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Magistrate Daniel Tang awarded the Defendant costs for, inter alia, arguing the Magistracy has no jurisdiction due to time bar, and also costs for the trial proper, after finding a hard-of-hearing youth not guilty of assaulting a police officer.

The Defendant, then 19 years old with profound and severe hearing loss in his left and right ears respectively, was charged with assaulting a police officer. The prosecution alleged that the Defendant confessed to a police constable after being arrested by saying “I was impulsive and hit [the] police [officer], ah sir [I am] sorry, please give me a chance” (我一時衝動先會打警察，呀sir 對唔住，比次機會我). The alleged oral confession was later recorded in writing. After trial, the court found the Defendant only had a bare case to answer in the special issue proceeding (viz a proceeding determining the admissibility of confessions) and ruled the alleged oral and written confession inadmissible. After ruling out the confessions, the Magistrate further found that the Defendant only had a bare case to answer in the general issue, and subsequently acquitted him.

Prior to the commencement of the trial, the Defendant argued that the Magistracy has no jurisdiction to hear the case as the charge sheet was filed in the Magistracy almost 8 months after the Appeal Committee of the Court of Final Appeal dismissed the Defendant’s application for leave to appeal against the retrial order (“the Time Bar Application”). s 26 of the Magistrates Ordinance (Cap 227) mandates all complaints (other than an indictable offence) must be within 6 months after the matter of such complaint arose. It was argued on the Defendant’s behalf that a retrial is a fortiori and must take place as soon as practicable and, in any event, not more than the time limit applicable to a trial at first instance, otherwise a retrial of a summary offence could take place indefinitely. In other jurisdictions, namely, the England and Wales, the indictment of the retrial must be filed within 2 months from the date of the order for retrial: s 8 Criminal Appeal Act 1968. Magistrate Edward Wong refused the Defendant’s application and held that the case was not time barred as s 26 of the Magistrates Ordinance only governs trial at first instance. The case was then fixed before Magistrate Daniel Tang for a 9-day trial.

In awarding the Defendant’s costs, Magistrate Daniel Tang considered that it was not unreasonable for the Defendant to make the Time Bar Application. The court also awarded costs of the trial to the Defendant.

Simon So represented the defendant in the Time Bar Application and the re-trial as sole advocate. Simon had represented the Defendant in his appeal against conviction before Barnes J: [2021] HKCFI 2893; and his application for leave to appeal against the retrial order before the Appeal Committee (Ribeiro and Lam PJJ, Bokhary NPJ): FAMC 30/2021, both as sole advocate.

The High Court set aside an enforcement order granting leave to the Applicant to enforce an arbitral award. In the Court’s judgment, Mimmie Chan J took the opportunity to review whether an “Optional/Inchoate Arbitration Clause” is valid.

The Respondent (being the borrower) entered into a loan agreement with the Applicant (a licensed money lender). The parties further entered into a supplemental loan agreement which contained a clause stating that “Any dispute…arising out of…the Loan Agreement shall…at the option of the Claimant (or the Plaintiff, as may be applicable), be referred to and finally resolved by arbitration…or by court proceedings in Hong Kong courts” (凡因借款合約…所引起的…爭議…，均應由申請人(或原告人，視何者適用而定)選擇提交…仲裁，或提交香港法庭進行法院程序，最終解決) (“𝐭𝐡𝐞 𝐂𝐥𝐚𝐮𝐬𝐞”). The Applicant eventually commenced arbitration which the Respondent did not take part. The arbitrator rendered an award without holding a hearing which he found in favour of the Applicant (“𝐭𝐡𝐞 𝐀𝐰𝐚𝐫𝐝”). The Applicant sought, on an ex parte basis, for enforcement of the Award.

