Hon. Dennis Kwok Legislative Council Member, Functional Constituency, Legal

二零一七年八月 August 2017 HK$280 HONG KONG LAWYER h k - l a w y e r . org

Cover Story Face to Face with Hon. Dennis Kwok Legislative Council Member, Functional Constituency, Legal

A 封面專題 ugust 專訪

2017 立法會法律界功能界別郭榮鏗議員

REGULATORY 監管 CYBERSECURITY 網絡安全 DISPUTES 爭議 The Egg Drop Container: Hong Kong’s Lessons from the WannaCry Hong Kong Court Opens Door to Winding Up Financial Institutions (Resolution) Ransomware Attack Foreign Company Arbitration Award Debtor on Ordinance 以WannaCry勒索軟件所發動的攻擊 Basis of Its Secondary Listing in Hong Kong 防護雞蛋墜地的裝置：香港的為戒香港法院基於外國公司仲裁裁決債務人在香港的《金融機構(處置機制)條例》第二上市而容許對其進行清盤香港律師 Overview Agenda at a Glance* Asian Legal Business is proud to present the • The Forensic Response to a Regulatory Hong Kong 2017 In-House Legal Summit taking Investigation place on 12 September. ALB’s signature annual • How to Handle ADR Proceedings Like Mediation summit gathers together in-house counsels, legal or Adjudication: Best Practices, Tactical practitioners and industry experts to discuss recent Considerations and Pitfalls regulatory changes, hot pressing legal issues and • Exploring Cross-Border M&A Opportunities best practice solutions in Hong Kong and the Greater across Asia Pacifi c and the Greater China Region China region. • Addressing Day-to-Day Challenges Faced by In- House Lawyers Current Speakers Confi rmed To Date • Strengthening Hong Kong’s Anti-Money Guest of Honour and Keynote Speaker • Jose Martin R. Tensuan, Partner, ACCRALAW Laundering Regime Wesley Wong, SC • Jose Eduardo T. Genilo, Partner, ACCRALAW • Tips on Optimizing your Company’s Legal Solicitor General, • Oliver Massmann, Partner, Duane Morris Department Management Department of Justice, Vietnam LLC • Investment Opportunities and Challenges in Hong Kong • Robin Snasdell, Managing Director, Consilio Vietnam & Myanmar • Joshua Cole, Managing Partner, Ashurst Hong • Addressing Multi-Jurisdictional Cyber Offenses Kong in the Philippine Context • Chin Yeoh, Partner, Ashurst Hong Kong • Cybersecurity and Data Protection – How Should • Patricia Woodbury, Managing Director, Risk & In-house Counsels Deal with Real-World Legal and Investigations, FTI Consulting Regulatory Issues • Sean Lam, Managing Director, Risk & • The Liabilities of In-House Counsels Investigations, FTI Consulting • Dr Christopher Boog, Partner, Schellenberg Wittmer Are you interested to speak on any of the above • Wai B. Zee, General Counsel, Asia Pacifi c, WeWork topics?** Please contact Willy Leonardi at • Kevin Brocklehurst, Head of Legal & Governance, [email protected] Summit Chairperson Group Investments, AIA Stephanie Sheng • Stephen Wong, Privacy Commissioner for If you are a law fi rm or legal services provider and Executive Director and Personal Data, Hong Kong would like to be involved in this event, please contact Senior Counsel, • Nick Malhotra, Director Compliance Asia Pacifi c, Amantha Chia at [email protected] Goldman Sachs Philip Morris International or call +65 6870 3917. • Beverly Chau, Asia Pacifi c Legal Counsel, L’Oréal • Kevin Wilkey, Head of Legal, Asia, MetLife ------• Kevin Marr, Assistant General Counsel, Global Financial Crimes Legal, JPMorgan Chase Register now at www.regonline.com/HK-IHLS2017 • Maaike van Meer, Chief Legal & Compliance O f fi c e r ,AXA Insurance Hong Kong Complimentary passes are available for in-house • Fiona Phillips, Associate General Counsel, The legal counsels subject to fi rst come fi rst serve basis. Hongkong and Shanghai Banking Corporation Limited For more information about this event, please visit • And many more pending confi rmation! www.legalbusinessonline.com/ihs/HK-IHLS2017 Summit Chairperson * This is a working agenda. ALB reserves the right to amend the agenda and speakers at anytime. Yea Ji Sohn ** The speaking/panel slots at this event are reserved for in-house legal/compliance professionals, while law fi rms/solutions Senior Counsel, APAC, providers speak on a sponsorship basis. Uber Technologies

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Annual Subscription 全年訂閱: HK$3,360 12 COVER STORY 封面專題 Face to Face with 專訪 Hon. Dennis Kwok Thomson Reuters Hong Kong Limited 郭榮鏗議員 Legislative Council Member, Functional Constituency, Legal 16/F, Cityplaza 3, Taikoo Shing, Hong Kong 香港立法會法律界功能界別 Tel: +852 2847 2088 www.thomsonreuters.com 20 LAW SOCIETY NEWS 律師會新聞 ISSN 1025-9554 26 RECREATION AND SPORTS 康樂及體育委員會特寫 © Copyright is reserved throughout. No part of COMMITTEE FEATURE this publication can be reproduced in whole or part without the express permission of the editor. 28 REGULATORY 監管 Contributions are invited, but copies of work should The Egg Drop Container: Hong Kong’s Financial 防護雞蛋墜地的裝置：香港的《金融機 be kept, as Hong Kong Lawyer can accept no responsibility for loss. Institutions (Resolution) Ordinance 構 (處置機制)條例》 36 CYBERSECURITY 網絡安全 Lessons from the WannaCry Ransomware Attack 以WannaCry勒索軟件所發動的攻擊為戒 August 2017 二零一七年八月 HK$280

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EDITOR’S NOTE 編者的話

There is a growing awareness of the negative impact of business practices 隨著近年來被廣泛宣傳的供應鏈風險和濫權行為，越來越 that fail to respect human rights, with much publicity in recent years 多的人意識到不尊重人權的商業行為的負面影響。律師對 focusing on supply chain risks and abuses. It is especially important 這些問題的處理尤其重要，因為侵犯人權行為可能給客戶 for lawyers to be attuned to these issues, as human rights abuses can 帶來法律、財務和聲譽的風險，當被發現後可能會產生嚴 present legal, financial and reputational risks for clients and have severe 重的後果。 consequences when discovered. 根據國際大律師公會所觀察到的，律師事務所越來越多地 As observed by the International Bar Association, law firms are 被依賴去幫助客戶識別和管理人權風險，以及可能與之相 increasingly expected to help their clients identify and manage human rights risks, as well as broader reputational risks that may be associated 關的更廣泛的聲譽風險。隨著人權意識不斷演變，越來越 with them. With human rights constantly evolving and increasingly being 多地反映在硬性法律文書中，機構內部律師也被要求在管 reflected in hard law instruments, in-house lawyers are also being asked 理公司的戰略和聲譽風險方面，包括與人權有關的風險， to play a significant role in managing their company’s strategic and 發揮重要作用。 reputational risks, including those that relate to human rights. 為了幫助那些參與提供全球企業諮詢的律師，國際大 To assist lawyers who are involved in advising businesses globally, the 律師公會法律政策和研究組，於2017年7月17日發布 International Bar Association Legal Policy and Research Unit (“IBA LPRU”) 了“Handbook for Lawyers on Business and Human released a Handbook for Lawyers on Business and Human Rights on Rights”；該手冊提供指導，說明如何解決與某些法律實 17 July 2017, which provides guidance on how to address human rights 務領域有關的人權風險：企業兼併，收購和重組; 和商業 risks in relation to certain legal practice areas: corporate mergers, acquisitions and restructuring; and commercial contracts, including 合約，包括供應、分銷和特許經營協議。 supply, distribution and franchise agreements. 為了提供進一步的支持，國際大律師公會法律政策和研 To offer further support, the IBA LPRU has also developed a curriculum 究組還制定了關於商業和人權律師的課程和培訓計劃， and training programme for lawyers on business and human rights, which 今年將與澳大利亞法律委員會的合作下在澳大利亞作試 will be piloted this year in Australia, in partnership with the Law Council 點推出。國際大律師公會法律政策和研究組將監測和評 of Australia. The IBA LPRU will monitor and assess the pilot programme’s 估試點計劃的影響和可以再改進的地方，因為他們希望 impact and areas for potential improvement in hopes of replicating it in 將其複製到其他司法管轄區。業界透視中「人權」一文 other jurisdictions. The author of the Human Rights insight (p. 52) speaks 的作者(第53頁)更多地談到了該手冊，以及培訓計劃及 more about the Handbook, as well as the training programme and its future potential. 其未來潛力。 The author also notes that for initiatives like the IBA LPRU to succeed 希望一旦向其他國際大律師公會成員提供此項計劃時，其 in any jurisdiction, the entire legal profession, including legal regulators 他法律社群的領導人，包括法律監管者，將會支持和為當 and bar associations, must be engaged and fully supportive. Hopefully, 地的複制進行遊說，並藉利用該「手冊」和其他類似的舉 once this programme is available to other IBA members, leaders in other 措，以確保當地律師有足夠的能力向企業提供諮詢。 legal communities, including legal regulators, will support and lobby for its local replication, in addition to drawing upon the Handbook and other similar initiatives to ensure local lawyers are adequately equipped to advise businesses.

Cynthia G. Claytor Cynthia G. Claytor Editor, Hong Kong Lawyer 《香港律師》編輯 Legal Media Group Thomson Reuters Legal Media Group 湯森路透 [email protected] [email protected]

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Government Support for the Development of the for the legal profession as in some other jurisdictions. Legal Profession One recent frustrating experience was Being the executive authority responsible government include enhancing Hong the rejection by the Government of the for formulating and implementing Kong’s status as a centre for international Law Society’s application for space in policies and drawing up budgets for the legal and dispute resolution services the West Wing of the former Central allocation of resources, the government in the Asia-Pacific region and as a key Government Offices (“CGO”), which has is in a unique position to influence and link for the Belt and Road, leveraging been set aside for use by law-related determine the future development of on Hong Kong’s unique competitive organisations. The Government aims the territory. Government leadership qualities including the availability of to create a Legal Hub at the heart of in showing support for an initiative, a legal talent with multi-jurisdictional Hong Kong comprising the West Wing project or a sector raises territory wide practice experience. of the former CGO, the former French awareness and motivates progress. Mission Building and the Department In alignment of these policy objectives, of Justice offices in the Main Wing and I was deeply impressed by the strong the Law Society has been actively the East Wing of the former CGO. The support given by the Sri Lankan promoting Hong Kong legal services Law Society is a law-related organisation Government to its legal profession at to the international community at that has put in much effort to promote the recent POLA (Presidents of Law every possible opportunity. We are Hong Kong’s legal and dispute resolution Associations of Asia) Summit hosted also putting in substantial efforts to services and is in need of additional by the Bar Association of Sri Lanka in enhance the global understanding space to continue to do so. The denial Colombo. His Excellency, of the unique position of Hong Kong of our presence in the Legal Hub is Hon. Maithripala Sirisena, President as a Special Administrative Region of disappointing, which is telling of the level of the Democratic Socialist Republic of the People’s Republic of China under of support the Government accords to Sri Lanka, attended the Summit. Prime the implementation of the concept of the legal profession. Minister Hon. Ranil Wickremesinghe One Country, Two Systems. Through and Attorney General Hon. Jayantha networking with law societies and bar Apart from direct support like allocation Chandrasiri Jayasuriya also spared time associations around the world, the of space, there is also room for to speak to the delegates. The gracious Law Society has established extensive improvement in the indirect support that attention given by the national leader connections with legal professionals the Government can give to the legal to the Summit speaks volumes about in different overseas jurisdictions, profession. Just to list a few examples the respect and support the nation has laying a good foundation for future of support that the Government may for the legal sector reaching out to the collaborative initiatives for the benefit of provide: international community. our members. On the other hand, the • more market information and Law Society is injecting more cross- Another example of strong government more guidance on policy direction border and international elements in leadership in supporting the legal in economic initiatives (eg, on the our professional training programmes profession is Singapore. To encourage priority jurisdictions in the vast to equip our members to meet law firms to use technology to improve area covered by the Belt and Road the increasing demands for multi- their productivity, the Singaporean Initiative that the legal service sector jurisdictional legal and dispute resolution Government has allocated up to S$2.8 should focus its efforts in exploring services. million to law firms as funding support of expansion opportunities); up to 70 percent of the firms’ first-year’s While the Law Society is trying its best • more resources to improve and cost for technology products in practice to champion these causes, as a local modernise Hong Kong’s capability to management, online research and online professional body, our resources are host international legal conferences marketing. limited and it is disappointing that the enabling the legal profession to Government has not been as supportive In Hong Kong, the policy objectives of the strengthen its worldwide connections;

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• more resources to support training 政府對法律界發展的支持公會建立網絡，律師會與海外司法管轄區的 for practising law in Chinese 法律專業人士建立了廣泛聯繫，為日後的合 including strengthening the 作為負責制定和實施政策、擬定預算、分作奠定了良好基礎，為會員帶來利益。另一 bilingual capability of students 配資源的行政機關，政府處於能影響和決方面，律師會正為專業培訓計劃注入更多跨 from early schooling and building 定未來發展的獨特地位。政府高層對一個境和國際元素，配合會員的需要，以應付跨 up a comprehensive supply of 倡議、項目或界別表示支持，即能提高市司法管轄區的法律和爭議解決服務日益增加 resources in respect of law books, 民對它的關注，推動其發展。 precedents and judgments in 的要求。 Chinese; 我最近前赴科倫坡，出席由斯里蘭卡律儘管律師會盡力支持，但作為一個本地專業團 • more resources to enable the 師協會主辦的POLA(亞洲律師協會會長) 體，我們的資源有限，而令人失望的是，政府 implementation of appropriate 高峰會。斯里蘭卡政府對該國法律界的對法律界的支持並未如其他司法管轄區。 technological tools to improve the 鼎力支持，令我留下深刻印象。斯里蘭最近一個令人沮喪的消息，是政府拒絕了律 efficiency of the legal system; 卡民主社會主義共和國總統Maithripala 師會使用前中區政府合署西座的申請，該處 • long-term education planning Sirisena先生撥冗出席了會議，總理已騰出供法律相關組織使用。政府有意在前 to properly prepare the next Ranil Wickremesinghe先生及司法部長中區政府合署西座、前法國外方傳道會大樓 generation to master and take Jayantha Chandrasiri Jayasuriya先生亦出及前中區政府合署中座及東座的律政司辦公 advantage of the rapid evolution 席並向與會者講話。國家領導人出席高峰室，在香港市中心打造法律樞紐。律師會是 of information technology. 會，向國際社會展示了國家對法律界的高法律相關組織，一直致力推廣香港的法律和 The legal profession is the backbone 度重視與支持。 of society tasked with the heavy 爭議解決服務。本會需要額外的空間，才能 responsibility of defending the Rule 另一個政府對法律界大力支持的例子是新繼續進行這方面的工作。拒絕我們進駐法律 of Law and protecting the legal rights 加坡。為鼓勵律師行利用科技來提高生產樞紐，是個令人失望的決定，說明了政府對 of the public. It is important that the 力，新加坡政府撥出280萬新加坡元，支法律界的支持度。 profession maintains a healthy and 持高達70%律師行在執業管理、網上研除了分配空間等直接支持，政府向法律界提 sustainable development. Support 究和網上市場推廣方面首年的科技產品成供的間接支持，亦有改善空間。以下是政府 from the Government to achieve this 本。 is essential. Members’ views and wish 可提供支持的一些例子： lists on what the Government can do 在香港，政府的政策目標包括提升香港作 • 就經濟措施的政策方向提供更多市場信 more to support the development of 為亞太區國際法律及爭議解決服務中心的息和引指 (例如「一帶一路」廣闊的幅原 the profession are always welcome. 地位；作為「一帶一路」的主要聯繫人；中，法律界應著力開拓機遇的重點司法發揮香港獨有的競爭力，包括擁有在多個管轄區)；司法管轄區具執業經驗的法律人才。 • 提供更多資源以改善和現代化香港舉辦為配合這些政策目標，律師會積極爭取機國際法律會議的能力，令法律界能夠加會向國際社會推廣香港的法律服務。我們強與全球的聯繫；也致力令世界認識香港作為中華人民共和 Thomas So, President • 提供更多資源支持中文執業培訓，包括國特別行政區、實施一國兩制的獨特地在早期教育加強學生的雙語能力、建立位。通過與世界各地的律師協會和大律師中文法律書籍、判例和判決書的綜合資源； • 提供更多資源以落實利用適當的科技工具來提高法律系統的效率； • 進行長期的教育規劃，令下一代作好準備，掌握和利用發展迅速的資訊科技。法律界是社會的骨幹，肩負維護法治、保護公眾合法權益的重責。法律界必須保持健康而可持續發展，而政府的支持對實現這點至關重要。會員如對政府可如何支持行業發展有任何意見，歡迎向本會提出。蘇紹聰會長

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CONTRIBUTORS 投稿者

Antonio Da Roza 羅敬韜 Liberty Chambers, Barrister Liberty Chambers 大律師 Antonio Da Roza is a barrister-at-law at Liberty Antonio Da Roza是Liberty Chambers的大律師。 Chambers. He is a contributor to Hong Kong Civil 他是“Hong Kong Civil Procedure”；“Hong Procedure; Hong Kong Archbold; Securities and Kong Archbold”；“Securities and Futures Or- Futures Ordinance Commentary and Annotations; dinance Commentary and Annotations”的撰稿 and the author of the Amendments and Transitions to Cap. 32: A Visual Guide; The New Companies 人及“Amendments and Transitions to Cap 32: Ordinance: A Visual Guide; Companies (Winding Up A Visual Guide”；“ The New Companies Or- and Miscellaneous Provisions) Ordinance Commentary dinance: A Visual Guide”；“Companies (Wind- and Annotations (2d Ed.); and the new Financial ing Up and Miscellaneous Provisions) Ordinance Institutions (Resolution) Ordinance Commentary and Commentary and Annotations”（2d Ed.）； Annotations. 及“Financial Institutions (Resolution) Ordinance Commentary and Annotations”的作者。

Ben Yates Ben Yates RPC, Senior Associate in Commercial Disputes RPC，商業糾紛部高級律師 Ben Yates is an experienced commercial litigation Ben是RPC香港辦事處有經驗的商業訴訟和仲 and arbitration solicitor in RPC’s Hong Kong office. 裁律師。他的專業專注於涉及網絡法，數據 His practice focuses on complex disputes involving 保護和金融科技的複雜糾紛，往往具有跨境成 cyber law, data protection and fintech, often with a 份。 cross-border element.

8 www.hk-lawyer.org August 2017 • CONTRIBUTORS 投稿者

Rico Chan Rico Chan RPC, Trainee Solicitor RPC，實習律師 Rico Chan is trainee solicitor in the Insurance and Rico Chan是RPC的保險和商業糾紛小組的實 Commercial Disputes teams at RPC handling a wide 習律師，處理涉及合約和股東糾紛、僱傭、專 range of contentious matters covering contractual 業疏忽、保險賠償、國際仲裁、監管諮詢、債 and shareholder disputes, employment, professional 務追償、清盤程序和中國相關的訴訟等之廣泛 negligence, insurance coverage, international 爭議事項。他對網絡法律及數據保護特別感興 arbitration, regulatory advisory, debt recovery, liquidation proceedings and China-related litigation. 趣。 He has a particular interest in cyber law and data protection.

Damien McDonald 麥道民 Fangda Partners in association with Peter Yuen & 上海市方達律師事務所聯營阮葆光律師 Associates, Partner 事務所合夥人 Damien McDonald specialises in international 麥道民專長於國際仲裁，特別是中國相關爭 arbitration with a particular focus and expertise 議。他在處理香港、英國和澳洲的商業糾紛 in China-related disputes. He also has extensive 方面也具備豐富經驗。他曾在香港、北京、 experience in dealing with commercial disputes in 上海、倫敦和澳洲執業，領導本地和國際解 Hong Kong, the United Kingdom and Australia. He has practiced with leading local and international dispute 決爭議的團隊。 resolution teams in Hong Kong, Beijing, Shanghai, London and Australia.

Matthew Townsend 馬修 Fangda Partners in association with Peter Yuen & 上海市方達律師事務所聯營阮葆光律師 Associates, Legal Manager 事務所法律經理 Matthew Townsend has represented clients in arbitration 馬修代表客戶在多個司法管轄區根據各種 proceedings in a number of jurisdictions under a variety 仲裁規則進行仲裁程序，主要涉及能源、 of different arbitration rules, principally in the energy, 基礎設施、建築和技術業。他能說中文， infrastructure, construction and technology sectors. As 亦有在仲裁聆訊中擔任律師的經驗。 a Chinese speaker, he also has experience appearing as advocate in arbitration hearings.

www.hk-lawyer.org 9 • August 2017

FROM THE SECRETARIAT 律師會秘書處資訊

Ms. Heidi Chu, Secretary General 秘書長朱潔冰律師 Legal Tech 法律科技 The breakneck pace at which technology evolves is marvelling. Its ubiquity 科技發展一日千里，無處不在，即使最頑固的「頑 creates an omnipresent influence on even the most intransigent of luddites. 石」，也不得不向科技「點頭」。 The legal profession, which is famed for its recalcitrance to innovation, has 素以抗拒創新聞名的法律界，亦已到了臨界點。法 reached a tipping point. The legal, regulatory and business demands that 律、規管和商界均要求律師必須更快地為客戶提供 lawyers must help their clients navigate ever more quickly by the day has 引導，促使許多希望跟上步伐的執業者尋求科技的 pushed many practitioners, who want to remain relevant, to look towards 協助。 technological solutions for assistance. 然而，利用科技來提高微觀和宏觀層面的效率與價 However, embracing technology to drive efficiencies and value on micro and macro levels comes with challenges – how can lawyers embrace innovative 值，亦不無挑戰－律師如何在不損害職業道德標準 practices without compromising professional ethical standards? 下利用創新實踐？ The tech world has identified a number of major trends in 2017. Among them 科技界在2017年確定了一些主要趨勢，其中包括自 are automation and machine learning. 動化和機器學習。

The legal profession has traditionally been considered a human-exclusive 傳統上，法律界被視為全人手的工作，機器自動化 practice where machine automation had no meaningful role. However, the 的作用不大。然而，新科技工具的發展越來越證 development of new technological tools has increasingly demonstrated 明，科技對法律服務提供者息息相關，作用重大。 technology’s relevance and usefulness to legal service providers. These innovative tools range from the automation of mundane time-keeping 這些創新工具的功能，包括自動化刻板的計時工 tasks to sophisticated legal research work. For instance, timekeeping solutions 作，到處理複雜的法律研究。例如，透過應用人工 can now streamline and simplify the process of tracking billable hours by 智能分析所有設備(包括座枱電腦、手提電腦、手 capturing relevant time, through the application of artificial intelligence (AI) 提電話)的相關時間，優化簡化跟踪可收費時數的過 analysis, across all devices, including desktops, laptops, and mobile, and 程，並向使用者提供每日摘要。 producing a daily summary to the user. ROSS平台的開發，亦引起不少關注。該平台以IBM Much attention has also been drawn to the development of the ROSS Watson電腦建構，具備認知運算和自然語言處理功 platform which is built on IBM’s Watson computer. It is supported with cognitive computing and natural language processing capabilities. Users may 能。使用者可用自然語言向ROSS提出研究問題，就 ask ROSS research questions in natural language as if they were speaking 像對同事說話一樣。人工智能就會「閱讀」法例、 to a colleague. The AI then “reads” through the law, gathers evidence, draws 收集證據、作出推論，然而給予「高度相關」、證 inferences and returns with a “highly relevant”, evidence-based answer. 據為本的答案。

Further, the adoption of AI assisted predictive coding to expedite document 此外，最近在Pyrrho Investments Ltd v MWB review in the maze of millions of electronic documents in litigation was Property Ltd [2016] EWHC 256(Ch)一案中，英 recently considered and approved by the English High Court in the landmark 國高等法院考慮並批准了利用人工智能輔助預測編 case of Pyrrho Investments Ltd v MWB Property Ltd [2016] EWHC 256 (Ch) (“Pyrrho”). 碼，加快審閱數以百萬計的電子文件。 Technological advancements keep pushing new limits in storage capacity, 科技進步令儲存量、晶片密度、下載速度和能源效 microchip density, download speed and energy efficiency. As a result of the 能不斷提高。由於產生和傳送電子信息越來越便 ease and convenience in generating and communicating digital information, 利，電子儲存信息亦每分每秒以不同格式、不同位 large volumes of electronically stored information are being created, 置、在不同司法管轄區被創建、複製和儲存。Pyr- duplicated and stored in different formats, locations and jurisdictions every rho案就是一個例證，顯示司法系統考慮了時間、成 second, every day. The Pyrrho case is illustrative of the cautious readiness of

10 www.hk-lawyer.org August 2017 • FROM THE SECRETARIAT 律師會秘書處資訊

the judicial system to accept the use of technology to solve issues caused by 本、當事人協議等相關因素後，謹慎接受以科技來 technology itself, after having considered relevant factors like time, cost and 解決科技本身造成的問題。 party agreement. 人工智能對我們日常工作的影響，如計時、法律研 AI’s impact on the routine tasks of our day-to-day practice like timekeeping, 究、合約審查或盡職調查分析，在未來只會越漸 legal research, contract review or due diligence analysis will only intensify in the years ahead. Understanding and using technology intelligently to support the 加深。認識和明智地使用科技來支援法律執業的運 operation of our legal practices should be a priority in these changing times. 作，應是這個轉變時代的首要工作。 Non-law firms are aggressively leveraging on their technological skills to erode 非律師行正積極利用科技技能來取替律師行的工作 the scope of work from law firms. Some law firms may not wish to engage in 範圍。有些律師行或許不想從事繁瑣而機械性的任 the tedious and mechanical tasks in any event and may gladly unbundle the 務，也許樂於將服務分割予依賴機器處理的非律師 services they provide to the non-law firms that rely on machines to do them. 行。然而，律師行可在評估在法律服務工作流程中 However, this outcome must still be reached through a conscious choice made 引入科技的利與弊，才作出明智的選擇，而非由於 by the law firms after evaluating the pros and cons of engaging technologically enhanced work processes in their legal practices, and not through erosion of 抗拒創新、失去競爭力，而被非律師行侵佔其市場 their market share by non-law firms due to their resistance to innovation and 份額。 loss of competitiveness. 我們的目標是協助會員成功地探索科技新世界，而 Our goal is to help members navigate this new world ethically and successfully. 同時緊守專業道德。其中一個方法是提供更多實用 One of the ways is to provide more practical skills training on how to use 技能培訓，教導如何有效使用科技。歡迎會員就其 technology effectively. Suggestions on any other ways to assist are always 他方式提供建議。 welcome.

Upcoming Deadlines 截止日期將至 • Those who have successfully applied to sit the 2017 •已成功申請參加2017年海外律師資格考 Overseas Lawyers Qualification Examination are reminded 試者，請注意應考註冊截止日期為2017年 that the closing date for registration to sit the Examination 8月11日(星期五)。 falls on Friday, 11 August 2017. •涵蓋2016/2017彌償年度的律師行專 • The professional indemnity cover for law firms for the 業彌償保險將於2017年 9 月 30日 ( 星期 2016/2017 indemnity year will expire on Saturday, 30 六)到期。如要繼續投保，律師行主管人須於 September 2017. To renew indemnity, principals of law firms should file an Application for Indemnity and a Gross Fee Income Report with 2017年8 月15日或之前，向計劃經理恒利保 the Scheme Manager, ESSAR Insurance Services Ltd (“ESSAR”) on or 險服務有限公司(ESSAR Insurance Services Ltd before 15 August 2017. (“ESSAR”))遞交申請。

Monthly Statistics on the Profession 業界每月統計資料 (updated as of 30 June 2017): (截至2017年6月30日)： Members (with or without practising certificate) 10,558 會員(持有或不持有執業證書) 10,558 Members with practising certificate 9,205 持有執業證書的會員 9,205 (out of whom, 6,896 (75%) are in private practice) (當中有6,896位 (75%) 是私人執業) Trainee Solicitors 1,045 實習律師 1,045 Registered foreign lawyers 1,358 註冊外地律師 1,358 (from 32 jurisdictions) (來自32個司法管轄區) Hong Kong law firms 880 (48% are sole proprietorships and 香港律師行 880 (獨資經營佔48%，2至5名合夥人的 41% are firms with 2 to 5 partners, 15 are limited liability 律師行佔41%，15間為按照《法律執業者條例》 partnerships formed pursuant to the Legal Practitioners Ordinance) 組成的有限法律責任合夥律師行) Registered foreign law firms 80 (9 are limited liability partnerships formed 註冊外地律師行 80 (9間為按照《法律執業者條例》 pursuant to the Legal Practitioners Ordinance) 組成的有限法律責任合夥律師行) Civil Celebrants 2,084 婚姻監禮人 2,084 Reverse Mortgage Counsellors 445 安老按揭輔導法律顧問 445 Solicitor Advocates 49 訟辯律師 49 (44 in civil proceedings, 5 in criminal proceedings) (民事程序：44位，刑事程序：5位) Student Members 213 學生會員 213 Registered Associations between Hong Kong law firms and 36 香港律師行與外地律師行 36 registered foreign law firms (including Mainland law firms) (包括內地律師行)在香港聯營

www.hk-lawyer.org 11 • August 2017

Face to Face with Hon. Dennis Kwok Legislative Council Member, Functional Constituency, Legal

By Cynthia G. Claytor

Dennis Kwok, Legislative Council Member of the Legal Functional Constituency, speaks about his transition from law into politics and his role and current priorities as the legislative representative of the legal profession.

lmost one year into his second term “This was a good decision because the best practitioners in the profession. Aas the legal sector’s Legislative the firm has a phenomenal training “As a barrister, this experience has Council representative, Mr. Kwok remains programme and a wide range of practice been immensely instructive. I also energised about pursuing a diverse areas for young lawyers to explore. find it helpful as the legal profession’s range of legal and regulatory reforms, When I speak to law students now, I tell legislative representative – I can impacting everything from Hong Kong’s them if they are unsure about whether leverage what I learned about law firms’ arbitration regime to its judiciary, all in they would like to be a barrister or internal operations when I am dealing the name of safeguarding the rule of law solicitor, they should consider joining with practice development-related policy and enhancing the ability of Hong Kong a solicitors’ firm with a broad range of issues. This background has certainly lawyers to thrive at home and abroad. specialisations. That way, they will have given me a better understanding of the the opportunity to explore different legal profession than I otherwise would Speaking about his early legal career practice areas during their two year have had,” he explained. and transition into politics, Mr. Kwok training contract. As a trainee, I was able provides key insights into core values Mr. Kwok indicated that a key factor to rotate between the corporate finance, that have driven him to excel as a civic- in his decision to move to the Bar was insurance, litigation and arbitration minded lawyer and legislator. his desire to work on a wider range of teams, as well as be seconded to London legal issues such as judicial review and for six months. That experience created Legal Career constitutional challenges facing Hong a strong foundation upon which I have As Mr. Kwok neared his second year Kong. “I did enjoy working on large built my legal and political career. I still of law school, he had no clear idea of commercial cases, but I also started to draw upon that training in the work I do whether he wanted to be a solicitor or develop an interest in looking at many today,” he said. a barrister. Given his uncertainty, he other legal problems within the Hong decided to apply for a training contract Post-qualification, Mr. Kwok practiced Kong community. This motivated me to and got an offer from Herbert Smith, as a solicitor for three years with Herbert take up pro bono legal work – giving free which he accepted. He joined the firm’s Smith before transitioning to the Bar in legal advice at a public housing estate. Hong Kong office after completing his 2006. During this time, he worked on a In the end, it led me to question and PCLL studies at the University of Hong number of complex commercial disputes eventually revise my long term career Kong, where he remained for 5 years. and was able to learn from some of plan.”

12 www.hk-lawyer.org August 2017 • COVER STORY 封面專題

Hon. Dennis Kwok

www.hk-lawyer.org 13 • August 2017

“Being a barrister has given me more upon what I learned when presenting experience in my political career. A great freedom over my time, as well as choice arguments in court or handling deal is expected of us as a profession over the type of work I take on. It has negotiations. The skills you develop – namely, that the public expected us also allowed me to transition into through legal practice are transferrable to be staunch and vociferous defenders politics – where I can strike my own to politics.” of the rule of law; to firmly stand up balance between maintaining my law for separation of powers and our practice and fulfilling my public service Legal Functional Constituency independent judiciary, which are core obligations.” Mr. Kwok indicated that his job as the values of Hong Kong’s common law representative of the legal profession system and enable us to maintain our The Transition involves two major roles. The first status as one of the top jurisdictions in His initial interest in politics, coupled is to defend the rule of law and the the world.” with the emotive effect of local political Constitution, which entails defending “Some people may ask why making stirrings that culminated in the One Country, Two Systems and pushing a firm statement to the international landmark demonstration in the summer for the advancement of democracy in community was necessary. The risk, if we of 2003, gave him the desire to go into Hong Kong. The other involves building did not, is for the White Paper to become politics. His pro bono work at the public on the foundation for the rule of law in our reality in the future. The White housing estate also exposed him to a Hong Kong: to ensure the independent Paper’s positions undercut the values number of influential barristers and Judiciary has enough resources and upon which we’ve built our community, then Legislative Councillors, who were manpower, developing and promoting legal system and Hong Kong as a whole. instrumental figures in the blossoming the Hong Kong legal profession at If we would like to safeguard our way civil movement and provided him with home and abroad, following through of life and our livelihoods, it becomes an outlet to productively channel his on law reform recommendations, and incumbent upon us all to send a clear energy. These barristers would go on to fighting for the expansion of legal aid message on our position to Beijing and form the Civic Party and invite Mr. Kwok and other access to justice issues. Like the international community, and on to join them as a founding member in other legislators, he also works on a our desire to make the One Country, Two 2006. wide range of issues from education Systems work the way it was originally to environmental protection to the designed.” Learning the Ropes economy. Developing the Legal Profession Mr. Kwok noted that there are two Defending the Rule of Law The other core responsibility Mr. Kwok ways to learn first-hand about politics: shoulders is developing Hong Kong’s “You can either join a political party One of the most challenging instances legal services and ensuring laws are or work for the government. I learned that Mr. Kwok recalls in which he was kept up-to-date so the legal profession about front-line politics through my required to defend the rule of law in can thrive. “If the legal profession is not involvement as a founding member of Hong Kong occurred shortly after he took healthy and development is not stable, the Civic Party. I was involved in a lot office. “I was still a very junior legislator in it will impact our ability to maintain of party-related work right from the mid-2014 when the State Council issued the rule of law in Hong Kong. Even if start – elections and a broad range of a White Paper on the Practice of ‘One you have the best system in the world, policy and political issues. It taught me Country, Two Systems’ Policy in the Hong if lawyers are not developing their how to think about and take a stance Kong Special Administrative Region. This practices and young lawyers are unable on different issues, how to present caused a huge controversy both locally to find jobs, we will enter into a period of and internationally, and my position arguments and how to deal with media, decline,” he said. among other things. In those early days, required me to take a firm position. I would also go and sit in on Legislative With the White Paper garnering mass Reform and New Legislation international media attention, there was Council proceedings so I could listen to Mr. Kwok is working with the Law Society a huge amount of pressure – it seemed the debates.” to push for an immediate update and everyone was interested in what this reform of the ‘Scale Rates’ for taxation Law and politics are an extension of White Paper meant for Hong Kong and one another – they are closely related, in the District Court and the High Court the preservation of the One Country, Two which have not been changed since 1997. he continued. “I find that having a Systems regime,” Mr. Kwok said. background in law has helped me He also intends to push for legislation as a legislator. For instance, I draw “This was an important and formative that will facilitate class action lawsuits,

14 www.hk-lawyer.org August 2017 • COVER STORY 封面專題

the further expansion of legal aid, and regime is a ripe area for young lawyers on matters such as listing reforms to specialise. “I have been working to improve Hong Kong’s financial with the Competition Commission regulatory regime. to set up a work programme for young lawyers to go to the UK and Mr. Kwok remains focused on keeping Australia to learn about competition Hong Kong’s laws up-to-date and law and other practice areas – that ensuring there are sustainable work programme is up and running and is opportunities for lawyers, especially open to young solicitors and barristers. for new entrants. Key areas of interest To remain competitive and ensure include strengthening Hong Kong’s sustainable growth with our legal arbitration laws and services, as well services industries, we have to continue as young lawyers’ understanding of the developing new practice areas that give new competition regime. young lawyers room to enter.” Arbitration Listing Reform To bolster Hong Kong as an arbitration hub, Mr. Kwok was instrumental in Mr. Kwok is also intimately involved pushing LegCo to adopt a number in pushing for a host of financial of arbitration-related bills, two of regulatory reforms. “It is very important which were passed in mid-June. One that as an international financial centre, concerned third party funding and the Hong Kong has a first class regulatory other concerned the permissibility of system. Whether it is regulating resolving intellectual property disputes financial services or listed companies, through arbitration. banks or insurance companies – we need to ensure that all are capable “I was the Chairman of the Bills of operating in a safe and balanced Committee for the third party funding regulatory environment. By ensuring bill and made it a priority to get this this, we can make it attractive for law enacted as soon as practicable in international investors to come to Hong a way that the legal profession and the Kong.” broader community would welcome.” Last year LegCo passed the Financial “I have also been pushing for Institution Resolution Ordinance, improvements in the way Hong Kong which will allow regulatory authorities promotes its arbitration services. For to intervene into the operations of example, to develop the new arbitration major financial institutions if there is centre that would be housed in the a meltdown. Looking ahead, listing former Court of Final Appeal and reform is on the horizon. “The Hong making sure we will continue to have Kong Government and regulators need first class arbitration facilities.” to tackle this regulatory quagmire Mr. Kwok hopes that the new legislation – listing reform is essential to make in conjunction with this state-of-the Hong Kong the first class international art facility will enable Hong Kong to financial centre that we say we are,” he maintain its edge as an international said. disputes resolution hub. “In my “The recent crash involving more than mind, this can only lead to more work a dozen listed companies is good opportunities for the profession.” evidence of the imminent need for reform and to root out some of the Competition Law poorly regulated listed companies. I Mr. Kwok noted that the recently will continue working with the SFC and enacted cross-sector competition HKMA to address these issues.”

www.hk-lawyer.org 15 • August 2017

Class Action Law Suits and Other The provision of pro bono legal services is remuneration packages. The salary of Law Reforms another important aspect of addressing High Court judges has recently been Mr. Kwok also briefly noted his efforts the access to justice issue and has been increased to attract more talents to join to push the Government to enact something else that Mr. Kwok is keen to the Judiciary. further develop. “I have been advocating legislation that would facilitate class Mr. Kwok is also pushing for the and working to create more pro bono action lawsuits. “As I am sure most are retirement age of judges to be increased. legal services clinics and to expand aware, the Law Reform Commission “There’s no reason why a talented and the duty lawyers’ scheme. This is very has already recommended there be experienced judge should have to retire important because a lot of people face class action lawsuits in Hong Kong. This at 65. For the High Court, we would like legal problems and challenges, but lack would enable Hong Kong to follow the to see the retirement age be raised from access to legal advice. This is an area development of other jurisdictions and 65 to 70. For the Court of Final Appeals, where I hope the Law Society and the to enable better access to justice.” Other we hope the retirement age will be Bar Association will do more,” he said. areas of law reform which Mr. Kwok is raised from 70 to 75. I’m expecting to see looking at include corporate rescue and Mr. Kwok provided a few examples of a report from the Judiciary this year on debt restructuring, employment and how both legal regulators could assist. that recommendation. Hopefully this will family law reform. “When lawyers go out to do pro bono attract more people to join by enabling work, there is a big question mark as practitioners who join the Judiciary to Access to Justice to whether they will be covered by extend the trajectory of their professional The provision of legal aid is crucial in indemnity insurance – this is something careers.” maintaining the rule of law – namely both regulators could help to clarify. We “In recent years, we have also seen through ensuring access to justice. should make it easier for a more robust unwarranted attacks on the Judiciary Mr. Kwok indicated that he has been pro bono legal culture to flourish in Hong and individual judges. It is part of my working with the Department of Legal Kong,” he explained. duty to defend the Judiciary against Aid and the Government to expand legal While the legal community does have such attacks which are completely aid coverage in Hong Kong. a role to play in addressing the current unacceptable.” “Supplementary legal aid has been access to justice issue in Hong Kong, in expanded and the financial eligibility the end, much of the burden lies with Hopes for the Future limits have also been increased during the Government to create a legal system Looking to the future, Mr. Kwok hopes my time in office, which should enable that is more efficient and less expensive parties from all sides will work together more people and types of cases to be and complicated for the average citizen and bring Hong Kong politics back to covered.” to deal with. a more positive direction. “We need to resolve some of the gridlocks in LegCo Judicial Reform and ensure that much needed reforms Another important aspect of Mr. Kwok’s can be enacted. The new Administration role is making sure the Hong Kong must lead in this effort, and they must judiciary has adequate resources to not push for policies that go against function effectively in 21st Century our core values and the Basic Law. Hong Kong. “Sitting judges are already The next five to ten years will be an working very hard. My job is to ensure important decade for Hong Kong. We that the yearly budget provides enough will need to find a way to move forward resources to enable them to continue on issues such as constitutional reform running an efficient and modern and at the same time preserve our judiciary.” current system and way of life. The last generation was tasked with handling the As the Deputy Chairman of the transition from colonial Hong Kong to Administration of Justice and Legal the Hong Kong Special Administrative Services (“AJLS”) Panel, Mr. Kwok Region. Our generation is tasked with engages with the Judiciary to discuss preserving the system – by safeguarding myriad policy issues – such as their our Constitution and One Country, Two efforts to recruit more judges, as Systems. n well as employment conditions and

16 www.hk-lawyer.org August 2017 • COVER STORY 封面專題

專訪立法會法律界功能界別郭榮鏗議員

作者 Cynthia G. Claytor

立法會法律界功能界別議員郭榮鏗議員暢談他從法律界過渡到政界的過程，以及作為法律界立法會代表的角色和當前的重點工作。

榮鏗議員連任兩屆立法會法律界辦事處，在那裡工作了5年。業者學習。他解釋：「作為大律師，這功能界別代表，本屆立法會開始種經驗非常有啟發性。我覺得它對我當郭他說：「那是個正確的決定，因為該行至今已近一年，郭議員一直致力於各項立法會議員的工作也很有幫助，當我處有出色的培訓計劃和廣泛的實踐機會，法律和監管改革，對香港的仲裁制度以讓年青律師探索。現在我都告訴法律學理執業發展相關的政策問題時，我能夠至司法系統發揮影響，以捍衛法治並加生，如果他們不知道自己想做大律師或利用我對律師行內部運作的認識。這個強香港律師在本地及外地發展為目標。事務律師，就應該考慮加入專業領域廣背景的確令我對法律專業有更深入的了解。」郭律師談及他早期的法律事業和過渡到闊的律師行，在兩年的見習合約期探索政界的過程，闡釋其核心價值如何令他不同的執業領域。我在見習期間輪流參郭議員表示，決定轉任大律師，是因為成為富有公民意識的律師和立法會議員。與公司財務、保險、訴訟和仲裁團隊，他希望處理更廣泛的法律問題，如司法並曾借調到倫敦6個月。這個經驗為我的覆核和香港面臨的憲制挑戰。「我喜歡法律事業法律和政治生涯奠定堅實基礎。見習時處理大型商業案件，但也開始對香港社郭議員在法律學院升讀二年級時，並的經驗仍值得我在今天的工作借鑑。」會其他法律問題產生興趣。這推動我提不清楚自己想成為事務律師還是大律取得資格後，郭議員在Herbert Smith擔供義務法律服務，在公共屋邨提供免費師，所以他決定申請見習合約，並接受任事務律師3年後，才於2006年轉為大法律諮詢。這引發了我的思考，最後改了Herbert Smith的聘用。完成香港大學律師。在此期間，他曾處理一些複雜的變了我的長遠事業規劃。」 PCLL課程後，他加入了該律師行的香港商業糾紛，跟隨法律界一些最出色的執

www.hk-lawyer.org 17 • August 2017

「當大律師令我在工作時間及接受工作捍衛法治的生活方式，就有義務向北京和國際社類型方面有更大自由，亦令我能夠過渡郭議員回憶，捍衛香港法治最具挑戰性會表明我們的立場，我們的意願是保持到政界，在法律執業與履行公共事務職的事件之一，在他上任後不久發生。他一國兩制以原本的方式運作。」責之間取得平衡。」說：「2014年中我仍是新議員，當時國發展法律專業務院發表了《「一國兩制」在香港特別過渡郭議員的另一個核心責任，是發展香港行政區的實踐》白皮書，在本地和國際的法律服務，確保法律跟上社會發展，他最初對政治的興趣，加上2003年夏天社會引起巨大爭議。我身為議員，必須讓法律界蓬勃發展。他說：「假如法律香港政治氣氛下出現了大型示威活動，採取堅定的立場。白皮書引起國際傳媒界不健康，發展不穩定，便會影響香港令他有志從政。他在公共屋邨提供義務廣泛關注，似乎每個人都對白皮書對香維持法治的能力。即使擁有世界上有最法律服務，亦令他接觸到多位具影響力港的意義和維護一國兩制感興趣。」的大律師和立法會議員，他們是公民運好的制度，如果律師未能發展其專業，「這是我在政治生涯中的一個重要的成動中舉足輕重的人物，為他提供了發揮年青律師也找不到工作，我們就會陷入形經驗。公眾對法律界期望甚殷，期望能量的渠道。這批律師後來組成了公民衰退期。」我們堅定捍衛法治，維護三權分立和司黨，並於2006年邀請郭議員加入成為創法獨立，這是香港普通法制度的核心價改革與新法例黨黨員。值，令我們能夠維持世界頂級司法管轄郭議員現正與律師會合作，推動立即更掌握竅門區的地位。」新和改革區域法院及高等法院訟費評定收費率，該收費率自1997年以來一直沒郭議員指出，學習政治有兩種方式：「有人可能會問：為何要向國際社會發有進行修訂。「你可以加入政黨，或者投身政府。我表立場堅定的聲明？如果我們沒有這樣通過加入公民黨，成為創黨黨員，學習做，白皮書在未來就有機會成為事實。他亦打算推動集體訴訟立法，進一步擴到前線政治。我從一開始就接觸很多白皮書的立場損害我們建立的社會、法大法律援助，及推動上市改革等事宜，黨務，包括選舉和廣泛的政策及政治議律制度和經驗價值。我們若要維護我們以改善香港的金融監管制度。題，學會了如何思考和就不同議題採取立場、如何提出論據，以及如何面對傳媒等。早年我也會去旁聽立法會會議，觀摩議員辯論。」

法律和政治是彼此的延伸，兩者息息相關。他續說：「我覺得法律背景有助我擔任立法會議員。例如，我在法庭上抗辯或進行談判時學到的技巧，也能學以致用。法律執業培養的技巧可以套用於政治工作。」

法律界功能界別郭議員表示，作為法律界代表，他的兩個主要工作包括：一、捍衛法治和憲法，維護一國兩制，推動香港民主進展；二、鞏固香港的法治基礎，確保司法獨立，而司法機構有足夠的資源和人力，發展和推廣香港法律界在本地及海外的發展，跟進法律改革建議，爭取擴大法律援助和其他訴諸司法的問題。與其他議員一樣，他也關心一系列教育、環保、經濟等議題。

18 www.hk-lawyer.org August 2017 • COVER STORY 封面專題

郭議員致力令香港法律跟上社會發展，機制)條例》，在主要金融機構發生崩潰雖然在解決目前在訴諸司法問題上，法及確保律師有可持續的工作機會，尤其的情況下，讓監管機構進行干預。展望律界確實能發揮作用，但最後仍需由政對年青律師來說。他重點關注的領域包未來，上市改革即將展開。他說：「香府建立更有效率、更相宜和更完善的法括加強香港的仲裁法律和服務，以及年港政府和監管機構需要解決這個監管困律制度，供普羅市民訴諸司法。青律師對新競爭制度的理解。局。上市改革對香港成為一流國際金融中心至關重要。」司法改革仲裁郭議員的另一個重要工作方向，是確保「最近涉及十多家上市公司的股災，就為鞏固香港作位仲裁樞紐的地位，郭議香港司法系統有足夠的資源在21世紀的證明了有迫切需要改革，根除一些監管員積極推動立法會通過若干仲裁相關法香港有效運作。「法官的工作繁重。我不力的上市公司。我會繼續與證監會和案，其中兩項已在6月中通過：一項涉及的工作是確保年度預算能提供足夠的資金管局合作，解決這些問題。」第三方資助，另一項涉及允許通過仲裁源，使他們能夠繼續運作高效和現代化解決知識產權糾紛。集體訴訟及其他法律改革的司法系統。」

「我擔任第三方資助條例草案委員會的郭議員亦指出，他曾致力推動政府制定作為立法會司法及法律事務委員會副主主席，法律界和社會均歡迎法例盡快通便利集體訴訟的法例。「我相信大多數席，郭議員與司法機構討論各種政策問過，我以此為優先工作。」人都知道，法律改革委員會已經建議在題，例如招聘更多法官的工作，以及就香港引入集體訴訟。這將讓香港能夠跟「我也推動改善香港仲裁服務的推廣方業條件及薪酬待遇等。高等法院法官的隨其他司法管轄區的發展，令市民更容式。例如，研究在前終審法院大樓設立薪酬最近增加，以吸引更多人才加入司易訴諸司法尋求公義。」郭議員正在研新的仲裁中心，確保我們會繼續擁有一法機構。究的法律改革領域還包括企業拯救和債流的仲裁設施。」郭議員亦在推動提高法官退休年齡。「務重組、僱傭和家庭法改革。郭議員希望，新法例配合先進設施，能有才華、有經驗的法官，無理由必須在使香港保持國際爭議解決中心的優勢。訴諸司法 65歲退休。我們希望將高等法院法官的退休年齡，從65歲提高到70歲，終審法「我認為這能為法律界帶來更多工作機提供法律援助對維護法治至關重要，確院法官的退休年齡，從70提高到75歲。會。」保市民有訴諸司法的途徑。郭議員表司法機構今年將就此提交報告，希望藉示，他一直與法律援助署及政府合作，競爭法此吸引更多業者加入司法機構，延長他擴大法律援助的涵蓋範圍。郭議員指出，最近頒佈的跨行業競爭制們的職業生涯。」「法律援助輔助計劃的範圍已經擴大，度是年青律師可以從事的成熟領域。「「近年，我們看到有人對司法機構和個財務上限在我任內亦已提高，覆蓋更多我一直與競爭事務委員會合作，為年青別法官作出無理攻擊。這些攻擊是完全市民和案件類別。」律師設立工作計劃，去英國和澳洲學習不可接受的，捍衛司法是我的職責之競爭法和其他執業領域。該計劃正在進提供義務法律服務，是解決訴諸司法問一。」行中，供年青律師和大律師參加。為了題的另一個重要方向，也是郭議員渴望展望未來保持競爭力，確保法律服務業可持續發進一步發展的方面。他說：「我一直主展，我們必須繼續開發新的執業領域，張和努力設立更多的義務法律服務診展望未來，郭議員希望所有黨派能夠攜使年青律師有機會投身其中。」所，擴大義務律師計劃。這非常重要，手合作，令香港政治帶回更正面積極的方向。「我們需要解決立法會的一些僵上市改革因為很多人面對法律問題和挑戰，但苦無法律意見。我希望律師會和大律師公局，以制定急需的改革。新政府必須帶郭議員亦密切參與推行多項金融監管改會能夠在這方面多做工作。」頭，不能推行違反我們核心價值觀和基革。「香港作為國際金融中心，一流的本法的政策。未來5至10年對香港十分郭議員舉出法律監管機構可如何協助的監管制度非常重要。無論監管金融服務重要，我們需要尋找方法，推動政改例子。他解釋：「律師參與義務工作還是上市公司、銀行或保險公司，我們等議題，同時維護現行的制度和生活方時是否受彌償保險覆蓋，這個很大的都需要確保所有人能夠在安全而平衡的式。上一代的任務是處理香港從殖民地問號。就此，兩個監管機構可以幫忙釐監管環境中運作，從而加強香港對國際過渡到特別行政區，而我們這一代的任投資者的吸引力。」清。我們應便利義務法律文化，令其能務是保護這個制度，維護憲法和一國兩更蓬勃發展。」去年，立法會通過了《金融機構(處置制。」 n

www.hk-lawyer.org 19 • August 2017

LAW SOCIETY NEWS 律師會新聞

SmartHK As a supporting organisation, the Law Society participated in SmartHK, Fuzhou on 25 May organised by the Hong Kong Trade Development Council. The Law Society and three Hong Kong law firms also separately set up exhibition booths at the event to promote Hong Kong’s legal services and explain to visitors how Hong Kong lawyers can help Mainland enterprises expand their businesses. The organiser has arranged a series of seminars on Hong Kong service industry. On behalf of the Law Society, Ms. Daphne Lo, Member of the Standing Committee on External Affairs, spoke to visitors about legal due diligence and its scope.

