Launch of Asia Pacific Guide to Privilege 2019

Please click here to access a preview of the Guide.

We are pleased to launch the 2019 edition of our Asia Pacific Guide to Privilege.

Businesses are increasingly faced with multi-jurisdictional disputes where evidence rarely falls within the borders of a single country and complex legal privilege issues often surface when dealing with communications across multiple jurisdictions.

Compiled by our network of Herbert Smith Freehills lawyers and trusted local counsel, the updated Guide takes account of the latest developments across Asia Pacific and covers 21 jurisdictions.

Many enforcement actions either emanate from or involve long-arm jurisdictions outside Asia and span across many jurisdictions in Asia. Given for example the English Bribery Act’s broad jurisdiction and extra-territorial reach coupled with aggressive enforcement agencies, clients around Asia ought to understand how the authorities in England will apply the law of privilege, in addition to how the law is applied across Asia. Moreover, although English case law is persuasive in most common law jurisdictions, legal advice privilege is an area in which a number of common law jurisdictions, such as Australia, Hong Kong and Singapore, have chosen to depart from English case law. Given the spotlight on these issues, we have added a new chapter on England & Wales and a related comparative question in each of the other 20 chapters across Asia-Pacific.

We hope that this comprehensive Guide will be useful particularly to multinational companies who operate numerous subsidiaries across borders.

Please email asia.publications@hsf.com to request a hard copy of the Guide.

 

Peter Godwin
Peter Godwin
Regional Head of Practice - Dispute Resolution, Asia, Managing Partner - Kuala Lumpur
+60 3 2777 5104
Gareth Thomas
Gareth Thomas
Partner, Head of Commercial Litigation, Hong Kong
+852 2101 4025
Alastair Henderson
Alastair Henderson
Managing Partner - Southeast Asia
+65 6868 8058
May Tai
May Tai
Managing Partner - Greater China
+852 2101 4031
Dominic Geiser
Dominic Geiser
Partner, Hong Kong
+852 2101 4629
Peter Butler
Peter Butler
Partner, Sydney
+61 2 9225 5686
Helen Tang
Helen Tang
Partner, Shanghai
+86 21 2322 2160
Julian Copeman
Julian Copeman
Partner, London
+44 20 7466 2168
Narendra Adiyasa
Narendra Adiyasa
Partner, Jakarta
+62 21 3973 6108
David Gilmore
David Gilmore
Partner, Tokyo
+81 3 5412 5415
Mike McClure
Mike McClure
Partner, Seoul
+82 2 6321 5701
Chinnawat Thongpakdee
Chinnawat Thongpakdee
Partner, Bangkok
+66 2 857 3829

 

 

Japan’s whistleblower laws set to change

Japan’s Consumer Affairs Agency is currently considering amendments to expand the scope and increase the effectiveness of Japan’s whistleblower protection laws. The proposal is earmarked for implementation later this year.

Current status of whistleblower protections in Japan

Whistleblowers are protected under the Whistleblower Protection Act (Act No. 122 of 2004), which prohibits discriminatory treatment of an employee whistleblower, including termination, demotion or reduction in salary, where such termination or discriminatory treatment is due to the whistleblowing, and the employee meets certain requirements, including that he or she must:

  1. not have a wrongful purpose (eg, obtaining a wrongful gain or causing damage to others by whistleblowing);
  2. be reporting about a ‘reportable fact’, which is a fact relevant to:
    1. the commission of certain criminal acts, the protection of human life, consumers, the environment, competition and the life, property and interests of Japanese citizens; or
    2. violations of administrative penalties, recommendations or orders;
  3. be reporting in regard to an act committed by their employer or officers, employees or agents of their employer;
  4. report to the designated person in their company or to a government agency with the power to impose penalties in regard to the reportable fact or to any person necessary to prevent the occurrence or spread of damage.

The existing law (in place since 2006) has been criticised as somewhat of a toothless tiger, due to the lack of sanctions available to be imposed on companies that treat whistleblowers unfairly in breach of the provisions.

Proposal to reform whistleblower protections

Aligning with recent international trends toward increased whistleblower protections an expert panel at the Consumer Affairs Agency (CAA) (a Japanese government body) was tasked in December 2018 with undertaking an analysis of the existing provisions, consulting with the business sector, and producing a report containing recommendations for the reform of Japan’s whistleblower legislation.

