的特性。舉例說，處理小額錢債或僱傭事宜的審裁處，經常爲了完全合法的政策理由而摒棄律師代表（且通常同時規定，凡爲維護司法公正而有需要時，可向更正式的法庭移交程序和提出上訴）。\n92.\n再者，本案的情況並不涉及答辯人在法律代表方面受到禁制。相反，正如在上文F節臚列的《紀律程序》條文顯示，出席的人士可在聆訊之前和進行期間，尋求法律協助和意見。由於程序主要以書面陳詞的方式進行（《紀律程序》第2.5條），有關人士的代表律師便可以並預期會替他們草擬陳詞。在聆訊的任何階段，他們的代表律師都可以陪同並可和他們商議（第5.1條）。律師亦可應紀律委員會的要求，澄清或闡述其當事人所作的任何回答（第6.3條）。在作最後陳詞之前，當事人亦可和律師商議，律師亦無疑會擬備所要提出的陳詞（第6.3條）。就此而言，不可忽略這一點：許多相關人權公約的簽署國的相關規則都規定，有關各方無權訊問證人。\n93.\n因此，本案的爭議點涉及在聆訊中應予准許的法律代表的確切形式和程度。這個問題的答案必定取決於何謂公平和相稱，而這要運用普通法的處理方式來決定。因此，本案有別於\n葉醫生\n案。在該案，葉醫生提出的押後聆訊要求一旦被拒絕，他在聆訊中便完全沒有法律代表協助。本案與\n律師會\n案亦頗為不同。在該案，法庭所關注的是，在涉案律師實際上曾委聘大律師代表出席聆訊的情況下，彌償訟費對訴諸審裁組的權利看來有何影響（§3）。\n94.\n本席亦宜在這個階段處理《人權法案》\n第10條\n。本席認爲，既然要確定普通法下的公平原則的適用範圍，便無必要同時查究\n第10條\n是否適用。\n第10條\n對於紀律程序的適用性和範圍，並非毫無問題（例如紀律程序可能是亦可能不是「訴訟」的問題）。但即使假設\n第10條\n適用，訴訟各方均同意該條文對於普通法下的「程序公平」規則並沒有起補充作用。因此，對於\n第10條\n，本席不打算再多言。\nQ. 法律代表和普通法下的公平原則\n95.\nGriffiths先生以英國上訴法院民事庭庭長Denning勳爵在\nPett v Greyhound Racing Association Ltd\n[1969]\n1 QB 125\n案中發表的意見作為陳詞依據。Denning勳爵在強調法律代表對非法律專業人士的價值和重要性後，如此說：\n「……一旦某人的聲譽或生計遭到威脅，他不單有權自己發言，還有權透過大律師或律師發言。」（彙編第132頁）\n96.\n在該基礎上，Griffiths先生表示在本案的情況下，答辯人享有當然權利獲得法律代表。\n97.\n本席不能接納該項陳詞。有關案例典據未有按英國上訴法院民事庭庭長Denning勳爵所建議的思路發展。事實上，正如Webster法官在\nR v Sec of State for the Home Department ex p Tarrant\n[1985] QB 251\n案第273至274頁指出，上訴法院在\nPett\n案所處理的，是針對一項臨時強制令而提出的非正審上訴，以及「只是指有關訓練員享有當然權利獲得法律代表的說法是否可予爭辯的問題……。」Webster法官指出，在實質聆訊中，Lyell法官裁定（參閲\nPett v Greyhound Racing Association Ltd (No 2)\n[1970]\n1 QB 46\n案第63至66頁），被告人協會拒絕讓原告人在研訊中有法律代表，並無違反自然公正的規則。Lyell法官認爲，相比\nPett (No 1)\n案中的法官意見，樞密院在\nUniversity of Ceylon v Fernando\n[1960] 1 WLR 223\n案的判決更爲可取。\n98.\n更近期的案例典據清楚確立，當事人並無絕對權利由大律師向審裁機構陳詞或查問證人，而是否給予任何該種權利須取決於是否有需要訂立該等程序以達致公平。\n99.\n舉例說，在\nR v Board of Visitors of HM Prison, the Maze, ex p Hone\n[1988] AC 379\n案，上議院所審視的案件，涉及被控違反監獄紀律罪行的囚犯（該等罪行也構成刑事罪行）。有關案件轉交監獄訪客委員會處理，而委員會拒絕讓席前的囚犯獲得法律代表。囚犯稱他們享有當然權利在聆訊中獲得法律代表，但該指稱不獲接納。Goff of Chieveley勳爵表示（其餘上議院法官表示同意）：\n「……雖然自然公義規則可要求[囚犯]在訪客委員會席前須有法律代表，但Hill先生陳詞指，在每宗個案中，他們都應把它視爲當然權利而容許法律代表，而本席看不到有任何基礎以支持該指稱。一切必須取決於每宗個案本身的情況。就正如Webster法官在\nReg v Secretary of State for the Home Department, Ex parte Tarrant\n[1985] QB 251\n案中所仔細列出的情況所充分顯示，有關情況便是訪客委員會所應考慮的事宜。雖然該紀律控罪所關乎的事宜，在法律上構成刑事罪，但要設想出自然公義規則並不要求[囚犯]須有法律代表的情況並不困難，就正如大有可能在一宗簡單襲擊案中發生一樣，案中不會出現法律問題，而被控的囚犯是有能力陳述他本身的案。若然作出相反的裁決，便會令許多個案出現完全不必要的延誤，對所有有關的人士（包括被控的囚犯）造成損害，並且會導致完全不必要地浪費時間和金錢，違反公衆利益。」（彙編第392頁）\n100.\n正如大法官所說，普通法下的情況是，該等審裁機構具有酌情權，因應公平的需要而決定是否准許有法律代表：\n「可幸的是，在英國法中，有一種酌情權可供我們使用，在有需要權衡不同因素的作用時，法庭會經常訴諸酌情權；已確立的是，在行使酌情權並在顧及各種各樣的因素 — 包括歐洲法院所提及的因素 — 之後，紀律審裁機構要決定是否爲了自然公義而必須讓一名在它席前的人士有法律代表。」（彙編第394頁）\n101.\nGoff勳爵引述\nEx p Tarrant\n案（上引第285至286頁）所臚列的事宜，包括（為使論點更具概括性而作出修改）：指控和潛在懲罰的嚴重程度；是否相當可能出現法律論點；個別人士陳述本身的案的能力；程序上的困難；以合理速度作出裁決的需要；以及在各名有關個人之間達到公平的需要。在香港，高等法院法官梅賢玉在\nR v Hong Kong Polytechnic, ex p Jenny Chua Yee-yen\n(1992) 2 HKPLR 34\n案中曾採納這個處理方法。正如這些判決強調，要盡列所有因素，顯然是不可能的。普通法下的公平原則，在施行上相當有彈性，要求審裁機構合理地回應每宗個案所出現對公平的訴求，平衡任何對立的利益，以及因而考慮應當對法律代表一事施加（如有需要的話）哪些相稱的限制。\n102.\n御用大律師David Pannick先生（連同資深大律師莊施格先生代表港交所出席本院聆訊）清楚表明，他完全接納紀律委員會有義務公平地行事，而考慮到公平原則，該委員會大有可能要准許證人（或部分證人）接受大律師盤問或准許由大律師陳詞。David Pannick先生所提出的基本反對理由是涉案司法覆核程序在兩個重要方面過早提出。該辯據是本宗上訴的中心所在，本席稍後將予以處理。本席現首先處理上訴法庭及答辯人的處理方法。\nR.\n上訴法庭及答辯人對普通法下的公平原則的處理方法\n103.\n答辯人要求本院裁斷，他們的以下論調於現時已獲證實：除非他們的律師獲給予無限制的權利向紀律委員會陳詞及訊問和盤問證人，否則普通法下的公平原則將必然遭到違反。上訴法庭採納了這個處理方法，裁定上述論調成立。\n104.\n上訴法庭法官張澤祐認爲，紀律委員會准許律師在聆訊中向答辯人提供意見、但不准許律師擔任答辯人的代訟人，這個程序會造成律師與委託人來來回回地溝通和商討，過程既累贅且不能令人滿意，「根本行不通」（§43）。張法官列出梅賢玉法官在上述\nHong Kong Polytechnic\n案中所辨識的因素，並且看來裁定該等因素支持「不公平」的裁斷。然而，他沒有對該種不公平進行任何具體分析。\n105.\n芮安牟法官首先基於英國上訴法院民事庭庭長Denning勳爵在\nPett (No 1)\n案所發表的意見，認爲《紀律程序》所載的限制缺乏理由支持。他指出Denning勳爵的意見曾被引用於\nJoplin v Chief Constable of the City of Vancouver\n(1982) 2 CCC (3d) 396案（該案判決隨後亦獲不列顛哥倫比亞省上訴法院確認：參閱(1985) 20 DLR (4\nth\n) 314），案中警隊紀律規例中一項摒除法律代表的條文被裁定為越權。正如本席在上文所述，英國和香港的案例典據，並非沿着「每當某人可能面對嚴重的紀律後果時，該人便有絕對權利獲得全面法律代表」這個思路發展。不管怎樣，我們或可注意，\nJoplin\n案所關注的規例是試圖全盤摒除法律代表，而在大部分的情況中，該種摒除相當可能違反公平原則。但正如上文所述，本案的情況並非如此。本案的辯論乃關乎在聆訊中所應准許的法律代表的具體形式。\n106.\n在本案中，芮安牟法官顯然重視公開譴責所可能帶來的嚴重後果，以及身為非法律專業人士的有關董事相當可能會感到在陳述其案方面處於不利的地位。\n107.\nGriffiths先生在陳詞中列舉本案的特點，並辯稱該些特點意味着在缺乏全面法律代表的情況下，聆訊不可避免會出現不公平。本席稍後將更全面地考慮該等特點。\nS.\n港交所對普通法下的公平原則的處理方法\n108.\n正如本席曾在上文表示，Pannick先生接納紀律委員會有義務遵守普通法下的公平原則。視乎可能出現的情況，他接納如果不准許大律師在聆訊中訊問證人或作出陳詞，便可能導致不公平。同樣，視乎情況，限制由大律師出任代表可能不涉及違反有關原則。\n109.\n因此，與訟雙方所認同的是，如何能達致公平是要視乎有關情況而定。這一點顯然是正確的。反映於《上市規則》和《紀律程序》的港交所政策，是（至少在初審階段）限制律師在聆訊中的作用。該政策乃建基於下列信念：在大部分個案中，有限度的法律代表已足夠；一個不拘形式、具備專家知識、非法律專業且對證券交易方式有深刻認識的審裁機構，最能有效和迅速地處理紀律方面的爭議點；維持各界對市場的信心乃符合公衆利益，而公衆利益要求對懷疑違規事件迅速作出調查和處理；以及在程序上「過度利用律師服務」會防礙體現上述大部分目標、大大令有關程序變得冗長和複雜，以及導致難以游說合資格人士接受無報酬的紀律委員會的委任。這些關注顯然合乎情理，但只有在妥為顧及程序上公平的需要以及確保任何加諸於程序的限制相稱的情況下，方能尋求達到上述目標。\n110.\n對於答辯人的立場，Pannick先生從兩個方面提出反對。首先，他辯稱，以置於紀律委員會席前的證據和其他資料的狀況來説，對於證人是否必須接受大律師訊問以期達致公平的問題，在現階段不可能得出一個看法。他陳詞說，主席絕對有理由決定把該問題留待日後處理。其次，Pannick先生辯稱，按照司法覆核法律程序的總則，答辯人藉司法覆核尋求法庭作出干預之前，必須盡量利用《上市規則》本身所提供的補救方法。若然准許在如此早的階段提起司法覆核程序，將有違相關法律政策。\n111.\n這些反對理由既有關連，同時又是獨立的。第一項理由所涉及的，基本上是一個實際問題。由於就公平原則的施行而言，一切必須取決於個別案件的情況，因此，只有在知悉該等情況下，才可評估何等程序才符合公平的要求。\n112.\n英國上議院在\nR (Roberts) v Parole Board\n[2005] 3 WLR 152\n案中採納了這個處理方法。該案關乎一名被判終身監禁的囚犯，為尋求釋放特許而將要在假釋許可委員會席前出席。將會置於該委員會席前的資料顯示，該名囚犯涉及毒品買賣和違犯監獄紀律。該委員會認為，若向該名囚犯揭露有關敏感資料，提供資料的人將面對危險，因此決定改為向一名為照顧該名囚犯的利益而委任的特別代訟人出示該等資料。該名囚犯提起司法覆核法律程序，理由是上述決定侵犯他根據《歐洲人權公約》\n第5(4)條\n所享有的權利。上議院裁定，該項質疑過早提出，並且裁定不可能預先斷定建議中的程序將必然抵觸\n第5(4)條\n。\n(a) Bingham勳爵在辨識多個不會引致抵觸情況的可能結果時這樣說：\n「……上訴人要求法院在現階段裁定，若建議中的程序獲採納，將必然抵觸\n第5(4)條\n。本席拒絕作出這種裁決。歐洲法院的慣常做法，是從整體上考慮有關程序，包括考慮審理上訴的法院所作的判決：\nEdwards v United Kingdom\n15 EHRR 417\n案第34段。因此，它的判決幾乎必然是追溯性的、是在有證據證明實際上發生了什麽事之時才作出的。這反映出歐洲法院對某特定案件的事實特別敏感。除非某項關於有否抵觸人權條文規定的爭議點是純粹取決於法例詮釋，否則本席認爲，本院應同樣地拒絕在不知悉實際發生了什麽事情的情況下作出裁決。本席認為這是重要的，因爲依本席看，即使聘用了一名特別委任的代訟人，仍可出現一些不涉及違反\n第5(4)條\n的結果。舉例說，委員會在聽取經特別委任代訟人驗證的敏感資料後，可能完全拒絕接納該等資料。又或委員會在聽取經該種方式驗證的資料後，可能拒絕繼續進行覆核，除非有關敏感資料（或至少其實質内容）最低限度向上訴人的法律代表披露。……又或在該名特別委任代訟人的協助下，委員會可能想出一種方法，使敏感資料可在不披露姓名、經編輯或經撮述的情況下向上訴人或其法律代表披露。又或委員會可以按程序上公平的方式，完全無須依賴該等敏感資料而作出決定。假如最終確實出現任何上述結果，則本席認爲並無涉及抵觸\n第5(4)條\n的情況。」（§19）\n(b) 首席法官伍爾夫勳爵提出以下論點：\n「就\n第5(4)條\n而言，正如Bingham勳爵在其判詞中指出（第19段），關鍵在於在作出決定之前有需要從整體上檢視有關事實，包括任何上訴過程。在本土法的範疇，情形也是一樣。在實際聆訊之前預先作出判定，將令委員會嚴格受制，使它在執行其職責方面遇上重大困難。[法庭]要全面地考慮有關情況，這包括以事後的認識從整體上檢視有關程序和顧及委員會的職責。」（§77）\n「一旦在某個案中，委員會不可能一方面使用未向有關囚犯披露的資料、但同時要保障囚犯不被剝奪接受公正審問的基本權利，則該囚犯的權利便要放在優先的地位。但本席認爲，在本案我們並未到達這個階段，使我們能夠說上述情況已出現。在未有至少考慮Maurice Kay法官的不公開以及公開的判決之前，我們肯定不能說上述情況已經出現。上訴人選擇提出本席在判詞開端辨識的爭議點。他聲稱無論如何都不可以在聆訊中聘用特別委任代訟人。這種說法未免流於極端。」（§78）\n(c) Rodger勳爵亦說：\n「就依據《歐洲公約》而提出的辯據而言，大體上基於Bingham勳爵所述的理由，本席認爲本院不能預先判定，涉及特別委任代訟人的全面聆訊是否符合\n第5(4)條\n的規定。就\n第5(4)條\n而言，同樣的對立利益必須予以考慮，但各項因素應獲給予何等分量，則大有可能完全（或至少部分）取決於在聆訊期間發生何事。」（§112）\n113.\n因此，首項辯據在法律上是得到充分支持的。至於它是否適用於本案的案情，本席稍後將加以審視。\n114.\nPannick先生的第二項辯據中提述的原則，亦廣為人知，答辯人原則上也不表爭議。在上訴法庭和本院席前，與訟各方均同意以\n香港聯合交易所有限公司對Onshine Securities Ltd\n[1994] 1 HKC 319\n案所述明的原則為根據，就該論點進行爭辯。在該案，紀律委員會裁定一所股票經紀行曾經違反若干規則。該經紀行沒有按規則規定向紀律上訴委員會提出上訴，反而提起司法覆核法律程序，投訴指上述裁斷有欠公平。上訴法庭進行審訊時，假設有關投訴可證明成立，以致有足夠理由推翻紀律委員會的裁決。不過，由於有關規則本身已訂明向紀律上訴委員會上訴的權利，因此上訴法庭拒絕作出干預，「除非與直至Onshine已用盡該項補救方法而可見的是它仍未獲公平對待。」（出處同上）\n115.\n副庭長鮑偉華（本院非常任法官鮑偉華爵士當時職銜）頒發上訴法庭判案書時注意到，上訴人只能宣稱：「並非紀律上訴委員會\n無可能\n糾正上訴人所蒙受的委屈；只是存在着這\n可能\n不出現的危險。」他作出結論說：「我等認爲，這並不足夠。」（第329頁）鮑偉華副庭長在一段重要的總結中指出（該段總結為本上訴的雙方所接納），只有在特殊或非常例外的情況下，法庭才會容許偏離這項規則，他並且提供一些例子以資解説：\n「要界定『特殊情況』，既不可取亦不可能。但如果可供利用的上訴足以處理原本程序中被指的不妥之處，這將是不支持批予許可的重大因素。然而，這可不是決定性的。舉例說，申請人或能證明，由於上訴程序因延誤或某些其他外在事宜而有缺陷，因此法庭有需要即時作出干預。同樣，如果法庭即時作出干預會導致減除訴訟，這也會是一個重要 — 甚或具決定性 — 的考慮因素。我等所想到的情況是有關審裁機構沒有管轄權受理有關程序，或有關程序建基於明顯和根本的法律錯誤。在該等情況下，不可能再次展開相同的程序，而為了達致公正和合宜所需，有關決定或須即時予以撤銷。」（彙編第329頁）\n116.\n鮑偉華副庭長以\nCalvin v Carr\n[1980] AC 574\n及\nR v Chief Constable of the Merseyside Police, ex p Calveley\n[1986] QB 424\n兩案為依據，如此説明有關原則：\n「就一個像港交所的内部團體而言，假如上訴程序或可或不可確保因下級審裁體的決定而感到受屈的一方得到公正，則一般來説，不應要求法庭預測審理上訴的審裁體的裁決。在沒有例外情況以支持法庭即時作出干預的情況下，應指示受屈的一方先等待上訴審裁體的結果。如該審裁體可以並且撤銷下級審裁體的決定，有關事宜便將隨之告終。如該上訴審裁體維持下級審裁體的決定，受屈的一方便可申請司法覆核；但只有在從有關程序的整體（包括原審和上訴程序）可見受屈的一方仍然未獲公平對待的情況下，該方的申請才會成功。」（彙編第330頁）\n117.\n要注意，要求盡量利用内部補救方法的規則雖然一般地適用，但同時帶有某程度的彈性，以應付一個很可能極爲罕見的情況，即情況清楚顯示，為避免出現實質不公，法庭必須作出例外處理。Griffiths先生辯稱（而夏正民法官和上訴法庭均接納該辯稱），答辯人已證明本案存有例外情況，以支持他們提早提起本宗司法覆核。正如上文所述，他亦辯稱，有關法律程序並非過早提起，而法院現時處於絕佳的位置，可就必然出現不公平情況作出裁決。Pannick先生則提出相反的辯據。因此，本席必須審視有關事實，以決定何種說法正確。\nT.\n就事實而言的程序上公平和盡量利用其他補救方法\n(i)\n主席事實上作出什麽指示？\n118.\n首先必須解決Griffiths先生所提出的、在上文D節提述的爭論點。受爭議的程序指示已在該節詳述。主席發出的指示，包括以下規定：\n6. 法律顧問不獲准向[紀律]委員會陳詞（不論就口述陳詞還是在事實或其他方面訊問證人而言）。\n119.\n本席曾在上文指出，夏正民法官認爲上述指示的意思是主席不曾就會否容許律師盤問證人的問題作決定，而經上訴法庭要求澄清後，主席一方致函回覆，證實那是主席的立場。上訴法庭（在§34和§176）予以接納，並以該問題仍有待解答為基礎來處理有關上訴。縱然背景如此，Griffiths先生仍然陳詞說，本院處理本宗上訴的基礎，應以上述指示§6為唯一相關的受爭議指示，並應理解該指示為確切地不容許由代表答辯人的律師訊問證人和作出陳詞。\n120.\n本席謹認爲該觀點站不住腳，Griffiths先生亦沒有就該觀點提出任何法律依據。誠然，表面看來，《紀律程序》其中數項條文（例如第5.1和6.3條）所規定的一般程序，均預期律師在聆訊中發揮有限和純粹顧問的作用。然而，清楚的是，上市委員會（不論是否以紀律委員會的身分舉行會議）可以修改該等規則。舉例說，《上市規則》第2.04條的相關部分説明：\n「謹此重申，本交易所的上市規則並非涵蓋一切情況，本交易所於其認爲適當時可增訂附加規定，或規定上市申請須符合若干特別條件。相反，本交易所因情況不同而需就個別個案作出決定時，可按個別情況豁免、更改或免除遵守本交易所的上市規則的規定（以因應不同個案的情況）。……」\n這種彈性顯然並非只屬意適用於《上市規則》，而是亦屬意適用於根據《上市規則》訂立的《紀律程序》。\n121.\n再者，《紀律程序》本身（在第6.1和6.2條）強調在審裁組進行的程序不拘形式，亦不受證據規則限制。不論紀律委員會是透過主席行事，還是以委員會的身分開會，都必定有權控制本身的非正式程序，雖然一定受到公平行事的基本義務所規限。正是這種形式上的自由及必須符合公平行事的要求，使該委員會具有隱含酌情權，既可修改先前訂立的指示，亦可因應情況的需要而發出新指示。\n122.\n在\nR (D) v Secretary of State for the Home Department\n[2006] EWCA Civ 143\n案中，法院採納了類似的處理方法。雖然有關事宜的背景頗爲不同（該案涉及内政大臣為調查在監獄內發生的事件而召開的研訊的進行程序），英國上訴法院民事庭庭長Anthony Clarke爵士就主席的職責而發表的評論相當有用。大法官在頒發上訴法院判案書時表示注意到適用的法令並無給予在研訊中有代表的各方盤問證人的權利，因此這是由主席按照公平原則而決定的事宜。結果，他裁定：\n「是否准許和在何等範圍内准許有利害關係的各方或其代表向證人提問，須由有關研訊的主席決定。\n我等看不到爲何以這種方式進行的研訊將抵觸《公約》\n第2條\n。主席的基本義務是要公平地行事。在履行該義務時，主席可因應個別個案的情況而容許或不容許他人查問證人。容許他人查問證人，在某些情況下可能適當，在其他情況下則可能不然。」（§40至§41）\n本席認爲，紀律委員會不論透過主席行事還是以整體行事，在程序上都可享有類似的自由。\n123.\nGriffiths先生的陳詞令人感到意外，因爲答辯人透過其代表律師於2005年5月27日致送主席的函件，顯然已接納夏正民法官對有關指示的理解。該函件提述夏正民法官的判詞中的相關段落，並且「因上述段落」而要求主席發出進一步指示，准許由法律代表訊問證人。此舉顯然假設存在着修改早前指示的權力。事實顯示，答辯人沒有跟進該函件，因為不久之後，他們便決定提出司法覆核申請，並獲頒令擱置相關紀律程序。\n(ii)\n在現階段是否有可能評估聆訊是否公平？\n124.\n上文C節已描述上市科為向答辯人提出指控而採取的步驟。隨之而來的便是上文D節所描述的有關指示的發出。答辯人最初的書面陳詞顯示，對於取自證監會的陳述書可否獲接納為證據，他們提出法律上的質疑，而對於作供詞人的可靠性（尤其是考慮到錄取該等陳述書的方式的被指不足之處），他們提出概括性的質疑。上市科發出知會，指它（於2002年12月）打算傳召四名指名證人，他們分別是兩名高盛的分析員、一名摩根大通的分析員和一名星展唯高達（香港）有限公司的分析員。上市科便是在該知會中表達它的意見，認爲假如要傳召這些證人，則由大律師訊問和盤問他們將屬適當，雖然這是由紀律委員會決定的事宜。\n125.\n上市科於2003年7月2日提交其「事實爭議點列表」。事實上，那是在有關指示發出之後，在紀律程序中所採取的首個也是最後一個程序上的步驟。其後，紀律程序便被擱置，以進行作為本上訴的源頭的司法覆核程序。\n126.\n上市科在列表中指出，它在該階段只能辨識出單一項事實爭議，即「[新世界]曾否預先於2001年3月15日正式發布其中期利潤數字之前，向高盛及／或摩根大通及／或唯高達披露該數字。」它在「附註」中補充說：\n「到目前爲止，有關各方的陳詞均沒有對上市科報告書第7段所作的事實宣稱，即關於[董事]未有設立足夠監控程序以防止股價敏感資料被選擇性地披露的投訴，提出任何質疑。……」\n127.\n明顯沒錯的是，該司法覆核申請是在紀律程序的極早階段提出。答辯人沒有提交他們的「事實爭議點列表」。不論是上市科還是答辯人，均沒有送達證人陳述書或摘要，以披露每名擬傳召證人所將提供的證據的實質内容。唯一存在的只是結集在上市科報告書中的大量陳述書和其他文件，以及答辯人所作的爭論性答覆。就是在這個背景下，於2005年5月4日代表主席發出的函件表示：「鄭先生的其他指示獲遵行後，委員會將處於更佳的位置，以考慮行使其酌情權……」。\n128.\n本席認爲，主席採取這個「等着看」的立場，完全屬於他的酌情權範圍之内，不會必然導致違反公平原則。他把應否由大律師訊問證人的問題留待日後決定時，並沒有排除容許大律師訊問證人的可能性。他只不過是想等到有關程序的爭議點和範圍得到更清晰的界定後才作決定。假如及直到擬傳召證人的通知已發出，而證人證據的實質内容亦已披露之後，答辯人便可申請（考慮到上市科之前所言，該申請可能獲上市科支持）由大律師處理有關事宜，並説明該申請的理據。當然，倘若將來主席或紀律委員會發出的指示抵觸公平原則，答辯人便有理由在適當的階段提起司法覆核。視乎違反該原則的性質和當時的主要情況，該個階段可能在、亦可能不在盡量利用《上市規則》所訂定的覆核和上訴程序之後出現，實際情況受到上文論及的\nOnshine\n案的原則所規限。\n129.\n本席不能接納，Griffiths先生所辨識的本案特點令本院不得不斷定，假如不在這個時候發出批准全面法律代表的指示，不公平情況必將出現。這些特點依次序為：\n(a) 制裁的嚴重程度：本席同意，在考慮公平所需時，必須顧及制裁的嚴重程度。不但就處理證人而言，而且就爭議點得到更清晰界定後的一般程序而言，那仍然是指引主席和紀律委員會的一個因素。\n(b) 存在複雜的法律論點：假設情形確是如此，而雙方已交換顯然由各自的代表律師擬備的書面論據。該等陳詞可能足以、亦可能不足以讓紀律委員會就論點作決定。如果不足以的話，且倘若為達致公平而有此需要，則當法律爭議點得到更清晰界定，以及經審閲該等書面陳詞後，紀律委員會具有酌情權容許由法律代表提出口述辯據。\n(c) 答辯人並非法律專業人士，將不能妥為陳述他們本身的案：直至爭議點妥獲界定和知悉將作供證人的證據實質内容之前，法庭無法評估情形是否如此。如事實上出現該種困難，則可能適宜准許答辯人在所需的範圍内有法律代表。\n(d) 由於代表上市科的人士，儘管不是處理法庭訴訟的律師，卻曾接受律師培訓，且具備處理紀律案件的經驗，但答辯人並非法律專業人士，因此雙方在裝備上不平等：倘若在聆訊時情形確是如此，且出現不公平情況的風險，則可能適宜准許答辯人在所需的範圍内有法律代表。\n(e) 由於有重大的事實爭議，因此有需要進行盤問：Griffiths先生指出有關報告長達750頁，涉及11名作供詞人和16份會面紀錄，而辯方可能傳召額外證人。這事實反而支持主席採取「等着看」的處理方法。上市科已表示只會傳召四名證人，而不是傳召該11名已提供16份可供取閱的陳述書的證人。當清楚知悉實際要傳召的證人所會提供的證據後，為公平起見，可能需要、亦可能不需要由大律師代表答辯人盤問全部或部分證人。對於該個懸而待決的問題，主席和紀律委員會將要加以審慎考慮。\n130.\n下級法庭認爲本案情況特殊，足以支持在如此早段提起司法覆核程序。對此本席亦不敢苟同。答辯人沒有提供任何理由以支持法庭即時作出干預。按照正確詮釋，\n第35條\n不會對紀律程序設置憲法上的障礙。主席暫不決定是否准許由大律師訊問證人，並在此基礎上進行程序，不能說是涉及任何明顯及根本的法律錯誤。簡言之，本案沒有特殊情況以支持在現時提起司法覆核。相反，考慮到爭議點未獲界定，而可能提出的證據又尚未披露，在現階段提起司法覆核並要求法庭評估紀律程序在程序上是否相當可能公平，實非明智之舉。\n結論\n131.\n據此，本席認爲，在Pannick先生所主張的兩種意義上，針對有關指示的批評均是過早提出。本席因此裁定上訴得直，將上訴法庭於2005年5月27日所作的命令作廢，並駁回各名答辯人的司法覆核申請。由於與訟各方已同意訟費須視乎本上訴的結果而定，故此本席命令答辯人支付上訴人在本院及下級法庭的訟費。\n終審法院非常任法官鮑偉華爵士：\n132.\n本席同意常任法官包致金及常任法官李義的判決。\n終審法院非常任法官伍爾夫勳爵：\n133.\n本席同意常任法官包致金及常任法官李義的判決。\n終審法院常任法官包致金：\n134.\n本院一致裁定上訴得直，將上訴法庭的命令作廢，駁回各名答辯人的司法覆核申請，並判給上訴人在本院及下級法庭的訟費。在裁定上市委員會不屬《基本法》\n第35條\n所指的法院或法庭時，我等亦裁定醫務委員會及律師紀律審裁組也不屬\n第35條\n所指的法院或法庭。在上訴法庭於\n葉紀蘆醫生對醫務委員會（第二號）\n[2003] 3 HKC 579\n案及\n某律師對律師會\n（上訴法庭民事上訴2002年第302號，2004年2月18日）案中作出相反裁決的範圍内，該兩宗上訴法庭案例予以推翻。\n（包致金）\n終審法院常任法官\n（陳兆愷）\n終審法院常任法官\n（李義）\n終審法院常任法官\n（鮑偉華爵士）\n終審法院非常任法官\n（伍爾夫勳爵）\n終審法院非常任法官\n上訴人：由齊伯禮律師行延聘御用大律師David Pannick先生及資深大律師莊施格先生代表。\n答辯人：由胡關李羅律師行延聘資深大律師John Griffiths先生、大律師Richard Zimmern先生及大律師李詠文女士代表。\n[本譯文由法庭語文組專責小組翻譯主任翻譯，並經由湛樹基律師核定。]", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2005/FACV000022Y_2005.docx", + "file_name": "FACV000022Y_2005.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkcfa/2008_HKCFA_22/case.json b/zh_cases_hkcfa/2008_HKCFA_22/case.json new file mode 100644 index 0000000..cf72c8e --- /dev/null +++ b/zh_cases_hkcfa/2008_HKCFA_22/case.json @@ -0,0 +1,26 @@ +{ + "Date": "18 Mar, 2008", + "Action No.": "FACV20/2007", + "Neutral Cit.": "[2008] HKCFA 22", + "case_title": "陳建成 對 幕交易審裁處及另一人", + "page_title": "陳建成 對 幕交易審裁處及另一人 | [2008] HKCFA 22 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "FACV20/2007", + "link": "https://www.hklii.hk/tc/appealhistory/FACV/2007/20" + } + ], + "case_url": "https://www.hklii.hk/tc/cases/hkcfa/2008/22", + "neutral_cit": "[2008] HKCFA 22", + "court_code": "HKCFA", + "content": "FACV19Y/2007 官永義 對 幕交易審裁處及另一人\n[Chinese Translation - 中譯本]\nFACV 19/2007\n香港特別行政區\n終審法院\n終院民事上訴編號：2007年第19號\n（原上訴法庭民事上訴2005年第358號）\n_________________\n上訴人\n（答辯人）\n官永義\n對\n第一答辯人\n內幕交易審裁處\n第二答辯人\n（上訴人）\n財政司司長\n_________________\nFACV 20/2007\n香港特別行政區\n終審法院\n終院民事上訴編號：2007年第20號\n（原上訴法庭民事上訴2005年第360號）\n_________________\n上訴人\n（答辯人）\n陳建成\n對\n第一答辯人\n內幕交易審裁處\n第二答辯人\n（上訴人）\n財政司司長\n_________________\n主審法官：\n終審法院首席法官李國能\n終審法院常任法官包致金\n終審法院常任法官陳兆愷\n終審法院常任法官李義\n終審法院非常任法官梅師賢爵士\n聆訊日期：2008年2月25日及26日\n判決日期：2008年3月18日\n_________________\n判案書\n_________________\n終審法院首席法官李國能：\n1.\n本席同意本院非常任法官梅師賢爵士的判詞。\n終審法院常任法官包致金：\n2.\n本席完全同意本院非常任法官梅師賢爵士的判詞。\n終審法院常任法官陳兆愷：\n3.\n本席同意本院非常任法官梅師賢爵士的判詞。\n終審法院常任法官李義：\n4.\n本席同意本院非常任法官梅師賢爵士的判詞。\n終審法院非常任法官梅師賢爵士：\n導言\n5.\n本上訴就一項由內幕交易審裁處（“審裁處”）根據《證券（內幕交易）條例》（香港法例\n第395章\n）（\n《證券條例》\n）進行的研訊提出重要而有趣的問題。\n《證券條例》\n現已廢除，並由\n《證券及期貨條例》\n（香港法例\n第571章\n）（《證期條例》）取代。涉案主要問題為：《香港人權法案》（《人權法案》）\n第10\n及\n11條\n是否適用於有關法律程序；以及如果適用的話，審裁處採用有關人士被強制對可導致入罪的問題而提供的可導致入罪的答案以及審裁處所運用的舉證標準是否符合上述條文。\n6.\n本上訴針對一項上訴法庭的判決，由財政司司長在獲得上訴法庭的許可後針對該庭（由高等法院首席法官馬道立、上訴法庭副庭長鄧國楨及原訟法庭法官石仲廉組成）的一項判決而提出。至於向上訴法庭提出的原上訴，則源自審裁處根據\n《證券條例》\n進行的研訊。上訴法庭副庭長鄧國楨在宣告上訴法庭的判決時已簡潔地陳述事件的背景，以下的事實陳述便是取自上述判決。\n7.\n2000年1月28日，永富建設（“永富”）的股價收市報0.34元，成交量50,000股；到了同年1月31日上午10時47分停牌時則報2.10元，成交量4,228,000股。\n8.\n一項於2000年2月18日發出的公告表示Pollon Group收購了永富75%股權。當永富於同日復牌後，其股價在12.4元與8元之間徘徊，收市則報10.05元，成交量14,378,000股。在Pollon Group進行上述收購交易前擁有永富75%股權的永義國際（“永義”），其股價於2000年1月31日上午10時48分停牌前上升30.91%，更於同年2月18日復牌後再升239%。\n9.\n證券及期貨事務監察委員會（“證監會”）根據\n《證券及期貨事務監察委員會條例》\n（香港法例\n第24章\n）（“《證監會條例》”）（現已廢除）\n第33條\n，就永富和永義的股票可能涉及內幕交易一事展開調查。\n10.\n答辯人官永義（“官先生”）是永富和永義的主席。\n11.\n另一答辯人陳建成（“陳先生”）是官先生認識已久的商界朋友。\n12.\n官先生和陳先生均於2001年被證監會根據《證監會條例》\n第33(4)(c)條\n要求回答問題。在調查期間，他們曾聲稱某些問題的答案可能會導致他們入罪，不過，他們須按照《證監會條例》\n第33(4)\n及\n33(6)條\n回答該等問題。上述條文規定：\n“(4) 受調查人，或調查員合理地相信或懷疑持有或控制任何紀錄或其他文件的人（這些紀錄或其他文件載有或可能載有與本條所指調查有關的資料），或調查員合理地相信或懷疑持有或控制該等資料的人，須 —\n……\n(c) 在調查員書面指定的時間及地方，出席接受查問，盡其所知，從實答覆調查員向他提出有關調查事宜的問題；及\n……\n(6) 任何人均須回答調查員根據本條向他提出的問題，但如答案可能導致他入罪，而他在作答前作此聲明，則問題和答案在檢控他的刑事訴訟中均不得被接受為檢控他的證據，但就其答案而檢控其犯偽證罪或檢控其作出第(12)款或\n《刑事罪行條例》\n（\n第200章\n）\n第36條\n所指犯法行為的案件則不在此限，而問題和答案為《證券（內幕交易）條例》（\n第395章\n）所有目的均可接受為證據。調查員在根據本條向有關的人詢問前，須將本款對問題和所給答案可否被接受為證據方面施加的限制，告知該人。\n13.\n根據\n第33條\n進行的調查結束之後，財政司司長於2003年5月26日要求審裁處研訊及裁定：\n“(a) 對於鍾奇濤、陳建成和林平穩或由他人代他們於2000年1月31日就該等公司的上市證券而進行的交易，曾否出現與之有關連或由之而生並與該等公司有關的內幕交易；\n(b) 如曾有上文(a)段所述的內幕交易，則每一名內幕交易者的身分為何；及\n(c) 由於上述內幕交易而獲得的利潤金額或得以避免的損失金額。”\n14.\n審裁處獲\n《證券條例》\n第17條\n賦權：\n“(b) ……要求任何人出席[審裁處聆訊]並作供……\n……\n(d) ……要求該人回答所有由審裁處提出或經它同意而提出的問題；\n……”\n15.\n審裁處向官先生和陳先生送達“甲”類邀請信(Salmon letters)，要求他們根據\n《證券條例》\n第17條\n出席審裁處的研訊和作供。邀請信通知他們：\n“審裁處已決定就你們的行為展開研訊，你們可能受到研訊的標的事項牽連或與該事項有關。”\n16.\n官先生和陳先生均有出席審裁處研訊並作供。審裁處把各項根據《證監會條例》\n第33(4)條\n提出的問題以及官先生和陳先生所提供的答覆接納為證據及予以考慮，當中包括他們聲稱可能會導致他們入罪的各項提問和答覆。審裁處的上述做法是否正確，乃為本上訴所牽涉的問題之一。\n17.\n《證券條例》\n授權審裁處對任何被其指出為內幕交易者的人作出以下任何或所有命令：\n“23(1)(a) 命令該人在命令所指明的期間（不超過5年）內，如無原訟法庭許可，不得擔任上市公司或其他指明公司的董事、清盤人、財產接管人或財產管理人，或以任何方式直接或間接參與上市公司或其他指明公司的管理或與該等公司管理有關；\n(b) 命令該人向政府繳付一筆款項，數額不得超過該人因進行該宗內幕交易而獲取的利潤或避免的損失；\n(c) 命令對該人處以罰款，罰款額不得超過該人因進行該宗內幕交易而獲取的利潤或避免的損失的3倍。”\n《證券條例》\n第27條\n容許審裁處命令內幕交易者繳付研訊的開支。\n18.\n審裁處（由麥明康法官（主席）、呂汝漢教授和陳建豐先生組成）在其中期報告中裁斷官先生和陳先生是內幕交易者。有關裁斷的內容如下：\n“官永義\n我們裁斷官永義在陳先生於2000年1月31日買入568,000股永富股份的交易中是內幕交易者，違反該條例\n第9(1)(a)\n及\n9(1)(c)條\n的規定。官先生亦曾慫使或促致林平穩於2000年1月31日買入320萬股永富股份，在這方面違反第9(1)(a)的規定。\n陳建成\n我們裁斷陳建成在2000年1月31日買入568,000股永富股份和100,000股永義股份的交易中是內幕交易者，違反該條例\n第9(1)(e)條\n的規定。”\n審裁處在作出裁斷時，視\nR v. Securities and Futures Commission, ex parte Lee Kwok-hung\n1\n一案為具約束力的案例。鍾禮善法官在該案中視有關法律程序為非刑事程序，並運用以“高度可能性”為依據的民事舉證標準。這項做法是否正確，乃為本上訴所涉及的另一個問題。\n19.\n上訴法庭斷定各名答辯人在內幕交易法律程序中受到《人權法案》\n第10\n及\n11條\n保障，而根據《證監會條例》\n第33(4)條\n取得的證據（各名答辯人曾聲稱在該等證據上享有免使自己入罪的特權）在上述法律程序中不得獲接納。上訴法庭又斷定各名答辯人不應被強迫根據\n《證券條例》\n第17條\n在內幕交易研訊中作供，而在研訊中須運用“在無合理疑點下證明”的舉證標準。\n20.\n上訴法庭隨後作出下列命令：\n(1) 上訴得直，推翻及撤銷審裁處針對每名答辯人作出的關於內幕交易的不利裁決；\n(2) 推翻及撤銷審裁處根據\n《證券條例》\n第23\n及\n27條\n並針對各名答辯人作出的相應命令；\n(3) 上訴人須支付各名答辯人的上訴訟費，如雙方未能就訟費達成協議，則須由法庭評定；及\n(4) 關於每名答辯人在審裁處研訊中的訟費問題，延遲至終審法院對上訴人的上訴作出裁決後才予處理，雙方可隨意恢復申請。\n向本院提出的上訴\n21.\n是次向本院提出的上訴，帶出下列的重要憲法爭議點：\n(1) 由審裁處審理的內幕交易法律程序，是否因審裁處有權(a)判處罰款或(b)作出取消資格命令而涉及《人權法案》\n第10\n及\n11條\n所指的對一項刑事控告作出判決？\n(2) 假如情況確如上述，則\n(a) 有否侵犯得享免使自己入罪的保障的權利或保持緘默的權利？\n(b) 審裁處是否須運用“在無合理疑點下證明”的刑事舉證標準？\n(3) 即使有關內幕交易法律程序並不涉及對一項刑事控告作出判決，上訴法庭應否裁定各名答辯人勝訴？\n(4) 上訴法庭是否錯誤地沒有把補救方法局限於作出一項指判處罰款的法定權力因違反《人權法案》而無效的命令？\n相\n關憲法條文\n22.\n《人權法案》\n第10條\n的有關部分規定：\n“任何人受刑事控告或因其權利義務涉訟須予判定時，應有權受獨立無私之法定管轄法庭公正公開審問。”\n23.\n《人權法案》\n第11條\n規定：\n“(1) 受刑事控告之人，未經依法確定有罪以前，應假定其無罪。\n(2) 審判被控刑事罪時，被告一律有權平等享受下列最低限度之保障 —\n……\n(g) 不得強迫被告自供或認罪。”\n24.\n上述\n第10\n及\n11條\n的條文內容，與《公民權利和政治權利國際公約》（《權利公約》）\n第14(1)、(2)及(3)(g)條\n的相應條文相同。\n25.\n《香港人權法案條例》\n（香港法例\n第383章\n）藉着制定《人權法案》而實施適用於香港的《權利公約》；因此，根據《基本法》第三十九條，《人權法案》具有憲法效力。\n上訴法庭的\n裁\n決\n26.\n上訴法庭在考慮審裁處的法律程序是否涉及對一項刑事控告作出判定的問題時，曾顧及歐洲人權法庭（“斯特拉斯堡法庭”）就《保護人權和基本自由歐洲公約》（《歐洲公約》）\n第6條\n而闡述的原則。英國的法庭在詮釋和應用《1998年人權法令》（英國）時亦引用該等原則。\n27.\n上訴法庭的做法是正確的。斯特拉斯堡法庭就《歐洲公約》下與《人權法案》的有關條文內容相同或大致相同的條文而作出的判決對香港的法庭雖然沒有約束力，但享有極具說服力的權威，本院向來亦如此視之。事實上，這項觀點是與訟雙方的共同基礎。\n28.\n不過，必須承認，斯特拉斯堡法庭的法理是取決於事實的，因此，把該法庭的判決應用於不同的事實上是相當危險的\n2\n。該法庭的判決所涉及的法例和事實與本案的亦不相近。\n29.\n《歐洲公約》\n第6(1)條\n有關部分的內容與《人權法案》\n第10條\n相若。\n第6(1)條\n規定：\n“任何人因其民事權利和義務或受刑事控告而須予判定時，應有權於合理時間內受獨立無私之法定管轄法庭公正公開審問。”\n第6(2)條\n則規定：\n“受刑事控告之人，未經依法確定有罪以前，須假定其無罪。”\n這項規定與《人權法案》\n第11(1)條\n相符。\n30.\n然而，《歐洲公約》並沒與《人權法案》\n第11(2)(g)條\n相符、保障任何人免被強迫自供或認罪的明訂條文。不過，《歐洲公約》\n第6(1)條\n下接受公正審問的權利，已獲確認為能夠保障任何人免被強迫自供。\n31.\n上訴法庭所引用的各宗關乎《歐洲公約》\n第6條\n的斯特拉斯堡法庭判例\n3\n和英國法庭判例\n4\n，確立了下列三項在決定是否有\n第6條\n所指的“刑事控告”時須予考慮的準則：\n(1) 有關罪行在國內法中的分類；\n(2) 有關罪行的性質；及\n(3) 可能作出的制裁的性質和嚴厲程度。\n這批判例確認\n第6條\n下的“刑事控告”概念有一個獨立的意思，即該概念與根據一個國家的法律把法律程序分類為刑事或非刑事的做法不同，亦無須與之相符，而且該概念所關注的是法律程序的實質而非形式。否則的話，國家便可隨意藉着把一項本質上的刑事罪行移交行政當局作決定而逃避施行\n第6條\n。\n32.\n就運用上述三項準則而言，斯特拉斯堡法庭確認有關法律程序在國內法中的分類只是起始點\n5\n，而第(2)和第(3)項因素遠較第(1)項因素重要\n6\n。英國上訴法院法官Potter 在案例\nHan v. Customs and Excise Commissioners\n7\n中以及英國上議院在案例\nR (McCann) v. Manchester Crown Court\n8\n中曾先後重申這項原則；在後者案例中，上議院法官Steyn勳爵更指出第三項因素最為重要。在本案中，上訴法庭曾擷取及引用上述兩宗案例所闡明的原則，並在其他方面參考該兩宗案例。本席稍後將再在本判案書中討論該兩宗案例。\n33.\n上訴法庭接着裁定，雖然立法機構顯然視\n《證券條例》\n下的內幕交易法律程序為民事法律程序，但\n第23(1)(c)條\n所訂立的刑罰帶懲罰及阻嚇性質而非補償性質，並且是嚴厲的。上訴法庭認為第(2)和第(3)項因素應遠較第(1)項因素重要及第(3)項因素最為重要，並考慮到上述懲罰的嚴厲程度，最後裁定有關法律程序涉及對一項刑事控告作出判決。另一方面，上訴法庭認為賦予取消資格的權力並非為了施加懲罰，而是為了保障公眾投資者，因此該項權力本身不會使有關法律程序變為刑事法律程序。\n34.\n上訴法庭在闡釋為何達致上述裁決 — 即基於懲罰的嚴厲程度，有關法律程序涉及對一項刑事控告作出判決 — 的過程中，曾表示其認為案例\nR v.\nSecurities and Futures Commission ex parte Lee Kwok-hung\n中的判決並不正確。上訴法庭認為鍾禮善法官未有充分顧及有關懲罰的重要性而只視其性質為紀律性，並過份重視立法機構把有關法律程序分類為民事程序的事實。上訴法庭不接納內幕交易法律程序屬紀律性程序的說法，並認為立法機構所作的分類並非如鍾禮善法官所認為般重要。\n第\n(1)(a)條問題 — 有關法律程序是否因判處罰款的權力而涉及一項刑事控告？\n35.\n代表上訴人的御用大律師David Pannick先生認為，上訴法庭如此重視有關的歐洲和英國案例，尤其是\nHan\n和\nMcCann\n兩案，實屬錯誤。他指出在\nHan\n一案中，英國上訴法院法官Potter表示不願意作出有關判決\n9\n、另一位法官Mance表示保留\n10\n，而第三位法官Martin Nourse爵士則持不同意見。Pannick先生辯稱本土立法機構把有關法律程序分類為民事程序這一點應更受重視。有關案例並不支持這項陳詞。根據已確立的原則，即使有關法律程序在本土法律下被分類為民事程序，這一點也只是重要而絕非具決定性，因為第二和第三項準則更為重要\n11\n。\nHan\n和\nMcCann\n兩案的判決與這項原則陳述一致。\n36.\n有關案例中有多項陳述試圖闡明《歐洲公約》\n第6(1)條\n所指的“刑事控告”概念中的元素。其中一項由Hope of Craighead勳爵在\nMcCann\n12\n一案中所作的陳述雖然針對\n第6條\n，但最能在《人權法案》\n第10\n和\n11條\n的文意中清楚解釋上述概念，並且最能在予以修改後適用於香港。Hope of Craighead勳爵說：\n“61. ‘刑事控告’一詞本身表明他們所關注的法律程序並不限於作出一項‘控告’的法律程序。問題在於有關法律程序是否可能導致施加懲罰。正如民事法庭庭長Rodger法官在案例\nS v Miller\n2001 SC 977\n第988頁，判詞第21段中指出，這一點已從\n第6(1)條\n的法文文本中清楚顯現。這項條文述明，須予判定的事宜必須是一項 ‘sur ses droits et obligations de caractère civil’爭議或 ‘accusation en matière pénale’。 ‘en matière pénale’一詞顯示有關指控預期將帶有懲罰性元素。在案例\nEngel v The Netherlands\n(No 1)\n第678頁，判詞第82段中，法官在列出第一項準則時反問自己‘根據答辯國的法制下的分類，界定所控罪行的條文究竟屬於刑事法、紀律法抑或同屬兩者’之時，似乎已考慮到上述一點。換言之，涉及僅屬紀律性的控告的法律程序，並不屬\n第6條\n的適用範圍。”\n37.\n由此可見，可能導致對不當行為施加懲罰的法律程序，乃涉及對一項刑事控告作出判決，除非有關程序不帶有刑事或懲罰性質，才作別論。與普羅大眾無關的紀律性法律程序，通常帶有這種既非刑事、亦非懲罰的性質。根據規管性法律展開的法律程序，其目的基本上屬防護性而非懲罰性或阻嚇性，因此亦可能帶有相同性質。本席將在下文（第59至60段）更深入地討論這一點。為着預防性而非懲罰性或阻嚇性的目的而展開的法律程序，情況亦然。可作出補償性懲罰的法律程序亦同樣帶有非刑事和非懲罰的性質。\n38.\n上文所引述Hope of Craighead勳爵在\nMcCann\n一案中的言論，須在顧及斯特拉斯堡法庭所確立的一項法理原則下予以理解，該項原則指“帶懲罰性及阻嚇性而非補償性的罰款只要數額夠大，便可能意味着有關事宜屬‘刑事’性質 ”\n13\n。在案例\nNapp Pharmaceutical Holdings Ltd v. Director General of Fair Trading\n14\n中，法庭接納，就施行\n第6條\n而言，假如一項罰則旨在嚴懲有關行為和起阻嚇作用，則有關法律程序便可正確地被分類為刑事程序。按此理解，沒有被稱為刑事程序的法律程序一般不會為施行《人權法案》而被分類為刑事程序；除非法庭可能對有關不當行為施加的懲罰相當嚴厲，始作別論。除此點之外，上述引自\nMcCann\n一案的說話準確地說明了一項大原則，而其應用範圍取決於上文所述的三項因素。\n39.\n根據本土法律下的分類，內幕交易法律程序無疑屬於民事程序，這也是與訟各方的共同基礎。事實上，立法機構曾刻意決定透過民事法律程序處理內幕交易較引用刑事法為恰當。\n《證券條例》\n旨在強化審裁處所能施加的制裁，藉以更有效地阻嚇內幕交易活動。在\n《證券條例》\n制訂之前，支持審裁處裁決的唯一制裁是公開譴責，因為當時政府認為由於取證困難，所以刑事或民事制裁均不能有效防止本地的內幕交易活動。\n40.\n在制訂\n《證券條例》\n之前，由立法機構成立的專責小組花了十三個月仔細研究有關條例草案。財政司提出二讀有關條例草案時，提述專責小組的各項建議及其他意見陳詞，然後表示：\n“……正如本人在向本局提出條例草案時曾經表明，我們仍然認為現時不應將內幕交易定為刑事罪行，但情況應因應審裁處加強制裁後的效果及強制執行行動的成效而予以檢討。事實上，刑事制裁在其他地區已證明無效，理由包括在檢控和把受疑人定罪方面存在困難。我們堅信，在現階段，交由審裁處處理是最能靈活和有效地對付本港的內幕交易問題的做法。”\n41.\n接着須考慮的是有關法律程序所針對的失當行為的性質，以及有關懲罰的性質和嚴厲程度。“內幕交易”的定義載於\n《證券條例》\n第9條\n，當中列出六種形式的內幕交易，但只有其中三種與本案有關。每一種形式的內幕交易的最重要元素都是“消息”的使用。\n第8條\n對“消息”一詞界定如下：\n“8. ‘有關消息’\n在本條例中，關於一間機構的‘有關消息’（relevant information）指關於該機構的，而並非普遍為慣常（或相當可能會）進行該機構的上市證券的交易的人所知道的明確消息，但如被上述人士知道，便相當可能會令上述證券的價格有不是無關重要的變動。”\n42.\n與本案有關的三種形式的內幕交易其核心元素都是對一家上市機構的有關消息的知悉。第一種形式的內幕交易是掌握該等消息的人進行該機構上市證券的交易，或在知道或在有合理理由相信另一人會進行上述上市證券的交易的情況下，促致或慫使該另一人進行上述上市證券的交易。\n43.\n第二種形式的內幕交易是與該機構有關連的人向另一人披露前者知道是關於該機構的有關消息，並且知道或有合理理由相信該另一人會利用該等消息，以進行或慫使或促致別人進行該機構上市證券的交易。\n44.\n在某種意義上與第二種形式相對應的是第三種形式，這是指任何人：\n(i) 知道另一人與該機構有關連；及\n(ii) 知道或有合理理由相信該另一人因與該機構有關連而掌握關於該機構的有關消息，\n並在知道消息是關於該機構的有關消息的情況下，自該另一人處得到該消息，以及進行或慫使或促致別人進行該機構上市證券的交易。\n45.\n內幕交易是“隱伏的禍害”\n15\n，對金融市場的健全性及公眾和投資者對市場的信心構成威脅。\n《證券條例》\n旨在杜絕內幕交易和提高市場透明度，從而提升及保持香港作為國際金融中心的地位。為了達到這個重要目的，政府決定向審裁處賦予額外權力，使之能判處罰款及作出取消資格命令。\n46.\n內幕交易無疑構成非常嚴重的失當行為。它是一種不誠實的失當行為，涉及使用與一家公眾公司有關並不為公眾所知的股價敏感消息以謀取私利，而違規者是在知悉或有理由相信存在\n《證券條例》\n第9條\n所訂明的關鍵元素的情況下作出相關失當行為。公開譴責過往被認為是適當的制裁，這顯示了內幕交易被視為極嚴重的失當行為，而某人一旦被裁定曾進行這種交易，其聲譽可能會嚴重受損。\n47.\n再者，內幕交易行為可隨時被定性為刑事行為。事實上，作為現時規管內幕交易的法例的《證期條例》，訂立了民事和刑事雙重體制來處理六種市場失當行為。制訂《證期條例》的目的是加強針對內幕交易的可用制裁的阻嚇和懲罰效果，理由為\n《證券條例》\n下的體制不足以有效地打擊市場不當行為。英國、美國和澳洲等地在此之前已採用類似的雙重體制。\n48.\n新的民事體制下的其中一環，是根據《證期條例》成立、負責審理懷疑涉及市場失當行為的案件的市場失當行為審裁處。該審裁處獲賦權施加民事制裁，包括命令交出藉市場失當行為而獲得或增加的利潤，但無權判處罰金或罰款。政府決定不賦予市場失當行為審裁處判處罰金的權力，乃受到其所取得的法律意見的影響，該意見指出這項權力可能會導致違反《人權法案》。\n49.\n除了內幕交易屬於極嚴重的失當行為之外，根據\n第23(1)(c)條\n判處的罰款類似罰金\n16\n，目的是懲罰和阻嚇內幕交易者。施加罰款的法定條文旨在藉着使進行內幕交易的人蒙受重大金錢損失而阻嚇這類活動\n17\n。審裁處指出，當有關條例草案起初提交立法機構時，後來成為\n第23(1)(c)條\n的條文是使用“罰金”一詞，而不是該條文現時所使用的“罰款”一詞。從該條文的文意看來，這似乎是一個“沒有真正差異的區別”的典型例子。罰款額可以高達內幕交易者和任何其他人因內幕交易而獲得的利益（而非僅限於內幕交易者本人所獲得的利益）的三倍，因此“可能極為龐大”\n18\n。一名內幕交易者即使本身並無獲得利潤，仍可能須繳付巨額罰金。雖然罰款額因要按照所獲得的利潤來釐定而受到限制，但本席認為這並無減損罰款的懲罰和阻嚇性質和使之成為補償性懲罰。判處罰款是對於極嚴重失當行為的懲罰。\n50.\n這項失當行為的極嚴重和不誠實性質以及有關懲罰的嚴厲程度，均是足以支持把有關法律程序和失當行為分類為刑事的有力理據。另一方面，有關法律程序的某些特點，被認為顯示該等程序帶民事性質。這些特點包括：缺乏正式控罪、缺乏構成刑事紀錄的定罪判決，以及欠缺判處監禁的規定。\n19\n51.\n本案上訴人強調涉案程序缺乏正式控罪以及不利的裁決並不構成定罪紀錄。然而，但這兩項因素必須根據一項重要原則來考慮，這就是人權及基本自由的保證着重實質內容而非形式。這項原則獲斯特拉斯堡法庭經常引用以確保《歐洲公約》下的權利得到有效保障\n20\n，在《權利公約》和《人權法案》的詮釋方面亦具有相同效力。法庭不應囿於缺乏正式控罪這一點，而是必須確定被要求對一項關乎嚴重失當行為的指稱作出回應的人一旦敗訴後會否受到懲罰。假如法庭在此情況下裁定缺乏正式控罪和作出定罪紀錄的規定使有關法律程序不受《人權法案》\n第10\n及\n11條\n保障的話，這不但會大大削弱這些條文所給予的保障，而且會促使取形式而捨實質內容。\n52.\n儘管沒有規定施加監禁的條文，但須考慮到以下一事：未有按照根據\n《證券條例》\n第23(1)(c)條\n發出及根據\n第29條\n註冊的命令繳付罰款的人士可被視為藐視法庭從而被判罰，換言之，欠交罰款者可被剝奪自由。此外，正如上文所述，判處罰款的權力與判處罰金的權力不相伯仲，目的都是懲罰和阻嚇內幕交易者，而這情況使缺乏規定施加監禁的條文這項因素的重要性減弱。不管如何，純綷因為沒有訂明監禁刑罰而把可導致某人被裁定干犯嚴重失當行為和被判處巨額罰款的法律程序分類為民事程序的做法，並無理據支持。\n53.\n對極嚴重失當行為判處嚴厲懲罰以收阻嚇之用的權力，乃符合斯特拉堡法庭所確認的一項原則，即除非法庭能夠在有關法律程序中判處罰款以作懲罰，否則該程序不涉及對\n第6條\n所指的刑事控告作出判定\n21\n。同樣因素亦正好回應上訴人指“即使法庭判處巨額罰款，也不一定支持斷定有刑事控告”的陳詞。\n54.\n本案所涉的法律程序並非紀律程序，因為有關法例條文適用於普羅大眾，而非局限於某類人士（例如專業人士），這有別於上訴人所援引的\nBrown v.\nUnited Kingdom\n22\n一案。由於內幕交易條文不屬紀律性條文，上訴人所援引的其他涉及紀律程序的斯特拉斯堡法庭案例\nRavnsborg v. Sweden\n23\n、\nPutz v. Austria\n24\n及\nR v. Securities and Futures Authority ex parte Fleurose\n25\n等對本案並無幫助。\n55.\n上訴人亦倚重案例\nAir Canada v. United Kingdom\n26\n，但該案與本案迥然不同。在該案中，英國海關當局根據一項法定權力扣押和沒收一架飛機，理由是在機上發現一大批屬違禁藥物的大麻。該飛機的擁有人和營運者於繳付以行政方式施加的50,000鎊罰款後獲交還該飛機。斯特拉斯堡法庭裁定事件並不涉及對一項刑事控告作出判定，因此屬民事程序。有關行政程序為針對任何被用作走私的運輸工具的對物程序，因此帶民事性質。英國海關指涉案飛機運載大麻進入英國的宣稱並無受到爭議。\n56.\n上訴人所提述的其他案例對本案亦無幫助。在\nR (West) v. Parole Board\n27\n一案中，英國上議院裁定，撤銷假釋特許雖然令個人自由受剝奪，但並不涉及《歐洲公約》\n第6條\n所指的刑事懲罰，因為撤銷該等特許的目的是保障公眾而非懲罰違法者。由於撤銷特許的後果純粹是恢復執行早前所判處的刑罰，因此不構成懲罰。\n57.\nSecretary of State for Home Department v. MB\n28\n一案關乎英國內政事務大臣根據當地《2005年防止恐佈主義法令》所作的一項管制令。英國上議院裁定該法例和命令本身的目的是預防而非懲罰、阻嚇或報償，因此並不涉及對\n第6條\n所指的刑事控告作出判定。然而，該案並無確立以下一點：假如有關法例的主要目的是預防或規管，則該立法目的必然是把最終可就嚴重失當行為判處巨額罰款以作懲罰的相關法律程序定性為民事而非刑事。\n58.\n在\nMcCann\n29\n這宗涉及一項反社會行為命令的案件中，法庭裁定案件不屬\n第6條\n的規管範圍，關鍵理由包括該命令的預防性目的以及缺乏懲罰。\n59.\n本席現考慮上訴人的另一項陳詞，即\n《證券條例》\n的規管性特質賦予有關法律程序民事性質。有某些案例典據顯示，為施行與《人權法案》\n第10\n及\n11條\n30\n相若的條文，可根據規管性法規懲處且通常涉及非巨額罰款的罪行或失當行為曾被法庭分類為民事。然而，根據該些案例所作的分類而推斷所有可根據規管性法規懲處的罪行或失當行為均屬民事，並不正當。舉例說，如果一項規管性法規規定須就某項罪行或嚴重失當行為判處監禁或巨額罰款，則很難說有關法律程序應被分類為民事程序。雖然有關法規的規管性特質往往是把有關法律程序定性為民事程序的支持理據，但最重要的考慮因素還是有關罪行或失當行為以及有關懲罰的性質和特性。\n60.\n對\n《證券條例》\n來說，“規管性”並非準確的形容詞。\n《證券條例》\n的規管性質有別於一項發牌計劃或一套載有詳細發牌和註冊規定的全面道路交通法規。指\n《證券條例》\n規管內幕交易的說法不但錯誤，而且蒙蔽或歪曲其真正性質和目的，即實質上旨在藉着懲罰進行內幕交易的人士來消滅這種行為。內幕交易肯定並非規管性罪行。\n61.\n不過，上述意見並沒完全處理上訴人藉指出有關法例屬規管性而尋求提出的論點。上訴人促請法庭注意容許政府和立法機構在選擇如何處理像內幕交易這種“隱伏的禍害”時享有某種程度的自由的好處。正如先前所提到的資料清楚顯示，究竟民事還是刑事法律程序才是對付這種禍害的最有效方法，仍然是待決的問題。上訴人辯稱這構成具說服力的理由，以支持認同不應過份寬鬆地詮釋《人權法案》\n第10\n及\n11條\n，使之凌駕於立法機構把有關法律程序分類為民事程序（特別是阻止把有關罪行非刑事化）的做法。\n62.\n法庭既要重視立法機構的決定，亦須在社會的整體利益與個人權利之間達致公正的平衡\n31\n；既然如此，上述論據可循以下兩方面予以回應。首先，該論據試圖確認\nOzturk v. Germany\n32\n一案中的少數法官意見的效力。該意見認為把罪行（至少是輕微的罪行）非刑事化可能使案件不屬《歐洲公約》\n第6條\n所指的“對一項刑事控告作出判定”，以及規管性罪行不屬該項概念的範圍。正如英國上訴法院法官Potter在\nHan\n33\n一案中指出，斯特拉斯堡法庭並無理會上述少數意見，本席亦沒被說服採納該等意見，儘管\nOzturk\n一案的大多數判決中的某些意見可能因斯特拉斯斯堡法庭後來所作出的判決而須受到限制。法庭只須視本土立法機構所作的分類為一項重要的考慮因素並適當地予以重視。本案並無證據顯示上訴法庭曾誤解或錯誤地運用這項原則而沒有充分重視立法機構的判斷。\n63.\n其次，該項論據試圖藉着令人權保障受制於範圍有欠清晰的立法機構酌情判斷而削減《人權法案》\n第10\n及\n11條\n所給予的保障。以這種方式詮釋\n第10\n及\n11條\n不但有悖法庭向來對保障人權和基本自由的條文所作的寬鬆解釋，而且削弱\n第10\n及\n11條\n向被控干犯可導致懲罰的嚴重失當行為的人士給予的寶貴保障。為使由本土立法機構對相關條文所作的重要的分類獲法庭確認為較第(2)項和第(3)項因素重要或與之同樣重要而削弱這項寶貴的保障，實無理可據。這種做法會干擾法庭在社會利益與個人權利之間所謹慎地達致的微妙平衡，並使個人權利嚴重受損。\n64.\n本席認為，無論個別或整體來看，上訴人所提出的理據均不足以支持把有關法律程序分類為民事程序。\n65.\n本席注意到，聯合國人權委員會（“人權委員會”）在2007年7月第90次會期發布的《一般意見第32號》第15段中提到與《權利公約》\n第14條\n（即《人權法案》\n第10\n及\n11條\n的對等條文）有關的事宜時指出：\n“……刑事控告原則上關乎被宣告為可根據本土刑事法予以懲處的行為。這項觀念可伸延至屬刑事性質並受到制裁 — 而該制裁不管在本土法律中受何等限制仍必須基於其目的、特性或嚴厲程度而被視為懲罰性 — 的行為。”\n指本案所涉的法律程序涉及對一項刑事控告作出判定的結論，符合人權委員會的《一般意見第32號》。\n66.\n據此，本席作出以下結論：由於審裁處有權根據\n《證券條例》\n第23(1)(c)條\n判處罰款，因此有關法律程序涉及對一項刑事控告作出判定。\n67.\n在結束討論這個問題之前，有一項於與訟雙方提出辯據期間所作的意見值得一提，該項意見指規定以民事和刑事雙重體制處理內幕交易行為的法例可能違反《人權法案》。根據現時所得資料，本席認為該項意見並無充分理據支持。\n第\n(1)(b)條問題 —\n有關法律程序是否因\n作出取消資格命令的權力\n而\n涉及\n一項\n刑事控告？\n68.\n基於剛才所得出的結論，本席本無必要討論這個問題，但由於訴訟各方曾就此問題提出詳盡論據，而此問題的答案亦可能對將來的案件具參考價值，因此本席將對此問題發表意見。\n69.\n斯特拉斯堡法庭曾明確裁定，與\n《證券條例》\n第23(1)(a)條\n所賦予的權力相若的取消董事資格的權力乃屬規管性而非刑事性。在\nDC, HS and AD v. United Kingdom\n34\n一案中，斯特拉斯堡法庭所要處理的問題是：涉及以不適宜出任董事為由而針對三名公司董事行使上述權力的法律程序，會否因同時對“民事權利和責任”及“刑事控告” 作出判定而違反《歐洲公約》\n第6條\n？法庭的答案是“不會”。\n70.\n關於該案中的“刑事控告”部分，法庭說\n35\n：\n“……在本案中，有關法律程序按照該國本身法律被分類為民事程序，取消董事資格屬規管性而非刑事性，有關的“懲罰”並非判處罰款或監禁，而是禁止在未經法庭許可下擔任公司董事。儘管申請人無疑損失重大，但也不能因此而把一項本質上屬規管性的事宜說成是[《歐洲公約》]\n第6(1)條\n所指的‘刑事控告’。”\n71.\n在\nPorter v. Magill\n36\n一案中，Hope of Craighead勳爵在提到\n37\nDC, HS and AD v. United Kingdom\n一案時對案中裁決明確表示認同（其發言亦得到Hobhouse of Woodborough 勳爵同意）。\n72.\n上述把基於不適合出任董事或行為不當而取消公司董事資格的權力分類的方式，本身已包含以下觀點：這項權力帶保障性質而非懲罰性質，其主要目的是保障投資者和公眾。這個看法有充分理據支持。不過，代表第一答辯人的御用大律師Lester of Herne Hill勳爵提出這項權力亦有阻嚇和懲罰的目的，因此有理由將之分類為刑事制裁。他援引澳洲高等法院在\nRich v.\nAustralian Securities and Investments Commission\n38\n一案中的判決以支持以下看法：在本案情況下，“懲罰性”與“保障性”難以區分，因為兩者並非互相排斥，而取消董事資格的命令在某些方面亦具有懲罰的特徵。基於這項理由，法庭在\nRich\n一案中裁定，因被告人的不法行為而作出的取消資格命令的後果乃屬一項懲罰。\n73.\nRich\n一案就區分“保障性”與“懲罰性” 而作出的批評無疑相當有力，因此，根據斯特拉斯堡法庭的法理，按\n《證券條例》\n而作的取消資格命令須為施行《歐洲公約》\n第6(1)條\n而被分類為“保障性”。\nDC, HS and AD\n一案的判決在《人權法案》\n第10\n及\n11條\n的詮釋方面極具說服性價值。作出取消資格命令的目的是保障股東、投資者和公眾免受不稱職的法團人員損害，而即使該命令起阻嚇作用，這也只是附帶和從屬於上述目的。要留意，\nRich\n一案並非關於《人權法案》條文的適用範圍，而是關於可否引用免受懲罰和免被取消資格的特權。在高等法院的聆訊中，亦無人促請高等法院法官注意斯特拉斯堡法庭的法理。\n74.\n因此，本席認為，內幕交易條文不會因為根據\n《證券條例》\n第23(1)(a)條\n作出的取消資格命令而涉及對《人權法案》\n第10\n及\n11條\n所指的刑事控告作出判定。\n第\n(2)(a)條問題 — 有否違反免使自己入罪或保持緘默的權利？\n75.\n這裡所牽涉的問題是審裁處可否接納根據《證監會條例》\n第33(4)條\n取得的證據，以及審裁處根據\n《證券條例》\n第17條\n強迫答辯人作供的做法是否正確。第一項爭論點是：審裁處藉《證監會條例》\n第33(6)條\n直接使用證供，有否違反《人權法案》\n第10條\n所保障的接受公正審問的權利？\n76.\n在\nO’Halloran & Francis v. United Kingdom\n39\n一案中，斯特拉斯堡法庭的大法庭說\n40\n：\n“儘管\n第6條\n所指的接受公正審問的權利是一項不受任何條件限制的權利，但構成公正審問的因素須視乎個別案件的情況而定，不能由單一項一成不變的規則來規定。”\n在該案中，當局根據《1988年道路交通法令》（英國）\n第172條\n要求申請人O’Halloran提供有關車輛的司機的全名和地址，或提供他有權發出而又有助於辨認司機身分的其他資料。大法庭的結論是該做法並無違反《歐洲公約》\n第6(1)條\n，並如此說\n41\n：\n“經考慮案件的所有情況，包括受爭議的規管性體制的特別性質和所索取的資料的局限性……，本庭認為申請人保持緘默的權利和免使自己入罪的特權本質上未被破壞。”\n77.\n大法庭指出，雖然該項強迫做法和背後的罪行均帶有“刑事”性質，但該項強迫做法源於Bingham 勳爵在\nBrown v.\nStott\n42\n一案（這是一宗與本案類似的案例）中所描述的以下事實：\n“所有擁有或駕駛汽車的人都知道自己會因此而受一個規管性體制的限制……。訂立這個體制並非因為擁有或駕駛汽車是國家所給予的特權或恩惠，而是管有和使用汽車……被認為有可能導致有人受嚴重傷害。”\n大法庭續說，保有和駕駛汽車的人可被視為已接受作為適用於汽車的規管體制的一部份的某些責任和義務，而該等責任包括把司機的身分通知當局。\n78.\nO’Halloran\n和\nBrown v.\nStott\n兩案與本案不盡相同，本案的失當行為並不輕微，而且會帶來嚴厲懲罰。此外，該兩案中的強迫做法一如Bingham 勳爵在\nBrown v.\nStott\n43\n一案中所指，與一項涉及案情的“單一的簡單問題”有關。再者，正如本席於前文指出，\n《證券條例》\n的宗旨是杜絕而非規管內幕交易。\n79.\n在本案中，有關的問題和答案並非如此局限。它們嚴重侵犯免使自己入罪的特權，亦是審裁處在作出針對答辯人的裁決時所倚賴的證據中的重要部份。因此，雖然\nO’Halloran\n和\nBrown v.\nStott\n兩案認為有關法例在調查和懲處有關人員方面已在保障個人權利與保障公眾利益之間達致公正的平衡，但這項評估對本案並無幫助。\n80.\n本院常任法官李義在\nHKSAR v. Lee Ming-tee and Anor\n44\n一案中所作的獲本院其他法官認同的判詞，較為切合本案的情況。他說\n45\n《人權法案》\n第11(2)(g)條\n所給予的保障：\n“……只是證供方面的豁免權，即‘不得被強迫自供或認罪’的權利，因此範圍遠較普通法下免使自己入罪的特權狹窄。而由於各名答辯人於公司被審查期間仍未遭到檢控，因此該項權利當時並不適用。”\n81.\n常任法官李義續說\n46\n，根據\n第6條\n（《人權法案》\n第10條\n）下在刑事法律程序中接受公正審問的權利，斯特拉斯堡法庭推斷出，免使自己入罪的特權乃是與無罪推定緊密相連的接受公平審問的權利中\n不可缺少\n的部分。這項特權（\n第10條\n特權）伸延至於刑事法律程序展開前強制性地就各項問題而取得的答案。常任法官李義在\nLee Ming-tee\n一案中所作的判決亦支持這個看法，因為他按照\nSaunders v. United Kingdom\n47\n一案，以尊重被告人保持緘默的意願\n48\n作為\n第10條\n的保障的依據。因此，這項保障並不伸延至與被告人的意願無關而強制性地取得的證據，但卻涵蓋強制性地獲得的答案（如遭反對），因為這些答案是在違反被告人意願的情況下取得的。\n82.\n因此，在受制於尚待考慮的相稱性問題下，使用強制性地取得的問答乃屬違反《人權法案》\n第10條\n，即使有關答案是在可被視為展開內幕交易法律程序的“甲”類邀請信發出之前取得，情況亦然。\n83.\n《人權法案》\n第10條\n就免使自己入罪的特權而給予的保障並非絕對\n49\n，而是可以按照本院在相關案例（最新近的是\nLam Yuk Fai v. HKSAR\n50\n）中所闡述的原則而予以減損。在\nLee Ming-tee\n一案中，本院常任法官李義指出\n51\n，強制性地取得的可使被告人自己入罪的資料是可以直接使用的，條件是使用這些資料並不構成對一項嚴重社會問題的不相稱的回應，以及“整體看來並無損害被告人接受公正審問的權利”。\n84.\n上訴人辯稱，由於內幕交易是一種難以證明的隱患，加上被告人已在其他方面獲得公正審問的保障，因此\n第33(6)條\n是符合上一段所述原則的相稱的回應。本席不能接受該項辯據。\n第33條\n所授權的是強制性地對關乎內幕交易案件的核心部分的問題取得答案，而此舉在這方面構成上訴法庭所稱的\n52\n：。\n“……徹底廢除保持緘默的權利。”\n試問徹底廢除該項權利怎能說得上是相稱的回應或在被告人的權利與為着公眾利益而打擊內幕交易之間達致公正的平衡？我們只須把\n第33(4)\n及\n33(6)條\n與下列案例作一對照：(a)在\nBrown v.\nStott\n和\nO’Halloran\n兩案中，法庭裁定，就一項規管性法規而強迫被告人回答單一項簡單的問題，乃屬一項相稱的回應；(b)\nLee Ming-tee\n一案禁止直接使用所取得的答案；及(c)在\nSaunders\n一案中，法庭裁定，法例廢除相關普通法特權加上法例容許在審訊中針對被告人而使用有關問題和答案，乃屬違反\n第6(1)條\n。在本案中，禁止直接使用有關問答的規定只適用於刑事法律程序，但法規明確地容許就該條例的各方面而直接使用有關問答，包括將之使用於審裁處席前的法律程序。案中沒有證據顯示，把禁止直接使用有關問答的規定延伸至審裁處席前的法律程序將不足以達致杜絕內幕交易這個合理和正當的立法目標。這項限制性規定大有可能在公眾利益與個人權利之間取得公正的平衡。\n85.\n因此，\n第33(6)條\n違反《人權法案》\n第10條\n，\n第33(4)條\n亦基於同樣理由而違反\n第10條\n。同理，\n《證券條例》\n第17條\n基於相同理由而侵犯免使自己入罪的特權。\n第17條\n亦同時違反《人權法案》\n第10\n及\n11(2)(g)條\n，因為\n第17條\n於發出“甲”類邀請信後適用。\n第\n(2)(b)條問題 — 審裁處是否須\n運\n用“在無合理疑點下證明”的刑事\n標\n準？\n86.\n審裁處說：\n“主席在開審時的陳述中指出，在受制於相反的陳詞下，適用的舉證標準是‘高度可能性’。我們認為，就本研訊而言，這是適當的舉證標準。\n我們在作出該項結論時，已謹記針對被牽連者的指稱的性質，以及我們作出被牽連者曾進行內幕交易的裁決所可能帶來的後果。\n我們謹記‘高度可能性’的舉證標準是民事尺度中最嚴格的標準，並認為這項標準與本研訊的標的事宜的嚴重性質相稱。這項標準自Success Holdings的研訊以來一直在所有同類研訊中被採用。\n我們已考慮大律師指須在本案中採用較高舉證標準的陳詞，但我們認為本案所涉的爭議點不足以支持我們偏離‘高度可能性’標準。”\n87.\n關於這一點，上訴法庭說：\n“由於普通法規定刑事舉證標準是在無合理疑點下證明，因此我們不相信本庭能在缺乏明確法定條文認許下採用較低的標準，而本庭亦肯定會拒絕這樣做。從這項法例的立法歷史看來，並無證據顯示立法機構當初若然知道內幕交易法律程序其實帶有刑事性質，亦不會規定須在無合理疑點下證案。”\n88.\n“‘高度可能性’舉證標準”這個用語，現須按照本院最近於\nA Solicitor v. The Law Society of Hong Kong\n53\n一案中所作的判決來理解，本院常任法官包致金在該案中說\n54\n（其判詞獲審理該案的其他法官認同）：\n“……‘高度可能性’的說法有誤導成分。”\n89.\n在該案中，本院認同Nicholls of Birkenhead勳爵在案例\nRe H & Others (Minors) (Sexual Abuse: Standard of Proof)\n55\n中所述的處理民事舉證標準的做法為正確。他說\n56\n：\n“ ‘相對可能性衡量’標準是指法庭如果認為證據顯示某事件曾發生的可能性較大，便會信納該事件曾發生。在評估上述可能性時，法庭的其中一個考慮因素是（不論在個別案件中在何等程度上適用）有關指稱愈嚴重，所指的事件便愈不可能發生，因此，足以令法庭斷定該指稱已按‘相對可能性的衡量’標準得以證實的證據便要愈強……。”\n90.\n在\nA Solicitor\n一案中，律師紀律審裁組曾提述“與有關指稱的嚴重程度相稱的較高可能性”，而本院裁定該用語不足以影響案件的結果，因為根據本院對該審裁組的裁斷陳述書的合理理解，該審裁組對民事舉證標準並無任何誤解。同樣的意見亦適用於本案，特別是在考慮到上文所引述的審裁處判決第2和第3段之時為然。\n91.\n《歐洲公約》或《權利公約》既無明確規定運用某項舉證標準，亦完全無提及舉證標準本身。在\nSteel v. United Kingdom\n57\n一案中，斯特拉斯堡法庭說\n58\n：\n“不過，[《歐洲公約》]\n第6(2)條\n並無訂明任何與舉證標準或舉證責任有關的具體權利。”\n而在\nNapp Pharmaceutical Holding\ns\n59\n一案中，競爭委員會上訴審裁小組認為《歐洲公約》並無規定須在無合理疑點下證案。另一方面，斯特拉斯堡法庭曾經作出的一些陳述卻可被理解為支持在無合理疑點下證案的舉證標準。在\nBarbera, Messegue & Jabardo v. Spain\n60\n一案中，斯特拉斯堡法庭在提到\n第6(2)條\n所指的無罪推定時表示\n61\n：\n“第2段體現無罪推定原則。該段其中一項規定是，法庭成員在履行其職責時，不應先入為主地認為被告人曾干犯他所被控的罪行。舉證的責任歸於控方，而\n任何疑點均應使被告人受惠\n。（斜體後加，以示強調）\n這項陳述在\nJanosevic v. Sweden\n62\n一案中獲贊同。\n92.\n根據邏輯，在舉證責任被加諸於控方身上的情況下，“任何疑點均應使被告人受惠”這一句似乎暗喻控方有責任在無合理疑點下證案。\n93.\n再者，在\nIreland v. United Kingdom\n63\n一案中，斯特拉斯堡法庭在決定國家曾否違反\n第3條\n（禁止施行酷刑）時採用“在無合理疑點下證明”舉證標準，但補充說\n64\n：\n“……這項證明可以從共存的充分有力、清晰和一致的推 論或相若的未被反駁的事實推定之中得出。”\n該委員會在\nHardy v. Ireland\n65\n一案中採取類似做法。該案涉及一項“顛倒責任”條文，而該委員會認為“在無合理疑點下證明”的舉證責任仍歸於控方。\n94.\n然而，這些陳述可能純粹反映適用於國家本身司法管轄權的舉證標準。Richard Buxton 爵士曾經指出\n66\n：\n“歐洲人權法庭可能只要求國家法庭作出 ‘定罪判決’(在其他方面未經界定)。”\n95.\n本席認為，根據這些資料，本院並無充分理由斷定《歐洲公約》\n第6(2)條\n規定運用“在無合理疑點下證明”的舉證標準。而由於《權利公約》\n第14條\n的立場較為清晰，因此沒有必要決定《歐洲公約》的立場為何。\n96.\n關於《權利公約》，御用大律師Pannick先生向本院指出，有關的立法準備材料顯示立法機關曾投票決定是否略去草稿中所載的“無合理疑點”準則\n67\n，結果八票贊成，兩票反對，另外三票棄權。\n97.\n另一方面，答辯人則援引人權委員會在1984年的第21次會期就《權利公約》\n第14條\n而發布的《一般意見第13號》，其中第7段指出：\n“……基於無罪推定，證明控罪成立的責任由控方承擔，疑點利益則歸於被告人。除非已在無合理疑點下證明控罪成立，否則不得假定被告人有罪。再者，無罪推定意味着被告人有權獲得符合這項原則的待遇……。”\n98.\n《一般意見第13號》已被上文曾提到的《一般意見第32號》所取代。後者中的以下列段落與本席現正考慮的問題有關：\n“4.\n第14條\n所載的保證，各締約國必須予以尊重，不論每個國家本身的法律傳統和法律為何…\n…\n6. …於任何時間均不得偏離包括無罪推定的公正審判基本原則。\n…\n30. 根據\n第14條\n第2段，受刑事控告的人在未經依法確定有罪以前有權獲假定無罪。無罪推定是保障人權的基石，這項推定向控方施加證明控罪成立的責任；保證除非已在無合理疑點下證明控罪成立，否則不能假定被控人有罪；確保疑點利益歸於被控人；以及規定被控刑事罪名的人必須獲得符合這項原則的待遇…”\n99.\n御用大律師Pannick先生提出，由於人權委員會並非司法機構，因此本院在詮釋《人權法案》\n第10\n及\n11條\n時不應依循或引用上述的一般意見。人權委員會曾被稱為“實質上地位崇高的司法機構”\n68\n；然而，御用大律師Pannick先生所言亦正確，因為人權委員會在發出其一般意見時，並非以司法機構的身分行使司法權力對爭議作出裁決。\n100.\n《權利公約》\n第40(4)條\n賦權人權委員會發出一般意見。該條文規定：\n“委員會須研究本契諾的各締約國所提交的報告。委員會須把其報告和其可能認為適當的一般意見傳達各締約國。”\n101.\n一般意見是人權委員會在擔任審裁角色時所使用的，是有價值的法理學資源。這些意見雖然對本院並無約束力，但在人權委員會以司法機構身分作出裁決時如何或將會如何運用《權利公約》的問題上提供具影響力的指引。\n102.\n在\nAttorney-General of Hong Kong v. Lee Kwong-kut\n69\n一案中，樞密院認為《一般意見第13號》顯示，“在無合理疑點下證明”的舉證標準是在施行《權利公約》\n第14條\n及《人權法案》\n第11(1)條\n時適用的一般標準。由伍爾夫勳爵宣告的樞密院判決表明，《權利公約》\n第14條\n及《人權法案》\n第11(1)條\n准予某程度的靈活性，容許在被告人權益與國家利益之間作出平衡，因此，並不禁止在某些情況下明智和合理地偏離原則\n70\n。然而，伍爾夫勳爵的說話不能被理解為在被分類為刑事程序的法律程序中以民事舉證標準替代刑事舉證標準屬於明智和合理地偏離原則。\n103.\n本席認為，本院應視《一般意見第13號》所指明的“在無合理疑點下證明”標準為施行《人權法案》\n第11條\n而須運用的適當標準，直到《一般意見第13號》被《一般意見第32號》取代（而該項標準的適用性亦藉此而得到鞏固）。在這方面，本席的觀點得到以下事實的有力支持：根據我們的刑事法理學，只要有關法律程序被分類為涉及對一項刑事控告作出判定，便須運用“在無合理疑點下證明”的標準。\n審裁處有否\n運\n用所需的舉證\n標\n準？\n104.\n本判詞的較前部分（第87至90段）曾經提到，審裁處所運用的舉證標準是適用於被指失當行為的嚴重性的民事標準。這項標準可以說得上等同“在無合理疑點下證明”的標準嗎？\n105.\n正如本院常任法官包致金在案例\nA Solicitor v. The Law Society of Hong Kong\n71\n中指出，好些具高度權威性的陳述都贊同以下觀點：就嚴重的案件而言，民事與刑事標準之間的分別“事實上大多屬子虛烏有”\n72\n或實際上難以辨別\n73\n；或“主要是字眼上的問題”\n74\n；或在這些案件中，確實的舉證標準“實際上與刑事標準難以區分”\n75\n。常任法官包致金在\nA Solicitor\n一案中非常清楚地指出\n76\n（引用\nRejfek v. McElroy\n77\n一案的字眼），兩項標準之間的分別“非僅在於字眼上”，以及控方須在無合理疑點下證明一項刑事控罪成立，而這是事實審裁庭所應理解的。審裁處在本案中所提到的“高度可能性”，正好說明了這一點。至於該項標準在審裁處成員的心目中是否等同“在無合理疑點下證明”的標準，則無從知曉。\n106.\n因此，審裁處曾採用不得獲接納的證據和沒有運用刑事舉證標準，這導致審裁處的裁決存有缺陷。\n就實質問題\n而\n作的結論\n107.\n因此，對於本上訴所引起並已指明的問題，本席的答案與上訴法庭所得出的結論是一致的。至於適當補救方法的問題則仍有待考慮。\n第\n(3)條問題：即使有關的內幕交易法律程序並不涉及一項刑事控告，上訴法庭應否\n裁定各名\n答辯人勝訴？\n108.\n基於\n第2(a)\n和\n2(b)條\n問題的答案，這個問題並沒出現。\n第\n(4)條問題：上訴法庭\n是否錯誤地\n沒\n有\n把補救方法\n局\n限於作出一項指判處罰款的法定權力\n因\n違反\n《\n人權法案\n》\n而\n無效\n的命令？\n109.\n上訴人重申他曾在上訴法庭席前提出的論據，即應當採取補救性做法，以儘量使有關法例符合《人權法案》。上訴人又辯指，為達此目的，法庭應干脆删除罰款條文，即\n第23(1)(c)條\n。上訴法庭拒絕接納上述陳詞，並按狹義解釋\n第33(6)條\n和\n第17條\n。這是處理該問題的傳統做法。\n110.\n上訴人的論據建基於標題為“人權法案遭違反時的補救”的\n《香港人權法案條例》\n第6條\n。\n第6(1)條\n規定：\n“(1) 法院或審裁處—\n(a) 在就觸犯本條例的事件而採取的法律行動所引起的訴訟中，而該訴訟是屬其司法管轄權範圍內者；及\n(b) 在涉及觸犯、違反或威脅違反人權法案的事件而屬其司法管轄權範圍內的其他訴訟中，\n可就該項觸犯、違反或威脅違反事件，頒發它有權在該等訴訟中頒發而認為在該情況下屬適當及公正的補救、濟助或命令。”\n上訴人要求法庭頒發的宣告是前所未見的，因為作出這項宣告會導致一項本身並無違反《人權法案》的法例條文被廢除。訴訟各方亦沒引述任何案例以顯示法庭曾藉着裁定一項並無違反《人權法案》的法定條文無效（從而令違反《人權法案》的法定條文得以繼續存在）而使有關法規符合《人權法案》的規定。這或許不叫人意外，因為足以令法庭廢除一項並無違反《人權法案》的法定條文的情況即使存在，亦必然十分罕見。\n111.\n上訴人的回應是指出\n《香港人權法案條例》\n第6(1)條\n十分寬泛；以及指出本席在本院另一宗案例\nLam Kwong Wai\n78\n的判案書中曾經提到法庭有責任為使一項法例條文符合《基本法》而採取補救性詮釋。\n第6(1)條\n無疑是寬泛的，它授權法庭就觸犯或違反該條例的行為頒發法庭有權在有關法律程序中頒發及其認為適當和公正的補救、濟助或命令。\n第6(1)條\n所涵蓋的情況並不限於按狹義解釋一項法規，使之免於觸犯或違反《人權法案》；而是亦包括在不可能作出補救性詮釋時宣告一項法定條文無效。除非\n第6(1)條\n本身就上述權力設立限制，否則本院在行使這項權力時不受到相關的限制。\n112.\n第一項可能的限制是\n第6(1)條\n所授予的權力並無具體包括廢除一項沒有違反《人權法案》的法定條文的權力。相對於上訴人的論據而可以說的是，按照其文意，解釋有關權力時的基礎是假設只有違反《人權法案》的條文才會被廢除。就違反《人權法案》的條文而言，法例毋須具體地授予廢除條文的權力，因為廢除的權力顯然伸延至此類條文，而違反《人權法案》的條文一般都會變成無效。沒有違反《人權法案》的條文的情況則大不相同，人們自然會預期法例會明確地授權使這類條文無效。上述論據不無說服力。\n113.\n不過，本席認為\n第6(1)條\n應按照其寬泛的語言被詮釋為賦權廢除一項並無違反《人權法案》的條文，條件是此舉最符合立法意願。以該方式行使這項權力並非違背立法機構的意願，反而是藉着在符合《人權法案》的情況下最有效地實施有關法例而尊重立法機構的意願和體現其立法目的。按照其字眼，\n第6(1)條\n應被解釋為賦權法庭解除立法意願與《人權法案》所給予的保障之間的緊張狀態，方法是容許法庭在最能體現立法意圖的情況下單單廢除有關法規中導致違反或觸犯的部分，即使該部分本身並無違反《人權法案》。\n114.\n第6(1)條\n明確地施加並與本案有關的唯一限制，是有關補救、濟助或命令必須“\n就\n該項違反”而作出。採用這字眼是因為預期有關補救、濟助或命令與有關違反事件之間有着某種關係或關連。當法庭按狹義解釋一項違反《人權法案》的條文或將之廢除時，這種關係顯然存在；但當法庭按狹義解釋一項並無違反《人權法案》的條文或將之廢除以使有關法例符合《人權法案》時，這種關係是否亦存在？\n115.\n這個問題並不容許一個不受任何條件約制的答案。“就”這個字具廣泛含意，表示某種關係或關連。被按照狹義解釋或廢除的條文與有關違反事件之間須存在着某種關係或關連。在本案的特殊情況下，這種關係或關連亦存在。\n第23(1)(c)條\n賦予判處罰款的權力，乃屬上文所指出的違反事件的理由和成因。若非該項權力存在，有關法律程序便不會添上主要屬刑事的性質，亦不會違反《人權法案》。至於該關係或關連屬間接而非直接，這一點實無關重要。\n116.\n本席同意本院有權作出上訴人所尋求的命令，但仍須決定這做法是否適當和公正。\nLam Kwong Wai\n一案除了顯示法庭有責任至少藉補救性詮釋而使法定條文符合《基本法》的部分外，對回答上述問題並無幫助。上訴人的論據要求本院採取進一步的做法。\n117.\n本席要考慮的問題是：在謹記關於某項條文無效的宣告的實施可追溯到有關條文的制訂日期下，上述做法是否太過份？本席不認為該做法太過份。首先和也許是最重要的考慮因素，是結果必定會符合立法意願。事件的背景顯示立法機構情願犧牲判處罰款的權力和保留\n《證券條例》\n的其他條文，也不願失去導致違反《人權法案》的調查權力。這項補救方法所帶來的情況，完全符合立法機構在現時情況下所會懷有的意願。從立法機構的角度來看，這個補救方法是適當的；從上訴人的角度來看，這個補救方法是適當和公正的，因為它有助保存審裁處所作的裁決和命令（判處罰款的部分除外），包括交出所得利益和取消資格。\n118.\n至於這個補救方法從答辯人的角度看來是否適當和公正，則較難解答。這個補救方法比不上上訴法庭所給予的濟助，因為它保存了審裁處所作的裁決和取消資格命令。審裁處在作出裁決時運用了民事舉證標準而非刑事舉證標準，但基於有關法律程序因判處罰款的權力而帶有刑事性質，因此適用的是刑事標準。不過，如果有關法律程序的正確結果是宣告\n第23(1)(c)條\n無效，則把有關法律程序定性為刑事程序的理由即告消除。因此，基於法庭所給予的濟助，有關法律程序的真正性質屬於民事，審裁處運用民事舉證標準亦屬正確。\n119.\n另一項須考慮的事宜是下級法院席前的法律程序極可能是在以下基礎上進行：假如答辯人勝訴，補救方法便是上訴法庭所給予的補救。在該點上，資深大律師鄧樂勤先生在上訴法庭的法律程序行將完結時曾表示將要求法庭作出上訴人現在要求本院作出的命令，這可能是第一次透露上訴人所會採取的行動。儘管如此，宣告有關條文無效仍然是該法律程序的正確後果，這項要求於現在或當時無法預料，並不重要。上訴人沒有或可能沒有在有關法律程序的較早階段預告將會尋求這項命令，亦無關宏旨；畢竟答辯人既沒有也不能聲稱他們由於在上訴法庭的法律程序快將完結時才得知上訴人所尋求的命令的性質而蒙受損害。上訴人並非提出新的案情，以致須提出額外證據或另行作出事實裁決。這只是上訴法庭在應答辯人之請而維持有關條文違反《人權法案》的判決後，繼而決定須作出何等命令方屬適當。\n120.\n因此，本席按照答辯人的陳詞，裁定\n第23(1)(c)條\n下判處罰款的權力因導致違反《人權法案》\n第10\n及\n11條\n的情況而無效，而這是適當和公正的裁決。\n命令\n121.\n基於上述理由，本席作出以下命令：\n(1) 上訴得直，但只限於補救方法、根據\n《證券條例》\n第23條\n作出的命令以及上訴法庭席前的法律程序的訟費。\n(2) 取消以下由上訴法庭作出的命令：判上訴得直的命令、撤銷和取消審裁處針對答辯人作出的不利裁決的命令、根據\n《證券條例》\n第23條\n作出的相應命令，以及與上訴法庭法律程序的訟費有關的命令。\n(3) 裁定向上訴法庭提出的上訴部分得直，以取代被取消的命令，以及—\n(a) 宣告\n《證券條例》\n第23(1)(c)條\n無效；\n(b) 恢復審裁處針對答辯人作出的不利裁決；\n(c) 恢復審裁處根據\n《證券條例》\n第23(1)(a)\n、\n23(1)(b)\n和\n27條\n作出的命令。\n(4) 作出一項暫准命令，即本上訴的每一方均應承擔本身的訟費。任何一方如欲要求本院作出不同的命令，應於21天內提交書面陳詞。\n終審法院首席法官李國能：\n122.\n本院一致作出列於本院非常任法官梅師賢爵士的判詞末段的各項命令。\n（李國能）\n終審法院首席法官\n（包致金）\n終審法院常任法官\n（陳兆愷）\n終審法院常任法官\n（李義）\n終審法院常任法官\n（梅師賢爵士）\n終審法院非常任法官\n上訴人： 由律政司延聘御用大律師David Pannick先生、資深大律師鄧樂勤先生及大律師Nicholas Cooney先生代表。\nFACV 19/2007的答辯人：由冼國雄、蘇福禎律師行延聘御用大律師Lester of Herne Hill勳爵、資深大律師施偉賢爵士及大律師麥兆祥先生代表。\nFACV 20/2007的答辯人：由陳應達律師事務所延聘大律師施頌安先生代表。\n[本譯文由法庭語文組專責小組翻譯主任翻譯，並經由湛樹基律師核定。]\n1\n(1993) 3 HKPLR 1\n。在該案的上訴過程中，鍾禮善法官指有關法律程序不屬刑事程序的結論並沒受到質疑。該項根據其他理由而提出的上訴被上訴法庭駁回：見\n(1993) 3 HKPLR 39\n。\n2\n見案例\nR (Gillian) v. Commissioner of Police of the Metropolis\n[2006] 2 WLR 537\n第549頁，判詞第23段，按Bingham of Cornhill勳爵所言。\n3\n例子包括\nEngel v. The Netherlands (No.1)\n(1976) 1 EHRR 647\n第678頁，判詞第81段；\nOzturk v. Germany\n(1984) 6 EHRR 409\n；\nRavnsborg v. Sweden\n(1994) 18 EHRR 38\n；及\nAP, MP and TP v. Switzerland\n(1998) 26 EHRR 541\n第558頁，判詞第39段。\n4\n見案例\nHan v. Customs and Excise Commissioners\n[2001] 1 WLR 2253\n第2260頁G至H行，按英國上訴法院法官Potter 所言；及\nR (McCann) v. Manchester Crown Court\n[2003]\n1 AC 787\n第810頁E至F行、第819頁B至C行及第830頁H行。\n5\n見案例\nEngel v. The Netherlands (No.1)\n(1976) 1 EHRR第678頁，判詞第81段。\n6\n見案例\nOzturk v. Germany\n(1984) 6 EHRR第422頁，判詞第52段，亦見案例\nRavnsborg v. Sweden\n(1994) 18 EHRR 38\n第52頁，判詞第35段\n7\n見案例\nHan v. Customs and Excise Commissioners\n[2001] 1 WLR第2260頁G至H行。\n8\n[2003] 1 AC第810頁F行。\n9\n見案例\nHan v. Customs and Excise Commissioners\n[2001] 1 WLR 2253\n第2276頁H行至第2277頁B行。\n10\n同上第2281頁A行。\n11\n見案例\nSecretary of State for the Home Department v. MB\n[2007] 3 WLR 681\n第692頁G行，按Bingham of Cornhill勳爵所言。\n12\n[2003]\n1 AC 787\n第819頁D至F行（Hobhouse of Woodborough勳爵和Scott of Foscote勳爵表示贊同）；亦見案例\nR (West) v. Parole Board\n[2005] 1 WLR 350\n第364頁F行，按Bingham of Cornhill勳爵所言（“刑事控告的特點是它可導致懲罰”）。\n13\n見案例\nBrown v. United Kingdom\n(1998) 28 EHRRCD CD 233，在 CD 236。\n14\n競爭委員會上訴審裁組於2002年1月15日宣告且未經報導的判決，第23頁第98段。\n15\n見案例\nInsider Dealing Tribunal v. Shek Mei Ling\n(1999) 2 HKCFAR 205\n第207頁I行，按終審法院非常任法官Nicholls of Birkenhead勳爵所言。\n16\n同上第209頁J行。\n17\n同上第210頁A行。\n18\n同上第208頁C行。\n19\n例如見案例\nR (West) v. Parole Board\n[2005] 1 WLR 350\n第365頁，按Bingham of Cornhill勳爵所言。\n20\n見案例\nSecretary of State for Home Department v. MB\n[2007] 3 WLR 681\n第692頁H行，按Bingham of Cornhill勳爵所言。\n21\n見案例\nB v. Chief Constable of Avon & Somerset Constabulary\n[2001] 1 WLR 340\n第353頁，判詞第28段，按Bingham of Cornhill勳爵所言；以及案例\nMcCann\n[2003] 1 AC第820頁C至D行，按Hope of Craighead勳爵所言。\n22\n(1998) 28 EHRRCD ，在CD 233。\n23\n(1994) 18 EHRR 38\n第52至53頁，判詞第34至35段。\n24\n(2001) 32 EHRR 271\n第287至289頁，判詞第32至38段。\n25\n[2001] IRLR 764\n;判決經上訴後獲確認：見\n[2002] IRLR 297\n。\n26\n(1995) 20 EHRR 150\n。\n27\n[2005] 1 WLR 350\n。\n28\n[2007] 3 WLR 681\n。\n29\n[2003]\n1 AC 787\n。\n30\n例如見案例\nDC, HS\n&AD v. United Kingdom\n[2000] BCC 710\n;\nBrown v. Stott\n[2003]\n1 AC 681\n;\nO’Halloran & Francis v. United Kingdom\n，歐洲人權法院大法庭， 2007年6月29日。\n31\n見案例\nSporrong & Lonnroth v. Sweden\n(1982) 5 EHRR 35\n和\nBrown v. Stott\n第703頁C至D行，第704頁F行。\n32\n(1984) 6 EHRR 409\n。\n33\n[2001] 1 WLR 第2274頁G至H行。\n34\n[2000] BCC 710\n。\n35\n同上第716頁C行。\n36\n[2002]\n2 AC 357\n。\n37\n同上第488頁。\n38\n(2004) 220 CLR 129\n;亦見案例\nChief Executive Officer of Customs v. Labrador Liquor Wholesale Pty Ltd\n(2003) 216 CLR 161\n第206至207頁。\n39\n歐洲人權法院大法庭，2007年6月29日。\n40\n第16頁，判詞第53段。\n41\n同上第18頁，判詞第62段。\n42\n[2003]\n1 AC 681\n第705頁G至H行。\n43\n同上第705頁C行。\n44\n(2001) 4 HKCFAR 133\n。\n45\n同上第171頁H行。\n46\n同上第173頁J行。\n47\n(1996) 23 EHRR 313\n(法庭在該案中裁定，法定廢除該項普通法特權加上法例容許在審訊中針對被告人使用有關問題和答案，已導致違反\n第6(1)條\n)。\n48\n同上第337至338頁，判詞第69段；另見案例\nHKSAR v.\nLee Ming-tee\n(2001) 4 HKCFAR 第175頁A至C行。\n49\n見案例\nBrown v.\nStott\n[2003]\n1 AC 681\n第693頁F行至 第695頁C行、第709頁A至C行，第719頁至第722頁B行。\n50\n(2006) 9 HKCFAR 281\n。\n51\n(2001) 4 HKCFAR第175頁G行，引述案例\nBrown v.\nStott\n[2003]\n1 AC 681\n。\n52\n判案書第66段。\n53\n終審法院民事上訴 2007年第24號，2008年3月13日。\n54\n同上第63段。\n55\n[1996] AC 563\n。\n56\n同上第586頁B至G行。\n57\n(1998) 28 EHRR 603\n。\n58\n同上第616頁，判詞第70段。\n59\n判詞第96段，引述Richard Buxton 爵士的文章 “The Human Rights Act and the Substantive Criminal Law” [2000] Crim. LR 331。\n60\n(1989) 11 EHRR 360\n。\n61\n同上第387頁，判詞第77段。\n62\n(2004) 38 EHRR 473\n第505頁。\n63\n(1978) 2 EHRR 25\n。\n64\n同上第79頁，判詞第161段。\n65\n申請1994年第23456 號。\n66\n見“The Human Rights Act and the Substantive Criminal Law” [2000] Crim. LR 331第338頁；亦見\nHuman Rights and Criminal Justice\n，第二版，第9-78段。\n67\n見Marc J Bossuyt著\nGuide to the “Travaux Preparatoires of the\nInternational Covenant on Civil and Political Rights\n”\n（Martinus Nijhoff Publishers，1987年）第277、291至292頁。\n68\n見案例\nTavita v. Minister of Immigration\n[1994] 2 NZLR 257\n第260頁，按新西蘭上訴法院院長Cooke所言；在Lester 與 Pannick著\nHuman Rights Law and Practice\n（第二版）第621頁被引述。\n69\n[1993] AC 951\n。\n70\n同上第968頁B至C行，第969頁D至F行。\n71\n判詞第82至84段。\n72\n見案例\nB v. Chief Constable of Avon and Somerset Constabulary\n[2001] 1 WLR 340\n第354頁A行。\n73\n見案例\nR (McCann) v. Manchester Crown Court\n[2003] 1 AC 第812頁D至F行。\n74\n見案例\nR v. Home Secretary, ex parte Khawaja\n[1984] AC 74\n第112頁E行。\n75\n見案例\nGough v. Chief Constable of Derbyshire Constabulary\n[2002] QB 1213\n第1243頁A行。\n76\n判詞第84段。\n77\n(1965) 112 CLR 517\n。\n78\n第610-611頁，判詞第78段。", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2007/FACV000019Y_2007.docx", + "file_name": "FACV000019Y_2007.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkcfa/2014_HKCFA_17/case.json b/zh_cases_hkcfa/2014_HKCFA_17/case.json new file mode 100644 index 0000000..300a20d --- /dev/null +++ b/zh_cases_hkcfa/2014_HKCFA_17/case.json @@ -0,0 +1,26 @@ +{ + "Date": "18 Feb, 2014", + "Action No.": "FACV10/2013", + "Neutral Cit.": "[2014] HKCFA 17", + "case_title": "JA 對 入境事務處處長", + "page_title": "JA 對 入境事務處處長 | [2014] HKCFA 17 | HKLII", + "case_history": [ + { + "name": "FACV10/2013", + "link": "https://www.hklii.hk/tc/appealhistory/FACV/2013/10" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkcfa/2014/17", + "neutral_cit": "[2014] HKCFA 17", + "court_code": "HKCFA", + "content": "FACV7Y/2013 GA 對 入境事務處處長\n[Chinese Translation – 中譯本]\nFACV 7, 8, 9及10/2013\nFACV 7/2013\n香港特別行政區\n終審法院\n終院民事上訴2013年第7號\n（原上訴法庭民事上訴2011年第45號）\n__________________\n上訴人（申請人）\nGA\n對\n答辯人（答辯人）\n入境事務處處長\n__________________\nFACV 8/2013\n香港特別行政區\n終審法院\n終院民事上訴2013年第8號\n（原上訴法庭民事上訴2011年第46號）\n__________________\n上訴人（申請人）\nPA\n對\n答辯人（答辯人）\n入境事務處處長\n__________________\nFACV 9/2013\n香港特別行政區\n終審法院\n終院民事上訴2013年第9號\n（原上訴法庭民事上訴2011年第47號）\n__________________\n上訴人（申請人）\nFI\n對\n答辯人（答辯人）\n入境事務處處長\n__________________\nFACV 10/2013\n香港特別行政區\n終審法院\n終院民事上訴2013年第10號\n（原上訴法庭民事上訴2011年第48號）\n__________________\n上訴人（申請人）\nJA\n對\n答辯人（答辯人）\n入境事務處處長\n__________________\n主審法官：\n終審法院首席法官馬道立、\n終審法院常任法官李義、\n終審法院常任法官鄧國楨、\n終審法院非常任法官陳兆愷及\n終審法院非常任法官簡嘉麒勳爵\n聆訊日期：\n2014年1月8-9日\n判案書日期：\n2014年2月18日\n__________________\n判 案 書\n__________________\n終審法院首席法官馬道立：\nA 前言\n1.