創新升級香港論壇香港律師會以支持機構的身分參與香港貿易發展局於5月25日在福州舉辦的「創新升級• 香港論壇」，並偕同三間香港律師行分別在展覽會設置宣傳攤位，向參觀人士介紹香港律師如何幫助內地企業擴展業務，以及推廣香港法律服務。大會亦安排多個有關香港服 Ms. Daphne Lo speaking at SmartHK . 務業的研討會，其中對外事務常務委員會委員盧鳳儀律師代表香港律師會出席研討會，盧鳳儀律師代表香港律師會在「創新升級•香港論壇」演講。向在場人士從法律角度探討「盡職調查」及其所涵蓋的範圍。

Legal Seminar in Celebration of the 20th Anniversary of the Establishment of the HKSAR Invited by the China Law Society, President Thomas So and Mr. James Wong, Vice-Chairman of the Greater China Legal Affairs Committee, attended the Legal Seminar in Celebration of the 20th Anniversary of the Establishment of the HKSAR on 5 June in Zhengzhou, Henan Province. Mr. So delivered a speech on behalf of the Law Society in which he shared the importance of the Rule of Law to Hong Kong’s development, as well as the role of One Country, Two Systems after Hong Kong’s reunification. Mr. Wong spoke on the topic “Hong Kong Basic Law: Looking Back and Ahead: Strengthening Basic Law Theoretical Study and Legal Literacy”.

慶祝香港回歸二十周年法學研討會應中國法學會邀請，蘇紹聰會長和大中華法律事務委員會副主席黃江天律師出席了該會於6月5日在河南鄭州舉行的「慶祝香港回歸二十周年法學研討會」。蘇會長代表香港律師會在活動上致辭，分享法治對香港發展的重要性，以及「一國兩制」在香港回歸後所擔當的角色。黃律師則以「香港基本法實施回顧與展望－加強基本法理論研究及普 President Thomas So and Mr. James Wong attended the Legal Seminar in Celebration of the 20th Anniversary of the Establishment of the HKSAR. 法教育」為題進行演說。蘇紹聰會長和黃江天律師出席「慶祝香港回歸二十周年法學研討會」。

20 www.hk-lawyer.org August 2017 • LAW SOCIETY NEWS 律師會新聞

Legal Seminar on Legal Services and Dispute Resolution Organised by the Hong Kong Chinese Enterprises Association, the Forum on China’s Outbound Investment Trend and the Role of Hong Kong was held on 14 June at the Hong Kong Convention and Exhibition Centre. The Greater China Legal Affairs Committee of the Law Society; the Legal Affairs Steering Committee and the Commercial Mediation Commission of the Hong Kong Chinese Enterprises Association, together with other associations organised a Legal Seminar on “Legal Services and Dispute Resolution: The Role and Strengths of Hong Kong” that afternoon. As one of the speakers, President Thomas So spoke to about 200 attendees on “Risk Prevention of Overseas Merger and Acquisition and the Role of Hong Kong”.

法律服務和爭議解決論壇香港中國企業協會於6月14日假香港會議展覽中心舉辦「中國對外投資趨勢及香港角色」高峰論壇。其中，香港律師會大中華法律事務委員會與香港中國企業協會轄下的法律專業委員會及商事調解委員會，以及其他協會於下午合辦題為「法律服務和爭議解決 — 香港的角色和優勢」的專題論壇，律師會 President Thomas So spoke on the risk prevention of overseas merger and acquisition and the role of Hong Kong in the seminar. 會長蘇紹聰律師擔任其中一位主講者，就「海外併購的風險防範與香港的角蘇紹聰會長於論壇上分享海外併購的風險防範與香港的角色。色」向約200位來賓發表演說。

Visit to Chongqing and Chengdu 訪問重慶及成都 Led by President Thomas So, a six-member delegation of the Law Society 蘇紹聰會長帶領香港律師會一行6人的代表團於6 visited Chongqing and Chengdu from 21 to 24 June. The delegation met with 月21日至24日訪問重慶及成都，拜訪重慶市律師 the Chongqing Lawyers’ Association and the Chengdu Lawyers’ Association 協會及成都市律師協會，並為兩地律師舉辦了兩 and arranged two legal seminars for lawyers in the two cities. The seminars covered topics such as the negotiation process and procedure of overseas 場法律研討會。研討會的題目涵蓋海外併購的談 mergers and acquisitions, due diligence and managing risks associated with 判過程及流程、知識產權的盡職調查和交易風險 intellectual property transactions, as well as legal risk prevention and control 管理，以及赴港上市的法律風險防控等。活動反 of listing in Hong Kong. The seminars were well received by more than 130 應良好，共吸引超過130名律師參與。兩個律師協 attendees. Both lawyers’ associations have indicated their desire to provide more 會均表示計劃為當地律師提供更多相關中國對外 relevant training courses for local lawyers to enhance their knowledge and skills on Chinese outbound investments. 投資的培訓課程，以提升當地律師的執業水平。

The Law Society arranged two seminars for lawyers in Chongqing and Chengdu. 律師會為重慶及成都律師舉辦了兩場法律研討會。

www.hk-lawyer.org 21 • August 2017

Belt and Road: Practice of the Rule of Law and Innovation of Legal Services Seminar Ms. Melissa Pang, Vice President of the Law Society and Chairperson of the Greater China Legal Affairs Committee, was invited to attend the Belt and Road: Practice of the Rule of Law and Innovation of Legal Services Seminar on 25 June. Ms. Pang shared her views on the topic “Establishment of a Corporate Compliance System for the Chinese Enterprises Going Global”, which was well-received by attendees. The seminar, held in Shenzhen, was jointly organised by China Legal Services (Hong Kong) Limited, China Legal Services (Macau) Limited and Shenzhen Lawyers Association. More than 300 local lawyers and representatives of Chinese enterprises attended the seminar.

一帶一路法治實踐與服務創新論壇 6月25日，香港律師會副會長暨大中華法律事務委員會主席彭韻僖律師獲邀出席「一帶一路法治實踐與服務創新論壇」，並於活動上就「中國企業走出去 Vice President Melissa Pang shared her views on overseas mergers and acquisitions by Chinese enterprises and relevant risk management 的合規制度構建」為題與出席人士交流。該論壇由中國法律服務(香港)有限公 and prevention. 彭韻僖副會長與參會人士介紹中國企業於海外併購的情況及相關風險管司、中國法律服務(澳門)有限公司、深圳市律師協會等機構合辦，並於深圳舉理與防範。行，吸引包括當地律師以及中國企業代表等約300人出席。

Mainland Visitors visit the Law Society 內地訪問團 The Law Society received two groups of visitors from the Mainland in June, 香港律師會於6月接待了兩個來自內地的訪問團，包 namely Mainland officials receiving common law training in Hong Kong 括在香港參加普通法培訓計劃的內地部門工作人員， and a delegation from Shenzhen Intermediate People’s Court. On 13 June, 及深圳市中級人民法院代表團。6月13日，14位在香 14 Mainland officials receiving common law training in Hong Kong visited the Law Society so as to better understand the role of the Law Society and 港參加普通法培訓計劃的內地部門工作人員訪問律師 the development of the legal system and legal profession in Hong Kong. 會，旨在了解香港律師會的角色以及香港法律制度和 Mr. William Lam and Ms. Catherine Mun, Members of the Greater China 法律業界的發展概況，並與大中華法律事務委員會委 Legal Affairs Committee, received the visitors led by its Vice President Mr. Hu 員林靖寰律師和文理明律師交流；另外，深圳市中級 Zhiguang. On 26 June, a delegation from Shenzhen Intermediate People’s Court, visited the Law Society to get a better understanding of Hong Kong’s 人民法院代表團於6月26日在胡志光副院長帶領下到 mediation system and the profession. The delegation was received by 訪香港律師會，了解香港的調解制度和行業概況。調 Mrs. Cecilia Wong, Chairperson of the Mediation Committee; Ms. T.Y. Lam and 解委員會主席黃吳潔華理事、委員林子絪律師、楊洪 Mr. Norris Yang, Members of the Mediation Committee; Mr. Ronald Kan and 鈞律師，以及大中華法律事務委員會委員簡汝謙律師 Mr. Gary Yin, Members of the Greater China Legal Affairs Committee. 及饒詩傑律師與代表團會晤。

Representatives of the Law Society with the delegation from Shenzhen Intermediate People’s Court. 香港律師會代表與深圳市中級人民法院代表團合照留念。

22 www.hk-lawyer.org August 2017 • LAW SOCIETY NEWS 律師會新聞

Seminar on Legal Aspects of Fund Raising for 「社會企業進行集資籌款的相關法律」專 Social Enterprises 題研討會 On 29 June, the Working Group on Seminars for Social Enterprises of the 律師會公益服務委員會轄下的社企研討會工作小組及香港 Law Society’s Pro Bono Committee and the Hong Kong Council of Social 社會服務聯會於6月29日合辦了「社會企業進行集資籌款 Services (“HKCSS”) jointly organised a seminar on Legal Aspects of Fund 的相關法律」專題研討會，吸引了來自不同社會企業的 Raising for Social Enterprises. Over 70 representatives from various social enterprises attended. 70多位參加者出席是次研討會。 Dr. Teresa Chu, member of the Working Group, introduced to the 工作小組成員朱靜華博士向參加者講解常見的集資籌款模 audience common types of fundraising exercises, funding schemes and 式、資助計劃和眾籌。她亦於研討會上分享有關集資籌款 crowdfunding. She also gave some important pointers on fundraising 及擴大公司規模的一些須要注意的事項。 and scaling up a company.

Mr. John Davison, Chairman of the Working Group, received a souvenir from the representative of the HKCSS. 工作小組主席戴永新律師獲香港社會服務聯會的代表頒贈紀念品。

Clubhouse Farewell Party On 9 June, the Clubhouse Committee organised a farewell party to bid farewell to the Clubhouse after its 20 years of service. Over 40 members including Past Presidents, former and current Council members and members of the Standing Committee on Member Services attended the party. The participants were glad to catch up with old friends including Council members of 1997 when the Clubhouse was founded. After Past President Anthony Chow gave a brief history of the Clubhouse, our guests were presented with a pleasant surprise – a pre-arranged personalised caricature portrait with Law Society Clubhouse as setting! A party cannot succeed without great music. The audience sang and danced along with the singing performance of Past President Anthony Chow and the Law Society band “TLF”. The party reached Vice President Melissa Pang, Secretary General Heidi Chu and Clubhouse its climax when some ‘new’ faces volunteered to showcase their Committee Chairman TC Chan presenting a personalised caricature portrait to Clubhouse Manager Herwin Lee. hidden musical talent. The party marked the end of service of our 副會長彭韻僖律師、秘書長朱潔冰律師及會所委員會主席陳子遷律師向會所經理李文 Clubhouse with good memories in all those who attended. 煥先生送贈個人似顏繪一幅。

www.hk-lawyer.org 23 • August 2017

告別會所派對會所委員會於6月9日舉辦了一個告別派對，以告別服務了20年的律師會會所。40多名會員，包括前任會長、前任及現任理事會成員及會員服務常務委員會成員均出席了告別派對。

來賓與老朋友歡樂相聚，多位1997年(會所於該年成立)的理事會成員亦應邀出席。前任會長周永健律師簡述會所的歷史後，來賓們都收到一個驚喜— 每位嘉賓獲贈一幅以律師會會所為背景的個人似顏繪！

派對怎能沒有美妙的音樂？前任會長周永健律師與律師會樂隊TLF即場獻唱，而其他來賓則聞歌起舞。一些「新」面孔踴躍展示音樂才藝，將派對推至高峰。會所多年來的服務隨著派對終結，為來賓留下美好回憶。

Members enjoying the singing performance and dancing to the groove. 會員載歌載舞。

Group photo of all participants at the party. 參加派對的所有來賓大合照。

24 www.hk-lawyer.org

• August 2017

Recreation and Sports Committee Feature 康樂及體育委員會特寫

Trump or No-trump, the complexity of skills which are required It’s Your Call of bridge players, both at the bidding stage and the playing stage. If you wish In bridge, you either play a “trump” to experience this exciting card game, join contract or a “no-trump” contract for the Law Society Bridge Team today! each hand, and it’s up to the four players at the bridge table to make the choice. The Law Society Bridge Team was To start a bridge game, all you need is a formed in March 2014, after an ad hoc deck of standard playing cards and two team of four competed in the first Bridge These are what you need for a bridge game – a deck of standard Tournament organised by the Recreation playing cards, some papers for recording and a table that can pairs of players. There are two distinct fit four persons. stages for each hand, the bidding stage and Sports Club for Hong Kong 玩橋牌需要一套標準撲克牌、記錄紙和一張可容納四人的桌子。 and the playing stage. During the bidding Professional Bodies (“RSCP”) in 2013. stage, each player takes turns to make Since then, the Team has attracted players their bids until three consecutive players of different playing levels, from beginners pass their bids, in which case the last bid to more seasoned bridge players, to take before the passes becomes the contract. part in our regular weekly practices and During the playing stage, the pair of external bridge tournaments. The Team’s players who lost the bidding would play highlight came in 2015 when, just two as “defenders”, and the players in the years into its formation, the Team clinched winning pair would play the role of either the championship in the RSCP Bridge “declarer” or “dummy”, depending upon Tournament. What the Team treasures the bidding sequence. The dummy, as the more, however, is the friendship which has name suggests, has no further role in the been developed over the bridge table in Regular practice session. 一般練習回合。 hand other than laying down his/her hand the past few years. It is our wish that more which is to be played by the declarer. The and more members could join the Team planning to run a beginners’ course defenders and the declarer then take turns and enjoy the fun of playing bridge at their later this year. Please keep an eye on to play their cards one by one with the leisure. the circulars on the arrangements. If objective of maximising their respective The Team used to host weekly Monday you have any good suggestions on the winning tricks. In most cases, a bridge practices in the Law Society Library practice venue or you wish to learn more hand will take no more than 10 minutes but due to upcoming renovation, the about bridge, please do not hesitate to to finish. The above overly simplistic Team is currently exploring options on contact Mr. WK Ng, Bridge Convenor, on introduction of the game, however, belies other practice venues. The Team is also [email protected]. We look forward to seeing you at the bridge table soon! Professional Pairs Bridge Tournament 2015 專業團體橋牌雙人論對賽 2015

The Law Society’s championship pair. The Bridge team was led by Convenor Mr. WK Ng (sixth from left). 律師會的勝出隊伍。律師會橋牌隊由召集人伍偉傑律師(左六)領軍。

26 www.hk-lawyer.org August 2017 • RECREATION AND SPORTS COMMITTEE FEATURE 康樂及體育委員會特寫

王牌與否由你決定 Hong Kong Inter-City Bridge Championships 2014 2014 年香港城市橋牌錦標賽每局橋牌，一是打王牌(trump)合約，一是打無王 (no-trump)合約，而這全由橋桌上的四位橋手決定。要開始一局橋牌，所需的只是一套標準撲克牌及兩對橋手。每局橋牌均分成兩個不同階段：叫牌(bidding)和打牌(playing)。在叫牌階段，每位橋手輪流叫牌，直至連續三位橋手叫出「不叫」叫品 (pass)，則在該等「不叫」叫品前的最後叫品便會成為合約。在打牌階段，輸掉叫牌的一對橋手成為防家(defenders)，而贏出叫牌的一對橋手則視乎叫牌過程分別成為莊家(declarer)或夢家(dummy)。人如其名，夢家的作用只是攤牌，莊家將全權決定夢家出哪一張牌。防家和莊家於打牌過程中輪流逐張 RSCP Bridge Tournaments 2015 香港專業團體康體會橋牌錦標賽 2015 出牌，以贏出最多磴數(trick)為目標。在大部份情況下，一局橋牌不會超過10分鐘。以上為超簡化的橋牌玩法介紹，但橋牌所講求的技巧遠遠更為複雜，不論叫牌或打牌階段亦然。想體驗這個刺激的紙牌遊戲，歡迎你今天就加入律師會橋牌隊！

由四人臨時組成的橋牌隊於2013年參加了香港專業團體康體會舉行的第一屆橋牌錦標賽後，律師會橋牌隊於2014年3月正式成立。自此，橋牌隊吸引了由初學者以至橋牌好手加入，參加每週練習和橋牌比賽。2015年，成立了僅兩年的橋牌隊勇奪香港專業團體康體會橋牌錦標賽冠軍。比起勝利，隊員更 The team was crowned Champion in the Tournament. 律師會團隊榮獲錦標賽冠軍。著重過去幾年建立的友誼，橋牌隊期望更多會員加入，一起享受橋牌的樂趣。 Friendly Match with Taipei lawyers in 2015 2015 年與台北律師進行友誼賽橋牌隊以往每逢星期一在律師會圖書館進行練習。由於圖書館將進行翻新工程，橋牌隊正尋找其他練習場地，亦計劃於今年稍後時間開辦初學班，請留意會員通告，緊貼最新消息。如對練習場地有好提議或想了解更多關於橋牌的知識，歡迎隨時聯絡橋牌隊召集人伍偉傑律師(電郵：[email protected])。我們期待在橋牌桌上跟你砌磋！

The Tournament gathered over 50 participants from various professional bodies. 論對賽吸引了超過50位來自多個專業團體的橋手。

www.hk-lawyer.org 27 • August 2017

The Egg Drop Container: Hong Kong’s Financial Institutions (Resolution) Ordinance

By Antonio M. Da Roza Liberty Chambers

28 www.hk-lawyer.org August 2017 • REGULATORY 監管

The Egg Drop Experiment stability of the global financial system Review Report (April 2013) as to regulator powers of resolution in Hong Kong. Remember that experiment where underlined how unsuitable insolvency The Financial Institutions (Resolution) students would build a container for proceedings are for resolving SIFIs Ordinance (“FI(R)O”) was thus conceived eggs, then drop the container from a whilst maintaining their provision of to implement the Key Attributes locally. height, to see if it would protect the eggs critical financial services, and the lack of from breaking? regulatory power over SIFI failure. Nine years after the Financial Crisis, the question is whether the FI(R)O, which September 2008 – mortgage giants In September 2009, the G20 Leaders came into force on 7 July 2017, is just Fannie Mae and Freddie Mac were taken engaged the Financial Stability Board another layer of regulation wrapped over over by the US government. Bank of (“FSB”) to devise more effective existing layers or will prove an effective America purchased Merrill Lynch for arrangements for resolving SIFIs – egg-drop container. US$50 billion. Lehman Brothers filed “Design a container for eggs to protect for bankruptcy. AIG, the world’s largest them when dropped, or to minimise the One Size Fits All mess if broken.” insurer, accepted a US$85 billion federal At first glance, the FI(R)O appears to be bailout. Regulators closed Washington In October 2011, the FSB adopted the Key another layer of regulation – a cross- Mutual Bank. And on and on the global Attributes of Effective Resolution Regimes sectoral statute providing new regulatory financial crisis went. Splat, splat, splat – for Financial Institutions (“Key Attributes”), powers for the Hong Kong Monetary eggs break when dropped. a framework for effective resolution Authority (“HKMA”), the (new) Insurance But catching them as they fall is difficult. regimes. The Key Attributes were Authority, and the Security and Futures Banks that had invested in the rapidly endorsed by the G20 in November 2011 Commission (“SFC”) as “resolution authorities” for banking, insurance and devaluing mortgage-backed financial as the “new international standards for securities and futures sector entities, instruments experienced liquidity crises, resolution regimes”, which would require respectively. The FI(R)O applies to all bringing the global financial system to legislative reforms in most jurisdictions to banks, global systemically important the brink of collapse. Lehman Brothers implement. insurers and licensed corporations, and would be the last systemically important Some jurisdictions had already financial market infrastructure entities financial institution (“SIFI”) allowed to implemented reforms – the Dodd-Frank (referred to as “within scope financial fail – other SIFIs would receive support by Act in the US (July 2010) or the Bank institutions”). The jurisdiction of the way of capital injections, asset or liability Recovery and Resolution Directive in the FI(R)O may be extended to holding guarantees, and further forms of public EU (May 2014). However, significant gaps companies and affiliated operational funding. were identified by the FSB’s Thematic entities of financial institutions within the The enormous public cost and threat to Review on Resolution Regimes: Peer FI(R)O’s scope.

FI(R)O Terms Banking Sector Entity Insurance Sector Entity Securities and Futures Sector Entity Resolution Authority HKMA Insurance Authority SFC - Authorized institutions incorporated in - Global systemically - Non-bank non-insurer global Hong Kong important insurers systemically important financial - Authorized institutions incorporated - Financial institutions institutions outside Hong Kong Insurance Authority is - Branches, subsidiaries, subsidiaries of - Settlement institutions of designated designated resolution holding companies of global systemically clearing and settlement systems, not authority of (s. 6) important banks or insurers that are Within authorized institutions, not wholly - Holding companies (s. 28) licensed corporations Scope owned or operated by Government - Recognized clearing houses Financial - Affiliated operational Institution - System operators of designated clearing entities (s. 29) - Recognized exchange companies and settlement systems not authorized designated within scope institutions, not wholly owned or - Financial institutions SFC is designated operated by Government resolution authority of (s. 6) - Financial institutions HKMA is - Holding companies (s. 28) designated resolution authority of (s. 6) - Affiliated operational entities (s. 29) - Holding companies (s. 28) - Affiliated operational entities (s. 29)

Who regulates and is regulated by the FI(R)O – the definitions of “within scope financial institution” and “resolution authority”

www.hk-lawyer.org 29 • August 2017

The application of the FI(R)O to Resolution Planning Core Information the Financial Institutions (Resolution) corporations licensed under the Requirements (May 2017). Powers Bill (2015) referred to the FSB’s Principles Securities and Futures Ordinance of assessment and planning are on Loss-absorbing and Recapitalisation (“SFO”) is unascertained, as the FSB’s supplemented by powers of information Capacity of G-SIBs in Resolution as one assessment methodology for non- gathering (s. 158) and entry and example. bank non-insurer global systemically inspection (s. 160). Resolution authorities may also make important financial institutions has yet to During assessment, the structure, rules to require provisions in contracts be finalised. operation, or business practices of that create liabilities for within scope The rationale behind creating a single, a within scope financial institution financial institutions to acknowledge cross-sectoral regime was to better may be considered “impediments” to they may be subject to bail-in under support the orderly resolution of financial the planned resolution. Resolution stabilisation. A further rule-making institutions in a wider financial services authorities may direct removal or power provides for acknowledgement group operating across multiple sectors. mitigation of such impediments – of eligibility of termination rights in In resolving such a group, the FI(R)O though there is currently no guidance as contracts with qualifying entities to be empowers the Financial Secretary to to what an “impediment” is. suspended in resolution. designate a lead resolution authority. The Further to capital requirements under To protect the resolution process, lead resolution authority may exercise the Banking Ordinance (“BO”), Insurance petitions for winding up by the Courts powers in respect of financial institutions Companies Ordinance (“ICO”), or may not be presented in respect of as though it were the resolution authority SFO, the FI(R)O empowers resolution within scope financial institutions unless of the sector that financial institution authorities to make rules for loss- notice is given to the relevant resolution belongs to. In practice, it seems more absorbing capacity of within scope authority (s. 192). This section will not likely that the lead resolution authority financial institutions. Reference is made come into force until rules have been will give written directions to the other in s. 19 to international standard-setting made as to court practice and procedure. regulators, who must comply with such bodies – the Legislative Council brief for directions. Whilst certain features of the Pre-Resolution Requirements FI(R)O – including compensation in  Resolvability assessment (s. 12): ascertain if there are impediments Part 6 and the review tribunals under to the orderly resolution of financial institutions (eg, its structure, Part 7 – are common to all three sectors, operations or business practices that affect the efficacy of resolving it remains to be seen how the divers the institution). needs of different types of within scope financial institution will be addressed  Resolution planning (s. 13): plan for the resolution of financial in resolution. Some provisions, such institutions. Resolution authorities may direct removal/mitigation of as the power of the HKMA to make impediments (s. 14). capital reduction instruments under  Loss absorption (s. 19): resolution authorities may make rules on the s. 31, or sub-s. 90(5) on suspension loss-absorbing capacity of financial institutions. of termination rights in contracts of  insurance, are sector-specific. Others, Contractual provision requirements (s. 60 and s. 92): due to the such as stabilisation options, may not be potential effect of exercising resolution powers (eg, in respect of equally applicable. conversion of capital instruments), resolution authorities may require the inclusion of provisions in such contracts to acknowledge that Pre-Resolution Compliance potential effect. All three sectors are subject to preparation for resolution. However, compliance with these provisions is likely to differ in practice from sector to sector. To ensure the efficacy of resolution, resolution authorities may carry out resolvability assessments of within scope financial institutions and carry out planning for their resolution. For these purposes, the HKMA has already published a Code of Practice on

30 www.hk-lawyer.org August 2017 • REGULATORY 監管

Ceasing to be Viable and scope financial institutions in more than company; or Initiating Resolution one sector. • to bail-in the financial institution. Key to the FI(R)O is the concept of Resolution and Stabilisation Under s. 34, the resolution authority “resolution”, which differs from winding may apply one or a combination of the Once s. 25 conditions have been fulfilled, up. Where insolvency proceedings options, together or sequentially, or a resolution authority must consult maximise and distribute remaining apply stabilisation to certain parts of the with the Financial Secretary before assets to creditors, resolution should financial institution only. The resolution initiating resolution (s. 27). Resolution is be a rapid response for protecting authority may also choose not to apply initiated by issuing a letter under s. 30 critical functions (such as deposit stabilisation – the general powers indicating the resolution authority’s taking, provision of loans, managing under s. 93 may apply, or the financial mindedness to resolve the financial payment systems, etc) of failing financial institution may be allowed to fail in the institution. The financial institution may institutions. normal way, presumably by exercise make representations in respect of the of the resolution authority’s regulatory Section 5 provides that a financial potential resolution. institution is considered non-viable if it powers to wind up financial institutions, FI(R)O Part 5 sets out powers of has failed to meet conditions required or by way of insolvency proceedings. resolution authorities in resolution. to maintain its authorisation to carry on Resolution authorities may manage An Effective Egg Drop business (such as licensing, approval, or exercise the powers of a financial Container? recognition or designation under the BO, institution in respect of its affairs, ICO or SFO), and that authorisation may Due to the size and scope of the business or property, as well as powers be removed, or it is unable to discharge FI(R)O, matters such as: removal of to transfer or issue securities to the its obligations for carrying on business. officers; clawback of their remuneration; resolution authority (s. 93). This may in “Unable to discharge obligations” under offences; compensation; and non-Hong some ways be compared to the powers this section may be confusingly similar Kong resolution actions have not been of a liquidator, though the purpose and to the inability to pay debts for the discussed. outcome of resolution is much different purposes of winding up. Key Attribute 3.1 than distributing assets in liquidation. It remains difficult to assess the states “[t]he resolution regime should effectiveness of the FI(R)O. The cross- provide for timely and early entry into Resolution authorities may suspend sectoral approach leaves much open, resolution before a firm is balance-sheet contractual obligations of a financial presumably for flexibility. Further insolvent and before all equity has been institution in resolution (s. 83), though regulatory guidance needs to be fully wiped out” (emphasis added), certain types of obligation are excluded developed under the rule-making illustrating the pre-emptive nature of from suspension (s. 84). Similarly, powers – as illustrated by the exclusion resolution. the resolution authority may suspend from commencement of Part 8 and termination rights of counterparties Section 25 sets out conditions for s. 192 of the rules for the court procedure otherwise exercisable under contract initiating resolution – (1) that the of clawback of remuneration and on how with the financial institution in resolution financial institution has ceased to notice of winding up petitions can be (s. 90). Measures taken for the purposes be viable; (2) there is no reasonable made. of resolution are to be disregarded and prospect the financial institution could shall not trigger contracts containing Guidance as to when an institution is become viable again through private default provisions (s. 89). considered “non-viable”, and how more sector action; and (3) the non-viability of draconian powers such as removal of the financial institution poses risks to the To stabilise the parts of financial “impediments” are to be exercised, stability of the financial system. institutions that perform critical will be critical for compliance of within functions, a resolution authority may These conditions are also relevant as scope financial institutions. The issue of apply statutory stabilisation options to a prerequisites to exercise certain powers, consistency between the three sectors financial institution in resolution. Under such as the resolution authority’s where groups include within scope s. 33, the five options are: power to give directions (s. 22), remove financial institutions in more than one directors (s. 24), or make capital • to transfer the securities, assets, rights sector also remains. reduction instruments (s. 31). or liabilities of the financial institution What is clear, however, is the to a privately owned purchaser; Fulfilling the three conditions is likely to ambitiousness of what the FI(R)O tries to differ from sector to sector, raising the • a bridge institution; accomplish, and the potential complexity issue of how resolution powers will be • an asset management vehicle; in exercising resolution powers in Hong Kong. exercised where a group includes within • a temporary public ownership n

www.hk-lawyer.org 31 • August 2017

防護雞蛋墜地的裝置：香港的《金融機構(處置機制)條例》

作者羅敬韜大律師 Liberty Chambers

家還記這樣的一個學校實驗嗎？邊緣。可以說，雷曼兄弟會是最後一家 2011年10月，「金融穩定理事會」接大同學們被要求設計一個雞蛋容獲准倒閉的「具系統重要性金融機構」納了《金融機構有效處置機制的主要元器，然後將雞蛋放進這容器中，再從高，而其他的「系統重要性金融機構」，素》(下稱「主要元素」)，那是一個為處將這容器掉到地上，看看裡面的雞蛋它們會獲得透過注入資金、資產或負債處置機制的有效運作而提供的框架。20 會否碎裂。擔保、公開籌募資金等方法來得到支國集團在2011年11月認可了「主要元持。素」為「新的處置機制國際標準」，而 2008年9月，美國政府接管了按揭貸款此舉促使大多數的司法管轄區需要進行巨人房利美和房地美；美國銀行以500億破產法律程序所涉及的巨大公共成本，立法改革以落實推行這一機制。美元代價收購美林；雷曼兄弟提出破產以及其對環球金融體系的穩定性所形成呈請；全球最大保險公司AIG接受850億的威脅，顯示了它被運用來處置「系統若干司法管轄區已明確進行了相關的美元的聯邦緊急救援；監管機構關閉了重要性金融機構」並不合適，尤其是在改革，例如：美國的《多德-弗蘭克法華盛頓互惠銀行。事件一波接一波地發需要維持對主要金融服務的提供，以及案》(2010年7月)；或歐盟的《銀行復生，最後導致環球金融危機爆發。雞蛋對「具系統重要性金融機構」的倒閉缺原及處理指令》(2014年5月)。然而，接連墜地，傳來一聲又一聲的「啪啦」乏監管權力的情況下。在「金融穩定理事會」所發表的《處置聲響。機制專題檢討：同業評審報告》(2013 2009年9月，20國集團的領導人委託年4月)中，揭示了香港的處置機制在監然而，如果我們要在雞蛋墜地之前把它「金融穩定理事會」作出處置「具系管權力方面呈現著重大的缺口，這促使接住，這是談何容易。銀行若曾投資於統重要性金融機構」的更有效安排，香港需要制定《金融機構(處置機制)條以按揭貸款作為支持，而其價值正在急亦即是：「設計一個防護雞蛋墜地的例》，從而讓「主要元素」得以在本地降的金融工具，便必然會面對流動性危裝置，或盡量避免雞蛋破裂時出現混落實施行。機，以致環球金融體系達至近乎崩潰的亂情況。」

32 www.hk-lawyer.org August 2017 • REGULATORY 監管

在這「金融危機」過後的第九個年頭，一體適用機制當局」)。《金融機構(處置機制) 條香港目前需要考慮的問題是：該項在驟眼看來，《金融機構(處置機制) 條例》例》適用於所有銀行、具全球系統重要 2017年7月7日實施的《金融機構(處置機似乎只是另一條跨界別成文法規，目的性的保險人和持牌機構，以及金融市場制) 條例》，將會是在現行法規之上再覆是將新的監管權力，賦予香港金融管理基建實體(以下統稱「受涵蓋金融機構」) 蓋的另一項新法規，還是它將會讓大家局，新成立的保險業監管局，以及證券。《金融機構(處置機制)條例》的管轄權看到：它是一個能有效防止雞蛋墜地和及期貨事務監察委員會(它們乃分別作為可以延伸至在該條例範圍內的控權公司碎裂的裝置。銀行、保險、證券及期貨界別的「處置和相關營運實體。

《金融機構(處置證券及期貨界別實體銀行界別實體保險界別實體機制)條例》條款處置機制當局金管局保險業監管局證監會

- 在香港成立的獲授權機構 - 具全球系統重要性保險 - 銀行及保險人以外的具全球系統重要 - 在香港以外成立的獲授權機構人性金融機構 - 指定結算及交收系統的交收機構，但 - 保險業監管局被指定作 - 具全球系統重要性銀行或保險人的分並非認可機構，亦並非由政府全資擁為其處置機制當局的金行、附屬公司、或控權公司的附屬公有和全權營運融機構(第6條) 司，且為持牌法團 - 指定結算及交收系統的系統營運者， - 控權公司(第28條) - 認可結算所受涵蓋金融機構但並非認可機構，亦並非由政府全資 - 相關營運實體 (第29條) - 被指定為受涵蓋金融機構的認可交易擁有和全權營運所 - 金管局被指定作為其處置機制當局的 - 證監會被指定作為其處置機制當局的金融機構(第6條) 金融機構(第6條) - 控權公司 (第28條) - 控權公司(第28條) - 相關營運實體 (第29條) - 相關營運實體 (第29條)

由誰負責監管以及誰受《金融機構(處置機制)條例》的監管—「受涵蓋金融機構」和「處置機制當局」的相關定義

由於「金融穩定理事會」對銀行和保險指示，而這些監管機構必須依從該局的為了確保處置機制能有效運作，「處置人以外的具全球系統重要性金融機構的相關指示。機制當局」可對受涵蓋金融機構進行評估方法仍未定案，因此根據《證券及「處置可行性評估」，以及為其處置進《金融機構(處置機制)條例》中的某些規期貨條例》獲發執照的機構如何適用行規劃。為達成上述目的，金管局乃刊定(包括第6部的補償及第7部的覆檢審裁《金融機構(處置機制)條例》，目前尚未發了《適用於認可機構的處置規劃核心處)雖然適用於所有該三個界別，但在處明確。資料規定》(2017年5月)。除了進行評置過程中，它們如何針對不同類別的受估、規劃的權力外，金管局還可以行使設立一個單一和跨界別機制的背後理涵蓋金融機構的不同需要，這仍然有待搜集資料(第158條)、進入和查閱(第160 據，是為了對該等在經營範圍廣泛，業我們的進一步觀察。某些條文(例如，第條)等其他方面的權力。務涉及多個界別的金融服務集團中的金 31條關於金融管理局訂立縮減資本文書融機構所進行的有秩序處置，提供更有的權力，又或是第90(5)條關於保險合約在進行評估時，受涵蓋金融機構的架效的支持。就屬於該等性質的集團來的暫停終止權)只適用於特定的界別，而構、運作或業務操作，均可視為對所規說，在《金融機構(處置機制)條例》下，其他條文(例如，有關穩定措施的條文)則劃的處置的「障礙」，而「處置機制當財政司司長有權指定一個「主導處置機可能並非均等適用。局」可作出排除有關障礙或減低其影響制當局」，而該局有權對金融機構行的指示(儘管在現階段仍然未就「障礙」使權力，猶如其為該金融機構所屬界別處置前的遵從的含義提供任何指引)。的「處置機制當局」一般。在實際運作所有該三個界別皆需要為有關處置作準除了在《銀行業條例》、《保險公司條上，較為可能的做法是，該「主導處置備，但如何遵從此等條文的規定，這在實例》、或《證券及期貨條例》下的資本機制當局」會向其他監管機構作出書面際運作上，可能須視各個不同界別而定。要求外，「處置機制當局」獲《金融機

www.hk-lawyer.org 33 • August 2017

構(處置機制) 條例》賦予權力，可就構產生負債的條文，確認其在穩定措施不再可持續經營及啟動處置受涵蓋金融機構的吸收虧損能力(loss- 下，可能需要作為內部財務重整的對《金融機構(處置機制)條例》的關鍵之 absorbing capacity) 訂立相關規則。第19 象；此外，該局的另一項制訂規則權力處，是「處置」這一概念，而它與清盤條提述了「國際標準訂立團體」，而其亦訂明，合資格實體所訂立的合約的終的含義亦有所不同。可以說，破產法律中一個例子，是立法會關於《2015年金止權，可在處置過程中予以暫停。程序是最大限度地，將所剩餘的資產分融機構(處置機制)條例草案》的參考資料為了保障有關的處置程序，除非「處置配給相關債權人；而處置的含義，則是摘要，當中提述了「金融穩定理事會」機制當局」已獲給予相關通知，否則任對瀕臨倒閉的金融機構作出快速反應，所制訂的《處理過程中應有的吸收虧損何人不得向法庭提出呈請，要求法庭對以保護其關鍵職能(例如：存款、貸款、和資本重整工具原則》。受涵蓋金融機構作出清盤(第192條)。該管理支付系統等等)。此外，「處置機制當局」可以訂立規項條文目前仍有待與法庭的實務和程序第5條訂明，倘若某一受涵蓋金融機構則，規定合約中須載有為受涵蓋金融機相關的規則確立後，才會付諸實施。未能符合所規定的條件，以維持其在經營相關業務(例如根據《銀行業條例》、處置前的規定《保險公司條例》或《證券及期貨條例》的規定，進行給予許可、批准、確認或指  處置可行性評估(第12條)：須確定若要對金融機構作出有秩序處置，明等方面的業務)上所獲的授權，該授權是否將會面對障礙(例如，將會對處置該機構的效能產生影響的結構、將可能會被撤銷；又或是，該機構在經營運作或業務操作)。業務方面未能履行其義務。在這情況下，  處置規劃(第13條)：處置金融機構方面的規劃。「處置機制當局」有有關機構將被視作不再可持續經營。在該權就排除/減低障礙作出指示(第14條)。條規定下的「不能履行義務」，與清盤方面的無能力清償債務情況十分類似，容易  吸收虧損(第19條)：「處置機制當局」可就吸收虧損能力作出相關規產生混淆。《主要元素》第3.1段指出：定。「處置機制應訂明要及時提早進入處置程  合約條文規定(第60及92條)：基於在行使處置權力時所產生的潛在影序，避免待至某公司在資產負債表上出現響(例如：轉換資本票據)，「處置機制當局」可要求在該等合約中附資不抵債的問題及所有股本被徹底註銷的地步」(斜體字以示強調)，這顯示了處置加條文以確認此等潛在影響。所具的優先性質。

REUTERS/Will Burgess

34 www.hk-lawyer.org August 2017 • REGULATORY 監管

第25條列明各項啟動處置的條件：(1) 有產分配存在很大分別。監管權力，又或是藉著破產法律程序)。關金融機構已不再可持續經營；(2)有關「處置機制當局」可以暫停某一被處置金融機構已無合理機會透過私營範疇的一個有效的防護雞蛋墜地裝置？金融機構的合約義務(第83條)，但當中並任何行動而恢復可持續經營；及(3)有關基於所涉及的規模和範圍，《金融機構不包括某些義務類別(第84條)。同樣地，金融機構不可持續經營，對香港金融體 (處置機制) 條例》並沒有就以下事宜作出「處置機制當局」可暫停合約對手方根系的穩定構成了風險。討論：高級人員的免任；報酬的退扣；據其與被處置金融機構所訂立的合約而相關罪行；補償；及非香港的處置行動。在行使某些權力上(例如：「處置機制當有權行使的終止權(第90條)。此外，為處局」在作出指示(第22條)、罷免董事(第置目的而採取的措施須不予理會，並且要評估《金融機構(處置機制) 條例》將 24條)、或訂立資本縮減文書(第31條)等不得促使載有違責條文的合約發生效力( 可發揮甚麼效能，目前依然為時尚早。方面的權力)，該等條件也屬於先決性的第89條)。如果採取跨界別途徑，許多事情將變得條件。難以明確(也許是基於靈活性的需要)。當為了使金融機構能夠在關鍵功能的執行局需要根據其訂立規則的權力，制訂進然而，如何能符合上述三項條件，這可上維持穩定，「處置機制當局」可對被一步的監管指引(正如第8部及第192條所能須視不同的界別而定。一個集團之處置金融機構實施法定的穩定措施。根表明的)，從而訂立與退扣報酬的法庭程內，倘若包含超過一個界別的受涵蓋金據第33條的規定，該5項措施為：序，以及與清盤呈請通知等有關的規則。融機構，這將會產生如何行使處置權力 • 將相關金融機構的證券、資產、權利的問題。或負債轉讓予由私人擁有的買家；要讓受涵蓋金融機構充分遵守相關規定，便必須讓它們更為了解，一個機構 • 轉讓予過渡機構；處置與穩定在甚麼時候會被視作「不再可持續經當第25條所述的該三項條件一一實現 • 轉讓予資產管理工具；營」，以及還需要行使多少，例如，移後，「處置機制當局」在啟動有關處置 • 轉讓予暫時公有公司；或除「障礙」的權力。此外，集團內的受前，須先行諮詢財政司司長的意見(第27 • 該金融機構進行內部財務重整。涵蓋金融機構倘若涉及多於一個界別，條)。該三個界別之間的一致性問題將依然存根據第34條的規定，「處置機制當局」在。「處置機制當局」可行使某一金融機構可同時或先後施行一項或以上的穩定的權力，並管理該機構的事務、業務或措施，又或是只對金融機構中的若干部然而，有兩點是我們可以肯定的：《金財產。此外，「處置機制當局」亦可行分施行穩定措施。此外，「處置機制當融機構(處置機制) 條例》確實正試圖達使將證券轉讓予該局，又或是向該局發局」也可以選擇不施行穩定措施(可適用成一些不平凡的目標；以及，在香港行行證券的權力(第93條)。此等權力，可在第93條下的一般權力)，又或是允許相關使處置權力確實要面對許多潛在的複雜某些層面與清盤人的權力作一比較，但金融機構按正常情況倒閉(大概是藉著行問題。 n 處置的目的與結果，與清盤程序中的資使「處置機制當局」將金融機構清盤的

