Hong Kong will celebrate Chinese New Year this week and our office will be closed Monday 30 and Tuesday 31 January. We will reopen as usual on Wednesday 1 February. Please see our Contact page for further details.

The team at Tanner De Witt wishes you a Happy and Prosperous Year of the Rooster!

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This article explains how to deal with a family member whose mental capacity declines and you need to gain control of their financial and legal affairs without an Enduring Power of Attorney.

When a family member becomes mentally ill it is important to ensure that their property and other affairs are appropriately taken care of. Often this can be achieved in advance using an Enduring Power of Attorney, on which we have written, here. If their condition declines rapidly or is unforeseen it may be advisable to make use of the statutory scheme of protection contained in Part II of the Mental Health Ordinance, Cap 136.

This regime is relevant where a person is deemed ‘incapable, by reason of mental incapacity, of managing their property and affairs’. One of its purposes is to protect the interests of those suffering diseases such as Alzheimer’s and Huntington’s often in their later years. But the term ‘mental incapacity’ is defined in the Ordinance sensibly and broadly enough to encompass a wide range of other circumstances that affect one’s cognitive ability, and the scheme can be used creatively (though appropriately) to the benefit of person hospitalised following strokes, severe trauma or even drug use that has induced a coma.

Two-stage process

The central function of the court under Part II is to conduct an inquiry to ascertain whether the person is in fact incapable of managing their property and affairs. The procedure is therefore divided into two stages.

At the first stage, the court will consider the papers and make directions as to how the inquiry will proceed. It will be important to ensure, for example, that family members are given notice of the forthcoming inquiry. The court will wish to be notified of the person’s assets, their needs and interests, as well as their medical condition and prognosis. The Official Solicitor will provide assistance as a friend of the court, and as the government office statutorily responsible for those who cannot conduct litigation on their own behalf.

At the second stage the court conducts the inquiry, hearing from those interested in or affected by the person’s incapacity, and makes a finding. Where the inquiry finds that the person is indeed incapable of managing their property and affairs, a broad range of statutory powers vest in the court to be exercised on their behalf and in their best interests. These include:

• Acquiring, selling, charging or disposing of the person’s property;
• Setting trusts;
• Executing a will;
• Carrying on the person’s profession, trade or business;
• Entering into and performing contracts; and
• Conducting legal proceedings.

One common resolve, particularly where the incapacity is likely to be ongoing, is to appoint a Committee of the Estate under section 11. The Committee may comprise family members as well as the Official Solicitor. It will be charged with dealing with the property and affairs of the person in their best interests, and empowered to execute instruments on the person’s behalf. Importantly, the court retains jurisdiction to oversee the Committee’s handling of the matter, including by specific order that Committee act in a particular manner. Where the estate is less considerable the court is specifically empowered to make a simpler form of order for the ‘direct and inexpensive’ maintenance of the person and / or their relatives, without appointing a Committee, under section 24.

Emergency relief

One of the most powerful aspects of the regime is the power to grant emergency relief. This can be obtained urgently, as unfortunately may often be necessary, and before an inquiry has been convened (and before a final finding as to the person’s capacity has been made). This has the potential to save valuable time where an unforeseen medical crisis occurs, and a person on whom perhaps a number of others depend is suddenly rendered incapable of providing for them.

This jurisdiction is wide and entitles the court to make use of ‘any of the powers conferred’ by Part II, including those above, to meet the exigencies of the situation. Consideration will be given to the fact that some of the person’s relatives will not yet, on an urgent application, have been heard. The court will be reluctant to grant a carte blanche over assets where it is unable to discern the longer-term implications, though it will not ignore situations of real need, particularly where the relief is designed to continue established uses and applications of assets, for example as regards family maintenance, educational fees or expenses in the ordinary course of a family business.

The application

Applications for both inquiries and for emergency relief are generally made by ‘relatives’ (they may also be made by the Director of Social Welfare, the Official Solicitor and court-appointed guardians).

A ‘relative’ is particularly defined in the Ordinance to include a person’s spouse, cohabitant, children (including step-children), grandparents and grandchildren (including in-laws), uncles, aunts, nephews, nieces and cousins (and their spouses).

Applications must be accompanied with two medical certificates attesting to the person’s incapacity. One of the practitioners must be approved by the Hospital Authority as having specialist experience in mental incapacity or mental handicaps. Arrangement should be made for hospital visits as early as is practicable where emergency orders are sought, as hospital medical reports are often only available after a period of weeks.

