A former solicitor and disability claims tribunal judge, and her husband, forged a will and letter to obtain two adjacent cottages in order to create one, large retirement home for themselves. On conviction, they were sentenced to six month's jail, the maximum sentence. This case should remind readers of the serious penalties for forgery.
Asian Dispute Review, sponsored by the Hong Kong International Arbitration Centre, Chartered Institute of Arbitrators, Hong Kong Institute of Arbitrators and the Hong Kong Mediation Council, has published an article on the Global Pound Conference Series, and what to expect from the Hong Kong event.
The one day Global Pound Conference is coming to the Hong Kong Convention and Exhibition Centre on 23 February and promises to be one of the major dispute resolution conferences of 2017. Delegates from across Hong Kong's dispute market will vote via GPC's voting App, and participate in real time debates by world class speakers.
Help us shape the future of dispute resolution in the territory.
The full programme is here.
Register here before 21 January and benefit from the excellent early bird rate of USD 150.
Herbert Smith Freehills is proud to be a founding sponsor of the Global Pound Conference Series and lead organiser of the Hong Kong event.
Hong Kong Court of Final Appeal finds no breach of comity in granting Mareva injunction to protect a foreign claim for breach of an exclusive jurisdiction clause
In the case of Compania Sud Americana de Vapores S.A. v Hin-Pro International Logistics Limited (FACV 1/2016), the Court of Final Appeal (CFA) overturned the Court of Appeal's (CA) decision and reinstated a Mareva injunction granted in support of proceedings in the English court for breach of an exclusive jurisdiction clause. In doing so, the CFA held that the CA erred in holding that it was necessary to consider whether the plaintiff had a good arguable case in its substantive proceedings under Hong Kong law. Rather, the correct test should be to consider whether the plaintiff has a good arguable case before the foreign court.
The CFA also held that there was no bar on the ground of breach of comity, nor public policy, to the grant of a Mareva injunction to assist in enforcing an award (or potential award) of damages by the English court for breach of an exclusive jurisdiction clause as the Hong Kong court was not asked to enforce the jurisdiction clause itself in favour of the English court. This was so even though the substantive proceedings were conducted before the Chinese and English courts in parallel, with conflicting judgments as to jurisdiction.
The BVI Court of Appeal has recently allowed an appeal concerning a trustee's failure to account and breach of trust. The breach of trust arose as a result of the trustee making an appointment of the trust assets without considering all relevant circumstances. In overturning the decision, the Court noted that if a settlor transfers further property to the trustee, a presumption arises that such property is to be held on trust under the same terms as the original trust. Such presumption can be rebutted, but the burden of proof rests with the trustee to do so.
The case has interest for private wealth matters regardless of jurisdiction, given the popularity of the BVI when structuring assets.
SFC announces “Manager in Charge” regime to heighten senior management accountability for financial institutions in Hong Kong
In its recent circular (with annexes 1 and 2 and a set of FAQs), the Securities and Futures Commission (SFC) introduced new measures to heighten the accountability of the senior management of all licensed corporations (LCs). The circular clarifies who should be regarded as the senior management of a LC and requires the LCs to designate fit and proper individuals to be “Managers In Charge” of certain Core Functions (MICs, MIC Regime).
The SFC's increased focus on senior management accountability is part of a global trend to make it easier for regulators to hold individuals to account, and comes following the recent introduction in the UK of the Senior Managers and Certification Regime. While the SFC emphasises that the MIC Regime does not impose any additional civil or criminal liability on the senior management of LCs, individuals must consider carefully whether they should be appointed as MICs and, if so, what their responsibilities for the designated Core Function are.
In its recently relaunched Enforcement Reporter newsletter (see first issue), the Securities and Futures Commission (SFC) has confirmed that corporate fraud and misfeasance, anti-money laundering, Growth Enterprise Market companies and multiple intra-group failings are issues high on its agenda and will be pursued as a priority, as part of its shift towards a more targeted approach to enforcement.
The SFC has also confirmed changes to the way it will go about pursuing its enforcement objectives, including the establishment of various specialised internal teams to address key and emerging risk areas, in alignment with its enforcement priorities, as well as increased collaboration with Mainland and Hong Kong regulators.
