辯方資深大律師林孟達盤問冗長被叫停 - Defence Senior Counsel Kumar Ramanathan SC's Long Cross-Examination Was Stopped

辯方資深大律師林孟達 (Defence Senior Counsel Kumar Ramanathan SC) 昨接連出招，除即場呈交兩份文獻，盤問時間冗長，一度挑起證人不滿，醫委會主席麥列菲菲亦忍不住出口叫停。林在開庭前已聲稱有感冒，表明盤問節奏會較慢。開庭不久後，林又呈交兩份醫學文獻，醫委會委員先後要休庭十分鐘及十五分鐘閱讀文件。林孟達反覆質問專家證人勞子僖（圖）的過往證供；就檢查技術提問時，數度以「你有否教導你的學生使用羊膜鏡」及「你有多久沒使用羊膜鏡」作問，挑起勞的不滿，一度露出不悅面色。林又就「一般角度」及「特定角度」等方式重複提問同一問題，麥列菲菲忍不住出口叫停，「無論你想如何混淆都影響不到委員的判斷」。

(Source: http://hk.apple.nextmedia.com/news/art/20140127/18606790)

Solicitor Anthony Au Found Guilty of Professional Misconduct (區玉麟律師專業失當罪成)

區玉麟律師專業失當罪成 - Solicitor Au Yuk Lun Anthony Found Guilty of Professional Misconduct

Hearing date: 22 - 23 August 2011 and 27 February 2012

Findings:
12 December 2011

Order:
7 March 2012

The Complaint
The Solicitors Disciplinary Tribunal (the “Tribunal”) found the following complaint against the Respondent proved:

Breach of Principle 6.04 of the Guide in that the Respondent failed to give prompt and satisfactory explanations or replies to the Law Society’s enquires by its letters of 13 January 2009, 5 February 2009, 20 February 2009, 17 August 2009 and 23 September 2009 concerning the Respondent’s professional conduct or to explain his conduct when required to do so by the Law Society.

The Findings

The Tribunal first dealt with the question as to the obligation of a solicitor when declining to deal with an inquiry from the Law Society.

The Tribunal was of the view that, in order for a solicitor not to be in breach of Principle 6.04 of the Guide, he should have reasonably arguable grounds for declining to deal with such inquiry. The Tribunal bore in mind that solicitors were professionals and had the ability to obtain, if necessary, expert advice on such question. It would not be enough for the solicitor to have a bona fide belief that his action was correct. On the other hand, it was imposing too high a standard (bearing in mind that a breach of Principle 6.04 constituted professional misconduct) for the solicitor to be clearly correct in declining.

The Respondent relied on “res judicata” and “Privilege against self-incrimination” as the main arguments that he was not in breach of Principle 6.04. The Tribunal rejected the Respondent’s arguments by making the following findings: -

Res judicata

1. The Law Society requested the Respondent to explain whether he acted for the complainant in a property transaction that took place in the Mainland (the “Property Transaction”) in his capacity as a China Appointed Attesting Officer or as a solicitor (the “Request”). Subsequently, the Law Society asked the Respondent to confirm whether, in his view, he had also acted for the complainant as a solicitor in the Property Transaction (the “Revised Request”).
2. The Respondent argued that he had answered the Revised Request by stating that the question of whether or not he acted for the complainant as a solicitor in the Property Transaction (the “relevant question”) had already been decided as between himself and the Law Society under the principles of res judicata as a result of the decision by an Investigation Committee in dealing with another complaint against the Respondent in 1997 (the “1997 Complaint”).
3. The complainant in the 1997 Complaint did not actually raise the relevant question and hence the Investigation Committee did not need to deal with the relevant question.
4. The decision of the Investigation Committee in the 1997 Complaint could not be said to be a final decision in that the investigation could have been reopened, for instance, by the submission of new evidence. The Investigation Committee did not make a judicial decision since it merely endorsed the result of an investigation rather than acting as a tribunal deciding specific issues between defined parties.
5. The decision of the British Columbia Court in Visser v. Association of Professional Engineers [2005] BCSC 1402 did not assist the Respondent in establishing that the Investigation Committee’s decision on the 1997 Complaint was res judicata and hence grounds for arguing that the answer to the relevant question was res judicata.
6. The Respondent has not established a reasonably arguable case that he has dealt with the Revised Request in compliance with Principle 6.04 of the Guide.

Privilege against self-incrimination

1. The Tribunal did not find that, by answering the Revised Request, the Respondent would expose himself to punishment, penalty or forfeiture. Hence privilege was not available to the Respondent.
2. Even if the privilege was relevant, on the basis of the English Court of Appeal’s decision on R v. Institute of Chartered Accountants of England and Wales, ex parte Nawaz [1997] PNLR 433 (applied in David Herman Holder v. The Law Society [2005] EWHC 2023 and Allan Macpherson v. The Law Society [2005] EWHC 2837), the Respondent has waived the privilege by being a member of the Law Society and thereby becoming bound by the provisions of the Guide including Principle 6.04.
3. The Respondent has not established a reasonably arguable case that he has privilege against self-incrimination to decline to answer the Revised Request.

