Hong Kong Case Law: Decisions & Judgments

Topic

Proportionality test

Legal area

Court

10 Feb 2025

香港特別行政區訴鄒幸彤

Citation

[2025] HKCFI 629
Court

Court of First Instance
Case number

HCCC155/2022

The s144 amendment to s79I is constitutionally valid because it pursues legitimate objectives of protecting national security and judicial fairness, applies equally to prosecution and defence in national security proceedings (so no unlawful discrimination), and is a proportionate and limited restriction on the discretionary mechanism for remote testimony; accordingly the court will not declare the amendment invalid and refuses the applicant's TV‑link application.
26 Nov 2024

THE HONG KONG HOUSING AUTHORITY v. LI YIK HO

Citation

[2024] HKCFA 29
Court

Court of Final Appeal
Case number

FACV3/2024

Same-sex couples lawfully married abroad are comparable to opposite-sex married couples for PRH and HOS purposes; Basic Law Articles 36 and 37 do not displace the equality protections of BL25 and BOR22 in this context; the HA failed Stages 3 and 4 of the proportionality test because it produced no empirical evidence to justify the total exclusion of same-sex married couples and the policies are disproportionate; accordingly the HA’s spousal policies as applied to same-sex married couples are unconstitutional and were correctly struck down by the courts below, and the appeals are dismissed.
26 Nov 2024

THE HONG KONG HOUSING AUTHORITY v. INFINGER, NICK

Citation

[2024] HKCFA 29
Court

Court of Final Appeal
Case number

FACV2/2024

BL36 does not immunise pre-1997 social welfare entitlements from equality scrutiny under BL25 and BOR22; same-sex couples lawfully married overseas are comparable to opposite-sex married couples for PRH and HOS allocation; the HA's spousal policies discriminated on the basis of sexual orientation and failed the proportionality analysis (stages 3 and 4) because the HA produced no empirical evidence to justify the absolute exclusion and the measures were disproportionate and unjustified, therefore the policies are unlawful and invalid.
12 Jun 2024

HKSAR v. TSIM SUM KIT, ADA

Citation

[2024] HKCFA 14
Court

Court of Final Appeal
Case number

FACC1/2024

Section 3(2) of the Homicide Ordinance does not engage or derogate from the presumption of innocence because diminished responsibility is a partial defence that only arises after the prosecution has proved the actus reus and mens rea of murder beyond reasonable doubt; alternatively, even if the presumption were engaged, the imposition of a legal burden on the accused is a proportionate and justified limitation given the practical impossibility for the prosecution to disprove the accused's mental state beyond reasonable doubt, therefore s.3(2) stands and the appeal is dismissed.
28 Mar 2024

香港特別行政區訴陳國標

Citation

[2024] HKCFI 927
Court

Court of First Instance
Case number

HCMA110/2023

The application for a certificate under s.32(2) is refused because the court is satisfied that none of the legal questions advanced are both reasonably arguable and of great and general importance: the points raised repeat prior unsuccessful arguments, are largely factual or application of settled law, and therefore do not merit certification; a costs order (HK$2,000) is justified given the repeated and unmeritorious applications and the applicant's litigation history and means.
22 Dec 2023

香港特別行政區訴陳國標

Citation

[2023] HKCFI 3343
Court

Court of First Instance
Case number

HCMA110/2023

The magistrate's factual findings were supported by direct evidence and video; reg 11(g) is validly authorised by s109 Cap 132 whose purpose is playground management and prevention of nuisance/public health risk, not to protect birds from hunger; banning feeding of birds in playgrounds is rationally connected to that legitimate aim and is proportionate under Hysan; appellant's claimed belief did not outweigh the public interest and no reasonable excuse for not wearing a mask was proved; imposition of the additional fixed fine under Schedule 2 r12 was lawful where the defence was frivolous or…
30 Aug 2023

HKSAR v. TSIM SUM-KIT, ADA

Citation

[2023] HKCA 927
Court

Court of Appeal
Case number

CACC153/2021

The legal burden imposed by section 3(2) to prove diminished responsibility does not engage the presumption of innocence in a way that invalidates the provision, and even if it did it is justified and proportionate in light of the legitimate aim; existing authorities properly govern when lies directions are required and no certificate on either point of law is warranted.
19 Oct 2022

RE AN APPLICATION BY MR TIMOTHY WYNN OWEN KC

Citation

[2022] HKCFI 3233
Court

Court of First Instance
Case number

HCMP1402/2022

The application is allowed because the issues to be tried (construction of NSL 29(4) and constitutionality of Crimes Ordinance ss 9 and 10) are of great public and jurisprudential importance and unusually difficult; Mr Owen's specialist expertise would materially assist the court; there was no prejudicial delay and local senior counsel's unavailability for the entire trial justified admission in the public interest.
26 Jan 2022

Q v. COMMISSIONER OF REGISTRATION

Citation

[2022] HKCA 172
Court

Court of Appeal
Case number

CACV183/2019

The Court held the Policy is constitutional: the full SRS requirement is rationally connected to the legitimate aim of ensuring correctness and objectivity in identity card sex entries, satisfies the stringent "no more than necessary" proportionality scrutiny and strikes a reasonable balance under BOR 14; the Policy does not amount to cruel, inhuman or degrading treatment under BOR 3 and consent would not be vitiated by the Policy; and the applicants failed to prove indirect discrimination under SDO s5(1)(b) because they did not establish a considerably smaller proportion of FtM persons could…
29 Apr 2021

KWOK CHEUK KIN AND ANOTHER v. DIRECTOR OF LANDS AND OTHERS

Citation

[2021] HKCA 590
Court

Court of Appeal
Case number

CACV234/2019

The Court granted leave on Questions 1 and 3–5 because those questions are of great general or public importance warranting consideration by the Court of Final Appeal; leave on Question 2 was refused because the double proportionality argument was not pleaded or argued in the courts below and is fact‑sensitive requiring evidence that is not before the Court of Final Appeal. Costs of the leave application were ordered in the cause.