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Lessons from the WannaCry Ransomware Attack

By Ben Yates, Senior Associate in Commercial Disputes RPC Rico Chan, Trainee Solicitor RPC

36 www.hk-lawyer.org August 2017 • CYBERSECURITY 網絡安全

he recent WannaCry cyber-attack the victim is a “soft target”. realisation that the payment of ransom has sent shockwaves through the … encourages the incidence of piracy for T However, it is understandable that some global business community. Since its the purposes of exacting more ransoms. victims may be tempted to risk making initial outbreak in May 2017, the largest (Perhaps it should be said that the the ransom payment. Time pressures ransomware attack in internet history has pirates are not classified as terrorists. It may mean that businesses have limited infected over 300,000 computers in more may be that the position with regard to options. Some victims may choose to than 150 countries. According to some terrorists is different.) rely on their backup systems to restore estimates, the attack has given rise to the files, while others may opt to employ The court’s observation that the public US$4 billion in losses. In late June 2017, a computer experts to attempt to decrypt policy position with regard to terrorists similar ransomware attack using “Petya” the files. However, none of these methods could be different has, at present, limited ransomware hit computers across the is usually as effective as obtaining relevance to ransomware attacks. In globe. the decryption “key” directly from the Hong Kong, under s. 7 of the United The WannaCry and Petya incidents hackers. This is particularly true when Nations (Anti-Terrorism Measures) highlight a growing danger posed to the victim has not made regular system Ordinance, a person must not provide or businesses by ransomware extortion. backups or does not have extensive collect any property with the intention In a typical attack of this kind, hackers financial resources or technological or knowledge that such property will use malicious software to encrypt the support. be used to commit any terrorist acts. victim’s data, blocking access to it and However, to date, there is no known threatening to publish or delete it, unless The Legality of Ransom connection between ransomware attacks a ransom is paid. This article discusses Payments in Hong Kong and terrorism, and even some of the legal and practical issues Is a business making a ransom payment if there were, the victim may not be surrounding ransomware attacks, acting lawfully in doing so? This question aware of it. It is therefore unlikely that a including the question of the legality not only concerns the victims, but also ransom payment made in response to a of ransom payments and the key their insurers. ransomware attack would fall within the role lawyers can play in advising on scope of this offence. Currently, there is no specific legislation preventative measures, mitigation of loss under Hong Kong or generally applicable It is worth noting that the UK’s Counter- and cyber insurance. international law which makes ransom Terrorism and Security Act 2015 Should a victim pay the payments illegal. Also, there is no duty introduced a new offence prohibiting ransom? on ransom payers to report the incidents insurers from making any reimbursement to the police in Hong Kong (although the of ransom payments made by the insured It is doubtful whether paying a ransom is police encourage them to do so). to persons involved or suspected to be likely to be productive in the majority of involved in terrorism. It remains to be In Mansefield AG v Amlin Corporate cases. Carrying out a ransomware attack seen whether Hong Kong will adopt a Member Ltd [2011] EWCA Civ 24, a case is a highly illegal act, in contravention similar provision. of several statutory criminal laws and which involved the seizure of a vessel punishable by lengthy prison terms. If and its cargo and crew off the coast of Litigation Exposure for Data caught, the offenders may be charged Somalia by pirates, the common law Breaches and Data Loss with offences under the Theft Ordinance position on whether the payment of a Businesses suffering from ransomware Lessons from the (fraud, blackmail) and s. 60 of the Crimes ransom is lawful was clarified by the attacks may face potential claims arising Ordinance (destroying or damaging Court of Appeal of England & Wales. An from data breaches or loss of data. property), as well as more “cyber-crime”- argument was raised that the ransom WannaCry Ransomware Attack specific offences under s. 161 of the payment was unlawful since it was Under the Personal Data (Privacy) Crimes Ordinance (access to a computer contrary to public policy to reward piracy. Ordinance (“PDPO”), a “data user” shall comply with the data protection with criminal or dishonest intent) and However, the Court of Appeal rejected principles covering various aspects of s. 27A of the Telecommunications this argument, concluding: Ordinance (unauthorised access to “personal data”. Principle 4 requires data there is no universal morality against computer by telecommunications). users to take all practical steps to protect the payment of ransom, the act not Individuals prepared to commit such personal data against unauthorised or of the aggressor but of the victim of serious criminal offences are unlikely feel accidental access, processing, erasure, piratical threats, performed in order to any ethical quandary if they fail to honour loss or use. save property and the liberty or life of a bargain to release their victims’ data Those steps may include the use of hostages. There is no evidence before on receipt of a ransom. Even if the data is secure computer software. The WannaCry the court of such payments being illegal released, payment of the ransom is likely hackers took advantage of a security anywhere in the world. This is despite the to encourage repeat attacks by indicating flaw in the Microsoft Windows operating

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system. Microsoft had issued security company should not be liable for security It is relatively common for those taking patches for the more recent versions breaches. Unless security is integral to out cyber insurance policies to lack of Windows in order to address this the product’s purpose (eg, in the case adequate understanding of how those vulnerability, but not all users had of antivirus software), such clauses are policies operate, and what is and is installed the patch. Of further concern likely to satisfy the reasonableness test not covered by them; many will benefit was the vulnerability of the 16-year- under the Control of Exemption Clauses significantly from legal advice and old Microsoft Windows XP, for which Ordinance. assistance with negotiation at the time Microsoft had stopped releasing security of entry into the policy. Areas particularly patches in April 2014. Despite its age, Shifting Risks via Cyber ripe for disputes, and which may be Windows XP has continued to be used Insurance affected by the policy wording, include widely. If hackers gained access to or Recently, the Hong Kong Productivity causation, the date on which the loss destroyed personal data stored on a Council reported a 23 percent rise in is deemed to have been suffered, the business’ computer system as a result of security incidents in Hong Kong in 2016 timeliness and proportionality of the its failure to update the operating system as compared to 2015. Among the 6,058 insured’s response, and the adequacy of used on its computers or to download incidents, malware cases (including the insured’s cyber security measures. and install security patches when ransom attacks) powered the surge, available, the business could be held to with the number of reported incidents Guidance on Reducing Cyber have failed to take adequate steps to increasing by 247 percent. In this context, Risks prevent the incident, in contravention of cyber insurance can play an important Besides cyber insurance, businesses Principle 4. role in shifting the business risks should be advised to adopt cyber In addition, pursuant to s. 66 of the associated with cyber security. Although security measures (indeed, failing to PDPO, any person suffering damages as policy terms vary significantly, policies take adequate measures could prevent a result of such contravention would be generally provide coverage for costs recovery under the insurance policy, entitled to claim compensation from the connected with ransomware attacks, for and could in some circumstances “data user”. Victimised businesses must, example: also expose directors and officers to personal liability). In response to the therefore, be mindful of their potential • Ransom payment: usually a ransom alarming proliferation of the WannaCry exposure to civil claims from parties is not paid up-front by the insurer; ransomware, on 15 May 2017 the affected by damage to, disclosure of or once the threat is over, the insurer will Securities and Futures Commission loss of personal data, which may include reimburse the policyholder for the published a circular to alert all licensed their employees, clients and trading ransom up to a certain amount. partners. corporations to the risk of ransomware • Costs of data restoration: victims attacks and suggested the following Can a victim sue the software will commonly consult computer measures: specialists for assistance with supplier? decryption of the files or restoration • apply the latest security update to One potential avenue for recovering from backups. your computers and network devices; losses resulting from a ransomware • Loss of revenue due to business • install and properly set up a firewall attack is to bring proceedings against the interruption: typically there must be or broadband router for connecting software supplier for the security flaw. a direct causal relationship between your devices to the internet; Such a claim may be brought on the the ransomware attack, business • perform offline backup (ie, backup on basis that the software supplier should interruption and the loss of revenue. another storage device, disconnected be held liable for breach of contract or after backup); in negligence for the vulnerability that • Costs of forensic investigation: existed in the software, which could forensic investigations are usually • avoid opening links and attachments be regarded as “defective”. However, required to determine the scope of in any suspicious emails; such claims can be problematic. In the attack and the files which have • avoid connecting any computer or particular, software suppliers may argue been lost or encrypted. device to your office network before the customer failed to take reasonable • Third Party Liability: defence proper security verification; and steps to prevent the attack (eg, by failing costs and civil damages arising • ensure that suitable antivirus / to install available security updates or from third party liability claims (eg, internet security software is installed antivirus software). customers and suppliers) arising out and regularly updated. of a cyber incident may be covered, The licensing agreements between Finally, the circular states that business such as security and data breaches, the suppliers and their customers entities are expected to evaluate the defamation, breach of privacy and usually include a standard exclusion effectiveness of their cybersecurity negligence claims. clause to the effect that the software controls critically and to seek advice from

38 www.hk-lawyer.org August 2017 • CYBERSECURITY 網絡安全

external experts if necessary. The circular’s recommendations are relevant not just to licensed corporations but also to a wide range of other organisations, including those not subject to industry- specific regulatory oversight; their attention should be brought to the SFC guidance, and to the numerous circulars on cyber security in general issued by the SFC, HKMA and the Privacy Commissioner. The security measures recommended in such circulars may, however, appear to many businesses to be 以WannaCry勒索軟件 prohibitively expensive to implement; lawyers can assist by advising on what measures are likely to satisfy the 所發動的攻擊為戒 applicable regulators as adequate and proportionate for the organisation in question. 作者 Ben Yates 商業糾紛部高級律師 RPC Rico Chan 實習律師 RPC Conclusion WannaCry and similar incidents have 期由WannaCry(中文譯名為「想哭」) 行(欺詐、勒索)、《刑事罪行條例》第60 raised significant IT security issues across various industries in Hong 近勒索軟件所發動的網絡攻擊，引起全條下的罪行 (摧毀或損壞財產)、《刑事罪 Kong and across the world. The loss 球商業領域的極大震盪。這一互聯網史上歷行條例》第161條下與「網絡罪行」有更 suffered and liability to third parties 來規模最大的勒索軟件攻擊，在2017年5月密切關連的罪行 (有犯罪或不誠實意圖而 incurred in the event of such an 首度爆發後，導致逾150個國家的三十多萬取用電腦)，以及《電訊條例》第27A條 attack can be devastating. Businesses 台電腦受到感染。根據估計，是次攻擊造成 (藉電訊而在未獲授權情況下取用電腦資 should therefore be advised to keep a close eye on the latest technological 了40億美元的損失。2017年6月下旬，另一料)。決意干犯該等嚴重罪行的人，即使 developments and on the steps they 個勒索軟件“Petya”也向全球電腦發動了他們於收取贖款後不履行承諾，將受害者 should take to protect their IT systems 類似攻擊。的資料交回，他們內心也不會感到如何歉 from such an attack in compliance 疚。縱然他們將資料交回，但受害者願意 with any applicable regulations. 從WannaCry和Petya在互聯網上肆虐觀支付贖款，這在他們心目中，受害者顯然之，勒索軟件對企業所造成的危害正在與 However, the reality is that no system 是一個「軟目標」，他們會因而被鼓勵， is entirely invulnerable. Before 日俱增。在此類典型的網絡攻擊中，黑客再度向受害者發動攻擊。 becoming a victim to a ransomware or 會使用惡意軟件來將受害者的資料加密， other cyber attack, businesses should 並威脅受害者支付贖款，否則會攔阻他們然而，有一些受害者確實會願意冒險，嘗 therefore be advised on making the 存取有關資料，甚至會將這些資料公開或試支付贖款。他們的此舉，其實也是可以 necessary preparations for the worst, 刪除。本文將討論與勒索軟件攻擊有關的理解的。時間緊迫所造成的壓力，使企業 ensuring not only that they have adequate insurance cover in place but 一些法律與實務上的問題，包括支付贖款沒有太多選擇餘地。一些受害者會考慮運 also that they adopt comprehensive 是否合法；以及，在採取防範措施、減少用其備份系統，將有關檔案復原；另一些 response plans to mitigate the 損失及網絡保險等事宜的意見提供上，律受害者則會考慮聘請電腦專家，由他們來 potential losses resulting from 師可扮演的關鍵角色。協助將有關檔案解密。然而，所有這些方 ransomware attacks. Such response 法，通常都比不上直接從黑客那兒取得解 plans should include the coordination 受害者應否支付贖款？ of urgent assistance from lawyers and 密的「鑰匙」；特別是，受害者倘若並沒 technical experts well versed in the 在大多數情況下，支付贖款是否便能夠將問有定期為其電腦系統進行備份，又或是欠 field. n 題解決，這是令人值得懷疑的。犯事者如被缺充足的財政資源或技術支援，情況尤其抓獲，他們可能會被控《盜竊條例》下的罪如此。

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支付贖款的合法性遭受勒索軟件的攻擊而支付贖款，不應被向其提出民事申索 (該等人士可包括其員企業支付贖款的做法是否合法？這一問題視作干犯上述罪行。工、顧客及生意夥伴)。不僅為受害者所關注，其保險公司也對此值得注意的是，英國的UK’s Counter- 受害者是否有權起訴軟件供應同樣重視。 Terrorism and Security Act 2015一案訂商？立了一項新罪行，規定受保人如果向任何香港目前並沒有這一方面的具體法例，而因勒索軟件的攻擊而蒙受損失的一個可能涉及或懷疑涉及恐怖主義的人士支付贖國際上也沒有任何通行法規，訂明支付贖追討途徑，是向其軟件存在安全漏洞的款，保險公司不得向該名受保人作出賠款的行為違法。另一方面，支付贖款的人供應商提起法律程序。提出有關申索的償。至於香港是否會實行類似規定，仍需士並沒有責任將有關事宜向警方呈報 (雖理據，可以是基於軟件供應商所提供的軟我們拭目以待。然香港警方也鼓勵他們如此行)。件存在漏洞(而此等漏洞可視為「產品缺在Mansefield AG v Amlin Corporate 因資料洩漏及喪失而導致的訴訟陷」)，因此該供應商應當就有關的違約 Member Ltd [2011] EWCA Civ 24一案風險或疏忽承擔法律責任。然而，要成功提出此等申索也絕非輕易，因為該等軟件供應中 (那是一宗涉及索馬利亞海域附近的海遭受勒索軟件攻擊的企業，可能會面對因商可辯稱，它的顧客並沒有採取合理步驟盜，擄走了一艘貨船及其船員和貨物)，為洩漏或喪失資料而提出的申索。英格蘭和威爾斯上訴法院闡明了在普通來避免其遭受攻擊(例如，該顧客並沒有根據《個人資料(私隱)條例》，「資料使法下，支付贖款是否合法的問題。有人認下載或安裝該些向其提供的安全性能更新用者」必須遵守涉及個人資料的各個方為，支付贖款的行為不合法，因為此舉無或殺毒軟件)。面的保障資料原則。第四項保障資料原則疑是對海盜的所作所為給予獎勵，違反公供應商與其客戶之間的許可協議，通常會規定：資料使用者必須採取切實可行的步共政策。包含一項標準免責條款，指明軟件公司不驟，保障個人資料不會未經授權或意外地須為任何資料洩漏承擔法律責任。除非就然而，該上訴法院不接受這一說法，並認被查閱、處理、刪除、喪失或使用。為：該產品之目的而言，安全性能是其中一個該等步驟可包括安全電腦軟件的使不可或缺的部分(例如，該產品是殺毒軟支付贖款沒有違背普世的道德規範，因用。WannaCry勒索軟件的黑客，利用微件)，否則該項免責條款將有很大可能通為此等行為並非由侵害者，而是由面對軟視窗作業系統中存在的安全漏洞。儘管過《管制免責條款條例》中的合理性測海盜行為威嚇的受害者作出，目的是為微軟曾經就較近期的視窗版本向用戶發送試。了拯救財產以及被擄者的自由和生命。安全補丁，以協助其修補有關的安全漏沒有人向本法庭提交任何證據，證明世洞，但並非所有用家都安裝了該些補丁。風險轉移與網絡保險界上有哪一地方，認定支付贖款的行較為令人關注的問題是，面世已有16年根據香港生產力促進局近期所發表的一份為是不合法，儘管我們都曉得，支付的微軟視窗XP版本在遭受攻擊時，存在報告，香港在2016年所發生的安全性能贖款給海盜，確實會助長海盜行為，鼓頗大的安全漏洞 (從2014年4月開始，微事故，較2015年上升了百分之二十三。勵他們作出更進一步的苛索。(但有一軟已經停止為該版本發送安全補丁)。儘在總共6,058宗的安全性能事故中，惡意點也許必須加以說明的是，海盜與恐怖管該版本已經被使用了一段很長的時間，軟件的肆虐 (包括勒索軟件所發動的攻擊) 份子並不屬同一類人。今天如果是恐怖但它現時仍然被廣泛使用。企業如果未能，是導致安全性能事故上升的主要原因，分子作出此等行為，情況也許便會不一更新其電腦作業系統，或是下載和安裝該而所通報的事故數目，亦因而增加了百分樣。) 等向其提供的安全保丁，以致黑客有機可之二百四十七。在這情況下，就轉移與網雖然該法院指出，針對恐怖分子的公共政乘，取用或破壞其電腦系統中所儲存的個絡安全有關的企業風險而言，網絡保險可策是有所不同，但在目前，它與勒索軟件人資料，它有可能會被視作沒有採取充足從中扮演一個重要的角色。雖然保單中的所發動的攻擊並沒有太大關連。在香港，步驟以防止有關事故發生，從而違反了第條款各有不同，但一般而言，它們都會包《聯合國(反恐怖主義措施)條例》第7條四項保障資料原則。含因勒索軟件攻擊所招致的費用。例如：訂明：任何人不得提供或籌集任何財產，此外，根據《個人資料 (私隱)條例》第 • 支付贖款：保險公司通常不會預先支倘若他懷有意圖或是知道，該等財產將會 66條，任何人如因該等違反事項而蒙受付贖款；當威脅解除後，保險公司會用將於作出恐怖主義行為。然而，直至今損害，他們有權就該損害向有關的「資料向保單持有人返還其所已支付的贖款天為止，在香港出現的勒索軟件攻擊，其使用者」申索補償。因此，受害的企業 (金額達至某一程度)。與恐怖主義並沒有任何已知的聯繫；即使必須留意，它們有可能會面對因個人資料 • 還原資料的費用：受害者通常會要求有，受害者也可能並不知情。故此，因為受損、被披露、或喪失而受影響的人士電腦專家協助將有關的檔案解密或是

40 www.hk-lawyer.org August 2017 • CYBERSECURITY 網絡安全

將備份還原。企業並沒有採取充分措施，它們有可能關注，包括該些不須受特定行業規則監管

• 因業務受到干擾而蒙受的收入損失：會無法根據其保單，要求保險公司作出的企業。此外，它們也應當留意證監會所一般而言，勒索軟件所發動的攻擊、相應賠償；在某些情況下，企業的董事發出的指引，以及由證監會、金管局、個業務干擾、和收入損失之間，必須有或高級人員也可能需要面對承擔個人法人資料私隱專員等，就網絡安全所發出的直接的因果關係。律責任的風險)。WannaCry勒索軟件的無數通函。不斷擴散，情況令人擔憂，香港證券及 • 法證調查費用：進行法證調查的目然而，對於許多企業來說，該等通函所建期貨事務監察委員會乃於2017年5月15 的，是要確定受攻擊的範圍，和確定議採取的安全措施，均涉及高昂的成本和日發出一份通函，就勒索軟件攻擊所可有哪些檔案已經喪失或已被加密。費用，以致它們感到寸步難行。律師也許能帶來的風險，向所有持牌法團發出警可以就：有哪些措施較有可能會被監管機 • 第三方法律責任：其保障範圍可包括告，並建議它們採取以下的防範措施：構視為充分和相稱，向相關的企業提供意因網絡事故所引致的第三方法律責任 • 為電腦及網絡裝置安裝最新的保安見。申索(例如：由客戶和供應商提出)而更新程式；產生的抗辯費用和招致的民事損害賠結語 • 將裝置連接至互聯網前，應安裝並償。其範圍包括：就安全性能及資料 WannaCry勒索軟件所發動的攻擊以及其妥善設置防火牆或寬頻路由器；洩露、誹謗、私隱受到侵害和疏忽等他類似是故，引發香港與全球各個產業， • 進行離線備份(即使用其他儲存裝方面而提出的申索。對資訊科技安全問題的極大關注。該等攻置，備份後立即移除)；投購網絡保險的人士經常對其保單如何運擊所導致的損失，以及須對第三方承擔作，以及其保單涵蓋或不涵蓋哪些保障， • 避免打開任何可疑電郵內的連結或的法律責任，在程度上可以十分驚人。因都缺乏充足的了解。因此，法律顧問倘若附件；此，為了符合任何適用的監管規定，法律能在其客戶簽訂保單時提供相關意見，並 • 在安全性妥為核實之前，避免將任顧問應當建議企業密切留意科技的最新發在進行有關商議時提供協助，這將可讓其何電腦或裝置連結至公司網絡；及展，並採取適當步驟以保護其資訊科技系統免受外來的攻擊。客戶的利益得到重大保障。特別容易產生 • 確保已安裝並及時更新防毒軟件或爭議，以及可能會受保單所運用的措辭影互聯網保安應用程式。然而，現實情況往往是，沒有任何一個系響的地方包括：因果關係、視作蒙受損失最後，該份通函指出：企業實體應當嚴統是完美無瑕。企業如要避免成為勒索軟的日期、受保人所作回應的及時性和相稱格檢視及評估其網絡保安監控措施的成件和其他網絡攻擊的目標，便應當預先為性，以及受保人所採取的網絡安全措施是效，有必要時，應當尋求外部專家的意最壞的情況作打算，確保其自身已經備有否充分等。見。充分的保險，並已採取了廣泛的應變措施，以減輕因勒索軟件所發動的攻擊而蒙降低網絡風險的相關指引該份通函所提出的建議，事實上並非只受的損失。應變的計劃應當包括：為擅長除了網絡保險外，法律顧問也應當就網絡與持牌法團有關，其他機構也應當積極處理這方面問題的律師及技術專家所提供的安全措施向企業提供意見(事實上，倘若的緊急援助，作好充分協調的準備。 n

www.hk-lawyer.org 41 • August 2017

Hong Kong Court Opens Door to Winding Up Foreign Company Arbitration Award Debtor on Basis of Its Secondary Listing in Hong Kong

By Damien McDonald, Partner Fangda Partners in association with Peter Yuen & Associates Matthew Townsend, Legal Manager Fangda Partners in association with Peter Yuen & Associates

42 www.hk-lawyer.org August 2017 • DISPUTES 爭議

n Shandong Chenming Paper Holdings the Company in relation to a dispute ILimited v Arjowiggins HKK 2 Limited (HCMP arising out of a joint venture agreement. 3060/2016), the Hong Kong Court of First Subsequently, by an arbitral award Instance (“CFI”) decided that an otherwise dated 20 November 2015, the arbitration solvent mainland Chinese company with a tribunal awarded AH2 damages of RMB secondary listing in Hong Kong, but with no 167,860,000 (the “Award”). On 7 December assets in the jurisdiction, could be wound up 2015, AH2 obtained leave from the CFI to in Hong Kong for failure to make payment of enforce the Award. The Company failed to an arbitral award. make payment and, on 18 October 2016, AH2 served a statutory demand on the The company sought a declaration that it Company. should not be wound up under Hong Kong law because the petitioner would not derive The Company then applied to the court ex benefit from the winding up. The CFI rejected parte on notice to enjoin AH2 from issuing the company’s arguments, so potentially a winding up petition and then issued an opening up an avenue of enforcement originating summons seeking a declaration against award debtors whose shares are that the circumstances did not satisfy the listed in Hong Kong, but do not otherwise “three core requirements” for the court to have assets in the jurisdiction. exercise its discretion.

Legal Background The Company contended that it did not have any assets or undertake any business The Hong Kong courts have the power to in Hong Kong and its only connection with wind up a foreign company under s. 327(1) the territory was its listing. It therefore and (3) of the Companies (Winding Up submitted that the appointment of a and Miscellaneous Provisions) Ordinance liquidator in Hong Kong would be futile (Cap. 32). This is a discretionary jurisdiction. as he or she would not be able to realise It applies notwithstanding that ordinarily the the Company’s mainland assets. In other appropriate jurisdiction to wind up a company words, no benefit would be derived from the is the jurisdiction in which it is incorporated. winding up order (and so the second core The courts have developed three “core requirement would not be satisfied). requirements” which must be satisfied AH2 contended that it would benefit before the discretion is exercised: (1) there from a winding up on the basis: (1) that is a sufficient connection with Hong Kong the Company’s listed status in Hong (but not necessarily the assets within the Kong was a valuable and realisable asset jurisdiction); (2) there is a reasonable in Hong Kong; (2) that the Company possibility that the winding-up order would had, prior to April 2015 a directly held benefit those applying for it; and (3) the court subsidiary in Hong Kong, which controlled must be able to exercise jurisdiction over one a significant part of the Company’s profit or more persons in the distribution of the and which, notwithstanding a subsequent company’s assets (per Kwan J in Re Beauty restructuring by which it became an indirect China Holdings Ltd [2009] 6 HKC 351). subsidiary held through Mainland and BVI companies, a liquidator could potentially Factual Background & Arguments obtain control of, and recover assets held The Plaintiff (the “Company”) is incorporated by, this subsidiary; and (3) the winding in mainland China with shares listed on the up would facilitate an investigation into Shenzhen Stock Exchange, and a secondary alleged breaches by the Company of the listing of shares on the Stock Exchange of Listing Rules by failing to have at least one Hong Kong Limited. independent non-executive director who is In October 2012, the Defendant (“AH2”) ordinarily resident in Hong Kong. commenced arbitration proceedings against

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Decision In the words of Justice Harris, of nationality, it is important to note “[t]he damage done to the Company’s that, although the court’s reasoning The CFI first examined, and in turn reputation and the possible interference addressed mainland Chinese companies, dismissed, each of AH2’s arguments in its ability to carry on business overseas there is no reason in principle why as to applicable benefit. First, in view as a consequence of enforcement action this should not apply to all foreign of its corporate structure, the value by a liquidator would be immense”. companies with secondary listings in of the listed status of the Company in Furthermore, “[u]nless the Company Hong Kong. Hong Kong was, “viewed realistically”, was surprisingly indifferent to these not capable of providing a material adverse consequences one would expect Comments on Public Policy benefit to AH2 or other creditors of the its management at some point in time to Company. In light of the finding that there was decide that the Company had no choice, sufficient benefit as described above, Second, with respect to a potential but to pay the Award”. the CFI’s further finding on public policy liquidator realising benefits in the The CFI went on to refer to “another is an important one. The implications Company’s indirect subsidiary via the consideration”, which would justify the of Justice Harris’s decision on public winding up of the Company, the CFI moderation of the core requirements. policy are obvious in that there is now a observed that it was “very difficult to This consideration, put simply, was the precedent in Hong Kong at the CFI level predict how a court in the Mainland Company’s conduct in refusing to pay that in appropriate circumstances where would react to an order made by the the award, notwithstanding its ability a solvent foreign company listed in Hong Hong Kong court to wind up a company to do so. Justice Harris considered that Kong simply refuses to pay a debt, the incorporated in the Mainland”. The court there was a public interest in sanctioning Hong Kong courts may exercise their then concluded on this issue that while this “unacceptable” conduct, in order “to discretion to wind up the company. it could not “entirely discount action by disabuse other Mainland companies of a liquidator in the Mainland resulting Whilst this decision is an important one, the idea that they can take the benefit of in a recovery for creditors it is a factor of and will no doubt be relied on in further access to Hong Kong’s financial system limited weight”. cases to support similar applications, without the burden of complying with our we do not consider that it sets down a Finally, when it came to the Company’s laws”. general principle that foreign companies alleged breach of corporate governance Justice Harris dismissed the originating with no other connection other than a rules, the court found that “there are summons. He also awarded AH2 its listing in Hong Kong, which refuse to pay other ways of dealing with these kinds of costs on an indemnity basis, reflecting their debts, will automatically justify a infractions and of themselves they do not the “unethical conduct of the Company”. winding up order. justify putting a solvent listed company into compulsory liquidation and, more The jurisdiction to wind up a foreign Comments on Leverage and pertinently, the Defendant would probably company remains a discretionary Winding Up derive no benefit from an investigation jurisdiction and the petitioner in each into breaches of the Listing Rules”. A petitioner is entitled to file a winding case, will still be required to establish the up petition against a solvent company core requirements and, in exceptional However, notwithstanding its rejection of where the petitioner is clearly owed circumstances, that the public policy AH2’s arguments, the court nonetheless a liquidated sum and the debtor grounds ought to properly apply to the went on to find in AH2’s favour that, company does not have any valid ground exercise of the court’s discretion. n although the Company had no assets in for refusing payment (Re Yueshou Hong Kong, AH2 would derive a benefit Environmental Holdings Ltd, unreported, The authors wish to thank Vivian from the winding up order against the HCCW 142/2013, Harris J, 16 July 2014). Company. Choi, trainee solicitor at Peter Yuen The court then has discretion as to & Associates for her assistance in The court found that, whilst no obvious whether to wind up the company. preparing this article. benefit could be derived from the listed In the present case, the important status of the Company or its assets held principle to note is that in appropriate outside of Hong Kong, such benefit cases, the “immediate and severe” could be derived from the “leverage” consequences that would inevitably force to AH2 created by the prospect of a the company to pay is in itself sufficient winding up petition/appointment of a “benefit” to the petitioner. In respect liquidator.

44 www.hk-lawyer.org August 2017 • DISPUTES 爭議

香港法院基於外國公司仲裁裁決債務人在香港的第二上市而容許對其進行清盤 REUTERS/Kin Cheung

作者麥道民合夥人上海市方達律師事務所聯營阮葆光律師事務所馬修法律經理上海市方達律師事務所聯營阮葆光律師事務所

港原訟法庭在Shandong 法律背景案中所作的評論)。香Chenming Paper Holdings Limited 香港法院有權根據《公司(清盤及雜項條事實背景與論點 v Arjowiggins HKK 2 Limited (HCMP 文)條例》(第32章)第327(1)條，對一家外原告人(下稱「該公司」)於中國內地註冊 3060/2016) 一案中，裁定一家具償債國公司進行清盤。這是一項酌情性的司法成立，其股份於深圳證券交易所上市，並能力，並在香港進行第二上市的內地企管轄權，而在一般情況下，對有關公司進於香港聯合交易所第二上市。業，雖然其在香港並沒擁有任何資產，行清盤的適當司法管轄區，應當是該公司但仍可因其沒有支付某項仲裁裁決所判註冊成立所在的司法管轄區。 2012年10月，被告人(下稱“AH2”)就定的款額而在香港被清盤。某一因合資經營協議而產生的爭議，向法庭訂立了三項「核心規定」，規定在行該公司提起仲裁程序。其後，根據一項於該內地企業要求法庭作出宣告，它不該使酌情決定權之前，該三項「核心規定」 2015年11月20日作出的仲裁裁決，仲裁根據香港的法律被清盤，原因是提出有首先必須獲得符合，即是：(1) 該公司與香庭裁定AH2可以獲得人民幣167,860,000 關清盤的呈請人，並不會從該項清盤中港有著充分聯繫(但並非必須在香港擁有資元的損害賠償(下稱「仲裁裁決」)。2015 獲得任何利益。原訟法庭拒絕接納該產)；(2) 該項清盤令有促使申請人獲益的年12月7日，AH2取得可強制執行該仲裁內地企業的這一說法，並因此開闢了途合理可能；及(3) 在分配該公司的資產過程裁決的原訟法庭許可。然而，該公司未能徑，讓該等在港上市，但並無任何資產中，法庭必須能夠對一名或多於一名人士支付該仲裁裁決所判定的款額，AH2於是在港的仲裁裁決債務人，可被強制執行行使司法管轄權(關淑馨法官在Re Beauty 在2016年10月18日向該公司送達一份法相關仲裁裁決。 China Holdings Ltd [2009] 6 HKC 351一定要求償債書。

www.hk-lawyer.org 45 • August 2017

該公司於是向法庭作出單方面申請，要最後，關於該公司違反企業管治規則的指任何有效理由拒絕償還該筆款項，則呈求發出禁止AH2提出清盤呈請的通知；然控，法庭裁定：「事實上，要處理該等違請人有權向這家債務人公司提出清盤呈請後，該公司再發出一份原訴傳票，要求法規情況也可以有其他方法。縱使有違規情 (Re Yueshou Environmental Holdings Ltd, 庭宣告有關情況並不符合該三項支持法庭況出現，這亦不足以構成任何理由，將一 unreported, HCCW 142/2013, Harris J, 可行使其酌情決定權的「核心規定」。家具償債能力的上市公司予以強制清盤。 16 July 2014)，至於這家公司是否會被但更為相關的一點是，即使要對該公司是清盤，法庭對此享有酌情決定權。該公司辯稱，它並沒有在香港擁有任何資否違反了《上市規則》展開調查，被告人產和經營任何業務，而它與香港的唯一聯本案中，一項需要注意的重要原則是：在也不大可能會從中獲得任何利益」。繫，就是它在香港聯交所的上市。因此，適當的情況中，可有力迫使該公司支付有它認為在香港委任清盤人並無意義，因為然而，雖然法庭拒絕接納AH2的論點，關款額的「即時及嚴重」後果，其本身該清盤人無法將該公司在內地的資產變但法庭接著作出了有利於AH2的裁決，即足以構成該呈請人的「利益」。就公司的現。換句話說，AH2並不能從該清盤令獲是：雖然該公司在香港並沒有任何資產，國籍而言，有一點值得注意的是，法庭以得任何利益(亦因此未能符合第二項核心但AH2仍可從法庭向該公司發出清盤令而上所作的論述，雖然主要是針對內地的企規定)。獲益。業，但原則上，我們沒有理由認為該等論述不能適用於其他在香港作第二上市的外 AH2主張，它可以因該項清盤而獲得利法庭認為，即使AH2不能因該公司的上市國企業。益，理由是：(1)該公司在香港的上市地地位，又或是因它在香港以外的地方持有位，是一項具有價值及可變現的香港資資產而獲得明顯利益，但AH2可以藉著清關於公共政策的評論產；(2)在2015年4月以前，該公司曾在盤呈請／對相關清盤人的任命所產生的「除了如上所述，原訟法庭裁定AH2在該案香港直接持有一家附屬公司，而這家附屬槓桿效應」而獲得利益。享有充分的利益外，原訟法庭進一步就公公司控制了該公司很大一部分的利潤；儘夏利士法官指出：「清盤人所採取的強制共政策所作的裁定，也具有相當重要的意管其後進行了重組，以致該附屬公司成為執行行動，對該公司在聲譽上所蒙受的損義。夏利士法官就公共政策所作的裁定，了一家須通過內地及英屬維爾京群島的公害，以及對其經營海外業務的能力所可能其所產生的影響是明顯的，因為現時香港司而間接持有的附屬公司，但清盤人仍然造成的干擾，其程度可以十分巨大」。此在原訟法庭的層次，已經立下了一個案可以取得對該附屬公司的控制權，並追討外，「除非是令人感到意外地，該公司毫例，規定在適當情況下，一家具償債能力由該附屬公司所持有的資產；及(3)由於不在乎會為其帶來甚麼不利後果，否則一並在香港上市的外國公司，倘若它拒絕履該公司沒有委任至少一位通常在香港居住般人都會預期，到了某個時候，該公司的行義務償還某一債項，香港法院可行使酌的人士擔任其獨立非執行董事，故被指違管理層終會認定他們別無選擇，而惟有支情決定權將其清盤。反《上市規則》，而該項清盤將可有助對付該仲裁裁決所判定的款額」。有關指控展開調查。雖然該項裁決是一項重要的裁決，並且毫接著，原訟法庭提到「另一項考慮因素」無疑問，將會在其他案件中作為支持類似裁決，而該項因素會為調整該等核心規定提供申請的依據，但我們並不認為已據此訂立原訟法庭首先作出了有關審視，繼而駁回理由。簡單而言，它所指的就是該公司了一項普遍原則，規定一家在香港上市的 AH2所提出的各項關於其可獲益的論據。的行為表現：儘管該公司有能力支付該仲外國公司，倘若它拒絕履行其償還債項的首先，「從現實角度來看」，基於該公司裁裁決所判定的款額，但它仍拒絕作出支義務，那麼即使它與香港並無任何其他聯的企業結構，該公司所具有的香港上市地付。夏利士法官認為對改等「不可接受」繫，法庭仍可逕自向該公司頒發清盤令。位之價值，並不能夠為AH2或該公司的其的行為作出懲處乃符合公眾利益，而此舉法庭向外國公司頒發清盤令的司法管轄他債權人提供重大利益。的目的，是為了「去除其他內地企業的一權，仍然屬於酌情性的司法管轄權，而在些想法，以為它們一方面可以透過香港的第二，潛在清盤人欲藉著將該公司清盤，有關案件中，呈請人仍須證明其符合相關金融體系而獲得利益，但一方面卻可以不而將在該公司的間接附屬公司中的利益變的核心規定，而在特殊情況下，法庭在行須承擔責任，遵守香港的法律」。現。但原訟法庭指出：「香港法院若頒使其酌情決定權時，必須以適當的公共政令，將一家在內地註冊成立的企業清盤，夏利士法官駁回該項原訴傳票，並裁定策理據作為支持。 n 很難估計內地的法院對此會有何反應」。 AH2可以按彌償基準獲得訟費，以反映「該公司的不符情理做法」。原訟法庭接著就這問題作出結論稱：雖然本文的撰寫和成稿，獲阮葆光律師事務所我們不能「完全忽視內地的清盤人可採取槓桿效應與清盤的評論的實習律師Vivian Choi提供協助，本文的行動，為該案的債權人追討相關債項，但作者謹此向她表示謝意。這項因素的成效只是有限」。倘若一家具償債能力的公司明顯地欠下呈請人一筆經算定的款項，而該公司並無

46 www.hk-lawyer.org KEN ADAMS DRAFTING CLEARER CONTRACTS 2017

Asian Legal Business (ALB) is proud to present internationally renowned Special offer: FREE BOOK contracts expert Ken Adams for a one day hands-on seminar that Participants will receive a complimentary copy of Ken Adams’s book, explores how to draft contracts that express deal terms clearly and A Manual of Style for Contract Drafting. The seminar explores issues effectively, saving you time and money, enhancing your competitiveness, addressed in detail in this one-of-a-kind book that has become a valued and mitigating risk. Rather than simply lecturing, Ken uses interactive resource for the legal profession. exercises, encouraging participation and addressing practical considerations related to the drafting process. This seminar is valuable Pricing (Includes seminar, luncheon, course materials, and Ken Adams’s book) for both junior and senior legal professionals, with tips that apply to all For Indonesia, Philippines and Hong Kong: contracts drafted in English, whatever the governing law. Early Bird: USD800 (ends 4 August 2017) Standard Rate: USD1,000 Target audience • Lawyers For Singapore (includes 7% GST): • In-house counsel Early Bird: SGD1,070 (ends 4 August 2017) • Paralegals and managers in law firms and corporations Standard Rate: SGD1,605 • Contract managers • Anyone who drafts, negotiates, or reviews contracts Group price: SAVE ADDITIONAL 20% - Register five participants from your organisation and the fifth person attends for free. Benefits of attending • Practical skills from a global industry leader Register • The problem with traditional contract language Indonesia: www.regonline.com/kenadams2017_JK • How efficient contract drafting can benefit your business Philippines: www.regonline.com/kenadams2017_PH • The basics of rigorous contract language and layout Singapore: www.regonline.com/kenadams2017_SG • Why revising your contract process can improve contract language Hong Kong: www.regonline.com/kenadams2017_HK

For more details about the events or to register your pass, contact Taranjit Kaur at [email protected] or call (65) 6870 3909

8.30am language and their function 12.05am 3.15pm Registration • How to distinguish between Using Defined Terms Drafting as Writing categories • Two kinds of definitions • Some general principles of good 9.00am • Why does it matter? • Role of the definition section writing that apply to contract • The state of contract drafting • Using an index of defined terms drafting • Costs and causes of deficient 10.30am drafting Refreshment Break 12.30pm 3.30pm • Goals for the program Networking Luncheon Bringing It All Together 10.45am • Redrafting sample provisions 9.20am Categories of Contract 1.30pm The Front and Back of the Language, cont. Ambiguity and Vagueness 3.40pm Contract • Different kinds of ambiguity Effecting Change • Title and introductory clause 11.45am • How to avoid them • The individual • Function and layout of recitals Layout • How to use vagueness • The organization • Traditional recital of • How to present sections, consideration subsections, and enumerated 2.10pm 5.00pm • Concluding clause clauses Select Usages End of event • Role of exhibits and schedules • Using Adams’s enumeration • Problematic words and phrases scheme • Clearer alternatives 10.10am • Issues of typography Categories of Contract Language 3.00pm • Different categories of contract Refreshment Break

Ken Adams, Author As the leading authority on contract language, Ken Adams has successfully coached people around the world in drafting clearer contracts. His groundbreaking book A Manual of Style for Contract Drafting has sold tens of thousands of copies internationally since it was first published by the American Bar Association in 2004. The Legal Writing Institute has announced that Ken is to receive the Golden Pen Award for 2014, “to recognize his exemplary work in contract drafting.” As part of its “Legal Rebels” project, in 2009 the ABA Journal named Ken one of its initial group of fifty leading innovators in the legal profession. And the ABA Journal included Ken’s blog in its 2013, 2012, 2010, and 2009 “Blawg 100”—its list of the hundred best law blogs. Ken is an adjunct professor at Notre Dame Law School. For more information about Ken and his activities, go to www.adamsdrafting.com. • August 2017

INDUSTRY INSIGHTS 業界透視

ADMIRALTY payment into court a shipowner gets to 海事法 limit its liability. The amount of security Shipowners’ Limitation is calculated by reference to units of 船東的局限法律責任的訴訟及 Actions and Funds account (or special drawing rights) based 限制基金 on the ship’s gross registered tonnage. The Eleni, HCAJ 189/2013, 9 May The Eleni案(HCAJ 189/2013，2017年 A shipowner’s limitation action begins 2017, arises out of a collision at sea. 5月9日)源於一宗海上撞船事件。涉案船 The case considers the relevance of with the issue of an in personam writ, 東設立了限制基金，對限制基金提出索償 s. 7 (“Limitation of actions”) of the which it will serve on a claimant affected 設有特定的最後限期，在The Eleni案考慮 Merchant Shipping (Collision Damage by the incident, and concludes with the Liability and Salvage) Ordinance grant of or refusal to grant a “limitation 的，是《商船(碰撞損害法律責任及救助) (Cap. 508) to the deadline specified for decree”. The court determines whether 條例》(「《條例》」)(第508章)第7條 the shipowner has the right to limit its making claims against a shipowner’s (「訴訟時效」)對特定最後限期限的相關 liability. limitation fund. The judgment decides 性。判決裁定，申索人不一定要對限制基 that the two-year limitation period There are very limited circumstances 金提出索償，在某些情況，兩年內發出令 in s. 7(1) of the Ordinance is properly in which a claimant (such as a cargo 狀，也是妥當地守住了《條例》第7(1)條 protected by issuance of a writ in certain owner) can object to the setting-up of circumstances and not necessarily by the the limitation fund. If a limitation decree 的兩年時效期。 filing of a claim against a limitation fund. is made, it will include (among other The Eleni案的判決是對船東的局限法律責 things) provision for an administrative The judgment is an interesting review 任訴訟的性質進行一次覆檢，讀來有趣。 of the nature of a shipowner’s limitation deadline for the filing of claims (known 在某些情況，不爭議法律責任的船東及∕ action. In certain circumstances, a as “references”) against the fund. The 或承租人，可以要求法庭宣告，按照《商 shipowner and/or charterer that does not limitation fund is constituted on the dispute liability can seek a declaration shipowner’s payment into court of the 船(限制船東責任)條例》(第434章)，其 that their liability be limited in fund with interest since the date of the 法律責任是有限的。涉案限制基金設立之 incident. accordance with the Merchant Shipping 時，《條例》應用《1976年海事索賠責 (Limitation of Shipowners Liability) The regime for a shipowner’s limitation 任限制公約》(在授權法例附表 2列出)， Ordinance (Cap. 434). At the time of fund is important. As the judgment in 其後以最新的1996 Tonnage Convention setting-up the limitation fund in this case The Eleni notes (at para. 12): the Ordinance applied the Convention 取而代之。 “Once the fund is constituted, the on Limitation of Liability for Maritime shipowner ceases to have any interest 因此，「局限法律責任的訴訟」通常是由 Claims 1976 (set out in Schedule 2 of in disputing anybody’s claim because 船東提出的，目的是限制其在重大海上事 the enabling legislation), which has he is liable only for the amount he has 故的法律責任，重大海上事故包括碰撞 subsequently been replaced with the paid in, and that being so all competing updated 1996 Tonnage Convention. 或貨物滅失，例如多個貨櫃從船上落入水 claimants to the fund are entitled to 中。根據制度，船東向法庭繳存款項，以 A “limitation action” is, therefore, usually dispute one another’s claims against 換取對其法律責任作出限制。擔保金額是 an action by shipowner to limit its liability the fund. It is similar to the interpleader for major incidents at sea, including proceeding in which the interpleader 根據船舶登記的總噸位，按計算單位(或 collisions or major cargo losses such as brings the claimants to court and leaves 特別提款權)計算。 multiple containers falling overboard. it to them to resolve their rights over the 船東的局限法律責任的訴訟以發出對人訴 Under the regime, in return for a subject matter of the interpleader.”

