Brief CV of Fung Chi Keung (Derek) [8 March 2021] Barrister and Engineer LLB, MA (Arbitration), MSc, FCIArb, CEng, MIET, MHKIE.

Contact Chambers Address…… Unit 1203, 12/F, Bank of America Tower, 12 Harcourt Road, Central

Telephone……………Office -2869 8399 ; mobile-9781 1384

Email…………………. [email protected]

Profile  Qualified as a Barrister in . Practise in Civil and Criminal work. Focus in Arbitration, Construction, Contracts and Commercial. *  Also qualified as a professional Engineer with over 25 years post-qualification experience in project management and delivery of Railway, Infrastructure and Building projects.  Profound knowledge in engineering, law, contract conditions and dispute resolution.  Languages: English and Chinese ( and Putonghua).

Education & Professional qualifications 2018 Family Mediation courses (Basic and Advanced) of HK Family Welfare Society 2016 Adjudicator course, organized by HKIE (HK Institution of Engineers) 2016 China Shipping Law course, organized jointly by HKU & Dailan Maritime University 2013 Dispute Resolution Advisor course, organized jointly by HKIAC & HKIE 2002 MSc in Information Engineering, Chinese University of HK 1997 MA in Arbitration & Dispute Resolution, City University of HK 1996 PCLL (Postgraduate Cert in Laws), University of HK 1993 LLB (Bachelor in Laws), University of London 1985 UK Engineering Council Part 2 Examination (equivalent to UK engineering degree)

2019 included in Legal Aid Panel as panel lawyer 2018 included in DOJ briefing out list of Government Briefs in Civil Matters 2015 included in HKIE List of Arbitrators. 2015 Barrister-at-law, HK Bar Association (private practice) 1999 Admitted to the Bar of Hong Kong 1998 FCIArb (Fellow of the Chartered Institute of Arbitrators, UK) 1991 MHKIE (Member of the Hong Kong Institution of Engineers) 1988 CEng, MIET (Chartered Engineer & Member of Institution of Eng & Technology, UK)

Areas of current practice as Barrister [private practice since 2015]* Arbitration / Construction disputes, Civil / Commercial litigations, Planning / Environmental, Regulatory / Criminal offences, Matrimonial, Probate and Mediation.

For Civil proceedings Acted as Counsel representing plaintiffs / defendants before courts and tribunals; handled interlocutory applications (pleading amendments, summary judgment) and trial; provided

1 legal advice, compiled court documents including pleadings, skeleton submissions and grounds for appeal (* see separate sheets of Counsel’s experience in handling Construction / Commercial disputes).

For Criminal proceedings Acted as Defence Counsel for defendants in trial, plea and sentence, bail applications and magistracy appeal in general crime, regulatory and traffic offences. Also, act as duty lawyer for defendants assigned by the Duty Lawyer Service at Magistrates’ Courts.

Other legal service - Act for claimants in Non-refoulment Claims and participate in the Free Legal Advice Scheme at District Office, both organized by Duty Lawyer Service.

Speaker in recent seminars / short course  September 2019, as Speaker for a seminar “Industrial Safety : Criminal liability on all Stakeholders” held for participants from construction / engineering sectors;  August 2019, as Speaker for a seminar “Mediation, Arbitration and Litigation : Concerns and Constraints for Engineers and Contractors” held for participants from construction / engineering sectors;  December 2017, as Speaker for a short course “Safety Management : Legal Perspectives and Cases Update” (approved by the Safety Specialist Committee of HK Institution of Engineers as CPD course), held for participants from construction / engineering sectors;  December 2017, as Guest Lecturer to talk about “Form of Contracts – Some Major Terms and Common Issues in standard contracts [Government / Private projects]” held for university students of LLM in Arbitration and Dispute Resolution of City University of HK.  July 2017, as Speaker for a seminar “Renovation and Construction Works : Some Common Legal Issues” organized by a Yuen Long District Councillor, held for residents in his constituency area;

Employment Records and Projects experience (as Engineer) [1988-2014] Over 25 years’ extensive experience as professional engineer in Construction Management, Procurement, Contracts Management, Claims Assessment (Extension of Time and Costs Claims), Final Account and Settlement. Undertook various project management posts in major railway / infrastructure projects as listed below.