What to do in the event that a family member loses capacity

First, be sure to discuss the situation with family members close to or dependent on the person. Seek agreement on an arrangement of the person’s assets that parties agree is in their best interests. To a degree this will mean in accordance with their wishes, and you should ascertain if possible whether the person has made a Last Will and Testament. Often people remain incapacitated in the legal sense, though alive, for some time. In such a case your first consideration will likely be the person’s long-term care, which may require funding. The court is acutely aware of these issues and will be comforted where some thought has gone into such medium and long term arrangements. If in doubt, seek legal advice.

Second, consider what matters as concern others will have to be attended to in the event that the person does not regain capacity in the foreseeable future, and whether any of those are likely to become urgent. It may be the case that a simple trust settlement, or a business trade sale, will provide for a steady source of support that does not necessitate the court’s ongoing supervision. On the other hand where there exists a complex estate or where the person has retained much of the operational power to use and apply their assets, it will be beneficial to begin the planning process as early as possible.

If you would like to discuss an application under Part II with a lawyer, please contact:

Mark Side

Partner | Email

If you would like to discuss an Enduring Power of Attorney ahead of incapacity please contact:

Eddie Look

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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We are delighted to announce that Kaisa Group’s debt restructuring wins Deal of the Year in China Business Law Journal’s 2016 rankings.

Kaisa Group’s debt restructuring

CATEGORIES: Debt capital market; real estate; restructuring

LEGAL COUNSEL: Ropes & Gray and Tanner De Witt acted for Kaisa Group Holdings. Harneys advised Kaisa Group on Cayman and BVI law. Kirkland & Ellis and Mourant Ozannes advised the ad hoc steering committee of the bonds and convertible bonds issued by Kaisa Group. Clifford Chance, Mayer Brown JSM, and O’Melveny & Myers acted for the creditors and certain trustees. Walkers acted for bondholders of Kaisa Group.

KEY POINTS: The US$2.6 billion restructuring of Kaisa Group’s six tranches of offshore bonds and convertible bonds was one of the most high-profile restructuring cases of the past year. Kaisa is the first Chinese property developer to default on its debt, which is valued at more than US$10 billion, both onshore and offshore. The transaction became unique and complex because its defaulted offshore bonds and convertible bonds were widely held across a variety of investors, both institutional and private.

It was implemented through parallel schemes of arrangements in Hong Kong and the Cayman Islands. According to Tanner De Witt, the restructuring of Kaisa’s offshore debt through the use of schemes of arrangement was a positive development for restructurings in Hong Kong. The firm also notes complexity with issues arising in the restructuring that had not previously been addressed much in the Hong Kong courts, with either little or no Hong Kong authority guidelines to show the way.

According to Kirkland & Ellis, the eventual restructuring proposal was a result of a highly negotiated process, and its innovation demonstrated how offshore creditors could work with onshore debtors and lenders to negotiate a complex and multi-faceted restructuring of a Chinese company.

For more information see article: Tanner De Witt instructed on groundbreaking restructuring case: Kaisa Group Holdings Limited.

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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Employment Update (May 2017)

Increase of Statutory Minimum Wage Effective from 1 May 2017, the rate of Statutory Minimum Wage has been raised to HK$34.50 per hour.  The monetary cap on the requirement of employers recording the total number of hours worked by employees has also been revised to HK$14,100 per month from 1 May 2017.  The Labour Department has also issued updated Guidelines and Notes on the Statutory Minimum Wage at http://www.labour.gov.hk/eng/public/content2_smw.htm.

Kim Boreham
Partner | Email

Russell Bennett
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 is pleased to sponsor Discovery Bay FC at the HKFC Citi Soccer Sevens this year – good luck to the players this weekend! For more details on this event which will be held Friday 26 to Sunday 28 May 2017 please click here.

About the HKFC Citi Soccer Sevens

The HKFC Citi Soccer Sevens is the world’s best seven-a-side football tournament where fans can see the stars of tomorrow and some of the legends of the game in one exciting event. Held at Hong Kong Football Club every year from 1999 except in 2003, the event is divided into two tournaments.

The Main Tournament is open age (players must be at least 16) and features youth and academy teams from some of the top clubs in Europe playing against more senior players from clubs and teams around the Asia-Pacific region.

Aston Villa have won a record six times (2002, 2004, 2007, 2008, 2010, 2016), while Blackburn Rovers (1999), Arsenal (2001), Newcastle (2012), Leicester (2013) and Manchester City (2014) are the other English clubs to have lifted the Cup.

Hong Kong clubs Kitchee (2011) and Instant Dict (2000), Japan’s Urawa Reds (2005, 2006), Scotland’s Celtic (2009) and Spain’s Atletico Madrid (2015) are the tournament’s only non-English champions.