Mimmie Chan J held that despite 𝑻𝒐𝒎𝒎𝒚 𝑪𝑷 𝑺𝒛𝒆 & 𝑪𝒐 𝒗 𝑳𝒊 & 𝑭𝒖𝒏𝒈 (𝑻𝒓𝒂𝒅𝒊𝒏𝒈) 𝑳𝒕𝒅 [2003] 1 HKC 418 (Ma J as Ma CJ then was) and 𝑲𝒊𝒏𝒍𝒊 𝑪𝒊𝒗𝒊𝒍 𝑬𝒏𝒈𝒊𝒏𝒆𝒆𝒓𝒊𝒏𝒈 𝑳𝒕𝒅 𝒗 𝑮𝒆𝒐𝒕𝒆𝒄𝒉 𝑬𝒏𝒈𝒊𝒏𝒆𝒆𝒓𝒊𝒏𝒈 𝑳𝒕𝒅 [2021] 6 HKC 524 (Mimmie Chan J) which held that “an agreement which does not compel parties to have disputes or differences resolved by agreement is not an arbitration agreement”, the Court was of the view that the Clause was a valid arbitration clause. Although the Clause was unlike the line of cases which adopts language such as “may” or “can”, the Court was not persuaded that this would make a difference. Adopting a pro-arbitration approach and ascertaining the objective intention of the parties at the time of entering into the contract, the Court found that a challenge against the validity of the Clause was not successful.

That said, the Court was persuaded that the Respondent was not given proper opportunity to present his case. Accepting the Respondent’s submission, the Court noted that the email address which the Notice of Arbitration was served to and the email address on the Loan Agreement was different. The Court emphasised that despite adopting a pro-arbitration approach, an arbitral award is recognized and enforced by the Court only if the award and the arbitral process leading to the award is structurally intact and there is due and fair process: [28]. The Court cannot turn a blind eye to the irregular service of the notice of arbitration. Eventually, the Court set aside the Enforcement Order and ordered the Applicant to pay the Respondent costs on an indemnity basis.

Simon So, a fellow of CIArb (with Herman Ho, a member of CIArb) represented the Respondent. The Full Judgement was published on https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=154657&currpage=T 

Deputy Magistrate Bu Yanan found the defendant not guilty of careless driving.

The defendant was charged with careless driving. PW1’s private vehicle was parked at a parking-space near the only exit of a car park. After leaving the vehicle parked there for almost 2 days, PW1 found scratches near the rear of his vehicle. Upon viewing the CCTV footage, PW2 (a security guard) and PW3 (a police officer) found that the defendant’s vehicle drove away from the exit. PW2 said the defendant’s vehicle was “very near” PW1’s vehicle whilst PW3 said the defendant’s vehicle collided with PW1’s vehicle leading to a slight movement of the latter. PW2 used an unknown mobile phone to take two photos of the screen when the CCTV footage was playing and send the same to PW4 (the investigating officer). PW4 then printed the two photos and exhibited the same to the court. The CCTV footage was not seized. Despite objections, PW2 and PW3 were allowed to give evidence on what they saw in the CCTV footage and to exhibit the two photos.

The Magistrate found PW2’s and PW3’s evidence to be irreconcilable. As such, she acquitted the defendant.

Simon So (with Jack Hui) represented the defendant in the 3-day trial. 

District Court applied the landmark Court of Appeal decision in 𝑴𝒐𝒏𝒂𝒕 𝑰𝒏𝒗𝒆𝒔𝒕𝒎𝒆𝒏𝒕 𝑳𝒕𝒅 [2023] HKCA 479 (which found in favour of the UK Supreme Court’s approach in 𝑷𝒂𝒕𝒆𝒍 𝒗 𝑴𝒊𝒓𝒛𝒂 [2017] AC 467 instead of the “reliance” test under 𝑻𝒊𝒏𝒔𝒍𝒆𝒚 𝒗 𝑴𝒊𝒍𝒍𝒊𝒈𝒂𝒏 [1994] 1 AC 340) and entered judgement in favour of the Plaintiff.

