The convictions of former Chief Secretary of Hong Kong, Rafael Hui, former Sun Hung Kai chairman, Thomas Kwok, and two others have been upheld by Hong Kong's Court of Final Appeal. The appellants have resumed serving their sentences for conspiracy to commit misconduct in public office.
In a case that has occupied the legal, political and business community, the judgment provides important clarification on the scope of the common law offence, in particular what is required for conspiracy to commit misconduct in public office. The judgment confirms the well-established principle that benefits offered to develop or retain goodwill may fall foul of Hong Kong’s bribery laws.
Hong Kong's Legislative Council has passed a law allowing third parties to fund arbitrations seated in the territory, as well as work done in Hong Kong for arbitrations seated elsewhere, and for mediations. This development has been long anticipated, and will be widely welcomed by Hong Kong's thriving arbitration community, which views it as essential to Hong Kong maintaining its status as one of the world's most popular arbitral seats.
The new law, in the form of amendments to the Arbitration Ordinance (Cap. 609), abolishes the doctrines of champerty and maintenance for arbitration, clearing the way for parties with no legitimate interest in the proceedings to fund them, in return for a share in any award or settlement. Third parties can include lawyers and law firms, although not if they act for any party to the proceedings. Similar amendments are made to the Mediation Ordinance (Cap. 620).
The amendments are expected to take effect later this year, to allow time for development of an appropriate funder code of conduct.
Hong Kong's status as a leading international dispute resolution hub is well-known. It enjoys a strong, independent judiciary as well as world class international arbitration services. Mediation and other forms of ADR are heavily supported by a myriad of institutions. Although not a compulsory requirement, mediation in the context of civil litigation tends to be interpreted by commercial parties as a mandatory step. Against this backdrop, delegates voted at the recent Global Pound Conference Hong Kong, which saw over 200 delegates from across Hong Kong's disputes market congregate to discuss their approach to commercial dispute resolution. Hong Kong's Secretary for Justice, Chief Justice and Solicitor General headlined the conference.
Click here for our ebulletin on the Hong Kong results, and here for an article on technology in dispute resolution, featuring partner May Tai.
Click here to download our synopsis and infographics on the Hong Kong data as featured on our ADR hub.
Click here to download the aggregated results from the first 18 Global Pound Conference events, which have taken place in 12 countries in Africa, the Americas, Asia, Europe and the Middle East. This includes the very first analysis of the overall trends set to shape the future of dispute resolution globally.
The above provide insights for all stakeholders – commercial parties, lawyers, experts, judges, arbitrators, mediators and government – on the areas of focus for Hong Kong as it seeks to maintain – and expand – its position as a leading dispute resolution centre.
This blog post will consider a number of recent cases in England where solicitors have been convicted of offences or struck off the register for misappropriating client funds from deceased estates. These shed light on the surprising levels of abuse uncovered by the Courts and the English Solicitors Regulation Authority (the “SRA”), and the zero tolerance approach taken to solicitors who seek to personally benefit from the trust placed in them by their clients.
A number of common themes run through the cases, namely that offenders have often sought to explain and justify their actions through desperation, ill health and financial hardship. Further, the solicitors in question generally practised in local firms or as sole practitioners, where clients place a high degree of trust in them due to their geographical proximity and personal familiarity. Finally, the offences appear to have taken place over a number of years, with initial abuse turning into a pattern of offending.
During its investigations the SRA asserted that it is only in exceptional circumstances that a solicitor found to have acted dishonestly will avoid being struck off the register. Explanations and mitigating circumstances advanced in the cases below were not sufficient to overcome the serious breaches committed and the need to uphold public confidence in the legal profession.
In the recent decision of Wee Shuo Woon v HT S.R.L  SGCA 23, the Court of Appeal considered whether evidence which had been made available on WikiLeaks as a result of the Respondent's ("HT S.R.L."') computer systems being hacked had lost its confidential and legally privileged status.
The decision, which has taken on added significance in the wake of recent global cyber-attacks, indicates that the Singapore courts will be slow to admit evidence obtained as a result of such incidents. In particular, the Court held that the equity in favour of restraining the use of privileged documents was even stronger in the case of documents obtained in a cyber-attack than in the case of those obtained by virtue of a party's innocent mistake. The order to exclude such evidence was upheld.
In the recent decision of Wilson Taylor Asia Pacific Pte Ltd v Dyna-Jet Pte Ltd  SGCA 32, the Singapore Court of Appeal confirmed that the Singapore courts will enforce a dispute resolution clause which gives only one party the option to arbitrate. The court also clarified the requirements and threshold for a stay of proceedings to be granted under section 6 of the Singapore International Arbitration Act ("IAA").
Since early March 2017, the Securities and Futures Commission (SFC) and the Hong Kong Monetary Authority (HKMA) have collectively taken disciplinary actions against five regulated entities and an individual relating to breaches of anti-money laundering (AML) and counter financing of terrorism (CFT) regulatory requirements. The entities were fined amounts ranging from HK$2.6 million to HK$7 million, whereas the individual was banned from re-entering the industry for nine months.
Both the SFC and the HKMA have made it clear that AML and CFT compliance will continue to be a priority in 2017, and the recent disciplinary actions demonstrate swift action on their part. The SFC has set up a temporary specialised team within its Enforcement Division to tackle know-your-client and AML/CFT control failings. The raft of disciplinary actions serves as a warning that the SFC and the HKMA are prepared to impose tough sanctions and that regulated entities should take action now to ensure compliance with the relevant requirements.
Please click here to view our full briefing.
William HallattPartner, Financial Services RegulatoryEmail
+852 2101 4036
Hannah CassidyRegistered foreign lawyer (England and Wales), Hong KongEmail
+852 2101 4133
The English High Court has recently approved an application to change the provision of a trust deed relating to the appointment of new trustees. The change was necessary because the original power was reserved exclusively for the settlor, who had died. All adult beneficiaries of the trust supported the change, as did three of the four trustees.
This case illustrates the importance of having succession plans for the power of appointment of new trustees. It also addresses disputes between parties about changes to trust terms.
The Arrangement on Mutual Taking of Evidence in Civil and Commercial Matters between the Courts of the Mainland and Hong Kong (Arrangement) recently came into force on 1 March 2017, announced by the Department of Justice. The Arrangement is introduced to offer greater certainty and enhanced efficiency for obtaining of evidence between the Mainland and the HKSAR for civil and commercial cases.
Julian Copeman, May Tai and Anita Phillips discuss their client research and the outputs of the recent Global Pound Conference to assess what is required to bring mediation into the mainstream for commercial parties in Hong Kong. Click here to access their article in Asian Dispute Review, which was published on 3 April 2017.