Andrew Horton, Partner, RPC

48 www.hk-lawyer.org August 2017 • INDUSTRY INSIGHTS 業界透視

訟令狀開始，令狀會被送達受事件影響的 encompass IP rights wherever subsisting, licensing is common in the IP sector, 申索人，最後以法庭發出或拒絕發出「局 by whatever name called, whether s. 103E specifically confirms this position 限法律責任的判令」結束。法庭裁定船東 registrable or registered, as well as new for an IP licensee who is not party to the types of IP rights which may come to be IP arbitration, while providing that this 是否享有局限其法律責任的權利。 recognised in future) can be arbitrated, does not affect the rights and liabilities 申索人(例如貨物擁有人)只在非常有限的 and that it is not contrary to public policy as between an arbitration party and the 情況下，才能夠反對設立限制基金。要是 to enforce IP awards in Hong Kong. third party licensee, whether those rights and liabilities arise in contract or by 法庭作出責任限制判令，判令會包括(除 These clarifications put beyond doubt operation of law. Meanwhile, upholding 了別的以外)規定對基金提交申索(被稱為 that IP disputes can be arbitrated party autonomy, new s. 103D(6) provides in Hong Kong. It avoids the legal 「轉交的申索」)的行政期限。限制基金 for the parties to have power to limit the uncertainties which some jurisdictions 是在船東向法庭繳存款項作為基金時設立 arbitrator’s power to award remedies face as to whether IP disputes, especially and relief, allowing greater flexibility 的，利息自事故發生當日起計算。 those concerning the validity of IP for the parties to decide on the scope of rights registered with or granted by IP 船東限制基金的制度是重要的。正如在 remedies and relief appropriate to their authorities, can be resolved by arbitration The Eleni案的判決所提到(第12段)： case. between private parties. Given the lack 「一旦基金設立了，船東不再有興趣爭議 of local case law on the issue, the legal The new Part 11A will come into 任何人的申索，因為他的責任只限於他已 position in Hong Kong has hitherto operation on 1 January 2018 (with the not been entirely clear. The enactment exception of s. 103J which will commence 經支付的金額，正因如此，所有瓜分基金 removes one potential hurdle for parties on the date of commencement of s. 123 的申索人有權爭議另一人對基金提出的申 to conduct IP arbitration in Hong Kong. of the Patents (Amendment) Ordinance 索。情況與互爭權利訴訟相似，互爭權利 2016). Part 11A will apply to an arbitration IP arbitration will continue to be 訴訟把各申索人帶到法庭，由各申索人解 commencing on/after 1 January 2018 as conducted under the statutory well as its related proceedings. Parties 決互爭權利訴訟標的事項的權利。」 framework of the Arbitration Ordinance. to an arbitration which has commenced This means, for example, that IP arbitral - 賀敦合夥人，RPC before that day can also opt to apply proceedings and arbitral awards will Part 11A to their arbitration or its related remain confidential unless the parties proceedings. otherwise agree, and subject to the ARBITRATION statutory exceptions in s. 18 of the The Arbitration (Amendment) Arbitration Ordinance. The Amendment Ordinance 2017 also updates the list Intellectual Property Ordinance also clarifies or adapts some of parties to the New York Convention Arbitration of the provisions of the Arbitration in the Arbitration (Parties To New York With the growth of intellectual property Ordinance to make them more user- Convention) Order (Cap. 609A). These creation and commercialisation, parties friendly to IP arbitration users. Pursuant amendments came into effect on the increasingly prefer to resolve their IP to s. 73 of the Arbitration Ordinance, IP date of gazettal (23 June 2017). disputes outside the court system. Most arbitral awards will, unless the parties - Hong Kong Department of Justice, of the cases administered by the World otherwise agree, be final and binding on Arbitration Unit Intellectual Property Organization the parties only, and do not bind or affect (“WIPO”) Arbitration and Mediation the rights of non-parties. Given that IP Center (http://www.wipo.int/amc/en/ center/caseload.html), according to its statistics, were filed in recent years, and the number of cases filed in 2016 alone was twice that in 2015. Opportunities abound for IP arbitration practitioners, Hong Kong is determined not to trail behind the global trend. The Arbitration (Amendment) Ordinance 2017 was enacted in June. It introduces a new Part 11A (s. 103A to 103J) to the Arbitration Ordinance (Cap. 609) to clarify that all disputes of intellectual property rights (broadly defined so as to

www.hk-lawyer.org 49 • August 2017

仲裁利。由於知識產權授權常見於知識產權的 The measures require the following 領域，第103E條特別為並非知識產權仲 China-registered financial institutions 知識產權仲裁裁一方的知識產權特許持有人，確定這種 to perform due diligence procedures on tax-related information of non-resident 隨著知識產權創造日益蓬勃，有更多知識情況，並同時規定，這不影響仲裁任何一 financial accounts: 產權被商品化，越來越多知識產權爭議方方與第三方特許持有人之間的權利或法律 • Commercial banks. 寧願在法院制度之外解決爭議。根據世責任，不論該等權利或法律責任是否由合 • Securities and futures companies. 界知識產權組織(「WIPO」)仲裁及調解約產生，或藉法律的施行而產生。同時， • Securities and private equity (“PE”) 中心的統計資料，中心處理的個案大多新訂的第103D(6)條維持各方的自主權， fund management companies and PE 數是在近幾年存檔的http://www.wipo. 規定各方有權限制仲裁員判給補救及濟助 partnerships (but not financial asset int/amc/en/center/caseload.html，單以的權力，讓各方有較大彈性，因應其情況 management companies). 2016年計，個案數目是2015年的兩倍。決定合適的補救方法及濟助。 • Insurance companies and insurance 知識產權仲裁從業員機會處處，香港定新訂的第11A部將於2018年1月1日實 asset management companies. 意緊貼全球趨勢，不落人後。《2017年施(第103J條則於《2016年專利(修訂) • Trust companies. 仲裁(修訂)條例》已於6月制定，在《仲條例》第123條的生效日期起實施)。第 The measures require qualified financial institutions to (among other things): 裁條例》(第609章)加入新訂的第11A部 11A部會適用於2018年1月1日或之後展 (第103A至103J條)，以澄清可就所有知開的仲裁及相關的法律程序。如果仲裁在 • Identify the tax residence status of 識產權權利(定義廣泛，包含各種知識產該日之前展開，仲裁各方可選擇把第11A individual and institutional account holders (or controllers). 權權利，不論權利在哪裡存在，用甚麼名部應用到其仲裁或相關的法律程序。 • Identify the financial accounts of non- 稱，是否可予註冊或已經註冊，也包含各《2017年仲裁(修訂)條例》亦更新《仲 residents. 種新的、將來有可能被承認的知識產權裁(紐約公約締約方)令》(第609A章)的締 • Gather and report the relevant 權利)的爭議，進行仲裁；也澄清強制執約方名單。這些修訂於刊憲日期(2017年 information on non-resident financial 行知識產權裁決，並不違反香港的公共政 6月23日)生效。 accounts and account holders. 策。 • Maintain the confidentiality of the - 香港律政司仲裁組這次是毫不含糊地闡明，知識產權爭議是 information gathered and retain the information for no less than five years. 可以在香港藉仲裁解決的。在私營企業或 • Register in the SAT’s website before 行業協會之間的知識產權爭議是否可以藉 GC AGENDA 31 December 2017 and report the 仲裁解決的問題上，特別是關乎已在知識 relevant information gathered during 產權當局註冊或由之批予的知識產權權利 SAT and PBOC Issue Rules the due diligence exercise before 31 的有效性的，有些司法管轄區正面對一些 on Due Diligence of Non- May of each year. 法律上不明確因素，而在香港進行仲裁就 Resident Financial Accounts The measures also require non-resident 可避開這些問題。由於香港未有這方面的 On 9 May 2017, several financial financial account holders to timely, 本地案例，香港的法律狀況至今一直未完 regulators including the State accurately and completely provide their financial institutions with the required 全清晰。這項條例消除仲裁方在香港進行 Administration of Taxation (“SAT”) and the People’s Bank of China (“PBOC”) information. 知識產權仲裁的潛在障礙之一。 jointly issued the Administrative Market Reaction 知識產權仲裁會繼續在《仲裁條例》的法 Measures for the Due Diligence Jon Eichelberger, Partner, Baker & Investigation of the Tax-related 定框架下進行。換言之，(舉例說)知識產 McKenzie, Beijing 權仲裁程序及仲裁裁決將仍然保密，除非 Information of Non-resident Financial Accounts, which will take effect 1 July “While the measures are targeted at 各方另有協議，並且不屬於《仲裁條例》 2017. the financial accounts of non-residents, 第18條的法定例外情況。修訂條例亦澄 their impact on non-residents is not The measures facilitate an annual 清、修改《仲裁條例》一些條文，以方便 likely to be material because, under automatic exchange of financial account 知識產權仲裁使用者使用。根據《仲裁條 China’s foreign currency controls, non- information with foreign jurisdictions residents have very limited channels for 例》第73條，除非各方另有協議，否則 following the Organisation for Economic maintaining financial accounts in China. 知識產權仲裁裁決會是最終裁決，並且 Co-operation and Development The greater impact by far will be on 只對仲裁各方具有約束力，對並非仲裁任 (“OECD”)’s Common Reporting Chinese residents with financial accounts Standard, or CRS. 何一方的，不具有約束力，也不影響其權 in other countries and jurisdictions,

50 www.hk-lawyer.org August 2017 • INDUSTRY INSIGHTS 業界透視

as the Chinese government, which taxes residents’ worldwide income, will automatically receive information about these accounts from the other participants under the Multilateral Competent Authority Agreement (“MCAA”). The automatic exchange of CRS information will change this situation dramatically and enable the tax authorities to collect more taxes from the foreign income of China’s residents.”

Action Items General Counsel for qualified financial institutions will want to closely study the 料。每年自動交換CRS資料將大大改變現 requirements under the measures and 夥企業(但不是金融資產管理公司)。 ensure these institutions install specific • 保險公司、保險資產管理公司。時情況，並使稅務機關能夠從中國居民的 compliance mechanisms in relation to 外國入息收取到更多稅款。」 • 信託公司。 qualified accounts. Counsel may also wish to advise China residents with 《管理辦法》規定合資格金融機構(其中後話 foreign financial accounts to make sure 包括)：合資格金融機構的法律顧問會想加緊研究 the information they disclose in relation • 識別賬戶持有人個人或機構(或者控制《管理辦法》的規定，確保機構就合資格 to these accounts matches the CRS 賬戶特設合規機制。他們也可能想向在外 information that will be automatically 人)的稅收居民身份。國開立了金融賬戶的中國居民提供建議， disclosed to the Chinese government. • 識別非居民的金融賬戶。以確保他們就該等金融賬戶所披露的資 • 收集和報送與非居民金融賬戶和賬戶 - Practical Law China 料，就是其他參與者自動向中國政府披露持有人有關的信息。的CRS資料。法律顧問備忘錄 • 保密收集得的資料，並且保留資料至 - Practical Law China 稅務總局與央行發布非居民金少五年。融賬戶盡職調查規定 • 2017年12月31日前登錄國家稅務總局網站辦理註冊登記，並且於每年5月 GC AGENDA 2017年5月9日，多個包括國家稅務總局 31日前報送盡職調查期間收集得的相 (「稅務總局」)在內的金融監管機構與中關資料。 TC 260 Circulates Draft 國人民銀行(「央行」)聯合發布《非居民《管理辦法》亦規定非居民金融賬戶持有 Guidelines on Security 金融賬戶涉稅信息盡職調查管理辦法》人及時、準確、完整地向其金融機構提供 Assessment of Data Exports (「《管理辦法》」)，自2017年7月1日《管理辦法》規定提供的資料。 On 27 May 2017, the National 起施行。 Information Security Standardisation 市場回應《管理辦法》按照經濟合作與發展組織 Technical Committee (“TC 260”) circulated for public comment the (「OECD」)的統一報告標準(「CRS」)制艾•文合夥人，貝克‧麥堅時律師事務所 Guidelines for the Security Assessment of 定，便利中國與各國(地區)每年自動交換北京辦事處 Outbound Data Transmissions (Draft). 金融賬戶信息。「雖然針對的是非居民的金融賬戶，但是 The draft guidelines flesh out the 《管理辦法》不大可能對非居民有重大影《管理辦法》規定下列已在中國註冊登記 Measures on Security Assessments for 響，因為在中國的外匯管制下，非居民在的金融機構，履行非居民金融賬戶涉稅信 the Export of Personal Information and 中國開立金融賬戶的渠道非常有限。已在息盡職調查的程序： Important Data (Draft for Comments) 其他國家或地區開立金融賬戶的中國居民 by establishing the criteria, procedures • 商業銀行。所受的影響要大得多，因為中國政府有向 and standards for carrying out security • 證券公司、期貨公司。居民徵收全球入息稅，而根據多邊主管當 assessments of data exported from China. • 證券投資基金管理公司、私募基金管局協議(「MCAA」)，中國政府會收到由理公司、從事私募基金管理業務的合其他參與者自動提供的相關金融賬戶的資 The draft measures will partially

www.hk-lawyer.org 51 • August 2017

implement the Cybersecurity Law of business in China that transmits data 不只是適用於《2016網絡安全法》規定的 the People’s Republic of China 2016 abroad will want to closely monitor these 關鍵信息基礎設施運營者。如果以現時形 (“2016 Cybersecurity Law”), which developments and work with technology 式制定法例，《指南草案》會大大加重向 requires operators of critical information and government relations colleagues 境外輸出數據的公司的監管負擔。另外， infrastructure (“CII”) to store in China to ensure that the business develops personal information and important and implements effective data security 《指南草案》所包括的其他規定，例如數 business data collected in China and compliance mechanisms. 據接收國家的政治和法律評估，給中國境 prohibits CII operators from transmitting 內在營業務構成更多遵規上的難題。」 this data abroad before passing a - Practical Law China security assessment. 後話法律顧問備忘錄 The draft measures require network 《指南草案》、《辦法草案》及《2016網 operators, which includes all network TC 260對外發布數據出境安絡安全法》適用的其他實施辦法的最終版 owners, managers and service providers, 本，會在不久的將來公布。法律顧問，如 to conduct a security assessment before 全評估指南草案果是為中國境內公司工作，而公司有傳送 exporting personal information and 2017年5月27日，全國信息安全標準化數據到外國的，會想密切關注相關發展， important data. The draft guidelines also 技術委員會(「TC 260」)對外發布《數 expressly apply to all network operators, 並與技術部門同事及負責與政府聯繫的同據出境安全評估指南(草案)》(「《指南 and not just CII operators, and impose 事合作，確保公司發展並實施有效的數據草案》」)，徵求公眾意見。 compliance requirements in relation 安全合規機制。 to data exports under certain specified 《指南草案》充實《個人信息和重要數 circumstances. 據出境安全評估辦法(徵求意見稿)》(「 - Practical Law China The draft guidelines also contain a 《辦法草案》」)的內容，確立進行數據 detailed set of assessment methods and 出境安全評估的各項準則、程序和標準。 criteria for determining if a data export HUMAN RIGHTS adversely impacts personal rights and 《辦法草案》將實施2016年通過的《中 interests, national security or the public 華人民共和國網絡安全法》(「《2016網 New Guidance for Lawyers interest. 絡安全法》」)的部份規定；根據《2016 Advising Clients on Human Market Reaction 網絡安全法》，關鍵信息基礎設施運營者 Rights Risks Jeanette Chan, Partner, Paul, Weiss, 必須把在中國收集的個人信息及重要商業 On 17 July 2017, the International Bar Rifkind, Wharton & Garrison, Hong 數據，存儲在中國境內，並且關鍵信息基 Association Legal Policy and Research Kong 礎設施運營者不得在通過安全評估之前， Unit (“IBA LPRU”) released a Handbook “The draft guidelines, like the draft 傳送這些數據。 for Lawyers on Business and Human measures, extend the data localisation Rights to provide guidance for business requirement to network operators, and 《辦法草案》規定網絡運營者，包括所有 lawyers and their corporate clients on not just to CII operators as stipulated 網絡擁有人、管理人及服務提供者，輸出 how to address human rights risks in under the 2016 Cybersecurity Law. If 個人信息及重要數據之前，必須進行安全 corporate and commercial transactions. enacted in its present form, the draft 評估。《指南草案》亦表明適用於所有網 The Handbook was developed by guidelines would greatly enhance 絡運營者，不只是關鍵信息基礎設施運營 drawing on the expertise and experience the regulatory burden on companies 者，並訂明在某些特定情況輸出數據的合 of a number of different disciplines transferring data out of China. In represented by business lawyers, human 規要求。 addition, other requirements included rights lawyers and experts, businesses, in the draft guidelines, such as political 《指南草案》亦包含一套詳細的評估方法 investors, civil society and academics. and legal assessments of data receiving 和準則，用來決定輸出數據有否對個人權 It contains precedents and substantive countries, pose further compliance 利和利益、國家安全或公眾利益產生不利 guidance on how to address human challenges to businesses operating in rights risks – risks to people – in relation 影響。 China.” to specific legal practice areas: corporate Action Items 市場回應 mergers, acquisitions and restructuring; and commercial contracts, including The final versions of the draft guidelines, 陳劍音合夥人，寶維斯律師事務所香港辦 supply, distribution and franchise the draft measures and other 事處 agreements. implementing measures for the 2016 「就像《辦法草案》一樣，《指南草案》 Cybersecurity Law will be promulgated in IBA LPRU Director, Jane Ellis, stated, the near future. General Counsel for any 把數據本地化的規定延伸至網絡運營者， “There is a significant knowledge gap in

52 www.hk-lawyer.org August 2017 • INDUSTRY INSIGHTS 業界透視

the legal profession despite increasing complex challenges, like how to address centres are located, like Hong Kong, demand for advice and expertise in human rights risks, which require new Singapore and Japan, bar associations business and human rights. To address ways of thinking – and new ways of should draw on the Handbook, the this, we have now developed a unique lawyering. curriculum once completed or develop online handbook, of which the first similar initiatives to ensure that the Nicolas Patrick, partner and Head of two chapters will try to address the knowledge gap in the legal profession Responsible Business at DLA Piper relevance of human rights to commercial is addressed and local lawyers are commented that, “Addressing these transactions and M&A transactions. adequately equipped to advise complex challenges requires more than Through context, case scenarios, businesses. just technical, legal advice and purely discussion exercises, sample checklists legal solutions. If business lawyers are Whether they have a regulatory or and further reading and resources we to retain a competitive advantage in an merely a representational function, bar aim to assist lawyers to understand increasingly globalised marketplace associations must support lawyers to the importance of human rights due they must draw on other disciplines and promote respect for human rights and diligence for contemporary business expertise to advise their clients.” the rule of law, prevent corruption, and the ways in which lawyers (in-house enhance fair competition, encourage and external) can provide advice to Lawyers must understand the critical thought and innovation and companies that is aligned with broader institutional, economic, geopolitical, manage risks to their business clients. risk management and human rights environmental, social and ethical Not least because they are uniquely perspectives.” factors that affect the entire ecosystem positioned to affect change on this front of governance and regulation that can When the author of the United Nations but, and most importantly, they have a and does influence markets, financial Guiding Principles on Business and responsibility to ensure the development systems and business transactions and Human Rights, Professor John Ruggie, of a strong, independent and effective interactions – this includes laws, hard observed that business lawyers were legal profession, which goes hand-in- and soft but also voluntary initiatives, among the most consequential new hand with well-functioning markets, international human rights standards, players in the business and human stable financial systems and enabling and social and moral norms and rights debate, he attributed it to their business environments. expectations. access to and influence with corporate To properly serve their clients’ interests, executives. Five years later, business and To support lawyers respond to the business lawyers must not only human rights is a rapidly expanding area demand from businesses and address understand that the promotion of of law and practice and business lawyers these complex challenges, the IBA business and respect for human rights have a key role to play, not only because LPRU is also developing a curriculum are mutually reinforcing, but be able to of their relationships with corporate and training programme for lawyers on counsel their clients on what this means executives but because the promotion of business and human rights, which will in practice. To make this happen the business and respect for human rights be piloted in Australia, in partnership entire legal profession must be engaged. are mutually reinforcing. with the Law Council of Australia. The IBA LPRU will monitor and assess the Businesses operate alongside the - Daniel D’Ambrosio, DLA Piper programme’s impact and make any continuing expansion of economic necessary changes before making it activity from north and west to south and 人權 available to IBA members. east, the movement of people across and within borders, and rapid developments Bar associations around the world also 新推出關於人權風險的律師 in technology and social media. This have a role to play. Especially those 指引 presents them, and their advisors, with where major business and finance 2017年7月17日，國際大律師公會法律政策及研究組(the International Bar Association Legal Policy and Research Unit，下稱「政策及研究組」)推出一部關於工商企業與人權的手冊(Handbook for Lawyers on Business and Human Rights)，指導工商企律師及其企業客戶如何處理企業及商業交易的人權風險。

該手冊集合工商企律師、人權律師及專家、工商企業、投資者、文明社會及學者

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等的專業知識和經驗編纂而成，包含的律師必須明白機構因素、經濟因素、地理 LEGISLATION 判例和實質指引是關於如何處理人權風因素、環境因素、社會因素及道德因素，險――對人的風險，適用於特定的法律執這些因素都影響整個管治和規管的生態系 Hong Kong Passes Apology 業領域：公司合併、收購及重組；以及商統；這個生態系統能夠影響，也的確影響 Bill 業合約，包括供應協議、分銷協議及專營市場、金融體系、商業交易及互動――這 Hong Kong’s apology legislation, the 權協議。包括法律(硬法和軟法)，還有自願計劃、 first of its kind in Asia, was passed by the Legislative Council on 13 July 2017 and 國際人權標準，以及社會和道德規範與期政策及研究組主管Jane Ellis表示：「雖 was published in the Gazette on 21 July 望。然人們對關於工商企業及人權的法律意 2017. 見及專業知識，需求日增，但法律界這律師得回應工商企業的需求及應對這些 It is the culmination of a comprehensive 方面的知識存在巨大空白。要解決這個複雜的挑戰，政策及研究組為表支持， review of the apology legislation 問題，我們現在編纂了一部獨有的網上亦夥拍澳洲律師會(the Law Council of in various jurisdictions and various academic articles. It seeks to remove 手冊，手冊首兩章針對說明人權與商業 Australia)，共同發展適合律師報讀的工 disincentives in the way of making 交易、收購及合併交易的重大關係。我商企業及人權課程和訓練計劃；課程和訓 apologies, which may have otherwise 們透過背景情況、個案實況、討論活練計劃將以澳洲為試驗地。政策及研究組 prevented disputes from escalating or 動、樣本檢查清單及其他讀物和資源，會監察及評估計劃的影響，作出必要修 assisted in their amicable resolution. 致力協助律師瞭解現代企業人權盡責的改之後，才提供給國際大律師公會成員報 The Apology Ordinance (the 重要性，以及律師(企業律師和外部律師) 讀。 “Ordinance”) will apply to apologies 有多個方法向公司提供符合廣泛風險管 made after the Ordinance comes 全球各地的大律師公會亦發揮一定作用。理及人權觀點的意見。」 into operation irrespective of when 特別是大企業及金融中心所在地，例如香 the related matter arose or when 《聯合國工商企業與人權指導原則》港、新加坡、日本，各地大律師公會都應 the applicable proceedings began. (the United Nations Guiding Principles on 當運用該手冊及課程(通過試驗之後)，或 An “apology” is defined to mean an expression of regret, sympathy or Business and Human Rights)的作者是者發展類似的計劃，以確保法律界知識上 benevolence, and includes an admission John Ruggie教授；他注意到工商企律師的空白消除，本地律師具備足夠資格向工 of fault or liability and any statement 是工商企業與人權討論之中，最具影響力商企業提供意見。 of fact. However, the Ordinance will not 的參與者之一，並將此歸因於工商企律師 apply where the apology is in documents 不論有沒有規管職能或者只有代表職能，有機會接近企業行政人員，對行政人員具 such as pleadings and witness 各大律師公會都必須支持律師，以推動尊有影響力。五年之後，工商企業與人權是 statements submitted in applicable 重人權及法治精神、防止貪污、促進公平 proceedings, where it is orally given 快速擴展的法律和業務領域，工商企律師競爭、鼓勵批判性思維及發揮創意，並為 at a hearing, or where it is adduced as 在當中發揮重要作用，究其原因，不只是工商企客戶管理風險。其中一個重要的原 evidence by or with the consent of the 因為他們與企業行政人員建立了關係，也 apology maker. 因，是他們處於獨特地位，能夠影響這方因為推廣業務和尊重人權是相輔相成的。面的改變，而最重要的是，他們有責任確 The three main areas of the Ordinance are: 工商企業運作的同時，經濟活動持續由北保法律專業穩固、獨立，並且有效地發向南也由西向東擴展，人口跨區遷移也在展，與運作良好的市場、穩定的金融體系 1. Effect and Admissibility of an 區內流動，科技及社交媒體亦速迅發展。及便利化的營商環境互有聯繫。 Apology in Applicable Proceedings 這給工商企業及其顧問帶來複雜的挑戰， For the purpose of applicable 要妥善地為客戶提供符合他們利益的服例如如何處理人權風險；這方面需要新的 proceedings, an apology will not 務，工商企律師不單只要明白推廣業務和 constitute an admission of fault or 思維方式――還有新式的律師服務。尊重人權是相輔相成的，也必須有能力就 liability and must not be taken into 歐華律師事務所合夥人及負責任工商企業當中的實際意思向客戶提供意見。要這一 account in the determination of fault, 部主管Nicolas Patrick評論說：「應對這切成事，法律界全體上下都必須參與其 liability or other issues to the prejudice of the apology maker. Evidence of 些複雜挑戰所需要的，不只是技術、法律中。 the apology will not be admissible as 意見及純粹法律解決方案。工商企律師如 - Daniel D'Ambrosio， evidence for such determination. 果要在日漸全球化的市場保住競爭優勢，歐華律師事務所 The reason for such protection is that 一定要運用其他規章制度及專業知識，以 previously there was no assurance under 向客戶提供意見。」 Hong Kong law that an apology could

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not be relied on as evidence of admission admission of fault may be relied on 《條例》有三大範疇： of fault or liability, and this inhibited to repudiate liability. The Ordinance people from making apologies. provides assurance by stipulating that 1. 道歉在適用程序的效果及可接納性 insurance cover, compensation or However, a decision maker will have 就適用程序而言，道歉不會構成承認過失 other form of benefit under a contract discretion to admit a statement of fact 或法律責任；裁斷過失、法律責任或任何 of insurance or indemnity (whenever contained in an apology as evidence in 其他爭議事項時，不得列為不利於道歉者 entered into) will not be voided or exceptional cases (eg, where no other 的考慮因素。道歉證據將不會為裁斷上述 otherwise affected by an apology. evidence is available), provided it is just 事項而被接納為證據。 and equitable. - Damien Laracy, Partner, and 這種保護源於香港法律以往沒有任何保 The Ordinance will apply to judicial, Fontaine Lai, Associate, Hill arbitral, administrative, disciplinary Dickinson 證，沒有人可以依靠道歉作為承認過失或 and regulatory proceedings and other 法律責任的證據；這樣會妨礙人作出道 proceedings conducted under an 立法歉。 enactment; disciplinary proceedings include proceedings of professional 香港通過《道歉條例草案》然而，裁斷者將具有酌情權，可在例外情況中(例如得不到其他證據)接納道歉所包 institutes and statutory bodies and 香港的道歉法例――亞洲區最早的同類 disciplinary proceedings by way of non- 含的事實陳述為證據，只要此舉屬公正、法例――2017年7月13日獲立法會通 statutory self-regulation by industry 公平就行了。 bodies. The Ordinance will not apply to 過，2017年7月21日刊憲。《條例》將適用於司法、仲裁、行政、紀 criminal proceedings, proceedings of 這是全面審閱不同司法管轄區的道歉法 the Legislative Council and proceedings 律處分及規管性程序，以及其他根據成文例及許多學術文章之後的結果。道歉 conducted under the Commissions 法則進行的程序：紀律處分程序包括專業有可能防止爭議升級或有助達成友善和 of Inquiry Ordinance, the Control of 機構及法定團體的程序，以及行業團體藉 Obscene and Indecent Articles Ordinance 解，而制定道歉法例的目的，就是消除並非法定的自律規管方式進行的紀律處 and the Coroners Ordinance. 窒礙道歉的障礙。分程序。《條例》將不適用於刑事程序、 The Ordinance will not affect discovery 《道歉條例》(「《條例》」)將適用於立法會程序及根據《調查委員會條例》、 or similar procedures in applicable 《條例》實施之後作出的道歉，不管相 proceedings, the operation of provisions 《淫褻及不雅物品管制條例》及《死因裁關事宜何時產生，適用程序何時開始。 of the Defamation Ordinance dealing 判官條例》進行的程序。 with permission to put in evidence an 「道歉」被界定為表達歉意、懊悔、遺《條例》將不會影響適用程序的文件透露 apology as a defence or in mitigation 憾、同情或善意，包括承認過失或法律或其他類似程序，以及《調解條例》的施 of damages, and the operation of the 責任，以及任何事實陳述。然而，《條行；《誹謗條例》載有條文批准以道歉作 Mediation Ordinance. 例》將不適用於在文件作出的道歉，例為抗辯或減低損害賠償的證據，《條例》 2. Apology not an Acknowledgment 如在適用程序提交的狀書及證人陳述書亦將不影響此等條文的施行。 under the Limitation Ordinance 中作出的道歉，也不適用於在聆訊時口 Under s. 23 of the Limitation Ordinance, 頭作出的道歉，或者被道歉者援引為證 2. 道歉不是《時效條例》所指的承認 certain rights of action relating to 據的道歉，或者在道歉者同意下被援引根據《時效條例》第23條，某些關於土 land, personal property, debts, other 的道歉。地、非土地財產、債項，以及其他算定金 liquidated pecuniary claim or personal estate are deemed to accrue on the date of acknowledgment. The Ordinance will provide assurance that an apology does not constitute an acknowledgment within the meaning of the Limitation Ordinance, and the relevant limitation period will not be extended thereby.

3. Contract of Insurance or Indemnity not Affected There were previously fears that clauses in insurance contracts that prohibit

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額的申索或可動產業的訴訟權，被當作於作出承認那一天產生。

《條例》將保證道歉不構成《時效條例》的「承認」所包含的意思，並且相關的時效期將不會因此延長。

3. 保險或彌償合約不受影響過往叫人擔憂的是，可能有人會以保險合約禁止承認過失的條款為依據，拒絕承認法律責任。《條例》提供保證，訂明根據 Marshall. In the case of applications a leading online game developer based 保證或彌償合約(不論何時訂立)可得到的 before the trial judge rather than the in Shanghai that became embroiled Court of Appeal, the Ladd v Marshall in litigation with former shareholders 保險保障、補償或其他形式的利益，將不 factors should be applied more following a take private merger that 會無效或在其他情況下受到相關人士的道 leniently. Other “powerful factors” resulted in the company being delisted 歉所影響。 in the applicant’s favour would be from the NASDAQ. There has been a needed to justify the application. significant upward trend in litigation - 戴偉誠合夥人及黎庭瑋助理律師， by shareholders of Cayman Islands Hill Dickinson • In the present case the summons to re-open was issued shortly before incorporated companies who dissent the draft judgment was received from take private mergers of listed PRC by counsel, however, the Learned companies and ask the Grand Court of OFFSHORE Judge had completed the draft the Cayman Islands to determine the judgment and reached a decision “fair value” of their shares. Re-Opening a Trial with on the petition. The handing down - Ian Mann and Joanne Verbiesen, of a judgment in draft does not Further Evidence in the Harneys of itself preclude the granting of Cayman Islands the application or determine how * Citing the Supreme Court in L-B (Children) In the recent case of In the matter of the Court should exercise the (Care Proceedings: Power to Revise Shanda Games Limited, FSD 14 OF 2016 jurisdiction. Once the judgment has Judgment) [2013] UKSC 8, [2013] 1 WLR 634; (NSJ) (July 2017) it was held by Justice been handed down then a further Charlesworth v Relay Roads Ltd [2000] 1 WLR 230; Vringo Infrastructure Inc v ZTE (UK) Ltd Segal that the Court has jurisdiction to issue arises, namely the question [2015] EWHC 214; and Malitskiy v Stockman admit new evidence and order a further of reconsideration and the impact Interhold SA BVIHC 2015/0008 hearing (and thereby re-open the trial) of depriving a successful party of a after the trial and after the Court has judgment already rendered needed to 離岸 handed down its judgment in draft, be taking into account when the Court before the sealing of the Court’s order is applying the overriding objective. 在開曼群島提出新證據並要求 (any appeal would be against the order • In order to justify re-opening the trial 重開審訊 of the Court and not the judgment). and allowing further expert evidence However, in the circumstances, the to be introduced the Petitioner must 在最近一宗關於Shanda Games Limited的 Learned Judge declined to do so. show (in the absence of fraud) that 案件(訟案編號FSD 14 OF 2016 (NSJ) the problems with the expert witness The test to be applied in the Cayman (2017年7月))中， Segal法官裁定在審訊 Islands is*: evidence are sufficiently serious such 之後，法庭仍有司法管轄權在法庭宣布 that the Court’s decision cannot • The principle to be applied generally stand. 判決草稿之後，法庭命令蓋印之前，接 is the overriding objective to deal 納新證據並命令再進行聆訊(因此重開審 with cases justly and at proportionate Conclusion 訊，而任何上訴只會是針對法庭命令而 cost. This involves dealing with cases This decision from the Grand Court of expeditiously and fairly and allocating the Cayman Islands will be of particular 不是判決提出)。不過在這宗案件的情況 an appropriate share of the Court’s relevance to Hong Kong practitioners 下，Segal法官拒絕這樣做。 resources to a dispute. advising Cayman Island incorporated 在開曼群島應用的測試＊： • In cases involving an application to companies, as these companies are call new evidence and have a new potentially exposed to litigation in the • 在一般情況下，運用的原則以公平處理 trial, the Court should take into Cayman Islands courts. The company in 案件及訟費按比例計算為首要目的。這 account the leading case of Ladd v this case, Shanda Games Limited, is itself

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需要快捷、公平地處理案件，並且恰當 PRIVATE EQUITY owned enterprise (“SOE“). Acquisitions 地分配法庭資源到各個爭議。 by SOEs, with links to government departments, are less likely to be • 在案件涉及傳喚新的證據及重開審訊的 Selling to China: Four Key hindered by the rule-tightening. Deals 申請時，法庭應考慮Ladd v Marshall這 Questions All Private Equity Deal Teams Should Ask on worth less than US$300 million should 宗先導案例。在原審法官席前而不是在 also be safe, as smaller deals have a 上訴法庭申請的案件中，應較為寬鬆地 an Exit streamlined approval process. Overseas 引用在Ladd v Marshall考慮的因素。申 Chinese acquirers are playing an subsidiaries of Chinese parents with 請人還需要其他有利的「有力因素」 increasingly important role as buyers sufficient assets and financing capacities, offshore Chinese heritage companies (powerful factors)作為支持其申請的理 of private equity sponsored companies — nearly 200 portfolio companies and US$ funds managed by PRC based 由。 were sold to Chinese entities in 2016. firms will generally not be affected. • 在這宗案件，要求重開審訊的傳票是在 However, in our view, measures taken Where Is the Money Coming From? 大律師收到判決草稿不久前發出的，但 by the Chinese government to scrutinise Chinese investors typically raise all or Segal法官當時已經完成判決草稿並就 transaction fundamentals more closely a portion of the purchase price within 呈請作了決定。法官已經宣布判決草稿 and slow capital outflows have impacted deals. The number of deals completed China, whether on balance sheet, via an 內容，但此舉本身並不阻止他批准申請 so far in 2017 has fallen to 63, compared existing or new bank facility, through a 或決定法庭應如何行使司法管轄權。法 to 109 at the same point last year. With private placement of equity and/or from 庭只要實行首要的目的，其他在判決宣 Chinese deals now facing higher abort co-investors. The People’s Bank of China 布後才出現的爭議點，即是重新考慮的 risks, we consider what buyout firms (“PBOC”) and the State Administration 問題及剝奪勝訴方已得的判決的影響， must know and do in order to achieve a of Foreign Exchange (“SAFE”) have directed Chinese banks to more closely 就需要重新被列為考慮因素。 successful exit. monitor any remittance of funds, and • 為了支持重新審訊並准許加入其他專家 Why Do the Deal? banks have slowed FX remittance out of 證據，呈請人必須證明(在沒有欺詐的 Chinese regulators are focusing on the China. Banks are also under pressure to 情況下)有專家證人作供證明的是嚴重 authenticity and commercial purpose scale back their provision of cross-border security and onshore deposit-backed 的問題，足以令法庭的裁決不能成立。 of deals by Chinese companies. Acquisitions with a solid rationale offshore lending. 結論 that benefit the Chinese economy are Deal teams should seek, at an early 這項由開曼群島大法院(the Grand Court) unlikely to be rejected outright. So-called stage, to ascertain the sources of funds. 作出的決定，將會特別關係到向開曼群島 “irrational” deals (outside of a Chinese Buyout firms may prefer to deal with an buyer’s core sector, particularly in the 公司提供意見的香港律師，因為這些公司 offshore entity affiliated with a Chinese real estate, media, sports or hospitality 有可能面對在開曼群島法庭展開的訴訟。 buyer, which holds cash overseas (either sectors) will face greater regulatory in escrow or with a supporting standby 涉案公司Shanda Games Limited是美國納 hurdles. Private equity firms and their letter of credit for the purchase and 斯達克證券交易市場上市公司，總部設在 advisers need to factor this into any break fee costs) and is able to sidestep 上海，本身是領先的網絡遊戲開發商，公 approach from a Chinese buyer. FX difficulties. 司被私有合併而從納斯達克退市之後，捲 Who Is the Buyer? How Long Will the Deal Take? 入由前股東提起的訴訟之中。在開曼群島 Deal teams need to understand whether Deal teams and Chinese buyers should 註冊成立並已上市的中國公司之中，明顯 they are dealing with a private company, engage early in deal timetable planning 有越來越多不滿公司被私有合併的股東提 a publicly listed company or a state as Chinese buyers must file a significant 出訴訟，要求開曼群島大法院決定其股份的「公允值」。

- Ian Mann及Joanne Verbiesen，衡力斯法律事務所

* 引述自L-B (Children) (Care Proceedings: Power to Revise Judgment) [2013] UKSC 8 ；Charlesworth v Relay Roads Ltd [2000] 1 WLR 230；Vringo Infrastructure Inc v ZTE (UK) Ltd [2015] EWHC 214；Malitskiy v Stockman Interhold SA BVIHC 2015/0008

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amount of information, which will take 為甚麼要進行交易？ • ≥100億美元的交易 time to prepare. Work on obtaining 中國監管機構的調查重點是中資進行交易 • 涉及海外目標資產、≥10億美元的交易 state approvals should begin as quickly 的真確性和商業目的。有實質理據支持並 as possible, even if on a no-names • 與中資買家核心業務無關的交易 basis. 對中國經濟有利的交易碰壁的可能性不 • 對海外上市公司進行少數股權投資的大，而所謂的「沒有理據」支持的交易(不交易 What has Changed? 屬於中資買家核心業務，尤其是房地產、中資買家現在需要做的事： Certain transactions will not benefit 媒體、體育或酒店業務)面對的監管障礙將 from streamlined filing processes, 會更大。私募股權基金公司及其顧問考慮 •向國家發展和改革委員會提供更多資料 including: 中資買家的收購建議時，需要考慮這項因 (例如財務報表、資金來源與收購目標 • Transactions of ≥ US$10 billion; 素。盡職調查報告)。 • Transactions of ≥ US$1 billion; •與中國人民銀行或國家外匯管理局進行 involving overseas targets; 買家是誰？監管會面。在中資銀行開始處理交易 • unrelated to the Chinese buyer’s 交易團隊需要瞭解與其進行交易的是私人之前，國家外匯管理局定必審查涉及 core business; and 公司、上市公司還是國有企業(國企)。與政外匯購買、外滙付款或資金出境超過 • Outbound minority investments in 府部門有關係的國企所進行的收購，因為 500萬美元的交易的真確性和合規性。 overseas listed companies. 被嚴查而受阻的可能性較低。規模較小的 Chinese buyers now need to: - 孫秋寧合夥人，瑞生國際律師事務所交易審批程序簡易，所以金額少於3億美元香港辦事處 • Provide more information to 的交易理應穩妥。資產充裕並具有融資能 the National Development and 力的中資母企的海外附屬公司、中國背景 Reform Commission (eg, financial 的離岸公司及由中國公司管理的美元基金 statements, sources of funding and PROFESSIONS target due diligence reports); and 普遍不受影響。 Accountants: Restraining • Conduct supervisory interviews with 資金從哪裡而來？ the PBOC or SAFE. Before a Chinese Publication of a Reprimand bank can process the transaction, 中國投資者一般會在中國境內籌集全部或 Pending Appeal 部分收購資金，方法包括動用公司內部資 SAFE must review the authenticity In Registrar of Hong Kong Institute of and compliance of transactions 源、現有或新造銀行融資、私人配股及∕ Certified Public Accountants v X, CACV involving the purchase of foreign 或尋找共同投資者等。中國人民銀行及國 244/2016, 2 June 2017, the respondent currency, payment of foreign 家外匯管理局已指示中資銀行加緊監察 accountants are appealing a decision exchange or outward remittance of of a Disciplinary Committee that they funds over US$5 million. 匯款情況，各家銀行相繼減慢外匯資金出境。銀行亦受到官方要求減少跨境抵押和 failed to apply a technical standard in the audit of a listed company; in particular, - Frank Sun, Partner, Latham & 境內存款擔保境外貸款的壓力。 Watkins (Hong Kong) regarding the company’s treatment of 交易團隊應在交易進行初期設法確定資金 the fair value of shares in its financial 私募股權來源。收購公司偏愛的交易方可能是在海 statements. At the time of writing, the 外持有現金(是託管的或者以備用信用函支 appeal is due to be heard on 20–21 向中資機構出售資產：私募 September 2017. 股權交易團隊應當問的四個持收購和終止費)的、與中資買家是聯屬公司的，並且有辦法解決資金出境問題的離 As a result of the Disciplinary 大問題 Committee’s decision the accountants 岸公司。中資機構在私募股權發起公司收購交 were ordered to be reprimanded and to pay a penalty and the HKICPA’s costs. 易中的角色日益重要――2016年有近交易需時多長？ As is usual, the disciplinary proceedings 200家投資組合公司是出售給中資的。由於中資買家需要時間準備大量必須要提 were held in public. In accordance with 交的資料，交易團隊和中資買家應一早計但我們認為，中國政府加緊嚴查交易及 the HKICPA’s prevailing policy, the 減慢資金流出的措施對交易量造成了影劃交易時間表，並儘早向國家申請批准， Disciplinary Committee saw no reason to 響。2017年至今已經完成的交易數量即便是以匿名方式進行。 prohibit publication of its decision on the HKICPA’s website. 減少至63宗，去年同期有109宗。目前有甚麼改變了？涉及中資的交易面對較高的中止風險， Given the appeal and the irreversible 某些交易將不會受惠於簡易的存檔程序，我們在下文列出收購公司成功完成交易 effect once a reprimand is made public, 包括：所必須知道和必須做的事。 the accountants applied for an order

58 www.hk-lawyer.org August 2017 • INDUSTRY INSIGHTS 業界透視

員會按照香港會計師公會現行政策去理解，看不出為何被禁止在香港會計師公會網站刊登其決定。

由於已經上訴，並且譴責之事一旦向外公布，後果不可逆轉，兩名會計師申請命令，要求禁止刊登紀律委員會的決定，直到上訴有最終裁定為止(CACV 244/2016 ，2017年6月2日)。

《專業會計師條例》(第50章)(「《條例》」)第38(2)條規定(其中包括)，在上訴有最終裁定之前，註冊主任不得記入有關處罰(包括「將譴責……記入」)。第 The outcome of the appeal (to date) that publication of the Disciplinary 38(2)條沒有「刊登」二字。 Committee’s decision be restrained until has meant a significant costs liability for final determination of the appeal (CACV the regulator (CACV 244/2016, 21 June 儘管如此，上訴法庭闡釋《條例》第 244/2016, 2 June 2017). 2017). It also illustrates the point that 38(2)條，指該條的意思是，在上訴待決 members of professional bodies usually Section 38(2) of the Professional 期間，處罰實質上並不生效(判決書第41 take their professional reputations very Accountants Ordinance (Cap. 50) 段)。由於譴責一事要向外公布，才能達 seriously. It is one thing to make a finding provides that (among other things) of error with regard to the application 到最大的效果，所以立法的用意必定是， the Registrar shall not record the of a highly technical standard and quite 此事不應被記入公會的註冊紀錄冊內或者 relevant sanctions (including, “record a another to publish a reprimand against a 向外公布，直到上訴有最終裁定為止。 reprimand”) before an appeal has been professional person. In many instances of finally determined. It makes no mention 就會計師被指稱在技術上違反應用專業 less serious infractions some regulatory of “publication”. bodies are tougher on their members 準則的規定(特別是與上市公司財務報表 Nevertheless, the Court of Appeal than the public interest requires or than 的審核意見有關的規定)所進行的紀律程 interpreted s. 38(2) of the Ordinance to is deserved. 序，並不是甚麼新鮮事(見2017年6月 mean that none of the sanctions were to 《業界透視》)。雖然紀律程序具有公共 - David Smyth, Partner, RPC take effect “in a substantive way pending 性質，但進行程序之後可以作出的處罰 appeal” (para. 41 of the judgment). 並不是一定要向外公布的。在Registrar Therefore, given that the reprimand is 專業導論 of HKICPA v Wong & Anor(CACV given full effect by making it public the 會計師：禁止在上訴待決期間 legislative intent must have been that it 233/2015)，紀律委員會指示，除非兩 should not be recorded in the Institute’s 刊登譴責的決定名答辯人同意，否則紀律委員會的處罰不 register or made public until the appeal Registrar of Hong Kong Institute of 會向外公布；比較兩宗案件的異同是有件 is finally determined. Certified Public Accountants v X(CACV 有趣的事。 Disciplinary proceedings concerning 244/2016，2017年6月2日)的兩名答辯上訴(到目前為止的)帶給監管機構的， alleged technical breaches of the 人是會計師，他們不服紀律委員會的決是沉重的訟費責任(CACV 244/2016 application of a professional standard 定，正在上訴。此前，紀律委員會裁定他 (particularly, as regards audit opinions ，2017年6月21日)。這亦說明一點：專 of the financial statements of listed 們在某間上市公司的審計工作，特別是與業團體的會員通常十分着緊自己的專業聲 companies) are nothing new (see, 該公司在財務報表對股份公平值的處理方譽。在高技術準則的應用上發現錯處是一 Industry Insights, June 2017). Despite 法有關的工作，未有應用某項技術準則。回事，向外公布某專業人士被譴責則完全 the public nature of the disciplinary 本文撰寫時，上訴聆訊預定在2017年9 是另一回事。在許多較不嚴重的違法事件 proceedings, the sanctions that may 月20–21日進行。之中，某些監管機構對其會員有嚴格的要 follow do not have to be made public. 求，比較因著公眾利益而要求的或者會員 It is interesting to compare Registrar of 紀律委員會因為這項決定作出命令，根據 HKICPA v Wong & Anor, CACV 233/2015, 命令，兩名會計師會被譴責並須支付罰款應該被要求的，過之而無不及。 where the Disciplinary Committee 及香港會計師公會的訟費。按照一般做 - 施德偉合夥人，RPC directed that there be no publicity of its 法，涉案紀律程序是公開進行的。紀律委 sanction unless the respondents agreed.

