As long-term supporters of the sport of rugby in Hong Kong, we are very pleased to extend our support this year to the mini rugby players. Each new player of the 21 mini rugby clubs in Hong Kong will this year be offered a specially designed rugby ball to enable them to practise their skills using open spaces in district parks with their friends outside of usual club training hours.

Mini rugby really is a game for all; increasing motor skills in young people; fostering a love and respect for sport; and improving lifetime health.

On Sunday 18 September, Mark Side and Natalie Lam of Tanner De Witt with Jim Leung, Chairman of the Minis, attended the Tuen Mun Sharks Mini Rugby Festival near the Gold Coast to distribute the first 500 of these balls. To our knowledge this is the first time this initiative has been part of the annual mini rugby scene and we hope it continues. The response has been overwhelmingly positive which is proof of the extended enthusiasm the players have for their sport and the community atmosphere of the well-attended festival was a great experience for all.

Working together with HKMRFU we designed this size 3 ball using the colours of many of the active clubs to produce a vibrant, unisex ball. We hope this increases passion for the sport.

If you would like your children to join mini rugby, please contact Brandon Huang, HKRU Head of Community & Development at bin.huang@hkrugby.com. Clubs welcome members throughout the season. Please visit the Hong Kong Mini Rugby Website to find your local club.

For more information about our community and sporting efforts, please visit our Community page.

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This September we welcome three new lawyers to join our 2016 trainee programme. Tara Chan, Kevin Siu and Hayley Hui were selected from a strong pool of candidates to complete their two year training programme under the guidance of the Tanner De Witt team in order to qualify as Hong Kong solicitors in 2018.

Canadian born Tara Chan graduated from McGill University before moving to Hong Kong to earn her JD and PCLL from the City University of Hong Kong. During this time Tara had the opportunity to study European Competition Law at University College, Oxford University. Tara is a native English and French speaker and also proficient in Spanish using these languages in her frequent travels; she has travelled to all the continents of the world except Antarctica.

Hong Kong born Kevin Siu obtained his Bachelor degrees and PCLL from the University of Hong Kong. A native English and Cantonese speaker, Kevin’s major interest outside of work is Chinese literature. He can read and write poetry and prose in both classical and vernacular Chinese and has a good command of the Confucian classics. When Kevin isn’t immersed in literature he is a keen swimmer.

Joining Tara and Kevin is Hayley Hui who was a classmate of Kevin, also receiving her Bachelor degrees and PCLL from the University of Hong Kong. She is a keen sportswoman having tried her hand at abseiling, rock climbing, wake boarding and skydiving this year. Hayley begins her trainee rotation programme assisting the Family and Private Client Practice; Tara joins the Corporate and Commercial Practice; Kevin supports the Insolvency and Restructuring team.

For updates on roles and positions available at Tanner De Witt please visit our Careers page.

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Tanner De Witt was extremely proud to sponsor and participate in the 13th Fatboy 10s Rugby Tournament held in the Philippines in September this year. The goal of this tournament is to raise awareness of the sport of rugby in the Philippines and also to raise money to support good causes in the local community including medical missions to underprivileged areas. Both of these targets were achieved this year as noted by Alun Grassick, Chairman of competing team The Pot Bellied Pigs RFC: “It was clear from the rugby on the Saturday that the standard of rugby in the Philippines across all teams is much higher than it was, say, four years ago.  This was evidenced by the fact that the top eight teams in the tournament were all based in the Philippines!”

Having raised in excess of US$110,000 (final figure to be confirmed) for these local causes, the teams also had a lot of fun under the heat of the South East Asian sun, some also enjoying a day of golf the day before the tournament.

Lito Ramirez – Poster Boy for Phillippines Rugby in Hong Kong

Another success story to come of this initiative is 21 year old Lito Ramirez who has scored tries at Hong Kong Stadium enjoying fame as the first home grown player to represent the Philippines at last year’s Olympic Sevens Rugby qualifiers in Hong Kong; Lito is a direct beneficiary of the work and commitment of the members of the Fatboys community and a symbol of the good work they do. For the full SCMP article, please read Saved from the dark side: how Hong Kong’s rugby ‘Pigs’ are giving Philippine street kids a chance.

For more information on our work with the community both here and in the region, please contact us.

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Tanner De Witt is delighted to announce that Partner Jeff Lane won Matter of the Year Accent Delight International Ltd v Bouvier, Yves Charles Edgar at the asialaw Dispute Resolution Awards 2016 held last night at the Island Shangri La in Hong Kong.

Litigators and Tanner De Witt Partners Mark Side, Robin Darton, Pamela Mak and Jeff Lane attended this year’s awards dinner where it was announced that Jeff’s art fraud case was this year voted the most interesting and complex matter in Asia for 2016.

The jurisdictions involved in this multi-currency fraud where monies were traced through international bank networks were Monaco, Switzerland, Hong Kong, Luxembourg, Singapore and France and the international press reported on this case in detail. See:

Article: The Bouvier Affair – The New Yorker

Article: Swiss Businessman Yves Bouvier arrested for art fraud – The Telegraph

Please visit our Fraud and Asset Tracing practice page for more information.