The Tribunal invited the Respondent to provide his answer to the Revised Request to the Law Society within 30 days of receiving the Findings, and remarked that the Respondent would bear in mind that compliance with Principle 6.04 of the Guide is part of a solicitor’s obligations in being part of a self-regulated profession and non-compliance indicates an unwillingness to comply with those obligations.

The Order
After having considered the parties’ submissions, including the fact that the Respondent had answered the Revised Request in accordance with the invitation of the Tribunal, the Tribunal ordered that the Respondent: -

1. pay a penalty of HK$25,000; and
2. pay a fixed amount of costs to the Law Society.

Mr. Peter Sit of Messrs. Sit, Fung, Kwong & Shum for the Applicant
Mr. Jonathan Wong of Counsel instructed by Messrs. Keith Lam, Lau & Chan for the Respondent

Tribunal Members:
Mr. R.S. Peard (Chairman)
Mr. Paul Tan
Dr. H.T. Cheng

(The Respondent lodged an appeal against the Findings of the Tribunal and its Order on penalty and costs in CACV 60/2012. On 11 December 2012, the Court of Appeal dismissed the Respondent’s appeal with costs in favour of the Law Society. On 21 December 2012, the Court of Appeal handed down the reasons for its judgment.

The Respondent sought leave to appeal against the judgment of the Court of Appeal to the Court of Final Appeal. On 22 March 2013, the Court of Appeal dismissed the Respondent’s application for leave to appeal to the Court of Final Appeal with costs in favour of the Law Society.

The Respondent then applied to the Court of Final Appeal for leave to appeal against the judgment of the Court of Appeal. On 24 April 2013, the Acting Registrar issued a Summons requiring the Respondent to show cause as to why his application should not be dismissed.

Having considered the Respondent’s application and his written submissions, on 28 October 2013, the Appeal Committee of the Court of Final Appeal dismissed the Respondent’s application for leave to appeal to the Court of Final Appeal on the ground that it discloses no reasonable grounds for leave to appeal. It was further ordered that there be no order as to costs for this application for leave to appeal.)

 

(Source 1: http://www.hk-lawyer.org/en/article.asp?articleid=1821&c=121)
(Source 2: http://www.hk-lawyer.org/tc/article.asp?articleid=1821&c=121)

Solicitor Stephen Finley Guilty of Professional Misconduct

Lawyer Stephen Finley Guilty of Professional Misconduct

According to: http://www.hk-lawyer.org/en/article.asp?articleid=1444&c=121

 

Hearing date: 19 December 2000; Tribunal Decision: 20 December 2000
On 20 December 2000, the Solicitors Disciplinary Tribunal found that the following complaint against the Respondent (Lawyer Stephen Finley) was proved on his own admission:

• Breach of r 8(2) of the Accountant's Report Rules for failing on or before 30 September 1999 to deliver to the Council an accountant's report for the financial period 1 April 1998 to 31 March 1999 for his firm of which the Respondent is the sole proprietor.

The Solicitors' Disciplinary Tribunal ordered that the Respondent (Solicitor Stephen Finley):

• be censured;
• pay a fine of $7,000;
• pay costs of and incidental to the proceedings on a full indemnity basis and such costs shall include but not limited to the costs of and incidental to the investigation by the Law Society, the costs of the Clerk to the Tribunal and the costs of the Prosecutor and such costs shall be taxed if not agreed.

 Mr Nicholas Hunsworth of Messrs Johnson Stokes & Master for the Applicant.
The Respondent in person.

Solicitor Sun Lup Chung (孫立忠律師) Guilty of Professional Misconduct

Lawyer Sun Lup Chung (孫立忠律師) Guilty of Professional Misconduct

According to: http://www.hk-lawyer.org/en/article.asp?articleid=429&c=121

Hearing date: 15 October 2010; Findings and order: 31 May 2011

The Solicitors Disciplinary Tribunal found the following breaches against the Respondent, Lawyer Sun Lup Chung (孫立忠律師), proved:

1. the Respondent, Solicitor Sun Lup Chung (孫立忠律師), at the material time being the handling solicitor in charge of the High Court Miscellaneous Proceedings No 3925 of 2002, entered into a contingency fee arrangement with his former client, contrary to Principle 4.16 of the Guide; and
2. as a result, conducted himself in such a way that compromised or impaired or was likely to compromise or impair his own reputation or the reputation of the profession, contrary to Rule 2(d) of the Solicitors’ Practice Rules.

The Tribunal ordered that the Respondent:

1. be censured;
2. be fined HK$10,000; and
3. pay the costs of these proceedings.

