Author Archives: admin

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.

高等法院擱置仲裁裁決的強制執行令。原訟庭法官陳美蘭於判決書中考慮 "可供選擇/不完整仲裁條款" 是否有效。

答辯人 (借款人) 與申請人 (一所持牌的放債機構) 簽訂了一份借貸協議。雙方進一步簽署了一份補充借貸協議，其中包括一條條款: "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" ("該條款")。申請人最終開展仲裁程序，答辯人未有參與該仲裁。仲裁員最終在未有舉行任何聆訊的情況下頒下了申請人勝訴的仲裁裁決。申請人其後單方面向法庭申請強制執行仲裁裁決的強制執行令。

陳美蘭法官認為，縱使Tommy CP Sze & Co v Li & Fung (Trading) Ltd [2003] 1 HKC 418 (原訟庭法官馬道立，終於法院首席法官馬道立當時的官階) 及 Kinli Civil Engineering Ltd v Geotech Engineering Ltd [2021] 6 HKC 524 (原訟庭法官陳美蘭) 裁定了 "一條沒有強迫雙方有爭議時須透過仲裁來解決的條款不構成仲裁條款"，法庭認為該條款屬於有效的仲裁條款。雖然該條款不像其他案例中含有 "可/可以" 等字眼，法庭不認為這有任何分別。法庭採納了支持仲裁的的取態和考慮雙方簽訂合約時的客觀意圖，法庭裁定該條款是有效的。

然而，法庭相信答辯人沒有適當期會陳述其立場。法庭接納答辯人的陳詞，認為仲裁通知書沒有傳送到答辯人在補充借貸協議上的電郵地址。法庭重新，縱使法庭會採納支持仲裁的取態，法庭只會在仲裁裁決及仲裁過程正當和公平的情況下，才會承認和執行仲裁裁決: [28]。法庭不能對於仲裁通知書送達過程有誤這情況視而不見。最終，法庭撤銷強制執行令，並命令申請人以彌償基準向答辯人支付訟費。

蘇信恩大律師 (英國特許仲裁司資深會員) 與 何睿銘大律師 (英國特許仲裁司會員) 共同代表答辯人。案件的判案書載於: 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. 

暫委裁判官陳曉明裁定一名中學老師猥褻侵犯控罪無須答辯及普通襲擊控罪僅得表面證據。

控方案情指被告在聖誕假期邀請一名女性學生到他家中。當二人準備離開時，被告將頭挨向投訴人。投訴人意會被告打算親吻她的面頰，於是將被告推開。

被告被控普通襲擊，並於一名裁判官席前受審(“裁判官甲”)。正當投訴人開始作供，裁判官甲向控方表示 (1) 他認為正確的控罪應為普通襲擊；及 (2) 屏蔽投訴人的屏幕應該同時遮蔽被告及公眾。在作出以上觀察後，裁判官甲認為自己已經進入了格鬥場，並自行避席 ("第一次審訊")。

案件其後排期在暫委裁判官陳曉明席前審訊，法庭拒絕控方申請將屏蔽投訴人的屏幕屏蔽被告。法庭認為控方缺乏基礎作出申請 ("屏幕申請")。法庭認為被告針對猥褻侵犯控罪無須大便，因案中沒有證據證明被告有任何性或猥褻的意圖，牽涉的行為也非本質上猥褻。在考慮了被告與投訴人間的Instagram對話後，法庭裁定投訴人顯然作供時沒有說出事實的全部。再者，投訴人作供時也承認自己可能向被告發放了 "錯誤訊息"，認為兩人可發展進一步的關係。顧及了所有證據，法庭裁定針對被高的普通襲擊控罪僅得表面證據，並裁定他罪名不成立。

暫委裁判官認同辯方的觀察，指控方不應該作出 "屏幕申請"，也不應該將控罪更改為猥褻侵犯。考慮了所有情況後，法庭判令控方向辯方支付 (i) 因擱置第一次審訊所衍生的訟費；及 (2) 辯方反對 "屏幕申請" 的訟費。

蘇信恩大律師在第一次審訊及其後的審訊中，以獨任大律師身份代表被告。