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Tanner De Witt Partner Kim Boreham helps to promote women’s rugby in Hong Kong in her position as Hong Kong Rugby Union (HKRU) director of women’s rugby as published in the South China Morning Post.

Excerpt from SCMP article:

The Hong Kong Women’s Premiership is looking to use its first stand alone corporate partnership – a three-year deal with KPMG – to increase the profile of the women’s game in Hong Kong.

As a result of the partnership announced this week, coaches will have access to the company’s state-of-the-art Insights Centre for post-match reviews and there will be opportunities for players through an internship programme.

“Having a partner of the calibre of KPMG is a huge boost for the profile of women’s rugby in Hong Kong,” Hong Kong Rugby Union (HKRU) director of women’s rugby Kim Boreham said.

“It is the first time that the women’s rugby league has actually had its own corporate partnership and that is a testament to the strength and increasing profile of women’s rugby in Hong Kong.”

Click for full article All the bells and whistles: Hong Kong Women’s Premiership signs first-ever stand alone corporate partnership.

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Background

Previous situation

• Enforcement of foreign judgments in Hong Kong is ordinarily governed by the Foreign Judgments (Reciprocal Enforcement) Ordinance. Following the handover in 1997 however, China is no longer considered a foreign country by Hong Kong, therefore this ordinance is no longer applicable when enforcing Mainland judgments.
• Post-handover, judgments given by Mainland courts requiring payment of money could only be recognised and enforced in Hong Kong by beginning a new action in debt at common law, which proceedings were often time consuming and involved high legal costs.
• The Mainland had a similar law pre-handover in Article 281 of the Civil Procedure Law of the PRC, which became inapplicable once Hong Kong became a Special Administrative Region.

The new arrangement

• On 14 July 2006, ‘The Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region Pursuant to Choice of Court Agreements between Parties Concerned’ was signed between the Department of Justice and the Supreme People’s Court in the Mainland
• The Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap. 597) gave effect to the arrangement from 2008.

How does reciprocal enforcement work?

• The Ordinance is modelled on the Foreign Judgment (Reciprocal Enforcement) Ordinance (Cap. 319)
• Enforcement is by way of registration of money judgments
• A registered Mainland judgment has the same force as a judgment originally given by the Court of First Instance and entered on the date of registration

Conditions of registration under the Ordinance

Commercial contracts

• The Ordinance only applies to enforcement of money judgments on disputes arising out of commercial contracts
• Non-commercial contracts such as matrimonial and employment contracts are excluded
• Sino-foreign joint-venture disputes are also excluded because they fall within the exclusive jurisdiction of the Mainland courts

Valid agreement on choice of Hong Kong court or choice of Mainland court

• The underlying commercial contracts must contain valid ‘choice of Hong Kong Court agreement’ or ‘choice of Mainland court agreement’
• The choice of court agreement has to be made after the commencement of the Ordinance

Money judgments from a designated court

• Judgments to be registered must be money judgments not in respect of payment of tax, fine or penalty
• Costs orders and allocaturs are registrable In Hong Kong, only Mainland judgments from designated courts (namely the Supreme People’s Court, a Higher People’s Court, an Intermediate People’s Court or a recognised Basic People’s Court) are recognised
• In the Mainland, money judgments from any Hong Kong court are recognised

Final and conclusive judgments

• The judgment to be enforced has to be final and conclusive and is given after the commencement of the Ordinance
• In Hong Kong, a certificate from the Mainland court is required on finality of the judgment
• In the Mainland, (i) a copy of the judgment in Hong Kong certified by a Hong Kong court and (ii) a certificate to certify the judgment is enforceable by way of execution in Hong Kong are required

When to apply for registration

Short limitation period

• Within 2 years
• Limitation period starts running from the last day of the specified period within which the judgment ought to have been performed; or, in any other case, from the date from which the judgment takes effect.

Where to apply for registration

Registration of Mainland judgments in Hong Kong

• Court of First Instance

Registration of Hong Kong judgments in the Mainland

• Jurisdiction lies with the courts of the respondent’s domicile or ordinary residence and also with the courts of any place where the respondent has property
• the applicant must elect to file in only one such court

Grounds for setting aside a registered Mainland judgment in Hong Kong

11 grounds are specified in the Ordinance; they include:-

• the Mainland judgment is not a judgment of a designated court under the Ordinance
• the choice of Mainland court agreement is not valid
• the judgment has been wholly satisfied
• the Hong Kong courts have exclusive jurisdiction over the matter
• the judgment was obtained by fraud
• enforcement of the judgment is contrary to public policy
• the judgment is reversed or set aside pursuant to an appeal or a retrial under the laws of the Mainland

Recent developments

The effect of the Ordinance has recently been tested in High Court Miscellaneous Proceedings No. 2080 of 2015. The Plaintiff was seeking to enforce in Hong Kong a judgment (the Mainland Judgment) granted in his favour in the Shenzhen Intermediate People’s Court (the Shenzhen Court). Prior to this the Plaintiff had obtained a certificate from the Shenzhen Court that the Mainland Judgment was final and enforceable in the Mainland. The Plaintiff was then able to obtain an order from the Hong Kong High Court to register parts of the Mainland Judgment pursuant to the Ordinance. The 5th Defendant later claimed that the 1st Defendant had applied to the Shenzhen Court to set aside the enforcement order and that while that application was pending, the Mainland Judgment should not be enforced in Hong Kong.