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PROFESSIONS on their fitness and probity. 議通知書，要求法院認許他為香港高等法 Cases such as these demonstrate the 院的大律師並予以登記，律政司司長對此 “Fit and Proper” to be tension between safeguarding the public 不表同意，所持看法與大律師公會的並不 Admitted as a Barrister interest and making some allowance 一樣。法院也不同意。 Re A, HCMP 2079/2016, 16 June 2017, for past human frailty. It cannot be that 這宗案件有多個有趣的地方。 considers what it means to be “fit and every conviction resulting in a custodial proper” in the context of an application sentence necessarily disqualifies an 這是個罕有的例子，極少有人根據《法 for admission to the Hong Kong Bar. applicant from becoming a lawyer. 律執業者條例》(第159章)第27(1)條申 Some readers might draw a distinction The applicant is a young man who had 請認許(不是根據第27(4)條以專案性質認 between (for example) offences involving been convicted (when a student) of an certain types of assault or public disorder 許海外大律師)是會受到爭議的。特別的 offence before the Magistrates court. and offences of a more serious nature or 是，兩方都說不出任何舊有例子是申請人 The offence appears to have involved involving dishonesty. 根據第27(1)條申請認許，而大律師公會 some serious circumstances, for which 與律政司司長對認許申請的看法並不一樣 the applicant received a short custodial The case also raises the issue of the sentence in 2010. degree of disclosure required of an 的。 applicant to a regulator, both with regard After working in another profession for a 案件亦另有用處，就是歸納了某些決定申 to the offence itself and any disciplinary while, the applicant turned his hand to proceedings that may follow it. 請人是否法院所認許適當作為大律師的人 law and eventually became a bar pupil. 時用得上的一般法律原則。雖然事實不 The applicant disclosed his conviction - Warren Ganesh and David Kwok, RPC 同，情況各異，但是這些一般原則可以廣 (and certain other relevant details) with 泛應用到其他只收納適合及廉潔的人為會 his certificate for eligibility. He was later 專業導論 granted a certificate of qualification 員的專業界別。 for admission by the Bar Council. 認許「適當」的人為大律師這類案件顯示一個情況，就是保障公眾利 However, unlike the Bar Association, the 益與原諒申請人過往過失是有矛盾的。不 Secretary for Justice did not consent to Re A案(HCMP 2079/2016，2017年6月 the applicant’s Notice of Motion to be 16日)是一宗關於某人申請認許作為香港是每名罪名成立而被判監禁的人都定必 admitted and enrolled as a barrister of 大律師的案件，法庭在案中以認許申請作會失去成為律師的資格。可能會有讀者指 the High Court of Hong Kong. Neither 為背景來考慮「適當」一詞的意思。出，(譬如說)涉及某種襲擊或擾亂公共秩 did the court. 序的罪行有別於與性質較嚴重或有人不誠申請人是一名年青人，他2010年(當時是 The case is interesting in a number of 實的罪行，兩者不能一概而論。學生)在裁判法院席前被定罪。申請人所 respects. 犯罪行似乎涉及一些嚴重情節；他因為所案件亦帶出一個爭論點，就是申請人 It is a rare example of a contested 犯的罪行被判短期監禁。要在多大程度上向監管機構披露所犯 application for admission pursuant 罪行及任何隨之而來的紀律程序。 to s. 27(1) of the Legal Practitioners 申請人在另一專門行業工作了一段時間之 Ordinance (Cap. 159) (as opposed to 後修讀法律，最後成為見習大律師。他申 - 莊偉倫及郭文龍，RPC ad hoc admission of overseas counsel 請資格證明書的時候，向香港大律師公會 pursuant to s. 27(4)). In particular, the parties were unable to refer to any 執行委員會披露自己曾被定罪(及若干其 previous application for admission 他有關細節)。執行委員會其後發給他認 pursuant to s. 27(1) where the Bar 許資格證明書。數個月後，申請人提交動 Association and the Secretary for Justice had reached different views on an Feel free to write in to us with more short contributions on latest industry developments applicant’s admission. and trends. Simply contact the editor at: [email protected] The case is also a useful summary of 本刊歡迎各位提交短篇文章，廣大讀者分享業界的最新發展和動態。請與本刊編輯聯絡。 some of the general legal principles 電郵：[email protected] relevant to the determination of whether an applicant is fit and proper The information provided here is intended to give general information only. It is not a complete statement of the law. It is not intended to be relied upon or to be a substitute for legal advice in relation to particular to be admitted as a barrister. While circumstances. fact sensitive, these general principles may have a wider application to other 本欄所提供的資訊僅屬一般資訊，並不構成相關法律的完整陳述，亦不應被依賴為任何個案 professions that admit members based 中的法律意見或被視作取代法律意見。

60 www.hk-lawyer.org August 2017 • CASES IN BRIEF 案例撮要

CASES IN BRIEF 案例撮要

ADMIRALTY solicitors (“S“) received instructions from time limit. It did not override the some 22 additional claimants overseas s. 7(1) limitation period so that the Eleni Maritime Ltd v Heung-A Shipping including from the PRC and Vietnam defence of time bar was unavailable Co Ltd [2017] HKEC 931 (“Cs“) in respect of further claims against to a defendant. The fact that the P. On 6 November 2015, one day before administrative deadline expired before Court of First Instance the expiry of the s. 7(1) limitation period, the statutory limitation period was Admiralty Action No. 189 of 2013 D2–4 and Cs filed protective writs of alone a good reason for granting an Deputy Judge Anthony To in Chambers summons against P. On 14 October 2016, extension of time under the decree. 9 May 2017 S sought an extension of the deadline • If, as here, a claimant had commenced under the Decree for D2–4 and Cs to file an action against the shipowner Maritime claims – limitation claims against the Fund. D1 objected, within the statutory time limit, but decree – extension of deadline arguing that Cs’ claim against the Fund filed his claim in the reference after under decree for additional was statute-barred under s. 7(1) of the the administrative deadline expired, claimants to file claims against Ordinance, as “an action” to enforce a leave to extend that deadline was limitation fund – whether claims claim or lien in s. 7 did not involve only required and, subject to showing time-barred under s. 7(1) – the issue of a writ but included the filing good reasons for the delay and lack whether claim “action” within of a claim pursuant to a decree in the of prejudice to other claimants, such meaning of s. 7(1) reference to the Registrar for decision leave invariably would be granted. under O. 75 r. 41 of the Rules of the High After a collision with P’s vessel (The Eleni) Court (Cap. 4A) (the “RHC”). Under 海事法 in Vietnamese waters on 7 November Art. 13(1) of the 1976 Convention, any person having made a claim against 2013, D1’s vessel (The Heung-A Dragon) Eleni Maritime Ltd v Heung-A sank with all its cargo. P admitted a limitation fund shall be barred from Shipping Co Ltd [2017] HKEC 931 and agreed liability with D1 at 70:30 claiming against any other assets of a respectively. P brought a limitation action person by or on behalf of which the fund 原訟法庭 against D1 and three other potential had been constituted. 高院海事訴訟2013年第189號 claimants (D2–4). On 14 May 2014, P Held, granting leave to D2–4 to file their 原訟法庭暫委法官杜溎峰內庭聆訊 obtained a decree of limitation under claims in the reference to the Registrar 2017年5月9日 the Merchant Shipping (Limitation out of time, that: of Shipowners Liability) Ordinance 海事索償 — 限制責任判令 — 延 (Cap. 434) which applied the Convention • An “action” in s. 7(1) of the Ordinance on Limitation of Liability for Maritime meant an action to enforce any claim 展判令下的期限，讓額外申索人 Claims 1976 (the “1976 Convention”) (the or lien against a vessel or its owners. 向限制責任基金提出申索 — 申索 “Decree”), P constituted the limitation On the constitution of the limitation 是否根據第7(1)條逾時失效 — 申 fund (the “Fund”). In mid-2015, well fund, the vessel was released and the maritime lien for collision damage 索是否屬於第7(1)條所指的「訴 after the expiry of the extended final 訟」 — 《商船(碰撞損害法律責任 deadline of 28 January 2015 under the ceased to exist. Thus, the reference to Decree for filing claims, but about six the Registrar in which Cs sought to 及救助)條例》(第508章)第7(1)條 months before the expiry of the two-year participate was not an action within 2013年11月7日，P的船隻(The Eleni)與 limitation period under s. 7(1) of Merchant s. 7(1), but an action against the Fund Shipping (Collision Damage Liability and thus, the s. 7(1) time bar did not D1的船隻(The Heung-A Dragon)在越南水 and Salvage) Ordinance (Cap. 508) (the apply. 域相撞，導致後者和其所有載貨沉沒。P “Ordinance”) for claiming damages • The deadline under a limitation decree 承認法律責任，並與D1同意按70:30比例 arising out of a collision at sea, D2–4’s was a procedural and administrative 分擔責任。P向D1及另外三名潛在申索人(

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下稱D2-4)提出限制責任訴訟，並於2014 何申索或留置權而提出的訴訟。限制 framework. While P was walking on the 年5月14日獲頒《商船(限制船東責任)條責任基金設立後，船隻獲放行，而關 top of that structure in order to deliver a 例》(第434章)下的限制責任判令(下稱「乎相撞後損害的海事留置權不再存 bucket of cement from the place where cement was being mixed to workers at 涉案判令」)。該條例引用《1976年海事在。因此，Cs尋求參與的轉交司法 the external wall on the other side of the 索賠責任限制公約》(下稱「《1976年公常務官個案並非第7(1)條所指的「訴 building, he fell through the top of the 約》」)。P設立限制責任基金(下稱「涉案訟」，但屬於針對涉案基金的訴訟， structure onto the floor of the structure 基金」)。2015年中旬(當時已遠遠超越涉因此第7(1)條下的時效限制並不適 about 2.5 m below, suffering injuries to 案判令下可提出申索的經延展最後期限，用。 his left foot and ankle and his lower back. His claim against Ds was settled in the 即2015年1月28日，但距離《商船(碰撞 • 限制責任判令下的時限，乃屬程序和 sum of HK$960,000 inclusive of interest. 損害法律責任及救助)條例》(第508章)(下行政性質的限制。它並不凌駕第7(1) Then Ds’ claim against TPs came before 稱「《條例》」)第7(1)條下就海上碰撞追條下的時效期限，以致被告人無法訴 a Recorder for determination. That claim 討損害賠償而訂明的兩年起訴時限屆滿之諸「逾時失效」抗辯理由。行政期限 was dismissed because the Recorder took 日尚餘約六個月)，D2-4的代表律師(下稱比法定時效期限更早屆滿，本身已是 the view that the defaults of TPs was not factually causative of P’s injuries. One day S)接獲另外約22名來自中國、越南等海外良好理由以支持延展判令下的時限。地區的申索人(以下統稱Cs)的指示，尋求 out of time, Ds filed a notice of appeal • 假如像本案般，申索人已在法定時效 against the Recorder’s order. 向P提出申索。2015年11月6日(即上述第期限內針對船東提起訴訟，但在行政 7(1)條下的起訴時限屆滿前一日)，D2-4 Held, granting Ds leave to appeal out 期限屆滿後才提出申索以轉交司法常及Cs把針對P的防護性傳訊令狀送交存 of time and allowing the appeal so as 務官，則申索人須申請許可延展該期 to order that TPs pay Ds 25 percent of 檔。2016年10月14日，S申請延展涉案限，而只要能就延誤提供良好理由和 the judgment for HK$960,000 inclusive 判令下的期限，以便D2-4及Cs向涉案基證明沒有令其他申索人蒙受不利，法 of interest entered for P against Ds by 金提出申索。D1反對該申請，辯稱Cs針 consent, that: 庭將例必批予許可。對涉案基金的申索根據第7(1)條已逾時失 • The reason for the delay was that 效，因為在第7條下，為強制執行申索或 after obtaining counsel’s advice, Ds’ 留置權而提出的「訴訟」除了涉及發出令 solicitors were only able to obtain 狀外，亦包括根據判令提出申索，並根據 CIVIL PROCEDURE confirmation of Ds’ instructions to 《高等法院規則》(第4章，附屬法例A)第 appeal one day after the time for Chen Qingqiang v Chan Yat Hong appealing had expired. The delay was 75號命令第41條規則將該申索轉交司法 [2017] HKEC 913 only of one day, and was excusable 常務官作決定。《1976年公約》第13(1) Court of Appeal in the overall circumstances. More 條訂明，任何人如已向限制責任基金提出 Miscellaneous Proceedings No. 3430 of importantly, the appeal must succeed 申索，即不得針對設立該基金由或代為設 2016 & Civil Appeal No 90 of 2017 if brought so that it would be unjust 立該基金的人的任何其他資產提出申索。 Lam V-P, Poon JA and Mimmie Chan J not to extend time for bringing it. Lastly, there was no prejudice to TPs 8 May 2017 裁決 — 准許D2-4逾時提出申索以轉交司 in granting the extension. 法常務官﹕ Appeal – leave to appeal out of • According to TPs’ breaches admitted • 《條例》第7(1)條下的「訴訟」，乃 time – claim against third parties under the deeming provision in 指為強制執行針對船隻或其船主的任 to contribute to damages suffered O. 16 r. 5 of the Rules of the High by injured plaintiff – whether Court (Cap. 4A, Sub. Leg.), they extension of time to be granted had, in breach of their duty of care at common law and imposed by s. 3 P was a general worker engaged in of the Occupiers Liability Ordinance renovation works to a building at (Cap. 314) exposed P to a risk of injury Nos 5–11 Un Chau St in respect of which of which they knew or ought to have D2 was the principal contractor and P’s known. Their conduct must have employer, D1, was the subcontractor been causative of P’s injuries. There responsible for the renovations to the was a factual dispute as to whether external walls. As for the third parties there was an alternative route which (“TPs”), they were the registered owners P could have taken, which dispute the of the 11th floor and roof of No. 9A Un Recorder did not resolve. And even if Chau St. Almost the whole of their there was an alternative route, that roof was covered by a structure made did not absolve TPs. Having regard to of asbestos tiles laid on top of a steel

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the fact that Ds had a non-delegable 到提出上訴的期限屆滿後一日才得到 had been party to the estimate that the duty of care to P, they were more D1及D2確認指示提出上訴。延誤只有 trial would last two days. But the trial blameworthy than TPs, so that an 一日，在涉案整體情況下可以原諒。 proper lasted 19 days spanning three- apportionment of 75 percent liability 更重要的是，擬提出的上訴必會得 and-a-half months. Eventually, the to them and 25 percent liability to TPs Deputy Magistrate convicted D. On the 直，因此不批准延展上訴時限將有欠 was just and equitable. prosecution’s application, the Deputy 公平。最後，延展上訴時限並無令TPs Magistrate made in its favour a wasted 民事訴訟程序蒙受不利。 costs order of HK$180,000 against MS. • 根據TPs按《高等法院規則》(第4章， MS appealed against the wasted costs order made against him. It was argued on Chen Qingqiang v Chan Yat Hong 附屬法例A)第16號命令第5條規則所 his behalf that upon a correct application [2017] HKEC 913 承認的違責行為，他們已違反普通法 of the relevant principles, no such order 上訴法庭和《佔用人法律責任條例》(第314章) should have been made. His appeal was 雜項案件2016年第3430號及上訴法庭第3條所施加的謹慎責任，令P面對他 reserved by the Court of First Instance to 民事上訴案2017年第90號們確實或理應知悉的受傷風險。他們 the Court of Appeal. 上訴法庭副庭長林文瀚，上訴法庭法官潘的行為必曾導致P受傷。案中曾有一項 Held, dismissing MS’s appeal against the 兆初，原訟法庭法官陳美蘭事實爭議，即是否有另一條運送路徑 wasted costs order, that: 2017年5月8日可供P選用，但特委法官沒有解決該項 • It having been raised by the Court 爭議。即使有另一條運送路徑可供P選 of Appeal of its own motion, the question of whether MS’s appeal 上訴 — 逾期上訴許可 — 向第三方用，這也不免除TPs的法律責任。考慮到D1及D2事實上對P負有不可轉授 against the wasted costs order could 提出申索，要求第三方對受傷原 be referred to, and determined by, the 的謹慎責任，他們慮較TPs負有更大責告人的損失作出分擔 — 應否批准 Court of Appeal was answered in the 任。因此，公平公正的做法是把責任延展時限 affirmative. 攤分，以致D1及D2須承擔75%，TPs • The legal principles on the making of P是一名雜工，在一幢位於欽州街5至11 則須承擔25%。 wasted costs orders were as follows. 號的大廈進行裝修工作。D2是該地盤的總 An advocate enjoyed privileges before 承判商，而P的僱主D1是負責裝修該大廈 the court, and owed a duty to the 外牆的分判商。案中第三方(下稱TPs)是欽 CRIMINAL court, for which he was bound by standards of professional conduct. 州街9A號十二樓連天台的註冊業主。該天 As well as being compensatory, the 台幾乎全部由一個構築物遮蓋，該構築物 Re Sutherland (Appeal: Wasted Costs Order) [2017] HKEC 967 wasted costs jurisdiction was punitive 透過把石棉塊鋪在鋼架頂部而搭成。事發 Court of Appeal for the purpose of punishing the 時，P在該構築物頂部工作，負責把一桶 offending practitioner for failure to Magistracy Appeals Nos. 685 of 2013 fulfil his duty to the court. In order 混凝土從混製之處運送給正在大廈另一邊 and 425 of 2014 to establish a breach of this duty, 外牆工作的工友。運送途中，P從該構築 Lunn V-P and Macrae and Pang JJA it was not necessary to establish 物頂部墮到2.5米下的底部，令他左腳、 15 May 2017 dishonesty, criminal conduct, personal 左腳踝和腰背受傷。他向D1及D2索償， obliquity or behaviour such as would 而該申索以960,000元(連利息)得到和 Wasted costs order – defence counsel ordered to pay wasted warrant striking a barrister off the roll. Equally, mere mistake or error 解。D1及D2則向TPs索償，而經聆訊後， costs personally for his conduct of judgment would not generally 特委法官認為TPs的過失事實上並無導致 during trial – principles involved P受傷，故裁定D1及D2敗訴。在提出上訴 suffice. The word “improper” in the in making wasted costs order – definition of “wasted costs” in the 的期限屆滿一日後，D1及D2針對特委法 court’s approach Costs in Criminal Cases Ordinance 官的裁決提交上訴通知書。 D appeared in the Magistrates’ Court (Cap. 492) (the “CCCO”) covers any 裁決 — 准許D1及D2逾時提出上訴，並裁 on a charge of indecent assault. He significant breach of a substantial duty imposed by a relevant code of 定上訴得直，下令經各方同意下判定須由 did not give evidence. His instructions professional conduct. It also extended D1及D2付予P的960,000元(連利息)的其 to his counsel were that his elbow and to any conduct which would be 中25%由TPs支付﹕ hand had slipped and fell to the left accidentally hitting V on the leg while regarded as improper according • D1及D2延誤提出上訴的理由為，他們 they were sitting next to one another to the consensus of professional (including judicial) opinion, whether 的代表律師取得大律師的意見後，直 in the cinema. Defence counsel, MS, or not such conduct violated the letter

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of a professional code. By the use of 刑事法可以被轉呈上訴法庭，由上訴法庭作 the words “seriously” and “serious” 出裁決？答案是肯定的。 in the definition of “wasted costs” in Re Sutherland (Appeal: Wasted Costs • 現列出作出虛耗訟費令所牽涉的法律 the CCCO, a higher threshold was Order) [2017] HKEC 967 required under s. 18 of the CCCO 原則：出庭辯護人在法庭席前享有特上訴法庭 when compared with its civil or United 權，但亦受專業操守準則約束，對法 Kingdom counterparts. It was not 裁判法院上訴案2013年第685號及2014 庭負有責任。作出虛耗訟費的司法管 errors of judgment which attracted 年第425號轄權除了帶有補償性質之外，也帶有 the exercise of the wasted costs 上訴法庭副庭長倫明高懲罰性質，目的是懲罰沒有履行對法 jurisdiction, but errors of a duty owed 上訴法庭法官麥機智庭所負責任的涉案律師。要去證明有 to the court. Public policy required any 上訴法庭法官彭偉昌人不履行這項責任，不一定要證明該 court considering making a wasted costs order to take into consideration 2017年5月15日人不誠實、不正直、作出刑事行為或 that advocates should be free to 足令其姓名從大律師登記冊上被剔除 conduct cases in court fearlessly 的行為。同樣地，在一般情況下，僅 under our adversarial system of 虛耗訟費令 — 辯方大律師被命令是犯錯或判斷上出錯都不是足夠的證 justice. Full allowance must also be 由他本人就自己在審訊期間的行為明。「虛耗訟費」在《刑事案件訟費 made for an advocate’s difficulties or 條例》(第492章)(「《條例》」)的 limitations in proceedings before a 支付虛耗訟費 — 作出虛耗訟費令 wasted costs order was made against 所牽涉的原則 — 法庭的處理方法定義之中，「不當的」涵蓋以任何方 him. A wasted costs order against a 式嚴重違反相關專業操守守則所訂明 barrister personally was a draconian 被告人就一項猥褻侵犯控罪在裁判法院應的實質責任，而按照專業人員(包括 order. It should only be made on the 訊。他沒有作供。他給大律師的指示是，司法人員)的共識，涵蓋範圍亦延伸 basis of a seriously improper act or 他在戲院與受害人毗鄰而坐，他的手肘和至任何會被視為不當的行為，不管這 omission, or serious misconduct, 手意外地滑向左邊，打落在受害人的大腿樣的行為有否違反專業守則的字面意 not mere lack of wisdom, discretion 上。預計審訊需時兩天，MS一直是代表義。「虛耗訟費」在《條例》的定義 or valour. The Deputy Magistrate 被告人確定預計審訊日數的大律師。可 considered: (a) whether MS had acted 用上「嚴重」一詞，相較民事法或英 seriously improperly or been guilty of 是，正審長達19天，審訊時間橫跨三個國的對等條例，《條例》第18條要 serious misconduct; (b) if so, whether 半月。暫委裁判官最終判被告人有罪。因求的門檻更高。引致行使關乎虛耗訟 that caused the applicant for a wasted 應控方的申請，暫委裁判官作出虛耗訟費費的司法管轄權的，不是判斷上的錯 costs order to incur unnecessary 令，規定MS向控方支付虛耗訟費180,000 誤，而是對法庭負有的責任上所犯的 costs; and (c) if so, whether it was 港元。MS針對規定由他支付虛耗訟費的錯。公共政策要求法庭考慮作出虛耗 just in all the circumstances to order 虛耗訟費令，提出上訴。他的代表大律 MS to compensate the applicant for 訟費令的時候，同時考慮到在對辯式 the whole or any part of the relevant 師辯稱，如果各個相關原則有被正確地運訴訟的司法制度下，出庭辯護人應該 costs. The burden of proof rested on 用，本來就不應該有這個命令作出。原訟有處理法庭案件的自由，可以無所顧 the applicant. It was a civil standard 法庭將被告人的上訴留待由上訴法庭審忌。另外，作出虛耗訟費令，規定MS of proof, but the more serious the 理。須付虛耗訟費之前，亦必須充份考慮 allegation, the stronger should be the 出庭辯護人在法律程序中遇到的困難 evidence before the court found the 裁決 – 駁回MS針對虛耗訟費令的上訴：和限制。規定由大律師本人支付虛耗 allegation established on a balance of • 上訴法庭主動提出一個問題：MS針對訟費的命令是一項嚴苛的命令。作出 probabilities. 虛耗訟費令提出上訴，他的上訴可不 • There was no error in either the Deputy Magistrate’s approach to the relevant legal principles or his application of those principles to the circumstances pertaining to the case (except that the order erred on the side of generosity to MS in that it could have, and should have, been greater).

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虛耗訟費令的基礎，應該只是嚴重不 and the supervision of workers, his Loss of earning capacity 當的作為或不作為，或者是嚴重不當 activities in this business included his • It was submitted on P’s behalf that if 行為，而不僅僅是欠缺智慧、不夠謹 climbing up and down the scaffoldings no award was made for loss of future to be dismantled and personally carrying 慎、不夠英勇。暫委裁判官考慮：(a) earnings, then damages should be out some of the more dangerous awarded for loss of earning capacity. MS的作為是否嚴重不當或者他有否 dismantling work such as was involved But an award for loss of earning 犯有嚴重不當行為；(b)如果是這樣的 when such work was done at a height capacity was not a conventional 話，該作為或行為有否導致虛耗訟費 of 20 m. His damages were assessed award to be made in the abstract but 令的申請人招致不必要的費用；及(c) on 14 August 2015. At the assessment, a specific mode of compensation that 如果是這樣的話，命令MS賠償申請 P’s case was that he was unable to go had to be based on evidence; and to any construction site until July 2011; 人全部相關費用或當中任何部份，是 there was no evidence for such an he resumed contracting work from award in the present case. 否在所有情況下都屬公平之舉。舉證 construction sites that month, but that Future medical expenses 責任須由申請人承擔。舉證的標準是 he aimed at safer dismantling and 民事的舉證標準，不過指控越嚴重， transportation works which only required • The cost of a future operation would only be awarded if the court were 證據就應該越有力，這樣，法庭才能 him to supervise the workers on site. He satisfied that the operation was based 基於相對可能性的衡量，裁定指控成 appealed against the Deputy Judge’s refusal to make any award for (a) loss on medical advice, was necessary 立。 of earnings after July 2011; (b) loss of or reasonably required for recovery • 暫委裁判官處理相關法律原則的方法 earning capacity (pre-trial or post-trial); or improvement or the relief of persistent pain and suffering, and was 沒有錯，在案中相關情況對該等原則 or (c) future medical expenses. anticipated or likely to take place in 的運用也沒有錯(可是暫委裁判官錯在 Held, dismissing the appeal, that: the near or reasonably foreseeable 對MS寬容，他可以作出，也原本應該 Loss of earnings future; and the Deputy Judge was 作出更嚴苛的命令)。 • In reliance on the Deputy Judge’s entitled to resolve the issues of observation that P “could have been primary fact against P on those entitled to claim for the extra business matters. DAMAGES expenses including the cost of extra outside help and operating cost 損害賠償 Lo Hing Kin Nelson v Personal to take up part of his pre-accident Representative of Lam Yuk Wan roles on site in his business”, it was Lo Hing Kin Nelson v Personal (deceased) [2017] HKEC 910 submitted on P’s behalf that he was Representative of Lam Yuk Wan Court of Appeal entitled to damages representing (deceased) [2017] HKEC 910 Civil Appeal No. 206 of 2015 such expenses. But that was not 上訴法庭 how the case was run below, which Chu and Poon JJA and Godfrey Lam J 民事上訊案件2015年第206號 was that the business had been 8 May 2017 running at a loss after July 2011. 上訴法庭法官朱芬齡 Loss of earnings – loss of earning There was no alternative claim for 上訴法庭法官潘兆初 capacity – future medical damages representing such expenses. 原訟法庭法官林雲浩 expenses – approach to be Advancing such an alternative case on appeal without having advanced taken by plaintiff in establishing 損失收入 — 失去謀生能力 — 將來 entitlement to award of damages it at first instance was precluded by the Flywin principle. It was argued on 醫療開支 — 原告人證明有權獲判 On 18 June 2009, P, then aged 34, was P’s behalf that it was for a defendant 給損害賠償時所會採用的方法 injured in a traffic accident. Among to establish that a plaintiff had failed other injuries, he suffered comminuted to mitigate his loss, and that the 2009年6月18日，當時34歲的原告人在 fractures of the lower tibia and fibula of Judge had reversed this burden. But 一宗交通意外中受傷。原告人的傷勢包括 his right leg. Later that year, judgment the Judge had merely required P 右腿脛骨和腓骨下端粉碎性骨折。判他勝 for damages to be assessed was entered to prove his loss. An approach akin 訴的損害賠償判決在2009年之後登錄， in his favour. Since 2003, P had owned to that used in assessing an award 賠償額有待評估。原告人自從2003年開 and run a business in the trading and for loss of earning capacity did not transportation of metal stripped from assist P under the head of loss of 始已經營自己的金屬條貿易運輸生意，金 dismantled scaffoldings, hoardings, earnings. (see Flywin Co Ltd v Strong & 屬條是從被拆卸的棚架、巨型廣告牌、廣 billboards and signage. In addition to Associates Ltd (2002) 5 HKCFAR 356 告牌、招牌拆出來的。除了投標、管理及 things such as bidding, administration at para. 38). 監督工人等事情之外，他在這門生意的工

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作，包括在將被拆卸的棚架上爬上爬落，議而進行的；手術是復原或改善或紓緩 his birth certificate. X, by M as his next 也親自進行一些較為危險的拆卸工作，例持續痛楚、痛苦所需要或合理地必要 friend, applied for a declaration under 如，有份在20米高拆卸物件。暫委法官於的，並且預計或相當可能在不久的將來 s. 6(1) of the Parent and Child Ordinance (Cap. 429) (the “PCO”) that F was his 2015年4月14日評估他的損害賠償額。或合理可見的將來進行手術；暫委法官 natural father. M could not contact F. 評估的時候，原告人的案情是，他一直到可以根據這些事情，解決對原告人不利 After failing to effect personal service on 的主要事實的爭論點。 2011年7月才有能力到建築地盤去；那 him even though he was in Hong Kong 個月他恢復承包建築地盤工程，但只是承 at the time, X’s solicitors (“S”) effected 包較為安全的拆卸和運輸工程，那些工程 substituted service by advertisements 只需要他實地監督地盤工人。暫委法官拒 FAMILY LAW in a local English newspaper. F never appeared at hearings. In March 2014, the 絕就以下的損失判給損害賠償：(a)2011 OMH v MT Deputy Judge dismissed X’s application, 年7月之後損失的收入；(b)失去的謀生能 [2017] HKEC 1157 finding that inter alia X had not proved 力(審訊前或審訊後)；及(c)將來的醫療開 Court of Appeal that F was his natural father, since there 支。 had been no use of scientific tests as Civil Appeal No. 65 of 2015 provided for under s. 13 of the PCO; 裁決 – 駁回上訴： Lam V-P, Cheung and Chu JJA solid evidence was required given the 損失收入 19 May 2017 “massive” consequences of a declaration; • 暫委法官留意到原告人「原本有權申 and it would manifestly be contrary to Parentage – declaration sought public policy to determine parentage 索額外的業務開支，包括聘用臨時外 under s. 6(1) that respondent based solely on M’s assertion that 援的費用，及由他人接手意外發生前 natural father of applicant she had no other sexual partners. X 一部分他公司承包並由他負責的地盤 – respondent absent and no appealed. In November 2015, M traced 工程所涉及的運作成本」；原告人代 scientific evidence – immigration and contacted F, who had another family 表大律師依賴這點，陳詞指原告人有 status of applicant at issue – and did not want his wife to know about 權就這些開支得到損害賠償。但在下 degree of proof required and X or the proceedings. In December 級法院提出的案情不是這樣，而是原 approach – applicability of 2015, F terminated all contact with M and X after being asked to collect court 告人的生意在2011年7月之後一直虧 “manifestly contrary to public documents or provide an address for 本。原告人沒有就該等開支賠償提出 policy” ground for refusing service of the same. 交替申索。Flywin案訂明的原則禁止 declaration Held, allowing the appeal by granting 在上訴時提出沒有在原審時提出的交 In 2007, M, an Indonesian national and the declaration sought, that: 替案情。原告人代表大律師認為，要 domestic helper in Hong Kong, began to The issue of paternity was a serious 去證明原告人沒有減少損失的是被告 cohabit with F, a Pakistani national who • one. On an application under s. 6(1) 人，原審法官卻張冠李戴。不過原審 became a permanent resident of Hong of the PCO, the court should consider 法官只是要求原告人證明他的損失。 Kong in November 2007. M claimed that the potentially far-reaching effects she had a monogamous relationship 採用近似評估失去謀生能力的賠償金 of a declaration which was binding with F; she discovered she was pregnant 額所採用的方法，對原告人申索收入 on the Government and all persons, in September 2008 and told F about it; 損失賠償並無幫助(見Flywin Co Ltd proceed with caution and require she left F in October 2008 and was later cogent proof of the truth, but also v Strong & Associates Ltd (2002) 5 arrested for overstaying since June 2007 apply common sense in assessing HKCFAR 356第38段)。 and working illegally, but released on the evidence. The court would refuse recognizance. In July 2009, M’s son, X, 失去謀生能力 a declaration as being “manifestly was born. X’s father was not named on • 原告人代表大律師陳詞指，如果不就將來收入的損失判給賠償，就應當就失去的謀生能力判給賠償。不過，就失去謀生能力判給的賠償，不是憑空作出的慣例賠償，而是一種必須有證據支持的具體的賠償方式；本案沒有支持作出這種裁決的證據。將來醫療開支 • 法庭如果信納以下的情況，就會就將來的手術費判給賠償：手術是基於醫學建

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contrary to public policy” only where considerations. There was nothing 上訴。2015年11月，M追蹤到F，於是聯 it would offend against our ideas repugnant to the ideas of substantial 絡他，當時F已另組家庭，不想他的妻子 of substantial justice. This residual justice in granting the declaration. 知道關於X或法律程序的事。2015年12 discretion was to be sparingly 月，F在自己被要求到律師樓領取法庭文 exercised. 家庭法件或者提供送達法庭文件的地址之後，斷 • The fact that the only evidence of 絕與M和X的一切聯絡。 parentage came from M did not OMH v MT necessitate corroborative evidence, [2017] HKEC 1157 裁決 – 判上訴得直，作出宣告： although this went to whether the requirements in s. 6(3) were satisfied. 上訴法庭 • 父子關係的問題是嚴肅的問題。當有 It was relevant that notice of the 民事上訊案件2015年第65號人根據《條例》第6(1)條提出申請， application and the hearing was given 上訴法庭副庭長林文瀚法庭不單應當考慮作出宣告潛在的深 by substituted service and F had not 上訴法庭法官張澤祐遠影響――因為政府及所有人都受到 entered an appearance. 法庭作出的宣告所約束，事事謹慎，上訴法庭法官朱芬齡 • The Deputy Judge was right to adopt 要求證實真相的有力證據，還應當在 a cautious approach. However, he 2017年5月19日評核證據時運用常識。法庭只會在作 was unduly swayed by the absence 出宣告會違反對實質公義的理念的情 of evidence of scientific tests. M had 父子關係 – 根據第6(1) 條要求法況下，才以「明顯地有違公共政策」 lost contact with F before X’s birth 庭宣告答辯人是申請人的生父 – and thus, the unavailability of such 為由，拒絕作出宣告。這項剩餘酌情答辯人缺席並且沒有科學證據 – evidence was due to circumstances 權是要謹慎地行使的。 beyond X’s control. On an overall view 爭論申請人的入境身分 – 要求的 • 唯一證明父子關係的證據是由M提供 and given the Deputy Judge made 舉證程度及方法 –「明顯地有違 no adverse finding on M’s credibility, 公共政策」是否適用於作為拒絕的，這是一個事實，不需要佐證，不過還要看證據是否符合第6(3)條的規 the lack of scientific evidence did not 宣告的理由 undermine M’s evidence or X’s case. 定。申請通知書和聆訊通知書是經替 • M’s omission to mention F’s M是印尼籍香港家庭傭工，她2007年開代方式送達F的，但F沒有呈交應訴 response when she told him about 始與巴基斯坦籍的F同居，F在2007年11 書，這點和本案有關聯。 her pregnancy, although potentially 月成為香港永久性居民。M聲稱與F的是 crucial, did not mean the Court • 暫委法官小心謹慎，做法正確。然 should or could not act on her 單一性伴侶關係；她2008年9月發現自己而，他因為案中沒有經科學測試的證 evidence alone. If it was of concern, 懷孕，於是告訴F；她2008年10月離開據而動搖。M在X出世前已經與F失去 the Deputy Judge should have invited F，之後被拘捕，因為她自2007年6月開聯絡，因此，證據欠奉是由於X所不能 counsel to address him on what 始逾期居留，並且非法工作，但獲批准領控制的情況所致。整體而言，考慮到 effect, if any, the omission had on the 取擔保書外出。2009年7月，M的兒子X 暫委法官沒有對M的可信程度作出不 rest of M’s evidence and X’s claim. 出世。X的出生證明書上沒有指明父親是 Moreover, M’s evidence that she was 利的裁決，欠缺科學證據並不削弱M monogamous while cohabiting with F, 誰。X(透過M以X的起訴監護人的身份)根的證據或X的論據。據《父母與子女條例》(第429章)(「《條 was neither rejected nor doubted, and • M沒有提到當她告訴F自己懷孕時，F was capable of supporting X’s case on 例》」)第6(1)條提出申請，要求法庭宣的反應，雖然F的反應可能具有關鍵意 paternity. However, this issue was not 告F是他的生父。M聯絡不到F。雖然F當義，但這並不代表法庭應當或者可以 canvassed at the hearing. 時在香港，但X的律師(「S」)以面交方式只基於她的證據行事。如果關注M的 • It was clear that, despite having 向他送達文件不果，於是在本地一份英文 notice, F did not wish to participate in 不作為，暫委法官本應該邀請大律師報章刊登廣告，以替代方式送達文件。F the court proceedings or to challenge 向他陳明M的不作為對M其餘證據及X 從不在聆訊中出席。2014年3月，暫委法 X’s application. On all the evidence, 的聲稱有甚麼影響(如果有任何影響的官駁回X的申請，裁定(除了別的以外)X X’s parentage was established. 話)。此外，M作供稱自己與F同居時只沒有證明過F是他的生父，因為《條例》 • As for whether it would be manifestly 有一個性伴侶，她的口供不被拒絕， contrary to public policy to grant 第13條所規定的科學測試一直沒有被使也不被懷疑，能夠支持X所指的父子關 a declaration under s. 6(1), X’s 用；考慮到法庭作出宣告的後果「嚴重」係。然而，沒有人在聆訊時就這個爭 application was uncontested. (massive)，X必須有確鑿的證據；只基於論點徵求意見。 The fact that the only evidence in M聲稱自己沒有其他性伴侶，就確定X與 support came from M and the lack of F的父子關係，明顯地有違公共政策。X • 雖然F接到通知，但他不想參與法律程 scientific evidence were not relevant

www.hk-lawyer.org 67 • August 2017

序或質疑X的申請是清楚可見的。根據 from HK$0.20 on 1 February 2017 to a Held, dismissing the appeal, that: peak of HK$0.97 on 29 May 2007 and 所有的證據，X與F的父子關係得以確 • The word “using” in the then s. 271(3) HK$0.83 on 6 June 2007 before trading 立。 should not be construed as covering was suspended. R1 sold 6 million shares withholding or non-disclosure of • 至於會否是第6(1)條所指的明顯地有 in C in late May 2007, and R2 sold a relevant information. This would total of 10 million shares in C between 違公共政策，X的申請並沒有受到爭 equate “use” of price-sensitive February 2007 and June 2007, both 議。支持申請的唯一證據是由M提供 information with the “possession” of resulting in profits. On 6 June 2007, G 的，並且案中沒有科學證據，但此等 it and render the statutory defence in served a petition to wind up C. The SFC 事實不是相關的考慮因素。作出宣告 s. 271(3) otiose. If any senior executive commenced proceedings against, inter who had such information would be 與實質公義的理念沒有任何牴觸。 alia, Rs for insider dealing. The Market deemed to have withheld information Misconduct Tribunal (the “Tribunal”) which he knew would significantly found that while the Assignment and impact on the share price, regardless the Statutory Demand taken together REGULATORY of the reason and whether it was the constituted relevant information and Rs executive that caused the information knew that they were relevant information Securities and Futures Commission v Yiu not to be released to the public, under the Securities and Futures Hoi Ying Charles so that there would always be a Ordinance (Cap. 571) (the “Ordinance”), [2017] HKEC 826 mischievous purpose in any dealing, no market misconduct was identified Court of Appeal the statutory defence would be in respect of Rs. It was held that the Civil Appeal No. 154 of 2016 illusory. Further, it was not necessary defence under the then s. 271(3) of to strain the meaning of “use” to Lam V-P, Cheung and Kwan JJA the Ordinance was applicable as their import the obligation of disclosure 26 April 2017 motivating factor was to profit from an under r. 13.09 and related provisions unexpected speculative boom in the of the Listing Rules in 2007, which share price and their exercise of the share Insider dealing – s. 271(3) defence were now codified into Part XIVA of options was not in any way coloured by that purpose of dealing did the Ordinance. not include securing profit by the price-sensitive information in their possession. The SFC appealed to the • The suggestion that Rs knowingly “using relevant information” – and directly contributed to the “using” in s. 271(3) did not cover Court of Appeal. At the relevant time in 2007, s. 271(3) of the Ordinance provided maintenance of a falsely inflated share withholding or non-disclosure of price of C by withholding or causing C relevant information that “A person shall not be regarded as having engaged in market misconduct by to withhold price sensitive information and that they knowingly profited R1 was the Executive Director and reason of an insider dealing taking place from the falsely inflated share price Financial Director of C, a Hong Kong through his dealing in … listed securities necessarily meant they were “using listed company, and R2 was its company or derivatives … if he establishes that the the relevant information” when they secretary. C was insolvent due to a purpose for which he dealt … in the listed dealt in the shares, was not advanced long-standing debt owed to X, who securities or derivatives in question … was by the SFC before the Tribunal. It served various statutory demands on not, or, where there was more than one was an issue of mixed law and fact, C between October 2002 and April purpose … did not include, the purpose of and there was no relevant finding of 2006, but had been generally open to securing or increasing a profit … whether fact by the Tribunal to support this negotiations on repayment of the debt. for himself or another, by using relevant argument. Procedural fairness would In February 2007, X assigned the debt to information.” G for HK$25 million (the “Assignment”). C was informed of the Assignment and G demanded repayment. In April 2007, C received a statutory demand from G, demanding payment of HK$70,270,491 (the “Statutory Demand”). At that time, the Assignment and the Statutory Demand were known to Rs but not to the market. Between February 2007 and June 2007, C’s shares were riding on a speculative wave of “small cap” stocks not supported by any realistic fundamentals and its price surged

68 www.hk-lawyer.org August 2017 • CASES IN BRIEF 案例撮要

require that a person who was the subject of an inquiry should know the factual and legal bases which formed part of the SFC’s case, so that he would have a full opportunity to address the pertinent issues in evidence and make meaningful submissions.