\n第一、二、三名上訴人（GA、FI和JA）是經核實難民，第四名上訴人（PA）是獲確立酷刑聲請人。這幾宗上訴的爭議點，概括說來，就是在香港這兩類人有沒有工作權。\n2.\n長久以來，尤其是過往70年，世界各處不同地方有很多人為了種種原因離開自己的國家來到香港。有些是為經濟利益而來，有些是因為政治、種族、宗教、社會或其他理由逃離他們的國家。在1970年代，有大量難民由越南湧入，這些人俗稱船民。近年來，有其他人從世界其他地方來到香港。四名申請人分別是來自布隆迪、斯里蘭卡和巴基斯坦。\n3.\n香港並非《難民公約》\n[1]\n的其中一方，所以不會對尋求庇護的人給予疪護。雖然如此，香港政府制定了政策處理聲稱是難民的人。大體上，雖然政府\n[2]\n堅持它沒有責任收容根據《難民公約》尋求庇護的任何人，但當有人聲稱是難民，政府通常會待該人的庇護申請獲處理了，才把他或她遣送或遞解離境。處理此類庇護聲請的機構是聯合國難民事務高級專員署香港辦事處（“聯合國難民署香港辦事處”）。聯合國難民署香港辦事處是獲聯合國大會授權的機構，負責處理難民和難民面對的困難。在本訴訟的情況裏，聯合國難民署香港辦事處的職責是處理庇護聲請以及，如果聲請確立，提供解決辦法，即自願遣返或移居第三國。\n4.\n如果庇護聲請確立，入境事務處處長（“處長＂）可行使酌情權准許有關人士留在香港（通常要擔保），等待聯合國難民署香港辦事處安排自願遣返或移居海外。如果聲請不獲確立，那麼除非該人因其他理由獲准留在香港，否則處長便可能要求他離開香港\n[3]\n。如先前所述，四名申請人之中有三名是經核實難民\n[4]\n；換言之，他們的難民聲請已確立，達到聯合國難民署香港辦事處信納的程度，正等待移居海外。本院所得證據顯示，截至2010年1月31日，在香港此等經核實難民有82人。\n5.\nPA在2000年12月抵港，是酷刑聲請人。香港是《禁止酷刑公約》\n[5]\n的其中一方。根據該公約\n[6]\n，如有充分理由相信任何人在另一國有遭受酷刑的危險，任何締約國不得將該人驅逐、遣送或引渡至該國。負責決定有關人士（酷刑聲請人）是否有此危險的是有關的締約國。在香港，此責任由入境事務處承擔（現時由入境事務處的酷刑聲請審理科負責）。雖然有關人士通常會根據上述兩份公約提出聲請，但裁定某人的酷刑聲請能否妥當地確立，這個責任和聯合國難民署香港辦事處調查某人是否具有難民資格的責任是有分別的\n[7]\n。2005年5月，PA獲確立為酷刑聲請人\n[8]\n，自此一直在擔保下留在香港。本院所得證據顯示，處長仍在調查PA返回斯里蘭卡是否安全。\n6.\n四名申請人的個人情況在原訟法庭和上訴法庭的判案書已有頗詳細的敍述\n[9]\n，所以本席不需在本判案書複述這些事情。不過，本席必須指出，四名申請人或至少四人之中某些人共有某些特點︰\n(1) 如上訴法庭指出\n[10]\n，各申請人“事實上已在香港滯留了一段長時間”。現時GA在香港已經差不多10年，他成為經核實難民後至今也幾乎有同樣長的時間。FI的滯留期大約九年，JA則差不多12年。至於PA，他在香港已經超過13年，而他確立為酷刑聲請人後至今已經差不多六年。\n(2) 各申請人不是經濟移民。本案的司法覆核法律程序展開時，他們沒有工作准許。\n(3) 然而，法律程序展開後，GA，FI和PA分別在2013年不同日子獲處長給予工作准許。他們的工作准許不是無限期的，在今年不同日子就會屆滿。\n(4) JA因干犯與毒品有關的罪行而正在監獄服刑。\n7.\n本席現在會敍述這幾宗上訴裏須裁定的確實爭議點，但在此階段先簡要地說明各方的立場是有用的︰\n(1) 各申請人\n[11]\n的立場是他們在香港有憲法保障的工作權，處長行使酌情權決定給予或不給予工作准許時必須謹記他們有此權利。各申請人並不質疑處長在這方面有酌情權（或許在一個重要的情況下除外（請看下文第（3）小段）），但他們聲稱既然憲法規定有工作權，如有任何人行使酌情權不准受保護人士工作，就是侵犯這項憲法權利，便須運用大家熟悉的相稱性驗證標準\n[12]\n，以證明這樣做是有充分理由支持的。關於這一點，各申請人力言處長不准留港已超過四年的受保護人士工作的政策是沒有充分理由支持的。這論點和他們在上訴法庭提出的一樣。\n(2) 這項受憲法保障的工作權據說載於下列其中一項或多項條文裏：《香港人權法案》（“《人權法案》”）第14條\n[13]\n、《經濟、社會與文化權利的國際公約》（“《文化公約》”）第6條\n[14]\n和《基本法》第33條\n[15]\n（隱含該權利）。各申請人說普通法也包含工作權。\n(3) 各申請人還倚賴《人權法案》第3條，該條規定任何人不得被施以“酷刑，或予以殘忍、不人道或侮辱之處遇或懲罰”。各方同意本案只涉及“不人道或侮辱之處遇”（為方便起見，本席將這兩種處遇合共簡稱為“不人道處遇”）。各申請人爭辯說，如果有重大和迫切的風險，會引致不人道處遇，處長便沒有酌情權，只可給予工作准許；換言之，在這情況下，作出其他決定是不會有充分理由支持的，所以相稱性驗證標準不適用。\n(4) 因此，各申請人要求適當的濟助，即撤銷處長的有關決定，使他們（以及其他像他們那樣的人）在香港享有工作權。\n(5) 答辯人一方\n[16]\n則陳詞說處長在出入境管制方面有廣泛的酌情權，包括（在本案這是重要的）給予或拒絕給予境況和各申請人相同的人士工作准許。答辯人不接受各申請人所說的有憲法保障的工作權（據說存在於《人權法案》第14條、《文化公約》第6條和《基本法》第33條），並說這些條文根本不適用於本案的標的事宜，所以無論如何對各申請人不會有幫助。關於這一點，答辯人倚賴\n《香港人權法案條例》\n（“《人權條例》”）\n第11條\n[17]\n、英國政府在1976年5月20日確認《公民權利和政治權利國際公約》（“《權利公約》”）時訂立的保留條文\n[18]\n及英國在1976年5月20日確認《文化公約》時也訂立的，關於《文化公約》\n第6條\n的適用範圍的保留條文\n[19]\n。至於《基本法》\n第33條\n，答辯人倚賴《基本法》\n第41條\n[20]\n。據此，答辯人陳述說相稱性驗證標準根本派不上用場，而即使須運用該驗證標準，處長的政策無論如何都符合該驗證標準。普通法裏有沒有工作權也受爭議。\n(6) 答辯人當然不至於說關於出入境事務的酌情權是沒有限制的。答辯人接受如果有特殊情況，可以運用酌情權給予像各申請人那樣的人工作准許。此外，答辯人也不爭議酌情權是受《人權法案》\n第3條\n中關於不人道處遇的條文制約的\n[21]\n。不過，處長陳詞說無論哪一個申請人都沒有證據顯示有真正和重大的風險會引致不人道處遇。各申請人則根據案情爭論說有這個風險。\nB 下級法庭的判決\nB.1 原訟法庭\n8.\n張舉能法官席前有五名申請人。現時本院裏的四名申請人之外還有另一名申請人（稱為MA），他是經核實難民。張法官在他的判案書\n[22]\n一開始便說出法庭須裁定的爭議點的大概：\n“1. 此五宗司法覆核申請是合併聆訊，有關四名經核實難民和一名獲確立酷刑聲請人。五宗申請都有一些共同爭議點。概略說來，主要的爭議點是在甚麼情況下（如果有這些情況），已在香港滯留了一段長時間，且在緊接着的可見將來又沒有甚麼機會移居海外（或離開香港）的一名或多名經核實難民或獲確立酷刑聲請人，可以獲准在等待移居海外（或離港）期間，在香港接受可找到的僱傭工作。”\n9.\n各方也曾在張法官席前爭論在上文概述的各自的立場（還有其他論點，但本庭現時已無須處理）。張法官裁定因為《人權條例》\n第11條\n，各申請人不能倚賴《人權法案》裏的任何權利。基於這個理由，張法官認為不必就不人道處遇作出任何判決，但他在判案書第79段表達下列附帶意見：\n“79. 本席接受原則上，就一名經核實難民或獲確立酷刑聲請人而言，長時間禁止他接受僱傭工作（即使可以找到這些工作），在緊接着的可見將來此人又沒有甚麼機會移居海外或離港，這樣，視乎情況而定，可以構成不人道或有辱人格的待遇。”\n他在判案書第84段補充：\n“84. 鑑於本席的意見只屬附帶意見，在此階段本席要補充的只是以下的意見：就個別情況而言，如果在醫學上證明在描述的情況下，長時間禁止接受僱傭工作已經導致或在重要程度上促成該經核實難民或獲確立酷刑聲請人患上嚴重的精神病，例如重度抑鬰，那麼，說該人已經受到，或如果不放寬對工作的禁制，就會受到不人道或有辱人格的待遇的說法便強而有力。不過，要達致任何這樣的結論，該人的精神狀況和必要的因果關係必須有醫學或其他相關證據清楚證明。況且，在這種情況下，適當的濟助不一定是放寬對工作的禁制，而是完全取決於證據顯示該人需要甚麼形式的治療和預測病情發展是怎樣。”\n10.\n張法官也裁定不接受各申請人基於《文化公約》\n第6條\n和《基本法》\n第33條\n所作的陳詞及關於普通法包含他們所說的權利的論點。然而，張法官重申他的看法，就是處長在出入境事務方面的酌情權雖然覆蓋範圍廣泛，但不是沒有限制的。傳統的司法覆核原則仍然適用\n[23]\n。就MA和GA兩人而言，張法官認為處長沒有適當考慮他們的個人情況，也沒有真正以無成見之心處理他們的要求。張法官寫道\n[24]\n︰“幾乎沒有考慮[該兩名申請人的]個人情況”。基於這個理由，他撤銷處長拒絕給予該兩名申請人工作准許的決定，並裁定處長須重新考慮他們的工作准許要求。\n11.\n其他的司法覆核申請被駁回。\nB.2 上訴法庭\n12.\n所有申請人（包括MA）都向上訴法庭上訴\n[25]\n。雖然MA和GA在某程度上勝訴，因為關於他們的決定被法庭撤銷了，但他們和其他申請人都想爭取他們聲稱享有的憲法保障的工作權。上訴法庭在2012年11月27日頒下判案書\n[26]\n，駁回所有上訴。上訴法庭和張舉能法官一樣，裁定《人權法案》\n第14條\n、《文化公約》\n第6條\n和《基本法》\n第33條\n對各申請人沒有幫助。上訴法庭引用《人權條例》\n第11條\n及英國政府就《權利公約》和《文化公約》訂立的兩項保留條文\n[27]\n。在此情況下，上訴法庭沒有處理這些條文包含的任何工作權的內容和範圍。上訴法庭也不接納普通法裏有工作權。\n13.\n有關上訴法庭的判案書，本席還應提及各申請人提出的不人道處遇這點。上訴法庭的看法和張舉能法官的看法一樣，即是《人權法案》\n第3條\n不適用（由於《人權條例》\n第11條\n），但上訴法庭仍以附帶意見的形式討論了不人道處遇這個爭議點。答辯人陳詞說本案的案情無論如何未達到不人道處遇的程度，而霍兆剛法官則在第76段這樣回應︰\n“76.就此，法庭必須指出《權利公約》的敍文1和2強調須承認人的尊嚴，因此，也必須指出保障人的尊嚴是《權利公約》其中一個根本目的。而且，殘忍、不人道或有辱人格的待遇和人的尊嚴所指的意思不止是貧困或完全精神崩潰。本席認為，無法進行經濟活動或許真的可以引致殘忍、不人道或有辱人格的待遇。”\nC 在本院提出的爭議點\n14.\n這幾宗上訴裏，各方的案由述要中包含的和各方爭論的，並須由本院裁定的爭議點如下︰\n(1) 對這幾宗上訴的結果有關鍵性影響的問題是：是否如各申請人所說有一項受憲法保障的工作權？據說因為下列其中一個或多個因素，此權利是存在的︰\n(a) 《人權法案》\n第14條\n︰私生活。\n(b) 《文化公約》\n第6條\n。\n(c) 《基本法》\n第33條\n。\n(2) 然而，探討這些條文所載的權利有甚麼內容之前，尤其是探討有沒有工作權之前，重要的是首先要決定這些條文根本是否適用。這就必須考慮先前提到的《人權條例》\n第11條\n和兩項保留條文。\n(3) 撇開這些條文，即使這些條文不適用，普通法裏是否有工作權？\n(4) 最後，如果有不人道處遇，應如何運用處長的酌情權？\n15.\n本席會依下列次序處理這些爭議點︰\n(1) 《人權法案》\n第14條\n。\n(2) 《文化公約》\n第6條\n。\n(3) 《基本法》\n第33條\n。\n(4) 普通法裏的工作權。\n(5) 相稱性。\n(6) 處長的酌情權和不人道處遇。\n16.\n處理這些爭議點之前應先說明兩事︰\n(1) MA在原訟法庭和在上訴法庭是申請人，但他無意繼續上訴至本院\n[28]\n。\n(2) 如先前所述，上訴法庭作出判決後，三名申請人獲處長給予工作准許。其餘一名申請人，即JA，則正在監獄服刑。我等得知他最早的出獄日期是2016年7月。\n因此，可以說這幾宗上訴只屬學術性質，因為即使上訴得直，申請人之中有三名不需任何使他們可以工作的濟助，而餘下一名申請人則無論如何也不能工作。不過，沒有任何一方表示本院不應聆訊這幾宗上訴，而就本席而言，本席認為本案涉及重要的爭議點，為了公眾利益應該審理這些爭議點\n[29]\n。\nD 《人權法案》\n第14條\n17.\n就這個爭議點須裁定的事情是︰\n(1)\n第14條\n是否適用︰《人權條例》\n第11條\n和英國的保留條文。\n(2)\n第14條\n和工作權。\n(3) 不人道處遇。\nD.1\n第14條\n是否適用︰《人權條例》\n第11條\n和英國的保留條文\n18.\n第14條\n的措詞如下︰\n“對私生活、家庭、住宅、通信、名譽及信用的保護\n(1) 任何人之私生活、家庭、住宅或通信，不得無理或非法侵擾，其名譽及信用，亦不得非法破壞。\n(2) 對於此種侵擾或破壞，人人有受法律保護之權利。”\n19.\n無論\n第14條\n的範圍是大是小，無論它有何作用，首先必須裁定各申請人是否可以倚賴它。如果各申請人不能享有《人權法案》\n第14條\n包含的權利，就無須研究它包含的權利有甚麼內容，尤其無須研究針對任何人的私生活受無理或非法侵擾而給予的保護是否包括工作權。答辯人倚賴《人權條例》\n第11條\n，力言\n第14條\n的權利，無論其範圍大小，在本案都不適用。\n20.\n第11條\n規定︰\n“出入境法例\n對於無權進入及停留於香港的人來說，本條例不影響管限這些人進入、逗留於及離開香港的出入境法例，亦不影響這些法例的適用。”\n21.\n假如\n第11條\n的作用是如答辯人所說，各申請人便不能倚賴《人權法案》\n第14條\n。目前我等可見，各方在本院爭論的焦點是“逗留於”這幾個字的含義。\n22.\n在\nUbamaka v Secretary for Security\n[30]\n案中，本院頗詳細地考慮過\n[31]\n《人權條例》\n第11條\n。該案裏，有關當局根據香港法例\n第115章\n《入境條例》\n第20(1)(a)條\n[32]\n作出針對申請人的遞解離境令。申請人的代表律師爭論說申請人可以根據《人權法案》\n第3\n和\n11(6)條\n免被遣送到尼日利亞。處長引用《人權條例》\n第11條\n，力稱《人權法案》\n第3\n和\n11(6)條\n不影響\n《入境條例》\n第20(1)(a)條\n賦予的遞解離境權力。申請人爭論說\n第11條\n違憲，因為它要不是違反《基本法》\n第39(1)條\n[33]\n，就是抵觸國際法（申請人尤其倚賴《1969年維也納條約法公約》\n第19(c)條\n）\n[34]\n。本院裁定\n第11條\n合憲\n[35]\n。\n23.\n如有案件涉及的問題是《人權條例》\n第11條\n的作用是否阻止有關人士倚賴《人權法案》保障的權利，處理這類案件的正確方法載於\nUbamaka\n案，應在此複述如下：\n“46. 有沒有在任何案件裏，\n第11條\n的作用是阻止有關人士倚賴《人權法案》保障的某項權利，這可以是法律問題和釋義問題，也可以是事實問題。\n(a) 如果政府[本案的答辯人]主張\n第11條\n有上述作用，政府便有責任使本院信納事實上和法律上試圖倚賴有關權利的人是無權進入及停留於香港的人。這是重要的，因為\n第11條\n不適用於有居留權的香港永久居民，也不適用於法律上有權在香港的香港居民和其他人。\n(b) 政府亦須使本院信納，政府要求的是合法地針對該人履行或行使管限進入、逗留於及離開香港的出入境法例產生的職責或權力，而該等職責或權力根據該案的案情是恰當地適用的。這點是必須的，因為如果要求行使或履行的是其他的權力或職責，\n第11條\n便不適用。\n(c) 聲稱需要保護的人[例如本案的各申請人]須說明他援用哪些《人權法案》權利，並須提出證據支持他的申訴，即假若政府履行有關職責或行使有關權力便會侵犯該等權利。如果行使\n第11條\n賦予的權力沒有牽涉任何受保障的權利，便顯然不會引起關於憲法保障的問題。\n(d) 如果本院信納正在審理的案件裏，入境法例的有關條文的運作的確牽涉該等權利，跟着便須考慮有可能被侵犯的權利 —— 本案裏，有關權利是《人權法案》\n第3條\n包含的權利 —— 可否被\n第11條\n排除。\n(e) 最後的問題是本院鑑於將在下文檢驗的《人權條例》\n第5條\n而提出的。今次聆訊之前，爭論是在這個基礎上進行的，即必須把\n第11條\n解釋為具有上訴人強調的狹窄的含義，或必須把\n第11條\n解釋為答辯人力主的可以凌駕《人權法案》包含的\n全部\n權利。\n第11條\n是否應被解釋為凌駕《人權法案》裏某些，但不是全部權利？這個問題在聆訊裏成為主要問題。尤其須關注的是\n第11條\n能否排除《人權法案》\n第3條\n提供的憲法保障。本席會在G部講述此論題。”\n24.\n本席處理不人道處遇時將會詳細討論\n[36]\n上面引述的第46(d)、(e)段裏提及的《人權法案》\n第3條\n在本案有何意義，所以本席暫時把這方面的事情擱在一旁。至於其他元素，各方沒有爭議各申請人無權進入或停留於香港。各申請人當然倚賴《人權法案》\n第14條\n所載關於私生活的權利。\n25.\n答辯人力言他行使酌情權不給予工作准許，就是在行使\n《入境條例》\n裏管限各申請人“逗留於……香港”的權力。各申請人陳詞反對此說。\n《入境條例》\n裏授權處長行使此酌情權的條文據說包括第11\n[37]\n和37ZX條\n[38]\n。\n26.\nFordham御用大律師說（這一點是正確的）就\n第11條\n而言，必須證明倚賴的出入境法例是管限有關人士“進入、逗留於及離開香港”。然而，據他所說，本案裏，\n《入境條例》\n賦予處長的給予（或拒絕給予）工作准許的酌情權不是在這幾個字的範圍內。御用大律師Pannick勳爵爭論說有關的出入境法例很明顯是管限有關人士“逗留於”香港。這也是張舉能法官和上訴法庭得出的結論。\n27.\n如何裁定各方所持的不同立場取決於《人權條例》\n第11條\n裏“管限這些人進入、逗留於及離開香港的出入境法例”這句話，尤其是“逗留於”這三個字的正確解釋是甚麼。\n28.\n如同所有關於如何解釋法例的案件一樣，解釋的起點是考慮須解釋的條文的上文下理和目的。\nVallejos and Domingo v Commissioner of Registration\n[39]\n案裏，本院強調這是解釋法例（和憲法）的方法\n[40]\n。\n29.\n依本席之見，下列各點相當清晰地列出《人權法例》\n第11條\n的上文下理和目的︰\n(1)\n第11條\n本身清楚表示它處理的是有關香港的入境、逗留和離境的出入境管制。《基本法》\n第154(2)條\n反映了這一點︰\n“對世界各國或各地區的人入境、逗留和離境，香港特別行政區政府可實行出入境管制。”\n第11條\n採用了相同的英文措詞“entry into, stay in and departure from Hong Kong” （進入、逗留於及離開香港）。\n(2)\n第11條\n的立法原意是把上述出入境管制的三個部分排除於《人權法案》的適用範圍之外\n[41]\n。就此參考英國政府在1976年5月20日確認《權利公約》時訂立的保留條文是有用的\n[42]\n。該保留條文的措詞如下︰\n“聯合王國政府保留權利，不時按其需要，繼續實施有關管制進入聯合王國、逗留於及離開聯合王國的出入境法例。因此，聯合王國政府接納公約\n第12(4)條\n及其他條文，惟聯合王國對當時無權進入及在聯合王國停留人士法例規定，必須得以實施。聯合王國亦就其每一屬土，保留同樣的權利。”\n在國際法方面\n[43]\n，該保留條文說明英國政府在甚麼條件下簽訂《權利公約》︰只有在不抵觸該保留條文的情況下《權利公約》才適用。英國政府在1976年接受《權利公約》的條款時，也代表它當時的一眾屬土（包括香港）接受；所以，就香港而言，一定要在不抵觸該保留條文的情況下，《權利公約》才適用。再者，無論英國政府本身因何理由訂立該保留條文\n[44]\n，就香港而言，該保留條文的重要性是使香港政府能夠處理出入境事宜，特別是制定“政府認為有必要制定用來規管無權進入及停留於香港的人的入境、逗留及離境事宜”\n[45]\n的法例。《人權條例》就是在這樣的背景下制定的\n[46]\n。1997年7月1日恢復行使主權後，《基本法》生效，\n第39(1)條\n[47]\n說明《權利公約》裏“適用於”香港的有關規定才有效；因此，《權利公約》只是在不抵觸該保留條文的情況下才適用於香港。《人權條例》\n第11條\n反映這個規限。事實上，\n第11條\n的措詞跟隨該保留條文的措詞。\n第11條\n和該保留條文的有關字眼都是“進入、逗留於及離開香港”。關於\n第11條\n和該保留條文的充分討論，只需查閱\nUbamaka\n案的判決\n[48]\n已十分足夠。\n(3) 《基本法》\n第154(2)條\n和該保留條文都是以概括的字句寫出，一般認為它們的原意必定是為了可以有效執行出入境管制。這個看法絕非新穎或奇特，而是在香港以外的司法管轄區也持有的。\nUbamaka\n案裏\n[49]\n提及歐洲人權法院在\nChahal v United Kingdom\n案的判案書的一段\n[50]\n。該段說（《歐洲人權公約》的）締約國“根據早已確立的國際法，在不抵觸它們的條約責任，包括該公約的條約責任的情況下，有權控制關於外國人的\n入境、居留和被驅逐\n的事宜。”（斜體後加以示強調）。以斜體顯示的字強調出入境管制的廣闊性質：它規管有關人士在任何特定地方的逗留的每一階段，由入境，在該地逗留的全程，直至離境。\n30.\n本席謹記上文所述的背境和各有關條文的目的，然後細看\n第11條\n的用字，以確定立法機關試圖藉\n第11條\n排除於《人權法案》之外的出入境法例的範圍有多大。本席認為\n第11條\n的立法原意顯然是在不抵觸《人權條例》\n第5條\n[51]\n的情況下，把處理某人在香港的逗留的每一階段（如前所述，由入境、在香港逗留的全程，直至離境）的出入境法例排除於《人權法案》之外。這當然首先包括應否准許該人身在香港，為何目的准許該人入境及逗留期限的長短。從出入境管制的角度視之，一般必定涵蓋該人可獲准在香港進行的活動，而本席認為必然包括應否准許該人工作這方面。應否准許一個無權進入及停留於香港的人在其留港期間工作，可以清楚想像得到這一點明顯是出入境管制的事情。尤其是如香港這樣，對許多人都有頗大經濟吸引力的地方，顯而易見是需要實施出入境管制及控制可能想在這裏工作的人的數量或類別。各申請人沒有真的提出另外的說法。\n31.\n本席認為各申請人提出的論點未能動搖上述的看法。各申請人的主要論點等於說，就法律條文的釋義而言，\n第11條\n只是關於處理進入香港（“進入”）、在香港停留的權利（“這是對‘逗留於’三字的解釋）和離開香港（“離開”）的出入境法例。換言之，\n第11條\n裏“管限”這個詞有限定的意思，而據各申請人所說，它的意思只是“決定何人有權”或“處理關於……的權利”，所以\n第11條\n不能涵蓋涉及有關人士，當他們身在香港時所進行的活動或享有的權利的法例。因此，就本案的情況而言，\n第11條\n並不涵蓋賦予處長酌情權以決定是否給予像各申請人那樣的已經身在香港的人工作准許的任何法例。Fordham御用大律師同意，如果有禁止接受僱傭工作的入境條件，該項禁止是在\n第11條\n的範圍內，因為它本來就是關於“進入”香港的權利。不過，他說上述情況和本案不同，因為本案裏，處長不是行使權力以決定應否准許各申請人或他們任何一人進入香港，及如准許他們進入，則在甚麼條件下准許。各申請人已經身在香港，處長只是行使酌情權以決定是否准許他們工作。故此，禁止他們工作並不關於他們進入香港，也不關於他們在香港停留的權利（如有的話），更（顯然）不關於他們離開香港的任何問題；處長的決定根本和這幾方面無關。有關這一點，Fordham御用大律師提及\n《入境條例》\n第37ZX條\n[52]\n︰雖然處長可以准許一名獲確立酷刑聲請人接受僱傭工作，但此類准許不等同受\n《入境條例》\n第11條\n規管的逗留期限或其他逗留條件，也並非屬於\n第13條\n所述的批准留在香港的權限。簡言之，是否准許工作和是否准許某人進入或留在香港的問題無關。\n32.\nFordham御用大律師提出另外兩個論點以支持他對\n第11條\n的這個解釋︰\n(1) 他說\n《入境條例》\n[原文如此]\n第14條\n[53]\n與如何解釋\n第11條\n是相關的。他的論點的大意是這樣︰立法原意不會是藉\n第11條\n把出入境法例免除於《人權法案》的適用範圍之外，因為這正是\n第14條\n所做的（而且這樣做的期間特意限為一年）。若非如此，這個論點的下一步說，如果\n第11\n和\n14條\n都是把\n《入境條例》\n的條文免除於《人權法案》的適用範圍之外，便會有重疊情況。這些法律條文的立法原意不會是這樣的。\n(2) 無論如何，立法原意不會是使所有無權進入及停留於香港的人（像各申請人那樣的人）都不能享有載於《人權法案》的一切權利。除不人道處遇（《人權法案》\n第3條\n）\n[54]\n之外，他還舉例說明如果受《人權法案》保障的權利是如各申請人那樣的人不能享用的，便似乎是違背良知和不公正。各申請人的案由述要說如果\n第11條\n有答辯人說它有的作用，那麼，如\n《入境條例》\n第38AA條\n[55]\n那樣的施加刑事責任的條文在應用時便可能會有追溯力（比照《人權法案》\n第12條\n）。在我等席前，Fordham御用大律師舉出更多例子︰他反問，如果施加於某個進入香港的人的入境條件是他只可居於香港某一處而要與他的家人分開；或施加於某人的入境條件是禁止他結婚，那便怎樣？鑑於此等情況，對於那些無權進入及停留於香港的人，當他們已經身在香港的時候，\n第11條\n的立法原意不會是不准他們享有基本和主要人權的。這是以另一種形式陳詞說應給予\n第11條\n“對人權親善”的解釋，而不是剝奪人權的解釋。\n33.\n各申請人主張的對\n第11條\n的有關用字的解釋同樣適用於英國的保留條文的“entry into, stay in and departure from”（進入、逗留於及離開）這幾個字。他陳詞說就英國而言，該保留條文的原意只是要處理想進入和留在英國的人引起的問題，而不是要影響實際上已經身在英國的人的人權的可運用程度和適用範圍。他引用兩份文件以支持他的說法。2006年11月1日，聯合國人權事務委員會考慮一份由英國政府撰寫的報告，內容是關於《權利公約》保障的人權在處理懷疑恐怖分子的拘留事宜的英國法例的影響下的狀況\n[56]\n。2008年，聯合國大會的人權理事會公布該理事會的任意拘留問題工作組通過的意見\n[57]\n。內容包括關於英國當局對來自索馬里的一名尋求庇護者作出的據稱是任意拘留的意見。Fordham御用大律師說兩份文件裏英國政府都沒有引用該保留條文替任何據稱在有關法例下侵犯人權的行為作辯解。據Fordham御用大律師所說，對那些和各申請人境況相同的人，英國沒有拒絕給予他們權利，這個處理方法也可見於英國政府就《難民公約》訂立的保留條文。如前所述\n[58]\n，《難民公約》\n第17條\n規定應准許難民工作，但同時規定各締約國可設置時間限制，最長是居留三年，待這個時限屆滿，難民才可接受僱傭工作，藉此保護國內勞動力市場。英國政府的保留條文把該時間限制延長至四年。各申請人爭論說這顯示英國對保留條文的一般處理方法，並說英國明確地區分某人得以留在英國的權利和當某人實際上已身在英國時，該人享有的權利。\n34.\n各申請人採用來解釋\n第11條\n的方法的主要謬誤在於沒有足夠重視\n第11條\n的上文下理和目的。本席已經講述過看來顯然是有關係的上文下理和目的，並說明\n第11條\n的背景和來源可作支持。當上文下理涉及出入境管制事宜，卻僅僅把有關事宜限於入境權、（如各申請人所說）逗留於某地的權利和離境，這看來極不自然。相當明顯，出入境管制必然延伸至已經進入香港，及不管為了甚麼理由留在香港的人的活動。因此，本席不同意\n第11條\n裏“管限”兩字的意思，如各申請人所說，只是“決定何人有權”或“處理關於……的權利”。很簡單，如果這是\n第11條\n的立法原意，該條文便會如此說明。本席同意上訴法庭的看法\n[59]\n，即假若各申請人的論點正確，\n第11條\n便會以較清楚和較簡潔的字句表達。\n35.\n本席同意，對於“管限這些人進入、逗留於及離開香港的出入境法例”這句話的含義的確切範圍，也許可能存在爭議，而確切範圍只能在逐案審視的基礎上才可以確定。不過，本案裏，處長擁有的，用來決定應否准許處於各申請人那樣的境況的人工作的酌情權，顯然是在出入境管制的範圍內。較準確地說，賦予處長這種酌情權的出入境法例，的確管限像各申請人那樣的人逗留於香港。Fordham御用大律師指出，作為入境條件的禁止工作，和當有關人士已經身在香港時禁止他工作（禁止的形式可以是，例如，決定不准接受僱傭工作），這兩者之間有着細微分別，但本席認為沒有實質分別。兩者都是屬於有關進入、逗留於和離開香港的出入境管制的範圍內。\n36.\n關於\n第37ZX條\n的陳詞也並非貼題。本席同意，無論給予獲確立酷刑聲請人任何工作准許，該人都不會根據\n第37ZX條\n得到任何權利留在香港，但這一點本身不會對各申請人的基本陳詞有任何幫助。如果\n第37ZX條\n有任何作用，可以說它是支持相反的立場，即是該項賦予處長權力的條文是管限某人逗留於香港的出入境法例的另一個例子。\n37.\n將\n第11條\n和《人權條例》\n第14條\n比較，也不會有多大幫助。誠然，\n第14條\n和\n第11條\n之間有某些重叠之處，因為兩者都把\n《入境條例》\n某些條文排除於《人權條例》其餘部分的適用範圍之外，但兩者之間是有不同的：\n(1)\n第14條\n把\n《入境條例》\n和根據該條例作出的所有作為和不作為都排除於《人權條例》其餘部分的適用範圍之外，\n第11條\n的適用範圍卻狹窄得多。\n第11條\n只是對“管限這些人進入、逗留於及離開香港的出入境法例”才適用。\n(2) 如上訴法庭指出的\n[60]\n，\n《入境條例》\n裏有些條文是完全和\n第11條\n無關的，例如\n第2AG\n和\n37C條\n所述的刑事罪行、關於沒收船隻的條文（\n第37E條\n）和關於就處長發出的遣送離境令提出上訴的條文（\n第53A條\n）。\n(3)\n第14條\n涵蓋多條條例，不只\n《入境條例》\n，其有效期是有限的，\n第11條\n則沒有時間限制。\n38.\n本席補充一點，就算用各申請人主張的狹窄含義來解釋“管限這些人進入、逗留於及離開香港的出入境法例”這些字句，同樣會產生與\n第14條\n重叠這個問題。\n39.\n接着下來，本席處理這個論點，即立法原意不會是要剝奪如各申請人那樣獲准在香港的人的人權。Fordham御用大律師舉出若干例子\n[61]\n。使用例子有時是有助於鋪陳某個論點的，不過，如使用的是一些和本案的事實情況沒有關係，流於極端和假設的例子，依本席之見，是沒有甚麼幫助的。本案裏要審查的基本事情實際上是這個問題：被投訴的有關作為或不作為是否源自管限進入、逗留於及離開香港的出入境法例？如本席先前所說，這些字句的準確範圍應在逐案審查的基礎上決定。本案裏，基於已經講述的理由，賦予處長酌情權決定是否准許各申請人在香港工作的法例，清清楚楚是在這些字句的範圍內。\n40.\n至於各申請人關於英國的保留條文\n[62]\n及聯合國的人權事務委員會和人權理事會的考慮和意見的陳詞，也對本案的聆訊沒有甚麼幫助。英國政府為何不引用該保留條文支持其立場，英國政府自有其理由，而這些文件沒有任何地方顯示有討論過我等現正研究的論點。就人權事務委員會的考慮而言，上訴法庭用英國的《人權法令》（Human Rights Act）來解釋為何英國政府不倚賴該保留條文\n[63]\n。 考慮英國政府就《難民公約》訂立的保留條文\n[64]\n對本案的用處也同樣有限。\n41.\n無論英國採取甚麼立場，要解釋\n第11條\n就一定要顧及它的上文下理和目的。在這方面，重要的是查看香港的情況\n[65]\n，因為是香港的環境和情況，而不是其他地方的情況，才是有關聯的，無論那些情況有甚麼歷史淵源亦如是。關於這一點，本席再引用\nUbamaka\n案的判決。\nD.2\n第14條\n和工作權\n42.\n基於D.1部闡述的理由，因為有《人權條例》\n第11條\n，各申請人便不能倚賴《人權法案》\n第14條\n。既然\n第14條\n不適用，就不必亦不宜探究其含義和範圍了。\nD.3 不人道處遇\n43.\n本席在本案就\n第11條\n得出上述結論，可並不表示處長有不受限制的酌情權，答辯人也並非如此主張。本席已經簡略提及這一點\n[66]\n。此外，鑑於\nUbamaka\n案的判決\n[67]\n，對\n第11條\n的解讀須符合《人權條例》\n第5(2)(c)條\n[68]\n，所以不可減免履行《人權法案》\n第3條\n。\n第3條\n的措詞如下：\n“\n第三條\n不得施以酷刑或不人道處遇亦不得未經同意而施以試驗\n任何人不得施以酷刑，或予以殘忍、不人道或侮辱之處遇或懲罰。非經本人自願同意，尤不得對任何人作醫學或科學試驗。”\n44.\n第3條\n保障的不得被施以酷刑，或受到殘忍、不人道或有辱人格的待遇或懲罰的權利是絕對權利。\nUbamaka\n案裏\n[69]\n終審法院常任法官李義說：\n“114. 本席認為\n第5條\n的清晰字句確立了《人權法案》\n第3條\n保障的不得被施以酷刑，或受到殘忍、不人道或有辱人格的待遇或懲罰的權利是不可減損的權利。斯特拉斯堡法院和上議院關於《歐洲人權公約》裏非常相似的條文的極具說服力的法學理論更清楚說明《人權法案》\n第3條\n的權利不只是不可減損，而是絕對的權利。該等法學理論顯示針對酷刑和殘忍、不人道或有辱人格的待遇或懲罰的保障的絕對性質是國際認可的標準，或正如Steyn勳爵所說，是‘普世的最低標準’”。\n45.\n就本案的情況而言，本席同意各申請人的陳詞，即如果可以證明禁止工作的後果有不人道處遇（我等無須考慮酷刑、殘忍或任何形式的懲罰），或可以證明禁止工作的後果是有關人士會面對重大和迫切的風險會受到不人道處遇，處長運用酌情權作出的決定便必須是對各申請人或如各申請人那樣的人有利的。簡言之，如果可以證明有不人道處遇，或有重大和迫切風險會引致不人道處遇，處長便必須運用酌情權給予工作准許。本席用強制的方式表達，因為\n第3條\n保障的權利是絕對權利。\n46.\n然而，必須處理以下問題：在任何特定情況下，甚麼是不人道處遇？誰人承擔舉證責任證明有上述情況？及必須證明有上述情況的可能性達至甚麼程度？\n47.\n關於甚麼構成不人道處遇，本院在\nUbamaka\n案的判決亦可提供甚多指引\n[70]\n。該案的案情是處長決定發出針對該案申請人的遞解離境令。該案申請人聲稱，如果他回到尼日利亞，便有風險，可能會被檢控干犯一項和他在香港被定罪的罪行相似的罪行，及會因干犯該罪行而被懲罰。他說這就等同殘忍、不人道或有辱人格的待遇或懲罰。我等現時當然只須審理不人道處遇，但本席認為可以採用相同的處理方法。\n48.\n如\nUbamaka\n案強調的，必須證明有“最低程度的嚴重性”。該案提及英國上議院在\nR (Limbuela) v Secretary of State for the Home Department\n案的判決”\n[71]\n。以下引述終審法院常任法官李義的判案書裏的段落\n[72]\n， 雖然是關於處理殘忍、不人道或有辱人格的待遇或懲罰，但也提供了不人道處遇的基本和可行的定義：\n“173.\nR (Limbuela) v Secretary of State for the Home Department\n案裏，Hope動爵（Lord Hope of Craighead）引述斯持拉斯堡法院的判決以說明須如何才符合‘最低程度的嚴重性’。他指出該最低程度一般涉及實際身體傷害或強烈的肉體或精神痛苦，而且如何評定是否達至該程度歸根結底是關乎判斷的問題：\n……歐洲法院一直以來都認為如果惡劣待遇要歸入‘不人道或有辱人格之待遇或懲罰’這個描述的範圍，便必須達到最低程度的嚴重性：\nIreland v United Kingdom\n案\n(1978) 2 EHRR 25\n，80，第167段；\nＡ v United Kingdom\n案\n(1998) 27 EHRR 611\n，629，第20段；\nV v United Kingdom\n案\n(1999) 30 EHRR 121\n，175，第71段。在\nPretty v United Kingdom\n案\n35 EHRR 1\n，33，第52段，法院說：\n‘至於甚麼種類的“待遇”才歸入公約\n第3條\n的範圍內，法院的案例說明有關的“惡劣待遇”須達到最低程度的嚴重性，並涉及實際身體傷害或強烈的肉體或精神痛苦。如果待遇是羞辱某人或損害某人的人格，流露出不尊重，或貶低該人的尊嚴，或者待遇是引起恐懼、悲痛或自卑感，足以摧毀該人精神上和肉體上的抵抗，便可以稱為有辱人格，也歸入\n第3條\n禁止的範圍。由於自然發生的疾病，不論是身體方面或精神方面的疾病，而產生的痛苦，也可以是在\n第3條\n的範圍內，只要這些痛苦是，或有風險這些痛苦會，由於有關人士所受待遇——無論這些待遇是因拘留、驅逐出境或其他措施而施加——而加深加劇，及有關當局是要為這些人所受待遇負責的，有關痛苦便在\n第3條\n的範圍內。’\n亦有評論說對上述最低程度嚴重性的評定是相對性的，因為它是視乎案件所有情況而定，例如爭議中的待遇或懲罰的性質，和施加該待遇或懲罰的來龍去脈。事實上無可能設計一個簡單的定義就可以盡攬觸及\n第3條\n的一切與人有關的情況。……因此，必須運用判斷力以裁定在任何特定情況裏，有關的待遇或懲罰是否已達到必要的嚴重性。在這方面，法庭可以衡量，考慮過所有事實後，是否已符合這個驗證標準。”\n49.\n本席認為當考慮本案裏甚麼構成不人道處遇時，重要的是留意下列不人道處遇的幾方面︰\n(1) 上文引述的段落裏提及的身體傷害和肉體痛苦或許是較適合用來描述酷刑或懲罰，而非不人道處遇。\n(2) 然而，有關待遇仍必須達到最低程度的嚴重性才可以說是構成不人道處遇。\nLimbuela\n案裏\n[73]\n，Bingham勳爵（Lord Bingham of Cornhill）說，“如果待遇是使某人得不到對任何人來說都是最基本的必需東西，而且有嚴重有害的效果，這樣的待遇就是不人道和有辱人格”。\n(3) 本席贊同如此描述，但當然，就如大多數的概括原則那樣，在任何特定情況裏無可避免必須檢視有關的事實和情況才可得出結論。就不人道處遇而言，必須查看涉及申請人的獨特事實和情況。\nLimbuela\n案裏提及的因素，有年齡、性別、精神和身體方面的健康和狀況，以及任何提供支援的設施和支援的來源等\n[74]\n。\n(4) 可以這樣說，須審查有關的事實和情況，這就表示了根本沒有精確的公式可據之以裁定在任何特定情況下是否已達到最低程度的嚴重性。可以做的就只有查看有甚麽相關因素需要考慮，雖然本席承認很多情況裏都有共同的因素。然而，整體情況是重要的。\nLimbuela\n案裏，有關的情況是尋求庇護者聲稱窮困，他們沒有任何真正的支援，甚至不能保證是否每晚都有留宿的地方。本案的情況和該案不同，本案是關於有幾名人士成為受保護人士後仍長期滯留香港。\n(5) Fordham御用大律師懇請我等說明，處於本案各申請人所處境況的人士，有下列特徵者，如不獲准工作，就必然自動當作符合不人道處遇的驗證標準；而有關特徵是身為經核實難民或獲確立酷刑聲稱人、靠政府救濟過活、僅堪糊口、無處可去、不能期望在可見的將來能離開香港。這番陳詞的問題是，它不承認要制定一條精確的關於事實的公式來在每宗案件裏確定有不人道處遇，即使不是不可能，也是困難重重的。本席重申，正確的處理方法是審查任何特定案件和任何特定個人的有關事實、情況和背境。\n(6) 這個方法是符合原則的。\nLimbuela\n案裏有幾段正正表明沒有可能制定一個適用於所有情況，關乎事實的簡單驗證標準\n[75]\n。大多數情況裏須運用判斷力，而每宗案件須根據本身的案情作判決\n[76]\n。\n50.\n證明有不人道處遇的舉證責任由指稱有不人道處遇的一方承擔，就本案而言，此舉證責任由各申請人承擔。本席已經提及甚麼構成不人道處遇及須要證明最低程度的嚴重性。\n51.\n不人道處遇的可能性必須證明至甚麼程度？\nUbamaka\n案裏，這是以“真正和重大的風險”\n[77]\n來表達，意思是申請人必須提出證據，證明有真正的風險會受到不人道處遇\n[78]\n。\nLimbuela\n案裏，上議院所有成員都提及迫切性驗證標準，意思是有迫切可能申請人會受到不人道處遇\n[79]\n。\n52.\n把上述標準運用於本案，如上文所述\n[80]\n，各申請人的舉證責任可用下述方式表達︰是否可以證明如果處長不給他們工作准許，他們便有重大和迫切的風險會受到不人道處遇？\n53.\n雙方都請我等根據席前的案情裁定是否可以說存在不人道處遇。就本席而言，本席無意作出此裁定，理由如下︰\n(1) 如先前所述\n[81]\n，雖然張舉能法官和上訴法庭都略為提到，就案情而言，各申請人或能證明有不人道處遇，但法庭沒有確實裁定有或沒有不人道處遇。這是因為原訟法庭和上訴法庭都認為，由於有《人權條例》\n第11條\n，所以《人權法案》\n第3條\n無論如何也不適用\n[82]\n。既然沒有此等裁定，本院絕不應輕易自行作出事實裁定。\n(2) 當雙方確實有可能就案情有爭拗，本院更不應輕易自行作出事實裁定。舉一個例子，各申請人已經呈交證據，描述他們的精神狀況及說明為何他們不能工作是引致如此狀況的重要原因，而答辯人不接受此說。\n(3) 如有必要，本席會傾向於把本案移交另一個法庭以裁定這個爭議點（是否存在不人道處遇）。不過，鑑於各申請人目前的情況\n[83]\n，這樣做只會淪為學術討論，雙方在聆訊時亦同意這一點。\n54.\n話雖如此，而本席亦認為須要跨過一個高的門檻\n[84]\n，但本席傾向贊同張舉能法官和上訴法庭的看法，即是如果各申請人不獲准工作，可以想像到他們的處境可構成不人道處遇。自從他們成為受保護人士以來，全部都長期留在香港（6至12年）。如果考慮到他們得到此身分之前的時間，時間就更長了。先前已說過各申請人已經呈交證據陳述他們的精神狀況，他們提到失去尊嚴，感到絕望和走投無路。然而，為了已經闡述的理由，本席沒有必要解決這些爭議點。\nE 《文化公約》\n第6條\nE.1 該公約的有關條文\n55.\n就本案而言，該公約的有關條文如下：\n“\n第2條\n1. 本公約締約國承允盡其資源能力所及，各自並借國際協助與合作，特別在經濟與技術方面之協助與合作，採取種種步驟，務期以所有適當方法，尤其包括通過立法措施，逐漸使本公約所確認之各種權利完全實現。\n2. 本公約締約國承允保證人人行使本公約所載之各種權利，不因種族、膚色、性別、語言、宗教、政見或其他主張、民族本源或社會階級、財產、出生或其他身分等等而受歧視。\n3. 發展中國家在適當顧及人權及國民經濟之情形下，得決定保證非本國國民享受本公約所確認經濟權利之程度。\n.\n...\n...\n.\n第4條\n本公約締約國確認人民享受國家遵照本公約規定所賦予之權利時，國家對此類權利僅得加以法律明定之限制，又其所定限制以與此類權利之性質不相抵觸為準，且加以限制之唯一目的應在增進民主社會之公共福利。\n.\n...\n...\n.\n第6條\n1. 本公約締約國確認人人有工作之權利，包括人人應有機會憑本人自由選擇或接受之工作謀生之權利，並將採取適當步驟保障之。\n.\n...\n...\n.”\nE.2 須裁定的引申爭議點\n56.\n考慮《文化公約》\n第6條\n所述的工作權有何內容之前，又是首先要裁定一個初步爭議點，即各申請人能否倚賴此條文，這一點是重要的。基於下文闡述的理由，本席認為各申請人不能倚賴\n第6條\n，正如不能倚賴《人權法案》\n第14條\n一樣，所以就此幾宗上訴而言，不必亦不宜討論\n第6條\n所述的權利有何內容。本席將處理下列引申爭議點：\n(1) 《文化公約》\n第6條\n是否已納入香港的本地法律？\n(2) 英國政府1976年5月20日的保留條文對《文化公約》\n第6條\n有何影響？\nE.3 《文化公約》\n第6條\n是否已納入香港的本地法律？\n57.\n《基本法》\n第39條\n規定：\n“\n第39條\n《公民權利和政治權利國際公約》、《經濟、社會與文化權利的國際公約》和國際勞工公約適用於香港的有關規定繼續有效﹐通過香港特別行政區的法律予以實施。\n香港居民享有的權利和自由，除依法規定外不得限制，此種限制不得與本條第一款規定抵觸。”\n58.\n《基本法》\n第39(1)條\n所指的國際公約和國際勞工公約的條文是不能由任何人在香港直接強制執行的，除非有關條文已經由香港的本地或本土法律實施。終審法院常任法官李義在\nUbamaka\n案\n[85]\n概述此情況，“國際條約是不會自行生效的，不會賦予任何權利給任何個別公民，也不會使任何個別公民負上任何責任，除非及直到它透過立法程序成為本港的本地法律的一部分才會有此作用，這一點在香港法律裏確立已久（跟從英國法律的做法）”。這個做法有時稱為普通法的二元原則，而《基本法》\n第39(1)條\n的英文版和中文版的措詞均闡示此原則。把《權利公約》納入本地法律就是一個明顯的例子。《人權條例》就是體現《權利公約》適用於香港的條文的本地法律，這是眾所周知的\n[86]\n。施行此原則的其中一個後果是如有任何國際責任沒有被制定為本地法律的一部分，那麼，無論國際社會如何處理該責任，任何人都不可倚賴該國際責任的內容。此外，就《文化公約》而言，聯合國經濟及社會理事會的經濟、社會和文化權利委員會在1998年11月至12月在處理落實《文化公約》時引起的實質問題和關於在各國國內推行該公約的情況的第19屆會議裏確認以下事宜\n[87]\n：\n“5. 《公約》沒有規定國家法律秩序執行《公約》的具體方式，也沒有任何規定要求將其全面納入國內法或在國內法中賦予它具體的法律地位。雖然在國內法中實施《公約》所載權利的確切方法是由每一締約國決定的問題，但採用的方法應該是適當的，產生的結果必須與締約國充分履行義務相一致。委員會審查締約國履行其依《公約》所負義務的情況時還將對所選擇的方法進行審查。”\n59.\n各申請人對二元原則是適用的這一點並無爭議，卻力陳《文化公約》\n第6條\n（就其包含一項可以惠及像各申請人那樣的人的廣泛、無限制的工作權而言）已納入本地法律：\n(1) 各申請人引用的法律條文是\n《入境條例》\n其中三條：\n第17G(2)\n、\n38AA\n和\n37ZX條\n：\n(a)\n第17G(2)條\n規定：\n“(2) 在以不損害本條例內可向任何人施加逗留條件的條文為原則下，就本部而言，只有下列的人才可合法受僱 ——\n(a) 身為身分證持有人並且沒有違反根據本條例向他施加的任何逗留條件（如有的話）的人；\n(b) 公務護照持有人；或\n(c) 無須根據\n《人事登記條例》\n（\n第177章\n）登記並符合以下規定的人——\n(i) 持有有效旅行證件，該人在香港合法入境後，並無根據任何逗留條件而被禁止接受有薪或無薪的僱傭工作，而且沒有遣送離境令或遞解離境令對其有效；\n(ii)\n（由1984年第31號\n第4條\n廢除）\n(iii) 持有越南難民證，而該證並無禁止他接受僱傭工作；\n(iv) 持有豁免證明書；或\n(v) 持有由總督在憲報刊登命令認可的任何其他類型文件。”\n(b)\n第38AA條\n已在上文第32(2)段，註腳55列出。\n(c)\n第37ZX條\n規定：\n“37ZX\n具有已確立聲請的聲請人可申請接受僱傭工作的准許等\n(1) 處長可應具有已確立聲請的聲請人的申請，准許該聲請人接受僱傭工作或開辦或參與任何業務。\n(2) 除非處長信納有極其特殊的情況存在，令給予有關聲請人第(1)款的准許屬有理可據，否則不得給予該准許。\n(3) 根據本條給予的准許——\n(a) 可在時限及任何其他處長認為適宜施加的條件的規限下給予；及\n(b) 須以書面形式給予。\n(4) 根據本條給予的准許在以下情況出現時，即告失效——\n(a) 規限該准許的時限（如有的話）屆滿；或\n(b) 規限該准許的任何其他條件遭違反。\n(5) 在准許根據第(4)款失效之前，處長可更改根據第(3)款施加的時限或任何其他條件。\n(6) 為免生疑問，根據本條給予的准許並非及不得視為——\n(a) 根據\n第11條\n施加或更改的逗留期限或其他逗留條件；或\n(b) 處長根據\n第13條\n授權聲請人留在香港。”\n(2) 為了支持其論點，Fordham御用大律師提及另一份文件，該文件是處理《文化公約》的締約國根據該公約\n第16\n和\n17條\n提交的首次報告\n[88]\n。該文件包含中華人民共和國關於落實該公約的情況的報告。該文件的第2部分特定處理香港的情況。他請我等尤其留意第349段，該段說《文化公約》的條文已通過《基本法》多項條文和超過50條條例的條文納入香港的本地法律。該文件的附件2A說，《文化公約》\n第6條\n已經分別透過六條條例納入香港法律，當中包括\n《入境條例》\n。據此，Fordham御用大律師力陳\n第6條\n已經納入本地法律，所以各申請人可以倚賴\n第6條\n。\n60.\n各申請人提出的論點表面上看似有理，但本席認為這論點是經不起分析驗證的︰\n(1) 《文化公約》沒有如《權利公約》般全面被納入單一份本地法例，本席同意這當然不成問題；把該公約個別條文納入不同的法規也是可行的。如果某公約是處理不同主題的，則更可如此處理。《文化公約》本身的名稱已經表示它處理的是經濟、社會及文化權利事宜。\n(2) 不過，如果說某公約或某公約的某項條文已納入本地法例，重要的是要分析該本地法例，查看是否的確已納入及納入的程度。這就變成主要是如何解釋有關法例了。\n(3) 本席認為各申請人倚賴的三項法律條文，沒有一項收納了處於各申請人所處境況的人可享有的廣泛、無限制的工作權（據說這就是《文化公約》\n第6條\n的作用）︰\n(a)\n《入境條例》\n第17G(2)條\n根本沒有賦予廣泛的工作權。哪幾類人“可合法受僱”是有限制的。\n第17G(2)條\n也受\n《入境條例》\n關於逗留條件的其他部分規限。\n(b)\n《入境條例》\n第38AA條\n如有任何作用，那是與給予廣泛、無限制的工作權截然相反的；它實際是禁止接受僱傭工作。\n(c)\n《入境條例》\n第37ZX條\n容許某些人工作，但也是有限制的。該項條文只是授權處長給予獲確立酷刑聲請人工作准許。\n(4) 敍述中華人民共和國（包括香港）關於落實《文化公約》的情況的看法的那份文件對本席亦幫助不大：\n(a) 第一，必須考慮（各申請人倚賴的）摘錄段落的上文下理。有關聯的上文下理，如上訴法庭在其判案書指出的\n[89]\n，包括同一份文件的第403和404段：\n“\n就公約第六條所訂的保留條文\n403. 在二零零一年的審議結論第29段中，委員會建議“香港特區撒銷其就公約第六條所訂的保留條文，以及第八條的解釋性聲明（該聲明用以取代舊有的保留條文）”。\n404. 上述聲明用以保留我們詮釋第六條的權利，即是說對於前來香港特區工作的人，我們不排除會根據其出生地或居留資格施加限制，以保障本地工人的就業機會。我們詳細研究委員會的建議後，仍然認為必須保留該項聲明，以便我們可靈活制定措施，保障本地工入的利益和就業機會。因此，我們謹建議保留該項聲明。”\n本席認為這兩段清楚表明沒有廣泛、無限制的工作權，尤其是像各申請人那樣的人更沒有。本席在下一部會較詳細講述該保留條文。\n(b) 第二，或許這是更重要的，無論上述文件有何地位，畢竟只提供了對有關問題頗為概略和未經分析的看法，但我等必須特別留意的是實質事情，而就實質事情而言，重要的是檢視有關的法律條文，查看條約施加的責任是否真有依從二元性做法納入本地法律，以及如果有納入的話，納入的程度為何。從上文可見，\n第6條\n（按照各申請人主張的它所具有的含義）沒有被納入各申請人所指的任何一項\n《入境條例》\n條文。最多只可以說有某些通融之處，使如各申請人那樣的人可以獲准工作，但這和各申請人所說實際存在的一項廣泛、無限制的權利相去甚遠。\n61.\n因此，無論《文化公約》\n第6條\n有何作用或涵蓋多少內容，即使其作用是如同各申請人所說，是賦予廣泛和無限制的工作權，但他們不能由此得益，因為\n第6條\n沒有獲納入香港本地法律。\n62.\n聆訊時，Fordham御用大律師作出陳詞，大意是說對\n《入境條例》\n裏賦予處長酌情權以決定是否給予各申請人工作准許的有關條文，應給予遵從公約或條約規定的解釋。基本的陳詞是說如果法規賦予處長酌情權，對有關條文應給予符合國際責任的解釋，而在這方面有關的就是《文化公約》\n第6條\n。他倚賴以下各原則︰如果有關條文含糊不清，可有不同解釋，可解釋為遵從條約規定的責任，也可解釋為抵觸條約規定的責任，法庭便應採用遵從條約規定的責任的解釋\n[90]\n；合法性原則，即如果法律條文的措詞籠統，便不足以凌駕基本權利，除非它清楚明確規定凌駕\n[91]\n；如有必要，法庭會對有關的法律條文作出補救性解釋\n[92]\n。\n63.\n基於這些原則作出的陳詞無須深究。雙方同意可以運用這些原則之前，必須先有相關的憲法權利或基本權利。各申請人不能闖過這一關。根據二元原則觀之，《文化權利》\n第6條\n（按照各申請人對它的解釋）沒有獲納入本地法律。\n64.\n如再審視英國政府在1976年5月20日訂立的關於《文化公約》的保留條文，上述結論則獲更多支持。\nE.4 英國政府在1976年5月20日訂立的關於《文化公約》\n第6條\n的保留條文的作用\n65.\n該保留條文的措詞如下︰\n“聯合王國政府保留權利以解釋第六條為不阻止為了保障某地區或地方的工人的就業機會的目的，而施加基於出生地或居留資格的，關於在該地區或地方接受僱傭工作的限制。”\n66.\n平平常常地閱讀該保留條文一遍，便似乎清楚見到無論\n第6條\n有何作用，即使假設它本來可以賦予像各申請人那樣的人廣泛、無限制的工作權，但訂立該保留條文的原意就是要保留權利以限制\n第6條\n的適用範圍。如同英國政府就《權利公約》訂立的保留條文的情況一樣，無論如何，《基本法》\n第39(1)條\n的作用是只容許《文化公約》“適用於香港”的規定繼續有效；換言之，該公約是在不抵觸該保留條文的情況下適用於香港\n[93]\n。\n67.\n各申請人提出兩點：\n(1) 第一，按照該保留條文的真正解釋，雖然該保留條文可以容許施加基於出生和居留的限制，但在法律方面來說，這些限制是否有效只可以運用適合的關於是否合憲的驗證標準作出裁定——而最終的裁定只可以由法庭作出\n[94]\n。\n(2) 第二，該所謂的保留條文在國際法上根本不是保留條文，而只是解釋性聲明。根據《維也納條約法公約》裏的定義，保留條文的含義如下\n[95]\n：\n“(d) 稱‘保留’者，謂一國於簽署，批准、接受、贊同或加入條約時所做之片面聲明，不論措詞或名稱如何，其目的在摒除或更改條約中若干規定對該國適用時之法律效果；”\n有時，某國作出稱為解釋性聲明的聲明，目的只是提出一個關於某事情的初步解釋，但沒有表示是具有約束性的；換言之，它不是試圖在該國同意承擔國際責任時更改該國的責任，而對這種解釋，法庭是可以加以不同的解釋\n[96]\n。\n68.\n本席認為這兩點（提出時也不太熱忱）可以簡略地處理：\n(1) 如果訂立該保留條文的原意是各申請人所說般狹窄，這就奇怪了。它的措詞並不表達這個意思。各申請人提出的解釋也不能從該保留條文的上文下理和目的推斷出來，以使該保留條文的目的可被理解為保障有關地區或地方的居民的就業機會。各申請人提出的解釋可算是無意義的。正如上訴法庭法官霍兆剛在其判案書中分析\n[97]\n，如果該保留條文的作用只是指出可以對\n第6條\n的權利施加甚麼限制，但最終這些限制是要採用有理可據的驗證標準審核，這一點便早已蘊藏在同一份公約的\n第4條\n[98]\n了。\n(2) 該保留條文顯然是為了摒除或更改《文化公約》\n第6條\n規定的責任這個目的而訂立的保留條文。它確實使用“保留”這個詞，並且如上文所述，其訂立原意從它的上文下理和目的清楚透露出來。要就這個問題作出裁定，重要的是查看其“實質內容”\n[99]\n。值得一提的是法律著作的作者也認為該保留條文確是一項保留條文：請看，例如，Matthew Craven所寫的\nThe\nInternational Covenant on Economic, Social and Cultural Rights\n: A perspective on its Development\n[100]\n。\nF. 《基本法》\n第33條\n69.\n本席現在處理據各申請人所說，是作為他們力言存在的憲法保障的工作權的基礎的第三項條文。《基本法》\n第33條\n規定：\n“香港居民有選擇職業的自由。”\n70.\n據本席理解，Fordham御用大律師的陳詞是這樣的：《基本法》\n第33條\n與本案有關聯是因為\n第33條\n含有一個假設，就是有一項廣泛的工作權。根據這個說法，\n第33條\n是按照二元原則把《文化公約》\n第6條\n納入香港本地法律的另一個途徑。寫出中國對落實《文化公約》的情況的看法的文件\n[101]\n提及《基本法》\n第33條\n，說它是\n第6條\n的憲制保障\n[102]\n。\n71.\n第33條\n沒有提及廣泛工作權，它的內容比工作權狹窄得多，只是關於擇業自由而已。如果立法原意是要保障一項範圍較廣泛的權利，\n第33條\n就會把這個意思說出來，或者會用清楚許多的措詞表達，而不是像現時般隱晦。\n72.\n上訴法庭法官霍兆剛在其判案書說\n[103]\n：\n“139. 《基本法》\n第33條\n是源於《聯合聲明》\n第3(5)條\n（第17段）和《聯合聲明》的附件1第13部（第151段），該兩段都提到某些權利和自由，包括“選擇職業”的自由，但沒有明文提及較廣泛的工作權。簽訂《聯合聲明》時選擇職業的自由的重要性在於當時在中國的計劃經濟下的做法，就是就讀各大學的學生畢業後會被編配到特定的學習範疇和配給特定職業：請看\nChan and Lim (General Editors): Law of the Hong Kong Constitution\n(Sweet & Maxwell, 2011)第24.004段。\n140. 本席的意見是有權選擇自己職業這項權利比廣泛的工作權狹窄。如《文化公約》的《一般評論第18號》第6段所說，不應把工作權理解為絕對和無條件地得到僱傭工作的權利，而是包括自由決定接受工作或選擇工作的權利。這證明選擇職業的自由只是《文化公約》\n第6條\n所述的廣泛的工作權的一部分。如果《基本法》\n第33條\n的立法原意是賦予比選擇自由更多的權利，可以預期它的措詞會有所不同。\n141. 此外，與《基本法》\n第33條\n有關的上文下理包括這個事實，就是由於《基本法》\n第39條\n的規定，適用於香港的《權利公約》和《文化公約》，包括《人權條例》\n第11條\n反映出來的出入境保留條文和英國訂立的關於《文化公約》\n第6條\n的保留條文。本席在上文已經講述如何解讀這兩項保留條文。鑑於本席就這兩項條文的適當解釋作出的結論，若要認定《基本法》\n第33條\n顧及上文下理的適當解釋是與《文化公約》\n第6條\n涵蓋相同的範圍，這個解釋就不對了，因為這是不理會針對《文化公約》\n第6條\n的英國保留條文。\n142. 本席補充一點，就是這個關於\n第33條\n的適當解釋的結論和過往處理過\n第33條\n的案例是一致的，那些案例裁定\n第33條\n的作用不是保障一項在一般情況下，或在任何特定範疇裏得到僱傭工作的權利，而是保障不會被徵召到某些種類的職業或工作︰見\nCheng Chun‑ngai Daniel v Hospital Authority\n案，未經彙編，高院憲法及行政訴訟2002年第202（HCAL 202/2002）號（2004年11月12日）第55段；\nFinancial Services and Systems Limited v Secretary for Justice\n案，未經彙編，高院憲法及行政訴訟2006年第101號（HCAL 101/2006）（2007年7月6日）第49‑53段；\nNg King Tat Philip v Post-Release Supervision Board\n案，未經彙編，高院憲法及行政訴訟2010年第47號（HCAL 47/2010）（2010年8月23日）第116‑117段。另見\nHong Kong’s New Constitutional Order\n（第2版）Yash Ghai教授著，第435‑436頁。\n143. 因此，依本席之見，《基本法》\n第33條\n賦予的權利是被動的或消極的自由選擇職業的權利，但首先，它並不默示有接受現成僱傭工作的權利，亦不賦予無規限地得到僱傭工作的權利。可否得到僱傭工作必然是受市場各種力量的制約，和受法律制約，例如關於簽證和資格的規定。”\n73.\n本席對以上各段謹表示贊同。\n74.\n御用大律師Pannick勳爵在這方面還倚賴《基本法》\n第41條\n[104]\n，力言\n第33條\n無論如何不適用於如各申請人那樣的非香港居民。然而，本席在這方面不必就\n第41條\n得出任何結論。\nG 普通法的工作權\n75.\n各申請人作出的最後一番陳詞是提出一個論點，說普通法包含工作權。處理此陳詞無須長篇大論。他們引述的案例沒有一個證實有此權利。正如御用大律師Pannick勳爵指出，那些案例的有關情況和本案的情況迥然不同\n[105]\n。更重要的是，在本案的情況下，尤其是討論過《人權條例》\n第11條\n、《基本法》\n第39條\n及有關《權利公約》和《文化公約》的兩項保留條文之後，實難想像普通法裏存在着工作權。\nH 相稱性\n76.\n從上文所述，明顯可見本案裏沒有可使各申請人受惠的憲法保障的工作權，所以沒有引起任何須考慮的關於相稱性的問題。\nI 處長的酌情權和不人道處遇\n77.\n如上文提及，即使沒有憲法保障的工作權，也不表示處長運用他的酌情權決定是否准許如各申請人那樣的人工作時，就可以毫無限制地隨心所欲行事。答辯人的案情從來沒有說這是必然的結果，事實也並非如此\n[106]\n。處長在這方面的酌情權確實有何限制，這當然要藉由將來的案件裁定。現時可知有一個因素──一個重要的因素──是對處長的酌情權有影響的，就是不人道處遇這個因素。這一點先前已經討論過\n[107]\n。\nJ 結論\n78.\n基於上文所述各項理由，本席會駁回所有上訴，但本席會作出暫准命令，就是不就訟費作出命令。可以說各申請人關於不人道處遇的陳詞是有部分成功的\n[108]\n。各申請人本身的訟費須按照\n《法律援助規例》\n（第91A章）評定。如任何一方想得到與此不同的訟費命令，應在本判案書發下起計14日內將書面陳詞送達另一方或各方和呈交本院，而另一方或各方可在其後14日內送達和呈交書面陳詞。如果沒有此等陳詞，暫准命令便會在作出此等陳詞的期限屆滿時成為絕對命令。\n終審法院常任法官李義︰\n79.\n本席贊同首席法官的判決。\n終審法院常任法官鄧國楨︰\n80.\n本席贊同首席法官的判決和非常任法官陳兆愷的意見。\n終審法院非常任法官陳兆愷︰\n81.\n本席完全贊同首席法官的判決。本席只想就《基本法》\n第39(1)條\n補充一點意見。\n82.\n如果有人爭論說\n第39(1)條\n規定政府有責任制定新法律以實施《權利公約》和《文化公約》，並且規定有一項權利可以向法庭申請強制政府履行此責任，其實\n第39(1)條\n沒有如此作用。按照\n第39(1)條\n的真確解釋，和考慮到\n第39(1)條\n的目的和各種有關情況（包括《聯合聲明》第13部的歷史，那是\n第39(1)條\n的源頭），\n第39(1)條\n沒有規定有這個責任。這一點不僅從英文版的措詞清楚表現出來，中文版的措詞也表明這一點。它沒有採用強制性字眼，而所用字句清楚表示只有適用於香港的有關規定才繼續有效。它也沒有提及將來須要立法，而是同樣清楚表示適用於香港的有關規定是通過香港特別行政區的法律予以實施。這個解釋符合《聯合聲明》的雙方的共同理解，也符合在1984年，簽署《聯合聲明》之前，英國政府發表也在香港印行的白皮書裏（第43至47段）的說明。\n83.\n正如首席法官在上文第58段所說，\n第39(1)條\n宣布《聯合聲明》的雙方當時他們理解的香港的情況，及反映二元原則，即是國際條約不會賦予任何權利給任何人，也不會使任何人負上任何責任，除非它透過立法程序成為本地法律的一部分才會有此作用。見\nUbamaka v Secretary for Security\n案第43和44段。\n終審法院非常任法官簡嘉麒勳爵︰\n84.\n本席亦贊同首席法官的判決。\n終審法院首席法官馬道立︰\n85.\n基於上述各點理由，本院一致駁回所有上訴，並作出上文第78段所述的暫准訟費命令。\n（馬道立）\n終審法院首席法官\n（李義）\n終審法院常任法官\n（鄧國楨）\n終審法院常任法官\n（陳兆愷）\n終審法院非常任法官\n（簡嘉麒勳爵）\n終審法院非常任法官\n各上訴人：由法律援助署委派彭思帝理律師行延聘御用大律師Michael Fordham先生、大律師鄧鈞堤先生和大律師白天賜先生代表\n答辯人：由律政司延聘御用大律師David Pannick勳爵、資深大律師石永泰先生和大律師周昭雯女士代表\n[本譯文由法庭語文組翻譯，並經由鍾雪貞律師核定。]\n[1]\n這是《1951年聯合國難民地位公約》和該公約的《1967年議定書》通常的簡稱。順帶一提，該公約有明確條文（\n第17條\n）容許難民有工作權。\n[2]\n政府內負責入境事務的有關官員是入境事務處處長，即這幾宗上訴的答辯人（“處長＂）。\n[3]\n如有必要，在此階段處長也可能須考慮該人是否難民︰見\nC and others v Director of Immigration\n案\n[2013] 4 HKC 563\n。2014年2月7日，政府公布用來審核免遣返保護聲請的統一審核機制的詳情。\n[4]\nGA是在2004年7月獲承認為經核實難民（他在2004年6月抵港）；FI在2006年12月（他在2005年9月抵港）；JA在2002年10月（他也是在該月抵港）。\n[5]\n《禁止酷刑和其他殘忍、不人道或有辱人格的待遇或處罰公約》（通常稱為《禁止酷刑公約》，英文縮寫是CAT）。\n[6]\n第3(1)條\n。\n[7]\n這是本院在\n保安局局長 對 Sakthevel Prabakar\n（2004）7 HKCFAR 187\n一案的判決結果。\n[8]\n原訟法庭聆訊本案時，法官（原訟法庭法官張舉能，當時官銜）把他描述為在香港第一位獲確立的酷刑聲請人。\n[9]\n原訟法庭法官張舉能2011年1月6日的判案書第5至11段、上訴法庭法官霍兆剛（當時官銜）2012年11月27日的判案書第7至9段。\n[10]\n判案書第7段。\n[11]\n各申請人在這幾宗上訴由Michael Fordham御用大律師、鄧鈞堤大律師和白天賜大律師代表。\n[12]\n耳熟能詳的三個問題是︰\n(1) 侵犯有關權利是否為了達到某個合法目的？\n(2) 侵犯有關權利是否和該合法目的有合理關連？及\n(3) 有關權利受到的侵犯是否不超過為達到該合法目的而必需的程度？\n[13]\n載於香港法例\n第383章\n《香港人權法案條例》\n。\n第14條\n規定不得侵擾任何人之私生活。\n第14條\n全文在下文第18段引述。\n[14]\n下文第55段。\n[15]\n見下文第69段。\n[16]\n處長在這幾宗上訴由御用大律師Pannick勳爵、石永泰資深大律師和周昭雯大律師代表。\n[17]\n在下文第20段引述。\n第11條\n說明對於無權進入及停留於香港的人來說，《人權法案》不影響規管這些人逗留於香港（及某些其他事情）的出入境法例。\n[18]\n該保留條文和《人權法案》\n第14條\n是有關聯的。該保留條文在下文第29(2)段引述。\n[19]\n本席在此階段稱之為保留條文，但各申請人辯稱它不是真的保留條文，而只是關於釋義的聲明。該保留條文在下文第65段引述。\n[20]\n在下文第74段，註腳104引述。\n[21]\n請看下文D.3部。\n[22]\n日期是2011年1月6日。\n[23]\n例如程序公平、Wednesbury（韋恩斯伯里）式不合理情況等等。請看下文 I 部。\n[24]\n判案書第121段。\n[25]\n上訴法庭副庭長司徒敬、上訴法庭法官關淑馨及上訴法庭法官霍兆剛。\n[26]\n霍兆剛法官的判案書，其他法官贊同。\n[27]\n在上文第7(5)段提及。\n[28]\n如上訴法庭判案書第19段所說，司法覆核法律程序展開後，MA和一名香港永久居民結婚，獲發受養人簽證，所以可以在香港工作。\n[29]\n比照\n保安局局長 對 Sakthevel Prabakar\n案\n(2003) 6 HKCFAR 397\n，第4段；\n(2004) 7 HKCFAR 187\n，第42段。\nChit Fai Motors Company Limited v Commissioner for Transport\n案\n[2004] 1 HKC 465\n。\n[30]\n(2012)15 HKCFAR 743\n。\n[31]\n分析是載於終審法院常任法官李義的判案書內，其他法官同意。\n[32]\n如果入境者（非永久香港居民）被裁定犯了可判處不少於兩年監禁的罪行，有關當局有權把他遞解離境。\n[33]\n請看終審法院常任法官李義的判案書第55至78段。\n[34]\n該判案書第79至95段。\n[35]\n該判案書第96至102段。\n[36]\n下文D.3部。\n[37]\n賦予處長和其他入境事務主任施加逗留條件的權力。\n[38]\n賦予處長給予獲確立酷刑聲稱人（例如PA）工作准許的權力。\n[39]\n[2013] 2 HKLRD 533\n，第76至77段。該案裏，法院處理的是《基本法》第24(2)和(4)條“通常居住”這幾個字的適當解釋。\n[40]\n案中提及終審法院非常任法官梅師賢爵士在\n香港特別行政區 訴 林光偉\n案\n(2006) 9 HKCFAR 574\n的判案書。這個方法在不同案件裏重申了多次，近來有一次是本院在\nFully Profit (Asia) Limited v Secretary for Justice\n案\n[2013] 6 HKC 374\n第15段。\n[41]\n第11條\n是在《人權法例》第III部內，該部的標題是“例外及保留條文”。\n[42]\n《人權法案》把《權利公約》的條文納入香港的本地法律。\n[43]\n《維也納條約法公約》\n第19條\n。\n[44]\n據說主要的理由是要防止入境者湧入英國。\n[45]\n請看\nUbamaka\n案第67段。\n[46]\nUbamaka\n案第69段。\n[47]\n見下文第57段。\n[48]\n第48至96段。\n[49]\n第103段。\n[50]\n(1996) 23 EHRR 143\n第73段。\n[51]\n本席在下文D.3部會講述這方面。\n[52]\n在下文第59(1)(c)段引述。\n[53]\n第14條\n規定︰\n“\n暫時的保留條文\n(1) 自生效日期起計的1年期間內，本條例受附表所列的條例規限。\n(2) 根據或憑藉附表所列任何條例而 —\n(a) 作出的任何行為（包括在行使酌情決定權時作出的行為）；或\n(b) 授權或規定的任何不行為，或在行使酌情決定權時發生的任何不行為，\n若是在生效日期1週年之前發生，不受本條例影響。”\n《人權條例》的附表列出的條例包括\n《入境條例》\n。\n[54]\n在下文D.3部討論。\n[55]\n第38AA條\n規定︰\n“\n禁止接受僱傭工作及開辦業務等\n(1) 如 —\n(a) 任何人在香港非法入境後，未得處長根據\n第13條\n授權而留在香港；或\n(b) 有遣送離境令或遞解離境令對任何人有效，\n該人不得接受有薪或無薪的僱傭工作，或開辦或參與任何業務。\n(2) 任何人違反第(1)款，即屬犯罪，經定罪後，可處第5級罰款及監禁3年。”\n[56]\n人權事務委員會對這份報告的考慮詳情刊登在該委員會的《對各締約國根據《權利公約》\n第40條\n呈交的報告的考慮詳情，第六次定期報告》（日期是2007年5月18日，CCPR/C/GBR/6）。該報告是關於英國。關於拘留的有關法例是《2001年反恐怖主義、罪行及保安法令》。\n[57]\n日期是2008年1月16日（A/HRC/7/4/Add.1）。\n[58]\n上文第3段，註腳1。\n[59]\n上訴法庭霍兆剛法官的判案書第41段。\n[60]\n上訴法庭判案書第34和47段。\n[61]\n見上文第32(2)段。\n[62]\n見上文第33段。\n[63]\n見上訴法庭法官霍兆剛的判案書第49段。\n[64]\n見上文第33段。\n[65]\n見上文第28至30段。\n[66]\n上文第10段。另見下文Ｉ部。\n[67]\n第106至116和133段。\n[68]\n第5條\n規定：\n“\n5. 緊急狀態\n(1) 如經當局正式宣布緊急狀態，而該緊急狀態危及國本，得在此種危急情勢絕對必要之限度內，採取減免履行人權法案的措施，但採取此等措施，必須按照法律而行。\n(2) 根據第(1)款採取之措施不得—\n(a) 抵觸依國際法所負並適用於香港之義務，但依《公民權利和政治權利國際公約》所負之義務除外；\n(b) 引起純粹以種族、膚色、性別、語言、宗教或社會階級為根據之歧視；或\n(c) 減免履行人權法案第二、三、四(一)及(二)、七、十二、十三及十五條之規定。”\n[69]\n第114段。\n[70]\n在J.2部，第172至176段。\n[71]\n[2006]\n1 AC 396\n。\n[72]\n第173段。\n[73]\n第7段。\n[74]\n第8段。\nLimbuela\n案是涉及不人道或侮辱之處遇的案件。該案裏，有人質疑拒絕給予尋求庇護者福利支援的決定。根據英國的有關法例，一般情況下，尋求庇護者抵達英國後，須要在切實可行的情況下盡快提出庇護聲請，這樣才可以得到支援，但該法例須不抵觸《歐洲人權公約》保障的權利。該案的申請人聲稱拒絕給他們福利支援構成不人道或侮辱之處遇，涉及一項公約權利（\n第3條\n）。\n[75]\nLimbuela\n案第9段（Bingham勳爵（Lord Bingham of Cornhill））和第59段（Hope勳爵（Lord Hope of Craighead））\n[76]\nLimbuela\n案第59段（Hope勳爵（Lord Hope of Craighead））和第72段（施廣智勳爵（Lord Scott of Foscote））；\nSoering v United Kindgom\n案\n(1989) 11 EHRR 439\n，第89段。\n[77]\n第172段。\n[78]\n第174、175段。\n[79]\n見\nLimbuela\n案第8、62、72、78和102段。\n[80]\n第45段。\n[81]\n上文第9和13段。\n[82]\n下級法庭的兩份判案書的日期先於本院在\nUbamaka\n案的判決。\n[83]\n見上文第6(3)和16(2)段。\n[84]\n見\nUbamaka\n案第172段。\n[85]\n第43段。\n[86]\n見\n岑國社 對 香港特別行政區\n案\n(2002) 5 HKCFAR 381\n，第53段。\n[87]\n日期為1998年12月23日的文件（E/C.12/1998/24）第5段。\n[88]\n文件日期為2004年3月4日（E/1990/5/Add.59）。\n[89]\n第130、131段。\n[90]\n見\nUbamaka\n案第43段，該段引述\nR v Secretary for the Home Department ex parte Brind\n[1991]\n1 AC 696\n，第747‑8頁。\n[91]\n見\nA v Commissioner of Independent Commission Against Corruption\n案\n（2012）15 HKCFAR 362\n，第67至69段，該處引述\nR v Secretary of State for the Home Department ex parte Simms\n案 [2002]\n2 AC 115\n和\nCoco v The Queen\n案\n[1993] 179 CLR 427\n。\n[92]\n見\n香港特別行政區 訴 林光偉\n（2006） 9 HKCFAR 574\n，第62至79段。\n[93]\n見上文第29(2)段；\nUbamaka\n案第53段。\n[94]\n例如相稱性驗證標準。\n[95]\n見\n第1(d)條\n。\n[96]\n見\nBelilos v Switzerland\n案\n(1988) 10 EHRR 466\n，第40段。\n[97]\n上訴法庭判案書第112段。\n[98]\n在上文第55段引述。\n[99]\nBelilos\n案第49段。\n[100]\nClarendon Press，1995年。\n[101]\n先前在上文第59(2)段提及。\n[102]\n附件2A。\n[103]\n第139至143段。\n[104]\n《基本法》\n第41條\n規定︰\n“在香港特別行政區境內的香港居民以外的其他人，依法享有本章規定的香港居民的權利和自由。”\n[105]\n它們處理的爭議點主要是關於限制行業或類似的概念。\n[106]\nC and Others v Director of Immigration\n案\n[2013]4 HKC 563\n，第18‑22段（終審法院常任法官鄧國楨）及第71‑86段（終審法院非常任法官梅師賢爵士）載有關於在這方面的限制的討論很有用。\n[107]\n上文D.3部。\n[108]\n下級法庭裁定由於《人權條例》\n第11條\n，不人道或侮辱之處遇是不會有任何關係的。有關判決是本院在\nUbamaka\n案的判決之前作出的。", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2013/FACV000007Y_2013.docx", + "file_name": "FACV000007Y_2013.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkcfi/2000_HKCFI_1659/HCSA000021_2000.txt b/zh_cases_hkcfi/2000_HKCFI_1659/HCSA000021_2000.txt new file mode 100644 index 0000000..ca78a2e --- /dev/null +++ b/zh_cases_hkcfi/2000_HKCFI_1659/HCSA000021_2000.txt @@ -0,0 +1,65 @@ +HCSA 21/2000 + + +香港特別行政區 +高等法院 +原訟法庭 +小額錢債審裁處上訴2000年第21號 +（原本案件編號：小額錢債審裁處申索2000年第4808號） +____________ + + +有關 + + 精誼紙品廠 申索人 + （答辯人） + + 及 + + CHAK HAK T/A STANDARD (HONG KONG) CO. 被告人 + （上訴人） + +_____________ + + + + +主審法官：高等法院原訟法庭朱芬齡暫委法官內庭聆訊 +聆訊日期：2000年9月26日 +宣判日期： 2000年9月26日 + + + + + + + +判 决 理 由 書 + + + 被告人就小額錢債審裁處審裁官本年6月5日裁決其敗訴和8月9日拒絕其覆核申請的決定申請上訴許可。本席經聆訊後拒絕被告人的申請，現將當庭口述的理由記述於後。 + + 申索人為紙品供應商。其於去年年中供應了一批衣服標簽給一間明暉製品公司（“明暉”）。明暉以支票支付貨款，但支票不能兌現。明暉東主何小姐告之申索人已將公司出售予被告人，而所欠貨款亦由被告承擔。申索人亦應何小姐要求，重新發出發票供被告人確認，並將不兌現的支票退回何小姐。後何小姐用被告人公司的印章在重發的發票上蓋印確認。申索人其後因被告人拒付有關貨款，遂入禀小額錢債審裁處申索。 + + 被告人雖同意是在明暉的原址經營業務及曾支付部份明暉的其他債務，但否認曾承諾支付欠申索人的貨款。被告人亦指從未授權何小姐以其公司印章確認申索人重發的發票，更沒有授權她代表被告人的公司承認有關的貨款。被告人同時指出收購明暉的計劃最終乃是告吹。 + + 審裁官經聆畢申索人東主周先生、何小姐和被告人的兒子翟格先生（也即是被告公司的負責人）的証言後，裁定周先生和何小姐的証言可信。審裁官認定何小姐與被告人方面曾協議由被告人承擔欠申索人的貨款。何小姐同時出任被告人公司的營業經理，並獲授權使用公司印章。審裁官又認定翟先生曾聯絡周先生，口頭上確認本案所涉的貨款，並承諾負責清還。審裁官因此裁定：(1)何小姐是代表被告人公司在發票上蓋印作實、承認有關貨款；和(2)經申索人、明暉和被告人三方面同意下，本案所涉的貨款經已轉移予被告人。審裁官遂裁決申索人勝訴。 + + 被告人提出擬上訴的理由為所涉債務源於申索人與明暉間的業務往來，與被告人無關；而債務又是在申索人和明暉私相授受的情況和未得被告人授權下強加諸被告人身上。代表被告人出席本庭的翟先生也指何小姐的証言失實。他同時指出被告人雖曾使用部份申索人所提供予明暉的貨品，但債務始終是明暉和申索人的瓜葛， 不該由被告人肩負。 + + 被告人代表在本庭聆訊時所作的觀點在原審和覆核聆訊時均已提及。然而審裁官最終認為申索人方面的証言和說法可信，並採納為判案的事實依據。也就是說審裁官並不接納被告人上述的說法。這些屬事實方面的裁斷，與訟雙方無權就此提出上訴。按審裁官所認定的事實，則法律上何小姐無疑是有權代表被告人的公司行使公司印章以確認欠申索人的款項，而何小姐的作為亦對被告人具法律約束力。針對作為第三者的申索人而言，即使何小姐實際上是未獲授權或其作為是超越其權限，被告人也不能以此作為抗辯理由。被告人明知明暉負債，在收購明暉過程中選擇在明暉原址經營，又委任何小姐為其公司營業經理，且容許其使用公司印章，造成何小姐是被告人公司獲授權的代表或代理人的客觀事實。在此情況下，針對不知實情的第三者而言，被告人遂得為何小姐的作為負上責任。審裁官裁定被告人是經何小姐接收並負上明暉所欠申索人的的債務這一點，乃是無爭辯的餘地。 + + 同樣，基於審裁官對事實方面的裁斷，即翟先生曾向周先生承諾支付有關貨款，而周先生因而不向明暉進一步追討，且退回不兌現支票，涉案三方面確是已達成對彼此均有約束力的債務轉讓協議。在此原則下，審裁官裁決被告人須負擔有關債務亦是不容爭辯。 + + 再者，審裁官裁決時也曾引申《業務轉讓（債權人保障）條例》作為裁決被告人敗訴的依據。本席認為這部份的裁決理由亦無失誤之處。 + + 基於上述考慮，本席認為被告人不能顯示其上訴乃涉可供爭辯的法律論點，因而不符合《小額錢債審裁處條例》第28條所規定的上訴範圍，故本席拒絕給予上訴許可。 + + + + + （朱芬齡） + 高等法院原訟法庭暫委法官 + + +被告人無律師代表，授權翟格先生代表出庭。 \ No newline at end of file diff --git a/zh_cases_hkcfi/2000_HKCFI_1659/case.json b/zh_cases_hkcfi/2000_HKCFI_1659/case.json new file mode 100644 index 0000000..f386661 --- /dev/null +++ b/zh_cases_hkcfi/2000_HKCFI_1659/case.json @@ -0,0 +1,26 @@ +{ + "Date": "26 Sep, 2000", + "Action No.": "HCSA21/2000", + "Neutral Cit.": "[2000] HKCFI 1659", + "case_title": "精誼紙品廠 訴 CHAK HAK T/A STANDARD (HONG KONG) CO.", + "page_title": "精誼紙品廠 訴 CHAK HAK T/A STANDARD (HONG KONG) CO. | [2000] HKCFI 1659 | HKLII", + "case_history": [ + { + "name": "HCSA21/2000", + "link": "https://www.hklii.hk/tc/appealhistory/HCSA/2000/21" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkcfi/2000/1659", + "neutral_cit": "[2000] HKCFI 1659", + "court_code": "HKCFI", + "content": "HCSA000021/2000 XCHRX 精誼紙品廠 訴 CHAK HAK T/A STANDARD (HONG KONG) CO.\nHCSA000021/2000\nHCSA 21/2000\n香港特別行政區\n高等法院\n原訟法庭\n小額錢債審裁處上訴2000年第21號\n（原本案件編號：小額錢債審裁處申索2000年第4808號）\n____________\n有關\n精誼紙品廠\n申索人（答辯人）\n及\nCHAK HAK T/A STANDARD (HONG KONG) CO.\n被告人（上訴人）\n_____________\n主審法官：高等法院原訟法庭朱芬齡暫委法官內庭聆訊\n聆訊日期：2000年9月26日\n宣判日期： 2000年9月26日\n_____________________\n判 决 理 由 書\n_____________________\n1.\n被告人就小額錢債審裁處審裁官本年6月5日裁決其敗訴和8月9日拒絕其覆核申請的決定申請上訴許可。本席經聆訊後拒絕被告人的申請，現將當庭口述的理由記述於後。\n2.\n申索人為紙品供應商。其於去年年中供應了一批衣服標簽給一間\n明暉\n製品公司（“\n明暉\n”）。\n明暉\n以支票支付貨款，但支票不能兌現。\n明暉\n東主何小姐告之申索人已將公司出售予被告人，而所欠貨款亦由被告承擔。申索人亦應\n何\n小姐要求，重新發出發票供被告人確認，並將不兌現的支票退回\n何\n小姐。後\n何\n小姐用被告人公司的印章在重發的發票上蓋印確認。申索人其後因被告人拒付有關貨款，遂入禀小額錢債審裁處申索。\n3.\n被告人雖同意是在\n明暉\n的原址經營業務及曾支付部份\n明暉\n的其他債務，但否認曾承諾支付欠申索人的貨款。被告人亦指從未授權\n何\n小姐以其公司印章確認申索人重發的發票，更沒有授權她代表被告人的公司承認有關的貨款。被告人同時指出收購\n明暉\n的計劃最終乃是告吹。\n4.\n審裁官經聆畢申索人東主\n周\n先生、\n何\n小姐和被告人的兒子\n翟格\n先生（也即是被告公司的負責人）的証言後，裁定\n周\n先生和\n何\n小姐的証言可信。審裁官認定\n何\n小姐與被告人方面曾協議由被告人承擔欠申索人的貨款。\n何\n小姐同時出任被告人公司的營業經理，並獲授權使用公司印章。審裁官又認定\n翟\n先生曾聯絡\n周\n先生，口頭上確認本案所涉的貨款，並承諾負責清還。審裁官因此裁定：(1)\n何\n小姐是代表被告人公司在發票上蓋印作實、承認有關貨款；和(2)經申索人、\n明暉\n和被告人三方面同意下，本案所涉的貨款經已轉移予被告人。審裁官遂裁決申索人勝訴。\n5.\n被告人提出擬上訴的理由為所涉債務源於申索人與\n明暉\n間的業務往來，與被告人無關；而債務又是在申索人和\n明暉\n私相授受的情況和未得被告人授權下強加諸被告人身上。代表被告人出席本庭的\n翟\n先生也指\n何\n小姐的証言失實。他同時指出被告人雖曾使用部份申索人所提供予\n明暉\n的貨品，但債務始終是\n明暉\n和申索人的瓜葛， 不該由被告人肩負。\n6.\n被告人代表在本庭聆訊時所作的觀點在原審和覆核聆訊時均已提及。然而審裁官最終認為申索人方面的証言和說法可信，並採納為判案的事實依據。也就是說審裁官並不接納被告人上述的說法。這些屬事實方面的裁斷，與訟雙方無權就此提出上訴。按審裁官所認定的事實，則法律上\n何\n小姐無疑是有權代表被告人的公司行使公司印章以確認欠申索人的款項，而\n何\n小姐的作為亦對被告人具法律約束力。針對作為第三者的申索人而言，即使\n何\n小姐實際上是未獲授權或其作為是超越其權限，被告人也不能以此作為抗辯理由。被告人明知\n明暉\n負債，在收購\n明暉\n過程中選擇在\n明暉\n原址經營，又委任\n何\n小姐為其公司營業經理，且容許其使用公司印章，造成\n何\n小姐是被告人公司獲授權的代表或代理人的客觀事實。在此情況下，針對不知實情的第三者而言，被告人遂得為\n何\n小姐的作為負上責任。審裁官裁定被告人是經\n何\n小姐接收並負上\n明暉\n所欠申索人的的債務這一點，乃是無爭辯的餘地。\n7.\n同樣，基於審裁官對事實方面的裁斷，即\n翟\n先生曾向\n周\n先生承諾支付有關貨款，而\n周\n先生因而不向\n明暉\n進一步追討，且退回不兌現支票，涉案三方面確是已達成對彼此均有約束力的債務轉讓協議。在此原則下，審裁官裁決被告人須負擔有關債務亦是不容爭辯。\n8.\n再者，審裁官裁決時也曾引申《業務轉讓（債權人保障）條例》作為裁決被告人敗訴的依據。本席認為這部份的裁決理由亦無失誤之處。\n9.\n基於上述考慮，本席認為被告人不能顯示其上訴乃涉可供爭辯的法律論點，因而不符合\n《小額錢債審裁處條例》\n第28條\n所規定的上訴範圍，故本席拒絕給予上訴許可。\n（朱芬齡）\n高等法院原訟法庭暫委法官\n被告人無律師代表，授權翟格先生代表出庭。", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2000/HCSA000021_2000.doc", + "file_name": "HCSA000021_2000.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkcfi/2006_HKCFI_1998/HCB005969_2006_abp_fallback.txt b/zh_cases_hkcfi/2006_HKCFI_1998/HCB005969_2006_abp_fallback.txt new file mode 100644 index 0000000..2eebe58 --- /dev/null +++ b/zh_cases_hkcfi/2006_HKCFI_1998/HCB005969_2006_abp_fallback.txt @@ -0,0 +1,5 @@ + HCB 5969/2006 香港特別行政區 高等法院原訟法庭 民事司法管轄權 高等法院破產案件2006年第5969號 ____________ 有關欠債人何添的事宜 有關債權人英國保誠保險有限公司的單方面申請 ____________ 主審法官：高等法院原訟法庭法官關淑馨公開聆訊 聆訊日期：2006年10月31日 判案書日期：2006年10月31日 判案書 這個破產呈請，由英國保誠保險有限公司提出，要求法庭就何添先生作出破產命令。 何先生以前為呈請人服務，他是一名保險從業員。2000 年12月期間，何先生加入呈請人工作，作為保險代理，簽署了 +四份協議，同意呈請人定下的條款，給予他預支佣金，和日後在賺取的佣金扣除。 由於何先生未能達到呈請人定下的工作指標，呈請人在2002年1月1日，終止了對何先生預支佣金的安排。根據雙方簽訂的協議，何先生有法律責任，償還之前預支的佣金。 2002年8月12日，何先生在呈請人發給他的信件上簽署，確認在2002年7月，他欠下呈請人的金額為HK$114,701.74。 2004年3月8日，呈請人又去信何先生，通知他直至2003年11月30日，他所欠的金額為HK$97,058.26。假若何先生仍未達到呈請人工作指標的要求，呈請人有權在2005年1月31日或之前終止他的代理協議。一旦終止協議，何先生即需全數歸還欠下呈請人的債項。不過如果何先生達到呈請人工作指標的要求，而呈請人又願意在2005年2月1日或之後，繼續委任他為保險代理的話，呈請人同意不追討他欠下的債項。上述信件的條款，何先生一一接受。在2004年3月9日，他在呈請人發給他的信件，加簽確認。 由於何先生一直沒有達到呈請人工作上的要求，2004年10月20日，呈請人終止了他的委任，由2004年10月19日生效。 根據2004年3月9日雙方達成的協議，何先生需要即時清還欠下呈請人的款項。2004年11月17日，呈請人去信何先生，要 +求償還HK$99,031.86，其中HK$97,058.26為上述追討預支佣金的欠款，另外HK$1,973.60是其他的欠款。 2004年11月26日，呈請人發信何先生，提出以12個月期限分期還款的建議，但是何先生沒有接受。2005年8月11日，呈請人在報章刊登法定要求償債書，向何先生追討HK$99,031.86。2006年7月28日，呈請人入禀高等法院，要求頒令何先生破產。呈請書在2006年8月14日，以面交方式送達何先生。 其後，何先生與呈請人接觸，呈請人又提出了新的還款建議，但何先生都沒有接受。 何先生對於呈請人追討的債項，並無任何實質的爭議，也沒有能力償還。在這情況下，本席必須作出破產命令。呈請人的訟費，將由何先生的資產支付。 （關淑馨） 高等法院原訟法庭法官 呈請人：由普衡律師事務所蕭泳茵律師代表出席 債務人：何添先生，無律師代表，親自應訊 破產管理署：由該署張偉顏大律師代表出席 + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/zh_cases_hkcfi/2006_HKCFI_1998/case.json b/zh_cases_hkcfi/2006_HKCFI_1998/case.json new file mode 100644 index 0000000..3b0a5f3 --- /dev/null +++ b/zh_cases_hkcfi/2006_HKCFI_1998/case.json @@ -0,0 +1,26 @@ +{ + "Date": "31 Oct, 2006", + "Action No.": "HCB5969/2006", + "Neutral Cit.": "[2006] HKCFI 1998", + "case_title": "有關何添的事宜", + "page_title": "有關何添的事宜 | [2006] HKCFI 1998 | HKLII", + "case_history": [ + { + "name": "HCB5969/2006", + "link": "https://www.hklii.hk/tc/appealhistory/HCB/2006/5969" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkcfi/2006/1998", + "neutral_cit": "[2006] HKCFI 1998", + "court_code": "HKCFI", + "content": "HCB005969/2006 有關何添的事宜\nHCB 5969/2006\n香港特別行政區\n高等法院原訟法庭\n民事司法管轄權\n高等法院破產案件2006年第5969號\n______________________\n有關欠債人何添的事宜\n有關債權人英國保誠保險有限公司的單方面申請\n______________________\n主審法官 ： 高等法院原訟法庭法官關淑馨公開聆訊\n聆訊日期 ： 2006年10月31日\n判案書日期 ： 2006年10月31日\n判案書\n1.\n這個破產呈請，由英國保誠保險有限公司提出，要求法庭就何添先生作出破產命令。\n2.\n何先生以前為呈請人服務，他是一名保險從業員。2000 年12月期間，何先生加入呈請人工作，作為保險代理，簽署了四份協議，同意呈請人定下的條款，給予他預支佣金，和日後在賺取的佣金扣除。\n3.\n由於何先生未能達到呈請人定下的工作指標，呈請人在2002年1月1日，終止了對何先生預支佣金的安排。根據雙方簽訂的協議，何先生有法律責任，償還之前預支的佣金。\n4.\n2002年8月12日，何先生在呈請人發給他的信件上簽署，確認在2002年7月，他欠下呈請人的金額為HK$114,701.74。\n5.\n2004年3月8日，呈請人又去信何先生，通知他直至2003年11月30日，他所欠的金額為HK$97,058.26。假若何先生仍未達到呈請人工作指標的要求，呈請人有權在2005年1月31日或之前終止他的代理協議。一旦終止協議，何先生即需全數歸還欠下呈請人的債項。不過如果何先生達到呈請人工作指標的要求，而呈請人又願意在2005年2月1日或之後，繼續委任他為保險代理的話，呈請人同意不追討他欠下的債項。上述信件的條款，何先生一一接受。在2004年3月9日，他在呈請人發給他的信件，加簽確認。\n6.\n由於何先生一直沒有達到呈請人工作上的要求，2004年10月20日，呈請人終止了他的委任，由2004年10月19日生效。\n7.\n根據2004年3月9日雙方達成的協議，何先生需要即時清還欠下呈請人的款項。2004年11月17日，呈請人去信何先生，要求償還HK$99,031.86，其中HK$97,058.26為上述追討預支佣金的欠款，另外HK$1,973.60是其他的欠款。\n8.\n2004年11月26日，呈請人發信何先生，提出以12個月期限分期還款的建議，但是何先生沒有接受。2005年8月11日，呈請人在報章刊登法定要求償債書，向何先生追討HK$99,031.86。2006年7月28日，呈請人入禀高等法院，要求頒令何先生破產。呈請書在2006年8月14日，以面交方式送達何先生。\n9.\n其後，何先生與呈請人接觸，呈請人又提出了新的還款建議，但何先生都沒有接受。\n10.\n何先生對於呈請人追討的債項，並無任何實質的爭議，也沒有能力償還。在這情況下，本席必須作出破產命令。呈請人的訟費，將由何先生的資產支付。\n（關淑馨）\n高等法院原訟法庭法官\n呈請人 ： 由普衡律師事務所蕭泳茵律師代表出席\n債務人 ： 何添先生，無律師代表，親自應訊\n破產管理署 ： 由該署張偉顏大律師代表出席", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2006/HCB005969_2006.doc", + "file_name": "HCB005969_2006.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkcfi/2010_HKCFI_1661/HCMA000278_2010_abp_fallback.txt b/zh_cases_hkcfi/2010_HKCFI_1661/HCMA000278_2010_abp_fallback.txt new file mode 100644 index 0000000..a30fa4e --- /dev/null +++ b/zh_cases_hkcfi/2010_HKCFI_1661/HCMA000278_2010_abp_fallback.txt @@ -0,0 +1,6 @@ + HCMA 278/2010 香港特別行政區 高等法院原訟法庭 刑事上訴司法管轄權 定罪上訴 案件編號：高院裁判法院上訴案件2010年第278號 （原觀塘裁判法院刑事案件2009年第7796號） ____________ 答辯人 香港特別行政區 訴 上訴人 郭宇謙 ____________ 主審法官 ：高等法院原訟法庭法官馮驊 聆訊日期 ：2010年10月7日 判案日期 ：2010年10月7日 判案理由書日期 ：2010年10月11日 判案理由書 上訴人郭宇謙在裁判官席前經審訊被裁定一項猥褻侵犯罪有罪，他針對定罪上訴。 本席即席批准上訴，現頒下理由。 +控方證據 控方第一證人及男友（控方第二證人）在街上攜手而行。第一證人見上訴人從其左前方行來，第一證人閃避，好讓上訴人有足夠位置通過。當上訴人經過第一證人身邊時，第一證人感覺「股罅」（即股溝）被手指按下，歷時1秒。第一證人感覺有3隻手指（手掌一面）按下她的股溝，其中一隻比較用力。第一證人隨即向控方第二證人說被摸。第二證人與上訴人對質，然後報警。 辯方案情 上訴人作供，他否認非禮。上訴人指當時急步行走，「手捹捹」般兩手搖擺。他感覺碰到第一證人，但沒有停下道歉。當被第二證人上前截停時，上訴人否認非禮，並即解釋不小心碰到第一證人，一場誤會。 裁判官的理由 原審時，辯方律師質疑控方證據上的矛盾，包括： (1) 第一證人向在場女警指稱上訴人用手按她右邊臀部，及後第一證人錄取口供時，則說她臀部中間股溝被人按下。第一證人在庭上解釋，只是當時沒有仔細向女警說出被觸碰部位； (2) 第二證人作供時指出第一證人在警署時並不肯定是否上訴人觸碰她，擔心冤枉好人。裁判官問第二證人不肯定的是甚麼，第二證人則指第一證人不肯定上訴人身分。 裁判官認為以上分歧並不重要，因此裁定罪名成立。 +上訴理由 完備上訴理由概括如下： (1) 裁判官錯誤地裁定上訴人的行為有猥褻成分及/或有猥褻意圖； 裁判官沒有充分考慮控方第一證人被觸碰位置的分歧； 裁判官以上訴人在警誡口供中說過他的右手觸碰到控方第一證人的臀部以支持定罪，並不正確； 裁判官沒有充分考慮意外或無意識觸碰。 討論 代表答辯人的陳律師指控方第一證人不肯定的是上訴人身分。基於身分並無爭議，因此，這點並不重要。 代表上訴人的吳大律師則指出正因爲上訴人身分由始至終沒有爭議，所謂第一證人不肯定上訴人的身分根本全無理據。況且，第一證人未被重召親自説明她不肯定的究竟是甚麼，及/或基於身分沒有爭議之下，爲何她說不肯定上訴人的身分。因此，證據上有缺餘，未能釋疑。 就被觸碰位置，陳律師亦承認很難解釋為何觸碰點之描述不同，但極有可能第一證人因為尷尬沒有說出詳情。然而，第一證人指她是被手掌一面而非手背一面的手指按到，則無論是右邊臀部或中間股溝，兩者均必然並非意外。 +吳大律師則指證據沒有交代當上訴人行近第一證人時，第一證人怎樣轉身。若上訴人因為急步及雙手擺動而觸碰到第一證人的右邊臀部，則不能在不知雙方之相對位置下，單以手掌一面的接觸而排除意外。 吳大律師亦指出股溝與右邊臀部區別甚大，股溝被按會即時令人排除意外。第一證人既然當衆投訴被非禮，則沒有理由不第一時間提及股溝。 況且，第一證人在錄取口供時非常詳細，還以女警身軀作示範，則無理由不交待為何在現場說出右邊臀部而非中間臀溝。 本席認為上訴人所提的兩個疑點均屬重要，第一證人都沒有作出合理解釋。 基於上述理由，上訴得直。 （馮驊） 高等法院原訟法庭法官 答辯人：由律政司高級檢控官陳詠嫻代表香港特別行政區 上訴人：由鄧黃張律師事務所轉聘吳達輝大律師代表 + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/zh_cases_hkcfi/2010_HKCFI_1661/case.json b/zh_cases_hkcfi/2010_HKCFI_1661/case.json new file mode 100644 index 0000000..c808fd2 --- /dev/null +++ b/zh_cases_hkcfi/2010_HKCFI_1661/case.json @@ -0,0 +1,26 @@ +{ + "Date": "11 Oct, 2010", + "Action No.": "HCMA278/2010", + "Neutral Cit.": "[2010] HKCFI 1661", + "case_title": "香港特別行政區 訴 郭宇謙", + "page_title": "香港特別行政區 訴 郭宇謙 | [2010] HKCFI 1661 | HKLII", + "case_history": [ + { + "name": "HCMA278/2010", + "link": "https://www.hklii.hk/tc/appealhistory/HCMA/2010/278" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkcfi/2010/1661", + "neutral_cit": "[2010] HKCFI 1661", + "court_code": "HKCFI", + "content": "HCMA000278/2010 香港特別行政區 訴 郭宇謙\nHCMA 278/2010\n香港特別行政區\n高等法院原訟法庭\n刑事上訴司法管轄權\n定罪上訴\n案件編號：高院裁判法院上訴案件2010年第278號\n（原觀塘裁判法院刑事案件2009年第7796號）\n____________\n答辯人\n香港特別行政區\n訴\n上訴人\n郭宇謙\n____________\n主審法官 ：高等法院原訟法庭法官馮驊\n聆訊日期 ：2010年10月7日\n判案日期 ：2010年10月7日\n判案理由書日期 ：2010年10月11日\n判案理由書\n1.\n上訴人郭宇謙在裁判官席前經審訊被裁定一項猥褻侵犯罪有罪，他針對定罪上訴。\n2.\n本席即席批准上訴，現頒下理由。\n控方證據\n3.\n控方第一證人及男友（控方第二證人）在街上攜手而行。第一證人見上訴人從其左前方行來，第一證人閃避，好讓上訴人有足夠位置通過。當上訴人經過第一證人身邊時，第一證人感覺「股罅」（即股溝）被手指按下，歷時1秒。第一證人感覺有3隻手指（手掌一面）按下她的股溝，其中一隻比較用力。第一證人隨即向控方第二證人說被摸。第二證人與上訴人對質，然後報警。\n辯方案情\n4.\n上訴人作供，他否認非禮。上訴人指當時急步行走，「手捹捹」般兩手搖擺。他感覺碰到第一證人，但沒有停下道歉。當被第二證人上前截停時，上訴人否認非禮，並即解釋不小心碰到第一證人，一場誤會。\n裁判官的理由\n5.\n原審時，辯方律師質疑控方證據上的矛盾，包括：\n(1) 第一證人向在場女警指稱上訴人用手按她右邊臀部，及後第一證人錄取口供時，則說她臀部中間股溝被人按下。第一證人在庭上解釋，只是當時沒有仔細向女警說出被觸碰部位；\n(2) 第二證人作供時指出第一證人在警署時並不肯定是否上訴人觸碰她，擔心冤枉好人。