Dennis Kwok eNewsletter MAR 2017

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31 March 2017

Dear Friends and Colleagues,

Progress of the Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Bill 2016

            The Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Bill 2016 was tabled in LegCo late last year.  This bill expressly clarifies that third party funding of arbitration and mediation is not prohibited by the common law doctrines of maintenance and champerty. It also provides for related measures and safeguards for funding arrangements, stipulating that a body authorized under the Arbitration Ordinance will issue a Code of Practice setting out the standards and practices with which third party funders would be expected to comply. Notably, a third party funder must maintain access to a minimum of HK$20 million of capital and have in place adequate procedures and practices for managing conflict of interest.

The Bills Committee (which I chair) has jointly proposed a committee stage amendment to remove an unduly wide restriction prohibiting legal practitioners from providing arbitration funding services directly or indirectly, which has received across-the-board support from LegCo members. I believe that it is acceptable for the legal profession to participate in arbitration funding arrangements as arbitration is of a different nature from litigation, and there will be appropriate safeguards as long as law firms maintain sufficient capital access and proper measures to avoid conflict of interest. This is also in par with international standards such as the United Kingdom and the United States. There is keen competition in the international arbitration arena and it is important for Hong Kong to stay competitive with updated laws. It is expected that the Bill shall be voted on in May 2017.

Problems with new e-Legislation Website

Despite the goodwill of the Department of Justice to launch a more convenient online platform for all to access legislations, the performance of the newly launched Hong Kong e-Legislation website has been less than satisfactory. Browsing particular chapters of legislations has been difficult, and legislations are not easily located through general search engines, creating practical problems for legal practitioners. To ensure high quality access to the law, I have written to the Department of Justice to give feedback on the e-Legislation website and I will continue to monitor the progress as the government make improvements to the website. Please click the links to view my letter (https://goo.gl/oEnYSC) and the Department of Justice’s response (https://goo.gl/jclC0G).

Judiciary Developments

As you may know, there have been some hostile comments directed against the courts and specific members of the Judiciary who presided over certain cases, and such actions are deeply worrying. Being a developed jurisdiction and civilized society, judges should be able to decide cases free from fear and interference in Hong Kong. I have written to the Judiciary Administrator to inquire as to whether any measures to protect the personal safety of judicial officers have been put in place, and as Deputy Chairman of the AJLS Panel, I will ensure that any assistance required will be rendered to the Judiciary.

On the other hand, I am delighted to note that there has been an enhancement in judges’ pay packages last December, marking a significant step forward in improving the judges’ service conditions. The pay rise for CFI judges has already been approved by the AJLS Panel, and I will continue to fight for additional resources for the Judiciary in LegCo as I have done in the past few years. The raising of the retirement age for judges is another item which we are looking at.

Future Friday Tea Gathering

There will be a Friday Tea Gathering on 21 April 2017. Ms. Patricia Ho from Daly Associates will talk about the development of human trafficking and forced labour laws in Hong Kong. Please click here for further details and registration.

Kind regards,

DK_eng_sign
Dennis Kwok

Dennis Kwok eNewsletter JAN 2017

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9 January 2017

Dear Friends and Colleagues,

I hope you have all had a relaxing break and I wish you all a fruitful 2017. As the new year unfolds, I would like to present you with my first round of legislative updates.

Australian Competition Commission Working Scheme

With the development of our Competition law regime, and as part of my campaign promise to expand the range of work opportunities for HK lawyers, I have successfully pursued the arrangement of a working scheme for barristers and solicitor advocates at the Australian Competition and Consumer Commission (ACCC). This is Part II to the Competition law working scheme which I assisted in setting up last year to enable barristers to work in some of the top chambers in London. This new scheme on advocacy training will last for approximately 2 to 3 weeks, and is envisioned to take place in the second quarter of 2017 in Sydney. This is a great opportunity to further one’s knowledge of Competition law litigation and advocacy work and I highly encourage all those who are interested to apply. Please contact my office if you are interested.

