Hong Kong Case Law: Decisions & Judgments

Topic

Statutory defences

Legal area

Court

28 Apr 2022

HKSAR v. REESE, ROBERT MILES DAVID

Citation

[2022] HKCA 529
Court

Court of Appeal
Case number

CACC37/2022

The application for bail pending appeal was refused because the applicant's provisional grounds of appeal did not show a strong likelihood of success or a reasonably arguable appeal that would justify the exceptional remedy; the judge's detailed findings on credibility, admissions, search lawfulness, chain of evidence and classification of the material were persuasive and the sentence was within the appropriate range after allowance for delay.
14 May 2020

香港特別行政區訴梁根仔

Citation

[2020] HKCA 315
Court

Court of Appeal
Case number

CACC69/2019

The trial judge correctly applied the law by addressing both the persuasive and evidential burdens; the appellant, as experienced skipper with responsibility to inspect the vessel, failed to demonstrate he had made reasonable efforts or honestly and reasonably believed the prohibited persons/goods were absent, and the prosecution proved beyond reasonable doubt that reasonable efforts would have revealed them and that the vessel was in a state evidencing an attempt to export; accordingly leave to appeal against conviction and sentence is refused and the original sentence of 64 months is upheld.
12 Sept 2018

香港特別行政區訴土力資源有限公司

Citation

[2018] HKCFI 2078
Court

Court of First Instance
Case number

HCMA5/2017

The evidence established that the appellant failed to take adequate safety measures at the excavation and failed to prove on the balance of probabilities that it had taken all reasonable steps or held an honest and reasonable belief that the statutory requirements were met; accordingly the convictions under the Construction Sites (Safety) Regulations were upheld and the appeal dismissed.
18 Jan 2018

HKSAR v. BULLEN CHRISTIAN ANTHONY

Citation

[2018] HKCFI 28
Court

Court of First Instance
Case number

HCMA50/2017

The application for a certificate was refused because the law on costs is settled, the discretionary exercise depends on the specific facts and the defendant's conduct can be considered, and the case did not raise any point of law of great and general importance warranting a certificate to the Court of Final Appeal.
5 Apr 2016

HKSAR v. LEIGHTON CONTRACTORS (ASIA) LTD

Citation

HKSAR v. LEIGHTON CONTRACTORS (ASIA) LTD
Court

Court of First Instance
Case number

HCMA508/2015

On rehearing the court found beyond reasonable doubt that the appellant, as proprietor and contractor responsible, failed to provide and maintain a safe system of work, adequate instruction and supervision, and a suitable lower working platform; the statutory and common law defences were not established; the magistrate's conduct and assessment of expert and witness evidence were proper and not plainly wrong; the convictions were upheld and the appeal dismissed.
29 Jan 2015

香港特別行政區訴博建(香港)有限公司

Citation

香港特別行政區訴博建(香港)有限公司
Court

Court of First Instance
Case number

HCMA345/2014

The court held the trial judge applied an excessively strict standard to training and supervision and unfairly expanded the prosecution case; on the available evidence the appellant had proved it had taken all reasonable and practicable steps under reg 38H(1)(c) to ensure provided safety belts were properly used, and the conviction could not stand; common law defences may coexist with the statutory defence and the trial judge should have afforded parties opportunity to address any intended departure from the pleaded focus.
24 Oct 2014

香港特別行政區訴香港寶嘉建築有限公司

Citation

香港特別行政區訴香港寶嘉建築有限公司
Court

Court of First Instance
Case number

HCMA238/2014

The High Court upheld the trial judge's findings of fact that six excavators were operating and that the appellant failed to establish either statutory or common law defences because its supervisory arrangements were insufficient; accordingly the conviction and the HK$80,000 fine were affirmed as not manifestly excessive given the appellant's repeated offences and the need for deterrence.
27 Jan 2011

TUNG LAI LAM v. ORIENTAL PRESS GROUP LTD AND ANOTHER

Citation

TUNG LAI LAM v. ORIENTAL PRESS GROUP LTD AND ANOTHER
Court

District Court
Case number

DCEO5/2009

On an objective assessment of the article as a whole, read in its satirical column style and against the contemporaneous news context, an ordinary reasonable reader would understand it as criticism of the Hospital Authority and its chief executive rather than an incitement to hatred, serious contempt or severe ridicule of persons with mental illness; therefore the s.46 threshold for disability vilification was not met and the claim fails; additionally there was no evidence the parent company participated in the publication so it was not liable.
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.
25 Jan 2006

HKSAR v. HERBONNET, JUSTIN YVES

Citation

HKSAR v. HERBONNET, JUSTIN YVES
Court

Court of First Instance
Case number

HCMA1153/2005

For an offence under s3(3) the prosecution must prove that the accused controlled and knew of the existence of the prohibited material; it need not prove beyond reasonable doubt that the accused knew the broad nature of the material as child pornography because the statute omits 'knowingly' and provides specific defences in s4(3); where overwhelming inferential evidence of control and knowledge exists conviction is proper. The appellant's interview was admissible and voluntary. The conviction is upheld as to 376 files.