The Plaintiff, who was an ex-girlfriend of D2, contributed to the renovation and mortgage payment of a public housing estate (“the Flat”) purchased under the “Green Form” mechanism in the name of D1, who was the paternal grandmother of D2 (“the Deceased”). By a will, the Deceased left the Flat to D2. The Plaintiff commenced the present action on the basis of, inter alia, purchase money resulting trust and unjust enrichment.

Deputy District Judge Frances Lok considered the Defendants’ version to be “unreliable”: §25(1), “entirely incredible”: §31(5), and “incoherent [and] inconsistent”: §36(1). Having considered the evidence unfolded, the Judge found that the Deceased held 28.608% of the Flat on resulting trust for the Plaintiff: §43. After giving due consideration of 𝑴𝒐𝒏𝒂𝒕 (which affirms 𝑷𝒂𝒕𝒆𝒍 𝒗 𝑴𝒊𝒓𝒛𝒂 [2017] AC 467), the Judge ruled that the Plaintiff’s unjust enrichment claim should be allowed even if the resulting trust claim fails: §85.

Simon So represented the plaintiff (assigned by the Legal Aid Department) in the 4-day trial as sole advocate. The Full Judgement was published on: https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=153871&currpage=T

The Coroner’s Court hears a death inquest of a deaf and dumb psychiatric patient who jumped-from-height approximately 18 hours after his discharge from the psychiatric ward.

The Court heard evidence from the deceased’s family, social worker of the deceased, the Case Medical Officer who treated the deceased during his admission, a psychiatrist as an independent expert, and other witnesses.

Simon So (with Herman Ho) represented the deceased’s family in the death inquest. The death inquest (initially listed with 4 days reserved) lasted for 6 days. The Coroner left three verdicts to the jury: (i) the deceased killed himself; (ii) the deceased killed himself whilst the balance of his mind was disturbed; and (iii) open verdict. The jury unanimously found that the deceased killed himself whilst the balance of his mind was disturbed. Recommendations were also given by the jury to the Hospital Authority.

Hon Anthea Pang JA granted an applicant convicted of “assisting the remaining of an unauthorized entrant” bail pending appeal (against conviction) after considering the intended grounds of appeal put forward for and on behalf of the applicant.

The applicant was convicted by HH Judge E Yip: [2023] HKDC 589 (https://lnkd.in/g9SuHNRw) and sentenced to 8 months’ imprisonment. The prosecution case was that the applicant paid for a room in a guesthouse where an unauthorized entrant (Madam Wang) stayed inside. It was not in dispute that Madam Wang was a prostitute and entered into Hong Kong unlawfully. The prosecution argued that the applicant’s payment of the rentals amounts to “assisting [Madam Wang’s] remaining” in Hong Kong. On the other hand, the applicant argued that he knew Madam Wang through an online platform and engaged her as a prostitute only. The room of the guesthouse was for sexual services between the applicant and Madam Wang only.

The Trial Judge found that the applicant failed to prove (without mentioning on what standard of proof) the statutory defence under s 37DA (2) of the Immigration Ordinance (Cap 115). 

Simon So (appearing with Jack Hui) represented the applicant. 

Magistrate Daniel Tang found the defendant had a bare case to answer in the special issue proceeding (viz a proceeding determining the admissibility of confessions) and ruled the alleged oral and written confession inadmissible. After ruling out the confessions, the Magistrate found that he had a bare case to answer and acquitted him.

The defendant, then 19 years old with profound and severe hearing loss in his left and right ears respectively, was charged with assaulting a police officer. The prosecution alleged that the defendant confessed to a police constable after being arrested by saying “I was impulsive and hit [the] police [officer], ah sir [I am] sorry, please give me a chance” (我一時衝動先會打警察，呀sir 對唔住，比次機會我). The oral confession was later recorded in writing.

Under cross-examination, the arresting officer (PW2) gave these evidence:-

(a)Despite having profound hearing loss, PW2 said he gave the defendant his mobile phone to call his mother.

(b)Despite the defendant was found to have 2 ribs fractured and 1 rib displaced, PW2 said both the defendant and the defendant’s mother did not ask for him to be admitted to a hospital.

