On 17 September 2020, our firm’s senior associate Mr. Gordon Tsang and senior manager Dr. Rain Huang from commercial and corporate finance department were invited by Lex Omnibus to give a CPD course with the topic of “Rules and Regulations on IPO” to lawyers and in-house counsel.

Our firm’s senior associate Mr. Gordon Tsang (Left) and senior manager of commercial and corporate finance department Dr. Rain Huang (Right)

During the 3-hour course, Gordon and Rain gave an in-depth introduction of the rules and practice of Hong Kong’s IPO market and the disclosure of connected transactions. They also analysed the fundamentals of the commercial requirements, legal implications and explained the three pathways of homecoming listings of China concept stocks on the HKEX.

Due to the Covid-19 outbreak, the course was delivered via a webinar and positive feedback was received from the audience.

Please contact Mr. Gordon Tsang for any enquiries or further information about this seminar.

Our Partner and head of Litigation and Disputes Resolution Department, Ms. Heidi Chui, has been recognized as a Distinguished Practitioner in Dispute Resolution by Asialaw Leading Lawyers for 2 consecutive years.

Lawyers who have been recognised as Distinguished Practitioner are highly regarded by their peers and possess a strong record and positive client feedback.

Our partner Heidi commented: “I am truly honoured to be recognized by Asialaw Profiles again. I would like to thank our clients for their support and my team for their hard work in the past year. Our team will continue to assist our clients and provide timely solutions to resolve problems encountered by them.”

About Heidi Chui

Heidi is the head of Litigation and Dispute Resolution Department and Banking and Finance Department. She has served as the internal legal advisor of several Chinese banks.

Heidi specializes in commercial litigation, arbitration, insolvency, restructuring, banking and finance, employment law and regulatory enforcement. She has extensive international and cross-border experiences in advising liquidators, receivers, official receivers, creditors and other professionals in charge of insolvency and bankruptcy matters in relation to debt restructuring and cross-border asset tracing. She also acts for banks, borrowers, insurance companies, property management companies, funds, listed companies and financial institutions.

As an extensive legal author and conference speaker, Heidi is frequently invited to share her experiences and insights at different legal talks and seminars. She is the co-author of The Hong Kong Encyclopaedia of Forms and Precedents – Insurance Volume and Hong Kong Chapter of International Insurance Law and Regulation on Thomson Reuters.

Heidi is also an Arbitrator (FCIArb), Mediator, China Appointed Attesting Officer and Civil Celebrant of Marriages.

About Asialaw Leading Lawyers

Asialaw Leading Lawyers identifies the leading individuals in the region, providing an essential source of information for corporate executives, in-house counsel and anyone seeking legal advice and services. Distinguished practitioners are Lawyers who are highly regarded by their peers and possess a strong record and positive client feedback.

Please contact Ms. Heidi Chui (heidichui.office@sw-hk.com) for any enquiries or further information.

On 10 September 2020, the Private Wealth Management Association (PWMA) and Society of Trust and Estate Practitioners (STEP) HK co-organised a webinar themed “Practical Considerations on Managing Wealth and Assets of Vulnerable Clients”, addressing members, including private bankers, trustees, lawyers and accountants, on business social responsibility and ethics when serving vulnerable clients.

Our firm’s partner, Ms. Sherlynn Chan, TEP, together with two other TEP members, Ms. Joanna Caen, Managing Director of PraxisIFM and Mr. Ken To, Barrister of Sir Oswald Cheung’s Chambers were the speakers. The topic of the webinar was well received and attracted over 110 participants.

With the rapidly ageing population, the webinar aimed to raise awareness amongst the audience on the importance of issues relating to mental capacity, protection of vulnerable clients, and ethical banking.

For more information on this webinar, please go to the following links: PWMA, STEP HK.
Please contact Ms. Sherlynn Chan for more information or further enquiries.

On 14 September 2020, Wendy Lam, partner and head of SW Private Client Department, was invited to speak at a 2-day virtual conference titled “Supporting, Healing, Reconstructing – The New Landscape” by The Law Society of Singapore.