The Court held that the onus was on the defendants to prove that the Mainland Judgment was not final and enforceable, and that an application to set aside the enforcement certificate of the Shenzhen Court was pending was not enough to do so. In any event, in this case the time to appeal the Mainland Judgment had lapsed. The application to set aside the order was dismissed with costs.

Pursuant to section 25(1) of the Ordinance, on 25 July 2014 the Supreme People’s Court updated and gazetted the list of Basic People’s Courts authorised to exercise jurisdiction of the first instance in commercial and civil cases involving Hong Kong judgments, which was subsequently incorporated into the Ordinance.

The list can be found here: http://www.doj.gov.hk/eng/topical/pdf/egn201418304289.pdf.

Pamela Mak / Elizabeth Seymour-Jones

For further information, please contact:

Pamela Mak
Partner | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

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Tanner De Witt Partner Jeff Lane gave a presentation to the Hong Kong office of Zhong Lun Law Firm on Wednesday 5 October 2016. The talk was arranged with Dorothy Siron who heads up Zhong Lun’s Litigation and Dispute Resolution practice and the topic was Internet Fraud: Recognition, Reaction, Resolution. Jeff’s lunchtime talk was very well received and was awarded a continuing professional development point by The Law Society of Hong Kong.

With a very palpable increase in recent times in the frequency of CEO fraud, identity theft and boiler house fraud, we are receiving an increasing number of requests for legal assistance. The victims are not just those directly affected but the banks and other third parties. However with the application of Norwich Pharmacal Orders and Mareva Injunctions, funds can be recovered. This requires legal assistance. For more information see our Commercial Fraud and Asset Tracing page.

See also: Identity theft: how to best handle the situation.

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Tanner De Witt Restructuring and Insolvency Associate Rachel Hui was selected as one of three young delegates sponsored to represent The Law Society of Hong Kong (the “Law Society”) at the International Bar Association (“IBA”) Annual Conference in Washington D.C. from 18 to 23 September 2016.

During the conference, Rachel assisted The Law Society, including immediate past president Stephen Hung, council members Huen Wong and Denis Brock, in hosting a breakfast information session “Hong Kong: A borderless Trade and Investment for “Going Global”.

About the IBA and the annual conference

The IBA is one of the pre-eminent associations of lawyers in the World. This year the annual conference was attended by more than 6,000 delegates from more than 100 jurisdictions, including private practitioners, judge, academics as well as representatives from national bar associations and law societies. The weeklong conference provides legal practitioners with an opportunity to network and enhance their legal knowledge through more than 200 substantive legal sessions, workshops and panels.

Keynote speakers at this year’s IBA annual conference included Managing Director of the International Monetary Fund Christine Lagarde; retired Secretary of State General Colin Powell; Supreme Court of the United States Justice Anthony M Kennedy; US Attorney General Loretta Lynch; former British Foreign Secretary Rt.Hon. Jack Straw; former FBI head Robert Mueller III and immediate past Chairman of the Board of Governors of the Federal Reserve System (Fed) Ben Bernanke.

About Rachel Hui

Rachel Hui is an associate in Tanner De Witt’s Insolvency and Restructuring department. Her notable cases include acting for Kaisa Group Holdings Limited in its 2016 parallel and inter-conditional Cayman Island and Hong Kong scheme of arrangement.

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In the recent appeal case of HKSAR v Ngo Van Nam CACC 418/2014, the Court of Appeal set down new guidelines for determining the amount of discount in sentence to be given to a defendant for a guilty plea.  Prior to this decision a defendant received a one third discount on sentence for a guilty plea entered at any time up to the start of the trial.  The amount of discount will now be restricted and will depend upon the stage the proceedings have reached at the time the guilty plea is tendered.

The New Guidelines

The one third discount entitlement is now limited to those guilty pleas entered on the first occasion the defendant is required to tender a plea.  If a not guilty plea is entered and a trial date is fixed then the full discount is lost.  If the defendant later pleads guilty before trial the discount will be lower and will range downwards from 25% to 20%.  For pleas of guilty made on the first day of trial, the discount is 20% and if a guilty plea is tendered after the trial has started, the discount will be less than 20%.

Tendering the plea

All criminal cases, no matter how serious, will begin in the Magistrates’ Court.   The serious cases are later transferred to the District Court or committed to the High Court to be heard.

