April 2025 Legal Case Updates

Administrative Law – Judicial review – Commissioner of Correctional Services – Prisoner serving sentence for offence endangering national security – Non-referral of prisoner’s case to Post-Release Supervision Board for consideration of early release – Whether there was practice of granting remission of sentence or early release of prisoners for industry and good conduct – Legislative amendment introducing test whether early release of or grant of remission to prisoner serving sentence for offence endangering national security would not be contrary to the interests of national security – Whether test lacking legal certainty – Certainty of definition of ‘national security’ adopted in the laws of the HKSAR – Whether non-referral additional punishment, increase in penalty or arbitrary detention – Whether non-referral retrospective penalty – Whether decision-making process involved procedural irregularity – Whether subsequent process remedied irregularity – Whether decision Wednesbury unreasonable or disproportionate – Whether there was failure to make sufficient inquiries – Status of opinion of Committee on Safeguarding National Security – Safeguarding National Security Ordinance (6 of 2024) ss 4, 8, 112(3), 152, 163, 164 – Post-Release Supervision of Prisoners Ordinance (Cap 475) s 6 – Prison Rules (Cap 234A) r 69

Administrative Law – Judicial review – Director of Immigration – Refusal to rescind removal orders – Substantiated non-refoulement protection claimants – Utility to have removal orders rescinded – Illegality – Fettering of discretion

Limitation of Actions – Action for account for breach of fiduciary duty – Categorization of constructive trusts and corresponding applicability of limitation periods – Whether claim for constructive trusts over secret profits exempted from limitation – Whether secret profits constituted ‘trust property’ – Whether right to seek remedy of account of secret profit not time-barred – Whether alternative claim for equitable compensation not subject to limitation period – Limitation Ordinance (Cap 347) s 20(1)(b), (2)

Taxation and Revenue – Profits tax – Assessment – Decision of the Board of Review – Renewed application for leave to appeal – Whether Board of Review has power to determine ’public law challenges’ – Inland Revenue Ordinance (Cap 112) ss 14, 69 

Arbitration – Interim relief – Aiding arbitral proceedings ongoing outside Hong Kong – Injunction restraining disposal of assets to subsidiary or associated entities – Worldwide Mareva injunction – Whether court should exercise jurisdiction to grant relief – Whether the arbitral tribunal had disposed of and granted interim measures – Arbitration Ordinance (Cap 609) ss 45, 61 

IN THE MATTER OF Section 45 of the Arbitration Ordinance (Cap 609) 

and 

IN THE MATTER OF Order 29 Rule 1 and Order 73 Rule 4 of the Rules of the High Court (Cap 4A)