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criminal law vs civil law
- objective: prevent crimes and punish offenders vs resovlves disputes and compensate victims
- standard of proof: beyond reasonable doubt vs balance of probabilities
- remedies: fine, imprisonment vs damages, special performance, injuction and delivery up
the plaintiff can order the defendant to pass all the products carrying the infringing trademark to the plaintiff
for property sales, the court would usually order ... rather than damages because...
- specific performance
- the property in Hong Kong is unique and money compensation may not be enough to reflect the damages
why is the standard of proof for criminal offence 'beyond reasonable doubt'?
The HK legal system assumed the defendent innocent; the purpose is to protect the individual’s liberty
the actus rea and mens rea of theft are...
misappropriation and to permanently deprive of one's right of possession
Even though there’re elements of mens rea and actus rea, it may not be a crime if there’s valid defense if..
- unsound mind (requires strong evidence and doctors as the expert witness)
- proportional self-defense
- under duress
elements of adverse possession...cannot sell the property because..
- factual possession of the land(occupy the land, develop the land and control over the land)
- intention to exclude others including the original owner(put up a sign)
- you didn't undergo formal legal transaction, you don't have the deed
- duration: 50years after author's death vs 20 years
- registration: not required vs required(specification)
- drafter must be over the age of 18
- must be written
- must be witnessed by 2 independent witnesses
- the witness cannot become the beneficiary
The order of beneficiaries in the Intestate Estate Ordinance are
- Spouse only:all estate
- Spouse + children:spouse can first get non-land property and 500000 cash, then spouse share the remaining property with the children
- Other relatives
Careless driving - overlapping between criminal and civil law - the police can charge the driver of ... and the fine goes to ...According to Civil law of negligence, the plaintiff can charge for ....if the incident inflict bodily harm so that ....The plaintiff should push the police to ...
- careless driving; treasury
- battery; the damages may go to the victim
- prosecute the driver because the conviction is helpful for you to win the case in civil prosecution
hierarchy of HK court system and their jurisdiction
- court of final appeal (AJ)
- high court: court of first instance(OJ and AJ) and court of appeal (AJ)
- district court(OJ)
- magistrate's court and tribunals(small claims, land and labor)(OJ)
original vs appellate jurisdiction
- the right of a court to hear a case that has not already been dealt with and make a decision on that case vs to the right of courts to deal with cases that have already been heard by another court
- conduct a trial and hear cases on both evidence and points of law vs only hears on points of law
- Most serious criminal offences at CFI(7 or 9 jurors)
- Civil case: Defamation (Why defamation cases should involve jurors? Judges may not understand ordinary language and thus cannot judge whether defamation was committed)
- Coroner’s court: 5 Jurors (make recommendation to govt)
...appeals to CA; ... appeals to CFI, then to ..; appeals should be ..
- Land tribunal, District Court and CFI
- magistrate's court and tribunals(except land); CFA
imprisonment - which court to go to?
- >7years, go to CFI;
- btw 2-7 years, go to district court,
- <2year, magistrate court
claims for damages- which court to go to?
- is more than 1M, go to CFI;
- btw 50K to 1M, go to district court,
- below 50K, go to small claims tribunal
- Transparent, more accountable
- Since people didn’t elect the judge, jury makes the judgment more democratic
jurisdiction of district court includes...
- criminal: all indictable offences except murder, manslaughter and rape
- family court: divorce, child custody
Magistrates' court- its Criminal jurisdiction are...Special Magistrates handle...Under ... circumstances may you say “Objection”!!
- Maximum: 2 years imprisonment, fine of $100,000
- minor offences such as hawking, littering, and traffic offences (max. fine: HK$50,000)
- when other side ask leading question
Common law control of exemption clauses
- (i) Signed contracts: The signer is presumed to have read and understood the significance of all terms and therefore the exemption clause is binding.
- (ii) The parties will be bound by the terms of the contract if:
- The person seeking to rely on the clause(the trader) can show that reasonable steps were taken to give notice of the (existence of) clause to the other contracting party.
- The exemption clause must be given before or at the time the contract was made.
Statutory control―Control of Exemption Clauses Ordinance
- Clauses which exempt liability for negligence (there must be negligence on the part of the trader) will be
- (i) void for personal injury and death;
- (ii) only be effective if the clause is reasonable for property damage
Elements of misrepresentation includes...when proving mental intention of dishonesty in misrepresentation cases, find out...The representee who have suffered some damage from such fraudulent misrepresentation may
- A statement of fact. (as opposed to statement of opinion) and Must be false.
- Must have induced the other party to enter the contract; but for the statement made by the defendant, the plaintiff would not have entered the contract
- The contract has been made and Detriment(suffer a loss)
- Mental intention of dishonesty
- inconsistent statements & ulterior motive/unjust enrichment of the misrepresentor
- rescind the contract for fraud and claim damages in tort of deceit