In addition, the SFC has indicated that in the appropriate case (with the exception of criminal proceedings), it may notify the relevant parties towards the end of an investigation of its intention to take enforcement action. The parties will be afforded an opportunity to first make submissions (which may be on the record), bring any relevant facts to the SFC's attention, set out any legal reasons as to why the enforcement action should not proceed, and/or propose a settlement, before the SFC formally commences enforcement action.
In our recent e-bulletin, we consider these issues in more detail. If you wish to discuss further, please contact William Hallatt, John Siu, Alice Dillon or your usual Herbert Smith Freehills contact.
Alice DillonRegistered foreign lawyer (New South Wales, Australia)
+852 2101 4127
The Court of Appeal of Hong Kong has recently upheld a decision appointing a son to be the Committee to take care of his incapacitated mother's affairs. This was despite protest from the son's sibling, who claimed the son was an inappropriate person to be the Committee. The sibling also contested that their mother did not lack capacity and thus a subsequent Will in the sibling's favour was valid.
As previously noted in April 2015, India amended its model bilateral investment treaty (the Indian Model BIT) and has reportedly been deploying it in recent months to seek to re-negotiate bilateral investment treaties (BITs) with over 47 countries (see previous post of July 2016). One of these negotiations was with Brazil, a country historically known for not having any BITs in force, despite signing several in the 1990s. A specialised news source (Investment Arbitration Reporter) has now reported the conclusion of negotiations between India and Brazil culminating in a near-final treaty between the two nations.
The County Court at Cardiff has recently ordered a solicitor to comply with the Legal Ombudsman's direction to complete the administration of an estate. Failure to do so would result in imprisonment for 14 days. The case re-enforces the importance of complying with the Legal Ombudsman's directions in relation to estate administration and illustrates how the Court is willing to enforce such directions.
In or before 2014, Mr JS Ladbrooke, the personal representative of the deceased, brought a complaint before the Legal Ombudsman that Ms Rhiannon Cory, a practising solicitor and the defendant, was not acting on his instruction to complete the administration of the estate. Unfortunately, neither the case nor the Legal Ombudsman's decision specifies precisely what Ms Cory had failed to do. On 7 March 2014, the Legal Ombudsman issued a decision requiring Ms Cory to (i) complete the administration of the estate and provide a finalised copy of the estate accounts to Mr Ladbrooke; (ii) reimburse a sum of £527.28 to the estate; and (iii) reduce the total fees of her firm, Castle Law (the "Decision").
The Legal Ombudsman reminded Ms Cory of the Decision on 18 March and 3 April 2014. Receiving no response, the Legal Ombudsman sent further letters to her on 1 May 2014 and 13 January 2015 requiring compliance. In these letters, the Legal Ombudsman stated that absent compliance, further proceedings would be commenced to enforce the Decision.
In early 2016, the Legal Ombudsman made an application for an order to enforce compliance with the Decision (the "Order"). The Order was made on 17 June 2016. An application for committal was made in September 2016 (the "Committal Application").
The Court found on the facts that since July 2016, by personal service of the documents relevant to the Order, Ms Cory had been made fully aware of the terms of the Order that she was required to comply with. Further, the Court observed that by personal service of relevant documents, Ms Cory had knowledge of the Committal Application and the hearing.
Despite knowledge of the Decision / Order and the Committal Application, Ms Cory did not respond to the efforts of the Legal Ombudsman to enforce compliance or to secure her cooperation with the Decision / Order. Ms Cory also failed to attend the hearing of the Committal Application.
The Court found "[t]his is in short a solicitor who has hidden her head in the sand and continues to do so".
Accordingly, the Court ordered that Ms Cory be committed to prison for a period of 14 days, but the imprisonment is suspended on condition that she attend the adjourned hearing.
Solicitors must administer an estate with competence and respond and comply with directions from the Legal Ombudsman's in a timely manner. The case re-enforces the importance of complying with the Legal Ombudsman's direction in estates cases and illustrates how the Court is willing to enforce such a direction.
 Legal Ombudsman v Rhiannon Cory  EW Misc B 36 (CC)
When was the last time you looked at your organisation's disciplinary procedures? Is it time for a refresh?
Earlier this year, a decision of the Court of First Instance of Hong Kong ("CFI") caused many HR professionals to reassess their organisation's disciplinary procedures after the CFI held that an employer's disciplinary policy was broad enough to apply to situations involving under-performance.
This decision serves as a reminder of the importance of reviewing regularly internal policies and procedures to ensure that they continue to reflect accurately the needs of the business.