裁判官問第二證人不肯定的是甚麼，第二證人則指第一證人不肯定上訴人身分。\n6.\n裁判官認為以上分歧並不重要，因此裁定罪名成立。\n上訴理由\n7.\n完備上訴理由概括如下：\n(1) 裁判官錯誤地裁定上訴人的行為有猥褻成分及/或有猥褻意圖；\n(2) 裁判官沒有充分考慮控方第一證人被觸碰位置的分歧；\n(3) 裁判官以上訴人在警誡口供中說過他的右手觸碰到控方第一證人的臀部以支持定罪，並不正確；\n(4) 裁判官沒有充分考慮意外或無意識觸碰。\n討論\n8.\n代表答辯人的陳律師指控方第一證人不肯定的是上訴人身分。基於身分並無爭議，因此，這點並不重要。\n9.\n代表上訴人的吳大律師則指出正因爲上訴人身分由始至終沒有爭議，所謂第一證人不肯定上訴人的身分根本全無理據。況且，第一證人未被重召親自説明她不肯定的究竟是甚麼，及/或基於身分沒有爭議之下，爲何她說不肯定上訴人的身分。因此，證據上有缺餘，未能釋疑。\n10.\n就被觸碰位置，陳律師亦承認很難解釋為何觸碰點之描述不同，但極有可能第一證人因為尷尬沒有說出詳情。然而，第一證人指她是被手掌一面而非手背一面的手指按到，則無論是右邊臀部或中間股溝，兩者均必然並非意外。\n11.\n吳大律師則指證據沒有交代當上訴人行近第一證人時，第一證人怎樣轉身。若上訴人因為急步及雙手擺動而觸碰到第一證人的右邊臀部，則不能在不知雙方之相對位置下，單以手掌一面的接觸而排除意外。\n12.\n吳大律師亦指出股溝與右邊臀部區別甚大，股溝被按會即時令人排除意外。第一證人既然當衆投訴被非禮，則沒有理由不第一時間提及股溝。\n13.\n況且，第一證人在錄取口供時非常詳細，還以女警身軀作示範，則無理由不交待為何在現場說出右邊臀部而非中間臀溝。\n14.\n本席認為上訴人所提的兩個疑點均屬重要，第一證人都沒有作出合理解釋。\n15.\n基於上述理由，上訴得直。\n（馮驊）\n高等法院原訟法庭法官\n答辯人：由律政司高級檢控官陳詠嫻代表香港特別行政區\n上訴人：由鄧黃張律師事務所轉聘吳達輝大律師代表", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2010/HCMA000278_2010.doc", + "file_name": "HCMA000278_2010.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkcfi/2016_HKCFI_636/HCMA000717_2015_abp_fallback.txt b/zh_cases_hkcfi/2016_HKCFI_636/HCMA000717_2015_abp_fallback.txt new file mode 100644 index 0000000..c761eaf --- /dev/null +++ b/zh_cases_hkcfi/2016_HKCFI_636/HCMA000717_2015_abp_fallback.txt @@ -0,0 +1,7 @@ +HCMA 717/2015 香港特別行政區 高等法院原訟法庭 刑事上訴司法管轄權 定罪上訴 案件編號：裁判法院上訴案件2015年第717號 (原粉嶺裁判法院刑事案件2015年第2882號) ________________________ 答辯人 香港特別行政區 訴 上訴人 邱陽 ________________________ 主審法官 ：高等法院原訟法庭暫委法官陳廣池 聆訊日期 ：2016年1月28日 與2016年2月15日 判案書日期 ：2016年4月15日 判 案 書 上訴人否認一項侵害人身罪，經裁判官周至偉席前審訊後，被判罪名成立，判監2星期及賠償$2,000給受害人。上訴人不服定罪，提出上訴。上訴人在原審時由當值律師代表，在本上訴聆訊則沒有律師代表。 +控方案情 第一控方證人(受害人)是港鐵職員，案發當日身穿制服。他和同事在落馬洲站負責人群控制。第一控方證人在出境大堂看見上訴人在7 - 11店鋪外亦是港鐵範圍內通道蹲在地上，用數個膠袋在執拾食物，把食物由一個膠袋放入另一個。 第一控方證人上前表露身份，叫上訴人不能停留。上訴人把一個膠袋撕爛，引致食物散落在地上。第一控方證人勸上訴人不要生事，叫上訴人前行。上訴人不斷以粗口辱罵第一控方證人。第一控方證人作出多番警告但上訴人亦不停謾罵，聲稱他是向天講粗口。第一控方證人要求上訴人出示身份證明文件，打算票控上訴人在港鐵範圍內講粗口。上訴人拒絕。第一控方證人報警，警員到達後，上訴人交出身份證。第一控方證人發出擬檢控通知書給上訴人。大家離開現場，但走在第一控方證人前面的上訴人突然折返到前者面前，向他講了粗口，並以右手推第一控方證人，致使他失去重心跌在地上。警員再折返而拘捕上訴人。醫生診斷第一控方證人，說他背部受創。 辯方案情 上訴人選擇作供，亦傳召一名女性友人作供。他說因膠袋爛了，所以在7-11店鋪外執食物。第一控方證人叫他不能停留。上訴人的解釋不為接納。上訴人自覺委屈，不肯出示身份證。上訴人說他只說了一次粗口。上訴人拿出手機拍攝。上訴人說第一控方證人在沒有任何警告下便票控上訴人講粗口。第一控方證人在完成票控後，在上訴人的左耳邊說：「呢班係我的伙記，我要玩死你好容易。」並對上訴人講粗口。上訴人對警員投訴，但第一控方證人突然「呀」一聲自己坐在地上，並隨即躺 +下。上訴人說他全程都沒有接觸第一控方證人的身體。上訴人不爭議他和第一控方證人有所爭拗，但否認推撞後者。上訴人指稱第一控方證人假扮跌倒。 上訴理據 上訴人在2015年9月17日所填寫的表格101只引用所列印的字句提出上訴。上訴人早前要求把一些上訴人自己用手機來錄取的片段呈堂。本席予以批准並把上訴案件押後至2016年2月15日。有關的片段作為新增證物，有關的記憶棒為DP1，而另外3段錄像為DP2至DP3。 在本上訴聆訊，上訴人指裁判官沒有細心觀察有關錄像。上訴人開始時並沒有講粗口，後來才講粗口。上訴人說裁判官不應接納第一控方證人的證供。他講大話。第一控方證人因懷恨在心，亦曾用粗口罵上訴人。第一控方證人突然坐在地上，假扮跌倒。上訴人說當時有4名警員在附近。上訴人主要是說第一控方證人「屈」他。上訴人根本沒有觸碰第一控方證人。 上訴理據的討論 本席觀看新增的以上訴人手機拍攝的錄像，最後的錄像片段只看見第一控方證人已經坐在地上，而本席相信是上訴人的聲音，屢屢說不要「屈」他。其他的錄像則看見一些混亂的情況，以及上訴人對港鐵職員和到場的警員的不合作態度。事件由一宗較細微的紛爭開始，爭拗則逐步升溫。問題是上訴人是被控一項襲擊罪。那麼案件的重點在上訴人是否有觸碰第一控方證人引致後者跌倒。事實上，就算第一控方證人沒有跌倒，如果控方有證據指上訴人蓄意地觸碰第一控方證人，第一控方證人有沒有 +跌倒或受傷並不是關鍵。有沒有跌倒、有沒有受傷只涉及刑罰及求情的因素。 裁判案件的上訴是以重審形式處理。裁判官耳聞目睹証人作供，自然有其優勢來評審証人的可信性和可靠性。 第一控方證人的傷勢報告並沒有爭議。醫生說第一控方證人「下背部有觸痛，能正常活動，沒有神經性病徵；X光檢查顯示有退化的情況。臨時診斷：背部受創。」 裁判官在其判決理由書中詳細分析控辯雙方的證言，最後說「總括來說，被告人與其證人孫小姐的證供前後不一致，又互相矛盾，不合情理，令人難以相信。」 對於控方證人，裁判官說：「兩名控方證人的證供清晰簡潔。…本席認為控方證人的證供清晰、有力，盤問下不受動搖。」 裁判官亦認為第一控方證人「竟然仍會選擇自己坐下而不理會在此情況下他的行為甚有可能被警員看到，以固有可能性而言，本席認為不甚可能。」 裁判官考慮了上訴人和辯方證人有良好的紀錄，但裁定他們的案情及證據「不可靠不可信」不為接受。反之，裁判官接納2名控方證人誠實可靠，亦信納他們的說法為事實，在此情況下，本席認為裁判官的事實裁斷並沒有不妥當的地方。上訴人所新增呈堂的錄像亦不能提出新證據支持上訴人的說法，指稱第一控方證人假裝跌在地上。事實上，本席同意原審裁判官所言，在那一刻已經有其他港鐵職員和警員在場，第一控方證 +人犯不著甘冒妨礙司法公正，假裝被襲而誣告上訴人。本席認為就算上訴人推第一控方證人一下而後者並沒有跌到，上訴人仍然可以干犯了普通襲擊罪。第一控方證人有沒有跌倒或受傷並不是關鍵。第一控方證人所指證上訴人推他一把已經足夠構成普通襲擊的罪行。 結論 基於上述原因，本席駁回上訴，維持原判。本席在考慮本案性質和上訴人的個人情況後，決定就訟費不作出任何頒令。 (陳廣池) 高等法院原訟法庭暫委法官 答辯人：由律政司高級檢控官馮美琪代表香港特別行政區 上訴人：沒有律師代表，親自應訊 + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/zh_cases_hkcfi/2016_HKCFI_636/case.json b/zh_cases_hkcfi/2016_HKCFI_636/case.json new file mode 100644 index 0000000..1f25220 --- /dev/null +++ b/zh_cases_hkcfi/2016_HKCFI_636/case.json @@ -0,0 +1,26 @@ +{ + "Date": "15 Apr, 2016", + "Action No.": "HCMA717/2015", + "Neutral Cit.": "[2016] HKCFI 636", + "case_title": "香港特別行政區 訴 邱陽", + "page_title": "香港特別行政區 訴 邱陽 | [2016] HKCFI 636 | HKLII", + "case_history": [ + { + "name": "HCMA717/2015", + "link": "https://www.hklii.hk/tc/appealhistory/HCMA/2015/717" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkcfi/2016/636", + "neutral_cit": "[2016] HKCFI 636", + "court_code": "HKCFI", + "content": "HCMA717/2015 香港特別行政區 訴 邱陽\nHCMA 717/2015\n香港特別行政區\n高等法院原訟法庭\n刑事上訴司法管轄權\n定罪上訴\n案件編號：裁判法院上訴案件2015年第717號\n(原粉嶺裁判法院刑事案件2015年第2882號)\n________________________\n答辯人\n香港特別行政區\n訴\n上訴人\n邱陽\n________________________\n主審法官 ： 高等法院原訟法庭暫委法官陳廣池\n聆訊日期 ： 2016年1月28日 與2016年2月15日\n判案書日期 ： 2016年4月15日\n判\n案\n書\n1.\n上訴人否認一項侵害人身罪\n[1]\n，經裁判官周至偉席前審訊後，被判罪名成立，判監2星期及賠償$2,000給受害人。上訴人不服定罪，提出上訴。上訴人在原審時由當值律師代表，在本上訴聆訊則沒有律師代表。\n控方案情\n2.\n第一控方證人(受害人)是港鐵職員，案發當日身穿制服。他和同事在落馬洲站負責人群控制。第一控方證人在出境大堂看見上訴人在7 - 11店鋪外亦是港鐵範圍內通道蹲在地上，用數個膠袋在執拾食物，把食物由一個膠袋放入另一個。\n3.\n第一控方證人上前表露身份，叫上訴人不能停留。上訴人把一個膠袋撕爛，引致食物散落在地上。第一控方證人勸上訴人不要生事，叫上訴人前行。上訴人不斷以粗口辱罵第一控方證人。第一控方證人作出多番警告但上訴人亦不停謾罵，聲稱他是向天講粗口。第一控方證人要求上訴人出示身份證明文件，打算票控上訴人在港鐵範圍內講粗口。上訴人拒絕。第一控方證人報警，警員到達後，上訴人交出身份證。第一控方證人發出擬檢控通知書給上訴人。大家離開現場，但走在第一控方證人前面的上訴人突然折返到前者面前，向他講了粗口，並以右手推第一控方證人，致使他失去重心跌在地上。警員再折返而拘捕上訴人。醫生診斷第一控方證人，說他背部受創。\n辯方案情\n4.\n上訴人選擇作供，亦傳召一名女性友人作供。他說因膠袋爛了，所以在7-11店鋪外執食物。第一控方證人叫他不能停留。上訴人的解釋不為接納。上訴人自覺委屈，不肯出示身份證。上訴人說他只說了一次粗口。上訴人拿出手機拍攝。上訴人說第一控方證人在沒有任何警告下便票控上訴人講粗口。第一控方證人在完成票控後，在上訴人的左耳邊說：「呢班係我的伙記，我要玩死你好容易。」並對上訴人講粗口。上訴人對警員投訴，但第一控方證人突然「呀」一聲自己坐在地上，並隨即躺下。上訴人說他全程都沒有接觸第一控方證人的身體。上訴人不爭議他和第一控方證人有所爭拗，但否認推撞後者。上訴人指稱第一控方證人假扮跌倒。\n上訴理據\n5.\n上訴人在2015年9月17日所填寫的表格101只引用所列印的字句提出上訴。上訴人早前要求把一些上訴人自己用手機來錄取的片段呈堂。本席予以批准並把上訴案件押後至2016年2月15日。有關的片段作為新增證物，有關的記憶棒為DP1，而另外3段錄像為DP2至DP3。\n6.\n在本上訴聆訊，上訴人指裁判官沒有細心觀察有關錄像。上訴人開始時並沒有講粗口，後來才講粗口。上訴人說裁判官不應接納第一控方證人的證供。他講大話。第一控方證人因懷恨在心，亦曾用粗口罵上訴人。第一控方證人突然坐在地上，假扮跌倒。上訴人說當時有4名警員在附近。上訴人主要是說第一控方證人「屈」他。上訴人根本沒有觸碰第一控方證人。\n上訴理據的討論\n7.\n本席觀看新增的以上訴人手機拍攝的錄像，最後的錄像片段只看見第一控方證人已經坐在地上，而本席相信是上訴人的聲音，屢屢說不要「屈」他。其他的錄像則看見一些混亂的情況，以及上訴人對港鐵職員和到場的警員的不合作態度。事件由一宗較細微的紛爭開始，爭拗則逐步升溫。問題是上訴人是被控一項襲擊罪。那麼案件的重點在上訴人是否有觸碰第一控方證人引致後者跌倒。事實上，就算第一控方證人沒有跌倒，如果控方有證據指上訴人蓄意地觸碰第一控方證人，第一控方證人有沒有跌倒或受傷並不是關鍵。有沒有跌倒、有沒有受傷只涉及刑罰及求情的因素。\n8.\n裁判案件的上訴是以重審形式處理。裁判官耳聞目睹証人作供，自然有其優勢來評審証人的可信性和可靠性。\n9.\n第一控方證人的傷勢報告並沒有爭議\n[2]\n。醫生說第一控方證人「下背部有觸痛，能正常活動，沒有神經性病徵；X光檢查顯示有退化的情況。臨時診斷：背部受創。」\n10.\n裁判官在其判決理由書中詳細分析控辯雙方的證言，最後說「總括來說，被告人與其證人孫小姐的證供前後不一致，又互相矛盾，不合情理，令人難以相信。」\n[3]\n對於控方證人，裁判官說：「兩名控方證人的證供清晰簡潔。…本席認為控方證人的證供清晰、有力，盤問下不受動搖。」\n[4]\n裁判官亦認為第一控方證人「竟然仍會選擇自己坐下而不理會在此情況下他的行為甚有可能被警員看到，以固有可能性而言，本席認為不甚可能。」\n[5]\n11.\n裁判官考慮了上訴人和辯方證人有良好的紀錄，但裁定他們的案情及證據「不可靠不可信」不為接受。反之，裁判官接納2名控方證人誠實可靠，亦信納他們的說法為事實，在此情況下，本席認為裁判官的事實裁斷並沒有不妥當的地方。上訴人所新增呈堂的錄像亦不能提出新證據支持上訴人的說法，指稱第一控方證人假裝跌在地上。事實上，本席同意原審裁判官所言，在那一刻已經有其他港鐵職員和警員在場，第一控方證人犯不著甘冒妨礙司法公正，假裝被襲而誣告上訴人。本席認為就算上訴人推第一控方證人一下而後者並沒有跌到，上訴人仍然可以干犯了普通襲擊罪。第一控方證人有沒有跌倒或受傷並不是關鍵。第一控方證人所指證上訴人推他一把已經足夠構成普通襲擊的罪行。\n結論\n12.\n基於上述原因，本席駁回上訴，維持原判。本席在考慮本案性質和上訴人的個人情況後，決定就訟費不作出任何頒令。\n(陳廣池)\n高等法院原訟法庭暫委法官\n答辯人：由律政司高級檢控官馮美琪代表香港特別行政區\n上訴人：沒有律師代表，親自應訊\n[1]\n違反第212章第40條\n[2]\n承認事實第6段(上訴宗卷第9頁)，醫療報告(上訴宗卷第21-23頁)\n[3]\n判決理由書第21段(上訴宗卷第17頁)\n[4]\n同上第22段(上訴宗卷第17-18頁)\n[5]\n同上第25段(上訴宗卷第18-19頁)", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2015/HCMA000717_2015.doc", + "file_name": "HCMA000717_2015.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkcfi/2024_HKCFI_863/case.json b/zh_cases_hkcfi/2024_HKCFI_863/case.json new file mode 100644 index 0000000..b65d815 --- /dev/null +++ b/zh_cases_hkcfi/2024_HKCFI_863/case.json @@ -0,0 +1,26 @@ +{ + "Date": "21 Mar, 2024", + "Action No.": "HCB316/2024", + "Neutral Cit.": "[2024] HKCFI 863", + "case_title": "有關高景波的事宜", + "page_title": "有關高景波的事宜 | [2024] HKCFI 863 | HKLII", + "case_history": [ + { + "name": "HCB316/2024", + "link": "https://www.hklii.hk/tc/appealhistory/HCB/2024/316" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkcfi/2024/863", + "neutral_cit": "[2024] HKCFI 863", + "court_code": "HKCFI", + "content": "HCB316/2024 有關高景波的事宜\nHCB 316/2024\n[2024] HKCFI 863\n香港特別行政區\n高等法院\n原訟法庭\n高院破產案件編號2024年第316號\n________________________\n有關：\n高景波，債務人\n單方面申請：\n王欽賢，呈請人\n________________________\n主審法官：\n2024年3月18日\n聆訊日期:\n2024年3月18日\n判決日期:\n2024年3月18日\n判決理由書日期:\n2024年3月21日\n判決理由書\n1.\n呈請人王欽賢(「\n呈請人\n」)在2024年1月12日提交破產呈請書，要求法庭對債務人高景波(「\n債務人\n」)作出破產令(「\n呈請書\n」)。在考慮過呈請人的誓章及其代表大律師的口頭陳述，以及債務人於2024年3月7日的誓章中所列出的反對理由，本席對債務人作出慣常破產令，並另行領下書面理由。以下為本席對債務人作出破產令的理由。\n2.\n債務人並沒有出席聆訊。但在聆訊開始前由他人提交一頁信件，信中說 “本人有重要經營事項，目前正在北京辦理事務，無法返回香港參加庭審事項，本人擬呈請法庭提出延期審理”。本席認為，債務人既沒有以傳票方式提出延期審理的申請，亦沒有以誓章形式提出可被信納的延期審理的理由，明顯只為拖延時間而缺席聆訊。正如代表呈請人的大律師指出，債務人有出席於2024年3月12日聆案官席前的聆訊，並且清楚知道法庭會在3月18日再就呈請書作聆訊，因此，法庭不應因為債務人故意不出席聆訊而押後審理。\n3.\n呈請書是基於債務人沒有依照日期為2023年9月27日的法定要求償債書(「\n償債書\n」)送達後21天的限期內向呈請人支付港幣 $223,867.50 (「\n該債項\n」)而提出的。但根據債務人的說法，他是於2023年10月17日才收到償債書的。無論如何，由於債務人並沒有在收到償債書後的21天的限期內支付該債項，根據《破產條例》第6A(1)(a)  條，即被視為看似無能力償付該債項。\n4.\n該債項源自區域法院在DCCJ 1408/2023一案（「\n區院訴訟\n」），法庭在2023年9月14日命令債務人須向呈請人立即支付訟費港幣 $223,867.50。\n5.\n債務人於 2023年10月17日向高等法院原訟法庭提出申請，請求法庭將償債書作廢(「\n作廢申請\n」)。在提出作廢申請時，債務人存檔了一份《支持將法定要求償債書作廢申請的誓章》，正文只有1頁，原文為：\n“本人 不承認該債項。王欽賢：失實陳述、侵權、債項。利用我的好心來誣陷我”。\n6.\n債務人的誓章有一個長達101頁的附件。附件內包含一些文件，似乎曾於其他案件中存檔，包括 (1)  SCTC 10381/2023；(2)  HCMP 1598/2023；及 (3)  區院訴訟。\n7.\n於2023年12月20日，原訟法庭暫委法官徐韻華在考慮過雙方提出的證據以及陳詞後，決定撤銷債務人的作廢申請，並且判定債務人需要向呈請人支付作廢申請的訟費。撤銷申請的理由已在判決書\n[2024] HKCFI 92\n中列出(「\n判決書\n」)。\n8.\n債務人就呈請書提出以下反對理由：\n“1、本人需要額外的時間申請法律援助及暫緩執行，因為這項債權是基於不實的質控所頒發的臨時禁制令而發出的，本人因不熟悉法律程序沒有對該項禁制令作出反對、上訴或暫緩執行；\n2、 王欽賢對本人有商業欺詐的嫌疑；\n3、 王欽賢尚有欠本人其他的債權，金額足以抵消債權，清單本人將另行附上，見下頁。\n4、 本人於2024年3月5日上庭 （民事訴訟2023年第1408號），庭上法官對本人講解了一些法律程序，本人將循合法程序申請推翻2023年9月14日法院判決（案件DCCJ 1408/2023）本人支付223,867.50的命令。”\n9.\n在債務人提交的附件，只有有第4至第8段，內容如下\n“4 因DCCJ1408/2023還在进行需现场人员出庭對证。\n王欽贤不在家用失實陈述給律師.是惡意欺壓.而對該宗案的公平審訊造成損害。\n5 侵權.債項9万SCTC10381/2023還在进行中\n6 高院HCMP1598/2023告王欽贤是懷有惡意或誤導性地誘使本人參與其一系列的投資損失80万，度尺设计的23万\n7 王欽贤是金轮天地控股有限公司（下稱*上市公司*主席\n又是靖海軒主控人800万帳目在追查中HCA1677/2023高院.張娜和王欽贤有相互受利益之嫌.挪用公款.设圈咋騙。\n8 而HCMP972/2023是王欽贤女秘书和HCB316/2024用同一家律師樓.惡意欺壓.濫用法律程序..\n恳请法官徹查合謀盜取小股東的钱”\n法律原則\n10.\n有關法庭審理破產呈請時的適用法律原則確立已久，可以歸納為以下各點。\n11.\n第一，若呈請人已經達至申請破產命令的相關要求，法庭會考慮到呈請人已經擁有要求法庭頒令債務人破產的權利及公眾利益，而對破產案件從速解決 (\nHo Ying Pat Bobby v Overseas Way (China)  Ltd\n[2011] 2 HKLRD 837, §§12-14)。\n12.\n第二，“若某項議題已在申請將法定要求償債書作廢的階段恰當提出，而且法庭在聆訊時已就此作出裁決，‘既判事項’ 的原則便起作用，即倘若情況沒有任何改變，債務人便不可在破產呈請的聆訊中，再提出該項他不獲有利裁決的議題作為論據” (\n有關陳鈺麟，\nHCB 8188/2013，2015年1月16日，第9段)。\n13.\n與上述 “既判事項” (\nres judicata\n)  原則相關的 “已裁定爭論點不容反悔” (issue estoppel)  原則，亦適用於有關已獲裁定的法律或事實議題的論點、即使與訟雙方未有在之前的案件中提出相關的爭議或論點 (\nRe Yip Kim Po (Debtor)\n[2022] 3 HKLRD 356，第18段)。相關原則為以下幾點\n[1]\n:\n(1)  如果債務人申請將法定要求償債書作廢，與訟各方應該在該申請中提出他們針對有關債項的所有論點和爭議。\n(2)  法庭不會容許債務人在破產呈請中重新提出在法定要求償債書作廢申請中已經提出及被法庭經審訊後而不被接納的論點，以免浪費法庭的時間及各方的訟費。\n(3)  如果債務人希望在破產呈請聆訊中提出法定要求償債書作廢申請時沒有提出的新論點，法庭會查究為何債務人之前不提出這些論點的理由。\n(4)  法庭只會在極為特殊的情況下，容許債務人提出相同或可以提出但並沒有提出的的論點和爭議。\n14.\n第三，即使債務人沒有提出對法定要求償債書作廢的申請，倘若債務人對法定要求償債書追討的債項作出爭議，他必須提出實質，確切而可信的證據以支持他提出的爭議，從而證明他的確具備實質的抗辯理由，而非空泛的指稱(\n有關陳鈺麟\n，第18段)。債務人需要達到的舉證標準，比一般民事訴訟中反對簡易判決申請的被告人所需要達到的更高 (\nRe Leung Cherng Jiunn (debtor)\n[2016] 1 HKLRD 850, §27(3))。\n15.\n第四，倘若債務人提出反申索或抵銷申索作為反對破產呈請的理由，他必須要證明 (1)  反申索與呈請人追討的債項是有直接的關聯；(2)  反申索必須與呈請書中追討的債項有 “相互性” (mutuality)，即反申索是呈請人需要向債務人 (而非第三者)  支付的債項，原因是沒有相互性的債項並不能抵銷呈請人的債項；(3)  反申索是一個真正，真誠，和具實質的申索；及 (4)  反申索如被法庭接納，債務人可獲得的金額不會少於呈請書中追討的債項。(\n有關李國偉，\nHCB 3550/2008,2009年3月18日, §13;\n吳木源v容明,\nHCSD 10/2001, 2001年8月9日，§9)。\n討論\n16.\n債務人在作廢申請時已有充分機會對該債項提出反對或爭議，而他所提出的理由及證據，法庭已經充分考慮並且不予接納。債務人並沒有提出任何可以被視為特殊情況的理由，要求法庭重新考慮他對該債項提出的爭議。因此，“既判事項” (\nres judicata\n)  及 “已裁定爭論點不容反悔” 的相關原則均適用於債務人，他不能在呈請書的聆訊階段，再就該債項提出爭議。\n17.\n即使債務人不受限於 “既判事項” 及 “已裁定爭論點不容反悔” 的相關原則，他在誓章中只是對債務人提出各項極為空泛的指控，但快完全未能提出任何証據以支持其指控。雖然債務人在他的誓章中提到其它案件編號，但完全沒有解釋該等案件的原告是否他本人，該等案件是否仍在進行中或已經審結，更沒有為任何一宗案件提出支持的證據。\n18.\n綜合上述原因，本席認為，債務人未能達至法律上要求反對破產呈請時需要達至的舉證標準。由於債務人沒有提出向呈請人還款的建議，因此，法庭有足夠理據向債務人作出慣常破產令。\n19.\n惟詳盡起見，本席認同並接納代表呈請人葉大律師的書面陳詞中的第17段至第27段。正如葉大律師在口頭陳述時指出，債務人在其誓章將中提到的訴訟中，(1)  SCTC 10381/2023 的原告並不是債務人，債務人只是原告人其中一位董事；(2)  HCMP 1598/2023 已於2024年2月27日經法庭審理後被撤銷 (struck out)；(3)  HCA 1677/2023 所控訴的理據 (cause of action)  是屬於公司，而並非屬於債務人本身；(4)  HCMP 972/2023 及 HCB 316/2024呈請人聘用同一間律師行作為代表律師，完全沒有不當，亦不能視作濫用法律程序。\n(陳靜芬)\n高等法院原訟法庭法官\n債務人：無律師代表，親自出庭應訊\n呈請人：由董吳謝林律師事務所轉聘葉承昊大律師代表\n[1]\nReYipKimPo,\n第21段", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2024/HCB000316_2024.docx", + "file_name": "HCB000316_2024.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkcrc/2023_HKCrC_1/case.json b/zh_cases_hkcrc/2023_HKCrC_1/case.json new file mode 100644 index 0000000..9caccf7 --- /dev/null +++ b/zh_cases_hkcrc/2023_HKCrC_1/case.json @@ -0,0 +1,34 @@ +{ + "Date": "29 Mar, 2023", + "Action No.": "CCDI894/2022", + "Neutral Cit.": "[2023] HKCrC 1", + "case_title": "有關潘浩鈺及另二人的事宜", + "page_title": "有關潘浩鈺及另二人的事宜 | [2023] HKCrC 1 | HKLII", + "case_history": [ + { + "name": "CCDI894/2022", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2022/894" + }, + { + "name": "CCDI895/2022", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2022/895" + }, + { + "name": "CCDI896/2022", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2022/896" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkcrc/2023/1", + "neutral_cit": "[2023] HKCrC 1", + "court_code": "HKCRC", + "content": "CCDI894/2022 有關潘浩鈺及另二人的事宜\nCCDI 894, 895 及 896/2022\n[2023] HKCrC 1\n香港特別行政區\n死因裁判法庭\n死因研訊編號: 894, 895 及896/2022\n死者:潘浩鈺、 許文明、 徐學培\n第一次死因研訊前檢討紀要簡述\n死因裁判官決定就以上三名死者的死亡事件召開死因研訊。\n死因研訊的目的\n按\n《死因裁判官條例》\n(以下簡稱“條例”)\n第27條\n，研訊的目的須為研究該宗死亡個案的原因及與該宗死亡個案有關的情況，而研訊中提出的證據須專注於確定死者的身份，他/她是如何、何時和在何處死亡、及死因裁判官或陪審團(如有的話)就該宗死亡個案所達致的結論。\n一般而言，若在死因研訊中所披露的證供顯示工作系統或方法上有不足之處，而該些不足導致死者死亡，死因裁判官/陪審團可在研訊中作出建議，以防止與該宗死亡事件類似的事情發生;若在死因研訊內所披露的證供有其他危及生命的情況出現，死因裁判官/陪審團亦可以作出建議。透過該些建議，促請可以具有採取適當行動權力的人士注意該些不足之處，從而作出改善。\n然而，死因研訊並不會處理責任(包括刑事及民事)的問題。該些事宜會由其他法庭處理。\n就此三宗死亡事件警方的調查進度\n死因裁判官已於2022年9月向警方下達指示就此三宗死亡事件作調查，現階段死因裁判官仍未收到警方的完整死亡調查報告。據了解，警方初步完成搜證，但基於涉及文件(包括證人供詞，專家報告及圖則等)超過八千頁，警方需時整理及研究相關證供。死因裁判官獲告知警方預計會在2023年6月底向死因裁判官呈交該報告。\n後續安排及擬定\n時間表\n若死因裁判官在收到死亡調查報告後，認為無需要求警方作出某些跟進，死因裁判官會在收到報告後兩個月內(無論如何不遲於2023年10月)召開第二次死因研訊前檢討，死因裁判官會通知所有有適當利害關係的人士及死因裁判官認為在此死因研訊中他/她的某些行爲有可能受質疑的人士出席。而死因裁判官會在不遲於第二次檢討前兩星期，向所有以上提及的相關人士提供擬定研訊證人列表及他們的書面供詞、專家報告及其他在研訊中會使用的證供列表等等。\n考慮到三宗死亡事件在同一時間地點發生，死因裁判官初步認為適合一併展開涉及三名死者死亡的死因研訊。除非另有特別情況，即條例\n第36條\n所列的情況出現，死因裁判官預計死因研訊將會在2023年年底或2024年初召開。\n死因裁判官告知死者的家屬於死因硏訊中，他們可以自己行事，亦可聘用法律代表。如經濟情況不許可，則可申請法律援助。\n2023年3月29日\n署理主任裁判官高偉雄", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2022/CCDI000894_2022.docx", + "file_name": "CCDI000894_2022.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkcrc/2024_HKCrC_1/case.json b/zh_cases_hkcrc/2024_HKCrC_1/case.json new file mode 100644 index 0000000..c65e5aa --- /dev/null +++ b/zh_cases_hkcrc/2024_HKCrC_1/case.json @@ -0,0 +1,178 @@ +{ + "Date": "28 Mar, 2024", + "Action No.": "CCDI1075/2012", + "Neutral Cit.": "[2024] HKCrC 1", + "case_title": "有關區曉霖及另三十八人的事宜", + "page_title": "有關區曉霖及另三十八人的事宜 | [2024] HKCrC 1 | HKLII", + "case_history": [ + { + "name": "CCDI1075/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1075" + }, + { + "name": "CCDI1076/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1076" + }, + { + "name": "CCDI1077/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1077" + }, + { + "name": "CCDI1078/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1078" + }, + { + "name": "CCDI1079/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1079" + }, + { + "name": "CCDI1080/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1080" + }, + { + "name": "CCDI1081/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1081" + }, + { + "name": "CCDI1082/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1082" + }, + { + "name": "CCDI1083/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1083" + }, + { + "name": "CCDI1084/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1084" + }, + { + "name": "CCDI1085/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1085" + }, + { + "name": "CCDI1086/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1086" + }, + { + "name": "CCDI1087/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1087" + }, + { + "name": "CCDI1088/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1088" + }, + { + "name": "CCDI1089/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1089" + }, + { + "name": "CCDI1090/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1090" + }, + { + "name": "CCDI1091/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1091" + }, + { + "name": "CCDI1092/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1092" + }, + { + "name": "CCDI1093/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1093" + }, + { + "name": "CCDI1094/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1094" + }, + { + "name": "CCDI1095/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1095" + }, + { + "name": "CCDI1096/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1096" + }, + { + "name": "CCDI1097/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1097" + }, + { + "name": "CCDI1098/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1098" + }, + { + "name": "CCDI1099/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1099" + }, + { + "name": "CCDI1100/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1100" + }, + { + "name": "CCDI1101/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1101" + }, + { + "name": "CCDI1102/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1102" + }, + { + "name": "CCDI1103/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1103" + }, + { + "name": "CCDI1104/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1104" + }, + { + "name": "CCDI1105/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1105" + }, + { + "name": "CCDI1106/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1106" + }, + { + "name": "CCDI1107/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1107" + }, + { + "name": "CCDI1108/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1108" + }, + { + "name": "CCDI1109/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1109" + }, + { + "name": "CCDI1110/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1110" + }, + { + "name": "CCDI1111/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1111" + }, + { + "name": "CCDI1112/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1112" + }, + { + "name": "CCDI1113/2012", + "link": "https://www.hklii.hk/tc/appealhistory/CCDI/2012/1113" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkcrc/2024/1", + "neutral_cit": "[2024] HKCrC 1", + "court_code": "HKCRC", + "content": "CCDI1075/2012 有關區曉霖及另三十八人的事宜\nCCDI 1075 至 1113/2012\n[2024] HKCrC 1\n香港特別行政區\n死因裁判法庭\n死因研訊編號: 1075 至1113/2012\n死者:\n區曉霖、鄔寶甜、張月媚、許嘉偉、李瑞蘭、郭亮瑩、蘇貴媛、\n林日、司徒英、伍彩霞、郭文曦、張頌軒、徐蓮好、王惠娥、\n林基玉、比索志豪、梁頌彩、IE HWIE WENDY、黃麗珍、黎翠玉、徐志偉、陳敏盈、陳榮基、鄭燕蘭、劉靜嵐、梁家杰、李詠梅、甄子祈、古文昌、趙少琼、林蔚懿、胡毓芬、傅玉靈、林嘉敏、劉文麗、陳巧鑾、鄭先鑫、何黃佩蘭、徐凱盈\n第一次死因研訊前檢討紀要簡述\n死因裁判官將會就以上三十九名死者的死亡事件召開死因研訊。\n死因研訊的目的\n按《死因裁判官條例》(以下簡稱“條例”)第27條，研訊的目的須為研究該宗死亡個案的原因及與該宗死亡個案有關的情況，而研訊中提出的證據須專注於確定死者的身份，他/她是如何、何時和在何處死亡、及死因裁判官或陪審團(如有的話)就該宗死亡個案所達致的結論。\n一般而言，若在死因研訊中所披露的證供顯示工作系統或方法上有不足之處，而該些不足導致死者死亡，死因裁判官/陪審團可在研訊中作出建議，以防止與該宗死亡事件類似的事情發生;若在死因研訊內所披露的證供有其他危及生命的情況出現，死因裁判官/陪審團亦可以作出建議。透過該些建議，促請可以具有採取適當行動權力的人士注意該些不足之處，從而作出改善。\n然而，死因研訊並不會處理責任(包括刑事及民事)的問題。該些事宜會由其他法庭處理。\n就此三\n十九\n宗死亡事件警方的調查進度\n死因裁判官已於2024年3月1日收到初步的死亡調查報告，當中包括329位證人的供詞/報告。警方預計會在2024年6月初向死因裁判官呈交完整死亡調查報告。\n後續安排及擬定\n時間表\n若死因裁判官在收到死亡調查報告後，認為無需要求警方作出某些跟進，死因裁判官會在收到報告後兩個月內(無論如何不遲於2024年9月)召開第二次死因研訊前檢討，死因裁判官會通知所有有適當利害關係的人士及死因裁判官認為在此死因研訊中他/她的某些行爲有可能受質疑的人士出席。而死因裁判官會在不遲於第二次檢討前21天，向所有以上提及的相關人士提供擬定研訊證人列表及他們的書面供詞、專家報告及其他在研訊中會使用的證供列表等等。\n考慮到三十九宗死亡事件在同一時間及情況發生，死因裁判官認為適合一併展開涉及三十九名死者死亡的死因研訊。鑑於本個案發生至今已有相當的日子，死因裁判官指示參與本研訊的各方，以2024年之內召開研訊為目標，如有特別的情況則另作別論。\n死因裁判官告知死者的家屬於死因硏訊中，他們可以自己行事，亦可聘用法律代表。如經濟情況不許可，則可申請法律援助。\n2024年3月28日\n死因裁判官周慧珠", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2012/CCDI001075_2012.docx", + "file_name": "CCDI001075_2012.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkct/2020_HKCT_4/case.json b/zh_cases_hkct/2020_HKCT_4/case.json new file mode 100644 index 0000000..c7bb1b7 --- /dev/null +++ b/zh_cases_hkct/2020_HKCT_4/case.json @@ -0,0 +1,32 @@ +{ + "Date": "17 Jul, 2020", + "Action No.": "CTEA1/2019", + "Neutral Cit.": "[2020] HKCT 4", + "case_title": "競爭事務委員會 對 馮氏機電工程有限公司及另八人", + "page_title": "競爭事務委員會 對 馮氏機電工程有限公司及另八人 | [2020] HKCT 4 | HKLII", + "case_history": [ + { + "name": "CTEA1/2019", + "link": "https://www.hklii.hk/tc/appealhistory/CTEA/2019/1" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkct/2020/4", + "neutral_cit": "[2020] HKCT 4", + "court_code": "HKCT", + "content": "[Chinese Translation - 中譯本]\nCTEA 1/2019\n[2020] HKCT 4\n香港特別行政區\n競爭事務審裁處\n競爭事務審裁處執行訴訟2019年第1號\n____________\n申請人\n競爭事務委員會\n對\n第一答辯人\n馮氏機電工程有限公司\n(FUNGS E&M ENGINEERING\nCOMPANY LIMITED）\n第二答辯人\n義興鐵器土木油漆工程\n(YEE HING METAL SHOP)\n第三答辯人\n張棉經營雅閣建築裝修工程公司\n(CHEUNG MIN trading as ACCORD\nCONSTRUCTION & DECORATION CO)\n第四答辯人\n興盛建築公司\n(HING SHING CONSTRUCTION COMPANY)\n第五答辯人\n聯合裝飾工程有限公司\n(LUEN HOP DECORATION\nENGINEERING COMPANY LIMITED)\n第六答辯人\n陶記營造廠有限公司\n(DAO KEE CONSTRUCTION\nCOMPANY LIMITED)\n第七答辯人\n黃偉銓 (WONG WAI CHUEN)\n第八答辯人\n黃富新 (WONG FU SAN)\n第九答辯人\n張潤錦 (CHEUNG YUN KAM)\n及\n擬成為第三方\n鮑惠蓮 (PAU WAI LIN)\n的一方\n____________\n主審法官：\n副主任法官歐陽桂如內庭聆訊\n聆訊日期：\n2020年6月26日\n判決（第2號）日期：\n2020年7月17日\n勘誤日期：\n2020年9月9日\n___________________\n勘 誤\n___________________\n就着日期為2020年7月17日的判決書（第2號），請注意以下更正:\n1.\n第 18 頁第54段: 「鮑女士有權獲第一答辯人作出彌償」，應更正為「第一答辯人有權獲鮑女士作出彌償」。\n競爭事務審裁處副主任法官\n歐陽桂如書記\n（張文杰）", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2019/CTEA000001Y_2019.docx", + "file_name": "CTEA000001Y_2019.docx", + "file_ext": ".docx", + "status": "success" + }, + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2019/CTEA000001YM_2019.docx", + "file_name": "CTEA000001YM_2019.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkct/2020_HKCT_8/case.json b/zh_cases_hkct/2020_HKCT_8/case.json new file mode 100644 index 0000000..f5bb544 --- /dev/null +++ b/zh_cases_hkct/2020_HKCT_8/case.json @@ -0,0 +1,32 @@ +{ + "Date": "14 Oct, 2020", + "Action No.": "CTEA1/2019", + "Neutral Cit.": "[2020] HKCT 8", + "case_title": "COMPETITION COMMISSION 對 FUNGS E&M ENGINEERING CO LTD 及另八人", + "page_title": "COMPETITION COMMISSION 對 FUNGS E&M ENGINEERING CO LTD 及另八人 | [2020] HKCT 8 | HKLII", + "case_history": [ + { + "name": "CTEA1/2019", + "link": "https://www.hklii.hk/tc/appealhistory/CTEA/2019/1" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkct/2020/8", + "neutral_cit": "[2020] HKCT 8", + "court_code": "HKCT", + "content": "CTEA 1/2019\n[2020] HKCT 8\nIN THE COMPETITION TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOMPETITION TRIBUNAL ENFORCEMENT ACTION NO 1 OF 2019\n________________________\nBETWEEN\nCOMPETITION COMMISSION\nApplicant\nand\nFUNGS E&M ENGINEERING COMPANY LIMITED (馮氏機電工程有限公司)\n1\nst\nRespondent\nYEE HING METAL SHOP\n(義興鐵器土木油漆工程)\n2\nnd\nRespondent\nCHEUNG MIN (張棉) trading as ACCORD CONSTRUCTION & DECORATION CO\n(雅閣建築裝修工程公司)\n3\nrd\nRespondent\nHING SHING CONSTRUCTION COMPANY\n(興盛建築公司)\n4\nth\nRespondent\nLUEN HOP DECORATION ENGINEERING COMPANY LIMITED\n(聯合裝飾工程有限公司)\n5\nth\nRespondent\nDAO KEE CONSTRUCTION COMPANY LIMITED\n(陶記營造廠有限公司)\n6\nth\nRespondent\nWONG WAI CHUEN (黃偉銓)\n7\nth\nRespondent\nWONG FU SAN (黃富新)\n8\nth\nRespondent\nCHEUNG YUN KAM (張潤錦)\n9\nth\nRespondent\n________________________\n主審法官：\n副主任法官歐陽桂如內庭審理\n判決日期：\n2020年10月14日\n勘誤日期：\n2021年1月5日\n________________________\n勘 誤\n________________________\n就着日期為2020年10月14日的判決書，請注意以下更正:\n1.\n第 4 頁第3段: 「R5、R7、R8及R9」，應更正為「R7及R8」。\n2.\n第 11 頁第22段: 「在簡介會上」，應更正為「在4月19日的簡介會上」。\n3.\n第 13 頁第33段: 「R2、R3、R4、R5、R6及R8均承認」，應更正為「R1、R2、R3、R4、R5、R6及R8均承認」。\n4.\n第 15 頁第36段: 「而R2-R8並無異議的是」，應更正為「而R1-R8並無異議的是」。\n5.\n第 19 頁第45段: 「R2-R8承認樓層編配安排…」，應更正為「R1-R8承認樓層編配安排…」。\n（張文杰）\n競爭事務審裁處副主任法官歐陽桂如書記", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2019/CTEA000001B_2019.docx", + "file_name": "CTEA000001B_2019.docx", + "file_ext": ".docx", + "status": "success" + }, + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2019/CTEA000001BM_2019.docx", + "file_name": "CTEA000001BM_2019.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkct/2020_HKCT_9/case.json b/zh_cases_hkct/2020_HKCT_9/case.json new file mode 100644 index 0000000..d753ce3 --- /dev/null +++ b/zh_cases_hkct/2020_HKCT_9/case.json @@ -0,0 +1,26 @@ +{ + "Date": "30 Oct, 2020", + "Action No.": "CTEA1/2019", + "Neutral Cit.": "[2020] HKCT 9", + "case_title": "COMPETITION COMMISSION 對 FUNGS E&M ENGINEERING CO LTD 及另八人", + "page_title": "COMPETITION COMMISSION 對 FUNGS E&M ENGINEERING CO LTD 及另八人 | [2020] HKCT 9 | HKLII", + "case_history": [ + { + "name": "CTEA1/2019", + "link": "https://www.hklii.hk/tc/appealhistory/CTEA/2019/1" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkct/2020/9", + "neutral_cit": "[2020] HKCT 9", + "court_code": "HKCT", + "content": "CTEA1D/2019 COMPETITION COMMISSION 對 FUNGS E&M ENGINEERING CO LTD 及另八人\nCTEA 1/2019\n[2020] HKCT 9\nIN THE COMPETITION TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOMPETITION TRIBUNAL ENFORCEMENT ACTION NO 1 OF 2019\n____________\nBETWEEN\nCOMPETITION COMMISSION\nApplicant\nand\nFUNGS E&M ENGINEERING COMPANY\n1\nst\nRespondent\nLIMITED (馮氏機電工程有限公司)\nYEE HING METAL SHOP\n2\nnd\nRespondent\n(義興鐵器土木油漆工程)\nCHEUNG MIN (張棉) trading as ACCORD\n3\nrd\nRespondent\nCONSTRUCTION & DECORATION CO\n(雅閣建築裝修工程公司)\nHING SHING CONSTRUCTION\n4\nth\nRespondent\nCOMPANY (興盛建築公司)\nLUEN HOP DECORATION\n5\nth\nRespondent\nENGINEERING COMPANY LIMITED\n(聯合裝飾工程有限公司)\nDAO KEE CONSTRUCTION COMPANY\n6\nth\nRespondent\nLIMITED (陶記營造廠有限公司)\nWONG WAI CHUEN (黃偉銓)\n7\nth\nRespondent\nWONG FU SAN (黃富新)\n8\nth\nRespondent\nCHEUNG YUN KAM (張潤錦)\n9\nth\nRespondent\n(No. 4)\n____________\n主審法官：\n副主任法官歐陽桂如\n聆訊日期：\n2020年10月20日\n判決書日期：\n2020年10月30日\n判決書\n1.\n2020年10月14日，審裁處根據香港法例\n第619章\n《競爭條例》\n（「《\n條例\n》」）\n第102條\n，基於R9承認指控，裁定R9並不適合關涉公司的管理。\n2.\n在本聆訊中，競委會申請針對R9作出取消資格令，為期兩年。\n相關法律\n3.\n根據《條例》\n第101條\n：\n「(1) 在\n第102條\n指明的情況下，審裁處可應競委會提出的申請，針對某人作出取消資格令。\n(2) 取消資格令是具有以下效力的命令：該命令所針對的人不得在無審裁處的許可下，在指明期間內 ——\n(a) 擔任或繼續擔任公司董事；\n(b) 擔任公司的清盤人或臨時清盤人；\n(c) 擔任公司財產的接管人或管理人；或\n(d) 不論直接或間接以任何方式，關涉或參與公司的發起、組成或管理，\n而上述指明期間不得超過5年，自命令的日期起計。\n(3) 在本條中 ——\n指明 (\nspecified )指在取消資格令中指明。」\n4.\n《條例》\n第102條\n：\n「審裁處只有在下述兩項條件均就某人而獲符合的情況下，方可針對該人作出取消資格令 ——\n(a) 它裁定該人任職董事的公司已違反競爭守則；及\n(b) 它認為該人作為董事的行為，使該人不適合關涉公司的管理。」\n5.\n《條例》\n第103條\n：\n「(1) 為根據\n第102(b)條\n決定某人是否不適合關涉公司的管理，審裁處 ——\n(a) 須顧及第(2)款是否適用於該人；及\n(b) 可顧及該人作為公司董事在與其他違反競爭守則事件有關連的情況下的行為。\n(2) 如 ——\n(a) 某人作為公司董事的行為，有份造成違反競爭\n守則；\n(b) 某人作為公司董事的行為，無份造成違反競爭\n守則，但該人\n有合理理由懷疑\n公司的行為構成違反競爭守則，卻沒有採取步驟防止該行為；或\n(c) 某人作為公司董事\n雖不知道但理應知道\n公司的行為構成違反競爭守則，\n則本款適用於該人。」（間線後加）\n6.\n《條例》\n第103(2) 條\n跟香港法例\n第571章\n《證券及期貨條例》\n第214(2)(d) 條\n及已廢除的第395章\n《證券(內幕交易)條例》\n第23(1)(a) 條\n類同。\n7.\n取消資格令的目的是保護性的（為保護股東、投資者及公眾），而非懲罰性的，還附帶有阻嚇的目的：\nKoon Wing Yee v Insider Dealing Tribunal\n(2008) 11 HKCFAR 170\n，第72至73段。\n8.\n罰則須反映行為的嚴重性，使商界人士獲得清晰的訊息，就是如果他們破壞別人對他們的信任，他們便會得到適切的懲罰。\nSecurities & Futures Commission v Fung Chiu & ors\n[2009] 2 HKC 19\n, 第12段，關淑馨法官（當時官階）：\n“I bear in mind two important objectives in the exercise of this jurisdiction to make disqualification orders: firstly, protection of the public against the future conduct of persons whose past records as directors of listed companies have shown them to be a danger to those who have dealt with the companies, including creditors, shareholders, investors and consumers; and secondly, general deterrence in that the sentence must reflect the gravity of the conduct complained of so that members of the business community are given a clear message that if they break the trust reposed in them they will receive proper punishment.”\n9.\n在\nAki John Pandelis Stamatis & anor v The Competition & Markets Authority\n[2019] EWHC 3318，兩名申請人曾任公司董事。那些公司其後被裁定違反競爭法，因此兩名申請人分別承諾在33個月及18個月內不再擔任董事。其後他們申請重新擔任董事的許可。英國的法庭重申，取消董事資格的條文同樣是以保護性為主要的目的（判詞第6及13段）。\n10.\n本席認為以上的原則也適用於《條例》下的取消資格令。\n11.\n在\n《證券及期貨條例》\n下，取消資格期分為三個等級 （概述於\nSecurities & Futures Commission v Tong Shek Lun & ors\n[2020] HKCFI 435\n, 第26 段，夏利士法官）。但因應《條例》\n第101條\n，指明期的最長時間為5年，本席認爲可以作出以下的區分：\n(1) 最高級別：取消期為4-5年，適用於情節嚴重的情況，例如明知故犯 (《條例》\n第103(2)(a)條\n)、重大參與、重犯、煽惑他人參與；\n(2) 最低級別：取消期為兩年以下，適用於情節較輕微的情況；及\n(3) 中間級別：取消期為2-3年，情節的嚴重性在兩個級別之間。\n12.\n競委會的陳詞建議最低級別適用於\n第103(2)(c) 條\n，而中間級別適用於\n第103(2)(b) 條\n。不過本席認爲不應作此區分，因爲\n第103(2) 條\n的本意不在分辨行爲的嚴重性而是發出取消資格令的適切性，而第(b)、(c) 款特意要求審裁處考慮董事對公司行爲的認知或不認知。 故例如在103(2)(b) 條下，一名董事可以在有合理理由懷疑違法的情況下，若依然故我，而受影響的人士衆多，也可以納入最高級別。\n13.\n本席補充：以上的分級衹是一般性指引，須視乎情節而靈活運用。除了違法情節的嚴重性，法庭會考慮一籃子的因素，例如：受影響的的股東和公衆的多寡和程度、該董事有沒有與其他違反競爭守則事件有關連的情況下的行爲（《條例》\n第103(1)(b)條\n）、他參與違法行為的程度與手法、有沒有私利、有沒有盡力阻止或糾正違法行為、有沒有承認法律責任、有沒有跟競委會合作或提供幫助 …… 等。這些並非概括性的因素，審裁處也無需當此爲項目清單，把因素逐一依次考慮，\n分析\n14.\nR5（「聯合」）是\nCompetition Commission v W Hing Construction Co Ltd\n[2019] 3 HKLRD 46\n（「\n永興\n案\n」）的第十答辯人，該案在2017年8月14日開展。R9在該案所涉及的工程時間及本案所涉的工程期間（即2017年6月至11月），均為聯合的董事，他作為聯合的董事而與其他違反競爭守則事件有關連：《條例》\n第103(1)(b) 條\n。\n15.\n此外，本席依賴2020年10月14日的判詞的事實基礎。基於其同意事實陳述書，本席信納R9個人並不直接知曉或有份造成違反第一行為守則的事情，但R9當時有合理理由懷疑聯合的行為構成違反第一行爲守則，因為代表聯合的R8在2017年3月8日已接受競委會的面見（\n永興\n案第60段），而聯合在本案的工程牌照在一個月後（2017年4月17日）才發出，及至\n永興\n案開展了，本案的工程仍未完結。然而R9並沒有採取任何步驟阻止或糾正違反競爭法的行為，他的情況屬《條例》\n第103(2)(b) 條\n。\n16.\nR8的陳詞提及，每次獲聯合分判工程，R9總會提醒R8不要犯法（例如不要聘用非法勞工等）。然而R9本身對競爭法也沒有足夠的認知，本席相信他不懂也沒有提醒R8不要觸犯競爭法。\n17.\n競委會在2017年藉\n永興\n案開始起訴第一批承辦商時，雖曾引起承辦商之間的重大關注，但競爭法尚新，當時實在沒有本地案例作參考。\n18.\nR9現年74歲，閱讀能力有限，只有一間有限公司，且是私人性質的，另一名董事是其兒子，兩人亦同為股東。\n19.\n整體而言，本席認為R9的情況屬於間中級別而偏低的嚴重性，競委會申請兩年取消資格令是適切的起點。\n20.\n然而本席考慮到以下的求情因素：\n(1) R9從一開始便承認責任，節省競委會和審裁處的時間和訟費開支。\n(2) 根據\n第101條\n而發出的取消令，應由命令之日計起。若非因R1曾經反對審裁處使用\nRe Carecraft Construction Co Ltd\n[1994] 1 WLR 172\n的程序而引起延誤，及法庭因疫情需要而不能舉行聆訊，R9方面的申請其實可以更早獲得處理。\n21.\n因此，本席酌情將取消資格令的時間縮減兩個月。\n總結\n22.\n本席根據《條例》\n第101條\n，針對R9而發出取消資格令，有效期為本命令的日期起計的一年零十個月，即是至2022年8月30日為止。\n訟費\n23.\nR9已同意支付申請人的經評定訟費，然而：\n(1) R9早已承認責任，本席重複上文第20(2)段，加上無律師代表人不熟悉承認案情的程序，因此R9不應支付競委會為準備證人陳述書而產生的訟費；\n(2) 競委會所準備的文件冊大部份對罰則聆訊並沒有作用，因此本席只批准他們收取文件冊內第1至11.3項的影印費；及\n(3) R9在罰則聆訊只佔用了10分鐘的時間作陳詞。\n24.\n在競爭法下，本案是第一件《條例》\n第101\n至\n103條\n下的罸則案件。因此，在訟費方面，本席酌情給予R9 20%訟費方面的寬免。日後再有同類案件，競委會應盡可能在「同意事實陳述書中」建議取消資格令的年期，將更節省時間和訟費。\n25.\n在上兩段的前題下，本席作出訟費的\n暫令\n：\n(1) 除下文第(2)至第(5)段所涵蓋的訟費外，R9應支付競委會截至及包括2020年7月13日第二次案件管理會議聆訊的訴訟費的九分之一；\n(2) R9應支付一半他與R5的同意傳票的訟費，包括編制他與R5的同意事實陳述書的訟費，但不包含2020年10月14日的聆訊費用；\n(3) 本席只批准競委會準備文件冊第1至11.3項的費用，而R9負責九分之一；\n(4) R9只須支付2020年10月20日的罰則聆訊的訟費（包括大律師的費用）的八分之一，但當日的聆訊時間只須負責十分鐘；\n(5) 所有訟費寬減20%；及\n(6) 如未能達成一致意見，訟費的金額由司法常務官予以評定。\n除非任何一方在21天內申請更改暫令，否則訟費的暫令將於2020年11月20日後變為正式命令。\n26.\n本席感謝黃若鋒大律師對法庭的幫助。\n競爭事務審裁處副主任法官\n（歐陽桂如）\n申請人：由金杜律師事務所轉聘黃若鋒大律師代表\n第九答辯人無律師代表，親自應訊", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2019/CTEA000001D_2019.docx", + "file_name": "CTEA000001D_2019.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkct/2021_HKCT_1/case.json b/zh_cases_hkct/2021_HKCT_1/case.json new file mode 100644 index 0000000..c652311 --- /dev/null +++ b/zh_cases_hkct/2021_HKCT_1/case.json @@ -0,0 +1,26 @@ +{ + "Date": "5 Jan, 2021", + "Action No.": "CTEA1/2019", + "Neutral Cit.": "[2021] HKCT 1", + "case_title": "COMPETITION COMMISSION 對 FUNGS E&M ENGINEERING CO LTD 及另八人", + "page_title": "COMPETITION COMMISSION 對 FUNGS E&M ENGINEERING CO LTD 及另八人 | [2021] HKCT 1 | HKLII", + "case_history": [ + { + "name": "CTEA1/2019", + "link": "https://www.hklii.hk/tc/appealhistory/CTEA/2019/1" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkct/2021/1", + "neutral_cit": "[2021] HKCT 1", + "court_code": "HKCT", + "content": "CTEA1C/2019 COMPETITION COMMISSION 對 FUNGS E&M ENGINEERING CO LTD 及另八人\nCTEA 1/2019\n[2021] HKCT 1\nIN THE COMPETITION TRIBUNAL OF THE\nHONG KONG SPECIAL ADMINISTRATIVE REGION\nCOMPETITION TRIBUNAL ENFORCEMENT ACTION NO 1 OF 2019\n________________________\nBETWEEN\nCOMPETITION COMMISSION\nApplicant\nand\nFUNGS E&M ENGINEERING COMPANY LIMITED (馮氏機電工程有限公司)\n1\nst\nRespondent\nYEE HING METAL SHOP\n(義興鐵器土木油漆工程)\n2\nnd\nRespondent\nCHEUNG MIN (張棉) trading as ACCORD CONSTRUCTION & DECORATION CO\n(雅閣建築裝修工程公司)\n3\nrd\nRespondent\nHING SHING CONSTRUCTION COMPANY\n(興盛建築公司)\n4\nth\nRespondent\nLUEN HOP DECORATION ENGINEERING COMPANY LIMITED\n(聯合裝飾工程有限公司)\n5\nth\nRespondent\nDAO KEE CONSTRUCTION COMPANY LIMITED\n(陶記營造廠有限公司)\n6\nth\nRespondent\nWONG WAI CHUEN (黃偉銓)\n7\nth\nRespondent\nWONG FU SAN (黃富新)\n8\nth\nRespondent\nCHEUNG YUN KAM (張潤錦)\n9\nth\nRespondent\n(No. 5)\n________________________\n主審法官：\n副主任法官歐陽桂如公開聆訊\n聆訊日期：\n2020年10月20日及12月2日\n判案書日期：\n2021年1月5日\n關於懲罰的判案書\n索引\n段落\nA. 引言.............................................................................................\n1\nB. R1-R6罰款的法律原則...............................................................\n7\nC. 第一步：基礎金額......................................................................\n8\nD. 第二步：針對加重懲罰、求情和其他因素的調整....................\n16\nE. 第三步：法定上限..........................................................................\n69\nF. 第四步：合作扣減及無力支付而致的扣減...............................\n75\nG. R7及R8的罰款........................................................................\n89\nH. 分期付款.................................................................................\n101\nI. 禁制令.....................................................................................\n104\nJ. 訟費.........................................................................................\n107\nK. 總結.........................................................................................\n111\nA. 引言\n1.\n本判案書需與2020年10月14日就着責任問題而頒布的判詞（「\n責任判詞\n」）一同閲讀，本判決書採用責任判詞所有簡稱。除另有聲明以外，以下所有法律條文都是指香港法例\n第619章\n《競爭條例》\n的。\n2.\n就着R1-R8，競委會申請以下濟助：\n(1) 罰款;\n(2) 禁止進行違反競爭法的行為；及\n(3) 經20%扣減的訟費。\n競委會不申請調查費。\n3.\n答辯人可分為以下兩大類:\n(1) R1-R6：裝修承辦商身分，違反\n《競爭條例》\n第6條\n下的「第一行為守則」，訂立及執行樓層編配安排及價格協調安排。競委會要求審裁處用\nCompetition Commission v W Hing Construction Co Ltd\n[2020] 2 HKLRD 1229\n（「\n永\n興案第\n3\n號\n」）的「\n四步法\n」訂定罰款。\n(2) R7-R8：「牽涉入」違反競爭守則的人，違反《條例》\n第91條\n，\n參與的方式從早期反競爭協議到執行。本港未有適用的懲罰先例。\n4.\n所有答辯人在不同的階段承認責任，並採取了合理行動，節省競委會的訟費開支和審裁處的時間。答辯人有各自的同意事實陳述書，本席謹記，某答辯人所承認的事實並不約束另一人。\n5.\n競委會存檔了梁永豪的誓章，但它並不約束R1，因為誓章表明是就著R2至R6的罰款申請而存檔的。不過R1接受競委會所稱的R1的銷售價值及2018年的營業額。\n6.\n爲方便讀者，本判詞結尾的附件列出了競委會對每個答辯人的罰款的提議，及審裁處的裁定，相關的承辦商及分判商同列一表。\nB. R1-R6罰款的法律原則\n7.\n永興案第3號\n第46至75段列出了四步法，當中涵蓋《條例》\n第93(2) 條\n下必須考慮的事情，要點如下：\n(1) 第一步要確定基礎金額，基礎金額由三個要素組成，即 (1) 銷售價值，(2) 嚴重性百分比，以及 (3) 持續期間乘數（第48至51段）。\n(2) 第二步因應加重懲罰、求情和其他因素進行調整，《條例》\n第93(2)條\n列出了非全面性的因素（第52至59段）。\n(3) 第三步應用條例\n第93(3)條\n規定的法定上限（第60至67段）。\n(4) 第四步爲反映與競委會的合作而作扣減，並考慮無力支付的申辯（第68至75段）。\nC. 第一步：基礎金額\n8.\n應用\n永興案第3號\n第77段，相關答辯人的銷售價值並無爭議，見下文第15段的列表。\n9.\n為反映行為的嚴重性，審裁處會因應銷售價值而定出嚴重性百分比。審裁處的主任法官林雲浩指出，把嚴重性百分比定為17至30% 的幅度符合國際慣例，亦適用於香港。該案同樣涉及類似R1-R6的裝修承辦商價格協調安排及樓層編配安排的行為，林法官裁定嚴重性百分比為24%：\n永興案第3號\n，第50, 88-94段。\n10.\n根據\nBellamy & Child, European Union Law of Competition\n, 8\nth\ned, at §14.026：\n“When determining the gravity of an infringement, regard must be given to a basket of factors, the nature and importance of which vary according to the type of infringement in question and the particular circumstances of the case. Such factors include:\n(a) the nature of the infringement;\n(b) the number and size of the undertaking or undertakings involved in the infringement;\n(c) the proportion of the market controlled by the undertaking or undertakings involved in the infringement within the EEA;\n(d) the situation of the market when the infringement was committed;\n(e) the volume and value of the goods or services in respect of which the infringement was committed;\n(f) the geographic scope of the infringement;\n(g) the precautions taken by an undertaking to prevent the infringement from being exposed;\n(h) the role played by an undertaking in the establishment of the infringement;\n(i) the profit which an undertaking was able to derive from the infringement; and\n(j) the threat that the infringement poses to the objectives of the European Union.\nBy contrast, the fact that an undertaking participated in an infringement for a short time only or that the intensity of its infringement may have varied over time does not reduce the gravity of its infringement.”\n11.\n換言之，審裁處須視乎情節而考慮一籃子的因素才決定嚴重性百分比，包括反競爭行為的性質、參與的業務實體的數目及規模、所佔的市場率、市場在反競爭行爲發生時的狀況丶銷售價值、反競爭行為發生的區域、業務實體為避免反競爭行為曝光而採取的措施、業務實體所扮演的角色、所得的利潤及反競爭行為對競爭法的目標所帶來的威脅。相對地，業務實體參與的時間短或者隨時間而更改其參與程度並不會減輕反競爭的嚴重性。\n12.\n應用本部的原則，本席同意競委會的陳詞：\n(1) 樓層編配安排及價格協調安排屬於嚴重反競爭行為；\n(2) 反競爭行為佔了相當大的市場份額，而且R1-R6的行為旨在並確實消除了他們之間的競爭，而他們是彼此最直接的競爭對手；及\n(3) 該行為針對並影響了公共租賃屋邨的低收入租戶，並且是在不理會房委會明確警告不要「分餅仔」的情況下而作出的。\n13.\n競委會提議嚴重性百分比爲24%，但本席認爲應該訂為20%，原因如下：\n(1) 本案所涉及反競爭的業務實體數目、所佔的市場份額、所涉伙數及銷售價值，均比\n永興案第三號\n的爲少。\n(2)\n永興案第三號\n的答辯人在2,582伙中，裝修了867伙，佔33.6%市場份額。R1-R6 在1,508伙中，裝修了429伙，佔28%。兩宗案的差距不可謂輕微。\n14.\n爲反映相關行爲所涉時間，應定出持續期間乘數。反競爭行為發生在2017年6月至11月期間。出於與\n永興案第3號\n第96段所述相同的原因，在本案的持續期間乘數應是1，沒有必要因反競爭行為只有五個月而按比例調低。\n15.\n基於上述原因，第一步的基礎金額計算如下：\nR1\nR2\nR3\nR4\nR5\nR6\n銷售價值\n(港元)\n4,501,710\n5,212,068\n3,708,840\n4,322,030\n3,720,780\n3,789,690\n嚴重性\n百分比\n20%\n20%\n20%\n20%\n20%\n20%\n持續時間\n乘數\n1\n1\n1\n1\n1\n1\n基礎金額\n(港元)\n900,342\n1,042,414\n741,768\n864,406\n744,156\n757,938\nD. 第二步：針對加重懲罰、求情和其他因素的調整\nD1. 加重懲罰的因素\n16.\n競委會主張，有兩個加重因素，其中只有一個適用。\n17.\n首先，根據\n第93(2)(d)條\n，一個強制性考慮因素是審裁處先前是否裁定某答辯人已經違反了《條例》。儘管R5曾在\n永興案\n中被裁定違反《條例》，但出於務實的原因，競委會不尋求提高罰款，因為法定上限規定了對R5的罰款上限為372,078港元。\n18.\n第二，與\n永興案第3號\n第101(2)段一樣，競委會認為，本案的反競爭行為反映了行業中長期廣泛存在的慣常做法：\n(1) 繼\n永興案\n，競委會在審裁處提起執行訴訟CTEA 1/2018及本案，就房委會裝修承辦商制度下的項目追究類似的反競爭行為。\n(2) 本案多名答辯人已經承認，反競爭行為反映了廣泛的行業慣常做法。\n(3) 競委會依賴梁永豪的誓章來證明本案的情節在屋苑廣泛流行，但該誓章並沒有説明適用於R1。即使如此，審裁處也可以用司法知悉（judicial notice）採納該廣泛性為證據。\n19.\n競委會在\n永興案第3號\n並沒有邀請審裁處考慮廣泛性，但不保證以後不會（第101(2) 段）。在本案卻請求審裁處把R1-R6的罰款提高25%。與嚴重性百分比的情況一樣，這25%並不是根據科學計算，而只是一個廣泛的標準，以反映行為的嚴重性和可指責性，以收阻嚇作用。\n20.\n此外，針對R1和R6，競委會更要求再加15%的「特定阻嚇罰款」，以達致阻嚇目標，因爲R1和R6的生意規模較大。\n21.\nR1陳詞指，因廣泛性而提高罰款的考慮應納入第一步的嚴重性百分比之下，因爲第一步跟第二步有清楚的分界，第一步考慮答辯人（或某組答辯人）之間的共通點，第二步是針對個別答辯人的行爲。單一答辯人的行爲不能構成廣泛的局面，故此不能針對他一人而提高罰款。\n22.\n本席同意競委會因廣泛性而要求提高罰款的原因，亦同意R1對第一步和第二步的分界的陳詞，但認為，嚴重性百分比是考慮案件本身的嚴重性而定的，廣泛性卻是要考慮本案以外的因素或社會狀況而定的。\n23.\n以\n永興案\n及本案為例，嚴重性百分比分別是24%和20%。如廣泛性因素應納入第一步考慮，則採納國際慣例，嚴重性百分比可能變成30%，顯示廣泛性只分別帶來6%或10%的加重刑罰，未能充分反映在屋苑廣泛性地存在價格協調安排和樓層編配安排所帶來的禍害。\n24.\n基於第22-23段的原因，本席裁定廣泛性應屬第二步而非第一步的考慮。\n25.\n房委會轄下的屋苑遍佈港九新界和離島，而承辦商共有約223個。反競爭行為的廣泛性對屋苑用戶（特別是低收入家庭）造成傷害，對競爭法的實施也確是一種威脅，因此有必要提高懲罰。本席認為幅度是20%。\n26.\n不過，本席不打算在本案施行那20% 額外罰款。參考歐盟的做法：\n“The fine may be increased on account of recidivism even where the previous infringements were in a different market, provided that the infringement is of a similar nature. The fine may also be increased even if no fine had been imposed for the earlier infringement; it follows that an immunity applicant can subsequently be held to be a recidivist. … A previous infringement decision may be taken into account notwithstanding that it remains subject to review by the EU Courts (or national courts in the case of findings of infringement by national competition authorities). While the Commission is not entitled to increase a fine for recidivism when the second infringement took place before the decision penalising the earlier infringement, it is entitled to do so where the first and second infringements are contemporaneous, and the greater part of the second infringement took place after the first decision.”\nBellamy and Child,\nat §14.037.\n27.\n競委會雖在不同時間提起\n永興案\n、CTEA 1/2018及本案，但三案所涉的反競爭行為時期相近。在本案開展時，工程已完畢，R1-R6無法終止行為或作補救，也無先例可援。因此審裁處認爲應對R1-R6與\n永興案第3號\n的答辯人一視同仁。但這三件案之後所起訴的同類答辯人該再沒有這種優待了。\n28.\n關於15% 特定阻嚇罰款，競委會認爲《條例》下的罰則是要對反競爭的行爲收阻嚇作用：\n永興案第3號\n，第6-37段。用「合乎比例」爲測試，即使向R1和 R6加收15%特定阻嚇 罰款，整體還是未達法定上限。\n29.\n既然《條例》下的罰款已是爲收阻嚇作用，本席認爲如果要再提高罰款，必須有充分的理由。先考慮是否合乎比例是本末倒置的。況且，要用什麽來比較什麽？\n30.\n根據歐洲的\nGuidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003\n：\n“C. Specific increase for deterrence\n30. The Commission will pay particular attention to the need to ensure that fines have a sufficiently deterrent effect; to that end, it may increase the fine to be imposed on undertakings which have a particularly large turnover beyond the sales of goods or services to which the infringement relates.\n31. The Commission will also take into account the need to increase the fine in order to exceed the amount of gains improperly made as a result of the infringement where it is possible to estimate that amount.”\n31.\n由此可見，若罰款未達到足夠的阻嚇作用，審裁處可：(1) 因爲業務實體在反競爭業務的銷售以外有重大的營業額；或 (2) 爲使罰款超出違法所得，而增添特定阻嚇罰款。\n32.\n本席認為歐洲這個做法不適用於本案，因爲從下文可見，依從四步法，罰款已能收阻嚇作用，而且超出違法所得。\n33.\nR1和R6確有很大的營業額。但R1對反競爭行為並不知情；R6只循慣常做法，最多只能收 $201,600為牌照佣金，不見得利潤過高，R1和R6的可責性不比其他分判的答辯人為高。本席看不出在本案有何理由施加那15%罰款。\n34.\n總的來說，本席認爲R1-R6沒有加重懲罰的因素。\nD2. 求情理由\n35.\nR1\n提出五個求情理由：\n(1) R1對於反競爭的事實毫不知情，他根據《條例》承認責任只因它是一個業務實體的一份子。\n(2) R1從反競爭的事情中沒有得到任何經濟利益。\n(3) R1已經要求它的代表不要從事反競爭的行為，同時R1已採取行動去確保遵行競爭法。\n(4) R1同意了事實陳述書的內容。\n(5) 根據\n永興案第3號\n第103段，作為借出牌照的承辦商，R1應獲得三份一的扣減。\n36.\n關於第一個求情理由，R1主張，由於它是新加入房委會的裝修承辦商制度的，而安泰邨一期的工程也是R1唯一在該制度下獲得指派的工程，R1成爲慣常做法的受害者，R7是被告人，但鮑女士作為最應該承擔責任的人卻不是。\n37.\n本席接納R1不知情，但它不可算是受害人，這也非求情理由，因為不作為（下文第41-44段）是導致R1違法的原因。\n38.\n關於第二個求情理由，R1和R7之間在證據上是有衝突的。R7承認他跟R1以3:7 的方式分帳，不過這個協議並沒有書面證據。R1既不承認這分帳方式，也不承認R7是授權代表，更沒有通過第三方程序引入鮑女士的證據協助審裁處做判決，故此收益的70%歸誰並沒有令人信服的證據。競委會縱然對R1的説法存疑，且有强大的調查權，也未能找到R1在工程中有實質金錢利益的證據。由於R7的承認並不約束R1，疑點的利益歸R1，即R1沒有實質金錢收益。\n39.\n不過，R1解釋它借牌的目的是要留在房委會的裝修承辦商名單上及建立與鮑女士的合作關係。本席認爲那對R1本身已是利益，因爲商家不一定要求即時獲利，反而放眼長遠的收益。本席不接納第二個求情理由。\n40.\n關於第三個求情理由，採取足夠的步驟去遵行競爭法可以是求情理由：\nCMA’s guidance as to the appropriate amount of a penalty\n, 18 April 2018, at §2.19及註腳3。\n41.\n本席認爲，R1單在書面協議中要求鮑女士不要參與合謀定價的行爲並不足夠，因爲R1毫不知道她的底蘊，沒有與她合作的經驗、也沒有證據證明它曾向鮑女士瞭解她對合謀定價或其他競爭法的觀念有何認識。\n42.\n再者，R1稱，當它知悉有建築工程公司爲公共屋村住戶進行裝修工程而被起訴時（即\n永興案\n），它特意於2017年8月31日以書面形式，鄭重地再次提醒其代表，不能做出違反《條例》的協議或行爲。\n43.\n但本席認爲這毫不足夠，因爲R1當時沒有查究鮑女士有沒有違反《條例》或叫停違法的工程，而且當時已過了相關違法期（2017年6-11月）的一半了。\n44.\n對於遵行及防止違反競爭法，R1近乎不作為，本席不接納第三個求情因素。\n45.\n關於第四個求情理由，R1依賴\nBellamy and Child,\n§14.053:\n“Non-contestation or admission of facts in the statement of objections. While the Fining Guidelines do not mention the non-contestation or admission of facts as a possible mitigating factor, the Commission may, but is not required to, reduce a fine where the undertaking acknowledges the facts and admits its infringement.”\n46.\nR1聲稱「\n金光\n程序」\n[1]\n對它造成一重額外負擔，就是要接受競委會的案情，沒有空間作出對事實的反對，R1主張它應額外得到5%的扣減。\n47.\n在英國，如果一間公司沒有就其反競爭行爲申請寬待，也沒有接受「快綫處理」，但後來作出對事實清楚的承認，它便可有10%扣減。如果除了事實，它也承認行爲違反競爭法，則可共有15% 扣減：\nKier Group Plc v OFT\n[2011] CAT 3, at §64.\n48.\n本席相信R1不是指競委會逼使它承認非事實。程序上，承認責任不能沒有事實基礎。競委會早在提起申請的文件中已列出案情，如果答辯人不同意任何一部分，可以要求審裁處就該部分作出定奪。審裁處在決定懲罰時，仍會就答辯人承認事實的幅度而決定扣減。本席不認為第四個理由可獨立於第四步，故不在本步作扣減。\n49.\n關於第五個求情理由，三分一扣減是基於兩個考慮，即(a) 不能假設承辦商能夠從分判商收回其必須支付的罰款；(b) 反映答辯人在相關業務實體中發揮了部分作用是適當的。（此求情理由亦適用於有分判商的R3-R6。R3和R4的分判商/代表並非答辯人。）\n50.\n競委會已就\n永興案第3號\n給予這三分一扣減的決定提出上訴。競委會認爲:\n(1) 沒有證據表明，R1（及R3-R6）曾試圖向各自的分判商尋求賠償，且如果他們選擇這樣做將不會成功。\n(2) R1（及R3-R6）僅在相關業務實體中發揮了部分作用的事實，顯然違反了其分別向房委會作出的不分判的承諾。因此，將答辯人的部分參與作為求情因素具有允許答辯人從其自身錯誤行為中獲益的效果。\n(3) 因此競委會認爲不應該給予任何這方面的扣減。\n51.\n本席不同意競委會的陳詞。就著第(1)點，承辦商可能先看罰款是多少才決定是否向分判商追討，所以，前者有沒有在聆訊前追討分判商並不重要。即如R1，它已提起第三方程序要求鮑女士彌償，但該程序暫時擱置了，對審裁處瞭解他們的關係或決定罰款多少毫無幫助。\n52.\n就着第(2)點，借牌或分判本身並不違反競爭法，審裁處的角色不是要懲罰承辦商違反房委會的合約，而是懲罰他們在借牌/分判後的不作為，即是沒有遵行競爭法或防止反競爭的行為。\n53.\n不過本案跟\n永興案\n最大不同之處，在於某些承辦商與其相關的分判商/代表均爲答辯人 – R1配R7/鮑女士、R5配R8、R6配R8，每一組其實是一個業務實體(這應是\n永興案第3號\n在這個扣減用的意思)，雖然R7和R8不是以業務實體身份被起訴的。R3與代表人十多年的關係顯示他們也是分判的關係。R4也有分判商。\n54.\n基礎金額是以承辦商作爲業務實體的銷售額而定的，但以平分收益的承辦商和分判商爲例，那銷售額其實是兩人合計的，所以罰款衹由承辦商承擔是不公平的。（\n永興案第3號\n第103段）\n55.\n雖然大前題是反競爭人人有責，而且決定罰款不同於分擔民事賠償的責任，這無阻審裁處因應每個答辯人在每一組的實際參與程度而作出適當的（而非劃一三分一的）扣減。\n56.\n本席認爲，\n承辦商\n因應分判收益率可得最高50%的扣減。換句話說，完全分判、免費借牌、在競爭法下不作爲者如R1，不能期望免卻罰款。本席相信在本案後亦難再有承辦商可在競爭法下以不作爲作爲求情理由。\n57.\n沒有借牌或分判的承辦商，沒有這個扣減，因爲他們是獨佔收益的。\n58.\n基於第一個求情理由，本席信納R1並沒有違反競爭法的意圖，他被罰的基礎在於它在競爭法下的不作為。應用第53-56段，又受惠於R7的承認，R1可得30%扣減。\n59.\n關於\nR2-R6\n的求情理由\n，實際有沒有收到預定的回報沒有重要性，因為價格協調安排及樓層編配安排在協議當下已違法，即使實施的是分判商。\n60.\nR2、R3、R5（和R8）在他們的抗辯書和書面陳詞詳細解釋了房委會的承辦商制度的成立及如何在幾十年年以來帶給住戶良好的服務和社會價值。因每類型的單位面積和室內佈局都一樣，而工程的規範、品質、材料、人工、成本也一樣，屋苑的承辦商認爲住戶按面積做裝修的價錢應該是一樣的，這是為保障合理成本和利潤，不向住戶胡亂收費。\n61.\n本席認為，上段的描述，根本就是構成合謀定價的事實，不是求情理由。而他們聲稱，共用一個駐邨辦事處，有序地清除泥頭、分層派傳單、減輕成本，提供價廉物美的服務，不逼住戶選擇任何承辦商，不能減輕他們在競爭法下的責任。\n62.\nR2、R3、R5（和R8）提出的許多求情理由在\n永興案第3號\n中已被駁回:\n(1) R2、R3、R5、和R8在2020年9月11日信函中提出，反競爭行為事實上導致了有利於租戶的效率，\n永興案\n的責任判詞\n[2019] 3 HKLRD 46\n，第147至280段已駁回了該主張；\n(2)\n永興案第\n3\n號\n第100段陳述，對租戶遭受的可量化損失未提出任何投訴不應被視為求情因素，因為經驗表明，該等反競爭行為導致工程量下降及價格上漲，導致資源配置不當，損害了消費者的利益；\n(3)\n永興案第\n3\n號\n第107至108段 不認爲條例是新法律、或情節涉及分判商這些新論點可作爲求情因素，如本案一樣，答辯人已被房委會警告不要參與分餅仔；\n(4)\n永興案第\n3\n號\n第109段認為，答辯人在裝修承辦商制度下的註冊狀態被吊銷或終止的事實不過表示答辯人在其他屋苑再違反第一行爲守則的風險低，故無需要特定的阻嚇，除此以外，那不是一個重要的求情因素；及\n(5)\n永興案第\n3\n號\n第110段駁回了承擔競委會的訟費應被視為重大額外處罰或應被視爲罰款的一部分的主張。\n63.\n至於個別答辯人提及他們的收費低於套餐價，或在別的工程如何收費，都不能構成求情的理由。\n64.\n不過，本席不認為R2-R6是刻意犯法的，他們不過是依循多年的做法，一時間未能適應法律的改變。故此本案的「合謀」不是精良的設計，不用開會研討。正如R8所説，他們分配樓層後，一直都有把分配表給警方，一直到2017年。即使基於同意案情，房委會只是叮囑承辦商不要「分餅仔」，沒有證據證明房委會告訴承辦商訂立套餐價那廣泛行為可能構成合謀定價。\n65.\n總括而言，R2-R6沒有加重懲罰或求情理由，但應用上文第53-57段的原則，扣減如下：\n(1) R2沒有分判，沒有扣減；及\n(2) R3-R6與分判商平分利潤，或得到約為200,000港元的分判費用（似乎就是五乘分賬的利潤）\n[2]\n，各人可得50%扣減。（註：在\n永興案第3號\n第104及105段，第三及第四答辯人的分判商不是答辯人也得到三分一扣減）\n66.\nR6的陳詞進一步稱，它是一間較大規模的公司，法定上限已較規模細的答辯人為高，在責任相同的基礎上已要承擔較高的罰款，它尋求在公平及平等待遇的基礎上獲得與其他可能受惠於法定上限的答辯人相當的罰款水平。\n67.\n本席認爲這陳詞是出於對法定上限的不理解。但即使在公平的基礎上，本席也看不出R6的罰款爲何要調低，因為大家的不作爲和收益也相近。\n68.\n總結第二步調整後的金額如下：\nR1\nR2\nR3\nR4\nR5\nR6\n第一步\n基礎金額\n(港元)\n900,342\n1,042,414\n741,768\n864,406\n744,156\n757,938\n因只是業務實體的一部分而扣減\n30%\n0\n50%\n50%\n50%\n50%\n第二步\n調整後\n金額\n630,240\n1,042,414\n370,884\n432,203\n372,078\n378,969\nE. 第三步：法定上限\n69.\n《條例》\n第93(3)(a)條\n規定，就構成單一項違反的行為而施加的罰款，「總額不得超過\n有關的業務實體\n在該項違反發生的每一年度的營業額的10%」。\n70.\n競委會只以承辦商的營業額計算法定上限，沒有納入分判商的營業額，大抵是因爲分判商是藉不同的條文被起訴的，不被視爲違反第一行爲守則的業務實體。營業額表列如下：\nR1\nR2\nR3\nR4\nR5\nR6\n營業額\n>630,000,000\n2,077,094\n4,026,339\n613,104\n3,720,780\n309,274,192\n銷售價值\n4,501,710\n5,212,068\n3,708,840\n4,322,030\n3,720,780\n3,789,690\n71.\nR2及R4並沒有向競委會提供足夠的資料，以按照\n《競爭\n(\n營業額\n)\n規例》\n(第619C章) 的規定進行更準確的計算。\n72.\n根據R2所承認的事實，不存在分判安排。因此不清楚其營業額為何會大大低於其銷售價值。本席採用\n永興案第3號\n第112段所載的方法，即是將其銷售價值當作營業額。\n73.\nR4也是營業額大大低於其銷售價值的。R4確認只收取了200,000港元的牌照佣金。但針對借牌的第一答辯人的陳詞，\n永興案第3號\n第78段裁定違反競爭法的行為不是借出牌照，而是由單一業務實體，以承辦商的名義進行裝修，形式爲制定及執行套餐價和樓層編配安排，正確的焦點是須爲該反競爭行爲負責任的業務實體的銷售價值，並以此為營業額。\n74.\n就R1-R6，第三步金額表列如下：\n港元計\nR1\nR2\nR3\nR4\nR5\nR6\n營業額\n>630,000,000\n5,212,068\n4,026,339\n4,322,030\n3,720,780\n309,274,192\n第二步金額\n630,240\n1,042,414\n370,884\n432,203\n372,078\n378,969\n第三 步法定上限\n>630,000,000\n521,207\n402,634\n432,203\n372,078\n30,927,419\n因此，就R2而言，罰款不能超過法定上限。\nF. 第四步：合作扣減及無力支付而致的扣減\n75.\n定出法定上限後才決定合作扣減，便可確定已届法定上限而又合作的答辯人仍可獲得實質的合作扣減：\n永興案第3號\n，第73(3)段。\n76.\n關於合作扣減：\n(1) 根據競委會的\n《合作及和解政策》(2019年\n4\n月)\n(「\n政策\n」) 第3.7段所規定，如業務實體在競委會對其展開執法程序後，才與競委會合作，競委會可建議的最高合作扣減率為20%。\n(2) 為了鼓勵和解，競委會通常會建議10%的扣減率(\n歐盟委員會：違反歐盟競爭法的罰款\n，\n2011\n年\n11\n月\n)。\n(3) 競委會建議給予R4及R6 10%的扣減率，因為他們在提交答辯狀後已經表示願意儘快和解。