監管

Securities and Futures Commission v Yiu Hoi Ying Charles [2017] HKEC 826 萬C股份，R2由2007年2月至2007年6月高級行政人員，會被視為隱瞞資料，上訴法庭合共出售1,000萬C股份，R1和R2都售股而不論箇中原因，也不論他是否就民事上訊案件2016年第154號獲利。2007年6月6日，G送達呈請書，是那名引致資料不向公眾人士公布的上訴法庭副庭長林文瀚要求將C清盤。證監會展開法律程序，控行政人員，以致任何交易的目的總會上訴法庭法官張澤祐告(其中包括)兩名答辯人進行內幕交易。帶有惡意，法定辯護就會形同虛設。上訴法庭法官關淑馨市場失當行為審裁處(「審裁處」)認為，另外，並無必要延伸「利用」一詞的 2017年4月26日雖然該轉讓和該法定要求償債書一併構成涵意，把披露責任加入其中，因為在有關消息，並且兩名答辯人知道該等消息 2007年，披露責任是受到《上市規內幕交易 — 第271(3)條的辯護：是《證券及期貨條例》(第571章)(「《條則》第13.09條及相關規定所規管，交易的目的不包括「利用有關消例》」)所指的有關消息，但完全找不到與並且現在已被編纂為成文法則，載入息」獲得利潤 — 第271(3)條的兩名答辯人有關的市場失當行為。審裁處《條例》第XIVA部之中。「利用」不包含隱瞞或不披露有裁定，《條例》當時的第271(3)條下的辯 • 有人認為，兩名答辯人在明知的情況關消息的意思護適用，因為股價突然隨炒股熱潮飊升，下，隱瞞或引致C隱瞞股價敏感資料，兩名答辯人是為了賺取利潤才出售股份，第一答辯人(「R1」)是香港一間上市公司是直接促成C股份維持於被假意抬高的二人有擁有股價敏感資料，但這完全不影 (「C」)的執行董事及財務董事，第二答價格，並且他們是在明知的情況下，響他們行使購股權的決定。證監會上訴至辯人(「R2」)是C的公司秘書。C長期拖欠趁股價被假意抬高而從中獲取利潤，上訴法庭。在2007年的有關時間，《條 X一筆債項，是一間無力償債的公司。X 意味他們在買賣股份的時候，必定有例》第271(3)條規定，「凡任何人證明在2002年10月至2006年4月，多次向C 「利用有關消息」。證監會沒有在審以下情況，則不得以透過他進行……上市送達法定要求償債書，但X通常都願意就裁處席前提出這點。這是一個同時牽證券或衍生工具的交易……而發生的內幕債項的付還進行洽談。2007年2月，X將涉法律與事實的爭論點，由審裁處就交易為理由，而視他為曾從事市場失當行該筆債項轉讓予G，G支付的轉讓代價為相關事實作出的裁斷並不支持這個爭為︰他進行……有關的上市證券或衍生工 2,500萬港元(「該轉讓」)。C獲告知該轉論。公正的程序會要求研訊對象知悉具的交易……的目的，並非在於(亦並不包讓，G要求C還款。2007年4月，C收到G 證監會部份論據的事實依據和法律依括)利用有關消息為自己或他人獲得或增加要求獲償還70,270,491港元的法定要求據，以致他一早就完全有機會從證據利潤……損失。」償債書(「該法定要求償債書」)。那時，中提出恰當的爭論點，作出具有內涵兩名答辯人知道有該轉讓及該法定要求償裁決 – 駁回上訴：的陳詞。債書，但市場並不知道。2007年2月至 • 當時的第271(3)條的「利用」一詞， 2007年6月，C的股份受到炒賣「細價」不應被解釋為包含隱瞞或不披露有關股浪潮影響，在沒有任何實際基礎支持的消息的意思。這樣解釋的話，「利 For full summaries and judgments, please refer 情況下，股價由2007年2月1 日的0.20港用」股價敏感資料會等同於「擁有」 to Westlaw and Hong Kong Law Reports & 元，飊升至2007年5月29日的0.97港元股價敏感資料，令第271(3)條的法 Digest at www.westlaw.com.hk. 最高位，2007年6月6日暫停買賣之前，定辯護無用武之地。如果任何掌有這就完整的摘要和判決書，請到 www.westlaw.com.hk 參閱Westlaw 見0.83港元。R1在2007年5月終出售600 些資料並知悉資料會嚴重影響股價的及《香港法律彙報與摘錄》。

www.hk-lawyer.org 69 • August 2017 The Return of WILHK’s Mentoring Programme

By Women in Law Hong Kong (“WILHK”)

s part of Women in Law Hong 2016 joined a discussion panel to share AKong’s (“WILHK”) commitment their thoughts on mentorship and their to enhancing the profiles, skills and experience of the 2016 WILHK Mentoring networking opportunities for women Programme to prospective participants: in the legal field, we are delighted to ”The WILHK programme is, so far as I am launch, for the second year running, the aware, unique – it gives a young female so many 2016 mentors who had just gone WILHK Mentoring Programme. lawyer the opportunity to seek impartial through a mentoring cycle with us last Following the positive reception of last advice and guidance from someone she year have again applied to be mentors this year’s pilot mentoring sessions, the 2017 trusts without that advice being prejudiced year. Again this shows real commitment WILHK Mentoring Sub-Committee has by organisational baggage. This is why I from senior legal practitioners who are built this year’s programme with a strong wanted to get involved. If I can help just really trying to do their part in changing focus on empowering mentees with key one person stay in the industry and make the industry landscape,” added Maya skills to navigate their legal careers: a private practice more diverse, it will be Wodnicka, Sponsorship Director. worthwhile,” said Allan Wardrop, Partner slate of skills workshops form one pillar Ten mentees and 13 mentors were at Hogan Lovells and Mentor, Class of of the curriculum, while social events and shortlisted for the 2017 programme. All 2016. time spent in mentor/mentee pairs and successful applicants were invited to mentor/mentee small groups complete The programme saw more than 100 participate in two matching sessions in the foundation. percent increase in the number of April and May that involved ice breakers, ”We are lucky to have very active mentors applications from last year. “There is a with mentors giving 3-minute elevator need for more mentoring in Hong Kong and mentees, who are keen to share pitches covering what they would like for females in the legal profession, and their ideas, experiences and suggestions to offer mentees and their commitment the level of interest is the best evidence of for strengthening and improving the to mentorship. The session hosted a that. We hope to be able to expand the programme. We are continuously mentor and mentee “speed-dating” to let programme over time, and to build up the incorporating feedback from programme mentors and mentees get to know each sponsorship infrastructure to give as many alumni and are always excited to see the other and find the most suitable pairs for women no-cost access to mentoring as level of engagement from those involved,” the programme. After the two matching possible,” Susan Wong, Mentoring Vice- says Ka Yin Au Yeung, Mentoring Chair. sessions, mentors and mentees were Chair noted. asked to submit their top three choices This past March, alumni mentors and “We are also extremely encouraged that and were matched based on mentoring mentees from the mentoring class of

70 www.hk-lawyer.org August 2017 • CAREER DEVELOPMENT 事業發展

needs and preferences to optimise the mentoring relationship. WILHK師友計劃載譽歸來 This year, WILHK has partnered with 作者 Women in Law Hong Kong (“WILHK”) and has been generously supported by Unibly, a startup mentoring platform omen in Law Hong Kong(WILHK)致贊助事務總監Maya Wodnicka說：「很多剛 application, and its Managing Director, W力提升法律界女性的形象、技能和人完成2016年計劃的學員，今年申請成為導 Joash Lee. At the end of May, through 際網絡，為此，將舉辦第二屆WILHK師友員，我們非常鼓舞。這顯示了資深法律執業 Unibly’s software application, WILHK 計劃。者作出實際承諾，為改變行業格局作出貢 announced all matched mentor and 去年的試驗計劃大獲好評，2017年WILHK 獻。」 mentee pairs. 師友小組委員會已制定了今年的計劃，重 2017年計劃有10位學員和13位導師入選。 “WILHK is keen to optimise the 點加強學員發展法律事業所必需的關鍵技入選者獲邀參加4月和5月的兩場配對環 mentor/mentee relationship, and we 能：計劃的一個重要部份是技能工作坊，節。導師們在3分鐘的演講中，介紹他們希 saw the Unibly app, which is new to 而另一個是導師與學員配對和小組社交活望教授學員什麼及對師友計劃的承諾。導師 the mentoring market as a great way to bring ‘tech’ into the game.” Stella 動。和學員進行「速配」互相認識，找出最合適 Loong, Committee Member, remarked. 師友小組委員會主席歐陽嘉燕律師表示：的搭檔。經過兩場配對環節後，導師和學員每人選出三位人選，然後根據學習需要和 The WILHK 2017 Mentoring 「我們很幸運，導師和學員均積極參與， Programme workshop series is now 樂於分享他們的想法、經驗和建議，供我喜好來找到最佳配搭，以優化師友之間的關 in full swing and summer informal 們加強和改進計劃。我們不斷收集上屆參係。 mentoring sessions are planned for the 加者的意見，看到他們踴躍參與總是令人今年，WILHK獲Unibly(一家初創教學平台應 next few months: more details of these 很高興。」用程式)及其董事總經理Joash Lee的慷慨支 will be available in an upcoming issue 持。通過Unibly的應用程式，WILK在5月底 of the Hong Kong Lawyer. 今年3月，2016年度師友計劃的參加者出席了討論會，向有意參加今年計劃者分享公佈了所有師友配對組合。 The application period for the 2017 他們對計劃的看法和去年的經驗： cycle of the WILHK Mentoring 委員會成員Stella Loong表示：「WILHK致 Programme is now closed. The next 2016年計劃導師Allan Wardrop(霍金路偉力優化師友之間的關係，而創新的Unibly應 mentoring cycle will commence in the 合夥人)說：「WILHK師友計劃是我所知最用程式，正是計劃善用科技的好方法。」 first quarter of 2018. The application 獨一無二的計劃，它讓年青女律師認識可 2017年WILHK師友計劃一系列工作坊已全 process will begin around March 信任的導師，給予公正的意見和指導而不面展開，在未來數月將舉行夏季非正式指導 2018. To receive the most updated 受機構組織的影響。這正是我想參與這個課程。詳情請留意下期《香港律師》內的公 information about WILHK, please go to www.wilhk.com and register as a 計劃的原因。我若能幫助一個人留在法律佈。界，使法律執業更多元化，這已是值得做 WILHK member. n 2017年WILHK師友計劃申請已經結束。下的。」一個師友學期將於2018年第一季度開始， This year’s programme is currently 計劃今年的申請人數比去年增加一倍以由2018年3月開始接受申請。有關WILHK的 being sponsored by FTI Consulting, 上。委員會副主席Susan Wong表示：「申最新消息，請瀏覽www.wilhk.com並登記成 Oldham, Li & Nie, Jones Lang LaSalle, 請踴躍，可見香港法律界需要更多為女性為WILHK會員。n Hogan Lovells, Herbert Smith Freehills, 而設的師友計劃。我們希望計劃能逐漸擴 Unibly and Ashurst. 本年計劃由FTI Consulting、高李嚴律師行、大，並建立贊助基礎，盡可能讓更多女性仲量聯行、霍金路偉、Herbert Smith Freehills、獲得免費指導。」 Unibly及Ashurst贊助。

www.hk-lawyer.org 71 • August 2017

PROFESSIONAL MOVES 會員動向

Newly-Admitted Members 新會員

CAI XUANLUN LAM ALICJA EMMA MARQUIS 蔡暄倫 CHRISTABEL VERONIQUE WEST OF ENGLAND 林曉欣 ELISABETH INSURANCE C/O SKADDEN, EVERSHEDS SERVICES ARPS, SLATE, 安睿國際律師事務所 (LUXEMBOURG) MEAGHER & FLOM S.A.

CASSIDY HANNAH LEUNG CHO YU SCHMIERER ESTELLE 梁祖瑜 STEFAN CHRISTIAN ROBINSONS, HERBERT SMITH MAK PATRICK & LAWYERS FREEHILLS TSE 史密夫斐爾律師事麥家榮律師行羅本信律師行務所

INDWAR SUMIT LEUNG WAI YEE ZHAO MEIPING LEO JESSLYN 趙梅冰梁慧怡 FRESHFIELDS LINKLATERS BRUCKHAUS 年利達律師事務所 DERINGER 富而德律師事務所

KWOK CHI TSUN LI XIN STEVE 李鑫郭子俊 LINKLATERS SKADDEN, ARPS, 年利達律師事務所 SLATE, MEAGHER & FLOM 世達國際律師事務所

KWONG TAT HOI LIM TONG CHUAN DANIEL WAI & CO., HENRY 鄺達開 SOLICITORS 韋業顯律師行

72 www.hk-lawyer.org August 2017 • PROFESSIONAL MOVES 會員動向

CARABINE NEIL BRUCE Partnerships and Firms KING & WOOD MALLESONS changes received as from 1 June 2017 金杜律師事務所合夥人及律師行變動取自2017年6月1日起香港律師會所提供之最新資料 CHAN WA 陳樺 • ADEBIYI JOHN DANIEL ABIODUN • CHU PO KING ceased to be a partner of Skadden, ceased to be a partner of Winston & CLEMENTSON INDRA Arps, Slate, Meagher & Flom as from Strawn as from 01/07/2017 and joined 01/07/2017. Withers as a partner on the same day. EDWARDS ADELAIDE MARGARET 自2017年7月1日不再出任世達國際律師朱寶琼 WANDA 事務所合夥人一職。自2017年7月1日不再出任溫斯頓律師事 HERBERT SMITH FREEHILLS 務所合夥人一職，並於同日加入衛達仕 • CARABINE NEIL BRUCE 律師事務所為合夥人。史密夫斐爾律師事務所 joined King & Wood Mallesons as a partner as from 06/07/2017. • COLE KEITH RICHARD FONG WING KI 自2017年7月6日加入金杜律師事務所為 ceased to be a partner of Deacons as 方穎琪合夥人。 from 01/07/2017. 高祺利 LEE SU-MIN GWENLYNNE • CASSIDY HANNAH ESTELLE 自2017年7月1日不再出任的近律師行合李淑明 joined Herbert Smith Freehills as a 夥人一職。 LATHAM & WATKINS partner as from 22/06/2017. 瑞生國際律師事務所自2017年6月22日加入史密夫斐爾律師事 • DAPIRAN ANTONY MATTHEW 務所為合夥人。 ceased to be a partner of Davis Polk & LO FEI SYMIE Wardwell as from 01/07/2017. • CHAN KA MAN KAREN 羅菲自2017年7月1日不再出任Davis Polk & became a partner of Davis Polk & Wardwell合夥人一職。 MIAO & CO. Wardwell as from 01/07/2017. 繆氏律師事務所陳家敏 • DUTTON EDWARD DREW 自2017年7月1日成為Davis Polk & PARKER CHRISTOPHER ceased to be a partner of Debevoise & Wardwell合夥人。 Plimpton as from 01/07/2017. ALEXANDER 自2017年7月1日不再出任德普律師事務 THE HONGKONG AND SHANGHAI • CHAN SAI CHEE ELSA 所合夥人一職。 BANKING CORPORATION ceased to be a partner of Baker & LTD. McKenzie as from 02/07/2017. • FORSYTH ANGUS HAMISH 陳世芝 commenced practice as the sole SIM HWANG HWA 自2017年7月2日不再出任貝克‧ 麥堅時 practitioner of Angus Forsyth & Co. as 沈煌華律師事務所合夥人一職。 from 01/07/2017. LINKLATERS 自2017年7月1日獨資經營Angus 年利達律師事務所 • CHANG MAN LEONG Forsyth & Co.。 became a partner of Michael Li & Co. as SKLENAR DOMINIK from 01/07/2017. • HATZER PAUL JOHN 張文亮 ceased to be a partner of Holman WANG ZHENYA 自2017年7月1日成為李智聰律師事務所 Fenwick Willan as from 01/07/2017. 王震亞合夥人。自2017年7月1日不再出任夏禮文律師行合夥人一職。 PAUL HASTINGS • CHENG CHEUK HIM 普衡律師事務所 became a partner of Khoo & Co. as from • JI XIAODONG 04/07/2017. commenced practice as the sole WONG WAI YI FERLA 鄭焯謙 practitioner of William Ji & Co. as from 黃慧儀自2017年7月4日成為丘煥法律師事務所 08/06/2017. 合夥人。紀晓東自2017年6月8日獨資經營紀晓東律師 • CHENG KIN PONG 行。 became a partner of Rowdget W. Young & Co. as from 03/07/2017. • KWAN CHI KIT 鄭建邦 became a partner of David Fong & Co. 自2017年7月3日成為楊振文律師行合夥 01/07/2017. 人。關智傑自2017年7月1日成為方良佳律師事務所合夥人。

www.hk-lawyer.org 73 • August 2017

• KWOK CHI TSUN STEVE • PETERMAN SCOTT DENNIS • TARALA THOMAS JOSEPH joined Skadden, Arps, Slate, joined Orrick, Herrington & Sutcliffe as ceased to be a partner of Hogan Lovells Meagher & Flom as a partner as from a partner as from 04/07/2017. as from 08/07/2017. 20/06/2017. 自2017年7月4日加入奧睿律師事務所自2017年7月8日不再出任霍金路偉律郭子俊為合夥人。師行合夥人一職。自2017年6月20日加入世達國際律師事務所為合夥人。 • ROMPOTIS PHILLIP • TONG YU PING GEORGE joined Cordells as a partner as from became a partner of Minter Ellison as • LAU HARVEY 06/06/2017. from 01/07/2017. joined Baker & McKenzie as a partner 龍菲臘唐宇平 as from 01/06/2017. 自2017年6月6日加入Cordells為合夥自2017年7月1日成為銘德律師事務所劉哈維人。合夥人。自2017年6月1日加入貝克‧ 麥堅時律師事務所為合夥人。 • SIM HWANG HWA • TSE SIU YUEN ANTHONY joined Linklaters as a partner as from ceased to be a partner of Stephen • LEE CHIU LEUNG 26/06/2017. Lo & P.Y. Tse as from 01/07/2017 and joined Raymond T.M Lau & Co. as a 沈煌華 remains as a consultant of the firm. partner as from 03/07/2017. 自2017年6月26日加入年利達律師事務謝肇元李超亮所為合夥人。自2017年7月1日不再出任謝鵬元律師自2017年7月3日加入劉德銘律師行為事務所合夥人一職，而轉任為該行顧合夥人。 • STEVENS MARK JOHN 問。 ceased to be a partner of Mayer Brown • LEHMKUHLER MARK JOSEPH JSM as from 13/06/2017. • WAN LI joined Orrick, Herrington & Sutcliffe as 麥思帆 commenced practice as a partner a partner as from 13/06/2017. 自2017年6月13日不再出任孖士打律師 of Wong, Wan & Partners as from 自2017年6月13日加入奧睿律師事務行合夥人一職。 26/06/2017. 所為合夥人。萬利 • STRECKER PAUL 自2017年6月26日成為新開業黃志豪， • LUI FUNG MEI YEE MABEL joined Shearman & Sterling as a 萬利律師事務所合夥人。 ceased to be a partner of Winston & partner as from 02/06/2017. Strawn as from 01/07/2017 and joined 自2017年6月2日加入謝爾曼‧思特靈 • WONG WAI-SAN CASSANDRA Withers as a consultant on the same 律師事務所為合夥人。 ceased to be a partner of Chow Wong day. & Lawyers as from 16/06/2017 and 呂馮美儀 • SUEN KAI CHING commenced practice as the sole 自2017年7月1日不再出任溫斯頓律師 commenced practice as the sole practitioner of CW Lawyers on the 事務所合夥人一職，並於同日加入衛 practitioner of K.C. Suen & Co. as from same day. 達仕律師事務所為顧問。 19/06/2017. 王慧珊孫啟政自2017年6月16日不再出任周王律師事 • MARQUIS VERONIQUE ELISABETH 自2017年6月19日獨資經營孫啟政律師務所合夥人一職，並於同日獨資經營王 joined Eversheds as a partner as from 事務所。慧珊律師事務所。 06/07/2017. 自2017年7月6日加入安睿國際律師事 • TANG KAM WING • WONG CHI HO RAYMOND 務所為合夥人。 ceased to be a partner of Winston & commenced practice as a partner Strawn as from 01/07/2017 and joined of Wong, Wan & Partners as from • MOLONEY PAUL Withers as a partner on the same day. 26/06/2017. became a partner of Eversheds as 鄧錦榮黃志豪 from 06/06/2017. 自2017年7月1日不再出任溫斯頓律師自2017年6月26日成為新開業黃志豪，自2017年6月6日成為安睿國際律師事事務所合夥人一職，並於同日加入衛達萬利律師事務所合夥人。務所合夥人。仕律師事務所為合夥人。 • WONG WAI CHUNG • NG MAN HO DICKSON • TANG PETER ceased to be a partner of Vincent T.K. joined H.M. Chan & Co. as a partner as ceased to be a partner of Poon & Cheung, Yap & Co. as from 04/07/2017. from 03/07/2017. Cheung as from 01/07/2017 and 黃偉忠吳文浩 remains as a consultant of the firm. 自2017年7月4日不再出任張葉司徒陳自2017年7月3日加入陳浩銘律師事務鄧世明律師事務所合夥人一職。所為合夥人。自2017年7月1日不再出任潘繼洪, 張宗泉律師行合夥人一職，而轉任為該行顧問。

74 www.hk-lawyer.org August 2017 • CAMPUS VOICES 法學院新聞 CAMPUS VOICES 法學院新聞

Staff Seminar: The Insurance Act 2015 – Reform of 教員研討會: 英國《2015年保險法》– Warranties and Other Risk Control Provisions 保證條款及其他風險緩解條款的改革 On 5 June 2017, the School of Law of City University of Hong Kong 2017年6月5日，香港城市大學（城大）法律學院榮幸 (“CityU”) was honoured to have Professor Baris Soyer, Professor of the 地邀請到英國斯旺西大學法律學院Baris Soyer教授在教 College of Law at Swansea University, to give a staff seminar on “The 員研討會上發表題為「英國《2015年保險法》– 保證 Insurance Act 2015 – Reform of Warranties and Other Risk Control Provisions”. 條款及其他風險緩解條款的改革」的演講。 Dr. Xing Lijuan, Assistant Professor of the School of Law and Associate 研討會伊始，城大法律學院助理教授、香港海事及運 Director of Hong Kong Centre for Maritime and Transportation Law, 輸法研究中心副主任邢立娟博士介紹了Baris Soyer教 introduced Professor Baris Soyer at the beginning of the seminar. 授。Soyer教授現為英國斯旺西大學航運與貿易法系主 Professor Soyer is currently the Head of the Department of Shipping 任並執教海事法、海上保險法和油氣資源法三門法律碩 and Trade Law at Swansea University and is involved in the teaching of 士課程。他亦擔任國際海商法學術期刊編輯，以及《航 Admiralty Law, Marine Insurance Law, and Oil and Gas Law: Contracts and Liabilities in the LLM programme. He is one of the editors of the 運與貿易法及波羅的海商法季刊》編委會成員。 Journal of International Maritime Law and is also on the editorial board 在對英國《2015年保險法》的立法背景及英國《1906 of Shipping and Trade Law and Baltic Maritime Law Quarterly. 年海上保險法》的主要問題進行簡要介紹之後，Soyer After general introduction to the background of the Insurance Act 2015 教授從風險評估與管理的角度重點探討了英國《2015 and the main problems of the Marine Insurance Act 1906, Professor 年保險法》改革的可行性。 Soyer mainly discussed the appropriateness of the reforms introduced by the 2015 Act from risk assessment and management perspective. 研討會期間，Soyer教授還就改變對保險法和實踐的 During the seminar, Professor Soyer also offered a critical analysis on the 潛在影響進行了批判性分析。Soyer教授說：「改變 potential impact of the changes on insurance law and practice. “A degree 帶來的一定程度的不確定性將不可避免，特別是英國 of uncertainty will be inevitable as a result of the changes especially with 《2015年保險法》第十一條的適用；但改變無疑會提 regard to the application of s. 11 of the Insurance Act 2015; but changes 高被保險人的地位。」他亦相信英國《2015年保險 will undoubtedly improve the position of the assured,” Professor Soyer 法》將加速其他實行普通法的司法管轄區（例如香港） said. He also believes that the Insurance Act 2015 will accelerate the 的保險法改革的進程。 reform process in other common law jurisdictions such as Hong Kong.

www.hk-lawyer.org 75 • August 2017

CUHK Law Organises Symposium on “The International Criminal Responsibility of War’s Funders and Profiteers” The Faculty of Law of The Chinese University of Hong Kong organised a Symposium on “The International Criminal Responsibility of War’s Funders and Profiteers” on 23–24 June 2017 at its Graduate Law Centre, Central. The symposium examined the criminal accountability of individuals, businesses and governments that finance and profit from armed conflict. Around 40 scholars and practitioners from across the world participated to explore and discuss issues and challenges relating to the participation of economic actors in international crimes such as war crimes and crimes against humanity.

On the first day of the Symposium, the Vice-President and Judge of the Welcoming remarks by Prof. Nina Jørgensen of CUHK Law. Appeals Chamber of the International Criminal Tribunal for the Former 中文大學法律學院Nina Jørgensen教授致開幕辭。 Yugoslavia (“ICTY”) Judge Liu Daqun delivered the keynote address looking into the differentiation of the modes of participation, the financing 中文大學法律學院舉辦「戰爭資助者及 of terrorism convention and the ICTY jurisprudence. The Symposium was 獲利者的國際刑事責任」研討會香港中文大學法律學院於2017年6月23至24日在中環法律學院研究生部舉辦了「戰爭資助者及獲利者的國際刑事責任」研討會。研討會探討了資助和從武裝衝突獲利的個人、企業和政府的刑事責任。來自世界各地約40位學者和執業者，在會上就國際罪行(如戰爭罪行和危害人類罪行)中經濟行為者的參與相關的問題和挑戰，進行探討和討論。

前南斯拉夫問題國際刑事法庭上訴分庭副庭長兼法官劉大群法官在研討會第一天發表了主題演講，探討了參與方式的差異、資助恐怖主義公約和前南斯拉夫問題國際刑事法庭的判例。研討會之後舉行了五個全體 The Vice-President and Judge of the Appeals Chamber of the ICTY Judge Liu Daqun delivers the keynote address. 會議，討論了「第二次世界大戰：歐洲和亞洲的資助前南斯拉夫問題國際刑事法庭上訴分庭副庭長兼法官劉大群法官發表了主題演講。者、獲利者和奴役勞動」、「衝突區的武器、藝術、

Speakers explore and discuss issues and challenges relating to the participation of economic actors in international crimes. 講者在會上就國際罪行中經濟行為者的參與相關的問題和挑戰進行探討和討論。

76 www.hk-lawyer.org August 2017 • CAMPUS VOICES 法學院新聞

followed by five plenary sessions addressing 藥物和現金流通」、「經濟戰 topics on “The Second World War: Financiers, 爭罪行和危害人類罪行」、 Profiteers and Slave Labour in Europe and 「個人、企業和組織的刑事責 Asia”, “Arms Fairs and ‘Flying Money’: The 任」和「索回戰爭利益：沒收 Circulation of Weapons, Art, Drugs and Cash in Conflict Zones”, “Developing the Available 與賠償」。研討會最後由美國 Law: Economic War Crimes and Crimes 大屠殺紀念博物館防止滅絕種 against Humanity”, “Where should the Buck 族中心、海牙全球正義研究所 Stop? Criminal Accountability of Individuals, 傑出研究員兼前美國全球司法 Corporations and Organizations” and 問題巡迴大使Stephen Rapp的 “Recovering the Profits of War: Forfeiture and 演說作結。 Reparations”. The closing of the Symposium Closing remarks by Ambassador Stephen Rapp, Distinguished was marked by Ambassador Stephen Rapp, Fellow at The Hague Institute for Global Justice. 海牙全球正義研究所傑出研究員Stephen Rapp大使發表閉幕演說。 Distinguished Fellow at the United States Holocaust Memorial Museum’s Centre for Prevention of Genocide and at The Hague For details of the Symposium, please visit the official website: Institute for Global Justice, and former US 有關研討會的詳情，請瀏覽官方網站： Ambassador-at-Large for Global Justice https://goo.gl/5LXABW Issues.

Pathways Programme with King’s College London 港大與倫敦大學國王學院開辦銜接課程 The Faculty of Law at The University of Hong Kong has entered into a 香港大學法律學院與倫敦大學國王學院潘迪生法律學 partnership with the Dickson Poon School of Law at King’s College London 院合作，於港大LLB下開辦銜接課程。少數港大LLB (“KCL”) under the HKU LLB Pathways programme. The programme offers 學生將有機會在本科課程的最後一年，在倫敦大學國 a small number of HKU LLB students the opportunity to spend what would 王學院修讀LLM課程，完成後同時取得港大LLB及倫 have been the final year of their undergraduate studies reading for an LLM at KCL. The students will then graduate with both an LLB from HKU and 敦大學國王學院LLM資格。 an LLM from KCL. 銜接課程於2017/18學年開始，將錄取三名希望在 Pathways will commence in the academic year 2017/18 and aims to admit 全球頂尖法律學院開始LLM課程的優異學生。有興 three high-achieving LLB students who would like to start on an LLM 趣修讀銜接課程的LLB學生，可於第二學年第一學期 programme in one of the leading law schools in the world. Interested 結束時提出申請。完成銜接課程後，學生將在四年內 LLB students will make their application for Pathways at the end of the first semester in their second year of study. On successful completion of 完成學位(而非五年)，並擁有LLB和LLM資格。 Pathways, students will finish their studies in four years instead of five with 在互惠的基礎上，在倫敦大學國王學院修讀英國法律 both an LLB and LLM qualification. 與香港法律課程的LLB學生，亦可於第三學年在香港 On a reciprocal basis, students enrolled in the LLB in English Law & Hong 大學修讀LLM學位。 Kong Law programme at KCL may study for an LLM degree at HKU in the third year of their studies. 港大法律學院副院長(國際事務)兼英文學院榮譽副教 Dr. Marco Wan, Associate Dean (International Affairs), Associate Professor 授温文灝博士說：「修讀銜接課程的學生，將在香港 of Law & Honorary Associate Professor of English said: “Students on the 大學和倫敦大學國王學院上課，能獲取真正全球性的 Pathways programme obtain a truly global legal education by spending 法律教育。我們很高興透過該課程與潘迪生法律學院 time at both HKU and KCL. We are excited about deepening our ties with 加強聯繫，並期待繼續提升國際合作水平。」 the Dickson Poon School of Law through the programme, and look forward to taking our international collaborations to the next level.” 倫敦大學國王學院國際及對外關係副院長John Phillips教授表示：「學院很高興能與優秀的港大法律 Vice Dean for International & External Relations of KCL Law School, Professor John Phillips, said: “The School is delighted to enter into this 學院達成互惠協議，為兩所大學最傑出的學生提供機 reciprocal agreement with the excellent Faculty of Law at HKU, which 會，在不同的法律管轄區和文化下學習。法律問題越 will give the best students from both universities an opportunity to study 趨全球化，學生擁有新的國際視野和經驗，對我們十 in a different legal jurisdiction and culture. It is very important to us that 分重要。」 students have new perspectives and experiences in a world where legal problems are increasingly global in nature.”

www.hk-lawyer.org 77 • August 2017

Formula E Hong Kong ePrix set to Roar Back to the Heart of Hong Kong in December 2017

Interview with Kenneth Ng, President of the Hong Kong Automobile Association and Chairman of the Formula E Working Group

By Cynthia G. Claytor

n 2 and 3 December 2017, Formula In anticipation of the Hong Kong ePrix 2. What type of work went into OE, the world’s premiere electric street 2017, Kenneth Ng, President of the pulling off the first ever Formula racing series, will roar back into the Hong Hong Kong Automobile Association and E Hong Kong ePrix? What Kong with two full days of world-class Chairman of the Formula E Working were some of the challenges of introducing the race in Hong racing. This will be the second ePrix Hong Group, as well as Former Law Society Kong? Kong will host and will kick-start Formula Council Member, speaks to Hong E’s fourth season. Kong Lawyer about his involvement in Motor racing has no priority in Hong the Formula E Hong Kong ePrix 2016, Kong as it is still perceived as a rich The Hong Kong ePrix 2016 was the first the upcoming race and his hopes for man’s game. Against that background, time in over 30 years that the City hosted e-racing in Hong Kong in the future. it did involve a few years’ effort in a premier motorsport event and achieved persuading the Government to what many thought would be impossible 1. Can you tell us how you became appreciate that this is good for Hong – hosting an international open-wheel, involved with the Hong Kong Kong. One can imagine, and appreciate, Automobile Association and the single-seat racing event in the heart of their reluctance in endorsing something Formula E Working Group? Hong Kong. which has no precedents in Hong Kong Before I retired, I sat on committees of – a street race like Monaco or, closer to several NGOs, including the Hong Kong home, Macau. Once we had the Tourism Automobile Association (“HKAA”). I Commission’s policy support in hand, the have always had a passion for cars. Last coordination for approvals/licenses from year, when Formula E first came to the various Government departments Hong Kong, the HKAA was the technical should have been all downhill. However, supporter of the event and, as an HKAA that is not the way it unfolded due to the General Committee member actively lack of precedents. I am so glad that we involved in the race preparation, I was pulled this off and in the end all of the appointed as the Chairman of the Government departments were happy Formula E Working Group, overseeing a with the way the event turned out. range of operational matters.

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3. In a previous issue of the journal, more than two years. In Hong Kong, most penalty, stop-start penalty etc, will you said “Hong Kong needs more people do not need cars to commute have to be imposed during the race positive energy these days and we as our public transport systems are so and cannot normally wait until the race hope that [the firstFormula E Hong good. Cars, to me, and I am sure to a finishes. Kong ePrix] is just the beginning!” lot of us, are just toys. Suffice it to say, I 7. If you were Elon Musk, what would What else do you have in the always keep more than one car, with one works? you do? of them having a manual gear, which The HKAA has been working closely with gives me a lot of driving pleasure. I would be very busy figuring how to the Homes Affairs Bureau to build an spend the huge amount of money I have e-racing track within the compound of 5. What’s your take on the future of earned and may not have time to attend the Kai Tak Sports Park. We have been electric vehicles globally and in this interview. Hong Kong? told that our track design will be included On a more serious note, I think I would It is definitively the future in Hong Kong, in the tender documents available to the leverage the high profile I had gained and if not for the reduced concession bidders for consideration. This is a giant to push as hard as possible for the introduced recently by the Government, step. concept of smart mobility/smart city the future likely would have come Longer term, we are lobbying the or autonomous driving. I believe this earlier. It should be a global trend too, Government, LegCo members and will be the ultimate solution to traffic but I cannot speak for every country as political parties to support our proposal congestion, which all major cities in the electric cars still have issues to overcome to build a permanent multi-purpose world are all trying to solve to no avail. (eg, recharging, and thus are not so motorsports circuit at the proposed reassuring for long distance driving). 8. What happens if the Hong Kong reclamation off Sunny Bay in Lantau Government withdraws the Island. We have no desire to compete 6. How did you go from law to subsidies for electric vehicles in for land, which can be used for building automobiles? What relationship Hong Kong – what impact may houses, hospitals, schools etc., but that do they have in your mind? this have? piece of reclamation has already been I did not actually move from one to the It will undoubtedly slow down the designated for recreational purposes, as other, and there really is no relationship, environmental protection process. I opposed to residential, due to the sound as I see it, between my work in each question the wisdom behind the recent pollution caused by aircrafts. However, area. However, if we were to talk about move by the Government, which does not this will be a very long and uphill battle. motorsports and the law, then I can see sit well with the overall environmental the relationship. 4. What car(s) do you drive outside policy. If the government feels that there of work? Are any of these electric I have been a Racing Steward for several are “enough” electric cars on the road in cars? Any favourites? years. Last year, I was the National Hong Kong and therefore withdraws or Steward for the Formula E Hong Kong reduces the tax concessions, what does it I am very old fashioned and l like the ePrix. Judging the rights or wrongs of expect prospective car owners to do? It normal combustion engine, and the drivers as a Race Steward is similar to is not wrong, but a little unrealistic, to raw sound it produces. I don’t have a judging cases in a court of law as racing expect them to think from a high moral favourite car – or I don’t have a favourite is a rules-based sport. Although stewards ground for the global environment when car for long – as I seldom own a car for cannot normally reserve judgment picking their next new car. As I said, it is because penalties, such as drive through not wrong, but just unrealistic. n

www.hk-lawyer.org 79 • August 2017

Formula E 2017年12月載譽重臨香江

專訪香港汽車會會長兼Formula E工作小組主席伍成業

作者 Cynthia G. Claytor

界頂級街道賽事 —「國際汽聯 1. 你如何加入香港汽車會和Formula 世電動方程式錦標賽」(Formula E工作小組的工作？ E)將於2017年12月2至3日載譽重我退休前參加了幾個非政府組織的委員臨，一連兩日在香港舉行兩場賽事。會，包括香港汽車會（HKAA）。我一直香港今年第二次舉行這項車壇盛事，熱愛汽車。去年，Formula E首度在香港舉為第四季世界頂級街道賽車揭幕。行，香港汽車會擔任技術支援。作為該會去年首辦的Formula E香港站賽事是逾的常務委員會成員，我積極參加賽事的籌 30年來香港首次舉辦國際頂級賽車項備工作，獲委任為Formula E工作小組主目，在香港鬧市中出現國際性單座位席，負責管理賽事運作。賽車，實現了不可能的任務。 2. 首次在香港舉辦Formula ePrix，做香港汽車會會長兼Formula E工作小了什麼準備工作？在香港舉行賽事組主席伍成業是律師會前理事會成的挑戰是什麼？員。他在香港ePrix 2017前接受本刊賽車被視為富人的遊戲，因而在香港不受重訪問，介紹他在Formula E 香港ePrix 視。在這個背景下，說服政府活動對香港有 2016的工作、即將舉行的賽事，以利，確實需要幾年的努力。可以想象政府不及他對電動車在香港的期望。願意批准舉行在香港史無前例的比賽 - 摩納

80 www.hk-lawyer.org August 2017 • LAWYERS AT LEISURE 律師閒情

哥或者澳門般的街頭賽車。我們獲旅遊 5. 你對電動車在全球和香港的未來事務署的政策支持後，政府各部門的批有何看法？准／牌照協調理應變得順利。然而，由電動車肯定是香港未來的趨勢，若非因政於史無前例，所以過程並非一帆風順。府最近減少稅務優惠，這個未來可能會更很高興我們終於做到了，最終所有政府早出現。這也是個全球趨勢，但因國家而部門都對活動感到滿意。異，因為電動車還有問題待解決(例如充 3. 在過往一期《香港律師》中，你電，所以長途駕駛並不那麼安心)。說過：「香港最近需要更多正能 6. 你怎樣從法律界轉到汽車業？你量，我們希望這個(Formula E 香覺得兩者之間有什麼關係？港ePrix)只是個開始！」你還參與了什麼工作？其實我並沒有轉到另一個領域，兩者之間沒有任何關係。但是，如果我們談賽車運香港汽車會一直與民政事務局緊密合動和法律，那麼我看到兩者之間的關係。作，在啟德體育園內興建一條電動賽車賽道。我們獲悉，我們的軌道設計將包我已擔任裁判多年。去年，我擔任含在招標文件中，供投標人考慮。這是 Formula E 香港ePrix的國家裁判。作為賽重大的一步。車裁判判決車手的對錯，就像在法庭審判案件，因為賽車是必須遵守規則的運動。長遠而言，我們會遊說政府、立法會議不過賽車裁判不能延期判決，因為所有懲員和政黨支持我們的建議，在大嶼山欣罰，如限速穿越、罰開停等，都要在比賽澳填海興建永久多用途賽車場。我們不期間進行，通常不能在比賽結束後才判想競爭可用於建屋、醫院、學校等的土決。地，但由於飛機污染，這片填海工程已被指定用作康樂用途，而非住宅用途。 7. 假如你是Elon Musk，你會怎樣但這將是一場漫長而艱苦的戰鬥。做？ 4. 你在工作以外都開什麼車？有沒我會忙於考慮如何花光贏取的巨額獎金，有電動車？有最喜歡的車嗎？可能沒有時間出席這次訪問。我很傳統，喜歡一般燃油引擎和它發出更重要的是，我認為我會利用自己的知名的粗獷聲音。我沒有最喜歡的車，或者度，大力推動智能移動／智能城市或自主說我很久沒有最喜愛的車，因為我很少駕駛的概念。我相信這將是交通擠塞的最擁有一輛車超過兩年。在香港，大部分終解決方案，世界各大城市都試圖解決這人出行不需要開車，因為我們有完善的個問題。公共交通。對我來說，我相信也對很多 8. 假如香港政府取消對電動車的補人來說，汽車只是玩具。我總是擁有不貼，會造成什麼影響？止一輛車，其中一輛是「棍波」，因為這無疑將減慢環境保護的進程。我質疑政它帶給我很多駕駛樂趣。府最近採取的措施，並不適合整體環境政策。若政府覺得香港道路上的電動車已經「足夠」，因而撤銷或減少稅務優惠，政府預計車主會怎樣做？希望他們在挑選下一輛新車時，從全球環境的道德高地考慮，這並沒有錯，但有點不切實際。 n

www.hk-lawyer.org 81 • August 2017 Stepping Into the Unknown

By Isabelle Ma

As I buttoned my crisp white uniform and tied my apron round my waist, I looked at myself in the mirror and thought, “This is it!”. I was finally taking my first steps towards a career as a pastry chef. That was my first day at FERRANDI | L’école de Gastronomie in Paris.

A Heritage of Food Chinese in those days. Law and My Journey Down a It was a long journey to reach that day I grew up watching British television Different Path in FERRANDI. The appreciation of food programmes, which had a strong My mum never went to school, but like and cooking is in my blood; my parents emphasis on cookery shows. I would most Asian parents wanted the best for me emigrated to the UK over 40 years ago admire Delia Smith on television teaching and had high hopes. In my family’s eyes, and opened the only Chinese restaurant her viewers how to make the perfect there was no doubt I would be going down on the Shetland Isles, in Scotland, where Victoria sponge cake. I would linger on the professional degree path, it was just I was born. I grew up in the kitchen. the dessert chapters in mum’s cook a question of which degree: accounting, My mother, a formidable woman, was books willing the photos to come to life. medicine or law. Spurred on by witnessing the chef and cooked all the Chinese I remember my first ever dessert was how hard my parents worked to give me dishes herself. From a young age, I was a disastrous banana cake. As a typical a better future (and watching copious immersed on a daily basis in a multitude Asian family, we did not have an oven at episodes of Ally McBeal), I chose law. I was of aromas that tickled my nose and taste home; we had a rice-cooker and a mega the first generation to go to university and buds. We moved south to Hampshire powered gas cooker for the wok. I naively the first to study law in my family. Although when I was four, where my parents set thought that a microwave-oven was I studied hard for my degree, my passion up an open kitchen Chinese takeaway, the same as an oven so when the recipe for cooking never dissipated. At university, which was quite avant-garde at the instructed me to bake for 25 minutes, finally equip with an oven, I would host time. I remember many weekend nights that is exactly what I did – 25 minutes dessert parties and that was the first time I where my parents would stow me away full power in the microwave. Mum did not experienced seeing the delight on people’s in a little cubby hole directly under the enjoy scraping the charred remnants of faces from tasting desserts that I had counter and I would hear customers mull banana cake from the “oven”. This minor made. It was immensely satisfying and I over the menu. I would be nodding off to setback did not deter me and instead I was hooked on that feeling. sleep with the sound of my dad shouting focused on Asian desserts with mum’s As with most other professional careers, orders and mum’s wok banging against assistance and we would make steamed once you are on the legal track it’s pretty the gas cooker. I guess that was the life sponge cakes, and crispy peanut puffs for hard to get off and you follow what your for most first generation British-born Chinese New Year. peers do. Therefore, after law school, I

82 www.hk-lawyer.org August 2017 • ASIDE 隨筆

did an LLM degree and then came back job, which was respected in society; Internship to Hong Kong to do my PCLL at HKU. I whereas a pastry chef is not a celebrated If we thought that being at school was secured a training contract and qualified profession in Hong Kong. When I told tough, we were all in for a shock as soon as a solicitor. Throughout my legal career, I most people my aspirations, they raised as we started our internships. I secured an continued to bake and thanks to my years their eyebrows and asked why I wanted internship at Hôtel Barrière Le Fouquet’s, as a trainee, became very resourceful with to “downgrade“ myself. However, I knew Paris, a five-star hotel on the Champs- researching on the internet for dessert I would regret it if I did not take the leap Élysées which also housed a Michelin- recipes and also looking beyond the recipe because I really loved to bake and be starred restaurant, Le Diane. As soon as I and into the science and technicality creative. If I stayed in law, I could be stepped into the kitchen on the first day, behind it. I would accept birthday cake financially stable, but I would not be it was all hands on deck, with the chef orders and enjoy the huge sense of happy. I knew I would always wonder shouting commands in French. Although accomplishment and satisfaction when “what if?”. So after a year of deliberating, my French was conversational, I had not friends expressed how beautiful and tasty I enrolled in one of the best culinary prepared myself for how quickly they the cakes were. schools in France, FERRANDI | L’école de talked and the special kitchen language Gastronomie in Paris for their intensive I believe life is a journey and we are that was unique to each person. Everyone full immersion pastry course. I would be presented with a multitude of crossroads had a different word or description for spending a year in one of the culinary where we make choices that take us doing the same task. It was day one of capitals of the world learning the art of on different paths. One of my defining being a trainee again, only everything dessert making. crossroads manifested itself when I went to had to be done yesterday and to absolute New York for a holiday and upon a friend’s Culinary School perfection because your client was recommendation, went to the French going to eat it immediately. Stress levels Culinary Institute’s adjoining restaurant for The course at FERRANDI entailed were high, but I felt so alive, plating a dinner. The students of the culinary school five months of hands-on classes and hundred desserts for banquets within a would cook the meal for diners. The food afterwards the school would arrange a set timescale. Everyone was working as was impeccable and made me realise that 6-month internship for each of us at our a team and patting each other on the a career as a chef did not have to start chosen hotel/patisserie. back when a particularly busy service when you were in your teens apprenticing A typical school day would start at had ended. This was what being a chef in Michelin starred kitchens. A seed was 8 AM, when we would have to clean was all about, and I loved it. Working in planted in my head that it was not too late and disinfect the kitchen before the a professional kitchen you learn so much for me to gain the skills needed to be a chef chef would demonstrate how to make more compared to school because you are from a professional culinary school. a certain dessert and we would then working alongside people who have been have to replicate it. The course was in the profession for decades and can give called “full immersion” because it would you pointers that no recipe book or teacher imitate the professional working kitchen will. environment. Unlike some of the other culinary schools where there were Back to Hong Kong kitchen assistants to do all the ground In what seemed like a flash, I attended work, we were treated like kitchen staff my graduation ceremony in FERRANDI and had to do our own cleaning, stock which brought my adventure in Paris to an taking, manning the oven and constantly end. I had spent a year in one of the most respond to the chef’s every command beautiful, magical and romantic cities in with “Oui Chef!”. Our day would end at the world. It seemed somewhat of an anti- 4 PM with one final big clean of the climax to then come back to Hong Kong. kitchen; mopping and disinfecting the However, Paris was just a spring board, floor, cleaning the fridges, oven and sink I now had a year of pastry knowledge and ensuring we had enough stock for The decision to leave under my belt and I was eager to put my the following day. law and go to culinary knowledge into practice in Hong Kong. school was tough, partly Time at school flew by so quickly, but One key aspect I learned from the chefs because culinary school I had the opportunity to meet like- in Paris is that if you are passionate about is expensive, so I had minded people from all backgrounds – something, then you never feel you know to save the money, but teachers, graphic designers, accountants, it all, there are always new techniques to mostly because I was pharmacists and even a professional learn and flavour combinations to play afraid of stepping into wrestler. Although we had very different with. the unknown. I had a backgrounds and nationalities, we all had I managed to secure a job at the two stable professional a common passion: pastry. Michelin starred restaurant, Caprice, and

www.hk-lawyer.org 83 • August 2017

under the tutelage of French pastry chef, Nicolas Lambert, my pastry skills were taken to another level. The discipline 踏進未知的領域 needed to consistently produce plate after plate of top-grade, wow-factor desserts is 作者 Isabelle Ma absolutely incredible. My time at Caprice was invaluable, not just because I got to learn from such a talented chef, but also 我換上潔白的制服，腰上綁上圍 as Cantonese was frequently used in the 裙，看看鏡子，就是這樣了！我終 kitchen, I got to know and become friends 於踏出糕點師生涯的第一步。那 with many Hong Kong pastry chefs. 是我在巴黎FERRANDI | L’ecole It was during my time at Caprice that de Gastronomie 的第一天。 I realised I wanted to explore my own creativity and not replicate the executive chef’s creativity. This is why I have set-up my own brand, “CAKED_by_Isabelle”, to see where my own creativity would take 美食世家 me. I design and make desserts for events 入讀FERRANDI前的道路很漫長。美食烹 and I am able to utilise my years of pastry 飪對我來說是與生俱來，我的父母40多年 knowledge and skills to give client’s 前移居英國，在蘇格蘭昔德蘭群島開了島 products that are not only aesthetically pleasing but also gives you a firework of 上唯一的中餐館。我就在那裏出生，在廚 flavours and textures on your palate. 房長大。我媽媽負責煮所有中菜。我自小就在五味雜陳的環境中長大。四歲那年， The last couple of years for me have certainly been life changing and 我們南遷至漢普郡開設中餐外賣店，當時 opened my eyes to so many wonderful 來說是嶄新的生意。我記得週末的晚上，用心學習，但對烹飪的熱誠並沒減退。在 experiences; experiences that have 父母把我放在櫃枱下面，我聽到客人在揭大學裏，我終於有一台焗爐。我會舉行甜 on occasions challenged me both 菜單，就這樣在父親的叫喊聲和母親的炒品派對，首次看到別人吃到我做的甜品時 mentally and physically but the sense 菜聲中睡著。我想那個年代英國華人的生 of accomplishment that comes with 面上的喜悅，那種滿足感深深吸引著我。活大多是這樣。 knowing I have pushed myself and not 正如大多數專業，法律界一旦入行便很難 just settled in my comfort zone makes it 我看英國電視長大，特別喜歡看烹飪節離開。法律學院畢業後，我考取了LLM學 all worthwhile. 目。最欣賞Delia Smith在電視上教觀眾如位，然後返港在香港大學修讀PCLL，後 I still meet my friends and ex-colleagues 何做完美的海綿蛋糕。我會盯著媽媽食譜來當實習律師，再獲取律師資格。我一路 in law and I do wonder where I would be if 內的甜品，幻想它們是真的。我做的第一 I had remained. Maybe I would be working 繼續做餅，實習律師的經驗令我網上搜查 in-house now, or as a senior associate in 個甜品是難吃極了的香蕉蛋糕。我們是個技巧了得，上網尋找甜品食譜之餘，亦進 private practice. Nevertheless, it is only a 典型亞裔家庭，家裏沒有焗爐，只有電飯一步鑽研食譜背後的科學和技術。我會接 fleeting thought. I do not regret studying 煲和煤氣爐。我以為微波爐和焗爐是一樣生日蛋糕的訂單，享受朋友說蛋糕漂亮好 and practicing law. It has taught me so 的，食譜說焗25分鐘，我就用微波爐高熱吃一刻的無比成功感。 many life skills and allowed me to meet 焗25分鐘，結果香蕉蛋糕變成黑焦。這個 lifelong friends. However, I am also happy 我相信生命是一趟旅程，到十字路口要作小小的挫折未能打擊我的鬥志，之後我在 where I am now. Not because I am making 出選擇，走上不同的路。其中一個十字路 a lot of money. Not because I have risen 媽媽協助下專心做亞洲甜品，農曆新年時口是我去紐約度假時，在朋友建議下去了 up the social ladder, but because I found 會蒸鬆糕和花生角仔。 something I was passionate about and 一所法國烹飪學校附屬的餐廳吃飯。烹飪 pushed myself to step into the unknown. 法律與截然不同的路學校的學生為客人做菜。當晚的食物無可 I hope others will realise as well – that 挑剔，令我意識到，要做廚師不一定要自我媽媽未讀過書，但像大多數亞裔父母， they too have it within themselves to step 小在米芝蓮餐廳當學徒。我去專業烹飪學對子女寄予厚望。家人認為我一定要上大 into the unknown and see where life takes 校學習廚藝，還為時不晚。 them. As one of my favourite authors, 學，成為專業人士，問題只是當會計師、 Paulo Coelho puts it, “Remember our 醫生或律師。眼見父母的苦心栽培(及追看離開法律工作去上烹飪學校的決定不易， dreams and fight for them. There is just Ally McBeal)，我選擇了讀法律。我是家中部分因為烹飪學校所費不菲，我得儲錢， one thing that makes your dream become 第一代大學生，讀法律的第一人。雖然我但主要是因為我害怕走進未知的領域。我 impossible: the fear of failure.” n

84 www.hk-lawyer.org August 2017 • ASIDE 隨筆

有穩定的專業工作，在社會上備受尊重，起工作，給你食譜沒有的指示，學到的東作，而不是複制行政主廚的創作。於是我而糕點師傅在香港並不是顯赫的職業。當西比學校多得多。創立了自己的品牌CAKED_by_Isabelle。我我告訴別人我的理想時，他們會問：為何為活動設計和製作甜品，利用多年的糕點要「貶低」自己？但是，我知道如果不踏返港知識和技巧，為客戶製作漂亮而口感豐富出這一步，我會後悔，因為我真的很喜歡在巴黎的一年很快過去，我參加了的糕點。烘焙和創造。留在法律界我會財政穩定， FERRANDI的畢業禮。我在世界上最美過去兩年，我的生活起了變化，得到不少但我不會開心。經過一年的認真考慮，麗、最神奇、最浪漫的城市渡過了一年，機會，偶爾或會身心俱疲，但為了當中的我報讀了法國最好的烹飪學校之一：巴黎是時候回港。成功感，一切都是值得的。 FERRANDI | L’Ecole de Gastronomie的不過，巴黎只是跳板，我現在有一年的糕密集全面糕點課程。我會在世界烹飪首都我仍與法律界的朋友和舊同事保持聯絡。點知識，渴望把知識付諸實踐。我在巴黎生活一年，學習甜品製作藝術。有時會想，假如當初沒有離開，也許現在學到，如果你對某件事情充滿熱情，就永當企業內部律師，或私人執業。不過，我遠都覺得知識不夠，總是有新技巧、新口烹飪學校沒有後悔讀法律和執業。它讓我學懂了許味可以學習。 FERRANDI的課程為期5個月，之後學校多生活技能，遇到終身摯友。現在我很快安排我們在所選的酒店或糕點店實習6個我在米芝蓮兩星餐廳Caprice找到工作，在樂，不是因為我賺很多錢，不是因為我位月。法國糕點師Nicolas Lambert的指導下，我高權重，而是因為我找到熱愛的東西，勇的糕點技巧更上一層樓。糕點製作需要堅於踏進未知的領域。我希望其他人也會課堂通常由上午8時開始，首先清潔消毒持不懈地不斷嘗試。我在Caprice的經驗很意識到 - 他們也可踏進未知領域，跟著廚房，待主廚來示範如何做某款甜品，寶貴，不僅因為從才華橫溢的廚師身上學生命走。正如我最喜歡的作家之一Paulo 然後我們就跟著做。課程模仿專業廚房的習，而且因為在廚房裏說廣東話，我也結 Coelho說：「記住我們的夢想，為它們而工作環境，不像有些烹飪學校有助理處理識了許多香港糕點師傅。戰。只有一件事讓你的夢想變得不可能：基礎工作，我們就像廚房員工一樣，必須恐懼失敗。」 n 自己清潔、點貨、顧焗爐和回答主廚的指在Caprice工作期間，我想探索自己的創令。每日最後大清潔後(消毒地板、清潔冰箱、焗爐和洗碗盆，確保明天有足夠用料)，課堂約下午4時結束。

在學校的時間轉眼飛逝，我有機會認識不同背景和國籍但志同道合的朋友，他們正職有老師、平面設計師、會計師、藥劑師，甚至職業摔角手，我們有著一個共同興趣：糕點製作。

實習期我們認為在學校學習已經不易，怎料實習更加困難。我在巴黎Hôtel Barrière Le Fouquet’s酒店實習。這是一家位於香榭麗舍大道上的五星級酒店，設有一家米芝蓮星級餐廳Le Diane。第一天進入廚房，我就應接不下，廚師不斷用法語喊叫，雖然我懂一點日常法語，但他說話速度快，又夾雜廚房專用語，同一件事每個人用的字都不同，我還未準備好。實習的第一天，一切必須如時完美完成，因為客人吃飯時間快到了。在限時內為宴會鋪上百個甜品，壓力大透了，但我覺得很好玩。忙碌的工作結束時，廚房裏每個人都互相拍背鼓勵。在專業廚房和幾十年經驗的人一

www.hk-lawyer.org 85 • August 2017

LEGAL TRIVIA #40

This month, we focus on the prosecution of criminal offences in Hong Kong and some of the colourful prosecutors who have appeared before the courts. The questions have been prepared by Douglas Clark, Barrister. Suggestions for questions to appear in next month’s journal are most welcome.