Mr Joseph Li of Messrs Joseph Li & Co for the Applicant.
The Respondent, Solicitor Sun Lup Chung (孫立忠律師), was absent.

陳詠鳴大律師被逐出辦公室 - Barrister Winnie Chan Evicted from Chambers

Counsel Winnie Chan Lost a Battle - 陳詠鳴大律師輸了一仗

DCCJ 5053/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5053 OF 2013

-------------------------------------

BETWEEN
	CHAN WING MING WINNIE	Plaintiff
and
	TSE WAH YUEN JOSEPH	1st Defendant
	CHAN CHUNG	2nd Defendant
	SUTHERLAND MARK RICHARD CARLTON	3rd Defendant
	WONG CHING YU EDWARD	4th Defendant
	HO CHING WAI DORIS	5th Defendant
	CHOW Y W KENNY	6th Defendant
	TIN SANKIE TRACY	7th Defendant

 

-------------------------------------

Before: His Honour Judge Alex Lee in Chambers

 

Date of Hearing: 2 January 2014

Date of Ruling: 15 January 2014

 

--------------------------------------

REASONS FOR RULING

--------------------------------------

.....

21.  Having considered the available evidence before me and the submissions of the plaintiff, I come to the view that the balance of convenience does not lie in favour of the granting of the interlocutory injunctions sought.  My reasons are as follows:-

(a) Now that the plaintiff has found a new set of chambers, she can continue her practice from the new address.  I can see no necessity for her to remain in the office premises in order to practice; and 

(b) That the plaintiff [Barrister Winnie Chan - 大律師陳詠鳴] is now in bad terms with all the other members of the Chambers can be gleaned from the fact that the latter voted unanimously to evict her.  Besides, the enthusiasm of the plaintiff to take part in running the Chambers has admittedly faded, even before her taking out of the present action.  In the circumstances, even if her continued presence in the Chambers may be, as the plaintiff contends, “non-intrusive”, it would not, in my view, be conducive to the proper running and healthy development of the Chambers and a harmonious work atmosphere there. 

Orders

 

22.  Based on the above, I dismiss the plaintiff’s application...

(See: http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=91037&currpage=T)

被逐出辦公室 女大狀陳詠鳴申禁令失敗

(2014年1月16日明報專訊)

資深大律師謝華淵 (Barrister Joseph Tse SC) 與7名大狀 (Counsel) 合租大律師辦公室 (Barristers' Chambers)，但疑與合租人之一的女大狀陳詠鳴 (Barrister Winnie Chan) 不咬弦，各人開會後按照事務所規則 (Chambers Rules)，一致決定「逐客」(Evict Her) 。陳早前入稟區院，要求宣布開除令無效，並申請臨時禁制令禁止執行開除令，昨遭法庭拒絕。

8大狀合租 謝華淵有份

謝華淵昨透過電話回應時沒有詳述紛爭，但指事件關乎各人「夾唔夾」。他指辦公室各同事一直遵守事務所規則，若各人以書面一致同意，可要求某成員離開，又指陳「喺度咁多年，話無同意過守則」。他稱陳於今年1月2日申請臨時禁制令失敗後，已搬離辦公室，房間稍後將有「新主人」。

原訴方陳詠鳴 (Counsel Winnie Chan) 與被告之一謝華淵 (Senior Counsel Joseph Tse) 等共8人，約於4年前合租中環中航集團大廈的單位作辦公室，2011年遷至金鐘遠東金融中心47樓。但陳與本案7名被告關係逐漸惡化，7名被告於去年7月2日一致通過，要求陳詠鳴於本年1月2日離開。

但陳指從未接受有關規則，要求法庭宣布開除令無效。她又申請臨時禁制令，禁止代表各人租用辦公室的公司執行開除令，及向陳發出雜費收據；又要求謝向大律師公會 (Bar Association) 表示不反對陳以上址為註冊地址。

不過，區院昨指出，陳於去年12月27日已向公會報上新的註冊地址，陳若認為新址不適合工作，大可再覓地方。相反，陳與眾被告關係破裂，「共處一室」亦難以和諧共事。區院認為臨時禁制令不會大大影響陳的利益，遂拒絕陳的申請。

【案件編號：DCCJ5053/13】

(See: http://news.sina.com.hk/news/20140116/-2-3166907/1.html)

Counsel Winnie Chan Sued Her Own Chambersmates - 陳詠鳴大律師告自己辦事處的同事

女大律師陳詠鳴 (Barrister Winnie Chan) 於 2011 年初，與七名大律師分租金鐘遠東金融中心的辦公室，但同年底陳與其他大律師開始就分租辦公室的問題出現爭坳，直至去年7月，7名大律師正式通知陳，要終止其租用辦公室的權利，並要求她於本月2日或之前遷出。