Current and former English Premier League aces Gary Cahill, Glen Johnson, Gabriel Agbonlahor, Jack Grealish, Sammy Ameobi, Anton Ferdinand, David Bentley and Marc Albrighton, plus Scotland internationals Shaun Maloney, Craig Beattie and Chris Burke, are just some of the young players who first made a name for themselves in this tournament.

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

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Tanner De Witt Partner Robin Darton will participate in the panel session “Cross-Border Insolvency in Practice” at the Debtwire Asia-Pacific Distressed Debt Forum 2017 on Thursday 1 June 2017.  Also on the panel are Alister Berkeley (Special Situations & Restructuring Advisor, PwC), Theron Alldis (Sourcing, SC Lowy) and Sean Prior  (Counsel, Mayer Brown JSM, Singapore). Tom Pugh (Partner, Mayer Brown JSM) will moderate.

About the Conference

Debtwire’s Asia Pacific Distressed Debt Forum is a full day forum where industry experts will discuss the distressed debt trends and opportunities for investors across the Asia Pacific region.

2017 Highlights:

• By name of company, which credits are distressed professionals looking at? Why are these credits attracting so much attention? What are the legal and structuring considerations in Asia’s emerging markets as opposed to its advanced economies?
• What are key observations on insolvency laws and restructuring procedures in key Asian economies?
• What is the impact of oil and gas distress on concentrated industries and which offer the best distressed investing opportunities?

About Robin Darton

Robin has been practicing as a lawyer in Hong Kong for over 20 years. He has extensive experience in insolvency and restructuring matters, as well as litigation across a range of subjects. His experience includes acting for office-holders, creditors and debtors in winding-up proceedings; appointments of provisional liquidators; restructurings including schemes of arrangement with cross-border elements; claims against directors and auditors; and fraud and asset tracing claims. Robin is consistently ranked as a ‘Leading Lawyer’ for restructuring and insolvency in Hong Kong by various industry publications including Chambers Asia Pacific and Asia Pacific Legal 500.

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Many expatriate employees engaged to work in Hong Kong either generally or for specific periods, can often be employed under contracts expressly stated to be governed by the law of another jurisdiction.  Where contracts are expressed to be governed by the law of England and Wales, that potentially gives those employees the rights and protections under English law, even though they work in Hong Kong. This would include the extensive protections against unfair dismissal provided by the UK’s Employment Rights Act.

However as a matter of English law, the protections provided by the Employment Rights Act and the right to sue in the UK’s Employment Tribunal, only apply to overseas employees where:

1. Their employment contract is expressly stated to be governed by the law of England and Wales; and
2. The employee and the employment have “a strong connection to the UK”.

The recent UK case of Green v SIG Trading Limited (Employment Appeals Tribunal – 28 April 2017)  confirms that an employer’s subjective reasoning and explanation as to why the contract is said to be governed by English law should not be taken into account in deciding whether there is a “strong connection” and the Employment Tribunal should apply an objective test to the terms of the contract and the employment in deciding whether there is a sufficient connection to the UK to allow the employee to invoke the jurisdiction of the Employment Tribunal and claim (amongst other things) for unfair dismissal under English law.

The key facts on which the Employment Appeals Tribunal based its decision in deciding a close connection in this case were:-

1. 1. the employer was a company registered in the UK;
       
   2. the contract referred to the employee’s position overseas as being a “secondment” outside the UK;
       
   3. the operations undertaken outside the UK were part of the accounting and financial reporting for the UK;
       
   4. the employee reported to a manager based in the UK, and other staff and support services were located in the UK; and
       
   5. while the above factors were all persuasive, the conclusive point in the appeal which led to the Employment Tribunal’s conclusion being overturned was that the contract was expressly stated to be governed by British law. This had been disregarded by the Employment Tribunal on the basis of the employer’s explanation that the term had simply been agreed as a matter of “convenience”.  The Employment Appeals Tribunal found that the governing law was a highly relevant point and it was not open to the Employment Tribunal to disregard it based on the employer’s subjective explanation.  On this basis the Employment Appeals Tribunal found the Employment Tribunal’s conclusion unsafe, and the appeal was allowed.
       

    

   Employees employed in Hong Kong will benefit from the mandatory laws of Hong Kong (in particular their rights and entitlements under the Employment Ordinance, Employees Compensation Ordinance and the Discrimination Ordinances) even if their contract is stated to be governed by a foreign law (including the law of England and Wales).  Where employees engaged in Hong Kong have a “close connection” to England and the contracts are governed by English law, this case potentially provides them with valuable and additional rights and the option to claim under the protections afforded by English law even though they are employed in Hong Kong.

