Hong Kong Case Law: Decisions & Judgments

Topic

Reasonable diligence defence

Legal area

Court

30 Mar 2012

LEE TO NEI v. HKSAR

Citation

LEE TO NEI v. HKSAR
Court

Court of Final Appeal
Case number

FACC5/2011

Section 26(4) of the Trade Descriptions Ordinance expressly imposes a reverse persuasive burden and thus derogates from the presumption of innocence; however, to satisfy constitutional protections it must be read down to impose only an evidential burden on the accused while the persuasive burden remains on the prosecution; applying that read-down, the Court quashed the conviction in FACC No 5 (Lee) and dismissed the appeal in FACC No 7 (Lau).
24 Dec 2009

HKSAR v. TSUI SIN YEE

Citation

HKSAR v. TSUI SIN YEE
Court

Court of First Instance
Case number

HCMA409/2009

The appeal is dismissed because the magistrate rightly applied an objective reasonable diligence standard and did not impose an unduly onerous test, the appellant was found not credible and reasonable enquiries would have revealed the forgeries, the burden and standard of proof were correctly applied (prosecution retained burden on charge 3), there was no unfair breach of Browne v Dunn, and the fresh evidence was insufficient to undermine the convictions.
25 Feb 2009

HKSAR v. TSUI SUN WAH

Citation

HKSAR v. TSUI SUN WAH
Court

Court of First Instance
Case number

HCMA613/2008

The appellant failed to prove he could not with reasonable diligence have known the cargo was unmanifested because he absented himself during part of the loading such that he could have discovered the discrepant cartons; reliance on prior dealings and the manifest was insufficient; appeal dismissed.
25 Jan 2008

HKSAR v. T.S. LINES LTD

Citation

HKSAR v. T.S. LINES LTD
Court

Court of First Instance
Case number

HCMA898/2006

Applying the Court of Appeal's reasoning in the Kong Hing Appeal, the statutory defence under s.12(2)(a) succeeded for the shipping agent because the appellant had no knowledge or suspicion and could not, with reasonable diligence, have discovered the false trade description; the magistrate erred in denying the defence and the conviction must be set aside.
7 Dec 2007

HKSAR v. KONG HING AGENCY LTD

Citation

HKSAR v. KONG HING AGENCY LTD
Court

Court of First Instance
Case number

HCMA144/2006

The Court held the reasonable diligence defence was available to the Appellant shipping agent and on the facts there were no indications that would reasonably have put the Appellant on inquiry; shipping agents do not as a matter of ordinary duty inspect or break seals on containerised cargo and therefore the Appellant satisfied all three limbs of s12(2) and the conviction was set aside.
7 Sept 2001

HKSAR v. MOK YU MING AND OTHERS

Citation

HKSAR v. MOK YU MING AND OTHERS
Court

Court of First Instance
Case number

HCMA1079/2000

Given the licence conditions and evidence the massage rooms were common parts of the licensed premises and thus a "public place" under s117; the licencee failed to establish the statutory defence of reasonable supervision and reasonable diligence; the magistrate's factual findings were supported by evidence and did not amount to material irregularity, so convictions are upheld.
27 Feb 1998

HKSAR v. KWONG CHEUK HIM

Citation

HKSAR v. KWONG CHEUK HIM
Court

Court of First Instance
Case number

HCMA801/1997

Appeal allowed because the Magistrate erred in law and fact by failing to determine whether the goods were vehicles or parts, by misapplying authority regarding intent, by imposing an incorrect and excessive 'utmost diligence' standard instead of the correct 'reasonable diligence' standard, and by failing to properly assess the reliability of the key witness; those errors meant the convictions were not correctly founded.

Hong Kong Case Law

LEE TO NEI v. HKSAR

HKSAR v. TSUI SIN YEE

HKSAR v. TSUI SUN WAH

HKSAR v. T.S. LINES LTD

HKSAR v. KONG HING AGENCY LTD

HKSAR v. MOK YU MING AND OTHERS

HKSAR v. KWONG CHEUK HIM