Civil projects  HyD Central-Wanchai Bypass Project, Contract HY/2009/19 2013 – 2014, as Commercial Manager of Chun Wo Responsible for contractual and claims submissions, commercial and sub-contracts matters for the civil works contract, which involve diaphragm walls, cut & cover tunnel, land and marine piles, piers and cross-heads, precast segments, segment erection, noise barrier works, road works and landscaping works.  CEDD Liantang / Heung Yuen Wai Project, Contract 3 (similar role to above)  HyD Shenzhen Western Corridor and Deep Bay Link Project 2004 – 2005, as Senior Resident Engineer of Ove Arup & Partners Responsible for project management, contractual matters and claims assessment related to all E&M works of the project.

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Railway projects  Operating Railway projects of MTR - Station Improvement Works, Systems Replacement Works and Maintenance contracts 2007 – 2012, as Contracts Administration Manager of MTR Responsible for the procurement, contract administration and claims assessment of all contracts related to stations improvement works, railway systems replacements and maintenance for existing Operating Railway (all lines after merger of KCR and MTR).

Note in around 2012, involved as the employer’s team with the contractor of Tai Po Station Improvement Works Contract for a dispute of final account by mediation. Prepared and presented to the management the position paper relevant for the mediation. The dispute was resolved amicably just before the mediation hearing.  Railway Extension projects of KCR – Ma On Shan Line, Spur Line and Southern Kowloon Link 2005 – 2007, as Senior Manager - Railway Systems Contracts of KCR Responsible for the procurement, contract administration and claims assessment of all railway systems contracts of KCR’s new railway projects  Two IFC project of MTR at Hong Kong Station 2003 – 2004, as Project Manager (Property) of MTR Property Div Responsible for project management, site tests, statutory inspections and handover of the 88-storeys Two IFC and podium from developer to MTR’s Property Management team.  New Railway projects of MTR - , Quarry Bay Relief Works and Airport Railway 1993-2003, as Senior Construction Engineer of MTR Projects Div Responsible for construction management, statutory inspection and opening of the new railway, claims assessment and final accounts of contracts related to station building services, tunnel systems, transport interchanges for MTR’s new railways projects.

Other Infrastructure projects  DSD North West Kowloon Sewage Disposal Project 1990-1992, as Resident Engineer of Watson Hawsley (HK) Ltd Responsible for project management of E&M works for the sewage project  Aurayai Gas Based Combined Cycle Thermal Power Plant in India 1988-1990, as Project Engineer Hong Kong Electric Co Ltd seconded to the Japanese turnkey contractor of the power station project. Responsible for technical submissions, site works and commissioning of high voltage equipment for the Thermal Power Plant.

Publications Articles published in the Journal of Hong Kong Institution of Engineers:  “AG v Shimizu: Compound or Simple Interest”, May 1998;  “When an Arbitrator errs”, April 1998;  “Update on Alternative Dispute Resolution in Government Projects”, January 1997.

*see separate sheets of Counsel’s experience in handling Construction / Commercial disputes

3 Counsel’s experience in handling Construction / Commercial disputes

1- Civil litigation at District Court – Breach of contract case Counsel representing the E&M Sub-contractor to pursue its claim for works completed but unpaid under the final account, against various interested parties of a composite building project including the Main Contractor, the associated Project Owner and the Holding Company of the same Group. Key issues include causes of action for breach of a settlement agreement and the works contract, and also alternative causes of action under the restitution of unjust enrichment.

2- Architect / Sub-contractor dispute– Provisions of Builder’s Work for Common Lift Shafts Provided legal opinion to the Nominated Lift Sub-contractor on the interpretation of the relevant GS and PS clauses related to the scope of Builder’s Work, in particular whether the extent of any Builder’s Work to be provided by the Main Contractor for the Common Lift Shafts specified in the GS has been superseded or modified by the PS. The dispute arose from site level discussions between the Architect and the Sub-contractor in a construction project for a Government composite building, and was being referred to the DRAd under the dispute resolution procedure of the Main Contract (potential Arbitration case).