In those cases that remain in the Magistrates’ Court it is the responsibility of the prosecution to inform the Court when they are ready for plea to be taken.  The defendant will then be asked to tender his plea.

In a District Court case the Defendant is usually asked to tender a plea on the first occasion the case is before the District Court.

With High Court cases, the procedure is slightly different.  The defendant is asked to tender a plea to the Magistrate at the hearing when the Magistrate formally “commits” the case up to the High Court.

Comment

The test our common law criminal system applies to the question of ‘guilt’ is whether the prosecution has proved its case beyond a reasonable doubt.  There are many instances where a defendant is not sure about his guilt.  A defendant in the Magistrates’ Court is provided with legal advice through the Duty Lawyer Service if they cannot afford a private lawyer.  A defendant is also entitled to full disclosure of the evidence the prosecution will rely on to prove its case.  It should follow that a defendant and his lawyer should have full disclosure of evidence before the defendant is asked to tender plea.

Full disclosure is rarely available at the first hearing of a case before the Magistrate.  However, pleas were frequently requested and entered simply on the defendants’ instructions.  Unless the plea at the time was unequivocal the defendant was usually told to plead not guilty.  This was fine when the defendant could later on, upon receipt of full disclosure and legal advice, change the plea without penalty.

The entering of a plea without sight of the evidence is not likely in the District Court nor in the High Court as the defendant will have received full disclosure before the case is transferred or committed.  Indeed it is a condition that the Defendant must have received disclosure at least 7 days before.

The Magistracy can now expect many applications from the defence to adjourn cases prior to plea for provision of full disclosure of the prosecution case.  It is possible for defence solicitors to apply for disclosure to the police as soon as a suspect is charged.   Disclosure may then be available at the first hearing.  However most defendants use the Duty Lawyer Service at court and the Service only receives papers on the morning of the first appearance.  The DLS will not have disclosure of evidence upon which to advise the defendant on plea.

Defendants will now be demanding advice from defence counsel on plea at an early stage.  Counsel will be unable to discharge their professional duty in that regard without full disclosure.  This new guideline may also place an expectation on the prosecution to provide full disclosure before declaring they are ready for plea to be taken.

Conclusion

The new guidelines will result in more applications to adjourn cases for disclosure of evidence.  It is to be hoped that those applications will be fairly considered to ensure a defendant is not forced into entering a plea.

It is also hoped that the Court will not draw a distinction between defendants who plead guilty after receiving legal advice on the prosecution’s evidence and those that insist to plead guilty without disclosure of the prosecution’s case.

It should be noted that the police will, or should have, their evidence together before they charge, so the provision of that copy evidence to the defence will not add to the preparation and administration of the case.

For further information, please contact:

Philip Swainston
Consultant | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

The post The new sentencing guidelines on a discount in sentence for a guilty plea appeared first on Tanner De Witt Solicitors, Law Firm Hong Kong.

Litigation and Dispute Resolution Partner Mark Side and Insolvency and Restructuring Partner Robin Darton met Fiji Rugby Sevens head coach on Sunday 16 October at the Sandy Bay Mini Rugby training session. Former coach of the England Rugby Sevens team Ben Ryan was in Hong Kong to speak at the 2017 Cathay Pacific Hong Kong Rugby Sevens Long Lunch held at the Grand Hyatt on Friday 14 October.

Ben Ryan coached Fiji to win the gold medal at the Men’s Rugby Sevens at the 2016 Rio Olympics.

For more information about Tanner De Witt’s involvement in rugby see these recent articles:

Tanner De Witt proud to sponsor Hong Kong Rugby’s Domestic League Referees
Tanner De Witt supports the 2016-17 season of Mini Rugby in Hong Kong
Raising money for Phillippines charity at 13th Fatboy 10s Rugby Tournament 2016
Partner Kim Boreham helps promote Women’s Rugby in Hong Kong

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Tanner De Witt’s Anthony Marrin has been selected for the CHK Sportsroad Dragons team to represent Hong Kong in the upcoming cricket East Asia Cup from 2 – 7 November 2016 in Sano, Japan. The East Asia Cup is a T20 tournament and will also feature national teams from Japan, Korea and China.

Founded and managed by Cricket Hong Kong, the CHK Sportsroad Dragons is Hong Kong’s all-Chinese representative team. In May 2016, leading local sports website Sportsroad started sponsoring the team. Apart from competing in the local Elite League, CHK Sportsroad Dragons also competes in international tournaments, such as the upcoming East Asia Cup.

Visit the tournament website here.

About Anthony Marrin

Prior to joining Tanner De Witt in May 2015, Anthony practiced as a solicitor in the commercial litigation team of a domestic law firm. Anthony holds an LLB from the University of Nottingham in the UK and a PCLL from the Chinese University of Hong Kong. He qualified as a solicitor in Hong Kong in 2012. Anthony is fluent in English, Cantonese and Mandarin and can read and write both simplified and traditional Chinese.