   Russell Bennett
   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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We are delighted to announce that Kaisa Group’s debt restructuring wins Deal of the Year in Asian-mena Counsel’s 2016 rankings.

Kaisa Group’s debt restructuring

Deals of the Year 2016 – Asian-mena Counsel

Tanner De Witt was Lead Counsel to Kaisa Group Holdings.

For more information see article: Tanner De Witt instructed on groundbreaking restructuring case: Kaisa Group Holdings Limited.

The deal description was first published in Volume 14 Issue 8, 2017 of Asian-mena Counsel and reproduced with permission.

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 Restructuring and Insolvency Partner Robin Darton joined a panel on ‘Cross-border insolvency in practice‘ at Debtwire 2017 held on Thursday 1 June at JW Marriott Hotel in Hong Kong alongside moderator Tom Pugh of Mayer Brown JSM. Also speaking were Alister Berkeley (Special Situations and Restructuring Advisor, PwC), Theron Alldis (Sourcing, SC Lowy) and Sean Prior (Counsel, Mayer Brown JSM, Singapore).

The panel covered the globalization of insolvency law and debt restructuring.

• What do corporate restructurings such as Nortel, TMT and Pacific Andes tell us about the cross border insolvency process in Asia?
• What steps must be taken and which issues addressed to manage the oftentimes complex nature of cross border restructuring?
• Which jurisdictions – Singapore, Hong Kong, Indonesia — are likely to be chosen in the course of cross-border restructurings, and for what reasons?

Robin Darton is President of the Hong Kong Chapter of the US-based organisation TMA (Turnaround Management Association). TMA sponsored the Closing Cocktail at Debtwire this year.

Unlocking distressed opportunities in Asia-Pacific: Debtwire is an annual conference organised by Mergermarket held in Hong Kong. For more details click here.

For more information on our Restructuring and Insolvency Practice click here.

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Tanner De Witt’s Criminal Lawyer, Consultant Phil Swainston, was invited by The Law Society of Hong Kong to join a panel and share his views on Public Interest and Fair Trial Rights – Where Should the Balance Be Struck? at the 2017 Hong Kong Criminal Law Conference. This conference was held on Saturday 20 May at the Function Hall of the Department of Justice in Justice Place. Phil was joined by Mr Martin Hui (SC of the Department of Justice) and Mr Joseph Lee (Hong Kong Bar Association). The session was introduced by Special Guest and Honourable Justice William Young.

The Annual Criminal Law Conference is jointly organised by the Prosecutions Division of the Department of Justice of the Hong Kong Special Administrative Region, the Hong Kong Bar Association and the Law Society of Hong Kong.

For more information about Tanner De Witt’s Criminal Law and White Collar Crime Practice please click here.

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Happy World Oceans Day from all of us here at Tanner De Witt! This year’s theme for World Oceans Day is “Our Oceans, Our Future”. The theme is especially poignant, as nearly half of the world’s population is now under 25 years old. It is vital that we protect the earth’s natural resources for future generations.

Early this year we began a Recycling Programme that ensures all recyclable items (newspapers, magazines, carton boxes, packaging paper, drink/food tins, plastic bottles/cups/food containers and wine bottles) are sent to Lippo Centre’s recycling team for processing. This initiative has been well received by all members of our team.

“Protecting our environment for future generations has always been important to me and the partners at Tanner De Witt” Tanner De Witt Partner Edmond Leung – lawyer for charity Plastic Oceans Ltd.

About World Oceans Day
Coordinated and promoted internationally by The Ocean Project since 2002, World Oceans Day is an annual celebration on June 8 as well as a call for ocean conservation action throughout the year. The United Nations officially recognized World Oceans Day when its General Assembly passed a resolution in late 2008. This unique celebration of our world ocean brings together organizations and key individuals from aquariums, museums, youth groups, schools and universities, businesses, and others, including divers, surfers, sailors, communities of faith, artists, the maritime, recreational and tourism industries, governments, and more. For more information, or find an event, visit: www.worldoceansday.org.

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

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What is a “child of the family”? LNL v HPYA [2016] 3 HKLRD 261

The main issue before the Court in this case was whether the child, CH, was a child of the family. The determination of this question was relevant to whether the husband should pay maintenance for the child to the wife.

