Hong Kong Case Law: Decisions & Judgments | LexChat

Hong Kong Case Law

Freedom of occupation

  • 20 Jan 2023

    HKSAR v. FUNG KA CHUN AND ANOTHER

    Citation
    [2023] HKCA 59
    Court
    Court of Appeal
    Case number
    CACC368/2016

    Court upheld the convictions: s.137(1) covers persons who derive income from facilitating or promoting prostitution where the financial gain is referable to and closely connected with prostitution (parasitic/exploitative participation); control/direction is evidential under s.137(2) not a required element; s.137(1) as applied is constitutionally valid and proportionate; appellants' constitutional challenges and arguments for a narrow construction fail.

  • 20 Jan 2023

    HKSAR v. CHAN PAU CHI

    Citation
    [2023] HKCA 59
    Court
    Court of Appeal
    Case number
    CACC228/2019

    The Court held s.137(1) is to be construed to target parasitic/exploitative participation in the business of prostitution; s.137(2) is an evidentiary presumption (not an element); operators who run websites that facilitate and profit from advertising/promoting prostitution can lawfully be found to be living on the earnings of prostitution when the receipts are closely referable to that trade; the statutory provision does not infringe BL33, BOR14 or BOR5(1) as argued and, even if rights were engaged, the restriction is proportionate; appeals dismissed.

  • 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. CHAN PAK-KAY ANDREW

    Citation
    [2019] HKCFI 2899
    Court
    Court of First Instance
    Case number
    HCMA385/2018

    The offence under s52(3)(a) is proved by establishing the driver's subjective purpose to provide carriage of passengers from which he expected reward derived from the carriage; no requirement for an actual payment or a direct contractual agreement between driver and passenger; the provision is directed at predominantly commercial carriage (pak pai); the constitutional challenges were not reasonably arguable and the application for a certificate was dismissed.

  • 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.

  • 29 Nov 2019

    HKSAR v. LI SUI-LEUNG

    Citation
    [2019] HKCFI 2899
    Court
    Court of First Instance
    Case number
    HCMA395/2018

    The court held that s52(3)(a) focuses on the driver's subjective purpose to provide carriage from which the driver expects reward; no direct agreement or actual payment is necessary, and the provision targets predominantly commercial carriage; the applicants' proposed requirement of a direct agreement was not supported by authorities and the constitutional challenges (overbreadth and Basic Law Articles 28 and 33) were not reasonably arguable, therefore the application for a s32 certificate was dismissed.