\n(4) 競委會建議給予R1、R2、R3、R5 5%的扣減率，因為他們僅在競委會已經準備好審訊必要的文件及證據後才同意與競委會和解。\n77.\nR1提議因爲同意事實而多給5%扣減。R4和R6則提議應用刑事法的標準，給他們三分一扣減。\n78.\n本席不認爲承認責任跟同意事實可以分爲兩個扣減因素，因爲單承認責任而不承認事實，無助於審裁處訂定罰款。\n79.\n另外， 本案不是刑事性質，故不採用刑事的量刑做法。因爲政策已預先發佈讓公眾知悉：肯與競委會合作的業務實體，可得的好處從豁免起訴（政策第2段）到展開執法程序後的最高合作扣減率20%（政策第3.7段，適用於本案），越早合作或承認責任，扣減越多。這個政策透明、扣減幅度明確，符合鼓勵和解的前提。政策雖不約束審裁處，但本席接納競委會在本案採用，這無阻審裁處將來在適當情況下增加或調低扣減率。\n80.\nR1聲稱一直跟競委會合作，提供資料，但R1是經過一輪反對使用\n金光\n程序、及加入鮑女士爲答辯人的申請失敗後，才於第二次案件管理聆訊後承認責任，比沒有律師代表的答辯人都遲。\n81.\nR1陳詞說，在\n金光案\n於2020年6月3日作出口頭判決，確定承認責任的程序後，R1已立即撤銷其反對申請。因此，R1認為它應該得到全數10%扣減。\n82.\n本席認爲，任何答辯人也可以在案件中作出適切的申請，只不過越遲承認責任，可得的扣減便可能會越少。在R1提出反對用\n金光\n程序時，本席已即時告訴R1，那程序是適切的，而且處理民事案件的法官習慣與訟各方互相承認或反對對方某部分的案情，而某一答辯人承認的事實並不約束另一答辯人。事實上，實務指示CTPD1的第72段早已預計可用這程序。\n83.\nR1堅持反對用\n金光\n程序的後果是帶來對其他答辯人的延誤（責任判詞第2段的註）。因此，R1不應和其他答辯人得到同等的扣減，而應只得5%。\n84.\nR4和R6一早承認責任，應得10%的合作扣減。\n85.\nR2、R3和R5一早已在抗辯書表達承認責任，所寫的案情已有反競爭行為的意味（如上文第60和61段)，他們只是不知道也要同意案情，也不知道對於不同意的部分案情可以向競委會反建議別的事實。本席認爲，不應該因他們沒有律師代表而不明白法律程序，或堅持向審裁處披露準確的事實而延後簽同意案情，而否定他們本可得的扣減。因此，R2、R3和R5應各得 10% 扣減。\n86.\n至於因財務困難而需扣減的情況，那是一項特殊措施。如\n永興案第3號\n第119至122段所述，相關答辯人有責任提供關於其財務狀況的清晰及全面的證據。\n87.\n在本案中，R2、R3及R5均沒有提供具有說服力的證據來證明他們無力支付而須扣減罰款，因此本席不作這方面的扣減。\n88.\n整體而言，R1-R6的罰款如下:\nR1\nR2\nR3\nR4\nR5\nR6\n第三步金額(港元)\n630,240\n521,207\n370,884\n432,203\n372,078\n378,969\n合作折扣\n(5%)\n(10%)\n(10%)\n(10%)\n(10%)\n(10%)\n罰款 (港元)\n598,728\n469,086\n333,795\n388,983\n334,870\n341,072\nG. R7及R8的罰款\n89.\n競委會陳詞稱，從\n第91條\n的措辭可以明顯看出，\n第91條\n可能涵蓋的情形範圍廣泛，涉及不同程度的參與或罪責。正如\n永興案第\n3號\n第39段所指出的，香港的競爭法仍是新生事物。儘管有必要就違反第一行為守則定下明確的範圍，在罰款評估中必須提供適當程度的確定性、明確性和透明度，但試圖設計一種結構化的方法以涵蓋\n第91條\n規定的各種不同責任并不適切。例如，很難設計一種結構化的方法以處理試圖違反和與他人合謀違反之間的罪責差異。\n90.\n就R7而言，競委會建議罰款定爲110,000港元至170,000港元之間，然後建議給予10%的扣減率，因為R7較早時便表示希望與申請人達成和解（即實際金額在99,000港元至153,000港元之間）。這建議考慮到：\n(1) R7涉及嚴重反競爭行為（合謀定價及瓜分市場）的行為（明知涉及反競爭行為）的性質和範圍；\n(2) 廣泛的行業慣例（R7承認的）；\n(3) 沒有任何令人信服的求情因素；\n(4) R7的「相關收入」為120,000港元， 每個月平均爲24,000港元，是一個管工的工資；\n(5) 無具有說服力的證據證明其無力支付；\n(6) 競委會提議R1的罰金原為1,475,435港元。R1本應獲得七乘利潤並且是一個擁有更多重要財務資源的實體；及\n(7) 沒有理由就具體的阻嚇或損害/損失、再犯、相稱原則或無力支付而作出調整。\n91.\n就R8而言，競委會建議罰款定爲450,000港元至600,000港元之間，然後建議給予5%的扣減率，因為其表示希望與申請人達成和解（即實際金額在427,500港元至570,000港元之間）。建議是考慮到：\n(1) R8涉及嚴重反競爭行為的行為(明知而涉及反競爭行為的性質和範圍)，且涉及不止一個而是兩個業務實體（R5和R6）；\n(2) 廣泛的行業慣例(這是獲得承認的)；\n(3) 沒有任何令人信服的求情因素；\n(4) R8的「相關收入」估計為1,194,165港元。這是基於其與R5和R6之間的50:50利潤分成安排，並假設其利潤率約為30%（\n永興案第3號\n第106段）；\n(5) R5和R6的建議罰金，原分別為353,000港元及1,176,000港元；及\n(6) 沒有理由就具體的阻嚇或損害/損失、再犯、相稱原則或無力支付而作出調整。\n92.\n本席認爲本案的情節還是適合用四步法爲起點，因爲競委會雖藉不同條文起訴R7與R8 和R1-R6，但向這兩類答辯人施加罰款都是依據\n第93條\n的。\n93.\n這些分判商/代表人取代了承辦商在屋苑的角色，也是直接導致承辦商違反競爭法的人。他們的存在，令承辦商可以在借牌或分判後完全忽視自己在競爭法下的責任。而且承辦商與分判商/代表人也可以不經繁複的會議而達到編配市場或合謀定價的目的，並付諸實行。\n94.\nR7和R8更在本案擔當重要角色:\n(1) R7提醒單張不要用劃一套餐價，明顯是知道競爭法的存在，只是不知道如何行事才能正式避免違法而已。\n(2) R8負責設立電話通訊群組、訂立套餐價大約金額及安排印刷單張。他執意認爲樓層編配及共印單張派發，沒有逼住戶光顧任何承辦商或分判商，只會帶給住戶益處，忽視在競爭新法下客觀地分析慣常做法。所以，當兒子向R8指出後者可能有合謀定價的行爲時，R8極力要説服兒子相信R8而非改變方針。\n95.\n縱然如此，本席認爲R7和R8不過是沿用慣常做法，有默契地行事而已，他們不能算是主謀，也非刻意違法，而是因不瞭解法律而犯法。\n96.\n就R7而言，R1的基礎金額適用。在第二步，R7作爲業務實體的30%\n分判商\n應有70% 的扣減。他說工程收費低於套餐價，但那不是求情理由，他也沒有其他可接納的求情理由。競委會沒有提供R7的營業額，故第三步的法定上限應以銷售額$4,501,710的10%計算上限。在第四步，R7應有10% 的合作扣減。據此，R7的罰款應爲：\n900,342 x 30% x 0.90 = 243,092港元\n97.\n這跟競委會的建議高出59%，而且相對於收取200,000港元或平分利潤的承辦商，罰款比起R7的得益相對地過高，本席調低至200,000港元。\n98.\n就R8而言，R5和R6 的基礎金額適用。在第二步，R8%應有50% 的扣減。同期向兩個承辦商借牌不是增加懲罰的理由，因爲他是爲整體六個承辦商而行動的，他沒有可接納的求情的理由。競委會沒有提供R8的營業額，因此他的營業額應以R5和R6合計的銷售額計算 (如R4的情況)，即7,510,470港元，法定上限爲 751,047港元。R8應有10% 的合作扣減。據此，R8的罰款應爲：\n(1) 關於R5的分判，罰款爲744,156 x 50% x 0.90 = 334,870港元；\n(2) 關於R6的分判，罰款爲757,938 x 50% x 0.90 = 341,072港元；及\n(3) 合共675,942港元，這跟競委會的建議高出11%，本席調低至600,000港元。\n99.\n就單一項違反的行爲: R1和R7；R5和R8；R6和R8都不超過第三步的法定上限。\n100.\n整體而言，各答辯人的罰款已大大超出他們在相關工程上的得益，符合阻嚇效果。\nH. 分期付款\n101.\n本項的考慮與第四步沒有能力支付而要求減低罰款的要求不同。審裁處可以考慮罰款的金額、營業額及答辯人的可見收入等因素而決定給予分期。\n102.\n看來R2、R3、R5、R7及R8屬於相對小型的生意或個人業務，本案的銷售額是六個月的工程累積而來的。訴訟期間答辯人沒有得到房委會的工程，他們會如何被房委會處分，以後會否失去房委會的承辦商資格仍屬未知之素。R7是退休人士，須靠積蓄生活，而太太鮑女士亦面對第三方訴訟。R1、R4及R6沒有申請分期付款。\n103.\n本席酌情給予六個月分期付款，於2021年2月1日支付第一期，其後在每月第一日支付，同時把支付的證明文件副本給競委會以便跟進。\nI. 禁制令\n104.\n競委會要求法庭頒下禁制令，禁止各答辯人違反《條例》。鑒於違法行為是廣泛的行業慣例，禁令是適當的，範圍僅限於房屋委員會的裝修承辦商制度下的項目。儘管許多答辯人聲稱他們的牌照已被吊銷，但沒有什麼可以阻止他們作為「持牌分判商」參與未來的項目。而且儘管一些答辯人願意在本案和解，但他們（如2020年9月11日信函所示）仍拒絕接受其反競爭行為的不當性。競委會認為在這種情況下，除非受到審裁處的禁制，否則R1-R8很可能就房委會的裝修承辦商制度下的其他項目從事同類型的反競爭行為。\n105.\n本席認為這不是適切的造法，因為相關的工程已全部完結，答辯人已沒有在同一屋苑再犯的可能。如果答辯人在新的工程再有違法的行為，競委會應該在新的案件中申請禁制令。\n106.\n亦因此，雖然R1願意向法庭保證不作違反競爭法的事，本席亦認為沒有此需要。\nJ. 訟費\n107.\n競委會與R1就着訟費達成如下協議:\n(1) 競委會準備證人陳述書的訟費的1/6；\n(2) 競委會準備與R1之間的同意傳票及同意事實的陳述書的訟費；\n(3) 競委會在2020年12月2日的聆訊的訟費（包括大律師證書）；\n(4) 競委會其餘計至及包括第二次案件管理聆訊（2020年7月13日）的訟費的九分之一；及\n(5) 所有訟費寬減20%。\n108.\nR1曾發出一個加入訴訟方及第三方的程序傳票，R1只申請2020年6月26日聆訊的訟費。本席認為競委會提出反對是有理由的，當日聆訊的三項申請中，R1只有一個成功。整體而言，本席認為應該不作訟費令。\n109.\n關於R2-R6，本席命令訟費如下：\n(1) 競委會準備證人陳述書的訟費的1/6；\n(2) R2、R3、R4、R6、R7及R8應各自支付競委會就每名答辯人各自的同意傳訊（2020年8月20日或8月31日）的訟費，包括編制各自的同意事實陳述書的訟費，但不包含2020年10月14日的聆訊費用；\n(3) R5應支付一半競委會就着他與R9的同意傳訊（2020年8月31日）的訟費，包括編制他與R5的同意事實陳述書的訟費，但不包含2020年10月14日的聆訊費用；\n(4) R2-R8須各自支付競委會在2020年10月20日的聆訊（減去十分鐘）的訟費（包括大律師証書），其中只批准競委會收取文件冊內第1至11.3項的影印費。每人付八分之一；\n(5) R2-R8應各自支付競委會計至及包括第二次案件管理聆訊(2020年7月13日)的訟費的九分之一；及\n(6) 所有訟費寬減20%。\n110.\n如競委會及個別答辯人未能達成一致意見，訟費的金額由司法常務官予以評定。\nK. 總結\n111.\n本案應用了\n永興案第3號\n的四步法，但在第二步，本席拒絕因廣泛性而扣減，因着每一組承辦商和分判商/代表人的實際分判率而作出最高的50%（不限於三分一）扣減。本席亦應用了四步法在分判商R7和R8身上。用四步法已令罰款大大超越借牌/分判收益，無須額外添加特定阻嚇罰款。此外在工程完結後才發出禁制令，是毫不適切的。\n112.\n本席命令如下：\n(1) 答辯人須支付以下化爲整數的罰款：\nR1\n598,000\nR2\n469,000\nR3\n333,000\nR4\n388,000\nR5\n334,000\nR6\n341,000\nR7\n200,000\nR8\n600,000\n(2) R2、R3、R5、R7及R8的罰款可分六期平均支付，於2021年2月1日支付第一期，其後在每個月第一日支付，直至清付爲止；\n(3) 答辯人須把支付的證明文件交給競委會以便跟進；\n(4) 撤銷禁止令的申請；及\n(5) 按第107-110段作出訟費令。\n113.\n本席感謝黃若鋒大律師、魏焯然大律師、陳樨樨大律師及張志雄大律師對法庭的幫助。\nR1（承辦商）和R7（分判商/代表）的罰款列表\nR1\nR7\n競委會的建議\n審裁處的裁定\n競委會的建議\n審裁處的裁定\n第一步\n銷售價值\n$4,501,710\n$4,501,710.00\n$4,501,710.00\n嚴重性百分比\n24%\n20%\n20%\n持續期間乘數\n1\n1\n1\n基礎金額\n$1,080,410.00\n$900,342.00\n$900,342.00\n第二步\n因廣泛性而增加25%\n$270,103\n應加20%，但本案不施加\n應加20%，但本案不施加\n因特定阻嚇而增加15%\n$202,577\n不批准\n不批准\n因衹是業務實體的一部分而扣減1/3\n永興案\n在上訴中，不適用\n(30%)\n（70%）\n因求情因素而扣減\n0\n0\n0\n第三步\n法定上限\n>$63,000,000\n>$63,000,000\n$450,171\n第四步\n合作扣減\n(5%)\n(5%)\n（10%）\n(10%)\n罰款總額\n$1,080,410\nx 1.25\nx 1.15\nx 0.95\n=\n$1,475,435\n$900,342\nx 0.70\nx 0.95\n=\n$598,728\n$110,000 至$170,000\nx 0.90\n=\n$99,000\n至\n$153,000\n$900,342\nx 0.30\nx 0.90\n= $243,092\n調低至\n$200,000\nR2, R3\n(沒有分判商的承辦商）及R4（分判商非答辯人）的罰款列表\nR2\nR3\nR4\n競委會的建議\n審裁處的裁定\n競委會的建議\n審裁處的裁定\n競委會的建議\n審裁處的裁定\n第一步\n銷售價值\n$5,212,068\n$5,212,068\n$3,708,840\n$3,708,840\n$4,322,030\n$4,322,030\n嚴重性百分比\n24%\n20%\n24%\n20%\n24%\n20%\n持續期間乘數\n1\n1\n1\n1\n1\n1\n基礎金額\n$1,250,896\n$1,042,414\n$890,122\n$741,768\n$1,037,287\n$864,406\n第二步\n因廣泛性而增加25%\n$312,724\n應加20%，但本案不施加\n$222,530\n應加20%，但本案不施加\n$259,332\n應加20%，但本案不施加\n因特定阻嚇而增加15%\n不適用\n不適用\n不適用\n因衹是業務實體的一部分而扣減1/3\n永興案\n在上訴中，不適用\n0\n永興案\n在上訴中，不適用\n50%\n永興案\n在上訴中，不適用\n50%\n因求情因素而扣減\n0\n0\n0\n0\n0\n0\n第三步\n法定上限\n$521,207\n$521,207\n$402,634\n$402,634\n$432,203\n$432,203\n第四步\n合作折扣\n(5%)\n(10%)\n(5%)\n(10%)\n(10%)\n(10%)\n罰款總額\n$521,207\nx 0.95\n=\n$495,000\n$521,207\nx 0.90\n=\n$469,086\n$402,634\nx 0.95\n=\n$382,000\n$370,884\nx 0.90\n=\n$333,795\n$432,203\nx 0.90\n=\n$388,000\n$432,203\nx 0.90\n=\n$388,983\nR5, R6 (均爲承辦商)及R8（分判商）的罰款列表\nR5\nR6\nR8\n競委會的建議\n審裁處的裁定\n競委會的建議\n審裁處的裁定\n競委會的建議\n審裁處的裁定\n第一步\n銷售價值\n$3,720,780\n$3,720,780\n$3,789,690\n$3,789,690\n嚴重性百分比\n24%\n20%\n24%\n20%\n20%\n持續期間乘數\n1\n1\n1\n1\n1\n基礎金額\n$892,987\n$744,156\n$909,526\n$757,938\n$744,156 + $757,938\n第二步\n因廣泛性而增加25%\n$223,247\n應加20%，但本案不施加\n$227,381\n應加20%，但本案不施加\n應加20%，但本案不施加\n因特定阻嚇而增加15%\n不適用\n$170,536\n不施加\n因衹是業務實體的一部分而扣減1/3\n永興案\n在上訴中，不適用\n50%\n永興案\n在上訴中，不適用\n50%\n50%\n因求情因素而扣減\n0\n0\n0\n0\n0\n0\n第三步\n法定上限\n372,078\n372,078\n30,900,000\n30,900,000\n751,047\n第四步\n合作扣減\n(5%)\n(10%)\n(10%)\n(10%)\n(5%)\n(10%)\n罰款總額\n$372,078\nx 0.95\n=\n$353,000\n$372,078\nx 0.90\n=\n$334,870\n$1,307,443\nx 0.90\n=\n$1,176,000\n$378,969\nx 0.90\n=\n$341,072\n$450,000 至$600,000\nx 0.95\n=\n$427,500至\n$570,000\n($744,156\n+ $757,938)\nx 50%\nx 0.90\n= $675,942\n調低至\n=\n$600,000\n（歐陽桂如）\n競爭事務審裁處副主任法官\n申請人：由金杜律師事務所轉聘黃若鋒大律師代表\n第一答辯人：由鄧富津、蕭婉圓律師行轉聘魏焯然大律師及陳樨樨大律師代表\n第二、第三、第五、及第八答辯人：無律師代表，親自應訊\n第四、第六及第七答辯人：由呂羅律師事務所轉聘張志雄大律師代表\n[1]\n前稱\nCarecraft procedure\n[2]\n可比對R3的三乘利益為120,000港元。", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2019/CTEA000001C_2019.docx", + "file_name": "CTEA000001C_2019.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkdc/2013_HKDC_1527/DCCC000330_2013_abp_fallback.txt b/zh_cases_hkdc/2013_HKDC_1527/DCCC000330_2013_abp_fallback.txt new file mode 100644 index 0000000..dac10f9 --- /dev/null +++ b/zh_cases_hkdc/2013_HKDC_1527/DCCC000330_2013_abp_fallback.txt @@ -0,0 +1,6 @@ +DCCC 330/2013 香港特別行政區 區域法院 刑事案件2013年第330號 ---------------- 香港特別行政區 訴 梁家威 ---------------- 主審法官：區域法院法官陳仲衡 日期：　　2013年10月9日上午11時42分 出席人士：Ms Helen CHAN，為外聘律師，代表香港特別行政區 　　　　　Mr CHONG Chun Sang Matthew，由法律援助署委派的 　　　　　譚德興程國豪劉麗卿律師行延聘，代表被告人 控罪：　　[1] 至 [2] 串謀有意圖而傷人（Conspiracy to wound with intent） ---------------- 判刑理由書 ---------------- 本案被告人梁家威，承認案中兩項串謀有意圖而傷人罪（控罪一及控罪二）。 控罪一及控罪二指，被告人於2013年1月21日至2013年2月1日期間於香港，與另兩人一同串謀，意圖使蘇志偉（即控罪一的目標人物）及溫榮基（即控罪二的目標傷害人物）身體受嚴重傷害而非法及惡意傷害蘇溫二人。 被告於2013年2月1日，於大埔大元邨的一遊戲機鋪內，因形跡可疑，鋪內的一些客人於機鋪外截停被告，並與被告發生糾纏。糾纏期間，一牛肉刀從被告身上跌出，被告被制服，警員到場拘捕被告人。 +被告於警誡下，承認他受一阿庭指使，持牛肉刀到遊戲機鋪傷人。阿庭答應會給被告人20,000元作報酬。 於進一步調查下，被告作出進一步招認。他承認，案中是他的舊同事阿勝及另一男子阿庭，以金錢酬勞招攬被告，替他們到遊戲機以牛肉刀傷人。他們曾於大埔美榮樓5樓C室商量傷人的計劃、逃走路線等細節。被告亦嘗試於2013年1月28日持牛肉刀至遊戲機中心，等候阿庭及阿勝進一步指示，但行動當天告吹。於2月1日，被告獲指示到遊戲機中心以牛肉刀傷人，但於被告找到他的目標人物（即控罪一的蘇志偉）後，被告因膽怯，沒有下手，被告返回美榮樓5C室。於當晚稍後時間，被告獲告知另一目標人物於遊戲機中心內，被告按指示再到遊戲機中心找到新的目標人物（即控罪二的溫榮基），同樣地被告因膽怯，沒有下手。但被告其後於遊戲機中心外被人截停，稍後更被警察拘捕。 被告過往並非任何刑事定罪紀錄。 辯方於輕判請求中指出，被告現年27歲，未婚，與家人於屯門一公屋單位居住。被告於機場一物流公司任職剷車司機，月入約一萬六千元。被告於該物流公司工作已有七年。他曾接受中三教育。 辯方指，本案被告受他的舊同事指使，該舊同事（即阿勝）以20,000元利誘被告人以刀傷人，被告當時因沉迷賭博，向下30,000元債項，於壓力下被告愚蠢地接受工作，答應以刀傷人。 從被告家人、同事的求情信函可見，被告孝順父母，與同事的關係亦一直良好。被告的父親不幸於被告被捕後，與本年5月因病去世。就著案情，辯方指，猶幸被告於本案因膽怯，沒有真的以刀傷害受害人，案件不至弄得更為嚴重。被告於案中承認控罪，他亦一直與警方合 +作，他於區域法院690/2013一案中充當控方證人，指證案中的「阿勝」及「阿庭」。雖然最終法庭裁定二人無罪，但被告已盡力協助警方，辯方要求法庭酌情給予被告人一定的刑罰減免。 法庭於量刑時，考慮了本案的案情、控罪的性質及辯方的輕判請求。被告於本案答允阿庭及阿勝以刀傷害他人，這是一極為嚴重的罪行。被告犯案時，因負債，於經濟壓力下答允阿勝及阿庭傷人，這不是輕判的理由。猶幸被告沒有執行阿勝及阿庭給他的指示，他最終因膽怯，沒有以刀傷害蘇溫二人。被告沒有下手傷人，這是大大減少了案中的刑責。 但以案情而論，法庭認為控罪一及控罪二，經審訊後，適當的量刑基準應是30個月監禁。被告承認控罪，他亦並無任何犯罪前科，法庭應給予被告人三分之一的刑罰寬減，將刑罰從30個月監禁的量刑基準，下調至20個月監禁。 被告於區域法院刑事案件690/2013擔任控方證人，頂證該案的被告人（即本案案情所透露的阿勝及阿庭）。雖然法庭最終裁定該案兩名被告無眾釋放，但法庭認為，法庭仍應酌情給被告人進一步的刑罰寬減。從法庭於該案的判詞可見，被告串謀傷人一事不是無中生有，只是被告頂證阿勝、阿庭的證供質素，不足以使法庭於無合理疑點的證案標準裁定阿勝、阿庭罪名成立。就著被告人協助控方出庭頂證阿勝及阿庭，法庭認為，法庭應給予被告人進一步的刑罰寬減，法庭再將量刑自20個月下調至18個月。除前述減刑因素，即承認控罪及協助控方，案中再沒有別的減刑理由。 + 按前述原因，就著控罪一及控罪二，法庭每項控罪判被告人監禁18個月；控罪一及控罪二的刑罰是同期執行。 陳仲衡 區域法院法官 + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/zh_cases_hkdc/2013_HKDC_1527/case.json b/zh_cases_hkdc/2013_HKDC_1527/case.json new file mode 100644 index 0000000..740cc1b --- /dev/null +++ b/zh_cases_hkdc/2013_HKDC_1527/case.json @@ -0,0 +1,26 @@ +{ + "Date": "9 Oct, 2013", + "Action No.": "DCCC330/2013", + "Neutral Cit.": "[2013] HKDC 1527", + "case_title": "香港特別行政區 訴 梁家威", + "page_title": "香港特別行政區 訴 梁家威 | [2013] HKDC 1527 | HKLII", + "case_history": [ + { + "name": "DCCC330/2013", + "link": "https://www.hklii.hk/tc/appealhistory/DCCC/2013/330" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkdc/2013/1527", + "neutral_cit": "[2013] HKDC 1527", + "court_code": "HKDC", + "content": "DCCC330/2013 香港特別行政區 訴 梁家威\nDCCC 330/2013\n香港特別行政區\n區域法院\n刑事案件2013年第330號\n----------------\n香港特別行政區\n訴\n梁家威\n----------------\n主審法官：\n區域法院法官陳仲衡\n日期：\n2013年10月9日上午11時42分\n出席人士：\nMs Helen CHAN，為外聘律師，代表香港特別行政區\nMr CHONG Chun Sang Matthew，由法律援助署委派的譚德興程國豪劉麗卿律師行延聘，代表被告人\n控罪：\n[1] 至 [2] 串謀有意圖而傷人（Conspiracy to wound with intent）\n----------------\n判刑理由書\n----------------\n1.\n本案被告人梁家威，承認案中兩項串謀有意圖而傷人罪（控罪一及控罪二）。\n2.\n控罪一及控罪二指，被告人於2013年1月21日至2013年2月1日期間於香港，與另兩人一同串謀，意圖使蘇志偉（即控罪一的目標人物）及溫榮基（即控罪二的目標傷害人物）身體受嚴重傷害而非法及惡意傷害蘇溫二人。\n3.\n被告於2013年2月1日，於大埔大元邨的一遊戲機鋪內，因形跡可疑，鋪內的一些客人於機鋪外截停被告，並與被告發生糾纏。糾纏期間，一牛肉刀從被告身上跌出，被告被制服，警員到場拘捕被告人。\n4.\n被告於警誡下，承認他受一阿庭指使，持牛肉刀到遊戲機鋪傷人。阿庭答應會給被告人20,000元作報酬。\n5.\n於進一步調查下，被告作出進一步招認。他承認，案中是他的舊同事阿勝及另一男子阿庭，以金錢酬勞招攬被告，替他們到遊戲機以牛肉刀傷人。他們曾於大埔美榮樓5樓C室商量傷人的計劃、逃走路線等細節。被告亦嘗試於2013年1月28日持牛肉刀至遊戲機中心，等候阿庭及阿勝進一步指示，但行動當天告吹。於2月1日，被告獲指示到遊戲機中心以牛肉刀傷人，但於被告找到他的目標人物（即控罪一的蘇志偉）後，被告因膽怯，沒有下手，被告返回美榮樓5C室。於當晚稍後時間，被告獲告知另一目標人物於遊戲機中心內，被告按指示再到遊戲機中心找到新的目標人物（即控罪二的溫榮基），同樣地被告因膽怯，沒有下手。但被告其後於遊戲機中心外被人截停，稍後更被警察拘捕。\n6.\n被告過往並非任何刑事定罪紀錄。\n7.\n辯方於輕判請求中指出，被告現年27歲，未婚，與家人於屯門一公屋單位居住。被告於機場一物流公司任職剷車司機，月入約一萬六千元。被告於該物流公司工作已有七年。他曾接受中三教育。\n8.\n辯方指，本案被告受他的舊同事指使，該舊同事（即阿勝）以20,000元利誘被告人以刀傷人，被告當時因沉迷賭博，向下30,000元債項，於壓力下被告愚蠢地接受工作，答應以刀傷人。\n9.\n從被告家人、同事的求情信函可見，被告孝順父母，與同事的關係亦一直良好。被告的父親不幸於被告被捕後，與本年5月因病去世。就著案情，辯方指，猶幸被告於本案因膽怯，沒有真的以刀傷害受害人，案件不至弄得更為嚴重。被告於案中承認控罪，他亦一直與警方合作，他於區域法院690/2013一案中充當控方證人，指證案中的「阿勝」及「阿庭」。雖然最終法庭裁定二人無罪，但被告已盡力協助警方，辯方要求法庭酌情給予被告人一定的刑罰減免。\n10.\n法庭於量刑時，考慮了本案的案情、控罪的性質及辯方的輕判請求。被告於本案答允阿庭及阿勝以刀傷害他人，這是一極為嚴重的罪行。被告犯案時，因負債，於經濟壓力下答允阿勝及阿庭傷人，這不是輕判的理由。猶幸被告沒有執行阿勝及阿庭給他的指示，他最終因膽怯，沒有以刀傷害蘇溫二人。被告沒有下手傷人，這是大大減少了案中的刑責。\n11.\n但以案情而論，法庭認為控罪一及控罪二，經審訊後，適當的量刑基準應是30個月監禁。被告承認控罪，他亦並無任何犯罪前科，法庭應給予被告人三分之一的刑罰寬減，將刑罰從30個月監禁的量刑基準，下調至20個月監禁。\n12.\n被告於區域法院刑事案件690/2013擔任控方證人，頂證該案的被告人（即本案案情所透露的阿勝及阿庭）。雖然法庭最終裁定該案兩名被告無眾釋放，但法庭認為，法庭仍應酌情給被告人進一步的刑罰寬減。從法庭於該案的判詞可見，被告串謀傷人一事不是無中生有，只是被告頂證阿勝、阿庭的證供質素，不足以使法庭於無合理疑點的證案標準裁定阿勝、阿庭罪名成立。就著被告人協助控方出庭頂證阿勝及阿庭，法庭認為，法庭應給予被告人進一步的刑罰寬減，法庭再將量刑自20個月下調至18個月。除前述減刑因素，即承認控罪及協助控方，案中再沒有別的減刑理由。\n13.\n按前述原因，就著控罪一及控罪二，法庭每項控罪判被告人監禁18個月；控罪一及控罪二的刑罰是同期執行。\n陳仲衡\n區域法院法官", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2013/DCCC000330_2013.doc", + "file_name": "DCCC000330_2013.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkdc/2013_HKDC_940/DCCC000385_2012_abp_fallback.txt b/zh_cases_hkdc/2013_HKDC_940/DCCC000385_2012_abp_fallback.txt new file mode 100644 index 0000000..af05149 --- /dev/null +++ b/zh_cases_hkdc/2013_HKDC_940/DCCC000385_2012_abp_fallback.txt @@ -0,0 +1,8 @@ +DCCC 385/2012 香港特別行政區 區域法院 刑事案件2012年第385號 ---------------- 香港特別行政區 訴 鍾海亮 ---------------- 主審法官：區域法院法官陳仲衡 日期：　　2013年7月8日下午2時32分 出席人士：律政司高級檢控官Mr Sharman LAM，代表香港特別行政區 　　　　　練松柏律師行律師Ms Pauline LAM，代表被告人 控罪：　　[1] 至 [2] 串謀詐騙（Conspiracy to defraud） ---------------- 判刑理由書 ---------------- 本案被告人鍾海亮於本席席前承認案中兩項串謀詐騙罪。 控罪一 案發於2004年12月1日至2005年1月23日期間，被告承認他於控罪期間，於香港或其他地方，與蔡亞燕及其他身分不詳的人串謀詐騙香港特別行政區政府的婚姻登記官及入境處人員，即不誠實地： 向婚姻登記官虛假地表示被告人宜於蔡亞燕結婚； 促致蔡亞燕獲發婚姻登記官證明書，及 藉此誘使入境處入員作出違反其公職職責的行為，即當蔡亞燕其後向入境處人員提出申請時，向蔡亞燕批給許可證進入香港與配偶團聚。 控罪二 案發於2005年3月1日至2011年6月1日期間，被告承認他 +於控罪期間於香港或其他地方與陳秋嬋Tracy及其他身分不詳的人（包括Ken及David）串謀詐騙香港特別行政區政府的婚姻登記官及入境處人員，即不誠實地： 安排司徒逸華及其他十九名香港居民向婚姻登記官作出虛假陳述，表明該司徒逸華及該十九名香港居民已分別與二十名內地居民（下稱「據稱內地配偶」）結婚； 促致司徒逸華及該十九名香港居民的據稱內地配偶獲發婚姻登記官證明書，及 藉此誘使入境處人員作出違反其公職職責的行為，即當據稱內地配偶其後向入境處人員提出申請時，向他們每人批給許可證進入香港與配偶團聚。 案情指出，於2004年12月17日，香港婚姻登記處收到本案被告人與控罪所指的蔡亞燕的結婚登記及結婚通知。於2005年1月23日，被告人與蔡亞燕於大會堂婚姻登記處註冊結婚獲發婚姻證書。 入境處紀錄顯示，蔡亞燕於2004年12月16日至2005年1月2日與及2005年1月22日至2005年1月24日期間於香港停留，於被告人的一次警誡會面，被告人承認他與蔡亞燕於2005年的婚姻實是一假結婚行為。被告並承認，當時他因急需金錢，他從報章廣告看到一結婚廣告，他以電話查詢。於電話中，一名男子告知被告人，被告可與別人結婚賺取港幣6,000元報酬，被告最後同意參與有關的結婚行為，對方並著被告人於金鐘的婚姻註冊署提出結婚通知，被告人按指示行事。 就著被告人與蔡亞燕的婚姻通知書，被告指是由一名代理人填寫，被告人按代理人指示繳付了有關的申請費。有關被告人與蔡亞燕的結婚證書編號為BF4630，被告人指該結婚證書便是當局發給被告與蔡亞 +燕的結婚證書，於結婚註冊後，有關的代理人便取去有關文件，被告人是於結婚當天才與蔡亞燕首次見面。被告指，中間人要求被告人提供他的香港身分證及回鄉證副本與及他的香港地址給蔡亞燕，供對方申請於香港居留，最後中間人給了被告人6,000元作報酬，被告並指，他亦知道別的內地人士是會以假結婚到香港定居。 就著控罪二，被告承認他協助控罪所指的陳秋嬋處理有關的假結婚事宜。被告承認，於2005年期間，他協助陳秋嬋替別人安排假結婚，他並會因此賺取每天200至300元的報酬。被告承認，他是會陪同別人呈遞申請表、預約結婚與及申請辦理有關結婚的手續，但被告只替陳秋嬋工作數月，他認為她所作的不對，涉及欺騙行為，因此他便再沒有替陳秋嬋工作。被告並承認，自2005年4月開始他替陳秋嬋安排中港假結婚活動，被告人是陳秋嬋的跑腿及聯絡人，陳秋嬋會將參與假結婚人士的一些身分證明文件副本及資料交給被告人，被告人則會協助處理他們的結婚申請工作，他會替有關人士填寫表格，於結婚當天，他亦會帶同參與假結婚的人士到結婚註冊地點。被告並承認，陳秋嬋指示被告人從內地人士收取有關的費用，並將有關酬勞發給香港參與假結婚的人士。 於調查期間，被告承認案中撮要中列表所示的二十次婚姻安排便是被告人替陳秋嬋所處理的假結婚。被告亦承認，入境處人員於被告人住所中所搜獲的記事簿內是紀錄了有關假結婚的婦夫的詳細個人資料。被告承認，除了他本人外，有一男子Ken協助陳秋嬋處理假結婚事情；此外，有另一男子David亦參與假結婚的活動，被告協助陳秋嬋的時間是，自2005年3、4月間直至2005年5月下旬至6月上旬。 被告人過往並無任何刑事定罪紀錄。法庭聽取了辯方的輕判請 +求，法庭亦考慮了辯方於輕判請求中所呈遞的案例與及求情文件。法庭接納辯方於輕判請求中所指，被告人自被捕後全面與當局合作，他除承認有關指控外，他於案中亦於陳秋嬋的審訊中出庭替控方作證指證陳秋嬋，最後法庭亦是因信納被告人的證供而裁定陳秋嬋一項串謀詐騙罪罪成。有關陳秋嬋的串謀詐騙罪（亦即本案的控罪二），法庭得知陳秋嬋就著該串謀詐騙罪經審訊後被法庭判以監禁4年。 辯方指出，被告自被捕至被控本案兩項控罪中間經三年零兩個月，被告一直積極與檢控當局合作，最終亦按他的承諾出庭指證陳秋嬋。辯方指出，案發時被告人年紀約23、24歲，當時他失業。辯方指，被告人自2006年起一直積極接受職業訓練，他除從建造業訓練局取得建造業工人註冊的資格外，他亦於2010年於香港專業教育學院修讀電器技工課程，並獲頒電工技能證書。辯方指，被告人一直參與慈善工作，除定期到紅十字會輸血外，自2010年被告的母親過世後，被告亦將自己所學用於義工工作，他加入了義工工作隊免費替窮苦及有需要的單身家庭及獨居老人免費提供水泥、電工修理工作的服務。 從辯方呈交的案例，就著單一的假結婚訛騙行為，眾多案例指出，經審訊後悉當的量刑基準應是18個月監禁。法庭考慮了控罪一的案情、辯方的輕判請求及辯方呈遞的案例，法庭認為控罪一涉及被告人與陳秋嬋的假結婚行為，經審訊後，法庭認同18個月監禁是適當的量刑基準。被告人過往並無任何刑事定罪紀錄，他於案中承認控罪一，法庭給予被告人應得的三分之一認罪刑罰扣減，將刑罰下調至12個月監禁。 法庭同意，自被告人被當局拘捕至2012年5月9日被檢控，中間是有三年多的時間。法庭明白，檢控當局是需要一定時間調查本案，案中控罪二涉及多宗假結婚行為，當局需要花上相當時間搜集證據。三 +年多的延誤並不是控方的問題而造成，但平情而論，被告於自被捕後至2012年5月被檢控的三年多期間，被告是會承受相當的壓力，法庭認為，就著三年多的時間，法庭應給予被告人兩個月刑罰扣減，總刑罰自12個月監禁下調至10個月。席前資料顯示，被告人除了並無犯罪前科外，他具有正面良好的品格，法庭認為法庭可因被告的正面良好品格額外給予被告人一個月的刑罰扣減，法庭再將刑罰下調至9個月監禁。按前述原因，控罪一，法庭判處被告人監禁9個月。 就著控罪二，法庭考慮了被告人於案中所扮演的角色，無疑陳秋嬋是案件的主謀，被告的角色不如陳秋嬋吃重，法庭考慮了陳秋嬋經審訊後被法庭判以4年監禁，按被告人於案中的角色，法庭認為經審訊後適當的量刑基準應是三年零三個月監禁，即39個月監禁。被告人承認控罪及為初犯，法庭給予被告人他應有的三分之一刑罰扣減，將刑罰下調至26個月監禁。 被告人於案中替控方出庭指證陳秋嬋，他的證供亦最終被法庭接納為可信可靠，法庭認為法庭應因被告人替控方所提供的協助而給予被告人6個月的刑罰扣減，將刑罰自26個月下調至20個月。 如前述，被告人自09年被捕後至2012年被控案中的控罪中間是有三年零兩個月，被告期間是受到相當壓力，法庭會因此給被告人三個月的刑罰寬減，將刑罰進一步下調至17個月監禁。法庭接受被告是有正面良好品格，法庭給予被告人一個月的刑罰扣減，將刑罰下調至16個月。按前述原因，就著控罪二，法庭判處被告人監禁16個月。 法庭考慮了控罪一及控罪二的整體刑責及總量刑原則，控罪一，法庭認為被告人是為著金錢報酬而與一內地女子假結婚，幫助對方到香港定居；而就著控罪二，被告亦是為了金錢報酬而協助陳秋嬋處理合共 +二十宗的假結婚活動，法庭認為控罪一及控罪二的刑罰部分應是分期執行，一合共20個月的刑罰應可反映被告人於案中控罪一及控罪二的整體刑責。法庭指令，控罪一的9個月監禁當中4個月是與控罪二的刑罰分期執行，換言之，就著控罪一及控罪二，被告人的總刑罰是監禁20個月。 陳仲衡 區域法院法官 + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/zh_cases_hkdc/2013_HKDC_940/case.json b/zh_cases_hkdc/2013_HKDC_940/case.json new file mode 100644 index 0000000..53cf71c --- /dev/null +++ b/zh_cases_hkdc/2013_HKDC_940/case.json @@ -0,0 +1,26 @@ +{ + "Date": "8 Jul, 2013", + "Action No.": "DCCC385/2012", + "Neutral Cit.": "[2013] HKDC 940", + "case_title": "香港特別行政區 訴 鍾海亮", + "page_title": "香港特別行政區 訴 鍾海亮 | [2013] HKDC 940 | HKLII", + "case_history": [ + { + "name": "DCCC385/2012", + "link": "https://www.hklii.hk/tc/appealhistory/DCCC/2012/385" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkdc/2013/940", + "neutral_cit": "[2013] HKDC 940", + "court_code": "HKDC", + "content": "DCCC385/2012 香港特別行政區 訴 鍾海亮\nDCCC 385/2012\n香港特別行政區\n區域法院\n刑事案件2012年第385號\n----------------\n香港特別行政區\n訴\n鍾海亮\n----------------\n主審法官：\n區域法院法官陳仲衡\n日期：\n2013年7月8日下午2時32分\n出席人士：\n律政司高級檢控官Mr Sharman LAM，代表香港特別行政區\n練松柏律師行律師Ms Pauline LAM，代表被告人\n控罪：\n[1] 至 [2] 串謀詐騙（Conspiracy to defraud）\n----------------\n判刑理由書\n----------------\n1.\n本案被告人鍾海亮於本席席前承認案中兩項串謀詐騙罪。\n控罪一\n2.\n案發於2004年12月1日至2005年1月23日期間，被告承認他於控罪期間，於香港或其他地方，與蔡亞燕及其他身分不詳的人串謀詐騙香港特別行政區政府的婚姻登記官及入境處人員，即不誠實地：\n（i） 向婚姻登記官虛假地表示被告人宜於蔡亞燕結婚；\n（ii） 促致蔡亞燕獲發婚姻登記官證明書，及\n（iii） 藉此誘使入境處入員作出違反其公職職責的行為，即當蔡亞燕其後向入境處人員提出申請時，向蔡亞燕批給許可證進入香港與配偶團聚。\n控罪二\n3.\n案發於2005年3月1日至2011年6月1日期間，被告承認他於控罪期間於香港或其他地方與陳秋嬋Tracy及其他身分不詳的人（包括Ken及David）串謀詐騙香港特別行政區政府的婚姻登記官及入境處人員，即不誠實地：\n（i） 安排司徒逸華及其他十九名香港居民向婚姻登記官作出虛假陳述，表明該司徒逸華及該十九名香港居民已分別與二十名內地居民（下稱「據稱內地配偶」）結婚；\n（ii） 促致司徒逸華及該十九名香港居民的據稱內地配偶獲發婚姻登記官證明書，及\n（iii） 藉此誘使入境處人員作出違反其公職職責的行為，即當據稱內地配偶其後向入境處人員提出申請時，向他們每人批給許可證進入香港與配偶團聚。\n4.\n案情指出，於2004年12月17日，香港婚姻登記處收到本案被告人與控罪所指的蔡亞燕的結婚登記及結婚通知。於2005年1月23日，被告人與蔡亞燕於大會堂婚姻登記處註冊結婚獲發婚姻證書。\n5.\n入境處紀錄顯示，蔡亞燕於2004年12月16日至2005年1月2日與及2005年1月22日至2005年1月24日期間於香港停留，於被告人的一次警誡會面，被告人承認他與蔡亞燕於2005年的婚姻實是一假結婚行為。被告並承認，當時他因急需金錢，他從報章廣告看到一結婚廣告，他以電話查詢。於電話中，一名男子告知被告人，被告可與別人結婚賺取港幣6,000元報酬，被告最後同意參與有關的結婚行為，對方並著被告人於金鐘的婚姻註冊署提出結婚通知，被告人按指示行事。\n6.\n就著被告人與蔡亞燕的婚姻通知書，被告指是由一名代理人填寫，被告人按代理人指示繳付了有關的申請費。有關被告人與蔡亞燕的結婚證書編號為BF4630，被告人指該結婚證書便是當局發給被告與蔡亞燕的結婚證書，於結婚註冊後，有關的代理人便取去有關文件，被告人是於結婚當天才與蔡亞燕首次見面。被告指，中間人要求被告人提供他的香港身分證及回鄉證副本與及他的香港地址給蔡亞燕，供對方申請於香港居留，最後中間人給了被告人6,000元作報酬，被告並指，他亦知道別的內地人士是會以假結婚到香港定居。\n7.\n就著控罪二，被告承認他協助控罪所指的陳秋嬋處理有關的假結婚事宜。被告承認，於2005年期間，他協助陳秋嬋替別人安排假結婚，他並會因此賺取每天200至300元的報酬。被告承認，他是會陪同別人呈遞申請表、預約結婚與及申請辦理有關結婚的手續，但被告只替陳秋嬋工作數月，他認為她所作的不對，涉及欺騙行為，因此他便再沒有替陳秋嬋工作。被告並承認，自2005年4月開始他替陳秋嬋安排中港假結婚活動，被告人是陳秋嬋的跑腿及聯絡人，陳秋嬋會將參與假結婚人士的一些身分證明文件副本及資料交給被告人，被告人則會協助處理他們的結婚申請工作，他會替有關人士填寫表格，於結婚當天，他亦會帶同參與假結婚的人士到結婚註冊地點。被告並承認，陳秋嬋指示被告人從內地人士收取有關的費用，並將有關酬勞發給香港參與假結婚的人士。\n8.\n於調查期間，被告承認案中撮要中列表所示的二十次婚姻安排便是被告人替陳秋嬋所處理的假結婚。被告亦承認，入境處人員於被告人住所中所搜獲的記事簿內是紀錄了有關假結婚的婦夫的詳細個人資料。被告承認，除了他本人外，有一男子Ken協助陳秋嬋處理假結婚事情；此外，有另一男子David亦參與假結婚的活動，被告協助陳秋嬋的時間是，自2005年3、4月間直至2005年5月下旬至6月上旬。\n9.\n被告人過往並無任何刑事定罪紀錄。法庭聽取了辯方的輕判請求，法庭亦考慮了辯方於輕判請求中所呈遞的案例與及求情文件。法庭接納辯方於輕判請求中所指，被告人自被捕後全面與當局合作，他除承認有關指控外，他於案中亦於陳秋嬋的審訊中出庭替控方作證指證陳秋嬋，最後法庭亦是因信納被告人的證供而裁定陳秋嬋一項串謀詐騙罪罪成。有關陳秋嬋的串謀詐騙罪（亦即本案的控罪二），法庭得知陳秋嬋就著該串謀詐騙罪經審訊後被法庭判以監禁4年。\n10.\n辯方指出，被告自被捕至被控本案兩項控罪中間經三年零兩個月，被告一直積極與檢控當局合作，最終亦按他的承諾出庭指證陳秋嬋。辯方指出，案發時被告人年紀約23、24歲，當時他失業。辯方指，被告人自2006年起一直積極接受職業訓練，他除從建造業訓練局取得建造業工人註冊的資格外，他亦於2010年於香港專業教育學院修讀電器技工課程，並獲頒電工技能證書。辯方指，被告人一直參與慈善工作，除定期到紅十字會輸血外，自2010年被告的母親過世後，被告亦將自己所學用於義工工作，他加入了義工工作隊免費替窮苦及有需要的單身家庭及獨居老人免費提供水泥、電工修理工作的服務。\n11.\n從辯方呈交的案例，就著單一的假結婚訛騙行為，眾多案例指出，經審訊後悉當的量刑基準應是18個月監禁。法庭考慮了控罪一的案情、辯方的輕判請求及辯方呈遞的案例，法庭認為控罪一涉及被告人與陳秋嬋的假結婚行為，經審訊後，法庭認同18個月監禁是適當的量刑基準。被告人過往並無任何刑事定罪紀錄，他於案中承認控罪一，法庭給予被告人應得的三分之一認罪刑罰扣減，將刑罰下調至12個月監禁。\n12.\n法庭同意，自被告人被當局拘捕至2012年5月9日被檢控，中間是有三年多的時間。法庭明白，檢控當局是需要一定時間調查本案，案中控罪二涉及多宗假結婚行為，當局需要花上相當時間搜集證據。三年多的延誤並不是控方的問題而造成，但平情而論，被告於自被捕後至2012年5月被檢控的三年多期間，被告是會承受相當的壓力，法庭認為，就著三年多的時間，法庭應給予被告人兩個月刑罰扣減，總刑罰自12個月監禁下調至10個月。席前資料顯示，被告人除了並無犯罪前科外，他具有正面良好的品格，法庭認為法庭可因被告的正面良好品格額外給予被告人一個月的刑罰扣減，法庭再將刑罰下調至9個月監禁。按前述原因，控罪一，法庭判處被告人監禁9個月。\n13.\n就著控罪二，法庭考慮了被告人於案中所扮演的角色，無疑陳秋嬋是案件的主謀，被告的角色不如陳秋嬋吃重，法庭考慮了陳秋嬋經審訊後被法庭判以4年監禁，按被告人於案中的角色，法庭認為經審訊後適當的量刑基準應是三年零三個月監禁，即39個月監禁。被告人承認控罪及為初犯，法庭給予被告人他應有的三分之一刑罰扣減，將刑罰下調至26個月監禁。\n14.\n被告人於案中替控方出庭指證陳秋嬋，他的證供亦最終被法庭接納為可信可靠，法庭認為法庭應因被告人替控方所提供的協助而給予被告人6個月的刑罰扣減，將刑罰自26個月下調至20個月。\n15.\n如前述，被告人自09年被捕後至2012年被控案中的控罪中間是有三年零兩個月，被告期間是受到相當壓力，法庭會因此給被告人三個月的刑罰寬減，將刑罰進一步下調至17個月監禁。法庭接受被告是有正面良好品格，法庭給予被告人一個月的刑罰扣減，將刑罰下調至16個月。按前述原因，就著控罪二，法庭判處被告人監禁16個月。\n16.\n法庭考慮了控罪一及控罪二的整體刑責及總量刑原則，控罪一，法庭認為被告人是為著金錢報酬而與一內地女子假結婚，幫助對方到香港定居；而就著控罪二，被告亦是為了金錢報酬而協助陳秋嬋處理合共二十宗的假結婚活動，法庭認為控罪一及控罪二的刑罰部分應是分期執行，一合共20個月的刑罰應可反映被告人於案中控罪一及控罪二的整體刑責。法庭指令，控罪一的9個月監禁當中4個月是與控罪二的刑罰分期執行，換言之，就著控罪一及控罪二，被告人的總刑罰是監禁20個月。\n陳仲衡\n區域法院法官", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2012/DCCC000385_2012.doc", + "file_name": "DCCC000385_2012.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkdc/2016_HKDC_205/DCEC001799_2015.txt b/zh_cases_hkdc/2016_HKDC_205/DCEC001799_2015.txt new file mode 100644 index 0000000..71ffb34 --- /dev/null +++ b/zh_cases_hkdc/2016_HKDC_205/DCEC001799_2015.txt @@ -0,0 +1,145 @@ +DCEC 1799/2015 + + + +香港特別行政區 + 區域法院 +僱員補償案件2015年第1799號 + + -------------------- +與此宗申請案有關的兩方為： + + 申請人 伍艷娟 + 及 + 答辯人 興華促進有限公司 +-------------------- + +主審法官：區域法院法官羅雪梅內庭聆訊 +聆訊日期：2016年2月24日 +判決書日期：2016年3月1日 + +-------------------- +判決書 +-------------------- + +A.　背景 + +本宗僱員補償申請與僱員補償案件2014年第2023號（DCEC 2023 / 2014）（「案件（一）」）有關。案件（一）在2014年10月3日提出，申請人與本案的申請人是同一人，即伍女士；而兩宗案件的答辯人雖然不同，但也是有關連的，案件（一）的答辯人陳世偉（「陳先生」）是本案答辯人興華促進有限公司（「興華」）的股東及董事。 + +伍女士在案件（一）內聲稱，於1997年約1月受僱陳先生為船務文員時，因使用電腦而引致頸椎退化。本席於2015年1月23日應陳先生的申請，基於對象錯誤和超出訴訟時限兩個理據，剔除案件（一）。 + +伍女士上訴本席剔除案件（一）的命令，上訴庭在2015年8月27日駁回上訴。 + +B.　本宗僱員補償申請 + +針對陳先生的訴訟被上訴庭駁回後翌日，伍女士再次興訟，入稟本案，向興華申索僱員補償。 + +無容置疑，本案涉及的意外和工傷與案件（一）可以說是同出一轍，因為伍女士在本案申請書中的第3(3)項及第3(4)項有關意外發生的日期及地點內稱：「1997年1月2日開始，上環信德中心1311室內使用電腦，因本人身後是玻璃幕牆反光，根本不能看清電腦屏，而移向左方先完成工作，而弄傷頸椎5, 6, 7退化，和不合適坐椅而坐骨神經線馥炎至腰椎病」。針對伍女士的同一指稱，興華以此作為其中之一的剔除申請理據（見下述第17段）。 + +伍女士在2015年8月28日存檔本僱員補償申請書後，在2015年9月4日另外存檔一份36頁，標題為「聆訴文件冊」（「文件冊」）的文件。在文件冊內，伍女士除了重複附上本案申請書外，內裏主要詳載她過期提出本申請的理由，以及她的醫療報告和一些與她曾經在醫院接受治療的相片影印本 。 + +跟案件（一）一樣，興華在收到本申請書後，在第一次指示聆訊前，於2016年1月12日存檔根據香港法例第336H章《區域法院規則》第18號命令第19條規則（「規則」）的傳票（「傳票」），與及由陳先生發出，支持傳票申請的誓章，要求法院剔除本宗僱員補償申請。 + +興華存檔傳票後，伍女士在2016年1月15日存檔誓章，附呈8項主要是伍女士的醫療報告為證物。 + +伍女士仍是一如既往，親自應訊，興華仍然是由處理案件（一）的鍾大律師代表。伍女士在本傳票的第一次聆訊時確認，除了依據文件冊和她的誓章來反對本剔除申請外，並不需要存檔其他文件來反對興華的剔除申請。 + +C.　申請剔除法律原則和理據 +C.1.　法律原則 + +本傳票跟案件（一）的剔除申請一樣，同是依據第18號命令第19條規則第(1)段(a)至(d)項的所有規定提出 － 即是指伍女士的申請書： +無披露合理的訴訟因由； +惡意中傷、瑣屑無聊或無理纏擾； +可能會對有關訴訟的公平審訊造成損害、妨礙或延遲；及/或 +濫用法庭的法律程序。 + +有關上述第18號命令第19條規則的法律原則，本席在剔除案件（一）的裁決時已經討論過，不在此重複。 + +C.2.　申請理據 +C.2.1.　延遲訴訟 + +伍女士提出案件（一）時，是在指稱意外17年後，所以超過了《僱員補償條例》第14條所訂明的24個月訴訟時限，由於就着她的延誤訴訟未能提供合理辯解，所以構成案件（一）被剔除的其中一個主因。雖然伍女士在案件（一）被剔除後立即提出本案，但本案比案件（一）更為遲多一年，即指稱意外18年後提出訴訟，所以興華也以此為其剔除申請的第二個理據。 + +鍾大律師指出，在文件冊內，伍女士所稱的過期申請理由，主要是聲稱她在1997年起，因受傷患困擾，而四出奔波，可是她並沒有提及這些事情跟她延遲訴訟有何關連。 + +鍾大律師進一步指出，根據伍女士過期申請的理由，伍女士聲稱在1997年受傷後的兩年，她先後到訪澳洲和加拿大，並受僱於不同公司，由此可見，伍女士明顯有能力在兩年的申索時限內，提出申請，而無需等到2014年，才首次提出案件（一）的申索。在這十多年的時間，她有足夠時間及活動能力對聲稱的意外提出申索。 + +另外，鍾大律師更指出，伍女士的誓章內所提供的醫療報告及其他文件亦未能支持她過期申請的理由或是次申索的理據。 + +鍾大律師因此陳述稱，把本席與及上訴庭在案件（一）所採納的曾來發 對 新福港 [2011] 4 HKLRD 336一案內所列的法庭考慮的各項因素，應用於伍女士在本案提出的過期申請理由，鍾大律師指出，伍女士仍然不能對她極度嚴重的延誤提出任何「合理辯解」，可讓法庭容許伍女士再次提出申索。 + +C.2.2.　違反「既判案件」的原則 + +由於本案指稱的意外和伍女士所受的傷涉及案件（一）同一的工傷，所以興華在本剔除申請的首要理據，指稱本案違反了「既判案件」的原則。此原則簡單而言是指一案不可重複再訴。 + +鍾大律師在陳詞書中稱，所謂「既判案件」，是指有關訴訟所涉乃要求法庭作出裁決的事項，包涵清楚屬於該訴訟涉及的議題及事實，而該些議題及事實清楚可在之前的訴訟提出，那麼便應在該訴訟中提出，交由法庭作出裁決，而不應後來展開另一訴訟，提出該些議題或事實（見Hong Kong Civil Procedure「香港民事訴訟程序」2016年，第一冊，第453至454頁，第18/19/11段）。 + +鍾大律師在陳詞書內指出，由於本案中所聲稱的意外和案件（一）相同，然而，案件（一）已被剔除，而剔除判決也得到上訴庭確認，所以，有關本案要求法庭作出裁決的事項，即是，關於延誤訴訟，伍女士未能提供合理辯解的事實，在案件（一）已交由法庭作出裁決，伍女士不應再就同一議題及事實，展開另一訴訟。 + +鍾大律師續稱，伍女士在本案不像提出案件（一）時，弄錯了訴訟對象，而興華確實是她所聲稱意外發生時僱用她的公司，但伍女士在本案其實是再次嘗試對她延遲了十多年的申索提出過期的理由，作為她的「合理辯解」，鍾大律師稱，她這樣做明顯是違反了「既判案件」的廣義原則：即與訟人士沒有在較早前的案件中，提出現在訴訟中的事宜，是屬於濫用法律程序（見Brisbane City Council and Myer Shopping Centres Pty Ltd v Attorney-General for Queensland [1979] AC 411，第425頁）。 + +鍾大律師在聆訊中陳詞稱，雖然興華於伍女士聲稱的意外日期（即1997年1月2日）是伍女士的僱主，但關於延誤提出申索所提供的合理辯解，伍女士在本案所聲稱的意外與及依據的證據跟案件（一）是一樣的，既然案件（一）已於較早前被法庭剔除，伍女士把大部份相同的證據再次在本案興訟，會損害法庭的信譽，而司法管轄權會因而被啟動；再者，伍女士在案件（一）並沒有蒙受不利因素，可令法庭酌情容許伍女士再次興訟（見King’s City Holdings Ltd v De Monsa Investments Ltd [2013] 4 HKC 450，第467至468頁）。因此，本案明顯違反「既判案件」的廣義原則。 + +鍾大律師因此陳詞稱，引用King’s City Holdings Ltd一案內所列出有關「既判案件」廣義原則的概要，伍女士不可就之前的法律程序完結後再就同一聲稱意外另行對興華提出申索，及對於其嚴重延誤再次提出較詳細及重複的解釋，這做法屬於濫用法庭程序。大律師稱，單就這一點，足以令法庭有權以濫用法庭程序為由，剔除本案的申請書（見King’s City Holdings Ltd第460頁I行）。 + +D.　延遲訴訟理由 + +伍女士於聆訊時稱，她之所以延遲訴訟是因為她在2013年才知道她的傷勢惡化，所以到2014年才展開案件（一），向陳先生訴訟，但陳先生否認僱主身份，及至她上訴本席命令，上訴庭拒絕她呈交醫療報告要求及駁回上訴後，她便立即提交本索償。 + +伍女士於聆訊時進一步稱，在文件冊內的內地和香港醫院的醫療報告不但可以證明，她傷勢在2013年惡化，其中一份由中山醫院發出的出院記錄，更可證明她曾告訴醫生她的頸椎和腰椎的傷超過10年；另外，文件冊內一封日期2015年9月4由勞工處發給興華的信，可以證明她在1997年所受的工傷。 + +E.　討論和裁決理由 + +正如大律師指出（見第19段），有關本案延遲訴訟，伍女士是否有「合理辯解」這議題，法院在案件（一）已經定奪。所以，關於超出訴訟時限這議題，伍女士似乎是違反了上述所討論的「既判案件」原則。 + +根據伍女士在聆訊時確認，她所有支持她延誤訴訟的理由已經全部載於文件冊和誓章內，雖然這些證供和文件，似乎在案件（一）內是沒有的，例如醫療報告和勞工處發出的文件是新的文件，但毫無疑問，伍女士在本案的依據事實和聲稱，卻是跟案件（一）相若。 + +無論如何，本席認為伍女士在本案所提出的新文件和證供，如大律師所稱，並不足以構成「合理辯解」。理由如下： + +在本申請書內，伍女士聲稱意外日期為1997年1月2日，然而，在文件冊內，有關意外的描述，頗為含糊，她不但沒有明確說出她在哪一天在工作時受傷，更沒有交代她如何弄傷。她只是籠統地稱：「坐位身後是玻璃窗…根本不能看清楚電腦顯示屏！申請人只能先把電腦顯示屏移至左手方向完成工作，1997年初已照MRI證實申請人的頸椎5，6，7退化；另申請人坐椅太深而引至坐骨神經線發炎至今腰間盤病」。據此，伍女士只是說她因電腦顯示屏的問題而需作出調整，繼後，她驗出頸椎退化；而坐椅問題導致神經線發炎，但對於她在何日或怎樣受傷這些重要的事情，似乎欠缺交代。 + +根據上述第27(1)段有關意外的描述顯示，伍女士在1997年開始受到她在本案指稱由工作而引起的頸椎傷患，根據她的證供，她應可在24個月訴訟期限還未過時，即1997年1月至1999年1月的兩年，向興華提出她指稱的意外索償；尤其是，在1998年7月25日，被興華辭退後，她既然已不是興華的僱員，更可毫無顧忌與及有更多時間向興華興訟。可是，伍女士在文件册的「過期申請理由」內所顯示，對於現時的指稱，不但沒有通知興華，伍女士在離開興華後，在1999年和2000年期間，似乎將精神和時間，放於到澳洲和加拿大探家人和朋友，後來，由於她過度使用手機，導致「癲癇症」發作，才回香港醫治。 + + +在過了兩年的訴訟時限，伍女士雖然在2001年和2002年似乎身體狀況欠佳，而沒有穩定工作，但她在展開案件（一）前的10年多，即是2000年至2014年，伍女士曾在不同的公司任職： +2003年紡織公司和印刷公司； +2003年至2005年6月法國公司； +2006年至2008年5月台資公司； +2009年11月至2011年3月傢俱公司； +最後的一份工是2013年在進出口公司任職了一個月船務文員。 +從以上顯示，伍女士在那段約10年的時間，先後在6間不同的公司工作，其中的兩份工還任職超過兩年（法國和台資公司）。雖然在這10年期間，她似乎不斷生病，但她仍然有工作能力。因此本席相信她在那段時間，若她真是有意向興華提出訴訟，她應有充足的時間和能力。 + +在2013年之後，根據文件册，伍女士的健康和精神狀態似乎並不穩定，但反之，伍女士竟然在這較以往差的狀態下，在2014年可親自入禀案件（一）。 + +雖然伍女士在案件（一）的剔除命令被上訴庭駁回後，隨即展開本案，並沒有再耽誤拖延，但她在展開案件（一）時，延誤了17年才訴訟，是屬於非常長的耽誤，根據本席在剔除案件（一）的判案書內曾引述 曾來發 所列出要考慮的各點因素，伍女士在此情況下，需要證明她具有極高的申索成功機會。 + +伍女士現時所提出的延誤申請原因，雖然明顯比案件（一）內的較為詳細，而興華亦的確為伍女士聲稱意外時的僱主，可是，本席於詳細考慮了伍女士現時所提出的延誤申請原因和所有證供後，仍然如案件（一）一樣，認為伍女士提出的延遲原因，非常薄弱和牽強，不足以作為合理辯解。 + +本案雖然再沒有「錯誤對象」的問題，基於以上的討論，如本席在剔除案件（一）裁決時說，如繼續讓伍女士興訟一宗18年前她指稱的工傷，會對她的前僱主興華不公平，尤其是關於證據的搜集或遺失、證人的存在與否、證人記憶等問題。若讓訴訟程序繼續，將會構成瑣屑無聊，無理纏擾，會對有關訴訟的公平審訊造成損害、妨礙或延遲與及濫用法庭的法律程序。 + +總括而言，本席接受興華依據的兩個理由，認為本案所涉及延遲訴訟的事實，已在案件（一）裁決，若容許伍女士繼續訴訟，是容她違反上述「既判案件」原則。另外，本席認為伍女士未能提供合理辯解，可令法庭可酌情受理她的過期補償申請。 + +再者，對於伍女士提出的延誤解釋，上訴法庭法官朱法官，在伍女士針對案件（一）剔除命令的上訴裁決判決書內，權威地指出： + +「申請人的申索是在超逾法例規定的24個月訴訟期限提出，這點是毋容置疑的。誠如原審法官指出（判決書第16段），根據《僱員補償條例》第14(4)條，倘若申請人能就延誤提供合理辯解，法庭可酌情受理她的補償申請。綜觀申請人提交的申請書、誓章及作出的陳詞，申請人只是指這些年來身體健康欠佳，她不諳法律。但申請人並沒有說明她患病與她在悠長的17年期間沒有作出補償申請的關係。另一方面，申請人自1997年已認為工作用的電腦檯和坐椅不合規格，又已知道頸椎受傷，她不知道有訴訟時限不能構成合理辯解」。 + +本席採納朱法官上述所說，認為朱法官所說的仍然適用於本案。因此，基於以上所有原因，本席接納興華的申請，剔除申請書。 + +F.　命令 + +按照傳票第1段內提出的申請，命令剔除申請書。 + +本席命令申請人須支付答辯人本傳票與及申請書的訟費，包括過往留後處理的費用，批發2016年2月24日聆訊的大律師証書。 + +本席以簡易程序評定訟費，根據訟費陳述書，答辯人訟費總額為$30,630。鑑於本案與案件（一）有很多相同之處，而答辯人在本案也是聘用同一律師行和大律師，所以所需的時間應大大減少，本席評定合理的訟費為$15,450（即是批准訟費陳述書內「B項」人手處理工作：$450；「C項」聯絡：$5,000；「D項」專業工作：$5,000；「E項」大律師：$5,000）。 + +申請人須支付答辯人本傳票與及申請書$15,450的訟費命令，為暫准訟費命令，除非任何一方於本判決書日期起計14天內，以傳召訴訟各方傳票提出更改此訟費命令，否則此訟費命令則成為絕對命令。 + + + + + （羅雪梅） + 區域法院法官 + +申請人：無律師代表，親自應訊 +答辯人：由李智聰律師事務所轉聘鍾穎詩大律師代表 \ No newline at end of file diff --git a/zh_cases_hkdc/2016_HKDC_205/case.json b/zh_cases_hkdc/2016_HKDC_205/case.json new file mode 100644 index 0000000..3d35b63 --- /dev/null +++ b/zh_cases_hkdc/2016_HKDC_205/case.json @@ -0,0 +1,26 @@ +{ + "Date": "1 Mar, 2016", + "Action No.": "DCEC1799/2015", + "Neutral Cit.": "[2016] HKDC 205", + "case_title": "伍艷娟 對 興華促進有限公司", + "page_title": "伍艷娟 對 興華促進有限公司 | [2016] HKDC 205 | HKLII", + "case_history": [ + { + "name": "DCEC1799/2015", + "link": "https://www.hklii.hk/tc/appealhistory/DCEC/2015/1799" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkdc/2016/205", + "neutral_cit": "[2016] HKDC 205", + "court_code": "HKDC", + "content": "DCEC1799/2015 伍艷娟 對 興華促進有限公司\nDCEC 1799/2015\n香港特別行政區\n區域法院\n僱員補償案件2015年第1799號\n--------------------\n與此宗申請案有關的兩方為：\n申請人\n伍艷娟\n及\n答辯人\n興華促進有限公司\n--------------------\n主審法官：\n區域法院法官羅雪梅內庭聆訊\n聆訊日期：\n2016年2月24日\n判決書日期：\n2016年3月1日\n--------------------\n判決書\n--------------------\nA.\n背景\n1.\n本宗僱員補償申請與僱員補償案件2014年第2023號（DCEC 2023 / 2014）（「\n案件（一）\n」）有關。案件（一）在2014年10月3日提出，申請人與本案的申請人是同一人，即伍女士；而兩宗案件的答辯人雖然不同，但也是有關連的，案件（一）的答辯人陳世偉（「\n陳先生\n」）是本案答辯人興華促進有限公司（「\n興華\n」）的股東及董事。\n2.\n伍女士在案件（一）內聲稱，於1997年約1月受僱陳先生為船務文員時，因使用電腦而引致頸椎退化。本席於2015年1月23日應陳先生的申請，基於對象錯誤和超出訴訟時限兩個理據，剔除案件（一）\n[1]\n。\n3.\n伍女士上訴本席剔除案件（一）的命令，上訴庭在2015年8月27日駁回上訴\n[2]\n。\nB.\n本宗僱員補償申請\n4.\n針對陳先生的訴訟被上訴庭駁回後翌日，伍女士再次興訟，入稟本案，向興華申索僱員補償。\n5.\n無容置疑，本案涉及的意外和工傷與案件（一）可以說是同出一轍，因為伍女士在本案申請書中的第3(3)項及第3(4)項有關意外發生的日期及地點內稱：「1997年1月2日開始，上環信德中心1311室內使用電腦，因本人身後是玻璃幕牆反光，根本不能看清電腦屏，而移向左方先完成工作，而弄傷頸椎5, 6, 7退化，和不合適坐椅而坐骨神經線馥炎至腰椎病」。針對伍女士的同一指稱，興華以此作為其中之一的剔除申請理據（見下述第17段）。\n6.\n伍女士在2015年8月28日存檔本僱員補償申請書後，在2015年9月4日另外存檔一份36頁，標題為「聆訴文件冊」（「\n文件冊\n」）的文件。在文件冊內，伍女士除了重複附上本案申請書外，內裏主要詳載她過期提出本申請的理由，以及她的醫療報告和一些與她曾經在醫院接受治療的相片影印本 。\n7.\n跟案件（一）一樣，興華在收到本申請書後，在第一次指示聆訊前，於2016年1月12日存檔根據香港法例\n第336H章\n《區域法院規則》\n第18號命令\n第19條\n規則（「\n規則\n」）的傳票（「\n傳票\n」），與及由陳先生發出，支持傳票申請的誓章，要求法院剔除本宗僱員補償申請。\n8.\n興華存檔傳票後，伍女士在2016年1月15日存檔誓章，附呈8項主要是伍女士的醫療報告為證物。\n9.\n伍女士仍是一如既往，親自應訊，興華仍然是由處理案件（一）的鍾大律師代表。伍女士在本傳票的第一次聆訊時確認，除了依據文件冊和她的誓章來反對本剔除申請外，並不需要存檔其他文件來反對興華的剔除申請。\nC.\n申請剔除法律原則和理據\nC.1.\n法律原則\n10.\n本傳票跟案件（一）的剔除申請一樣，同是依據\n第18號命令\n第19條\n規則第(1)段(a)至(d)項的所有規定提出 － 即是指伍女士的申請書：\n(a) 無披露合理的訴訟因由；\n(b) 惡意中傷、瑣屑無聊或無理纏擾；\n(c) 可能會對有關訴訟的公平審訊造成損害、妨礙或延遲；及/或\n(d) 濫用法庭的法律程序。\n11.\n有關上述\n第18號命令\n第19條\n規則的法律原則，本席在剔除案件（一）的裁決時已經討論過\n[3]\n，不在此重複。\nC.2.\n申請理據\nC.2.1.\n延遲訴訟\n12.\n伍女士提出案件（一）時，是在指稱意外17年後，所以超過了\n《僱員補償條例》\n第14條\n所訂明的24個月訴訟時限，由於就着她的延誤訴訟未能提供合理辯解，所以構成案件（一）被剔除的其中一個主因。雖然伍女士在案件（一）被剔除後立即提出本案，但本案比案件（一）更為遲多一年，即指稱意外18年後提出訴訟，所以興華也以此為其剔除申請的第二個理據。\n13.\n鍾大律師指出，在文件冊內，伍女士所稱的過期申請理由，主要是聲稱她在1997年起，因受傷患困擾，而四出奔波，可是她並沒有提及這些事情跟她延遲訴訟有何關連。\n14.\n鍾大律師進一步指出，根據伍女士過期申請的理由，伍女士聲稱在1997年受傷後的兩年，她先後到訪澳洲和加拿大，並受僱於不同公司，由此可見，伍女士明顯有能力在兩年的申索時限內，提出申請，而無需等到2014年，才首次提出案件（一）的申索。在這十多年的時間，她有足夠時間及活動能力對聲稱的意外提出申索。\n15.\n另外，鍾大律師更指出，伍女士的誓章內所提供的醫療報告及其他文件亦未能支持她過期申請的理由或是次申索的理據。\n16.\n鍾大律師因此陳述稱，把本席與及上訴庭在案件（一）所採納\n[4]\n的\n曾來發對新福港\n[2011] 4 HKLRD 336\n一案內所列的法庭考慮的各項因素，應用於伍女士在本案提出的過期申請理由，鍾大律師指出，伍女士仍然不能對她極度嚴重的延誤提出任何「合理辯解」，可讓法庭容許伍女士再次提出申索。\nC.2.2.\n違反「既判案件」的原則\n17.\n由於本案指稱的意外和伍女士所受的傷涉及案件（一）同一的工傷，所以興華在本剔除申請的首要理據，指稱本案違反了「既判案件」的原則。此原則簡單而言是指一案不可重複再訴。\n18.\n鍾大律師在陳詞書中稱，所謂「既判案件」，是指有關訴訟所涉乃要求法庭作出裁決的事項，包涵清楚屬於該訴訟涉及的議題及事實，而該些議題及事實清楚可在之前的訴訟提出，那麼便應在該訴訟中提出，交由法庭作出裁決，而不應後來展開另一訴訟，提出該些議題或事實（見\nHong Kong Civil Procedure\n「香港民事訴訟程序」\n2016\n年，第一冊，第453至454頁，第18/19/11段）。\n19.\n鍾大律師在陳詞書內指出，由於本案中所聲稱的意外和案件（一）相同，然而，案件（一）已被剔除，而剔除判決也得到上訴庭確認，所以，有關本案要求法庭作出裁決的事項，即是，關於延誤訴訟，伍女士未能提供合理辯解的事實，在案件（一）已交由法庭作出裁決，伍女士不應再就同一議題及事實，展開另一訴訟。\n20.\n鍾大律師續稱，伍女士在本案不像提出案件（一）時，弄錯了訴訟對象，而興華確實是她所聲稱意外發生時僱用她的公司，但伍女士在本案其實是再次嘗試對她延遲了十多年的申索提出過期的理由，作為她的「合理辯解」，鍾大律師稱，她這樣做明顯是違反了「既判案件」的廣義原則：即與訟人士沒有在較早前的案件中，提出現在訴訟中的事宜，是屬於濫用法律程序（見\nBrisbane City Council and Myer Shopping Centres Pty Ltd v Attorney-General for Queensland\n[1979] AC 411\n，第425頁）。\n21.\n鍾大律師在聆訊中陳詞稱，雖然興華於伍女士聲稱的意外日期（即1997年1月2日）是伍女士的僱主，但關於延誤提出申索所提供的合理辯解，伍女士在本案所聲稱的意外與及依據的證據跟案件（一）是一樣的，既然案件（一）已於較早前被法庭剔除，伍女士把大部份相同的證據再次在本案興訟，會損害法庭的信譽，而司法管轄權會因而被啟動；再者，伍女士在案件（一）並沒有蒙受不利因素，可令法庭酌情容許伍女士再次興訟（見\nKing’s City Holdings Ltd v De Monsa Investments Ltd\n[2013] 4 HKC 450\n，第467至468頁）。因此，本案明顯違反「既判案件」的廣義原則。\n22.\n鍾大律師因此陳詞稱，引用\nKing’s\nCity Holdings Ltd\n一案內所列出有關「既判案件」廣義原則的概要，伍女士不可就之前的法律程序完結後再就同一聲稱意外另行對興華提出申索，及對於其嚴重延誤再次提出較詳細及重複的解釋，這做法屬於濫用法庭程序。大律師稱，單就這一點，足以令法庭有權以濫用法庭程序為由，剔除本案的申請書（見\nKing’s City Holdings Ltd\n第460頁I行）。\nD.\n延遲訴訟理由\n23.\n伍女士於聆訊時稱，她之所以延遲訴訟是因為她在2013年才知道她的傷勢惡化，所以到2014年才展開案件（一），向陳先生訴訟，但陳先生否認僱主身份，及至她上訴本席命令，上訴庭拒絕她呈交醫療報告要求及駁回上訴後，她便立即提交本索償。\n24.\n伍女士於聆訊時進一步稱，在文件冊內的內地和香港醫院的醫療報告\n[5]\n不但可以證明，她傷勢在2013年惡化，其中一份由中山醫院發出的出院記錄\n[6]\n，更可證明她曾告訴醫生她的頸椎和腰椎的傷超過10年；另外，文件冊內一封日期2015年9月4由勞工處發給興華的信\n[7]\n，可以證明她在1997年所受的工傷。\nE.\n討論和裁決理由\n25.\n正如大律師指出（見第19段），有關本案延遲訴訟，伍女士是否有「合理辯解」這議題，法院在案件（一）已經定奪。所以，關於超出訴訟時限這議題，伍女士似乎是違反了上述所討論的「既判案件」原則。\n26.\n根據伍女士在聆訊時確認，她所有支持她延誤訴訟的理由已經全部載於文件冊和誓章內，雖然這些證供和文件，似乎在案件（一）內是沒有的，例如醫療報告和勞工處發出的文件是新的文件，但毫無疑問，伍女士在本案的依據事實和聲稱，卻是跟案件（一）相若。\n27.\n無論如何，本席認為伍女士在本案所提出的新文件和證供，如大律師所稱，並不足以構成「合理辯解」。理由如下：\n（1）在本申請書內，伍女士聲稱意外日期為1997年1月2日，然而，在文件冊內，有關意外的描述，頗為含糊，她不但沒有明確說出她在哪一天在工作時受傷，更沒有交代她如何弄傷。她只是籠統地稱：「坐位身後是玻璃窗…根本不能看清楚電腦顯示屏！申請人只能先把電腦顯示屏移至左手方向完成工作，1997年初已照MRI證實申請人的頸椎5，6，7退化；另申請人坐椅太深而引至坐骨神經線發炎至今腰間盤病」。據此，伍女士只是說她因電腦顯示屏的問題而需作出調整，繼後，她驗出頸椎退化；而坐椅問題導致神經線發炎，但對於她在何日或怎樣受傷這些重要的事情，似乎欠缺交代。\n（2）根據上述第27(1)段有關意外的描述顯示，伍女士在1997年開始受到她在本案指稱由工作而引起的頸椎傷患，根據她的證供，她應可在24個月訴訟期限還未過時，即1997年1月至1999年1月的兩年，向興華提出她指稱的意外索償；尤其是，在1998年7月25日\n[8]\n，被興華辭退後，她既然已不是興華的僱員，更可毫無顧忌與及有更多時間向興華興訟。可是，伍女士在文件册的「過期申請理由」內所顯示，對於現時的指稱，不但沒有通知興華，伍女士在離開興華後，在1999年和2000年期間，似乎將精神和時間，放於到澳洲和加拿大探家人和朋友，後來，由於她過度使用手機，導致「癲癇症」發作，才回香港醫治。\n（3）在過了兩年的訴訟時限，伍女士雖然在2001年和2002年似乎身體狀況欠佳，而沒有穩定工作，但她在展開案件（一）前的10年多，即是2000年至2014年，伍女士曾在不同的公司任職：\n（i） 2003年紡織公司和印刷公司；\n（ii） 2003年至2005年6月法國公司；\n（iii）2006年至2008年5月台資公司；\n（iv）2009年11月至2011年3月傢俱公司；\n（v） 最後的一份工是2013年在進出口公司任職了一個月船務文員。\n從以上顯示，伍女士在那段約10年的時間，先後在6間不同的公司工作，其中的兩份工還任職超過兩年（法國和台資公司）。雖然在這10年期間，她似乎不斷生病，但她仍然有工作能力。因此本席相信她在那段時間，若她真是有意向興華提出訴訟，她應有充足的時間和能力。\n（4）在2013年之後，根據文件册，伍女士的健康和精神狀態似乎並不穩定，但反之，伍女士竟然在這較以往差的狀態下，在2014年可親自入禀案件（一）。\n28.\n雖然伍女士在案件（一）的剔除命令被上訴庭駁回後，隨即展開本案，並沒有再耽誤拖延，但她在展開案件（一）時，延誤了17年才訴訟，是屬於非常長的耽誤，根據本席在剔除案件（一）的判案書內曾引述\n曾來發\n所列出要考慮的各點因素，伍女士在此情況下，需要證明她具有極高的申索成功機會。\n29.\n伍女士現時所提出的延誤申請原因，雖然明顯比案件（一）內的較為詳細，而興華亦的確為伍女士聲稱意外時的僱主，可是，本席於詳細考慮了伍女士現時所提出的延誤申請原因和所有證供後，仍然如案件（一）一樣，認為伍女士提出的延遲原因，非常薄弱和牽強，不足以作為合理辯解。\n30.\n本案雖然再沒有「錯誤對象」的問題，基於以上的討論，如本席在剔除案件（一）裁決時說，如繼續讓伍女士興訟一宗18年前她指稱的工傷，會對她的前僱主興華不公平，尤其是關於證據的搜集或遺失、證人的存在與否、證人記憶等問題。若讓訴訟程序繼續，將會構成瑣屑無聊，無理纏擾，會對有關訴訟的公平審訊造成損害、妨礙或延遲與及濫用法庭的法律程序。\n31.\n總括而言，本席接受興華依據的兩個理由，認為本案所涉及延遲訴訟的事實，已在案件（一）裁決，若容許伍女士繼續訴訟，是容她違反上述「既判案件」原則。另外，本席認為伍女士未能提供合理辯解，可令法庭可酌情受理她的過期補償申請。\n32.\n再者，對於伍女士提出的延誤解釋，上訴法庭法官朱法官，在伍女士針對案件（一）剔除命令的上訴裁決判決書內，權威地指出\n[9]\n：\n「申請人的申索是在超逾法例規定的24個月訴訟期限提出，這點是毋容置疑的。誠如原審法官指出（判決書第16段），根據\n《僱員補償條例》\n第14(4)條\n，倘若申請人能就延誤提供合理辯解，法庭可酌情受理她的補償申請。綜觀申請人提交的申請書、誓章及作出的陳詞，申請人只是指這些年來身體健康欠佳，她不諳法律。但申請人並沒有說明她患病與她在悠長的17年期間沒有作出補償申請的關係。另一方面，申請人自1997年已認為工作用的電腦檯和坐椅不合規格，又已知道頸椎受傷，她不知道有訴訟時限不能構成合理辯解」。\n33.\n本席採納朱法官上述所說，認為朱法官所說的仍然適用於本案。因此，基於以上所有原因，本席接納興華的申請，剔除申請書。\nF.\n命令\n34.\n按照傳票第1段內提出的申請，命令剔除申請書。\n35.\n本席命令申請人須支付答辯人本傳票與及申請書的訟費，包括過往留後處理的費用，批發2016年2月24日聆訊的大律師証書。\n36.\n本席以簡易程序評定訟費，根據訟費陳述書，答辯人訟費總額為$30,630。鑑於本案與案件（一）有很多相同之處，而答辯人在本案也是聘用同一律師行和大律師，所以所需的時間應大大減少，本席評定合理的訟費為$15,450（即是批准訟費陳述書內「B項」人手處理工作：$450；「C項」聯絡：$5,000；「D項」專業工作：$5,000；「E項」大律師：$5,000）。\n37.\n申請人須支付答辯人本傳票與及申請書$15,450的訟費命令，為暫准訟費命令，除非任何一方於本判決書日期起計14天內，以傳召訴訟各方傳票提出更改此訟費命令，否則此訟費命令則成為絕對命令。\n（羅雪梅）\n區域法院法官\n申請人： 無律師代表，親自應訊\n答辯人：由李智聰律師事務所轉聘鍾穎詩大律師代表\n[1]\n伍艷娟對陳世偉\n，DCEC 2023/2014，（未經報導），2015年1月23日（「\nDCEC 2023/2014\n」）\n[2]\n伍艷娟對陳世偉\n，CACV 45/2015，（未經報導）， 2015年8月27日（「\nCACV45/2015\n」）\n[3]\nDCEC 2023/2014，第4至11段\n[4]\nDCEC 2023/2014，第35至36段；CACV 45/2015，第20段\n[5]\n聆訊文件夾第42至67頁\n[6]\n聆訊文件夾第44頁\n[7]\n聆訊文件夾第71頁\n[8]\n陳先生支持剔除申請誓章，聆訊文件夾第23頁\n[9]\nCACV 45/2015，第19段", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2015/DCEC001799_2015.doc", + "file_name": "DCEC001799_2015.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkdc/2016_HKDC_459/DCMP002569_2015_abp_fallback.txt b/zh_cases_hkdc/2016_HKDC_459/DCMP002569_2015_abp_fallback.txt new file mode 100644 index 0000000..4910bbd --- /dev/null +++ b/zh_cases_hkdc/2016_HKDC_459/DCMP002569_2015_abp_fallback.txt @@ -0,0 +1,6 @@ +DCMP 2569/2015 香港特別行政區 區域法院 雜項案件2015年第2569號 --------------------- 原告人 PRIMECREDIT LIMITED 訴 被告人 WONG MEI YAN PATRICIA -------------------- 主審法官：區域法院暫委法官萬可宜內庭聆訊 聆訊日期：2016年4月25日 判決理由書日期：2016年4月28日 -------------------- 判決理由書 -------------------- 這是上訴人黃薇欣就聆案官杜潔玲於2015年12月29日作出的命令而提出之上訴。 +該命令為法庭因上訴人未有就DCCJ 3283/2014的判決還款，而批予上訴人的物業的押記令作出之收樓及售樓令。 首先，上訴人之申請已逾時三個多月。上訴人曾於2016年3月29日申請暫緩執行杜聆案官之命令，但並沒有同時申請向該命令上訴。 法庭在考慮應否延展上訴時限時，法庭需考慮：－ 延誤時間的長度：上述申請已逾時三個多月。 延誤的原因：上訴人聲稱她沒有收過有關文件。法庭認為這並不可信；上訴人有親身出席2015年12月29日杜聆案官之聆訊，對方律師亦一直將所有文件送達同一地址，亦有誓章支持有關文件之送達。 上訴的勝算 上訴人在DCCJ 3283/2014案中因未能履行擔保人責任向答辯人還款，法庭因此而作出判決及就上訴人的物業作出修訂的絕對押記令。 +收樓令是根據DCCJ 3283/2014的判決及修訂絕對押記令而作出，有關判決沒被上訴推翻或剔除，上訴人直至今天還沒有還款。 因上訴人未有就DCCJ 3283/2014的判定債項還款，杜聆案官在2015年12月29日作出命令收樓及售樓。 上訴人一直知悉有關DCCJ 3283/2014的判決並明白要作出還款，但從沒還款。 上訴人提及物業需要補地價的事宜，並非推翻杜聆案官命令的理由，因為杜聆案官的命令已包括了原告人售樓時向政府作出補地價的細則。 本席認為上訴人沒有實則的理據去支持成功覆核杜聆案官的命令。上訴人於聆訊期間提出她從來無簽過擔保書所以DCCJ 3283/2014案件不應敗訴。她亦聲稱答辯人於DCCJ 3283/2014案件中誇大欠款額。但是，上訴人從來沒有就DCCJ 3283/2014案件提出上訴。法庭沒有基礎於今天的聆訊中就上訴人之聲稱而裁定其上訴是有理據支持。 因此本席不會延展被告人之上訴時限，亦駁回上訴人的上訴申請。上訴人須支付原告人訟費。若雙方未能協議，訟費則由法庭 +評定。此訟費命令乃暫准性質；任何一方未有在由今天起計14天內提出申請更改，訟費自動作實。 （ 萬可宜 ） 區域法院暫委法官 原告人：由劉林陳律師行的Law Wing Chi律師代表 原告人：沒有律師代表，並親自應訊 + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/zh_cases_hkdc/2016_HKDC_459/case.json b/zh_cases_hkdc/2016_HKDC_459/case.json new file mode 100644 index 0000000..6bd486f --- /dev/null +++ b/zh_cases_hkdc/2016_HKDC_459/case.json @@ -0,0 +1,26 @@ +{ + "Date": "28 Apr, 2016", + "Action No.": "DCMP2569/2015", + "Neutral Cit.": "[2016] HKDC 459", + "case_title": "PRIMECREDIT LTD 對 WONG MEI YAN PATRICIA", + "page_title": "PRIMECREDIT LTD 對 WONG MEI YAN PATRICIA | [2016] HKDC 459 | HKLII", + "case_history": [ + { + "name": "DCMP2569/2015", + "link": "https://www.hklii.hk/tc/appealhistory/DCMP/2015/2569" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkdc/2016/459", + "neutral_cit": "[2016] HKDC 459", + "court_code": "HKDC", + "content": "DCMP2569/2015 PRIMECREDIT LTD 對 WONG MEI YAN PATRICIA\nDCMP 2569/2015\n香港特別行政區\n區域法院\n雜項案件2015年第2569號\n---------------------\n原告人\nPRIMECREDIT LIMITED\n訴\n被告人\nWONG MEI YAN PATRICIA\n---------------------\n主審法官： 區域法院暫委法官萬可宜內庭聆訊\n聆訊日期： 2016年4月25日\n判決理由書日期： 2016年4月28日\n--------------------\n判決理由書\n--------------------\n1.\n這是上訴人黃薇欣就聆案官杜潔玲於2015年12月29日作出的命令而提出之上訴。\n2.\n該命令為法庭因上訴人未有就DCCJ 3283/2014的判決還款，而批予上訴人的物業的押記令作出之收樓及售樓令。\n3.\n首先，上訴人之申請已逾時三個多月。上訴人曾於2016年3月29日申請暫緩執行杜聆案官之命令，但並沒有同時申請向該命令上訴。\n4.\n法庭在考慮應否延展上訴時限時，法庭需考慮：－\n(1) 延誤時間的長度：上述申請已逾時三個多月。\n(2) 延誤的原因：上訴人聲稱她沒有收過有關文件。法庭認為這並不可信；上訴人有親身出席2015年12月29日杜聆案官之聆訊，對方律師亦一直將所有文件送達同一地址，亦有誓章支持有關文件之送達。\n(3) 上訴的勝算\n(a) 上訴人在DCCJ 3283/2014案中因未能履行擔保人責任向答辯人還款，法庭因此而作出判決及就上訴人的物業作出修訂的絕對押記令。\n(b) 收樓令是根據DCCJ 3283/2014的判決及修訂絕對押記令而作出，有關判決沒被上訴推翻或剔除，上訴人直至今天還沒有還款。\n(c) 因上訴人未有就DCCJ 3283/2014的判定債項還款，杜聆案官在2015年12月29日作出命令收樓及售樓。\n(d) 上訴人一直知悉有關DCCJ 3283/2014的判決並明白要作出還款，但從沒還款。\n(e) 上訴人提及物業需要補地價的事宜，並非推翻杜聆案官命令的理由，因為杜聆案官的命令已包括了原告人售樓時向政府作出補地價的細則。\n5.\n本席認為上訴人沒有實則的理據去支持成功覆核杜聆案官的命令。上訴人於聆訊期間提出她從來無簽過擔保書所以DCCJ 3283/2014案件不應敗訴。她亦聲稱答辯人於DCCJ 3283/2014案件中誇大欠款額。但是，上訴人從來沒有就DCCJ 3283/2014案件提出上訴。法庭沒有基礎於今天的聆訊中就上訴人之聲稱而裁定其上訴是有理據支持。\n6.\n因此本席不會延展被告人之上訴時限，亦駁回上訴人的上訴申請。上訴人須支付原告人訟費。若雙方未能協議，訟費則由法庭評定。此訟費命令乃暫准性質；任何一方未有在由今天起計14天內提出申請更改，訟費自動作實。\n（ 萬可宜 ）\n區域法院暫委法官\n原告人：由劉林陳律師行的Law Wing Chi律師代表\n原告人：沒有律師代表，並親自應訊", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2015/DCMP002569_2015.doc", + "file_name": "DCMP002569_2015.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkdc/2022_HKDC_1263/DCCC001130_2021_abp_fallback.txt b/zh_cases_hkdc/2022_HKDC_1263/DCCC001130_2021_abp_fallback.txt new file mode 100644 index 0000000..df39843 --- /dev/null +++ b/zh_cases_hkdc/2022_HKDC_1263/DCCC001130_2021_abp_fallback.txt @@ -0,0 +1,12 @@ +DCCC 1130/2021 [2022] HKDC 1263 香港特別行政區 區域法院 刑事案件2021年第1130號 --------------------------------- 香港特別行政區 訴 李少培 --------------------------------- 主審法官： 區域法院法官李慶年 聆訊日期： 2022年11月3日 出席人士： 謝家樹先生，為外聘大律師，代表香港特別行政區 傅昶生先生，由法律援助署委派的王婉芝律師行延聘，代表被告人 控罪： [1] 管理煙窟（Managing a divan） [2] 販運危險藥物（Trafficking in dangerous drugs） [3]管有適合於及擬用作吸服危險藥物的器具（Possession of apparatuses fit and intended for the inhalation of a dangerous drug） -------------------- 判刑理由書 --------------------- +控罪 被告人於認罪及同意相關案情下，被裁定3項控罪罪名成立。 同意䅁情 2021年7月22日下午12時40分，警員18615（“PW1”）、警長6685（“PW8”）、警員15565（“PW2”）和一支警員隊伍，抵達位於香港九龍旺角新填地街427A的大廈（“該大廈”）。3名警員躲在該大廈2樓的樓梯口。 同日約下午1時17分，有人從該大廈1樓的單位（“該單位”）裡打開正門。該單位被稱為“月光酒店”。3名警員立即衝到門前。PW1宣布他們的警員身分。他們看到被告和一名名叫羅玉珍（“羅”）的女子在該單位內。羅試圖關門。PW1再次表明警員身分，並最終推開了門。3名警員及警隊成員進入該單位。PW8執行了對該單位的搜查令。 被告告訴PW1，他是該場所的負責人。PW1逮捕了被告，並以“管理煙窟”的罪名警誡他。在警誡下，他承認他負責為「顧客」開門，並向「客人」出售「白粉」和「冰毒」。 該單位約800平方英尺，有6個房間，還有一個儲物室。單位內共有14名男性和女性（包括被告和羅某）。 + PW1在被告身上發現一條單位鑰匙（“Exh 1”）和一部手機（“Exh 2”）。 警方在該單位內發現並檢獲了各種證物，分別是： 在6號房的洗浴區，有一個塑料容器（“Exh 3”），内有下列物品： 5個塑膠袋，共載有內含1.64克甲基苯丙胺鹽酸鹽的1.68克晶狀固體（“Exh 4”）； 9個塑料袋，共載有內含0.70克甲基苯丙胺鹽酸鹽的0.72克晶狀固體（“Exh 5”）； 10個鋁箔包，共10片，內含0.12克咪達唑侖的片劑（“Exh 6”）； 6包（由塑膠包裝組成），共載有內含1.82克的海洛英鹽酸鹽（海洛英的一種鹽）的1.85克的混合劑（“Exh 7”）； 5包（由塑膠包裝組成），共載有內含0.75克的海洛英鹽酸鹽（海洛英的一種鹽）的0.96克的混合劑（“Exh 8”）； 3包（由塑膠包裝組成），共載有內含0.67 +克的海洛英鹽酸鹽（海洛英的一種鹽）的0.83克的混合劑（“Exh 9”）；及 3包（由塑膠包裝組成），共載有內含0.38克的海洛英鹽酸鹽（海洛英的一種鹽）的0.46克的混合劑（“Exh 10”）。 在6號房的牆上，一份價格表（“Exh 11”）。 在6號房的一張桌子上： 一個紙盒，內有一些塑膠吸管（“Exh 12”）; 一個紙盒，內有一些錫箔片（“Exh 13”）； 5支未使用的注射器（“Exh 14”）； 一個計算器（“Exh 15”）； 兩個電子秤（“Exh 16”）； 399個可重複密封的空塑膠袋（“Exh 17”）； 一個塑膠容器，內有現金604港元（“Exh 18”）； + 一個可重複密封的塑膠袋，內有一些塑膠片（“Exh 19”）； 一本筆記本（“Exh 20”）；及 一個由玻璃瓶（內有1根塑膠吸管）構成的吸入裝置，其中插入1根塑膠管和1根一端為球狀的玻璃管，內有114毫升液體，亁燥後含有0.07克的固體，含有甲基苯丙胺（“Exh 21”）。 在7號房的一張桌子上： 一個由玻璃瓶（內有1根塑膠吸管）構成的吸入裝置，其中插入1根塑膠管和1根一端為球狀的玻璃管，內有14毫升液體，乾燥後含有0.02克的固體，含有甲基苯丙胺（“Exh 22”）； 一個由玻璃瓶（內有1根塑膠吸管）構成的吸入裝置，其中插入1根塑膠管和1根一端為球狀的玻璃管，內有59毫升液體，亁燥後含有0.02克的固體，含有甲基苯丙胺（“Exh 23”）； + 一個由玻璃瓶（內有1根塑膠吸管）構成的吸入裝置，其中插入1根塑膠管和1根一端為球狀的玻璃管，內有73毫升液體，乾燥後含有0.03克的固體，含有甲基苯丙胺（“Exh 24”）；及 3個打火機（統稱為“Exh 25”）。 在8號房間的一張桌子上： 一個由玻璃瓶（內有1根塑膠吸管）構成的吸入裝置，其中插入1根塑膠管和1根一端為球狀的玻璃管，內有80毫升液體，乾燥後含有0.08克的固體，含有甲基苯丙胺（“Exh 26”）； 一張燒焦的錫紙（“Exh 27”）；及 一個打火機（“Exh 28”）。 高級警員31914對檢獲的證物和單位拍了87張照片。 PW1後來在警誡下詢問被告。問話過程被錄下。除其他事項外，被告告訴警員的有： +他負責打開單位的門，並向顧客“出售”危險毒品。他向客人出售“白粉”、咪達唑侖和“冰毒”； 他每天從上午11時到晚上11時工作，每天賺取600港元的工資。他每天的收入直接來自“生意收入”； 一名身分不詳的男子（被告與他沒有任何聯系）會將毒品送到該單位出售； 在該單位內檢獲的毒品是“白粉”和“冰毒”，正準備出售給客人； 塑膠容器（Exh 3）是用來存放這些危險藥物的。注射器、錫箔紙和塑料吸管（Exh 12至14）是為客人使用毒品而準備的； 計算器（Exh 15）用於毒品交易，天秤（Exh 16）用於稱量毒品；及 警方檢獲貼在牆上的價格表（Exh 11）。 鹽酸甲基苯丙胺（甲基苯丙胺的一種鹽）、咪達唑侖、鹽酸海洛英（海洛英的一種鹽）和甲基苯丙胺均受《危險藥物條例》附表一第一部分的管制。 +檢獲的咪達唑侖、檢獲的海洛英和檢獲的冰毒的街頭價值分別為約500港元、約7,522港元，及約1,589港元。總金額為約9,611港元。 2021年7月22日，在該單位，被告人管理煙窟，即在該煙窟中出售危險藥物（即海洛英鹽酸鹽、甲基苯丙胺鹽酸鹽及咪達唑侖）以供人在其內吸食、吸服、服食或注射。 同日同地，被告人非法販運危險藥物，即內含2.34克甲基苯丙胺鹽酸鹽的2.4克晶狀固體，內含3.62克海洛英鹽酸鹽的5.1克混合劑及10粒片劑，內含0.12克咪達唑侖。 同日同地，被告人管有器具，即5套吸服裝置，而該等器具是適合於及擬用作吸服危險藥物（即甲基苯丙胺）的。 被告人的背景和刑事紀錄、減刑陳詞 被告人現年59歲，接受教育程度至小學6年級，離婚人士。被告人自1980年至2020年有28項刑事定罪紀錄，當中有17項紀錄和毒品相關， 1999年曾因販運毒品罪被判監12個月。代表被告的傅大律師擬備了一份簡潔的減刑陳詞。他的陳詞重點有3項：第一，被告在被捕後表現合作，並且及早認罪。第二，被告管理毒窟為了賺取收入，以支持其吸食毒品的壞習慣。第三，希望法庭考慮總刑期，避免刑期過長。 +量刑 就第一項控罪而言，本席參考了上訴庭案例Lam Lai Chu Patsy CACC56/2003。經考慮本案犯案情節，包括警方進入單位後，發現單位有800平方英尺，有6個房間及14名男女和一些吸食毒品工具，即該處所可供14人吸食毒品。單位內亦發現控罪二的毒品包括冰毒、海洛英及咪達唑侖。本席以15個月監禁為第一項控罪的量刑基準。可惜，被告有多項毒品定罪的紀錄，本席按案例把第一項控罪的量刑基準上調至18個月監禁，扣減認罪的三分一，第一項控罪的刑期為12個月監禁。 就第二項控罪而言，控罪涉及3種毒品，即冰毒、海洛英及咪達唑侖，重量分別為2.34克（純度）、 3.62克（純度）及0.12克（純度）。本案的咪達唑侖涉及份量較少，毒性也較低，本席根據案例對這些微不足道而毒性較低的毒品不予考慮，把焦點落在毒性較高的毒品，即冰毒及海洛英。根據案例， 3.62克的海洛英的刑期約為34個月監禁，接近1克冰毒的刑期。而2.34克的冰毒的刑期約為43個月監禁。換言之，本席衡量的刑期不應多於相等於3.34克的冰毒的刑期（即假設3.28克的海洛英接近1克冰毒，再加原有2.34克的冰毒），而3.34克的冰毒可引致約48個月的刑期，以綜合方法來處理同一案件不同毒品的量刑較為合理和相稱：HKSAR v Cheung Wai Man [2019] 1 HKLRD 817。亦根據有關案例Islam SM Majharul [2020] 3 HKLRD 146，本案涉及多於一種毒品，過去的刑罰對被告的阻嚇力不大，本席把原本的量刑基準48個月的刑期上調至51個月，扣減認罪的三分一，第二項控罪的刑期為34個月監 +禁。 就第三項控罪而言，管有適合於及擬用作吸服危險藥物的器具，一般刑期由罰款至短期監禁。本席把第三項控罪的量刑基準定在6個月，扣減認罪的三分一，第三項控罪的刑期為4個月監禁。 根據上訴庭在HKSAR v Cheung Yiu Fai Alex CACC 173/2005案所說的原則，販運危險藥物和管理煙窟的判刑可以完全分期執行。畢竟法庭要考慮整體刑期的問題，經考慮總刑期的原則，避免總刑期過長，此外，3項控罪案情重疊，本席把3項控罪的刑期頒令同期執行。換言之，總刑期為34個月監禁。 （ 李慶年 ） 區域法院法官 + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/zh_cases_hkdc/2022_HKDC_1263/case.json b/zh_cases_hkdc/2022_HKDC_1263/case.json new file mode 100644 index 0000000..ac8cb43 --- /dev/null +++ b/zh_cases_hkdc/2022_HKDC_1263/case.json @@ -0,0 +1,26 @@ +{ + "Date": "3 Nov, 2022", + "Action No.": "DCCC1130/2021", + "Neutral Cit.": "[2022] HKDC 1263", + "case_title": "香港特別行政區 訴 李少培", + "page_title": "香港特別行政區 訴 李少培 | [2022] HKDC 1263 | HKLII", + "case_history": [ + { + "name": "DCCC1130/2021", + "link": "https://www.hklii.hk/tc/appealhistory/DCCC/2021/1130" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkdc/2022/1263", + "neutral_cit": "[2022] HKDC 1263", + "court_code": "HKDC", + "content": "DCCC1130/2021 香港特別行政區 訴 李少培\nDCCC 1130/2021\n[2022] HKDC 1263\n香港特別行政區\n區域法院\n刑事案件2021年第1130號\n________________________\n香港特別行政區\n訴\n李少培\n________________________\n主審法官:\n區域法院法官李慶年\n聆訊日期:\n2022年11月3日\n出席人士:\n謝家樹先生，為外聘大律師，代表香港特別行政區\n傅昶生先生，由法律援助署委派的王婉芝律師行延聘，代表被告人\n控罪:\n[1] 管理煙窟（Managing a divan）\n[2] 販運危險藥物（Trafficking in dangerous drugs）\n[3] 管有適合於及擬用作吸服危險藥物的器具（Possession of apparatuses fit and intended for the inhalation of a dangerous drug）\n________________________\n判刑理由書\n________________________\n控罪\n1.\n被告人於認罪及同意相關案情下，被裁定3項控罪罪名成立。\n同意䅁情\n2.\n2021年7月22日下午12時40分，警員18615（“PW1”）、警長6685（“PW8”）、警員15565（“PW2”）和一支警員隊伍，抵達位於香港九龍旺角新填地街427A的大廈（“該大廈”）。3名警員躲在該大廈2樓的樓梯口。\n3.\n同日約下午1時17分，有人從該大廈1樓的單位（“該單位”）裡打開正門。該單位被稱為“月光酒店”。3名警員立即衝到門前。PW1宣布他們的警員身分。他們看到被告和一名名叫羅玉珍（“羅”）的女子在該單位內。羅試圖關門。PW1再次表明警員身分，並最終推開了門。3名警員及警隊成員進入該單位。PW8執行了對該單位的搜查令。\n4.\n被告告訴PW1，他是該場所的負責人。PW1逮捕了被告，並以“管理煙窟”的罪名警誡他。在警誡下，他承認他負責為「顧客」開門，並向「客人」出售「白粉」和「冰毒」。\n5.\n該單位約800平方英尺，有6個房間，還有一個儲物室。單位內共有14名男性和女性（包括被告和羅某）。\n6.\nPW1在被告身上發現一條單位鑰匙（“Exh 1”）和一部手機（“Exh 2”）。\n7.\n警方在該單位內發現並檢獲了各種證物，分別是：\n(a) 在6號房的洗浴區，有一個塑料容器（“Exh 3”），内有下列物品：\n(1) 5個塑膠袋，共載有內含1.64克甲基苯丙胺鹽酸鹽的1.68克晶狀固體（“Exh 4”）；\n(2) 9個塑料袋，共載有內含0.70克甲基苯丙胺鹽酸鹽的0.72克晶狀固體（“Exh 5”）；\n(3) 10個鋁箔包，共10片，內含0.12克咪達唑侖的片劑（“Exh 6”）；\n(4) 6包（由塑膠包裝組成），共載有內含1.82克的海洛英鹽酸鹽（海洛英的一種鹽）的1.85克的混合劑（“Exh 7”）；\n(5) 5包（由塑膠包裝組成），共載有內含0.75克的海洛英鹽酸鹽（海洛英的一種鹽）的0.96克的混合劑（“Exh 8”）；\n(6) 3包（由塑膠包裝組成），共載有內含0.67克的海洛英鹽酸鹽（海洛英的一種鹽）的0.83克的混合劑（“Exh 9”）；及\n(7) 3包（由塑膠包裝組成），共載有內含0.38克的海洛英鹽酸鹽（海洛英的一種鹽）的0.46克的混合劑（“Exh 10”）。\n(b) 在6號房的牆上，一份價格表（“Exh 11”）。