Hong Kong Case Law: Decisions & Judgments

Topic

Due diligence defence

Legal area

Court

17 Jun 2009

HKSAR v. KWAN ON CONSTRUCTION LTD

Citation

HKSAR v. KWAN ON CONSTRUCTION LTD
Court

Court of First Instance
Case number

HCMA1028/2008

The Court held that the water discharged had been contaminated as a direct consequence of the appellant's construction activities and, having exceeded the suspended solids limit specified in the licence at the licence sampling point, constituted industrial/trade effluent; the prosecution was not required to identify the exact nature of the suspended particles and the due diligence defence failed, therefore the conviction was upheld.
8 Jun 2009

HKSAR v. KWAN ON CONSTRUCTION CO LTD

Citation

HKSAR v. KWAN ON CONSTRUCTION CO LTD
Court

Court of First Instance
Case number

HCMA285/2009

The court held that the regulation covers any activity that generates dust irrespective of being described as cutting, trimming or breaking; the evidence proved a power‑driven operation producing dust without required dust suppression and the appellant failed to establish the s.7 due diligence defence, therefore the conviction and fine were upheld.
22 Jan 2008

HKSAR v. PAUL Y CONSTRUCTION & ENGINEERING CO LTD AND ANOTHER

Citation

HKSAR v. PAUL Y CONSTRUCTION & ENGINEERING CO LTD AND ANOTHER
Court

Court of First Instance
Case number

HCMA161/2007

The Court accepted the magistrate's factual findings and preference for the prosecution metallurgical expert: the failed pins were medium carbon substandard pins (not Potaine originals), they fractured by reverse bending fatigue over months with rusting and working-out occurring prior to collapse making the condition patent on proper inspection, and the appellants failed to prove due diligence; therefore the convictions under the lifting-gear regulations are upheld.
8 Mar 2000

HKSAR v. LEIGHTON CONTRACTORS (ASIA) LTD.

Citation

HKSAR v. LEIGHTON CONTRACTORS (ASIA) LTD.
Court

Court of First Instance
Case number

HCMA1255/1999

The due diligence defence is not available to a defendant charged with this strict liability regulatory offence absent express statutory provision and, on the facts, even if available it was not established; Regulation 38P(2) does not afford a defence where the absence of guardrail/covering occurred during an interruption of work (tea break) and thus was not 'necessary in order to proceed' or 'for the time and to the extent necessary'; accordingly the conviction is upheld.
29 Oct 1998

HKSAR v. HOP SHING LOONG LIGHTING LTD.

Citation

HKSAR v. HOP SHING LOONG LIGHTING LTD.
Court

Court of First Instance
Case number

HCMA605/1998

The court held that s.13(3) is not an ingredient of the offence under s.13(6) so the prosecution was not required to prove compliance with s.13(3); the notice is presumed valid and the appellant failed to properly challenge validity by s.19 appeal or judicial review; the defence of due diligence was unavailable because there was no third party whose compliance could reasonably be relied upon and delegation to contractors does not negate statutory responsibility; doing one\u2019s best is mitigation, not a defence. Consequently the magistrate did not err and the appeal must fail.
25 Sept 1996

R. v. MULITEX (EXPORTS) LTD.

Citation

R. v. MULITEX (EXPORTS) LTD.
Court

Court of First Instance
Case number

HCMA516/1996

The appellant failed to prove the s12(2)(a) due diligence defence because it could with reasonable diligence have discovered the false trade descriptions prior to importation; the acts of causing the goods to be brought into Hong Kong were sufficiently proximate to constitute an attempted import; therefore the conviction was properly upheld despite sale by sample or lack of actual knowledge.
21 Dec 1995

R. v. HUANG WEI JIAN and Another

Citation

R. v. HUANG WEI JIAN and Another
Court

Court of Appeal
Case number

CACC621/1995

S.37D is a strict offence with a narrow due diligence defence which the 2nd applicant did not establish on the evidence; the untested exculpatory statement was improbable and insufficient to raise a reasonable doubt; the evidence proved the offences beyond reasonable doubt and the sentences and discounts applied were not wrong or manifestly excessive, thus appeals are dismissed.
4 Jul 1995

R. v. NG CHI WAI

Citation

R. v. NG CHI WAI
Court

Court of First Instance
Case number

HCMA352/1995

The Court held the appellant's conduct of delivering the container to the cargo handling area and leaving it were acts of preparation, not an attempt to export; accordingly the conviction for attempting to export was unsustainable and was quashed.
5 Jan 1995

KEENING INDUSTRIAL LIMITED and Another v. R.

Citation

KEENING INDUSTRIAL LIMITED and Another v. R.
Court

Court of Appeal
Case number

CACC653/1993

The Court held that (a) the second container was "goods in transit" at the checkpoint and could not sustain a full importing conviction, but the appellants had done all that remained to import the goods so convictions for importing (charges 1 and 3) were substituted with convictions for attempting to import; (b) the first container had been taken off the vehicle and placed in storage so appellants were in constructive possession and convictions for attempting to export (charges 2 and 4) and possession for trade (charges 5 and 6) as found by the trial court were upheld insofar as they related…
7 Dec 1990

THE QUEEN v. CHOI KA-LOK

Citation

THE QUEEN v. CHOI KA-LOK
Court

Court of First Instance
Case number

HCMA1319/1990

A director who, even as an agent of the company, caused goods to be imported can be convicted under Section 12(1); Section 20 does not bar prosecution of a director under Section 12(1) and the appellant was not disadvantaged by that mode of prosecution, so conviction is proper.