Key findings from the report include:

  1. recommendations to strengthen existing protections and extend the scope to cover former employees and board members (as existing provisions are limited to current employees);
  2. requiring companies to implement mandatory internal channels for reporting of information by whistleblowers; and
  3. considering the introduction of administrative penalties for breaches, including official warnings and requests to comply, as well as public naming and shaming for continual breaches.

Despite the move to increase protections, the CAA did not go so far as to recommend the introduction of strong sanctions against employers that punish their workers for whistleblowing. It also resisted calls for company officials who are in charge of in-house whistleblower alert procedures to be bound by legally punishable confidentiality requirements.

Watch this space

Following the CAA report, the Ministry of Internal Affairs and Communications has undertaken a public consultation period from January 23 to March 29 2019, seeking public input on whistleblower protections and proposed reforms.

While the result of the public consultation is yet to be published, we understand the CAA is aiming to finalise a proposal to amend whistleblower protection laws in time for debate at the Diet later this year.

If you have any questions about how whistleblower provisions apply to your company, or what the proposed changes may mean to you, please contact our HSF Tokyo Team.

David Gilmore
David Gilmore
Managing Partner, Tokyo
+81 3 5412 5415
Elaine Wong
Elaine Wong
Partner, Tokyo
+81 3 5412 5492
Elizabeth Allsop
Elizabeth Allsop
Senior Associate, Tokyo
+81 3 5412 5417

The Hong Kong Court of Appeal considers constitutionality of the requirement to disclose suspicious transactions

In Interush Limited & Anor v The Commissioner of Police, the Commission of Custom & Excise and Mak Wing Yip Cyril, Superintendent of Police [2019] HKCA 70, the Court of Appeal (“Court”) dismissed a challenge to the constitutionality of an aspect of Hong Kong’s money laundering legislation.

The Court held that the statutory regime which obliges banks to disclose suspicious transactions relating to property known or believed to represent proceeds of a crime is not unconstitutional. In the circumstances of this case, the Court held that although property rights under the Basic Law were engaged, the regime was no more than necessary for the legitimate purpose and societal benefit of anti-money laundering and a reasonable balance had been struck. Continue reading

Hong Kong SFC confirms enforcement priorities and approach following strategic review

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.

 

William Hallatt
William Hallatt
Partner, Financial Services Regulatory
+852 2101 4036
John Siu
John Siu
Senior Consultant
+852 2101 4163
Alice Dillon
Alice Dillon
Registered foreign lawyer (New South Wales, Australia)
+852 2101 4127

Singapore: MAS withdraws second merchant bank status in AML push

In line with its increased commitment to combat money laundering and terrorist financing in Singapore, the Monetary Authority of Singapore (MAS) has ordered the closure of Falcon Private Bank Ltd, Singapore Branch (Falcon Bank).

On 11 October 2016, the MAS stated that it was withdrawing the merchant bank status of Falcon Bank for serious failures in anti-money laundering (AML) controls and improper conduct by senior management both at Falcon Bank’s Head Office in Switzerland and its Singapore Branch. This was further to the closure of the Singapore branch of an international bank for serious breaches of AML requirements earlier this year (see our e-bulletin of 25 May 2016), and the MAS’s announcement in July 2016 that it was investigating numerous other banks for lapses in AML controls.

Continue reading

Property tycoon and former Chief Secretary to appeal to Court of Final Appeal in Hong Kong’s high profile corruption case

Former Chief Secretary, Rafael Hui, former Sun Hung Kai chairman, Thomas Kwok, and two others have today been given permission to appeal to Hong Kong's Court of Final Appeal.  The Court of Appeal granted permission for the further appeal in light of public interest and the legal issues involved.

In February, the Court of Appeal dismissed the defendants' appeals against conviction. The court's ruling today means the Court of Final Appeal will review whether the offence of conspiracy to commit misconduct in public office is made out on proof that the defendant conspirators intended and agreed that, in return for a payment, Hui would be favourably disposed to them.

For more information on the Court of Appeal's judgment rejecting the Defendants' appeal in February, see here.