Anthony has experience in a broad aspect of litigation matters including shareholders’ disputes, sale of goods disputes, debt collection, liquor licensing, commercial fraud and building disputes. Anthony also has experience in applying for urgent asset freezing injunction orders and interim relief in aid of overseas legal proceedings. Anthony works closely with consultant Philip Swainston on criminal matters from time to time.

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Tanner De Witt Senior Associate and Italian native Federico Donnet is serving on the formal committee to Bellissima Italia  – a festival of Italian culture and lifestyle – alongside other notable Hong Kong figures including Miss Sabrina Ho, Miss Charmaine Ho and Miss Queenie Rosita Law.

Federico will provide support to this initiative set up to promote Italian trade, culture and products within Hong Kong and Macau. Building a bridge between the nations across continents, the committee is tasked with running events and activities that inspire and motivate. The Bellissima Italia festival is coordinated by the Italian Consulate General in Hong Kong and is dedicated to ‘Made in Italy’ products; a brand synonymous with quality and glamour.

Along with the Italian Consulate General, the Istituto Italiano Di Cultura, the Italian Chamber of Commerce, the Chiu Yeng Culture Centre and media partner Dynamic Network Alliance all work together to make this initiative a success.

See Federico’s profile here and contact us for more information.

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Caroline joined Tanner De Witt in 2012 and is building a name for herself in the mid cap acquisition space. She has experience across a wide range of industries including luxury fashion, healthcare, technology, F&B and retail.

Why did you choose to become a lawyer?

I grew up around lawyers and I think that has, to some degree, influenced my own decision to study law at university and to practise law.

Law is an interesting subject for me and it is a discipline that is constantly evolving to reflect changes in the wider economy and society as a whole.  For example, two decades years ago, mobile commerce did not really exist in the mainstream, but now it is everywhere and the law, as well as lawyers, must adapt to keep up with advances in technology.  All in all this makes for an interesting and varied career.

Describe a typical day at work.

I am a morning person by nature, so I generally like to start my day early by catching up on the latest local and international news, checking my emails and my diary for the day.  I adjust my work schedule daily if urgent matters crop up or the deadlines change.  Beyond that there really is no such thing as a typical day at work because I could be doing anything from negotiating the terms of a major acquisition at 4 a.m. to writing a legal opinion on loan finance documentation.

What part of being a lawyer do you personally find most satisfying?  Most challenging?

As a lawyer, I get to work for and with all kinds of people from all walks of life and different countries, which I personally think is great.

In a perfect world, everything will always go smoothly and according to plan.  However, in reality things sometimes do not go entirely according to plan for reasons wholly outside your control and you have to be prepared to react to such situations as and when they arise and be able to come up with workable solution.  This is true even in the legal profession. Such challenges keep the work interesting and, ultimately when you successfully pull off the contingency plan, make it extremely rewarding.

Being a lawyer can be stressful at times, how do you maintain a good work-life balance?

I am fortunate to work with a great team of people here at Tanner De Witt, which as almost everyone will tell you, is a major motivator.
I also believe that in order to be a good lawyer and to perform to the best of one’s abilities, one needs to have quality downtime to fully unwind.  I love yoga, fine dining, travel and spending time with my family (though, in case anyone is wondering, not necessarily in that order).  I also have a fantastic personal trainer who puts me through my paces every week.

What’s the best piece of advice you have ever received during your legal career?

A valuable piece of advice I have been given in the past is to take a step back and look at the bigger picture because it can be all too easy to get distracted by the smaller details.  Clients often do not need (nor want) a watertight contract- they just need to know and be advised of the risks, so that they can make a decision.  I think this advice is highly relevant in almost any business context.

If you had not become a lawyer, what other professions would you have considered?

I would probably be working in the fashion industry.  Between university and qualifying as a lawyer, I spent time working in the fashion arm of a multinational conglomerate, which was a wonderful and valuable experience for a fresh graduate.

You may find out more about Caroline here.

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Introduction

The Hong Kong Police Force recently reviewed procedures for the handling of cases involving breach of an Injunction Order with an authorisation of arrest attached made under the Domestic and Cohabitation Relationships Violence Ordinance (Cap 189) (“DCRVO”).

Injunction order

Section 3 of the DCRVO provides that if the District Court is satisfied that the applicant or a specified minor of the applicant has been molested by the spouse or former spouse of the applicant, the Court may grant an injunction containing:

1. a provision restraining the respondent from molesting the applicant;
2. or from molesting a specified minor;
3. a provision prohibiting the respondent from entering or remaining in the residence of the applicant; or a specified part of the residence; or a specified area whether or not the residence of the applicant is in that area (the residence does not have to be the common residence or matrimonial home of the applicant and the respondent);
4. a provision requiring the respondent to permit the applicant to enter and remain in the common residence or matrimonial home.

Under Section 3A the Court may grant an injunction against a relative of the applicant, and Section 3A(2) provides a long definition of who is a “relative”.