陳早前入稟區域法院，要求法庭發出禁制令，又要求法庭在正審前，發出臨時禁制令，防止各被告大律師終止其租用辦公室權利。但法院今頒下判詞，稱由於陳已找到新的辦公室，而且她與各被告關係惡劣，無必要再留在涉案辦公室，故拒絕發出臨時禁制令。　

原告陳詠鳴，控告資深大律師謝華淵、陳聰、Sutherland Mark Richard Carlton、王證瑜、何政慧、鄒賢和及田珊琪。

(See: http://hk.apple.nextmedia.com/realtime/news/20140115/52094176) (2014年1月15日蘋果即時新聞) (DCCJ 5053 / 2013 - HH Judge Alex Lee - 15 January 2014)

馮慶灝律師否認中環街頭非禮兩少女

男律師馮慶灝（31歲）涉嫌於去年7月凌晨，在中環街頭接連非禮兩名少女。  馮慶灝律師（31歲）否認兩項非禮罪名，今於東區法院受審。於診所任護士的女事主供稱，當晚正前往朋友的生日派對，行經威靈頓街與雲咸街交界時，遭一名男子伸手觸摸下體，同行女友人亦稱有同樣遭遇。

(See: http://news.sina.com.hk/news/20140115/-101-3166547/1.html) (2014 年1月15日星島) (See: http://hk.apple.nextmedia.com/realtime/news/20140115/52093296) (2014年1月15日蘋果)

CA Says the Omission of Counsel Keith C W Fung (馮振華大律師) "NOT ACCEPTABLE"

CA Says the Omission of Barrister Keith Fung (大律師馮振華) "NOT ACCEPTABLE"

SCMP (14 January 2014)

The Court of Appeal yesterday criticised a law firm (Raymond Kwong & Co Solicitors - 鄺志豪律師事務所) for failing to properly file court documents to inform the court that an action would be abandoned before a hearing, wasting judges' time in preparing for the case.

According to a judgment, law firm Raymond Kwong and Co (鄺志豪律師事務所) had used an outdated form to file a notice of abandonment to tell the court that its client would not seek permission to appeal against his conviction. It also failed to fill in the sentence imposed on its client and as a result the form was rejected by the High Court Registry. The client had decided to give up the action nine days before the scheduled day.

The three judges also criticised barrister Keith Fung (大律師馮振華) for not alerting the court when he knew of the firm's failure in filing the documents two days before the hearing. Fung told the court of his client's intention to pursue only the application for leave to appeal against sentence, but not against conviction, only on the day of the hearing.

"We found it astonishing that a firm of solicitors was unable to properly file a notice of abandonment on behalf of a client, particularly when an unrepresented applicant in custody has no difficulty in filing such a notice via the Correctional Services Department," said Mrs Justice Judianna Barnes Wai-ling. "Valuable judicial time was wasted."

The judgment involved Kamarulzaman Bin Annuar, who was jailed for three years for possessing HK$50 billion worth of fake US dollar bills and a bogus certificate of balance.

(See: http://www.scmp.com/news/hong-kong/article/1404859/appeal-court-judges-cross-about-law-firms-failures)

Hon Barnes J (giving the Reasons for Judgment of the Court):

29.  Barrister Mr Keith Fung (馮振華大律師) never sought to amend the grounds of appeal accordingly but merely abandoned ground 4b in his written submission.

30.  We made it clear to Barrister Mr Keith Fung (馮振華大律師) that what he had done was NOT ACCEPTABLE.  Counsel has a duty to file proper grounds of appeal.

(See: http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=91008&currpage=T)

CA Says Barrister C Y Li SC's Submissions "Absurd" (上訴庭說李秋源資深大律師的陳詞是荒謬的)

CA Says the Submissions of Senior Counsel Li Chau Yuen SC "Absurd" (上訴庭說李秋源資深大律師的陳詞是荒謬的)

HCMP 2409/2013
Before: Hon Kwan and Macrae JJA
Date of Decision: 9 January 2014 (paragraph 16)

(See: http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=91009&currpage=T)

Lawyer and Barrister Simon Westbrook SC (韋仕博 資深大律師) Said To Be Rude and Distasteful and Displaying Poor Advocacy

HKSAR v. KULEMESIN YURIY AND OTHERS (CACC19/2010)
Before: Hon Stock VP, Lunn JA and Saw J
Date of Judgment: 14 December 2011

Hon Stock VP:

496.  I wish to add some words of my own – with which the other members of the Court concur – about the conduct of the proceedings in the court below...

509.  The question pressed by Mr Westbrook [Senior Counsel Simon Westbrook of Des Voeux Chambers (DVC) (德輔大律師事務所)] was not a question; it was a comment.  But more significantly, the remark to the witness “I’m not interested in your explanation” was rudeness itself delivered by counsel clothed with the authority of his professional robes to a person in a wholly unequal position.  The judge should not have permitted it.  The witness should have been allowed to explain himself then and there; and the objection that prosecuting counsel was hectoring and simply upsetting the witness was an objection well-founded.