Third Party Funding Arbitration Bill and Arbitration (Amendment) Bill tabled in LegCo

To maintain Hong Kong’s status as an international dispute resolution centre, two arbitration-related bills have been taken forward and tabled at LegCo. As one of my very first initiatives at LegCo two years ago, the Third Party Funding Arbitration Bill seeks to provide a legislative framework to regulate how third parties may fund arbitrations; and it is my belief that being a funding-tolerant jurisdiction will give Hong Kong a competitive edge in the arbitration world. Separately, the Arbitration (Amendment) Bill seeks to clarify the present law and lay out rules for resolving intellectual property disputes by arbitration. I have persistently pursued both these issues at LegCo and I will be sure to see to the development and passing of these two important bills.

Duty Lawyer Scheme Fees

As you may know, a resolution was passed by the LegCo to raise the criminal legal aid fees in June 2016, and it is only reasonable that duty lawyer fees be brought in line to the same levels. In the past year, I have urged the Duty Lawyer Service to increase the duty lawyer scheme fees at the Panel on Administration of Justice and Legal Services at LegCo. Pending the response from the Duty Lawyer Service, I will carry on pushing forward the subject and ensure that the duty lawyer fees will be increased.

Chief Executive Election

Thank you to all those who voted on 11th December 2016. Although CY Leung has already said that he will not be running for a second term as Chief Executive, I must reiterate the importance of vigilance and caution. With the Chief Executive election only 2 months away, it is crucial that the 327 democratic Election Committee members stay united and use their votes wisely and strategically for the upcoming CE election. Hong Kong deserves a competent and trustworthy leader for the next 5 years.

Kind regards,

DK_eng_sign

Dennis Kwok

Dennis Kwok eNewsletter JUN 2016

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6 June, 2016

Dear Friends and Colleagues,

Some brief updates from LegCo.

Criminal Legal Aid Fees

On 1 June, a resolution has been tabled in LegCo regarding the rate rise in criminal legal aid cases. The adjustments are as follows:

  • 50% increase for counsel
  • 25% increase for instructing solicitors
  • 40% increase for Solicitor Advocates in the District Court
  • a new category of criminal legal aid fees for High Court cases will be introduced for Solicitor Advocates

The fees for fiat prosecution should also be correspondingly increased.

Competition Law – UK Work Scheme

A few months ago, I reached out to the Competition Commission with the hope to set up a work scheme for junior barristers to work in the UK in the field of Competition law. Through the HK Bar Association, a work scheme has now been set up for interested members of the Bar to work in Monckton Chambers and Brick Court Chambers with some of the top UK practitioners in this field. I strongly encourage all those who are interested to apply.

Further, I am working with the British Consulate to try to expand the scheme to the rest of the legal profession. I shall keep you posted.

Kind regards,

DK_eng_sign

Dennis Kwok

Dennis Kwok e-Newsletter (June 2014)

19 June, 2014

Dear Friends and Colleagues,

White Paper

The Central People’s Government issued a white paper on the governance of HK whereby it sets out its “official” understanding of “One Country, Two Systems” under the Basic Law. The HK Bar Association rightly issued a public statement to rebut some of the statements contained in the white paper—especially those statements touching on the separation of powers, the rule of law and the independence of the judiciary. These are the fundamental safeguards as guaranteed under the Basic Law. They are not open to renewed interpretations by the CPG. Such an act on the part of the CPG, at such a sensitive time, is indeed worrying. On behalf of the legal profession, I have spoken out against the contents of the white paper, and will continue to defend our values and our system under the Basic Law. Together with members of the Election Committee (Legal sector), we shall be organising further actions in protest against any attempt to undermine the rule of law in HK. Please mark your diaries for 27 June 2014 at 5:30pm. We are planning to hold a silent march in front of the High Court. A formal notice with details will be sent out.