(c)Despite the defendant’s hearing loss and the fact that PW2 knew the defendant required hearing aid, no sign language interpreter was ever arranged.

(d)Police videos captured PW2’s colleague saying that he would wish to “align the story” (對埋故仔) with the complainant first. When being put he aligned the confession in accordance with the complainant’s injury, PW2 elected to invoke his privilege against self-incrimination and remained silent.

The Magistrate was not satisfied that the prosecution had proved beyond reasonable doubt that the confessions have been obtained fairly. Regardless of the intention of PW2’s colleague, the words uttered by him that he wished to “align the story” was “disturbing” (令人不安). Further, the Magistrate agreed with the defence that the legal concept of “assault” would not be familiar to a layman. It is thus very improbable (非常不可能) that the young defendant would have used “hit” (打) to describe the act (i.e. “grab” (搶)) as complained by PW1.

Bearing in mind the police video, the Magistrate said that he could not rule out the possibility that the defendant fell onto PW1 accidentally because of the crowd rushing forward on the pavement.

The defendant was initially convicted by Magistrate Chaeng Kei-hong and sentenced to a rehabilitation centre. His conviction was overturned by Barnes J but he was ordered to be retried before another magistrate. He has been incacerated for 7 weeks prior to obtaining bail pending appeal.

Simon So represented the defendant in the re-trial as sole advocate. Simon had represented the defendant in his appeal against conviction before Barnes J: [2021] HKCFI 2893; and his application for leave to appeal against the retrial order before the Appeal Committee (Ribeiro and Lam PJJ, Bokhary NPJ): FAMC 30/2021, both as sole advocate. 

Deputy Magistrate Yvonne Chan found a male secondary school teacher no case to answer for indecent assault and bare case to answer for common assault.

The prosecution case was that the defendant invited a female student to his home during Christmas holiday. When the two were about to leave, it was said that the defendant leaned his head forward towards the complainant. The complainant, who thought the defendant was about to kiss her cheek, pushed the defendant away.

The defendant was charged with common assault and stood trial before a magistrate (“𝐭𝐡𝐞 𝐅𝐢𝐫𝐬𝐭 𝐌𝐚𝐠𝐢𝐬𝐭𝐫𝐚𝐭𝐞”). Just after the complainant started giving evidence, the First Magistrate indicated to the prosecution that (1) he opined the correct charge should be indecent assault instead of common assault; and (2) the screen protecting the complainant should shield both the defendant and the public. Having made the observations, the First Magistrate said he considered himself to have entered into the arena and recused himself (“𝐭𝐡𝐞 𝐅𝐢𝐫𝐬𝐭 𝐓𝐫𝐢𝐚𝐥”).

When the matter was set down for trial before Deputy Magistrate Yvonne Chan, the court refused the prosecution’s application to have the screen shielding the defendant as the prosecution raised no proper evidential grounds for so doing (“𝐭𝐡𝐞 𝐒𝐜𝐫𝐞𝐞𝐧 𝐀𝐩𝐩𝐥𝐢𝐜𝐚𝐭𝐢𝐨𝐧”). The Deputy Magistrate found the defendant no case to answer for indecent assault as there was no evidence suggesting the defendant having any sexual or indecent intention and the act was not inherently indecent. After viewing the Instagram messages between the complainant and the defendant, the Deputy Magistrate finds that the complainant had clearly not been telling the whole truth when giving evidence. Further, the complainant conceded that she might have sent a “wrong signal” to the defendant that they may commence a romantic relationship. Having considered all the evidence, the Deputy Magistrate found the defendant only a bare case to answer for common assault and acquitted him.

The Deputy Magistrate agreed with the defence submission that the prosecution should not have made the Screen Application and amend the charge to indecent assault in the first place. Having considered all the circumstances, the Deputy Magistrate ordered the prosecution to pay (1) the costs of the vacated First Trial and (2) the costs in resisting the Screen Application.

Simon So represented the defendant in the First Trial and the subsequent trial as sole advocate.