510.  Cross-examination of the type displayed in the passages I have reproduced, apart from constituting poor advocacy, is never permissible. It is not permissible in respect of any witness, let alone of a defendant facing a charge which, if proved, might deprive him of his liberty and ruin his career; let alone of a 62-year-old man of previous good character providing evidence in difficult circumstances and doing so in a perfectly courteous manner; a man who simply had to take the rudeness dished out to him.  This should never happen.  It is distasteful.


(Source: http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=79504&QS=%28The%2Bquestion%2Bpressed%2Bby%2BMr%2BWestbrook%2Bwas%2Bnot%2Ba%2Bquestion%29&TP=JU)

Lawyer and Senior Counsel Daniel Fung SC Found Guilty of Professional Misconduct - 馮華健資深大律師專業失當罪成

馮華健資深大律師專業失當罪成 - Lawyer and Senior Counsel Daniel Fung SC Found Guilty of Professional Misconduct

Barrister Daniel Fung SC (馮華健資深大律師), a Senior Counsel from Des Voeux Chambers (DVC - 德輔大律師事務所), was found guilty of professional misconduct on February 1 by the tribunal, chaired by Peter Ng Kar-fai SC. On June 2, he was censured and ordered to pay a penalty of HK$300,000.

He was found guilty of failing to inform the Court of Appeal in 2005 about clauses of a legislative provision that were unfavourable to his client, Hong Kong Island Development, in a tenancy lawsuit. The firm is a unit of New World Development Group. According to a note on the tribunal's judgment, Fung's failure to draw the court's attention to the point was contrary to the Bar's Code of Conduct. The full judgment has not been made public and the Bar Association says it is not its practice to do so.

(Source: http://www.scmp.com/article/719003/daniel-fung-panel-took-three-years-form)

 We wish to clarify the timing with the following chronology.

The report concerned disciplinary proceedings against Barrister and Lawyer Daniel Fung Wah Kin (馮華健資深大律師), a Senior Counsel from Des Voeux Chambers (DVC - 德輔大律師事務所), which arose from a Court of Appeal hearing in 2005.

Barrister and Lawyer Daniel Fung Wah Kin (資深大律師馮華健), a Senior Counsel from Des Voeux Chambers (DVC - 德輔大律師事務所), received a letter from the Bar Association dated October 27, 2006, informing him the Bar Council had decided the matter be inquired into by a Barristers Disciplinary Tribunal, and that it would be submitted to the tribunal convenor.

On May 2, 2007, Tong was requested by the Bar Association to set up the tribunal. He sent Daniel Fung SC (資深大律師馮華健) a notice dated June 5, 2007, informing him that a tribunal had been constituted, providing names of panel members including Peter Ng Kar-fai SC, who sat as its chairman.

On September 12, 2007, a directions hearing was held before the tribunal and the substantive hearing began on April 24, 2008.

Barrister and Lawyer Daniel Fung Wah Kin (馮華健資深大律師), a Senior Counsel from Des Voeux Chambers (DVC - 德輔大律師事務所), was found guilty of professional misconduct (專業失當罪成) by the tribunal on February 1, this year. He was censured and ordered to pay a penalty of HK$300,000 on June 2.

(Source: http://www.scmp.com/article/719306/corrections-clarifications)

曾昭穎律師贍養費暴減 - Maintenance for Solicitor Florence Tsang Drastically Reduced

Maintenance for Lawyer Florence Tsang Drastically Reduced - 曾昭穎律師贍養費暴減

佐敦恒豐酒店後人李德義，不滿前媳婦曾昭穎獲14.7億元贍養費，與兒子李建勤提出上訴，昨獲判得直。上訴庭認為贍養費應是4.41億元，令曾昭穎少收10億元。惟涉嫌在訴訟中偽造文件的李德義父子，未能推翻曾昭穎獲准協助警方調查，以及律政司可索取訴訟文件決定，仍一身蟻。

任職律師的曾昭穎於2008年與李建勤結束八年婚姻後，向前夫索取贍養費55億元，但李德義指兒子在日本東京的龐大資產，實際是父親所有，不屬婚姻資產，介入訴訟。上訴庭昨頒佈判詞指，日本的生意由李德義斥資展開，李德義有權以一美元購回有關股份，也嚴禁兒子擅自處理資產，加上他不想財產落入「另一男人的女兒」手上，原審法官以為李德義不會行使回購權是犯錯。

官判撇除65億日本資產

上訴庭認為，李建勤及曾昭穎只是替李德義打工，以換取非常高的生活水平，故將原審法官估值65億元的日本資產，從婚姻資產中扣除。上訴庭指，原審法官判曾昭穎可就其需要獲得5.24億元，已相當慷慨，上訴庭扣除她的8,274萬元資產後，認為贍養費應是4.41億元，再考慮她已從李德義取得2.02億元及將取回3,000萬元訟費，最終判她可獲約2.09億元。