Cohabitants

Section 3B extends the power of the Court to grant injunctions (see (a) to (d) above) against the applicant’s cohabitant and former cohabitant.  Section 3B(2) lists the relevant factors to be considered by the Court in each particular case when determining whether the parties are in a cohabitation relationship.

Attachment of authorisation of arrest

Section 5 of the DCRVO provides that where the Court grants an injunction pursuant to section 3, 3A or 3B the Court may attach to the injunction an authorisation of arrest if it is satisfied that the respondent has caused actual bodily harm to the protected person or the Court reasonably believes that the respondent is likely to cause actual bodily harm.

An authorisation of arrest may be attached to the injunction at the time the injunction is granted or at any time during the validity period of the injunction.

Once an authorisation of arrest is attached, a police officer may arrest without warrant any person whom he reasonably suspects of being in breach of the injunction.  Upon arrest the respondent cannot be released and will be taken before the Court as soon as practicable but in any event before the expiry of the day after the day of his arrest.

Limitation

Section 6 provides for an injunction order to have effect for such period the Court considers appropriate but should not exceed 24 months.  An authorisation of arrest attached to an injunction shall likewise have effect for a period determined by the Court which cannot exceed 24 months and shall expire upon the expiry of the validity period of the injunction.

Applications for injunction orders under the DCRVO are usually made ex-parte (without notice to the respondent) and the initial Injunction Order will run until an inter-parties hearing of which the respondent will be given notice.  The injunction order is effective when served upon the respondent.

Further provisions of note

In respect of parties to a cohabitation relationship the Court should not attach an authorisation of arrest to an injunction order unless it is satisfied having regarded to the permanence of the cohabitation relationship it is appropriate in all the circumstances to do so.

Section 7A of the DCRVO allows the Court to vary or suspend a custody or access order.

In addition at the time the Court makes an injunction order it can include provision requiring the respondent to participate in any programme aimed at changing the attitude and behaviour that led to the granting of the injunction.

The police revised procedures

The police advise that in those cases where an authorisation of arrest is attached to an injunction order, the order containing the authorisation of arrest should be served to the Criminal Records Bureau by hand as soon as possible.  The order should be accompanied by a covering letter containing the full name; Hong Kong identity card number (passport number / home visit permit number) of all parties to the order and the police report number (if any).  The Criminal Records Bureau is open 24 hours every day.

The police must have a copy sealed order served with the Criminal Records Bureau before they can respond to and act upon the order.

The applicant must notify the Criminal Records Bureau of any variation or extension of the order.

Comment

In most incidents of domestic violence a call is made to the police.  In those circumstances where a formal police complaint is made a police report number is issued.  The applicant’s statement in support of the application for the injunction order should cite or attach a copy of the police complaint.  It should be noted that the police do not require, even in the absence of a police report number, a copy of the applicant’s affirmation made in support of the injunction.

The police protocol does not require additional service of a sealed copy order at the local police station.  However, it is good practice, where there is an existing police report on domestic violence to provide a sealed copy order to the investigating team or to the duty officer at the station where the report was made.

The applicant should have the telephone number of the investigating team or the duty officer, to hand to call if there is a breach of the injunction but if it is urgent, the applicant should first use the police emergency number.  The applicant should have a sealed copy Injunction Order in case police acting on an emergency call have not yet confirmed the authorisation for arrest with the Criminal Records Bureau.

For further information, please contact:

Philip Swainston
Consultant | Email

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

The post Police arrest procedures for breaches of Injunction Orders made against violent spouses and cohabitants under the Domestic and Cohabitation Relationships Violence Ordinance Cap 189 appeared first on Tanner De Witt Solicitors, Law Firm Hong Kong.

Tanner De Witt is delighted to announce Asialaw’s 2017 rankings of domestic law firms which can be found here.

Corporate/M&A – highly recommended

Tanner De Witt’s corporate practice has a strong focus on the mid-tier market and works with multinational corporations in Hong Kong and increasingly from the PRC. The firm advises on M&A, joint ventures, business sales and purchases, investment and shareholder agreements, due diligence and private-equity related transactions. Eddie Look heads up the practice and has been advising babywear retailer Bumps to Babes on its HK$60 million cash and part share swap into a China entity.

Dispute Resolution & Litigation – highly recommended

Tanner De Witt’s litigation and dispute resolution practice has been active in regulatory disputes and cybercrime work in the past 12 months. The firm has also been advising on the Hong Kong aspects of large international cases. Ian De Witt is very well respected by his peers. Jeff Lane acted for Swiss businessman and art dealer Yves Bouvier in setting aside injunctions in Hong Kong in relation to the allegation of secret profit made in trading high value artwork. “Jeff Lane has a strategic approach and asset recovery expertise,” says a client. “Jeff has good legal knowledge, the ability to put a strong case in court and he’s very professional,” says a client. “Mark Side is very personable with excellent knowledge of the jurisdiction,” says a client.