3- Arbitration case - Breach of contract Counsel representing the Claimant (building work Sub-contractor) to pursue its claim against the Respondent (Main Contractor) arising from termination of the works contract of a composite building project. Key issues included breach of contract, variations, EOT, prolongation cost, insurance claims etc, and the defence to Respondent’s counterclaim on liquidated damages and contra charges. Compiled submissions for Claimant and addressed procedural issues with the sole Arbitrator related to the Statement of Claims, Reply and Defence to Counterclaim, witness statement and expert reports etc.

4- Winding up proceedings at Court of First Instance - Final payments to NSCs Counsel representing one of the NSCs to contest the Provisional Liquidators (PLs) of the Main Contractor (MC) ’s claim in the winding up proceedings, on grounds of legal principles applicable to the relevant contract provisions governing the Retention and Non-retention money of the final payments to Nominated Sub-contractors (NSCs). The matter arose from the construction project of university student hostels, when all Works under the Main Contract and Nominated Sub-contracts were completed but the MC was in liquidation before the final certificates were issued. Key issues include whether, as a matter of law, those final payments to NSCs under the final certificates belong to the PLs for distribution to all creditors, or remain as payments to NSCs entitled under the relevant contract provisions.

[The PLs’ case was dismissed in Court of First Instance in Sept 2020. The PLs then lodged an appeal to Court of Appeal of which a hearing date in Oct 2021 is now scheduled.]

5- Appeal to Court of First Instance - FSI contractor disciplinary proceedings Counsel representing the FSI Contractor to lodge an appeal to the Court under the Fire Service (Installation Contractors) Regulations. The matter arose from the FSI Disciplinary Board’s decision to remove temporarily the Contractor on the FSI Registers of Class 1 and Class 2 for some months, upon FSD’s recommendation for disciplinary action after its investigation of some complaints related to FSI work carried out in 2 buildings under individual contracts of FSI maintenance work and FSI Improvement work. Key issues for the appeal included the improper / unfair procedure for the hearing before FSD / Board, the

4 types of FSI work involved, the nature of the complaints, whether technical or commercial, the burden of proof and evidence to support the complaints etc.

6- Appeal Tribunal (Building) case – validity of Demolition Order related to a village house Counsel representing the Appellant owner of a NT Village House and compiled ground of appeal to challenge the validity of a Demolition Order issued by the Building Authority against him in respect of the demolition of the Village House. Key issues include validity of the Demolition Order on grounds of the exemption to village houses existed before the former statute, the Building (Application to New Territories) Ordinance Cap 322 (now repealed by Cap 121), whether any Unauthorised Building Works (UBW) identified by BD’s consultant, and the technical constraints of the adjacent environment of the village house render it impossible to comply with the Demolition Order within 180 days.

7-Lands Tribunal action – vacant possession of premises Counsel representing the Developer to recover vacant possession, mesne profits and damages against 3 Tenants of domestic units of an old building on ground of redevelopment.

8- Vendor/Purchaser dispute – UBW related to a sale and purchase agreement for a shop Provided legal opinion to the Vendor of a shop in a dispute originating from the Purchaser’s requisition of alleged structure of Unauthorised Building Works (UBW), its implication to title and Vendor’s obligation under the sale and purchase agreement.

9- Mediation case - Renovation works for top class office floors Counsel representing the Main Contractor in a dispute of final account with the Project Owner regarding the evaluation of all variation work and attendance provided to Project Owner’s contractors / suppliers. The dispute arose from renovation work completed but final account unpaid under a renovation work contract for premier office floors. After lengthy discussions, the Main Contractor served a Notice of Arbitration under the 3-stages dispute resolution clause that provided for Negotiation, Mediation and Arbitration. Key issues included principles relevant to fair rates for valuation of variations of similar work; interpretation of contractual provisions on charging attendance provided to the Project Owner’s contractors / suppliers, and procedural matters relevant for Mediation / Arbitration under the dispute resolution clause. Parties eventually settled in the Mediation stage.