李德義父子曾被指偽造一份2006年簽訂的可轉讓貸款協議，企圖剝奪曾昭穎贍養費，但有關爭議已在分產案前和解。上訴庭認為，曾昭穎在分產案中重提偽造指控是濫用程序，指李德義父子受到不公平對待，原審法官不應裁定二人偽造、發假誓及妨礙司法公正，故日後原審判詞公開時，有關裁決將會刪除。然而，原審法官將案轉介律政司調查，上訴庭認為並無不妥。對於律政司早前獲准索取有關文件，以及曾昭穎獲准披露有關資料協助調查，上訴庭駁回父子倆的上訴，但給二人21日期限，以提出上訴，或提出文件受法律專業特權保障而不得披露的申請。另外，上訴庭批准曾昭穎以未經刪改的原審判詞，在海外法庭執行判決。

CACV 154/2012 &

CACV 166/2012

(Heard together)

 

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 154 AND 166 OF 2012

(ON APPEAL FROM HCMC NO. 5 OF 2008)

_______________________

BETWEEN

	TCWF	Petitioner
	AND
	LKKS	Respondent
	AND
	STL	2ndIntervener
	OIL	3rd Intervener

 

Before: Hon Lam VP, Kwan and Barma JJA in Court

 

Dates of Hearing: 21 to 25 October 2013

Date of Judgment: 10 January 2014

 

______________________

J U D G M E N T

______________________

Hon Lam VP, Kwan JA and Barma JA:

 

... E. OUTCOME OF THE APPEALS AND CONSEQUENTIAL ORDERS

380.  For the reasons given above, we allow the appeal to this extent: we would set aside the award of the judge in favour of the wife and substitute it with an award in the net sum of HK$208.958 million.

This amount is arrived at by taking the wife’s needs as assessed by the judge (HK$524.5 million) and deducting from it the following amounts: HK$202.8 million (the amount already paid to the wife in partial satisfaction of the award by the judge); HK$79 million (the wife’s assets as assessed by the judge); HK$30 million (the amount of costs the wife is due to recover as assessed under section D.12); and HK$3.742 million (10% of the value of Hollywood Heights as decided under section D.13).  The sum should be payable forthwith.

381.  The parties have not advanced submissions before us on the question of interest.  We direct that written submissions on interest shall be lodged by the wife within 14 days of the handing down of this judgment and submissions from the husband and the father shall be lodged within 14 days thereafter.  Subject to other directions that may be given in the meantime, the court will determine the question of interest on paper.  We draw the attention of the parties to a recent Court of Appeal judgment in PLTO v KLK & Anr, CACV 157 of 2012, 4 July 2013, which may be of relevance.

382.  In respect of the challenges to the judge’s findings on forgery, perjury and conspiracy, we do not think our criticism of those findings warrant a retrial of the case.  Nor do we think it appropriate to set aside the referral to the DPP by the judge.  In an appeal, this court does not grant remedy by way of setting aside particular paragraph(s) in a judgment.  We shall consider the question of publication and redaction below.