Financial Services Regulatory – highly recommended

Mark Side and Russell Bennett lead Tanner De Witt’s financial services regulatory practice. The firm has been advising on alternative investment products and collective investment schemes driven by a marked increase in SFC investigations and prosecutions. Edmond Leung focuses on the licensing aspects of M&A transactions while Jeff Lane has been advising on SFC investigations.

Labour & Employment – outstanding

Headed by Kim Boreham and Russell Bennett, Tanner De Witt’s employment practice advises both employers and employees on contentious and non-contentious matters. The firm regularly advises employers and senior executives on the negotiation of employment contracts, termination agreements, breaches of confidentiality, privacy and discrimination claims. The firm also takes on a substantial amount of pro bono and legal aid work. “Russell offers great expertise and has a confident and calm approach to resolving issues,” says one client. “They are knowledgeable and patient,” says another.

Restructuring & Insolvency – outstanding

Tanner De Witt has a well-known insolvency and restructuring practice that is often instructed by international law firms and professional service firms to advise on Hong Kong-specific issues. “Ian De Witt and Robin Darton are very knowledgeable in the area of insolvency,” says a client. Darton advised PRC real estate developer Kaisa Group on the restructuring of its offshore debt of more than $2.5 billion. Darton is also advising the liquidators of the Hong Kong arm of marine fuel supplier OW Bunker China on issues regarding security, cross-border insolvency and maritime law. De Witt is advising the joint and several liquidators of dry bulk carrier STX Pan Ocean on complex cross-border issues after it was wound up in August 2013.

For more information on awards won, click here.

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Tanner De Witt is delighted to be recommended again this year in The Asia Pacific Legal 500 Guide 2017 for its four main practice areas; corporate and commercial, labour and employment, restructuring and insolvency and litigation and dispute resolution. We are proud to announce that along with recognised leading individuals Ian De Witt, Robin Darton and Kim Boreham, solicitor Sunny Hathiramani has been selected as a new generation lawyer for our top tier Restructuring and Insolvency Practice. The full rankings can be found here.

Dispute resolution: litigation – ranked: tier 3

The practice at Tanner De Witt is led by Mark Side, who is acting for a high-net-worth individual in a professional negligence claim against an international bank. Jeff Lane is ‘a true market leader in fraud and asset recovery claims, with tremendous experience and local knowledge’. Lane is defending Yves Bouvier against a Russian billionaire accusing the client of defrauding him out of $500m. Pamela Mak is also a key contact.

Restructuring and insolvency – ranked: tier 1

‘An expert in the field of insolvency-related matters’, Tanner De Witt has a well-established practice and enjoys strong relationships with key insolvency practitioners; Robin Darton acted for the liquidators of OW Bunker in Hong Kong following the highly publicised collapse of the group. ‘All-round expert’ Ian De Witt is noted for his ‘practical advice’; he recently assisted a well-known Hong Kong-based company with the winding up of several entities.

Employment – ranked: tier 2

Tanner De Witt handles complex and sensitive employment matters for a client base that is divided evenly between companies and employees. The team saw an uptick in discrimination-related claims in 2015 and 2016; in one recent case, Russell Bennett advised a listed company on pregnancy rights and discrimination in the context of termination of employment. Recent instructions on the employee side include Kim Boreham’s advice to a former CEO regarding a high-value separation package.

Corporate (including M&A) – ranked: tier 6

Independent Hong Kong firm Tanner De Witt has an impressive mix of multinational and Hong Kong-based clients. It benefits from an extensive referral work from overseas law firms and handles a range of corporate work that includes frequent advice on Hong Kong’s regulatory landscape. Tim Drew, Eddie Look and Edmond Leung are recommended.

For more information click here.

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Tanner De Witt was extremely proud to support the 2016 Bloomberg Square Mile Relay again this year in Hong Kong. Entering two teams of ten runners we had a great night despite the light rain and slippery surface. Special thanks to organiser Tim Drew and superstar Phil Swainston.

The Bloomberg Square Mile Relay is the race for those who never settle. The restless who understands the status quo wins nothing, and that action changes everything.

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Tanner De Witt was proud to support the Hong Kong Family Law Association’s 30th Year Anniversary Celebration 2016. Following our silver sponsorship of the HKFLA 30th Anniversary Cocktail held at the Helena May on Thursday 10 November which was attended by Head of our Matrimonial Practice Mark Side, Russell Bennett, Eddie Look, Joanne Brown and Hayley Hui, we then supported the HKFLA Anniversary Dinner at the Hong Kong Club on Friday 11 November. Tanner De Witt matrimonial solicitor Joanne Brown and Elizabeth Seymour-Jones of our Litigation Practice were delighted to meet Baroness Hale at this special dinner.

Baroness Brenda Hale of Richmond DBE PC QC FBA was called to the bar in 1969 and has been the Deputy President of the Supreme Court of the United Kingdom since 2013. She was listed as the fourth most powerful woman in the UK in the BBC Radio 4 Woman’s Hour 100 Power List in 2013. Upon her appointment as judge in the Family Division of the High Court of Justice she was appointed a Dame Commander of the Order of the British Empire (DBE). In 1999, Hale become only the second woman to be appointed to the Court of Appeal. She was later appointed the first female Lord of Appeal in Ordinary and was created a life peer as Baroness Hale of Richmond, of Easby in the County of North Yorkshire.

