HKSAR v. SHUN TAK PROPERTIES LTD
- Citation
- HKSAR v. SHUN TAK PROPERTIES LTD
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of First Instance
- Decision
- 9 January 2007
- Posture
- Magistracy Appeal (hcma1014/2006 on Appeal From ESS 7775/2006) / Reserved to the Court of Appeal
- Case number
- HCMA1014/2006
- Language
- English
More details
- Court
- Court of First Instance
- Decision
- 9 January 2007
- Posture
- Magistracy Appeal (hcma1014/2006 on Appeal From ESS 7775/2006) / Reserved to the Court of Appeal
- Case number
- HCMA1014/2006
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The judge exercised the power under Section 118(1)(d) to reserve the appeal to the Court of Appeal for an authoritative determination whether the common-law defence is available to a defendant convicted under Regulation 4, because of inconsistent decisions at magistrates' level and the urgency of resolving the issue.
Court disposition
Appeal reserved to the Court of Appeal
Orders
- Reserve the appeal to the Court of Appeal pursuant to Section 118(1)(d)
- No determination on the substantive issue made at this stage
02
Material facts
Parties
HKSAR
Respondent Counsel: Mr Joseph Wong, Senior Government CounselShun Tak Properties Limited
Appellant Counsel: Mr Toby R W Jenkyn-Jones03
Procedural history
Posture
Magistracy Appeal (hcma1014/2006 on Appeal From ESS 7775/2006) / Reserved to the Court of Appeal
04
Questions and positions
Legal issues
- 01
Whether the common-law offence/defence is available to a defendant convicted under Regulation 4 of the Factories and Industrial Undertakings (Suspended Working Platforms) Regulations
- 02
Appropriate forum to resolve conflicting views among magistrates on that issue
Party arguments
- Applicant
- The Appellant contended that the common-law defence/offence is available in respect of a conviction under Regulation 4 and urged determination of the point because magistrates have reached inconsistent conclusions.
- Respondent
- The Respondent did not oppose referral and indicated the point requires authoritative resolution by the Court of Appeal; effectively disputed or reserved on the substantive availability of the common-law defence.
05
Court’s reasoning
Legal principles
- 01
Magistrates Ordinance s118(1)(d)
Power to reserve an appeal to the Court of Appeal under Section 118(1)(d)
- 02
Common law and Factories and Industrial Undertakings (Suspended Working Platforms) Regulations
General principle that availability of common-law defences to statutory/regulatory offences must be determined by reference to statute and common law
06
Ratio, limits and disposition
Ratio decidendi
The judge exercised the power under Section 118(1)(d) to reserve the appeal to the Court of Appeal for an authoritative determination whether the common-law defence is available to a defendant convicted under Regulation 4, because of inconsistent decisions at magistrates' level and the urgency of resolving the issue.
Obiter and limits
- There are differing views at first instance and inconsistent magistrates' decisions are an unsatisfactory state of affairs
- Both parties invited the court to reserve the issue to the Court of Appeal
Court disposition
Appeal reserved to the Court of Appeal
- Reserve the appeal to the Court of Appeal pursuant to Section 118(1)(d)
- No determination on the substantive issue made at this stage
Source and reliance status
Court of First Instance · 9 January 2007
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of First Instance
Judgment· 9 January 2007
bjbj HCMA1014/2006
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. HCMA1014/2006 (ON APPEAL FROM ESS 7775/2006) _____
BETWEEN HKSAR Respondent and Shun Tak Properties Limited Appellant ( t gP r or not what is called, the common-law offence, is available to the Appellant who has been convicted under Regulation 4 of the Factories and Industrial Undertakings (Suspended Working Platforms) Regulations.
2. There are different views at first instance on the general availability of such a defence, and it seems to me the matter needs to be resolved as a matter of some urgency because when such prosecutions or similar ones are undertaken in the Magistrates Court some magistrates say it applies, some do not. That is a an unsatisfactory state of affairs.
3. Accordingly, I am going to exercise, at the invitation of both parties, my power under Section 118(1)(d) to reserve the appeal to the Court of Appeal and that is the order I make today. (P Line) Deputy High Court Judge Representation: Mr Joseph Wong, Senior Government Counsel, of the Department of Justice, for the Respondent Mr Toby R W Jenkyn-Jones, instructed by Messrs Johnson, Stokes & Master, for the Appellant
PAGE
PAGE CRT28/9.1.2007/DB HCMA1014/2006/Reasons for Decision
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
U
V
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
U
V
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
U
V
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T U V &`#$ JUDGE.DOT setup Microsoft Word 9.0 judiciary Title Microsoft Word Document MSWordDoc Word.Document.8
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.