Hong Kong Case Law: Decisions & Judgments | LexChat

Hong Kong Case Law

Basic law article 33

  • 29 Nov 2019

    HKSAR v. WONG TAK-MING

    Citation
    [2019] HKCFI 2899
    Court
    Court of First Instance
    Case number
    HCMA401/2018

    The court held that s52(3)(a) RTO focuses on the driver's subjective purpose to drive for carriage of passengers for hire or reward; it does not require an express direct agreement with the passenger or actual payment; the provision targets predominantly commercial carriage arrangements; the applicants' proposed direct‑agreement requirement and constitutional challenges were not reasonably arguable and certification was refused.

  • 29 Nov 2019

    HKSAR v. YIP WAI-MING

    Citation
    [2019] HKCFI 2899
    Court
    Court of First Instance
    Case number
    HCMA382/2018

    The court held that s52(3)(a) RTO requires proof of the defendant's subjective purpose to drive 'for the carriage of passengers for hire or reward', but it does not require a direct contractual agreement or direct payment from the passenger; the phrase is to be read as a whole and targets predominantly commercial carriage (pak pai) and the constitutional challenges under Articles 28 and 33 are not reasonably arguable in the circumstances; application for a certificate was dismissed.

  • 29 Nov 2019

    HKSAR v. LEE HING-LUNG GARY

    Citation
    [2019] HKCFI 2899
    Court
    Court of First Instance
    Case number
    HCMA390/2018

    The phrase 'for the carriage of passengers for hire or reward' in s52(3)(a) is a requirement of the defendant's subjective purpose: the prosecution must prove the driver intended the carriage to be for hire or reward; no direct contractual agreement between driver and passenger is required; the provision targets carriage of a predominantly commercial character and is supported by legislative history and local authorities; the application for certification was dismissed because the contested alternative constructions and constitutional challenges were not reasonably arguable.

  • 29 Nov 2019

    HKSAR v. YUONG HO-CHEUNG

    Citation
    [2019] HKCFI 2899
    Court
    Court of First Instance
    Case number
    HCMA381/2018

    The court held that s52(3)(a) focuses on the driver's subjective purpose (mens rea) to carry passengers for hire or reward, does not require an actual payment or a direct contractual agreement between driver and passenger, and targets predominantly commercial carriage; the applicants' narrower 'direct agreement' construction and constitutional challenges on overbreadth and freedom of occupation were not reasonably arguable and certification was refused.

  • 29 Nov 2019

    HKSAR v. WONG WAI-KEUNG

    Citation
    [2019] HKCFI 2899
    Court
    Court of First Instance
    Case number
    HCMA387/2018

    Application for a certificate dismissed because the central statutory interpretation question (meaning of 'for the carriage of passengers for hire or reward') is not reasonably arguable: s52(3)(a) focuses on the driver's subjective purpose to obtain reward from carriage (expectation of payment) but does not require direct agreement or actual payment; the carriage targeted is predominantly commercial; challenges based on overbreadth under BL28 and freedom of occupation under BL33 were not reasonably arguable in these consolidated appeals.

  • 29 Nov 2019

    HKSAR v. KONG CHEUK-LAI

    Citation
    [2019] HKCFI 2899
    Court
    Court of First Instance
    Case number
    HCMA402/2018

    Court held s52(3)(a) criminalises driving where the driver subjectively intended the driving 'for the carriage of passengers for hire or reward' (mens rea), actual payment or a direct contractual agreement between driver and passenger is not required, the provision targets predominately commercial carriage such as unlicensed taxi services, and the applicants' contentions were not reasonably arguable; application for certificate dismissed.

  • 13 Sept 2019

    HKSAR v. CHUNG TZE-CHUN IVAN

    Citation
    [2019] HKCFI 2280
    Court
    Court of First Instance
    Case number
    HCMA397/2018

    On rehearing the court held s52(3) RTO requires proof of the driver's subjective purpose (mens rea) that the driving was for the carriage of passengers 'for hire or reward'; no legal requirement of a direct contract with the passenger is to be read into the provision (such agreements are evidential but not essential); the magistrate's remedial reading and distance‑dependent reward requirement was rejected; the statute, properly construed, covers Uber arrangements where the driver's purpose is predominantly commercial and reward is derived from the carriage; on the facts before the court the a…

  • 27 Nov 2012

    JA v. DIRECTOR OF IMMIGRATION

    Citation
    JA v. DIRECTOR OF IMMIGRATION
    Court
    Court of Appeal
    Case number
    CACV48/2011

    HKBORO s.11 applies to the appellants' circumstances and therefore precludes invocation of rights under the BOR/ICCPR to challenge a condition of stay barring employment; the UK reservation/notification to ICESCR6 operates as a reservation modifying the right to work so that non‑permanent residents subject to conditions of stay cannot rely on ICESCR6 to require permission to work; Basic Law art 33 does not guarantee a substantive right to be employed or to take up available employment and is not co‑extensive with ICESCR6; accordingly the appeals are dismissed.

  • 27 Nov 2012

    PA v. DIRECTOR OF IMMIGRATION

    Citation
    PA v. DIRECTOR OF IMMIGRATION
    Court
    Court of Appeal
    Case number
    CACV46/2011

    HKBORO s.11 applies to immigration legislation governing entry, stay and departure and thus precludes reliance on BOR/ICCPR to challenge a condition of stay prohibiting employment for persons without right to enter or remain; the UK reservation to ICESCR6 modifies the right to work so it does not apply to non-permanent residents subject to conditions of stay; Basic Law 33 guarantees freedom of choice of occupation but not a right to be employed; accordingly the appeals are dismissed.

  • 27 Nov 2012

    MA v. DIRECTOR OF IMMIGRATION

    Citation
    MA v. DIRECTOR OF IMMIGRATION
    Court
    Court of Appeal
    Case number
    CACV44/2011

    HKBORO s.11 applies to conditions of stay including employment restrictions so appellants cannot invoke BOR/ICCPR rights to challenge the prohibition on work; the UK reservation to ICESCR6 operates as a modification excluding non-permanent residents from the ICESCR6 right to work as applied to Hong Kong; Basic Law article 33 does not create a standalone positive right to take up employment; accordingly the appeals are dismissed.