10- Civil litigation at District Court - Steelwork contracts case Counsel representing the Sub-contractor to pursue its counterclaim and resist the Supplier’s claim for disputes in contract performance and final account arising from a no. of purchase orders which provide for the supply of fabricated steelwork to Government and private projects. Key issues in the trial include whether there is any breach of contract, if so, by whom; and whether each contract includes any express terms, oral terms and implied terms relevant for the provision of mill certificates and payment terms for all steelwork delivered to project sites.

11- Civil litigation at Court of First Instance – final account of a renovation works contract Counsel representing the Main Contractor to pursue its claim against the Architect, and resist the Architect’s counterclaim for disputes in the final contract sum for renovation works completed for a prestigious beauty health Club. Key issues include the terms of the contract, whether the Main Contractor was entitled to extra costs for all changes executed, with or without written instructions, and the proper approach in quantifying the re-measurement

5 items, provisional items and variations work for the final account.

12- Civil Litigation at District Court – Sub-contract for disposal of excavated materials Counsel representing the Plaintiff (3rd-tier Subcontractor) to pursue its claim against the Defendant (2nd-tier Subcontractor) for work completed, and resist the counter-claim for disputes arising from a sub-contract for the disposal of excavated materials from a railway project site. A dispute arose between the Plaintiff and the Defendant arising from the termination of the sub-contract by the Defendant. Key issues include whether there is any breach resulting in repudiation, if so, by whom and the damages for such repudiation.

13- Civil Litigation at Court of First Instance – Curtain wall supply contacts Provided legal opinion to the PRC based curtain wall Manufacturer as to the merits of its claim to enforce in HK the judgement sum of a PRC judgement obtained in its favour against the HK based Sub-contractor for disputes over curtain wall work designed and supplied for a Singapore project; and the approach to deal with the repudiation and damages alleged in the counterclaim by the Sub-contractor, and the approach to pursue its own counterclaim to counterclaim for 2 similar HK projects.

14- Owner/Contractor dispute - final account of renovation work contract Provided legal opinion to the Main Contractor on interpretation of contract terms relevant to additional work executed under a renovation work contract for premier office floors spilt into 2 phases. Key issues include whether, for the purpose of final payment for phase I work, the specified attendance and service and the executed attendance and service differed, if so whether the difference contributed to additional payment. The interpretation of those relevant clauses would impact on the phase II work.

15-District Court action – IO / Owners dispute related to Unauthorised Building Works Counsel represented the Incorporated Owner in interlocutory proceedings to provide legal advice and deal with issues relevant for its claim against two shop owners on alleged Unauthorised Building Works (UBW) and breach of DMC and interlocutory applications to amend pleadings and to adduce expert evidence.

16- Owner/Developer dispute - Water leakage and defects in a newly completed property Provided legal opinion to a property Owner regarding the merits for legal action and civil remedies against the Developer arising from serious water leakage and construction defects of a newly completed luxurious domestic unit.

17- Court of Appeal action – appeal from a High Court judgment for a property claim Provided legal opinion to the Appellant and compiled grounds of appeal arising from a judgment in favour of the Respondent over the ownership of a property (part of the estate) involving Common Intention Construction Trust.

18-High Court action – distribution of proceeds of sale of a mortgaged property Counsel representing the Money Lender company (second mortgagee) and provided legal opinion regarding the pros and cons for dealing with the proceeds of the sale of a property under mortgage loans among the competing interests of the Bank (first mortgagee), Money Lender and the Borrower.

6 19-High Court action –dispute involving interests related to a residential property Counsel representing the Occupiers of a residential property and compiled pleadings to resist claim for possession and damages of rents / mesne profits from the successors of the legal owners, and to counterclaim damages based on promissory / proprietary estoppel, breach of contract and equitable lien.

20-High Court action – dispute involving economic torts and copyright infringement Counsel representing the Corporate and Individual Parties to defend various claims from the rival Competitor and former Employer including Economic Torts (breaches of duties of employees and fiduciaries, breach of confidence, procurement in breach of contract, knowing receipt, unlawful means conspiracy to injure business) and Copyright Infringement.

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