\n(c) 在6號房的一張桌子上：\n(1) 一個紙盒，內有一些塑膠吸管（“Exh 12”）;\n(2) 一個紙盒，內有一些錫箔片（“Exh 13”）；\n(3) 5支未使用的注射器（“Exh 14”）；\n(4) 一個計算器（“Exh 15”）；\n(5) 兩個電子秤（“Exh 16”）；\n(6) 399個可重複密封的空塑膠袋（“Exh 17”）；\n(7) 一個塑膠容器，內有現金604港元（“Exh 18”）；\n(8) 一個可重複密封的塑膠袋，內有一些塑膠片（“Exh 19”）；\n(9) 一本筆記本（“Exh 20”）；及\n(10) 一個由玻璃瓶（內有1根塑膠吸管）構成的吸入裝置，其中插入1根塑膠管和1根一端為球狀的玻璃管，內有114毫升液體，亁燥後含有0.07克的固體，含有甲基苯丙胺（“Exh 21”）。\n(d) 在7號房的一張桌子上：\n(1) 一個由玻璃瓶（內有1根塑膠吸管）構成的吸入裝置，其中插入1根塑膠管和1根一端為球狀的玻璃管，內有14毫升液體，乾燥後含有0.02克的固體，含有甲基苯丙胺（“Exh 22”）；\n(2) 一個由玻璃瓶（內有1根塑膠吸管）構成的吸入裝置，其中插入1根塑膠管和1根一端為球狀的玻璃管，內有59毫升液體，亁燥後含有0.02克的固體，含有甲基苯丙胺（“Exh 23”）；\n(3) 一個由玻璃瓶（內有1根塑膠吸管）構成的吸入裝置，其中插入1根塑膠管和1根一端為球狀的玻璃管，內有73毫升液體，乾燥後含有0.03克的固體，含有甲基苯丙胺（“Exh 24”）；及\n(4) 3個打火機（統稱為“Exh 25”）。\n(e) 在8號房間的一張桌子上：\n(1) 一個由玻璃瓶（內有1根塑膠吸管）構成的吸入裝置，其中插入1根塑膠管和1根一端為球狀的玻璃管，內有80毫升液體，乾燥後含有0.08克的固體，含有甲基苯丙胺（“Exh 26”）；\n(2) 一張燒焦的錫紙（“Exh 27”）；及\n(3) 一個打火機（“Exh 28”）。\n8.\n高級警員31914對檢獲的證物和單位拍了87張照片。\n9.\nPW1後來在警誡下詢問被告。問話過程被錄下。除其他事項外，被告告訴警員的有：\n(1) 他負責打開單位的門，並向顧客“出售”危險毒品。他向客人出售“白粉”、咪達唑侖和“冰毒”；\n(2) 他每天從上午11時到晚上11時工作，每天賺取600港元的工資。他每天的收入直接來自“生意收入”；\n(3) 一名身分不詳的男子（被告與他沒有任何聯系）會將毒品送到該單位出售；\n(4) 在該單位內檢獲的毒品是“白粉”和“冰毒”，正準備出售給客人；\n(5) 塑膠容器（Exh 3）是用來存放這些危險藥物的。注射器、錫箔紙和塑料吸管（Exh 12至14）是為客人使用毒品而準備的；\n(6) 計算器（Exh 15）用於毒品交易，天秤（Exh 16）用於稱量毒品；及\n(7) 警方檢獲貼在牆上的價格表（Exh 11）。\n10.\n鹽酸甲基苯丙胺（甲基苯丙胺的一種鹽）、咪達唑侖、鹽酸海洛英（海洛英的一種鹽）和甲基苯丙胺均受\n《危險藥物條例》\n附表一第一部分的管制。\n11.\n檢獲的咪達唑侖、檢獲的海洛英和檢獲的冰毒的街頭價值分別為約500港元、約7,522港元，及約1,589港元。總金額為約9,611港元。\n12.\n2021年7月22日，在該單位，被告人管理煙窟，即在該煙窟中出售危險藥物（即海洛英鹽酸鹽、甲基苯丙胺鹽酸鹽及咪達唑侖）以供人在其內吸食、吸服、服食或注射。\n13.\n同日同地，被告人非法販運危險藥物，即內含2.34克甲基苯丙胺鹽酸鹽的2.4克晶狀固體，內含3.62克海洛英鹽酸鹽的5.1克混合劑及10粒片劑，內含0.12克咪達唑侖。\n14.\n同日同地，被告人管有器具，即5套吸服裝置，而該等器具是適合於及擬用作吸服危險藥物（即甲基苯丙胺）的。\n被告人的背景和刑事紀錄、減刑陳詞\n15.\n被告人現年59歲，接受教育程度至小學6年級，離婚人士。被告人自1980年至2020年有28項刑事定罪紀錄，當中有17項紀錄和毒品相關， 1999年曾因販運毒品罪被判監12個月。代表被告的傅大律師擬備了一份簡潔的減刑陳詞。他的陳詞重點有3項：第一，被告在被捕後表現合作，並且及早認罪。第二，被告管理毒窟為了賺取收入，以支持其吸食毒品的壞習慣。第三，希望法庭考慮總刑期，避免刑期過長。\n量刑\n16.\n就第一項控罪而言，本席參考了上訴庭案例\nLam Lai Chu Patsy\nCACC56/2003。經考慮本案犯案情節，包括警方進入單位後，發現單位有800平方英尺，有6個房間及14名男女和一些吸食毒品工具，即該處所可供14人吸食毒品。單位內亦發現控罪二的毒品包括冰毒、海洛英及咪達唑侖。本席以15個月監禁為第一項控罪的量刑基準。可惜，被告有多項毒品定罪的紀錄，本席按案例把第一項控罪的量刑基準上調至18個月監禁，扣減認罪的三分一，第一項控罪的刑期為12個月監禁。\n17.\n就第二項控罪而言，控罪涉及3種毒品，即冰毒、海洛英及咪達唑侖，重量分別為2.34克（純度）、 3.62克（純度）及0.12克（純度）。本案的咪達唑侖涉及份量較少，毒性也較低，本席根據案例對這些微不足道而毒性較低的毒品不予考慮，把焦點落在毒性較高的毒品，即冰毒及海洛英。根據案例， 3.62克的海洛英的刑期約為34個月監禁，接近1克冰毒的刑期。而2.34克的冰毒的刑期約為43個月監禁。換言之，本席衡量的刑期不應多於相等於3.34克的冰毒的刑期（即假設3.28克的海洛英接近1克冰毒，再加原有2.34克的冰毒），而3.34克的冰毒可引致約48個月的刑期，以綜合方法來處理同一案件不同毒品的量刑較為合理和相稱：\nHKSAR v Cheung Wai Man\n[2019] 1 HKLRD 817\n。亦根據有關案例\nIslam SM Majharul\n[2020] 3 HKLRD 146\n，本案涉及多於一種毒品，過去的刑罰對被告的阻嚇力不大，本席把原本的量刑基準48個月的刑期上調至51個月，扣減認罪的三分一，第二項控罪的刑期為34個月監禁。\n18.\n就第三項控罪而言，管有適合於及擬用作吸服危險藥物的器具，一般刑期由罰款至短期監禁。本席把第三項控罪的量刑基準定在6個月，扣減認罪的三分一，第三項控罪的刑期為4個月監禁。\n19.\n根據上訴庭在\nHKSAR v Cheung Yiu Fai Alex\nCACC 173/2005案所說的原則，販運危險藥物和管理煙窟的判刑可以完全分期執行。畢竟法庭要考慮整體刑期的問題，經考慮總刑期的原則，避免總刑期過長，此外，3項控罪案情重疊，本席把3項控罪的刑期頒令同期執行。換言之，總刑期為34個月監禁。\n（ 李慶年 ）\n區域法院法官", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2021/DCCC001130_2021.doc", + "file_name": "DCCC001130_2021.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hklat/2012_HKLaT_1/LBTC000595A_2012_abp_fallback.txt b/zh_cases_hklat/2012_HKLaT_1/LBTC000595A_2012_abp_fallback.txt new file mode 100644 index 0000000..eaaad8f --- /dev/null +++ b/zh_cases_hklat/2012_HKLaT_1/LBTC000595A_2012_abp_fallback.txt @@ -0,0 +1,5 @@ +LBTC 595/2012 香港特別行政區 勞資審裁處 申索書編號 2012 年第595 號  第三申索人 第四申索人 第七申索人 第九申索人 第十一申索人 鄭國華 黎亞來 廖發開 何清海 徐志中   與  被告公司 利興清潔服務有限公司   主審審裁官 ：林美施審裁官 聆訊日期 ：2012年3月21-23、26-27日， 5月25、28日及 6月14日 裁決日期 ：2012年7月13日 覆核聆訊日期 ：2012年8月6日 覆核裁決理由書日期 ：2012年9月20日 覆核裁決理由書 本案經審訊後，本席於2012年7月13日作出以下裁決：- + (1) 五位申索人(A)項：遣散費申索得直，被告公司須即時支付；第三申索人港幣13,412.05元；第四申索人港幣3,003.42元；第七申索人港幣21,848元；第九申索人港幣13,827.86元；第十一申索人港幣13,826.82元。 (2) 五位申索人第二項有關終止僱傭金的追討被撤銷； (3) 被告公司即時支付訟費予五位申索人：-第三申索人港幣197元；第四申索人港幣1,020元；第七申索人港幣180元；第九申索人港幣290元；第十一申索人港幣199元； (4) 上述判決款額的利息根據《勞資審裁處條例》第25章第39 (3) 條計算。由被告公司支付。 2. 被告公司不服上述裁決，作出覆核申請，而覆核申請的聆訊於2012年8月6日進行。 3. 本席在仔細考慮了被告公司的所有申請理據後，認為該等理據早已在審訊時提出，並由本席遂一加以考慮，最终不獲接纳, 故此, 被告公司並無任何新增的理據以支持其覆核的申請。 4. 因此，本席不批准被告公司的覆核申請。 5. 另外, 對於被告公司要求暫緩發放其於2012年7月26日繳付之裁決款項港幣67,996.81元予五位申索人的申請，本席 +在審慎地考慮了被告公司自始至終都只是重覆着它在審訊過程中已提出, 並獲充分考慮, 但不被接纳的抗辯理據, 上訴成功的機會不高, 也考慮了五名申索人已屆高齡, 上訴程序在時間上對他們的影響, 在衡量了暫緩發放裁決款項對被告公司及五位申索人的影響，以及所有相關因素，本席認為被告公司並無充份理據支持其申請，故不予批准。 6. 至於訟費方面，由於雙方皆不作申請，故此不作訟費命令。 （ 林美施 ） 勞資審裁處審裁官 + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/zh_cases_hklat/2012_HKLaT_1/case.json b/zh_cases_hklat/2012_HKLaT_1/case.json new file mode 100644 index 0000000..0c718da --- /dev/null +++ b/zh_cases_hklat/2012_HKLaT_1/case.json @@ -0,0 +1,26 @@ +{ + "Date": "20 Sep, 2012", + "Action No.": "LBTC595/2012", + "Neutral Cit.": "[2012] HKLaT 1", + "case_title": "鄭國華及另四人 對 利興清潔服務有限公司", + "page_title": "鄭國華及另四人 對 利興清潔服務有限公司 | [2012] HKLaT 1 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "LBTC595/2012", + "link": "https://www.hklii.hk/tc/appealhistory/LBTC/2012/595" + } + ], + "case_url": "https://www.hklii.hk/tc/cases/hklat/2012/1", + "neutral_cit": "[2012] HKLaT 1", + "court_code": "HKLAT", + "content": "LBTC595A/2012 鄭國華及另四人 對 利興清潔服務有限公司\nLBTC 595/2012\n香港特別行政區\n勞資審裁處\n申索書編號 2012 年第595 號\n________________________\n第三申索人\n鄭國華\n第四申索人\n黎亞來\n第七申索人\n廖發開\n第九申索人\n何清海\n第十一申索人\n徐志中\n與\n被告公司\n利興清潔服務有限公司\n________________________\n主審審裁官 ： 林美施審裁官\n聆訊日期 ： 2012年3月21-23、26-27日，5月25、28日及 6月14日\n裁決日期 ： 2012年7月13日\n覆核聆訊日期 ： 2012年8月6日\n覆核裁決理由書日期 ： 2012年9月20日\n________________________\n覆核裁決理由書\n________________________\n1.\n本案經審訊後，本席於2012年7月13日作出以下裁決：-\n(1) 五位申索人(A)項：遣散費申索得直，被告公司須即時支付；第三申索人港幣13,412.05元；第四申索人港幣3,003.42元；第七申索人港幣21,848元；第九申索人港幣13,827.86元；第十一申索人港幣13,826.82元。\n(2) 五位申索人第二項有關終止僱傭金的追討被撤銷；\n(3) 被告公司即時支付訟費予五位申索人：-第三申索人港幣197元；第四申索人港幣1,020元；第七申索人港幣180元；第九申索人港幣290元；第十一申索人港幣199元；\n(4) 上述判決款額的利息根據\n《勞資審裁處條例》\n第25章\n第39 (3) 條計算。由被告公司支付。\n2.\n被告公司不服上述裁決，作出覆核申請，而覆核申請的聆訊於2012年8月6日進行。\n3.\n本席在仔細考慮了被告公司的所有申請理據後，認為該等理據早已在審訊時提出，並由本席遂一加以考慮，最终不獲接纳, 故此, 被告公司並無任何新增的理據以支持其覆核的申請。\n4.\n因此，本席不批准被告公司的覆核申請。\n5.\n另外, 對於被告公司要求暫緩發放其於2012年7月26日繳付之裁決款項港幣67,996.81元予五位申索人的申請，本席在審慎地考慮了被告公司自始至終都只是重覆着它在審訊過程中已提出, 並獲充分考慮, 但不被接纳的抗辯理據, 上訴成功的機會不高, 也考慮了五名申索人已屆高齡, 上訴程序在時間上對他們的影響, 在衡量了暫緩發放裁決款項對被告公司及五位申索人的影響，以及所有相關因素，本席認為被告公司並無充份理據支持其申請，故不予批准。\n6.\n至於訟費方面，由於雙方皆不作申請，故此不作訟費命令。\n（ 林美施 ）\n勞資審裁處審裁官", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2012/LBTC000595A_2012.doc", + "file_name": "LBTC000595A_2012.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hklat/2012_HKLaT_2/LBTC000595_2012_abp_fallback.txt b/zh_cases_hklat/2012_HKLaT_2/LBTC000595_2012_abp_fallback.txt new file mode 100644 index 0000000..fef0d8e --- /dev/null +++ b/zh_cases_hklat/2012_HKLaT_2/LBTC000595_2012_abp_fallback.txt @@ -0,0 +1,25 @@ +LBTC 595/2012 香港特別行政區 勞資審裁處 申索書編號 2012 年第595 號  第三申索人 第四申索人 第七申索人 第九申索人 第十一申索人 鄭國華 黎亞來 廖發開 何清海 徐志中   與  被告公司 利興清潔服務有限公司   主審審裁官：林美施審裁官 聆訊日期：2012年3月21-23、26-27日，5月25-28日及 6月14日 裁決日期：2012年7月13日 裁決理由書日期：2012年9月20日 裁決理由書 背景 在本案中，五名申索人，分別是第三、第四、第七、第九及第十一申索人向被告公司追討遣散費及交替申索終止僱傭金。被告公司並不爭議他們追討的金額計算，但認為並無責任支付。 +背景事實 對於本案的背景事實，雙方並無重大爭議。 被告公司是一間提供多類型清潔服務的公司，它的服務對象包括政府及各類型的公私型機構。它經投標程序，成功與食物環境衛生署(以下簡稱「食環署」) 簽訂維期兩年的「灣仔街道潔淨服務合約」，在2008年1月1日至2009年12月31日，向食環署提供灣仔街道的清潔服務。其後再經投標程序，與食環署簽訂另一份維期兩年的「灣仔街道潔淨服務合約」，也即是政府服務合約編號：FEHDSC/63/09 (以下簡稱「食環署合約」)，繼續在2010年1月1日提供灣仔街道的清潔服務至2011年12月31日。只是，在2011年12月7日，被告公司獲食環署書面通知，它在新一輪投標程序中並未獲揀選為2012年1月1日起维期兩年的合约的承判商，故此，雙方將在食環署合約於2011年12月31日屆滿後，不會簽訂新合約。 其時，因此而受影響的員工合共375名，其中371名為月薪制員工，與被告公司簽訂了政府強制性規定承辦商在聘用非技術工人為政府服務合約提供服務時必須簽訂的規格化標準合約，合約名為「適用於政府服務合約承辦商與其僱員的標準僱傭合約」(以下簡稱「政府標準合約」)，另外四名員工則為工作少於七天的臨時日薪員工，因此毋須簽訂政府標準合約。 被告公司陸續派員在12月中下旬，到各清潔站頭通知清潔工人食環署合約將於12月31日終結，對於未做滿兩年的清潔工人，給予七日的書面通知，終止雙方的僱傭合約；而另一 +方面，對於工作屆滿或超越兩年的工人，合共163人，則查問他們是否接受被告公司在2012年1月1日調派他們往其他地點工作。當中有部份員工簽署了由被告公司編製規定格式的「地盤約滿安排員工回條」(以下簡稱「約滿回條」)。 及至12月23日，被告公司獲勞工處通知，有員工向它及「清潔工人職工會」投訴被告公司誤導工人簽署約滿回條以逃避支付遣散費的責任，故邀請其與員工開會，會議訂於12月28日舉行。 在12月28日會議中，出席者包括兩位勞工處職員、「清潔工人職工會」幹事胡美蓮(以下簡稱「工會代表」)及被告公司執行董事胡瀞心(以下簡稱「公司代表」)。部分的清潔工人由工會聯絡, 部分工人則由其他工人通知出席。 當日會議並無會議議程,出席的清潔工人並無出席時間、人數的安排，工人是不定時、無編制，以流水式自由進出會議。在會上，被告公司角色被動，無大綱議題, 只是回答個別員工的提問。由於場面非常混亂，工會代表主動要求被告公司以書面說明它的調派安排，列明每位員工的新工作地點及時間，並相約在翌日開會時逐一派發予員工。 在12月29日的會議上，出席者同樣包括兩位勞工處職員、工會代表及公司代表。被告公司準備了162份(當中遺漏一人)名為「有關工作地點調配通知」的文件(以下簡稱「調配通知」)，每份調配通知列明了每位員工將被調派往的新工作的地點及時間。其時，勞工處及工會代表要求公司代表親自將每張 +調配通知即場派予出席的員工。對於沒有出席的26位員工的調配通知，則由被告公司自己收回，勞工處及工會代表皆拒絕代領。 部份有出席的員工(包括本案的五名申索人)即場在各自獲發的調配通知上寫上拒絕調配的理由並交回公司代表。公司代表表示她會再就各人的回應加以考慮是否重新調配。 翌日12月30日，被告公司重新調派部份員工的工作地點及/或時間，就本案的五位申索人而言，只有第九及第十一申索人獲重新調派工作地點及/或時間。可是，被告公司只以電郵方式把該更改資料傳遞予工會代表及勞工處，並無自行通知各員工。 被告公司除了在發出該電郵之後致電勞工處及工會代表查詢對方是否收悉該電郵郵件外，不曾與工人、勞工處或工會代表就有關調派或離職安排再作溝通。 部份工人不滿被告公司的安排，於12日31日在工會的參予下罷工。 直至2012年1月6日，被告公司向在1月1日及以後沒有到新崗位工作的清潔工人包括五位申索人郵寄終止僱傭合約的通知。 在該些為被告公司服務滿或超過兩年的163位工人中，只有6人在1月1日後繼續為被告公司服務，此六人本身是與 +被告公司一早簽訂了為其他政府服務合約提供服務的僱傭合約。 五名申索人 就五名申索人而言，除了第四申索人是在2008年7月4日入職被告公司以外，其餘四人皆在2008年1月１日入職。五人入職時皆是與被告公司簽訂了各自的政府標準合約。該些合約訂明他們是獲被告公司聘用為清潔服務員, 在灣仔區提供潔淨服務。在2010年1月1日，由於被告公司與食環署的舊「灣仔區街道潔淨服務合約」終結及簽訂新合約--食環署合約，也因為食環署合約條文的規定，被告公司分別與五人重新簽訂另一份政府標準合約，全部由2010年1月1日生效，工資重新釐訂。 及至2011年5月1日, 因為《最低工資條例》的實施，被告公司再與五人各自重新簽訂另一份政府標準合約，全部由2011年5月1日生效，工資重新釐訂 (以下簡稱「第三份合約」)。上述第二及第三份合約均列明五人的工作地點是食環署合約服務範圍（更註明食環署合約編號）, 每人各自上下班時間及每月工資。 五位申索人自入職至2011年12月31日皆只為當時適用的「灣仔街道潔淨服務合約」提供清潔服務。除了第七申索人在受僱期間曾有一次工作時間的變更外，五人的工作地點及工作時間從無改變。工作時間是依從各自與被告公司簽訂的政府 +標準合約訂明的時間，工作地點也是食環署合約的服務範圍。現列明如下： 申索人 工作地點 上班時 下班時間 工時  第三申索人 堅拿道公厠 17:30 23:30 6小時  第四申索人 告士打道站 17:30 23:30 6小時  第七申索人 灣仔街道 07:00 11:30 及 9.5小時    12:30 17:30   第九申索人 黄泥涌道公厠 17:30 23:30 6小時  第十一申索人 吉安街公厠 17:30 23:30 6小時   另外，五位申索人的背景簡述如下： 申索人 年齡 學歷 住址 入職日(2008年)  第三申索人 80 小學三年級 柴灣邨 1月1日  第四申索人 64 可寫自己姓名 鴨脷洲利東邨 7月4日  第七申索人 72 小學程度 灣仔石水渠街 1月1日  第九申索人 84 小學三年級 九龍何文田邨 1月1日  第十一申索人 71 小學程度 堅尼地城卑路乍街 1月1日   兩次接觸 從2011年12月7日至2012年1月6日被告公司向五人郵寄解僱信期間，除了第九申索人曾出席12月28日勞工處會議的其中一個時段外，五人與被告公司只曾就着12月31日後的安排接觸過兩次。第一次是它在12月中下旬派員到各站頭通知他們食環署合約將於12月31日屆滿，並查詢他們是否願意 +被調往其他地方工作。當中除了第十一申索人外，其餘四人皆簽署了約滿回條。 第二次接觸則是五人皆出席了12月29日的勞工署會議，並在會上獲派發調配通知。但並無直接或單獨與申索人商討。依據各人獲發的調配通知的內容，被告公司要求五人於2012年1月1日及以後的工作安排如下： 申索人 工作地點 上班時 下班時間 工時  第三申索人 上環市政大樓公厠 17:00 23:00 6小時  第四申索人 黃泥涌街市 16:30 23:00 6.5小時  第七申索人 上環市政大樓 07:00 12:00 及 9小時    13:00 17:00   第九申索人 上環市政大樓公厠 17:00 23:00 6小時  第十一申索人 燈籠洲街市公厠 14:00 18:00 及 7小時    19:00 22:00    雖然被告公司在12月30日重新安排第九及第十一申索人的工作地點及時間如下所列, 但是, 該訊息卻並未有送達予兩人。 申索人 工作地點 上班時 下班時間 工時  第九申索人 駱克道市政街市 17:00 22:00 5小時  第十一申索人 上環市政大樓公厠 17:00 23:00 6小時   +申索人案情 五名申索人的案情是他們先後與被告公司簽訂了三份政府標準合約，該等合約訂明申索人是獲聘用為其當時與食環署簽訂的「灣仔區街道潔淨服務合約」提供清潔服務，當中更列明工作地點只限於該些清潔服務合約的服務地點，也訂明了工作時間、時數及工資。既然食環署合約於12月31日告終，雙方未有另訂僱傭合約，被告公司也無跟從《僱傭條例》的規定要約他們簽訂新合約或續訂合約，故此，認為被告公司必須支付遣散費或終止僱傭金。 被告公司案情 被告公司的案情是它與五人的僱傭關係並無因為食環署合約屆滿而告終，因為它已於12月中通知他們將會在2012年1月1日調派他們到其他地方工作，也在12月29日以書面通知他們的新工作地點及時間，只是他們沒有遵從該調派命令於2012年1月1日或之後到新工作地點工作，是他們不依從合法合理命令，它也就有權因此而在1月6日向他們發出解僱通知書，只是當中表明不追討他們代通知金而已。 故此, 它認為他們的申索無理。 五位申索人自行出庭作供及安排了工會代表為其作供。另一方面，被告公司安排了公司代表及人力資源副主任王淑燕出庭作供。 +事實裁決 在裁決此案時, 本席已仔細地考慮了雙方提交的所有證人供詞、證物，各證人在庭上作供時的內容及神態，以及所有相關的背景因素。 遣散費 根據《僱傭條例》(第57章)第31Ｂ條，凡僱員已按連續性合約受僱不少於二十四個月，並因裁員而遭解僱，僱主便有責任付給該僱員遣散費。 就此案中，雙方並不爭議五位申索人已按連續性合約受僱不少於二十四個月，雙方的爭議在於他們是否因裁員而遭解僱。 《僱傭條例》第31D條規定：- “ (1) 就本部而言，及除本部另有規定外，僱員只有在以下情況才可視為遭僱主解僱─ 不論是否有給予通知或代通知金，僱主並非按照第9條終止該僱員的僱傭合約； 如僱員根據合約受僱一段固定時期，而在該時期屆滿後未有以同一合約續約；或 僱員在因僱主的行為而有權按照第10條不給予通知或代通知金而終止合約的情況下，給予或不給予通知或代通知金而終止合約。 (2) 就本部而言，僱員在以下情況不得視為遭僱主解僱─ (a) 僱員的僱傭合約已予續訂，或已以新僱傭合約獲同一僱主再次聘用；及 (b) 續約或再次聘用是在緊接前一合約所訂的僱傭終結時生效。 +(3) 為使第(2)款適用於在休息日或假日終結僱傭的合約，如續約或再次聘用是在休息日或假日翌日生效或該翌日之前生效，則續約或再次聘用須視為是在緊接前一合約所訂的僱傭終結時生效。” 遭解僱 本席在仔細考慮所有證據後，認為五位申索人是在第31D(1)(b)條的情況下遭被告公司解僱，也即是他們是在第三份合約受僱一段固定時期，而在該時期屆滿後未有以同一合約續約，而本席認為該段固定時期是2011年5月1日至2011年12月31日。 五位申索人與被告公司在2011年5月1日起的僱傭關係是以他們各自簽訂的第三份合約為依歸。該五份合約均為規定格式及條款的政府標準合約, 它們只在薪金金額、工作時間、工作時數有異。 本席在理解該五份合約時，已顧及其背後的事實主體。被告公司是因為簽訂了食環署合約，故聘用五位申索人為該合約提供服務，也因為食環署合約的明文規定，它在聘用五人時，必須與他們簽訂政府的「標準僱傭合約」。 事實上，自2005年4月起, 政府就以用非技術工人為主的外判服務合約，規定有關服務合約承辦商必須與其聘用的非技術工人簽訂「標準僱傭合約」，以確保由承辦商聘用為該服務合約提供服務的僱員的工作地點、工作時數、工資的計算及數額須依從該服務合約相關條文規範，目的在於為向政府提供服務但由服務承判商聘用的非技術工人提供清晰及穩定的工作 +地點及時間。外判服務合約更設有扣分制度懲罰違規的承判商。 第三份合約便是因應《最低工資條例》自2011年5月1日起實施所修訂的「標準僱傭合約」的版本。 就該五份合約內容而言, 與本案相關的條文包括 ：- “適用於政府服務合約承辦商 與其僱員的標準僱傭合約(註一) 政府服務合約編號：FEHDSC/63/09 (註二) …… 本僱傭合約由2011年5月1日起生效。 僱員由僱主聘用為清潔服務員(職位名稱) 。工作地點是灣仔區街道潔淨服務(限於政府服務合約編號：(註2) FEHDSC/63/09 的範圍) 。 如有需要, 僱主可在香港島區域(註3)內作緊急或短暫及有限度的調配(註2) 。 (甲) 僱員每星期工作6天, 每天的工作時間：(註4) [列明具體的上下班時間]…… 在特殊情況下，因應有關採購部門的要求，僱主可將上述工作時間作出適當調動，但有關調動祇屬短暫性，亦不會影響僱員原本每天的工作時數。 …… 根據本僱傭合約第三(甲)條款所訂的工作時間工作，僱員應收取: 每月工資為港幣[列明具體的工資數字]…… …… 廿一. 對本僱傭合約任何條款(包括附表)作出的變更、修改、取消或增訂，不得終絕或減少本僱傭合約賦予僱員的任何權利、利益或保障，並由僱主及僱員簽署修訂，否則均屬無效；而僱主亦須將僱傭雙方已簽署的修訂副本交給僱員保存。” [註解:上述斜字部份為本席附加的字句] +第三份合約的第廿二及廿三條條文更列明僱員與被告公司協議向食環署提供第三份合約副本、工資記錄、值勤記錄及其他有關資料以作記錄及監察被告公司履行食環署合約內有關僱傭規定之用。 由此可見，第二條文嚴格規限了工作地點必然是需要為食環署合約提供潔淨服務的地點，也即是申索人只可在食環署合約的範圍工作, 雖然第二條文同時提供了調派條款，只是，該條款是一條相當嚴謹的條款，被告公司僅僅可以在有需要時，在香港島區域內作緊急或短暫及有限度的調配。換言之，被告公司即使在它有實際需要時，也不可以長時間更遑論永久地調派申索人往食環署合約上列明的清潔地點以外的其他地方工作。 故此, 單從第二條文可見，第三份合約的存續是緊繫於食環署合約的固定期限。而食環署合約的第二部份的1(a)段[證物D-238第34頁]列明了食環署合約的固定期限為2010年1月1日至2011年12月31日。由是，第三份合約的條款必定默示了雙方的僱傭合約至2011年12月31日告終這隱含條款。 還有，第三份合約的其他條文同樣顯示了這隱含條款的存在。 首先，合約的標題已清晰道明了這是被告公司作為食環署合約的承辦商與其僱員簽訂的僱傭合約。還有，合約中的主要條款包括工作時間、時數及工資的條款，均受食環署合約的 +相關條文規範。另外，合約更明文禁止變更、修改、取消或增訂，不得終絕或減少該合約賦予僱員的任何權利。雙方也明文協議讓食環署監管合約的履行情況。 誠然，這些條文在食環署合約終結後根本不能予以履行，因此，第三份合約必然隱含了食環署合約的屆滿日便是第三份合約的終結日這條款。 由是，第三份合約必然在2011年12月31日告終。 因此，根據五位申索人各自簽署的第三份合約，五人受僱的固定時期至2011年12月31日屆滿，而在其屆滿後被告公司因為在新一輪的投標程序中落選，所以不能與五人以同一合約續約，是故，五人的情況切合《僱傭條例》第 31B(2) 及第31D(1)(b)條的條件，也因此可依據第31B(1)(a) 條視為遭僱主因裁員而解僱，被告公司必須給付遣散費。 另一方面，即使假設上述的隱含條款並不存在，也即是第三份合約並沒有隨着食環署合約在2011年12月31日屆滿而告終，被告公司始終不能履行第三份合約的第二條款。 原因是既然食環署合約在2011年12月31日屆滿而告終，被告公司不可能再提供食環署合約上的清潔地點予五位申索人工作，可是，如上所述，第二條款的調派條款根本不容許被告公司長時間或永久地調派申索人往其他地方工作。 故此，被告公司在上述第一次派員分別接觸五位申索人，查詢他們對於被告公司打算調派他們往其他地方工作的意 +向時，他們是有權拒絕。更何況五人在受聘多年來，一直在同一地點工作。 及至12月29日，當被告公司向他們發出書面調配通知命令他們於2012年1月1日到指明的新工作地點上班，而該等地點全非食環署合約上的清潔地點時，它是單方面改動了雙方已經訂立的重要的僱傭條件。 還有，第三份合約的第三條條款清晰列明被告公司只可在特殊情況下，因應食環署的要求，才可將合約上列明的工作時間作出適當調動，而所有調動祇限於短暫性，不能影響原本訂明的每天工作時數。由是，從調派通知可見，被告公司也單方面改動了五人的工作時間甚或時數，也是單方面改動了另一個重要的僱傭條件。 是故，五位申索人是有權如他們當日的做法在當場即時拒絕調派，以及沒有在2012年1月1日到新工作地點上班。他們此舉無疑是行使他們面對僱主違約時終止該僱傭合約的權利。 這權利正好在 Western Excavating (ECC) Ltd v Sharp [1978] 1 QB 761 一案中闡明，也就是變相解僱的法律原則。意謂若僱主嚴重違反與僱員的合約，而明示或暗示他不再受該僱傭合約內的基本條款約束，僱員則可以自行解除進一步履行該僱傭合約內的責任。當僱員作出這抉擇，他是基於僱主的行為而終止該僱傭合約。僱主的違約行為便構成變相解僱。僱員可以即時離職而無須給予僱主通知；他亦可以給予僱主通知或於 +通知期屆滿時離職。在這個法律原則下，雙方的僱傭合約是在2011年12月31日後五位申索人因為被告公司嚴重違約而終止雙方的僱傭合約，被告公司不但無權在2012年1月6日以他們沒有到新工作地點上班而指控他們自動離職，也無權依據《僱傭條例》第9條即時解僱他們，也就不能依據第31C(1)條免除支付遣散費的責任。相反，根據第31D(1)(c)條，五人可被視為遭僱主解僱, 被告公司須向其支付遣散費。 雖然被告公司曾提出五位申索人受公司印制的員工守則中的無限制調派條款規管，但是，根本無實質證據證明被告公司曾派發該守則予五人或曾通知他們有關內容，而且，這個聲稱也只在審訊中段才突然提出，本席不相信被告公司曾向五位申索人提及這條款。 再者，第三份合約內既有第二條清晰的調派條款，再結合合約第廿一條對合約條款變更的嚴格限制，第三份合約不可能容納該員工守則中的無限制調配條款，或任何將申索人永久調派往其他工作地點的隱含條款 (見 Wong Yuk Ling v East East Food Products Limited, HCLA95/2002)。 約滿回條 另一方面，本席也仔細地考慮了被告公司在第一次與五位申索人就着食環署合約完約而接觸，以及第三、四、七及九申索人簽署了約滿回條對此申索的影響。 五位申索人的整體案情是被告公司約在中下旬派員在他們各自的工作時間期間到他們各自的工作地點(第三及四申索人 +約在12月15日後；第七申索人在12月23或24日；第九申索人在12月26日；第十一申索人在12月28日)，告訴他們食環署合約將於12月31日終止，徵詢他們是否願意在其後被調派往其他地方工作，但具體地方、時間及調派安排並無說明，五人皆即時拒絕。 第三、四、七及九申索人均指稱當時對方有向他們展示一張文件，但他們看不懂，對方也沒有講解內容，他們簽署時，根本不知當中內容。第四申索人稱他是因為對方明言簽了他手上的文件，便會獲盡早發薪及支付年假薪酬；第七申索人稱他是因為對方指那純粹是約滿通知書，故按指示簽署。另外二人則指是在不明所以的情況下被安排簽署，四人聲言他們不知道不願意調派便等同決定自動辭職，也從未表示辭職。 另一方面，被告公司除了安排了聲稱自己在十二月中，分別與第三及第九申索人面談並簽收約滿回條的公司代表出庭作供外，並沒有安排與另外三名申索人就約滿回條溝通的員工出庭作供。 公司代表聲稱她分別與第三及第九申索人面談時，雖然未有具體調派安排及地點，但有把約滿回條的內容包括兩項選擇讀出，並讓他們選擇，並告訴他們此舉的目的是先徵詢他們的意願，再進行下一步的安排。她在當時得悉二人均不願被調派往其他地方工作後，替他們剔取第二項選擇，再讓他們簽署。她指她更曾向第九申索人說，他不依被告公司調派，等同離職。 +另外，在盤問過程中，王淑燕女士最終承認並無直接與五人溝通，也不知同事與五人的溝通情况。只稱在12月16日獲上司指示，帶同約滿回條，在12月20-21日往各食環署清潔站頭，通知未服務滿兩年的員工離職日期；另在12月23日後通知服務超越兩年的員工，徵詢他們就派調往其他地方工作的意願。 本席在仔細考慮所有證據後，包括所有證人供詞、証物，以及各證人在庭上作供時的內容及神態，和所有相關的背景因素，認為被告公司的證人，皆非誠實可靠的證人，她們的證言及供詞矛盾之處甚多，也與當日具體情況殊不脗合。她們作供時更多番迴避，不斷轉變立場，其證供不可信。 相反，雖然四位申索人的庭上證言及書面供詞有不同之處，但是，考慮到四人年紀老邁，教育程度偏低，就本席在審訊過程中的觀察，他們的聽力、理解能力及表達能力明顯不高，他們的供詞非由專業人士代筆，出現詞不達意的情況，誠可理解。然而，當他們作供時，只要給予清晰的提問，讓他們真正理解問題，以及給予他們足夠時間整理思緒，他們最終都能清晰交代事件的關鍵細節。加上,他們的證供與他們個人的情况及客觀情况脗合，本席信納他們的證供。 相反，本席不信納公司代表曾與第三及第九申索人面談並簽收約滿回條。理由是她這項聲稱不但從沒在其多份供詞中提及，也竟然沒有在多次提訊及兩日審訊中作出。更令人難以置信的是她在第三申索人作供時，也不提及並向他加以質詢。 +她也不能合理地解釋何以她一直認不出第三及第九申索人的容貌。此外，她根本連基本情況諸如日期、時間也說不出，在場人士舉動也出現多個版本，尤其事隔只有兩個多月，以她年青專業的背景，理應記憶猶新。 再者，在相互比對她聲稱是她書寫的兩份約滿回條上的字跡 [證物 D-208(1) 及 D-208(7)]，再比對她在庭上書寫[證物 D-210 及 D-213(1)] 及她其他文件的字跡，她顯然在說謊。 因此，被告公司根本無實質證據爭議五名申索人在當時與被告公司派來的員工溝通的說法。 還有，再細閱回條內容，有關條文如下: “[ ]本人願意由 2012 年 01 月 01 日起調往漁灣邨、香港海防博物館、置富花園或( )作同一性質的工作。由即日至調職期間，如本人改變決定，不打算到　　　　工作，則作自動辭職論，須給予公司 7 天的通知期或代通知金以終止僱傭合約。 [ ]基於個人理由，本人不願意調往其他地盤工作，並決定自動辭職，最後工作日為　　　　年　　月　　日。 *請將不適用者刪去。 *請在上述適當的空格內填上“ ( ”。” 無可置疑，回條只提供了兩項選擇供員工揀選--願意調往其他地盤工作，或者不願意調派，便是決定自動辭職，並無其他選擇，故此，回條並不能反映當時簽署者的真正意願的可信性甚高，也切合了四位申索人指稱當時只表示不願意調派，卻從無表示辭職的説法。 +再考慮到四人的年紀、學歷及他們各自簽署的約滿回條上的字跡，本席信纳他們的説法，他們只在回條上簽署，其他部份是由被告公司的員工填寫。他們看不懂，没有人給予講解，也不知道不願意調派，便是決定自動辭職。 故此，在仔細考慮約滿回條的正確詮釋及四位申索人並不是在完全知情及明瞭該回條的效應的情況下簽署，本席裁決四位申索人雖然簽署了約滿回條，他們實際上並無決定或表示自動辭職，該約滿回條也不可終止雙方的僱傭關係。 事實上，從被告公司的案情及其間雙方的行為更進一步印證了雙方並不視四位申索人簽署了約滿回條便是自動辭職這事實。 首先，即使被告公司自己的說法，它當時安排員工往各站頭，目的是通知清潔員工潔淨合約將於12月31日終結，只想初步了解各員工對調派的意願，以決定下一步行動，所以具體的調派安排及地點也未確定。 再者，雙方之後根本無就自願辭職作出任何行動，被告公司不但没有作出任何接受四人辭職的相應行動，相反，它在12月29日向五名申索人發出調配通知，要求他們必須在2012年1月1日往新工作地點工作，否則視為無故缺席論。 及後在2012年1月6日向各申索人郵寄通知書，通知各人因為他們没有在2012年1月1日及之後往新工作地點上班，故被視為自動離職而終止雙方合約。由此可見，被告公司和申 +索人從來不視四位申索人簽署該回條是自動辭職，被告公司自始至終都清楚知道申索人並没有表示辭職。 遣散費權利的免除 另一方面，本席亦考慮了被告公司作出調派員工往其他地方工作的安排，會否讓它可依據《僱傭條例》第31C條免除它支付遣散費的責任。由於被告公司要求改動受僱地點及時間，以及大部份第三份合約的條款都不能保留，本席只需要考慮第31C(3)條的適用性，也即是被告公司有沒有在僱傭合約終止之前不少於七天，以書面向五位申索人要約續約或以新合約再次聘用，而該要約對五人而言，構成適合僱傭的要約，也不遜於原來的合約，如五人不合理地拒絕該項要求，則喪失獲發遣散費的權利。 只是，綜觀被告公司的所有安排，並没有符合該條文的條件。在本案件中，被告公司只曾就着2011年12月31日之後的安排，與五名申索人聯絡兩次。當中只有第三、四及第七申索人在首次的接觸時，符合條文規定僱傭合約終止或合約期屆滿之前不少於七天的規定。 再者，在第一次聯絡過程中，被告公司只出示了約滿回條，可是在回條裡面，並無訂明任何新合約的條件，連基本僱傭條件諸如工時、薪金、具體工作地點、假期完全欠奉，它不可能符合條例要求。 +至於第二次聯絡便是12月29日，不單在時間上已超越七天規定，唯一的文件調配通知，上面只列有工作地點及時間，並無說明薪金或其他基本僱傭條件。 還有，各申索人的工時，皆有變動及增減，第七及第十一申索人的工作時間更加是大幅改動數小時之多，這必然如申索人所言影響他們其他的兼職工作及家中事務的安排，再加上五位申索人過往一直在同一地點工作，他們全部已達高齡，教育程度偏低，甚至目不識丁，被調往全新工作地點，自然有一定因難。 加上，被告公司自始至終皆無說明薪金數目，雖然公司代表指稱，她曾在12月28日勞工處會議中提及薪金將不低於原合約及法定最低工資，只是四名申索人根本沒有出席當日會議，再者，根本沒有證據顯示公司代表在發出該言論時，唯一有出席12月28日會議其中一段時間的第九申索人在場。無論如何，即使假設五名申索人當時在場，只是被告公司既然改動了他們的工作時間、工時、地點，單單概括地聲稱不低於原合約及法定最低工資，不能證明新的僱傭條件不遜於原合約。凡此種種，也都顯示了五人並非無理地拒絕被告公司的要求。 綜上所述，被告公司的安排，並不符合該法例條文的要件，五名申索人有權在12月29日拒絕被告公司的要求，被告公司也不能以曾經為五名申索人安排新工作，而解除其支付遣散費的責任。 +為新承辦服務商服務 另外，雖然被告公司嘗試爭議，申索人在2012年1月1日起已經由取替被告公司成為食環署新承判商聘用為清潔工人，繼續在他們各自的舊崗位工作。只是，被告公司承認，直至是次審訊中段，它根本不知道五人是否有獲該公司聘用。它也承認五人在其公司任職期間，根本從來沒有表示他們將會轉職該新承判商。 另一方面，五名申索人表示他們一直等待被告公司的確實安排，直至無果，才決定在2012年1月1日為新承判商服務，雙方的僱傭合約亦只在上班之後才正式訂立書面合約。由是，被告公司根本不可能因為申索人最後在2012年1月1日轉職其他公司，而免除其支付遣散費的責任。 裁決 本席已考慮了所有證據以及被告公司的所有抗辯理據及說法，認為無一成立。五名申索人與被告公司的僱傭合約，已隨着食環署合約在2011年12月31日屆滿而終結，雙方並無續約或簽訂新合約，故必須向申索人支付遺散費。另一方面，即使假設雙方的僱傭合約並無因食環署合約終結而告終，但被告公司的調派要求，違反了雙方僱傭合約基本條文，故此，申索人有權在12月29日拒絕調派指令，並在2012年1月1日拒絕往新工作地點工作而要求支付遣散費。 故此，依據《僱傭條例》第31D條，五名申索人皆因裁員而遭解僱，故五名申索人(A)項:遣散費申索得直，被告公司 +須即時支付: 第三申索人港幣13,412.05元；第四申索人港幣3,003.42元；第七申索人港幣21,848元；第九申索人港幣13,827.86元；第十一申索人港幣13,826.82元。 因為本席已裁決五人的遣散費追討得直，故第二項有關終止僱傭金的追討被撤銷。 上述判決款額的利息根據《勞資審裁處條例》第25章第39(3)條計算。 訟費 本席已考慮了雙方的訟費陳詞，訟費判決的基本原則是訟費應以訴訟結果而定，本案並不存在任何特殊情況需要偏離此原則。依據《勞資審裁處條例》第28條，訟費包括與訟者及其證人出庭聆訊而需招致的合理開支及所損失的工資或薪金，考慮了訟費的合理性，本案之背景因素，故命令被告公司即時支付:- 第三申索人港幣197元；第四申索人港幣1,020元； 第七申索人港幣180元；第九申索人港幣290元；第十一申索人港幣199元。 此款額的利息也依據《勞資審裁處條例》第39(3)條計算，由被告公司支付。 勞資審裁處審裁官 （ 林美施 ） + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/zh_cases_hklat/2012_HKLaT_2/case.json b/zh_cases_hklat/2012_HKLaT_2/case.json new file mode 100644 index 0000000..74549d8 --- /dev/null +++ b/zh_cases_hklat/2012_HKLaT_2/case.json @@ -0,0 +1,26 @@ +{ + "Date": "20 Sep, 2012", + "Action No.": "LBTC595/2012", + "Neutral Cit.": "[2012] HKLaT 2", + "case_title": "鄭國華及另四人 對 利興清潔服務有限公司", + "page_title": "鄭國華及另四人 對 利興清潔服務有限公司 | [2012] HKLaT 2 | HKLII", + "case_history": [], + "appeal_history": [ + { + "name": "LBTC595/2012", + "link": "https://www.hklii.hk/tc/appealhistory/LBTC/2012/595" + } + ], + "case_url": "https://www.hklii.hk/tc/cases/hklat/2012/2", + "neutral_cit": "[2012] HKLaT 2", + "court_code": "HKLAT", + "content": "LBTC595/2012 鄭國華及另四人 對 利興清潔服務有限公司\nLBTC 595/2012\n香港特別行政區\n勞資審裁處\n申索書編號 2012 年第595 號\n________________________\n第三申索人\n鄭國華\n第四申索人\n黎亞來\n第七申索人\n廖發開\n第九申索人\n何清海\n第十一申索人\n徐志中\n與\n被告公司\n利興清潔服務有限公司\n________________________\n主審審裁官： 林美施審裁官\n聆訊日期： 2012年3月21-23、26-27日，5月25-28日及6月14日\n裁決日期： 2012年7月13日\n裁決理由書日期： 2012年9月20日\n________________________\n裁決理由書\n________________________\n背景\n1.\n在本案中，五名申索人，分別是第三、第四、第七、第九及第十一申索人向被告公司追討遣散費及交替申索終止僱傭金。被告公司並不爭議他們追討的金額計算，但認為並無責任支付。\n背景事實\n2.\n對於本案的背景事實，雙方並無重大爭議。\n3.\n被告公司是一間提供多類型清潔服務的公司，它的服務對象包括政府及各類型的公私型機構。它經投標程序，成功與食物環境衛生署(以下簡稱「食環署」) 簽訂維期兩年的「灣仔街道潔淨服務合約」，在2008年1月1日至2009年12月31日，向食環署提供灣仔街道的清潔服務。其後再經投標程序，與食環署簽訂另一份維期兩年的「灣仔街道潔淨服務合約」，也即是政府服務合約編號：FEHDSC/63/09 (以下簡稱「食環署合約」)，繼續在2010年1月1日提供灣仔街道的清潔服務至2011年12月31日。只是，在2011年12月7日，被告公司獲食環署書面通知，它在新一輪投標程序中並未獲揀選為2012年1月1日起维期兩年的合约的承判商，故此，雙方將在食環署合約於2011年12月31日屆滿後，不會簽訂新合約。\n4.\n其時，因此而受影響的員工合共375名，其中371名為月薪制員工，與被告公司簽訂了政府強制性規定承辦商在聘用非技術工人為政府服務合約提供服務時必須簽訂的規格化標準合約，合約名為「適用於政府服務合約承辦商與其僱員的標準僱傭合約」(以下簡稱「政府標準合約」)，另外四名員工則為工作少於七天的臨時日薪員工，因此毋須簽訂政府標準合約。\n5.\n被告公司陸續派員在12月中下旬，到各清潔站頭通知清潔工人食環署合約將於12月31日終結，對於未做滿兩年的清潔工人，給予七日的書面通知，終止雙方的僱傭合約；而另一方面，對於工作屆滿或超越兩年的工人，合共163人，則查問他們是否接受被告公司在2012年1月1日調派他們往其他地點工作。當中有部份員工簽署了由被告公司編製規定格式的「地盤約滿安排員工回條」(以下簡稱「約滿回條」)。\n6.\n及至12月23日，被告公司獲勞工處通知，有員工向它及「清潔工人職工會」投訴被告公司誤導工人簽署約滿回條以逃避支付遣散費的責任，故邀請其與員工開會，會議訂於12月28日舉行。\n7.\n在12月28日會議中，出席者包括兩位勞工處職員、「清潔工人職工會」幹事胡美蓮(以下簡稱「工會代表」)及被告公司執行董事胡瀞心(以下簡稱「公司代表」)。部分的清潔工人由工會聯絡, 部分工人則由其他工人通知出席。\n8.\n當日會議並無會議議程,出席的清潔工人並無出席時間、人數的安排，工人是不定時、無編制，以流水式自由進出會議。在會上，被告公司角色被動，無大綱議題, 只是回答個別員工的提問。由於場面非常混亂，工會代表主動要求被告公司以書面說明它的調派安排，列明每位員工的新工作地點及時間，並相約在翌日開會時逐一派發予員工。\n9.\n在12月29日的會議上，出席者同樣包括兩位勞工處職員、工會代表及公司代表。被告公司準備了162份(當中遺漏一人)名為「有關工作地點調配通知」的文件(以下簡稱「調配通知」)，每份調配通知列明了每位員工將被調派往的新工作的地點及時間。其時，勞工處及工會代表要求公司代表親自將每張調配通知即場派予出席的員工。對於沒有出席的26位員工的調配通知，則由被告公司自己收回，勞工處及工會代表皆拒絕代領。\n10.\n部份有出席的員工(包括本案的五名申索人)即場在各自獲發的調配通知上寫上拒絕調配的理由並交回公司代表。公司代表表示她會再就各人的回應加以考慮是否重新調配。\n11.\n翌日12月30日，被告公司重新調派部份員工的工作地點及/或時間，就本案的五位申索人而言，只有第九及第十一申索人獲重新調派工作地點及/或時間。可是，被告公司只以電郵方式把該更改資料傳遞予工會代表及勞工處，並無自行通知各員工。\n12.\n被告公司除了在發出該電郵之後致電勞工處及工會代表查詢對方是否收悉該電郵郵件外，不曾與工人、勞工處或工會代表就有關調派或離職安排再作溝通。\n13.\n部份工人不滿被告公司的安排，於12日31日在工會的參予下罷工。\n14.\n直至2012年1月6日，被告公司向在1月1日及以後沒有到新崗位工作的清潔工人包括五位申索人郵寄終止僱傭合約的通知。\n15.\n在該些為被告公司服務滿或超過兩年的163位工人中，只有6人在1月1日後繼續為被告公司服務，此六人本身是與被告公司一早簽訂了為其他政府服務合約提供服務的僱傭合約。\n五名申索人\n16.\n就五名申索人而言，除了第四申索人是在2008年7月4日入職被告公司以外，其餘四人皆在2008年1月１日入職。五人入職時皆是與被告公司簽訂了各自的政府標準合約。該些合約訂明他們是獲被告公司聘用為清潔服務員, 在灣仔區提供潔淨服務。在2010年1月1日，由於被告公司與食環署的舊「灣仔區街道潔淨服務合約」終結及簽訂新合約--食環署合約，也因為食環署合約條文的規定，被告公司分別與五人重新簽訂另一份政府標準合約，全部由2010年1月1日生效，工資重新釐訂。\n17.\n及至2011年5月1日, 因為\n《最低工資條例》\n的實施，被告公司再與五人各自重新簽訂另一份政府標準合約，全部由2011年5月1日生效，工資重新釐訂 (以下簡稱「第三份合約」)。上述第二及第三份合約均列明五人的工作地點是食環署合約服務範圍（更註明食環署合約編號）, 每人各自上下班時間及每月工資。\n18.\n五位申索人自入職至2011年12月31日皆只為當時適用的「灣仔街道潔淨服務合約」提供清潔服務。除了第七申索人在受僱期間曾有一次工作時間的變更外，五人的工作地點及工作時間從無改變。工作時間是依從各自與被告公司簽訂的政府標準合約訂明的時間，工作地點也是食環署合約的服務範圍。現列明如下：\n申索人\n工作地點\n上班時\n下班時間\n工時\n第三申索人\n堅拿道公厠\n17:30\n23:30\n6小時\n第四申索人\n告士打道站\n17:30\n23:30\n6小時\n第七申索人\n灣仔街道\n07:00\n11:30及\n9.5小時\n12:30\n17:30\n第九申索人\n黄泥涌道公厠\n17:30\n23:30\n6小時\n第十一申索人\n吉安街公厠\n17:30\n23:30\n6小時\n19.\n另外，五位申索人的背景簡述如下：\n申索人\n年齡\n學歷\n住址\n入職日\n(2008\n年\n)\n第三申索人\n80\n小學三年級\n柴灣邨\n1月1日\n第四申索人\n64\n可寫自己姓名\n鴨脷洲利東邨\n7月4日\n第七申索人\n72\n小學程度\n灣仔石水渠街\n1月1日\n第九申索人\n84\n小學三年級\n九龍何文田邨\n1月1日\n第十一申索人\n71\n小學程度\n堅尼地城卑路乍街\n1月1日\n兩次接觸\n20.\n從2011年12月7日至2012年1月6日被告公司向五人郵寄解僱信期間，除了第九申索人曾出席12月28日勞工處會議的其中一個時段外，五人與被告公司只曾就着12月31日後的安排接觸過兩次。第一次是它在12月中下旬派員到各站頭通知他們食環署合約將於12月31日屆滿，並查詢他們是否願意被調往其他地方工作。當中除了第十一申索人外，其餘四人皆簽署了約滿回條。\n21.\n第二次接觸則是五人皆出席了12月29日的勞工署會議，並在會上獲派發調配通知。但並無直接或單獨與申索人商討。依據各人獲發的調配通知的內容，被告公司要求五人於2012年1月1日及以後的工作安排如下：\n申索人\n工作地點\n上班時\n下班時間\n工時\n第三申索人\n上環市政大樓公厠\n17:00\n23:00\n6小時\n第四申索人\n黃泥涌街市\n16:30\n23:00\n6.5小時\n第七申索人\n上環市政大樓\n07:00\n12:00及\n9小時\n13:00\n17:00\n第九申索人\n上環市政大樓公厠\n17:00\n23:00\n6小時\n第十一申索人\n燈籠洲街市公厠\n14:00\n18:00及\n7小時\n19:00\n22:00\n22.\n雖然被告公司在12月30日重新安排第九及第十一申索人的工作地點及時間如下所列, 但是, 該訊息卻並未有送達予兩人。\n申索人\n工作地點\n上班時\n下班時間\n工時\n第九申索人\n駱克道市政街市\n17:00\n22:00\n5小時\n第十一申索人\n上環市政大樓公厠\n17:00\n23:00\n6小時\n申索人案情\n23.\n五名申索人的案情是他們先後與被告公司簽訂了三份政府標準合約，該等合約訂明申索人是獲聘用為其當時與食環署簽訂的「灣仔區街道潔淨服務合約」提供清潔服務，當中更列明工作地點只限於該些清潔服務合約的服務地點，也訂明了工作時間、時數及工資。既然食環署合約於12月31日告終，雙方未有另訂僱傭合約，被告公司也無跟從\n《僱傭條例》\n的規定要約他們簽訂新合約或續訂合約，故此，認為被告公司必須支付遣散費或終止僱傭金。\n被告公司案情\n24.\n被告公司的案情是它與五人的僱傭關係並無因為食環署合約屆滿而告終，因為它已於12月中通知他們將會在2012年1月1日調派他們到其他地方工作，也在12月29日以書面通知他們的新工作地點及時間，只是他們沒有遵從該調派命令於2012年1月1日或之後到新工作地點工作，是他們不依從合法合理命令，它也就有權因此而在1月6日向他們發出解僱通知書，只是當中表明不追討他們代通知金而已。 故此, 它認為他們的申索無理。\n25.\n五位申索人自行出庭作供及安排了工會代表為其作供。另一方面，被告公司安排了公司代表及人力資源副主任王淑燕出庭作供。\n事實裁決\n26.\n在裁決此案時, 本席已仔細地考慮了雙方提交的所有證人供詞、證物，各證人在庭上作供時的內容及神態，以及所有相關的背景因素。\n遣散費\n27.\n根據\n《僱傭條例》\n(\n第57章\n)第31Ｂ條，凡僱員已按連續性合約受僱不少於二十四個月，並因裁員而遭解僱，僱主便有責任付給該僱員遣散費。\n28.\n就此案中，雙方並不爭議五位申索人已按連續性合約受僱不少於二十四個月，雙方的爭議在於他們是否因裁員而遭解僱。\n29.\n《僱傭條例》\n第31D條\n規定：-\n“ (1)\n就本部而言，及除本部另有規定外，僱員只有在以下情況才可視為遭僱主解僱─\n(a)不論是否有給予通知或代通知金，僱主並非按照\n第9條\n終止該僱員的僱傭合約；\n(b)如僱員根據合約受僱一段固定時期，而在該時期屆滿後未有以同一合約續約；或\n(c)\n僱員在因僱主的行為而有權按照\n第10條\n不給予通知或代通知金而終止合約的情況下，給予或不給予通知或代通知金而終止合約。\n(2) 就本部而言，僱員在以下情況不得視為遭僱主解僱─\n(a)\n僱員的僱傭合約已予續訂，或已以新僱傭合約獲同一僱主再次聘用；及\n(b)\n續約或再次聘用是在緊接前一合約所訂的僱傭終結時生效。\n(3)\n為使第(2)款適用於在休息日或假日終結僱傭的合約，如續約或再次聘用是在休息日或假日翌日生效或該翌日之前生效，則續約或再次聘用須視為是在緊接前一合約所訂的僱傭終結時生效。”\n遭解僱\n30.\n本席在仔細考慮所有證據後，認為五位申索人是在\n第31D(1)(b)條\n的情況下遭被告公司解僱，也即是他們是在第三份合約受僱一段固定時期，而在該時期屆滿後未有以同一合約續約，而本席認為該段固定時期是2011年5月1日至2011年12月31日。\n31.\n五位申索人與被告公司在2011年5月1日起的僱傭關係是以他們各自簽訂的第三份合約為依歸。該五份合約均為規定格式及條款的政府標準合約, 它們只在薪金金額、工作時間、工作時數有異。\n32.\n本席在理解該五份合約時，已顧及其背後的事實主體。被告公司是因為簽訂了食環署合約，故聘用五位申索人為該合約提供服務，也因為食環署合約的明文規定，它在聘用五人時，必須與他們簽訂政府的「標準僱傭合約」。\n33.\n事實上，自2005年4月起, 政府就以用非技術工人為主的外判服務合約，規定有關服務合約承辦商必須與其聘用的非技術工人簽訂「標準僱傭合約」，以確保由承辦商聘用為該服務合約提供服務的僱員的工作地點、工作時數、工資的計算及數額須依從該服務合約相關條文規範，目的在於為向政府提供服務但由服務承判商聘用的非技術工人提供清晰及穩定的工作地點及時間。外判服務合約更設有扣分制度懲罰違規的承判商。\n34.\n第三份合約便是因應\n《最低工資條例》\n自2011年5月1日起實施所修訂的「標準僱傭合約」的版本。\n35.\n就該五份合約內容而言, 與本案相關的條文包括 ：-\n“適用於政府服務合約承辦商\n與其僱員的標準僱傭合約(註一)\n政府服務合約編號：FEHDSC/63/09 (註二)\n……\n一. 本僱傭合約由2011年5月1日起生效。\n二. 僱員由僱主聘用為清潔服務員(職位名稱) 。工作地點是灣仔區街道潔淨服務(限於政府服務合約編號：(註2) FEHDSC/63/09 的範圍) 。 如有需要, 僱主可在香港島區域(註3)內作緊急或短暫及有限度的調配(註2) 。\n三. (甲) 僱員每星期工作6天, 每天的工作時間：(註4)\n[\n列明具體的上下班時間\n]……\n在特殊情況下，因應有關採購部門的要求，僱主可將上述工作時間作出適當調動，但有關調動祇屬短暫性，亦不會影響僱員原本每天的工作時數。\n……\n六. 根據本僱傭合約第三(甲)條款所訂的工作時間工作，僱員應收取:\n(甲) 每月工資為港幣[\n列明具體的工資數字\n]……\n……\n廿一. 對本僱傭合約任何條款(包括附表)作出的變更、修改、取消或增訂，不得終絕或減少本僱傭合約賦予僱員的任何權利、利益或保障，並由僱主及僱員簽署修訂，否則均屬無效；而僱主亦須將僱傭雙方已簽署的修訂副本交給僱員保存。”\n[註解:上述斜字部份為本席附加的字句]\n36.\n第三份合約的第廿二及廿三條條文更列明僱員與被告公司協議向食環署提供第三份合約副本、工資記錄、值勤記錄及其他有關資料以作記錄及監察被告公司履行食環署合約內有關僱傭規定之用。\n37.\n由此可見，第二條文嚴格規限了工作地點必然是需要為食環署合約提供潔淨服務的地點，也即是申索人只可在食環署合約的範圍工作,\n38.\n雖然第二條文同時提供了調派條款，只是，該條款是一條相當嚴謹的條款，被告公司僅僅可以在有需要時，在香港島區域內作緊急或短暫及有限度的調配。換言之，被告公司即使在它有實際需要時，也不可以長時間更遑論永久地調派申索人往食環署合約上列明的清潔地點以外的其他地方工作。\n39.\n故此, 單從第二條文可見，第三份合約的存續是緊繫於食環署合約的固定期限。而食環署合約的第二部份的1(a)段[證物D-238第34頁]列明了食環署合約的固定期限為2010年1月1日至2011年12月31日。由是，第三份合約的條款必定默示了雙方的僱傭合約至2011年12月31日告終這隱含條款。\n40.\n還有，第三份合約的其他條文同樣顯示了這隱含條款的存在。\n41.\n首先，合約的標題已清晰道明了這是被告公司作為食環署合約的承辦商與其僱員簽訂的僱傭合約。還有，合約中的主要條款包括工作時間、時數及工資的條款，均受食環署合約的相關條文規範。另外，合約更明文禁止變更、修改、取消或增訂，不得終絕或減少該合約賦予僱員的任何權利。雙方也明文協議讓食環署監管合約的履行情況。\n42.\n誠然，這些條文在食環署合約終結後根本不能予以履行，因此，第三份合約必然隱含了食環署合約的屆滿日便是第三份合約的終結日這條款。 由是，第三份合約必然在2011年12月31日告終。\n43.\n因此，根據五位申索人各自簽署的第三份合約，五人受僱的固定時期至2011年12月31日屆滿，而在其屆滿後被告公司因為在新一輪的投標程序中落選，所以不能與五人以同一合約續約，是故，五人的情況切合\n《僱傭條例》\n第 31B(2) 及\n第31D(1)(b)條\n的條件，也因此可依據\n第31B(1)(a) 條\n視為遭僱主因裁員而解僱，被告公司必須給付遣散費。\n44.\n另一方面，即使假設上述的隱含條款並不存在，也即是第三份合約並沒有隨着食環署合約在2011年12月31日屆滿而告終，被告公司始終不能履行第三份合約的第二條款。\n45.\n原因是既然食環署合約在2011年12月31日屆滿而告終，被告公司不可能再提供食環署合約上的清潔地點予五位申索人工作，可是，如上所述，第二條款的調派條款根本不容許被告公司長時間或永久地調派申索人往其他地方工作。\n46.\n故此，被告公司在上述第一次派員分別接觸五位申索人，查詢他們對於被告公司打算調派他們往其他地方工作的意向時，他們是有權拒絕。更何況五人在受聘多年來，一直在同一地點工作。\n47.\n及至12月29日，當被告公司向他們發出書面調配通知命令他們於2012年1月1日到指明的新工作地點上班，而該等地點全非食環署合約上的清潔地點時，它是單方面改動了雙方已經訂立的重要的僱傭條件。\n48.\n還有，第三份合約的第三條條款清晰列明被告公司只可在特殊情況下，因應食環署的要求，才可將合約上列明的工作時間作出適當調動，而所有調動祇限於短暫性，不能影響原本訂明的每天工作時數。由是，從調派通知可見，被告公司也單方面改動了五人的工作時間甚或時數，也是單方面改動了另一個重要的僱傭條件。\n49.\n是故，五位申索人是有權如他們當日的做法在當場即時拒絕調派，以及沒有在2012年1月1日到新工作地點上班。他們此舉無疑是行使他們面對僱主違約時終止該僱傭合約的權利。\n50.\n這權利正好在\nWestern Excavating (ECC) Ltd v Sharp\n[1978]\n1 QB 761\n一案中闡明，也就是變相解僱的法律原則。意謂若僱主嚴重違反與僱員的合約，而明示或暗示他不再受該僱傭合約內的基本條款約束，僱員則可以自行解除進一步履行該僱傭合約內的責任。當僱員作出這抉擇，他是基於僱主的行為而終止該僱傭合約。僱主的違約行為便構成變相解僱。僱員可以即時離職而無須給予僱主通知；他亦可以給予僱主通知或於通知期屆滿時離職。在這個法律原則下，雙方的僱傭合約是在2011年12月31日後五位申索人因為被告公司嚴重違約而終止雙方的僱傭合約，被告公司不但無權在2012年1月6日以他們沒有到新工作地點上班而指控他們自動離職，也無權依據\n《僱傭條例》\n第9條\n即時解僱他們，也就不能依據\n第31C(1)條\n免除支付遣散費的責任。相反，根據\n第31D(1)(c)條\n，五人可被視為遭僱主解僱, 被告公司須向其支付遣散費。\n51.\n雖然被告公司曾提出五位申索人受公司印制的員工守則中的無限制調派條款規管，但是，根本無實質證據證明被告公司曾派發該守則予五人或曾通知他們有關內容，而且，這個聲稱也只在審訊中段才突然提出，本席不相信被告公司曾向五位申索人提及這條款。\n52.\n再者，第三份合約內既有第二條清晰的調派條款，再結合合約第廿一條對合約條款變更的嚴格限制，第三份合約不可能容納該員工守則中的無限制調配條款，或任何將申索人永久調派往其他工作地點的隱含條款 (見\nWong Yuk Ling v East East Food Products Limited,\nHCLA95/2002)。\n約滿回條\n53.\n另一方面，本席也仔細地考慮了被告公司在第一次與五位申索人就着食環署合約完約而接觸，以及第三、四、七及九申索人簽署了約滿回條對此申索的影響。\n54.\n五位申索人的整體案情是被告公司約在中下旬派員在他們各自的工作時間期間到他們各自的工作地點(第三及四申索人約在12月15日後；第七申索人在12月23或24日；第九申索人在12月26日；第十一申索人在12月28日)，告訴他們食環署合約將於12月31日終止，徵詢他們是否願意在其後被調派往其他地方工作，但具體地方、時間及調派安排並無說明，五人皆即時拒絕。\n55.\n第三、四、七及九申索人均指稱當時對方有向他們展示一張文件，但他們看不懂，對方也沒有講解內容，他們簽署時，根本不知當中內容。第四申索人稱他是因為對方明言簽了他手上的文件，便會獲盡早發薪及支付年假薪酬；第七申索人稱他是因為對方指那純粹是約滿通知書，故按指示簽署。另外二人則指是在不明所以的情況下被安排簽署，四人聲言他們不知道不願意調派便等同決定自動辭職，也從未表示辭職。\n56.\n另一方面，被告公司除了安排了聲稱自己在十二月中，分別與第三及第九申索人面談並簽收約滿回條的公司代表出庭作供外，並沒有安排與另外三名申索人就約滿回條溝通的員工出庭作供。\n57.\n公司代表聲稱她分別與第三及第九申索人面談時，雖然未有具體調派安排及地點，但有把約滿回條的內容包括兩項選擇讀出，並讓他們選擇，並告訴他們此舉的目的是先徵詢他們的意願，再進行下一步的安排。她在當時得悉二人均不願被調派往其他地方工作後，替他們剔取第二項選擇，再讓他們簽署。她指她更曾向第九申索人說，他不依被告公司調派，等同離職。\n58.\n另外，在盤問過程中，王淑燕女士最終承認並無直接與五人溝通，也不知同事與五人的溝通情况。只稱在12月16日獲上司指示，帶同約滿回條，在12月20-21日往各食環署清潔站頭，通知未服務滿兩年的員工離職日期；另在12月23日後通知服務超越兩年的員工，徵詢他們就派調往其他地方工作的意願。\n59.\n本席在仔細考慮所有證據後，包括所有證人供詞、証物，以及各證人在庭上作供時的內容及神態，和所有相關的背景因素，認為被告公司的證人，皆非誠實可靠的證人，她們的證言及供詞矛盾之處甚多，也與當日具體情況殊不脗合。她們作供時更多番迴避，不斷轉變立場，其證供不可信。\n60.\n相反，雖然四位申索人的庭上證言及書面供詞有不同之處，但是，考慮到四人年紀老邁，教育程度偏低，就本席在審訊過程中的觀察，他們的聽力、理解能力及表達能力明顯不高，他們的供詞非由專業人士代筆，出現詞不達意的情況，誠可理解。然而，當他們作供時，只要給予清晰的提問，讓他們真正理解問題，以及給予他們足夠時間整理思緒，他們最終都能清晰交代事件的關鍵細節。加上,他們的證供與他們個人的情况及客觀情况脗合，本席信納他們的證供。\n61.\n相反，本席不信納公司代表曾與第三及第九申索人面談並簽收約滿回條。理由是她這項聲稱不但從沒在其多份供詞中提及，也竟然沒有在多次提訊及兩日審訊中作出。更令人難以置信的是她在第三申索人作供時，也不提及並向他加以質詢。她也不能合理地解釋何以她一直認不出第三及第九申索人的容貌。此外，她根本連基本情況諸如日期、時間也說不出，在場人士舉動也出現多個版本，尤其事隔只有兩個多月，以她年青專業的背景，理應記憶猶新。\n62.\n再者，在相互比對她聲稱是她書寫的兩份約滿回條上的字跡 [證物 D-208(1) 及 D-208(7)]，再比對她在庭上書寫[證物 D-210 及 D-213(1)] 及她其他文件的字跡，她顯然在說謊。\n63.\n因此，被告公司根本無實質證據爭議五名申索人在當時與被告公司派來的員工溝通的說法。\n64.\n還有，再細閱回條內容，有關條文如下:\n“[ ]本人願意由\n2012 年 01 月 01\n日起調往漁灣邨、香港海防博物館、置富花園或\n( )\n作同一性質的工作。由即日至調職期間，如本人改變決定，不打算到\n工作，則作自動辭職論，須給予公司 7 天的通知期或代通知金以終止僱傭合約。\n[ ]基於個人理由，本人不願意調往其他地盤工作，並決定自動辭職，最後工作日為\n年\n月\n日。\n*請將不適用者刪去。\n*請在上述適當的空格內填上“ ü ”。”\n65.\n無可置疑，回條只提供了兩項選擇供員工揀選--願意調往其他地盤工作，或者不願意調派，便是決定自動辭職，並無其他選擇，故此，回條並不能反映當時簽署者的真正意願的可信性甚高，也切合了四位申索人指稱當時只表示不願意調派，卻從無表示辭職的説法。\n66.\n再考慮到四人的年紀、學歷及他們各自簽署的約滿回條上的字跡，本席信纳他們的説法，他們只在回條上簽署，其他部份是由被告公司的員工填寫。他們看不懂，没有人給予講解，也不知道不願意調派，便是決定自動辭職。\n67.\n故此，在仔細考慮約滿回條的正確詮釋及四位申索人並不是在完全知情及明瞭該回條的效應的情況下簽署，本席裁決四位申索人雖然簽署了約滿回條，他們實際上並無決定或表示自動辭職，該約滿回條也不可終止雙方的僱傭關係。\n68.\n事實上，從被告公司的案情及其間雙方的行為更進一步印證了雙方並不視四位申索人簽署了約滿回條便是自動辭職這事實。\n69.\n首先，即使被告公司自己的說法，它當時安排員工往各站頭，目的是通知清潔員工潔淨合約將於12月31日終結，只想初步了解各員工對調派的意願，以決定下一步行動，所以具體的調派安排及地點也未確定。\n70.\n再者，雙方之後根本無就自願辭職作出任何行動，被告公司不但没有作出任何接受四人辭職的相應行動，相反，它在12月29日向五名申索人發出調配通知，要求他們必須在2012年1月1日往新工作地點工作，否則視為無故缺席論。\n71.\n及後在2012年1月6日向各申索人郵寄通知書，通知各人因為他們没有在2012年1月1日及之後往新工作地點上班，故被視為自動離職而終止雙方合約。由此可見，被告公司和申索人從來不視四位申索人簽署該回條是自動辭職，被告公司自始至終都清楚知道申索人並没有表示辭職。\n遣散費權利的免除\n72.\n另一方面，本席亦考慮了被告公司作出調派員工往其他地方工作的安排，會否讓它可依據\n《僱傭條例》\n第31C條\n免除它支付遣散費的責任。由於被告公司要求改動受僱地點及時間，以及大部份第三份合約的條款都不能保留，本席只需要考慮\n第31C(3)條\n的適用性，也即是被告公司有沒有在僱傭合約終止之前不少於七天，以書面向五位申索人要約續約或以新合約再次聘用，而該要約對五人而言，構成適合僱傭的要約，也不遜於原來的合約，如五人不合理地拒絕該項要求，則喪失獲發遣散費的權利。\n73.\n只是，綜觀被告公司的所有安排，並没有符合該條文的條件。在本案件中，被告公司只曾就着2011年12月31日之後的安排，與五名申索人聯絡兩次。當中只有第三、四及第七申索人在首次的接觸時，符合條文規定僱傭合約終止或合約期屆滿之前不少於七天的規定。\n74.\n再者，在第一次聯絡過程中，被告公司只出示了約滿回條，可是在回條裡面，並無訂明任何新合約的條件，連基本僱傭條件諸如工時、薪金、具體工作地點、假期完全欠奉，它不可能符合條例要求。\n75.\n至於第二次聯絡便是12月29日，不單在時間上已超越七天規定，唯一的文件調配通知，上面只列有工作地點及時間，並無說明薪金或其他基本僱傭條件。\n76.\n還有，各申索人的工時，皆有變動及增減，第七及第十一申索人的工作時間更加是大幅改動數小時之多，這必然如申索人所言影響他們其他的兼職工作及家中事務的安排，再加上五位申索人過往一直在同一地點工作，他們全部已達高齡，教育程度偏低，甚至目不識丁，被調往全新工作地點，自然有一定因難。\n77.\n加上，被告公司自始至終皆無說明薪金數目，雖然公司代表指稱，她曾在12月28日勞工處會議中提及薪金將不低於原合約及法定最低工資，只是四名申索人根本沒有出席當日會議，再者，根本沒有證據顯示公司代表在發出該言論時，唯一有出席12月28日會議其中一段時間的第九申索人在場。無論如何，即使假設五名申索人當時在場，只是被告公司既然改動了他們的工作時間、工時、地點，單單概括地聲稱不低於原合約及法定最低工資，不能證明新的僱傭條件不遜於原合約。凡此種種，也都顯示了五人並非無理地拒絕被告公司的要求。\n78.\n綜上所述，被告公司的安排，並不符合該法例條文的要件，五名申索人有權在12月29日拒絕被告公司的要求，被告公司也不能以曾經為五名申索人安排新工作，而解除其支付遣散費的責任。\n為新承辦服務\n商服務\n79.\n另外，雖然被告公司嘗試爭議，申索人在2012年1月1日起已經由取替被告公司成為食環署新承判商聘用為清潔工人，繼續在他們各自的舊崗位工作。只是，被告公司承認，直至是次審訊中段，它根本不知道五人是否有獲該公司聘用。它也承認五人在其公司任職期間，根本從來沒有表示他們將會轉職該新承判商。\n80.\n另一方面，五名申索人表示他們一直等待被告公司的確實安排，直至無果，才決定在2012年1月1日為新承判商服務，雙方的僱傭合約亦只在上班之後才正式訂立書面合約。由是，被告公司根本不可能因為申索人最後在2012年1月1日轉職其他公司，而免除其支付遣散費的責任。\n裁決\n81.\n本席已考慮了所有證據以及被告公司的所有抗辯理據及說法，認為無一成立。五名申索人與被告公司的僱傭合約，已隨着食環署合約在2011年12月31日屆滿而終結，雙方並無續約或簽訂新合約，故必須向申索人支付遺散費。另一方面，即使假設雙方的僱傭合約並無因食環署合約終結而告終，但被告公司的調派要求，違反了雙方僱傭合約基本條文，故此，申索人有權在12月29日拒絕調派指令，並在2012年1月1日拒絕往新工作地點工作而要求支付遣散費。\n82.\n故此，依據\n《僱傭條例》\n第31D條\n，五名申索人皆因裁員而遭解僱，故五名申索人(A)項:遣散費申索得直，被告公司須即時支付: 第三申索人港幣13,412.05元；第四申索人港幣3,003.42元；第七申索人港幣21,848元；第九申索人港幣13,827.86元；第十一申索人港幣13,826.82元。\n83.\n因為本席已裁決五人的遣散費追討得直，故第二項有關終止僱傭金的追討被撤銷。\n84.\n上述判決款額的利息根據\n《勞資審裁處條例》\n第25章\n第39(3)條\n計算。\n訟費\n85.\n本席已考慮了雙方的訟費陳詞，訟費判決的基本原則是訟費應以訴訟結果而定，本案並不存在任何特殊情況需要偏離此原則。依據\n《勞資審裁處條例》\n第28條\n，訟費包括與訟者及其證人出庭聆訊而需招致的合理開支及所損失的工資或薪金，考慮了訟費的合理性，本案之背景因素，故命令被告公司即時支付:- 第三申索人港幣197元；第四申索人港幣1,020元； 第七申索人港幣180元；第九申索人港幣290元；第十一申索人港幣199元。\n86.\n此款額的利息也依據\n《勞資審裁處條例》\n第39(3)條\n計算，由被告公司支付。\n勞資審裁處審裁官\n（ 林美施 ）", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2012/LBTC000595_2012.doc", + "file_name": "LBTC000595_2012.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkldt/2002_HKLDT_156/LDBM000054B_2002_abp_fallback.txt b/zh_cases_hkldt/2002_HKLDT_156/LDBM000054B_2002_abp_fallback.txt new file mode 100644 index 0000000..1abb74c --- /dev/null +++ b/zh_cases_hkldt/2002_HKLDT_156/LDBM000054B_2002_abp_fallback.txt @@ -0,0 +1,6 @@ +LDBM 54 OF 2002 香港特別行政區 土地審裁處  建築物管理申請編號2002年第54號 Chan Yip Keung and Leung Shiu Kuen 申請人  對   The Incorporated Owners of Belvedere Garden Phase II 第一答辯人  Chiang Shu To (蔣書濤) 第二答辯人   主審法官 ：周兆熊法官 宣判日期 ：2002年9月5日 ______________ 判 決 書 ______________ 1. 2002年7月10日，本席頒令將針對第二答辯人的所有申請剔除，並命令就該傳票申請涉及的訟費的爭議，由助理司法常務官另訂 日期聆訊。助理司法常務官將聆訊日期定於2002年8月26日；在該日期進行的聆訊是申請人與第二答辯人法律程序的終結。 2． 2002年8月26日，本席審理訟費的爭議。代表第二答辯人的 +Maurice Ng大律師要求本席判令申請人支付第二答辯人上述申請的訟費，但該訟費須按彌償基準而予以評定。他引用下述載於Hong Kong Civil Procedure 2002年版第1冊第896頁的案例以支持其說法 ：—— “The Court of Appeal in Choy Yee Chun (The representative of the estate of Chan Pui Yiu) v. Bond Star Development Ltd [H. K. L. R. D.] 1327 reviewed the cases and summarized the law as follows. A taxation of the successful party’s costs on an indemnity basis could properly be ordered where the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive, or in an oppressive manner.” 3． 上述案例的裁決是否適用於本案？這要視乎申請通知書披露的事實以及所有有關的証據。申請通知書披露下列與第二答辯人有關的事實 ：—— “9. On 27th February 2002, a total of 160 letters, representing 5% of ownership in the Building, duly signed by each owner thereof, were submitted to the 2nd Respondent, as the then chairman of the 3rd Management Committee, personally whereby a request was duly made to him to convene a general meeting of the Owners Incorporated for the purpose of electing a new 4th Management Committee; 10. On 13th March 2002, the 2nd Respondent tendered his resignation both as chairman and ordinary member of the 3rd Management Committee; 11. Up to the date hereof, neither the 1st Respondent nor any of the remaining members of the 3rd Management Committee make any response to the request mentioned in paragraph 9 above.” 4． 本席將申請人針對第二答辯人的申請剔除，因為該申請並無法律和事實的基礎作為申請的根據。簡單來說，該申請並無披露合理的訴因，故此它須被剔除。 + 5． 第二答辯人提出一份日期為2002年5月13日的誓章；在這份誓章中，他指出Chan Yip Keung缺乏提出本案申請的法律地位。 6． 本案所有針對第二答辯人的事實和証據，並不具有Choy Yee Chun一案所述明的因素，因此以彌償基準作為計算申請人支付第二答辯人訟費的基礎是不適當的。 7. 2002年6月17日，申請人（Chan Yip Keung）提出再修訂申請通知書的申請。本席在2002年6月21日審理該申請。Maurice Ng大律師反對是項申請，因為他認為申請人在該階段提出該申請是不適當 的。經聆訊雙方的陳詞後，本席批准是項申請，故此第二答辯人須支付申請人該申請聆訊的訟費。 8. 本席頒佈下述的命令 ：—— 申請人（Chan Yip Keung）須支付予第二答辯人於2002年6月21日再修訂申請通知書而引致產生的訟費（如有的 話），但第二答辯人須支付予申請人（Chan Yip Keung）該申請聆訊的訟費（包括聘用大律師的費用）； 兩名申請人須支付第二答辯人剔除申請聆訊的訟費（包括第二答辯人聘用大律師的費用）； 2002年8月26日的訟費聆訊 ：就有關訟費是否應以彌償基準作為評定訟費基礎的聆訊部份，第二答辯人須支付兩名申請人該部份的訟費（包括聘用大律師的費用），就餘下的聆訊部份，兩名申請人須支付第二答辯人該部份的訟 +費（包括聘用大律師的費用）； 兩名申請人須支付予第二答辯人原訴申請（Originating Application）的訟費； 如與訟雙方未能議定上述所有訟費的款額，則該等款額由法庭審定。 周兆熊法官 土地審裁處 兩位申請人：由葉楊福蘭楊福祺律師行代表。 第二答辯人：由李周彭陳律師行代表。 + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/zh_cases_hkldt/2002_HKLDT_156/case.json b/zh_cases_hkldt/2002_HKLDT_156/case.json new file mode 100644 index 0000000..e54c642 --- /dev/null +++ b/zh_cases_hkldt/2002_HKLDT_156/case.json @@ -0,0 +1,26 @@ +{ + "Date": "5 Sep, 2002", + "Action No.": "LDBM54/2002", + "Neutral Cit.": "[2002] HKLDT 156", + "case_title": "CHAN YIP KEUNG AND ANOTHER 訴 THE INCORPORATED OWNERS OF BELVEDERE GARDEN PHASE II AND ANOTHER", + "page_title": "CHAN YIP KEUNG AND ANOTHER 訴 THE INCORPORATED OWNERS OF BELVEDERE GARDEN PHASE II AND ANOTHER | [2002] HKLDT 156 | HKLII", + "case_history": [ + { + "name": "LDBM54/2002", + "link": "https://www.hklii.hk/tc/appealhistory/LDBM/2002/54" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkldt/2002/156", + "neutral_cit": "[2002] HKLDT 156", + "court_code": "HKLDT", + "content": "LDBM000054B/2002 Chan Yip Keung and Another 訴 The Incorporated Owners of Belvedere Garden Phase II and Another\nLDBM000054B/2002\nLDBM 54 OF 2002\n香港特別行政區\n土地審裁處\n建築物管理申請編號2002年第54號\nChan Yip Keung and Leung Shiu Kuen\n申請人\n對\nThe Incorporated Owners of Belvedere Garden Phase II\n第一答辯人\nChiang Shu To (蔣書濤)\n第二答辯人\n主審法官：周兆熊法官\n宣判日期：2002年9月5日\n______________\n判 決 書\n______________\n1.\n2002年7月10日，本席頒令將針對第二答辯人的所有申請剔除，並命令就該傳票申請涉及的訟費的爭議，由助理司法常務官另訂 日期聆訊。助理司法常務官將聆訊日期定於2002年8月26日；在該日期進行的聆訊是申請人與第二答辯人法律程序的終結。\n2．\n2002年8月26日，本席審理訟費的爭議。代表第二答辯人的Maurice Ng大律師要求本席判令申請人支付第二答辯人上述申請的訟費，但該訟費須按彌償基準而予以評定。他引用下述載於\nHong Kong Civil Procedure 2002\n年版第1冊第896頁的案例以支持其說法 ：\n\"The Court of Appeal in Choy Yee Chun (The representative of the estate of Chan Pui Yiu) v. Bond Star Development Ltd [H. K. L. R. D.] 1327 reviewed the cases and summarized the law as follows. A taxation of the successful party's costs on an indemnity basis could properly be ordered where the proceedings were scandalous or vexatious, or had been initiated or prosecuted maliciously, or for an ulterior motive, or in an oppressive manner.\"\n3．\n上述案例的裁決是否適用於本案？這要視乎申請通知書披露的事實以及所有有關的証據。申請通知書披露下列與第二答辯人有關的事實 ：\n\"9. On 27th February 2002, a total of 160 letters, representing 5% of ownership in the Building, duly signed by each owner thereof, were submitted to the 2nd Respondent, as the then chairman of the 3rd Management Committee, personally whereby a request was duly made to him to convene a general meeting of the Owners Incorporated for the purpose of electing a new 4th Management Committee;\n10. On 13th March 2002, the 2nd Respondent tendered his resignation both as chairman and ordinary member of the 3rd Management Committee;\n11. Up to the date hereof, neither the 1st Respondent nor any of the remaining members of the 3rd Management Committee make any response to the request mentioned in paragraph 9 above.\"\n4．\n本席將申請人針對第二答辯人的申請剔除，因為該申請並無法律和事實的基礎作為申請的根據。簡單來說，該申請並無披露合理的訴因，故此它須被剔除。\n5．\n第二答辯人提出一份日期為2002年5月13日的誓章；在這份誓章中，他指出Chan Yip Keung缺乏提出本案申請的法律地位。\n6．\n本案所有針對第二答辯人的事實和証據，並不具有Choy Yee Chun一案所述明的因素，因此以彌償基準作為計算申請人支付第二答辯人訟費的基礎是不適當的。\n7.\n2002年6月17日，申請人（Chan Yip Keung）提出再修訂申請通知書的申請。本席在2002年6月21日審理該申請。Maurice Ng大律師反對是項申請，因為他認為申請人在該階段提出該申請是不適當 的。經聆訊雙方的陳詞後，本席批准是項申請，故此第二答辯人須支付申請人該申請聆訊的訟費。\n8.\n本席頒佈下述的命令 ：\n1. 申請人（Chan Yip Keung）須支付予第二答辯人於2002年6月21日再修訂申請通知書而引致產生的訟費（如有的 話），但第二答辯人須支付予申請人（Chan Yip Keung）該申請聆訊的訟費（包括聘用大律師的費用）；\n2. 兩名申請人須支付第二答辯人剔除申請聆訊的訟費（包括第二答辯人聘用大律師的費用）；\n3. 2002年8月26日的訟費聆訊 ：就有關訟費是否應以彌償基準作為評定訟費基礎的聆訊部份，第二答辯人須支付兩名申請人該部份的訟費（包括聘用大律師的費用），就餘下的聆訊部份，兩名申請人須支付第二答辯人該部份的訟費（包括聘用大律師的費用）；\n4. 兩名申請人須支付予第二答辯人原訴申請（Originating Application）的訟費；\n5. 如與訟雙方未能議定上述所有訟費的款額，則該等款額由法庭審定。\n周兆熊法官\n土地審裁處\n兩位申請人：由葉楊福蘭楊福祺律師行代表。\n第二答辯人：由李周彭陳律師行代表。", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2002/LDBM000054B_2002.doc", + "file_name": "LDBM000054B_2002.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkldt/2004_HKLDT_144/LDBM000312_2003.txt b/zh_cases_hkldt/2004_HKLDT_144/LDBM000312_2003.txt new file mode 100644 index 0000000..6376c4b --- /dev/null +++ b/zh_cases_hkldt/2004_HKLDT_144/LDBM000312_2003.txt @@ -0,0 +1,60 @@ +LDBM 312/2003 + +香港特別行政區 +土地審裁處 +建築物管理申請編號2003年第312號 + + + +_______________ +判 案 書 +_______________ + +申請人是九龍佐敦道庇利金街26號至34號大達大廈的業主立案法團；答辯人是該大廈5字樓A室及C室的業主。申請人的申請是要求土地審裁處命令答辯人就上述兩個單位分別繳交電力維修費4,984元及電梯維修費1,134元，總款額為12,236元 (4,984元 x 2 + 1,134元 x 2)。 + +2002年1月18日，法團舉行全體業主大會，通過電力維修及電梯內籠更換工程的決議。前者所需的金額為211,000元，而後者的金額為48,000元。 +對該兩款額的攤分, 大廈公契的第4(f)(h)及(i)條是適用的條文。 +“(f) The following costs charges and expenses shall be borne and paid by the owners of the said building in proportion to the number of unit or units in the said premises for the time being owned by them, namely:- +…………………………. +(iv) The cost of repairing, renewing, maintaining, cleansing, painting or decorating the building or any part or parts thereof and ………… cables, wires or services therein ……….. +…………………………. +(vi) The cost of operating maintaining repairing servicing replacing and renewing all the lifts in the building. +…………………………. +(h) Each owner shall pay to the Manager the following sums for the management of the said Building including the payment by way of remuneration to the Manager:- + + MONTHLY SUM TO RE CONTRIBUTED + +(i) If the total contributions payable to the Manager by the owners of the said building as aforesaid shall be insufficient to cover all or any of the said costs charges and expenses then such owners shall make further contributions towards such expenses in the shares as above provided.” + +上述兩項工程是屬於第4(f)條所涵蓋的工程，因此業主須支付的分攤款額須以第4(h)條的基準計算。 + +由地下至10樓的總收費(monthly charges)為2,540元，計算如下: +根據上述計算，答辯人須為5樓A室及C室繳付12,236元，計算如下：— + +答辯人須繳付的費用是12,236元[(1,122.8元+4,984.25元)x2]。 + +2002年7月8日，申請人致函答辯人，要求他為5A及5C室支付上述費用。2002年12月5日，申請人向答辯人發出緊急通告，要求他支付電力及電梯維修分攤費。2002年12月28日，代表申請人的戴恩律師行致函答辯人，要求他繳付上述的維修費。答辯人沒有繳付該等費用。 + +答辯人提出在反對通知書指申請人沒有預先通知每戶要付多少款項, 這是不正確的答辯，因為上述的函件已知會他要支付的款額 。在答辯人沒有支付該費用後，申請人遂於2003年2月28日在小額錢債審裁處向答辯人提出訴訟，其後該案被移交至土地審裁處。 + +答辯人指一樓有關一樓需付的管理費不公平，但支付費用的基礎是以公契的方法計算，《建築物管理條例》第45(3)條有以下的規定:－ + +“(3) 除本條例條文另有規定外，本條或附表10所述一切，均不得解釋為將民事司法管轄權以外的任何司法管轄權或任何發出下述命令的司法管轄權歸於審裁處，該命令一旦發出，其效力會使任何業主或佔用人所享有的任何合約性權利或所有權權利，或另於土地註冊處註冊的文書包括公契（如有的話）的條款及條文所提述的任何合約上的權利或所有權權利，完全或部分作廢，或被否定或實質上改變。” + + 本席無權裁決公契的有關條文是否公平。 + +公契第45(h)條內1樓的每月管理費原為45元，後改為180元,與訟雙方都不知道該修訂是何時作出的，無論如何，答辯人在反對通知書中並無指稱該修訂是無效的，因此維修分攤費須以這修訂的第4(h)條的規定計算。 + +本席裁定答辯人的答辯是無效的答辯。 + +本席命令答辯人於14天內向申請人繳交12,236元的維修費。 + +訟費 +本席頒下臨時訟費的命令：答辯人須支付申請人本案的訟費以及在小額錢債審裁處進行的法律程序的訟費，但無須支付申請人聘用大律師的費用。如與訟雙方未能議定訟費的款額，該款額由法庭按區域法院訟費水平為基準而予以評定。如在14天內與訟任何一方不向本庭提出申請，前述的臨時訟費命令作實。 + + + 周兆熊法官 + 土地審裁處 + +申請人：由禤氏律師行代表。 +答辯人：親自應訊。 \ No newline at end of file diff --git a/zh_cases_hkldt/2004_HKLDT_144/case.json b/zh_cases_hkldt/2004_HKLDT_144/case.json new file mode 100644 index 0000000..91eb803 --- /dev/null +++ b/zh_cases_hkldt/2004_HKLDT_144/case.json @@ -0,0 +1,26 @@ +{ + "Date": "15 Mar, 2004", + "Action No.": "LDBM312/2003", + "Neutral Cit.": "[2004] HKLDT 144", + "case_title": "THE INCORPORATED OWNERS OF TAI TAT BUILDING 訴 LEUNG WAI SUM", + "page_title": "THE INCORPORATED OWNERS OF TAI TAT BUILDING 訴 LEUNG WAI SUM | [2004] HKLDT 144 | HKLII", + "case_history": [ + { + "name": "LDBM312/2003", + "link": "https://www.hklii.hk/tc/appealhistory/LDBM/2003/312" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkldt/2004/144", + "neutral_cit": "[2004] HKLDT 144", + "court_code": "HKLDT", + "content": "LDBM000312/2003 THE INCORPORATED OWNERS OF TAI TAT BUILDING 訴 LEUNG WAI SUM\nLDBM000312/2003\nLDBM 312/2003\n香港特別行政區\n土地審裁處\n建築物管理申請編號2003年第312號\nThe Incorporated Owners of Tai Tat Building\n申請人\n訴\nLeung Wai Sum\n答辯人\n主審法官: 周兆熊法官\n聆訊日期: 2004年3月8日\n判案日期: 2004年3月15日\n_______________\n判 案 書\n_______________\n1.\n申請人是九龍佐敦道庇利金街26號至34號大達大廈的業主立案法團；答辯人是該大廈5字樓A室及C室的業主。申請人的申請是要求土地審裁處命令答辯人就上述兩個單位分別繳交電力維修費4,984元及電梯維修費1,134元，總款額為12,236元 (4,984元 x 2 + 1,134元 x 2)。\n2.\n2002年1月18日，法團舉行全體業主大會，通過電力維修及電梯內籠更換工程的決議。前者所需的金額為211,000元，而後者的金額為48,000元。\n3.\n對該兩款額的攤分, 大廈公契的第4(f)(h)及(i)條是適用的條文。\n\"(f) The following costs charges and expenses shall be borne and paid by the owners of the said building in proportion to the number of unit or units in the said premises for the time being owned by them, namely:-\n...............................\n(iv) The cost of repairing, renewing, maintaining, cleansing, painting or decorating the building or any part or parts thereof and ............ cables, wires or services therein ...........\n...............................\n(vi) The cost of operating maintaining repairing servicing replacing and renewing all the lifts in the building.\n...............................\n(h) Each owner shall pay to the Manager the following sums for the management of the said Building including the payment by way of remuneration to the Manager:-\nMONTHLY SUM TO RE CONTRIBUTED\nFLOOR\nFLAT\nDEPOSIT\nMONTHLY CHARGES\nGround\n1\n$\n80.00\n$\n40.00\n2\n80.00\n40.00\n3\n80.00\n40.00\n4\n80.00\n40.00\n5\n80.00\n40.00\nFirst\nWhole\n$\n360.00\n$\n180.00\n$\n90.00\n$\n45.00\nSecond to Tenth\nA\n120.00\n60.00\nB\n120.00\n60.00\nC\n120.00\n60.00\nD\n120.00\n60.00\n(i) If the total contributions payable to the Manager by the owners of the said building as aforesaid shall be insufficient to cover all or any of the said costs charges and expenses then such owners shall make further contributions towards such expenses in the shares as above provided.\"\n4.\n上述兩項工程是屬於第4(f)條所涵蓋的工程，因此業主須支付的分攤款額須以第4(h)條的基準計算。\n5.\n由地下至10樓的總收費(monthly charges)為2,540元，計算如下:\n地下 40元 x 5\n=\n200元\n一樓\n=\n180元\n2至10樓(由A室至D室)\n2,160元(60 x 4 x 9)\n6.\n根據上述計算，答辯人須為5樓A室及C室繳付12,236元，計算如下：\nA室\n電力維修費用:\n48,000元\nx\n60\n________\n2540\n=\n1,133.8元\n電梯內籠更換工程:\n211,000元\nx\n60\n________\n2540\n=\n4,984.25元\nC室\n電力維修費用:\n48,000元\nx\n60\n________\n2540\n=\n1,133.8元\n電梯維修費用:\n211,000元\nx\n60\n________\n2540\n=\n4,984.25元\n7.\n答辯人須繳付的費用是12,236元[(1,122.8元+4,984.25元)x2]。\n8.\n2002年7月8日，申請人致函答辯人，要求他為5A及5C室支付上述費用。2002年12月5日，申請人向答辯人發出緊急通告，要求他支付電力及電梯維修分攤費。2002年12月28日，代表申請人的戴恩律師行致函答辯人，要求他繳付上述的維修費。答辯人沒有繳付該等費用。\n9.\n答辯人提出在反對通知書指申請人沒有預先通知每戶要付多少款項, 這是不正確的答辯，因為上述的函件已知會他要支付的款額 。在答辯人沒有支付該費用後，申請人遂於2003年2月28日在小額錢債審裁處向答辯人提出訴訟，其後該案被移交至土地審裁處。\n10.\n答辯人指一樓有關一樓需付的管理費不公平，但支付費用的基礎是以公契的方法計算，\n《建築物管理條例》\n第45(3)條\n有以下的規定:－\n\"(3) 除本條例條文另有規定外，本條或附表10所述一切，均不得解釋為將民事司法管轄權以外的任何司法管轄權或任何發出下述命令的司法管轄權歸於審裁處，該命令一旦發出，其效力會使任何業主或佔用人所享有的任何合約性權利或所有權權利，或另於土地註冊處註冊的文書包括公契（如有的話）的條款及條文所提述的任何合約上的權利或所有權權利，完全或部分作廢，或被否定或實質上改變。\"\n本席無權裁決公契的有關條文是否公平。\n11.\n公契\n第45(h)條\n內1樓的每月管理費原為45元，後改為180元,與訟雙方都不知道該修訂是何時作出的，無論如何，答辯人在反對通知書中並無指稱該修訂是無效的，因此維修分攤費須以這修訂的\n第4(h)條\n的規定計算。\n12.\n本席裁定答辯人的答辯是無效的答辯。\n13.\n本席命令答辯人於14天內向申請人繳交12,236元的維修費。\n訟費\n14.\n本席頒下臨時訟費的命令：答辯人須支付申請人本案的訟費以及在小額錢債審裁處進行的法律程序的訟費，但無須支付申請人聘用大律師的費用。如與訟雙方未能議定訟費的款額，該款額由法庭按區域法院訟費水平為基準而予以評定。