Posted: January 20th, 2022
Read HKSAR v Special View Ltd (2018) 21 HKCFAR 562 which can be found in the Westlaw Asia website of our library database in which there is a summary of what the court said (as for how to find court cases from the website, see course materials topic 1).
In this case, a company was convicted of causing or permitting a raft to remain in a fish culture zone without having a valid license contrary to section 13(2) of the Marine Fish Culture Ordinance (Cap 353 of the Laws of Hong Kong). The company did not apply for renewal of the license to culture marine fish by the deadline specified in the license for making a renewal of license application. The Agriculture, Fisheries and Conservation Department of the Hong Kong SAR government subsequently cancelled the license before its expiry. The company then appealed against the cancellation decision of the government. The appeal was made within the statutory period allowed for making appeals against cancellation decisions but after the license had expired. The issue was whether the company committed the offence when the relevant raft remained in the fish culture zone during the appeal period but after the license had expired.
Discuss, in your own words, why the Court of Final Appeal decided that the company had committed the said offence. Did the Court of Final Appeal adopt the literal rule or the purposive rule of statutory interpretation (or, both approaches) in arriving at this decision?
For more on statutory interpretation in Hong Kong, read Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144 (p.152 – the beginning lines of p.154 before the discussion on ‘The provisions to be interpreted in the present case’) and Town Planning Board v Society for the Protection of the Harbour Ltd  1 HKLRD 396 (paras.28-29) (both cases can be found in the Westlaw Asia website).
Question Two (15%)
Part A (8%) (word limits: up to 1,400 words for both parts of the question together)
Michael is the proprietor of a restaurant. On 1st January, he received a faxed message from company A (company A sells various products, including kitchenware). There were detailed descriptions of some kitchenware and their prices in the message as well as a reply slip at the end of the message. The message stated, ‘Please fill in the reply slip to make an order of the product(s) that you want and return the reply slip to us (a fax number was provided) by 15th January. We also need to have your cheque for payment by the same day (an address was provided). We will send you the product(s) within a week and we will return the cheque to you if we do not have the product(s).’ Michael filled in the details about a kitchenware on the reply slip and faxed it to company A on the morning of 15th January. He also sent a cheque to company A for payment on the same morning. However, he received another faxed message from company A in the afternoon of 15th January which said that company A had just increased the price of the relevant kitchenware. Michael made a call to company A immediately and insisted on buying the kitchenware at the price stated in the faxed message sent to him on 1st January, but company A refused his request.
On 1st February, Michael met Jenny (she is his friend and the proprietor of shop B which sells DVDs). He asked her as to whether she had a movie DVD (the title of the movie was specified). She replied that she had one last item of the movie in shop B and told him the price. She also said, “do call me by my office telephone number (Michael knew her office telephone number) by 10th February if you would buy the movie DVD. You can pay me after you receive the movie DVD. The story of the movie is so romantic.”
On 10th February, Michael made a call to Jenny by her personal mobile phone number at 6:30pm and left her a message saying that he would buy the movie DVD. However, Jenny was busy at work, and she did not realize Michael had called her by her mobile phone number. As Michael did not call her by her office telephone number, she sold the movie DVD to another customer at 7pm and then left shop B. She only heard Michael’s call at 7:15pm (the website of shop B states that the office hour of shop B is from 9am to 7pm). She apologized to Michael that she had already sold the movie DVD to another customer and Michael said that she should not have done so.
(i) whether Michael and company A have formed a contract in respect of the kitchenware, and,
(ii) whether Michael and Jenny have formed a contract in respect of the movie DVD.
Part B (7%) (word limits: up to 1,200 words for parts i-ii together)
James and Simon are cousins. James is the proprietor of shop A which sells musical instruments while Simon is a free-lance music teacher (Simon does not work for James). On one occasion, Simon visited shop A. When he saw James busy in promoting musical instruments to the customers, he (Simon) played some of the musical instruments in shop A to help James in the promotion. As a result, some customers were impressed with the qualities of the instruments and purchased them. Simon also took this opportunity to promote his own music classes as allowed by James. After the customers left shop A, James said to Simon, ‘to thank you for your help, let me buy the latest T-shirt of the Brazil national football team that you like for you.’ Simon happily thanked James in return. James, however, did not purchase the said T-shirt for Simon when they later quarreled with each other over some daily life matters.
Susan is a free-lance computer programmer and she is skillful in writing computer games. On one occasion, company B (a company which supplies computer game programmes) engaged her to write a computer game programme in consideration of a fixed fee to be paid to her at the end of the contract period and she signed an agreement for this. The agreement mentioned some basic ideas for her as to how to design the game, but she had to create her own detailed ideas in doing so. Later, Matthew, the proprietor of company B, told her that she would be paid a specified additional fee if many customers purchased the game that she designed. Susan happily agreed and she signed another agreement for this. Susan later completed writing the said programme by deadline and received the fee as stated in the first agreement. It turned out that many customers of company B purchased the said programme. However, she was not paid the additional fee as stated in the second agreement when Matthew learnt that she would write another programme (a completely different game) for a business rival of company B.
(i) whether Simon is entitled to the T-shirt of the Brazil national football team from James, and,
(ii) whether company B has to pay the additional fee to Susan (under agency law principles Matthew represented company B in making the arrangement with her).
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