CH was the natural child of the wife. The wife’s relationship with CH’s natural father in 2003 and entered into a relationship with the husband in 2006. From very early on in the relationship CH was introduced to and spent time with the husband, including overnights, and the husband later moved in with CH and the wife when he and the wife married in 2013.

The husband filed for divorce in November 2014. In his petition the husband pleaded that there was no child of the family now living. The wife disputed this and maintained that CH, though not the natural child of the husband, had been treated by them both as a child of the family.

Deputy District Judge Grace Chan directed that a fact finding hearing be held to determine whether CH was in fact treated as a child of the family.

The legal principles governing this area were not in dispute. In short, the Matrimonial Proceedings and Property Ordinance defines a “child of the family” in the two following limbs:

“a. a child of both those parties
”b. any other child who has been treated by both parties as a child of their family.”

It was the second limb which was at the heart of this dispute.

The Court took a number of facts into account in consideration of the question of whether CH was treated as a child of the family.

Husband referred to CH as his son

It was submitted by the wife and not disputed by the husband that during the wedding ceremony of the husband and wife, he had CH as one of his best men, and introduced CH to his relatives and friends as his son. The husband’s explanation for this was that he was both considering CH’s feelings and he wished to save the wife any embarrassment. This was not accepted by the Court as according to his own evidence the husband’s family and friends already knew that CH was not his natural son. That he stated he wished to take into account CH’s feelings served against him as the Court considered this was so as she regarded CH as his own child.

Change of CH’s name

Both prior to and following his marriage to the wife, the husband suggested that CH’s name be changed to adopt the husband’s surname, the middle character to be changed according to the genealogy of the husband’s family, and the last character to be chosen by the husband. The Court accepted that these indicated that the husband was treating CH as a child of the family.

CH’s school handbook

In addition to the above, at the beginning of one of CH’s school terms the husband signed CH’s school handbook as one of CH’s parents / guardians, and signed within the book when the wife was not able. The Court held at paragraph 34 of the judgment that the only “logical conclusion” to this was that “the husband actually saw himself a parent of CH and that he treated CH as his own child.”

Previous divorce proceedings

Divorce proceedings had previously been brought by the wife but withdrawn on the basis that the parties had not yet been separated for one year. In these proceedings, the husband did not refute the wife’s assertion in any of the documents he filed in those proceedings that CH was a child of the family and in fact confirmed this in his own Form E, detailing the school and living arrangements of CH. The Court made clear that it considered the fact that the husband was at all material times represented in the previous proceedings, including the time at which the Form E was filed.

Other considerations

The Court accepted the wife’s submission that the husband’s payment to her for rent and household expenses and to CH for pocket money indicated that the husband had taken up parental responsibility.

Conclusion

On an assessment of the above facts, the Court found that CH was indeed treated by the parties a child of the family.

It is clear from this judgment that the Court’s approach as to whether a child is a “child of the family” is quite generous, and there are many factors that the Court is willing to consider in making its assessment. It should be noted that the factors considered in this case are not exhaustive of those that can be considered in answering this question. The factors the Court relies upon in such cases cannot be considered individually but must be viewed in light of all of the circumstances of the case, and should not be considered legally but rather practically in that light.

Joanne Brown / Elizabeth Seymour-Jones

If you are considering a divorce, and need guidance on whether a child is a “child of the family”, please contact:

Joanne Brown
Solicitor | 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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Section 2 of the Rehabilitation of Offenders Ordinance Cap 297 (“ROO”) is a godsend for offenders convicted for the first time and sentenced to a fine of less than HK$10,000 or to imprisonment of 3 months or less. An offender is entitled to treat the conviction as spent after the expiration of 3 years and recover their ‘good character’ and clear record.

Section 2(1) of ROO provides that

(ii) any question asked of that individual or any other person relating to any obligation imposed on that individual or the other person to disclose, that individual’s previous convictions, offences, conduct or circumstances shall be treated as not relating to that conviction and;

(iii) that conviction or any failure to disclose it shall not be a lawful or proper ground for dismissing or excluding that individual from any office, profession, occupation or employment or for prejudicing him in any way in that office, professional, occupation or employment.

However there are exceptions, most notably those offenders regulated by their professional body.

Section 3(1) provides that nothing in section 2 shall effect –

(c) the operation of any law under which the individual is subject to any disqualification, disability, prohibition or other penalty.

Section 4 of ROO specifically excludes lawyers from spent convictions.

In respect of solicitors section 53(3) of the Legal Practitioners Ordinance Cap 159 provides that “a conviction involving dishonesty is never spent insofar as a person is to become a solicitor, a trainee solicitor or employee of a solicitor:. A solicitor is not entitled to the protection of the rehabilitative provision under section 2(1) ROO in connection with his employment or application for employment with a solicitor.  The HK Law Society is entitled to publish the conviction in its internal members only circulars.

