In Patel v Mirza, the Supreme Court resolved the long-standing problem on illegality defence as ‘an incoherent mass of inconsistent authority’, by adopting a brand new ‘Range of Factors’ Test with a ‘trio of considerations’ (policy-based) and overruling the severely criticized Reliance Test (rule-based) in Tinsley v Milligan. One may wonder whether Hong Kong should follow the UK’s position. Due to the variation of illegality with an infinite possibility of factual matrixes, the author suggests the adoption of the majority policy-based approach by Hong Kong. Criticism of the policy-based approach will also be addressed with several refinements required.
Martin Hui, Triumph or tragedy? Hong Kong’s approach on illegality defence in civil claims after Patel v Mirza, Trusts and Trustees, https://doi.org/10.1093/tandt/tty134. Published: 2 August 2018.