如在14天內與訟任何一方不向本庭提出申請，前述的臨時訟費命令作實。\n周兆熊法官\n土地審裁處\n申請人：由禤氏律師行代表。\n答辯人：親自應訊。", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2003/LDBM000312_2003.doc", + "file_name": "LDBM000312_2003.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkldt/2011_HKLdT_28/LDPD000438M_2011.txt b/zh_cases_hkldt/2011_HKLdT_28/LDPD000438M_2011.txt new file mode 100644 index 0000000..45925f3 --- /dev/null +++ b/zh_cases_hkldt/2011_HKLdT_28/LDPD000438M_2011.txt @@ -0,0 +1,28 @@ +LDPD 438/2011 +香港特別行政區 +土地審裁處 +申請編號LDPD 2011年第438宗 +_______________ +_____________ + + +_______________ +勘 誤 +_______________ + + 現謹通知，就2011年5月17日頒下之判案書作出以下更正:- + +1. 第8頁第3行: +“蔡小姐”應為“葉小姐” + +2. 第8頁第5行: +“蔡小姐”應為“葉小姐” + + + + + + (陶博慧) +黃健棠暫委法官書記 + + diff --git a/zh_cases_hkldt/2011_HKLdT_28/LDPD000438_2011.txt b/zh_cases_hkldt/2011_HKLdT_28/LDPD000438_2011.txt new file mode 100644 index 0000000..de51a33 --- /dev/null +++ b/zh_cases_hkldt/2011_HKLdT_28/LDPD000438_2011.txt @@ -0,0 +1,131 @@ +LDPD 438/2011 +香港特別行政區 +土地審裁處 +申請編號LDPD 2011年第438宗 +_______________ +_____________ + +_______________ +判 案 理 由 書 +_______________ + + +引言 + +1. 申請人以欠租及非法分租理由，要求收回有關單位及追收欠款、訟費等等。 + + + + +背景 + +2. 2011年2月23日，申請人由其妹陳美鳳小姐 (“陳小姐”) 代表入稟本院，表示從2005年11月18日起至2007年11月17日，將荃灣油柑頭村54號地下 (“有關單位”) 租與答辯人，約滿後變作口頭月租租約，從2010年5月18日起每月租金加至4,800 元，但答辯人從2010年11月18日起便沒有繳交租金，另外，更違反租約將有關單位分租，因此要求收樓、追回欠款等等。 + +3. 答辯人提出反對。 + +首先，他質疑陳美鳳小姐沒有得到有關單位業主，即申請人陳 國強先生，授權出租、收租及入稟本案。 + +單位分租是陳小姐在2008年時同意的。 + +2010年12月時候，發現一名叫陳世偉的男子 (現知是申請人的姪兒) 利用有關單位借錢，事情已報警處理，另他亦在2011年1月14日入稟小額錢債審裁處，追討申請人及陳小姐從租約起計每月1,000 元“准陳世偉用地址的費用” ，合共50,000元。 + +(d) 他並沒有欠租，“按金數目由7,600 元 變為3,800元，陳美鳳和業主陳國強先生欺詐本人，金錢及違反口頭約定…”。 + +4. 案件安排在2011年3月28日，由葛倩兒暫委法官過堂，在與雙方代表討論案情後，葛法官指示各人在4月11日或之前存檔及派送證人陳述書、相關文件及錄音騰本。當天散庭後，雙方曾嘗試先解決交吉有關單位問題，但可惜因為退還按金等問題，結果還是要依靠法庭判決。 + +5. 2011年4月11日，雙方代表均存檔其證人陳述書。 + +6. 陳小姐說: + +(a) 她受兄長，即申請人，委託處理本案，並附上有關授權書。 +(b) 她從未有同意分租。 +(c) 陳世偉亦是她的姪兒，答辯人利用偷信事件藉詞不交租及入稟小額錢債審裁處要求賠償。 +(d) 現時按金仍維持7,600 元。 + +7. 至於葉先生則謂: + +(a) 陳小姐一直未有出示授權書，所以不能確定其身份。 +(b) 因為偷信事件，陳小姐才迫遷答辯人。 +(c) 陳小姐曾問他表示租約中只有一個月按3,800 元，只是後來才改口說回7,600元。 + +8. 2011年4月20日，本席收到葉先生來函，要求處理4項事宜，之後回覆說: + +“申請(1)至(3)，即取消陳美鳳代表資格、遞交銀行過數文件及不遞交騰本事宜，不能單方面以信件處理，它們將在2011年4月28日本案開審時，在聽取雙方意見後，再作決定。 + +另外，關於申請(4)，即“申請3名證人出庭”，根據法庭記錄，台端要求發出證人傳票的申請，分別在2011年4月15日及2011年4月19日被兩位司法常務官撤銷及拒絕，如閣下不滿，須按規定的程序跟進，不得以信件處理，至於應如何跟進，敬請尋求獨立法律意見及/或自行決定。” + +9. 2011年4月28日，雙方準時出席，代表依舊，本席與大家簡單講解審訊程序及要點，包括，本案的申索不包括以租約完畢為收樓理由，偷信事件或SCTC 2097/11等事宜都不應在是次審訊中爭論，之後案件正式開審。對之前葉先生提出的事宜，本席: + +(1) 在確認有關授權書後，批准陳小姐代表資格。 +(2) 容許葉先生即日遞交銀行過數文件。 +(3) 接受葉先生不遞交騰本的要求。 + +另外，關於(4)“申請3名證人出庭” 再沒有其他跟進。 + +10. 案件正式開審，除陳小姐及葉先生外，申請人亦要求傳召馮碧影小姐作證，在閲讀馮小姐即場書寫的陳述書後，本席考慮到她的供詞簡短，只得半頁文件，而且內容亦不直接觸及本案爭議要點，即欠租及分租事宜，因此亦准她作證，不過，一如所料，她的口供未有對本案誰勝誰負起決定性作用，就事實爭議方面，仍是要看兩位代表的證供、證據較為法院接受。 + +11. 在考慮他們兩人的證供及雙方遞交的所有文件，在多半屬實的原則下，本席接受以申請人的案情為事實的依歸。 + +12. 雙方就陳小姐有否同意分租一事口供衝突最大，答辯人在反對通知書上表示早在2008年時已同意，但陳小姐否認，只說是葉先生在2011年2月初才向她透露，之後，她亦隨即表示反對及從未同意過，在這方面，以陳小姐的案情較為可取。 + + 一般而言，按常理, 業主大多不願意租賃物業出現二房東、三房客等情況，因為會容易產生欠租、難以收樓的問題，這點亦可從雙方簽訂的2005年11月10日的租約以印證，當中的第二條條款正是常見的不得分租、轉租限制條款。 + + 首兩年梗約完畢後，陳小姐說雙方關係轉為月租形式，只是在 較後時間加租至4,300 元及4,800 元，這說法除較為合理外，亦有多年交租的紀錄可以證實；反之，答辯人在反對通知書上聲稱的“往後的續約型式為每2年死約，以保障業主…”較難令人理解及接受，當然，答辯人本身沒有出庭作證亦對其指稱不利，因為他未可以嘗試解釋及接受對方的盤問。 + +(c) 另外，呈堂的分租租約也有問題，申請人與答辯人只是月租關係，為何後者有權與其女朋友，即葉小姐，簽訂一份從2010年7月27日起至2012年8月26日的梗約，還有，分租租約上面註明按金個月共4,800 元，但同時文件中又出現另一2010年7月27日按金收據3,800元，本席在審訊中未有聽到任何解釋。 + +13. 另外，雙方就欠租事宜亦有爭拗，陳小姐最初入稟本案時指答辯人從2010年11月18日起欠租，之後在陳述書修正為2011年10月18日起，之後，在庭上再澄清部分答辯人付租紀錄，這方面受葉先生多次批評，不過，除否認欠租外，答辯人卻沒有一個正面的說法。 + +欠租其實乃簡單的事實，只要雙方耐心集齊有關資料，即付款及收款紀錄，詳細交對便可一清二楚，無須爭拗。 + +本案中，葉先生一直非常不滿陳小姐多年來未有發出正式租單給答辯人，所以表示對數有困難，無疑，陳小姐不否認她已多年沒發租單給答辯人，她解釋一則後者沒有遞交入數紙，而她亦有健康問題，姑勿論申請人是否必須給予租單，他們雙方似乎已多年來習慣這樣的安排。 + +本席同意葉先生說，申請人有著舉證責任，他須說服法庭在多半屬實的標準下，答辯人從何時開始欠交租金，那麼，身為答辯人又應怎樣？這點，本席認為應由他自行決定，他當然可以只讓申請人去證明有關事宜，如有關證據非常不濟，可能答辯人根本什麼也不須做，申請人亦未能達標；另外，答辯人當然亦可提交證據，即其付租紀錄，用以指出申請人資料的錯誤，這亦正是本席容許葉先生可在正式審訊日才提交銀行過數文件的原因。 + +(d) 在比較雙方收租與交租的紀錄，本席認為以陳小姐的相對理想，雖然已曾經修改，但亦同時表示陳小姐有用心翻查及核對，而且每次入數都有銀行紀錄支持；相反，葉先生在庭上交出的銀行文件，沒有任何分析，而他指出陳小姐的3項錯處，又剛好為她及早發覺，經已更正。 + +14. 至於按金數目的爭議，陳小姐已確認她是曾經說以為只有3,800 元，但事後她已經向葉先生道歉，並更正為7,600元，另外，葉先生其實為此事已報警多次，她亦已向警方詳細解釋，事情應已了結。在結案陳詞中，葉先生亦有對陳小姐的表現，包括按金數目、欠租數目，口供前後不一等等作出評語，認為不值相信；不過，本席卻另有看法，犯錯，人皆有之，若能坦白承認，應予尊重，而且經修正的事實，相對地也可說是較為可信，至於前後不一，以本席觀察，只是陳小姐對一些涉及法理的問題未能完全理解而已，例如，當陳小姐被盤問及為何不可分租，她指出在2005年11月15日租約相關條款，不過，在再被問及這租約是不是已經終止時，她便出現混亂的情況，其實這問題應這樣解構：雖然兩年梗約已經終止，雙方變為月租，但梗約上的其他條款，包括按金仍維持在7,600元及不可分租等等，一直仍然生效。 + +15. 至於葉先生的證供，本席無意批評其真實性，不過無可否認，他是在本案後期，即2010年尾或2011年初，當偷信事件發生後才較多參與事情的發展，他本身對欠租、分租事宜的認知相對較少及/或屬傳聞證供，所以亦較陳小姐的口供難令人信服。 + +16. 因此，就本案相關的事實爭議，簡單說；本席有以下裁定: 從2005年11月18日開始，申請人委託陳小姐將有關單位租給答辯人，初時尚算準租，兩年梗约完畢後，改為月租，只是在之後，數年分別加租至4,500 元及4,800元，按金維持原有7,600元；其餘條款不變，當時雙方關係大致良好，陳小姐亦對遲交租金沒多大注意或意見，雖然她沒有發出正式租單，但答辯人也沒有特別要求，其間，答辯人與蔡小姐一同居住在單位內，根本未有分租的需要或要求，所以陳小姐亦不會被問及所謂的同意，後來，蔡小姐因工傷事宜，便與答辯人簽下分租租約用來證明其支出，但申請人及陳小姐一直未被知會，再之後，發生了偷信事件、加上葉先生介入、發出終止租約通知書等等，雙方關係轉差，以致發生多番衝突。 + + 就欠租一事，以陳小姐修改後的計算為依歸，即答辯人一共只付了59期租金，打從2010年10月18日起開始沒有再付租金。 + +(b) 申請人或陳小姐從未同意過答辯人可以分租有關單位。 + +17. 不過，“未有同意分租”，在本案未能構成收樓理由，正如本席在庭上指出，根據香港法例第219章《物業轉易及財產條例》第58條，對這等違約事宜，業主必須在提出書面警告後，租客未有在合理的時限內補救有關事情，才可以此收回單位，但在本案中，按陳小姐的說法，在知悉事宜後，她只表示反對、從未同意，卻未有作出者面要求補救，因此，技術上，不能以此收樓。 + +18. 最後，雙方對於交吉單位也有爭議，關乎於什麼才是“交吉”。在這方面，不爭的事實是: 葉先生一直堅持有關單位可交回申請人，但: + +陳小姐必須出示有關授權文件；及 + +陳小姐亦要即時退回7,600元按金給他，之後欠租、賠償問題應由小額錢債審裁處決定。 + +19. 附帶條件的交吉是否真正的交吉? 本席認為這要視乎有關條件是否合理。細心覆看雙方一直的關係，本席認為葉先生開出的條件並不合理。 +首先，本席當然同意有關單位應交回業主或其委託的人仕，不過，在本案中，從開始簽臨時租約、正式租約、收租、商討加租等等多年一切事宜均由陳小姐代其哥哥處理，根本沒有任何事宜令人懷疑其合法的代表性，因此必須出示有關授權文件的要求未算合理。 + +再者，較重要的是，不論按照2005年11月10日租約的第五條或一般普通法下的隱含條款，租約內的按金旨在保障業主，只有在租客遷出及交吉單位時，在未有欠下任何租金或什費等等時，在合理的時間內全數退回租客，如有欠款、損壞等等，業主有權在按金內扣除，因此，要即時退回按金，並將欠租等事宜再在小額錢債審裁處處理，不是合理的要求。 + +(與雙方討論命令細節及訟費) + +20. 本席下令: + + + + + + + + + +黃健棠暫委法官 +土地審裁處 + + + + + + +申請人由陳美鳳小姐代表應訊 +答辯人由葉仲恩先生代表應訊 \ No newline at end of file diff --git a/zh_cases_hkldt/2011_HKLdT_28/case.json b/zh_cases_hkldt/2011_HKLdT_28/case.json new file mode 100644 index 0000000..6a12651 --- /dev/null +++ b/zh_cases_hkldt/2011_HKLdT_28/case.json @@ -0,0 +1,32 @@ +{ + "Date": "29 Apr, 2011", + "Action No.": "LDPD438/2011", + "Neutral Cit.": "[2011] HKLdT 28", + "case_title": "陳國強 訴 吳志樂", + "page_title": "陳國強 訴 吳志樂 | [2011] HKLdT 28 | HKLII", + "case_history": [ + { + "name": "LDPD438/2011", + "link": "https://www.hklii.hk/tc/appealhistory/LDPD/2011/438" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkldt/2011/28", + "neutral_cit": "[2011] HKLdT 28", + "court_code": "HKLDT", + "content": "LDPD 438/2011\n香港特別行政區\n土地審裁處\n申請編號LDPD 2011年第438宗\n_______________\n陳國強\n申請人\n及\n吳志樂\n答辯人\n_____________\n主審法官 : 土地審裁處暫委法官黃健棠\n審訊日期 : 2011年4月28及29日\n宣判日期 : 2011年 4 月29日\n勘誤日期 : 2011年 5月17日\n_______________\n勘 誤\n_______________\n現謹通知，就2011年5月17日頒下之判案書作出以下更正:-\n第8頁第3行:\n“蔡小姐”應為“葉小姐”\n第8頁第5行:\n“蔡小姐”應為“葉小姐”\n(陶博慧)\n黃健棠暫委法官書記", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2011/LDPD000438_2011.doc", + "file_name": "LDPD000438_2011.doc", + "file_ext": ".doc", + "status": "success" + }, + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2011/LDPD000438M_2011.doc", + "file_name": "LDPD000438M_2011.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkldt/2012_HKLdT_30/case.json b/zh_cases_hkldt/2012_HKLdT_30/case.json new file mode 100644 index 0000000..d39c006 --- /dev/null +++ b/zh_cases_hkldt/2012_HKLdT_30/case.json @@ -0,0 +1,26 @@ +{ + "Date": "7 Jun, 2012", + "Action No.": "LDBM265/2011", + "Neutral Cit.": "[2012] HKLdT 30", + "case_title": "彭國友 對 梁潤根及另二人", + "page_title": "彭國友 對 梁潤根及另二人 | [2012] HKLdT 30 | HKLII", + "case_history": [ + { + "name": "LDBM265/2011", + "link": "https://www.hklii.hk/tc/appealhistory/LDBM/2011/265" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkldt/2012/30", + "neutral_cit": "[2012] HKLdT 30", + "court_code": "HKLDT", + "content": "LDBM265/2011 彭國友 對 梁潤根及另二人\nLDBM 265/2011\n香港特别行政區\n土地審裁處\n建築物管理申請編號2011年第265宗\n_______________\n彭國友\n申請人\n及\n梁潤根\n第一答辯人\n潘保國\n第二答辯人\n康盛花園業主立案法團\n第三答辯人\n_______________\n主審法官 :\n土地審裁處暫委法官余敏奇\n審訊日期 :\n2012年 4月2及3日\n判案日期 :\n2012年6月7日\n_______________\n判 案 書\n_______________\n背景\n1.\n本案的申請人，於2005年5月22日獲選為康盛花園（＂該屋苑＂）業主立案法團管理委員會(“管委會”)委員，並獲選為主席。\n2.\n在有關時段，第一答辯人是管委會的秘書。他在2008年5月6日，向土地註冊處存檔一份更改註冊事項通知書，指申請人於2008年1月28日、3月18日及4月14日，連續三次缺席管理委員會會議，故根據建築物管理條例附表2第4(2)(c)所訂明，申請人經已被停任委員及主席的職銜。由於主席一職懸空，委員會後再經選舉，由2008年5月8日起，委任第二答辯人為管理委員會主席。\n3.\n雙方所披露及呈堂的文件中，有一封日期為２００８年４月２８日的信函，由鍾沛林律師行向第三答辯人提供法律意見，指申請人沒有出席上述三次會議，已連續三次沒有出席管委會會議。而在4月８日召開的會議，因只有三名委員出席，不是一個合法的會議。所以，向第三答辯人提出法律意見，指申請人巳停任委員，及主席一職。\n4.\n相信申請人對第一答辯人的做法，並不同意。但當時，申請人並沒有向土地審裁處或任何法院提出申訴。\n5.\n在此期間，該屋苑的一位業主黃女士，向土地審裁處提出案件編號為LDBM111/2008的申請，控訴本案申請人，指申請人因連續三次沒有出席管理委員會會議，要求土地審裁處宣布，申請人經已被停任委員。\n6.\n案件由土地審裁處姚勳智暫委法官（當時職銜）審理。經審訊後，姚法官指申請人在2008年4月8日，曾召開委員會會議；會議因沒有法定人數出席，而無法進行，變成俗稱\"流會\"。但由於這流會，申請人不可視為連續三次沒有出席委員會會議，故沒有被停職，申請被駁回。\n7.\n案件判處後，申請人沒有向土地審裁處提出申請，但證供顯示，他或其他人士向第三答辯人及其他管委會委員展示姚法官的上述判詞。但第三答辯人的代表律師，在致申請人日期為2008年9月9日的信中指，姚法官只是駁回黃女士的申請。\n8.\n當時，黃女士已提出了另一申請，案件编號為LDBM112/2008，控訴本案第一答辯人。原有申請，是要求土地審裁處宣布，第一答辯人被委任為秘書的議決無效，及申請人因連續三次缺席管委會會議而須停任委員。後申請經修訂，黃女士要求頒令宣布，指第二答辯人不是第三答辯人的第一屆主席，而應該是申請人；及第一答辯人不是被委任為秘書，故第一答辯人須更正土地註冊處的相關登記。\n9.\n第二答辯人以主席身份，在2008年11月7日召開管委會會議（＂第十二次會議＂），會議期間，因受到騷擾，會議通過更改會議地點。申請人指續會並沒有發出更改地點的通告，所以續會期間所通過的議決無效。繼會時通過的其中一項議決是將LDBM112/2008案交鍾沛林律師行處理，費用由第三答辯人支付。\n10.\n第三答辯人的管委會，又由第二答辯人以主席身份，召開在2008年12月18日的管委會會議(“第十三次會議”)，議決包括在2009年1月11日舉行業主周年大會，及再議決LDBM112/2008案交鍾沛林律師行的陳志華律師處理，而費用由第三答辯人支付。\n11.\n第三答辯人在2009年1月11日舉行了業主週年大會，並選出新一屆的管委會會員，申請人沒有獲委任，會議紀錄顯示申請人沒有參選。\n12.\nLDBM112/2008的案件由黃一鳴法官審理及在2009年4月30日頒下判案書。雖然黃法官同意姚法官關於流會的見解，但因黃女士沒有控訴法團（即本案第三答辯人）及本案第二答辯人，而頒令會對他們有所影響，所以沒有頒令，並撤銷所有申請。\n13.\n其後，黃女士沒有向土地審裁處作出其他申請。而新一任的委員會也如常運作。而到了2011年7月24日，第三答辯人又再舉行了業主週年大會，再選出新一屆委員。申請人也沒有參選委員。\n14.\n申請人在2011年8月20日才提出本申請。\n申請人的案情\n15.\n根據申請人的經修改申請書，申請的濟助可分為幾部分。首先，是環繞他在2008年並沒有連續三次沒有出席管委會會議而喪失了委員及主席的職能一事，所以，要求土地審裁處宣布，他是第一屆的主席；他指第二答辯人不是第三答辯人的第一屆主席，要求土地審裁處宣布第二答辯人不是第一屆管委會的主席，及第一答辯人須更正土地註冊處的紀錄。\n16.\n其次，申請人指第二答辯人無權以法團主席的身份召開第十三次會議，所以當日的議決無效，包括召開業主週年大會的議決。他又再指第二答辯人無法律地位以主席身份代表管委會或第三答辯人發出周年大會的開會通知，及以主席身份主持周年大會會議，因此，2009年1月11日的業主大會及議決無效，包括議決委任的第二屆委員。\n17.\n申請人又指周年大會的開會通知在12月28日發出，而大會在1月11日舉行，其間沒有足夠的14日通知期，所以大會也是無效，議決也是無效。\n18.\n再其次，在第十三次會議管委會通過將LDBM112/2008一案交陳志華律師處理無效。而且，該案要仲裁是第一答辯人的個人職責，與第三答辯人無關，故律師費應該由第一答辯人個人承擔。\n19.\n最後，申請人指管委會在第十二次會議，管委會在開會期間改變開會地點而沒有發出通知，所以議決無效，包括將LDBM112/2009案交陳志華律師跟進，和提交律師費按金50,000元。（會議紀錄有提述按金是有關LDBM111/2008案，後第一答辯人在作證時指是手民之誤）。\n答辯人的案情\n20.\n在再經修訂的反對通知書內，答辯人仍爭議申請人曾經三次連續缺席管委會的會議，所以，根據法例，他作為委員及主席的職能，經已停任。在正式審訊時，代表答辯人的陳律師放棄這一個爭論點，同意接受姚法官的論斷及裁決。\n21.\n答辯人指申請人仍然不應該得到法庭的濟助。陳律師指在上述的兩宗案件中，申請人是答辯人及證人。但在2008年，他並沒有採取主動去處理他是否仍是主席的法律問題。本案件是LDBM112/2008一案日宣判後的兩年及四個月後，申請人才正式入稟。而在這段期間，陳律師指以下的事件，經已發生：\n1. 在2009年1月11日，第二屆管理委員會已被選出；\n2. 屋苑財政預算案得批核及執行；\n3. 在2011年7月24日，第三屆管理委員會又被選出。\n22.\n陳律師指若法庭批準申請人的要求，頒令修改土地註冊處的登記紀錄，這將會將屋苑這三年來的管理架構帶來疑惑。他特別指出，申請人要求法庭宣布第二屆管理委員會的選舉無效，但沒有就第三屆管理委員會的誕生，提出任何濟助的申請。這樣，任何針對第二屆管理委員會的頒布命令，會為第三屆委員會的合法性，帶來疑問。這對第三屆的委員不公。\n23.\n而且，根據建築物管理條例，法團須每年召開周年大會及每隔一年舉行管理委員會選舉，所以，他指申請人的主席一職是否恢復，也不影響法例的規定。本席相信陳律師的意思是，就算申請人當時是主席，他也要召開相關的管委會以安排召開業主周年大會。\n24.\n所以，陳律師指申請人申請的濟助沒有實際目的，也無助解決任何糾紛，法庭不應頒布該會議的議決無效。陳律師又引述一些案例，以支持他的論說，本席在下文再處理。\n25.\n關於2008年12月18日舉行的管委會會議，陳律師同意管委會會議須由主席召開。但他指當晚所有的議決，均是獲得出席的委員一致通過，就算申請人當晚已恢復主席一職，他亦不可以本身一票，推翻眾委員的決定。陳律師又引述案例，指主席身份被質疑，屬技術性問題，無損會議結果。\n26.\n有關LDBM112/2008一案的訟費，陳律師指第一答辯人作為第三答辯人的秘書，如果因職責引起訴訟，他獲法團彌償保障是合理的，而法團有權這樣做。雖然土地審裁處是頒令雙方須各自負責本身的訟費，這不等於法團不應對秘書在執行責任後引起訴訟而提供保障。\n27.\n關於續會的問題，陳律師指有案例說明，會議改地方續會並不需要另行書面通知，所以，第十二次的管委會會議續會時通過的議決，並非無效。\n證供\n28.\n證人方面，申請人親自作証，沒有傳召證人。他引述日期為2012年3月12日的證人陳述書，作為主問證供。申請人又呈堂有關的文件，文件的真確性並無爭議。在盤問時，申請人指他有出席2009年1月11日的週年大會，但沒有參選管委會委員。但他承認沒有出席2011年7月24日的週年大會。\n29.\n在盤問時，申請人又指，如果2009年的週年大會無效，2011年的大會也是無效；但這點不在申請的濟助之內。陳律師又指，如果2009年的大會無效，將影響所有的委員，但申請人只提控了兩位委員，即第一及二答辯人。申請人認為他是告法團。\n30.\n第一答辯人代表各答辯人作證，他引述日期為2012年3月13日的證人陳述書作為他的主問證供。他也呈堂有關的文件，文件的真確性並無爭議。\n31.\n在接受盤問時，第一答辯人指他是在得到律師意見，及得到管委會的指示而向土地註冊處作出登記，指申請人經已離任。申請人指並沒有相關的管委會議決紀錄呈堂。證人同意並沒有文件呈堂，但根據他的記憶，應該在內務會議中有討論過。\n32.\n而就第十二次管委會會議的續會，申請人向證人提問，續會的地點。證人指他們將會議地點改到將軍澳坑口村的一間食肆繼續進行，而他忘記了食肆的名稱。\n討論及裁決\n33.\n本案的證人口供，基本上並沒有太大的爭議。本席將根據上述分析的爭議項目，分別考慮申請人及答辯人的證供，同時參考申請人及陳律師提出的法律觀點而作出適當的裁決。\n34.\n首先，由於答辯人並不爭議申請人並沒有連續三次沒有出席管委會會議，所以，他沒有因建築物管理條例的條文，在2008年4月間喪失了委員的身分及職能，他作為主席的職能也得以保存。由此而來，委員會並沒有主席的空缺，所以第二答辯人被選為主席，並不符合建築物管理條例的條文。\n35.\n表面上看來，申請人該得到濟助。陳律師指宣布是法庭行使的酌情權，在行使前，要考慮所有情况，認為適合，才會頒令。他引述容耀榮法官在\n李鳯嬌訴翠屏花園業主立案法團\nLDBM278,296,297/2006的判詞，第3段的立論如下：\n“法院行使酌情權給予[聲明令] 濟助時，須考慮當時所有情況，認為適合，才會頒發。是否適合，取決於既定法律原則。簡單來說，法院以[聲明令] 裁定有關訴訟人士的權益，目的是協助案中訴訟人士有效地解決實質的糾紛。很多時[聲明令] 頒發後，各方清楚了解到各自權益，因而不再對本來的糾紛進行訴訟。 倘若案中人士仍須就這些糾紛進行訴訟時，因為他們受[聲明令] 約束，當以[聲明令] 所闡明的權益為準，從而簡化了糾紛（不能簡化糾紛，法院基本不會頒發[聲明令]）， 減低訟費。\n反過來說，若然訴訟各方現在沒有，將來也不肯定會有實質糾紛，法院是不應頒發[聲明令]。\n”[深色部分是本席倚重的]\n36.\n陳律師也引用林文瀚法官(當時職銜)在\n曾婉玲訴兆隆苑業主立案法團\nLDBM199/2001一案的判詞。在該案中，申請人向土地審裁處要求頒布命令，指法團在召開業主大會時，並沒有發出足夠的十四日通知，故有關的會議無效。林法官拒絕宣布會議無效。在判案時，林法官分析有關頒布命令(declaratory relief)，是屬於衡平法的一種濟助，法庭是行使一種法律上付予的酌情權。在行使酌情權時，土地審裁處須考慮所有有關的情況，然後決定是否頒布有關的濟助。林法官又指出，以下的事項在建築物管理案件中當汝考慮：\n“Declaratory relief in the context of building management disputes\n18. ​In the exercise of its jurisdiction to grant equitable relief (and declaratory relief is one of them), the Tribunal is exercising a discretion. As in the case of the exercise of other judicial discretion, the Tribunal must have regard to all relevant circumstances in deciding whether declaratory relief should be granted in a particular case.\n19.​ In the context of building management cases, one must bear in mind the following factors,\n(a)​ the members of the corporation are co-owners of a building and they are neighbours. Most of them would live or work in the vicinity of one another. They would inevitably meet and have interaction with each other. Harmonious relationships between them are important to the well being of the community.\n(b)​ the purpose of incorporation is to facilitate and foster owners co-operation with each other in the management of the building. Whilst there would inevitably be differences in opinion amongst members, in the interest of the whole, such differences should be resolved if possible by the quickest and most cost-effective means. Otherwise, the energy and resources of the corporation could be spent on needless litigation with substantial legal costs being incurred. That would also seriously undermine the trust and goodwill amongst members which is essential to the successful operation of the corporation.\n(c)​\nas stated in Paragraph 17 above, it is understandable that errors would be made from time to time with regard to the affairs of a corporation. So long as the errors was made without any fraudulent or dishonest intent, although one needs to learn from mistakes, it is more important to rectify or remedy the situation in a positive manner.\n(d)​ personal vendetta has no proper place in dealing with the affairs of a corporation. It would only destroy the overall well being of the corporation. It would be inconsistent with the overall objective of the BMO.\n(e)​ although Section 45 of the BMO enables an owner of a building to bring proceedings in the Tribunal regarding matters specified in the Tenth Schedule, the main purpose of the ordinance, as set out in the preamble is to facilitate the incorporation of owners of flats in buildings or groups of buildings, to provide for the management of buildings or groups of buildings and for matters incidental thereto or connected therewith.\nHence, in the exercise of its jurisdiction, the Tribunal should primarily be concerned with the proper management of the building instead of any personal conflicts between individuals. In deciding a case, the Tribunal should consider what would be the course in the best interest of the owners as a whole.\n(f)​ In line with the underlying spirit of the BMO, subject to compliance with the provisions in the relevant Deed of Mutual Covenant and the BMO, the management of the building is placed in the hands of the management committee (see Section 29 of the BMO). The management committee is obliged to follow the resolution passed by owners in general meeting (see Section 14(1) of the BMO) and is subject to the supervision of the owners through the general meeting at which a member could be removed from office (see Section 14(2) of the BMO). In an extreme case, the owners at a general meeting can resolve to appoint an administrator and dissolve the management committee (see Section 30 of the BMO). It is for the owners, either acting through a management committee appointed by them or through resolutions passed in general meeting, to decide on matters relating to the management of the building.\nThe Tribunal should only intervene to ensure that the statutory mechanism and the provisions in the Deed of Mutual Covenant are observed. If the Tribunal is satisfied that the management committee or general meeting is acting in accordance with the provisions in the statutory and contractual framework in handling the affairs of the building, the Tribunal should leave it to the owners to decide for themselves on what is the best course to adopt in the management of the building.\n[the parts in bold are my emphasis]”\n37.\n林法官又在他判詞指出，如果濟助沒有實際的目的或作用，則土地審裁處可以拒絕行駛酌情權，而不作出有關的頒布命令。\n“A well established reason for a court to refuse to grant declaratory relief is a situation where the exercise does not serve any useful purpose.”\n38.\n本席同意林法官及容法官的論點，也引用作判案的法律基礎。\n39.\n陳律師指有關問題，因第二及三屆的委員均先後選出，申請的濟助沒有實質的作用。所以，土地審裁處不應再頒布命令，更改土地註冊處的紀錄。另一方面，若批准申請人的濟助，這將會使屋苑這三年來的管理架構帶來疑惑，包括，誰是合法的主席、不合法主席所主持的會議是否有效、第三屆委員的選舉是否合法、期間通過及簽署的屋苑合約是否有效等。陳律師又指出，有一些受這些濟助影響的人士，並未列入為與訟人士，法庭不應在沒有聽取他們的陳詞及理由之前，頒布任何濟助。\n40.\n申請人結案陳詞的論點，首先是針對第一答辯人，指他在修改土地註冊處法團登記紀錄前，理應先向申請人指出如何違反法例要求。由於第一答辯人沒有這樣做，他的行為並不合理。他的行為影響申請人，申請人除了被點名提及外，亦牽涉個人事宜、操守、違法等。他又指第一答辯人並沒有證明是獲得第三答辯人或管委會議決授權下，及無法律根據下，修改土地註冊處紀錄，聲明法團主席空缺。\n41.\n申請人又指第三答辯人為法人團體，如主席的身分不符合法例要求，管委會及該法團的議決，可能為無效的決議。所以提出本申請，要求土地審裁處進行仲裁，以澄清法律爭論。\n42.\n申請人又引述黃法官在LDBM112/2008的判詞。第一答辯人的律師曾論說，因新一屆的委員經已選出，所以黃女士的申請已變成毫無意義。但黃法官指，“若果土地註冊處的紀錄有不正確的地方，即使是過往的紀錄亦理應修正。”但黄法官只是指出了一個一般性的法律概念，本席也同意這是在我考慮的因素。但根據上述林法官及容法官判詞中所說明的立論，法庭在行駛酌情權的時候，是有責任兼顧所有情况，及所要求的命令是否對申請人及該屋苑有實在的作用及好處，而這所謂作用及好處，並不是申請人的主觀意願，而是客觀地綜合整件事件作出的考慮。\n43.\n為達至恰當地行使酌情權，本席相信我需要首先考慮第十三次管委會會議是否無效。如果第十三次管委會會議有效，則決定在2009年1月召開業主大會的議決也有效。本席也需要考慮，1月的業主大會是否有效。如果有效，根據建築物管理條例，上一屆的委員，包括申請人的任期自然屆滿。而在業主大會選出的第二屆管委會委員，就可以行使公契及建築物管理條例的權力，管理該大廈各事宜。申請人所擔心法團的議決是否有效的問題，最遲在選出第二屆管理委員會，自然解決。\n44.\n如果第二屆委員的選舉是有效的，申請人也沒有向法庭申請指第三屆的委員選舉有任何問題，所以順理成章，第三屆委員的選舉也是有效，最少在沒有任何證據指第三屆是有問題，本席將以第三屆委員為有效的選舉為判案的基礎。這樣，申請人在2008年4月後，是否第三答辯人的主席一事，在選出第二屆委員後，對第三答辯人的行政將無影響，就正如陳律師所言，屬事過境遷。\n45.\n有關第十三次管委會會議的問題，申請人指第十三次的的委員會會議是第二答辯人以主席身份召開，由於他不是一個有法律效力的主席，他所召開的會議也沒有法律效力，所有通過的議決也無效，包括召開業主週年大會的議決。\n46.\n陳律師陳律師引述原訟法庭王式英法官（當時職銜）在\nIncorporated Owners of Million Fortune Industrial Centre v. Jikan Development Limited and another\nHCA14915/1998案中所頒下的判詞。該案的其中一個爭論點，需要王法官審理的，是管理委員會的會議，並非由主席召開，會議是否有效。\n47.\n王法官在他的判詞中，詳細分析了建築物管理處案例的內容，包括附表2第8段、第10(4)(a)，及附表3第1(1)(c)段和第6(2)段。而附表2第8段也是申請人所引用的法例。王法官指，由法例條文分析，不是所有的違反行為都會使議決無效。有一些違反法例的過失只是程序上的失誤(irregularities)，這不會使議決無效。而王法官裁定違反上述4項，不會構成議案無效。本席非常同意王法官的立論。\n48.\n該案的被告人後來提出上訴，上訴案為CACV122/2000。在上訴時，被告人並沒有再次爭議會議並非由主席召開的論點。但上訴庭在判詞中也沒有批評黃法官所作出的上述立論。\n49.\n再者，上訴庭的羅傑志法官在判詞中，就該條例的附表2也有論述\n“...I read the provisions of paragraph 10 of the Second Schedule of the Ordinance as mandatory requirements which are designed to ensure that the owners are kept informed as to the transactions of the management committee. The failure of the chairman of the management committee, or indeed, the secretary, to comply with those provisions does not, in my view, render the resolutions which have been passed invalid or unprovable but it does open up parties perhaps to the sanction of application for their removal and, perhaps, for the appointment of an administrator.”\n50.\n根據羅傑志法官的分析，違反附表2第10條的規定，並不一定使有關的議決變成無效。雖然羅傑志法官所討論的條文，與今次申請人所引述的條文不同，但也支持王法官的分析，即違反建築物管理條例並不一定構成有關的議決無效。對委員的工作有所不滿的業主，是可以透過建築物管理員條例所提供的其他渠道，例如罷免相關的委員，及委派管理人接管管理委員會的工作，保障自己的權益。\n51.\n基於以上的法律分析，及在充分考慮所有證據後，本席裁定，第二答辯人召開第十三次會議，只是程序失誤(irregularity),不會使會議及議決無效，本席拒絕申請人要求頒布第十三次的管理委員會會議無效的申請。再者，當日出席管委會會議的共有七名委員，所有的議案都是一致通過的，這超過總委員的半數。特別針對召開業主周年大會一項議案，召開業主大會是法例要求，管理委員會通過議案，是責無旁貸，就算申請人出席，相信他亦會贊成。但無論如何，以他的一票，將不會影響管理委員會的決定。所以，就算本席需要考慮行駛酌情權，基於以上的案情，採納林法官及容法官指出的原則，在考慮所有有關情况後，本席是不應該行駛酌情權以頒布召開業主大會的議決無效，或第十三次會議無效。\n52.\n申請人也提出其它幾個理由，指2009年1月舉行的周年大會無效。申請人指召開週年大會的會議通知，是由第二答辯人以主席身份簽署的，所以無效。但本席接納陳律師的陳詞，這一次周年大會，是由管理委員會召開的，而法例規定，管理委員會秘書須在會議日期至少十四天前，發出會議通知，而有關通知，是第一答辯人發出，也有他的蓋印。\n53.\n申請人又援引釋義及通則條例第71條，指開會當日及派送通知當日是不計算入通知期。所以第一答辯人的通知期只有13日，少於法例要求，故通知無效。但上訴庭在\nthe Incorporated Owners of Pearl Island Garden v. Hui Chan Soon Hoy and Another\nCACV26/2004 已裁定，第71條並不適用於建築物管理條例附表3第2段。所以，答辯人在開會前14日派送通知就足夠。\n54.\n最後，申請人也指，大會由第二答辯人主持，而他並不是主席，所以大會並非一個有效的業主大會。本席只須引述上文羅傑志法官的判詞及林法官的判詞；申請人所投訴的事項，只是一些程序上的問題，並不足以使業主大會的議決無效。其實，有一些案例顯示，有一些業主大會由主席以外的人士主持，如果沒有與會者反對，並不足以使大會及議決無效(見\nKwan & Pun Co. Ltd. V. Chan Lai Yee & Others\n[2002] 4 HKC 639\n)。無證據顯示開會當日，申請人或與會者就主席問題提出反對。\n55.\n基於以上各點，本席駁回申請人要求本席宣布2009年1月舉行的業主周年大會無效的申請。\n56.\n順理成章，在一月週年大會選出的新管理委員會後，他們經已如常執行及運作第三答辯人的管理工作，不再存在申請人所擔心的，究竟管理委員會是否有效的問題。所餘下的問題，相信只是在四月間，至2009年的業主大會，申請人被＂取消＂委員的職責而衍生的問題。這已經是三年多前的事，但並沒有證據顯示，管委會或第三答辯人的運作出現問題。而且，任何的問題應該可以由現任的管理委員會，或有需要的時候召開業主立案法團大會，解决問題而無需由法庭頒布任何濟助。\n57.\n同時，就第二答辯人是不是第一屆主席一事，無論如何，他的任期到了1月的週年大會經已屆滿，法庭頒布命令，指他不是第一屆的主席，是無實際作用，所以，本席拒絕申請。\n58.\n相信申請人最大的投訴，就是他被錯誤地紀錄為喪失了委員及主席的職能。但對於是一個失誤，姚法官及黃法官均先後在上述案件的判案書中，還申請人一個公道，有關的判案書是公開的文件。在三年後，要求第三答辯人修改土地註冊處相關的紀錄，將會構成更大的混亂，而對申請人及該屋苑的其他業主，沒有好處及任何實質的用處。\n59.\n由根據申請人所呈堂的文件，他所應收取的主席酬金，亦經小額錢債審裁處審理及收取。綜合以上各點，在考慮了所有有關情况後，本席亦拒絕頒布命令要求第一或第三答辯人，修改土地註冊處的紀錄。\n60.\n申請人的另一個主要投訴項目，是管理委員會不應支付第一答辯人在LDBM112/2008的律師費用。雖然，在LDBM112/2008的答辯人，只是第一答辯人，但他作證時指出，存檔土地註册處有關的修改前，是得到管委會在内務會議同意後才進行。本席接納他的證供。而且，文件中也有向第三答辯人提供的法律意見。雖然，意見的內容指申請人己停任委員的意見有錯 ，但也證明第一及第三答辯人在作出修改前，合理地，先獲取了法律意見而後行動。\n61.\n根據建築物管理條例第２９Ａ條指:-\n“(1) 管理委員會委員如真誠地及以合理方式行事，則無須為法團或代表法團的任何人—\n(a) 在行使或本意是行使本條例授予法團的權力時；或\n(b) 在執行或本意是執行本條例委以法團的職責時，所作出的作為或造成的錯失，承擔個人法律責任。”\n62.\n陳律師引述上訴法庭副庭長鄧法官在\nYeung Chung Lau v. The Incorporated Owners of Century Industrial Centre\n[2007] 4 HKLRD 25\n, 的判詞，指作為立案法團的委員，因職責而引起訴訟時，法團有權議決對各委員因公職而被民事控訴，可作出彌償保障。\n“Suppose a building, where unfortunately one or more of its owners are known to be litigious and who have sued members of its management committee in their personal capacity, so much so that no owner was willing to serve on the management committee. In such circumstances, could the owners resolve that any owner who was prepared to serve on the management committee, should be indemnified for costs if he should be sued in connection with the performance or purported performance of his duties as a member of the management committee, “not being an action involving criminal liability or dishonesty or wilful negligence”?”\n63.\n雖然，鄧法官的判詞所牽涉的案情，有關彌償議案是通過業主大會而決定。但根據建築物管理條例第29條，業主大會的權力，須由管委會代表法團行駛及執行。本席裁定管委會亦有權通過議案，代第一答辯人聘請律師，出庭辯護。\n64.\n當然，本席仍然需要考慮管委會在達成這個議決時，是否合理。正如本席在上文已由紀錄，有關今次的訴訟，源於管理委員會所獲得的法律意見，而第一答辯人只是執行這一方面的議決。雖然，現證明有關的法律意見是有出錯，但錯不在第一答辯人或管委會。而在當時的環境，管委會根據律師的意見行事，並非不忠實或故意疏忽(dishonest or willful negligence)，相反，是付責任的。\n65.\n第一答辯人指他是依管委會的議決去做。雖然，沒有議決呈堂，本席接納第一答辯人的證供，決定是在內務會議通過。所以，他修改土地註册處的紀錄，是管委會的集體決定。\n66.\n鄧法官在上述判詞中，也說明，如果委員是執行法團的指示，法團有責任作出保障。\n“…if the writing of the letters (or procurement of the same) were at the request of the Incorporated Owners, the Incorporated Owners is arguably under an obligation to imdemnify those who actually execute the decision of the Incorporated Owners. …”\n67.\n所以，LDBM112/2008案是關係管委會指示第一答辯人的工作，管理委員會向第一答辯人提供法律援助，是合理及恰當。\n68.\n申請人在結案時，又指第一答辯人在向土地註册處存檔有關的修改之前，應該先召開會議，讓他有一個機會，作出回應或解釋。\n69.\n根據法例，一位委員失去職能是根據法例訂明，而並非需要由管委會透過會議將他停職。所以，在技術上，管委會並沒有需要召開管理委員會。\n70.\n綜合以上各點，管委會決定向第一答辯人提供訟費援助，是在權力範圍之內，也是合理的做法。\n71.\n申請人也提出了兩個程序上的問題，指第十二次會議續會無效。在續會時，管委會通過第一次委派律師支援第一答辯人。本席接納陳律師的陳詞，一個會議中，有很多的事項，是可以交由會議的成員，作出決定，這包括在有需要的時候改變會議的地點。（參考\n何可華及另一人訴海富苑業主立案法團及另十人\n[2007] 1 HKLRD 445\n）。因此，沒有理據需要會議重新發出通知，否則等於要重新召開會議，影響議會的運作。雖然第一答辯人的證供，續會的地點並不清楚，但根據會議紀錄，所有參加會議的成員也參加續會，所以，並不影響會議及議決的有效性。\n72.\n而關於第十三次管委會的問題，申請人指第二答辯人無權召開會議，在上文經已作出裁決，不贅。\n73.\n總結以上各點本席駁回申請人所有的申請。\n74.\n最後，有關訟費的問題，一般而言，勝訴一方應該得到訟費。但今次的案情，有其獨特性。答辯人同意，申請人並沒有因為連續三次沒有出席管委會會議而喪失了委員資格。所以，案件的爭議點，是在法庭應如何行駛酌情權。雖然，本席拒絕行駛酌情權，但在考慮及平衡所有因素後，裁定一個公平的命令，是不作訟費命令。\n余敏奇暫委法官\n土地審裁處\n申請人親自應訊\n第1至3答辯人由鍾沛林律師行陳志華律師代表應訊", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2011/LDBM000265_2011.doc", + "file_name": "LDBM000265_2011.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkldt/2016_HKLdT_38/case.json b/zh_cases_hkldt/2016_HKLdT_38/case.json new file mode 100644 index 0000000..a6fbee7 --- /dev/null +++ b/zh_cases_hkldt/2016_HKLdT_38/case.json @@ -0,0 +1,26 @@ +{ + "Date": "22 Apr, 2016", + "Action No.": "LDPD1953/2015", + "Neutral Cit.": "[2016] HKLdT 38", + "case_title": "文貴益 對 劉炳興", + "page_title": "文貴益 對 劉炳興 | [2016] HKLdT 38 | HKLII", + "case_history": [ + { + "name": "LDPD1953/2015", + "link": "https://www.hklii.hk/tc/appealhistory/LDPD/2015/1953" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkldt/2016/38", + "neutral_cit": "[2016] HKLdT 38", + "court_code": "HKLDT", + "content": "LDPD1953/2015 文貴益 對 劉炳興\nLDPD 1953/2015\n香港特別行政區\n土地審裁處\n申請編號LDPD 2015年第1953宗\n________________________\n文貴益\n申請人\n及\n劉炳興\n答辯人\n________________________\n主審法官 :\n吳紹林審裁處成員\n聆訊日期 :\n2016年3月2日\n判決書日期 :\n2016年4月22日\n判決書\n背景\n1.\n申請人聲稱他是涉案處所的出租人, 答辯人是租客，雙方有一定期租賃，而由於答辯人欠租，他以此理由申請收樓。\n2.\n申請人和答辯人在本案中主要爭議雙方是否有租務關係。雙方不爭議涉案處所座落於政府土地上和答辯人曾每年支付申請人或申請人家族成員款項，由1960年代起直至2013年；申請人認為答辯人已交付之款項是租金，但答辯人認為這只是每年的「保護費」。\n申請人的案情\n3.\n申請人於2015年9月10日提交申請通知書, 並在2015年11月19日聆訊後作出修改。申請人聲稱雙方有一按年的定期租賃，每年租金1,400元，和答辯未有繳付由2014年1月1日起的租金。\n4.\n申請人代表，亦即是申請人兒子文立基，作為證人聲稱涉案處所毗鄰申請人家族擁有的土地 (第102約2416地段; “2416地段”) ，申請人家族早於1930年代已在2416地段和涉案處所的土地上搭建寮屋，而由1960年代開始，申請人母親出租涉案處所予答辯人，其後由申請人承接為出租人。申請人亦存檔一份1997年2月3日的租約〔〝1997租約〞〕，申請人是出租人，答辯人是租客，但這份租約沒有加蓋印花和答辯人沒有簽署。\n答辯人的案情\n5.\n答辯人於2015年9月16日提交反對通知書。答辯人聲稱涉案處所是答辯人的物業，並存檔一份寮屋人口記錄，登記姓名是答辯人和劉吉祥。\n6.\n答辯人兩名兒子劉天才和劉福祥作為證人聲稱，涉案處所土地上的寮屋是答辯人於1964年從一位姓黃的婆婆購入，但答辯人現在沒有此買賣的書面記錄，亦不知道這位婆婆的全名，現在也找不到這位婆婆。他們亦聲稱，同年有另一位老太自稱是涉案處所所在土地的地主向答辯人索取金錢，而答辯人當時基於家人的安全，在沒有報警求助下，開始每年向這位老太交付金錢，作為保平安的「保護費」。其後，申請人代替這位老太收受金錢，每年交付的金錢也有所增加，但間中有某幾年沒有支付，而從2008年至2013年答辯人是以銀行轉賬交款。\n7.\n答辯人爭論雙方沒有書面或口頭租約，而答辯人曾交付的金錢只是「保護費」，不是租金。\n爭議:\n雙方是否有租務關係？\n8.\n劉福祥作供時陳述，過往他不曾詢問答辯人為何答辯人每年需向申請人支付金錢，而他只是依答辯人指示每年交款，直至2013年他知悉涉案處所其實是座落於政府土地上，不是申請人或申請人家族所擁有。他其後向答辯人查詢，在得知過往交款只是「保護費」後不再安排付款，而他和文立基曾為此爭執，他亦曾報警求助。他認為答辯人是受申請人家族欺騙其為土地擁有人才交付「保護費」。\n9.\n劉天才作供時陳述，他原也以為申請人是涉案處所的土地擁有人，答辯人是租客，答辯人每年交付的是租金，但當他從答辯人知悉過往背景和知悉涉案處所其實是座落於政府土地上後，他認為答辯人過往交付的只是「保護費」，他也認為從最初交款開始已是一個錯誤。\n10.\n申請人存檔的1997租約沒有加蓋印花和沒有答辯人簽署，本席不接納此文件，但本席認為雙方過往多年的行為已構成一按年的定期租賃。答辯人沒有親自作供，但從他兒子的供詞，本席相信他最初也是誤認申請人是涉案處所的土地擁有人才每年交付租金，不然答辯人不會每年交款共約40多年，期間沒有為交「保護費」爭議及報警。縱使答辯人於60至70年代的環境下或真的擔憂家人的安全，他沒有在香港治安好轉後爭議或處理他所聲稱的「保護費」。誠然，答辯人只是在知悉申請人不是涉案處所的土地擁有人後才爭議每年的交款。\n11.\n答辯人的反對通知書內不曾提及答辯人每年的交款只是「保護費」，於過堂聆訊時，答辯人代表只是質疑申請人的身份，如申請人不是業權擁有人下是否能出租涉案處所。但是，當答辯人一方在知悉租客或不能質疑出租人的業權後，答辯人代表於期後聆訊和証人供詞加入有關「保護費」的抗辯理由。在相對可能性下，本席不相信答辯人有關「保護費」的陳詞。\n總結\n12.\n本席裁斷雙方有一按年的定期租賃，而答辯人有欠租，申請人可以答辯人欠租申請收樓，並獲勝訴，但本席於本案根據\n《高等法院條例》\n〔《香港法例》\n第４章\n〕\n第21F條\n規定給予答辯人濟助，如答辯人在濟助期屆滿日或之前能支付申請人至付款當天到期應繳的所有欠租/中間收益和訟費, 答辯人可獲沒收租賃權的寬免。\n13.\n關於定期租賃的租期，答辯人沒有陳述，而申請人聲稱是由每年1月1日起至年尾，但是申請人曾依據1997租約表示租期是由2月3日起計。本席認為每年租期不大可能在曾確定後改變。因此，既然申請人於本案曾依據每年租期由2月3日起計，也沒有解釋期間為何改變，及在每年租期由2月3日起計沒有不利於答辯人的情況下，本席裁斷答辯人只是由2014年2月3日起欠租，雙方的按年定期租賃是由2月3日起至翌年的2月2日止。\n訟費\n14.\n申請人於本案中勝訴。在訟費應視乎訴訟結果而定的大原則下，答辯人理應承擔申請人在本案中的訟費。\n15.\n申請人要求訟費13,562元，包括為提交附加申索書而諮詢律師的費用、授權書的律師費、存檔費、聆訊記錄的謄本費、申請人代表及証人出席聆訊的費用等。本席認為申請人於2015年12月15日提交的附加申索書只是重複事實證據，對本案的審訊沒有大作用，本席也對申請人要求謄本的必要性有疑問。\n16.\n無論如何，綜觀申請人於本案的必要開支和所用時間，本席以簡易程序評定申請人的訟費為3,300元。\n裁決\n17.\n本席作出以下頒令: -\n(1) 除以下第5段所述外, 答辯人須把涉案處所的空置管有權交還申請人;\n(2) 答辯人須支付申請人由2014年2月3日至交回處所的空置管有權為止的欠租/中間收益, 以每年1,400元計算;\n(3) 發放答辯人已交付審裁處的中期付款1,400元給申請人，作為2014年2月3日至2015年2月2日的租金；\n(4) 答辯人須支付申請人本申請的訟費，以簡易程序評定為3,300元；\n(5) 如果答辯人在2016年5月10日(“濟助期屆滿日”) 或之前把以上第2段所述的所有欠租/中間收益 (包括截至付款當天到期應繳的所有欠租/中間收益)，連同以上第4段中所述的訟費繳存土地審裁處, 則答辯人可獲沒收租賃權的寬免, 而涉案處所的租約亦恢復有效；\n(6) 除非另有命令, 審裁處在本判決中命令答辯人支付的所有款項須以現金、易辦事、香港銀行發出的本票、或香港律師行發出的支票繳存審裁處, 及本審裁處會將收到的款項發放給申請人。\n(吳紹林)\n審裁處成員\n土地審裁處\n申請人：由文立基代表應訊\n答辯人：由劉天才代表應訊", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2015/LDPD001953_2015.docx", + "file_name": "LDPD001953_2015.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkmagc/2019_HKMagC_2/case.json b/zh_cases_hkmagc/2019_HKMagC_2/case.json new file mode 100644 index 0000000..7fbef64 --- /dev/null +++ b/zh_cases_hkmagc/2019_HKMagC_2/case.json @@ -0,0 +1,26 @@ +{ + "Date": "27 May, 2019", + "Action No.": "ESCC2544/2018", + "Neutral Cit.": "[2019] HKMagC 2", + "case_title": "香港特別行政區 訴 許智峯", + "page_title": "香港特別行政區 訴 許智峯 | [2019] HKMagC 2 | HKLII", + "case_history": [ + { + "name": "ESCC2544/2018", + "link": "https://www.hklii.hk/tc/appealhistory/ESCC/2018/2544" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkmagc/2019/2", + "neutral_cit": "[2019] HKMagC 2", + "court_code": "HKMAGC", + "content": "ESCC2544/2018 香港特別行政區 訴 許智峯\n新聞摘要 (英文版)\n新聞摘要 (中文版)\nESCC 2544/2018\n[2019] HKMagC 2\n香港特別行政區\n東區裁判法院\n刑事案件編號2018年第2544號\n________________________\n香港特別行政區\n訴\n許智峯\n（被告人）\n________________________\n主審裁判官 ：\n鄭念慈\n聆訊日期 ：\n2019年3月25-28日及4月1-2，24日\n裁決日期 ：\n2019年5月27日\n裁決\n背\n景\n1.\n許智峯 （下稱「被告」）是立法會議員，可以進入位於中環立法會道1號的立法會綜合大樓 （下稱「立法會大樓」），履行公務。\n2.\n2018年4月24日，立法會大樓會議室1內正舉行《廣深港高鐵（一地兩檢）條例草案》委員會會議（下稱「草案委員會會議」）。\n3.\n當日，政府人員組成一個小組 （下稱「該小組」），成員包括保安局高級行政主任梁諾施（下稱「控方第一證人」），及六名運輸及房屋局的人員。他們在立法會大樓不同位置候命，並記錄立法會議員在草案委員會會議舉行時的行蹤。運輸及房屋局助理秘書長[運輸3B]黎惠珊，是該小組的組長，負責監察及統籌該小組組員；運輸及房屋局助理秘書長[運輸3C]鄭朗峰，是該小組統籌員；運輸及房屋局二級系統分析／程序編製主任[運輸1]梁榮燊，則為該小組技術支援，及運輸及房屋局谷歌雲端硬盤帳戶的系統管理人。\n4.\n當日約0800時，控方第一證人及該小組的其他組員，在立法會大樓1樓112室報到當值。鄭朗峰向該小組組員進行簡介。簡介期間，梁榮燊向黎惠珊派發一部手提電腦。而該小組其餘的組員，每人均獲發一部已安裝了谷歌試算表（Google Spreadsheet）應用程式（App）的智能手機。 當時，控方第一證人獲發一部連同電池的Samsung手提電話（下稱「手機」）\n[1]\n。\n5.\n該小組組員，可以透過上述谷歌試算表應用程式，記錄和更新立法會議員的行蹤；而他們所作任何更新，都會經由Wi-Fi網絡，同步上載至一個谷歌雲端硬盤帳戶\n[2]\n（下稱「THB谷歌帳戶 」）。\n控方\n案\n情\n6.\n控方第一證人被指派到立法會大樓2樓的電梯大堂（下稱「電梯大堂」）工作。2018年4月24日0825時，她到達電梯大堂，開始工作。當時，她携帶手機，以及一張載有68位立法會議員資料的紙張（下稱「A4紙」）\n[3]\n。\n7.\n同日約0940時，被告進入電梯大堂。當時，被告問控方第一證人在做甚麼，控方第一證人回答:「我做緊嘢」，被告再問控方第一證人做甚麼，控方第一證人再回應:「我職責所在，我做緊嘢」。\n8.\n之後，被告要求拿取控方第一證人手上的A4紙閱讀，控方第一證人回答:「唔方便」，但被告仍然伸手取去A4紙，並且閱讀。\n9.\n被告接著問控方第一證人，她手上的手機，屬於「阿公」還是控方第一證人自己，控方第一證人回答: 「我做緊嘢，唔方便比你睇」；但被告步步進逼，更加「伸手出嚟就搶手機」，最後經過一番糾纏，被告成功搶去手機，更以有如「一支箭」般的速度離開。\n10.\n控方第一證人追著被告，並曾至少3次向被告說：「議員，唔該比番電話我」，但被告未有理會。控方第一證人最終失去被告蹤跡，於是以自己的手提電話，發送 whatsapp訊息通知該小組其他組員，被告從她那裡奪取了手機。接著，她致電黎惠珊求助。其後，她獲發一部iPad，代替手機。約於0954時，黎惠珊取消該小組行動，並吩咐其他組員返回立法會大樓1樓的112室。其後，運輸及房屋政治助理符傳富，亦得知控方第一證人被搶去手機。\n11.\n因為手機沒有密碼保護，符傳富決定關閉上述谷歌試算表應用程式，而該小組當日的工作亦停止。\n12.\n符傳富在立法會大樓不同地方，尋找被告。同日約0958時，符傳富在會議室1外的走廊遇見被告，被告將手機交給符傳富。其後他們曾一起乘升降機，符傳富向被告說:「何必呢，大家都係做嘢」。被告回應:「你想點就點，預咗你地報警」。\n13.\n控方第一證人對「搶手機」事件覺得驚訝及驚慌，不能繼續工作。\n14.\n其後，網絡安全及科技罪案調查科科技罪案組數碼法理鑑證專家，對手機及THB谷歌帳戶等進行數碼法理鑑證檢驗，確認約於2018年4月24日0955時，有人使用手機從THB谷歌帳戶，發送一封共載有5個PDF檔案附件的電郵，到電郵帳戶huichifung@gmail.com （下稱「Gmail帳戶」），然後再刪除已寄出的電郵。\n15.\n2018年4月25日，控方第一證人就上述事件向警方報案。\n16.\n被告分別於2018年4月25日\n[4]\n及26日\n[5]\n的兩次記者會上，就「搶手機」事件致歉。\n17.\n2018年5月5日0946時，警方就上述事件，拘捕及警誡被告。同日，被告自願參與警誡錄影會面\n[6]\n，並在警誡下承認，他是Gmail帳戶的註冊戶主，且一直使用帳戶。\n被告\n背\n景\n18.\n被告36歲，已婚，有1子1女，2011年開始就任區議員，2016年開始就任立法會議員，在香港無刑事記錄。\n19.\n被告擁有良好品格，不但證供比較可信，而且犯罪傾向性較低。\n被告\n案\n情\n（\n案發日之前\n）\n20.\n自就任立法會議員開始，被告已留意到「全程監察小組」（或稱為「應變及通傳小組」或「狗仔隊」）（ 下稱「監察小組 」） 存在，他們「跟出跟入」，「睇住」議員是否身在立法會大樓內，以及在立法會大樓內甚麼位置。遇上富有爭議性議案時，監察小組人數更多。\n21.\n被告認為，監察小組根本沒有權進入立法會大樓，而且他們的行為違反《個人資料（私隱）條例》，更加會干預立法會運作等等。\n22.\n因此，被告曾向政府、私隱專員公署及立法會秘書處等投訴，但基本上沒收到任何回覆。\n23.\n他投訴的內容，包括查詢政府收集了甚麼資料及收集次數多少等等，並表明自己不同意政府收集他的個人資料。\n24.\n他又認為立法會大樓不是公眾地方，只有獲批准人士才可進入。如果有人獲准進入，立法會議員應該得到知會，但他從來沒有收到相關的知會，只接收到秘書處信件，表示已收到他的投訴，及將與行管會跟進及商討。他沒有收到秘書處實質回覆，政府亦沒有任何回應。\n25.\n他曾在案發那段期間，收到私隱專員公署的回覆，但現已記不起究竟是在案發日前，還是案發日後才收到回覆。\n26.\n於2017年，監察小組以紙和筆作紀錄，但約自2018年初起，開始以電話、電腦作紀錄，被告認為情況變得更嚴重，因為電話及電腦的功能包括拍片和錄音，亦可即時傳送及分析。被告懷疑資料可能傳送給外間機構，如中聯辦或中央政府。\n被告\n案\n情\n（\n案發日\n）\n27.\n被告當日早上8時許，在立法會大樓參與草案委員會會議。大約9時35至40分，他打算找尋助理，拿取一些文件。\n28.\n他當時找不到助理，於是進入電梯大堂，見到控方第一證人有按電話動作，正在記錄他的資料。被告上前查問控方第一證人做甚麼，是否記錄他的資料，並問控方第一證人可否給他「睇一睇」。控方第一證人以「我做緊嘢，唔好為難我」之類的說法回應。\n29.\n被告從控方第一證人手上取去A4紙，亦有看到內容。\n30.\n被告由控方第一證人的眼神、表情，且有「收埋」物件的行為，認為控方第一證人「鬼祟」及「閃縮」，令他感到更加可疑，有可能涉及嚴重犯法行為，故決定拿取控方第一證人手持的手機。\n31.\n被告當時沒有想過控方第一證人會奮力保護手機，以致在拿取手機的過程中，與她有身體接觸。被告最後成功拿取了手機。被告要核實違法的情況及舉報，但控方第一證人又想取回手機，故被告不能「企定」閱讀資料，於是進入洗手間。\n32.\n在洗手間期間，被告發現手機有數十個檔案，其中最少3至5個涉及案發日前超過3個月的資料。被告隨意將其中5個檔案，上載至自己公務使用的Gmail帳戶。被告及其約10名助理，均有權限及密碼查閱Gmail帳戶。\n33.\n被告之後在兩次記者會上，就「搶手機」事件致歉。被告在庭上解釋，他在記者會上致歉，因為覺得在沒有控方第一證人同意下，他的做法引致控方第一證人難受，並不正確。\n分\n析\n（\n1\n）被告\n進\n入\n電梯大堂\n的目\n的\n34.\n主問期間，被告曾經表示，「搶手機」前他應該是找尋助理，拿取文件；亦因為找不到助理，因而進入電梯大堂，「㩒𨋢」往辦公室自己找。\n35.\n在盤問時，本席有機會再仔細觀看閉路電視錄影，同意被告進入電梯大堂後，的確只曾按動往「下」的按鈕，就開始步往控方第一證人，不久就發生「搶手機」事件。\n36.\n其他覆蓋進入電梯大堂走廊之前位置的閉路電視錄影，沒有顯示被告進入電梯大堂前，曾打電話或使用whatsapp程式等方法，確定助理位置。被告同意如果他當時要前往辦公室，應該按動往「上」的按鈕。控方陳述，被告進入電梯大堂前行為可疑，又曾在走廊徘徊，合理的推論是他在等待沒有其他人的情況下，跟控方第一證人對質。\n37.\n被告在庭上解釋，他對案發前的事情，並沒有清楚記憶，只因日常的工作就是開會和找助理；而在案發之後，他有機會觀看閉路電視錄影，並回憶「搶手機」之前的事情，故才認為自己當時應該是找尋助理；被告亦補充，他當時有可能正前往停車場。\n38.\n本席同意，被告在主問期間，的確提及他只是「應該」在找尋助理，而且被告對「搶手機」之前的事情記憶不深，亦是合理。本席認為，不可以因為被告曾在走廊徘徊及「㩒𨋢」的情況，而認定他在進入電梯大堂前，已經有「跟控方第一證人對質」的想法。\n（\n2\n）「\n招認\n」\n39.\n被告在警誡下承認，他是Gmail帳戶的註冊戶主，且一直使用，除此以外，被告大多以「無嘢想講」回應警方問題。基於被告在庭上同意，他確有從手機上載5個PDF檔案至自己公務所用的Gmail帳戶，本席認為被告在警誡下的說法，對解決本案的爭議並沒有幫助。\n40.\n事發後，被告於記者會上，承認曾取去一名政府官員的手提電話，且閱讀過其中內容，但沒有提及他藉手提電話，上載檔案至自己電子郵箱後並刪去相關紀錄；同時，他亦未有提及他「搶手機」與任何嚴重違法行為有關。\n41.\n本席決定是否將被告於記者會上的說法納入證據前，需要考慮其自願性，即被告是否自願地說出這些話。被告不爭議那是自願說的。\n42.\n本席認為，被告雖然在記者會上，未有透露他曾把手機內的部份資料，上載至Gmail帳戶並刪去相關的紀錄，但不一定源於他覺得有關的行為不誠實，因為他沒有責任在記者會上交代所有詳情。\n43.\n被告有權保持緘默，本席不會對他未有於記者會上說明已經刪去上載檔案至自己電子郵箱的紀錄，作為被告是否不誠實的考慮。\n44.\n另外，被告雖然在記者會上只提及私隱問題，完全未有提及他認為控方第一證人涉及其他嚴重違法行為，但本席不認為被告在庭上的說法與他在記者會上的說法有矛盾，被告只是在庭上提出進一步的理由，解釋他的行為。正如前述，被告有權保持緘默，沒有責任在記者會上交代所有詳情。\n45.\n本席不會對被告在記者會上，未有提出一些在庭上首次提出的說法，作任何不利的推論。\n（\n3\n）\n_\n「搶手機」\n（\nA\n）\n經\n過\n46.\n在庭上，控方第一證人說出整個「搶手機」的過程，並以「步步進逼」形容被告當時的行為。\n47.\n閉路電視錄影\n[7]\n可以引證，控方第一證人雙手垂下在身前小腹位置時，被告先伸手取去控方第一證人手上的A4紙，並且閱讀。此時，控方第一證人雙手仍然持着手機，之後，被告多次伸手，嘗試取去控方第一證人手上的手機。控方第一證人最初以左手拿着電話，之後曾右移幾步，以右手拿着電話。\n48.\n其後，控方第一證人需要後退，此時，閉路電視錄影雖然因為死角位置，未能攝錄事發經過，但仍然見到被告頭頂及肩膊不斷移動。控方第一證人指出，當時她身後已是牆壁，但仍然以雙手持着手機，反手置於後腰位置，但被告伸出左手，並接觸到她雙手及手機，雙方拉扯。\n49.\n閉路電視錄影再次見到控方第一證人時，她明顯正在與被告拉扯手機，並見到被告右邊身與控方第一證人有身體接觸。控方第一證人指出，當時兩人之間無距離，身貼身，即被告的手臂接觸到她的正面由肩膊到腰之間位置。\n50.\n最後，被告成功搶去手機，控方第一證人拉扯被告的右手，意圖取回手機，但不成功。被告最終快步離開電梯大堂，控方第一證人從後追他，並向被告說了最少3次：「議員，唔該比番電話我」。控方第一證人追至一個可以通往洗手間的地方後，再見不到被告，於是她以自己的手提電話，將事件告知其他人。\n51.\n本席認為，控方第一證人的說法合情合理，並且符合閉路電視錄影。而黎惠珊呈堂她的手提電話紀錄\n[8]\n，亦吻合控方第一證人被「搶手機」後，曾將事件告知該小組其他組員及尋求協助的說法。\n52.\n被告對「搶手機」的過程，基本上沒有爭議。\n53.\n控方第一證人形容被告「搶手機」時所使用的力量，是「大力」及足以令她「揸唔實」手機，亦提及不會以「攞」字去形容。按當時情況而言，被告如果沒有使用一定程度的力量，根本不可能成功取去控方第一證人手上的手機。本席肯定，被告當時的確使用一定程度的力量，足以令到控方第一證人不能握緊手機。本席接納控方第一證人形容她被「搶手機」的過程。\n（\nB\n）\n憂\n慮\n及\n身\n體\n接\n觸\n54.\n控方第一證人形容被告「搶手機」的行為，令她覺得「驚訝」和「心情很驚」，最後亦因為情緒問題而不能繼續工作。本席認為控方第一證人當時雖然身處立法會大樓，但顯然對被立法會議員「搶手機」始料不及，她覺得「驚訝」，反應十分正常。\n55.\n任何人如果被他人搶奪物品，都可能感到驚惶；控方第一證人是一名女士，事發時獨自一人，而被告持續使用武力，雙方身體亦有接觸，最後被強行取去手機，本席認為，「搶手機」時引致控方第一證人感覺驚惶，合情合理。\n56.\n代表被告的陳大律師指出，控方第一證人被「搶手機」後仍然追著被告，期間要求被告交還手機，其後亦可以鎮靜處理事件，包括在洗手間外等了一段時間，並以自己的手提電話通知其他人，獲發iPad 後又沒有提出不能工作，只曾向符傳富表示對未能保護手機感到抱歉，未有提及恐慌。陳大律師陳述，控方第一證人並不驚惶。\n57.\n本席不接納陳大律師的陳述。如果突然被人搶去自己管有的物品時，不同的人會有不同的反應。控方第一證人是一名高級行政主任，事發時正在按指示工作，因而才管有手機。她雖然對「搶手機」始料不及，但考慮到她當時正在工作期間，縱使驚訝及驚惶，仍然意圖取回手機，並從後追被告。在失去被告行蹤後鎮靜處理事件，顯然只是源於她對工作的責任感，不能以控方第一證人的表現，否定她被「搶手機」時感覺到憂慮及驚惶。\n58.\n綜合所有證供，本席接納控方第一證人是一名誠實及可靠的證人，她實話實說，對自己的感受亦沒有誇大。本席裁定，「搶手機」的過程引致雙方有身體接觸，亦令到控方第一證人感覺憂慮及驚惶。\n（\nC\n）\n無權進入\n立法會\n大樓\n59.\n被告同意他能夠辨認監察小組的成員，因為他們會在立法會大樓不同位置駐守，跟出跟入，以電話及紙做紀錄，亦有掛上工作證等。被告當日一見到控方第一證人時，必然相信她是監察小組成員。\n60.\n被告認為監察小組無權進入立法會大樓，因而曾去信立法會秘書處投訴，但基本上收不到任何回覆。本席不會評論監察小組是否有權進入立法會大樓，但是，被告既然早已因此事向立法會秘書處投訴，他沒有可能認為立法會秘書處不知道監察小組的存在；他亦沒有理由懷疑，案發日控方第一證人未經批准便進入立法會大樓。\n61.\n本席接納案控方第一證人所說，當她到達立法會大樓時，需要先行登記，才能進入。她肯定已獲得批准，才進入立法會大樓。\n62.\n顯然，被告只是不認同批准監察小組（包括控方第一證人）進入立法會大樓的決定，他不可能認為控方第一證人在沒有批准下，擅自進入立法會大樓。\n（\nD\n）「搶手機」\n原\n因\n（I）嚴重罪行\n63.\n根據被告的說法，他基於控方第一證人神態「閃縮」、「鬼祟」，又有「收埋手機」的動作，更沒有正面回答正在做甚麼等等，因此認為控方第一證人干犯嚴重罪行；為了防止罪案，他才決定「搶手機」。\n64.\n在案發日之前，監察小組已存在一段時間，亦早已引起了被告的注意及不滿。本席接納案發當日，被告的確見到控方第一證人有按電話動作，亦曾問控方第一證人手機屬誰。本席肯定「搶手機」前，被告已經認定控方第一證人是監察小組的成員。\n65.\n閉路電視錄影清楚顯示，被告進入電梯大堂「㩒𨋢」後，走近控方第一證人，控方第一證人垂下握著A4紙及手機的雙手，交疊在小腹前。但被告伸手取去A4紙閱讀\n[9]\n後，控方第一證人卻沒有特別動作，只是繼續握住手機，並沒有「收埋手機」的行為。直至被告向著手機方向伸出左手，嘗試取去手機\n[10]\n，控方第一證人才後退幾步，開始以左手拿着電話，反手置於身後。其後被告開始「搶手機」\n[11]\n，控方第一證人才因而左閃右避。\n66.\n控方第一證人解釋，她當時雙手交疊在小腹，是不希望被他人見到手上物件的內容，並且是出於社交禮儀。本席認為控方第一證人說法合理，而且閉路電視錄影亦顯示，被告伸手「搶手機」前，控方第一證人完全沒有任何將手機收藏在衫袋或手袋的動作，她明顯是因為被告向著手機方向伸出左手，嘗試取去手機，才後退幾步，並反手把手機置於身後。\n67.\n控方第一證人雙手將手機置在小腹前，只是按正常社交禮儀而行。本席不接納被告伸手「搶手機」前，控方第一證人有「收埋手機」的行為。\n68.\n控方第一證人是一名政府人員，當日按指示在電梯大堂進行記錄，對她而言，除了工作地點及性質與平日不同，根本就是「返工」。她完全不可能會認為自己正在犯法；而雙手交疊在小腹，是禮貌表現；拒絕交出手機給被告，合情合理。本席既不相信，控方第一證人表現得「閃縮」或「鬼祟」，亦不相信，被告當時覺得控方第一證人「閃縮」或「鬼祟」。\n69.\n陳大律師陳述，控方於盤問時沒有挑戰指當時控方第一證人鬼祟、閃縮反應，及被告認為為防止罪案才取走手機和A4紙的行為。本席接納\nBrowne v Dunn\n案\n[12]\n曾提及需要向證人指出案情的原則，意思即當一方指對方的證人就某一事項並非說實話的時候，必須把這一點向證人指出。但終審法院在\nHKSAR v Z\n[13]\n一案中指出，裁判官不一定要接納所有未被控方盤問或反駁的證供。高等法院原訟法庭暫委法官彭中屏\n在香港特別行政區對羅潤輝\n[14]\n案，清楚表示：「\nBrowne v Dunn\n法律原則在多宗香港案例已作詳細討論。這法規是要確保答辯人得到公平審訊，為了避免證人可能不明白他的證言不被接納，控方有責任向證人清楚指出控方不同意證人證供的地方，讓證人有機會作出解釋」。\n70.\n雖然控方盤問被告時，沒有直接向被告指出，控方第一證人沒有表現「閃縮」或「鬼祟」，以及被告不是了防止罪案才「搶手機」等等，但本席認為被告是否覺得控方第一證人「閃縮」或「鬼祟」，只是被告自己的感覺；而控方亦明顯不同意，被告覺得控方第一證人正在干犯罪行。本席認為控方就算在盤問被告時，沒有直接向被告指出這方面的案情並不為控方所接納，亦不會對被告產生任何不公平。\n71.\n陳大律師陳述，被告因為真誠相信控方第一證人干犯嚴重犯法行為，為了防止罪案才「搶手機」；不過除了指稱涉及私隱外，被告在庭上其實未有說明，他究竟認為控方第一證人干犯了哪一項嚴重犯法罪行。陳大律師陳述，控方第一證人可能干犯涉及不誠實使用電腦等罪行，或是阻礙立法會議員執行公職。\n72.\n當控方第一證人在電梯大堂見到被告時，她肯定是透過手機，記錄被告的位置；同時，被告亦見到控方第一證人，在手機上按了一下，但除此以外，被告根本沒有看到控方第一證人有其他使用手機的行為。本席不相信，被告當時竟然會因為控方第一證人使用手機的情況，以及沒有正面回答他的問題等表現，聯想到任何偷拍、錄音、錄影，以致將資料傳送至第三方或外間政治組織。\n73.\n除了涉及私隱，控方第一證人當時的行為，根本沒有可能令任何人聯想到她正在以手機犯法。本席認為，案中沒有足夠證供，讓被告有任何客觀的基礎，相信控方第一證人正在以手機犯法；本席不接納，被告當時真誠相信控方第一證人透過或利用手機干犯任何罪行，或干犯不誠實取用電腦的罪行。\n74.\n本席接納立法會議員是公職人員，但不接納被告案發時正在執行公務。控方第一證人當日參與該小組，並按指示觀察和記錄議員位置。當時她站在電梯大堂，並無干涉被告行蹤。當被告主動行近控方第一證人，並問她在做甚麼時，控方第一證人回答:「我做緊嘢」，沒有詳述她的工作是甚麼；被告再問控方第一證人手機屬於誰人，控方第一證人未有正面回答；被告開始「搶手機」時，控方第一證人更不合作。但被告不是執法者，不是警員，亦不是立法會的保安員，沒有任何權力，容許他當時自行蒐證或執法，控方第一證人亦沒有責任回應被告的問題，或者交出她管有的任何物品。\n75.\n立法會議員可以參與立法會的會議，亦可以在會議上提問和投票。案發時，被告是立法會議員，案發地點亦在立法會大樓之內，但被告當時只是路經電梯大堂，控方第一證人沒有作出任何行為干涉或影響被告前往何處，更不可能干預立法會的運作，或者影響立法會的誠信及獨立。\n76.\n被告認為監察小組不當地介入立法會運作。但本席認為，監察小組只是記錄立法會議員在立法會大樓的行蹤，沒有任何證據支持監察小組曾經干擾立法會議員在立法會大樓內的行蹤，或者影響立法會議員履行公務。本席不同意監察小組不當地介入立法會運作。\n77.\n本席肯定被告根本無權調查控方第一證人，被告亦必然明白，他只是立法會議員，不是執法者，不是警員，也不是保安員。被告查問控方第一證人任何事情，並不是執行立法會議員的公務；控方第一證人拒絕回應被告的問題，以及不自行交出手機，亦不可能妨礙被告執行立法會議員的公務，本席不相信被告會不明白此點。\n78.\n基於前述，本席找不到任何客觀的基礎，足以支持被告相信控方第一證人當時正在干犯任何罪行，或影響立法會運作；本席不接納被告當時竟然會真誠相信控方第一證人，正在干犯任何罪行，或影響立法會運作。\n（II）私隱問題\n79.\n本案並非處理政府有否違反私隱法例的問題。本席既不宜、亦不應作出任何相關裁決。但被告在記者會及法庭上，都曾解釋他「搶手機」的行為與政府違反私隱法例有關，因此本裁決不能避免涉及相關的議題。\n80.\n本席接納被告在案發日前，已經留意到監察小組的存在，並作出投訴。根據被告所說，政府及立法會秘書處，基本上沒有回覆，而私隱專員公署亦可能是案發日之後才回覆。既然如此，案中沒有證供支持在案發日之前，有任何機構回覆被告關於他對監察小組的投訴；所以，在案發日之前，根本沒有任何機構曾經表態認同（或不認同）被告的投訴。\n81.\n換言之，直至案發日，被告只是根據自己的觀察及對法例的理解，主觀認為監察小組（或政府） 違反私隱法例。客觀上，沒有任何機構，例如私隱專員公署，認同被告的投訴。\n82.\n成功「搶手機」及閱讀手機的資料前，被告當然不可能預知他可以透過手機找到甚麼資料。因此在被告「搶手機」前，他可以知道的包括監察小組存在了約兩年，並會記錄立法會議員的位置，以及他已向政府表明不同意對方收集自己的資料等。案發時，控方第一證人只是站在電梯大堂，在被告到達時按了手機，而被告顯然明白她正在記錄立法會議員行蹤。立法會大樓雖然不是公開的地方，但亦不是被告的私人地方，他根本無權干涉其他人在立法會大樓內如何作出紀錄。本席認為客觀上，控方第一證人的行為不足以構成侵犯被告私隱，或違反私隱法例。\n83.\n無論如何，案發後被告曾在記者會上，將「搶手機」與私隱問題拉上關係。他在2018年4月25日記者會上，提及他取得手機後「睇下個電話……係有啲咩嘢關於我自己嘅資料」\n[15]\n，亦表示在手機見到70位議員的個人資料，以及自己的個人私隱，並會將資料「轉介俾私隱專員公署作出一個投訴」\n[16]\n。被告亦提及政府收集的資料「必然係侵犯私隱」，而他的立場是「唔同意政府做呢啲行為囉，但當然呢個係我攞嗰個電話嘅動機」\n[17]\n。\n84.\n本席考慮到被告在案發前曾作出的投訴，以及案發後他在記者會的說法，接受被告「搶手機」時，根據他自己的觀察及對法例的理解，主觀認定監察小組（或政府） 違反私隱法例，因而決定「搶手機」，意圖在手機內找出政府違反私隱法例的證據。\n85.\n基於前述，本席接納被告「搶手機」的意圖，是希望在手機內找出政府違反私隱法例的證據。\n（\nE\n）「搶手機」\n對執\n行\n公務的影\n響\n86.\n明顯地，控方第一證人案發日參與該小組，與日常工作不同。綜合控方第一證人、黎惠珊及符傳富的證供，控方第一證人是透過保安局電郵，得知此項工作，並理解各人都需要參與，於是選擇合適她的時間，報名參與該小組，並視此為特別工作。案發日，該小組成員需要站在立法會大樓不同地方，藉着獲發的智能電話，更新立法會議員位置，而黎惠珊的手提電腦，就能顯示出立法會會議室內有多少議員在席，以及不在席的議員，如果仍然身在立法會大樓內，應該在甚麼位置。\n87.\n該小組的工作，肯定是記錄立法會議員在立法會大樓的甚麼位置；而收集這些資料的目的，顯然是為了方便政府人員可以即時確定仍然身在立法會大樓內的立法會議員位置，並在有需要時，立時找到他們，這樣比打電話或whatsapp程式等，更有效立時找到立法會議員。\n88.\n控方第一證人的工作需要使用手機。被告「搶手機」後，控方第一證人不能繼續工作，她獲發iPad已是若干時間之後。最後當符傳富得知手機沒有密碼保護後，決定終止該小組當日的工作，控方第一證人亦沒有再執行該小組的工作。\n89.\n陳大律師認為控方未能證明控方第一證人當時正在執行公務，因控方沒有指明控方第一證人的工作，所依據的是甚麼法定權力。\n90.\n黎惠珊是運輸及房屋局助理秘書長，案發日之前已履行監察小組的工作4至5次，並確認屬於她的工作範圍。在本案審訊時，沒有任何證供質疑監察小組的工作，並不是運輸及房屋局的工作範圍；而陳大律師亦沒有向黎惠珊或符傳富指出，運輸及房屋局的法定權力不能包括監察小組的工作。本席認為，案中沒有足夠證據基礎，足以提出運輸及房屋局沒有權力執行監察小組的工作。\n91.\n控方第一證人、黎惠珊及符傳富的說法合情合理，盤問之下全沒動搖，均是誠實可靠的證人，本席接納他們的說法。\n92.\n本席肯定，監察小組的工作是運輸及房屋局的工作範圍，亦是一項公務。該小組成員於案發日需要使用獲發的智能電話，更新立法會議員位置。案發日，當控方第一證人正在執行公務期間給被告搶去手機，她自然不能繼續執行公務。\n（\nF\n）\n閱\n讀\n及上載\n手機\n資\n料\n93.\n閉路電視錄影可以清楚見到，被告「搶手機」後跑離電梯大堂。被告同意他跑離電梯大堂後進入洗手間，逗留了16分鐘，並閱讀手機資料，發現了數十個檔案，他上載其中5個PDF檔案至日常公務所用的Gmail帳戶。\n94.\n根據本案證供，本席並不清楚監察小組實質由甚麼時間開始運作，以及所收集的資料會保留多久。 但本席相信監察小組運作了至少1至2年，運作期間會記錄哪一位立法會議員身在立法會大樓內，以及在甚麼位置。而5個PDF檔案內含的其他資料，包括議員的座位、所屬政黨、投票的意向等等，顯然是公開資訊，並無秘密可言。\n95.\n本席並不知道政府會保存這些資料多久，但被告在庭上指稱，當進入洗手間後查看手機，發現共有數十個檔案，其中最少有3至5個檔案，資料涉及超過3個月前的紀錄。他「隨意」把其中5個PDF檔案，上載至Gmail帳戶。\n96.\n被告曾於2018年4月25日的記者會上，提及他在「電話」內發現包括「最近3個月……議員出入大樓……紀錄」\n[18]\n，沒有提及發現超過3個月前的紀錄。被告在記者會上，以「包括」兩字去形容他的發現，雖然根據上文下理，被告的意思應該是「只包括」，但控方並沒有對此盤問被告，因此，本席不會基於被告在記者會上的說法，而認為被告在這部分前言不對後語。在考慮被告曾否發現有檔案涉及3個月前的紀錄一事，本席對他在記者會上的說法，不會給予任何比重。\n97.\n但是，被告解釋他「搶手機」的行為，源自他要取得政府違反私隱條例的證據；本席認為，就算被告在洗手間時已主觀認定政府保留涉及1個月前的資料，亦違反私隱條例，但任何正常及合理的人都必然考慮到，保留違反私隱的資料時間愈長，違反私隱的程度愈嚴重。以被告的背景，他沒有理由不選擇上載涉及違反私隱最長時間的檔案。雖然被告亦提及，他當時擔心有人會進入洗手間取回手機，因此未有足夠時間挑選，但是被告選取的5個PDF檔案，都是以日子作為檔案名稱，假如當時被告發現有檔案涉及3個月前的紀錄，他理應沒有困難藉著檔案名稱，選擇較早期的檔案。\n98.\n根據檔案名稱，本席相信被告上載的5個PDF檔案內，時間最早的1個是2018年3月16日\n[19]\n。本席認為，被告當時沒有理由不選擇超過3個月前的檔案，反而選擇5個日子並不遙遠的紀錄。被告的選擇不合常理，並不吻合他聲稱要搜集違法證據的動機。本席不接納他當時找到任何超過3個月紀錄的檔案。\n普通\n襲擊\n99.\n香港特別行政區訴黃毓民\n[20]\n案，高等法院原訟庭張慧玲法官將普通襲擊的法理翻譯為：「襲擊指被告人蓄意或罔顧後果，作出行為令受害人憂慮他當場會遭受即時非法武力。襲擊毋須有身體接觸。若有的話，便是襲擊及毆打，必須切記是襲擊與毆打是獨立的罪行。」\n100.\n陳大律師陳述，控方未能在毫無合理疑點下證明，被告令控方第一證人憂慮自己會當場遭受即時及非法武力侵犯，或被告罔顧控方第一證人是否憂慮受到武力侵犯。無論如何，基於防止罪案發生及真誠相信控方第一證人正在犯罪，被告有免責辯護。\n101.\n陳大律師指出，被告原意並非想接觸控方第一證人的身體，心態不是要讓控方第一證人憂慮將遭受即時及非法的武力侵犯，被告目的是要取得A4紙及手機。\n102.\n事實上，被告同意他「搶手機」時，與控方第一證人有身體接觸，但他解釋他只是意料不到控方第一證人會如此奮力保護手機。\n103.\n在一般情況下，所有正常及合理的人都必然意料到，任何人如果被人搶奪物品，都可能會保護物品。以被告的背景，本席不相信被告意料不到控方第一證人會奮力保護手機，特別是被告根本不可能預知手機並非控方第一證人的私人物品，因為根據控方第一證人所說，被告在「搶手機」前問過手機屬誰，她沒正面回應，只重複說她正在工作；而被告在庭上，亦同意他「搶手機」之前，不肯定手機屬誰。換言之，就算被告估計手機應該是政府公物，他「搶手機」之前根本不可能確定。\n104.\n無論手機是否政府公物，控方第一證人從來沒有表示她同意被告可以取去。控方第一證人奮力保護手機合情合理，亦理應是被告意料之內有可能發生的事情。\n105.\n本席認為，被告應該知道控方第一證人有可能奮力保護手機，但仍然決定強搶；本席亦認為，被告應該知道強搶手機時，有可能與控方第一證人有身體接觸；特別是當被告開始「搶手機」後，控方第一證人明顯左閃右避，被告當時更不應該預料不到，繼續「搶手機」的行為將有機會接觸到控方第一證人的身體。綜合所有證供，本席肯定，被告當時一心希望成功搶得手機，從而找出政府違反私隱法例的證據，完全罔顧了「搶手機」的行為會接觸到控方第一證人的身體，以及引致她感到憂慮及驚惶。\n106.\n本席已經裁定，「搶手機」的過程引致雙方有身體接觸，亦令到控方第一證人感覺憂慮及驚惶，在這情況下，控方第一證人當時必然憂慮她當場會遭受即時非法武力。\n107.\n綜合所有證供，本席肯定被告罔顧了「搶手機」的行為將會接觸到控方第一證人的身體，並引致她憂慮當場將遭受即時非法武力。事實上被告的行為確實接觸到控方第一證人不同的身體部位，並引致她感到憂慮及驚惶。\n108.\n陳大律師在結案陳詞後，傳真信件至法庭作進一步陳詞，大意上指稱控方沒有在普通襲擊控罪及罪行詳情，指明控告被告的普通襲擊控罪，包括以「罔顧」為基礎。陳大律師作進一步陳詞前，沒有嘗試先找尋求法庭指示，當然亦未有法庭批准，自行以書信方式進行，做法並不恰當。\n109.\n無論如何，控方其實從未選擇只基於被告「蓄意」襲擊控方第一證人作為檢控基礎。按照Archbold Hong Kong 2019\n[21]\n, 普通襲擊的標準控罪詳情只包括某人於某日襲擊另一人\n[22]\n，無需選擇是「蓄意」（intention） 還是「罔顧」（reckless）。\n110.\n另外，被告亦聲稱他認為控方第一證人正在干犯罪行，為了阻止她犯法及取得證據，決定「搶手機」。本席已經裁定，不接納被告當時真誠相信控方第一證人正在干犯任何罪行，以致影響立法會運作等等。本席不接受被告有任何免責辯護。\n111.\n本席只接納被告「搶手機」的動機，與他主觀認定監察小組（或政府） 違反私隱法例有關，並意圖在手機內找出政府違反私隱法例的證據。\n112.\n《刑事訴訟程序條例》\n第101條\n，的確訂明在某些情況下，任何人都可以逮捕干犯「可逮捕的罪行」（arrestable offence） 的人，並「須將如此逮捕的人及他已取得管有的財產（如有的話）交付警務人員」。根據\n《釋義及通則條例》\n第3條\n，「可逮捕的罪行」是「指由法律規限固定刑罰的罪行，或根據、憑藉法例對犯者可處超過12個月監禁的罪行」。\n113.\n被告指稱控方第一證人犯法，極其量只可能違反私隱條例，或侵犯私隱，但根據《個人資料（私隱）條例》\n第64A（2）條\n，違反保障資料原則並不直接構成「可逮捕的罪行」。縱使被告進入電梯大堂後，相信控方第一證人以手機記錄立法會議員（包括被告自己）的行蹤，控方第一證人極其量只涉及侵犯私隱或違反私隱法例，沒有干犯「可逮捕的罪行」。\n114.\n本案沒有任何證供支持被告有權「逮捕」控方第一證人，或有權「取得」控方第一證人管有的任何物品。就算（但本席不同意）被告可以根據\n《刑事訴訟程序條例》\n第101條\n強行取去手機，他亦只能交付警務人員，無權自行閱讀或上載手機資料。\n115.\n本席同意，當發現有人正在干犯「可逮捕的罪行」時，任何人都可以（甚至應該），行使適當武力，阻止犯人繼續犯法,又或者進行自衛，免受傷害；但本席不接納被告「搶手機」的行為，與他聲稱相信控方第一證人干犯罪行、阻止他人犯法或者影響立法會運作有關，他只不過希望透過手機找到政府違反私隱法例的證據。\n116.\n沒有任何法例賦予被告權力，容許他當時自行蒐證或執法，因此，縱使他真誠相信他人違反私穩法例，亦不可以强搶他人物品。立法會議員並沒此方面的權力。本席找不到任何法理支持被告「搶手機」的行為。被告的行為肯定是非法的武力。\n117.\n基於前述，控方已在毫無合理疑點下，證明所有普通襲擊罪的控罪元素。本席裁定此項控罪罪名成立。\n阻礙公職人員執行公務\n118.\n根據\n《釋義及通則條例》\n第3條\n，公職人員（public officer）指任何在特區政府擔任受薪職位的人。控方第一證人是保安局高級行政主任，必然是公職人員。本席接納案發當日該小組負責在立法會大樓不同位置，觀察立法會議員身在何處，控方第一證人需要透過手機作出紀錄。本席裁定控方第一證人當時正在依法執行公務。\n119.\n陳大律師陳述，控方未能在毫無合理疑點下，證明被告的行為構成阻礙。\n120.\n高等法院原訟法庭暫委法官黃崇厚（當時官階），在\n香港特別行政區訴尹明義\n[23]\n案指出，\n《簡易程序治罪條例》\n第23條\n和\n《侵害人身罪條例》\n第36（b）條\n的罪行不同，因為\n《簡易程序治罪條例》\n的條文中，沒有「故意」（wilful）這字眼，所以控方毋須證明被告人故意阻礙執行公務，意即毋須證明阻礙執行公務是被告人進行某行為的意圖（intention）。以\n《簡易程序治罪條例》\n第23條\n這罪行來說，控方只須證明被告人有意地或魯莽地進行一種或一些行為，而這等行為的確阻礙了公務的執行。\n121.\n《簡易程序治罪條例》\n沒有對「阻礙」作定義。終審法院在\nHKSAR v Tam Lap Fai\n[24]\n案中，就妨礙警務人員執行職務的控罪，指出妨礙（obstructing）的準則，為增加一名警務人員履行職責時的難度。終審法院說明，僅對警員構成不便，或令其須稍加費力的行為，並不構成妨礙。但控方不須證明，有關行為大大增加警員執行工作時的難度。是否構成妨礙是事實的問題，需要考慮被告人做過甚麼、他怎樣做、警員在做甚麼，以及被告人的行為對於該警員的行為造成甚麼影響。\n122.\n無可否認，被告搶去手機的行為，令控方第一證人不能繼續進行記錄，對控方第一證人而言並不只構成不便或須稍為費力，而是實質上阻礙控方第一證人繼續工作。而控方第一證人失去手機後，雖獲發iPad，但亦已是若干時間之後的事情。本席裁定被告搶去手機的行為，阻礙控方第一證人執行公務。\n123.\n事實上，本席亦肯定控方第一證人早已表明自己在「做緊嘢」，因此被告必定明白，當時控方第一證人正在工作。但被告仍然搶去手機，並管有手機10多分鐘後，才交給符傳富。根據本案證供，本席肯定被告「搶手機」前必然認定，控方第一證人以手機記錄他的行蹤，因此他必定明白，當搶去手機後，控方第一證人不可能繼續記錄立法會議員在立法會大樓內的位置。\n124.\n本席肯定被告有意地搶去手機，並在成功搶去手機後跑進洗手間內逗留16分鐘，當時他必定知道後果就是阻礙控方第一證人繼續執行公務。\n125.\n本席已裁定被告沒有任何免責辯護。\n126.\n基於前述，本席肯定控方已在毫無合理疑點下，證明所有阻礙公職人員依法執行公務罪的控罪元素。本席裁定此項控罪罪名成立。\n目\n的\n在於使其本人或他人\n不誠實\n地\n獲益\n而\n取用電腦\n127.\nHKSAR\nv Tsun Shui Lun\n[25]\n案指出\n《刑事罪行條例》\n第161條\n中「獲益」的定義寬闊，涵蓋無形的利益，可包含被告取用前沒有的資訊，無論短暫在屏幕顯示，還是打印或複製至永久儲存體。簡言之，控方須證明被告取用電腦的目的，在於使其本人或他人不誠實地獲益，而獲益可包括取得該人之前並未掌握的資料。\n128.\n案發前被告肯定不清楚手機內有甚麼資料，搶手機後他在洗手間閱讀手機資料，並把其中5個檔案上載至自己的Gmail帳戶，肯定符合「獲益」的定義。\n129.\n手機是智能電話，安裝了谷歌試算表應用程式，並可透過試算表更新立法會議員的行蹤；而任何更新都會經由Wi-Fi網絡，同步上載至谷歌雲端硬盤帳戶。本席接納案中證供，已足夠肯定手機符合「電腦」的定義。\n130.\n就此控罪，陳大律師其實只爭議本案有否足夠證供證明被告有不誠實意圖及有否免責辯護。本席已裁定被告沒有任何免責辯護。\n131.\n不誠實的準則是採用\nGhosh\n[26]\n案的指引，即以下兩個考慮：\n(1) 被告所做的以一個明理而誠實的人的準則來衡量是否不誠實;\n(2) 被告本身是否必定意識到明理而誠實的人，當會認為他所做的是不誠實的。\n132.\n終審法院在\nHKSAR v Alistair Charles Currie案\n[27]\n的許可申請中指出，動機不是控罪原素之一。陳大律師亦同意，「道德理由不足以支持沒有不誠實的意圖」\n[28]\n。\n133.\n縱使被告搶去手機，與不滿意被其他人知道他身處立法會何處有關，或主觀認定有人違反私隱條例，或認為可以跟進已作的投訴，但是明理而誠實的人必然明白，在未得他人同意下，搶去他人手提電話，擅自閱讀及上載其中的資料，並不正確，必然是不誠實的。\n134.\n本席肯定，被告搶去控方第一證人手上的手機，並在未經授權下，閱讀內裡的資料及上戴檔案至Gmail帳戶，就算有關檔案內的資料只包含公開的資訊，明理而誠實的人都必定會認為這是不誠實的。\n135.\n本席亦肯定被告必然明白，擅自取得他人手提電話，並且閱讀內裡的資料及上載其中的檔案至自己的電郵帳戶，並不誠實，否則他沒有理由刪除他曾經將手機的檔案上載至Gmail帳戶的紀錄。被告解釋，如果政府知道他已掌握了政府違法檔案，他擔心政府會有所準備，先發制人，以致毀滅、竄改紀錄。但被告既已上載了檔案，並相信已掌握了政府違法證據，他只需公佈事件，已足夠令政府不敢毀滅或竄改違法的檔案，根本不需要刪除他曾經將檔案上載至Gmail帳戶的紀錄。本席不接納被告刪除他曾經將檔案上載至Gmail帳戶的解釋。\n136.\n陳大律師亦陳述，被告知道立法會大樓有閉路電視，由此可以推斷被告當時認為自己正在做正當的行為，沒有不誠實的意圖；但是當被告閱讀手機的資料及上載檔案時，他其實身處洗手間內，根本不可能是閉路電視覆蓋的範圍。\n137.\n基於被告的背景，他必然明白，明理而誠實的人，肯定會認為他所做的是不誠實的。\n138.\n陳大律師亦陳述，控方沒有在盤問被告時指出被告不誠實。正如前述，本席不一定要接納所有未被控方盤問或反駁的證供。\n139.\n在本案中，綜合控方對被告的盤問，控方明顯不認同被告有任何合法理據，容許他可以擅自閱讀手機資料及上載檔案。控方雖然沒有直接向被告指出，他在洗手間內閱讀及上載手機的檔案是「不誠實」，但被告既不可能不明白控方的立場，亦不可能因此有任何不利。本席看不到被告受到不公平的審訊。無論如何，被告是否不誠實，根本不在於他自己覺得自己是否不誠實，控方也沒有必要直接向被告指出他是不誠實。\n140.\n綜合所有證供，本席肯定被告有不誠實的意圖。本席肯定由始至終，被告只是希望找到政府違反私隱的證據，因此才搶手機，沒有任何免責辯護。\n141.\n控方已在毫無合理疑點下，證明所有不誠實地獲益而取用電腦罪的控罪元素。基於前述，此項控罪罪名成立。