The issue was considered in the case of HCAL 39/2016, Y v The Law Society of Hong Kong. This case involved a trainee solicitor applying to become a solicitor and without his consent the Law Society contacted the Director of Public Prosecutions and the Eastern Magistracy to verify the detail and then published the conviction in two circulars reminding solicitors not to employ staff convicted of dishonesty or other offences without written permission.

Section 53(3) of the Legal Practitioner Ordinance Cap 159 contains a “disqualification, disability, prohibition or other penalty” within the meaning of section 3(1)(c) of the Rehabilitation of Offenders Ordinance Cap 297.  Most professional bodies have similar provision.

Section 58(1) and (2) of the Personal Data (Privacy) Ordinance Cap 486 entitles the Law Society to publish convictions.

The Court in HCAL 39/2016 properly found that the provisions of ROO and the LPO where not unlawful and that it was in the public interest that regulated  professional bodies should continue to expect disclosure of all criminal convictions from its members or prospective members.

It is a relevant factor when asking the Director of Public Prosecutions to consider to deal with a charge by way of a bind over. A conviction, in particular of a dishonesty offence, would potentially disqualify an offender from their chosen profession for life. Disclosure of the conviction to a regulatory body is a lifetime mandatory requirement.

Philip Swainston

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.

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Tanner De Witt seeks a pro-active, organised, enthusiastic and experienced candidate to join our law firm’s Litigation and Dispute Resolution Practice as Legal Secretary.

Responsibilities:

• Provide legal secretarial support to a team of Litigation and Dispute Resolution lawyers;
• Update and maintain filing systems;
• Coordinate meetings and schedule daily activities when necessary.

Requirements:

• Good PC knowledge and skilled in MS Office applications;
• Proficient  English and Chinese typing and audio typing;
• Minimum 3 years’ secretarial experience in  legal firm;
• Strong sense of responsibility, self-motivated and detail-oriented;
• Enthusiastic and able to work independently and under pressure.

Successful candidates should be able to work collaboratively as member of a team, and have a strong commitment to the success of the firm.  Whilst the working environment is friendly, our firm aspires to the highest professional standard.  Competitive package commensurate with experience and qualifications would be offered to the right candidate. Existing knowledge of Lexis Nexis Affinity will be useful.

Career level: Middle
Year of experience: Minimum 3 years
Qualification: Non-Degree Tertiary
Industry: Legal Services

Please email your CV and covering letter to careers@tannerdewitt.com.

About Tanner De Witt

Tanner De Witt is an independent business law firm based in Hong Kong. The firm provides legal services to clients worldwide who have business interests in Hong Kong, China and the Asia Pacific Region. Our solicitors act for multinationals, partnerships and individuals involved in a wide range of business activities, both within Hong Kong and internationally.

Our lawyers, many of whom have international law firm backgrounds, have between them a wealth of knowledge and practical skills, enabling the firm to provide focused support for clients.

Today the firm has an established reputation for providing a first-class legal service at a sensible cost with a personal, practical and versatile style. The firm is committed to a standard of service which enables our clients to achieve their goals.

The post Tanner De Witt Legal Secretary Role – Litigation (3+ years’ experience) appeared first on Tanner De Witt Solicitors, Law Firm Hong Kong.

In 2013, the case of Lau Tat Wai v Yip Lai Kuen Joey established the tort of harassment as a part of the common law in Hong Kong, in order to (quoting the Judge) “protect the people of Hong Kong who live in a small place and in a world where technological advances occur in leaps and bounds. Intrusion on privacy is difficult to prevent and it is hard for the victim to escape the harassment.” The watershed decision was previously reported by Tanner De Witt.

In a recent judgment concerning harassment caused by debt collectors, the District Court has further enhanced the position of the tort of harassment in Hong Kong.

Facts

Although Hong Kong’s Court system provides a legal and relatively swift resolution to recover a simple debt owed, many people or companies still engage collectors to recover debts owed to them. The debt collectors often resort to acts of intimidation and harassment in an attempt to force payment out of the target quickly.

The Plaintiff’s domestic helper borrowed HK$3,000 from licenced money lenders which she failed to repay. The lender hired a debt collector by assigning the debt to the collector. Pursuant to the Loan Assignment Agreement between the lender and the debt collector, the debt was to be collected in a “legal manner”. But often debt collectors will go to great lengths and intimidate and harass the targets to recover debts.