 

Property tycoon and former Chief Secretary lose appeal in Hong Kong’s highest-profile corruption case

Hong Kong property tycoon Thomas Kwok and ex-deputy leader Rafael Hui saw their appeals against conviction and sentence dismissed before the Hong Kong Court of Appeal. In a detailed judgment, the Court of Appeal unanimously rejected the appeals brought by Kwok, Hui and two others. The judgment confirms the well-established principle that benefits offered to develop or retain goodwill may also fall foul of Hong Kong’s bribery laws.

Hui is the highest-ranking official in Hong Kong’s history to be found guilty of taking bribes. He was convicted in late 2014 of misconduct in public office and conspiracy and jailed for seven and a half years. Kwok was found guilty of conspiracy to commit misconduct in public office (ie, bribing an official) and sentenced to five years. Francis Kwan and Thomas Chan were sentenced to five and six years respectively for acting as middlemen for the payments. For further details on the trial court’s conviction and sentencing in December 2014, see our earlier ebulletin here.

Continue reading

Latest corruption perception scores in line with firm’s global anti-corruption report

International anti-corruption NGO, Transparency International, released on 27 January its latest Corruption Perceptions Index (CPI), reviewing public sector corruption risk in 168 countries. Our 2015 report highlights the same offending countries and points to similar issues, particularly systemic government corruption, failed electoral mandates and public revolts against alleged grand-scale corruption.

The latest CPI scores confirm corruption’s status as a social, political and commercial issue to be reckoned with. Boards, governments, companies and individuals from all walks of life encounter it; with technological advances only serving to aid rather than quell its increasingly covert forms.

Continue reading

Herbert Smith Freehills Singapore hosts round table discussion on “preserving privilege: practical issues in the context of disputes and investigations”

On Wednesday 13 January 2016, a cross section of our clients based in Singapore joined our Disputes and Corporate Crime & Investigations teams and Bankim Thanki QC, a leading commercial advocate and litigator who has practised extensively in the region and the editor of The Law of Privilege (Oxford), for a roundtable discussion on the preservation of privilege.

In this e-bulletin, Alastair Henderson, Pamela Kiesselbach and Daniel Waldek summarise some of the key issues discussed in relation to privilege and its preservation, and practical suggestions coming out of those discussions.  The ebulletin looks at internal investigations, internal information gathering for the purpose of obtaining legal advice, and waiver of privilege as a result of disseminating legal advice internally or sharing it with third parties.

For more information, please contact the authors or your usual Herbert Smith Freehills contact.

Alastair Henderson
Alastair Henderson
Managing partner, Singapore, Head of international arbitration practice, Southeast Asia
+65 6868 8058
Pamela Kiesselbach
Pamela Kiesselbach
Senior Consultant
+65 6868 9826
Daniel Waldek
Daniel Waldek
Senior Associate
+65 6868 8068

 

 

New guide to the Independent Insurance Authority in Hong Kong launched

Hong Kong is about to establish a unified insurance regulatory regime under the auspices of a new body, to be named the 'Insurance Authority'. The creation and set up of an independent insurance authority is regarded by the Hong Kong Government as the most important regulatory reform in the insurance sector since the passage of the Insurance Companies Ordinance in 1983. The potent regulatory powers that the new Insurance Authority will wield will present a challenge to those operating in the industry, and they must be ready to embrace the changes and take advantage of opportunities the new regime will present.

The launch of our Guide to the Independent Insurance Authority is timely as it coincides with recent legislative amendments which enable the 'Provisional Insurance Authority' to be established this month to undertake preparatory work.  The Provisional Insurance Authority will be renamed as the Insurance Authority in around late 2016 or early 2017, and take over the existing duties of the Office of the Commissioner of Insurance.

Our new Guide to the Independent Insurance Authority provides an overview of the new authority's authorisation and licensing powers and navigates through the armory of its supervisory and enforcement powers.  The Guide also provides practical tips and recommendations for those in the industry to consider.

To request a copy of this guide, please email asia.publications@hsf.com.  If you would like more information, please contact the authors.

Please click here to preview this publication.

 

Gareth Thomas
Gareth Thomas
Head of Commercial Litigation, Partner
+852 2101 4025
William Hallatt
William Hallatt
Senior Registered Foreign Lawyer (England & Wales)
+852 2101 4036