\n鄭念慈\n裁判官\n法律代表：\n由律政司高級檢控官柏愛莉代表香港特別行政區\n由屈漢驊律師事務所轉聘陳偉彥大律師代表被告人\n[1]\n證物P1\n[2]\n即thbmarshalling@gmail.com\n[3]\n證物P2\n[4]\n證物P8\n[5]\n證物P9\n[6]\n證物P4至P7\n[7]\n證物P22 cam 283, 時間094130-094234\n[8]\n證物P27\n[9]\n證物P22 cam 283, 時間094154\n[10]\n證物P22 cam 283, 時間094203\n[11]\n證物P22 cam 283, 時間094217\n[12]\n(1893) 6 R 67\n[13]\nFAMC 68/2011, 2012年2月24日，未經𢑥編\n[14]\n[2018] HKCFI 1116\n[15]\n見MFI-1, 第4頁\n[16]\n見MFI-1, 第6頁\n[17]\n見MFI-1, 第14頁\n[18]\n證物P8及MFI-1第4頁\n[19]\n檔案名稱為Meetingon20180316(BC).pdf\n[20]\n[2018] HKCFI 1883\n[21]\n參Archbold Hong Kong (2019), 20-172 段\n[22]\n原文是\n“AB, on the ___ day of __20__, assaulted JN”\n[23]\n[2012] 5 HKLRD 221\n[24]\n(2005) 8 HKCFAR 216\n[25]\n[1999] 3 HKLRD 215\n, 224B-D\n[26]\n[1982] QB 1053\n[27]\nFAMC No. 57/2004，2015年1月14日，未經𢑥編\n[28]\n被告的結案陳詞第14段", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2018/ESCC002544_2018.docx", + "file_name": "ESCC002544_2018.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkmagc/2019_HKMagC_4/case.json b/zh_cases_hkmagc/2019_HKMagC_4/case.json new file mode 100644 index 0000000..2df4ab8 --- /dev/null +++ b/zh_cases_hkmagc/2019_HKMagC_4/case.json @@ -0,0 +1,26 @@ +{ + "Date": "11 Sep, 2019", + "Action No.": "WKCC3654/2017", + "Neutral Cit.": "[2019] HKMagC 4", + "case_title": "香港特別行政區 訴 吳文遠及另七人", + "page_title": "香港特別行政區 訴 吳文遠及另七人 | [2019] HKMagC 4 | HKLII", + "case_history": [ + { + "name": "WKCC3654/2017", + "link": "https://www.hklii.hk/tc/appealhistory/WKCC/2017/3654" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkmagc/2019/4", + "neutral_cit": "[2019] HKMagC 4", + "court_code": "HKMAGC", + "content": "WKCC3654A/2017 香港特別行政區 訴 吳文遠及另七人\nWKCC 3654/2017\n[2019] HKMagC 4\n香港特別行政區\n西九龍裁判法院\n刑事案件編號2017年第3654號\n______________________\n香港特別行政區\n訴\n吳文遠\n第一被告\n葉志衍\n第二被告\n陳文威\n第三被告\n盧德昌\n第四被告\n周嘉發\n第六被告\n林淳軒\n第七被告\n鄭沛倫\n第八被告\n林朗彥\n第九被告\n______________________\n主審裁判官：\n黃雅茵裁判官\n聆訊日期：\n2018年7月9、10、11、16、17、18及25日；\n8月20、21、22、27、28及29日；\n9月18、19及24日；11月2日\n裁決日期：\n2019年5月15日\n判刑日期：\n2019年9月11日\n判刑理由\n1.\n經審訊後，本席裁定以下被告人就以下控罪罪名成立：\n第一被告人：\n第一項控罪 （煽惑他人參與非法集結）\n第四項控罪 （煽惑他人參與非法集結）\n第二被告人：\n第三項控罪 （參與非法集結）\n第六項控罪 （阻撓在正當執行職務的警務人員）\n第三被告人：\n第三項控罪 （參與非法集結）\n第四被告人：\n第三項控罪 （參與非法集結）\n第六被告人：\n第六項控罪 （阻撓在正當執行職務的警務人員）\n第八被告人：\n第十項控罪 （參與非法集結）\n2.\n此外第七及第九被告人已在審訊前就以下控罪認罪：\n第七被告人：\n第九項控罪 （煽惑他人在公眾地方作出擾亂秩序的行為）\n第九被告人：\n第十項控罪 （參與非法集結）\n3.\n裁決原定於2019年3月6日宣讀，但因辯方大律師另一宗高等法院的案件日程改變，本案裁決須押後至2019年5月15日。本席於當天聽取辯方求情後，為部分被告人索閱社會服務令報告。因應西九龍法院日程及各區保安人手安排，延至2019年9月11日判刑。\n案件背景\n4.\n案件涉及在2016年11月6日舉行的反釋法遊行期間，於三個不同時段（下稱事件一、事件二及事件三）在干諾道西西行方向行人路上的指定公眾活動區（下稱「公眾活動區」）所發生的事件。\n5.\n民間人權陣線於2016年11月6日下午約3時在灣仔盧押道的指定公眾活動區舉辦「反對全國人民代表大會就基本法釋法」的公眾集會。於下午3時30分，相關之遊行於盧押道的指定公眾活動區開始。\n6.\n於下午4時許，部分於中環皇后大道中的遊行人士沒有轉入銀行街以前往原定之遊行終點，即皇后像廣場及皇后像廣場與終審法院之間的行人通道。他們繼續沿皇后大道中和皇后大道西，向着中央人民政府駐香港特別行政區聯絡辦公室（下稱「中聯辦」）的方向遊行。\n7.\n遊行隊伍沿皇后大道中及皇后大道西前進，然後右轉進入朝光街，再右轉進入德輔道西，繼而左轉進入西邊街，最後再左轉沿行人路進入於干諾道西行人路上的公眾活動區。\n8.\n當到達西邊街和干諾道西交界時，遊行人士遇到警方設置在行車路面上的鐵馬，不能沿行車路面前行。但他們可通過於該交界處由預先拆除防撞欄所造成的缺口（下稱「該缺口」），步上西邊街北行方向行人路，進入設置於干諾道西西行方向行人路上的公眾活動區。\n9.\n當時警方希望先集合示威人士在公眾活動區，找出遊行隊伍的負責人，從而分批有序地安排遊行人士到中聯辦外表達訴求。\n10.\n控辯各方均同意，\nSecretary for Justice v Wong Chi Fung\n[2018] HKCFAR 35, 2018年2月6日的判決 （下稱「黃之鋒案」）內對於涉及暴力的非法集結控罪之判刑指引並不適用於本案。本席同意，因黃之鋒案的判刑指引是在本案案發日期後才頒布。本案涉及的各項控罪均沒有適用的判刑指引。根據以往的案例，判刑從罰款、社會服務令、緩刑至即時監禁不等。\n第一被告人\n11.\n第一被告人干犯第一項控罪，即煽惑他人參與非法集結，違反普通法及香港法例\n第245章\n《公安條例》\n第18條\n，並可根據香港法例\n第221章\n《刑事訴訟程序條例》\n第101I條\n予以懲處。第一項控罪源起於事件一。案情顯示第一被告人在進入公眾活動區後，坐在鐵馬上，向遊行人士作以下呼籲：「我哋人多過警察呀，就咁爬出去就得㗎啦，前面block死晒呀」（同時指向西面），「爬出嚟就得㗎啦」（手指向着身後的馬路方向移動並作出手勢）。\n12.\n第一被告人之後向遊行人士呼籲「各位，而家人多過警察，我哋沿住呢度分散爬出黎就得㗎喇。」「…各位朋友前面係聚晒警察，佢唔會俾個我哋過去中聯辦門外㗎喇。我哋多次要求警方放一條行車線俾我哋慢慢行過去，警方唔俾。但係今日我哋人係多過警察數以十倍嘅，所以我哋好冷靜，呢條鐵馬唔需要拉，唔需要（？），鎖住咗嘅。我哋慢慢有秩序咁樣爬過鐵馬，去第一條行車線嗰度。」\n13.\n在第一被告人作出呼籲後，第二、第三及第四被告人及一名穿紅色上衣的不知名男子站上鐵馬，用力拉扯面前的鐵馬。\n14.\n雖然遊行人士若爬過鐵馬，有可能與正在道路上行駛的車輛碰撞，而呼籲示威人士爬過警方防線的鐵馬必定涉及一定程度的暴力，但可幸響應第一被告人呼籲的人數不多，混亂情況維持時間並不長，響應人士未能成功把鐵馬移離原位或爬過鐵馬。當時單靠警員徒手已足夠使該數名人士返回地面，故影響相對輕微。\n15.\n第一被告人的代表大律師在求情時指第一被告人在案發時沒有刑事定罪紀錄，再犯的機會甚低。\n16.\n雖然沒有任何證據顯示第一被告人在事件中有事先策劃行動的角色，但考慮了以上提及的案件性質，包括示威者若到達行車線時與行駛中汽車碰撞的可能性，以及第一被告人在煽惑事件中作出呼籲的帶頭角色，本席認為以社會服務令處理本控罪並不適合。在進一步考慮上述事件對公眾的影響較輕，響應呼籲的人數不多，加上並沒有證據顯示任何人因事件而受傷，或有任何財物因此而受到損壞，法庭認為緩刑是合適的刑罰。\n17.\n就第一項控罪，本席採納14天監禁為量刑基準，經考慮後認為沒有其他因素可把刑期縮短，裁定第一被告人就此控罪判監14天，緩刑12個月。\n18.\n第一被告人亦干犯了第四項控罪，即煽惑他人參與非法集結，違反普通法及香港法例\n第245章\n《公安條例》\n第18條\n，並可根據香港法例\n第221章\n《刑事訴訟程序條例》\n第101I條\n予以懲處。第四項控罪源起於事件二。案情顯示第一被告人爬上並蹲在鐵馬頂部，使用一支咪向着背後的馬路做出手勢，並說「爬出去啊」。陸嘉永督察於是警告第一被告人。之後第二及第六被告人先後爬上鐵馬頂部；而第二被告人爬上鐵馬及用手勢及言語說「爬啦！」，向旁邊的人羣示意。\n19.\n本席考慮了與第一項控罪共通的求情因素，以及本控罪所涉事件二的案情。與第一項控罪相同之處是第一被告人作出呼籲的帶頭角色、現場環境及與汽車碰撞的危險因素，故此以社會服務令處理本控罪並不適合。在進一步考慮響應第一被告人呼籲而爬上鐵馬的只有第二及第六被告人，之後於事件二中發生雙方拉扯第一被告人的情況亦非第一被告人所能預見；加上並沒有證據顯示任何人因事件而受傷，或有任何財物因此而受到損壞，法庭認為緩刑是合適的刑罰。\n20.\n就第四項控罪，本席採納14天監禁為量刑基準，裁定第一被告人就此控罪判監14天，緩刑12個月。\n21.\n由於兩項控罪源於同一事件，性質亦相同，故本席認為兩項控罪的刑期應同期執行。第一被告人在本案中共被判處監禁14天，緩刑12個月。\n第二被告人\n22.\n第二被告人干犯第三項控罪，即參與非法集結，違反香港法例\n第245章\n《公安條例》\n第18條\n，以及第六項控罪，即阻撓在正當執行職務的警務人員，違反香港法例\n第212章\n《侵害人身罪條例》\n第36（b）條\n。他經審訊後被裁定該兩項控罪罪名成立。\n23.\n第二被告人29歲，曾受專上教育，為自僱人士，現與家人同住。\n24.\n本席為第二被告人索閱了社會服務令報告。感化主任考慮了第二被告人一向行為良好，在本案前並沒有任何刑事定罪紀錄，具充足的家庭支持，以及有穩定職業，向法庭建議第二被告人接受中等長度（即80至160小時）之社會服務令。第二被告人願意接受社會服務令。\n25.\n第三項控罪的案情顯示，第二被告人爬上並猛力搖動鐵馬，藉此以行動衝擊及企圖破壞警方防線。\n26.\n就第三項控罪，辯方在求情時表示第二被告人並非事件一中參與程度最大的人士，亦在不久後與警方合作。辯方亦指社會安寧並沒有被破壞。\n27.\n本席認為第二被告人在事件一中搖動鐵馬的時間相對較短，並沒有把鐵馬成功移離原位。過程中警員只須徒手便可控制第二被告人的行動，並令他返回地面。雖然他作出擾亂秩序的行為，而該行為相當可能導致在場人士合理地害怕包括第二被告人的集結者會藉他們的行為激使他人破壞社會安寧，但沒有任何證據顯示警方人員或其他人士因此而身體受傷或財物受損。本席認為他的行為比同類型案件的情節較輕。\n28.\n考慮到以上案情、所有求情理由和社會服務令報告的內容，以及第二被告人年紀尚輕且沒有刑事定罪紀錄，本席並不會以罰款處理第三項控罪，因當時鐵馬的位置與行車中的路面只有一條行車線之隔，若第二被告人越過鐵馬，有機會令他或面前的警員與行駛中的汽車發生碰撞，其潛在危險不容忽視。不過，本席認為，綜合考慮各項因素後，就第三項控罪判處第二被告人100小時社會服務令是適合的。\n29.\n第六項控罪的案情顯示，在警員阻止第一被告人呼籲遊行人士爬過鐵馬時，第二被告人用手拉着第一被告人的身體，跟警員搶奪第一被告人，阻止第一被告人被警方帶走。\n30.\n就第六項控罪，辯方大律師指當時情況混亂，第二被告人並非有預謀下行事。\n31.\n法庭認為第六項控罪涉及阻止警方帶走涉案人士的行為，案情嚴重，並不可以罰款處理。但考慮到第二被告人搶奪第一被告人的過程並不算太長，而且沒有任何證據顯示警方人員因此而身體受傷或財物受損。基於第二被告人良好的背景，以及感化主任的建議，就第六項控罪本席判處第二被告人100小時社會服務令。\n32.\n由於控罪三及控罪六是源於一連串發生的事件，案件背景亦完全相同，兩件事件在時間上相隔不遠，法庭認為可以同期執行的社會服務令處理。故此第二被告人就第三及第六項控罪須接受同期執行的100小時社會服務令。\n第三被告人\n33.\n第三被告人經審訊後被裁定第三項控罪罪名成立。第三項控罪為參與非法集結，違反香港法例\n第245章\n《公安條例》\n第18條\n。案情顯示他搖動並企圖爬過鐵馬，試圖越過警方防線。\n34.\n第三被告人現時25歲，持副學士學位，為工黨傳訊幹事，與家人同住。他在本案前並沒有任何刑事定罪紀錄。\n35.\n辯方在求情時指，第三被告人在事件一中並非首要角色，他亦在事發不久後與警員合作，社會安寧並沒有被破壞。辯方亦指第三被告人是就社會議題行使公民權利。\n36.\n第三被告人的社會服務令報告記述，第三被告人一直奉公守法，沒有不良嗜好，並給予母親重大的經濟支持。他的努力得到母親及上級的認同。第三被告人就本案向感化主任坦承過失，表示悔意，今後將以守法的方法表達意見。他願意接受社會服務令。感化主任建議判處第三被告人短期（即少於80小時）的社會服務令。\n37.\n本席認為第三被告人在事件一中搖動鐵馬的時間短暫，並沒有把鐵馬移離原位，亦沒有成功爬過鐵馬。過程中警員只須徒手便可控制第三被告人，以及令他停止越過鐵馬並返回地面。沒有任何證據顯示警方人員或其他人士因此而身體受傷或財物受損。本席認為他的行為比同類型案件的情節較輕。\n38.\n本席考慮了案情、第三被告人良好的背景、一直以來為人處事的態度、他表達的悔意，以及感化主任的意見，判處第三被告人60小時的社會服務令 。\n第四被告人\n39.\n第四被告人經審訊後被裁定第三項控罪罪名成立。第三項控罪為參與非法集結，違反香港法例\n第245章\n《公安條例》\n第18條\n。\n40.\n案情顯示第四被告人於事件一中爬上並猛力搖動鐵馬，以行動衝擊及企圖破壞警方防線。\n41.\n社會服務令報告提到，第四被告人曾接受中學教育，其後再作進修。他現時在補習社擔任導師，有穩定收入。他並沒有不良習慣。在本案前他沒有任何刑事定罪紀錄。他向感化主任表示當日在衝動下行事，沒有考慮法律後果。對於所做的事引致母親擔心，被告人感到後悔。他亦表示將來會以合法和平的方法與他人分享自己的意見，並承諾不會再次干犯法律。他願意接受社會服務令，但於報告撰寫時不能確定他的身體狀況是否適合履行社會服務令，故此感化主任並不建議社會服務令。\n42.\n在本席前第四被告人的代表律師表示醫生已確定第四被告人不需進行手術，亦適合作簡單的義務工作。本席考慮了案情、第四被告人良好的背景 、他非法的行為只維持短時間、其角色屬參與者而非領導者，以及他對事件的反省，判處第四被告人100小時的社會服務令。\n第六被告人\n43.\n第六被告人經審訊後被裁定第六項控罪罪名成立。第六項控罪為阻撓在正當執行職務的警務人員，違反香港法例\n第212章\n《侵害人身罪條例》\n第36（b）條\n。\n44.\n案情顯示，在警員阻止第一被告人呼籲遊行人士爬過鐵馬時，第六被告人用雙手拉着第一被告人的身體，跟警員在一段短時間內搶奪第一被告人，阻止第一被告人被警方帶走。\n45.\n第六被告人現時27歲。社會服務令報告及求情陳詞顯示，第六被告人曾受大學教育，在大學階段參與過學生會及示威活動。投身社會後，他對社會議題甚為關注，選擇不加入專業人士行列，轉而參與社會運動並加入社民連工作，成為副秘書長。自本案發生後，他專注於工作，為公司東主，有穩定收入。第六被告人對當日引起混亂致歉。他對自己的行為令父母失望而感到悲傷。他願意以無償的社會服務令補償自己的過失。\n46.\n他在本案前並沒有任何刑事定罪紀錄。另外他有8次拾獲財物後向警方報案的紀錄，當中大部分均能協助尋回物主。\n47.\n感化主任建議第六被告人接受中等長度（即81至160小時）的社會服務令。\n48.\n本席考慮了案情、第六被告人良好的背景、他非法的行動只維持短時間、當時事出突然及其穩定的生活，以及他對事件的反省，就第六項控罪判處第六被告人接受100小時的社會服務令。\n第七被告人\n49.\n第七被告人在審訊前承認第九項控罪，即煽惑他人在公眾地方作出擾亂秩序的行為，違反普通法及香港法例\n第245章\n《公安條例》\n第17B（2）條\n並可根據第221章\n《刑事訴訟程序條例》\n第101I條\n予以懲處。\n50.\n第七被告人所承認的第九項控罪是針對事件三中發生的事情。他承認的案情撮要提及，他參與在2016年11月6日從灣仔盧押道起步的公眾遊行。他與其他遊行人士進入於干諾道西的指定公眾活動區。約45分鐘後，他使用揚聲器發言，完畢後高叫口號：「反對人大釋法！直搗中聯辦！」其他遊行人士呼叫同一口號和應。\n51.\n當第七被告人正在高呼第三次口號，他的身旁約30名遊行人士突然同時朝着由警方設置分隔遊行人士與干諾道西交通的一排鐵馬封鎖線推進，並衝擊及爬上鐵馬。第七被告人亦同時轉身朝着鐵馬推進。這時第七被告人和其身旁的第九被告人與鐵馬只相隔三至四個人的身位。雖然警方多次警告衝擊者不要衝擊警方封鎖線，但衝擊者沒有理會，繼續將鐵馬推向干諾道西的行車線。當時有遊行人士喊叫：「上啊！衝呀！開路！ 」此時第七被告人與鐵馬相隔一至三個人的身位，原本背向鐵馬的第七被告人轉身朝着鐵馬推進。第九被告人亦用雙手握緊鐵馬，並用力推向一名警員。當時第九被告人身旁有約30人同時推向鐵馬。\n52.\n衝擊中，一些衝擊者將物品（包括水樽及雨傘）擲向警方。警方多次發出警告，著令衝擊者停止衝擊，否則會使用武力，但沒有效用。警方曾施放胡椒噴霧，但遭衝擊者打開雨傘阻擋。\n53.\n衝擊持續約20分鐘才大致停止，之後衝擊者只是站着與警方對峙。最後鐵馬被衝擊者由行人路邊的原來位置推至干諾道西兩條行車線的第一條，導致兩條行車線的交通受阻。\n54.\n第七被告人現時25歲。社會服務令報告顯示，第七被告人在十多歲時患上血癌，其後康復。他自16歲起參與社會運動，希望服務有需要人士，並為社會帶來正面改變。他在2016年成為政黨的其中一名創辦人。他現在明白從前採用的方法並不正確，故此自2017年已中止所有政治聯繫並停止參與社會運動。他在本案發生後患上適應障礙症，接受治療至2019年3月。他表示願意接受社會服務令，希望案件盡快完結，好讓生活重回正軌。他亦承諾不會再次干犯法律。\n55.\n感化主任考慮了案發時第七被告人年紀尚輕，在本案前沒有刑事定罪紀錄，以及表達悔意，向法庭建議判處少於80小時的社會服務令。\n56.\n此外，辯方亦呈上多封由第七被告人、他的母親、中學和大學老師和教授，以及僱主撰寫的求情信。第七被告人希望返回校園完成學業，以另一種方式貢獻社會。而其他求情信件均提及第七被告人從小經歷病患，卻關心身邊弱小；品格謙厚，努力工作和學習，卻因年輕人的衝動而干犯本案。\n57.\n本席認為事件三是案中三件事件中較嚴重的。事件三牽涉約30名衝擊者，擾亂秩序的情況長達約20分鐘，亦有遊行人士向警方拋擲物品。但即使事件三的案情較嚴重，法庭仍需就個別被告人的角色、個人背景，以及在拘捕後對事件有否認真反省一一作出考慮，以達致適當的判刑。\n58.\n本席認為無可置疑的是，第七被告人擔當了事件中的領導角色。然而，鑒於第七被告人背景良好，從年少時已積極面對人生；案發時他年紀尚輕，因一時衝動犯案，其後因此事患上適應障礙症，為此吃了不少苦頭，治療在2019年3月才告完成；他作出深切反省，並表達強烈意欲完成學業；他於審前覆核已向法庭表示將坦白認罪以表悔意；沒有證供顯示有任何人受傷或財產受損；經考慮以上種種因素，法庭認為應給予第七被告人一次機會，讓他以社會服務令補償自己的過錯。但考慮到案情，法庭認為感化主任建議的時數過低，故以80小時的社會服務令判處第七被告人。\n第八被告人\n59.\n第八被告人經審訊後被裁定第十項控罪罪名成立。第十項控罪為參與非法集結，違反香港法例\n第245章\n《公安條例》\n第18條\n。\n60.\n案情顯示在事件三中，第八被告人衝向鐵馬前的首排，與大量遊行人士一起突然推向鐵馬另一邊的警方。鐵馬被推至佔據整條干諾道西左一線及部份左二線，警員需從左一線退至左二線，只餘下外面的一條行車線可作通車。有一些巴士和其他車輛因而慢駛，後期甚至被堵塞在左三線上。警員向遊行人士使用胡椒噴霧。現場有遊行人士向警方方向潑灑液體及投擲膠樽。\n61.\n第八被告人現時24歲，在案發時為大學的學生會會長，現已畢業。他投身社運多年，一直沒有刑事定罪紀錄。辯方表示第八被告人認為自己身為學生會主席，須到示威現場協助及保護學生。由於示威人士身處有限空間而鼓譟，事件其後的發展是他的意料之外。辯方亦呈上由大學校長、校董會主席、學生服務中心總監和副總監替第八被告人撰寫的求情信。信中提及第八被告人有責任感、具領導才能、關懷別人和熱心服務。\n62.\n本席認為，事件三的規模、事件維持的時間、參與人數、須以對應的警方武力程度、對交通的影響，以及引發意外的機會皆比事件一嚴重許多。故即使考慮了第八被告人屬初犯，對參與事件三的第八被告人之判刑必須反映事件三的嚴重性，故罰款及社會服務令並不合適。\n63.\n不過，考量了第八被告人的年齡、良好的背景、作為參與者而非領導者的角色和他到現場的目的，加上沒有證供顯示有任何人受傷或財產受損，緩刑是適合的刑罰。本席採納14天監禁為量刑基準，經考慮後認為沒有其他因素可把刑期縮短，故判處第八被告人就第十項控罪14天監禁，緩刑12個月。\n第九被告人\n64.\n第九被告人在審訊前承認第十項控罪，即參與非法集結，違反香港法例\n第245章\n《公安條例》\n第18條\n。\n65.\n第十項控罪針對事件三，而案情以及第九被告人的角色已在本判刑理由中關於第七被告人的部分交代，故不再在此詳述。簡單而言，第九被告人向鐵馬推進，並曾與約30名遊行人士以手用力推向鐵馬。\n66.\n第九被告人現年24歲，在因另一宗案件被扣押前任職社區組織的團體幹事。辯方在求情時指第九被告人一向熱心公共事務，參與社運多年，協助弱勢社群。在案發前他有一項刑事定罪紀錄，即於2016年1月7日就兩項參與非法集結罪被判80小時社會服務令。\n67.\n第九被告人撰寫了一封求情信，當中提及自己無意傷害執法人員或破壞任何物件。他選擇嘗試爬過鐵馬，只為到中聯辦門外集會。他亦表示當日他與其他被告人曾在示威過程中作出許多即時的決定，以防止暴力衝突發生。\n68.\n此外他亦呈上包括多名立法會議員、前立法會議員、認識他多年的大學教授、中學老師，以及傳道人所撰寫的求情信。信中提到第九被告人從中學起參與社運，一直並非為了個人私利。他把對設計和藝術的專長應用在社運中。他雖然對事情有自己的看法，但亦能以開放態度聆聽別人的意見。\n69.\n如前所述，事件三的規模較大，影響亦較嚴重。由於第九被告人並非初犯，而他的刑事定罪紀錄是與本案中他面對的控罪相同，故此考慮了案情及他的角色後，即使他在審訊前坦白認罪，本席仍認為罰款及社會服務令並不合適。不過，考慮了第九被告人年紀尚輕，他所有的求情因素和辯方呈上的求情信，以及本案案情，特別是沒有證據顯示事件三中有任何人受傷或財物受損，本席認為可判處緩刑。法庭採納21天監禁為量刑基準，因第九被告人在審訊前的審前覆核已表示可能承認控罪，但因控方就其他被告人的控罪在較後階段仍須修改才須把答辯延後一併處理，故本席從量刑基準扣減7天，判處第九被告人就第十項控罪14天監禁，緩刑12個月。\n黃雅茵\n裁判官\n法律代表：\n由律政司助理刑事檢控專員鄭凱聰代表香港特別行政區\n由當值律師服務延聘郭憬憲大律師代表第一被告\n由當值律師服務延聘石書銘大律師代表第二及第三被告\n由當值律師服務延聘伍展邦律師代表第四被告\n由當值律師服務延聘陳偉彥大律師代表第六及第八被告\n由何謝韋律師事務所文浩正律師代表第七被告\n由當值律師服務延聘鄧子楷大律師代表第九被告", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2017/WKCC003654A_2017.docx", + "file_name": "WKCC003654A_2017.docx", + "file_ext": ".docx", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkmagc/2020_HKMagC_2/STMP000136_2020.txt b/zh_cases_hkmagc/2020_HKMagC_2/STMP000136_2020.txt new file mode 100644 index 0000000..2dcc7bd --- /dev/null +++ b/zh_cases_hkmagc/2020_HKMagC_2/STMP000136_2020.txt @@ -0,0 +1,90 @@ +STMP 136/2020 +[2020] HKMagC 2 + +香港特別行政區 +沙田裁判法院 +雜項案件2020年第136號 +______________________ +郭德英 +訴 + +梁家榮 +_______________________ +主審裁判官：鄧少雄署理主任裁判官 +裁決日期：2020年6月12日 + +裁決理由 + +背景 +申請人郭德英女士，申請發出5張私人傳票，檢控香港電台廣播處處長梁家榮先生。 郭女士多次要求，公開下進行她的申請。 + +郭女士的代表律師確認，已經將所有會依賴的文件，包括證人口供、證物、陳詞、權威述著、案例等等，全部存檔於法庭，沒有遺漏。 + +公開聆訊 +本席會先處理郭女士公開聆訊的申請。 + +代表郭女士的容海恩大律師，在她2020年6月1日的「申請人就有關公開聆訊的陳詞綱要」陳述: +高等法院在HKSAR v Cheung Kin Chung HCMA221-223/2015一案中，沒有考慮裁判官條例第11條，即: +「11.聆訊的地點及方式 +裁判官聆訊及審理申訴或告發案的房間或地點，須當作為公開及公眾法庭，只要能方便容納公眾人士，則公眾人士一般均可進入，但如證據屬不雅性質，或檢控乃針對違反《社團條例》(第151章)的罪行，而該罪行是涉及或與三合會有關且裁判官另有指示者，則屬例外，而裁判官在此情況下，須在供詞上記錄他作出的指示; +但無論如何，裁判官宣讀其裁定及其後任何法律程序，除根據第104條進行有需要聽取證據的覆核外，均須在公開及公眾法庭進行。」 +容大律師陳詞，以上條文包含着維護社會公義及公眾知情權的元素，而高等法院在該案例中，並沒有作更詳盡的論述。 + +根據檢控守則第7點: +「7.私人檢控 +7.1 按照普通法，人人皆有權為公眾利益提出刑事檢控。 +7.2 根據《裁判官條例》(第227章) 第14條，申訴人或告發人可親自或由其法律代表進行檢控。 +7.3 律政司司長有權介入私人檢控程序並接手進行檢控，成為當時法律程序中的一方，取代原來檢控一方。由私人檢控而展開的法律程序，律政司司長可繼續該等法律程序，也可拒絕簽署控罪書或公訴書，從而阻止該等法律程序繼續進行(見《區域法院條例》(第336章)第74和75條，以及《刑事訴訟程序條例》(第221章)第17條)。在決定是否介入私人檢控前，會先根據《檢控守則》決定往後的檢控行動。 +7.4 決定是否接管私人檢控，有其考慮因素，其中包括以下各項: +a. 維護社會公義； +b. 罪行的嚴重程度； +c. 有利害關係一方的意見； +d. 訴訟是否重複； +e. 與律政司的決定是否一致； +f. 是否有機會進行公平審訊。 +律政司司長可同時考慮原來檢控一方的行為操守。」 +因此律政司司長有權介入私人檢控程序、接手進行檢控，取代原來檢控的一方；因此，本席應該批准進行公開聆訊，令律政司有可能在這情況下即時介入私人檢控程序。 +關於公眾利益，吳美玲法官在Re A HCMP2728/2017[2020]HKCFI 493一案中，第33段提到: +〝33. In my view, the general practice of the courts is to ensure open administration of justice, and hence court proceedings should only be closed to the public if the court is satisfied there are 1 or more reasons for excluding the press and the public, and such exclusion is necessary to enable justice to be done. The court can also exercise its power differently with regard to different parts of the court proceedings, so the court can close only part of a hearing to the public. In my view, it was for the Husband to demonstrate clear/cogent basis as to why the Hearing should be not open to the public. 〞 + +就論點a，高等法院在HKSAR v Cheung Kin Chung HCMA267/2015，第27-29段中裁決：由於裁判官只須要考慮是否發出傳票，並非聆訊及審理申訊或告發案([not] to hear and try any complaint or information) ， 因此裁判官條例第11條並不適用，裁判官無須就此作出公開聆訊 + +就論點b，郭女士申請私人傳票，控告梁先生一事，已經獲得傳媒廣泛報導，但律政司司長從來沒有表示要牽涉其中；本席並不認為律政司司長有意介入，接手檢控。此外，假設本席最終否決了郭女士的申請，律政司司長亦可以隨時沿正規途徑，發出傳票，檢控梁先生。再者，郭女士所依賴的證據，都是由網上或電視上獲取，律政司司長可以輕易取得這些證據。 +就論點c，本席同意吳法官的分析；但有關案例是討論在家事法庭的程序中，第三方支付訟費的問題，和本案無關。 + +總括而言，根據有關法例及案例，本席裁定，郭女士的申請，可以於內庭處理，無須公開。 + +私人傳票 +郭女士一共草擬並存檔了5張傳票檢控梁先生。傳票的內容，大致相彷，均指控梁先生身為公職人員，即香港電台廣播處處長，在不同日子，不同場合，在香港執行公職過程中，或與其公職有關的情況下，未有合理辯解或理由，故意及蓄意作出失當行為，即利用由他公職獲取或與他公職有關的資源: +製作及播放節目<左右紅藍綠>中的「評警方圍攻大學校園事件」，該節目未能提供準確而持平的新聞報導、資訊、觀點及分析，因而偏頗失實，欠缺持平，違反<電視通用業務守則>及<香港電台約章>； +製作及播放<頭條新聞>中的「驚方信息」環節，誤導市民對警隊產生錯誤看法；該節目偏頗失實，欠缺持平，違反<香港電台約章>； +透過香港電台第一台，以整個新聞時段，以嘉許手法報導佔領中環行動主犯之一的陳健民的出獄過程，明顯剝奪了市民對其他重要新聞的知情權及違反<電台業務守則>；及 +策劃、製作及播放節目，訪問世界衛生組織官員應否接納台灣加入該世界衛生組織作為成員，違反基本法及一個中國的原則，削弱香港市民對公民及國民身分的認同感，違反<香港電台約章>。 + +傳票的發出 +根據<裁判官條例>(第227章)，第8條(1)，在符合相關規定後，本席可以發出傳票；第8條(1B)指，本席可以基於好的因由，拒發傳票。 + +在Tsui Koon Wah v Principal Magistrate of Kowloon City Magistrates’Courts,HCAL81/2006,第40及41段指出，本席要考慮: +〝… whether the allegation is of an offence known to the law and if so whether the essential ingredients of the offence are prima facie present.〞 + + +公職人員行為失當 +所有傳票均指稱梁先生干犯了「公職人員行為不當」罪。 該控罪的原素，在Archbold Hong Kong 2020，第35-96至35-104A段有詳細的討論，本席無需重覆。 + +即使本席暫時不考慮各張傳票獨有的控罪原素，他們都有一共通㸃，指稱梁先生「故意及蓄意」 ( 〝wilfully and intentionally〞) 疏忽職守或作出失當行為。 + +在Shum Kwok Sher v HKSAR,(2002)5 HKCFAR 381,[2002] 2 HKLRD 793,第85段，終審法院指出:　 +〝In other words, ‘wilfully’ signifies knowledge or advertence to the consequences, as well as intent to do an act or refrain from doing an act. Wilfulness in this sense is the requisite mental element in the offence of midconduct in public office, most notably in cases of non-feasance. There is no reason why the same mental element should not be requisite in cases of misfeasance and other forms of misconduct in public office. 〞 + +根據郭女士的文件，她在電視或網上觀看了有關節目後，就認為梁先生干犯了有關控罪 (見郭女士的證人口供)，但縱觀她的文件，並未有表面證據顯示梁先生故意及蓄意疏忽職守或作出失當行為。本席認為郭女士不能提供一個表證成立的案情，而拒絕她的申請。 + +總結 +本席認為郭女士不能提供一個表證成立的案情，而拒絕她的申請。 + + +(鄧少雄) +署理主任裁判官 +沙田裁判法院 + + +由司徒維新律師行延聘容海恩大律師代表申請人 \ No newline at end of file diff --git a/zh_cases_hkmagc/2020_HKMagC_2/case.json b/zh_cases_hkmagc/2020_HKMagC_2/case.json new file mode 100644 index 0000000..f665540 --- /dev/null +++ b/zh_cases_hkmagc/2020_HKMagC_2/case.json @@ -0,0 +1,26 @@ +{ + "Date": "12 Jun, 2020", + "Action No.": "STMP136/2020", + "Neutral Cit.": "[2020] HKMagC 2", + "case_title": "郭德英 對 梁家榮", + "page_title": "郭德英 對 梁家榮 | [2020] HKMagC 2 | HKLII", + "case_history": [ + { + "name": "STMP136/2020", + "link": "https://www.hklii.hk/tc/appealhistory/STMP/2020/136" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkmagc/2020/2", + "neutral_cit": "[2020] HKMagC 2", + "court_code": "HKMAGC", + "content": "STMP136/2020 郭德英 對 梁家榮\nSTMP 136/2020\n[2020] HKMagC 2\n香港特別行政區\n沙田裁判法院\n雜項案件2020年第136號\n______________________\n郭德英\n訴\n梁家榮\n______________________\n主審裁判官：\n鄧少雄署理主任裁判官\n裁決日期：\n2020年6月12日\n裁\n決理由\n背\n景\n1.\n申請人郭德英女士，申請發出5張私人傳票，檢控香港電台廣播處處長梁家榮先生。 郭女士多次要求，公開下進行她的申請。\n2.\n郭女士的代表律師確認，已經將所有會依賴的文件，包括證人口供、證物、陳詞、權威述著、案例等等，全部存檔於法庭，沒有遺漏。\n公開聆訊\n3.\n本席會先處理郭女士公開聆訊的申請。\n4.\n代表郭女士的容海恩大律師，在她2020年6月1日的「申請人就有關公開聆訊的陳詞綱要」陳述:\na.高等法院在\nHKSAR v Cheung Kin Chung\nHCMA221-223/2015\n[1]\n一案中，沒有考慮裁判官條例第11條，即:\n「11.聆訊的地點及方式\n裁判官聆訊及審理申訴或告發案的房間或地點，須當作為公開及公眾法庭，只要能方便容納公眾人士，則公眾人士一般均可進入，但如證據屬不雅性質，或檢控乃針對違反\n《社團條例》\n(\n第151章\n)的罪行，而該罪行是涉及或與三合會有關且裁判官另有指示者，則屬例外，而裁判官在此情況下，須在供詞上記錄他作出的指示;\n但無論如何，裁判官宣讀其裁定及其後任何法律程序，除根據\n第104條\n進行有需要聽取證據的覆核外，均須在公開及公眾法庭進行。」\n容大律師陳詞，以上條文包含着維護社會公義及公眾知情權的元素，而高等法院在該案例中，並沒有作更詳盡的論述。\nb.根據檢控守則第7點:\n「7.私人檢控\n7.1 按照普通法，人人皆有權為公眾利益提出刑事檢控。\n7.2 根據\n《裁判官條例》\n(\n第227章\n)\n第14條\n，申訴人或告發人可親自或由其法律代表進行檢控。\n7.3 律政司司長有權介入私人檢控程序並接手進行檢控，成為當時法律程序中的一方，取代原來檢控一方。由私人檢控而展開的法律程序，律政司司長可繼續該等法律程序，也可拒絕簽署控罪書或公訴書，從而阻止該等法律程序繼續進行(見\n《區域法院條例》\n(\n第336章\n)\n第74\n和\n75條\n，以及\n《刑事訴訟程序條例》\n(\n第221章\n)\n第17條\n)。在決定是否介入私人檢控前，會先根據《檢控守則》決定往後的檢控行動。\n7.4 決定是否接管私人檢控，有其考慮因素，其中包括以下各項:\na. 維護社會公義；\nb. 罪行的嚴重程度；\nc. 有利害關係一方的意見；\nd. 訴訟是否重複；\ne. 與律政司的決定是否一致；\nf. 是否有機會進行公平審訊。\n律政司司長可同時考慮原來檢控一方的行為操守。」\n因此律政司司長有權介入私人檢控程序、接手進行檢控，取代原來檢控的一方；因此，本席應該批准進行公開聆訊，令律政司有可能在這情況下即時介入私人檢控程序。\nc.關於公眾利益，吳美玲法官在\nRe A\nHCMP2728/2017\n[2020]HKCFI 493\n一案中，第33段提到:\n〝33. In my view, the general practice of the courts is to ensure open administration of justice, and hence court proceedings should only be closed to the public if the court is satisfied there are 1 or more reasons for excluding the press and the public, and such exclusion is necessary to enable justice to be done. The court can also exercise its power differently with regard to different parts of the court proceedings, so the court can close only part of a hearing to the public. In my view, it was for the Husband to demonstrate clear/cogent basis as to why the Hearing should be not open to the public. 〞\n5.\n就論點a，高等法院在\nHKSAR v Cheung Kin Chung\nHCMA267/2015\n[2]\n，第27-29段中裁決：由於裁判官只須要考慮是否發出傳票，並非聆訊及審理申訊或告發案([not] to hear and try any complaint or information) ， 因此裁判官條例\n第11條\n並不適用，裁判官無須就此作出公開聆訊\n[3]\n6.\n就論點b，郭女士申請私人傳票，控告梁先生一事，已經獲得傳媒廣泛報導，但律政司司長從來沒有表示要牽涉其中；本席並不認為律政司司長有意介入，接手檢控。此外，假設本席最終否決了郭女士的申請，律政司司長亦可以隨時沿正規途徑，發出傳票，檢控梁先生。再者，郭女士所依賴的證據，都是由網上或電視上獲取，律政司司長可以輕易取得這些證據。\n7.\n就論點c，本席同意吳法官的分析；但有關案例是討論在家事法庭的程序中，第三方支付訟費的問題，和本案無關。\n8.\n總括而言，根據有關法例及案例，本席裁定，郭女士的申請，可以於內庭處理，無須公開。\n私人傳票\n9.\n郭女士一共草擬並存檔了5張傳票檢控梁先生。傳票的內容，大致相彷，均指控梁先生身為公職人員，即香港電台廣播處處長，在不同日子，不同場合，在香港執行公職過程中，或與其公職有關的情況下，未有合理辯解或理由，故意及蓄意作出失當行為，即利用由他公職獲取或與他公職有關的資源:\na. 製作及播放節目<左右紅藍綠>中的「評警方圍攻大學校園事件」，該節目未能提供準確而持平的新聞報導、資訊、觀點及分析，因而偏頗失實，欠缺持平，違反<電視通用業務守則>及<香港電台約章>；\nb. 製作及播放<頭條新聞>中的「驚方信息」環節，誤導市民對警隊產生錯誤看法；該節目偏頗失實，欠缺持平，違反<香港電台約章>；\nc. 透過香港電台第一台，以整個新聞時段，以嘉許手法報導佔領中環行動主犯之一的陳健民的出獄過程，明顯剝奪了市民對其他重要新聞的知情權及違反<電台業務守則>；及\nd. 策劃、製作及播放節目\n，訪問世界衛生組織官員應否接納台灣加入該世界衛生組織作為成員，違反基本法及一個中國的原則，削弱香港市民對公民及國民身分的認同感，違反<香港電台約章>。\n傳票的發\n出\n10.\n根據<裁判官條例>(第227章)，\n第8條\n(1)，在符合相關規定後，本席可以發出傳票；\n第8條\n(1B)指，本席可以基於好的因由，拒發傳票。\n11.\n在\nTsui Koon Wah v Principal Magistrate of Kowloon City Magistrates’Courts\n,HCAL81/2006\n,第40及41段指出，本席要考慮:\n〝… whether the allegation is of an offence known to the law and if so whether the essential ingredients of the offence are prima facie present.〞\n公職人\n員\n行\n為\n失當\n12.\n所有傳票均指稱梁先生干犯了「公職人員行為不當」罪。 該控罪的原素，在\nArchbold Hong Kong 2020\n，第35-96至35-104A段有詳細的討論，本席無需重覆。\n13.\n即使本席暫時不考慮各張傳票獨有的控罪原素，他們都有一共通㸃，指稱梁先生「故意及蓄意」 ( 〝wilfully and intentionally〞) 疏忽職守或作出失當行為。\n14.\n在\nShum Kwok Sher v HKSAR\n,\n(2002)5 HKCFAR 381\n,\n[2002] 2 HKLRD 793\n,第85段，終審法院指出:\n〝In other words, ‘wilfully’ signifies knowledge or advertence to the consequences, as well as intent to do an act or refrain from doing an act. Wilfulness in this sense is the requisite mental element in the offence of midconduct in public office, most notably in cases of non-feasance. There is no reason why the same mental element should not be requisite in cases of misfeasance and other forms of misconduct in public office. 〞\n15.\n根據郭女士的文件，她在電視或網上觀看了有關節目後，就認為梁先生干犯了有關控罪 (見郭女士的證人口供)，但縱觀她的文件，並未有表面證據顯示梁先生故意及蓄意疏忽職守或作出失當行為。本席認為郭女士不能提供一個表證成立的案情，而拒絕她的申請。\n總結\n16.\n本席認為郭女士不能提供一個表證成立的案情，而拒絕她的申請。\n(鄧少雄)\n署理主任裁判官\n沙田裁判法院\n由司徒維新律師行延聘容海恩大律師代表申請人\n[1]\nCheung Kin Chung (1)\n[2]\nCheung Kin Chung (2)\n[3]\n本席在2020年5月6日向郭女士的代表律師發出指示，表示本席會參考Cheung Kin Chung (1) 及(2) 的案例，但在容大律師的陳詞中，並沒有觸及Cheung Kin Chung (2) 的法律原則。", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2020/STMP000136_2020.doc", + "file_name": "STMP000136_2020.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkmagc/2023_HKMagC_8/WKCC000093_2023_abp_fallback.txt b/zh_cases_hkmagc/2023_HKMagC_8/WKCC000093_2023_abp_fallback.txt new file mode 100644 index 0000000..d145a57 --- /dev/null +++ b/zh_cases_hkmagc/2023_HKMagC_8/WKCC000093_2023_abp_fallback.txt @@ -0,0 +1,11 @@ + WKCC 93/2023 [2023] HKMagC 8 香港特別行政區 西九龍裁判法院 刑事案件2023年第93號 __________________ 香港特別行政區 訴 被告人 王浩鏘 __________________ 主審裁判官： 主任裁判官羅德泉 定罪日期： 2023年3月27日 判刑日期： 2023年3月27日 判 刑 理 由 書 序言 被告人面對一項作出一項或多項具煽動意圖的作為罪行，他承認控罪。 控罪詳請如下： 「王浩鏘，你被控於2022年8月28日至2023年1月5日期間（包括首尾兩日）在香港，作出一項或多項具煽動意 +圖的作為，即在LIHKG和Facebook發布、提供及/或持續提供陳述、相片及/或圖片，具意圖： 引起憎恨或藐視中央及/或香港特別行政區政府或激起對其離叛； 激起香港居民企圖不循合法途徑促致改變其他在香港的依法制定的事項； 引起對香港司法的憎恨、藐視或激起對其離叛； 煽惑他人使用暴力；及/或 慫使他人不守法或不服從合法命令。」 案情 警方發現在社交平台LIHKG及Facebook上，有兩個帳戶發布具煽動性的訊息。於2022年11月14日至2022年12月28日期間，該LIHKG帳戶向公眾發布了共189則具煽動性的訊息。至於該Facebook帳戶，則在2022年8月28日至2022年11月28日期間，向公眾發布了7則同類的訊息。 有關的煽動意圖內容如下： 引起憎恨或藐視中央及中國共產黨，或激起對其離叛 包括但不限於： 「打倒共產黨」； 「天滅匪黨 / 共狗不知所謂 / 共產黨真係泯滅人性」； 「千祈唔好信共產黨 / 打到萬惡中央」； +「天滅中共」； 「共產黨正仆街　打倒共產黨」； 「天滅中共，全黨死清光 / 天滅中共，打倒中共，打倒共匪 / 天滅中共，打到（倒）共產黨」； 「一齊反抗共匪」； 「共匪已不得人心！」； 「我唔止想見到香港光復　我都想見到中共倒台」； 「天滅中共　打倒屠夫政權」； 「中國手足唔好收手　共產黨都未收皮」； 「共產黨係人渣　要打倒佢先好收手」； 「共產黨下台　要民主反專制　拉我啊笨柒」； 「打倒共匪」； 「冇一個共產黨係無辜」； 「中共同江澤民都要入土為安」； 「共匪不但剝奪香港人政治權利　而且破壞我哋生計」； 「共產黨　你都係用謊言治國 / 大家千祈唔好收手　要繼續反對共產統治」； 「中共呢啲邪惡政權真係不得人心」； +「共產黨係我哋嘅共同敵人」。 引起憎恨或藐視香港特區政府、香港警務處及政府官員，或激起對其離叛 包括但不限於： 針對香港特別行政區政府和特區行政長官：「打倒李家超 / 垃圾香港政府 / 李家超正共狗 / 原來李家超弱智唔係扮」； 針對香港警務處：「差人根本就係黑社會 / 黑警死全家 / 根本所有警察都係犯罪分子 / 所有黑警都必須仆街死」； 針對香港特區政府各局長（保安局局長和醫務衞生局局長）的訊息。 激起香港居民企圖不循合法途徑促致改變其他在香港的依法制定的事項 包括但不限於： 宣揚香港獨立：「光復香港，時代革命 / 我願榮光歸香港」；「香港獨立」； 破壞依法制定的防止2019冠狀病毒政策：「大家要抵制法西斯防疫政策　樓宇強制檢測係浪費香港人嘅血汗錢 / 大家要抗爭　抵制安心出行」；「香港宜家仲有口罩令同埋疫苗通行證　絶對係因為港共班官死要面 / 當日挺身反抗極權防疫政策嘅人　佢哋係義士，絶對唔係暴徒 / 我哋要用盡方法去反抗呢啲 +極權防疫政策　例如大家千祈唔好配合大廈強檢」；「我帶唔戴口罩係我自由」。 引起對香港司法的憎恨、藐視或激起對其離叛 包括但不限於： 針對司法人員（多名區域法院法官和裁判官）的訊息； 針對檢控官的訊息。 煽惑他人使用暴力；及/或慫使他人不守法或不服從合法命令 包括但不限於： 使用暴力： 「歷史會俾梁健輝一個公平評價　光復香港　時代革命　香港人反抗 / 梁義士嘅犧牲雖然冇即時效果，但係抗爭的利與弊從來就不能簡單被計算出來…海內外香港同胞一定會繼續對抗中共 / 各位香港同胞，要對得住梁健輝嘅犧牲，我哋唔好傷春悲秋，散播失敗主義！」 - 有關一名疑犯於2021年7月1日在銅鑼灣用刀刺傷一名警務人員然後自殺的案件； 參加涉及違反國安法、公安、國歌和國旗法有關罪行： 「不如話香港人唔識食住個勢　其實我哋應該要趁呢個機會上街抗爭」 - 借在中國大陸發生的「白紙運動」，而提議香港人趁機重燃街頭抗爭； +「義士平安　歷史會判你哋冇罪　光復香港時代革命 / 唔該你對義士尊重啲 / 釋放義士」 - 推崇一被捕人，他在一宗名為「集英揚武堂」被控干犯「煽動顛覆國家政權罪」在區域法院審理； 即使法庭已經於2022年9月7日裁定「羊村繪本系列」的刊物為煽動刊物，被告仍於2022年9月29日繼續在Facebook發布它們並留言「cat(c)h me if you can, motherfucker」； 「光復香港旗係我哋嘅國旗　不容其他民族佢侮辱我哋嘅國旗」； 「我哋要繼續推廣願榮光歸香港　令所有人都知道呢個係我哋嘅國歌」； 「香港人嘅國歌就係願榮光歸香港　同行兒女為正義時代革命」。 警方經調查後，發現被告人擁有該LIHKG及Facebook帳戶。最終警方於2023年1月5日拘捕被告人，搜獲與案有關的證物。 背景及求情 被告人25歲，單身，並無刑事紀錄。他曾經接受良好教育，成績優異。他自小在良好的家庭中成長。蘇大律師陳述近年由於父母離異，令被告人大受打擊，因此出現情緒問題，令性格變得偏激。案發期間他身體不適，情緒不穏，導致他不成熟地以偏激方式表達意見。蘇大律師甚至形容被告人亦是受到他人的煽動訊息影響，所以都可算是受害人之一。 +蘇大律師陳述今次屬例外事件，與被告人的一貫性格不符，而本案亦催毀他一片光明的前途。辯方進一步補充案件不屬嚴重類別，歷時不算長，亦非大規模，而且被告人的個人影響力有限。 量刑基礎 以任何形式作出具煽動意圖的作為均是嚴重行為，當法庭衡量其嚴重性時，需要整體考慮箇中的案情；亦包括犯案者的行為、目的、單獨或團伙犯案；有計劃下或在霎時間衝動下犯案、規模、次數、對象、潛在風險、犯案工具、所煽動項目之尖銳性及當中有否提及暴力、犯案者在社會或那些社群中之個人影響力。 今次的案件，屬於個人犯案，並無團伙。被告人有份參與在社交平台上向公眾發布帶煽動性的帖文/圖片，以達至「一唱一和」形式的回響。雖然在數目上於LIHKG中有189則，而在Facebook中則有7則，分別獲得公眾人士作出回應；但這數字並沒有計算只閱讀但沒有作回應者的數目，所以未能估計實質的讀者人數及事情的規模，但本席相信數目不會太大。 在社會亂象已沉寂了一段時間下發布這類訊息，被告人必然心知肚明其對象是同情，甚至是認同當時示威者的違法行為之志同道合者。向那些人士重提這類事情，較容易激起他們情緒波動，縱使是沉默的閱讀者，對其影響力亦不下於直接回應者。 +本案的煽動性內容，都是圍繞著當時的社會亂象下叫喊的口號。時至今天，那些混亂、暴力及違法行為，雖然已成往事，但對於部份人而言，心情尚未完全平伏，甚至有人仍然心有不忿，在稍受刺激下，容易再次挑起當年的激烈情緒。 到了2022年11月尾，社會事件已經沉寂了一段時間，但被告人在Facebook上載手持白紙示人之示威圖片，藉以借題發揮，還引致他人作回應，可見一些志同道合者，仍然心有不忿。所以若形容被告人的作為，如埋下計時炸彈般，並非危言聳聽。 從發布的內容中，縱使不屬大規模地強調或渲染暴力，而大致上是不斷重覆當時帶有尖銳性的口號；但在當期時，那些口號總是離不開暴力，再重提難免會勾起閱讀者回想起當時的暴力場面，影響其情緒。 今次在兩個不同平台的帳戶上發布，時段由2022年8月28日至2022年12月28日，為期約4個月，不算是短期性，被告人不時直接參與其中，所以整體來看，他並非出於霎時衝動，而是希望那類訊息可延續。本席認為其發布形式屬簡單的「一唱一和」形式，以引起回響。 今時今日之網上媒體平台發展蓬勃，傳播能力強，不能低估其影響力。但綜合而言，本席認為今次只涉及兩個平台，算不上大規模，亦非屬精心設計。再者被告人亦非知名人士，不能夠在那些社群中發揮大影響力。 +涉及煽動性罪行，雖屬防範性質，但必需帶出訊息，若防範失效，將對社會造成嚴重影響。即使是初犯者，須要判處阻嚇性刑罰，以遏止這類行為。 本控罪最高罰則為入獄2年及罰款5,000元。 判刑 本席有考慮案情、求情陳詞及求情信件。整體而言，本案並非屬最嚴重類別，但仍然有其嚴重性。今次雖然不算精心設計，但畢竟有計劃，所發布的訊息不算低程度的煽動性，被告人以一群容易被挑起情緒的人為其對象，亦有潛伏危機。 本案以7個半月為量刑起點，認罪下可獲三分之一折扣，減至5個月。除此以外，本席看不到有進一步減刑空間。故判被告人入獄5個月。 （羅德泉） 主任裁判官 控方：由律政司高級檢控官李庭偉，代表香港特別行政區。 辯方：由勞超傑律師事務所延聘蘇信恩大律師，代表被告人。 + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/zh_cases_hkmagc/2023_HKMagC_8/case.json b/zh_cases_hkmagc/2023_HKMagC_8/case.json new file mode 100644 index 0000000..e083c7f --- /dev/null +++ b/zh_cases_hkmagc/2023_HKMagC_8/case.json @@ -0,0 +1,26 @@ +{ + "Date": "27 Mar, 2023", + "Action No.": "WKCC93/2023", + "Neutral Cit.": "[2023] HKMagC 8", + "case_title": "香港特別行政區 訴 王浩鏘", + "page_title": "香港特別行政區 訴 王浩鏘 | [2023] HKMagC 8 | HKLII", + "case_history": [ + { + "name": "WKCC93/2023", + "link": "https://www.hklii.hk/tc/appealhistory/WKCC/2023/93" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkmagc/2023/8", + "neutral_cit": "[2023] HKMagC 8", + "court_code": "HKMAGC", + "content": "WKCC93/2023 香港特別行政區 訴 王浩鏘\nWKCC 93/2023\n[2023] HKMagC 8\n香港特別行政區\n西九龍裁判法院\n刑事案件2023年第93號\n__________________\n香港特別行政區\n訴\n被告人\n王浩鏘\n__________________\n主審裁判官：\n主任裁判官羅德泉\n定罪日期：\n2023年3月27日\n判刑日期：\n2023年3月27日\n判 刑 理 由 書\n序言\n1.\n被告人面對一項作出一項或多項具煽動意圖的作為罪行\n[1]\n，他承認控罪。\n2.\n控罪詳請如下：\n「王浩鏘，你被控於2022年8月28日至2023年1月5日期間（包括首尾兩日）在香港，作出一項或多項具煽動意圖的作為，即在LIHKG和Facebook發布、提供及/或持續提供陳述、相片及/或圖片，具意圖：\n(a) 引起憎恨或藐視中央及/或香港特別行政區政府或激起對其離叛；\n(b) 激起香港居民企圖不循合法途徑促致改變其他在香港的依法制定的事項；\n(c) 引起對香港司法的憎恨、藐視或激起對其離叛；\n(d) 煽惑他人使用暴力；及/或\n(e) 慫使他人不守法或不服從合法命令。」\n案情\n3.\n警方發現在社交平台LIHKG及Facebook上，有兩個帳戶發布具煽動性的訊息。於2022年11月14日至2022年12月28日期間，該LIHKG帳戶向公眾發布了共189則具煽動性的訊息。至於該Facebook帳戶，則在2022年8月28日至2022年11月28日期間，向公眾發布了7則同類的訊息。\n4.\n有關的煽動意圖內容如下：\n(a)\n引起憎恨或藐視中央及中國共產黨\n，\n或激起對其離叛\n包括但不限於：\n• 「打倒共產黨」；\n• 「天滅匪黨 / 共狗不知所謂 / 共產黨真係泯滅人性」；\n• 「千祈唔好信共產黨 / 打到萬惡中央」；\n• 「天滅中共」；\n• 「共產黨正仆街　打倒共產黨」；\n• 「天滅中共，全黨死清光 / 天滅中共，打倒中共，打倒共匪 / 天滅中共，打到（倒）共產黨」；\n• 「一齊反抗共匪」；\n• 「共匪已不得人心！」；\n• 「我唔止想見到香港光復　我都想見到中共倒台」；\n• 「天滅中共　打倒屠夫政權」；\n• 「中國手足唔好收手　共產黨都未收皮」；\n• 「共產黨係人渣　要打倒佢先好收手」；\n• 「共產黨下台　要民主反專制　拉我啊笨柒」；\n• 「打倒共匪」；\n• 「冇一個共產黨係無辜」；\n• 「中共同江澤民都要入土為安」；\n• 「共匪不但剝奪香港人政治權利　而且破壞我哋生計」；\n• 「共產黨　你都係用謊言治國 / 大家千祈唔好收手　要繼續反對共產統治」；\n• 「中共呢啲邪惡政權真係不得人心」；\n• 「共產黨係我哋嘅共同敵人」。\n(b)\n引起憎恨或藐視香港特區政府、香港警務處及政府官員，或激起對其離叛\n包括但不限於：\n•\n針對香港特別行政區政府和特區行政長官\n：\n「打倒李家超 / 垃圾香港政府 / 李家超正共狗 / 原來李家超弱智唔係扮」；\n•\n針對香港警務處\n：\n「差人根本就係黑社會 / 黑警死全家 / 根本所有警察都係犯罪分子 / 所有黑警都必須仆街死」；\n•\n針對香港特區政府各局長\n（\n保安局局長和醫務衞生局局長）的訊息。\n(c)\n激起香港居民企圖不循合法途徑促致改變其他在香港的依法制定的事項\n包括但不限於：\n•\n宣揚香港獨立\n：\n「光復香港，時代革命 / 我願榮光歸香港」；「香港獨立」；\n•\n破壞依法制定的防止\n2019\n冠狀病毒政策\n：\n「大家要抵制法西斯防疫政策　樓宇強制檢測係浪費香港人嘅血汗錢 / 大家要抗爭　抵制安心出行」；「香港宜家仲有口罩令同埋疫苗通行證　絶對係因為港共班官死要面 / 當日挺身反抗極權防疫政策嘅人　佢哋係義士，絶對唔係暴徒 / 我哋要用盡方法去反抗呢啲極權防疫政策　例如大家千祈唔好配合大廈強檢」；「我帶唔戴口罩係我自由」。\n(d)\n引起對香港司法的憎恨、藐視或激起對其離叛\n包括但不限於：\n•\n針對司法人員\n（多名區域法院法官和裁判官）的訊息；\n•\n針對檢控官\n的訊息。\n(e)\n煽惑他人使用暴力；及\n/或慫使他人不守法或不服從合法命令\n包括但不限於：\n•\n使用暴力\n：\n「歷史會俾梁健輝一個公平評價　光復香港　時代革命　香港人反抗 / 梁義士嘅犧牲雖然冇即時效果，但係抗爭的利與弊從來就不能簡單被計算出來…海內外香港同胞一定會繼續對抗中共 / 各位香港同胞，要對得住梁健輝嘅犧牲，我哋唔好傷春悲秋，散播失敗主義！」 - 有關一名疑犯於2021年7月1日在銅鑼灣用刀刺傷一名警務人員然後自殺的案件；\n•\n參加涉及違反國安法、公安、國歌和國旗法有關罪行\n：\n「不如話香港人唔識食住個勢　其實我哋應該要趁呢個機會上街抗爭」 - 借在中國大陸發生的「白紙運動」，而提議香港人趁機重燃街頭抗爭；\n「義士平安　歷史會判你哋冇罪　光復香港時代革命 / 唔該你對義士尊重啲 / 釋放義士」 - 推崇一被捕人，他在一宗名為「集英揚武堂」被控干犯「煽動顛覆國家政權罪」在區域法院審理；\n即使法庭已經於2022年9月7日裁定「羊村繪本系列」的刊物為煽動刊物，被告仍於2022年9月29日繼續在Facebook發布它們並留言「cat(c)h me if you can, motherfucker」；\n「光復香港旗係我哋嘅國旗　不容其他民族佢侮辱我哋嘅國旗」；\n「我哋要繼續推廣願榮光歸香港　令所有人都知道呢個係我哋嘅國歌」；\n「香港人嘅國歌就係願榮光歸香港　同行兒女為正義時代革命」。\n5.\n警方經調查後，發現被告人擁有該LIHKG及Facebook帳戶。最終警方於2023年1月5日拘捕被告人，搜獲與案有關的證物。\n背景及求情\n6.\n被告人25歲，單身，並無刑事紀錄。他曾經接受良好教育，成績優異。他自小在良好的家庭中成長。蘇大律師陳述近年由於父母離異，令被告人大受打擊，因此出現情緒問題，令性格變得偏激。案發期間他身體不適，情緒不穏，導致他不成熟地以偏激方式表達意見。蘇大律師甚至形容被告人亦是受到他人的煽動訊息影響，所以都可算是受害人之一。\n7.\n蘇大律師陳述今次屬例外事件，與被告人的一貫性格不符，而本案亦催毀他一片光明的前途。辯方進一步補充案件不屬嚴重類別，歷時不算長，亦非大規模，而且被告人的個人影響力有限。\n量刑基礎\n8.\n以任何形式作出具煽動意圖的作為均是嚴重行為，當法庭衡量其嚴重性時，需要整體考慮箇中的案情；亦包括犯案者的行為、目的、單獨或團伙犯案；有計劃下或在霎時間衝動下犯案、規模、次數、對象、潛在風險、犯案工具、所煽動項目之尖銳性及當中有否提及暴力、犯案者在社會或那些社群中之個人影響力。\n9.\n今次的案件，屬於個人犯案，並無團伙。被告人有份參與在社交平台上向公眾發布帶煽動性的帖文/圖片，以達至「一唱一和」形式的回響。雖然在數目上於LIHKG中有189則，而在Facebook中則有7則，分別獲得公眾人士作出回應；但這數字並沒有計算只閱讀但沒有作回應者的數目，所以未能估計實質的讀者人數及事情的規模，但本席相信數目不會太大。\n10.\n在社會亂象已沉寂了一段時間下發布這類訊息，被告人必然心知肚明其對象是同情，甚至是認同當時示威者的違法行為之志同道合者。向那些人士重提這類事情，較容易激起他們情緒波動，縱使是沉默的閱讀者，對其影響力亦不下於直接回應者。\n11.\n本案的煽動性內容，都是圍繞著當時的社會亂象下叫喊的口號。時至今天，那些混亂、暴力及違法行為，雖然已成往事，但對於部份人而言，心情尚未完全平伏，甚至有人仍然心有不忿，在稍受刺激下，容易再次挑起當年的激烈情緒。\n12.\n到了2022年11月尾，社會事件已經沉寂了一段時間，但被告人在Facebook上載手持白紙示人之示威圖片，藉以借題發揮，還引致他人作回應，可見一些志同道合者，仍然心有不忿。所以若形容被告人的作為，如埋下計時炸彈般，並非危言聳聽。\n13.\n從發布的內容中，縱使不屬大規模地強調或渲染暴力，而大致上是不斷重覆當時帶有尖銳性的口號；但在當期時，那些口號總是離不開暴力，再重提難免會勾起閱讀者回想起當時的暴力場面，影響其情緒。\n14.\n今次在兩個不同平台的帳戶上發布，時段由2022年8月28日至2022年12月28日，為期約4個月，不算是短期性，被告人不時直接參與其中，所以整體來看，他並非出於霎時衝動，而是希望那類訊息可延續。本席認為其發布形式屬簡單的「一唱一和」形式，以引起回響。\n15.\n今時今日之網上媒體平台發展蓬勃，傳播能力強，不能低估其影響力。但綜合而言，本席認為今次只涉及兩個平台，算不上大規模，亦非屬精心設計。再者被告人亦非知名人士，不能夠在那些社群中發揮大影響力。\n16.\n涉及煽動性罪行，雖屬防範性質，但必需帶出訊息，若防範失效，將對社會造成嚴重影響。即使是初犯者，須要判處阻嚇性刑罰，以遏止這類行為。\n17.\n本控罪最高罰則為入獄2年及罰款5,000元。\n判刑\n18.\n本席有考慮案情、求情陳詞及求情信件。整體而言，本案並非屬最嚴重類別，但仍然有其嚴重性。今次雖然不算精心設計，但畢竟有計劃，所發布的訊息不算低程度的煽動性，被告人以一群容易被挑起情緒的人為其對象，亦有潛伏危機。\n19.\n本案以7個半月為量刑起點，認罪下可獲三分之一折扣，減至5個月。除此以外，本席看不到有進一步減刑空間。故判被告人入獄5個月。\n（羅德泉）\n主任裁判官\n控方：由律政司高級檢控官李庭偉，代表香港特別行政區。\n辯方：由勞超傑律師事務所延聘蘇信恩大律師，代表被告人。\n[1]\n違反香港法例\n第200章\n《刑事罪行條例》\n第10(1)(a)條", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2023/WKCC000093_2023.doc", + "file_name": "WKCC000093_2023.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hkmagc/2025_HKMagC_3/ESCC003309_2024.txt b/zh_cases_hkmagc/2025_HKMagC_3/ESCC003309_2024.txt new file mode 100644 index 0000000..f89c3ca --- /dev/null +++ b/zh_cases_hkmagc/2025_HKMagC_3/ESCC003309_2024.txt @@ -0,0 +1,87 @@ + ESCC 3309/2024 +[2025] HKMagC 3 + + 香港特別行政區 + 東區裁判法院 +刑事案件2024年第3309號 + + __________________ + + 香港特別行政區 + + 訴 + +被告人 李樹銘 + __________________ + +主審裁判官： 總裁判官蘇惠德 +定罪日期： 2025年4月1日 +判刑日期： 2025年4月1日 +覆核日期： 2025年4月8日 + +判 刑 理 由 書 +引言 + +被告人被控八項「刑事損壞罪」及一項「出於煽動意圖作出一項或多項具煽動意圖的作為罪」(「煽動罪」)。 +經控辯雙方的認罪協商後，被告人承認四項「刑事損壞罪」 (控罪一、二、八和九)及一項「煽動罪」 (控罪六)，其餘四項控罪則獲控方不提證供起訴(控罪三、四、五及七) ，控罪被撤銷。 + +承認事實(針對控罪一、二、六、八和九) + +簡言之，被告人於2024年5月3日至12月13日期間，在灣仔區一帶公眾行人天橋的升降機門上，以黑色麥克筆塗鴉。內容如下： +「習維尼係終國殺人王」(控罪一「刑事損壞罪」)； +「支那土共死全家」及「共匪狗手淫曲係垃圾匪歌」(控罪二「刑事損壞罪」)； +「共匪冧檔」及「台灣獨立」(控罪六「煽動罪」)； +「支那共匪禍害港人一定要死全家及「支那共匪死全家」(控罪八「刑事損壞罪」)及 +「支那共匪禍害港人應該死全家」(控罪九「刑事損壞罪」。 +警方透過分析案發地點附近的閉路電視片段，鎖定了被告人的身份。2024年12月14日早上約7時41分，警員在巡邏期間截停了被告人查問，結果，被告人承認曾經塗鴉。警方在現場就控罪八作出拘捕，被告人警誡下表示塗鴉的目的是宣洩他對「47人」案裁決的不滿。 +在其後的錄影會面中，被告人警誡下承認，「習維尼」是指國家主席；「終國」代表中國；以「殺人王」來形容國家主席為獨裁者；以「狗」比喻國歌；希望中國共產黨倒台；主張台灣獨立；塗鴉的目的是表達對「47人」及「721」案裁決的不滿等等。 + +輕判請求 + +被告人現年53歲，未婚，與母親及兄長同住。他任職運輸工人，月入約港幣16,000元。 +辯方形容被告人是一名沉默寡言的人，以不當的方式表達對政府的不滿。辯方力陳，被告人的塗鴉沒有甚麼組織性可言，不涉及報復等嚴重的情節，純粹因衝動及愚蠢犯案，而造成的損壞不算嚴重，至於「煽動罪」，犯案手法的傳播力低，所帶來的風險不大。 +根據被告人兄長的口頭指示，被告人患有自閉症，應該屬於家族遺傳，但被告人從沒有求醫，沒有正式的醫學診斷。辯方坦言不會要求把案件押後，為被告索取任何的醫事報告。 +辯方呈上一封由被告人僱主及同事撰寫的求情信，證明被告人的工作態度良好、勤奮積極。 +他沒有任何刑事定罪紀錄。 + +量刑 + +「刑事損壞罪」和「煽動罪」均沒有量刑的指引。 +就「刑事損壞罪」而言，最高刑罰為監禁10年，量刑時必須以犯案的背景與目的、造成損壞的程度、招致的損壞、受害人蒙受的損失、修復所牽涉的金額等因素作出考量。 +至於「煽動罪」，按2024年3月23日正式生效的《維護國家安全條例》，立法機關大幅提高了此項罪行的最高刑罰至7年監禁。此舉無疑反映了加強打擊煽動罪行的立法原意及目的。由於煽動罪屬於危害國家安全的罪行之一，維護國家安全必然是量刑時的根本考慮。法庭在量刑時必須按案件的情節作出考慮，包括犯案的處境、手法、次數、規模、被煽動的對象、風險、後果等去釐定犯案者的具體刑責。此外，法庭亦必須顧及此項罪行具備預防性的要旨，目的是防止犯案者透過煽動性的作為，引起、激起、煽惑或感染他人，產生或認同犯案者的信念，從而以不合法的手段實現主張。因此，法庭必須以阻嚇性的刑罰為量刑的首要考慮，及早制止煽動性的行為所宣揚的思想在社會蔓延及滲透，帶來破壞社會秩序的風險和後果。 +就「刑事損壞罪」而論，本席接納辯方求情中所指，以麥克筆在公眾地方寫上字句，此類塗鴉所造成的損壞相對輕微，所導致的損失不大，修復的難度不高，而牽涉的維修費用亦有限。 +不過，本席不可忽視被告人犯案的背景與目的。被告人在公眾地方塗鴉，內容涉及詆毀國家領導人、咒罵中共政權、以帶有侮辱性的名稱稱呼祖國、貶毀代表民族尊嚴的國歌等。被告人的意圖是藉塗鴉去宣洩對政權和法庭裁決的不滿，發洩內心的仇恨。雖然被告人並不是被控以「煽動罪」，但法庭必須強調，即使行使言論自由也必須尊重及遵守法紀，被告人有權表達意見或不認同法庭的裁決，但不容許透過破壞公物和損害社會秩序的手段去達致其目的。 +本席考慮了被告人的犯案背景、手法、情節和所有因素後，每項「刑事損壞罪」 (即控罪一、二、八和九)均以4個半月為量刑起點，被告人認罪後各項控罪被判監3個月。 +有關「煽動罪」，塗鴉的內容涉及挑戰中央政權和鼓吹台灣獨立。明顯地，被告人以推翻政權為目標，主張國家分裂，危害國家統一及領土完整。被告人以塗鴉的手法，在灣仔區一帶的行人天橋的升降機門上犯案，明知那些地點人流不少，任何使用或等候升降機的公眾人士，必定可以清楚看到具煽動意圖的信息，造成散播效果。為了防範危害國家安全的行為所帶來的風險，法庭必須在刑罰上從嚴，以防止他人仿傚或被煽惑，避免為經已轉趨平和的社會氛圍帶來暗湧。 +至於辯方求情時指，煽動性內容不針對本土，造成的風險較低。本席認為，不論領土的所在地，任何危害領土完整的作為，均對國家安全構成風險。 +本席考慮了控罪六的案發處境、煽動內容的性質、對國家安全帶來的潛在風險和所有情況後，接納12個月為量刑起點，被告人的適時認罪，可把刑期下調至8個月。 + +量刑的整體性 + +就「刑事損壞罪」而言，被告人於四個不同的時間，於環境近似的公眾地方進行塗鴉，每一次的作為皆構成一項罪行。 +上訴法庭在The Queen v Tong Hoi-fung CACC 466/1987中重申: + “This Court has said time and time again that where there are more than one offence of a similar nature committed at different times it is right for the court to award a higher sentence than if there had been only one offence.” +誠如“Cross & Cheung – Sentencing in Hong Kong (11th edition)” 的作者所言 : +“Those who commit one offence must be discouraged from thinking that they can commit another with impunity” [49-22] +本席考慮了數罪併罰的原則和量刑的整體性後，命令控罪一、二、八和九的每項刑期中的2星期，與控罪六的刑期分期執行。是故，被告人的總刑期為10個月，這等同所有控罪的假定總量刑起點為15個月。 +除了被告人的適時認罪外，本案不具備其他有效的減刑因素。 +基於上述的理由，被告人被判監10個月。 + +覆核 + +判刑後，本席發現8星期的監禁相等於56天，與2個月代表的60天出現分歧，引致被告人服刑多4天的時間。因此，本席提出覆核。 +本席會按原先分期的幅度為準，命令控罪一、二、八和九的每項刑期中的2星期，與控罪六的刑期分期執行。是故，被告人的總刑期為8個月又8星期，這等同所有控罪的假定總量刑起點約為15個月。 + + +基於上述的理由，被告人被判監8個月又8星期。 + + + + + + + (蘇惠德) + 總裁判官 + +控方：由律政司檢控官楊澄代表香港特別行政區。 +辯方：由當值律師服務延聘關文渭大律師代表被告。 \ No newline at end of file diff --git a/zh_cases_hkmagc/2025_HKMagC_3/case.json b/zh_cases_hkmagc/2025_HKMagC_3/case.json new file mode 100644 index 0000000..ecccd28 --- /dev/null +++ b/zh_cases_hkmagc/2025_HKMagC_3/case.json @@ -0,0 +1,26 @@ +{ + "Date": "8 Apr, 2025", + "Action No.": "ESCC3309/2024", + "Neutral Cit.": "[2025] HKMagC 3", + "case_title": "香港特別行政區 訴 李樹銘", + "page_title": "香港特別行政區 訴 李樹銘 | [2025] HKMagC 3 | HKLII", + "case_history": [ + { + "name": "ESCC3309/2024", + "link": "https://www.hklii.hk/tc/appealhistory/ESCC/2024/3309" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hkmagc/2025/3", + "neutral_cit": "[2025] HKMagC 3", + "court_code": "HKMAGC", + "content": "html PUBLIC \"-//W3C//DTD XHTML 1.0 Transitional//EN\" \"http://www.w3.org/TR/html4/loose.dtd\"\nESCC3309/2024 香港特別行政區 訴 李樹銘\nESCC 3309/2024\n[2025] HKMagC 3\n香港特別行政區\n東區裁判法院\n刑事案件2024年第3309號\n__________________\n香港特別行政區\n訴\n被告人\n李樹銘\n__________________\n主審裁判官：\n總裁判官蘇惠德\n定罪日期：\n2025年4月1日\n判刑日期：\n2025年4月1日\n覆核日期：\n2025年4月8日\n判 刑 理 由 書\n引言\n1.\n被告人被控八項「刑事損壞罪」\n[1]\n及一項「出於煽動意圖作出一項或多項具煽動意圖的作為罪」(「煽動罪」)\n[2]\n。\n2.\n經控辯雙方的認罪協商後，被告人承認四項「刑事損壞罪」 (控罪一、二、八和九)及一項「煽動罪」 (控罪六)，其餘四項控罪則獲控方不提證供起訴(控罪三、四、五及七) ，控罪被撤銷。\n承認事實(針對控罪一、二、六、八和九)\n3.\n簡言之，被告人於2024年5月3日至12月13日期間，在灣仔區一帶公眾行人天橋的升降機門上，以黑色麥克筆塗鴉。內容如下：\ni. 「習維尼係終國殺人王」(控罪一「刑事損壞罪」)；\nii. 「支那土共死全家」及「共匪狗手淫曲係垃圾匪歌」(控罪二「刑事損壞罪」)；\niii. 「共匪冧檔」及「台灣獨立」(控罪六「煽動罪」)；\niv. 「支那共匪禍害港人一定要死全家及「支那共匪死全家」(控罪八「刑事損壞罪」)及\nv. 「支那共匪禍害港人應該死全家」(控罪九「刑事損壞罪」。\n4.\n警方透過分析案發地點附近的閉路電視片段，鎖定了被告人的身份。2024年12月14日早上約7時41分，警員在巡邏期間截停了被告人查問，結果，被告人承認曾經塗鴉。警方在現場就控罪八作出拘捕，被告人警誡下表示塗鴉的目的是宣洩他對「47人」案裁決的不滿。\n5.\n在其後的錄影會面中，被告人警誡下承認，「習維尼」是指國家主席；「終國」代表中國；以「殺人王」來形容國家主席為獨裁者；以「狗」比喻國歌；希望中國共產黨倒台；主張台灣獨立；塗鴉的目的是表達對「47人」及「721」案裁決的不滿等等。\n輕判請求\n6.\n被告人現年53歲，未婚，與母親及兄長同住。他任職運輸工人，月入約港幣16,000元。\n7.\n辯方形容被告人是一名沉默寡言的人，以不當的方式表達對政府的不滿。辯方力陳，被告人的塗鴉沒有甚麼組織性可言，不涉及報復等嚴重的情節，純粹因衝動及愚蠢犯案，而造成的損壞不算嚴重，至於「煽動罪」，犯案手法的傳播力低，所帶來的風險不大。\n8.\n根據被告人兄長的口頭指示，被告人患有自閉症，應該屬於家族遺傳，但被告人從沒有求醫，沒有正式的醫學診斷。辯方坦言不會要求把案件押後，為被告索取任何的醫事報告。\n9.\n辯方呈上一封由被告人僱主及同事撰寫的求情信，證明被告人的工作態度良好、勤奮積極。\n10.\n他沒有任何刑事定罪紀錄。\n量刑\n11.\n「刑事損壞罪」和「煽動罪」均沒有量刑的指引。\n12.\n就「刑事損壞罪」而言，最高刑罰為監禁10年，量刑時必須以犯案的背景與目的、造成損壞的程度、招致的損壞、受害人蒙受的損失、修復所牽涉的金額等因素作出考量。\n13.\n至於「煽動罪」，按2024年3月23日正式生效的《維護國家安全條例》，立法機關大幅提高了此項罪行的最高刑罰至7年監禁。此舉無疑反映了加強打擊煽動罪行的立法原意及目的。由於煽動罪屬於危害國家安全的罪行之一，維護國家安全必然是量刑時的根本考慮。法庭在量刑時必須按案件的情節作出考慮，包括犯案的處境、手法、次數、規模、被煽動的對象、風險、後果等去釐定犯案者的具體刑責。此外，法庭亦必須顧及此項罪行具備預防性的要旨，目的是防止犯案者透過煽動性的作為，引起、激起、煽惑或感染他人，產生或認同犯案者的信念，從而以不合法的手段實現主張。因此，法庭必須以阻嚇性的刑罰為量刑的首要考慮，及早制止煽動性的行為所宣揚的思想在社會蔓延及滲透，帶來破壞社會秩序的風險和後果。\n14.\n就「刑事損壞罪」而論，本席接納辯方求情中所指，以麥克筆在公眾地方寫上字句，此類塗鴉所造成的損壞相對輕微，所導致的損失不大，修復的難度不高，而牽涉的維修費用亦有限。\n15.\n不過，本席不可忽視被告人犯案的背景與目的。被告人在公眾地方塗鴉，內容涉及詆毀國家領導人、咒罵中共政權、以帶有侮辱性的名稱稱呼祖國、貶毀代表民族尊嚴的國歌等。被告人的意圖是藉塗鴉去宣洩對政權和法庭裁決的不滿，發洩內心的仇恨。雖然被告人並不是被控以「煽動罪」，但法庭必須強調，即使行使言論自由也必須尊重及遵守法紀，被告人有權表達意見或不認同法庭的裁決，但不容許透過破壞公物和損害社會秩序的手段去達致其目的。\n16.\n本席考慮了被告人的犯案背景、手法、情節和所有因素後，每項「刑事損壞罪」 (即控罪一、二、八和九)均以4個半月為量刑起點，被告人認罪後各項控罪被判監3個月。\n17.\n有關「煽動罪」，塗鴉的內容涉及挑戰中央政權和鼓吹台灣獨立。明顯地，被告人以推翻政權為目標，主張國家分裂，危害國家統一及領土完整。被告人以塗鴉的手法，在灣仔區一帶的行人天橋的升降機門上犯案，明知那些地點人流不少，任何使用或等候升降機的公眾人士，必定可以清楚看到具煽動意圖的信息，造成散播效果。為了防範危害國家安全的行為所帶來的風險，法庭必須在刑罰上從嚴，以防止他人仿傚或被煽惑，避免為經已轉趨平和的社會氛圍帶來暗湧。\n18.\n至於辯方求情時指，煽動性內容不針對本土，造成的風險較低。本席認為，不論領土的所在地，任何危害領土完整的作為，均對國家安全構成風險。\n19.\n本席考慮了控罪六的案發處境、煽動內容的性質、對國家安全帶來的潛在風險和所有情況後，接納12個月為量刑起點，被告人的適時認罪，可把刑期下調至8個月。\n量刑的整體性\n20.\n就「刑事損壞罪」而言，被告人於四個不同的時間，於環境近似的公眾地方進行塗鴉，每一次的作為皆構成一項罪行。\n21.\n上訴法庭在\nThe Queen v Tong Hoi-fung CACC 466/1987\n中重申:\n“This Court has said time and time again that where there are more than one offence of a similar nature committed at different times it is right for the court to award a higher sentence than if there had been only one offence.”\n22.\n誠如\n“Cross & Cheung – Sentencing in Hong Kong (11\nth\nedition)”\n的作者所言 :\n“\nThose who commit one offence must be discouraged from thinking that they can commit another with impunity” [49-22]\n23.\n本席考慮了數罪併罰的原則和量刑的整體性後，命令控罪一、二、八和九的每項刑期中的2星期，與控罪六的刑期分期執行。是故，被告人的總刑期為10個月，這等同所有控罪的假定總量刑起點為15個月。\n24.\n除了被告人的適時認罪外，本案不具備其他有效的減刑因素。\n25.\n基於上述的理由，被告人被判監10個月。\n覆核\n26.\n判刑後，本席發現8星期的監禁相等於56天，與2個月代表的60天出現分歧，引致被告人服刑多4天的時間。因此，本席提出覆核。\n27.\n本席會按原先分期的幅度為準，命令控罪一、二、八和九的每項刑期中的2星期，與控罪六的刑期分期執行。是故，被告人的總刑期為8個月又8星期，這等同所有控罪的假定總量刑起點約為15個月。\n28.\n基於上述的理由，被告人被判監8個月又8星期。\n(蘇惠德)\n總裁判官\n控方：由律政司檢控官楊澄代表香港特別行政區。\n辯方：由當值律師服務延聘關文渭大律師代表被告。\n[1]\n違反香港法例\n第200章\n《刑事罪行條例》\n第60(1)\n及\n63(2)條\n。\n[2]\n違反香港法例【2024年第6號】《維護國家安全條例》\n第24(1)(a)(i)條\n。", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2024/ESCC003309_2024.doc", + "file_name": "ESCC003309_2024.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hksct/2002_HKSCT_1/SCTC026290_2001.txt b/zh_cases_hksct/2002_HKSCT_1/SCTC026290_2001.txt new file mode 100644 index 0000000..ec89d84 --- /dev/null +++ b/zh_cases_hksct/2002_HKSCT_1/SCTC026290_2001.txt @@ -0,0 +1,176 @@ +香港特別行政區 +小額錢債審裁處 +2001年第26290號申索案 +（申索及反申索） + _______________________ + + 章錦城 第一申索人 + 何仿嫻 第二申索人 + + 與 + + International Resort Developments Limited 被告人 + _______________________ + + +主審審裁官 : 彭中屏審裁官 +聆訊日期 : 2002年2月5日及4月10日 +判決日期 : 2002年5月7日 +判決理由日期 : 2002年5月7日 + +判決理由 + +背景 + 這宗案件是有關現在一般稱為「時光共享」（Time Share）的合約。 + +2. 所謂「時光共享」，是一個分用渡假屋計劃，參加者繳付費用，可擁有在海外一個渡假屋某段日子（例如一星期）的享用權，參加者可在該段指定日子到渡假屋渡假。時光共享計劃在歐美曾頗為流行，其推銷手法更曾引起極大爭議。在英國，Director General of Fair Trading在1990年6月就時光共享合約的推銷手法呈交報告要求政府立例監管。因為這報告，英國在1992年通過Time Share Act 1992，再於1997年作出修訂，這些監管稍後再述。歐洲共同體更在1994年發出指引94/47/EC號，要求共同體成員國訂下法律對此行業作出監管。時光共享概念近年傳到香港，有關其推銷手法，市民已在電台、雜誌及報紙作出投訴。 + +3. 兩名申索人是夫婦（章先生及章太太），2001年5月17日被告人向他們成功銷售了一份Destinations Club渡假會會籍合約，會籍費用共115,500元，章太太並簽了授權書，授權被告人從其信用咭戶口中分18期支付金額，被告人即日及在翌日從章太太信用咭戶口分兩次扣取共35,500元。章先生簽約當晚回家發覺合約有疑點，翌日致電被告人查詢合約內容發覺更多問題，要求取消合約不獲答允。申索人指被告人作出不實陳述及合約不合情理，要求取消合約，取回已付訂金。被告人則反申索要求申索人付過期未付會籍供款50,000元。 + +申索人案情 +4. 章先生作供講述全部經過。章先生現年34歲，中五程度，任職繪圖員。章太太32歲，任職護士。約於2001年3月，被告人的職員致電申索人家進行電話訪問，期後被告人職員來電說送一份旅行優惠禮物給申索人，邀請他夫婦二人到被告人公司領獎。 + +5. 2001年5月17日晚上7時半，申索人夫婦去到被告人的公司，被告人職員說申索人必須完成一個維時45分鐘的講座才可取得禮物。講座完成後，推銷員李先生向他們不斷游說分享渡假屋的好處及加入RCI好處。期間申索人說要先回家考慮，李先生仍不斷游說，申索人夫婦想私下商量，借口說要去洗手間，但李先生亦跟著他們及站在洗手間門外等候，使他們無法單獨商討。游說期間，更有人突然打起鑼來，李先生說這表示有新會員加入，又出示一些參加者的感謝咭及相片，寫上了參加者的喜悅及對被告人的感謝。游說一番後，另一位女經理何小姐到來，她取了章先生的信用咭說要看他的銀行信用保證評級，回來後說他達到2級，可參加分期付款計劃，李即時播出音樂及替申索人拍照，在其他聽講座的人面前大聲說恭喜他們加入成為會員，更要章先生打鑼一下，事實上那時申索人根本未決定入會。打鑼後，李帶他們進入一貴賓室，另一職員鄺小姐講解合約，保證申索人可以在供款期間退出，不用繼續供款。鄺小姐講解時說得很快，雖然有同時出示中英文本，但她對申索人說不用看中文本，因為合約以英文為準，故此申索人夫婦沒有看中文本內容。他們依鄺小姐指示下簽署文件。 + +6. 章先生回家細閱文件後，發覺被告人職員沒有解釋所有條款，原來RCI轄下設施是要交換及視乎供求情況，不一定安排得到，而且須付交換費用。 + +7. 翌日，章先生致電被告人查詢，更得知他每年須支付的管理費，可隨時調整，並無上限，而且不使用渡假屋設施也要支付。他更須把會費供完才可經轉讓公司安排轉賣會籍，未供完前他必須每年支付管理費，更不可中途終止會籍。申索人翌日寧願放棄已付金額要求被告人終止合約，但不獲被告人接受；申索人向消費者委員會投訴不果，在本處入禀追討已付金額。 + +8. 章太太作供支持丈夫所說有關經過。 + +被告人案情 +9. 被告人指他們是獲得位於西班牙的Club La Costa授權出售其會籍。 + +10. 申索人所簽的合約就是購買了這一間會所的會籍。申索人可由2003年至2067年每年在Club La Costa屬下分佈12個國家26間渡假屋免費住宿一個星期，並免付RCI首三年年費。 + +11. 被告人之抗辯說沒有強迫申索人簽約，申索人已在中英文合約文件簽署，必須承擔未付餘款的責任。被告人否認其僱員誤導申索人。被告人傳召4名證人作供。 + +12. 第一辯方證人李先生是當日向申索人推銷的第一名職員，他作供重覆如何向申索人推銷會籍。他說被告人是Club La Costa在港分公司，Club La Costa在全球12個國家擁有26間渡假酒店，參與會員可每年在一段時間（時間視乎買入甚麼會籍）享用這些酒店。如果會員仍未滿足，更可加入RCI與其他擁有時光共享權的人交換權益，從而免費入住在世界各地更多的渡假屋。 + +13. 當日申索人來到被告人公司，李先生對申索人說因公司節省了大筆廣告費，所以送一張旅遊禮卷給他們。這禮卷（即申索人所呈堂的“Booking Form”）贈送20多個國家其中一個渡假屋的免費住宿，但申索人必須先聽完一個90分鐘的講座才可領取。禮卷中所說的渡假屋並非被告人所售會籍中包括的渡假屋。李先生自己亦不知道禮卷中所指渡假屋或酒店在那，他說申索人須向英國一間叫EBS Ltd的公司登記安排，然後才會獲通知酒店在那。 + +14. 李先生說他向申索人解釋他推銷的產品概念後，申索人表示興趣，李便請他的經理何小姐對申索人再作解釋。申索人表示經濟困難要求分期，所以經理取去章先生的信用咭向上級請示，稍後經理回來說老闆已批準可分期，他即時表示歡迎申索人入會，並請章先生大力敲鑼一下，李先生解釋這是歡迎儀式。 + +15. 李先生同意，申索人夫婦曾要求去洗手間，他對兩人說不用携帶手提物品，被告人職員會替他們看管。他帶申索人往返洗手間，並在洗手間外等候二人，目的只是表示慇勤。 + +16. 申索人最後簽約，這時兩人已留在公司3小時。 +17. 李先生沒有任何受僱於被告人的咭片，他沒有任何底薪，收入只靠成功推銷會籍的佣金。 + +18. 第二辯方證人湯小姐是被告人庭上代表，任職營業經理。她說CLC Developments Ltd是被告人總公司，經營不同行業，其中一項業務是經營Club La Costa。Destination Club屬於Club La Costa其中一項業務，擁有26間渡假屋，而被告人則獲Club La Costa授權在港推銷其會籍。參加了Club La Costa會籍的會員，亦可成為RCI會員。RCI是一間美國公司，與很多渡假屋發展商合作，使這些擁有時光共享權的人可互相交換他們的住宿權。 + +19. 本席在審訊中曾押後案件讓被告人呈交文件，證明Club La Costa擁有26間渡假屋的使用權可給會員享用，湯小姐只能呈上4張不同組織在1997年及1998年發出的信，這些信不足以證明這使用權。 + +20. 湯小姐說Club La Costa給被告人在香港推銷的會籍有4,000個，本席問她申索人終止合約被告人有何損失，她說不出被告人有什麼利潤損失。 + +21. 第三辯方證人何小姐是參與推銷過程的女經理。她作供承認曾取去章先生信用咭到公司行政部評核他的信用評級，她否認對申索人說這是銀行評級。她曾向申索人說明每年管理費都會作調整。 + +22. 第四辯方證人鄺小姐作供說她向申索人講解所有合約文件內容，共用了20至30分鐘時間，所有合約文件在簽約前已給申索人。她有解釋管理費每年可調整，取消會籍仍要付尾數，除非申索人找到人替代。 + +23. 被告人呈上一些公司檔案說這些是會員的入住渡假屋安排記錄。被告人公司周年申報表顯示，被告人已發行股份2元，董事為2名外籍人士，居於海外，股份持有人為一間本港公司及一間海外公司。 + +不爭議事實 +24. 本案有以下不爭議事實：- + 1. 被告人先以電話訪問，再通知申索人往被告人公司領獎。 + 2. 申索人到達後須先參加一個講座才可領取獎品，之後被告人職員開始推銷。 + 3. 被告人3個職員參與推銷過程。 + 4. 推銷期間，被告人職員請參加講座者打鑼。 + 5. 申索人夫婦要求去洗手間，被告人職員帶引來回，期間被告人職員在洗手間門外等候。 + 6. 被告人職員取去章先生信用咭說要評核他信用級數，但付款時郤用章太太信用咭。 + 7. 申索人夫婦簽下合約分期清付，會籍全費115,500元，被告人職員取章太太信用咭即時支付17,750元，章太太並簽下授權書從信用咭戶口分期扣數，第二期在翌日被扣數17,750元，餘下款項分16期每月付5,000元，申索人已付金額35,500元。 + 8. 申索人簽約時已留在被告人公司3小時。 + 9. 未供完所有款項，申索人無權使用渡假屋，但每年要付管理費，管理費每年可調整，現時費用為2,800元。 + 10. 簽約後兩日，申索人要求取消合約，被告人不接受。 + 11. 被告人職員沒有解釋《住宿規則》（Rules of Occupation）。 + +爭議事實 +25. 1. 被告人職員有沒有解釋合約重要條款，尤其有關於管理年費的調整。 + 2. 被告人職員有否作失實陳述說會籍可在供款期間轉讓。 + 3. 被告人職員有否作失實陳述說申索人可在中途終止會籍。 + +事實的認定 +26. 本席觀察申索人夫婦多日，本席認為他們都是誠實證人。被告人的證人作供時刻意向本席表現已對申索人詳細解釋合約，他們看來都是訓練有素的推銷員及證人，但是事實上李先生郤是沒有解釋旅遊禮卷上的條件，鄺小姐亦沒有解釋《住宿規則》；何小姐說取章先生信用咭是由公司評定他的信用級數，本席不相信她所說的話，如果這評級是重要的話，沒有理由在簽約時不取章先生信用咭而取章太太的信用咭支付。 + +27. 本席接受申索人夫婦的所有證供作為本案事實的認定。本席認定被告人職員沒有詳盡講解合約，沒有說明管理費每年可調整及加入RCI須付年費，被告人職員更誤導申索人會籍可中途轉讓及終止。 + +28. 但是本席認為這些事實上的爭議並不重要，因為即使只基於不爭議的事實，本席認為合約亦應被撤銷，原因是這合約「不合情理」。 + +不合情理合約 +29. 先要說明，本席是絕對尊重普通法中「自由立約」精神，本席是無權任意撤銷本席主觀認為不公平的合約。而且一般而言，立約者一經簽署，即使沒有看清楚或不知道內容，亦受合約條款之約束。但是法庭是有權把極不公平的合約撤銷的。 + +30. 撤銷極不公平合約的做法早已在19世紀英國衡平法中產生。這原則在Fry v. Lane (1888) 40 Ch.D312再次在法庭闡述。不過這概念在英國後來的發展不及美加澳紐等其他普通法國家。後者國家是以“不合情理合約”（Unconscionability）概念更廣泛地把不公平合約撤銷。 + +31. 英國在近年似乎亦跟隨這些國家的“不合情理合約”概念。樞密院在Boustany v. Pigott (1993) 69 P&CR以不合情理為由撤銷合約，並列出不合情理的準則。 + +32. 在香港，不合情理合約概念在1995年10月因通過了香港法例第458章《不合情理合約條例》得到新的發展。這條例只適用於銷售貨物及服務合約，合約一方必須以消費者身份交易。這條例開宗明義說明「旨在授權法庭就某些經裁定屬不合情理的合約給予濟助」。這條例主要是參考澳洲的Contract Review Act (1980) NSW。本席認為由於這條例，香港法庭已不受英國傳統合約法概念的約束，在消費者合約中得到更大權力以昭公義。正如任懿君法官在Hang Seng Credit Card Ltd. v. Tsang Nga Lee HCA13228/1999案中判詞第12頁所說“The UCO is meant to give the court new power to do justice in consumer contract ……. In applying the UCO, the court is not shackled by the traditional or classic theories in contract law”。 + +《不合情理合約條例》 +33. 第5條：- + (1) 就任何貨品售賣合約或服務提供合約而言，如其中一方是以消費者身分交易，而法庭裁定該合約或其中任何部分在立約時的情況下已屬不合情理，則法庭可 —— + (a) 拒絕強制執行該合約； + (b) 強制執行合約中不合情理部分以外的其餘部分；及 + (c) 限制任何不合情理部分的適用範圍，或修正或更改該等不合情理部分，以避免產生任何不合情理的結果。 + (2) 任何人如聲稱某合約或其中部分是不合情理的，須由該人證明其所聲稱之事。 + +34. 第6條：- + (1) 法庭在決定某合約或其中部分在立約時的情況下是否屬不合情理時，可考慮（但不限於）以下事項 —— + (a) 消費者與另一方之間議價地位的相對實力； + (b) 是否由於另一方所作出的行為，以致消費者須遵守一些條件，而那些條件對於保障另一方的合法權益而言，按理並非必要； + (c) 消費者是否能夠明白與提供貨品或服務或可能提供貨品或服務有關的任何文件； + (d) 有關提供貨品或服務或可能提供貨品或服務方面，另一方或代表另一方行事的人，有否對消費者或代表消費者行事的人施加不當的影響或壓力，或運用任何不公平的手法；及 + (e) 消費者可向另一方以外的人獲得相同或同等貨品或服務的情況及所需付的款額。 + (2) 在決定某合約或其中部分在立約時的情況下是否屬不合情理時 —— + (a) 法庭不得考慮在因立約時無法合理地預見的情況所引致的不合情理之事；及 + (b) 法庭可考慮在本條例生效日期前所作出的行為及已存在的情況。 + (3) 法庭在考慮行使其在第5條下的權力，就裁定為不合情理的合約或其中部分給予濟助時，可考慮訴訟各方自立約後在履行合約方面的行為。 + +35. 這些因素不是法庭唯一可考慮因素。 + +考慮因素 +36. 申索人無疑是以消費者身份交易，合約是貨品售賣或提供服務，《不合情理合約條例》在本案中適用；本席認為消費者不單可以不合情理為由抗辯，並且可以此為訴因。 +37. 本席認為案中以下因素值得考慮。 + +38. 本席考慮的第一點是雙方的相對實力。申索人與被告人之間的議價地位的實力明顯地是不對等的，合約文件都是被告人所草擬的標準合約，申索人根本無異議能力。 + +39. 本席考慮的第二點是申索人是否明白有關的合約文件。被告人職員聲稱在20至30分鐘內講解了所有文件，這些文件包括：《會員協議》（Membership Agreement）、《會員協議條件》（Membership Agreement Conditions）及《會員聲明》（Member’s Declaration）。另外，申索人獲派一本《住宿規則》。時光共享的概念創新，但是合約文件用字艱深，內容繁複，尤其是《住宿規則》內提及的管理合約及信託法概念，本席在閱讀這些文件時亦不無困難，申索人根本不可能在半小時的解釋下理解合約內容及其法律意義。事實上，被告人職員承認並無解釋《住宿規則》，本席亦懷疑他們是否有能力作出解釋。 + +40. 本席考慮的第三點是合約對申索人是嚴重不利的（special disadvantage）。被告人聲稱售賣給申索人的是在西班牙Club La Costa的會籍，申索人付全費後可每年1個星期免費住宿Club La Costa在全球12個國家26間渡假屋之一，更可經RCI交換住宿權，而得到更多的渡假屋選擇。但是《會員協議》條件卻又說這協議及《住宿規則》為合約之全部，並凌駕之前所有協議及理解。這些合約文件從沒說明被告人所聲稱的渡假屋數量、地點及設施。雖然被告人給予申索人一張“Destinations Club Portfolio”，但這單張在雙方簽署文件沒有提及過，單張亦無說明渡假屋地點及設施已否興建。本席認為被告人聲稱申索人可住的渡假屋，根本無清晰的書面合約保證。即使在被告人給申索人的一個介紹其渡假屋精美文件夾內資料，亦只是提及Club La Costa經營及發展的渡假村分佈在全球8個不同的國家內。 + +41. 由於這些含糊之處，本席要求被告人提供證據證明其聲稱擁有渡假屋的使用權，但被告人未能提出證據。被告人在未能證明其履約能力下，反而要求申索人先履行其付款的責任。更甚的是，申索人一日未付清全數，一日無權享用渡假屋，但郤要每年支付管理費。換句話說，申索人只可在付清全數後才可知道被告人能否提供到其聲稱的服務。 + +42. 再者，倘若被告人不能履行責任，申索人追究必會遇上很大困難。從被告人提交的文件可見這合約涉及不同名稱組織，包括：International Resort Developments Ltd, International Resort Developments (HK) Ltd., CLC Developments Ltd, CLC Management Services Ltd, First National Trustee Company, Destinations Title Ltd, Club La Costa, Destinations Club, Destinations Asia Pacific Club, RCI, RCI Asia-Pacific Ptc. Ltd.及Well Coronet Ltd，各組織之間的關係及法律地位並不清晰，《住宿規則》更說明受人島（Isle of man）法律監管。如果被告人不履行或無能力履行責任，訴訟應在那展開？用什麼地區法律？告那間公司呢？申索人在追討上肯定會遇上極大困難。申索人所付金額龐大，但相反地得到的保障甚少。 + +43. 本席考慮的第四點因素是申索人未有獲獨立意見。有關合約涉及金額龐大的責任，合約內容及所涉法律複雜，牽涉公司衆多，追究責任困難，申索人在沒有律師或獨立人士意見下被催促決定，必定不能做到理智的決定。 + +44. 本席考慮的第五點因素，亦是最重要一點，是被告人的行為並不公道，其推銷方法對申索人做成不當的影響及壓力。被告人先施以利誘，誘使申索人參加講座，申索人本來只是來領獎，沒有準備買入渡假屋會籍，在毫無心理準備下，被訓練有素的職員先後不斷游說三小時。沒有底薪只有佣金的推銷員為求成交，自然把產品好處說得天花亂墜。被告人更刻意營造成交氣氛，使聽講座的人以為已經有其他人即時參加會籍，降低其介心。推銷員更極力使申索人沒有冷靜考慮的機會，章先生已要求回家考慮，推銷員仍不放棄游說。申索人夫婦要求去洗手間欲以此機會商討，推銷員叫他們留下隨身物品，並陪同他們到洗手間，又在門外等候，明顯地是故意令他們無法單獨商討。本席認為這些高壓的推銷手段，不符商業道德。 + +45. 被告人的推銷手段，正正就是在英國Director General of Fair Trading在1990年6月就「時光共享」呈交的報告中所批評的高壓推銷手段。這些高壓手段引起了社會廣泛關注，英國在1992年立下Time Share Act，更在1997年3月作出Time Share Regulations修訂。這些明文法律，就是針對這些高壓手段而作出明文監管，違反者可予刑事懲罰。