Hong Kong Case Law: Decisions & Judgments

Topic

Permanent stay of proceedings

Legal area

Court

8 Jan 2024

香港特別行政區訴馬敬

Citation

[2024] HKDC 67
Court

District Court
Case number

DCCC81/2023

The defence failed to prove on the relative likelihood standard that the absence of the four alleged providers would make a fair trial impossible or that no adequate remedy existed; the defence did not establish what the missing witnesses would say or how their evidence would materially assist, the defence had made reasonable efforts to secure attendance, and the prosecution's conduct in not calling them was lawful and rational; accordingly the permanent stay application was refused.
7 Sept 2022

RE OZNER WATER INTERNATIONAL HOLDING LTD

Citation

[2022] HKCFI 2875
Court

Court of First Instance
Case number

HCCW430/2020

The court was satisfied that the statutory and equitable criteria for sanctioning the creditor-approved scheme were met and therefore sanctioned the scheme; the court exercised its discretion to grant a permanent stay of further winding-up proceedings conditional on (1) publication of a resumption of trading notice by the HKEX in respect of the Company's shares and (2) the Liquidators filing either a Form D1 or D2 with the Official Receiver; the court ordered the Official Receiver's costs of involvement of HK$48,951.50 to be paid from the Company's assets and recorded that the Liquidators mus…
11 Aug 2022

香港特別行政區訴楊天聰

Citation

[2022] HKCFI 2365
Court

Court of First Instance
Case number

HCMA450/2021

Although the judge may have used language associated with the first category of stay, on rehearing applying the correct principles and balancing the competing public interests the court concluded the prosecution's reversal was not in bad faith, a fair trial remained possible, and the integrity/public interest in prosecuting a serious offensive-weapon offence outweighed the prejudice to the appellant; accordingly the refusal to grant a permanent stay was upheld.
31 May 2022

HKSAR v. MILNE John

Citation

[2022] HKCFA 10
Court

Court of Final Appeal
Case number

FAMC7/2022

The Appeal Committee granted leave to appeal because it was reasonably arguable that the judge below misapplied the established principles for granting a permanent stay and because the appeal raises a question of law of great and general importance about whether bail conditions may be set so as to render an intended prosecution appeal nugatory; accordingly leave was granted and the appeal was fixed for hearing.
18 Mar 2022

HKSAR v. MILNE JOHN

Citation

[2022] HKCFI 800
Court

Court of First Instance
Case number

HCCC240/2020

Customs & Excise's handling of P60 involved repeated insecure access without contemporaneous hashing or secure imaging, produced incomplete and unverifiable extractions and precluded any independent s22A certification; the lost/unverifiable digital material was central and corroborative of the sole defence issue (lack of knowledge) so that, on balance of probabilities, no fair trial could be held; accordingly the court exercised its inherent jurisdiction to permanently stay proceedings and order immediate release.
19 Dec 2019

HKSAR v. CHAN CHI TAO

Citation

[2019] HKCFA 49
Court

Court of Final Appeal
Case number

FAMC54/2019

The application for leave to appeal was dismissed because the magistrate and the judge below correctly applied established principles: the high threshold for a permanent stay was not met, uncharged acts evidence was admissible and properly limited to context, the duplicity complaint was not a proper fresh ground and lacked merit, and the magistrate gave adequate reasons and permissibly found the complainant credible and the applicant not credible.
31 Jul 2018

香港特別行政區訴秦錦釗及另五人

Citation

[2018] HKDC 920
Court

District Court
Case number

DCCC919/2015

The court dismissed the second application for a permanent stay because the defendants failed to establish that the asserted infringements (restriction of counsel choice, invalid subpoenas issued by a defendant, letters rogatory process, absence of certain mainland witnesses, alleged deceptive warrants or unlawful searches, or disputed characterisation of proceeds) met the high threshold for permanent stay; specific subpoenas tendered by a defendant were declared invalid and the remaining complaints either lacked evidential foundation or had been previously determined.
4 Nov 2014

HKSAR v. HON MING KONG AND OTHERS

Citation

HKSAR v. HON MING KONG AND OTHERS
Court

Court of Final Appeal
Case number

FAMC26/2014

Leave to appeal was refused because no point of law of great and general importance was raised: Article 95 does not impose a duty to establish a mutual legal assistance scheme; the applicants failed to show inequality of arms or that the absence of Mainland witness evidence made the trial unfair to the degree requiring a permanent stay; the Court of Appeal's fresh discretionary exercise was unimpeachable and there was no substantial and grave injustice warranting further appeal.
17 Jun 2008

RE LU DAYONG

Citation

RE LU DAYONG
Court

Court of Appeal
Case number

CACV139/2008

The court held that applications for judicial review challenging a trial judge's refusal to grant a permanent stay for deliberate breach of legal professional privilege are not categorically impermissible but are fact‑sensitive; no threshold higher than the arguability test was adopted; because judicial review is a remedy of last resort and satellite litigation in criminal cases is only acceptable in highly exceptional circumstances, the facts here did not justify collateral challenge and the court refused to certify the questions under section 32.
17 Jun 2008

RE KO KIT

Citation

RE KO KIT
Court

Court of Appeal
Case number

CACV138/2008

Refused to certify under section 32; held that while judicial review challenging a refusal to grant a permanent stay is not invariably impermissible, satellite collateral challenges in criminal cases must be confined to highly exceptional cases; applied the arguability test and declined to adopt a higher 'clearly wrong' threshold; questions about when deliberate LPP breaches amount to an affront to public conscience and extension of stays to co-accused are fact-sensitive and unsuitable for certification.