Hong Kong Case Law: Decisions & Judgments

Topic

Remedial interpretation

Legal area

Court

24 Oct 2023

NG HON LAM EDGAR v. SECRETARY FOR JUSTICE

Citation

[2023] HKCA 1224
Court

Court of Appeal
Case number

CACV558/2020

The Court of Appeal (Cheung JA, Yuen JA, Au JA) upheld the finding that the IEO and IPO definitions excluding spouses of foreign same-sex marriages effect differential treatment on the prohibited ground of sexual orientation; same-sex marriages lawfully performed abroad are relevantly comparable and the exclusion is not rationally connected to the legitimate aims advanced by the Government; the differential treatment is unjustified and unlawful discrimination, so the appeal is dismissed and the lower court order stands (including remedial interpretation and declaratory relief).
24 Jun 2022

香港特別行政區訴黃超群及另四人

Citation

[2022] HKCFI 1887
Court

Court of First Instance
Case number

HCMA274/2021

The court held that s.19(3) imposes only an evidential burden on the licence holder (not a persuasive burden); the trial judge erred by relying on inadmissible hearsay to discredit D10; on re‑examination D10 had discharged the evidential burden and the prosecution failed to prove beyond reasonable doubt that the statutory defence did not apply, so D10's conviction was quashed.
12 Mar 2021

HKSAR v. CHAN LOK MAN, NORMAN

Citation

[2021] HKDC 240
Court

District Court
Case number

DCCC763/2020

The Court held that the remedial interpretation given by the courts (notably the Court of Appeal in Yeung Ho Nam) is binding and has rendered s118C Basic Law- and BOR-compliant by reading down the maximum sentence to 5 years for buggery with a boy aged 13–15 and life only where the victim is under 13; accordingly each charged offence was not punishable by life, the magistrate validly transferred the charges to the District Court, and the prosecution's application to transfer to the Court of First Instance was unnecessary and refused as not in the interests of justice.
5 Jun 2020

HKSAR v. LAW CHUN YIN

Citation

[2020] HKCA 466
Court

Court of Appeal
Case number

CACC216/2019

Leave to appeal against sentence out of time is granted because it is reasonably arguable the applicant should benefit from the Court of Appeal's remedial interpretation of section 118C and that the sentencing 'anchor' for the buggery offence may have been too heavy; the Court of Appeal should reassess the overall sentence in light of that and the identified aggravating factors.
2 Dec 2019

HKSAR v. YEUNG HO NAM

Citation

[2019] HKCA 1285
Court

Court of Appeal
Case number

CACC361/2018

The Court awarded costs for all four claimed items because the expenses were properly incurred in the sentence appeal: the bail application, though refused, was not frivolous, was appropriate in the circumstances, prompted an expedited hearing that led to correction of sentence and immediate release, and there was no conduct meriting denial of costs; accordingly respondent must pay appellant's costs with a certificate for two counsel.
9 Oct 2019

HKSAR v. YU LIK WAI WILLIAM AND ANOTHER

Citation

[2019] HKCA 1093
Court

Court of Appeal
Case number

CACC237/2015

The court held that s.61(4) of the ICSO is capable of a remedial interpretation: the provision must be read to require that any information obtained under a relevant authorization and continuing to be available to the department be provided to the prosecution so that the prosecution may consider whether it meets the statutory disclosure test, and, if so, disclose it to the judge in an ex parte hearing. Reading-in in this manner is a permissible remedial interpretation that cures the constitutional defect without effecting an unlawful legislative amendment, and the prosecutor can apply the sta…
25 Sept 2019

HKSAR v. YEUNG HO NAM

Citation

[2019] HKCA 384
Court

Court of Appeal
Case number

CACC361/2018

Section 118C as worded discriminated against male homosexuals and was read down by the court to align maximum penalties with section 124 (life where victim under 13; 5 years where victim aged 13–15). Sentencing for s118C must be gender-neutral and follow existing sentencing principles for underage sexual offences. On the facts (consensual liaison, victim an instigator involved in compensated dating, use of condoms, no grooming or injury, genuine remorse) the appropriate starting point was 12 months per count, reduced by one-third for plea to 8 months per count with 2 months of the second coun…
13 Sept 2019

HKSAR v. YUONG HO-CHEUNG

Citation

[2019] HKCFI 2280
Court

Court of First Instance
Case number

HCMA381/2018

Section 52(3) of the Road Traffic Ordinance requires proof of a subjective purpose by the driver that the driving was for the carriage of passengers 'for hire or reward' (a predominantly commercial purpose); there is no requirement of a direct carriage agreement between driver and passenger as an element of the offence (such an agreement is evidential only); s52(3) is not overbroad or unconstitutional on that construction; the magistrate's remedial reading and requirement that reward depend on distance were unnecessary; on the facts the Appellants were acting for commercial reward and convict…
13 Sept 2019

HKSAR v. LEE HING-LUNG GARY

Citation

[2019] HKCFI 2280
Court

Court of First Instance
Case number

HCMA390/2018

Section 52(3) RTO must be read to require proof of the defendant driver's subjective purpose to drive 'for the carriage of passengers for hire or reward' (mens rea); a direct contractual agreement between driver and passenger is not a legal requirement though it is relevant evidence; the provision is not overbroad or unconstitutional as properly construed; the magistrate's remedial interpretation imposing a distance-dependent reward requirement was rejected; on the facts the Appellants' convictions and fines were upheld and the appeals dismissed.
13 Sept 2019

HKSAR v. YIP KA-SHING

Citation

[2019] HKCFI 2280
Court

Court of First Instance
Case number

HCMA383/2018

Section 52(3) RTO is properly construed to require proof of the defendant driver's subjective purpose to drive 'for the carriage of passengers for hire or reward' (a predominantly commercial purpose); no legal requirement of a direct contractual agreement between driver and passenger nor a distance-based remedial gloss; s52(3) is not overbroad or unconstitutional as properly construed; on the facts the drivers acted with the prohibited purpose and convictions are safe and upheld.