1. Prior to the handover in 1997 what was the 6. Prior to 1 July 1997, public prosecutions in Hong Kong were official (but mostly unused) title of the Director brought in whose name? of Public Prosecutions? A. The People A. Crown Advocate B. The Government of Hong Kong B. Senior Crown Counsel C. The Queen (or King) C. Crown Prosecutor D. Hong Kong D. Queen’s Advocate 7. In the 1980s, many of the public prosecutors in Hong Kong 2. Is the DPP required by law to be a Hong Kong were from Australia. What nickname did this group of Senior Counsel? prosecutors have? A. Yes A. The Ned Kellys B. No B. The Kangaroo Courtesans C. No, but s/he must otherwise be a Queen’s/ C. The Gumleaf Mafia Senior Counsel in another Commonwealth D. The Bruces jurisdiction 8. How many Hong Kong DPPs have become High Court 3. Warwick Reid, a former senior prosecutor in Judges? Hong Kong in the 1980s was convicted of which A. 3 crime? B. 4 A. Corruption C. 5 B. Possession of unexplained assets D. 6 C. Intimidation 9. Until what year were lay prosecutors allowed to prosecute 4. True or False: In the 19th Century, the Attorney cases in the Magistrates’ Courts in Hong Kong? General of Hong Kong was permitted to accept A. 1990 private cases as well as act on behalf of the B. 1997 government. C. 2008 A. True D. They still are. B. False 10. Which London QC was the lead prosecutor in Donald Tsang’s 5. For what offences is it possible to bring a private trial for misconduct in public office? prosecution in Hong Kong? A. Claire Montgomery QC A. All offences B. Louis Malby B. Summary offences C. David Perry QC C. None D. Lord Pannick QC

Contest Rules: Answers to Legal Trivia Quiz #39 To be eligible to win a bottle of Ch. La Croizille 2007 from Global 1. B. Jury trials were commenced in Hong Kong in 1845 under the Ordinance for Regulation of Jurors Vintage Wines Centre, please send your quiz question answers and Juries. to [email protected]. The first reader to 2. B. The initial jury size in Hong Kong was 6 members. respond with the most correct answers, with no more than 3 3. C. Women only became eligible to serve on a jury in Hong Kong in 1947. incorrect responses, will be deemed the winner. The decision of Thomson 4. A. The property qualification to serve as a jury was abolished in 1851. Reuters regarding the 5. B. Coronial juries are made up of 5 jurors (s. 23, Coroners’ Ordinance). winner is final and 6. B. Trafficking in a Dangerous Drug may be tried in the District Court which has no jury. (s. 88 and conclusive. Part III of the Second Schedule to the Magistrates Ordinance (Cap. 227)). 7. D. There have never been jury trials in the District Court. 8. D. Chinese language jury trials were formally introduced in 1997. (There were some specially approved test cases before then). 9. B. Jury trials were abolished in Singapore in 1965. 10. D. Jury trials are not available in civil proceedings for seduction. 86 www.hk-lawyer.org August 2017 • LEGAL TRIVIA QUIZ 法律知識測驗

法律知識測驗 #40

本月的問題圍繞香港的刑事罪行檢控及一些家傳戶曉的檢控官。

問題由馬錦德大律師編製。歡迎建議下期問題。

1. 1997年回歸前，刑事檢控專員的正式職銜(但大多不 6. 1997年7月1日前，公訴在香港是以誰的名義提出？使用)是什麼？ A. 人民 A. Crown Advocate(皇家律師) B. 香港政府 B. Senior Crown Counsel(資深皇家律師) C. 英女皇(或英皇) C. Crown Prosecutor(皇家檢控官) D. 香港 D. Queen’s Advocate(御用律師) 7. 80年代香港有多位檢控官來自澳洲。這群檢控官暱稱為？ 2. 法律有否規定刑事檢控專員必須為香港資深大律師？ A. The Ned Kellys A. 有 B. The Kangaroo Courtesans B. 沒有 C. The Gumleaf Mafia C. 沒有，但他必須為英國御用大律師或在其他英聯邦 D. The Bruces 司法管轄區的資深大律師。 8. 幾多位香港的刑事檢控專員成為了高等法院法官？ 3. 80年代香港前高級檢察官Warwick Reid被判犯了哪 A. 3 項罪行？ B. 4 A. 貪污 C. 5 B. 管有來歷不明財產 D. 6 C. 恐嚇 9. 非專業檢控主任可在裁判法院進行檢控工作直至何年？ 4. 是非題：在19世紀，香港律政司獲允許受理私人案 A. 1990 件同時代表政府行事。 B. 1997 A. 是 C. 2008 B. 非 D. 他們仍然可以

5. 什麼罪行可以在香港以私人名義提出檢控？ 10. 以下哪位英國御用大律師在曾蔭權公職人員行為失當案中 A. 所有罪行擔任主控官。 B. 簡易罪行 A. Claire Montgomery QC C. 沒有 B. Louis Malby C. David Perry QC D. Lord Pannick QC

競賽規則：法律知識測驗#39的答案讀者如欲贏取一瓶由Global Vintage Wines Centre提供的 1. B. 陪審團審訊於1845年根據《陪審員與陪審團規管條例》開始在香港進行。 2007年Ch. La Croizille葡萄酒，請將問題答案寄交 2. B. 陪審團初時的規模有6人。 [email protected]。女性從1947年開始有資格在香港擔任陪審員。首位能提供最多正確答案(答錯的題目不得多於三題)的讀者將成 3. C. 對陪審團財產方面的限制於1851年廢除。為優勝者。湯森路透就得獎 4. A. 者所作的決定是最終及 5. B. 死因裁判法庭陪審團由5位陪審員組成(《死因裁判官條例》第23條)。不可推翻的。 6. B. 販運危險藥物可由區域法院審理，並無陪審團(《裁判官條例》(227章) 附表2第III部份第88條)。 7. D. 區域法院從沒有陪審團審訊。 8. D. 中文陪審團審訊於1997年在香港正式推行(之前有特別獲准的測試案件)。 9. B. 新加坡於1965年取消陪審團制度。 10. D. 陪審團審訊不適用於誘惑的民事訴訟。

www.hk-lawyer.org 87 • August 2017

Atrocity Speech Law: Foundation, Fragmentation, Fruition by Professor Gregory Gordon (Oxford University Press) 作者Gregory Gordon教授 (牛津大學出版社)

Chinese University Hong Kong 香港中文大學

n June, CUHK Law Professor Gregory Gordon published I“Atrocity Speech Law: Foundation, Fragmentation, Fruition”, a groundbreaking study on the law governing the relationship between hate speech and international crimes. The book, published by Oxford University Press (OUP) and with a Foreword by legendary Nuremberg prosecutor Ben Ferencz, is revolutionary in that it envisions a new paradigm for the law with its “Unified Liability Theory.” The current law is on hate speech, fragmented and does not function properly. But the Unified publishing a series Liability Theory pieces the law together and makes all the of influential parts work in relation to the other. So, for example, the speech articles on the crime of “incitement” (liability for speech before atrocity takes topic. As he was transitioning place) only applies to the substantive offense of genocide. to Hong Kong, OUP, the world’s top academic publisher, Why should it not also apply to the horrible offenses of crimes offered him a contract to write a book on this subject. against humanity and war crimes? It would under the Unified The ideas put forth in “Atrocity Speech Law” are already Liability Theory. Apart from fixing the relationship among the having an impact. The International Nuremberg Principles speech offenses, the book also proposes fixes to the individual Academy, for which Professor Gordon has served as a legal speech offenses in themselves, for example, definitively consultant, is using them for a project titled “Prevention removing causation as an element. The Chief Prosecutor for and Accountability for Hate Speech”, which seeks to find the International Criminal Tribunal for the former Yugoslavia, effective ways to monitor, prevent and punish hate speech Serge Brammertz, has described the book as “The definitive in countries around the world. He recently presented his source for prosecuting atrocity speech in international book at United Nations headquarters and at Yale University. criminal law”. Based on the UN presentation, the Office of the Adviser on Professor Gordon’s ideas germinated as a prosecutor with Genocide Prevention has proposed organising meetings with the International Criminal Tribunal for Rwanda (“ICTR”), UN policy-makers in Geneva, including the International Law where he served as Legal Officer and Deputy Team Leader Commission, to see about implementing Professor Gordon’s for the landmark “Media” cases, the first international post- ideas into human rights instruments (including a proposed Nuremberg prosecutions of radio and print media executives Convention on Crimes against Humanity by the International for incitement to genocide. For this work, he received a Law Commission). And, centering on the book, the Yale commendation from Attorney General Janet Reno for “Service Genocide Studies Program is in discussions with Professor to the United States and International Justice.” After the ICTR, Gordon about creating a traveling workshop and related he continued prosecution work for the US Department of exhibition (using photos, text and other media) that could be Justice and then served as Director of the Center for Human presented at educational and policy institutions around the Rights and Genocide Studies for the University of North world. n Dakota. In this capacity, he continued his scholarly focus

88 www.hk-lawyer.org August 2017 • BOOK REVIEW 新書速遞

港中文大學法律學院Gregory Gordon教授出版了國與國際司法服務獎」。在盧旺達問題國際刑事法庭工作後，香《Atrocity Speech Law: Foundation, Fragmentation, 他繼續在美國司法部擔任檢察工作，其後出任北達科他州大學 Fruition》一書，就仇恨言論與國際罪行之間的關係的法律規人權與種族滅絕研究中心主任，期間繼續進行仇恨言論方面的定作出了突破性研究。該書由牛津大學出版社出版，紐倫堡傳學術研究，就此議題發表了一系列具影響力的文章。來港後過奇檢察官Ben Ferencz撰寫序言，以「統一法律責任理論」設渡期間，世界頂尖學術出版社牛津大學出版社邀請他就此題目想法律的新範式，頗具革新性。目前的法律零散，未能發揮其著書。正常功能。但「統一法律責任理論」把法律結合起來，使所有「暴行言論法」提出的想法已經產生影響。Gordon教授曾擔部份相輔相成。例如，言論犯罪中的「煽動」(暴行發生前作任法律顧問的國際紐倫堡原則學院，把這個想法用於其項目出言論的法律責任)僅適用於實質的種族滅絕罪罪行。為何它「仇恨言論的預防和責任」。該項目旨在尋找在效的方式來監不適用於危害人類的可怕罪行和戰爭罪行？根據「統一法律責察、預防和懲罰在世界各國的仇恨言論。他最近在聯合國總部任理論」它就適用。除了確定言論犯罪之間的關係，該書亦提和耶魯大學介紹其著作。根據在聯合國的介紹，防止減絕種族出了對個人言論犯罪本身的修正，例如明確地排除因果關係為罪行問題顧問辦公室建議與聯合國決策者在日內瓦舉行會議，其中要素。前南斯拉夫問題國際刑事法庭前首席檢察官Serge 包括國際法委員會，考慮如何把Gordon教授的意見納入人權 Brammertz形容該書為「起訴國際刑事暴行言論的終極資料來文書(包括國際法委員會建議的《危害人類罪行公約》)。耶魯源」。大學種族滅絕研究計劃亦正以本書為中心，與Gordon教授討 Gordon教授的意念源自出任盧旺達問題國際刑事法庭檢察官論在世界各地的教育和政策機構舉辦巡迴工作坊和相關展覽時，當時他擔任法律幹事及著名「傳媒案」的副團長。該案是 (照片、文字及其他媒體)。n 紐倫堡後首宗對電台和印刷媒體高層作出的煽動種族滅絕國際起訴。Gordon教授因此項工作獲美國司法部部長雷諾授予「美

www.hk-lawyer.org 89 MICHAEL PAGE LEGAL SPECIALISTS IN LEGAL RECRUITMENT

MEET THE TEAM FINANCIAL SERVICES COMMERCIAL PRIVATE PRACTICE Legal Counsel Senior Legal Counsel, APAC Counsel Michael Page Legal services major corporates, international and leading local law firms, as well as financial services institutions on a global scale. Our consultants Legal Counsel Senior Legal Counsel, APAC Counsel are strategically specialised in focusing on legal recruitment for different aspects of the job function and industry, diversifying and maximising our recruitment are strategically specialised in focusing on legal recruitment for different aspects of the job function and industry, diversifying and maximising our recruitment › 4-8 PQE › 10+ PQE › 8 PQE coverage as a team. We have successfully placed candidates across all levels from Associates and Junior Legal Counsels, to Partners and Heads of Legal. coverage as a team. We have successfully placed candidates across all levels from Associates and Junior Legal Counsels, to Partners and Heads of Legal. › Investment Bank › US Listed Company › International Law Firm A newly created role has arisen with a reputable Our client is a reputable US listed company with operations A new senior role has arisen in the well-established A newly created role has arisen with a reputable Our client is a reputable US listed company with operations A new senior role has arisen in the well-established investment bank with sizable operations in Asia. Joining around the globe employing over 50,000 people. They financial regulatory practice of a global law firm. The team investment bank with sizable operations in Asia. Joining around the globe employing over 50,000 people. They financial regulatory practice of a global law firm. The team Olga Yung, Regional Director, Financial Services a team of 3 lawyers, you will report to the Head of Legal are currently seeking a Senior Legal Counsel to join the specialises in advising government bodies, investment Olga Yung, Regional Director, Financial Services a team of 3 lawyers, you will report to the Head of Legal are currently seeking a Senior Legal Counsel to join the specialises in advising government bodies, investment & Compliance, to support the investment teams where regional legal team. You will report to the US while working banks, securities houses, exchanges and other players Olga has been specialising in legal recruitment for over ten years, with a focus on financial services clients. She has an outstanding proven track record & Compliance, to support the investment teams where regional legal team. You will report to the US while working banks, securities houses, exchanges and other players Olga has been specialising in legal recruitment for over ten years, with a focus on financial services clients. She has an outstanding proven track record they have established businesses in both equity and debt closely with the General Counsel, APAC and the rest of in the financial services industry. The team provides in placing all levels of legal professionals, with a stronger focus on mid to senior level hires. Graduating with a Bachelor and Master degree in Law, Olga they have established businesses in both equity and debt closely with the General Counsel, APAC and the rest of in the financial services industry. The team provides in placing all levels of legal professionals, with a stronger focus on mid to senior level hires. Graduating with a Bachelor and Master degree in Law, Olga investment, including but not restricted to, plain vanilla the APAC legal team. You will be providing legal advice in regulatory advice and partakes in complex cross-border possesses experience gained from international law firms prior to joining Michael Page. Olga has extensive networks across the in house sector and with in- investment, including but not restricted to, plain vanilla the APAC legal team. You will be providing legal advice in regulatory advice and partakes in complex cross-border possesses experience gained from international law firms prior to joining Michael Page. Olga has extensive networks across the in house sector and with in- bond issuance, CB, exchange notes, loans. This bank regards to dispute, litigation and regulatory compliance. regulatory investigations and enforcement cases. In this depth knowledge of legal talent available within the region. She has also successfully recruited within the private practice and in house legal space. bond issuance, CB, exchange notes, loans. This bank regards to dispute, litigation and regulatory compliance. regulatory investigations and enforcement cases. In this depth knowledge of legal talent available within the region. She has also successfully recruited within the private practice and in house legal space. also has a growing asset management business. The You will also be managing and implementing any global role you’ll be responsible for taking a lead role in advising also has a growing asset management business. The You will also be managing and implementing any global role you’ll be responsible for taking a lead role in advising [email protected] | +852 2848 4791 | linkedin.com/in/olgayung ideal candidate will be a corporate or banking lawyer, corporate compliance program and litigation and dispute clients, supervising the team and delivering practice [email protected] | +852 2848 4791 | linkedin.com/in/olgayung ideal candidate will be a corporate or banking lawyer, corporate compliance program and litigation and dispute clients, supervising the team and delivering practice with at least 4 years’ post-qualification experience being related policies within the APAC region. The successful specific training. The ideal candidate will possess 8+ with at least 4 years’ post-qualification experience being related policies within the APAC region. The successful specific training. The ideal candidate will possess 8+ a HK qualified lawyer. Willingness to learn and pick up candidate will be a common law qualified lawyer with years’ PQE and experience in contentious and/or non- a HK qualified lawyer. Willingness to learn and pick up candidate will be a common law qualified lawyer with years’ PQE and experience in contentious and/or non- new work is important. Candidates with international law at least 10 years’ PQE coming from an international law contentious regulatory matters. Keen interest in dispute new work is important. Candidates with international law at least 10 years’ PQE coming from an international law contentious regulatory matters. Keen interest in dispute firm experience is preferred. Both English and Chinese firm or a similar in-house position. Fluency in English and resolution work is desirable. Proficiency in both English firm experience is preferred. Both English and Chinese firm or a similar in-house position. Fluency in English and resolution work is desirable. Proficiency in both English Serena Tang, Associate Director, In House Corporate Marta Verderosa, Manager, Private Practice language skills are required and conversational Mandarin Chinese is a must. Ref: 3939398 and Chinese is preferred. Ref: 3938743 Serena Tang, Associate Director, In House Corporate Marta Verderosa, Manager, Private Practice language skills are required and conversational Mandarin Chinese is a must. Ref: 3939398 and Chinese is preferred. Ref: 3938743 Serena has over 7 years of recruitment experience, specialising Marta has over 4 years of legal recruitment experience, with a is useful. Ref: 3935870 Serena has over 7 years of recruitment experience, specialising Marta has over 4 years of legal recruitment experience, with a is useful. Ref: 3935870 in the recruitment of in-house lawyers where her industry focus is dedicated focus on private practice. She has extensive experience in the recruitment of in-house lawyers where her industry focus is dedicated focus on private practice. She has extensive experience across in house corporate, assisting all types of commercial clients in recruitment covering all areas of practices for lawyers, from newly across in house corporate, assisting all types of commercial clients in recruitment covering all areas of practices for lawyers, from newly in Hong Kong. Serena has long standing work relationships with the qualified up to partner level, for leading and sizable law firms in Hong Counsel Legal Counsel Associate in Hong Kong. Serena has long standing work relationships with the qualified up to partner level, for leading and sizable law firms in Hong Counsel Legal Counsel Associate executive-level legal and human resources professionals across a Kong. She also oversees legal support hires for financial institution executive-level legal and human resources professionals across a Kong. She also oversees legal support hires for financial institution › 7+ PQE › 2+ PQE › 3-5 PQE variety of industries with multinationals, state-owned enterprises, clients, and has recruited within the in house legal space. Marta is variety of industries with multinationals, state-owned enterprises, clients, and has recruited within the in house legal space. Marta is › Private Equity House › Fortune 500 Company › UK Firm as well as domestic private and listed companies. Graduating from the University a LLB graduate and worked in a leading law firm and a global insurance company › Private Equity House › Fortune 500 Company › UK Firm as well as domestic private and listed companies. Graduating from the University a LLB graduate and worked in a leading law firm and a global insurance company A private equity arm with under a sizable conglomerate Our client is a Hong Kong listed fortune 500 company Our client is a top tier UK law firm with more than twenty A private equity arm with under a sizable conglomerate Our client is a Hong Kong listed fortune 500 company Our client is a top tier UK law firm with more than twenty of Wisconsin, Serena gained experience in management consulting prior to joining before joining Michael Page. is currently seeking to take on a lawyer to work with with operations across various industries. They are years of presence in Asia. They are now seeking a mid- of Wisconsin, Serena gained experience in management consulting prior to joining before joining Michael Page. is currently seeking to take on a lawyer to work with with operations across various industries. They are years of presence in Asia. They are now seeking a mid- Michael Page in 2010. [email protected] | +852 2848 4794 | their existing counsel due to growing operations. The currently seeking a Legal Counsel to join them at the level associate to join its Dispute Resolution practice. Michael Page in 2010. [email protected] | +852 2848 4794 | their existing counsel due to growing operations. The currently seeking a Legal Counsel to join them at the level associate to join its Dispute Resolution practice. successful candidate will look after all SFC licensing group level. Reporting to the Group General Counsel, you They provide a unique opportunity to the right candidate [email protected] | +852 3412 4810 | linkedin.com/in/tangserena linkedin.com/in/martaverderosa successful candidate will look after all SFC licensing group level. Reporting to the Group General Counsel, you They provide a unique opportunity to the right candidate [email protected] | +852 3412 4810 | linkedin.com/in/tangserena linkedin.com/in/martaverderosa related matters as well as on going transactions, working will work with a high caliber team of experienced legal to work on high profile disputes and arbitrations across related matters as well as on going transactions, working will work with a high caliber team of experienced legal to work on high profile disputes and arbitrations across closely with the CEO and senior management team. professionals. In this corporate commercial role, you will the APAC region as well as the opportunity to work with closely with the CEO and senior management team. professionals. In this corporate commercial role, you will the APAC region as well as the opportunity to work with Being a SFC license holder of type 4 and 6, the successful have the opportunity to work closely with a large number leading practitioners in the field. As a key member of the Being a SFC license holder of type 4 and 6, the successful have the opportunity to work closely with a large number leading practitioners in the field. As a key member of the candidate will ensure regulatory compliance with local of internal stakeholders and be exposed to the decision- team, you will be involved in a broad spectrum of work candidate will ensure regulatory compliance with local of internal stakeholders and be exposed to the decision- team, you will be involved in a broad spectrum of work Tina Wang, Managing Consultant, In-House Corporate Kamil Butt, Senior Consultant, Private Practice guidelines and to drive direct investments transactions making and business planning processes behind M&A including international arbitration, global investigations Tina Wang, Managing Consultant, In-House Corporate Kamil Butt, Senior Consultant, Private Practice guidelines and to drive direct investments transactions making and business planning processes behind M&A including international arbitration, global investigations including M&A and Private Equity deals. You will possess deals and other corporate transactions. The successful and US litigation cases. The ideal candidate should Tina has over 4 years’ recruitment experience within the in Kamil joined Michael Page Legal in year 2015 with over 2 years including M&A and Private Equity deals. You will possess deals and other corporate transactions. The successful and US litigation cases. The ideal candidate should Tina has over 4 years’ recruitment experience within the in Kamil joined Michael Page Legal in year 2015 with over 2 years at least 7 years’ PQE gained in the area of M&A or private candidate will have at least 2 years’ PQE, being well have 3 - 5 years’ PQE and possess strong technical and house commercial space, specialising in recruitment of in-house legal recruitment experience. He specializes in recruitment for at least 7 years’ PQE gained in the area of M&A or private candidate will have at least 2 years’ PQE, being well have 3 - 5 years’ PQE and possess strong technical and house commercial space, specialising in recruitment of in-house legal recruitment experience. He specializes in recruitment for equity. Exposure in SFC License Type 4 and 6 matters is versed in commercial contracts as well as having strong commercial experience gained in a leading law firm in lawyers at all levels. She has an excellent track record working private practice and financial services clients, with an excellent track equity. Exposure in SFC License Type 4 and 6 matters is versed in commercial contracts as well as having strong commercial experience gained in a leading law firm in lawyers at all levels. She has an excellent track record working private practice and financial services clients, with an excellent track ideal, as is willingness to pick it up. Strong English and English and Chinese language skills. Ref: 3937163 Hong Kong or China. Proficiency in English, Cantonese with multinationals, state-owned enterprises, as well as domestic record in successfully assisting legal support candidates including ideal, as is willingness to pick it up. Strong English and English and Chinese language skills. Ref: 3937163 Hong Kong or China. Proficiency in English, Cantonese with multinationals, state-owned enterprises, as well as domestic record in successfully assisting legal support candidates including Chinese language skills required. Ref: 3938430 and Mandarin is required. Ref: 3791090 private and listed companies in Hong Kong. Tina’s in-depth market paralegals and company secretaries at all levels. Kamil was born in Chinese language skills required. Ref: 3938430 and Mandarin is required. Ref: 3791090 private and listed companies in Hong Kong. Tina’s in-depth market paralegals and company secretaries at all levels. Kamil was born in knowledge and extensive networks in the region allows her access Hong Kong and speaks both English and Cantonese, he graduated knowledge and extensive networks in the region allows her access Hong Kong and speaks both English and Cantonese, he graduated to high calibre candidates and clients. Tina is CPA qualified with a with a Bachelor Degree in Law from University of Bristol. to high calibre candidates and clients. Tina is CPA qualified with a with a Bachelor Degree in Law from University of Bristol. PRC Counsel Legal Counsel China Funds Associate prior career in PriceWaterhouse Coopers prior to joining Michael Page. [email protected] | +852 2848 4798 | linkedin.com/in/kamilbutt PRC Counsel Legal Counsel China Funds Associate prior career in PriceWaterhouse Coopers prior to joining Michael Page. [email protected] | +852 2848 4798 | linkedin.com/in/kamilbutt [email protected] | +852 2848 9561 | › 5+ PQE › 3+ PQE › 3-6 PQE [email protected] | +852 2848 9561 | › 5+ PQE › 3+ PQE › 3-6 PQE linkedin.com/in/tina-wang-cpa-8b604746 linkedin.com/in/tina-wang-cpa-8b604746 › Leading Financial Institution › Chinese Property Developer › International Law Firm A very sizable financial institution is seeking to take on A mainland Chinese company is strategically growing its A highly reputable funds practice has a rare vacancy for a A very sizable financial institution is seeking to take on A mainland Chinese company is strategically growing its A highly reputable funds practice has a rare vacancy for a a new headcount for the legal team. Reporting to the presence in the Hong Kong property market. They are now China qualified junior to mid-level funds lawyer. Working a new headcount for the legal team. Reporting to the presence in the Hong Kong property market. They are now China qualified junior to mid-level funds lawyer. Working General Counsel, you will support on a variety of corporate seeking a Legal Counsel to join the team in Hong Kong to alongside well regarded partners, you will be exposed General Counsel, you will support on a variety of corporate seeking a Legal Counsel to join the team in Hong Kong to alongside well regarded partners, you will be exposed transactions with a focus on cross border and outbound grow with the local projects. You will report to the Legal to high profile funds work. You will have the opportunity Sabina Li, Consultant, Legal Support Soraya Tennent, Consultant , Legal Support transactions with a focus on cross border and outbound grow with the local projects. You will report to the Legal to high profile funds work. You will have the opportunity Sabina Li, Consultant, Legal Support Soraya Tennent, Consultant , Legal Support M&A deals, as well as to assist the asset management Director and be responsible for overseeing legal matters work on a wide range of investment fund issues and Sabina specialises in the recruitment of company secretarial Soraya’s career with Michael Page commenced in Australia in 2015. M&A deals, as well as to assist the asset management Director and be responsible for overseeing legal matters work on a wide range of investment fund issues and Sabina specialises in the recruitment of company secretarial Soraya’s career with Michael Page commenced in Australia in 2015. business on a variety of funds work. The ideal candidate during the construction phase by providing legal advice and products with exposure to off-shore jurisdictions. Our business on a variety of funds work. The ideal candidate during the construction phase by providing legal advice and products with exposure to off-shore jurisdictions. Our professionals at all levels, with a focus on in house commercial She has 2 years of recruitment experience in the areas of legal will be a PRC qualified lawyer with international law firm or managing potential disputes. As the projects develop, you client offers comprehensive training in funds work. You professionals at all levels, with a focus on in house commercial She has 2 years of recruitment experience in the areas of legal will be a PRC qualified lawyer with international law firm or managing potential disputes. As the projects develop, you client offers comprehensive training in funds work. You clients in Hong Kong. She has 2 years of recruitment experience and finance. After moving to Hong Kong, Soraya specialises in the sizable law firm experience, gained in the area of corporate will be in charge of property transactions and be responsible will gain intimate knowledge of hedge fund, fund of fund clients in Hong Kong. She has 2 years of recruitment experience and finance. After moving to Hong Kong, Soraya specialises in the sizable law firm experience, gained in the area of corporate will be in charge of property transactions and be responsible will gain intimate knowledge of hedge fund, fund of fund servicing commercial clients across a variety of industries. Sabina recruitment of legal support staff for all leading and sizable law firms M&A. Any additional experience gained in the area of for the preparation of DMC and sales brochures. The ideal and private equity fund structures. The ideal candidate servicing commercial clients across a variety of industries. Sabina recruitment of legal support staff for all leading and sizable law firms M&A. Any additional experience gained in the area of for the preparation of DMC and sales brochures. The ideal and private equity fund structures. The ideal candidate graduated from the UK with a Bachelor of Science and a Graduate as well as global and local financial institutions. Soraya graduated funds or banking finance is useful though not mandatory. candidate will have at least 3 years of PQE with relevant should have 3-6 years’ PQE and should speak excellent graduated from the UK with a Bachelor of Science and a Graduate as well as global and local financial institutions. Soraya graduated funds or banking finance is useful though not mandatory. candidate will have at least 3 years of PQE with relevant should have 3-6 years’ PQE and should speak excellent Diploma in Law. Prior to joining Michael Page, she worked with a law from Curtin University with a Double Major in Business Law and You will be a strong team player with willingness to pick exposure to real estate matters. Familiarity with the First- English and Mandarin. This position is open to candidates Diploma in Law. Prior to joining Michael Page, she worked with a law from Curtin University with a Double Major in Business Law and You will be a strong team player with willingness to pick exposure to real estate matters. Familiarity with the First- English and Mandarin. This position is open to candidates up on a variety of work as well as to assist with ad hoc hand Sales Ordinance is a must while in house experience with funds experience but also to candidates with a solid firm and a HK listed company as a paralegal and company secretary. Journalism. up on a variety of work as well as to assist with ad hoc hand Sales Ordinance is a must while in house experience with funds experience but also to candidates with a solid firm and a HK listed company as a paralegal and company secretary. Journalism. in house matters. Strong English and Chinese language is not required. Fluency in English and Cantonese as well as corporate and M&A background from international law [email protected] | +852 3602 2480 | linkedin.com/in/sabinali [email protected] | +852 2848 4795 | in house matters. Strong English and Chinese language is not required. Fluency in English and Cantonese as well as corporate and M&A background from international law [email protected] | +852 3602 2480 | linkedin.com/in/sabinali [email protected] | +852 2848 4795 | skills including Mandarin is required. Ref: 3936382 conversational Mandarin is required. Ref: 3938365 firms or leading Chinese firms. Ref: 3891820 linkedin.com/in/soraya-tennent-0b9a6a95 skills including Mandarin is required. Ref: 3936382 conversational Mandarin is required. Ref: 3938365 firms or leading Chinese firms. Ref: 3891820 linkedin.com/in/soraya-tennent-0b9a6a95

To apply, visit www.michaelpage.com.hk quoting the reference number or contact our consultants.

Specialists in legal recruitment www.michaelpage.com.hk Legal www.michaelpage.com.hk MICHAELMICHAEL PAGE PAGE LEGAL LEGAL SPECIALISTSSPECIALISTS ININ LEGALLEGAL RECRUITMENTRECRUITMENT