The debt collector began calling the Plaintiff incessantly demanding her to repay her domestic helper’s loan. The debt collector repeatedly used foul language and often used threatening words against the Plaintiff and her family members.

The Plaintiff hired solicitors to warn the lender to call off the debt collectors. However, the Plaintiff and her family continued to receive harassing calls with intimidating messages. Even the solicitors began to receive unanswered phone calls. The Plaintiff also received posts from the debt collector that contained letters with her personal data with various warnings and a pile of paper money, often used by the Chinese to pray to dead ancestors. The harassment continued for almost one month.

The Plaintiff sued the lender for damages, including compensation for mental disturbance, humiliation, damage to dignity and fear; and injury to feelings for unlawful collection and using of the Plaintiff’s personal data.

The Judge awarded a total of HK$500,000 in damages (both aggravated and exemplary damages) and for the lender to pay for the Plaintiff’s legal costs. It was also decided that the lender, and not the debt collector, was solely responsible for carrying out the acts, as the payment notices sent to the domestic helper contained the lender’s contact and account details. The debt collector was therefore acting on behalf of the lender.

Mark Side / Anthony Marrin

For more information regarding this case and the tort of harassment, please contact our Litigation and Dispute Resolution Solicitors Mark Side and Anthony Marrin.

Mark Side
Partner | Email

Anthony Marrin
Solicitor | 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 was pleased to be invited by the British Legion to host three members of the Welsh Guard for lunch at The Hong Kong Club on Wednesday 14 June. The Guards were in Hong Kong representing the British Army and participating in the Queen’s Birthday Celebrations in Hong Kong and Macau. Partners Ian De Witt and Jeff Lane were joined by solicitors Veronica Chan and Tara Chan.

Tanner De Witt is proud to support the British Legion’s activities in Hong Kong as evidenced by our annual Poppy Appeal.

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Partner Robin Darton was selected and personally invited this week to participate in a Cambridge Forum on the International Enforcement of Judgements & Awards (FIEJA) at Pennyhill Park Hotel in Surrey, United Kingdom.

The Forum’s Steering Committee welcomes up to 44 specialists in the area of international enforcement from both common and civil law jurisdictions, including litigation and arbitration practitioners (Barristers/Solicitors/Attorneys), judgment traders, forensic and IT experts, international investigators, the judiciary, and public prosecutors. This elite group develops the agenda which formulates the basis of the round table discussion.

Topics discussed include: Preliminary Assessment of Enforceability, Retainers and Funding, Interim Measures, Improving Prospects of Recovery and Peeling the Onion, Defences/Counter Attacks/Problems and Enforcement Mechanics.

Please contact Robin Darton directly for queries.

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Ilott v Mitson [2017] UKSC 17 – update

Background

This case was previously featured in a post entitled “Is your will your will?“.

The case concerned the Will left by a Mrs. Jackson after her death in June 2004. Mrs. Jackson was survived by her only child, the Plaintiff Mrs. Ilott, from whom she had been estranged for 26 years. Mrs. Jackson left the entirety of her estate worth GBP486,000 to be split between 3 animal charities. Mrs. Ilott was specifically and intentionally excluded, as set out in a letter written by Mrs. Jackson to be read in the event that her Will was contested by her daughter.

Following her appeals to the Court of Appeal and High Court, Mrs. Ilott was awarded several sums ranging from GBP50,000 to GBP164,000. Eventually, the Court of Appeal decided that Mrs. Ilott should receive only GBP50,000 from Mrs. Jackson’s estate. Mrs. Ilott then appealed to the Supreme Court.

Final Decision

The Supreme Court handed down its decision in March 2017 (Ilott v Mitson [2017] UKSC 17), some 10 years after the matter was first heard and decided in 2007. The Court unanimously ruled to overturn the Court of Appeal’s decision and reinstated the original decision of District Judge Millon to award Mrs. Ilott GBP50,000.

It is clear from this judgment that the range of possible outcomes of such cases is incredibly broad, which creates challenges in advising on the merits of any given application. The question the Court must consider is whether in the circumstances the will’s provisions are reasonable or unreasonable. The question of reasonableness relates to whether the financial provision is reasonable, not whether the deceased acted unreasonably.

Lady Hale gave her own judgment in support of the main judgment in which she lamented the current state of the law in respect of the lack of guidance it offers regarding whether an adult child deserves reasonable maintenance or not and the factors to be considered in deciding this.

