Hong Kong Case Law: Decisions & Judgments | LexChat

Hong Kong Case Law

Remedies: certiorari and mandamus

  • 25 Nov 2008

    MA ZHU JIANG v. SECRETARY FOR JUSTICE

    Citation
    MA ZHU JIANG v. SECRETARY FOR JUSTICE
    Court
    Court of First Instance
    Case number
    HCAL115/2008

    s 67A CPO requires mandatory credit for any period of custody spent in relation to the offence for which sentence is imposed, whether police custody under s 67A(1A) or remand custody under s 67A(1), and that entitlement is not negated by separate court file numbers or omission of pre-conviction custody details from a s 86 Certificate; the Commissioner's refusal to apply that statutory credit was unlawful and subject to certiorari and mandamus.

    • Computation of sentence
    • Credit for pre-conviction custody
    • Effect of court certificate on administrative calculation
    • Remedies: certiorari and mandamus

  • 11 Jul 2005

    LIU PIK HAN v. HONG KONG FEDERATION OF INSURERS APPEALS TRIBUNAL AND ANOTHER

    Citation
    LIU PIK HAN v. HONG KONG FEDERATION OF INSURERS APPEALS TRIBUNAL AND ANOTHER
    Court
    Court of First Instance
    Case number
    HCAL50/2005

    The court held that Clause 39 of the Code and the statutory scheme properly construed impliedly conferred investigative powers on the Board, but the Board and the Appeals Tribunal breached the Applicant's right to a fair hearing under Article 10 by disposing of serious, credibility-dependent disciplinary allegations without an oral hearing and without adequate reasons; accordingly their decisions were quashed and the matter remitted to a differently constituted Board for fresh consideration with an oral hearing, and a mandamus directed return for that purpose.

    • Natural justice and fair hearing
    • Ultra vires and implied powers
    • Remedies: certiorari and mandamus
    • Adequacy of reasons
    • Disciplinary sanctions and proportionality

  • 1 Sept 2004

    CHAN TAK HAU RAYMOND v. THE CHINESE MEDICINE PRACTITIONERS BOARD OF THE CHINESE MEDICINE COUNCIL OF HONG KONG

    Citation
    CHAN TAK HAU RAYMOND v. THE CHINESE MEDICINE PRACTITIONERS BOARD OF THE CHINESE MEDICINE COUNCIL OF HONG KONG
    Court
    Court of Appeal
    Case number
    CACV384/2003

    Appeals of Chan Tak Kuen (CACV 383) and Chan Tak Kui Christopher (CACV 385) were dismissed because the Board was entitled to conclude the applicants did not provide sufficient objective evidence of continuous practice in Hong Kong or possession of an acceptable qualification and thus properly required them to pass the licensing examination; the appeal of Chan Tak Hau Raymond (CACV 384) was allowed because the Board's reasons were directed at the wrong statutory category and appeared pro forma, justifying quashing the decision and ordering reconsideration (certiorari and mandamus).

    • Registration under chinese medicine ordinance
    • Grandfathering provisions
    • Assessment of qualifications
    • Procedural fairness
    • Reasons for decision
    • Remedies: certiorari and mandamus

  • 16 Nov 1998

    THE SECRETARY FOR JUSTICE v. CHAN HUNG YIP AND OTHERS

    Citation
    THE SECRETARY FOR JUSTICE v. CHAN HUNG YIP AND OTHERS
    Court
    Court of First Instance
    Case number
    HCAL85/1998

    In a trial before a judge alone, prosecutorial comment on an accused's failure to give evidence does not automatically mandate a retrial; where the judge expressly states she can disregard the comment and there is no real risk of injustice or appearance of injustice, the correct remedy is to quash the order for retrial and, where appropriate, order the judge to continue hearing the case rather than require a new trial.

    • Right to silence
    • Comment on accused's failure to give evidence
    • Statutory interpretation of mandatory provisions
    • Judge-alone trials
    • Remedies: certiorari and mandamus
    • Retrial

  • 13 May 1997

    MOC A PAO and Others v. THE DIRECTOR OF IMMIGRATION and Another

    Citation
    MOC A PAO and Others v. THE DIRECTOR OF IMMIGRATION and Another
    Court
    Court of First Instance
    Case number
    HCMP16/1997

    The court held that delay would not bar review given public interest and camp access issues; for five applicants the Board's conclusion that time and improved US‑Vietnam relations reduced the real risk of persecution was within the range of reasonable inferences from available country material and therefore their challenges were dismissed; however the Board irrationally disbelieved material aspects of A6's claim and failed to address whether his claimed links and wartime activities gave rise to a well‑founded fear, so that A6's Board decision was quashed and remitted for reconsideration by th…

    • Refugee status determination
    • Delay and extension of time
    • Country of origin information
    • Standard of review for specialist tribunals
    • Failure to put case to applicant
    • Remedies: certiorari and mandamus

  • 13 Jun 1985

    QUEBOSTOCK LTD v. THE BUILDING AUTHORITY AND OTHERS

    Citation
    QUEBOSTOCK LTD v. THE BUILDING AUTHORITY AND OTHERS
    Court
    Court of First Instance
    Case number
    HCMP1410/1985

    On a contextual construction of Part II (notably sections 23,24 and 24A read together) the court concluded that s.24(1) does not confer a discretion on the Building Authority because it lacks qualifying language such as "in the opinion of"; consequently the Appeal Tribunal under s.43(1) had no jurisdiction to hear the applicant's appeal and the applicant's motion for certiorari, declaration and mandamus was dismissed. The court further held that time specifications in orders in this context are not discretionary where the statutory text and related provisions indicate mandatory prescription.

    • Interpretation of "may" vs "shall"
    • Discretionary vs mandatory statutory powers
    • Jurisdiction of tribunal under statutory appeal provision s.43(1)
    • Construction of buildings ordinance sections 23,24,24a,26
    • Remedies: certiorari and mandamus