Hong Kong Case Law: Decisions & Judgments

Topic

Reasonable diligence

Legal area

Court

1 Aug 2025

HKSAR v. LEUNG CHUNG MAN AND ANOTHER

Citation

[2025] HKCA 722
Court

Court of Appeal
Case number

CACC105/2023

Section 37DA(2) of the Immigration Ordinance falls within the fourth Kulemesin alternative: its conjunctive terms impose an objective element but the subsection should be read as imposing merely an evidential burden on the accused to raise the defence, leaving the prosecution with the persuasive burden; the trial judge failed to properly consider relevant evidence bearing on that statutory defence for both appellants, rendering the convictions unsafe, and therefore the appeals are allowed and convictions quashed.
26 Feb 2025

SUN TIAN GANG AND ANOTHER v. CHANGCHUN HIGH & NEW TECHNOLOGY INDUSTRIES DEVELOPMENT PARENT COMPANY AND OTHERS

Citation

[2025] HKCA 188
Court

Court of Appeal
Case number

CACV476/2022

The Court of Appeal held that plaintiffs were entitled to rely on section 26(3) and that the trial judge permissibly, as a matter of case management, assumed commission of breaches of duty for the TPI and properly decided elements (ii) and (iii) on that basis; the nominee-sale allegation fell within the scope of the preliminary issues and the judge’s factual findings that the nominee aspect was deliberately concealed (not reasonably discoverable) were sustainable; accordingly the appeals against those findings were dismissed and the plaintiffs’ cross-appeals were dismissed where the judge’s f…
26 Feb 2025

SUN TIAN GANG AND ANOTHER v. CHANGCHUN HIGH & NEW TECHNOLOGY INDUSTRIES DEVELOPMENT PARENT COMPANY AND OTHERS

Citation

[2025] HKCA 188
Court

Court of Appeal
Case number

CACV475/2022

The Court held that plaintiffs were entitled to rely on section 26(3) and that, as a matter of case management, a trial judge may assume commission of a breach of duty for the purposes of a TPI and determine elements (ii) and (iii) of s26(3) (deliberateness and objective un‑discoverability) without finally determining liability; on the facts the judge properly found deliberate concealment as to the nominee nature of the CG sale but did not err on discoverability or on the reasonable diligence test. Appeals and cross‑appeals were dismissed with costs directions as set out.
12 Dec 2024

WONG CHAK WING AND ANOTHER v. CAMELO INVESTMENT LTD AND OTHERS

Citation

[2024] HKCA 1155
Court

Court of Appeal
Case number

CACV32/2022

The Court dismissed the application because the plaintiff failed the first Ladd v Marshall condition: the fresh documents existed before trial and the plaintiff failed to demonstrate that they could not, with reasonable diligence, have been obtained for trial. Alleged misconduct of the former solicitors does not constitute a special ground to satisfy the reasonable diligence test and cannot, without further satisfactory explanation, justify admitting the evidence. The Court declined to exercise any residual discretion to admit the evidence. The application was dismissed with costs fixed at HK…
9 Nov 2022

SUN TIAN GANG v. CHANGCHUN HIGH & NEW TECHNOLOGY INDUSTRIES DEVELOPMENT PARENT CO AND OTHERS

Citation

[2022] HKCFI 3348
Court

Court of First Instance
Case number

HCA179/2015

The court allowed re‑amendment and joinder of GH insofar as the pleadings alleged a nominee (self‑dealing) sale because, on the assumed breach of duty, the breaches were deliberate and objectively unlikely to have been discovered for some time due to Sun’s prolonged detention and house arrest; s.26(3) applies as an alternative means to establish deliberate concealment and the evidence established deliberate concealment of the nominee nature of the CG Transaction but did not establish discoverability of the sale price or the NXG repayment issue prior to 6 March 2012.
12 Dec 2019

HKSAR v. CEBOLLA LTD

Citation

[2019] HKCFI 2823
Court

Court of First Instance
Case number

HCMA79/2019

The appellant failed to prove on the balance of probabilities that it did not know and could not with reasonable diligence have ascertained the driver's identity under s63(5) RTO; the enquiries made were minimal and insufficient, company lax record-keeping cannot found the statutory defence, therefore the conviction and fine were upheld and the appeal dismissed.
30 Nov 2017

ANGELA YANG v. AXA WEALTH MANAGEMENT (HK) LTD AND OTHERS

Citation

ANGELA YANG v. AXA WEALTH MANAGEMENT (HK) LTD AND OTHERS
Court

Court of First Instance
Case number

HCA2016/2014

Applying the objective s26(1) test while taking the plaintiff's personal characteristics into account, the court found that the policy documents, illustrative surrender values, account summaries, welcome calls, demand notices and encashment confirmations would have put a reasonable person in the plaintiff's position on inquiry well before October 2008; there was no proven deliberate concealment by defendants to postpone limitation, therefore the claims were time-barred and must be dismissed.
28 Oct 2014

JOYBASE CORPORATION LTD v. LI KAI FAI

Citation

JOYBASE CORPORATION LTD v. LI KAI FAI
Court

Court of Appeal
Case number

CACV186/2013

The application to adduce fresh evidence was dismissed because the appellant failed the first Ladd v Marshall condition: both sets of photographs were in the appellant's possession before trial and no satisfactory explanation was given for their non-production; consequently the court did not need to consider the remaining Ladd conditions and awarded indemnity costs to the respondent due to the unmeritorious and belated application.
5 Jan 2011

HKSAR v. LAU HOK TUNG AND OTHERS

Citation

HKSAR v. LAU HOK TUNG AND OTHERS
Court

Court of First Instance
Case number

HCMA500/2010

Section 26(4) imposes a persuasive burden on the accused but that reverse burden is rational and proportionate in the context of section 9(2) offences; the magistrate correctly applied the burden and standard of proof and correctly held the appellants failed to establish the statutory defence on the balance of probabilities; convictions and sentence are upheld.
3 Apr 2009

HKSAR v. KHAN IJAZ AHMED

Citation

HKSAR v. KHAN IJAZ AHMED
Court

Court of First Instance
Case number

HCMA808/2008

Given the objective test of reasonable diligence and the factual matrix (appellant acting as a favour/shipping intermediary for a known supplier, limited inspection of goods, plausible reasons for rapid shipment and lack of customary certificates), the appellate court concluded that the appellant could not, with reasonable diligence, have discovered the forged trade marks and therefore proved the defence under s.12(2)(a); conviction was unsafe and was set aside.