這些規定包括： + + 1. 已簽約者有權在14天冷靜期內無條件取消合約，冷靜期更可因合約未列明必須資料而延長至3個月再加10日； + + 2. 推銷者必須在合約文件清楚通知消費人有取消合約權利，否則屬刑事罪行； + + 3. 嚴禁銷售者在冷靜期完結前向消費人索取或收受預收款項； + + 4. 合約文件必須包含一些規定資料，如：合約當事人的法律地位、身份及一般所在地，渡假屋所在地點，有關服務等等。 + +46. 因以上理由，本席裁定申索人與被告人所簽合約是不合情理合約，在本案情況下，整個合約須予撤銷，被告人須歸還申索人已付之35,500元。 +47. 以上是基於不爭議的事實作出的裁定。即使本席這看法有所偏差，本席仍然會作出同樣判決。 + +失實陳述 +48. 本席已裁定被告人的僱員作出失實陳述，申索人雖然未能證明這是欺詐性的，但被告人未能證明有合理理由相信為事實，申索人相信這些不實陳述而簽約，在本案情況下，本席認為金錢賠償是不切實際的，所以整個合約應予撤銷。 + +49. 最後即使合約不應撤銷，被告人亦沒有理由沒收已付款項兼追餘款。即使合約有效而申索人違約，被告人亦須證明其損失，並且要採取合理行為減少損失，但被告人證明不到有任何損失，亦沒有證明採取行動減少損失。至於已付款項，本席認為申索人已付款項並非誠意金性質的訂金而只是部份付款，在被告人未能證明有任何損失情況下，申索人毋須作出賠償，已付款項必須歸還。 + +命令 +50. 基於上述原因，本席撤銷這個合約。判申索人勝訴，被告人敗訴，被告人須付申索人35,500元連同利息由裁決日起以判定利率計算至清付，並須付申索人每人訟費500元，反申索被撤銷。 + +題外意見 +51. 時光共享概念本身並無不妥，本席亦相信有些已參加者對其會籍十分滿意，問題只出於其推銷方法。歐洲國家自1992年紛紛立法監管這行業。時光共享概念傳入香港幾年來，推銷公司的手法備受爭議。從消費者委員會的統計，有關時光共享合約的投訴在2001年急增一倍多至171宗，2002年至4月為止是65宗；本審裁處在2001年及2002年至今已收入禀有關時光共享合約的案件多達70宗，這行業現在的情況看來已到了值得政府關注的地步，考慮是否需如外國立法監管。本席認為明文立法監管，不獨可保障消費者利益，增加市民對此行業的信心，更可使這行業正面地發展。正如英國當時的Director General of Fair Trading, Sir Gordon Borrie在其報 告中第1.11段所說 “I have concluded that legislation, not just self-regulation, is needed because of the financial importance to buyers, because timeshare is an infrequent and complicated purchase, and because the industry has attracted unethical operators who will be bound by nothing less.”。 + + + + + ____________________ + （彭中屏） + 小額錢債審裁處 + 署理主任審裁官 \ No newline at end of file diff --git a/zh_cases_hksct/2002_HKSCT_1/case.json b/zh_cases_hksct/2002_HKSCT_1/case.json new file mode 100644 index 0000000..5ee5699 --- /dev/null +++ b/zh_cases_hksct/2002_HKSCT_1/case.json @@ -0,0 +1,26 @@ +{ + "Date": "7 May, 2002", + "Action No.": "SCTC26290/2001", + "Neutral Cit.": "[2002] HKSCT 1", + "case_title": "章錦城及另一人 訴 INTERNATIONAL RESORT DEVELOPMENTS LTD.", + "page_title": "章錦城及另一人 訴 INTERNATIONAL RESORT DEVELOPMENTS LTD. | [2002] HKSCT 1 | HKLII", + "case_history": [ + { + "name": "SCTC26290/2001", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2001/26290" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hksct/2002/1", + "neutral_cit": "[2002] HKSCT 1", + "court_code": "HKSCT", + "content": "SCTC026290/2001 章錦城及另一人 訴 International Resort Developments Ltd.\nSCTC26290/2001\n香港特別行政區\n小額錢債審裁處\n2001年第26290號申索案\n（申索及反申索）\n_______________________\n章錦城\n第一申索人\n何仿嫻\n第二申索人\n與\nInternational Resort Developments Limited\n被告人\n_______________________\n主審審裁官: 彭中屏審裁官\n聆訊日期: 2002年2月5日及4月10日\n判決日期: 2002年5月7日\n判決理由日期: 2002年5月7日\n___________\n判決理由\n___________\n背景\n這宗案件是有關現在一般稱為「時光共享」（\nTime Share\n）的合約。\n2.\n所謂「時光共享」，是一個分用渡假屋計劃，參加者繳付費用，可擁有在海外一個渡假屋某段日子（例如一星期）的享用權，參加者可在該段指定日子到渡假屋渡假。時光共享計劃在歐美曾頗為流行，其推銷手法更曾引起極大爭議。在英國，\nDirector General of Fair Trading\n在1990年6月就時光共享合約的推銷手法呈交報告要求政府立例監管。因為這報告，英國在1992年通過\nTime Share Act 1992，\n再於1997年作出修訂，這些監管稍後再述。歐洲共同體更在1994年發出指引94/47/EC號，要求共同體成員國訂下法律對此行業作出監管。時光共享概念近年傳到香港，有關其推銷手法，市民已在電台、雜誌及報紙作出投訴。\n3.\n兩名申索人是夫婦（章先生及章太太），2001年5月17日被告人向他們成功銷售了一份\nDestinations Club\n渡假會會籍合約，會籍費用共115,500元，章太太並簽了授權書，授權被告人從其信用咭戶口中分18期支付金額，被告人即日及在翌日從章太太信用咭戶口分兩次扣取共35,500元。章先生簽約當晚回家發覺合約有疑點，翌日致電被告人查詢合約內容發覺更多問題，要求取消合約不獲答允。申索人指被告人作出不實陳述及合約不合情理，要求取消合約，取回已付訂金。被告人則反申索要求申索人付過期未付會籍供款50,000元。\n申索人案情\n4.\n章先生作供講述全部經過。章先生現年34歲，中五程度，任職繪圖員。章太太32歲，任職護士。約於2001年3月，被告人的職員致電申索人家裡進行電話訪問，期後被告人職員來電說送一份旅行優惠禮物給申索人，邀請他夫婦二人到被告人公司領獎。\n5.\n2001年5月17日晚上7時半，申索人夫婦去到被告人的公司，被告人職員說申索人必須完成一個維時45分鐘的講座才可取得禮物。講座完成後，推銷員李先生向他們不斷游說分享渡假屋的好處及加入RCI好處。期間申索人說要先回家考慮，李先生仍不斷游說，申索人夫婦想私下商量，借口說要去洗手間，但李先生亦跟著他們及站在洗手間門外等候，使他們無法單獨商討。游說期間，更有人突然打起鑼來，李先生說這表示有新會員加入，又出示一些參加者的感謝咭及相片，寫上了參加者的喜悅及對被告人的感謝。游說一番後，另一位女經理何小姐到來，她取了章先生的信用咭說要看他的銀行信用保證評級，回來後說他達到2級，可參加分期付款計劃，李即時播出音樂及替申索人拍照，在其他聽講座的人面前大聲說恭喜他們加入成為會員，更要章先生打鑼一下，事實上那時申索人根本未決定入會。打鑼後，李帶他們進入一貴賓室，另一職員鄺小姐講解合約，保證申索人可以在供款期間退出，不用繼續供款。鄺小姐講解時說得很快，雖然有同時出示中英文本，但她對申索人說不用看中文本，因為合約以英文為準，故此申索人夫婦沒有看中文本內容。他們依鄺小姐指示下簽署文件。\n6.\n章先生回家細閱文件後，發覺被告人職員沒有解釋所有條款，原來RCI轄下設施是要交換及視乎供求情況，不一定安排得到，而且須付交換費用。\n7.\n翌日，章先生致電被告人查詢，更得知他每年須支付的管理費，可隨時調整，並無上限，而且不使用渡假屋設施也要支付。他更須把會費供完才可經轉讓公司安排轉賣會籍，未供完前他必須每年支付管理費，更不可中途終止會籍。申索人翌日寧願放棄已付金額要求被告人終止合約，但不獲被告人接受；申索人向消費者委員會投訴不果，在本處入禀追討已付金額。\n8.\n章太太作供支持丈夫所說有關經過。\n被告人案情\n9.\n被告人指他們是獲得位於西班牙的\nClub La Costa\n授權出售其會籍。\n10.\n申索人所簽的合約就是購買了這一間會所的會籍。申索人可由2003年至2067年每年在Club La Costa屬下分佈12個國家26間渡假屋免費住宿一個星期，並免付RCI首三年年費。\n11.\n被告人之抗辯說沒有強迫申索人簽約，申索人已在中英文合約文件簽署，必須承擔未付餘款的責任。被告人否認其僱員誤導申索人。被告人傳召4名證人作供。\n12.\n第一辯方證人李先生是當日向申索人推銷的第一名職員，他作供重覆如何向申索人推銷會籍。他說被告人是Club La Costa在港分公司，\nClub La Costa\n在全球12個國家擁有26間渡假酒店，參與會員可每年在一段時間（時間視乎買入甚麼會籍）享用這些酒店。如果會員仍未滿足，更可加入\nRCI\n與其他擁有時光共享權的人交換權益，從而免費入住在世界各地更多的渡假屋。\n13.\n當日申索人來到被告人公司，李先生對申索人說因公司節省了大筆廣告費，所以送一張旅遊禮卷給他們。這禮卷（即申索人所呈堂的\n“Booking Form”\n）贈送20多個國家其中一個渡假屋的免費住宿，但申索人必須先聽完一個90分鐘的講座才可領取。禮卷中所說的渡假屋並非被告人所售會籍中包括的渡假屋。李先生自己亦不知道禮卷中所指渡假屋或酒店在那裡，他說申索人須向英國一間叫\nEBS Ltd\n的公司登記安排，然後才會獲通知酒店在那?。\n14.\n李先生說他向申索人解釋他推銷的產品概念後，申索人表示興趣，李便請他的經理何小姐對申索人再作解釋。申索人表示經濟困難要求分期，所以經理取去章先生的信用咭向上級請示，稍後經理回來說老闆已批準可分期，他即時表示歡迎申索人入會，並請章先生大力敲鑼一下，李先生解釋這是歡迎儀式。\n15.\n李先生同意，申索人夫婦曾要求去洗手間，他對兩人說不用携帶手提物品，被告人職員會替他們看管。他帶申索人往返洗手間，並在洗手間外等候二人，目的只是表示慇勤。\n16.\n申索人最後簽約，這時兩人已留在公司3小時。\n17.\n李先生沒有任何受僱於被告人的咭片，他沒有任何底薪，收入只靠成功推銷會籍的佣金。\n18.\n第二辯方證人湯小姐是被告人庭上代表，任職營業經理。她說\nCLC Developments Ltd\n是被告人總公司，經營不同行業，其中一項業務是經營\nClub La Costa。Destination Club\n屬於\nClub La Costa\n其中一項業務，擁有26間渡假屋，而被告人則獲\nClub La Costa\n授權在港推銷其會籍。參加了Club La Costa會籍的會員，亦可成為\nRCI\n會員。\nRCI\n是一間美國公司，與很多渡假屋發展商合作，使這些擁有時光共享權的人可互相交換他們的住宿權。\n19.\n本席在審訊中曾押後案件讓被告人呈交文件，證明Club La Costa擁有26間渡假屋的使用權可給會員享用，湯小姐只能呈上4張不同組織在1997年及1998年發出的信，這些信不足以證明這使用權。\n20.\n湯小姐說Club La Costa給被告人在香港推銷的會籍有4,000個，本席問她申索人終止合約被告人有何損失，她說不出被告人有什麼利潤損失。\n21.\n第三辯方證人何小姐是參與推銷過程的女經理。她作供承認曾取去章先生信用咭到公司行政部評核他的信用評級，她否認對申索人說這是銀行評級。她曾向申索人說明每年管理費都會作調整。\n22.\n第四辯方證人鄺小姐作供說她向申索人講解所有合約文件內容，共用了20至30分鐘時間，所有合約文件在簽約前已給申索人。她有解釋管理費每年可調整，取消會籍仍要付尾數，除非申索人找到人替代。\n23.\n被告人呈上一些公司檔案說這些是會員的入住渡假屋安排記錄。被告人公司周年申報表顯示，被告人已發行股份2元，董事為2名外籍人士，居於海外，股份持有人為一間本港公司及一間海外公司。\n不爭議事實\n24.\n本案有以下不爭議事實：-\n(1) 被告人先以電話訪問，再通知申索人往被告人公司領獎。\n(2) 申索人到達後須先參加一個講座才可領取獎品，之後被告人職員開始推銷。\n(3) 被告人3個職員參與推銷過程。\n(4) 推銷期間，被告人職員請參加講座者打鑼。\n(5) 申索人夫婦要求去洗手間，被告人職員帶引來回，期間被告人職員在洗手間門外等候。\n(6) 被告人職員取去章先生信用咭說要評核他信用級數，但付款時郤用章太太信用咭。\n(7) 申索人夫婦簽下合約分期清付，會籍全費115,500元，被告人職員取章太太信用咭即時支付17,750元，章太太並簽下授權書從信用咭戶口分期扣數，第二期在翌日被扣數17,750元，餘下款項分16期每月付5,000元，申索人已付金額35,500元。\n(8) 申索人簽約時已留在被告人公司3小時。\n(9) 未供完所有款項，申索人無權使用渡假屋，但每年要付管理費，管理費每年可調整，現時費用為2,800元。\n(10) 簽約後兩日，申索人要求取消合約，被告人不接受。\n(11) 被告人職員沒有解釋《住宿規則》（\nRules of Occupation\n）。\n爭議事實\n25.\n1. 被告人職員有沒有解釋合約重要條款，尤其有關於管理年費的調整。\n2. 被告人職員有否作失實陳述說會籍可在供款期間轉讓。\n3. 被告人職員有否作失實陳述說申索人可在中途終止會籍。\n事實的認定\n26.\n本席觀察申索人夫婦多日，本席認為他們都是誠實證人。被告人的證人作供時刻意向本席表現已對申索人詳細解釋合約，他們看來都是訓練有素的推銷員及證人，但是事實上李先生郤是沒有解釋旅遊禮卷上的條件，鄺小姐亦沒有解釋《住宿規則》；何小姐說取章先生信用咭是由公司評定他的信用級數，本席不相信她所說的話，如果這評級是重要的話，沒有理由在簽約時不取章先生信用咭而取章太太的信用咭支付。\n27.\n本席接受申索人夫婦的所有證供作為本案事實的認定。本席認定被告人職員沒有詳盡講解合約，沒有說明管理費每年可調整及加入RCI須付年費，被告人職員更誤導申索人會籍可中途轉讓及終止。\n28.\n但是本席認為這些事實上的爭議並不重要，因為即使只基於不爭議的事實，本席認為合約亦應被撤銷，原因是這合約「不合情理」。\n不合情理合約\n29.\n先要說明，本席是絕對尊重普通法中「自由立約」精神，本席是無權任意撤銷本席主觀認為不公平的合約。而且一般而言，立約者一經簽署，即使沒有看清楚或不知道內容，亦受合約條款之約束。但是法庭是有權把極不公平的合約撤銷的。\n30.\n撤銷極不公平合約的做法早已在19世紀英國衡平法中產生。這原則在\nFry v. Lane\n(1888) 40 Ch.D312\n再次在法庭闡述。不過這概念在英國後來的發展不及美加澳紐等其他普通法國家。後者國家是以“不合情理合約”（\nUnconscionability\n）概念更廣泛地把不公平合約撤銷。\n31.\n英國在近年似乎亦跟隨這些國家的“不合情理合約”概念。樞密院在\nBoustany v. Pigott\n(1993) 69 P&CR\n以不合情理為由撤銷合約，並列出不合情理的準則。\n32.\n在香港，不合情理合約概念在1995年10月因通過了香港法例第458章《不合情理合約條例》得到新的發展。這條例只適用於銷售貨物及服務合約，合約一方必須以消費者身份交易。這條例開宗明義說明「旨在授權法庭就某些經裁定屬不合情理的合約給予濟助」。這條例主要是參考澳洲的\nContract Review Act (1980) NSW\n。本席認為由於這條例，香港法庭已不受英國傳統合約法概念的約束，在消費者合約中得到更大權力以昭公義。正如任懿君法官在\nHang Seng Credit Card Ltd. v. Tsang Nga Lee HCA13228/1999\n案中判詞第12頁所說\n“The UCO is meant to give the court new power to do justice in consumer contract ....... In applying the UCO, the court is not shackled by the traditional or classic theories in contract law”\n。\n《不合情理合約條例》\n33.\n第5條：-\n(1) 就任何貨品售賣合約或服務提供合約而言，如其中一方是以消費者身分交易，而法庭裁定該合約或其中任何部分在立約時的情況下已屬不合情理，則法庭可 -\n(a) 拒絕強制執行該合約；\n(b) 強制執行合約中不合情理部分以外的其餘部分；及\n(c) 限制任何不合情理部分的適用範圍，或修正或更改該等不合情理部分，以避免產生任何不合情理的結果。\n(2) 任何人如聲稱某合約或其中部分是不合情理的，須由該人證明其所聲稱之事。\n34.\n第6條：-\n(1) 法庭在決定某合約或其中部分在立約時的情況下是否屬不合情理時，可考慮（但不限於）以下事項\n(a) 消費者與另一方之間議價地位的相對實力；\n(b) 是否由於另一方所作出的行為，以致消費者須遵守一些條件，而那些條件對於保障另一方的合法權益而言，按理並非必要；\n(c) 消費者是否能夠明白與提供貨品或服務或可能提供貨品或服務有關的任何文件；\n(d) 有關提供貨品或服務或可能提供貨品或服務方面，另一方或代表另一方行事的人，有否對消費者或代表消費者行事的人施加不當的影響或壓力，或運用任何不公平的手法；及\n(e) 消費者可向另一方以外的人獲得相同或同等貨品或服務的情況及所需付的款額。\n(2) 在決定某合約或其中部分在立約時的情況下是否屬不合情理時\n(a) 法庭不得考慮在因立約時無法合理地預見的情況所引致的不合情理之事；及\n(b) 法庭可考慮在本條例生效日期前所作出的行為及已存在的情況。\n(3) 法庭在考慮行使其在第5條下的權力，就裁定為不合情理的合約或其中部分給予濟助時，可考慮訴訟各方自立約後在履行合約方面的行為。\n35.\n這些因素不是法庭唯一可考慮因素。\n考慮因素\n36.\n申索人無疑是以消費者身份交易，合約是貨品售賣或提供服務，《不合情理合約條例》在本案中適用；本席認為消費者不單可以不合情理為由抗辯，並且可以此為訴因。\n37.\n本席認為案中以下因素值得考慮。\n38.\n本席考慮的第一點是雙方的相對實力。申索人與被告人之間的議價地位的實力明顯地是不對等的，合約文件都是被告人所草擬的標準合約，申索人根本無異議能力。\n39.\n本席考慮的第二點是申索人是否明白有關的合約文件。被告人職員聲稱在20至30分鐘內講解了所有文件，這些文件包括：《會員協議》（\nMembership Agreement\n）、《會員協議條件》（\nMembership Agreement Conditions\n）及《會員聲明》（\nMember's Declaration\n）。另外，申索人獲派一本《住宿規則》。時光共享的概念創新，但是合約文件用字艱深，內容繁複，尤其是《住宿規則》內提及的管理合約及信託法概念，本席在閱讀這些文件時亦不無困難，申索人根本不可能在半小時的解釋下理解合約內容及其法律意義。事實上，被告人職員承認並無解釋《住宿規則》，本席亦懷疑他們是否有能力作出解釋。\n40.\n本席考慮的第三點是合約對申索人是嚴重不利的（\nspecial disadvantage\n）。被告人聲稱售賣給申索人的是在西班牙\nClub La Costa\n的會籍，申索人付全費後可每年1個星期免費住宿\nClub La Costa\n在全球12個國家26間渡假屋之一，更可經RCI交換住宿權，而得到更多的渡假屋選擇。但是《會員協議》條件卻又說這協議及《住宿規則》為合約之全部，並凌駕之前所有協議及理解。這些合約文件從沒說明被告人所聲稱的渡假屋數量、地點及設施。雖然被告人給予申索人一張\n“Destinations Club Portfolio”\n，但這單張在雙方簽署文件沒有提及過，單張亦無說明渡假屋地點及設施已否興建。本席認為被告人聲稱申索人可住的渡假屋，根本無清晰的書面合約保證。即使在被告人給申索人的一個介紹其渡假屋精美文件夾內資料，亦只是提及\nClub La Costa\n經營及發展的渡假村分佈在全球8個不同的國家內。\n41.\n由於這些含糊之處，本席要求被告人提供證據證明其聲稱擁有渡假屋的使用權，但被告人未能提出證據。被告人在未能證明其履約能力下，反而要求申索人先履行其付款的責任。更甚的是，申索人一日未付清全數，一日無權享用渡假屋，但郤要每年支付管理費。換句話說，申索人只可在付清全數後才可知道被告人能否提供到其聲稱的服務。\n42.\n再者，倘若被告人不能履行責任，申索人追究必會遇上很大困難。從被告人提交的文件可見這合約涉及不同名稱組織，包括：\nInternational Resort Developments Ltd, International Resort Developments (HK) Ltd., CLC Developments Ltd, CLC Management Services Ltd, First National Trustee Company, Destinations Title Ltd, Club La Costa, Destinations Club, Destinations Asia Pacific Club, RCI, RCI Asia-Pacific Ptc. Ltd.\n及\nWell Coronet Ltd\n，各組織之間的關係及法律地位並不清晰，《住宿規則》更說明受人島（\nIsle of man\n）法律監管。如果被告人不履行或無能力履行責任，訴訟應在那裡展開？用什麼地區法律？告那間公司呢？申索人在追討上肯定會遇上極大困難。申索人所付金額龐大，但相反地得到的保障甚少。\n43.\n本席考慮的第四點因素是申索人未有獲獨立意見。有關合約涉及金額龐大的責任，合約內容及所涉法律複雜，牽涉公司衆多，追究責任困難，申索人在沒有律師或獨立人士意見下被催促決定，必定不能做到理智的決定。\n44.\n本席考慮的第五點因素，亦是最重要一點，是被告人的行為並不公道，其推銷方法對申索人做成不當的影響及壓力。被告人先施以利誘，誘使申索人參加講座，申索人本來只是來領獎，沒有準備買入渡假屋會籍，在毫無心理準備下，被訓練有素的職員先後不斷游說三小時。沒有底薪只有佣金的推銷員為求成交，自然把產品好處說得天花亂墜。被告人更刻意營造成交氣氛，使聽講座的人以為已經有其他人即時參加會籍，降低其介心。推銷員更極力使申索人沒有冷靜考慮的機會，章先生已要求回家考慮，推銷員仍不放棄游說。申索人夫婦要求去洗手間欲以此機會商討，推銷員叫他們留下隨身物品，並陪同他們到洗手間，又在門外等候，明顯地是故意令他們無法單獨商討。本席認為這些高壓的推銷手段，不符商業道德。\n45.\n被告人的推銷手段，正正就是在英國\nDirector General of Fair Trading\n在1990年6月就「時光共享」呈交的報告中所批評的高壓推銷手段。這些高壓手段引起了社會廣泛關注，英國在1992年立下\nTime Share Act\n，更在1997年3月作出\nTime Share Regulations\n修訂。這些明文法律，就是針對這些高壓手段而作出明文監管，違反者可予刑事懲罰。這些規定包括：\n1. 已簽約者有權在14天冷靜期內無條件取消合約，冷靜期更可因合約未列明必須資料而延長至3個月再加10日；\n2. 推銷者必須在合約文件清楚通知消費人有取消合約權利，否則屬刑事罪行；\n3. 嚴禁銷售者在冷靜期完結前向消費人索取或收受預收款項；\n4. 合約文件必須包含一些規定資料，如：合約當事人的法律地位、身份及一般所在地，渡假屋所在地點，有關服務等等。\n46.\n因以上理由，本席裁定申索人與被告人所簽合約是不合情理合約，在本案情況下，整個合約須予撤銷，被告人須歸還申索人已付之35,500元。\n47.\n以上是基於不爭議的事實作出的裁定。即使本席這看法有所偏差，本席仍然會作出同樣判決。\n失實陳述\n48.\n本席已裁定被告人的僱員作出失實陳述，申索人雖然未能證明這是欺詐性的，但被告人未能證明有合理理由相信為事實，申索人相信這些不實陳述而簽約，在本案情況下，本席認為金錢賠償是不切實際的，所以整個合約應予撤銷。\n49.\n最後即使合約不應撤銷，被告人亦沒有理由沒收已付款項兼追餘款。即使合約有效而申索人違約，被告人亦須證明其損失，並且要採取合理行為減少損失，但被告人證明不到有任何損失，亦沒有證明採取行動減少損失。至於已付款項，本席認為申索人已付款項並非誠意金性質的訂金而只是部份付款，在被告人未能證明有任何損失情況下，申索人毋須作出賠償，已付款項必須歸還。\n命令\n50.\n基於上述原因，本席撤銷這個合約。判申索人勝訴，被告人敗訴，被告人須付申索人35,500元連同利息由裁決日起以判定利率計算至清付，並須付申索人每人訟費500元，反申索被撤銷。\n題外意見\n51.\n時光共享概念本身並無不妥，本席亦相信有些已參加者對其會籍十分滿意，問題只出於其推銷方法。歐洲國家自1992年紛紛立法監管這行業。時光共享概念傳入香港幾年來，推銷公司的手法備受爭議。從消費者委員會的統計，有關時光共享合約的投訴在2001年急增一倍多至171宗，2002年至4月為止是65宗；本審裁處在2001年及2002年至今已收入禀有關時光共享合約的案件多達70宗，這行業現在的情況看來已到了值得政府關注的地步，考慮是否需如外國立法監管。本席認為明文立法監管，不獨可保障消費者利益，增加市民對此行業的信心，更可使這行業正面地發展。正如英國當時的\nDirector General of Fair Trading, Sir Gordon Borrie\n在其報 告中第1.11段所說\n“I have concluded that legislation, not just self-regulation, is needed because of the financial importance to buyers, because timeshare is an infrequent and complicated purchase, and because the industry has attracted unethical operators who will be bound by nothing less.”\n。\n（彭中屏）\n小額錢債審裁處\n署理主任審裁官", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2001/SCTC026290_2001.doc", + "file_name": "SCTC026290_2001.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hksct/2015_HKSCT_1/SCTC001582_2015.txt b/zh_cases_hksct/2015_HKSCT_1/SCTC001582_2015.txt new file mode 100644 index 0000000..ae4fbaf --- /dev/null +++ b/zh_cases_hksct/2015_HKSCT_1/SCTC001582_2015.txt @@ -0,0 +1,85 @@ + SCTC001582/2015 + +香港特別行政區 +小額錢債審裁處 +申索2015年第1582號 + + + + +判決書 + +前言 + +1. 在2015年3月2日，本席剔除申索人針對兩名被告人的申索。申索人提出上訴。 + +申索人的申索理由 + +2. 申索人是彩暉花園C座4樓C2室的第一手業主。在2010年3月31日，他將該單位轉售與一位姓林的買家。在物業轉售期間，當時的管理公司港深聯合物業管理有限公司(即本案的第2被告人，下同)告知申索人的代表律師行，表示有關單位沒有按金存於彩暉花園業主立案法團(即本案的第1被告人，下同 )，因此，申索人不能轉移管理費按金1,020元及公用電錶按金250元 ,合共1,270元給新業主。 + +申索人過往的申索案 + +3. 就相同的申索理由，申索人曾經在小額錢債審裁處入稟下述案件： + + 案件號碼 被告人 + + SCTC43027/11 第1被告人 + SCTC22975/12 第1被告人 + SCTC7327/13 恒益物業管理有限公司("恒益")及 + 第1被告人 + SCTC20189/13 第2被告人 + + +SCTC43027/11 + +4. 申索人在2012年5月8日終止該案的申索。 + +SCTC22975/12 + +5. 本席在2012年11月30日撤銷申索人的申索。申索人其後申請覆核，本席在2013年1月18日撤銷申索人的覆核申請。 + +SCTC7327/13 + +6. 周紹和主任審裁官分別在2013年4月18日撤銷申索人針對第1被告人的申索及在2013年6月3日撤銷申索人針對恒益的申索。 + +SCTC20189/13 + +7. 李家樂暫委審裁官(當時官階)在2014年3月25日撤銷申索人的申索。申索人其後向原訟庭申請上訴許可，原訟庭法官周家明在2014年11月13日駁回申索人的上訴許可申請。 + +討論 + +8. 由此可見，申索人曾經就相同的訴訟因由分別向兩名被告提出訴訟。 +9. 本席在SCTC22975/12案中撤銷申索人針對第1被告人的申索。申索人在他提出的覆核申請被拒絕後，沒有提出上訴，反而在1個多月後的2013年2月28日入稟SCTC7327/13再向第1被告人提出訴訟。在該案中，針對第1被告人的訴訟自然被周紹和主任審裁官撤銷。 + +10. 另一方面，申索人在SCTC20189/13向第2被告人提出的申索，經審訊後，被李家樂暫委審裁官(當時官階)撤銷。其後他提出的上訴許可申請，亦被原訟庭法官周家明駁回。 + +11. 原訟庭法官楊振權(當時官階)在霍兆榮及香港特別行政區, HCA21094/98，3/6/1999(未經法律彙編報導)第6頁中指出： + +"根據「已經裁判之事，不再受理」的原則(Res Judicata)，任何案件經過法庭最終裁決後，雙方皆不能再次就相同事件再次興訟。否則構成濫用法庭程序而重新提出的訴訟需被剔除。" + +楊法官基於這原則剔除原告人的申索。 + +12. 原訟庭法官朱芬齡(當時官階)在陳世鳳與謝偉志/立德製衣廠,HCA1660/2002, 8/7/2005(未經法律彙編報導)亦引用這原則駁回原告人針對聆案官的判決的上訴。 + +13. 在本案中，申索人已在本案之前分別向第一及第二被告人就相同的訴訟因由提出訴訟。該等訴訟均曾經被審裁處撤銷。在此情況下，申索人不能就相同的訴訟因由再次興訟。 + +14. 小額錢債審裁處條例第25條有如下規定： + +"審裁處可隨時駁回其認為瑣屑無聊或無理纏擾的申索，並施加其認為適當的訟費繳付條款。" + +15. 申索人就相同的訴訟因由多次向兩名被告人提出訴訟，明顯屬於對兩名被告人的無理纏擾。 + +結論及命令 + +16. 基於上述理由，本席剔除申索人對兩名被告人的申索。 + + + + +麥國昌 +小額錢債審裁 + 審裁官 + + +出席人士：　莫如柏，申索人 +　　　　　 楊佩雄，第一及第二被告人代表 \ No newline at end of file diff --git a/zh_cases_hksct/2015_HKSCT_1/case.json b/zh_cases_hksct/2015_HKSCT_1/case.json new file mode 100644 index 0000000..0824aef --- /dev/null +++ b/zh_cases_hksct/2015_HKSCT_1/case.json @@ -0,0 +1,26 @@ +{ + "Date": "16 Apr, 2015", + "Action No.": "SCTC1582/2015", + "Neutral Cit.": "[2015] HKSCT 1", + "case_title": "莫如柏 對 彩暉花園業主立案法團及另一人", + "page_title": "莫如柏 對 彩暉花園業主立案法團及另一人 | [2015] HKSCT 1 | HKLII", + "case_history": [ + { + "name": "SCTC1582/2015", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2015/1582" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hksct/2015/1", + "neutral_cit": "[2015] HKSCT 1", + "court_code": "HKSCT", + "content": "SCTC1582/2015 莫如柏 對 彩暉花園業主立案法團及另一人\nSCTC001582/2015\n香港特別行政區\n小額錢債審裁處\n申索2015年第1582號\n________________________\n莫如柏\n申索人\n訴\n彩暉花園業主立案法團\n第一被告人\n港深聯合物業管理有限公司\n第二被告人\n________________________\n主審審裁官 ： 麥國昌審裁官\n審訊及裁決日期 ： 2015年 3 月2日\n判決理由書日期 ： 2015年4月16日\n判決書\n前言\n1.\n在2015年3月2日，本席剔除申索人針對兩名被告人的申索。申索人提出上訴。\n申索人的申索理由\n2.\n申索人是彩暉花園C座4樓C2室的第一手業主。在2010年3月31日，他將該單位轉售與一位姓林的買家。在物業轉售期間，當時的管理公司港深聯合物業管理有限公司(即本案的第2被告人，下同)告知申索人的代表律師行，表示有關單位沒有按金存於彩暉花園業主立案法團(即本案的第1被告人，下同 )，因此，申索人不能轉移管理費按金1,020元及公用電錶按金250元 ,合共1,270元給新業主。\n申索人過往的申索案\n3.\n就相同的申索理由，申索人曾經在小額錢債審裁處入稟下述案件：\n案件號碼\n被告人\nSCTC43027/11\n第1被告人\nSCTC22975/12\n第1被告人\nSCTC7327/13\n恒益物業管理有限公司(\"恒益\")及\n第1被告人\nSCTC20189/13\n第2被告人\nSCTC43027/11\n4.\n申索人在2012年5月8日終止該案的申索。\nSCTC22975/12\n5.\n本席在2012年11月30日撤銷申索人的申索。申索人其後申請覆核，本席在2013年1月18日撤銷申索人的覆核申請。\nSCTC7327/13\n6.\n周紹和主任審裁官分別在2013年4月18日撤銷申索人針對第1被告人的申索及在2013年6月3日撤銷申索人針對恒益的申索。\nSCTC20189/13\n7.\n李家樂暫委審裁官(當時官階)在2014年3月25日撤銷申索人的申索。申索人其後向原訟庭申請上訴許可，原訟庭法官周家明在2014年11月13日駁回申索人的上訴許可申請。\n討論\n8.\n由此可見，申索人曾經就相同的訴訟因由分別向兩名被告提出訴訟。\n9.\n本席在SCTC22975/12案中撤銷申索人針對第1被告人的申索。申索人在他提出的覆核申請被拒絕後，沒有提出上訴，反而在1個多月後的2013年2月28日入稟SCTC7327/13再向第1被告人提出訴訟。在該案中，針對第1被告人的訴訟自然被周紹和主任審裁官撤銷。\n10.\n另一方面，申索人在SCTC20189/13向第2被告人提出的申索，經審訊後，被李家樂暫委審裁官(當時官階)撤銷。其後他提出的上訴許可申請，亦被原訟庭法官周家明駁回。\n11.\n原訟庭法官楊振權(當時官階)在\n霍兆榮及香港特別行政區\n, HCA21094/98，3/6/1999(未經法律彙編報導)第6頁中指出：\n\"根據「已經裁判之事，不再受理」的原則(Res Judicata)，任何案件經過法庭最終裁決後，雙方皆不能再次就相同事件再次興訟。否則構成濫用法庭程序而重新提出的訴訟需被剔除。\"\n楊法官基於這原則剔除原告人的申索。\n12.\n原訟庭法官朱芬齡(當時官階)在\n陳世鳳與謝偉志/立德製衣廠\n,HCA1660/2002, 8/7/2005(未經法律彙編報導)亦引用這原則駁回原告人針對聆案官的判決的上訴。\n13.\n在本案中，申索人已在本案之前分別向第一及第二被告人就相同的訴訟因由提出訴訟。該等訴訟均曾經被審裁處撤銷。在此情況下，申索人不能就相同的訴訟因由再次興訟。\n14.\n小額錢債審裁處條例第25條有如下規定：\n\"審裁處可隨時駁回其認為瑣屑無聊或無理纏擾的申索，並施加其認為適當的訟費繳付條款。\"\n15.\n申索人就相同的訴訟因由多次向兩名被告人提出訴訟，明顯屬於對兩名被告人的無理纏擾。\n結論及命令\n16.\n基於上述理由，本席剔除申索人對兩名被告人的申索。\n麥國昌\n小額錢債審裁\n審裁官\n出席人士： 莫如柏，申索人\n楊佩雄，第一及第二被告人代表", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2015/SCTC001582_2015.doc", + "file_name": "SCTC001582_2015.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hksct/2015_HKSCT_2/SCTC024251_2012_abp_fallback.txt b/zh_cases_hksct/2015_HKSCT_2/SCTC024251_2012_abp_fallback.txt new file mode 100644 index 0000000..b7c994e --- /dev/null +++ b/zh_cases_hksct/2015_HKSCT_2/SCTC024251_2012_abp_fallback.txt @@ -0,0 +1,8 @@ + SCTC 24251/2012 香港特別行政區 小額錢債審裁處 申索2012年第24251號 鄭賜龍 申索人  訴   醫院管理局 被告人   主審審裁官：麥國昌審裁官 聆訊及裁決日期：2013年11月6日 判決理由書日期：2015年4月22日 判決理由書 前言 1. 申索人於2012年7月4日入稟本案，指稱其父親鄭慈游於1996年3月13日至1996年3月22日期間博愛醫院住院期間疏忽，燃點蚊香，導致他於1996年3月22日死亡。 2. 申索人於2012年9月12日獲發鄭先生之遺產管理書，成為鄭先生的遺產管理人。 + 被告人的申請 3. 被告人以申索人之申索已超出訴訟時限，要求法庭撤銷申索。 討論 4. 時效條例第28（3）條規定，根據致命意外條例提出的訴訟須於死者（a）去世日期；或（b）該訴訟為其利益而提出的人的知悉日期起三年內提出，而兩日期中以較後者為準。 5. 在本案中，申索人的訴訟時限為1999年3月21日。換言之，申索人於上述時限屆滿後超過13年才入稟本案。 6. 時效條例第28（1）條規定，該條效力，須受第30條所規限。 7. 時效條例第30（1）條有如下規定： “(1) 如法院經顧及以下事項後，覺得容許某訴訟進行是公平的— (a) 第27或28條的條文損害原告人或由原告人代表的人的程度；及 (b) 法院根據本款所作的決定會損害被告人或由被告人代表的人的程度， 則法院可指示該條文不適用於該訴訟或任何與該訴訟有關 +的指明訴訟因由。” 8. 在行使上述權力時，法院須考慮個案的所有情況，尤其是第30（3）條所列出各項情況，包括： （a）原告人延誤的時間長短及延誤理由 9. 一如上述，申索人延誤超過十三年才入稟本案。申索人於其父親去世同年分別向博愛醫院、醫院管理局及申訴專員公署投訴，可見申索人非常了解其權利。 10. 申索人稱在2011年6月見到陸啟康法官在區域法院案件DCCJ 2011年273號胡偉欣 訴 馬鴻榮案有關燃點香燭造成滋擾判例，才獲得支持其申索法律理據，故入稟本案。 11. 本席不認為此點可成為申索人延誤入稟理由。陸法官判例與申索人申索訴訟因由完全不同，不能說有任何支持因素。申索人入稟提出申索，應於其訴訟因由，即指博愛醫院在院內燃點蚊香而犯有疏忽，導致其父親死亡，而於其父親去世三年內提出。申索人顯然沒有在該三年時間之內提出任何訴訟。 （b）經顧及有關延誤後，原告人或被告人所提出或相當可能會提出的證據，與訴訟時限內提出相比，會或相當可能會具有較低的說服力的程度 12. 被告人指出，博愛醫院於1999年開始重建，當時鄭先生入住 +的C2病房已不存在。由於申索人沒有明確指出病房燃點蚊香時間，被告人未能確定有關醫護人員名單。 13. 在4名曾向申訴專員公署提交陳述書醫護人員之中，只剩下一位吳寶芝女士在職，而吳女士亦都沒有印象曾就蚊香事宜提供過口供。 14. 醫院方面已經找不到該4名醫護人員口供或文件。 15. 基於上述原因，被告人認為申索人不合理及長時間延誤對被告人可提出或者相當可能會提出的證據，受到十分嚴重影響。 16. 顯然，被告人所面對的處境完全出於申索人沒有在訴訟時限內提起訴訟所造成。這情況嚴重影響被告人蒐集證據的能力。 （c）被告人在訴訟因由產生後的行為，包括原告人為確定與其針對被告人的訴訟因由有關或可能有關事實，而合理地要求有關資料或要求查看時，被告人就該項要求作出回應程度。 17. 被告人指出醫院管理局公眾投訴委員會在收到申索人投訴之後，分別於1996年12月11日及1997年5月5日以書面回覆申索人。 （d）在訴訟因由產生日期後，原告人無行為能力的持續期 18. 本席面前並沒有證據顯示申索人曾缺乏行為能力。 + （e）原告人知悉被告人的作為或不作為（有關傷害所歸因者）在當時可能足以引致損害賠償訴訟後，迅速及合理地行事的程度 19. 申索人在1996年已就其父親去世的事向博愛醫院、醫院管理局及申訴專員公署提出投訴。 20. 如果申索人要索償的話，申索人應該在作出投訴的同時，提出民事訴訟。申索人在訴訟時效屆滿後超過十三年才提出民事訴訟，顯然並沒有迅速及合理地行事。 （f）原告人為取得醫學、法律或其他專家意見而採取的步驟（如有的話），以及取得的該等意見的性質 21. 從申索人所存檔的一大叠文件之中，只可以見到申索人搜集了消費者委員會對蚊香測試報告及陸啟康法官在胡偉欣 訴 馬鴻榮一案的案例。上述資料絕不能視之為醫學或者法律上的專家意見。 22. 本席考慮過本案所有情況與及上述因素之後，認為第28條的條文規定並沒有對申索人造成損害，他有充份時間及機會在訴訟時限內提出訴訟，只是他沒有把握，而把時間用在投訴方面。若果本席行使第30（1）條的權力凌駕訴訟時限，則對被告人造成嚴重舉證上的困難，對被告人造成不公平情況。 +結論及命令 23. 基於上述理由，本席決定不行使第30（1）條的權力。 24. 由於申索人的訴訟已經超越訴訟時限，本席剔除申索人的申索案。 訟費 25. 被告人不申請訟費，本席因此不作訟費命令。 麥國昌 審裁官 小額錢債審裁處 出席人士：　鄭賜龍，申索人 　　　　　　何劍琴，被告人代表 + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/zh_cases_hksct/2015_HKSCT_2/case.json b/zh_cases_hksct/2015_HKSCT_2/case.json new file mode 100644 index 0000000..f553bb2 --- /dev/null +++ b/zh_cases_hksct/2015_HKSCT_2/case.json @@ -0,0 +1,26 @@ +{ + "Date": "22 Apr, 2015", + "Action No.": "SCTC24251/2012", + "Neutral Cit.": "[2015] HKSCT 2", + "case_title": "鄭賜龍 對 醫院管理局", + "page_title": "鄭賜龍 對 醫院管理局 | [2015] HKSCT 2 | HKLII", + "case_history": [ + { + "name": "SCTC24251/2012", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2012/24251" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hksct/2015/2", + "neutral_cit": "[2015] HKSCT 2", + "court_code": "HKSCT", + "content": "SCTC24251/2012 鄭賜龍 對 醫院管理局\nSCTC 24251/2012\n香港特別行政區\n小額錢債審裁處\n申索2012年第24251號\n________________________\n鄭賜龍\n申索人\n訴\n醫院管理局\n被告人\n________________________\n主審審裁官：\n麥國昌審裁官\n聆訊及裁決日期：\n2013年11月6日\n判決理由書日期：\n2015年4月22日\n判決理由書\n前言\n1.\n申索人於2012年7月4日入稟本案，指稱其父親鄭慈游於1996年3月13日至1996年3月22日期間博愛醫院住院期間疏忽，燃點蚊香，導致他於1996年3月22日死亡。\n2.\n申索人於2012年9月12日獲發鄭先生之遺產管理書，成為鄭先生的遺產管理人。\n被告人的申請\n3.\n被告人以申索人之申索已超出訴訟時限，要求法庭撤銷申索。\n討論\n4.\n時效條例第28（3）條規定，根據致命意外條例提出的訴訟須於死者（a）去世日期；或（b）該訴訟為其利益而提出的人的知悉日期起三年內提出，而兩日期中以較後者為準。\n5.\n在本案中，申索人的訴訟時限為1999年3月21日。換言之，申索人於上述時限屆滿後超過13年才入稟本案。\n6.\n時效條例第28（1）條規定，該條效力，須受第30條所規限。\n7.\n時效條例第30（1）條有如下規定：\n“(1) 如法院經顧及以下事項後，覺得容許某訴訟進行是公平的—\n(a) 第27或28條的條文損害原告人或由原告人代表的人的程度；及\n(b) 法院根據本款所作的決定會損害被告人或由被告人代表的人的程度，\n則法院可指示該條文不適用於該訴訟或任何與該訴訟有關的指明訴訟因由。”\n8.\n在行使上述權力時，法院須考慮個案的所有情況，尤其是第30（3）條所列出各項情況，包括：\n（a）原告人延誤的時間長短及延誤理由\n9.\n一如上述，申索人延誤超過十三年才入稟本案。申索人於其父親去世同年分別向博愛醫院、醫院管理局及申訴專員公署投訴，可見申索人非常了解其權利。\n10.\n申索人稱在2011年6月見到陸啟康法官在區域法院案件DCCJ 2011年273號\n胡偉欣 訴 馬鴻榮\n案有關燃點香燭造成滋擾判例，才獲得支持其申索法律理據，故入稟本案。\n11.\n本席不認為此點可成為申索人延誤入稟理由。陸法官判例與申索人申索訴訟因由完全不同，不能說有任何支持因素。申索人入稟提出申索，應於其訴訟因由，即指博愛醫院在院內燃點蚊香而犯有疏忽，導致其父親死亡，而於其父親去世三年內提出。申索人顯然沒有在該三年時間之內提出任何訴訟。\n（b）經顧及有關延誤後，原告人或被告人所提出或相當可能會提出的證據，與訴訟時限內提出相比，會或相當可能會具有較低的說服力的程度\n12.\n被告人指出，博愛醫院於1999年開始重建，當時鄭先生入住的C2病房已不存在。由於申索人沒有明確指出病房燃點蚊香時間，被告人未能確定有關醫護人員名單。\n13.\n在4名曾向申訴專員公署提交陳述書醫護人員之中，只剩下一位吳寶芝女士在職，而吳女士亦都沒有印象曾就蚊香事宜提供過口供。\n14.\n醫院方面已經找不到該4名醫護人員口供或文件。\n15.\n基於上述原因，被告人認為申索人不合理及長時間延誤對被告人可提出或者相當可能會提出的證據，受到十分嚴重影響。\n16.\n顯然，被告人所面對的處境完全出於申索人沒有在訴訟時限內提起訴訟所造成。這情況嚴重影響被告人蒐集證據的能力。\n（c）被告人在訴訟因由產生後的行為，包括原告人為確定與其針對被告人的訴訟因由有關或可能有關事實，而合理地要求有關資料或要求查看時\n，\n被告人就該項要求作出回應程度。\n17.\n被告人指出醫院管理局公眾投訴委員會在收到申索人投訴之後，分別於1996年12月11日及1997年5月5日以書面回覆申索人。\n（d）在訴訟因由產生日期後，原告人無行為能力的持續期\n18.\n本席面前並沒有證據顯示申索人曾缺乏行為能力。\n（e）原告人知悉被告人的作為或不作為（有關傷害所歸因者）在當時可能足以引致損害賠償訴訟後，迅速及合理地行事的程度\n19.\n申索人在1996年已就其父親去世的事向博愛醫院、醫院管理局及申訴專員公署提出投訴。\n20.\n如果申索人要索償的話，申索人應該在作出投訴的同時，提出民事訴訟。申索人在訴訟時效屆滿後超過十三年才提出民事訴訟，顯然並沒有迅速及合理地行事。\n（f）原告人為取得醫學、法律或其他專家意見而採取的步驟（如有的話），以及取得的該等意見的性質\n21.\n從申索人所存檔的一大叠文件之中，只可以見到申索人搜集了消費者委員會對蚊香測試報告及陸啟康法官在\n胡偉欣 訴 馬鴻榮\n一案的案例。上述資料絕不能視之為醫學或者法律上的專家意見。\n22.\n本席考慮過本案所有情況與及上述因素之後，認為第28條的條文規定並沒有對申索人造成損害，他有充份時間及機會在訴訟時限內提出訴訟，只是他沒有把握，而把時間用在投訴方面。若果本席行使第30（1）條的權力凌駕訴訟時限，則對被告人造成嚴重舉證上的困難，對被告人造成不公平情況。\n結論及命令\n23.\n基於上述理由，本席決定不行使第30（1）條的權力。\n24.\n由於申索人的訴訟已經超越訴訟時限，本席剔除申索人的申索案。\n訟費\n25.\n被告人不申請訟費，本席因此不作訟費命令。\n麥國昌\n審裁官\n小額錢債審裁處\n出席人士：　 鄭賜龍，申索人\n何劍琴，被告人代表", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2012/SCTC024251_2012.doc", + "file_name": "SCTC024251_2012.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hksct/2022_HKSCT_2/SCTC012527_2020_abp_fallback.txt b/zh_cases_hksct/2022_HKSCT_2/SCTC012527_2020_abp_fallback.txt new file mode 100644 index 0000000..a0eddc8 --- /dev/null +++ b/zh_cases_hksct/2022_HKSCT_2/SCTC012527_2020_abp_fallback.txt @@ -0,0 +1,10 @@ +SCTC 12527-30, 12532, 20434-5, 37602/2020 & 19149/2021 [2022] HKSCT 2 香港特別行政區 小額錢債審裁處 申索2020年第12527號 熊達富 申索人  訴   律政司司長 被告人   主審審裁官：林希維審裁官 日期： 2022年3月29日 時間： 下午3時07分 地點： 西九龍法院大樓 出席人士： 陳仲賢，申索人代表 黃汝凝，被告人代表 申索2020年第12528號 趙金興 申索人  訴   律政司司長 被告人   出席人士： 陳仲賢，申索人代表 黃汝凝，被告人代表 申索2020年第12529號 劉嘉曦 申索人  訴   律政司司長 被告人   出席人士： 陳仲賢，申索人代表 黃汝凝，被告人代表 + 申索2020年第12530號 周雄光 申索人  訴   律政司司長 被告人   出席人士： 吳衛東，申索人代表 黃汝凝，被告人代表 申索2020年第12532號 陳大發 申索人  訴   律政司司長 被告人   出席人士： 吳衛東，申索人代表 黃汝凝，被告人代表 申索2020年第20434號 吳隨有 申索人  訴   律政司司長 被告人   出席人士： 吳衛東，申索人代表 黃汝凝，被告人代表 申索2020年第20435號 阮少碧 申索人  訴   律政司司長 被告人   +出席人士： 陳仲賢，申索人代表 黃汝凝，被告人代表 申索2020年第37602號 陳志榮 申索人  訴   律政司司長 被告人   出席人士： 陳志榮，申索人 黃汝凝，被告人代表 申索2021年第19149號 陳志堅 申索人  訴   律政司司長 被告人   出席人士： 陳志榮，申索人代表 黃汝凝，被告人代表 判決理由書 本案源自一次警方同康樂文化事務署（以下簡稱為「康文署」）喺通州街公園（以下簡稱為「公園」）裡面採取嘅聯合行動。行動中，署方將露宿喺公園裡面各申索人嘅私人財物移走，並且喺三日之後將無人認領嘅部份棄置。 各申索人而家向署方提出申索。 申索方案情 2019年12月21號下晝約三點半，警方同康文署人員到達公園，佢哋要求各無家者包括當時在場嘅申索人（即係熊達富、劉嘉曦、周雄光、陳大發同埋陳志榮）喺三分鐘內收拾個人物品。三分鐘之後，署方人員將無人收拾嘅物品抌咗落大型手推垃圾車裡面，並將佢哋移到公園壁球中心後門，平時用作擺放園內垃圾嘅地方。部份申索人曾經親自或者透過其他無家者嘅協助，嘗試搵番個人財物，但係佢哋未能夠全數搵番，呢啲物品最後三天之後被棄掉。 各申索人指，康文署過往亦都會進行類似嘅清場行動，但係佢哋必會事前作 +出通知或者張貼告示，好讓無家者配合。然而，今次署方卻喺冇事前通知下，只係給予佢哋極短時間收拾就採取行動，而且部份無家者事發時根本不在現場，未能獲悉需要收拾，就被署方將佢哋啲個人物品視為無人認領而去移走咗。 申索方認為署方嘅做法同過往嘅唔同，但係事前又冇警告無家者將會改變清場手法，故此對署方作出多項嘅投訴。然而，申索方結案嘅時候同意，法庭只係需要就「非自願托管者」（即係Involuntary bailee）嘅法律原則作出考慮。 被告方案情 被告方否認只係給予無家者三分鐘執拾個人物品就進行清場。 負責今次行動嘅警方指揮官吳彥柏督察供稱，佢當日喺下晝3點40分開始喺公園嘅八角亭勸喻無家者收拾個人物品，十五分鐘之後（即係下晝3點55分），佢到達公園嘅木亭（即係近住南昌邨昌頌樓）作出相同嘅勸喻。下晝4點05分，佢返番去八角亭，康文署人員先至開始清場。故此，無家者最少有二十五分鐘時間收拾個人物品。 康文署嘅公園經理王先利先生亦都指，當佢哋移除無人認領物品嘅時候，佢哋曾要求在場嘅無家者通知其他不在場人士，物品將會被移送到壁球中心後門，佢哋可以去嗰度進行認領。王經理續指，佢哋一貫嘅做法係將無人認領嘅物品保留三日，唔會即時棄掉，今次亦都唔例外。 一般法律原則 喺民事訴訟中，提出主張嘅一方有責任攞出證據，證明佢嘅主張；亦即係話誰主張，誰舉證（參見Phipson on Evidence第19版，第6章第6段）。 喺考慮證人是否誠實同埋可信方面，高等法院原訟法庭暫委法官馮庭碩資深大律師喺Hui Cheung Fai v Daiwa Development Ltd HCA 1734/2009第77至81段嗰度係列舉咗相關嘅原則： （1）一般嚟講，同關鍵事件同時期存在嘅文件對評估證人嘅可信性至關重要； （2）證人嘅說法嘅固有可能性，或者係咪符合明顯嘅邏輯，亦都係重要嘅指標； （3）法庭亦可考慮證人嘅口供係咪前後一致，或者係咪同不能爭議嘅證據相符； （4）法庭應謹記證供嘅真實性不能單憑證人嘅外表或者作供時嘅神態決定； （5）總括而言，法庭可考慮客觀證據、證人嘅動機，同埋整體證據嘅可能性。 侵佔財物（Conversion）與非自願托管者（Involuntary bailee）嘅法律原則 高等法院原訟法庭暫委法官吳美玲（當時官階）喺Desir Anthony C v Knight Frank （Services）Ltd & Others HCSA 36/2013一案中，闡述咗侵佔財物同非自願托管者嘅法律原則。佢喺判詞第82至到83段首先提到以下： +“Conversion occurs when property is wrongfully destroyed. A defendant deals with others’ goods at his peril: unless he can invoke some specific defence he is potentially liable, however reasonable or well-intentioned his action. But if an involuntary bailee performs in good faith an act which, taken in the abstract, would amount to a conversion, he is liable only if the performance of that act was accompanied by a lack of reasonable care. If an involuntary bailee conscientiously performs acts with the object of returning the goods to their owner, such acts would be regarded as reasonable acts. But what is reasonable will depend on all the circumstances, including the nature of the goods. The burden falls on the involuntary bailee to prove that he has exercised the required standard of care. As regards conversion by destruction, if A is in possession of goods belonging to B and A destroys those goods without B’s permission, A is ordinarily liable to B for conversion. There is at common law no general right to dispose of goods which a bailor has refused, or is unable, to collect. Thus, ordinarily, an involuntary bailee is not entitled to destroy goods just because they have become a nuisance to the bailee...” 吳法官其後喺判詞嘅第97段討論非自願托管者嘅責任時亦都指出： “An involuntary bailee’s duty is to act prudently and he can only dispose of the goods if it is in the interests of the owner to do so, and “there is little prospect of its acceptance in situations where the disposal …… is for the benefit of the bailee alone.”” 關於責任問題嘅討論 與訟雙方冇爭議，署方確曾喺行動後三天將無人認領嘅物品棄掉，另一方面，案中亦都冇任何證據顯示署方嘅行動懷有惡意。故此，根據上文提到嘅法律原則，法庭喺本案中需要考慮嘅係署方作為本著真誠行事（good faith）嘅非自願托管者，喺處理無家者嘅物品時係咪已經行使合理程度嘅謹慎（reasonable +care）。 署方指出，佢哋冇將物品即時棄掉，就係希望畀物主機會領回個人物品（見被告方結案陳詞嘅第10段），而事實上，部份申索人亦都成功搵到自己嘅私人財物，只係佢哋認為呢啲財物已經被整污糟，所以放棄攞番（見陳詞嘅第11段），亦有啲申索人只係草草咁樣搵咗一陣就放棄繼續搵（見陳詞嘅第18段）。 此外，署方認為本案嘅情況同剛才提到Desir Anthony C案有別，本案中，各申索人冇向康文署職員表明佢哋物主嘅身份，亦都冇主動同職員商討攞番物品嘅方法，所以署方嘅主張係各申索人屬於自願摒棄個人財物（見陳詞嘅第19段）。 就通知物主方面，署方指佢哋已經透過在場嘅無家者通知不在場者物品嘅去向，呢個係佢哋一貫嘅做法，而無家者亦都清楚呢一項安排（見佢哋嘅陳詞第21段）。而且，無家者亦都冇喺個人財物上寫上姓名（見陳詞23段），署方又冇責任主動尋找物主（見Desir Anthony C案第92段），故此，署方認為佢哋喺事件上已經行使咗合理程度嘅謹慎。 本席已經細心考慮咗署方嘅陳詞，但係認為署方嘅做法並未達到法律嘅要求。 首先，署方將物品三日後被棄置歸咎於無家者冇認真尋找，係佢哋自願放棄財物，本席認為呢一個說法並唔係建基於正確嘅事實基礎。 根據庭上嘅證供，署方人員將無人收拾嘅物品放滿咗十二架垃圾手推車，每輛手推車高於一米（見文件冊D16相片），而公園經理王先生亦都承認園內約有七十位無家者露宿，但係清場嘅時候卻只係有二十多人在場。換句話說，為數不少嘅無家者需要喺眾多嘅物品中尋找屬於自己嘅財物，然而呢啲財物並唔係有系統咁樣被放喺地上，供人認領，而係放喺平常用作運送垃圾嘅手推車裡面。更不幸嘅係，部份無家者份屬老弱傷殘，要求佢哋伸手進入一米深嘅手推車內尋找個人物品，未免太過強人所難。因此，本席拒絕接納署方指稱各申索人係自願放棄取回財物嘅說法。 署方陳詞嘅時候又指，各申索人冇向康文署表明佢哋物主嘅身份，亦都冇表明期望係攞番啲物品。本席同樣拒絕接納呢一個說法。從申索方提供嘅文件可見（見文件冊C3），申索方代表吳先生喺2019年12月23日凌晨4點16分（即係清場之後大約一日半）曾經向警方同埋康文署發出電郵，詢問點樣可以攞番被清理嘅個人財物，電郵嘅內容毫不含糊咁樣提及無家者或者係露宿者係被清理物品嘅擁有人，同埋佢哋希望能夠取回物品嘅意願，呢啲物品當時仍未被棄掉，本席認為署方理應喺呢一刻已經知道無家者並未放棄佢哋嘅財物，相反地，佢哋期望署方能夠安排佢哋係攞番啲財物。 署方陳詞嘅另一個重點係，佢哋認為佢哋透過在場嘅無家者通知不在場者攞番啲物品，已足以履行法律訂下嘅謹慎責任。本席認為，署方冇好似以往咁樣張貼告示，只係單單依賴在場者進行通報，喺冇證據顯示各無家者互相認識嘅情況下，呢一個做法難以確保不在場者必然知道物品何去何從。然而，本席更加關注嘅係，物品被 +清理嘅時候，已經被署方係掉咗入去垃圾手推車裡面，各人嘅物品必定已經係亂作一團，又同其他無家者嘅物品混在一起，所以就算署方已經通知物主擺放物品嘅位置，無家者亦都難以搵番自己嘅財物。故此，本席認為署方未能喺知會無家者認領失物嘅議題上，稱得上負起咗謹慎責任。 最後，署方要求法庭考慮無家者冇喺個人物品上寫上姓名，而署方亦都冇尋找物主嘅責任，所以佢哋喺三天後將物品棄掉，實屬合理嘅做法。 本席認為，署方既然選擇喺清場嘅時候移走無家者嘅物品，佢哋就要負上非自願托管者嘅責任，呢個責任除咗要求佢哋真誠行事，仲要求佢哋對有關物品作出合理嘅照顧［見Chan Cho Fai v Lam Kit Heung [2017] 4 HKLRD 794（見中文附註headnote）］。本席認為，以本案移走物品嘅數量而計，署方有責任就物品進行簡單嘅記錄或者拍照，咁樣先至算得上係行使咗合理嘅謹慎或者對物品作出了合理嘅照顧。 本席提出上述嘅主張時，謹記喺Desir Anthony C案中，吳法官表明托管者冇主動退回物品畀物主嘅責任，然而，本案所牽涉嘅物品眾多，載滿咗十二輛手推車，但係署方卻冇將物品分類或者拍照畀無家者得知佢哋嘅個人物品被放咗喺邊度，或者係喺邊一架嘅手推車內。本席認為呢一個做法並未達到合理謹慎嘅程度，亦都唔能夠稱得上係對物品作出咗合理嘅照顧。 本席重申，法庭並唔係要求署方需要主動咁樣將移走嘅物品退回畀無家者，但係佢哋至少都需要將物品合理地保存或者係作一啲記錄，好讓當無家者嘗試尋找自己嘅財物時，唔使喺十二架一米高嘅垃圾手推車裡面毫無頭緒咁樣喺度亂搵。 本席認為，署方將無家者嘅私人財物用垃圾手推車運走，又喺冇緊急情況或衛生問題下（呢一個係冇證據顯示被棄掉嘅物品有呢啲情況，而公園經理王先生供稱保留無人認領物品三日係署方一貫嘅做法）而將物品三天後棄掉，而期間無家者亦都曾經透過社工向署方表明希望攞番啲物品，呢啲都顯示署方行事上有欠合理嘅謹慎。 綜合以上分析，本席裁定署方未能喺相對可能性下證明佢哋已經負上非自願托管者應有嘅責任。 申索人嘅損失 本審訊嘅申索人喺佢哋嘅證人供詞中，都指自己係露宿於公園嘅無家者，同埋喺今次嘅行動中被署方丟棄咗個人財物，蒙受損失。就此，本席信納各人喺案中嘅身份，亦都裁定佢哋因為財物被棄掉而遭受金錢上嘅損失。 法庭喺度記錄在案，除咗熊達富同埋陳志堅外，其他七名嘅申索人都有係出庭作供。熊達富當時喺醫院留醫，陳志堅當時係被還押中。 然而，本席認為各申索人未能提供足夠證據證明呢一啲財物包括咗啲乜嘢嘢，同埋價值係幾多。佢哋喺各自嘅證人供詞中，只係以列表嘅方式列出被棄置物品嘅種類、數量同埋金額，但係佢哋未有交出任何相片或者單據作為佐證。 此外，就個別申索人嘅證供而言，佢哋嘅說法亦都曾出現前後矛盾或者不合 +理嘅地方。舉例說，劉嘉曦（即係SCTC 12529/20案中嘅申索人），喺佢嘅證人供詞中，指自己因為署方嘅行動唔見咗3,000鈫，呢3,000鈫係由六張500鈫組成，但係盤問之下又話呢3,000鈫其實係由三張1,000鈫組成。另一位申索人周雄光（SCTC 12530/20嘅申索人）則喺佢嘅證人供詞表示，佢唔見咗一張床褥，但係喺盤問時又話床褥其實已經喺壁球中心嘅後門搵番。 因此，本席喺相對可能性嘅舉證標準下，只能夠接納各申索人嘅寢具（即係床墊、睡袋、摺床、枕頭或者被等等）喺行動中被棄掉，其他嘅物品基於缺乏單據同埋客觀證明，本席裁定各申索人未能成功舉證。 就寢具嘅價值而言，各申索人未有向法庭提供任何單據，本席喺缺乏客觀證據下，拒絕接納各申索人喺佢哋供詞中指稱嘅價值。然而，本席認為各申索人（包括未有出庭作供嘅熊達富同埋陳志堅）理應係得到象徵式嘅賠償（nominal damages）100鈫，作為寢具被棄掉嘅損失（參見McGregor on Damages第21版2021年，第12章第4段）。 訟費 若果法庭喺案件中只係命令被告方作出象徵式賠償，喺決定訟費責任嘅時候，法庭就需要去考慮究竟案中邊個先至係真正嘅勝訴者呢（the real winner of the case）（參見Tsui Koon Wah v Ip Mei Ho trading as Michelle Ip & Co Solicitors HCSA 10/2021 第102段）。如果法庭認為由於被告方毋須作出全額賠償，所以收到象徵式賠償嘅申索方事實上並唔係案件嘅真正勝訴者，咁樣法庭就有權命令申索方係支付番對方嘅訟費（見Tsui Koon Wah案第107段）。 本席認為儘管各申索人喺案中只係得到象徵式賠償，佢哋喺責任問題上顯然係勝出者。本席明白被告方唔會單單因為提出不成功嘅抗辯，就會被視為真正嘅敗訴者（參見In re Elgindata Ltd （No 2） [1992] 1 WLR 1207第1214頁，同埋Tsui Koon Wah案第98同109段），但係喺今次嘅審訊中大部份嘅時間都係用咗喺責任問題嘅爭議上。換句話說，處理責任問題確實係延長咗審訊嘅時間。 故此，本席認為今次案件中恰當嘅訟費命令應該係與訟各方各自負責自己嘅訟費。 總結 基於以上所述，本席裁定各申索人勝訴，被告方須支付每名申索人款項100鈫，同埋上述判決款項嘅判決後利息，以判定利率計算，由裁斷日起計至款項付清時止。 此外，本席不作任何訟費命令。 + +--- FALLBACK: 此文件由 ABP API 提取文本生成 --- diff --git a/zh_cases_hksct/2022_HKSCT_2/case.json b/zh_cases_hksct/2022_HKSCT_2/case.json new file mode 100644 index 0000000..1b9aece --- /dev/null +++ b/zh_cases_hksct/2022_HKSCT_2/case.json @@ -0,0 +1,58 @@ +{ + "Date": "29 Mar, 2022", + "Action No.": "SCTC12527/2020", + "Neutral Cit.": "[2022] HKSCT 2", + "case_title": "熊達富 訴 律政司司長", + "page_title": "熊達富 訴 律政司司長 | [2022] HKSCT 2 | HKLII", + "case_history": [ + { + "name": "SCTC12527/2020", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2020/12527" + }, + { + "name": "SCTC12528/2020", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2020/12528" + }, + { + "name": "SCTC12529/2020", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2020/12529" + }, + { + "name": "SCTC12530/2020", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2020/12530" + }, + { + "name": "SCTC12532/2020", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2020/12532" + }, + { + "name": "SCTC20434/2020", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2020/20434" + }, + { + "name": "SCTC20435/2020", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2020/20435" + }, + { + "name": "SCTC37602/2020", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2020/37602" + }, + { + "name": "SCTC19149/2021", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2021/19149" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hksct/2022/2", + "neutral_cit": "[2022] HKSCT 2", + "court_code": "HKSCT", + "content": "SCTC12527/2020 熊達富 訴 律政司司長\nSCTC 12527-30, 12532, 20434-5,\n37602/2020 & 19149/2021\n[2022] HKSCT 2\n香港特別行政區\n小額錢債審裁處\n申索2020年第12527號\n________________________\n熊達富\n申索人\n訴\n律政司司長\n被告人\n________________________\n主審審裁官：\n林希維審裁官\n日期：\n2022年3月29日\n時間：\n下午3時07分\n地點：\n西九龍法院大樓\n出席人士：\n陳仲賢，申索人代表\n黃汝凝，被告人代表\n________________________\n申索2020年第12528號\n________________________\n趙金興\n申索人\n訴\n律政司司長\n被告人\n________________________\n出席人士：\n陳仲賢，申索人代表\n黃汝凝，被告人代表\n________________________\n申索2020年第12529號\n________________________\n劉嘉曦\n申索人\n訴\n律政司司長\n被告人\n________________________\n出席人士：\n陳仲賢，申索人代表\n黃汝凝，被告人代表\n________________________\n申索2020年第12530號\n________________________\n周雄光\n申索人\n訴\n律政司司長\n被告人\n________________________\n出席人士：\n吳衛東，申索人代表\n黃汝凝，被告人代表\n________________________\n申索2020年第12532號\n________________________\n陳大發\n申索人\n訴\n律政司司長\n被告人\n________________________\n出席人士：\n吳衛東，申索人代表\n黃汝凝，被告人代表\n________________________\n申索2020年第20434號\n________________________\n吳隨有\n申索人\n訴\n律政司司長\n被告人\n________________________\n出席人士：\n吳衛東，申索人代表\n黃汝凝，被告人代表\n________________________\n申索2020年第20435號\n________________________\n阮少碧\n申索人\n訴\n律政司司長\n被告人\n________________________\n出席人士：\n陳仲賢，申索人代表\n黃汝凝，被告人代表\n________________________\n申索2020年第37602號\n________________________\n陳志榮\n申索人\n訴\n律政司司長\n被告人\n________________________\n出席人士：\n陳志榮，申索人\n黃汝凝，被告人代表\n________________________\n申索2021年第19149號\n________________________\n陳志堅\n申索人\n訴\n律政司司長\n被告人\n________________________\n出席人士：\n陳志榮，申索人代表\n黃汝凝，被告人代表\n判決理由書\n1.\n本案源自一次警方同康樂文化事務署（以下簡稱為「康文署」）喺通州街公園（以下簡稱為「公園」）裡面採取嘅聯合行動。行動中，署方將露宿喺公園裡面各申索人嘅私人財物移走，並且喺三日之後將無人認領嘅部份棄置。\n2.\n各申索人而家向署方提出申索。\n申索方案情\n3.\n2019年12月21號下晝約三點半，警方同康文署人員到達公園，佢哋要求各無家者包括當時在場嘅申索人（即係熊達富、劉嘉曦、周雄光、陳大發同埋陳志榮）喺三分鐘內收拾個人物品。三分鐘之後，署方人員將無人收拾嘅物品抌咗落大型手推垃圾車裡面，並將佢哋移到公園壁球中心後門，平時用作擺放園內垃圾嘅地方。部份申索人曾經親自或者透過其他無家者嘅協助，嘗試搵番個人財物，但係佢哋未能夠全數搵番，呢啲物品最後三天之後被棄掉。\n4.\n各申索人指，康文署過往亦都會進行類似嘅清場行動，但係佢哋必會事前作出通知或者張貼告示，好讓無家者配合。然而，今次署方卻喺冇事前通知下，只係給予佢哋極短時間收拾就採取行動，而且部份無家者事發時根本不在現場，未能獲悉需要收拾，就被署方將佢哋啲個人物品視為無人認領而去移走咗。\n5.\n申索方認為署方嘅做法同過往嘅唔同，但係事前又冇警告無家者將會改變清場手法，故此對署方作出多項嘅投訴。然而，申索方結案嘅時候同意，法庭只係需要就「非自願托管者」（即係Involuntary bailee）嘅法律原則作出考慮。\n被告方案情\n6.\n被告方否認只係給予無家者三分鐘執拾個人物品就進行清場。\n7.\n負責今次行動嘅警方指揮官吳彥柏督察供稱，佢當日喺下晝3點40分開始喺公園嘅八角亭勸喻無家者收拾個人物品，十五分鐘之後（即係下晝3點55分），佢到達公園嘅木亭（即係近住南昌邨昌頌樓）作出相同嘅勸喻。下晝4點05分，佢返番去八角亭，康文署人員先至開始清場。故此，無家者最少有二十五分鐘時間收拾個人物品。\n8.\n康文署嘅公園經理王先利先生亦都指，當佢哋移除無人認領物品嘅時候，佢哋曾要求在場嘅無家者通知其他不在場人士，物品將會被移送到壁球中心後門，佢哋可以去嗰度進行認領。王經理續指，佢哋一貫嘅做法係將無人認領嘅物品保留三日，唔會即時棄掉，今次亦都唔例外。\n一般\n法律原則\n9.\n喺民事訴訟中，提出主張嘅一方有責任攞出證據，證明佢嘅主張；亦即係話誰主張，誰舉證（參見Phipson on Evidence第19版，第6章第6段）。\n10.\n喺考慮證人是否誠實同埋可信方面，高等法院原訟法庭暫委法官馮庭碩資深大律師喺\nHui Cheung Fai v Daiwa Development Ltd\nHCA 1734/2009第77至81段嗰度係列舉咗相關嘅原則：\n（1）一般嚟講，同關鍵事件同時期存在嘅文件對評估證人嘅可信性至關重要；\n（2）證人嘅說法嘅固有可能性，或者係咪符合明顯嘅邏輯，亦都係重要嘅指標；\n（3）法庭亦可考慮證人嘅口供係咪前後一致，或者係咪同不能爭議嘅證據相符；\n（4）法庭應謹記證供嘅真實性不能單憑證人嘅外表或者作供時嘅神態決定；\n（5）總括而言，法庭可考慮客觀證據、證人嘅動機，同埋整體證據嘅可能性。\n侵佔財物（Conversion）與非自願托管者（Involuntary bailee）嘅法律原則\n11.\n高等法院原訟法庭暫委法官吳美玲（當時官階）喺\nDesir Anthony C v Knight Frank （Services）Ltd & Others\nHCSA 36/2013一案中，闡述咗侵佔財物同非自願托管者嘅法律原則。佢喺判詞第82至到83段首先提到以下：\n“Conversion occurs when property is wrongfully destroyed. A defendant deals with others’ goods at his peril: unless he can invoke some specific defence he is potentially liable, however reasonable or well-intentioned his action. But if an involuntary bailee performs in good faith an act which, taken in the abstract, would amount to a conversion, he is liable only if the performance of that act was accompanied by a lack of reasonable care\n.\nIf an involuntary bailee conscientiously performs acts with the object of returning the goods to their owner, such acts would be regarded as reasonable acts. But what is reasonable will depend on all the circumstances, including the nature of the goods. The burden falls on the involuntary bailee to prove that he has exercised the required standard of care.\nAs regards conversion by destruction, if A is in possession of goods belonging to B and A destroys those goods without B’s permission, A is ordinarily liable to B for conversion. There is at common law no general right to dispose of goods which a bailor has refused, or is unable, to collect. Thus, ordinarily, an involuntary bailee is not entitled to destroy goods just because they have become a nuisance to the bailee...”\n12.\n吳法官其後喺判詞嘅第97段討論非自願托管者嘅責任時亦都指出：\n“An involuntary bailee’s duty is to act prudently and he can only dispose of the goods if it is in the interests of the\nowner\nto do so, and “there is little prospect of its acceptance in situations where the disposal …… is for the benefit of the\nbailee\nalone.””\n關於責任問題嘅討論\n13.\n與訟雙方冇爭議，署方確曾喺行動後三天將無人認領嘅物品棄掉，另一方面，案中亦都冇任何證據顯示署方嘅行動懷有惡意。故此，根據上文提到嘅法律原則，法庭喺本案中需要考慮嘅係署方作為本著真誠行事（good faith）嘅非自願托管者，喺處理無家者嘅物品時係咪已經行使合理程度嘅謹慎（reasonable care）。\n14.\n署方指出，佢哋冇將物品即時棄掉，就係希望畀物主機會領回個人物品（見被告方結案陳詞嘅第10段），而事實上，部份申索人亦都成功搵到自己嘅私人財物，只係佢哋認為呢啲財物已經被整污糟，所以放棄攞番（見陳詞嘅第11段），亦有啲申索人只係草草咁樣搵咗一陣就放棄繼續搵（見陳詞嘅第18段）。\n15.\n此外，署方認為本案嘅情況同剛才提到\nDesir Anthony C\n案有別，本案中，各申索人冇向康文署職員表明佢哋物主嘅身份，亦都冇主動同職員商討攞番物品嘅方法，所以署方嘅主張係各申索人屬於自願摒棄個人財物（見陳詞嘅第19段）。\n16.\n就通知物主方面，署方指佢哋已經透過在場嘅無家者通知不在場者物品嘅去向，呢個係佢哋一貫嘅做法，而無家者亦都清楚呢一項安排（見佢哋嘅陳詞第21段）。而且，無家者亦都冇喺個人財物上寫上姓名（見陳詞23段），署方又冇責任主動尋找物主（見\nDesir Anthony C\n案第92段），故此，署方認為佢哋喺事件上已經行使咗合理程度嘅謹慎。\n17.\n本席已經細心考慮咗署方嘅陳詞，但係認為署方嘅做法並未達到法律嘅要求。\n18.\n首先，署方將物品三日後被棄置歸咎於無家者冇認真尋找，係佢哋自願放棄財物，本席認為呢一個說法並唔係建基於正確嘅事實基礎。\n19.\n根據庭上嘅證供，署方人員將無人收拾嘅物品放滿咗十二架垃圾手推車，每輛手推車高於一米（見文件冊D16相片），而公園經理王先生亦都承認園內約有七十位無家者露宿，但係清場嘅時候卻只係有二十多人在場。換句話說，為數不少嘅無家者需要喺眾多嘅物品中尋找屬於自己嘅財物，然而呢啲財物並唔係有系統咁樣被放喺地上，供人認領，而係放喺平常用作運送垃圾嘅手推車裡面。更不幸嘅係，部份無家者份屬老弱傷殘，要求佢哋伸手進入一米深嘅手推車內尋找個人物品，未免太過強人所難。因此，本席拒絕接納署方指稱各申索人係自願放棄取回財物嘅說法。\n20.\n署方陳詞嘅時候又指，各申索人冇向康文署表明佢哋物主嘅身份，亦都冇表明期望係攞番啲物品。本席同樣拒絕接納呢一個說法。從申索方提供嘅文件可見（見文件冊C3），申索方代表吳先生喺2019年12月23日凌晨4點16分（即係清場之後大約一日半）曾經向警方同埋康文署發出電郵，詢問點樣可以攞番被清理嘅個人財物，電郵嘅內容毫不含糊咁樣提及無家者或者係露宿者係被清理物品嘅擁有人，同埋佢哋希望能夠取回物品嘅意願，呢啲物品當時仍未被棄掉，本席認為署方理應喺呢一刻已經知道無家者並未放棄佢哋嘅財物，相反地，佢哋期望署方能夠安排佢哋係攞番啲財物。\n21.\n署方陳詞嘅另一個重點係，佢哋認為佢哋透過在場嘅無家者通知不在場者攞番啲物品，已足以履行法律訂下嘅謹慎責任。本席認為，署方冇好似以往咁樣張貼告示，只係單單依賴在場者進行通報，喺冇證據顯示各無家者互相認識嘅情況下，呢一個做法難以確保不在場者必然知道物品何去何從。然而，本席更加關注嘅係，物品被清理嘅時候，已經被署方係掉咗入去垃圾手推車裡面，各人嘅物品必定已經係亂作一團，又同其他無家者嘅物品混在一起，所以就算署方已經通知物主擺放物品嘅位置，無家者亦都難以搵番自己嘅財物。故此，本席認為署方未能喺知會無家者認領失物嘅議題上，稱得上負起咗謹慎責任。\n22.\n最後，署方要求法庭考慮無家者冇喺個人物品上寫上姓名，而署方亦都冇尋找物主嘅責任，所以佢哋喺三天後將物品棄掉，實屬合理嘅做法。\n23.\n本席認為，署方既然選擇喺清場嘅時候移走無家者嘅物品，佢哋就要負上非自願托管者嘅責任，呢個責任除咗要求佢哋真誠行事，仲要求佢哋對有關物品作出合理嘅照顧［見\nChan Cho Fai v Lam Kit Heung\n[2017] 4 HKLRD 794\n（見中文附註headnote）］。本席認為，以本案移走物品嘅數量而計，署方有責任就物品進行簡單嘅記錄或者拍照，咁樣先至算得上係行使咗合理嘅謹慎或者對物品作出了合理嘅照顧。\n24.\n本席提出上述嘅主張時，謹記喺\nDesir Anthony C\n案中，吳法官表明托管者冇主動退回物品畀物主嘅責任，然而，本案所牽涉嘅物品眾多，載滿咗十二輛手推車，但係署方卻冇將物品分類或者拍照畀無家者得知佢哋嘅個人物品被放咗喺邊度，或者係喺邊一架嘅手推車內。本席認為呢一個做法並未達到合理謹慎嘅程度，亦都唔能夠稱得上係對物品作出咗合理嘅照顧。\n25.\n本席重申，法庭並唔係要求署方需要主動咁樣將移走嘅物品退回畀無家者，但係佢哋至少都需要將物品合理地保存或者係作一啲記錄，好讓當無家者嘗試尋找自己嘅財物時，唔使喺十二架一米高嘅垃圾手推車裡面毫無頭緒咁樣喺度亂搵。\n26.\n本席認為，署方將無家者嘅私人財物用垃圾手推車運走，又喺冇緊急情況或衛生問題下（呢一個係冇證據顯示被棄掉嘅物品有呢啲情況，而公園經理王先生供稱保留無人認領物品三日係署方一貫嘅做法）而將物品三天後棄掉，而期間無家者亦都曾經透過社工向署方表明希望攞番啲物品，呢啲都顯示署方行事上有欠合理嘅謹慎。\n27.\n綜合以上分析，本席裁定署方未能喺相對可能性下證明佢哋已經負上非自願托管者應有嘅責任。\n申索人嘅損失\n28.\n本審訊嘅申索人喺佢哋嘅證人供詞中，都指自己係露宿於公園嘅無家者，同埋喺今次嘅行動中被署方丟棄咗個人財物，蒙受損失。就此，本席信納各人喺案中嘅身份，亦都裁定佢哋因為財物被棄掉而遭受金錢上嘅損失。\n29.\n法庭喺度記錄在案，除咗熊達富同埋陳志堅外，其他七名嘅申索人都有係出庭作供。熊達富當時喺醫院留醫，陳志堅當時係被還押中。\n30.\n然而，本席認為各申索人未能提供足夠證據證明呢一啲財物包括咗啲乜嘢嘢，同埋價值係幾多。佢哋喺各自嘅證人供詞中，只係以列表嘅方式列出被棄置物品嘅種類、數量同埋金額，但係佢哋未有交出任何相片或者單據作為佐證。\n31.\n此外，就個別申索人嘅證供而言，佢哋嘅說法亦都曾出現前後矛盾或者不合理嘅地方。舉例說，劉嘉曦（即係SCTC 12529/20案中嘅申索人），喺佢嘅證人供詞中，指自己因為署方嘅行動唔見咗3,000鈫，呢3,000鈫係由六張500鈫組成，但係盤問之下又話呢3,000鈫其實係由三張1,000鈫組成。另一位申索人周雄光（SCTC 12530/20嘅申索人）則喺佢嘅證人供詞表示，佢唔見咗一張床褥，但係喺盤問時又話床褥其實已經喺壁球中心嘅後門搵番。\n32.\n因此，本席喺相對可能性嘅舉證標準下，只能夠接納各申索人嘅寢具（即係床墊、睡袋、摺床、枕頭或者被等等）喺行動中被棄掉，其他嘅物品基於缺乏單據同埋客觀證明，本席裁定各申索人未能成功舉證。\n33.\n就寢具嘅價值而言，各申索人未有向法庭提供任何單據，本席喺缺乏客觀證據下，拒絕接納各申索人喺佢哋供詞中指稱嘅價值。然而，本席認為各申索人（包括未有出庭作供嘅熊達富同埋陳志堅）理應係得到象徵式嘅賠償（nominal damages）100鈫，作為寢具被棄掉嘅損失（參見McGregor on Damages第21版2021年，第12章第4段）。\n訟費\n34.\n若果法庭喺案件中只係命令被告方作出象徵式賠償，喺決定訟費責任嘅時候，法庭就需要去考慮究竟案中邊個先至係真正嘅勝訴者呢（the real winner of the case）（參見\nTsui Koon Wah v Ip Mei Ho trading as Michelle Ip & Co Solicitors\nHCSA 10/2021 第102段）。如果法庭認為由於被告方毋須作出全額賠償，所以收到象徵式賠償嘅申索方事實上並唔係案件嘅真正勝訴者，咁樣法庭就有權命令申索方係支付番對方嘅訟費（見\nTsui Koon Wah\n案第107段）。\n35.\n本席認為儘管各申索人喺案中只係得到象徵式賠償，佢哋喺責任問題上顯然係勝出者。本席明白被告方唔會單單因為提出不成功嘅抗辯，就會被視為真正嘅敗訴者（參見\nIn re Elgindata Ltd （No 2）\n[1992] 1 WLR 1207\n第1214頁，同埋\nTsui Koon Wah\n案第98同109段），但係喺今次嘅審訊中大部份嘅時間都係用咗喺責任問題嘅爭議上。換句話說，處理責任問題確實係延長咗審訊嘅時間。\n36.\n故此，本席認為今次案件中恰當嘅訟費命令應該係與訟各方各自負責自己嘅訟費。\n總結\n37.\n基於以上所述，本席裁定各申索人勝訴，被告方須支付每名申索人款項100鈫，同埋上述判決款項嘅判決後利息，以判定利率計算，由裁斷日起計至款項付清時止。\n38.\n此外，本席不作任何訟費命令。", + "attachments": [ + { + "download_url": "https://legalref.judiciary.hk/doc/judg/word/vetted/other/ch/2020/SCTC012527_2020.doc", + "file_name": "SCTC012527_2020.doc", + "file_ext": ".doc", + "status": "success" + } + ] +} \ No newline at end of file diff --git a/zh_cases_hksct/2022_HKSCT_3/case.json b/zh_cases_hksct/2022_HKSCT_3/case.json new file mode 100644 index 0000000..0044eea --- /dev/null +++ b/zh_cases_hksct/2022_HKSCT_3/case.json @@ -0,0 +1,46 @@ +{ + "Date": "21 Jul, 2022", + "Action No.": "SCTC12527/2020", + "Neutral Cit.": "[2022] HKSCT 3", + "case_title": "熊達富 訴 律政司司長", + "page_title": "熊達富 訴 律政司司長 | [2022] HKSCT 3 | HKLII", + "case_history": [ + { + "name": "SCTC12527/2020", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2020/12527" + }, + { + "name": "SCTC12529/2020", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2020/12529" + }, + { + "name": "SCTC12530/2020", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2020/12530" + }, + { + "name": "SCTC20434/2020", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2020/20434" + }, + { + "name": "SCTC20435/2020", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2020/20435" + }, + { + "name": "SCTC37602/2020", + "link": "https://www.hklii.hk/tc/appealhistory/SCTC/2020/37602" + } + ], + "appeal_history": [], + "case_url": "https://www.hklii.hk/tc/cases/hksct/2022/3", + "neutral_cit": "[2022] HKSCT 3", + "court_code": "HKSCT", + "content": "SCTC12527A/2020 熊達富 訴 律政司司長\nSCTC 12527,12529-30,\n20434-5, 37602/2020\n[2022] HKSCT 3\n香港特別行政區\n小額錢債審裁處\n申索編號2020年第12527號\n____________________________________________________________\n熊達富\n申索人\n訴\n律政司司長\n被告人\n____________________________________________________________\n主審審裁官\n：林希維審裁官\n書面陳詞日期\n：2022年5月5日 (申索人)\n：2022年6月8日 (被告人)\n判決理由書日期\n：2022年7月21日\n申索編號2020年第12529號\n____________________________________________________________\n劉嘉曦\n申索人\n訴\n律政司司長\n被告人\n____________________________________________________________\n主審審裁官\n：林希維審裁官\n書面陳詞日期\n：2022年4月14日 (申索人)\n：2022年6月8日(被告人)\n判決理由書日期\n：2022年7月21日\n申索編號2020年第12530號\n____________________________________________________________\n周雄光\n申索人\n訴\n律政司司長\n被告人\n____________________________________________________________\n主審審裁官\n：林希維審裁官\n書面陳詞日期\n：2022年4月14日 (申索人)\n：2022年6月8日(被告人)\n判決理由書日期\n：2022年7月21日\n申索編號2020年第20434號\n____________________________________________________________\n吳隨有\n申索人\n訴\n律政司司長\n被告人\n____________________________________________________________\n主審審裁官\n：林希維審裁官\n書面陳詞日期\n：2022年4月14日 (申索人)\n：2022年6月8日 (被告人)\n判決理由書日期\n：2022年7月21日\n申索編號2020年第20435號\n____________________________________________________________\n阮少碧\n申索人\n訴\n律政司司長\n被告人\n____________________________________________________________\n主審審裁官\n：林希維審裁官\n書面陳詞日期\n：2022年4月14日 (申索人)\n：2022年6月8日 (被告人)\n判決理由書日期\n：2022年7月21日\n申索編號2020年第37602號\n____________________________________________________________\n陳志榮\n申索人\n訴\n律政司司長\n被告人\n____________________________________________________________\n主審審裁官\n：林希維審裁官\n書面陳詞日期\n：2022年4月14日 (申索人)\n：2022年6月8日 (被告人)\n判決理由書日期\n：2022年7月21日\n_____________\n判決理由書\n(覆核聆訊)\n_____________\n背景\n1.\n本案原有9名申索人，當中6名申索人分別於2022年4月14日\n[1]\n及2022年5月5日\n[2]\n依據\n《小額錢債審裁處條例》\n[3]\n（「該條例」）\n第27A(2)(b)條\n提出申請，要求覆核本席於2022年3月29日頒布的裁決理由及命令。\n2.\n被告人反對各申索人的覆核申請。\n3.\n按法庭指示，與訟各方已就他們的立場向法庭提交書面陳詞，並同意本席以書面形式處理本覆核申請。\n4.\n本席已詳閱他們的陳詞，以下是本席就覆核申請的裁決理由。\n覆核理由\n5.\n各申索人提出覆核的理由如下：\n（一） 法庭沒有恰當地評定賠償金額；及\n（二） 法庭沒有基於各申索人受到「精神困擾」(mental distress)而命令被告人作出賠償。\n理\n由\n（一）：賠償金額的評定\n6.\n各申索人認為法庭在評定賠償金額時，應容許一個定額，而不用申索方提供單據證明，以免浪費法庭時間。\n7.\n就本案而言，各申索人認為本席理應先就每一個申索項目及金額詢問署方意見。若署方提出反對，本席便應要求署方提供他們認為合理的金額，跟著再詢問各申索人的意見，然後作出判決。\n8.\n本席認為，各申索人上述的建議明顯有違久已確立的普通法原則。\n9.\n正如本席在《判決理由書》\n[4]\n中指出，在民事訴訟中，提出主張的一方有責任拿出證據，證明其主張\n[5]\n。各申索人提出申索，要求賠償，他們便有責任證明他們的損失是多少。事實上，另一權威書籍《McGregor on Damages》（第21版）的作者亦指出，一名要求賠償的申索人必須證明他的損失\n[6]\n。故此，本席拒絕接納各申索人指本席不應要求他們提供單據的說法。\n10.\n此外，各申索人均在他們的陳詞中，夾附了一張單據作為「建議例子」呈堂。這張日期為2022年4月1日的單據由廣興綉莊發出，上面寫着一張三摺床褥，一個枕頭和一張棉被的總價值為476元。以本席理解，各申索人期望以此單據作為「例子」，說明本席就象徵式賠償所評定的金額過低。\n11.\n本席認為各申索人不能僅憑一張單據便要求法庭將賠償金額提高。\n12.\n首先，縱觀所有陳詞及證據，各申索人均未能證明該單據與他們所失物品有何關係。這張單據在判決後才發出，顯示單據上的物品不可能是各申索人遺失的寢具。\n13.\n再者，各申索人的主張也不是單據上的金額就是他們的實際損失，他們的說法並不是他們已購買或打算購買單據上的寢具作為替補。在這情況下，法庭拒絕視該單據上列出的金額為各申索人的實際損失。\n14.\n就評定象徵式賠償的金額而言，正如署方陳詞所指，本席裁定各申索人獲得100元象徵式賠償，並非因為本席認為各申索人的寢具只值100元，而是案中沒有本席認為可信納的證據，證明各申索人的損失。本席重新考慮後，認為將賠償金額評定為100元在法律上沒有任何錯誤之處，各申索人不能將該單據視作「建議例子」，要求法庭在評定象徵式賠償金額時考慮。\n15.\n故此，本席裁定理由（一）不成立。\n理\n由\n（二）：\n「精神困擾」賠償\n16.\n各申索人投訴本席未有依據該條例\n第16(3)條\n，就各申索人精神困擾一事作出查問，導致最終未有命令署方就此向各人作出賠償。\n17.\n該條例\n第16(3)條\n訂明：「審裁處如認為任何事宜與申索有關，則不論該事宜曾否由任何一方提出，亦須予以查訊。」\n18.\n然而，眾多案例均指出審裁官在聆訊中須承擔的查訊責任，並非一項絕對責任，審裁官亦毋須毫無選擇地和盲目地作出不必要的查訊。\n19.\n在\n謝林及其他二十位訴陳德偉（經營偉仕工程公司）\n[7]\n一案，高等法院原訟法庭法官陳振鴻就審裁官的調查責任發出以下指引：\n「(一) 審裁官所須承擔的調查責任，只限於“任何與申索有關事宜”。\n(二) 此責任並非一絕對責任，審裁官只須就任何對判決或對事實的裁定有重大影響的事宜，作出適當合理的調查。\n(三) 即審裁官並無責任對任何與有關事宜，不論其重要性，不論其是否有合理論據或基礎，毫無選擇地盲目地作出不必要的調查。\n(四) “與申索有關事宜”，有輕重之分，性質之別，絕不可一概而論，持一論而放諸四海。有效事宜，爲對判決或事實的裁定“有重大影響”者，即其影響力，並非必須對判決或事實的裁定起決定性作用，但須爲重要的影響力，足可引致一個合理的審裁官對其判決或事實的裁定，産生合理疑慮，或認爲有必要再作考慮。但調查責任不能引伸至一些較輕微，或少於上述程度的事宜。\n(五) “作出適當合理的調查”：同樣地，所須調查程度亦有深淺之別，形式之異。調查必須是適當而合理的調查，不可有任何偏見，不可有任何先入爲主之差。調查形式及程度，須視乎事宜本身的合理需要，不可一概而論。唯一絕對的準則，爲審裁官所持態度，必須中立持平，不可以任何一方代表律師爲己任。他的任務乃找出事實真相，而非以破壞證人的可信性爲目的。他只能在有合理的疑點時，對證人作出查訊性的盤問，深入的追問，以求真相。他絕不應在毫無合理的疑點時，對證人作出無理及無必要的盤問。審裁官能保持角色中立，不偏不倚，絕無庖代餘地，實至爲重要。」\n[8]\n20.\n高等法院原訟法庭暫委法官吳美玲（當時官階）在\n陳啟生，梁鳳儀經營生記工程公司訴\nYiu Chor Lin\n[9]\n一案中亦指出：\n「審裁官並非申索人或被告人的律師，他/她不可能在審訊前對申索人或被告人的案情有深入理解及知悉存在的證據，案中亦要有恰當的客觀事實或證據才能促使審裁官執行其調查責任，而審裁官有酎情權決定是否及如何進行調查。據此，雖然該審裁處有查訊任何與申索相關事宜的責任，但是該責任並非是絕對性的，該審裁處須因應案件的情況、爭議點、無爭議的事實及與訟雙方在審訊前呈交的資料，而酌情決定查訊的範圍。」\n[10]\n（強調由本席後加）\n21.\n在本案中，各申索人無論在他們的申索書或證人供詞均沒有提及他們曾受「精神困擾」，各申索人的代表亦沒有在審訊中提出就「精神困擾」要求賠償，而案中亦沒有任何醫療證據證明各申索人精神上確曾受到困擾，亦沒有其他客觀事實或證據支持各申索人的指稱。根據上述案例提及的法律原則，本席認為法庭根本毋須就此進行調查。\n22.\n故此，本席裁定理由（二）同樣不成立。\n訟費\n23.\n與訟各方均沒有提出訟費要求，因此本席不作任何訟費命令。\n總結\n24.\n基於以上所述，本席認為各申索人提出的覆核理由無一成立，故頒令如下：\n（一） 維持原來在2022年3月29日的裁決/命令，各申索人的覆核申請被撤銷；及\n（二） 不作任何訟費命令。\n(林希維)\n小額錢債審裁處\n審裁官\n[1]\n劉嘉曦、周雄光、吳隨有、阮少碧及陳志榮\n[2]\n熊達富\n[3]\n香港法例\n第338章\n[4]\n[2022] HKSCT 2\n[5]\n參見《判決理由書》第9段及《Phipson on Evidence》（第19版）第6-006段\n[6]\n參見第10-001段；原文為“A claimant claiming damages must prove their case.”\n[7]\nHCLA 150/1995；該案關乎\n《勞資審裁處條例》\n（香港法例\n第25章\n）\n第20條\n訂明的審裁官調查責任，該條文與\n《小額錢債審裁處條例》\n第16條\n內容相若。\n[8]\n參見該案例第9段\n[9]\nHCSA 39/2017;\n[2018] HKCFI 2700\n[10]\n參見該案例第21段", + "attachments": [ + { + "download_url": 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