383.  We dismiss the cross-appeal by the wife.

384.  As regards costs, though we do not agree with the husband and the father in terms of an order for retrial, they are substantially successful before us.  We make a costs order nisi that the wife shall pay the husband and the father 85% of the costs of the appeal and all the costs of the cross-appeal, such costs shall be taxed if not agreed.  We give a certificate of two counsel in respect of the husband, and likewise for the father.

~~~~~~~~
SCMP, Friday, 10 January, 2014

The Court of Appeal yesterday slashed by two-thirds a record HK$1.4 billion divorce settlement granted to a property tycoon's ex-wife, ruling she should receive HK$411 million. The ruling followed a successful appeal by the husband and his billionaire father.

It said that Florence Tsang Chiu-wing, 39, a solicitor, needs HK$524.5 million to fund the lifestyle she enjoyed during her marriage with Samathur Li Kin-kan, 40. Li is the son of Samuel Tak Lee, the head of Prudential Enterprise, which has vast global real estate investments and owns the Prudential Hotel in Nathan Road, Jordan.

The panel of three judges ruled the lower court was wrong to have included the son's multibillion-dollar property business in Japan, which was developed with seed funds from the father, who has the right to buy back the business at US$1.

The lower court had wrongly granted Tsang HK$1.4 billion on a "sharing principle", giving her 20 per cent of the couple's total assets, which included Li's HK$7.3 billion, the judges found.

The case attracted extensive media coverage during the hearings in 2011 and gave the public a rare glimpse into the extravagance of the seriously rich. The court heard how Li lavished more than HK$100 million a year on himself and at one point had a Boeing business jet, two yachts, 28 cars and millions of dollars' worth of wine.

The couple's eight-year marriage broke down in 2008 after Tsang refused her husband's demand for an abortion, then discovered he was having an affair.

The HK$524.5 million the lower court adjudged that Tsang needed included HK$250 million for a property in Hong Kong, HK$30 million for a property in London, HK$2.5 million to buy two cars in Hong Kong and another HK$1 million for a car in London.

The court also allowed HK$5 million to buy a yacht and HK$4.6 million to enable Tsang to join clubs in Hong Kong and England.

The appeal court said that as the wife had her own assets, the ex-husband would only need to give her HK$411 million.

Deducting the HK$202.8 million that he had already paid her, Li now needed to pay her a further HK$208 million, the court said.

The appeal court also reversed a finding by the trial judge, Mr Justice John Saunders, that Li and his father had committed forgery, perjury and conspiracy. Saunders used the civil rather than the criminal standard of proof to find that it was more likely than not that the two had committed the misconduct.
They were said to have forged a loan agreement to transfer virtually all of the son's assets to the father to frustrate Tsang's claim.

But the Court of Appeal would not set aside Saunders' referral of the case to the Director of Public Prosecutions to decide whether a criminal investigation should be conducted.

"In referring the matter to the DPP, the court is not ordering him to act or expecting him to act in any particular way," the court said, adding that the referral was no different from one made by an ordinary citizen.

"Whether they were guilty of such misconduct is not a question this court should attempt to answer in this judgment," the judges wrote.

The substantial reduction in the award was the result of the appeal court's ruling that the son's Japanese business, which includes 13 buildings in Tokyo, should be excluded from the calculation.

Much of Li's wealth was tied up in property in Japan, including shops rented by brands such as Prada, Audi, H&M and Zara.

The court had heard that the father gave his son a gift of US$47.3 million as seed funds to develop the Japanese business and that there is an agreement between the two that the father would have the right to buy back shares of the business at a nominal price.

The judges said the lower court had failed to take account the father's right to buy back the shares.
~~~~~~~~

Details of TSANG & CO., FLORENCE
Name (English)	TSANG & CO., FLORENCE
Address (English)	301, 3/F., GOLDEN STAR BUILDING, 20-24 LOCKHART ROAD, WANCHAI, HONG KONG
Address (Chinese)	香港灣仔駱克道20-24號 金星大廈3樓301室
Telephone	2381-1689
Fax	2525-8893
DX No.	NIL
E-mail	ftsangco@gmail.com
Staff
Sole Proprietor	TSANG CHIU WING, FLORENCE 曾昭穎

(Source 1: http://hk.apple.nextmedia.com/news/art/20140111/18588043)
(Source 2: http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=90979&currpage=T)
(Source 3: http://www.scmp.com/news/hong-kong/article/1402308/court-slashes-record-divorce-payout-property-scions-ex-wife)
(Source 4: http://www.hklawsoc.org.hk/pub_e/memberlawlist/member_firm.asp?id=163074)

Lawyer Hylas Chung (鍾元富大律師) 被法官狠批「做法不專業，損人不利己」

鍾元富大律師 (Counsel Hylas Chung) 被法官狠批「做法不專業，損人不利己」(Unprofessional, Harmed Others And Did Not Benefit Self)

香港特別行政區 訴 袁郁鈞 (Reported in: [2007] 1 HKLRD 819) HCMA730/2006 (裁判日期：2007年1月23日)

http://legalref.judiciary.gov.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=55815&QS=%2B&TP=JU

「上訴人的大律師鍾元富大律師 (Barrister Hylas Chung) 本身對刑事審訊接納證據的基本法則一知半解，胡亂指控聆訊時代表上訴人的大律師不稱職，不切實際地提昇上訴人對成功上訴的期望、做法不專業，損人不利己 (Unprofessional, Harmed Others And Did Not Benefit Self)，
絕對不值得鼓勵或仿效 (Utterly Should Never Be Encouraged Or Imitated。」 - 高等法院原訟法庭暫委法官潘敏琦 (Deputy High Court Judge Maggie Poon)

Source: http://www.uwants.com/viewthread.php?tid=15432730  and http://hknewsarchives.blogspot.hk/2013/08/barrister-hylas-chung.html

楊潤康律師 (SOLICITOR YEONG YUN HONG, GARY) 及羅婉清律師 (SOLICITOR LO YUEN CHING, JULIANA) 被控「包攬訴訟」

楊潤康律師 (SOLICITOR YEONG YUN HONG, GARY)及其妻子羅婉清律師 (SOLICITOR LO YUEN CHING, JULIANA) 涉嫌聯同一名顧問在26宗交通及工傷意外的民事索償中「包攬訴訟」，當中涉及的賠償金達700多萬元。44歲次被告楊潤康及其妻子即第三被告49歲的羅婉清均為律師，亦同是「楊潤康律師行」(YEONG & CO. SOLICITORS) 合夥人。三人共被控以26項分享訴訟成果罪。