When considering what maintenance is, the main judgment, given by Lord Hughes, broadly considers maintenance to be the provision of income rather than capital. However, what can be considered to be maintenance can be broadly interpreted. For example, it could be paid by way of a lump sum, ongoing income payments or the payment of debts to enable one to carry on a profit-making business (per Browne-Wilkinson J in In re Dennis, deceased [1981] 2 All ER 140 at 145-146 as cited by Lord Hughes in the main judgment at 14).

The determination of the provision to be awarded, if any, will take into account the needs of the applicant. Needs will not however determine the sum of the award, as factors such as the size of the estate and competing claims will impact whether the needs claimed can in fact be met by the estate. Mrs. Ilott’s reliance on needs in her argument was not enough to convince the Supreme Court that the Court of Appeal’s decision should stand. It was held that District Judge Millon was entitled to reach the decision that he did – considering at paragraph 35 of the main judgment both that “there was a failure of reasonable financial provision, but that what reasonable provision would be was coloured by the nature of the relationship between mother and daughter.”

The effect of the Supreme Court decision is that the scope of the court’s ability to intervene against a testator’s wishes where an adult child contests the distribution of the estate is again limited in light of the UK’s somewhat non-specific legislation in this area.

Joanne Brown / Elizabeth Seymour-Jones

For further information, please contact:

Joanne Brown
Solicitor | 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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Tim Au joined Tanner De Witt in 2012 after gaining a Juris Doctor degree and a PCLL from the Chinese University of Hong Kong. He 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?

At the end of secondary school, I decided to study history in university as it was my favourite subject.   However, one of my close friends asked me, “What are you going to do with a history degree?”. I didn’t know how to answer her but I told her I would probably go into teaching.  Luckily, the university I attended offered a combined honours programme which meant that I could mix and match any subjects in their humanities faculty (including law). I therefore enrolled into a history and law degree, during which I applied and worked as an intern with local and international law firms in Hong Kong.  During the internships, I had opportunities to accompany solicitors and Counsel to Court and I was hugely fascinated by the court procedures. It was then that I realised I wanted to become a lawyer.  As my undergrad degree was not a full law degree, I enrolled into the Juris Doctor programme with CUHK (the fastest way to get a law degree) and started my traineeship with Tanner De Witt in 2012.

Describe a typical day at work.

I will check overnight emails and the news going into work. If there is a hearing, I will get to work early to prepare.  On a normal day, I will work through my to-do list which involves mainly drafting correspondence, advice and legal documents. In between tasks, I will spend a lot of time on the phone with clients, counsel, business contacts and counterparties to discuss matters for a particular case. Our partners have an “open door” policy so lawyers in our firm spend a considerable amount of time conferring and discussing strategy with partners.  When preparing for legal opinion and conducting legal research, I will spend time in the High Court library to make use of their impressive catalogue.

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

When clients come to us, they are often being cornered with all sorts of problems. They will rely on your advice to solve their issues. Sometimes, these problems will have an adverse effect on the client’s personal lives.  I find being able to help these clients the most satisfying aspect of the job. The satisfaction is there regardless of result but, of course, being on the winning side makes the whole process even better.

We often have very little time to turn our work around especially during high pressure situations like trials. Maintaining the quality of your work under time pressure is probably the most challenging aspect of the job.

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

There are many (many) marketing events at Tanner De Witt and they give you plenty of opportunities to wind down with colleagues and clients in a relaxed setting. On a personal level, make sure you allocate plenty of time to exercise as maintaining a healthy body will allow you to work more efficiently!

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

If something unfavourable happens, don’t dwell on it and focus on the next task at hand instead.

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

Academia was likely but I would love to try being a chef!

You can find out more about Tim here.

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We are very pleased to be Gold Sponsor of this year’s 2017 Singapore Insolvency Conference. Partners Ian De Witt and Robin Darton and solicitor Veronica Chan will attend from Hong Kong.

The 2017 Singapore Insolvency Conference is a forum for  Restructuring and Insolvency professionals in the region to exchange and share information and experiences. The forum will open with a session covering the latest development in Singapore law concerning restructuring and insolvency and tools available to effect restructuring in and outside of Singapore. Also making a comeback is the marquee event of previous conferences, the Judicial Colloquium, where judges attend from multiple jurisdictions and share their thoughts on various issues, offering a rare insight into the judicial mind.

This conference will be held in Singapore on 24 and 25 August and is hosted by the Law Society of Singapore. The Law Society of Singapore, established in 1967, is the representative body for all lawyers in Singapore. Its mission is to serve its members and the community by sustaining a competent and independent Bar which upholds the rule of law and ensures access to justice.

For event and sponsorship enquiries, please contact us.

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