The 3rd annual Family Conference aimed to benefit practitioners in the field with updates of the multifaceted developments in family law. Different expert panels with prominent local and foreign judges, practitioners and academics covered different perspectives on topics that are central to the practice of family law. Wendy discussed the multiplicity of proceedings in family and probate matters from a Hong Kong perspective, and explored with the co-panellists from Singapore and Malaysia the challenges faced in different jurisdictions.

The conference was a huge success which was widely covered in the local press and attracted more than 400 participants.

Please contact Ms. Wendy Lam for more information or further enquiries.

In most Hong Kong divorce proceedings, an application for maintenance pending suit (“MPS”) is one of the crucial matters for consideration.  It often takes a year for a divorce and even longer when there are disputes in the main suit, custody and welfare of children of the family, and/or ancillary relief and division of the matrimonial assets. Can a party to the divorce proceedings receive maintenance in any kind if he/she does not have sufficient financial resources pending suit?

According to section 3 of the Matrimonial Proceedings and Property Ordinance (Cap. 192) (“MPPO”), Hong Kong Court has the discretion to order a party to the divorce proceedings to pay MPS to the other party.  If the financially weaker spouse and/or the children do not have sufficient financial resources to sustain their expenses, the spouse can apply to the Court for MPS.  If granted, the Court normally orders payments for MPS to commence immediately, which lasts until the final ancillary relief order or further order of the Court.  In making such order, the Court is required to balance the reasonable needs of the applicant spouse and/or the children against the paying spouse’s ability to pay by adopting a broad brush approach.

However, after the MPS Order has been awarded, either party can apply for variation of the said Order due to any change in his/her financial circumstances such as income, assets and/or liabilities. Since the variation will have great impact on the party receiving the MPS, the Court will take extra care in considering any variation application.

In this article, we will share and explain the legal issues in KCMA v ABC and others [2020] HKCFI 1078 in relation to an application to vary the MPS Order.

Background

We acted for the Wife who successfully defended against the Husband’s application to adjust the MPS Order downward at the High Court on an urgent basis during the General Adjourned Period enforced by the Judiciary during the COVID-19 crisis. Pursuant to the previous MPS Order made by consent, the Husband was to pay, amongst others, MPS for the Wife at HK$26,450 per month and MPS for the 3 children at HK$79,350 per month (HK$26,450 for each child).

The Husband sought to reduce the MPS to HK$13,600 per month for the Wife and HK$13,600 per month for each child on the basis that there had been a material decrease in his income.

Legal Principles

Section 11(1) of MPPO empowers the Court to vary or discharge the order of financial provision; section 11(7) of MPPO stipulates that in exercising the power under section 11(1), the Court is required to have regard to all the circumstances of the case and any changes on matter to which the Court was required to have regard when making the MPS Order.

In addition, the Court cited the principles from a Court of Appeal judgment AEM and VFM [2008] 3 HKLRD 36, CACV 261/2006:

• According to s.11(7) MPPO, the Court is required to consider all the circumstances of the case. 

• The Court is not required to proceed from the starting point of the original order but look at the matter afresh.

• Any change in any of the matters to which the Court was required to consider when making the original order must be taken into account. For example, the increase in spending necessitated by the growth of children, the adverse impact arisen out of increasing living cost etc. An increase in the wealth of the husband was a relevant factor to be taken into account.  

• The basis and intended effect of the original order are relevant factors to which the Court on variation should pay regard and there should not be a radical departure from the approach taken by the parties themselves when they entered into an agreement embodied in a consent order.

Court’s Decision

The husband’s application was refused based on the abovementioned statutory and common law principles.  The Court had taken into consideration the following factors:

• The Husband contended that his income was gravely reduced by 40%. The Court compared the husband’s income as at 11 December 2018 (the date on which the MPS order was made) and his present income, his then and present assets and liabilities, comprehensively considered the Husband’s living expenses and reasonable needs, and came to the conclusion that there was no evidence to support the Husband’s case that his income had been reduced by 40%.