MEETMEET THE THE TEAM TEAM FINANCIALFINANCIAL SERVICES SERVICES COMMERCIALCOMMERCIAL PRIVATEPRIVATE PRACTICE PRACTICE LegalLegal Counsel Counsel SeniorSenior Legal Legal Counsel, Counsel, APAC APAC CounselCounsel MichaelMichael Page Page Legal Legal services services major major corporates, corporates, international international and and leading leading local local law law firms, firms, as as wellwell as as financial financial services services institutions institutions on on a aglobal global scale. scale. Our Our consultants consultants LegalLegal Counsel Counsel SeniorSenior Legal Legal Counsel, Counsel, APAC APAC CounselCounsel areare strategically strategically specialised specialised in in focusing focusing on on legal legal recruitment recruitment for for different different aspects aspects of of the the job job function function and and industry, industry, diversifying diversifying and and maximising maximising our our recruitment recruitment areare strategically strategically specialised specialised in in focusing focusing on on legal legal recruitment recruitment for for different different aspects aspects of of the the job job function function and and industry, industry, diversifying diversifying and and maximising maximising our our recruitment recruitment › ›4-8› 4-8 PQE PQE › ›10+› 10+ PQE PQE › ›8› 8PQE PQE coveragecoverage as as a ateam. team. We We have have successfully successfully placed placed candidates candidates across across all all levels levels from from Associates Associates and and Junior Junior Legal Legal Counsels, Counsels, to to Partners Partners and and Heads Heads of of Legal. Legal. coveragecoverage as as a ateam. team. We We have have successfully successfully placed placed candidates candidates across across all all levels levels from from Associates Associates and and Junior Junior Legal Legal Counsels, Counsels, to to Partners Partners and and Heads Heads of of Legal. Legal. › ›Investment› InvestmentInvestment Bank BankBank › ›US› US Listed Listed Company Company › ›International› InternationalInternational Law LawLaw Firm FirmFirm A A newlynewly createdcreated rolerole hashas arisenarisen withwith a a reputablereputable OurOur client client is isa reputablea reputable US US listed listed company company with with operations operations A Anew new senior senior role role has has arisen arisen in in the the well-established well-established A A newlynewly createdcreated rolerole hashas arisenarisen withwith a a reputablereputable OurOur client client is isa reputablea reputable US US listed listed company company with with operations operations A Anew new senior senior role role has has arisen arisen in inthe the well-established well-established investmentinvestment bank bank with with sizable sizable operations operations in in Asia. Asia. Joining Joining aroundaround the the globe globe employing employing over over 50,000 50,000 people. people. They They financialfinancial regulatory regulatory practice practice of ofa aglobal global law law firm. firm. The The team team investmentinvestment bank bank with with sizable sizable operations operations in inAsia. Asia. Joining Joining aroundaround the the globe globe employing employing over over 50,000 50,000 people. people. They They financialfinancial regulatory regulatory practice practice of ofa aglobal global law law firm. firm. The The team team OlgaOlga Yung, Yung, Regional Regional Director, Director, Financial Financial Services Services a ateam team of of 3 3lawyers, lawyers, you you will will report report to to the the Head Head of of Legal Legal areare currently currently seeking seeking a aSenior Senior Legal Legal Counsel Counsel to to join join the the specialisesspecialises in in advising advising government government bodies, bodies, investment investment OlgaOlga Yung, Yung, Regional Regional Director, Director, Financial Financial Services Services a ateam team of of 3 3lawyers, lawyers, you you will will report report to to the the Head Head of of Legal Legal areare currently currently seeking seeking a aSenior Senior Legal Legal Counsel Counsel to to join join the the specialisesspecialises in inadvising advising government government bodies, bodies, investment investment & &Compliance, Compliance, to to support support the the investment investment teams teams where where regionalregional legal legal team. team. You You will will report report to to the the US US while while working working banks,banks, securities securities houses, houses, exchanges exchanges and and other other players players OlgaOlga has has been been specialising specialising in in legal legal recruitment recruitment for for over over ten ten years, years, with with a afocus focus on on financial financial services services clients. clients. She She has has an an outstanding outstanding proven proven track track record record & &Compliance, Compliance, to to support support the the investment investment teams teams where where regionalregional legal legal team. team. You You will will report report to to the the US US while while working working banks,banks, securities securities houses, houses, exchanges exchanges and and other other players players OlgaOlga has has been been specialising specialising in in legal legal recruitment recruitment for for over over ten ten years, years, with with a afocus focus on on financial financial services services clients. clients. She She has has an an outstanding outstanding proven proven track track record record theythey have have established established businesses businesses in in both both equity equity and and debt debt closelyclosely with with the the General General Counsel, Counsel, APAC APAC and and the the rest rest of of inin the the financial financial services services industry. industry. The The team team provides provides inin placing placing all all levels levels of of legal legal professionals, professionals, with with a astronger stronger focus focus on on mid mid to to senior senior level level hires. hires. Graduating Graduating with with a aBachelor Bachelor and and Master Master degree degree in in Law, Law, Olga Olga theythey have have established established businesses businesses in inboth both equity equity and and debt debt closelyclosely with with the the General General Counsel, Counsel, APAC APAC and and the the rest rest of of in in the the financial financial services services industry. industry. The The team team provides provides inin placing placing all all levels levels of of legal legal professionals, professionals, with with a astronger stronger focus focus on on mid mid to to senior senior level level hires. hires. Graduating Graduating with with a aBachelor Bachelor and and Master Master degree degree in in Law, Law, Olga Olga investment,investment, including including but but not not restricted restricted to, to, plain plain vanilla vanilla thethe APAC APAC legal legal team. team. You You will will be be providing providing legal legal advice advice in in regulatoryregulatory advice advice and and partakes partakes in in complex complex cross-border cross-border possessespossesses experience experience gained gained from from international international law law firms firms prior prior to to joining joining MichaelMichael Page. Page. OlgaOlga has has extensive extensive networks networks across across the the in in house house sector sector and and withwith inin- investment,investment, including including but but not not restricted restricted to, to, plain plain vanilla vanilla thethe APAC APAC legal legal team. team. You You will will be be providing providing legal legal advice advice in in regulatoryregulatory advice advice and and partakes partakes in incomplex complex cross-border cross-border possessespossesses experience experience gained gained from from international international law law firms firms prior prior to to joining joining MichaelMichael Page. Page. OlgaOlga has has extensive extensive networks networks across across the the in in house house sector sector and and withwith inin- bondbond issuance, issuance, CB, CB, exchange exchange notes, notes, loans. loans. This This bank bank regardsregards to to dispute, dispute, litigation litigation and and regulatory regulatory compliance. compliance. regulatoryregulatory investigations investigations and and enforcement enforcement cases. cases. In In this this depthdepth knowledge knowledge of of legal legal talent talent available available within within the the region. region. She She has has also also successfully successfully recruited recruited within within the the private private practice practice and and in in house house legal legal space. space. bondbond issuance, issuance, CB, CB, exchange exchange notes, notes, loans. loans. This This bank bank regardsregards to to dispute, dispute, litigation litigation and and regulatory regulatory compliance. compliance. regulatoryregulatory investigations investigations and and enforcement enforcement cases. cases. In In this this depthdepth knowledge knowledge of of legal legal talent talent available available within within the the region. region. She She has has also also successfully successfully recruited recruited within within the the private private practice practice and and in in house house legal legal space. space. alsoalso has has a agrowing growing asset asset management management business. business. The The YouYou will will also also be be managing managing and and implementing implementing any any global global rolerole you’ll you’ll be be responsible responsible for for taking taking a alead lead role role in in advising advising alsoalso has has a agrowing growing asset asset management management business. business. The The YouYou will will also also be be managing managing and and implementing implementing any any global global rolerole you’ll you’ll be be responsible responsible for for taking taking a alead lead role role in inadvising advising [email protected]@michaelpage.com.hk | +852| +852 2848 2848 4791 4791 | linkedin.com/i| linkedin.com/in/olgayungn/olgayung idealideal candidate candidate will will be be a acorporate corporate or or banking banking lawyer, lawyer, corporatecorporate compliance compliance program program and and litigation litigation and and dispute dispute clients,clients, supervising supervising the the team team and and delivering delivering practice practice [email protected]@michaelpage.com.hk | +852| +852 2848 2848 4791 4791 | linkedin.com/i| linkedin.com/in/olgayungn/olgayung idealideal candidate candidate will will be be a acorporate corporate or or banking banking lawyer, lawyer, corporatecorporate compliance compliance program program and and litigation litigation and and dispute dispute clients,clients, supervising supervising the the team team and and delivering delivering practice practice withwith at at least least 4 4years’ years’ post-qualification post-qualification experience experience being being relatedrelated policies policies within within the the APAC APAC region. region. The The successful successful specificspecific training. training. The The ideal ideal candidate candidate will will possess possess 8+ 8+ withwith at at least least 4 4years’ years’ post-qualification post-qualification experience experience being being relatedrelated policies policies within within the the APAC APAC region. region. The The successful successful specificspecific training. training. The The ideal ideal candidate candidate will will possess possess 8+ 8+ a a HK HK qualified qualified lawyer. lawyer. Willingness Willingness to to learn learn and and pick pick up up candidatecandidate will will be be a a common common law law qualified qualified lawyer lawyer with with years’years’ PQE PQE and and experience experience in in contentious contentious and/or and/or non- non- a a HK HK qualified qualified lawyer. lawyer. Willingness Willingness to to learn learn and and pick pick up up candidatecandidate will will be be a a common common law law qualified qualified lawyer lawyer with with years’years’ PQE PQE and and experience experience in incontentious contentious and/or and/or non- non- newnew work work is isimportant. important. Candidates Candidates with with international international law law atat least least 10 10 years’ years’ PQE PQE coming coming from from an an international international law law contentiouscontentious regulatory regulatory matters. matters. Keen Keen interest interest in in dispute dispute newnew work work is isimportant. important. Candidates Candidates with with international international law law atat least least 10 10 years’ years’ PQE PQE coming coming from from an an international international law law contentiouscontentious regulatory regulatory matters. matters. Keen Keen interest interest in indispute dispute firmfirm experience experience is is preferred. preferred. Both Both English English and and Chinese Chinese firmfirm or ora asimilar similar in-house in-house position. position. Fluency Fluency in in English English and and resolutionresolution work work is is desirable. desirable. Proficiency Proficiency in in both both English English firmfirm experience experience is is preferred. preferred. Both Both English English and and Chinese Chinese firmfirm or ora similara similar in-house in-house position. position. Fluency Fluency in in English English and and resolutionresolution work work is is desirable. desirable. Proficiency Proficiency in in both both English English SerenaSerena Tang, Tang, Associate Associate Director, Director, In In House House Corporate Corporate MartaMarta Verderosa, Verderosa, Manager, Manager, Private Private Practice Practice languagelanguage skills skills are are required required and and conversational conversational Mandarin Mandarin ChineseChinese is isa amust. must. Ref: Ref: 3939398 3939398 andand Chinese Chinese is ispreferred. preferred. Ref: Ref: 3938743 3938743 SerenaSerena Tang, Tang, Associate Associate Director, Director, In In House House Corporate Corporate MartaMarta Verderosa, Verderosa, Manager, Manager, Private Private Practice Practice languagelanguage skills skills are are required required and and conversational conversational Mandarin Mandarin ChineseChinese is isa must.a must. Ref: Ref: 3939398 3939398 andand Chinese Chinese is ispreferred. preferred. Ref: Ref: 3938743 3938743 SerenaSerena has has over over 7 7years years of of recruitment recruitment experience, experience, specialising specialising MartaMarta has has over over 4 4years years of of legal legal recruitment recruitment experience, experience, with with a a is isuseful. useful. Ref: Ref: 3935870 3935870 SerenaSerena has has over over 7 7years years of of recruitment recruitment experience, experience, specialising specialising MartaMarta has has over over 4 4years years of of legal legal recruitment recruitment experience, experience, with with a a is isuseful. useful. Ref: Ref: 3935870 3935870 inin the the recruitment recruitment of of in-house in-house lawyers lawyers where where her her industry industry focus focus is is dedicateddedicated focus focus on on private private practice. practice. She She has has extensive extensive experience experience inin the the recruitment recruitment of of in-house in-house lawyers lawyers where where her her industry industry focus focus is is dedicateddedicated focus focus on on private private practice. practice. She She has has extensive extensive experience experience acrossacross in in house house corporate, corporate, assisting assisting all all types types of of commercial commercial clients clients inin recruitment recruitment covering covering all all areas areas of of practices practices for for lawyers, lawyers, from from newly newly acrossacross in in house house corporate, corporate, assisting assisting all all types types of of commercial commercial clients clients inin recruitment recruitment covering covering all all areas areas of of practices practices for for lawyers, lawyers, from from newly newly inin Hong Hong Kong. Kong. Serena Serena has has long long standing standing work work relationships relationships with with the the qualifiedqualified up up to to partner partner level, level, for for leading leading and and sizable sizable law law firms firms in in Hong Hong CounselCounsel LegalLegal Counsel Counsel AssociateAssociate inin Hong Hong Kong. Kong. Serena Serena has has long long standing standing work work relationships relationships with with the the qualifiedqualified up up to to partner partner level, level, for for leading leading and and sizable sizable law law firms firms in in Hong Hong CounselCounsel LegalLegal Counsel Counsel AssociateAssociate executive-levelexecutive-level legal legal and and human human resources resources professionals professionals across across a a Kong.Kong. She She also also oversees oversees legal legal support support hires hires for for financial financial institution institution executive-levelexecutive-level legal legal and and human human resources resources professionals professionals across across a a Kong.Kong. She She also also oversees oversees legal legal support support hires hires for for financial financial institution institution › ›7+› 7+ PQE PQE › ›2+› 2+ PQE PQE › ›3-5› 3-5 PQE PQE varietyvariety of of industries industries with with multinationals, multinationals, state-owned state-owned enterprises, enterprises, clients,clients, and and has has recruited recruited within within the the in in house house legal legal space. space. Marta Marta is is varietyvariety of of industries industries with with multinationals, multinationals, state-owned state-owned enterprises, enterprises, clients,clients, and and has has recruited recruited within within the the in in house house legal legal space. space. Marta Marta is is › ›Private Private Equity Equity House House › ›Fortune Fortune 500 500 Company Company › ›UK UK Firm Firm asas well well as as domestic domestic private private and and listed listed companies. companies. Graduating Graduating from from the the University University a aLLB LLB graduate graduate and and worked worked in in a aleading leading law law firm firm and and a aglobal global insurance insurance company company › Private› Private Equity Equity House House › Fortune› Fortune 500 500 Company Company › UK› UK Firm Firm asas well well as as domestic domestic private private and and listed listed companies. companies. Graduating Graduating from from the the University University a aLLB LLB graduate graduate and and worked worked in in a aleading leading law law firm firm and and a aglobal global insurance insurance company company A Aprivate private equity equity arm arm with with under under a asizable sizable conglomerate conglomerate OurOur client client is isa aHong Hong Kong Kong listed listed fortune fortune 500 500 company company OurOur client client is isa atop top tier tier UK UK law law firm firm withwith moremore than than twenty twenty A Aprivate private equity equity arm arm with with under under a asizable sizable conglomerate conglomerate OurOur client client is isa aHong Hong Kong Kong listed listed fortune fortune 500 500 company company OurOur client client is isa atop top tier tier UK UK law law firm firm with with moremore than than twenty twenty ofof Wisconsin, Wisconsin, Serena Serena gained gained experience experience in in management management consulting consulting prior prior to to joining joining beforebefore joining joining Michael Michael Page. Page. is iscurrently currently seeking seeking to to take take on on a alawyer lawyer to to work work with with withwith operationsoperations acrossacross variousvarious industries.industries. TheyThey areare yearsyears of of presence presence in in Asia. Asia. They They are are now now seeking seeking a amid- mid- ofof Wisconsin, Wisconsin, Serena Serena gained gained experience experience in in management management consulting consulting prior prior to to joining joining beforebefore joining joining Michael Michael Page. Page. is iscurrently currently seeking seeking to to take take on on a alawyer lawyer to to work work with with withwith operations operations across across various various industries. industries. They They are are yearsyears of of presence presence in inAsia. Asia. They They are are now now seeking seeking a amid- mid- MichaelMichael Page Page in in 2010. 2010. [email protected]@michaelpage.com.hk | +852| +852 2848 2848 4794 4794 | | theirtheir existing existing counsel counsel due due to to growing growing operations. operations. The The currentlycurrently seeking seeking a aLegal Legal Counsel Counsel to to join join them them at at the the levellevel associate associate to to join join its its Dispute Dispute Resolution Resolution practice. practice. MichaelMichael Page Page in in 2010. 2010. [email protected]@michaelpage.com.hk | +852| +852 2848 2848 4794 4794 | | theirtheir existing existing counsel counsel due due to to growing growing operations. operations. The The currentlycurrently seeking seeking a aLegal Legal Counsel Counsel to to join join them them at at the the levellevel associate associate to to join join its its Dispute Dispute Resolution Resolution practice. practice. successfulsuccessful candidate candidate will will look look after after all all SFC SFC licensing licensing groupgroup level. level. Reporting Reporting to to the the Group Group General General Counsel, Counsel, you you TheyThey provide provide a aunique unique opportunity opportunity to to the the right right candidate candidate [email protected]@michaelpage.com.hk | +852| +852 3412 3412 4810 4810 | linkedin.com/in/tangserena| linkedin.com/in/tangserena linkedin.com/in/martaverderosalinkedin.com/in/martaverderosa successfulsuccessful candidate candidate will will look look after after all all SFC SFC licensing licensing groupgroup level. level. Reporting Reporting to to the the Group Group General General Counsel, Counsel, you you TheyThey provide provide a aunique unique opportunity opportunity to to the the right right candidate candidate [email protected]@michaelpage.com.hk | +852| +852 3412 3412 4810 4810 | linkedin.com/in/tangserena| linkedin.com/in/tangserena linkedin.com/in/martaverderosalinkedin.com/in/martaverderosa relatedrelated matters matters as as well well as as on on going going transactions, transactions, working working willwill work work with with a ahigh high caliber caliber team team of of experienced experienced legal legal toto work work on on high high profile profile disputes disputes and and arbitrations arbitrations across across relatedrelated matters matters as as well well as as on on going going transactions, transactions, working working willwill work work with with a ahigh high caliber caliber team team of of experienced experienced legal legal toto work work on on high high profile profile disputes disputes and and arbitrations arbitrations across across closelyclosely with with the the CEO CEO and and senior senior management management team. team. professionals.professionals. In In this this corporate corporate commercial commercial role, role, you you will will thethe APAC APAC region region as as well well as as the the opportunity opportunity to to work work with with closelyclosely with with the the CEO CEO and and senior senior management management team. team. professionals.professionals. In In this this corporate corporate commercial commercial role, role, you you will will thethe APAC APAC region region as as well well as as the the opportunity opportunity to to work work with with BeingBeing a aSFC SFC license license holder holder of of type type 4 4and and 6, 6, the the successful successful havehave the the opportunity opportunity to to work work closely closely with with a alarge large number number leadingleading practitioners practitioners in in the the field. field. As As a akey key membermember of ofthe the BeingBeing a SFCa SFC license license holder holder of of type type 4 and4 and 6, 6, the the successful successful havehave the the opportunity opportunity to to work work closely closely with with a alarge large number number leadingleading practitioners practitioners in inthe the field. field. As As a akey key membermember of ofthe the candidatecandidate will will ensure ensure regulatory regulatory compliance compliance with with local local ofof internal internal stakeholders stakeholders and and be be exposed exposed to to the the decision- decision- team,team, you you will will be be involved involved in in a abroad broad spectrum spectrum of of work work candidatecandidate will will ensure ensure regulatory regulatory compliance compliance with with local local ofof internal internal stakeholders stakeholders and and be be exposed exposed to to the the decision- decision- team,team, you you will will be be involved involved in ina abroad broad spectrum spectrum of of work work TinaTina Wang, Wang, Managing Managing Consultant, Consultant, In-House In-House Corporate Corporate KamilKamil Butt, Butt, Senior Senior Consultant, Consultant, Private Private Practice Practice guidelinesguidelines and and to to drive drive direct direct investments investments transactions transactions makingmaking and and business business planning planning processes processes behind behind M&A M&A includingincluding international international arbitration, arbitration, global global investigations investigations TinaTina Wang, Wang, Managing Managing Consultant, Consultant, In-House In-House Corporate Corporate KamilKamil Butt, Butt, Senior Senior Consultant, Consultant, Private Private Practice Practice guidelinesguidelines and and to to drive drive direct direct investments investments transactions transactions makingmaking and and business business planning planning processes processes behind behind M&A M&A includingincluding international international arbitration, arbitration, global global investigations investigations includingincluding M&A M&A and and Private Private Equity Equity deals. deals. You You will will possess possess dealsdeals and and other other corporate corporate transactions. transactions. The The successful successful andand US US litigation litigation cases. cases. The The ideal ideal candidate candidate should should TinaTina hashas overover 4 4 years’years’ recruitmentrecruitment experienceexperience withinwithin thethe inin KamilKamil joined joined Michael Michael Page Page Legal Legal in in year year 2015 2015 with with over over 2 2years years includingincluding M&A M&A and and Private Private Equity Equity deals. deals. You You will will possess possess dealsdeals and and other other corporate corporate transactions. transactions. The The successful successful andand US US litigation litigation cases. cases. The The ideal ideal candidate candidate should should TinaTina has has over over 4 4years’ years’ recruitment recruitment experience experience within within the the in in KamilKamil joined joined Michael Michael Page Page Legal Legal in in year year 2015 2015 with with over over 2 2years years atat least least 7 7years’ years’ PQE PQE gained gained in in the the area area of of M&A M&A or or private private candidatecandidate will will have have at at least least 2 2years’ years’ PQE, PQE, being being well well havehave 3 3- 5- 5years’ years’ PQE PQE and and possess possess strong strong technical technical and and househouse commercial commercial space, space, specialising specialising in in recruitment recruitment of of in-house in-house legallegal recruitment recruitment experience. experience. He He specializes specializes in in recruitment recruitment for for atat least least 7 7years’ years’ PQE PQE gained gained in inthe the area area of of M&A M&A or or private private candidatecandidate will will have have at at least least 2 2years’ years’ PQE, PQE, being being well well havehave 3 3- 5- 5years’ years’ PQE PQE and and possess possess strong strong technical technical and and househouse commercial commercial space, space, specialising specialising in in recruitment recruitment of of in-house in-house legallegal recruitment recruitment experience. experience. He He specializes specializes in in recruitment recruitment for for equity.equity. Exposure Exposure in in SFC SFC License License Type Type 4 4and and 6 6matters matters is is versedversed in in commercial commercial contracts contracts as as well well as as having having strong strong commercialcommercial experience experience gained gained in in a a leading leading law law firm firm in in lawyerslawyers at at all all levels. levels. She She has has an an excellent excellent track track record record working working privateprivate practice practice and and financial financial services services clients, clients, withwith an an excellent excellent track track equity.equity. Exposure Exposure in inSFC SFC License License Type Type 4 4and and 6 6matters matters is is versedversed in incommercial commercial contracts contracts as as well well as as having having strong strong commercialcommercial experience experience gained gained in in a a leading leading law law firm firm in in lawyerslawyers at at all all levels. levels. She She has has an an excellent excellent track track record record working working privateprivate practice practice and and financial financial services services clients, clients, withwith an an excellent excellent track track ideal,ideal, as as is iswillingness willingness to to pick pick it itup. up. Strong Strong English English and and EnglishEnglish and and Chinese Chinese language language skills. skills. Ref: Ref: 3937163 3937163 HongHong Kong Kong or or China. China. Proficiency Proficiency in in English, English, Cantonese Cantonese withwith multinationals, multinationals, state-owned state-owned enterprises, enterprises, as as well well as as domestic domestic recordrecord in in successfully successfully assisting assisting legal legal support support candidates candidates including including ideal,ideal, as as is iswillingness willingness to to pick pick it itup. up. Strong Strong English English and and EnglishEnglish and and Chinese Chinese language language skills. skills. Ref: Ref: 3937163 3937163 HongHong Kong Kong or or China. China. Proficiency Proficiency in in English, English, Cantonese Cantonese withwith multinationals, multinationals, state-owned state-owned enterprises, enterprises, as as well well as as domestic domestic recordrecord in in successfully successfully assisting assisting legal legal support support candidates candidates including including ChineseChinese language language skills skills required. required. Ref: Ref: 3938430 3938430 andand Mandarin Mandarin is isrequired. required. Ref: Ref: 3791090 3791090 privateprivate and and listed listed companies companies in in Hong Hong Kong. Kong. Tina’s Tina’s in-depth in-depth market market paralegalsparalegals and and company company secretaries secretaries at at all all levels. levels. Kamil Kamil was was born born in in ChineseChinese language language skills skills required. required. Ref: Ref: 3938430 3938430 andand Mandarin Mandarin is isrequired. required. Ref: Ref: 3791090 3791090 privateprivate and and listed listed companies companies in in Hong Hong Kong. Kong. Tina’s Tina’s in-depth in-depth market market paralegalsparalegals and and company company secretaries secretaries at at all all levels. levels. Kamil Kamil was was born born in in knowledgeknowledge and and extensive extensive networks networks in in the the region region allows allows her her access access HongHong Kong Kong and and speaks speaks both both English English and and Cantonese, Cantonese, he he graduated graduated knowledgeknowledge and and extensive extensive networks networks in in the the region region allows allows her her access access HongHong Kong Kong and and speaks speaks both both English English and and Cantonese, Cantonese, he he graduated graduated toto high high calibre calibre candidates candidates and and clients. clients. Tina Tina is is CPA CPA qualified qualified withwith a a withwith a aBachelor Bachelor Degree Degree in in Law Law from from University University of of Bristol. Bristol. toto high high calibre calibre candidates candidates and and clients. clients. Tina Tina is isCPA CPA qualified qualified withwith a a withwith a aBachelor Bachelor Degree Degree in in Law Law from from University University of of Bristol. Bristol. PRCPRC Counsel Counsel LegalLegal Counsel Counsel ChinaChina Funds Funds Associate Associate priorprior career career in in PriceWaterhouse PriceWaterhouse Coopers Coopers prior prior to to joining joining Michael Michael Page. Page. [email protected]@michaelpage.com.hk | +852| +852 2848 2848 4798 4798 | linkedin.com/i| linkedin.com/in/kamilbuttn/kamilbutt PRCPRC Counsel Counsel LegalLegal Counsel Counsel ChinaChina Funds Funds Associate Associate priorprior career career in in PriceWaterhouse PriceWaterhouse Coopers Coopers prior prior to to joining joining Michael Michael Page. Page. [email protected]@michaelpage.com.hk | +852| +852 2848 2848 4798 4798 | linkedin.com/i| linkedin.com/in/kamilbuttn/kamilbutt [email protected]@michaelpage.com.hk | +852| +852 2848 2848 9561 9561 | | › ›5+ 5+ PQE PQE › ›3+ 3+ PQE PQE › ›3-6 3-6 PQE PQE [email protected]@michaelpage.com.hk | +852| +852 2848 2848 9561 9561 | | › 5+› 5+ PQE PQE › 3+› 3+ PQE PQE › 3-6› 3-6 PQE PQE linkedin.com/in/tina-wang-cpa-8b604746linkedin.com/in/tina-wang-cpa-8b604746 linkedin.com/in/tina-wang-cpa-8b604746linkedin.com/in/tina-wang-cpa-8b604746 › ›Leading› Leading Financial Financial Institution Institution › ›Chinese› Chinese Property Property Developer Developer › ›International› InternationalInternational Law LawLaw Firm FirmFirm A A very very sizable sizable financial financial institution institution is is seeking seeking to to take take on on A Amainland mainland Chinese Chinese company company is isstrategically strategically growing growing its its A Ahighly highly reputable reputable funds funds practice practice has has a arare rare vacancy vacancy for for a a A A very very sizable sizable financial financial institution institution is is seeking seeking to to take take on on A Amainland mainland Chinese Chinese company company is isstrategically strategically growing growing its its A Ahighly highly reputable reputable funds funds practice practice has has a rarea rare vacancy vacancy for for a a a anew new headcount headcount for for the the legal legal team. team. Reporting Reporting to to the the presencepresence in in the the Hong Hong Kong Kong property property market. market. They They are are now now ChinaChina qualified qualified junior junior to to mid-levelmid-level funds funds lawyer. lawyer. WorkingWorking a anew new headcount headcount for for the the legal legal team. team. Reporting Reporting to to the the presencepresence in inthe the Hong Hong Kong Kong property property market. market. They They are are now now ChinaChina qualified qualified junior junior to to mid-levelmid-level funds funds lawyer. lawyer. WorkingWorking GeneralGeneral Counsel, Counsel, you you will will support support on on a varietya variety of of corporate corporate seekingseeking a aLegal Legal Counsel Counsel to to join join the the team team in in Hong Hong Kong Kong to to alongsidealongside well well regarded regarded partners, partners, you you will will be be exposed exposed GeneralGeneral Counsel, Counsel, you you will will support support on on a varietya variety of of corporate corporate seekingseeking a aLegal Legal Counsel Counsel to to join join the the team team in inHong Hong Kong Kong to to alongsidealongside well well regarded regarded partners, partners, you you will will be be exposed exposed transactionstransactions with with a afocus focus on on cross cross border border and and outbound outbound growgrow with with the the local local projects. projects. You You will will report report to to the the Legal Legal toto high high profile profile funds funds work.work. You You willwill have have the the opportunity opportunity SabinaSabina Li, Li, Consultant, Consultant, Legal Legal Support Support SorayaSoraya Tennent, Tennent, Consultant Consultant , Legal, Legal Support Support transactionstransactions with with a afocus focus on on cross cross border border and and outbound outbound growgrow with with the the local local projects. projects. You You will will report report to to the the Legal Legal toto high high profile profile funds funds work. work. You You will will have have the the opportunity opportunity SabinaSabina Li, Li, Consultant, Consultant, Legal Legal Support Support SorayaSoraya Tennent, Tennent, Consultant Consultant , Legal, Legal Support Support M&AM&A deals, deals, as as well well as as to to assist assist the the asset asset management management DirectorDirector and and be be responsible responsible for for overseeing overseeing legal legal matters matters workwork on on a awide wide range range of of investment investment fund fund issues issues and and SabinaSabina specialisesspecialises inin thethe recruitmentrecruitment ofof companycompany secretarialsecretarial Soraya’sSoraya’s career career with with Michael Michael Page Page commenced commenced in in Australia Australia in in 2015. 2015. M&AM&A deals, deals, as as well well as as to to assist assist the the asset asset management management DirectorDirector and and be be responsible responsible for for overseeing overseeing legal legal matters matters workwork on on a awide wide range range of of investment investment fund fund issues issues and and SabinaSabina specialisesspecialises inin thethe recruitmentrecruitment ofof companycompany secretarialsecretarial Soraya’sSoraya’s career career with with Michael Michael Page Page commenced commenced in in Australia Australia in in 2015. 2015. businessbusiness on on a avariety variety of of funds funds work. work. The The ideal ideal candidate candidate duringduring the the construction construction phase phase by by providing providing legal legal advice advice and and productsproducts with with exposure exposure to to off-shore off-shore jurisdictions. jurisdictions. Our Our businessbusiness on on a avariety variety of of funds funds work. work. The The ideal ideal candidate candidate duringduring the the construction construction phase phase by by providing providing legal legal advice advice and and productsproducts with with exposure exposure to to off-shore off-shore jurisdictions. jurisdictions. Our Our professionalsprofessionals at at all all levels, levels, with with a afocus focus on on in in house house commercial commercial SheShe has has 2 2years years of of recruitment recruitment experience experience in in the the areas areas of of legal legal willwill be be a aPRC PRC qualified qualified lawyer lawyer withwith international international law law firm firm or or managingmanaging potential potential disputes. disputes. As As the the projects projects develop, develop, you you clientclient offers offers comprehensive comprehensive training training in in funds funds work. work. You You professionalsprofessionals at at all all levels, levels, with with a afocus focus on on in in house house commercial commercial SheShe has has 2 2years years of of recruitment recruitment experience experience in in the the areas areas of of legal legal willwill be be a PRCa PRC qualified qualified lawyer lawyer with with international international law law firm firm or or managingmanaging potential potential disputes. disputes. As As the the projects projects develop, develop, you you clientclient offers offers comprehensive comprehensive training training in infunds funds work. work. You You clientsclients in in Hong Hong Kong. Kong. She She has has 2 2years years of of recruitment recruitment experience experience andand finance. finance. After After movingmoving to to HongHong Kong, Kong, Soraya Soraya specialises specialises in in the the sizablesizable law law firm firm experience, experience, gained gained in in the the area area of ofcorporate corporate willwill be be in in charge charge of of property property transactions transactions and and be be responsible responsible willwill gain gain intimate intimate knowledge knowledge of of hedge hedge fund, fund, fund fund of of fund fund clientsclients in in Hong Hong Kong. Kong. She She has has 2 2years years of of recruitment recruitment experience experience andand finance. finance. After After movingmoving to to Hong Hong Kong, Kong, Soraya Soraya specialises specialises in in the the sizablesizable law law firm firm experience, experience, gained gained in inthe the area area of ofcorporate corporate willwill be be in incharge charge of of property property transactions transactions and and be be responsible responsible willwill gain gain intimate intimate knowledge knowledge of of hedge hedge fund, fund, fund fund of of fund fund servicingservicing commercial commercial clients clients across across a avariety variety of of industries. industries. Sabina Sabina recruitmentrecruitment of of legal legal support support staff staff for for all all leading leading and and sizable sizable law law firms firms M&A.M&A. Any Any additional additional experience experience gained gained in in the the area area of of forfor the the preparation preparation of of DMC DMC and and sales sales brochures. brochures. The The ideal ideal andand private private equity equity fund fund structures. structures. The The ideal ideal candidate candidate servicingservicing commercial commercial clients clients across across a avariety variety of of industries. industries. Sabina Sabina recruitmentrecruitment of of legal legal support support staff staff for for all all leading leading and and sizable sizable law law firms firms M&A.M&A. Any Any additional additional experience experience gained gained in inthe the area area of of forfor the the preparation preparation of of DMC DMC and and sales sales brochures. brochures. The The ideal ideal andand private private equity equity fund fund structures. structures. The The ideal ideal candidate candidate graduatedgraduated from from the the UK UK with with a aBachelor Bachelor of of Science Science and and a aGraduate Graduate asas well well as as global global and and local local financial financial institutions. institutions. Soraya Soraya graduated graduated fundsfunds or or banking banking finance finance is is useful useful though though not not mandatory.mandatory. candidatecandidate will will have have at at least least 3 3years years of of PQE PQE with with relevant relevant shouldshould have have 3-6 3-6 years’ years’ PQE PQE and and should should speak speak excellent excellent graduatedgraduated from from the the UK UK with with a aBachelor Bachelor of of Science Science and and a aGraduate Graduate asas well well as as global global and and local local financial financial institutions. institutions. Soraya Soraya graduated graduated fundsfunds or or banking banking finance finance is isuseful useful though though not not mandatory.mandatory. candidatecandidate will will have have at at least least 3 3years years of of PQE PQE with with relevant relevant shouldshould have have 3-6 3-6 years’ years’ PQE PQE and and should should speak speak excellent excellent DiplomaDiploma in in Law. Law. Prior Prior to to joining joining Michael Michael Page, Page, she she worked worked with with a alaw law fromfrom Curtin Curtin University University with with a aDouble Double Major Major in in Business Business Law Law and and YouYou will will be be a astrong strong team team player player with with willingness willingness to to pick pick exposureexposure to to real real estate estate matters. matters. Familiarity Familiarity with with the the First- First- EnglishEnglish and and Mandarin. Mandarin. This This position position is isopen open to to candidates candidates DiplomaDiploma in in Law. Law. Prior Prior to to joining joining Michael Michael Page, Page, she she worked worked with with a alaw law fromfrom Curtin Curtin University University with with a aDouble Double Major Major in in Business Business Law Law and and YouYou will will be be a astrong strong team team player player with with willingness willingness to to pick pick exposureexposure to to real real estate estate matters. matters. Familiarity Familiarity with with the the First- First- EnglishEnglish and and Mandarin. Mandarin. This This position position is isopen open to to candidates candidates upup on on a avariety variety of of work work as as well well as as to to assist assist with with ad ad hoc hoc handhand Sales Sales Ordinance Ordinance is isa amust must while while in in house house experience experience withwith funds funds experience experience but but also also to to candidates candidates with with a asolid solid firmfirm and and a a HKHK listed listed company company as as a aparalegal paralegal and and company company secretary. secretary. Journalism.Journalism. upup on on a avariety variety of of work work as as well well as as to to assist assist with with ad ad hoc hoc handhand Sales Sales Ordinance Ordinance is isa musta must while while in inhouse house experience experience withwith funds funds experience experience but but also also to to candidates candidates with with a asolid solid firmfirm and and a aHK HK listed listed company company as as a aparalegal paralegal and and company company secretary. secretary. Journalism.Journalism. inin house house matters. matters. Strong Strong English English and and Chinese Chinese language language is isnot not required. required. Fluency Fluency in in English English and and Cantonese Cantonese as as well well as as corporatecorporate and and M&A M&A background background from from international international law law [email protected]@michaelpage.com.hk | +852| +852 3602 3602 2480 2480 | linkedin.com/i| linkedin.com/in/sabinalin/sabinali [email protected]@michaelpage.com.hk | +852| +852 2848 2848 4795 4795 | | in inhouse house matters. matters. Strong Strong English English and and Chinese Chinese language language is isnot not required. required. Fluency Fluency in inEnglish English and and Cantonese Cantonese as as well well as as corporatecorporate and and M&A M&A background background from from international international law law [email protected]@michaelpage.com.hk | +852| +852 3602 3602 2480 2480 | linkedin.com/i| linkedin.com/in/sabinalin/sabinali [email protected]@michaelpage.com.hk | +852| +852 2848 2848 4795 4795 | | skillsskills including including Mandarin Mandarin is isrequired. required. Ref: Ref: 3936382 3936382 conversationalconversational Mandarin Mandarin is isrequired. required. Ref: Ref: 3938365 3938365 firmsfirms or orleading leading Chinese Chinese firms. firms. Ref: Ref: 3891820 3891820 linkedin.com/in/soraya-tennent-0b9a6a95linkedin.com/in/soraya-tennent-0b9a6a95 skillsskills including including Mandarin Mandarin is isrequired. required. Ref: Ref: 3936382 3936382 conversationalconversational Mandarin Mandarin is isrequired. required. Ref: Ref: 3938365 3938365 firmsfirms or orleading leading Chinese Chinese firms. firms. Ref: Ref: 3891820 3891820 linkedin.com/in/soraya-tennent-0b9a6a95linkedin.com/in/soraya-tennent-0b9a6a95

ToTo apply, apply, visit visit www.michaelpage.com.hk www.michaelpage.com.hkwww.michaelpage.com.hk quoting quoting the the reference reference number number or or contact contact our our consultants. consultants.

SpecialistsSpecialists in in legal legal recruitment recruitment www.michaelpage.com.hkwww.michaelpage.com.hk LegalLegal www.michaelpage.com.hkwww.michaelpage.com.hk trust | honesty | integrity | partnership

Litigation and Regulatory Debt Capital Markets Capital Markets 4+ PQE Hong Kong 2+ PQE Hong Kong 2+ PQE Hong Kong Our client is a global law firm with a market- This is a fantastic opening for a junior lawyer to Our client is seeking a US qualified corporate leading presence in Asia. This is an excellent join a leading regional practice, to work on MTN associate for their Hong Kong office with and unique opportunity for a mid-level programmes and advise sponsors and issuers extensive capital markets experience. This is a associate to join their disputes resolution on a variety of global debt capital markets fantastic opportunity for a junior associate with practice. The successful candidate will have transactions, as well as corporate finance 2 years of post-qualification experience to join general commercial litigation and contentious matters such as takeovers, private equity, joint this established team. You will focus on cross- regulatory experience. Admission in Hong Kong ventures and regulatory compliance. Ideal border M&A, private equity of US and HK listed and/or Chinese language skills will be a distinct candidates will have experience gained with companies, investments and divestments of advantage. Ideal candidate will be common law a premier practice. Mandarin and Cantonese portfolio companies, securities laws and more. qualified. HKL4605 language skills are essential. HKL4540 Fluency in Mandarin is a plus. HKL4641

Competition/Antitrust Disputes Resolution Debt Capital Markets 2+ PQE Hong Kong 2+ PQE Hong Kong NQ+ Hong Kong Competition Lawyer 2-3 years’ pqe, premier Our client seeks a junior associate to join their An international law firm are currently looking UK firm. Our client is looking for an anti-trust exceptional team. This practice specialises in for an NQ associate to join their HK debt lawyer to join their Hong Kong team: You will litigation matters that are high in profile, value capital markets team. The ideal candidate will currently be working in a top tier law firm with and complexity, and has particular expertise have completed a seat in capital markets (with a strong background in competition law gained in multi-jurisdictional disputes, including experience in DCM preferred) as part of their in Hong Kong preferably. Mandarin will be employment law, regulatory investigations, training contract and be qualified/qualifying highly preferred, an outstanding opportunity trust related claims and shareholder disputes. in a common law jurisdiction. Native/fluent to work closely with the partners and gain high Ideal candidate will have fluency in Chinese. Mandarin language skills (including reading end Competition Law experience. HKL4690 HKL4580 and writing) essential. HKL4644

Banking & Finance Shipping/Trade Litigation Funds and Corporate M&A 2 - 6 PQE Hong Kong 3+ PQE Hong Kong 3 - 6PQE Hong Kong An exciting opportunity for an ambitious This is an excellent opportunity for a lawyer with This leading law firm seeks an associate who is associate to join the growing finance practice experience in shipping litigation, arbitration and a good team player with experience in general of this premier law firm, to work on a diverse international trade. Our client is an international corporate, M&A and/or funds related work range of matters. The successful candidate commercial law firm, well-known for being client- to join their funds and corporate practice. must have experience in general banking, focused. You will join a leading team, recognized Admitted in a common law jurisdiction with asset finance and/or structured finance work. for their deep and broad experience, to offer excellence in English, you will also be ready Ideally English qualified/admitted. Experience services with a wide business perspective, to participate in business development in Hong Kong/Asia with Chinese language skills across all well-known (and not so well-known) activities. Experience in Asia an advantage. an advantage. HKL4542 international regimes. HKL4586 HKL4543

Employment Construction Litigation Disputes Regulation 1+ PQE Hong Kong 2+ PQE Hong Kong Partner Hong Kong Outstanding opportunities for HK qualified Our client, a leading international law This is a brilliant opportunity for a litigation lawyers to work in market leading practices for firm, is looking to hire junior t mid level counsel or partner with a portable book of highly regarded Partners advising blue chip clients construction litigation associates to join their business to join this US firm and develop their on a range of non-contentious and contentious Hong kong-based practice. You will advise practice alongside very well regarded and skilled matters. If you are not currently focusing on major contractors, prominent property and partners. You may have expertise in either employment law you must be able to demonstrate infrastructure owners in project/infrastructure general commercial litigation, construction good exposure and a genuine passion in this financing. The team also advise on disputes in litigation, insolvency or securities regulatory practice area - whether your experience is the building, engineering and resource sectors. litigation. You will have proven marketing and contentious or non-contentious. You should be Experience with contractor and engineering business development skills and a desire to HK qualified, Mandarin an advantage. HKL4649 firms with Mandarin is a must. HKL4579 succeed. HKL4633

This is a selection of our current vacancies; for more information in complete confidence, please call the Hong Kong office on +852 2503 2500 or email us at

[email protected] or [email protected] www.atticus-legal.com Major, Lindsey & Africa, founded in 1982, is the world’s largest and most experienced legal search firm, offering unparalleled service and strategic advice to candidates and clients looking to gain access to Asia Pacific, Australia, EMEA and the United States.

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FINANCIAL SERVICES COMMERCE & INDUSTRY FUNDS LAWYER ETHICS AND COMPLIANCE MANAGER, HEALTHCARE Hong Kong • Singapore • Beijing • Shanghai GLOBAL ASSET MANAGER GLOBAL MEDICAL DEVICES FIRM Specialising in Legal, Financial Services, and Commerce OAA/576350 WDM/601300 Hong Kong • Singapore • Beijing • Shanghai A global asset manager is seeking an additional lawyer for the APAC business. This is a multi-billion dollar global medical devices firm focused on the development Specialising in Legal, Financial Services, and Commerce Sitting in Hong Kong and working with one other senior lawyer, you will be of hardware and software used in Oncology treatments. They are growing their APAC expected to undertake a wide range of legal (80%) and company secretarial compliance & ethics team and are seeking a strong candidate to work directly under (20%) assignments. Legal responsibilities will include reviewing typical investment their APAC Chief Compliance Officer in a highly autonomous role developing a robust Private Practice In-house management documents, agreements and contracts, regulatory matters (both monitoring and ethics program for the region. This person will assist in Due Diligence, internal and external) and general ad-hoc legal matters. You will also act as the transactional review, and lead development and training of ethics and compliance procedures regionally. named and registered company secretary of Hong Kong incorporated subsidiary HEAD OF CORPORATE HONG KONG PARTNER REGULATORY H O N G K O N G 1 0 + P Q E companies and take on the associated duties. Key Requirements: Unique opportunity for a corporate/commercial partner to join Global insurance group seeks a senior regulatory lawyer. You will city firm as its head of corporate. You will need an established lead a small team and advise on a full range of regulatory issues Key Requirements: ■ A minimum of five years’ working experience and a minimum of two years’ following of local Hong Kong clients be part of this rated that affect the company and its subsidiaries. Solid experience in experience in the medical or healthcare industry ■ A commonwealth qualified lawyer with a minimum of four years’ PQE ■ Strong knowledge of regional business laws relating to development and commercial team. (HKL 15520) CRS and FATCA is required. Fluency in Chinese is important. (HKL ■ A good knowledge of funds documentation such as that mentioned above distribution of medical technology 15559) ■ Experience of company secretarial matters is beneficial but not essential ■ Excellent understanding of corporate ethics and Corporate Social Responsibility, EMPLOYMENT HONG KONG 5-10 PQE ■ Chinese languages are preferable ability to educate key cross-border stakeholders in APAC This leading employment practice in expansion mode seeks a HEAD OF LEGAL HONG KONG 10+ PQE ■ Good understanding of business operations and ability to partner with cross functional teams to achieve business outcomes lawyer experienced in the full range of employment law related Well known insurance company seeks a head of legal to support ■ Chinese languages are essential issues. You will work for employers and employees on contentious its Hong Kong business. As well as managing the legal department e.g. complaints, internal investigations and non-contentious the head of legal is expected to play a hands on role advising on FINANCIAL SERVICES employment issues. No language requirement. (HKL 15536) product launches as well as developing and maintaining good relations with the various regulatory bodies. Fluency in Cantonese GLOBAL MARKETS LAWYER SENIOR LEGAL COUNSEL DISPUTE RESOLUTION HONG KONG 3-5 PQE is critical. (HKL 15549) LEADING INVESTMENT BANK GLOBAL LIFE INSURER Top-tier US international law firm is looking for litigators to join OAA/588350 ZRW/599660 HONG KONG 6-10 PQE their dispute resolution practice. You will be working with the REGIONAL LEGAL A global investment bank is seeking an additional lawyer for the structuring and A leading global life insurance group is searching for a senior legal counsel world’s leading clients on matters ranging from international Global business with its HQ in Hong Kong seeks additional senior distribution legal team. Sitting in Hong Kong, this team is responsible for all of to advise on and oversee their life insurance business in Hong Kong, with an commercial disputes, arbitration and regulatory investigations. lawyers to support its various business units. Work involves APAC. You will work with three other lawyers and be expected to undertake a emphasis on the newly developed high net worth market and client base. You wide range of legal matters relating to products such as equity derivatives and (HKL 15561) advising the international business on general commercial work will be joining a team of three lawyers, reporting to the Deputy General Counsel. covering contracts, IP, HR issues. (HKL 15476) index licensing. BANKING FINANCE HONG KONG 1-3 PQE Key Requirements: Key Requirements: A top-tier firm seeks a banking and finance lawyer to join their FUNDS HONG KONG 5-10 PQE ■ A commonwealth qualified lawyer with a minimum of two years’ PQE ■ Hong Kong qualified lawyer with a minimum of four years’ experience in the well-established team. You should be qualified in a common law Leading financial institution seeks a legal counsel to support the ■ A good knowledge of equity products or master agreements insurance or financial services industry jurisdiction and possess solid experience in general banking and asset management and brokerage business. Solid knowledge in ■ Regulatory knowledge covering both products (e.g. MIFID II) and more ■ Exposure to high net worth products or market leveraged finance. Training from a reputable international firm. funds and the regulatory arena is required. Chinese language is general ALM and KYC ■ In-house experience in life insurance is highly advantageous ■ Chinese languages are preferred (HKL 15567) required. (HKL 15504) ■ Chinese languages are preferable FCPA HONG KONG 1-3 PQE LEGAL COUNSEL HONG KONG 5-8+ PQE FINANCIAL SERVICES US Law firm with an established leading litigation practice will Well-known property developer seeks a legal counsel to support be expanding within FCPA and require a junior associate. You their fast growing business. Solid experience in conveyancing, LEGAL COUNSEL COMPLIANCE ADVISORY, AVP/VP, FIXED INCOME should be US or HK qualified with solid regulatory investigations tenancy matters, general corporate and commercial matters MAJOR HONG KONG CONGLOMORATE TOP EUROPEAN BANKING GROUP experience. Mandarin is a preference. (HKL 15562) required. You must be able to work independently. (HKL 15506) ZRW/596360 QPD/514420 A major corporate multi-sector group in Hong Kong is looking for a legal This is a leading, European investment bank currently hiring an experienced fixed EMPLOYMENT HONG KONG 1-3 PQE COMMERCIAL/CORPORATE H O N G K O N G 5 - 8 P Q E counsel to take charge of their financial services business, with major focus on income compliance professional. You will primarily be focused on supporting This international law firm with a highly regarded partner seeks Leading global insurance firm seeks a general commercial lawyer to commodities trading. You will be joining four other lawyers who are responsible the fixed income business and sitting with the larger markets team. This role a lawyer with strong communication skills and with employment join their well-established legal team. You will advise the business for the other arms of the group’s business and reporting directly to the Head of offers wide exposure and will be sitting on the trading floor, requiring strong law experience to join the team. This will be a good opportunity on a wide range of general commercial and corporate matters. Legal. communication skills. for someone who is looking for a challenge, working on the full Fluency in Cantonese (written/spoken) is required. (HKL 15556) Key Requirements: Key Requirements: range of employment issues. (HKL 15518) LEGAL COUNSEL HONG KONG 3-8 PQE ■ Hong Kong qualified lawyer with six to ten years’ PQE in private practice and/ ■ A minimum of four years’ solid experience CORPORATE M&A HONG KONG NQ-2 PQE A leading bank seeks a legal counsel to support their legal function. or in-house ■ Knowledge of Hong Kong rules and regulation relating to the fixed income Top tier US law firm is now open to considering NQ level associates. Responsibilities include reviewing and amending a wide range ■ Experience in financial services industry, in particular commodities trading, is business preferred ■ Strong product knowledge of fixed income products Candidates will be trained from an international firm with solid of loan documents, product documents and other commercial ■ Chinese languages are essential ■ Excellent written and spoken English abilities is compulsory and Chinese corporate experience. US pay scales on offer and enviable career contract, etc. Extensive knowledge of commercial law and languages are preferable prospects. Mandarin is required. (HKL 15568) proficient communication skills are essential. (HKL 15527) TO FIND OUT MORE ABOUT THESE EXCITING LEGAL CAREER OPPORTUNITIES, PLEASE CONTACT: Megan Craighead +852 2103 5377 [email protected] Oliver Allcock +852 2103 5317 [email protected] www.alsrecruit.com Ricky Mui +852 2103 5370 [email protected] Tony Wilkey +852 2103 5338 [email protected] Sharon Siu +852 2103 5319 [email protected] To apply, please send your updated resume to [email protected], or contact one of our Legal Consultants in Hongww Kong:w.alsrecruit.com ClaireTo apply, Park please send your updated Georgeannaresume to [email protected], Mok or contactKumiko one Lam of our Legal Consultants inWilliam Hong Kong: Chan Tel:Claire +852 Park 2920 9134 Tel:Georgeanna +852 2920 Mok 9101 Tel:Kumiko +852 Lam 2920 9125 Tel:William +852 Chan 2920 9105 www.robertwalters.com.hk Email: [email protected] Email: [email protected] Tel: +852 2920 9134 Email:Tel: +852 g.mok@als 2920 9101recruit.com Email:Tel: +852 [email protected] 2920 9125 Tel: +852 2920 9105 ROBERT WALTERS HONG KONG • 20/F NEXXUS BUILDING • 41 CONNAUGHT ROAD CENTRAL • CENTRAL • HONG KONG Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected] SPECIALIST PROFESSIONAL RECRUITMENT LEGAL PROFESSIONALS

FINANCIAL SERVICES COMMERCE & INDUSTRY FUNDS LAWYER ETHICS AND COMPLIANCE MANAGER, HEALTHCARE GLOBAL ASSET MANAGER GLOBAL MEDICAL DEVICES FIRM OAA/576350 WDM/601300 A global asset manager is seeking an additional lawyer for the APAC business. This is a multi-billion dollar global medical devices firm focused on the development Sitting in Hong Kong and working with one other senior lawyer, you will be of hardware and software used in Oncology treatments. They are growing their APAC expected to undertake a wide range of legal (80%) and company secretarial compliance & ethics team and are seeking a strong candidate to work directly under (20%) assignments. Legal responsibilities will include reviewing typical investment their APAC Chief Compliance Officer in a highly autonomous role developing a robust management documents, agreements and contracts, regulatory matters (both monitoring and ethics program for the region. This person will assist in Due Diligence, internal and external) and general ad-hoc legal matters. You will also act as the transactional review, and lead development and training of ethics and compliance procedures regionally. named and registered company secretary of Hong Kong incorporated subsidiary companies and take on the associated duties. Key Requirements:

Key Requirements: ■ A minimum of five years’ working experience and a minimum of two years’ experience in the medical or healthcare industry ■ A commonwealth qualified lawyer with a minimum of four years’ PQE ■ Strong knowledge of regional business laws relating to development and ■ A good knowledge of funds documentation such as that mentioned above distribution of medical technology ■ Experience of company secretarial matters is beneficial but not essential ■ Excellent understanding of corporate ethics and Corporate Social Responsibility, ■ Chinese languages are preferable ability to educate key cross-border stakeholders in APAC ■ Good understanding of business operations and ability to partner with cross functional teams to achieve business outcomes ■ Chinese languages are essential FINANCIAL SERVICES GLOBAL MARKETS LAWYER SENIOR LEGAL COUNSEL LEADING INVESTMENT BANK GLOBAL LIFE INSURER OAA/588350 ZRW/599660 A global investment bank is seeking an additional lawyer for the structuring and A leading global life insurance group is searching for a senior legal counsel distribution legal team. Sitting in Hong Kong, this team is responsible for all of to advise on and oversee their life insurance business in Hong Kong, with an APAC. You will work with three other lawyers and be expected to undertake a emphasis on the newly developed high net worth market and client base. You wide range of legal matters relating to products such as equity derivatives and will be joining a team of three lawyers, reporting to the Deputy General Counsel. index licensing.

Key Requirements: Key Requirements: ■ A commonwealth qualified lawyer with a minimum of two years’ PQE ■ Hong Kong qualified lawyer with a minimum of four years’ experience in the ■ A good knowledge of equity products or master agreements insurance or financial services industry ■ Regulatory knowledge covering both products (e.g. MIFID II) and more ■ Exposure to high net worth products or market general ALM and KYC ■ In-house experience in life insurance is highly advantageous ■ Chinese languages are preferred ■ Chinese languages are preferable FINANCIAL SERVICES LEGAL COUNSEL COMPLIANCE ADVISORY, AVP/VP, FIXED INCOME MAJOR HONG KONG CONGLOMORATE TOP EUROPEAN BANKING GROUP ZRW/596360 QPD/514420 A major corporate multi-sector group in Hong Kong is looking for a legal This is a leading, European investment bank currently hiring an experienced fixed counsel to take charge of their financial services business, with major focus on income compliance professional. You will primarily be focused on supporting commodities trading. You will be joining four other lawyers who are responsible the fixed income business and sitting with the larger markets team. This role for the other arms of the group’s business and reporting directly to the Head of offers wide exposure and will be sitting on the trading floor, requiring strong Legal. communication skills. Key Requirements: Key Requirements:

■ Hong Kong qualified lawyer with six to ten years’ PQE in private practice and/ ■ A minimum of four years’ solid experience or in-house ■ Knowledge of Hong Kong rules and regulation relating to the fixed income ■ Experience in financial services industry, in particular commodities trading, is business preferred ■ Strong product knowledge of fixed income products ■ Chinese languages are essential ■ Excellent written and spoken English abilities is compulsory and Chinese languages are preferable

TO FIND OUT MORE ABOUT THESE EXCITING LEGAL CAREER OPPORTUNITIES, PLEASE CONTACT: Megan Craighead +852 2103 5377 [email protected] Oliver Allcock +852 2103 5317 [email protected] Ricky Mui +852 2103 5370 [email protected] Tony Wilkey +852 2103 5338 [email protected] Sharon Siu +852 2103 5319 [email protected] www.robertwalters.com.hk ROBERT WALTERS HONG KONG • 20/F NEXXUS BUILDING • 41 CONNAUGHT ROAD CENTRAL • CENTRAL • HONG KONG taylorroot.com @TaylorRootLegal taylor-root LONDON | HONG KONG | SINGAPORE | NEW YORK

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