(Source: http://hk.on.cc/hk/bkn/cnt/news/20140106/bkn-20140106121129583-0106_00822_001.html)

(Source: http://hk.apple.nextmedia.com/realtime/news/20140106/52062638)

法官指跛榮疑串謀律師陳鑑清偽造轉讓契望律政司跟進

Judge Suspected Lawyer and Solicitor John Chan (CHAN KAM CHING, JOHN BARRY) To Have Conspired With The Defendant To Forge Document And Hoped The Department of Justice Would Follow This Up - 法官指跛榮疑串謀陳鑑清律師偽造轉讓契望律政司跟進

2013年12月12日 - 蘋果日報

屯門有勢力人士、綽號「跛榮」的楊小坑村代表沈建榮，偕妻子於五年間以銀行戶口洗黑錢1,285萬元。沈建榮昨日被重判入獄5年；但法官基於其妻角色被動，指她受丈夫過份影響下犯案，輕判她囚20個月，緩刑30個月。法官指沈建榮疑串謀一名律師造假文件及假交易，認為律師有串謀欺詐之嫌，希望律政司跟進。

曾是江湖猛人、其後改邪歸正信了耶穌的洪漢義，昨到區域法院旁聽。他表示跟沈建榮認識多年，沈做正當生意，對判刑感詫異。

被告沈建榮（51歲）有八次案底，其妻黎綺琴（49歲）則有一次不誠實罪行紀錄。二人早前被裁定於2006年至2011年間，干犯四項洗黑錢罪。聆訊其間，劉皇發曾以辯方證人身份出庭。

法官指本案審訊30多天，被告沒節省法庭時間，不會減刑，更直指看過辯方呈上的求情信，認為「冇用」。涉案黑錢過千萬，部份來自澳門，涉及跨境元素，罪行嚴重。

法官指沈疑串謀律師陳鑑清 (Lawyer and Solicitor John K C Chan) 偽造轉讓契及加以使用，不但對銀行有影響，更影響土地註冊處的資料。案件編號：DCCC175/13

(Source: http://hk.apple.nextmedia.com/news/art/20131212/18547370)

哎呀！做乜唔吹，吹咗佢！

張人龍兒子金銀業貿易場理事長張德熙　駕法拉利超速越線　
涉拒提交呼氣樣本受審

2014年1月3日 - 蘋果日報

金銀業貿易場理事長張德熙，深夜駕駛法拉利行經香港島黃泥涌峽道時，超速26公里，兼轉彎時越過雙白線。警員即場替張德熙進行呼氣測試，發現他的酒精含量超標兩倍；其後張德熙涉嫌返回警署後，卻拒絕作第二次呼氣測試。張德熙昨天否認沒有提供呼氣樣本罪受審，辯方指出，張德熙希望在律師陪同下作測試，等待律師到場後已經即時要求吹大機，卻遭到警長拒絕。

被告張德熙（61歲）為前立法局議員張人龍的兒子，並且擔任新界總商會會長等多項職務。他昨天雖然在東區裁判法院承認超速駕駛和橫越雙白線共兩罪，但是否認沒有提供呼氣樣本罪。

首次酒精測試超標

案情指出，在去年9月21日凌晨1時半，警方在香港島黃泥涌峽道進行雷射槍偵測車速行動，並且設置路障，對行車司機進行抽樣酒精呼氣測試。

被告張德熙沿着黃泥涌峽道南行左二線駕駛法拉利時，警員發現法拉利車身搖晃，轉彎時更越過雙白線，時速高達76公里，超出該段道路的50公里車速限制。

警員截停張德熙，替他進行酒精呼氣測試，發現內含55微克酒精，超出法例訂明每100毫升呼氣含22微克的標準。

警員張毅輝在庭上供稱，他在現場拘捕被告，帶返跑馬地警署，協助一名警長替被告作第二次呼氣測試。其間，被告表示要等代表律師到場才肯作測試。

警長雖然提醒被告，第二次呼氣測試須在75分鐘內進行，並指拒絕提交呼氣樣本的刑罰，較醉駕更重，但是被告仍然拒絕。警長於是要求被告簽署文件，確認拒絕提供呼氣樣本.

願意再測試時遭拒

辯方盤問警員張毅輝時指出，被告在簽署文件前，其代表大律師周凱靈 (Barrister Juliana H L Chow) 已經抵達警署，等候見被告。張毅輝回應，在該段時間沒有見過周凱靈。

辯方續指，當大律師周凱靈 (Counsel Juliana Chow) 進入調查室後，即時指示被告張德熙謂：「哎呀！做乜唔吹，吹咗佢！」被告張德熙亦表示願意再作測試，惟警長以被告已簽署確認文件為由拒絕，張毅輝同意此說法。案件押後至本月14日續審。案件編號：ESCC3580/13

(Source: http://hk.apple.nextmedia.com/news/art/20140103/18577159)