About Tanner De Witt’s Family and Private Client Practice

Tanner De Witt advises families on divorce and associated matters in Hong Kong, often involving international considerations. For companies in the SME sector divorce of owners is frequently a major corporate event. Visit the practice area page here.

The approach of Tanner De Witt to divorce and family law is to reduce the impact on all concerned of the end of one chapter and the beginning of the next chapter of life. To achieve this lawyers in Tanner De Witt work to the best modern professional practice in putting the interests of children first and encouraging reasoned compromise and negotiations as first principles.

The areas of legal and practical interest include financial maintenance (sometimes known as alimony), estate distribution, child custody and child access. Many of the instructions in this area come from commercial clients who are expatriates in Hong Kong and are concerned about the implications of divorce for their employment visas and the immigration status of family members.

Tanner De Witt has professional relationships with law firms in other countries closely connected with Hong Kong where international divorces may lead to issues and works with a group of experienced mediators, counsellors and child psychiatrists where appropriate.

For more information or to arrange an initial consultation with a lawyer, please contact us.

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Veronica Chan joined Tanner De Witt last year having qualified as a lawyer in Hong Kong in 2009. She works with the Restructuring and Insolvency team and is a member of  International Women’s Insolvency & Restructuring Confederation (IWIRC) and Turnaround Management Association (TMA).

Why did you choose to become a lawyer?

I have lawyers in my family but when I first took up law at university I was actually influenced by the glamorous image and prestige status perpetuated by TV dramas; yes, like many of you would have imagined.  However after I completed my traineeship I realised that becoming a lawyer was more than just social status.

Practising law offers me the opportunity to sharpen my analytical, reasoning and critical thinking skills and gives me a new perspective on the world. I enjoy participating in court hearings and fighting the battles.

Describe a typical day at work.

I start my day by checking emails and planning for the day.  This ensures that the most urgent work gets done first.  Following that, I usually have to drive away from the “plan” because there are often more incoming emails or calls from clients which require my urgent attention.  Therefore I am normally flexible with my schedule.

A typical day could be drafting court documents or written advice, conference calls with clients or lawyers of the opponents, internal meetings with my team or attending court hearings.  My day will always end by discussing with my colleagues the upcoming clients events – being a female lawyer, the “what to wear” question can be a tricky one.

What part of being a lawyer do you personally find most satisfying?  Most challenging?

Practising as a lawyer is intellectually challenging – the diversity of areas in law and the wide range of clients require you to be capable of solving almost all kinds of problems.  These expectations could be a lifetime of challenges within a short time but once clients’ expectations are met and I overcome such challenges, the big smile on clients’ faces as they walk out of the boardroom or court room is most satisfying.  Some of the clients have become more than just clients but also friends.

Being a lawyer can be stressful at times, how do you maintain a good work-life balance?

As a member of Tanner De Witt, we strike a work-life balance.  I dance every week and as soon as music is up, my mind is fully unwound.  Every step I dance takes my mind away from work and keeps me glowing and refreshed.

A few drinks after work with colleagues or friends are also excellent stress reliever.  I’m not trying to promote alcohol but anyone from Tanner De Witt can tell you that we are also very active in social events.

What’s the best piece of advice you have ever received during your legal career?

Many of you may have heard of the phrase “think like a lawyer” but what does that mean?  I was once advised that being a lawyer, we need to think ahead.  Clients are more sophisticated nowadays and they require your advice as a professional to take them to the next steps.  Therefore, it is important that we, as lawyers, look at the big picture and plan ahead.

If you had not become a lawyer, what other profession(s) would you have considered?

I would probably be in a business providing events coordinating services.  I enjoy running around and dealing with different people.

You may find out more about Veronica here.

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We are very pleased to announce that we were one of the headline sponsors of this year’s DB Run for Charity 10km held on Saturday 12 November raising money for The Hub HK. We also had the biggest turnout ever with six Tanner De Witt team members racing. Huge congratulations to Partner of our Corporate and Commercial Practice Tim Drew who came 16th of 527 runners overall with a blistering time of 40 minutes 12 seconds. Special mention also to Jan Willem Möller who came in 36th place (42 minutes 51 seconds) and Kellie Simpson of our marketing team who came 91st of 232 females (58 minutes 17 seconds). Full results can be found here.

2016 Charity – The Hub HK

The Hub HK is a children and youth centre based in Sham Shui Po. It works to help children who are socially and economically disadvantaged. 209,000 children in Hong Kong live below the poverty line. In 2012 the founders of The Hub HK had a vision to help such children by providing a place for disadvantaged children:

•    to study and do their homework
•    to receive help with their learning
•    to meet and interact with their peers
•    to laugh, sing and roll around on the floor – as all kids should!

Learn more at their website: www.thehubhk.org.

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