• The Court further considered the Wife’s income, assets and liabilities, the children’s and her living expenses and reasonable needs. The Court emphasised that the Wife was a housewife and was wholly financially dependent on the Husband.  There was no evidence suggesting there was any alternative source of income available to her.  The Court therefore considered that the original MPS Order was reasonable in maintaining the Wife and their children’s daily expenses.

After considering all the factors, the Court decided that the Husband was able to afford the MPS, and that even after paying the MPS, he would still have the funds to cover his daily expenditures.

Although the Husband claimed that the duration of the MPS Order was unexpectedly long, the Court pointed out that the MPS Order had been made by consent, and was based on the Husband’s average income for at least 3 years. There was no evidence that the parties had intended that such agreement was to be re-visited or varied annually.

Commentary

MPS is an important matter to be considered in the divorce proceedings. The Court is required to balance the reasonable needs of the applicant spouse and/or the children against the paying spouse’s ability to pay by adopting a broad brush approach.

When either party subsequently seeks to vary a MPS Order, the Court will carefully scrutinise the application.  As the Court of Appeal principle cited by the judge in the present case, “the basis and intended effect of the original order are relevant factors to which the Court on variation should pay regard, and there should not be a radical departure from the approach taken by the parties themselves when they had entered into an agreement embodied in a consent order”.

This article is co-authored by our experienced Private Client Team – our Partners Catherine Por and Wendy Lam, and our Senior Associates Karl Wong and Calvin Lo. Please contact our Catherine Por or Wendy Lam for any further enquiries or information.

This newsletter is for information purposes only. Its content does not constitute legal advice and should not be treated as such. Stevenson, Wong & Co. will not be liable to you in respect of any special, indirect or consequential loss or damage.

The Cayman Islands have long been the pre-eminent jurisdiction for investment funds which typically take the form of a segregated portfolio company (“SPC”) or a limited partnership despite its high formation and maintenance cost.  It is mainly due to the fact that the Cayman Islands have no direct taxes of any kind.  However, its tax efficiency has been largely discoloured by legislation in relation to economic substance.

In an attempt to attract investment funds to establish and operate in Hong Kong and lead Hong Kong into becoming a premier international asset and wealth management centre, the Hong Kong Government has made great effort to further enhance Hong Kong’s position in asset and wealth management by diversifying Hong Kong’s fund structures and offering tax relief.  Further to the introduction of the new open-ended fund company regime in July 2018, the Limited Partnership Fund Ordinance (Cap. 637) (the “Ordinance”) came into effect on 31 August 2020, under which a new fund structure named limited partnership fund (“LPF”) is now available within the international financial hub.

A LPF is a private fund that is structured in the form of a limited partnership.  LPFs established under the Ordinance will not only enjoy the necessary contractual flexibility and flexibility in capital contribution and distribution of profits, but it also provides tax exemptions as well as simplified registration process and dissolution mechanism.

The table below makes a brief comparison of the major elements of the most popular investment vehicles in Cayman Islands, i.e. SPC and exempted limited partnership (“ELP”), with the forthcoming LPF regime in Hong Kong :-

While SPC, ELP and LPF all feature high privacy and tax exemption, and are free from exchange control, Hong Kong LPF is relatively cost-effective by way of its one-off registration fee and relatively low sustaining fee, and unlike running a segregated portfolio company, the LPF has streamlined management which further reduces the administrative costs.  Moreover, its simplified registration procedures allow the investors and fund managers to manage and operate the investment vehicles more easily.

Subsequent to the implementation of the economic substance requirements in the Cayman Islands in January 2019, unless there are special needs for mechanism of segregated portfolios (e.g. investors wishing to switch their investments and/or assets between segregated portfolios at some point during the term), the Hong Kong based LPF would be a favourable option for investors from Hong Kong and all over the world.

For more information or advice on the Hong Kong Limited Partnership regime please contact Hank Lo, Osbert Hui or Ann Chan.

This newsletter is for information purpose only. Its content does not constitute legal advice and shall not be treated as such. Stevenson, Wong & Co. will not be liable to you in respect of any special, indirect or consequential loss or damage.