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Court: Hong Kong Court of Final Appeal

Re-trial ordered for appellants previously convicted of conspiracy to defraud the Hong Kong Stock Exchange

HKSAR v Keen and Ors [2019] HKCFA 32

The appellants were charged and convicted on two counts of conspiracy to defraud. There were two separate particulars pertaining to each count, each involving different appellants.  The trial judge convicted all appellants on both counts and sentenced them each to over 7 years imprisonment. The Court of Appeal dismissed the appellants’ appeals.

Held: The appeals were unanimously allowed and the convictions of all appellants quashed. The particulars included different dishonest means with different alleged co-conspirators and therefore included two different conspiracies.

Furthermore, the jury was directed that in order to convict all the appellants, it would be sufficient for ‘at least’ two of the accused to be part of a conspiracy. In this way there is a risk that the jury may have convicted without actually agreeing on the particulars of the dishonest means, and which of the appellants were part of the conspiracy. For these reasons, the convictions against all of the appellants were unsafe.

A re-trial was ordered, with the prosecution given the choice to amend the present indictment or issue a new one.

Former Hong Kong Chief Executive cleared of criminal misconduct in the Court of Final Appeal

Tsang v HKSAR [2019] HKCFA 24

This case involved a former Hong Kong Chief Executive who was charged by the Independent Commission Against Corruption after failing to disclose a deal with mainland-based businessman, which involved the appellant renting a three-storey property in Shenzhen.Held: The trial judge’s directions on wilfulness and seriousness were inadequate and therefore the appellant’s conviction for criminal misconduct quashed by the Court of Final Appeal. The unanimous court decided there should be no re-trial. The five justices said that the trial judge had failed to provide an adequate direction to the jurors on the issue of seriousness and that they were not told how to determine whether the appellant has ‘wilfully’ carried out the crime.

Hong Kong Court of Final Appeal decide Government measures are discriminatory against same-sex couples

Leung Chun Kwong v Secretary for the Civil Service and Another [2019] HKCFA 19

The Hong Kong Court of Final Appeal were asked to decide on whether couples in a same-sex marriage should be entitled to equivalent employment benefits to those afforded to married couples of the opposite-sex in Hong Kong.The case raised for the first time in Hong Kong whether a differential treatment (purportedly based on marital status) could be justified by the aim of protecting the institution of marriage as understood in Hong Kong.  The Court of Appeal had earlier held that depriving employment-related benefits and the right to a joint tax assessment and tax benefits was justified by the need to protect and not undermine the status of marriage. Held: The Court of Final Appeal unanimously found that the discriminatory measures adopted by the Government could not be justified, and allowed the claimant’s appeal.

Court dismisses appeal in relation to protective costs order where the applicant was a non-profit organisation dedicated to Hong Kong’s environment

Designing Hong Kong Limited v The Town Planning Board [2018] HKCFA 16

This appeal considered an “order in relation to costs whereby a party seeks at an early stage of public law proceedings to obtain an order to the effect that in the event that that party is unsuccessful, there will be no requirement to pay costs to the successful party. This is known as a protective […]

Conviction quashed as lower courts applied wrong test

HKSAR v Pang Hung Fai HKFACC No. 8 of 2013

The appellant had been convicted of dealing with property known or believed to represent proceeds of an indictable office, contrary to the Organized and Serious Crimes Ordinances, ss 25(1) and (3). The present proceedings were an appeal against that conviction. Held: allowing the appeal and quashing the conviction, the Court noted that the lower courts had applied the wrong test.