Marriage Amendment Bill

In W v the Registrar of Marriages (FACV 4/2012), the CFA held that a transsexual in W’s situation, that is, one who has gone through a full sex reassignment surgery should be granted a declaration that gives her access to marry a man. Any more restrictive definition applied by the Registrar of Marriages in construing section 40 of the Marriage Ordinance and section 20(1)(d) of the Matrimonial Causes Ordinance would be inconsistent with the constitutional right to marry protected by Article 37 of the Basic Law. Continue reading

Dennis Kwok e-Newsletter (November 2013)

14th November, 2013

Dear Friends and Colleagues,

Limited Liability Partnership

With the passage of the Legal Practitioners (Amendment) Bill 2012 on 12 July 2012, Hong Kong took a constructive step towards finally allowing solicitors to practice in the form of limited liability partnerships. Now, there are just a few more details that have to be implemented before a commencement date of the Ordinance can be appointed.

In particular, on the issue of professional insurance, the understanding when the law was passed was that the insurance requirement for a LLP would have to be more stringent than that for a “normal” partnership, but the exact scheme still has to be determined and then put into the form of a subsidiary legislation. My understanding is that the Law Society Council has recently decided on adopting the recommendation of the Working Party on LLPs that LLP be allowed to obtain their own top-up cover with terms similar to those provided by the Professional Indemnity Fund, and a law firm has since been engaged to take up the task of drafting the necessary subsidiary legislation. I have urged the Law Society to speed up the process.

It is with sincere hope that the proposed subsidiary legislation will be sent to the Legislative Council for vetting in time for the commencement date to be appointed before the end of this legislative year in July 2014. When it does arrive at LegCo, I will most likely be chairing the Bills subcommittee.

Party and Party Rates

This is another issue which I have been working on by putting the appropriate pressure on the Judiciary to conduct a review of the current rates; which are seriously out of sync with market realities.

The Chief Justice has recently agreed to appoint a working group to review the matter and to make recommendations. Whilst this is a positive step, I am worried that the process would simply take far too long to complete, and at the same time successful litigants would continue to lose out. I believe that an immediate update of the rates is necessary and justified, together with a study on how to implement a periodic review mechanism going forward.

I shall keep you posted.

Yours sincerely,

Dennis W.H Kwok

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[E-NEWSLETTER July 2013]

2nd July, 2013

Dear Friends and Colleagues,

The Legislative Council session of 2012/2013 is drawing to a close on 23 July. Time flew. Before we break for the summer, I would like to give you another round of update on the latest political and legislative developments since my last report to you in April 2013. If you have missed any of my previous reports and e-newsletters to the legal profession, you could revisit them by going to my FB page or my personal webpage.

– On 4 March 2013, I wrote to the Securities and Futures Commission and the LegCo Panel on Financial Affairs (of which I am a member) to ask them to follow up on the Apex Horizon hotel units sold by Cheung Kong. Having studied the underlying documents and consulted my friends in the financial regulatory field, I believe it constituted a collective investment scheme as defined under the Securities and Future Ordinance (Cap. 571) which required prior regulatory approval by the SFC. On 13 May 2013, the SFC announced that an agreement was reached between the Commission and Cheung Kong to unwind the entire selling scheme and that all buyers are to be put back to their previous positions before the sale. I have continued to follow up on this matter to ensure that all affected buyers are fully compensated for their losses.

– In April 2013, I first raised the questions concerning the conduct of the former ICAC Commissioner Timothy Tong at the Finance Committee in LegCo. The conduct in question involved his expenses over gifts and entertainment activities during his tenure. The more we asked, the more problems were revealed. ICAC is the defender of our core values in Hong Kong. Hong Kong must stay corruption free. This means its chief must behave in an appropriate manner, and his actions must be beyond reproach. On 8 May 2013, I invoked the LegCo procedure of petition to ask the Council to set up a select committee to investigate the matter. The petition procedure is an ancient rite whereby important public concerns were brought before Parliament for investigation. It requires 20 Legislative Councillors to physically stand in support of the petition to set up a select committee. This was the first time since the Handover that this procedure was invoked. The investigation on several fronts is ongoing. I shall further report to you once the select committee begins its work in the new legislative session.

