Hong Kong Case Law: Decisions & Judgments

Topic

Strict/absolute liability

Legal area

Court

22 Feb 2013

KULEMESIN YURIY AND ANOTHER v. HKSAR

Citation

KULEMESIN YURIY AND ANOTHER v. HKSAR
Court

Court of Final Appeal
Case number

FACC7/2012

Section 72 of the Shipping and Port Control Ordinance is not to be treated as imposing absolute liability as regards the consequence of endangerment; the presumption of mens rea applies and, on proper construction for a serious indictable offence, displacement of full mens rea is to be replaced by the second Hin Lin Yee alternative: the prosecution must prove conduct, causation and endangerment; if the defendant adduces evidence which, if unrebutted, raises a reasonable doubt that he honestly and reasonably believed his conduct would not cause danger, the defendant must be acquitted unless th…
22 Feb 2013

KULEMESIN YURIY AND ANOTHER v. HKSAR

Citation

KULEMESIN YURIY AND ANOTHER v. HKSAR
Court

Court of Final Appeal
Case number

FACC6/2012

Section 72 of the SPCO is not an absolute‑liability offence as to the endangerment consequence; the presumption of mens rea applies and if displaced the appropriate replacement is the second alternative: the prosecution must prove conduct, causation and actual endangerment beyond reasonable doubt and, if defendant adduces evidence that, if unrebutted, raises a reasonable doubt that he honestly believed on reasonable grounds his conduct would not cause danger (or that a reasonable excuse existed under the second limb), the prosecution must disprove beyond reasonable doubt either absence of tha…
29 Jun 2012

香港特別行政區訴周瑞麟

Citation

香港特別行政區訴周瑞麟
Court

Court of First Instance
Case number

HCMA701/2011

The conviction was quashed because the trial judge failed to address and decide the essential element that the appellant was the person who stored the drugs (actus reus), wrongly treated knowledge as an affirmative defence rather than an element the prosecution must prove, and therefore the conviction was unsafe.
26 Mar 2010

HIN LIN YEE AND ANOTHER v. HKSAR

Citation

HIN LIN YEE AND ANOTHER v. HKSAR
Court

Court of Final Appeal
Case number

FACC7/2009

The presumption of mens rea is displaced for s54(1) PHMSO but the statute, when read with ss70 and 71, confines available defences to those statutory defences; the common law intermediate defence of honest and reasonable belief does not apply to s54(1) because ss70 and 71, properly construed, overlap with and exclude that common law defence. On the facts the appellants cannot establish the statutory defences and the 1st appellant also cannot satisfy reg 36(1C) PPR; therefore convictions are to be affirmed.
21 Sept 2005

HKSAR v. TRI-VIEW LTD AND ANOTHER

Citation

HKSAR v. TRI-VIEW LTD AND ANOTHER
Court

Court of First Instance
Case number

HCMA511/2005

The Court held that Parkview falls within the statutory definition of 'hotel' in Cap.349 because s.2(2)(b) expressly includes persons presenting themselves with prior booking; the statutory definition displaces any narrower common law meaning for the purpose of the Ordinance; the undercover bookings and subsequent check‑ins established the requisite holding out and satisfied the elements of the s.5 offence; appeal dismissed.
29 Dec 1993

R. v. TSUI TAT KUEN

Citation

R. v. TSUI TAT KUEN
Court

Court of First Instance
Case number

HCMA780/1993

Convictions quashed because the agreed evidence and exhibits did not establish beyond reasonable doubt that the appellant knew the documents were false or that he must have known the true contents of the goods; it would be unjust to impose absolute liability and imprisonment on him in these circumstances when the agreed exporter and director were acquitted; ambiguous and improperly framed agreed statements lack sufficient evidential value.
2 Nov 1990

THE QUEEN v. NG YUET CHEONG

Citation

THE QUEEN v. NG YUET CHEONG
Court

Court of First Instance
Case number

HCMA1352/1990

Magistrate erred in principle by imputing dishonesty without supporting facts and by treating immediate custody as mandatory and adopting an inappropriate starting point; for an absolute liability offence involving a first offender who cooperated and where imprisonment is a last resort, the appropriate sentence was reduced to permit immediate release.
14 Dec 1981

WONG KWONG-WAH v. THE QUEEN

Citation

WONG KWONG-WAH v. THE QUEEN
Court

Court of Appeal
Case number

CACC722/1981

Majority (Li J.A. and Silke J.A.) held s.23 of Cap. 138 does not create an absolute offence; mens rea (or at least the ability to rebut possession by showing no guilty knowledge) is required and because the Crown conceded the appellant lacked guilty knowledge the conviction could not stand; conviction quashed and sentence set aside.
17 Apr 1968

PETER KLAUSER AND ANOTHER v. THE QUEEN

Citation

PETER KLAUSER AND ANOTHER v. THE QUEEN
Court

Court of Appeal
Case number

CACC74/1968

The definition of 'import' in section 2 of the Importation and Exportation Ordinance ('to bring or cause to be brought into the Colony by land, air or water') includes goods brought into the Colony in transit; therefore transit passengers carrying undeclared gold committed the offence under the Importation of Gold (Prohibition) Regulations and the appeals against conviction and sentence must be dismissed.