Independent Legal Aid Authority and Legal Aid Review. The Legal Aid Services Council issued its consultancy report in March 2013 recommending against the setting up of an independent legal aid body. This is a surprising U-turn from its 1998 and 2003 reports where independence was recommended by the consultants back then. The need for independence in terms of both operation and perception is overwhelming. At the Legislative Council Panel on Administration of Justice and Legal Services Panel (AJLS) meeting on 25 June, the legal profession and almost all political parties across the board pressed the Administration on this. The issue of independence is long overdue. Any halfway measure is simply not good enough. The Administration promised to look into the matter and at the same time to review the coverability of the legal aid and supplemental legal aid schemes, and also to review the level of criminal legal aid fees within 2013. I shall continue to press the Administration on these matters.

– Party and party taxation. The party to party rates were last reviewed by the Judiciary in 1997. It is clear that another review is long overdue in order to better reflect the current market conditions of the legal profession, so that a successful party in litigation could be placed in a better position when it comes to recovery of legal costs incurred. The Judiciary is looking into the matter, and in any event, the AJLS Panel in LegCo will discuss this matter in the 4th quarter of 2013 once the Judiciary has given its response.

– Expansion of work opportunities in Taiwan and South Korea for the Legal Profession. In May 2013, I visited Seoul to attend the Opening Ceremony of their International Dispute Resolution Centre of which the Hong Kong International Arbitration Centre is a participating organisation. I represented the HK legal profession and met with many of our professional colleagues from South Korea and the Asia-pacific region. This is an important development opportunity for HK, especially in terms of our international arbitration practice and the furtherance of Hong Kong’s status as an international dispute resolution hub. There is much room for collaboration. I have urged the Administration to step up their financial assistance given to the promotion of HK’s legal system and our legal professional abilities. We are much behind other jurisdictions such as Singapore in the promotion of our legal services. We need to seriously step up our efforts on this front.

There have been some concerns about the HK legal profession’s official status in Taiwan. Right now we are not formally recognised by the Taiwanese authorities under any form. This has always been a hindrance to the development of the HK legal profession across the Straits. I have met with Taiwanese officials to discuss this matter, and a high powered Taiwanese delegation is due to come visit HK in September 2013 which would be another opportunity for the legal profession and I to follow up on this.

I wish you all a wonderful summer break! Please do not hesitate to contact me should you have any questions about my work in LegCo or if you have any issues of concerns.

Kind regards,
Dennis Kwok

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[NEWSLETTER April 2013—01] Companies Ordinance – directors’ personal data

NEWSLETTER April 2013

Dear Friends and Colleagues,

There are a few important matters that I would like to take this opportunity to report to you from LegCo.

Companies Ordinance – directors’ personal data

Working together with members of the Bar Association and the Law Society, we have successfully persuaded the Government to postpone its plans to introduce search restrictions for directors’ personal data at the Companies Registry.

The proposed new changes would have had a profound impact on many aspects of a lawyer’s practice, and Hong Kong’s status as an international financial centre. We need to take a holistic view when considering these proposals, taking into account other privacy issues under various registry regimes now already open to the public. Simply changing the existing arrangements under the CO is short-sighted and unworkable.

We welcome the Government’s decision to postpone this part of the new CO, so as to ensure that the much needed new CO would come into operation as soon as possible without too much controversy.

Again, I sincerely thank members of the profession for speaking out on this issue, and making their views known to the Government.

[NEWSLETTER April 2013—02] Milk powder export ban

Milk powder export ban

In March 2013, the Government took the unprecedented step of imposing an export ban on baby milk powder with the intention to prohibit the secondary export of milk powder to the Mainland markets. The Government also decided to adopt the “negative vetting” procedure coupled with immediate enforcement of such measures before bringing the matter to LegCo for legislative scrutiny. This is a highly unusual procedure which means legislative measures and criminal sanctions were put in place without any prior vetting by LegCo. I immediately wrote to the Chief Secretary to protest against the adoption of such procedure and asked the Government to refrain from taking such steps in future unless in cases of real emergency.

The hasty drafting of the new legislative measures meant that milk products which were not the target of the original policy are now also covered by the legislation, leading to serious confusion at the enforcement level and for members of the public.

The Government has since come up with new amendments to the legislation, on which I have submitted a further amendment to address various legal issues  concerning the definition of milk powder.

It is of paramount importance for Hong Kong that our legislations are kept to the highest standards and in line with the cardinal principles of the rule of law – clarity and certainty.